[ v14 p6 ]
14:0006(2)NG
The decision of the Authority follows:
14 FLRA No. 2
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32
Union
and
OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C.
Agency
Case No. O-NG-255
DECISION AND ORDER ON NEGOTIABILITY ISSUES
This case comes before the Authority pursuant to section
7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute
(the Statute). /1/ The issue presented is the negotiability of eight
Union proposals. In deciding that certain of those proposals or
portions thereof are within the duty to bargain, the Authority makes no
judgment as to their merits.
Union Proposal 1
An employee who is involuntarily detailed will retain whatever
flexible work schedule he or she has in his or her position of
record.
Question Before the Authority
The question presented is whether the Union's proposal is
inconsistent with section 7106(a)(2) of the Statute and, therefore, not
within the Agency's duty to bargain.
Opinion
Conclusion and Order: The Union's proposal is not inconsistent with
section 7106(a)(2) of the Statute. /2/ Accordingly, pursuant to section
2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
Agency shall upon request (or as otherwise agreed to by the parties)
bargain concerning the proposal.
Reasons: The Agency contends that the proposal would prevent
management from assigning an employee to a detail if such employee could
not retain the flexible work schedule of his or her position of record.
On its face, however, the proposal, which only would apply to "an
employee who is involuntarily detailed," could not bar management's
making the assignment. Additionally, neither the language of the
proposal nor the record as a whole indicates that the Union intends its
proposal either to prevent management's assigning an employee to any
tour of duty within the flexible work schedule when such assignment is
necessary to accomplish the Agency's mission /3/ or to give employees
the right to refuse to appear for work when ordered to do so. /4/
Accordingly, the Agency's claim that this proposal would be inconsistent
with the Agency's right to detail employees under section 7106(a)(2) is
not sustained.
Union Proposal 2
Management shall provide adequate security to all employees.
Question Before the Authority
The question presented is whether the Union's proposal is
inconsistent with section 7106(a)(1) of the Statute because, as alleged
by the Agency, it would directly interfere with the Agency's internal
security practices.
Opinion
Conclusion and Order: The Union's proposal is not inconsistent with
section 7106(a)(1) of the Statute. /5/ Accordingly, pursuant to section
2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
Agency shall upon request (or as otherwise agreed to by the parties)
bargain concerning the proposal.
Reasons: As used in the Statute, the term "internal security
practices" includes those policies and actions which are part of the
Agency's plan to secure or safeguard its physical property against
internal or external risks, to prevent improper or unauthorized
disclosure of information, or to prevent the disruption of the Agency's
activities or operations. See American Federation of Government
Employees, AFL-CIO, National Immigration and Naturalization Service
Council and U.S. Department of Justice, Immigration and Naturalization
Service, 8 FLRA No. 75(1982) at 16, reversed as to other matters sub
nom. Department of Justice v. FLRA, No. 82-1622 (D.C. Cir. June 10,
1983).
On its face, this proposal does not concern matters related to the
internal security practices of the Agency but, instead, to the health
and safety of employees. Even if "internal security" were construed to
include the personal security of employees, the proposal would prescribe
only the general standard of "adequate" personal security. It would
leave to the Agency's sole discretion decisions as to implementation of
the contractual standard. It is concluded that the proposal is not
inconsistent with the Agency's right to determine its internal security
practices and is within the duty to bargain.
Union Proposal 3
Employees in other situations where non-competitive promotions
are possible will be promoted upon the employee's certifying that
he or she has met all the requirements for promotion.
Question Before the Authority
The question presented is whether the Union's proposal is outside the
duty to bargain because it is inconsistent with section 7106(a)(2)(C) of
the Statute, as alleged by the Agency.
Opinion
Conclusion and Order: The Union's proposal is inconsistent with
section 7106(a)(2)(C) of the Statute. /6/ Accordingly, pursuant to
section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED
that the petition for review of the Union's proposal be, and it hereby
is, dismissed.
Reasons: The Union's intended meaning of its proposal is as follows:
The union proposal applies only to non-competitive promotions
which can, as is the case with career ladder promotions, be tied
to the employee meeting specific requirements for promotions. In
those cases, if the proposal is adopted, the crucial management
decision comes when the employee is assigned to a position
providing for promotion upon meeting certain criteria; subsequent
promotion, upon those criteria being met, becomes merely a
ministerial act. /7/
This explanation is contrary to the explicit language of the proposal
which is not limited to career-ladder circumstances /8/ but, instead,
would mandate noncompetitive promotions "where (such) promotions are
possible." Thus, on its face, the proposal would not be limited to
situations involving a "ministerial act" as claimed by the Union. See
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 8 FLRA No. 97(1982)
(Proposal III). Rather, the proposal necessarily would extend to
situations involving the Agency's exercising discretion pursuant to its
management right to make selections to fill positions from any
appropriate source under section 7106(a)(2)(C) of the Statute.
Accordingly, the proposal is inconsistent with section 7106(a)(2)(C) and
is outside the duty to bargain.
Union Proposal 4
Statements of critical elements and the standards for
satisfactory performance of the critical elements will be
developed by the parties and provided employees within 30 days of
the effective date of this contract.
Question Before the Authority
The question presented is whether, as alleged by the Agency, the
Union's proposal is outside the duty to bargain because it is
inconsistent with section 7106(a)(2)(A) and (B) of the Statute.
Opinion
Conclusion and Order: The Union's proposal is inconsistent with
section 7106(a)(2)(A) and (B) of the Statute. Accordingly, pursuant to
section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED
that the petition for review of the disputed proposal be, and it hereby
is, dismissed.
Reasons: The record demonstrates the proposal would require
collective bargaining over the identification of critical elements and
the establishment of performance standards for, inter alia, job
retention for positions and employees in the bargaining unit.
Consequently, the proposal is substantively identical in effect to the
proposal which was before the Authority in National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769(1980), affirmed sub nom. National Treasury Employees Union v.
Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). In
that decision, the Authority held that a proposal which would have
established a particular critical element and related performance
standard for job retention was inconsistent with management's rights to
direct employees and to assign work under section 7106(a)(2)(A) and (B)
of the Statute and, therefore, was outside the duty to bargain.
Accordingly, for the reasons fully set forth in Bureau of the Public
Debt, the proposal here also is outside the duty to bargain.
Union Proposal 5
Performance in all elements will be rated only as
unsatisfactory or highly satisfactory.
Question Before the Authority
The question presented is whether the Union's proposal is
inconsistent with the rights to direct employees in the agency or to
assign work under, respectively, section 7106(a)(2)(A) and (B) of the
Statute.
Opinion
Conclusion and Order: The Union's proposal is inconsistent with
section 7106(a)(2)(A) and (B) 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.
Reasons: The Union's proposal would establish the number of rating
levels for appraising an employee's performance in all job elements. As
such, it is substantively identical in effect to a portion of the
proposal which was held nonnegotiable by the Authority in American
Federation of State, County and Municipal Employees, AFL-CIO, Council 26
and U.S. Department of Justice, 13 FLRA No. 96(1984). In that case, the
Authority ruled that a proposal which would have established the number
of rating levels for appraising employees' performance in all job
elements was inconsistent with management's rights to direct employees
and assign work under section 7106(a)(2)(A) and (B) of the Statute.
Accordingly, for the reasons fully stated in Department of Justice,
supra, Union Proposal 5 is outside the duty to bargain.
Union Proposal 6
An employee will receive a within grade increase at the time
intervals established by law, if his or her performance is at an
acceptable level of competence. Performance is at an acceptable
level of competence if each critical element is at least
satisfactory and if in fact the performance of one or more
elements exceeds the minimum standard for satisfactory.
Question Before the Authority
The question presented is whether, as alleged by the Agency, the
Union's proposal is inconsistent with the rights to direct employees in
the agency or to assign work under, respectively, section 7106(a)(2)(A)
and (B) of the Statute.
Opinion
Conclusion and Order: The Union's proposal is inconsistent with
section 7106(a)(2)(A) and (B) of the Statute. Accordingly, pursuant to
section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED
that the petition for review be, and it hereby is, dismissed.
Reasons: Union Proposal 6 would establish the quality of job
performance which would evidence an "acceptable level of competence" so
as to qualify an employee for a within-grade salary increase. That is,
the proposal would have the effect of requiring bargaining over the
quality of performance required to achieve a particular overall rating
(i.e., fully successful or its equivalent) in the Agency's performance
appraisal system. For the following reasons, it is not within the duty
to bargain.
5 U.S.C. 5335(a) provides that an employee in the General Schedule
shall be advanced to the next higher within-grade rate at certain
intervals provided, inter alia, the work of the employee is of an
acceptable level of competence, as determined by the head of the agency.
Such determinations must be based upon an employee's performance
appraisal under an agency's appraisal system established pursuant to
chapter 43 of title 5, U.S. Code. That is, in section 4302(a)(3),
Congress manifested its intention to create a unified system in which
performance appraisals would be the basis for all personnel actions for
"rewarding . . . employees." /9/ This intention is articulated in the
Senate report on the Civil Service Reform Act of 1978 which states that
the Act "requires that performance evaluation be used as a basis for all
decisions about rewarding . . . Federal employees." /10/ Furthermore,
implementing Government-wide regulations /11/ promulgated by the Office
of Personnel Management provide that the phrase "acceptable level of
competence" means performance which is "fully acceptable" (or the
equivalent such as "fully satisfactory" or "fully successful" as used in
an agency's performance plan). 5 CFR 531.403(1982). Thus, under
applicable statutory provisions, the quality of an employee's
performance which is an acceptable level of competence for salary
purposes is the same as that which is necessary to attain an overall
rating of fully successful under an agency's performance appraisal plan.
Meyer v. Department of Health and Human Services, Social Security
Administration, 666 F.2d 540 (Ct. Cl. 1981); see also Parker v. Defense
Logistics Agency, 1 MSPB 489, 501-04(1980). /12/ It follows that a
proposal such as Union Proposal 6, requiring negotiation of the former,
would be tantamount to a proposal requiring negotiation of the latter.
In Department of Justice, supra, the Authority determined that an
essential aspect of management's assignment of work and the supervision
and guidance of employees with respect to various rewards, including
within-grade increases, is to establish performance requirements for
each overall level of performance. Thus, the Authority held that a
proposal to establish such requirements was inconsistent with the rights
to direct employees and assign work under section 7106(a)(2)(A) and (B).
Since Union Proposal 6, herein, which would require negotiations over
the quality of employee performance necessary to attain a positive
acceptable level of competence rating, is linked by regulation to, and
thereby would be determinative of, the performance requirement for a
fully successful overall performance rating, it is, for the reasons set
forth in Department of Justice, not within the duty to bargain. /13/
Union Proposal 7
Failure of a supervisor to provide a timely notice as required
above shall constitute proof that as of the deadline the
supervisor believed the employee to be performing at an acceptable
level of competence, unless management can prove that the
supervisor was a mental incompetent or was committing an act of
deliberate insubordination.
Question Before the Authority
The question presented is whether, as alleged by the Agency, the
Union's proposal is inconsistent with 5 U.S.C. 5335(a)(B) or 5 Cfr, part
531, subpart D.
Opinion
Conclusion and Order: The Union's proposal is not inconsistent with
5 U.S.C. 5335(a)(B) or 5 CFR, Part 531, subpart D. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
IS ORDERED that the Agency shall upon request (or as otherwise agreed to
by the parties) bargain concerning the proposal.
Reasons: The Agency characterizes the proposal as requiring an
automatic determination that an employee is entitled to a within-grade
increase if a supervisor fails to timely inform an employee that he or
she is not performing at an acceptable level of competence. On its face
and as explained by the Union, however, the sole effect of the proposal
would be to create a rebuttable presumption regarding the supervisor's
belief as to the level of the employee's performance during the waiting
period. Since the Agency would be free to determine the actual level of
the employee's performance from any other source, notwithstanding the
presumed belief of the supervisor, the proposal would not interfere with
the Agency's making an acceptable level of competence determination
under 5 U.S.C. 5335(a) or 5 CFR, Part 531, subpart D. Accordingly, the
proposal is within the duty to bargain.
Union Proposal 8
If, notwithstanding management's innocent or culpable failure
to provide a timely written notice of alleged deficiencies,
management believes on or before the date the waiting period ends
that the employee is not performing at an acceptable level of
competence, a written notice to this effect, as in section 18,
above, will be given. This statement will note that a decision on
providing the within-grade will be made upon expiration of a
sixty-day period, and that if the decision is positive, the
within-grade will be effective retroactive to the end of the
statutory waiting period. (Only the underscored portions of the
proposal are disputed.)
Question Before the Authority
The question presented is whether, as alleged by the Agency, the
underscored portions of the proposal are inconsistent with 5 CFR
531.412.
Opinion
Conclusion and Order: The first portion of the proposal which
concerns making an acceptable level of competence determination after
sixty days (determination clause) is not inconsistent with 5 CFR
531.412, and is within the duty to bargain. The portion which would
require retroactive within-grade pay increases (retroactivity clause) is
inconsistent with 5 CFR 531.412, a Government-wide regulation, and is
outside the duty to bargain. Accordingly, IT IS ORDERED that the Agency
shall upon request (or as otherwise agreed to by the parties) bargain
concerning the determination clause of the proposal; IT IS FURTHER
ORDERED that the petition for review as to the retroactivity clause of
the proposal be, and it hereby is, dismissed.
Reasons: The Agency states that if the determination clause would
require the Agency to delay making an acceptable level of competence
determination until the end of a 60-day notice period, it is
inconsistent with 5 CFR 531.412. /14/ If, on the other hand, the clause
would require the Agency to make an additional acceptable level of
competence determination 60 days later, the Agency concedes that it
would not prevent management from making a determination at the end of a
waiting period as required by regulation. /15/ The Union explicitly
states that the proposal is intended only to require an additional
determination in the event that the requisite notice is not given, not
to preclude the Agency from making a determination at the end of a
waiting period. /16/ This interpretation is consistent with the
language of the proposal and is adopted for the purposes of this
decision. So interpreted, the determination clause would not be
inconsistent with applicable regulations and is within the duty to
bargain.
Turning to the retroactivity clause of the proposal, it would require
that where, after an initial negative acceptable level of competence
determination, a subsequent determination is positive, the within-grade
increase be paid retroactively to the end of the employee's waiting
period. Under 5 CFR 531.412(a), a retroactive payment is permissible
only when, due to administrative error, oversight, or delay, a positive
determination is made after the waiting period is completed. However, 5
CFR 531.412(b) expressly states that when an acceptable level of
competence is achieved at some time after a negative determination, the
effective date of the pay increase is the first day of the first pay
period after the acceptable determination has been made. Since the
retroactivity clause of Union Proposal 8 is not limited to the
circumstances enumerated in section 531.412(a) but, instead, would
mandate retroactivity in all cases, including instances when an
acceptable level is achieved after a negative determination, that
portion of the proposal is inconsistent with 5 CFR 531.412(b).
Having determined that the retroactivity clause is inconsistent with
5 CFR 531.412(b), the question becomes whether the provision is a
Government-wide rule or regulation within the meaning of section 7117(a)
of the Statute, which will bar negotiation of inconsistent proposals.
The provision is codified at title 5 of the Code of Federal Regulations
by the Office of Personnel Management. By its terms, the regulation
applies, generally, to employees classified and paid under the General
Schedule. As such, the regulation is generally applicable in most
segments of the executive branch of the Federal Government. Therefore,
5 CFR 531.412(b) is a Government-wide rule or regulation within the
meaning of the Statute. National Treasury Employees Union, Chapter 6
and Internal Revenue Service, New Orleans District, 3 FLRA 754(1980).
Consequently, the retroactivity clause is outside the duty to bargain.
Issued, Washington, D.C., February 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Without passing upon the Union's contentions regarding the
procedural sufficiency of the Agency's motion to dismiss the petition,
the Authority denies the motion on its merits. The Authority finds,
contrary to the Agency's contentions, that the question of whether the
proposals addressed herein are subject to bargaining has not been
rendered moot. Cf. Federal Employees Metal Trades Council, AFL-CIO and
Department of the Navy, Mare Island Naval Shipyard, 7 FLRA 701(1982)
wherein the Authority found that inasmuch as the parties had reached
agreement on the matter which was the subject of the appeal involved,
the case had been rendered moot.
/2/ Section 7106(a)(2) provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
* * * *
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted;
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the
agency mission during emergencies.
/3/ Effective July 23, 1982, during the pendency of this case, the
Federal Employees Flexible and Compressed Work Schedules Act of 1982,
Pub. L. No. 97-222, 96 Stat. 227 added a new subchapter II to chapter 61
of title 5, U.S. Code. Of course, Union Proposal 1, if agreed upon,
would have to be administered in conformity with the requirements of
that Act.
/4/ See American Federation of Government Employees, AFL-CIO, Local
2875 and Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, Southeast Fisheries
Center, Miami Laboratory, Florida, 5 FLRA 441(1981) (Union Proposals 1,
2 and 3).
/5/ Section 7106(a)(1) provides in pertinent part as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(1) to determine the . . . internal security practices of the
agency(.)
/6/ In view of the decision herein, the Authority finds it
unnecessary to consider the other contentions of the Agency with respect
to the negotiability of the proposal.
/7/ Union Reply Brief at 12-13.
/8/ The Agency concedes that it would not contest the negotiability
of the proposal if it applied only to career-ladder promotions.
/9/ Section 4302(a)(3) provides:
Sec. 4302. Establishment of performance appraisal systems
(a) Each agency shall develop one or more performance appraisal
systems which--
* * * *
(3) use the results of performance appraisals as a basis for
training, rewarding, reassigning, promoting, reducing in grade,
retaining, and removing employees(.)
/10/ S.Rep. No. 95-969, 95th Cong., 2d. Sess. 10 (1978).
/11/ See discussion of 5 CFR 531.412 in connection with Union
Proposal 8, infra.
/12/ But see Schramm v. Department of Health and Human Services, 682
F.2d 85 (3rd Cir. 1982) (denial of within-grade step increase does not
constitute action based upon unacceptable performance within the meaning
of 5 U.S.C. 4303).
/13/ In view of this decision, the Authority finds it unnecessary to
address the remaining contention of the Agency as to the negotiability
of the proposal.
/14/ 5 CFR 531.412 provides:
Sec. 531.412 Effective date of within-grade increase.
(a) Except as provided in paragraph (b) of this section, a
within-grade increase shall be effective on the first day of the
first pay period following completion of the required waiting
period and in compliance with the conditions of eligibility.
When, due to administrative error, oversight, or delay, a positive
determination is made after the waiting period is completed, the
effective date of the within-grade increase shall be retroactive
to the original due date.
(b) When an acceptable level of competence is achieved at some
time after a negative determination, the effective date is the
first day of the first pay period after the acceptable
determination has been made.
/15/ Agency Statement of June 26, 1981, at 7.
/16/ Union Reply Brief at 18-19.