11:0271(58)NG - NTEU and NTEU Chapter 27 and IRS, Austin Service Center -- 1983 FLRAdec NG



[ v11 p271 ]
11:0271(58)NG
The decision of the Authority follows:


 11 FLRA No. 58
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NTEU CHAPTER 72
 Union
 
 and
 
 INTERNAL REVENUE SERVICE,
 AUSTIN SERVICE CENTER
 Agency
 
                                            Case No. O-NG-54
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and raises issues
 concerning the negotiability of two Union proposals.
 
                             Union Proposal 1
 
          Attainment and maintenance by an employee of a cumulative
       effectiveness of at least 80% of the current peer group rate is
       prima facie evidence of satisfactory performance for the purpose
       of making within-grade increase and grade retention decisions.
 
                       Question Before the Authority
 
    The question is whether Union Proposal 1 is inconsistent with
 management's rights to direct employees and assign work under section
 7106(a)(2)(A) and (B) of the Statute, as alleged by the Agency.
 
                                  Opinion
 
 Conclusion and Order:  Union Proposal 1 is inconsistent with
 management's rights to direct employees and assign work under section
 7106(a)(2)(A) and (B) of the Statute.  /1/ Accordingly, pursuant to
 section 2424.10 of the Authority's Rules and Regulations (5 CFR
 2424.10), IT IS ORDERED that the petition for review as to Union
 Proposal 1 be, and it hereby is, dismissed.  Reasons:  Based on the
 Union's stated intent, /2/ which is consistent with the language of the
 proposal, Union Proposal 1 would establish the level of output which the
 Agency must accept as satisfactory performance with respect to the
 quantity of work produced when determining whether to retain unit
 employees at their present grade level and to grant them a within-grade
 increase.  In thus prescribing what quantity of output will be
 satisfactory, Union Proposal 1 is not materially distinguishable from
 the proposal at issue in National Treasury Employees Union and
 Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
 (1980), affirmed sub nom. National Treasury Employees Union v. Federal
 Labor Relations Authority, . . . F.2d . . . (D.C. Cir. 1982).  In that
 case, the Authority held that a proposal which established a
 quantitative standard for job retention directly interfered with the
 agency's rights to direct employees and assign work under section
 7106(a)(2)(A) and (B) by prescribing the level of output which the
 agency could require of employees for such purposes.  Thus, for the
 reasons more fully stated in Bureau of the Public Debt, Union Proposal 1
 is outside the Agency's duty to bargain under section 7106(a)(2)(A) and
 (B) of the Statute.
 
    The Authority reaches this conclusion notwithstanding the Union's
 argument in the present case that, since the proposal makes
 accomplishment of the standard only prima facie evidence of satisfactory
 overall performance, it preserves the Agency's discretion regarding
 retention and promotion decisions.  As the Union itself concedes, /3/
 however, the accomplishment of the proposed standard would be conclusive
 as to the requirements for satisfactory quantitative output.  Thus, the
 proposal is nonnegotiable under Bureau of the Public Debt.
 
                             Union Proposal 2
 
          Attainment and maintenance by an employee of a quantity rate of
       85% cumulative effectiveness with respect to the next highest
       grade level is prima facie evidence of good performance for the
       purpose of making promotion decisions.
 
                       Question Before the Authority
 
    The question is whether Union Proposal 2 is inconsistent with law,
 i.e., 5 U.S.C. 4302 and section 7106(a)(2) of the Statute, as alleged by
 the Agency.
 
                                  Opinion
 
 Conclusion and Order:  Union Proposal 2 is consistent with law.
 Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations (5 CFR 2424.10), IT IS ORDERED that the Agency shall upon
 request (or as otherwise agreed to by the parties) bargain concerning
 Union Proposal 2.  /4/ Reasons:  The record indicates that the disputed
 proposal would apply only to employees in career ladder positions.
 Among the factors which an agency may consider in evaluating an
 employee's promotion potential in a career ladder is his or her ability
 to meet the quantitative output requirements of the higher grade.  See,
 e.g., Federal Personnel Manual (FPM) Supplement 335-1, Appendix B,
 Guidelines for Evaluating Employees for Promotion and Internal
 Placement, section B-4.b.(2) and section B-8.b.(1).  In this connection,
 Union Proposal 2 would establish a criterion for evaluating an
 employee's ability to perform higher-grade duties for use in making such
 a promotion decision by providing that maintenance of an 85% cumulative
 effectiveness rate as to quantity of higher graded work produced is
 prima facie evidence of good performance for career ladder promotion
 potential.  /5/ Thus, under the proposal, insofar as an employee's
 ability to meet the output requirements of the higher grade may be at
 issue in connection with a decision to promote to that grade,
 performance which meets the criterion would be sufficient to make an
 employee eligible for promotion but would not compel the Agency to
 promote the employee.
 
    The Agency contends that the proposal would require the application
 to employees of performance standards for higher grades in career ladder
 positions.  It claims, therefore, that the proposal is inconsistent with
 5 U.S.C. 4302 which requires that only performance standards for the
 position currently occupied may be applied to an employee.  /6/ Contrary
 to the Agency's contentions, section 4302 does not prohibit the
 development of separate criteria for use in evaluating employees for
 purposes of promotion.  Indeed, the FPM specifically contemplates such
 separate criteria and cautions agencies that performance appraisal under
 chapter 43 of title 5 of the United States Code and evaluation of an
 employee's promotion potential are related but distinct activities which
 should be conducted separately.  /7/ Thus, Union Proposal 2 is not
 inconsistent with 5 U.S.C. 4302.
 
    Further, the Agency contends that Union Proposal 2 violates
 management's right to make selections for promotion under section
 7106(a)(2)(C) of the Statute.  /8/ This argument, however, assumes that
 a decision to promote an employee to the next grade in a career ladder
 position constitutes making a selection for appointment within the
 meaning of section 7106(a)(2)(C).  To the contrary, the Authority held
 in American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 8 FLRA No. 97 (1982)
 (Union Proposal III) that a career ladder promotion is merely a
 "ministerial act" implementing a prior decision to select an employee
 for appointment.  Thus, section 7106(a)(2)(C) does not bar negotiation
 on Union Proposal 2.
 
    Finally, the Agency's claims that Union Proposal 2 violates
 management's rights to direct employees and assign work under section
 7106(a)(2)(A) and (B) of the Statute are not persuasive.  The criterion
 established in the proposal merely would serve as a guideline for
 predicting employee performance at the higher grade level rather than as
 a standard of productivity for the current level.  /9/ Thus, it is
 distinguishable from the proposal at issue in National Treasury
 Employees Union and Department of the Treasury, Bureau of the Public
 Debt, 3 FLRA 769 (1980), which directly interfered with the right of the
 Agency to determine the amount of work an employee will be required to
 produce in his or her current position.  Union Proposal 2 would have no
 such limiting effect.  Therefore, Union Proposal 2 would not directly
 interfere with management's rights to direct employees or assign work.
 Issued, Washington, D.C., February 3, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7106 of the Statute provides, in relevant part, 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 . . . direct . . . employees in the agency . . . ;
 
          (B) to assign work(.)
 
 
    /2/ The Union states that the proposal is "concerned with only one
 facet of employee performance-- quantity of work produced-- and hence
 must be examined strictly in terms of establishing production
 expectations." Union Response to Agency Statement of Position at second
 unnumbered page of text.
 
 
    /3/ Union Response to Agency Statement of Position at third
 unnumbered page of text.
 
 
    /4/ In deciding that Union Proposal 2 is within the duty to bargain,
 the Authority makes no judgment as to its merits.
 
 
    /5/ In elaborating on the effect of its proposal, the Union states
 that it is intended to provide a basis for, e.g., comparing an
 employee's performance at his or her current grade level with the
 performance of employees at the next higher grade, where the work is
 "reasonably similar in both grade levels," so as to assess whether the
 employee is qualified to perform the work of the higher grade.  Union
 Response at fourth unnumbered page of text.  It is noted, in this
 regard, that nothing in the proposal as explained by the Union would
 require the assignment of higher graded work to employees.  Cf. National
 Treasury Employees Union and Department of the Treasury, U.S. Customs
 Service, 9 FLRA No. 138 (1982) (wherein the Authority held a proposal
 compelling assignment of higher graded work to be outside the duty to
 bargain.)
 
 
    /6/ 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.
 
 
    /7/ FPM, chapter 430, Appendix A, Guidance on Improving Performance
 Appraisal, section A-6.b.(2) provides as follows:
 
    A.6.  Improving Appraisals of Performance
 
                                .  .  .  .
 
    (2) Appraisals for different purposes and some cautions on
 multipurpose appraisals.  The performance appraisal required by chapter
 43 of title 5 United States Code is based on an appraisal of an
 employee's performance in the current job.  Performance appraisal for
 merit promotion purposes, however, involves predicting an employee's
 future performance of job duties, some of which may not be part of the
 present job.  Appraisals for different purposes may require different
 kinds of information.  Therefore, appraisals for different purposes
 should be distinct from each other and prepared separately unless
 appraisals require the same kinds of information or the system provides
 sufficiently in-depth appraisals to achieve all the desired purposes.
 If an agency does use a multipurpose appraisal system, it is important
 for its system to provide a means of identifying and differentiating
 among the performance elements which will be used as a basis for the
 performance appraisal required by chapter 43, title 5, United States
 Code, and the performance elements which are important for success in
 higher level work, i.e., used for merit promotion purposes.
 
 
    /8/ Section 7106(a)(2)(C) provides: