[ v21 p1051 ]
21:1051(123)NG
The decision of the Authority follows:
21 FLRA No. 123
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF THE TREASURY
Agency
Case No. 0-NG-1170
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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 the negotiability of nine provisions of an agreement which
were disapproved by the Agency head pursuant to section 7114(c) of the
Statute. /*/
II. Procedural Issues
Provision 1
Article 7, Section 2G:
The Employer shall provide the employee with a prompt written
final decision. When a negative determination is sustained after
reconsideration, an employee shall be informed in writing of the
reasons for the decision and of his/her right to submit the
decision, with the consent of the Union, to binding arbitration.
The provision quoted above submitted in the Union's petition for
review is not contended by the Agency to be outside the duty to bargain
under the Statute. Rather, it appears from the record that the Agency's
basis for holding a provision originally executed by the local parties
nonnegotiable was an additional phrase which is not contained in the
above provision. The Union, therefore, has not appealed the Agency
head's disapproval of the original provision. Since Provision 1 as
submitted in the petition for review has never been alleged by the
Agency to be nonnegotiable, the Authority concludes that the petition
for review as to the issue is moot and will not be considered further.
See American Federation of Government Employees, AFL-CIO, Local 32 and
U.S. Office of Personnel Management, 8 FLRA 420 (1982) (Proposal 2) and
case cited therein.
III. Provisions 2, 3, 4, and 5
Article 8, Section 5(A):
Immediate supervisors, at least once a year, must provide each
employee with an appraisal of their performance on ATF F 2430.7,
Performance Appraisal for Bargaining Unit Employees, and on ATF F
2430.8, Performance Appraisal for Bargaining Unit Employees --
Continuation Sheet. In addition, supervisors, during the course
of the year, must advise employees as to their performance and
must document such counselling sessions. (Only the underlined
portion of the provision is in dispute.)
Article 8, Section 6:
If the immediate supervisor is an acting supervisor or a
supervisor who has not been supervising the employee for at least
ninety (90) days, the appraisal will be made by the next higher
level supervisor. Employees in new positions will be evaluated
ninety (90) days after entering the new positions, regardless of
the effective date of their performance appraisal. (Only the
underlined portions of the provision are in dispute.)
Article 8, Section 7:
The following provisions will apply to employees on detail:
1. When an employee has been on detail for less than three (3)
months at the time a performance appraisal due date occurs, the
employee's regular supervisor will prepare the official
performance appraisal.
2. When the employee has been on detail for more than three
(3) months, the supervisor controlling the detailed employee's
activities will prepare a written performance appraisal at the
time of the performance appraisal due date and state whether the
employee's work performance is or is not fully acceptable.
The written statement will be forwarded to the regular
supervisor, who will endorse or supplement the statement and issue
the rating.
3. When the employee has been on detail for the entire
appraisal period, the written performance appraisal of the
supervisor controlling the activities of the detailed employee
establishes the performance appraisal. This appraisal is used by
the regular supervisor to certify that the employee has been rated
for the specific appraisal period.
4. Where it is known that the detail is for the entire
appraisal period, the supervisor of the position to which an
employee is detailed will verify whether standards of performance
and critical elements have been established for the position to
which detailed. If standards and critical elements exist for
either the position to which detailed or for identical positions
within the Bureau, those will be applied in evaluating the
detailee's performance. The supervisor will initially explain the
standards of performance and critical elements of the position to
the detailee. In situations involving details to positions for
which no standards of performance or critical elements exists, the
supervisor evaluating the employee will follow the procedures in
this article. (Only the underlined portions of the provision are
in dispute.)
Article 8, Section 8(C):
Prior to issuing a notice of proposed action based on
unacceptable performance, the Employer, generally through the
immediate supervisor, will meet with the employee, fully discuss
the performance problems, and provide him/her the following in
writing:
1. identification of the critical elements and performance
standards for which the performance is unacceptable;
2. advice as to what the employee must do to bring the
performance above the unacceptable level;
3. notification that the employee will be afforded a
reasonable period of time (specified in calendar days) in which to
bring performance above the unacceptable level,
4. identification of training and/or developmental activities
which would assist the employer in attaining performance above the
unacceptable performance level, and a description of what the
Employer will do to assist the employee to improve the
unacceptable performance during the opportunity period. (Only the
underlined portion of the provision is in dispute.)
A. Positions of the Parties
The Agency contends that by specifying which supervisor will complete
an annual appraisal, Provisions 2, 3, 4, and 5 impermissibly interfere
with its management right under section 7106(a)(2)(B) of the Statute.
The Union maintains that the above provisions are negotiable because:
Provision 2 provides each employee with an appraisal at least once a
year; the intent of Provision 3 is clear on its face; Provision 4
insures the parties that the performance of employees on details will be
evaluated by people who are in a position to observe the performance;
and Provision 5 requires the Agency to meet with an employee who is
having performance problems and provide a written document containing
the items listed in subsections 1-4.
B. Analysis and Conclusion
The disputed portions of Provisions 2, 3, 4, and 5 seek to designate
a particular individual within the Agency who would evaluate an
employee's work performance. The Authority has consistently held that
such proposals are inconsistent with the agency's right to assign work
under section 7106(a)(2)(B) of the Statute. National Federation of
Federal Employees, Local 943, and Department of the Air Force, Keesler
Air Force Base, Mississippi, 16 FLRA 313, 316 (1984) citing 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) and Congressional Research Employees Association and the
Library of Congress, 3 FLRA 737 (1980). Therefore, for the reasons more
fully set forth in Keesler Air Force Base and the cases cited therein,
Provisions 2, 3, 4 and 5 are not within the duty to bargain under the
Statute because they violate the Agency's right to assign work under
section 7106(a)(2)(B).
IV. Provision 6
Article 8, Section 9:
In appraising employees on ATF Form 2430.7, supervisors must:
A. Describe actual performance for each critical element in
terms of a comparison between actual performance and the
performance standards.
B. Assign rating for each element of Outstanding, Commendable,
Fully Acceptable, Partially Acceptable, and Unacceptable. In
assigning these ratings, supervisors should take into account the
following:
1. A rating of Outstanding (O) means that the actual
performance meets the level of outstanding performance specified
for that job.
2. A rating of Commendable (C) means that the actual
performance exceeds the fully acceptable standard of performance
in the job element but the performance does not meet the standard
established for outstanding performance.
3. A rating of Fully Acceptable (FA) means that the actual
performance of the employee in all respects meets the level of
performance required under the fully acceptable standard for that
element.
4. A rating of Partially Acceptable (PA) means that employee's
actual performance does meet the requirements of the fully
acceptable standard but, similarly, does not constitute
unacceptable as described in the unacceptable performance
standard.
5. A rating of Unacceptable (U) means that the employee's
actual performance is at or below the performance described in the
unacceptable performance standard.
C. Assign a rating for overall performance of critical
elements based on the following criteria:
1. Outstanding (O). Indicates performance substantially
exceeds fully acceptable performance in all of the critical
elements.
2. Commendable (C). Indicates performance that exceeds fully
acceptable, but which is below the outstanding level, in all of
the critical elements.
3. Fully Acceptable (FA). Indicates performance which is
fully successfully and meets the acceptable level of competence in
all critical elements.
4. Partially Acceptable (PA). Indicates performance in one
critical element falls below the fully acceptable level but does
not constitute unacceptable performance. An overall rating of
partially acceptable shall be a basis for denial of a within-grade
increase.
5. Unacceptable (U). Indicates performance which fails to
meet the established performance standard in one or more critical
elements. Unacceptable performance shall be the basis for denial
of a within-grade increase, and may be a basis for reassignment,
demotion, or removal from the Bureau.
A. Positions of the Parties
The Agency asserts that the provision is nonnegotiable because it
interferes with its rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute. The Union contends that
the provision is negotiable because it only requires the Agency to
provide certain information on the employees' appraisal forms.
B. Analysis and Conclusion
Provision 6 would establish the number of rating levels for the
appraisal of an employee's performance in each critical element and also
for rating overall performance. It has essentially the same effect as
the Union Proposal in American Federation of State, County and Municipal
Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA
578 (1984), which also established the number of rating levels for the
appraisal of an employee's performance in each critical element and for
rating overall performance and therefore violated the agency's right to
direct employees and to assign work under section 7106(a)(2)(A) and (B)
of the Statute. For the reasons more fully set forth in U.S. Department
of Justice, therefore, Provision 6 is outside the duty to bargain
because it violates section 7106(a)(2)(A) and (B) of the Statute.
V. Provision 7
Article 9, Section 4A:
The employer will appoint a ranking panel consisting of three
voting members, all of whom must be at or above the grade of the
position to be filled. The selecting official may not serve as a
member of the panel. (Only the underlined portion of the
provision is in dispute.)
A. Positions of the Parties
The Agency contends that the provision interferes with its right to
assign work by placing a restriction on the selecting official. The
Union contends that based on the explicit language of the provision, it
is within the duty to bargain under the Statute.
B. Analysis and Conclusion
The provision would preclude the Agency from using certain
supervisory personnel, i.e., the selecting official, on a ranking panel
which conducts an evaluation of employees. As was stated previously
with reference to Provisions 2-5, the Authority has held in Kessler Air
Force Base, 16 FLRA 313 (1984), that proposals which designate a
particular individual within the agency who would evaluate an employee's
work performance are inconsistent with the agency's right to assign work
under section 7106(a)(2)(B) of the Statute. Similarly, the Authority
has consistently held that provisions which restrict management in the
designation of particular employees to perform particular duties are
likewise violative of management's right to assign work. See, e.g.,
American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 19 FLRA No. 9 (1985) (Union Proposal 5).
The Authority finds that Provision 7 constitutes an improper
infringement on the Agency's right to assign work under section
7106(a)(2)(B) because the provision would restrict the Agency in
designating certain supervisory personnel to evaluate employees.
Consequently, Provision 7 is not within the duty to bargain.
VI. Provision 8
Article 10, Section 1:
The Employer agrees that an employee who is assigned to a
position of higher grade for more than thirty (30) consecutive
calendar days will be temporarily promoted and receive the rate of
pay for the position to which he/she is temporarily promoted. The
Employer further agrees to refrain from rotating assignments of
employees solely to avoid compensation at the higher level. (Only
the underlined portion of the provision is in dispute.)
A. Positions of the Parties
The Agency contends that this provision violates its right to assign
employees by preventing management from freely assigning employees to
details. The Union maintains that the provision would only prohibit
rotating assignments solely to avoid compensation at the higher grade
level and therefore is within the duty to bargain under the Statute.
B. Analysis and Conclusion
This provision would preclude the Agency from rotating assignments of
employees solely to avoid compensation at the higher level. It is to
the same effect as Provision 2 in National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984)
which also precluded the agency from rotating assignments of employees
solely to avoid compensation at the higher level. The Authority
determined that the provision violated the agency's right to assign
employees under section 7106(a)(2)(A) of the Statute because, by barring
management from rotating assignments for the purpose of avoiding the
temporary promotion of employees, it would substantively restrict
management's exercise of its right to assign those employees.
Therefore, for the reasons more fully set forth in Internal Revenue
Service, Provision 8 is also outside the duty to bargain under section
7106(a)(2)(A) of the Statute.
VII. Provision 9
Article 9, Section 2:
The detailing of personnel to lower-graded positions is
considered to be inconsistent with sound planning and management
and will be kept to an absolute minimum. However, the Employer
may use details under circumstances such as the following:
1. when a temporary shortage of personnel exists;
2. where an exceptional volume of work suddenly develops and
seriously interrupts the work schedule;
3. to fill temporarily the positions of employees on extended
leave with or without pay; or
4. other conditions of a special and temporary nature.
A. Positions of the Parties
The Agency asserts that the provision, by placing limitations on the
Agency's decision to detail employees, is inconsistent with its right to
assign employees. The Union contends that the provision is within the
duty to bargain because it contains examples of occasions where
detailing an employee to a lower graded position would not evidence poor
planning or management.
B. Analysis and Conclusion
The provision would require that the Agency restrict the detailing of
employees to lower-graded positions. The Authority has consistently
held that provisions which restrict management's assigning employees to
details are violative of section 7106(a)(2)(A). See, for example,
American Federation of Government Employees, AFL-CIO, Local 916 and
Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981) (Provisions 1 and 2).
We find that this provision violates section 7106(a)(2)(A) noting that
the provision would allow management to detail under certain limited
circumstances but would require management to keep such action "to an
absolute minimum." The Authority has found proposals which contain
similar qualifying language to be outside the duty to bargain because
such language substantively interferes with management rights. See
American Federation of Federal Employees, AFL-CIO, National Border
Patrol Council and Department of Justice, Immigration and Naturalization
Service, 16 FLRA 251 (1984) (Union Proposal 1) (in which the Authority
determined that the inclusion of the qualifying phrase "(t)o the maximum
extent possible" in an assignment of work proposal would subject
management's right to assign work to arbitral review on the basis of
whether the language of that qualifying phrase had been adhered to and
therefore violated the agency's right to assign work under section
7106(a)(2)(A)) and American Federation of Federal Employees, AFL-CIO,
Local 3483 and Federal Home Loan Bank Board, New York District Office,
13 FLRA 446 (1983) (Union Proposal 3) (in which the Authority determined
that the inclusion of the qualifying phrase "(t)o the extent
practicable" in a proposal concerning assignment of work and direction
of employees would subject those management rights to arbitral review on
the basis of whether the language of that qualifying phrase had been
adhered to and therefore violated the agency's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute). The provision here would subject management's decisions to
detail employees to arbitral review with an arbitrator substituting his
or her judgment for that of management as to the necessity of the
detail, thus, substantively interfering with management's right to
assign employees under section 7106(a)(2)(A). Therefore, Provision 9 is
outside the duty to bargain.
VIII. Order
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.
Issued, Washington, D.C., May 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) The Union in its petition for review dated August 15, 1985
asserts that the Agency did not fulfill the 30 day requirement for
disapproval under section 7114(c)(3) of the Statute because the Agency
left the memorandum of disapproval with the Union's receptionist at its
headquarters at a time when most Union officials were out of town. The
Agency in an affidavit submitted by one of its employees, the contents
of which the Union did not dispute, states that the memorandum of
disapproval was served on the Union at its headquarters within the 30
day time period. Consequently, the Union has not established that the
Agency did not meet the requirements set forth in section 7114(c)(3) of
the Statute.