[ v11 p271 ]
11:0271(58)NG
The decision of the Authority follows:
11 FLRA No. 58
NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTER 72
Union
and
INTERNAL REVENUE SERVICE,
AUSTIN SERVICE CENTER
Agency
Case No. O-NG-54
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
concerning the negotiability of two Union proposals.
Union Proposal 1
Attainment and maintenance by an employee of a cumulative
effectiveness of at least 80% of the current peer group rate is
prima facie evidence of satisfactory performance for the purpose
of making within-grade increase and grade retention decisions.
Question Before the Authority
The question is whether Union Proposal 1 is inconsistent with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute, as alleged by the Agency.
Opinion
Conclusion and Order: Union Proposal 1 is inconsistent with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. /1/ Accordingly, pursuant to
section 2424.10 of the Authority's Rules and Regulations (5 CFR
2424.10), IT IS ORDERED that the petition for review as to Union
Proposal 1 be, and it hereby is, dismissed. Reasons: Based on the
Union's stated intent, /2/ which is consistent with the language of the
proposal, Union Proposal 1 would establish the level of output which the
Agency must accept as satisfactory performance with respect to the
quantity of work produced when determining whether to retain unit
employees at their present grade level and to grant them a within-grade
increase. In thus prescribing what quantity of output will be
satisfactory, Union Proposal 1 is not materially distinguishable from
the proposal at issue in National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
(1980), affirmed sub nom. National Treasury Employees Union v. Federal
Labor Relations Authority, . . . F.2d . . . (D.C. Cir. 1982). In that
case, the Authority held that a proposal which established a
quantitative standard for job retention directly interfered with the
agency's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) by prescribing the level of output which the
agency could require of employees for such purposes. Thus, for the
reasons more fully stated in Bureau of the Public Debt, Union Proposal 1
is outside the Agency's duty to bargain under section 7106(a)(2)(A) and
(B) of the Statute.
The Authority reaches this conclusion notwithstanding the Union's
argument in the present case that, since the proposal makes
accomplishment of the standard only prima facie evidence of satisfactory
overall performance, it preserves the Agency's discretion regarding
retention and promotion decisions. As the Union itself concedes, /3/
however, the accomplishment of the proposed standard would be conclusive
as to the requirements for satisfactory quantitative output. Thus, the
proposal is nonnegotiable under Bureau of the Public Debt.
Union Proposal 2
Attainment and maintenance by an employee of a quantity rate of
85% cumulative effectiveness with respect to the next highest
grade level is prima facie evidence of good performance for the
purpose of making promotion decisions.
Question Before the Authority
The question is whether Union Proposal 2 is inconsistent with law,
i.e., 5 U.S.C. 4302 and section 7106(a)(2) of the Statute, as alleged by
the Agency.
Opinion
Conclusion and Order: Union Proposal 2 is consistent with law.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations (5 CFR 2424.10), IT IS ORDERED that the Agency shall upon
request (or as otherwise agreed to by the parties) bargain concerning
Union Proposal 2. /4/ Reasons: The record indicates that the disputed
proposal would apply only to employees in career ladder positions.
Among the factors which an agency may consider in evaluating an
employee's promotion potential in a career ladder is his or her ability
to meet the quantitative output requirements of the higher grade. See,
e.g., Federal Personnel Manual (FPM) Supplement 335-1, Appendix B,
Guidelines for Evaluating Employees for Promotion and Internal
Placement, section B-4.b.(2) and section B-8.b.(1). In this connection,
Union Proposal 2 would establish a criterion for evaluating an
employee's ability to perform higher-grade duties for use in making such
a promotion decision by providing that maintenance of an 85% cumulative
effectiveness rate as to quantity of higher graded work produced is
prima facie evidence of good performance for career ladder promotion
potential. /5/ Thus, under the proposal, insofar as an employee's
ability to meet the output requirements of the higher grade may be at
issue in connection with a decision to promote to that grade,
performance which meets the criterion would be sufficient to make an
employee eligible for promotion but would not compel the Agency to
promote the employee.
The Agency contends that the proposal would require the application
to employees of performance standards for higher grades in career ladder
positions. It claims, therefore, that the proposal is inconsistent with
5 U.S.C. 4302 which requires that only performance standards for the
position currently occupied may be applied to an employee. /6/ Contrary
to the Agency's contentions, section 4302 does not prohibit the
development of separate criteria for use in evaluating employees for
purposes of promotion. Indeed, the FPM specifically contemplates such
separate criteria and cautions agencies that performance appraisal under
chapter 43 of title 5 of the United States Code and evaluation of an
employee's promotion potential are related but distinct activities which
should be conducted separately. /7/ Thus, Union Proposal 2 is not
inconsistent with 5 U.S.C. 4302.
Further, the Agency contends that Union Proposal 2 violates
management's right to make selections for promotion under section
7106(a)(2)(C) of the Statute. /8/ This argument, however, assumes that
a decision to promote an employee to the next grade in a career ladder
position constitutes making a selection for appointment within the
meaning of section 7106(a)(2)(C). To the contrary, the Authority held
in American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 8 FLRA No. 97 (1982)
(Union Proposal III) that a career ladder promotion is merely a
"ministerial act" implementing a prior decision to select an employee
for appointment. Thus, section 7106(a)(2)(C) does not bar negotiation
on Union Proposal 2.
Finally, the Agency's claims that Union Proposal 2 violates
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute are not persuasive. The criterion
established in the proposal merely would serve as a guideline for
predicting employee performance at the higher grade level rather than as
a standard of productivity for the current level. /9/ Thus, it is
distinguishable from the proposal at issue in National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 769 (1980), which directly interfered with the right of the
Agency to determine the amount of work an employee will be required to
produce in his or her current position. Union Proposal 2 would have no
such limiting effect. Therefore, Union Proposal 2 would not directly
interfere with management's rights to direct employees or assign work.
Issued, Washington, D.C., February 3, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7106 of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b ) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
(A) to . . . direct . . . employees in the agency . . . ;
(B) to assign work(.)
/2/ The Union states that the proposal is "concerned with only one
facet of employee performance-- quantity of work produced-- and hence
must be examined strictly in terms of establishing production
expectations." Union Response to Agency Statement of Position at second
unnumbered page of text.
/3/ Union Response to Agency Statement of Position at third
unnumbered page of text.
/4/ In deciding that Union Proposal 2 is within the duty to bargain,
the Authority makes no judgment as to its merits.
/5/ In elaborating on the effect of its proposal, the Union states
that it is intended to provide a basis for, e.g., comparing an
employee's performance at his or her current grade level with the
performance of employees at the next higher grade, where the work is
"reasonably similar in both grade levels," so as to assess whether the
employee is qualified to perform the work of the higher grade. Union
Response at fourth unnumbered page of text. It is noted, in this
regard, that nothing in the proposal as explained by the Union would
require the assignment of higher graded work to employees. Cf. National
Treasury Employees Union and Department of the Treasury, U.S. Customs
Service, 9 FLRA No. 138 (1982) (wherein the Authority held a proposal
compelling assignment of higher graded work to be outside the duty to
bargain.)
/6/ 5 U.S.C. 4302 provides as follows:
Sec. 4302. Establishment of performance appraisal systems
(a) Each agency shall develop one or more performance appraisal
systems which--
(1) provide for periodic appraisals of job performance of
employees;
(2) encourage employee participation in establishing
performance standards; and
(3) use the results of performance appraisals as a basis for
training, rewarding, reassigning, promoting, reducing in grade,
retaining, and removing employees;
(b) Under regulations which the Office of Personnel Management shall
prescribe, each performance appraisal system shall provide for--
(1) establishing performance standards which will, to the
maximum extent feasible, permit the accurate evaluation of job
performance on the basis of objective criteria (which may include
the extent of courtesy demonstrated to the public) related to the
job in question for each employee or position under the system;
(2) as soon as practicable, but not later than October 1, 1981,
with respect to initial appraisal periods, and thereafter at the
beginning of each following appraisal period, communicating to
each employee the performance standards and the critical elements
of the employee's position;
(3) evaluating each employee during the appraisal period on
such standards;
(4) recognizing and rewarding employees whose performance so
warrants;
(5) assisting employees in improving unacceptable performance;
and
(6) reassigning, reducing in grade, or removing employees who
continue to have unacceptable performance but only after an
opportunity to demonstrate acceptable performance.
/7/ FPM, chapter 430, Appendix A, Guidance on Improving Performance
Appraisal, section A-6.b.(2) provides as follows:
A.6. Improving Appraisals of Performance
. . . .
(2) Appraisals for different purposes and some cautions on
multipurpose appraisals. The performance appraisal required by chapter
43 of title 5 United States Code is based on an appraisal of an
employee's performance in the current job. Performance appraisal for
merit promotion purposes, however, involves predicting an employee's
future performance of job duties, some of which may not be part of the
present job. Appraisals for different purposes may require different
kinds of information. Therefore, appraisals for different purposes
should be distinct from each other and prepared separately unless
appraisals require the same kinds of information or the system provides
sufficiently in-depth appraisals to achieve all the desired purposes.
If an agency does use a multipurpose appraisal system, it is important
for its system to provide a means of identifying and differentiating
among the performance elements which will be used as a basis for the
performance appraisal required by chapter 43, title 5, United States
Code, and the performance elements which are important for success in
higher level work, i.e., used for merit promotion purposes.
/8/ Section 7106(a)(2)(C) provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source(.)
/9/ See FPM, chapter 430, Appendix A, section A-6.b.(2), at note 7,
supra, wherein it is stated: "Performance appraisal for merit promotion
purposes . . . involves predicting an employee's future performance of
job duties, some of which may not be part of the present job."