[ v07 p217 ]
07:0217(34)NG
The decision of the Authority follows:
7 FLRA No. 34
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3804
Union
and
FEDERAL DEPOSIT INSURANCE
CORPORATION, CHICAGO REGION, ILLINOIS
Agency
Case No. O-NG-254
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE), (5 U.S.C. 7101-7135). THE ISSUE PRESENTED IS THE
NEGOTIABILITY OF EIGHT UNION PROPOSALS. /1/
THE AGENCY CONTENDS, FOR TWO REASONS, THAT IT HAS NO DUTY TO BARGAIN
OVER ANY OF THE EIGHT PROPOSALS IN DISPUTE CONCERNING EMPLOYEE
PERFORMANCE APPRAISALS. THE AGENCY HAS ARGUED GENERALLY THAT, AS A
GOVERNMENT CORPORATION, IT IS NOT SUBJECT TO THE PERFORMANCE APPRAISAL
PROVISIONS OF CHAPTER 43 OF TITLE 5, UNITED STATES CODE, AS AMENDED BY
SECTION 203 OF THE CIVIL SERVICE REFORM ACT OF 1978 (CSRA). IN THAT
RESPECT, 5 U.S.C. 4301(1)(I) EXCLUDES GOVERNMENT CORPORATIONS FROM THE
DEFINITION OF EXECUTIVE AGENCIES SUBJECT TO 5 U.S.C.CHAPTER 43. THUS,
THE AGENCY STATES THAT, SINCE IT IS NOT REQUIRED BY LAW TO ESTABLISH A
PERFORMANCE APPRAISAL SYSTEM AS ENVISIONED BY 5 U.S.C. 4301-4305, TO THE
EXTENT THAT THE UNION'S PROPOSALS WOULD REQUIRE TO TO ESTABLISH SUCH A
SYSTEM, THEY ARE INCONSISTENT WITH 5 U.S.C. 4301(1)(I) AND ARE OUTSIDE
THE DUTY TO BARGAIN.
THE FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC) IS A GOVERNMENT
CORPORATION. SEE 12 U.S.C. 1811; 31 U.S.C. 856. /2/ BY EXCLUDING
GOVERNMENT CORPORATIONS FROM THE DEFINITION OF EXECUTIVE AGENCIES
SUBJECT TO CHAPTER 43 OF 5 U.S. CODE, 5 U.S.C. 4301(1)(I) NEITHER
REQUIRES SUCH CORPORATIONS TO ADOPT THE PRESCRIBED PERFORMANCE
APPRAISAL
SYSTEMS NOR PRECLUDES THEM FROM DOING SO. THUS, THE AGENCY'S ALLEGATION
THAT THE ESTABLISHMENT OF A PERFORMANCE APPRAISAL SYSTEM IS CONTRARY TO
LAW CANNOT BE SUSTAINED.
ADDITIONALLY, THE AGENCY HAS ARGUED GENERALLY THAT THE UNION'S
PROPOSED ARTICLE VI CONFLICTS WITH AN AGENCY POLICY, WHICH IS EMBODIED
IN A REGULATION ENTITLED "EMPLOYEE PERFORMANCE EVALUATION PROGRAM - A
HANDBOOK FOR RATING AND REVIEWING OFFICIALS," FOR WHICH THERE IS A
COMPELLING NEED AND, THEREFORE, IT HAS NO DUTY TO BARGAIN ON ANY OF THE
PROPOSALS IN DISPUTE HEREIN UNDER SECTION 7117(A)(2) OF THE STATUTE.
/3/ THE AGENCY STATES THAT THIS REGULATION IS SUPPORTED BY A COMPELLING
NEED FOR TWO REASONS: FIRST, THE REGULATION IS USED TO MONITOR EMPLOYEE
PERFORMANCE AND, AS SUCH AS, IS ESSENTIAL TO THE ACCOMPLISHMENT OF THE
AGENCY'S WORKLOAD; AND SECOND, ITS REGULATION IS NECESSARY TO INSURE
THE MAINTENANCE OF BASIC MERIT PRINCIPLES, I.E., THAT EMPLOYEES SHOULD
BE RETAINED ON THE BASIS OF THE ADEQUACY OF THEIR PERFORMANCE, AS
EXPRESSED IN 5 U.S.C. 2301(B)(6). /4/
SECTION 7117(A)(2) OF THE STATUTE PROVIDES THAT AGENCY REGULATIONS
FOR WHICH A COMPELLING NEED EXISTS, AS DETERMINED UNDER REGULATIONS
PRESCRIBED BY THE AUTHORITY, WILL BAR NEGOTIATION ON A CONFLICTING UNION
PROPOSAL. THE AUTHORITY'S ILLUSTRATIVE CRITERIA FOR DETERMINING THE
COMPELLING NEED FOR AGENCY RULES AND REGULATIONS UNDER SECTION
7117(A)(2) ARE PROVIDED IN SECTION 2424.11 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.11 (1981)) WHICH PROVIDES, AS RELEVANT HEREIN,
AS FOLLOWS:
SEC. 2424.11 ILLUSTRATIVE CRITERIA.
A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
ANY CONDITION OF
EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE OR REGULATION
MEETS ONE OR MORE OF THE
FOLLOWING ILLUSTRATIVE CRITERIA:
(A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
HELPFUL OR DESIRABLE, TO THE
ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
AGENCY OR PRIMARY NATIONAL
SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
AN EFFECTIVE AND
EFFICIENT GOVERNMENT.
(B) THE RULE OR REGULATION IS NECESSARY TO INSURE THE MAINTENANCE OF
BASIC MERIT
PRINCIPLES. AS INDICATED IN THE LEGISLATIVE HISTORY OF THE STATUTE,
THE COMPELLING NEED PROVISIONS OF THE STATUTE ARE MEANT TO INSURE THAT
BARGAINING PROPOSALS CONCERNING CONDITIONS OF EMPLOYMENT OF BARGAINING
UNIT EMPLOYEES, WHICH ARE OTHERWISE WITHIN THE DUTY TO BARGAIN, ARE
BARRED FROM NEGOTIATION DUE TO A CONFLICT WITH AGENCY RULES OR
REGULATIONS ONLY IF THE AGENCY INVOLVED DEMONSTRATES AND JUSTIFIES,
UNDER CRITERIA ESTABLISHED BY THE AUTHORITY, AN OVERRIDING NEED FOR THE
POLICIES REFLECTED IN THE RULES OR REGULATIONS TO BE UNIFORMLY APPLIED
THROUGHOUT THE AGENCY. /5/ HENCE, THE AUTHORITY'S ILLUSTRATIVE
CRITERION FOR DETERMINING COMPELLING NEED IN SECTION 2424.11(A) OF THE
RULES AND REGULATIONS, CONSISTENT WITH THE LEGISLATIVE INTENT, REQUIRES
AN AGENCY TO DEMONSTRATE THAT THE RULE OR REGULATION UPON WHICH IT
RELIES AS A BAR TO NEGOTIATION ON A CONFLICTING UNION PROPOSAL IS
"ESSENTIAL AS DISTINGUISHED FROM HELPFUL OR DESIRABLE" TO ACHIEVE
CERTAIN ENDS. THIS STANDARD OF ESSENTIALITY IS THE MEASURE UNDER THE
STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS OF WHETHER THE
NECESSITY CLAIMED FOR AN AGENCY REGULATION TO BAR NEGOTIATIONS ON A
CONFLICTING UNION PROPOSAL RISES TO THE LEVEL OF A COMPELLING NEED. /6/
LIKEWISE, THE AUTHORITY'S ILLUSTRATIVE CRITERION AT SECTION 2424.11(B)
OF THE RULES AND REGULATIONS REQUIRES AN AGENCY TO DEMONSTRATE THE
NECESSITY OF THE AGENCY REGULATION TO THE MAINTENANCE OF BASIC MERIT
PRINCIPLES.
THE AGENCY HEREIN HAS FAILED TO DEMONSTRATE THAT ITS REGULATION IS
ESSENTIAL, AS DISTINCT FROM MERELY HELPFUL OR DESIRABLE, IN THE
ACHIEVEMENT OF THE STATED OBJECTIVES SINCE IT DOES NOT INDICATE WHY THE
OBJECTIVE OF MONITORING EMPLOYEE PERFORMANCE COULD NOT BE ACHIEVED
THROUGH ANY MEANS OTHER THAN ITS PERFORMANCE RATING REGULATION. THUS,
IN FAILING TO DEMONSTRATE THAT, IN THE ABSENCE OF ITS REGULATION, THE
AGENCY WOULD BE UNABLE TO MONITOR EMPLOYEE PERFORMANCE, IT MUST BE
CONCLUDED THAT THE AGENCY HAS NOT MET ITS BURDEN OF SHOWING THAT ITS
REGULATION IS ESSENTIAL TO THE ACCOMPLISHMENT OF THAT OBJECTIVE.
SIMILARLY, THE AGENCY HAS, IN ESSENCE, ARGUED THAT THE OBJECTIVE OF
EVALUATING EMPLOYEES IS NECESSARY TO MAINTAIN THE MERIT PRINCIPLE IN
QUESTION, BUT HAS FAILED TO DEMONSTRATE THAT ITS REGULATION IS NECESSARY
AS THE ONLY MEANS OF ATTAINING THAT OBJECTIVE. BASED UPON THE
FOREGOING, IT MUST BE DETERMINED THAT THE AGENCY HAS NOT DEMONSTRATED
THAT ITS REGULATION IS SUPPORTED BY A COMPELLING NEED. ACCORDINGLY,
SUCH REGULATION DOES NOT BAR NEGOTIATION ON ANY OF THE UNION'S PROPOSALS
HEREIN. THE AUTHORITY WILL NOW CONSIDER THE NEGOTIABILITY OF EACH OF
THE SPECIFIC PROPOSALS.
UNION PROPOSAL 1
ARTICLE VI, SECTION 1. THE PARTIES AGREE THAT CRITICAL ELEMENTS OF A
POSITION USED FOR
PERFORMANCE APPRAISAL PURPOSES WILL BE BASED ONLY ON THE GRADE
CONTROLLING FACTORS OF A
POSITION FOR WHICH THERE WILL BE AN ACCURATE POSITION OR JOB
DESCRIPTION. SUCH CRITICAL
ELEMENTS FOR PERFORMANCE APPRAISALS WILL BE WEIGHTED IN DIRECT
PROPORTION TO THE RELATIVE
IMPORTANCE IN GRADE DETERMINATION. EACH EMPLOYEE WILL BE GIVEN A
COPY OF THE CRITICAL
ELEMENTS FOR THEIR POSITION AT THE BEGINNING OF THE APPRAISAL YEAR.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS
INCONSISTENT WITH SECTION 7106(A)(2) AND (B)(1) OF THE STATUTE AND/OR
CHAPTER 75 OF TITLE 5, U.S. CODE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE FIRST AND SECOND SENTENCES OF THE PROPOSAL
ARE INCONSISTENT WITH 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(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THE FIRST AND SECOND SENTENCES OF THE PROPOSAL BE, AND IT
HEREBY IS, DISMISSED. THE LAST SENTENCE OF THE PROPOSAL, HOWEVER, IS
NOT INCONSISTENT WITH SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE OR
CHAPTER 75 OF TITLE 5, U.S. CODE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 1981)),
IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
TO BY THE PARTIES) BARGAIN CONCERNING THE LAST SENTENCE OF THE PROPOSAL.
/7/
REASONS: THE AGENCY HAS ALLEGED THAT THE FIRST TWO SENTENCES OF THE
PROPOSAL ARE INCONSISTENT WITH SECTION 7106(A) OF THE STATUTE. THOSE
TWO SENTENCES WOULD REQUIRE THAT THE CRITICAL ELEMENTS OF A POSITION BE
BASED ONLY ON THE GRADE CONTROLLING FACTORS OF A POSITION IN DIRECT
PROPORTION TO THEIR RELATIVE IMPORTANCE IN GRADE DETERMINATION. IN THIS
RESPECT THE PROPOSAL IS IDENTICAL TO THE PROPOSAL WHICH WAS BEFORE THE
AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT
CORPORATION, MESSENA, NEW YORK, 5 FLRA NO. 14(1981), AND WHICH WAS HELD
TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF
THE STATUTE. /8/ THEREFORE, FOR THE REASONS SET FORTH IN DETAIL IN
SAINT LAWRENCE SEAWAY, THIS PORTION OF THE PROPOSAL MUST BE HELD TO BE
OUTSIDE THE DUTY TO BARGAIN.
ALTHOUGH THE LAST SENTENCE OF THE PRESENT PROPOSAL ALSO WAS CONTAINED
IN THE PROPOSAL IN SAINT LAWRENCE SEAWAY, THE AGENCY IN THAT CASE DID
NOT ALLEGE THAT THE SENTENCE WAS NOT NEGOTIABLE. IN THE PRESENT CASE,
HOWEVER, THE AGENCY HAS ALLEGED THAT THE LAST SENTENCE OF THE PROPOSAL
IS INCONSISTENT WITH CHAPTER 75 OF TITLE 5, UNITED STATES CODE /9/ AND
SECTION 7106(A)(2)(A) AND (B)(1) /10/ OF THE STATUTE BECAUSE IT WOULD
PROHIBIT THE AGENCY FROM TAKING ADVERSE OR DISCIPLINARY ACTION AGAINST
AN EMPLOYEE EXCEPT IN CONNECTION WITH AN ANNUAL PERFORMANCE APPRAISAL.
ON ITS FACE, THE LAST SENTENCE OF THE PROPOSAL PRESCRIBES ONLY WHEN
EMPLOYEES SHALL BE GIVEN A COPY OF THE CRITICAL ELEMENTS FOR THEIR
POSITIONS. NOTHING IN THAT SENTENCE OR THE UNION'S ARGUMENTS WITH
RESPECT TO THE PROPOSAL IS CONCERNED WITH WHEN THE AGENCY MAY DISCIPLINE
AN EMPLOYEE FOR UNACCEPTABLE PERFORMANCE. THUS, THE AGENCY HAS
MISCONSTRUED THE PROPOSAL, AND SINCE THE EXPLICIT LANGUAGE OF THE
PROPOSAL MAKES IT CLEAR THAT THE PROPOSAL DOES NOT CONFLICT WITH ANY
STATUTORILY PROTECTED MANAGEMENT RIGHTS, THE AGENCY'S ARGUMENTS THAT THE
PROPOSAL IS INCONSISTENT WITH THE STATUTORY PROVISIONS CITED ABOVE
CANNOT BE SUSTAINED.
UNION PROPOSAL 2
ARTICLE VI, SECTION 2. STANDARDS USED FOR MEASUREMENT OF PERFORMANCE
FOR CRITICAL ELEMENTS
OF THE JOB WILL BE FAIR, OBJECTIVE, REASONABLE AND DIRECTLY RELATED
TO AN EMPLOYEE'S OFFICIAL
POSITION. STANDARDS OF PERFORMANCE WILL MAKE ALLOWANCES FOR FACTORS
BEYOND THE CONTROL OF THE
EMPLOYEE. SUCH STANDARDS WILL BE IN WRITING AND GIVEN TO EMPLOYEES
AT THE BEGINNING OF THE
APPRAISAL YEAR.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(2)(A) AND (B)(1) OF THE STATUTE AND/OR CHAPTER 75 OF
TITLE 5, U.S. CODE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSAL IS NOT INCONSISTENT WITH
SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE OR CHAPTER 75 OF TITLE 5,
U.S. CODE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING THE PROPOSAL. /11/
REASONS: IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA
NO. 120(1980), THE AUTHORITY HELD THAT A UNION COULD NEGOTIATE CRITERIA
FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT HAS
ESTABLISHED. THAT IS, THE AUTHORITY HELD THAT A PROPOSAL THAT
PERFORMANCE STANDARDS BE "FAIR AND EQUITABLE" SIMPLY ESTABLISHED A
GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
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 SUCH PERFORMANCE STANDARDS TO
HIM. BASED UPON AFGE, LOCAL 32, THE AUTHORITY SUBSEQUENTLY DETERMINED
THAT A PROPOSAL REQUIRING THAT THE AGENCY DEVELOP REASONABLE
PERFORMANCE
STANDARDS WAS SIMILARLY WITHIN THE DUTY TO BARGAIN. AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE
COMMISSION, BOSTON REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA NO. 92(1980).
THERE IS NO MATERIAL DIFFERENCE BETWEEN THE PROPOSAL HERE AND THOSE
HELD TO BE WITHIN THE DUTY TO BARGAIN IN AFGE, LOCAL 32 AND AFGE, LOCAL
3656, SUPRA. THAT IS, THE PROPOSAL HERE WOULD LIKEWISE ESTABLISH A
GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
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 SUCH PERFORMANCE STANDARDS TO
HIM. SUCH REVIEW BY AN ARBITRATOR WOULD NOT RESULT IN THE SUBSTITUTION
OF THE ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY; IT WOULD SIMPLY
DETERMINE WHETHER THE PERFORMANCE STANDARD ESTABLISHED BY MANAGEMENT
WAS
APPLIED TO THE GRIEVANT CONSISTENT WITH THE REQUIREMENTS OF THE
PROPOSAL. ACCORDINGLY, BASED UPON THE PRECEDENT CITED ABOVE AND FOR THE
REASONS MORE FULLY STATED THEREIN, THE FIRST SENTENCE OF THE PROPOSAL IS
WITHIN THE DUTY TO BARGAIN.
THE SECOND SENTENCE OF THE PROPOSAL PROVIDES THAT PERFORMANCE
STANDARDS WILL MAKE ALLOWANCES FOR FACTORS BEYOND THE CONTROL OF THE
EMPLOYEE. AS ALREADY NOTED, IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C., SUPRA, THE AUTHORITY HELD THAT A UNION COULD NEGOTIATE
CRITERIA FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT
HAS ESTABLISHED. LIKEWISE, IN THE PRESENT CASE, THE SECOND SENTENCE OF
THE PROPOSAL MERELY CONSTITUTES A MORE SPECIFIC STATEMENT OF THE "FAIR
AND EQUITABLE" CRITERION, AND DOES NOT IMPOSE ON THE AGENCY A PARTICULAR
REQUIREMENT AS TO THE QUANTITY, QUALITY, OR TIMELINESS OF WORK
PRODUCTION. THAT IS, THIS PORTION OF THE PROPOSAL WOULD APPLY ONLY IN
THE CONTEXT OF THE APPLICATION TO AN EMPLOYEE OF PERFORMANCE STANDARDS
ESTABLISHED BY MANAGEMENT. ACCORDINGLY, THE SECOND SENTENCE IS WITHIN
THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE. /12/
REGARDING THE THIRD SENTENCE OF THE PROPOSAL, THE AGENCY REITERATED
ITS ARGUMENT CONCERNING UNION PROPOSAL 1: THAT IT WOULD PREVENT THE
TAKING OF DISCIPLINARY ACTION AGAINST AN EMPLOYEE EXCEPT IN CONNECTION
WITH AN ANNUAL PERFORMANCE APPRAISAL. ON ITS FACE, HOWEVER, THAT
SENTENCE PRESCRIBES WHEN COPIES OF PERFORMANCE STANDARDS WILL BE GIVEN
TO EMPLOYEES AND THAT THEY WILL BE IN WRITING. NOTHING IN THE SENTENCE
SPEAKS TO THE ISSUE OF WHEN THE AGENCY MAY ACTUALLY DISCIPLINE AN
EMPLOYEE FOR UNACCEPTABLE PERFORMANCE. THUS, THE AGENCY HAS
MISCONSTRUED THE PROPOSAL WHICH DOES NOT IN ANY WAY PROHIBIT THE
IMPOSITION OF DISCIPLINE, AND THE AGENCY'S ARGUMENTS THAT THE SENTENCE
IS INCONSISTENT WITH CHAPTER 75 OF TITLE 5, U.S. CODE OR INTERFERES WITH
THE RIGHTS OF MANAGEMENT UNDER SECTION 7106(A)(2)(A) OR (B)(1) OF THE
STATUTE CANNOT BE SUSTAINED.
UNION PROPOSAL 3
ARTICLE VI, SECTION 3. EMPLOYEE'S ANNUAL PERFORMANCE RATING WILL BE
THE RESULT OF THE
APPLICATION OF STANDARDS OF PERFORMANCE TO THE APPROPRIATE CRITICAL
ELEMENTS OF A POSITION
ESTABLISHED IN ACCORDANCE WITH SECTION 1 AND 2 ABOVE. ALL
PERFORMANCE APPRAISALS SHALL BE IN
WRITING, GIVEN TO THE EMPLOYEE AND STATE IN DETAIL THE BASIS FOR THE
RATING. THE EMPLOYEE
SHALL BE GIVEN ADEQUATE OPPORTUNITY TO IMPROVE PERFORMANCE, NOT
LIMITED TO THE STATUTORY
NOTICE PERIOD, AND MANAGEMENT WILL MAKE A SINCERE EFFORT TO ASSIST
THE EMPLOYEE IN IMPROVING
PERFORMANCE TO THE LEVEL REQUIRED. WHEN EMPLOYEES ARE ALLEGED TO BE
PERFORMING AT AN
UNACCEPTABLE LEVEL, THE EMPLOYEES WILL BE NOTIFIED IN WRITING OF
THEIR UNACCEPTABLE
PERFORMANCE, WHAT ACTION MUST BE TAKEN BY THEM TO IMPROVE THEIR
PERFORMANCE TO AN ACCEPTABLE
LEVEL, AND WHAT ASSISTANCE WILL BE PROVIDED BY THE EMPLOYER TO HELP
THE EMPLOYEE TO IMPROVE
HER OR HIS PERFORMANCE. THE EMPLOYEES WILL BE GIVEN 90 DAYS IN WHICH
TO BRING THEIR
PERFORMANCE UP TO AN ACCEPTABLE LEVEL. AT THE END OF THE 90 DAY
PERIOD, EMPLOYEES WILL BE
RE-EVALUATED AND INFORMED IN WRITING OF THEIR PERFORMANCE. IF THE
PERFORMANCE HAS NOT
IMPROVED AND CORRECTIVE ACTION IS NECESSARY, THE EMPLOYER WILL GIVE
THE EMPLOYEES A WRITTEN
NOTICE OF THE PROPOSED ACTION SETTING FORTH IN DETAIL THE BASIS FOR
THE ACTION. SUCH NOTICES
WILL BE GIVEN TO THE EMPLOYEES AND THE UNION 30 DAYS IN ADVANCE OF
THE PROPOSED
ACTION. EMPLOYEES WILL HAVE 15 WORKDAYS IN WHICH TO RESPOND TO THE
PROPOSED ACTION.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(2)(A) AND (B)(1) OF THE STATUTE AND/OR CHAPTER 75 OF
TITLE 5, U.S. CODE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 3 IS NOT INCONSISTENT WITH
SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE OR CHAPTER 75 OF TITLE 5,
U.S. CODE EXCEPT TO THE EXTENT THAT IT INCORPORATES PORTIONS OF UNION
PROPOSAL 1 PREVIOUSLY DETERMINED TO BE OUTSIDE THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING THE PROPOSAL TO THAT EXTENT. /13/ IT IS FURTHER ORDERED THAT
THE PETITION FOR REVIEW OF UNION PROPOSAL 3, TO THE EXTENT IT
INCORPORATES PORTIONS OF UNION PROPOSAL 1 WHICH ARE NOT WITHIN THE DUTY
TO BARGAIN, BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE AGENCY'S CLAIM THAT THIS PROPOSAL IS NOT WITHIN THE
DUTY TO BARGAIN IS A REITERATION OF ITS ARGUMENT CONCERNING UNION
PROPOSAL 1 TO THE EFFECT THAT THE PROPOSAL WOULD PREVENT TAKING
DISCIPLINARY ACTION AGAINST AN EMPLOYEE EXCEPT IN CONNECTION WITH AN
ANNUAL PERFORMANCE APPRAISAL. IN THIS REGARD, THE AGENCY HAS
MISINTERPRETED THE PROPOSAL. ON ITS FACE, THE FIRST SENTENCE OF THE
PROPOSAL MERELY CONCERNS THE DURATION OF THE PERFORMANCE APPRAISAL
CYCLE. IN THAT RESPECT, THE PROPOSAL WOULD REQUIRE THAT THE ANNUAL
PERFORMANCE APPRAISAL RESULT FROM THE APPLICATION OF PERFORMANCE
STANDARDS TO EACH ELEMENT OF AN EMPLOYEE'S JOB, INCLUDING CRITICAL
ELEMENTS. NOTHING IN THAT LANGUAGE OR ANY PART OF THIS PROPOSAL SPEAKS
TO THE ISSUE OF WHEN THE AGENCY MAY DISCIPLINE AN EMPLOYEE FOR
UNACCEPTABLE PERFORMANCE. ACCORDINGLY, THE PROPOSAL WOULD NOT PREVENT
THE TAKING OF DISCIPLINARY ACTION BUT IS CONCERNED WITH PROCEDURAL
MATTERS WHICH ARE WITHIN THE DUTY TO BARGAIN UNDER SECTION 1706(B)(2) OF
THE STATUTE. FINALLY, THE FIRST SENTENCE OF UNION PROPOSAL 3 PROVIDES
THAT CRITICAL ELEMENTS AND PERFORMANCE STANDARDS SHALL BE ESTABLISHED IN
ACCORDANCE WITH SECTION 1, I.E., HEREIN UNION PROPOSAL 1, SUPRA. TO THE
EXTENT THAT UNION PROPOSAL 1 HAS BEEN DETERMINED TO BE OUTSIDE THE DUTY
TO BARGAIN UNDER SECTION 7106 OF THE STATUTE, UNION PROPOSAL 3 IS
LIKEWISE OUTSIDE THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE. THUS,
THE AGENCY'S ARGUMENTS THAT THE PROPOSAL IS INCONSISTENT WITH CHAPTER 75
OF TITLE 5, U.S. CODE OR INTERFERES WITH THE RIGHTS OF MANAGEMENT UNDER
SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE CANNOT BE SUSTAINED,
EXCEPT TO THE EXTENT THAT IT INCORPORATES THE PORTIONS OF UNION PROPOSAL
1 WHICH HAVE BEEN HELD TO BE OUTSIDE THE DUTY TO BARGAIN.
UNION PROPOSAL 4
ARTICLE VI, SECTION 4. THERE SHALL BE NO SECRET STUDIES BEARING ON
PERFORMANCE
APPRAISALS. ALL STUDIES CONDUCTED BY THE EMPLOYER WILL BE CONDUCTED
ON TYPICAL WORKERS UNDER
NORMAL WORKING CONDITIONS.
THE UNION SHALL PARTICIPATE ON AN EQUAL BASIS IN THE DEVELOPMENT OR
REVISION OF ALL
MEASURES OF PERFORMANCE AND STUDIES INCLUDING BUT NOT LIMITED TO
SELECTION OF TYPICAL WORKERS
AND CONDITIONS. IF AGREEMENT CANNOT BE REACHED, FORMAL NEGOTIATIONS
WILL BE CONVENED. ANY
IMPASSES WILL BE REFERRED TO THE FEDERAL SERVICE IMPASSES PANEL FOR
RESOLUTION.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS
INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE, AS
ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE FIRST PARAGRAPH OF THE UNION'S PROPOSAL
CONCERNS PROCEDURES MANAGEMENT WILL OBSERVE IN DEVELOPING PERFORMANCE
STANDARDS, WHICH ARE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2)
OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING THE FIRST PARAGRAPH (I.E" THE FIRST TWO
SENTENCES) OF THE PROPOSAL. /14/ THE SECOND PARAGRAPH OF THE UNION'S
PROPOSAL IS INCONSISTENT WITH SECTION 1706(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(1981)), IT IS ORDERED THAT THE
PETITION FOR REVIEW OF THE SECOND PARAGRAPH (I.E., THE LAST THREE
SENTENCES) OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE AGENCY CLAIMS THAT THE PROPOSAL WOULD INTERFER WITH THE
AGENCY'S RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE, TO THE EXTENT IT WOULD REQUIRE
NEGOTIATIONS ON THE ESTABLISHMENT AND CONTENT OF PERFORMANCE STANDARDS.
THE FIRST PARAGRAPH OF THE PROPOSAL, HOWEVER, MERELY WOULD REQUIRE
THAT "STUDIES" RELATED TO PERFORMANCE APPRAISAL BE CONDUCTED ON TYPICAL
WORKERS UNDER NORMAL WORKING CONDITIONS AND THAT THEY NOT BE SECRET.
NOTHING IN THAT PARAGRAPH WOULD PREVENT THE AGENCY FROM IDENTIFYING A
PARTICULAR CRITICAL ELEMENT OR ESTABLISHING A PARTICULAR PERFORMANCE
STANDARD PURSUANT TO ITS RESERVED RIGHTS. RATHER, THE PROPOSAL MERELY
CONCERNS MATTERS OF A PROCEDURAL NATURE RELATING TO THE DEVELOPMENT OF A
PERFORMANCE APPRAISAL SYSTEM. THE AUTHORITY STATED IN ITS DECISION IN
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980) (AT PAGE 12 OF THE DECISION)
THAT "TO THE EXTENT CONSISTENT WITH LAW AND REGULATION, THE PROCEDURAL
CONTEXT OF PERFORMANCE EVALUATION, INCLUDING PROCEDURES RELATED TO THE
IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF PERFORMANCE
STANDARDS . . . ARE SUBJECT TO BARGAINING." THUS, THE FIRST PARAGRAPH
OF THIS PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
TURNING TO THE SECOND PARAGRAPH OF THE PROPOSAL, IT IS IDENTICAL TO A
PROPOSAL WHICH THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN IN
SAINT LAWRENCE SEAWAY, 5 FLRA NO. 14(1981) (AT PAGES 7-8 OF THE
DECISION). IN THAT DECISION, WE HELD THAT SINCE THIS SORT OF PROPOSAL
WOULD REQUIRE BARGAINING TO IMPASSE WITH THE UNION AS AN EQUAL PARTNER
CONCERNING THE PARTICULAR PERFORMANCE STANDARDS TO BE ESTABLISHED FOR
EMPLOYEES IN THE BARGAINING UNIT, IT WAS INCONSISTENT WITH MANAGEMENT'S
RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE. ACCORDINGLY, THE SECOND PARAGRAPH
OF THE PROPOSAL HERE IN DISPUTE IS OUTSIDE THE DUTY TO BARGAIN.
UNION PROPOSALS 5 AND 6
ARTICLE VI, SECTION 5. ALL INFORMATION INCLUDING ANY OBJECTIONS TO
DATA DERIVED FROM WORK
STUDIES WILL BE PROVIDED TO THE UNION WITHIN FIVE DAYS OF ISSUANCE.
ARTICLE VI, SECTION 8. A JOINT LABOR-MANAGEMENT COMMITTEE ON WHICH
THE UNION HAS EQUAL
REPRESENTATION, SHALL BE FORMED TO REVIEW, EVALUATE AND MAKE
RECOMMENDATIONS FOR CHANGES IN
THE DEVELOPMENT AND OPERATION OF THE PERFORMANCE APPRAISAL SYSTEM, ON
AN ONGOING AND PERIODIC
BASIS. IMPASSES WILL BE RESOLVED BY THE SAME PROCEDURES AS UTILIZED
FOR MID-TERM BARGAINING.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSALS ARE WITHIN
THE DUTY TO BARGAIN OR, AS ALLEGED BY THE AGENCY, ARE INCONSISTENT WITH
SECTION 7106 OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSALS ARE NOT INCONSISTENT
WITH SECTION 7106 OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSALS 5 AND 6. /15/
REASONS: THE AGENCY ASSERTS THAT UNION PROPOSALS 5 AND 6 ARE OUTSIDE
THE DUTY TO BARGAIN SINCE THEY ARE "INEXTRICABLY LINKED TO OR FLOW FROM
(PROPOSALS 1 THROUGH 4) WHICH ARE ON THEIR FACE NONNEGOTIABLE." THIS
CONTENTION CANNOT BE SUSTAINED.
AS PREVIOUSLY STATED IN CONNECTION WITH PROPOSALS 1 THROUGH 4, TO THE
EXTENT CONSISTENT WITH LAW AND REGULATION, THE PROCEDURAL CONTEXT OF
PERFORMANCE EVALUATION, INCLUDING PROCEDURES RELATED TO THE
IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF PERFORMANCE
STANDARDS, IS WITHIN THE DUTY TO BARGAIN. BUREAU OF THE PUBLIC DEBT,
SUPRA AT 12. UNION PROPOSAL 5 CONCERNS PROVIDING THE UNION WITH DATA
DERIVED FROM WORK STUDIES, AND NOTHING IN THE RECORD INDICATES THAT THE
"OBJECTIONS" REFERRED TO WOULD INCLUDE WHOLLY INTRA-MANAGEMENT MATTERS
WHICH ARE ESSENTIAL ELEMENTS IN MANAGEMENT'S DECISION REGARDING THE
EXERCISE OF ITS MANAGEMENT RIGHTS. UNION PROPOSAL 5, THEREFORE, IS A
NEGOTIABLE PROCEDURE.
UNION PROPOSAL 6 WOULD CREATE A JOINT LABOR-MANAGEMENT COMMITTEE WITH
THE LIMITED POWER TO RECOMMEND CHANGES IN THE PERFORMANCE APPRAISAL
SYSTEM. IN THIS CONTEXT, THE LAST SENTENCE OF THE PROPOSAL INCORPORATES
BY GENERAL REFERENCE PROCEDURES TO RESOLVE INTRA-COMMITTEE IMPASSES
WHICH MIGHT ARISE PRIOR TO THE COMMITTEE'S MAKING A RECOMMENDATION TO
THE AGENCY. THE SPECIFIC PROVISIONS OF THESE INCORPORATED PROCEDURES
ARE NOT IN THE RECORD BUT ARE, FOR PURPOSES OF THIS DECISION, ASSUMED TO
BE CONSISTENT WITH THE STATUTE AND THEREFORE DISTINGUISHABLE FROM THE
REQUIREMENTS FOR FORMAL NEGOTIATIONS AND IMPASSE RESOLUTION SET FORTH IN
THE SECOND PARAGRAPH OF UNION PROPOSAL 4. BY ITS TERMS, THIS PROPOSAL
DOES NOT CONCERN OR INTERFERE WITH THE AGENCY'S RIGHTS UNDER SECTION
1706. ON THE CONTRARY, THE AGENCY WOULD RETAIN ITS DISCRETION TO ACCEPT
OR REJECT ANY OF THE COMMITTEE'S RECOMMENDATIONS. SEE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND DEPARTMENT OF THE AIR
FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD AIR
FORCE BASE, FLORIDA, 6 FLRA NO. 105 (1981), AT 7.
ACCORDINGLY, BASED UPON THE FOREGOING, UNION PROPOSAL 6 CONCERNS A
PROCEDURE WHICH THE PARTIES WILL OBSERVE IN CONNECTION WITH THE
DEVELOPMENT AND OPERATION OF THE AGENCY'S PERFORMANCE APPRAISAL SYSTEM.
AS SUCH, UNION PROPOSAL 6 IS WITHIN THE DUTY TO BARGAIN.
UNION PROPOSAL 7
ARTICLE VI, SECTION 6. ANY DISPUTES UNDER THIS ARTICLE MAY BE
RESOLVED UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE INCLUDING BUT NOT LIMITED TO:
1. CHALLENGES TO THE CRITICAL ELEMENTS OF A POSITION.
2. THE MEASURE OF PERFORMANCE AS SET FORTH IN PERFORMANCE STANDARDS.
3. THE PERFORMANCE APPRAISAL ITSELF.
4. ANY DISPUTED ACTION TAKEN AS A RESULT OF A PERFORMANCE APPRAISAL
WILL BE TREATED AS ANY
OTHER DISCIPLINARY MATTER.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 7 IS, AS ALLEGED BY THE
AGENCY, CONTRARY TO THE STATUTE.
OPINION
CONCLUSION AND ORDER: SUBSECTIONS 1 AND 2 OF THE UNION'S PROPOSAL
ARE INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE AND,
THEREFORE, ARE NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW AS TO
SUBSECTIONS 1 AND 2 OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
HOWEVER, SUBSECTIONS 3 AND 4 ARE NOT INCONSISTENT WITH LAW. RATHER,
THEY RELATE TO APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED
BY THE EXERCISE OF MANAGEMENT'S RIGHTS WITHIN THE MEANING OF SECTION
7106(B)(3) OF THE STATUTE. THEREFORE, THEY ARE WITHIN THE DUTY TO
BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING SUBSECTIONS 3 AND 4. /16/
REASONS: UNION PROPOSAL 7 IS THE IDENTICAL PROPOSAL CONSIDERED BY
THE AUTHORITY IN SAINT LAWRENCE SEAWAY, SUPRA. IN THAT CASE,
SUBSECTIONS 1, 2 AND 4 WERE BEFORE THE AUTHORITY FOR DECISION. THE
AUTHORITY DETERMINED WITH RESPECT TO SUBSECTIONS 1 AND 2 THAT, BY IN
EFFECT PROVIDING FOR ARBITRAL REVIEW OF THE AGENCY'S IDENTIFICATION OF
CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE STANDARDS, THEY WERE
INCONSISTENT WITH MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND ASSIGN
WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE, AND, THEREFORE,
WERE OUTSIDE THE DUTY TO BARGAIN. SUBSECTION 4 OF THE PROPOSAL,
HOWEVER, WAS HELD TO BE WITHIN THE DUTY TO BARGAIN UNDER SECTION
7106(B)(3) OF THE STATUTE SINCE IT RELATES TO THE APPLICATION OF
PERFORMANCE STANDARDS TO EMPLOYEES. THUS, FOR THE REASONS FULLY SET
FORTH IN SAINT LAWRENCE SEAWAY, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 7
HEREIN ARE OUTSIDE, AND SUBSECTION 4 IS WITHIN, THE DUTY TO BARGAIN.
SUBSECTION 3 OF UNION PROPOSAL 7 WOULD ALLOW GRIEVANCES UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE REGARDING A "PERFORMANCE APPRAISAL
ITSELF." THE AUTHORITY CONSISTENTLY HAS HELD THAT 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, WITHOUT CONFLICTING WITH MANAGEMENT'S RIGHT
TO IDENTIFY AND ESTABLISH SUCH ELEMENTS AND STANDARDS. SEE, E.G., AFGE,
LOCAL 32, 3 FLRA NO. 120 (1980); SAINT LAWRENCE SEAWAY, 5 FLRA NO.
14(1981). IN THIS CONNECTION, A PERFORMANCE APPRAISAL CONSTITUTES THE
APPLICATION OF THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
ESTABLISHED BY MANAGEMENT TO THE EMPLOYEE. THE CHARACTERIZATION OF THE
EMPLOYEE'S PERFORMANCE, PURSUANT TO THE APPRAISAL, CONSTITUTES THE
REQUISITE EFFECT. THUS, A GRIEVANCE BROUGHT UNDER SUBSECTION 3 OF THE
PROPOSAL WOULD ONLY RELATE TO THE APPLICATION OF MANAGEMENT'S CRITICAL
ELEMENTS AND PERFORMANCE STANDARDS TO THE EMPLOYEE (I.E., THE
PERFORMANCE APPRAISAL) BUT NOT TO THE ESTABLISHMENT OF THE UNDERLYING
ELEMENTS AND STANDARDS. THAT IS, REVIEW BY AN ARBITRATOR WOULD NOT
PRECLUDE THE AGENCY FROM INITIALLY IDENTIFYING ELEMENTS OR DETERMINING
THE CONTENT OF STANDARDS, NOR WOULD IT RESULT IN THE SUBSTITUTION OF THE
ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY AND THE SETTING OF NEW
ELEMENTS OR STANDARDS TO THE EMPLOYEE THROUGH A PERFORMANCE APPRAISAL
COMPLIED WITH THE APPLICABLE REQUIREMENTS OF LAW, REGULATION OR THE
PARTIES' AGREEMENT. /17/ ACCORDINGLY, SUBSECTION 3 OF UNION PROPOSAL 7
IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE.
UNION PROPOSAL 8
ARTICLE VI, SECTION 9. ALL UNION PARTICIPATION UNDER THIS ARTICLE
SHALL BE IN A DUTY
STATUS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS, AS ALLEGED
BY THE AGENCY, INCONSISTENT WITH THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSAL IS NOT INCONSISTENT WITH
THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING UNION PROPOSAL 8. /18/
REASONS: THE PROPOSAL, IN EFFECT, WOULD AUTHORIZE OFFICIAL TIME TO
UNION REPRESENTATIVES PARTICIPATING IN ACTIVITIES WITH MANAGEMENT
OFFICIALS CONCERNING THE PERFORMANCE APPRAISAL SYSTEM. SECTION 7131(D)
OF THE STATUTE PROVIDES THAT, WITH CERTAIN EXCEPTIONS NOT APPLICABLE
HERE, ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE SHALL BE
GRANTED OFFICIAL TIME IN ANY AMOUNT THE AGENCY AND UNION AGREE TO BE
REASONABLE, NECESSARY, AND IN THE PUBLIC INTEREST. THE PROVISION
REGARDING OFFICIAL TIME IN THE VERSION OF THE BILL REPORTED OUT OF THE
SENATE-HOUSE CONFERENCE COMMITTEE, WHICH WAS ENACTED AND SIGNED INTO LAW
AS SECTION 7131 OF THE STATUTE, WAS IDENTICAL TO THAT IN THE BILL (H.R.
11280) REPORTED OUT OF THE HOUSE COMMITTEE. /19/ THE COMMITTEE REPORT
/20/ WHICH ACCOMPANIED THE HOUSE COMMITTEE BILL STATED:
SECTION (7131(D)) MAKES ALL OTHER MATTERS CONCERNING OFFICIAL TIME
FOR UNIT EMPLOYEES
ENGAGED IN LABOR-MANAGEMENT RELATIONS ACTIVITY SUBJECT TO NEGOTIATION
BETWEEN THE AGENCY AND
THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION INVOLVED.
THEREFORE, CONSISTENT WITH THE EXPLICIT LANGUAGE OF SECTION 7131(D)
OF THE STATUTE AND ITS RELEVANT LEGISLATIVE HISTORY, SINCE THE PROPOSAL
AT ISSUE HERE CONCERNS OFFICIAL TIME FOR NEGOTIABLE LABOR-MANAGEMENT
RELATIONS ACTIVITY, IT IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
7131(D) OF THE STATUTE. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2823 AND VETERANS ADMINISTRATION, REGIONAL OFFICE,
CLEVELAND, OHIO, 2 FLRA 3(1979).
ISSUED, WASHINGTON, D.C., NOVEMBER 19, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ ON APRIL 30, 1981, THE AUTHORITY ISSUED A DECISION AND ORDER ON
MOTION TO DISMISS, 5 FLRA NO. 71, WHICH GRANTED THE AGENCY'S MOTION TO
DISMISS 27 UNION PROPOSALS IN THIS CASE BUT WHICH DENIED THE MOTION AS
TO THE EIGHT UNION PROPOSALS CONSIDERED HEREIN.
/2/ 12 U.S.C. 1811 PROVIDES AS FOLLOWS:
SEC. 1811. CREATION OF CORPORATION; DUTIES
THERE IS CREATED A FEDERAL DEPOSIT INSURANCE CORPORATION (HEREINAFTER
REFERRED TO AS THE
"CORPORATION") WHICH SHALL INSURE, AS HEREINAFTER PROVIDED, THE
DEPOSITS OF ALL BANKS WHICH
ARE ENTITLED TO THE BENEFITS OF INSURANCE UNDER THIS CHAPTER, AND
WHICH SHALL HAVE THE POWERS
HEREINAFTER GRANTED.
31 U.S.C. 856 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 856. DEFINITION OF "MIXED-OWNERSHIP GOVERNMENT CORPORATIONS"
AS USED IN THIS CHAPTER THE TERM "MIXED-OWNERSHIP GOVERNMENT
CORPORATIONS" MEANS . . . (5)
FEDERAL DEPOSIT INSURANCE CORPORATION(.)
/3/ SECTION 7117(A)(2) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
. . . .
(A)(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL
LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY
AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE
AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS
DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.
/4/ 5 U.S.C. 2301(B)(6) PROVIDES AS FOLLOWS:
SEC. 2301. MERIT SYSTEM PRINCIPLES
. . . .
(B) FEDERAL PERSONNEL MANAGEMENT SHOULD BE IMPLEMENTED CONSISTENT
WITH THE FOLLOWING MERIT
SYSTEM PRINCIPLES:
. . . .
(6) EMPLOYEES SHOULD BE RETAINED ON THE BASIS OF THE ADEQUACY OF
THEIR PERFORMANCE,
INADEQUATE PERFORMANCE SHOULD BE CORRECTED, AND EMPLOYEES SHOULD BE
SEPARATED WHO CANNOT OR
WILL NOT IMPROVE THEIR PERFORMANCE TO MEET REQUIRED STANDARDS.
/5/ SEE H.R. REP. NO. 95-1403, 95TH CONG.,2D SESS. 51(1978).
/6/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2875
AND DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, SOUTHEAST FISHERIES
CENTER, MIAMI LABORATORY, FLORIDA, 5 FLRA NO. 55(1981), AT PAGE 7.
/7/ IN DECIDING THAT A PROPOSAL OR ANY PART THEREOF IS WITHIN THE
DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE
MERITS THEREOF.
/8/ SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE PROVIDES 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(.)
/9/ CHAPTER 75 OF TITLE 5, UNITED STATES CODE GENERALLY PROVIDES FOR
ADVERSE ACTIONS AGAINST EMPLOYEES. THE AGENCY DID NOT, HOWEVER, ADVERT
TO A SPECIFIC SECTION WITHIN THAT CHAPTER.
/10/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
/11/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/12/ SECTION 7106(B)(3) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/13/ IN DECIDING THAT THE PROPOSAL IS, IN PART, WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS
THEREOF.
/14/ IN DECIDING THAT THE FIRST PARAGRAPH OF THE PROPOSAL IS WITHIN
THE DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO
THE MERITS THEREOF.
/15/ IN DECIDING THAT UNION PROPOSAL 5 AND 6 ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THEIR MERITS.
/16/ IN DECIDING THAT SUBSECTIONS 3 AND 4 ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS
THEREOF.
/17/ SEE STATEMENT OF REPRESENTATIVE UDALL AT 124 CONG. REC. H 9634
(DAILY ED. SEPT. 13, 1978):
THE NEW LANGUAGE PRESERVES MANAGEMENT'S RIGHT TO MAKE THE FINAL
DECISIONS IN THESE
ADDITIONAL AREAS, IN ACCORDANCE WITH APPLICABLE LAWS, INCLUDING OTHER
PROVISIONS OF CHAPTER 71
OF TITLE 5. FOR EXAMPLE, MANAGEMENT HAS THE RESERVED RIGHT TO MAKE
THE FINAL DECISION TO
"REMOVE" AN EMPLOYEE, BUT THAT DECISION MUST BE MADE IN ACCORDANCE
WITH APPLICABLE LAWS AND
PROCEDURES, AND THE PROVISIONS OF ANY APPLICABLE COLLECTIVE
BARGAINING AGREEMENT. THE
RESERVED MANAGEMENT RIGHT TO "REMOVE" WOULD IN NO WAY AFFECT THE
EMPLOYEE'S RIGHT TO APPEAL
THE DECISION THROUGH STATUTORY PROCEDURES OR, IF APPLICABLE, THROUGH
THE PROCEDURES SET FORTH
IN A COLLECTIVE BARGAINING AGREEMENT.
/18/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/19/ H.R. 11280, 95TH CONG.,2D SESS. 7132(1978). SEE
H.R. REP. NO. 95-1403, 95TH CONG.,2D SESS. 288-289(1978); H.R. REP.
NO. 95-1717, 95TH CONG.,2D SESS. 111-112(1978). SEE ALSO 124
CONG.REC.H. 9631 (DAILY ED. SEPT. 13, 1978).
/20/ H.R. REP. NO. 95-1403, 95TH CONG.,2D SESS. 59(1978).