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36:0028(5)NG
The decision of the Authority follows:
36 FLRA No. 5
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF THE NAVY
NAVAL AVIATION DEPOT
MARINE CORPS AIR STATION
CHERRY POINT, NORTH CAROLINA
(Agency)
and
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
LOCAL 2297
(Union)
0-NG-1600
DECISION AND ORDER ON NEGOTIABILITY ISSUES
June 8, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three provisions of a collective bargaining agreement which were disapproved by the Department of the Navy pursuant to section 7114(c) of the Statute.
We conclude that Provision 1, which provides that job and trade skills listed on employees' individual training records should be sufficient evidence of their ability to perform the skills listed, is negotiable. Provision 2, which would limit employee discipline to the minimum that can be expected to correct the offending employee, is nonnegotiable because it directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute and is not an appropriate arrangement under section 7106(b)(3). Finally, Provision 3, which establishes an advisory board under the negotiated grievance procedure to review employees' performance appraisal grievances, is negotiable.
II. Provision 1
Article 16, Section 6c, Promotions.
Evaluation procedures will be in accordance with the Naval Aviation Depot Merit Promotion Program. Such procedures must provide a sound basis for considering, evaluating, and comparing candidates through analysis of the position to be filled to determine the knowledges, skills, and abilities to be successful in the position. Length of qualifying experience and length of service (based on federal service computation date) will, in that order, be used to break ties. That is, the employee with the most service shall appear on the register above other employees he is tied with.
In evaluating unit employees for Merit Promotion, the Employer will give due and appropriate consideration when employees submit applications that list those jobs and trade skills that have been certified in their individual training records retained by the shop supervisor. In this regard, this should be sufficient evidence of their ability to perform the specific skills listed. In the event any shop does not now maintain an up-to-date training record, one will be established.
[Only the underscored sentence is in dispute.]
A. Positions of the Parties
The Agency asserts that by addressing the qualifications needed for selection, the underscored sentence of Provision 1 interferes with its right to select under section 7106(a)(2)(C) of the Statute. According to the Agency, the determination of selective factors, such as the skills and abilities needed to perform the work of a particular position, has been held to be an integral aspect of the selection process under section 7106(a)(2)(C) of the Statute. In support, the Agency cites, among other cases, American of Government Employees, AFL-CIO, Local 15 and Internal Revenue Service, North Atlantic Region, New York, 15 FLRA 954 (1984).
The Agency claims that Provision 1 "would bind the agency to consider as qualified employees who might be patently unqualified." Statement of Position at 4. The Agency asserts, for example, that skills acquired through training or job experience in the past may "be eroded by the passage of time or as a result of technological change[.]" Id. The Agency argues further that "skill in a particular discipline does not equate with the unique requirements of a particular position." Id. Thus, the Agency concludes that because the provision would have the effect of permanently fixing qualifications determinations once they are made "management would be deprived of the opportunity to . . . formulat[e] revised qualification requirements or . . . evaluat[e] the continued validity of an applicant's capabilities." Id. at 5-6.
The Union claims that the intent of Provision 1 is for management to rely on employee training records as "a source to establish qualifications" for promotions within the bargaining unit. Petition for Review at 2. The Union argues that it "has no input in determining qualifications for certification. It is solely the responsibility of management." Id. at 2-3. The Union argues further, however, "that once management certifies an employee is proficient in a certain work that should suffice to establish evidence of being qualified for the same work listed as a requirement for promotion." Id. at 3.
According to the Union, when an employee demonstrates proficiency to perform a specific job to the satisfaction of a supervisor, the supervisor enters such fact on a Shop Training Roster/Individual Qualification Record. Reply Brief at 2. The Union notes that this record is maintained by the supervisor and indicates which employee is qualified to perform certain work within the shop. The Union states further that, "[w]hen an employee fails to show proficiency in a specific skill, [the skills] are removed on the training record for that operation." Id. The Union also notes that training records are supposed to be kept current and are audited yearly. Finally, the Union states that Provision 1 only is intended to enable employees to avoid detailing their qualifications for certified jobs and trade skills on applications for promotion.
B. Analysis and Conclusion
For the reasons stated below, we find that the disputed sentence in Provision 1 is within the Agency's duty to bargain.
The Authority has held that the determination of the personnel requirements of a position--that is, the qualifications, skills, and abilities needed to perform the work of a position--is encompassed within management's right under section 7106(a)(2)(C) to select for a position. See National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 568 (1983). Further, we conclude that the right to select under section 7106(a)(2)(C) of the Statute necessarily includes the right to determine whether any of the applicants for a position possesses the qualifications, skill, and abilities needed to perform the work of that position.
The Agency contends that the disputed sentence would prevent management from formulating revised qualification requirements for a particular position. We reject this contention. We note that the sentence immediately preceding the disputed sentence states that employees may list on their promotion applications those tasks and trade skills for which they are certified in their individual training records. The disputed sentence states that "[i]n this regard, [the training record certifications] should be sufficient evidence of [the employee's] ability to perform the specific skills listed." In other words, the disputed sentence concerns the extent to which employee training records can be used to establish that an employee meets the qualification requirements listed for a particular position. Nothing in the disputed sentence, or in the record in this case, indicates that the Agency would be precluded in any manner from establishing the personnel requirements of a position--that is, as noted above, the qualifications, skills, and abilities needed to perform the work of a position. Further, nothing in the record establishes that the Agency would be precluded from revising the personnel requirements of a position it previously formulated. Consequently, we find that the disputed sentence of Provision 1 does not prevent the Agency from formulating or revising the personnel requirements of a position.
We also reject the Agency's claim that the disputed sentence would prevent the Agency from evaluating the extent to which an employee possesses the qualifications, skills, and abilities needed to perform the work of a position. We find nothing in the disputed sentence which obligates the Agency to find that an employee is qualified to perform particular tasks listed in the personnel requirements of a position solely on the basis of the employee's training record certifications. We note, for example, that the disputed sentence does not mandate that management accept the certifications in the training record as evidence that an employee is qualified to perform a specific task. The disputed language states only that where specified job or trade skills have been certified by a supervisor on an Agency training record, that certification "should be" sufficient evidence to establish that the employee has the ability to perform the job or skill listed. In other words, the disputed language establishes only a presumption that the employee is qualified to perform a job or skill listed in the personnel requirements of a position based on the employee's training record certifications. We note in addition, that the certification of job and trade skills, as well as the rescission or amendment of those certifications, is within the exclusive control of the Agency.
Finally, in our view, because the disputed sentence creates only a presumption that a supervisor's certification "should be" sufficient to establish that an employee has the ability to perform certain jobs or skills, the disputed sentence does not prevent the Agency from determining that a certification listed in an employee training record is no longer valid due to, for example, the passage of time or technological change. In other words, the disputed sentence does not remove the Agency's discretion to determine an employee's ability to perform specific skills. Consequently, the disputed sentence does not prevent the Agency from evaluating the extent to which an employee possesses the qualifications, skills, and abilities needed to perform the work of a position. Compare National Federation of Federal Employees, Local 29 and Kansas City District, Corps of Engineers, Kansas City, Missouri, 23 FLRA 569, 571-77 (1986) (Proposals 2 and 3) (proposals prescribing certain abilities and accomplishments for which specific credits will be given to candidates in the rating process held nonnegotiable). Therefore, the disputed sentence is not inconsistent with the Agency's right under section 7106(a)(2)(C) of the Statute to make selections for positions and is within the Agency's duty to bargain.
III. Provision 2
Article 21, Section 2, Disciplinary Action.
The Employer agrees that disciplinary action shall only be taken for just cause. The penalty imposed shall be the minimum that can reasonably be expected to correct the employee, and penalties imposed shall be applied consistent with the offense throughout the Unit.
[Only the underscored portion is in dispute.]
A. Positions of the Parties
The Agency asserts that by requiring disciplinary action to be restricted to the minimum necessary to correct an offending employee, Provision 2 "directly and excessively interferes" with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Statement of Position at 6. The Agency also asserts that Provision 2 is neither a procedure within the meaning of section 7106(b)(2) of the Statute nor an appropriate arrangement under section 7106(b)(3) of the Statute.
The Union states its recognition that "Management has the right and duty to administer discipline." Reply Brief at 3. The Union argues, however, "that in accordance with 5 U.S.C. º 7106(b)(2) and (3), [it has] the statutory right to negotiate the procedure Management officials will observe in exercising any authority granted by º 7106(a)." Id. The Union claims that Provision 2 is designed to ensure that disciplinary penalties utilized by the Agency are reasonable and consistent. According to the Union, if the provision were found to be nonnegotiable, the Agency could change the current policy of imposing (1) the minimum penalty expected to correct the employee to a policy of imposing the maximum penalty, and (2) consistent penalties throughout the bargaining unit to a policy of using different penalties for the same offenses.
B. Analysis and Conclusion
1. Provision 2 interferes with the Agency's right to discipline employees under section 7106(a)(2)(A).
Provision 2 would limit management's choice of the disciplinary penalties in individual cases to the "minimum that can reasonably be expected to correct the employee." It also would require that "penalties imposed . . . be applied consistent with the offense throughout the Unit." For the following reasons, we find that the disputed portion of Provision 2 is outside the duty to bargain because it directly interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute and does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposals which limit an agency's discretion to determine an appropriate disciplinary penalty to a minimum penalty are outside the duty to bargain because they directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1044-47 (1988) (Naval Weapons Station, Concord), reversed on other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. Federal Labor Relations Authority, Nos. 88-7408/7470 (9th Cir. order Feb. 7, 1989) (provision restricting disciplinary action to the minimum necessary to correct the offending employee found nonnegotiable because it interfered with management's right to discipline employees under section 7106(a)(2)(A)); International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 129-34 (1987) (Provision 22) (Bureau of Engraving and Printing) (subsection (a) of Provision 22, limiting the agency's disciplinary alternatives to the minimum discipline that could be reasonably expected to achieve a proper disciplinary objective, found nonnegotiable because it improperly limited the agency's discretion in imposing discipline). Consequently, to the extent that the disputed portion of Provision 2 limits the Agency's choice of an appropriate disciplinary penalty to the minimum reasonably expected to correct the employee, it directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.
We also find that, to the extent the disputed portion of Provision 2 requires the Agency to impose consistent disciplinary penalties for a particular offense throughout the bargaining unit, it also limits the Agency's discretion to determine appropriate penalties and, therefore, directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. That is, by requiring consistent penalties for particular offenses, the disputed portion of Provision 2 limits the Agency's discretion in tailoring the discipline it deems appropriate based on the circumstances giving rise to the disciplinary action. See American Federation of Government Employees, Local 1770 and U.S. Department of the Army Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 903, 906-7 (1990) (Fort Bragg) (proposal requiring management to consider only like offenses when determining whether an employee's actions constituted first, second or third offenses found to conflict with management's right to discipline under section 7106(a)(2)(A) because it limited management's discretion to determine the discipline that is warranted in individual cases); Bureau of Engraving and Printing, 25 FLRA at 133-34.
Consequently, because the disputed portion of Provision 2 limits the Agency's discretion to determine appropriate penalties, it directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.
2. Provision 2 is not a negotiable procedure under section 7106(b)(2).
As explained above, Provision 2 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Because Provision 2 directly interferes with this right, it does not constitute a procedure which is negotiable under section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA 848, 852 (1987) (Proposals 2-6).
3. Provision 2 is not an appropriate arrangement under section 7106(b)(3).
We conclude that the disputed portion of Provision 2 is not an appropriate arrangement under section 7106(b)(3) of the Statute. The disputed portion of Provision 2 concerns employees who are disciplined based on conduct for which the employee is at fault. By limiting the Agency's discretion to determine what discipline to impose by requiring it to impose only the minimum discipline necessary to correct the employee and by requiring disciplinary penalties to be consistent for a particular offense throughout the bargaining unit, the disputed portion of Provision 2 limits management's ability to determine the penalty it deems appropriate in each individual circumstance giving rise to a disciplinary action.
Such restrictions on the Agency's ability to determine an appropriate penalty constitute a benefit to employees because employees could have lesser penalties imposed. The benefits are obtained through significant restrictions on the Agency's right to discipline, however. In view of the fact that the disputed language benefits employees against whom the Agency is taking disciplinary action on the basis of conduct for which the employee is at fault, we conclude that the limitations on the penalties the Agency may impose for such misconduct outweigh the benefits to employees and, thereby, the proposal excessively interferes with management's right to discipline. Consequently, the disputed portion of Provision 2 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See Bureau of Engraving and Printing. See also Fort Bragg; Naval Weapons Station, Concord.
IV. Provision 3
Article 23, Section 12a, Grievance Procedure.
Grievances concerning performance appraisals where the rating assigned is satisfactory (acceptable performance) or higher, may be grieved to the Depot Advisory Board within fifteen (15) working days from the date the appraisal was signed by the employee. Signing of the appraisal does not indicate concurrence with the rating assigned. The Depot Advisory Board will be comprised of three (3) members: One (1) member to be selected from a list of nominations submitted by the Union; one (1) member to be selected by the Employer; and a Chairman.
If an employee receives an appraisal of Unsatisfactory (unacceptable performance) the action taken as a result thereof, i.e., demotion or removal, can be grieved or appealed in accordance with Section 3b above.
The recommendation of this Advisory Board will be submitted to the Commanding Officer or his designee who will render the decision.
[The entire Provision is in dispute.]
A. Positions of the Parties
The Agency argues that Provision 3 interferes with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. According to the Agency, Provision 3 "impermissibly" involves the union in the performance appraisal process by providing for Union participation in the Depot Advisory Board (the Board) review of disputed performance appraisals and ratings. Statement of Position at 12. The Agency contends that in Association of Civilian Technicians, Columbine Council and The Adjutant General, Colorado, 28 FLRA 969 (1987) (Adjutant General) and National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 519-520 (1987) (Proposal 5) (National Guard), the Authority found nonnegotiable "virtually identical" proposals seeking union membership on a committee which was an integral part of an agency's decision-making process by which it appraised the performance of employees. Id.
According to the Union, Provision 3 constitutes an exception to the "established grievance and arbitration procedure[ ]" as a "fair, simple and economical method of resolving grievances of unit members concerning performance appraisals." Petition for Review at 5. The Union states that the "sole purpose of the [Advisory Board] is to hear evidence presented by the grievant and his representative and the rater and reviewer and render a summary of evidence and a recommended resolution to the Commanding Officer. The Commanding Officer or his designee would then render a decision on the matter." Petition for Review at 5. The Union asserts that the Board is not intended to be a decision-making body, but that the Board will only review testimony and evidence and make recommendations for resolving employee grievances concerning performance appraisals. Finally, the Union claims that "[t]he parties in free negotiations, included in the grievance procedure this fair and simple method of adjudicating performance rating grievances. This practice has served both parties well over the life of the previous agreements." Reply Brief at 4.
B. Analysis and Conclusion
For the reasons which follow, we find that Provision 3 is within the Agency's duty to bargain.
As indicated by the Union, Provision 3 excepts from the scope of the parties' negotiated grievance procedure employee disputes over performance ratings where the rating assigned is satisfactory or higher. Instead of using the negotiated grievance and arbitration procedure to resolve disputes over these ratings, Provision 3 establishes a Depot Advisory Board which would (1) review testimony and/or evidence, (2) prepare a summary of the evidence, and (3) recommend resolution of the performance appraisal appeals to the Commanding Officer of the activity who will make the final decision. Provision 3 also provides that an action taken against an employee who receives an unsatisfactory performance appraisal, such as a demotion or removal, would be grieved or appealed through the negotiated grievance procedure.
Under the Statute, parties may agree to exclude matters from the scope of their negotiated grievance procedure. See American Federation of Government Employees, Locals 225, 1504, and 3723 v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983). In this case, the parties have excluded from their negotiated grievance procedure disputes concerning certain performance appraisals. The issue before us is whether the alternative process proposed by the Union to resolve disputes over these appraisals is negotiable.
The Agency's sole claim is that Provision 3 is nonnegotiable because it permits the Union to interject itself into the deliberative process by which the Agency appraises the performance of employees and that such proposals are nonnegotiable. See Adjutant General and National Guard. We conclude, however, that unlike the proposals found nonnegotiable in Adjutant General and National Guard, Provision 3 does not permit the Union to interject itself into the deliberative process by which the Agency appraises employee performance.
Proposal 5 in National Guard and the proposal at issue in Adjutant General would have allowed the union involved to appoint a member to serve as its representative on a State Review and Appeals Board. The records in both cases established clearly that the Board had been established by the agency to provide review of performance appraisal appeals from National Guard technicians and other employees and to make recommendations to the Adjutant General involved as to whether the appraisal should be upheld. The Authority found that the Boards were an integral part of the process by which the agency exercised its rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work by appraising the performance of its employees. The Authority concluded that placing union representatives on the Boards would allow the unions to interject themselves into the agency's decision-making process and prevent management officials on the Boards from engaging in free and open deliberations. The Authority held that because such deliberations are an essential part of management's right to make decisions under section 7106 of the Statute, the proposals violated the agency's rights to direct employees and to assign work. Adjutant General, 28 FLRA at 970-71; National Guard, 26 FLRA at 520.
In contrast to the proposals at issue in National Guard and Adjutant General, Provision 3 would establish a Depot Advisory Board as a "fair, simple and economical method of resolving grievances of unit members concerning performance appraisals." Petition for Review at 5. The Agency does not assert and there is nothing in the record which indicates that the Depot Advisory Board was established by the Agency as an integral part of the process by which the Agency exercises its rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work by appraising the performance of its employees. Rather, the record indicates that the Depot Advisory Board was created through collective bargaining as an alternative to the negotiated grievance procedure. See Reply Brief at 4. We note, in this regard, that the purpose of the Depot Advisory Board is solely to make recommendations concerning resolutions of performance appraisal appeals to the Commanding Officer and that this alternative procedure culminates in a nonreviewable decision by the Commanding Officer.
As the Depot Advisory Board has not been established by the Agency as an integral part of management's decision-making process concerning the appraisal of employee performance, and as the Board's function is solely to make recommendations to the Commanding Officer, we reject the Agency's assertion that the proposal would interject the Union into the Agency's deliberative process. See, for example, National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 575 (1988), enforced in part and denied enforcement in part as to other matters sub nom. United States Nuclear Regulatory Commission v. Federal Labor Relations Authority, 895 F.2d 152 (4th Cir. 1990), petition for rehearing denied, May 15, 1990 (proposal establishing a joint labor-management advisory committee to make recommendations concerning elements and standards held negotiable because the committee did not permit the union to participate in management's deliberative process leading to the exercise of management's rights). Compare National Federation of Federal Employees, Local 943 and Department of the Air Force, Keesler Air Force Base, Mississippi, 16 FLRA 313, 315-16 (1984) (portions of proposal establishing a panel including a union participant which, among other things, resolved differences between supervisors and employees as to what performance standards and critical elements should be applied to a position and reviewed performance appraisals given by supervisors found to be nonnegotiable because such resolution involved a determination on the actual content of the performance standards and critical elements in dispute and, thereby, necessarily interjected the union into a decision-making process involving the exercise of management's rights).
The Agency does not assert any other basis on which to find the proposal nonnegotiable, and none is apparent to us. Accordingly, we find that Provision 3 is negotiable.
V. Order
The Agency must rescind its disapproval of Provisions 1 and 3.(*) The Union's petition for review as it relates to Provision 2 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ In deciding that the disputed portions of Provision 1 and Provision 3 are negotiable, we make no judgment as to their merits.