45:1199(119)NG - - NFFE Local 1482 and DOD, Defense Mapping Agency, Hydrographic/Topographic Production Center, Louisville, KY - - 1992 FLRAdec NG - - v45 p1199
[ v45 p1199 ]
The decision of the Authority follows:
45 FLRA No. 119
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a proposal that would, among other things, prevent the Agency from reclassifying positions unless the employees incumbent in those positions consented. The Union did not file a response to the Agency's statement of position. For the following reasons, we find that the proposal is nonnegotiable.
II. Preliminary Matters
On October 25, 1990, the Union filed an unfair labor practice charge alleging that the Agency had violated section 7116(a)(1), (5), and (8) of the Statute by reclassifying certain bargaining unit positions without bargaining with the Union. Also on October 25, 1990, the Union submitted to the Agency a proposal consisting of the first two sections of the proposal that is at issue in this case. The Agency alleged that the proposal was nonnegotiable and the Union filed the instant petition for review of the Agency's allegation of nonnegotiability. In accordance with section 2424.5 of the Authority's Rules and Regulations, the Union elected to proceed under the unfair labor practice procedures.
By letter dated January 31, 1991, the Regional Director declined to issue a complaint based on the Union's charge. The Union appealed the Regional Director's decision not to issue a complaint and, by letter dated May 21, 1991, the Office of the General Counsel denied the Union's appeal.
By letter to the Authority dated June 3, 1991, the Union stated that on February 28, 1991, while the appeal of the Regional Director's decision was pending before the Office of the General Counsel, the Union had resubmitted its proposal to the Agency. The proposal, as resubmitted, contained the same two sections as the original proposal and added a section (Section 3) that was not a part of the original proposal. There is no evidence in the record that the Union requested an allegation of nonnegotiability as to Section 3 or that the Agency has alleged that Section 3 is nonnegotiable. Rather, the record shows that in response to the Union's proposal as resubmitted, the Agency requested to meet with the Union to discuss the proposal.
Under section 2424.1 of our Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation. See, for example, National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242, 246 (1992). The Agency has asserted that the first two sections of the proposal are inconsistent with law. Accordingly, the conditions governing review of negotiability issues have been met as to those sections. However, the Agency has not asserted that Section 3 is nonnegotiable. Because the Agency does not assert that Section 3 of the Union's proposal is nonnegotiable, the conditions governing review of negotiability issues have not been met as to Section 3.
Consequently, we will dismiss the Union's petition for review as it pertains to Section 3 of the proposal without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are satisfied and the Union elects to file such an appeal.
III. The Proposal
The following procedure will be used in reclassification of positions in the terrain analysis division to cartographer:
1. If the employee affected agrees in writing to the proposed change it can be accomplished.
2. If the employee affected does not agree in writing to the proposed change then the employee[']s classification will not be changed. The employee[s], at their discretion, may have the classification changed to cartographer at any time in the future by giving their branch chief a written statement indicating the requested change. The change will be done in a timely manner.
The employee(s) who elect to keep their current title, position description, and standards will retain all previous benefits of the said position.
The said written agreement of the employee will be maintained by the employer for a period of one (1) year. The Union will have access to review the material at any time.
3. Because of the severe adverse affect on the loss of pay of the civil engineers they will retroactively from 02 Dec 1990 receive the following (if the employee elects to use this service) service paid entirely by the employer:
A. Free parking from the lot of the employee[']s choice.
B. Free health club membership from the club of their choice.
C. Free child care from the provider of their choice.
D. A yearly cash award in the following amount for their performance appraisal (if monies are not available for all cash awards for all employees then the engineers will receive priority consideration for the awards).
1. Fully Successful---5% of their annual salary.
2. Highly Successful--7.5% of their annual salary.
3. Outstanding-------10% of their annual salary.
These items will help compensate the engineers for the loss of pay by the employer removing them from special rate of pay, which may be barred from negotiations by law. [The preceding sentence was added to the original proposal as part of Section 3 of the resubmitted proposal.]
IV. Positions of the Parties
A. The Agency
The Agency contends that the proposal is nonnegotiable because it concerns matters related to the classification of positions which are excluded from the definition of conditions of employment under section 7103(a)(14)(B) of the Statute. The Agency also contends that the proposal does not constitute either a procedure under section 7106(b)(2) of the Statute or an appropriate arrangement under section 7106(b)(3) of the Statute because the "proposal was intended to be a complete abrogation of the Agency's authority to reclassify positions." Statement of Position at 6. The Agency also argues that employees were not adversely affected as a result of the reclassification action.
Further, the Agency contends that the proposal is nonnegotiable because it is "analogous to proposals . . . which condition the exercise of management's section 7106 rights on employees' consent." Id. at 7. The Agency argues that, because the proposal prevents reclassification of positions without employee consent, the proposal "also should be considered to directly interfere with, or directly relate to, the Agency's authority to classify positions without bargaining." Id.
B. The Union
The Union explains that the intent of its proposal is to permit those employees affected by the Agency's reclassification of a position to "control the reclassification action." Petition for Review at 2. In this regard, the Union states that "[i]f [the employees] agree with it[,] it can be done. If they object, it will not be done." Id.
V. Analysis and Conclusions
Section 7103(a)(14)(B) of the Statute excludes from the definition of conditions of employment matters "relating to the classification of any position[.]" See National Association of Government Employees, Local R12-23 and U.S. Department of the Navy, Naval Air Warfare Center, Weapons Division, Point Mugu, California, 45 FLRA 802 (1992). By its terms, the proposal in this case would prevent the Agency from reclassifying positions unless employees affected by the reclassification action agree to the reclassification. In its petition, the Union states that the proposal is intended to prevent the Agency from reclassifying an employee's position unless the employee agrees. Therefore, based on the plain wording of the proposal a