[ v22 p570 ]
22:0570(61)NG
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.