17:0786(108)NG - AFSCME Locals 2477 and 2910 and Library of Congress -- 1985 FLRAdec NG

 17 FLRA No. 108
 
 AMERICAN FEDERATION OF STATE, 
 COUNTY AND MUNICIPAL EMPLOYEES,
 AFL-CIO, LOCALS 2477 and 2910 
 Union 
 
 and 
 
 LIBRARY OF CONGRESS 
 Agency
 
                                            Case No. O-NG-618
 
                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 the negotiability of three Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Section 2D-- Any and all standards used by the Library to
       evaluate the performance of employees shall be fair and equitable
       and shall be implemented and administered in such a way that every
       employee can reasonably be expected to obtain the standard.
 
    In American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980),
 based upon the record before it in that case, particularly the Union's
 statement as to the intent of its proposal, the Authority interpreted a
 proposal requiring that performance standards be fair and equitable as
 providing a criterion for the application to employees of performance
 standards established by management.  The Authority held that such a
 general, nonquantitative requirement by which the application of
 performance standards may subsequently be evaluated in a grievance by an
 employee who believes that he or she has been adversely affected thereby
 did not directly interfere with management's right, under section
 7106(a)(2)(A) and (B) of the Statute, to establish performance standards
 and, thus, was within the duty to bargain.
 
    In the present case, the Union explicitly interprets its proposal,
 like the proposal in the Office of Personnel Management case, as
 prescribing criteria only for reviewing the application of a performance
 standard to an employee by management;  the proposal would not authorize
 a grievance over the standard itself.  /1/ Similarly, as to that portion
 of the proposal which requires that performance standards be so
 administered that each employee can reasonably be expected to achieve
 the standards, the Union explicitly states that the proposal does not
 require that a standard be established at any given level.  /2/ Rather,
 the proposal only requires that management's implementation of the
 standard not deprive an employee of a reasonable opportunity to attain
 the standard.  /3/ Under this interpretation, which is adopted for the
 purpose of this decision, the proposal would not require the Agency to
 establish a particular performance standard, nor would it permit
 arbitral review of the standard itself, or otherwise affect the quality,
 quantity, or timeliness of work production.  Cf. American Federation of
 Government Employees, AFL-CIO, Local 1968 and Department of
 Transportation, Saint Lawrence Seaway Development Corporation, Massena,
 New York, 5 FLRA 70, 79-80 (1981), 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, 461 U.S. 926,
 103 S.Ct. 2085 (1983), wherein the Authority held that proposals which
 subject the exercise of management's rights to identify critical
 elements and establish performance standards to the negotiated grievance
 procedure are nonnegotiable because they would permit arbitrators to
 overturn an agency's determination of critical elements and performance
 standards and render awards which would require the agency to use
 different elements and standards.  In this connection, under the
 proposal in dispute herein, the arbitrator would only determine whether
 an employee had had a reasonable opportunity to achieve the standard
 established by the Agency, i.e., whether the application of the standard
 was fair and equitable, but would not determine whether the standard
 itself was fair and equitable.  See Union Proposal 5 in Office of
 Personnel Management, at 790-94 and subsection 4 of Union Proposal 4 in
 Saint Lawrence Seaway Development Corporation, at 80.
 
    In this regard, the proposal at issue herein is distinguishable from
 Union Proposal 3 in American Federation of Government Employees, Local
 32 and Office of Personnel Management, 16 FLRA No. 127 (1984).  The
 proposal at issue in that case, both by its language and by the union's
 stated intent, required that performance standards themselves be fair
 and equitable and, unlike the proposal at issue herein, was not
 restricted to the application of those standards.  Thus, the Authority
 found that the proposal was intended to prescribe limitations on the
 content of performance standards and, as such, authorized arbitrators to
 substitute their judgment as to the proper content of those standards
 for that of the agency.  Based upon its decision in Saint Lawrence
 Seaway Development Corporation, therefore, the Authority held that the
 proposal was nonnegotiable under section 7106(a)(2)(A) and (B) of the
 Statute.  However, as indicated above, the proposal at issue herein,
 like Union Proposal 5 in Office of Personnel Management, 3 FLRA 784,
 790-94 and subsection 4 of Union Proposal 4 in Saint Lawrence Seaway
 Development Corporation, 5 FLRA 70, 80, would not authorize an
 arbitrator to review the Agency's determination of its performance
 standards, but only to consider whether the standards which had been
 established were applied in a fair and equitable manner.
 
    Accordingly, for the reasons set forth above, in particular the
 Authority's dispositions as to Union Proposal 5 in Office of Personnel
 Management, 3 FLRA 284, 790-94 and subsection 4 of Union Proposal 4 in
 Saint Lawrence Seaway Development Corporation, Union Proposal 1 herein
 is within the Agency's duty to bargain under the Statute.
 
                             Union Proposal 2
 
          Section 6B-- An employee given an "Outstanding" rating shall
       receive an incentive award.
 
                             Union Proposal 3
 
          Section 6D-- An employee whose performance substantially
       exceeds normal requirements in one or more of the most important
       job elements will be given a special achievement award under 5 USC
       45.
 
    Union Proposals 2 and 3 prescribe the levels of achievement under the
 Agency's performance appraisal system which are sufficient to entitle an
 employee to an incentive award.  In thus establishing the criteria
 governing the Agency's decision to reward employee performance, these
 proposals are substantially to the same effect as Union Proposals 5 and
 6 in National Treasury Employees Union and Internal Revenue Service, 14
 FLRA 463, 469-471 (1984) (Member Haughton dissenting), appeal docketed
 sub nom. National Treasury Employees Union v. Federal Labor Relations
 Authority, No. 84-1292 (D.C. Cir. July 9, 1984).  In that case, the
 Authority, in considering the negotiability of those proposals, which
 concerned incentive pay, stated as follows:
 
          . . . (A)n integral aspect of management's exercise of its
       rights to assign work and direct employees is to establish a
       system of rewards and sanctions for employee performance,
       including the provision of incentives to encourage and reward
       superior performance.  The nature of the incentive (e.g., monetary
       or nonmonetary), the amount of a monetary incentive, and the
       circumstances under which an incentive may be awarded are
       essential components of management's judgment.  That is, they
       directly relate to the potential success of the incentive in
       motivating the performance of particular job tasks and, hence, to
       some extent determine the priorities for accomplishing the
       agency's work.
 
 The Authority determined, therefore, that because those proposals
 "prescribed" the amount of the award of incentive pay and the
 circumstances under which it would be paid, the proposals directly
 interfered with management's rights to direct employees and assign work
 under section 7106(a)(2)(A) and (B) of the Statute and were outside the
 duty to bargain.  In a similar manner, Union Proposals 2 and 3 herein
 are determinative of the conditions under which the Agency will grant an
 incentive award, i.e., the attainment of a stated level of achievement
 or performance rating.  Thus, for the reasons more fully set forth in
 the Internal Revenue Service case, Union Proposals 2 and 3 directly
 interfere with management's rights, under section 7106(a)(2)(A) and (B),
 to direct employees and assign work through the establishment of rewards
 for employee performance /4/ and, thus, are outside the duty to bargain.
  /5/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Union Proposals 2 and 3 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.  /6/ Issued,
 Washington, D.C., May 7, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Union Reply Brief at 5.
 
 
    /2/ Id. at 3-4.
 
 
    /3/ Id.
 
 
    /4/ The Union explicitly concedes that the proposals concern rewards
 for employee performance.  Union Reply Brief at 8.
 
 
    /5/ In view of the Authority's decision herein, it is unnecessary to
 consider the Agency's arguments that the proposals are outside the duty
 to bargain.
 
 
    /6/ In deciding that the proposal is within the duty to bargain, the
 Authority makes no judgment as to its merits.