14:0283(53)NG - NFFE Local 29 and Army, Kansas City District, Corps of Engineers -- 1984 FLRAdec NG



[ v14 p283 ]
14:0283(53)NG
The decision of the Authority follows:


 14 FLRA No. 53
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 29
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 KANSAS CITY DISTRICT,
 CORPS OF ENGINEERS
 Agency
 
                                            Case No. O-NG-474
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of four Union proposals.  /1/ Upon careful
 consideration of the entire record, including the contentions of the
 parties, the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Section 2.b
 
          Major Job Element means a component of an employee's job that
       is not of sufficient importance in itself that performance below
       the minimal level requires removing, demoting or withholding a
       within-grade increase of the employee.  Appraisals of Major Job
       Elements may be used as a basis for other personnel decisions
       which include recognizing and rewarding employees whose
       performance so warrants, and as a basis for determining training
       needs.  (Only the underlined portion of the proposal is in
       dispute.)
 
    Under Union Proposal 1 management could deny a within-grade increase
 to an employee only if the employee performed "below the minimal level"
 in a "critical," as opposed to a "major," element.  In this regard,
 applicable Army regulations define a "major element" as a major duty or
 responsibility of a position;  and such elements could include both
 critical and noncritical elements.  /2/
 
    Under applicable Government-wide regulations the granting of a
 within-grade increase must be based on an overall employee performance
 rating of fully acceptable (fully satisfactory or fully successful) as
 established in the agency's performance appraisal system.  /3/
 Understood in terms of this regulatory requirement, therefore, and
 consistent with the Union's stated intent, /4/ Union Proposal 1 would
 preclude management from establishing, as a criterion for fully
 acceptable overall performance, a level of performance which would
 include assessment of performance in a noncritical "major" element.
 Conversely, the proposal would require management to establish as a
 criterion for the granting of a within-grade increase a standard of
 overall performance which would encompass even minimally satisfactory
 performance in one or all major job elements.
 
    In thus prescribing the level of performance which would evidence an
 "acceptable level of competence," i.e., performance which would merit an
 overall rating of fully acceptable, so as to qualify an employee for a
 within-grade increase, Union Proposal 1 has the same effect as Union
 Proposal 6 in American Federation of Government Employees, AFL-CIO,
 Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA
 No. 2 (1984), which established the quality of performance necessary to
 attain a positive acceptable level of competence rating.  In that case,
 the Authority held, relying on its decision in American Federation of
 State, County and Municipal Employees, AFL-CIO, Council 26 and U.S.
 Department of Justice, 13 FLRA No. 96 (1984), that by establishing the
 performance requirements for a given level of performance, i.e., the
 granting of a within-grade increase, the proposal at issue directly
 interfered with management's rights to direct employees and assign work
 under section 7106(a)(2)(A) and (B) of the Statute.  /5/ Thus, for the
 reasons more fully set forth in the Department of Justice and Office of
 Personnel Management decisions, Union Proposal 1 herein, which likewise
 establishes the level of performance required to receive a within-grade
 increase, directly interferes with management's rights to direct
 employees and assign work and is outside the duty to bargain.  /6/
 
                             Union Proposal 2
 
          Section 2.c
 
          Performance Standards is the description of the level of
       accomplishment or achievement for performance of the duties and
       responsibilities of a position or group of positions;  expressed
       as a range of performance in terms such as:  quality, quantity,
       timeliness, etc.  As required by this contract, performance
       standards for each critical element will be established for five
       levels of performance, e.g., exceptional, highly successful, fully
       successful, marginal, and unsatisfactory.  (Only the underlined
       portion of the proposal is in dispute.)
 
                             Union Proposal 3
 
          Section 2.e
 
          The following definitions shall apply to the summary or overall
       performance appraisal rating:
 
          (1) Exceptional.  Performance that meets the performance
       standard for exceptional performance in one or more critical
       elements and at least meets the performance standards for fully
       successful performance for all other critical elements.
 
          (2) Highly successful.  Performance that meets the performance
       standard for highly successful performance in one or more critical
       elements and meets the performance standard for fully successful
       performance for all other critical elements.
 
          (3) Fully successful.  Performance that meets the performance
       standard for fully successful performance for all critical
       elements.
 
          (4) Marginal.  Performance below the performance standard for
       fully successful performance for one or more critical elements,
       but at least meets the performance standard for marginal
       performance for all critical elements.
 
          (5) Unsatisfactory.  Performance that fails to meet at least
       the performance standard for marginal performance in one or more
       critical elements.
 
    Union Proposal 2 requires the Agency to establish five rating levels
 for each critical element.  Union Proposal 3 establishes five rating
 levels for appraising an employee's overall performance and sets forth
 criteria for determining the quality of performance necessary to achieve
 a given overall rating.  In this regard, Union Proposals 2 and 3 have
 the same effect as the proposal at issue in American Federation of
 State, County and Municipal Employees, AFL-CIO, Council 26 and U.S.
 Department of Justice, 13 FLRA No. 96 (1984), which prescribed the
 number of rating levels to be used for each critical element and for
 overall evaluations, and the level of performance which would warrant a
 given overall rating.  In that case, the Authority held that the
 determination of the number of performance levels for both individual
 job elements and overall performance and the establishment of criteria
 for assessing the overall level of performance of an employee were
 essential aspects of management's rights to direct employees and assign
 work under section 7106(a)(2)(A) and (B) of the Statute.  Thus, for the
 reasons more fully set forth in the Department of Justice decision,
 Union Proposals 2 and 3 are outside the duty to bargain under the
 Statute.  /7/
 
                             Union Proposal 4
 
          Section 6.a
 
          When an employee's performance in one or more critical elements
       fails to meet the established performance standard for fully
       successful, but meets the established standards for marginal
       performance, the supervisor will utilize the procedures in Section
       7. of this Article.  If after fulfilling the requirement of
       Section 7., the employee's performance remains marginal, the
       supervisor may take action to withhold the employee's within-grade
       increase.
 
    The Agency alleges only that an Army regulation, AR 690-400, chap.
 430, bars negotiation on Union Proposal 4.  Under section 7117(a)(2) of
 the Statute and subpart B of Part 2424 of the Authority's Rules and
 Regulations, an agency regulation can bar negotiations on a conflicting
 union proposal only if a compelling need exists for such regulation.
 The agency bears the burden of coming forward with affirmative support
 for its assertion that the regulation relied on bars negotiations
 because there is a compelling need under the Authority's criteria.
 American Federation of Government Employees, AFL-CIO, Local 1928 and
 Department of the Navy, Naval Air Development Center, Warminster,
 Pennsylvania, 2 FLRA 450, 454 (1980).  In the instant case, while the
 Agency identifies the provisions of its internal regulations with which
 the Union's proposal allegedly conflicts, it does not cite any of the
 Authority's compelling need criteria nor adduce any evidence to support
 a conclusion that those regulations meet the requirements of any of the
 criteria.  /8/ Thus, the Agency has failed to support its allegation
 that a compelling need exists for the regulations upon which it relies
 to bar negotiation of Union Proposal 4.  Moreover, the Agency has not
 alleged that Union Proposal 4 is in any other manner inconsistent with
 applicable law, rule or regulation.  Therefore, Union Proposal 4 is
 within the Agency's duty to bargain under the Statute.
 
    Accordingly, for the foregoing reasons, pursuant to section 2424.10
 of the Authority's Rules and Regulations, IT IS ORDERED that the
 petition for review as to Union Proposals 1, 2, and 3 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 Union Proposal 4.
 /9/ 
 
 Issued, Washington, D.C., April 20, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its Statement of Position in response to the Union's appeal,
 the Agency contends for the first time that two additional Union
 proposals, Section 1 and Section 10, are outside the duty to bargain.
 These proposals were not appealed by the Union and, therefore, they are
 not before the Authority at this time.  See section 7117(c)(3) of the
 Statute and section 2424.1 of the Authority's Rules and Regulations.
 
 
    /2/ Army Regulation AR 690-400, chap. 430, subchap. 1, para. 1-3
 provides, in part:
 
          e.  Major element.  A major duty or responsibility of an
       employee's position;  a major result or output expected from the
       employee.  A major element becomes a critical element when it is
       important enough to meet the definition of critical element . . .
       (.)
 
    See also Army Regulation AR 690-400, chap. 430, subchap. 2, para. 2-2
 and 3;  subchap. 3, para. 3-2.b.
 
 
    /3/ 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, among other things, the work of the employee
 is of an "acceptable level of competence." "Acceptable level of
 competence" is defined in 5 CFR 531.403 as follows:
 
          Sec. 531.403 Definitions.
 
          In this subchapter:
 
          "Acceptable level of competence" means a level of performance
       identified by an employing agency at which performance by an
       employee of the duties and responsibilities of his or her assigned
       position is fully acceptable (or equivalent terms such as fully
       satisfactory or fully successful used in the agency's performance
       appraisal plan) and, in addition to the requirement of Sec.
       531.404 of this subpart, warrants advancement of the employee's
       rate of basic pay to the next higher step of the grade of his or
       her position.  An employee whose current performance with respect
       to any critical element is unacceptable, as defined in Sec.
       430.101(a)(3) of this chapter, is not performing at an acceptable
       level