[ v45 p1132 ]
The decision of the Authority follows:
45 FLRA No. 112
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in United States Department of Defense, Defense Mapping Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir. Feb. 28, 1992) (Defense Mapping Agency v. FLRA). The court vacated our decision and order to the extent that we held that Proposal 2 was negotiable. The court remanded the case for further proceedings consistent with the court's decision in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). On remand, we conclude that Proposal 2 is negotiable.
A. Proposal 2
53-1 Supervisory Backups
The following procedure will be followed in assigning backups to the supervisor in his/her absence:
The supervisor will ask each of the employees they directly supervise if they wish to be a supervisory backup. The supervisor will compile a list indicating the employees interested in serving as a backup. The list of backups will be posted in the work area so that any employee wishing to follow the chain of command can contact the correct person.
A supervisor will give written objective job[-]related reasons for not assigning an employee as his/her backup. This documentation will be made available to the Union for review upon request. The documentation will be locally maintained for a period of one (1) year.
B. Authority Decision and Order
In National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1183-91 (1991) (Defense Mapping Agency), we found that Proposal 2, concerning the selection of unit employees to serve as supervisory backups, was negotiable. Specifically, we found that the proposal concerned the conditions under which unit employees would be assigned supervisory duties in addition to the regular duties of their positions. We also found that the proposal did not concern the detail of a unit employee to a supervisory position.
We concluded that, although the proposal concerns the work of nonunit positions, the proposal vitally affects the conditions of employment of unit employees and, therefore, unless otherwise precluded, was within the duty to bargain under the Statute. We also concluded that the proposal did not directly interfere with management's rights, under section 7106(a)(2) of the Statute, to assign employees or assign work or, under section 7106(b)(1), to determine the types of employees assigned to an organizational subdivision, work project, or tour of duty. Consequently, we found that the proposal was a negotiable procedure under section 7106(b)(2) of the Statute.
The Agency sought review in the United States Court of Appeals for the District of Columbia Circuit of our conclusion that Proposal 2 vitally affects the conditions of employment of unit employees. During the pendency of that appeal, the court issued its decision in Cherry Point. Because the issues on appeal in this case were related to the issues in Cherry Point, the court remanded this case to us for consideration in light of its holdings in Cherry Point. Both parties have filed briefs addressing, on remand, the application of the court's decision in Cherry Point to the proposal at issue in this case.
III. Positions of the Parties
The Agency notes that, under the court's opinion in Cherry Point, the vitally affects test has "no application" to proposals that attempt "to regulate the conditions of employment of supervisory personnel . . . ." Agency's Brief on Remand at 6. Consequently, the Agency argues, a proposal that directly implicates the conditions of employment of supervisory personnel "can never become a mandatory subject of bargaining." Id.
The Agency asserts that "Authority precedent has long established that the procedures which management must follow in filling supervisory positions, including temporary ones, are not matters affecting conditions of employment of unit employees and are negotiable only at the election of the [a]gency." Id. at 10. The Agency claims that "the same principle" applies to this case. Id. at 11.
According to the Agency, "[b]argaining unit positions and supervisory responsibilities are incompatible insofar as management's duty to bargain is concerned." Id. The Agency states that, under the disputed proposal, employees "technically" remain in the bargaining unit and continue to perform "some of the usual daily tasks" of their bargaining unit positions, while at the same time assuming supervisory responsibilities. Id. The Agency claims that the proposal is "intended to regulate that aspect of the dual position which involves the supervisory responsibilities." Id. at 11-12. The Agency maintains that although the proposal might directly affect unit members, its "focus" is "on regulating how management chooses who is to perform in a supervisory role." Id. at 11 n.11 (emphasis in original) (citing First National Maintenance Corp. v. NLRB, 452 U.S. 666, 667 (1981)).
The Agency argues that any actions taken by an employee in the role of acting supervisor are matters outside the scope of the collective bargaining relationship. The Agency maintains that the bargaining obligation extends only to matters that settle an aspect of the relationship between bargaining unit employees and the employer. The Agency contends that the disputed proposal attempts to regulate the selection of persons to assume supervisory responsibilities and that the proposal, therefore, does not concern an aspect of the relationship between the Agency and unit employees, even if the person selected remains in the unit "for some purposes." Id. at 13. According to the Agency, a person performing in the role of acting supervisor lacks the "community of interest" with bargaining unit employees required for inclusion in the bargaining unit. Id.
The Union contends that the disputed proposal "involves communication [and] procedure." Union's Brief on Remand at 1. The Union notes that the "supervisory backup" referenced in the proposal is not a detail or a temporary promotion and does not require any form of personnel action. Id. The Union claims that being selected as a supervisory backup enhances employees' promotion potential. The Union also claims that management does not want to explain its selections for supervisory backup because its "actual reasons" include "various types of prohibited actions" and "protected activities." Id. According to the Union, the Authority precedent cited by the Agency concerns "personnel actions" and is not relevant to this case. Id.
IV. Analysis and Conclusions
For the following reasons, we find that Proposal 2 does not seek to regulate the conditions of employment of supervisory personnel, but principally relates to the conditions of employment of unit employees and, consequently, is negotiable.
In Cherry Point, the court approved the Authority's adoption of the vitally affects test used in the private sector, but found that the Authority had misapplied that test in certain circumstances. According to the court, the vitally affects test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." Cherry Point, 952 F.2d at 1440. As the court stated in Cherry Point, "[m]andatory subjects are those that principally relate to the conditions of employment of bargaining unit employees." Id. at 1439.
In discussing the application of the vitally affects test, the court differentiated among four groups of personnel that might be affected by a proposal: (1) employees not in any bargaining unit; (2) nonemployees; (3) management and supervisory personnel; and (4) employees in other bargaining units. As relevant here, the court held that the vitally affects test does not apply in circumstances where a union seeks to regulate conditions of employment of supervisory and management personnel who are excluded by the Statute from bargaining units. Id. at 1441. The court noted that, pursuant to section 7112 of the Statute, supervisors and managers "are legally disabled from belonging to any bargaining unit[.]" Id. at 1442. The court concluded, therefore, that permitting a union to seek to negotiate to regulate the conditions of employment of supervisors and other management personnel would "violate the fundamental principle that a union is the exclusive representative of employees in the certified or recognized unit, and those employees only." Id. (emphasis in original) (citing National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA 290, 292 (1980) (Department of Labor) (Authority held nonnegotiable a proposal specifying procedures for filling management and supervisory positions)). See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1422-23 (1992).
Stated in terms of the principles set forth by the court in Cherry Point, the issue in this case on remand is whether Proposal 2 seeks to regulate the conditions of employment of supervisory personnel or whether the proposal principally relates to the conditions of employment of unit employees. Cherry Point, 952 F.2d at 1441-42.
Proposal 2 establishes a procedure governing the assignment of supervisory duties temporarily to unit employees. The proposal does not require management to use unit employees as backups for absent supervisors, but only takes effect when management has decided that a unit employee will fill in for a short period of time for the supervisor. Consequently, the intent of the proposal is not to regulate the conditions of employment of supervisory personnel, but to determine the manner in which unit employees will be assigned as supervisory backup. Accordingly, we find that the proposal principally relates to the conditions of employment of unit employees. See Cherry Point, 952 F.2d at 1439. See also National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 44 FLRA 18, 28 (1992).
Proposal 2 is distinguishable from Proposal 1 in National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 45 FLRA 640 (1992). In that case, we found, applying Cherry Point, that the proposal, which required specific training for supervisors, sought to regulate the conditions of employment of supervisors. Consequently, we concluded that the proposal did not concern the conditions of employment of unit employees. Proposal 2, in contrast, does not establish job requirements for supervisory personnel, but, rather, establishes the procedures to be followed when management decides to assign supervisory duties temporarily to unit employees. The purpose of the proposal is to determine the manner in which unit employees will be assigned those duties and, thus, the proposal principally relates to the conditions of employment of unit employees.
We also find, for similar reasons, that Proposal 2 is distinguishable from the proposal at issue in Department of Labor. The proposal in Department of Labor prescribed the conditions governing the permanent filling of a supervisory position outside the unit with a unit employee. On the other hand, Proposal 2 prescribes the conditions governing the temporary assignment of supervisory duties to an employee in the unit and, therefore, principally relates to the conditions of employment of unit employees. We note that when a unit employee is permanently or temporarily assigned to a supervisory position, that employee is not included in the unit during the period of the assignment. See, for example, National Federation of Federal Employees, Local 1442 and U.S. Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, 44 FLRA 723, 726-27 (1992).
However, we reject the Agency's assertion that, under Proposal 2, although the unit employee to whom supervisory duties are temporarily assigned "technically" remains in the unit, the employee is outside the unit "for some purposes." Statement of Position at 11 and 13. The Agency provides no support for its contention that a unit employee who temporarily performs some supervisory backup duties under Proposal 2 would be required to be removed from the unit.
Accordingly, we find that the intent and the effect of the proposal in Department of Labor is entirely different from the intent and the effect of Proposal 2 in this case. Consequently, we find that Proposal 2 is distinguishable from Department of Labor.
For the foregoing reasons, we find, under Cherry Point, that Proposal 2 principally relates to the conditions of employment of unit employees, rather than purporting to regulate the conditions of employment of supervisory personnel. Because we found in Defense Mapping Agency that Proposal 2 does not directly interfere with management's rights, under section 7106(a)(2)(B), to assign work and, under section 7106(b)(1), to determine the types of employees assigned to an organizational subdivision, work project, or tour of duty, we conclude that the proposal is negotiable.
The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 2.*/
(If blank, the decision does not have footnotes.)
*/ In finding the proposal negotiable, we make no judgment as
to its merits.