File 2: Opinion of Member Wasserman
[ v55 p373 ]
Concurring Opinion of Member Wasserman
I agree with the conclusions reached in Part V, subparts A through C of the majority opinion.
Where I disagree with my colleagues, however, is their finding that Authority precedent requires a conclusion that the Union's section 7106(b)(1) claim is a "bare assertion" and cannot support a conclusion that the proposal concerns a section 7106(b)(1) matter. Authority precedent holds that a union's claim that a proposal is within the duty to bargain under that section will not be addressed when the union fails to offer any argument or authority to support its claim and it is not otherwise apparent that the proposal concerns a section 7106(b)(1) matter. See National Association of Government Employees, Local R1-109 and Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 403, 408 (1997). See also National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 54 FLRA 521, 528 (1998) (Authority dismissed petition for review where the union offered no basis for finding that its proposals concerned a matter falling within section 7106(b)(1) and it was not otherwise apparent from the record that the proposals concerned such a matter). As the court found in U.S. Department of Transportation, Federal Aviation Administration v. FLRA, 145 F.3d 1425, 1428 (D.C. Cir. 1998), where an argument is "squarely presented" the Authority should consider it. I believe that the issue of whether the proposal is bargainable under section 7106(b)(1) has squarely been presented. [n1]
In its petition for review in this case, the Union described its proposal as a "staffing" matter under Executive Order 12,871 and quoted the portions of the parties' agreement in which they agreed to bargain on the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty. The Union's use of the word "staffing" is consistent with the legislative history and our interpretation of section 7106(b)(1) as referring to "staffing patterns" or the "allocation of staff." National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030-31 (1997). Indeed, it is obvious, to me, given the genesis of the proposal, that it was designed to address the staffing situation among store cashiers. In particular, the Union advised management of its view that work scheduling problems were caused by "the excessive amount of part-time employees and not enough full-time cashiers." Petition for Review, Attachment 1 at 1. For this reason, the Union proposed that "the sales store checker work force" be staffed based on certain percentages of full-time, part-time, and intermittent checkers. Id. Although my colleagues do not view the Union's description of the proposal and the record in this case as shedding light on whether the proposal can be construed under section 7106(b)(1), the Agency had no difficulty construing it in this manner. The Agency clearly understood the Union's position since it responded, in some detail, to the Union's assertion. I question, then, how we can reasonably fail to construe the proposal as involving a matter under section 7106(b)(1).
Furthermore, I would find that the record supports a determination that the proposal is electively negotiable under section 7106(b)(1) because it concerns the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" As noted above, the proposal would establish certain percentages of full-time, part-time and intermittent employees, classified as sales store checkers, who would staff the commissary. Whatever the total complement of employees that management decides it needs in order to cover the checker function, application of the proposal would result in a certain "number" of checkers assigned to full-time, part-time or intermittent schedules. See American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1007 (1982) (proposal requiring assignment of "ample" personnel a section 7106(b)(1) matter). As to whether the proposal concerns "employees or positions," it is clear and undisputed that the proposal satisfies this requirement of section 7106(b)(1). Finally, the Authority previously has found that a commissary is an "organizational subdivision" within the meaning of section 7106(b)(1) of the Statute. I would make that same finding here. See, e.g., National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 54 FLRA 1302, 1306 (1998), petition for review filed sub nom. National Association of Government Employees, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Nov. 6, 1998).
In sum, I would find that the proposal is electively negotiable under the Statute. Consistent with section 2424.10(b) of the Authority's Regulations, I would dismiss the petition for review. [n2]
File 1: Authority's Decision in 55 FLRA No. 61
File 2: Opinion of Member Wasserman
Footnote # 1 for 55 FLRA No. 61 - Opinion of Member Wasserman
The precedent cited by my colleagues is distinguishable. In those cases, the unions did not offer any argument or authority in support of their claims that the proposals were bargainable matters under section 7106(b)(1) of the Statute and there was no other basis in the record for making that determination.
Footnote # 2 for 55 FLRA No. 61 - Opinion of Member Wasserman
Since this case arose in a negotiability appeal, dismissal of the petition for review is required by the Authority's Regulations that were in effect when the appeal was filed, despite the fact that the parties contractually agreed to bargain over section 7106(b)(1) matters.