[ v14 p283 ]
The decision of the Authority follows:
14 FLRA No. 53 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and DEPARTMENT OF THE ARMY, KANSAS CITY DISTRICT, CORPS OF ENGINEERS Agency Case No. O-NG-474 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of four Union proposals. /1/ Upon careful consideration of the entire record, including the contentions of the parties, the Authority makes the following determinations. Union Proposal 1 Section 2.b Major Job Element means a component of an employee's job that is not of sufficient importance in itself that performance below the minimal level requires removing, demoting or withholding a within-grade increase of the employee. Appraisals of Major Job Elements may be used as a basis for other personnel decisions which include recognizing and rewarding employees whose performance so warrants, and as a basis for determining training needs. (Only the underlined portion of the proposal is in dispute.) Under Union Proposal 1 management could deny a within-grade increase to an employee only if the employee performed "below the minimal level" in a "critical," as opposed to a "major," element. In this regard, applicable Army regulations define a "major element" as a major duty or responsibility of a position; and such elements could include both critical and noncritical elements. /2/ Under applicable Government-wide regulations the granting of a within-grade increase must be based on an overall employee performance rating of fully acceptable (fully satisfactory or fully successful) as established in the agency's performance appraisal system. /3/ Understood in terms of this regulatory requirement, therefore, and consistent with the Union's stated intent, /4/ Union Proposal 1 would preclude management from establishing, as a criterion for fully acceptable overall performance, a level of performance which would include assessment of performance in a noncritical "major" element. Conversely, the proposal would require management to establish as a criterion for the granting of a within-grade increase a standard of overall performance which would encompass even minimally satisfactory performance in one or all major job elements. In thus prescribing the level of performance which would evidence an "acceptable level of competence," i.e., performance which would merit an overall rating of fully acceptable, so as to qualify an employee for a within-grade increase, Union Proposal 1 has the same effect as Union Proposal 6 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA No. 2 (1984), which established the quality of performance necessary to attain a positive acceptable level of competence rating. In that case, the Authority held, relying on its decision in American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA No. 96 (1984), that by establishing the performance requirements for a given level of performance, i.e., the granting of a within-grade increase, the proposal at issue directly interfered with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. /5/ Thus, for the reasons more fully set forth in the Department of Justice and Office of Personnel Management decisions, Union Proposal 1 herein, which likewise establishes the level of performance required to receive a within-grade increase, directly interferes with management's rights to direct employees and assign work and is outside the duty to bargain. /6/ Union Proposal 2 Section 2.c Performance Standards is the description of the level of accomplishment or achievement for performance of the duties and responsibilities of a position or group of positions; expressed as a range of performance in terms such as: quality, quantity, timeliness, etc. As required by this contract, performance standards for each critical element will be established for five levels of performance, e.g., exceptional, highly successful, fully successful, marginal, and unsatisfactory. (Only the underlined portion of the proposal is in dispute.) Union Proposal 3 Section 2.e The following definitions shall apply to the summary or overall performance appraisal rating: (1) Exceptional. Performance that meets the performance standard for exceptional performance in one or more critical elements and at least meets the performance standards for fully successful performance for all other critical elements. (2) Highly successful. Performance that meets the performance standard for highly successful performance in one or more critical elements and meets the performance standard for fully successful performance for all other critical elements. (3) Fully successful. Performance that meets the performance standard for fully successful performance for all critical elements. (4) Marginal. Performance below the performance standard for fully successful performance for one or more critical elements, but at least meets the performance standard for marginal performance for all critical elements. (5) Unsatisfactory. Performance that fails to meet at least the performance standard for marginal performance in one or more critical elements. Union Proposal 2 requires the Agency to establish five rating levels for each critical element. Union Proposal 3 establishes five rating levels for appraising an employee's overall performance and sets forth criteria for determining the quality of performance necessary to achieve a given overall rating. In this regard, Union Proposals 2 and 3 have the same effect as the proposal at issue in American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA No. 96 (1984), which prescribed the number of rating levels to be used for each critical element and for overall evaluations, and the level of performance which would warrant a given overall rating. In that case, the Authority held that the determination of the number of performance levels for both individual job elements and overall performance and the establishment of criteria for assessing the overall level of performance of an employee were essential aspects of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Thus, for the reasons more fully set forth in the Department of Justice decision, Union Proposals 2 and 3 are outside the duty to bargain under the Statute. /7/ Union Proposal 4 Section 6.a When an employee's performance in one or more critical elements fails to meet the established performance standard for fully successful, but meets the established standards for marginal performance, the supervisor will utilize the procedures in Section 7. of this Article. If after fulfilling the requirement of Section 7., the employee's performance remains marginal, the supervisor may take action to withhold the employee's within-grade increase. The Agency alleges only that an Army regulation, AR 690-400, chap. 430, bars negotiation on Union Proposal 4. Under section 7117(a)(2) of the Statute and subpart B of Part 2424 of the Authority's Rules and Regulations, an agency regulation can bar negotiations on a conflicting union proposal only if a compelling need exists for such regulation. The agency bears the burden of coming forward with affirmative support for its assertion that the regulation relied on bars negotiations because there is a compelling need under the Authority's criteria. 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). In the instant case, while the Agency identifies the provisions of its internal regulations with which the Union's proposal allegedly conflicts, it does not cite any of the Authority's compelling need criteria nor adduce any evidence to support a conclusion that those regulations meet the requirements of any of the criteria. /8/ Thus, the Agency has failed to support its allegation that a compelling need exists for the regulations upon which it relies to bar negotiation of Union Proposal 4. Moreover, the Agency has not alleged that Union Proposal 4 is in any other manner inconsistent with applicable law, rule or regulation. Therefore, Union Proposal 4 is within the Agency's duty to bargain under the Statute. Accordingly, for the foregoing reasons, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as to Union Proposals 1, 2, and 3 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 Union Proposal 4. /9/ Issued, Washington, D.C., April 20, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its Statement of Position in response to the Union's appeal, the Agency contends for the first time that two additional Union proposals, Section 1 and Section 10, are outside the duty to bargain. These proposals were not appealed by the Union and, therefore, they are not before the Authority at this time. See section 7117(c)(3) of the Statute and section 2424.1 of the Authority's Rules and Regulations. /2/ Army Regulation AR 690-400, chap. 430, subchap. 1, para. 1-3 provides, in part: e. Major element. A major duty or responsibility of an employee's position; a major result or output expected from the employee. A major element becomes a critical element when it is important enough to meet the definition of critical element . . . (.) See also Army Regulation AR 690-400, chap. 430, subchap. 2, para. 2-2 and 3; subchap. 3, para. 3-2.b. /3/ 5 U.S.C. 5335(a) provides that an employee in the General Schedule shall be advanced to the next higher within-grade rate at certain intervals provided, among other things, the work of the employee is of an "acceptable level of competence." "Acceptable level of competence" is defined in 5 CFR 531.403 as follows: Sec. 531.403 Definitions. In this subchapter: "Acceptable level of competence" means a level of performance identified by an employing agency at which performance by an employee of the duties and responsibilities of his or her assigned position is fully acceptable (or equivalent terms such as fully satisfactory or fully successful used in the agency's performance appraisal plan) and, in addition to the requirement of Sec. 531.404 of this subpart, warrants advancement of the employee's rate of basic pay to the next higher step of the grade of his or her position. An employee whose current performance with respect to any critical element is unacceptable, as defined in Sec. 430.101(a)(3) of this chapter, is not performing at an acceptable level of competence. Further, absent unusual circumstances, an employee whose overall performance during the waiting period is at the minimum level required for retention in the position but below a fully acceptable level is not performing at an acceptable level of competence. /4/ Union Reply Brief at 4. /5/ Section 7106 of the Statute provides, in relevant part, 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-- (A) to . . . direct . . . employees in the agency . . .; (B) to assign work(.) /6/ In view of the decision herein, the Authority finds it unnecessary to reach the Agency's additional contentions that Union Proposal 1 is inconsistent with applicable Government-wide regulations or barred from negotiation by an Agency regulation for which a compelling need exists. /7/ In view of the decision herein, the Authority finds it unnecessary to reach the Agency's additional contention that Union Proposals 2 and 3 are barred from negotiation by an Agency regulation for which a compelling need exists. /8/ See section 2424.11 of the Authority's Rules and Regulations. /9/ In decision that Union Proposal 4 is within the duty to bargain, the Authority makes no judgment as to its merits.