34:0873(145)NG - - Hawaii FEMTC and Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, HI - - 1990 FLRAdec NG - - v34 p873



[ v34 p873 ]
34:0873(145)NG
The decision of the Authority follows:


34 FLRA No. 145

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL

AFL-CIO

and

U.S. DEPARTMENT OF THE NAVY

PEARL HARBOR NAVAL SHIPYARD

PEARL HARBOR, HAWAII

0-NG-1660

DECISION AND ORDER ON NEGOTIABILITY ISSUE

February 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based upon a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) by the Hawaii Federal Employees Metal Trades Council, AFL-CIO (the Union). The appeal concerns the negotiability of one proposal pertaining to the performance appraisal system of the Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii (the Agency). The proposal concerns situations where management is unable to evaluate employees, including Union officials, because the employees have not performed work in assigned positions for the minimum period of time to receive a performance appraisal. The proposal would require the Agency to give those employees a performance rating of fully successful or higher depending on the average rating of other employees within the same job description.

For the reasons discussed below, we find that the proposal is inconsistent with 5 C.F.R. § 430.206(e), a Government-wide regulation, and is outside the Agency's duty to bargain under section 7117(a)(1) of the Statute.

II. Proposal

Employees who, for one reason or another, are unable to be rated, such as full time union officials, will receive a rating that reflects the average rating of all Shipyard personnel with the same JD/PD and normally will not receive a rating less than "Fully Successful".

III. Positions of the Parties

A. Agency

The Agency contends that the proposal is nonnegotiable because it is inconsistent with Government-wide regulations, 5 C.F.R. §§ 430.205(b) and 206(e), which require that: (1) an employee occupy a position for at least 90 days before that employee is eligible for an annual performance appraisal; and (2) the appraisal period shall be extended in those circumstances in which an employee has not performed work in his or her regularly assigned position for the minimum appraisal period.

The Agency claims that the proposal would require it to give ratings of fully successful or higher to employees whose performance could not be appraised because they have not performed work in assigned positions for the minimum period. The Agency also contends that, by requiring that employees' ratings reflect the average rating of all shipyard personnel in the same job description, the proposal "would result in a required rating above fully successful in 75% of the cases." Agency's Statement of Position at 4. The Agency, therefore, claims that the proposal is inconsistent with 5 C.F.R. §§ 430.205(b) and 206(e) because it requires the Agency to give ratings to employees who have not actually performed sufficient work under the established elements for the minimum period.

The Agency also claims that the proposal directly interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute because it prescribes the rating to be given employees who are unable to be rated. Id.

B. Union

The Union did not file a response to the Agency's Statement of Position. However, in its petition for review, the Union disputes the Agency's contention that the proposal is inconsistent with Government-wide regulations.

The Union contends that the proposal would allow "Union Representatives and other . . . employees that are temporarily assigned duties for which they could not be rated [to] be assigned a presumptive rating . . . , and in no case [would] they receive a rating of less than 'fully successful'." Union's Petition for Review at 1. According to the Union, the proposal would allow these employees to be given a rating, thereby allowing them to be eligible to receive their normal within-grade increases without concern that their participation in Union matters would prevent them from receiving those increases. Id. at 2.

IV. Discussion

The proposal addresses situations where the Agency cannot evaluate an employee's annual performance, including the performance of a Union official, because the employee has not performed work in an assigned position for the minimum period of time necessary for the Agency to appraise the employee's work performance. The proposal would require the Agency to give such an employee a rating of fully successful or higher depending on the average rating of other employees within the same job description.

Under applicable regulations, an agency must establish a minimum appraisal period of at least 90 days but not more than 120 days. 5 C.F.R. § 430.205(b). When an agency cannot prepare a rating of record for an employee at the time specified in the performance plan because the employee has not performed work in an assigned position for the minimum appraisal period, the agency must extend the appraisal period until the employee has performed work in a position for the minimum amount of time necessary to meet the minimum appraisal period requirement. 5 C.F.R. § 430.206(e).

We interpret the proposal as applying to circumstances in which, under applicable regulations, the Agency would be unable to provide a rating for employees on the date required by the performance plan because those employees have not performed work in assigned positions for the minimum appraisal period when the annual appraisal is due.

The proposal would apply to circumstances where: (1) employees have been detailed to positions and have not performed work in the detailed positions for a sufficient period of time to permit an evaluation of their performance; or (2) employees have not performed work in assigned positions for a sufficient period to permit an evaluation of their performance during the rating period because they have used official time for representational functions for extensive periods. In these situations, 5 C.F.R. § 430.206(e) requires the Agency to extend the appraisal period until the employee has worked in a position for the minimum amount of time necessary to meet the minimum appraisal period requirement. By requiring the Agency to give employees who have not performed work in assigned positions for the minimum appraisal period a rating of fully successful or higher--instead of extending the appraisal period--the proposal is inconsistent with 5 C.F.R. § 430.206(e), a Government-wide regulation. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 28 FLRA 1052, 1055 (1987) (Proposal 2). Accordingly, it is outside the Agency's duty to bargain under section 7117(a)(1) of the Statute.

As to the Union's concern regarding the effect of the absence of a performance rating on an employee's eligibility for a within-grade increase, we note that 5 C.F.R. § 531.409(d) provides that within-grade increases shall be granted when an employee has not served in a position for the minimum appraisal period under an applicable agency performance appraisal system during the final year of the waiting period because: (1) of absences that are creditable service in the computation of a waiting period or periods; (2) of paid leave; (3) the employee received service credit under applicable backpay provisions; (4) of details to another age