[ v16 p992 ]
The decision of the Authority follows:
16 FLRA No. 130 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-17 Union and VETERANS ADMINISTRATION MEDICAL CENTER, HAMPTON, VIRGINIA Agency Case No. 0-NG-856 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 an issue concerning the negotiability of the following Union proposal. Union Proposal Cash awards will be granted on a fair and equitable basis. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. While the proposal, on its fact, appears unobjectionable, the Union's explanation of its meaning and intent raises a negotiability question. Specifically, in response to an Authority request for a statement of the meaning of its proposal, the Union stated: "(T)he key to the meaning and intent of the language, "cash awards will be granted on a fair and equitable basis," is that all employees in a higher performance category will receive a cash award, a cash award based on a percentage of basic per annum salary greater than the highest percentage of basic per annum salary paid to an employee in a lower performance category. It is well established that the right to determine standards which employees must meet in order to be rewarded for superior performance is subsumed in the right to direct employees and to assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute. See, e.g., National Treasury Employees Union and Internal Revenue Service, 14 FLRA No. 77 (1984) (Proposals 1 and 2), appeal docketed sub nom. NTEU v. FLRA, No. 84-1292 (D.C. Cir. July 9, 1984). Thus, in American Federation of Government Employees, AFL-CIO, Locals 112, 3269, 3383 and 3831 and Department of Health and Human Services, Food and Drug Administration, Region V, 15 FLRA No. 171 (1984), the Authority held that Union Proposal 2, requiring, inter alia8 that "(a)n employee who achieves an Outstanding overall performance appraisal . . . shall be granted a Quality Step Increase," was nonnegotiable because it interfered with the management rights to direct employees and to assign work. In like manner, the instant proposal, as described by the Union, would mandate, should management elect to exercise its reserved right to reward an employee for performance accomplishments, that all other employees with higher levels of performance be accorded a higher degree of recognition. Thus the proposal, in effect, prescribes both levels of performance to be rewarded and in certain respects the monetary amounts those levels will receive. Hence, based on Internal Revenue Service and Food and Drug Administration, Region V, and the reasons and cases cited therein, the disputed proposal is outside the Agency's duty to bargain. Furthermore, it is also well established that management must exercise its right to reward performance within the boundaries of applicable laws and Government-wide regulations. American Federation of Government Employees, AFL-CIO, Local 3477 and Consumer Product Safety Commission, 14 FLRA No. 67 (1984) (Union Proposal 1 contains a discussion of that principle). In this regard, pursuant to 5 U.S.C. 4302(b)(4), the Office of Personnel Management (OPM) has issued regulations governing the Performance Awards Programs to be established in each Executive agency. /1/ With respect to such programs, Federal Personnel Manual Chapter 451, Subchapter 4-2a(8) provides, concerning use of an agency's performance appraisal system as a basis for granting sustained superior performance awards as follows: Because other factors affect award decisions, there should be no automatic awards based solely on performance appraisals. The employee's immediate supervisor is in the best position to judge which type of recognition most appropriately recognizes the contribution and will best motivate the employee. And supervisors have considerable flexibility in matching recognition and compensation to performance, for example: promotion, granting or withholding a within-grade increase, and granting a lumpsum cash award for past superior performance or a quality increase for superior performance that is expected to continue. Further, with regard to performance awards, OPM regulations, published at 5 CFR 531.606(b) require that performance awards not be mandatory except in circumstances not wholly relevant to the instant dispute. In light of these regulatory requirements, the Authority concludes that the disputed proposal, as explained by the Union, would require management to exercise reserved rights in a manner inconsistent with Government-wide regulations. That is, if the Agency decided to reward a single employee, it would be required to reward other employees exclusively on the basis of their performance appraisals and, additionally, the proposal would mandate the bestowal of performance awards on all other employees identified in the proposal. Consequently, the proposal is also outside the Agency's obligation to bargain pursuant to section 7117(a)(1) of the Statute, since it is contrary to Government-wide regulations. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IT ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., December 20, 1984 /s/ HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman /s/ RONALD W. HAUGHTON Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ It is concluded that OPM regulations issued pursuant to its authority under 5 U.S.C. 4302(b)(4) are Government-wide regulations because, under the terms of the statutory grant, they are generally applicable to the Federal civilian workforce. See, e.g., National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colo., 9 FLRA 151 (1982).