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34 FLRA No. 154

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 3354

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FARMERS HOME ADMINISTRATION

FINANCE OFFICE, ST. LOUIS, MISSOURI

(Activity)

0-NG-1634

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 23, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). This case concerns the negotiability of a portion of one provision of a collective bargaining agreement negotiated by the Union and the Activity which was disapproved by the U.S. Department of Agriculture (the Agency) under section 7114(c) of the Statute.

The portion of the provision which is in dispute requires the Activity to honor an employee's request for Union representation during a discussion between the employee and the employee's supervisor concerning the issuance of an "opportunity to improve performance" letter. For the reasons that follow, we find the disputed wording of the provision to be negotiable.

II. Provision

An employee with whom a supervisor is conducting a discussion regarding a decision to deny the Employee's within-grade salary increase or to issue an opportunity to improve performance letter (under the provisions of Article 15 of the Labor-Management Relations [LMR] Agreement) will, upon request, be afforded the opportunity for Union representation. [Only the underscored portion of the provision is in dispute.]

III. Positions of the Parties

A. The Agency

The Agency first contends that the disputed wording is contrary to section 7114(a)(2)(A) of the Statute. The Agency asserts that a discussion between an employee and a supervisor concerning the issuance of an opportunity to improve performance letter is neither a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute nor an examination in connection with an investigation within the meaning of section 7114(a)(2)(B) of the Statute. The Agency claims that the discussion is "a counseling session . . . mandated by regulations of the Office of Personnel Management at 5 C.F.R. § 430.204(j)(2) and § 432.203(b)." Statement of Position at 5. The Agency contends that "it would be inconsistent and contrary to the provisions of the Statute for the Agency to acquiesce to the Union's provision which would allow Union representation during a performance appraisal counseling discussion." Id. at 6. In support of its position, the Agency relies on Internal Revenue Service, Detroit, Michigan, 5 FLRA 421 (1981) (Internal Revenue Service).

The Agency also asserts that the Authority's holding in Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 331 (1987) (Library of Congress) does not establish that the Union has the right to be included in informal discussions concerning the issuance of an opportunity to improve performance letter. According to the Agency, the disputed wording is merely an attempt by the "Union to negotiate a right which goes far beyond statutory and regulatory requirements[.]" Id. at 9-10. In support, the Agency relies on National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Mountain Plains Region, 30 FLRA 502 (1987) (Food and Nutrition Service).

The Agency further contends that the disputed wording is inconsistent with 5 C.F.R. § 432.204(c), a Government-wide regulation which restates the requirements of section 7114 of the Statute as to when an employee is entitled to union representation. The Agency argues that the disputed wording of the provision conflicts with 5 C.F.R. § 432.204(c) because it conflicts with section 7114 of the Statute.

The Agency also argues that the disputed wording directly interferes with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work. The Agency contends that "the presence of a Union representative during a performance appraisal counseling session would cause a chilling and adverse impact on the process." Statement of Position at 9. The Agency also contends that the presence of a Union representative could cause a "delay in the performance appraisal process and would allow the Union to inappropriately interject itself into a very delicate and complex procedure." Id. The Agency concludes that "[t]he presence of a Union representative during this extremely important and highly private counseling session" would directly interfere with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work. Id.

Finally, the Agency contends that the disputed wording does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Agency argues that the disputed wording "cannot be construed to be an appropriate arrangement for an employee adversely affected by a management decision." Id. at 8. According to the Agency, the only decision made by management at the time an opportunity to improve performance (PIP) letter is issued to an employee is that the employee's performance is not "'fully successful.'" The Agency claims further that the issuance of the PIP letter "involves solely the supervisor's expectation of what the employee is expected to accomplish during a specified period of time, and does not involve any aspect of discipline." Id.

B. The Union

The Union asserts that the disputed wording does not conflict with section 7114(a)(2)(A) or (B) of the Statute, management's rights pursuant to section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work, or applicable rules or regulations. The Union also asserts that if the disputed wording conflicts with a management right, it constitutes an appropriate arrangement for employees who are adversely affected by the exercise of that management right.

The Union argues that the disputed wording is not contrary to section 7114(a)(2) of the Statute. According to the Union, Library of Congress establishes that the Agency's duty to negotiate concerning union representation of employees is not limited to the rights given employees under the Statute. The Union contends that the cases cited by the Agency are inapposite because they concerned unfair labor practice allegations over alleged violation of statutory rights.

The Union contends further that the disputed wording does not conflict with 5 C.F.R. §§ 430.204(j)(2), 432.203(b) or 432.204(c). According to the Union, these regulations require that (1) employees be informed of performance standards they must meet to be retained; (2) an agency inform employees of the critical elements of their positions and afford employees a reasonable time to improve their performance before taking action to reduce their grade or remove them; and (3) employees be afforded representation in personnel actions involving unacceptable performance. The Union states that nothing in the disputed wording prevents the Agency from informing employees of applicable performance standards and elements or affording employees a reasonable time to improve performance. In addition, the Union states that the disputed wording does not interfere with an employee's right to representation in a personnel action involving unsatisfactory performance. Moreover, the Union claims that the disputed wording is consistent with 5 C.F.R. § 432.204(c), which, according to the Union, provides that representation rights may be negotiated collectively. In support of its position, the Union cites Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351 (1986) (Proposal 3).

The Union also disputes the Agency's claim that the disputed wording violates management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. The Union argues that nothing in the record before the Authority supports the Agency's claim that employee representation in circumstances where representation is not required by 5 U.S.C. § 7114(a)(2)(A) or (B) interferes with the Agency's right to assign work or direct employees.

Finally, the Union argues that if the disputed wording is determined to interfere with management's rights, the disputed wording is negotiable as an appropriate arrangement for employees who have been adversely affected by the exercise of those management rights. The Union claims that the disputed wording constitutes an appropriate arrangement "because it is triggered by the adverse effects [sic] of the 'opportunity to improve performance' letter." Reply Brief at 20.

IV. Analysis and Conclusion

A. The Disputed Wording Is Not Inconsistent with Section 7114 of the Statute

Section 7114(a)(2) of the Statute provides that a union is entitled to be present at (1) meetings between an agency and employees which constitute formal discussions; and (2) certain examinations of employees in connection with investigations, if requested by employees. Nothing in section 7114(a)(2) of the Statute precludes a union from negotiating to represent employees in situations other than the two listed in that section. Further, the legislative history of section 7114 of the Statute indicates that Congress intended to permit unions to negotiate representation rights in addition to those set out in section 7114. See 124 Cong. Rec. 29,188 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Comm. Print No. 96-7, 96th Cong., 1st Sess. 933 (1979). Thus, an agency's duty to negotiate concerning representation of employees is not limited to the rights granted in section 7114(a)(2) of the Statute. American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 354-57 (1982) (Proposal 5), reversed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (Immigration and Naturalization Service). Therefore, we find that the disputed wording is not inconsistent with section 7114(a)(2) of the Statute.

Because section 7114(a)(2) does not bar negotiation of the disputed wording, the Agency's reliance on Internal Revenue Service is misplaced. Internal Revenue Service concerned whether an employee's meeting with his supervisor concerning the employee's performance evaluation was an examination within the meaning of section 7114(a)(2)(B) of the Statute. The Authority affirmed the Judge's finding that section 7114(a)(2)(B) of the Statute does not require that an exclusive representative be represented at a regular, periodic performance evaluation. In this case, the Union is not seeking to enforce its statutory rights under section 7114(a)(2) of the Statute. The Union is seeking to create a contractual right for unit employees to be represented in a situation which, according to the Union, is not covered by section 7114(a)(2).

We also find that the Agency's reliance on Food and Nutrition Service is misplaced. In Food and Nutrition Service, the Authority relied on its decision in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 15 FLRA 714, 714-15 (1984) and found that a proposal which created a procedural protection for probationary employees who were about to be terminated was nonnegotiable. In Food and Nutrition Service, the Authority stated that the Office of Personnel Management (OPM) was responsible for providing "'whatever procedural protections are necessary for probationary employees'" (quoting Immigration and Naturalization Service, 709 F.2d 724, 729 (D.C. Cir. 1983)) and, further, that "in enacting the Statute, Congress did not intend the procedural protections for probationary employees to be established through collective bargaining under the Statute." Food and Nutrition Service at 503. Because the proposal in Food and Nutrition Service created a procedural protection which exceeded those provided in the OPM regulations, the Authority found that the proposal was inconsistent with law and regulation. In this case, however, the legislative history of section 7114 of the Statute indicates that Congress intended to permit unions to negotiate representational rights in addition to those provided in section 7114 of the Statute. Therefore, unlike the proposal at issue in Food and Nutrition Service, the disputed wording in this case is consistent with section 7114 of the Statute.

In summary, nothing in the plain wording or legislative history of section 7114(a)(2) of the Statute supports the conclusion that a union may not seek to negotiate contractual rights to union representation which exceed those in section 7114(a)(2). The disputed wording is not, therefore, inconsistent with section 7114(a)(2) of the Statute.

B. The Disputed Wording Does Not Conflict With 5 C.F.R. § 432.204(c)

5 C.F.R. § 432.204 specifies procedures for effecting reductions in grade and removals based on unacceptable performance. 5 C.F.R. § 432.204(c) provides, in relevant part, that "5 U.S.C. 7114(a)(5) and the terms of any applicable collective bargaining agreement govern representation for employees in an exclusive bargaining unit." 5 U.S.C. § 7114(a)(5) provides:

The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from--

(A) being represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action; or

(B) exercising grievance or appellate rights established by law, rule, or regulation;

except in the case of grievance or appeal procedures negotiated under this chapter.

The disputed wording does not concern the right of an employee, whose reduction in grade or removal is proposed based on unacceptable performance, to be represented by an attorney or other representative. The disputed wording concerns only an employee's request for union representation during a discussion concerning the issuance of an opportunity to improve performance letter. As the disputed wording does not address the subject matter of 5 C.F.R. § 432.204(c), we find that the disputed wording is not inconsistent with that regulation.

C. The Disputed Wording Does Not Interfere with Management's Rights To Direct Employees and Assign Work

We reject the Agency's claim that the disputed wording conflicts with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

The disputed wording applies only after management has determined: (1) that an employee's performance is not at the "fully successful" level in the employee's Standards of Performance; (2) what the employee must do to meet the "fully successful" level; (3) what management will do to assist the employee to meet the "fully successful" level; and (4) a time frame during which the employee will be expected to improve his/her performance. The disputed wording does not concern the content of the information to be communicated to an employee during a discussion to issue an opportunity to improve performance letter. Rather, the disputed wording focuses solely on Union representation concerning the issuance of an opportunity to improve performance letter and authorizes the Union to be present only if the employee requests such representation. In our view, the disputed wording applies only after the Agency's internal deliberative process concerning application of performance standards has been completed. Consequently, we conclude that the disputed wording does not permit the Union to interject itself into the Agency's internal deliberations concerning the performance appraisal process.

We also reject the Agency's claim that the disputed wording interferes with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work because the disputed wording would delay the Agency's performance evaluation process. There is nothing in the record to support this claim. Moreover, nothing in the disputed wording permits an employee to refuse to attend a discussion to issue an opportunity to improve performance letter. Compare Department of Labor, Employment Standards Administration, 13 FLRA 164 (1983) (no violation of the Statute occurred when an agency directed an employee to answer inquiries in the absence of union representative requested under section 7114(a)(2)(B) of the Statute in circumstances where the agency had taken reasonable steps to ensure that the union had an opportunity to represent the employee). Therefore, we find that the disputed wording does not interfere with the Agency's rights to direct employees and to assign work.

V. Conclusion

The disputed wording is not inconsistent with section 7114 of the Statute or with 5 C.F.R. § 432.204(c), and does not interfere with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Therefore, the disputed wording is negotiable.

In view of our decision that the disputed wording does not interfere with the Agency's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work, it is unnecessary to address the Union's contention that the disputed wording constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

VI. Order

The Agency must rescind its disapproval of the disputed wording which was bargained on and agreed to by the parties at the local level.^(*)

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In finding the disputed wording to be negotiable, we make no judgment as to its merits.

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