22:0570(61)NG - AFGE Local 32 and OPM -- 1986 FLRAdec NG
[ v22 p570 ]
The decision of the Authority follows:
22 FLRA No. 61 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. 0-NG-985 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of 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 the following Union proposal. /1/ Employees will receive a letter stating that they performed work in specially referred correspondence from the OPM Director, Compensation Director and Retirement Program Director's Offices on a priority basis for the OPF's. II. Positions of the Parties The Agency contends that there has not been a substantial change in working conditions which would require bargaining on impact and implementation. The Agency also alleges, in essence, that sole and exclusive control over the content of an Official Personnel Folder (OPF) is vested in the Office of Personnel Management (OPM) and individual Federal agencies by law, namely 5 U.S.C. Section 1302, Executive Order 12107, and the Privacy Act, 5 U.S.C. Section 552a. Thus, since this proposal requires bargaining on the content of an OPF, it is inconsistent with these authorities and the implementing Government-wide regulations set out in Title 5 of the Code of Federal Regulations and the Federal Personnel Manual and does not constitute a condition of employment within the meaning of section 7103(a)(14) of the Statute. The regulations cited by the Agency are 5 CFR Parts 293 and 294 and FPM Supplement 293-31. The Union contends that it is entitled to bargain over matters affecting working conditions whether or not the Agency has acted to change those working conditions. It also argues that none of the Government-wide laws or regulations cited by the Agency prohibit placing records related to work assignments in an employee's OPF or prevent bargaining regarding the exercise of agency discretion in maintaining the OPF's of its employees. III. Analysis A. Duty to Bargain When a Union files a negotiability appeal unser section 7105(a)(2)(E) of the Statute, section 7117(c) entitles it to a decision on the negotiability issues in the appeal. To the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of a case, such issues should be raised in other appropriate proceedings. American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). Hence, the Agency's contention that under the circumstances it has no duty to bargain on the disputed proposal is not relevant in this negotiability dispute. B. Law and Government-wide Regulations Employees in the priority correspondence unit previously responded to correspondence from Members of Congress and the President, among others. Due to a change in assigned work, these employees now also respond to correspondence referred to them from the offices of the OPM Director, Associate Director for Compensation, and the Assistant Director for Retirement Programs. This proposal would require the Agency to note this change is assigned work in a letter to be included in the employee's OPF. Such a letter, in our opinion, would constitute in effect an addendum to the employee's position description in order to more accurately describe the duties actually assigned to these employees. It is well established that the duty of an agency under the Statute is to negotiate with an exclusive representative of an appropriate unit of its employees concerning conditions of employment affecting them to the extent of its discretion. That is, unless such matters are inconsistent with Federal law, including the Statute, or Government-wide rule or regulation or agency regulation for which a compelling need exists, they are within the duty to bargain. See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 771 (1980), aff'd sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). Because the validity of the classification of an employee's position and, derivatively, the employees's rate of pay are dependent on the accuracy of the employee's position description, proposals concerning the accuracy of such position descriptions have long been held to be within the duty to bargain. See American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153, 160 (1979), aff'd 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. American Federation of Government Employees v. Federal Labor Relations Authority, 455 U.S. 945 (1982). Thus, unless this proposal is inconsistent with Federal law or Government-wide regulation, as claimed by OPM, it would be within the duty to bargain. OPM has not established that inclusion of an addendum in an employee's OPF is inconsistent with law or Government-wide regulation. Specifically, although OPM claims that it has sole and exclusive authority under law and executive order to determine the content of an OPF, FPM Supplement 293-31, promulgated to implement such laws and executive orders, indicates that agencies have discretion to determine what records of a temporary nature may be filed in an OPF. That is, the Supplement establishes in subchapter S5-5(7) that permanent records, designated by OPM in subchapter S5-6(1), are to be filed on the right side of the OPF and records of a temporary nature are to be filed on the left side. Position descriptions are not designated as permanent records in subchapter S5-6(1). Rather, subchapter S5-6(2) indicates that "(b)ecause (temporary) records vary widely from agency to agency, no list of them in included" and expressly notes that a position description is an example of a temporary record. Similarly, OPM has not established that this proposal is inconsistent with any portion of the Privacy Act, 5 U.S.C. Section 552a, or with the implementing regulations set out in 5 CFR Part 293. Certainly, an accurate description of the duties assigned to an employee meets the requirement stated in 5 U.S.C. Section 552a(e)(1) and restated in 5 CFR Section 293.103(a) that records maintained on an employee be relevant and necessary to accomplish a Federal personnel management purpose. In fact, 5 CFR Section 293.311 expressly provides that a position description is among the information maintained by an agency in an OPF which may be disclosed to the public pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Section 552. Finally, while OPM also relies on 5 CFR Part 294, this part concerns the procedures for obtaining information under the FOIA and not what information will be maintained. IV. Conclusion Based on the foregoing analysis, the Authority finds that the proposal concerns a condition of employment and is not inconsistent with Federal law or Government-wide regulation. Therefore, the proposal is within the duty to bargain under section 7117 of the Statute. V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning the Union proposal. /2/ Issued, Washington, D.C. July 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union withdrew a second proposal. (2) In finding the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.