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17:0832(112)NG
The decision of the Authority follows:
17 FLRA No. 112
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1980, AFL-CIO
Union
and
U.S. DEPARTMENT OF
AGRICULTURE, FARMERS
HOME ADMINISTRATION
Agency
Case No. 0-NG-724
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 presents issues
concerning the negotiability of the following Union proposal:
When undergoing a major reduction-in-force, the State Director
will request the National Office of Farmers Home Administration to
request early retirement authorization from the Office of
Personnel Management, in accordance with Public Law 95-454,
Section 306. Performance appraisals of employees in the
reduction-in-force competitive area will have their appraisals
frozen when a decision is made to implement a reduction-in-force.
(Only the underlined portion of the proposal is in dispute.)
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
The proposal, on its face, would require the Agency to freeze bargaining
unit employees' performance appraisals at the time a decision is made to
implement a reduction-in-force (RIF). The Agency has refused to bargain
over the disputed proposal contending that the proposal is inconsistent
with the Federal Personnel Manual (FPM), chapter 351, subchapter
2-6a(1), a Government-wide regulation, and, thus, is outside the duty to
bargain. /1/ The Union in essence argues that the proposal is not
inconsistent with the FPM since the proposal is not incompatible or
irreconcilable with that regulation, but, instead, is negotiable as a
procedure management will observe in the exercise of its right to
implement a RIF.
In agreement with the Agency, the Authority finds that the disputed
proposal herein is inconsistent with chapter 351, subchapter 2-6a(1) of
the FPM and, thus, is outside the duty to bargain under section
7117(a)(1) of the Statute. /2/ The cited provision of the FPM provides
that an employee's current official performance appraisal on the date of
issuance of a specific reduction-in-force notice is the appraisal that
determines his or her retention standing in the event that a RIF occurs.
The Union's proposal, however, would require the Agency, in effect, to
consider for retention purposes the official performance appraisal of an
employee on record on the date on which the decision is made to
institute a RIF. It does not appear that in all circumstances,
especially where a significant number of employees are involved, an
agency's decision to implement a RIF and specific notice to employees
could be accomplished simultaneously, as argued by the Union. /3/ Thus,
since a decision to implement a RIF would not necessarily coincide with
specific notice to an individual employee selected for release from his
or her competitive level, the Union's proposal would require the Agency
to freeze performance appraisals at a time different from that which is
required by the FPM. For this reason, the proposal is inconsistent with
the FPM, contrary to the Union's claim.
The Authority further concludes that the FPM provision at issue
herein is a Government-wide regulation. The Office of Personnel
Management (OPM) is statutorily empowered to prescribe regulations for
the release of employees in a reduction-in-force which give due effect
to length of service and performance ratings (5 USC 3502). /4/ The
requirements as to the date performance appraisals are frozen as set
forth in the FPM constitute OPM's determination of the policies
necessary to give due effect to performance ratings. Moreover, section
351.204 of part 351 of title 5, Code of Federal Regulations (CFR),
requires each agency to follow and apply the regulations prescribed
therein when the agency determines that a RIF is necessary. In
addition, section 351.205 further authorizes the Office of Personnel
Management to establish "further guidance and instructions for the
planning, preparation, conduct, and review of reduction-in-force through
the Federal Personnel Manual system." /5/ The requirements for
determination of the effective date of employees' performance
appraisals, as mentioned above, are set forth in chapter 351 of the FPM
and are applicable to Federal civilian employees in the competitive
service within the executive branch of the Government. As such, the
applicable FPM provision, is generally applicable to the Federal
civilian work force and is "Government-wide" within the meaning of
section 7117(a)(1) of the Statute. See American Federation of
Government Employees, AFL-CIO and Headquarters, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 11 FLRA 238 (1983)
(Union Proposal 6); National Federation of Federal Employees, Local
1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9
FLRA 151 (1982); National Treasury Employees Union, Chapter 6 and
Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980).
Insofar as the Union's proposal is inconsistent with the applicable
provision of the FPM, it is outside the duty to bargain under section
7117(a)(1) of the Statute. /6/
As to the Union's assertion that the proposal is negotiable because
it is a procedure which management will observe in the exercise of its
right to implement a RIF, it cannot be sustained under the
circumstances. Under the Statute, the duty of an agency to negotiate
with a union extends to the conditions of employment affecting
bargaining unit employees except as provided otherwise by Federal law
and Government-wide rule or regulations. National Treasury Employees
Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3
FLRA 747 (1980). Therefore, a proposal is outside the duty to bargain
to the extent that it is inconsistent with any Federal law or
Government-wide rule or regulation, irrespective of whether the proposal
herein is inconsistent with a Government-wide regulation, the proposal
is outside the duty to bargain under section 7117(a)(1) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. Issued, Washington, D.C., May 8, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Chapter 351, subchapter 2-6a(1) of the FPM states as follows:
2.6. EFFECTIVE DATE OF PERFORMANCE APPRAISAL
a. Appraisals frozen on date of notice.
(1) Except for employees covered under 2-6a (3) below, an
employee's current official performance appraisal on the date of
issuance of a specific reduction-in-force notice is the appraisal
that determines his or her retention standing under paragraph 2-9
of this chapter. Performance appraisals that were due on or
before the date of issuance of notice but were not officially
approved and put on record until after the date of issuance of
notice do not affect determination of the employee's retention
standing.
/2/ Section 7117(a)(1) of the Statute provides as follows:
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 regulations, 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.
/3/ See provisions governing implementation of a RIF contained in 5
CFR Part 351 and FPM Chapter 351.
/4/ The pertinent parts of 5 USC 3502 provide as follows:
Sec. 3502. Order of retention
(a) The Office of Personnel Management shall prescribe
regulations for the release of competing employees in a reduction
in force which give due effect to--
(1) tenure of employment;
(2) military preference; subject to section 3501(a)(3) of this
title;
(3) length of service; and
(4) efficiency or performance ratings.
. . . .
(c) An employee who is entitled to retention preference and
whose performance has not been rated unacceptable under a
performance appraisal system implemented under chapter 43 of this
title is entitled to be retained in preference to other competing
employees.
/5/ Sections 351.204 and 351.205 of title 5 of the Code of Federal
Regulations states as follows:
Sec. 351.204 Responsibility of agency.
Each agency covered by this part is responsible for following
and applying the regulations in this part when the agency
determines that a reduction in force is necessary.
Sec. 351.205 Authority of OPM
The Office of Personnel Management may establish further
guidance and instructions for the planning, preparation, conduct,
and review of reductions in force through the Federal Personnel
Manual system. OPM may examine an agency's preparations for
reduction in force at any stage. When OPM finds that an agency's
preparations are contrary to the express provisions or to the
spirit and intent of these regulations or that they would result
in violation of employee rights or equities, OPM may require
appropriate corrective action.
/6/ Since the Authority concludes that the disputed proposal is
outside the duty to bargain under section 7116(a)(1), it is unnecessary
to consider the Agency's additional contention concerning the
nonnegotiability of the proposal.