17:0832(112)NG - AFGE Local 1980 and Agriculture, Farmers Home Administration -- 1985 FLRAdec NG



[ v17 p832 ]
17:0832(112)NG
The decision of the Authority follows:


 17 FLRA No. 112
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1980, AFL-CIO
 Union 
 
 and 
 
 U.S. DEPARTMENT OF 
 AGRICULTURE, FARMERS 
 HOME ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-724
 
                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 presents issues
 concerning the negotiability of the following Union proposal:
 
          When undergoing a major reduction-in-force, the State Director
       will request the National Office of Farmers Home Administration to
       request early retirement authorization from the Office of
       Personnel Management, in accordance with Public Law 95-454,
       Section 306.  Performance appraisals of employees in the
       reduction-in-force competitive area will have their appraisals
       frozen when a decision is made to implement a reduction-in-force.
       (Only the underlined portion of the proposal is in dispute.)
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 The proposal, on its face, would require the Agency to freeze bargaining
 unit employees' performance appraisals at the time a decision is made to
 implement a reduction-in-force (RIF).  The Agency has refused to bargain
 over the disputed proposal contending that the proposal is inconsistent
 with the Federal Personnel Manual (FPM), chapter 351, subchapter
 2-6a(1), a Government-wide regulation, and, thus, is outside the duty to
 bargain.  /1/ The Union in essence argues that the proposal is not
 inconsistent with the FPM since the proposal is not incompatible or
 irreconcilable with that regulation, but, instead, is negotiable as a
 procedure management will observe in the exercise of its right to
 implement a RIF.
 
    In agreement with the Agency, the Authority finds that the disputed
 proposal herein is inconsistent with chapter 351, subchapter 2-6a(1) of
 the FPM and, thus, is outside the duty to bargain under section
 7117(a)(1) of the Statute.  /2/ The cited provision of the FPM provides
 that an employee's current official performance appraisal on the date of
 issuance of a specific reduction-in-force notice is the appraisal that
 determines his or her retention standing in the event that a RIF occurs.
  The Union's proposal, however, would require the Agency, in effect, to
 consider for retention purposes the official performance appraisal of an
 employee on record on the date on which the decision is made to
 institute a RIF.  It does not appear that in all circumstances,
 especially where a significant number of employees are involved, an
 agency's decision to implement a RIF and specific notice to employees
 could be accomplished simultaneously, as argued by the Union. /3/ Thus,
 since a decision to implement a RIF would not necessarily coincide with
 specific notice to an individual employee selected for release from his
 or her competitive level, the Union's proposal would require the Agency
 to freeze performance appraisals at a time different from that which is
 required by the FPM.  For this reason, the proposal is inconsistent with
 the FPM, contrary to the Union's claim.
 
    The Authority further concludes that the FPM provision at issue
 herein is a Government-wide regulation.  The Office of Personnel
 Management (OPM) is statutorily empowered to prescribe regulations for
 the release of employees in a reduction-in-force which give due effect
 to length of service and performance ratings (5 USC 3502).  /4/ The
 requirements as to the date performance appraisals are frozen as set
 forth in the FPM constitute OPM's determination of the policies
 necessary to give due effect to performance ratings.  Moreover, section
 351.204 of part 351 of title 5, Code of Federal Regulations (CFR),
 requires each agency to follow and apply the regulations prescribed
 therein when the agency determines that a RIF is necessary.  In
 addition, section 351.205 further authorizes the Office of Personnel
 Management to establish "further guidance and instructions for the
 planning, preparation, conduct, and review of reduction-in-force through
 the Federal Personnel Manual system." /5/ The requirements for
 determination of the effective date of employees' performance
 appraisals, as mentioned above, are set forth in chapter 351 of the FPM
 and are applicable to Federal civilian employees in the competitive
 service within the executive branch of the Government.  As such, the
 applicable FPM provision, is generally applicable to the Federal
 civilian work force and is "Government-wide" within the meaning of
 section 7117(a)(1) of the Statute.  See American Federation of
 Government Employees, AFL-CIO and Headquarters, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 11 FLRA 238 (1983)
 (Union Proposal 6);  National Federation of Federal Employees, Local
 1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9
 FLRA 151 (1982);  National Treasury Employees Union, Chapter 6 and
 Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980).
 Insofar as the Union's proposal is inconsistent with the applicable
 provision of the FPM, it is outside the duty to bargain under section
 7117(a)(1) of the Statute.  /6/
 
    As to the Union's assertion that the proposal is negotiable because
 it is a procedure which management will observe in the exercise of its
 right to implement a RIF, it cannot be sustained under the
 circumstances.  Under the Statute, the duty of an agency to negotiate
 with a union extends to the conditions of employment affecting
 bargaining unit employees except as provided otherwise by Federal law
 and Government-wide rule or regulations.  National Treasury Employees
 Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3
 FLRA 747 (1980).  Therefore, a proposal is outside the duty to bargain
 to the extent that it is inconsistent with any Federal law or
 Government-wide rule or regulation, irrespective of whether the proposal
 herein is inconsistent with a Government-wide regulation, the proposal
 is outside the duty to bargain under section 7117(a)(1) 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.  Issued, Washington, D.C., May 8, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Chapter 351, subchapter 2-6a(1) of the FPM states as follows:
 
          2.6.  EFFECTIVE DATE OF PERFORMANCE APPRAISAL
 
          a.  Appraisals frozen on date of notice.
 
          (1) Except for employees covered under 2-6a (3) below, an
       employee's current official performance appraisal on the date of
       issuance of a specific reduction-in-force notice is the appraisal
       that determines his or her retention standing under paragraph 2-9
       of this chapter.  Performance appraisals that were due on or
       before the date of issuance of notice but were not officially
       approved and put on record until after the date of issuance of
       notice do not affect determination of the employee's retention
       standing.
 
 
    /2/ Section 7117(a)(1) of the Statute provides as follows:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph 2 of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulations, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulati