[ v06 p9 ]
06:0009(5)NG
The decision of the Authority follows:
6 FLRA No. 5 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1497 Union and HEADQUARTERS, LOWRY TECHNICAL TRAINING CENTER (ATC), LOWRY AIR FORCE BASE, COLORADO Agency Case No. O-NG-159 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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) AND INVOLVES THE NEGOTIABILITY OF THE FOLLOWING PROPOSAL: UNION PROPOSAL THE EMPLOYER AND THE UNION AGREE THAT THE DEVELOPMENT OF PERFORMANCE STANDARDS WILL BE A JOINT EFFORT. EMPLOYEES HAVING THE SAME POSITION DESCRIPTION SHALL HAVE THE SAME PERFORMANCE STANDARD. EMPLOYEES AND THEIR SUPERVISORS SHALL DEVELOP MUTUALLY AGREEABLE PERFORMANCE STANDARDS. WHEN A MUTUALLY AGREEABLE PERFORMANCE STANDARD IS NOT ACHIEVED, A PANEL OF SUBJECT MATTER SPECIALISTS APPOINTED IN EQUAL NUMBERS BY THE EMPLOYER AND THE UNION SHALL RESOLVE THE PROBLEM. THE PERFORMANCE EVALUATION CRITERIA MUST BE JOB-RELATED AND OBJECTIVE. ONLY THE MORE CRITICAL ELEMENTS OF A POSITION WILL BE INCLUDED AS EVALUATION CRITERIA. APPRAISAL CRITERIA SHALL BE DEVELOPED USING THE SAME APPROACH AS SPECIFIED IN SECTION 1 ABOVE IN DEVELOPING PERFORMANCE STANDARDS. IN THE INTEREST OF PROVIDING FOR OBJECTIVITY IN A SUPERVISORY APPRAISAL, AN EMPLOYEE SHOULD HAVE BEEN WORKING UNDER THE EVALUATING SUPERVISOR FOR AT LEAST NINETY (90) DAYS. WHEN THIS IS NOT THE CASE, PRIOR SUPERVISORY APPRAISALS SHALL BE OBTAINED FOR USE. SUPERVISORS SHALL KEEP EMPLOYEES ADVISED OF WEAKNESSES IN JOB PERFORMANCE AND OF AREAS IN WHICH EMPLOYEES MAY IMPROVE CHANCES FOR PROMOTION. COPIES OF ALL APPRAISAL STANDARDS SHALL BE AVAILABLE UPON REQUEST TO THE UNION AND INDIVIDUAL MEMBERS OF THE BARGAINING UNIT. THERE IS HEREBY ESTABLISHED A PERFORMANCE STANDARDS COMMITTEE CONSISTING OF A NONVOTING CHAIRMAN, EXCEPT IN CASE OF TIES, SELECTED BY DCT, THREE MEMBERS DESIGNATED BY THE EMPLOYER AND THREE MEMBERS DESIGNATED BY THE UNION. THE COMMITTEE SHALL DEVELOP PERFORMANCE STANDARDS FOR PROFESSIONAL AND TECHNICAL POSITIONS WITHIN THE UNIT, AS NECESSARY, FOR CONSIDERATION BY THE CIVILIAN PERSONNEL OFFICER. THE COMMITTEE SHALL DETERMINE ITS OWN METHODS OF OPERATION AND RULES OF PROCEDURE. QUESTION BEFORE THE AUTHORITY THE QUESTION IS WHETHER THE DISPUTED PROPOSAL IS INCONSISTENT WITH LAW, I.E., SECTION 7106 OF THE STATUTE, AS ALLEGED BY THE AGENCY. OPINION CONCLUSION AND ORDER: THE DISPUTED PROPOSAL VIOLATES THE RIGHTS OF AGENCY MANAGEMENT TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575(1980)), IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED. REASONS: THE UNION'S PROPOSAL PROVIDES, IN GENERAL, WHEN EMPLOYEES AND THEIR SUPERVISOR FAIL TO DEVELOP CRITICAL ELEMENTS AND PERFORMANCE STANDARDS WHICH ARE MUTUALLY AGREEABLE, FOR A PANEL AND/OR A COMMITTEE TO IDENTIFY CRITICAL ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS REQUIRED AS A PART OF A PERFORMANCE APPRAISAL SYSTEM UNDER 5 U.S.C. 4302. /1/ WHILE THE RECORD IS NOT PRECISE AS TO HOW THE VARIOUS PARTS OF THIS PROPOSAL RELATE TO ONE ANOTHER, THE UNION MAINTAINS THAT THE PROPOSAL MUST BE TAKEN AS A WHOLE TO DETERMINE ITS INTENT AND HAS NOT REQUESTED THAT THE SEPARATE PARAGRAPHS BE RULED UPON SEPARATELY. WHEN TAKEN AS A WHOLE, THE UNION CLAIMS THE PROPOSAL PROVIDES A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE WHEREBY EMPLOYEES MAY PARTICIPATE IN THE DEVELOPMENT OF PERFORMANCE STANDARDS AS REQUIRED BY 5 U.S.C. 4302. THIS PROPOSAL, TAKEN AS A WHOLE AS THE UNION DESIRES, WOULD REQUIRE THE PANEL AND/OR COMMITTEE TO IDENTIFY "ONLY THE MORE CRITICAL ELEMENTS OF A POSITION" AS EVALUATION CRITERIA AND PRECLUDES THE ESTABLISHMENT OF DIFFERENT PERFORMANCE STANDARDS FOR EMPLOYEES WITH THE SAME POSITION DESCRIPTION. THEREFORE, THE PROPOSAL AS A WHOLE IS NOT WITHIN THE DUTY TO BARGAIN IF THE ABOVE-STATED REQUIREMENTS AS TO IDENTIFICATION OF CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE STANDARDS ARE INCONSISTENT WITH THE RIGHTS OF AGENCY MANAGEMENT UNDER SECTION 7106 OF THE STATUTE. BY REQUIRING THE DESIGNATION OF ONLY THE MORE CRITICAL ELEMENTS OF A POSITION AS EVALUATION CRITERIA, THE PROPOSAL WOULD PRECLUDE THE IDENTIFICATION AS EVALUATION CRITERIA OF ANY ELEMENTS OF A POSITION WHICH ARE NOT "MORE CRITICAL" WITHIN THE MEANING OF THE PROPOSAL. SIMILARLY, BY REQUIRING THAT PERFORMANCE STANDARDS BE THE SAME FOR EMPLOYEES HAVING THE SAME POSITION DESCRIPTION, THE PROPOSAL WOULD PREVENT THE DETERMINATION THAT THE CONTENT OF PERFORMANCE STANDARDS SHOULD BE DIFFERENT EVEN IF THE CIRCUMSTANCES RELATING TO THE JOBS AND WORK PERFORMANCE OF SUCH EMPLOYEES WOULD WARRANT THE APPLICATION OF DIFFERENT STANDARDS. THUS, THE PROPOSAL IN THESE RESPECTS BEARS NO MATERIAL DIFFERENCE FROM UNION PROPOSAL 1 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). IN THAT CASE, THE AUTHORITY, APPLYING THE PRINCIPLES SET FORTH IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), HELD THAT A PROPOSAL REQUIRING THAT ONLY GRADE-CONTROLLING ELEMENTS OF A POSITION BE IDENTIFIED AS CRITICAL ELEMENTS WAS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD PRECLUDE THE AGENCY FROM IDENTIFYING ELEMENTS OF A POSITION WHICH ARE NOT GRADE-CONTROLLING AS CRITICAL ELEMENTS. THE AUTHORITY STATED (AT 3 OF THE DECISION): THE DECISION IN BUREAU OF THE PUBLIC DEBT IS CONTROLLING AS TO THE DISPUTED PORTION OF THE PROPOSAL IN THE PRESENT CASE BECAUSE THAT PART OF THE PROPOSAL EXPRESSLY WOULD PRECLUDE THE AGENCY FROM ESTABLISHING PARTICULAR CRITICAL ELEMENTS, I.E., THOSE WHICH ARE NOT BASED ON GRADE-CONTROLLING FACTORS FOR A PARTICULAR JOB. SUCH A LIMITATION WOULD DIRECTLY PREVENT MANAGEMENT FROM EXERCISING ITS STATUTORY AUTHORITY TO DIRECT EMPLOYEES AND ASSIGN WORK BY ESTABLISHING THE CRITICAL ELEMENTS OF POSITIONS. IN THE SAME MANNER, THE LIMITATIONS STATED IN THE UNION'S PROPOSAL HEREIN WOULD PREVENT AGENCY MANAGEMENT FROM EXERCISING ITS STATUTORY AUTHORITY TO DIRECT EMPLOYEES AND ASSIGN WORK BY IDENTIFYING THE CRITICAL ELEMENTS OF POSITIONS AND ESTABLISHING PERFORMANCE STANDARDS. THUS, TAKEN AS A WHOLE, THE UNION'S PROPOSAL DOES NOT ESTABLISH A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE. RATHER, IT WOULD ESTABLISH SUBSTANTIVE LIMITATIONS ON THE AGENCY'S RIGHT TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE AND, FOR THE REASONS MORE FULLY SET FORTH IN SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, SUPRA, AND BUREAU OF THE PUBLIC DEBT, SUPRA, IS OUTSIDE THE DUTY TO BARGAIN. ISSUED, WASHINGTON, D.C., JUNE 2, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ 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.