National Association of Government Employees, Local R1-109 (Union) and United States, Department of Veterans Affairs, Connecticut Healthcare System (Agency)

[ v61 p588 ]

61 FLRA No. 113

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R1-109
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
CONNECTICUT
HEALTHCARE SYSTEM
(Agency)

0-NG-2817

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

May 10, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals. The proposals address vacancy postings for supervisory and managerial positions. The Agency filed a statement of position, the Union submitted a response, and the Agency filed a reply.

      For the reasons that follow, we find that the proposals are outside the duty to bargain and are negotiable only at the election of the Agency.

II.      The Proposals

1.      (Primary Language) Whenever the Employer decides to offer (post) vacant Supervisory and or Managerial Positions, all qualified unit employees shall have an equal opportunity to apply for such vacancies or;
     (Secondary Language) Whenever the Employer decides to offer (post) vacant Supervisory and or Managerial Positions to bargaining unit employees, all qualified unit employees shall have an equal opportunity to apply for such vacancies.
2.      In order to ensure equal opportunity to bargaining unit employees:
A.      (Primary Language) Whenever the employer decides to offer vacant Supervisory and or Managerial Positions the minimum area of consideration shall be the facility or;
     (Secondary Language) Whenever the employer decides to offer vacant Supervisory and or Managerial Positions within the bargaining unit the minimum area of consideration shall be the facility;
B.      (Primary Language) Whenever the employer decides to offer vacant Supervisory and or Managerial Positions the minimum area of consideration may be changed by written and mutual consent pursuant to article 22 of the Master Agreement or;
     (Secondary Language) Whenever the employer decides to offer vacant Supervisory and or Managerial Positions within the bargaining unit the minimum area of consideration may be changed by written and mutual consent pursuant to article 22 of the Master Agreement.
C.     (Primary Language) Whenever the employer decides to offer vacant Supervisory and or Managerial Positions vacancy notices will be in accordance with article 22 of the Master Agreement or;
     (Secondary Language) Whenever the employer decides to offer vacant Supervisory and or Managerial Positions within the bargaining unit vacancy notices will be in accordance with article 22 of the Master Agreement or.
D.     Employees may grieve violation of this MOU, including determination by the Employer of minimum qualifications for vacant Supervisory and or Managerial Positions through the negotiated grievance procedure.

III.     Meaning of the Proposals

      The parties participated in a post petition conference, verified the language of the proposals, and agreed to the meaning of the proposals that would constitute a Memorandum of Understanding (MOU). The Union submitted both primary, or preferred, and secondary, or alternative, language for many of the proposals. The secondary language differs from the primary language because it addresses situations in which the Agency [ v61 p589 ] might offer supervisory or managerial positions only to employees within the bargaining unit.

      The Union explains that the proposals address fairness in postings for supervisory and managerial positions. The Union also states that the proposals will ensure that the Agency's manner of posting supervisory and managerial positions does not violate merit systems principles and equal opportunity principles.

      Proposal 1 addresses the scope of postings for vacant positions and is intended to ensure that all bargaining unit employees are able to apply for any posted vacancy for a supervisory or managerial position in the facility. The Union explains that the secondary language of the proposal, set forth above, pertains to postings restricted to bargaining unit employees. The Union further explains that under the current practice, the Agency has discretion as to the postings of supervisory and managerial vacancies and that the proposal would mandate the scope of such postings.

      Proposal 2.A. describes the minimum area of consideration, and the Union explains that "the facility," as used in the proposal, includes the entire VA Connecticut Health Care System at both the Newington and West Haven locations. [n1]  The Union further explains that the primary language would apply to postings made generally throughout the facility and the secondary language would apply to postings made only to the bargaining unit. See Record of Post Petition Conference at 2.

      Under Proposal 2.B., Article 22 of the Master Agreement would control the scope of postings. [n2]  The Union states that both the primary and secondary language proposals would require written and mutual consent to narrow the minimum area of consideration, but not to broaden it.

      Under Proposal 2.C., Article 22 would control the manner in which vacancies must be posted. The Union states that both the primary and secondary language proposals are intended to ensure that postings for managerial and supervisory positions comply with the standards set forth in Article 22.

      Regarding Proposal 2.D., the Union states that the proposal is intended to permit employees to grieve, through the negotiated grievance procedure, any violation of the MOU. The proposal is not intended to allow employees to grieve the minimum established qualification standards by the Agency, but rather to grieve the application of those minimum qualification standards.

IV.     Positions of the Parties

A.      Agency

      The Agency contends that the proposals concern the filling of supervisory and managerial positions, a permissive subject of bargaining over which it has not elected to bargain. The Agency cites to AFGE, Local 12, 60 FLRA 533 (2004) (AFGE, Local 12) and other Authority precedent to support its position.

      Consistent with the foregoing, the Agency maintains that the proposals are negotiable only at the election of the Agency. [n3]  In particular, the Agency contends that Proposal 1 requires that all bargaining unit employees be allowed to apply for any posted supervisory or managerial vacancy.

      The Agency disputes the Union's assertion that the scope or coverage of Article 22 of the parties' collective bargaining agreement pertains to any positions that were offered to bargaining unit employees and argues that the agreement pertains only to the posting and filling of positions within the bargaining unit. Statement of Position (Statement) at 4. The Agency argues that the Authority should dismiss the Union's negotiability appeal because it raises a contract interpretation issue over whether the agreement's application is limited to filling bargaining unit positions. According to the Agency, the Authority has ruled that proposals purporting to interpret an existing collective bargaining agreement are not properly subject to a negotiability appeal. See Statement at 15. Therefore, the Agency contends that this appeal should be dismissed.

      The Agency also asserts that Proposal 2.D would permit employees to grieve through the negotiated grievance procedure any violation of the procedures or requirements set forth in the proposals. The Agency maintains that Proposal 2.D. is outside the duty to bargain because the Authority has found outside the duty to bargain any proposal that would subject the selection and selection procedures for nonbargaining unit positions to the parties' negotiated grievance procedure. See Statement at 10. The Agency notes (a) that the Union argues that its proposals are negotiable because the procedures [ v61 p590 ] used to fill supervisory or managerial positions affect the ability of bargaining unit employees to apply for those positions, and (b) that the Authority clearly rejected those arguments in NFFE, Local 1332, 6 FLRA 361 (1981) (NFFE, Local 1332).

      As to the Union's request that the Authority "reexamine its position" that proposals addressing how nonbargaining unit positions are announced and filled are negotiable only at the election of an agency, the Agency argues that the Union failed to provide the Authority with any legally sufficient basis to do so.

      With respect to the Union's argument that the proposals ensure employee rights to apply for nonbargaining unit positions, the Agency asserts that it "has not and is not interfering with any employment rights or protections cited by the Union in its [Response]." Reply at 6.

B.     Union

      The Union states that the focus of its petition is to persuade the Authority to "recognize the long-standing and unfettered statutory right" of bargaining unit employees to file an application for any employer vacancy. Response at 2-3. The Union cites to various equal employment opportunity and other merit principle statutes it believes protect employees in their right to apply for any position.

      The Union contends that the Authority has never ruled squarely on the negotiability of a proposal requiring an agency to give unit employees "equal opportunity to compete" for supervisory or managerial positions, or requiring an agency to provide unit employees notice of agency vacancies for non-unit positions. See id. at 4.

      The Union asserts that the Union may expand employees' procedural rights and/or protections where the law does not specifically provide such rights or protections, because "it is the difference between a matter being covered by the law, and a matter being provided for by law[.]" Id. at 4. The Union maintains that other agencies, such as the Merit Systems Protection Board and the Equal Employment Opportunity Commission, do not differentiate between bargaining unit and non-unit positions, but rather address the rights of qualified individuals to compete for employment.

      The Union argues that the Authority's precedent that the posting of supervisory or managerial vacancies is a "permissive" or "elective" subject of bargaining is "not grounded in law[.]" Id. The Union asserts that posting or filling supervisory or managerial vacancies is not one of the enumerated topics listed as elective for bargaining under § 7106(b)(1) of the Statute. Moreover, the Union notes the Authority's decision in Antilles Consol. Educ. Ass'n, 22 FLRA 235, 236-37 (1986) (Antilles), where the Authority stated it would find that a proposal addresses conditions of employment if the matter to be bargained pertains to bargaining unit employees and affects the working conditions of those employees. The Union asserts that the Antilles criteria are met here and, thus, this subject matter is within the Agency's duty to bargain. Accordingly, the Union asks that the Authority reexamine its precedent on the posting of supervisory and managerial vacancies.

      Regarding the meaning of the parties' agreement, the Union agrees that the parties' collective bargaining agreement does not cover or address supervisory or managerial vacancies. Therefore, the Union denies the Agency's contentions that the proposals seek to interpret the parties' collective bargaining agreement and that such a matter should be handled through binding arbitration. See Response at 6-7.

V.     Analysis and Conclusions

      Because the proposals concern the filling of supervisory and managerial positions, we will analyze the proposals together. See AFGE, Local 12, 60 FLRA at 535 n.2 (where proposals involve similar issues and Authority precedent, the Authority analyzes them together).

      The Agency claims that the petition should be dismissed because the parties disagree over the meaning of the agreement. However, in its response, the Union agreed with the Agency as to the meaning of the agreement. Therefore, the Agency's claim that the petition should be dismissed is rejected as moot.

A.      The Proposals Are Negotiable Only at the Election of the Agency Because the Proposals Concern Supervisory and Managerial Positions

      The Authority has long held that matters concerning promotion procedures for supervisory positions do not involve the conditions of employment of bargaining unit employees and are, therefore, outside the statutory duty to bargain. However, unless such proposals are contrary to law or government-wide regulation, or nonnegotiable on some other ground, they are negotiable at the election of the agency. See Int'l Ass'n of Fire Fighters, Local F-61, 3 FLRA 438, 444-45 (1980) (Local F 61). The Authority affirmed this longstanding precedent in AFGE, Local 12, 60 FLRA at 538. The Authority has also held that any proposal to subject the selections and selection procedures for nonbargaining unit positions to the parties' negotiated grievance procedure is outside the duty to bargain. See NTEU, [ v61 p591 ] 25 FLRA 1067, 1079 (1987), aff'd as to other matters, 848 F.2d 1273 (D.C. Cir. 1988). This longstanding precedent also applies to supervisory or managerial positions filled on a temporary basis. See, e.g., AFGE v. FLRA, 841 F.2d 1165, 1167 (D.C. Cir. 1988) (proposal concerning the filling of supervisory positions, including temporary appointments, is negotiable only at the election of the agency).

      We conclude that the proposals here are negotiable at the election of the Agency. For example, both the primary and secondary language of Proposal 1 provide for equal opportunity for bargaining unit employees to apply for supervisory or managerial positions. The Authority has held such proposals to be outside the duty to bargain. See Local F-61, 3 FLRA at 444-45. Therefore, because Proposal 1 addresses promotion procedures for supervisory positions, Proposal 1 is negotiable only at the election of the Agency.

      We also conclude that both the primary and secondary language of Proposal 2.A. are negotiable at the election of the Agency. Proposal 2.A. addresses the minimum area of consideration for filling supervisory or managerial positions. The Authority found a similar proposal negotiable at the election of the Agency in Hawaii Fed. Employees Metal Trades Council, AFL-CIO, 4 FLRA 15, 16 (1980). Because Proposal 2.A. is negotiable at the election of the Agency, and the Union has not requested severance of any part of Proposal 2, the entire proposal is negotiable only at the election of the Agency. [n4]  See AFGE, Local 12, 60 FLRA at 538 (because the proposals do not concern the conditions of employment of bargaining unit employees, the proposals are negotiable only at the election of the Agency).

      Based on our discussion above, we find that the duty to bargain does not extend to Proposals 1 and 2 and that the proposals are negotiable only at the election of the Agency.

B.      We Find No Basis to Reconsider Our Precedent

      The Union argues that the Authority should reconsider its precedent regarding the permissive nature of proposals dealing with filling supervisory and managerial positions. The Union asserts that other statutes protecting employee rights to apply for positions do not differentiate between bargaining and nonbargaining unit positions and that the Union's proposals would operate the same way by also protecting the rights of employees to apply for supervisory and managerial positions as well as bargaining unit positions. The Union also argues that the Authority should reconsider its precedent regarding the filling of supervisory and managerial positions based upon the Authority's decision in Antilles.

      The Union has not established that reconsideration of our precedent in this area is warranted. The Union notes correctly that the merit systems and equal employment opportunity statutes it relies on do not differentiate between bargaining unit and nonbargaining unit positions, and protect bargaining unit employees when they apply for both bargaining unit and nonbargaining unit positions. However, the scope of bargaining for the parties is established by the Statute, which the Authority and the courts have construed as differentiating between unit and nonunit positions in this regard. See, e.g., Fort Stewart Schools v. FLRA, 495 U.S. 641, 644 (1990); NFFE, Local 29, 32 FLRA 721, 730 (1988); AFGE, AFL-CIO, Local 1897, 24 FLRA 377, 380 (1986) (see legislative history of the Statute discussed therein). Thus, the Union's reliance on merit system and equal employment opportunity statutes is misplaced.

      We also conclude that the Authority's decision in Antilles does not support the Union's position in this case. In Antilles, the Authority set forth the test to determine whether a proposal affects a condition of employment of bargaining unit employees. That test considers two factors: (1) whether the matter proposed to be bargained pertains to bargaining unit employees; and (2) the nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. See Antilles, 22 FLRA at 236-37 (emphasis omitted). Both factors must be satisfied to determine that a proposal affects a condition of employment. See, e.g., NTEU, 58 FLRA 611, 613 (2003).

      As to the first Antilles factor, whether a proposal pertains to bargaining unit employees, a proposal that is principally focused on nonbargaining unit positions or employees does not directly affect the work situation or employment relationship of bargaining unit employees. See Antilles, 22 FLRA at 237 (citing to NFFE, Local 1451, 3 FLRA 88 (1980), aff'd 652 F.2d 191 (D.C. Cir. 1981)). As more specifically noted in Antilles, a proposal that established the method management would use to fill supervisory and managerial positions did not affect the working conditions of bargaining unit employees. See id., Appendix, Part 1, 22 FLRA at 242-43; AFGE, Local 12, 60 FLRA at 538; NFFE, Local 1332, 6 FLRA at 362-63. Thus, contrary to the Union's argument, Antilles actually supports the conclusion that agencies have no obligation to bargain over proposals relating to the filling of supervisory and managerial [ v61 p592 ] positions. We also note that the Authority discussed this issue extensively in AFGE, Local 12, and the Union does not assert or explain why that case was wrongly decided.

      Based on the foregoing, the Union has established no basis for the Authority reconsidering its precedent regarding the permissive nature of proposals dealing with filling supervisory and managerial positions.

C.      We Need Not Determine Whether the Proposals Constitute Procedures or Appropriate Arrangements

      As the Agency makes no claim that the proposals affect management rights under § 7106 of the Statute, there is no basis on which to consider the Union's § 7106(b)(2) and (3) claims. See, e.g., AFGE, Local 1164, 54 FLRA 1327, 1335-36 (1998).

D.       Summary

      We have found that there is no duty to bargain over the proposals in dispute and that the proposals are negotiable only at the election of the Agency. Consistent with § § 2424.40(b) of our Regulations and with our recent decision in Nat'l Weather Serv. Employees Org., 61 FLRA 241 (2005) (Chairman Cabaniss concurring), appeal docketed, No. 05-1397 (D.C. Cir. Oct. 13, 2005) we will issue an order dismissing the petition for review and stating that the proposals are negotiable only at the election of the Agency. [n5] 

VI.     Order

      Because the duty to bargain does not extend to the proposals, the petition for review is dismissed. The proposals are bargainable only at the election of the Agency.


APPENDIX

Article 22

Merit Promotion

Section 1. Purpose and Policy

The Parties agree that the purpose and intent of the provisions contained herein are to ensure that promotions are made equitably and in a consistent manner. Promotions shall be based solely on job-related criteria, and without regard to political, religious, labor organization affiliation or non-affiliation, marital status, race, color, sex, sexual orientation, national origin, non-disqualifying disabling condition, or age. This article sets forth the merit promotion system, policies, and procedures applicable to bargaining unit positions in the Department.

. . . .

Section 8. Vacancy Announcements, Rating and Ranking, and Areas of Consideration

A.      All positions to be competitively filled in the bargaining unit by actions covered by this Article shall be posted unless filled under Section 7 which provides for exclusions from coverage. For the same type of vacancy (title, series, and grade and area of consideration) a certificate may be used for up to 90 days to refer candidates without reannouncing the vacancy.

. . . .

D.      Among candidates who are determined to be best-qualified, internal candidates will be considered as follows:

      First - Facility-wide (including satellites) except:

This area may be made more narrow or expanded through mutual written agreement. However, where evidence suggests that the first area of consideration is not expected to produce at least three qualified candidates, it may be expanded to the second area when the vacancy is initially announced. The vacancy announcement will identify the expanded area of consideration.

      Second - VA-wide

      Third-

1.      Reassignments/demotions to positions with higher known promotion potential.
2.      Reinstatements to positions at a higher grade or with higher known potential.
3.      Transfers to positions at a higher grade or with higher known potential.

The Local will be notified prior to narrowing or expanding the area of consideration. First and full consideration must be given to any best-qualified candidates identified within the area of consideration.



Footnote # 1 for 61 FLRA No. 113 - Authority's Decision

   We note that the Union represents non-professional bargaining unit employees in the Newington division, but the American Federation of Government Employees represents other employees at the West Haven location. See Statement of Position at 3.


Footnote # 2 for 61 FLRA No. 113 - Authority's Decision

   Pertinent portions of Article 22 are set forth in the Append