American Federation of Government Employees, AFL-CIO, Local 1786 (Union) and Marine Corps Development and Education Command, Quantico, Virginia (Activity)  

 2 FLRA No. 58
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1786
 (Union)
 
 and
 
 MARINE CORPS DEVELOPMENT AND EDUCATION
 COMMAND, QUANTICO, VIRGINIA
 (Activity)
 
                                       	   Case No. 0-NG-4
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                               PROVISION /1/
 
    (ARTICLE XVIII) SECTION 3.  DATA FOR THE ADMINISTRATIVE SUPPORT AND
 PATRON SERVICES SURVEYS WILL BE COLLECTED BY JOINT UNION-MANAGEMENT
 TEAMS, AS IS CRAFTS AND TRADES DATA, AND WILL BE PRESENTED TO THE LOCAL
 WAGE SURVEY COMMITTEE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE DISPUTED PROVISION OF THE PARTIES'
 LOCALLY NEGOTIATED AGREEMENT VIOLATES SECTION 7106(A)(2)(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR) STATUTE, /2/ AS
 ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION DOES NOT VIOLATE SECTION 7106(A)(2)(B) OF
 THE STATUTE.  THUS, THE AGENCY'S ALLEGATION THAT THE PROVISION IS NOT
 WITHIN THE DUTY TO BARGAIN WAS IMPROPER AND, PURSUANT TO SECTION 2424.8
 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED.  REG. 44,740 ET
 SEQ.(1979)), IS SET ASIDE.  /3/
 
    REASONS:  THE PROVISION HERE IN DISPUTE WOULD ESTABLISH A UNION RIGHT
 TO REPRESENTATION ON WAGE SURVEY TEAMS WHICH GATHER LOCAL PREVAILING
 WAGE DATE FOR USE IN DETERMINING THE PAY OF CERTAIN HOURLY-PAID
 NONAPPROPRIATED FUND (NAF) EMPLOYEES.
 
    HOURLY-PAID NAF EMPLOYEES ARE GROUPED INTO THREE JOB CLASSIFICATIONS
 AS FOLLOWS:  /4/ CRAFTS AND TRADES (CT) WORKERS SUCH AS COOKS,
 ELECTRICIANS, JANITORS, PLUMBERS, AND WAREHOUSEMEN;  ADMINISTRATIVE
 SUPPORT (AS) EMPLOYEES SUCH AS RECEPTIONISTS, SECRETARIES, AND AUDIT,
 FILE, OR PAYROLL CLERKS;  AND PATROL SERVICE (PS) EMPLOYEES SUCH AS
 CASHIER-CHECKERS, CUSTOMER SERVICE CLERKS, SALES CLERKS AND TICKET
 SELLERS.  ALTHOUGH SUCH NAF EMPLOYEES ARE EXCEPTED GENERALLY FROM LAW
 ADMINISTERED BY THE OFFICE OF PERSONNEL MANAGEMENT, /5/ THE PROVISIONS
 OF TITLE 5 U.S.C. CONCERNING THE DETERMINATION OF PAY FOR HOURLY-PAID
 EMPLOYEES OF THE FEDERAL GOVERNMENT (I.E., 5 U.S.C. SEC. 5341 ET SEQ.)
 SPECIFICALLY APPLY TO NAF CT EMPLOYEES.  /6/ THESE STATUTORY PAY SETTING
 PROCEDURES AND THE IMPLEMENTING REGULATIONS CONTAINED IN FEDERAL
 PERSONNEL MANUAL SUPPLEMENT 532-2 ESTABLISH THAT THE PAY OF HOURLY-PAID
 PERSONNEL, INCLUDING NAF CT EMPLOYEES, WILL BE DETERMINED THROUGH THE
 USE OF LOCAL WAGE SURVEYS OF LIKE PRIVATE SECTOR JOBS.  FURTHER, THE
 STATUTE AND REGULATIONS SPECIFICALLY PROVIDE THAT UNIONS REPRESENTING
 SUCH HOURLY-PAID EMPLOYEES WILL PARTICIPATE AT EVERY STAGE OF THE PAY
 DETERMINATION PROCESS INCLUDING REPRESENTATION ON LOCAL WAGE SURVEY
 TEAMS.  /7/
 
    THE DEPARTMENT OF DEFENSE HAS ADMINISTRATIVELY EXTENDED CERTAIN OF
 THE PRINCIPLES OF THE STATUTORY PAY SETTING PROCEDURES APPLICABLE TO CT
 EMPLOYEES, SUCH AS, FOR EXAMPLE, THE USE OF LOCAL WAGE SURVEYS OF LIKE
 PRIVATE SECTOR JOBS, TO AS AND PS EMPLOYEES.  HOWEVER, CERTAIN STATUTORY
 ENTITLEMENTS GRANTED TO UNIONS REPRESENTING CT EMPLOYEES, I.E., AS
 RELEVANT IN THIS CASE, THE RIGHT TO REPRESENTATION ON LOCAL WAGE SURVEY
 TEAMS, WERE NOT ADMINISTRATIVELY EXTENDED TO UNIONS REPRESENTING AS AND
 PS EMPLOYEES.  AS A RESULT, A UNION REPRESENTING CT, AS AND PS EMPLOYEES
 IN ONE BARGAINING UNIT WOULD HAVE A STATUTORY RIGHT TO REPRESENTATION ON
 LOCAL WAGE SURVEY TEAMS GATHERING WAGE DATA TO BE USED IN DETERMINING
 THE PAY OF CT EMPLOYEES BUT NO SIMILAR RIGHT TO REPRESENTATION ON OTHER
 WAGE SURVEY TEAMS GATHERING WAGE DATA TO BE USED IN DETERMINING THE PAY
 OF AS AND PS EMPLOYEES.
 
    THE AGENCY CONTENDS, IN THIS CASE, THAT THE DETERMINATION OF PAY OF
 AS AND PS EMPLOYEES CONSTITUTES AN OPERATION OF THE AGENCY AND THUS, THE
 RIGHT TO DETERMINE THE PERSONNEL BY WHICH THAT OPERATION IS CONDUCTED,
 INCLUDING THE PORTION CONCERNING THE COLLECTION OF LOCAL PREVAILING WAGE
 DATA, IS SPECIFICALLY RESERVED TO AGENCY MANAGEMENT BY SECTION
 7106(A)(2)(B) OF THE STATUTE.
 
    THE AGENCY POSITION LACKS MERIT.  IT IS CLEAR THAT THE COLLECTION BY
 THE WAGE SURVEY TEAMS OF LOCAL PREVAILING WAGE DATA IS AN ESSENTIAL PART
 OF THE PROCESS FOR DETERMINING THE PAY OF AS AND PA EMPLOYEES AND
 DIRECTLY AFFECTS THE WORKING CONDITIONS OF SUCH EMPLOYEES.  FURTHER,
 IRRESPECTIVE OF WHETHER THE USE OF SUCH WAGE SURVEY TEAMS CONSTITUTES A
 PART OF THE OPERATION OF THE AGENCY OR IS A PROCEDURE BY WHICH THE PAY
 DETERMINATION OPERATION IS CARRIED OUT, NOTHING IN THE DISPUTED
 PROVISION WOULD INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE THE
 PERSONNEL WHO WILL REPRESENT THE AGENCY'S INTERESTS ON SUCH WAGE SURVEY
 TEAMS.  THE UNION'S PROVISION MERELY PROVIDES THAT THERE WILL BE UNION
 REPRESENTATION ON SUCH ALREADY ESTABLISHED WAGE SURVEY TEAMS.  MOREOVER,
 THE DISPUTED PROVISION IS ENTIRELY CONSISTENT WITH THE PUBLIC POLICY AS
 EXPRESSED BY CONGRESS IN 5 U.S.C. 5343(C)(2), OF PROVIDING LABOR
 ORGANIZATIONS A DIRECT ROLE IN THE DETERMINATION OF PAY FOR CERTAIN
 HOURLY-PAID EMPLOYEES OF THE FEDERAL GOVERNMENT.
 
    IN SUMMARY, THE AGENCY HAS NOT DEMONSTRATED THAT THE DISPUTED
 PROVISION, WITHIN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, WOULD
 INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE THE PERSONNEL BY WHICH AN
 AGENCY OPERATION IS CARRIED OUT.
 
    THEREFORE, THE PROVISION AT ISSUE CONCERNS A MATTER WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION
 TO THE CONTRARY IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JANUARY 17, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE PARTIES NEGOTIATED THE DISPUTED PROVISION AS PART OF THEIR
 LOCAL COLLECTIVE BARGAINING AGREEMENT.  DURING THE REVIEW PROCESS
 PURSUANT TO SECTION 15 OF EXECUTIVE ORDER 11491, AS AMENDED, THE AGENCY
 DISAPPROVED THE PROVISION.  THE PARTIES SUBSEQUENTLY NEGOTIATED A
 MEMORANDUM OF UNDERSTANDING IN WHICH THEY AGREED TO DELETE THE DISPUTED
 PROVISION FROM THE COLLECTIVE BARGAINING AGREEMENT AND IN WHICH THE
 ACTIVITY AGREED TO REOPEN THE CONTRACT TO NEGOTIATE THE PROVISION IF THE
 AUTHORITY WERE TO FIND IT TO BE WITHIN THE DUTY TO BARGAIN.
 
    /2/ SECTION 7106(A)(2)(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE PROVIDES IN PERTINENT PART AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
 AGENCY --
 
   *          *          *          *
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   *          *          *          *
 
 
    (B) . . . TO DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL
 BE CONDUCTED.
 
    /3/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROVISION.
 
    /4/ SEE DEPARTMENT OF DEFENSE (DOD) MANUAL 1401.1-M, PERSONNEL POLICY
 MANUAL FOR NONAPPROPRIATED FUND INSTRUMENTALITIES, CHAP. III AND
 APPENDIX B(1978).
 
    /5/ 5 U.S.C. SEC. 2105(C).
 
    /6/ 5 U.S.C. SEC. 5342(A)(2)(C).
 
    /7/ SEE, E.G., 5 U.S.C. SEC. 5343(C)(2) AND FEDERAL PERSONNEL MANUAL
 SUPP. 532-2, SUBCHAPTERS S3-3.B AND S5-6.E.(B).