[ v03 p784 ]
03:0784(120)NG
The decision of the Authority follows:
3 FLRA No. 120
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32
(Labor Organization)
and
OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C.
(Activity)
Case No. 0-NG-177-2
177-3
177-4
177-5
DECISION ON NEGOTIABILITY ISSUES
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.). /1/
UNION PROPOSALS 2 AND 3
SECTION. A PERFORMANCE STANDARD IS A STATEMENT OF THE EXPRESSED
LEVEL OF ACHIEVEMENT IN
TERMS OF THE QUALITY, QUANTITY, TIMELINESS, ETC., REQUIRED FOR THE
PERFORMANCE OF AN ELEMENT
OF AN EMPLOYEE'S JOB. (ALL OF THIS PROPOSAL IS ALLEGED TO BE OUTSIDE
THE DUTY TO BARGAIN.)
SECTION 5. ALL PERFORMANCE ELEMENTS IDENTIFIED FOR AN EMPLOYEE'S
POSITION, SPECIFYING
THOSE WHICH ARE CRITICAL, WILL BE COMMUNICATED TO THE EMPLOYEE IN
WRITING AT THE BEGINNING OF
EACH APPRAISAL PERIOD. A CRITICAL ELEMENT IS ONE WHICH IS SO
IMPORTANT THAT INADEQUATE
PERFORMANCE OF IT OUTWEIGHS ACCEPTABLE OR BETTER PERFORMANCE IN OTHER
ASPECTS OF THE JOB. (IN
SECTION 5, ONLY THE UNDERSCORED SENTENCE HAS BEEN ALLEGED TO BE
OUTSIDE THE DUTY TO BARGAIN.)
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSALS ARE, AS
ALLEGED BY THE AGENCY, INCONSISTENT WITH GOVERNMENT-WIDE RULES OR
REGULATIONS AND THEREFORE EXCLUDED FROM THE OBLIGATION TO BARGAIN UNDER
SECTION 7117(A)(1) OF THE STATUTE.
OPINION
CONCLUSION: THE PROPOSALS ARE NOT INCONSISTENT WITH GOVERNMENT-WIDE
RULES OR REGULATIONS AND, THEREFORE, ARE NOT EXCLUDED FROM THE
OBLIGATION TO BARGAIN BY REASONS OF SECTION 7117(A)(1) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, 5 CFR 2424.10, THE AGENCY'S ALLEGATION THAT THE DISPUTED
PROPOSALS ARE NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE. /2/
REASONS: THE AGENCY ALLEGES THE PROPOSALS ARE EXCLUDED FROM THE DUTY
TO BARGAIN BY SECTION 7117(A)(1) OF THE STATUTE, WHICH PROVIDES AS
FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE AGENCY CONTENDS REGULATIONS CONCERNING PERFORMANCE APPRAISAL ARE
GOVERNMENT-WIDE REGULATIONS, AND "AS SUCH, MANAGEMENT IS PROHIBITED FROM
NEGOTIATING A DEFINITION WHICH WOULD DIFFER FROM THAT PROMULGATED IN THE
GOVERNMENT-WIDE REGULATION." SPECIFICALLY, THE AGENCY CONTENDS SINCE THE
REGULATIONS AT 5 CFR 430.202(D) AND (E) DEFINE, RESPECTIVELY, THE TERMS
"PERFORMANCE STANDARD" AND "CRITICAL ELEMENT," ANY PROPOSED DEFINITIONS
WHICH DIFFER FROM THE REGULATORY LANGUAGE WOULD CONTRAVENE THE
REGULATION AND, THEREFORE, WOULD NOT BE WITHIN THE DUTY TO BARGAIN. THE
UNION, HOWEVER, CONTENDS, IN ORDER FOR A PROPOSAL TO BE OUTSIDE THE DUTY
TO BARGAIN, THE PROPOSAL MUST BE INCONSISTENT WITH THE REGULATIONS "IN
THE SENSE OF BEING MUTUALLY REPUGNANT OR CONTRADICTORY." THUS, THE UNION
ARGUES, USE OF THE PROPOSED DEFINITIONS WOULD NOT RESULT IN
NONCOMPLIANCE WITH THE REGULATIONS. FINALLY, THE UNION NOTES THAT OTHER
LANGUAGE TENTATIVELY AGREED UPON BETWEEN THE PARTIES WOULD PROVIDE:
IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES ARE
GOVERNED BY THE PROVISIONS OF EXISTING AND FUTURE LAWS AND
REGULATIONS . . .
THE UNION HERE CONCLUDES THE PROPOSAL CANNOT BE READ WITHOUT
REFERENCE TO THE APPLICABLE OFFICE OF PERSONNEL MANAGEMENT (OPM)
REGULATIONS AND MUST BE INTERPRETED AND APPLIED CONSISTENTLY WITH THOSE
REGULATIONS.
SECTION 4302 OF THE CIVIL SERVICE REFORM ACT (CSRA) /3/ REQUIRES EACH
AGENCY TO DEVELOP ONE OR MORE PERFORMANCE APPRAISAL SYSTEMS AND STATES
THE BASIC REQUIREMENTS OF SUCH SYSTEMS. THE OPM REGULATIONS ISSUED
PURSUANT TO THIS SECTION, WHICH ARE RELIED UPON BY THE AGENCY, PROVIDE
IN PERTINENT PART AS FOLLOWS:
(D) "PERFORMANCE STANDARDS" ARE THE EXPRESSED MEASURE OF THE LEVEL OF
ACHIEVEMENT
ESTABLISHED BY MANAGEMENT FOR THE DUTIES AND RESPONSIBILITIES OF A
POSITION OR GROUP OF
POSITIONS. PERFORMANCE STANDARDS MAY INCLUDE, BUT ARE NOT LIMITED
TO, ELEMENTS SUCH AS
QUANTITY, QUALITY, AND TIMELINESS.
(E) "CRITICAL ELEMENT" MEANS A COMPONENT OF AN EMPLOYEE'S JOB THAT IS
OF SUFFICIENT
IMPORTANCE THAT PERFORMANCE BELOW THE MINIMUM STANDARD ESTABLISHED BY
MANAGEMENT REQUIRES
REMEDIAL ACTION AND DENIAL OF A WITHIN-GRADE INCREASE, AND MAY BE THE
BASIS FOR REMOVING OR
REDUCING THE GRADE LEVEL OF THAT EMPLOYEE. SUCH ACTION MAY BE TAKEN
WITHOUT REGARD TO
PERFORMANCE ON OTHER COMPONENTS OF THE JOB.
ASSUMING, WITHOUT DECIDING, THAT THE REGULATIONS AT 5 CFR 430.202 ARE
GOVERNMENT-WIDE REGULATIONS, THE PROPOSALS HERE ARE NOT INCONSISTENT
WITH THE CITED REGULATIONS IN THAT THEY ARE NOT INCOMPATIBLE OR
IRRECONCILABLE WITH THOSE REGULATIONS. THE ONLY DIFFERENCE BETWEEN THE
UNION'S PROPOSED DEFINITION OF THE TERM "ESTABLISHED BY MANAGEMENT,"
WHILE THE PROPOSAL HERE IS SILENT IN THAT RESPECT. IN THAT REGARD,
HOWEVER, THE AUTHORITY HELD IN NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119
(1980), DECIDED THIS DATE, THAT MANAGEMENT RETAINS THE RIGHT UNDER
SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE TO ESTABLISH PERFORMANCE
STANDARDS. SIMILARLY, THE REGULATION AT 5 CFR 430.202(E) REGARDING
CRITICAL ELEMENTS REFERS TO CERTAIN REQUIRED "REMEDIAL ACTION" FOR
SUBSTANDARD PERFORMANCE, WHILE THE UNION'S PROPOSED SECTION 5 IS SILENT
IN THAT RESPECT. IN ALL CASES REGARDING REMEDIAL ACTION, THE REGULATION
WOULD GOVERN; THEREFORE, MANAGEMENT'S RIGHT TO TAKE SUCH ACTION IS
PROTECTED.
INSOFAR AS THE PROPOSALS HERE ARE SILENT WITH RESPECT TO THE MATTERS
SET FORTH ABOVE. AND THE RECORD DOES NOT INDICATE THAT THE UNION INTENDS
THAT THE PROPOSALS BE APPLIED IN ANY MANNER INCONSISTENT WITH LAW AND
REGULATION, THE PROPOSALS ARE NOT INCONSISTENT WITH THE REGULATIONS
CITED BY THE AGENCY HERE. IN ANY EVENT, THE STATUTE, AS APPLIED BY THE
AUTHORITY, AND THE APPLICABLE REGULATION WOULD GOVERN THE MATTERS NOT
ADDRESSED BY THE PROPOSALS. ACCORDINGLY, SINCE THE PROPOSALS HERE ARE
THUS NOT INCONSISTENT WITH THE REGULATIONS CITED BY THE AGENCY, THE
AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSALS ARE NOT WITHIN THE DUTY
TO BARGAIN MUST BE SET ASIDE.
UNION PROPOSAL 4
SECTION 6. EMPLOYEES SHALL PARTICIPATE IN ESTABLISHING PERFORMANCE
STANDARDS THROUGH
COLLECTIVE BARGAINING, TO THE EXTENT THIS MATTER IS WITHIN THE SCOPE
OF BARGAINING.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS A MATTER
WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY THE
AGENCY, VIOLATES SECTION 7106 /4/ OF THE STATUTE.
OPINION
CONCLUSION: THE PROPOSAL VIOLATES SECTION 7106(A)(2)(A) AND (B) OF
THE STATUTE INSOFAR AS IT REQUIRES NEGOTIATION ON THE ESTABLISHMENT AND
CONTENT OF PERFORMANCE STANDARDS. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR 2424.10, THE
AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
IS SUSTAINED.
REASONS: BOTH THE UNION AND THE AGENCY HAVE INTERPRETED THIS
PROPOSAL AS REQUIRING COLLECTIVE BARGAINING CONCERNING THE ESTABLISHMENT
AND SUBSTANCE OF PERFORMANCE STANDARDS AND THE PROPOSAL IS SO
INTERPRETED FOR THE PURPOSE OF THIS DECISION. THUS, THE SUBSTANTIVE
ISSUE PRESENTED HERE IS IDENTICAL TO THAT ADDRESSED BY THE AUTHORITY IN
BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119 (1980), SUPRA. IN THAT
DECISION, THE AUTHORITY HELD THAT A PROPOSAL TO ESTABLISH A PARTICULAR
CRITICAL ELEMENT AND PERFORMANCE STANDARD WOULD DIRECTLY INTERFERE WITH
THE EXERCISE OF MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN
WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE AND, THEREFORE,
WAS NOT WITHIN THE DUTY TO BARGAIN. SINCE THE PROPOSAL HERE WOULD
LIKEWISE REQUIRE NEGOTIATIONS CONCERNING THE ESTABLISHMENT AND CONTENT
OF PERFORMANCE STANDARDS, IT BEARS NO DISPOSITIVE DIFFERENCE FROM THE
PROPOSAL HELD NOT TO BE WITHIN THE DUTY TO BARGAIN IN THE BUREAU OF THE
PUBLIC DEBT CASE. THEREFORE, FOR THE REASONS FULLY SET FORTH IN BUREAU
OF THE PUBLIC DEBT, THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD NOT
TO BE WITHIN THE DUTY TO BARGAIN. IT IS EMPHASIZED, HOWEVER, AS STATED
IN BUREAU OF THE PUBLIC DEBT (AT PAGE 2 OF THE DECISION) THAT:
. . . CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION
7101 OF THE STATUTE
THAT EMPLOYEES PARTICIPATE THROUGH LABOR ORGANIZATIONS OF THEIR OWN
CHOOSING IN DECISIONS
WHICH AFFECT THEM, AND OTHER SECTIONS DISCUSSED HEREINAFTER, THE
AGENCY'S RIGHT TO IDENTIFY
CRITICAL ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS UNDER SECTION
7106(A) IS SUBJECT TO
CERTAIN RIGHTS OF A LABOR ORGANIZATION UNDER THE STATUTE.
SPECIFICALLY, UNDER SECTION 7117,
AS TO THE UNITS OF EXCLUSIVE RECOGNITION, IT IS WITHIN THE DUTY OF
THE AGENCY TO BARGAIN,
CONSISTENT WITH LAW AND REGULATION, ON ASPECTS OF PERFORMANCE
APPRAISAL SYSTEMS OTHER THAN
IDENTIFICATION OF CRITICAL ELEMENTS AND CONTENT OF PERFORMANCE
STANDARDS. THE DUTY TO BARGAIN
EXTENDS TO, AMONG OTHER MATTERS, THE FORM OF THE EMPLOYEE
PARTICIPATION IN THE ESTABLISHMENT
OF PERFORMANCE STANDARDS REQUIRED UNDER SECTION 4302 OF THE CIVIL
SERVICE REFORM ACT
(CSRA). IN THIS CONNECTION, SECTION 4302 IN ITS REFERENCE TO
PARTICIPATION OF EMPLOYEES IN
ESTABLISHING PERFORMANCE STANDARDS REFERS TO ALL EMPLOYEES, WHETHER
REPRESENTED OR
UNREPRESENTED.
FURTHERMORE, SECTION 7106(A) IS SUBJECT TO SECTION 7106(B). UNDER
SECTION 7106(B)(2), AN
AGENCY HAS THE DUTY TO BARGAIN ON PROCEDURES WHICH MANAGEMENT
OFFICIALS WILL OBSERVE IN THE
DEVELOPMENT AND IMPLEMENTATION OF PERFORMANCE STANDARDS AND CRITICAL
ELEMENTS; AND, UNDER
SECTION 7106(B)(3), ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
ADVERSELY AFFECTED BY THE
APPLICATION OF PERFORMANCE STANDARDS TO THEM. IN ADDITION, UNDER
SECTION 7114 OF THE STATUTE,
THE AGENCY MUST AFFORD AN EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO
BE PRESENT AT ANY FORMAL
DISCUSSION BETWEEN AN AGENCY REPRESENTATIVE AND A UNIT EMPLOYEE
REGARDING THE ESTABLISHMENT OR
THE IMPLEMENTATION OF PERFORMANCE STANDARDS AND CRITICAL ELEMENTS
AND, WHEN REQUESTED, AT ANY
INVESTIGATORY INTERVIEW OF A UNIT EMPLOYEE WHO REASONABLY BELIEVES
THAT THE EXAMINATION MAY
RESULT IN DISCIPLINE FOR UNACCEPTABLE PERFORMANCE UNDER SECTION 4303
OF THE CSRA. FINALLY,
THE RIGHT OF AN AGENCY UNDER SECTION 7106(A) TO IDENTIFY CRITICAL
ELEMENTS AND ESTABLISH
PERFORMANCE STANDARDS IS SUBJECT TO THE RIGHT OF AN EMPLOYEE AGAINST
WHOM DISCIPLINARY ACTION
HAS BEEN TAKEN. THE EMPLOYEE HAS A RIGHT TO CHALLENGE SUCH ACTION
UNDER THE APPELLATE
PROCEDURES OF SECTION 7701 OF THE CSRA OR UNDER A NEGOTIATED
GRIEVANCE PROCEDURE PURSUANT TO
SECTION 7121 OF THE STATUTE.
THUS, IN THE INSTANT CASE, THE AGENCY'S RIGHT TO IDENTIFY CRITICAL
ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS IS SUBJECT TO THE RIGHT OF
A LABOR ORGANIZATION TO NEGOTIATE ON SIGNIFICANT ASPECTS OF PERFORMANCE
APPRAISAL SYSTEMS, INCLUDING THE FORM OF THE EMPLOYEE PARTICIPATION IN
THE ESTABLISHMENT OF PERFORMANCE STANDARDS. FURTHERMORE, MANAGEMENT
HAS
AN OBLIGATION TO NEGOTIATE PROCEDURES AND APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S ESTABLISHING PERFORMANCE
STANDARDS. IN ADDITION, AN EXCLUSIVE REPRESENTATIVE MUST BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT CERTAIN MEETINGS BETWEEN MANAGEMENT
AND
EMPLOYEES RELATING TO THE DEVELOPMENT AND IMPLEMENTATION OF PERFORMANCE
APPRAISAL SYSTEMS AND, WHEN REQUESTED, AT ANY INVESTIGATORY INTERVIEW
WHEN A UNIT EMPLOYEE BELIEVES THAT THE EXAMINATION MAY RESULT IN
DISCIPLINE FOR UNACCEPTABLE PERFORMANCE. FINALLY, AN EMPLOYEE AGAINST
WHOM DISCIPLINARY ACTION HAS BEEN TAKEN FOR UNACCEPTABLE PERFORMANCE HAS
A RIGHT TO CHALLENGE UNDER APPELLATE PROCEDURES OR A NEGOTIATED
GRIEVANCE PROCEDURE THE ACTION TAKEN. HOWEVER, INSOFAR AS THE PROPOSAL
HERE AS INTERPRETED BY THE PARTIES REQUIRES BARGAINING OVER THE CONTENT
OF PERFORMANCE STANDARDS, IT IS OUTSIDE THE DUTY TO BARGAIN, AND THE
AGENCY'S ALLEGATION MUST BE SUSTAINED.
UNION PROPOSAL 5
SECTION. ALL PERFORMANCE STANDARDS WILL BE FAIR AND EQUITABLE AND
CONSISTENT WITH THE
CLASSIFICATION STANDARDS FOR THE JOB. AN EMPLOYEE WHO BELIEVES A
STANDARD DOES NOT MEET THE
ABOVE CRITERIA MAY GRIEVE UNDER THE PROCEDURES IN SECTION.
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL AS A WHOLE IS
A MATTER WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY
THE AGENCY, THE PROPOSAL AS A WHOLE VIOLATES SECTIONS 7106(A)(2)(A) OR
7106(B)(1).
AN ADDITIONAL QUESTION PRESENTED IS WHETHER, AS FURTHER ALLEGED BY
THE AGENCY, THE "CLASSIFICATION STANDARDS" PORTION OF THE PROPOSAL
VIOLATES 5 U.S.C. 4302(B)(1) OR WHETHER THAT PORTION OF THE PROPOSAL
VIOLATES SECTION 7106(A)(2)(B) OF THE STATUTE.
OPINION
CONCLUSION: THE PROPOSAL AS A WHOLE DOES NOT VIOLATE SECTIONS
7106(A)(2)(A) OR 7106(B)(1) OF THE STATUTE. FURTHER, THE
"CLASSIFICATION STANDARDS" PORTION OF THE PROPOSAL DOES NOT VIOLATE
SECTION 4302(B)(1) OF THE CSRA OR SECTION 7106(A)(2)(B) OF THE STATUTE.
THEREFORE, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
7117(A)(1). ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS, 5 CFR 2424.10, THE AGENCY'S ALLEGATIONS THAT THE
DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN ARE SET ASIDE. /5/
REASONS: THE AGENCY CONTENDS THIS PROPOSAL IN ITS ENTIRETY WOULD
INTERFERE WITH THE EXERCISE OF CERTAIN MANAGEMENT RIGHTS UNDER SECTION
7106(A) AND (B)(1) OF THE STATUTE. MORE PARTICULARLY, THE AGENCY ARGUES
THE PROPOSAL WOULD INTERFERE WITH ITS RIGHT TO DIRECT EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE. ESSENTIALLY, THE AGENCY CONTENDS
THE "FAIR AND EQUITABLE" PORTION OF THE PROPOSAL HERE WOULD PREVENT THE
AGENCY FROM EXERCISING ITS DISCRETION IN ESTABLISHING PERFORMANCE
STANDARDS AND MIGHT ULTIMATELY PERMIT A THIRD PARTY TO ESTABLISH SUCH
STANDARDS IN DEROGATION OF ITS RIGHT TO DIRECT EMPLOYEES. THE AGENCY
ALSO CONTENDS GENERALLY THAT THE PROPOSAL HERE WOULD INTERFERE WITH ITS
RIGHT TO DISCIPLINE EMPLOYEES UNDER SECTION 7106(A)(2)(A) BECAUSE THE
PROPOSAL WOULD SEVERELY CIRCUMSCRIBE MANAGEMENT'S RIGHT TO TAKE ACTION
AGAINST AN EMPLOYEE FOR POOR PERFORMANCE. THE AGENCY ALSO ARGUES
GENERALLY THAT THE PROPOSAL AS A WHOLE WOULD INTERFERE WITH ITS RIGHT
UNDER SECTION 7106(B)(1) TO DETERMINE THE NUMBERS, TYPES, AND GRADES OF
EMPLOYEES.
THE AGENCY MAKES SEVERAL ADDITIONAL ARGUMENTS THAT THE PORTION OF THE
PROPOSAL WHICH WOULD REQUIRE THAT "PERFORMANCE STANDARDS WILL BE . . .
CONSISTENT WITH THE CLASSIFICATION STANDARDS FOR THE JOB" IS EXCLUDED
FROM THE DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT WITH SECTION
4302(B)(1) OF THE CSRA REGARDING ESTABLISHMENT OF PERFORMANCE APPRAISAL
SYSTEMS, AND VIOLATES THE RIGHT TO ASSIGN WORK UNDER SECTION
7106(A)(2)(B) OF THE STATUTE. THE AGENCY ARGUES IN ESSENCE THAT, SINCE
SECTION 4302(B)(1) REQUIRES PERFORMANCE STANDARDS TO BE RELATED TO THE
JOB IN QUESTION, THE UNION'S PROPOSAL WOULD VIOLATE THAT STATUTORY
REQUIREMENT INSOFAR AS THE PROPOSAL WOULD RELATE PERFORMANCE STANDARDS
TO CLASSIFICATION STANDARDS, RATHER THAN TO THE JOB. IN ADDITION, THE
AGENCY CONTENDS THAT THIS PORTION OF THE PROPOSAL WOULD LIMIT
MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE. SPECIFICALLY, THE AGENCY ASSERTS THAT THE PROPOSAL WOULD
INTERFERE WITH MANAGEMENT'S RIGHT TO ASSIGN WORK BY RESTRICTING
IDENTIFICATION OF CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE
STANDARDS TO ONLY THOSE LIMITED DUTIES EXPLICITLY SET FORTH IN THE
CLASSIFICATION STANDARDS FOR THE EMPLOYEE'S POSITION. SIMILARLY, THE
AGENCY CLAIMS THAT MANAGEMENT WOULD BE UNABLE TO ASSIGN AND EVALUATE
EMPLOYEE PERFORMANCE WITH RESPECT TO DUTIES UNRELATED TO AN EMPLOYEE'S
CLASSIFICATION, AND QUESTIONS WHETHER ANY PERFORMANCE STANDARD COULD BE
ESTABLISHED FOR POSITIONS FOR WHICH NO CLASSIFICATION STANDARD EXISTS.
SECTION 7106(A) AND (B)(1) OF THE STATUTE RECOGNIZES CERTAIN
MANAGEMENT RIGHTS. HOWEVER, SECTION 7106(B)(2) AND (3) OF THE STATUTE
PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN ON PROCEDURES WHICH
MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS AND ON
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF MANAGEMENT'S AUTHORITY. /6/ INSOFAR AS IT IS CONSISTENT
WITH THE RIGHT OF MANAGEMENT ULTIMATELY TO ACT WITH RESPECT TO ITS
AUTHORITY, CONGRESS INTENDED THE PARTIES TO WORK OUT THEIR DIFFERENCES
ON PROCEDURES AND APPROPRIATE ARRANGEMENTS THROUGH NEGOTIATIONS. /7/
IN BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119 (1980), SUPRA, THE
AUTHORITY APPLIED SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE
CONCERNING THE RIGHTS OF MANAGEMENT TO DIRECT EMPLOYEES AND TO ASSIGN
WORK. ANALYZING THE PURPOSE AND FUNCTION OF CRITICAL ELEMENTS AND
PERFORMANCE STANDARDS, THE AUTHORITY FOUND THAT THE RIGHTS TO DIRECT
EMPLOYEES AND TO ASSIGN WORK UNDER THE STATUTE INCLUDE THE AUTHORITY TO
ESTABLISH CRITICAL ELEMENTS AND PERFORMANCE STANDARDS. ACCORDINGLY, THE
AUTHORITY HELD THAT THE PROPOSAL IN THAT CASE WHICH IDENTIFIED A
CRITICAL ELEMENT AND ESTABLISHED A QUANTITATIVE PERFORMANCE STANDARD FOR
THAT JOB ELEMENT WAS NOT WITHIN THE DUTY TO BARGAIN. HOWEVER, AS WAS
EMPHASIZED IN THAT DECISION, AN AGENCY HAS A DUTY TO BARGAIN UNDER
SECTION 7106(B)(3) OF THE STATUTE, ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS AUTHORITY
UNDER SECTION 7106(A), I.E., ACTIONS TAKEN UNDER SUCH STANDARDS. MORE
PARTICULARLY, THE AUTHORITY STATED THAT NOTHING IN ITS DECISION WOULD
PRECLUDE AN EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING CRITERIA FOR THE
APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT HAS ESTABLISHED.
ACCORDINGLY, INSOFAR AS THE PROPOSAL HERE MERELY WOULD ESTABLISH A
GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT
MAY SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES
THAT HE HAS BEEN ADVERSELY AFFECTED BY THE APPLICATION OF MANAGEMENT'S
PERFORMANCE STANDARD TO HIM, AND THE AUTHORITY SO INTERPRETS THE
PROPOSAL FOR PURPOSES OF THIS DECISION, IT IS WITHIN THE DUTY TO
BARGAIN. THUS, AN EMPLOYEE AGAINST WHOM MANAGEMENT TAKES DISCIPLINARY
ACTION FOR UNACCEPTABLE PERFORMANCE MAY, IN A GRIEVANCE OF SUCH ACTION
PURSUANT TO SECTION 7121(E) OF THE STATUTE RAISE THE ISSUE OF WHETHER
THE PERFORMANCE STANDARDS AS APPLIED TO HIM MEET THE CONTRACTUAL
REQUIREMENTS. /8/ SUCH REVIEW BY AN ARBITRATOR WOULD NOT, CONTRARY TO
THE AGENCY'S ALLEGATIONS, PRECLUDE THE AGENCY FROM INITIALLY DETERMINING
THE CONTENT OF THE STANDARD, NOR WOULD IT RESULT IN THE SUBSTITUTION OF
THE ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY AND THE SETTING OF A
NEW STANDARD; IT WOULD SIMPLY DETERMINE IF THE STANDARD ESTABLISHED BY
MANAGEMENT AS APPLIED TO THE GRIEVANT COMPLIED WITH THE "FAIR AND
EQUITABLE . . . " REQUIREMENTS OF THE PARTIES' AGREEMENT.
THUS, THE PROPOSAL HERE DOES NOT IMPOSE ON THE AGENCY A PARTICULAR
DECISION AS TO THE QUANTITY, QUALITY, AND TIMELINESS OF PRODUCTION OR
THE ESTABLISHING OF PRIORITIES, OR OTHERWISE ESTABLISH THE CONTENT OF
PERFORMANCE STANDARDS IN DEROGATION OF MANAGEMENT'S RIGHT TO DIRECT
EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. SIMILARLY, SINCE
THE PROPOSAL DOES NOT PREVENT MANAGEMENT FROM ESTABLISHING PERFORMANCE
STANDARDS AND TAKING ACTION UNDER SECTION 4303 OF THE CSRA AGAINST
EMPLOYEES BASED UPON SUCH STANDARDS, IT DOES NOT PREVENT MANAGEMENT
FROM
TAKING DISCIPLINARY ACTION AGAINST AN EMPLOYEE PURSUANT TO SECTION
7106(A)(2)(A). FURTHER, THE RECORD DOES NOT DISCLOSE AND IT IS NOT
OTHERWISE APPARENT IN WHAT MANNER THE PROPOSAL IS RELATED TO NUMBERS,
TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY OR
ORGANIZATIONAL SUBDIVISION. ACCORDINGLY, THE AGENCY'S ALLEGATIONS THAT
THE PROPOSAL AS A WHOLE IS NOT WITHIN THE DUTY TO BARGAIN BY REASON OF
SECTION 7106(B)(1) CANNOT BE SUSTAINED.
WITH RESPECT TO THE AGENCY'S ADDITIONAL ALLEGATION THAT THE PORTION
OF THE PROPOSAL WHICH STATES THAT "PERFORMANCE STANDARDS WILL BE . . .
CONSISTENT WITH THE CLASSIFICATION STANDARDS FOR THE JOB" IS
INCONSISTENT WITH SECTION 4302 OF THE CSRA, THE UNION EXPRESSLY CONCEDES
THAT "PERFORMANCE STANDARDS MUST BE ULTIMATELY BASED ON THE ACTUAL
DUTIES PROPERLY ASSIGNED THE EMPLOYEES." MOREOVER, WITH RESPECT TO THE
EXPRESS TERMS OF THE PROPOSAL, I.E., THAT PERFORMANCE STANDARDS MUST BE
"CONSISTENT WITH CLASSIFICATION STANDARDS FOR THE JOB," THE UNION STATES
AS FOLLOWS:
ALL THAT THE PROPOSAL MEANS, IS THAT, FOR EXAMPLE, WHEN QUALITY OF
WORK IS GRADE-DEFINING,
THE STANDARD FOR QUALITY AT A GIVEN LEVEL MUST BE AT THAT LEVEL, AND
NOT AT A HIGHER OR LOWER
LEVEL . . . UNDER THE PROPOSAL, CLASSIFICATION STANDARDS ONLY COME
INTO PLAY TO THE EXTENT
THEY ARE "FOR THE JOB."
THUS, UNDER THE UNION'S INTERPRETATION OF ITS PROPOSED LANGUAGE, THE
UNION DOES NOT IN ANY MANNER SEEK TO BARGAIN OVER POLICIES, PRACTICES
AND MATTERS RELATING TO THE CLASSIFICATION OF ANY POSITION. THE SOLE
AND LIMITED EFFECT OF THE UNION'S PROPOSAL AS INTERPRETED BY THE UNION,
WHICH INTERPRETATION IS CONSISTENT WITH THE LANGUAGE OF THE PROPOSAL AND
IS ADOPTED FOR PURPOSES OF THIS DECISION, IS AS FOLLOWS: IN THE RARE
INSTANCE WHERE AN APPLICABLE CLASSIFICATION STANDARD USES A QUANTITATIVE
OR QUALITATIVE PERFORMANCE CRITERION TO DISTINGUISH AMONG GRADE LEVELS,
THE PERFORMANCE STANDARD ESTABLISHED SHOULD REFLECT THIS DISTINCTION.
THAT IS, UNDER THIS PROPOSAL, WHERE SUCH A CLASSIFICATION STANDARD IS
APPLICABLE, AN EMPLOYEE COULD GRIEVE THE APPLICATION OF A PERFORMANCE
STANDARD WITH RESPECT TO ANY TASK ASSIGNED TO HIM IF THAT PERFORMANCE
STANDARD REFLECTED A LEVEL OF ACHIEVEMENT DIFFERENT FROM THE LEVEL
SPECIFIED FOR THE GRADE TO WHICH THE EMPLOYEE'S POSITION IS CLASSIFIED.
IN ESSENCE, THE "CLASSIFICATION STANDARDS" PORTION OF THE PROPOSAL
MERELY CONSTITUTES A SPECIFIC ASPECT OF THE "FAIR AND EQUITABLE"
REQUIREMENT OF THE PROPOSAL UNDER WHICH THE APPLICATION OF PERFORMANCE
STANDARDS MAY BE REVIEWED BY AN ARBITRATOR. IT HAS A LIMITED EFFECT AS
JUST STATED IN ONLY APPLYING IN THOSE RARE INSTANCES WHERE QUANTITATIVE
OR QUALITATIVE PERFORMANCE CRITERIA ARE USED IN A CLASSIFICATION
STANDARD TO DISTINGUISH AMONG GRADE LEVELS. THUS, AS THE UNION
EXPRESSLY STATES, THE PROPOSAL DOES NOT PREVENT THE AGENCY FROM
ESTABLISHING, PURSUANT TO SECTION 4302(B)(1), PERFORMANCE STANDARDS
RELATED TO THE JOB PERFORMED BY THE EMPLOYEE. ACCORDINGLY, THE PROPOSAL
HERE DOES NOT IN ANY MANNER SEEK TO NEGOTIATE OVER CLASSIFICATION
MATTERS OR THE SUBSTANCE OF PERFORMANCE STANDARDS, NOR IS IT
INCONSISTENT WITH SECTION 4302 AS ALLEGED BY THE AGENCY.
FURTHER, AS NOTED ABOVE, THE AGENCY HAS ALLEGED THAT THE PROPOSAL
WOULD INTERFERE WITH ITS RIGHT TO ASSIGN WORK UNDER SECTION
7106(A)(2)(B) OF THE STATUTE. SPECIFICALLY, THE AGENCY CONTENDS THAT
THIS RIGHT WOULD BE INFRINGED UPON IN THREE RESPECTS. THAT IS, THE
AGENCY CONTENDS IT WOULD BE UNABLE TO ASSIGN DUTIES NOT PRESCRIBED IN
THE CLASSIFICATION STANDARDS, IT WOULD BE UNABLE TO ASSIGN DUTIES
UNRELATED TO THOSE STANDARDS, AND IT WOULD BE UNABLE TO ESTABLISH
PERFORMANCE STANDARDS WHERE NO CLASSIFICATION STANDARDS ARE APPLICABLE
TO THE POSITION OR TO ANY PARTICULAR DUTIES THEREOF. NONE OF THESE
ARGUMENTS CAN BE SUSTAINED FOR THE SAME REASON, WHICH IS THAT THE
PROPOSAL ON ITS FACE AND AS INTERPRETED BY THE UNION DOES NOT IN ANY
MANNER LIMIT THE ASSIGNMENT OF WORK OR THE SCOPE OF DUTIES UPON WHICH AN
EMPLOYEE CAN BE EVALUATED. THUS, WITHOUT REGARD TO WHETHER THE DUTIES
ASSIGNED TO AN EMPLOYEE ARE STATED IN OR ARE UNRELATED TO THE
CLASSIFICATION STANDARDS APPLICABLE TO THE EMPLOYEE'S JOB, OR WHETHER
THERE IS ANY CLASSIFICATION STANDARD APPLICABLE TO THE EMPLOYEE'S JOB,
THE PROPOSAL DOES NOT CONFLICT WITH MANAGEMENT'S RIGHT TO ASSIGN TO AN
EMPLOYEE ANY DUTIES AND TO ESTABLISH PERFORMANCE STANDARDS AND CRITICAL
ELEMENTS WITH RESPECT TO ANY ONE OF THEM. ACCORDINGLY, THE AGENCY'S
ALLEGATION THAT THE PROPOSAL WOULD INTERFERE WITH ITS RIGHT TO ASSIGN
WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE MUST BE SET ASIDE.
BASED UPON THE FOREGOING, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN
UNDER SECTION 7106(B)(3) OF THE STATUTE AS AN APPROPRIATE ARRANGEMENT
FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S AUTHORITY UNDER THE
STATUTE TO DIRECT EMPLOYEES AND ASSIGN WORK THROUGH THE ESTABLISHMENT OF
PERFORMANCE STANDARDS AND TO DISCIPLINE EMPLOYEES FOR UNACCEPTABLE
PERFORMANCE.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:
MS. SUE A. VAN VOORHIS
DIRECTOR, OFFICE OF PERSONNEL
OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, NW.
WASHINGTON, D.C. 20415
MR. PHILLIP R. KETE
LABOR RELATIONS CONSULTANT
GAFFNEY, ANSPACH, SCHEMBER,
KLIMASKI & MARKS, P.C.
1712 N STREET, NW.
WASHINGTON, D.C. 20036
HON. ALAN K. CAMPBELL
CHAIRMAN, OFFICE OF PERSONNEL
MANAGEMENT
1900 E STREET, NW.
WASHINGTON, D.C. 20415
/1/ PURSUANT TO THE REQUIREMENT TO EXPEDITE PROCEEDINGS TO THE EXTENT
PRACTICABLE CONTAINED IN SECTION 7117(C)(6) OF THE STATUTE AND SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR 2424.10, UNION
PROPOSAL 1 (O-NG-177-1) IN THE ABOVE-CAPTIONED MATTER HAS BEEN SEVERED
FROM THE PROPOSALS CONSIDERED HEREIN AND WILL BE CONSIDERED SEPARATELY.
/2/ IN DECIDING THAT THE PROPOSALS ARE WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.
/3/ SECTION 4302 OF THE CSRA (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.
/4/ 5 U.S.C. 7106 PERTINENTLY 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--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED
(.)
/5/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
/6/ 5 U.S.C. 7106(B)(2) AND (3) PROVIDE:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
* * * *
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/7/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA NO. 16 (1979) AT 2-4 OF DECISION; AND NATIONAL TREASURY
EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO,
CALIFORNIA, 2 FLRA NO. 30 (1979) AT 5-6 OF DECISION.
/8/ CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
REVENUE SERVICE, NEW ORLEANS DISTRICT OFFICE, 1 FLRA NO. 102 (1979)
(REQUIREMENT THAT CERTAIN AGENCY DETERMINATIONS "BE MADE IN A FAIR,
OBJECTIVE AND EQUITABLE MANNER" IS WITHIN THE DUTY TO BARGAIN UNDER
SECTION 7106(B)(2)).