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13:0329(50)NG
The decision of the Authority follows:
13 FLRA No. 50
NATIONAL TREASURY EMPLOYEES UNION
Union
and
INTERNAL REVENUE SERVICE
Agency
Case No. O-NG-508
DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
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. The text of the
proposals is set forth in the Appendix. Upon careful consideration of
the entire record, including the parties' contentions, the Authority
makes the following determinations.
The record indicates that the employees covered by Union Proposal 1
and Section 4B(2)(C) of Union Proposal 2 are subject to a performance
appraisal system established by management wherein each critical element
involves various sub-elements, or "aspects" in the language of the
proposals, for which there are standards of acceptable performance. In
appraising these employees, the results of the performance evaluations
achieved for each aspect of an element are combined and a standard
applied to those results which determines the level of performance for
the entire element. In essence, Union Proposal 1 and Section 4B(2)(C)
of Union Proposal 2 would establish the content of the standard for
determining a given level of performance in a critical element in order
for that employee to achieve a certain rating on that element.
As to the employees referred to in Section 4B(2)(A) and (B) of Union
Proposal 2, according to the record, these are employees who perform
routine tasks which are capable of quantifiable measurement. The record
indicates that these employees are evaluated under a performance
appraisal system which is formulated similarly to that applied to
employees covered by Proposal 1 and Section 4B(2)(C) of Proposal 2.
That is, under this system, various aspects of a given critical element
of such an employee's work, referred to as "program/function," are
appraised according to fixed standards for acceptable performance which
are established by management. Subsequently, the results achieved by
application of the fixed standards to the specific "program/functions"
of a given critical element would be combined according to the formula
set forth in Section 4B(2)(B) of Union Proposal 2 in order to determine
the level of performance for that element as established in Section
4B(2)(A). Thus, the provisions of Union Proposal 2 relating to these
employees would establish the content of the standard for determining a
given level of performance in a critical element in order for an
employee to warrant a specific rating in that element.
In thus prescribing the content of the standards for determining the
attainment of a particular level of performance, Union Proposals 1 and 2
herein are substantively identical to Union Proposal 2 at issue in
National Treasury Employees Union and U.S. Nuclear Regulatory
Commission, 13 FLRA No. 49 (1983). In that case, the Authority held
that the proposal at issue, which established performance standards for
various levels of achievement, directly interfered with management's
rights to direct employees and assign work under section 7106(a)(2)(A)
and (B) of the Statute. /2/ In this regard, the Authority determined,
relying on its decision 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, 691 F.2d 553 (D.C. Cir. 1982), that the
rights to assign work and direct employees extend to the establishment
of job requirements for various levels of achievement, which management
will use to encourage and reward successful performance as well as to
discourage performance which is unacceptable. Thus, as the Authority
stated, an integral part of the exercise of those management rights is
"prescribing the standards for each performance level within (an)
agency's performance appraisal system." Therefore, for the reasons more
fully set forth in U.S. Nuclear Regulatory Commission, Union Proposals 1
and 2 herein directly interfere with management's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute and, thus, are outside the duty to bargain.
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
Union Proposals 1 and 2 be, and it hereby is, dismissed. Issued,
Washington, D.C., October 14, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
Union Proposal 1 /3/
Section 4 - Application of Elements/Standards
. . . .
B.(1) Employees will receive evaluations of each element/standard
whenever required by the current NORD agreement, e.g., Art. 7, Art. 25.
These evaluations will cover 12 month periods and may be revalidated
consistent with the current agreement.
(2) On each Element/Standard employees will receive a score of one
(1) through (4) which are defined as follows:
(1) Unacceptable - less than fully acceptable.
(2) Fully Acceptable - meets the applicable performance
standards of the element.
(3) Exceeds Acceptable - meets the applicable performance
standards of the elements and exceeds 30% more of the aspects.
(4) Far Exceeds Acceptable - meets the applicable performance
standards of the elements and exceeds 60% more of the aspects.
Achievement of fully acceptable on the annual rating will meet the
performance requirements for within-grade increases and probationary
period certifications. (Only the underlined portion of the proposal
is in dispute.)
Union Proposal 2 /4/
Section 4 - Application of Elements/Standards
. . . .
Sec. 4B(2)(A) On each element/standard employees who receive measured
evaluations will receive a score of one (1) through (5) which are
defined as follows:
(1) Unacceptable - less than fully acceptable.
(2) Fully Acceptable - meets the stated, fixed performance
standards of the element.
(3) Exceeds Acceptable - meets the stated, fixed performance
standards of the element and exceeds them in the overall
effectiveness category by 5%.
(4) Far Exceeds Acceptable - meets the stated, fixed
performance standards of the element and exceeds them in the
overall effectiveness category by 10%.
(5) Greatly Exceeds Acceptable - meets the stated, fixed
performance standards of the element and exceeds them in the
overall effectiveness category by 15%.
Sec. 4B(2)(B) The fixed standard (Overall Effectiveness Category) is the
average of all program function scores adjusted for time-weight factors
and other current contract considerations. The program functions score
is the number of units accomplished in comparison to the stated, fixed
standard as expressed in a percentage. Sec. 4B(2)(C) On each
element/standard employees who receive unmeasured evaluations will
receive a score of one (1) through (5) which are defined as follows:
(1) Unacceptable - less than fully acceptable.
(2) Fully Acceptable - meets the applicable performance
standard of the element.
(3) Exceeds Acceptable - meets the applicable performance
standard of the element and exceeds 20% of the aspects.
(4) Far Exceeds Acceptable - meets the applicable performance
standard of the element and exceeds 40% of the aspects.
(5) Greatly Exceeds Acceptable - meets the applicable
performance standards of the element and exceeds 60% of the
aspects.
--------------- FOOTNOTES$ ---------------
/1/ In a previous action in this case, the Authority denied the
Agency's motion to dismiss the Union's petition for review on procedural
grounds. National Treasury Employees Union and Internal Revenue
Service, 7 FLRA No. 3 (1981).
/2/ Section 7106(a)(2)(A) and (B) of the Statute provide, 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(.)
/3/ According to the record in this case, Union Proposal 1 pertains
to employees in the National Office, Region, and District bargaining
unit.
/4/ According to the record in this case, Union Proposal 2 pertains
to employees in the Service Center bargaining unit.