21:0298(37)NG - NFFE, Local 29 and Army Engineer District, Kansas City, Mo. -- 1986 FLRAdec NG
[ v21 p298 ]
The decision of the Authority follows:
21 FLRA No. 37 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and U.S. ARMY ENGINEER DISTRICT, KANSAS CITY, MO. Agency Case No. 0-NG-547 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of the underscored portion of the following Union proposal. Annual ratings are effective as of the date approved and remain the employee's current official rating for one year or until replaced by another rating or an entrance rating. An entrance rating is an automatic official rating of Fully Successful, as a minimum, unless an Exceptional or Highly Successful rating has been given within the last 12 months, in which case, that rating will be the entrance rating for one year from its effective date; provided the employee has not changed career fields. II. Positions of the Parties The Agency contends that the proposal conflicts with an internal agency regulation which provides that an employee's entrance rating when changing positions will be "Fully Successful." It claims that a compelling need exists for this regulation because it (1) implements in an essentially nondiscretionary manner the mandate of a Government-wide regulation and (2) is essential to the maintenance of basic merit principles. It argues that the proposal is, therefore, outside the duty to bargain under section 7117(a)(2) of the Statute. The Union contends that the Agency has not demonstrated a compelling need for its regulation. III. Analysis and Conclusion The Union's proposal provides that an employee whose past performance warranted an "Exceptional" or "Highly Successful" rating would retain that rating for one year and would receive the same rating as an entrance rating when changing positions during that year. The proposal conflicts with Army Regulation 690-400, Chapter 430 which provides that an employee's entrance rating is an automatic official rating of "Fully Successful." However, an agency regulation does not bar negotiation on a conflicting union proposal unless the agency demonstrates that its regulation is supported by a compelling need. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450, 454 (1980). The Agency first contends that there is a compelling need for its regulation under the illustrative standard for determining whether a compelling need exists as set forth in section 2424.11(c) of the Authority's Rules. It claims that a Department-wide performance appraisal system which results in consistent ratings throughout the Agency is required to implement the requirement of 5 CFR 351.201(c). /1/ That provision states that 5 CFR Part 351 must be "uniformly and consistently applied in any one reduction in force (RIF)." The Agency argues that the Union's proposal would result in employees in different bargaining units who had performed equally well receiving different entrance ratings and, consequently, different service credit in the event of a RIF. /2/ Both the Union proposal and the agency regulation do not specifically concern the amount of service credit which an employee will receive under OPM regulation. Rather, the proposal and the agency's regulation each establish an entrance rating which would serve as the basis for determining the service credit to which an employee would be entitled. The Agency has not shown that the only way it could apply section 351.504(d) in a uniform and consistent manner is by giving all employees an entrance rating of "Fully Successful." It has not demonstrated that the Union's proposal would present it from crediting all employees with similar ratings with the same amount of service credit as required under section 351.504(d). Moreover, the Agency would be required to replace its current regulation with one similar to the Union's proposal under the new OPM Performance Management System regulations effective April 10, 1986. 51 Fed. Reg. 8396-8421 (1986). The new regulations require all agencies to transfer an employee's current performance rating of record to the employee's new job when an employee moves to a new position between performance appraisals. See 5 CFR 430.206(f) and 293.405(a). To the same effect, the Federal Personnel Manual chapter implementing the RIF regulations provides that "(r)egardless of whether the employee's service occurred in one or more agencies," the additional service credit an employee receives in a RIF should be based on "the employee's actual ratings." Interim FPM chapter 351 section 3-9(d)(3) (transmitted March 4, 1986 by FPM Letter 351-20). Additionally, the Agency has not provided support in the record for its contention that the proposal, which applies only to employees in the Kansas City District bargaining unit, would require it to treat employees in a single competitive area inconsistently in the event of a RIF. In this connection, the Agency does not claim that the competitive area encompassing the Kansas City District bargaining unit also includes positions and employees who are not within the bargaining unit. See National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA 254 (1983), in which the Authority made no determination as to whether Union Proposal 1 concerning competitive areas applied to non-bargaining unit employees because the agency's sole contention was that the proposal conflicted with a regulation for which a compelling need existed. The Agency also contends that its regulation satisfies the standard for compelling need set forth in section 2424.11(b) of the Authority's Rules because it is essential to the maintenance of basic merit principles mandating fair and equitable treatment for employees set forth at 5 U.S.C. Section 2301(b)(2) and (6). However, the Agency's contentions amount to nothing more than a reassertion of its argument concerning additional service credit based on performance disposed of above. The Authority finds that the Agency has failed to demonstrate that its regulation is supported by a compelling need. Therefore, the regulation does not bar negotiation on the Union proposal and the proposal is within the duty to bargain. /3/ IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning the Union's proposal. Issued, Washington, D.C. April 14, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES$ (1) All references in this decision to the Office of Personnel Management's regulations concerning reductions-in-force (RIF) in 5 CFR Part 351 are to the revised regulations published at 51 Fed. Reg. 318-326 (1986) which became effective February 3, 1986 (hereinafter referred to as the RIF regulations). (2) The relevant regulation, 5 CFR 351.504(d), provides: Section 351.504 Credit for performance. . . . . . . (d) The additional service credit an employee receives for performance under this subpart shall be expressed in additional years of service and shall consist of the mathematical average (rounded in the case of a fraction to the next higher whole number) of the employee's last three (actual and/or assumed) annual performance ratings of record computed on the following basis: (1) Twenty additional years of service for each performance rating of outstanding (Level 5) or equivalent; (2) Sixteen additional years of service for each performance rating of exceeds fully successful (Level 4) or equivalent; or (3) Twelve additional years of service for each performance rating of fully successful (Level 3) or equivalent. (3) In finding the proposal to be within the duty to bargain, the Authority makes no judgment as to its merits.