14:0457(74)NG - International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and Norfolk Naval Shipyard -- 1984 FLRAdec NG
[ v14 p457 ]
The decision of the Authority follows:
14 FLRA No. 74 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS Union and NORFOLK NAVAL SHIPYARD Agency Case No. O-NG-552 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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). The issue presented is the negotiability of the following Union proposal: Performance standards will be described in writing for outstanding, satisfactory, and unsatisfactory performance levels for each critical or non-critical element established. All performance elements shall be in writing and discussed with the employee at the beginning of each rating cycle. (Delete all future reference to marginal and highly satisfactory performance levels.) (Only the underlined portions are in dispute.) Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The Union's proposal would establish the number of rating levels for the appraisal of an employee's performance in each job element. In this regard, the proposal would have the same effect as a portion of the proposal 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 the Authority held to be outside the duty to bargain because it interfered with management's rights under section 7106(a) of the Statute to direct employees in the agency and to assign work. In this regard, the Authority held that the number of rating levels was integrally related to the effectiveness of an agency's using performance standards to accomplish the work of the agency. Moreover, the Authority held that insofar as a proposal had the effect of requiring or preventing the establishment of a performance standard it directly interfered with the agency's right to establish performance standards. Base on Department of Justice and for the reasons fully stated therein, it is concluded that the instant proposal is outside the duty to bargain. /1/ 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). 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. Issued, Washington, D.C., May 9, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this determination, the Authority finds it unnecessary to address the Agency's additional contentions that the proposal is outside the duty to bargain because it conflicts with a Government-wide regulation and an Agency regulation for which a compelling need exists.