16:0313(49)NG - NFFE Local 943 and Air Force, Keesler AFB, MS -- 1984 FLRAdec NG



[ v16 p313 ]
16:0313(49)NG
The decision of the Authority follows:


 16 FLRA No. 49
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES,
 LOCAL 943
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 KEESLER AIR FORCE BASE, MISSISSIPPI
 Agency
 
                                            Case No. O-NG-581
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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 issues concerning the negotiability of the
 following proposal which relates to the Agency's Performance Appraisal
 Program.
 
          Section A. The Performance Appraisal program shall be
       implemented for bargaining unit employees in compliance with
       Chapter 43, Title 5 U.S.C., Chapter 430 of the Federal Personnel
       Manual, and this agreement.
 
          Section B.  The Employer has the exclusive right to establish
       performance standards, critical elements and non-critical elements
       under guidelines developed by a Union/Mgnt Performance Standards
       Panel.  These standards and critical and non-critical elements
       shall be in writing and shall be consistent with the duties and
       responsibilities contained in the employee's position description.
        These standards shall be job related and objective.  Each
       employee shall be given a copy of their position description,
       performance standards, and critical and non-critical elements that
       relate to their position.
 
          Section C. The Employer agrees to encourage employees to
       participate in the establishment of performance elements and
       performance standards for their individual position and to allow
       the employee to have a Union representative present during
       discussions of the elements and standards.  Employees shall be
       encouraged to provide input to their supervisors via comments and
       recommendations during the development of standards for their
       position.  In the event that the employee and supervisor cannot
       agree upon applicable performance standards and critical elements
       for an employee or position, the matter shall be referred to a
       Union/management performance standards panel containing a union
       member who will be an active participant in discussions.  The
       standards and critical and non-critical elements shall be put in
       writing and signed or initialed by the employee and supervisor.
       Amendments should be noted with the parties' initials.  Employees
       and their supervisors shall meet at least once each year to
       discuss the performance standards and critical and non-critical
       elements applicable for the coming rating year.  Performance
       Elements and Standards will be given in writing to the employee at
       the beginning of the appraisal period.
 
          Section D.  Employees shall receive a performance appraisal
       from a supervisor located at the employees' worksite which shall
       be accomplished in a fair and objective manner and based on a
       comparison of employee performance with the standards established
       for the appraisal period in accordance with the following:
 
          1.  The supervisor shall discuss the employee's job performance
       with the employee in private surroundings at least once every
       three (3) months during the rating period.
 
          2.  If the supervisor has identified shortcomings in the
       employee's performance, the employee will be notified when the
       problem is perceived, at the three (3) month's discussion, and at
       anytime thereafter, if necessary.  The supervisor will suggest
       ways for the employee to improve his/her performance to a
       satisfactory level, and provide necessary training which may be
       required.  Follow-up discussions may be held after the initial
       discussion, if required.
 
          3.  The annual performance appraisal will be in written form.
       The supervisor shall discuss the completed appraisal with the
       employee in private during the month in which the rating is due.
       This discussion should confirm and summarize previous discussions,
       plus any significant observations made since the last discussion.
       The signing of the applicable Air Force form by the employee
       merely acknowledges receipt of the appraisal, but not necessarily
       agreement with it.  Each employee will be given a completed copy
       of the performance appraisal.  Annual Performance Appraisals will
       be reviewed by Performance Standards Panel for appropriateness of
       the rating and to insure that no unlawful discrimination of any
       kind is involved in the rating.  (Only the underscored portions
       are in dispute.)
 
    As explained by the Union, section B, C and the latter portion of
 section D(3) of the proposal would, among other things, require that a
 panel, including one union participant, be established by the Agency to
 oversee the Agency's establishment and administration of performance
 standards.  Specifically the panel would develop guidelines under which
 the Agency would establish the performance standards;  it would resolve
 differences between supervisors and employees regarding the performance
 standards and critical elements to be applied to individual positions;
 and it would review all annual performance appraisals for
 appropriateness.
 
    A proposal of this sort which would require union participation in a
 formal organizational element assigned responsibility for management
 deliberations would have the effect of directly interfering with
 management's right to make the decision involved.  National Federation
 of Federal Employees, Local 1431 and Veterans Administration Medical
 Center, East Orange, New Jersey, 9 FLRA 998 (1982).  Additionally, the
 Authority has held that the designation of critical elements and
 performance standards is a matter which is outside the duty to bargain
 because it is within management's authority to direct its employees and
 assign work under section 7106(a)(2)(A) and (B) of the Statute.
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury
 Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
 
    Based on the proposal itself and the Union's statement as to the
 intent of the proposal, the functions of the panel in relation to the
 performance appraisal system would involve a substantive role in the
 decision-making process with respect to the designation of performance
 standards and critical elements.  More specifically, the panel would,
 among other things, resolve differences between supervisors and
 employees as to what performance standards and critical elements should
 be applied to a position and review performance appraisals given by
 supervisors.  /1/ Clearly, such resolution would involve a determination
 on the actual content of the performance standards or critical elements
 in dispute.  Hence, the proposal would necessarily interject the Union
 into a decision-making process involving the exercise of management
 rights.  Consequently, the disputed portions of sections B, C and D(3)
 of the proposal would directly interfere with management's rights under
 section 7106 of the Statute to direct employees and to assign work.  /2/
 Those portions are, therefore, not within the duty to bargain.  /3/
 
    Turning now to the first sentence of section D of the proposal, which
 is also in dispute, by its terms, it would dictate to the Agency which
 supervisors would be assigned the function of appraising employees.  In
 this respect, it is substantially identical to Union Proposal 2 in
 American Federation of Government Employees, AFL-CIO, Local 1858 and
 Department of the Army, U.S. Army Missile Command, Redstone Arsenal,
 Alabama, 10 FLRA 440 (1982).  In Redstone Arsenal the Authority relied
 upon Congressional Research Employees Association and the Library of
 Congress, 3 FLRA 737 (1980) to find that a proposal which specified
 which personnel within an agency would evaluate the work performance of
 employees directly interfered with management's right to assign work
 under section 7106(a)(2)(B) of the Statute.  Thus, for the reasons set
 forth in the Library of Congress decision, the Authority finds that the
 first sentence of section D is not within the duty to bargain.
 
    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.  /5/ Issued, Washington, D.C., October 30, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Of course, a proposal which would require that employees agree
 with the performance standards and/or critical elements to be applied to
 their positions would similarly be nonnegotiable.  See American
 Federation of Government Employees, AFL-CIO, Local 2849 and Office of
 Personnel Management, New York Regional Office, 7 FLRA 571 (1982) (Union
 Proposal 4).
 
 
    /2/ See National Federation of Federal Employees, Local 1431 and
 Veterans Administration Medical Center, East