American Federation of Government Employees, AFL-CIO, Local 1786 (Union) and Marine Corps Development and Education Command, Quantico, Virginia (Activity) (Authority decision, January 17, 1980)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. 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

AFGE Local 1786 negotiated a provision giving union members places on teams collecting local wage data for certain nonappropriated fund employees at Quantico. The Marine Corps disapproved it, arguing that management could choose the personnel conducting its operations. The Authority held that union participation on the survey teams would not limit management's choice of its own representatives. It set aside the agency's nonnegotiability allegation, leaving the provision within the duty to bargain without judging its merits.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(a)(2)(B) and 5343(c)(2).
• Outcome: Agency nonnegotiability allegation set aside; union survey team provision held negotiable.
• Key point: Union representation on an existing wage survey team did not control the agency's selection of its own personnel.

Full text (FLRA public release)

[ v02 p423 ]

02:0423(58)NG

The decision of the Authority follows:

2 FLRA No. 58

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1786
(Union)

and

MARINE CORPS DEVELOPMENT AND EDUCATION
COMMAND, QUANTICO, VIRGINIA
(Activity)

Case No. 0-NG-4

DECISION ON NEGOTIABILITY ISSUE

PROVISION /1/

(ARTICLE XVIII) SECTION 3. DATA FOR THE ADMINISTRATIVE SUPPORT AND
PATRON SERVICES SURVEYS WILL BE COLLECTED BY JOINT UNION-MANAGEMENT
TEAMS, AS IS CRAFTS AND TRADES DATA, AND WILL BE PRESENTED TO THE LOCAL
WAGE SURVEY COMMITTEE.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE DISPUTED PROVISION OF THE PARTIES'
LOCALLY NEGOTIATED AGREEMENT VIOLATES SECTION 7106(A)(2)(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR) STATUTE, /2/ AS
ALLEGED BY THE AGENCY.

OPINION

CONCLUSION: THE PROVISION DOES NOT VIOLATE SECTION 7106(A)(2)(B) OF
THE STATUTE. THUS, THE AGENCY'S ALLEGATION THAT THE PROVISION IS NOT
WITHIN THE DUTY TO BARGAIN WAS IMPROPER AND, PURSUANT TO SECTION 2424.8
OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44,740 ET
SEQ.(1979)), IS SET ASIDE. /3/

REASONS: THE PROVISION HERE IN DISPUTE WOULD ESTABLISH A UNION RIGHT
TO REPRESENTATION ON WAGE SURVEY TEAMS WHICH GATHER LOCAL PREVAILING
WAGE DATE FOR USE IN DETERMINING THE PAY OF CERTAIN HOURLY-PAID
NONAPPROPRIATED FUND (NAF) EMPLOYEES.

HOURLY-PAID NAF EMPLOYEES ARE GROUPED INTO THREE JOB CLASSIFICATIONS
AS FOLLOWS: /4/ CRAFTS AND TRADES (CT) WORKERS SUCH AS COOKS,
ELECTRICIANS, JANITORS, PLUMBERS, AND WAREHOUSEMEN; ADMINISTRATIVE
SUPPORT (AS) EMPLOYEES SUCH AS RECEPTIONISTS, SECRETARIES, AND AUDIT,
FILE, OR PAYROLL CLERKS; AND PATROL SERVICE (PS) EMPLOYEES SUCH AS
CASHIER-CHECKERS, CUSTOMER SERVICE CLERKS, SALES CLERKS AND TICKET
SELLERS. ALTHOUGH SUCH NAF EMPLOYEES ARE EXCEPTED GENERALLY FROM LAW
ADMINISTERED BY THE OFFICE OF PERSONNEL MANAGEMENT, /5/ THE PROVISIONS
OF TITLE 5 U.S.C. CONCERNING THE DETERMINATION OF PAY FOR HOURLY-PAID
EMPLOYEES OF THE FEDERAL GOVERNMENT (I.E., 5 U.S.C. SEC. 5341 ET SEQ.)
SPECIFICALLY APPLY TO NAF CT EMPLOYEES. /6/ THESE STATUTORY PAY SETTING
PROCEDURES AND THE IMPLEMENTING REGULATIONS CONTAINED IN FEDERAL
PERSONNEL MANUAL SUPPLEMENT 532-2 ESTABLISH THAT THE PAY OF HOURLY-PAID
PERSONNEL, INCLUDING NAF CT EMPLOYEES, WILL BE DETERMINED THROUGH THE
USE OF LOCAL WAGE SURVEYS OF LIKE PRIVATE SECTOR JOBS. FURTHER, THE
STATUTE AND REGULATIONS SPECIFICALLY PROVIDE THAT UNIONS REPRESENTING
SUCH HOURLY-PAID EMPLOYEES WILL PARTICIPATE AT EVERY STAGE OF THE PAY
DETERMINATION PROCESS INCLUDING REPRESENTATION ON LOCAL WAGE SURVEY
TEAMS. /7/

THE DEPARTMENT OF DEFENSE HAS ADMINISTRATIVELY EXTENDED CERTAIN OF
THE PRINCIPLES OF THE STATUTORY PAY SETTING PROCEDURES APPLICABLE TO CT
EMPLOYEES, SUCH AS, FOR EXAMPLE, THE USE OF LOCAL WAGE SURVEYS OF LIKE
PRIVATE SECTOR JOBS, TO AS AND PS EMPLOYEES. HOWEVER, CERTAIN STATUTORY
ENTITLEMENTS GRANTED TO UNIONS REPRESENTING CT EMPLOYEES, I.E., AS
RELEVANT IN THIS CASE, THE RIGHT TO REPRESENTATION ON LOCAL WAGE SURVEY
TEAMS, WERE NOT ADMINISTRATIVELY EXTENDED TO UNIONS REPRESENTING AS AND
PS EMPLOYEES. AS A RESULT, A UNION REPRESENTING CT, AS AND PS EMPLOYEES
IN ONE BARGAINING UNIT WOULD HAVE A STATUTORY RIGHT TO REPRESENTATION ON
LOCAL WAGE SURVEY TEAMS GATHERING WAGE DATA TO BE USED IN DETERMINING
THE PAY OF CT EMPLOYEES BUT NO SIMILAR RIGHT TO REPRESENTATION ON OTHER
WAGE SURVEY TEAMS GATHERING WAGE DATA TO BE USED IN DETERMINING THE PAY
OF AS AND PS EMPLOYEES.

THE AGENCY CONTENDS, IN THIS CASE, THAT THE DETERMINATION OF PAY OF
AS AND PS EMPLOYEES CONSTITUTES AN OPERATION OF THE AGENCY AND THUS, THE
RIGHT TO DETERMINE THE PERSONNEL BY WHICH THAT OPERATION IS CONDUCTED,
INCLUDING THE PORTION CONCERNING THE COLLECTION OF LOCAL PREVAILING WAGE
DATA, IS SPECIFICALLY RESERVED TO AGENCY MANAGEMENT BY SECTION
7106(A)(2)(B) OF THE STATUTE.

THE AGENCY POSITION LACKS MERIT. IT IS CLEAR THAT THE COLLECTION BY
THE WAGE SURVEY TEAMS OF LOCAL PREVAILING WAGE DATA IS AN ESSENTIAL PART
OF THE PROCESS FOR DETERMINING THE PAY OF AS AND PA EMPLOYEES AND
DIRECTLY AFFECTS THE WORKING CONDITIONS OF SUCH EMPLOYEES. FURTHER,
IRRESPECTIVE OF WHETHER THE USE OF SUCH WAGE SURVEY TEAMS CONSTITUTES A
PART OF THE OPERATION OF THE AGENCY OR IS A PROCEDURE BY WHICH THE PAY
DETERMINATION OPERATION IS CARRIED OUT, NOTHING IN THE DISPUTED
PROVISION WOULD INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE THE
PERSONNEL WHO WILL REPRESENT THE AGENCY'S INTERESTS ON SUCH WAGE SURVEY
TEAMS. THE UNION'S PROVISION MERELY PROVIDES THAT THERE WILL BE UNION
REPRESENTATION ON SUCH ALREADY ESTABLISHED WAGE SURVEY TEAMS. MOREOVER,
THE DISPUTED PROVISION IS ENTIRELY CONSISTENT WITH THE PUBLIC POLICY AS
EXPRESSED BY CONGRESS IN 5 U.S.C. 5343(C)(2), OF PROVIDING LABOR
ORGANIZATIONS A DIRECT ROLE IN THE DETERMINATION OF PAY FOR CERTAIN
HOURLY-PAID EMPLOYEES OF THE FEDERAL GOVERNMENT.

IN SUMMARY, THE AGENCY HAS NOT DEMONSTRATED THAT THE DISPUTED
PROVISION, WITHIN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, WOULD
INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE THE PERSONNEL BY WHICH AN
AGENCY OPERATION IS CARRIED OUT.

THEREFORE, THE PROVISION AT ISSUE CONCERNS A MATTER WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION
TO THE CONTRARY IS SET ASIDE.

ISSUED, WASHINGTON, D.C., JANUARY 17, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE PARTIES NEGOTIATED THE DISPUTED PROVISION AS PART OF THEIR
LOCAL COLLECTIVE BARGAINING AGREEMENT. DURING THE REVIEW PROCESS
PURSUANT TO SECTION 15 OF EXECUTIVE ORDER 11491, AS AMENDED, THE AGENCY
DISAPPROVED THE PROVISION. THE PARTIES SUBSEQUENTLY NEGOTIATED A
MEMORANDUM OF UNDERSTANDING IN WHICH THEY AGREED TO DELETE THE DISPUTED
PROVISION FROM THE COLLECTIVE BARGAINING AGREEMENT AND IN WHICH THE
ACTIVITY AGREED TO REOPEN THE CONTRACT TO NEGOTIATE THE PROVISION IF THE
AUTHORITY WERE TO FIND IT TO BE WITHIN THE DUTY TO BARGAIN.

/2/ SECTION 7106(A)(2)(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 7106. MANAGEMENT RIGHTS

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY --

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

(B) . . . TO DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL
BE CONDUCTED.

/3/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROVISION.

/4/ SEE DEPARTMENT OF DEFENSE (DOD) MANUAL 1401.1-M, PERSONNEL POLICY
MANUAL FOR NONAPPROPRIATED FUND INSTRUMENTALITIES, CHAP. III AND
APPENDIX B(1978).

/5/ 5 U.S.C. SEC. 2105(C).

/6/ 5 U.S.C. SEC. 5342(A)(2)(C).

/7/ SEE, E.G., 5 U.S.C. SEC. 5343(C)(2) AND FEDERAL PERSONNEL MANUAL
SUPP. 532-2, SUBCHAPTERS S3-3.B AND S5-6.E.(B).