09:0151(20)NG - NFFE Local 1497 and Air Force, Lowry AFB, CO -- 1982 FLRAdec NG
[ v09 p151 ]
09:0151(20)NG
The decision of the Authority follows:
9 FLRA No. 20
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1497
Union
and
DEPARTMENT OF THE AIR FORCE,
LOWRY AIR FORCE BASE, COLO.
Agency
Case No. 0-NG-313
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
REPRESENTS ISSUES CONCERNING THE NEGOTIABILITY OF TWO UNION PROPOSALS.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
UNION PROPOSAL 1
A. ANY CHANGES IN THE POSITION DESCRIPTION WILL BE COMMENSURATE WITH
THE EXISTING POSITION
DESCRIPTION REGARDING PROFESSIONAL DUTIES/LEVEL/STATUS AND WILL BE
DISCUSSED WITH THE EMPLOYEE
BY THE SUPERVISOR PRIOR TO IMPLEMENTATION. (ONLY THE UNDERLINED
PORTION IS IN DISPUTE.)
THE RECORD INDICATES THAT THIS PROPOSAL IS DESIGNED TO ADDRESS
CONCERNS REGARDING THE POSSIBILITY OF POSITIONS BEING DOWN-GRADED DUE TO
THE ASSIGNMENT OF NONPROFESSIONAL LEVEL DUTIES TO PROFESSIONAL
EMPLOYEES. ON ITS FACE, AND AS INTERPRETED BY THE PARTIES, THE PROPOSAL
WOULD PRECLUDE THE AGENCY FROM REVISING UNIT POSITION DESCRIPTIONS
REGARDLESS OF THE DUTIES ACTUALLY ASSIGNED TO THE POSITIONS OR EMPLOYEES
INVOLVED, UNLESS THE REVISED DUTIES WERE CONSISTENT WITH CURRENT
PROFESSIONAL LEVELS OF THE POSITIONS. THUS, THE OBVIOUS EFFECT OF THE
PROPOSAL IS THAT POSITION DESCRIPTIONS WOULD BE INACCURATE WHENEVER
NONPROFESSIONAL DUTIES ARE ASSIGNED TO PROFESSIONAL EMPLOYEES.
THE AUTHORITY HAS CONSISTENTLY HELD THAT A POSITION DESCRIPTION DOES
NOT CONSTITUTE AN ASSIGNMENT OF DUTIES BUT MERELY REFLECTS THE DUTIES
WHICH HAVE BEEN ASSIGNED TO A POSITION OR AN EMPLOYEE. SEE, E.G.,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND
ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA 152, 159-61 (1979), ENFORCED AS TO OTHER MATTERS SUB
NOM., DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659
F.2D 1140 (D.C. CIR. 1981), CERT. DENIED SUB NOM., AFGE V. FLRA, 50
U.S.L.W. 3669 (FEB. 23, 1982); NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, 6 FLRA NO. 97
(1981). THUS, A PROPOSAL WHICH SOLELY CONCERNS THE KINDS OF DUTIES
WHICH CAN BE INCLUDED IN A POSITION DESCRIPTION WOULD NOT IN AND OF
ITSELF DETERMINE THE KINDS OF DUTIES WHICH COULD BE ASSIGNED TO
POSITIONS OR EMPLOYEES UNDER THAT DESCRIPTION. THEREFORE, THE AGENCY'S
CONTENTION THAT UNION PROPOSAL 1 DIRECTLY INTERFERES WITH ITS RIGHT TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) IS INAPPOSITE. /1/
AS ALREADY INDICATED, HOWEVER, THE PRESENT PROPOSAL WOULD RESULT IN
INACCURATE POSITION DESCRIPTIONS. IN THIS CONNECTION, CHAPTER 511,
SUBCHAPTER 4-3 OF THE FEDERAL PERSONNEL MANUAL (FPM) REQUIRES THAT EACH
POSITION DESCRIPTION ACCURATELY STATE THE DUTIES AND RESPONSIBILITIES OF
A POSITION AND THAT THE AGENCY OFFICIAL WHO IS THE IMMEDIATE SUPERVISOR
OF A PARTICULAR POSITION SO CERTIFY. /2/ THE FPM INDICATES THAT THE
REQUIREMENT OF AN ACCURATE POSITION DESCRIPTION AND CERTIFICATION
THEREOF IS NECESSARY TO IMPLEMENT THE STATUTORY CLASSIFICATION AND PAY
SYSTEMS (5 U.S.C. 5101 ET SEQ. AND 5301 ET. SEQ.) SINCE THE POSITION
DESCRIPTION IS THE BASIS UPON WHICH THE PROPER GRADE IS ASSIGNED TO A
POSITION AND THE GRADE OF A POSITION IS THE BASIS FOR DETERMINING THE
PAY DUE THE INCUMBENT OF THE POSITION. SEE DIX-MCGUIRE EXCHANGE, SUPRA.
FOR EXAMPLE, WHERE THE DUTIES OF A POSITION HAVE BEEN CHANGED AS TO
THEIR NATURE AND/OR AS TO THE SKILLS AND LEVEL OF RESPONSIBILITY
REQUIRED, FAILURE TO REVISE THE POSITION DESCRIPTION TO ACCURATELY
REFLECT SUCH CHANGES MAY RESULT IN THE POSITION'S BEING IMPROPERLY
CLASSIFIED AND THE INCUMBENT'S PAY BEING INCONSISTENT WITH STATUTORY PAY
SCALES. THUS, THESE STATUTORY SYSTEMS GOVERNING CLASSIFICATION AND PAY
CANNOT PROPERLY BE IMPLEMENTED WITHOUT ACCURATE POSITION DESCRIPTIONS.
THE REQUIREMENT OF CERTIFICATION IS INTENDED TO INSURE SUCH ACCURACY.
FOR THIS REASON, THE REQUIRED CERTIFICATION STATEMENT ITSELF INDICATES
THAT FALSE OR MISLEADING STATEMENTS IN THE POSITION DESCRIPTION OR THE
CERTIFICATION MAY CONSTITUTE A VIOLATION OF LAW. THEREFORE,
IMPLEMENTATION OF THE AT ISSUE PROPOSAL, GIVEN ITS INTENDED MEANING AND
EFFECT, WOULD BE INCONSISTENT WITH THE PROVISIONS OF THE FPM CITED ABOVE
SINCE IT WOULD PRECLUDE THE AGENCY FROM REVISING POSITION DESCRIPTIONS
TO REFLECT NONPROFESSIONAL LEVEL DUTIES SHOULD SUCH DUTIES BE ASSIGNED
TO PROFESSIONAL POSITIONS OR EMPLOYEES, IMPLICITLY NECESSITATING THE
CERTIFICATION OF AN INACCURATE POSITION DESCRIPTION. CF. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 41 AND DEPARTMENT OF
HEALTH AND HUMAN SERVICES, OFFICE OF THE SECRETARY, HEADQUARTERS, 8 FLRA
NO. 18 (1982) (ARBITRATION AWARD HELD CONTRARY TO FPM, CHAP. 511,
SUBCHAP. 4).
FINALLY, IT REMAINS TO BE DETERMINED WHETHER THE PROVISIONS OF
CHAPTER 511, SUBCHAPTER 4-3.B. OF THE FPM CONSTITUTE GOVERNMENT-WIDE
RULES OR REGULATIONS WITHIN THE MEANING OF SECTION 7117(A)(1) OF THE
STATUTE; IF SO, THAT SECTION WOULD BAR NEGOTIATIONS ON THE PROPOSAL.
IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE
SERVICE, NEW ORLEANS DISTRICT, 3 FLRA 747 (1980), THE AUTHORITY, BASED
UPON THE LEGISLATIVE HISTORY OF SECTION 7117(A)(1), DETERMINED THAT THE
TERM "GOVERNMENT-WIDE RULE OR REGULATION" REFERRED TO THOSE PROVISIONS
WHICH ARE GENERALLY APPLICABLE TO THE FEDERAL CIVILIAN WORK FORCE. THE
AUTHORITY FOUND THAT THE FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMRS)
AT ISSUE IN THAT CASE WERE "GOVERNMENT-WIDE" WITHIN THE MEANING OF
SECTION 7117(A) BECAUSE THEY APPLY TO FEDERAL CIVILIAN EMPLOYEES IN THE
EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES OF THE GOVERNMENT. LIKE
THE FPMRS, CHAPTER 511 OF THE FPM AT ISSUE HEREIN APPLIES TO FEDERAL
CIVILIAN EMPLOYEES IN THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES
OF THE GOVERNMENT AND THUS IS GENERALLY APPLICABLE TO THE FEDERAL
CIVILIAN WORK FORCE SO AS TO BE "GOVERNMENT-WIDE" WITHIN THE MEANING OF
SECTION 7117(A)(1). SEE FPM, CHAPTER 511, SUBCHAPTER 1-2.F. SEE ALSO 5
U.S.C. 5102 AND 5331.
AS TO WHETHER THE PROVISIONS OF FPM, CHAPTER 511, CONSTITUTE A "RULE
OR REGULATION" WITHIN THE MEANING OF SECTION 7117(A)(1), /3/ THE
CONFERENCE COMMITTEE REPORT INDICATES CONGRESS' INTENT THAT THE TERM IN
QUESTION NOT BE CONFINED ONLY TO THOSE RULES OR REGULATIONS WHICH MEET
FORMAL REQUIREMENTS FOR NOTICE AND COMMENT, SEE, E.G., 5 U.S.C. 553, BUT
SHOULD ALSO INCLUDE "OFFICIAL DECLARATIONS OF POLICY OF AN AGENCY WHICH
ARE BINDING ON OFFICIALS AND AGENCIES TO WHICH THEY APPLY." /4/ TURNING
TO CHAPTER 511, SUBCHAPTER 4-3.B., IN PARTICULAR, THE OFFICE OF
PERSONNEL MANAGEMENT IS STATUTORILY EMPOWERED TO ADMINISTER THE
CLASSIFICATION AND PAY SYSTEMS GOVERNING FEDERAL EMPLOYMENT (5 U.S.C.
5115 AND 5338) AND THE REQUIREMENTS REGARDING THE FORMULATION AND
MAINTENANCE OF POSITION DESCRIPTIONS SET FORTH IN THAT SUBCHAPTER
CONSTITUTE ITS DETERMINATION OF THE POLICIES NECESSARY TO IMPLEMENT
THOSE SYSTEMS. MOREOVER, THAT THE PROVISIONS OF SUBCHAPTER 4-3.B. ARE
BINDING ON THE OFFICIALS AND AGENCIES TO WHICH THEY APPLY IS UNDERSCORED
BY THE REQUIRED CERTIFICATION ITSELF, WHEREIN IT IS ACKNOWLEDGED BY THE
CERTIFYING OFFICIAL THAT FALSE OR MISLEADING STATEMENTS MAY CONSTITUTE
VIOLATIONS OF LAW. THUS, THE AUTHORITY FINDS THAT FPM, CHAPTER 511,
SUBCHAPTER 4-3.B. REGARDING THE CERTIFICATION OF ACCURATE POSITION
DESCRIPTIONS IS A GOVERNMENT-WIDE RULE OR REGULATION AND THAT UNION
PROPOSAL 1, WHICH IS INCONSISTENT WITH THAT PROVISION AS DETERMINED
ABOVE, IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF THE
STATUTE. /5/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
THAT THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL 1 BE,
AND IT HEREBY IS, DISMISSED.
UNION PROPOSAL 2
B. WORK ASSIGNMENTS SHALL NOT BE IN VIOLATION OF PROHIBITED
PERSONNEL PRACTICES NOR ANY
RELEVANT LAW, RULE, OR REGULATION.
THIS PROPOSAL ON ITS FACE DOES NOTHING MORE THAN STATE THAT
MANAGEMENT SHOULD NOT, IN MAKING WORK ASSIGNMENTS, ACT CONTRARY TO LAW
OR REGULATION. IT DOES NOT, FOR EXAMPLE, PURPORT TO BIND THE AGENCY TO
THE SPECIFIC TERMS AND PROVISIONS OF REGULATIONS IN EFFECT AT THE TIME
AGREEMENT IS REACHED SO AS TO GIVE CONTRACTUAL PROVISIONS PRECEDENCE
OVER ANY SUBSEQUENT CHANGES IN REGULATIONS. RATHER IT SIMPLY WOULD BIND
THE AGENCY TO ADHERE TO THE REQUIREMENTS OF SUCH APPLICABLE LAWS AND
REGULATIONS AS ARE IN EFFECT AT THE TIME THE AGENCY PROPOSES TO MAKE
WORK ASSIGNMENTS. THEREFORE, THE PROPOSAL IS CONSISTENT WITH, AND
INDEED SEEMS MERELY TO REITERATE SECTION 7106(A)(2) OF THE STATUTE,
WHICH PROVIDES THAT NOTHING IN THE STATUTE SHALL AFFECT THE AUTHORITY OF
ANY MANAGEMENT OFFICIAL, "IN ACCORDANCE WITH APPLICABLE LAWS," TO
EXERCISE THE MANAGEMENT RIGHTS SET FORTH THEREIN. /6/
ACCORDINGLY, CONTRARY TO THE AGENCY'S CONTENTION, UNION PROPOSAL 2 IS
NOT INCONSISTENT WITH THE AGENCY'S RIGHT UNDER SECTION 7106(A)(2)(B) OF
THE STATUTE TO ASSIGN WORK AND, THEREFORE, PURSUANT TO SECTION 2424.10
OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL 2. /7/
ISSUED, WASHINGTON, D.C., JUNE 23, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. BRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7106(A)(2)(B) OF THE STATUTE (5 U.S.C. 7106(A)(2)(B))
PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
. . . .
(B) TO ASSIGN WORK(.)
/2/ FEDERAL PERSONNEL MANUAL, CHAPTER 511, SUBCHAPTER 4-3.B.
PROVIDES AS FOLLOWS:
4-3. STANDARDS OF ADEQUACY FOR POSITION DESCRIPTIONS FOR MANAGEMENT
PURPOSES
. . . .
B. REQUIRED CERTIFICATION. TO FOCUS APPROPRIATE ATTENTION ON THE
IMPORTANCE OF THE
STATEMENTS AND INFORMATION INCORPORATED IN OFFICIAL POSITION
DESCRIPTIONS, THE SUPERVISORY
CERTIFICATION STATEMENT GIVEN BELOW IS REQUIRED TO BE PLACED ON ALL
OFFICIAL POSITION
DESCRIPTIONS AND SIGNED BY THE IMMEDIATE SUPERVISOR. THIS SIGNED
STATEMENT CERTIFYING TO THE
ACCURACY OF THE POSITION DESCRIPTION IS REQUIRED FOR ALL POSITIONS
SUBJECT TO CHAPTER 51 OF
TITLE 5, U.S. CODE, OR THE GENERAL SCHEDULE, OR BOTH, ESTABLISHED,
AMENDED, OR REDESCRIBED
AFTER DECEMBER 16, 1974. THE STATEMENT IS AS FOLLOWS:
I CERTIFY THAT THIS IS AN ACCURATE STATEMENT OF THE MAJOR DUTIES AND
RESPONSIBILITIES OF
THIS POSITION AND ITS ORGANIZATIONAL RELATIONSHIPS, AND THAT THE
POSITION IS NECESSARY TO
CARRY OUT GOVERNMENT FUNCTIONS FOR WHICH I AM RESPONSIBLE. THIS
CERTIFICATION IS MADE WITH
THE KNOWLEDGE THAT THIS INFORMATION IS TO BE USED FOR STATUTORY
PURPOSES RELATING TO
APPOINTMENT AND PAYMENT OF PUBLIC FUNDS, AND THAT FALSE OR MISLEADING
STATEMENTS MAY
CONSTITUTE VIOLATIONS OF SUCH STATUTES OR THEIR IMPLEMENTING
REGULATIONS.
/3/ THE FPM DOES NOT CLEARLY DIFFERENTIATE AMONG ITS VARIOUS CHAPTERS
AND SUBCHAPTERS SO AS TO INDICATE WHICH PARTS CONSTITUTE REGULATIONS,
WHICH ARE POLICY STATEMENTS, AND WHICH ARE MERELY INSTRUCTIONS REGARDING
PERSONNEL MATTERS.
/4/ THE REPORT OF THE HOUSE-SENATE CONFERENCE COMMITTEE, H. REP. NO.
95-7117, 95TH CONG., 2ND SESS. (1978), STATES (AT 158) AS FOLLOWS:
6. BOTH THE HOUSE AND SENATE AUTHORIZE NEGOTIATIONS EXCEPT TO THE
EXTENT INCONSISTENT WITH
LAW, RULES, AND REGULATIONS (SENATE SECTIONS 7215(C) AND 7218(A);
HOUSE SECTIONS
7103(A)(12)(14) AND 7117(A)(1), (2), AND (3)). THE SENATE
SPECIFICALLY STATES THAT THIS
INCLUDED POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL. THE
HOUSE CONTAINED NO
COMPARABLE WORDING.
THE CONFERENCE REPORT FOLLOWS THE HOUSE APPROACH THROUGHOUT THIS
SECTION AND OTHER
INSTANCES WHERE THERE ARE SIMILAR DIFFERENCES DUE TO THE SENATE
REFERENCE TO POLICIES, AS WELL
AS RULES AND REGULATIONS. THE CONFEREES SPECIFICALLY INTEND,
HOWEVER, THAT THE TERM "RULES OR
REGULATIONS" BE INTERPRETED AS INCLUDING OFFICIAL DECLARATIONS OF
POLICY OF AN AGENCY WHICH
ARE BINDING ON OFFICIALS AND AGENCIES TO WHICH THEY APPLY.
SECTION 7117 (A)(1) OF THE STATUTE (5 U.S.C. SEC. 7117 (A)(1))
PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
/6/ CF. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP
(TAC), HOMESTEAD AIR FORCE BASE, FLORIDA, 6 FLRA NO. 105 (1981)
(PROPOSAL INCORPORATING SPECIFIC RESTRICTIONS STATED IN OMB CIRCULAR
A-76 DIRECTLY INTERFERED WITH THE AGENCY'S RIGHT TO MAKE DETERMINATIONS
WITH RESPECT TO CONTRACTING OUT UNDER SECTION 7106(A)(2)(B) SINCE IT
IMPOSED THE PROVISIONS OF THAT CIRCULAR AS SUBSTANTIVE CONTRACTUAL
LIMITATIONS WITHOUT REGARD TO THE POSSIBLE SUBSEQUENT REVISION OR
ELIMINATION OF THE CIRCULAR.)
/7/ IN DECIDING THAT UNION PROPOSAL 2 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.