National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Production Center, Louisville, Kentucky (Authority decision, September 14, 1992)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving the negotiability issues properly before it. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c). The separate benefits proposal was dismissed without prejudice because no negotiability dispute was presented about it.

Plain-English summary

The Defense Mapping Agency union proposed requiring an employee's written consent before the agency could reclassify that employee's position as cartographer. The Authority found that position classification is excluded from the statutory definition of negotiable employment conditions. It therefore held the consent provisions nonnegotiable. The union had also added a proposal for parking, child care, health club access, and performance awards, but the agency had not alleged that part was nonnegotiable. The Authority dismissed that part of the appeal without prejudice and dismissed the petition overall.

Decision snapshot

• Authority: Classification exclusion under 5 U.S.C. § 7103(a)(14)(B).
• Outcome: Consent provisions held nonnegotiable; separate benefits section dismissed without prejudice.
• Key point: A proposal giving employees control over reclassification concerns position classification, which falls outside negotiable conditions of employment.

Full text (FLRA public release)

[ v45 p1199 ]

45:1199(119)NG

The decision of the Authority follows:

45 FLRA No. 119

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1482

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

HYDROGRAPHIC/TOPOGRAPHIC PRODUCTION CENTER

LOUISVILLE, KENTUCKY

(Agency)

0-NG-1898

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

September 14, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a proposal that would, among other things, prevent the Agency from reclassifying positions unless the employees incumbent in those positions consented. The Union did not file a response to the Agency's statement of position. For the following reasons, we find that the proposal is nonnegotiable.

II. Preliminary Matters

On October 25, 1990, the Union filed an unfair labor practice charge alleging that the Agency had violated section 7116(a)(1), (5), and (8) of the Statute by reclassifying certain bargaining unit positions without bargaining with the Union. Also on October 25, 1990, the Union submitted to the Agency a proposal consisting of the first two sections of the proposal that is at issue in this case. The Agency alleged that the proposal was nonnegotiable and the Union filed the instant petition for review of the Agency's allegation of nonnegotiability. In accordance with section 2424.5 of the Authority's Rules and Regulations, the Union elected to proceed under the unfair labor practice procedures.

By letter dated January 31, 1991, the Regional Director declined to issue a complaint based on the Union's charge. The Union appealed the Regional Director's decision not to issue a complaint and, by letter dated May 21, 1991, the Office of the General Counsel denied the Union's appeal.

By letter to the Authority dated June 3, 1991, the Union stated that on February 28, 1991, while the appeal of the Regional Director's decision was pending before the Office of the General Counsel, the Union had resubmitted its proposal to the Agency. The proposal, as resubmitted, contained the same two sections as the original proposal and added a section (Section 3) that was not a part of the original proposal. There is no evidence in the record that the Union requested an allegation of nonnegotiability as to Section 3 or that the Agency has alleged that Section 3 is nonnegotiable. Rather, the record shows that in response to the Union's proposal as resubmitted, the Agency requested to meet with the Union to discuss the proposal.

Under section 2424.1 of our Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation. See, for example, National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242, 246 (1992). The Agency has asserted that the first two sections of the proposal are inconsistent with law. Accordingly, the conditions governing review of negotiability issues have been met as to those sections. However, the Agency has not asserted that Section 3 is nonnegotiable. Because the Agency does not assert that Section 3 of the Union's proposal is nonnegotiable, the conditions governing review of negotiability issues have not been met as to Section 3.

Consequently, we will dismiss the Union's petition for review as it pertains to Section 3 of the proposal without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are satisfied and the Union elects to file such an appeal.

III. The Proposal

The following procedure will be used in reclassification of positions in the terrain analysis division to cartographer:

1. If the employee affected agrees in writing
   to the proposed change it can be accomplished.

2. If the employee affected does not agree in
   writing to the proposed change then the employee[']s classification will not be changed. The employee[s], at their discretion, may have the classification changed to cartographer at any time in the future by giving their branch chief a written statement indicating the requested change. The change will be done in a timely manner.

The employee(s) who elect to keep their current title, position description, and standards will retain all previous benefits of the said position.

The said written agreement of the employee will be maintained by the employer for a period of one (1) year. The Union will have access to review the material at any time.

3. Because of the severe adverse affect on the
   loss of pay of the civil engineers they will retroactively from 02 Dec 1990 receive the following (if the employee elects to use this service) service paid entirely by the employer:

A. Free parking from the lot of the
employee[']s choice.

B. Free health club membership from the club of their choice.

C. Free child care from the provider of their choice.

D. A yearly cash award in the following amount for their performance appraisal (if monies are not available for all cash awards for all employees then the engineers will receive priority consideration for the awards).

1. Fully Successful---5% of their
   annual salary.

2. Highly Successful--7.5% of their
   annual salary.

3. Outstanding-------10% of their
   annual salary.

These items will help compensate the engineers for the loss of pay by the employer removing them from special rate of pay, which may be barred from negotiations by law. [The preceding sentence was added to the original proposal as part of Section 3 of the resubmitted proposal.]

IV. Positions of the Parties

A. The Agency

The Agency contends that the proposal is nonnegotiable because it concerns matters related to the classification of positions which are excluded from the definition of conditions of employment under section 7103(a)(14)(B) of the Statute. The Agency also contends that the proposal does not constitute either a procedure under section 7106(b)(2) of the Statute or an appropriate arrangement under section 7106(b)(3) of the Statute because the "proposal was intended to be a complete abrogation of the Agency's authority to reclassify positions." Statement of Position at

6. The Agency also argues that employees were not
   adversely affected as a result of the
   reclassification action.

Further, the Agency contends that the proposal is nonnegotiable because it is "analogous to proposals . . . which condition the exercise of management's section 7106 rights on employees' consent." Id. at 7. The Agency argues that, because the proposal prevents reclassification of positions without employee consent, the proposal "also should be considered to directly interfere with, or directly relate to, the Agency's authority to classify positions without bargaining." Id.

B. The Union

The Union explains that the intent of its proposal is to permit those employees affected by the Agency's reclassification of a position to "control the reclassification action." Petition for Review at 2. In this regard, the Union states that "[i]f [the employees] agree with it[,] it can be done. If they object, it will not be done." Id.

V. Analysis and Conclusions

Section 7103(a)(14)(B) of the Statute excludes from the definition of conditions of employment matters "relating to the classification of any position[.]" See National Association of Government Employees, Local R12-23 and U.S. Department of the Navy, Naval Air Warfare Center, Weapons Division, Point Mugu, California, 45 FLRA 802 (1992). By its terms, the proposal in this case would prevent the Agency from reclassifying positions unless employees affected by the reclassification action agree to the reclassification. In its petition, the Union states that the proposal is intended to prevent the Agency from reclassifying an employee's position unless the employee agrees. Therefore, based on the plain wording of the proposal and the Union's statement, it is clear that the proposal relates to the classification of a position within the meaning of section 7103(a)(14)(B) of the Statute and, therefore, does not concern a condition of employment. Accordingly, without addressing the Agency's other arguments, we find that the proposal is nonnegotiable because it does not concern employees' conditions of employment. See id.

VI. Order

The Union's petition for review is dismissed.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)