32:0502(73)CA - - Federal Emergency Management Agency and NFFE Local 1983 - - 1988 FLRAdec CA - - v32 p502

[ v32 p502 ]
The decision of the Authority follows:

32 FLRA No. 73





Charging Party

Case No. 3-CA-70640


I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The complaint alleges that the Federal Emergency Management Agency (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith with the National Federation of Federal Employees, Local 1983 (NFFE) over a proposal made by the NFFE in response to the Respondent's notice of its intent to issue a revised Performance Management Plan (the PMP).

The Respondent contends that NFFE's proposal is not consistent with the PMP, an Agency regulation for which a compelling need exists, and that NFFE's proposal is, therefore, nonnegotiable. We find that under section 7117(b) of the Statute, issues concerning whether a compelling need exists for an agency regulation may not be resolved in an unfair labor practice proceeding. Rather, these issues may be resolved only in a negotiability proceeding. Therefore, we dismiss the unfair labor practice complaint in this case.

II. Facts

NFFE is the exclusive representative of a unit of the Respondent's employees at the National Emergency Training Center (the Center), Emmitsburg, Maryland. On March 30, June 15, June 16 and July 29, 1987, NFFE and the Respondent engaged in negotiations over the Respondent's revision of the PMP issued March 9, 1987. One portion of the PMP provides that an Incentive Awards Committee will decide whether employees who have been rated Fully Successful or higher will receive performance awards. The PMP also provides that the Incentive Awards Committee will determine the percentage amounts available to be awarded for each level of performance.

NFFE proposed that the parties negotiate on the percentage of awards to be paid at each level of performance 20 days after the end of the rating period. On August 19, 1987, the Respondent declared that NFFE's proposal was nonnegotiable. The Respondent contended that the Center comprised only 2 of the Respondent's 15 pay pools and that there was a compelling need for consistency of incentive award percentages throughout the Agency. There were no further negotiations following the Respondent's declaration of nonnegotiability.

III. Positions of the Parties

The Respondent contends that a compelling need exists for its PMP regulations insofar as they provide consistency of incentive award percentages for all of its pay pools. The Respondent argues that its mission requires uniform rates of incentive awards so that the Respondent is viewed by both its employees and the public as a unified national workforce.

The Respondent further contends that the Authority may not render a decision on the Respondent's compelling need assertion in this unfair labor practice proceeding because the sole statutory procedure for making a compelling need determination is a negotiability proceeding under section 7117(b) of the Statute. In support, the Respondent relies on U.S. Army Engineer Center v. Federal Labor Relations Authority, 762 F.2d 409 (4th Cir. 1985) (U.S. Army Engineer Center), in which the U.S. Court of Appeals for the Fourth Circuit held that the Authority may make compelling need determinations only in negotiability proceedings under section 7117 of the Statute. The Respondent also requests that the Authority stay its decision in this case until the U.S. Supreme Court issues its decision in the then-pending appeal of the decision of the Fourth Circuit Court of Appeals in Aberdeen Proving Ground, Department of the Army, No. 86-2557 (4th Cir. Jan. 28, 1987) (unreported summary reversal) (Aberdeen Proving Ground), or in the alternative, to dismiss this case as being filed in the wrong forum.(*)

The Respondent also contends that NFFE's proposal will have an impact on nonbargaining unit employees. The PMP pay pool at the Center is composed of unit and nonunit employees. The Respondent argues that it would be required to apply any percentages negotiated with NFFE to nonbargaining unit employees. The Respondent further argues that it would be required to apply such percentages to its other pay pools to assure uniformity of treatment for all of its employees.

The General Counsel contends that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with NFFE. The General Counsel argues that the Authority held a proposal which sought to establish the rate of incentive pay for bargaining unit employees to be negotiable in its Decision and Order on Remand in National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132 (1987) (Internal Revenue Service). The General Counsel asserts that NFFE's proposal in this case is to the same effect as the proposal found negotiable in Internal Revenue Service and, therefore, the Respondent's declaration of nonnegotiability constitutes a refusal to bargain in violation of section 7116(a)(1) and (5) of the Statute.

The General Counsel further argues that the Respondent has not demonstrated a compelling need for its PMP regulations as there is no demonstrated conflict between the regulation and NFFE's proposal. NFFE's proposal calls for bilateral negotiations on the percentage of incentive awards allocated to each approved level of performance, while the PMP regulation does not specify or enumerate any percentage amount applicable to approved levels of performance. The General Counsel also argues that the Respondent has not demonstrated that its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the Respondent's mission, nor has the Respondent demonstrated that NFFE's proposal is inconsistent with the Respondent's execution of its functions in a manner which is consistent with the requirements of an effective and efficient Governme