[ v16 p816 ]
16:0816(114)NG
The decision of the Authority follows:
16 FLRA No. 114
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1940
Union
and
DEPARTMENT OF AGRICULTURE,
PLUM ISLAND DISEASE CENTER
Agency
Case No. O-NG-676
DECISION AND ORDER on NEGOTIABILITY ISSUES
The Petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
concerning seven proposals. Upon careful consideration of the entire
record, including the parties' contentions, the Authority makes the
following determinations. /1/
While the record is not precise as to how the various parts of the
proposals relate to one another, the Union has not requested that the
various components of each proposal be ruled upon separately.
Therefore, each proposal is treated as a whole. /2/
Union Proposal 1
For the purpose of this Article, the following definitions will
apply:
A. A job element is any major component of an employee's job
that has been included in the official position description which
can be objectively measured.
B. A critical element is a job element which is of such
importance that if it is not performed adequately, acceptable
performance of the job as a whole is not possible.
C. A non-critical element is a job element that is not
critical, but is important enough to require measurements based on
objective criteria.
D. A performance standard is a statement of objective
requirements measuring various levels of achievement for critical
and non-critical elements. All performance standards must be
fair, equitable, objective, valid, reliable and job related.
The proposal sets forth definitions for several terms relating to
performance appraisal systems. There is no indication that the Union,
in proposing the definitions, intends that they be applied in any manner
which is inconsistent with statutory /3/ and regulatory /4/ provisions
which govern the establishment of performance appraisal systems. Nor is
the proposal, taken on its face, inconsistent with law or regulation in
that it is not incompatible or irreconcilable with provisions which
govern the establishment of such systems. In this regard this proposal
is to the same effect as Union Proposals 2 and 3 in American Federation
of Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 3 FLRA 784 (1980) which the Authority
found within the duty to bargain. Additionally, insofar as the
definition of the term "performance standard" would include a provision
that performance standards be "fair, equitable, objective, valid,
reliable and job related," it is materially to the same effect as Union
Proposal 2 in American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217 (1981). In this regard it, like the proposal in
FDIC, would establish a general, nonquantitative requirement by which
the application of established performance standards could be evaluated
in a grievance. In FDIC the Authority relied upon two previous cases
/5/ and found that a proposal with such an effect was within the duty to
bargain.
Based on the foregoing and for the reasons set forth in OPM and FDIC
the Authority finds that Union Proposal 1, herein, is within the duty to
bargain.
Union Proposal 2
Procedures for Developing Elements and Performance Standards.
A. Each position will be accurately described in a position
description before performance standards are established.
B. Performance standards will be established in accordance
with 5 USC 4301, et. seq. and this Article. Procedures for
employee participation will be negotiated with the Union.
C. Positions which are essentially the same shall have the same
critical elements.
D. There shall be no secret studies bearing on performance
standards. All studies conducted by the employer will be
conducted on average workers under normal working conditions. The
Union shall be allowed to have an observer present in the
development or revision of all measures of performance and
studies. All information derived from such work studies will be
provided to the Union within five (5) days of completion of the
study. The Union shall have the right to conduct independent time
studies during duty hours in addition to receiving all documents
and data used in developing performance standards.
E. Production studies or goals shall not be translated into
performance standards (e.g., work units per person) unless the
following conditions are fully satisfied:
(1) The work performed is repetitive and capable of being done
uniformly by all workers in the unit being measured.
(2) Job content is constant throughout the appraisal period.
(3) The method of operation, service and work unit produced is
capable of being objectively, reliably, validly, and accurately
measured.
(4) The work units measured are equivalent.
This proposal sets forth several requirements relating to the
establishment of performance standards. Because the proposal provides
(1) that certain positions have the same critical elements, (2) that the
Union will be allowed to have an observer present at the development and
revision of performance standards, and (3) that production goals may not
be translated into performance standards unless certain conditions are
met; it is not within the duty to bargain. The first two provisions
referred to are identical to Union Proposals 1 and 2 in American
Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army
Armor Center, Fort Knox, Kentucky, 15 FLRA No. 5 (1984). In Fort Knox,
those proposals were found to interfere with management's rights under
section 7106(a)(2)(A) and (B) of the Statute to direct employees and to
assign work. With respect to a requirement that certain positions have
identical critical elements, the Authority relied upon its reasoning set
forth in American Federation of Government Employees, AFL-CIO, Local
1968 and Department of Transportation, Saint Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA 70 (1981), aff'd sub nom. AFGE
Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, . . .
U.S. . . . , 103 S.Ct. 2085 (1983); and National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982)
to find that such a requirement, by restricting management in its
designation of critical elements, interfered with the agency's exercise
of its management rights. With regard to the proposal that the union be
allowed to have an observer present in the development and revision of
performance standard, the Authority found that such a proposal would
effectively require that the union be allowed to be present at internal
management deliberations regarding performance standards and, hence,
would interfere with the decisionmaking process with respect to the
agency's exercise of its right to direct employees and to assign work.
The third provision cited above is identical to Union Proposal 2 in
American Federation of Government Employees, AFL-CIO, Local 1708 and
Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
No. 1 (1984) which the Authority also found interfered with the agency's
rights to direct employees and assign work under section 7106(a)(2)(A)
and (B) of the Statute. In so concluding the Authority found that
proposing limitations on the inclusion of certain matters in performance
standards was tantamount to seeking to negotiate the substance of
performance standards. Relying on reasons set forth in American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, Washington, D.C., 3 FLRA 784 (1980), the Authority
found that proposals which restricted management in its establishment of
performance standards were not within the duty to bargain.
Based on the foregoing and the reasons set forth in Ft. Knox, Sunny
Point and the cases cited therein, the Authority finds that Union
Proposal 2 is not within the duty to bargain. /6/
Union Proposal 3
Appraisal Rating
A. Employees' performance ratings will be a result of
application of standards of performance to the employees'
performance on critical and non-critical elements of the
employees' positions. The employee will be rated only on these
elements.
B. The rating of elements will include designation of one of
three ratings applied to each element identified on the rating
form. Upon completion of the appraisal of each element, an
overall rating of total performance will be designated using one
of four ratings.
(1) Rating of individual elements. The range of ratings for
each individual element shall be:
(a) Exceeds the standard
(b) Meets the standard
(c) Fails to meet the standard
Ratings other than "Meets the Standard" must be documented in
writing and placed in the employee's personnel file.
(2) Overall Rating. The range of rating for overall
performance shall be one of the four ratings defined below. The
overall rating shall be arrived at by considering the total
performance of the employee by using only the rating of the
elements as prescribed in Section 4B(1) above. The ratings are:
(a) Outstanding
(b) Satisfactory
(c) Marginal
(d) Unacceptable
A rating other than (b) satisfactory shall be documented in
writing and made part of the employee's personnel file. Each
employee will be given a copy of the rating and any written
documentation.
C. Employees will be rated annually. The rating will be
completed within five (5) working days of the anniversary date.
Insofar as this proposal seeks to negotiate the number of rating
levels for the appraisal of an employee's performance in individual job
elements and for a summary appraisal of overall performance, it is to
the same material effect as the proposal in American Federation of
State, County and Municipal Employees, AFL-CIO, Council 26 and U.S.
Department of Justice, 13 FLRA No. 96 (1984). In Department of Justice
the Authority found that a proposal which sought to establish the number
of such levels directly interfered with management's rights to direct
employees and assign work pursuant to section 7106(a)(2)(A) and (B) of
the Statute. For the reasons fully expressed in Department of Justice,
Union Proposal 3 is not within the duty to bargain. /7/
Union Proposal 4
Relation of Performance Appraisals System to Personnel Actions.
A. Awards: This appraisal system will be the only factor in
determining awards and quality step increases based on sustained
performance. An outstanding rating will entitle an employee to an
appropriate monetary award.
B. Periodic Within-Grade Increases: This appraisal system
shall be the only factor used in granting or denying within-grade
increases. An within-grade increase shall be granted for an
overall rating of Satisfactory or better.
C. Promotion:
(1) Performance appraisal shall be one factor for evaluating
employees for promotions. An overall satisfactory performance of
the established job elements at any grade level shall satisfy all
requirements for within-grade promotions in that grade level, all
requirements for noncompetitive promotion to the next higher grade
level; and any established qualifications requirements for
competitive promotion to a position for the next higher grade
level in the same occupational series (or in a closely related
series).
(2) Management shall assure that all employees are given the
opportunity to obtain the knowledges and skills that each grade
level requires to qualify for the next higher grade level in the
same occupational series (or closely related series) and shall not
establish special qualification requirements at such higher grade
levels which cannot be satisfied by skills and knowledge normally
acquired within the Agency at such lower grade level.
D. Other Personnel Action: Where performance is a factor in
any personnel action, this appraisal system shall be the sole
procedure used.
This proposal would, among other things, require that an appropriate
monetary award be given to an employee who has received an outstanding
performance rating. In this regard, the proposal is materially
identical to the first sentence of Union Proposal 2 in American
Federation of Government Employees, AFL-CIO, Locals 112, 3269, 3383 and
3831 and Department of Health and Human Services, Food and Drug
Administration, Region V, 15 FLRA No. 171 (1984). In that case the
Authority relying on reasoning set forth in National Treasury Employees
Union and Internal Revenue Service, 14 FLRA No. 77 (1984), appeal
docketed sub nom. NTEU v. FLRA, No. 84-1292 (D.C. Cir. July 9, 1984)
found that a proposal with such an effect directly interfered with the
agency's right to direct employees and assign work pursuant to section
7106(a)(2)(A) and (B) of the Statute. In so finding, the Authority
noted that an integral aspect of management's exercise of these rights
was to prescribe the overall performance necessary for a reward for
superior performance. Thus, the Authority found that the determination
as to whether particular performance warrants a reward is an exercise of
the rights to direct employees and assign work. Since Union Proposal 4,
herein, would mandate the granting of a monetary award for the
attainment of a specified performance rating the Authority finds for the
reasons expressed in Internal Revenue Service that it interferes with
the agency's exercise of those rights.
Additionally this proposal would prohibit the establishment of
qualifications requirements for promotion to higher grade levels which
could not be satisfied by skills and knowledge normally acquired within
the Agency at lower grade levels. With respect to basic eligibility for
promotion, the minimum qualification requirements for a particular
position are those established by Office of Personnel Management (OPM),
as supplemented by any "selective factors" added by the agency involved,
i.e., knowledges, skills or abilities essential to successful
performance in the job to be filled. /8/ The Authority has found that
the determination of "selective factors" is an integral aspect of the
process of selection. Hence, the right under section 7106(a)(2)(C) to
make selections for appointments includes the discretion to make such
determinations. National Federation of Federal Employees, Local 1497
and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
Base, Colorado, 11 FLRA No. 92 (1983) (Union Proposals 1 and 2). Thus,
insofar as Union Proposal 4, herein, would restrict that discretion, it
conflicts with the Agency's right under section 7106(a)(2)(C).
Based on the foregoing, Union Proposal 4 is not within the duty to
bargain.
Union Proposal 5
Procedures for Applying the Performance Appraisal System.
A. At the beginning of the appraisal period, a copy of the
appraisal form shall be given to each employee. The form shall
show the critical and non-critical elements and the corresponding
performance standards. An explanation will also be given of the
three summary ratings and how they will be applied. A written
notice will be provided each employee stating that within-grade
increase will be granted for an overall average appraisal rating
of at least satisfactory except that a rating of unsatisfactory in
critical element may be cause for denial of a within-grade
increase.
The proposal on its face provides that a rating of unsatisfactory in
a critical element may be cause for denial of a within-grade increase.
Thus, under the plain terms of the proposal, it would be possible to
receive a within-grade increase in spite of an unsatisfactory rating in
a critical element. This conflicts with the terms of 5 CFR 430.202(e)
which require the denial of a within-grade increase when performance in
any critical element is below a minimum standard. /9/ 5 CFR 430.202(e)
constitutes a Government-wide regulation within the meaning of section
7117(a)(1) of the Statute. American Federation of State, County and
Municipal Employees, AFL-CIO, Local 2027 and Action, Washington, D.C.,
12 FLRA No. 128 (1983) (Union Proposal 2). Inasmuch as the proposal is
inconsistent with a Government-wide regulation, it is outside the duty
to bargain. /10/ See Action.
Union Proposal 6
(7) No employee shall receive an annual performance appraisal
that contains any lower rating on any element on the previous
annual appraisal, except where the immediate supervisor has
notified the employee during an earlier conference that the annual
rating may be lowered and has promptly provided the employee all
necessary training, counseling, and other assistance for the
necessary improvement of that appraisal element by the time of the
annual element.
This proposal would require that, under certain circumstances, the
Agency provide employees with "all necessary training." The Union does
not explain what is intended by the term "all necessary training";
however, by its plain terms it would encompass formal training. The
Authority has found that proposals which would require management to
provide formal training to employees conflict with management's right to
assign work under section 7106(a)(2)(B) of the Statute. American
Federation of Government Employees, AFL-CIO, Local 1923 and Department
of Health and Human Services, Social Security Administration, 9 FLRA 899
(1982) and cases cited therein. Inasmuch as this proposal would require
the assignment of formal training it is, for the reasons fully stated in
Social Security Administration and the cases cited therein, not within
the duty to bargain.
Union Proposal 7
Unacceptable Performance
If remedial action for unacceptable performance as defined in 5
USC 4303 is necessary, that action shall be progressively applied
as follows:
A. Providing additional work experience or training
B. Reassignment to another appropriate position at the same
grade level and in same commuting area
C. Demotion by one grade
D. Termination
This proposal is identical to Union Proposal 3 in American Federation
of Government Employees, AFL-CIO, Local 1708 and Military Ocean
Terminal, Sunny Point, Southport, North Carolina, 15 FLRA No. 1 (1984)
which the Authority found to interfere with the exercise of management's
rights, inasmuch as it conditioned the exercise of specified management
rights on the prior exercise of others. For the reasons set forth in
Sunny Point, Union Proposal 7 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 insofar
as it concerns Union Proposals 2 through 7 be, and it hereby is,
dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or
as otherwise agreed to by the parties) bargain concerning Union Proposal
1. /11/
Issued, Washington, D.C., December 13, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Agency, citing several alleged procedural deficiencies in the
Union's petition for review, moved that the petition be dismissed.
Whatever procedural deficiencies which may have been present in the
Union's initial filing have been corrected; therefore, the Agency's
motion is denied. See American Federation of Government Employees,
AFL-CIO, Local 51 and Department of the Treasury, Bureau of the Mint,
U.S. Assay Office, San Francisco, California, 9 FLRA 809 (1982).
/2/ See National Federation of Federal Employees, Local 1497 and
Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
Base, Colorado, 6 FLRA 9 (1981); American Federation of Government
Employees, Local 225 and U.S. Army Armament Research and Development
Command, Dover, New Jersey, 11 FLRA No. 108 (1983).
/3/ 5 U.S.C. 4302.
/4/ 5 CFR 430.101 et seq. (Supp. 1984).
/5/ American Federation of Government Employees, AFL-CIO, Local 32
and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980);
American Federation of Government Employees, AFL-CIO, Local 3656 and
Federal Trade Commission, Boston Regional Office, Massachusetts, 4 FLRA
702 (1980).
/6/ A proposal limited to requiring consistency between position
descriptions and performance standards would not limit an agency's
discretion with respect to the substance of performance standards and
would be within the duty to bargain. American Federation of Government
Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New
York Regional Office, 7 FLRA 571 (1982) (Union Proposal 1). Proposals
limited to requiring that performance standards be established in
accordance with applicable laws would be within the duty to bargain.
See American Federation of Government Employees, AFL-CIO, National
Council of EEOC Locals and Equal Employment Opportunity Commission, 10
FLRA 3 (1982), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir.
1984). A proposal limited to requiring negotiation over the manner in
which employees would participate in the establishment of performance
standards would be within the duty to bargain to the extent that it
would not prevent an agency from establishing performance standards.
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769, 778 (1980), aff'd sub nom. NTEU v. FLRA,
691 F.2d 553 (D.C. Cir. 1982). A proposal limited to prohibiting secret
studies bearing on performance standards, requiring that such studies be
conducted on average workers under normal working conditions and
requiring that information derived from such studies be provided the
union within a specified time would be within the duty to bargain.
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
217 (1981) (Union Proposals 4 and 5).
/7/ A proposal limited to requiring that an agency give notice to
employees as to which job elements will be subject to performance
appraisal and, of those elements, which ones are deemed "critical" or
"non-critical" and to prescribing procedural time frames for appraisal
of employee performance would be within the duty to bargain. American
Federation of Government Employees, AFL-CIO, Local 3028 and Department
of Health and Human Services, Public Health Service, Alaska Area Native
Health Service, 13 FLRA No. 112 (1984) (Union Proposals 1 and 4).
/8/ Federal Personnel Manual (FPM), chapter 335, Subchapter 1,
section 2h.
/9/ 5 CFR 430.202(e) (Supp. 1984) provides as follows:
430.202 Definitions.
In this part, terms are defined as follows--
* * * *
(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.
/10/ A proposal limited to prescribing when employees will be given a
copy of the critical elements and performance standards for their
positions would be within the duty to bargain. American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Union
Proposals 1 and 2).
/11/ In finding Union Proposal 1 within the duty to bargain, the
Authority makes no judgment as to its merits.