21:1039(121)NG - AFSCME, Local 2830 and Dept. of Justice -- 1986 FLRAdec NG



[ v21 p1039 ]
21:1039(121)NG
The decision of the Authority follows:


 21 FLRA No. 121
 
 AMERICAN FEDERATION OF STATE, 
 COUNTY AND MUNICIPAL EMPLOYEES, 
 LOCAL 2830, AFL-CIO
 Union
 
 and
 
  DEPARTMENT OF JUSTICE
 Agency
 
                                            Case No. 0-NG-943
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of the two underscored sentences of the following Union
 proposal.
 
          Repromotions.  Special consideration for repromotion is
       extended to an employee who has been demoted in the unit without
       personal cause (that is, without misconduct or performance failure
       and not at the employee's request).  Such consideration is
       extended for three years following the effective date of the
       demotion.  This employee shall be selected for the first available
       vacancy for which he or she qualifies and which the Employer
       determines to fill.  Such demoted employees who have been placed
       in career ladder positions shall be promoted therein annually
       provided their overall performance remains satisfactory until he
       or she has regained his or her original grade level.
 
    Based on the positions of the parties in this case each disputed
 sentence is treated separately in this decision.
 
                       II.  First Disputed Sentence
 
          This employee shall be selected for the first available vacancy
       for which he or she qualifies and which the Employer determines to
       fill.
 
                       A.  Positions of the Parties
 
          The Agency contends that:
 
          1.  By requiring the automatic selection of a repromotion
       eligible this sentence interferes with management's right to make
       selections from any appropriate source under section 7106(a)(2)(C)
       of the Statue and a Government-wide regulation, namely,
       Requirement 4, subchapter 1-4, chapter 335 of the Federal
       Personnel Manual (FPM);
 
          2.  because it is not limited to filling positions at or below
       the level from which the employee was demoted and would apply to
       employees only minimally qualified it is an inappropriate
       arrangement and inconsistent with the mandate of an effective and
       efficient government under section 7101(b) of the Statute;
 
          3.  because it would apply to employees voluntarily demoted
       dection 7106(b)(3) is inapplicable;
 
          4.  because it would apply to employees demoted for cause it
       would prevent management from acting at all with regard to
       effecting performance based or conduct based adverse actions;
       and,
 
          5.  it does not concern conditions of employement of bargaining
       unit employees to the extent it applies to individuals separated
       from employment or to nonbargaining unit employees or positions.
 
    According to the Union this sentence was intended to be limited to
 employees involuntarily demoted without personal cause and did not
 contemplate employees being selected for managerial positions.  Further,
 in support of its position that the disputed sentence is negotiable as
 an appropriate arrangement under section 7106(b)(3), the Union cites the
 decision of the U.S. Court of Appeals for the District of Columbia
 Circuit in American Federation of Government Employees, Local 2782 v.
 Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983),
 reversing and remanding American Federation of Government Employees,
 AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
 Washington, D.C., 7 FLRA 91 (1981).
 
                               B.  Analysis
 
                  1.  Meaning of First Disputed Sentence
 
    The portion of the Union's proposal which is not in dispute expressly
 limits application of the first disputed sentence to employees
 involuntarily demoted without personal cause to positions in the unit.
 Thus, the Agency's arguments to the contrary are without merit and
 cannot be sustained.  In addition, the Agency does not support its claim
 that the sentence would require the filling of positions at grade levels
 above the demoted employee's former grade or require the filling of
 nonbargaining unit positions.
 
         2.  Appropriate arrangements with the meaning of section
 
                7106(b)(3) of the Statute
 
    The first disputed sentence expressly limits the selection of demoted
 employees for vacancies which the Agency decides to fill to demoted
 employees who are "qualified." The term "qualified" is not defined in
 the record.  We therefore adopt for the purpose of this decision the
 meaning accorded to it in the FPM:  Meeting the minimum qualifications
 requirements established by the Office of Personnel Management (OPM) for
 the particular position as supplemented by any "selective factors" such
 as the knowledge, skills or abilities essential to the successful
 completion of the job which are added by the agency involved.  See FPM
 chapter 335, section 1-2h.  As a result, the first disputed sentence
 would preserve management's discretion to determine the qualifications
 requirements of the position involved and the discretion to determine
 whether the repromotion eligible candidates under consideration are
 qualified.  Further, the first disputed sentence would not require
 management to fill a vacant position.  Hence, the Authority finds that
 the first disputed sentence in this case has the same effect as the
 proposal in the Authority's Decision and Order on Remand in AFGE, Local
 2782 and Bureau of the Census, 14 FLRA 801 (1984).  In that case the
 Authority concluded that the proposal constituted a negotiable
 appropriate arrangement under section 7106(b)(3) of the Statute
 notwithstanding its limitation on management's discretion to determine
 the relative qualifications of repromotion eligibles.  /1/ Accordingly,
 the Authority finds, for the reasons stated more fully in that decision,
 that the first disputed sentence here does not excessively interfere
 with management's rights and, therefore, constitutes a negotiable
 appropriate arrangement under section 7106(b)(3) of the Statute.
 
         3.  Interference with Government-wide Rule or Regulation
 
    The Authority also concluded in its Decision and Order on Remand in
 AFGE, Local 2782 and Bureau of the Census that under section 7106(b)(3),
 it nevertheless was outside the duty to bargain under section 7117(a)(1)
 of the Statute because it was inconsistent with a Government-wide
 regulation, that is, Requirement 4 of subchapter 1-4, chapter 335 of the
 FPM, which would permit agencies to fill positions by making selections
 from any appropriate source.  The first disputed sentence at issue in
 this case would require the Agency to select for vacancies which it has
 decided to fill only those employees who are affected by
 reduction-in-force actions involving demotion.  It would, therefore,
 have the same effect as the proposal in AFGE, Local 2782 and Bureau of
 the Census, that is, it would prevent the Agency from making selections
 from any appropriate source.  Thus, for the reasons stated more fully in
 our Decision and Order on Remand in AFGE, Local 2782 and Bureau of the
 Census, the first disputed sentence in this case also violates
 Requirement 4 of subchapter 1-4, chapter 335 of the FPM, a
 Government-wide regulation, and is outside the duty to bargain.
 
                              C.  Conclusion
 
    We find that the first disputed sentence would not excessively
 interfere with management's rights and, thus, that it constitutes an
 appropriate arrangement for employees adversely affected by the exercise
 of such rights, within the meaning of section 7106(b)(3) of the Statute.
  However, we also hold, based upon the analysis provided in our Decision
 and Order on Remand in AFGE, Local 2782 and Bureau of the Census, 14
 FLRA 801 (1984), affirmed in the Authority's Decision and Order on
 Motion for Reconsideration (July 11, 1985), petition for review filed,
 No. 85-1562 (D.C. Cir. September 6, 1985), that the sentence conflicts
 with FPM, chapter 335, subchapter 1-4, and, therefore, is nonnegotiable
 under section 7117(a)(1) of the Statute.
 
                      III.  Second Disputed Sentence
 
          Such demoted employees who have been placed in career ladder
       positions shall be promoted annually provided their overall
       performance remains satisfactory until he or she has regained his
       or her original grade level.
 
                       A.  Positions of the Parties
 
    The Agency argues that:
 
          1.  By making career ladder promotions automatic based only on
       an overall satisfactory performance rating it interferes with
       management's right to make selections for promotions under section
       7106(a)(2)(C) of the Statute, it is inconsistent with
       Government-wide regulations, namely, Requirement 4, subchapter
       1-4, chapter 335 of the FPM and subchapter 1-5, chapter 335 of the
       FPM, it is inconsistent with classification requirements
       established in law and the FPM, and it is inconsistent with 5
       U.S.C. Sections 4303 and 7512;
 
          2.  because it would in certain circumstances require
       promotions above the journeyman levels of the career ladder it
       interferes with management's rights to assign work under section
       7106(a)(2)(B), to make selections for promotions under section
       7106(a)(2)(C) and to determine numbers, types and grades of
       employees assigned under section 7106(b)(1);  and,
 
          3.  it does not concern working conditions of bargaining unit
       employees to the extent it applies to nonbargaining unit employees
       and positions.
 
    According to the Union the proposal is limited to employees
 involuntarily demoted without personal cause and did not contemplate
 employees being selected for managerial positions.  The Union further
 argues that it does not intend the proposal to require employees to be
 promoted to positions at a level above the one from which they had been
 demoted or to positions outside the bargaining unit.
 
    In support of its position, the Union cites American Federation of
 Government Employees, Local 2782, 702 F.2d 1183 (D.C. Cir. 1983).
 
                               B.  Analysis
 
    It is generally understood that when a Federal employee is placed in
 a career ladder position that employee is placed at a grade level less
 than the full performance or journeyman grade level with the express
 intention to prepare that employee for advancement by noncompetitive
 promotions through intermediary grade levels to the full performance
 grade level.  See FPM chapter 335, subchapter 1-5.  Although not
 discussed by the parties, such noncompetitive career ladder promotions
 are governed by 5 C.F.R. Section 335.104 (1985).
 
    This regulation provides as follows:
 
          Section 335.104 Eligibility for career ladder promotion.
 
          (a) No employee shall receive a career ladder promotion unless
       his or her most recent summary rating under Part 430 of this
       chapter is "Fully Successful" or higher.  In addition, no employee
       may receive a career ladder promotion who has a rating below
       "Fully Successful" on a critical element that is also critical to
       performance at the next higher grade of the career ladder.
 
    The second disputed sentence, however, expressly requires a career
 ladder promotion solely on the basis of an overall satisfactory
 performance appraisal without regard to whether the employee was
 appraised fully successful on critical elements that are also critical
 to performance at the next higher grade of the career ladder.  This
 requirement is inconsistent with 5 CFR Section 335.104, which is a
 Government-wide regulation within the meaning of section 7117(a)(1) of
 the Statute.  See National Treasury Employees Union, Chapter 6 and
 Internal Revenue Service, New Orleans District, 3 FLRA 748, 755 (1980).
 
    In view of our decision that this sentence violates a Government-wide
 regulation we find it unnecessary to address the Agency's additional
 contentions that the proposal would improperly require noncompetitive
 promotions in various hypothetical circumstances.
 
                              C.  Conclusion
 
    We hold that the second disputed sentence conflicts with 5 CFR
 Section 353.104 and, therefore, is nonnegotiable under section
 7117(a)(1) of the Statute.  In view of this holding, section 7106(b)(3)
 is inapplicable.  /2/
 
                                IV.  Order
 
    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 29, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Subsequent to the filings in this case the Authority issued
 National Association of Government Employees, Local R14-87 and Kansas
 Army National Guard, 21 FLRA No. 4 (1986), in which we specifically
 adopted the rationale of the District of Columbia Circuit in AFGE, Local
 2782.  Thus, as we stated in the Kansas Army National Guard decision, we
 will henceforth determine whether a proposal constitutes a negotiable
 "appropriate arrangement" under section 7106(b)(