National Treasury Employees Union (Union) and United States, Department of the Treasury, Internal Revenue Service, Washington, D.C. (Agency)

[ v61 p554 ]

61 FLRA No. 105

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
(Agency)

0-NG-2837

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

May 2, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of three provisions agreed to by the Union and the Internal Revenue Service (IRS) but disapproved by the Department of the Treasury (the Agency) on Agency head review under § 7114(c) of the Statute. [n1]  The Agency filed a statement of position, the Union filed a response, and the Agency filed a reply to the Union's response.

      For the following reasons, we dismiss the petition for review.

II.      Provisions 1, 2 and 3 (Article 13, Sections
          5(C)(1)(e), 5(D), and 5(E)(3)) [n2] 

      Provision 1 (Article 13, Section 5(C)(1)(e))

The Employer has determined that the following procedure shall be used for ranking applicants for a position that is not covered by [Provision 3].
Add one (1) point (up to a maximum of three (3) points) for a performance award in accordance with the Joint Performance Award Agreement, and for each Quality Step Increase (QSI), or performance-related monetary Special Act Award (except Manager's Awards) approved in the last three (3) years[.]

      Provision 2 (Article 13, Section 5(D))

As an alternative to the provisions above, when filling vacancies above the journey level, if all eligible candidates are currently in the same series as the position to be filled, the Employer will multiply the average critical job element rating from the employee's appraisal by ten (10). This score plus the performance related award points will be used to establish the [best qualified (BQ)] list in rank order. If any eligible candidate has a different set of performance aspects or additional performance aspects, the Employer will use the ranking process outlined above.

      Provision 3 (Article 13, Section 5(E)(3))

The Employer has determined that the ranking of applicants for GS-8 and below positions will be accomplished in the following manner:
Incentive Awards: Incentive awards, including Quality Step Increases approved for the employee within three (3) years prior to the closing date of the announcement will be evaluated by the ranking official who will award ranking points (up to a maximum of five (5) as detailed below):
a.      Two (2) points for each Quality Step Increase;
b.      Two (2) points for each PMS Performance Award;
c.      Two (2) points for each Suggestion [ v61 p555 ] Award of $150 or more;
d.      One (1) point for each other Suggestion Award;
e.      One (1) point for each monetary Special Act Award (except Manager's Awards) that is
         performance related and non-mandatory (total points awarded not to exceed three (3)
         points); and
f.      One (1) point for each accepted system change.

III.     Meaning of the Provisions

      It is undisputed that Provision 1 specifies the number of points that will be given for different types of performance-related awards when rating and ranking applicants for a position.

      It also is undisputed that Provision 2 establishes an alternative formula for rating and ranking applicants. Specifically, as an alternative to Provision 1, Provision 2 provides that candidates will be assigned certain numbers of points based on their ratings on critical job elements for positions in the same series as the position being filled. Provision 2 also provides that the total of these points will be added to points for performance-related awards and that the sum of these amounts will establish the best qualified list in rank order.

      Further, it is undisputed that Provision 3 sets forth a formula for rating and ranking candidates for a category of positions (specifically, positions rated GS-8 and below) different from those covered by Provisions 1 and 2. Provision 3 assigns specific numbers of points for quality step increases, performance awards, suggestion awards, special act awards, and accepted system changes.

IV.     Positions of the Parties

A.     Agency

      The Agency argues that the provisions are contrary to 5 C.F.R. § 300 because they would establish employment practices that are not based on a job analysis of the particular position or positions to be filled. [n3]  The Agency contends that Provisions 1, 2 and 3 conflict with those regulations because they require that certain numbers of points be assigned to various awards without regard to whether the awards are relevant to the positions being filled. Further, according to the Agency, the provisions recognize only awards for service at the IRS, which discriminates against non-IRS candidates for non-merit reasons, in violation of 5 U.S.C. § 2301(b)(1). [n4] 

B.     Union

      The Union asserts that the provisions do not conflict with 5 C.F.R. § 300. According to the Union, the IRS should be required to perform the requisite job analyses, and the Agency should not make a final determination about the negotiability of the provisions until after the requisite job analyses are completed. In this connection, the Union contends that the Agency has the authority to require the IRS to take any action that the Agency deems necessary.

      According to the Union, the provisions set forth procedures that will apply in ranking employees already deemed equally qualified by application of the Agency's own selection criteria. For support, the Union cites Overseas Educ. Ass'n, Inc., 29 FLRA 734 (1987) (OEA), aff'd [ v61 p556 ] in part on other grounds sub nom., Overseas Educ. Ass'n v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988).

      With regard to the failure to credit non-IRS awards, the Union asserts that "[t]he parties agreed that absent any objective basis for determining [non-IRS] awards' criteria and importance, there was no way to determine how to factor these awards into the selection process." Response at 73. As a result, the Union claims, it is "rational, fair and meritorious" to exclude consideration of non-IRS awards from the selection criteria. Id.

      The Union argues that, under Article 2, Section 1 of the parties' agreement, the provisions should be construed and administered in a manner that is consistent with law and government-wide regulation, if possible. [n5]  With regard to Provisions 1 and 3, the Union asserts that, "[d]uring negotiations of this roll-over provision, the parties agreed that the disputed language [meets] the requirements of" 5 C.F.R. § 300, and "[t]he [Agency's] subsequent assertion that 5 C.F.R. § 300 applies . . . should not serve as a bar" to the provisions. Id. at 72, 71, 76, 75.

V.     Analysis and Conclusions

      As noted previously, employment practices of the Federal government must be based on a job analysis to identify: (1) the "basic duties and responsibilities" of a position or group of positions; (2) the "knowledges, skills, and abilities required to perform the duties and responsibilities" of the position or group of positions; and (3) "[t]he factors that are important in evaluating candidates" for the position or group of positions. 5 C.F.R. § 300.103(a). There must be a "rational relationship between performance in the position to be filled . . . and the employment practices used[,]" proof of which includes a showing that "the employment practice was professionally developed." 5 C.F.R. § 300.103(b). The term "employment practices" includes "the development and use of examinations, qualification standards, tests, and other measurement instruments." 5 C.F.R. § 300.101. This term was meant to be given a "broad and inclusive meaning[.]" Dowd v. United States, 713 F.2d 720, 723 (Fed. Cir. 1983).

      The Authority has held that 5 C.F.R. § 300 applies to crediting plans for candidates applying for positions. See NTEU, 55 FLRA 1174, 1182-83 (1999) (requiring agency to add points to candidates' scores based on seniority contrary to regulation) (Member Wasserman dissenting in part on other grounds). In reaching this conclusion, the Authority relied on the decision of the United States Court of Appeals for the District of Columbia Circuit in Dep't of Treasury v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985) (Treasury). In Treasury, the court addressed a proposal that specified the factors that a merit promotions board could consider - experience, supervisory evaluations of performance, education, awards, and miscellaneous factors - and the number of points that could be assigned to each. See id. at 1120. The court found that, because the proposal assigned specific points for these factors without reference to the demands of specific occupations, the requirement for a job analysis was not satisfied. See id. at 1122. In NTEU, 55 FLRA at 1182-83, the Authority applied this precedent and held that a provision that provided employees with credit based on seniority did not satisfy the regulatory requirement for a job analysis because the provision made no reference to the requirements of specific occupations and was not tailored to a position or group of positions.

      Provisions 1, 2 and 3 all involve crediting plans for applicants for promotions. Provision 1 provides that candidates will be ranked by assigning specific numbers of points to certain types of awards. Provision 1 applies without regard to the demands of specific occupations and is not designed to apply to a particular position or group of positions. This supports a conclusion that Provision 1 fails to satisfy the requirements of 5 C.F.R. § 300. See Treasury, 762 F.2d at 1122; NTEU, 55 FLRA at 1182-83.

      Provision 2 provides, as an alternative to Provision 1, that candidates will be assigned certain numbers of points based on their ratings on critical job elements for positions in the same series as the position being filled. Provision 2 also provides that the total of these points will be added to points for performance-related awards and that the sum of these amounts will establish the best qualified list in rank order. Although the assignment of points for critical job elements applies only to positions in the same job series as the position being filled, the assignment of points for performance-related awards is not so limited. Instead, this aspect of Provision 2 applies without regard to the demands of specific occupations and is not designed to apply to a particular position or group of positions. This supports a conclusion that Provision 2 also fails to satisfy the requirements of 5 C.F.R. § 300. See Treasury, 762 F.2d at 1122; NTEU, 55 FLRA at 1182-83. [ v61 p557 ]

      Provision 3 sets forth a formula for rating and ranking candidates for a category of positions (specifically, positions rated GS-8 and below) different from those covered by Provisions 1 and 2. In particular, Provision 3 assigns specific numbers of points for quality step increases, PMS Performance Awards, suggestion awards, special act awards, and accepted system changes. As with Provision 1 and the aspect of Provision 2 involving points for performance-related awards, Provision 3 applies without regard to the demands of specific occupations and is not designed to apply to a particular position or group of positions. This supports a conclusion that Provision 3 also fails to satisfy the requirements of 5 C.F.R. § 300. See Treasury, 762 F.2d at 1122; NTEU, 55 FLRA at 1182-83.

      The Union does not dispute that the measurement devices set forth in the three provisions are not based on job analyses, as required by 5 C.F.R. § 300. Instead, the Union claims that it is premature for the Agency to declare the provisions nonnegotiable and should be required to wait until after the IRS conducts any necessary job analyses. However, the court in Treasury rejected a similar claim, holding that "the mere permissibility of an ex post facto job analysis, and the mere absence of a showing that such an analysis, if conducted, would invalidate the previously adopted measurement devices, falls far short of fulfilling the requirement that those devices `be based on a job analysis to identify . . . [t]he factors that are important in evaluating candidates.'" 762 F.2d at 1122 (quoting 5 C.F.R. 300.103(a)) (emphasis in decision). Thus, the fact that the IRS could later conduct job analyses for individual positions or groups of positions does not render Provisions 1, 2 and 3 not contrary to law.

      The Union also claims that, under Article 2, Section 1 of the parties' agreement, the provisions should be construed and administered in a manner that is consistent with law and government-wide regulation, if possible. This is consistent with the Authority's practice. In this regard, where proposals have stated that they should be interpreted in a manner that is consistent with law and regulation, the Authority has relied on that fact in determining their negotiability. See NFFE, Council of Veterans Admin. Locals, 31 FLRA 360, 450 (1988) (NFFE), remanded without decision, 88-1314 (D.C. Cir. Sept. 27, 1988), petition dismissed on other grounds on remand, 33 FLRA 349 (1988); AFGE, AFL-CIO, Local 3477, 14 FLRA 427, 427-28 (1984) (Local 3477); AFGE, AFL-CIO, Local 32, 3 FLRA 784, 785 (1980) (Local 32). The Authority also assesses whether the wording and/or explained meaning of the proposal is otherwise consistent with law and regulation. See NFFE, 31 FLRA at 450 (Authority found "no apparent inconsistency" between proposal and cited regulations); Local 3477, 14 FLRA at 427-28 (finding union's statement of intent was that "sole procedures" of proposal were not meant to replace, but to supplement provisions of the Agency's procedures and the requirements of law and regulation); Local 32, 3 FLRA at 787 (finding proposals were not "incompatible or irreconcilable" with the cited regulations).

      The Union provides no explanation as to how Provisions 1, 2 and 3 can be construed and administered in a manner that is consistent with 5 C.F.R. § 300. Rather, as discussed above, the provisions establish clear, absolute measurement devices that fail to meet the requirements of 5 C.F.R. § 300. As the plain wording of the provisions does not permit an interpretation that is consistent with law, and the Union has not provided one, the Union's claim that the provisions should be interpreted in a manner consistent with law and regulation under Article 2, Section 1 does not provide a basis for finding the provisions consistent with law.

      With respect to the Union's claim that the parties at the local level agreed that this provision meets the requirements of 5 C.F.R. § 300, there is no basis for concluding that such agreement governs the Authority's assessment of the provision's consistency with law. Additionally, the Union's assertion that Provisions 1 and 3 are roll-over provisions from a previous agreement does not demonstrate that the provisions are negotiable. In this regard, the mere fact that parties have agreed to a provision in the past does not provide any basis for finding the provision not contrary to law. See Nat'l Air Traffic Controllers Ass'n, Rochester Local, 56 FLRA 288, 291-92 (2000).

      Finally, the Union's reliance on OEA, 29 FLRA 734 -- finding negotiable a provision regarding crediting seniority -- is misplaced. In this regard, the issue presented in that decision was whether the provision was a procedure under § 7106(b)(2) of the Statute, not whether the provision was contrary to 5 C.F.R. § 300. See id. at 791-93.

      For the foregoing reasons, we conclude that Provisions 1, 2 and 3 are contrary to 5 C.F.R. § 300. [n6] 

VI.     Order

      The petition for review is dismissed.



Footnote # 1 for 61 FLRA No. 105 - Authority's Decision

   The petition initially involved twenty-one provisions, but only three provisions - Article 13, Sections 5(C)(1)(e), 5(D) and 5(E)(3) - remain in dispute. See Union Partial Withdrawal of Petition (October 31, 2005). For the convenience of the reader, we number the provisions as Provisions 1, 2 and 3, respectively.


Footnote # 2 for 61 FLRA No. 105 - Authority's Decision

   As the three provisions present similar issues, we address them together.


Footnote # 3 for 61 FLRA No. 105 - Authority's Decision

   5 C.F.R. § 300 provides, in pertinent part:

§ 300.101 Purpose.
For the purpose of this subpart, the term "employment practices" includes the development and use of examinations, qualification standards, tests, and other measurement instruments.
. . . .
§ 300.103 Basic requirements.
     (a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify:
     (1)  The basic duties and responsibilities;
     (2)  The knowledges, skills, and abilities required to perform the duties and responsibilities;
           and
     (3)  The factors that are important in evaluating candidates. The job analysis may cover a
           single position or group of positions, or an occupation or group of occupations, having
           common characteristics.
     (b) Relevance. (1) There shall be a rational relationship between performance in the position to be filled
          . . . and the employment practice used. The demonstration of rational relationship shall include a
          showing that the employment practice was professionally developed. . .

Footnote # 4 for 61 FLRA No. 105 - Authority's Decision

   5 U.S.C. § 2301 provides, in pertinent part:

(b) Federal personnel management should be implemented consistent with the following merit system principles: