[ v17 p832 ]
The decision of the Authority follows:
17 FLRA No. 112 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1980, AFL-CIO Union and U.S. DEPARTMENT OF AGRICULTURE, FARMERS HOME ADMINISTRATION Agency Case No. 0-NG-724 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 presents issues concerning the negotiability of the following Union proposal: When undergoing a major reduction-in-force, the State Director will request the National Office of Farmers Home Administration to request early retirement authorization from the Office of Personnel Management, in accordance with Public Law 95-454, Section 306. Performance appraisals of employees in the reduction-in-force competitive area will have their appraisals frozen when a decision is made to implement a reduction-in-force. (Only the underlined portion of the proposal is in dispute.) Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The proposal, on its face, would require the Agency to freeze bargaining unit employees' performance appraisals at the time a decision is made to implement a reduction-in-force (RIF). The Agency has refused to bargain over the disputed proposal contending that the proposal is inconsistent with the Federal Personnel Manual (FPM), chapter 351, subchapter 2-6a(1), a Government-wide regulation, and, thus, is outside the duty to bargain. /1/ The Union in essence argues that the proposal is not inconsistent with the FPM since the proposal is not incompatible or irreconcilable with that regulation, but, instead, is negotiable as a procedure management will observe in the exercise of its right to implement a RIF. In agreement with the Agency, the Authority finds that the disputed proposal herein is inconsistent with chapter 351, subchapter 2-6a(1) of the FPM and, thus, is outside the duty to bargain under section 7117(a)(1) of the Statute. /2/ The cited provision of the FPM provides that an employee's current official performance appraisal on the date of issuance of a specific reduction-in-force notice is the appraisal that determines his or her retention standing in the event that a RIF occurs. The Union's proposal, however, would require the Agency, in effect, to consider for retention purposes the official performance appraisal of an employee on record on the date on which the decision is made to institute a RIF. It does not appear that in all circumstances, especially where a significant number of employees are involved, an agency's decision to implement a RIF and specific notice to employees could be accomplished simultaneously, as argued by the Union. /3/ Thus, since a decision to implement a RIF would not necessarily coincide with specific notice to an individual employee selected for release from his or her competitive level, the Union's proposal would require the Agency to freeze performance appraisals at a time different from that which is required by the FPM. For this reason, the proposal is inconsistent with the FPM, contrary to the Union's claim. The Authority further concludes that the FPM provision at issue herein is a Government-wide regulation. The Office of Personnel Management (OPM) is statutorily empowered to prescribe regulations for the release of employees in a reduction-in-force which give due effect to length of service and performance ratings (5 USC 3502). /4/ The requirements as to the date performance appraisals are frozen as set forth in the FPM constitute OPM's determination of the policies necessary to give due effect to performance ratings. Moreover, section 351.204 of part 351 of title 5, Code of Federal Regulations (CFR), requires each agency to follow and apply the regulations prescribed therein when the agency determines that a RIF is necessary. In addition, section 351.205 further authorizes the Office of Personnel Management to establish "further guidance and instructions for the planning, preparation, conduct, and review of reduction-in-force through the Federal Personnel Manual system." /5/ The requirements for determination of the effective date of employees' performance appraisals, as mentioned above, are set forth in chapter 351 of the FPM and are applicable to Federal civilian employees in the competitive service within the executive branch of the Government. As such, the applicable FPM provision, is generally applicable to the Federal civilian work force and is "Government-wide" within the meaning of section 7117(a)(1) of the Statute. See American Federation of Government Employees, AFL-CIO and Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 11 FLRA 238 (1983) (Union Proposal 6); National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151 (1982); National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). Insofar as the Union's proposal is inconsistent with the applicable provision of the FPM, it is outside the duty to bargain under section 7117(a)(1) of the Statute. /6/ As to the Union's assertion that the proposal is negotiable because it is a procedure which management will observe in the exercise of its right to implement a RIF, it cannot be sustained under the circumstances. Under the Statute, the duty of an agency to negotiate with a union extends to the conditions of employment affecting bargaining unit employees except as provided otherwise by Federal law and Government-wide rule or regulations. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980). Therefore, a proposal is outside the duty to bargain to the extent that it is inconsistent with any Federal law or Government-wide rule or regulation, irrespective of whether the proposal herein is inconsistent with a Government-wide regulation, the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 8, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Chapter 351, subchapter 2-6a(1) of the FPM states as follows: 2.6. EFFECTIVE DATE OF PERFORMANCE APPRAISAL a. Appraisals frozen on date of notice. (1) Except for employees covered under 2-6a (3) below, an employee's current official performance appraisal on the date of issuance of a specific reduction-in-force notice is the appraisal that determines his or her retention standing under paragraph 2-9 of this chapter. Performance appraisals that were due on or before the date of issuance of notice but were not officially approved and put on record until after the date of issuance of notice do not affect determination of the employee's retention standing. /2/ Section 7117(a)(1) of the Statute provides as follows: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph 2 of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulations, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. /3/ See provisions governing implementation of a RIF contained in 5 CFR Part 351 and FPM Chapter 351. /4/ The pertinent parts of 5 USC 3502 provide as follows: Sec. 3502. Order of retention (a) The Office of Personnel Management shall prescribe regulations for the release of competing employees in a reduction in force which give due effect to-- (1) tenure of employment; (2) military preference; subject to section 3501(a)(3) of this title; (3) length of service; and (4) efficiency or performance ratings. . . . . (c) An employee who is entitled to retention preference and whose performance has not been rated unacceptable under a performance appraisal system implemented under chapter 43 of this title is entitled to be retained in preference to other competing employees. /5/ Sections 351.204 and 351.205 of title 5 of the Code of Federal Regulations states as follows: Sec. 351.204 Responsibility of agency. Each agency covered by this part is responsible for following and applying the regulations in this part when the agency determines that a reduction in force is necessary. Sec. 351.205 Authority of OPM The Office of Personnel Management may establish further guidance and instructions for the planning, preparation, conduct, and review of reductions in force through the Federal Personnel Manual system. OPM may examine an agency's preparations for reduction in force at any stage. When OPM finds that an agency's preparations are contrary to the express provisions or to the spirit and intent of these regulations or that they would result in violation of employee rights or equities, OPM may require appropriate corrective action. /6/ Since the Authority concludes that the disputed proposal is outside the duty to bargain under section 7116(a)(1), it is unnecessary to consider the Agency's additional contention concerning the nonnegotiability of the proposal.