[ v23 p360 ]
23:0360(50)NG
The decision of the Authority follows:
23 FLRA No. 50
FEDERAL UNION OF SCIENTISTS
AND ENGINEERS, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES
Union
and
NAVAL UNDERWATER SYSTEMS CENTER
NEWPORT, RHODE ISLAND
Agency
Case No. 0-NG-1164
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of two Union proposals submitted in
response to an announced Agency reorganization.
II. Union Proposal 1
No Position Description will be changed except for pen and ink
changes for branch changes, etc., for a minimum of 90 days.
A. Positions of the Parties
The Agency contends first that Union Proposal 1 is inconsistent with
a Government-wide regulation -- specifically FPM Chapter 511, Subchapter
4-3 -- because it conflicts with the requirement of that regulation for
position descriptions to accurately state the duties and
responsibilities assigned to employees, as the Authority held in
National Federation of Federal Employees, Local 1497 and Department of
the Air Force, Lowry Air Force Base, Colo., 9 FLRA 151 (1982) (Union
Proposal 1). Second, the Agency asserts that the proposal interferes
with management's rights to assign work, determine its organization,
reduce in grade or pay, and promote. Finally, the Agency asserts that,
in view of these restrictions on the exercise of management's rights,
the proposal does not contribute to an effective and efficient
government.
According to the Union, the intent of the proposal at issue here is
to ensure that "unit employees will not be promoted or downgraded by
deleting or adding duties" as a result of a reorganization. Union
Petition at 2. The Union contends that Proposal 1 "merely establishes a
procedure the Agency must follow in amending position descriptions, a
matter whith the Authority found was appropriate for collective
bargaining" in National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 6 FLRA 508 (1981) (Union Proposal
III). Reply Brief at 2. Similar to the proposal in that case, the
Union argues, its proposal here "merely prescribes a waiting period of
90 days before position descriptions may be changed, and imposes no
restriction on the assignment of work to employees prior to the change
in the position descriptions." Reply Brief at 2.
B. Analysis
The Union states that the purpose of Proposal 1 is to ensure that
"unit employees will not be promoted or downgraded by deleting or adding
duties" as a result of a reorganization. Union Petition at 2. This
intent is consistent with the plain language of the proposal because a
position description is the basis for classification of a position. See
National Federation of Federal Employees, Local 1497 and Department of
the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151, 153 (1982)
(Proposal 1). By prohibiting the Agency from making substantive changes
in position descriptions for a minimum of 90 days, the proposal would
effectively preclude reclassifications of those positions for that
period of time.
The Union also states that Proposal 1 does not restrict the Agency's
right to assign work under section 7106(a)(2)(B) of the Statute and is
intended only as a procedure for amending position descriptions. In
Lowry, 9 FLRA 151, 153, we found a proposal nonnegotiable which limited
the duties which could be included in a position description because it
conflicted with Chapter 511, Subchapter 4-3 of the Federal Personnel
Manuel (FPM). That FPM provision requires position descriptions to
accurately reflect the duties and responsibilities of positions. By
limiting the duties which could be included in the position description,
the proposal in Lowry conflicted with the FPM because it precluded the
Agency from including certain duties in position descriptions even if
those duties were assigned to employees. We concluded that the proposal
implicitly necessitated "the certification of an inaccurate position
description." 9 FLRA 151, 154.
Proposal 1 in this case has the same effect as the one in Lowry.
Consistent with the Union's intent, the proposal would not preclude the
Agency from assigning duties which if included in the position
descriptions would result in reclassification of the position. The
proposal would, however, prohibit the Agency from including those duties
in position descriptions for a minimum of 90 days even if the duties are
actually assigned to employees during that time period. Like the
proposal in Lowry, the proposal would result in inaccurate position
descriptions, in violation of the FPM and is nonnegotiable.
The fact that the conflict with the FPM would occur for a specified
time period does not change this conclusion. A proposal is
nonnegotiable if it conflicts at all with a Government-wide rule or
regulation under section 7117(a)(1) of the Statute. As noted in Lowry,
9 FLRA 151, 154-55, the provisions of Chapter 511 of the FPM constitute
a rule or regulation within the meaning of section 7117(a)(1). Also,
our decision in National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 6 FLRA 508 (1981) (Proposal III), is
not dispositive in this case because potential conflict between the
proposal in that case and the FPM was not raised by the Agency or
addressed by the Authority.
C. Conclusion
Union Proposal 1 conflicts with FPM, Chapter 511, Subchapter 4-3,
and, therefore, is nonnegotiable under section 7117(a)(1) of the
Statute.
III. Union Proposal 2
All new positions, except lateral transfers, established by the
reorganization, will be advertised within 30 days as promotional
opportunities.
A. Positions of the Parties
The Agency asserts that, in view of the Union's stated intent that
this proposal applies to all newly-established positions, including
nonbargaining unit positions, it is negotiable only at the Agency's
election and the Agency has elected not to bargain. The Agency also
contends that, if the Union's intent is to prevent management from
filling a position which has not been advertised as a promotional
opportunity within 30 days, or if it would require the Agency to fill
all newly created positions by promotions or lateral transfers only, the
proposal is inconsistent with management's right under section
7106(a)(2)(C) of the Statute to select from any appropriate source or
not to fill positions.
The Union contends that this proposal does not restrict the Agency's
right to select or concern how new positions created by the
reorganization are to be filled, and therefore does not interfere with
management's right to select under section 7106(a)(2)(C) of the Statute.
Rather, the Union asserts that the proposal would merely establish a
procedural 30-day posting requirement and therefore is analogous to a
proposal found negotiable by the Authority in American Federation of
Government Employees, AFL-CIO, International Council of United States
Marshals Service Locals and Department of Justice, United States
Marshals Service, 2 FLRA 765 (1980).
B. Analysis
The Authority has previously held that a proposal which would require
the posting of vacancy announcements before filling positions within the
bargaining unit constituted a negotiable procedure. See National
Treasury Employees Union and Internal Revenue Service, 7 FLRA 275, 285
(1981) (Union Proposal 4). Accordingly, to the extent that Union
Proposal 2 in this case would require the posting of notice concerning
vacancies in bargaining unit positions only, and would not require
management to fill such positions or select from any particular source,
the proposal constitutes a negotiable procedure under section 7106(b)(2)
of the Statute.
The Agency asserts without contradiction that the Union's proposal
would require management to post all newly-established positions,
including those outside the bargaining unit. To the extent that the
proposals would apply to positions outside the bargaining unit, it is
negotiable only at the Agency's election. See American Federation of
Government Employees, AFL-CIO, Local 2 and Department of The Army,
Military District of Washington, 4 FLRA 450 (1980). Contrary to the
Union's assertion, the Marshals Service case cited above is not
controlling. In that case, the Authority held that a proposal requiring
the announcement of "all vacancies for which unit employees are eligible
to apply regardless of how the vacancies are to be filled" constituted a
negotiable procedure under section 7106(b)(2) of the Statute. However,
there was no indication either in the language of the proposal or in the
record that the proposal was intended to apply to positions outside the
bargaining unit, and the Agency in that case did not so contend. As the
Authority has previously stated in a related context, where neither the
express language of a proposal nor the Union's stated intent requires a
proposal to be applicable to nonunit employees, the proposal will be
presumed to apply only to unit employees. See American Federation of
State, County and Municipal Employees, Local 2910 and 2477 and Library
of Congress, 15 FLRA 717, 718-719 (1984). As noted above, both the
language of Union Proposal 2 and the record in this case indicate that
the proposal applies to all newly created positions, not just those
within the bargaining unit.
However, consistent with the Union's stated intent, we conclude that
nothing in Union Proposal 2 would require the Agency to fill any of
those newly created positions or restrict management's right under
section 7106(a)(2)(C) of the Statute to select from any appropriate
source.
C. Conclusion
Since Union Proposal 2 applies to positions outside the bargaining
unit, it is negotiable only at the election of the Agency and the latter
has elected not to bargain concerning the matter. The proposal does not
conflict with management's right to select under section 7106(a)(2)(C)
of the Statute.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., September 23, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY