11:0247(52)NG - NTEU and Treasury, Customs Service, Washington, DC -- 1983 FLRAdec NG



[ v11 p247 ]
11:0247(52)NG
The decision of the Authority follows:


 11 FLRA No. 52
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 U.S. CUSTOMS SERVICE,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-250
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of a Union proposal establishing a
 crediting plan for bargaining unit positions.  /1/ The text of the
 proposal is set forth in the Appendix.
 
    The Union's proposal would establish a crediting plan for bargaining
 unit positions whereby applicants would be evaluated against job
 requirements for positions based upon five factors (criteria).  The
 Agency essentially alleges that the proposal is inconsistent with
 management's rights to hire, to determine the personnel by which Agency
 operations shall be conducted, and to make selections for appointments
 from among properly ranked and certified candidates for promotion or
 from any other appropriate source under section 7106(a)(2) of the
 Statute.  The Agency also contends the proposal is inconsistent with
 Federal Personnel Manual (FPM) Supplement principles concerning the
 disclosure of crediting plans and with FPM merit promotion requirements.
 
    In National Treasury Employees Union and NTEU Chapters 153, 161 and
 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983), the U.S.
 Customs Service similarly contended that two union proposals which
 established crediting plans for merit promotions regarding two
 bargaining unit positions were inconsistent with management's rights
 under section 7106(a)(2).  In that case, because the proposals only
 established the criteria for evaluating candidates, any of which
 management could select for appointment, and further, since under such
 crediting plans management would retain the right to determine the
 personnel and the knowledge, skills, and abilities which an employee
 must possess in order to do the work of the position, the Authority
 found the proposals constituted a negotiable procedure which did not
 prevent the agency from acting at all to exercise its rights under
 section 7106(a)(2) to make selections when filling positions, to
 determine the personnel by which agency operations would be conducted,
 or to hire employees in the agency.  The Authority also considered
 therein an agency argument that the provisions of subchapter S6, FPM
 Supplement 335-1 precluded it from disclosing or negotiating over the
 content of its crediting plans.  The Authority found that disclosure of
 the crediting plans set forth in the union's proposals was not
 inconsistent with the provisions of the FPM Supplement because if all
 candidates had equal access to the content of the crediting plan, no
 candidate would be disadvantaged by its disclosure nor would the
 selection process be compromised.  Thus, the FPM Supplement did not bar
 negotiations on the proposed crediting plans in that case.
 
    As already mentioned, the proposal in dispute herein would establish
 a crediting plan by which the qualifications of candidates for
 bargaining unit positions would be evaluated against the job
 requirements established by management to determine the extent to which
 each candidate possesses the qualifications for the position.  Nothing
 in the proposal would require the Agency to select a specific candidate
 or to make a selection from a particular certificate of candidates.  In
 this regard, the Union states, "the union proposal is clearly related
 only to procedures utilized in the promotion process and in no form or
 manner restricts or impedes management's right to make the ultimate
 selection." /2/ This crediting plan proposal is thus substantially
 identical to Union Proposals 1 and 2 in U.S. Customs Service, Region II
 and for the reasons set forth in that case is not inconsistent with
 management's rights under section 7106(a)(2) of the Statute nor with the
 disclosure principles set forth in FPM Supplement 335-1, subchapter
 S6-1.
 
    As to the Agency's additional argument that the proposal is
 inconsistent with a Government-wide rule or regulation under section
 7117(a)(1) of the Statute, /3/ Requirement 1 of subchapter 1-4, chapter
 335 of the FPM provides:
 
          Each agency must establish procedures for promoting employees
       which are based on merit and are available in writing to
       candidates.  . . . Actions under a promotion plan-- whether
       identification, qualification, evaluation, or selection of
       candidates-- . . . shall be based solely on job-related criteria.
 
 Under the plain language of portions of Sections 5K(1) and (3) of the
 proposal, when applicants are evaluated for a position, points or credit
 will be assigned for non job-related experience and education.  Although
 an agency has discretion in its development of merit promotion
 procedures under chapter 335 of the FPM, such procedures must be based
 on job-related factors.  Therefore, under the cited FPM requirement, an
 agency would not have the discretion to establish an evaluation plan
 which allows credit for a factor which has no relation to the position
 being filled.  Thus, these portions of Sections 5K(1) and (3) of the
 proposal are inconsistent with chapter 335, subchapter 1-4, Requirement
 1, of the FPM.  Thus, it must be decided whether the merit promotion
 requirements in chapter 335 of the FPM constitute a "Government-wide
 rule or regulation" within the meaning of the Statute.  Section 335.103
 of part 335 of title 5, Code of Federal Regulations, requires each
 agency to adopt and administer a "program designed to insure a
 systematic means of selection for promotion according to merit.  The
 promotion program shall conform with the standards and requirements of
 OPM." The requirements for agency merit promotion plans, as mentioned
 above, are set forth in chapter 335, subchapter 1-4, of the FPM and are
 applicable to Federal civilian employees in the competitive service
 within the executive branch of the Government.  /4/ Thus, FPM chapter
 335, subchapter 1-4, is generally applicable to the Federal civilian
 work force so as to be "Government-wide" within the meaning of section
 7117(a)(1) of the Statute.  See National Treasury Employees Union,
 Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748
 (1980).
 
    As to whether the requirements of FPM, chapter 335, subchapter 1-4,
 constitute a "rule or regulation" within the meaning of section
 7117(a)(1), as stated previously, the Office of Personnel Management
 (OPM) is required by regulation to establish standards and requirements
 with which agency promotion programs must conform.  See 6 CFR 335.103.
 The requirements regarding agency procedures for promoting employees are
 set forth in subchapter 1-4 of chapter 335 and constitute OPM's
 determination of the policies necessary to insure that agency promotion
 procedures are based on merit.  Thus, the Authority finds that FPM,
 chapter 335, subchapter 1-4, regarding merit promotion requirements, is
 a Government-wide rule or regulation within the meaning of section
 7117(a)(1) of the Statute, and would bar negotiation on a conflicting
 union proposal.  See National Federation of Federal Employees, Local
 1497 and Department of the Air Force, Lowry Air Force Base, Colo., 9
 FLRA No. 20 (1982).  Therefore, since portions of Sections 5K(1) and (3)
 of the proposal would require the Agency to allow credit for non
 job-related criteria, these portions are inconsistent with the merit
 promotion requirements of chapter 335 of the FPM and are outside the
 duty to bargain under section 7117(a)(1) of the Statute.
 
    As to the balance of the proposal, Sections 5K(4) and (5) and
 portions of (1) and (3) specifically provide for the evaluation of
 applicants in relation to the position being filled and thus would
 constitute job-related criteria.  Section 5K(2) does not state that the
 consideration of applicants' performance evaluations must be in terms of
 the applicant's ability to perform in the vacant position but there is
 nothing in the language of the proposal or the record indicating the
 Union intended otherwise.  Moreover, Requirement 3 of subchapter 1-4
 expressly provides that, "Due weight shall be given to performance
 appraisals and incentive awards;" thus, under FPM requirements, an
 agency's merit promotion procedures should provide for consideration of
 applicants' performance appraisals.  Therefore, the Authority finds that
 Sections 5K(2), (4), (5) and the job-related portions of Sections 5K(1)
 and (3) of the proposal are not inconsistent with the merit promotion
 requirements of subchapter 1-4 of chapter 335 of the FPM.
 
                                   ORDER
 
    Pursuant to section 2424.10 of the Authority's Rules and Regulations
 (5 CFR 2424.10 (1982)), IT IS ORDERED that the Union's petition for
 review relating to the non job-related portions of Sections 5K(1) and
 (3) of the proposal be, and it hereby is, dismissed.
 
    IT IS FURTHER ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain on all other portions of the
 proposal.  /5/ 
 
 Issued, Washington, D.C., February 3, 1983
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                                 APPENDIX
 
                              Union Proposal
 
 Article 7 Section 5
 
    K.  The Board will evaluate each applicant based upon each of these
 five (5) factors, assigning points for each factor based upon the
 following considerations:
 
          1) Experience:  (Not to exceed eight (8) points in total
       scores) - Experience will be carefully evaluated and credited in
       terms of its type, quality, recency and depth.  Using the
       following three quality levels, indicate the level to which the
       experience has prepared the candidate to perform the duties of the
       position being filled.
 
          Excellent (8 points):  Experience in your judgment most
       relevant for the position being evaluated;  i.e., experience in
       the same position, a trainee or understudy for more than one year,
       or a position next lower in the line of work to the position being
       evaluated that gives good knowledge with the skills and abilities
       required to perform the work of the position being filled.  (There
       would be little or no need for additional training to perform the
       duties of the position.)
 
          Good (6 points):  Experience in your judgment that is good for
       the position being filled;  i.e. a trainee or understudy with less
       than one year in the position next below in the same line of work
       as the position being evaluated;  positions similar to those
       required for the position being filled.  (A need for a limited
       amount of additional training would be indicated).
 
          Moderate (4 points):  Experience in your judgment that is
       acceptable and qualifying but provides only a general knowledge of
       skills, techniques and abilities which may be adopted to the job
       being filled;  stale experience more than five years old without
       intervening experience in the same line of work.  (A need for
       extensive training would be indicated).
 
          Unrelated (1-3 points).
 
          2) Supervisory Evaluations of Performance:  (Not to exceed 6
       points).  The overall performance evaluation will be evaluated to
       determine which of the following evaluation ratings are most
       indicated:
 
          Outstanding = 6 points
 
          Exceeds Expectations = 5 points
 
          Moderate = 4 points
 
          Weak = 1-3 points
 
          3) Education:  (Not to exceed 4 points).  Formalized study
       successfully completed in a school above high school level will be
       evaluated and rated in terms of the following:
 
          (Excellent) = 4 points
 
          (Good) = 3 points
 
          (Moderate) = 2 points
 
          (Limited) = 1 point
 
                                Job Related Non Job Related
 
          Masters Degree 4 3
 
          Bachelor Degree 3 2
 
          90 Semester Hours 2(18 1
 
          30-89 Semester Hours 1 0
 
          4) Awards:  (Not to exceed 4 points) - Evaluate in terms of
       relative importance to the requirements of the position being
       filled.  Consider the qualifications demonstrated or implied by
       the awards, such as initiative, resourcefulness, overall
       performance, etc.  The award indicated should be evaluated as
       indicated below:
 
          Quality Performance Increase (QPI) Award 4 points
 
          Outstanding Performance Rating 4 points
 
          Honor Award 4 points
 
          Sustained Superior Performance (SSP) Award 3 points
 
          Special Achievement Award 3 points
 
          Approved Suggestion 2 points
 
          5) Miscellaneous, including interviews, training, outside
       activities, etc.  (Not to exceed 3 points).  The factor allows
       credit for an applicant's additional activities which demonstrate
       his/her potential to perform in the vacant position.
 
          (Excellent) = 3 points
 
          (Good) = 2 points
 
          (Moderate) = 1 point
 
          (Limited) = 0 points
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ It is noted that the Union has filed numerous unfair labor
 practice charges concerning the Agency's refusal to disclose various
 crediting plans.  The Agency claims that the issues involved in those
 charges and in the instant case are the same and the Union must select,
 pursuant to section 2423.5 of the Authority's Rules and Regulations,
 whether to proceed first with the unfair labor practice charges or this
 negotiability case.  Since the issues involved in the unfair labor
 practice charges concern solely the Agency's failure to disclose the
 contents of crediting plans whereas this appeal concerns the
 negotiability of the contents of a crediting plan, it is clear that the
 issues involved are not the same and no selection is required.
 
 
    /2/ Union Reply Brief at 4.
 
 
    /3/ Section 7117(a)(1) provides:
 
    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 regula