---

43 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-144

FEDERAL UNION OF SCIENTISTS AND ENGINEERS

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERWATER SYSTEMS CENTER

NEWPORT, RHODE ISLAND

(Agency)

0-NG-1650

(38 FLRA 456 (1990))

DECISION AND ORDER ON REMAND

November 4, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. United States Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. July 23, 1991) (order). In our earlier decision in this case, we rejected the Agency's argument that Proposals 11 and 12 were inconsistent with a Government-wide regulation issued by the Office of Personnel Management (OPM) that governed review and approval of performance awards. 38 FLRA at 491-93. On May 3, 1991, while a petition for review concerning this case was pending before the court,⁽¹⁾ OPM issued interim regulations that included a provision addressing the review and approval of performance award decisions. 56 Fed. Reg. 20331, 20333. In view of the relevance of this new regulation to Proposals 11 and 12, the court remanded the case for reconsideration.

Upon remand of this case, we issued an order directing the parties to file supplemental briefs concerning the effect of the interim regulation on the negotiability of Proposals 11 and 12. In response to that order, the Agency filed a supplemental brief and the Union filed a response.

II. Proposals 11 and 12

[Proposal 11]

Item 9(e)(6). Payment of Awards

(a) Employees shall be considered for performance awards using the percentage amounts shown in paragraph 9f below. (b) When awards are made within a pool[,] the amount (i.e. the percentage of base pay) paid to employees at the same grade level who rated "Outstanding" (O) must be at least 2% of base pay, paid to the "Outstanding" rated employee(s), the amount paid to "Exceeds Fully Successful" (EFS) rated employees must be at least 0.75% of base pay and must be less than that paid "O" rated employees, the amount paid to "Fully Successful" (FS) rated employees shall be at least 0.25% and must be less than the amount paid to "EFS" rated employees. An exception to the rule is permitted in those cases where an employee has been promoted during the performance appraisal period. In such cases the full payment of a performance award may be restricted to a lesser amount, but no less than 2% of base pay for an employee rated "O" and no less than 0.75% for "EFS" and no less than 0.25% for "FS". In all cases awards will be calculated as a (%) percentage of basic pay rather than as an absolute amount when determining whether the proper relationship between award levels exists.

[Proposal 12]

Item 9f. Rating/Payout Conversion
(1) Payout Conversion Table

RATING	WITHIN GRADE INCREASE	QUALITY STEP  INCREASE (QSI)	PERFORMANCE  AWARD (PA)1/ % OF SALARY
"O"	FULL	YES	2 - 20% 2/
"EFS"	FULL	NO	0.75% - 10%
"FS"	FULL	NO	0.25% - 10%
MARGINAL	ZERO	NO	ZERO
UNSATIS- FACTORY	ZERO	NO	ZERO

1/ The payment of Quality Step Increases and/or performance awards is optional, the amount of payment is optional within range shown for performance awards.

[2/] All awards [equal to or greater than] $2000 shall be forwarded to the Incentive Awards Committee for review and recommendation to the Commander.

III. Positions of the Parties

In its supplemental brief, the Agency argues that these two proposals are nonnegotiable because they are inconsistent with a Government-wide regulation to be codified at 5 C.F.R. § 430.504(d). According to the Agency, this revised regulation "provides that a decision be made concerning whether an award is to be granted." Agency supplemental brief at 2. The Agency contends that this regulation also provides for higher level review of the amount of an award as well as the decision to grant an award. Thus, the Agency asserts that under this OPM regulation, the reviewer is required to pass specifically on the amount of the award. The Agency contends that by specifying the amount of a particular award, these proposals "dictate[ ] to higher level management those awards that it may and may not grant, rendering meaningless the review required by the regulation." Id.

Additionally, the Agency contends that under OPM's regulations, "management possesses not only the right to review awards but the right to recommend the awards that are to be reviewed." Id. at 3. The Agency asserts that these proposals dictate to management the amount of the award that it can recommend as well as the amount of the award that it can approve and, thus, are inconsistent with OPM's regulations.

The Union contends that these proposals are negotiable. The Union asserts that both the judicial system and the Authority have ruled that "levels and rates of performance award payments" are within the duty to bargain. Union supplemental brief at 1. Specifically, the Union cites American Federation of Government Employees, AFL-CIO, Local 3477 and Commodity Futures Trading Commission, 27 FLRA 440 (1987) (CFTC); National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132 (1987) (IRS); and National Treasury Employees Union v. FLRA, 793 F.2d 371 (D.C. Cir. 1986) (NTEU v. FLRA). The Union contends that these decisions are controlling.

Further, the Union argues that OPM's regulations do not supersede the Union's proposals because the regulations and proposals "deal with different issues." Union supplemental brief at 2. In this regard, the Union contends that its proposals "concern the rates for performance awards, not the initial determination of whether they are granted, and not the review process." Id. Additionally, citing American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380 (1987), the Union asserts that "since the negotiability of the Union's proposal is not barred by [F]ederal statute, it should not be barred by an interim regulation." Union supplemental brief at 2.

IV. Analysis and Conclusions

Under the Statute, the duty to bargain extends to conditions of employment affecting employees in a unit of exclusive recognition unless the matters proposed for bargaining are inconsistent with Federal law, Government-wide rule or regulation, or an agency regulation for which a compelling need exists. See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 771 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Thus, while a particular matter may not be removed from the scope of the duty to bargain by operation of law, it is nonetheless nonnegotiable if it is inconsistent with a Government-wide regulation. Consequently, the Union's claim that the decisions in CFTC, IRS, and NTEU v. FLRA are dispositive of the question of the negotiability of these proposals is misplaced. The issue before us is whether Proposals 11 and 12 are nonnegotiable because they are inconsistent with a Government-wide regulation.

The specific regulation cited by the Agency is included in interim regulations that were issued by OPM on May 3, 1991. In issuing these regulations OPM waived the general notice of proposed rulemaking and the delay in their effective date in order to make the regulations "effective within 180 days after the enactment of Public Law 101-509, as required by section 305 of [the Federal Employees Pay Comparability Act of 1990]." 56 Fed. Reg. 20331, 20332. Although OPM simultaneously requested comments on the interim regulations, they nevertheless became effective on May 4, 1991. ⁽²⁾ 56 Fed. Reg. 20331. At issue here is section 430.504(d) of the interim regulations, which is to be codified at 5 C.F.R. § 430.504(d), and which provides:

(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.

We have previously found that this provision is a Government-wide regulation. National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 1349, 1361 (1991), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 91-1503 (D.C. Cir. Oct. 15, 1991). Therefore, if Proposals 11 and 12 are inconsistent with this provision they are nonnegotiable.

In Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938 (1990) (Proposal 2) (Norfolk Naval Shipyard), we discussed the effect of an OPM regulation, then in effect, that required that determinations on granting performance awards be reviewed and approved by an agency official at a higher level than the recommending official, on the negotiability of a proposal that mandated the granting of performance awards. In Norfolk Naval Shipyard, we found that the expressed authority to review and approve "inherently encompasses the authority to review and disapprove." 37 FLRA at 950. We stated that "we are unable to conclude that the review and approval process mandated by the regulation would be satisfied if, after reviewing awards determinations, the . . . official were required to approve the awards." Id.

As written, section 430.504(d) requires that the amount of a recommended performance award be subject to review and approval by an agency official at a higher level than the recommending official as a discrete component of the decision-making process involved in granting awards. We find that this regulatory provision clearly contemplates that the reviewing official will have the authority to review the decision as to the amount of the performance award as well as the decision to grant an award. Thus, the interim regulations accord the same status to higher level review of the amount of performance awards as that which the previous regulations accorded to the determination to grant an award.

These proposals would effectively preempt the authority of the reviewing official with respect to determining the amount of an award by prescribing a range within which the amount must fall. Where a Government-wide regulation provides for a determination to be made by a particular official as a condition precedent to further action, a proposal that preempts the determination to be made by that official is inconsistent with the regulation. See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1121-22 (1991), petition for review filed as to other matters sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 91-1493 (D.C. Cir. Oct. 8, 1991).

Based on the foregoing, we conclude that these proposals are nonnegotiable because they are inconsistent with a Government-wide regulation. In reaching this conclusion, we note that the circumstances here are distinguishable from those in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380 (1987) (Member Frazier dissenting), aff'd sub nom. Office of Personnel Management v. FLRA, 864 F.2d 165 (D.C. Cir. 1988), which is cited by the Union. Then-Chairman Calhoun's opinion in that case, in which then-Member McKee concurred in relevant part, stated that "[a] Government-wide regulation which essentially restates a management right under section 7106 should not constitute a greater bar to bargaining than the statutory right itself." 29 FLRA at 400. The conclusion reached by the majority in that decision applied in very narrow circumstances that are not present here. In the instant case, there is no claim, and it is not otherwise apparent to us, that section 430.504(d) restates a provision contained in the Statute.

V. Order

The Union's petition for review with respect to Proposals 11 and 12 is dismissed.

---

---

---

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

1. The earlier decision addressed a number of proposals in addition to Proposals 11 and 12; however, before the court, the Agency was seeking review solely with respect to Proposals 11 and 12.

2. It is well established that the Authority applies the law as it is at the time of a decision. For example, U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 710-13 (1991), petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 28, 1991). This includes the application of provisions contained in Government-wide regulations in ruling on the negotiability of proposals. See, for example, id. (in ruling on the negotiability of Proposal 3, we applied the provisions of the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services that were in effect at the time of the decision in the case). We also note that we have no authority to adjudicate the validity of a Government-wide regulation promulgated by another Federal administrative agency. See, for example, Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 492, 558-59 n.4, (1987) aff'd sub nom. Overseas Education Association v. FLRA, 858 F.2d 769 (D.C. Cir. 1988).

---