National Association of Government Employees, Local R3-76 and U.S. Department of Defense, Defense Logistics Agency, Defense Automated Printing Service, Philadelphia, Pennsylvania

[ v55 p509 ]

55 FLRA No. 88

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-76
(Union)

and

U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE AUTOMATED PRINTING SERVICE
PHILADELPHIA, PENNSYLVANIA
(Agency)

0-NG-2442

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

May 28, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

Statement of the Case

      This case is before the Authority on a petition for review of a negotiability issue filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contains one proposal.

      For the reasons that follow, we find that the proposal 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. [n2] 

II.     Background

      The Agency notified the Union of its intent to restructure its Philadelphia operations. The purpose of the restructuring was to update position descriptions to better reflect the actual work performed by employees. In particular, the proposed restructuring resulted from the fact that a "great amount of manual printing functions are now performed electronically," such that, "[w]ith some exception, manual wage grade and XP series duties are no longer performed by bargaining unit employees." Petition for Review at 2. The restructuring plan included reclassifying wage-grade positions to general schedule positions. New positions, grades and series were created, and bargaining unit employees were to be transferred to the new positions utilizing reduction-in-force (RIF) procedures. The disputed proposal in this case was offered by the Union during bargaining over the restructuring.

III.     Proposal

      The proposal is the following list:

Digital Warehouse/IMPODS 1st Shift
1 Supervisor, GS-11
1 Computer Programer, GS-9
3 Computer Operators, GS-07
3 Bindery Machine Operators, XP-05
2 A/QC Operators (Printing Clerks (OA)), GS-04
1 Copier/Duplication Equipment Operator, GS-05
2 Distribution Clerks, GS-05
Quest/NPODS
1 System Administrator, GS-11
2 Copier/Duplicator Operator, GS-05
Shop Electronic Reproduction
1 Supervisor, GS-14
1 Electronic Duplicator Operator Leader, GS-09
2 Electronic Duplicator Operator (DOCUTECH), GS-07
2 Copier/Duplicator Operators (XEROX 9790), GS-05
1 Copier/Duplicator Operator, GS-04
2 Laborers (Delivery Service), WG-05
2 Distribution, GS-05
Document Conversion, 1st Shift PDF
1 Electronic Conversion Specialist Leader, GS-09
2 Electronic Conversion Specialist, GS-07
2 File Clerks (materials-handler), WG-04
3 Printing Clerk (1 GS-04, 1 GS-03, 1 GS-02)
Document Conversion, 2nd Shift
1 Supervisor, GS-14
1 Electronic Duplicator/Duplicator Operator Leader, GS-09
2 Electronic Duplicator Operator, GS-07
2 Copier/Duplicator Equipment Operators (9790), GS-05
1 Distribution, GS-05
1 QUEST, GS-05
1 Computer Operator, GS-07 IMPODS
1 Copier/Duplicator Operator, GS-05 [ v55 p510 ]
2 PDF (Electronic Conversion Specialists), GS-07
1 QA/QC IMPODS D-Base, GS-04
Document Conversion, 3rd Shift
1 Supervisor, GS-11
1 Computer Operator, GS-07
1 Copier/Duplicator Operators, GS-05
3 Bindery Machine Operators, XP-05
2 QA/QC IMPODS Data Base, GS-04
1 Electronic Duplicator Operator DOCUTECH Leader, GS-09
1 Electronic Duplicator Operator DOCUTECH Leader, GS-07
2 Copier/Duplicator Equipment Operators (9790), GS-05
2 Electronic Conversion Specialists (PDF), GS-07
2 Distribution Clerks, GS-05
DAPS-DSCP 1st, 2nd and 3rd Shifts and Building 77L
1 Printing Officer, GS-12
1 Printing Specialist, GS-09
1 Supervisor, GS-11
4 Copier/Duplicator Operators (9790), GS-05
4 Copier/Duplicator Operators, GS-05
1 Laborer, WG-04
1 Binder XP-5
1 Electronic Duplicator Operator, GS-09
2 Electronic Duplicator Operator (Docutech), GS-07

IV.     Position of the Parties

A.     The Agency

      The Agency asserts that the proposal concerns classification matters and is excluded from the duty to bargain under section 7103(a)(14)(B) of the Statute. The Agency claims that the proposal would "reclassify the positions . . . by raising the grade level of each position." [n3]  Statement of Position at 4. The Agency also asserts that the proposal affects its right to determine its organization under section 7106(a)(1), and that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) because it excessively interferes with the Agency's right.

      The Agency maintains that its assertion that the proposal is outside the duty to bargain is consistent with its ground rules agreement with the Union to bargain over proposals concerning subjects set forth in section 7106(b)(1) of the Statute. [n4]  According to the Agency, "to the extent that the Agency has bargained over proposals within the purview of 7106(b)(1), at this point it is exercising its option to withdraw from such negotiations." Id. at 7.

B.     The Union          

      The Union argues that the proposal does not seek to classify positions. The Union asserts that the intent of the proposal is "to define the number of positions under each work area and define the work performed for each position by assigning the position a title and grade." Petition for Review at 3.

      The Union also asserts that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute because it would "alleviate the adverse affects on the bargaining unit as a result of the realignment/ reorganization." Id. at 4. The proposal, according to the Union, would provide advancement opportunities for unit employees and enable them "to compete for jobs graded three or more levels higher" than their post-reorganization positions. Id. at 4-5. "Reasonably graded positions with reasonable career path opportunities," the Union asserts, "avoid[] the adverse affect of the lack of promotional opportunities and potential [RIFs]." Id. at 5.

      The Union also argues that the proposal "falls within the ambit" of section 7106(b)(1) of the Statute because it seeks to "define the number of positions under each work area and define the work performed for each position by assigning the position a title and grade." Id. at 3. The Union argues that, as the Agency elected in the ground rules agreement to bargain over section 7106(b)(1) issues and to "follow the directives of Executive Order 12871," the Agency should be required to negotiate over the proposal. Id. at 4. [ v55 p511 ]

V.     Meaning of the Proposal

      The proposal lists position titles, with an accompanying grade, and states the number of each graded position. The positions on the list are grouped according to shifts and work areas that comprise the Agency's Philadelphia operations. The Union states that the intent of the proposal is "to define the number of positions under each work area and define the work performed for each position by assigning the position a title and grade." Petition for Review at 3. As the Union's statement of intent comports with the proposal's wording, we adopt it and interpret the proposal as establishing numbers, positions and grades of employees within a component of the Agency.

VI.     Analysis and Conclusions

A.     The proposal does not concern a classification matter under section 7103(a)(14)(B) of the Statute.

      Section 7103(a)(14)(B) of the Statute defines the term "conditions of employment" and excludes from that definition "matters relating to the classification of any position[.]" 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 (1996). Pursuant to those definitions, the term "classification" means: "the analysis and identification of a position and placing it in a class under the position-classification plan established by [the Office of Personnel Management (OPM)] under chapter 51 of title 5, United States Code; and the term "position" means: "the work, consisting of the duties and responsibilities, assigned by competent authority for performance by an employee." 5 C.F.R. § 511.101(c) and (e).

      As construed above consistent with the Union's statement of intent, the proposal would establish the numbers, positions, and grades in the Agency's Philadelphia operations. That is, the proposal would establish a staffing pattern--by specifying the number and grades of positions--for those operations. The proposal would not, by its plain terms or as interpreted by the Union, require the Agency to classify, or reclassify, particular existing positions, and would not require the placement of incumbent employees into the positions established in the proposal. The Union states that the proposal would "define the work performed for each position by assigning the position a title and grade." Petition for Review at 3. This plainly acknowledges that the title and grade of positions established as a result of the proposal must be appropriate based on the work assigned to the positions, and vice versa. As such, the Agency's claim that the proposal would change the classification of positions that have "already [been] properly classified" is without support. Statement of Position at 3.

      The Agency acknowledges that the Union wishes to assign titles and grades and have the assigned titles and grades define the duties of the positions. Id. at 8. Although the Agency asserts this "sort of reverse classification" is not the "method contemplated for determining titles, series and grades of positions under Title 5," id., it does not cite any law, rule or regulation that would prohibit what is stated in the proposal. The Authority decisions relied on by the Agency are all distinguishable. In Point Mugu, the proposal required the agency to "reclassify" particular positions. Point Mugu, 45 FLRA at 803. In NUSC Newport, the proposal mandated that the agency "extend" the "career ladder of an individual assuming the position of the president of [the union]" to a higher grade. NUSC Newport, 42 FLRA at 1287. The proposal here, in contrast, does not require the agency to reclassify existing, already-classified positions.

      Put simply, the proposal establishes a staffing pattern. Nothing in the proposal would affect the Agency's ability to assure that the work assigned to the positions would be consistent with their grade and classification. The proposal, therefore, does not relate to a classification matter under section 7103(a)(14)(B) of the Statute.

B.     The proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute.

      Consistent with American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 177-78 n.10 (1998), the Authority first addresses whether a proposal affects a management right or rights under section 7106(a) of the Statute, and then whether the proposal concerns a matter over which an agency has a duty to bargain under sections 7106(b)(2) or (b)(3). If necessary, the Authority then addresses whether the proposal is negotiable at the election of the Agency under section 7106(b)(1). Id.

      In this case, the Agency asserts, and the Union does not dispute, that the proposal affects the Agency's right to determine its organization under section 7106(a)(1) of the Statute. Accordingly, we begin with the Union's assertion that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. [ v55 p512 ]

      In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, 51 FLRA 133, 141 (1995). If the proposal is determined to be an arrangement for employees adversely affected by the exercise of management's rights, then the Authority determines whether it is "appropriate" by examining the extent to which it interferes with the relevant management right. The Authority weighs the "competing practical needs of employees and managers," KANG, 21 FLRA at 31-32, to determine whether the proposal excessively interferes with the relevant management right.

      In this case, assuming that the proposal constitutes an arrangement, we conclude that it excessively interferes with the Agency's right to determine its organization. In this regard, the proposal would significantly alter the Agency's proposed restructuring of the Philadelphia operations. For example, the Union's proposal would require the Agency to establish new positions that are not included in the Agency's plan, increase the grade levels of numerous positions encompassed by the Agency's plan, and dictate the types of employees assigned to various Agency functions. The proposal would leave the Agency no discretion to alter the structure or composition of its workforce in any way. Although the proposal would afford unit employees some benefits, in terms of increased placement and promotional opportunities, these benefits would result from severe restrictions on the Agency's ability to establish an organizational structure that meets its needs. See American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1606 (1993) (proposal requiring agency to assign certain position to three different offices instead of the one office it had determined to be most efficient held to result in "significant negative impact" on right to determine organization).

      In these circumstances, we conclude that the proposal would excessively interfere with the Agency's right to determine its organization. Accordingly, the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

C.     The proposal concerns "numbers, types and grades" of employees assigned to an organizational subdivision under section 7106(b)(1) of the Statute.

      Under section 7106(b)(1) of the Statute, proposals relating to the "numbers, types, and grades of employees or positions assigned to any organizational subdivision" are negotiable at the election of the agency. This phrase applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030 (1997). The determination of whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff. See 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, 432 (1997) (holding that a proposal requiring bilateral agreement concerning the number of employees or positions assigned to an organizational subdivision, work project or tour of duty comes within the scope of section 7106(b)(1)).

      As explained above, the Union's proposal identifies numbers, positions and grades of employees to be assigned to the Agency's Philadelphia operations. As such, it concerns the numbers, types and grades of employees, within the meaning of section 7106(b)(1) of the Statute. Accordingly, we conclude that it is negotiable at the Agency's election under section 7106(b)(1). As such, consistent with section 2424.10 of the regulations that we apply in this case, the Union's petition for review must be dismissed. [n5]  See National Association of Government Employees, Local R5-184 and U.S. Depart- [ v55 p513 ] ment of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 394 n.12 (1995).

VII.     Order

      The Union's petition for review is dismissed.


Dissenting decision of Member Cabaniss

      I respectfully disagree with the majority decision and would find no duty to bargain over the proposal as it concerns a classification matter under section 7103(a)(14) of the Statute.

      The Authority consistently has held that a proposal that assigns a specific grade level to a specific position concerns a classification matter under section 7103(a)(14) of the Statute. See, e.g., National Association of Government Employees Local R5-168 and U.S. Department of the Army, Fort Polk, Louisiana, 53 FLRA 1622, 1624-25 (1988) (Fort Polk). In Fort Polk, an agency audit determined that grades would be increased for one group of employees while the grades relating to three other groups would be lowered. The proposal there would have required the agency to designate all the employees at a higher grade. The Authority found that, by identifying the series and grade into which specified positions would be placed, the proposal "relate[d] to the classification of those positions" and was outside the duty to bargain. Id. at 1625. See also International Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333, 339 (1995) (the assignment of a particular "pay level" or "grade level" to a position based upon its duties and responsibilities is part of the classification process); National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Naval Air Warfare Center, Weapons Division, Point Mugu, California, 45 FLRA 802, 803 (1992) ("Proposals concerning the pay level of positions concern classification of positions, within the meaning of section 7103(a)(14)(B)."); March Air Force Base, Riverside, California and American Federation of Government Employees, AFL-CIO, Local 1953, 13 FLRA 255, 258 (1983) ("[I]t appears that Congress intended to remove from the scope of bargaining threshold determinations as to what duties and responsibilities will constitute a given position and the placement of that position in a class for purposes of personnel and pay administration.").

      The majority's rationale, as to why the present situation is distinguishable from some of the noted precedent, appears to be based upon distinctions that support no substantive difference as to the outcome mandated by our own case law. Accordingly, I would find, consistent with the precedent cited, supra, that the proposal here presents no duty to bargain because it concerns a classification matter under section 7103(a)(14) of the Statute.






Footnote # 1 for 55 FLRA No. 88

   Member Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 88

   This section of the regulations, which was in effect at the time the Union filed its petition, has been modified and renumbered as section 2423.40 of the recently revised regulations. See 63 Fed. Reg. 66,413 (1998). As the revised regulations apply only to petitions filed after April 1, 1999, we apply the prior regulations in this case.


Footnote # 3 for 55 FLRA No. 88

   The Agency cites two decisions where, it contends, the Authority found that similar or analogous proposals concerned classification matters: National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Naval Air Warfare Center Weapons Division, Point Mugu, California, 45 FLRA 802 (1992) (Point Mugu); and National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA 1285 (1991) (NUSC Newport).


Footnote # 4 for 55 FLRA No. 88

   The parties' ground rules agreement provides, in pertinent part: