28:0633(81)NG - NFFE, LOCAL 1623 VS ARMY, NGB, SOUTH CAROLINA



[ v28 p633 ]
28:0633(81)NG
The decision of the Authority follows:


28 FLRA No. 81

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1623

              Union

        and

SOUTH CAROLINA NATIONAL GUARD
COLUMBIA, SOUTH CAROLINA

              Agency

Case No. 0-NG-1189

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)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of five provisions of a local agreement disapproved by the Agency head under section 7114(c) of the Statute. 1

II. Provision 1

ARTICLE XVI

Section 4. FORMAL DISCIPLINARY ACTIONS:

DEFINITION: A formal disciplinary action is any action taken against an employee which causes a letter or other document which is critical of the employee to be placed in the personnel folder up to and including suspensions of thirty (30) days or less. 

A. Positions of the Parties

The Agency points out the parties' negotiated grievance procedure covers disciplinary actions but not adverse actions. The Agency argues that by defining suspensions of 30 days or less as "formal disciplinary actions" and not as adverse actions, the provision effectively brings suspensions within the coverage of the parties' grievance procedure and subjects such actions to arbitral review. Consequently, according to the Agency, the provision violates 32 U.S.C. 709(e)(4) and (5) and an Agency regulation, for which a compelling need is asserted, which limit the appeal of suspensions, among other matters, to the adjutant general of the jurisdiction concerned.

The Union first contends that, because the local management negotiating team did not allege a compelling need for the Agency regulation to bar negotiation on the provision, to do so on appeal violates section 7114(b)(2) of the Statute. The Union further asserts that the Agency has failed to demonstrate a compelling need for its regulation. Finally, the Union states that the proposal does not affect the legal treatment of suspensions as appealable to the adjutant general.

B. Analysis and Conclusion

Contrary to the Union's claim, the provision expressly includes suspensions of 30 days or less among those matters defined as "formal disciplinary actions." As a result, suspensions for 30 days or less would be covered by the parties' negotiated grievance procedure. By including suspensions within the coverage of the negotiated grievance procedure this proposal is inconsistent with the National Guard Technicians Act of 1968, as amended, 32 U.S.C. 709 (the Technicians Act). 2

Specifically, section 709(e) of the Technicians Act expressly reserves to the adjutant general of the jurisdiction concerned the right to take the actions enumerated in subsection (5), including suspensions. In Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984)  (Proposal 5) the Authority held that inclusion in a negotiated grievance and arbitration procedure of a grievance concerning an adjutant general's decision to take any of the actions enumerated in section 709(e) is precluded by that provision of the Technicians Act. Because Provision 1 in this case includes suspensions within the coverage of the parties' negotiated grievance procedure, the provision conflicts with section 709(e) of the Technicians Act. Consequently, based on the reasoning and cases cited in Pennsylvania Army and Air National Guard, the provision is outside the duty to bargain. In view of our disposition of this provision, it is unnecessary to address the parties' additional arguments concerning the provision's negotiability. 3

III. Provision 2

ARTICLE XVI

Section 5. ADVERSE ACTIONS: Definition: Adverse actions are disciplinary and non-disciplinary removals, suspensions, furloughs without pay, and reductions in rank or pay.

A. Positions of the Parties

The Agency contends that the provision conflicts with 32 U.S.C. 709(e) by defining non-disciplinary removals as adverse actions. Apparently, the Agency believes that the provision would prevent it from removing a technician from a position, as required by 32 U.S.C. 709(e)(1) and (2), 4 when the technician fails to meet certain legal prerequisites for employment as specified in those sections of law.

The Union states that the provision is consistent with law as well as with an Agency regulation implementing law. 

B. Analysis and Conclusion

Unlike Provision 1 in this case which conflicts with 32 U.S.C. 709(e), no such inconsistency is apparent with respect to this provision. That is, the mere fact that Provision 2 "mixes" removals under 32 U.S.C. 709(e)(1) and (2) with adverse action removals covered by 709(e)(4), as the Agency alleges, provides no support for the contention that the provision conflicts with applicable law. In fact, the effect of this provision is to exclude from coverage of the negotiated grievance procedure non-disciplinary removals. Thus, whether a Technician is removed for disciplinary or non-disciplinary reasons under section 709(e), the affected employee has only those rights set out in subsections (e)(5) and (6).

Consequently, we find no conflict between Provision 2 and applicable law. Therefore, the provision is within the duty to bargain.

IV. Provision 3

ARTICLE XXXIV

Section 2. In the event that the employee and supervisor cannot agree upon applicable performance standards and critical elements for an employee or position, the matter shall be referred to the second line supervisor and through subsequent supervisors in an attempt to resolve the matter. If the matter cannot be resolved thru supervisory channels, the SPMO will make the final decision. 5

A. Positions of the Parties

"SPMO" refers to the Support Personnel Management Office of the Agency. The Agency contends that the provision would require it to negotiate concerning both the content of performance standards and positions outside the bargaining unit, and is therefore contrary to the Statute. 

The Union, on the other hand, contends that it is simply trying to negotiate a procedure for a fair review of performance standards under section 7106(b)(2) of the Statute. The Union also states that the provision is not intended to assign duties to anyone outside the bargaining unit.

B. Analysis

1. Content of Performance Standards

The Authority has consistently held that proposals which substantively restrict management in its identification of critical elements of a position and establishment of performance standards are inconsistent with section 7106(a)(2)(A) and (B) of the Statute as improper interference with management's rights to direct employees and assign work. See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982).

It is equally well established, on the other hand, that there is a duty to bargain under section 7106(b)(3) on appropriate arrangements for employees adversely affected by management's exercise of its authority under section 7106(a), that is, in terms of this provision, actions taken under the performance standards established by management which adversely affect employees. See, for example, American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784, 791-92 (1980) (Proposal 5). Thus, in the facts of that case, the Authority found that the proposal in dispute merely established a general, non-quantitative requirement by which the application of critical elements and performance standards established by management may subsequently be evaluated in a grievance by an employee who believes that the application of management's performance standard has adversely affected him or her. In finding that proposal to be within the duty to bargain, the Authority specifically noted that such an arrangement did not affect management's discretion to determine the content of performance standards, nor did it authorize an arbitrator to substitute his or her judgment for that of management as to the content of the standards. 

Turning to Provision 3, by its terms it refers to agreement between employees and management on performance standards and critical elements for an employee or position. Therefore, it seeks to negotiate concerning the establishment and content of performance standards and critical elements, matters which the Authority has held to be within the sole discretion of management, under section 7106(a)(2)(A) and (B) of the Statute. Moreover, there is nothing in the language of the provision substantiating the Union's contention that the provision is intended to assure that performance standards are fair and equitable. such a provision would, in any event, have to be limited to the application of standards to employees rather than the establishment of the standards themselves in order to be within the duty to bargain, as indicated above.

2. Positions Outside the Bargaining Unit

It is well established that proposals are not within the duty to bargain if they apply to employees or positions outside the bargaining unit. See, for example, American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL - CIO and Social Security Administration, Office of Field Operations. Baltimore, Maryland, 17 FLRA No. 6 (1985) (Proposal 5). Here, in agreement with the Agency, we find that the last sentence of this provision, by assigning a specific responsibility to the SPMO, applies to employees and positions outside the bargaining unit. American Federation of State, County, and Municipal Employees, AFL - CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983) (Proposal 1); and American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, the U.S. Army Test, Measurement and Diagnostic Equipment Support Group, the U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA 14 (1987) (Provision 6).

C. Conclusion

Based on the reasons and cases cited above, Provision 3 conflicts with the Agency's right to direct employees and to assign work, under section 7106(a)(2)(A) and (B) of the Statute. Moreover, the provision applies to employees or positions outside the bargaining unit. Therefore, the provision is outside the Agency's duty to bargain. 

V. Provision 4

ARTICLE XXXIV

Section 7. In the event a determination to withhold a within grade increase is made by the supervisor the approval must be obtained by the second level supervisor. A minimum notice period of 30 days must be provided the employee. The employee must be informed of the requirements that must be met to be considered at a satisfactory level of competence, and will be provided 90 calendar days within which to improve performance and receive a redetermination of satisfactory level of competence. If employee has improved to a satisfactory level the within grade increase will be retroactive to the original due date.

A. Positions of the Parties

The Agency contends that the provision is nonnegotiable because it conflicts with certain requirements in the Federal Personnel Manual (FPM) and with the Back Pay Act (5 U.S.C. 5596).

The Union contends that the provision complies with Government-wide regulations and concerns a condition of employment under section 7106(b)(2) and (3) of the Statute. The Union also contends that because the provision concerns within-grade increases, the Back Pay Act does not apply at all.

B. Analysis

Under Office of Personnel Management (OPM) regulations, one of the conditions which must be met for an employee to receive a within-grade increase (WGI) is a determination by the employing agency that the employee's performance is at an acceptable level of competence. When a WGI has been withheld, an agency may, at any time thereafter, grant the WGI when it determines that the employee has demonstrated sustained performance at an acceptable level of competence. See 5 C.F.R. 531.411, "Continuing evaluation after withholding a within-grade increase." Of particular importance in terms of the negotiability of this provision, 5 C.F.R. 531.412(b), "Effective date of a within-grade increase," provides that "when an acceptable level of competence is achieved at some time after a negative determination, the effective date is the first day of the first pay period after the acceptable determination is made." These regulations have previously been found to be Government-wide in scope. American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Ordnance Missile and Munitions Center and School (USAOMMCS) Redstone Arsenal, Alabama, 26 FLRA No. 12 (1987).

It appears from the record that the parties' dispute concerns the provision's last sentence. The Agency contends that, in a circumstance where an employee's performance has improved to an acceptable level of competence, the provision would require a WGI to be granted retroactively to the date that an employee would have received such an increase, but for the Agency's initial determination to withhold the increase because the employee's performance was unacceptable. Under the Agency's interpretation, the last sentence of the provision conflicts with the requirement of 5 C.F.R. 531.412(b) that the effective date of the WGI be the first day of the first pay period after the acceptable level of competence determination is made, and not any prior date.

The Union, on the other hand, contends that the provision's last sentence has been either misunderstood or misinterpreted by the Agency. It asserts that the element of retroactivity referred to by the provision does not concern the Agency's decision to withhold an employee's WGI. Rather, it applies only when the employee has been given notice that performance must improve or the WGI will be withheld. Thus, under its interpretation, the last sentence of the provision refers to the 90-day period during which employees are given the opportunity to demonstrate acceptable performance under 5 U.S.C. 4302(b)(6) 6 prior to any decision by the Agency to withhold a WGI. Hence, according to the Union, the meaning of the disputed sentence is that if the employee brings his performance up to an acceptable level during this 90-day period, the WGI will be given effect as of the date the increase was originally due.

We find that the Union's interpretation is at variance with the plain language of the provision. Under the Union's  interpretation, the last sentence of the provision refers to a period prior to any decision by the Agency to withhold an employee's WGI. If this were the case, the word "retroactive" in the provision, would be without meaning or effect. On the assumption that the language in a provision is intended to have some effect, we conclude, in agreement with the Agency, that the last sentence of the provision conflicts with 5 C.F.R. 531.412(b).

As to the Agency's further contention that the provision conflicts with the Back Pay Act, 5 U.S.C. 5596, we find that provision of law inapplicable to this dispute. The Back Pay Act concerns employees affected by unjustified or unwarranted personnel actions. On the other hand, Provision 4, on its face, does not address either unjustified or unwarranted decisions to withhold periodic step increases.

With respect to the Union's view that the provision is negotiable under either section 7106(b)(2) or (3) of the Statute, we have held that section 7106(b)(2) and (3) applies only to management's exercise of rights reserved to it by the Statute. Because the provision violates a Government-wide regulation, it cannot be either a negotiable procedure to be followed by management in exercising a reserved right or an appropriate arrangement for employees adversely affected by the exercise of a management right. American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 25 FLRA No. 78 (1987).

C. Conclusion

For the reasons stated, the last sentence of Provision 4 conflicts with a Government-wide regulation and is outside the duty to bargain under section 7117(a)(1) of the Statute. The first three sentences of the provision, however, are not alleged by the Agency to be outside the duty to bargain, nor do they otherwise appear to conflict with the Statute or other laws or Government-wide regulations. Therefore, the first three sentences of the provision are within the duty to bargain.

VI. Provision 5

ARTICLE XXXV

TECHNICIAN/MILITARY COMPATIBILITY: Technicians, as a condition of employment, must maintain membership in the National Guard. The following  will apply to all technicians in the areas of compatibility and assignment. 7

1. If a technician is made incompatible for any reason the Support Personnel Management Office will work with the Military Personnel Office to try and reassign the technician into a compatible position.

2. If it becomes apparent that a technician was made incompatible for the purpose of removing him from his civilian position the Support Personnel Management Office will initiate an investigation and seek corrective action as may be appropriate.

3. Technicians who are being separated for incompatibility have the right to informally appeal to the Adjutant General, and have their appeal considered prior to separation from technician employment.

A. Positions of the Parties

The Agency contends that, because this provision would require bargaining on military matters, it conflicts with law and an Agency-wide regulation for which there is a compelling need.

The Union contends that the provision concerns only procedures which will assist employees in fulfilling the requirements of law. It also contends that the provision does not interfere with any of the Agency's management rights, and, therefore, is fully negotiable under section 7106(b)(2) and (3) of the Statute.

B. Analysis and Conclusion

Under 32 U.S.C. 709(b) and (e)(1), 8 the employees represented by the Union in this case must, as a condition of  their civilian employment, become and remain military members of the National Guard and maintain the military grade specified for their technician positions. Based upon these provisions of law, the Agency promulgated Technician Personnel Regulation (TPR) 300 (302.7, paragraph 7-8) which, among other things, describes the manner in which civilian technicians will maintain military membership in the National Guard, including compatible civilian and military job designations.

The Authority has previously determined that, where a union's proposal concerns a matter in connection with the military aspects of technician employment, it concerns a subject which is not a "condition of employment" within the meaning of section 7103(a)(14) and, accordingly, is outside the duty to bargain under the Statute. See Association of Civilian Technicians, Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50 (1980). All three sections of this provision clearly concern military aspects of technician employment and are, therefore, outside the Agency's duty to bargain. See also National Association of Government Employees, Local R14-87 and Kansas Army National Guard, Topeka, Kansas, 15 FLRA 52 (1984).

As we conclude that the entire provision is nonnegotiable because it concerns a matter in connection with the military aspects of technician employment, it is unnecessary to address the parties' contentions with respect to a compelling need for the Agency regulation at issue. We also note that because it has not been alleged, nor has the Authority found, that the provision conflicts with any of management's substantive rights under the Statute, it is also unnecessary to address the Union's contention that the provision is negotiable under section 7106(b)(2) or (3).

VII. Order

The petition for review relating to Provisions 1, 3, the last sentence of Provision 4, and Provision 5 is dismissed. The Agency must rescind its disapproval of Provision 2 and the first three sentences of Provision 4  which were bargained on and agreed to by the parties at the local level. 9

Issued, Washington, D.C., August 21, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX

The pertinent parts of 32 U.S.C. 709 provide as follows:

709. Technicians: employment, use status

(b) Except as prescribed by the secretary concerned, a technician employed under subsection (a) shall, while so employed, be a member of the National Guard and hold the military grade specified by the Secretary concerned for that position.

(e) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned-

(1) a technician who is employed in a position in which National Guard membership is required as a condition of employment and who is separated from the National Guard or ceases to hold the military grade specified for his position by the Secretary concerned shall be promptly separated from his technician employment by the adjutant general of the jurisdiction concerned;

(2) a technician who is employed in a position in which National Guard membership is required as a condition of employment and who fails to meet the military security standards established by the Secretary concerned for a member of a reserve component of the Armed Forces under his jurisdiction may be separated from his employment as a technician and concurrently discharged from the National Guard by the adjutant general of the jurisdiction concerned;

(3) a technician may, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction concerned;

(4) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned;

(5) a right of appeal which may exist with respect to clause (1), (2), (3), or (4) shall not extend beyond the adjutant general of the jurisdiction concerned; and

(6) a technician shall be notified in writing of the termination of his employment as a technician and such notification shall be given at least thirty days prior to the termination date of such employment.

5 U.S.C. 4302, insofar as is relevant here, provides:

4302. Establishment of performance appraisal systems

(b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for-

(6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. 

FOOTNOTES

Footnote 1 The Union withdrew its appeal on two additional provisions because the Agency withdrew its allegation of nonnegotiability concerning them. Since the dispute on these two provisions has been rendered moot, they will not be considered further.

Footnote 2 The relevant portions of the Technicians Act are set out in the Appendix to this decision.

Footnote 3 Additionally, the fact that the parties may have negotiated an identical provision in a previous contract, as asserted by the Union at n. 3 of its Reply Brief, has no bearing on our finding that this provision is nonnegotiable because it is inconsistent with law. See, for example, Maritime Metal Trades Council and Panama Canal Commission, 17 FLRA 890, 891 (1985).

Footnote 4 The pertinent provisions of the Technicians Act are set out in the Appendix to this decision.

Footnote 5 In its Reply Brief, the Union indicates that a change in the wording of the last sentence of this provision was made by the parties at the local level in this case. However, this change is not a part of the dispute before us and will not be considered.

Footnote 6 5 U.S.C. 4302(b)(6) is set out in the Appendix to this decision.

Footnote 7 As with Provision 3,