National Treasury Employees Union (Union) and Department of Health and Human Services, Region X, Seattle, Washington (Activity) (Authority decision, May 28, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union proposed rating schedules for merit promotions in a federal social insurance program office. The agency said national rating factors and weights were necessary for technical program jobs. The Authority found that the agency had not supported its compelling need claim. It ordered bargaining on the proposal upon request or as otherwise agreed.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Agency nonnegotiability position set aside; bargaining ordered.
• Key point: An unsupported compelling need claim did not remove a promotion rating proposal from bargaining.

Full text (FLRA public release)

[ v05 p688 ]

05:0688(93)NG

The decision of the Authority follows:

5 FLRA No. 93

NATIONAL TREASURY EMPLOYEES UNION
Union

and

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION X,
SEATTLE, WASHINGTON
Activity

Case No. 0-NG-286

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101
ET SEQ.).

DURING THE COURSE OF CONTRACT NEGOTIATIONS, THE UNION SUBMITTED A
PROPOSAL CONCERNING THE RATING SCHEDULE TO BE USED IN CONNECTION WITH
MERIT PROMOTIONS. THE ACTIVITY DECLARED THE PROPOSAL NONNEGOTIABLE WITH
RESPECT TO SOME UNSPECIFIED "TECHNICAL PROGRAM OPERATIONS JOBS" IN THE
BARGAINING UNIT, ASSERTING THAT THERE IS A COMPELLING NEED FOR THE
SOCIAL SECURITY ADMINISTRATION (SSA) TO MAINTAIN NATIONAL STANDARD
FACTORS AND WEIGHTS FOR PROMOTION AS TO SUCH POSITIONS. THE UNION'S
PROPOSAL IS AS FOLLOWS: /1/

UNION PROPOSAL

MERIT PROMOTION

APPENDIX A

PROCEDURES FOR EVALUATING/RATING ELIGIBLES

1. RELATIVE VALUES OF RATING ELEMENTS WILL BE ASSIGNED AND RATING
   SCHEDULES DEVELOPED FOR EACH INDIVIDUAL POSITION.

ONCE ESTABLISHED THE RATING SCHEDULE WILL REMAIN THE SAME EACH TIME
THE SAME OR IDENTICAL POSITION IS ANNOUNCED. THE TOTAL VALUE TO BE
ASSIGNED IS 100. THE MINIMUM AND MAXIMUM VALUE ASSIGNED TO EACH ELEMENT
SHALL BE AS FOLLOWS:

2. THE PERFORMANCE APPRAISAL WILL HAVE A VALUE OF 55 POINTS. THE
   OTHER FACTORS WILL HAVE A TOTAL OF 45 POINTS, WITH THE EXPERIENCE FACTOR
   HAVING A MAXIMUM OF 35 POINTS. THE OTHER FACTORS ARE LIMITED TO AWARDS,
   OUTSIDE ACTIVITIES ADDITIONAL RANKING FACTORS (IF ANY), AND TRAINING AND
   SELF DEVELOPMENT.

3. WHEN PANELS ARE USED, THE TOTAL SCORES ASSIGNED BY INDIVIDUAL
   PANEL MEMBERS WILL BE AVERAGED TO ARRIVE AT A FINAL RATING FOR EACH
   CANDIDATE.

4. CANDIDATES RECEIVING A SCORE OF 50 POINTS OR MORE WILL BE RATED
   AS HIGHLY QUALIFIED.

5. EVALUATION METHOD FOR PERFORMANCE APPRAISALS

IN RATING QUALIFIED CANDIDATES, PERFORMANCE APPRAISALS WILL BE
EVALUATED AS FOLLOWS:

STEP 1-- ADD UP THE RATING SCORES ON THE FIVE PERFORMANCE APPRAISAL
FACTORS.

STEP 2-- MULTIPLY THE TOTAL BY 2.2.

STEP 3-- THE TOTAL REPRESENTS THE APPLICANT'S PERFORMANCE APPRAISAL
SCORE.

EMPLOYEES OF OTHER FEDERAL AGENCIES WILL BE CREDITED POINTS BY
EQUATING THEIR APPRAISAL CATEGORIES TO OURS.

QUESTION BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING MERIT
PROMOTION PROCEDURES FALLS WITHIN THE DUTY TO BARGAIN AS SET FORTH IN
SECTION 7117 OF THE STATUTE, /2/ OR WHETHER, AS ALLEGED BY THE AGENCY,
THE DUTY TO BARGAIN DOES NOT EXTEND TO THE PROPOSAL BECAUSE THERE IS A
COMPELLING NEED FOR SSA TO MAINTAIN NATIONAL FACTORS AND WEIGHTS FOR
PROMOTION.

OPINION

CONCLUSION AND ORDER: THE AGENCY HAS FAILED TO SUPPORT ITS
ALLEGATION THAT THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN AS
SET FORTH IN SECTION 7117 OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10,
AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON
REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
THE SUBJECT PROPOSAL. /3/

REASONS: AS NOTED ABOVE, THE AGENCY'S SOLE CONTENTION IS THAT A
COMPELLING NEED EXISTS FOR THE NATIONAL STANDARD FACTORS AND WEIGHTS
ESTABLISHED BY SSA, A PRIMARY NATIONAL SUBDIVISION, WITH RESPECT TO
PROMOTIONS INVOLVING THOSE EMPLOYEES OF THE ACTIVITY OCCUPYING HIGH
GRADED TECHNICAL PROGRAM JOBS. THE AGENCY ASSERTS THAT NATIONAL
STANDARDIZATION OF FACTORS AND WEIGHTS IS ESSENTIAL TO THE
ACCOMPLISHMENT OF ITS MISSION OF FURNISHING UNIFORM SOCIAL INSURANCE AND
OTHER PROGRAM BENEFITS TO THE GENERAL PUBLIC. THE AGENCY'S CONCERN
APPEARS TO BE THAT LOCAL NEGOTIATIONS WHICH WOULD VARY THE FACTORS AND
WEIGHTS USED IN RATING AND EVALUATING CANDIDATES FOR CERTAIN SSA
POSITIONS MIGHT RESULT IN LESS TECHNICALLY COMPETENT INDIVIDUALS
OCCUPYING THOSE POSITIONS, IN TURN NEGATIVELY AFFECTING THE QUALITY OF
SERVICE PROVIDED BY THE SSA IN REGION X.

THE AUTHORITY HAS PREVIOUSLY STATED THAT WHERE AN AGENCY ASSERTS A
COMPELLING NEED EXISTS FOR AN INTERNAL AGENCY REGULATION TO BAR
NEGOTIATIONS ON A CONFLICTING COLLECTIVE BARGAINING PROPOSAL UNDER
SECTION 7117(A)(2) (SUPRA N. 2), "THE AGENCY BEARS THE BURDEN OF COMING
FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ASSERTION THAT THE REGULATION
IN QUESTION BARS NEGOTIATIONS . . ." /4/ IN THE INSTANT CASE, THE AGENCY
HAS FAILED TO COME FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ALLEGATION
THAT A COMPELLING NEED EXISTS WITHIN THE MEANING OF THE STATUTE AND
SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS /5/ FOR AN
AGENCY RULE OR REGULATION CONCERNING NATIONAL STANDARD FACTORS AND
WEIGHTS WHICH PURPORTEDLY GOVERN THE FILLING OF UNSPECIFIED SSA
POSITIONS IN REGION X, AND FURTHER HAS FAILED TO DEMONSTRATE IN WHAT
MANNER THE UNION'S PROPOSAL WOULD CONFLICT WITH THE NATIONAL STANDARD
AND HENCE BE NONNEGOTIABLE. IN THE LATTER REGARD, THE AGENCY HAS NOT
EVEN IDENTIFIED OR SUBMITTED FOR THE AUTHORITY'S CONSIDERATION, AS
REQUIRED BY SECTION 2424.6(A)(2) OF THE RULES AND REGULATIONS, THE
INTERNAL RULE OR REGULATION WHICH IS THE SUBJECT OF THE COMPELLING NEED
ARGUMENT AND WHICH PURPORTEDLY CONTAINS THE NATIONAL FACTORS AND
WEIGHTS. UNDER THESE CIRCUMSTANCES, THE AUTHORITY FINDS THAT THE AGENCY
HAS FAILED TO SUPPORT IN ANY MANNER ITS ALLEGATION THAT THE UNION'S
PROPOSAL IS BARRED FROM NEGOTIATIONS BECAUSE OF AN INTERNAL AGENCY RULE
OR REGULATION FOR WHICH A COMPELLING NEED EXISTS. MOREOVER, THE AGENCY
HAS NOT ALLEGED, NOR DOES IT OTHERWISE APPEAR, THAT THE UNION'S PROPOSAL
IS INCONSISTENT WITH ANY FEDERAL LAW OR GOVERNMENT-WIDE RULE OR
REGULATION SO AS TO BE OUTSIDE THE DUTY TO BARGAIN. /6/

ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS
NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.

ISSUED, WASHINGTON, D.C., MAY 28, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION FILED WITH
THE AUTHORITY, THE UNION ATTACHED A PROPOSAL WHICH IS SLIGHTLY DIFFERENT
FROM THAT ORIGINALLY SUBMITTED IN ITS PETITION FOR REVIEW AS SET FORTH
HEREIN. INASMUCH AS THE ACTIVITY'S ALLEGATION OF NON-NEGOTIABILITY, THE
UNION'S PETITION FOR REVIEW AND THE AGENCY'S STATEMENT OF POSITION ALL
ADDRESSED THE LANGUAGE OF THE PROPOSAL AS ORIGINALLY SUBMITTED, THE
AUTHORITY'S DECISION IN THIS CASE IS BASED THEREON CONSISTENT WITH THE
CONDITIONS GOVERNING REVIEW OF NEGOTIABILITY ISSUES SET FORTH IN SECTION
2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.1).

/2/ SECTION 7117(A) OF THE STATUTE PROVIDES AS FOLLOWS:

SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT

(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH

SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR

REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE

OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.

(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL

LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY

AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE

AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS

DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.

(3) PARAGRAPH (2) OF THE SUBSECTION APPLIES TO ANY RULE OR REGULATION
ISSUED BY ANY AGENCY

OR ISSUED BY ANY PRIMARY NATIONAL SUBDIVISION OF SUCH AGENCY, UNLESS
AN EXCLUSIVE

REPRESENTATIVE REPRESENTS AN APPROPRIATE UNIT INCLUDING NOT LESS THAN
A MAJORITY OF THE

EMPLOYEES IN THE ISSUING AGENCY OR PRIMARY NATIONAL SUBDIVISION, AS
THE CASE MAY BE, TO WHOM

THE RULE OR REGULATION IS APPLICABLE.

/3/ IN DECIDING THAT THE DISPUTED PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF SUCH
PROPOSAL.

/4/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1928 AND DEPARTMENT OF THE NAVY, NAVAL AIR DEVELOPMENT CENTER,
WARMINSTER, PENNSYLVANIA, 2 FLRA NO. 62 (1980).

/5/ SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS
PROVIDES:

SEC. 2424.11 ILLUSTRATIVE CRITERIA

A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
ANY CONDITION OF

EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE OR REGULATION
MEETS ONE OR MORE OF THE

FOLLOWING ILLUSTRATIVE CRITERIA:

(A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
HELPFUL OR DESIRABLE, TO THE

ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
AGENCY OR PRIMARY NATIONAL

SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
AN EFFECTIVE AND

EFFICIENT GOVERNMENT.

(B) THE RULE OR REGULATION IS NECESSARY TO INSURE THE

MAINTENANCE OF BASIC MERIT PRINCIPLES.

(C) THE RULE OR REGULATION IMPLEMENTS A MANDATE TO THE AGENCY OR
PRIMARY NATIONAL

SUBDIVISION UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
IMPLEMENTATION IS ESSENTIALLY

NON-DISCRETIONARY IN NATURE.

/6/ SEE, E.G., INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL F-61
AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66(1980) AT P. 4 OF THE
DECISION AND NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980) AT P. 9 OF
THE DECISION.