[ v14 p427 ]
The decision of the Authority follows:
14 FLRA No. 67 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3477 Union and CONSUMER PRODUCT SAFETY COMMISSION Agency Case No. O-NG-587 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 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 Statute. 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 Performance. 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.