National Treasury Employees Union (Union) and Department of Health and Human Services, Region X, Seattle, Washington (Activity)

 



[ v05 p688 ]
05:0688(93)NG
The decision of the Authority follows:


 5 FLRA No. 93
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, REGION X,
 SEATTLE, WASHINGTON
 Activity
 
                                            Case No. 0-NG-286
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101
 ET SEQ.).
 
    DURING THE COURSE OF CONTRACT NEGOTIATIONS, THE UNION SUBMITTED A
 PROPOSAL CONCERNING THE RATING SCHEDULE TO BE USED IN CONNECTION WITH
 MERIT PROMOTIONS.  THE ACTIVITY DECLARED THE PROPOSAL NONNEGOTIABLE WITH
 RESPECT TO SOME UNSPECIFIED "TECHNICAL PROGRAM OPERATIONS JOBS" IN THE
 BARGAINING UNIT, ASSERTING THAT THERE IS A COMPELLING NEED FOR THE
 SOCIAL SECURITY ADMINISTRATION (SSA) TO MAINTAIN NATIONAL STANDARD
 FACTORS AND WEIGHTS FOR PROMOTION AS TO SUCH POSITIONS.  THE UNION'S
 PROPOSAL IS AS FOLLOWS:  /1/
 
                              UNION PROPOSAL
 
                              MERIT PROMOTION
 
                                APPENDIX A
 
                PROCEDURES FOR EVALUATING/RATING ELIGIBLES
 
    1.  RELATIVE VALUES OF RATING ELEMENTS WILL BE ASSIGNED AND RATING
 SCHEDULES DEVELOPED FOR EACH INDIVIDUAL POSITION.
 
    ONCE ESTABLISHED THE RATING SCHEDULE WILL REMAIN THE SAME EACH TIME
 THE SAME OR IDENTICAL POSITION IS ANNOUNCED.  THE TOTAL VALUE TO BE
 ASSIGNED IS 100.  THE MINIMUM AND MAXIMUM VALUE ASSIGNED TO EACH ELEMENT
 SHALL BE AS FOLLOWS:
 
    2.  THE PERFORMANCE APPRAISAL WILL HAVE A VALUE OF 55 POINTS.  THE
 OTHER FACTORS WILL HAVE A TOTAL OF 45 POINTS, WITH THE EXPERIENCE FACTOR
 HAVING A MAXIMUM OF 35 POINTS.  THE OTHER FACTORS ARE LIMITED TO AWARDS,
 OUTSIDE ACTIVITIES ADDITIONAL RANKING FACTORS (IF ANY), AND TRAINING AND
 SELF DEVELOPMENT.
 
    3.  WHEN PANELS ARE USED, THE TOTAL SCORES ASSIGNED BY INDIVIDUAL
 PANEL MEMBERS WILL BE AVERAGED TO ARRIVE AT A FINAL RATING FOR EACH
 CANDIDATE.
 
    4.  CANDIDATES RECEIVING A SCORE OF 50 POINTS OR MORE WILL BE RATED
 AS HIGHLY QUALIFIED.
 
    5.  EVALUATION METHOD FOR PERFORMANCE APPRAISALS
 
    IN RATING QUALIFIED CANDIDATES, PERFORMANCE APPRAISALS WILL BE
 EVALUATED AS FOLLOWS:
 
    STEP 1-- ADD UP THE RATING SCORES ON THE FIVE PERFORMANCE APPRAISAL
 FACTORS.
 
    STEP 2-- MULTIPLY THE TOTAL BY 2.2.
 
    STEP 3-- THE TOTAL REPRESENTS THE APPLICANT'S PERFORMANCE APPRAISAL
 SCORE.
 
    EMPLOYEES OF OTHER FEDERAL AGENCIES WILL BE CREDITED POINTS BY
 EQUATING THEIR APPRAISAL CATEGORIES TO OURS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING MERIT
 PROMOTION PROCEDURES FALLS WITHIN THE DUTY TO BARGAIN AS SET FORTH IN
 SECTION 7117 OF THE STATUTE, /2/ OR WHETHER, AS ALLEGED BY THE AGENCY,
 THE DUTY TO BARGAIN DOES NOT EXTEND TO THE PROPOSAL BECAUSE THERE IS A
 COMPELLING NEED FOR SSA TO MAINTAIN NATIONAL FACTORS AND WEIGHTS FOR
 PROMOTION.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE AGENCY HAS FAILED TO SUPPORT ITS
 ALLEGATION THAT THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN AS
 SET FORTH IN SECTION 7117 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10,
 AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON
 REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
 THE SUBJECT PROPOSAL.  /3/
 
    REASONS:  AS NOTED ABOVE, THE AGENCY'S SOLE CONTENTION IS THAT A
 COMPELLING NEED EXISTS FOR THE NATIONAL STANDARD FACTORS AND WEIGHTS
 ESTABLISHED BY SSA, A PRIMARY NATIONAL SUBDIVISION, WITH RESPECT TO
 PROMOTIONS INVOLVING THOSE EMPLOYEES OF THE ACTIVITY OCCUPYING HIGH
 GRADED TECHNICAL PROGRAM JOBS.  THE AGENCY ASSERTS THAT NATIONAL
 STANDARDIZATION OF FACTORS AND WEIGHTS IS ESSENTIAL TO THE
 ACCOMPLISHMENT OF ITS MISSION OF FURNISHING UNIFORM SOCIAL INSURANCE AND
 OTHER PROGRAM BENEFITS TO THE GENERAL PUBLIC.  THE AGENCY'S CONCERN
 APPEARS TO BE THAT LOCAL NEGOTIATIONS WHICH WOULD VARY THE FACTORS AND
 WEIGHTS USED IN RATING AND EVALUATING CANDIDATES FOR CERTAIN SSA
 POSITIONS MIGHT RESULT IN LESS TECHNICALLY COMPETENT INDIVIDUALS
 OCCUPYING THOSE POSITIONS, IN TURN NEGATIVELY AFFECTING THE QUALITY OF
 SERVICE PROVIDED BY THE SSA IN REGION X.
 
    THE AUTHORITY HAS PREVIOUSLY STATED THAT WHERE AN AGENCY ASSERTS A
 COMPELLING NEED EXISTS FOR AN INTERNAL AGENCY REGULATION TO BAR
 NEGOTIATIONS ON A CONFLICTING COLLECTIVE BARGAINING PROPOSAL UNDER
 SECTION 7117(A)(2) (SUPRA N. 2), "THE AGENCY BEARS THE BURDEN OF COMING
 FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ASSERTION THAT THE REGULATION
 IN QUESTION BARS NEGOTIATIONS . . ." /4/ IN THE INSTANT CASE, THE AGENCY
 HAS FAILED TO COME FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ALLEGATION
 THAT A COMPELLING NEED EXISTS WITHIN THE MEANING OF THE STATUTE AND
 SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS /5/ FOR AN
 AGENCY RULE OR REGULATION CONCERNING NATIONAL STANDARD FACTORS AND
 WEIGHTS WHICH PURPORTEDLY GOVERN THE FILLING OF UNSPECIFIED SSA
 POSITIONS IN REGION X, AND FURTHER HAS FAILED TO DEMONSTRATE IN WHAT
 MANNER THE UNION'S PROPOSAL WOULD CONFLICT WITH THE NATIONAL STANDARD
 AND HENCE BE NONNEGOTIABLE.  IN THE LATTER REGARD, THE AGENCY HAS NOT
 EVEN IDENTIFIED OR SUBMITTED FOR THE AUTHORITY'S CONSIDERATION, AS
 REQUIRED BY SECTION 2424.6(A)(2) OF THE RULES AND REGULATIONS, THE
 INTERNAL RULE OR REGULATION WHICH IS THE SUBJECT OF THE COMPELLING NEED
 ARGUMENT AND WHICH PURPORTEDLY CONTAINS THE NATIONAL FACTORS AND
 WEIGHTS.  UNDER THESE CIRCUMSTANCES, THE AUTHORITY FINDS THAT THE AGENCY
 HAS FAILED TO SUPPORT IN ANY MANNER ITS ALLEGATION THAT THE UNION'S
 PROPOSAL IS BARRED FROM NEGOTIATIONS BECAUSE OF AN INTERNAL AGENCY RULE
 OR REGULATION FOR WHICH A COMPELLING NEED EXISTS.  MOREOVER, THE AGENCY
 HAS NOT ALLEGED, NOR DOES IT OTHERWISE APPEAR, THAT THE UNION'S PROPOSAL
 IS INCONSISTENT WITH ANY FEDERAL LAW OR GOVERNMENT-WIDE RULE OR
 REGULATION SO AS TO BE OUTSIDE THE DUTY TO BARGAIN.  /6/
 
    ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS
 NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., MAY 28, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION FILED WITH
 THE AUTHORITY, THE UNION ATTACHED A PROPOSAL WHICH IS SLIGHTLY DIFFERENT
 FROM THAT ORIGINALLY SUBMITTED IN ITS PETITION FOR REVIEW AS SET FORTH
 HEREIN.  INASMUCH AS THE ACTIVITY'S ALLEGATION OF NON-NEGOTIABILITY, THE
 UNION'S PETITION FOR REVIEW AND THE AGENCY'S STATEMENT OF POSITION ALL
 ADDRESSED THE LANGUAGE OF THE PROPOSAL AS ORIGINALLY SUBMITTED, THE
 AUTHORITY'S DECISION IN THIS CASE IS BASED THEREON CONSISTENT WITH THE
 CONDITIONS GOVERNING REVIEW OF NEGOTIABILITY ISSUES SET FORTH IN SECTION
 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.1).
 
    /2/ SECTION 7117(A) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY
 
    AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
 SUBSECTION ONLY IF THE
 
    AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
 COMPELLING NEED (AS
 
    DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
 THE RULE OR REGULATION.
 
    (3) PARAGRAPH (2) OF THE SUBSECTION APPLIES TO ANY RULE OR REGULATION
 ISSUED BY ANY AGENCY
 
    OR ISSUED BY ANY PRIMARY NATIONAL SUBDIVISION OF SUCH AGENCY, UNLESS
 AN EXCLUSIVE
 
    REPRESENTATIVE REPRESENTS AN APPROPRIATE UNIT INCLUDING NOT LESS THAN
 A MAJORITY OF THE
 
    EMPLOYEES IN THE ISSUING AGENCY OR PRIMARY NATIONAL SUBDIVISION, AS
 THE CASE MAY BE, TO WHOM
 
    THE RULE OR REGULATION IS APPLICABLE.
 
    /3/ IN DECIDING THAT THE DISPUTED PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF SUCH
 PROPOSAL.
 
    /4/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1928 AND DEPARTMENT OF THE NAVY, NAVAL AIR DEVELOPMENT CENTER,
 WARMINSTER, PENNSYLVANIA, 2 FLRA NO. 62 (1980).
 
    /5/ SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS
 PROVIDES:
 
    SEC. 2424.11 ILLUSTRATIVE CRITERIA
 
    A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
 ANY CONDITION OF
 
    EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE OR REGULATION
 MEETS ONE OR MORE OF THE
 
    FOLLOWING ILLUSTRATIVE CRITERIA:
 
    (A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
 HELPFUL OR DESIRABLE, TO THE
 
    ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
 AGENCY OR PRIMARY NATIONAL
 
    SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
 AN EFFECTIVE AND
 
    EFFICIENT GOVERNMENT.
 
    (B) THE RULE OR REGULATION IS NECESSARY TO INSURE THE
 
    MAINTENANCE OF BASIC MERIT PRINCIPLES.
 
    (C) THE RULE OR REGULATION IMPLEMENTS A MANDATE TO THE AGENCY OR
 PRIMARY NATIONAL
 
    SUBDIVISION UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
 IMPLEMENTATION IS ESSENTIALLY
 
    NON-DISCRETIONARY IN NATURE.
 
    /6/ SEE, E.G., INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL F-61
 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66(1980) AT P. 4 OF THE
 DECISION AND NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
 TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO.  119(1980) AT P. 9 OF
 THE DECISION.