21:0298(37)NG - NFFE, Local 29 and Army Engineer District, Kansas City, Mo. -- 1986 FLRAdec NG



[ v21 p298 ]
21:0298(37)NG
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)
       ann