21:1051(123)NG - NTEU and Dept. of the Treasury -- 1986 FLRAdec NG



[ v21 p1051 ]
21:1051(123)NG
The decision of the Authority follows:


 21 FLRA No. 123
 
 NATIONAL TREASURY EMPLOYEES 
 UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY
 Agency
 
                                            Case No. 0-NG-1170
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    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 nine provisions of an agreement which
 were disapproved by the Agency head pursuant to section 7114(c) of the
 Statute.  /*/
 
                          II.  Procedural Issues
 
                                Provision 1
 
    Article 7, Section 2G:
 
          The Employer shall provide the employee with a prompt written
       final decision.  When a negative determination is sustained after
       reconsideration, an employee shall be informed in writing of the
       reasons for the decision and of his/her right to submit the
       decision, with the consent of the Union, to binding arbitration.
 
    The provision quoted above submitted in the Union's petition for
 review is not contended by the Agency to be outside the duty to bargain
 under the Statute.  Rather, it appears from the record that the Agency's
 basis for holding a provision originally executed by the local parties
 nonnegotiable was an additional phrase which is not contained in the
 above provision.  The Union, therefore, has not appealed the Agency
 head's disapproval of the original provision.  Since Provision 1 as
 submitted in the petition for review has never been alleged by the
 Agency to be nonnegotiable, the Authority concludes that the petition
 for review as to the issue is moot and will not be considered further.
 See American Federation of Government Employees, AFL-CIO, Local 32 and
 U.S. Office of Personnel Management, 8 FLRA 420 (1982) (Proposal 2) and
 case cited therein.
 
                      III.  Provisions 2, 3, 4, and 5
 
    Article 8, Section 5(A):
 
          Immediate supervisors, at least once a year, must provide each
       employee with an appraisal of their performance on ATF F 2430.7,
       Performance Appraisal for Bargaining Unit Employees, and on ATF F
       2430.8, Performance Appraisal for Bargaining Unit Employees --
       Continuation Sheet.  In addition, supervisors, during the course
       of the year, must advise employees as to their performance and
       must document such counselling sessions.  (Only the underlined
       portion of the provision is in dispute.)
 
    Article 8, Section 6:
 
          If the immediate supervisor is an acting supervisor or a
       supervisor who has not been supervising the employee for at least
       ninety (90) days, the appraisal will be made by the next higher
       level supervisor.  Employees in new positions will be evaluated
       ninety (90) days after entering the new positions, regardless of
       the effective date of their performance appraisal.  (Only the
       underlined portions of the provision are in dispute.)
 
    Article 8, Section 7:
 
          The following provisions will apply to employees on detail:
 
          1.  When an employee has been on detail for less than three (3)
       months at the time a performance appraisal due date occurs, the
       employee's regular supervisor will prepare the official
       performance appraisal.
 
          2.  When the employee has been on detail for more than three
       (3) months, the supervisor controlling the detailed employee's
       activities will prepare a written performance appraisal at the
       time of the performance appraisal due date and state whether the
       employee's work performance is or is not fully acceptable.
 
          The written statement will be forwarded to the regular
       supervisor, who will endorse or supplement the statement and issue
       the rating.
 
          3.  When the employee has been on detail for the entire
       appraisal period, the written performance appraisal of the
       supervisor controlling the activities of the detailed employee
       establishes the performance appraisal.  This appraisal is used by
       the regular supervisor to certify that the employee has been rated
       for the specific appraisal period.
 
          4.  Where it is known that the detail is for the entire
       appraisal period, the supervisor of the position to which an
       employee is detailed will verify whether standards of performance
       and critical elements have been established for the position to
       which detailed.  If standards and critical elements exist for
       either the position to which detailed or for identical positions
       within the Bureau, those will be applied in evaluating the
       detailee's performance.  The supervisor will initially explain the
       standards of performance and critical elements of the position to
       the detailee.  In situations involving details to positions for
       which no standards of performance or critical elements exists, the
       supervisor evaluating the employee will follow the procedures in
       this article.  (Only the underlined portions of the provision are
       in dispute.)
 
    Article 8, Section 8(C):
 
          Prior to issuing a notice of proposed action based on
       unacceptable performance, the Employer, generally through the
       immediate supervisor, will meet with the employee, fully discuss
       the performance problems, and provide him/her the following in
       writing:
 
          1.  identification of the critical elements and performance
       standards for which the performance is unacceptable;
 
          2.  advice as to what the employee must do to bring the
       performance above the unacceptable level;
 
          3.  notification that the employee will be afforded a
       reasonable period of time (specified in calendar days) in which to
       bring performance above the unacceptable level,
 
          4.  identification of training and/or developmental activities
       which would assist the employer in attaining performance above the
       unacceptable performance level, and a description of what the
       Employer will do to assist the employee to improve the
       unacceptable performance during the opportunity period.  (Only the
       underlined portion of the provision is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that by specifying which supervisor will complete
 an annual appraisal, Provisions 2, 3, 4, and 5 impermissibly interfere
 with its management right under section 7106(a)(2)(B) of the Statute.
 The Union maintains that the above provisions are negotiable because:
 Provision 2 provides each employee with an appraisal at least once a
 year;  the intent of Provision 3 is clear on its face;  Provision 4
 insures the parties that the performance of employees on details will be
 evaluated by people who are in a position to observe the performance;
 and Provision 5 requires the Agency to meet with an employee who is
 having performance problems and provide a written document containing
 the items listed in subsections 1-4.
 
                        B.  Analysis and Conclusion
 
    The disputed portions of Provisions 2, 3, 4, and 5 seek to designate
 a particular individual within the Agency who would evaluate an
 employee's work performance.  The Authority has consistently held that
 such proposals are inconsistent with the agency's right to assign work
 under section 7106(a)(2)(B) of the Statute.  National Federation of
 Federal Employees, Local 943, and Department of the Air Force, Keesler
 Air Force Base, Mississippi, 16 FLRA 313, 316 (1984) citing 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) and Congressional Research Employees Association and the
 Library of Congress, 3 FLRA 737 (1980).  Therefore, for the reasons more
 fully set forth in Keesler Air Force Base and the cases cited therein,
 Provisions 2, 3, 4 and 5 are not within the duty to bargain under the
 Statute because they violate the Agency's right to assign work under
 section 7106(a)(2)(B).
 
                             IV.  Provision 6
 
    Article 8, Section 9:
 
          In appraising employees on ATF Form 2430.7, supervisors must:
 
          A.  Describe actual performance for each critical element in
       terms of a comparison between actual performance and the
       performance standards.
 
          B.  Assign rating for each element of Outstanding, Commendable,
       Fully Acceptable, Partially Acceptable, and Unacceptable.  In
       assigning these ratings, supervisors should take into account the
       following:
 
          1.  A rating of Outstanding (O) means that the actual
       performance meets the level of outstanding performance specified
       for that job.
 
          2.  A rating of Commendable (C) means that the actual
       performance exceeds the fully acceptable standard of performance
       in the job element but the performance does not meet the standard
       established for outstanding performance.
 
          3.  A rating of Fully Acceptable (FA) means that the actual
       performance of the employee in all respects meets the level of
       performance required under the fully acceptable standard for that
       element.
 
          4.  A rating of Partially Acceptable (PA) means that employee's
       actual performance does meet the requirements of the fully
       acceptable standard but, similarly, does not constitute
       unacceptable as described in the unacceptable performance
       standard.
 
          5.  A rating of Unacceptable (U) means that the employee's
       actual performance is at or below the performance described in the
       unacceptable performance standard.
 
          C.  Assign a rating for overall performance of critical
       elements based on the following criteria:
 
          1.  Outstanding (O).  Indicates performance substantially
       exceeds fully acceptable performance in all of the critical
       elements.
 
          2.  Commendable (C).  Indicates performance that exceeds fully
       acceptable, but which is below the outstanding level, in all of
       the critical elements.
 
          3.  Fully Acceptable (FA).  Indicates performance which is
       fully successfully and meets the acceptable level of competence in
       all critical elements.
 
          4.  Partially Acceptable (PA).  Indicates performance in one
       critical element falls below the fully acceptable level but does
       not constitute unacceptable performance.  An overall rating of
       partially acceptable shall be a basis for denial of a within-grade
       increase.
 
          5.  Unacceptable (U).  Indicates performance which fails to
       meet the established performance standard in one or more critical
       elements.  Unacceptable performance shall be the basis for denial
       of a within-grade increase, and may be a basis for reassignment,
       demotion, or removal from the Bureau.
 
                       A.  Positions of the Parties
 
    The Agency asserts that the provision is nonnegotiable because it
 interferes with its rights to direct employees and assign work under
 section 7106(a)(2)(A) and (B) of the Statute.  The Union contends that
 the provision is negotiable because it only requires the Agency to
 provide certain information on the employees' appraisal forms.
 
                        B.  Analysis and Conclusion
 
    Provision 6 would establish the number of rating levels for the
 appraisal of an employee's performance in each critical element and also
 for rating overall performance.  It has essentially the same effect as
 the Union Proposal in American Federation of State, County and Municipal
 Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA
 578 (1984), which also established the number of rating levels for the
 appraisal of an employee's performance in each critical element and for
 rating overall performance and therefore violated the agency's right to
 direct employees and to assign work under section 7106(a)(2)(A) and (B)
 of the Statute.  For the reasons more fully set forth in U.S. Department
 of Justice, therefore, Provision 6 is outside the duty to bargain
 because it violates section 7106(a)(2)(A) and (B) of the Statute.
 
                              V.  Provision 7
 
    Article 9, Section 4A:
 
          The employer will appoint a ranking panel consisting of three
       voting members, all of whom must be at or above the grade of the
       position to be filled.  The selecting official may not serve as a
       member of the panel.  (Only the underlined portion of the
       provision is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that the provision interferes with its right to
 assign work by placing a restriction on the selecting official.  The
 Union contends that based on the explicit language of the provision, it
 is within the duty to bargain under the Statute.
 
                        B.  Analysis and Conclusion
 
    The provision would preclude the Agency from using certain
 supervisory personnel, i.e., the selecting official, on a ranking panel
 which conducts an evaluation of employees.  As was stated previously
 with reference to Provisions 2-5, the Authority has held in Kessler Air
 Force Base, 16 FLRA 313 (1984), that proposals which designate a
 particular individual within the agency who would evaluate an employee's
 work performance are inconsistent with the agency's right to assign work
 under section 7106(a)(2)(B) of the Statute.  Similarly, the Authority
 has consistently held that provisions which restrict management in the
 designation of particular employees to perform particular duties are
 likewise violative of management's right to assign work.  See, e.g.,
 American Federation of Government Employees, Local 32, AFL-CIO and
 Office of Personnel Management, 19 FLRA No. 9 (1985) (Union Proposal 5).
  The Authority finds that Provision 7 constitutes an improper
 infringement on the Agency's right to assign work under section
 7106(a)(2)(B) because the provision would restrict the Agency in
 designating certain supervisory personnel to evaluate employees.
 Consequently, Provision 7 is not within the duty to bargain.
 
                             VI.  Provision 8
 
    Article 10, Section 1:
 
          The Employer agrees that an employee who is assigned to a
       position of higher grade for more than thirty (30) consecutive
       calendar days will be temporarily promoted and receive the rate of
       pay for the position to which he/she is temporarily promoted.  The
       Employer further agrees to refrain from rotating assignments of
       employees solely to avoid compensation at the higher level.  (Only
       the underlined portion of the provision is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that this provision violates its right to assign
 employees by preventing management from freely assigning employees to
 details.  The Union maintains that the provision would only prohibit
 rotating assignments solely to avoid compensation at the higher grade
 level and therefore is within the duty to bargain under the Statute.
 
                        B.  Analysis and Conclusion
 
    This provision would preclude the Agency from rotating assignments of
 employees solely to avoid compensation at the higher level.  It is to
 the same effect as Provision 2 in National Treasury Employees Union and
 Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984)
 which also precluded the agency from rotating assignments of employees
 solely to avoid compensation at the higher level.  The Authority
 determined that the provision violated the agency's right to assign
 employees under section 7106(a)(2)(A) of the Statute because, by barring
 management from rotating assignments for the purpose of avoiding the
 temporary promotion of employees, it would substantively restrict
 management's exercise of its right to assign those employees.
 Therefore, for the reasons more fully set forth in Internal Revenue
 Service, Provision 8 is also outside the duty to bargain under section
 7106(a)(2)(A) of the Statute.
 
                             VII.  Provision 9
 
    Article 9, Section 2:
 
          The detailing of personnel to lower-graded positions is
       considered to be inconsistent with sound planning and management
       and will be kept to an absolute minimum.  However, the Employer
       may use details under circumstances such as the following:
 
          1.  when a temporary shortage of personnel exists;
 
          2.  where an exceptional volume of work suddenly develops and
       seriously interrupts the work schedule;
 
          3.  to fill temporarily the positions of employees on extended
       leave with or without pay;  or
 
          4.  other conditions of a special and temporary nature.
 
                       A.  Positions of the Parties
 
    The Agency asserts that the provision, by placing limitations on the
 Agency's decision to detail employees, is inconsistent with its right to
 assign employees.  The Union contends that the provision is within the
 duty to bargain because it contains examples of occasions where
 detailing an employee to a lower graded position would not evidence