52:0794(78)NG - - AFGE, Local 1336 and SSA, Mid-America Program Service Center - - 1996 FLRAdec NG - - v52 p794

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[ v52 p794 ]
52:0794(78)NG
The decision of the Authority follows:


52 FLRA No. 78

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1336

(Union)

and

SOCIAL SECURITY ADMINISTRATION (1)

MID-AMERICA PROGRAM SERVICE CENTER

(Agency)

0-NG-2210

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(2)

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 three proposals. The three proposals concern the organizational placement of the functions and staff of the Reconsideration Section. For the reasons that follow, we find that the proposals are outside the duty to bargain under section 7106(a)(1) of the Statute because they impermissibly affect the Agency's right to determine its organization.

II. The Proposals

(Proposal 1)

We propose that the Reconsideration Section remain a centralized staff co-located with the Inquiry and Expediting (I&E) Staff, under the I&E Manager or as a self-directed unit.

(Proposal 2)

The Reconsideration Section should be subsumed in toto into the Disability Review Section (DRS) as a specialized unit.

(Proposal 3)

The Reconsideration Section should be restored to its original configuration and should function as a self-directed unit.

III. Background

These proposals are alternatives presented by the Union in response to the Agency's plan to abolish the Reconsideration Section of the Mid-America Program Service Center (MAMPSC) as a centralized unit. As described by the Union, the Reconsideration Section processes "Title II reconsideration cases." Petition at 4. The Agency planned to decentralize the functions of the Reconsideration Section by dividing them among six other sections within MAMPSC. As part of the decentralization, the Agency also planned to distribute the reconsideration reviewers and clerical support personnel assigned to the Reconsideration Section among the six other sections. Subsequent to the filing of the appeal in this case, the Agency implemented the decentralization.

IV. Positions of the Parties (3)

In its petition, the Union asserts that all of the proposals are negotiable at the election of the Agency under section 7106(b)(1) because they concern positions assigned to an organizational subdivision. According to the Union, the proposals would continue the Reconsideration Section as a unit instead of dispersing its function and staff among six other sections.

The Agency asserts that all three proposals are outside the duty to bargain because they pertain to management's right to determine the organization of the agency under section 7106(a)(1). Specifically, the Agency contends that the proposals dictate how it will structure itself to accomplish its mission and functions. In its supplemental submission, the Agency maintains that the proposals are not electively negotiable under section 7106(b)(1). The Agency argues that these proposals are predicated on retaining the Reconsideration Section as a centralized component and do not affect the numbers, types and grades of employees or positions assigned to that component.

V. Analysis and Conclusions

1. Meaning of the Proposals

In interpreting a disputed proposal, the Authority first looks to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995).

It is evident from the plain wording of each of these proposals that they establish three alternative organizational configurations in which to locate the functions previously performed by the Reconsideration Section. The first proposal would establish a centralized staff co-located with the I&E Staff; the second proposes a specialized unit within the DRS; and the third proposes restoration of the Reconsideration Section as it existed prior to decentralization. Put simply, by their express terms, the proposals dictate how the Agency would be organized for purposes of accomplishing the work previously assigned to the Reconsideration Section.

The Union's explanation indicates that it intends the three proposals also to address the staffing of the proposed organizational configurations. Under Proposal 1, the reconsideration reviewers and clerical staff previously assigned to the Reconsideration Section would be assigned to the centralized staff co-located with the I&E Staff. Under Proposal 2, the reconsideration reviewers would be assigned to the specialized unit within the DRS and the clerical staff could be either assigned to the specialized unit or absorbed into the existing DRS support staff. Under Proposal 3, both the reconsideration reviewers and clerical staff would be assigned to the restored Reconsideration Section.

When a proposal is silent as to a particular matter, a Union statement clarifying the matter will be adopted so long as the statement otherwise comports with the proposal's wording. National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). The Union's explanation that the three proposals encompass the assignment of the reconsideration reviewers and clerical staff is not inconsistent with the wording of the proposals. Accordingly, we adopt the Union's explanation of the proposals, and conclude that each of the proposals would establish an organizational subdivision and prescribe staffing for that subdivision.

Based on the foregoing, it is apparent that these proposals concern matters that impose two distinguishable requirements. First, they each establish an organizational subdivision. Second, they each prescribe staffing for the proposed subdivision.

When presented with a proposal that imposes two or more requirements, the Authority has in some cases severed the proposal and ruled on the negotiability of its separate components. See, e.g., National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 396 (1993) (Proposal 6 severed based on segments of text), petition granted, enforcement denied as to other matters, 25 F.3d 229 (4th Cir. 1994); National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 49 FLRA 151 (1994) (severance based on application).

In this case, however, severance was not requested and, in any event, is not practicable. As written and explained by the Union, each of the proposals in this case does two things: it prescribes (1) an organizational subdivision and (2) its staffing. However, the staffing requirement of each proposal is dependent for its viability on the establishment of the organizational subdivision to which the prescribed staffing is assigned. Moreover, the Union has provided no indication that it has any interest in a proposal that excludes one of these requirements. Therefore, severing the organizational and staffing requirements of these proposals from each other and ruling on the negotiability of each requirement, standing alone, would entail substantive revision of the proposals, which is not the Authority's role. See 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, 1162 (1992).

2. Relationship of VAMC, Lexington to the Proposals in This Case

In VAMC, Lexington, the Authority set forth the approach that it would apply in negotiability disputes where parties disagree whether a proposal comes within the terms of section 7106(a) or 7106(b)(1). The Authority concluded that section 7106(b)(1) is an exception to section 7106(a). Consequently, where a proposal comes within the terms of both sections, it is subject to negotiation at the election of the agency. Under the approach articulated in VAMC, Lexington, the Authority first examines a contention that a proposal is electively bargainable under section 7106(b)(1). If the proposal concerns subjects set forth in section 7106(b)(1), the Authority does not address contentions that the proposal also affects the exercise of management's authorities under section 7106(a). If, however, a proposal is not encompassed by section 7106(b)(1), the Authority proceeds to analyze it under the appropriate subsection of section 7106(a). 

As was the case in VAMC, Lexington, the parties here disagree whether these proposals come within the terms of section 7106(a) or 7106(b)(1); however, these proposals are unlike those addressed in VAMC, Lexington. Although the proposals addressed in VAMC, Lexington were claimed to have ramifications with respect to more than one management right, they imposed a single requirement.(4) In this case, by contrast, the proposals, as written and explained by the Union, impose two inseparable requirements: each proposal calls for the Agency to create an organizational subdivision; each also dictates the staffing assigned to the subdivision.

Given the fact that each of these proposals has two distinguishable but inseparable requirements, the question becomes which of the two requirements the Authority should examine to determine whether the proposal addresses subjects set forth in section 7106(b)(1). In view of the analysis articulated in VAMC, Lexington, under which no inquiry is made as to section 7106(a) management rights once a proposal is determined to concern a section 7106(b)(1) subject, this question may be pivotal to disposition of the negotiability issue. In the interests of avoiding arbitrary decision making,(5) and giving guidance to the parties, we describe here how we will determine the negotiability of a proposal that establishes two or more requirements that are not severable.

In considering this case, we recognize that mechanical application of the principles articulated in VAMC, Lexington could lead to a determination that any proposal establishing a requirement encompassed by section 7106(b)(1) would be electively negotiable under that section, regardless of how central, or tangential, that particular requirement is to the intended operation of the proposal as a whole. This outcome would not only distort the VAMC, Lexington framework, but would also disregard the balance Congress intended to strike between preserving genuine managerial prerogatives and "allow[ing] the flexibility that is the hallmark of a successful labor-management program." 124 Cong. Rec. 29199 reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979), at 956 (Legislative History); see also H.R. Conf. Rep. No. 1717, 95th Cong., 2d Sess. 153-54 (1978), reprinted in Legislative History at 821-22 (Conference Committee discussion of section 7106(a) and (b)(1)).

Consonant with this congressional intent, we approach the determination of the negotiability of proposals that intermingle two or more inseparable requirements with the understanding that we must preserve managerial prerogatives that are recognized in section 7106(a). At the same time, we continue to adhere to the principle set forth in VAMC, Lexington that section 7106(b)(1) is an exception to section 7106(a). Adopting an approach that permits section 7106(a) rights to prevail in all instances over section 7106(b)(1) when two or more requirements are inseparable could substantially deprive VAMC, Lexington of meaning as well as deprive the Statute of its intended flexibility. Thus, we must reconcile the statutory purposes of section 7106(a) and 7106(b)(1), and we must do so in a manner that provides practitioners with an approach that is understandable and workable.

Where, as here, the parties disagree whether the negotiability of a proposal that has distinguishable requirements is governed by section 7106(a) or section 7106(b)(1), we will identify the requirements of the proposal. Consistent with Authority precedent, we will do so by considering the wording of the proposal as well as its meaning and the context in which it would apply. If severance is possible and requested, we will do so and analyze each requirement separately. If severance is not possible, we will then determine which requirement dominates the operation of the proposal. For purposes of determining the negotiability of a proposal, we will rely on the requirement that has been identified as dominant.

To determine which of multiple, inseparable requirements is dominant, we will examine the interrelationship among the different requirements. We will identify as dominant that requirement on which the other requirements addressed by the proposal depend for their viability.

Having identified the proposal's dominant requirement, we will then analyze the proposal, as construed, under section 7106(b)(1). If, based on its dominant requirement, the proposal is encompassed by section 7106(b)(1), the proposal will be electively negotiable under that section, without regard to whether one or more of the other requirements is encompassed only by section 7106(a).(6) If, on the other hand, based on its dominant requirement, the proposal does not concern section 7106(b)(1) but, on further analysis, involves a management right set forth in section 7106(a), the proposal will not be electively negotiable under that section, even though it may involve other requirements that are encompassed by section 7106(b)(1).(7)

3. The Dominant Requirement of All Three Proposals in This Case Is the Establishment of an Organizational Subdivision

As discussed above, these proposals impose two inseparable requirements on the Agency. One of these requirements, the prescription of staffing, is dependent for its viability on the other, the establishment of an organizational subdivision. Thus, the dominant requirement of each of the proposals is the establishment of an organizational subdivision.

4. Establishment of an Organizational Subdivision Is Not Encompassed by Section 7106(b)(1)

In VAMC, Lexington, the Authority stated that in determining whether a proposal concerns section 7106(b)(1), it would analyze whether the proposal falls within one of the two categories set forth in that section. As described in VAMC, Lexington, the first category, which is relevant to this case, "relates to (i) the numbers, types, and grades; (ii) of employees or positions; (iii) assigned to any organizational subdivision, work project or tour of duty." 51 FLRA at 394 (footnote omitted). To fall within the first category, a proposal must satisfy all three of these elements.

We have found that the establishment of an organizational subdivision is the dominant requirement of the proposals in this case. Although the proposals package the organizational subdivision with its prescribed staffing, the establishment of an organizational subdivision nevertheless entails an agency action that is distinct from the assignment of numbers, types and grades of employees or positions to that subdivision. That is, the establishment of a new organizational entity does not equate to the staffing of that entity. Thus, the dominant requirement of each of the proposals does not concern the numbers, types, and grades of employees or positions assigned to the organizational subdivision established and it follows that these proposals are not encompassed by section 7106(b)(1).

5. Establishment of an Organizational Subdivision Affects Management's Right To Determine the Organization of the Agency

In keeping with the principles articulated in VAMC, Lexington, we turn to the question of whether, as claimed by the Agency, these proposals affect management's right to determine organization under section 7106(a)(1). The Authority has construed this right as encompassing the determination of the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. E.g., American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1604-05 (1993). That is, this right encompasses the determination of how an agency will structure itself to accomplish its mission and functions. Id. at 1605. This determination includes such matters as the geographical locations in which an agency will provide services or otherwise conduct its operations; how various responsibilities will be distributed among the agency's organizational subdivisions; how an agency's organizational grade-level structure will be designed; and how the agency will be divided into organizational entities such as sections. Id.

As discussed above, the dominant requirement of each of the three proposals is the establishment of an organizational subdivision. By establishing an organizational subdivision, the proposals dictate how the Agency will divide itself into organizational entities and, by extension, how the agency will be structured to accomplish its mission and functions. Therefore, based on their dominant requirement, each of the three proposals affects management's right to determine the organization of the Agency under section 7106(a)(1). As the Union does not assert that this proposal is intended as an appropriate arrangement for adversely affected employees, we find that there is no basis for considering whether the proposal is within the duty to bargain under section 7106(b)(3).

Based on the foregoing, we conclude that these proposals are not within the duty to bargain.(8)

VI. Order

The Union's petition for review is dismissed.

Member Armendariz, concurring:

I concur in my colleagues' conclusion that the proposals in this case are outside the duty to bargain under section 7106(a)(1) of the Statute. I write separately because I would apply a different analysis to reach that result. Specifically, I do not agree that Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) (Montana ACT) and National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington) require such a significant deviation from the Authority's usual analysis of proposals in which more than one "matter," within the meaning of section 7117, is in dispute. Rather, I believe that the analytical framework applied by my colleagues is a misinterpretation of Montana ACT and VAMC, Lexington and a misapplication of the section 7106(b)(1) exception to section 7106(a) management rights.

Typically, where the Authority has been presented with a proposal involving more than one matter, and those matters are alleged to be outside the duty to bargain on different grounds, if the Authority has found that one matter is nonnegotiable, the Authority has concluded that the proposal is outside the duty to bargain without separately addressing the other matter or matters.(1) However, if the union has requested that those other matters be severed from the rest of the proposal, and if they are severable and are separately addressed by the parties, the Authority has made separate negotiability determinations as to those other matters.(2) Where the Authority has found that those other matters are not severable, the Authority has not made separate negotiability determinations as to those other matters.(3)

More particularly, where a proposal concerned both a section 7106(a) matter and a section 7106(b)(1) matter, Authority practice normally would have been to consider the section 7106(a) matter first.(4) If the Authority had determined that the section 7106(a) matter was nonnegotiable, and the union did not request severance or it was determined that the section 7106(b)(1) matter was not severable, the Authority would have found that the proposal was outside the duty to bargain and would not have considered the section 7106(b)(1) matter.(5)

However, after the court's decision in Montana ACT and the Authority's decision in VAMC, Lexington, the Authority's usual approach was modified. In Montana ACT the disputed provision involved a single matter: uniforms. Similarly, in VAMC, Lexington, the proposals concerned only one matter: staffing. The section 7106(b)(1) exception to section 7106(a), as explained and clarified in Montana ACT and VAMC, Lexington, was applied in those cases to find that the particular matter at issue was negotiable at the election of the agency, notwithstanding the fact that the same matter could also involve the exercise of a section 7106(a) right. Applying Montana ACT, the Authority held in VAMC, Lexington that, where one matter is claimed to be both a section 7106(a) matter and a section 7106(b)(1) matter, the Authority will first determine whether it is a section 7106(b)(1) matter. If it is concluded that the matter covered by the proposal is a section 7106(b)(1) matter, the proposal will be found to be negotiable at the election of the agency, notwithstanding that it may also be a section 7106(a) matter.(6)

The proposals in this case involve two matters: a proposed organizational structure and a proposed staffing pattern for that structure. The Union argues that the proposals concern a section 7106(b)(1) matter, and the Agency argues that they concern a section 7106(a)(1) matter. Consistent with Montana ACT and VAMC, Lexington, I would first resolve whether the Union is correct.(7) If the proposed organizational structure is not a section 7106(b)(1) matter, but a section 7106(a) matter, I would examine whether it is outside the duty to bargain under section 7106(a)(1). Further, if I conclude that the proposed organizational structure portion of the proposal directly interferes with management's right to determine its organization under section 7106(a)(1), I would then examine whether the separate staffing pattern matter is severable. If it is not, I would conclude that the proposal is outside the duty to bargain under section 7106(a)(1) and I would not further address the separate section 7106(b)(1) matter. If it is, I would make a separate negotiability determination as to that portion of the proposal.

In the same situation, as I understand it, my colleagues would consider which of the matters involved in the proposal constitutes the dominant requirement of the proposal.(8) Under that analysis, if it is determined that the section 7106(b)(1) matter constitutes the dominant requirement, and the matters are not severable, the proposal will be found to be negotiable at the election of the agency, notwithstanding the fact that a section 7106(a) matter is also contained in the proposal. My colleagues base their framework on their understanding of the holdings in Montana ACT and VAMC, Lexington. Because I do not share their interpretation, I cannot agree with their proposed analytical framework.(9)

In Montana ACT, the agency head disapproved a provision of a bargaining agreement allowing National Guard civilian technicians to wear standard civilian work clothes, instead of military uniforms, on the ground that the provision violated management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Acknowledging that the determination of a dress code for National Guard civilian technicians constitutes a decision as to the methods and means of performing work under section 7106(b)(1), the Authority nevertheless determined that the provision also directly interfered with management's internal security right and concluded that the agency head properly disapproved the agreement provision.

On appeal, the court held that "[section] 7106(b) is indisputably an exception to [section] 7106(a)." Id. at 1155 (emphasis in original). Consequently, the court concluded that "[w]hile a matter pertaining to subsection (b)(1) is ordinarily not within management's duty to bargain, it is not thrust beyond the scope of lawful bargaining simply because it also pertains to management powers enumerated in subsection (a)." Id. (emphasis in original). Finding that "the matter" involved in the case "falls under both subsections (a) and (b)(1) of [section] 7106[,]" the court held that it "is subject to negotiation at the election of the agency." Id. (emphasis in original). Finally, because local agency negotiators had reached agreement on a dress code provision, a matter electively negotiable under section 7106(b)(1), the court held that the agency head could not properly disapprove that provision of the agreement and reversed the Authority.

In VAMC, Lexington, the Authority agreed with the court's analysis of the relationship between section 7106(a) and section 7106(b)(1). Based on that analysis, the Authority developed a framework for determining the negotiability of proposals where the parties dispute which section governs the negotiability of the matter or matters involved in the proposal. Specifically,

the Authority will determine initially whether the proposal concerns matters within the subjects set forth in section 7106(b)(1). If it does, we will not address contentions that those matters also affect the exercise of management's authorities under section 7106(a). Conversely, if we conclude that a proposal does not concern matters within the subjects set forth in section 7106(b)(1), we will then proceed to analyze it under the appropriate subsection of section 7106(a).

Id. at 393 (footnote omitted).

I do not believe that the "dominant requirement" analysis is consistent with Montana ACT or VAMC, Lexington. The section 7106(b)(1) exception to section 7106(a) was applied in those cases to find that the particular matter at issue was negotiable at the election of the agency, notwithstanding the fact that the same matter could also involve the exercise of a section 7106(a) right.

The analysis proposed by my colleagues, however, extends to proposals containing more than one matter a framework that was intended to apply only to disputes over a single matter. In so doing, my colleagues misapply the section 7106(b)(1) exception to the section 7106(a) rights. Under the "dominant requirement" analysis, where a section 7106(b)(1) matter constitutes the dominant requirement of a proposal, that matter would control the disposition of an entirely different section 7106(a) matter. Applying that framework in this case, as I understand it, if the proposed staffing of the Reconsideration Section constituted the "dominant requirement" of the proposal, my colleagues would find the proposal to be negotiable at the election of the Agency, notwithstanding the fact that the proposal prescribed a specific organizational structure under section 7106(a)(1). In my view, under that analysis, the section 7106(b)(1) exception would severely restrict the intended reach of section 7106(a).(10)

Wholly apart from whether the "dominant requirement" test can be consistently applied, therefore, I reject it because it is inconsistent with the holdings of both Montana ACT and VAMC, Lexington and because it misconstrues the scope of the section 7106(b)(1) exception to the section 7106(a) rights. I would apply Montana ACT and VAMC, Lexington only in those circumstances where the same matter is claimed to be both a section 7106(a) and a section 7106(b)(1) matter. Otherwise, I would follow previous Authority practice in analyzing a proposal.

Consistent with that practice, I conclude that the three proposals at issue in this case are outside the duty to bargain under section 7106(a)(1) of the Statute because they require the establishment of an organizational subdivision. Specifically, I agree with my colleagues that, by their terms, the proposals prescribe the manner in which the Agency will be organized in order to accomplish the work previously performed by the Reconsideration Section. I also agree that the proposals prescribe the staffing of the proposed organizational elements and that the staffing aspects of the proposals are incapable of being severed from those organizational elements. Finally, I agree that the staffing aspects of the proposals are not capable of being severed from the organizational structure elements of the proposals.

The Union claims that the organizational structure established by the proposals constitutes a section 7106(b)(1) matter and the Agency claims that it is a section 7106(a) matter. Consequently, under the framework I outlined above, I begin with the proposed organizational structure and consider if that matter constitutes a matter that is negotiable at the election of the Agency under section 7106(b)(1). I agree with my colleagues that a management decision under section 7106(a)(1) to establish an organizational element is a matter that is wholly distinct from a management determination as to the numbers, types, and grades of employees or positions assigned to an organizational subdivision within the meaning of section 7106(b)(1). I conclude, therefore, that organizational structure and staffing pattern are not the same matter and, thus, that the proposals are not negotiable at the election of the Agency under Montana ACT and VAMC, Lexington.

Moreover, I agree with my colleagues that because the proposals require the establishment of an organizational element within the Agency, they interfere with management's right to determine its organization. Consequently, in the absence of an argument that the proposals are within the duty to bargain under section 7106(b)(3), I agree that the proposals are outside the duty to bargain because they impermissibly affect the exercise of management's right under section 7106(a)(1) of the Statute.




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


 Authority's Footnotes Follow:

1. After the Union filed the appeal in this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.

2. Member Armendariz' concurring opinion appears at the end of this decision.

3. The Authority directed the parties to address the applicability of National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), to the proposals in this case. In response to the Authority's directive, the Agency filed a supplemental brief; the Union did not.

4. For example, Proposal 2 required the agency to move an FTEE (Full Time Employee Equivalent) to a specified organizational subdivision, which, in contrast to the circumstances in this case, already existed and which the agency did not propose to alter. Proposal 3 required the agency to extend the hours of a part-time employee.

5. See 5 U.S.C. § 706 (providing scope of judicial review of agency action).

6. In adopting this approach, we emphasize that a finding that a proposal is encompassed by section 7106(b)(1) means only that an agency may elect under the Statute to bargain over the proposal, and not that it must bargain over the proposal. Nothing in the Statute forecloses an agency from considering the effect of the proposal on section 7106(a) rights in determining whether it will elect to bargain.

7. We are neither misapplying the section 7106(b)(1) exception nor permitting it to severely restrict section 7106(a), as our concurring colleague suggests. By rejecting an application of the principles set forth in VAMC, Lexington that would result in placing an entire proposal with multiple requirements within the exception merely because one of its requirements -- however minor -- concerns section 7106(b)(1), we have in fact limited the exception's effect on section 7106(a). We emphasize that the approach set forth in this decision is limited to proposals composed of multiple requirements that are inseparably bound together. Also, we view this approach, rather than that of our concurring colleague, as adhering to the fundamental principle expressed in VAMC, Lexington and Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994), that section 7106(b)(1) is indisputably an exception to section 7106(a).

In addition, in contrast to our concurring colleague's suggestion, what we do here is clearly distinguishable from the analysis rejected by the Authority in American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995), petition for review filed, No. 95-1593 (D.C. Cir. Dec. 1, 1995) (OPM). In OPM, the Authority rejected an analysis that relied on "what the union seeks to accomplish rather than what the proposal would, in fact, accomplish, when the two are inconsistent." Id. at 510. In this case, we determine first what the proposal would, in fact, accomplish; when it would, in fact, accomplish more than one thing, we determine which of those is dominant.

8. We would reach the same result even if the Agency had not implemented the decentralization. Even had such implementation not yet occurred, the determination of how the Agency would divide itself into organizational entities would dominate any other requirement of the three proposals. Thus, when the facts and arguments in this case are viewed in a pre-implementation context, Proposals 1 and 2 prescribe the establishment of a new organizational subdivision along with its staffing and Proposal 3 prescribes the retention of an existing organizational subdivision along with staffing. However, we caution that we will not construe every proposal that is concerned with prescribing numbers, types or grades of employees or positions as automatically prescribing the retention or establishment of the subdivision to which they are assigned. See, e.g., VAMC, Lexington, 51 FLRA at 394-95 (the parties did not assert that Proposal 2, which required moving a position to an organizational subdivision, prescribed the retention or establishment of the subdivision and the Authority did not construe it as doing so). Rather, we will look to the proposal as written and the parties' explanations of the proposal to determine whether the proposal itself dictates such action. Moreover, the fact that a proposal has an organizational component does not mean that component always will be dominant. Thus, it is important that the parties provide us with a sufficient record on which to determine what the requirements of a proposal are and how those requirements interrelate.


Concurring Footnotes Follow:

1. E.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 48 FLRA 129, 162 n.7 (1993) (Patent and Trademark Office) (Member Armendariz dissenting as to other matters), petition for review denied sub nom. Patent Office Professional Association v. FLRA, 47 F.3d 1217 (D.C. Cir. 1995); U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 47 FLRA 512, 512-13 n.2, 520-21 (1993) (Defense Contract Audit Agency); National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 704 (1992) (Customs Service, Washington). See also Overseas Education Association v. FLRA, 827 F.2d 814, 818 (D.C. Cir. 1987); American Federation of Government Employees, Local 2077 and U.S. Department of Defense, Michigan Air National Guard, 127th Tactical Fighter Wing, 43 FLRA 344, 367 (1991).

2. E.g., American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto, California, 49 FLRA 302, 305, 310-18 (1994); American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747, 750 n.1 (1990).

3. E.g., Patent and Trademark Office; Defense Contract Audit Agency; Customs Service, Washington.

4. E.g., American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1606, 1622-23 (1993) (South Carolina District).

5. E.g., South Carolina District; National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 957 (1992); National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 765-67 (1991); American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Baltimore, Maryland, 25 FLRA 16, 24-25 (1987).

6. This analytical framework would also apply to negotiability determinations regarding provisions of a collective bargaining agreement disapproved by an agency head pursuant to section 7114(c) of the Statute.

7. Where a proposal involves multiple matters, each of which is alleged to be both a section 7106(a) matter and a section 7106(b)(1) matter, I would consider each matter under section 7106(b)(1) first, consistent with VAMC, Lexington. However, once I determined that one of those matters was a section 7106(a) matter, and not within section 7106(b)(1), I would consider whether, in that respect, the proposal directly interferes with the section 7106(a) right involved. I would not, in any circumstance, inquire, as would my colleagues, which of the matters contained in the proposal constitutes the dominant requirement of the proposal. In my view, a proposal containing section 7106(a) matters that are not also section 7106(b)(1) matters will always be outside the duty to bargain if it impermissibly affects the section 7106(a) rights involved--and is not a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3)--regardless of whether those section 7106(a) matters constitute the "dominant requirement" of the proposal.

8. I do not understand my colleagues to be claiming that the other requirements of the proposal constitute "incidental effects" of the dominant requirement, as opposed to separate, albeit less important, requirements of the proposal. Consequently, I do