[ v39 p976 ]
The decision of the Authority follows:
39 FLRA No. 83
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF AGRICULTURE
FEDERAL CROP INSURANCE CORPORATION
KANSAS CITY, MISSOURI
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two provisions that were disapproved by the Agency head under section 7114(c) of the Statute.(1)
Provision 1 establishes a criterion for evaluating an employee's ability to perform higher graded duties--the receipt of a fully successful performance rating--which is to be used in making a promotion decision concerning employees in a career ladder position. We find that the provision is consistent with applicable regulation and, therefore, that it is negotiable.
The last sentence of Provision 4 would prevent the Agency from requiring employees to use Form FCIC-465, the Agency's supplemental application form, in applying for vacant positions. We find that the provision is a negotiable procedure under section 7106(b)(2) of the Statute.
II. Provision 1
Article 13.3 - Career Promotion Procedures
Career-ladder promotions, which are the range of grades in an occupational series which represent the levels at which all employees are given experience and will be promoted as they demonstrate by a fully successful performance rating the potential to perform at the next higher level. [Sic]
A. Positions of the Parties
The Agency contends that Provision 1 is nonnegotiable because it is inconsistent with 5 C.F.R. ºº 300.602 and 335.104, which are Government-wide regulations within the meaning of section 7117(a) of the Statute. The Agency claims that Provision 1, by establishing a single criterion--a fully successful rating on a performance evaluation--for career ladder promotions, ignores the time-in-grade requirements of 5 C.F.R. º 300.602 and the performance requirements of 5 C.F.R. º 335.104. Agency's Statement of Position at 3.
The Agency argues that, by its wording, Provision 1 requires the Agency to promote an employee in a career ladder position solely on the basis of a fully satisfactory performance rating. The Agency states that, contrary to 5 C.F.R. º 300.602, under Provision 1, "an employee in a career ladder position could be promoted to the next higher grade within 120 days of original selection." Id.
The Agency also argues that Provision 1 is inconsistent with 5 C.F.R. º 335.104 because it does not incorporate the requirement that an "employee's performance at the current grade level must be at least fully successful on each critical element which is also a critical element at the next higher grade." Id. at 4. The Agency cites the Authority's decisions in American Federation of State, County and Municipal Employees and Department of Justice, 21 FLRA 1039, 1044-45 (1986) (Department of Justice); and American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1087-90 (1990) (Department of Education) to support its position.
The Union contends that Provision 1 does not directly interfere with management's right to select employees under section 7106(a)(2)(C) of the Statute and that the provision is not inconsistent with applicable Government-wide regulations. The Union states that "the intent of this provision is to expound upon [Office of Personnel Management (OPM)] Regulations which do not define the procedures for locating the determination of potential." Union's Response at 1. The Union also states that the intent of the provision is "to follow the time-in-grade requirements as outlined by the Office of Personnel Management, and agreed to in the Policy Statement of the Collective Bargaining Agreement[.]" Id. Rather, the Union claims, Provision 1 is designed "to establish a fair and equitable procedure by which bargaining unit employees are made aware of the total requirements for career-ladder promotions," which have "to date" been "undefined." Id.
According to the Union, "[t]he fully successful criteria in the new performance appraisal does not allow for less than fully successful rating in any critical element[.]" Id. at 2. Moreover, as to 5 C.F.R. º 335.104, which provides that "no employee may receive a career-ladder promotion who has a rating below 'Fully Successful' on a critical element that is also critical to performance at the next higher grade of the career ladder[,]" the Union states that the Agency's practice "is to establish new performance elements at each level of the career-ladder [sic], reflecting the differences in duties and expectation[.]" Id. Consequently, the Union concludes that the intent of the provision is not "to abrogate," but "to elaborate upon," the requirements for career-ladder promotions established by OPM. Id.
Relying on U.S. Department of Housing and Urban Development, Greensboro, North Carolina and American Federation of Government Employees, Local 3409, 33 FLRA 81 (1988) (HUD), the Union argues that Provision 1 does not interfere with management's right to select employees under section 7106(a)(2)(C) because the Agency exercises its right to select employees when it places an employee in a career ladder position. Id. at 3. The Union also contends that the provision does not violate 5 C.F.R. º 300.602 because of the effect of "the Policy Statement of the New Collective Bargaining Agreement[.]" Id.
The Union also argues that management's rights are protected because FPM Chapter 752 allows the Agency to remove an employee who receives a performance rating that is less than fully successful. Id.
B. Analysis and Conclusions
We find that Provision 1 is consistent with 5 C.F.R. ºº 300.602 and 335.104. Consequently, we conclude that the provision is negotiable.
Provision 1 concerns career ladder promotions. As worded and explained by the Union, the provision defines the criterion for determining when an employee has the "potential" for performing "at the next higher level" within the career ladder. That is, under the provision, if an employee receives a fully satisfactory performance rating, the employee has demonstrated the ability to perform at the next higher level for purposes of making a career-ladder promotion. Because the Union's explanation is consistent with the wording of the provision, we will adopt this interpretation for purposes of this decision.
Interpreted in this manner, we find that the provision concerns only that aspect of management's decision to grant a career-ladder promotion which involves some assessment of an employee's ability to perform at the next higher level of the career-ladder. See, for example, Federal Personnel Manual (FPM) Supplement 335-1, Appendix B, section B-4.b.(4) and section B-8.b.(1); Appendix A, section 5.I, as set forth in the Appendix to this decision. We note in this connection that the Agency acknowledges that the provision "does not address" other requirements of applicable Government-wide regulations. Consequently, consistent with the Union's statement that the provision is not intended to "abrogate" the regulatory requirements governing career-ladder promotions, we conclude that Provision 1 does not address the time-in-grade requirements of 5 C.F.R. º 300.602. By its terms, the provision concerns only the assessment of "promotion potential"; it does not preclude the Agency from also requiring that an employee have spent the requisite amount of time at the current grade level in order to be eligible for promotion. We conclude, therefore, that Provision 1 is consistent with 5 C.F.R. º 300.602.
Moreover, we find that Provision 1 is consistent with the performance requirements for a career-ladder promotion set forth in 5 C.F.R º 335.104. As worded, the provision defines "potential to perform at the next higher level" in terms of a "fully successful performance level." So defined, the provision is consistent with the first sentence of 5 C.F.R. º 335.104, which provides that employees may not receive career-ladder promotions unless their performance rating at their current grade level is at least fully successful. In addition, the record supports the Union's contention that, under the Agency's performance appraisal plan, no employee can receive a "fully successful" performance rating if performance in any critical element is less than fully successful. See Exhibit 4 attached to the Union's Response. We conclude, therefore, that the provision is consistent with the second sentence of 5 C.F.R. º 335.104.
We note in this connection that proposals establishing criteria for determining employees' ability to perform at the next higher grade level in a career ladder have been found by the Authority to be negotiable. See National Treasury Employees Union and NTEU Chapter 72 and Internal Revenue Service Center, 11 FLRA 271, 273-76 (1983) (proposal defining criterion for evaluating an employee's ability to perform higher-grade duties for use in making a career-ladder promotion found to be consistent with 5 U.S.C. º 4302 and not to directly interfere with management's right to select under section 7106(a)(2)(C) or management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1400 (1987), affirmed as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).
Because we find that Provision 1 concerns the criterion for assessing whether an employee has the "potential to perform at the next higher level" in a career ladder, we also conclude that the provision is distinguishable from Department of Justice and Department of Education. The proposals in those cases did not concern the establishment of criteria for determining when an employee has demonstrated "promotion potential" and were found to be nonnegotiable because they required career-ladder promotions in a manner that was inconsistent with the requirements of applicable Government-wide regulations.
For the forgoing reasons, we conclude that Provision 1 is consistent with 5 C.F.R. ºº 300.602 and 335.104 and that it is, therefore, negotiable.
III. Provision 4
Article 13.6 - Evaluation of Candidates
D. The panel members will assign each application a rating of 3 (Outstanding), 2 (Fully Successful), or 1 (Minimally Acceptable), based on their comparison of documents submitted, and the qualification and/or requirements of the Vacancy Announcement. It is understood that KSA's will not be used in this process. [Only the underscored portion is in dispute.]
A. Positions of the Parties
The Agency contends that, by preventing the Agency from using KSA's (knowledges, skills and abilities) during the selection process, the last sentence of Provision 4 is inconsistent with FPM Chapter 335 and FPM Supplement 335-1, which are Government-wide regulations within the meaning of section 7117(a). According to the Agency, "selective factors (KSA's) are an integral part of the selection process and must be used by an agency when making selections under merit promotion procedures." Id. at 8 (emphasis in original).
The Agency also contends that the last sentence of Provision 4 is nonnegotiable because it violates management's right, under section 7106(a)(2)(C), to select employees. The Agency also argues that the provision does not constitute either a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3). In support of its position, the Agency relies on the Authority's decisions in National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA 1067, 1075-76 (1987) (Food and Nutrition Service), petition for review denied sub nom. National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988); and National Federation of Federal Employees, Local 1437, and U.S. Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1063 (1990) (Picatinny Arsenal).
In explaining the intent of the last sentence of Provision 4, the Union states that "requiring the applicants to respond in narrative to KSA's, which would apparently then replace the SF-171 as the basis for rating, is discriminatory and unfair." Petition for Review at 2. The Union asserts that Provision 4 refers to "the written narrative responses now required of bargaining unit employees when applying for a position" rather than "the knowledge, skills and abilities (KSA's) as determined by [m]anagement for the position being filled." Union's Response at 4. The Union acknowledges management's right to establish the criteria--selective factors--that it intends to apply in filling positions, but points out that the term "KSA's" as used in Provision 4 refers to the "written narrative responses" contained in the Supplemental Application Form FCIC-465. See Exhibit 7 attached to the Union's Response. Id.
The Union also argues that, because the Agency establishes selective factors for a position prior to posting a vacancy announcement, the establishment of those selective factors is not a part of the evaluation process. The Union asserts that at the point when the Agency is evaluating candidates "the criteria (KSA's) set forth by [m]anagement [have] been established in accordance with 5 CFR 300.101, and [are] not part of the process mandated during the evaluation by a Merit Promotion Panel." Id. The Union further states that "[t]he Merit Promotion Panel is involved in judging the KSA's as previously established by Management against the documentation (currently FCIC-465, also known as KSA's) submitted by the employee." Id. According to the Union, the documentation submitted by the employee on the Agency's Supplemental Application Form FCIC-465 is the "KSA's" referred to in the last sentence of Provision 4.
The Union asserts that employees should have the choice concerning "the personal information they wish to submit" in response to a vacancy. Id. According to the Union, "it should be the employee's right to privacy and judgment as to how they wish to promote their own abilities." Id.
B. Analysis and Conclusions
We conclude that the last sentence of Provision 4 constitutes a negotiable procedure under section 7106(b)(2) governing the exercise of management's right to select employees under section 7106(a)(2)(C) of the Statute.
Based on the record in this case, we find that the last sentence of Provision 4 would prevent the Agency from requiring employees to submit Form FCIC-465 as a part of their application for a vacant position. The record indicates that Form FCIC-465 is only one of the forms that the Agency may require employees to submit as a part of their application. See Exhibits 7 and 10 attached to the Union's Response. Form FCIC-465 itself indicates that it is "one of the primary sources of information" that will be used in the ranking and selection process and that employees' official personnel file (OPF) may also be used as a source of information. See Exhibit 7 attached to the Union's Response. We conclude, therefore, that by precluding the Agency from requiring employees to submit Form FCIC-465, the last sentence of Provision 4 would eliminate one of the sources of information from which the Agency could evaluate candidates, but would not restrict the use of any other source.
The right to select employees includes the right to determine the qualifications needed to fill vacant positions. U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, 36 FLRA 466, 471 (1990) (Northeastern Program Service Center). Moreover, the right to determine the qualifications necessary for a position includes the right to determine the information that management needs to assess those qualifications. Id. However, the use of a particular form to apply for a position concerns the procedures management will follow, under section 7106(b)(2), in exercising its right to select an individual to fill that position. Id. at 472. A proposal precluding the use of a specific form is a negotiable procedure, therefore, unless it would "improperly limit" management's ability to obtain information necessary to assess employee qualifications. Id. at 471-72.
In Northeastern Program Service Center, we found that a proposal preventing the agency from requiring employees to use a particular application form constituted a negotiable procedure. We found that the form that the agency wanted employees to use provided information that was available from other sources, in particular, employees' OPFs. Consequently, we concluded that by precluding the agency from requiring that form, the proposal did not limit management's ability to obtain the information that it needed to evaluate employees' qualifications.
As we concluded above, Form FCIC-465 is only one of the sources, including employees' OPFs, from which management may obtain information as to employees' qualifications. There is no evidence in the record that management would be unable to obtain from some other source the information otherwise provided on Form FCIC-465. Consequently, we find that the last sentence of Provision 4 would not "improperly limit" management's ability to obtain information concerning employees' qualifications. We conclude, therefore, consistent with Northeastern Program Service Center, that the last sentence of Provision 4 constitutes a negotiable procedure, under section 7106(b)(2) of the Statute, governing management's selection of individuals to fill vacant positions.
We find that the Agency's reliance on the decisions in Food and Nutrition Service and Picatinny Arsenal is misplaced. Unlike the decisions in those case, Provision 4 does not require management to negotiate on selective factors or to place Union designees on rating and ranking panels. Moreover, in view of our conclusion that Provision 4 concerns the form that the Agency will use to obtain information about employees' knowledge, skills and abilities, and not the determination of what those KSAs are to be, we find that the last sentence of Provision 4 is consistent with FPM chapter 335 and FPM Supplement 335-1.
For the foregoing reasons, we find that the last sentence of Provision 4 is negotiable.
The Agency must rescind its disapproval of Provisions 1 and 4.(2)
FPM Supplement 335-1, Appendix B, section B-4.b. provides:
b. Evaluation procedures. The overall objectives of evaluation are to narrow the number of eligible candidates to a reasonable number from which a selection may be made and to assure that selection is made from among the best qualified candidates. It is necessary that candidates are evaluated on the basis of predetermined criteria to establish their relative merit for promotion to the position being filled. To achieve these objectives, evaluation procedures should:
(1) Be based on a thorough analysis of the job to determine the work behaviors and knowledges, skills, abilities and other characteristics to be used to measure the probability or expectancy of successful performance among candidates;
(2) Provide for an evaluation of each candidate's qualifications against the work behaviors or KSAO's required for successful performance of the target position;
(3) Result in a distinction among candidates on the basis of relative qualification level;
(4) Provide for a consideration of those qualifications which indicate a candidate's potential for future promotion, when the job being filled leads to further advancement. (See section 5.I of Appendix A).
FPM Supplement 335-1, Appendix B, section B-8.b.1 provides:
b. Evaluation of training, education and experience. (1) Purpose. An evaluation of training and experience is used to predict the probable effectiveness of future performance on the basis of the quality of relevant past performance. This evaluation should cover work behaviors or knowledges, skills, and abilities (the outcomes of training, education, and experience) rather than training, education, and experience for their own sake. Furthermore, the objective is to determine how well the candidate is prepared for higher level work. Therefore, the employee's training, education, and experience should be evaluated in terms of the work behaviors or knowledges, skills, and abilities needed for success in the job to be filled.
FPM Supplement 335-1, Appendix A, section 5.I provides:
I. Use of selection procedures for higher level jobs. If job progression structures are so established that employees will probably, within a reasonable period of time and in a majority of cases, progress to a higher level, it may be considered that the applicants are being evaluated for a job or jobs at the higher level. However, where job progression is not so nearly automatic, or the time span is such that higher level jobs or employees' potential may be expected to change in significant ways, it should be considered that applicants are being evaluated for a job at or near the entry level. A "reasonable period of time" will vary for different jobs and employment situations but will seldom be more than 5 years. Use of selection procedures to evaluate applicants for a higher level job would not be appropriate:
(1) If the majority of those remaining employed do not progress to the higher level job;
(2) If there is a reason to doubt that the higher level job will continue to require essentially similar skills during the progression period;
(3) If the selection procedures measure knowledges, skills, or abilities for advancement which would be expected to develop principally from the training or experience on the job.
Federal agencies are required to establish a merit promotion plan covering all positions to which promotion is made. FPM chapter 335, section 1-3.a.(1). Agency merit promotion plans must be consistent with FPM Supplement 335-1. Id., section 1-4, Requirement 3. Agencies may, however, except career ladder promotions from their merit promotion plans. Id., section 1-5.c.(1)(a). There is no evidence in the record that the Agency has excepted career ladder promotions from its merit promotion plan.
(If blank, the decision does not have footnotes.)
1. The Union's petition for review contained five provisions. The Agency withdrew its allegations of nonnegotiability as to Provision 2 and, with the exception of the last sentence, Provision 4. Agency's Statement of Position at 5. Further, in a letter dated November 21, 1990, the Union informed the Authority that: (1) the parties, with the assistance of the Federal Service Impasses Panel, had resolved the dispute concerning Provision 3; and (2) Provision 5 had been renegotiated by the parties and is the subject of a new negotiability dispute. Therefore, those provisions, except the last sentence of Provision 4, are not before us.
2. In finding that Provisions 1 and 4 are negotiable, we make no judgment as to their merits.