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U.S. Federal Labor Relations Authority

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22:0570(61)NG - AFGE Local 32 and OPM -- 1986 FLRAdec NG

[ v22 p570 ]
The decision of the Authority follows:

 22 FLRA No. 61
                                            Case No. 0-NG-985
                         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
    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
                              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.