53:0427(49)NG - - NFFE Local 2143 and Interior, Office of Surface Mining, Reclamation and Enforcement, Albuqueque, NM - - 1997 FLRAdec NG - - v53 p427



[ v53 p427 ]
53:0427(49)NG
The decision of the Authority follows:


53 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2148

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

OFFICE OF SURFACE MINING

RECLAMATION AND ENFORCEMENT

ALBUQUERQUE, NEW MEXICO

(Agency)

0-NG-2293

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 24, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, 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 4 proposals.(1)

The Agency filed a statement of position; the Union filed a response to the statement of position; and both parties filed supplemental submissions at the direction of the Authority.

For the reasons more fully explained herein, we find as follows:

Proposal 1, which seeks the addition of two full-time equivalent positions (FTEs) to the Albuquerque Field Office (AFO), is negotiable at the election of the Agency under section 7106(b)(1) because it concerns the numbers of employees or positions assigned to an organizational subdivision.

Proposal 2, which seeks the filling of a vacancy within AFO, is negotiable at the election of the Agency under section 7106(b)(1) because it concerns the numbers of employees assigned to an organizational subdivision.

Proposal 3, which seeks the addition of a position to the AFO, is negotiable at the election of the Agency under section 7106(b)(1) because it concerns the numbers of employees assigned to an organizational subdivision.

We dismiss the petition insofar as it concerns Proposals 1 through 3 pursuant to section 2424.10 of the Authority's Regulations.

The meaning of Proposal 4 is not sufficiently clear to permit a determination of whether it is encompassed within section 7106(b)(1) as claimed by the Union or, if it is not, whether it impermissibly affects management's rights under section 7106(a) as claimed by the Agency. Accordingly, we dismiss the petition insofar as it concerns Proposal 4.

II. Background

The Office of Surface Mining (OSM), a subdivision of the Department of the Interior (Interior) was undergoing a reduction-in-force (RIF). Shortly before the effective date of the RIF, the Director of OSM issued a memorandum advising that the Agency would "rerun" retention registers to take into account funds that the Conference Committee recommended be restored in Interior's appropriation for Fiscal Year (FY) 1996 and vacancies resulting from voluntary separations.

In response to the Agency's memorandum, the Union requested to negotiate the number of positions to be added back to the AFO, a component of OSM.

III. Proposal 1

Local 2148 proposes that the following positions need to be added back to AFO:

From AFO's Non-RIF Vacancies

Computer Specialist: add one FTE

Reclamation Specialist (Activity 12): add one FTE

A. Positions of the Parties

1. Union

The Union explains this proposal as calling for the augmentation of the staffing complement of the AFO with one Computer Specialist and one Reclamation Specialist. The Union contends that this proposal is encompassed by section 7106(b)(1) because it concerns the number of employees or positions assigned to an organizational subdivision. The Union contends that pursuant to a provision in the parties' collective bargaining agreement, the Agency has agreed to negotiate over matters covered by section 7106(b)(1).

2. Agency

The Agency asserts that this proposal, which it contends would increase the FTE level that it has established within AFO, does not concern matters encompassed by section 7106(b)(1). The Agency argues that this proposal is inconsistent with management's rights to determine the number of employees in the agency under section 7106(a)(1), hire and assign employees under section 7106(a)(2)(A), and determine the personnel by which agency operations will be conducted under section 7106(a)(2)(B).

B. Analysis and Conclusions

1. Meaning of the Proposal (2)

Under this proposal, as worded and explained by the Union, the Agency would add two FTEs to the AFO--one Computer Specialist and one Reclamation Specialist. The Reclamation Specialist would be added to Activity 12.(3) As undisputed by the Agency, this proposal would increase the number of FTEs assigned to the AFO. Although the Union does not expressly say so, it is clear that it intends for the Agency to fill the two FTEs. In this regard, the Union justifies the addition of the FTEs by citing the existing workload within AFO. We construe this proposal as calling for the addition of two identified positions to the AFO and requiring that the positions be filled.

2. This Proposal Is Negotiable at the Election of the Agency Under Section 7106(b)(1)

The parties disagree whether this proposal comes within the terms of section 7106(a) or 7106(b)(1). In 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), the Authority set forth the approach for resolving negotiability disputes where parties disagree whether a proposal comes within the terms of section 7106(a) or 7106(b)(1). Under this approach, the Authority first examines the contention that a proposal is electively bargainable under section 7106(b)(1). If the proposal concerns a subject 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). In this circumstance, the Authority dismisses the petition as to the proposal pursuant to section 2424.10 of its regulations and if any union assertion that the Agency has elected to bargain is presented, the Authority does not address it. See id. at 394. However, if the proposal is not encompassed by section 7106(b)(1), the Authority proceeds to analyze it under section 7106(a).

As relevant to the parties' dispute in this case, section 7106(b)(1) makes electively negotiable the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty. As worded, this proposal would increase by two the number of FTEs, or positions, assigned to the AFO. Under this proposal as construed above, the Agency would fill the added positions and, hence, would increase the number of employees, as well as positions, assigned to the AFO. See id. at 395. The Union asserts, and the Agency does not dispute, that the AFO is an organizational subdivision within the meaning of section 7106(b)(1). Moreover, the record indicates that the AFO is an organizational subdivision within the Office of Surface Mining of the U.S. Department of the Interior.

Because this proposal concerns the numbers of employees and positions assigned to an organizational subdivision, we find that it comes within the terms of section 7106(b)(1). See id. at 395; cf. U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 46 FLRA 298, 316 (1992) (DMA, St. Louis) (right to determine number of employees under section 7106(a)(1) relates to the number of employees actually employed by an agency; "the numbers . . . of employees . . . assigned to any organizational subdivision" under section 7106(b)(1) encompasses the number of employees who are assigned to the various components within the Agency). Consequently, it is negotiable at the election of the Agency and we do not reach the Agency's contentions as to section 7106(a) or the Union's assertion that the Agency elected to bargain over such proposals. See VAMC, Lexington, 51 FLRA at 393-94.

IV. Proposal 2

[Local 2148 proposes that the following positions need to be added back to AFO:]

Office Automation Assistant Vacancy: fill this vacancy, one FTE

A. Positions of the Parties

According to the Union, this proposal requires filling a current vacancy rather than adding a position. The Union's argument concerning section 7106(b)(1) set forth in conjunction with Proposal 1 applies to this proposal as well.

The Agency makes the same arguments concerning this proposal as it made with respect to Proposal 1.

B. Analysis and Conclusions

1. Meaning of the Proposal

As worded and explained by the Union, this proposal calls upon the Agency to fill an existing vacant position within the AFO.

2. This Proposal Is Negotiable at the Election of the Agency Under Section 7106(b)(1)

Like Proposal 1, the parties disagree whether this proposal comes within the terms of section 7106(a) or 7106(b)(1). Consequently, we apply the approach set forth in VAMC, Lexington, which is described above.

Section 7106(b)(1) encompasses the number of employees assigned to an organizational subdivision. This proposal, which seeks the filling of an existing vacancy within the AFO, would effectively increase by one the number of employees assigned to the AFO. As stated in conjunction with Proposal 1, AFO is an organizational subdivision within the meaning of section 7106(b)(1). Consequently, this proposal concerns the numbers of employees assigned to an organizational subdivision.

This finding is consistent with our interpretation in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1029-31 (1997), that the "numbers, types and grades" phrase in section 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. The determination of whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff.

Because this proposal concerns the numbers of employees assigned to an organizational subdivision, we find that the proposal comes within the terms of section 7106(b)(1). Cf. DMA, St. Louis, 46 FLRA at 316 (program requiring the placement in vacancies of employees whose security clearances were revoked concerns the number of employees assigned to an organizational subdivision under section 7106(b)(1)). Consequently, Proposal 2 is negotiable at the election of the Agency and we do not reach the Agency's contentions as to section 7106(a) or the Union's claim that the Agency has elected to bargain.

V. Proposal 3

[Local 2148 proposes that the following positions need to be added back to AFO:]

From Additional AML [Abandoned Mine Land] Funding

Fund Shifting

AML Program Specialist (Activity 23): add one new position

Reclamation Specialist (Activity 12): reassignment of one FTE from "23"

A. Positions of the Parties

1. Union

The Union asserts that this proposal concerns the number of employees or positions assigned to an organizational subdivision and comes within section 7106(b)(1). According to the Union, the objective of this proposal is to increase the number of Reclamation Specialists assigned to perform "Activity 12" functions. In this regard, the Union explains in conjunction with Proposal 1, above, that the reduction-in-force has left the AFO with only four Reclamation Specialists whereas the workload in that office requires a minimum of six Reclamation Specialists. Petition, attachment 5 at 1. Under this proposal, the Union seeks to augment the staffing complement of Reclamation Specialists in the AFO by the device of adding an AML Program Specialist position and then reassigning one of the existing Activity 23 AML Program Specialist positions to perform Activity 12 functions as a Reclamation Specialist. In this regard, the Union explains that the AFO currently has two AML positions funded under the existing Activity 23 account, one of which would perform Activity 12 work "to make room" for the "new '23' position." Petition, attachment 5 at 2. According to the Union, this device would permit the Agency to take advantage of the funding for Activity 23 that was to be restored in the Agency's FY 1996 appropriation in order to add the needed Reclamation Specialist.

The Union specifically denies that it intends this proposal to direct a shifting of accounts within the Agency's budget. The Union describes the references in this proposal to funding sources as an effort "to simply show the agency how a compelling need for additional inspection (Reclamation Specialist) personnel could be filled without violating the intentions of Congress[.]" Union's supplemental submission at 2.

2. Agency

The Agency asserts that this proposal does not concern matters encompassed by section 7106(b)(1). The Agency argues that this proposal is inconsistent with management's rights to determine the number of employees in the agency under section 7106(a)(1), hire and assign employees under section 7106(a)(2)(A), and determine the personnel by which agency operations will be conducted under section 7106(a)(2)(B). The Agency claims that the second part of this proposal is also inconsistent with its management right to determine budget under section 7106(a)(1) because it affects the shifting of budgetary accounts rather than the mere reassignment of positions or employees.

B. Analysis and Conclusions

1. Meaning of the Proposal

As worded, this proposal would add one new AML Program Specialist position to the AFO and reassign one FTE from Activity 23 to Activity 12 as a Reclamation Specialist.(4) The Union states that in making this proposal, it did not intend to negotiate over the Agency's budget or direct any shifting of accounts in the Agency's budget but only to determine the number of employees assigned to the AFO to perform various functions for which the AFO is responsible. According to the Union, it intends the phrases "From Additional AML Funding," and "Fund Shifting" to suggest, rather than prescribe, a way to accommodate the staffing the proposal seeks.

In interpreting a disputed proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation is consistent with the plain wording, the Authority adopts that explanation for purposes of construing what the proposal means, and based on its 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).

The references to funding in this proposal are vague and, consequently, subject to differing interpretations. The Union's explanation that these references are only suggestive of how the Agency could fund the proposed addition and reassignment of positions is a reasonable construction of the proposal and we adopt it for purposes of this decision. Cf. Laurel Bay, 51 FLRA at 737 (where a proposal is silent as to a particular matter, a Union statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the proposal's wording).

With respect to staffing, this proposal imposes two requirements. First, the proposal requires the addition of an AML Program Specialist position to AFO. Second, the proposal requires the reassignment within AFO of one of the existing AML Program Specialist positions from Activity 23 functions to perform Activity 12 functions as a Reclamation Specialist.

Severance of these two requirements is not requested and is not practicable. In the context in which this proposal was presented and explained by the Union, the two requirements are inseparably linked. The Union explains that there are an insufficient number of Reclamation Specialists assigned to perform Activity 12 functions within AFO. See Petition, attachment 5 at 1. The second requirement of this proposal would alleviate that problem. However, there is no indication in the record that the Union wishes to remedy the perceived understaffing of Activity 12 by reducing the staffing of Activity 23. To the contrary, the Union has crafted a proposal that preserves the existing staffing level for Activity 23 while increasing staffing for Activity 12. Because it does not appear that the Union has any interest in a proposal that excludes one of the two staffing requirements, severing the two requirements and ruling on the negotiability of each requirement, standing alone, would distort the proposal. Cf. 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, 1161-62 (1992) (substantive revision of proposals is not the Authority's role).

Based on its wording and the Union's explanation of this proposal, we construe it as seeking the addition to the AFO of one new AML Program Specialist position to perform Activity 23 functions, and the reassignment within AFO of one of the existing AML Program Specialist positions to perform Activity 12 functions as a Reclamation Specialist position. We construe the proposal as suggesting, as contrasted with directing, the use of additional AML funding and fund shifting as a possible means of accommodating the proposed staffing augmentation. Thus, although this proposal imposes staffing requirements, it imposes no requirements with respect to funding.

2. This Proposal Is Negotiable at the Election of the Agency Under Section 7106(b)(1)

In American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794 (1996) (SSA, Mid-America) (Member Armendariz, concurring), the Authority 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 election of the Agency under section 7106(b)(1). Under that framework, when analyzing such a proposal it is necessary first to determine which requirement is dominant. SSA, Mid-America, 52 FLRA at 800. We then rely on that requirement for the purpose of determining the negotiability of the proposal. If the dominant requirement relates to a subject encompassed by section 7106(b)(1), the proposal is negotiable at the election of the agency.

The framework set forth in SSA, Mid-America applies because this proposal imposes two distinguishable but inseparable requirements on the Agency: (1) the addition of one AML Program Specialist position to the AFO and (2) the reassignment of one of the existing AML Program Specialist positions within AFO as a Reclamation Specialist position. As this proposal is constructed, the second requirement is dependent on the first for viability. That is, the reassignment of an existing AML Program Specialist position within AFO to perform Activity 12 functions as a Reclamation Specialist is dependent on the addition of one position to AFO. Consequently, the first requirement is dominant.

The dominant requirement of this proposal would add one position to the AFO and, consequently, concerns "numbers." It is clear that the Union intends that this position would be filled. In this regard, the Union cites the workload within the AFO as justification for the additional staff. Thus, the proposal concerns "employees" as well as "positions." As discussed in conjunction with Proposal 1 above, AFO is an "organizational subdivision" within the meaning of section 7106(b)(1). Because this proposal concerns the numbers of employees and positions assigned to an organizational subdivision, we find that this proposal comes within the terms of section 7106(b)(1) and is negotiable at the election of the Agency. Consequently, we do not reach the Agency's contentions as to section 7106(a) or the Union's claim that the Agency has elected to bargain.

VI. Proposal 4

Further Recommendation:

The RIFed employees added back to AFO in the positions described above should be brought back in the order of their seniority standing on the retention register for the Albuquerque competitive area as calculated by OSM for the RIF which became effective in AFO on August 30, 1995.

A. Positions of the Parties

1. Union

The Union asserts that this proposal concerns the numbers of employees or positions assigned to an organizational subdivision and comes within section 7106(b)(1).

2. Agency

The Agency asserts that this proposal does not concern a matter covered under section 7106(b)(1). The Agency argues that this proposal is inconsistent with its management rights to hire and layoff employees under section 7106(a)(2)(A), to determine the personnel by which agency operations will be conducted under section 7106(a)(2)(B), and with respect to filling positions, to make selections for appointments from among properly ranked and certified candidates for promotion or from any other appropriate source under section 7106(a)(2)(C).

B. Analysis and Conclusions

The Meaning of This Proposal Is Not Sufficiently Clear To Permit Disposition

On its face, this proposal specifies the order in which "RIFed" employees will be reemployed in the positions described in the first three proposals. The Union offers no explanation of this proposal. Several aspects of the proposal are not clear. Specifically, it is not clear whether the proposal: (1) requires that the positions be filled or whether its terms apply only after the decision to fill the positions has been made; (2) limits the source from which the Agency must fill the positions or permits use of any appropriate source, with its terms applying only if the Agency chooses to fill positions with employees separated as a result of the RIF; and/or (3) requires selection of a separated employee based solely on retention standing without regard to whether the employee is qualified for the particular position being filled.

Resolving these ambiguities in the meaning of this proposal is necessary to determine whether the proposal is negotiable at the election of the Agency as claimed by the Union or affects management's rights under section 7106(a) as claimed by the Agency. For example, although this proposal, as worded, does not require the establishment of positions, it is not clear whether the proposal requires the filling of the positions that it references. A determination of whether the proposal concerns the numbers of employees assigned to an organizational subdivision, as claimed by the Union, may rest on whether the proposal requires filling positions. Further, if, as claimed by the Agency, the proposal does not concern a matter covered by section 7106(b)(1) and disposition depends on analyzing whether this proposal affects the right to select, an inquiry into whether this proposal limits the source from which the positions may be filled would become relevant. See, e.g., American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colora