12:0643(128)NG - AFSCME Local 2027 and ACTION, Washington, DC -- 1983 FLRAdec NG



[ v12 p643 ]
12:0643(128)NG
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
 inconsi