13:0426(75)NG - NFFE and Army, Fort Monmouth, NJ -- 1983 FLRAdec NG
[ v13 p426 ]
The decision of the Authority follows:
13 FLRA No. 75 NATIONAL FEDERATION OF FEDERAL EMPLOYEES Union and DEPARTMENT OF THE ARMY, FORT MONMOUTH, NEW JERSEY Agency Case No. O-NG-611 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. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 The proposed performance appraisal will be discussed with the employee first and then with the reviewer and up the appraisal chain. The Agency contends that the proposal pertains to the managerial deliberations and discussions which are part of the decision-making process of appraising employee performance and thus does not concern matters which are conditions of employment within the meaning of section 7103(a)(14). The scope of the duty to bargain under the Statute extends to conditions of employment, i.e., personnel policies, practices and matters affecting working conditions, affecting employees in a unit of exclusive recognition. In this connection, contrary to the Agency's contention, the right of employees to discuss proposed performance appraisals is a matter affecting working conditions of the employees involved since, clearly, the consequences of a performance appraisal directly impact upon the work situation and employment relationship of the employees. /2/ Furthermore, the discussion of a proposed performance appraisal is not inconsistent with management's rights under section 7106(a)(2) of the Statute. /3/ The proposal literally only would require management to discuss the proposed performance appraisal with the employee prior to the reviewer and others in the appraisal chain. Implicitly, and as explained by the Union, "(o)nce the employee has discussed the 'proposed' appraisal with his/her supervisor, management can take whatever action or make whatever deliberations they wish." Thus, contrary to the Agency contention that the proposal interferes with internal management deliberations on the appropriate rating level to assign an employee's performance, the proposal does not interfere with management's rights to direct employees and assign work. Finally, the Agency contends the proposal would impede effective management communications. It claims, therefore, that the proposal is inconsistent with 5 U.S.C. 4302 which requires that a performance appraisal system shall establish performance standards which will permit accurate evaluation of job performance on the basis of objective criteria. /4/ Contrary to the Agency's contention, section 4302 does not provide a basis for determining that this proposal is outside the Agency's duty to bargain. The proposal does not prohibit the Agency from further discussion and evaluation of the employee's performance to render an accurate evaluation. Management's rights under section 7106(a) are subject to an agency's duty to bargain on procedures under section 7106(b)(2) of the Statute. /5/ The proposal herein is a procedure which merely would delay but which would not prevent the Agency from acting at all to exercise its reserved management rights /6/ and is within the duty to bargain. /7/ Union Proposal 2 Employees will: Paragraph 5: At the time of the annual performance appraisal share in planning, training and development activities for the following year-- This planning will be included in the Individual Development Plan (IDP). It is agreed by management and the union that training for the employee is a very important aspect of the employee's job opportunity and the supervisor will counsel and encourage employees to participate in all training appropriate to enhance the employee's career and self-development. It is further agreed that in some instances management will decide that an employee is performing at an unsatisfactory level and training will be needed to bring the employee's performance to a satisfactory level. It is also recognized that an employee who is performing at a fully successful level may not require any training to maintain his work at a fully successful level. In this instance the employee would not be required to take any training, but may be counseled as to the benefits such as, awards or promotions that may accrue as a result of further training. (Only the underscored portion of the proposal is in dispute.) Contrary to the Union's assertion that the proposal is only a procedure that management would use in scheduling training based upon performance, the express language of the proposal would absolutely prohibit management from assigning training to an employee performing at a fully successful level. It is well settled under Authority precedent that proposals which would contractually obligate an agency to provide formal training, to periodically assign employees to specific types of training programs, and to make specific training assignments upon employee requests are outside the duty to bargain: The assignment of training under such circumstances constitutes an assignment of work the negotiation of which would be inconsistent with management's right to assign work under section 7106(a)(2)(B). See, e.g., American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA No. 87 (1982). Similarly, it is concluded the proposal here is outside the duty to bargain because it would be inconsistent with management's right to assign work under section 7106(a)(2)(B) by precluding the Agency from requiring training under certain circumstances. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on Union Proposal 1. /8/ IT IS FURTHER ORDERED that the petition for review with respect to Union Proposal 2 be, and it hereby is, dismissed. Issued, Washington, D.C., November 23, 1983. Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its response to the Agency's Statement of Position, the Union withdrew its petition for review as to two proposals. /2/ See National Treasury Employees Union and Internal Revenue Service, 3 FLRA 692 (1980). /3/ 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(.) /4/ 5 U.S.C. 4302 provides, as relevant herein, as follows: Sec. 4302. Establishment of performance appraisal systems . . . . (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 . . . related to the job in question for each employee or position under the system(.) /5/ Section 7106(b)(2) of the Statute provides: Sec. 7106. Management rights . . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section(.) /6/ See 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. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). /7/ The Authority notes that the Office of Personnel Management has caused to be published in 48 Fed.Reg., 49,478-81 (1983), a regulation intended to become effective November 25, 1983. Such regulation, at Sec. 430.204(o), provides as follows: (o) Periodic performance ratings and performance based personnel actions shall be reviewed and approved by a supervisor or manager at a higher level than the appraising official. Performance ratings shall be in writing and shall be provided to the employee. Performance ratings may not be communicated to employees prior to approval by a higher level reviewer. If and when such Government-wide regulation, (See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2027 and Action, Washington, D.C., 12 FLRA No. 128 (1983) (Proposal 2), becomes effective, it appears that the instant proposal could potentially be inconsistent with the last sentence of the quoted section. /8/ In deciding that Union Proposal 1 is within the duty to bargain, the Authority makes no judgment as to its merits.