21:1051(123)NG - NTEU and Dept. of the Treasury -- 1986 FLRAdec NG
[ v21 p1051 ]
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 poor planning or management.