09:0687(81)NG - Service Employees' International Union Local 556 and Army, Office of the Adjutant General, Hale Koa Hotel, Honolulu, HI -- 1982 FLRAdec NG

 9 FLRA No. 81
 
 SERVICE EMPLOYEES' INTERNATIONAL
 UNION, AFL-CIO, LOCAL 556
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 OFFICE OF THE ADJUTANT GENERAL,
 HALE KOA HOTEL, HONOLULU, HAWAII
 Agency
 
                                            Case No. O-NG-306
 
                 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).  UPON CAREFUL
 CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
 THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
    PRIOR TO A REORGANIZATION, THE HALE KOA HOTEL WAS PART OF THE U.S.
 ARMY SUPPORT COMMAND, HAWAII (USASCH).  UNDER A REORGANIZATION, THE HALE
 KOA HOTEL AND ITS EMPLOYEES WERE TRANSFERRED ADMINISTRATIVELY FROM THE
 CONTROL AND SUPERVISION OF THE COMMANDER, USASCH TO THE OFFICE OF THE
 ADJUTANT GENERAL (THE AGENCY).  SUBSEQUENT TO THE REORGANIZATION, THE
 UNION PETITIONED TO BE AND WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE
 OF A NEW AND SEPARATE UNIT COMPRISED ONLY OF HALE KOA HOTEL EMPLOYEES.
 (CASE NO. 8-RO-17).  /1/
 
    FURTHER, AS A RESULT OF THE REORGANIZATION, USASCH DETERMINED THAT
 THE EMPLOYEES OF THE HALE KOA HOTEL WERE NO LONGER IN THE USASCH
 COMPETITIVE AREA FOR REDUCTION-IN-FORCE (RIF) PURPOSES.  THE UNION
 THEREUPON FILED AN UNFAIR LABOR PRACTICE CHARGE (CASE NO.  8-CA-352),
 ALLEGING THAT THE USASCH HAD VIOLATED SECTION 7116(A)(1) AND (5) OF THE
 STATUTE BY CHANGING THE ESTABLISHED COMPETITIVE AREA UNILATERALLY AND
 WITHOUT CONSULTATION IN THIS REGARD.  THE REGIONAL DIRECTOR FOR REGION 8
 DISMISSED THE CHARGE, HOLDING THAT THE HALE KOA EMPLOYEES WERE NO LONGER
 EMPLOYEES OF THE USASCH AND HELD THAT THE USASCH NO LONGER WAS UNDER ANY
 OBLIGATION TO INCLUDE THE HALE KOA EMPLOYEES IN ITS COMPETITIVE AREA FOR
 RIF PURPOSES, AS THEY WERE NOW UNDER THE JURISDICTION OF THE ADJUTANT
 GENERAL'S OFFICE.  THE UNION'S SUBSEQUENT APPEAL TO THE GENERAL COUNSEL
 WAS DENIED.
 
    THE UNION THEN SUBMITTED TO THE AGENCY THE BARGAINING PROPOSAL HERE
 IN DISPUTE, TO REESTABLISH A COMPETITIVE AREA FOR RIF PURPOSES COVERING
 BOTH THE AGENCY'S EMPLOYEES AND EMPLOYEES OF USASCH INSTALLATIONS.  (THE
 TEXT OF THE UNION'S PROPOSAL IS SET FORTH IN THE APPENDIX.) THE
 AUTHORITY CONCLUDES, FOR THE FOLLOWING REASONS WHICH ARE CONSISTENT WITH
 THOSE OF THE REGIONAL DIRECTOR IN DISMISSING THE RELATED UNFAIR LABOR
 PRACTICE CHARGE INVOLVING THE USASCH, THE INSTANT PROPOSAL IS NOT WITHIN
 THE DUTY TO BARGAIN OF THE PRESENT EMPLOYER.
 
    UNDER THE STATUTE, THE SCOPE OF THE OBLIGATION TO BARGAIN EXTENDS TO
 MATTERS DIRECTLY AFFECTING THE CONDITIONS OF EMPLOYMENT OF EMPLOYEES IN
 AN APPROPRIATE UNIT OF EXCLUSIVE RECOGNITION.  NATIONAL COUNCIL OF FIELD
 LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
 U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C., 3 FLRA 289 (1980);  OVERSEAS
 EDUCATION ASSOCIATION AND DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS
 SCHOOLS, ALEXANDRIA, VIRGINIA, 7 FLRA NO. 11 (1981) AS CLARIFIED, JUNE
 1, 1982.  FURTHERMORE, A BARGAINING PROPOSAL WHICH DIRECTLY WOULD AFFECT
 BARGAINING UNIT EMPLOYEES IN RELATION TO THE CONDITIONS OF EMPLOYMENT
 WITHIN THE BARGAINING UNIT AND IS OTHERWISE CONSISTENT WITH APPLICABLE
 LAWS AND REGULATIONS, WOULD BE WITHIN THE DUTY TO BARGAIN DESPITE THE
 FACT THAT IT ALSO WOULD AFFECT NONUNIT EMPLOYEES WITH RESPECT TO SUCH
 CONDITIONS OF EMPLOYMENT.  NATIONAL TREASURY EMPLOYEES UNION AND
 INTERNAL REVENUE SERVICE, 7 FLRA NO. 42 (1981) (PROPOSED PROCEDURES FOR
 FILLING POSITIONS WITHIN THE BARGAINING UNIT BY REASSIGNMENT OR TRANSFER
 OF NON-BARGAINING UNIT EMPLOYEES HELD TO BE WITHIN THE DUTY TO BARGAIN).
  HOWEVER, A UNION PROPOSAL CONCERNING MATTERS WHICH ARE TERMS AND
 CONDITIONS OF THE BARGAINING UNIT'S EMPLOYMENT RELATIONSHIP WOULD BE
 OUTSIDE THE DUTY TO BARGAIN TO THE EXTENT THE PROPOSAL ALSO WOULD
 DETERMINE CONDITIONS OF EMPLOYMENT IN ANOTHER BARGAINING UNIT.  SUCH A
 PROPOSAL WOULD REACH BEYOND THE REPRESENTATION RIGHTS OF THE EXCLUSIVE
 REPRESENTATIVE.  NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT OF
 LABOR, WASHINGTON, D.C., 3 FLRA 289 (1980) (PROPOSED PROCEDURES FOR
 FILLING SUPERVISORY AND MANAGERIAL POSITIONS OUTSIDE THE BARGAINING UNIT
 WITH UNIT EMPLOYEES ARE NOT WITHIN THE DUTY TO BARGAIN).  /2/
 
    THE PRESENT DISPUTED PROPOSAL WOULD ESTABLISH A COMPETITIVE AREA FOR
 RIF PURPOSES WHICH WOULD INCLUDE BOTH BARGAINING UNIT EMPLOYEES AT THE
 HALE KOA HOTEL AND EMPLOYEES IN ANOTHER UNIT OF EXCLUSIVE
 REPRESENTATION.  APPLICABLE REGULATIONS PROMULGATED BY THE OFFICE OF
 PERSONNEL MANAGEMENT ESTABLISH CERTAIN MANDATORY PROCEDURES WHICH MUST
 BE APPLIED THROUGHOUT A COMPETITIVE AREA IN A RIF.  /3/ SINCE THE
 PROPOSAL WOULD GIVE UNIT EMPLOYEES RIGHTS TO NONUNIT POSITIONS AND THUS
 COULD RESULT IN NONUNIT EMPLOYEES BEING DISPLACED FROM THEIR PRESENT
 EMPLOYMENT, THE PROPOSAL CLEARLY WOULD DETERMINE THE CONDITIONS OF
 EMPLOYMENT OF NONUNIT EMPLOYEES IN THEIR CURRENT EMPLOYMENT
 RELATIONSHIP.  AS SUCH, THE PROPOSAL CONCERNS MATTERS BEYOND THE
 REPRESENTATION RIGHTS OF THE UNION.  THUS, PURSUANT TO SECTION
 7114(A)(4) OF THE STATUTE, /4/ THE AGENCY HAS NO OBLIGATION TO BARGAIN
 OVER THE UNION'S PROPOSAL IN THIS CASE.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1982)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW OF THE DISPUTED PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
 ISSUED, WASHINGTON, D.C., AUGUST 3, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                              UNION PROPOSAL
 
    SECTION 6.  COMPETITIVE AREA IS DEFINED AS THE AREA IN WHICH
 COMPETITION EXISTS IN RELATION TO A COMPETITIVE LEVEL.  A COMPETITIVE
 AREA CONSISTS OF ALL NONAPPROPRIATED FUND INSTRUMENTALITIES UNDER THE
 JURISDICTION OF THE EMPLOYER.  FOR THE PURPOSES OF REDUCTION IN FORCE,
 THE COMPETITIVE AREAS FOR THE UNIT WILL BE IDENTIFIED AS FOLLOWS:
 
    MINOR REDUCTION IN FORCE (30 OR LESS POSITIONS ABOLISHED OR REDUCED
 IN CATEGORY AS A RESULT OF A SINGLE RIF ACTION).
 
    AREA I ALL USASCH NAF ACTIVITIES IN THE HONOLULU AREA.
 
    AREA II ALL USASCH NAF ACTIVITIES IN THE SCHOFIELD-WAIANAE AREA.
 
    AREA III ALL USASCH NAF ACTIVITIES AT KILAUEA OUTDOOR RECREATION
 CENTER.
 
    AREA IV ALL USASCH NAF ACTIVITIES AT POHAKULOA TRAINING CAMP.
 
    MAJOR REDUCTION IN FORCE (MORE THAN 30 POSITIONS ABOLISHED OR REDUCED
 IN CATEGORY AS A RESULT OF A SINGLE RIF ACTION).
 
    AREA I ALL USASCH NAF ACTIVITIES ON THE ISLAND OF OAHU.
 
    AREA II ALL USASCH NAF ACTIVITIES AT KILAUEA OUTDOOR RECREATION
 CENTER.
 
    AREA III ALL USASCH NAF ACTIVITIES AT POHAKULOA TRAINING CAMP.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE UNIT WAS DEFINED AS INCLUDING "ALL NONAPPROPRIATED FUND
 EMPLOYEES EMPLOYED BY THE DEPARTMENT OF THE ARMY ADJUTANT GENERAL'S
 CENTER (TACCEN), HALE KOA HOTEL, HONOLULU, HAWAII" AND EXCLUDING "ALL
 PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES,
 PERSONS PERFORMING FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY, AND SUPERVISORS."
 
    /2/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2 AND
 DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA NO. 60
 (1980) (PROPOSAL WHICH IS SEVERABLE WITH REGARD TO ITS EFFECT ON UNIT
 AND NONUNIT EMPLOYEES, AND OTHERWISE IS CONSISTENT WITH APPLICABLE LAWS
 AND REGULATIONS, IS WITHIN THE DUTY TO BARGAIN TO THE EXTENT THAT IT
 AFFECTS UNIT EMPLOYEES).
 
    /3/ 5 CFR PART 351 (1982).  SEE ALSO INTERNATIONAL FEDERATION OF
 PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, NASA HEADQUARTERS
 PROFESSIONAL ASSOCIATION AND NATIONAL AERONAUTICS AND SPACE
 ADMINISTRATION, HEADQUARTERS, WASHINGTON, D.C., 8 FLRA NO. 46 (1982), IN
 WHICH THE AUTHORITY EXAMINED AND EXPLAINED IN DETAIL THE MANNER IN WHICH
 REASSIGNMENT RIGHTS ARE CREATED IN A REDUCTION-IN-FORCE.
 
    /4/ SECTION 7114(A)(4) PROVIDES, IN PERTINENT PART:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    (A)(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.
 
    SEE ALSO SECTION 7103(A)(12).