American Federation of Government Employees, AFL-CIO, Local 32 (Labor Organization) and Office of Personnel Management, Washington D.C. (Activity) 

 



[ v03 p784 ]
03:0784(120)NG
The decision of the Authority follows:


 3 FLRA No. 120
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32
 (Labor Organization)
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-177-2 
                                                          177-3 
                                                          177-4 
                                                          177-5
 
                     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.).  /1/
 
                          UNION PROPOSALS 2 AND 3
 
    SECTION.  A PERFORMANCE STANDARD IS A STATEMENT OF THE EXPRESSED
 LEVEL OF ACHIEVEMENT IN
 
    TERMS OF THE QUALITY, QUANTITY, TIMELINESS, ETC., REQUIRED FOR THE
 PERFORMANCE OF AN ELEMENT
 
    OF AN EMPLOYEE'S JOB.  (ALL OF THIS PROPOSAL IS ALLEGED TO BE OUTSIDE
 THE DUTY TO BARGAIN.)
 
    SECTION 5.  ALL PERFORMANCE ELEMENTS IDENTIFIED FOR AN EMPLOYEE'S
 POSITION, SPECIFYING
 
    THOSE WHICH ARE CRITICAL, WILL BE COMMUNICATED TO THE EMPLOYEE IN
 WRITING AT THE BEGINNING OF
 
    EACH APPRAISAL PERIOD.  A CRITICAL ELEMENT IS ONE WHICH IS SO
 IMPORTANT THAT INADEQUATE
 
    PERFORMANCE OF IT OUTWEIGHS ACCEPTABLE OR BETTER PERFORMANCE IN OTHER
 ASPECTS OF THE JOB.  (IN
 
    SECTION 5, ONLY THE UNDERSCORED SENTENCE HAS BEEN ALLEGED TO BE
 OUTSIDE THE DUTY TO BARGAIN.)
 
                    QUESTIONS HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSALS ARE, AS
 ALLEGED BY THE AGENCY, INCONSISTENT WITH GOVERNMENT-WIDE RULES OR
 REGULATIONS AND THEREFORE EXCLUDED FROM THE OBLIGATION TO BARGAIN UNDER
 SECTION 7117(A)(1) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSALS ARE NOT INCONSISTENT WITH GOVERNMENT-WIDE
 RULES OR REGULATIONS AND, THEREFORE, ARE NOT EXCLUDED FROM THE
 OBLIGATION TO BARGAIN BY REASONS OF SECTION 7117(A)(1) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 5 CFR 2424.10, THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSALS ARE NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  /2/
 
    REASONS:  THE AGENCY ALLEGES THE PROPOSALS ARE EXCLUDED FROM THE DUTY
 TO BARGAIN BY SECTION 7117(A)(1) OF THE STATUTE, WHICH PROVIDES 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.
 
    THE AGENCY CONTENDS REGULATIONS CONCERNING PERFORMANCE APPRAISAL ARE
 GOVERNMENT-WIDE REGULATIONS, AND "AS SUCH, MANAGEMENT IS PROHIBITED FROM
 NEGOTIATING A DEFINITION WHICH WOULD DIFFER FROM THAT PROMULGATED IN THE
 GOVERNMENT-WIDE REGULATION." SPECIFICALLY, THE AGENCY CONTENDS SINCE THE
 REGULATIONS AT 5 CFR 430.202(D) AND (E) DEFINE, RESPECTIVELY, THE TERMS
 "PERFORMANCE STANDARD" AND "CRITICAL ELEMENT," ANY PROPOSED DEFINITIONS
 WHICH DIFFER FROM THE REGULATORY LANGUAGE WOULD CONTRAVENE THE
 REGULATION AND, THEREFORE, WOULD NOT BE WITHIN THE DUTY TO BARGAIN.  THE
 UNION, HOWEVER, CONTENDS, IN ORDER FOR A PROPOSAL TO BE OUTSIDE THE DUTY
 TO BARGAIN, THE PROPOSAL MUST BE INCONSISTENT WITH THE REGULATIONS "IN
 THE SENSE OF BEING MUTUALLY REPUGNANT OR CONTRADICTORY." THUS, THE UNION
 ARGUES, USE OF THE PROPOSED DEFINITIONS WOULD NOT RESULT IN
 NONCOMPLIANCE WITH THE REGULATIONS.  FINALLY, THE UNION NOTES THAT OTHER
 LANGUAGE TENTATIVELY AGREED UPON BETWEEN THE PARTIES WOULD PROVIDE:
 
    IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
 OFFICIALS AND EMPLOYEES ARE
 
    GOVERNED BY THE PROVISIONS OF EXISTING AND FUTURE LAWS AND
 REGULATIONS . . .
 
    THE UNION HERE CONCLUDES THE PROPOSAL CANNOT BE READ WITHOUT
 REFERENCE TO THE APPLICABLE OFFICE OF PERSONNEL MANAGEMENT (OPM)
 REGULATIONS AND MUST BE INTERPRETED AND APPLIED CONSISTENTLY WITH THOSE
 REGULATIONS.
 
    SECTION 4302 OF THE CIVIL SERVICE REFORM ACT (CSRA) /3/ REQUIRES EACH
 AGENCY TO DEVELOP ONE OR MORE PERFORMANCE APPRAISAL SYSTEMS AND STATES
 THE BASIC REQUIREMENTS OF SUCH SYSTEMS.  THE OPM REGULATIONS ISSUED
 PURSUANT TO THIS SECTION, WHICH ARE RELIED UPON BY THE AGENCY, PROVIDE
 IN PERTINENT PART AS FOLLOWS:
 
    (D) "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.
 
    (E) "CRITICAL ELEMENT" MEANS A COMPONENT OF AN EMPLOYEE'S JOB THAT IS
 OF SUFFICIENT
 
    IMPORTANCE THAT PERFORMANCE BELOW THE MINIMUM STANDARD ESTABLISHED BY
 MANAGEMENT REQUIRES
 
    REMEDIAL ACTION AND DENIAL OF A WITHIN-GRADE INCREASE, AND MAY BE THE
 BASIS FOR REMOVING OR
 
    REDUCING THE GRADE LEVEL OF THAT EMPLOYEE.  SUCH ACTION MAY BE TAKEN
 WITHOUT REGARD TO
 
    PERFORMANCE ON OTHER COMPONENTS OF THE JOB.
 
    ASSUMING, WITHOUT DECIDING, THAT THE REGULATIONS AT 5 CFR 430.202 ARE
 GOVERNMENT-WIDE REGULATIONS, THE PROPOSALS HERE ARE NOT INCONSISTENT
 WITH THE CITED REGULATIONS IN THAT THEY ARE NOT INCOMPATIBLE OR
 IRRECONCILABLE WITH THOSE REGULATIONS.  THE ONLY DIFFERENCE BETWEEN THE
 UNION'S PROPOSED DEFINITION OF THE TERM "ESTABLISHED BY MANAGEMENT,"
 WHILE THE PROPOSAL HERE IS SILENT IN THAT RESPECT.  IN THAT REGARD,
 HOWEVER, THE AUTHORITY HELD IN NATIONAL TREASURY EMPLOYEES UNION AND
 DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119
 (1980), DECIDED THIS DATE, THAT MANAGEMENT RETAINS THE RIGHT UNDER
 SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE TO ESTABLISH PERFORMANCE
 STANDARDS.  SIMILARLY, THE REGULATION AT 5 CFR 430.202(E) REGARDING
 CRITICAL ELEMENTS REFERS TO CERTAIN REQUIRED "REMEDIAL ACTION" FOR
 SUBSTANDARD PERFORMANCE, WHILE THE UNION'S PROPOSED SECTION 5 IS SILENT
 IN THAT RESPECT.  IN ALL CASES REGARDING REMEDIAL ACTION, THE REGULATION
 WOULD GOVERN;  THEREFORE, MANAGEMENT'S RIGHT TO TAKE SUCH ACTION IS
 PROTECTED.
 
    INSOFAR AS THE PROPOSALS HERE ARE SILENT WITH RESPECT TO THE MATTERS
 SET FORTH ABOVE. AND THE RECORD DOES NOT INDICATE THAT THE UNION INTENDS
 THAT THE PROPOSALS BE APPLIED IN ANY MANNER INCONSISTENT WITH LAW AND
 REGULATION, THE PROPOSALS ARE NOT INCONSISTENT WITH THE REGULATIONS
 CITED BY THE AGENCY HERE.  IN ANY EVENT, THE STATUTE, AS APPLIED BY THE
 AUTHORITY, AND THE APPLICABLE REGULATION WOULD GOVERN THE MATTERS NOT
 ADDRESSED BY THE PROPOSALS.  ACCORDINGLY, SINCE THE PROPOSALS HERE ARE
 THUS NOT INCONSISTENT WITH THE REGULATIONS CITED BY THE AGENCY, THE
 AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSALS ARE NOT WITHIN THE DUTY
 TO BARGAIN MUST BE SET ASIDE.
 
                             UNION PROPOSAL 4
 
    SECTION 6.  EMPLOYEES SHALL PARTICIPATE IN ESTABLISHING PERFORMANCE
 STANDARDS THROUGH
 
    COLLECTIVE BARGAINING, TO THE EXTENT THIS MATTER IS WITHIN THE SCOPE
 OF BARGAINING.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS A MATTER
 WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY THE
 AGENCY, VIOLATES SECTION 7106 /4/ OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL VIOLATES SECTION 7106(A)(2)(A) AND (B) OF
 THE STATUTE INSOFAR AS IT REQUIRES NEGOTIATION ON THE ESTABLISHMENT AND
 CONTENT OF PERFORMANCE STANDARDS.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR 2424.10, THE
 AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SUSTAINED.
 
    REASONS:  BOTH THE UNION AND THE AGENCY HAVE INTERPRETED THIS
 PROPOSAL AS REQUIRING COLLECTIVE BARGAINING CONCERNING THE ESTABLISHMENT
 AND SUBSTANCE OF PERFORMANCE STANDARDS AND THE PROPOSAL IS SO
 INTERPRETED FOR THE PURPOSE OF THIS DECISION.  THUS, THE SUBSTANTIVE
 ISSUE PRESENTED HERE IS IDENTICAL TO THAT ADDRESSED BY THE AUTHORITY IN
 BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119 (1980), SUPRA.  IN THAT
 DECISION, THE AUTHORITY HELD THAT A PROPOSAL TO ESTABLISH A PARTICULAR
 CRITICAL ELEMENT AND PERFORMANCE STANDARD WOULD DIRECTLY INTERFERE WITH
 THE EXERCISE OF MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN
 WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE AND, THEREFORE,
 WAS NOT WITHIN THE DUTY TO BARGAIN.  SINCE THE PROPOSAL HERE WOULD
 LIKEWISE REQUIRE NEGOTIATIONS CONCERNING THE ESTABLISHMENT AND CONTENT
 OF PERFORMANCE STANDARDS, IT BEARS NO DISPOSITIVE DIFFERENCE FROM THE
 PROPOSAL HELD NOT TO BE WITHIN THE DUTY TO BARGAIN IN THE BUREAU OF THE
 PUBLIC DEBT CASE.  THEREFORE, FOR THE REASONS FULLY SET FORTH IN BUREAU
 OF THE PUBLIC DEBT, THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD NOT
 TO BE WITHIN THE DUTY TO BARGAIN.  IT IS EMPHASIZED, HOWEVER, AS STATED
 IN BUREAU OF THE PUBLIC DEBT (AT PAGE 2 OF THE DECISION) THAT:
 
    . . . 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 A LABOR ORGANIZATION UNDER THE STATUTE.
 SPECIFICALLY, UNDER SECTION 7117,
 
    AS TO THE 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.
 
    THUS, IN THE INSTANT CASE, THE AGENCY'S RIGHT TO IDENTIFY CRITICAL
 ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS IS SUBJECT TO THE RIGHT OF
 A LABOR ORGANIZATION TO NEGOTIATE ON SIGNIFICANT ASPECTS OF PERFORMANCE
 APPRAISAL SYSTEMS, INCLUDING THE FORM OF THE EMPLOYEE PARTICIPATION IN
 THE ESTABLISHMENT OF PERFORMANCE STANDARDS.  FURTHERMORE, MANAGEMENT
 HAS
 AN OBLIGATION TO NEGOTIATE PROCEDURES AND APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S ESTABLISHING PERFORMANCE
 STANDARDS.  IN ADDITION, AN EXCLUSIVE REPRESENTATIVE MUST BE GIVEN THE
 OPPORTUNITY TO BE REPRESENTED AT CERTAIN MEETINGS BETWEEN MANAGEMENT
 AND
 EMPLOYEES RELATING TO THE DEVELOPMENT AND IMPLEMENTATION OF PERFORMANCE
 APPRAISAL SYSTEMS AND, WHEN REQUESTED, AT ANY INVESTIGATORY INTERVIEW
 WHEN A UNIT EMPLOYEE BELIEVES THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINE FOR UNACCEPTABLE PERFORMANCE.  FINALLY, AN EMPLOYEE AGAINST
 WHOM DISCIPLINARY ACTION HAS BEEN TAKEN FOR UNACCEPTABLE PERFORMANCE HAS
 A RIGHT TO CHALLENGE UNDER APPELLATE PROCEDURES OR A NEGOTIATED
 GRIEVANCE PROCEDURE THE ACTION TAKEN.  HOWEVER, INSOFAR AS THE PROPOSAL
 HERE AS INTERPRETED BY THE PARTIES REQUIRES BARGAINING OVER THE CONTENT
 OF PERFORMANCE STANDARDS, IT IS OUTSIDE THE DUTY TO BARGAIN, AND THE
 AGENCY'S ALLEGATION MUST BE SUSTAINED.
 
                             UNION PROPOSAL 5
 
    SECTION.  ALL PERFORMANCE STANDARDS WILL BE FAIR AND EQUITABLE AND
 CONSISTENT WITH THE
 
    CLASSIFICATION STANDARDS FOR THE JOB.  AN EMPLOYEE WHO BELIEVES A
 STANDARD DOES NOT MEET THE
 
    ABOVE CRITERIA MAY GRIEVE UNDER THE PROCEDURES IN SECTION.
 
                    QUESTIONS HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL AS A WHOLE IS
 A MATTER WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY
 THE AGENCY, THE PROPOSAL AS A WHOLE VIOLATES SECTIONS 7106(A)(2)(A) OR
 7106(B)(1).
 
    AN ADDITIONAL QUESTION PRESENTED IS WHETHER, AS FURTHER ALLEGED BY
 THE AGENCY, THE "CLASSIFICATION STANDARDS" PORTION OF THE PROPOSAL
 VIOLATES 5 U.S.C.  4302(B)(1) OR WHETHER THAT PORTION OF THE PROPOSAL
 VIOLATES SECTION 7106(A)(2)(B) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL AS A WHOLE DOES NOT VIOLATE SECTIONS
 7106(A)(2)(A) OR 7106(B)(1) OF THE STATUTE.  FURTHER, THE
 "CLASSIFICATION STANDARDS" PORTION OF THE PROPOSAL DOES NOT VIOLATE
 SECTION 4302(B)(1) OF THE CSRA OR SECTION 7106(A)(2)(B) OF THE STATUTE.
 THEREFORE, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7117(A)(1).  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS, 5 CFR 2424.10, THE AGENCY'S ALLEGATIONS THAT THE
 DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN ARE SET ASIDE.  /5/
 
    REASONS:  THE AGENCY CONTENDS THIS PROPOSAL IN ITS ENTIRETY WOULD
 INTERFERE WITH THE EXERCISE OF CERTAIN MANAGEMENT RIGHTS UNDER SECTION
 7106(A) AND (B)(1) OF THE STATUTE.  MORE PARTICULARLY, THE AGENCY ARGUES
 THE PROPOSAL WOULD INTERFERE WITH ITS RIGHT TO DIRECT EMPLOYEES UNDER
 SECTION 7106(A)(2)(A) OF THE STATUTE.  ESSENTIALLY, THE AGENCY CONTENDS
 THE "FAIR AND EQUITABLE" PORTION OF THE PROPOSAL HERE WOULD PREVENT THE
 AGENCY FROM EXERCISING ITS DISCRETION IN ESTABLISHING PERFORMANCE
 STANDARDS AND MIGHT ULTIMATELY PERMIT A THIRD PARTY TO ESTABLISH SUCH
 STANDARDS IN DEROGATION OF ITS RIGHT TO DIRECT EMPLOYEES.  THE AGENCY
 ALSO CONTENDS GENERALLY THAT THE PROPOSAL HERE WOULD INTERFERE WITH ITS
 RIGHT TO DISCIPLINE EMPLOYEES UNDER SECTION 7106(A)(2)(A) BECAUSE THE
 PROPOSAL WOULD SEVERELY CIRCUMSCRIBE MANAGEMENT'S RIGHT TO TAKE ACTION
 AGAINST AN EMPLOYEE FOR POOR PERFORMANCE.  THE AGENCY ALSO ARGUES
 GENERALLY THAT THE PROPOSAL AS A WHOLE WOULD INTERFERE WITH ITS RIGHT
 UNDER SECTION 7106(B)(1) TO DETERMINE THE NUMBERS, TYPES, AND GRADES OF
 EMPLOYEES.
 
    THE AGENCY MAKES SEVERAL ADDITIONAL ARGUMENTS THAT THE PORTION OF THE
 PROPOSAL WHICH WOULD REQUIRE THAT "PERFORMANCE STANDARDS WILL BE . . .
 CONSISTENT WITH THE CLASSIFICATION STANDARDS FOR THE JOB" IS EXCLUDED
 FROM THE DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT WITH SECTION
 4302(B)(1) OF THE CSRA REGARDING ESTABLISHMENT OF PERFORMANCE APPRAISAL
 SYSTEMS, AND VIOLATES THE RIGHT TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE.  THE AGENCY ARGUES IN ESSENCE THAT, SINCE
 SECTION 4302(B)(1) REQUIRES PERFORMANCE STANDARDS TO BE RELATED TO THE
 JOB IN QUESTION, THE UNION'S PROPOSAL WOULD VIOLATE THAT STATUTORY
 REQUIREMENT INSOFAR AS THE PROPOSAL WOULD RELATE PERFORMANCE STANDARDS
 TO CLASSIFICATION STANDARDS, RATHER THAN TO THE JOB.  IN ADDITION, THE
 AGENCY CONTENDS THAT THIS PORTION OF THE PROPOSAL WOULD LIMIT
 MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
 STATUTE.  SPECIFICALLY, THE AGENCY ASSERTS THAT THE PROPOSAL WOULD
 INTERFERE WITH MANAGEMENT'S RIGHT TO ASSIGN WORK BY RESTRICTING
 IDENTIFICATION OF CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE
 STANDARDS TO ONLY THOSE LIMITED DUTIES EXPLICITLY SET FORTH IN THE
 CLASSIFICATION STANDARDS FOR THE EMPLOYEE'S POSITION.  SIMILARLY, THE
 AGENCY CLAIMS THAT MANAGEMENT WOULD BE UNABLE TO ASSIGN AND EVALUATE
 EMPLOYEE PERFORMANCE WITH RESPECT TO DUTIES UNRELATED TO AN EMPLOYEE'S
 CLASSIFICATION, AND QUESTIONS WHETHER ANY PERFORMANCE STANDARD COULD BE
 ESTABLISHED FOR POSITIONS FOR WHICH NO CLASSIFICATION STANDARD EXISTS.
 
    SECTION 7106(A) AND (B)(1) OF THE STATUTE RECOGNIZES CERTAIN
 MANAGEMENT RIGHTS.  HOWEVER, SECTION 7106(B)(2) AND (3) OF THE STATUTE
 PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN ON PROCEDURES WHICH
 MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS AND ON
 APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF MANAGEMENT'S AUTHORITY.  /6/ INSOFAR AS IT IS CONSISTENT
 WITH THE RIGHT OF MANAGEMENT ULTIMATELY TO ACT WITH RESPECT TO ITS
 AUTHORITY, CONGRESS INTENDED THE PARTIES TO WORK OUT THEIR DIFFERENCES
 ON PROCEDURES AND APPROPRIATE ARRANGEMENTS THROUGH NEGOTIATIONS.  /7/
 
    IN BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119 (1980), SUPRA, THE
 AUTHORITY APPLIED SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE
 CONCERNING THE RIGHTS OF MANAGEMENT TO DIRECT EMPLOYEES AND TO ASSIGN
 WORK.  ANALYZING THE PURPOSE AND FUNCTION OF CRITICAL ELEMENTS AND
 PERFORMANCE STANDARDS, THE AUTHORITY FOUND THAT THE RIGHTS TO DIRECT
 EMPLOYEES AND TO ASSIGN WORK UNDER THE STATUTE INCLUDE THE AUTHORITY TO
 ESTABLISH CRITICAL ELEMENTS AND PERFORMANCE STANDARDS.  ACCORDINGLY, THE
 AUTHORITY HELD THAT THE PROPOSAL IN THAT CASE WHICH IDENTIFIED A
 CRITICAL ELEMENT AND ESTABLISHED A QUANTITATIVE PERFORMANCE STANDARD FOR
 THAT JOB ELEMENT WAS NOT WITHIN THE DUTY TO BARGAIN.  HOWEVER, AS WAS
 EMPHASIZED IN THAT DECISION, AN AGENCY HAS A DUTY TO BARGAIN UNDER
 SECTION 7106(B)(3) OF THE STATUTE, ON APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS AUTHORITY
 UNDER SECTION 7106(A), I.E., ACTIONS TAKEN UNDER SUCH STANDARDS.  MORE
 PARTICULARLY, THE AUTHORITY STATED THAT NOTHING IN ITS DECISION WOULD
 PRECLUDE AN EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING CRITERIA FOR THE
 APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT HAS ESTABLISHED.
 ACCORDINGLY, INSOFAR AS THE PROPOSAL HERE MERELY WOULD ESTABLISH A
 GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
 CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT
 MAY SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES
 THAT HE HAS BEEN ADVERSELY AFFECTED BY THE APPLICATION OF MANAGEMENT'S
 PERFORMANCE STANDARD TO HIM, AND THE AUTHORITY SO INTERPRETS THE
 PROPOSAL FOR PURPOSES OF THIS DECISION, IT IS WITHIN THE DUTY TO
 BARGAIN.  THUS, AN EMPLOYEE AGAINST WHOM MANAGEMENT TAKES DISCIPLINARY
 ACTION FOR UNACCEPTABLE PERFORMANCE MAY, IN A GRIEVANCE OF SUCH ACTION
 PURSUANT TO SECTION 7121(E) OF THE STATUTE RAISE THE ISSUE OF WHETHER
 THE PERFORMANCE STANDARDS AS APPLIED TO HIM MEET THE CONTRACTUAL
 REQUIREMENTS.  /8/ SUCH REVIEW BY AN ARBITRATOR WOULD NOT, CONTRARY TO
 THE AGENCY'S ALLEGATIONS, PRECLUDE THE AGENCY FROM INITIALLY DETERMINING
 THE CONTENT OF THE STANDARD, NOR WOULD IT RESULT IN THE SUBSTITUTION OF
 THE ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY AND THE SETTING OF A
 NEW STANDARD;  IT WOULD SIMPLY DETERMINE IF THE STANDARD ESTABLISHED BY
 MANAGEMENT AS APPLIED TO THE GRIEVANT COMPLIED WITH THE "FAIR AND
 EQUITABLE . . . " REQUIREMENTS OF THE PARTIES' AGREEMENT.
 
    THUS, THE PROPOSAL HERE DOES NOT IMPOSE ON THE AGENCY A PARTICULAR
 DECISION AS TO THE QUANTITY, QUALITY, AND TIMELINESS OF PRODUCTION OR
 THE ESTABLISHING OF PRIORITIES, OR OTHERWISE ESTABLISH THE CONTENT OF
 PERFORMANCE STANDARDS IN DEROGATION OF MANAGEMENT'S RIGHT TO DIRECT
 EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.  SIMILARLY, SINCE
 THE PROPOSAL DOES NOT PREVENT MANAGEMENT FROM ESTABLISHING PERFORMANCE
 STANDARDS AND TAKING ACTION UNDER SECTION 4303 OF THE CSRA AGAINST
 EMPLOYEES BASED UPON SUCH STANDARDS, IT DOES NOT PREVENT MANAGEMENT
 FROM
 TAKING DISCIPLINARY ACTION AGAINST AN EMPLOYEE PURSUANT TO SECTION
 7106(A)(2)(A).  FURTHER, THE RECORD DOES NOT DISCLOSE AND IT IS NOT
 OTHERWISE APPARENT IN WHAT MANNER THE PROPOSAL IS RELATED TO NUMBERS,
 TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY OR
 ORGANIZATIONAL SUBDIVISION.  ACCORDINGLY, THE AGENCY'S ALLEGATIONS THAT
 THE PROPOSAL AS A WHOLE IS NOT WITHIN THE DUTY TO BARGAIN BY REASON OF
 SECTION 7106(B)(1) CANNOT BE SUSTAINED.
 
    WITH RESPECT TO THE AGENCY'S ADDITIONAL ALLEGATION THAT THE PORTION
 OF THE PROPOSAL WHICH STATES THAT "PERFORMANCE STANDARDS WILL BE . . .
 CONSISTENT WITH THE CLASSIFICATION STANDARDS FOR THE JOB" IS
 INCONSISTENT WITH SECTION 4302 OF THE CSRA, THE UNION EXPRESSLY CONCEDES
 THAT "PERFORMANCE STANDARDS MUST BE ULTIMATELY BASED ON THE ACTUAL
 DUTIES PROPERLY ASSIGNED THE EMPLOYEES." MOREOVER, WITH RESPECT TO THE
 EXPRESS TERMS OF THE PROPOSAL, I.E., THAT PERFORMANCE STANDARDS MUST BE
 "CONSISTENT WITH CLASSIFICATION STANDARDS FOR THE JOB," THE UNION STATES
 AS FOLLOWS:
 
    ALL THAT THE PROPOSAL MEANS, IS THAT, FOR EXAMPLE, WHEN QUALITY OF
 WORK IS GRADE-DEFINING,
 
    THE STANDARD FOR QUALITY AT A GIVEN LEVEL MUST BE AT THAT LEVEL, AND
 NOT AT A HIGHER OR LOWER
 
    LEVEL . . . UNDER THE PROPOSAL, CLASSIFICATION STANDARDS ONLY COME
 INTO PLAY TO THE EXTENT
 
    THEY ARE "FOR THE JOB."
 
    THUS, UNDER THE UNION'S INTERPRETATION OF ITS PROPOSED LANGUAGE, THE
 UNION DOES NOT IN ANY MANNER SEEK TO BARGAIN OVER POLICIES, PRACTICES
 AND MATTERS RELATING TO THE CLASSIFICATION OF ANY POSITION.  THE SOLE
 AND LIMITED EFFECT OF THE UNION'S PROPOSAL AS INTERPRETED BY THE UNION,
 WHICH INTERPRETATION IS CONSISTENT WITH THE LANGUAGE OF THE PROPOSAL AND
 IS ADOPTED FOR PURPOSES OF THIS DECISION, IS AS FOLLOWS:  IN THE RARE
 INSTANCE WHERE AN APPLICABLE CLASSIFICATION STANDARD USES A QUANTITATIVE
 OR QUALITATIVE PERFORMANCE CRITERION TO DISTINGUISH AMONG GRADE LEVELS,
 THE PERFORMANCE STANDARD ESTABLISHED SHOULD REFLECT THIS DISTINCTION.
 THAT IS, UNDER THIS PROPOSAL, WHERE SUCH A CLASSIFICATION STANDARD IS
 APPLICABLE, AN EMPLOYEE COULD GRIEVE THE APPLICATION OF A PERFORMANCE
 STANDARD WITH RESPECT TO ANY TASK ASSIGNED TO HIM IF THAT PERFORMANCE
 STANDARD REFLECTED A LEVEL OF ACHIEVEMENT DIFFERENT FROM THE LEVEL
 SPECIFIED FOR THE GRADE TO WHICH THE EMPLOYEE'S POSITION IS CLASSIFIED.
 IN ESSENCE, THE "CLASSIFICATION STANDARDS" PORTION OF THE PROPOSAL
 MERELY CONSTITUTES A SPECIFIC ASPECT OF THE "FAIR AND EQUITABLE"
 REQUIREMENT OF THE PROPOSAL UNDER WHICH THE APPLICATION OF PERFORMANCE
 STANDARDS MAY BE REVIEWED BY AN ARBITRATOR.  IT HAS A LIMITED EFFECT AS
 JUST STATED IN ONLY APPLYING IN THOSE RARE INSTANCES WHERE QUANTITATIVE
 OR QUALITATIVE PERFORMANCE CRITERIA ARE USED IN A CLASSIFICATION
 STANDARD TO DISTINGUISH AMONG GRADE LEVELS.  THUS, AS THE UNION
 EXPRESSLY STATES, THE PROPOSAL DOES NOT PREVENT THE AGENCY FROM
 ESTABLISHING, PURSUANT TO SECTION 4302(B)(1), PERFORMANCE STANDARDS
 RELATED TO THE JOB PERFORMED BY THE EMPLOYEE.  ACCORDINGLY, THE PROPOSAL
 HERE DOES NOT IN ANY MANNER SEEK TO NEGOTIATE OVER CLASSIFICATION
 MATTERS OR THE SUBSTANCE OF PERFORMANCE STANDARDS, NOR IS IT
 INCONSISTENT WITH SECTION 4302 AS ALLEGED BY THE AGENCY.
 
    FURTHER, AS NOTED ABOVE, THE AGENCY HAS ALLEGED THAT THE PROPOSAL
 WOULD INTERFERE WITH ITS RIGHT TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE.  SPECIFICALLY, THE AGENCY CONTENDS THAT
 THIS RIGHT WOULD BE INFRINGED UPON IN THREE RESPECTS.  THAT IS, THE
 AGENCY CONTENDS IT WOULD BE UNABLE TO ASSIGN DUTIES NOT PRESCRIBED IN
 THE CLASSIFICATION STANDARDS, IT WOULD BE UNABLE TO ASSIGN DUTIES
 UNRELATED TO THOSE STANDARDS, AND IT WOULD BE UNABLE TO ESTABLISH
 PERFORMANCE STANDARDS WHERE NO CLASSIFICATION STANDARDS ARE APPLICABLE
 TO THE POSITION OR TO ANY PARTICULAR DUTIES THEREOF.  NONE OF THESE
 ARGUMENTS CAN BE SUSTAINED FOR THE SAME REASON, WHICH IS THAT THE
 PROPOSAL ON ITS FACE AND AS INTERPRETED BY THE UNION DOES NOT IN ANY
 MANNER LIMIT THE ASSIGNMENT OF WORK OR THE SCOPE OF DUTIES UPON WHICH AN
 EMPLOYEE CAN BE EVALUATED.  THUS, WITHOUT REGARD TO WHETHER THE DUTIES
 ASSIGNED TO AN EMPLOYEE ARE STATED IN OR ARE UNRELATED TO THE
 CLASSIFICATION STANDARDS APPLICABLE TO THE EMPLOYEE'S JOB, OR WHETHER
 THERE IS ANY CLASSIFICATION STANDARD APPLICABLE TO THE EMPLOYEE'S JOB,
 THE PROPOSAL DOES NOT CONFLICT WITH MANAGEMENT'S RIGHT TO ASSIGN TO AN
 EMPLOYEE ANY DUTIES AND TO ESTABLISH PERFORMANCE STANDARDS AND CRITICAL
 ELEMENTS WITH RESPECT TO ANY ONE OF THEM.  ACCORDINGLY, THE AGENCY'S
 ALLEGATION THAT THE PROPOSAL WOULD INTERFERE WITH ITS RIGHT TO ASSIGN
 WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE MUST BE SET ASIDE.
 
    BASED UPON THE FOREGOING, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN
 UNDER SECTION 7106(B)(3) OF THE STATUTE AS AN APPROPRIATE ARRANGEMENT
 FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S AUTHORITY UNDER THE
 STATUTE TO DIRECT EMPLOYEES AND ASSIGN WORK THROUGH THE ESTABLISHMENT OF
 PERFORMANCE STANDARDS AND TO DISCIPLINE EMPLOYEES FOR UNACCEPTABLE
 PERFORMANCE.
 
    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:
 
    MS. SUE A. VAN VOORHIS
 
    DIRECTOR, OFFICE OF PERSONNEL
 
    OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET, NW.
 
    WASHINGTON, D.C.  20415
 
    MR. PHILLIP R. KETE
 
    LABOR RELATIONS CONSULTANT
 
    GAFFNEY, ANSPACH, SCHEMBER,
 
    KLIMASKI & MARKS, P.C.
 
    1712 N STREET, NW.
 
    WASHINGTON, D.C.  20036
 
    HON. ALAN K. CAMPBELL
 
    CHAIRMAN, OFFICE OF PERSONNEL
 
    MANAGEMENT
 
    1900 E STREET, NW.
 
    WASHINGTON, D.C.  20415
 
    /1/ PURSUANT TO THE REQUIREMENT TO EXPEDITE PROCEEDINGS TO THE EXTENT
 PRACTICABLE CONTAINED IN SECTION 7117(C)(6) OF THE STATUTE AND SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR 2424.10, UNION
 PROPOSAL 1 (O-NG-177-1) IN THE ABOVE-CAPTIONED MATTER HAS BEEN SEVERED
 FROM THE PROPOSALS CONSIDERED HEREIN AND WILL BE CONSIDERED SEPARATELY.
 
    /2/ IN DECIDING THAT THE PROPOSALS ARE WITHIN THE DUTY TO BARGAIN,
 THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.
 
    /3/ SECTION 4302 OF THE CSRA (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 AN OPPORTUNITY TO DEMONSTRATE ACCEPTABLE
 PERFORMANCE.
 
    /4/ 5 U.S.C. 7106 PERTINENTLY PROVIDES-
 
    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
 (.)
 
    /5/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN,