09:0716(86)NG - AFGE Local 2l92 and VA Region Office, St. Louis, MO -- 1982 FLRAdec NG



[ v09 p716 ]
09:0716(86)NG
The decision of the Authority follows:


 9 FLRA No. 86
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2192
 Union
 
 and
 
 VETERANS ADMINISTRATION REGIONAL
 OFFICE, ST. LOUIS, MISSOURI
 Agency
 
                                            Case No. O-NG-420
 
                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) (5
 U.S.C. 7101 ET SEQ.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF FIVE
 UNION PROPOSALS.  /1/ UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
 INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    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.  (ONLY THE UNDERSCORED
 PORTIONS OF THE PROPOSAL HAVE
 
    BEEN ALLEGED TO BE OUTSIDE THE DUTY TO BARGAIN.)
 
    THE AGENCY CONTENDS, AND THE AUTHORITY AGREES, THAT THE UNDERSCORED
 PORTIONS OF THE PROPOSAL ARE INCONSISTENT WITH AGENCY MANAGEMENT'S
 RIGHTS TO "DIRECT" EMPLOYEES AND "ASSIGN WORK" UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE BECAUSE THEY WOULD PRECLUDE THE
 AGENCY FROM IDENTIFYING AS A CRITICAL ELEMENT ANY JOB ELEMENT WHICH IS
 NOT GRADE-CONTROLLING.  IN THIS RESPECT, THE PROPOSAL IS IDENTICAL TO
 PROPOSALS IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
 ILLINOIS, 7 FLRA NO. 34 (1981), AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1968 AND DEPARTMENT OF TRANSPORTATION, SAINT
 LAWRENCE SEAWAY DEVELOPMENT CORPORATION, MASSENA, NEW YORK, 5 FLRA NO.
 14 (1981), REQUIRING THAT CRITICAL ELEMENTS OF A POSITION BE BASED ONLY
 ON THE GRADE-CONTROLLING FACTORS OF THE POSITION, WHICH THE AUTHORITY
 HELD TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND
 (B).  THEREFORE, FOR THE REASONS SET FORTH IN DETAIL IN FEDERAL DEPOSIT
 INSURANCE CORPORATION AND SAINT LAWRENCE SEAWAY DEVELOPMENT
 CORPORATION,
 THE UNDERSCORED PORTIONS OF THE DISPUTED PROPOSAL IN THIS CASE MUST BE
 HELD TO BE OUTSIDE THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO
 SECTION 2420.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10
 (1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE UNDERSCORED
 PORTIONS OF UNION PROPOSAL 1 BE, AND IT HEREBY IS, DISMISSED.
 
                             UNION PROPOSAL 2
 
    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 ALLOWANCE 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.  (ONLY THE UNDERSCORED PORTIONS OF THIS PROPOSAL HAVE
 BEEN ALLEGED TO BE
 
    OUTSIDE THE DUTY TO BARGAIN.)
 
    CONTRARY TO THE AGENCY'S CONTENTIONS, THE AUTHORITY FINDS THAT THE
 UNDERSCORED PORTIONS OF THE PROPOSAL WOULD NOT BE DETERMINATIVE OF THE
 CONTENT OF PERFORMANCE STANDARDS.  FURTHER, CONTRARY TO THE AGENCY'S
 POSITION, THE PROPOSAL WOULD NOT ESTABLISH CRITERIA FOR THE CONTENT OF
 PERFORMANCE STANDARDS WHICH ARE INCONSISTENT WITH THOSE PROVIDED IN 5
 U.S.C.  4302(B)(1).  /2/ RATHER, THE PROPOSAL WOULD PROVIDE A
 CONTRACTUAL STANDARD OF OBJECTIVITY AND JOB-RELATEDNESS BY WHICH AGENCY
 ACTION UNDER ITS PERFORMANCE STANDARDS MAY BE REVIEWED.  IN THIS REGARD,
 THE PROPOSAL IS IDENTICAL TO UNION PROPOSAL 2 IN FEDERAL DEPOSIT
 INSURANCE CORPORATION, SUPRA, WHICH THE AUTHORITY FOUND TO BE WITHIN THE
 DUTY TO BARGAIN BECAUSE THE PROPOSAL ESTABLISHED GENERAL,
 NONQUANTITATIVE REQUIREMENTS BY WHICH THE APPLICATION OF PERFORMANCE
 STANDARDS ESTABLISHED BY MANAGEMENT COULD SUBSEQUENTLY BE EVALUATED IN A
 GRIEVANCE BY AN EMPLOYEE WHO BELIEVED THAT HE OR SHE HAD BEEN ADVERSELY
 AFFECTED BY THE APPLICATION OF SUCH STANDARDS.  THEREFORE, FOR THE
 REASONS MORE FULLY SET FORTH IN FEDERAL DEPOSIT INSURANCE CORPORATION
 AND, AS REFERENCED THEREIN, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C.,
 3 FLRA 783, 789 (1980), THE UNDERSCORED PORTION OF THE PROPOSAL IS
 CONSISTENT WITH LAW AND IS 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 UNION
 PROPOSAL 2.  /3/
 
                             UNION PROPOSAL 3
 
    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 SECTIONS 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.  (ONLY THE UNDERSCORED PORTION OF THIS PROPOSAL HAS
 BEEN ALLEGED TO BE OUTSIDE
 
    THE DUTY TO BARGAIN.)
 
    THE UNDERSCORED PORTION OF THIS PROPOSAL, IN PART, CONCERNS THE
 DURATION OF THE PERFORMANCE APPRAISAL CYCLE AND THE APPLICATION OF
 PERFORMANCE STANDARDS TO EACH ELEMENT OF AN EMPLOYEE'S JOB.  IN THIS
 RESPECT THE PROPOSAL IS IDENTICAL TO PROPOSALS IN FEDERAL DEPOSIT
 INSURANCE CORPORATION, SUPRA, AND SAINT LAWRENCE SEAWAY DEVELOPMENT
 CORPORATION, SUPRA, ESTABLISHING THE FREQUENCY OF PERIODIC PERFORMANCE
 APPRAISALS WHICH WERE HELD NEGOTIABLE.  THEREFORE, FOR THE REASONS SET
 FORTH IN DETAIL IN FEDERAL DEPOSIT INSURANCE CORPORATION AND SAINT
 LAWRENCE SEAWAY DEVELOPMENT CORPORATION, THE UNDERSCORED PORTION OF
 THE
 PROPOSAL IS WITHIN THE DUTY TO BARGAIN TO THE EXTENT IT WOULD ESTABLISH
 THE DURATION OF AN APPRAISAL CYCLE.
 
    FINALLY, INSOFAR AS THIS PROPOSAL WOULD REQUIRE CRITICAL ELEMENTS OF
 A POSITION AND PERFORMANCE STANDARDS TO BE ESTABLISHED IN ACCORDANCE
 WITH THE DISPUTED PORTION OF UNION PROPOSAL 1, SUPRA, PREVIOUSLY
 DETERMINED HEREIN TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106
 OF THE STATUTE, UNION PROPOSAL 3 IS LIKEWISE 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 UNION PROPOSAL 3 TO THE EXTENT SET FORTH ABOVE.  /4/
 
                             UNION PROPOSAL 4
 
    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
 
    IMPASSE WILL BE REFERRED TO THE FEDERAL SERVICE IMPASSES PANEL FOR
 RESOLUTION.  (ONLY THE
 
    UNDERSCORED PORTION OF THIS PROPOSAL HAS BEEN ALLEGED TO BE OUTSIDE
 THE DUTY TO BARGAIN.)
 
    BASED ON THE RECORD IN THIS CASE IT APPEARS THAT THE UNDERSCORED
 PORTION OF THE PROPOSAL WOULD REQUIRE BARGAINING TO IMPASSE WITH THE
 UNION AS AN EQUAL PARTNER IN DETERMINING THE SPECIFIC CONTENT OF
 PARTICULAR PERFORMANCE STANDARDS.  IN THIS REGARD, IT IS IDENTICAL TO
 PROPOSALS THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN IN
 FEDERAL DEPOSIT INSURANCE CORPORATION, SUPRA, AND SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION, SUPRA.  IN EACH OF THESE CASES, THE PROPOSAL AT
 ISSUE WAS FOUND TO REQUIRE BARGAINING WITH THE UNION CONCERNING THE
 CONTENT OF PERFORMANCE STANDARDS AND, THEREFORE, TO BE INCONSISTENT WITH
 MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(A) AND (B).  THEREFORE, FOR THE REASONS MORE FULLY SET FORTH
 IN THOSE CASES, UNION PROPOSAL 4 HEREIN IS 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 PETITION FOR
 REVIEW OF THE UNDERSCORED PORTION OF UNION PROPOSAL 4 BE, AND IT HEREBY
 IS, DISMISSED.
 
                             UNION PROPOSAL 5
 
    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.
 
    (5) ANY DISPUTE UNDER THIS ARTICLE THAT IS MADE THE SUBJECT OF AN
 APPEAL OR GRIEVANCE WILL
 
    BE STAYED UNTIL A FINAL DECISION IS RENDERED ON THE DISPUTED ISSUE.
 
    (ONLY THE UNDERSCORED PORTIONS OF THE PROPOSAL HAVE BEEN ALLEGED TO
 BE OUTSIDE THE DUTY TO
 
    BARGAIN.)
 
    SUBSECTIONS (1) AND (2) OF THE PROPOSAL WOULD PROVIDE FOR REVIEW IN A
 NEGOTIATED GRIEVANCE PROCEDURE OF THE AGENCY'S IDENTIFICATION OF THE
 CRITICAL ELEMENTS OF A POSITION AND ESTABLISHMENT OF PERFORMANCE
 STANDARDS.  AN IDENTICAL PROPOSAL WAS DISPUTED IN FEDERAL DEPOSIT
 INSURANCE CORPORATION, SUPRA, AND SAINT LAWRENCE SEAWAY DEVELOPMENT
 CORPORATION, SUPRA.  IN THOSE DECISIONS, THE AUTHORITY HELD THAT BY
 PROVIDING FOR ARBITRAL REVIEW OF THE AGENCY'S IDENTIFICATION OF THE
 CRITICAL ELEMENTS OF A POSITION AND THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS, THE PROPOSALS WERE INCONSISTENT WITH AGENCY MANAGEMENT'S
 RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A)
 AND (B) OF THE STATUTE.  THUS, FOR THE REASONS MORE FULLY SET FORTH IN
 FEDERAL DEPOSIT INSURANCE CORPORATION, AND SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION, SUBSECTIONS (1) AND (2) OF UNION PROPOSAL 5 ARE
 OUTSIDE THE DUTY TO BARGAIN.
 
    AS TO SUBSECTION (5), WHICH PROVIDES FOR THE STAYING OF AN AGENCY
 ACTION PENDING A FINAL DECISION ON APPEAL OR THROUGH THE NEGOTIATED
 GRIEVANCE PROCEDURE WITH RESPECT TO DISPUTES ARISING UNDER THE
 PERFORMANCE STANDARD SECTION, THE AUTHORITY, IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
 SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152 (1979),
 ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FLRA, 659 F.2D 1140 (D.C.
 CIR. 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, . . . U.S. . . ., 102
 S.CT. 1443 (1982), HELD THAT PROPOSALS WHICH ESTABLISHED PROCEDURES
 UNDER 7106(B)(2) OF THE STATUTE WERE WITHIN THE DUTY TO BARGAIN UNLESS
 THE AGENCY WAS PREVENTED BY SUCH PROCEDURES FROM ACTING AT ALL.  IN THAT
 CASE, THE AUTHORITY HELD THAT A PROPOSAL PROVIDING FOR A STAY OF AGENCY
 ACTION PENDING AN ARBITRATOR'S AWARD WAS WITHIN THE DUTY TO BARGAIN
 BECAUSE IT DID NOT PREVENT THE AGENCY FROM ACTING AT ALL.  THUS, IF THE
 DISPUTED PROPOSAL HAD PROVIDED ONLY FOR THE STAYING OF AGENCY ACTION
 PENDING A FINAL DECISION THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE IT
 WOULD HAVE BEEN WITHIN THE DUTY TO BARGAIN.  SEE ALSO AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS
 ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50 (1981),
 ENFORCED SUB NOM. VETERANS ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA
 V. FLRA, 675 F.2D 260 (11TH CIR. 1982).
 
    HOWEVER, THE DISPUTED PROPOSAL ALSO PROVIDES FOR A STAY OF AN AGENCY
 ACTION PENDING AN APPEAL.  IT IS CONCLUDED THAT THE TERM "APPEAL" MEANS
 AN APPEAL TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB) UNDER 5 U.S.C.
 7701, WHICH APPEAL IS REFERENCED IN SECTION 7121(E)(1) OF THE STATUTE.
 /5/ THUS, THE PROPOSAL IS NOT MATERIALLY DIFFERENT FROM THE PROPOSAL IN
 NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, U.S.
 CUSTOMS SERVICE, 9 FLRA NO. 70 (1982), WHICH PROVIDED FOR STAYING THE
 EFFECT OF ANY AGENCY DECISION AGAINST ANY EMPLOYEE PENDING THE OUTCOME
 OF ANY APPEAL TO MSPB.  IN THAT CASE, THE AUTHORITY HELD THAT SINCE MSPB
 REQUIRES FINAL AGENCY ACTION AS A PREREQUISITE TO AN EXERCISE OF ITS
 APPELLATE JURISDICTION, THE REQUIREMENT OF A STAY OF AGENCY ACTION
 PENDING AN APPEAL TO MSPB WOULD RESULT IN AGENCY ACTION BEING STAYED
 PERMANENTLY AND, THEREFORE, THE AGENCY WOULD BE PREVENTED FROM ACTING AT
 ALL TO EXERCISE ITS RIGHTS UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
 THUS, FOR THE REASONS MORE FULLY SET FORTH IN NATIONAL TREASURY
 EMPLOYEES UNION, SUPRA, SUBSECTION (5) OF THE DISPUTED PROPOSAL IS
 OUTSIDE THE DUTY TO BARGAIN BECAUSE IT REQUIRES A STAY OF AGENCY ACTION
 PENDING A FINAL DECISION IN AN APPEAL TO MSPB.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATI