13:0329(50)NG - NTEU and IRS -- 1983 FLRAdec NG



[ v13 p329 ]
13:0329(50)NG
The decision of the Authority follows:


 13 FLRA No. 50
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. O-NG-508
 
              DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
 
    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.  The text of the
 proposals is set forth in the Appendix.  Upon careful consideration of
 the entire record, including the parties' contentions, the Authority
 makes the following determinations.
 
    The record indicates that the employees covered by Union Proposal 1
 and Section 4B(2)(C) of Union Proposal 2 are subject to a performance
 appraisal system established by management wherein each critical element
 involves various sub-elements, or "aspects" in the language of the
 proposals, for which there are standards of acceptable performance.  In
 appraising these employees, the results of the performance evaluations
 achieved for each aspect of an element are combined and a standard
 applied to those results which determines the level of performance for
 the entire element.  In essence, Union Proposal 1 and Section 4B(2)(C)
 of Union Proposal 2 would establish the content of the standard for
 determining a given level of performance in a critical element in order
 for that employee to achieve a certain rating on that element.
 
    As to the employees referred to in Section 4B(2)(A) and (B) of Union
 Proposal 2, according to the record, these are employees who perform
 routine tasks which are capable of quantifiable measurement.  The record
 indicates that these employees are evaluated under a performance
 appraisal system which is formulated similarly to that applied to
 employees covered by Proposal 1 and Section 4B(2)(C) of Proposal 2.
 That is, under this system, various aspects of a given critical element
 of such an employee's work, referred to as "program/function," are
 appraised according to fixed standards for acceptable performance which
 are established by management.  Subsequently, the results achieved by
 application of the fixed standards to the specific "program/functions"
 of a given critical element would be combined according to the formula
 set forth in Section 4B(2)(B) of Union Proposal 2 in order to determine
 the level of performance for that element as established in Section
 4B(2)(A).  Thus, the provisions of Union Proposal 2 relating to these
 employees would establish the content of the standard for determining a
 given level of performance in a critical element in order for an
 employee to warrant a specific rating in that element.
 
    In thus prescribing the content of the standards for determining the
 attainment of a particular level of performance, Union Proposals 1 and 2
 herein are substantively identical to Union Proposal 2 at issue in
 National Treasury Employees Union and U.S. Nuclear Regulatory
 Commission, 13 FLRA No. 49 (1983).  In that case, the Authority held
 that the proposal at issue, which established performance standards for
 various levels of achievement, directly interfered with management's
 rights to direct employees and assign work under section 7106(a)(2)(A)
 and (B) of the Statute.  /2/ In this regard, the Authority determined,
 relying on its decision 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, 691 F.2d 553 (D.C. Cir. 1982), that the
 rights to assign work and direct employees extend to the establishment
 of job requirements for various levels of achievement, which management
 will use to encourage and reward successful performance as well as to
 discourage performance which is unacceptable.  Thus, as the Authority
 stated, an integral part of the exercise of those management rights is
 "prescribing the standards for each performance level within (an)
 agency's performance appraisal system." Therefore, for the reasons more
 fully set forth in U.S. Nuclear Regulatory Commission, Union Proposals 1
 and 2 herein directly interfere with management's rights to direct
 employees and assign work under section 7106(a)(2)(A) and (B) of the
 Statute and, thus, are outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Union Proposals 1 and 2 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., October 14, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                           Union Proposal 1 /3/
 
 Section 4 - Application of Elements/Standards
 
                                .  .  .  .
 
    B.(1) Employees will receive evaluations of each element/standard
 whenever required by the current NORD agreement, e.g., Art. 7, Art. 25.
 These evaluations will cover 12 month periods and may be revalidated
 consistent with the current agreement.
 
    (2) On each Element/Standard employees will receive a score of one
 (1) through (4) which are defined as follows:
 
          (1) Unacceptable - less than fully acceptable.
 
          (2) Fully Acceptable - meets the applicable performance
       standards of the element.
 
          (3) Exceeds Acceptable - meets the applicable performance
       standards of the elements and exceeds 30% more of the aspects.
 
          (4) Far Exceeds Acceptable - meets the applicable performance
       standards of the elements and exceeds 60% more of the aspects.
 
 Achievement of fully acceptable on the annual rating will meet the
 performance requirements for within-grade increases and probationary
 period certifications.  (Only the underlined portion of the proposal
 
       is in dispute.)
 
                           Union Proposal 2 /4/
 
 Section 4 - Application of Elements/Standards
 
                                .  .  .  .
 
 Sec. 4B(2)(A) On each element/standard employees who receive measured
 evaluations will receive a score of one (1) through (5) which are
 defined as follows:
 
          (1) Unacceptable - less than fully acceptable.
 
          (2) Fully Acceptable - meets the stated, fixed performance
       standards of the element.
 
          (3) Exceeds Acceptable - meets the stated, fixed performance
       standards of the element and exceeds them in the overall
       effectiveness category by 5%.
 
          (4) Far Exceeds Acceptable - meets the stated, fixed
       performance standards of the element and exceeds them in the
       overall effectiveness category by 10%.
 
          (5) Greatly Exceeds Acceptable - meets the stated, fixed
       performance standards of the element and exceeds them in the
       overall effectiveness category by 15%.
 
 Sec. 4B(2)(B) The fixed standard (Overall Effectiveness Category) is the
 average of all program function scores adjusted for time-weight factors
 and other current contract considerations.  The program functions score
 is the number of units accomplished in comparison to the stated, fixed
 standard as expressed in a percentage.  Sec. 4B(2)(C) On each
 element/standard employees who receive unmeasured evaluations will
 receive a score of one (1) through (5) which are defined as follows:
 
          (1) Unacceptable - less than fully acceptable.
 
          (2) Fully Acceptable - meets the applicable performance
       standard of the element.
 
          (3) Exceeds Acceptable - meets the applicable performance
       standard of the element and exceeds 20% of the aspects.
 
          (4) Far Exceeds Acceptable - meets the applicable performance
       standard of the element and exceeds 40% of the aspects.
 
          (5) Greatly Exceeds Acceptable - meets the applicable
       performance standar