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26:0452(55)NG - AFGE, Local 32, and OPM -- 1987 FLRAdec NG

[ v26 p452 ]
The decision of the Authority follows:

 26 FLRA No. 55
                                            Case No. 0-NG-963
                         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
                              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
    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
                              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
                              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
                               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
    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
    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.