[ v21 p1039 ]
21:1039(121)NG
The decision of the Authority follows:
21 FLRA No. 121
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 2830, AFL-CIO
Union
and
DEPARTMENT OF JUSTICE
Agency
Case No. 0-NG-943
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 the two underscored sentences of the following Union
proposal.
Repromotions. Special consideration for repromotion is
extended to an employee who has been demoted in the unit without
personal cause (that is, without misconduct or performance failure
and not at the employee's request). Such consideration is
extended for three years following the effective date of the
demotion. This employee shall be selected for the first available
vacancy for which he or she qualifies and which the Employer
determines to fill. Such demoted employees who have been placed
in career ladder positions shall be promoted therein annually
provided their overall performance remains satisfactory until he
or she has regained his or her original grade level.
Based on the positions of the parties in this case each disputed
sentence is treated separately in this decision.
II. First Disputed Sentence
This employee shall be selected for the first available vacancy
for which he or she qualifies and which the Employer determines to
fill.
A. Positions of the Parties
The Agency contends that:
1. By requiring the automatic selection of a repromotion
eligible this sentence interferes with management's right to make
selections from any appropriate source under section 7106(a)(2)(C)
of the Statue and a Government-wide regulation, namely,
Requirement 4, subchapter 1-4, chapter 335 of the Federal
Personnel Manual (FPM);
2. because it is not limited to filling positions at or below
the level from which the employee was demoted and would apply to
employees only minimally qualified it is an inappropriate
arrangement and inconsistent with the mandate of an effective and
efficient government under section 7101(b) of the Statute;
3. because it would apply to employees voluntarily demoted
dection 7106(b)(3) is inapplicable;
4. because it would apply to employees demoted for cause it
would prevent management from acting at all with regard to
effecting performance based or conduct based adverse actions;
and,
5. it does not concern conditions of employement of bargaining
unit employees to the extent it applies to individuals separated
from employment or to nonbargaining unit employees or positions.
According to the Union this sentence was intended to be limited to
employees involuntarily demoted without personal cause and did not
contemplate employees being selected for managerial positions. Further,
in support of its position that the disputed sentence is negotiable as
an appropriate arrangement under section 7106(b)(3), the Union cites the
decision of the U.S. Court of Appeals for the District of Columbia
Circuit in American Federation of Government Employees, Local 2782 v.
Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983),
reversing and remanding American Federation of Government Employees,
AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
Washington, D.C., 7 FLRA 91 (1981).
B. Analysis
1. Meaning of First Disputed Sentence
The portion of the Union's proposal which is not in dispute expressly
limits application of the first disputed sentence to employees
involuntarily demoted without personal cause to positions in the unit.
Thus, the Agency's arguments to the contrary are without merit and
cannot be sustained. In addition, the Agency does not support its claim
that the sentence would require the filling of positions at grade levels
above the demoted employee's former grade or require the filling of
nonbargaining unit positions.
2. Appropriate arrangements with the meaning of section
7106(b)(3) of the Statute
The first disputed sentence expressly limits the selection of demoted
employees for vacancies which the Agency decides to fill to demoted
employees who are "qualified." The term "qualified" is not defined in
the record. We therefore adopt for the purpose of this decision the
meaning accorded to it in the FPM: Meeting the minimum qualifications
requirements established by the Office of Personnel Management (OPM) for
the particular position as supplemented by any "selective factors" such
as the knowledge, skills or abilities essential to the successful
completion of the job which are added by the agency involved. See FPM
chapter 335, section 1-2h. As a result, the first disputed sentence
would preserve management's discretion to determine the qualifications
requirements of the position involved and the discretion to determine
whether the repromotion eligible candidates under consideration are
qualified. Further, the first disputed sentence would not require
management to fill a vacant position. Hence, the Authority finds that
the first disputed sentence in this case has the same effect as the
proposal in the Authority's Decision and Order on Remand in AFGE, Local
2782 and Bureau of the Census, 14 FLRA 801 (1984). In that case the
Authority concluded that the proposal constituted a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute
notwithstanding its limitation on management's discretion to determine
the relative qualifications of repromotion eligibles. /1/ Accordingly,
the Authority finds, for the reasons stated more fully in that decision,
that the first disputed sentence here does not excessively interfere
with management's rights and, therefore, constitutes a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute.
3. Interference with Government-wide Rule or Regulation
The Authority also concluded in its Decision and Order on Remand in
AFGE, Local 2782 and Bureau of the Census that under section 7106(b)(3),
it nevertheless was outside the duty to bargain under section 7117(a)(1)
of the Statute because it was inconsistent with a Government-wide
regulation, that is, Requirement 4 of subchapter 1-4, chapter 335 of the
FPM, which would permit agencies to fill positions by making selections
from any appropriate source. The first disputed sentence at issue in
this case would require the Agency to select for vacancies which it has
decided to fill only those employees who are affected by
reduction-in-force actions involving demotion. It would, therefore,
have the same effect as the proposal in AFGE, Local 2782 and Bureau of
the Census, that is, it would prevent the Agency from making selections
from any appropriate source. Thus, for the reasons stated more fully in
our Decision and Order on Remand in AFGE, Local 2782 and Bureau of the
Census, the first disputed sentence in this case also violates
Requirement 4 of subchapter 1-4, chapter 335 of the FPM, a
Government-wide regulation, and is outside the duty to bargain.
C. Conclusion
We find that the first disputed sentence would not excessively
interfere with management's rights and, thus, that it constitutes an
appropriate arrangement for employees adversely affected by the exercise
of such rights, within the meaning of section 7106(b)(3) of the Statute.
However, we also hold, based upon the analysis provided in our Decision
and Order on Remand in AFGE, Local 2782 and Bureau of the Census, 14
FLRA 801 (1984), affirmed in the Authority's Decision and Order on
Motion for Reconsideration (July 11, 1985), petition for review filed,
No. 85-1562 (D.C. Cir. September 6, 1985), that the sentence conflicts
with FPM, chapter 335, subchapter 1-4, and, therefore, is nonnegotiable
under section 7117(a)(1) of the Statute.
III. Second Disputed Sentence
Such demoted employees who have been placed in career ladder
positions shall be promoted annually provided their overall
performance remains satisfactory until he or she has regained his
or her original grade level.
A. Positions of the Parties
The Agency argues that:
1. By making career ladder promotions automatic based only on
an overall satisfactory performance rating it interferes with
management's right to make selections for promotions under section
7106(a)(2)(C) of the Statute, it is inconsistent with
Government-wide regulations, namely, Requirement 4, subchapter
1-4, chapter 335 of the FPM and subchapter 1-5, chapter 335 of the
FPM, it is inconsistent with classification requirements
established in law and the FPM, and it is inconsistent with 5
U.S.C. Sections 4303 and 7512;
2. because it would in certain circumstances require
promotions above the journeyman levels of the career ladder it
interferes with management's rights to assign work under section
7106(a)(2)(B), to make selections for promotions under section
7106(a)(2)(C) and to determine numbers, types and grades of
employees assigned under section 7106(b)(1); and,
3. it does not concern working conditions of bargaining unit
employees to the extent it applies to nonbargaining unit employees
and positions.
According to the Union the proposal is limited to employees
involuntarily demoted without personal cause and did not contemplate
employees being selected for managerial positions. The Union further
argues that it does not intend the proposal to require employees to be
promoted to positions at a level above the one from which they had been
demoted or to positions outside the bargaining unit.
In support of its position, the Union cites American Federation of
Government Employees, Local 2782, 702 F.2d 1183 (D.C. Cir. 1983).
B. Analysis
It is generally understood that when a Federal employee is placed in
a career ladder position that employee is placed at a grade level less
than the full performance or journeyman grade level with the express
intention to prepare that employee for advancement by noncompetitive
promotions through intermediary grade levels to the full performance
grade level. See FPM chapter 335, subchapter 1-5. Although not
discussed by the parties, such noncompetitive career ladder promotions
are governed by 5 C.F.R. Section 335.104 (1985).
This regulation provides as follows:
Section 335.104 Eligibility for career ladder promotion.
(a) No employee shall receive a career ladder promotion unless
his or her most recent summary rating under Part 430 of this
chapter is "Fully Successful" or higher. In addition, no employee
may receive a career ladder promotion who has a rating below
"Fully Successful" on a critical element that is also critical to
performance at the next higher grade of the career ladder.
The second disputed sentence, however, expressly requires a career
ladder promotion solely on the basis of an overall satisfactory
performance appraisal without regard to whether the employee was
appraised fully successful on critical elements that are also critical
to performance at the next higher grade of the career ladder. This
requirement is inconsistent with 5 CFR Section 335.104, which is a
Government-wide regulation 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, 755 (1980).
In view of our decision that this sentence violates a Government-wide
regulation we find it unnecessary to address the Agency's additional
contentions that the proposal would improperly require noncompetitive
promotions in various hypothetical circumstances.
C. Conclusion
We hold that the second disputed sentence conflicts with 5 CFR
Section 353.104 and, therefore, is nonnegotiable under section
7117(a)(1) of the Statute. In view of this holding, section 7106(b)(3)
is inapplicable. /2/
IV. Order
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 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Subsequent to the filings in this case the Authority issued
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA No. 4 (1986), in which we specifically
adopted the rationale of the District of Columbia Circuit in AFGE, Local
2782. Thus, as we stated in the Kansas Army National Guard decision, we
will henceforth determine whether a proposal constitutes a negotiable
"appropriate arrangement" under section 7106(b)(3) of the Statute by
determining whether the proposal excessively interferes with the
exercise of management's rights.
(2) See American Federation of Government Employees, Local 1546 and
Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA
1016, 1019 (1985), petition for review filed sub nom. American
Federation of Government Employees, AFL-CIO, Local 1546 v. FLRA, No.
85-1689 (D.C. Cir. Oct. 21, 1985) wherein the Authority held that
section 7106(b)(2) and (3) are not applicable where a determination is
made that a proposal conflicts with a Government-wide rule or
regulation.