National Association of Government Employees, Local R1-100 (Union) and United States, Department of the Navy, Naval Submarine Base, Groton, Connecticut (Agency)

[ v61 p480 ]

61 FLRA No. 91

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R1-100
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL SUBMARINE BASE
GROTON, CONNECTICUT
(Agency)

0-NG-2824

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

February 1, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

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 three proposals. The Agency filed a statement of position. The Union did not file a response to the Agency's statement of position.

      For the reasons that follow, we find that the proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.     Background

      The Union submitted the proposals "because the Agency is proceeding with a reorganization and, according to the Union, is using employees to perform duties outside of their position descriptions (PD)." Post-Petition Conference Record (Conference Record) at 1-2. The proposals pertain to "seven to ten bargaining unit employees at the Agency's Fleet Family Center." Id. at 1.

III.      Proposal 1 [n2] 

Employees['] position descriptions be amended if assignments are outside the (PD) before assignment is carried out.

A.      Positions of the Parties

1.      Agency

      The Agency contends that Proposal 1 affects management's right to assign work under § 7106(a)(2)(B) of the Statute because it would prevent the Agency from assigning any work not contained in an employee's position description (PD). See Statement of Position (SOP) at 5-6, 9. The Agency also contends that the proposal affects management's rights to assign and direct employees under § 7106(a)(2)(A) because it would permit employees to decline to perform work assignments not contained in the PD. See id. at 4, 5 and 8. In addition, the Agency contends that the proposal is not a negotiable procedure under § 7106(b)(2).

      Finally, the Agency contends that the proposal is outside the duty to bargain because matters relating to PDs are covered by the collective bargaining agreement. See id. at 9.

2.      Union

      In its petition for review, the Union explains that Proposal 1 addresses the current work situation where the "Agency is putting more and more on employees with no work added to [the] PD." Petition for Review at 4.

B.      Analysis and Conclusions

1.      Meaning of Proposal 1

      The parties dispute the meaning of the Union's proposal. When interpreting a disputed proposal, the Authority looks first to the proposal's wording and the union's statement of intent. If the union's explanation of the proposal's meaning comports with the wording, then that explanation is adopted for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. See AFGE, Local 1900, 51 FLRA 133, 138-39 (1995) (Local 1900).

      By its wording, Proposal 1 would require the Agency to amend a PD before assignments that are not in the PD are carried out. The parties disagree over the meaning of the term "assignments." The Union refers to [ v61 p481 ] the term "assignments" as "duties." Conference Record at 2. According to the Agency, "the Union's use of the term `duties' is inconsistent with the language of the proposal, which clearly states `assignment[.]'" SOP at 7.

      The parties also disagree over how the proposal would apply in an emergency situation. The Union states that the "proposal would not preclude the Agency from acting in an emergency circumstance as the duty could be undertaken prior to amendment if an emergency arises." Conference Record at 2. The Agency argues that, during the parties' discussions, the Union never "fully acquiesced" that in an emergency the proposal would not require the Agency to amend a PD before imposing assignments that are not in the PD. SOP at 3.

      The Union's explanation that the term "assignments" means "duties," and its explanation that the proposal would not require the Agency to amend a PD before imposing assignments that are not in the PD in the context of an emergency, comport with the wording of the proposal. Consequently, we adopt the Union's explanation of the meaning of the proposal.

      Accordingly, based on the proposal's wording and the Union's explanation, we interpret the proposal as requiring the Agency to amend a PD before assigning duties that are not in the PD. We further find that, in an emergency, the Agency would not be under an obligation to amend the PD before imposing duties not in the PD. As such, we find that, in circumstances that do not constitute an emergency situation, the proposal would prohibit management from assigning duties unless or until the PD is amended to include the specific duties. [n3] 

2.      Proposal 1 is outside the duty to bargain

      The parties dispute whether the proposal affects various management rights. As the Union makes no claim that Proposal 1 constitutes either a negotiable procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b) (3) of the Statute, we address only whether the proposal affects the asserted management rights.

      It is well established that the right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). Moreover, the Authority has held that proposals prescribing when a management right may be exercised constitute substantive limitations on the exercise of that right. AFGE, Local 1345, 48 FLRA 168, 174 (1993) (Member Armendariz concurring and dissenting on other grounds) (Fort Carson) (citing Dep't of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988) (IRS), reversed and remanded as to other matters, 494 U.S. 922 (1990). See also United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988)).

      In Fort Carson, the proposal effectively prohibited management from assigning any task, no matter how small or large, unless the specific task was currently listed in the PD. In finding that the proposal affected the agency's right to assign work under § 7106(a)(2)(B), the Authority noted that the bargaining unit included medical personnel who reasonably could be required to respond rapidly to a variety of medical situations. The Authority found that even in circumstances which did not constitute medical emergencies, requiring the agency to amend PDs before assigning work could effectively prohibit such assignments, and therefore the proposal affected management's right to assign work under § 7106(a)(2)(B).  [n4] 

      Proposal 1 is similar to the proposal in Fort Carson. In circumstances that do not constitute an emergency situation, Proposal 1 would prohibit management from assigning duties unless or until the PD is amended to include the specific duties. Consistent with Fort Carson, because Proposal 1 determines when management may exercise its right to assign work under § 7106(a)(2)(B), we find that the proposal affects management's exercise of its right to assign work under § 7106(a)(2)(B). See Fort Carson, 48 FLRA at 174-75.

      In sum, we find that Proposal 1 is outside the duty to bargain. [n5] 

IV.     Proposal 2

Employer will supply all statistical data relied upon to develop performance standards of all the bargaining unit members['] new position descriptions. [ v61 p482 ]

A.      Positions of the Parties

1.      Agency

      The Agency contends that Proposal 2 affects management's internal deliberative process with respect to the exercise of its rights under § 7106(a) of the Statute. The Agency states that the proposal "is tantamount to requesting to observe management's deliberative process . . . in reaching decisions and acting on management's rights under section 7106(a)." SOP at 13. The Agency also asserts that "the proposal would allow the substitution of actual observance with the Agency's obligation to provide notes and other documents memorializing management discussions and deliberations in exercising its substantive rights, and to provide these deliberations to the Union for examination prior to exercising its section 7106(a) rights." SOP at 15. In this latter connection, the Agency points to the Union's statement, at the post-petition conference, requiring that the information specified in the proposal "be provided before any change[s] to employees' position descriptions, critical elements, and performance standards." Id. at 13. The Agency adds that the proposal does not constitute a negotiable procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3).

      In addition to its management rights claim, the Agency raises a bargaining obligation claim as to Proposal 2. [n6] In this connection, the Agency contends that the proposal is outside the duty to bargain because matters relating to requests for information and performance appraisals are covered by the collective bargaining agreement. The Agency also asserts that Proposal 2 should be withdrawn because it is "premature." SOP at 14. The Agency states that it "has not developed new performance standards or critical elements for the employees subject to these negotiations and the parties are not bargaining performance standards, critical elements, or position descriptions." Id.

2.      Union

      At the post-petition conference, the Union stated that Proposal 2 "is necessary because employees' PDs are generic and do not include all the duties assigned[.]" See Conference Record at 2. The Union further stated that it desires "to make sure that employees have reasonable and attainable performance standards." Id. The Union also contends that the proposal constitutes a negotiable procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3). See id.

B.      Analysis and Conclusions

1.      Meaning of Proposal 2

      The parties agree that Proposal 2 requires the Agency to provide any statistical data that the Agency relied upon to establish an employee's performance standards, critical elements and PD. See Conference Record at 2. The parties also agree that the proposal requires the Agency to provide any "deliberations" the Agency relied upon to establish an employee's performance standards, critical elements and PD. Id. The parties further agree that the proposal would require the Agency to provide statistical data and deliberations prior to the Agency changing any of the performance standards, critical elements or PDs. See id. Accordingly, based on its terms, and as explained by the parties, we interpret the proposal as requiring the Agency to provide any statistical data and deliberations that the Agency relied upon to establish an employee's performance standards, critical elements or PD before the Agency changes the performance standards, critical elements or PD.

2.      Proposal 2 is outside the duty to bargain

      "The Authority has made clear that, `[w]here a bargaining obligation arises by virtue of an agency changing conditions of employment, the [a]gency is required to bargain only over negotiable proposals addressing those changes.'" United States Dep't of the Treasury, Customs Serv., Washington, D.C., 59 FLRA 703, 709 (2004); aff'd sub nom, NTEU v. FLRA, 414 F.3d 50, 59-60 (D.C. Cir. 2005) (quoting United States Dep't of Health and Human Services, SSA, Baltimore, Md., 39 FLRA 258, 262 (1991)). In this regard, proposals that do not address the particular change proposed are outside the duty to bargain. Id.

      The Agency argues that Proposal 2 is outside the duty to bargain because: (1) its bargaining obligation is limited to proposals concerning the impact and implementation of the Agency's reorganization; and (2) the reorganization has not effected changes in performance standards or critical elements. The Union confirms that its proposals have been made because the Agency is "proceeding with a reorganization" and also claims that the Agency is assigning employees "to perform duties outside of their position descriptions." Conference Report at 1-2. Nothing in the Union's position or the record indicates that the changes in working conditions at issue concern performance standards. As Proposal 2 concerns statistical data relied on to develop performance standards, it does not address any change proposed by the Agency. Applying the above precedent, [ v61 p483 ] the proposal is, therefore, outside the duty to bargain and we do not address the Agency's additional claims. [n7] 

V.     Proposal 3

Employer will negotiate procedure and appropriate arrangement prior to imposing additional administrative work requirements.

A.      Positions of the Parties

1.      Agency

      The Agency argues that Proposal 3 is not within the duty to bargain because it affects management's right to determine when work that has been assigned can be performed. The Agency argues that the proposal delays the assignment of any work until after the completion of bargaining, including work essential to the Agency's mission that is not included in the PD and work that has no more than a de minimis impact on working conditions. See SOP at 20. In support, the Agency cites NAGE, Local R1-109, 53 FLRA at 419-421 (Proposal 11).

      The Agency notes that management is required to negotiate decisions that have more than a de minimis impact on working conditions, citing SSA, Office of Hearings and Appeals, Charleston, S.C., 59 FLRA 646 (2004) (Member Armendariz concurring and Member Pope dissenting), petition for review denied sub nom. Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO v. FLRA, 397 F.3d 957 (D.C. Cir. 2005). The Agency argues that the "establishment of a job requirement by itself does not change conditions of employment or adversely affect employees within the meaning of § 7106(b)(3)." SOP at 20.

2.      Union

      At the post-petition conference, the Union "link[ed]" Proposal 3 to Proposal 1 and "interprets [Proposal 3] as first requiring the Agency to amend an employee's position description when it assigns an employee new duties." Conference Record at 2. The Union contends that the proposal constitutes a negotiable procedure under § 7106(b)(3) or an appropriate arrangement under § 7106(b)(2). See Petition for Review at 9.

B.      Analysis and Conclusions

1.      Meaning of Proposal 3

      The parties dispute the meaning of the Union's proposal. As noted, when interpreting a disputed proposal, the Authority looks first to the proposal's wording and the union's statement of intent. If the union's explanation of the proposal's meaning comports with the wording, then that explanation is adopted for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. See AFGE, Local 1900, 51 FLRA at 138-39.

      By its wording, the proposal provides that the Agency will negotiate procedures and appropriate arrangements prior to imposing additional administrative work requirements. The parties disagree over the meaning of the term "additional administrative work requirements[.]" The Union refers to the term "additional administrative work requirement" as "additional duties assigned to an employee that are not contained in the employee's PD." Conference Record at 2. According to the Agency, the term additional "administrative work requirement" refers to "assignments" and not duties. SOP at 18. The Union's explanation comports with the wording of the proposal. Consequently, we adopt the Union's explanation of that term.

      Although the proposal is silent on the matter, the parties agree that it incorporates the requirement in Proposal 1 "as first requiring the Agency to amend an employee's position description when it assigns an employee new duties." Conference Record at 2.

      Accordingly, based on its wording and the Union's explanation of the proposal, we interpret Proposal 3, pursuant to Proposal 1, as first requiring the Agency to amend the PD and, thereafter, by the plain terms of Proposal 3, requiring the parties to bargain over procedures and appropriate arrangements prior to imposing additional duties not in the PD. See id. Consistent with the Union's interpretation of Proposal 1 adopted above, we also interpret Proposal 3 as providing that, in an emergency, the Agency would not be under an obligation to undertake these requirements before imposing additional duties not in the PD.

      Thus, we find that, in circumstances that do not constitute an emergency situation, Proposal 3, like Proposal 1, would prohibit management from assigning [ v61 p484 ] duties unless or until the PD is amended to include the specific duties, even though it allows for bargaining prior to the assignment.

2.      Proposal 3 is outside the duty to bargain

      Proposal 3 incorporates a requirement contained in Proposal 1. Also as noted above, the Union "link[s]" Proposal 3 to Proposal 1. Conference Record at 2. The negotiability of Proposal 3, therefore, is inextricably intertwined with the negotiability of Proposal 1. Because we find that Proposal 1 is outside the duty, we also find that Proposal 3 is outside the duty to bargain. See International Federation of Professional and Technical Engineers, Local 49, 52 FLRA 813, 821 (1996).

      We note that the Authority has found that proposals that would delay the exercise of a management right pending the completion of bargaining, negotiated grievance procedures, or statutory appeals procedures are within the duty to bargain. See, e.g., NAGE, Local R4-45, 55 FLRA 995, 997 (1999); AFGE, Local 3258, 48 FLRA 232, 241 and 242 (1993). However, Proposal 3 is distinguishable from those proposals. Like Proposal 1, Proposal 3 precludes management from exercising its right to assign work unless or until the PD is amended to include the specific duties.

      The Union asserts that the proposal constitutes a procedure and an appropriate arrangement. However, the Union provides no argument or authority to support its assertions that this proposal constitutes a procedure or an appropriate arrangement under § 7106(b)(2) and (3) of the Statute. Consistent with Authority precedent, the Union's claim is a bare assertion and is denied. See LIUNA, Local 28, 58 FLRA 605, 607 (2003); Tidewater Virginia, Federal Employees Metal Trades Council, 58 FLRA 561, 563 (2003).

      Therefore, we find that, as Proposal 3 is inextricably intertwined with Proposal 1, which is outside the duty to bargain, Proposal 3 is outside the duty to bargain as well.

VI.     Order

      The petition for review is dismissed.


File 1: Authority's Decision in 61 FLRA No. 91
File 2: Opinion of Member Armendariz


Footnote # 1 for 61 FLRA No. 91 - Authority's Decision

   Member Armendariz's concurring opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 91 - Authority's Decision

   The proposals are numbered consecutively for the convenience of the reader.


Footnote # 3 for 61 FLRA No. 91 - Authority's Decision

   As explained in our disposition of Proposal 3 set forth below, that proposal contains the same requirement that is in Proposal 1.


Footnote # 4 for 61 FLRA No. 91 - Authority's Decision

   The Authority also noted that the union did not assert that the proposal constituted an appropriate arrangement. See Fort Carson , 48 FLRA at 175. However, the Authority added that, in an analogous situation, a proposal was found not to be an appropriate arrangement based on its excessive interference with the right to assign work. Id. (citing NFFE, Local 1214, 45 FLRA 1121, 1129-31 (1992)).


Footnote # 5 for 61 FLRA No. 91 - Authority's Decision

   In view of this result, it is unnecessary to address the Agency's additional arguments.


Footnote # 6 for 61 FLRA No. 91 - Authority's Decision

   The Agency made no such claim with respect to Proposals 1 and 3.


Footnote # 7 for 61 FLRA No.