Tidewater Virginia, Federal Employees, Metal Trades Council (Union) and United States, Department of the Navy, Navy Public Works Center, Norfolk, Virginia (Agency)

[ v58 p561 ]

58 FLRA No. 137

TIDEWATER VIRGINIA
FEDERAL EMPLOYEES
METAL TRADES COUNCIL
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
(Agency)

0-NG-2686

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

May 28, 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 one proposal relating to a new requirement for the WG-6 Hazardous Waste Disposer (HWD) position. The Agency filed a statement of position to which the Union filed a response, and the Agency filed a reply to the Union's response.

      For the reasons that follow, we find the first and second sentences of the proposal to be outside the duty to bargain, and accordingly, dismiss the petition with respect to those sentences. In addition, we find the third sentence of the proposal to be negotiable only at the election of the Agency.

II.     Proposal

Hazardous Waste Disposer WG-6913-06 that has Class C CDL requirements will be upgraded to Hazardous Waste Disposer WG-6913-07. Hazardous Waste Disposer WG-6913-06 who do not have Class C CDL requirements will be afforded the opportunity to be trained to receive the Class C CDL requirements and on completion of the training will be upgraded to Hazardous Waste Disposer WG-6913-07. Hazardous Waste Disposer WG- 6913-06 who do not receive the Class C CDL requirements will remain as WG-6913-06.

III.     Meaning of the Proposal

      The parties agree that the first sentence of the proposal would require WG-6 HWDs who currently possess a Class C Commercial Drivers License (CDL) to be upgraded to WG-7 HWD positions. The parties also agree that the second sentence would require the Agency to pay for training for employees who are required to obtain a Class C CDL, and to upgrade those employees to WG-7 HWD positions on completion of the training. In addition, the parties agree that the third sentence would prohibit the Agency from terminating current WG-6 HWDs who fail to get a Class C CDL.

IV.     Positions of the Parties

A.     Union

      The Union requests severance of the first and third sentences from its proposal. Regarding the first sentence, the Union contends that its meaning is separate and different from the rest of the proposal because employees with a Class C CDL will be required to perform higher-level work without being compensated. Regarding the third sentence, the Union asserts that employees who cannot obtain a Class C CDL should not be terminated.

      The Union contends that the entire proposal concerns types of positions under § 7106(b)(1) of the Statute and is a procedure under § 7106(b)(2). The Union also contends that the Agency violated Articles 3, § 3 and 8, §§ 4 and 5 of the parties' agreement, by withdrawing from negotiations over the Class C CDL requirement. [n1] 

B.     Agency

      The Agency opposes the Union's request for severance. According to the Agency, severing the proposal amounts to rewriting the proposal and "entirely changing [its] meaning. . . ." Statement of Position at 9. The Agency contends that even if the proposal is severed, each sentence is nonnegotiable because sentence one [ v58 p562 ] involves a classification issue and sentence three interferes with management's rights to assign work, hire and layoff employees, and fill positions from an appropriate source. The Agency also argues that the Union's response to the Agency's statement of position did not address the Agency's opposition to severance and, therefore, the Union has conceded the Agency's argument.                                   

      The Agency contends that the entire proposal is excluded from the duty to bargain because the proposal's requirement to upgrade WG-6 HWDs who possess a Class C CDL to WG-7 HWD positions involves a classification matter under § 7103(a)(14)(B) of the Statute. The Agency also contends that the proposal affects various management rights. In this regard, the Agency argues that the proposal affects its right to: (1) determine its organization; (2) hire, assign, direct and layoff employees; (3) assign work and determine the personnel by which agency operations will be conducted; and (4) fill positions and make selections under § 7106(a)(1) and (a)(2)(A), (B), and (C) of the Statute, respectively. The Agency claims that the proposal is not a procedure under § 7106(b)(2) of the Statute.

      In addition, the Agency asserts that although the proposal "deals with the numbers, types and grades of employees or positions assigned to any organizational subdivision" and, therefore, concerns a matter negotiable at the election of the Agency under § 7106(b)(1), the Agency exercised its right not to negotiate as provided in Article 3, § 2 of the parties' agreement. [n2]  Id. at 8. According to the Agency, the fact that it notified the Union of the Class C CDL requirement does not constitute a waiver of its rights under § 7106(b)(1). The Agency also contends that its withdrawal from negotiations did not violate the parties' agreement.

V. Analysis and Conclusions

A.     We grant, in part, and deny, in part, the Union's severance request.

      Under § 2424.22(c) of the Authority's Regulations, a union "must support its [severance] request with an explanation of how each severed portion of the proposal . . . may stand alone, and how such severed portion would operate." See Ass'n of Civilian Technicians, Wichita Air Capitol Chapter, 57 FLRA 939, 941 (2002) reconsideration denied, 58 FLRA 310 (2003), petition for review filed as to other matters, No. 03-1083 (D.C. Cir. Mar. 21, (2003). If the severance request meets the Authority's regulatory requirements, then the Authority severs the proposal and rules on the negotiability of its separate components. AFGE, Local 3354, 54 FLRA 807, 811 (1998).

      The Union contends, and the record demonstrates, that the separate sentences in the proposal have different meanings and can stand alone. [n3]  In this regard, the first and second sentences relate to employees with a Class C CDL, and the third sentence relates to those employees who cannot obtain a CDL. Similarly, the first and second sentences require the Agency to upgrade certain employees and the third sentence prohibits the Agency from terminating others. Although the Agency contends that severance will change the meaning of the proposal, the Agency does not explain how the meaning would change. In addition, the Agency's argument that the separate sentences are independently outside the duty to bargain does not demonstrate that the sentences cannot operate independently. In these circumstances, we grant, in part, the Union's severance request and separately address the negotiability of the first two sentences and sentence three of the proposal. [n4] 

B.     The first and second sentences concern a classification matter under the Statute.

      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. The Authority consistently has held that a proposal that assigns a specific grade level to a position concerns a classification matter under § 7103(a)(14)(B) of the Statute. [ v58 p563 ] See Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 382-83 (2001) (FOP); AFGE, Local 948, 55 FLRA 582, 584 (1999).

      The first and second sentences of the proposal would have the effect of reclassifying HWDs who possess, or obtain in the future, a Class C CDL from WG-6 to WG-7. As such, the first and second sentences involve a classification matter under § 7103(a)(14)(B) of the Statute and, therefore, do not concern a condition of employment. See FOP, 57 FLRA at 382-83. Accordingly, we find that these sentences are outside the duty to bargain without regard to management's rights. See AFGE, Local 2031, 56 FLRA 32, 35 (2000) (AFGE, Local 2031). [n5] 

C.     The third sentence is negotiable only at the election of the Agency. [n6] 

1.     Analytical framework for resolving negotiability disputes under § 7106(a) and (b) of the Statute.

      In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998), 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 § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain. Then, if necessary, the Authority will address those claims that would determine if a proposal is electively negotiable. See, e.g., NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998). Consistent with this sequence, we first consider whether the third sentence affects a management right under § 7106(a).

2.     The third sentence affects management's right to layoff employees.

      The Union does not dispute the Agency's claim that the third sentence affects management's right to layoff employees under § 7106(a)(2)(A) of the Statute. Accordingly, we find that the third sentence affects that right. See NFFE, Local 1904, 57 FLRA 28, 29 (2001).

3.     The third sentence does not constitute a procedure under § 7106(b)(2).

      Section 2424.25(c)(1)(ii) of the Authority's Regulations provides that a union's response to an agency's statement of position "must state the arguments and authorities supporting . . . any assertion that an exception to management rights applies, including . . . [w]hether and why the proposal" constitutes a procedure. Here, the Union's only support for its assertion that the proposal constitutes a procedure is that the Agency changed the employees' conditions of employment by requiring them to possess a Class C CDL and, thereby, to perform additional duties. See Union Response at 2. Other than this statement, the Union does not support its assertion that the proposal constitutes a procedure within the meaning of § 7106(b)(2). Consistent with Authority precedent, we reject the Union's claim as a bare assertion. See AFGE, Local 2031, 56 FLRA at 34.

4.     The third sentence concerns a matter within the meaning of § 7106(b)(1).

      The Union argues that the proposal concerns types of positions within the meaning of § 7106(b)(1). See Union Response at 2. The Agency concedes that the proposal concerns a matter under § 7106(b)(1), arguing only that it has not elected to bargain on such matters. See Statement of Position at 9. As the Agency does not contest the Union's argument that the proposal concerns types of positions within the meaning of § 7106(b)(1) of the Statute, we conclude that the third sentence is negotiable only at the election of the Agency. See AFGE, Local 1164, 55 FLRA 999, 1004 (1999).

D.     The parties' dispute as to the Agency's bargaining obligation under the parties' agreement does not raise a bargaining obligation dispute within the meaning of 5 C.F.R. § 2424.30.

      The Union asserts, and the Agency denies, that the Agency violated Articles 3, § 3 and 8, §§ 4 and 5 of the parties' contract by withdrawing from negotiations. [ v58 p564 ]

      Relying on § 2424.30 of its Regulations, the Authority has held that the bargaining obligation disputes that are appropriately resolved in a negotiability proceeding are limited to those concerning an obligation to bargain under the Statute. [n7] / See Nat'l Ass'n of Agric. Employees, Branch 11, 57 FLRA 424, 427 (2001). Here, the parties' dispute involves only whether the Agency is required to bargain under the parties' agreement; it does not involve the Agency's obligation to bargain under the Statute. See AFGE, Local 3694, 57 FLRA 172, 176 (2001). Consequently, we find that there is no basis for addressing the Union's claim.

VI.     Order

      The petition for review is dismissed with regard to the first and second sentences of the proposal. The third sentence of the proposal is negotiable only at the election of the Agency.



Footnote # 1 for 58 FLRA No. 137 - Authority's Decision

   Article 3, § 3 provides that "the [Agency] and the [Union] will negotiate on the impact and procedures which the [Agency] will observe in exercising any authority in this [a]rticle." Article 8, §§ 4 and 5 provide, in pertinent part, that when the parties agree to negotiate over a matter, the parties "will set a mutually agreeable date" and will schedule negotiations "during normal day shift working hours."


Footnote # 2 for 58 FLRA No. 137 - Authority's Decision

   Article 3, § 2 of the parties' agreement provides, in pertinent part, that:

The [Agency] elects not to consult or negotiate the numbers, types, and grades of employees or positions assigned to any organizational subdivision . . . .

Footnote # 3 for 58 FLRA No. 137 - Authority's Decision

   The Union requests severance of the first and third sentences, but does not explain its view of the status of the second sentence if severance is granted. We note that sentence two, like the first sentence, requires, in part, that WG-6 HWDs who possess the Class C CDL be upgraded to WG-7 HWD positions and that the Union's arguments regarding the first sentence apply to the second sentence. Therefore, insofar as the Union is requesting that the first sentence be severed from the second, we deny the request. Instead, as the second sentence closely relates to the first sentence, we consider the two sentences together.


Footnote # 4 for 58 FLRA No. 137 - Authority's Decision

   We also reject the Agency's contention that by failing to respond to the Agency's statement of position, which opposed the Union's request for severance, the Union conceded that the proposal should not be severed. As stated in the Authority's Regulations, a failure to respond to an argument is deemed a concession only "where appropriate." 5 C.F.R. § 2424.32(c)(2). Here, the Agency's arguments opposing severance disputed the Union's request in its petition but did not otherwise raise an assertion requiring a response from the Union. Therefore, we conclude that finding a concession is not appropriate.


Footnote # 5 for 58 FLRA No. 137 - Authority's Decision

   In view of this, we also find, with respect to the first and second sentences, that it is unnecessary to address the arguments concerning § 7106. See AFGE, Local 948, 55 FLRA at 584.