American Federation of Government Employees, Local 1546 (Union) and United States, Department of Defense, Defense Logistics Agency, Defense Distribution Depot, San Joaquin, Stockton, California (Agency)

[ v58 p368 ]

58 FLRA No. 88

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1546
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION DEPOT,
SAN JOAQUIN, STOCKTON, CALIFORNIA
(Agency)

0-NG-2644

_____

DECISION AND ORDER ON
A NEGOTIABILITY ISSUE

March 10, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

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. The Agency filed a statement of position and the Union filed a response. The Agency did not file a reply to the Union's response. For the reasons which follow, we dismiss the petition for review.

II.     Proposal

Reassignments to be changed, with additional 100 positions from Bulk Division to Bin Division, WL's, WG 5's/ 6's.

III.     Meaning of the Proposal

      The parties agree that the proposal would require the Agency to reassign 100 employees from the Bulk Division to the Bin Division. The group of reassigned employees would be comprised of work leaders and WG-05 and WG-06 level employees. [ v58 p369 ]

IV.     Positions of the Parties

A.     Agency

      The Agency first argues that the Union's petition for review was not timely filed. The Agency claims that it served the Union with a written allegation of non-negotiability on October 5, 2001, and that the Union did not file the petition for review until January 7, 2002. The Agency argues that the petition for review was not timely filed because the Union did not file its response within 15 days of the service of the written allegation of non-negotiability.

      The Agency also contends that the proposal relates to the numbers, types and grades of employees and that the proposal is therefore negotiable only at the election of the Agency. Further, the Agency asserts that the parties' supplemental collective bargaining agreement does not require bargaining over the proposal. The Agency maintains that that agreement expired in April 1998 and that consequently it is no longer bound by provisions resulting from bargaining over permissive subjects. [n1] 

      Finally, the Agency argues that a negotiability appeal is an improper forum in which to resolve the matter. According to the Agency, the parties disagree as to which articles of the collective bargaining agreement apply in this dispute. In the Agency's view, the meaning of the agreement as a whole must be determined to resolve the dispute and that such a determination is improper in the context of a negotiability appeal.

B.     Union

      In its petition for review, the Union requests a hearing to resolve the following issue: "Negotiated management rights. Under statute (FLRA) law and procedures the Union is contending certain right by (contract language). Negotiated in good faith in supplemental contract." Petition for review at 5.

      In response to the Agency's request that the petition be dismissed because it is untimely, the Union claims that it filed the petition for review on September 25, 2001, prior to receiving a written allegation of non-negotiability. According to the Union, it requested the written allegation from the Agency after the Authority ordered the Union to submit such an allegation. The Union claims that it then re-filed the petition for review with the written allegation of non-negotiability on October 22, 2001. Therefore, it claims that it timely filed the petition for review.

      In the Union's view, the proposal relates to proposed changes in the Agency's organizational structure. The Union contends that it can negotiate over the proposal because it can negotiate the numbers, types and grades of employees in a reorganization under Article S-29, Section S-1(G) of the supplemental agreement. [n2] 

V.     Preliminary Matters

      The Union requests a hearing to resolve certain issues in the case. Under § 2424.31 of the Authority's Regulations, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact . . . ." Here, the Union has not set forth any disputed issues of material fact for the Authority to consider at a hearing. Therefore, we deny the Union's request for a hearing.

      The Agency requests that the Authority dismiss the Union's petition for review as untimely filed. Under § 2424.21(a) of the Authority's Regulations, an exclusive representative must file a petition for review within 15 days of the service of an agency's written allegation of non-negotiability. If the allegation of non-negotiability is served by mail, the exclusive representative is afforded an additional five days to file its response. 5 C.F.R. § 2429.22. According to the Agency, it served the written allegation of non-negotiability to the Union by mail on October 5, 2001. Statement of Position at 2. Therefore, the Authority's Regulations required the Union to file the petition for review by October 26, 2001 (October 20, 2001, fell on a weekend). The Union's petition for review is postmarked October 22, 2001. The date of filing is determined by the date of mailing indicated by the postmark date. 5 C.F.R. § 2429.21(b). The Union's petition for review was filed on October 22, 2001, and is therefore timely under the Authority's Regulations. [n3] 

VI.     Analysis and Conclusion

      The Authority has found that the phrase "numbers, types, and grades of employees or positions assigned to [ v58 p370 ] any organizational subdivision, work project, or tour of duty" in § 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. NAGE, Local R5-184, 52 FLRA 1024, 1030 (1997); see also NFFE, Local 2148, 53 FLRA 427, 432 (1997).

      Here, the parties do not dispute that the proposal concerns the numbers, types and grades of employees. Instead, the parties dispute whether Article S-29, Section 1-G. of the parties' agreement requires the Agency to negotiate over the Union's proposal. The petition for review does not raise a statutory bargaining obligation dispute, but a contractual bargaining obligation dispute instead. The Authority, in negotiability appeals, determines only whether there is a statutory obligation to bargain. See AFGE, Local 3529, 57 FLRA 172, 176 (2001). The Authority will not resolve a contractual bargaining obligation dispute in the context of a negotiability appeal. See id. As the petition for review raises only an issue as to whether there is a contractual obligation to bargain and not an issue as to the parties' bargaining obligations under the Statute, we will dismiss the petition for review.

VII.     Order

      The petition for review is dismissed.



Footnote # 1 for 58 FLRA No. 88 - Authority's Decision

   Article S-45, Section S-1 of the Supplemental Agreement provides: "This [s]upplement will remain in effect for a period not to exceed three (3) years from the date of signature by the Parties." Agency Exhibit 3 at 63. Although the signatures of the parties are not dated, the agreement indicates that it passed Agency head review in April 1995. Id. at signature page.


Footnote # 2 for 58 FLRA No. 88 - Authority's Decision

   Article S-29, Section S-1-G. provides: "The [p]arties agree to negotiate the numbers, types and grades of e