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16:0313(49)NG
The decision of the Authority follows:
16 FLRA No. 49
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 943
Union
and
DEPARTMENT OF THE AIR FORCE,
KEESLER AIR FORCE BASE, MISSISSIPPI
Agency
Case No. O-NG-581
DECISION AND ORDER ON NEGOTIABILITY ISSUES
This case comes before the Authority pursuant to section
7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute
(the Statute) and presents issues concerning the negotiability of the
following proposal which relates to the Agency's Performance Appraisal
Program.
Section A. The Performance Appraisal program shall be
implemented for bargaining unit employees in compliance with
Chapter 43, Title 5 U.S.C., Chapter 430 of the Federal Personnel
Manual, and this agreement.
Section B. The Employer has the exclusive right to establish
performance standards, critical elements and non-critical elements
under guidelines developed by a Union/Mgnt Performance Standards
Panel. These standards and critical and non-critical elements
shall be in writing and shall be consistent with the duties and
responsibilities contained in the employee's position description.
These standards shall be job related and objective. Each
employee shall be given a copy of their position description,
performance standards, and critical and non-critical elements that
relate to their position.
Section C. The Employer agrees to encourage employees to
participate in the establishment of performance elements and
performance standards for their individual position and to allow
the employee to have a Union representative present during
discussions of the elements and standards. Employees shall be
encouraged to provide input to their supervisors via comments and
recommendations during the development of standards for their
position. In the event that the employee and supervisor cannot
agree upon applicable performance standards and critical elements
for an employee or position, the matter shall be referred to a
Union/management performance standards panel containing a union
member who will be an active participant in discussions. The
standards and critical and non-critical elements shall be put in
writing and signed or initialed by the employee and supervisor.
Amendments should be noted with the parties' initials. Employees
and their supervisors shall meet at least once each year to
discuss the performance standards and critical and non-critical
elements applicable for the coming rating year. Performance
Elements and Standards will be given in writing to the employee at
the beginning of the appraisal period.
Section D. Employees shall receive a performance appraisal
from a supervisor located at the employees' worksite which shall
be accomplished in a fair and objective manner and based on a
comparison of employee performance with the standards established
for the appraisal period in accordance with the following:
1. The supervisor shall discuss the employee's job performance
with the employee in private surroundings at least once every
three (3) months during the rating period.
2. If the supervisor has identified shortcomings in the
employee's performance, the employee will be notified when the
problem is perceived, at the three (3) month's discussion, and at
anytime thereafter, if necessary. The supervisor will suggest
ways for the employee to improve his/her performance to a
satisfactory level, and provide necessary training which may be
required. Follow-up discussions may be held after the initial
discussion, if required.
3. The annual performance appraisal will be in written form.
The supervisor shall discuss the completed appraisal with the
employee in private during the month in which the rating is due.
This discussion should confirm and summarize previous discussions,
plus any significant observations made since the last discussion.
The signing of the applicable Air Force form by the employee
merely acknowledges receipt of the appraisal, but not necessarily
agreement with it. Each employee will be given a completed copy
of the performance appraisal. Annual Performance Appraisals will
be reviewed by Performance Standards Panel for appropriateness of
the rating and to insure that no unlawful discrimination of any
kind is involved in the rating. (Only the underscored portions
are in dispute.)
As explained by the Union, section B, C and the latter portion of
section D(3) of the proposal would, among other things, require that a
panel, including one union participant, be established by the Agency to
oversee the Agency's establishment and administration of performance
standards. Specifically the panel would develop guidelines under which
the Agency would establish the performance standards; it would resolve
differences between supervisors and employees regarding the performance
standards and critical elements to be applied to individual positions;
and it would review all annual performance appraisals for
appropriateness.
A proposal of this sort which would require union participation in a
formal organizational element assigned responsibility for management
deliberations would have the effect of directly interfering with
management's right to make the decision involved. National Federation
of Federal Employees, Local 1431 and Veterans Administration Medical
Center, East Orange, New Jersey, 9 FLRA 998 (1982). Additionally, the
Authority has held that the designation of critical elements and
performance standards is a matter which is outside the duty to bargain
because it is within management's authority to direct its employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute.
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury
Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
Based on the proposal itself and the Union's statement as to the
intent of the proposal, the functions of the panel in relation to the
performance appraisal system would involve a substantive role in the
decision-making process with respect to the designation of performance
standards and critical elements. More specifically, the panel would,
among other things, resolve differences between supervisors and
employees as to what performance standards and critical elements should
be applied to a position and review performance appraisals given by
supervisors. /1/ Clearly, such resolution would involve a determination
on the actual content of the performance standards or critical elements
in dispute. Hence, the proposal would necessarily interject the Union
into a decision-making process involving the exercise of management
rights. Consequently, the disputed portions of sections B, C and D(3)
of the proposal would directly interfere with management's rights under
section 7106 of the Statute to direct employees and to assign work. /2/
Those portions are, therefore, not within the duty to bargain. /3/
Turning now to the first sentence of section D of the proposal, which
is also in dispute, by its terms, it would dictate to the Agency which
supervisors would be assigned the function of appraising employees. In
this respect, it is substantially identical to Union Proposal 2 in
American Federation of Government Employees, AFL-CIO, Local 1858 and
Department of the Army, U.S. Army Missile Command, Redstone Arsenal,
Alabama, 10 FLRA 440 (1982). In Redstone Arsenal the Authority relied
upon Congressional Research Employees Association and the Library of
Congress, 3 FLRA 737 (1980) to find that a proposal which specified
which personnel within an agency would evaluate the work performance of
employees directly interfered with management's right to assign work
under section 7106(a)(2)(B) of the Statute. Thus, for the reasons set
forth in the Library of Congress decision, the Authority finds that the
first sentence of section D is not within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. /5/ Issued, Washington, D.C., October 30, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Of course, a proposal which would require that employees agree
with the performance standards and/or critical elements to be applied to
their positions would similarly be nonnegotiable. See American
Federation of Government Employees, AFL-CIO, Local 2849 and Office of
Personnel Management, New York Regional Office, 7 FLRA 571 (1982) (Union
Proposal 4).
/2/ See National Federation of Federal Employees, Local 1431 and
Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA
998 (1982); 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 574 (1981) (Union
Proposal 3), enforced sub nom. National Federation of Federal Employees
v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).
/3/ Cf. American Federation of Government Employees, AFL-CIO, Local
3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217 (1981) (Union Proposal 6) in which the Authority
found that a proposal to create a joint labor-management committee with
power limited to recommending changes in an agency's performance
appraisal system was procedural in nature and, thus, within the duty to
bargain).
/5/ In view of this decision, it is unnecessary to address other
arguments by the Agency with respect to the negotiability of the
proposal.