[ v11 p247 ]
11:0247(52)NG
The decision of the Authority follows:
11 FLRA No. 52
NATIONAL TREASURY EMPLOYEES UNION
Union
and
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE,
WASHINGTON, D.C.
Agency
Case No. O-NG-250
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of a Union proposal establishing a
crediting plan for bargaining unit positions. /1/ The text of the
proposal is set forth in the Appendix.
The Union's proposal would establish a crediting plan for bargaining
unit positions whereby applicants would be evaluated against job
requirements for positions based upon five factors (criteria). The
Agency essentially alleges that the proposal is inconsistent with
management's rights to hire, to determine the personnel by which Agency
operations shall be conducted, and to make selections for appointments
from among properly ranked and certified candidates for promotion or
from any other appropriate source under section 7106(a)(2) of the
Statute. The Agency also contends the proposal is inconsistent with
Federal Personnel Manual (FPM) Supplement principles concerning the
disclosure of crediting plans and with FPM merit promotion requirements.
In National Treasury Employees Union and NTEU Chapters 153, 161 and
183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983), the U.S.
Customs Service similarly contended that two union proposals which
established crediting plans for merit promotions regarding two
bargaining unit positions were inconsistent with management's rights
under section 7106(a)(2). In that case, because the proposals only
established the criteria for evaluating candidates, any of which
management could select for appointment, and further, since under such
crediting plans management would retain the right to determine the
personnel and the knowledge, skills, and abilities which an employee
must possess in order to do the work of the position, the Authority
found the proposals constituted a negotiable procedure which did not
prevent the agency from acting at all to exercise its rights under
section 7106(a)(2) to make selections when filling positions, to
determine the personnel by which agency operations would be conducted,
or to hire employees in the agency. The Authority also considered
therein an agency argument that the provisions of subchapter S6, FPM
Supplement 335-1 precluded it from disclosing or negotiating over the
content of its crediting plans. The Authority found that disclosure of
the crediting plans set forth in the union's proposals was not
inconsistent with the provisions of the FPM Supplement because if all
candidates had equal access to the content of the crediting plan, no
candidate would be disadvantaged by its disclosure nor would the
selection process be compromised. Thus, the FPM Supplement did not bar
negotiations on the proposed crediting plans in that case.
As already mentioned, the proposal in dispute herein would establish
a crediting plan by which the qualifications of candidates for
bargaining unit positions would be evaluated against the job
requirements established by management to determine the extent to which
each candidate possesses the qualifications for the position. Nothing
in the proposal would require the Agency to select a specific candidate
or to make a selection from a particular certificate of candidates. In
this regard, the Union states, "the union proposal is clearly related
only to procedures utilized in the promotion process and in no form or
manner restricts or impedes management's right to make the ultimate
selection." /2/ This crediting plan proposal is thus substantially
identical to Union Proposals 1 and 2 in U.S. Customs Service, Region II
and for the reasons set forth in that case is not inconsistent with
management's rights under section 7106(a)(2) of the Statute nor with the
disclosure principles set forth in FPM Supplement 335-1, subchapter
S6-1.
As to the Agency's additional argument that the proposal is
inconsistent with a Government-wide rule or regulation under section
7117(a)(1) of the Statute, /3/ Requirement 1 of subchapter 1-4, chapter
335 of the FPM provides:
Each agency must establish procedures for promoting employees
which are based on merit and are available in writing to
candidates. . . . Actions under a promotion plan-- whether
identification, qualification, evaluation, or selection of
candidates-- . . . shall be based solely on job-related criteria.
Under the plain language of portions of Sections 5K(1) and (3) of the
proposal, when applicants are evaluated for a position, points or credit
will be assigned for non job-related experience and education. Although
an agency has discretion in its development of merit promotion
procedures under chapter 335 of the FPM, such procedures must be based
on job-related factors. Therefore, under the cited FPM requirement, an
agency would not have the discretion to establish an evaluation plan
which allows credit for a factor which has no relation to the position
being filled. Thus, these portions of Sections 5K(1) and (3) of the
proposal are inconsistent with chapter 335, subchapter 1-4, Requirement
1, of the FPM. Thus, it must be decided whether the merit promotion
requirements in chapter 335 of the FPM constitute a "Government-wide
rule or regulation" within the meaning of the Statute. Section 335.103
of part 335 of title 5, Code of Federal Regulations, requires each
agency to adopt and administer a "program designed to insure a
systematic means of selection for promotion according to merit. The
promotion program shall conform with the standards and requirements of
OPM." The requirements for agency merit promotion plans, as mentioned
above, are set forth in chapter 335, subchapter 1-4, of the FPM and are
applicable to Federal civilian employees in the competitive service
within the executive branch of the Government. /4/ Thus, FPM chapter
335, subchapter 1-4, is generally applicable to the Federal civilian
work force so as to be "Government-wide" within the meaning of section
7117(a)(1) of the Statute. See National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748
(1980).
As to whether the requirements of FPM, chapter 335, subchapter 1-4,
constitute a "rule or regulation" within the meaning of section
7117(a)(1), as stated previously, the Office of Personnel Management
(OPM) is required by regulation to establish standards and requirements
with which agency promotion programs must conform. See 6 CFR 335.103.
The requirements regarding agency procedures for promoting employees are
set forth in subchapter 1-4 of chapter 335 and constitute OPM's
determination of the policies necessary to insure that agency promotion
procedures are based on merit. Thus, the Authority finds that FPM,
chapter 335, subchapter 1-4, regarding merit promotion requirements, is
a Government-wide rule or regulation within the meaning of section
7117(a)(1) of the Statute, and would bar negotiation on a conflicting
union proposal. See National Federation of Federal Employees, Local
1497 and Department of the Air Force, Lowry Air Force Base, Colo., 9
FLRA No. 20 (1982). Therefore, since portions of Sections 5K(1) and (3)
of the proposal would require the Agency to allow credit for non
job-related criteria, these portions are inconsistent with the merit
promotion requirements of chapter 335 of the FPM and are outside the
duty to bargain under section 7117(a)(1) of the Statute.
As to the balance of the proposal, Sections 5K(4) and (5) and
portions of (1) and (3) specifically provide for the evaluation of
applicants in relation to the position being filled and thus would
constitute job-related criteria. Section 5K(2) does not state that the
consideration of applicants' performance evaluations must be in terms of
the applicant's ability to perform in the vacant position but there is
nothing in the language of the proposal or the record indicating the
Union intended otherwise. Moreover, Requirement 3 of subchapter 1-4
expressly provides that, "Due weight shall be given to performance
appraisals and incentive awards;" thus, under FPM requirements, an
agency's merit promotion procedures should provide for consideration of
applicants' performance appraisals. Therefore, the Authority finds that
Sections 5K(2), (4), (5) and the job-related portions of Sections 5K(1)
and (3) of the proposal are not inconsistent with the merit promotion
requirements of subchapter 1-4 of chapter 335 of the FPM.
ORDER
Pursuant to section 2424.10 of the Authority's Rules and Regulations
(5 CFR 2424.10 (1982)), IT IS ORDERED that the Union's petition for
review relating to the non job-related portions of Sections 5K(1) and
(3) of the proposal be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain on all other portions of the
proposal. /5/
Issued, Washington, D.C., February 3, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
Union Proposal
Article 7 Section 5
K. The Board will evaluate each applicant based upon each of these
five (5) factors, assigning points for each factor based upon the
following considerations:
1) Experience: (Not to exceed eight (8) points in total
scores) - Experience will be carefully evaluated and credited in
terms of its type, quality, recency and depth. Using the
following three quality levels, indicate the level to which the
experience has prepared the candidate to perform the duties of the
position being filled.
Excellent (8 points): Experience in your judgment most
relevant for the position being evaluated; i.e., experience in
the same position, a trainee or understudy for more than one year,
or a position next lower in the line of work to the position being
evaluated that gives good knowledge with the skills and abilities
required to perform the work of the position being filled. (There
would be little or no need for additional training to perform the
duties of the position.)
Good (6 points): Experience in your judgment that is good for
the position being filled; i.e. a trainee or understudy with less
than one year in the position next below in the same line of work
as the position being evaluated; positions similar to those
required for the position being filled. (A need for a limited
amount of additional training would be indicated).
Moderate (4 points): Experience in your judgment that is
acceptable and qualifying but provides only a general knowledge of
skills, techniques and abilities which may be adopted to the job
being filled; stale experience more than five years old without
intervening experience in the same line of work. (A need for
extensive training would be indicated).
Unrelated (1-3 points).
2) Supervisory Evaluations of Performance: (Not to exceed 6
points). The overall performance evaluation will be evaluated to
determine which of the following evaluation ratings are most
indicated:
Outstanding = 6 points
Exceeds Expectations = 5 points
Moderate = 4 points
Weak = 1-3 points
3) Education: (Not to exceed 4 points). Formalized study
successfully completed in a school above high school level will be
evaluated and rated in terms of the following:
(Excellent) = 4 points
(Good) = 3 points
(Moderate) = 2 points
(Limited) = 1 point
Job Related Non Job Related
Masters Degree 4 3
Bachelor Degree 3 2
90 Semester Hours 2(18 1
30-89 Semester Hours 1 0
4) Awards: (Not to exceed 4 points) - Evaluate in terms of
relative importance to the requirements of the position being
filled. Consider the qualifications demonstrated or implied by
the awards, such as initiative, resourcefulness, overall
performance, etc. The award indicated should be evaluated as
indicated below:
Quality Performance Increase (QPI) Award 4 points
Outstanding Performance Rating 4 points
Honor Award 4 points
Sustained Superior Performance (SSP) Award 3 points
Special Achievement Award 3 points
Approved Suggestion 2 points
5) Miscellaneous, including interviews, training, outside
activities, etc. (Not to exceed 3 points). The factor allows
credit for an applicant's additional activities which demonstrate
his/her potential to perform in the vacant position.
(Excellent) = 3 points
(Good) = 2 points
(Moderate) = 1 point
(Limited) = 0 points
--------------- FOOTNOTES$ ---------------
/1/ It is noted that the Union has filed numerous unfair labor
practice charges concerning the Agency's refusal to disclose various
crediting plans. The Agency claims that the issues involved in those
charges and in the instant case are the same and the Union must select,
pursuant to section 2423.5 of the Authority's Rules and Regulations,
whether to proceed first with the unfair labor practice charges or this
negotiability case. Since the issues involved in the unfair labor
practice charges concern solely the Agency's failure to disclose the
contents of crediting plans whereas this appeal concerns the
negotiability of the contents of a crediting plan, it is clear that the
issues involved are not the same and no selection is required.
/2/ Union Reply Brief at 4.
/3/ Section 7117(a)(1) provides:
Sec. 7117. Duty to bargain in good faith; compelling need; duty to
consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/4/ See 5 U.S.C. 3301-3302, 5 CFR 210.101(b), E.O. 10577, and E.O.
9830.
/5/ In deciding that Sections 5K(2), (4), (5) and the job-related
portions of Sections 5K(1) and (3) of the proposal are within the duty
to bargain, the Authority makes no judgment as to their merits.