42:0687(46)NG - - NAGE Local R4-6 and Army, Fort Eustis, Virginia - - 1991 FLRAdec NG - - v42 p687



[ v42 p687 ]
42:0687(46)NG
The decision of the Authority follows:


42 FLRA No. 46

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-6

(Union)

and

DEPARTMENT OF THE ARMY

FORT EUSTIS, VIRGINIA

(Agency)

0-NG-1842

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based on 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 4 proposals relating to the Agency's Caregiving Personnel Pay Program.(1)

Proposal 1 provides that conversion of current child care employees to positions in the new child care grade system will be based solely on performance and experience. Proposal 6 provides that employees will be converted to the new child care grade system without competition. We find that Proposals 1 and 6 are consistent with the Military Child Care Act of 1989, 10 U.S.C. § 113 note (Supp. I 1989) (MCCA). We also find that Proposal 6 does not directly interfere with management's right under section 7106(b)(1) of the Statute to determine the numbers, types and grades of employees or positions assigned to an organizational subdivision, work project, or tour of duty. However, we conclude that there is insufficient evidence in the record for us to determine whether Proposals 1 and 6 interfere with the Agency's right to make selections for appointment under section 7106(a)(2)(C) of the Statute. Therefore, we will dismiss the petition for review as to Proposals 1 and 6.

Proposal 8 would provide a child development center employee a fifty percent discount on the fee normally charged the employee for child care services when the services are provided by the center during the employee's duty hours. We find that Proposal 8 is nonnegotiable.

Proposal 13 requires specific step increases within a pay band based on an employee's annual performance rating. We find that Proposal 13 is consistent with the MCCA and does not interfere with the Agency's right to determine its budget.

II. Background

The Union submitted the proposals in this case during negotiations concerning the Agency's implementation of its Caregiving Personnel Pay Program. The program was adopted by the Agency to meet the requirements of the Military Child Care Act of 1989. The MCCA "established certain criteria within which the Department of Defense must operate its child care centers. The [MCCA] addresses among other things, child care center funding, employee training, [parent] user fees, employee pay and child abuse prevention and safety." Agency Statement at 1. See also H.R. Conf. Rep. No. 331, 101st Cong., 1st Sess. 662-65, reprinted in 1989 U.S. Code Cong. & Admin. News 1119-22.

The child care (CC) grade structure referred to in the proposals "is a specific pay schedule for [nonappropriated fund (NAF)] child care center employees who are directly involved in providing child care services." Id. at 2. "The CC system is designed to offer an acceptable beginning 'floor' of wages, the potential for interim pay increase through the use of pay banding, and a system closely paralleling that of the [General Schedule (GS)] system for equity among staff." Department of the Army Implementing Guidance, Caregiving Personnel Program at 7 (Attachment 1 to Petition for Review) (Implementing Guidance).

III.      Proposal 1

Conversion to the CC grade structure will be determined solely on current satisfactory performance and experience.

Proposal 6

Employees who are currently performing the duties of like positions in the CC grade structure will be converted into those CC grade positions without competition.

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 1 and 6 are inconsistent with the MCCA because they would allow employees to be converted to CC grade positions "based on experience rather than training." Agency's Statement at 2 (emphasis in original). The Agency states that section 1503(a)(1) of the MCCA requires the Secretary of Defense to implement a training program for child care employees. The Agency also states that section 1503(a)(2) of the MCCA provides that satisfactory completion of training shall be a condition of employment of any person employed as a child care employee and section 1503(a)(3) specifies the training which, at a minimum, must be completed before an employee is considered qualified for a CC position. The Agency argues that "by prohibiting the activity from using training as a determining factor in the conversion of employees to the CC structure," Proposals 1 and 6 are inconsistent with the MCCA and, therefore, are nonnegotiable. Id.

The Agency also contends that Proposals 1 and 6 interfere with management's right to assign work under section 7106(a)(2)(B) and management's right to establish selective factors and to select employees from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency asserts that management's right to assign work includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments in determining whether a particular employee meets those qualifications. The Agency states that Proposals 1 and 6 would require the Agency to move employees into CC positions without regard to certain qualifying factors (specific training courses) that management has established. The Agency maintains that the proposals would prohibit management from using an employee's education background in determining whether he or she was qualified for a child care position. The Agency argues that Proposals 1 and 6 directly interfere with management's right to determine the qualifications needed by the employees to perform certain duties and, thus, interfere with management's right to assign work.

The Agency argues that the proposals interfere with management's right to select employees because they "prohibit management from identifying selective factors, i.e., specific training courses, to be used in determining the qualifications of employees for positions as child care providers." Id. at 3. The Agency asserts that the proposals also interfere with management's right to select because they require the Agency to select all employees at the activity who are performing similar functions to fill the CC grade positions at the child care center. The Agency states that "[s]ection 7106(a)(2)(C) provides management the right to select from any appropriate source, not just from current installation employees, as these proposals require." Id. (citation omitted).

Finally, the Agency contends that Proposal 6 interferes with management's right under section 7106(b)(1) to determine the numbers of employees or positions assigned to a particular work project. According to the Agency, the proposal "requires all employees performing duties similar to positions in the CC grade structure to be converted to CC positions" and, thereby, "forces management to move employees into the child care centers regardless of management's staffing requirements." Id. at 4 (emphasis in original).

2. Union

The Union states that Proposals 1 and 6 are intended to ensure that current child care employees are converted to the CC grade "based solely on satisfactory performance and experience rather than training." Petition for Review (Petition) at 1 and 2. The Union states that the MCCA "allows the Agency to convert current employees to the CC grade by [waiving] the training requirements for six (6) months." Id. at 2. The Union asserts, therefore, that Proposals 1 and 6 are consistent with the MCCA. The Union also contends that Proposals 1 and 6 are consistent with section 7106 of the Statute. The Union argues that the proposals do not prohibit management from identifying selective factors. The Union asserts that the MCCA allows employees currently performing the duties of like positions in the CC grade structure to convert into the CC grade positions without competition.

B. Analysis and Conclusions

1. Military Child Care Act of 1989

We find that Proposals 1 and 6 are consistent with the requirements of the MCCA concerning training for child care employees.

The Union explains that Proposals 1 and 6 provide that the Agency shall not base its decision to convert a current child care employee to a CC grade position on whether the employee has received training in a specific area. Rather, under Proposals 1 and 6, the Agency's decision to convert a current child care employee to a CC grade position shall be based "solely on current satisfactory performance and experience."

Section 1503(a)(1) of the MCCA requires the Secretary of Defense to establish and prescribe regulations to implement a training program for child care employees. As a condition of employment, each child care employee must satisfactorily complete the training program established under the regulations. Section 1503(a)(3) of the MCCA establishes the specific areas of training which, at a minimum, the training program shall cover. Section 1503(a)(2) of the MCCA also provides that, as to new hires, the employee must "complete the training program not later than six months after the date on which the employee is employed as a child care employee." As to a child care employee hired before the date on which the training program is established, the statute provides that the Agency "shall require that the employee complete the program not later than six months after [the date on which the training program is established]." Section 1503(a)(2) of the MCCA.

The MCCA does not require that employees be trained in specific areas before they may be converted to a CC grade position. Under the MCCA, the Agency may allow current employees up to 6 months to complete the training required in section 1503 of the MCCA. Thus, the Agency has discretion under the MCCA to convert current child care employees to a CC grade position without regard to whether the employees have completed the training requirements in section 1503(a)(3). We find that by providing that the Agency shall not base its decision to convert a current child care employee to a CC grade position on whether the employee has received training in a specific area, Proposals 1 and 6 do not conflict with the training requirements in section 1503 of the MCCA. We conclude that the Agency has failed to establish that Proposals 1 and 6 are inconsistent with section 1503 of the MCCA.

2. Management's Right to Determine the Numbers, Types, and Grades of Employees or Positions Assigned to an Organizational Subdivision, Work Project, or Tour of Duty

We find that the Agency has not demonstrated that Proposal 6 interferes with the Agency's right to determine the numbers of employees or positions assigned to a particular work project under section 7106(b)(1) of the Statute. Contrary to the Agency's position, Proposal 6, by its terms, does not affect the number of positions that the Agency will establish in the CC system. Rather, the proposal addresses how current employees will be converted to the positions in the CC system which the Agency has established. Nothing in the record suggests that the Union intends Proposal 6 to require the Agency to have the same number and the same types of positions in the new CC system as it had in the previous system. Therefore, we find that there is no basis to conclude that Proposal 6 directly interferes with the Agency's right to determine the numbers, types and grades of employees or positions assigned to a work project under section 7106(b)(1) of the Statute.

3. Management's Right to Select from Among Properly Ranked and Certified Candidates or from Any Other Appropriate Source

We find that there is insufficient evidence in the record for the Authority to determine whether Proposals 1 and 6 interfere with the Agency's right to select among candidates for appointment to a position or from any other appropriate source under section 7106(a)(2)(C) of the Statute.

With respect to filling positions under section 7106(a)(2)(C), management has the right to make the actual substantive determination in the selection and appointment process. Veterans Administration Medical and Regional Office Center of Wilmington, Delaware and Laborers' International Union of North America, AFL-CIO, Federal Local No. 1154, 32 FLRA 701 (1988). Moreover, section 7106(a)(2)(C) provides that management has the right when filling positions to make a selection from a group of properly ranked and certified candidates or from any other appropriate source. See Local R-1-185, National Association of Government Employees and the Adjutant General of the State of Connecticut, 25 FLRA 509 (1987) (Adjutant General) and cases cited in that decision. See also American Federation of Government Employees, Local 12 and U.S. Department of Labor, 38 FLRA 1573, 1579 (1991). Management's right to select for appointment to a position under section 7106(a)(2)(C) also includes the discretion to determine the qualifications needed to perform the work of a position. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 31 (1990).

Both Proposal 1 and Proposal 6 establish conditions governing the conversion process from the current classification system to the Child Care system. To determine how the proposals affect the exercise of management's right under section 7106(a)(2)(C) of the Statute, it is necessary to consider the conversion process referenced in the proposals.

The MCCA does not specifically require the conversion of child care employees to a new pay and grading system. That statute requires the Department of Defense to, among other things: (1) establish a training program for child care employees (section 1503(a) and (b)); (2) conduct a program to increase the compensation of child care employees (section 1503(c)); and (3) make available for child care programs of the Department of Defense additional competitive service positions (section 1503(f)). The statute mandates that the Secretary of Defense prescribe regulations to implement the requirements of the MCCA.

To resolve the negotiability dispute concerning Proposals 1 and 6, it is necessary for the Authority to examine the regulations required by the MCCA to determine: (1) whether those regulations provide for the conversion of child care workers to another pay and grading system; (2) if so, what a conversion under those regulations entails; and (3) whether, and in what manner, the conversion process implicates the exercise of management's right to select candidates under section 7106(a)(2)(C) of the Statute.

Neither party in this case has provided a copy of the regulations required under the MCCA, nor have they cited to any provision of those regulations. Although the Agency's Implementing Guidance provides for the conversion of child care employees, it does not appear that the provisions of the Implementing Guidance are the regulations required by the MCCA. There is no evidence that the Implementing Guidance was issued by the Secretary of Defense or that it is applicable outside of the Department of the Army. Further, we cannot determine from the record whether the Implementing Guidance is mandatory Agency-wide policy or is merely intended as non-binding guidance for Department of the Army managers. Because the parties have not provided a copy of or a citation to the regulations required by the MCCA or otherwise explained the conversion process referred to in the proposals, we are unable to determine what the conversion referenced in the proposal entails and whether, or the extent to which, the conversion process involves the exercise of management's right to select.

From our examination of the record before us, we have determined that the negotiability of Proposals 1 and 6 depends on the extent to which management is required to exercise its discretion under section 7106(a)(2)(C) in the initial conversion of child care employees to the CC grade system. However, the parties have not explained how employees are converted to the CC grade system. There is no information in the record before us as to whether the Agency has discretion under applicable regulations to determine: (1) whether employees will be converted to the new system; (2) the positions to which employees will be assigned once they are converted to the CC grading system; and (3) the qualifications required for assignment to positions in the CC system. We are uncertain, for example, whether the conversion process simply entails a relabeling of existing positions with new position designations under the CC system--with no accompanying change in duties or qualifications--or whether the process involves the creation of wholly new positions in that system with a resulting change in duties and qualifications.

Without additional information as to the nature of the conversion process, we cannot assess the impact of the proposals on the exercise of management's right to select. We conclude, therefore, that the parties have not provided a record on which we can assess the negotiability of the proposal under section 7106(a)(2)(C) of the Statute. Consequently, we will dismiss the petition for review as to Proposals 1 and 6.

4. Conclusions

We conclude that Proposals 1 and 6 are not inconsistent with section 1503 of the MCCA. We also conclude that the Agency has failed to establish that Proposal 6 is nonnegotiable on the basis that it directly interferes with the Agency's right to determine the numbers of employees or positions assigned to a particular work project under section 7106(b)(1). Finally, we conclude that the parties have not sustained their burden of creating a record that is sufficient for the Authority to determine whether Proposals 1 and 6 interfere with the Agency's right, in filling vacant positions, to select from among properly ranked and certified candidates for appointment or from any other appropriate source under section 7106(a)(2)(C) of the Statute. Therefore, we must dismiss the petition for review as to Proposals 1 and 6. See American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1107 (1990), decision on remand as to other matters 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991).

IV.     Proposal 8

Employees in the Child Development Center will be given a fifty percent (50%) discount for their children's care in the CDC.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 8 violates the express language of section 1504 of the MCCA. The Agency states that section 1504 provides that fees for attendance at the child care centers are to be based solely on family income. The Agency argues that "[a]n automatic reduction in fees based on where a person is employed does not take into consideration the factor Congress has directed to be considered--family income." Agency's Response at 6. The Agency states that the only exception to the family income consideration for determining fees is in section 1506 of the MCCA, which allows lower fees if the parents participate in the parent participation program. The Agency also contends that Proposal 8 violates the requirement in section 1504 of the MCCA that the regulations establishing fees to be charged parents be uniform for the military departments. The Agency argues that if it were to establish a reduced fee for employees at the Agency, the fee policy would not be uniform throughout the military departments and, therefore, would violate section 1504 of the MCCA.

2. Union

The Union states that the intent of Proposal 8 is to provide a fifty percent discount for employees "as long as the employee is in a duty status. With increase in cost of living, and rising health care costs, it makes child care practically unaffordable for NAF employees." Petition at 2. The Union contends that the proposal concerns the conditions of employment of unit employees and is consistent with law.

B. Analysis and Conclusions

Under Proposal 8, the fee normally charged for child care services at a child development center would be discounted fifty percent for employees who are in a duty status when the services are provided. We find that Proposal 8 is inconsistent with the MCCA.

In National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 145 (1991) (Langley Air Force Base, Virginia), we found that the MCCA applied to child care centers that "provide services to members of the Armed Forces." The proposal in that case required the agency to provide free child care services to employees in a duty status. We found that, due to the uniformity requirement of the MCCA, the proposal would have the effect of requiring free child care services to all parents who are in a duty status, including parents who are members of the Armed Forces. We concluded, therefore, that to the extent that the proposal at issue in that case was intended to require free child care services for unit employees in a duty status at centers where child care was provided for members of the Armed Forces, the proposal was inconsistent with the requirement of the MCCA that fees for child care services for children of members of the Armed Forces be based on family income. Langley Air Force Base at 146.

In particular, we interpreted sections 1504 and 1506 of the MCCA to provide that:

[T]he Secretary of Defense must establish fees to be charged parents for attendance at military child development centers and shall require, for children who regularly attend the centers, that fees be based on family income. The regulations must also be uniform for all military departments. The only exception to the requirement that fees be based on family income for children who regularly attend the centers is that fees may be lowered for children whose parents participate in a parent participation program.

Id. at 146.

Under Proposal 8, family income is no longer the sole criterion to be used to determine the fees to be charged parents for child care services at military child development centers. Rather, under the proposal, the Agency must consider employment status and duty status when it determines the fees to be charged parents who are employees of the child development centers. As we found in Langley Air Force Base, Virginia, section 1504 requires a uniform parent fee schedule that is based solely on family income. Because Proposal 8 requires that the fees charged parents who are unit employees be based on criteria other than family income, to the extent that the proposal would affect the fee structure for members of the Armed Forces, it is inconsistent with the MCCA.

As we indicated in Langley Air Force Base, Virginia, the requirement for a uniform system under the MCCA means that the terms applied to civilian employees must be applied to members of the Armed Forces. In that case, we found that a proposal requiring free child care for unit employees who were in a duty status would, consistent with the requirement for uniformity, necessitate free child care for all children whose parents were in a duty status, including children of members of the Armed Forces, contrary to the requirement of the MCCA for fees based on family income. Id. at 146. Similarly, in this case, providing discounted fees for employees of the Child Development Center who are in a duty status would, consistent with the requirement of uniformity, necessitate discounted fees for all children whose parents are in a duty status, including children of members of the Armed Forces, contrary to the requirement of the MCCA that fees for members of the Armed Forces be based on family income.

Consequently, because the proposal would require discounted child care fees for members of the Armed Forces, contrary to the requirement of the MCCA for a fee structure for members of the Armed Forces based on family income, we find, consistent with Langley Air Force Base, Virginia, that, to the extent that Proposal 8 applies to child care centers providing child care services for members of the Armed Forces, the proposal is inconsistent with the MCCA. We also note in this connection that the proposal is not limited to parents who participate in a parent participation program. Thus, it is not covered by the exception to the fee requirements of section 1504 that is described in section 1506 of the MCCA. Accordingly, we conclude that Proposal 8 is nonnegotiable under section 7117(a)(1) of the Statute.

V.      Proposal 13

A satisfactory annual performance appraisal will result in a one step increase in the pay band. An excellent rating will result in a two step increase in the pay band. An outstanding rating will result in a three step increase in the pay band.

A. Positions of the Parties

1. Agency

The Agency contends that there is insufficient evidence in the record for the Authority to determine the negotiability of Proposal 13. The Agency states that "[t]he CC pay schedule does not have step increases. Rather, pay bands are used which cover a range of salary at particular grades without any natural breaks that could be considered steps. The increments in the pay bands are in one cent intervals making step determinations impossible." Agency's Response at 7. The Agency argues that "[a]s there are no steps in the CC pay schedule to allow for implementation of the proposal, there is an insufficient record upon which the Authority can render a decision." Id.

The Agency also contends that Proposal 13 is contrary to section 1503(c)(3) of the MCCA. The Agency states that section 1503(c)(3) "requires the Secretary of Defense to conduct a test program on the compensation of child care employees who are directly involved in providing child care and are paid from nonappropriated funds. (These are the employees in the CC pay schedule.)" Id. at 8. The Agency argues that negotiating over separate pay scales for the various activities having child care development centers would interfere with the test program on the compensation required under section 1503(c)(3). The Agency contends that to the extent that Proposal 13 includes the general schedule employees and prevailing rate employees, the proposal is inconsistent with law, and thus nonnegotiable, because the step increases for those employees are provided by statute.

Finally, the Agency contends that Proposal 13 may interfere with the Agency's right to determine its budget but "the [U]nion has provided insufficient information for the [A]gency to make an argument before the Authority." Id. at 9.

2. Union

The Union states that Proposal 13 is intended "to provide a range within the pay band that an employee's salary is adjusted based on an annual salary." Petition at 3. According to the Union, the pay band system established by the Agency has a range in which an employee's salary may be adjusted. The Union states that the proposal "would ensure an increase in salary as long as an employee maintains a minimum level of performance throughout the performance period." Id.

The Union contends that "the [A]gency's assertion that the CC pay schedule does not provide for step increases . . . is totally misleading and erroneous. [The Implementing Guidance] provides various steps (from $5.70 per hour to $10.16 per hour) within the pay band that an employee's salary may be adjusted at the complete discretion of the [A]gency." Union's Response at 3. See also Implementing Guidance at 13 (Attachment 1 to Petition for Review). The Union states that Proposal 13 concerns the wages and fringe benefits of employees. The Union argues that because the wages and benefits of bargaining unit employees are not determined by statute, Proposal 13 concerns the conditions of employment of employees and, therefore, is negotiable.

B. Analysis and Conclusions

Contrary to the Agency's claim, the record is sufficient for the Authority to make a negotiability determination. The pay system established under the Implementing Guidance has two pay bands. Each pay band contains 10 incremental increases in pay within the pay band which are designated in the Implementing Guidance as "steps." See Implementing Guidance at 13. Thus, because the pay system for child care employees contains pay increases in steps, the requirement for certain step increases in Proposal 13 is sufficiently clear that we will be able to assess the negotiability of the proposal.

We also reject the Agency's contention that Proposal 13 cannot be implemented consistent with the CC pay schedule because the CC pay schedule does not have step increases. As we have noted above, each of the prescribed pay bands contains 10 incremental steps. Consequently, the requirement of the proposal for step increases can be implemented consistent with the pay system for CC employees established by the Agency in its Implementing Guidance.

We find that the Agency has failed to establish that Proposal 13 is contrary to section 1503(c)(3) of the MCCA