HOW NTEU DEALS WITH RECLASSIFICATIONS
Assume that management wants to change the series classification from one series to another without any change in the employees’ grade, work, or location. What can the union do about that given that it cannot grieve to overturn the decision? A recent NTEU victory at FLRA shows us one way to do that while also getting a major remedy imposed on the agency. (See NTEU, 66 FLRA 528)
The agency informed NTEU that it intended to reclassify some employees to another series and refused to negotiate when NTEU requested. Management alleged that the change was de minimis. At first glance, it looked like NTEU would lose this one because without a change in grade, work or location a very good argument could be made that there was no impact. But the union traced the impact of the change further and found that by moving the employees to another series management moved them out of their current incentive award consideration group into another one. That meant there was a potential that the reclassified employees would lose awards money.
That was enough for the arbitrator and FLRA to find a violation of the bargaining obligation. The Authority said, “The Authority has found that changes to conditions of employment were greater than de minimis where, for example, they affected employees’ earning potential.”
The union could just as easily proven there was an impact by pointing to what the new series did to the employees’ ability to qualify for promotion under the OPM Qualification Standards, where often a change in series makes you ineligible for jobs for which you were previously eligible to compete. Or it might have tracked down what the reclassification did to the employees’ competitive area and level in a RIF situation. At times, a change in series also denies employees contract benefits such as AWS or telework. Both would typically be considered to be an adverse impact.
Prior to these arbitration and FLRA decisions, the FLRA had remanded an earlier decision from the same arbitrator on these facts. The arbitrator had denied the grievance because the agency had alleged that nothing related to position classification is grievable—even if the grievance only alleges an unfair labor practice. The Authority rejected that sweeping allegation saying—
In this regard, classification entails the identification of the appropriate title, series, grade, and pay system of a position. See 5 C.F.R. § 511.701(a) (defining “agency classification actions” as the determination to establish or change the title, series, grade or pay system of a position). Consistent with the foregoing, “not all matters related to classification are excluded from the scope of bargaining.” In particular, the Authority has held that such matters as changes in position descriptions and the timing of reclassifications are bargainable. Although the Agency attempts to distinguish those decisions on the ground that they involved downgrades, nothing in the decisions indicates that an agency is required to bargain over the impact and implementation of reclassifications only when they result in downgrades. In fact, in DOT, the Authority found a duty to bargain where some of the reclassifications actually resulted in promotions. Thus, the fact that no employees were downgraded in the instant case does not demonstrate that the Agency lacked a duty to bargain over the impact and implementation of the reclassifications. Here, there is no contention that the Union either grieved or sought to bargain over the title, series, grade, and/or pay systems of affected employees. Instead, as stipulated by the parties, the issue before the parties was whether the Agency improperly implemented the reclassification without bargaining with the Union. (Internal citations omitted) (See NTEU, 64 FLRA 281)
As for the remedy, the arbitrator ordered that the agency go back to 2006 when it first made this change and determine year by year for each involved employee how much money he/she lost during that year’s award cycle because of the move to a different awards group. It then must pay the employees any difference they are owed. That will mean a lot of work for the agency in addition to the back pay. Hopefully, that will underscore the value to the agency of settling cases early, e.g., agreeing to keep them in the same awards group for a year or two.
As for lessons this case teaches unions, high on the list is the right to challenge and delay reclassification actions until impact and implementation issues are bargained.