32:0578(85)NG - - NTEU Chapter 213 and 228 and Energy, Washington, DC - - 1988 FLRAdec NG - - v32 p578



[ v32 p578 ]
32:0578(85)NG
The decision of the Authority follows:


32 FLRA No. 85

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

 

                                           NATIONAL TREASURY EMPLOYEES UNION
   
                                                         CHAPTER 213 AND 228
   
                                                                             Union

and 

UNITED STATES DEPARTMENT OF ENERGY
WASHINGTON, D.C.
Agency

Case No. O-NG-1496

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 presents issues concerning the negotiability of five provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute. The Union has withdrawn its appeal of another provision designated "Article 34; section 5." The Agency did not file a statement of position in response to the Union's petition for review.

We find that Provision 1, which merely requires the Agency to negotiate over whether existing statutory provisions concerning periodic within-grade increases will be included in the parties' agreement, is within the duty to bargain. Provision 2, which paraphrases applicable regulations concerning what constitutes an acceptable level of competence for purposes of granting within-grade increases, is within the duty to bargain because it is consistent with applicable law, rule or regulation. The first sentence of Provision 3, which requires the Agency to comply with applicable law in establishing performance standards, is within the duty to bargain. The remaining portion of Provision 3, which requires performance standards to be written in conformance with particular criteria, is outside the duty to bargain because it interferes with management's rights to direct employees and assign work. Provision 4, which provides that reassignments will be made only for mission-related reasons, is outside the duty to bargain because it interferes with management's right to assign employees. Provision 5, which prohibits bargaining unit employees from being placed under the supervision of contract employees, is outside the duty to bargain because it interferes with management's rights to assign work and to determine the personnel who will conduct agency operations.

II. Provision 1

Article 16, Section 1(A) and (B)

(A) An employee will be granted a within grade increase when the employee has completed the required waiting period and the supervisor determines that the employee has performed at an acceptable level of competence during the waiting period.

(B) The waiting period is as follows:

1. One year to move to steps 2, 3, and 4.

2. Two years to move to steps 5, 6, and 7.

3. Three years to move to steps 8, 9, and 10.

A. Positions of the Parties (1)

The Agency contends that the provision is nonnegotiable because it concerns a matter specifically provided for by statute (5 U.S.C. § 5335(a)) and, thus, is not a condition of employment. The Union contends that the provision: (1) concerns a condition of employment; (2) reflects the basic requirements of 5 U.S.C. § 5335; and (3) is consistent with relevant provisions of the Federal Personnel Manual. The Union asserts that the intent of the provision is "simply to reiterate the statutory requirements, including management's discretion, for granting a within-grade increase." Union statement of position at 5.

B. Analysis and Conclusions

Section 7103(a)(14) of the Statute provides as follows:

(14) "conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--

(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;

(B) relating to the classification of any position; or

(C) to the extent such matters are specifically provided for by Federal statute[.]

Pursuant to section 7103(a)(14), an agency has no obligation to bargain over proposals which concern matters affecting working conditions to the extent that those matters are specifically provided for by Federal statute. See for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (Proposal 1) (FDIC); Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (Proposal 1) (ACT, Wisconsin).

As the Union states, Provision 1 merely reiterates statutory requirements relating to granting within-grade increases. A finding that the provision is negotiable requires only that the Agency negotiate over whether applicable statutory provisions will be incorporated in the collective bargaining agreement. The Agency would not be required to negotiate over the substance or content of the statutory provisions. Thus, the provision does not concern the matters which are specifically provided for by statute. Rather, the provision concerns the incorporation of the intact statutory provisions in the contract. This provision is therefore distinguishable from the proposals in FDIC and ACT, Wisconsin. The proposals involved in cases such as FDIC and ACT, Wisconsin did not merely reiterate existing statutory provisions. Findings that these proposals were negotiable would have required negotiations over the substantive content of matters which were specifically provided for by statute.

In FDIC the proposal required the agency to pay all costs associated with certain medical expenses as well as the deductible costs associated with medical insurance programs. The Authority found that the employees involved were subject to the provisions of 5 U.S.C. § 8906, which establishes the amount of an agency's contribution to the cost of employee health insurance. Consequently, because the proposal sought to negotiate over agency contributions to the costs of employee health insurance, the Authority found that it concerned a matter which was specifically provided for by Federal statute and was not within the duty to bargain.

In ACT, Wisconsin, the proposal required the agency to provide sewing and laundering services to civilian technicians who were required to wear the military uniform. We found that Subchapter I of 5 U.S.C. Chapter 59 sets forth a comprehensive scheme for the payment of a uniform allowance by an agency for the maintenance of the required uniform. Because the proposal sought to require the agency to provide services relating to that maintenance of the uniform, a matter specifically provided for by Federal statute, we found that the proposal was excepted from the definition of conditions of employment under section 7103(a) (14)(C) of the Statute.

A proposal such as Provision 1 in the instant case, which is limited to incorporating existing statutory provisions in a collective bargaining agreement, does not fall within the exclusion from the definition of conditions of employment which is set forth in section 7103(a)(14)(C) of the Statute. Rather Provision 1 is similar to a proposal which requires management to take action in accordance with law. See, for example, American Federation of Government Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1), aff'd sub nom. Equal Employment Opportunity Commission v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed 476 U.S. 19 (1986). See also National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) (Proposals 2 and 3).

Based on the foregoing analysis we find that Provision 1 is within the duty to bargain.

III. Provision 2

Article 16, Section 1(C)

(C) An employee will be considered to have attained an acceptable level of competence when the employee is rated "fully satisfactory" or higher overall on the annual performance appraisal based on the performance standards which have been made known to the employee in accordance with the provisions of Article 17, Performance Standards.

A. Positions of the Parties

The Agency contends that Provision 2 violates management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute because it would require negotiations over (1) the quality of employee performance which is necessary to obtain an acceptable level of competence rating, and (2) the performance requirements for a "fully successful" overall performance rating.

The Union argues that the provision simply reiterates the provisions in 5 C.F.R. § 531.404(a), the implementing regulation for 5 U.S.C. § 5335(a). Moreover, the Union argues that the provision does not define the performance requirements for achieving a "fully successful" or a "fully satisfactory" overall performance rating. According to the Union, management retains the right to establish performance standards pursuant to Article 17 of the parties' collective bargaining agreement. Union statement of position at 6.

B. Analysis and Conclusions

We find that this provision (1) does not interfere with the Agency's rights to direct employees and assign work, and (2) reflects and is consistent with implementing regulations for 5 U.S.C. § 5335(a).

An acceptable level of competence is the necessary standard of performance which an employee must attain in order to qualify for a within-grade increase. 5 C.F.R. § 531.404(a). Provision 2 merely reiterates the requirements of these OPM regulations (5 C.F.R. § 531.404(a)), which we have held to be Government-wide regulations within the meaning of 7117(a)(1) of the Statute. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1407 (1987) (Patent and Trademark Office), petition for review filed sub nom. Patent Office Professional Association v. FLRA, Nos. 87-1824 and 88-1118 (D.C. Cir. Dec. 24, 1987). 5 C.F.R. § 531.404(a) does not restrict management's rights to direct employees and assign work by establishing performance standards because the regulation permits agencies to determine the level of performance necessary to obtain a rating of level 3 under its performance appraisal plan. The regulation states that:

To be determined at an acceptable level of competence, the employee's most recent rating of record as defined in the agency Performance Management Plan, must be at least level 3 ("Fully Successful").

Neither the regulation nor Provision 2 is concerned with what performance standards an employee must meet in order to be rated at level 3 under the Agency's performance plan. Under the regulation and the provision, the Agency-established performance standards apply. Hence, the Agency is free to define "fully successful" or "fully satisfactory" performance (the Union uses the phrases interchangeably), which determines what performance level constitutes an acceptable level of competence. Therefore, we reject the Agency's contention that the provision prescribes the level of performance necessary to attain an acceptable level of competence rating and the performance requirements for a "fully successful" or "fully satisfactory" overall rating.

A proposal which paraphrases Government-wide rules and regulations is within the duty to bargain unless the proposal directly interferes with management rights under the Statute or is inconsistent with applicable regulations. National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 588-89 and 610 (1988), petition for review filed sub nom. United States Nuclear Regulatory Commission v. FLRA, No. 88-2086 (4th Cir. Apr. 20, 1988). Provision 2 does not interfere with management's rights and is not inconsistent with applicable Government-wide regulations.

Thus, Provision 2 is distinguishable from proposals which establish the quality of employee performance necessary to attain a positive acceptable level of competence rating restrict management's discretion to determine the level of performance sufficient for a within-grade increase and directly interfere with management's rights to direct employees and assign work. Patent and Trademark Office, 29 FLRA at 1406-09.

In Patent and Trademark Office, 29 FLRA at 1406-09, the proposal defined performance which was "marginal" as constituting an acceptable level of competence for a within-grade increase. We found the proposal to be nonnegotiable because it restricted management's discretion to determine the level of performance sufficient for a within-grade increase. We held that the proposal violated management's right to establish performance standards and, thereby, directly interfered with management's rights to direct employees and assign work. Id.

Accordingly, based on the foregoing analysis we find that Provision 2 is within the duty to bargain.

IV. Provision 3

Article 17, Section 2(C)

Performance standards shall be written for each element in a way which will permit, to the maximum extent feasible, the accurate evaluation of job performance on the basis of objective criteria. Also, to the extent feasible, standards will include expectations of quantity, quality, or timeliness, and may include expectations concerning the manner of performance, where manner of performance is actually related to job duties and responsibilities. For example, manner of performance is related to the actual duties of an employee who regularly provides information to the public through direct contact.

A. Positions of the Parties

The Agency asserts that the provision violates management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. It argues that because the provision would subject management's determination concerning the content of performance standards to the grievance procedure and arbitral review, the provision substantively interferes with these rights.

The Union asserts that the provision "was put forward during negotiations by the Agency simply to reiterate" the Agency's regulations regarding its Performance Appraisal System (DOE Order 3430.3). Union statement of position at 7. The Union argues that the provision is intended to establish a nonquantitative requirement by which the application of established performance standards may be measured. The Union asserts that Provision 3 is similar to proposals held negotiable in American Federation of Government Employees, AFL-CIO, Local 1940 and Department of Agriculture, Plum Island Disease Center, 16 FLRA 816 (1984) and American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981). Union statement of position at 8.

B. Analysis and Conclusions

We conclude that the first sentence of Provision 3 is within the duty to bargain. The remaining sentences of Provision 3 are nonnegotiable because they conflict with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

Management's rights to direct employees and assign work include the right to determine the content of performance standards and critical elements. POPA, 25 FLRA 384, 385; National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). A provision which requires the Agency to comply with applicable laws and regulations in the establishment of an employee performance appraisal plan does not interfere with management's rights because section 7106 rights are to be exercised in accordance with law. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 627, 631-35 (1987).

The first sentence of Provision 3 requires that the Agency's performance standards will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria. This sentence reflects statutory requirements. 5 U.S.C. § 4302(b)(1). It is not more restrictive than the law governing the establishment of performance standards and does not establish a separate contractual limitation on management's determination of the content of performance standards. See POPA, 25 FLRA at 391-94. Furthermore, a determination by a arbitrator of whether the agency's performance standards comply with law is not inconsistent with management's rights. Newark Air Force Station, 30 FLRA at 635-37. Therefore, the first sentence of Provision 3 is negotiable.

The remaining portion of Provision 3, however, does not merely require performance standards to be in accordance with applicable laws. It is more restrictive than the law governing the establishment of performance standards. It expressly prescribes that various separate additional contractual criteria will govern the content of standards to the "extent feasible." It precludes management from establishing performance standards which the Agency is legally entitled to prescribe. See POPA, 25 FLRA at 391-94. By precluding the Agency from establishing legally permissible performance standards, the provision directly interferes with management's rights to direct employees and assign work. Id.

A finding that Provision 3 is consistent with an Agency regulation does not alter this conclusion. The regulation restricts the exercise of management's rights to assign work and direct employees. Incorporation of those restrictions into the collective bargaining agreement requires management to comply with them during the period of the collective bargaining agreement regardless of whether the regulation is revised or rescinded. Although law or regulation may limit the exercise of management's rights, the Statute prohibits the negotiation of contractual limitations on management's rights. American Federation of Government Employees, AFL-CIO, National Council of Social Security Administration Field Operations Locals and Social Security Administration, 25 FLRA 622, 624 (1987) (proposal requiring adherence to existing agency policy concerning management's right to assign work constitutes an independent limitation on the right), enforced sub nom. American Federation of Government Employees, AFL-CIO, National Council of Social Security Administration Field Operations Locals v. FLRA, 836 F.2d 1408 (D.C. Cir. 1988).

The Union's reliance on Plum Island Disease Center, 16 FLRA 816 (1984) (Proposal 1), and Federal Deposit Insurance Corporation, 7 FLRA 217 (1981), is misplaced. In those cases, the Authority found that the proposals involved general, nonquantitative requirements by which the application of established performance standards could be evaluated. In contrast, Provision 3--apart from the first sentence--prescribes independent contractual restrictions on the content of the performance standards. Therefore, except for the first sentence, Provision 3 is outside the duty to bargain.

V. Provision 4

Article 21, Section 3

Reassignments between positions or between work units are made only for mission related reasons.

A. Positions of the Parties

The Agency asserts that the provision violates management's right to assign employees under 7106(a)(2)(A) because it would require negotiation over the conditions under which a reassignment would be made.

The Union argues that (1) the Agency retains the sole discretion to determine what is mission-related, and (2) the provision would require only that the Agency act in accordance with law and regulation. It asserts that Provision 4 is negotiable under the Authority's decision in American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 676 (1983), because the phrases "mission-related reasons," as used in this case, and "the efficiency of the service," as used in U.S. Marshals Service are "synonymous." Union statement of position at 9.

B. Analysis and Conclusions

In U.S. Marshals Service, 11 FLRA at 676-78, the Authority found Proposal 4 to be negotiable. Proposal 4 provided:

Involuntary reassignments will only be made to promote the efficiency of the service, and will not be made to discriminate or punish, or for any reason that would violate law, rule, regulation, or this agreement.

Based on the wording of Proposal 4 and the union's stated intent, the Authority determined that the purpose and effect of the proposal was to require management to exercise its right to assign employees in accordance with applicable law, regulation, and contractual procedures. Therefore, the Authority held that the proposal was negotiable because it merely required the agency to exercise its statutory right in accordance with law.

In contrast to the proposal in U.S. Marshals Service, Provision 4 establishes the absolute criterion that reassignments must be made "only for mission related reasons." The provision does not define that phrase, which in our view, is not synonymous with "efficiency of the service," as the Union claims, or with "in accordance with applicable laws." The phrase is not self-explanatory and does not reflect the Union's stated intent. The Union could have drafted this provision to reflect its intent but has not done so. The provision, as worded, interferes with the Agency's reserved right and is outside the duty to bargain. See Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 818 (D.C. Cir. 1987).

VI. Provision 5

Article 36, Section 5

Bargaining unit employees will not be placed under the supervision of contract employees.

A. Positions of the Parties

The Agency contends that the provision interferes with "management's right to assign."

The Union argues that the intent of the provision is to ensure that bargaining unit employees are not "adversely affected by the exercise of management's right to assign work." Union statement of position at 10. The Union argues that contract employees are not "supervisory employees," as defined in 5 U.S.C. § 7103(a)(10), because they do not have the authority to hire, promote, reward, transfer, lay off, discipline, furlough, remove, or adjust grievances. Thus, the Union argues that bargaining unit employees could be adversely affected if they were supervised by contract employees. The Union also asserts that the supervision of bargaining unit employees by contract employees "would subvert the integrity of the negotiated grievance procedure." Union statement of position at 11. It argues that since contract supervisors would have "no authority to adjust grievances or to discipline employees, the filing of grievances at the lowest levels of the mutually agreed upon grievance procedure would be futile." Id.

B. Analysis and Conclusions

Provision 5 directly interferes with management's rights to assign work and to determine the personnel who will conduct agency operations. The provision restricts the Agency's ability to require bargaining unit employees to carry out tasks assigned to them by contract employees and precludes the Agency from requiring contract personnel to perform supervisory functions in connection with the bargaining unit. For these reasons, the provision conflicts with section 7106(a)(2)(B). American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1250-51 (1988); Defense Logistics Agency, Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367, 374-76 (1986).

We reject the Union's argument that the provision does not interfere with management's rights because under section 7103(a)(10) of the Statute, contract employees do not have the authority to supervise. We considered and rejected the same argument in Defense Logistic Agency, 24 FLRA at 375. In that case, we concluded that although section 7103(a)(10) enumerates duties and responsibilities which would identify individuals as supervisors for purposes of including or excluding them from bargaining units, the section does not limit an agency's discretion to determine which personnel will perform those duties and responsibilities. Id. at 375-76. The same reasoning applies here. Consequently, we also reject the Union's claim that employees could be adversely affected by the exercise of management's right to assign work, since that claim is premised on the Union's erroneous interpretation of section 7103(a)(10).

Accordingly, we find that Provision 5 is nonnegotiable.

VII. Order

The Agency must rescind its disapproval of Provisions 1, 2 and the first sentence of Provision 3.(2) The petition for review as to the remainder of Provision 3, Provision 4 and Provision 5 is dismissed.

Issued, Washington, D.C.,

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




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Since the Agency did not file a statement of position, the Agency contentions referred to are those set forth in the Agency's disapproval of the agreement.