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The decision of the Authority follows:
45 FLRA No. 52
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 case concerns the negotiability of five proposals. For the following reasons, we conclude that the proposals, which concern monetary performance awards, are nonnegotiable because they are inconsistent with Government-wide regulations.
II. Procedural Issue
The Agency contends that the proposals are not properly before us. The Agency argues that the Union is attempting to initiate mid-term bargaining and that such bargaining is prohibited.
Under part 2424 of our Rules and Regulations, we consider a petition for review of negotiability issues where the parties dispute whether a matter proposed for bargaining is inconsistent with law, rule, or regulation. Because the Agency asserts that the proposals conflict with Government-wide regulations, the conditions for review have been met. Accordingly, the Union is entitled to a negotiability determination despite the presence of additional issues concerning the obligation to bargain over the proposals. International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Army Aberdeen Proving Ground, Aberdeen, Maryland, 32 FLRA 200, 201 (1988). To the extent that there are additional issues concerning the duty to bargain over the disputed proposals, they should be resolved in other proceedings. Id. at 202.
III. Proposals 1.1 - 1.5
Bargaining unit employees whose annual performance appraisal rating reflects job performance at the Outstanding level (Level 5) shall be given a performance award of from 3 to 5% of their base annual salary within thirty days of the end of the annual rating period for which their performance was judged to have been Outstanding, re 5 CFR Section 540.109(d)(1), Regional Office Incentive Awards Program, "Performance Awards".
Each bargaining unit employee who receives a performance award for Outstanding (Level 5) job performance shall be given the same percentage of their base annual salary for their Outstanding performance rating.
At the election of the Employer, bargaining unit employees whose annual performance appraisal rating reflects job performance at the Excellent level (Level 4) shall be given a performance award of from 1 to 3% of their base annual salary within thirty days of the end of the annual rating period for which their performance was judged to have been Excellent, re 5 CFR Section 540.109(d)(2), Regional Office Incentive Awards Program, "Performance Awards".
Should the Employer elect to give bargaining unit employees a performance award for Excellent (Level 4) job performance, all bargaining unit employees rated as excellent performers shall be given a performance award, and each Excellent rated performer shall receive the same percentage of their base annual salary for their Excellent performance rating.
The minimum amount of any single award for either Outstanding or Excellent rated performance shall be $300, re Regional Office Incentive Awards Program, "Performance Awards".
A. Positions of the Parties
As a preliminary matter, the Agency asserts that the positions covered by 5 C.F.R. ° 540.109, "cited by the [U]nion as the statutory basis for the proposals, are not within the unit of recognition . . . ." Statement of Position at 3 (emphsis in original).
The Agency also contends that the proposals are nonnegotiable because they eliminate management's "option" to approve or disapprove performance awards and, therefore, conflict with 5 C.F.R. ° 430.503(c)(1). Id. at 4. In addition, the Agency asserts that Proposal 1.5 is nonnegotiable because it directly interferes with management's right under section 7106(a)(1) of the Statute to determine its budget. Further, the agency claims that Proposal 1.5 conflicts with an Agency regulation which "prescribes the allowable range of awards for ratings of Outstanding or Excellent." Id. at 5.
The Union contends that the proposals do not conflict with 5 C.F.R. ° 430.503(c)(1) and its required "procedure 'for review and approval'" of each performance award determination. Reply Brief at 4. The Union asserts that the proposals simply "mirror" Agency awards guidelines. Id.
B. Analysis and Conclusion
1. Preliminary Matter
We reject the Agency's argument that the proposals are nonnegotiable because they apply to nonunit positions. The proposals apply, by their terms, to bargaining unit employees and we find no basis for concluding that the proposals are intended to apply in any other manner.
2. The Proposals Are Nonnegotiable
Proposals 1.1 through 1.5 would prescribe performance awards or the amount or method for determining the amount of such awards. The Agency contends that the proposals are inconsistent with the requirement in 5 C.F.R. ° 430.503(c)(1) that Agency officials have the "option of approving or disapproving" performance awards. Statement of Position at 4. We agree with the Agency but note that our determination is based on 5 C.F.R. ° 430.504(d), a revised regulation which was issued by the Office of Personnel Management (OPM) and replaces 5 C.F.R. ° 430.503(c)(1).(*)
In Washington Area Metal Trades Council and U.S. Department of the Navy, Naval Research Laboratory, Washington, D.C., 44 FLRA 733 (1992) (Navy), we found nonnegotiable a proposal which mandated that monetary awards be given based on performance. We relied on our decision in National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1460-65 (1992) (Treasury), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 92-1161 (D.C. Cir. April 10, 1992), to conclude that 5 C.F.R. ° 430.504(d) requires agency review and approval of decisions to grant performance awards. We concluded that section 430.504(d) also preserves the agency's right to disapprove performance awards. See also National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 47, 48-53 (1991) (Underwater Systems Center).
Proposals 1.1, 1.2, and 1.5 would require that performance awards be given to employees without regard to the review and approval mandated by 5 C.F.R. ° 430.504(d). Therefore, consistent with our decision in Navy, we conclude that these proposals are inconsistent with section 430.504(d).
Although Proposal 1.3 does not require the Agency to grant an award to an employee with an excellent performance rating, the proposal would dictate a range within which the amount of an award must fall where the Agency elects to award performance at the excellent level. Similarly, Proposal 1.4 requires, where the Agency elects to award employees for performance at the excellent level, that all employees performing at that level receive an award based on the same percentage of salary.
In addition to the requirements for review and approval of a decision to grant an award, 5 C.F.R. ° 430.504(d) requires that an agency have the authority to review and approve the decision as to the amount of the performance award as well as the decision to grant an award. See Underwater Systems Center, 43 FLRA at 52. Consequently, because Proposals 1.3 and 1.4 would dictate the method for calculating the amount of awards given for excellent performance, without providing for Agency review and approval, we conclude that these proposals are also inconsistent with section 430.504(d).
The regulations governing performance awards, promulgated by OPM at 5 C.F.R. part 430, are Government-wide regulations. For example, Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 950 (1990). Accordingly, because the proposals are inconsistent with 5 C.F.R. ° 430.504(d), they are nonnegotiable under section 7117(a)(1) of the Statute. In view of our decision, it is unnecessary to address the Agency's additional contentions regarding Proposal 1.5.
The Union's petition for review is dismissed.
(If blank, the decision does not have footnotes.)
(d) The decision to grant a performance award, including the amount of such award, shall be reviewed and approved by an official of the agency who is at a higher level than the official who made the initial decision, unless there is no official at a higher level in the agency.
5 C.F.R. § 430.503(c)(1) provided:
(c)(1) Agency procedures for making performance awards determinations must include a requirement for review and approval of each determination by an official of the agency who is at a higher level than the official who made the initial decision, unless there is no official at a higher level in the agency, and also by the official(s) with responsibility for managing the performance awards budget within the agency.