National Treasury Employees Union, Chapter 82 (Union) and United States, Department of the Treasury, Internal Revenue Service, Martinsburg Computing Center, Kearneysville, West Virginia (Agency)

[ v59 p627 ]

59 FLRA No. 115

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 82
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
MARTINSBURG COMPUTING CENTER
KEARNEYSVILLE, WEST VIRGINIA
(Agency)

0-NG-2722

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

February 6, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal relating to the grade progression of employees being converted to a different job series. The Agency filed a statement of position to which the Union filed a response, and the Agency filed a reply to the Union's response.

      For the reasons that follow, we find that the proposal is outside the duty to bargain, and accordingly, we dismiss the petition for review.

II.     The Proposal

NTEU's previous request to negotiate over the conversion of the Help Desk 301 5/7/9's was a request to negotiate the impact and implementation of the Agency's determination to convert the Help Desk 301 5/7/9's to 335 5/ 6/7/8/9's. The area we are interested in negotiating included but was not limited to:
Grandfathering, at the two grade progression, any of the employee [sic] that is not at the journeyman level at the time the 301 to 335 conversion becomes effective.

III.     Meaning of the Proposal

      The proposal is in response to the Agency's decision to convert the subject unit employees' positions from GS-301-5/7/9 User Support Specialists to GS-335-5/6/7/8/9 Computer Assistants. The parties agree that the proposal would require the Agency to allow employees who are not at the journeyman level at the time the conversion becomes effective to retain their two-grade progression until they reach that level, which is the highest grade in the career ladder progression.

IV.     Positions of the Parties

A.     Agency

      The Agency contends that the proposal is outside the duty to bargain because it concerns a matter relating to the classification of positions, which is not a condition of employment within the meaning of § 7103(a)(14)(B) of the Statute. [n1] The Agency asserts that the assignment of a particular pay level or grade level to a position based on its duties and responsibilities is part of the classification process. Therefore, according to the Agency, by requiring the Agency to maintain a certain grade level progression, the proposal concerns a classification matter. According to the Agency, even if the proposal requires only a delay in reclassifying the employees, as asserted by the Union in its response, it still involves a classification matter by precluding the Agency from taking such action during that time period.

      In disputing the Union's contention that the proposal is within the duty to bargain under Authority precedent because the affected employees were downgraded, the Agency claims that: (1) two of the employees received promotions; and (2) the grade level of the other two employees remained the same. Therefore, according to the Agency, the reclassification did not result in the reduction of grade or pay of the employees. The Agency further contends that the Union's reliance on March Air Force Base, Riverside, Cal., 13 FLRA 255 (1983) (March AFB) is misplaced [ v59 p628 ] because that case, unlike the instant case, involved the downgrade of certain employees.

      In addition, the Agency claims that it did not violate Articles 26 § 2A. and 47 § 1S.1 of the parties' agreement as alleged by the Union. [n2] In this regard, the Agency asserts that Article 26 refers to notice of changes in position classification standards and the standards of the positions in dispute did not change. According to the Agency, Article 47 concerns notice regarding conditions of employment and because classification matters that do not result in downgrades are not conditions of employment, there was no requirement to provide notice.

      Finally, the Agency asserts that it was required by the Office of Personnel Management (OPM) to reclassify the positions in dispute under 5 U.S.C. § 5346(b), and that the proposal is contrary to this law because it requires the Agency to disregard this reclassification mandate. [n3] 

B.     Union

      The Union contends that the proposal does not preclude the Agency from reclassifying certain employees and, thus, does not involve a classification matter. In this regard, the Union claims that the proposal only requires that the Agency delay implementation of the reclassification until the affected employees reach the journeyman level under their current classification.

      The Union also contends that the proposal is within the duty to bargain because the facts in the instant case are similar to those in March AFB, where the Authority found that the agency violated § 7116(a)(1) and (5) of the Statute by not notifying the union and providing it an opportunity to bargain over the impact and implementation of a classification process that resulted in the downgrade of bargaining unit employees. In this regard, the Union claims that the Authority has found that the classification of any position that results in the reduction of an employee's grade or pay is a matter within the duty to bargain. According to the Union, the reclassifications in this case will result in the loss of promotions for the affected employees and they will "have in effect been downgraded via a denial of pay retention." Union's Response at 6. The Union further asserts that the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute.

      In addition, the Union claims that the Agency violated Articles 26 § 2A. and 47 § 1S.1 of the parties' agreement by not providing the Union with notice and the opportunity to bargain over the proposed reclassification.

      Finally, the Union disputes the Agency's "implied contentions" that: (1) it had no obligation to bargain over the reclassification pursuant to 5 U.S.C. § 7103(a)(14)(C) because it is a matter specifically provided for by statute; and (2) even if a bargaining obligation existed, the Agency had little discretion under applicable law and regulations to bargain on such matters. [n4] Union's Response at 4. In this regard, the Union contends that because this matter is not directly related to classification, the Agency has a duty to bargain with the Union over this matter to the extent it had discretion to do so.

V.     Analysis and Conclusions

A.     The Union's proposal concerns a classification matter.

      Section 7103(a)(14)(B) excludes policies, practices, and matters relating to the classification of any position from the definition of "conditions of employment" and, by extension, the duty to bargain. In applying that section, the Authority relies on the definitions of the terms "classification" and "position" that appear in 5 C.F.R. § 511.101. See, e.g., Int'l Fed. of Prof'l and Technical Eng'rs, Local 49, 52 FLRA 665, 667 (1996). Pursuant to those definitions, the term "classification" means: "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[;] and the term "position" means: "the work, consisting of the duties and responsibilities, assigned by competent authority for performance by an employee." 5 C.F.R. § 511.101(c) and (e). Under the system established by OPM, classification entails the identification of the appropriate title, series, grade, and pay system of a position. See 5 C.F.R. § 511.701(a) (a [ v59 p629 ] classification action is the determination to establish or change the title, series, grade or pay system of a position).

      The Authority has held that the assignment of a particular "pay level" or "grade level" to a position based on its duties and responsibilities is part of the classification process. See NAGE, Fed. Union of Scientists and Eng'rs, Local R1-144, 42 FLRA 1285, 1293-94 (1991) (proposal requiring that the career ladder of a particular position be extended to "a grade and pay level of GS-15" concerns the classification of a position within the meaning of § 7103(a)(14)(B)). Here, based on the plain wording of the proposal and the parties' statements, it is clear that the proposal would require the Agency to take actions to ensure that the affected employees who are not at the journeyman level at the time the conversion becomes effective retain their two-grade progression until they reach the journeyman level. Thus, the proposal effectively requires the Agency to classify the employees' positions in a particular way -- a two-grade progression.

      The Union's contention that the proposal only delays the reclassification process fails to establish that the proposal does not involve a classification matter. In this regard, the Authority has previously held that a proposal requiring an agency to maintain a particular classification for a certain period of time concerns a classification matter. See NAGE, Local R14-23, 54 FLRA 1302, 1309-10 (1998), review denied sub nom. NAGE, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Sept. 21, 1999) (proposal that required the agency to maintain a classification until desk audits were performed concerned a classification matter). In this case, the proposal effectively requires the Agency to maintain the current classification of the employees' positions for a particular time period and, thus, directly identifies the grade progression and pay level of the affected employees for this period of time.

      Furthermore, the Union's reliance on March AFB is misplaced. In March AFB, where employees were downgraded from GS-6 to GS-5, the Authority found that the agency violated § 7116(a)(1) and (5) of the Statute by not providing the union notice and opportunity to bargain over the implementation of the downgradings and their impact on affected employees. In reaching this conclusion, the Authority determined, among other things, that under § 7121(c)(5) of the Statute, the classification of any position that results in the reduction of an employee's grade or pay is subject to coverage under the parties' negotiated grievance procedure and, therefore, proposals concerning such matters are within the duty to bargain. See March AFB, 13 FLRA at 259-60. Unlike March AFB, the affected employees in the instant case were not downgraded as a result of the reclassification. In this regard, the Authority has found that a "downgrade is similar to a reduction in grade[.]" Army and Air Force Exch. Serv., 33 FLRA 815, 817 (1988). Although it may take an employee a longer period of time to reach the journeyman level as a result of the reclassification, there is no dispute that the reclassification did not result in the reduction of grade or pay of any of the affected employees. As the employees in this case were not downgraded, March AFB is not controlling.

      Based on the foregoing, we conclude that the proposal concerns the classification of a position within the meaning of § 7103(a)(14)(B) of the Statute and, therefore, does not concern a condition of employment. Accordingly, we find that the proposal is outside the duty to bargain.

B.     This case does not present a bargaining obligation dispute within the meaning of 5 C.F.R. § 2424.30.

      The Union asserts, and the Agency denies, that the Agency violated Articles 26 and 47 § 1 S.1 of the parties' agreement by not providing the Union notice and an opportunity to bargain regarding the conversion of the affected employees' positions.

      Relying on 5 C.F.R. § 2424.30, the Authority has held that the bargaining obligation disputes that are appropriately resolved in a negotiability proceeding are limited to those concerning an obligation to bargain under the Statute. [n5] See Nat'l Ass'n of Agric. Employees, Branch 11, 57 FLRA 424, 427 (2001). Here, the parties' dispute involves only whether the Agency is required to bargain under the parties' agreement; it does not involve the Agency's obligation to bargain under the Statute. Consequently, we find that there is no basis for addressing the Union's claim. [n6] See AFGE, Local 3529, 57 FLRA 172, 176 (2001).

VI.     Order

      The petition for review is dismissed.



Footnote # 1 for 59 FLRA No. 115 - Authority's Decision

   Section 7103(a)(14)(B) provides, in pertinent part:

(14) "conditions of employment" means personnel policies, practices, and matters . . . affecting working conditions, except that such term does not include policies, practices, and matters--. . . .
(B) relating to the classification of any position[.]

Footnote # 2 for 59 FLRA No. 115 - Authority's Decision

   Article 26 § 2A. provides, in pertinent part, that the Agency "will inform the Union as soon as possible when . . . changes in position classification standards result in classification changes[.]" Article 47 § 1S.1 provides, in relevant part, that "no changes will be implemented by the [Agency] until proper and timely notice has been provided to the Union, and all negotiations have been completed . . . ."


Footnote # 3 for 59 FLRA No. 115 - Authority's Decision

   5 U.S.C. § 5346(b) provides, in pertinent part, that "[w]hen [OPM] finds that a position is not placed in its proper occupation and grade . . . it shall . . . place the position in its appropriate occupation and grade and shall certify this action to the agency. The agency shall act in accordance with the certificate . . . ."


Footnote # 4 for 59 FLRA No. 115 - Authority's Decision

   Section 7103(a)(14)(C) of the Statute excludes from the definition of conditions of employment matters that are "specifically provided for by Federal statute[.]"


Footnote # 5 for 59 FLRA No. 115 - Authority's Decision

   A "bargaining obligation dispute" involves a disagreement concerning "whether . . . the parties are obligated to bargain over a proposal that otherwise may be