42:1285(88)NG - - NAGE, Federal Union of Scientists and Engineers, Local R1-144 and Navy, Naval Underwater Systems Center, Newport, RI - - 1991 FLRAdec NG - - v42 p1285



[ v42 p1285 ]
42:1285(88)NG
The decision of the Authority follows:


42 FLRA No. 88

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

FEDERAL UNION OF SCIENTISTS AND ENGINEERS

LOCAL R1-144

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERWATER SYSTEMS CENTER

NEWPORT, RHODE ISLAND

(Agency)

0-NG-1932

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns four proposals.

Proposal 1 requires the Agency to revise the position description of the Union president. Proposal 2 provides that critical elements and performance standards for the Union president will be written and evaluated by a "neutral source" outside the Agency. Proposal 3 addresses the Union president's eligibility for performance awards. Proposal 4 requires the Agency to extend the career ladder target grade of the Union president to GS-15. For the following reasons, we conclude that the proposals are nonnegotiable.

II. The Proposals

Proposal 1

The president of FUSE [Federal Union of Scientists and Engineers] is subject to PARS, as is every other FUSE unit member. In order to generate critical elements and standards that reflect the duties of an individual who is president of FUSE and thus allowing him/her to be rated regardless of the amount of time that he/she devotes to union work, the position description (PD) of the president of FUSE will be amended to include the statement "This individual performs the duties of the president of NAGE R1-144." This statement will be removed from the PD when he/she is replaced as president of FUSE.

[Only the underscored portion is in dispute.]

Proposal 2

In order to remove any real or perceived prejudices against the president of FUSE, the PARS critical elements and standards pertaining to the duties of the president of FUSE will be written and evaluated by a neutral source selected from either the Federal Labor Relations Authority, a FMCS Mediator, or an Arbitrator who is selected from the American Arbitration Association listing.

Proposal 3

The president of FUSE is eligible for the performance awards that are attached to PARS.

a. For the purpose of PARS, the president of FUSE will be grouped with code 00 organizational pool.

b. In order to remove any real or perceived prejudices against the president of FUSE, a monetary payout to the president of FUSE is established as follows

1. For a PARS rating of level 5, no less than 2% of salary.

2. For a PARS rating of level 4, the arith[]metic average of all level 4 ratings payouts in the organizational pool and no less than the highest payout of any level 3 rating.

3. For a PARS rating of level 3, the arith[]metic average of all level 3 rating payouts in the organizational pool.

Proposal 4

The career ladder of an individual assuming the position of the president of FUSE will be extended to GS-15. If he/she is at a grade level that is higher than the career ladder target, then he/she will retain his/her present grade level. When this individual is replaced as president of FUSE, he/she will resume his/her PD with the grade level last held prior to assuming the presidency of FUSE, and without save pay.

A. Positions of the Parties

1. The Agency

The Agency argues that all four proposals are nonnegotiable for three reasons. First, the Agency claims that the proposals are contrary to section 7131(a) of the Statute because they presume that the Union president, who uses 100 percent official time, is actually "'at work[.]'" Statement of Position at 1-2. Second, the Agency contends that the proposals are inconsistent with 5 U.S.C. § 4302.(1) According to the Agency, "'job performance'" as used in that provision, refers to performance in an "'official capacity or duty status'" not performance of Union duties. Id. at 2.

Third, the Agency maintains, based on Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles), that the proposals do not concern conditions of employment, within the meaning of section 7103(a)(14) of the Statute. The Agency claims that: (1) there is no requirement that the Union president be a bargaining unit member; and (2) the proposal has only an indirect effect on working conditions because it relates "to the relationship between the union president and the local union[.]" Statement of Position at 3.

The Agency also makes specific arguments regarding each proposal. The Agency claims that Proposal 1 is inconsistent with 5 C.F.R. §§ 430.203, 430.205(b), and 430.206(e). The Agency argues that the proposal would "circumvent" the regulatory requirements that an employee must work in his/her regularly assigned position for a minimum period in order to receive a rating of record. Id. The Agency also claims that Proposal 1 is contrary to 5 U.S.C. § 5102(a)(3), 5 C.F.R. § 511.101(e), and Federal Personnel Manual (FPM) chapter 511, subchapter 2-3 and 2-4. The Agency states that under the FPM, "'[s]upervisors and managers alone are responsible for assigning duties and responsibilities to a position[.]'" Id. at 5 The Agency also argues that if it established a position encompassing the duties of the Union president, it would then be entitled under section 7106(a)(2)(A) and (B) of the Statute to assign an employee to the position. The Agency maintains that such actions are prohibited by section 7116(a)(3) of the Statute.

The Agency claims that Proposal 2 "totally abrogates" its right to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Id. at 6. The Agency also claims that Proposal 2 is contrary to 5 C.F.R. § 430.204, which provides that "[f]inal authority for establishing . . . [performance] plans rests with the supervising officials."

Next, the Agency argues that Proposal 3 violates 5 C.F.R. §§ 430.205(b), 430.206(e), and 430.503(b). The Agency claims that, as the Union president spends all of his/her time on Union duties, that individual may not receive a performance rating on which to base a performance award. The Agency also claims that, by mandating the grant of performance awards, the remainder of the proposal violates 5 C.F.R. § 430.503(c).

Finally, the Agency contends that Proposal 4 relates to the classification of positions and is, therefore, excluded from the definition of conditions of employment under section 7103(a)(14) of the Statute. The Agency also contends that, as Proposal 4 would create a career ladder based solely on Union affiliation, it conflicts with FPM chapter 335, subchapter 1-4, Requirement 1, which requires promotion actions to "be made without regard to . . . labor organization affiliation or nonaffiliation[.]" Statement of Position at 9. In addition, the Agency argues that Proposal 4 interferes with its right to determine its organizational structure under section 7106(a)(1) of the Statute.

2. The Union

The Union asserts that the four proposals are intended to correct the Agency's failure to give annual performance ratings to Union officials who are unable to perform their official, assigned duties for at least 25 percent of an appraisal period. The Union maintains that because performance ratings are used in such matters as reductions-in-force, within grade and quality step increases, and performance awards, the failure to rate Union officials "can be viewed as both penalty and a reprisal . . . ." Reply Brief at 3. The Union claims that the proposals concern conditions of employment because: (1) any unit employee in good standing is entitled to seek Union office; and (2) a finding that the proposal is nonnegotiable would deny unit employees their rights under section 7102 of the Statute.

The Union claims that Proposal 1 would merely require the Agency to amend the Union president's existing PD. The Union contends that the amended PD would reflect only the Agency's recognition that the president "is responsible for the duties of an elected official in the bargaining unit." Id. at 6.

The Union claims that Proposal 2 would eliminate "[r]eal or perceived prejudices" and biases in rating Union officials. Id. The Union also claims that 5 C.F.R. §§ 430.205(d)(2) and 430.205(d)(2)(ii) "make allowances for an employee to be rated when he/she is detailed outside of the agency." Id.

The Union states that the negotiability of Proposal 3 depends on the negotiability of Proposals 1 and 2. The Union maintains that Proposal 3 constitutes a "procedure on how to arrive at a fair and equitable payout when the agency elects to make payouts" to the organizational pool of which the Union president is proposed to be a part. Id. at 7.

Finally, the Union asserts that Proposal 4 would encourage unit employees to exercise their rights under section 7102 of the Statute. The Union maintains that the duties and responsibilities of the Union president are "sufficient to warrant a grade level above the grade level of any employee who elects the [U]nion president." Id. at 7-8.

B. Analysis and Conclusions

1. Conditions of Employment

Section 7103(a)(14) of the Statute defines conditions of employment as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" Excluded from the definition of conditions of employment, among other things, are matters "relating to the classification of any position[.]" 5 U.S.C. § 7103(a)(14)(B). In determining whether a proposal concerns a condition of employment, the Authority examines: (1) whether the matter proposed to be bargained pertains to bargaining unit employees; and (2) the nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. Antilles, 22 FLRA at 236-37.

The Agency claims that, under Antilles, the four proposals do not concern conditions of employment because, among other things, "there is no requirement that the individual elected president of the [U]nion be a bargaining unit member, or for that matter, an employee of the [A]gency." Statement of Position at 3. The Union does not dispute the Agency's statement. The Union asserts, however, that "the bylaws of the [U]nion allows [sic] any bargaining unit employee in good standing to seek an elected office in the [U]nion." Reply Brief at 4.

From our reading of the proposals and the record as a whole, it is apparent that the Union intends the proposals to apply only insofar as the Union's president is a bargaining unit employee. See, for example, Reply Brief at 5 ("It is understood that a PD pertains to an employee of the activity and clearly does not pertain to a person who is not an employee . . . ."). We note that the Agency does not dispute the negotiability of the first sentence in Proposal 1, which states that the Union's president is subject to the Agency's Performance Appraisal Review System (PARS), "as is every other . . . unit member." We find, therefore, that the proposals would have effect only if the Union president is a Government employee who occupies a position in the bargaining unit and we will address the proposals in that context.

Proposals 1, 2, and 3 address position descriptions, performance plans, and performance awards for the Union president. Contrary to the Agency's claim, there is no basis on which to conclude that these matters relate to internal Union business. Moreover, it is clear that these matters relate to working conditions, as required by section 7103(a)(14) of the Statute. Accordingly, consistent with our finding that the proposals have effect only insofar as that official is a unit employee, we conclude, based on Antilles, that Proposals 1, 2, and 3 concern conditions of employment.

We also conclude, however, that Proposal 4 does not concern a condition of employment. As noted previously, excluded from the statutory definition of conditions of employment are matters related to the classification of any position. Proposals concerning the pay levels of positions concern classification of positions, within the meaning of section 7104(a)(14)(B) of the Statute. See International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 736-37 (1988); Police Association of the District of Columbia and United States Department of the Interior, National Park Service, National Capital Region, 11 FLRA 594 (1983). Compare, for example, U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 38 FLRA 32, 36 (1990) ("Where the substance of a grievance concerns the grade level of duties assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute.") (citations omitted).

Proposal 4 requires that the career ladder of the Union president "be extended to GS-15." The Union argues that the "duties and responsibilities of the elected [U]nion president are sufficient to warrant a grade level above the grade level of any employee who elects the [U]nion president." Reply Brief at 7-8. Based on the plain wording of the proposal and the Union's statement, it is clear that Proposal 4 would require the Agency to take actions to ensure that the Union president's position be part of a career ladder encompassing a grade and pay level of GS-15. As such, we conclude that Proposal 4 concerns the classification of a position, within the meaning of section 7103(a)(14)(B) of the Statute and, therefore, does not concern a condition of employment. Accordingly, without addressing the Agency's other arguments, we find that Proposal 4 is nonnegotiable.

2. Sections 7102 and 7116 of the Statute

Among other things, section 7102 of the Statute provides employees with rights to "form, join, or assist any labor organization[.]" Agencies may not interfere with, restrain or coerce employees in the exercise of such rights, and may not discourage membership in a labor organization by discrimination in connection with conditions of employment. 5 U.S.C. § 7116(a)(1) and (2). See generally, Letterkenny Army Depot, 35 FLRA 113 (1990). See also Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891 (1990) (respondent violated section 7116(a)(1) and (2) by lowering a union representative's performance appraisal based on consideration of protected activities).

Although employees are guaranteed certain rights by section 7102 and agencies are prohibited from taking certain actions by section 7116, we have no basis on which to conclude that these sections, independently or together, affect the negotiability of the proposals before us. Put simply, insofar as the Union argues that the proposals are required by, and reflective, of these statutory requirements, we reject the arguments as unfounded. We will not address these arguments further.

3. 5 U.S.C. § 4302

Under 5 U.S.C. § 4302(a), the Agency is required to develop systems which provide for appraisals of employees' job performance. See n.1 at 3. "Job performance" is not statutorily defined. Based on our reading of 5 U.S.C. Chapter 43 and its implementing regulations, however, we conclude that such job performance may not encompass duties and responsibilities performed on official time on behalf of a labor organization. Instead, we find it clear that such job performance is intended to encompass an employee's performance of agency-assigned duties and responsibilities. See, for example, 5 C.F.R. § 430.203 ("performance" defined as "an employee's accomplishment of assigned work as specified in the critical and non-critical elements of the employee's position"); 5 C.F.R. §430.203 ("critical element" defined as "a component of a position consisting of one or more duties and responsibilities which contributes toward accomplishing organizational goals and objectives . . . .").

In this case, it is undisputed that the Union president has been granted, and uses, 100 percent official time.(2) That is, the Union president spends all of his or her duty time performing Union activities. Such Union duties are not assigned by the Agency. See generally Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 105 (1983) ("Congress did not provide that employees engaged in collective bargaining are acting in their 'official capacity,' 'on the job,' or in a 'duty status.'"). See also American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1529 (D.C. Cir. 1986) ("Any bargaining proposal concerning official time for representational activities necessarily reduces the number of person-hours available for performing the work of the agency[.]"); id. at 1526 ("A grant of official time allows employees to be paid as if they were performing their normal duties whenever they perform representative functions during the working day.").

Proposal 2 would require the establishment and evaluation of critical elements and performance standards "pertaining to the duties of" the Union president. As the Union president performs Union duties only, and as 5 U.S.C. § 4302 requires that elements and standards encompass only Agency-assigned duties, we find that the establishment of performance standards and critical elements for the duties encompassed by Proposal 2 is inconsistent with 5 U.S.C. § 4302. Accordingly, without addressing the Agency's other arguments, we conclude that Proposal 2 is inconsistent with law and is nonnegotiable under section 7117(a) of the Statute.

Proposal 1 addresses the Union president's position description. In other contexts, proposals relating to unit employees' position descriptions have been held negotiable. For example, Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292, 1300-01 (1987). Here, however, Proposal 1 requires the Union president's position description to be revised solely "[i]n order to generate critical elements and standards that . . . [will] allow[] him/her to be rated regardless of the amount of time that he/she devotes to [U]nion work[.]" By its plain terms, Proposal 1 is linked to, and derives meaning from, Proposal 2. As we determined above, Proposal 2 is inconsistent with 5 U.S.C. § 4302 and, thereby, nonnegotiable under section 7117(a) of the Statute. We conclude, therefore, that as Proposal 1 is linked to Proposal 2, Proposal 1 also is nonnegotiable under section 7117(a) of the Statute because it is inconsistent with 5 U.S.C. § 4302.

Finally, with respect to Proposal 3, the Union acknowledges that "[t]he negotiability of this proposal depends on the negotiability of . . . [P]roposals 1 and 2." Reply Brief at 6. The Union's acknowledgement is consistent with the plain wording of Proposal 3, which references the Union president's PARS ratings, and 5 U.S.C. § 4302, which provides for rewarding employees on the basis of performance appraisals. Proposals 1 and 2 are nonnegotiable under section 7117(a) of the Statute because they are inconsistent with 5 U.S.C. § 4302. Accordingly, we conclude that because the negotiability of Proposal 3 is dependent on the negotiability of Proposals 1 and 2, Proposal 3 also is inconsistent with 5 U.S.C. § 4302 and, therefore, nonnegotiable under section 7117(a) of the Statute.

III. Order