52:1341(124)NG - - Intl. Federation of Professional and Technical Engineers, Local No. 1 and Navy, Nuclear Business Office, Norfolk Naval Shipyard, Portsmouth, VA - - 1997 FLRAdec NG - - v52 p1341

[ v52 p1341 ]
The decision of the Authority follows:

52 FLRA No. 124

















April 25, 1997


Before the Authority: Phyllis N. Segal, Chair Donald S. Wasserman, Member.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons that follow, we find that the proposal, which relates to the determination of the position description, title, series and grade for a particular position, is not within the duty to bargain because it concerns the classification of a position.

II. Background

According to the Union, the Agency has in the past used production controllers (GS-1152-12) as liaisons in the Nuclear Business Office. However, when several production controllers decided to retire, the Nuclear Business Office Manager announced plans to replace them with nuclear engineers and submitted for classification a position description written in engineering terminology and titled Nuclear Engineer. The Union requested bargaining and presented a proposed memorandum of agreement, which the Agency alleged was nonnegotiable.

III. The Proposal (1)

[Paragraph 3]

3. Immediate Filling of Vacancies.

It is agreed that the GS-1152-12 positions which have an immediate need to be filled may be temporarily filled via a detail or other authorized temporary means until the resolution of this issue is complete. This includes the temporary filling of these positions with production controllers, engineers, engineering technicians and any other types as determined by the employer so long as a career advantage is not provided for any particular employee or group of employees via this temporary assignment.

[Paragraph 4]

4. Permanent Filling of Vacancies.

The Union and Employer agree to meet and draft a Position Description (PD) which will encompass the current and future needs of the Nuclear Type Desk (Code 1218) position and jointly submit this PD to the Human Resource Office (HRO) for title, series, and grade determination. This proposed PD is to be forwarded to HRO within 6 months of the date this MOA is dated. Failure to agree on the PD for submission to HRO or the title, grade, and series received from HRO will be considered a state of impasse (which either the Union or the Employer may declare at anytime during the process). At such time a state of impasse is declared the declarer is responsible for contacting the Federal Mediation and Conciliation Service to request assistance. Interest Based Bargaining techniques will be utilized to the maximum extent possible to determine the contents of the proposed P.D.

[Paragraph 5]

5. Status Quo.

It is agreed that until agreement is reached between the parties on the determination of the future position title, grade, and series the positions in the Nuclear Type Desk area which were previously Production Controller GS-1152-12 will officially remain GS-1152-12 positions until an agreement is reached between the Union and Employer.

IV. Positions of the Parties

A. Agency

The Agency contends that the proposal is not within the duty to bargain because it: (1) interjects the Union into the classification of positions, which is inconsistent with section 7103(a)(14) of the Statute; and (2) interferes with management's right to assign work under section 7106(a)(2)(B). As to the first reason, the Agency asserts that the proposal concerns classification because it requires the Union's agreement to the contents of the position description and the title, series and grade of the position. In support of its assertion, the Agency cites, among others, National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Production Center, Louisville, Kentucky, 45 FLRA 1199, 1203 (1992) (DMA, Louisville) and March Air Force Base, Riverside, California, 13 FLRA 255 (1983). As to the second reason, the Agency argues that the proposal interferes with the right to assign work because it requires Union agreement on the duties to be assigned to the position.

B. Union

The Union denies that this proposal relates to classification or interferes with management's right to assign work. The Union asserts instead that the proposal concerns a matter encompassed by section 7106(b)(1) of the Statute. The Union describes the proposal as limited to seeking joint preparation of a statement of the duties and responsibilities of the position that accurately reflects current and future workplace needs. The Union states that any reference in the proposal to challenging the final determination of the title, series, or grade of the position "is merely clarification that any appeal rights concerning any position classification and/or any collective bargaining rights are not being relinquished." Response at 2. The Union requests "delineation of the non-negotiable parts and if possible how those parts could be changed to make them negotiable." Petition at 2.

V. Analysis and Conclusions

A. Meaning of the Proposal

In interpreting a disputed proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation is consistent with the plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on its meaning, deciding whether the proposal is within the duty to bargain. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995). If, however, a union's explanation is not supported by a reasonable construction of the proposal, the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it for the purpose of determining whether the proposal is within the duty to bargain. E.g., International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 459 (1995).

The Union challenges the Agency's characterization of this proposal as requiring agreement to both the contents of the position description and the title, series and grade of the position. However, the Union's explanation that the proposal does not require its agreement to the title, series and grade of the position is not consistent with the plain wording of the proposal. Paragraph 4 of the proposal provides that failure to achieve Union agreement to the title, series and grade of the position constitutes an impasse and paragraph 5 conditions any change in the status quo on Union agreement to the title, series and grade of the position. Thus, the proposal is not limited to requiring Union agreement to the duties and responsibilities that will be stated in the position description. Rather, as plainly worded, the proposal also requires Union agreement to the title, series and grade of the position. Accordingly, for purposes of this decision, we interpret the proposal as requiring the Union's agreement to the title, series and grade of the position at issue as well as the content of the relevant position description.

The three disputed paragraphs of this proposal are interrelated. Paragraph 3 authorizes the temporary filling of vacancies while the parties are engaged in the process of jointly drafting the position description and determining the title, series and grade for the position at issue. Paragraph 4 specifies the process by which the parties will draft that position description and determine the title, series and grade. Paragraph 5 requires retention of the previously existing title, series and grade of the position pending completion of the process set forth in paragraph 4. Thus, paragraphs 3 and 5 are both dependent on paragraph 4 for their viability.

B. The Proposal Concerns the Classification of a Position

Section 7103(a)(14)(B) of the Statute excludes policies, practices, and matters relating to the classification of any position from the definition of conditions of employment and, by extension, the duty to bargain. In construing that section, the Authority relies on the definitions of the terms "classification" and "position" that appear in 5 C.F.R. § 511.101. E.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 665, 667-68 (1996) (Corps of Engineers, San Francisco). Pursuant to those definitions, "classification" means: