The arbitration hearing concerning the above-referenced matter was heard before this Arbitrator on November 8, 2006. (See transcript of proceeding, hereinafter sometimes referred to as “Tr” or by the witness’s last name followed b the transcript page number). The parties were represented by intelligent, resourceful, efficient, competent, and dedicated counsel at the arbitration hearing. The International Association of Machinists and Aerospace Workers, Local Lodge 1998 and the Hawaii Federal Employees Metal Trades Council (hereinafter sometimes collectively referred to as “Union”) and Genaro Perez (hereinafter sometimes referred to as “Grievant”) were both represented by Grand Lodge Representative Maria Santiago Lillis. The Employer, Pearl Harbor Naval Shipyard and IMF (hereinafter sometimes referred to as “Agency”) were represented by Ernest J. James, Esq.

                        Testimony from ten (10) witnesses was taken at the Arbitration hearing. In addition, 21 exhibits were introduced into evidence by the parties, six (6) of which were joint exhibits. The Agency did not introduce exhibits separately, stating that its exhibits were duplicates of the Union’s exhibits. Joint Exhibit #1 constituted the entire collective bargaining agreement between the Union and the Agency. Full opportunity was given to the parties to present evidence, examine witnesses and to present oral argument. The parties submitted their closing briefs on January 16, 2007. This Arbitrator’s decision, as agreed by the parties, was due on February 15, 2007, 30 days after receipt of the closing briefs of the Agency and Union.

                        This Arbitrator has reviewed the testimony and evidence presented during the arbitration hearing on this matter as well as the extremely well written pleadings, pre-arbitration hearing statements and closing briefs submitted by counsel on behalf of their clients. Several arguments have been made by Counsel. This Arbitrator, as a general rule, shall not comment on matters that he believes are superfluous, redundant, or rendered moot by this decision. This Arbitrator shall only address those facts and issues that are relevant to his decision.

                        I.  CONCISE STATEMENT OF AGENCY’S POSITION.

                        The Agency asserts that the grievance should be denied because the primary issue raised by the Gievant concerns issues relating to Classification which are not negotiable. The Agency further argued that the Greivant’s claim of unilateral action by the Agency had been waived. Lastly, the Agency argued that the Grievance was not arbitrable based upon timeliness.

                        II.  CONCISE STATEMENT OF THE UNION’S POSITION.

                        The Union argued that the Grievant’s position description[1] does not accurately reflect the work that he performs and that it does not reflect the fact that the Grievant obtained a Nuclear Clean Mechanic Inspector qualification. The Union denied that it was attempting to have Grievant’s job classification changed, but was merely attempting to have Grievant’s position description accurately reflect the work that he performs. The Union also argued that the Agency unilaterally changed working conditions of the Grievant without notifying the Union. Lastly, the Union argues that the grievance filed on behalf of the Grievant was timely.

                        III.  TIMELINESS MOTION.                     

            The Agency filed a motion to dismiss[2] this Grievance on the basis of arbitrability and timeliness. The motion was denied without prejudice by this Arbitrator, dated November 1, 2006, a copy of which is attached to this Decision and Award as Joint Exhibit 6. Given this Arbitrator’s order of November 1, 2006 and the apparent lack of substantial evidence to convince this Arbitrator to change his decision on the issue of timeliness, the Order Denying the Motion to Dismiss, dated November 1, 2006 is denied with prejudice.                      

IV.             PRIMARY ISSUES.

The primary issues as cited in the closing brief of the Union are as follows:

(1)   Did management violate Article XVI, Sections 1 and 2 of the Negotiated Agreement and any rule, law, past practice, regulation, or procedure that may apply when they did not include in the Grievant’s position description, the major duties and qualification of the Nuclear Clean Mechanic Inspector?

(2)   Did management also fail to notify the Council of these anticipated changes to the qualification as required in Article XVI Section 2?

(3)   Was management untimely when they issued its 3^rd step grievance decision.

(4)   If so, what is the appropriate remedy?

Issue (1) is a legitimate issue to be answered by this Arbitrator since the parties agreed to this issue. Issue (2) has been objected to by the Agency. The Agency maintains that this issue has been waived by the Grievant. However, Joint Exhibit 2, HFEMTC Grievance #05-068, filed on August 1, 2005, the Grievance of Genaro Perez clearly indicates that the issues concerning the Grievance are as follows:

Management has violated Article XVI, Section 1 and 2 of the Agreement Negotiated and any other rule, law, past practice, regulation, or procedure that may apply when management did not include in my position the major duties and qualifications of the Nuclear Clean Mechanic Inspector. Management also failed to notify the Council of these anticipated changes to the qualification as required in Article XVI, Section 2. (Bold underscoring provided).

Unlike the timeliness issue, which was never raised during the grievance process by the Agency until shortly before the Arbitration hearing, the issue of the Agency failing to inform the Union as to anticipated changes to the qualification as required in Article XVI Section 2 was grieved at Step One by the Grievant. The Agency has always been on notice that this would be an issue that would be raised by the Union during the Arbitration hearing. Accordingly, this issue is properly before this Arbitrator.

          In regard to issue (3) set forth above, this is not a primary issue before this Arbitrator. It may be used to support issues (1) and (2) but is not in and of itself an issue. There is no evidence to indicate that this issue was specifically grieved by the Grievant at Step One or during the Grievance process. The first time that this issue was raised as a primary issue was in the closing brief of the Union, received by this Arbitrator on January 16, 2007.

          In regard to issue (4) set forth above, the parties agreed to this issue being considered by this Arbitrator.       It is therefore legitimately before this Arbitrator.

V.        RELEVANT PORTIONS OF THE NEGOTIATED AGREEMENT.

Article XVI  CLASSIFICATION OF FEDERAL WAGE GRADE SYSTEM, AND GENERAL SCHEDULE POSITIONS.

Section 1.  Position descriptions and job descriptions are official written statements of those facts which are important to management regarding only major duties, responsibilities, and qualification requirements and supervisory relationships of a position in order to properly determine the classification and/or job grade level of the position. A position description or job description does not control or in any way limit, a supervisor’s assignment of work and responsibilities to employees. Unit employees have a right to see a copy of their job description or position description.

Section 2.  The Employer will advise the Council concerning any anticipated change in job content which might affect the title, pay rating, as well as any change in job content or classification standards which would affect the title, grade or qualification requirements of a class of graded positions within the Unit. The Council may exercise its right to negotiate to the extent provided by Article II, Rights of Council.

Section 3. Any employee in the Unit who alleges that the employees position is improperly classified will be referred by his/her supervisor to the Council and the Human Resources Office will provide the employee with his/her options in pursuing this matter in accordance with applicable regulations. The Council will be notified that such an inquiry has been made and/or an appeal has been submitted.

Section 4. Management will provide copies of job descriptions of Unit employees. Thereafter, as requested by the Council on an annual basis, major changes to such job descriptions will be provided.

Section 5.  The Council may request for copies of position descriptions in accordance with the document request provisions prescribed by law.

Article II ADMINISTRATION OF AGREEMENT

Section 4.  Rights of Council. The Council has the exclusive right and responsibility to represent all employees in the Unit without discrimination and without regard to labor organization membership. Representation functions include duties such as discussion, investigation (i.e. research) consultation, documentation, representation and presentation with employee(s), management, fellow Council Representatives and/or third parties. Representational functions are authorized pursuant to or consistent with (1) Title VII of Public Law 95-454, (2) Title 5 United States Code, and (3) other applicable regulations or executive orders. These representational functions include but are not limited to the following:

            a. Collective bargaining/negotiations on matters concerning personnel policies and practices; other matters affecting working conditions, including environmental issues.

            b.  Act for such employees and negotiate matters of personnel policies and practices and other matters affecting general working conditions of all employees in Unit One;

            c. Negotiate upon request with the Employer at mutually agreed-upon times prior to the implementation of matters outlined in a. above; and

            d. The opportunity to be represented at formal discussions between one or more representatives of the Employer and one or more representatives of the in the Unit or their representatives concerning any grievance or any personnel policy or practice or other general conditions of employment;

            e. The opportunity to be present at any examination of any employee in the unit by a representative of the agency in connection with an investigation if –

                        (1)  the employee reasonably believes that the examination may result in disciplinary action against the employee;

                        (2) the employee requests representation.

            f. Nothing in this contract shall preclude the Council from exercising its rights regarding the provisions of this agreement with the Federal Labor Relations Authority, General Counsel and/or any other agency as provided by 5 USC, Chapter 71.

                       

                        VI.  THE GRIEVANT.

                        The Grievant is a Marine Machinery Mechanic (Nuclear), WG-10. Mr. Lillis at 79:6. Full-time Nuclear Inspectors are WG-13s. Mr. Lillis at 79:4-5. The Grievant, in addition to testifying, prepared a written statement for the Arbitration hearing. It is entitled “Statement by Genaro Perez.” Union Exhibit A. The statement of the Grievant is as follows:

The Nuclear Clean Mechanic Inspector Qualification requirement was placed into the Nuclear Power Manual 1 Clean 1 (Manual) about three years ago in or about 2002. This requirement was removed on or about August 10, 2005,[3] without notice and an opportunity to bargain having been afforded to the Union. This requirement applies not only to Marine Machinery Mechanics, but other professions as well. This qualification requirement is not contained in our job description. Only certain people could qualify.

This qualification requirement allows employees to inspect the work of their co-workers from steam plan and nuclear cleanliness. Once qualified, one is eligible to become a Nuclear Clean Mechanic Inspector, also called Nuclear Inspectors in Code 139.

                        One must have journeyman level work experience as a prerequisite to inspect other journeyman’s work. In order to obtain this qualification, one must be a journeyman, pass various nuclear courses and participate in on the job training with another journeyman who has attained the qualification requirement. This position requires a minimum of one year on the job training, which I satisfied in 2002. This provides the individual with the necessary cleanliness work experience, which needs to be documented by Shop 300N (Nuclear Power Code).

                        The course work consists of a day class entitled Nuclear Clean Inspector and the individual must receive a 75% score on the examination. The exam has about 20 short answer questions out of  the manual. I passed the exam in 2002. There were about 30 people in my shop, who were qualified to become Nuclear Clean Mechanic Inspectors. This qualification requirement, once attained, was not included in the employee’s position description. As a result of attaining this qualification requirement, I could independently perform nuclear cleanliness work in all situations and sign off on shop certifications involving Type 1 and Steam Plant Cleanliness as detailed in the Corporate Nuclear Power Manual-Clean chapters contained in the Manual. Code 139 people had to sign off on our work.

                        The change, which took place on August 10, 2005 was that the agency removed the Nuclear Clean Mechanic Inspector from the Manual and inserted in its place that an individual only needed to be Nuclear Clean Mechanic to perform inspections. After August 10, 2005 the agency eliminated the Nuclear Clean Mechanic Inspector qualification requirement and replaced it with the Nuclear Clean Mechanic qualification requirement. Now, the people who possess the Nuclear clean Mechanic qualification requirement can sign off on all shop documents as well. Now, there are about 60 people who can sign off on these certification documents merely by possessing the Nuclear Clean Mechanic qualification requirement. This creates a larger pool of people eligible for promotion. The Inspector had to take more advanced Course work than the Nuclear Clean Mechanic and had to have one year of on the job experience. The Nuclear Clean Mechanic did not have to take the more advanced class nor did they need to possess the year of on the job training. One became a Nuclear Clean Mechanic once you passed the less advanced class. In short, after the August 10, 2005 change, there was no longer this need to have the more advanced qualification requirement to conduct cleanliness inspections and to issue the required certification document. Now, almost anyone, can sign the certification. This change harmed my promotion potential (competing for Code 139 openings) because now the available pool of employees had doubled from about 30 to 60. This is the primary impact of the aforementioned change.

                        I have served as a union steward on behalf of the HFEMTC since October 1, 2001. I, on behalf of other qualified nuclear workers, attempted to have this qualification requirement included in our position descriptions (PD). Again, PHNSY had never included it in prior PD’s. I do not know whey they had not done it before. After the filing of my Step 1 grievance on August 1, 2005, the Navy removed the reference to Nuclear Clean Mechanic Inspectors in the Manual (NPMC 1c1) as the only individuals who could conduct cleanliness inspection and issue certifications and replaced that reference with Nuclear Clean Mechanic. I believe that they made this change because I filed a grievance.

I want an acknowledgement in my job description that I performed these duties. I have conducted over 60 inspections/issued over 60 certifications.

VII.  Did management violate Article XVI, Section 1 and 2 of the Negotiated Agreement and any rule, law, past practice, regulation, or procedure that may apply when they did not include in the Grievant’s position description, the major duties and qualification of the Nuclear Clean Mechanic Inspector?

                        The answer to the first part (Article XVI, Section 1) of this primary issue concerns three smaller, but ancillary issues that were argued in the pleadings, the arbitration hearing, and the closing briefs. First, the Grievant argues that his position description needs to be updated for promotional purposes and to protect him from matters such as a Reduction-In-Force. “The matter of an inaccurate job description is significant and grievable in the event of a reduction in force, this could harm Mr. Genaro, because he could not claim to have work experience, because it does not exist in his record. Mr. Lillis at 34:3-7. However, Grievant’s qualifications are known to the Agency and its supervisors. Credit for special certifications, classes, etc. is more likely than not part of Grievant’s personnel file. It does not need to be in Grievant’s position description for him to have credit. As the Grievant stated: “And whatever qualifications that you went to school, it’s all listed. And the supervisor doing your brief, it’s his responsibility to make sure all your qualifications are up to date. And that he is putting the right person to the right job on that ship.” Genaro at 124:23-25. The Negotiated Agreement, Articles XI (Performance Management Program) and XII (Reduction in Force) protect Grievant from such action.

          Second, the Agency cites to the Negotiated Agreement of the parties which stands for the proposition that Grievant cannot use the Grievance process to change his position description. APPENDIX II, MATTERS EXCLUDED FROM THE GRIEVANCE PROCEDURES, item 10 provides as follows:

The classification of a position (GS or FWS) which does not result in reduction in grade or pay of an employee.

                        However, it is significant to note that Grievant’s position does not fall into either the GS or the FWS classifications. Rather Grievant is classified as a “WG” employee. Accordingly, APPENDIX II does not preclude the grievant from bringing this grievance. It is also significant to note that support for the proposition that position descriptions are grievable can be found in Union Exhibit I, Chapter 3, Position Classification and Job Grading. Union Exhibit I-6 provides as follows:

                        Employees included in collective bargaining units, for which there are negotiated agreements, may grieve the accuracy of the description by means of the negotiated grievance procedures, unless the issue is excluded from the procedure under the terms of the agreement.

                        The Negotiated Agreement between the Agency and the Union places no limitations or restrictions on the position descriptions being grievable by Grievant’s who are classified as “WG.” Accordingly, this argument is not a basis to support the position of the Agency.

           Third, the Union’s Exhibit O-1 provides the synopsis of two arbitration cases which stand for the proposition that position descriptions are grievable. The first is American Federation of Government Employees, Local 1760 and Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center, Flushing, NY (LAIRS 14087) (1982). It was decided by arbitrator George Nicolau. This case stands for the proposition that inaccurate job descriptions are arbitrable. Evidently, neither the Union nor the Agency in this arbitration filed exceptions pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute and part of 242 of the Authority’s Rules and Regulations.

          The second case that the Union relies upon is also presented as a synopsis of which is set forth in Union’s Exhibit O-2, American Federation of Government Employees, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correction Institution, Petersburg, VA (LAIRS 14255) (1982). This case was decided by arbitrator James C. Oldham. Although this arbitration decision also stands for the proposition that position descriptions are arbitrable, arbitrator James C. Oldham’s decision was overturned by the Authority in Federal Correctional Institution, Petersburg, Virginia (Activity) and American Federation of Government Employees, Appomattox Local 2052 (Union), 16 FLRA 86 (1984). In this case, the Agency filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute and part of 242 of the Authority’s Rules and Regulations.

          The most recently decided cases by the Authority concerning position descriptions stands for the general proposition that position descriptions, if they relate to or concern position classifications are not grievable. This has been the position taken by the Agency. The general rule, set forth in Social Security Administration (Agency) and American Federation of Government Employees, Local 1923 American Federation of Government Employees, Local 1923 (Union), 60 FLRA 62 (2004), stands for the proposition that under § 7121(c)(5) of the Statute, grievances concerning the classification of any position which do not result in a reduction in grade or pay of an employee" are precluded by law from coverage by a negotiated grievance procedure. Thus, an arbitrator is barred from resolving any grievance concerning the classification of a position that does not result in the reduction in grade or pay of an employee. Also see United States Department of the Navy Marine Corps Air Station Cherry Point, North Carolina (Agency) and International Association of Machinists and Aerospace Workers, Local 2296 (Union), 60 FLRA 37 (2004); United States Department of the Army Fort Polk, Louisiana (Agency) and National Association of Government Employees Local R5-168 (Union; 61 FLRA 8 (2005); United States Environmental Protection Agency, Region 2 (Agency) and American Federation of Government Employees, Local 3911, (Union), 61 FLRA 671 (2006); United States Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controller Association (Union), 61 FLR 634 (2006); United States Securities Exchange Commission, Washington D.C. (Agency) and National Treasury Employees Union, Chapter 293 (Union), 61 FLRA 251 (2005); and American Federation of Government Employees, Local 2142 (Union) and United States Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency) 61 FLRA 194 (2005).

          The Union acknowledges that classification matters as a general proposition are not grievable. “And while that was their opinion, I did not cite the classification articles in the contract in my First Step Grievance, knowing full well that classification matters are not grievable. Management has - - I mean, that’s just off the table, you know, against the rules. If - - even if the arbitrator ruled in our favor, you know, and included a classification, it would be sent straight to the FLRA, overruled, you know, boom, we would have lost the arbitration even if we had won a proper decision, because that’s just strictly a violation of the law, you can’t do it.” Mr. Lillis at 49:11-22.

          The FLRA case this Arbitrator found that impliedly permits position descriptions to be arbitrable is Federal Aviation Administration, Department of Transportation, Tampa, Florida, Activity and Federal Aviation Science and Technological Association, National Association, 8 FLRA 103 (1982). In this case the Authority found that while the stipulated issue before the Arbitrator only questioned the accuracy of the Grievant’s position description, the essential nature of the grievance concerned the classification of the Grievant’s position because the substance of the dispute between the parties was the grade level of the duties assigned to and performed by the Grievant. Although the Authority noted that the Arbitrator properly recognized that he could not reclassify the Grievant or rule on a dispute over whether Greviant’s position has been properly classified, the actual question that the Authority addressed and resolved was so integrally related to, and controlling of, the grade of the grievant’s position (employees who performed “subsystems” work versus “system” work were at different grade levels) that the Authority found that under the position description concerned the classification of a position within the meaning of section 7121 (C ) (5) of the Statue. The Authority concluded that the issue of the grievant’s position description was too integrally related to the classification of those that performed “subsystems” work as opposed to those who performed “system” work, the latter of which was a higher classification. Therefore, the rule appears to be that a position description is grievable, provided there is no attempt (intentional or unintentional) to reclassify the grievant which would violate section 7121 (C) (5) of the Statute.

          Grievant’s case is very similar to this case in that he seeks to have his position description accurately reflect the work that he performs. Id. In addition, like this case, the Grievant’s position description appears to be integrally related to an attempt to have Grievant’s position reclassified by being “upgraded” Id. It also appears to create two classes of employees within the class that Grievant belongs, WG-10. The following facts and statements support this Arbitrator’s conclusion:

1. When the Grievant was asked if he held the position of Nuclear Clean Mechanic. His response was “I hold two positions, which is combined into one. It’s Nuclear Clean Mechanic, and I also hold the Nuclear Clean Mechanic Inspector. It’s a higher position that I hold in this.” Genaro at 103:21-24.

2.  Before this grievance was filed on August 1, 2005 (Joint Exhibit 2) workers were asking Grievant when they were going to get paid for doing “higher work.” Genaro at 118:3-20.

3.  “I talked to management personnel, by themselves, and they said, you guys deserve an upgrade. You guys are doing more work than what you are supposed to be doing.” Genaro at 119:10-12.

4.  “And the only thing we really wanted in this whole thing is that Mr. Perez inspects other people’s work, as basically as a fundamental thing is, he’s signing and certifying that other mechanics that he has observed actually did, you know, work. He signed it for the certification, while they cannot sign for their own work.’ Mr. Lillis at 43:9-18.

5. Mr. Lillis, in an e-mail concerning a delay of these proceeding improperly referred to the issue in dispute incorrectly by using the word “classification.” “Yes I did. Yes, I definitely recall that e-mail. In that e-mail, I used the term - - improperly. I called it - - I believe I used “position classification” when I really should have said, “job description.” Mr. Lillis at 51:12-17. Please note that the incorrect terminology was corrected by Mr. Lillis.

6. Higher-level duties would affect their classification. So, if a guy is doing higher than what is recorded in his job description, those higher-level duties should be included, so that he could get a higher level job. Lillis at 91:13-18. [4]

7.  The testimony of Danton Kawakami who oversees Nuclear Marine Mechanics and Nuclear Clean Mechanic Inspectors testified that there is no distinction or very little distinction between the two. Kawakami at 208:1-210:2. In addition, a Nuclear Clean Mechanic and a Nuclear Clean Mechanic Inspector hold the same job description. Omaye at 218:14. This qualification appears to be relevant to the experience of the Mechanic. Crowell at 244:9-10. Union Exhibit A, a “Statement by Genaro Perez” which was prepared for this Arbitration requests a position description correction which would apparently seek to create two classes of employees within WG-10. One group of employees within WG-10 would have a minimum of one year on the job training, possess a Nuclear Clean Mechanic Inspector qualification and be able to work alone without supervision while the other class of employees would not have these qualifications. In short, they would not have the one year on the job training, would not possess the Nuclear Clean Inspector qualification, and would require a more experienced mechanic who possesses a Nuclear Clean Inspector Qualification to oversee their work.

          With the utmost respect for Union President Robert Lillis and Grand Lodge Representative Maria Santiago Lillis, who have sincerely and zealously advocated the position of Grievant Genaro Perez, this Arbitrator believes that this issue must be answered in the negative. It is natural for any employee to want a wage increase. However, proper procedures must be used to obtain a wage increase. Although this Arbitrator has found that a position description is grievable, the preponderance of the evidence clearly indicates that the dispute between the Agency and the Grievant is one that clearly involves a job classification, not a position description. The primary, if not sole reason for the Grievant requesting a position description change does not appear to correct the position, but rather it is to upgrade his position to reflect that he and other employees who hold this qualification are a class apart from their fellow Nuclear Marine Machinery Mechanics and therefore entitled to additional pay for the work that they perform. This would clearly violate Section § 7121(c)(5) of the Statute, which provides that grievances concerning the classification of any position which do not result in a reduction in grade or pay of an employee are precluded by law from coverage by a negotiated grievance procedure. Accordingly, this Arbitrator finds the grievance on this (Article XVI, Section 1) issue must be denied.

 

VIII.  Did management also fail to notify the Council of these anticipated changes to the qualification as required in Article XVI, Section 2?

                        The Grievant has been employed in the Agency’s nuclear program as a nuclear

qualified mechanic since about 1993. Genaro at 142:4-5. He became a steward for the Union on October 1, 2001. Union Exhibit  A-1. Grievant, as a steward for the Union, is also an agent for the Union. A steward’s responsibilities and duties include reporting violations of the Negotiated Agreement to the Union. [5]

                        The alleged change in some of the qualifications of the Grievant’s position description evidently occurred in 2002. Genaro at 104:2. For example, the Nuclear Clean Mechanic Inspector duties came into play around 2002. Genaro at 103:25 and 104:1-2; Lau at 178. The Agency was having difficulty with younger mechanics and work was being stopped. Genaro at 104:7-11. In addition, there was a shortage of qualified personnel so Grievant and other “old-timers” were given the task of mentoring the younger mechanics along with some inspector duties. Genaro at 104:12-20. Before this, anytime nuclear work was done, a nuclear inspector, whose classification level is WG-13 (code 130), was present. Genaro at 104:21-25. These inspectors inspected his work to make certain it was done correctly. Genaro at 105:1-4. 

          Grievant assumed some inspector duties around 2002. Genaro at 104:2. Anytime a nuclear system was opened, WG-13’s had to be present. Genaro at 104. There job was to inspect their work to make certain that they are doing their work correctly. Genaro at 105:3-4.

                      The ratio of inspectors to mechanics was sometimes 2 to one. Genaro at 105:7-8. As a result, a new classification was evidently created, the Nuclear Mechanic Inspector II because there were not enough inspectors to cover all of the jobs. Genaro at 105:9-11. Grievant was assigned some of the responsibilities (inspector work) that WG-13’s performed. Genaro at 12-14.

                      Grievant was informed that “veteran workers, mostly old-timers” would be sent to Nuclear Clean Mechanic Inspector classes. Genaro at 105: 19-25. Grievant began to attend these classes in 2002. Genaro at 106:3-4. It is significant to note that Mr. Cruz, shop 38’s former Nuclear Director a Nuclear Clean Inspector Mechanic is a qualification, not a position. Cruz at 191:18-20. In addition, the union is not claiming that Nuclear Clean Inspector Mechanics are Code 139s. “We’re not claiming that they’re full inspectors. But we’re claiming that they’ve done inspector duties - - some inspector duties - - and those duties should be included in their job description.” Mr. Lillis at 67:11-14. There is a difference between a Code 139 Inspector and a Nuclear Clean Mechanic Inspector. Omaye at 220: 23-25. A Nuclear Clean Mechanic cannot work alone unless he holds an inspector qualification. Genaro at 129:5-23 and 131:8-22. However, even if he holds an inspector qualification, a job may not be closed with a Code 139 Inspector being present. Genaro at 117:4-18. Grievant inspects the Nuclear Clean Mechanic’s work and Code 139 inspects the Grievant’s work. Genaro at 135:12-13.  The final closure is done by Code 139. Nagamine at 237:4-7.

                      Grievant thought it was out of the ordinary that he was given additional duties that were supposed to be handled by Code 139. Genaro at 108:11-15. Several mechanics were unhappy since the scope of their work expanded and Code 139 was not responsible. Genaro at 108:18-20.

                      They were responsible making certain that they had the right technical documents, were going to work on the right vessel, that all revisions were updated, the wack is open. Genaro at 109:3-9.  They (nuclear mechanics with the nuclear inspector qualification) are also responsible for checking three types of level controls, type 1, steam plant, and commercial grade. Genaro at 109:10-14. The Code 139 personnel go through all of the Type 1 material. Genaro at 109:20-21. As Mechanics, they re-verify what Code 139 did. Genaro at 110:1-3. In short, they are responsible for check all the Task Group Instructions (TGIs) Union Exhibit M. Genaro at 108:25 and 111:21-22. See Union Exhibit M for the TGIs. When the work is completed, it is reviewed by a Code 139. Genaro at 117:11-13 and 135:1-15.

                      Grievant, who is a Union steward, continued to do these additional duties for at least a few years. “Because we were doing all this work all these years. And I thought, sooner or later, management is going to give us an upgrade. Genaro at 119:2-4.

                      The Union was well aware of the changes that were taking place concerning the duties and qualifications of the workforce. “The shipyard attorney, Ernie James, said that this was untimely, that we could have filed it three years ago when they changed the duties. And while changing the duties, we could have requested to negotiate. We never said that that was the violation we were looking at. Because we clearly allowed those duties to happen. Genaro’s a steward. He knows - -  pretty much knows the rules. But it was okay with us, that those duties were, you know, we - -  you know, um, to do those duties there was no complaints about doing those duties.” Mr. Lillis at 56:15-25.

          Adequate notice of a proposed change in conditions of employment triggers the exclusive representative's responsibility to request bargaining over the change. See Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1535 (1996) (Materiel Command). Failure to request bargaining in response to adequate notice of a proposed changes in conditions of employment may be construed as a waiver of the exclusive representative's right to bargain. See, e.g., Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 582 (1992); United States Department of Defense, Defense Commissary Agency, Peterson Air Force Base, Colorado Spring, Colorado (Respondent) and American Federation of Government Employees Local 1867 (Charging/Party/Union), 61 FLRA 688 (2006).

          The Union clearly knew of the alleged change in duties and even gave its implied consent to the change. In addition, Grievant, who is a Union steward wanted the qualification of NUCCLEAN Mechanic Inspector. Grievant nor the Union cannot over 2 years later argue unilateral action. Under the factual circumstances of this case, this Arbitrator does not believe that it would be fair and equitable to find that management violated Article XVI, Section 2 of the Negotiated Agreement. The Union clearly waived its right to object to the Agency’s alleged unilateral action concerning the qualification. In addition, the Council clearly had notice.

IX.            

DECISION AND AWARD.

 

The grievance is respectfully denied on this 6^th day of February, 2007.                                                                                                                                                             

 

/S/_______________________________
                        MICHAEL ANTHONY MARR
                        Arbitrator

ORDER DENYING MOTION TO DIMSISS BASED UPON TIMELINESSS WITHOUT PREJUDICE

            The Agency filed a motion for summary disposition of the above-referenced grievance on October 23, 2006 based upon timeliness and arbitrability. The Union responded on behalf of Grievant Genaro Perez on October 31, 2006.

            The Agency’s motion to dismiss is denied without prejudice. This matter has been scheduled for hearing on November 8, 2006. There shall be a court reporter present at this hearing. If the Agency believes that this Arbitrator’s “Order denying the Agencies Motion to Dismiss Based Upon Timeliness Without Prejudice” is incorrect, it may attempt again, as a preliminary matter on November 8, 2006 to persuade this Arbitrator to grant it motion by presenting witnesses to support its position. If the Agency elects to proceed in such a fashion, it shall provide the Union with the names of all witnesses it intends to call to support it motion no later than Friday, November 3, 2006. The Union shall respond by providing the names of all witnesses it intends to call concerning this preliminary matter no later than 9:00 a.m., Monday, November 6, 2006. If this Arbitrator decides to grant the Agency’s motion, the Arbitration shall not be heard on its merits and the grievance shall be denied. If, on the other hand this Arbitrator decides the timeliness and arbitrability motion should not be granted, the arbitration shall proceed on its merits.

            Timeliness is a procedural issue to be decided by this Arbitrator. National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Marine Base, 51 FLRA 122 (1996); U.S. Department of Defense, Army and Airforce Exchange Service and American Federation of Government Employees, 49 FLRA 95 (1994); U.S. Mapping Agency Aerospace Center and National Federation of Federal Employees, Local 1827, 35 FLRA 103 (1990); Department of Agriculture, Food Safety and Quality Service and National Joint Council of Food Inspection Locals, AFGE, 6 FLRA 278 (1981); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker AFB and AFGE Local 916, 43 FLRA 963 (1992); U.S. Department of Defense, Army and Air Force Exchange Service, Dallas Texas and AFGE, 49 FLRA 982 (1994).

            The Agency asserts that the Union has failed to timely grieve the matter as required in the parties’ contract and that this Arbitrator should therefore grant its motion. This Arbitrator respectfully disagrees for the following reasons:

            (1) The Agency and the Union agreed on May 15, 2006 that this Arbitrator had jurisdiction and that the issues before this arbitrator concerning the nuclear inspector job description were arbitrable. This Arbitrator confirmed that this was the understanding of the parties when he sent the parties a letter confirming these agreements on May 15, 2006. It is the opinion of this Arbitrator that the Agency, by agreeing to arbitrability on May 15, 2006 waived its right to object on this ground.

            (2)  The Negotiated Agreement between the Agency and the Union establishes a grievance procedure. Article XIX, Section 13 provides in relevant part:

                        …Any allegation of non-grevability or non-arbitrability shall be raised by the party making the allegation prior to that party issuing its final written decision                 under any of the procedures contained in this Article… 

            Throughout the Grievance process concerning the above-referenced matter, Article XIX was applicable. The Agency, prior to issuing a final written decision failed to raise the issue of timeliness or arbitrability. These issues also were not raised during our prehearing conference at the HFEMTC Union Hall on September 28, 2006. Since the Agency agreed to jurisdiction and arbitrability on May 15, 2006, failed to raise this issue during the grievance process as governed by Article XIX, failed again to raise this issue during a prehearing conference on September 28 and brings this motion for summary disposition on October 23, after witness and exhibit lists have for the most part been exchanged, this Arbitrator finds that the Agency has waived its right to object based upon arbitrability.

            (3)  This Arbitrator agrees with the arguments made the Union in regard to the Agency’s failure to comply with Article XIX of the Negotiated Agreement. The arguments made support item (2) of this Arbitrator’s decision.

            (4)  Matters concerning this grievance have evidently been brought before the Federal Labor Relations Authority before. Timeliness has never been raised by the Agency before. It appears to this Arbitrator that timeliness issue is an issue that was either intentionally waived or overlooked by the Agency. The issue should not be permitted to be raised at this time in the arbitration process.

            (5)  Given items (1) through (4) above, this Arbitrator also believes that he would be abusing his discretion and the spirit of Title 5 of the United States Code, Chapter 71, Section 7121 (concerns grievance procedures) if he found that the grievance before him, at this moment in time, were untimely.

            The Agency has placed itself in the position that it finds itself regarding the issue of timeliness. The law, facts, history of this case, the equities, and the Negotiated Agreement clearly mandate that this Arbitrator deny the Agency’s motion for summary disposition to dismiss this grievance.

            Both of the parties have addressed the issue of “continuing violations.” This Arbitrator feels uncomfortable issuing an order on this issue without a hearing motion on the merits. Same can be addressed as a preliminary matter on November 8, 2006 if the Agency is unsatisfied with this Order Denying Motion to Dismiss Without Prejudice.

                        DATED: Honolulu, Hawaii, November 1, 2006.

/S/_______________________________
                        MICHAEL ANTHONY MARR
                        Arbitrator

 

STATE OF HAWAII                                   )
                                                                     )
CITY AND COUNTY OF HONOLULU     )

On this 6th day of February 2007, before me personally appeared Michael Anthony Marr, to me known to be the person described in and who executed the foregoing Decision and Award and acknowledged that he executed same as his free act and deed.

                                                            SEAL
/S/_______________________________
Notary Public, State of Hawaii
My Commission expires on May 2, 2008.