38:0059(9)NG - - Philadelphia MTC and Navy, Philadelphia Naval Shipyard, Philadelphia, PA - 1990 FLRAdec NG - - v38 p59
[ v38 p59 ]
The decision of the Authority follows:
38 FLRA No. 9
FEDERAL LABOR RELATIONS AUTHORITY
PHILADELPHIA METAL TRADES COUNCIL
U.S. DEPARTMENT OF THE NAVY
PHILADELPHIA NAVAL SHIPYARD
DECISION AND ORDER ON NEGOTIABILITY ISSUE
November 7, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). When management decided to revise an Agency Instruction pertaining to the performance aspects of its apprenticeship program, the Union submitted the proposal in dispute. The Union's proposal would establish various criteria to determine "work experience performance." For the reasons discussed below, we find that the proposal is outside the duty to bargain under the Statute.
The Agency notified the Union that it intended to revise a local Instruction pertaining to its apprenticeship program. The Agency requested comments or proposals from the Union on the draft revision of the Instruction. Pursuant to this request, the Union submitted the following proposal to replace the language contained in section 11 b.(3) of the Agency's revised Instruction captioned Work Experience Performance Levels:
Work experience performance is below fully successful when the apprentice has two unsatisfactory, or three marginal or a combination of one unsatisfactory and two marginal.
A. Positions of the Parties
The Agency contends that the Union's proposal relating to the Agency's establishment of critical job elements and performance standards for employees in its apprenticeship program interferes with its rights to direct employees and assign work under sections 7106(a)(2)(A) and 7106(a)(2)(B) of the Statute. It cites American Federation of Government Employees, Local 3748 v. FLRA, 797 F.2d 612 (8th Cir. 1986) for the proposition that, while a Union may negotiate concerning the application of the language of performance standards, the content of performance standards "is outside management's obligation to bargain." Agency Statement of Position at 2. The Agency contends that the Authority has consistently held that proposals which attempt to establish the substance of performance standards interfere with management's rights under the Statute and are, consequently, outside the duty to bargain. According to the Agency, these holdings cover proposals that would establish the level of performance on individual job elements required to achieve a particular summary rating and proposals concerning the general criteria governing the determination of the content of performance standards or critical elements.
The Agency asserts that the proposal in this case "relates to the content of performance standards and not their application." Agency Statement of Position at 3 (emphasis in the original). Specifically, it contends that under the proposal it could not rate an apprentice below fully successful on the critical element of work performance "unless the employee received two unsatisfactory monthly evaluations, or three marginal monthly evaluations, or a combination of one unsatisfactory and two marginal evaluations." Id. at 4. The Agency contends, therefore, that it would be precluded under the proposal from establishing a performance standard that would rate an employee's work performance as being below fully successful "based on two marginal monthly evaluations or one unsatisfactory monthly evaluation." Id. Consequently, the Agency contends that the proposal is nonnegotiable because, by precluding it from establishing a performance standard for an apprentice's work that is below fully successful other than the one described in the proposal, the proposal interferes with its right to direct employees and assign work.
The Union contends that its proposal "is nothing more then established shipyard policy mandated by its previous instruction." Response at 2. It contends that the Agency has arbitrarily and capriciously exercised its management rights by establishing a stricter performance standard that may lead to "costly and protracted litigation[.]" Id. The Union also contends that the Agency's revised performance standard is not an "accurate evaluation of job performance" because under the revised standard "an apprentice can receive 10 monthly evaluations of outstanding and two monthly evaluations of marginal and then receive a summary rating of unsatisfactory." Id. The Union contends that the revised standard, therefore, contravenes 5 U.S.C. º 4302(b)(1), which requires that performance standards "permit the accurate evaluation of job performance on the basis of objective criteria. . . ." Moreover, the Union contends that an apprentice is "rated 12 times a year" and that the application of the revised performance standard "could adversely affect employees who otherwise would receive a satisfactory summary rating under the existing standards." Id. Thus, the Union contends that the proposal in dispute constitutes an "appropriate arrangement" for adversely affected employees under section 7106(b)(3). Id.
B. Analysis and Conclusions
The Union's proposal is nonnegotiable because it directly and excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
It is well established that proposals that establish the rating levels or criteria for performance evaluations are outside the duty to bargain because they directly interfere with management's rights to direct employees and assign work. For example, Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 531-33 (1990) (VAMC, Milwaukee); American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578 (1984) (Department of Justice).
As the Authority noted in Department of Justice, an essential aspect of management's assignment of work and the supervision and guidance of employees in the performance of their work is the establishment of job requirements for various levels of performance so as to elicit the quality and amount of work from employees necessary to effectively and efficiently fulfill the agency's mission and functions. Consequently, a proposal that would establish the particular levels of performance in individual job elements required to achieve a particular summary rating for overall performance interferes with management's rights to direct employees and assign work. Department of Justice, 13 FLRA at 580.
The Union's proposal seeks to establish the criteria for determining when an apprentice's work experience performance is below fully successful. As in VAMC, Milwaukee, the restrictions in the proposal limit the Agency's discretion to establish criteria for performance ratings, and, therefore, the proposal interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
We reject the Union's contention that because, in its view, the revised performance standard is not an accurate evaluation of performance as required by 5 U.S.C. º 4302(b)(1), it may substitute its proposal for the revised language in the Instruction. A proposal requiring only that performance standards be established in accordance with applicable law, including 5 U.S.C.º 4302(b), is negotiable. For example, American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1114, 1117 (1990). This proposal does not merely require the Agency to establish critical elements and performance standards in accordance with law, however. Rather, it sets explicit criteria for meeting the fully successful rating on one element. In so doing, it impermissibly establishes independent, substantive and contractual limitations on management's rights that go beyond the requirements of 5 U.S.C. º 4302. See American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and Department of the Navy, United States Marine Corps, 35 FLRA 108, 112 (1990). Further, even if, as the Union contends, the proposal in dispute largely mirrors an established Agency Instruction or practice, such fact does not render negotiable a proposal that is nonnegotiable under section 7106(a). See, for example, Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 947 (1988) (proposals that are nonnegotiable under section 7106(a) do not become negotiable based on management actions).
Finally, we turn to the Union's contention that the proposal in dispute is negotiable as an appropriate arrangement under section 7106(b)(3). In determining whether a proposal is an appropriate arrangement for adversely affected employees, and therefore negotiable under section 7106(b)(3) of the Statute, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by management's exercise of a reserved right. Once the proposal is determined to be an "arrangement," the Authority determines whether the proposed arrangement is "appropriate," or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986)(KANG).
The Union asserts that in the past the Agency recognized the unique nature of the apprenticeship position, in which apprentices are rated 12 times a year and that its proposal is intended to return to "established shipyard policy." Response at 2. The Union argues that the new standards "could adversely affect employees who otherwise would receive a satisfactory summary rating under the existing standards." Id. The new standard that the Unions's proposal would replace required a rating of "below fully successful" "when the apprentice has more than one 'Marginal' or 'Unsatisfactory' monthly evaluation during the rating period." Negotiability Appeal, Enclosure 2. Clearly, the revised standard established a harsher rating policy for the element in question than had previously been in effect. We conclude that the intended effect of the proposal is to maintain the previous performance standard that the Agency used to rate an apprentice's performance and to, thereby, ameliorate the adverse effects the revised standard might have upon employees. Therefore, the proposal is an "arrangement" within the meaning of section 7106(b)(3).
Having concluded that the proposal in dispute is an "arrangement," we now consider whether it is "appropriate." In order to determine whether the proposed arrangement contemplated by the proposal in dispute is "appropriate," within the meaning of section 7106(b)(3), we must examine whether the negative impact on management's rights to assign work or to direct employees is disproportionate to the benefits conferred by the proposal on employees. See KANG, 21 FLRA at 33; National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 843-44 (1990). The proposal in dispute would essentially preclude management from revising its performance standards. On the other hand, the proposal, according to the Union, could ameliorate the effect the revised standard might have on employees. On balance, we find that the proposal's negative impact on management's rights is excessive and far exceeds any benefit the proposal might confer on employees. We conclude, therefore, that the proposal excessively interferes with the Agency's rights to direct its employees and assign work and, therefore, does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Sta