[ v17 p786 ]
17:0786(108)NG
The decision of the Authority follows:
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.