[ v26 p452 ]
The decision of the Authority follows:
26 FLRA No. 55 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. 0-NG-963 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of four proposals. /1/ II. Proposal 1 As part of the annual performance evaluation process, supervisors will develop an individual development plan for each unit employee supervised. The plan will address training needs in accordance with the following priority: (a) remedial training activities; (b) training activities designed to enable unit employees they supervise to perform better in their current position or to learn the skills they will need in a subsequent position in the same career ladder. Entries in an individual development plan do constitute a commitment by the agency to promote or train. A. Positions of the Parties The Agency contends that Proposal 1 is nonnegotiable because it interferes with management's rights to assign work, to make selections for positions from among properly ranked and certified candidates or from any other appropriate source, and to fill positions. In the Union's view, the Agency's objections relate to a lack of confidence in the ability of its supervisors to formulate development plans that comply with regulations, management's needs, and training budgets. Such concerns, the Union asserts, do not make the proposal nonnegotiable, particularly when the proposal does not affect management's authority to formulate development plans. B. Analysis The dispute here centers on the last sentence of Proposal 1. That sentence uses the same wording as Proposal 2, found to be nonnegotiable in American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA 40 (1984). The proposal in Office of Personnel Management concerned individual development plans like the one described in Proposal 1 here. The Authority found that the disputed language in the Office of Personnel Management proposal required the agency to provide to each employee the training specified in his or her individual development plan. Consequently, it was held that the language of the proposal interfered with management's right to assign work. Nothing in the record of this case leads us to reach a different result. C. Conclusion Based on the reasoning and case cited in the prior Office of Personnel Management decision, Proposal 1 is inconsistent with the right to assign work under section 7106(a)(2)(B) of the Statute and, therefore, is outside the duty to bargain. /2/ III. Proposal 2 Employees will not be penalized under performance standards for situations outside their control resulting from the destruction of their work materials. A. Positions of the Parties The Agency argues that Proposal 2 is to the same effect as Proposal 1, held nonnegotiable in American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, 12 FLRA 17 (1983). Both Proposal 2 and the proposal in the cited case, it asserts, limit management's right to measure and appraise performance. Regarding the circumstances addressed by the proposal in this case, the Agency contends that "the 'destruction' of an employee's work materials would not necessarily prevent him from obtaining the same materials from another source; yet the proposal would preclude management from taking any performance-based action when such a 'destruction' of work materials occurred." /3/ The Union asserts that the purpose of Proposal 2 is to ensure that the Agency complies with the requirement in 5 U.S.C. Section 4302 that employees' performance evaluations be "accurate." B. Analysis The proposal in Social Security Administration, cited by the Agency, barred charging time lost as a result of the unavailability of telephones or other facilities against employees' productive time for performance evaluation or disciplinary purposes. The Authority noted that the proposal, in effect, would permit employees to fail or refuse with impunity to make contact with their clientele by other available means. Consequently, the proposal was held to be inconsistent with management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. In like manner, Proposal 2 in this case absolutely insulates employees from adverse evaluations in the described circumstances. As the Agency points out without contravention, at times there are alternative sources of information available to employees when their primary sources are "destroyed." Yet, under this proposal, an employee's performance evaluation could not be affected by his or her failure to turn promptly to any alternative source in furtherance of the assignment. Viewed in this light, the analogy between the proposal here and the one in Social Security Administration, as posited by the Agency, is persuasive and we find the effect on management's rights to be the same. Also implicit in Proposal 2 are the potential consequences noted regarding Proposals 1 through 3 in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA 93 (1985). That is, under the proposal here, any alternative assignment made because of the destruction of work materials arguably could be construed as a penalty. In such circumstances, the proposal would prevent the Agency from considering an employee's substandard performance of the alternative assignment in evaluating the employee's overall performance. Although the Union argues that its proposal is intended to promote accuracy in performance evaluations, we find that argument unpersuasive. The proposal in fact militates against accuracy by barring adverse assessments in the circumstances described, while not precluding favorable evaluations where warranted. Thus, the accuracy of performance ratings would be compromised because they could not reflect less than satisfactory performance in the situation covered by the proposal. C. Conclusion For the reasons stated in Social Security Administration and Office of Personnel Management, Proposal 2 is inconsistent with the Agency's rights, under section 7106(a)(2)(A) and (B) of the Statute, to direct employees and to assign work and is, consequently, outside the duty to bargain. IV. Proposal 3 A career ladder exists when there is enough work at a higher grade so that all eligible employees could be promoted. The highest grade for which there is work available for all employees is the journeyman level. As a protection against management unfairness, the journeyman level of each position at the time of its filling is noted on the vacancy announcement and on the position description. However, the subsequent coming into existence of conditions for a higher journeyman level automatically raises the level. The first party noticing the change will notify the other party and the employees immediately. (The underscored portion of the proposal is in dispute.) A. Positions of the Parties The Agency contends that the underscored language of Proposal 3 is inconsistent with its right under section 7106(a)(1) of the Statute to determine its organization. The proposal, in the Agency's view, also violates its right, under section 7106(a)(2)(C), when filling positions to make selections for appointments from among properly ranked and certified candidates for promotion or from any other appropriate source. The Agency also asserts that the proposal infringes on its right under 7106(b)(1) to determine the appropriate numbers, types and grades of employees or positions assigned to any organizational subdivision. Additionally the Agency characterizes the proposal as not concerning conditions of employment because section 7103(a)(14)(B) expressly excludes matters concerning the classification of positions from the definition of "conditions of employment." The Union asserts that the sole purpose of its proposal is to establish a procedure for modifying records of journeyman levels to reflect the "actualities." Because the proposal requires only the recordation of management decisions and actions, the Union contends that there is no interference with the Agency's statutory rights. The Union also denies that its proposal relates to the classification of positions. B. Analysis In agreement with the Agency, we find that Proposal 3 seeks to negotiate over the grade of structure within the bargaining unit. In effect, the proposal would obligate the Agency to raise the journeyman grade within the career ladder element of the bargaining unit if sufficient higher grade work is available to support promotion of all career ladder employees to the higher grade. The proposal therefore intrudes on the Agency's discretion to determine its grade structure by mandating that the grades of journeyman level be elevated when the grade level of work which might be assigned to employees in that group is of a higher grade than the existing journeyman level. In this respect, Proposal 3 is to the same effect as Proposal 4 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 17 FLRA 790 (1985). The proposal in that case provided that "(w)herever feasible, jobs will be redesigned in order to create career paths allowing employees now in deadend jobs to be promoted non-competively." That proposal was held to be inconsistent with management's right to determine its organization under section 7106(a)(1) of the Statute because it would require the Agency to change its "current organizational grade level structure(.)" Id. at 793. C. Conclusion Because Proposal 3 would require the Agency in the circumstances described, to structure its organization so that certain employees could be promoted, based on Office of Personnel Management, 17 FLRA 790, it is inconsistent with a right reserved to management by section 7106(a)(1). The proposal is therefore outside the duty to bargain. V. Proposal 4 Each employee in a career ladder will be promoted upon meeting the eligibility requirements for the higher grade, including having the ability to perform at the higher level, unless because of workload changes there is no longer work available for all eligible members of the career ladder group to be promoted simultaneously. In the latter case, competitive procedures limited to those employees will be used. (The underlined sentence is in dispute.) A. Positions of the Parties The Agency contends that the underscored language of the proposal interferes with its right, under section 7106(a)(2)(C) of the Statute, to make selections for appointments from among properly ranked and certified candidates or from any other appropriate source. In the Agency's view, the proposal also conflicts with the definition of career ladder promotion, a promotion effected without current competition, set out in Federal Personnel Manual (FPM) Chapter 335, subchapter 1-5c(1)(a). The Union characterizes its proposal as an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees adversely affected by management's determination to reduce the amount of higher level work to a point lower than can justify the existing journeyman level. B. Analysis The Office of Personnel Management (OPM) has recognized the problem addressed by Proposal 4. However, in its regulations, the method of dealing with the problem is different from the one proposed here. 5 CFR Section 335.104(b) (1986) requires: Employees with the highest summary ratings must be given first consideration for career ladder promotions when it is not possible to promote all eligible employees in the same career ladder at the same time. The cited regulation requires application of a single criterion in selecting the career ladder employees to be promoted when all eligibles cannot be promoted at the same time. The proposal, however, by referring to "competitive procedures," invokes the full range of criteria and procedures -- except, of course, for inclusion of candidates from other sources -- inherent in an authorized merit promotion plan. Because the proposal requires use of more than the single prescribed criterion, it conflicts with the applicable regulation. The question to consider next, therefore, is whether 5 CFR Section 335.104(b) is a Government-wide regulation under section 7117(a)(1) of the Statute and consequently a bar to negotiation on the proposal. 5 CFR Section 335.103 requires agencies to adopt and administer a program "designed to insure a systematic means of a selection for promotion according to merit. The program shall conform with the standards and instructions of OPM. . . . " The standards and instructions for agency merit promotion plans appear in, among other places, part 335 of the Code of Federal Regulations. Part 335 is applicable to Federal civilian employees in the competitive service within the Executive branch of Government. Hence, 5 CFR Section 335.104(b) is generally applicable to the Federal civilian work force so as to be "Government-wide" under section 7117(a)(1). C. Conclusion Proposal 4 conflicts with the requirements of 5 CFR Section 335.104(b), a Government-wide regulation under section 7117(a)(1) of the Statute. Consequently the proposal is outside the duty to bargain. VI. Order The petition for review is dismissed. Issued, Washington, D.C., March 31, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Petition for Review in this case initially sought Authority determinations on the negotiability of nine proposals. In its Statement of Position, the Agency withdrew its allegation of nonnegotiability as to one proposal. In its Reply Brief, the Union explicitly withdrew its petition with respect to three proposals. In addition it appears from the record that the Union withdrew its petition regarding one other proposal, entitled "Details, Training and Facility Articles, Details, Section 3A." In its Reply Brief, the Union neither discussed the proposal nor, in its conclusion to that document, did it request that the Agency be required to bargain over the proposal. Hence, we only examine the four proposals evidently still in dispute. (2) In view of the dispositive nature of the cited precedent, we find it unnecessary to address the additional grounds asserted by the Agency for the proposal's nonnegotiability. (3) Agency Statement of Position at 5.