[ v21 p298 ]
21:0298(37)NG
The decision of the Authority follows:
21 FLRA No. 37
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
U.S. ARMY ENGINEER
DISTRICT, KANSAS CITY, MO.
Agency
Case No. 0-NG-547
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of the underscored portion of the following Union
proposal.
Annual ratings are effective as of the date approved and remain
the employee's current official rating for one year or until
replaced by another rating or an entrance rating. An entrance
rating is an automatic official rating of Fully Successful, as a
minimum, unless an Exceptional or Highly Successful rating has
been given within the last 12 months, in which case, that rating
will be the entrance rating for one year from its effective date;
provided the employee has not changed career fields.
II. Positions of the Parties
The Agency contends that the proposal conflicts with an internal
agency regulation which provides that an employee's entrance rating when
changing positions will be "Fully Successful." It claims that a
compelling need exists for this regulation because it (1) implements in
an essentially nondiscretionary manner the mandate of a Government-wide
regulation and (2) is essential to the maintenance of basic merit
principles. It argues that the proposal is, therefore, outside the duty
to bargain under section 7117(a)(2) of the Statute.
The Union contends that the Agency has not demonstrated a compelling
need for its regulation.
III. Analysis and Conclusion
The Union's proposal provides that an employee whose past performance
warranted an "Exceptional" or "Highly Successful" rating would retain
that rating for one year and would receive the same rating as an
entrance rating when changing positions during that year. The proposal
conflicts with Army Regulation 690-400, Chapter 430 which provides that
an employee's entrance rating is an automatic official rating of "Fully
Successful." However, an agency regulation does not bar negotiation on a
conflicting union proposal unless the agency demonstrates that its
regulation is supported by a compelling need. American Federation of
Government Employees, AFL-CIO, Local 1928 and Department of the Navy,
Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450, 454
(1980).
The Agency first contends that there is a compelling need for its
regulation under the illustrative standard for determining whether a
compelling need exists as set forth in section 2424.11(c) of the
Authority's Rules. It claims that a Department-wide performance
appraisal system which results in consistent ratings throughout the
Agency is required to implement the requirement of 5 CFR 351.201(c).
/1/ That provision states that 5 CFR Part 351 must be "uniformly and
consistently applied in any one reduction in force (RIF)." The Agency
argues that the Union's proposal would result in employees in different
bargaining units who had performed equally well receiving different
entrance ratings and, consequently, different service credit in the
event of a RIF. /2/
Both the Union proposal and the agency regulation do not specifically
concern the amount of service credit which an employee will receive
under OPM regulation. Rather, the proposal and the agency's regulation
each establish an entrance rating which would serve as the basis for
determining the service credit to which an employee would be entitled.
The Agency has not shown that the only way it could apply section
351.504(d) in a uniform and consistent manner is by giving all employees
an entrance rating of "Fully Successful." It has not demonstrated that
the Union's proposal would present it from crediting all employees with
similar ratings with the same amount of service credit as required under
section 351.504(d).
Moreover, the Agency would be required to replace its current
regulation with one similar to the Union's proposal under the new OPM
Performance Management System regulations effective April 10, 1986. 51
Fed. Reg. 8396-8421 (1986). The new regulations require all agencies to
transfer an employee's current performance rating of record to the
employee's new job when an employee moves to a new position between
performance appraisals. See 5 CFR 430.206(f) and 293.405(a). To the
same effect, the Federal Personnel Manual chapter implementing the RIF
regulations provides that "(r)egardless of whether the employee's
service occurred in one or more agencies," the additional service credit
an employee receives in a RIF should be based on "the employee's actual
ratings." Interim FPM chapter 351 section 3-9(d)(3) (transmitted March
4, 1986 by FPM Letter 351-20).
Additionally, the Agency has not provided support in the record for
its contention that the proposal, which applies only to employees in the
Kansas City District bargaining unit, would require it to treat
employees in a single competitive area inconsistently in the event of a
RIF. In this connection, the Agency does not claim that the competitive
area encompassing the Kansas City District bargaining unit also includes
positions and employees who are not within the bargaining unit. See
National Treasury Employees Union and Department of Health and Human
Services, Region IV, 11 FLRA 254 (1983), in which the Authority made no
determination as to whether Union Proposal 1 concerning competitive
areas applied to non-bargaining unit employees because the agency's sole
contention was that the proposal conflicted with a regulation for which
a compelling need existed.
The Agency also contends that its regulation satisfies the standard
for compelling need set forth in section 2424.11(b) of the Authority's
Rules because it is essential to the maintenance of basic merit
principles mandating fair and equitable treatment for employees set
forth at 5 U.S.C. Section 2301(b)(2) and (6). However, the Agency's
contentions amount to nothing more than a reassertion of its argument
concerning additional service credit based on performance disposed of
above.
The Authority finds that the Agency has failed to demonstrate that
its regulation is supported by a compelling need. Therefore, the
regulation does not bar negotiation on the Union proposal and the
proposal is within the duty to bargain. /3/
IV. Order
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 Union's
proposal.
Issued, Washington, D.C. April 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES$
(1) All references in this decision to the Office of Personnel
Management's regulations concerning reductions-in-force (RIF) in 5 CFR
Part 351 are to the revised regulations published at 51 Fed. Reg.
318-326 (1986) which became effective February 3, 1986 (hereinafter
referred to as the RIF regulations).
(2) The relevant regulation, 5 CFR 351.504(d), provides:
Section 351.504 Credit for performance.
. . . . . .
(d) The additional service credit an employee receives for
performance under this subpart shall be expressed in additional
years of service and shall consist of the mathematical average
(rounded in the case of a fraction to the next higher whole
number) of the employee's last three (actual and/or assumed)
annual performance ratings of record computed on the following
basis:
(1) Twenty additional years of service for each performance
rating of outstanding (Level 5) or equivalent;
(2) Sixteen additional years of service for each performance
rating of exceeds fully successful (Level 4) or equivalent; or
(3) Twelve additional years of service for each performance
rating of fully successful (Level 3) or equivalent.
(3) In finding the proposal to be within the duty to bargain, the
Authority makes no judgment as to its merits.