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44:0723(58)NG - - NFFE Local 1442 and Letterkenny Army Depot, Chambersburg, PA - - 1992 FLRAdec NG - - v44 p723

[ v44 p723 ]
The decision of the Authority follows:

44 FLRA No. 58




LOCAL 1442









March 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

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). It concerns the negotiability of one proposal providing that the bargaining unit status of employees will remain unchanged. For the following reasons, we find that the proposal is nonnegotiable.

II. Background

In its petition for review, the Union states that the Agency changed its merit promotion procedure to include within its coverage temporary reassignments, and then temporarily reassigned an employee into a vacant bargaining unit position. Subsequently, the Agency amended the employee's reassignment to reflect that it was a detail. The Union also states that at the time the employee was "'temporarily reassigned'" she was a dues-paying member of another bargaining unit represented by another local union. Petition at 1. The Union notes that when the employee filed a grievance, the Agency took the position that the Union, rather than the employee's local union, should represent the employee. The Union asserted that the employee's temporary reassignment was actually a detail and that bargaining unit status does not change while an employee is on detail because the employee's "actual position of record is still within the bargaining unit." Id.

Subsequently, the parties entered into negotiations to discuss a number of Union proposals relating to bargaining unit status and temporary reassignments. The following proposal is the only one at issue before the Authority.

III. Proposal

Bargaining unit status will not change.

IV. Positions of the Parties

A. The Agency

According to the Agency, the proposal is designed to maintain all negotiated conditions of employment for employees who are temporarily reassigned outside the bargaining unit. However, the Agency states that when employees are on temporary reassignments, they are transferred to the rolls of the gaining activity and become part of that activity's bargaining unit, as appropriate. The Agency contends that allowing employees to maintain the bargaining unit status of the losing activity would, in effect, allow the Union to bargain over conditions of employment of employees outside the bargaining unit. Consequently, the Agency argues that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute. The Agency cites a number of Authority decisions which, in its view, support the proposition that terms and conditions of employment, including those contained in negotiated agreements, do not apply to employees who are detailed or transferred outside their bargaining unit.

B. The Union

The Union states that a "'temporary reassignment' is nothing more than an extended detail[,]" and that the unit status of an employee on detail does not change in accordance with past practice at the Agency. Petition at 2. The Union adds that it "is only looking to add on an extension of protections already enjoyed and extended by management under details." Id.

V. Analysis and Conclusions

Under the terms of the proposal, and as explained by the Union, various "protections" that are afforded to employees by virtue of their bargaining unit status would continue when employees are temporarily reassigned to positions that are outside the bargaining unit. Id. Inasmuch as the Union does not define bargaining unit status or the term protections, the precise nature of the terms and conditions of employment that would attach to employees under such circumstances is not clear. The parties, of course, are responsible for creating a record upon which the Authority can make a negotiability determination and they act at their peril when they fail to do so. See National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990). Given the factual context in which this case arose, as discussed previously, however, we find that the proposal is nonnegotiable because, if agreed upon, it would impose a contractual requirement that would be inconsistent with the Statute in the following respects.

First, the proposal could, in certain circumstances, conflict with section 7114(a)(2)(B) of the Statute. In Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222 (1988) (Charleston Naval Shipyard), the Authority was presented with a situation in which an employee represented by one labor organization was detailed to a position in a unit represented by a different labor organization. After the detail ended and the employee returned to his original position, he was required to attend an examination in connection with a disciplinary investigation regarding his actions while on detail. An issue arose as to which of the two labor organizations was entitled to the opportunity to be represented at this examination under section 7114(a)(2)(B) of the Statute. In addressing the representation rights and obligations of the two unions, the Authority held that the event triggering the right to representation under section 7114(a)(2)(B) is the "examination of an employee in the unit." Id. at 228. The Authority then determined that it was the union representing the unit where the employee was located at the time of the examination that was entitled to represent the employee at the examination. The Authority further found that the agency violated the Statute by insisting that the other labor organization, which represented the unit to which the employee had been detailed, be given the opportunity.

We find that the proposal here would operate to require that the Union be given the opportunity to be represented at an examination of an employee under section 7114(a)(2)(B) of the Statute even if the examination takes place while the employee is assigned to a position in a bargaining unit that is represented by a different labor organization. Based on Charleston Naval Shipyard, such a result would be inconsistent with the employee's representation rights and would, therefore, be inconsistent with section 7114(a)(2)(B) of the Statute. Additionally, under the proposal, the Union could refuse to provide representation to an employee temporarily assigned to a position in its bargaining unit on the basis that the employee's status as a member of a different bargaining unit warrants representation by that labor organization. Such a result also would be wholly inconsistent with section 7114(a)(2)(B) of the Statute. In this regard, the Union notes that it had been asked to represent an employee who had been temporarily assigned to a position in its unit and that the Union disagreed with the Agency's position that the Union was obligated to provide that representation, rather than the labor organization representing the employee in the unit from which the employee was assigned. Instead, the Union claimed that an employee's bargaining unit status should not change in such circumstances. Therefore, based on the Union's stated position and the language of the proposal, we conclude that the proposal would conflict with section 7114(a)(2)(B) of the Statute.(*)

We further find that a literal reading of the proposal would be inconsistent with section 7115 of the Statute pertaining to an employee's voluntary allotment for dues deductions. It is well established under that section that an employee's allotment terminates when an agreement between an agency and the exclusive representative of employees ceases to be applicable to the employee. For example, section 7115 operates to require the termination of a dues allotment when an employee is temporarily promoted to a supervisory position. See, for example, International Association of Machinists and Aerospace Workers, Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 25 FLRA 194, 196-99 (1987) (portion of proposal that dues deductions of employees temporarily promoted for 30 days or less continue found to conflict with section 7115 of the Statute). The proposal at issue is broadly worded and could apply to employees who are temporarily promoted to supervisory positions. To the extent the proposal would require that employees be considered as members of the bargaining unit while so assigned and would contractually require the Agency to continue dues deductions for such employees when they are outside the bargaining unit, the proposal is inconsistent with section 7115 of the Statute.

In sum, we conclude, based on the circumstances presented here, that the proposal is nonnegotiable.

VI. Order

The petition for review is dismissed.

(If blank, the decision does not have footnotes.)

*/ Our discussion assumes, of course, that all the requirements of section 7114(a)(2)(B) otherwise will have been met in order for the right to representation to attach.