52:0813(79)NG - - International Federation of Professional and Technical Engineers ( IFPTE ), Local 49 and Army Corps of Engineers, South Pacific Division, San Francisco, CA - - 1996 FLRAdec NG - - v52 p813



[ v52 p813 ]
52:0813(79)NG
The decision of the Authority follows:


52 FLRA No. 79

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

LOCAL 49

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY CORPS OF ENGINEERS

SOUTH PACIFIC DIVISION

SAN FRANCISCO, CALIFORNIA

(Agency)

0-NG-2246

0-NG-2247

0-NG-2248

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

I. Statement of the Case

These cases are before the Authority on negotiability appeals filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeals concern the negotiability of three proposals addressing the reorganization and staffing of several subdivisions of the Agency. In addition to filing statements of position and reply briefs in each case, the parties filed, at the Authority's request, supplemental briefs addressing the applicability to these cases 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) and American Federation of Government Employees and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995) (OPM), petition for review filed sub nom. American Federation of Government Employees, Local 32 v. FLRA, No. 95-1593 (D.C. Cir. Dec. 1, 1995).

For the reasons that follow, we find that the proposals are outside the duty to bargain because they impermissibly affect the exercise of management's right to determine its organization under section 7106(a)(1) of the Statute.

II. Preliminary Matter

Where cases "involve the same parties, arise out of the same negotiations, and present similar negotiability issues," the Authority has treated the cases together. American Federation of Government Employees, Local 3884 and U.S. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA 199 (1990), aff'd in part and rev'd in part as to other matters sub nom. American Federation of Government Employees, Local 3884 v. FLRA, 930 F.2d 1315 (8th Cir. 1991). The three proposals in these cases address similar matters arising from the same Agency reorganization. Moreover, the Agency asserts that the Authority "should consider all three cases jointly when ruling on each of these cases." Statement of Position (in Case No. 0-NG-2248) at 2. Because the three proposals are interrelated and similar arguments are advanced by the parties with respect to each proposal, we have consolidated the cases for consideration.

III. Background

As the result of an audit of the Agency's organizational structure, management proposed a reorganization of several of its subdivisions.(2) As relevant here, the Union responded with the three proposals addressed in this decision. These proposals include several organizational charts prescribing explicit organizational configurations, including, in some instances, the organizational titles of the personnel who will staff the subdivisions and tables indicating the numbers of employees to be allocated to the several organizational subdivisions.(3)

IV. The Proposals (4)

Proposal 1 (Case No. 0-NG-2247)

Employer shall reorganize several existing organizational subdivisions in accordance with the structure shown on Enclosure 1.

Proposal 2 (Case No. 0-NG-2248)

The number of employee/positions assigned to the organizational subdivisions shown on Enclosure 1 shall be 101. This corresponds to the figures shown in Enclosure 2.

Proposal 3 (Case No. 0-NG-2246)

The number of supervisory positions assigned to the organizational subdivisions shown on Enclosure 1 shall be thirteen. This corresponds to the figures shown in Enclosure 2.

V. Positions of the Parties

A. Agency

The Agency contends that all three proposals are outside the duty to bargain because they affect the exercise of various management rights under section 7106(a), including the rights to determine its organization and to determine the personnel by which its operations will be conducted. The Agency also contends that all the proposals pertain to the conditions of employment of supervisors and employees in other bargaining units. Therefore, the Agency argues, the proposals are outside the duty to bargain under OPM.

B. Union

The Union states that Proposal 1 "restructure[s] the existing business functions of [the Agency] . . . into four separate [subdivisions]: (1) Management Group, (2) Technical Group, (3) Operations Group and (4) Real Estate and Regulatory Group . . . ." Petition for Review (in Case No. 0-NG-2247) at 1. According to the Union, Proposal 1 addresses the methods and means of doing work, as well as "the number of supervisors" in the organizational subdivisions. Reply Brief (in Case No. 0-NG-2247) at 7 (emphasis in original). The Union also asserts that certain specific positions identified for inclusion in the organizational subdivisions contained in Enclosure 1 "are existing positions and/or functions currently found within [the Agency]." Id. The Union argues that OPM, which addresses bargaining over conditions of employment of supervisory employees, does not apply to Proposal 1 because the proposal in OPM concerned "mandatory subjects of bargaining," while Proposal 1 concerns "permissive subjects." Union's Supplemental Brief (in Case No. 0-NG-2247) at 2.

According to the Union, Proposal 2 is intended "to reduce the number of employees/positions required to perform the mission of the subunits" established in Proposal 1 "from the current 163 positions to 101 positions." Petition for Review (in Case No. 0-NG-2248) at 1. As relevant here, the Union asserts that, in addressing the number of positions assigned to subdivisions, the proposal is similar to others found by the Authority to fall within the scope of section 7106(b)(1).

The Union claims that the objective of Proposal 3 is "to reduce the number of supervisory positions required to perform the mission of the subunits shown on page 2 of Enclosure 1 from the current 33 positions to 13 positions." Petition for Review (in Case No. 0-NG-2246) at 1. The Union asserts that Proposal 3 concerns "the number and types of positions (i.e., number of supervisors overseeing bargaining unit members) and the means and methods of doing work (i.e., how bargaining unit members would receive and obtain their orders and report their actions)." Union's Supplemental Brief (in Case No. 0-NG-2246) at 4 (emphases in original).

With regard to all three disputed proposals, the Union relies on VAMC, Lexington and asserts that, as the proposals are encompassed by section 7106(b)(1), they are negotiable despite any interference with management's rights under section 7106(a).

VI. Analysis and Conclusions

A. Meaning of the Proposals

There is no dispute that Proposal 1 requires the Agency to establish subdivisions of its organization in accordance with the "structure" shown in the organizational charts in Enclosure 1, which is referenced in the proposal and contained in the petition for review. There is also no dispute that the Union's proposed "restructuring" differs from the structure under the Agency's planned reorganization. Petition for Review (in Case No. 0-NG-2247) at 1. In this regard, Enclosure 1 encompasses several charts that both identify organizational subdivisions and the relationships between them, and specify certain staffing levels to be assigned to the subdivisions. As an example of the latter, on page 5 of Enclosure 1, the organizational chart includes the specific number of full time positions for consultants assigned to the "Geotech" and "cost and Economics" teams. However, as discussed below, it is unclear what aspects of the enclosure are intended to be encompassed by Proposal 1's reference to "structure."

On one hand, the Union makes several statements supporting a conclusion that the proposal requires only the creation of organizational subdivisions. For example, the Union asserts that Proposal 1 involves "only the conceptual creation of an organizational structure." Union's Supplemental Brief (in Case No. 0-NG-2247) at 3. The Union also states that "the organizational structure is the matter of contention." Reply Brief (in Case No. 0-NG-2247) at 1-2. Other Union statements support a conclusion that the proposal requires both the creation of an organizational structure and, at least in some respects, the staffing of that structure. Specifically, the Union contends that Proposal 1 addresses "the number of supervisors" and acknowledges that it specifies certain types of positions that would be assigned to the reorganized subdivisions. Reply Brief (in Case No. 0-NG-2247) at 7 (emphasis in original). The Union also states that the positions encompassed by the proposal are "existing positions." Id.

We find that the proposal's plain wording and the Union's statements concerning the proposal's effect support two different constructions of Proposal 1. Under the first construction, Proposal 1 requires only the creation of organizational subdivisions. Under the second, the proposal requires both the establishment of subdivisions and, at least to some extent, the staffing of those new subdivisions. The Authority has dismissed other petitions for review where the meaning of a proposal is unclear. E.g., National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 770 (1992). We do not dismiss the petition for review as to Proposal 1 based on lack of clarity because we conclude, for the reasons that follow, that Proposal 1 is outside the duty to bargain under either construction. See International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, Pacific, 47 FLRA 1086, 1088 (1993).

As for Proposal 2, there is no dispute that it "reduce[s] the number of employees/positions" assigned to the organizational subdivisions created in Proposal 1 "from the current 163 positions to 101 positions." Petition for Review (in Case No. 0-NG-2248) at 1. There also is no dispute that Proposal 3 "reduce[s] the number of supervisory positions" assigned to the subdivisions created in Proposal 1 "from the current 33 positions to 13 positions." Petition for Review (in Case No. 0-NG-2246) at 1.

B. Construed to Create Organizational Subdivisions Only, Proposal 1 Is Outside the Duty to Bargain

The parties disagree as to whether Proposal 1 is negotiable at the election of the Agency under section 7106(b)(1) or whether it is outside the duty to bargain because it interferes with management's rights in section 7106(a). Therefore, in accordance with the principles stated in VAMC, Lexington, it is necessary to begin by examining the Union's contention that the proposal is within the duty to bargain under section 7106(b)(1). VAMC, Lexington, 51 FLRA at 393.

Construed as only establishing organizational subdivisions, no basis is argued or apparent on which to conclude that the proposal would affect the numbers, types and grades of employees or positions assigned to any organizational subdivision. In this regard, assuming the proposal was otherwise negotiable, the Agency could comply with its terms by assigning as many or as few positions or employees of any type as it chose to each subdivision. See American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA No. 78, slip op, at 9 (SSA, Mid-America) (Member Armendariz, concurring).

We also find no support for concluding that the establishment of organizational subdivisions constitutes a methods or means of performing work. The Authority has construed "method" to refer to "the way in which an agency performs its work." American Federation of Government Employees, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 343 (1993) (citation omitted). The term "means" refers to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id. The organizational structure encompassed by Proposal 1, standing alone, does not constitute or prescribe a methodology--or way--for the Agency to perform its work. Although Proposal 1 establishes the organizational context in which work is performed--lines of supervision and responsibility--it does not determine how the work will be performed. Similarly, the organizational structure, standing alone, does not constitute or prescribe the tools, devices, measures, plans, or policies that will be utilized in performing the Agency's work.

Based on the foregoing, we conclude that Proposal 1 does not concern a matter negotiable at the Agency's election under section 7106(b)(1) of the Statute.

Following the principles in VAMC, Lexington, the next step is to examine the Agency's assertion that Proposal 1 affects management's right to determine its organization under section 7106(a)(1). That right concerns the Agency's authority to determine its administrative and functional structure, including the relationship of personnel through lines of control 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, the right includes the authority to determine how an agency will structure itself to accomplish its mission and functions, how responsibilities will be distributed among its organizational subdivisions, and how the agency will be divided into organizational units such as sections. Id. at 1605.

By establishing organizational subdivisions, Proposal 1 prescribes how the Agency will divide itself into organizational units and, concomitantly, how the Agency will be structured to accomplish its mission and functions. Therefore, the proposal impermissibly affects the exercise of management's right to determine its organization under section 7106(a)(1). Consequently, as the Union does not assert that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3), Proposal 1, construed as establishing organizational subdivisions, is outside the duty to bargain.

C. Construed to Create Organizational Subdivisions and Impose Staffing Requirements, Proposal 1 Is Outside the Duty to Bargain

Construed as both creating organizational subdivisions and establishing staffing levels for those subdivisions, Proposal 1 establishes two requirements: a specific organizational structure and the particular employees and/or positions that will be assigned to that structure. The Union did not seek severance of the two requirements, and we conclude that they are not severable. That is, under this construction, Proposal 1 presents an integrally related package that prescribes both an organizational structure and, in part, the staff to be assigned to that structure, with the proposed staffing relying for its viability on the proposed organizational subdivisions to which the staff would be assigned. Analyzing the proposal's distinct requirements to determine whether either is separately within the duty to bargain would result in substantively revising the proposal, which is not the Authority's function. 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) (decision and order on remand).

In SSA, Mid-America, the Authority recently set forth the framework for determining whether proposals having two or more inseparable requirements are within the duty to bargain under the Statute when the parties make conflicting claims as to whether the proposal is outside the duty to bargain under section 7106(a) of the Statute or is bargainable at the agency's election under section 7106(b)(1). Under the framework explained in SSA, Mid-America, and for the reasons fully set forth therein, when analyzing such a proposal, it is necessary to determine which requirement is dominant. Id., slip op. at 7.

In this case, the parties make conflicting claims as to the negotiability of Proposal 1 under section 7106(a) and 7106(b)(1) of the Statute, and the proposal establishes two inseparable requirements. Accordingly, the framework set forth in SSA, Mid-America applies. The prescription of staffing is dependent for its viability on the establishment of the organizational subdivisions to which the positions will be assigned. Therefore, consistent with SSA, Mid-America, the dominant requirement of the proposal is the establishment of specific organizational subdivisions.

Next, applying the framework set forth in SSA, Mid-America, it is necessary to ascertain whether Proposal l, consistent with its dominant requirement, is encompassed by section 7106(b)(1) of the Statute. For the reasons stated in section VI.B., above, the creation of organizational subdivisions--the dominant requirement of Proposal 1--does not affect the numbers, types, and grades of employees or positions assigned to any organizational subdivision and does not constitute a method or means of performing work. Accordingly, the proposal does not concern a matter negotiable at the Agency's election under section 7106(b)(1). Also for the reasons stated in section VI.B., above, the creation of organizational subdivisions impermissibly affects the exercise of the Agency's right to determine its organization under section 7106(a)(1) of the Statute.

Consistent with the foregoing, we conclude that, based on its dominant requirement, Proposal 1 impermissibly affects the exercise of the Agency's right to determine its organization. SSA, Mid-America, slip op. at 10. As there is no assertion by the Union that the proposal constitutes an appropriate arrangement under section 7106(b)(3), Proposal 1 is outside the duty to bargain.

D. Proposals 2 and 3 Are Outside the Duty to Bargain Because They Are Inextricably Intertwined with Proposal 1

Proposals 2 and 3 state requirements that elaborate on the organizational structure established by Proposal 1. Specifically, the numbers of positions proposed in Proposals 2 and 3 assume the existence of the subdivisions that would be established by Proposal 1. The negotiability of Proposals 2 and 3, therefore, is inextricably intertwined with the negotiability of Proposal 1. Because we find that Proposal 1 is outside the duty to bargain, we also find that Proposals 2 and 3 are outside the duty to bargain.(5) See American Federation of Government Employees, Local 3369 and U.S. Department of Health and Human Services, Social Security Administration, Patchogue, New York, 49 FLRA 793, 798 (1994).

VII. Order

The Union's petition for review is dismissed.

Member Armendariz, concurring:

I agree with my colleagues that, based on its wording and on the Union's statements as to its effect, Proposal 1 is subject to two different interpretations. For the reasons stated in their opinion, I concur in my colleagues' conclusion that, interpreted as requiring only the establishment of organizational subdivisions, Proposal 1 is outside the duty to bargain because it impermissibly affects management's right to determine its organization under section 7106(a)(1) of the Statute.

I also agree that, interpreted as both creating organizational subdivisions and, to some extent, staffing levels for those subdivisions, the two aspects of Proposal 1 are not severable. However, for reasons that are different than my colleagues, I would agree that, interpreted in this manner, Proposal 1 is outside the duty to bargain under section