32:0502(73)CA - - Federal Emergency Management Agency and NFFE Local 1983 - - 1988 FLRAdec CA - - v32 p502



[ v32 p502 ]
32:0502(73)CA
The decision of the Authority follows:


32 FLRA No. 73

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

FEDERAL EMERGENCY MANAGEMENT AGENCY
Respondent

and 

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1983
Charging Party

Case No. 3-CA-70640

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The complaint alleges that the Federal Emergency Management Agency (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith with the National Federation of Federal Employees, Local 1983 (NFFE) over a proposal made by the NFFE in response to the Respondent's notice of its intent to issue a revised Performance Management Plan (the PMP).

The Respondent contends that NFFE's proposal is not consistent with the PMP, an Agency regulation for which a compelling need exists, and that NFFE's proposal is, therefore, nonnegotiable. We find that under section 7117(b) of the Statute, issues concerning whether a compelling need exists for an agency regulation may not be resolved in an unfair labor practice proceeding. Rather, these issues may be resolved only in a negotiability proceeding. Therefore, we dismiss the unfair labor practice complaint in this case.

II. Facts

NFFE is the exclusive representative of a unit of the Respondent's employees at the National Emergency Training Center (the Center), Emmitsburg, Maryland. On March 30, June 15, June 16 and July 29, 1987, NFFE and the Respondent engaged in negotiations over the Respondent's revision of the PMP issued March 9, 1987. One portion of the PMP provides that an Incentive Awards Committee will decide whether employees who have been rated Fully Successful or higher will receive performance awards. The PMP also provides that the Incentive Awards Committee will determine the percentage amounts available to be awarded for each level of performance.

NFFE proposed that the parties negotiate on the percentage of awards to be paid at each level of performance 20 days after the end of the rating period. On August 19, 1987, the Respondent declared that NFFE's proposal was nonnegotiable. The Respondent contended that the Center comprised only 2 of the Respondent's 15 pay pools and that there was a compelling need for consistency of incentive award percentages throughout the Agency. There were no further negotiations following the Respondent's declaration of nonnegotiability.

III. Positions of the Parties

The Respondent contends that a compelling need exists for its PMP regulations insofar as they provide consistency of incentive award percentages for all of its pay pools. The Respondent argues that its mission requires uniform rates of incentive awards so that the Respondent is viewed by both its employees and the public as a unified national workforce.

The Respondent further contends that the Authority may not render a decision on the Respondent's compelling need assertion in this unfair labor practice proceeding because the sole statutory procedure for making a compelling need determination is a negotiability proceeding under section 7117(b) of the Statute. In support, the Respondent relies on U.S. Army Engineer Center v. Federal Labor Relations Authority, 762 F.2d 409 (4th Cir. 1985) (U.S. Army Engineer Center), in which the U.S. Court of Appeals for the Fourth Circuit held that the Authority may make compelling need determinations only in negotiability proceedings under section 7117 of the Statute. The Respondent also requests that the Authority stay its decision in this case until the U.S. Supreme Court issues its decision in the then-pending appeal of the decision of the Fourth Circuit Court of Appeals in Aberdeen Proving Ground, Department of the Army, No. 86-2557 (4th Cir. Jan. 28, 1987) (unreported summary reversal) (Aberdeen Proving Ground), or in the alternative, to dismiss this case as being filed in the wrong forum.(*)

The Respondent also contends that NFFE's proposal will have an impact on nonbargaining unit employees. The PMP pay pool at the Center is composed of unit and nonunit employees. The Respondent argues that it would be required to apply any percentages negotiated with NFFE to nonbargaining unit employees. The Respondent further argues that it would be required to apply such percentages to its other pay pools to assure uniformity of treatment for all of its employees.

The General Counsel contends that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with NFFE. The General Counsel argues that the Authority held a proposal which sought to establish the rate of incentive pay for bargaining unit employees to be negotiable in its Decision and Order on Remand in National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132 (1987) (Internal Revenue Service). The General Counsel asserts that NFFE's proposal in this case is to the same effect as the proposal found negotiable in Internal Revenue Service and, therefore, the Respondent's declaration of nonnegotiability constitutes a refusal to bargain in violation of section 7116(a)(1) and (5) of the Statute.

The General Counsel further argues that the Respondent has not demonstrated a compelling need for its PMP regulations as there is no demonstrated conflict between the regulation and NFFE's proposal. NFFE's proposal calls for bilateral negotiations on the percentage of incentive awards allocated to each approved level of performance, while the PMP regulation does not specify or enumerate any percentage amount applicable to approved levels of performance. The General Counsel also argues that the Respondent has not demonstrated that its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the Respondent's mission, nor has the Respondent demonstrated that NFFE's proposal is inconsistent with the Respondent's execution of its functions in a manner which is consistent with the requirements of an effective and efficient Government. Therefore, the General Counsel concludes that the Respondent has failed to demonstrate that a compelling need exists for its regulation under section 7117(a)(2) of the Statute.

IV. Analysis and Conclusion

Subsequent to the filing of the parties' submissions in this case, the U.S. Supreme Court affirmed the Fourth Circuit Court of Appeals in Aberdeen Proving Ground, and held that the Authority may not make compelling need determinations in unfair labor practice proceedings. Federal Labor Relations Authority v. Aberdeen Proving Ground, 108 S. Ct. 1261 (1988) (Aberdeen Proving Ground). In so holding, the Supreme Court agreed with the analysis and conclusion of the Fourth Circuit Court of Appeals decision in U.S. Army Engineer Center, which held that "'an examination of the history, policies, and above all, the language of the Federal Service Labor-Management Relations Act persuades us that Congress meant the § 7117(b) negotiability appeal to be the sole means of determining a compelling need question under the Statute.'" 108 S. Ct. at 1262.

When an agency alleges that it has no duty to bargain because a proposal conflicts with an agency regulation for which a compelling need exists, the Supreme Court concluded that no duty to bargain arises under the Statute until the Authority has first determined that no compelling need justifies adherence to the regulation. The Supreme Court found that section 7117(b) of the Statute is carefully constructed to achieve a balance between the rights of Federal employees to bargain collectively and the paramount interest in the effective conduct of the public's business. The Court stated that under section 7117(b), "employees are provided with a means to clarify the scope of the agency's duty to bargain; if the agency then refuses to bargain, the union may seek relief through an ULP proceeding." 108 S. Ct. at 1263. The Court noted that the procedures set out in section 7117(b) which, among other things, indicate that the General Counsel is not a party and that the negotiability appeal is presented directly to the Authority rather than first to an Administrative Law Judge, are designed to promote effective government. The Court stated further that "[m]ost importantly, requiring that compelling need be resolved exclusively through a § 7117(b) appeal allows agencies to act in accordance with their regulations without an overriding apprehension that their adherence to the regulation might result in sanctions under an ULP proceeding." Id. Thus, the Court concluded that "[t]o allow compelling need to be adjudicated in the context of an ULP proceeding, without any prior § 7117(b) negotiability appeal, would frustrate this careful balance and would disregard Congress's direction that [the Statute] 'be interpreted in a manner consistent with the requirement of an effective and efficient Government.'" Id.

Henceforth, when an agency contends that a proposal is nonnegotiable because the proposal conflicts with an agency rule or regulation for which a compelling need exists, the exclusive forum for resolving that issue is through the procedures provided for by section 7117(b) of the Statute.

The exclusivity of the section 7117(b) procedures for resolving compelling need determinations extends to all elements of such a determination--(1) whether a specific agency-wide rule or regulation is in effect; (2) whether the proposal submitted by the exclusive representative is subject to, or conflicts with, the cited agency rule or regulation; and (3) whether there is a compelling need for the rule or regulation. We find, consistent with the Supreme Court's decision in Aberdeen Proving Ground, that all of these issues must be resolved in the context of negotiability determinations made under section 7117(b) of the Statute, rather than in the context of unfair labor practice proceedings.

To the extent that previous Authority decisions hold that compelling need claims may be resolved in unfair labor practice proceedings, they are inconsistent with the decision of the Supreme Court in Aberdeen Proving Ground and with our decision here and will no longer be followed.

The Respondent contends that NFFE's proposal is inconsistent with its PMP regulations and that there was a compelling need for those regulations being uniformly applied throughout the agency. Thus, NFFE's sole recourse for challenging that determination would have been to file a negotiability appeal under section 7117 of the Statute. We note that recently, in such a negotiability proceeding, we determined that the Federal Emergency Management Agency, the Agency in this case, had not demonstrated that the proposals in dispute conflicted with the same PMP regulation involved in this case. American Federation of Government Employees, Local 3836 and Federal Emergency Management Agency, Washington, D.C., 31 FLRA 921, 930-31 (1988). Therefore, we concluded that the proposals were not barred from negotiations because they conflicted with internal agency regulations for which there was a compelling need.

Here, NFFE chose to file an unfair labor practice charge and the General Counsel issued a complaint challenging the Respondent's compelling need determination. As noted previously, all elements of a compelling need determination--including whether a proposal is subject to or conflicts with an agency regulation--must be resolved in a negotiability proceeding. Consequently, since the complaint raises an issue which may not be resolved in an unfair labor practice proceeding, we shall order that the complaint be dismissed.

V. Order

The complaint in this case is dismissed.

Issued, Washington, D.C.,

____________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY