14:0427(67)NG - AFGE Local 3477 and Consumer Product Safety Commission -- 1984 FLRAdec NG
[ v14 p427 ]
14:0427(67)NG
The decision of the Authority follows:
14 FLRA No. 67
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3477
Union
and
CONSUMER PRODUCT SAFETY
COMMISSION
Agency
Case No. O-NG-587
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
relating to the negotiability of four Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
The purpose of this agreement is to provide the sole procedures
for a Performance Appraisal System for bargaining unit employees
in the New York Regional Office, CPSC. It shall be consistent
with applicable laws and government-wide regulations.
The Agency contends that Union Proposal 1 is inconsistent with law
and regulation in that while it purports to be the "sole procedures"
governing performance appraisal for unit employees, the proposal
nevertheless does not cover all matters required by 5 U.S.C. 4302 and 5
CFR Part 430. Specifically, the Agency argues that because the proposal
does not cover such matters as appraisal of an employee on detail /1/ it
cannot, consistent with law and regulation, replace the performance
appraisal procedures established by the Agency so as to constitute the
"sole procedures." Contrary to the Agency's argument, the language of
the proposal itself specifically provides that the procedures
established by the parties' agreement are to be interpreted in a manner
consistent with law and regulation. Moreover, the Union states in
explaining the intent thereof, that the proposal is not meant to
replace, but to supplement provisions of the Agency's procedures and the
requirements of law and regulation. Therefore, since the Agency does
not allege any other grounds of nonnegotiability, nor are any apparent,
Union Proposal 1 is within the Agency's duty to bargain under the
Statute.
Union Proposal 2
A critical element is a job element which is of such importance
that if it is not performed adequately, acceptable performance of
the job as a whole is not possible.
The Agency contends that Union Proposal 2, which defines the term
"critical element," is inconsistent with the definition of that term set
forth in Office of Personnel Management regulations /2/ and is outside
the duty to bargain. However, in this regard, the proposal has the same
effect as Union Proposal 3 in American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 3 FLRA 784 (1980). In that case, the Authority held
that the proposal at issue, which defined a critical element as "one
which is so important that inadequate performance of it outweighs
acceptable or better performance in other aspects of the job," was not
inconsistent, i.e., "incompatible or irreconcilable," with the
regulatory definition merely because it was silent with respect to
remedial action. Office of Personnel Management at 787. Moreover, the
Authority found that in all cases involving such remedial action, where
the proposal was silent, the regulation would govern. Similarly, with
respect to the proposal in the instant case, the Union states that it
"in no way precludes or prohibits . . . the actions required by the . .
. regulation" from being taken. Thus, for the reasons more fully set
forth in the Office of Personnel Management decision, Union Proposal 2
herein is not inconsistent with applicable regulation and, therefore, is
within the Agency's duty to bargain.
Union Proposal 3
Awards: Performance appraisals will be the sole consideration
in granting Quality Step Increases and sustained Superior
Performance.
The Agency contends that Union Proposal 3, by making performance
appraisals the sole consideration, is inconsistent with law and
regulation in that it thereby eliminates other statutory and regulatory
requirements for granting quality step increases and awards for
sustained superior performance, such as limitations as to eligibility
/3/ and Office of Personnel Management approval of agency performance
appraisal plans. Contrary to the Agency, the requirement that
performance appraisal be the sole consideration in granting such awards
is not intended to preclude management from implementing other statutory
and regulatory requirements. Based on the Union's statements in the
record, it appears that the proposal is intended to ensure, consistent
with law and regulation, that quality step increases and awards for
sustained superior performance will be based only on the results of
performance appraisals obtained under a performance appraisal system
established pursuant to 5 U.S.C. 4302. /4/ Thus, nothing in the
proposal would preclude management, for example, from determining that
an employee who was qualified for a quality step increase was
nevertheless not eligible in terms of other statutory or regulatory
requirements. The proposal is susceptible to this interpretation and
the Authority specifically adopts it in reaching its conclusion.
Therefore, based on this interpretation the proposal is not inconsistent
with law and regulation and is within the duty to bargain.
Union Proposal 4
At the beginning of the appraisal period, a copy of the
appraisal form shall be given to each employee. The form shall
show the critical and non-critical elements and the corresponding
performance standards. An explanation will also be given of the
three summary ratings and how they will be applied. A written
notice will be provided each employee stating that within-grade
increase will be granted for an overall average appraisal rating
of at least fully satisfactory except that a rating of
unsatisfactory in critical element may be cause for denial of a
within-grade increase.
The Agency contends that Union Proposal 4, insofar as it provides
that a rating of unsatisfactory in a critical element may be cause for
denial of a within-grade pay increase, is inconsistent with an
applicable regulation, 5 CFR 430.202(e), /5/ which requires the denial
of such an increase when an employee's performance is below the minimum
standard for a critical element. In response, to the Union amended its
proposal, in compliance with the regulation, to provide that an
unsatisfactory rating would require the denial of a within-grade
increase. /6/ Thus, by the amendment of its proposal, the Union has, in
effect, eliminated the Agency's objections and the parties' dispute as
to the negotiability of the proposal has been rendered moot. For this
reason, the Authority need not consider the proposal further herein.
See 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 4).
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 Union Proposals
1, 2, and 3. /7/ IT IS FURTHER ORDERED that the Union's petition for
review as to Union Proposal 4 be, and it hereby is, dismissed. Issued,
Washington, D.C., May 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ 5 CFR 430.203(h).
/2/ 5 CFR 430.202(e) provides as follows:
Sec. 430.202. Definitions.
. . . .
(e) "Critical element" means a component of an employee's job
that is of sufficient importance that performance below the
minimum standard established by management requires remedial
action and denial of a within-grade increase, and may be the basis
for removing or reducing the grade level of that employee. Such
action may be taken without regard to performance on other
components of the job.
/3/ For example, 5 U.S.C. 5336 and implementing regulations contained
in 5 CFR 531.506(a), provide that a quality step increase may not be
granted to an employee who has received a quality step increase within
the preceding 52 consecutive calendar weeks. See also Federal Personnel
Manual, chap. 451, subchap. 6-3.b.; chap. 531, subchap. 4-12.
/4/ Union Brief at 5-6. In this regard, 5 U.S.C. 4302(b)(4) requires
that performance appraisal systems established thereunder provide for
"recognizing and rewarding employees whose performance so warrants."
Further, regulations implementing this statutory provision require that
performance appraisals under such systems be used as a basis, among
others, for decisions to grant awards and pay increases, including
quality step increases. 5 CFR 430.203(i)(2). Conversely, regulations
implementing the statutory provisions authorizing awards for superior
accomplishment, 5 U.S.C. 4503, require use of the agency's performance
appraisal system as a basis for granting awards for sustained superior
performance of assigned duties, 5 CFR 451.206(h); and regulations
implementing statutory provisions authorizing the granting of quality
step increases, 5 U.S.C. 5336, require that the decision to grant such a
pay increase be supported by an employee's most recent performance
appraisal, 5 CFR 531.505.
/5/ See note 2, supra.
/6/ Union Brief at 6.
/7/ In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.