National Treasury Employees Union (Union) and Department of Health and Human Services, Region 10 (Agency)



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07:0727(115)NG
The decision of the Authority follows:


 7 FLRA No. 115
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, REGION 10
 Agency
 
                                            Case No. O-NG-299
 
                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)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND PRESENTS ISSUES CONCERNING THE NEGOTIABILITY OF FOUR PROPOSALS
 INVOLVING "UNACCEPTABLE PERFORMANCE PROCEDURES" (SET FORTH IN THE
 APPENDIX) AND ONE PROPOSAL WITH RESPECT TO "EQUAL EMPLOYMENT
 OPPORTUNITY." UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
 THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
    BASED UPON THE RECORD, PROPOSAL 1 WOULD OBLIGATE MANAGEMENT TO
 NEGOTIATE CRITICAL ELEMENTS;  PROPOSAL 2 WOULD SET STANDARDS FOR
 CRITICAL ELEMENTS;  PROPOSAL 3 WOULD, AS A CONDITION PRECEDENT TO
 IMPLEMENTING CRITICAL ELEMENTS, REQUIRE MANAGEMENT TO ESTABLISH THAT ALL
 CRITICAL ELEMENTS ARE IN FACT CRITICAL TO THE EMPLOYEE'S JOB;  AND
 PROPOSAL 4 WOULD GIVE THE UNION THE RIGHT TO REOPEN NEGOTIATIONS ON
 CRITICAL ELEMENTS ONE YEAR AFTER INITIAL IMPLEMENTATION.
 
    IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), APPEAL DOCKETED, NO.
 80-1895 (D.C. CIR. AUG. 4, 1980), 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, /1/ AND THEREFORE WAS NOT WITHIN THE DUTY TO BARGAIN.  SINCE
 ALL FOUR PROPOSALS IN THIS CASE WOULD LIKEWISE INTERFERE WITH THOSE
 MANAGEMENT RIGHTS, THEY BEAR 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, PROPOSALS 1 THROUGH 4 MUST ALSO BE HELD NOT TO BE WITHIN
 THE DUTY TO BARGAIN.  SEE ALSO AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C., 3 FLRA NO. 120(1980), AT PAGES 4-5.
 
                             UNION PROPOSAL 5
 
    ARTICLE 38-- "EQUAL EMPLOYMENT OPPORTUNITY"
 
    B.  VACANCY ANNOUNCEMENTS FOR UPWARD MOBILITY POSITIONS WILL BE
 CIRCULATED WITHIN THE HEW
 
    REGION X REGIONAL OFFICE, WITH NO APPLICATIONS ACCEPTED FROM OUTSIDE
 THAT AREA OF
 
    CONSIDERATION.
 
    THIS PROPOSAL ON ITS FACE EXPRESSLY PROVIDES THAT MANAGEMENT COULD
 NOT ACCEPT ANY APPLICATIONS WITH RESPECT TO VACANT POSITIONS FROM ANY
 PERSON OUTSIDE THE AGENCY.  ACCORDINGLY, WHILE THE UNION ASSERTS THAT
 MANAGEMENT MERELY WOULD BE REQUIRED "TO INITIALLY CONSIDER ONLY THOSE
 EMPLOYEES WITHIN REGION S" BUT WOULD NOT BE HAMPERED IN ITS ABILITY TO
 MAKE A SELECTION IN FILLING ANY POSITION IT HAS DECIDED TO FILL, THE
 PROPOSAL CLEARLY WOULD PREVENT MANAGEMENT FROM CONSIDERING AND
 THEREFORE
 SELECTING FROM ANY APPROPRIATE SOURCE IN FILLING UPWARD MOBILITY
 POSITIONS.  THUS, THE DISPUTED PROPOSAL CONFLICTS WITH SECTION
 7106(A)(2)(C) OF THE STATUTE /2/ AND, HENCE, IS NOT WITHIN THE DUTY TO
 BARGAIN.  SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND
 NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA
 NO. 60(1980) /3/
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW BY, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 22, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                            UNION PROPOSALS 1-4
 
    ARTICLE 19-- "UNACCEPTABLE PERFORMANCE PROCEDURES"
 
    PROPOSAL 1
 
    THE EMPLOYER AGREES TO FULLY NEGOTIATE ALL CRITICAL ELEMENTS WITH THE
 UNION PRIOR TO IMPLEMENTATION.  AT THAT TIME THE CRITICALNESS OF EACH
 ASPECT OF A CRITICAL ELEMENT WILL BE EXPLAINED TO THE UNION AND
 DOCUMENTED WITH EVIDENCE, SUPPLIED AT NO COST TO THE UNION.
 
    PROPOSAL 2
 
    THE EMPLOYER AND THE UNION AGREE THAT THE FOLLOWING STANDARDS AND
 PROCEDURES SHALL BE USED IN DRAWING UP CRITICAL ELEMENTS.
 
    (A) CRITICAL ELEMENTS SHALL RELATE ONLY TO TASKS INVOLVING AT LEAST A
 MAJORITY OF AN EMPLOYEE'S WORK TIME.
 
    (B) CRITICAL ELEMENTS SHALL ONLY BE ELEMENTS WHICH ARE IN FACT
 CRITICAL TO THE PERFORMANCE OF THE JOB.
 
    (C) CRITICAL ELEMENTS SHALL BE DEFINED IN TERMS OF MEASURABLE,
 OBSERVABLE BEHAVIOR SO THAT AN OBJECTIVE EVALUATION OF AN EMPLOYEE'S
 PERFORMANCE MAY BE MADE.  UNLESS THE DEFINITION OF A CRITICAL ELEMENT
 QUANTITATIVELY IMPOSES SPECIFIC REQUIREMENTS, THE EMPLOYEE RETAINS THE
 DISCRETION AS TO THE INTERPRETATION OF THE CRITICAL ELEMENTS.
 
    (D) CRITICAL ELEMENTS SHALL BE MUTUALLY EXCLUSIVE AND EXPLICITLY
 DEFINED.  CRITICAL ELEMENTS SHALL NOT BE DEFINED OR APPLIED IN A MANNER
 TO BE AT CROSS PURPOSES WITH EACH OTHER.
 
    (E) IF A CRITICAL ELEMENT HAS MORE THAN ONE ASPECT OR COMPONENT THEN
 THE EMPLOYEE WILL BE DEEMED AS FAILING TO MEET THE CRITICAL ELEMENT, IF
 AND ONLY IF THE EMPLOYEE IS DEFICIENT IN ALL ASPECTS OF THE CRITICAL
 ELEMENT.
 
    (F) THE LINE BETWEEN UNACCEPTABLE AND MINIMALLY ACCEPTABLE
 PERFORMANCE SHALL BE DEFINED PRECISELY AND DISTINGUISHED.
 
    (G) CRITICAL ELEMENTS, AFTER FULL NEGOTIATION AS REFERRED TO IN
 SECTION 4 ABOVE, WILL BE PUBLISHED IN THE POSITION DESCRIPTION OF EACH
 EMPLOYEE.  CRITICAL ELEMENTS WILL BE LISTED IN ORDER OF PRIORITY IN THE
 POSITION DESCRIPTION.  THIS INFORMATION SHALL BE SUPPLIED TO EACH
 EMPLOYEE IN HIS/HER CURRENT POSITION AND AT THE TIME OF TRANSFER OR
 PROMOTION TO A DIFFERENT POSITION.
 
    (H) EMPLOYEES SHALL RECEIVE COPIES OF THE CRITICAL ELEMENTS OF ALL
 SUPERVISORS IN THEIR CHAIN OF COMMAND.  THIS INFORMATION SHALL BE
 SUPPLIED TO EACH EMPLOYEE IN HIS/HER CURRENT POSITION AND AT THE TIME OF
 TRANSFER OR PROMOTION TO A DIFFERENT POSITION.  THE EMPLOYER AGREES TO
 SUPPLY THE UNION WITH COPIES, FREE OF CHARGE, OF THE CRITICAL ELEMENTS
 FOR EACH SUPERVISORY OR MANAGERIAL POSITION WITHIN THE AGENCY, ONCE A
 YEAR.
 
    PROPOSAL 3
 
    THE BURDEN WILL BE ON THE EMPLOYER TO ESTABLISH THAT ALL ELEMENTS ARE
 CRITICAL TO THE EMPLOYEE'S JOB AS OPPOSED TO MERELY BEING CRITICAL TO
 THAT POSITION IN GENERAL.  THE EMPLOYER WILL HAVE THE ADDITIONAL BURDEN
 OF PROVING THAT HE MADE KNOWN TO THE EMPLOYEE AT THE BEGINNING OF THE
 EVALUATION PERIOD THAT C