American Federation of Government Employees, Local 2031 (Union) and U.S. Department of Veterans Affairs, Medical Center, Cincinnati, Ohio (Agency)

[ v56 p32 ]

56 FLRA No. 3

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2031
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER,
CINCINNATI, OHIO
(Agency)

0-NG-2468

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

February 17, 2000

_____

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

I.     Statement of the Case

      This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). [n2] The petition for review concerns four proposals, two with multiple sub-parts. [n3] The Agency filed a statement of position. The Union did not respond. For the reasons that follow, we dismiss the Union's petition for review.

II.     Background

      In August 1998, the Agency sent the Union an impact and implementation notice advising of its intent to reorganize by moving three positions from its Acquisition Management Section (AMS) to its Materiel Management Section (MMS). See Petition for Review, at attached Agency memorandum dated August 14, 1998 (entitled "A&MMS Re-organization - I&I Notice"). The result of reassignment included a change in the affected employees' immediate supervisor and physical work location. The Union sought to bargain over the reorganization and submitted seven proposals to the Agency. See id., at attached Agency memorandum dated October 16, 1998 (entitled "Proposals on A&MMS Service Re-organization"). The Agency declined to negotiate four of the proposals, citing management rights and classification matters under the Statute. Id. The Union responded with a petition for review to the Authority on the contested proposals. [n4] 

III.     Proposals

Proposal #1
Management agrees to establish true, total supply support by either giving SPD Section TOTAL supply function or giving Materiel Management Section true TOTAL supply function. [n5] 
Proposal #2
2(a)     Management agrees to transfer the current item managers in Acquisition Management Section to SPD Service.
2(b)     The total supply item manager will be a GS-6/7 position.
2(c)     SPD Section current supply technician position GS-5 will be changed from a GS-5 position to a GS-6/7 item manager position.
2(d)     The current GS-5 supply technician's in SPD Section will receive on the job training as total support item managers. [ v56 p33 ]
Proposal #3
3(a)     Management agrees to transfer the two supply technicians GS-5 positions in SPD Section to Materiel Management Section as GS-6/7 total support item manager position.
3(b)     Management will provide on the job training for the Supply Technicians transferred from SPD to Materiel Management Section.

IV.     Analysis and Conclusions

A.     Proposals 1, 2(a), 2(d), and 3(b) AffectManagement's Rights  [n6] 

1.     The Meaning of the Proposals

      In interpreting a disputed proposal, we look to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, then we adopt that explanation for the purpose of construing what the proposal means. See, e.g., National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1026 (1997). In the instant case, the Union did not provide an explanation of the proposals within its petition for review. Consequently, we look to the wording of the proposals.

Proposal 1

      As plainly worded, the proposal would require that management establish the TOTAL supply support function either in SPDS or MMS.

Proposal 2(a)

      As plainly worded, the proposal would require that management assign the item managers currently in AMS to SPDS.

Proposal 2(d)

      As plainly worded, the proposal would require that management provide GS-5 supply technicians, currently in SPDS, on the job training as total support item managers.

Proposal 3(b)

      As plainly worded, the proposal would require that management provide on the job training for the supply technician positions transferred from SPDS to MMS.

2.      Positions of the Parties

a.     Agency

      The Agency essentially argues that certain of the Union's proposals concern management's rights to determine its organization, assign employees, and assign work. Specifically, the Agency maintains that Proposals 1, 2(a), 2(d), and 3(b) limit its right to determine "which Section of the Service the work would be assigned" and also limit its right to determine to "which supervisor of the Service" a particular work function would be assigned. See Statement of Position at 1.

b.     Union

      The Union did not file a response in this case. In its petition for review, the Union states that the Agency must bargain over Proposals 1, 2, and 3 because of Executive Order (E.O.) 12,871 and Article 44 of the parties' Master Agreement. [n7] The Union's statement, in its entirety, is:

The intent of these proposals is to negotiate per Article 44 of the Master Agreement and E.O. 12871.

Petition for Review at 1.

3.     Analytical Framework for Resolving Negotiability Disputes Under Section 7106(a) and (b) of the Statute

      In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 175-76 (1998) (HUD), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of section 7106(a) or section 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under section 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under section 7106(b)(2) and/or (3), as well as being electively negotiable under section 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, [ v56 p34 ] address those claims that would determine if a proposal is electively negotiable. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 54 FLRA 521, 526-28 (1998) (VAMC, Newington).

      In this case, the Union does not dispute the Agency's contention that the proposals affect management's rights under section 7106(a) of the Statute. Therefore, we analyze below whether a claim has been raised and established that the proposals are within the duty to bargain under section 7106(b). [n8] See National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency Eastern Region, Virginia Beach, Virginia, 55 FLRA 370, 371-72 (1999) (NAGE and Defense Commissary).

4.     The Proposals are Not Bargainable Under Section 7106(b)

      The Union's sole argument is that the "intent of these proposals is to negotiate per Article 44 of the Master Agreement and E.O. 12871." See Petition for Review at 1. Assuming that this argument is intended to assert that the proposals are bargainable at the Agency's election under 7106(b)(1), the Union makes no attempt to explain whether or how the proposals concern a matter within that section. In this regard, insofar as the Union's reference to the Executive Order or the Master Agreement can be construed to constitute an assertion under section 7106(b)(1) at all, Authority precedent requires a conclusion that it is a bare assertion and, as such, cannot support a finding that the proposals concern a matter under section 7106(b)(1). See NAGE and Defense Commissary, 55 FLRA at 371-72 (citing VAMC, Newington, 54 FLRA at 528; American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center, and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 610 (1997)). Accordingly, the petition for review as to Proposals 1, 2(a), 2(d), and 3(b) in this case must be dismissed. See VAMC, Newington, 54 FLRA at 528.

B.     Proposals 2(b), 2(c), and 3(a) Concern a Classification Matter Under the Statute

1.     Meaning of the Proposals

Proposal 2(b)

      As plainly worded, the proposal would require that management classify the total supply item manager as a GS-6/7.

Proposal 2(c)

      As plainly worded, the proposal would require that management reclassify the supply technician position currently located in the SPD Section from a GS-5 position to a GS-6/7 item manager position.

Proposal 3(a)

      As plainly worded, the proposal would require that management transfer the two supply technicians GS-5 positions in SPD Section to Materiel Management Section, and reclassify them as GS-6/7 total support item manager positions.

2.     Positions of the Parties

      The Agency asserts that Proposals 2(b), 2(c), and 3(a) involve classification of positions and that nothing in E.O. 12,871 or section 7106(b)(1) of the Statute permits the Union to negotiate classification of positions because classification is a compensation issue that is accomplished using appropriate OPM classification standards. See Statement of Position at 2. See also id. at attached Agency memorandum, dated October 16, 1998 (entitled "Proposals on A&MMS Service Re-organization"). The Union did not respond.

3.     Analysis and Conclusions

      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[.]" 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)(B) of the Statute. See, e.g., American Federation of Government Employees, Local 948 and U.S. Department of Labor, Employment Standards Administration, Office of Workers Compensation Programs, Boston, Massachusetts, 55 FLRA 582, 584 (1999) (AFGE and USDOL) (citing National Association of Government Employees Local R5-168 and U.S. Department of the Army, Fort Polk, Louisiana, 53 FLRA 1622, 1624-25 (1998) (proposal identifying the series and grade into which specified positions are to be [ v56 p35 ] placed "relate[s] to the classification of those positions" and is outside the duty to bargain); 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.".

      Here, Proposal 2(b) would require the position of total supply item manager to be classified as a GS-6/7. Proposal 2(c) would require the supply technician position to be reclassified from a GS-5 to a GS-6/7 manager position. And, Proposal 3(a) would require the supply technician positions in SPD to be classified as GS-6/7 total support item manager positions. Because each of these proposals concerns a classification matter under section 7103(a)(14) of the Statute, the proposals are outside the duty to bargain without regard to management's rights. See AFGE and USDOL, 55 FLRA at 584 (citing American Federation of Government Employees, Local 1978 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 51 FLRA 637, 644 n.10 (1995)). Accordingly, the petition for review as to Proposals 2(b), 2(c), and 3(a) must be dismissed.

V.     Order

      The petition for review is dismissed.


APPENDIX

Executive Order 12,871, Labor-Management Partnerships, issued October 1, 1993(58 Fed. Reg. 52201-52203, Oct. 6, 1993), provides, in relevant part:

Sec. 2.(d) directs the head of each agency to "negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]"

Article 44 of the parties' Master Agreement provides, in relevant part:

B.     In accordance with Executive Order 12871, the Department will bargain on the numbers, types, grades of employees, and positions assigned to any organizational subdivision, work project, tour of duty, and the technology, methods, and means of performing work. Further, Management will not use 5 U.S.C. Section 7106(a) as a means of circumventing its 5 U.S.C. Section 7106(b)(1) bargaining obligations under this Agreement. In the event Executive Order 12871 is rescinded and the Department choose s not to bargain 5 U.S.C. Section 7106(b), either party may reopen this Article to address the 7106(b) issues. However, agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated. Both parties continue to retain their statutory rights.


File 1: Authority's Decision in 56 FLRA No. 3
File 2: Opinions of Chairman Wasserman and Member Segal


Footnote # 1 for 56 FLRA No. 3 - Authority's Decision

   Chairman Wasserman's concurring opinion on Proposals 2(a), and Proposal 3(a), and Member Segal's opinion, concurring in part and dissenting in part, are set forth at the end of this decision.


Footnote # 2 for 56 FLRA No. 3 - Authority's Decision

   The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg.66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.


Footnote # 3 for 56 FLRA No. 3 - Authority's Decision

   The proposals are numbered 1, 2(a), 2(b), 2(c), 2(d), 3(a), 3(b), and 7, according to the Union's numbering scheme. The Agency, in its statement of position, treated each disputed subsection of Proposals 2 and 3 separately. Therefore, we address Proposals 2 and 3 in the same manner. The Agency did not address Proposal 7. As we consider this tantamount to a withdrawal of an allegation of nonnegotiability, we do not consider Proposal 7. See, e.g., National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 618 n.1 (1990) (where agency does not include proposals in its statement of position, the Authority considers the agency to have withdrawn its allegation of nonnegotiability).


Footnote # 4 for 56 FLRA No. 3 - Authority's Decision

   The Union filed a concurrent Unfair Labor Practice charge, CH-CA-90379, which it withdrew on April 23, 1999.


Footnote # 5 for 56 FLRA No. 3 - Authority's Decision

   The "SPD" or "SPDS" (Supply Processing & Distribution) Section is a separate functional section within the Agency's organization. See Statement of Position, attached Agency memorandum, dated April 3, 1998 (entitled "Request Organizational/Classification Change").


Footnote # 6 for 56 FLRA No. 3 - Authority's Decision

   Although the Agency asserts that Proposal 3(a) also a