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