51:0526(46)NG - - Intl. Federation of Professional and Technical Engineers, Local 49 and Army Corps of Engineers, South Pacific Division - - 1995 FLRAdec NG - - v51 p526
[ v51 p526 ]
The decision of the Authority follows:
51 FLRA No. 46
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, LOCAL 49
U.S. DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
SOUTH PACIFIC DIVISION
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
November 20, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal requests an Authority determination on the negotiability of one bargaining proposal, which would require the parties to use a particular Agency job description form (DA Form 374, dated June 1, 1976) to document certain agreements reached during negotiations over a reorganization. For the reasons which follow, we find that the proposal is within the duty to bargain.
Department of the Army Job Description (DA Form 374 dated 1 June 1976) will be used by the parties as the document to capture agreements made during negotiations regarding bargaining under the Statute and Executive Order 12871 regarding the on-going negotiations on the reorganization of the Directorate of Programs and Project Management, South Pacific Division, US Army Corps of Engineers.
III. Positions of the Parties
The Agency asserts that the Union's petition for review is untimely because the proposal in this case is identical to a proposal previously declared nonnegotiable by the Agency. On the merits, the Agency disputes the Union's claim that the wording of the proposal requires that DA Form 374 be used only "wherever possible and/or applicable." Statement of Position at 3. The Agency contends that the Union's claim is inconsistent with the wording of the proposal which states that the form "will be used." Id. The Agency also argues that the proposal does not concern conditions of employment because it: (1) relates to the classification of positions, which is excluded from the definition of conditions of employment under section 7103(a)(14)(B) of the Statute; and (2) requires bargaining over the content of job descriptions for supervisory personnel. Finally, the Agency contends that, the proposal requires the Agency to assign specific duties and responsibilities to specific employees and, thereby, directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute.
The Union asserts that the petition for review was filed in a timely manner. The Union also asserts that the proposal requires that DA Form 374 be used as the document on which to capture agreements "wherever possible and/or applicable[.]" Petition for Review at 1. According to the Union, the proposal does not concern the job content of supervisory positions or classification matters.
IV. Analysis and Conclusions
A. The Petition for Review Was Timely Filed
We reject the Agency's claim that the Union's petition for review is untimely because it involves a proposal identical in wording to a proposal previously declared nonnegotiable. The proposal in this case, which addresses a reorganization of the Agency's Directorate of Programs and Project Management, South Pacific Division, U.S. Army Corps of Engineers, was declared nonnegotiable by the Agency and the Union responded by timely filing a petition for review. The previous proposal declared nonnegotiable by the Agency concerned a reorganization of the Agency's South Pacific Division Laboratory, Sausalito, California. Nothing in the Statute precludes a union from submitting, in a different set of negotiations with a different Agency component, a proposal with the same wording as one previously alleged to be nonnegotiable. In this regard, the Agency's reliance on American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990 (1987), rev'd as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Closed Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. Aug. 9, 1990), is misplaced. That case concerned, as relevant here, proposals substantially similar to proposals previously alleged to be nonnegotiable in the same negotiations with the same agency component.
B. The Proposal is Within the Duty to Bargain
The Agency claims that the plain wording of the proposal is "quite different" from the Union's statement that the proposal requires that DA Form 374 will be used "'wherever possible and/or applicable.'" Statement of Position at 3 (citing Petition for Review at 1). Although it is not clear that the terms "possible" and "applicable" are meaningful conditions, we agree that the proposal itself contains no conditions whatsoever. As such, the Union's statement is inconsistent with the proposal and may not be given effect. See, e.g., American Federation of Government Employees, Local 2879, AFL-CIO and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074, 1081 (1994). We note, however, that even if the proposal contained the conditional wording suggested by the Union's statement of intent, we would reach the same decision.
The proposal in this case is substantively identical to the proposal found negotiable in International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army Corps of Engineers, South Pacific Division, San Francisco, California, 51 FLRA 3 (1995) (IFPTE, Local 49). There, we rejected agency assertions that the proposal required bargaining over the content of job descriptions for supervis