16:0948(127)NG - AFGE Local 32 and OPM -- 1984 FLRAdec NG

 16 FLRA No. 127
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 32
 Union
 
 and
 
 OFFICE OF PERSONNEL
 MANAGEMENT
 Agency
 
                                            Case No. O-NG-902
 
                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 three Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Each employee who is currently evaluated as outstanding on any
       performance element of the job which has a standard at this level
       shall have four years of service added to his or her creditable
       service for purposes of reduction-in-force.
 
 The proposal by its plain language would require that, for
 reduction-in-force retention purposes, credit for 4 additional years of
 service be given to an employee who had been rated "outstanding" in any
 performance element without regard to whether the employee's overall
 rating was "outstanding."
 
    Credit for additional service for reduction-in-force purposes is
 addressed by 5 CFR 351.504 (1984 Supp.).  This regulation has been
 promulgated by the Office of Personnel Management (OPM) and applies
 generally to civilian employees of the Federal Government.  /1/ It is a
 Government-wide rule or regulation within the meaning of section
 7117(a)(1) of the Statute.  National Treasury Employees Union, Chapter 6
 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 754
 (1980).
 
    As relevant herein 5 CFR 351.504(c) (1984 Supp.) provides:
 
          (c) An agency that has implemented a performance appraisal
       system meeting all the requirements of 5 U.S.C. 4302, and Part 430
       Subpart P (sic) of this title, is responsible for using employee
       performance appraisals to credit employees with additional service
       toward retention standing.  This additional service is added to
       each employee's creditable service under this part.  Each employee
       who has an "Outstanding" or highest appraisal under the agency's
       system, shall receive 4 additional years of service . . .
 
          Each agency is responsible for ensuring that these provisions
       are:
 
          (1) Consistent with Part 430 Subpart B of this title(.)
 
 Part 430, Subpart B, relates to the establishment of agency performance
 appraisal systems and was also promulgated by OPM.  In providing
 guidance to agencies with respect to the implementation of the
 provisions of Part 430, Subpart B, OPM has noted that insofar as
 performance appraisals are relevant to decisions made with respect to
 reduction-in-force, such decisions are based solely on the summary
 appraisal of an individual employee's performance.  /2/ Thus, the
 provision in 5 CFR 351.504(c) for crediting an employee who has received
 an outstanding appraisal with 4 years of additional service, interpreted
 consistent with the provisions of Part 430, Subpart B, applies to
 employees who have received an outstanding summary rating.  In view of
 the fact that the proposal would require crediting of 4 years of
 additional service without regard to whether an employee, in fact, has a
 summary rating of outstanding, it conflicts with that Government-wide
 rule or regulation and, therefore, is not within the duty to bargain.
 /3/ IRS, New Orleans District, supra.
 
                             Union Proposal 2
 
          An employee who is satisfactory in all critical elements and
       who exceeds the standard for satisfactory in any element (thereby
       performing at better than the minimum for retention), shall be
       deemed to be performing at an acceptable level of competence for
       within grade increase purposes.
 
    Union Proposal 2 would establish the quality of job performance which
 would evidence an "acceptable level of competence" for purposes of
 granting within-grade salary increases.  It is, thus, materially to the
 same effect as Union Proposal 6 in American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 14 FLRA No. 2 (1984), petition for enforcement filed,
 FLRA v. Office of Personnel Management, No. 84-1325 (D.C. Cir. July 18,
 1984).  In OPM, the Authority relying upon reasoning set forth in
 American Federation of State, County and Municipal Employees, AFL-CIO,
 Council 26 and U.S. Department of Justice, 13 FLRA No. 96 (1984) found
 that such a proposal interfered with the agency's rights under section
 7106(a)(2) of the Statute to direct employees and assign work.  In so
 finding the Authority noted that an essential aspect of management's
 exercise of these rights was to establish performance requirements for
 each overall level of performance.  Because Union Proposal 2 herein
 would require negotiation over the quality of employee performance
 necessary to attain a positive acceptable level of competence rating and
 by extension the performance requirements for a "fully successful"
 overall performance rating, it is, for the reasons set forth in OPM and
 Department of Justice, not within the duty to bargain.  /4/
 
                             Union Proposal 3
 
          Performance standards as well as their application, must be
       fair and equitable.  (Only the underlined portion is in dispute.)
 
    The authority has consistently found proposals which substantively
 restrict management in its establishment of performance standards to be
 outside the duty to bargain as interfering with management's rights to
 assign work and direct employees under section 7106(a)(2)(A) and (B) of
 the Statute.  National Treasury Employees Union and Department of the
 Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom.
 NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982);  American Federation of
 Government Employees, AFL-CIO, Local 1968 and Department of
 Transportation, Saint Lawrence Seaway Development Corporation, Massena,
 New York, 5 FLRA 70 (1981), (Union Proposals 1 and 2), aff'd sub nom.
 American Federation of Government Employees, Local 1968 v. FLRA, 691
 F.2d 565 (D.C. Cir. 1982), cert. denied 103 S.Ct. 2085 (1983).  The
 Authority has also found that a proposal which would have as its sole
 effect the subjecting of management's determination concerning the
 content of performance standards to the grievance procedure and arbitral
 review similarly constituted a substantive interference with
 management's rights.  Saint Lawrence Seaway Development Corporation, 5
 FLRA 70, (Union Proposal 4).  However, in American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, Washington, D.C. 3 FLRA 784 (1980) (Union Proposal 5) the
 Authority specifically found that a proposed standard of fairness and
 equity concerned, in the facts of that case, only the application of
 performance standards to employees.  Thus in that case, the Authority
 determined such a standard was a negotiable arrangement under section
 7106(b)(3) whereby the application of performance standards established
 by management could subsequently be evaluated in a grievance by an
 employee who alleged to be adversely affected by the application of
 management's standards to that individual.  In finding that proposal to
 be within the duty to bargain, the Authority specifically noted that
 such an arrangement did not affect management's discretion to determine
 the content of performance standards nor authorize an arbitrator to
 substitute his or her judgment for that of management as to the content
 of the standards.
 
    Union Proposal 3, herein, unlike Union Proposal 5 in American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, Washington, D.C., 3 FLRA 784 (1980), is not
 limited to establishing a general nonquantitative requirement by which
 the application of performance standards established by agency
 management could subsequently be evaluated in a grievance.  It is also
 specifically directed, by its language and the Union's stated intent, to
 restricting the content of the performance standards.  As such it would,
 as a practical matter, provide the basis for arbitral review of the
 content of performance standards and would permit arbitrators to
 substitute their judgments as to the proper content of performance
 standards for that of the Agency.  Thus Union Proposal 3 is materially
 to the same effect as Union Proposal 4 in Saint Lawrence Seaway
 Development Corporation, 5 FLRA 70.  For the reasons expressed in Saint
 Lawrence Seaway Development Corporation, the Authority finds that Union
 Proposal 3 herein is likewise not within the duty to bargain.
 
    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., December 18, 1984
                                       /s/ HENRY B. FRAZIER III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       /s/ RONALD W. HAUGHTON
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 CFR 351.202 (1984 Supp.).
 
 
    /2/ FPM Chap. 430, subchap. 1-4d.
 
 
    /3/ In view of this disposition it is unnecessary to address the
 Agency's further contention as to the negotiability of this proposal.
 
 
    /4/ In view of this determination, it is unnecessary to address the
 Agency's other contention as to the negotiability of this proposal.