18:0093(18)NG - AFGE Local 32 and OPM -- 1985 FLRAdec NG
[ v18 p93 ]
The decision of the Authority follows:
18 FLRA No. 18 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. 0-NG-913 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 an issue concerning the negotiability of one Union proposal. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal Each employee who is currently evaluated as at least satisfactory on all elements and as outstanding on any performance element of the job shall have four years of service added to his or her creditable service for purposes of reduction-in-force. According to the Union, this proposal was submitted in connection with the renegotiation of the parties' collective bargaining agreement. On its face, the proposal would require that, for reduction-in-force retention purposes, credit for 4 additional years of service would be given to an employee who had received an overall rating of "satisfactory" and had been rated "outstanding" in any performance element. 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. If the proposal in question is intended to 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. American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 127 (1984) (Union Proposal 1), petition for review filed, Local 32, American Federation of Government Employees, AFL-CIO v. FLRA, No. 85-1038 (D.C. Cir. Jan. 16, 1985); NTEU and IRS, New Orleans District, 3 FLRA 748, 754 (1980). Moreover, if the proposal is intended to be applied in a manner consistent with the regulation and to thereby define what constitutes an "outstanding" summary rating, it is inconsistent with section 7106(a)(2)(A) and (B) of the Statute. In American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578 (1984), the Authority determined that an essential aspect of management's assignment of work and the supervision and guidance of employees is to establish performance requirements for each overall level of performance. Thus, the Authority held that a proposal which would have established such requirements was inconsistent with the rights to direct employees and assign work under section 7106(a)(2)(A) and (B). Since the Union's proposal, herein, which would establish the quality of employee performance necessary to attain credit of 4 years of additional service, is linked by regulation to, and thereby would be determinative of, the performance requirement for an "outstanding" overall performance rating, it is, for the reasons set forth in Department of Justice, not within the duty to bargain. /3/ See also American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6 (1984) (Union Proposal 6), petition for enforcement filed, FLRA v. Office of Personnel Management, No. 84-1325 (D.C. Cir. July 18, 1984). 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 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., 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.