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45:1154(115)NG - - IAM, Local Lodge 2297 and Navy, Naval Aviation Depot, Cherry Point, NC - - 1992 FLRAdec NG - - v45 p1154

[ v45 p1154 ]
The decision of the Authority follows:

45 FLRA No. 115












(38 FLRA 1451 (1991))


September 9, 1992

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 the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point).

In our earlier decision in this case, we found that, with one exception no longer at issue, the two disputed proposals, which are set forth below, vitally affected the working conditions of employees in the bargaining unit and were consistent with applicable law or regulations. Accordingly, the Authority concluded that both of the proposals were negotiable.

On review of the Authority's decision and order, the court held that the Authority's construction of the "vitally affects" test was inconsistent with the Federal Service Labor-Management Relations Statute (the Statute) and with private sector precedent. Cherry Point, 952 F.2d at 1436.

In the court's view, 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." Id. at 1440. The court added that the test "is not implicated, however, merely because a union proposal, which is otherwise within the scope of mandatory bargaining, would, if accepted, have some impact on persons outside the bargaining unit." Id. (emphasis in original). The court recognized that most union bargaining demands have some "extra-unit effects" on non-unit personnel but held that such effects do not alter an employer's duty to bargain over mandatory subjects of bargaining. Id. at n.6. The court found that "proposals that principally relate to the conditions of employment of bargaining unit personnel are within the traditional scope of mandatory bargaining." Id. at 1441. According to the court, the vitally affects test is not relevant to such proposals.

In addressing the applicability of the vitally affects test, the court differentiated among four groups: non-bargaining unit employees, non-employees, management and supervisory personnel, and employees in other bargaining units. According to the court, the vitally affects test applies only when the interests of non-bargaining unit personnel are "directly implicated" by a union proposal or, phrased alternatively, when a proposal "purports to regulate the terms and conditions of employment of non-unit employees." Id. In such circumstances, the proposal would fall outside the mandatory scope of bargaining absent a showing that the proposal vitally affects conditions of employment of bargaining unit employees. The court reached the same conclusion as to proposals that seek to bargain with respect to non-employees, finding that a union may bargain over "a non-employee matter [that] vitally affects bargaining unit interests . . . ." Id. at 1442. However, the court held that the vitally affects test does not apply in circumstances where a union seeks to regulate through collective bargaining the conditions of employment of employees in other bargaining units and management and supervisory personnel who are excluded by the Statute from bargaining units. Id. at 1441.

The court held that the two proposals at issue in this case "are non-negotiable to the extent that they purport to regulate the conditions of employment of supervisory personnel and employees in other bargaining units." Id. at 1443. Accordingly, the court vacated the Authority's decision and order and remanded this case to the Authority for further proceedings consistent with the court's opinion. In remanding, the court noted that:

The only possibly unresolved issue is whether there are non-unit, non-supervisory employees at Cherry Point whose conditions of employment are directly implicated by the Local 2297 proposals. If there are such persons, the Authority can address on remand whether the "vitally affects" test is satisfied with respect to those persons on the facts of this case.


Upon receipt of the remand, the Authority issued an order directing the parties to file supplemental statements setting forth their positions as to: (1) whether the Authority should proceed further on the negotiability issues; and (2) if further proceedings were required, the effect of the court's decision in Cherry Point on the unresolved issue. In response to the order, the Agency filed a supplemental statement; the Union, however, did not.

II. The Proposals

Proposal 1

The employer agrees to use (sic) the maximum possible extent the skills of employees in the Unit. The area of consideration for promotion announcements shall be the Naval Air Rework Facility (now the Naval Aviation Depot), Marine Corps Air Station, and U.S. Naval Hospital, Cherry Point, N.C., unless this area will not supply sufficient candidates for the vacancy. The Employer will consult with the Union prior to extending the area of consideration. Consideration may also be made of voluntary applications of current agency employees outside the area of consideration. Every reasonable effort will be made by the Employer to obtain identical information on non-unit candidates as is obtained for Unit candidates. Non-unit candidates shall be evaluated as nearly as possible by the same criteria used to evaluate unit candidates. (Only the underlined language is in dispute.) 

Proposal 2

Section 1: A reserved parking space will be provided for the Union President, the Vice-President, Secretary & Treasurer, and five (5) Chief Stewards. Such parking spaces will be within reasonable walking distance of assigned working areas. In the event that an employee holds two of the above Union Offices, that official will only be assigned one reserved parking space.

Section 2: The Employer agrees that all other spaces outside the fence shall be open parking for all employees and the Employer on a first come first serve basis without regards to whether or not they are in the unit. Intent: To give unit employees equal access to all open parking areas.

b. Exceptions are as follows:

(1) Those spaces provided for in Section 1 above.

(2) Those officials of exclusively recognized Unions which are specifically provided for by a negotiated agreement.

(3) There shall be sufficient spaces set aside for those handicapped employees who have special problems relating to their ability to walk to and from their work site. In this regard, prior to considering a request for special parking, the handicapped employee must obtain a statement from the Industrial Medical Officer certifying that the employee's handicap is so severe, and so limits his ability to ambulate and that special consideration is warranted.

(4) Van Pool reserved spaces.

(5) A number of spaces equal to the number of reserved spaces for the union as set forth in Section 1 and Section 2 (2) may be

reserved outside the fence for the exclusive use of the Employer as Executive spaces. 1/

(6) Spaces for privately owned vehicles which are regularly used for Government business at least twelve (12) days per month and which qualify for reimbursement for mileage and travel expenses under Government travel regulations.

c. The currently assigned Union Official spaces will not be relocated without mutual agreement of both parties.

Section 3: If additional parking lots are opened in the future, which are to be other than open parking, the Employer agrees to notify the Union and given (sic) them the opportunity to meet and confer over any reserved spaces.

Section 4: Upon request the Union shall have access to a current display of all individuals assigned the above cited reserved parking spaces.

NOTE: It is acknowledged and understood that the above provisions regarding parking may have to be changed to comply with requirements and restrictions mandated by higher authority. Any changes will be in compliance with and administered in accordance with such higher authority directives.

Section 5: Changes to the provisions of this Article can be made by the mutual agreement of the Employer and the Union.

(Only the underlined language is in dispute.)

III. Positions of the Parties

The Agency states that although most of the non-supervisory personnel at the Cherry Point installation are included in bargaining units, one group of non-supervisory employees is not represented. Specifically, the Agency states that, while there are bargaining units that include some of the General Schedule (GS) employees of the Naval Aviation Depot, the bulk of the Depot's GS workforce is unrepresented.

The Agency asserts that there is "no proposal currently before the Authority which does not implicate supervisory employees and employees in other bargaining units." Agency's Supplemental Statement at 4. The Agency contends that the proposals currently before the Authority would require extensive revision in order to limit the scope of their application to members of the Union's bargaining unit and non-unit, non-supervisory employees. The Agency argues that any such revisions should be left for the parties to the collective bargaining relationship and should not be undertaken by the Authority.

Additionally, the Agency states that subsequent to the filing of the petition in this case, the parties entered into a collective bargaining agreement that contained provisions addressing the area of consideration for filling positions within the bargaining unit and parking at the facility. According to the Agency, that agreement has expired and "renegotiation of the agreement is anticipated." Id. at 7. The Agency argues that the Authority should forego any further action on these proposals and allow the parties to pursue the issues at the bargaining table.

Noting that the scope of the proposals would require drastic reduction in order to conform to the limits placed on the application of the vitally affects test by the court's decision, the Agency questions whether the Union would be interested in negotiating over an area of consideration that is limited to its bargaining unit and the unrepresented, non-supervisory GS positions at the Depot. In this regard, the Agency states that the latter positions "are not the types of positions which members of the union's bargaining unit traditionally seek for career advancement." Id. at 8. Insofar as the parking proposal is concerned, the Agency argues that there is no apparent reason why the Union would want to negotiate a parking policy that would apply only to the non-unit, non-supervisory employees in addition to the employees in its bargaining unit. In furtherance of its argument that the Union has no interest in negotiating parking policy for the unrepresented employees at the Depot, the Agency suggests that, under the court's decision in Cherry Point, the Union "can propose any method it chooses, which does not run afoul of applicable laws and regulations, to govern the priority for the allocation of parking spaces to its unit members." Id. at 9-10.

The Agency argues that neither of the proposals meets the vitally affects test. In this regard, the Agency, relying on a dictionary definition, contends that the term "vital" refers to matters that are "of the utmost importance" or "essential." Id. at 14. The Agency asserts that, under private sector precedent, the vitally affects test "is not [met] except in cases of critical importance to unit members, such as when their very employment is threatened." Id. at 15.

The Agency argues that a proposal for an area of consideration with the narrow scope demanded by the court's decision does not meet the vitally affects test. The Agency asserts that in order to comply with the court's decision Proposal 2 must be limited to the employees in the Union's bargaining unit and non-unit, non-supervisory employees. The Agency contends that there is no basis for concluding that "allowing the union to negotiate a parking policy for the non-unit, non-supervisory employees would have any impact on the interests of its unit members, let alone vitally affect those interests." Id. at 16 (emphasis in original).

As noted earlier, the Union did not file a supplemental statement.

IV. Analysis and Conclusions

As formulated by the court, the only issue before us is whether the proposals are negotiable to the extent that "there are non-unit, non-supervisory employees at Cherry Point whose conditions of employment are directly implicated by the . . . proposals." Cherry Point, 954 F.2d at 1443.

Prior to the issuance of our initial decision in this case, the Union had stated that its intent as to Proposal 1 was to negotiate the "minimum area of consideration for promotion announcements." Petition at 2. The Union argued that the past practice of one area of consideration for all of the activities located at the Cherry Point installation had operated well and that the Agency had not demonstrated any need for a smaller area of consideration. The Union stated, "[w]e hold the position that the minimum area of consideration should include all employees of the Marine Corps Air Station, Cherry Point."2/ Reply Brief at 1.

As written, Proposal 1 establishes a minimum area of consideration that encompasses all three activities located at the Cherry Point installation. The Union's statements concerning the intent of the proposal make clear that the Union specifically seeks to retain a minimum area of consideration that encompasses all employees at the Cherry Point installation. As written and explained by the Union, therefore, Proposal 1 is not consistent with a construction that it seeks or allows for an area of consideration of any proportions less than installation-wide, such as one limited to employees in the Union's bargaining unit and non-unit, non-supervisory employees. Under the circumstances that exist in this case, placing such limitations on the proposal would require substantive revision of the proposal.

Under the Authority's regulations, a proposal that has not been submitted to an agency for a declaration of nonnegotiability is not ripe for review in a negotiability appeal. See 5 C.F.R. ° 2424.1 and 2424.3; National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263, 268-69 (1990). Furthermore, we note that the Authority does not issue advisory opinions. 5 C.F.R. ° 2429.10. Therefore, in the absence of any basis in the record of this case for construing Proposal 1 as defining an area of consideration that is limited to the vacancies of employees in the Union's bargaining unit employees and those of non-unit, non-supervisory employees, it is not appropriate to rule on the negotiability of a proposal for such an area of consideration in this case. We conclude, based on the court's decision in Cherry Point, that Proposal 1 is nonnegotiable.

The second proposal establishes a parking policy that applies to "all employees and the Employer." Based on this wording and statements that the Union submitted prior to our earlier decision in this case, it is clear that the Union intends that the parking policies set forth in this proposal will apply to all personnel located at the Cherry Point installation. For example, the Union stated that it was seeking "to implement a fair for all parking policy." Reply Brief at 3. The Union further contended that:

There has been a standing practice since 1968 that Local Lodge 2297, the exclusive representative of the vast majority of employees in the Depot, would lead negotiations concerning parking. We have a vital interest in making sure no other unit negotiates a parking policy that would unduly penalize our unit members.

Statement of Position of the Union in Regards to Order Dated August 25, 1989, at 4.

Additionally, the Union stated:

[N]o other Union has disagreed with our proposal or concept of parking. . . . The Union is not primarily interested in special parking for Union officials, but rather is concerned for all unit and[,] yes, non-unit employees . . . .

Reply Brief at 4.

Proposal 2, as currently written and explained by the Union, is not consistent with a construction that limits its terms to employees who are in the Union's bargaining unit and non-supervisory employees who are not in any bargaining unit. As with Proposal 1, providing for such limitations would require substantive revision of this proposal, which is not the Authority's role. Because Proposal 2, as currently written, does not permit such a construction, we find that it is nonnegotiable based on the court's decision in Cherry Point. For the reasons expressed in conjunction with Proposal 1, we do not rule, in this case, on the negotiability of any proposal that may be presented in the future that is limited in scope to prescribing parking policies for employees in the Union's bargaining unit and non-supervisory personnel who are not represented in any bargaining unit.

In summary, we conclude that based on the court's decision in Cherry Point, Proposals 1 and 2 are not within the duty to bargain. Because neither proposal permits limitation of its terms to employees in the Union's bargaining unit and non-unit, non-supervisory personnel, we do not address "whether the 'vitally affects' test is satisfied with respect to those persons . . . ." Cherry Point, 952 F.2d at 1443.

V. Order

The petition for review is dismissed.

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

1/ In our earlier decision, we concluded that this subsection was nonnegotiable because it was inconsistent with a Governemnt-wide regulation. Our decision as to this subsection was not appealed. Therefore, the negotiability of this subsection is no longer at issue before us.

2/ In its submissions, the Union used the designation "Marine Corps Air Station" or "Air Station" to refer to the Cherry Point installation. As noted in the earlier decision in this case, the Naval Aviation Depot and the U.S. Naval Hospital are tenant activities of the Marine Corps Air Station. 38 FLRA at 1453.