[ v25 p487 ]
25:0487(34)NG
The decision of the Authority follows:
25 FLRA No. 34
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1603
Union
and
U.S. NAVAL HOSPITAL
PATUXENT RIVER, MARYLAND
Agency
Case No. 0-NG-1217
22 FLRA No. 60
DECISION AND ORDER ON MOTION FOR RECONSIDERATION
This matter is before the Authority pursuant to the Union's timely
filed request for reconsideration of the Authority's Decision and Order
on Negotiability Issue of July 15, 1986. In that decision the Authority
held that the provision under review was not within the duty to bargain.
In its request for reconsideration, the Union contends that the
Agency failed to serve the Union with a copy of its statement of
position, as required by section 2424.6(b) of the Authority's Rules and
Regulations. The Union contends that it was therefore denied an
opportunity to set forth in full its position on the negotiability
question prior to the Authority's decision. The Agency did not file an
opposition to the Union's request for reconsideration.
By letter of August 28, 1986, the Authority's Director of Case
Management stated that it had been established that the Union was not
served with a copy of the Agency's statement of position, a copy of
which was enclosed. Subsequently, the Union filed its response.
We find, pursuant to section 2429.17 of our Rules and Regulations,
that the Union has established the requisite extraordinary circumstances
to warrant reconsideration of the Authority's decision. Because the
Union did not have a copy of the Agency's statement of position, it was
unable to respond to the Agency's contentions before the Authority
issued its decision. Accordingly, we have granted the Union's motion so
that we can consider the negotiability of the following provision based
on the record now before us:
Article IX, Section 5
An employee who believes that he/she has been adversely
affected by the application of a performance standard may raise
the issue of whether the performance standard, as applied to the
employee, is fair and reasonable in any grievance proceeding or
arbitration on the matter. In interpreting whether a performance
standard is fair and reasonable, an arbitrator shall bear in mind
that 5 USC 4302 states that the employer must establish
performance standards which will, to the maximum extent feasible,
permit the accurate evaluation of Job Performance on the basis of
objective criteria related to the job in question.
In American Federation of Government Employees, AFL-CIO, Local 1603
and U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA No. 60
(1986), the Authority found, contrary to the Union's explanation, that
the clear language of the provision was not limited to subjecting the
application of performance standards to grievance and arbitral review.
The Authority found the language of the second sentence of the provision
would require an arbitrator to determine whether performance standards
themselves are fair and reasonable by reviewing the criteria used by
management in such standards to evaluate job performance. The Authority
therefore concluded that to the extent that the provision required an
arbitrator to determine whether performance standards themselves are
fair and reasonable, it violated management's rights to assign work and
direct employees under section 7106(a)(2)(A) and (B) of the Statute and
was outside the duty to bargain.
In its response to the Agency's statement of position, the Union
alleges that the Agency erroneously concluded that the provision
requires the performance standard itself to be fair and reasonable and
provides for arbitral review to determine if it is fair and reasonable.
The Union also alleges that the intent of its provision, as previously
set forth in its petition for review of negotiability issue, was to have
the performance standards applied in a fair and reasonable manner. It
contends that the provision itself does not state that performance
standards must be fair and reasonable. Finally, it alleges that the
provision represents an appropriate arrangement under section 7106(b)(3)
of the Statute.
We find that the Union's contentions cannot be sustained. The
Authority has consistently held that it will not base a negotiability
determination on a union's statement of intent which is inconsistent
with the clear language of the disputed provision. See, for example,
American Federation of Government Employees, AFL-CIO, Local 933 and
Veterans Administration Medical Center, 20 FLRA No. 80 (1985), at n.2.
We find that the language in the second sentence of the provision is
clear and would require an arbitrator to determine whether performance
standards themselves are fair and reasonable, in violation of section
7106(a)(2)(A) and (B) of the Statute. Therefore, the Union's contention
as to its intent in drafting the provision cannot overcome the clear
language of the provision.
Additionally, we find no merit to the Union's contention that the
provision constitutes an appropriate arrangement under section
7106(b)(3) of the Statute. We found in Patent Office Professional
Association and Patent and Trademark Office, Department of Commerce, 25
FLRA No. 29 (1987) that provisions, like the one in this case, that
determine the content of performance standards do not constitute
appropriate arrangements under section 7106(b)(3).
Thus, on review of the entire record in this case, including the
Union's response to the Agency's statement of position, we find that the
provision is outside the duty to bargain.
ORDER
The Union's petition for review is dismissed.
Issued, Washington, D.C. February 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY