18:0093(18)NG - AFGE Local 32 and OPM -- 1985 FLRAdec NG



[ v18 p93 ]
18:0093(18)NG
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. Offic