Fraternal Order of Police, Local 158 (Union) and United States, Department of the Navy, NAVSEA Crane Division Naval Surface, Warfare Center, Crane, Indiana (Agency)

[ v58 p371 ]

58 FLRA No. 89

FRATERNAL ORDER OF POLICE
LOCAL 158
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
NAVSEA CRANE DIVISION NAVAL SURFACE
WARFARE CENTER, CRANE, INDIANA
(Agency)

0-NG-2669

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

March 12, 2003

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a single proposal relating to a hazard pay differential. The Agency filed a statement of position, the Union filed a response, and the Agency filed a reply to that response.

      For the following reasons, we dismiss the petition for review.

II.     Proposal  [n1] 

Employees will receive hazard pay differentials in accordance with 5 C.F.R. 550.901-907 and Appendix A when they respond to any incident in the proximity of an explosive manufacturing building or a toxic chemical storage building; process a vehicle carrying explosives onto center prior to the vehicle being inspected by qualified NSWC explosive handling personnel; escort a vehicle carrying explosives; or physically check the security of any building where explosives or toxic chemicals are manufactured or stored.

III.     Positions of the Parties

A.     Agency

      According to the Agency, the proposal requires the Agency to pay police officers a hazard pay differential under 5 U.S.C. § 5545(d) and 5 C.F.R. §§ 901-907. [n2] Specifically, citing § 5545(d), the Agency asserts that employees are not entitled to hazardous duty pay if the classification of their positions takes into account the hazard involved in the performance of the duties of those positions. Citing the position description of the police officers covered by the disputed proposal, and an affidavit by the Position Classification Specialist who classified their positions, the Agency contends that the hazards referenced in the proposal were taken into account in the classification of their positions.

      Based on these factors, the Agency maintains that the proposal is outside the duty to bargain under § 7103(a)(14)(B) of the Statute. In particular, the Agency claims that the parties' dispute in this case concerns whether particular hazards involved in the performance of employees' duties were considered, and given appropriate weight, in the classification of their positions. According to the Agency, the Union is challenging the Agency's classification determination and such a dispute concerns matters related to the classification of police officers' positions. Therefore, the Agency asserts, under § 7103(a)(14)(B), the dispute is not properly before the Authority. [n3]  The Agency also maintains that the case does not involve a dispute as to the accuracy of the police officers' position descriptions.

      The Agency also contends that the proposal is inconsistent with 5 C.F.R. § 904, which precludes payment of a hazard differential to employees where the hazard has been taken into account in the classification of their positions.

      Finally, the Agency objects to severance of the proposal because each segment is nonnegotiable for the same reasons. [ v58 p372 ]

B.     Union

      The Union claims that the classification of the positions of the police officers covered by the disputed proposal does not take into account the specified hazards involved in the performance of the duties of those positions. Referencing OPM's Classifier's Handbook, the Union contends that the police officers' position description does not include knowledge, skills, and abilities related to handling hazardous materials. The Union argues that under 5 C.F.R. § 550.904(b), the head of an agency may authorize hazard pay if, using the knowledge, skills, and abilities set forth in their position descriptions, employees cannot control the level of the hazard.

      Noting advice provided the Agency by OPM to the effect that employees could file a classification appeal if they believed their positions are not properly classified, the Union cites OPM's Classifier's Handbook and argues that the issue presented by the proposal does not fall within any of the appealable categories listed therein. See OPM Letter to Union, dated March 18, 2002, (OPM Letter), Attachment 1 to Union's Response. In this regard, the Union quotes that handbook as precluding appeals as to the accuracy of a position description and claims that the accuracy of the police officers' position descriptions is the subject matter of the dispute in this case.

      The Union requests that the proposal be severed into separate portions related to the specific circumstances proposed as entitlements to hazard pay. According to the Union, employees may or may not have the knowledge, skills, and abilities to deal with each of those circumstances.

IV.     Analysis and Conclusions

A.     Meaning of the Proposal

      As explained by the Union, the proposal would allow employees to receive hazard pay in the particular circumstances described in the proposal. The Union further explains that "the proposal is intended to resolve the issue of whether the hazardous duties set forth in the proposal were taken into account in the classification of the employees' position and would preclude the Agency from raising this issue." Report of Post-Petition Conference at 2. The Agency does not dispute the Union's explanation. Accordingly, we adopt the Union's explanation for purposes of this decision. See, e.g., AFGE, Local 1164, 55 FLRA 999, 1002 (1999).

B.     The Proposal Concerns a Matter Relating to Classification under § 7103(a)(14)(B) of the Statute

      The proposal is outside the duty to bargain because it concerns a matter concerning classification within the meaning of § 7103(a)(14)(B) of the Statute.

      Under 5 U.S.C. § 5545(d)(1), the hazard pay differential provided by 5 U.S.C. § 5545(d) "does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except in such circumstances as [OPM] may by regulation prescribe . . . ." 5 U.S.C. § 5545(d)(1). The parties dispute the extent to which the current position classifications of police officers take the particular hazards described in the proposal into consideration. Resolution of that dispute would involve review of a classification matter. In this regard, the dispute does not involve the accuracy of officers' position descriptions, but, instead, concerns the significance of the duties set forth in their position descriptions for the classification of their positions. [n4]  Consequently, the negotiability dispute in this case concerns classification issues that are excluded from the definition of conditions of employment, and the proposal is outside the duty to bargain under § 7103(a)(14)(B). See NFFE, Local 862, 3 FLRA 455 (1980).

      Accordingly, we find that the proposal concerns a classification matter that is excluded from the definition of conditions of employment under § 7103(a)(14)(B) and is, therefore, outside the duty to bargain. [n5] 

V.      Order

      The petition for review is dismissed. [n6]  [ v58 p373 ]


APPENDIX

1. 5 U.S.C. § 5545(d) provides as follows:

§ 5545. Night, standby, irregular, and hazardous duty differential
     . . . .
(d) The Office shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard. Under such regulations as the Office may prescribe, and for such minimum periods as it determines appropriate, an employee to whom chapter 51 applies and subchapter III of chapter 53 of this title applies is entitled to be paid the appropriate differential for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position. However, the pay differential-
(1) does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except in such circumstances as the Office may by regulation prescribe; and
(2) may not exceed an amount equal to 25 percent of the rate of basic pay applicable to the employee.

2. 5 C.F.R. § 550.904 provides as follows:

§ 550.904. Authorization of hazard pay differential.
(a) An agency shall pay the hazard pay differential listed in appendix A of this subpart to an employee who is assigned to and performs any duty specified in appendix A of this subpart. However, hazard pay differential may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his or her position, without regard to whether hazardous duty or physical hardship is grade controlling, unless payment of a differential has been approved under paragraph (b) of this section.
(b) The head of an agency may approve payment of a hazard pay differential when--
(1) The actual circumstances of the specific hazard or physical hardship have changed from that taken into account and described in the position description; and
(2) Using the knowledge, skills, and abilities that are described in the position description, the employee cannot control the hazard or physical hardship; thus, the risk is not reduced to a less than significant level.
(c) For the purpose of this section, the phrase "has been taken into account in the classification of his or her position" means that the duty constitutes an element considered in establishing the grade of the position--i.e., the knowledge, skills, and abilities required to perform that duty are considered in the classification of the position.
(d) The head of the agency shall maintain records on the use of the authority described in paragraph (b) of this section, including the specific hazardous duty or duty involving physical hardship; the authorized position description(s); the number of employees paid the differential; documentation of the conditions described in paragraph (b) of this section; and the annual cost to the agency.
(e) So that OPM can evaluate agencies' use of this authority and provide the Congress and others with information regarding it use, each agency shall maintain such other records and submit to OPM such other reports and data as OPM shall require.



Footnote # 1 for 58 FLRA No. 89 - Authority's Decision

   The wording of the proposal is as modified during the Post-Petition Conference. See Report of Post-Petition Conference, May 24, 2002, at 2.


Footnote # 2 for 58 FLRA No. 89 - Authority's Decision

   The relevant portions of 5 U.S.C. § 5545 and 5 C.F.R. Part 550, Subpart I are set forth in the Appendix to this decision.


Footnote # 3 for 58 FLRA No. 89 - Authority's Decision

   The Agency cites NFFE, Local 862, 3 FLRA 455 (1980), in which the Authority held, based on an advisory opinion from the Office of Personnel Management (OPM), that a proposal authorizing hazard pay differential for certain classes of employees concerned a matter related to the classification of positions under § 7103(a)(14)(B).


Footnote # 4 for 58 FLRA No. 89 - Authority's Decision

   We note, in this connection, that OPM pointed out in its Letter to the Union, that the Position Classification Standard for Police and Security Guard positions takes into account "the degree of physical hardship and hazards associated with the occupation." OPM Letter at 1.