14:0006(2)NG - AFGE Local 32 and OPM, Washington, DC -- 1984 FLRAdec NG



[ v14 p6 ]
14:0006(2)NG
The decision of the Authority follows:


 14 FLRA No. 2
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-255
 
                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).  /1/ The issue presented is the negotiability of eight
 Union proposals.  In deciding that certain of those proposals or
 portions thereof are within the duty to bargain, the Authority makes no
 judgment as to their merits.
 
                             Union Proposal 1
 
          An employee who is involuntarily detailed will retain whatever
       flexible work schedule he or she has in his or her position of
       record.
 
                       Question Before the Authority
 
    The question presented is whether the Union's proposal is
 inconsistent with section 7106(a)(2) of the Statute and, therefore, not
 within the Agency's duty to bargain.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is not inconsistent with
 section 7106(a)(2) of the Statute.  /2/ 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 the proposal.
 
    Reasons:  The Agency contends that the proposal would prevent
 management from assigning an employee to a detail if such employee could
 not retain the flexible work schedule of his or her position of record.
 On its face, however, the proposal, which only would apply to "an
 employee who is involuntarily detailed," could not bar management's
 making the assignment.  Additionally, neither the language of the
 proposal nor the record as a whole indicates that the Union intends its
 proposal either to prevent management's assigning an employee to any
 tour of duty within the flexible work schedule when such assignment is
 necessary to accomplish the Agency's mission /3/ or to give employees
 the right to refuse to appear for work when ordered to do so.  /4/
 Accordingly, the Agency's claim that this proposal would be inconsistent
 with the Agency's right to detail employees under section 7106(a)(2) is
 not sustained.
 
                             Union Proposal 2
 
          Management shall provide adequate security to all employees.
 
                       Question Before the Authority
 
    The question presented is whether the Union's proposal is
 inconsistent with section 7106(a)(1) of the Statute because, as alleged
 by the Agency, it would directly interfere with the Agency's internal
 security practices.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is not inconsistent with
 section 7106(a)(1) of the Statute.  /5/ 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 the proposal.
 
    Reasons:  As used in the Statute, the term "internal security
 practices" includes those policies and actions which are part of the
 Agency's plan to secure or safeguard its physical property against
 internal or external risks, to prevent improper or unauthorized
 disclosure of information, or to prevent the disruption of the Agency's
 activities or operations.  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) at 16, reversed as to other matters sub
 nom. Department of Justice v. FLRA, No. 82-1622 (D.C. Cir. June 10,
 1983).
 
    On its face, this proposal does not concern matters related to the
 internal security practices of the Agency but, instead, to the health
 and safety of employees.  Even if "internal security" were construed to
 include the personal security of employees, the proposal would prescribe
 only the general standard of "adequate" personal security.  It would
 leave to the Agency's sole discretion decisions as to implementation of
 the contractual standard.  It is concluded that the proposal is not
 inconsistent with the Agency's right to determine its internal security
 practices and is within the duty to bargain.
 
                             Union Proposal 3
 
          Employees in other situations where non-competitive promotions
       are possible will be promoted upon the employee's certifying that
       he or she has met all the requirements for promotion.
 
                       Question Before the Authority
 
    The question presented is whether the Union's proposal is outside the
 duty to bargain because it is inconsistent with section 7106(a)(2)(C) of
 the Statute, as alleged by the Agency.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is inconsistent with
 section 7106(a)(2)(C) of the Statute.  /6/ Accordingly, pursuant to
 section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED
 that the petition for review of the Union's proposal be, and it hereby
 is, dismissed.
 
    Reasons:  The Union's intended meaning of its proposal is as follows:
 
          The union proposal applies only to non-competitive promotions
       which can, as is the case with career ladder promotions, be tied
       to the employee meeting specific requirements for promotions.  In
       those cases, if the proposal is adopted, the crucial management
       decision comes when the employee is assigned to a position
       providing for promotion upon meeting certain criteria;  subsequent
       promotion, upon those criteria being met, becomes merely a
       ministerial act.  /7/
 
    This explanation is contrary to the explicit language of the proposal
 which is not limited to career-ladder circumstances /8/ but, instead,
 would mandate noncompetitive promotions "where (such) promotions are
 possible." Thus, on its face, the proposal would not be limited to
 situations involving a "ministerial act" as claimed by the Union.  See
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 8 FLRA No. 97(1982)
 (Proposal III).  Rather, the proposal necessarily would extend to
 situations involving the Agency's exercising discretion pursuant to its
 management right to make selections to fill positions from any
 appropriate source under section 7106(a)(2)(C) of the Statute.
 Accordingly, the proposal is inconsistent with section 7106(a)(2)(C) and
 is outside the duty to bargain.
 
                             Union Proposal 4
 
          Statements of critical elements and the standards for
       satisfactory performance of the critical elements will be
       developed by the parties and provided employees within 30 days of
       the effective date of this contract.
 
                       Question Before the Authority
 
    The question presented is whether, as alleged by the Agency, the
 Union's proposal is outside the duty to bargain because it is
 inconsistent with section 7106(a)(2)(A) and (B) of the Statute.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is inconsistent with
 section 7106(a)(2)(A) and (B) of the Statute.  Accordingly, pursuant to
 section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED
 that the petition for review of the disputed proposal be, and it hereby
 is, dismissed.
 
    Reasons:  The record demonstrates the proposal would require
 collective bargaining over the identification of critical elements and
 the establishment of performance standards for, inter alia, job
 retention for positions and employees in the bargaining unit.
 Consequently, the proposal is substantively identical in effect to the
 proposal which was before the Authority in National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 769(1980), affirmed sub nom.  National Treasury Employees Union v.
 Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982).  In
 that decision, the Authority held that a proposal which would have
 established a particular critical element and related performance
 standard for job retention was inconsistent with management's rights to
 direct employees and to assign work under section 7106(a)(2)(A) and (B)
 of the Statute and, therefore, was outside the duty to bargain.
 Accordingly, for the reasons fully set forth in Bureau of the Public
 Debt, the proposal here also is outside the duty to bargain.
 
                             Union Proposal 5
 
          Performance in all elements will be rated only as
       unsatisfactory or highly satisfactory.
 
                       Question Before the Authority
 
    The question presented is whether the Union's proposal is
 inconsistent with the rights to direct employees in the agency or to
 assign work under, respectively, section 7106(a)(2)(A) and (B) of the
 Statute.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is inconsistent with
 section 7106(a)(2)(A) and (B) of the Statute.  Accordingly, pursuant to
 section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED
 that the Union's petition for review be, and it hereby is, dismissed.
 
    Reasons:  The Union's proposal would establish the number of rating
 levels for appraising an employee's performance in all job elements.  As
 such, it is substantively identical in effect to a portion of the
 proposal which was held nonnegotiable by the Authority in American
 Federation of State, County and Municipal Employees, AFL-CIO, Council 26
 and U.S. Department of Justice, 13 FLRA No. 96(1984).  In that case, the
 Authority ruled that a proposal which would have established the number
 of rating levels for appraising employees' performance in all job
 elements was inconsistent with management's rights to direct employees
 and assign work under section 7106(a)(2)(A) and (B) of the Statute.
 Accordingly, for the reasons fully stated in Department of Justice,
 supra, Union Proposal 5 is outside the duty to bargain.
 
                             Union Proposal 6
 
          An employee will receive a within grade increase at the time
       intervals established by law, if his or her performance is at an
       acceptable level of competence.  Performance is at an acceptable
       level of competence if each critical element is at least
       satisfactory and if in fact the performance of one or more
       elements exceeds the minimum standard for satisfactory.
 
                       Question Before the Authority
 
    The question presented is whether, as alleged by the Agency, the
 Union's proposal is inconsistent with the rights to direct employees in
 the agency or to assign work under, respectively, section 7106(a)(2)(A)
 and (B) of the Statute.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is inconsistent with
 section 7106(a)(2)(A) and (B) of the Statute.  Accordingly, pursuant to
 section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED
 that the petition for review be, and it hereby is, dismissed.
 
    Reasons:  Union Proposal 6 would establish the quality of job
 performance which would evidence an "acceptable level of competence" so
 as to qualify an employee for a within-grade salary increase.  That is,
 the proposal would have the effect of requiring bargaining over the
 quality of performance required to achieve a particular overall rating
 (i.e., fully successful or its equivalent) in the Agency's performance
 appraisal system.  For the following reasons, it is not within the duty
 to bargain.
 
    5 U.S.C. 5335(a) provides that an employee in the General Schedule
 shall be advanced to the next higher within-grade rate at certain
 intervals provided, inter alia, the work of the employee is of an
 acceptable level of competence, as determined by the head of the agency.
  Such determinations must be based upon an employee's performance
 appraisal under an agency's appraisal system established pursuant to
 chapter 43 of title 5, U.S. Code.  That is, in section 4302(a)(3),
 Congress manifested its intention to create a unified system in which
 performance appraisals would be the basis for all personnel actions for
 "rewarding . . . employees." /9/ This intention is articulated in the
 Senate report on the Civil Service Reform Act of 1978 which states that
 the Act "requires that performance evaluation be used as a basis for all
 decisions about rewarding . . . Federal employees." /10/ Furthermore,
 implementing Government-wide regulations /11/ promulgated by the Office
 of Personnel Management provide that the phrase "acceptable level of
 competence" means performance which is "fully acceptable" (or the
 equivalent such as "fully satisfactory" or "fully successful" as used in
 an agency's performance plan).  5 CFR 531.403(1982).  Thus, under
 applicable statutory provisions, the quality of an employee's
 performance which is an acceptable level of competence for salary
 purposes is the same as that which is necessary to attain an overall
 rating of fully successful under an agency's performance appraisal plan.
  Meyer v. Department of Health and Human Services, Social Security
 Administration, 666 F.2d 540 (Ct. Cl. 1981);  see also Parker v. Defense
 Logistics Agency, 1 MSPB 489, 501-04(1980).  /12/ It follows that a
 proposal such as Union Proposal 6, requiring negotiation of the former,
 would be tantamount to a proposal requiring negotiation of the latter.
 
    In Department of Justice, supra, the Authority determined that an
 essential aspect of management's assignment of work and the supervision
 and guidance of employees with respect to various rewards, including
 within-grade increases, is to establish performance requirements for
 each overall level of performance.  Thus, the Authority held that a
 proposal to establish such requirements was inconsistent with the rights
 to direct employees and assign work under section 7106(a)(2)(A) and (B).
  Since Union Proposal 6, herein, which would require negotiations over
 the quality of employee performance necessary to attain a positive
 acceptable level of competence rating, is linked by regulation to, and
 thereby would be determinative of, the performance requirement for a
 fully successful overall performance rating, it is, for the reasons set
 forth in Department of Justice, not within the duty to bargain.  /13/
 
                             Union Proposal 7
 
          Failure of a supervisor to provide a timely notice as required
       above shall constitute proof that as of the deadline the
       supervisor believed the employee to be performing at an acceptable
       level of competence, unless management can prove that the
       supervisor was a mental incompetent or was committing an act of
       deliberate insubordination.
 
                       Question Before the Authority
 
    The question presented is whether, as alleged by the Agency, the
 Union's proposal is inconsistent with 5 U.S.C. 5335(a)(B) or 5 Cfr, part
 531, subpart D.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is not inconsistent with
 5 U.S.C. 5335(a)(B) or 5 CFR, Part 531, subpart D.  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 the proposal.
 
    Reasons:  The Agency characterizes the proposal as requiring an
 automatic determination that an employee is entitled to a within-grade
 increase if a supervisor fails to timely inform an employee that he or
 she is not performing at an acceptable level of competence.  On its face
 and as explained by the Union, however, the sole effect of the proposal
 would be to create a rebuttable presumption regarding the supervisor's
 belief as to the level of the employee's performance during the waiting
 period.  Since the Agency would be free to determine the actual level of
 the employee's performance from any other source, notwithstanding the
 presumed belief of the supervisor, the proposal would not interfere with
 the Agency's making an acceptable level of competence determination
 under 5 U.S.C. 5335(a) or 5 CFR, Part 531, subpart D.  Accordingly, the
 proposal is within the duty to bargain.
 
                             Union Proposal 8
 
          If, notwithstanding management's innocent or culpable failure
       to provide a timely written notice of alleged deficiencies,
       management believes on or before the date the waiting period ends
       that the employee is not performing at an acceptable level of
       competence, a written notice to this effect, as in section 18,
       above, will be given.  This statement will note that a decision on
       providing the within-grade will be made upon expiration of a
       sixty-day period, and that if the decision is positive, the
       within-grade will be effective retroactive to the end of the
       statutory waiting period.  (Only the underscored portions of the
       proposal are disputed.)
 
                       Question Before the Authority
 
    The question presented is whether, as alleged by the Agency, the
 underscored portions of the proposal are inconsistent with 5 CFR
 531.412.
 
                                  Opinion
 
    Conclusion and Order:  The first portion of the proposal which
 concerns making an acceptable level of competence determination after
 sixty days (determination clause) is not inconsistent with 5 CFR
 531.412, and is within the duty to bargain.  The portion which would
 require retroactive within-grade pay increases (retroactivity clause) is
 inconsistent with 5 CFR 531.412, a Government-wide regulation, and is
 outside the duty to bargain.  Accordingly, IT IS ORDERED that the Agency
 shall upon request (or as otherwise agreed to by the parties) bargain
 concerning the determination clause of the proposal;  IT IS FURTHER
 ORDERED that the petition for review as to the retroactivity clause of
 the proposal be, and it hereby is, dismissed.
 
    Reasons:  The Agency states that if the determination clause would
 require the Agency to delay making an acceptable level of competence
 determination until the end of a 60-day notice period, it is
 inconsistent with 5 CFR 531.412.  /14/ If, on the other hand, the clause
 would require the Agency to make an additional acceptable level of
 competence determination 60 days later, the Agency concedes that it
 would not prevent management from making a determination at the end of a
 waiting period as required by regulation.  /15/ The Union explicitly
 states that the proposal is intended only to require an additional
 determination in the event that the requisite notice is not given, not
 to preclude the Agency from making a determination at the end of a
 waiting period.  /16/ This interpretation is consistent with the
 language of the proposal and is adopted for the purposes of this
 decision.  So interpreted, the determination clause would not be
 inconsistent with applicable regulations and is within the duty to
 bargain.
 
    Turning to the retroactivity clause of the proposal, it would require
 that where, after an initial negative acceptable level of competence
 determination, a subsequent determination is positive, the within-grade
 increase be paid retroactively to the end of the employee's waiting
 period.  Under 5 CFR 531.412(a), a retroactive payment is permissible
 only when, due to administrative error, oversight, or delay, a positive
 determination is made after the waiting period is completed.  However, 5
 CFR 531.412(b) expressly states that when an acceptable level of
 competence is achieved at some time after a negative determination, the
 effective date of the pay increase is the first day of the first pay
 period after the acceptable determination has been made.  Since the
 retroactivity clause of Union Proposal 8 is not limited to the
 circumstances enumerated in section 531.412(a) but, instead, would
 mandate retroactivity in all cases, including instances when an
 acceptable level is achieved after a negative determination, that
 portion of the proposal is inconsistent with 5 CFR 531.412(b).
 
    Having determined that the retroactivity clause is inconsistent with
 5 CFR 531.412(b), the question becomes whether the provision is a
 Government-wide rule or regulation within the meaning of section 7117(a)
 of the Statute, which will bar negotiation of inconsistent proposals.
 The provision is codified at title 5 of the Code of Federal Regulations
 by the Office of Personnel Management.  By its terms, the regulation
 applies, generally, to employees classified and paid under the General
 Schedule.  As such, the regulation is generally applicable in most
 segments of the executive branch of the Federal Government.  Therefore,
 5 CFR 531.412(b) is a Government-wide rule or regulation within the
 meaning of the Statute.  National Treasury Employees Union, Chapter 6
 and Internal Revenue Service, New Orleans District, 3 FLRA 754(1980).
 Consequently, the retroactivity clause is outside the duty to bargain.
 
    Issued, Washington, D.C., February 6, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Without passing upon the Union's contentions regarding the
 procedural sufficiency of the Agency's motion to dismiss the petition,
 the Authority denies the motion on its merits.  The Authority finds,
 contrary to the Agency's contentions, that the question of whether the
 proposals addressed herein are subject to bargaining has not been
 rendered moot.  Cf. Federal Employees Metal Trades Council, AFL-CIO and
 Department of the Navy, Mare Island Naval Shipyard, 7 FLRA 701(1982)
 wherein the Authority found that inasmuch as the parties had reached
 agreement on the matter which was the subject of the appeal involved,
 the case had been rendered moot.
 
 
    /2/ Section 7106(a)(2) provides:
 
    Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
                                  * * * *
 
          (2) in accordance with applicable laws--
 
          (A) to hire, assign, direct, layoff, and retain employees in
       the agency, or to suspend, remove, reduce in grade or pay, or take
       other disciplinary action against such employees;
 
          (B) to assign work, to make determinations with respect to
       contracting out, and to determine the personnel by which agency
       operations shall be conducted;
 
          (C) with respect to filling positions, to make selections for
       appointments from--
 
          (i) among properly ranked and certified candidates for
       promotion;  or
 
          (ii) any other appropriate source;  and
 
          (D) to take whatever actions may be necessary to carry out the
       agency mission during emergencies.
 
 
    /3/ Effective July 23, 1982, during the pendency of this case, the
 Federal Employees Flexible and Compressed Work Schedules Act of 1982,
 Pub. L. No. 97-222, 96 Stat. 227 added a new subchapter II to chapter 61
 of title 5, U.S. Code.  Of course, Union Proposal 1, if agreed upon,
 would have to be administered in conformity with the requirements of
 that Act.
 
 
    /4/ See American Federation of Government Employees, AFL-CIO, Local
 2875 and Department of Commerce, National Oceanic and Atmospheric
 Administration, National Marine Fisheries Service, Southeast Fisheries
 Center, Miami Laboratory, Florida, 5 FLRA 441(1981) (Union Proposals 1,
 2 and 3).
 
 
    /5/ Section 7106(a)(1) provides in pertinent part as follows:
 
    Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
          (1) to determine the . . . internal security practices of the
       agency(.)
 
 
    /6/ In view of the decision herein, the Authority finds it
 unnecessary to consider the other contentions of the Agency with respect
 to the negotiability of the proposal.
 
 
    /7/ Union Reply Brief at 12-13.
 
 
    /8/ The Agency concedes that it would not contest the negotiability
 of the proposal if it applied only to career-ladder promotions.
 
 
    /9/ Section 4302(a)(3) provides:
 
    Sec. 4302.  Establishment of performance appraisal systems
 
          (a) Each agency shall develop one or more performance appraisal
       systems which--
 
                                  * * * *
 
          (3) use the results of performance appraisals as a basis for
       training, rewarding, reassigning, promoting, reducing in grade,
       retaining, and removing employees(.)
 
 
    /10/ S.Rep. No. 95-969, 95th Cong., 2d. Sess. 10 (1978).
 
 
    /11/ See discussion of 5 CFR 531.412 in connection with Union
 Proposal 8, infra.
 
 
    /12/ But see Schramm v. Department of Health and Human Services, 682
 F.2d 85 (3rd Cir. 1982) (denial of within-grade step increase does not
 constitute action based upon unacceptable performance within the meaning
 of 5 U.S.C. 4303).
 
 
    /13/ In v