16:0816(114)NG - AFGE Local 1940 and Agriculture, Plum Island Disease Center -- 1984 FLRAdec NG



[ v16 p816 ]
16:0816(114)NG
The decision of the Authority follows:


 16 FLRA No. 114
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1940
 Union
 
 and
 
 DEPARTMENT OF AGRICULTURE,
 PLUM ISLAND DISEASE CENTER
 Agency
 
                                            Case No. O-NG-676
 
                DECISION AND ORDER on NEGOTIABILITY ISSUES
 
    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 raises issues
 concerning seven proposals.  Upon careful consideration of the entire
 record, including the parties' contentions, the Authority makes the
 following determinations.  /1/
 
    While the record is not precise as to how the various parts of the
 proposals relate to one another, the Union has not requested that the
 various components of each proposal be ruled upon separately.
 Therefore, each proposal is treated as a whole.  /2/
 
                             Union Proposal 1
 
    For the purpose of this Article, the following definitions will
 apply:
 
          A. A job element is any major component of an employee's job
       that has been included in the official position description which
       can be objectively measured.
 
          B.  A critical element is a job element which is of such
       importance that if it is not performed adequately, acceptable
       performance of the job as a whole is not possible.
 
          C. A non-critical element is a job element that is not
       critical, but is important enough to require measurements based on
       objective criteria.
 
          D.  A performance standard is a statement of objective
       requirements measuring various levels of achievement for critical
       and non-critical elements.  All performance standards must be
       fair, equitable, objective, valid, reliable and job related.
 
    The proposal sets forth definitions for several terms relating to
 performance appraisal systems.  There is no indication that the Union,
 in proposing the definitions, intends that they be applied in any manner
 which is inconsistent with statutory /3/ and regulatory /4/ provisions
 which govern the establishment of performance appraisal systems.  Nor is
 the proposal, taken on its face, inconsistent with law or regulation in
 that it is not incompatible or irreconcilable with provisions which
 govern the establishment of such systems.  In this regard this proposal
 is to the same effect as Union Proposals 2 and 3 in American Federation
 of Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, Washington, D.C., 3 FLRA 784 (1980) which the Authority
 found within the duty to bargain.  Additionally, insofar as the
 definition of the term "performance standard" would include a provision
 that performance standards be "fair, equitable, objective, valid,
 reliable and job related," it is materially to the same effect as Union
 Proposal 2 in American Federation of Government Employees, AFL-CIO,
 Local 3804 and Federal Deposit Insurance Corporation, Chicago Region,
 Illinois, 7 FLRA 217 (1981).  In this regard it, like the proposal in
 FDIC, would establish a general, nonquantitative requirement by which
 the application of established performance standards could be evaluated
 in a grievance.  In FDIC the Authority relied upon two previous cases
 /5/ and found that a proposal with such an effect was within the duty to
 bargain.
 
    Based on the foregoing and for the reasons set forth in OPM and FDIC
 the Authority finds that Union Proposal 1, herein, is within the duty to
 bargain.
 
                             Union Proposal 2
 
    Procedures for Developing Elements and Performance Standards.
 
          A. Each position will be accurately described in a position
       description before performance standards are established.
 
          B.  Performance standards will be established in accordance
       with 5 USC 4301, et. seq. and this Article.  Procedures for
       employee participation will be negotiated with the Union.
 
          C. Positions which are essentially the same shall have the same
       critical elements.
 
          D.  There shall be no secret studies bearing on performance
       standards.  All studies conducted by the employer will be
       conducted on average workers under normal working conditions.  The
       Union shall be allowed to have an observer present in the
       development or revision of all measures of performance and
       studies.  All information derived from such work studies will be
       provided to the Union within five (5) days of completion of the
       study.  The Union shall have the right to conduct independent time
       studies during duty hours in addition to receiving all documents
       and data used in developing performance standards.
 
          E.  Production studies or goals shall not be translated into
       performance standards (e.g., work units per person) unless the
       following conditions are fully satisfied:
 
          (1) The work performed is repetitive and capable of being done
       uniformly by all workers in the unit being measured.
 
          (2) Job content is constant throughout the appraisal period.
 
          (3) The method of operation, service and work unit produced is
       capable of being objectively, reliably, validly, and accurately
       measured.
 
          (4) The work units measured are equivalent.
 
    This proposal sets forth several requirements relating to the
 establishment of performance standards.  Because the proposal provides
 (1) that certain positions have the same critical elements, (2) that the
 Union will be allowed to have an observer present at the development and
 revision of performance standards, and (3) that production goals may not
 be translated into performance standards unless certain conditions are
 met;  it is not within the duty to bargain.  The first two provisions
 referred to are identical to Union Proposals 1 and 2 in American
 Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army
 Armor Center, Fort Knox, Kentucky, 15 FLRA No. 5 (1984).  In Fort Knox,
 those proposals were found to interfere with management's rights under
 section 7106(a)(2)(A) and (B) of the Statute to direct employees and to
 assign work.  With respect to a requirement that certain positions have
 identical critical elements, the Authority relied upon its reasoning set
 forth in 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), aff'd sub nom. AFGE
 Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, . . .
 U.S. . . . , 103 S.Ct. 2085 (1983);  and National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 769 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982)
 to find that such a requirement, by restricting management in its
 designation of critical elements, interfered with the agency's exercise
 of its management rights.  With regard to the proposal that the union be
 allowed to have an observer present in the development and revision of
 performance standard, the Authority found that such a proposal would
 effectively require that the union be allowed to be present at internal
 management deliberations regarding performance standards and, hence,
 would interfere with the decisionmaking process with respect to the
 agency's exercise of its right to direct employees and to assign work.
 The third provision cited above is identical to Union Proposal 2 in
 American Federation of Government Employees, AFL-CIO, Local 1708 and
 Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
 No. 1 (1984) which the Authority also found interfered with the agency's
 rights to direct employees and assign work under section 7106(a)(2)(A)
 and (B) of the Statute.  In so concluding the Authority found that
 proposing limitations on the inclusion of certain matters in performance
 standards was tantamount to seeking to negotiate the substance of
 performance standards.  Relying on reasons set forth in American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, Washington, D.C., 3 FLRA 784 (1980), the Authority
 found that proposals which restricted management in its establishment of
 performance standards were not within the duty to bargain.
 
    Based on the foregoing and the reasons set forth in Ft. Knox, Sunny
 Point and the cases cited therein, the Authority finds that Union
 Proposal 2 is not within the duty to bargain.  /6/
 
                             Union Proposal 3
 
    Appraisal Rating
 
          A. Employees' performance ratings will be a result of
       application of standards of performance to the employees'
       performance on critical and non-critical elements of the
       employees' positions.  The employee will be rated only on these
       elements.
 
          B.  The rating of elements will include designation of one of
       three ratings applied to each element identified on the rating
       form.  Upon completion of the appraisal of each element, an
       overall rating of total performance will be designated using one
       of four ratings.
 
          (1) Rating of individual elements.  The range of ratings for
       each individual element shall be:
 
          (a) Exceeds the standard
 
          (b) Meets the standard
 
          (c) Fails to meet the standard
 
          Ratings other than "Meets the Standard" must be documented in
       writing and placed in the employee's personnel file.
 
          (2) Overall Rating.  The range of rating for overall
       performance shall be one of the four ratings defined below.  The
       overall rating shall be arrived at by considering the total
       performance of the employee by using only the rating of the
       elements as prescribed in Section 4B(1) above. The ratings are:
 
          (a) Outstanding
 
          (b) Satisfactory
 
          (c) Marginal
 
          (d) Unacceptable
 
          A rating other than (b) satisfactory shall be documented in
       writing and made part of the employee's personnel file.  Each
       employee will be given a copy of the rating and any written
       documentation.
 
          C. Employees will be rated annually.  The rating will be
       completed within five (5) working days of the anniversary date.
 
    Insofar as this proposal seeks to negotiate 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, it is to
 the same material effect as 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).  In Department of Justice
 the Authority found that a proposal which sought to establish the number
 of such levels directly interfered with management's rights to direct
 employees and assign work pursuant to section 7106(a)(2)(A) and (B) of
 the Statute.  For the reasons fully expressed in Department of Justice,
 Union Proposal 3 is not within the duty to bargain.  /7/
 
                             Union Proposal 4
 
    Relation of Performance Appraisals System to Personnel Actions.
 
          A. Awards:  This appraisal system will be the only factor in
       determining awards and quality step increases based on sustained
       performance.  An outstanding rating will entitle an employee to an
       appropriate monetary award.
 
          B.  Periodic Within-Grade Increases:  This appraisal system
       shall be the only factor used in granting or denying within-grade
       increases.  An within-grade increase shall be granted for an
       overall rating of Satisfactory or better.
 
          C. Promotion:
 
          (1) Performance appraisal shall be one factor for evaluating
       employees for promotions.  An overall satisfactory performance of
       the established job elements at any grade level shall satisfy all
       requirements for within-grade promotions in that grade level, all
       requirements for noncompetitive promotion to the next higher grade
       level;  and any established qualifications requirements for
       competitive promotion to a position for the next higher grade
       level in the same occupational series (or in a closely related
       series).
 
          (2) Management shall assure that all employees are given the
       opportunity to obtain the knowledges and skills that each grade
       level requires to qualify for the next higher grade level in the
       same occupational series (or closely related series) and shall not
       establish special qualification requirements at such higher grade
       levels which cannot be satisfied by skills and knowledge normally
       acquired within the Agency at such lower grade level.
 
          D.  Other Personnel Action:  Where performance is a factor in
       any personnel action, this appraisal system shall be the sole
       procedure used.
 
    This proposal would, among other things, require that an appropriate
 monetary award be given to an employee who has received an outstanding
 performance rating.  In this regard, the proposal is materially
 identical to the first sentence of Union Proposal 2 in American
 Federation of Government Employees, AFL-CIO, Locals 112, 3269, 3383 and
 3831 and Department of Health and Human Services, Food and Drug
 Administration, Region V, 15 FLRA No. 171 (1984).  In that case the
 Authority relying on reasoning set forth in National Treasury Employees
 Union and Internal Revenue Service, 14 FLRA No. 77 (1984), appeal
 docketed sub nom. NTEU v. FLRA, No. 84-1292 (D.C. Cir. July 9, 1984)
 found that a proposal with such an effect directly interfered with the
 agency's right to direct employees and assign work pursuant to section
 7106(a)(2)(A) and (B) of the Statute.  In so finding, the Authority
 noted that an integral aspect of management's exercise of these rights
 was to prescribe the overall performance necessary for a reward for
 superior performance.  Thus, the Authority found that the determination
 as to whether particular performance warrants a reward is an exercise of
 the rights to direct employees and assign work.  Since Union Proposal 4,
 herein, would mandate the granting of a monetary award for the
 attainment of a specified performance rating the Authority finds for the
 reasons expressed in Internal Revenue Service that it interferes with
 the agency's exercise of those rights.
 
    Additionally this proposal would prohibit the establishment of
 qualifications requirements for promotion to higher grade levels which
 could not be satisfied by skills and knowledge normally acquired within
 the Agency at lower grade levels.  With respect to basic eligibility for
 promotion, the minimum qualification requirements for a particular
 position are those established by Office of Personnel Management (OPM),
 as supplemented by any "selective factors" added by the agency involved,
 i.e., knowledges, skills or abilities essential to successful
 performance in the job to be filled.  /8/ The Authority has found that
 the determination of "selective factors" is an integral aspect of the
 process of selection.  Hence, the right under section 7106(a)(2)(C) to
 make selections for appointments includes the discretion to make such
 determinations.  National Federation of Federal Employees, Local 1497
 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
 Base, Colorado, 11 FLRA No. 92 (1983) (Union Proposals 1 and 2).  Thus,
 insofar as Union Proposal 4, herein, would restrict that discretion, it
 conflicts with the Agency's right under section 7106(a)(2)(C).
 
    Based on the foregoing, Union Proposal 4 is not within the duty to
 bargain.
 
                             Union Proposal 5
 
    Procedures for Applying the Performance Appraisal System.
 
          A. At the beginning of the appraisal period, a copy of the
       appraisal form shall be given to each employee.  The form shall
       show the critical and non-critical elements and the corresponding
       performance standards.  An explanation will also be given of the
       three summary ratings and how they will be applied.  A written
       notice will be provided each employee stating that within-grade
       increase will be granted for an overall average appraisal rating
       of at least satisfactory except that a rating of unsatisfactory in
       critical element may be cause for denial of a within-grade
       increase.
 
    The proposal on its face provides that a rating of unsatisfactory in
 a critical element may be cause for denial of a within-grade increase.
 Thus, under the plain terms of the proposal, it would be possible to
 receive a within-grade increase in spite of an unsatisfactory rating in
 a critical element.  This conflicts with the terms of 5 CFR 430.202(e)
 which require the denial of a within-grade increase when performance in
 any critical element is below a minimum standard.  /9/ 5 CFR 430.202(e)
 constitutes a Government-wide regulation within the meaning of section
 7117(a)(1) of the Statute.  American Federation of State, County and
 Municipal Employees, AFL-CIO, Local 2027 and Action, Washington, D.C.,
 12 FLRA No. 128 (1983) (Union Proposal 2).  Inasmuch as the proposal is
 inconsistent with a Government-wide regulation, it is outside the duty
 to bargain.  /10/ See Action.
 
                             Union Proposal 6
 
          (7) No employee shall receive an annual performance appraisal
       that contains any lower rating on any element on the previous
       annual appraisal, except where the immediate supervisor has
       notified the employee during an earlier conference that the annual
       rating may be lowered and has promptly provided the employee all
       necessary training, counseling, and other assistance for the
       necessary improvement of that appraisal element by the time of the
       annual element.
 
    This proposal would require that, under certain circumstances, the
 Agency provide employees with "all necessary training." The Union does
 not explain what is intended by the term "all necessary training";
 however, by its plain terms it would encompass formal training.  The
 Authority has found that proposals which would require management to
 provide formal training to employees conflict with management's right to
 assign work under section 7106(a)(2)(B) of the Statute.  American
 Federation of Government Employees, AFL-CIO, Local 1923 and Department
 of Health and Human Services, Social Security Administration, 9 FLRA 899
 (1982) and cases cited therein.  Inasmuch as this proposal would require
 the assignment of formal training it is, for the reasons fully stated in
 Social Security Administration and the cases cited therein, not within
 the duty to bargain.
 
                             Union Proposal 7
 
    Unacceptable Performance
 
          If remedial action for unacceptable performance as defined in 5
       USC 4303 is necessary, that action shall be progressively applied
       as follows:
 
          A. Providing additional work experience or training
 
          B.  Reassignment to another appropriate position at the same
       grade level and in same commuting area
 
          C. Demotion by one grade
 
          D.  Termination
 
    This proposal is identical to Union Proposal 3 in American Federation
 of Government Employees, AFL-CIO, Local 1708 and Military Ocean
 Terminal, Sunny Point, Southport, North Carolina, 15 FLRA No. 1 (1984)
 which the Authority found to interfere with the exercise of management's
 rights, inasmuch as it conditioned the exercise of specified management
 rights on the prior exercise of others.  For the reasons set forth in
 Sunny Point, Union Proposal 7 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 insofar
 as it concerns Union Proposals 2 through 7 be, and it hereby is,
 dismissed.  IT IS FURTHER ORDERED that the Agency shall upon request (or
 as otherwise agreed to by the parties) bargain concerning Union Proposal
 1.  /11/
 
    Issued, Washington, D.C., December 13, 1984
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       /s/ Ronald W. Haughton
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency, citing several alleged procedural deficiencies in the
 Union's petition for review, moved that the petition be dismissed.
 Whatever procedural deficiencies which may have been present in the
 Union's initial filing have been corrected;  therefore, the Agency's
 motion is denied.  See American Federation of Government Employees,
 AFL-CIO, Local 51 and Department of the Treasury, Bureau of the Mint,
 U.S. Assay Office, San Francisco, California, 9 FLRA 809 (1982).
 
 
    /2/ See National Federation of Federal Employees, Local 1497 and
 Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
 Base, Colorado, 6 FLRA 9 (1981);  American Federation of Government
 Employees, Local 225 and U.S. Army Armament Research and Development
 Command, Dover, New Jersey, 11 FLRA No. 108 (1983).
 
 
    /3/ 5 U.S.C. 4302.
 
 
    /4/ 5 CFR 430.101 et seq. (Supp. 1984).
 
 
    /5/ American Federation of Government Employees, AFL-CIO, Local 32
 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980);
  American Federation of Government Employees, AFL-CIO, Local 3656 and
 Federal Trade Commission, Boston Regional Office, Massachusetts, 4 FLRA
 702 (1980).
 
 
    /6/ A proposal limited to requiring consistency between position
 descriptions and performance standards would not limit an agency's
 discretion with respect to the substance of performance standards and
 would be within the duty to bargain.  American Federation of Government
 Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New
 York Regional Office, 7 FLRA 571 (1982) (Union Proposal 1).  Proposals
 limited to requiring that performance standards be established in
 accordance with applicable laws would be within the duty to bargain.
 See American Federation of Government Employees, AFL-CIO, National
 Council of EEOC Locals and Equal Employment Opportunity Commission, 10
 FLRA 3 (1982), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir.
 1984).  A proposal limited to requiring negotiation over the manner in
 which employees would participate in the establishment of performance
 standards would be within the duty to bargain to the extent that it
 would not prevent an agency from establishing performance standards.
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769, 778 (1980), aff'd sub nom. NTEU v. FLRA,
 691 F.2d 553 (D.C. Cir. 1982).  A proposal limited to prohibiting secret
 studies bearing on performance standards, requiring that such studies be
 conducted on average workers under normal working conditions and
 requiring that information derived from such studies be provided the
 union within a specified time would be within the duty to bargain.
 American Federation of Government Employees, AFL-CIO, Local 3804 and
 Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
 217 (1981) (Union Proposals 4 and 5).
 
 
    /7/ A proposal limited to requiring that an agency give notice to
 employees as to which job elements will be subject to performance
 appraisal and, of those elements, which ones are deemed "critical" or
 "non-critical" and to prescribing procedural time frames for appraisal
 of employee performance would be within the duty to bargain.  American
 Federation of Government Employees, AFL-CIO, Local 3028 and Department
 of Health and Human Services, Public Health Service, Alaska Area Native
 Health Service, 13 FLRA No. 112 (1984) (Union Proposals 1 and 4).
 
 
    /8/