[ v25 p1067 ]
25:1067(90)NG
The decision of the Authority follows:
25 FLRA No. 90
NATIONAL TREASURY EMPLOYEES UNION
Union
and
U.S. DEPARTMENT OF AGRICULTURE
FOOD AND NUTRITION SERVICE
MIDWEST REGION
Agency
Case No. 0-NG-1283
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 seven proposals.
II. Proposals 1 and 2
(Proposal 1)
Labor-Management Relations Committee Article -- Section 3
The Employer has determined that LMRC meetings are in the
public interest and has determined to pay travel and per diem
costs for up to eight (8) field representatives outside Chicago to
attend such meetings per year. (Only the underscored portion is
in dispute.)
(Proposal 2)
Arbitration Article -- Section 6
The arbitration hearing will be held in the Midwest Regional
Office in Chicago, Illinois in a room furnished by the Employer
during the regular day shift hours of the basic workweek. The
grievant(s), representative and witnesses employed by FNS with
personal knowledge of the facts at issue and found to be necessary
by the arbitrator, shall be allowed official time and travel and
per diem expenses relative to the proceedings when otherwise in
duty status. If the foregoing witnesses are not available, the
arbitrator shall have authority to delay the proceedings for a
reasonable period of time, if in the arbitrator's opinion such a
delay is warranted. The Parties shall exchange witness lists
three (3) workdays prior to the hearing. Any questions regarding
the necessity of a witness shall be raised at that time. (Only
the underscored portion is in dispute.)
A. Positions of the Parties
The Agency contends that the payment of travel and per diem expenses
is specifically provided for by law and that the disputed portions of
Proposals 1 and 2 are therefore nonnegotiable because they do not
concern a condition of employment of bargaining unit employees within
the meaning of section 7103(a)(14)(C) of the Statute. The Agency also
asserts that the decision of the Supreme Court in Bureau of Alcohol,
Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF) requires a
conclusion that travel and per diem payments for employees engaged in
union representational activities are not within the duty to bargain.
The Agency contends, therefore, that the Authority's decisions in
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub
nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
86-1198 (D.C. Cir., March 27, 1986) and American Federation of
Government Employees, AFL-CIO, National Council of Federal Grain
Inspection Locals and U.S. Department of Agriculture, Federal Grain
Inspection Service, 21 FLRA No. 21 (1986), petition for review filed sub
nom. U.S. Department of Agriculture, Federal Grain Inspection Service v.
FLRA, No. 86-1295 (D.C. Cir., May 21, 1986), are incorrect. The Agency
maintains that for authorization of payment for travel and per diem
expenses to be consistent with law and regulation it "can only be made
as a unilateral decision of management, based on a case-by-case review
of the circumstances of each proposed travel situation." Agency
Statement of Position at 4. In the Agency's view, the disputed language
in the instant proposals does not leave the Agency this discretion and
is therefore nonnegotiable.
The Union contends that the proposals here are similar to proposals
found negotiable by the Authority in Customs Service and related cases,
and the Agency's allegations should be rejected for the reasons stated
by the Authority in those cases. The Union further states that its
proposals are not inconsistent with law or regulation. More
particularly, it maintains that the Agency "is not limited in its
discretion by negotiating on the issue," that is, the Agency "retains
discretion on the exact amount of the payment and the type of travel and
accommodations used by the employee in each case." Union's Response to
Agency Statement of Position at 7.
B. Analysis and Conclusion
1. Proposals 1 and 2 Concern a Condition of Employment
In Customs Service, the Authority rejected the same argument as that
made here, namely, that a proposal relating to travel and per diem for
employee union representatives did not concern conditions of employment
of bargaining unit employees. For the reasons expressed in that
decision, we find that Proposals 1 and 2 concern conditions of
employment of unit employees. This finding with respect to Proposal 2
is applicable only to the extent that the proposal concerns bargaining
unit employees.
2. Proposals 1 and 2 are not Inconsistent with Federal and
Government-Wide Rules and Regulations
In BATF the Supreme Court held only that payment of travel and per
diem expenses for employees engaged in union representational activities
was not required by the Statute; it did not hold, as the Agency argues,
that agencies and unions were precluded by law from negotiating over the
payment of such expenses. In Customs Service we rejected the same
argument which the Agency makes here, namely, that payment of travel and
per diem expenses for union representatives is inconsistent with law and
regulation and therefore nonnegotiable. We found that under the Travel
Expense Act, 5 U.S.C. Sections 5701 et seq., and the Federal Travel
Regulations (FTRs), 41 CFR, Part 101-7, as interpreted the Comptroller
General, 46 Comp. Gen. 21 (1966), agencies have discretion to make
determinations that travel in the context of union activity is
sufficiently within the interest of the Government to constitute
official business. Following this determination, otherwise proper
travel and per diem expenses may be paid from agency funds. Contrary to
the Agency's argument, nothing in these authorities requires that this
necessary determination be made only by management and only on a
case-by-case basis. See also National Labor Relations Board Union and
National Labor Relations Board, 22 FLRA No. 55, slip op. at 4 n.2
(1986), petition for review filed sub nom. National Labor Relations
Board v. FLRA, No. 86-1504 (D.C. Cir., Sept. 8, 1986). The Agency does
not argue that travel attendant to Labor-management relations activities
and travel related to arbitration hearings could not meet this required
standard.
Moreover, the Authority has consistently held that in the absence of
a showing to the contrary, proposals providing for the payment of travel
and per diem expenses for union representatives would not prevent
management from making individual case-by-case determinations as to the
propriety under the FTRs of authorizing particular payments. National
Labor Relations Board. Compare National Association of Agricultural
Employees and U.S. Department of Agriculture, Animal and Plant Health
Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2) (Authority unable
to conclude based on the record in the case that the provision would
allow for compliance with law and regulation.) Based on the record in
this case and noting that the Union intends the disputed proposals to
comport with all travel regulations, we find nothing in Proposals 1 and
2 which would prevent the Agency from complying with the requirements of
law and regulations.
Based on the foregoing analysis, we find that Proposals 1 and 2
concern a condition of employment and are not inconsistent with law or
Government-wide regulation. Therefore, they are within the duty to
bargain.
III. Proposals 3 and 4
(Proposal 3)
Performance Appraisal Article -- Section 3.E.
Any disagreements concerning the elements and/or standards
shall be documented as noted in B. Employees may bring concerns
regarding the performance elements and/or standards to the
attention of the reviewing official. The reviewing official may
exercise authority to make appropriate changes after discussion
with the rating official. Official time for preparation and
presentation shall be provided to the employee. (Only the
underscored portion is in dispute.)
(Proposal 4)
Performance Appraisal Article -- Section 4.A.
Performance elements and standards must be consistent with the
duties and responsibilities contained in the employee's position
description, and applied in a fair, consistent, and reasonable
manner. (Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency contends that the disputed language in Proposal 3 is
nonnegotiable because it conflicts with the Agency's right to direct and
to assign work under section 7106(a)(2)(A) and (B) of the Statute.
Citing American Federation of Government Employees, Local 32 and Office
of Personnel Management, 16 FLRA 948 (1984) (Proposal 3), the Agency
states that the language does not provide a general nonquantitative
requirement by which the application of performance standards
established by an agency could be evaluated in a grievance, but makes
the elements and standards themselves subject to arbitral review. It
further claims that although the Union has indicated that it would use
the reviewing official selected by management, "it did not make clear in
the agreement language nor in their . . . statement of intent that the
content of standards and elements (would not be subject to arbitral
review)." Agency Statement of Position at 8.
The Union disagrees with the Agency's position that Proposal 3 would
render disputes on the content of performance elements and standards
grievable. It states that the proposal "does not subject the substance
of elements and standards to arbitral review," but rather is intended to
"(operate) solely as a mechanism for review within the Agency,"
consistent with 5 C.F.R. Section 430.205 and the Department's own
regulations. /1/ Union's Response to Agency's Statement of Position at
11. The Union therefore contends that the proposal is negotiable under
section 7106(b)(2) of the Statute.
Concerning Proposal 4, the Agency states that the disputed language
in Proposal 4 is nonnegotiable because it interferes with management's
rights under section 7106(a)(2)(A) and (B) of the Statute to assign and
direct employees, and to assign work. It argues that the disputed
language here is unlike Proposal 5 found negotiable by the Authority in
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 3 FLRA 783 (1980),
because the disputed language in this case refers to the content of
performance elements and standards and not to the application of those
standards. The Agency further claims that the disputed language would
interfere with its ability to temporarily assign (detail) employees to a
special project. In this regard, it states that a position description
is not required for a detail which does not exceed 120 days; however,
elements and standards must be developed since the employee's
performance during the detail must be rated. Noting such requirements,
it argues that the proposal would preclude the Agency from establishing
elements and standards for an employee who is detailed for less than 120
days or, if the Agency did establish elements and standards which were
not based on a position description, the contents of such standards
would be subject to arbitral review.
The Union asserts that the proposal does not interfere with
management's rights but is "merely a contractual affirmation of 5 U.S.C.
4301(b)(1)." Union's Response to Agency's Statement of Position at 15.
In its view this proposal is similar to Proposal 2 which the Authority
found negotiable in American Federation of Government Employees,
AFL-CIO, Local 2192 and Veterans Administration Regional Office, St.
Louis, Missouri, 9 FLRA 716 (1982) as well as to Proposal 1 in American
Federation of Government Employees, AFL-CIO, Local 2849 and Office of
Personnel Management, New York Regional Office, 7 FLRA 571 (1982)
because the proposal only covers work covered by the requirement for a
job description. Union's Response to Agency's Statement of Position at
15.
B. Analysis and Conclusion
1. Proposal 3
Proposal 3 provides a negotiable procedure for employees to bring
disputes concerning their performance elements and standards to a
reviewing official within the Agency. See National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769, 780 (1980), affirmed sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir.
1982). The Union has specifically stated that this proposal is not
intended to subject the substance of elements and standards to arbitral
review as the Agency alleges. Rather, the proposal is intended to
operate as a mechanism for review within the Agency. Thus, based on the
record, we find nothing in the proposal that would prevent the Agency
from establishing elements and standards pursuant to its statutory right
to direct and assign work. The disputed language in Proposal 3 only
provides a procedure by which employees may bring disputes concerning
their performance elements and standards to a reviewing official within
the Agency -- a procedure which allows for employee participation with
respect to their elements and standards. See also National Federation
of Federal Employees, Local 1430 and Department of the Navy, Northern
Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984)
(Proposal 1) (the Authority found negotiable a proposal that provided
for a joint planning communication process comprised of discussions
between an employee and his or her supervisor and/or a shop steward with
respect to elements and standards). We therefore find that the disputed
language in Proposal 3 constitutes a negotiable procedure under section
7106(b)(2) of the Statute and does not interfere with the Agency's right
to direct and assign employees under section 7106(a)(2)(A) and (B) of
the Statute.
2. Proposal 4
Proposal 4 is substantively identical to the proposal found
negotiable by the Authority in American Federation of Government
Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New
York Regional Office, 7 FLRA 571 (1982) (Proposal 1). In that case, the
proposal required performance standards and critical elements to be
consistent with the duties and responsibilities contained in a properly
classified position description. The Authority determined that although
the proposal required consistency between position descriptions on the
one hand, and critical elements identified and performance standards
established for a position on the other hand, it would not limit the
agency's choice of critical elements or performance standards. Rather,
the agency could always achieve the required consistency merely by
amending the position description. Thus, under that proposal, the right
of the agency to assign work and to direct employees through
establishing such elements and standards remained unaffected, subject to
the procedural requirement that the position description involved
accurately reflected the work assigned. Therefore, the Authority
concluded that the proposal was within the duty to bargain under section
7106(b)(2) of the Statute. For the reasons set forth in AFGE, Local
2849, we conclude that the disputed language in Proposal 4 does not
interfere with management's right to direct employees and assign work
under section 7106(a)(2)(A) and (B) of the Statute and therefore is
within the duty to bargain.
In so concluding, we reject the Agency's contention that the disputed
language, by requiring elements and standards to be consistent with the
duties of an employee's position description, would prevent the Agency
from temporarily assigning (detailing) an employee to a special project
for 120 days or less. The disputed language is not intended to cover
special details, but rather is intended to apply only to "work covered
by the requirements for a job description." Union's Response to Agency's
Statement of Position at 15. Based on the Union's explanation of its
proposal, which is consistent with a literal reading of the disputed
language, we find that the proposal is limited in its application and
thus does not interfere with the Agency's right to assign employees to
special details.
IV. Proposal 5
If there are no established KSA's, or if the employer desires
to change the KSA's then, prior to filling any vacancy covered by
this article, the employer will submit the proposed changes to the
union. The union will have ten (10) days from the date of receipt
to request negotiations.
A. Positions of the Parties
The Agency contends that Proposal 5 is nonnegotiable because it
directly interferes with management's rights to determine the personnel
by which agency operations shall be conducted and to make selections
under section 7106(a)(2)(B) and (C) of the Statute. The Union disputes
the Agency's contention and argues that the proposal constitutes a
negotiable procedure under section 7106(b)(2) of the Statute.
B. Analysis and Conclusion
KSA's are knowledges, skills, or abilities (KSA's) essential for
satisfactory performance on the job and represent an addition to the
basic standard for a position. Federal Personnel Manual (FPM), Chapter
335, section 1-2h. Proposal 5 would prohibit the Agency from filling a
vacant position in situations where the Agency either established new
KSA's or revised existing ones until the Union was notified and allowed
an opportunity to request negotiations over such changes.
In National Federation of Federal Employees, Local 1497 and
Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
Base, Colorado, 11 FLRA 565 at 568 (1983), the Authority stated:
(T)he right to select for appointment to a position under
section 7106(a)(2)(C) includes the discretion to determine, as an
integral aspect of the process of selection, the selective
factors, i.e., knowledges, skills, and abilities necessary to
successful performance of the work of a position . . . .
(U)nion participation in the decision-making process whereby
(an agency) determines the knowledges, skills, and abilities
necessary for successful performance of the work of a position
would directly interfere with management's rights under section
7106(a)(2)(C) of the Statute.
Thus, contrary to the Union's position, Proposal 5 does not set forth
a procedure. Instead, the proposal subjects the Agency's determination
of selective factors for a vacant position to negotiations. By so doing
Proposal 5 permits the Union to become involved in the decision-making
process whereby management determines the knowledges, skills, and
abilities necessary for successful performance of the work of such a
position. It therefore directly interferes with the Agency's right to
make selections for appointments to vacant positions under section
7106(a)(2)(C) of the Statute and is outside the duty to bargain. In
view of this conclusion, we find it unnecessary to address the Agency's
contention concerning section 7106(a)(2)(B) of the Statute.
V. Proposals 6 and 7
Grievance Procedure Article, Section 4(a)(1)(I) and (J)
This procedure shall be the exclusive procedure for resolving
all grievances, but does not cover:
(Proposal 6)
(I) The termination of a probationary employee, unless the
product of unlawful discrimination. (Only the underscored portion
is in dispute.)
(Proposal 7)
(J) Selections and selection procedures for nonbargaining unit
positions, unless the product of unlawful discrimination.
A. Positions of the Parties
The Agency contends that the disputed language in Proposal 6 is
nonnegotiable because it is contrary to governing law and regulation.
The Agency, citing Department of Justice, Immigration and Naturalization
Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), and 5 C.F.R. part 315,
subpart H, among other sources, argues that the termination of a
probationary employee is precluded by law and regulation from coverage
by a negotiated grievance procedure. According to the Union, Proposal 6
would allow it to "grieve (the) discriminatory" termination of
probationary employees. It states that its proposal is negotiable
pursuant to sections 7103(a)(9) and 7121 of the Statute; that the
court's decision in DOJ, INS is not relevant here; and that the cited
regulations do not address the issue raised by this proposal. The Union
also claims that "illegal discriminatory firings of probationary
employees" are not a protected right of an agency; and that section
7103(a)(9)(C) of the Statute grants the Union the right to grieve the
misapplication of any law affecting conditions of employment, including
the discriminatory firing of a probationary employee. Union Response to
Agency Statement of Position at 19 and 20.
Concerning Proposal 7, the Agency, citing American Federation of
Government Employees, AFL-CIO, Local 2 and Department of the Army,
Military District of Washington, 4 FLRA 450 (1980) contends that the
proposal is outside the duty to bargain because it does not involve
conditions of employment of unit employees but rather addresses
selections and selection procedures for nonbargaining unit positions.
The Union disagrees. It contends that Proposal 7, like Proposal 6, is
intended to address illegal discrimination in the workplace which
"explicitly affects bargaining unit employees." Union's Response to
Agency's Statement of Position at 21. In explaining its proposal, the
Union states that it is not seeking the right to grieve all selections
for any reason, only the right to grieve discriminatory selections or
selection procedures which have a direct impact on unit employees.
Union's Response to Agency's Statement of Position at 21. The Union
claims that its position that the proposal is negotiable is supported by
the Authority's decision in National Treasury Employees Union and
Internal Revenue Service, 3 FLRA 693 (1980).
B. Analysis and Conclusion
1. Proposal 6
Proposal 6 subjects the termination of probationary employees, where
discrimination is alleged, to review under the parties' negotiated
grievance procedure. In DOJ, INS the court held that coverage under a
negotiated grievance procedure of a grievance concerning the separation
of a probationary employee is precluded by the statutory and sources,
argues that the termination of a probationary employee is precluded by
law and regulation from coverage by a negotiated grievance procedure.
According to the Union, Proposal 6 would allow it to "grieve (the)
discriminatory" termination of probationary employees. It states that
its proposal is negotiable pursuant to sections 7103(a)(9) and 7121 of
the Statute; that the court's decision in DOJ, INS is not relevant
here; and that the cited regulations do not address the issue raised by
this proposal. The Union also claims that "illegal discriminatory
firings of probationary employees" are not a protected right of an
agency; and that section 7103(a)(9)(C) of the Statute grants the Union
the right to grieve the misapplication of any law affecting conditions
of employment, including the discriminatory firing of a probationary
employee. Union Response to Agency Statement of Position at 19 and 20.
Concerning Proposal 7, the Agency, citing American Federation of
Government Employees, AFL-CIO, Local 2 and Department of the Army,
Military District of Washington, 4 FLRA 450 (1980), contends that the
proposal is outside the duty to bargain because it does not involve
conditions of employment of unit employees but rather addresses
selections and selection procedures for nonbargaining unit positions.
The Union disagrees. It contends that Proposal 7, like Proposal 6, is
intended to address illegal discrimination in the workplace which
"explicitly affects bargaining unit employees." Union's Response to
Agency's Statement of Position at 21. In explaining its proposal, the
Union states that it is not seeking the right to grieve all selections
for any reason, only the right to grieve discriminatory selections or
selection procedures which have a direct impact on unit employees.
Union's Response to Agency's Statement of Position at 21. The Union
claims that its position that the proposal is negotiable is supported by
the Authority's decision in National Treasury Employees Union and
Internal Revenue Service, 3 FLRA 693 (1980).
B. Analysis and Conclusion
1. Proposal 6
Proposal 6 subjects the termination of probationary employees, where
discrimination is alleged, to review under the parties' negotiated
grievance procedure. In DOJ, INS the court held that coverage under a
negotiated grievance procedure of a grievance concerning the separation
of a probationary employee is precluded by the statutory and regulatory
scheme for a probationary period of employment set forth in 5 U.S.C.
Section 3321 and 5 CFR part 315, subpart H. The court also concluded
that whether the collective bargaining proposals of the union provided
probationary employees procedural protections different from those
provided tenured employees was not the issue. The court stated that:
To the contrary, the crucial issue is whether Congress intended
to allow any shackles whatever to be placed on agency decisions
concerning termination of probationary employees for unacceptable
work performance or conduct. We think that Congress affirmatively
preserved the agencies' right to discharge summarily a
probationary employee for unacceptable work performance.
Furthermore, we think Congress instructed OPM, not FLRA, to
implement the probationary program and to provide whatever
procedural protections were necessary for probationary employees.
709 F.2d at 729 (Emphasis in original; footnotes omitted).
The Authority has uniformly held on the basis of the rationale and
conclusion of the court in DOJ, INS that coverage by a negotiated
procedure of a grievance concerning the separation of a probationary
employee is precluded by governing law and regulation. See, for
example, Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, Local
1923, AFL-CIO, 15 FLRA 714 (1984). In that case, the Authority
specifically stated that "in enacting the Statute, Congress did not
intend that procedural protections for probationary employees be
established through collective bargaining under the Statute." (Emphasis
added.) Relying on the court's language set forth above, the Authority
further stated that "OPM is 'to provide whatever procedural protections
are necessary for probationary employees.'"
In view of the above, we find that Proposal 6 is nonnegotiable
because it is contrary to law and regulation. In reaching this
conclusion we reject the Union's contention that OPM regulations do not
address the issue in this case. OPM regulations set forth specific
procedural protection for probationary employees alleging certain kinds
of discrimination. See 5 C.F.R. Section 315.806 (1986); see also DOJ,
INS, n.10. We therefore conclude that Proposal 6 is outside the duty to
bargain.
2. Proposal 7
The Agency contends that the proposal is outside the duty to bargain
because it does not involve conditions of employment of unit employees
but rather addresses "selections and selection procedures for
nonbargaining unit positions." We agree. Thus, contrary to the Union's
contention that its proposal is only intended to address illegal
discrimination in the workplace which explicitly affects bargaining unit
employees, we find based on the express language of the proposal that it
would subject the selections and selection procedures for nonbargaining
unit positions to the parties' negotiated grievance procedure. The
Authority has previously held that proposals which pertain to the
filling of nonbargaining unit positions do not relate to conditions of
employment of bargaining unit employees, and hence are not within the
required scope of bargaining; rather they are negotiable solely at the
election of the agency. American Federation of Government Employees,
AFL-CIO, Local 2 and Department of the Army, Military District of
Washington, 4 FLRA 450 (1980). Since the Agency has elected not to
bargain on the proposal as it relates to the filling of nonbargaining
unit positions, the Agency's allegation that the proposal is not within
the duty to bargain is sustained.
Further, we find that the Union's reliance on National Treasury
Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) is
misplaced. Considering the plain language of Proposals II and III and
the Union's stated intent in that case, we find nothing in that decision
to indicate that the proposals were intended to apply to employees
outside the bargaining unit or that the Authority found that matters
pertaining to employees outside the bargaining unit were negotiable.
Rather, the Authority found that the Union could negotiate over
proposals which essentially restated two provisions of the Civil Service
Reform Act of 1978, pertaining to merit system principles and prohibited
personnel practices to the extent that they applied to unit employees.
VI. Order
The petition for review as it relates to Proposals 5, 6, and 7 is
dismissed. The Agency must upon request or as otherwise agreed to by
the parties bargain concerning Proposals 1, 2, 3, and 4. /2/
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) 5 C.F.R. Section 430.205 has been recodified at 5 C.F.R. Section
430.208. See 51 Fed. Reg. 8414 (1986).
(2) In finding these proposals to be within the duty to bargain, we
make no judgment as to their merits.