23:0360(50)NG - FUSE, NAGE and Naval Underwater Systems Center, Newport, RI -- 1986 FLRAdec NG



[ 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)