51:0491(42)NG - - AFGE Local 32 and Office of Personnel Management, Washington, DC - - 1995 FLRAdec NG - - v51 p491



[ v51 p491 ]
51:0491(42)NG
The decision of the Authority follows:


51 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 32

(Union)

and

U.S. OFFICE OF PERSONNEL MANAGEMENT

WASHINGTON, D.C.

(Agency)

0-NG-2245

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

November 6, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal.(1) For the reasons which follow, we find that the proposal, which establishes competitive areas to be used in conducting reductions in force (RIFs) within the Agency's central office, is not within the Agency's duty to bargain under section 7117 of the Statute.

II. Background

The Agency notified the Union that it proposed to revise a chapter of its internal regulations entitled "Reduction in Force."(2) Among other things, the revised chapter modified the Agency's competitive areas to provide:(3)

(1) OPM central office competitive areas:

(a) Each of the following Services, Offices, or organizations will constitute a separate competitive area: Human Resources Systems Service, Workforce Training Service, Retirement and Insurance Service, Employment Service, Office of Merit Systems Oversight and Effectiveness, Office of Executive Resources, Office of Human Resources and Equal Employment Opportunity, Office of General Counsel, Office of Contracting and Administrative Services, Office of the Chief Financial Officer, Office of Information Technology, Federal Quality Institute, and the Office of the Inspector General.

(b) In the Investigations Service, the Office of Federal Investigations Headquarters and the six divisions which perform investigative functions in specific field locations will each comprise separate competitive areas.

(c) The Office of the Director and all staff offices reporting to the Director, OPM, not listed above constitute a single competitive area.

Agency Statement of Position, Attachment 2.

In response to the Agency's invitation that the Union submit "negotiable proposals that are within the scope of bargaining relating to [the chapter]," id. at Attachment 1, the Union submitted the following proposal, which is the subject of this negotiability proceeding:

OPM central office competitive areas:

(a) Each of the following services will constitute a separate competitive area: Human Resources Systems Service, Employment Service, Retirement and Insurance Service, Workforce Training Service, and the Investigations Service.

(b) The Office of the Inspector General will constitute a separate competitive area.

(c) The Office of the Director and all other organizations not listed above will constitute a single competitive area.

Petition for Review, Enclosure 2.

III. Positions of the Parties

A. Agency

The Agency claims that the Union's proposal is "nonnegotiable" because it would establish competitive areas for all employees in its organizations and, thereby, "would directly implicate and, consequently, regulate the conditions of employment of the supervisory and managerial personnel within those organizations." Statement of Position at 4. According to the Agency, the Statute, both by its express terms,(4) and as interpreted by the United States Court of Appeals for the D.C. Circuit,(5) "forbids unions to negotiate over the conditions of employment of managers and supervisors." Id. at 3.

The Agency acknowledges that, to be consistent with 5 C.F.R. § 351.402(b), a competitive area may not be defined to include only bargaining unit employees.(6) The Agency also acknowledges that, in a previous decision, the Authority found negotiable a competitive area that included unit and nonunit, supervisory and managerial employees because, according to the Authority, the breadth of the proposal resulted not from the union's intent to regulate the working conditions of the nonunit employees, but from the union's need to conform to the requirements of applicable regulations.(7) However, the Agency offers two arguments that the previous decision should not be applied to find that the proposal in this case is within the duty to bargain.

First, the Agency submits that, insofar as the Authority's decision in National Weather Service was based on the union's intent in that case, the instant case is distinguishable because the Union in this case never intended to restrict the competitive areas to unit employees. Second, the Agency claims that the decision in National Weather Service is inconsistent with both a later Authority decision finding a proposed competitive area nonnegotiable(8) and with Cherry Point. The Agency argues that, under Cherry Point, "the content of the proposal and not the subjective intent of the bargaining representative . . . governs the negotiability of the proposal." Statement of Position at 15.

B. Union

The Union argues that the competitive areas set forth in the Agency's revised regulations are inconsistent with 5 C.F.R. § 351.402(b). According to the Union:

Contrary to regulations, OPM has drawn competitive areas that are smaller than the entire agency (some are subdivisions, which are called "Groups, i.e. Service," and some are conglomerations of even smaller, unrelated organizational entities). This type of narrow competitive area would allow for an agency to selectively target employees and would effectively reduce the "bumping and retreat" rights of employees that are affected by the RIF, thereby increasing the probability of employees suffering an adverse action.

Petition for Review at 2.(9)

The Union claims that its proposal is negotiable based on National Weather Service. The Union asserts that it does not intend to determine competitive areas for supervisory or management personnel and, like the proposal in National Weather Service, the proposal in this case only "incidentally includes supervisory employees." Union Response at 8. The Union argues that this case is distinguishable from IFPTE because, unlike the proposal in IFPTE, its proposal does not implicate any bargaining units represented by other unions.

IV. Analysis and Conclusions

A. Introduction

This case presents questions concerning the circumstances in which the duty to bargain set forth in section 7117 of the Statute extends to bargaining proposals directly implicating persons outside a union's bargaining unit. In particular, this case involves a bargaining proposal which concerns supervisors and managerial personnel, who are not in the Union's (or any) bargaining unit. Neither the questions nor the context in which they arise here is a matter of first impression for the Authority. E.g., National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA 254 (1983). Unfortunately, as fully discussed infra, previous decisions involving this issue have reached different conclusions, to some extent in response to appellate court rulings.(10) Because such instability breeds protracted litigation rather than the resolution of disputes, we take this opportunity to review the relevant statutory provisions and precedent involving this issue, and to clarify the principles we apply in this and future cases.(11)

B. Statutory Provisions

We begin our analysis with the wording of the Statute,(12) which draws critical distinctions based on the status of employees who seek to exercise rights under the Statute or on whose behalf a labor organization seeks to exercise rights.

The Statute provides rights, including the right "to engage in collective bargaining with respect to conditions of employment," to covered Federal "employees." 5 U.S.C. § 7102(2). The term "employee" is expressly defined to exclude supervisory and management personnel. 5 U.S.C. § 7103(a)(2). There is, therefore, no question that supervisory and management personnel are not granted bargaining or other rights under the Statute.

It is similarly clear that, with a "grandfathering" exception not relevant here,(13) supervisors and managers may not be included in any bargaining unit found appropriate under the Statute, 5 U.S.C. § 7112(b)(1). Further, a union is not entitled to bargain on behalf of employees other than those in the bargaining unit for which it is the exclusive representative. A review of relevant statutory provisions demonstrates this limitation.

In this regard, the Statute establishes that a union's rights to bargain and to take other actions are confined to matters pertaining to the employees in its bargaining unit. Specifically, section 7114(a)(1) provides that a union "which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit." (Emphases added.)

Other statutory provisions, when read together, also expressly link a union's bargaining rights, and conversely, an agency's obligations, to employees in the union's bargaining unit.(14) Section 7114(a)(2) requires agencies and exclusive representatives to negotiate in good faith "for the purposes of arriving at a collective bargaining agreement." A "collective bargaining agreement" is defined, in section 7103(a)(8), as an agreement entered into as a result of "collective bargaining . . . ." Finally, "collective bargaining" is defined in section 7103(a)(12) as the "mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit to . . . bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees . . . ." (Emphases added.)

C. Authority and Judicial Precedent

        1. Scope of Mandatory Bargaining

Consistent with the foregoing statutory provisions, the Authority has held that a "matter proposed to be bargained is outside the duty to bargain if it does not concern conditions of employment of bargaining unit employees." International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and International Plate Printers, Die Stampers and Engravers Union of North America, Local Nos. 2, 24, and 32 and Graphic Communications International Union, Local No. 285 and International Association of Siderographers, Washington Association and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681 (1995) (BEP), petition for review filed sub nom. U.S. Department of the Treasury, Bureau of Engraving and Printing v. FLRA,No. 95-1499 (D.C. Cir. Sept. 28, 1995) (citation omitted).(15)  

More specifically, the Authority has held that an agency has no duty to bargain with a union over matters relating to nonunit, supervisory positions because such matters do not concern conditions of employment affecting unit employees. For example, in National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA 290 (1980) (Department of Labor), the disputed proposal specified the procedures by which the agency would fill supervisory or management positions with unit employees. The Authority held the following:

The proposal puts conditions on filling supervisory and management positions which are outside the unit and may not be included in appropriate units by operation of section 7112(b)(1) of the Statute. An exclusive representative's obligation and correlative rights, however, extend only to employees in the unit . . . . Thus, as the proposal goes beyond the representation rights of the exclusive representative and does not directly relate to conditions of employment of unit employees, it is outside the duty to bargain under the Statute.

Id. at 292 (footnote omitted).(16) The Authority's conclusion that bargaining was not required on the proposal is, in turn, consistent with that reached by the Federal Labor Relations Council in construing analogous provisions of Executive Order 11491, as amended. See Texas ANG Council of Locals, AFGE and State of Texas National Guard, 4 FLRC 154, 157 (1976).

2. The Vitally Affects Test Exception

The Authority has carved a narrow exception to this limitation on the duty to bargain under the Statute. Under this exception, an agency may be obligated to bargain with a union over matters that directly affect individuals other than unit employees insofar as such matters "vitally affect" the terms and conditions of employment of unit employees. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1416-21 (1992) (Health Care Financing) (proposal that equal employment opportunities be provided to prospective employees held within the duty to bargain because it vitally affected conditions of employment of unit employees and was not otherwise prohibited from bargaining). The "vitally affects" test, enunciated by the United States Supreme Court in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co. Chemical Division, 404 U.S. 157 (1971) (Pittsburgh Plate Glass), looks to the nature and extent of the impact on unit employees' working conditions of a bargaining proposal that directly implicates matters involving third parties. The Court stated that, in examining and assessing whether an employer is required to bargain over matters relating to third parties:

[T]he question is not whether the third-party concern is antagonistic to or compatible with the interests of bargaining-unit employees, but whether it vitally affects the "terms and conditions" of their employment.

Id. at 179 (footnote omitted).(17)

The "vitally affects" test was adopted by the Authority in AFGE III at the strong suggestion of the United States Court of Appeals for the D.C. Circuit in two previous decisions involving the same parties and the same issue as the case now before us. See Local 32, American Federation of Government Employees, AFL-CIO v. FLRA, 774 F.2d 498 (D.C. Cir. 1985) (OPM I), remanding American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984) (AFGE I); OPM II, remanding AFGE II.(18) In adopting the vitally affects test, the Authority stated that it would find a proposal negotiable if it "(1) vitally affects the working conditions of unit employees, and (2) is consistent with applicable law and regulations." AFGE III, 33 FLRA at 338. Concluding that the Union's proposed competitive area satisfied both requirements, the Authority found it negotiable. On review, the D.C. Circuit enforced the Authority's decision. OPM III, 905 F.2d at 435. The court refused to consider the petitioners' objection, raised for the first time on appeal to the court, "to the use of the private sector 'vitally affects' standard . . . ." Id.

Subsequent to AFGE III, the Authority applied the vitally affects test in a number of negotiability cases in which disputed proposals affected nonunit employees. E.g., International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 38 FLRA 1451, 1454-56, 1460-62 (1991) (Naval Aviation), remanded and vacated sub nom. Cherry Point (proposals concerning competitive areas for promotion purposes and parking). Some of these cases involved proposals concerning competitive areas for RIF purposes. E.g., American Federation of Government Employees, Council of Marine Corps Locals (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA 1023, 1030-33 (1990) (Marine Corps).(19)

Consistent with the clear focus of the vitally affects test on unit employees, neither the effect on, nor the supervisory or other status of, the third parties was deemed relevant to these negotiability determinations. E.g., Naval Aviation, 38 FLRA at 1454 ("the proposal's effect on nonunit employees or positions is not a factor in making the negotiability determination"); Marine Corps, 35 FLRA at 1032-33 ("The fact that some of these nonunit employees may be in bargaining units represented by other unions . . . does not affect our analysis of the proposal's effect on bargaining unit employees.").

3. Cherry Point and its Application by the Authority

a. Cherry Point

On review of Naval Aviation, the D.C. Circuit "approve[d] the Authority's decision to adopt the 'vitally affects' test[.]" Cherry Point, 952 F.2d at 1439. However, in two respects, the court rejected the Authority's construction of the test.

First, the court held that the vitally affects test is "not implicated . . . merely because a union proposal, which is otherwise within the scope of mandatory bargaining, would, if accepted, have some impact on persons outside the bargaining unit." Id. at 1440 (emphasis in original). According to the court, the test "has no application unless the interests of non-bargaining unit personnel are 'directly implicated' by a union proposal . . . ." Id. at 1441. In the court's view, the Authority's statement of the test could unduly restrict the scope of mandatory bargaining under the Statute by requiring a proposal that otherwise fell within the duty to bargain to meet the additional requirement that it vitally affect unit employees' conditions of employment.

Second, the court held that, in applying the vitally affects test to proposals that directly implicate third-party interests, it is necessary to distinguish among four "'third party' groups": (1) employees in other bargaining units; (2) supervisory personnel; (3) non-supervisory employees who are not represented; and (4) nonemployees. Id. at 1442. According to the court, the test could not properly be applied to require bargaining over conditions of employment of the first two categories of employees: employees in other bargaining units and supervisory personnel. With respect to employees in other bargaining units, the court stated that the test could not overcome "the far more fundamental principles involving the sanctity of certification/recognition and exclusive representation." Id. As for supervisory personnel, the court stated that, as supervisors "are members of management and are legally disabled from belonging to any bargaining unit . . . the same policies that prevent a union from purporting to regulate the conditions of employment of persons in other units apply with equal force to supervisory personnel." Id. (citing Department of Labor, 3 FLRA at 292).(20)

In effect, the court in Cherry Point held that the identity of the third party that is affected by a proposal is relevant in determining whether the proposal is within the duty to bargain.(21) When a proposal directly implicates employees in other bargaining units and/or supervisory personnel, the effect of the proposal on unit employees is not sufficient--even if it is "vital"--to bring the proposal within the duty to bargain. In such circumstances, the vitally affects test does not apply.

b. Authority's Application of Cherry Point

The Authority has applied the reasoning of the court in Cherry Point in a series of decisions concerning whether proposals that directly implicated individuals outside the union's bargaining unit are within the duty to bargain.(22) These decisions have involved three types of bargaining proposals: (1) those that directly implicated nonemployees; (2) those that directly implicated employees in other bargaining units; and (3) those that directly implicated supervisory personnel.(23)

In the first category, the Authority has applied the vitally affects test in analyzing one proposal that directly implicated third parties who were not employees, the same category addressed by the Court in Pittsburgh Plate Glass, under the vitally affects test. Health Care Financing, 44 FLRA at 1416-17 (proposal that equal employment opportunities be provided to prospective employees). The proposal was found to be within the duty to bargain because it vitally affected unit employees' conditions of employment and was not otherwise prohibited from bargaining.

With regard to proposals directly implicating employees in other bargaining units, the Authority has concluded that the vitally affects test does not apply and, accordingly, that such proposals are outside the duty to bargain. E.g., Office of Hearings and Appeals, 49 FLRA at 1089 (proposal establishing criteria by which employees in another bargaining unit would qualify for parking permits). In one of these decisions, IFPTE, 47 FLRA at 1089, the Authority found a proposed competitive area for RIF purposes outside the duty to bargain insofar as it encompassed employees in other bargaining units.

Finally, with regard to proposals directly implicating supervisory personnel, the Authority similarly has held, with one exception, that the vitally affects test does not apply and, accordingly, that such proposals are outside the duty to bargain. E.g., Health Care Financing, 44 FLRA at 1422-24 (proposal that managers and supervisors be held accountable for successful implementation of affirmative employment program). The exception is National Weather Service, the decision relied on by the Union in this case. National Weather Service is the only post-Cherry Point case in which the Authority found a proposal that directly implicated supervisory employees to be within the scope of mandatory bargaining.

4. National Weather Service

The proposal at issue in National Weather Service, like the proposal here, concerned competitive areas for RIF purposes. The Authority concluded that, although the proposed competitive area encompassed, and thereby directly determined the conditions of employment of, supervisors,(24) it was within the duty to bargain consistent with the court's decision in Cherry Point.(25) National Weather Service, 44 FLRA at 29. According to the Authority:

[T]he fact that the competitive areas defined by the provision . . . encompass management personnel as well as bargaining unit employees does not indicate that the Union is seeking to regulate the conditions of employment of the management personnel. Rather, it represents an effort to draft a proposal directly affecting the competitive areas of bargaining unit employees that meets the regulatory requirements governing the definition of competitive areas. Therefore, . . . the Union does not, through the provision . . . purport or seek to regulate the terms and conditions of employment of management personnel.

Id. at 28.

On review, the D.C. Circuit concluded that it lacked jurisdiction to consider the agency's argument that the proposal should have been found nonnegotiable based on its effect on supervisors and managers because that argument had not been made to the Authority and, instead, had been raised for the first time before the court. Commerce, 7 F.3d at 246. In particular, the court rejected the agency's assertion that it would have been futile for it to make the argument to the Authority in a request for reconsideration of the National Weather Service decision. In the court's view:

[T]he Authority's reasons for distinguishing Cherry Point seem to us rather tenuous. We therefore suspect that if the government had provided the FLRA the cogent arguments presented to this court, the FLRA may well have reconsidered its decision.

Commerce, 7 F.3d at 245-46.

5. IFPTE

In IFPTE, 47 FLRA 1086, the Authority considered a union proposal that the competitive area for RIF purposes "shall be all commands at Mare Island represented by" a particular local of the union. Id. at 1087. The Authority noted that the union held exclusive recognition in three organizational entities at Mare Island, and that there were other bargaining units, represented by other unions, also located there.

The Authority found that the meaning of the proposal was unclear. In particular, the Authority concluded "that the plain wording of the proposal, and the [u]nion's somewhat inconsistent statements of intent, support[ed] two different interpretations of the proposal." Id. at 1088. In this regard, the Authority did not consider, as it had done in National Weather Service, whether the union sought to accomplish anything different from what the proposal would in fact accomplish. Instead, the Authority analyzed the proposal under the two possible interpretations of what the proposal would accomplish. The Authority found that under the first (whereby the proposed competitive area included only unit employees), it was inconsistent with 5 C.F.R. § 351.402, and under the second (whereby the competitive area included employees represented by other unions), it was outside the duty to bargain consistent with the analysis in Cherry Point.

D. Application of the Statute and Precedent in This Case

Under National Weather Service, a proposal creating a competitive area that includes supervisory employees may be within the duty to bargain if it can be established that the union "does not . . . purport or seek to regulate the terms and conditions of employment of management personnel." National Weather Service, 44 FLRA at 28. Because this conclusion departs from the weight of other Authority precedent in the aftermath of Cherry Point, and in view of the observation of the court in Commerce that the Authority's reasons for distinguishing Cherry Point were "tenuous," 7 F.3d at 245-46, we find it appropriate to reconsider the Authority's decision. For the reasons that follow, we conclude that the analysis the Authority articulated in National Weather Service is without support in the Statute or relevant case law.

First, we find no statutory basis for the proposition that, in determining whether a proposal concerns a condition of employment of unit employees, it is appropriate to rely on what the union seeks to accomplish rather than what the proposal would, in fact, accomplish, when the two are inconsistent. The legislative history of the Statute likewise produces no support for discounting the effect of a proposal in this way.

In addition, this proposition contradicts longstanding Authority precedent. A union's statement of the meaning of a proposal, sometimes referred to as the union's "intent," often is used as an aid in interpreting a proposal. E.g., National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America and American Federation of Government Employees, Local 1812, 49 FLRA 1262, 1318 (1994). Indeed, section 2424.4(a)(2) of the Authority's Regulations requires a union to include in a petition for review, among other things, "[a]n explicit statement of the meaning attributed to the proposal by the exclusive representative . . . ." In situations where a proposal concerns a "particular work situation, or other particular circumstances," the statement of meaning must include "a description of the situation or circumstances which will enable the Authority to understand the context in which the proposal is intended to apply[.]" 5 C.F.R. § 2424.4(a)(2)(ii) (emphasis supplied).

However, where the union's asserted intent or meaning is inconsistent with the plain wording of a proposal, it is not given effect. E.g., National Federation of Federal Employees, Local 251, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 10, 49 FLRA 1070, 1081 (1994). That the disputed proposal in this case encompasses supervisory and managerial personnel is clear and not denied by the union. Giving effect to a union's assertion that it does not intend the result that clearly flows from its proposal would depart from this longstanding Authority precedent.

Next, to the extent that such a departure in National Weather Service was premised on either the application of the vitally affects test in the private sector, or the court's decision in Cherry Point, we conclude that it was not well-founded.

With respect to the private sector application of the vitally affects test, it is clear that this exception to the traditional scope of bargaining is narrow. See Cherry Point, 952 F.2d at 1440. We have found no cases supporting application of this doctrine, or any other private-sector precedent, to determine that a proposal is within the duty to bargain based on what motivated a union's proposal, rather than what the proposal would do. Cf. Pittsburgh Plate Glass, 404 U.S. at 179 ("question is . . . whether the third-party concern . . . vitally affects the 'terms and conditions" of . . . employment.") (footnote omitted).

With respect to Cherry Point, we note that the Authority discussed the court's ruling as "bear[ing] on" its decision in National Weather Service. 44 FLRA at 26. In finding that the Union did not "purport" or "seek to regulate" the conditions of employment of management personnel, 44 FLRA at 26 n.2, 28, the Authority utilized terms used by the court in its decision. See Cherry Point, 952 F.2d at 1443 (the "proposals seek to regulate the conditions of employment of members of other bargaining units and supervisory personnel"; the proposals are "non[]negotiable to the extent that they purport to regulate the conditions of employment of supervisory personnel and employees in other bargaining units[.]") (emphases added). The Authority used these terms to warrant consideration of why the union acted as it did and what it wanted to accomplish. The Authority construed the terms as permitting consideration of what the Union intended to regulate based on the "circumstances" presented. National Weather Service, 44 FLRA at 28. Among the circumstances considered relevant was the fact that, in order to satisfy Government-wide regulations, the union was "forced to define any competitive area in terms that include non-unit employees". Id. Also, the Authority considered relevant the fact that the union had originally proposed language directed solely to bargaining unit employees. Id. Based on these facts, the Authority concluded that the union had "demonstrated no interest in determining the competitive area for management personnel but rather [was] concerned solely with the interests of the bargaining unit employees." Id.

There are two difficulties with viewing this analysis, as the Authority did, id. at 26, as consistent with, and deriving support from, Cherry Point. First, in concluding that the vitally affects test does not apply to proposals directly implicating supervisory personnel, the court in Cherry Point was confirming that the test defined a "limited" exception to the traditional scope of the duty to bargain. Cherry Point, 952 F.2d at 1440. The decision does not provide support for either expanding the vitally affects exception, or carving a further exception based on what a union has an "interest" in accomplishing or is "forced" to do. Second, although it is possible to interpret the terms "seek" and "purport" to refer to what a union wants to accomplish (and why), rather than what the proposal it seeks to bargain over will in fact accomplish, when (as in National Weather Service and here) the two are plainly at odds, this construction reads too much into Cherry Point. Given the context in which the terms "seek" and "purport" appear in the court's decision, it is not apparent that the court intended them in the sense that the Authority used them in deciding National Weather Service. See Commerce, 7 F.3d at 245-46.

Finally, the approach articulated by the Authority in National Weather Service was not followed in the subsequent case that raised similar issues: IFPTE. The Union attempts in this case to distinguish its proposal from IFPTE on the basis that its proposed competitive areas would not encompass employees in any other bargaining units. However, under the reasoning in Cherry Point, regulation of working conditions of employees in other bargaining units is proscribed to the same extent as supervisory employees. If "intent" in the manner used by the Authority in National Weather Service is a relevant concept, it is relevant to the same extent in both situations.

We are unable to reconcile the Authority's decisions in IFPTE and National Weather Service. In view of the absence of any grounding in either the Statute or private sector labor law, and the weight of Authority precedent that National Weather Service counters, we conclude that the approach it adopted should no longer be followed.

The arguments in this case do not persuade us that the Union's proposal, which directly determines the working conditions of supervisory personnel, is within the duty to bargain. We recognize that this conclusion places the Union in a "catch-22" situation--because the inclusion of supervisors in the proposed competitive area is, as the Union states, Response at 7, the "unavoidable" result of complying with 5 C.F.R. § 351.402. We also are mindful that two Authority decisions finding proposed competitive areas that encompassed supervisory employees to be within the mandatory scope of bargaining, National Weather Service and AFGE III, have been enforced by the D.C. Circuit. Commerce; OPM III. Indeed, the D.C. Circuit's decisions in OPM I and II "pushed the FLRA into exactly the position it . . . adopted" in AFGE III. OPM III, 905 F.2d at 435 (Silberman, J., concurring). Given this, and the evident significance of competitive areas to the working conditions of employees, see AFGE II, 33 FLRA at 339, we do not reach our decision lightly. However, for the reasons set forth above, we conclude that the Agency is not required to bargain over the proposal, and we dismiss the Union's petition for review.

V. Order

The Union's petition for review is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Subsequent to filing its petition for review, the Union initiated two related proceedings. The Union filed a request for assistance with the Federal Service Impasses Panel (Panel). At the Union's request, the Authority placed this negotiability appeal in abeyance pending the outcome of proceedings before the Panel. The Union also filed an unfair labor practice charge with the Washington, D.C. Regional Office of the Authority and, in accordance with section 2423.5 of the Authority's Regulations, elected to proceed with the charge before this appeal. Subsequently, the Authority issued an Order to Show Cause why this negotiability appeal should not be taken out of abeyance, noting that negotiability issues were inextricably connected with the other pending proceedings and that those issues would be more expeditiously resolved herein. In response, the Union asserted that, as its proposal is clearly negotiable based on existing precedent, the Authority should process the unfair labor practice charge first because that proceeding will result in an effective remedy for the Agency's alleged unlawful actions. The Agency asserted that the negotiability appeal should be resolved first to expedite determining the negotiability of the disputed proposal and because there is inconsistent Authority precedent, which should be addressed in the first instance by the Authority, on the issues raised by the Union's proposal. By Order dated September 29, 1995, the Authority notified the parties that the negotiability appeal was no longer in abeyance and that processing of the appeal was being resumed. As stated in the Order: (1) the Panel declined to assert jurisdiction over the Union's request for assistance; and (2) a review of the negotiability issue involved in all three proceedings may be obtained more directly and expeditiously in the negotiability proceeding. On October 17, 1995, the Union submitted to the Authority a four-page facsimile. The document did not contain a statement of service. Pursuant to 5 C.F.R. §§ 2424.8, 2429.24(e), and 2429.27, the document has not been considered.

2. A RIF occurs when an agency decides to eliminate an employee's position for such reasons as a lack of work or a shortage of funds. See generally U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976 (D.C. Cir. 1990) (MSPB).

3. Employees affected by a RIF "must be allowed to 'compete for retention' with other employees in the same 'competitive area.'" MSPB, 913 F.2d at 977 (citing 5 C.F.R. § 351.402(a)). A "competitive area" is defined in 5 C.F.R. § 351.402(b):

A competitive area may consist of all or part of an agency. The minimum competitive area in the departmental service is a bureau, major command, directorate or other equivalent major subdivision of an agency within the local commuting area. In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined.

See also United States Office of Personnel Management v. FLRA, 905 F.2d 430, 432 (D.C. Cir. 1990) (OPM III) ("A competitive area is simply a grouping of employees within an agency, according to their geographical or organizational location, who compete for job retention when a particular position is abolished . . . . In such circumstances, an employee holding the affected position may be able to prevail over less senior or less qualified employees who hold different positions but are within the same competitive area.") (citations omitted). We note that, in its current form, 5 C.F.R. § 351.402 was promulgated by OPM in 1986, 51 Fed. Reg. 319 (Jan. 3, 1986), as amended at 56 Fed. Reg. 65,416 (Dec. 17, 1991). The regulation largely mirrors a previous provision, promulgated in 1983.

4. The Agency relies on section 7103(a)(2) of the Statute, which defines "employee"; section 7103(a)(12), which defines "collective bargaining"; and section 7112(b)(1), which provides that a bargaining unit may not be determined to be "appropriate" if it includes "any management official or supervisor[.]"

5. The Agency cites United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). See discussion infra, section IV.C.3.

6. There is no dispute that 5 C.F.R. § 351.402(b) is an applicable Government-wide regulation as defined in Authority precedent, National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 755 (1980), and within the meaning of section 7117(a) of the Statute, which provides that the duty to bargain in good faith under the Statute shall not extend to any matter that is inconsistent with a Government-wide regulation. According to the Agency, the regulatory prohibition against a competitive area that includes only unit employees "does not render lawful any attempt to tailor a bargaining proposal to be consistent with OPM's regulations if . . . the proposal would violate the Labor Statute." Statement of Position at 15-16.

7. The Agency cites National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 44 FLRA 18 (1992) (National Weather Service), enforced on other grounds sub nom. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service v. FLRA, 7 F.3d 243 (D.C. Cir. 1993) (Commerce). In National Weather Service, the union initially proposed a competitive area that included only unit employees; the proposal was broadened to include nonunit employees by the Federal Service Impasses Panel to comply with 5 C.F.R. § 351.402(b). See discussion infra, section IV.C.4.

8. The Agency cites International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion Pacific, 47 FLRA 1086 (1993) (IFPTE). See discussion infra, section IV.C.5.

9. The Union's argument regarding the consistency between OPM's revised regulation and 5 C.F.R. § 351.402 does not address the negotiability of the Union's proposal--the only issue before us in this proceeding. Moreover, insofar as the argument suggests that the Authority should invalidate OPM's regulations, such action is beyond our jurisdiction. Cf. American Federation of Government Employees, AFL-CIO v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986) (the court found "no support . . . for . . . argument that the FLRA may rule on the legality or validity of a government-wide OPM regulation."). In these circumstances, we will not address this argument further.

10. Compare American Federation of Government Employees, Local 32, AFL-CIO v. FLRA, 853 F.2d 986 (D.C. Cir. 1988) (OPM II), remanding American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 478, 485 (1986) (AFGE II) with OPM III, enforcing American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988) (AFGE III).

11. We also take this opportunity to clarify our terminology. Bargaining proposals fall into three categories under the Statute: (1) subjects that are within the duty to bargain under section 7117 of the Statute (sometimes referred to as "mandatory" subjects of bargaining); (2) prohibited subjects of bargaining; and (3) subjects that are bargainable at the mutual election of the parties (sometimes referred to as "permissive" subjects of bargaining). Proposals in the first category have been described as "negotiable" by the Authority. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Corps of Engineers, South Pacific Division, San Francisco, California, 51 FLRA 3 (1995) (proposal requiring parties to use particular form to document certain agreements reached during negotiations held negotiable). Proposals in the last two categories generally have been described as "nonnegotiable" by the Authority. See, e.g., Fraternal Order of Police, Lodge 1-F and U.S. Department of Veterans Affairs, Providence Medical Center, 51 FLRA 143, 143 (1995) (proposal affecting agency's right to determine internal security practices under section 7106(a) of the Statute held nonnegotiable); American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical Center, Richmond, Virginia, 48 FLRA 53, 59 (1993) (proposal concerning the numbers of employees assigned to a tour of duty, within the meaning of section 7106(b)(1), held nonnegotiable). Such proposals are outside the duty to bargain under section 7117 because there is no statutory obligation to negotiate over them. In this and future decisions, we will use the language of the Statute, and describe bargaining proposals as either within or outside the duty to bargain under section 7117 of the Statute.

12. As the Authority stated in 7th Infantry Division (Light), Fort Ord, California, 47 FLRA 864, 868-69 (1993):

The task of resolving a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (citation omitted). If the statute's language is plain, that is, if Congress' intent is apparent from the language, "it is also where the inquiry should end, for where . . . the statute's language is plain, the 'sole function of the courts is to enforce it according to its terms.'" Id. (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). See also Overseas Education Association v. FLRA, 876 F.2d 960, 974 (D.C. Cir. 1989) ("[u]nless exceptional circumstances dictate otherwise, '[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.'" (quoting Burlington Northern R.R. Co. v. Oklahoma Tax Commission, 481 U.S. 454, 461 (1987)).

13. Section 7135(a)(2) of the Statute permits:

the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter.

14. The Statute similarly links other union rights to representation of unit employees. E.g., 5 U.S.C. § 7114(a)(2)(A) (union's right to be represented at "formal discussion between one or more representatives of the agency and one or more employees in the unit . . . "); 5 U.S.C. § 7114(a)(2)(B) (union's right to be represented at certain examinations of "an employee in the unit . . . "). (Emphases added.)

15. A bargaining proposal that concerns a condition of employment "must also satisfy other requirements to be negotiable under the Statute: for example, it may not be inconsistent with Federal law, including the Statute, and Government-wide regulations, or an agency regulation for which a compelling need exists." BEP, 50 FLRA at 681, n.7 (citing 5 U.S.C. § 7117).

16. The Authority did not address in Department of Labor whether the disputed proposal could be bargained at the agency's election. However, in a decision issued shortly thereafter, also involving a proposal specifying procedures for filling nonunit positions, the Authority stated that "to the extent that the proposal would apply promotion procedures to nonbargaining unit supervisory positions it is negotiable only at the election of the agency." International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438, 444-45 (1980) (Philadelphia Naval Shipyard). According to the Authority, "[w]hile an agency is not prohibited from bargaining on and, therefore, may, at its election, bargain on the promotion procedures for such nonbargaining unit supervisory positions, it is not obligated to do so." Id. at 445. The Authority recently stated, in dicta, that it would no longer follow Philadelphia Naval Shipyard and other decisions holding that an agency could elect to bargain over such matters. American Federation of Government Employees, Local 2879, AFL-CIO and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074, 1088 n.6 (1994) (Office of Hearings and Appeals). We note that, in Office of Hearings and Appeals, the Authority based its rejection of the Philadelphia Naval Shipyard line of cases on its interpretation of the court's holding in Cherry Point, discussed infra. As neither party addresses this point, we leave for another day whether Cherry Point supports the dicta in Office of Hearings and Appeals.

17. In Pittsburgh Plate Glass, the union sought to bargain over proposals relating to insurance benefits for retired employees. Concluding that the benefits to current employees from bargaining over the proposals were "speculative and insubstantial at best[,]" the Court held that the employer was not obligated to bargain and, therefore, did not violate the National Labor Relations Act (NLRA), 29 U.S.C. § 158, by refusing to do so. 404 U.S. at 180.

18. In AFGE I and II, the Authority had determined that proposed competitive areas for RIF purposes were not within the duty to bargain under the Statute because the areas encompassed nonunit employees. In OPM I, the court noted that the Authority's decision appeared "to be at odds with a familiar principle of private labor law, that a proposal concerning 'terms and conditions of employment' is within the employer's duty to bargain, despite its potential effects on third parties." 774 F.2d at 503. In OPM II, 853 F.2d at 993, the court stated:

[T]he Authority should reconsider the standard that obtains in the private sector. Under that standard, the expert adjudicator inquires only whether vital interests of unit employees would be affected by a given proposal, and permits bargaining over such proposals without regard to the potential effect on nonunit employees.

19. Certain proposals analyzed under the vitally affects test were held to be within the duty to bargain. E.g., Naval Aviation, 38 FLRA at 1454; Marine Corps, 35 FLRA at 1030-33. In contrast, applying this test to other proposals, the Authority found that the effect on unit employees' conditions of employment was not sufficient to bring them within the duty to bargain. E.g., Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36 FLRA 148, 152 (1990) (proposal that all observers at negotiation sessions be in a non-duty status); National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 743-47 (1991) (Naval Underwater Systems) (proposal requiring contractors to test their own employees for illegal drugs).

20. We note that the court did not offer statutory support for the proposition that these fundamental principles and policies could be overcome with respect to the two remaining "third party groups." Like employees in other bargaining units and supervisors, a union is not expressly entitled under the Statute to bargain over either the working conditions of unrepresented employees or in any respect concerning nonemployees. Although the Authority has applied the Supreme Court's vitally affects exception to the mandatory scope of bargaining with respect to nonemployees, e.g., Naval Underwater Systems, the Authority has not addressed the application of the test to unrepresented employees. But cf. Sperry Systems Management Division, Sperry Rand Corp. v. NLRB, 492 F.2d 63 (2d Cir. 1974) (court concluded that union's attempt to bargain on behalf of unrepresented employees constituted a refusal to bargain in good faith under the NLRA; court found no evidence that terms of employment of unrepresented employees affected those of unit employees). As the case now before us does not present this issue, we do not address it here.

21. The court remanded the case to the Authority for further proceedings to determine whether there were "non-unit, non-supervisory employees . . . whose conditions of employment [were] directly implicated" by the proposals and, if there were, whether the vitally affects test had been satisfied. Cherry Point, 952 F.2d at 1443. On remand, the Authority concluded that the record did not permit a construction of the disputed proposals as limited to non-unit, non-supervisory employees and, as such, the proposals were outside the duty to bargain. International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 45 FLRA 1154 (1992).

22. Consistent with the court's decision in Cherry Point, the Authority has found that the vitally affects test is not applicable to proposals that relate principally to unit employees' conditions of employment and do not directly implicate any category of individuals outside the union's bargaining unit. E.g., National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 45 FLRA 1132, 1135-38 (1992) (proposal establishing procedure for selecting unit employees to serve as backups to supervisors).

23. These categories encompass three of the four third-party groups discussed by the court in Cherry Point. As noted in n. 19, supra, the Authority has not addressed the application of the vitally affects test to proposals directly implicating unrepresented employees.

24. The Authority raised the issue of the inclusion of supervisors sua sponte. National Weather Service, 44 FLRA at 26 ("[A]lthough the [a]gency does not raise the issue, we cannot ignore the fact that the competitive areas that