Service Employees International Union Local 556 and Hale Koa Hotel (Authority decision, August 3, 1982)

Final FLRA decision. This is a final Authority order. 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

After the Hale Koa Hotel moved to a separate Army office and bargaining unit, its union proposed a reduction-in-force competitive area that would also cover employees in another unit. The Authority held that the proposal could displace workers outside the union’s representation and therefore exceeded the employer’s duty to bargain. It dismissed the petition on the merits.

Decision snapshot

• Authority: 5 U.S.C. § 7114(a)(4).
• Outcome: Cross-unit competitive-area proposal held nonnegotiable.
• Key point: A union could not set employment conditions for another bargaining unit.

Full text (FLRA public release)

[ v09 p687 ]

09:0687(81)NG

The decision of the Authority follows:

9 FLRA No. 81

SERVICE EMPLOYEES' INTERNATIONAL
UNION, AFL-CIO, LOCAL 556
Union

and

DEPARTMENT OF THE ARMY,
OFFICE OF THE ADJUTANT GENERAL,
HALE KOA HOTEL, HONOLULU, HAWAII
Agency

Case No. O-NG-306

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE). UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.

PRIOR TO A REORGANIZATION, THE HALE KOA HOTEL WAS PART OF THE U.S.
ARMY SUPPORT COMMAND, HAWAII (USASCH). UNDER A REORGANIZATION, THE HALE
KOA HOTEL AND ITS EMPLOYEES WERE TRANSFERRED ADMINISTRATIVELY FROM THE
CONTROL AND SUPERVISION OF THE COMMANDER, USASCH TO THE OFFICE OF THE
ADJUTANT GENERAL (THE AGENCY). SUBSEQUENT TO THE REORGANIZATION, THE
UNION PETITIONED TO BE AND WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE
OF A NEW AND SEPARATE UNIT COMPRISED ONLY OF HALE KOA HOTEL EMPLOYEES.
(CASE NO. 8-RO-17). /1/

FURTHER, AS A RESULT OF THE REORGANIZATION, USASCH DETERMINED THAT
THE EMPLOYEES OF THE HALE KOA HOTEL WERE NO LONGER IN THE USASCH
COMPETITIVE AREA FOR REDUCTION-IN-FORCE (RIF) PURPOSES. THE UNION
THEREUPON FILED AN UNFAIR LABOR PRACTICE CHARGE (CASE NO. 8-CA-352),
ALLEGING THAT THE USASCH HAD VIOLATED SECTION 7116(A)(1) AND (5) OF THE
STATUTE BY CHANGING THE ESTABLISHED COMPETITIVE AREA UNILATERALLY AND
WITHOUT CONSULTATION IN THIS REGARD. THE REGIONAL DIRECTOR FOR REGION 8
DISMISSED THE CHARGE, HOLDING THAT THE HALE KOA EMPLOYEES WERE NO LONGER
EMPLOYEES OF THE USASCH AND HELD THAT THE USASCH NO LONGER WAS UNDER ANY
OBLIGATION TO INCLUDE THE HALE KOA EMPLOYEES IN ITS COMPETITIVE AREA FOR
RIF PURPOSES, AS THEY WERE NOW UNDER THE JURISDICTION OF THE ADJUTANT
GENERAL'S OFFICE. THE UNION'S SUBSEQUENT APPEAL TO THE GENERAL COUNSEL
WAS DENIED.

THE UNION THEN SUBMITTED TO THE AGENCY THE BARGAINING PROPOSAL HERE
IN DISPUTE, TO REESTABLISH A COMPETITIVE AREA FOR RIF PURPOSES COVERING
BOTH THE AGENCY'S EMPLOYEES AND EMPLOYEES OF USASCH INSTALLATIONS. (THE
TEXT OF THE UNION'S PROPOSAL IS SET FORTH IN THE APPENDIX.) THE
AUTHORITY CONCLUDES, FOR THE FOLLOWING REASONS WHICH ARE CONSISTENT WITH
THOSE OF THE REGIONAL DIRECTOR IN DISMISSING THE RELATED UNFAIR LABOR
PRACTICE CHARGE INVOLVING THE USASCH, THE INSTANT PROPOSAL IS NOT WITHIN
THE DUTY TO BARGAIN OF THE PRESENT EMPLOYER.

UNDER THE STATUTE, THE SCOPE OF THE OBLIGATION TO BARGAIN EXTENDS TO
MATTERS DIRECTLY AFFECTING THE CONDITIONS OF EMPLOYMENT OF EMPLOYEES IN
AN APPROPRIATE UNIT OF EXCLUSIVE RECOGNITION. NATIONAL COUNCIL OF FIELD
LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C., 3 FLRA 289 (1980); OVERSEAS
EDUCATION ASSOCIATION AND DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS
SCHOOLS, ALEXANDRIA, VIRGINIA, 7 FLRA NO. 11 (1981) AS CLARIFIED, JUNE
1, 1982. FURTHERMORE, A BARGAINING PROPOSAL WHICH DIRECTLY WOULD AFFECT
BARGAINING UNIT EMPLOYEES IN RELATION TO THE CONDITIONS OF EMPLOYMENT
WITHIN THE BARGAINING UNIT AND IS OTHERWISE CONSISTENT WITH APPLICABLE
LAWS AND REGULATIONS, WOULD BE WITHIN THE DUTY TO BARGAIN DESPITE THE
FACT THAT IT ALSO WOULD AFFECT NONUNIT EMPLOYEES WITH RESPECT TO SUCH
CONDITIONS OF EMPLOYMENT. NATIONAL TREASURY EMPLOYEES UNION AND
INTERNAL REVENUE SERVICE, 7 FLRA NO. 42 (1981) (PROPOSED PROCEDURES FOR
FILLING POSITIONS WITHIN THE BARGAINING UNIT BY REASSIGNMENT OR TRANSFER
OF NON-BARGAINING UNIT EMPLOYEES HELD TO BE WITHIN THE DUTY TO BARGAIN).
HOWEVER, A UNION PROPOSAL CONCERNING MATTERS WHICH ARE TERMS AND
CONDITIONS OF THE BARGAINING UNIT'S EMPLOYMENT RELATIONSHIP WOULD BE
OUTSIDE THE DUTY TO BARGAIN TO THE EXTENT THE PROPOSAL ALSO WOULD
DETERMINE CONDITIONS OF EMPLOYMENT IN ANOTHER BARGAINING UNIT. SUCH A
PROPOSAL WOULD REACH BEYOND THE REPRESENTATION RIGHTS OF THE EXCLUSIVE
REPRESENTATIVE. NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT OF
LABOR, WASHINGTON, D.C., 3 FLRA 289 (1980) (PROPOSED PROCEDURES FOR
FILLING SUPERVISORY AND MANAGERIAL POSITIONS OUTSIDE THE BARGAINING UNIT
WITH UNIT EMPLOYEES ARE NOT WITHIN THE DUTY TO BARGAIN). /2/

THE PRESENT DISPUTED PROPOSAL WOULD ESTABLISH A COMPETITIVE AREA FOR
RIF PURPOSES WHICH WOULD INCLUDE BOTH BARGAINING UNIT EMPLOYEES AT THE
HALE KOA HOTEL AND EMPLOYEES IN ANOTHER UNIT OF EXCLUSIVE
REPRESENTATION. APPLICABLE REGULATIONS PROMULGATED BY THE OFFICE OF
PERSONNEL MANAGEMENT ESTABLISH CERTAIN MANDATORY PROCEDURES WHICH MUST
BE APPLIED THROUGHOUT A COMPETITIVE AREA IN A RIF. /3/ SINCE THE
PROPOSAL WOULD GIVE UNIT EMPLOYEES RIGHTS TO NONUNIT POSITIONS AND THUS
COULD RESULT IN NONUNIT EMPLOYEES BEING DISPLACED FROM THEIR PRESENT
EMPLOYMENT, THE PROPOSAL CLEARLY WOULD DETERMINE THE CONDITIONS OF
EMPLOYMENT OF NONUNIT EMPLOYEES IN THEIR CURRENT EMPLOYMENT
RELATIONSHIP. AS SUCH, THE PROPOSAL CONCERNS MATTERS BEYOND THE
REPRESENTATION RIGHTS OF THE UNION. THUS, PURSUANT TO SECTION
7114(A)(4) OF THE STATUTE, /4/ THE AGENCY HAS NO OBLIGATION TO BARGAIN
OVER THE UNION'S PROPOSAL IN THIS CASE.

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10 (1982)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THE DISPUTED PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 3, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

UNION PROPOSAL

SECTION 6. COMPETITIVE AREA IS DEFINED AS THE AREA IN WHICH
COMPETITION EXISTS IN RELATION TO A COMPETITIVE LEVEL. A COMPETITIVE
AREA CONSISTS OF ALL NONAPPROPRIATED FUND INSTRUMENTALITIES UNDER THE
JURISDICTION OF THE EMPLOYER. FOR THE PURPOSES OF REDUCTION IN FORCE,
THE COMPETITIVE AREAS FOR THE UNIT WILL BE IDENTIFIED AS FOLLOWS:

MINOR REDUCTION IN FORCE (30 OR LESS POSITIONS ABOLISHED OR REDUCED
IN CATEGORY AS A RESULT OF A SINGLE RIF ACTION).

AREA I ALL USASCH NAF ACTIVITIES IN THE HONOLULU AREA.

AREA II ALL USASCH NAF ACTIVITIES IN THE SCHOFIELD-WAIANAE AREA.

AREA III ALL USASCH NAF ACTIVITIES AT KILAUEA OUTDOOR RECREATION
CENTER.

AREA IV ALL USASCH NAF ACTIVITIES AT POHAKULOA TRAINING CAMP.

MAJOR REDUCTION IN FORCE (MORE THAN 30 POSITIONS ABOLISHED OR REDUCED
IN CATEGORY AS A RESULT OF A SINGLE RIF ACTION).

AREA I ALL USASCH NAF ACTIVITIES ON THE ISLAND OF OAHU.

AREA II ALL USASCH NAF ACTIVITIES AT KILAUEA OUTDOOR RECREATION
CENTER.

AREA III ALL USASCH NAF ACTIVITIES AT POHAKULOA TRAINING CAMP.

--------------- FOOTNOTES$ ---------------

/1/ THE UNIT WAS DEFINED AS INCLUDING "ALL NONAPPROPRIATED FUND
EMPLOYEES EMPLOYED BY THE DEPARTMENT OF THE ARMY ADJUTANT GENERAL'S
CENTER (TACCEN), HALE KOA HOTEL, HONOLULU, HAWAII" AND EXCLUDING "ALL
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES,
PERSONS PERFORMING FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND SUPERVISORS."

/2/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2 AND
DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA NO. 60
(1980) (PROPOSAL WHICH IS SEVERABLE WITH REGARD TO ITS EFFECT ON UNIT
AND NONUNIT EMPLOYEES, AND OTHERWISE IS CONSISTENT WITH APPLICABLE LAWS
AND REGULATIONS, IS WITHIN THE DUTY TO BARGAIN TO THE EXTENT THAT IT
AFFECTS UNIT EMPLOYEES).

/3/ 5 CFR PART 351 (1982). SEE ALSO INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, NASA HEADQUARTERS
PROFESSIONAL ASSOCIATION AND NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION, HEADQUARTERS, WASHINGTON, D.C., 8 FLRA NO. 46 (1982), IN
WHICH THE AUTHORITY EXAMINED AND EXPLAINED IN DETAIL THE MANNER IN WHICH
REASSIGNMENT RIGHTS ARE CREATED IN A REDUCTION-IN-FORCE.

/4/ SECTION 7114(A)(4) PROVIDES, IN PERTINENT PART:

SEC. 7114. REPRESENTATION RIGHTS AND DUTIES

(A)(4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE
UNIT IN THE AGENCY,

THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
FAITH FOR THE PURPOSES

OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT.

SEE ALSO SECTION 7103(A)(12).