American Federation of Government Employees, Local 3804, AFL-CIO (Union) and Federal Deposit Insurance Corporation, Chicago Region, Illinois (Agency)

 



[ v07 p217 ]
07:0217(34)NG
The decision of the Authority follows:


 7 FLRA No. 34
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3804
 Union
 
 and
 
 FEDERAL DEPOSIT INSURANCE
 CORPORATION, CHICAGO REGION, ILLINOIS
 Agency
 
                                            Case No. O-NG-254
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
 AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE), (5 U.S.C. 7101-7135).  THE ISSUE PRESENTED IS THE
 NEGOTIABILITY OF EIGHT UNION PROPOSALS.  /1/
 
    THE AGENCY CONTENDS, FOR TWO REASONS, THAT IT HAS NO DUTY TO BARGAIN
 OVER ANY OF THE EIGHT PROPOSALS IN DISPUTE CONCERNING EMPLOYEE
 PERFORMANCE APPRAISALS.  THE AGENCY HAS ARGUED GENERALLY THAT, AS A
 GOVERNMENT CORPORATION, IT IS NOT SUBJECT TO THE PERFORMANCE APPRAISAL
 PROVISIONS OF CHAPTER 43 OF TITLE 5, UNITED STATES CODE, AS AMENDED BY
 SECTION 203 OF THE CIVIL SERVICE REFORM ACT OF 1978 (CSRA).  IN THAT
 RESPECT, 5 U.S.C. 4301(1)(I) EXCLUDES GOVERNMENT CORPORATIONS FROM THE
 DEFINITION OF EXECUTIVE AGENCIES SUBJECT TO 5 U.S.C.CHAPTER 43.  THUS,
 THE AGENCY STATES THAT, SINCE IT IS NOT REQUIRED BY LAW TO ESTABLISH A
 PERFORMANCE APPRAISAL SYSTEM AS ENVISIONED BY 5 U.S.C. 4301-4305, TO THE
 EXTENT THAT THE UNION'S PROPOSALS WOULD REQUIRE TO TO ESTABLISH SUCH A
 SYSTEM, THEY ARE INCONSISTENT WITH 5 U.S.C. 4301(1)(I) AND ARE OUTSIDE
 THE DUTY TO BARGAIN.
 
    THE FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC) IS A GOVERNMENT
 CORPORATION. SEE 12 U.S.C. 1811;  31 U.S.C. 856.  /2/ BY EXCLUDING
 GOVERNMENT CORPORATIONS FROM THE DEFINITION OF EXECUTIVE AGENCIES
 SUBJECT TO CHAPTER 43 OF 5 U.S. CODE, 5 U.S.C.  4301(1)(I) NEITHER
 REQUIRES SUCH CORPORATIONS TO ADOPT THE PRESCRIBED PERFORMANCE
 APPRAISAL
 SYSTEMS NOR PRECLUDES THEM FROM DOING SO.  THUS, THE AGENCY'S ALLEGATION
 THAT THE ESTABLISHMENT OF A PERFORMANCE APPRAISAL SYSTEM IS CONTRARY TO
 LAW CANNOT BE SUSTAINED.
 
    ADDITIONALLY, THE AGENCY HAS ARGUED GENERALLY THAT THE UNION'S
 PROPOSED ARTICLE VI CONFLICTS WITH AN AGENCY POLICY, WHICH IS EMBODIED
 IN A REGULATION ENTITLED "EMPLOYEE PERFORMANCE EVALUATION PROGRAM - A
 HANDBOOK FOR RATING AND REVIEWING OFFICIALS," FOR WHICH THERE IS A
 COMPELLING NEED AND, THEREFORE, IT HAS NO DUTY TO BARGAIN ON ANY OF THE
 PROPOSALS IN DISPUTE HEREIN UNDER SECTION 7117(A)(2) OF THE STATUTE.
 /3/ THE AGENCY STATES THAT THIS REGULATION IS SUPPORTED BY A COMPELLING
 NEED FOR TWO REASONS:  FIRST, THE REGULATION IS USED TO MONITOR EMPLOYEE
 PERFORMANCE AND, AS SUCH AS, IS ESSENTIAL TO THE ACCOMPLISHMENT OF THE
 AGENCY'S WORKLOAD;  AND SECOND, ITS REGULATION IS NECESSARY TO INSURE
 THE MAINTENANCE OF BASIC MERIT PRINCIPLES, I.E., THAT EMPLOYEES SHOULD
 BE RETAINED ON THE BASIS OF THE ADEQUACY OF THEIR PERFORMANCE, AS
 EXPRESSED IN 5 U.S.C.  2301(B)(6).  /4/
 
    SECTION 7117(A)(2) OF THE STATUTE PROVIDES THAT AGENCY REGULATIONS
 FOR WHICH A COMPELLING NEED EXISTS, AS DETERMINED UNDER REGULATIONS
 PRESCRIBED BY THE AUTHORITY, WILL BAR NEGOTIATION ON A CONFLICTING UNION
 PROPOSAL.  THE AUTHORITY'S ILLUSTRATIVE CRITERIA FOR DETERMINING THE
 COMPELLING NEED FOR AGENCY RULES AND REGULATIONS UNDER SECTION
 7117(A)(2) ARE PROVIDED IN SECTION 2424.11 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.11 (1981)) WHICH PROVIDES, AS RELEVANT HEREIN,
 AS FOLLOWS:
 
    SEC. 2424.11 ILLUSTRATIVE CRITERIA.
 
    A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
 ANY CONDITION OF
 
    EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE OR REGULATION
 MEETS ONE OR MORE OF THE
 
    FOLLOWING ILLUSTRATIVE CRITERIA:
 
    (A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
 HELPFUL OR DESIRABLE, TO THE
 
    ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
 AGENCY OR PRIMARY NATIONAL
 
    SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
 AN EFFECTIVE AND
 
    EFFICIENT GOVERNMENT.
 
    (B) THE RULE OR REGULATION IS NECESSARY TO INSURE THE MAINTENANCE OF
 BASIC MERIT
 
    PRINCIPLES.  AS INDICATED IN THE LEGISLATIVE HISTORY OF THE STATUTE,
 THE COMPELLING NEED PROVISIONS OF THE STATUTE ARE MEANT TO INSURE THAT
 BARGAINING PROPOSALS CONCERNING CONDITIONS OF EMPLOYMENT OF BARGAINING
 UNIT EMPLOYEES, WHICH ARE OTHERWISE WITHIN THE DUTY TO BARGAIN, ARE
 BARRED FROM NEGOTIATION DUE TO A CONFLICT WITH AGENCY RULES OR
 REGULATIONS ONLY IF THE AGENCY INVOLVED DEMONSTRATES AND JUSTIFIES,
 UNDER CRITERIA ESTABLISHED BY THE AUTHORITY, AN OVERRIDING NEED FOR THE
 POLICIES REFLECTED IN THE RULES OR REGULATIONS TO BE UNIFORMLY APPLIED
 THROUGHOUT THE AGENCY.  /5/ HENCE, THE AUTHORITY'S ILLUSTRATIVE
 CRITERION FOR DETERMINING COMPELLING NEED IN SECTION 2424.11(A) OF THE
 RULES AND REGULATIONS, CONSISTENT WITH THE LEGISLATIVE INTENT, REQUIRES
 AN AGENCY TO DEMONSTRATE THAT THE RULE OR REGULATION UPON WHICH IT
 RELIES AS A BAR TO NEGOTIATION ON A CONFLICTING UNION PROPOSAL IS
 "ESSENTIAL AS DISTINGUISHED FROM HELPFUL OR DESIRABLE" TO ACHIEVE
 CERTAIN ENDS.  THIS STANDARD OF ESSENTIALITY IS THE MEASURE UNDER THE
 STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS OF WHETHER THE
 NECESSITY CLAIMED FOR AN AGENCY REGULATION TO BAR NEGOTIATIONS ON A
 CONFLICTING UNION PROPOSAL RISES TO THE LEVEL OF A COMPELLING NEED.  /6/
 LIKEWISE, THE AUTHORITY'S ILLUSTRATIVE CRITERION AT SECTION 2424.11(B)
 OF THE RULES AND REGULATIONS REQUIRES AN AGENCY TO DEMONSTRATE THE
 NECESSITY OF THE AGENCY REGULATION TO THE MAINTENANCE OF BASIC MERIT
 PRINCIPLES.
 
    THE AGENCY HEREIN HAS FAILED TO DEMONSTRATE THAT ITS REGULATION IS
 ESSENTIAL, AS DISTINCT FROM MERELY HELPFUL OR DESIRABLE, IN THE
 ACHIEVEMENT OF THE STATED OBJECTIVES SINCE IT DOES NOT INDICATE WHY THE
 OBJECTIVE OF MONITORING EMPLOYEE PERFORMANCE COULD NOT BE ACHIEVED
 THROUGH ANY MEANS OTHER THAN ITS PERFORMANCE RATING REGULATION.  THUS,
 IN FAILING TO DEMONSTRATE THAT, IN THE ABSENCE OF ITS REGULATION, THE
 AGENCY WOULD BE UNABLE TO MONITOR EMPLOYEE PERFORMANCE, IT MUST BE
 CONCLUDED THAT THE AGENCY HAS NOT MET ITS BURDEN OF SHOWING THAT ITS
 REGULATION IS ESSENTIAL TO THE ACCOMPLISHMENT OF THAT OBJECTIVE.
 SIMILARLY, THE AGENCY HAS, IN ESSENCE, ARGUED THAT THE OBJECTIVE OF
 EVALUATING EMPLOYEES IS NECESSARY TO MAINTAIN THE MERIT PRINCIPLE IN
 QUESTION, BUT HAS FAILED TO DEMONSTRATE THAT ITS REGULATION IS NECESSARY
 AS THE ONLY MEANS OF ATTAINING THAT OBJECTIVE.  BASED UPON THE
 FOREGOING, IT MUST BE DETERMINED THAT THE AGENCY HAS NOT DEMONSTRATED
 THAT ITS REGULATION IS SUPPORTED BY A COMPELLING NEED.  ACCORDINGLY,
 SUCH REGULATION DOES NOT BAR NEGOTIATION ON ANY OF THE UNION'S PROPOSALS
 HEREIN.  THE AUTHORITY WILL NOW CONSIDER THE NEGOTIABILITY OF EACH OF
 THE SPECIFIC PROPOSALS.
 
                             UNION PROPOSAL 1
 
    ARTICLE VI, SECTION 1.  THE PARTIES AGREE THAT CRITICAL ELEMENTS OF A
 POSITION USED FOR
 
    PERFORMANCE APPRAISAL PURPOSES WILL BE BASED ONLY ON THE GRADE
 CONTROLLING FACTORS OF A
 
    POSITION FOR WHICH THERE WILL BE AN ACCURATE POSITION OR JOB
 DESCRIPTION.  SUCH CRITICAL
 
    ELEMENTS FOR PERFORMANCE APPRAISALS WILL BE WEIGHTED IN DIRECT
 PROPORTION TO THE RELATIVE
 
    IMPORTANCE IN GRADE DETERMINATION.  EACH EMPLOYEE WILL BE GIVEN A
 COPY OF THE CRITICAL
 
    ELEMENTS FOR THEIR POSITION AT THE BEGINNING OF THE APPRAISAL YEAR.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS
 INCONSISTENT WITH SECTION 7106(A)(2) AND (B)(1) OF THE STATUTE AND/OR
 CHAPTER 75 OF TITLE 5, U.S. CODE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE FIRST AND SECOND SENTENCES OF THE PROPOSAL
 ARE INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW OF THE FIRST AND SECOND SENTENCES OF THE PROPOSAL BE, AND IT
 HEREBY IS, DISMISSED.  THE LAST SENTENCE OF THE PROPOSAL, HOWEVER, IS
 NOT INCONSISTENT WITH SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE OR
 CHAPTER 75 OF TITLE 5, U.S. CODE.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 1981)),
 IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
 TO BY THE PARTIES) BARGAIN CONCERNING THE LAST SENTENCE OF THE PROPOSAL.
  /7/
 
    REASONS:  THE AGENCY HAS ALLEGED THAT THE FIRST TWO SENTENCES OF THE
 PROPOSAL ARE INCONSISTENT WITH SECTION 7106(A) OF THE STATUTE.  THOSE
 TWO SENTENCES WOULD REQUIRE THAT THE CRITICAL ELEMENTS OF A POSITION BE
 BASED ONLY ON THE GRADE CONTROLLING FACTORS OF A POSITION IN DIRECT
 PROPORTION TO THEIR RELATIVE IMPORTANCE IN GRADE DETERMINATION.  IN THIS
 RESPECT THE PROPOSAL IS IDENTICAL TO THE PROPOSAL WHICH WAS BEFORE THE
 AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT
 CORPORATION, MESSENA, NEW YORK, 5 FLRA NO. 14(1981), AND WHICH WAS HELD
 TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF
 THE STATUTE.  /8/ THEREFORE, FOR THE REASONS SET FORTH IN DETAIL IN
 SAINT LAWRENCE SEAWAY, THIS PORTION OF THE PROPOSAL MUST BE HELD TO BE
 OUTSIDE THE DUTY TO BARGAIN.
 
    ALTHOUGH THE LAST SENTENCE OF THE PRESENT PROPOSAL ALSO WAS CONTAINED
 IN THE PROPOSAL IN SAINT LAWRENCE SEAWAY, THE AGENCY IN THAT CASE DID
 NOT ALLEGE THAT THE SENTENCE WAS NOT NEGOTIABLE.  IN THE PRESENT CASE,
 HOWEVER, THE AGENCY HAS ALLEGED THAT THE LAST SENTENCE OF THE PROPOSAL
 IS INCONSISTENT WITH CHAPTER 75 OF TITLE 5, UNITED STATES CODE /9/ AND
 SECTION 7106(A)(2)(A) AND (B)(1) /10/ OF THE STATUTE BECAUSE IT WOULD
 PROHIBIT THE AGENCY FROM TAKING ADVERSE OR DISCIPLINARY ACTION AGAINST
 AN EMPLOYEE EXCEPT IN CONNECTION WITH AN ANNUAL PERFORMANCE APPRAISAL.
 ON ITS FACE, THE LAST SENTENCE OF THE PROPOSAL PRESCRIBES ONLY WHEN
 EMPLOYEES SHALL BE GIVEN A COPY OF THE CRITICAL ELEMENTS FOR THEIR
 POSITIONS.  NOTHING IN THAT SENTENCE OR THE UNION'S ARGUMENTS WITH
 RESPECT TO THE PROPOSAL IS CONCERNED WITH WHEN THE AGENCY MAY DISCIPLINE
 AN EMPLOYEE FOR UNACCEPTABLE PERFORMANCE.  THUS, THE AGENCY HAS
 MISCONSTRUED THE PROPOSAL, AND SINCE THE EXPLICIT LANGUAGE OF THE
 PROPOSAL MAKES IT CLEAR THAT THE PROPOSAL DOES NOT CONFLICT WITH ANY
 STATUTORILY PROTECTED MANAGEMENT RIGHTS, THE AGENCY'S ARGUMENTS THAT THE
 PROPOSAL IS INCONSISTENT WITH THE STATUTORY PROVISIONS CITED ABOVE
 CANNOT BE SUSTAINED.
 
                             UNION PROPOSAL 2
 
    ARTICLE VI, SECTION 2.  STANDARDS USED FOR MEASUREMENT OF PERFORMANCE
 FOR CRITICAL ELEMENTS
 
    OF THE JOB WILL BE FAIR, OBJECTIVE, REASONABLE AND DIRECTLY RELATED
 TO AN EMPLOYEE'S OFFICIAL
 
    POSITION.  STANDARDS OF PERFORMANCE WILL MAKE ALLOWANCES FOR FACTORS
 BEYOND THE CONTROL OF THE
 
    EMPLOYEE.  SUCH STANDARDS WILL BE IN WRITING AND GIVEN TO EMPLOYEES
 AT THE BEGINNING OF THE
 
    APPRAISAL YEAR.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(2)(A) AND (B)(1) OF THE STATUTE AND/OR CHAPTER 75 OF
 TITLE 5, U.S. CODE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS NOT INCONSISTENT WITH
 SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE OR CHAPTER 75 OF TITLE 5,
 U.S. CODE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING THE PROPOSAL.  /11/
 
    REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA
 NO. 120(1980), THE AUTHORITY HELD THAT A UNION COULD NEGOTIATE CRITERIA
 FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT HAS
 ESTABLISHED.  THAT IS, THE AUTHORITY HELD THAT A PROPOSAL THAT
 PERFORMANCE STANDARDS BE "FAIR AND EQUITABLE" SIMPLY ESTABLISHED A
 GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
 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 SUCH PERFORMANCE STANDARDS TO
 HIM.  BASED UPON AFGE, LOCAL 32, THE AUTHORITY SUBSEQUENTLY DETERMINED
 THAT A PROPOSAL REQUIRING THAT THE AGENCY DEVELOP REASONABLE
 PERFORMANCE
 STANDARDS WAS SIMILARLY WITHIN THE DUTY TO BARGAIN.  AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE
 COMMISSION, BOSTON REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA NO.  92(1980).
 
    THERE IS NO MATERIAL DIFFERENCE BETWEEN THE PROPOSAL HERE AND THOSE
 HELD TO BE WITHIN THE DUTY TO BARGAIN IN AFGE, LOCAL 32 AND AFGE, LOCAL
 3656, SUPRA.  THAT IS, THE PROPOSAL HERE WOULD LIKEWISE ESTABLISH A
 GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
 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 SUCH PERFORMANCE STANDARDS TO
 HIM.  SUCH REVIEW BY AN ARBITRATOR WOULD NOT RESULT IN THE SUBSTITUTION
 OF THE ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY;  IT WOULD SIMPLY
 DETERMINE WHETHER THE PERFORMANCE STANDARD ESTABLISHED BY MANAGEMENT
 WAS
 APPLIED TO THE GRIEVANT CONSISTENT WITH THE REQUIREMENTS OF THE
 PROPOSAL.  ACCORDINGLY, BASED UPON THE PRECEDENT CITED ABOVE AND FOR THE
 REASONS MORE FULLY STATED THEREIN, THE FIRST SENTENCE OF THE PROPOSAL IS
 WITHIN THE DUTY TO BARGAIN.
 
    THE SECOND SENTENCE OF THE PROPOSAL PROVIDES THAT PERFORMANCE
 STANDARDS WILL MAKE ALLOWANCES FOR FACTORS BEYOND THE CONTROL OF THE
 EMPLOYEE.  AS ALREADY NOTED, IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C., SUPRA, THE AUTHORITY HELD THAT A UNION COULD NEGOTIATE
 CRITERIA FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT
 HAS ESTABLISHED.  LIKEWISE, IN THE PRESENT CASE, THE SECOND SENTENCE OF
 THE PROPOSAL MERELY CONSTITUTES A MORE SPECIFIC STATEMENT OF THE "FAIR
 AND EQUITABLE" CRITERION, AND DOES NOT IMPOSE ON THE AGENCY A PARTICULAR
 REQUIREMENT AS TO THE QUANTITY, QUALITY, OR TIMELINESS OF WORK
 PRODUCTION.  THAT IS, THIS PORTION OF THE PROPOSAL WOULD APPLY ONLY IN
 THE CONTEXT OF THE APPLICATION TO AN EMPLOYEE OF PERFORMANCE STANDARDS
 ESTABLISHED BY MANAGEMENT.  ACCORDINGLY, THE SECOND SENTENCE IS WITHIN
 THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE.  /12/
 
    REGARDING THE THIRD SENTENCE OF THE PROPOSAL, THE AGENCY REITERATED
 ITS ARGUMENT CONCERNING UNION PROPOSAL 1:  THAT IT WOULD PREVENT THE
 TAKING OF DISCIPLINARY ACTION AGAINST AN EMPLOYEE EXCEPT IN CONNECTION
 WITH AN ANNUAL PERFORMANCE APPRAISAL.  ON ITS FACE, HOWEVER, THAT
 SENTENCE PRESCRIBES WHEN COPIES OF PERFORMANCE STANDARDS WILL BE GIVEN
 TO EMPLOYEES AND THAT THEY WILL BE IN WRITING.  NOTHING IN THE SENTENCE
 SPEAKS TO THE ISSUE OF WHEN THE AGENCY MAY ACTUALLY DISCIPLINE AN
 EMPLOYEE FOR UNACCEPTABLE PERFORMANCE.  THUS, THE AGENCY HAS
 MISCONSTRUED THE PROPOSAL WHICH DOES NOT IN ANY WAY PROHIBIT THE
 IMPOSITION OF DISCIPLINE, AND THE AGENCY'S ARGUMENTS THAT THE SENTENCE
 IS INCONSISTENT WITH CHAPTER 75 OF TITLE 5, U.S. CODE OR INTERFERES WITH
 THE RIGHTS OF MANAGEMENT UNDER SECTION 7106(A)(2)(A) OR (B)(1) OF THE
 STATUTE CANNOT BE SUSTAINED.
 
                             UNION PROPOSAL 3
 
    ARTICLE VI, SECTION 3.  EMPLOYEE'S ANNUAL PERFORMANCE RATING WILL BE
 THE RESULT OF THE
 
    APPLICATION OF STANDARDS OF PERFORMANCE TO THE APPROPRIATE CRITICAL
 ELEMENTS OF A POSITION
 
    ESTABLISHED IN ACCORDANCE WITH SECTION 1 AND 2 ABOVE.  ALL
 PERFORMANCE APPRAISALS SHALL BE IN
 
    WRITING, GIVEN TO THE EMPLOYEE AND STATE IN DETAIL THE BASIS FOR THE
 RATING.  THE EMPLOYEE
 
    SHALL BE GIVEN ADEQUATE OPPORTUNITY TO IMPROVE PERFORMANCE, NOT
 LIMITED TO THE STATUTORY
 
    NOTICE PERIOD, AND MANAGEMENT WILL MAKE A SINCERE EFFORT TO ASSIST
 THE EMPLOYEE IN IMPROVING
 
    PERFORMANCE TO THE LEVEL REQUIRED.  WHEN EMPLOYEES ARE ALLEGED TO BE
 PERFORMING AT AN
 
    UNACCEPTABLE LEVEL, THE EMPLOYEES WILL BE NOTIFIED IN WRITING OF
 THEIR UNACCEPTABLE
 
    PERFORMANCE, WHAT ACTION MUST BE TAKEN BY THEM TO IMPROVE THEIR
 PERFORMANCE TO AN ACCEPTABLE
 
    LEVEL, AND WHAT ASSISTANCE WILL BE PROVIDED BY THE EMPLOYER TO HELP
 THE EMPLOYEE TO IMPROVE
 
    HER OR HIS PERFORMANCE.  THE EMPLOYEES WILL BE GIVEN 90 DAYS IN WHICH
 TO BRING THEIR
 
    PERFORMANCE UP TO AN ACCEPTABLE LEVEL.  AT THE END OF THE 90 DAY
 PERIOD, EMPLOYEES WILL BE
 
    RE-EVALUATED AND INFORMED IN WRITING OF THEIR PERFORMANCE.  IF THE
 PERFORMANCE HAS NOT
 
    IMPROVED AND CORRECTIVE ACTION IS NECESSARY, THE EMPLOYER WILL GIVE
 THE EMPLOYEES A WRITTEN
 
    NOTICE OF THE PROPOSED ACTION SETTING FORTH IN DETAIL THE BASIS FOR
 THE ACTION.  SUCH NOTICES
 
    WILL BE GIVEN TO THE EMPLOYEES AND THE UNION 30 DAYS IN ADVANCE OF
 THE PROPOSED
 
    ACTION.  EMPLOYEES WILL HAVE 15 WORKDAYS IN WHICH TO RESPOND TO THE
 PROPOSED ACTION.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(2)(A) AND (B)(1) OF THE STATUTE AND/OR CHAPTER 75 OF
 TITLE 5, U.S. CODE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL 3 IS NOT INCONSISTENT WITH
 SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE OR CHAPTER 75 OF TITLE 5,
 U.S. CODE EXCEPT TO THE EXTENT THAT IT INCORPORATES PORTIONS OF UNION
 PROPOSAL 1 PREVIOUSLY DETERMINED TO BE OUTSIDE THE DUTY TO BARGAIN.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING THE PROPOSAL TO THAT EXTENT.  /13/ IT IS FURTHER ORDERED THAT
 THE PETITION FOR REVIEW OF UNION PROPOSAL 3, TO THE EXTENT IT
 INCORPORATES PORTIONS OF UNION PROPOSAL 1 WHICH ARE NOT WITHIN THE DUTY
 TO BARGAIN, BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE AGENCY'S CLAIM THAT THIS PROPOSAL IS NOT WITHIN THE
 DUTY TO BARGAIN IS A REITERATION OF ITS ARGUMENT CONCERNING UNION
 PROPOSAL 1 TO THE EFFECT THAT THE PROPOSAL WOULD PREVENT TAKING
 DISCIPLINARY ACTION AGAINST AN EMPLOYEE EXCEPT IN CONNECTION WITH AN
 ANNUAL PERFORMANCE APPRAISAL.  IN THIS REGARD, THE AGENCY HAS
 MISINTERPRETED THE PROPOSAL.  ON ITS FACE, THE FIRST SENTENCE OF THE
 PROPOSAL MERELY CONCERNS THE DURATION OF THE PERFORMANCE APPRAISAL
 CYCLE.  IN THAT RESPECT, THE PROPOSAL WOULD REQUIRE THAT THE ANNUAL
 PERFORMANCE APPRAISAL RESULT FROM THE APPLICATION OF PERFORMANCE
 STANDARDS TO EACH ELEMENT OF AN EMPLOYEE'S JOB, INCLUDING CRITICAL
 ELEMENTS.  NOTHING IN THAT LANGUAGE OR ANY PART OF THIS PROPOSAL SPEAKS
 TO THE ISSUE OF WHEN THE AGENCY MAY DISCIPLINE AN EMPLOYEE FOR
 UNACCEPTABLE PERFORMANCE.  ACCORDINGLY, THE PROPOSAL WOULD NOT PREVENT
 THE TAKING OF DISCIPLINARY ACTION BUT IS CONCERNED WITH PROCEDURAL
 MATTERS WHICH ARE WITHIN THE DUTY TO BARGAIN UNDER SECTION 1706(B)(2) OF
 THE STATUTE.  FINALLY, THE FIRST SENTENCE OF UNION PROPOSAL 3 PROVIDES
 THAT CRITICAL ELEMENTS AND PERFORMANCE STANDARDS SHALL BE ESTABLISHED IN
 ACCORDANCE WITH SECTION 1, I.E., HEREIN UNION PROPOSAL 1, SUPRA.  TO THE
 EXTENT THAT UNION PROPOSAL 1 HAS BEEN DETERMINED TO BE OUTSIDE THE DUTY
 TO BARGAIN UNDER SECTION 7106 OF THE STATUTE, UNION PROPOSAL 3 IS
 LIKEWISE OUTSIDE THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.  THUS,
 THE AGENCY'S ARGUMENTS THAT THE PROPOSAL IS INCONSISTENT WITH CHAPTER 75
 OF TITLE 5, U.S. CODE OR INTERFERES WITH THE RIGHTS OF MANAGEMENT UNDER
 SECTION 7106(A)(2)(A) OR (B)(1) OF THE STATUTE CANNOT BE SUSTAINED,
 EXCEPT TO THE EXTENT THAT IT INCORPORATES THE PORTIONS OF UNION PROPOSAL
 1 WHICH HAVE BEEN HELD TO BE OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 4
 
    ARTICLE VI, SECTION 4.  THERE SHALL BE NO SECRET STUDIES BEARING ON
 PERFORMANCE
 
    APPRAISALS.  ALL STUDIES CONDUCTED BY THE EMPLOYER WILL BE CONDUCTED
 ON TYPICAL WORKERS UNDER
 
    NORMAL WORKING CONDITIONS.
 
    THE UNION SHALL PARTICIPATE ON AN EQUAL BASIS IN THE DEVELOPMENT OR
 REVISION OF ALL
 
    MEASURES OF PERFORMANCE AND STUDIES INCLUDING BUT NOT LIMITED TO
 SELECTION OF TYPICAL WORKERS
 
    AND CONDITIONS.  IF AGREEMENT CANNOT BE REACHED, FORMAL NEGOTIATIONS
 WILL BE CONVENED.  ANY
 
    IMPASSES WILL BE REFERRED TO THE FEDERAL SERVICE IMPASSES PANEL FOR
 RESOLUTION.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS
 INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE, AS
 ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE FIRST PARAGRAPH OF THE UNION'S PROPOSAL
 CONCERNS PROCEDURES MANAGEMENT WILL OBSERVE IN DEVELOPING PERFORMANCE
 STANDARDS, WHICH ARE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2)
 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
 PARTIES) BARGAIN CONCERNING THE FIRST PARAGRAPH (I.E" THE FIRST TWO
 SENTENCES) OF THE PROPOSAL.  /14/ THE SECOND PARAGRAPH OF THE UNION'S
 PROPOSAL IS INCONSISTENT WITH SECTION 1706(A)(2)(A) AND (B) OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 PETITION FOR REVIEW OF THE SECOND PARAGRAPH (I.E., THE LAST THREE
 SENTENCES) OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE AGENCY CLAIMS THAT THE PROPOSAL WOULD INTERFER WITH THE
 AGENCY'S RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE, TO THE EXTENT IT WOULD REQUIRE
 NEGOTIATIONS ON THE ESTABLISHMENT AND CONTENT OF PERFORMANCE STANDARDS.
 
    THE FIRST PARAGRAPH OF THE PROPOSAL, HOWEVER, MERELY WOULD REQUIRE
 THAT "STUDIES" RELATED TO PERFORMANCE APPRAISAL BE CONDUCTED ON TYPICAL
 WORKERS UNDER NORMAL WORKING CONDITIONS AND THAT THEY NOT BE SECRET.
 NOTHING IN THAT PARAGRAPH WOULD PREVENT THE AGENCY FROM IDENTIFYING A
 PARTICULAR CRITICAL ELEMENT OR ESTABLISHING A PARTICULAR PERFORMANCE
 STANDARD PURSUANT TO ITS RESERVED RIGHTS.  RATHER, THE PROPOSAL MERELY
 CONCERNS MATTERS OF A PROCEDURAL NATURE RELATING TO THE DEVELOPMENT OF A
 PERFORMANCE APPRAISAL SYSTEM.  THE AUTHORITY STATED IN ITS DECISION IN
 NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
 OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980) (AT PAGE 12 OF THE DECISION)
 THAT "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 .  . . ARE SUBJECT TO BARGAINING." THUS, THE FIRST PARAGRAPH
 OF THIS PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
 
    TURNING TO THE SECOND PARAGRAPH OF THE PROPOSAL, IT IS IDENTICAL TO A
 PROPOSAL WHICH THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN IN
 SAINT LAWRENCE SEAWAY, 5 FLRA NO. 14(1981) (AT PAGES 7-8 OF THE
 DECISION).  IN THAT DECISION, WE HELD THAT SINCE THIS SORT OF PROPOSAL
 WOULD REQUIRE BARGAINING TO IMPASSE WITH THE UNION AS AN EQUAL PARTNER
 CONCERNING THE PARTICULAR PERFORMANCE STANDARDS TO BE ESTABLISHED FOR
 EMPLOYEES IN THE BARGAINING UNIT, IT WAS INCONSISTENT WITH MANAGEMENT'S
 RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE.  ACCORDINGLY, THE SECOND PARAGRAPH
 OF THE PROPOSAL HERE IN DISPUTE IS OUTSIDE THE DUTY TO BARGAIN.
 
                          UNION PROPOSALS 5 AND 6
 
    ARTICLE VI, SECTION 5.  ALL INFORMATION INCLUDING ANY OBJECTIONS TO
 DATA DERIVED FROM WORK
 
    STUDIES WILL BE PROVIDED TO THE UNION WITHIN FIVE DAYS OF ISSUANCE.
 
    ARTICLE VI, SECTION 8.  A JOINT LABOR-MANAGEMENT COMMITTEE ON WHICH
 THE UNION HAS EQUAL
 
    REPRESENTATION, SHALL BE FORMED TO REVIEW, EVALUATE AND MAKE
 RECOMMENDATIONS FOR CHANGES IN
 
    THE DEVELOPMENT AND OPERATION OF THE PERFORMANCE APPRAISAL SYSTEM, ON
 AN ONGOING AND PERIODIC
 
    BASIS.  IMPASSES WILL BE RESOLVED BY THE SAME PROCEDURES AS UTILIZED
 FOR MID-TERM BARGAINING.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSALS ARE WITHIN
 THE DUTY TO BARGAIN OR, AS ALLEGED BY THE AGENCY, ARE INCONSISTENT WITH
 SECTION 7106 OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSALS ARE NOT INCONSISTENT
 WITH SECTION 7106 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
 IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
 TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSALS 5 AND 6.  /15/
 
    REASONS:  THE AGENCY ASSERTS THAT UNION PROPOSALS 5 AND 6 ARE OUTSIDE
 THE DUTY TO BARGAIN SINCE THEY ARE "INEXTRICABLY LINKED TO OR FLOW FROM
 (PROPOSALS 1 THROUGH 4) WHICH ARE ON THEIR FACE NONNEGOTIABLE." THIS
 CONTENTION CANNOT BE SUSTAINED.
 
    AS PREVIOUSLY STATED IN CONNECTION WITH PROPOSALS 1 THROUGH 4, 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, IS WITHIN THE DUTY TO BARGAIN.  BUREAU OF THE PUBLIC DEBT,
 SUPRA AT 12.  UNION PROPOSAL 5 CONCERNS PROVIDING THE UNION WITH DATA
 DERIVED FROM WORK STUDIES, AND NOTHING IN THE RECORD INDICATES THAT THE
 "OBJECTIONS" REFERRED TO WOULD INCLUDE WHOLLY INTRA-MANAGEMENT MATTERS
 WHICH ARE ESSENTIAL ELEMENTS IN MANAGEMENT'S DECISION REGARDING THE
 EXERCISE OF ITS MANAGEMENT RIGHTS.  UNION PROPOSAL 5, THEREFORE, IS A
 NEGOTIABLE PROCEDURE.
 
    UNION PROPOSAL 6 WOULD CREATE A JOINT LABOR-MANAGEMENT COMMITTEE WITH
 THE LIMITED POWER TO RECOMMEND CHANGES IN THE PERFORMANCE APPRAISAL
 SYSTEM.  IN THIS CONTEXT, THE LAST SENTENCE OF THE PROPOSAL INCORPORATES
 BY GENERAL REFERENCE PROCEDURES TO RESOLVE INTRA-COMMITTEE IMPASSES
 WHICH MIGHT ARISE PRIOR TO THE COMMITTEE'S MAKING A RECOMMENDATION TO
 THE AGENCY.  THE SPECIFIC PROVISIONS OF THESE INCORPORATED PROCEDURES
 ARE NOT IN THE RECORD BUT ARE, FOR PURPOSES OF THIS DECISION, ASSUMED TO
 BE CONSISTENT WITH THE STATUTE AND THEREFORE DISTINGUISHABLE FROM THE
 REQUIREMENTS FOR FORMAL NEGOTIATIONS AND IMPASSE RESOLUTION SET FORTH IN
 THE SECOND PARAGRAPH OF UNION PROPOSAL 4.  BY ITS TERMS, THIS PROPOSAL
 DOES NOT CONCERN OR INTERFERE WITH THE AGENCY'S RIGHTS UNDER SECTION
 1706.  ON THE CONTRARY, THE AGENCY WOULD RETAIN ITS DISCRETION TO ACCEPT
 OR REJECT ANY OF THE COMMITTEE'S RECOMMENDATIONS.  SEE NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND DEPARTMENT OF THE AIR
 FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD AIR
 FORCE BASE, FLORIDA, 6 FLRA NO. 105 (1981), AT 7.
 
    ACCORDINGLY, BASED UPON THE FOREGOING, UNION PROPOSAL 6 CONCERNS A
 PROCEDURE WHICH THE PARTIES WILL OBSERVE IN CONNECTION WITH THE
 DEVELOPMENT AND OPERATION OF THE AGENCY'S PERFORMANCE APPRAISAL SYSTEM.
 AS SUCH, UNION PROPOSAL 6 IS WITHIN THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 7
 
    ARTICLE VI, SECTION 6.  ANY DISPUTES UNDER THIS ARTICLE MAY BE
 RESOLVED UNDER THE
 
    NEGOTIATED GRIEVANCE PROCEDURE INCLUDING BUT NOT LIMITED TO:
 
    1.  CHALLENGES TO THE CRITICAL ELEMENTS OF A POSITION.
 
    2.  THE MEASURE OF PERFORMANCE AS SET FORTH IN PERFORMANCE STANDARDS.
 
    3.  THE PERFORMANCE APPRAISAL ITSELF.
 
    4.  ANY DISPUTED ACTION TAKEN AS A RESULT OF A PERFORMANCE APPRAISAL
 WILL BE TREATED AS ANY
 
    OTHER DISCIPLINARY MATTER.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL 7 IS, AS ALLEGED BY THE
 AGENCY, CONTRARY TO THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  SUBSECTIONS 1 AND 2 OF THE UNION'S PROPOSAL
 ARE INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE AND,
 THEREFORE, ARE NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW AS TO
 SUBSECTIONS 1 AND 2 OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
 HOWEVER, SUBSECTIONS 3 AND 4 ARE NOT INCONSISTENT WITH LAW.  RATHER,
 THEY RELATE TO APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED
 BY THE EXERCISE OF MANAGEMENT'S RIGHTS WITHIN THE MEANING OF SECTION
 7106(B)(3) OF THE STATUTE.  THEREFORE, THEY ARE WITHIN THE DUTY TO
 BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING SUBSECTIONS 3 AND 4.  /16/
 
    REASONS:  UNION PROPOSAL 7 IS THE IDENTICAL PROPOSAL CONSIDERED BY
 THE AUTHORITY IN SAINT LAWRENCE SEAWAY, SUPRA.  IN THAT CASE,
 SUBSECTIONS 1, 2 AND 4 WERE BEFORE THE AUTHORITY FOR DECISION.  THE
 AUTHORITY DETERMINED WITH RESPECT TO SUBSECTIONS 1 AND 2 THAT, BY IN
 EFFECT PROVIDING FOR ARBITRAL REVIEW OF THE AGENCY'S IDENTIFICATION OF
 CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE STANDARDS, THEY WERE
 INCONSISTENT WITH MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND ASSIGN
 WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE, AND, THEREFORE,
 WERE OUTSIDE THE DUTY TO BARGAIN.  SUBSECTION 4 OF THE PROPOSAL,
 HOWEVER, WAS HELD TO BE WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7106(B)(3) OF THE STATUTE SINCE IT RELATES TO THE APPLICATION OF
 PERFORMANCE STANDARDS TO EMPLOYEES.  THUS, FOR THE REASONS FULLY SET
 FORTH IN SAINT LAWRENCE SEAWAY, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 7
 HEREIN ARE OUTSIDE, AND SUBSECTION 4 IS WITHIN, THE DUTY TO BARGAIN.
 
    SUBSECTION 3 OF UNION PROPOSAL 7 WOULD ALLOW GRIEVANCES UNDER THE
 NEGOTIATED GRIEVANCE PROCEDURE REGARDING A "PERFORMANCE APPRAISAL
 ITSELF." THE AUTHORITY CONSISTENTLY HAS HELD THAT 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, WITHOUT CONFLICTING WITH MANAGEMENT'S RIGHT
 TO IDENTIFY AND ESTABLISH SUCH ELEMENTS AND STANDARDS.  SEE, E.G., AFGE,
 LOCAL 32, 3 FLRA NO. 120 (1980);  SAINT LAWRENCE SEAWAY, 5 FLRA NO.
 14(1981).  IN THIS CONNECTION, A PERFORMANCE APPRAISAL CONSTITUTES THE
 APPLICATION OF THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
 ESTABLISHED BY MANAGEMENT TO THE EMPLOYEE.  THE CHARACTERIZATION OF THE
 EMPLOYEE'S PERFORMANCE, PURSUANT TO THE APPRAISAL, CONSTITUTES THE
 REQUISITE EFFECT.  THUS, A GRIEVANCE BROUGHT UNDER SUBSECTION 3 OF THE
 PROPOSAL WOULD ONLY RELATE TO THE APPLICATION OF MANAGEMENT'S CRITICAL
 ELEMENTS AND PERFORMANCE STANDARDS TO THE EMPLOYEE (I.E., THE
 PERFORMANCE APPRAISAL) BUT NOT TO THE ESTABLISHMENT OF THE UNDERLYING
 ELEMENTS AND STANDARDS.  THAT IS, REVIEW BY AN ARBITRATOR WOULD NOT
 PRECLUDE THE AGENCY FROM INITIALLY IDENTIFYING ELEMENTS OR DETERMINING
 THE CONTENT OF STANDARDS, NOR WOULD IT RESULT IN THE SUBSTITUTION OF THE
 ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY AND THE SETTING OF NEW
 ELEMENTS OR STANDARDS TO THE EMPLOYEE THROUGH A PERFORMANCE APPRAISAL
 COMPLIED WITH THE APPLICABLE REQUIREMENTS OF LAW, REGULATION OR THE
 PARTIES' AGREEMENT.  /17/ ACCORDINGLY, SUBSECTION 3 OF UNION PROPOSAL 7
 IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE.
 
                             UNION PROPOSAL 8
 
    ARTICLE VI, SECTION 9.  ALL UNION PARTICIPATION UNDER THIS ARTICLE
 SHALL BE IN A DUTY
 
    STATUS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS, AS ALLEGED
 BY THE AGENCY, INCONSISTENT WITH THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS NOT INCONSISTENT WITH
 THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
 PARTIES) BARGAIN CONCERNING UNION PROPOSAL 8.  /18/
 
    REASONS:  THE PROPOSAL, IN EFFECT, WOULD AUTHORIZE OFFICIAL TIME TO
 UNION REPRESENTATIVES PARTICIPATING IN ACTIVITIES WITH MANAGEMENT
 OFFICIALS CONCERNING THE PERFORMANCE APPRAISAL SYSTEM.  SECTION 7131(D)
 OF THE STATUTE PROVIDES THAT, WITH CERTAIN EXCEPTIONS NOT APPLICABLE
 HERE, ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE SHALL BE
 GRANTED OFFICIAL TIME IN ANY AMOUNT THE AGENCY AND UNION AGREE TO BE
 REASONABLE, NECESSARY, AND IN THE PUBLIC INTEREST.  THE PROVISION
 REGARDING OFFICIAL TIME IN THE VERSION OF THE BILL REPORTED OUT OF THE
 SENATE-HOUSE CONFERENCE COMMITTEE, WHICH WAS ENACTED AND SIGNED INTO LAW
 AS SECTION 7131 OF THE STATUTE, WAS IDENTICAL TO THAT IN THE BILL (H.R.
 11280) REPORTED OUT OF THE HOUSE COMMITTEE.  /19/ THE COMMITTEE REPORT
 /20/ WHICH ACCOMPANIED THE HOUSE COMMITTEE BILL STATED:
 
    SECTION (7131(D)) MAKES ALL OTHER MATTERS CONCERNING OFFICIAL TIME
 FOR UNIT EMPLOYEES
 
    ENGAGED IN LABOR-MANAGEMENT RELATIONS ACTIVITY SUBJECT TO NEGOTIATION
 BETWEEN THE AGENCY AND
 
    THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION INVOLVED.
 
    THEREFORE, CONSISTENT WITH THE EXPLICIT LANGUAGE OF SECTION 7131(D)
 OF THE STATUTE AND ITS RELEVANT LEGISLATIVE HISTORY, SINCE THE PROPOSAL
 AT ISSUE HERE CONCERNS OFFICIAL TIME FOR NEGOTIABLE LABOR-MANAGEMENT
 RELATIONS ACTIVITY, IT IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7131(D) OF THE STATUTE.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2823 AND VETERANS ADMINISTRATION, REGIONAL OFFICE,
 CLEVELAND, OHIO, 2 FLRA 3(1979).
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 19, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ON APRIL 30, 1981, THE AUTHORITY ISSUED A DECISION AND ORDER ON
 MOTION TO DISMISS, 5 FLRA NO. 71, WHICH GRANTED THE AGENCY'S MOTION TO
 DISMISS 27 UNION PROPOSALS IN THIS CASE BUT WHICH DENIED THE MOTION AS
 TO THE EIGHT UNION PROPOSALS CONSIDERED HEREIN.
 
    /2/ 12 U.S.C. 1811 PROVIDES AS FOLLOWS:
 
    SEC. 1811.  CREATION OF CORPORATION;  DUTIES
 
    THERE IS CREATED A FEDERAL DEPOSIT INSURANCE CORPORATION (HEREINAFTER
 REFERRED TO AS THE
 
    "CORPORATION") WHICH SHALL INSURE, AS HEREINAFTER PROVIDED, THE
 DEPOSITS OF ALL BANKS WHICH
 
    ARE ENTITLED TO THE BENEFITS OF INSURANCE UNDER THIS CHAPTER, AND
 WHICH SHALL HAVE THE POWERS
 
    HEREINAFTER GRANTED.
 
    31 U.S.C. 856 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 856.  DEFINITION OF "MIXED-OWNERSHIP GOVERNMENT CORPORATIONS"
 
    AS USED IN THIS CHAPTER THE TERM "MIXED-OWNERSHIP GOVERNMENT
 CORPORATIONS" MEANS . . . (5)
 
    FEDERAL DEPOSIT INSURANCE CORPORATION(.)
 
    /3/ SECTION 7117(A)(2) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (A)(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY
 
    AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
 SUBSECTION ONLY IF THE
 
    AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
 COMPELLING NEED (AS
 
    DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
 THE RULE OR REGULATION.
 
    /4/ 5 U.S.C. 2301(B)(6) PROVIDES AS FOLLOWS:
 
    SEC. 2301.  MERIT SYSTEM PRINCIPLES
 
   .          .          .          .
 
 
    (B) FEDERAL PERSONNEL MANAGEMENT SHOULD BE IMPLEMENTED CONSISTENT
 WITH THE FOLLOWING MERIT
 
    SYSTEM PRINCIPLES:
 
   .          .          .          .
 
 
    (6) EMPLOYEES SHOULD BE RETAINED ON THE BASIS OF THE ADEQUACY OF
 THEIR PERFORMANCE,
 
    INADEQUATE PERFORMANCE SHOULD BE CORRECTED, AND EMPLOYEES SHOULD BE
 SEPARATED WHO CANNOT OR
 
    WILL NOT IMPROVE THEIR PERFORMANCE TO MEET REQUIRED STANDARDS.
 
    /5/ SEE H.R. REP. NO. 95-1403, 95TH CONG.,2D SESS. 51(1978).
 
    /6/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2875
 AND DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
 ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, SOUTHEAST FISHERIES
 CENTER, MIAMI LABORATORY, FLORIDA, 5 FLRA NO. 55(1981), AT PAGE 7.
 
    /7/ IN DECIDING THAT A PROPOSAL OR ANY PART THEREOF IS WITHIN THE
 DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE
 MERITS THEREOF.
 
    /8/ SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE PROVIDES 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(.)
 
    /9/ CHAPTER 75 OF TITLE 5, UNITED STATES CODE GENERALLY PROVIDES FOR
 ADVERSE ACTIONS AGAINST EMPLOYEES.  THE AGENCY DID NOT, HOWEVER, ADVERT
 TO A SPECIFIC SECTION WITHIN THAT CHAPTER.
 
    /10/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
 
    /11/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /12/ SECTION 7106(B)(3) OF THE STATUTE PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /13/ IN DECIDING THAT THE PROPOSAL IS, IN PART, WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS
 THEREOF.
 
    /14/ IN DECIDING THAT THE FIRST PARAGRAPH OF THE PROPOSAL IS WITHIN
 THE DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO
 THE MERITS THEREOF.
 
    /15/ IN DECIDING THAT UNION PROPOSAL 5 AND 6 ARE WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THEIR MERITS.
 
    /16/ IN DECIDING THAT SUBSECTIONS 3 AND 4 ARE WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS
 THEREOF.
 
    /17/ SEE STATEMENT OF REPRESENTATIVE UDALL AT 124 CONG. REC. H 9634
 (DAILY ED. SEPT. 13, 1978):
 
    THE NEW LANGUAGE PRESERVES MANAGEMENT'S RIGHT TO MAKE THE FINAL
 DECISIONS IN THESE
 
    ADDITIONAL AREAS, IN ACCORDANCE WITH APPLICABLE LAWS, INCLUDING OTHER
 PROVISIONS OF CHAPTER 71
 
    OF TITLE 5.  FOR EXAMPLE, MANAGEMENT HAS THE RESERVED RIGHT TO MAKE
 THE FINAL DECISION TO
 
    "REMOVE" AN EMPLOYEE, BUT THAT DECISION MUST BE MADE IN ACCORDANCE
 WITH APPLICABLE LAWS AND
 
    PROCEDURES, AND THE PROVISIONS OF ANY APPLICABLE COLLECTIVE
 BARGAINING AGREEMENT.  THE
 
    RESERVED MANAGEMENT RIGHT TO "REMOVE" WOULD IN NO WAY AFFECT THE
 EMPLOYEE'S RIGHT TO APPEAL
 
    THE DECISION THROUGH STATUTORY PROCEDURES OR, IF APPLICABLE, THROUGH
 THE PROCEDURES SET FORTH
 
    IN A COLLECTIVE BARGAINING AGREEMENT.
 
    /18/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /19/ H.R. 11280, 95TH