25:0487(34)NG - AFGE Local 1603 and Naval Hospital Patuxent River, MD -- 1987 FLRAdec NG



[ v25 p487 ]
25:0487(34)NG
The decision of the Authority follows:


 25 FLRA No. 34
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1603
 Union
 
 and
 
 U.S. NAVAL HOSPITAL
 PATUXENT RIVER, MARYLAND
 Agency
 
                                            Case No. 0-NG-1217
                                            22 FLRA No. 60
 
             DECISION AND ORDER ON MOTION FOR RECONSIDERATION
 
    This matter is before the Authority pursuant to the Union's timely
 filed request for reconsideration of the Authority's Decision and Order
 on Negotiability Issue of July 15, 1986.  In that decision the Authority
 held that the provision under review was not within the duty to bargain.
 
    In its request for reconsideration, the Union contends that the
 Agency failed to serve the Union with a copy of its statement of
 position, as required by section 2424.6(b) of the Authority's Rules and
 Regulations.  The Union contends that it was therefore denied an
 opportunity to set forth in full its position on the negotiability
 question prior to the Authority's decision.  The Agency did not file an
 opposition to the Union's request for reconsideration.
 
    By letter of August 28, 1986, the Authority's Director of Case
 Management stated that it had been established that the Union was not
 served with a copy of the Agency's statement of position, a copy of
 which was enclosed.  Subsequently, the Union filed its response.
 
    We find, pursuant to section 2429.17 of our Rules and Regulations,
 that the Union has established the requisite extraordinary circumstances
 to warrant reconsideration of the Authority's decision.  Because the
 Union did not have a copy of the Agency's statement of position, it was
 unable to respond to the Agency's contentions before the Authority
 issued its decision.  Accordingly, we have granted the Union's motion so
 that we can consider the negotiability of the following provision based
 on the record now before us:
 
                           Article IX, Section 5
 
          An employee who believes that he/she has been adversely
       affected by the application of a performance standard may raise
       the issue of whether the performance standard, as applied to the
       employee, is fair and reasonable in any grievance proceeding or
       arbitration on the matter.  In interpreting whether a performance
       standard is fair and reasonable, an arbitrator shall bear in mind
       that 5 USC 4302 states that the employer must establish
       performance standards which will, to the maximum extent feasible,
       permit the accurate evaluation of Job Performance on the basis of
       objective criteria related to the job in question.
 
    In American Federation of Government Employees, AFL-CIO, Local 1603
 and U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA No. 60
 (1986), the Authority found, contrary to the Union's explanation, that
 the clear language of the provision was not limited to subjecting the
 application of performance standards to grievance and arbitral review.
 The Authority found the language of the second sentence of the provision
 would require an arbitrator to determine whether performance standards
 themselves are fair and reasonable by reviewing the criteria used by
 management in such standards to evaluate job performance.  The Authority
 therefore concluded that to the extent that the provision required an
 arbitrator to determine whether performance standards themselves are
 fair and reasonable, it violated management's rights to assign work and
 direct employees under section 7106(a)(2)(A) and (B) of the Statute and
 was outside the duty to bargain.
 
    In its response to the Agency's statement of position, the Union
 alleges that the Agency erroneously concluded that the provision
 requires the performance standard itself to be fair and reasonable and
 provides for arbitral review to determine if it is fair and reasonable.
 The Union also alleges that the intent of its provision, as previously
 set forth in its petition for review of negotiability issue, was to have
 the performance standards applied in a fair and reasonable manner.  It
 contends that the provision itself does not state that performance
 standards must be fair and reasonable.  Finally, it alleges that the
 provision represents an appropriate arrangement under section 7106(b)(3)
 of the Statute.
 
    We find that the Union's contentions cannot be sustained.  The
 Authority has consistently held that it will not base a negotiability
 determination on a union's statement of intent which is inconsistent
 with the clear language of the disputed provision.  See, for example,
 American Federation of Government Employees, AFL-CIO, Local 933 and
 Veterans Administration Medical Center, 20 FLRA No. 80 (1985), at n.2.
 We find that the language in the second sentence of the provision is
 clear and would require an arbitrator to determine whether performance
 standards themselves are fair and reasonable, in violation of section
 7106(a)(2)(A) and (B) of the Statute.  Therefore, the Union's contention
 as to its intent in drafting the provision cannot overcome the clear
 language of the provision.
 
    Additionally, we find no merit to the Union's contention that the
 provision constitutes an appropriate arrangement under section
 7106(b)(3) of the Statute.  We found in Patent Office Professional
 Association and Patent and Trademark Office, Department of Commerce, 25
 FLRA No. 29 (1987) that provisions, like the one in this case, that
 determine the content of performance standards do not constitute
 appropriate arrangements under section 7106(b)(3).
 
    Thus, on review of the en