16:0948(127)NG - AFGE Local 32 and OPM -- 1984 FLRAdec NG
[ v16 p948 ]
The decision of the Authority follows:
16 FLRA No. 127 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32 Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. O-NG-902 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 concerning the negotiability of three Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Each employee who is currently evaluated as outstanding on any performance element of the job which has a standard at this level shall have four years of service added to his or her creditable service for purposes of reduction-in-force. The proposal by its plain language would require that, for reduction-in-force retention purposes, credit for 4 additional years of service be given to an employee who had been rated "outstanding" in any performance element without regard to whether the employee's overall rating was "outstanding." Credit for additional service for reduction-in-force purposes is addressed by 5 CFR 351.504 (1984 Supp.). This regulation has been promulgated by the Office of Personnel Management (OPM) and applies generally to civilian employees of the Federal Government. /1/ It is a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 754 (1980). As relevant herein 5 CFR 351.504(c) (1984 Supp.) provides: (c) An agency that has implemented a performance appraisal system meeting all the requirements of 5 U.S.C. 4302, and Part 430 Subpart P (sic) of this title, is responsible for using employee performance appraisals to credit employees with additional service toward retention standing. This additional service is added to each employee's creditable service under this part. Each employee who has an "Outstanding" or highest appraisal under the agency's system, shall receive 4 additional years of service . . . Each agency is responsible for ensuring that these provisions are: (1) Consistent with Part 430 Subpart B of this title(.) Part 430, Subpart B, relates to the establishment of agency performance appraisal systems and was also promulgated by OPM. In providing guidance to agencies with respect to the implementation of the provisions of Part 430, Subpart B, OPM has noted that insofar as performance appraisals are relevant to decisions made with respect to reduction-in-force, such decisions are based solely on the summary appraisal of an individual employee's performance. /2/ Thus, the provision in 5 CFR 351.504(c) for crediting an employee who has received an outstanding appraisal with 4 years of additional service, interpreted consistent with the provisions of Part 430, Subpart B, applies to employees who have received an outstanding summary rating. In view of the fact that the proposal would require crediting of 4 years of additional service without regard to whether an employee, in fact, has a summary rating of outstanding, it conflicts with that Government-wide rule or regulation and, therefore, is not within the duty to bargain. /3/ IRS, New Orleans District, supra. Union Proposal 2 An employee who is satisfactory in all critical elements and who exceeds the standard for satisfactory in any element (thereby performing at better than the minimum for retention), shall be deemed to be performing at an acceptable level of competence for within grade increase purposes. Union Proposal 2 would establish the quality of job performance which would evidence an "acceptable level of competence" for purposes of granting within-grade salary increases. It is, thus, materially to 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), petition for enforcement filed, FLRA v. Office of Personnel Management, No. 84-1325 (D.C. Cir. July 18, 1984). In OPM, the Authority relying upon reasoning set forth in American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA No. 96 (1984) found that such a proposal interfered with the agency's rights under section 7106(a)(2) of the Statute to direct employees and assign work. In so finding the Authority noted that an essential aspect of management's exercise of these rights was to establish performance requirements for each overall level of performance. Because Union Proposal 2 herein would require negotiation over the quality of employee performance necessary to attain a positive acceptable level of competence rating and by extension the performance requirements for a "fully successful" overall performance rating, it is, for the reasons set forth in OPM and Department of Justice, not within the duty to bargain. /4/ Union Proposal 3 Performance standards as well as their application, must be fair and equitable. (Only the underlined portion is in dispute.) The authority has consistently found proposals which substantively restrict management in its establishment of performance standards to be outside the duty to bargain as interfering with management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981), (Union Proposals 1 and 2), aff'd sub nom. American Federation of Government Employees, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 103 S.Ct. 2085 (1983). The Authority has also found that a proposal which would have as its sole effect the subjecting of management's determination concerning the content of performance standards to the grievance procedure and arbitral review similarly constituted a substantive interference with management's rights. Saint Lawrence Seaway Development Corporation, 5 FLRA 70, (Union Proposal 4). However, in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C. 3 FLRA 784 (1980) (Union Proposal 5) the Authority specifically found that a proposed standard of fairness and equity concerned, in the facts of that case, only the application of performance standards to employees. Thus in that case, the Authority determined such a standard was a negotiable arrangement under section 7106(b)(3) whereby the application of performance standards established by management could subsequently be evaluated in a grievance by an employee who alleged to be adversely affected by the application of management's standards to that individual. In finding that proposal to be within the duty to bargain, the Authority specifically noted that such an arrangement did not affect management's discretion to determine the content of performance standards nor authorize an arbitrator to substitute his or her judgment for that of management as to the content of the standards. Union Proposal 3, herein, unlike Union Proposal 5 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980), is not limited to establishing a general nonquantitative requirement by which the application of performance standards established by agency management could subsequently be evaluated in a grievance. It is also specifically directed, by its language and the Union's stated intent, to restricting the content of the performance standards. As such it would, as a practical matter, provide the basis for arbitral review of the content of performance standards and would permit arbitrators to substitute their judgments as to the proper content of performance standards for that of the Agency. Thus Union Proposal 3 is materially to the same effect as Union Proposal 4 in Saint Lawrence Seaway Development Corporation, 5 FLRA 70. For the reasons expressed in Saint Lawrence Seaway Development Corporation, the Authority finds that Union Proposal 3 herein is likewise not within the duty to bargain. 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. Issued, Washington, D.C., December 18, 1984 /s/ HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman /s/ RONALD W. HAUGHTON Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 5 CFR 351.202 (1984 Supp.). /2/ FPM Chap. 430, subchap. 1-4d. /3/ In view of this disposition it is unnecessary to address the Agency's further contention as to the negotiability of this proposal. /4/ In view of this determination, it is unnecessary to address the Agency's other contention as to the negotiability of this proposal.