National Treasury Employees Union (Labor Organization) and Department of the Treasury, Bureau of the Public Debt (Activity)



[ v03 p769 ]
03:0769(119)NG
The decision of the Authority follows:


 3 FLRA No. 119
 
 NATIONAL TREASURY EMPLOYEES UNION
 (Labor Organization)
 
 and
 
 DEPARTMENT OF THE TREASURY,
 BUREAU OF THE PUBLIC DEBT
 (Activity)
 
                                            Case No. 0-NG-56
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    ACCOUNTS MAINTENANCE CLERKS, GS-502-3/5, MUST MAINTAIN THE FOLLOWING
 MINIMUM RATES:
 
    A.  TO RETAIN HIS/HER POSITION INCUMBENT MUST PROCESS 9.0 BATCHES PER
 HOUR.
 
    B.  TO RECEIVE A WITHIN-GRADE STEP INCREASE INCUMBENT MUST PROCESS
 9.0 BATCHES PER HOUR.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE BECAUSE IT VIOLATES THE
 FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, AS ALLEGED BY THE
 AGENCY.
 
                                  OPINION
 
    CONCLUSION:  SUBSECTION A OF THE UNION'S PROPOSAL ESTABLISHING A
 SPECIFIC NUMBER OF BATCHES PER HOUR AS THE MINIMUM STANDARD FOR JOB
 RETENTION IS WITHIN THE FRAMEWORK OF THE RIGHT OF MANAGEMENT TO DIRECT
 ITS EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106(A) OF THE STATUTE.
 HOWEVER, CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION
 7101 OF THE STATUTE THAT EMPLOYEES PARTICIPATE THROUGH LABOR
 ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISIONS WHICH AFFECT THEM, AND
 OTHER SECTIONS DISCUSSED HEREINAFTER, THE AGENCY'S RIGHT TO IDENTIFY
 CRITICAL ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS UNDER SECTION
 7106(A) IS SUBJECT TO CERTAIN RIGHTS OF LABOR ORGANIZATION UNDER THE
 STATUTE.  SPECIFICALLY, UNDER SECTION 7117, AS TO UNITS OF EXCLUSIVE
 RECOGNITION, IT IS WITHIN THE DUTY OF THE AGENCY TO BARGAIN, CONSISTENT
 WITH LAW AND REGULATION, ON ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS
 OTHER THAN IDENTIFICATION OF CRITICAL ELEMENTS AND CONTENT OF
 PERFORMANCE STANDARDS.  THE DUTY TO BARGAIN EXTENDS TO, AMONG OTHER
 MATTERS, THE FORM OF THE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT OF
 PERFORMANCE STANDARDS REQUIRED UNDER SECTION 4302 OF THE CIVIL SERVICE
 REFORM ACT (CSRA).  IN THIS CONNECTION, SECTION 4302 IN ITS REFERENCE TO
 PARTICIPATION OF EMPLOYEES IN ESTABLISHING PERFORMANCE STANDARDS REFERS
 TO ALL EMPLOYEES, WHETHER REPRESENTED OR UNREPRESENTED.
 
    FURTHERMORE, SECTION 7106(A) IS SUBJECT TO SECTION 7106(B).  UNDER
 SECTION 7106(B)(2) AN AGENCY HAS THE DUTY TO BARGAIN ON PROCEDURES WHICH
 MANAGEMENT OFFICIALS WILL OBSERVE IN THE DEVELOPMENT AND IMPLEMENTATION
 OF PERFORMANCE STANDARDS AND CRITICAL ELEMENTS;  AND, UNDER SECTION
 7106(B)(3), ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED
 BY THE APPLICATION OF PERFORMANCE STANDARDS TO THEM.  IN ADDITION, UNDER
 SECTION 7114 OF THE STATUTE, THE AGENCY MUST AFFORD AN EXCLUSIVE
 REPRESENTATIVE THE OPPORTUNITY TO BE PRESENT AT ANY FORMAL DISCUSSION
 BETWEEN AN AGENCY REPRESENTATIVE AND A UNIT EMPLOYEE REGARDING THE
 ESTABLISHMENT OR THE IMPLEMENTATION OF PERFORMANCE STANDARDS AND
 CRITICAL ELEMENTS AND, WHEN REQUESTED, AT ANY INVESTIGATORY INTERVIEW OF
 A UNIT EMPLOYEE WHO REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINE FOR UNACCEPTABLE PERFORMANCE UNDER SECTION 4303 OF THE
 CSRA.  FINALLY, THE RIGHT OF AN AGENCY UNDER SECTION 7106(A) TO IDENTIFY
 CRITICAL ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS IS SUBJECT TO THE
 RIGHT OF AN EMPLOYEE AGAINST WHOM DISCIPLINARY ACTION HAS BEEN TAKEN.
 THE EMPLOYEE HAS A RIGHT TO CHALLENGE SUCH ACTION UNDER THE APPELLATE
 PROCEDURES OF SECTION 7701 OF THE CSRA OR UNDER A NEGOTIATED GRIEVANCE
 PROCEDURE PURSUANT TO SECTION 7121 OF THE STATUTE.  IN REFERENCE TO
 SUBSECTION B OF THE PROPOSAL, IT IS DETERMINED THE INSTANT PROPOSAL IS
 OUTSIDE THE AGENCY'S DUTY TO BARGAIN BECAUSE IT CONFLICTS WITH AN
 APPLICABLE GOVERNMENT-WIDE REGULATION (5 CFR 531.407(C)(1)).
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10), THE AGENCY ALLEGATION THAT THE PROPOSAL IS
 NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  THE UNION'S PROPOSAL IN THIS CASE WOULD ESTABLISH, IN
 SUBSECTION A, THE STANDARDS AN EMPLOYEE MUST MEET IN ORDER TO CONTINUE
 IN THE EMPLOYMENT OF THE AGENCY AND, IN SUBSECTION B, TO RECEIVE AN
 INCREASE IN PAY.  THE UNION TIMELY APPEALED TO THE AUTHORITY UNDER
 SECTION 7117(C) OF THE STATUTE FROM THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL WAS OUTSIDE THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
 SECTION 7114(A)(4), AS RELEVANT HEREIN, PROVIDES AS FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   *          *          *          *
 
 
    (4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE
 UNIT IN THE AGENCY,
 
    THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
 FAITH FOR THE PURPOSES
 
    OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT . . .
 
    SECTION 7114(B)(2) STATES THAT THE DUTY TO NEGOTIATE IN GOOD FAITH
 SHALL INCLUDE THE OBLIGATION "TO DISCUSS AND NEGOTIATE ON ANY CONDITION
 OF EMPLOYMENT." CONDITIONS OF EMPLOYMENT ARE DEFINED IN SECTION
 7103(A)(14) AS FOLLOWS:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   *          *          *          *
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS, EXCEPT THAT SUCH
 
    TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
 
    (A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER III
 OF CHAPTER 73 OF THIS
 
    TITLE;
 
    (B) RELATING TO THE CLASSIFICATION OF ANY POSITION;  OR
 
    (C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
 FEDERAL STATUTE . . .
 
    SECTION 7117(A)(1) FURTHER DESCRIBES THE DUTY TO BARGAIN IN GOOD
 FAITH AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    THUS, THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF
 THE STATUTE EXTENDS TO CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL
 POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, AFFECTING
 EMPLOYEES IN A UNIT OF EXCLUSIVE RECOGNITION UNLESS THE MATTERS PROPOSED
 FOR BARGAINING ARE INCONSISTENT WITH FEDERAL LAW OR GOVERNMENT-WIDE RULE
 OR REGULATION.
 
    THE NEGOTIABILITY OF SUBSECTION A OF THE UNION'S PROPOSAL STANDS OR
 FALLS ON THE DETERMINATION OF WHETHER IT IS INCONSISTENT WITH FEDERAL
 LAW OR GOVERNMENT-WIDE RULE OR REGULATION UNDER SECTION 7117(A)(1).  IN
 THIS REGARD, THE AGENCY ALLEGES IN PART THAT, BY REQUIRING IT TO ADOPT A
 STANDARD OF NINE BATCHES AN HOUR, THE PROPOSAL CONFLICTS WITH ITS RIGHT
 TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE BY
 PREVENTING THE AGENCY FROM REQUIRING OF AN EMPLOYEE THAT HE OR SHE
 PERFORM WORK BEYOND THAT WHICH IS REQUIRED UNDER THE STANDARD;  AND WITH
 ITS RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) BY, AMONG OTHER
 THINGS, LIMITING THE AMOUNT OF WORK WHICH CAN BE ASSIGNED.  /1/
 
    IN ORDER TO DETERMINE WHETHER THE PROPOSAL IDENTIFYING A CRITICAL
 ELEMENT AND ESTABLISHING A PERFORMANCE STANDARD CONCERNS MATTERS WHICH
 CONSTITUTE AN EXERCISE OF THE RIGHTS RESERVED TO MANAGEMENT UNDER
 SECTION 7106 OF THE STATUTE, IT IS NECESSARY TO EXAMINE THE NATURE OF
 PERFORMANCE APPRAISAL SYSTEMS AS PROVIDED FOR IN TITLE II OF THE CRSA.
 
    SECTION 4302 OF THE CSRA /2/ REQUIRES EACH AGENCY TO DEVELOP ONE OR
 MORE PERFORMANCE APPRAISAL SYSTEMS AND STATES THE BASIC REQUIREMENTS OF
 SUCH SYSTEMS.  BEFORE DISCUSSING THE NATURE OF PERFORMANCE APPRAISAL
 SYSTEMS, REFERENCE IS MADE TO THE REQUIREMENT THAT EACH PERFORMANCE
 APPRAISAL SYSTEM ENCOURAGE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT
 OF PERFORMANCE STANDARDS.  THE UNION TAKES THE POSITION THAT THE ANSWER
 TO WHETHER THE DISPUTED PROPOSAL HEREIN IS WITHIN THE DUTY TO BARGAIN IS
 NOT FOUND IN SECTION 4302.  /3/ THE AUTHORITY AGREES.
 
    SECTION 4302 MAKES NO DISTINCTIONS BETWEEN AN AGENCY'S RESPONSIBILITY
 TO ENCOURAGE PARTICIPATION BY EMPLOYEES WITHIN UNITS OF EXCLUSIVE
 RECOGNITION AND UNREPRESENTED EMPLOYEES.  THUS, THIS SECTION COVERS BOTH
 REPRESENTED AND UNREPRESENTED EMPLOYEES AND DOES NOT SPECIFY THE FORM
 WHICH SUCH EMPLOYEE PARTICIPATION MUST TAKE. AS MORE FULLY DISCUSSED ON
 PAGE 10, INFRA, THE DUTY TO BARGAIN EXTENDS TO, AMONG OTHER MATTERS, THE
 FORM OF THE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS REQUIRED UNDER SECTION 4302 OF THE CSRA;  AND THE INTENT OF
 THE STATUTE AND THE EXPRESS PROVISIONS OF SECTION 7114 REQUIRE THAT AN
 EXCLUSIVE REPRESENTATIVE BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT
 CERTAIN MEETINGS BETWEEN MANAGEMENT AND EMPLOYEES RELATING TO THE
 DEVELOPMENT AND IMPLEMENTATION OF PERFORMANCE SYSTEMS.  IN SUMMARY, IT
 IS THE STATUTE, AND NOT SECTION 4302, WHICH CONTROLS WHETHER THE
 IDENTIFICATION OF CRITICAL ELEMENTS AND THE CONTENT OF PERFORMANCE
 STANDARDS ARE WITHIN THE SCOPE OF THE DUTY TO BARGAIN.
 
    TURNING TO THE NATURE OF PERFORMANCE APPRAISAL SYSTEMS, UNDER SECTION
 4302 EACH SYSTEM MUST PROVIDE FOR ESTABLISHING "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 FOR EACH EMPLOYEE OR POSITION UNDER THE
 SYSTEM." SECTION 4301 OF THE CSRA DEFINES "UNACCEPTABLE PERFORMANCE" AS
 "PERFORMANCE OF AN EMPLOYEE WHICH FAILS TO MEET ESTABLISHED PERFORMANCE
 STANDARDS IN ONE OR MORE OF THE CRITICAL ELEMENTS OF SUCH EMPLOYEE'S
 POSITION." PERFORMANCE STANDARDS DEVELOPED WITH EMPLOYEE PARTICIPATION
 ARE A MEASURE OF AN EMPLOYEE'S PERFORMANCE IN CRUCIAL ASPECTS OF THE
 EMPLOYEE'S POSITION, AND "UNACCEPTABLE PERFORMANCE" IS THE FAILURE TO
 ACCOMPLISH THE REQUIREMENTS OF THE JOB AS STATED IN THE STANDARD FOR
 THAT ASPECT OF THE POSITION.  SECTION 4302(B)(4) PROVIDES FOR
 RECOGNITION AND REWARD OF EMPLOYEES WHOSE PERFORMANCE SO WARRANTS.
 SECTION 4302(B)(5) AND (6) PROVIDES FOR ASSISTANCE TO EMPLOYEES IN
 IMPROVING UNACCEPTABLE PERFORMANCE AND ACTION AGAINST EMPLOYEES WHO
 CONTINUE TO PERFORM UNACCEPTABLY.
 
    THE OFFICE OF PERSONNEL MANAGEMENT (OPM) IS AUTHORIZED UNDER SECTION
 4302(B) TO ISSUE REGULATIONS IMPLEMENTING THE STATUTORY REQUIREMENTS
 REGARDING PERFORMANCE APPRAISAL SYSTEMS.  AS RELEVANT TO THE DISPUTE
 HEREIN, OPM HAS, BY REGULATION, DEFINED THE TERMS "PERFORMANCE
 STANDARDS" AND "CRITICAL ELEMENT:" /4/
 
    "PERFORMANCE STANDARDS" ARE THE EXPRESSED MEASURE OF THE LEVEL OF
 ACHIEVEMENT ESTABLISHED
 
    BY MANAGEMENT FOR THE DUTIES AND RESPONSIBILITIES OF A POSITION OR
 GROUP OF
 
    POSITIONS.  PERFORMANCE STANDARDS MAY INCLUDE, BUT ARE NOT LIMITED
 TO, ELEMENTS SUCH AS
 
    QUANTITY, QUALITY, AND TIMELINESS.
 
    "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.
 
    THUS, IN TERMS OF THE LAW AND IMPLEMENTING REGULATIONS, PERFORMANCE
 STANDARDS ESTABLISH THE MINIMUM LEVEL OF JOB PERFORMANCE REQUIRED OF AN
 EMPLOYEE WITH REGARD TO THE DUTIES AND RESPONSIBILITIES OF THE
 EMPLOYEE'S JOB.  CRITICAL ELEMENTS ARE THOSE COMPONENTS OF THE JOB WHICH
 ARE OF SUFFICIENT IMPORTANCE THAT FAILURE TO ACHIEVE THE LEVEL OF
 PERFORMANCE ESTABLISHED IN THE PERFORMANCE STANDARD REQUIRED REMEDIAL
 ACTION.  /5/ AS ALREADY NOTED, PERFORMANCE STANDARDS MUST BE DEVELOPED
 WITH EMPLOYEE PARTICIPATION AND UNION INVOLVEMENT, AS MORE FULLY
 DISCUSSED ON PAGES 10-11, INFRA.
 
    THE DESCRIPTION OF THE STATUTORY AND REGULATORY REQUIREMENTS FOR
 PERFORMANCE APPRAISAL SYSTEMS, OUTLINED ABOVE, ESTABLISHES A DIRECT
 RELATIONSHIP BETWEEN THE CONTENT OF PERFORMANCE STANDARDS AND THE
 IDENTIFICATION OF CRITICAL ELEMENTS AND THE RIGHT OF AN AGENCY TO DIRECT
 EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE AND TO ASSIGN WORK
 UNDER SECTION 7106(A)(2)(B) OF THE STATUTE.  ALTHOUGH SIGNIFICANT
 ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS MAY BE NEGOTIATED, ANALYSIS OF
 THE RIGHTS OF MANAGEMENT TO DIRECT ITS EMPLOYEES AND ASSIGN WORK UNDER
 SECTION 7106(A) OF THE STATUTE, AS SUBJECT TO SECTION 7106(B), LEADS TO
 THE CONCLUSION THAT IDENTIFICATION OF CRITICAL ELEMENTS AND
 ESTABLISHMENT OF PERFORMANCE STANDARDS CONSTITUTE AN EXERCISE OF THE
 AFOREMENTIONED MANAGEMENT RIGHTS.
 
    THE RIGHT TO DIRECT EMPLOYEES IN THE AGENCY IS NOT DEFINED IN THE
 STATUTE, IS NOT SPECIFICALLY DISCUSSED IN THE LEGISLATIVE HISTORY AND
 HAS NOT BEEN APPLIED IN PRIOR DECISIONS OF THE AUTHORITY.  THEREFORE,
 CONSISTENT WITH THE MAIN PURPOSE AND MEANING OF THE STATUTE AND IN THE
 ABSENCE OF ANY INDICATION THAT THE PHRASE AS USED IN THE STATUTE HAS A
 MEANING OTHER THAN ITS ORDINARY MEANING, /6/ THE RIGHT "TO DIRECT . . .
 EMPLOYEES IN THE AGENCY" MEANS TO SUPERVISE AND GUIDE THEM IN THE
 PERFORMANCE OF THEIR DUTIES ON THE JOB.
 
    THE RIGHT TO ASSIGN WORK TO EMPLOYEES OR POSITIONS UNDER SECTION
 7106(A), SUBJECT TO THE PROVISIONS OF SECTION 7106(B), IS COMPOSED OF
 TWO DISCRETIONARY ELEMENTS:  (1) THE PARTICULAR DUTIES AND WORK TO BE
 ASSIGNED, AND (2) THE PARTICULAR EMPLOYEES TO WHOM OR POSITIONS TO WHICH
 IT WILL BE ASSIGNED.  /7/ FURTHERMORE, MANAGEMENT DISCRETION IN THIS
 REGARD INCLUDES THE RIGHT TO ASSIGN GENERAL CONTINUING DUTIES, /8/ TO
 MAKE SPECIFIC PERIODIC WORK ASSIGNMENTS TO EMPLOYEES, /9/ TO DETERMINE
 WHEN SUCH ASSIGNMENTS WILL OCCUR /10/ AND TO DETERMINE WHEN THE WORK
 WHICH HAS BEEN ASSIGNED WILL BE PERFORMED.  /11/
 
    IN THE CIRCUMSTANCES OF THIS CASE, THE RIGHTS TO DIRECT EMPLOYEES AND
 ASSIGN WORK ARE EXERCISED THROUGH SUPERVISING AND DETERMINING THE
 QUANTITY AND TIMELINESS OF WORK PRODUCTION, AND ESTABLISHING PRIORITIES
 FOR ITS ACCOMPLISHMENT.  THE ESTABLISHING OF "CRITICAL ELEMENTS" AND
 "PERFORMANCE STANDARDS" AS PROVIDED FOR IN LAW AND DEFINED BY REGULATION
 ARE AMONG THE WAYS IN WHICH MANAGEMENT SUPERVISES AND DETERMINES THE
 QUALITY, QUANTITY, AND TIMELINESS OF WORK REQUIRED OF EMPLOYEES.  MORE
 PARTICULARLY, UNDER SECTION 4302 OF THE CSRA AND OPM REGULATIONS, A
 PERFORMANCE STANDARD WITH RESPECT TO A CRITICAL ELEMENT OF AN EMPLOYEE'S
 JOB DETERMINES THE LEVEL OF WORK PERFORMANCE, I.E., WHETHER IN TERMS OF,
 AMONG OTHER THINGS, QUANTITY, QUALITY, OR TIMELINESS, WHICH IS
 ACCEPTABLE FOR, E.G., JOB RETENTION, AS EXPRESSED IN THE DISPUTED
 PROPOSAL.  IN ASSESSING THE WORK WHICH MUST BE DONE TO ACCOMPLISH ITS
 MISSION, THE AGENCY MAKES DETERMINATIONS BASED UPON ITS RESOURCES AS TO
 THE AGGREGATE LEVEL OF OUTPUT REQUIRED TO MEET THE NEED FOR ITS
 SERVICES.  AN INTEGRAL PART OF ACCOMPLISHING THIS MISSION IS ASSIGNING
 WORK AND ESTABLISHING PRIORITIES.  THESE DECISIONS, WHEN EXPRESSED IN
 TERMS OF AN INDIVIDUAL EMPLOYEE'S JOB, TRANSLATE INTO PERFORMANCE
 STANDARDS, THAT IS, THE QUALITY AND AMOUNT OF WORK NEEDED FROM EACH
 EMPLOYEE IN ORDER TO ACHIEVE THE AGENCY'S MISSION AND FUNCTIONS.  IN
 THIS CONNECTION, THE LEGISLATIVE HISTORY OF THE CSRA SHOWS CONGRESSIONAL
 CONCERN WITH PROMOTING GOVERNMENT EFFECTIVENESS AND EFFICIENCY, WITH THE
 DEVELOPMENT OF EMPLOYEE PERFORMANCE STANDARDS AND CRITICAL ELEMENTS TO
 ACHIEVE THIS END, AND ENCOURAGING EMPLOYEE PARTICIPATION IN THE
 ESTABLISHMENT OF SUCH PERFORMANCE STANDARDS.  /12/
 
    PERFORMANCE STANDARDS ARE NOT MERELY MEASURES OF EMPLOYEE
 PERFORMANCE.  THEY GO TO THE LEVELS OF OUTPUT AND THE QUALITY OF THE
 WORK PRODUCT.  IN THIS CASE, SUBSECTION A OF THE DISPUTED PROPOSAL WOULD
 ESTABLISH A MINIMUM REQUIREMENT FOR JOB RETENTION OF 9 BATCHES PER HOUR.
  WHILE THAT STANDARD COULD BE SIGNIFICANT IN TERMS OF EVALUATING THE
 PERFORMANCE OF INDIVIDUAL EMPLOYEES, IT ALSO WOULD ESTABLISH A LEVEL OF
 OUTPUT WHICH IS REQUIRED IN TERMS OF THE AGENCY'S DIRECTING EMPLOYEES
 AND ASSIGNING WORK.
 
    THE UNION ARGUES ITS PROPOSAL WOULD HAVE BEEN FOUND TO BE WITHIN THE
 DUTY TO BARGAIN PURSUANT TO A CITED DECISION OF THE FEDERAL LABOR
 RELATIONS COUNCIL UNDER E.O.  1491.  /13/ APART FROM OTHER
 CONSIDERATIONS, THE PRECEDENT RELIED UPON IS INAPPLICABLE IN THE
 CIRCUMSTANCES OF THE PRESENT CASE.  THE PERFORMANCE STANDARDS AND
 CRITICAL ELEMENTS WHICH ARE THE SUBJECT OF THE INSTANT DISPUTE ARE
 DEFINED BY AND MUST CONFORM TO THE REQUIREMENTS OF CHAPTER 43 OF THE
 CSRA, WHICH DIFFER APPRECIABLY FROM THE PERFORMANCE APPRAISAL PRACTICES
 WHICH WERE IN EFFECT AT THE TIME OF THE COUNCIL'S DECISION.  FURTHER, IN
 THE CITED CASE, THE COUNCIL HELD, IN EFFECT, THAT THE UNION'S PROPOSED
 PROCEDURE CONCERNING THE METHOD FOR SETTING PRODUCTION GOALS AND
 DESIGNATING VARIOUS LEVELS OF INDIVIDUAL PRODUCTION AS PRIMA FACIE
 EVIDENCE IN EVALUATING AN EMPLOYEE'S PERFORMANCE WITH RESPECT TO THAT
 FACTOR, DID NOT CONFLICT WITH ANY RESERVED MANAGEMENT RIGHTS.
 
    HOWEVER, IN THE INSTANT CASE, THE UNION'S PROPOSAL IS NOT PROCEDURAL.
  IT WOULD REQUIRE THE AGENCY TO BARGAIN OVER ITS STATUTORY AUTHORITY TO
 DIRECT EMPLOYEES AND ASSIGN WORK. IT SPECIFIES A CRITICAL ELEMENT OF AN
 EMPLOYEE'S JOB AND THE PERFORMANCE STANDARD WITH RESPECT TO THE JOB
 ELEMENT WHICH MUST BE MET FOR JOB RETENTION, THEREBY DIRECTLY
 INTERFERING WITH THE STATUTORY RIGHT OF MANAGEMENT TO DIRECT EMPLOYEES
 AND ASSIGN WORK.  AS DISCUSSED HEREINAFTER, THESE RIGHTS ARE SUBJECT TO
 SECTION 7106(B)(2) AND (3) WHICH REQUIRES MANAGEMENT TO NEGOTIATE ON
 PROCEDURES AND APPROPRIATE ARRANGEMENTS WITH RESPECT TO EMPLOYEES
 ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RIGHTS.
 
    THE UNION ALSO ASSERTS THE LEGISLATIVE HISTORY OF SECTION 7106
 INDICATES AN INTENT THAT PERFORMANCE STANDARDS BE SUBJECT TO THE DUTY TO
 BARGAIN.  IN SUPPORT OF THIS ASSERTION, IT CITES THE FOLLOWING STATEMENT
 OF CONGRESSMAN UDALL:  /14/
 
    THE INTENT OF THIS PROVISION (SECTION 7106(A)(2)(C)) IS TO PRESERVE
 AS BARGAINABLE (TO THE
 
    EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS) THE STANDARDS,
 CRITERIA, AND PROCEDURES
 
    FOR ESTABLISHING PROMOTION CERTIFICATES, WHILE ENSURING MANAGEMENT'S
 RIGHT TO MAKE THE ACTUAL
 
    SELECTION FROM THE CERTIFICATE, OR TO MAKE THE APPOINTMENT FROM ANY
 OTHER APPROPRIATE SOURCE.
 
    THE UNION CLAIMS THAT, IN THE ABOVE STATEMENT, CONGRESSMAN UDALL
 "CLEARLY STATED THAT PERFORMANCE STANDARDS WERE TO REMAIN NEGOTIABLE AS
 THEY WERE UNDER THE EXECUTIVE ORDER." /15/
 
    APART FROM ANY OTHER CONSIDERATIONS, THIS STATEMENT OF CONGRESSMAN
 UDALL IS NOT CONCERNED WITH PERFORMANCE STANDARDS.  CONGRESSMAN UDALL
 MADE THIS STATEMENT WITH RESPECT TO SECTION 7106(A)(2)(C) WHICH IS
 CONCERNED WITH MANAGEMENT'S RIGHT TO FILL POSITIONS AND TO MAKE
 SELECTIONS FOR APPOINTMENTS.  ON ITS FACE, THE QUOTED LANGUAGE IS
 SPECIFICALLY APPLICABLE TO ESTABLISHING PROMOTION CERTIFICATES.  THERE
 APPEARS TO BE NO DIRECT CONNECTION BETWEEN STANDARDS FOR ESTABLISHING
 PROMOTION CERTIFICATES AND PERFORMANCE STANDARDS.
 
    FURTHER, THE UNION CITED CERTAIN STATEMENTS IN THE CONGRESSIONAL
 RECORD RELATING TO AN EXPANDED SCOPE OF BARGAINING AND THE MANAGEMENT
 RIGHTS PROVISIONS OF THE STATUTE.  /16/ THESE WERE GENERAL STATEMENTS
 DISCUSSING THE INTERPRETATION AND APPLICATION OF THE MANAGEMENT RIGHTS
 PROVISIONS OF THE STATUTE.  THEY ESSENTIALLY STATE THAT MANAGEMENT
 RIGHTS PROVISIONS BAR NEGOTIATION ON THOSE MATTERS WHICH DIRECTLY AND
 INTEGRALLY AFFECT SUCH RIGHTS.  APART FROM OTHER CONSIDERATIONS, THE
 DECISION HERE IS NOT INCONSISTENT WITH THESE PRINCIPLES.
 
    BASED ON THE FOREGOING, NEGOTIATION OF PERFORMANCE STANDARDS AND
 CRITICAL ELEMENTS, AS CONTAINED IN THE DISPUTED PROPOSAL, WOULD
 INTERFERE WITH THE AUTHORITY OF AN AGENCY TO ACT AS PROVIDED IN SECTION
 7106(A).  IT ALREADY HAS BEEN NOTED THAT THIS AUTHORITY IS SUBJECT TO
 SECTION 7106(B).  NEGOTIATION OF CRITICAL ELEMENTS AND PERFORMANCE
 STANDARDS WOULD REQUIRE AN AGENCY TO BARGAIN THE QUANTITY, QUALITY, AND
 TIMELINESS STANDARDS WHICH IT MUST ESTABLISH IN MAKING WORK ASSIGNMENTS
 AND IN DIRECTING EMPLOYEES.  WITH PARTICULAR REGARD TO SUBSECTION A OF
 THE PROPOSAL AT ISSUE HEREIN, THE NEGOTIATION OF THE NUMBER OF BATCHES
 AN EMPLOYEE IS REQUIRED TO PROCESS UNDER THE PROPOSAL WOULD RESTRICT THE
 AGENCY'S DECISION IN ESTABLISHING PRIORITIES FOR THE PERFORMANCE OF
 WORK.  IN SO DOING, THE PROPOSAL WOULD PREVENT THE AGENCY FROM
 EXERCISING ITS AUTHORITY TO DETERMINE THE MINIMUM REQUIRED LEVEL OF
 OUTPUT.  THEREFORE, SUBSECTION A IS OUTSIDE THE AGENCY'S STATUTORY DUTY
 TO BARGAIN.
 
    THIS DECISION DOES NOT MEAN THAT ALL MATTERS RELATED TO ESTABLISHING
 PERFORMANCE APPRAISAL SYSTEMS ARE OUTSIDE THE DUTY TO BARGAIN.
 CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION 7101 AND
 OTHER SECTIONS OF THE STATUTE, PERFORMANCE APPRAISAL SYSTEMS, APART FROM
 THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF
 PERFORMANCE STANDARDS, ARE WITHIN THE DUTY TO BARGAIN, TO THE EXTENT
 THEY ARE CONSISTENT WITH LAW AND REGULATION.  TO THE EXTENT THAT AN
 AGENCY HAS DISCRETION WITH RESPECT TO A GIVEN MATTER RELATED TO SUCH
 SYSTEMS THE AGENCY MUST UPON REQUEST NEGOTIATE WITH AN EXCLUSIVE
 REPRESENTATIVE OVER THAT MATTER.  /17/ IN PARTICULAR, AS NOTED
 PREVIOUSLY, SECTION 4302(A)(2) OF THE CRSA REQUIRES THAT PERFORMANCE
 APPRAISAL SYSTEMS "ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING
 PERFORMANCE STANDARDS" BUT DOES NOT SPECIFY THE FORM WHICH SUCH EMPLOYEE
 PARTICIPATION MUST TAKE.  CONSEQUENTLY, AMONG OTHER SIGNIFICANT ASPECTS
 OF PERFORMANCE APPRAISAL SYSTEMS, THE MANNER IN WHICH A PARTICULAR
 AGENCY PROVIDES FOR SUCH EMPLOYEE PARTICIPATION IS WITHIN THE AGENCY'S
 DISCRETION AND, THEREFORE, WITHIN THE DUTY TO BARGAIN TO THE EXTENT THAT
 IT WOULD NOT PREVENT THE AGENCY FROM ESTABLISHING PERFORMANCE STANDARDS
 AND CRITICAL ELEMENTS PURSUANT TO ITS STATUTORY RIGHTS TO DIRECT
 EMPLOYEES AND ASSIGN WORK.  /18/
 
    IN ADDITION TO THE RIGHT OF AN EXCLUSIVE REPRESENTATIVE TO NEGOTIATE
 PROVISIONS RELATED TO THE FORM OF THE EMPLOYEE PARTICIPATION REQUIRED
 UNDER SECTION 4302 OF THE CSRA, THE INTENT OF THE STATUTE AND THE
 EXPRESS PROVISIONS OF SECTION 7114 REQUIRE THAT AN EXCLUSIVE
 REPRESENTATIVE BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT CERTAIN
 MEETINGS BETWEEN MANAGEMENT AND EMPLOYEES RELATING TO THE DEVELOPMENT
 AND THE IMPLEMENTATION OF PERFORMANCE APPRAISAL SYSTEMS.  CONGRESS
 STATED IN SECTION 7101 THAT STATUTORY PROTECTION OF THE RIGHT OF
 EMPLOYEES TO PARTICIPATE THROUGH LABOR ORGANIZATIONS OF THEIR OWN
 CHOOSING IN DECISIONS WHICH AFFECT THEM SAFEGUARDS THE PUBLIC INTEREST,
 CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, AND ENCOURAGES
 THE AMICABLE SETTLEMENT OF DISPUTES.  CONSISTENT WITH THIS LEGISLATIVE
 INTENT TO PROTECT THE RIGHT OF EMPLOYEES TO PARTICIPATE THROUGH LABOR
 ORGANIZATIONS, SECTION 7114 OF THE STATUTE PROVIDES, IN RELEVANT PART,
 AS FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   *          *          *          *
 
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
    (A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
 AGENCY AND ONE OR MORE
 
    EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
 GRIEVANCE OR ANY PERSONNEL
 
    POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT;  OR
 
    (B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
 THE AGENCY IN
 
    CONNECTION WITH AN INVESTIGATION IF--
 
    (I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY ACTION
 
    AGAINST THE EMPLOYEE;  AND
 
    (II) THE EMPLOYEE REQUESTS REPRESENTATION.
 
    AS IT PERTAINS TO THE MATTERS HERE IN DISPUTE, SECTION 7114 PROVIDES
 THAT AN EXCLUSIVE REPRESENTATIVE IS ENTITLED TO BE REPRESENTED AT ANY
 MEETING BETWEEN A REPRESENTATIVE OF THE AGENCY AND A UNIT EMPLOYEE WHICH
 CONSTITUTES A FORMAL DISCUSSION WITHIN THE MEANING OF THE STATUTE AND
 WHICH INVOLVES MATTERS PERTAINING TO PERFORMANCE APPRAISAL SYSTEMS,
 I.E., THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF
 PERFORMANCE STANDARDS.  SIMILARLY, THE EXCLUSIVE REPRESENTATIVE IS
 ENTITLED TO BE REPRESENTED AT AN EXAMINATION OF AN EMPLOYEE IN
 CONNECTION WITH AN INVESTIGATION WHENEVER A UNIT EMPLOYEE REASONABLY
 BELIEVES THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION FOR
 UNACCEPTABLE PERFORMANCE UNDER SECTION 4303 OF THE CSRA ("ACTIONS BASED
 ON UNACCEPTABLE PERFORMANCE") AND REQUESTS REPRESENTATION.  /19/
 
    IN ADDITION, SECTION 7106(B)(2) PROVIDES THAT MANAGEMENT HAS A DUTY
 TO BARGAIN ON THE PROCEDURES WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN
 EXERCISING SECTION 7106 RIGHTS.  SIMILARLY, SECTION 7106(B)(3) PROVIDES
 THAT MANAGEMENT HAS A DUTY TO BARGAIN ON APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS AUTHORITY.
 /20/ THE LEGISLATIVE HISTORY RELEVANT TO THESE PROVISIONS MAKES CLEAR
 THAT THEY ARE INTENDED TO AUTHORIZE AN EXCLUSIVE REPRESENTATIVE TO
 NEGOTIATE ON SUCH MATTERS EXCEPT TO THE EXTENT THAT THE ESTABLISHMENT OF
 PROCEDURES OR APPROPRIATE ARRANGEMENTS THROUGH NEGOTIATIONS WOULD
 PREVENT THE AGENCY FROM ACTING AT ALL.  INSOFAR AS IT IS CONSISTENT WITH
 MANAGEMENT'S AUTHORITY TO ACT, CONGRESS INTENDED THE PARTIES TO WORK OUT
 THEIR DIFFERENCES IN CONNECTION WITH THESE MATTERS THROUGH NEGOTIATIONS.
  /21/ THUS, TO THE EXTENT CONSISTENT WITH LAW AND REGULATION, THE
 PROCEDURAL CONTEXT OF PERFORMANCE EVALUATION, INCLUDING PROCEDURES
 RELATED TO THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT
 OF PERFORMANCE STANDARDS, AND APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
 ADVERSELY AFFECTED BY ACTIONS TAKEN UNDER THOSE STANDARDS, ARE SUBJECT
 TO BARGAINING.  THIS IS CONSISTENT WITH THE MANDATE OF CONGRESS AS
 EXPRESSED IN SECTION 4302 THAT PERFORMANCE APPRAISAL SYSTEMS MUST
 ENCOURAGE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS.
 
    WITH FURTHER REFERENCE TO PROCEDURES, OPM SUGGESTED AN EXCLUSIVE
 REPRESENTATIVE COULD NEGOTIATE WITH REGARD TO THE PROCESS BY WHICH
 CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ARE COMMUNICATED TO
 EMPLOYEES, PERIODIC APPRAISALS AT LEAST ON AN ANNUAL BASIS, THE MANNER
 IN WHICH THE PERFORMANCE OF EMPLOYEES ON DETAIL WILL BE APPRAISED, THE
 MANNER IN WHICH AN EMPLOYEE'S DISAGREEMENT WITH HIS OR HER PERFORMANCE
 APPRAISAL WILL BE REVIEWED, AND THE PROCESS BY WHICH PROPOSED
 PERFORMANCE STANDARDS WILL BE REVIEWED WITHIN THE AGENCY.  /22/ CREATIVE
 APPROACHES TO COLLECTIVE BARGAINING MAY EXPAND THE POSSIBILITIES
 SUGGESTED.  THE STATED EXAMPLES REFLECT THE WIDE RANGE OF EMPLOYEE
 PARTICIPATION POSSIBLE THROUGH NEGOTIATION WITHIN UNITS OF EXCLUSIVE
 RECOGNITION AND THE VARIETY OF PROTECTIONS FOR EMPLOYEES WHICH MAY BE
 NEGOTIATED AS A PART OF SUCH SYSTEMS.
 
    FINALLY, AN EMPLOYEE AGAINST WHOM DISCIPLINARY ACTION HAS BEEN TAKEN
 BASED ON UNACCEPTABLE PERFORMANCE UNDER SECTION 4303 OF THE CSRA, MAY
 APPEAL THE ACTION TO THE MERIT SYSTEMS PROTECTION BOARD PURSUANT TO
 SECTION 7701 OF THE CSRA OR, ALTERNATIVELY, RAISE THE MATTER IN THE
 NEGOTIATED GRIEVANCE PROCEDURE PURSUANT TO SECTION 7121.  /23/ IN THE
 CONTEXT OF NEGOTIATED GRIEVANCE PROCEDURES IT WOULD BE POSSIBLE FOR AN
 EMPLOYEE AGAINST WHOM ACTION HAS BEEN TAKEN FOR UNACCEPTABLE
 PERFORMANCE
 TO GRIEVE SUCH ACTION, CONTENDING THAT THE PERFORMANCE STANDARD AS
 APPLIED TO THE GRIEVANT PURSUANT TO WHICH THE DISCIPLINE WAS IMPOSED IS
 IMPROPER, OR IMPOSSIBLE OF PERFORMANCE, UNDER REQUIREMENTS OF LAW OR THE
 PARTIES' AGREEMENT.  WITH REGARD TO THE REQUIREMENTS OF LAW, SECTION
 4302(B)(1) OF THE CSRA REQUIRES THAT PERFORMANCE STANDARDS BE OBJECTIVE
 AND JOB-RELATED.  AS WAS ACKNOWLEDGED BY OPM AT THE ORAL ARGUMENT, IN
 THE CASE OF AN EMPLOYEE SUBJECT TO DISCIPLINE FOR UNACCEPTABLE
 PERFORMANCE, AN ARBITRATOR WOULD BE ABLE TO FIND A STANDARD AS APPLIED
 WAS NOT OBJECTIVE OR JOB-RELATED IN RULING ON A GRIEVANCE.  /24/
 
    WITH REGARD TO THE PARTIES' AGREEMENT, NOTHING IN THIS DECISION WOULD
 PRECLUDE AN EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING CRITERIA FOR THE
 APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT HAS ESTABLISHED.
 AS THE AUTHORITY DETERMINED WITH RESPECT TO A PROPOSAL REQUIRING THAT
 PERFORMANCE STANDARDS BE "FAIR AND EQUITABLE" IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120 (1980), DECIDED THIS DATE,
 SUCH A CRITERION WOULD NOT INTERFERE WITH THE AGENCY'S DISCRETION AS TO
 THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF THE
 CONTENT OF A PARTICULAR PERFORMANCE STANDARD.  THIS CRITERION WOULD
 MERELY ESTABLISH A GENERAL REQUIREMENT BY WHICH THE APPLICATION OF
 CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT
 COULD SUBSEQUENTLY BE EVALUATED WHEN THEY ARE CHALLENGED IN A GRIEVANCE
 FILED PURSUANT TO SECTION 7121(E) OF THE STATUTE.  THIS TYPE OF REVIEW
 WOULD NOT PRECLUDE THE AGENCY FROM INITIALLY DETERMINING THE CONTENT OF
 THE STANDARD, NOR WOULD IT RESULT IN SUBSTITUTION OF AN ARBITRATOR'S
 JUDGMENT FOR THAT OF THE AGENCY AND SETTING A NEW STANDARD.  IT WOULD
 SIMPLY DETERMINE IF THE STANDARD ESTABLISHED BY MANAGEMENT AS APPLIED TO
 THE GRIEVANT COMPLIED WITH THE REQUIREMENTS OF THE PARTIES' AGREEMENT.
 
    IN CONCLUSION, BASED UPON THE FOREGOING, SUBSECTION A OF THE UNION'S
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT IS WITHIN THE
 FRAMEWORK OF THE RIGHT OF MANAGEMENT TO DIRECT EMPLOYEES AND TO ASSIGN
 WORK UNDER SECTION 7106(A), AND IS NOT A PROCEDURE OR AN APPROPRIATE
 ARRANGEMENT WITHIN THE MEANING OF SECTION 7106(B)(2) AND (3) OF THE
 STATUTE.
 
    TURNING TO SUBSECTION B OF THE UNION'S PROPOSAL, IT WOULD ESTABLISH A
 MINIMUM PERFORMANCE LEVEL OF 9.0 BATCHES PER HOUR FOR THE EMPLOYEE TO BE
 ELIGIBLE TO RECEIVE WITHIN-GRADE INCREASES.  THE AGENCY CONTENDS THE
 UNION'S PROPOSAL WOULD VIOLATE 5 CFR 531.407(C)(1), SET FORTH BELOW (SEE
 PAGE 14, INFRA).  IT ASSERTS THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
 UNDER SECTION 7117 WHICH PROVIDES, AS STATED PREVIOUSLY, THAT THE SCOPE
 OF THE DUTY TO BARGAIN DOES NOT EXTEND TO MATTERS WHICH ARE INCONSISTENT
 WITH ANY GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE INITIAL QUESTION IS WHETHER THE APPLICABLE REGULATION OF THE
 OFFICE OF PERSONNEL MANAGEMENT CONSTITUTES A "GOVERNMENT-WIDE RULE OR
 REGULATION" WITHIN THE MEANING OF THE STATUTE.  THE AUTHORITY CONSIDERED
 THE MEANING OF THE PHRASE "GOVERNMENT-WIDE RULE OR REGULATION" IN
 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE
 SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118 (1980) AND DETERMINED THAT
 THE PROVISIONS OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS IN THAT
 CASE WERE GENERALLY APPLICABLE THROUGHOUT THE FEDERAL GOVERNMENT AND,
 AS
 SUCH, CONSTITUTED GOVERNMENT-WIDE REGULATIONS WITHIN THE MEANING OF
 SECTION 7117.
 
    THE REGULATION AT ISSUE HEREIN IS CODIFIED AT TITLE 5 OF THE CODE OF
 FEDERAL REGULATIONS AS A PERSONNEL MANAGEMENT REGULATION PUBLISHED BY
 THE OFFICE OF PERSONNEL MANAGEMENT.  THIS REGULATION IS BINDING ON MOST
 GENERAL SCHEDULE EMPLOYEES OF THE EXECUTIVE BRANCH AND CERTAIN EMPLOYEES
 OF THE LEGISLATIVE BRANCH.  (5 CFR 531.402, 5 U.S.C. 5102.) IN THIS
 MANNER, THE REGULATION IS GENERALLY APPLICABLE TO THE FEDERAL CIVILIAN
 WORK FORCE AS A WHOLE, THOUGH NOT, OF COURSE, TO EVERY FEDERAL EMPLOYEE.
  IT IS TYPICAL OF THE REGULATIONS ISSUED BY OPM AND WOULD APPEAR TO BE
 THE KIND OF REGULATION CONTEMPLATED AS A GOVERNMENT-WIDE REGULATION BY
 THE REFERENCE TO OPM IN THE HOUSE COMMITTEE REPORT, AS CITED IN THE NEW
 ORLEANS DISTRICT DECISION, SUPRA.  THEREFORE, THE REGULATION ASSERTED BY
 THE AGENCY AS A BAR TO NEGOTIATION OF SUBSECTION B OF THE UNION'S
 PROPOSAL IS A GOVERNMENT-WIDE REGULATION WITHIN THE MEANING OF SECTION
 7117(A).
 
    THE QUESTION THEN BECOMES WHETHER SUBSECTION B OF THE PROPOSAL IS
 INCONSISTENT WITH THE CITED REGULATION.  THAT REGULATION PROVIDES AS
 FOLLOWS:
 
    SEC. 531.407 WORK OF AN ACCEPTABLE LEVEL OF COMPETENCE.
 
   *          *          *          *
 
 
    (C) DETERMINATION.  (1) IN MAKING HIS DETERMINATIONS, THE HEAD OF AN
 AGENCY OR HIS DESIGNEE
 
    SHALL MAKE EFFECTIVE USE OF THIS AUTHORITY TO STIMULATE OPTIMUM
 PERFORMANCE AMONG HIS
 
    EMPLOYEES AND:
 
    (I) SHALL NOT AWARD WITHIN-GRADE INCREASES TO EMPLOYEES WHO DO NOT
 CLEARLY MEET THE
 
    STATUTORY STANDARD FOR SUCH AWARD, RECOGNIZING THAT FOR THESE
 INCREASES PERFORMANCE MUST BE OF
 
    SUFFICIENT LEVEL TO MERIT A PAY INCREASE, NOT JUST ADEQUATE FOR
 RETENTION ON THE JOB . . .
 
    THE UNION'S PROPOSAL PROVIDES THAT THE STANDARD FOR ELIGIBILITY TO
 RECEIVE WITHIN-GRADE STEP INCREASES FOR ACCOUNTS MAINTENANCE CLERKS
 SHALL BE THE SAME AS THE STANDARD OF PERFORMANCE FOR JOB RETENTION.  IN
 CONTRAST, THE LANGUAGE OF THE ABOVE-QUOTED REGULATION REQUIRES THAT A
 PERFORMANCE LEVEL SUFFICIENT TO RECEIVE A WITHIN-GRADE INCREASE MUST
 EXCEED THE LEVEL WHICH IS MERELY ADEQUATE FOR JOB RETENTION.  WITHOUT
 PASSING UPON WHETHER PROPOSALS RELATED TO ACCEPTABLE LEVELS OF
 COMPETENCE FOR THE RECEIPT OF WITHIN-GRADE INCREASES UNDER 5 U.S.C.
 5335 ARE OTHERWISE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117,
 SUBSECTION B OF THE UNION'S PROPOSAL, INSOFAR AS IT PROVIDES FOR A
 PERFORMANCE LEVEL FOR THE GRANTING OF WITHIN-GRADE INCREASES WHICH DOES
 NOT EXCEED THE STANDARD ADEQUATE FOR JOB RETENTION IN THE CIRCUMSTANCES
 OF THIS CASE, IS INCONSISTENT WITH GOVERNMENT-WIDE REGULATION.
 
    IN CONCLUSION, FOR THE REASONS SET FORTH ABOVE, THE UNION'S PROPOSAL
 IS FOUND TO BE INCONSISTENT WITH FEDERAL LAW AND GOVERNMENT-WIDE
 REGULATION AND, THUS, IS OUTSIDE THE SCOPE OF BARGAINING ESTABLISHED IN
 SECTION 7117(A)(1) OF THE STATUTE.  ACCORDINGLY, THE AGENCY'S ALLEGATION
 IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    MR. FRANK D. FERRIS
 
    DIRECTOR OF TRAINING AND NEGOTIATIONS
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, NW., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
    MR. WILLIAM R. KANSIER
 
    SUPERVISORY LABOR RELATIONS SPECIALIST
 
    PERSONNEL BRANCH
 
    BUREAU OF THE PUBLIC DEBT
 
    200 THIRD STREET
 
    PARKERSBURG, WEST VIRGINIA 26101
 
    MR. HENRY DESEGUIRANT
 
    DIRECTOR OF PERSONNEL
 
    15TH STREET AND PENNSYLVANIA AVENUE, NW.
 
    WASHINGTON, D.C.  20220
 
    MR. ANTHONY F. INGRASSIA
 
    ASSISTANT DIRECTOR
 
    LABOR-MANAGEMENT RELATIONS
 
    OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET, NW., ROOM 7508
 
    WASHINGTON, D.C.  20415
 
    /1/ 5 U.S.C. 7106 PROVIDES, AS RELEVANT HEREIN, AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   *          *          *          *
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED;
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   *          *          *          *
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /2/ 5 U.S.C. 4302 PROVIDES AS FOLLOWS:
 
    SEC. 4302.  ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
 
    (A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
 SYSTEMS WHICH--
 
    (1) PROVIDE FOR PERIODIC APPRAISALS OF JOB PERFORMANCE OF EMPLOYEES;
 
    (2) ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING PERFORMANCE
 STANDARDS;  AND
 
    (3) USE THE RESULTS OF PERFORMANCE APPRAISALS AS A BASIS FOR
 TRAINING, REWARDING,
 
    REASSIGNING, PROMOTING, REDUCING IN GRADE, RETAINING, AND REMOVING
 EMPLOYEES;
 
    (B) UNDER REGULATIONS WHICH THE OFFICE OF PERSONNEL MANAGEMENT SHALL
 PRESCRIBE, EACH
 
    PERFORMANCE APPRAISAL SYSTEM SHALL PROVIDE FOR--
 
    (1) ESTABLISHING PERFORMANCE STANDARDS WHICH WILL, TO THE MAXIMUM
 EXTENT FEASIBLE, PERMIT
 
    THE ACCURATE EVALUATION OF JOB PERFORMANCE ON THE BASIS OF OBJECTIVE
 CRITERIA (WHICH MAY
 
    INCLUDE THE EXTENT OF COURTESY DEMONSTRATED TO THE PUBLIC) RELATED TO
 THE JOB IN QUESTION FOR
 
    EACH EMPLOYEE OR POSITION UNDER THE SYSTEM;
 
    (2) AS SOON AS PRACTICABLE, BUT NOT LATER THAN OCTOBER 1, 1981, WITH
 RESPECT TO INITIAL
 
    APPRAISAL PERIODS, AND THEREAFTER AT THE BEGINNING OF EACH FOLLOWING
 APPRAISAL PERIOD,
 
    COMMUNICATING TO EACH EMPLOYEE THE PERFORMANCE STANDARDS AND THE
 CRITICAL ELEMENTS OF THE
 
    EMPLOYEE'S POSITION;
 
    (3) EVALUATING EACH EMPLOYEE DURING THE APPRAISAL PERIOD ON SUCH
 STANDARDS;
 
    (4) RECOGNIZING AND REWARDING EMPLOYEES WHOSE PERFORMANCE SO
 WARRANTS;
 
    (5) ASSISTING EMPLOYEES IN IMPROVING UNACCEPTABLE PERFORMANCE;  AND
 
    (6) REASSIGNING, REDUCING IN GRADE, OR REMOVING EMPLOYEES WHO
 CONTINUE TO HAVE UNACCEPTABLE
 
    PERFORMANCE BUT ONLY AFTER THE OPPORTUNITY TO DEMONSTRATE ACCEPTABLE
 PERFORMANCE.
 
    /3/ TRANSCRIPT OF ORAL ARGUMENT BEFORE THE AUTHORITY ON NEGOTIABILITY
 OF PROPOSALS RELATING TO PERFORMANCE APPRAISAL SYSTEMS, AT 152.
 
    /4/ 5 CFR 430.202(D) AND (E)(1980).
 
    /5/ THESE REGULATIONS LITERALLY PROVIDE FOR THE ESTABLISHMENT OF
 PERFORMANCE STANDARDS BY MANAGEMENT.  HOWEVER, ASSUMING THAT THESE
 REGULATIONS ARE GOVERNMENT-WIDE REGULATIONS WITHIN THE MEANING OF
 SECTION 7117 OF THE STATUTE AND, AS SUCH, COULD CONSTITUTE A BAR TO
 NEGOTIATIONS, THE FACT THAT THE REGULATIONS ARE EXPRESSED IN TERMS OF
 MANAGEMENT ACTION TO ESTABLISH PERFORMANCE STANDARDS WOULD NOT IN AND OF
 ITSELF RENDER PROPOSALS TO BARGAIN THOSE STANDARDS OUTSIDE THE DUTY TO
 BARGAIN.  CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
 REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118 (1980) AT 118 OF
 DECISION.
 
    /6/ SEE WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED
 (1976)).
 
    /7/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO,