15:0954(177)NG - AFGE Local 15 and IRS, North Atlantic Region, NY -- 1984 FLRAdec NG

 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).