54:0669(71)NG - - NAGE Local R4-45 & DOD, Defense Commissary Agency - - 1998 FLRAdec NG - - v54 p669

[ v54 p669 ]
The decision of the Authority follows:

54 FLRA No. 71













July 31, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.Statement of the Case

This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contains one proposal with two sections. The Agency filed a statement of position, to which the Union did not respond. For the reasons that follow, we find that the record is insufficient for us to make a negotiability determination regarding either section of this proposal. Accordingly, we dismiss the petition.

II.The Proposal (1)

[Article 4,] Section 1. When a part-time employee has worked for three (3) years at DeCA he/she will be converted to a full-time position.

[Article 4,] Section 3. Each commissary shall staff the work force as follows:

70% Regular full-time
25% Regular part-time
5% Intermittents

III.Positions of the Parties

A.The Union

The Union did not provide a statement of meaning regarding the proposal. In its petition, the Union merely sets forth the language of a number of provisions of the parties' Negotiated Master Agreement.(2) As relevant here, Article 4 of the Negotiated Master Agreement provides:

Section 2. Nothing in this Article shall preclude the EMPLOYER and the UNION from negotiating:

(a) pursuant to Executive Order 12871, on the numbers, types and grade [sic] of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(b) procedures which management officials of the Agency will observe in exercising any authority under this Article; or

(c) appropriate arrangements for employees adversely affected by the exercise of any authority under this Article by such management officials.

Petition for Review at 2. The Union then asserts that "[t]he Agency Declaration of Non-Negotiability of staffing" is inconsistent with Excecutive Order 12,871, and makes no further arguments. Id.

B.The Agency (3)

1.Section 1

The Agency asserts, as relevant here, that Section 1 of the proposal requires it to convert part-time employees to full-time positions after 3 years, without regard to the part-time employees' qualifications, and "without regard to whether a vacant full-time position exists or whether management has made a determination to fill a full-time position." Statement of Position at 2. Thus, according to the Agency, Section 1 directly interferes with its rights to hire employees and to select from any appropriate source under sections 7106(a)(2)(A) and 7106(a)(2)(C) of the Statute, respectively, and it does not constitute a negotiable procedure within the meaning of section 7106(b)(2).

2.Section 3

The Agency argues that the percentage requirements set forth in Section 3 of the proposal include supervisory and managerial personnel, rather than applying solely to bargaining unit employees. Thus, the Agency claims that Section 3 is outside the duty to bargain "because it directly implicates supervisory and managerial personnel by regulating their terms and conditions of employment." Id. at 4. Additionally, the Agency contends that Section 3 directly interferes with management's right to determine its organization under section 7106(a)(1), because Section 3 "requires the Agency to structure its organization in accordance with the percentages dictated without regard to the Agency's operational needs[.]" Id. at 3.

3.Sections 1 and 3 (Combined Argument)

According to the Agency, "[e]ach commissary . . . is an organization in and of itself and is sub-divided within that organization into departments[,]" and the proposal "in effect, is trying to change the commissary store into a sub-unit within the Agency and define how this sub-unit will be staffed." Id. Because the proposal interferes with its "right to determine the personnel by which its operations will be conducted[,]" and "enables employees to choose their employment status without regard to the Agency's operational needs[,]" the Agency contends that the proposal violates its right to determine the organization of the Agency under section 7106(a)(1). Id.

IV.Meaning of the Proposal

Section 1 of the proposal states that when a part-time employee has worked for 3 years at a commissary, that part-time employee "will be converted to a full-time position." The wording of the proposal is silent as to whether this conversion would occur without regard to the employee's qualifications for the full-time position. The proposal's wording also does not indicate whether management would be required to create a new position for the part-time employee after 3 years, or whether management could wait to convert that employee until a vacancy becomes available. Thus, it is unclear how Section 1 would operate in practice.

Section 3 of the proposal states that each commissary staff shall consist of 70% regular full-time employees, 25% regular part-time employees,