25:0016(2)NG - AFGE Local 1760 and HHS, SSA, Baltimore, MD -- 1987 FLRAdec NG



[ v25 p16 ]
25:0016(2)NG
The decision of the Authority follows:


 25 FLRA No. 2
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1760
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION 
 BALTIMORE, MARYLAND
 Agency
 
                                            Case No. 0-NG-445
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    The petition for review in this case comes before the Authority
 because of a negotiability appeal filed under section 7105(a)(2)(E) of
 the Federal Service Labor-management Relations Statute (the Statute).
 It raises issues concerning the negotiability of four Union Proposals
 relating to the Agency's auditing procedures for bargaining unit
 employees who are Inquiry and Expediting (I&E) Specialists.
 
                           II.  Union Proposal 1
 
          A.  The parties agree that the review of the I&E Specialists is
       to assess and evaluate the effectiveness of employee training and
       detect areas where training is lacking or deficient.
 
          B.  The employer agrees that once a lack of training or an area
       of deficiency is detected an employee will be provided with the
       training necessary to sharpen his skills.
 
          C.  (See discussion on pages 11 to 16.)
 
    A.  Positions of the Parties
 
    With reference to Proposal 1A, the Agency's sole contention is that
 the proposal addresses aspects of working conditions that will not be
 changed by the Agency's decision to audit the positions of Inquiry and
 Expediting Specialists and, therefore, there is no obligation to
 bargain.  With reference to Proposal 1B, the Agency claims it is
 nonnegotiable because it infringes on its right to assign work and/or to
 direct employees under section 7106(a)(2) of the Statute.  In support of
 its argument, the Agency asserts that since both classroom training and
 on-the-job training constitute part of the work of the Agency, this
 proposal would eliminate the discretion inherent in the right to assign
 work under section 7106(a)(2)(B) of the Statute by requiring management
 to assign training (work) to certain employees.
 
    As to Proposal 1A, the Union contends that the proposal merely
 affirms that the purpose of the review of the I&E Specialist is to
 measure the effieiency of employee training and to ascertain those areas
 where training is either non-existent or ineffective.  With reference to
 Proposal 1B, the Union argued that it constitutes an "appropriate
 arrangement" within the meaning of section 7106(b)(3) of the Statute for
 employees adversely affected by the exercise of management's rights.
 The Union refers to the decision of the U.S. Court of Appeals for the
 District of Columbia Circuit in American Federation of Government
 Employees, Local 2782 v. Federal Labor Relations Authority, 702 F. 2d
 1183 (D.C. Cir. 1983), reversing and remanding American Federation of
 Government Employees, AFL-CIO, Local 2782 and Department of Commerce,
 Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
 
    B.  Analysis and Conclusions
 
    Proposal 1 provides as follows:  The purpose of the Agency's auditing
 process is to assess and evaluate employee training and to detect areas
 where training is lacking or deficient (Part 1A), and training in the
 area of deficiency will be provided (Part 1B).
 
    As to Proposal 1A, the Agency makes no argument that the proposal is
 inconsistent with law or regulation.  Rather, it argues only that there
 is no change in working conditions as to give rise to the duty to
 bargain.  The question raised by the Agency regarding its duty to
 bargain cannot be resolved in this decision.  The record in this case
 fails to provide any basis for substantiating the Agency's assertions.
 Further, to the extent that there are factual issues in dispute between
 the parties concerning the duty to bargain in the specific circumstances
 of this case, these issues may be raised in other appropriate
 proceedings.  See, for example, American Federation of Government
 Employees, AFL-CIO, Local 2736 and Department of the Air Force,
 Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force
 Base, Michigan, 14 FLRA 302 at 306, n. 6 (1984).  Consequently, since
 the Agency does not contend that the proposal is nonnegotiable and since
 the explicit language of the porposal and the Union's statements of
 intent do not indicate that the proposal is outside the duty to bargain
 under the Statute, the Authority concludes that Proposal 1A is within
 the duty to bargain under the Statute.
 
    Turning now to Proposal 1B, such proposal would require the Agency to
 provide training for employees whose performance appraisal identified
 certain performance deficiencies.  The Agency contends that the proposal
 interferes with its management rights under section 7106(a) of the
 Statute.  The Union claims that the proposal is an "appropriate
 arrangement" under section 7106(b)(3) of the Statute for employees
 adversely affected by the exercise of management's rights.  In National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986), the Authority adopted the approach
 of the U.S. Court of Appeals for the District of Columbia Circuit for
 resolving questions as to the negotiability of proposed "appropriate
 arrangements" under section 7106(b)(3) of the Statute.  Specifically, we
 set out certain factors to be considered in deciding whether a proposal
 is negotiable under section 7106(b)(3).
 
    The first question is whether Proposal 1B is an "arrangement" for
 employees adversely affected by the exercise of management rights.
 Pursuant to its management rights to assign work and direct employees,
 management evaluates employee performance against the performance
 standards established for each critical element.  American Federation of
 Government Employees, Local 1760, AFL-CIO and Department of Health and
 Human Services, Social Secruity Administration, 15 FLRA 909, 915 (1984).
  Under Chapter 43 of title 5 of the U.S. Code, when an employee is
 determined to be performing at a less than satisfactory level, that
 employee is potentially subject to some remedial action, which may
 include demotion, reassignment, or removal.  The proposal attempts to
 lessen the effect of that remedial action by requiring training in lieu
 of any other appropriate action.  We find, therefore, that the proposal
 is intended as an "arrangement" to ameliorate the adverse affects of the
 exercise of management's right to evaluate employees.
 
    The issue then becomes whether Proposal 1B excessively interferes
 with management's rights under section 7106(a) of the Statute.  Because
 the proposal requires training and precludes reassignment or other
 disciplinary actions, it directly interferes with management rights.
 See American Federation of Government Employees, AFL-CIO, Local 1708 and
 Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
 3 (1984) (Union Proposal 3).  As to whether that interference is so
 excessive as to render the proposal nonnegotiable, the Authority held in
 Kansas Army National Guard, 21 FLRA No.4, that the determination of what
 is an appropriate arrangement, in essence, involves weighing the
 benefits to employees of the proposed arrangement against the effect on
 management rights.  In this case, while affected employees may benefit
 from the training required by the proposal, the need for that training
 is due to employee "fault", i.e., performance deficiency.  See National
 Labor Relations Board Union and National Labor Relations Board, Office
 of the General Counsel, 18 FLRA No. 42 (1985), cited in Kansas Army
 National Guard, 21 FLRA No. 4 at p. 9 of decision.  The employee
 interests at stake in the proposal are therefore not entitled to great
 weight and are not sufficient to justify depriving management of all
 descretion as to possible reassingment, demotion, or removal.  The
 proposal is not limited to providing training for those employees who,
 in management's judgment, might profit from training.  Rather, it would
 mandate training for employees found deficient without regard to the
 nature and extent of the deficiency.  As a result, the proposal would
 require training where, in management's judgement, more serious action
 may be warranted.  For example, the proposal would require training even
 where, under Chapter 43 of title 5, management would be authorized to
 remove an employee for unsatisfactory performance in a single critical
 element.  By mandating training and foreclosing the exercise of other
 management rights, the proposal excessively interferes with management
 rights to assign employees, to reduce employees in grade, or to remove
 employees.  Section 7106(b)(3) does not justify completely removing
 management's ability to exercise other rights where they are warranted
 so as to benefit employees who have failed to perform acceptably.
 
    Consequently, Proposal 1B excessively interferes with management's
 rights under section 7106(a) and does not constitute an appropriate
 arrangement for employees adversely affected by the exercise of
 management's rights within the meaning of section 7106(b)(3) of the
 Statute.  It is therefore outside the duty to bargain under the Statute.
 
                          III.  Union Proposal 1C
 
    The FLRA Members disagree over the negotiability of this proposal.
 The majority opinion is on pages 11 and 12 of the decision.  Chairman
 Calhoun's dissent is on pages 14 to 16.
 
                           IV.  Union Proposal 2
 
          A payment deficiency, for the purpose of this audit, is defined
       as any error that delays or interrupts the payment of benefits or
       causes an improper payment to be made.
 
    A.  Positions of the Parties
 
    The Agency contends that the proposal's definition of the term
 "payment deficiency" violates its management right to determine the
 technology, methods and means of performing its work under section
 7106(b)(1).
 
    The Union contends that the definition of a payment deficiency is a
 procedure related to the application of a performance standard and not
 an infringement on the Agency's management rights.
 
    B.  Analysis and Conclusion
 
    Under existing Authority precedent, we find the proposal
 nonnegotiable for reasons other than those alleged by the Agency.  The
 Authority has previously determined that an agency's rights to "direct"
 and "assign work" to employees under section 7106(a)(2)(A) and (B) of
 the Statute encompass the ability to determine the quantity, quality and
 timeliness of employees' work and the aspects of employees' work which
 will be evaluated in a performance appraisal.  National Treasury
 Employees Union and Department of the Treasury, Bureau of the Public
 Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees
 Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).  This proposal defines
 what will be considered a payment deficiency for purposes of performance
 appraisal.  In American Federation of Government Employees, Local 1760,
 AFL-CIO and Department of Health and Human Services, Social Security
 Administration, 15 FLRA 909 (1984), the Authority held that the first
 group of six proposals defined errors and thus prohibited management
 from considering certain mistakes in evaluating the accuracy of work.
 The proposals were therefore found to be inconsistent with management's
 rights to direct employees and assign work.  This proposal similarly
 violates those management rights.  Thus, the Authority concludes that
 the proposal is outside the duty to bargain.  See also American
 Federation of Government Employees, Local 1822, AFL-CIO and Veterans
 Administration Medical Center, Waco, Texas, 9 FLRA 709 (1982), in which
 the Authority found a proposed definition of an error violated
 management's right to assign work under section 7106(a)(2)(B) and to the
 extent the proposal had the effect of modifying the substantive criteria
 for taking action against an employee it also violated management's
 right to discipline employees under 7106(a)(2)(A) of the Statute.
 
    As to the Agency's allegation that the proposal is outside the duty
 to bargain under section 7106(b)(1), the Agency has not shown the
 proposal's relationship to the methods, means, and technology of the
 accomplishment of the Agency's work mission.  The Agency's contention
 that the proposal conflicts with section 7106(b)(1) of the Statute has
 not been supported and cannot be sustained.
 
                           V.  Union Proposal 3
 
          A.  Prior to the first audit of each year, the managers will
       meet with their employees and their union representative and
       relate what is minimally acceptable in terms of maintaining a
       satisfactory rating and, in addition, what is required to sustain
       an acceptable level of competence.
 
          B.  The employer agrees that such standards shall be fair and
       equitable and shall be arrived at in such a fashion as to be
       attainable by average employees.
 
          C.  (See discussion on pages 12 to 16.)
 
          D.  The parties agree that any disagreement as to the fairness
       and equity of such standards will be submitted to an arbitrator
       for resolution.
 
    A.  Positions of the Parties
 
    The Agency's sole contention is that the proposal addresses aspects
 of working conditions that will not be changed by the Agency's decision
 to audit the positions of Inquiry and Expediting Specialists.  The Union
 contends that the proposal does not directly and integrally impact on
 the Agency's exercise of its management rights.
 
    B.  Analysis and Conclusion
 
    Although the Agency has not alleged that the proposal itself is
 nonnegotiable, we find paragraphs B and D of the proposal nonnegotiable
 under existing Authority precedent.  Paragraphs B and D of the proposal
 on their face deal with the contents of performance standards themselves
 and arbitral review of those standards.
 
    The Authority has consistently found proposals which substantively
 restrict management in its establishment of performance standards to be
 outside the duty to bargain as interfering with management's rights to
 assign work and direct employees under section 7106(a)(2)(A) and (B) of
 the Statute.  See, for example, Department of the Treasury, Bureau of
 the Public Debt, 3 FLRA 769.  The Authority has also found that a
 proposal which would have as its sole effect the subjecting of
 management's determination concerning the content of performance
 standards to the grievance procedure and arbitral review similarly
 constituted a substantive interference with management's rights.
 American Federation of Government Employees, AFL-CIO, Local 1968 and
 Department of Transportation, Sanit Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA 70 (1981) (Union Proposal 4),
 aff'd sub nom. American Federation of Government Employees, Local 1968
 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 2085
 (1983).  Moreover, paragraphs B and D of this proposal are to the same
 effect as the disputed portion of a porposal found to be outside the
 duty to bargain in American Federation of Government Employees, Local 32
 and Office of Personnel Management, 16 FLRA 948 (1984) (Union Proposal
 3).  In that decision the Authority held that the disputed portion of a
 proposal which provided "performance standards . . . must be fair and
 equitable" violated management's rights to assign work and direct
 employees pursuant to section 7106(a)(2)(A) and (B) of the Statute.
 Specifically, the Authority noted that a proposal limited to
 establishing a general nonquantitative requirement by which the
 application of performance standards could subsequently be evaluated in
 a grievance would be a negotiable appropriate arrangement pursuant to
 section 7106(b)(3) of the Statute under the holding in American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Union
 Proposal 5).  However, it distinguished the proposal in the earlier OPM
 case from the proposal in the later case which was specifically directed
 at the content of the performance standards themselves and would have
 the effect of permitting arbitrators to substitute their judgment as to
 the content of performance standards for that of the agency.
 Consequently, based on Office of Personnel Management, 16 FLRA 948, and
 the cases cited there, the Authority concludes that paragraphs B and D
 of Proposal 3 here are outside the duty to bargain.
 
    Parahraph A of the proposal merely calls for the Agency to provide
 the Union with information with respect to the performance standards and
 ratings.  The clear language of paragraph A in no way restricts
 management in the exercise of its rights under section 7106(a) of the
 Statute.  Moreover, the Agency does not assert that paragraph A of the
 proposal in any way infringes on its management rights.  Thus, the
 Authority concludes that paragraph A of Proposal 3 is within the duty to
 bargain under the Statute.  See American Federation of Government
 Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
 Corporation, Chicago Region, Illinois 7FLRA 217 (1981) (Proposal 2 and
 5).
 
                          VI.  Union Proposal 3C
 
    The FLRA Members disagree over the negotiability of this proposal.
 The majority opinion is on pages 12 and 13 of the decision;  Chairman
 Calhoun's dissent is on pages 14 to 16.
 
                          VII.  Union Proposal 4
 
          A.  A committee, consisting of four technically proficient
       employees, two appointed by management and two by the union will
       review all errors recorded by the reviewer that are questioned by
       the employee.
 
          B.  The committee will determine, by majority vote, if the
       error is the responsibility of the employee.  If the committee
       determines it is not, then the subject error will be stricken from
       the report and the accuracy rates adjusted accordingly (Clause 8).
 
    A.  Positions of the Parties
 
    The Agency contends that the proposal is nonnegotiable because it
 interferes with management rights to assign work and employees under
 section 7106(a)(2)(A) and (B) and to determine the methods and means of
 performing work under section 7106(b)(1).  The Union argues that the
 proposal sets up a joint union-management committee and as such is an
 appropriate arrangement under section 7106(b)(3) of the Statute.
 
    B.  Analysis
 
    The proposal provides for the establishment of a joint
 union-management committee with two members appointed by the Union and
 two members appointed by the Agency.  The functions of the committee
 would be (1) to determine by majority vote if the error regarding a
 payment deficiency (see Union Proposal 2) is the responsibility of the
 employee and (2) if it is determined not to be, to strike the error on
 the accuracy rate report.  The basic issue is whether the proposal
 constitutes a negotiable appropriate arrangement for employees adversely
 affected by the exercise of management's rights under section 7106(b)(3)
 of the Statute.  See the discussion of our decision in National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986) in connection with Proposal 1B.
 
    First the Authority must determine whether the proposal is in fact
 intended to be an arrangement for employees adversely affected by
 management's exercise of its rights.  The Authority finds that the Union
 intends the proposal to be an arrangement for employees adversely
 affected by management's exercise of its rights to assign work and
 direct employees through the establishment of performance requirements
 concerning payment deficiencies and the appraisal of employees based
 upon these requirements.  In essence, the proposal is intended to
 subject management's determination that an employee has committed an
 error to review by a joint union-management committee.
 
    However, the Authority finds that the proposal would not merely
 ameliorate the adverse effects of management's exercise of its rights.
 Rather, it would totally negate management's evaluation of employee
 performance.  The right to evaluate employee performance is part of
 management's rights to assign work and direct employees.  National
 Treasury Employees Union and NTEU Chapter 91 and Department of the
 Treasury, Internal Revenue Service, Southwest Region, 19 FLRA No. 82
 (1985) (Proposal 1).  A proposed arrangement which totally abrogates the
 exercise of a management right clearly does not constitute an
 appropriate arrangement within the meaning of section 7106(b)(3).  See
 American Federation of Government Employees, Local 1782 v. FLRA, 702
 F.2d 1183, 1188 (D.C. Cir. 1983), reversing and remanding American
 Federation of Government Employees, AFL-CIO, Local 1782 and Department
 of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
 See also Bureau of Engraving and Printing, U.S. Department of the
 Treasury and Washington Plate Printers Union, Local No. 2, IPDEU,
 AFL-CIO, 20 FLRA No. 39 (1985), in which the Authority held that an
 arbitrator, in resolving a grievance by an employee adversely affected
 by management's application of performance standards in an appraisal,
 could not conduct an independent evaluation of the employee's
 performance and substitute his or her judgment as to what should be that
 employee's performance evaluation.
 
    C.  Conclusion
 
    The Authority concludes that Union Proposal 4 excessively interferes
 with the Agency's rights to direct employees and assign work and does
 not constitute an appropriate arrangement under section 7106(b)(3) of
 the Statute.  Consequently, the proposal is outside the duty to bargain
 under section 7106(a) of the Statute.  In light of this determination,
 we find it unnecessary to address the Agency's additional argument
 concerning whether the proposal is a permissive matter under section
 7106(b)(1).
 
                               VIII.  Order
 
    The Union's petition for review insofar as it relates to Proposal 1B,
 2 and 4, and Paragraphs B and D of Proposal 3, is dismissed.  The Agency
 must upon request, or as otherwise agreed to by the parties, bargain
 concerning Proposal 1A, and Proposal 3A.  /1/
 
    Issued, Washington, D.C., January 6, 1987
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                  Majority Opinion on Proposals 1C and 3C
 
    I.  Union Proposal 1C
 
          Furthermore, the employer agrees that this review will not be
       used for any other purpose and that no employee will be demoted,
       terminated or involuntarily reassigned until they have exhausted
       all their statutory appeal rights.
 
    A.  Positions of the Parties
 
    The Agency's sole assertion is that the subject matter of the
 proposal is currently being negotiated at the national level and,
 therefore, that it has no obligation to negotiate the same matters with
 the Union at the Northeastern Program Service Center, which is below the
 level of exclusive recognition.
 
    The Union argues that the substance of the proposal is the same as
 that of Proposal 1 in American Federation of Government Employees,
 AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire
 Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom.
 Department of Defense v. Federal Labor Relations Authority, 659 F.2d
 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945,
 102 S. Ct. 1443 (1982).
 
    B.  Analysis and Conclusion
 
    Proposal 1C provides that the audit will not be used for any other
 purpose and adverse personnel actions against employees will be stayed
 until those employees have exhausted all statutory appeals procedures.
 
    The Agency makes no claim that it is nonnegotiable but only that the
 Agency has no duty to bargain on it at the Baltimore activity because
 the proposal is being negotiated at the national level.  The question
 raised by the Agency regarding its duty to bargain cannot be resolved in
 this decision.  The record in this case fails to provide any basis for
 substantiating the Agency's assertions.  Further, to the extent that
 there are factual issues in dispute between the parties concerning the
 duty to bargain in the specific circumstances of this case, these issues
 may be raised in other appropriate proceedings.  See Wurtsmith Air Force
 Base 14 FLRA at 306, n.6.
 
    We turn now to the substance of Proposal 1C and note that the phrase
 "the employer agrees that this review will not be used for any other
 purposes" is unclear since the parties do not address its intended
 meaning in their statements.  To the extent that this phrase would
 preclude the Agency from using the audit process to evaluate employees
 of the performance of their assigned duties it is inconsistent with the
 Agency's rights under section 7106(a)(2)(A) and (B) of the Statute to
 direct employees and to assign work.  See, for example, National
 Treasury Employees Union and NTEU Chapter 91 and Department of the
 Treasury, Internal Revenue Service, Southwest Region 19 FLRA No. 82 1985
 (Proposal 1).  Further, by totally preventing the Agency from exercising
 its right to evaluate employees in certain circumstances it would
 constitute neither a procedure within the meaning of section 7106(b)(2)
 of the Statute nor an appropriate arrangement within the meaning of
 section 7106(b)(3) of the Statute.  See American Federation of
 Government Employees, Local 1799 and Department of the Army, Aberdeen
 Proving Ground, Maryland, 22 FLRA No. 62, slip op. at 6 (1986).
 
    The meaning of the phrase "statutory appeal rights" is also not
 defined by the parties in their statements.  However, we find that to
 the extent this phrase only is intended to require that the imposition
 of the specified adverse personal actions will be stayed until an
 employee has exhausted whatever appellate rights exist to challenge such
 decisions, it is clearly within the duty to bargain under the Statute.
 See Dix-McGuire Exchange, 2 FLRA 153 (proposal staying imposition of
 disciplinary actions until a final decision on a review of such
 discipline is obtained through the negotiated grievance procedure found
 negotiable) and National Treasury Employees Union and Department of the
 Treasury, U.S. Customs Service, Decision and Order on Remand, 13 FLRA
 725 (1983) (proposal staying an adverse personnel action pending appeal
 to the Merit Systems Protection Board found negotiable).  Consequently,
 we find Proposal 1C to be in part nonnegotiable and in part negotiable.
 
                          II.  Union Proposal 3C
 
          The employer agrees to provide the union with a full
       explanation as to how such standards were arrived at along with
       all supporting documentation.
 
    Analysis and Conclusion
 
    Proposal 3C, as does Proposal 3A, merely calls for the Agency to
 provide the Union with information with respect to performance
 standards.  The positions of the Arties are the same for this proposal
 as they are for Proposal 3A.  Therefore, since the effect of this
 proposal is materially identical to Proposal 3A, that is providing
 information to the Union, the Authority finds Proposal 3C to be within
 the duty to bargain under the Statute for the same reasons expressed in
 our discussion concerning Proposal 3A.
 
                                III.  Order
 
    Regarding the Union's petition for review, the Agency must upon
 request, or as otherwise agreed to by the parties, bargain consistent
 with this decision concerning that portion of Proposal 1C found
 negotiable and Proposal 3C.  /2/ The Union's petition for review
 concerning the balance of Proposal 1C is dismissed.
 
    Issued, Washington, D.C., January 6, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean MdKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In finding these proposals within the duty to bargain the
 Authority makes no judgment as to their merits.
 
    (2) In finding these proposals within the duty to bargain the
 Authority makes no judgment as to their merits.
 
 
       Dissenting Opinion of Chairman Calhoun on Proposals 1C and 3C
 
    Proposal 1C concerns the uses of performance reviews of certain
 employees.  I agree with the majority that if the proposal is intended
 to preclude the Agency from evaluating employees on their performance,
 it is nonnegotiable.  The portion of the proposal providing that
 employees may not be demoted, terminated, or involuntarily reassigned
 "until they have exhausted all their statutory appeal rights" is unclear
 to me.  I agree that under the Dix-McGuire Exchange and U.S. Customs
 Service decisions, a proposal to stay the imposition of discipline
 pending the exhaustion of contractual grievance procedures and MSPB
 procedures could be negotiable.  In this case, however, it is my view
 that the Union has not met its burden by defining the "statutory appeal
 rights" to which its proposal refers.  In the absence of a clear
 indication of the parameters of the proposal, and its resulting effects
 on management's right to discipline, I am unable to determine whether
 the proposal is negotiable.  I believe that, in the future, the
 Authority should remand cases like this one to the parties for
 clarification of the record.
 
    As for Proposal 3C, it requires the Agency to provide the Union with
 a "full explanation" of how it arrived at performance standards "along
 with all supporting documentation." The majority finds that the effect
 of this proposal is materially identical to that of Proposal 3A and,
 therefore, finds both proposals to be negotiable for the same reasons.
 In my view, the two proposals are substantially different.  Proposal 3A
 requires Agency representatives to meet on an annual basis with
 employees and Union representatives to explain what performance is
 necessary to maintain a satisfactory rating and to sustain an acceptable
 level of competence.  Such a requirement effectuates the mandates of 5
 U.S.C. 4302 that performance appraisal systems provide for, among other
 things, the communication to employees of performance standards and
 critical elements and the assistance to employees in improving
 unacceptable performance.  Proposal 3C, on the other hand, requires the
 Agency to explain and provide documentation concerning particular
 standards.
 
    Management's rights under section 7106 of the Statute include more
 than the right to decide to take the final actions specified.  The
 exercise of those rights also encompasses the right to discuss and
 deliberate concerning the factors upon which the determinations to
 exercise the rights will be made.  See, for example, National Federation
 of Federal Employees, Local 1167 and Department of the Air Force,
 Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base,
 Florida, 6 FLRA 574 (1981), enforced sub nom. National Federation of
 Federal Employees v. FLRA 681 F.2d 886 (D.C. Cir. 1982).  Although
 originally articulated in relation to management's right to contract
 out, the principle has been extended to other rights, including the
 rights to determine the agency's organization, to layoff employees, and
 to make selections for appointments.  See National Federation of Federal
 Employees, Local 1431 and Veterans Administration Medical Center, East
 Orange, New Jersey, 9 FLRA 998 (1982);  National Federation of Federal
 Employees, Local 108 and U.S. Department of Agriculture, Farmers Home
 Administration, 16 FLRA 111 (1984) (Proposal 1);  and American
 Federation of Government Employees, AFL-CIO, Local 3488 and Federal
 Deposit Insurance Corporation, New York Region, 17 FLRA 538 (1985)
 (Proposal 2), respectively.
 
    In American Federation of Government Employees, AFL-CIO, Local 1708
 and Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15
 FLRA 3 (1984), a portion of Proposal 1 would have allowed the Union to
 "have an observer present in the development or revision of all measures
 of performance and studies." The Authority characterized the provision
 as requiring "the Union's involvement in managerial deliberations and
 discussions which are part of the decision-making process" directly
 relating to the exercise of management rights to direct employees and
 assign work.  Id. at 5.  The Authority held that this provision directly
 interfered with management's rights and was nonnegotiable.
 
    I find that Proposal 3C would have a similar result as that in
 Military Ocean Terminal.  Although the Union would not be physically
 present during the deliberations over the establishment of performance
 standards, it would be present "after the fact" through its examination
 of documents and explanations concerning those deliberations.  Further,
 the proposal requires the Agency to provide a "full" explanation and
 "all" supporting documentation.  The proposal could, therefore, result
 in disputes ending with arbitral review of the adequacy of the
 explanation and documentation.  The practical result of the proposal
 would be Union and possibly arbitral intrusion into the exercise of
 management's rights to develop performance standards.
 
    For these reasons, I find that Proposal 3C directly interferes with
 the exercise of management's rights to direct employe