National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service
[ v55 p1005 ]
55 FLRA No. 164
NATIONAL TREASURY EMPLOYEES UNION
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
DECISION ON NEGOTIABILITY ISSUE
September 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), [n2] and concerns a single provision of the parties' collective bargaining agreement that was disapproved pursuant to Agency head review under section 7114(c) of the Statute. [n3] The Agency filed a Statement of Position and the Union filed a Response.
For the reasons that follow, we find that the provision is not contrary to law or Government-wide regulation and order the Agency to rescind its disapproval.
Article 12, §4J(2):
The Employer has determined that a Union representative working virtually full time on Union duties, may receive a revalidated appraisal, provided the Union representative has worked enough time to be rated, i.e., performed at least 120 hours of work in an evaluation year. If the minimum period cannot be met, the Union representative will receive a "Not Ratable" (NR) rating. However, when the Union representative desires a rated appraisal, the appropriate management official and the Union representative will consult over the matter and pursue agreement on a reasonable and sufficient amount of work necessary to receive a rating. For example, the appraisal could be based upon:
(a) working an amount of time equal to that which would meet the service center learning curve for the position held by the Union representative;
(b) agreements which were in existence at the time NORD/NC IV were signed and which are in accord with existing regulations; or
(c) the performance of tasks, projects, cases, or other work products/activities which are included in the employee's position description and ratable under one (1) or more critical elements.
(Only the underlined portion of the provision is in dispute).
III. Meaning of the Provision
By its terms, the disapproved portion of the provision permits Union representatives who are spending almost all of their time on Union representational duties to receive a "revalidated" performance appraisal by spending 120 hours performing regularly assigned work. [n4] If Union representatives cannot meet the 120 hour minimum, they will be given a "Not Ratable" rating. However, if Union representatives cannot meet the 120 hour minimum, but still want to be appraised, the Union and the Agency will attempt to reach agreement on a reasonable and sufficient amount of work that would provide a basis for an evaluation. The provision lists possible ways of accomplishing that objective. There is no dispute that, under the provision, a Union representative would have to perform agency work in order to be appraised.
In effect, the provision prescribes a minimum appraisal period for Union representatives. [n5] [ v55 p1006 ]
IV. The Provision Is Not Contrary to Government-wide Regulations
A. Positions of the Parties
The Agency claims that the provision is inconsistent with Government-wide regulations to the extent that it provides that "a Union representative, working virtually full time on Union duties, may receive a revalidated appraisal based on a minimum of 120 hours of work in an evaluation year." Statement of Position at 3. More specifically, the Agency asserts that the provision is "inconsistent with the meaning and intent of [G]overnment-wide regulations regarding performance appraisals." Id.
The Agency states, citing 5 C.F.R. § 430.210, that Office of Personnel Management (OPM) regulations require that OPM approve an agency's performance appraisal system or systems. [n6] According to the Agency, it has established a performance appraisal system providing that performance appraisal programs will include a minimum performance period of 60 days, and this system has been approved by OPM.
The Agency acknowledges that OPM regulations do not prescribe a minimum period on which an employee's performance rating must be based, but points out that these regulations do require such ratings to be based on actual performance. According to the Agency, OPM has made it clear that "appraisal of [an] employee's performance must be based solely upon the employee's performance of agency duties." Statement of Position at 3 (quoting 60 Fed. Reg. 43,936, 43,937 (1995). The Agency quotes OPM as follows: "'For employees who spend 100 percent of their time as labor representatives, and for employees who spend a significant amount of time as determined by the agency, this means that they cannot, and should not, be given performance appraisal ratings of record.'" Id.
The Agency contends that OPM's statement indicates employees who spend a significant amount of time performing duties that are collateral to their regularly assigned duties, including union representational duties, are not ratable. The Agency asserts that, in order to obtain a rating of record, "an individual must spend a significant amount of time performing duties for which he/she is accountable to the agency." Id. at 4.
The Agency interprets the disputed provision as providing that employees who are spending a significant portion of the time they would otherwise be performing work serving as Union representatives will be able to receive a performance appraisal rating. Because the provision allows employees who are not spending a significant amount of time performing agency work to receive performance ratings, the Agency claims that the provision is "inconsistent with the intent and effect" of 5 C.F.R. part 430, as explained in OPM's comments in the Federal Register. Id,
Finally, the Agency notes that OPM has approved "a single system for all employees [Agency]-wide," which includes a 60-day minimum appraisal period. Id. The Agency argues that the provision is inconsistent with this minimum appraisal period because it does not apply to all employees. In addition, according to the Agency, all appraisal programs within the Agency must, under OPM regulations, conform to the approved system. Because the provision is inconsistent with the minimum appraisal period, it does not conform to the Agency system and is nonnegotiable.
The Union contends that the Agency has not cited an OPM regulation with which the provision specifically conflicts. Rather, the Union argues, the Agency relies only on a regulation that requires OPM to approve agency performance appraisal systems. According to the Union, nothing in the disputed provision would preclude OPM approval of the Agency's system.
As to the Agency's claim regarding the 60-day minimum appraisal period in its performance system, the Union notes the Agency did not assert that a compelling need exists for this Agency regulation. The Union [ v55 p1007 ] argues that the fact that OPM has approved the Agency's system does not mean that the 60-day appraisal period is a Government-wide requirement.
The Union contends that the provision does not conflict with the 60-day appraisal period. Specifically, the Union argues that the provision does not require that the 120 hours specified therein be worked in less that 60 days and, correlatively, that the 60-day requirement does not specify how many hours must be worked each day in order to meet that requirement.
The Union disputes the Agency's claim that the provision precludes uniform application of its performance appraisal system. According to the Union, it is the Agency's failure to define how many hours must be worked each day or how to account for days on leave, rather than the provision, that is the source of the lack of uniformity. [n7]
B. Analysis and Conclusions
Under 5 U.S.C. chapter 43 and its implementing regulations, 5 C.F.R. part 430 (part 430), job performance may not encompass duties and responsibilities performed on official time on behalf of a labor organization, but, instead, is intended to encompass an employee's performance of agency-assigned duties and responsibilities. In particular, under 5 U.S.C. § 4302, as interpreted and applied by the Authority, critical elements and performance standards encompass only agency assigned duties and responsibilities. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, 48 FLRA 357, 364 (1993) (quoting National Association of Government Employees, Federal Union of Scientists and Engineers, Local R14-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA 1285, 1293 (1991)). The issue here is whether the minimum appraisal period for Union representatives established by the disputed provision is inconsistent with part 430.
1. 5 C.F.R. Part 430 Does Not Preclude an Agency from Providing Virtually Full-Time Union Representatives with a Performance Appraisal
Part 430 requires that an agency performance program specify a minimum performance period before a rating can be prepared. [n8] However, as the Agency acknowledges, the regulations applicable here do not prescribe the length of such a period. See 5 C.F.R. §§ 430.206(a), 207(a). [n9] Consequently, under part 430, agencies have discretion as to the length of a minimum appraisal period. [n10]
Where a Government-wide regulation [n11] provides an agency with discretion over a particular matter, and the exercise of that discretion is not sole and exclusive to the agency, a proposal prescribing how that discretion is to be exercised, within the limits granted by the discretion, is not inconsistent with that regulation. [n12] See, e.g., American Federation of Government Employees, National Border Patrol Council and U.S. Department of [ v55 p1008 ] Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1335 (1996); International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1526 (1991); American Federation of Government Employees, AFL-CIO, National Border Patrol Council and Department of Justice, Immigration and Naturalization Service, 23 FLRA 146, 148-49 (1986).
The Agency's arguments with respect to the meaning and intent of part 430 do not demonstrate that the provision is inconsistent with that regulation. In arguing that part 430 is intended to preclude the appraisal of union representatives who spend a significant portion of their time on representational duties, the Agency cites OPM's comments on the revisions to part 430, which state as follows:
Under performance appraisal provisions in part 430, the performance to be planned, monitored, and rated covers the work, duties, and responsibilities that accomplish the agency mission and for which the employee is accountable to the employing organization. When an employee is serving as the representative of a labor organization, he or she is performing duties for that labor organization. To intermingle performance of the representational duties into the appraisal program would be inappropriate because appraisal of the employee's performance must be based solely upon the employee's performance of agency duties. For employees who spend 100 percent of their time as labor representatives, and for employees who spend a significant amount of time as determined by the agency, this means that they cannot, and should not, be given performance appraisal ratings of record.
60 Fed. Reg. 43,937 (1995). The Agency interprets OPM's comments as limiting the Agency's discretion with respect to the appraisal of union representatives who do not spend a significant amount of time performing agency work. The Agency argues that the provision at issue herein, by permitting an appraisal based on 120 hours or less of agency work, is inconsistent with OPM's intent.
The Authority has relied on OPM's explanatory comments to interpret the intent of part 430. See Patent and Trademark Office, 52 FLRA at 1274-75 (OPM's comments indicate that performance appraisals must be based on the performance of agency duties and responsibilities). However, the Agency's argument misses the point of the comments quoted above. Specifically, OPM states that agencies must decide whether the amount of time spent by an employee on union activities is "significant." No basis is established for finding that the Agency lacks discretion under part 430 to determine that an employee is spending a "significant amount of time" as a labor representative if the employee performs agency work for at least 120 hours per evaluation year. This discretion is consistent with the fact, noted above, that part 430 does not prescribe a specific minimum appraisal period.
2. Requiring the Agency to Negotiate a Different Minimum Appraisal Period for Virtually Full-Time Union Representatives Does Not Conflict with 5 C.F.R. Part 430
The Agency's claim that, under part 430, the provision must be consistent with the 60-day minimum appraisal period established pursuant to the Agency's system, and approved by OPM, is based on a misinterpretation of part 430. Part 430 distinguishes between a performance appraisal system, which must be approved by OPM, see nn.5 and 6, supra, and performance appraisal programs, which do not need such approval, see n.5, supra. Part 430 permits the development of separate appraisal programs within the same appraisal system. 5 C.F.R. §§ 430.204(a), 205(c). Each agency appraisal program must specify the minimum appraisal period, see n.9, supra.
Appraisal programs must "conform to statute, the regulations [set forth in 5 C.F.R. part 430], and the requirements established by the appraisal system." 5 C.F.R. § 430.204(b)(5). The Agency has not demonstrated that the provision: (1) is inconsistent with any statute; (2) is inconsistent with OPM regulations; or (3) fails to conform to the requirements of the applicable appraisal system. Specifically, the Agency cites no law with which the provision is inconsistent. As to OPM regulations, the fact that the provision may, in effect, create an additional appraisal period that varies from the current Agency appraisal program does not, in and of itself, make it inconsistent with the requirements of part 430 governing such programs. Nothing in part 430 requires uniformity of procedures or requirements between all agency appraisal programs. Finally, the Agency cites no provision of its appraisal system that requires such uniformity.
In addition, the Agency's assertion that the provision is inconsistent with the 60-day minimum appraisal period prescribed in the Agency's appraisal program is tantamount to a claim that the provision is barred from negotiation by an agency regulation. See, e.g., National Federation of Federal Employees, Local 29 and U.S. [ v55 p1009 ] Army Engineer District, Kansas City, Mo., 21 FLRA 298 (1986) (claim that proposal conflicted with performance appraisal system resolved as claim of conflict with agency regulation). Under section 7117(b) of the Statute, an agency regulation does not bar negotiation on an otherwise negotiable provision unless the agency can demonstrate a compelling need for the regulation under section 2424.11 of the Authority's Regulations. The Agency has not demonstrated or even asserted that a compelling need exists for its performance appraisal program. See, e.g., American Federation of Government Employees, Locals 3807 and 3824 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 55 FLRA 1, 3 (1998).
In sum, the Agency has discretion, in establishing performance appraisal programs under part 430, to determine the minimum length of an appraisal period, as long as that appraisal period is consistent with law, regulation, and the Agency's own appraisal system. Because a minimum appraisal period of 120 hours, as set forth in the provision, is consistent with law and regulation, and is not barred by the Agency's appraisal program, the provision is within the Agency's discretion under part 430. Accordingly, we find that the provision is not inconsistent with 5 C.F.R. part 430.
IV. The Provision Is Not Contrary to Section 7114(a)(1) of the Statute
A. Positions of the Parties
The Agency states that section 7114(a)(1) of the Statute "requires an exclusive representative to represent the interests of all employees in the unit without discrimination[.]" Statement of Position at 5. According to the Agency, the provision grants a benefit to Union representatives that is not provided to any other bargaining unit employee. In so doing, the Agency argues, the provision is "inconsistent with the Union's duty to all bargaining unit employees under section 7114(a)(1)." Id.
The Union claims that the provision does not provide a benefit to union representatives. Rather, according to the Union, the provision merely requires the Agency, when evaluating Union representatives, to keep track of their performance on an hourly basis. The Union notes that, without the provision, the Agency could establish a requirement for a minimum amount of work each day that must be met before the day would count toward the 60-day standard. For example, the Union argues, the Agency could require that an employee work all 8 hours in order for the day to count as one of the days of the period. Under such a requirement, the Union contends, a union representative could work some portion of a day for a whole year and never be evaluated, which is "absurd." Response at 3. The Union maintains that, consistent with the provision, the Agency can decide to appraise all unit employees based on "something other than 60 full, 8-hour days of work." Id.
B. Analysis and Conclusions
Section 7114(a)(1) of the Statute provides, in relevant part, that "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." The Authority has found proposals distinguishing between unit employees on the basis of union membership to be outside the duty to bargain, and provisions to be contrary to law, under section 7117(a)(1) because they are inconsistent with section 7114(a)(1). See, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 702-04 (1992) (provision created arbitration fund to which non-members were required to contribute); National Federation of Federal Employees, Local 951 and Department of the Interior, Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California, 3 FLRA 884, 886 (1980) (proposal afforded union members an additional amount of official time for union-sponsored training not provided non-members).
The Authority has consistently stated the test for determining whether a proposal conflicts with section 7114(a)(1) in circumstances where union membership is not involved as follows:
Where union membership is not a factor, the standard for determining whether a union has violated section 7114(a)(1) is whether the union "deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit. . . . [T]he union "must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee."
Loring AFB, 43 FLRA at 1094, quoting National Federation of Federal Employees, Local 1453, 23 FLRA 686, 691 (1986) (NFFE, Local 1453). [n13] The Agency claims that the provision is discriminatory. Thus, the question presented by the disputed provision, under this test, is whether the union's agreement to terms which differen- [ v55 p1010 ] tiate between Union representatives and unit employees with respect to the minimum appraisal period results in unjustifiable disparate or discriminatory treatment.
The Agency makes no attempt to demonstrate how the differentiation between Union representatives and unit employees with respect to the minimum appraisal period "unjustifiably treated one or more bargaining unit employees differently from other employees in the unit." Loring AFB, 43 FLRA at 1094. As noted above, see Section IV.B. of this decision, supra, employees can only be appraised on the performance of agency work. Therefore, an employee who spends a significant amount of time performing union representational activities may not perform sufficient agency work to warrant an appraisal. Such an employee would be at a disadvantage with respect to other conditions of employment, for example, awards and reduction-in-force credit, which are based on performance appraisals. See 5 C.F.R. §§ 351. 504 and 451.104. In light of this factual and legal context, it has not been established that the Union's agreement to a provision affording Union representatives a shorter minimum appraisal period is unjustified or irrational.
Accordingly, we find that the disputed provision is not inconsistent with section 7114(a)(1). [n14]
V. The Agency's Claim that the Provision Violates Section 7116(a) of the Statute is Not Properly Before the Authority
A. Positions of the Parties
The Agency contends that the provision, if included in a collective bargaining agreement, would require it to violate section 7116(a)(1) and (2) of the Statute. The Agency notes that, under Authority precedent, an agency violates section 7116(a)(1) and (2) "when it predicates its actions to grant or withhold favorable conditions of employment on an employee's exercise of his protected right to form, join, or assist a labor organization or to refrain from that activity." Statement of Position at 5. Specifically, the Agency asserts that "the Statute does not permit discrimination on the basis [of] union membership or union representational duties." Id. at 6.
According to the Agency, under section 7116(a)(2), "it may not take actions, such as extending special benefits to union representatives, that encourage, or have the 'foreseeable effect' of encouraging, employees to support a labor organization." Id. The Agency maintains that the provision permits a union representative to obtain a rating of record based on a minimum of 120 hours of work and that the effect of the provision is to permit the representative to participate in the awards program on a basis denied to other bargaining unit employees. The Agency claims that, so construed, agreement to the provision would constitute a violation of section 7116(a)(2).
The Union contends that the provision does not involve an unfair labor practice. According to the Union, the provision does not provide any benefit to Union representatives that is not also provided to unit employees, namely, an annual appraisal. The Union notes that the Authority has held that Union representatives must be appraised on the work that they perform [ v55 p1011 ] for the Agency. Since Union representatives will only be able to perform such work intermittently, the Union claims that the Agency will only be able to appraise those representatives intermittently. If such an intermittent appraisal is an unfair labor practice, as the Agency appears to claim, the Union argues that the Agency's position reduces to the contention that the Authority has ordered it to commit an unfair labor practice.
B. Analysis and Conclusions
The Agency's claim that the provision violates section 7116(a)(1) and (2) of the Statute is a contention that the provision constitutes an unfair labor practice under the Statute. For the following reasons, we conclude that this claim is not properly before us in this negotiability proceeding.
Under section 7105(a)(2)(E) of the Statute, the Authority is vested with the responsibility to "resolves issues relating to the duty to bargain in good faith under section 7117(c)[.]" While the Authority is also entrusted with the responsibility to resolve unfair labor practice complaints under the Statute, the Authority does so after the General Counsel has fulfilled its statutory role in investigating and prosecuting claimed unfair labor practices. Under section 7118 of the Statute, it is the General Counsel who, in the first instance, "shall investigate [an unfair labor practice] charge and may issue and cause to be served . . . a complaint."
We find no support in Authority precedent for addressing the merits of an unfair labor practice claim in a negotiability proceeding. [n15] The cases on which our dissenting colleague relies are distinguishable.
In 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 3, 7-8 (1987) (Justice), and National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984), the Authority addressed whether disapproved provisions were consistent with the language of section 7116(a)(7) of the Statute. In particular, the Authority addressed the legality of provisions that required parties to be governed by existing and future laws and/or agency and Government-wide rules and regulations in existence on the approval or effective date of the negotiated agreements. The Authority did not address whether the agency would have violated the Statute by approving the negotiated provisions.
Similarly in Justice, 29 FLRA at 25-26, the Authority did not rule on whether the disapproval of a provision governing the disposition of a collective bargaining agreement in the event a new agreement was negotiated violated various unfair labor practice provisions of the Statute.
In fact, we are unaware of any Authority precedent, and the dissent fails to cite any case, in which the Authority found that a proposal or provision constitutes an unfair labor practice under the Statute. This is so even where a provision was found to be inconsistent with the Statute and where the agency had claimed a violation of section 7116. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 623-25 (1990) (provision informing non-union members of requirement to pay union for costs incurred in arbitrating grievances of non-union members held inconsistent with section 7114(a)(1) of Statute; Authority did not address claim that inclusion of provision in agreement would subject agency to unfair labor practice in violation of section 7116(a)(2)). The fact that we have assessed the negotiability of the proposal in this case against section 7114(a)(1) does not mean that we have addressed a violation of section 7116. [n16]
Finally, any reliance on private sector precedent as support for addressing an unfair labor practice claim in this case is inappropriate. The National Labor Relations Act does not contain a negotiability process that is similar to section 7117 of the Statute. Therefore, challenges to the lawfulness or enforcement of negotiated provisions are appropriately made through the unfair labor practice procedures of the Act. The cases cited in the dissenting opinion demonstrate this point.
In sum, we find that the Agency's section 7116(a)(1) and (2) claims are not properly before us in this proceeding and we do not address those claims.
The Agency shall rescind its disapproval of the provision.
File 1: Authority's Decision in 55 FLRA No.
File 2: Opinion of Member Cabaniss
Footnote # 1 for 55 FLRA No. 164 - Authority's Decision
Footnote # 2 for 55 FLRA No. 164 - Authority's Decision
The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.
Footnote # 3 for 55 FLRA No. 164 - Authority's Decision
The Union's petition for review also contained four other provisions. The parties reached agreement on revisions of three of those four provisions. Statement of Position at 2. The Union withdrew its petition for review as to the one remaining provision. Response at 5. Consequently, these provisions are not before us and will not be addressed further in this decision.
Footnote # 4 for 55 FLRA No. 164 - Authority's Decision
The Union does not define the term "revalidated." However, because the Agency's claims of nonnegotiability are not based on it, the meaning of the term is not necessary to the analysis of the negotiability of the provision.
Footnote # 5 for 55 FLRA No. 164 - Authority's Decision
The term "appraisal period" is defined in OPM regulations as "the established period of time for which performance will be reviewed and a rating of record will be prepared." 5 C.F.R. § 430.203. "Appraisal system" is defined as "a framework of policies and parameters established by an agency . . . for the administration of performance appraisal programs[.]" 5 C.F.R. § 430.203. "Appraisal program" is defined as "the specific procedures and requirements established under the policies and parameters of an agency appraisal system." Id. 5 C.F.R. § 430.204(b)(3)(i) provides that an agency appraisal system must specify the flexibilities that an appraisal program has for setting the length of the appraisal period. 5 C.F.R. § 430.207(a) provides that appraisal programs "shall establish a minimum period of performance that must be completed before a performance rating may be prepared." Because the Agency interprets the minimum appraisal period established by its regulations as requiring an employee to perform 60 days of Agency work in order to receive an appraisal, the proposal would create a minimum appraisal period for Union representatives that is shorter than the minimum appraisal period for other unit employees.
Footnote # 6 for 55 FLRA No. 164 - Authority's Decision
5 C.F.R. § 430.210(a) provides that "OPM shall review and approve an agency's performance appraisal system(s)." For the definition of "appraisal system," see n.5, supra. See also the discussion at Section IV.B.2. of this decision, infra.
Footnote # 7 for 55 FLRA No. 164 - Authority's Decision
The Union additionally claims that the provision is either a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute. It is not necessary to address these claims. The Agency argues that the provision is outside the duty to bargain under section 7117(a)(1) of the Statute only because it is inconsistent with law other than the management rights provisions of section 7106 and with a Government-wide regulation. Section 7106(b)(2) and (3) is not an exception to section 7117(a)(1). See, e.g., Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Medical Center, Syracuse, New York, 44 FLRA 821, 838 (1992).
Footnote # 8 for 55 FLRA No. 164 - Authority's Decision
(a) Each agency shall establish at least one appraisal program of specific procedures and requirements to be implemented in accordance with the applicable agency appraisal system. At a minimum, each appraisal program shall specify the employees covered by the program and include the procedures and requirements for planning performance (as specified in § 430.206), monitoring performance (as specified in § 430.207), and rating performance (as specified in § 430.208).
Footnote # 9 for 55 FLRA No. 164 - Authority's Decision
5 C.F.R. § 430.206(a) provides that an appraisal program "shall designate an official appraisal period for which a performance plan shall be prepared, during which performance shall be monitored, and for which a rating of record shall be prepared." For the relevant text of 5 C.F.R. § 430.207(a), see n.5, supra.
Footnote # 10 for 55 FLRA No. 164 - Authority's Decision
Prior to 1995, OPM regulations prescribed a minimum appraisal period of not less than 90 days or not more than 120 days. 5 C.F.R. § 430.205(b) (1994). See Hawaii Federal Employees Metal Trades Council, AFL-CIO and U.S. Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, 34 FLRA 873, 875-76 (1990). The Authority has noted that, when OPM revised part 430 in 1995, OPM intended to "deregulate" the performance appraisal process. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1274-75 (1997) (Patent and Trademark Office).
Footnote # 11 for 55 FLRA No. 164 - Authority's Decision
There is no dispute that the regulations contained in 5 C.F.R. Part 430 are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See, e.g., International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Pacific Northwest Region, Grand Coulee Project Office, Grand Coulee, Washington, 45 FLRA 597, 601-02 (1992).
Footnote # 12 for 55 FLRA No. 164 - Authority's Decision
Footnote # 13 for 55 FLRA No. 164 - Authority's Decision
By the phrase "union membership" in this test, the Authority appears to mean membership per se, as opposed to union activities, such as are involved in this case. The cases referenced by the Authority in NFFE, Local 1453 as cases which turned on "union membership" were cases in which a union differentiated between employees on the basis of membership in the union. See National Treasury Employees Union and National Treasury Employees Union Chapter 204, 18 FLRA 299, 301-02 (1985); National Treasury Employees Union and National Treasury Employees Union Chapter 121, 16 FLRA 717 (1984), reversed sub nom. 800 F.2d 1165 (D.C. Cir. 1986), petition for rehearing en banc denied, November 12, 1986. As an example of a case in which union membership was not a factor, the Authority cited American Federation of State, County and Municipal Employees, Local 2477, AFL-CIO, 22 FLRA 739 (1986), in which the Authority adopted an ALJ's decision finding the union breached its duty of fair representation by failing to represent a unit employee based on that employee's activities on behalf of a rival union. NFFE, Local 1453, 23 FLRA at 689 n.3.
Footnote # 14 for 55 FLRA No. 164 - Authority's Decision
Our conclusion is consistent with private sector precedent. In this regard, it has consistently been recognized that unions confront a variety of conflicting interests in representing all unit employees and must be afforded a "wide range of reasonableness" in resolving those conflicting interests. See, e.g., Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953). Consistent with this discretion, "contract provisions involving disparate treatment of distinct classes of workers" do not necessarily result in discrimination. Williams v. Pacific Maritime Association, 617 F.2d 1321, 1330 (9th Cir. 1980), cert. denied 449 U.S. 1101 (1981). Moreover, contract provisions adversely affecting the interests of bargaining-unit members do not breach the duty of fair representation merely because of that adverse effect. See Dwyer v. Climatrol Industries Inc., 544 F.2d 307 (7th Cir. 1976), cert. denied, 430 U.S. 932 (1977).
Footnote # 15 for 55 FLRA No. 164 - Authority's Decision
Under the Authority's revised regulations governing negotiability appeals, we will in some cases now resolve bargaining obligation disputes in a negotiability proceeding. However, the Authority does not make unfair labor practice determinations in negotiability proceedings. See, 5 C.F.R. § 2424.30(B)(2). In this connection, the Authority made clear that unfair labor practice remedies are not available in negotiability proceedings. See 5 C.F.R. § 2424.40(a). Therefore, even if the Authority were to make an unfair labor practice determination, no remedy is available. As such, we do not understand the dissent's assertion that an insistence that unfair labor practice determinations be made in unfair labor practice proceedings frustrates Congressional intent.
Footnote # 16 for 55 FLRA No. 164 - Authority's Decision
On this point, we agree completely with the dissent that the question before us "is not whether the Agency has committed an unfair labor practice, but whether its disapproval of certain contract provisions is correct because the provisions are inconsistent with Federal law." Dissent at 2. However, we note that, in concluding that the proposal is not inconsistent with section 7114(a)(1), we have resolved the Agency's claim that the proposal would require it to engage in unlawful discrimination. See Statement of Position at 5-6.