[ v13 p255 ]
13:0255(44)CA
The decision of the Authority follows:
13 FLRA No. 44
MARCH AIR FORCE BASE
RIVERSIDE, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1953
Charging Party
Case No. 8-CA-882
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
parties' stipulation of facts, accompanying exhibits, and the parties'
contentions, the Authority finds:
As a result of a classification survey of positions in the GS-318
secretarial series at its facility the Respondent, March Air Force Base,
took actions to downgrade eight employees within the bargaining unit
represented by the Charging Party, American Federation of Government
Employees, AFL-CIO, Local 1953 (AFGE), from GS-6 to GS-5. Subsequently,
these employees were issued new position descriptions and were placed on
"stopper" lists giving them priority consideration for placement into
vacant positions at their former grade level. Additionally, the
affected employees were entitled under applicable law and regulation to
retain their GS-6 grade and pay for a period of two years after which
their salaries were to be readjusted, although this protection would
cease if they were offered and declined a position from the stopper
list. AFGE was neither notified before the positions were downgraded
nor provided an opportunity to bargain over the implementation of the
downgrading or its impact on affected employees.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by downgrading unit employees without first
notifying AFGE and providing it an opportunity to bargain over impact
and implementation. The Respondent argues that it had no duty to
bargain because classification actions are excluded from the definition
of "conditions of employment" under section 7103(a)(14)(B) and (C) of
the Statute; /1/ that the classification action herein did not
constitute the exercise of a retained management right under section
7106(a)(2)(A) of the Statute /2/ which would be subject to impact and
implementation bargaining under section 7106(b)(2) and (3); /3/ and
that, even assuming the Respondent had an obligation to bargain over the
impact and implementation of classification actions, there was no such
duty in this case because agency management had very little discretion
under applicable statutes and regulations to bargain over such matters.
Chapter 51 of title 5 of the United States Code relates to the
classification of general schedule positions and grants to agencies and
to the Office of Personnel Management (OPM) various responsibilities for
ensuring that positions are properly classified for purposes of pay and
personnel administration. Specifically, 5 U.S.C. 5105 authorizes OPM,
after consulting with agencies, to prepare standards for placing
positions in their proper classes and grades, and 5 U.S.C. 5107 requires
generally that agencies use these standards in classifying positions.
OPM maintains authority to ensure that agencies are in fact properly
classifying positions and is empowered under 5 U.S.C. 5115 to prescribe
regulations which are necessary for the administration of Chapter 51,
which regulations are found in 5 CFR Part 511 and FPM Chapter 511.
In 5 CFR 511.101, the term "classification" is defined as "the
analysis and identification of a position and placing it in a class
under the position-classification plan established by OPM under chapter
51 of title 5, United States Code." The term "position" is defined as
"the work, consisting of the duties and responsibilities, assigned by
competent authority for performance by an employee." Under Subpart F of
Part 511, employees are given the right to appeal classification actions
to OPM. /4/
The exclusion of classification matters from the definition of
conditions of employment under section 7103(a)(14)(B) of the Statute
first appeared in the Udall substitute to H.R. 11280. In commenting
upon the exclusion, Representative Udall made the following remarks:
/5/
The effect of this new exclusion would be to remove the
classification of positions from collective bargaining. This
change is designed to help ensure the continuation of
classification uniformity throughout the Federal Government. The
term "classification of any position" encompasses all positions
and jobs, including white-collar and blue-collar.
From the definitions contained in the operative regulations and the
remarks of Representative Udall, it appears that Congress intended to
remove from the scope of bargaining threshold determinations as to what
duties and responsibilities will constitute a given position and the
placement of that position in a class for purposes of personnel and pay
administration. Thus, in order to ensure uniformity with regard to the
classification of positions throughout the Federal service, such
classification matters have been excluded from the duty to bargain under
the Statute. Accordingly, the Authority has held that bargaining
proposals directly relating to the classification of positions do not
concern "conditions of employment" and therefore are not within the duty
to bargain under the Statute. See, e.g., Police Association of the
District of Columbia and United States Department of the Interior,
National Park Service, National Capital Region, 11 FLRA No. 99 (1983);
National Federation of Federal Employees, Local 862 and Tooele Army
Depot, Tooele, Utah, 3 FLRA 455 (1980); and American Federation of
Government Employees, Meat Graders Council, AFL-CIO and Department of
Agriculture, Food Safety and Quality Service, Meat Grading Branch,
Washington, D.C., 8 FLRA No. 25 (1982) (Union Proposal IV).
However, not all matters related to classification are excluded from
the scope of bargaining. As the Authority recently stated in finding
negotiable a proposal that "(e)ach employee has a right to union
representation (in) all meetings with management involving
classification matters, including desk audits":
Contrary to the Agency's allegation, the proposal does not
concern any matters related to the classification of a position.
That is, it does not concern the specific duties or any other
matter to be taken into account in classifying a position.
(Emphasis added) /6/
Similarly, the Authority has found nothing to prevent bargaining over
such matters as repromotion opportunities for downgraded employees, /7/
certain matters related to position descriptions, /8/ or the timing of a
reclassification. /9/ Moreover, in section 7121 of the Statute,
Congress provided in effect that the classification of any position
which results in the reduction of an employee's grade or pay is subject
to coverage under the parties' negotiated grievance procedure. /10/
Thus, such matters are within the duty to bargain.
In the instant case, there is no evidence to indicate that AFGE
sought to bargain on the classification of the disputed positions--
i.e., the specific duties or any other matter to be considered in
classifying such positions. Rather, AFGE wished to bargain over the
implementation of the downgradings and their impact on affected
employees. The Authority concludes, based upon the foregoing, that
proposals concerning such matters, to the extent consonant with law and
regulation, are within the duty to bargain under the Statute. /11/
Accordingly, the Respondent's failure to notify AFGE prior to effecting
the downgrades and revising the employees' position descriptions or to
afford AFGE an opportunity to request bargaining over the impact and
implementation of such actions, constitutes a violation of section
7116(a)(1) and (5) of the Statute. Department of Health and Human
Services, Social Security Administration, 10 FLRA No. 20 (1982);
Department of the Interior, U.S. Geological Survey, Conservation
Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA No. 65
(1982); Department of the Navy, Portsmouth Naval Shipyard, Portsmouth,
New Hampshire, 5 FLRA No. 48 (1981).
In so concluding, the Authority also rejects the Respondent's
contentions that it had no obligation to bargain because the downgrading
action was covered by section 7103(a)(14)(C) of the Statute /12/ which
excludes from conditions of employment matters specifically provided for
by Federal statute, and that even if a bargaining obligation existed,
the Respondent had little discretion under the applicable statutes and
regulations to bargain on such matters. While certain matters such as
grade and pay retention are specifically provided for in the cited
provisions of law and regulation and, therefore, may not be subject to
bargaining, the Respondent has presented no evidence that all matters
relating generally to classification are removed from the scope of
bargaining either because they are specifically provided for within the
meaning of section 7103(a)(14)(C), or because the agency is left with no
discretion to act in those particular instances. Rather, as has already
been noted, matters not directly related to the actual classification of
a position may be raised in the context of collective bargaining and, to
the extent that agencies have been authorized to exercise discretion
with regard to such matters, they have a corresponding duty to bargain
with the exclusive representative. /13/
ORDER /14/
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that March Air Force Base, Riverside, California, shall:
1. Cease and desist from:
(a) Downgrading unit employees as a result of their reclassification
without first notifying the American Federation of Government Employees,
AFL-CIO, Local 1953, the employees' exclusive representative, and
affording it an opportunity to bargain concerning the impact and
implementation of such action.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, Local 1953, the employees' exclusive
representative, concerning the impact and implementation of the
downgrading of unit employees.
(b) Post at March Air Force Base, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Such
forms shall be signed by the Commanding Officer at March Air Force Base,
or his designee, and shall be posted and maintained for 60 consecutive
days thereafter in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, REGION VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., September 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT downgrade unit employees as a result of their
reclassification without first notifying the American Federation of
Government Employees, AFL-CIO, Local 1953, the exclusive representative
of our employees, and affording it an opportunity to bargain concerning
the impact and implementation of such action. WE WILL NOT in any like
or related manner interfere with, restrain, or coerce our employees in
the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute. WE WILL, upon request of the
American Federation of Government Employees, AFL-CIO, Local 1953, our
employees' exclusive representative, negotiate concerning the impact and
implementation of the downgrading of unit employees.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region VIII,
Federal Labor Relations Authority whose address is: 350 S. Figueroa
Street, 10th Floor, Los Angeles, California 90071 and whose telephone
number is: (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ Section 7103(a)(14)(B) and (C) provides as follows:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters--
. . . .
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by
Federal statute(.)
/2/ Section 7106(a)(2)(A) provides in pertinent 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--
(A) to hire, assign, direct, lay-off, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees(.)
/3/ Section 7106(b)(2) and (3) provides in relevant part as follows:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/4/ 5 CFR 511.603(a) provides, in pertinent part, as follows:
Sec. 511.603 Right to appeal.
(a) Employee appeal. An employee, or the employee's designated
representative acting on behalf of an employee, may request an
Office (of Personnel Management) decision as to:
(1) The appropriate occupational series or grade of the
employee's official position.
(2) The inclusion under or exclusion from chapter 51 of title
5, United States Code, of the official position by the employee's
agency or the Office . . . .
/5/ 124 Cong.Rec. 29183 (1978).
/6/ American Federation of State, County and Municipal Employees,
AFL-CIO, Local 2027 and Action, Washington, D.C., 12 FLRA No. 128 (1983)
(Union Proposal 1).
/7/ American Federation of Government Employees, AFL-CIO, Local 2782
and Department of Commerce, Bureau of the Census, Washington, D.C., 6
FLRA No. 56 (1981).
/8/ American Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Department of
Justice, Immigration and Naturalization Service, 8 FLRA No. 75 (1982)
(Union Proposal 14); National Treasury Employees Union and Department
of the Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981) (Union
Proposal III).
/9/ Professional Air Traffic Controllers Organization, AFL-CIO and
Department of Transportation, Federal Aviation Administration, 4 FLRA
232 (1980) (Union proposal III).
/10/ Section 7121(c)(5) provides that any grievance concerning "the
classification of any position which does not result in the reduction in
grade or pay of an employee" is excluded from coverage of a grievance
procedure negotiated under the Statute. See remarks of Representative
Udall concerning the addition of the foregoing provision to H.R. 11280,
at 124 Cong.Rec. 29185. See also U.S. Department of Labor and American
Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA No.
127 (1983).
/11/ Under these circumstances, the Respondent's refusal to bargain
over the impact and implementation of the downgrading action on the
basis that such action did not involve the exercise of a management
right which would give rise to a duty to bargain under section
7106(b)(2) and (3) of the Statute cannot be sustained. See, e.g.,
Bureau of the Census, supra, n. 7 and Internal Revenue Service, supra,
n. 8, wherein the Authority found negotiable under section 7106(b)(3)
and section 7106(b)(2), respectively, proposals relating to repromotion
opportunities for downgraded employees and the receipt of revised
position descriptions.
/12/ Supra, n. 1.
/13/ See National Treasury Employees Union, Chapter 6 and Internal
Revenue Service, New Orleans District, 3 FLRA 748 (1980).
/14/ In the absence of a request by the General Counsel or AFGE for a
status quo ante remedy herein, and in the circumstances of this case,
the Authority concludes that no such remedy is warranted. See Federal
Correctional Institution, 8 FLRA No. 111 (1982).