American Federation of Government Employees, Local 2, AFL-CIO (Union) and Department of the Army, Military District of Washington (Agency)
[ v04 p450 ]
04:0450(60)NG
The decision of the Authority follows:
4 FLRA No. 60
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2
Union
and
DEPARTMENT OF THE ARMY,
MILITARY DISTRICT OF WASHINGTON
Agency
Case No. O-NG-107
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).
UNION PROPOSAL
THE EMPLOYER AND THE UNION MUTUALLY AGREE THAT THE PURPOSE AND INTENT
OF THE PROVISONS
CONTAINED HEREIN ARE TO ASSURE THAT MERIT PROMOTION PRINCIPLES ARE
APPLIED IN A CONSISTENT
MANNER AND UNDER THE SPECIFIC CONDITIONS SET FORTH IN THIS ARTICLE
AND/OR MDW REGULATION
690-335 FOR POSITIONS WITHIN THE UNITS OF EXCLUSIVE RECOGNITION HELD
BY AFGE LOCAL 2 AND
INCLUDE ANY POSITIONS FOR WHICH BARGAINING UNIT EMPLOYEES ARE
ELIGIBLE FOR (SIC) AND ARE
ADMINISTERED BY THE RESPECTIVE RECRUITING AND PLACEMENT DIVISION OF
CIVILIAN PERSONNEL FOR THE
MILITARY DISTRICT OF WASHINGTON. (THE UNDERLINED PORTION OF THE
PROPOSAL IS IN DISPUTE.)
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE DISPUTED PORTION OF THE UNION'S PROPOSAL
IS OUTSIDE OF THE AGENCY'S DUTY TO BARGAIN UNDER SECTION 7117 OF THE
STATUTE, BECAUSE IT CONCERNS MATTERS THAT ARE NOT CONDITIONS OF
EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.
OPINION
CONCLUSION AND ORDER: TO THE EXTENT THAT THE PROPOSAL CONCERNS MERIT
PROMOTION PROCEDURES FOR POSITIONS WITHIN THE BARGAINING UNIT, IT IS
WITHIN THE OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 FED.REG. 48,575(1980)), IT
IS ORDERED THAT THE AGENCY SHALL, UPON REQUEST (OR AS OTHERWISE AGREED
BY THE PARTIES) BARGAIN CONCERNING THE PROPOSAL TO THIS EXTENT. /1/ TO
THE EXTENT THAT THE PROPOSAL WOULD APPLY MERIT PROMOTION PROCEDURES TO
THE FILLING OF POSITIONS OUTSIDE THE BARGAINING UNIT, IT IS BARGAINABLE
ONLY AT THE ELECTION OF THE AGENCY AND THE AGENCY HAS DECLINED TO
BARGAIN ON THE MATTER. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45
FED.REG. 48,575(1980)), IT IS ORDERED THAT THE UNION'S PETITION FOR
REVIEW BE DISMISSED TO THIS EXTENT.
REASONS: THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE IS DERIVED
IN PART FROM SECTION 7114(A)(4), WHICH PROVIDES, IN RELEVANT PART:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
* * * *
(4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE
UNIT IN THE AGENCY,
THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
FAITH FOR THE PURPOSES
OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT . . . .
SECTION 7114(B)(2) FURTHER STATES THAT THE DUTY TO NEGOTIATE IN GOOD
FAITH SHALL INCLUDE THE OBLIGATION "TO DISCUSS AND NEGOTIATE ON ANY
CONDITION OF EMPLOYMENT." "CONDITIONS OF EMPLOYMENT" ARE DEFINED IN
SECTION 7103(A)(14) AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
* * * *
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
(A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER II
OF CHAPTER 73 OF THIS
TITLE;
(B) RELATING TO THE CLASSIFICATION OF ANY POSITION; OR
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE . . . .
SECTION 7117(A)(1) FURTHER DESCRIBES THE DUTY TO BARGAIN IN GOOD
FAITH AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THUS, THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF
THE STATUTE EXTENDS TO CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL
POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, AFFECTING
EMPLOYEES IN A UNIT OF EXCLUSIVE RECOGNITION UNLESS THE MATTERS PROPOSED
FOR BARGAINING ARE INCONSISTENT WITH FEDERAL LAW OR GOVERNMENT-WIDE RULE
OR REGULATION.
THE STATUTE FURTHER DELINEATES THE DUTY TO BARGAIN IN SECTION
7103(A)(12) WHICH DEFINES "COLLECTIVE BARGAINING" AS FOLLOWS:
SECTION 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
* * * *
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . . .
IT IS CLEAR, THEREFORE, THAT THE DUTY TO BARGAIN APPLIES ONLY TO
THOSE CONDITIONS OF EMPLOYMENT WHICH AFFECT EMPLOYEES WITHIN THE
BARGAINING UNIT.
THE DISPUTED PORTION OF THE INSTANT PROPOSAL PROVIDES THAT THE
NEGOTIATED MERIT PROMOTION PROCEDURES APPLICABLE TO THE BARGAINING UNIT
REPRESENTED BY AFGE LOCAL 2 WILL BE APPLIED TO ALL POSITIONS "FOR WHICH
BARGAINING UNIT EMPLOYEES ARE ELIGIBLE." ACCORDING TO THE AGENCY'S
SUBMISSION, THE MILITARY DISTRICT OF WASHINGTON (MDW) INCLUDES 24
BARGAINING UNITS REPRESENTED BY FIVE DIFFERENT UNIONS, INCLUDING LOCAL
2, AND CONTAINS APPROXIMATELY 4,500 POSITIONS. LOCAL 2, HOWEVER, IS THE
EXCLUSIVE REPRESENTATIVE FOR ONLY NINE OF THE 24 BARGAINING UNITS
CONTAINING APPROXIMATELY 2,800 POSITIONS. THUS, BY THE LANGUAGE OF THE
DISPUTED PORTION OF THE UNION'S PROPOSAL, WHENEVER EMPLOYEES IN THE
BARGAINING UNITS REPRESENTED BY LOCAL 2 ARE ELIGIBLE FOR CERTAIN
NON-BARGAINING UNITS POSITIONS, I.E., POSITIONS IN ANY OF THE OTHER 15
BARGAINING UNITS NOT REPRESENTED BY LOCAL 2 OR SUPERVISORY POSITIONS
WHICH ARE SPECIFICALLY EXCLUDED FROM ALL BARGAINING UNITS UNDER THE
STATUTE, /2/ THE MERIT PROMOTION PROCEDURES APPLICABLE TO EMPLOYEES
REPRESENTED BY LOCAL 2 WOULD BE EXTENDED TO THE FILLING OF SUCH
NON-BARGAINING UNIT POSITIONS.
IN THIS REGARD, THE AUTHORITY HELD IN INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO.
66(1980), THAT THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS ONLY TO
CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. WHILE AN AGENCY
IS NOT PROHIBITED FROM BARGAINING ON MERIT PROMOTION PROCEDURES FOR
NON-BARGAINING UNIT POSITIONS, AND MAY, AT ITS ELECTION, DO SO, IT IS
NOT OBLIGATED TO BARGAIN ON SUCH MATTERS.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:
MR. RONALD D. KING
DIRECTOR
CONTRACT & APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE,N.W.
WASHINGTON, D.C. 20005
MR. DAVID H. GREEN
CHIEF, EMPLOYEE MANAGEMENT RELATIONS
OFFICE OF THE ASSISTANT SECRETARY
MANPOWER AND RESERVE AFFAIRS,
ROOM 3D254, THE PENTAGON
WASHINGTON, D.C. 20301
MR. WILLIAM J. SCHRADER
CHIEF
LABOR AND EMPLOYEE RELATIONS DIVISION
HQDA (DAPE-CPL)
WASHINGTON, D.C. 20310
--------------- FOOTNOTES$ ---------------
/1/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN TO THE EXTENT IT CONCERNS MERIT PROMOTION PROCEDURES FOR
POSITIONS WITHIN THE BARGAINING UNIT, THE AUTHORITY MAKES NO JUDGMENT ON
THE MERITS OF THIS PART OF THE PROPOSAL.
/2/ SECTION 7112(B) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
REPRESENTATION
* * * *
(B) . . . NOR SHALL A UNIT BE DETERMINED TO BE APPROPRIATE IF IT
INCLUDES--
(1) . . . ANY . . . SUPERVISOR . . . .