13:0255(44)CA - March AFB, Riverside, CA and AFGE Local 1953 -- 1983 FLRAdec CA



[ 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
       o