34:1114(170)NG - - AFGE, Education Council of AFGE Locals and Education - - 1990 FLRAdec NG - - v34 p1114



[ v34 p1114 ]
34:1114(170)NG
The decision of the Authority follows:


34 FLRA No. 170

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

DEPARTMENT OF EDUCATION COUNCIL OF AFGE LOCALS

(Union)

and

DEPARTMENT OF EDUCATION

(Agency)

0-NG-1596

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of three proposals involving performance appraisals.(1)

We find that Proposal 1, which requires the Agency's performance appraisal system to be fair, equitable and job-related, is nonnegotiable because it directly interferes with management's rights to direct employees and assign work. Proposal 2, which provides that the performance appraisal system will be the principal source of performance appraisal information for certain purposes, is negotiable because it is consistent with law and regulation and does not interfere with management's rights to discipline, hire, promote and reassign employees. Proposal 3, which allows employees to choose to be represented by the Union at performance appraisal meetings, is negotiable because it does not interfere with management's rights to assign work and direct employees.

II. Proposal 1

ARTICLE 22   PERFORMANCE APPRAISAL

Section 22.02. It is the policy of the Department that the performance appraisal system will:

(a) Be fair, equitable and job related.

A. Positions of the Parties

The Agency contends that Proposal 1 interferes with management's rights to direct employees and assign work. The Agency relies on American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714 (1987) (OPM) (Proposals 1 and 2, requiring the agency's performance appraisal system to be "fair and consistent," interfered with management's right to direct employees and assign work); and American Federation of Government Employees, Local 3748 and Agricultural Research Service, Northern States Area and Department of Agriculture, Forest Service, Black Hills National Forest, 20 FLRA 495, 496 (1985), aff'd sub nom. AFGE, Locals 3748 and 3365 v. FLRA, 797 F.2d 612 (8th Cir. 1986) (Black Hills National Forest). The Agency asserts that Proposal 1 is materially the same as Proposals 1 and 2 in OPM and would subject the content as well as the application of the appraisal system to arbitral review.

In response to the Union's explanation that the proposal merely relates to the application of the performance appraisal system, the Agency raises three arguments. The Agency asserts that: (1) "the [Union's] explanation is inconsistent with the plain language of the proposal"; (2) the requirement that the "system" be fair, equitable and job related applies to the identification of the critical elements of the performance appraisal system; and (3) the proposal applies to the establishment of performance levels, the number of rating levels, and the levels of performance required to attain particular ratings. Agency Statement of Position at 3.

The Union claims that Proposal 1 does not concern the establishment of performance standards. The Union argues that Proposal 1 establishes general, non-quantitative criteria which apply to the performance appraisal system. The Union initially argues that "[t]he proposal applies generally to the system and is intended to apply in the application of the performance appraisal system." It subsequently acknowledges that the proposal "requires that the overall system be formulated and applied in a fair, equitable and job related manner." Union Response at 3 and 8. The Union further contends that the "concept contained in the proposal is consistent with 5 U.S.C. 4302(b)(1)," which requires agencies to establish performance standards which will permit the accurate evaluation of job performance on the basis of objective criteria related to the job. Union Response at 4. The Union asserts that the proposed wording, "insofar as practicable," limits the proposal's application. In response to the Agency's argument that the proposal would subject management's decisions regarding performance appraisals to arbitral review, the Union argues that the arbitration process would be limited to matters which have been determined by the Authority to be within an arbitrator's jurisdiction.

B. Analysis and Conclusion

Proposal 1 is outside the duty to bargain because it directly interferes with management's rights to assign work and direct employees.

The plain wording of the proposal encompasses the "performance appraisal system" as a whole, including the establishment of performance standards which will be applied. This plain meaning of Proposal 1 is consistent with the Union's explanation that its proposal "requires that the overall system be formulated and applied in a fair, equitable and job-related manner." Id. at 8. Moreover, the Union's explanation indicates that Proposal 1 requires the formulation--as well as the application--of the overall system, including performance standards, to be accomplished in a particular manner.

Proposals which restrict management's authority to determine the content of performance standards are inconsistent with the rights to assign work and direct employees. National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578 (1988) (Provision 3) (Department of Energy); OPM, 28 FLRA at 715; Black Hills National Forest, 20 FLRA at 496. The Authority found in Black Hills National Forest that provisions which required performance standards to be fair, objective, job-related and measurable restricted management's authority to establish performance standards.

In OPM, 28 FLRA at 715-16, the Authority found that proposals which provided that "[t]he review system will in all aspects be fair and consistent . . ." interfered with management's rights to assign work and direct employees. In so ruling, the Authority relied upon the decision of the U.S. Court of Appeals for the Eighth Circuit in Black Hills National Forest, which states as follows:

To allow the Union to negotiate over the meaning of such a broad and subjective term as "fair," for example, would effectively open the door to bargaining over any aspect of performance standards. Contradicting their expressed wish to affect only the application of performance standards, the Union is attempting to gain a foothold in territory that is management's exclusively, i.e., fashioning the content of performance standards.

797 F.2d at 618.

The Authority found in OPM that the proposals' requirements were not restricted to the application of the performance appraisal system. Rather, they applied to the content of the system. The Authority further found that the proposals determined the content of critical elements and performance standards. The Authority concluded that the proposals directly interfered with management's rights to assign work and direct employees.

A proposal requiring only that performance standards be established in accordance with applicable law, including 5 U.S.C. § 4302(b), is negotiable. Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 633-34 (1987); American Federation of Government Employees, AFL-CIO, Local 1940 and Department of Agriculture, Plum Island Disease Center, 16 FLRA 816, 819 n.6 (1984). Proposal 1, however, does not merely require the Agency to establish performance standards in accordance with law. Rather, Proposal 1 requires that the performance standards be fair, equitable and job-related. It expressly prescribes additional contractual criteria to govern the content of standards "insofar as practicable." We find, therefore, that Proposal 1 places substantially different requirements on the Agency than are imposed by section 4302(b)(1). Consequently, although the concepts of fairness, equity and job-relatedness in appraisal systems are ideals to which agencies and unions no doubt aspire, Proposal 1 directly interferes with management's rights to direct employees and assign work. See Department of Energy, 32 FLRA at 586 (portion of Provision 3 which created contractual criteria for the establishment of performance standards held nonnegotiable).

In sum, like the disputed matters in Department of Energy, OPM and Black Hills National Forest, Proposal 1 would determine the content of performance standards. Thus, Proposal 1 directly interferes with management's rights to direct employees and assign work. In addition, as in OPM, the requirement of Proposal 1 that the performance appraisal system be fair, equitable and job related is not limited to the application of the performance appraisal system. Instead, based on the Union's explanation of the proposal, the requirement applies as well to the formulation of the "overall system."

The use of the phrase "insofar as practicable" does not render Proposal 1 negotiable. The phrase does not remove the substantive limitations which Proposal 1 places on management's rights. Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 308 (1987) (Proposals 1 and 2) (Congressional Research Service).

Based on the foregoing, we find that Proposal 1 is outside the duty to bargain.

III. Proposal 2

ARTICLE 22   PERFORMANCE APPRAISAL

[Section 22.02. It is the policy of the Department that the performance appraisal system will:]

[* * *]

Section 22.02(e). Be the principal source for performance appraisal information when performance is a factor in personnel actions (e.g., rewarding, reassigning, training, promoting, reducing in grade, or removing.) [The portion of the proposal appearing in brackets is not in dispute.]

A. Positions of the Parties

The Agency contends that Proposal 2 conflicts with: (1) 5 U.S.C. § 4302, which requires each agency to develop one or more performance appraisal systems which use the results of performance appraisals as "a basis" for training, rewarding, reassigning, promoting, reducing in grade, retaining and removing employees; and (2) 5 C.F.R. § 430.201, which requires agencies to use the results of performance appraisals as "a basis" for making certain personnel decisions. In support of this contention, the Agency notes that the proposal provides that the performance appraisal "system" be the "principal source" for information, whereas law and regulation require that performance "appraisals" be "a basis" for information.

The Agency further argues that by requiring performance appraisals to be the principal basis for certain actions, the proposal improperly prescribes substantive criteria for the exercise of management's rights to discipline, hire, promote and reassign employees.

The Union states that the proposal is consistent with law, regulation and congressional intent. According to the Union, the intent of the proposal is to follow the course set out in the Federal Personnel Manual and 5 C.F.R., as well as Title II of the Civil Service Reform Act, which require the appraisal system to be the principal source for "major employment decisions." Union Response at 8. Further, "Congress and OPM consider the performance appraisal system as the de facto principal source of performance appraisal information from the emphasis put on 'critical elements.'" Union Response at 11. Lastly, the Union states that the proposal does not limit the Agency's use of other sources for performance information such as referral information about an employee from previous jobs or jobs performed while an employee is temporarily detailed to other duties.

B. Analysis and Conclusion

Under 5 U.S.C. § 4302, agencies must establish performance appraisal systems which use the results of performance appraisals as "a basis" for training, rewarding, reassignment, promoting, reducing in grade, retaining, and removing employees. This requirement is restated in 5 C.F.R. § 430.201(b)(4). Proposal 2 does not conflict with this requirement.

We reject the Agency's claim that Proposal 2 requires management to use information provided by the performance appraisal system as the principal basis for taking various personnel actions. The plain wording of Proposal 2 does not govern management's use of performance information in personnel actions. The proposal only requires that when the Agency uses performance as a basis for a personnel action, the performance appraisal system will be the principal source for performance appraisal information. The proposal does not require management to use performance information as the basis for a personnel action or specify how such information, if obtained, will be used. Because the proposal is limited to performance appraisal information, it does not restrict management's use of sources other than the performance appraisal system to obtain information concerning performance which does not pertain to an appraisal rendered under the Agency's appraisal system. For example, "referral information about an employee from previous jobs or jobs performed while the employee is temporarily detailed to other duties" would not be restricted by Proposal 2. Union Response at 10. This information falls outside of the appraisal system and the proposal only concerns performance appraisal information. Therefore, we conclude that the Agency has misinterpreted Proposal 2 and that Proposal 2 does not conflict with 5 U.S.C. § 4302 or implementing Government-wide regulations.

Similarly, we reject the Agency's claim that Proposal 2 interferes with management's rights under the Statute. As noted above, Proposal 2 provides only that the performance appraisal system will be the principal source for performance appraisal information. Proposal 2 does not specify how the information obtained is to be applied. Proposal 2, therefore, only requires the Agency to obtain information through the official performance appraisal system when examining employee performance which is covered by that system. The Agency has not demonstrated how this requirement interferes with its management rights. Therefore, we find that Proposal 2 does not interfere with management's rights.

Accordingly, Proposal 2 is within the duty to bargain.

IV. Proposal 3

ARTICLE 22 PERFORMANCE APPRAISAL

[Section 22.02. It is the policy of the Department that the performance appraisal system will:]

Section 22.02(f). Provide that an employee may elect to have a union representative present at any meeting where performance appraisals are discussed. [The portion of the proposal appearing in brackets is not in dispute.]

A. Positions of the Parties

The Agency contends that Proposal 3 would directly and excessively interfere with the Agency's rights to assign work and direct employees. The Agency argues that the proposal is similar to Proposal 17 in Congressional Research Service, which the Authority held to be nonnegotiable because it "would provide for Union representation in a broad and open-ended range of meetings or, arguably, 'shop floor' discussions." Agency Statement of Position at 6.

The Union states that the intent of the proposal is to negotiate representation rights beyond the minimum required by the Statute. It states that the Authority found similar proposals to be negotiable in National Treasury Employees Union and Department of Energy, 22 FLRA 131 (1986); and American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982) (Proposal 5) (Immigration and Naturalization Service) reversed as to other matters sub nom. INS v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). The Union asserts that Proposal 3 is distinguishable from the proposal in Congressional Research Service because the proposal in that case, unlike Proposal 3, allowed employees to refuse to attend any meetings or to participate in any discussions if they had been denied the right to have a union representative present.

B. Analysis and Conclusion

Proposal 3 grants employees the right to have a Union representative present during any meeting where performance appraisals are discussed. The proposal does not directly interfere with management's rights to assign work or direct employees.

An agency's duty to negotiate concerning the representation of employees is not limited to the rights given employees under section 7114(a)(2) of the Statute. Immigration and Naturalization Service, 8 FLRA at 354-57 (Proposal 5). Proposals which grant employees the right to union representation at meetings between management and employees on matters affecting conditions of employment are negotiable. For example, National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797 (1987) (Proposal 12) (Bureau of Land Management) (proposal providing for union representation in discussions with the employer's representative during the course of a classification audit held to be negotiable); and American Federation of State, County and Municipal Employees, AFL-CIO, Local 2027 and ACTION, Washington, D.C., 12 FLRA 643 (1983) (Proposal 1) (proposal providing for union representative at all meetings with management involving classification matters, including desk audits held to be negotiable).

Proposal 3 grants employees a right to have a union representative present in meetings concerning performance appraisals. Unlike Proposal 17 in Congressional Research Service, Proposal 3 does not give employees the right to refuse to attend the meeting or discussion if denied representati