12:0643(128)NG - AFSCME Local 2027 and ACTION, Washington, DC -- 1983 FLRAdec NG
[ v12 p643 ]
12:0643(128)NG
The decision of the Authority follows:
12 FLRA No. 128
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, LOCAL 2027
Union
and
ACTION, WASHINGTON, D.C.
Agency
Case No. O-NG-339
DECISION AND ORDER ON NEGOTIABILITY ISSUES
This case comes before the Authority pursuant to section
7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute
(the Statute). The issues presented in the appeal concern the
negotiability of three Union proposals.
Preliminary Matters
The Agency's contention that the Union's petition for review should
be dismissed as untimely filed cannot be sustained. Insofar as appears
from the record, the Union filed its appeal within the appropriate time
period after service upon it of the Agency's written allegation of
nonnegotiability prescribed by section 2424.3 of the Authority's Rules
and Regulations. See American Federation of Government Employees,
AFL-CIO, Local 3385 and Federal Home Loan Bank Board, District 7,
Chicago, Illinois, 7 FLRA No. 58 (1981). Likewise, the Union's
contention that the Agency's statement of position was untimely filed
and should not be considered cannot be sustained. It is well
established that the time for filing a statement of position begins to
run from the date of receipt by the agency head of a copy of the
completed union appeal. Cf. National Treasury Employees Union, Chapter
66 and Department of the Treasury, Internal Revenue Service, Kansas City
Service Center, Kansas City, Missouri, 2 FLRA 319 (1979) (where union
failed to complete its appeal, it was premature for the agency to file a
statement of position). The record in the present case is that the
Agency did file its statement of position within the prescribed time
period after receipt of the completed appeal, i.e., after the Union
complied with section 2424.5 of the Authority's Rules and Regulations.
Accordingly, the Union's motion for "default judgment" based on alleged
untimeliness is denied. Finally, the Union's election pursuant to
section 2424.5 of the Rules and Regulations to proceed first under the
negotiability appeal procedure instead of the unfair labor practice
procedure applicable in connection with a related ULP charge has
rendered moot the Agency's motion to stay proceedings in this case
pending such election.
Union Proposal 1
Section. Each employee has a right to union representation
(in) all meetings with management involving classification
matters, including desk audits.
Question Before the Authority
The question presented is whether Proposal 1, as alleged by the
Agency, concerns matters related to the classification of a position
which are excluded from the definition of "conditions of employment" by
section 7103(a)(14)(B) of the Statute.
Opinion
Conclusion and Order: Union Proposal 1 is not excluded by section
7103(a)(14)(B) from the definition of "conditions of employment." /1/
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 Proposal
1. /2/ Reasons: Contrary to the Agency's allegation, the proposal does
not concern any matters related to the classification of a position.
That is, it does not concern the specific duties or any other matter to
be taken into account in classifying a position. Rather, consistent
with the language of the proposal, the Union explains its intent that
the proposal provide "a procedure ancillary to (the Union's) right and
obligation to assist employees in pursuing classification grievances
within the scope of the grievance procedure." Thus, on its face, the
proposal merely provides for an employee's right to union representation
in meetings with management involving classification matters but does
not address the substance of such meetings. Such representation is not
a matter relating to the classification of any position and hence is not
excluded from the definition of "conditions of employment" by section
7103(a)(14)(B). Therefore, the proposal is within the duty to bargain.
See American Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Department of
Justice, Immigration and Naturalization Service, 8 FLRA No. 75 (1982)
(Proposal 5), reversed as to other matters sub nom. U.S. Department of
Justice, Immigration and Naturalization Service v. FLRA, No. 82-1622
(D.C. Cir. June 10, 1983).
Union Proposal 2
Section 4. An employee will be deemed to be performing at an
acceptable level of competence for purposes of periodic within
grade increases if the performance in at least one element
exceeded the minimum standard for satisfactory.
Question Before the Authority
The question presented is whether Proposal 2 is, as alleged by the
Agency, inconsistent with a Government-wide regulation and, therefore,
outside the duty to bargain.
Opinion
Conclusion and Order: Union Proposal 2 is inconsistent with a
Government-wide regulation, i.e., 5 CFR 430.202(e). Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
IS ORDERED that the Union's petition for review as to this proposal be,
and it hereby is, dismissed. Reasons: The Union contends that to
obtain a within-grade increase under this proposal an employee's
performance would have to be at least satisfactory in all elements of
the job, including critical elements, and would have to exceed the
satisfactory level in at least one element. The Authority does not
adopt this interpretation because it is contrary to the explicit
language of the proposal which would require that an employee whose
performance exceeds the minimum standard for satisfactory in at least
one element "will be deemed" to have performed acceptably, without
regard to performance in any other job element. /3/ Based on this
literal interpretation of the proposal, the Agency contends that the
proposal is inconsistent with regulations implementing 5 U.S.C. 4301(3),
set forth at 5 CFR 430.202(e), /4/ which require the denial of a
within-grade increase when an employee's performance of any critical job
element falls below a minimum standard.
Acceptable level of competence determinations are actions based upon
an agency's performance appraisal system established under chapter 43 of
title 5 of the U.S. Code. /5/ Parker v. Defense Logistics Agency, 1
MSPB 489, 501-04 (1980). "Unacceptable performance" is defined by 5
U.S.C. 4301(3) to be performance which fails to meet established
performance standards in one or more critical elements of an employee's
position. Pursuant to its authority at 5 U.S.C. 4305, the Office of
Personnel Management, which filed an amicus curiae brief herein,
promulgated 5 CFR 430.202(e) which provides that performance which is
below a minimum standard in any critical element requires remedial
action and the denial of a within-grade increase without regard to
performance on other components of the job. The proposal, on its face,
is inconsistent with this regulation which is generally applicable to
agencies and employees in the Federal civilian work force as a whole,
though not, of course, to every Federal employee. See 5 CFR 430.201(a)
and (b); 5 U.S.C. 4301(1) and (2). Thus, this regulation constitutes a
Government-wide regulation within the meaning of section 7117(a)(1) of
the Statute. /6/ National Treasury Employees Union, Chapter 6 and
Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).
Since the proposal is inconsistent with a Government-wide regulation, it
is outside the duty to bargain. /7/
Union Proposal 3
Section. If there are not more than three qualified in-house
applicants, applicants from outside the Agency may be solicited
and considered. For the purpose of this section, persons who are
members of groups underrepresented at the grade and location of
the vacancy will be considered in-house applicants. The Agency
will actively solicit applicants from these groups at the time the
in-house posting occurs.
Question Before the Authority
The question presented is whether, as alleged by the Agency, Union
Proposal 3 is inconsistent with section 7106(a)(2)(C) of the Statute.
/8/
Opinion
Conclusion and Order: Union Proposal 3 is inconsistent with section
7106(a)(2)(C). Accordingly, pursuant to section 2424.10 of the
Authority's Rules and Regulations, IT IS ORDERED that the Union's
petition for review as to this proposal be, and it hereby is, dismissed.
Reasons: Section 7106(a)(2)(C) of the Statute reserves to management
the right to make selections for appointments from among properly ranked
and certified candidates for promotion or from any other appropriate
source. Thus, the Authority has held that a proposal which limited the
consideration of outside applicants to instances in which there were
fewer than three minimally qualified in-house applicants was
inconsistent with section 7106(a)(2)(C) since management would be
prevented from expanding the area of consideration or from selecting a
candidate from any other appropriate source. National Federation of
Federal Employees, Local 1451 and Navy Exchange, Naval Administrative
Command, Orlando, Florida, 3 FLRA 392 (1980). The proposal in dispute
herein would prevent the Agency from soliciting and considering outside
applicants for positions when there are more than three qualified
"in-house applicants." As such, the proposal is not materially different
from the proposal which was before the Authority in the cited case and
which was held to be outside the duty to bargain under the Statute.
Therefore, for the reasons set forth in Naval Administrative Command,
Orlando, Union Proposal 3 must be held to be outside the duty to
bargain. Cf. Association of Civilian Technicians, Inc., Pennsylvania
State Council and Adjutant General, Department of Military Affairs,
Pennsylvania, 4 FLRA 77 (1980) (proposal which requires only that
consideration be given to unit employees but which does not prevent
management from expanding the area of consideration is within the duty
to bargain). Issued, Washington, D.C., August 25, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7103(a)(14)(B) provides:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters--
. . . .
(B) relating to the classification of any position(.)
/2/ In deciding that Union Proposal 1 is within the duty to bargain,
the Authority makes no judgment as to its merits.
/3/ See American Federation of Government Employees, AFL-CIO, Local
2955 and National Guard Bureau, Office of the Adjutant General, Des
Moines, Iowa, 5 FLRA No. 86 (1981).
/4/ 5 CFR 430.202(e) provides as follows:
Sec. 430.202 Definitions.
In this part, terms are defined as follows--
. . . .
(e) "Critical element" means a component of an employee's job
that is of sufficient importance that performance below the
minimum standard established by management requires remedial
action and denial of a within-grade increase, and may be the basis
for removing or reducing the grade level of that employee. Such
action may be taken without regard to performance on other
components of the job.
/5/ In this regard, 5 U.S.C. 5335(a) provides that an employee in the
General Schedule shall be advanced to the next higher salary rate within
his or her grade at certain intervals provided, inter alia, that the
work of the employee is at an acceptable level of competence as
determined by the head of the agency.
/6/ 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.
/7/ In view of the Authority's decision herein, it is unnecessary to
consider the Agency's additional arguments that the proposal is outside
the duty to bargain.
/8/ Section 7106(a)(2)(C) provides as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source(.)