[ v06 p154 ]
06:0154(31)AR
The decision of the Authority follows:
6 FLRA No. 31 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923 Union and SOCIAL SECURITY ADMINISTRATION Agency Case No. O-AR-65 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF ARBITRATOR JACOB SEINDENBERG FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)). ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN THE AGENCY'S ASSOCIATE COMMISSIONER FOR MANAGEMENT, BUDGET, AND PERSONNEL ISSUED A MEMORANDUM NOTIFYING AGENCY MANAGEMENT OFFICIALS THAT THE AGENCY, PURSUANT TO OFFICE OF PERSONNEL MANAGEMENT REGULATIONS IMPLEMENTING TITLE II OF THE CIVIL SERVICE REFORM ACT (CSRA), WAS PLANNING TO DEVELOP CRITICAL ELEMENTS AND PERFORMANCE STANDARDS FOR ALL JOBS WHICH HAVE STANDARD POSITION DESCRIPTIONS. THE UNION, IN RESPONSE TO THIS MEMORANDUM, STATED ITS VIEW THAT "THE 'PERFORMANCE APPRAISAL SYSTEM' IN ITS ENTIRETY INCLUDING THE DESIGN OF PERFORMANCE STANDARDS AND IDENTIFYING CRITICAL ELEMENTS" IS SUBJECT TO COLLECTIVE BARGAINING, AND REQUESTED THAT THE AGENCY NEGOTIATE CONCERNING ITS ESTABLISHMENT OF SUCH A SYSTEM. IN REPLY TO THE UNION'S REQUEST FOR NEGOTIATIONS, THE AGENCY INDICATED ITS WILLINGNESS TO BARGAIN ON THE IMPACT AND IMPLEMENTATION OF THE PERFORMANCE APPRAISAL SYSTEM AS DEVELOPED BY THE AGENCY, BUT STATED THAT THE ESTABLISHMENT OF PERFORMANCE STANDARDS AND THE IDENTIFICATION OF CRITICAL ELEMENTS ARE NOT NEGOTIABLE UNDER SECTION 7106 OF THE STATUTE. THE UNION FILED A GRIEVANCE, CLAIMING, AMONG OTHER THINGS, THAT THE AGENCY'S REFUSAL TO NEGOTIATE ON THE ESTABLISHMENT OF ITS PERFORMANCE APPRAISAL SYSTEM VIOLATED ARTICLE 18, "PERFORMANCE APPRAISALS," OF THE PARTIES' GENERAL AGREEMENT. THAT PORTION OF THE GENERAL AGREEMENT PROVIDES, IN RELEVANT PART, AS FOLLOWS: SECTION E. THE ADMINISTRATION AND THE UNION WILL MEET AND CONFER IN A MANNER CONSISTENT WITH EXECUTIVE ORDER 11491, AS AMENDED, ON THE IMPLEMENTATION OF CHANGES OR MODIFICATIONS TO THE EVALUATION/APPRAISAL SYSTEM SO FAR AS THEY AFFECT HEADQUARTERS EMPLOYEES. UNABLE TO RESOLVE THE MATTER, THE PARTIES SUBMITTED THE GRIEVANCE TO ARBITRATION. AFTER FIRST FINDING THAT THE GRIEVANCE WAS ARBITRABLE, THE ARBITRATOR ADDRESSED THE ISSUE OF WHETHER THE AGENCY WAS REQUIRED "TO NEGOTIATE WITH THE UNION OVER THE ESTABLISHMENT OF A PERFORMANCE APPRAISAL SYSTEM(S) MANDATED BY THE CIVIL SERVICE REFORM ACT OF 1978." THE ARBITRATOR CHARACTERIZED THIS ISSUE AS PRESENTING THE QUESTION OF WHETHER SUCH PERFORMANCE STANDARDS AND CRITICAL ELEMENTS ARE NEGOTIABLE MATTERS UNDER THE PARTIES' AGREEMENT AND THE CIVIL SERVICE REFORM ACT OF 1978. THE ARBITRATOR AGREED WITH THE UNION THAT THE AGENCY HAD VIOLATED ARTICLE 18, SECTION E OF THE GENERAL AGREEMENT, STATING AS FOLLOWS: ON THE BASIS OF THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE, WE FIND THAT ESTABLISHING A NEW PERFORMANCE APPRAISAL PLAN OR MODIFYING THE EXISTING APPRAISAL/EVALUATION PLAN IS A MATTER TO BE NEGOTIATED BY THE AGENCY AND THE LOCAL UNION. WE REACHED THIS CONCLUSION BOTH BECAUSE ARTICLE 18, SECTION E OF THE CURRENT GENERAL AGREEMENT PROVIDES FOR THE PARTIES TO MEET AND CONFER ON MODIFICATIONS TO THE EMPLOYEE APPRAISAL PERFORMANCE SYSTEM, AND BECAUSE THE EVIDENCE REVEALS THAT THE PARTIES HAVE BARGAINED IN THE PAST ABOUT EFFECTING SUBSTANTIVE CHANGES IN THEN EXISTING EMPLOYEE APPRAISAL PERFORMANCE SYSTEMS. WE FIND THAT WHEN THE AGENCY SEEKS TO EFFECT A PERFORMANCE APPRAISAL SYSTEM PURSUANT TO THE MANDATE OF THE 1978 CIVIL SERVICE REFORM ACT THAT IT IS MODIFYING THE EXISTING SYSTEM AND ITS ACTIONS ARE SUBSUMED UNDER SECTION E OF ARTICLE 18. . . . . WE DO NOT FIND IT NECESSARY, IN LIGHT OF THE CITED CONTRACTUAL PROVISIONS AND THE PARTIES' BARGAINING HISTORY ON THE SUBJECT, TO DISCUSS THE IMPACT, IF ANY, OF THE PARTIES' BARGAINING RIGHTS AND PRIVILEGES, ON THIS SUBJECT CREATED BY THE PASSAGE OF THE 1978 CIVIL SERVICE REFORM ACT. IN THIS REGARD, THEREFORE, THE ARBITRATOR'S AWARD WAS THAT THE SUBJECT MATTER OF THE PARTIES' DISPUTE, I.E., ESTABLISHING A NEW PERFORMANCE APPRAISAL PLAN OR MODIFYING THE EXISTING APPRAISAL/EVALUATION PLAN, IS NEGOTIABLE. THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425. /2/ THE UNION FILED AN OPPOSITION. THE ESSENCE OF THE AGENCY'S EXCEPTIONS IS THAT THE ARBITRATOR'S AWARD VIOLATES LAW, SPECIFICALLY, 5 U.S.C. 4302 /3/ AND THE MANAGEMENT RIGHTS PROVISIONS OF SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE. /4/ THE AGENCY ARGUES IN SUPPORT OF ITS EXCEPTIONS THE ARBITRATOR ERRED IN FINDING, BASED ON THE LANGUAGE OF AND THE BARGAINING HISTORY ERRED IN FINDING, BASED ON THE LANGUAGE OF AND THE BARGAINING HISTORY RELATING TO THE PARTIES' CURRENT GENERAL AGREEMENT, THAT IT HAD AN OBLIGATION TO NEGOTIATE WITH THE UNION ON THE PERFORMANCE APPRAISAL SYSTEM(S) REQUIRED BY THE CSRA. THUS, THE AGENCY ASSERTS THAT THE AWARD WOULD REQUIRE THE AGENCY TO NEGOTIATE ON THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS CONTRARY TO ITS RIGHTS UNDER SECTION 7106(A) OF THE STATUTE TO DIRECT EMPLOYEES AND TO ASSIGN WORK. THE AUTHORITY ADDRESSED THE OBLIGATION OF AN AGENCY TO BARGAIN, AND THE EXTENT TO WHICH AN AGENCY MUST BARGAIN, IN CREATING A PERFORMANCE APPRAISAL SYSTEM UNDER CHAPTER 43 OF TITLE 5, UNITED STATES CODE, IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980) AND IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980), BOTH OF WHICH ISSUED AFTER THE ARBITRATOR'S DECISION HEREIN. IN THOSE DECISIONS THE AUTHORITY FOUND THAT PROPOSALS WHICH WOULD REQUIRE NEGOTIATIONS CONCERNING THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT AND CONTENT OF PERFORMANCE STANDARDS DIRECTLY INTERFERED 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, WERE NOT WITHIN THE DUTY TO BARGAIN. HOWEVER, THE AUTHORITY ALSO POINTED OUT IN THOSE DECISIONS THAT NOT ALL MATTERS PERTAINING TO THE DEVELOPMENT OF PERFORMANCE APPRAISAL SYSTEMS ARE OUTSIDE THE DUTY TO BARGAIN. THUS, PROPOSALS WHICH ARE OTHERWISE CONSISTENT WITH LAW AND REGULATION AND RELATE ONLY TO PARTICULAR ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS, APART FROM THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, ARE WITHIN THE DUTY TO BARGAIN. /5/ ACCORDINGLY, TO THE EXTENT THAT THE ARBITRATOR'S AWARD WOULD REQUIRE THE AGENCY, IN ESTABLISHING A PERFORMANCE APPRAISAL SYSTEM, TO NEGOTIATE WITH THE UNION ON THE ESTABLISHMENT OF PERFORMANCE STANDARDS AND THE IDENTIFICATION OF CRITICAL ELEMENTS, IT IS CONTRARY TO SECTION 7106 OF THE STATUTE. HOWEVER, TO THE EXTENT THAT THE AWARD WOULD REQUIRE NEGOTIATION ON VARIOUS OTHER ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS, IT DOES NOT VIOLATE SECTION 7106. FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE AWARD OF THE ARBITRATOR IS HEREBY MODIFIED TO READ AS FOLLOWS: (2) DISPUTE NEGOTIABLE, TO THE EXTENT CONSISTENT WITH APPLICABLE DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY. AS SO MODIFIED, THE AWARD IS SUSTAINED. ISSUED, WASHINGTON, D.C., JUNE 25, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ 5 U.S.C. 7122(A) PROVIDES AS FOLLOWS: SEC. 7122. EXCEPTIONS TO ARBITRAL AWARDS (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT-- (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS. /2/ ALTHOUGH THE UNION'S EXCEPTION WAS FILED AT THE TIME THE AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE INTERIM REGULATIONS. /3/ 5 U.S.C. 4302(A) PROVIDES FOR THE ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS BY EACH AGENCY. /4/ 5 U.S.C. 7106(A) PROVIDES, AS RELEVANT HEREIN, 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 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/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE COMMISSION, BOSTON REGIONAL OFFICE, 5 FLRA NO. 70(1981).