[ v26 p452 ]
26:0452(55)NG
The decision of the Authority follows:
26 FLRA No. 55
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 32, AFL-CIO
Union
and
OFFICE OF PERSONNEL MANAGEMENT
Agency
Case No. 0-NG-963
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 four proposals. /1/
II. Proposal 1
As part of the annual performance evaluation process,
supervisors will develop an individual development plan for each
unit employee supervised. The plan will address training needs in
accordance with the following priority: (a) remedial training
activities; (b) training activities designed to enable unit
employees they supervise to perform better in their current
position or to learn the skills they will need in a subsequent
position in the same career ladder. Entries in an individual
development plan do constitute a commitment by the agency to
promote or train.
A. Positions of the Parties
The Agency contends that Proposal 1 is nonnegotiable because it
interferes with management's rights to assign work, to make selections
for positions from among properly ranked and certified candidates or
from any other appropriate source, and to fill positions.
In the Union's view, the Agency's objections relate to a lack of
confidence in the ability of its supervisors to formulate development
plans that comply with regulations, management's needs, and training
budgets. Such concerns, the Union asserts, do not make the proposal
nonnegotiable, particularly when the proposal does not affect
management's authority to formulate development plans.
B. Analysis
The dispute here centers on the last sentence of Proposal 1. That
sentence uses the same wording as Proposal 2, found to be nonnegotiable
in American Federation of Government Employees, Local 32 and Office of
Personnel Management, 16 FLRA 40 (1984). The proposal in Office of
Personnel Management concerned individual development plans like the one
described in Proposal 1 here. The Authority found that the disputed
language in the Office of Personnel Management proposal required the
agency to provide to each employee the training specified in his or her
individual development plan. Consequently, it was held that the
language of the proposal interfered with management's right to assign
work. Nothing in the record of this case leads us to reach a different
result.
C. Conclusion
Based on the reasoning and case cited in the prior Office of
Personnel Management decision, Proposal 1 is inconsistent with the right
to assign work under section 7106(a)(2)(B) of the Statute and,
therefore, is outside the duty to bargain. /2/
III. Proposal 2
Employees will not be penalized under performance standards for
situations outside their control resulting from the destruction of
their work materials.
A. Positions of the Parties
The Agency argues that Proposal 2 is to the same effect as Proposal
1, held nonnegotiable in American Federation of Government Employees,
AFL-CIO, Local 1923 and Department of Health and Human Services, Social
Security Administration, 12 FLRA 17 (1983). Both Proposal 2 and the
proposal in the cited case, it asserts, limit management's right to
measure and appraise performance. Regarding the circumstances addressed
by the proposal in this case, the Agency contends that "the
'destruction' of an employee's work materials would not necessarily
prevent him from obtaining the same materials from another source; yet
the proposal would preclude management from taking any performance-based
action when such a 'destruction' of work materials occurred." /3/
The Union asserts that the purpose of Proposal 2 is to ensure that
the Agency complies with the requirement in 5 U.S.C. Section 4302 that
employees' performance evaluations be "accurate."
B. Analysis
The proposal in Social Security Administration, cited by the Agency,
barred charging time lost as a result of the unavailability of
telephones or other facilities against employees' productive time for
performance evaluation or disciplinary purposes. The Authority noted
that the proposal, in effect, would permit employees to fail or refuse
with impunity to make contact with their clientele by other available
means. Consequently, the proposal was held to be inconsistent with
management's rights under section 7106(a)(2)(A) and (B) of the Statute
to direct employees and to assign work.
In like manner, Proposal 2 in this case absolutely insulates
employees from adverse evaluations in the described circumstances. As
the Agency points out without contravention, at times there are
alternative sources of information available to employees when their
primary sources are "destroyed." Yet, under this proposal, an employee's
performance evaluation could not be affected by his or her failure to
turn promptly to any alternative source in furtherance of the
assignment. Viewed in this light, the analogy between the proposal here
and the one in Social Security Administration, as posited by the Agency,
is persuasive and we find the effect on management's rights to be the
same.
Also implicit in Proposal 2 are the potential consequences noted
regarding Proposals 1 through 3 in American Federation of Government
Employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA
93 (1985). That is, under the proposal here, any alternative assignment
made because of the destruction of work materials arguably could be
construed as a penalty. In such circumstances, the proposal would
prevent the Agency from considering an employee's substandard
performance of the alternative assignment in evaluating the employee's
overall performance.
Although the Union argues that its proposal is intended to promote
accuracy in performance evaluations, we find that argument unpersuasive.
The proposal in fact militates against accuracy by barring adverse
assessments in the circumstances described, while not precluding
favorable evaluations where warranted. Thus, the accuracy of
performance ratings would be compromised because they could not reflect
less than satisfactory performance in the situation covered by the
proposal.
C. Conclusion
For the reasons stated in Social Security Administration and Office
of Personnel Management, Proposal 2 is inconsistent with the Agency's
rights, under section 7106(a)(2)(A) and (B) of the Statute, to direct
employees and to assign work and is, consequently, outside the duty to
bargain.
IV. Proposal 3
A career ladder exists when there is enough work at a higher grade
so that all eligible employees could be promoted. The highest
grade for which there is work available for all employees is the
journeyman level. As a protection against management unfairness,
the journeyman level of each position at the time of its filling
is noted on the vacancy announcement and on the position
description. However, the subsequent coming into existence of
conditions for a higher journeyman level automatically raises the
level. The first party noticing the change will notify the other
party and the employees immediately. (The underscored portion of
the proposal is in dispute.)
A. Positions of the Parties
The Agency contends that the underscored language of Proposal 3 is
inconsistent with its right under section 7106(a)(1) of the Statute to
determine its organization. The proposal, in the Agency's view, also
violates its right, under section 7106(a)(2)(C), when filling positions
to make selections for appointments from among properly ranked and
certified candidates for promotion or from any other appropriate source.
The Agency also asserts that the proposal infringes on its right under
7106(b)(1) to determine the appropriate numbers, types and grades of
employees or positions assigned to any organizational subdivision.
Additionally the Agency characterizes the proposal as not concerning
conditions of employment because section 7103(a)(14)(B) expressly
excludes matters concerning the classification of positions from the
definition of "conditions of employment."
The Union asserts that the sole purpose of its proposal is to
establish a procedure for modifying records of journeyman levels to
reflect the "actualities." Because the proposal requires only the
recordation of management decisions and actions, the Union contends that
there is no interference with the Agency's statutory rights. The Union
also denies that its proposal relates to the classification of
positions.
B. Analysis
In agreement with the Agency, we find that Proposal 3 seeks to
negotiate over the grade of structure within the bargaining unit. In
effect, the proposal would obligate the Agency to raise the journeyman
grade within the career ladder element of the bargaining unit if
sufficient higher grade work is available to support promotion of all
career ladder employees to the higher grade. The proposal therefore
intrudes on the Agency's discretion to determine its grade structure by
mandating that the grades of journeyman level be elevated when the grade
level of work which might be assigned to employees in that group is of a
higher grade than the existing journeyman level. In this respect,
Proposal 3 is to the same effect as Proposal 4 in American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, 17 FLRA 790 (1985). The proposal in that case provided that
"(w)herever feasible, jobs will be redesigned in order to create career
paths allowing employees now in deadend jobs to be promoted
non-competively." That proposal was held to be inconsistent with
management's right to determine its organization under section
7106(a)(1) of the Statute because it would require the Agency to change
its "current organizational grade level structure(.)" Id. at 793.
C. Conclusion
Because Proposal 3 would require the Agency in the circumstances
described, to structure its organization so that certain employees could
be promoted, based on Office of Personnel Management, 17 FLRA 790, it is
inconsistent with a right reserved to management by section 7106(a)(1).
The proposal is therefore outside the duty to bargain.
V. Proposal 4
Each employee in a career ladder will be promoted upon meeting the
eligibility requirements for the higher grade, including having
the ability to perform at the higher level, unless because of
workload changes there is no longer work available for all
eligible members of the career ladder group to be promoted
simultaneously. In the latter case, competitive procedures
limited to those employees will be used. (The underlined sentence
is in dispute.)
A. Positions of the Parties
The Agency contends that the underscored language of the proposal
interferes with its right, under section 7106(a)(2)(C) of the Statute,
to make selections for appointments from among properly ranked and
certified candidates or from any other appropriate source. In the
Agency's view, the proposal also conflicts with the definition of career
ladder promotion, a promotion effected without current competition, set
out in Federal Personnel Manual (FPM) Chapter 335, subchapter
1-5c(1)(a).
The Union characterizes its proposal as an appropriate arrangement,
within the meaning of section 7106(b)(3) of the Statute, for employees
adversely affected by management's determination to reduce the amount of
higher level work to a point lower than can justify the existing
journeyman level.
B. Analysis
The Office of Personnel Management (OPM) has recognized the problem
addressed by Proposal 4. However, in its regulations, the method of
dealing with the problem is different from the one proposed here. 5 CFR
Section 335.104(b) (1986) requires:
Employees with the highest summary ratings must be given first
consideration for career ladder promotions when it is not possible
to promote all eligible employees in the same career ladder at the
same time.
The cited regulation requires application of a single criterion in
selecting the career ladder employees to be promoted when all eligibles
cannot be promoted at the same time. The proposal, however, by
referring to "competitive procedures," invokes the full range of
criteria and procedures -- except, of course, for inclusion of
candidates from other sources -- inherent in an authorized merit
promotion plan. Because the proposal requires use of more than the
single prescribed criterion, it conflicts with the applicable
regulation.
The question to consider next, therefore, is whether 5 CFR Section
335.104(b) is a Government-wide regulation under section 7117(a)(1) of
the Statute and consequently a bar to negotiation on the proposal. 5
CFR Section 335.103 requires agencies to adopt and administer a program
"designed to insure a systematic means of a selection for promotion
according to merit. The program shall conform with the standards and
instructions of OPM. . . . " The standards and instructions for agency
merit promotion plans appear in, among other places, part 335 of the
Code of Federal Regulations. Part 335 is applicable to Federal civilian
employees in the competitive service within the Executive branch of
Government. Hence, 5 CFR Section 335.104(b) is generally applicable to
the Federal civilian work force so as to be "Government-wide" under
section 7117(a)(1).
C. Conclusion
Proposal 4 conflicts with the requirements of 5 CFR Section
335.104(b), a Government-wide regulation under section 7117(a)(1) of the
Statute. Consequently the proposal is outside the duty to bargain.
VI. Order
The petition for review is dismissed.
Issued, Washington, D.C., March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Petition for Review in this case initially sought Authority
determinations on the negotiability of nine proposals. In its Statement
of Position, the Agency withdrew its allegation of nonnegotiability as
to one proposal. In its Reply Brief, the Union explicitly withdrew its
petition with respect to three proposals. In addition it appears from
the record that the Union withdrew its petition regarding one other
proposal, entitled "Details, Training and Facility Articles, Details,
Section 3A." In its Reply Brief, the Union neither discussed the
proposal nor, in its conclusion to that document, did it request that
the Agency be required to bargain over the proposal. Hence, we only
examine the four proposals evidently still in dispute.
(2) In view of the dispositive nature of the cited precedent, we find
it unnecessary to address the additional grounds asserted by the Agency
for the proposal's nonnegotiability.
(3) Agency Statement of Position at 5.