[ v13 p697 ]
13:0697(112)NG
The decision of the Authority follows:
13 FLRA No. 112
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3028
Union
and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, PUBLIC
HEALTH SERVICE, ALASKA
AREA NATIVE HEALTH SERVICE
Agency
Case No. O-NG-586
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 four Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Preliminary Matters
The Union claims that the Agency's statement of position was untimely
filed and requests that the Authority not consider the matters raised
therein. Contrary to the Union's claim, the Agency timely filed its
statement of position under section 2424.6 and 2429.22 of the
Authority's Rules and Regulations. Hence, the Union's request must be
denied.
The Agency, for its part, moves that the Authority dismiss the
Union's petition for review, claiming that the petitioner, the national
office of the Union, is not the exclusive representative which is a
party to the negotiations and therefore is without status to file the
instant petition under section 2424.2 of the Authority's Rules and
Regulations. The Agency's contention is without merit. Neither the
Rules and Regulations nor the Statute precludes the local union from
designating a representative to file an appeal on its behalf. On the
contrary, that is a matter within the purview of the Union, just as the
designation of the Agency's representative before the Authority is a
matter within the purview of the Agency. Therefore, the Agency's motion
to dismiss the Union's petition on this ground is denied.
The Agency further moves for dismissal of Proposal 1 and 4 claiming
that they are not properly before the Authority because the parties
agreed to alternative language, which became Section 9(b) of Article 14
of their agreement. Although the Union does not dispute that the
parties have agreed to the language cited by the Agency, it claims
without specific contradiction by the Agency that Proposals 1 and 4 are
properly before the Authority for review because the parties also agreed
to a "reopener" which would become applicable if the Authority finds
these proposals to be negotiable. /1/ In this connection, the record is
that the parties' agreement (Section 13 of Article 14) provides that the
contract will be reopened for negotiations on those issues declared
nonnegotiable by the Agency which the Authority, upon review, finds
negotiable. /2/ Finally, the Agency does not contradict the Union's
statement that it filed this petition as permitted by section 2424.3 of
the Authority's Rules and Regulations after the Agency did not respond
to the Union's written request for an allegation of nonnegotiability.
In agreement with the Union, the Authority finds that the Agency, by
its failure to respond to the Union's request for an allegation,
constructively declared Proposals 1 and 4 to be nonnegotiable thereby
giving rise to a right of appeal to the Authority by the Union.
Furthermore, even though the parties reached agreement on alternative
language in Section 9(b), such language does not render Proposals 1 and
4 herein moot in view of the "reopener" provision to which the parties
also agreed. Accordingly, the Agency's motion to dismiss the Union's
petition as to Proposals 1 and 4 is denied.
Union Proposal 1
Section 4. Appraisal Rating
A. Employees' performance rating will be a result of
application of standards of performance to the employee's
performance on critical and non-critical elements of the
employees' position. The employee will be rated only on these
elements.
Union Proposal 1 simply requires the Agency to give notice to
employees as to which elements of their jobs will be subject to
performance rating by the Agency and, of those elements, which ones the
Agency deems to be "critical /3/ or "noncritical." The proposal itself,
however, does not identify any particular job elements; establish any
performance standards for any job elements; or require that any
elements of any job be deemed to be "noncritical."
The Agency is required by 5 U.S.C. 4302 and implementing regulations
to develop a performance appraisal system which provides for
establishment of performance standards and identification of critical
elements and further to communicate the standards and critical elements
to employees and to establish methods and procedures to appraise
performance against established standards. In essence then the
proposal's effect is to require that the Agency comply with law. Since
it does not interfere with the Agency's discretion to identify job
elements, to designate them either as "critical" or "noncritical" or to
establish performance standards for employees' positions, the proposal
is not inconsistent with management's rights to assign work and direct
employees under section 7106(a)(2) of the Statute. 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. 1982); National Treasury Employees Union and U.S. Nuclear
Regulatory Commission, 13 FLRA No. 49(1983). Thus, since it is not
apparent that the proposal is otherwise inconsistent with Federal law or
Government-wide rule or regulation, it is within the duty to bargain.
/4/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain on Union Proposal 1. /5/
UNION PROPOSAL 2
The rating of elements will include designation of one of three
ratings applied to each element identified on the rating form.
Upon completion of the appraisal of each element, an overall
rating of total performance will be designated using one of four
ratings.
(1) Rating of individual elements. The range of ratings for
each individual element shall be:
(a) Exceeds the standard
(b) Meets the standard
(c) Fails to meet the standard
Ratings other than "meet the standard" must be documented in
writing and placed in the employee's personnel file.
Union Proposal 3
(2) Overall Rating
The range of rating for overall performance shall be one of the
four ratings defined below. The overall rating shall be arrived
at by considering the total performance of the employee by using
only the rating of the elements as prescribed in Section 4B(1)
above.
The ratings are:
(a) Outstanding
(b) Satisfactory
(c) Marginal
(d) Unacceptable
A rating other than (b) satisfactory shall be documented in
writing and made part of the employee's personnel file. Each
employee will be given a copy of the rating and any written
documentation. Union Proposals 2 and 3 would establish the number
of
rating levels for the appraisal of an employee's performance in each job
element and for a summary appraisal of overall performance. In these
respects, Union Proposals 2 and 3 are to the same effect as the proposal
before the Authority in American Federation of State, County and
Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice,
13 FLRA No. 96(1984), which was determined to be inconsistent with
management's rights to direct employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute. Thus, for the reasons set forth
in U.S. Department of Justice, Proposals 2 and 3 are inconsistent with
section 7106(a)(2)(A) and (B) of the Statute and outside the duty to
bargain. /6/
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 2 and 3 be, and it hereby is, dismissed.
Union Proposal 4
C. Employees will be rated annually. The rating will be
complete within five (5) working days of the anniversary date.
In American Federation of Government Employees, AFL-CIO, Local 1968
and Department of Transportation, Saint Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA No. 14 (1981), affirmed as to
other matters sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir.
1982), the Authority determined that a proposal to the extent it
prescribed periodic appraisal of employees on an annual basis was
consistent with law and Government-wide rules or regulations and,
therefore, was within the duty to bargain (Proposal 2). See also
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
No. 34(1981) (Proposal 3). Therefore, for the reasons set forth in
Saint Lawrence Seaway Development Corporation, the first sentence of the
proposal requiring annual performance appraisals is within the duty to
bargain.
The second sentence of the proposal requires the Agency to prepare an
employee's performance appraisal within five working days of the annual
anniversary date. Thus, this portion of the proposal similarly would
establish a procedural time limit for the appraisal of an employee's
performance. Since there is nothing in the record to indicate that this
portion of the proposal which establishes such a time limit to complete
the annual performance appraisal is inconsistent with law or regulation,
it is within the duty to bargain under section 7106(b)(2) of the
Statute. /7/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain on Union Proposal 4. /8/
Issued, Washington, D.C., January 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Union Reply Brief at 1-2.
/2/ The Agency does, however, make conflicting statements in the
record as to whether it has declared Proposals 1 and 4 to be
nonnegotiable so as to come within the purview of Section 13.
/3/ See 5 CFR 430.202(e).
/4/ See American Federation of Government Employees, AFL-CIO, Local
3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA No. 34(1981), in which the Authority determined that
Proposal 3 was negotiable to the extent it required that the annual
performance appraisal result from the application of performance
standards to each element of an employee's job, including critical
elements.
/5/ In deciding that Union Proposal 1 is within the duty to bargain,
the Authority makes no judgment as to its merits.
/6/ Since the Authority determines that Union Proposals 2 and 3 are
outside the duty to bargain under section 7106(a)(2), it is unnecessary
to consider other Agency contentions as to the nonnegotiability of the
proposals.
/7/ See American Federation of Government Employees, AFL-CIO, Local
32 and Office of Personnel Management, Washington, D.C., 8 FLRA No.
97(1982) (Union Proposal V); National Federation of Federal Employees,
Local 1497 and Headquarters, Lowry Technical Training Center (ATC),
Lowry Air Force Base, Colorado, 11 FLRA No. 92(1983) (Union Proposal 3).
/8/ In deciding that the proposal is within the duty to bargain, the
Authority makes no judgment as to its merits.