26:0808(96)NG - NFFE, Local 1461, and Navy, Naval Observatory -- 1987 FLRAdec NG



[ v26 p808 ]
26:0808(96)NG
The decision of the Authority follows:


 26 FLRA No. 96
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1461
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 U.S. NAVAL OBSERVATORY
 Agency
 
                                            Case No. 0-NG-1075
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of two provisions of a negotiated agreement disapproved by
 the Agency head under section 7114(c) of the Statute.
 
                             II.  Provision 1
 
          Article 29 -- Basic Performance Appraisal System
 
          Section 29.4 -- Identification of Critical Elements and
       Performance Standards
 
          b.  Each job must have at least one critical element.  The
       number of critical elements should be kept to a minimum, normally
       not more than three to five.  (Only the underscored portion is in
       dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that the disputed language conflicts with its
 rights under section 7106(a)(2)(A) and (B) to direct employees and
 assign work.  It also argues that "the work 'normally' would establish a
 contractual limitation . . . in all but extraordinary circumstances."
 Statement of Position at 3.
 
    The Union states that the disputed language "provides a non-absolute
 guideline for ordinary practice in identifying numbers of critical
 elements." Petition for Review at 1.  It further states that the Agency
 has "greatly exaggerated the restrictiveness of this provision by
 ignoring the word 'should' and reading into the word 'normally' a rigid
 restrictiveness." Reply Brief at 3.
 
                        B.  Analysis and Conclusion
 
    We find that provision 1 violates management's right under section
 7106(a)(2)(A) and (B) to identify critical elements by imposing a
 substantive limitation on the Agency's discretion in the exercise of
 that right.
 
    It is well established that identification of critical elements
 constitutes an exercise of management's right to direct employees and to
 assign work under section 7106(a)(2)(A) and (B).  National Treasury
 Employees Union and Department of the Treasury, Bureau of the Public
 Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. NTEU v. FLRA, 691 F2d.
 553 (D.C. Cir 1982).  Identification of critical elements includes
 designating which components of a job are of such importance that
 failure to achieve a certain level of performance requires remedial
 action.  Bureau of Public Debt, 3 FLRA at 774.  Identification also
 includes determining the number of critical elements.  See International
 Federation of Professional and Technical Engineers, Local 25 and
 Department of the Navy, Mare Island Naval Shipyard, 13 FLRA 433, 436
 (1983);  National Federation of Federal Employees, Local 1028 and
 Department of the Army, Corps of Engineers, Norfolk District, Norfolk,
 Virginia, 7 FLRA 119, 120-21 (1981).
 
    The Union states that the disputed language "provides a non-absolute
 guideline for ordinary practice in identifying numbers of critical
 elements." Petition for Review at 1.  It also contends that the Agency
 has "greatly exaggerated the restrictiveness of this provision by
 ignoring the word 'should' and reading into the word 'normally' a rigid
 restrictiveness." Reply Brief at 3.  In our view, this qualifying
 language does not diminish the effect of the provision:  a substantive
 limitation on management's right to identify the number of critical
 elements for a particular job.  Provision 1 would have the same effect
 as the proposals in Mare Island Shipyard and Corps of Engineers, Norfolk
 District.  It would directly affect management's identification of
 critical elements by limiting the number of critical elements which
 could be established for a position covered by a performance appraisal
 system.  At the least, it would subject management's decision to
 establish six or more critical elements to arbitral review and therefore
 to the possibility of arbitrators substituting their judgment for that
 of management.  See 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. AFGE, Local 1968 v. FLRA, 691 F2d. 565 (D.C.
 Cir.1982), cert. denied, 461 U.S. 926 (1983).
 
                             III.  Provision 2
 
          Article 29 -- Basic Performance Appraisal System
 
          Section 29.6 -- Overall Performance Appraisal (Summary Rating)
 
          a.  Noncritical elements may be used to increase or decrease,
       by no more than one performance level, overall ratings based on an
       analysis of critical elements, except that a marginal rating may
       not be decreased to unsatisfactory, nor may a satisfactory rating
       be decreased to marginal.
 
                       . . . .
 
 
          M -- Marginal.  Most of the critical elements are rated M, but
       none is rated U.  However, where there is an even number of
       critical elements, and they are divided between M and S, the
       supervisor shall have discretion as to whether the summary rating
       shall be M or S.  Improvement is needed.
 
                       . . . .
 
 
          O -- Outstanding.  All critical elements are rated S or better
       and at least half are rated O.  Such performance usually merits a
       Quality Step Increase, but it is not mandatory.
 
                       A.  Positions of the Parties
 
    The Agency contends that the provision conflicts with its rights
 under section 7106(a)(2)(A) and (B) to direct employees and to assign
 work;  is contrary to a Government-wide regulation, 5 C.F.R. (
 430.202(d);  and is contrary to the Agency's performance appraisal
 program regulation, for which a compelling need exists.
 
    The Union contends that the methods for determining an appraisal's
 summary rating are not covered under section 7106(a)(2)(A) and (B).  It
 also contends that the proposed method of balancing critical and
 noncritical element ratings is an appropriate arrangement under section
 7106(b)(3) for employees adversely affected by the way work is assigned.
  Finally, the Union contends that there is not a compelling need for a
 uniform agency-wide performance appraisal system.
 
                        B.  Analysis and Conclusion
 
    For the reasons which follow, we find that provision 2 is outside the
 duty to bargain.  It is inconsistent with management's right under
 section 7106(a)(2)(A) and (B) and does not qualify for c