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38 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1409

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ABERDEEN PROVING GROUND SUPPORT ACTIVITY

ABERDEEN PROVING GROUND, MARYLAND

(Agency)

0-NG-1843

DECISION AND ORDER ON NEGOTIABILITY ISSUE

December 6, 1990

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 concerning performance awards. The Agency contends that the proposal is not within the duty to bargain because it violates 5 U.S.C. § 4302(b)(3) and (4) and 5 C.F.R. §§ 430.203, 430.204, 430.206(b) and 430.506(a) and, additionally, interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. For the reasons that follow we reject the Agency's contentions and find that the proposal, except for the phrase "at the Commander's discretion," which appears in the last sentence, is negotiable.

II. The Proposal

An employee rated above the level of Fully Successful on the rating of record under the Performance Management System outlined in AR 690-400, Chapter 430, will be nominated for a performance award. All nominations will be forwarded to the Commander and will normally be approved by the Commander or his designee. Prior to disapproval for cause the Commander (or his designee) will notify the Union of the disapproval and discuss the matter. Awards will be based on a percentage of the employees' current base salary and will be in the following range:

Highly Successful: 2-4%

Exceptional: 3-5%

Awards are subject to budget limitations and the range may be increased at the Commander's discretion for individual cases.

III. Positions of the Parties

The Agency contends that under 5 C.F.R. § 430.506(a), which is a Government-wide regulation, agencies are required to establish a performance awards program that necessarily entails the granting of performance awards where warranted. It further contends that 5 U.S.C. § 4302(b)(4) requires recognition and reward of employees "whose performance so warrants." Agency statement of position at 2. The Agency argues that, by limiting its ability to determine the amount of awards granted, the proposal would prevent it from giving awards to deserving employees because of budget limitations.

The Agency also contends that 5 U.S.C. § 4302(b)(3) as well as 5 C.F.R. §§ 430.203, 430.204 and 430.206(b), which are Government-wide regulations, require that an agency consider only merit in determining performance ratings. The Agency asserts that because of the mandatory nature of the proposal, "if budgetary limitations are exceeded, certain employees, who deserve warrant [sic] performance awards, cannot receive them. Thus, the activity will be required to consider budgetary limitations when issuing performance ratings." Id. at 3. The Agency contends that by introducing a non-merit factor, i.e., budgetary limitations, into the rating process, the proposal violates the cited law and Government-wide regulations.

The Agency contends that the last sentence of the proposal violates management's right to assign work because it requires a particular individual to perform particular duties by providing that only the Commander has discretion to increase the range of performance awards.

The Union explains the proposal as providing for recommendations for performance awards based on achievement of a performance rating of above the Fully Successful level. Union reply brief at 3. It describes the second and third sentences as allowing for approval or disapproval of the recommendation by the Agency. Id. According to the Union, the remainder of the proposal provides that the amount of approved awards will be in the specified ranges, subject to budget limitations, and also provides the Agency with the option of increasing the amount in individual cases. Id. The Union contends that the reference to the "Commander" in the last sentence is merely to identify the location of the authority to increase awards and not to designate an individual to whom the work of exercising that discretion must be assigned. Id.

In response to the Agency's arguments that the proposal is inconsistent with 5 U.S.C. § 4302(b)(4) and 5 C.F.R. § 430.506(a), the Union contends that the proposal does not specify the manner in which the Agency's awards program must be implemented if "budget limitations" prevent application of the formula specified in the proposal. The Union states that under its proposal the Agency "would be free [to] maintain its performance award program (thus complying with 5 C.F.R. [§] 430.506(a)) and to recognize and reward employees, as required by 5 U.S.C. [§] 4302(b)(4), albeit to a lesser extent than is required by the proposal, e.g., with smaller cash awards or purely honorific awards." Union reply brief at 7-8 (emphasis in original).

In response to the Agency's arguments that the proposal is inconsistent with 5 U.S.C. § 4302(b)(3) and 5 C.F.R. §§ 430.203, 430.204 and 430.206(b), the Union asserts that the proposal is significantly different from those addressed in National Association of Government Employees, Locals R4-26 and R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 607 (1988), rev'd sub nom. Department of the Air Force, Langley Air Force Base v. FLRA, 878 F.2d 1430 (4th Cir. 1989) (per curiam) (unpublished order) (Langley Air Force Base). Specifically, the Union cites the fact that the proposal in this case, unlike those at issue in Langley Air Force Base "permits the [Agency] not to issue monetary awards," and expressly allows for "non-application of the awards formula" if budget limitations exist. Union reply brief at 11. The Union argues that as a consequence of these features the Agency has no grounds to argue that application of its rating system would not be based on performance alone but would necessarily be influenced by budgetary considerations as a consequence of the proposal.

The Union contends that the last sentence of the proposal does not interfere with management's right to assign work. In support, the Union states that this sentence does not identify duties at all; does not require that anyone increase the range of performance awards; and does not bar the Agency from exercising its discretion to increase awards above the proposed levels in any way, including by delegating that discretion anywhere within the Agency's organization. Additionally, the Union argues that the proposal is not inconsistent with management's right to determine its budget.

The Union asserts that, in the event that the Authority determines that the proposal conflicts with a management right, the proposal constitutes an appropriate arrangement negotiable under section 7106(b)(3) of the Statute.

IV. Analysis and Conclusions ⁽¹⁾

The Agency's argument that the proposal conflicts with 5 U.S.C. § 4302(b)(4) and 5 C.F.R. § 430.506(a) is based on a misinterpretation of the proposal. Specifically, the Agency construes the proposal as making awards mandatory, except for cause, and prohibiting any reduction in the amount of the award below the specified range. However, the Union explicitly states that, under the proposal, the performance awards provided for would not have to be approved and that "no 'showing of cause' is required for disapproved awards." Union reply brief at 3-4. Moreover, the Union states that awards would not have to be issued if budget limitations warrant such action and that, under such circumstances, the Agency also retains the discretion to reduce the amount of the award. Although the Union's explanation that "no 'showing of cause' is required for disapproved awards" is apparently inconsistent with the language of the proposal, this does not change the non-mandatory nature of the proposal. The proposal specifically contemplates that recommendations for awards may be disapproved "for cause" without specifying any standard that the "cause" must meet, such as, "good" or "just." As written, the proposal requires no more than that the Agency have a reason for its disposition of a recommendation and, consequently, does not limit the Agency's ability to disapprove the recommendation. Thus, we find that the Union's explanation of the proposal as being non-mandatory in nature is consistent with the language of the proposal and we adopt it for purposes of our analysis. See, for example, American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276, 1285 (1990).

Based on this interpretation, the proposal would neither require that an award be given nor prevent the Agency from reducing the amount of an award below the range set forth in the proposal in the face of "budgetary limitations." Therefore, we reject the Agency's argument that the proposal mandates awards and prevents reduction in the amount of awards and that, by such effect, it is inconsistent with 5 U.S.C. § 4302(b)(4) and 5 C.F.R. § 430.506(a). Because we reject the Agency's interpretation on which its assertion that the proposal conflicts with the cited law and Government-wide regulations is based, it is unnecessary to address the merits of the Agency's arguments as to the legal effect of those provisions.

The Agency makes a similar underlying argument to support its claim that the proposal is inconsistent with 5 U.S.C. § 4302(b)(3) and 5 C.F.R. §§ 430.203, 430.204 and 430.206(b). The Agency asserts that these provisions effectively require that evaluation of employees be based on performance standards, or, in other words, merit, and that the mandatory nature of the proposal would result in economic factors being considered in evaluating employee performance. As discussed above, the proposal does not require that recommendations for awards be approved and allows an exception with respect to the specified range of amounts in the face of budget limitations. Consequently, we reject the Agency's argument that the proposal is mandatory in nature and its contention that, because of that mandatory nature, the proposal conflicts with the legal and regulatory provisions cited. We do not address the merits of its interpretation as to the legal effects of those provisions. See National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA No. 46 (1990) (Proposals 11 and 12) (Naval Underwater Systems Center).

With respect to the last sentence of the proposal, the Agency argues that the aspect of the proposal that refers to "the Commander's discretion" interferes with management's right to assign work by requiring that a particular individual perform particular duties. In our view, designating a particular individual as the repository for discretion over a particular matter inherently includes designating him/her as the individual responsible for the exercise of that discretion. That designation, in turn, requires the designated individual to perform whatever tasks are involved in exercising the discretion or delegate responsibility for those tasks elsewhere. The designation of a particular management official to perform specified tasks is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 651-52 (1988); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1389-92 (1987), aff'd sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).

By designating the Commander as the official responsible for tasks associated with exercising the discretion to increase the range of awards in individual cases, that portion of the proposal interferes with the Agency's right to assign work. The Union's statements as to the intent of the proposal indicate that, in identifying "the Commander," it was merely recognizing the location of plenary authority within the Agency rather than attempting to require that "the Commander" do anything. If this is the Union's objective, the Union could easily rephrase the proposal to accomplish that objective (for example, by substituting "Agency" for "Commander") without casting the proposal in language that singles out a particular individual who will be responsible for exercising the identified discretion or authority. Based on precedent, we find that the phrase "at the Commander's discretion" contained in the last sentence interferes with management's right to assign work.⁽²⁾

The Union proffers as an alternative argument that, in the event that the Authority determines that the proposal conflicts with a management right, the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. Specifically, the Union describes the proposal as providing a procedure for recognizing and, within budgetary limitations, rewarding employees for highly successful or exceptional performance.⁽³⁾ We read the Union's arguments concerning the applicability of section 7106(b)(3) as applying to the proposal as a whole as opposed to singling out the phrase "at the Commander's discretion" as constituting, in and of itself, an appropriate arrangement. Moreover, a deletion of that phrase from the proposal would have no impact on the Union's stated purpose of establishing a procedure for recognizing and rewarding employees and providing consistency and equity to the awards program. Consequently, we do not construe the Union's arguments as presenting the question of whether the phrase "at the Commander's discretion," by itself, constitutes an appropriate arrangement negotiable under section 7106(b)(3) of the Statute.

Based on the foregoing we conclude that, with the exception of the phrase "at the Commander's discretion" in the last sentence, the proposal is negotiable.

V. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning the proposal with the exception of the phrase "at the Commander's discretion," which appears in the last sentence.⁽⁴⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union requests that in the event that the Authority should determine that some but not all of the disputed language is within the obligation to bargain, the Authority sever such portion(s) for purposes of this decision. We grant the Union's request to the limited extent that we will rule separately upon those portions of the proposals that, as submitted, we view as being able to stand independently of the rest of the proposal and that have been specifically addressed by the parties. See, for example, Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 492 (1987), aff'd as to other matters sub nom. Overseas Education Association Inc., v. FLRA, 858 F.2d 769 (D.C. Cir. 1988).

2. Unlike the last sentence, the Agency does not challenge the references to "the Commander" and "his designee" that appear elsewhere in the proposal. Additionally, it does not appear that the purpose of the proposal is to restrict the Agency's ability to designate the individual who will consider award recommendations, notify the Union of disapprovals, and discuss them with the Union. Moreover, the parties apparently do not view the proposal as restricting the Agency's rights in this manner. Consequently, Chairman McKee and Member Talkin will not consider whether those portions of the proposal conflict with management's right to assign work. See Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 526-29 (1990); compare Naval Underwater Systems Center, 38 FLRA No. 46 (with respect to Proposals 7 and 8, the agency specifically raised the requirement that a particular office or official perform designated tasks as a ground for asserting that the proposals were nonnegotiable and it appeared that the proposals were intended to restrict the agency in its designation of the particular office or official to perform specified tasks).

3. The Union also provides arguments to counter an assertion that the proposal interferes with management's right to determine the budget of the agency. Because the Agency did not raise that particular management right as a bar to negotiation of the proposal, it is unnecessary to address the Union's argument concerning the applicability of that right.

4. In finding that the proposal is within the duty to bargain, we make no judgment as to its merits.

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