16:0285(43)NG - NTEU and HHS, SSA, Office of Hearings and Appeals -- 1984 FLRAdec NG



[ v16 p285 ]
16:0285(43)NG
The decision of the Authority follows:


 16 FLRA No. 43
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL SECURITY
 ADMINISTRATION, OFFICE OF HEARINGS
 AND APPEALS
 Agency
 
                                            Case No. O-NG-832
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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 presents an issue
 concerning the negotiability of the following provision of an agreement
 disapproved by the Agency head pursuant to section 7114(c) of the
 Statute:
 
    Article 37, Section 5.c Performance Appraisals
 
          1.  Unsatisfactory.  This appraisal applies if the employee
       failed to meet one or more critical job elements regardless of
       performance on non-critical elements.
 
          2.  Minimally Satisfactory.  This appraisal applies if the
       employee only partially met one or more critical job elements or
       if the employee met all critical job elements but failed to meet a
       substantial number of non-critical job elements.
 
          3.  Fully Satisfactory.  This appraisal applies if the
       employee, at a minimum, met all critical job elements and most
       non-critical job elements OR if the employee exceeded all of the
       critical job elements and met a number of non-critical job
       elements.
 
          4.  Excellent.  This summary appraisal applies if the employee
       exceeded all of the critical elements and most of the non-critical
       elements OR if the employee substantially exceeded all critical
       job elements and met a substantial number of non-critical job
       elements.
 
          5.  Outstanding.  This summary appraisal applies if the
       employee substantially exceeded all critical job elements and most
       non-critical job elements.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 The provision would establish the number of rating levels for an
 appraisal of overall performance and what quality of overall performance
 is required in order to achieve a particular overall rating.  As such,
 it is substantially identical in effect to a portion of the union's
 proposal which was before the Authority in American Federation of State,
 County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department
 of Justice, 13 FLRA No. 96 (1984).  In that case, the Authority held
 that a portion of a proposal to set the number of rating levels for an
 appraisal of overall performance and to determine what quality of
 performance would be required to obtain a particular rating was
 inconsistent with management's rights to direct employees and assign
 work under section 7106(a)(2)(A) and (B) of the Statute.  In this
 regard, the Authority held that an essential aspect of management's
 assignment of work and the direction of employees in the performance of
 their work was to establish the job requirements for various levels of
 performance so as to achieve the quality and amount of work needed to
 fulfill the agency's mission and functions.  Based upon Department of
 Justice and for the reasons more fully stated therein, it is concluded
 that the instant provision is outside the duty to bargain.  /1/ Of
 course, a proposal or provision 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 Au