12:0643(128)NG - AFSCME Local 2027 and ACTION, Washington, DC -- 1983 FLRAdec NG
[ v12 p643 ]
The decision of the Authority follows:
12 FLRA No. 128 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 2027 Union and ACTION, WASHINGTON, D.C. Agency Case No. O-NG-339 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). The issues presented in the appeal concern the negotiability of three Union proposals. Preliminary Matters The Agency's contention that the Union's petition for review should be dismissed as untimely filed cannot be sustained. Insofar as appears from the record, the Union filed its appeal within the appropriate time period after service upon it of the Agency's written allegation of nonnegotiability prescribed by section 2424.3 of the Authority's Rules and Regulations. See American Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA No. 58 (1981). Likewise, the Union's contention that the Agency's statement of position was untimely filed and should not be considered cannot be sustained. It is well established that the time for filing a statement of position begins to run from the date of receipt by the agency head of a copy of the completed union appeal. Cf. National Treasury Employees Union, Chapter 66 and Department of the Treasury, Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 2 FLRA 319 (1979) (where union failed to complete its appeal, it was premature for the agency to file a statement of position). The record in the present case is that the Agency did file its statement of position within the prescribed time period after receipt of the completed appeal, i.e., after the Union complied with section 2424.5 of the Authority's Rules and Regulations. Accordingly, the Union's motion for "default judgment" based on alleged untimeliness is denied. Finally, the Union's election pursuant to section 2424.5 of the Rules and Regulations to proceed first under the negotiability appeal procedure instead of the unfair labor practice procedure applicable in connection with a related ULP charge has rendered moot the Agency's motion to stay proceedings in this case pending such election. Union Proposal 1 Section. Each employee has a right to union representation (in) all meetings with management involving classification matters, including desk audits. Question Before the Authority The question presented is whether Proposal 1, as alleged by the Agency, concerns matters related to the classification of a position which are excluded from the definition of "conditions of employment" by section 7103(a)(14)(B) of the Statute. Opinion Conclusion and Order: Union Proposal 1 is not excluded by section 7103(a)(14)(B) from the definition of "conditions of employment." /1/ 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 Union Proposal 1. /2/ Reasons: Contrary to the Agency's allegation, the proposal does not concern any matters related to the classification of a position. That is, it does not concern the specific duties or any other matter to be taken into account in classifying a position. Rather, consistent with the language of the proposal, the Union explains its intent that the proposal provide "a procedure ancillary to (the Union's) right and obligation to assist employees in pursuing classification grievances within the scope of the grievance procedure." Thus, on its face, the proposal merely provides for an employee's right to union representation in meetings with management involving classification matters but does not address the substance of such meetings. Such representation is not a matter relating to the classification of any position and hence is not excluded from the definition of "conditions of employment" by section 7103(a)(14)(B). Therefore, the proposal is within the duty to bargain. 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) (Proposal 5), reversed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 82-1622 (D.C. Cir. June 10, 1983). Union Proposal 2 Section 4. An employee will be deemed to be performing at an acceptable level of competence for purposes of periodic within grade increases if the performance in at least one element exceeded the minimum standard for satisfactory. Question Before the Authority The question presented is whether Proposal 2 is, as alleged by the Agency, inconsistent with a Government-wide regulation and, therefore, outside the duty to bargain. Opinion Conclusion and Order: Union Proposal 2 is inconsistent with a Government-wide regulation, i.e., 5 CFR 430.202(e). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to this proposal be, and it hereby is, dismissed. Reasons: The Union contends that to obtain a within-grade increase under this proposal an employee's performance would have to be at least satisfactory in all elements of the job, including critical elements, and would have to exceed the satisfactory level in at least one element. The Authority does not adopt this interpretation because it is contrary to the explicit language of the proposal which would require that an employee whose performance exceeds the minimum standard for satisfactory in at least one element "will be deemed" to have performed acceptably, without regard to performance in any other job element. /3/ Based on this literal interpretation of the proposal, the Agency contends that the proposal is inconsistent with regulations implementing 5 U.S.C. 4301(3), set forth at 5 CFR 430.202(e), /4/ which require the denial of a within-grade increase when an employee's performance of any critical job element falls below a minimum standard. Acceptable level of competence determinations are actions based upon an agency's performance appraisal system established under chapter 43 of title 5 of the U.S. Code. /5/ Parker v. Defense Logistics Agency, 1 MSPB 489, 501-04 (1980). "Unacceptable performance" is defined by 5 U.S.C. 4301(3) to be performance which fails to meet established performance standards in one or more critical elements of an employee's position. Pursuant to its authority at 5 U.S.C. 4305, the Office of Personnel Management, which filed an amicus curiae brief herein, promulgated 5 CFR 430.202(e) which provides that performance which is below a minimum standard in any critical element requires remedial action and the denial of a within-grade increase without regard to performance on other components of the job. The proposal, on its face, is inconsistent with this regulation which is generally applicable to agencies and employees in the Federal civilian work force as a whole, though not, of course, to every Federal employee. See 5 CFR 430.201(a) and (b); 5 U.S.C. 4301(1) and (2). Thus, this regulation constitutes a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. /6/ National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980). Since the proposal is inconsistent with a Government-wide regulation, it is outside the duty to bargain. /7/ Union Proposal 3 Section. If there are not more than three qualified in-house applicants, applicants from outside the Agency may be solicited and considered. For the purpose of this section, persons who are members of groups underrepresented at the grade and location of the vacancy will be considered in-house applicants. The Agency will actively solicit applicants from these groups at the time the in-house posting occurs. Question Before the Authority The question presented is whether, as alleged by the Agency, Union Proposal 3 is inconsistent with section 7106(a)(2)(C) of the Statute. /8/ Opinion Conclusion and Order: Union Proposal 3 is inconsistent with section 7106(a)(2)(C). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to this proposal be, and it hereby is, dismissed. Reasons: Section 7106(a)(2)(C) of the Statute reserves to management the right to make selections for appointments from among properly ranked and certified candidates for promotion or from any other appropriate source. Thus, the Authority has held that a proposal which limited the consideration of outside applicants to instances in which there were fewer than three minimally qualified in-house applicants was inconsistent with section 7106(a)(2)(C) since management would be prevented from expanding the area of consideration or from selecting a candidate from any other appropriate source. National Federation of Federal Employees, Local 1451 and Navy Exchange, Naval Administrative Command, Orlando, Florida, 3 FLRA 392 (1980). The proposal in dispute herein would prevent the Agency from soliciting and considering outside applicants for positions when there are more than three qualified "in-house applicants." As such, the proposal is not materially different from the proposal which was before the Authority in the cited case and which was held to be outside the duty to bargain under the Statute. Therefore, for the reasons set forth in Naval Administrative Command, Orlando, Union Proposal 3 must be held to be outside the duty to bargain. Cf. Association of Civilian Technicians, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA 77 (1980) (proposal which requires only that consideration be given to unit employees but which does not prevent management from expanding the area of consideration is within the duty to bargain). Issued, Washington, D.C., August 25, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7103(a)(14)(B) provides: Sec. 7103. Definitions; application (a) For the purpose of this chapter-- . . . . (14) "conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters-- . . . . (B) relating to the classification of any position(.) /2/ In deciding that Union Proposal 1 is within the duty to bargain, the Authority makes no judgment as to its merits. /3/ See American Federation of Government Employees, AFL-CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA No. 86 (1981). /4/ 5 CFR 430.202(e) provides as follows: Sec. 430.202 Definitions. In this part, terms are defined as follows-- . . . . (e) "Critical element" means a component of an employee's job that is of sufficient importance that performance below the minimum standard established by management requires remedial action and denial of a within-grade increase, and may be the basis for removing or reducing the grade level of that employee.