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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, and 5% intermittent employees. The proposal is silent as to what actions, if any, the Agency would be required to take in order to come into compliance with these percentages (or to stay in compliance, if the commissaries currently meet the percentages). Additionally, the proposal does not specify whether the percentages apply only to bargaining unit employees at the commissaries, or whether they also apply to supervisory and managerial personnel. It is also unclear whether the Agency would be required to make modifications in non-bargaining unit employees' positions in order to meet changes in the percentages caused by attrition, new hires, and the like. Thus, it is unclear how Section 3 would operate in practice.

Moreover, the record is unclear as to how Section 1 of the proposal would operate in conjunction with Section 3. After 3 years, Section 1 would require the Agency to convert a part-time employee into a full-time employee. This could increase the percentage of regular full-time employees at the commissary. If it did, it is unclear whether the Agency would then be required to lay off existing full-time employees, hire additional regular part-time and intermittent employees, or convert some existing full-time employees into part-time or intermittent positions. Thus, it is unclear how Sections 1 and 3 would operate together in practice.

Therefore, the record is insufficient for us to make a negotiability determination regarding either Section 1 or Section 3 of the proposal. Accordingly, we dismiss the petition for review. See, e.g., National Federation of Federal Employees, Forest Service Council, Region 8 and U.S. Department of Agriculture, Forest Service, 49 FLRA 970, 972 (1994).


The petition for review is dismissed.

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

1. Article 4, Section 2 of the proposal, stating that "[a]t the employees option, an intermittent employee will be converted to a regular part-time position within one year[,]" was withdrawn. Statement of Position at 1.

2. The Union sets forth the language of the Preamble to the parties' Negotiated Master Agreement, as well as the language of the section entitled "Provision of Law and Regulations." Petition for Review at 2. The Preamble provides, in pertinent part, that the Agreement is "subject to all applicable Statutes, Executive Orders and regulations[.]" Id. The section entitled "Provision of Law and Regulations" provides, in pertinent part, that "[i]n the administration of all matters covered by this Agreement, officials and employees are governed by existing or future laws, Executive Orders and regulations of appropriate authorities[.]" Id.

3. Although all of the Agency's arguments address "[t]he proposal," see, e.g., Statement of Position at 3 ("[t]he proposal is outside the duty to bargain"), with the exception of its arguments regarding the right to determine organization, some of the Agency's arguments address only Section 1 of the proposal, while other arguments address only Section 3.