[ v13 p255 ]
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).