File 2: Opinions of Chairman Wasserman and Member Segal

[ v56 p36 ]

Concurring Opinion of Chairman Wasserman

      I agree with most of the conclusions reached concerning the proposals and parts thereof and, ultimately, that the petition for review must be dismissed. I write separately to explain my differing views concerning the application of section 7106(b)(1) to Proposal 2(a) and Proposal 3(a).

      Under section 7106(b)(1) of the Statute, proposals relating to the "numbers, types, and grades of employees or positions assigned to any organizational subdivision" are negotiable at the election of the agency. This phrase applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030 (1997). The determination of whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff. See National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 432 (1997).

      Proposal 2(a) would require the Agency to transfer certain employees from one organizational section to another. On its face, this proposal concerns the allocation of staff. As such, I would find that Proposal 2(a) is electively bargainable under section 7106(b)(1).

      The first part of Proposal 3(a) would require the Agency to transfer a certain number of supply technicians from one organizational section to another. Like Proposal 2(a), this part of Proposal 3(a) concerns the allocation of staff. However, since the remainder of Proposal 3(a) concerns a classification matter and there is no request to sever and separately consider the various portions of the section, I concur in the result that Proposal 3(a) is outside the duty to bargain. [n1] 

Opinion of Member Segal, concurring in part and dissenting in part

      I write separately because, in my view, the record in this case is insufficient for the Authority to make any negotiability determination regarding Proposals 1, 2(a), 2(d), and 3(b).

      The majority states that the Agency "essentially" argues that these proposals affect its management rights to determine its organization, to assign employees, and to assign work. In fact, the Agency argues, simply and solely, that these proposals violate "a 7106(a) reserved management right." Statement of Position at 1, 2 (emphasis added). The Agency makes no attempt to explain which right is affected, or how the proposals affect the right. By the same token, the Union makes no arguments as to why these proposals are within the Agency's duty to bargain. As a result, I would find the record as to these proposals insufficient to make a negotiability determination, and I would dismiss the Union's petition for review without resolving whether Proposal 1, 2(d), and 3(b) are within the Agency's duty to bargain. See American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1507 (1997).

      Although I would dismiss Proposal 2(a) on this ground as well, I join with Member Cabaniss in reaching the merits of the Union's section 7106(b)(1) claim concerning Proposal 2(a), in order to avoid an impasse in the Authority's disposition of the Union's petition. See Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 552 (1987) (Opinion of Chairman Calhoun), petition for review granted as to other matters sub nom. Fort Bragg Association of Educators v. FLRA, 870 F.2d 698 (D.C. Cir. 1989). See also, e.g., Public Service Commission v. Federal Power Commission, 543 F.2d 757, 777 (D.C. Cir. 1974) (court stated that Federal "[c]ommissioners, no less than judges, may cast their votes solely to void an impasse"). Reaching the merits only for this reason, I agree with Member Cabaniss that the Union has made an insufficient claim under Section 7106(b)(1) and that, therefore, Proposal 2(a) is outside the duty to bargain.

      In addition, while I agree with my colleagues that Proposal 2(b), 2(c), and 3(a) are outside the duty to bargain because they concern the classification of positions, within the meaning of 7103(a)(14)(B), I do so, in part, because these proposals are distinguishable from the proposal at issue in National Association of Government [ v56 p37 ] Employees, Local R3-76 and U.S. Department of Defense, Defense Logistics Agency, Defense Automated Printing Service, Philadelphia, Pennsylvania, 55 FLRA 509 (1999) (DLA) (Member Cabaniss dissenting). The proposal in that case established a staffing pattern -- specifying the number and grades of positions -- for particular agency operations. The proposal did not, however, "require the [a]gency to classify, or reclassify, particular existing positions, and [did] not require the placement of incumbent employees into the positions established in the proposal." Id. at 511.

      In this case, by contrast, it is clear that the Union seeks to reclassify existing positions. In particular, Proposals 2(b) and 2(c) would reclassify the three positions affected by the Agency reorganization at the GS-6/7 level, and Proposal 3(a) would reassign two incumbents to the reclassified positions. Based on the wording of the proposals, as drafted by the Union, and the record as a whole (particularly the attached Agency memoranda, dated April 3, 1998, and October 16, 1998, to the Agency's statement of position), the effect of the proposals would be to reclassify one GS-6 and two GS-5 positions at the GS-6/7 level, and reassign the incumbents of the existing GS-5 positions to the reclassified positions. As such, unlike the proposal in DLA, Proposals 2(b), 2(c), and 3(a) would require both the reclassification of existing positions and the placement of incumbent employees into them. Accordingly, they are distinguishable from the proposal in DLA.

File 1: Authority's Decision in 56 FLRA No. 3
File 2: Opinions of Chairman Wasserman and Member Segal

Footnote # 1 for 56 FLRA No. 3 - Opinion of Chairman Wasserman

   With regard to the portion of Proposal 3(a) concerning classification, as well as Proposals 2(b) and 2(c) which also concern classification, I agree with Member S