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14:0427(67)NG - AFGE Local 3477 and Consumer Product Safety Commission -- 1984 FLRAdec NG

[ v14 p427 ]
The decision of the Authority follows:

 14 FLRA No. 67
                                            Case No. O-NG-587
    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
 relating to the negotiability of four Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                             Union Proposal 1
          The purpose of this agreement is to provide the sole procedures
       for a Performance Appraisal System for bargaining unit employees
       in the New York Regional Office, CPSC.  It shall be consistent
       with applicable laws and government-wide regulations.
    The Agency contends that Union Proposal 1 is inconsistent with law
 and regulation in that while it purports to be the "sole procedures"
 governing performance appraisal for unit employees, the proposal
 nevertheless does not cover all matters required by 5 U.S.C. 4302 and 5
 CFR Part 430.  Specifically, the Agency argues that because the proposal
 does not cover such matters as appraisal of an employee on detail /1/ it
 cannot, consistent with law and regulation, replace the performance
 appraisal procedures established by the Agency so as to constitute the
 "sole procedures." Contrary to the Agency's argument, the language of
 the proposal itself specifically provides that the procedures
 established by the parties' agreement are to be interpreted in a manner
 consistent with law and regulation.  Moreover, the Union states in
 explaining the intent thereof, that the proposal is not meant to
 replace, but to supplement provisions of the Agency's procedures and the
 requirements of law and regulation.  Therefore, since the Agency does
 not allege any other grounds of nonnegotiability, nor are any apparent,
 Union Proposal 1 is within the Agency's duty to bargain under the
                             Union Proposal 2
          A critical element is a job element which is of such importance
       that if it is not performed adequately, acceptable performance of
       the job as a whole is not possible.
    The Agency contends that Union Proposal 2, which defines the term
 "critical element," is inconsistent with the definition of that term set
 forth in Office of Personnel Management regulations /2/ and is outside
 the duty to bargain.  However, in this regard, the proposal has the same
 effect as Union Proposal 3 in American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 3 FLRA 784 (1980).  In that case, the Authority held
 that the proposal at issue, which defined a critical element as "one
 which is so important that inadequate performance of it outweighs
 acceptable or better performance in other aspects of the job," was not
 inconsistent, i.e., "incompatible or irreconcilable," with the
 regulatory definition merely because it was silent with respect to
 remedial action.  Office of Personnel Management at 787.  Moreover, the
 Authority found that in all cases involving such remedial action, where
 the proposal was silent, the regulation would govern.  Similarly, with
 respect to the proposal in the instant case, the Union states that it
 "in no way precludes or prohibits . . . the actions required by the . .
 . regulation" from being taken.  Thus, for the reasons more fully set
 forth in the Office of Personnel Management decision, Union Proposal 2
 herein is not inconsistent with applicable regulation and, therefore, is
 within the Agency's duty to bargain.
                             Union Proposal 3
          Awards:  Performance appraisals will be the sole consideration
       in granting Quality Step Increases and sustained Superior
    The Agency contends that Union Proposal 3, by making performance
 appraisals the sole consideration, is inconsistent with law and
 regulation in that it thereby eliminates other statutory and regulatory
 requirements for granting quality step increases and awards for
 sustained superior performance, such as limitations as to eligibility
 /3/ and Office of Personnel Management approval of agency performance
 appraisal plans.  Contrary to the Agency, the requirement that
 performance appraisal be the sole consideration in granting such awards
 is not intended to preclude management from implementing other statutory
 and regulatory requirements.  Based on the Union's statements in the
 record, it appears that the proposal is intended to ensure, consistent
 with law and regulation, that quality step increases and awards for
 sustained superior performance will be based only on the results of
 performance appraisals obtained under a performance appraisal system
 established pursuant to 5 U.S.C. 4302.  /4/ Thus, nothing in the
 proposal would preclude management, for example, from determining that
 an employee who was qualified for a quality step increase was
 nevertheless not eligible in terms of other statutory or regulatory
 requirements.  The proposal is susceptible to this interpretation and
 the Authority specifically adopts it in reaching its conclusion.
 Therefore, based on this interpretation the proposal is not inconsistent
 with law and regulation and is within the duty to bargain.
                             Union Proposal 4
          At the beginning of the appraisal period, a copy of the
       appraisal form shall be given to each employee.  The form shall
       show the critical and non-critical elements and the corresponding
       performance standards.  An explanation will also be given of the
       three summary ratings and how they will be applied.  A written
       notice will be provided each employee stating that within-grade
       increase will be granted for an overall average appraisal rating
       of at least fully satisfactory except that a rating of
       unsatisfactory in critical element may be cause for denial of a
       within-grade increase.
    The Agency contends that Union Proposal 4, insofar as it provides
 that a rating of unsatisfactory in a critical element may be cause for
 denial of a within-grade pay increase, is inconsistent with an
 applicable regulation, 5 CFR 430.202(e), /5/ which requires the denial
 of such an increase when an employee's performance is below the minimum
 standard for a critical element.  In response, to the Union amended its
 proposal, in compliance with the regulation, to provide that an
 unsatisfactory rating would require the denial of a within-grade
 increase.  /6/ Thus, by the amendment of its proposal, the Union has, in
 effect, eliminated the Agency's objections and the parties' dispute as
 to the negotiability of the proposal has been rendered moot.  For this
 reason, the Authority need not consider the proposal further herein.
 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)
 (Union Proposal 4).
    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, 2, and 3.  /7/ IT IS FURTHER ORDERED that the Union's petition for
 review as to Union Proposal 4 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., May 8, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ 5 CFR 430.203(h).
    /2/ 5 CFR 430.202(e) provides as follows:
          Sec. 430.202.  Definitions.
                                .  .  .  .
          (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.
    /3/ For example, 5 U.S.C. 5336 and implementing regulations contained
 in 5 CFR 531.506(a), provide that a quality step increase may not be
 granted to an employee who has received a quality step increase within
 the preceding 52 consecutive calendar weeks.  See also Federal Personnel
 Manual, chap. 451, subchap. 6-3.b.; chap. 531, subchap. 4-12.
    /4/ Union Brief at 5-6.  In this regard, 5 U.S.C. 4302(b)(4) requires
 that performance appraisal systems established thereunder provide for
 "recognizing and rewarding employees whose performance so warrants."
 Further, regulations implementing this statutory provision require that
 performance appraisals under such systems be used as a basis, among
 others, for decisions to grant awards and pay increases, including
 quality step increases.  5 CFR 430.203(i)(2).  Conversely, regulations
 implementing the statutory provisions authorizing awards for superior
 accomplishment, 5 U.S.C. 4503, require use of the agency's performance
 appraisal system as a basis for granting awards for sustained superior
 performance of assigned duties, 5 CFR 451.206(h);  and regulations
 implementing statutory provisions authorizing the granting of quality
 step increases, 5 U.S.C. 5336, require that the decision to grant such a
 pay increase be supported by an employee's most recent performance
 appraisal, 5 CFR 531.505.
    /5/ See note 2, supra.
    /6/ Union Brief at 6.
    /7/ In finding these proposals to be within the duty to bargain, the
 Authority makes no judgment as to their merits.