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56 FLRA No. 36
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-100
(Union)
and
U.S. DEPARTMENT OF THE NAVY
NAVAL SUBMARINE SUPPORT FACILITY
GROTON, CONNECTICUT
(Agency)
0-NG-2467
_____
DECISION AND ORDER ON
NEGOTIABILITY ISSUES
April 27, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). [n1] The petition for review contains 5 proposals. [n2] The Agency filed a statement of position and the Union did not file a response. The Agency challenges only the underlined portions of the proposals set out below.
For the reasons that follow, we find that Proposals 8, 12 and 21 are outside the duty to bargain, and we dismiss the petition for review as to those proposals. We find that Proposals 4 and 5 are within the duty to bargain and order the Agency to bargain as to those proposals.
II. Proposal 4
Employees will be notified in writing prior to the beginning of the rating period of the elements in their rating and shall be given an explanation of the requirements for each level of achievement for each rating element.
A. Positions of the Parties
1. Agency
The Agency argues that depending on the meaning given to the phrase "each level of achievement" in the last clause of the proposal, the proposal should be found nonnegotiable. The Agency claims that if the intent of the proposal is to mandate multiple rating levels as opposed to the single "Pass" level in the Employer's performance appraisal plan, then it is an attempt to limit or determine the content of performance standards and is therefore nonnegotiable based on well-established Authority case law. As support for this proposition the Agency cites to American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA 697 (1984), and National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456 (1990) (Proposal 5).
2. Union
The Union did not file a response to the Agency statement of position. The intent of the Union can be discerned from its petition for review of negotiability issues. The statement in that petition in reference to Proposal 4 is:
The Agency has declared [P]roposal 4 non-negotiable. If the Agency did not change the original proposal sent to them perhaps the Agency would find the proposal negotiable. The FLRA has found the proposal to be negotiable - AFGE, National Council of VA Locals and VA, 29 FLRA 515, 537, 563 (1987) [P]roposal 8, section 3 (please see attached proposal).
B. Analysis and Conclusions
1. Meaning of the Proposal
In interpreting a proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation of the proposal comports with the proposal's plain wording, the Authority adopts that [ v56 p269 ] explanation for purposes of construing what the proposal means and, based on that meaning, decides whether the proposal is within the duty to bargain. See, e.g., American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA 228, 233-34 (1999).
The Union has cited to one case to aid in determining the meaning and intent of the proposal. It equates its proposal to one found negotiable in American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515, 536-37 (1987) (Proposal 8) (VA). [n3] The proposal in VA also directed that the requirements for each level of achievement be fully explained to each employee at the beginning of the rating year. Id. The Authority found that the proposal only required the Agency to provide employees with information regarding performance standards and ratings, and did not mandate multiple rating levels. Id. Here the proposal, on its face, also does not require the Agency to use multiple rating levels within each rating element. All that the proposal requires is an explanation of the rating levels that may be used, whether that be one or several levels. Accordingly, the proposal does not mandate multiple rating levels, and it will be so interpreted for purposes of determining whether it is within the Agency's duty to bargain. [n4]
2. The Proposal Is Within the Duty to Bargain
The Agency contends that the proposal is nonnegotiable if the intent of the phrase "each level of achievement" in the proposal is to mandate the use of multiple rating levels. However, the proposal as interpreted herein does not require the use of multiple rating levels. It only requires that the Agency provide the employees with a written explanation of any and all rating elements and levels of achievement they will be evaluated on prior to the beginning of the rating period, no matter how many rating levels there are. The Authority has found negotiable proposals that merely require the dissemination of information to employees regarding performance standards and ratings. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47_FLRA 10 (1993) (POPA), petition for review denied as to other matters sub nom. Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994); American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 222-223 (1981) (FDIC). Therefore this proposal is within the duty to bargain.
III. Proposal 5
Employees will only be rated based on standards disclosed as part of a written appraisal plan at the beginning of the rating year or at the time of a subject change, disclosure to include each critical and noncritical element, each standard used to evaluate the employee, an explanation of how the employee's performance in each element will be evaluated: the rating official to discuss with the employee the proposed rating and its basis, with the rating to be based on the employee's performance during the rating period evaluated against the standards set in the performance plan at the beginning of the rating period.
A. Position of the Parties
1. Agency
The Agency argues that if the intent of the first disputed phrase is to require the use of noncritical elements, then the proposal is nonnegotiable. The Agency also argues that the last disputed phrase causes the proposal to be nonnegotiable because, in the absence of any stated intent by the Union, the proposal restricts management's ability to make work changes after the beginning of the rating period and to modify the appraisal plan in response thereto so as to appraise employees on such changes during the rating period. In support of this the Agency cites to American Federation of Government Employees, Local 2014 and Social Security Administration, Region IV, 21 FLRA 991 (1986).
2. Union
The intent of the Union can be discerned from its petition for review. The Union's statement in reference to Proposal 5 is, "[t]he Agency has declared [P]roposal 5 non-negotiable. The Union has again found a proposal the FLRA has previously ruled negotiable - 47 FLRA 10 (1993) [POPA], [P]rovisions 28 and 35 (Please see attached proposal)." Union Petition for Review at 1. [ v56 p270 ]
B. Analysis and Conclusions
1. Meaning of the Proposal
As noted above, in interpreting a proposal, the Authority looks to its plain wording and any union statement of intent. The Union submitted no statement of intent but cited to POPA to help explain the disputed phrases. However, POPA did not address whether the disputed provision mandated the use of noncritical elements or precluded an agency from making changes to an appraisal plan during the rating period. POPA, 47 FLRA at 65-66. Therefore, we must determine whether or not the disputed phrases are within the duty to bargain based only on their plain wording.
On its face, the first disputed phrase requires the Agency to disclose all the standards that an employee will be rated on, including the disclosure of each critical and noncritical element. However, the first disputed phrase in Proposal 5 does not mandate the use of critical and noncritical elements. Rather, it requires only that the Agency disclose the rating elements, regardless of whether they are critical or noncritical, that it chooses to use. Therefore, the first disputed phrase will be interpreted as such for the purpose of determining the negotiability of Proposal 5.
As to the meaning of the second disputed phrase, we note that the first sentence of Proposal 5 acknowledges the Agency's right to change the written appraisal plan after the beginning of the rating year, provided such changes are disclosed to the employee. When the second disputed phrase of the proposal is read in conjunction with the first sentence, we construe the second disputed phrase to allow management to make changes in work assignments (and hence performance standards) during the rating period. Therefore, for the purposes of determining the negotiability of Proposal 5, the second disputed phrase will be interpreted as such.
2. The Proposal is Within the Duty to Bargain
Consistent with the interpretation above, the first disputed phrase of the proposal only requires the disclosure of all rating elements, critical or non-critical, that are to be used. Accordingly, that phrase only requires that information be given about those elements actually chosen by the Agency. As noted above, Authority precedent has found negotiable proposals that require the dissemination of information as to the elements on which employees will be rated to be negotiable. See POPA, 47 FLRA at 65 and FDIC, 7 FLRA at 222-23.
The second disputed phrase of the proposal also does not affect the Agency rights as asserted. As interpreted herein, the proposal does not preclude the Agency from changing performance standards during the rating period. See POPA, 47 FLRA at 64-65 (Union conceded that similar language permitted the agency to change performance standards during the rating period). For the same reason, we find that the proposal is within the duty to bargain.
IV. Proposal 12
In the proposed revision 7 to HRO Groton Manual page Performance - 5. Remove the definition of "additional element" paragraph one and any other occurrences of the term "additional element" in this document as such elements by definition are not used in assigning a summary level.
A. Position of the Parties
1. Agency
The Agency claims that, by deleting any reference in its personnel manual to the use of additional elements, this proposal would prohibit the Agency's use of additional elements as established in the Navy's Pass/Fail appraisal system and as authorized in 5 C.F.R. 430.203. It argues that the proposal interferes with the identification of any job element, whether critical or otherwise, which constitutes an assignment of duties within the meaning of the right to assign work. The Agency also argues that the 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, citing to National Treasury Employees Union and U.S. Nuclear Regulatory Commission, 13 FLRA 325 (1983).
2. Union
The petition for review contains the following statement regarding Proposal 12:
The Agency has declared proposal 12 non-negotiable. The Navy has stated it does not use non-critical elements. The Agency can't define additional elements. If an `additional element' is a non-critical element the Navy does not use them, therefore it can't possibly identify anything if it does not exist and can't possibly fall under 7106.
B. Analysis and Conclusions
1. Meaning of the Proposal
As in the previous proposals, we will look at the plain wording of the proposal and any statement of intent. However, the Union did not provide any explanation [ v56 p271 ] or cite to any Authority precedent to aid in determining the Union's intent. The disputed phrase in the proposal requires the deletion of any reference to "additional elements" throughout the HRO Groton Manual. The Agency asserts that this proposal would prevent the Agency from identifying and using "additional elements" in structuring its appraisal system in the future even if the Agency is not currently using any additional elements. As the Union did not respond to this interpretation, we conclude that the Union does not dispute it. Accordingly, as that interpretation otherwise comports with the proposal's plain wording, we adopt that meaning for the purpose of determining whether or not the proposal is within the duty to bargain. See American Federation of State, County & Municipal Employees, Local 2910 and Library of Congress, 53 FLRA 1334, 1340 (1998) (Library of Congress)
2. The Proposal is Not Within the Duty to Bargain
Management's identification of critical job elements and the establishment of performance standards constitutes the exercise of the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, e.g., National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Virginia, 55 FLRA 789, 795 (1999) and Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1158 (1988). Similarly, as the Authority noted in International Federation of Professional and Technical Engineers, Local 25 and Department of the Navy, Mare Island Naval Shipyard, 13_FLRA 433, 437 (1983), "the identification of job elements, if any, which are not critical[,] is also an exercise of those rights."
Applying the foregoing precedent, by preventing the Agency from identifying and using additional elements, the proposal affects the Agency's exercise of its right to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Id. Because the Union has not asserted that this proposal constitutes an exception to these rights pursuant to section 7106(b), the proposal is not within the duty to bargain. See, e.g., National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 55 FLRA 1081, 1085 (1999) (Fish and Wildlife) and American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 612 (1997) (Army Aviation Center).
V. Proposal 8
Performance Improvement Plans will be a minimum of (90) ninety days. The employees shall have a conference every (30) thirty days during the (90) ninety day improvement period to address employee performance. Performance to be evaluated by another supervisor. A new appraisal to be issued to an employee who demonstrates a satisfactory level of performance during the rating period.
A. Positions of the Parties
1. Agency
The Agency argues that the portion of the Union's proposal at issue attempts to prohibit certain management personnel from performing supervisory duties. The Agency asserts that this interferes with management's right to assign work. In support of this it cites National Treasury Employees Union and Department of the Treasury, 21 FLRA 1051 (1986) (NTEU) (Provisions 2, 3, 4 and 5).
2. Union
In its petition for review the Union states that "[p]erformance [is] to be evaluated by another supervisor. The Union disagrees with the Agency. A review by another supervisor does not interfere with Agency operations." Petition for Review at 1.
B. Analysis and Conclusions
1. Meaning of the Proposal
As in the previous proposals, we will look at the plain wording of the proposal and any statement of intent. We note that the Union provided no explanation and cited to no Authority precedent to aid in determining the Union's intent. The Agency asserts that the proposal requires a supervisor, other than the supervisor placing the employee on a performance improvement plan, to evaluate the employee's performance. As the Union did not respond to this interpretation, we conclude that the Union does not dispute it. Accordingly, as that interpretation otherwise comports with the plain wording of the proposal, we adopt that meaning for the purpose of determining whether or not the proposal is within the duty to bargain. Library of Congress, 53 FLRA at 1340. [ v56 p272 ]
2. The Proposal is Not Within the Duty to Bargain
Proposals or provisions that concern the assignment of specific duties to particular individuals, or preclude the assignment of specific duties to particular individuals, directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See POPA, 47 FLRA at 23 and American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1613-14 (1993) (Proposal 13) (placing limitations on duties to be assigned to a position affects the right to assign work).
Applying the foregoing precedent, by not allowing an employee's supervisor to perform certain specific duties, the proposal affects the Agency's exercise of its right to assign work under section 7106(a)(2)(B) of the Statute. Id. Because the Union has not asserted that this proposal constitutes an exception to these rights pursuant to section 7106(b) the proposal is not within the duty to bargain. Fish and Wildlife, 55 FLRA at 1085 and Army Aviation Center, 53 FLRA at 612.
VI. Proposal 21
The first level Supervisor must be an active participant in the rating period, making all training, instruction, direction and consultation available to the employee in order to achieve critical elements.
A. Positions of the Parties
1. Agency
The Agency argues that the Union's proposal requires that a specific supervisor will perform work and it also identifies the work to be performed. The Agency states that it relies on the same argument it made in connection with Proposal 8 and also asserts that the proposal interferes with its right to determine the personnel by which Agency operations will be conducted. In support of this it cites NTEU, 21 FLRA 1051. [n5]
2. Union
In its petition for review the Union states only that "[t]he Agency has declared [P]roposal 21 non-negotiable. `The first level supervisor must be an active participant.' The Union does not dictate the particular supervisor the Agency may use." Petition for Review at 1.
B. Analysis and Conclusions
1. Meaning of the Proposal
As in the previous proposals, we will look at the plain wording of the proposal and any statement of intent. The Agency asserts that the proposal requires that a specific supervisor perform work and that it also requires that supervisor do the specific things identified in the proposal. The Union, on the other hand, states that "the Union does not dictate the particular supervisor the Agency may use." Petition for Review at 1. We construe that explanation to mean that, under this proposal the Agency retains the right to designate the supervisor who is to act as an employee's first-level supervisor. Because that explanation comports with the plain wording of the proposal, we conclude that the proposal would require the first level supervisor (as designated by the Agency) to perform certain specific duties and adopt that meaning for the purpose of determining whether or not the proposal is within the duty to bargain.
2. The Proposal is Not Within the Duty to Bargain
Proposals or provisions that concern the assignment of specific duties to particular individuals or positions directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 55 FLRA 25, 26-27 (1998) and National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 35 FLRA 642, 643-44 (1990) (requiring the final decision on employee performance standards and elements to be made by the employee's supervisor directly interferes with the right to assign work).
Applying the foregoing precedent, by requiring that certain specific duties be performed by the first level supervisor, the proposal affects the Agency's exercise of its right to assign work under section 7106(a)(2)(B) of the Statute. Id. Because the Union has not asserted that this proposal constitutes an exception to this right pursuant to section 7106(b), the [ v56 p273 ] proposal is not within the duty to bargain. Fish and Wildlife, 55 FLRA at 1085 and Army Aviation Center, 53 FLRA at 612.
VII. Order
The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on Proposals 4 and 5. [n6] The petition for review as to Proposals 8, 12 and 21 is dismissed.
APPENDIX
POPA; Provisions 28 and 35
Provision 28
Section 13- Performance Appraisals- Disclosure
13(A)- No employee shall be rated based upon a performance standard that was not disclosed to him as part of a written performance appraisal plan either at the beginning of the rating year or at the time of substantial job change. The disclosure of the performance appraisal plan shall include:
1. Each critical and noncritical performance element for the position.
2. Each performance standard that will be used to evaluate employee.
3. An explanation of how the employee's performance in each performance element will be evaluated.
Provision 35
Section 15- Performance Appraisals- Rating
15(E)- The rating official will discuss with the employee the proposed performance rating and the basis for the proposed rating. The proposed rating must be based on the employee's performance during the rating period in regard to the standards set at the beginning of the period in the performance plan.
47 FLRA at 64-65
Footnote # 1 for 56 FLRA No. 036
The Authority's Regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.
Footnote # 2 for 56 FLRA No. 036
While the Union's petition states Proposal 15 is being challenged, the Union's comments reflect that it is arguing the negotiability of Proposal 8, and we have construed this petition to pertain to Proposal 8 and not Proposal 15.
Footnote # 3 for 56 FLRA No. 036
This is the correct full cite for the decision referred to by the Union in its petition for review.
Footnote # 4 for 56 FLRA No. 036
The meaning that the Authority adopts for these proposals, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of these proposals is at issue. See National Eduacation Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 (1996).
Footnote # 5 for 56 FLRA No. 036
NTEU addresses whether several proposals interfere with the right to assign work, but does not discuss the right to determine the personnel by which Agency operations will be conducted. Therefore, we construe the Agency's argument as asserting that the proposal interferes with its right to assign work.
Footnote # 6 for 56 FLRA No. 036
In finding the proposals to be within the duty to bargain, we make no judgment as to their merits.