National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Eastern Region, Virginia Beach, Virginia (Authority decision, April 28, 1999)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NAGE Local R4-45 proposed that a Defense Commissary Agency store staff its sales checkers with fixed percentages of full-time, part-time, and intermittent employees. The Authority treated the proposal as affecting management's right to determine its organization. The union offered only a brief reference to an executive order and did not explain why the proposal fell within a statutory bargaining category. The Authority dismissed the negotiability petition without deciding the agency's separate claim that the collective bargaining agreement already covered the issue. Member Wasserman concurred in dismissal but would have found the proposal electively negotiable under the provision on staffing numbers and types.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. §§ 7105(a)(2)(E) and 7106.
• Outcome: Petition for review dismissed; no bargaining order issued.
• Key point: The majority required the union to support its claim that the fixed staffing percentages were bargainable under 5 U.S.C. § 7106(b)(1).

Full text (FLRA public release)

[ v55 p370 ]

55 FLRA No. 61

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-45

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

EASTERN REGION

VIRGINIA BEACH, VIRGINIA

(Agency)

0-NG-2447

_____

DECISION AND ORDER

ON A NEGOTIABILITY ISSUE

April 28, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of one proposal prescribing the ratio of full-time, part-time, and intermittent personnel in the Agency's commissary. The Agency filed a Statement of Position. The Union did not file a Response. For the reasons that follow, we dismiss the Union's petition for review.

II. Background

The Agency employs part-time checkers in its commissary, some of whom work irregular schedules. [n2] The Agency agreed to test operating its commissary with part-time checkers on regular schedules only. Subsequently, the Union notified the Agency of its desire to bargain over the reinstitution of irregular schedules. In this regard, the Union proposed that specific percentages of full-time, part-time, and intermittent checkers be used to perform the checking function at the commissary.

III. Proposal [n3]

Commissary shall staff the Sales Store Checkers with 50% regular full-time employees, 45% regular part-time employees and 5% intermittent employees.

IV. Positions of the Parties

A. Agency

As a threshold matter, the Agency argues that the petition for review should be dismissed under section 2424.4 of the Authority's Regulations because the Union "failed to provide an explicit statement of the meaning attributed to the proposal[.]" Statement of Position at 1.

The Agency states that the proposal is outside the duty to bargain because it is covered by or contained in Article 35 of the parties' master agreement. [n4]

The Agency also argues that the proposal "excessively interferes" with the Agency's right to determine its organization under section 7106(a)(1) of the Statute. Id. at 3. In particular, the Agency claims that the proposal "requires the Agency to structure its organization in accordance with the percentages dictated without regard to the Agency's operational needs." Id. at 3-4.

Finally, the Agency contends that the proposal is not electively negotiable under section 7106(b)(1) because it does not concern the numbers, types and grades of employees or positions assigned to an organizational subdivision, work project or tour of duty. [ v55 p371 ]

B. Union

As noted above, the Union did not file a response in this case. In its petition for review, the Union states that its "staffing proposal" was submitted pursuant to three provisions of the parties' agreement.

Those provisions, quoted in the petition for review, are: (1) the Preamble; (2) the provision entitled "Provision of Law and Regulation"; and (3) Article 4, entitled "Employer Rights." [n5] The Union's argument, in its entirety, is:

The Agency declaration of Non-Negotiability of staffing is [inconsistent with] Executive Order 12871.

Petition for Review at 2.

V. Analysis and Conclusions

A. Meaning of the Proposal

By its plain language, the proposal prescribes the percentages of regular full-time, regular part-time, and intermittent checkers that will staff the commissary. [n6]

B. Whether the Proposal is Covered By the Parties'Collective Bargaining Agreement

Under the Authority's Regulations applicable to this case, the Authority will not determine, in the context of a negotiability appeal, whether a proposal is outside the duty to bargain because it is covered by the parties' agreement. See American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 175-76 (1998) (HUD). Consequently, we decline to resolve in this proceeding the Agency's duty to bargain claim.

C. The Proposal Affects Management's Right to Determine its Organization Under Section 7106(a)(1) of the Statute

In HUD, the Authority clarified the approach it will follow in resolving negotiability disputes where parties disagree as to whether a proposal comes within the terms of section 7106(a) or section 7106(b). Where an agency claims that a proposal affects a management right under section 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under section 7106(b)(2) and/or (3), as well as being electively negotiable under section 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 54 FLRA 521, 526-28 (1998) (VAMC, Newington).

Because the Union does not dispute the Agency's contention that the proposal affects management's right to determine its organization under section 7106(a)(1), we analyze below whether a claim has been raised and established that the proposal is within the duty to bargain under section 7106(b). [n7] Id.

D. The Proposal is Not Bargainable Under Section 7106(b)

The Union makes no assertion that the proposal is either permissively or mandatorily bargainable under section 7106(b). Instead, as noted above, the Union's sole argument is that the "Agency [d]eclaration of Non-Negotiability of staffing is [inconsistent with] Executive Order 12871." Petition for Review at 2. Assuming that this argument is intended to assert that the proposal is bargainable at the Agency's election under section 7106(b)(1), the Union makes no attempt to explain whether or how the proposal concerns a matter within that section. In this regard, insofar as the Union's reference to the Executive Order can be construed to constitute an assertion under section 7106(b)(1) at all, Authority precedent requires a conclusion that it is a [ v55 p372 ] bare assertion and, as such, cannot support a conclusion that the proposal concerns a matter under section 7106(b)(1). [n8] See VAMC, Newington, 54 FLRA at 528; American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center, and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 610 (1997); National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 526, 530-31 (1997). Accordingly, the petition for review in this case must be dismissed. See VAMC, Newington, 54 FLRA at 528.

VI. Order

The petition for review is dismissed.

APPENDIX

1. The Preamble provides as follows:

In accordance with Title VII of Public Law 95-454, (the Civil Service Reform Act of 1978) and subject to all applicable Statutes, Executive Orders and regulations, this Collective Bargaining Agreement is entered into between the Defense Commissary Agency, hereinafter referred to as the Employer or as the Agency, and the National Association of Government Employees, hereinafter referred to as the Union, and hereinafter collectively referred to as the Parties.

2. The provision entitled "Provision of Law and Regulations" provides as follows:

In 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; published and regulations in existence at the time this Agreement was approved; and by subsequently published Agency policies and regulations required by law, Executive Order or by regulations of appropriate authorities.

3. Article 4, entitled "Employer Rights," provides, in relevant part, as follows:

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.

File 1: Authority's Decision in 55 FLRA No.
61

File 2: Opinion of Member Wasserman

Footnote # 1 for
55 FLRA No. 61

• Authority's Decision

Member Wasserman's concurring opinion appears at the end of this decision.

Footnote # 2 for
55 FLRA No. 61

• Authority's Decision

The record does not contain an explanation of the duties of a checker. Presumably, they are the employees who run the cash registers.

Footnote # 3 for
55 FLRA No. 61

• Authority's Decision

The Agency notes that the proposal originally provided a ratio that was slightly different -- 50% full-time employees, 40% part-time employees and 5% intermittent employees. However, the Agency does not object to the change in the proposal as appealed to the Authority and that change does not affect the issues presented by the proposal.

Footnote # 4 for
55 FLRA No. 61

• Authority's Decision

The relevant provisions of Article 35 cited by the Agency are:

Section 2 - that the basic workweek of part-time employees consist of 16 to 32 hours, regular or irregular schedule through the administrative workweek.

Section 5 - Employee's [sic] work schedules will be posted one (1) week in advance of the administrative workweek. The regularly scheduled hours of work for part-time employees will be scheduled as far in advance as practicable. Schedules are subject to change depending upon the operational needs of the Employer. However, the Employer will make every reasonable effort to avoid changes to scheduled work hours.

Statement of Position at 3 (emphasis omitted).

Footnote # 5 for
55 FLRA No. 61

• Authority's Decision

The three provisions, as quoted in the Union's petition, are set forth in the Appendix to this decision.

Footnote # 6 for
55 FLRA No. 61

• Authority's Decision

Because the proposal, on its face, only prescribes the ratio of full-time, part-time, and intermittent checkers at a specific commissary, it is distinguishable from the proposal at issue in National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, 54 FLRA 669 (1998). We find that the proposal is sufficiently clear so as to permit us to determine whether it is within the duty to bargain. Thus, we reject the Agency's argument that the petition for review should be dismissed under section 2424.4 of the Authority's Regulations.

Footnote # 7 for
55 FLRA No. 61

• Authority's Decision

Our determination in this regard is based solely on the Union's concession. We do not necessarily adopt the Agency's interpretation of management's right to determine its organization under section 7106(a)(1) and its application to the proposal in this case.

Footnote # 8 for
55 FLRA No. 61

• Authority's Decision

Our concurring colleague finds that the Union's description of the proposal as a staffing matter squarely presents the issue of whether the proposal concerns the numbers, types, and grades of employees, within the meaning of section 7106(b)(1). We disagree for the reasons stated above, and find no basis in the precedent relied on in the concurrence for so expansively construing the Union's use of the word. Nor do we view the Agency's unrefuted response that the proposal does not concern "types" of employees as a basis for finding that the proposal concerns "numbers" of employees.

[ 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.