45:0429(34)NG - - NTEU and Treasury, IRS, Office of the Chief Counsel, Washington, DC - - 1992 FLRAdec NG - - v45 p429
[ v45 p429 ]
The decision of the Authority follows:
45 FLRA No. 34
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 a single proposal that would require the promotion of employees in attorney positions upon satisfaction of specified criteria. For the following reasons, we find that the proposal is nonnegotiable because it directly and excessively interferes with management's right to select under section 7106(a)(2)(C) of the Statute.
II. The Proposal
1. Employees occupying attorney positions in Grades GS-11 through GS-13 will be promoted to the next grade on the first pay period after:
a. the employee has served one year in his/her current grade; and
b. the employee is capable of satisfactorily performing at the next higher level; and
c. the Employer elects to fill an attorney position at the next higher grade.
2. For attorneys whose elements and standards are no different from those of the next higher grade level, an overall annual rating of "Fully Successful" at the current grade will satisfy the performance requirements for promotion to the next grade unless it is determined that, based on performance related criteria uniformly applied to all employees, the employee is unable to perform at the next higher grade.
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal is essentially the same as Provision 14 in National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 61-65 (1991), enforced in part, vacated and remanded in part as to other matters sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, Nos. 91-1139, 91-1316 (D.C. Cir. Apr. 14, 1991) (IRS, Chief Counsel), which involved the same parties as are involved here. The Agency notes that in IRS, Chief Counsel, the Authority found the provision nonnegotiable because it sought to establish a career ladder for excepted service attorneys that was inconsistent with a Government-wide regulation. The Agency maintains that the Authority should find the proposal nonnegotiable for the same reason.
The Agency acknowledges that the proposal has been modified. Despite the changes, which include elimination of the term career ladder, the Agency claims that the proposal is merely another attempt by the Union to establish career ladder promotions for attorneys. The Agency asserts that a career ladder is not applicable to excepted service positions but that, even if it were, the requirements set forth in Federal Personnel Manual (FPM) chapter 335, subchapter 1-5.c(1)(a) have not been met. The Agency further claims that the proposal is not rendered negotiable by the addition of section 1(c), which provides that promotions will be made only when the Agency "elects to fill" a position. According to the Agency, the Authority has held that a proposal that requires promotion upon satisfaction of specified criteria is negotiable only where the agency action would otherwise be a ministerial act. The Agency argues that this occurs only where the promotion is a genuine career ladder and not in other noncompetitive situations. The Agency asserts that the procedure established for the promotion of excepted service attorneys differs from the ministerial act implementing an agency's decision to place a competitive service employee in a career ladder.
The Agency also contends that the "elects to fill" language would require the Agency to promote a particular employee, rather than permitting the Agency to select the best qualified candidate. Consequently, the Agency argues that the proposal directly and excessively interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency argues that if it decides to fill a position it would be required to select an employee who is otherwise qualified under sections 1(a) and (b) of the proposal, regardless of whether the Agency considered that employee to be the best suited for the position. Noting the Union's contention that the language provides management with the right not to create a position or not to fill a vacancy, the Agency claims that when it decides to fill a position, the language would prevent management from selecting a candidate from any appropriate source. In addition, but without further elaboration, the Agency states that the proposal directly interferes with the right to determine its organization.
B. The Union
The Union asserts that the proposal is substantially distinguishable from Provision 14 in IRS, Chief Counsel. The Union states that the proposal does not expressly use the term career ladder and, therefore, there is no conflict with FPM chapter 335, subchapter 1-5.c(1)(a). The Union argues that because FPM chapter 335, subchapter 1-5.c(1)(a) does not apply to the advancement of excepted service employees, it neither precludes nor authorizes promotions of excepted service employees in a career ladder-type system. According to the Union, the Agency's existing advancement policy provides for promotions of attorneys in a systematic, career ladder-type procedure. The Union claims that if the Agency's arguments were valid, its own promotional system would conflict with the FPM. In addition, the Union contends that the Authority did not address the legality of career ladder-type systems for excepted service employees in IRS, Chief Counsel. Instead, the Union argues that the Authority merely determined that terms such as career ladder have an implicit meaning that cannot be disclaimed.
The Union further contends that the addition of the "elects to fill" language in section 1(c) of the proposal expressly preserves the Agency's right to fill positions and, therefore, does not interfere with the Agency's right to determine its organization under section 7106(a)(1) of the Statute. The Union explains that the "elects to fill" language allows the Agency the option of not filling a vacancy or not creating a position at the higher grade. As an example, the Union argues that the Agency may withhold a promotion from an otherwise qualified employee if it decides not to fill a position at a higher grade.
The Union also contends that the proposal does not interfere with the Agency's right to make selections from any appropriate source under section 7106(a)(2)(C) of the Statute. While acknowledging that excepted service attorneys cannot technically hold career ladder positions, as defined in FPM chapter 335, the Union asserts that the actual career advancement process for excepted service employees is identical to competitive service career ladder advancement. Specifically, the Union argues that selection into excepted service attorney positions at less than the GS-14 level is intended to prepare the selectee for the GS-14 position and that this intent is documented in the Agency's promotion plan for excepted service attorneys. The Union explains that the Agency is free to fill positions with qualified candidates from any source and at any grade level. However, the Union asserts that the selection decision applies when the Agency initially hires a candidate into an attorney position. It is at that time, according to the Union, that the Agency also has made the decision to promote the excepted service attorney noncompetitively upon the satisfaction of certain criteria. In this manner, the Union claims that the noncompetitive promotion of attorneys is simply a ministerial act and that the proposal, therefore, constitutes a negotiable procedure.
Alternatively, the Union asserts that, if the Authority determines that the proposal interferes with the Agency's right to select from any appropriate source, the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of that right. The Union claims that, under the Agency's promotion plan, employees are hired into excepted service attorney positions with the explicit understanding that they will be promoted noncompetitively to the GS-14 level upon the satisfaction of prescribed criteria. Accordingly, the Union argues that the employees are adversely affected "by any deviation . . . from either [the Agency's] express promises of advancement or from the policies described in its directives." Response at 8.
Applying the balancing test established by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Union also contends that the proposal is appropriate because the extent of the infringement on management's right to select is outweighed by the negative effect on employees of the Agency's failure to act according to its policies. The Union claims that the Agency's violation of its regulations regarding promotions will have a direct and substantial effect on employees' pay and that employees have little control over the circumstances that give rise to the withholding of their promotions. In addition, the Union argues that any interference with the Agency's right to select is minimal. The Union reiterates its view that the proposal concerns only the advancement of employees whom the Agency had decided to promote at the time it hired the employees. The Union maintains that the only difference between the proposal and the Agency's existing promotion plan is that the proposal contains a shorter time-in-grade requirement before employees can be promoted to the next higher grade.
The Union states that, consistent with the Supreme Court's ruling in Ft. Stewart Schools v. FLRA, 495 U.S. 641, 654 (1990), an agency must abide by its own regulations. The Union claims that employees benefit from the enforcement of external limitations on section 7106(a) rights and that the enforcement of such limitations does not have a negative impact on management's ability to act effectively that is excessive. According to the Union, there would be no benefit to the Agency from violating its own directives in failing to promote employees, but there would be negative effects on the employees from such a course of conduct. Specifically, the Union asserts that the employees would suffer a loss of morale and productivity and that a high turnover rate in the Agency's highly technical and specialized legal practice would significantly affect the revenue collection activities of the Federal Government.
IV. Analysis and Conclusions
As noted, we addressed a similar provision involving the same parties in IRS, Chief Counsel, 39 FLRA at 61-65. We determined that the provision was nonnegotiable because it was inconsistent with a Government-wide regulation and because it directly interfered with management's right to determine its organization. The proposal before us contains several modifications, notably, elimination of the term career ladder and the addition of section 1(c). We view the modified proposal as substantively different from the provision at issue in IRS, Chief Counsel. For this reason, we will address the negotiability of the proposal. We find, based on the language of the proposal and the Union's stated intent, that the proposal directly and excessively interferes with the Agency's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute.
The proposal states that employees occupying attorney positions in grades GS-11 to GS-13 will be promoted upon meeting time-in-grade and performance requirements when the Agency elects to fill an attorney position at the next higher grade. The Union explains that the proposal would allow the Agency to fill positions with qualified candidates from any source and at any grade level. However, the Union also explains that the Agency's right to select when filling a position occurs when the Agency first hires an employee. After that, the intent of the proposal is to automatically promote an internal candidate who has satisfied the criteria contained in the proposal. We find that the proposal would require the Agency to select an employee for promotion when that employee meets the criteria under sections 1(a) and (b) of the proposal and would prevent the Agency from filling positions from any other appropriate source. For example, if a GS-12 attorney left the Agency's employ, it would create a vacant attorney position at that grade. Under the proposal, the position could remain vacant, and the Agency would not be required to promote an otherwise qualified attorney. However, once the Agency decided to fill that GS-12 attorney position, the proposal would require the Agency to promote an available internal candidate at the GS-11 level as long as the employee meets the time-in-grade and performance criteria set forth in the proposal. In this manner, the proposal would preclude the Agency from soliciting, considering, and ultimately selecting a candidate from a source other than internal employees when filling attorney positions.
The Authority has found that provisions or proposals that require management to fill vacancies from a single appropriate source directly interfere with management's right to select from any appropriate source. See, for example, National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 35 (1991). Because the proposal dictates the use of a single source when the Agency decides to fill positions, the proposal directly interferes with management's right to make selections from any appropriate source under section 7106(a)(2)(C) of t