[ v11 p247 ]
The decision of the Authority follows:
11 FLRA No. 52 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON, D.C. Agency Case No. O-NG-250 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises issues concerning the negotiability of a Union proposal establishing a crediting plan for bargaining unit positions. /1/ The text of the proposal is set forth in the Appendix. The Union's proposal would establish a crediting plan for bargaining unit positions whereby applicants would be evaluated against job requirements for positions based upon five factors (criteria). The Agency essentially alleges that the proposal is inconsistent with management's rights to hire, to determine the personnel by which Agency operations shall be conducted, and to make selections for appointments from among properly ranked and certified candidates for promotion or from any other appropriate source under section 7106(a)(2) of the Statute. The Agency also contends the proposal is inconsistent with Federal Personnel Manual (FPM) Supplement principles concerning the disclosure of crediting plans and with FPM merit promotion requirements. In National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983), the U.S. Customs Service similarly contended that two union proposals which established crediting plans for merit promotions regarding two bargaining unit positions were inconsistent with management's rights under section 7106(a)(2). In that case, because the proposals only established the criteria for evaluating candidates, any of which management could select for appointment, and further, since under such crediting plans management would retain the right to determine the personnel and the knowledge, skills, and abilities which an employee must possess in order to do the work of the position, the Authority found the proposals constituted a negotiable procedure which did not prevent the agency from acting at all to exercise its rights under section 7106(a)(2) to make selections when filling positions, to determine the personnel by which agency operations would be conducted, or to hire employees in the agency. The Authority also considered therein an agency argument that the provisions of subchapter S6, FPM Supplement 335-1 precluded it from disclosing or negotiating over the content of its crediting plans. The Authority found that disclosure of the crediting plans set forth in the union's proposals was not inconsistent with the provisions of the FPM Supplement because if all candidates had equal access to the content of the crediting plan, no candidate would be disadvantaged by its disclosure nor would the selection process be compromised. Thus, the FPM Supplement did not bar negotiations on the proposed crediting plans in that case. As already mentioned, the proposal in dispute herein would establish a crediting plan by which the qualifications of candidates for bargaining unit positions would be evaluated against the job requirements established by management to determine the extent to which each candidate possesses the qualifications for the position. Nothing in the proposal would require the Agency to select a specific candidate or to make a selection from a particular certificate of candidates. In this regard, the Union states, "the union proposal is clearly related only to procedures utilized in the promotion process and in no form or manner restricts or impedes management's right to make the ultimate selection." /2/ This crediting plan proposal is thus substantially identical to Union Proposals 1 and 2 in U.S. Customs Service, Region II and for the reasons set forth in that case is not inconsistent with management's rights under section 7106(a)(2) of the Statute nor with the disclosure principles set forth in FPM Supplement 335-1, subchapter S6-1. As to the Agency's additional argument that the proposal is inconsistent with a Government-wide rule or regulation under section 7117(a)(1) of the Statute, /3/ Requirement 1 of subchapter 1-4, chapter 335 of the FPM provides: Each agency must establish procedures for promoting employees which are based on merit and are available in writing to candidates. . . . Actions under a promotion plan-- whether identification, qualification, evaluation, or selection of candidates-- . . . shall be based solely on job-related criteria. Under the plain language of portions of Sections 5K(1) and (3) of the proposal, when applicants are evaluated for a position, points or credit will be assigned for non job-related experience and education. Although an agency has discretion in its development of merit promotion procedures under chapter 335 of the FPM, such procedures must be based on job-related factors. Therefore, under the cited FPM requirement, an agency would not have the discretion to establish an evaluation plan which allows credit for a factor which has no relation to the position being filled. Thus, these portions of Sections 5K(1) and (3) of the proposal are inconsistent with chapter 335, subchapter 1-4, Requirement 1, of the FPM. Thus, it must be decided whether the merit promotion requirements in chapter 335 of the FPM constitute a "Government-wide rule or regulation" within the meaning of the Statute. Section 335.103 of part 335 of title 5, Code of Federal Regulations, requires each agency to adopt and administer a "program designed to insure a systematic means of selection for promotion according to merit. The promotion program shall conform with the standards and requirements of OPM." The requirements for agency merit promotion plans, as mentioned above, are set forth in chapter 335, subchapter 1-4, of the FPM and are applicable to Federal civilian employees in the competitive service within the executive branch of the Government. /4/ Thus, FPM chapter 335, subchapter 1-4, is generally applicable to the Federal civilian work force so as to be "Government-wide" within the meaning of section 7117(a)(1) of the Statute. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). As to whether the requirements of FPM, chapter 335, subchapter 1-4, constitute a "rule or regulation" within the meaning of section 7117(a)(1), as stated previously, the Office of Personnel Management (OPM) is required by regulation to establish standards and requirements with which agency promotion programs must conform. See 6 CFR 335.103. The requirements regarding agency procedures for promoting employees are set forth in subchapter 1-4 of chapter 335 and constitute OPM's determination of the policies necessary to insure that agency promotion procedures are based on merit. Thus, the Authority finds that FPM, chapter 335, subchapter 1-4, regarding merit promotion requirements, is a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute, and would bar negotiation on a conflicting union proposal. See National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colo., 9 FLRA No. 20 (1982). Therefore, since portions of Sections 5K(1) and (3) of the proposal would require the Agency to allow credit for non job-related criteria, these portions are inconsistent with the merit promotion requirements of chapter 335 of the FPM and are outside the duty to bargain under section 7117(a)(1) of the Statute. As to the balance of the proposal, Sections 5K(4) and (5) and portions of (1) and (3) specifically provide for the evaluation of applicants in relation to the position being filled and thus would constitute job-related criteria. Section 5K(2) does not state that the consideration of applicants' performance evaluations must be in terms of the applicant's ability to perform in the vacant position but there is nothing in the language of the proposal or the record indicating the Union intended otherwise. Moreover, Requirement 3 of subchapter 1-4 expressly provides that, "Due weight shall be given to performance appraisals and incentive awards;" thus, under FPM requirements, an agency's merit promotion procedures should provide for consideration of applicants' performance appraisals. Therefore, the Authority finds that Sections 5K(2), (4), (5) and the job-related portions of Sections 5K(1) and (3) of the proposal are not inconsistent with the merit promotion requirements of subchapter 1-4 of chapter 335 of the FPM. ORDER Pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Union's petition for review relating to the non job-related portions of Sections 5K(1) and (3) of the proposal be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on all other portions of the proposal. /5/ Issued, Washington, D.C., February 3, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX Union Proposal Article 7 Section 5 K. The Board will evaluate each applicant based upon each of these five (5) factors, assigning points for each factor based upon the following considerations: 1) Experience: (Not to exceed eight (8) points in total scores) - Experience will be carefully evaluated and credited in terms of its type, quality, recency and depth. Using the following three quality levels, indicate the level to which the experience has prepared the candidate to perform the duties of the position being filled. Excellent (8 points): Experience in your judgment most relevant for the position being evaluated; i.e., experience in the same position, a trainee or understudy for more than one year, or a position next lower in the line of work to the position being evaluated that gives good knowledge with the skills and abilities required to perform the work of the position being filled. (There would be little or no need for additional training to perform the duties of the position.) Good (6 points): Experience in your judgment that is good for the position being filled; i.e. a trainee or understudy with less than one year in the position next below in the same line of work as the position being evaluated; positions similar to those required for the position being filled. (A need for a limited amount of additional training would be indicated). Moderate (4 points): Experience in your judgment that is acceptable and qualifying but provides only a general knowledge of skills, techniques and abilities which may be adopted to the job being filled; stale experience more than five years old without intervening experience in the same line of work. (A need for extensive training would be indicated). Unrelated (1-3 points). 2) Supervisory Evaluations of Performance: (Not to exceed 6 points). The overall performance evaluation will be evaluated to determine which of the following evaluation ratings are most indicated: Outstanding = 6 points Exceeds Expectations = 5 points Moderate = 4 points Weak = 1-3 points 3) Education: (Not to exceed 4 points). Formalized study successfully completed in a school above high school level will be evaluated and rated in terms of the following: (Excellent) = 4 points (Good) = 3 points (Moderate) = 2 points (Limited) = 1 point Job Related Non Job Related Masters Degree 4 3 Bachelor Degree 3 2 90 Semester Hours 2(18 1 30-89 Semester Hours 1 0 4) Awards: (Not to exceed 4 points) - Evaluate in terms of relative importance to the requirements of the position being filled. Consider the qualifications demonstrated or implied by the awards, such as initiative, resourcefulness, overall performance, etc. The award indicated should be evaluated as indicated below: Quality Performance Increase (QPI) Award 4 points Outstanding Performance Rating 4 points Honor Award 4 points Sustained Superior Performance (SSP) Award 3 points Special Achievement Award 3 points Approved Suggestion 2 points 5) Miscellaneous, including interviews, training, outside activities, etc. (Not to exceed 3 points). The factor allows credit for an applicant's additional activities which demonstrate his/her potential to perform in the vacant position. (Excellent) = 3 points (Good) = 2 points (Moderate) = 1 point (Limited) = 0 points --------------- FOOTNOTES$ --------------- /1/ It is noted that the Union has filed numerous unfair labor practice charges concerning the Agency's refusal to disclose various crediting plans. The Agency claims that the issues involved in those charges and in the instant case are the same and the Union must select, pursuant to section 2423.5 of the Authority's Rules and Regulations, whether to proceed first with the unfair labor practice charges or this negotiability case. Since the issues involved in the unfair labor practice charges concern solely the Agency's failure to disclose the contents of crediting plans whereas this appeal concerns the negotiability of the contents of a crediting plan, it is clear that the issues involved are not the same and no selection is required. /2/ Union Reply Brief at 4. /3/ Section 7117(a)(1) provides: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. /4/ See 5 U.S.C. 3301-3302, 5 CFR 210.101(b), E.O. 10577, and E.O. 9830. /5/ In deciding that Sections 5K(2), (4), (5) and the job-related portions of Sections 5K(1) and (3) of the proposal are within the duty to bargain, the Authority makes no judgment as to their merits.