13:0578(96)NG - AFSCME and Justice -- 1984 FLRAdec NG

[ v13 p578 ]
The decision of the Authority follows:

 13 FLRA No. 96
                                            Case No. O-NG-529
    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).  The issue presented
 is the negotiability of the following proposal:
                              Union Proposal
          Section 11.3.  RATING LEVELS:  There will be five rating levels
       for individual elements of an employee's position:
       unsatisfactorily, minimally satisfactory, fully successful,
       excellent, and outstanding.  There will be three rating levels for
       overall performance:  unsatisfactory, satisfactory, and
       outstanding.  An employee will be rated unsatisfactory if one or
       more individual critical elements is rated unsatisfactory.  To
       receive an outstanding performance rating, the employee must
       demonstrate outstanding performance in a majority of the critical
       elements of the position and no individual performance element may
       be less than fully successful.
                       Question Before the Authority
    The question presented is whether, as alleged by the Agency, the
 Union's proposal is inconsistent with management's rights to direct
 employees in the agency and to assign work under, respectively, section
 7106(a)(2)(A) and (B) of the Statute.
    Conclusion and Order:  The Union's proposal is inconsistent with the
 rights to direct employees and to assign work under section
 7106(a)(2)(A) and (B).  Accordingly, pursuant to section 2424.10 of the
 Authority's Rules and Regulations, IT IS ORDERED that the Union's
 petition for review be, and it hereby is, dismissed.
    Reasons:  The last two sentences of the proposal would establish what
 quality of performance in individual job elements would be required to
 achieve a particular summary rating.
    In National Treasury Employees Union and Department of the Treasury,
 Bureau of the Public Dept, 3 FLRA 769, 776-78(1980), affirmed sub nom.
 National Treasury Employees Union v. Federal Labor Relations Authority,
 691 F.2d 553, 556-57, 564 (D.C.Cir 1981), it was held that, in order to
 achieve the levels of productivity and quality needed to accomplish an
 agency's mission and functions, management may determine, pursuant to
 its rights to assign work and direct employees, what work will be done,
 by whom, when, and what standards of quality and quantity are expected.
 Thus, in that case the Authority found a proposal to establish a
 particular critical element and a performance standard with respect to
 that element outside the duty to bargain.  Thereafter, in National
 Treasury Employees Union and U.S. Nuclear Regulatory Commission, 13 Flra
 no. 49(1983), the Authority held that those management rights extend to
 the establishment of the job requirements, i.e., productivity or
 performance standards, for individual job elements which serve as the
 basis for encouraging and rewarding successful performance and
 discouraging and remedying performance which is unacceptable.  /1/
    Some rewards or sanctions are based on overall performance /2/ while
 others are based on an employee's performance in a single job element.
 /3/ Thus, as to overall performance as well as performance in each job
 element, an essential aspect of management's assignment of work and the
 supervision and guidance of employees in the performance of their work
 is to establish job requirements for various levels of performance so as
 to achieve the quality and amount of work needed from employees to
 effectively and efficiently fulfill the agency's mission and functions.
 Consequently, the portion of the Union's proposal which would establish
 the particular levels of performance in individual job elements which
 would be required to achieve a particular summary rating for overall
 performance is not within the duty to bargain because it is inconsistent
 with management's rights to assign work and to direct employees.  Of
 course, a proposal which would permit an employee to grieve the
 application to that employee of the performance requirements established
 by management would be within the duty to bargain.  American Federation
 of Government Employees, AFL-CIO, Local 1968 and Department of
 Transportation, Saint Lawrence Seaway Development Corporation, Massena,
 New York, 5 FLRA 70 (1981) (Union) Proposal 4), affirmed sub nom.
 American Federation of Government Employees, AFL-CIO, Local 1968 v.
 Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir. 1982), cert.
 denied, . . . U.S. . . . , 103 S.Ct. 2085(1983).
    The proposal would also establish in the first two sentences the
 number of rating levels for the appraisal of an employee's performance
 in individual job elements and for a summary appraisal of overall
 performance.  In affirming the Bureau of the Public Debt decision
 discussed above, the United States Court of Appeals for the District of
 Columbia stated:
          Without a doubt, the right to determine what work will be done,
       and by whom and when it is to be done, is at the very core of
       successful management of the employer's business, whether a
       private-sector ent