23:0360(50)NG - FUSE, NAGE and Naval Underwater Systems Center, Newport, RI -- 1986 FLRAdec NG
[ v23 p360 ]
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.