14:0283(53)NG - NFFE Local 29 and Army, Kansas City District, Corps of Engineers -- 1984 FLRAdec NG

 14 FLRA No. 53
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 29
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 KANSAS CITY DISTRICT,
 CORPS OF ENGINEERS
 Agency
 
                                            Case No. O-NG-474
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of four Union proposals.  /1/ Upon careful
 consideration of the entire record, including the contentions of the
 parties, the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Section 2.b
 
          Major Job Element means a component of an employee's job that
       is not of sufficient importance in itself that performance below
       the minimal level requires removing, demoting or withholding a
       within-grade increase of the employee.  Appraisals of Major Job
       Elements may be used as a basis for other personnel decisions
       which include recognizing and rewarding employees whose
       performance so warrants, and as a basis for determining training
       needs.  (Only the underlined portion of the proposal is in
       dispute.)
 
    Under Union Proposal 1 management could deny a within-grade increase
 to an employee only if the employee performed "below the minimal level"
 in a "critical," as opposed to a "major," element.  In this regard,
 applicable Army regulations define a "major element" as a major duty or
 responsibility of a position;  and such elements could include both
 critical and noncritical elements.  /2/
 
    Under applicable Government-wide regulations the granting of a
 within-grade increase must be based on an overall employee performance
 rating of fully acceptable (fully satisfactory or fully successful) as
 established in the agency's performance appraisal system.  /3/
 Understood in terms of this regulatory requirement, therefore, and
 consistent with the Union's stated intent, /4/ Union Proposal 1 would
 preclude management from establishing, as a criterion for fully
 acceptable overall performance, a level of performance which would
 include assessment of performance in a noncritical "major" element.
 Conversely, the proposal would require management to establish as a
 criterion for the granting of a within-grade increase a standard of
 overall performance which would encompass even minimally satisfactory
 performance in one or all major job elements.
 
    In thus prescribing the level of performance which would evidence an
 "acceptable level of competence," i.e., performance which would merit an
 overall rating of fully acceptable, so as to qualify an employee for a
 within-grade increase, Union Proposal 1 has the same effect as Union
 Proposal 6 in American Federation of Government Employees, AFL-CIO,
 Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA
 No. 2 (1984), which established the quality of performance necessary to
 attain a positive acceptable level of competence rating.  In that case,
 the Authority held, relying on its decision in American Federation of
 State, County and Municipal Employees, AFL-CIO, Council 26 and U.S.
 Department of Justice, 13 FLRA No. 96 (1984), that by establishing the
 performance requirements for a given level of performance, i.e., the
 granting of a within-grade increase, the proposal at issue directly
 interfered with management's rights to direct employees and assign work
 under section 7106(a)(2)(A) and (B) of the Statute.  /5/ Thus, for the
 reasons more fully set forth in the Department of Justice and Office of
 Personnel Management decisions, Union Proposal 1 herein, which likewise
 establishes the level of performance required to receive a within-grade
 increase, directly interferes with management's rights to direct
 employees and assign work and is outside the duty to bargain.  /6/
 
                             Union Proposal 2
 
          Section 2.c
 
          Performance Standards is the description of the level of
       accomplishment or achievement for performance of the duties and
       responsibilities of a position or group of positions;  expressed
       as a range of performance in terms such as:  quality, quantity,
       timeliness, etc.  As required by this contract, performance
       standards for each critical element will be established for five
       levels of performance, e.g., exceptional, highly successful, fully
       successful, marginal, and unsatisfactory.  (Only the underlined
       portion of the proposal is in dispute.)
 
                             Union Proposal 3
 
          Section 2.e
 
          The following definitions shall apply to the summary or overall
       performance appraisal rating:
 
          (1) Exceptional.  Performance that meets the performance
       standard for exceptional performance in one or more critical
       elements and at least meets the performance standards for fully
       successful performance for all other critical elements.
 
          (2) Highly successful.  Performance that meets the performance
       standard for highly successful performance in one or more critical
       elements and meets the performance standard for fully successful
       performance for all other critical elements.
 
          (3) Fully successful.  Performance that meets the performance
       standard for fully successful performance for all critical
       elements.
 
          (4) Marginal.  Performance below the performance standard for
       fully successful performance for one or more critical elements,
       but at least meets the performance standard for marginal
       performance for all critical elements.
 
          (5) Unsatisfactory.  Performance that fails to meet at least
       the performance standard for marginal performance in one or more
       critical elements.
 
    Union Proposal 2 requires the Agency to establish five rating levels
 for each critical element.  Union Proposal 3 establishes five rating
 levels for appraising an employee's overall performance and sets forth
 criteria for determining the quality of performance necessary to achieve
 a given overall rating.  In this regard, Union Proposals 2 and 3 have
 the same effect as the proposal at issue in American Federation of
 State, County and Municipal Employees, AFL-CIO, Council 26 and U.S.
 Department of Justice, 13 FLRA No. 96 (1984), which prescribed the
 number of rating levels to be used for each critical element and for
 overall evaluations, and the level of performance which would warrant a
 given overall rating.  In that case, the Authority held that the
 determination of the number of performance levels for both individual
 job elements and overall performance and the establishment of criteria
 for assessing the overall level of performance of an employee were
 essential aspects of 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 the Department of Justice decision,
 Union Proposals 2 and 3 are outside the duty to bargain under the
 Statute.  /7/
 
                             Union