14:0427(67)NG - AFGE Local 3477 and Consumer Product Safety Commission -- 1984 FLRAdec NG



[ v14 p427 ]
14:0427(67)NG
The decision of the Authority follows:


 14 FLRA No. 67
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3477
 Union
 
 and
 
 CONSUMER PRODUCT SAFETY
 COMMISSION
 Agency
 
                                            Case No. O-NG-587
 
                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
 relating to the negotiability of four Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          The purpose of this agreement is to provide the sole procedures
       for a Performance Appraisal System for bargaining unit employees
       in the New York Regional Office, CPSC.  It shall be consistent
       with applicable laws and government-wide regulations.
 
    The Agency contends that Union Proposal 1 is inconsistent with law
 and regulation in that while it purports to be the "sole procedures"
 governing performance appraisal for unit employees, the proposal
 nevertheless does not cover all matters required by 5 U.S.C. 4302 and 5
 CFR Part 430.  Specifically, the Agency argues that because the proposal
 does not cover such matters as appraisal of an employee on detail /1/ it
 cannot, consistent with law and regulation, replace the performance
 appraisal procedures established by the Agency so as to constitute the
 "sole procedures." Contrary to the Agency's argument, the language of
 the proposal itself specifically provides that the procedures
 established by the parties' agreement are to be interpreted in a manner
 consistent with law and regulation.  Moreover, the Union states in
 explaining the intent thereof, that the proposal is not meant to
 replace, but to supplement provisions of the Agency's procedures and the
 requirements of law and regulation.  Therefore, since the Agency does
 not allege any other grounds of nonnegotiability, nor are any apparent,
 Union Proposal 1 is within the Agency's duty to bargain under the
 Statute.
 
                             Union Proposal 2
 
          A critical element is a job element which is of such importance
       that if it is not performed adequately, acceptable performance of
       the job as a whole is not possible.
 
    The Agency contends that Union Proposal 2, which defines the term
 "critical element," is inconsistent with the definition of that term set
 forth in Office of Personnel Management regulations /2/ and is outside
 the duty to bargain.  However, in this regard, the proposal has the same
 effect as Union Proposal 3 in American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 3 FLRA 784 (1980).  In that case, the Authority held
 that the proposal at issue, which defined a critical element as "one
 which is so important that inadequate performance of it outweighs
 acceptable or better performance in other aspects of the job," was not
 inconsistent, i.e., "incompatible or irreconcilable," with the
 regulatory definition merely because it was silent with respect to
 remedial action.  Office of Personnel Management at 787.  Moreover, the
 Authority found that in all cases involving such remedial action, where
 the proposal was silent, the regulation would govern.  Similarly, with
 respect to the proposal in the instant case, the Union states that it
 "in no way precludes or prohibits . . . the actions required by the . .
 . regulation" from being taken.  Thus, for the reasons more fully set
 forth in the Office of Personnel Management decision, Union Proposal 2
 herein is not inconsistent with applicable regulation and, therefore, is
 within the Agency's duty to bargain.
 
                             Union Proposal 3
 
          Awards:  Performance appraisals will be the sole consideration
       in granting Quality Step Increases and sustained Superior
       Performance.
 
    The Agency contends that Union Proposal 3, by making performance
 appraisals the sole consideration, is inconsistent with law and
 regulation in that it thereby eliminates other statutory and regulatory
 requirements for granting quality step increases and awards for
 sustained superior performance, such as limitations as to eligibility
 /3/ and Office of Personnel Management approval of agency performance
 appraisal plans.  Contrary to the Agency, the requirement that
 performance appraisal be the sole consideration in granting such awards
 is not intended to preclude management from implementing other statutory
 and regulatory requirements.  Based on the Union's statements in the
 record, it appears that the proposal is intended to ensure, consistent
 with law and regulation, that quality step increases and awards for
 sustained superior performance will be based only on the results of
 performance appraisals obtained under a performance appraisal system
 established pursuant to 5 U.S.C. 4302.  /4/ Thus, nothing in the
 proposal would preclude management, for example, from determining that
 an employee who was qualified for a quality step increase was
 nevertheless not eligible in terms of other statutory or regulatory
 requirements.  The proposal is susceptible to this interpretation and
 the Authority specifically adopts it in r