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53 FLRA No. 158

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS

LOCAL 4

(Union)

and

U.S. DEPARTMENT OF THE NAVY

PORTSMOUTH NAVAL SHIPYARD

PORTSMOUTH, NEW HAMPSHIRE

(Agency)

0-NG-2378

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DECISION AND ORDER ON A NEGOTIABILITY ISSUE

March 31, 1998

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Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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). The Agency filed a statement of position and the Union filed a response.

For the reasons that follow, we find that the proposal, which would require the Agency to bargain over the substance of its policy concerning the assignment of instructors to do routine technician work, is negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, we dismiss the petition pursuant to section 2424.10 of the Authority's Regulations.

II. Background

The proposal was presented in response to the Agency's announced decision to assign Radiological Control Instructors, GS-12 (instructors) to do the work of Radiological Control Technicians, GS-10 (technicians). Technicians provide protection to shipyard personnel and the general public from radioactive contamination related to nuclear work at the shipyard. Instructors provide radiological control training to shipyard personnel, including the technicians. The two groups are assigned to separate divisions. Previously, the Union and Agency had negotiated an agreement that set out procedures for assigning technician duties to instructors in order "to support necessary/emergent . . . assignments." Support Division Instruction No. 4 (SDI No. 4).⁽¹⁾

In addition to this negotiability appeal, the Union has filed an unfair labor practice (ULP) charge alleging that the Agency violated the Statute by failing to bargain over its proposed policy to assign instructors to do technician work. Pursuant to the Authority's Regulations, the Union elected to proceed with this negotiability petition and suspend consideration of the ULP. 5 C.F.R. 2424.5.

III. Proposal

Prior to implementation, negotiate the policy put forth by the Agency of using "A"-qualified Radiological Control Instructors to do Radiological Control Technicians work for routine/non-emergent work evolution's, and to clarify "emergent work."

IV. Positions of the Parties

A. Agency

The Agency contends that the proposal interferes with management's rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Agency disputes the Union's contention that the proposal involves a matter that is encompassed by section 7106(b)(1) of the Statute. In this regard, the Agency characterizes the assignments of the instructors as "details" and argues that the proposal does not fall under section 7106(b)(1), because a detail does not affect the permanent "number" of employees assigned to an organization subdivision.

The Agency also contends that it satisfied its duty to bargain over the subject matter contained in the proposal when it negotiated and agreed to the terms of SDI No. 4.

B. Union

The Union states that the proposal is a request to negotiate "the situation of assigning [i]nstructors to do planned routine . . . [t]echnicians work." See Union's Response to Show Cause Order at 1. The Union contends that the proposal concerns numbers, types, and grades of employees assigned to any organizational subdivision, work project, or tour of duty under section 7106(b)(1). In this regard, the Union claims that the proposed work assignment for instructors would involve a different type of work in another organizational subdivision. The Union also states that the Agency's assignment of instructors to another subdivision affects the number of employees assigned to these divisions. The Union also notes that the instructors involved in this dispute are at the GS-12 level while the technicians are GS-10 employees. In the Union's view, the Agency is required to bargain over the proposal under Executive Order 12871. 58 Fed. Reg. 52201, Oct. 6, 1993)

The Union disputes the Agency's argument that the proposal interferes with management's rights to assign employees and assign work. The Union also disputes the Agency's contention that the Agency satisfied its duty to bargain over the subject matter contained in the proposal when it negotiated and agreed to the terms of SDI No. 4. The Union argues that SDI No. 4 concerns the assignment of instructors to do technician duties under emergency conditions and does not apply to routine Technician work.

V. Analysis and Conclusions

A. Meaning of the Proposal

The Union explains that the proposal is a request to negotiate the Agency's policy of assigning instructors to do routine technician work. Based on the wording of the proposal and the Union's explanation, we construe the proposal as requiring the Agency to bargain over the substance of its policy concerning the assignment of instructors to do routine technician work.

B. The Proposal Is Negotiable at the Election of the Agency Under Section 7106(b)(1) of the Statute

1. Analytic Framework

The Agency argues that this proposal conflicts with management's right to assign work and employees under section 7106(a) of the Statute. The Union argues that the proposal concerns numbers, types, and grades of employees, matters encompassed by section 7106(b)(1) of the Statute. In National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington I), the Authority held that, where parties disagree over whether a proposal is a 7106(a) or 7106(b)(1) matter, the Authority will first examine the contention that the proposal is electively bargainable under section 7106(b)(1). If the proposal concerns a subject contained in section 7106(b)(1), then the Authority will not address contentions that the proposal also affects the exercise of management's authority under section 7106(a), because subsection (b) is an exception to subsection (a). Rather, the Authority will dismiss the petition pursuant to section 2424.1(b) of its regulations. Id. at 394 and n.12.⁽²⁾ However, if the proposal is not encompassed by section 7106(b)(1), then the Authority will analyze whether it implicates management's authority under section 7106(a).

In this case, the Union alleges that the proposal relates to the first category in section 7106(b)(1): the numbers, types, or grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty. Id. at 394, n.11. In National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024 (1997) (VAMC, Lexington II), the Authority concluded that this category referred to "the establishment of staffing patterns, or allocation of staff, for the purpose of an agency's organization and the accomplishment of its work[,]" and that the term "types," in particular, refers to "distinguishable classes, kinds, groups or categories of employees or positions that are relevant to the establishment of staffing patterns." Id. at 1030-31 (footnote omitted).

2. The Proposal Concerns the Types of Employees or Positions Assigned to an Organizational Subdivision, a Matter within the Meaning of Section 7106(b)(1)

The Union contends, and the Agency does not dispute, that instructors are a distinguishable category of employees from the technicians, with the ordinary job duties of the two groups involving different work. Consequently, the proposal concerns a type of employee or position within the meaning of section 7106(b)(1) of the Statute. See, e.g., Id. at 1031-32. The Union also contends, and the Agency does not dispute, that instructors would be assigned to a different organizational subdivision within the meaning of section 7106(b)(1) of the Statute. See, e.g., National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 431 (1997). As the proposal requires the Agency to bargain over assigning a type of employee or position to an organizational subdivision, it concerns a matter within section 7106(b)(1).

There is no merit in the Agency's argument that the proposal does not fall within the meaning of section 7106(b)(1) because it concerns a "detail" of employees. The Authority has previously found a proposal, similar to the one here, involving short duration assignments of employees, to concern a matter within section 7106(b)(1) See VAMC, Lexington II, 52 FLRA at 1028-33 (Proposal 4).

Therefore, we find that the proposal is negotiable at the election of the Agency and we do not reach the Agency's contentions as to section 7106(a).⁽³⁾

VI. Order

The proposal is negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, under section 2424.10(b) of the Authority's Regulations, the petition is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Nothing in the record explains the meaning of the term "emergent" contained in SDI No. 4. The Union appears to define that term to mean "emergency." See Petition for Review, Attachment 1. The Agency appears to dispute that definition. See Agency Statement of Position at 4 (Statement).

2. Section 2424.10(b) of the Authority's Regulations pertinently provides:

If the Authority finds that the duty to bargain extends to the matter proposed to be bargained only at the election of the agency, the Authority shall so state and issue an order dismissing the petition for review of the negotiability issue.

3. In light of this decision, it also is not necessary to address the issue of whether the Agency satisfied its duty to bargain over the subject matter contained in the proposal when it agreed to the terms of the parties' agreement set forth in SDI No. 4. See VAMC, Lexington I, 51 FLRA at 400.

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