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13:0325(49)NG
The decision of the Authority follows:
13 FLRA No. 49
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
U.S. NUCLEAR REGULATORY COMMISSION
Agency
Case No. O-NG-478
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). The issue presented
is the negotiability of the following two proposals:
Union Proposal 1
"Non-critical Elements" means the negotiable component(s) of an
employee's job that are of sufficient importance to be part of the
employee's assigned duties and responsibilities, as well as to be
described on the employee's position description, but are
unrelated to job retention, yet may influence determinations
concerning awarding of within grade increases.
Union Proposal 2
"Performance Standards (Non-critical Elements)" are the
expressed measure of the level of achievement negotiated between
the NRC and the Union for the non-critical elements and associated
duties and responsibilities of a position or group of positions.
They may include, but are not limited to, negotiated elements of
quantity, quality and timeliness for a non-critical element.
Question Before the Authority
The question presented is whether, as alleged by the Agency, the
Union's proposals are inconsistent with management's rights to direct
employees in the agency and/or to assign work under, respectively,
section 7106(a)(2)(A) and (B) of the Statute.
Opinion
Conclusion and Order: The Union's proposals are inconsistent with the
statutory rights to direct employees and assign work. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
IS ORDERED that the Union's petition for review as to both proposals be,
and it hereby is, dismissed. Reasons: Union Proposal 1 would define
and require negotiation of the "non-critical" job elements of bargaining
unit positions. /1/ A "critical" job element is defined by Office of
Personnel Management (OPM) regulations as a component of an employee's
job which is of such importance that performance below the minimum
standard requires remedial action and the denial of a within-grade
salary increase. 5 CFR 430.202(e). While those regulations do not
expressly define the term "non-critical" job elements, it is implicit in
the cited definition of the term "critical element" that a non-critical
element is a job component of sufficient importance to be evaluated but
not so significant that the unacceptable performance of it requires
remedial action.
The Authority has held that the designation by management of a
critical element is an exercise of its statutory rights to direct
employees and assign work. 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, 691 F.2d 553 (D.C. Cir. 1982). In so
holding, the Authority concluded that the identification of critical
elements is one of the ways by which management supervises and
determines the duties to be assigned to employees, and determines the
priorities for the accomplishment of an agency's work. Similarly, the
identification of non-critical elements also establishes job
requirements by communicating to employees what work they will be
required to perform and that their performance thereof will be
evaluated. The fact that an employee's unacceptable performance in such
a job element does not necessarily result in remedial action does not
mean that the element is not a duty of the job. Thus, the
identification of any job element, whether critical or otherwise,
constitutes an assignment of duties within the meaning of the right to
assign work. /2/ In addition, the determination of the relative
importance of job elements sets priorities for the accomplishment of the
agency's work and, therefore, constitutes an exercise of its right to
direct employees. /3/ Accordingly, the identification of non-critical
job elements through negotiation, as the proposal would require, is not
a matter within the duty to bargain.
Union Proposal 2 would require bargaining over the performance
standards for non-critical elements. As noted previously, /4/ the Union
intends to require bargaining over all performance standards above the
performance level required for job retention. /5/ In Bureau of the
Public Debt, the Authority concluded that under 5 U.S.C. 4302 and
implementing regulations, a performance standard determines the level of
work performance in terms of, among other things, quality, quantity, or
timeliness, which is acceptable for certain purposes such as job
retention. It therefore held a proposal which would have established a
particular performance standard for job retention to be inconsistent
with management's rights to assign work and direct employees. Although
the proposal in that case concerned only a performance standard for job
retention, the reasoning employed by the Authority is equally applicable
in the circumstances of the present case.
An agency is not limited to merely prescribing the minimum level of
performance which will be required from an employee for job retention.
Rather, the results of employee performance appraisals are to be used
for multiple purposes, i.e., as the basis for rewarding and promoting
employees, reducing them in grade and retaining or removing them. In
this regard, Congress explicitly stated its intention that appraisals of
performance for all purposes be made within a single, interrelated
system. /6/ Thus, the rights to assign work and direct employees extend
to establishing job requirements, e.g., performance standards, for
various levels of achievement, which management will use to encourage
and reward successful performance as well as to discourage performance
which is unacceptable. That is, an integral aspect of those management
rights is prescribing the standards for each performance level within
the agency's performance appraisal system. The Union's proposal herein,
however, would require negotiation of performance standards for each
level of performance above the level for job retention. Consequently,
it would directly interfere with management's rights to assign work and
direct employees and is not within the duty to bargain. /7/ Issued,
Washington, D.C., October 6, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union interprets its proposal broadly to include within the
definition of a "non-critical element" the performance of a "critical
element" above the achievement level required for job retention. This
interpretation reflects a misapprehension as to the meaning of the term
"critical element." A critical element is defined by Government-wide
regulations in terms of job components, i.e., what work an employee must
perform. Thus, a critical element consists of job tasks rather than the
degree of proficiency of an employee's performance. See National
Treasury Employees Union and Department of the Treasury, Bureau of the
Public Debt, 3 FLRA 769, 777-78 (1980), affirmed sub nom. National
Treasury Employees Union v. Federal Lab or Relations Authority, 691 F.2d
553, 556-57, 564 (D.C. Cir. 1982).
/2/ See 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, 691 F.2d 553 (D.C. Cir. 1980).
/3/ Id.
/4/ See n. 1, supra.
/5/ Union Reply Brief at 2-3.
/6/ S. Rep. No. 95-969, 95th Cong., 2d Sess. 40 (1978). See also
Remarks of Senator Javits at 124 Cong.Rec. 27550 (1978); Remarks of
Senator Sasser at 124 Cong.Rec. 27549 (1978); and Remarks of Senator
Ribicoff at 124 Cong.Rec. 27535 (1978).
/7/ The Union has argued that its proposal is negotiable since, in
its view, it would not prevent the Agency from "acting at all" to impose
sanctions upon an employee who performs unacceptably. This argument is
inapposite since the proposal directly interferes with the substantive
rights of management to assign work and direct employees where as the
"acting at all" test governs matters which are procedural in nature.
See American Federation of Government Employees, AFL-CIO, Local 1999 and
Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
Jersey, 2 FLRA 152 (1979), enforced sub nom. Department of Defense v.
National Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981).