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29 FLRA NO. 41


NATIONAL TREASURY EMPLOYEES UNION

              Union

      and

DEPARTMENT OF THE TREASURY
FINANCIAL MANAGEMENT SERVICE

              Agency

Case No. 0-NG-1193

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 six provisions of a local agreement disapproved by the Agency head under section 7114 (c) of the Statute. 1 We hold that Provision 6 and Provision 5 except for sections l.B., 5.B., 10, 12, and the first sentence of 5.A. are within the duty to bargain. We also find Provisions 2, 3, 4, and Sections l.B., 5.B., 10, 12 and the first sentence of 5.A. of Provision 5 are outside the duty to bargain.

II. Provision 1

The Members have expressed different views concerning Provision 1. The Decision and Order on Provision 1 and Chairman Calhoun's separate opinion immediately follow the Decision and Order in this case. 

III. Provision 2

The text of the provision is set forth in Appendix A to this decision. Only the underlined portions of the provision are in dispute.

A. Positions of the Parties

Provision 2 concerns the composition of merit staffing panels which advise selecting officials by rating and ranking candidates for selection for promotion. The Agency contends that the provision interferes with its rights to assign work and to determine the personnel by which its operations are to be conducted under section 7106(a)(2)(B) of the Statute.

The Union maintains that the "opt out" clause in the second paragraph prevents Provision 2 from infringing upon management's rights. In addition, the Union asserts that the purpose of the provision is to ensure fair and objective evaluations.

B. Analysis

It is clear that employees appointed to ranking panels are performing work for the Agency and that their selection involves a work assignment by the Agency to the selected individuals. The Authority has consistently held that proposals which interfere with management's right to assign work are outside the duty to bargain under section 7106(a)(2)(B) of the Statute and that the right to assign work includes the discretion to determine "the particular employees to whom or positions to which (work) will be assigned." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).

In agreement with the Agency, we find that the disputed portions of the provision would restrict management's ability to select individuals to serve on ranking panels. The first paragraph of Provision 2 would require the Agency to select individuals from all levels of the workforce, one personnel specialist, and a subject matter expert. The second paragraph of the provision would, under most circumstances, require the Agency to select panel members from organizational segments other than those supervised by the selecting official. The disputed language in the third paragraph prohibits the Agency from selecting a Union officer or steward and an employee at a lower grade level than the position to be filled as members of a ranking panel. In effect, Provision 2 prevents management from assigning duties to particular employees. Thus, Provision 2 would directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Federation of Federal Employees, Locals 1707, 1737 and 1708 and Headquarters, Louisiana Air and Army National Guard, New Orleans, Louisiana, 9 FLRA 148 (1982) (proposal designating particular management officials to rating and ranking panels nonnegotiable); National Treasury Employees Union and Department of the Treasury, 21 FLRA No. 123, slip op. at 7-8 (1986) (provision prohibiting selecting official from serving on ranking panel nonnegotiable).

As to the Union's contention that Provision 2 contains an "opt out" clause, thereby rendering it negotiable, we find this contention to be without merit. The clause which the Union refers to applies only to the second paragraph of the provision. Furthermore, it would permit the Agency to "opt out" of its requirement that panel members not be from the same organizational segment supervised by the selecting official only under the limited circumstance that the requirement would preclude the Agency from including on the panel a qualified subject matter expert. This clause is inadequate to substantiate the Union's claim that management's rights would not be substantively restricted by the provision.

C. Conclusion

Based on the reasons and cases cited in the foregoing analysis, we conclude that Provision 2 is outside the duty to bargain under section 7106(a)(2)(B) of the Statute.

IV. Provision 3

Article 14, Section 2 A.:

The Service agrees that an employee who is detailed to a position of higher grade for more than thirty (30) consecutive calendar days will be temporarily promoted. To receive the higher rate of pay, however, the employee must satisfy requirements of law and/or government-wide regulation. The Service also agrees to refrain from rotating assignments of employees solely to avoid compensation at the higher rate. (Only the underlined portion is in dispute.) 

A. Positions of the Parties

The Agency contends that Provision 3 interferes with its right to assign employees, under section 7106(a)(2)(A) of the Statute. The Union contends that the provision, because it contains the word "solely," would not prevent management from rotating assignments. In its view, this provision is merely a mechanism to enforce other provisions of the parties' agreement.

B. Analysis

In National Treasury Employees Union and Department of the Treasury, 21 FLRA No. 123 (1986) (Provision 8), the Authority found a provision nonnegotiable which was identical to the language of the disputed portion of the provision in this case. In Department of the Treasury, the union argued that the provision did not violate management's right to assign work because management would retain the discretion to detail employees for any reason other than to avoid paying employees higher compensation. The Authority rejected the union's argument holding that the provision substantively restricted management's right to rotate employee assignments. Thus, based on Department of the Treasury, Provision 3 is outside the duty to bargain under section 7106(a)(2)(A) of the Statute. See also National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243, 247 (1984) (Provision 2).

We note also that the Union argues that Provision 3 is merely a mechanism to enforce other provisions of the parties' agreement. However, the Union does not designate which parts of the agreement Provision 3 affects. If the union is referring to the undisputed portion of Provision 3, it would be a mechanism over which the Agency has no duty to bargain because of its substantive interference with the Agency's right to assign employees.

C. Conclusion

For the reasons stated above, Provision 3 is outside the duty to bargain because it interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

V. Provision 4

The text of the provision is set forth in Appendix A to this decision. 

A. Positions of the Parties

The Agency contends that this provision, which concerns aspects of its performance appraisal system, violates management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In response, the Union contends that the provision does not infringe upon management's rights because it merely incorporates Office of Personnel Management (OPM) regulations.

B. Analysis

Section 5 of Article 15 would establish five rating levels for the appraisal of an employee's performance in each critical element and for evaluating overall performance. Section 8E of Article 15 defines these levels. The Authority has consistently held nonnegotiable proposals similar to Provision 4 which also established the number of rating levels and criteria for performance evaluation. Such proposals are outside the duty to bargain because they directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. American Federation of State, County and Municipal Employees, AFL - CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578, 580-81 (1984). See also 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, slip op. at 3-4 (1987) (Provision 2); National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers, 14 FLRA 283, 287 (1984) (Proposal 3).

The Union argues that the provision does not infringe on management's rights because it merely incorporates 5 C.F.R. 430.405(h), which requires that each appraisal system shall provide for five summary rating levels. The Union's contention cannot be sustained. In National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 577 (1981) (Proposal 1), aff'd sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), the union argued that a part of a proposal was negotiable because it merely reiterated the restrictions contained in an Office of Management and Budget (OMB) circular which prescribed general policies for contracting out. The Authority stated that the incorporation of specific contractual terms would have required management to comply with those terms regardless of whether OMB subsequently revised or eliminated the directives from which they were taken. Thus, the proposal would have imposed an independent contractual requirement upon management's discretion with respect to contracting out and would have interfered with management's rights under the Statute.

In this case, we find that even if the provision accurately reflects an OPM regulation, it would require the Agency to comply with that regulation as a matter of contract, regardless of whether OPM revised or eliminated the regulation. The provision would impose an independent contractual requirement on management's discretion to direct employees and assign work, and, therefore, is inconsistent with section 7106(a)(2)(A) and (B) of the Statute. See also National Treasury Employees Union and Department of Energy, 19 FLRA 224, 232 (1985) (Proposal 3).

C. Conclusion

For the reasons and cases cited in the foregoing analysis, Provision 4 directly interferes with management's right to direct employees and to assign work, under section 7106(a)(2)(A) and (B) of the Statute. Accordingly, the provision is outside the duty to bargain.

VI. Provision 5

The text of the provision is set forth in Appendix A to this decision.

A. Positions of the Parties

Provision 5 would include reduction-in-force (RIF) requirements, many of which are based on Government-wide rules and regulations at 5 C.F.R. Part 351, in the parties' negotiated agreement. In addition, it would provide that the union receive certain information, such as the anticipated date of a RIF and the reasons for it, if a RIF action were undertaken by the Agency. Some sections, for example sections 4.D. and 9.A., would provide procedures that the Agency would be obligated to follow in a RIF.

The Agency argues that the incorporation of Government-wide RIF regulations into the contract is outside the duty to bargain. Relying on prior Authority decisions, the Agency asserts that the incorporation of RIF regulations would impose an independent contractual requirement on management in violation of management's section 7106(a)(2)(B) rights. In addition, without specifying the sections to which it is  referring, the Agency contends that Provision 5 is non-negotiable because it violates management's rights under section 7106(a). In general, the Agency asserts that the provision would violate management's rights to determine the number of its employees under section 7106(a)(1); take personnel actions under section 7106(a)(2)(A); determine the personnel by which its operations are to be conducted under section 7106(a)(2)(B); and make selections under section 7106(a)(2)(C) of the Statute. Finally, the Agency specifically argues that three sections of Provision 5--application of RIF rules to reclassification following a change in duties (Section l.B.), an employee's entitlement to additional service credit (Section 5.A.), and the amount of additional credit based on performance ratings (Section 5.B.)--conflict with RIF regulations.

The Union's sole argument is that Provision 5 is within the duty to bargain because the Statute gives a labor organization the right to negotiate over Government-wide rules and regulations if a proposal does not restrict current regulations in any way. In support, the Union asserts that section 7116(a)(7) of the Statute allows parties to negotiate on existing regulations and requires that an agency adhere to any resulting agreement even after differing regulations are adopted. The Union also states that the Agency has failed to demonstrate specifically how the provision violates management's section 7106(a) rights.

B. Analysis

1. Provision in General Is Not Inconsistent with Management's Rights

Initially, we note that the parties bear the burden of creating a factual record sufficient for the Authority to resolve the negotiability dispute. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). In this case, although the Agency alleges that its rights under section 7106(a)(2) are violated by the provision, it fails to indicate which sections directly interfere with management's rights and in what manner.

A careful review of Provision 5 reveals that, except for those sections determined to be inconsistent with the Statute or Government-wide regulations for the reasons discussed in B.2. below, the provision merely recognizes an external limitation set out in 5 C.F.R. Part 351 and imposes no substantive limitation on management rights. Compare Defense Logistics Agency Council of AFGE Locals, AFL - CIO and Department of Defense Logistics Agency, 24 FLRA No. 40, slip op. at 8 (1986) (Provision 4) (proposal reiterating prohibition on contractor personnel supervising Federal employees found nonnegotiable because it imposed substantive limitation). Thus, contrary to the Agency's general assertion, and except for those sections found to conflict with the Statute or Government-wide regulations in B.2. below, Provision 5 is within the Agency's duty to bargain.

2. Sections Inconsistent with Statute or Government - Wide Regulations

a. Section 1.B.

We agree with the Agency's contention that including reclassification due to a change in duties within the definition of a RIF action conflicts with 5 C.F.R. 351.201(a)(2). That section provides that reclassifications due to erosion of duties are covered "when such action will take effect after an agency has formally announced a reduction in force in the employee's competitive area and when the reduction in force will take effect within 180 days." Thus, the definition in Section 1.B. is overly broad and would directly interfere with management's right to take personnel actions in section 7106(a)(2). In these circumstances, we find that Section 1.B. is outside the duty to bargain under section 7117(a)(1). See also FPM Letter 351-20, 2-4. at 15-18 (Mar. 4, 1986) (discussing applicability of RIF procedures when the grade of a position is reduced).

b. First Sentence in Section 5.A.

The first sentence in Section 5.A. would provide that an employee's additional service credit for performance be based on an employee's current official performance appraisal. We agree with the Agency that this sentence conflicts with regulations controlling RIF actions. The regulations require that additional service credit be based on the employee's last three annual performance ratings of record during the 3-year period prior to the date of issuance of specific RIF notices. 5 C.F.R. 351.504(b) (1987). Thus, we find that the first sentence in Section 5.A. conflicts with a Government-wide regulation and is outside the duty to bargain under section 7117(a)(1). 

c. Section 5.B.

Section 5.B. would provide that employees receive 4 years of creditable service for an "Outstanding" rating and 2 years for "Excellent" ratings. These years of additional credit conflict with the service credit allowed in governing RIF regulations which provide for 20 additional years of service for each performance rating of "Outstanding" or equivalent, 16 years for each "Exceeds Fully Successful" or equivalent rating and 12 years for each fully successful or equivalent rating. 5 C.F.R. 351.504 (1987). Therefore, in agreement with the Agency, we find that Section 5.B. is outside the duty to bargain under section 7117(a)(1) as it conflicts with a Government-wide regulation.

d. Section 8

The first part of Section 8 would require that the Agency search for appropriate vacancies during a RIF action and consider qualified employees who are affected by the RIF for positions before it releases any employees. Section 8 clearly prevents the Agency from filling unit vacancies from outside FMS if there are qualified employees available who will be laid off. Insofar as Section 8 merely requires the Agency to search for appropriate vacancies and consider qualified employees it would not interfere with management's rights. See National Federation of Federal Employees Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA 361, 365 (1981) (Proposal IV) (proposal negotiable which established area of consideration for bargaining unit positions).

On the other hand, it would violate management's right to select to the extent it would preclude filling vacant positions from outside the bargaining unit if bargaining unit employees are facing separation and are qualified. Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66, slip op. at 19-20 (1987) (Proposal 5), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987). This restriction on management's right to select is not altered by the qualifying language "absent just cause." The effect of this language is simply to subject to arbitral review management's decision to fill a vacancy from outside FMS. See National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65, slip op. at 4 (1987) (Proposal 1). Thus, Section 8 violates management's right to select which is reserved under section 7106(a)(2)(A). 

However, Section 8 is intended as an appropriate arrangement for employees adversely affected by management's decision to conduct a RIF. In this respect, it is to the same effect as Provision 32 found to be an appropriate arrangement in International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9, slip op. at 28-30 (1987). Provision 32 in that case required the agency to eliminate recruitment efforts and fill vacancies with qualified employees who were affected by the RIF. We found that Provision 32 was a negotiable appropriate arrangement because the agency retained discretion to determine whether the employees who would otherwise be separated were qualified to fill the vacant positions and, if not, to hire from outside the agency. Moreover, it is clear that FPM Requirement 4 does not apply. See National Treasury Employees Union and Department of Energy, 24 FLRA No. 52 (1986). Thus, based on Bureau of Engraving and Printing and the cases cited therein, we find here that Section 8 is an appropriate arrangement and within the duty to bargain.

e. Section 10

The intent of Section 10 is unclear. However, assuming the Union intends that section to prevent the Agency from deciding to waive Office of Personnel Management requirements for particular positions, it is outside the duty to bargain as it is contrary to 5 C.F.R. 351.703. That section provides that an agency may waive qualifications if an employee meets any minimum educational requirements for a position and the agency determines that the employee has the capacity, adaptability, and special skills necessary to satisfactorily perform in the position. See also FPM Letter 351-20, 5-9 at 63 (Mar. 3, 1986). Moreover, Section 10, read as an absolute prohibition on management's right to determine a candidate's qualifications, clearly violates management's right to select under section 7106(a)(2). See National Federation of Federal Employees, Local 1450 and U.S. Department of Housing and Urban Development, 23 FLRA No. 1 (1986) (provision nonnegotiable which required agency to select employees affected by a RIF without a management determination of requisite qualifications if they met minimum standards for vacancies). See also National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA No. 105 (1986).

f. Section 12

Section 12 would permit bargaining unit employees to appeal an effected RIF action only to the Merit Systems Protection Board (MSPB). The Statute permits the parties to exclude RIF actions from the negotiated grievance procedure under section 7121(a). However, under section 7121(d) an employee may choose to appeal discrimination complaints which are part of personnel actions appealable to MSPB through an agency's EEO complaints process. 5 C.F.R. 1201.154(c) (1987). Since Section 12 does not state this right, it is inconsistent with Statute and therefore outside the duty to bargain under section 7117(a)(1). See American Federation of Government Employees, AFL - CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA No. 1, slip op. at 20-21 (1987) (Provision 14) (proposal omitting an applicable appeal right to EEOC held nonnegotiable).

C. Conclusion

We hold that Sections 1.B., 5.B., 10 and 12 and the first sentence of 5.A. are outside the duty to bargain under section 7117(a)(1) of the Statute because they conflict with statute or Government-wide regulations governing RIFs. Additionally, we find that Section 10 is nonnegotiable because it violates management's right to assign and select under 7106(a)(2). We also find that while Section 8 is inconsistent with management's right to select, it is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In view of the Agency's failure to specify how its rights are violated by the remaining sections of Provision 5, we find these sections are within the duty to bargain.

VII. Provision 6

Article 26, Section 9B:

Upon written request, the Service will provide the Union with information as to the availability of Office of Personnel Management training in this area. The Service agrees to nominate one (1) union representative to attend one (1) Office of Personnel Management course in this field two (2) to three (3) workdays during the life of this agreement without charge to annual leave or leave without pay; provided, however, that the Union reimburse the Service for any expenses or charges, and that the Union representative has given the Service his/her written request at least three (3) work weeks in advance, attendance being subject to severe workload requirements. (Only the underscored portion is in dispute.) 

A. Positions of the Parties

The Agency contends that the disputed portion of the provision conflicts with its right under section 7106(a)(2)(B) of the Statute to assign work because it involves a training assignment. Further, because the right to assign work includes the right to determine who will perform it, the Agency argues that the provision interferes with its rights by requiring that a Union representative be trained.

The Union states that its intent is to negotiate official time under section 7131(d) of the Statute for Union representatives to take OPM courses concerning employee assistance programs. The Union points out that knowledge of the employee assistance program is essential because the Union has agreed in its collective bargaining agreement with the Agency that it will cooperate fully with management in its attempts to rehabilitate employees who accept assistance under employee assistance programs. Further, the Union asserts that issues related to alcoholism and drug abuse frequently arise during Union representation of employees against whom management has taken conduct and performance actions.

B. Analysis

Provision 6 would require the Agency to grant a Union representative official time to attend an OPM course about employee assistance programs. Contrary to the Agency's assertions, the provision does not require the Agency to provide training. In fact, it states that the Union will pay any expenses incurred by the attendance of a Union representative at a course. Thus, the issue is whether a Union representative's attendance at an employee assistance program meets the requirements for negotiation of official time in section 7131(d) of the Statute, that is, whether the time is for labor-management related representational activity. 2 National Archives and Records Administration and American Federation of Government Employees, Council 236, Local 2928, 24 FLRA No. 29, slip op. at 3 (1986). See also AFGE, Local 2096 v. FLRA, 738 F.2d 633, 637 (4th Cir. 1984), aff'd U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731 (1983).

In analyzing this issue, two factors which the Union raises are significant. First, the parties agreed in Article 26, section 9A of their contract as follows: "the Union agrees to cooperate fully with the Service in its attempt to rehabilitate employees who accept assistance made available under provisions of this program." Reply Brief, Attachment 7. As the Union points out, knowledge of employee assistance programs is essential to meeting this contractual obligation. Second, the question of an employee's need for counseling or participation in employee assistance programs frequently arises in the context of performance and conduct actions in which the Union is representing an employee.

Therefore, we conclude that a Union representative's attendance at an employee assistance course on official time would be a representational activity because it would assist the Union in meeting its labor-management responsibilities. International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9, slip op. at 25-26 (1987) (Provision 29) (provision designating bargaining unit employee to serve on an equal employment opportunity committee held negotiable as a procedure for carrying out statutory labor-management responsibilities); American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (proposal held negotiable which authorized official time to union representatives participating in activities with management officials concerning the performance appraisal system). Compare American Federation of Government Employees, Local 2094, AFL - CIO and Veterans Administration Medical Center, New York, New York, 19 FLRA 1027 (1985) (Proposals 2 and 3) (proposals nonnegotiable which granted official time to bargaining unit employees for testing or interviews at Federal agencies and meeting with members of Congress about job-related matters).

Section 7131(d) of the Statute specifically provides that negotiations are appropriate for the amount of official time available to employees to conduct representational activities. This provision creates an exception to management's right to assign work. Military Entrance Processing Station, Los Angeles, California and American Federation of Government Employees, Local 2866, AFL - CIO, 25 FLRA No. 57, slip op. at 4 (1987). 

C. Conclusion

For the reasons and cases cited in the foregoing analysis, the provision does not conflict with section 7106(a) (2)(B) of the Statute and is within the duty to bargain.

VIII. Order

The Agency shall rescind its disapproval of Provision 6 and all of Provision 5, except Sections 1.B., 5.B., 10, and 12 and the first sentence of Section 5.A., which were bargained on and agreed to by the parties at the local level. 3 The petition for review relating to the provision about which the Agency withdrew its allegation of nonnegotiability and Provisions 2, 3, and 4, and Sections 1.B., 5.B., 10, and 12 and the first sentence of 5.A. of Provision 5 is dismissed.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

DECISION AND ORDER ON PROVISION 1

I. The text of the provision is set forth in Appendix A to this decision. Only the underlined portions of the provision are in dispute.

A. Positions of the Parties

The Agency contends that this provision is nonnegotiable under section 7106(a) of the Statute because it interferes with management's right to select. It also contends that the provision conflicts with 5 U.S.C. 2301(b)(1) and implementing regulations in the Federal Personnel Manual (FPM). In addition, the Agency argues that Provision 1 conflicts with an Agency-wide regulation for which there is a compelling need.

The Union asserts that the provision is consistent with Authority precedent as well as with 5 U.S.C. 2301(b)(1) and Government-wide regulations cited by the Agency. In addition, the Union contends that the Agency has not met its burden of establishing a compelling need for its regulation.

B. Analysis

1. Not Inconsistent with Management's Right to Select

Provision 1 would require that the Agency give first consideration to Financial Management Service (FMS) employees before considering candidates from other sources when it is making selections under section 2A of Article 13. As the Agency recognizes in its Statement of Position, the Authority has consistently held that proposals which require only that consideration be given to employees within the bargaining unit in filling vacancies, but which do not prevent management from considering other applicants or expanding the area of consideration once bargaining unit employees have been considered, do not interfere with management's right to select from any appropriate source. Association of Civilian Technicians, New York State Council and State of New York. Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475, 477 (1983) (Proposal 1); Association of Civilian Technicians, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA 77 (1980).

The Agency argues that the use of the word "first" before consideration is more restrictive as applications from bargaining unit employees must be considered and rejected before consideration is given to other applicants. We do not believe this factor creates a substantive limitation on management's rights because nothing in the provision would prevent the immediate consideration of outside applicants if the selecting official chose not to select a bargaining unit employee. Therefore, we conclude that the provision only establishes a procedure for management to follow in exercising its right to select. The Authority has long held that procedures which do not prevent management from acting at all are negotiable under section 7106(b) of the Statute. American Federation of Government Employees, AFL - CIO, Local 1999 and Army-Air Force Exchange Service, Dix - McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA,659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 445 U.S. 945 (1982).

2. Not Inconsistent with Statute

The Agency argues that Provision 1 violates merit systems principles established in Chapter 23 of the Civil Service Reform Act. Specifically, the Agency asserts that the provision violates 5 U.S.C. 230l by giving preference to bargaining unit employees because of their employment with FMS. The Agency notes that the statute provides that "selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity." 5 U.S.C. 2301(b)(1).

Provision 1, in our view, does not establish FMS employment as a criteria for selection. Rather, it simply requires that the initial area of consideration will be bargaining unit employees. Nothing in the Provision limits the area of consideration; management may immediately expand the area if it chooses not to select an FMS employee. We note that the FPM does not limit an agency's discretion to establish the area of consideration. The regulation requires only that "(a)reas of consideration must be sufficiently broad to ensure the availability of high quality candidates(.)" FPM chapter 335, subchapter 1-4, Requirement 2 (May 7, 1981). Management, therefore, has total discretion to expand the area of consideration beyond FMS. In fact, the union emphasizes that the Agency may select a non-unit candidate, stating only that "before this is done Service employees must first be considered--a qualified in-house candidate need not be selected." Reply Brief at 2. Finally, nothing in Provision 1 requires that a selection be made on  the basis of anything other than job-related criteria. In these circumstances, we conclude that Provision 1 is not inconsistent with statute or implementing regulations.

3. No Compelling Need Exists for the Agency's Regulation

The Agency asserts that Provision 1 conflicts with a Treasury regulation, TPMM chapter 335, II.3.b., 4 for which there is a compelling need. That regulation requires Treasury bureaus to accept and consider the applications of current employees of other bureaus. The Agency argues its regulation implements the requirement for a broad area of consideration in the Federal Personnel Manual which is based on merit system principles. Further, the Agency argues that there is a compelling need for the regulation because it enables the Agency to meet its mandate to provide equal employment opportunities as required by 5 C.F.R. 300.103(c) and 29 C.F.R. Part 1613. 5

The Authority has held that an agency's regulation can bar negotiations on a conflicting Union proposal only if a compelling need exists for that regulation under section 7117(a)(2) of the Statute and section 2424.11 of its Regulations. In American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104, slip op. at 11 (1986) (Proposal 7), the Authority stated that in order to show a compelling need for an agency regulation, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need.

In this case, the Agency has not established that TPMM chapter 335, II.3.b. conflicts with Provision 1. As discussed above, Provision 1 would not preclude the Agency from accepting and considering the applications of current employees in all the Agency's bureaus or otherwise limit the Agency's discretion to select from any other appropriate source. Furthermore, there is nothing in the provision that requires the Agency to act in any manner inconsistent with its equal employment opportunity mandate. Finally, even assuming the Treasury regulation conflicted with Provision 1, the Agency has not established that the regulation implements its equal employment opportunity obligations. In these circumstances, we find the Agency's regulation is not a bar to negotiations on Provision 1.

C. Conclusion

Based on the reasons and cases cited in the foregoing analysis, we conclude that Provision 1 does not conflict with management's rights under section 7106(a)(2)(C) of the Statute, nor is it inconsistent with law or Agency-wide regulations. Therefore, Provision 1 is within the duty to bargain.

II. Order

The Agency shall rescind its disapproval of Provision 1 which was bargained on and agreed to at the local level. 6

Issued, Washington, D.C., September 30, 1987.

Henry B Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Concurring opinion of Chairman Calhoun on Provision 1

Provision 1 would require that the Agency give first consideration to Financial management Service (FMS) employees before considering candidates from other sources when it is making selections under section 2A of article 13. My colleagues conclude that the provision is negotiable as a procedure under section 7106(b)(2) of the Statute. I agree. Further, in my view the provision is different from ones which I previously found to be nonnegotiable.

In National Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986), petition for review filed sub nom. Department of the Treasury v. FLRA, No. 87-1084 (D.C. Cir. Feb. 13, 1987), the provision in dispute stated that if a unit employee was not selected, other employees could not be submitted to the selecting official for 10 days. In my opinion in that case, I concluded that the provision was nonnegotiable because it violated the agency's right to select. As I interpreted the provision, if the agency determined that it was necessary to fill a position in fewer than 10 days, the provision would require the agency to either (1) select a unit employee, in violation of its right to select; or (2) wait 10 days to make a selection, which would be inconsistent with its determination that its mission required an immediate selection.

Subsequently, in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA No. 60 (1987), petition for review filed sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 87-1234 (D.C. Cir. May 29, 1987), I reached the same conclusion concerning a proposal which prevented the agency from soliciting, ranking, or considering applications from outsiders until bargaining unit employees had been considered. I stated that while first consideration, standing alone, would be a negotiable procedure, a proposal such as the one in that case would directly interfere with the agency's right to make selections because, in my view, that right includes the right to select immediately if necessary for the efficient functioning of the agency.

There is nothing in the record of this case to show that Provision 1 would prevent the agency from immediately considering outside applicants if it did not select a unit employee after first consideration. The Union emphasizes that the agency could select a non-unit candidate, stating only that "before this is done, Service employees must first be considered--a qualified in-house candidate need not be selected." Union Response at 2. Therefore, consistent with my opinion in Bureau of Alcohol, Tobacco and Firearms, I conclude that Provision 1 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. Accordingly, I concur in the result reached by my colleagues.

Issued, Washington, D.C. September 30, 1987.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX A

Provision 1

Article 13, Section 3:

The service reserves the right to make a selection from any appropriate source. However, the Service agrees that all covered actions as specified in Section 2(A) of this Article will be announced among Service employees in accordance with Section 4 of this Article and that first consideration for selection will be given to Service employee, prior to considering other than Service employees.

Article 13, Section 10 B. 1. a.

The Best Qualified candidates (those referred to the Selecting Official) will be determined as follows:

First Consideration:

If the evaluation process produces 3 to 5 Highly Qualified candidates from within the service, those candidates will be certified to the Selecting Official in alphabetical order on a Ranking and Selection Report for first consideration.

Provision 2

Article 13, Section 8 B.:

Merit Staffing Panels act in an advisory capacity to the Selecting Official. Panels will be selected by the Service from all levels of the workforce and will consist of at least three (3) voting members (one of whom must be a subject matter expert) and a fourth, non-voting member from the servicing Personnel Office.

Such panel members will not normally be from the same organizational segment supervised by the selecting official, unless this would preclude the Service appointing to the Panel a qualified subject matter expert from within the Service.

The service agrees to continue its policy of seeking to establish merit Staffing Panel composition that includes minority group members, non-minority group members, women and men as appropriate. No Union officer or steward shall be a member of any Merit Staffing Panel. Voting Panel members must be at least the same grade level as the position to be filled.

Provision 4

Article 15, Section 5

A. 1. There will be five (5) performance levels for rating purposes. These will be outstanding, excellent, fully successful, marginal, and unsatisfactory (see Section 8).

2. Standards for elements will be established at the excellent, fully successful, and marginal levels.

B. Performance on each element will be rated as outstanding, excellent, fully successful, marginal or unsatisfactory.

1. If the Service defines a critical element as consisting or more than one (1) act or task, then in arriving at the performance rating for the element due consideration will be given to the level of performance on all acts or tasks within the element.

2. In arriving at the performance rating for an element, due consideration will be given the level of performance on all criteria that combine to constitute the standard.

C. Total performance will be given overall summary rating of outstanding, excellent, fully successful, marginal, or unsatisfactory as defined in Section 8.

Article 15, Section 8 E.:

E. At the conclusion of the annual appraisal period, the rating official will prepare the annual  appraisal of performance. A written assessment will be prepared describing the employee's performance against the elements and standards. The rating official will assign one of the performance rating levels defined for each critical and non-critical element included in the employee's performance plan:

Outstanding: That level of performance that FAR EXCEEDS the requirements of acceptability in a demonstrable way. It is that level of performance which exceeds the excellent standard.

Excellent: That level of performance that SIGNIFICANTLY EXCEEDS the requirements of acceptability in a demonstrable way. It is that level of performance which exceeds the fully successful standard.

Fully Successful: That level of performance that is at the ACCEPTABLE LEVEL OF COMPETENCE. It is that level of performance which fully and completely accomplishes the work.

Marginal: That level of performance that NEEDS IMPROVEMENT and is NOT an acceptable level of competence. Marginal performance in one or more critical elements will be the basis for withholding the employee's within-grade increase.

Unsuccessful: That level of performance in which work falls below the marginal standard. Unsuccessful performance in one or more critical elements will be the basis for withholding the employee's within-grade increase and may be the basis for reassigning, reducing in grade, or removing the employee.

Provision 5

Article 16: Reduction-In-Force

Section 1 General Information

A. The Parties agree that reduction-in-force (RIF) actions affecting unit employees will be conducted in accordance with law, regulation, current Office of Personnel Management (OPM), Departmental, and Service policies and procedures, and the provisions of this Article. 

B. For purposes of this Article, reduction-in-force is defined as the release of an employee from his/her competitive level by separation, demotion, furlough for more than thirty (30) calendar days, or reassignment requiring displacement when lack of work or funds, reorganization, reclassification due to a change of duties, or the need to make a place for a person exercising re-employment or restoration rights requires the Service to release an employee.

Section 2 Notice

A. The Service agrees to provide the Union with notification of a potential reduction-in-force as far in advance as possible before the issuance of the first notice to employees.

B. The notice to the Union will include at least:

1. The anticipated date of the RIF.

2. The numbers and names of potentially affected employees by position and grade levels.

3. The specific reasons for the RIF.

4. Any available statistics on the Service's anticipated attrition rate in the affected area prior to the effectuation of the RIF actions.

C. The Union will also be provided with updated information concerning RIF actions as soon as such information becomes available including, but not limited to, additional positions affected, the names of affected employees, revised dates, listings of job offers made, etc.

D. The Service will consider and pursue alternatives in an effort to avoid the need to release any bargaining unit employee from his/her competitive level.

E. Upon receipt of written notice from the Service of a potential reduction-in-force, the Union will  notify the Service in writing of its intention to request to negotiate on the impact and implementation of the RIF. Such notice and negotiations will be conducted in accordance with the timeframes and procedures contained in Article 5, Labor Management Negotiating Procedures.

Section 3 Competitive Areas

A. As determined by the Service for purposes of reduction-in-force, the Headquarters and each Financial Center are separate and complete competitive areas.

B. The Service reserves the right to change or modify the above designated competitive areas due to organizational changes or needs. In the event the Service changes the competitive areas designated above, the Union will be notified and provided the reasons for such changes in accordance with the provisions of Article 5, Labor Management Negotiating Procedures.

Section 4 Competitive Levels

A. Competitive levels will be determined by the service in accordance with law, regulation, and OPM, Departmental and service policies and procedures.

B. The Service will take no RIF action until every affected position in the area is assigned to a competitive level.

C. For purposes of determining competitive levels, undue interruption is defined as a degree of interruption that would prevent the completion of the required work within the allowable limits of time and quality. Depending upon the priorities, deadlines, and other demands at the time of the creation of the competitive level, the ordinary work program would not be unduly interrupted if the optimum quantity and quality of work were regained within ninety (90) days after the reduction-in-force.

D. The Union will be provided an opportunity to review an unsanitized copy of the retention  register for those competitive levels affected by the reduction-in-force within five (5) workdays prior to the issuance of the general notice of a RIF to affected employee(s) and when the notice is issued.

Section 5 Length of Service/Credit for Performance

A. Employee's current official performance appraisal of record as of the date of issuance of a specific notice is the appraisal that will be used in determining his/her retention standing. Performance appraisals that were due on or before the issuance of the specific notice, but were not officially approved and put on record, will be approved and put on record before the issuance of the specific notice. When completed this appraisal must be included in the employee's OPF at least two (2) workdays prior to the issuance of the specific notice. However, in no event may an appraisal delay the issuance of a specific notice.

B. Additional service will be credited based on an employee's performance appraisal of record in accordance with OPM, Departmental, and Service rules and regulations. Employees with a current rating of outstanding will receive an additional four (4) years of creditable service. Employees with an excellent rating will receive an additional two (2) years of service.

Section 6 Records

A. The Service will maintain all records at least two (2) years for career employees and one (1) year for career conditional employees. If an employee alleges discrimination in his/her RIF appeal the records will be maintained for the period of the appeal plus one (1) year.

B. Each affected employee and/or his/her union representative shall have the right to inspect retention records and other records. His/her representative is entitled to use Chapter Bank time as provided in Article 9, Section 5, of Union Rights and Representation. 

Section 7 Notice to Employees

Affected employees will receive notice 30 calendar days prior to the effective date of the RIF. Two (2) copies of the specific RIF notice will be given to each employee. The specific notice to employees will state the following information:

1. The action to be taken and the effective date;

2. competitive area;

3. competitive level;

4. group and subgroup;

5. service computation date;

6. information explaining how and where the employee may examine retention registers and other records;

7. appeal rights; and

8. where to apply for the Displaced Employees Program.

The notice will also include any other applicable information such as retirement, severance pay, grade and pay retention, and outplacement programs.

Section 8 Existing Vacancies

A. To minimize the adverse effect of RIF on employees, the Service will search within the competitive area for appropriate vacancies. The service will consider affected qualified employees for vacant positions before releasing any employee. Unit vacancies will not be filled from outside the Service, absent just cause, if employees facing separation are qualified and available for such vacancies. In the event that an employee has any question as to his/her right to an available position, or to his/her right of  consideration for a vacancy, that employee may request an explanation from the servicing Personnel Office.

Section 9 Retention/Reassignment

A. Where an affected employee is given a job offer, he/she will be given a reasonable amount of time to respond. Under no circumstances will the response time be more than one (1) week for an in-town position and three (3) weeks for a relocation position. For good cause shown the employee may receive more time to respond.

Section 10 Waiver

No service waivers of qualifications will be granted in any circumstances.

Section 11 Retirement

When the Service identifies positions that will be RIF'ed, it will follow the OPM regulations and criteria for requesting early-out retirement.

Section 12 Appeal

Bargaining unit employees may only appeal an effected RIF action to the Merit Systems Protection Board. 

APPENDIX B

2/ Section 7131(d) provides: Except as provided in the preceding subsections of this section--

(1) any employee representing an exclusive representative, or

(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.

4/ TPMM, chapter 335, subsection II. 3.b. provides in relevant part:

Except for their CADE (upward mobility) programs, all bureaus must accept and consider the voluntary application of any current employee of any other Treasury bureau . . . who makes specific application.

5/ 5 C.F.R. 300.103(c) provides that:

An employment practice shall not discriminate on the basis of race, color, religion, sex, age, national origin, partisan political affiliation, or other non-merit factor.

29 C.F.R. 1613.202 provides, in relevant part:

It is the policy of the Government of the United States and the government of the District of Columbia to provide equal opportunity in employment for all persons . . . (.)

 

FOOTNOTES

Footnote 1 The Agency withdrew its allegation of nonnegotiability concerning an additional provision, and it will not be considered further here.

Footnote 2 See Appendix B for the text of section 7131(d) of the Statute.

Footnote 3 In deciding that these matters are within the duty to bargain, the Authority makes no judgment as to their merits.

Footnote 4 See Appendix B for the text of this Treasury regulation.

Footnote 5 See Appendix B for the text of these regulations.

Footnote 6 In deciding that these matters are within the duty to bargain, we make no judgment as to their merits.

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