21:0178(28)NG - AFGE, Local 1923 and HHS, Office of the Secretary, HQ, Office of the General Counsel, SS Division -- 1986 FLRAdec NG
[ v21 p178 ]
21:0178(28)NG
The decision of the Authority follows:
21 FLRA No. 28
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Union
and
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, OFFICE OF THE SECRETARY
HEADQUARTERS, OFFICE OF THE GENERAL
COUNSEL, SOCIAL SECURITY DIVISION
Agency
Case No. 0-NG-557
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)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of six Union proposals. /1/ The proposals concern various
aspects of performance appraisal systems.
II. Procedural Issue
The Agency moved that the Union's petition be dismissed because it
was filed by the national office of the Union (AFGE) and not by a
representative of the local Union (AFGE, Local 1923). Under section
7117(c) of the Statute and section 2424.2 of the Authority's Regulations
a negotiability appeal must be filed by an exclusive representative.
Nothing in either the Authority's Regulations or the Statute precludes
the exclusive representative from designating an agent to file an appeal
on its behalf. The designation of a representative for purpose of
appeal to the Authority is strictly a matter for the Union to decide.
American Federation of Government Employees, AFL-CIO, Local 3028 and
Department of Health and Human Services, Public Health Service, Alaska
Area Native Health Service, 13 FLRA 697 (1984). The Agency's motion to
dismiss is denied.
III. Union Proposal 1
Section 2.A The Administration has the right to establish critical
elements, non-critical elements, and performance standards,
subject to law, regulation and this Agreement.
A. Positions of the Parties
The Agency contends that Union Proposal 1 is outside the duty to
bargain under section 7117(a)(2) of the Statute because the Authority
has not determined that there is no compelling need for a conflicting
agency regulation.
The Union contends that the proposal merely establishes that the
Agency's performance appraisal system will recognize applicable
provisions of the parties' agreement, and does not conflict with
internal agency regulations for which there is a compelling need.
B. Analysis and Conclusion
As a general matter, the Authority has consistently held that general
provisions requiring management to exercise its statutory rights under
section 7105 in compliance with law are within the duty to bargain. See
National Federation of Federal Employees, Local 1497 and Department of
the Air Force, Lowry Air Force Base, Colo., 9 FLRA 151-(1982) (Union
Proposal 2). See also American Federation of Government Employees,
AFL-CIO, National Council of EEOC Locals and Equal Employment
Opportunity Commission, 10 FLRA 3 (1982) (Union Proposal 1), enforced
sub nom. Equal Employment Opportunity Commission v. Federal Labor
Relations Authority, 744 F.2d 842 (D.C. Cir. 1984); cert. granted, 105
S.Ct. 3497 (1985). The Authority has also held that management's
identification of critical elements and the establishment of performance
standards constitute exercises of the rights to direct employees and
assign work under section 7105(a)(2)(A) and (B) of the Statute.
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury
Employees Union v. Federal Labor Relations Authority, 591 F.2d 553 (D.C.
Cir. 1982). Further, the Authority has held that a proposal
incorporating specific restrictions from a Government-wide regulation
directly interfered with a management right because it imposed the
provisions of the regulation as substantive contractual limitations
without regard to the regulation's possible subsequent revision or
elimination. National Federation of Federal Employees, Local 1157 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (proposal
2), affirmed as to other matters sub nom. NFFE, Local 1167 v. FLRA, 681
F.2d 886 (D.C. Cir. 1982): However, this proposal would not limit
management or impose substantive contractual limitations but would only
require the Agency to adhere to any requirements which are in effect at
the time the Agency identifies critical elements and establishes
performance standards.
The Agency's sole contention is that the duty to bargain in good
faith extends to matters like this one covered by Department-level rule
or regulation only if the Authority has determined that no compelling
need exists for the rule or regulation. The compelling need provisions
of the Statute are meant to insure that otherwise negotiable, bargaining
proposals are taken outside the duty to bargain only if the agency
involved demonstrates and justifies an overriding need for the policies
reflected in the rules or regulations to be uniformly applied throughout
the agency. American Federation of Government Employees, AFL-CIO, Local
38-54 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217, 220 (1981). Therefore, an agency must (1)
identify a specific agency-wide regulation; (2) show that there is a
conflict between its regulation and the proposal; and (3) demonstrate
that its regulation is supported by a compelling need with reference to
the Authority's standards set forth in section 2424.11 of its
Regulations. See American Federation of Government Employees, AFL-CIO,
Local 1928 and Department of the Navy, Naval Air Development Center,
Warminster, Pennsylvania, 2 FLRA 450, 454 (1980).
The Agency here has failed to identify or submit to the Authority the
specific provision of internal agency rule or regulation upon which it
relies. It contends only that its Personnel Manual generally bars
negotiation over this proposal. The Authority finds that the Agency has
failed to support its implicit allegation that the Union's proposal is
barred from negotiations because it conflicts with an internal agency
rule or regulation for which a compelling need exists. Id. at 454-55.
The Authority concludes that Union Proposal 1 is within the duty to
bargain.
IV. Union Proposals 2 & 3
Union Proposal 2: Section 2.B, Step 5 The critical and
non-critical elements and individual performance standards will be
communicated to bargaining unit employees on the negotiated
performance evaluation form, prior to the appraisal period. Union
Proposal 3: Section 4.C In addition to assessing the employee's
performance on individual elements, as in "A" above, the
supervisor will evaluate the employee's overall job performance by
summarizing the performance on the negotiated form, using one of
the following five summary ratings: 1. Unsatisfactory. This
appraisal applies if the employee failed to meet one or more
critical job elements regardless of performance on non-critical
job elements. 2. Minimally Satisfactory. This appraisal applies
if the employee only partially met one or more critical job
elements or if the employee fully met all critical job elements
but failed to fully meet a substantial number of non-critical job
elements. 3. Fully Satisfactory. This appraisal applies if the
employee, at a minimum, fully met all critical job elements and
virtually all non-critical job elements or it the employee
exceeded all of the critical job elements and fully met a
substantial number of non-critical job elements. 4. Excellent.
This summary appraisal applies if the employee exceeded all of the
critical elements and virtually all of the non-critical job
exceeded all of the employee substantially exceeded all critical
job elements and fully met a substantial number of non-critical
job elements. 5. Outstanding. This summary appraisal applies if
the employee substantially exceeded all critical job elements and
virtually all non-critical job elements. (All of Proposal 2 and
the underscored portion of Proposal 3 are in dispute.)
A. Positions of the Parties
The Agency contends that Union Proposals 2 and 3 conflict with an
internal agency regulation which requires the use of a standard form by
requiring the use of a negotiated performance evaluation form instead.
It argues that a compelling need exists for this regulation and that the
proposals are, therefore, outside the duty to bargain under section
7117(a)(2) of the Statute. In addition, the Agency contends that by
requiring a "negotiated form" the proposals in essence require
negotiation on performance standards and are outside the duty to bargain
for that reason also.
The Union contends that Proposals 2 and 3 constitute negotiable
procedures that do not conflict with the Agency's regulation. It
further argues that even if there was a conflict the Agency has not
established a compelling need for its regulation.
B. Analysis
1. Compelling Need
The Agency bears the burden of demonstrating a compelling need for
its regulatory requirement that there be uniform Agency-wide use of its
evaluation form. See discussion of Union Proposal 1. The Authority's
illustrative standard for determining compelling need in section
2424.11(a) of its Regulations requires an agency to demonstrate that the
rule or regulation upon which it relies is "essential as distinguished
from helpful or desirable" to achieve certain ends. See American
Federation of Government Employees, AFL-CIO, Local 2875 and Department
of Commerce, National Oceanic and Atmospheric Administration, National
Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory,
Florida, 5 FLRA 441 (1981).
The Agency asserts that its requirement to use a standard form is
essential to accomplishment of its mission or execution of its functions
in a manner consistent with the requirements of an effective and
efficient government. Its arguments in this regard all relate to its
need to maintain control of the content and format of performance
evaluation forms. It claims this control can only be achieved through
uniform use of the form designated as 430-4-B set forth in HHS
Instruction 430-4. The Union states that the information claimed by the
Agency to be necessary is to be included on any negotiated appraisal
form. Union Reply Brief at 4. The Agency itself indicates that the
negotiated form would not be substantively different from and would
contain the "same information" as its own form. Agency Statement of
Position at 3. Since the negotiated performance evaluation form will
contain essentially the same information as the Agency's own form, the
Agency's assertion that use of its form is essential cannot be
sustained.
2. Management Rights
Turning to the Agency's argument that the proposals violate
management rights because they would in essence require bargaining on
performance standards, the Authority has held as a general matter that
proposals which are otherwise consistent with law and regulation and
relate only to particular aspects of performance appraisal systems,
apart from the identification of critical elements and the establishment
of performance standards, are within the duty to bargain. National
Treasury Employees Union and Department of the Treasury, Bureau of the
Public Debt, 3 FLRA 769, 780 (1980), aff'd sub nom. National Treasury
Employees Union v. Federal Labor Relations Authority, 631 F.2d 553 (D.C.
Cir. 1982). Similarly, proposals which establish procedures for the
development and implementation of performance standards and critical
elements, or which establish appropriate arrangements for employees
adversely affected by the application of performance standards critical
elements to them, are within the duty to bargain under section
7106(b)(2) and (3) of the Statute. Id.
If the Union proposals did require the Agency to negotiate concerning
the definitions of its performance standards they would, of course, be
outside the duty to bargain under section 7106(a)(2)(A) and (B) of the
Statute. See discussion of Union Proposal 1. However, nothing in the
disputed language of the proposals nor in Union statements in the record
lends support to the Agency's contention that the proposal's requirement
that a negotiated form be used amounts to negotiation on the definitions
of its performance standards. The Union specifically states that the
definitions contained in the Agency's form would not be affected by
these proposals. Union Reply Brief at 4-5. Since the Union is not
attempting to negotiate on those definitions, the Agency's argument that
the definitions are nonnegotiable is inapplicable to bar negotiations on
Union Proposals 2 and 3.
C. Conclusion
Because the Agency has not demonstrated that its regulation is
supported by a compelling need, it does not bar negotiation on Union
Proposals 2 and 3. Further, the disputed portions of these proposals are
not inconsistent with management rights under section 7106(a)(2) of the
Statute. Union Proposals 2 and 3 establish procedures relating to the
implementation of performance standards and critical elements. They are
within the duty to bargain under section 7106(b)(2) of the Statute.
V. Union Proposals 4 & 5
Union Proposal 4: Section 6 Performance appraisals will whenever
possible be prepared annually based on employee performance
expectations established for the 12 preceding months. Union
Proposal 5: Section 6.B Appraisals are generally due on a regular
schedule annually but may be postponed under (certain)
circumstances(.)
A. Positions of the Parties
The Agency contends that Union Proposals 4 and 5 are inconsistent
with an Agency regulation which provides for performance appraisals to
occur in January or October of each year and for which a compelling need
exists.
The Union contends that its proposals do not conflict with the cited
regulation.
B. Analysis and Conclusion
The Authority has held that prescribing periodic appraisal of
employees on an annual basis is consistent with law and Government-wide
rules or regulations and within the duty to bargain. See American
Federation of Government Employees, AFL-CIO, Local 1968 and Department
of Transportation, Saint Lawrence Seaway Development Corporation,
Massena, New York, 5 FLRA 70 (1981) (Proposal 2), affirmed as to other
matters sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir.
1982), cert. denied, 451 U.S. 926 (1983). The Union here clearly did
not intend to require anything other than annual performance appraisals
and did not link the term "annually" in the proposal to any specific
month when the annual appraisals should occur. Union Reply Brief at 6.
The Authority concludes that the proposals do not conflict with the
Agency's Instruction requiring that annual performance appraisals occur
in January or October of each year. In the absence of a conflict
between the proposals and the Instruction, it is unnecessary to decide
whether the Agency has demonstrated a compelling need for its
regulation. See discussion of Union Proposal 1. The Authority finds
that Union Proposals 4 and 5 are within the duty to bargain.
VI. Union Proposal 6
Section 9.C Should remedial action fail and the employee's
performance continue to be unacceptable after a reasonable
opportunity to demonstrate improvement, the employee may be liable
for adverse action under 5 U.S.C. 43. The appropriate personnel
action will depend on the following considerations: 1. when the
employee is capable of performing another position of the same
grade, the supervisor should propose to reassign the employee to
such a position; 2. when the employee is not capable of
performing a position at the same grade but is capable of
performing a position at a lesser grade, the supervisor should
propose a demotion to a position at the next lower grade; 3. a
proposal of separation should only be proposed when the employee
is determined to be incapable of the performance of any other
position reasonably available.
A. Positions of the Parties
The Agency contends that Union proposal 6 would prohibit it from
demoting an employee for unacceptable performance until he or she had
been given a chance to perform in similar positions of equal grade or
demoting an employee for unacceptable performance until he or she had
been given a chance to perform in similar positions of a lower grade.
The Agency argues that the Union's proposal is contrary to management's
rights under section 7106(a)(2)(A) of the Statute, including the rights
to remove or reduce in grade or pay employees in the Agency.
The Union argues that the proposal preserves the Agency's discretion
to exercise its rights under section 7106(a)(2)(A). It contends that
the proposal is a procedure under section 7106(b)(2) of the Statute
which management will observe in exercising those rights and an
appropriate arrangement under section 7106(b)(3) of the Statute for
employees adversely affected by the exercise of management's right to
take adverse action against employees for unacceptable performance.
B. Analysis and Conclusion
The Authority finds that Union Proposal 5 is substantially identical
to the proposal which the Authority held to be outside the duty to
bargain in National Labor Relations Board Union and National Labor
Relations Board, Office of the General Counsel, 18 FLRA No. 42 (1985).
In the NLRB case, the Authority found that a proposal which similarly
would have required the agency to reassign an employee prior to
terminating or demoting that employee substantively interfered to an
excessive degree with management's rights under section 7106(a)(2)(A) to
remove employees or reduce them in grade or pay. /2/
Additionally, the use of the term "should" in Proposal 6 does not
make the proposal discretionary rather than mandatory. Instead, the
plain language of the proposal would require the Agency in virtually all
instances to reassign an employee prior to terminating or demoting that
employee for unacceptable performance contrary to management's rights
under section 7106(a)(2)(A) of the Statute. See American Federation of
Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank
Board, New York District Office, 13 FLRA 446, 450-52 (1983) (rejecting
union's contention that the phrase "to the extent practicable" removes
substantive limitation that proposal would have placed on agency's right
to identify critical elements) and American Federation of Government
Employees, AFL-CIO, National Border Patrol Council and Department of
Justice, Immigration and Naturalization Service, 16 FLRA 251, 252 (1984)
(rejecting union's contention that the phrase "to the maximum extent
possible" leaves the agency with discretion to exercise its right to
assign work "without inhibition").
The Authority finds that the Agency has provided insufficient support
in the record to decide whether Union Proposal 6 violates additional
management rights under section 7106(a)(2)(A) of the Statute. However,
for the reasons set forth in the NLRB case, we find that Union Proposal
6 is contrary to the Agency's right under section 7106(a)(2)(A) of the
Statute to remove employees or reduce them in grade or pay for
unacceptable performance. We further find that the proposal constitutes
neither a negotiable procedure under section 7106(b)(2) nor an
appropriate arrangement under section 7106(b)(3) of the Statute and
conclude that Union Proposal 6 is outside the duty to bargain.
VII. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposals
1-5. /3/ IT IS FURTHER ORDERED that the Union's petition for review as
to Union Proposal 6 be, and it hereby is, dismissed.
Issued, Washington, D.C., March 27, 1986.
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ This case originally involved eight proposals. The Union has
withdrawn its petition for review as to one, proposed section 7.C, and
the parties have reached agreement as to a second, proposed section 8.2.
These proposals will not be considered further here.
/2/ In its recent decision in National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
(1986), the Authority specifically adopted the rationale of the District
of Columbia Circuit in American Federation of Government Employees,
AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183
(D.C. Cir. 1983), reversing and remanding American Federation of
Government Employees, AFL-CIO, Local 2782 and Department of Commerce,
Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981). Thus, as we
stated in the Kansas Army National Guard decision, we will henceforth
determine whether a proposal constitutes a negotiable "appropriate,
arrangement" under section 7106(b)(3) of the Statute by determining
whether the proposal excessively interferes with the exercise of
management's rights.
/3/ In finding Union Proposals 1-5 to be within the duty to bargain,
the Authority makes no judgment as to their merits.