[ v15 p954 ]
The decision of the Authority follows:
15 FLRA No. 177 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15 Union and INTERNAL REVENUE SERVICE, NORTH ATLANTIC REGION, NEW YORK Agency Case No. O-NG-541 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 three proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Section: Management shall assure that all employees are given the opportunity to obtain the knowledges and skills that each grade level requires to qualify for the next higher grade level in the same occupational series (or closely related series) and shall not establish special qualification requirements at such higher grade levels which cannot be satisfied by skills and knowledge normally acquired within the Agency at such lower grade level. This proposal would, among other things, limit the Agency's discretion to establish qualification requirements for promotion to higher grade levels by prohibiting the establishment of requirements which cannot be satisfied by skills and knowledge normally acquired within the Agency at lower grade levels. With respect to basic eligibility for promotion, the minimum qualification requirements for a particular position are those established by the Office of Personnel Management (OPM), as supplemented by any "selective factors" added by the agency involved, i.e., knowledge, skills or abilities essential to successful performance in the job to be filled. /1/ The Authority has found that the determination of "selective factors" is an integral aspect of the process of selection. Hence, the right under section 7106(a)(2)(C) to make selections for appointments includes the discretion to make such determinations. National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA No. 92 (1983) (Union Proposals 1 and 2). Thus, as Union Proposal 1 herein would substantively restrict that discretion, contrary to the Union's argument that the proposal constitutes a negotiable procedure relating to the exercise of management rights under sections 7106(a)(2)(B) and 7106(b)(1), the proposal conflicts with the Agency's right under section 7106(a)(2)(C) of the Statute and is outside the duty to bargain. /2/ Union Proposal 2 Performance appraisal shall be one factor for evaluating employees for promotions. An overall satisfactory performance of the established job elements shall satisfy all requirements for within-grade promotions in that grade level, all requirements for non-competitive promotion to the next higher grade level; and any established qualifications requirements for competitive promotion to a position for the next higher grade level in the same occupational series (or in a closely related series). The proposal would, among other things, require the Agency to grant a within-grade increase to any employee whose overall performance is at the satisfactory level. However, under regulations issued by the Office of Personnel Management (OPM) at 5 CFR 430.202(e), /3/ performance by an employee below the minimum standard established by management in any critical element requires the denial of a within-grade salary increase. Moreover, 5 CFR 531.403 provides that, in order to attain a within-grade salary increase, absent unusual circumstances, an employee's overall performance must be at the fully acceptable level and, further, that an employee whose performance with respect to any critical element is unacceptable is not performing at an acceptable level of competence. /4/ See generally National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers, 14 FLRA No. 53 (1984). In American Federation of State, County and Municipal Employees, AFL-CIO, Local 2027 and Action, Washington, D.C., 12 FLRA No. 128 (1983) (Proposal 2), the Authority found that 5 CFR 430.202(e) constitutes a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. With respect to 5 CFR 531.403, by its terms, it applies, generally, to employees classified and paid under the General Schedule. As such, the regulation is generally applicable in most segments of the executive branch of the Federal government. /5/ Thus, this regulation 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). /6/ Therefore, since the proposal would require the Agency to grant within-grade increases to employees with overall satisfactory performance without taking into account whether the employee may have performed at an unacceptable level with respect to a critical element of his or her position, it is inconsistent with the above-cited Government-wide regulations and is outside the duty to bargain under section 7116(a)(1) of the Statute. /7/ Union Proposal 3 Section: If remedial action for unacceptable performance as defined in 5 USC 4303 is necessary, that action shall be progressively applied as follows: 1. Providing additional work experience or training. 2. Reassignment to another appropriate position at the same grade level, and in same commuting area. 3. Demotion by one grade. 4. Termination This proposal is substantively identical to Union Proposal 3 in American Federation of Government Employees, AFL-CIO, Local 1708 and Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA No. 1 (1984). The Authority found the proposal in that case improperly conditioned the exercise of specified management rights on the prior exercise of others and, thus, was inconsistent with section 7106(a)(2) of the Statute and outside the duty to bargain. Therefore, contrary to the Union's claims that "progressive discipline," as provided in the proposal, would not be prohibited by 5 U.S.C. 4303 and that the proposal would constitute a procedure under section 7106(b)(2), the instant proposal, which conditions the exercise of specified management's rights, i.e., to remove or to reduce in grade, on the prior exercise of others, i.e., to assign training or to reduce in grade, on the prior exercise of others, i.e., to assign training or to reassign employees to positions, for the reasons set forth in Military Ocean Terminal, is outside the duty to bargain under section 7106(a)(2) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review of Union Proposals 1, 2 and 3 be, and it hereby is, dismissed. /8/ Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Federal Personnel Manual (FPM), Chapter 335, section 1-2h. /2/ Since the Authority finds the proposal outside the duty to bargain under section 7106(a)(2)(C), it is unnecessary to consider Agency contentions that the proposal is nonnegotiable under other provisions of the Statute. /3/ 5 CFR 430.202(e) provides: 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. /4/ 5 CFR 531.403 provides in relevant part: Sec. 531.403 Definitions. In this subpart: "Acceptable level of competence" means a level of performance identified by an employing agency at which the 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. /5/ See 5 U.S.C. 5102. /6/ See also National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA No. 52 (1983), appeal docketed as to other matters sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 83-1355 (D.C. Cir. Apr. 4, 1983), in which OPM requirements for merit promotion plans applicable to Federal civilian employees in the competitive service within the meaning of section 7117(a)(1) of the Statute. /7/ Since the Authority finds the proposal outside the duty to bargain as inconsistent with regulation under section 7117(a)(1), it is unnecessary to consider the Agency's contentions that the proposal is inconsistent with the management right provisions of section 7106(a) of the Statute and the Union's claims that the proposal only establishes a negotiable procedure under section 7106(b)(2). /8/ The Authority here decides only the negotiability issues presented under section 7105(a)(2)(E) of the Statute. To the extent that there are factual issues and issues concerning an existing master agreement in dispute between the parties regarding the duty to bargain in the specific circumstances of this case, these issues may be raised in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA No. 55 (1984).