U.S. Dept. of Navy, Naval Aviation Depot, Cherry Point, North Carolina v. Federal Labor Relations Authority, 91-1123

• Decision Date: 14 January 1992
• Docket Number: No. 91-1123,91-1123
• Citation: 952 F.2d 1434
• Parties: 139 L.R.R.M. (BNA) 2234, 293 U.S.App.D.C. 240 UNITED STATES DEPARTMENT OF the NAVY, NAVAL AVIATION DEPOT, CHERRY POINT, NORTH CAROLINA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1434

952 F.2d 1434

139 L.R.R.M. (BNA) 2234, 293 U.S.App.D.C. 240

UNITED STATES DEPARTMENT OF the NAVY, NAVAL AVIATION DEPOT CHERRY POINT, NORTH CAROLINA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 91-1123.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 15, 1991.

Decided Jan. 14, 1992.

Petition for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority.

Mark W. Pennak, Atty. U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Atty., Washington, D.C., were on the brief, for petitioner.

Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, with whom William E. Persina, Sol., William R. Tobey, Deputy Sol., and Jill A. Griffin, Atty., Washington, D.C., were on the brief, for respondent.

Before: EDWARDS, RUTH B. GINSBURG and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The United States Department of the Navy ("Navy") petitions for review of a decision and order of the Federal Labor Relations Authority ("Authority" or "FLRA") requiring the Navy to bargain with the International Association of Machinists and Aerospace Workers, Local Lodge 2297 ("Local 2297"), one of the unions at its Cherry Point, North Carolina installation, regarding two proposals made by Local 2297. The first contested proposal seeks to compel the Navy to allow Local 2297 employees to compete for promotions at all Cherry Point facilities; it would also allow all persons not in the Local 2297 unit to bid on positions throughout the Cherry Point installation. The second disputed proposal calls for the establishment of an "open" parking policy for all employees and supervisory personnel working at the Cherry Point installation.

In holding the two proposals to be within the Navy's duty to bargain under the Federal Service Labor-Management Relations Statute ("FSLMRS"), 5 U.S.C. §§ 7101-7135 (1988), the Authority purported to apply a "vitally affects" test borrowed from private sector labor law. In so doing, the FLRA determined that the proposals were subject to mandatory bargaining, notwithstanding their impact on non-bargaining unit personnel, because they significantly and materially affected the conditions of employment of bargaining unit members. International Ass'n of Machinists & Aerospace Workers Local Lodge 2297, 38 F.L.R.A. 1451 (1991) ("IAM Local 2297 "). We agree with the Navy that the Authority's decision is infected with legal error.

We find that the Authority's construction and application of the "vitally affects" test is inconsistent with the FSLMRS, the Authority's own precedents and the private sector labor law principles upon which the Authority purported to rely. We further hold that, under the FSLMRS, the union proposals at issue in this case cannot be found to be within the scope of mandatory bargaining to the extent that they seek to regulate the conditions of employment of employees in other bargaining units and supervisory personnel. Accordingly, we vacate the Authority's order and remand for further proceedings.

I. BACKGROUND

The instant petition--styled a "test case" by the Navy--presents for review the propriety of the Authority's adoption, construction and application of the "vitally affects" test. The Authority adopted the test as a result of a prior litigation that came before this court on three separate occasions. Indeed, to the extent that we find legal error in this case, we must shoulder at least partial responsibility for it: some of the Authority's missteps in this case have been prompted by prior directions from this court.

A. The Prior Litigation

The Authority's adoption of a so-called "vitally affects" test had its genesis in two prior decisions of this court. See American Fed'n of Gov't Employees, Local 32 v. FLRA, 853 F.2d 986 (D.C.Cir.1988) ("AFGE II "); Local 32, Am. Fed'n of Gov't Employees v. FLRA, 774 F.2d 498 (D.C.Cir.1985) ("AFGE I "). The issue in those cases was whether the Authority properly determined that union proposals defining the "competitive area" ¹ for reductions-in-force were not within the duty to bargain, on the ground that the proposals would affect non-bargaining unit employees. In AFGE I, 774 F.2d at 502-04, we vacated the Authority's decision of non-negotiability, holding that the Authority had failed to explain its departure from prior precedent and had neglected to consider the "vitally affects" test applicable in private labor law. See Allied Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178-79, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971) ("Pittsburgh Plate Glass") (describing the private sector test). On remand, the Authority applied a balancing test--weighing the unions' right to negotiate about the proposals against the agencies' right to set the terms of employment of non-bargaining unit employees--and, finding that the balance tipped in the agencies' favor, adhered to its prior decision. The affected unions again sought appellate review, and this court again vacated and remanded. We held that the Authority's balancing test was inconsistent with the FSLMRS, and we again suggested that the Authority consider adopting the "vitally affects" test. See AFGE II, 853 F.2d at 991-93.

On remand a second time, the Authority heeded this court's suggestion and adopted a "vitally affects" test. Office of Personnel Management, 33 F.L.R.A. 335 (1988) ("OPM "). The Authority held that, after reconsidering the issue, it had decided to "adopt the private sector [vitally affects] test used by the NLRB." Id. at 337. Translating the test into the framework of the FSLMRS, the Authority held:

We will find that a proposal is within the duty to bargain under the Statute [FSLMRS] if it (1) vitally affects the working conditions of unit employees, and (2) is consistent with applicable law and regulations. We no longer will examine the effect of the proposal on nonunit employees or positions.

Id. at 338. The Authority went on to conclude that the competitive area proposal before it vitally affected the working conditions of bargaining unit employees and therefore was within the duty to bargain, notwithstanding the effect of the proposal on non-unit employees. Id. at 338-39.

The agencies affected by the OPM decision petitioned for review, and the matter came before this court for the third time. See United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C.Cir.1990) ("AFGE III "). The agencies argued on appeal that the Authority erred by adopting the "vitally affects" test and that it had applied the test incorrectly. We declined to reach the merits of these contentions because the agencies had not raised them before the Authority; accordingly, we enforced the Authority's bargaining orders. See id. at 433-35.

Subsequent to AFGE III, the Authority has continued to apply and refine the "vitally affects" test--this case being only one of several examples. Because of the procedural posture in which AFGE III reached this court, the instant petition represents the first time that the merits of the Authority's adoption and construction of the "vitally affects" test have come before this court for review.

B. Facts

The facts of this case are straightforward and essentially undisputed. The Navy operates an installation at Cherry Point, North Carolina. That installation is composed of three facilities: the Naval Aviation Depot, the Marine Corps Air Station and the U.S. Naval Hospital. There are nine separate bargaining units at the installation. The largest of these is the Local 2297 unit, which covers 1,959 (57%) of the 3,410 unionized employees at Cherry Point. All Local 2297 employees work at the Naval Aviation Depot.

In the negotiations at issue here, Local 2297 submitted two proposals to the Navy and requested bargaining. The proposals are set out in the Appendix to this opinion, with the disputed portions highlighted. Briefly stated, Proposal One would compel the Navy to allow Local 2297 employees to compete for promotions at all Cherry Point facilities; it would also allow persons not in the Local 2297 unit to bid on positions throughout the Cherry Point installation. Proposal Two would require the Navy to implement an "open" parking policy, permitting parking in any open space by "all employees and the employer on a first come first serve basis." The second proposal also would require reserved parking for Navy executives, union officials and others. See Appendix, infra; see also IAM Local 2297, 38 F.L.R.A. at 1455, 1461 (describing proposals).

The Navy refused to negotiate over the proposals, maintaining that both were outside the duty to bargain because they would regulate the conditions of employment of non-unit employees and supervisory personnel. In response, Local 2297 filed a complaint with the Authority, asserting that the Navy had violated its duty to bargain in good faith. See 5 U.S.C. §§ 7114(a)(4), 7116(a)(5) (1988). The Navy, in its submissions to the Authority, argued that the "vitally affects" test adopted in OPM should be reconsidered, that the Authority's construction of the test was flawed and that the subject matter of the two Local 2297 proposals was not sufficiently "vital" to Local 2297 employees to satisfy the test.

On January 14, 1991, the Authority issued the decision now under review. The Authority rejected the Navy's arguments and, adhering to its ruling in OPM, purported to apply a "vitally affects" test. IAM Local 2297, 38 F.L.R.A. at 1452. Defining "vital" as "material or significant," the Authority concluded that Proposal One vitally affected bargaining unit members because it would improve appreciably their opportunities for promotion. Id. at 1455. The Authority found that Proposal Two also would have a significant and material effect on the bargaining unit because it would bolster...