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55 FLRA No. 164
NTEU and U.S. Department of the Treasury Internal Revenue Service, Case No. 0-NG-2455 (Decided September 30, 1999)
This case concerned the negotiability appeal of a single provision of the parties' collective bargaining agreement that was disapproved pursuant to Agency head review under section 7114(c) of the Statute. The Authority found that the provision was not contrary to law or Government-wide regulation and order the Agency to rescind its disapproval.
The Authority explained that under 5 U.S.C. chapter 43 and its implementing regulations, 5 C.F.R. part 430 (part 430), job performance may not encompass duties and responsibilities performed on official time on behalf of a labor organization, but, instead, is intended to encompass an employee's performance of agency-assigned duties and responsibilities. In particular, under 5 U.S.C. § 4302, as interpreted and applied by the Authority, critical elements and performance standards encompass only agency assigned duties and responsibilities. The issue in this case was whether the minimum appraisal period for Union representatives established by the disputed provision is inconsistent with part 430.
The Authority found that the Agency had discretion, in establishing performance appraisal programs under part 430, to determine the minimum length of an appraisal period, as long as that appraisal period is consistent with law, regulation, and the Agency's own appraisal system. Because a minimum appraisal period of 120 hours, as set forth in the provision, was consistent with law and regulation, and was not barred by the Agency's appraisal program. The provision was within the Agency's discretion under part 430 and was not inconsistent with 5 C.F.R. part 430.
The Authority also rejected the argument that the provision was contrary to section 7114(a)(1) of the Statute. Section 7114(a)(1) of the Statute provides, in relevant part, that an exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership. The Authority noted that it has found proposals distinguishing between unit employees on the basis of union membership to be outside the duty to bargain, to be contrary to law, under section 7117(a)(1) because they are inconsistent with section 7114(a)(1).
Lastly, the Authority addressed the Agency's claim that the provision violated section 7116(a)(1) and (2) of the Statute. The Authority concluded that this claim was not properly before the Authority in this negotiability proceeding. Under section 7105(a)(2)(E) of the Statute, the Authority is vested with the responsibility to resolves issues relating to the duty to bargain in good faith under section 7117(c). The Authority explained that while the Authority is also entrusted with the responsibility to resolve unfair labor practice complaints under the Statute, the Authority does so after the General Counsel has fulfilled its statutory role in investigating and prosecuting claimed unfair labor practices. Here, the Authority noted that it found no support for addressing the merits of an unfair labor practice claim in a negotiability proceeding.