42:0964(69)NG - - NTEU and Agriculture, Food and Nutrition Service, Western Region - - 1991 FLRAdec NG - - v42 p964



[ v42 p964 ]
42:0964(69)NG
The decision of the Authority follows:


42 FLRA No. 69

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOOD AND NUTRITION SERVICE

WESTERN REGION

(Agency)

0-NG-1153

(28 FLRA 24 (1987))

DECISION AND ORDER ON REMAND

October 21, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case concerns nine provisions of a collective bargaining agreement that were disapproved by the Agency head under section 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute). The Authority initially dismissed the petition for review in this case holding that the Agency head was not empowered to review the provisions in dispute because they were directed to be included in the parties' agreement as a result of interest arbitration.(1)

The Authority's decision was vacated and remanded by the United States Court of Appeals for the Ninth Circuit in Department of Agriculture, Food and Nutrition Service, Western Region v. FLRA, 895 F.2d 1239 (9th Cir. 1990) (FNS, Western Region). In remanding the case, the Court directed the Authority to determine the proper disposition of this case under a rationale that does not conflict with the holding in Department of Defense Dependents Schools v. FLRA, 852 F.2d 779 (4th Cir. 1988) (DODDS). FNS, Western Region, 895 F.2d at 1240. In DODDS, the U.S. Court of Appeals for the Fourth Circuit had rejected the Authority's position that section 7114(c) of the Statute does not empower agency heads to review provisions that are directed to be included in an agreement as the result of an interest arbitration award.

In U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346 (1990) (INS), petition for review filed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Dec. 27, 1990), we announced that we would no longer adhere to the Authority's previous interpretation of section 7114(c). Rather, we stated that we would find that where the Federal Service Impasses Panel (the Panel) directs parties to interest arbitration under section 7119(b)(1) of the Statute, the agency head retains the right under section 7114(c) to review any provisions imposed. INS at 1358.

In U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991) (Bureau of Reclamation), we held that where parties voluntarily enter into interest arbitration pursuant to section 7119(b)(2) of the Statute, the appropriate mechanism for challenging resulting arbitration awards is through the filing of exceptions under section 7122 of the Statute. 41 FLRA at 8-9. Thus, if both parties agree to arbitration under section 7119(b)(2), the resulting arbitration award is not subject to agency head review under section 7114(c) of the Statute. See Panama Canal Commission v. FLRA, 867 F.2d 905 (5th Cir. 1989).

In reaching our conclusion in Bureau of Reclamation, we stated:

Section 7119(b)(1) and (2) is "decidedly in the disjunctive," however. In particular, although section 7119(b)(2) refers to the parties' agreement to adopt procedures for binding arbitration, interest arbitration resulting from a request for Panel assistance under section 7119(b)(1) is "nonvoluntary[.]" As such, arbitration resulting from requests under section 7119(b)(1) does not constitute "binding arbitration agreed upon by the parties and subject to review under § 7122." [Citations omitted.]

41 FLRA at 7.

In Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 798-99 (1991) (PTO), we further addressed the issue of agency head review of an interest arbitrator's award that resulted from a request for Panel assistance under section 7119(b)(1). We held that it made no difference whether the parties are compelled to refer their dispute to an interest arbitrator pursuant to final action of the Panel or enter into interest arbitration pursuant to a recommendation of the Panel. Id. We stated that the determinative factor for distinguishing voluntary interest arbitration from nonvoluntary interest arbitration is whether the parties have clearly signified their desire to enter into binding arbitration by utilizing the process available to them for that purpose that is provided in section 7119(b)(2) of the Statute. Id. We stated that we would not construe an impasse submitted to the Panel under section 7119(b)(1) of the Statute as constituting an agreement for binding arbitration. Therefore, any interest arbitration award resulting from that process would be subject to agency head review under section 7114(c) of the Statute.

In this case, the parties' impasse was submitted to the Panel under section 7119(b)(1) of the Statute. See Department of Agriculture, Food and Nutrition Service, Western Region v. FLRA, 879 F.2d 655, 657 (9th Cir. 1989). Consequently, based on our decision in PTO, the provisions of the interest arbitrator's award that resulted were subject to Agency head review under section 7114(c).

Having concluded that the Union's petition is appropriately before us, we turn to the provisions themselves. For the reasons that follow, we conclude that Provision 1, which concerns acceptable level of competence, is not inconsistent with an agency regulation for which a compelling need exists, as claimed by the Agency, and is negotiable. Provision 2, which concerns travel and per diem costs for Union representatives, concerns a condition of employment that is within the discretion of the Agency and is negotiable.

Sentence 1 of Provision 3, which concerns characteristics that performance standards must possess, directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is nonnegotiable. Sentence 2 of Provision 3, which allows for employee participation in the establishment of performance standards, does not directly interfere with management's rights to identify performance standards and critical elements as claimed by the Agency, and is negotiable. Provision 4, which provides a procedure for employees to bring disputes concerning their performance elements and standards to a reviewing official within the Agency, does not interfere with management's rights as claimed by the Agency and is negotiable.

With the exception of subsection 3, Provision 5 prescribes substantive criteria with which the content of performance elements must comply and, consequently, directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. That portion of the provision is nonnegotiable. Subsection 3, however, does not directly interfere with management's rights to direct employees and assign work and is negotiable.

Provision 6, which prescribes substantive criteria with which the content of critical elements must comply, directly interferes with management's rights to direct employees and to assign work and is nonnegotiable. The disputed portion of Provision 7, which prescribes substantive criteria with which the content of performance standards must comply, directly interferes with management's rights to direct employees and to assign work and is nonnegotiable.

The disputed portion of Provision 8, which establishes constructive knowledge as the point at which Agency responsibility for taking disciplinary action begins, does not directly interfere with management's right to take disciplinary action as claimed by the Agency and is negotiable. The disputed portion of Provision 9, which would include the substance of critical elements and performance standards within the scope of the negotiated grievance procedure once they are applied, is negotiable.

II. Provision 1

Article 1, Definitions - Acceptable Level of Competence

ACCEPTABLE LEVEL OF COMPETENCE (ALC) - "A term of art described within the Federal Personnel Manual, the Code of Federal Regulations, and the US Code (Title V) and relating specifically to that level of performance of an employee necessary to the award of a within-grade salary increase. Arrangements for determining and applying ALC regarding individual employee's performance and salary increases are contained within this contract."

[Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency contends that the disputed language is nonnegotiable because it is inconsistent with an Agency regulation for which a compelling need exists. The Agency asserts that the inconsistency results from the fact that the disputed language fails to "contain reference to the Department Personnel Manual (DPM), specifically, DPM Chapter 531, Subchapter 4-9c[.]"(2) Agency statement of position at 2. According to the Agency, under 5 U.S.C. § 5335(a) and implementing Office of Personnel Management (OPM) regulations that govern acceptable level of competence, agencies are responsible for identifying the level of performance that constitutes an acceptable level of competence. The Agency asserts that because DPM chapter 531, subchapter 4-9c(1) does so, it is "essential for implementation of the law and OPM's regulation, and the agency had a mandate to issue such regulation." Id. at 3. Therefore, the Agency argues that it meets the Authority's criteria for determining compelling need that are set out at 5 C.F.R. § 2424.11.

The Union states that the disputed language was proposed by the Agency and accepted by the interest arbitrator. Additionally, the Union states that Article 19, section 3, of the parties' agreement "adopts verbatim" the language that the Agency claims that it has a compelling need to include in Article 1.(3) Union reply brief at 8-9.

The Union contends that the law and regulations "only grant the Agency the power to determine certain standards of performance" and do not mandate how the standards will be defined. Id. at 7. Consequently, the Union asserts that the Agency's regulation does not implement, in a nondiscretionary manner, a statutory mandate, which the Union contends would be necessary to meet the Authority's compelling need standard.

B. Analysis and Conclusions

To establish that negotiations over a proposal are barred based on compelling need for an agency-wide regulation, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the provision; and (3) demonstrate that its regulation is supported by a compelling need with reference to the standards set forth in section 2424.11 of the Authority's regulations. For example, National Treasury Employees Union and Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 40 FLRA 849, 856 (1991).

Here the Agency identifies DPM chapter 531, subchapter 4-9c(1), as the Agency regulation with which Provision 1 allegedly conflicts. We do not agree that there is a conflict between the cited regulation and the disputed language of Provision 1. The disputed language sets forth only a generalized definition of the concept "acceptable level of competence." It does not, either by its terms or under the Union's statement of intent, prescribe or set forth the level of performance that is necessary to achieve an acceptable level of competence, which is the function of DPM chapter 531, subchapter 4-9c(1). In view of the fact that the disputed language of Provision 1 does not encompass the matter that is addressed by DPM chapter 531, subchapter 4-9c(1), we perceive no conflict between the two. Additionally, we do not find any basis for concluding that because the disputed language does not specifically reference the DPM, the Agency is prevented from conforming to the provisions of DPM chapter 531, subchapter 4-9c(1). Indeed, as the Union points out, the interest arbitrator's award contains language (Article 19, section 3) for inclusion in the contract that mirrors the DPM provision concerning the level of performance that constitutes an acceptable level of competence. Thus, the contract as a whole expressly reflects, rather than conflicts with, the cited DPM provision.

Consequently, we reject the Agency's assertion that there is a conflict between Provision 1 and the cited provision of the DPM. In view of this conclusion, we do not address whether that portion of the DPM meets the Authority's criteria for establishing compelling need. Based on the foregoing, we conclude that Provision 1 is negotiable.

III. Provision 2

Article 9 Section 1(D) Official Time

(D) Ordinary and customary travel and per diem costs incurred by UNION representatives, who are Agency employees in connection with the activities set out in Section 1(B) of this Article will be approved.

A. Positions of the Parties

The Agency argues that payment of travel and per diem expenses is governed by the Travel Expense Act, 5 U.S.C. § 5702, and, consequently, that such payments are not a condition of employment. Citing 46 Comp. Gen. 21, the Agency further contends that such payments can be made only as unilateral decisions by agencies. Additionally, the Agency argues that no entitlement to travel and per diem payments accompanies a grant of official time, citing Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF). The Agency contends that footnote 17 in BATF, which suggests that unions may negotiate for travel and per diem payments, is merely dictum and need not be followed. The Agency states that to the extent footnote 17 states that the payment of travel and per diem expenses may be made upon a determination that they serve the convenience of the Agency or are otherwise in the primary interest of the government, Provision 2 is still outside the duty to bargain because a blanket certification cannot be made that payment of travel and per diem is in the primary interest of the Government.

The Union argues that under the Travel Expense Act the Agency has the discretion to pay travel and per diem expenses where travel is construed as official business. The Union asserts that where, under applicable law and regulation, an agency has discretion concerning a condition of employment, such discretion is subject to negotiation. In disagreement with the Agency, the Union contends that the payment of travel and per diem expenses is a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Union asserts that Provision 2 constitutes the result of negotiation over the Agency's exercise of its discretion concerning a condition of employment and is negotiable.

B. Analysis and Conclusions

While this case was pending, the Authority issued National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986), affirmed sub nom. Department of Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) (Customs Service). In that decision the Authority found negotiable a proposal that an agency pay the travel expenses incurred by employees while using official time available under the parties' agreement. In so concluding, the Authority rejected the argument, which the Agency makes here, that the proposal did not concern conditions of employment because travel and per diem are governed by the Travel Expense Act. 21 FLRA at 7-8. The Authority concluded that under the Travel Expense Act and the Federal Travel Regulations, 41 C.F.R. § 301-1.1 et seq., payment of travel and per diem expenses that are incurred in the conduct of labor-management relations activity may be made where such is determined to be in the primary interest of the Government. 21 FLRA at 8-12.

The Authority has held that when this determination has been made, otherwise proper travel and per diem expenses may be paid from agency funds. For example, National Joint Council of Food Inspection Locals, AFGE, AFL-CIO and Food Safety and Inspection Service, U.S. Department of Agriculture, 23 FLRA 10 (1986) (Food Safety and Inspection Service). Contrary to the Agency's argument here, nothing in the authorities that govern the payment of such expenses, i.e., the Travel Expense Act and the Federal Travel Regulations, requires that this determination be made only by management and only on a case-by-case basis. For example, id. at 14. Rather, this determination may be made at the bargaining table. For example, Customs Service, 836 F.2d at 1385-86.

The Agency here makes no argument that travel flowing from the particular types of activities and circumstances set forth in section 1(B) of Article 9 could not meet the required standard of "primary interest of the Government." Additionally, nothing in the provision itself or the parties' arguments suggests that this provision would foreclose case-by-case determinations as to the appropriateness of particular travel and expenses that are proper under law and governing regulations. See, for example, Food Safety and Inspection Service, 23 FLRA at 14-15.

Based on the foregoing, we conclude that Provision 2 is within the duty to bargain. See also National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 31 FLRA 856 (1988); U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region and National Treasury Employees Union, 30 FLRA 477 (1987).

IV. Provision 3

Article 14, Performance Appraisal Section 2(A)

(A) The EMPLOYER is ultimately responsible for the development of realistic, objective, and consistent performance standards and the subsequent appraisal of performance against these standards. The identification of performance elements and the establishment of performance standards and the documentation of accomplishments should be a joint planning and communication process between UNION, the employee and his/her supervisor.

A. Positions of the Parties

The Agency argues that the first sentence of Provision 3 would restrict the content of performance standards and would subject that content to arbitral review. Consequently, the Agency asserts that the first sentence interferes with management's rights to assign work and direct employees under section 7106 of the Statute.

As to the second sentence, the Agency contends that although the Union states that that sentence is not intended to require negotiation on the content of performance standards, the Union does not state what is contemplated by the "joint planning and communication process" prescribed by the provision. The Agency asserts that "joint planning" connotes a mutual effort to identify the content of performance standards and critical elements. While the Agency concedes that employees have a right to participate in the establishment of performance standards, it contends that the Agency retains the right to identify performance standards and critical elements and that the second sentence interferes with that right.

In conjunction with this provision, the Union requests that should the Authority find any of the language nonnegotiable, "that it do so with particularity identifying which sentences or clauses are non-negotiable."(4) Union reply brief at 18 n.9.

The Union disputes the Agency's claim that this provision is nonnegotiable. As to the first sentence, the Union contends that it specifically acknowledges the Agency's right to identify performance standards and elements as well as to appraise employees against those standards and elements. The Union describes the first sentence as merely establishing a general, nonquantitative standard by which the application of performance standards established by management may subsequently be evaluated in a grievance filed by an employee who believes that he or she has been adversely affected by the application of the standards.

As to the second sentence, the Union denies that it would subject the content of critical elements to collective bargaining. According to the Union, the second sentence seeks only to provide for employee participation in the establishment of performance standards as is contemplated by 5 U.S.C. § 4302(a)(2) and does not prevent the Agency from establishing elements and standards. The Union contends that this portion of the provision is virtually identical to the first sentence of Union Proposal 1 in National Federation of Federal Employees, Local 1430 and Department of the Navy, Northern Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984), which the Authority held was negotiable.

B. Analysis and Conclusions

Management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. For example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 845 (1990) (NAFEC, Western Division), and cases cited therein. Proposals that restrict an agency's authority to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and to assign work. For example, NAFEC, Western Division at 845; American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276, 1280-81 (1990) SSA, Vallejo District Office.

On the other hand, proposals governing only the application of performance standards and critical elements do not conflict with management's rights to direct employees and to assign work. See, for example, NAFEC, Western Division at 846. Accordingly, the task in deciding the negotiability of the first sentence of this provision "'is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures.'" Id. at 846 (quoting Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 387 (1987)).

Notwithstanding the Union's claim that the first sentence of this provision acknowledges the Agency's right to determine the content of performance standards and to appraise employees against those standards, this sentence as written establishes characteristics that the standards must possess. Thus, by specifying that the standards be "realistic, objective, and consistent," this sentence places a substantive limitation on management's authority to determine the content of performance standards. As we recently stated in National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 683 (1991) (Department of Memorial Affairs):

Proposals that establish general criteria restricting the range of management action pursuant to a right under section 7106 of the Statute constitute a substantive limitation on the exercise of that right. Proposals establishing substantive criteria governing the exercise of a management right directly interfere with that right and are nonnegotiable.

The proposal at issue in that decision required the agency to distribute work "equitably." We noted that terms such as "equitable" or "equitably" had been found in previous Authority decisions to have varying substantive effects. Id. at 684. We concluded that terms such as "equitable" or "equitably," when used in proposals that govern the exercise of a management right, constitute substantive restrictions on the exercise of that right and that we would no longer follow previous decisions to the extent that those decisions held that the use of such terms do not constitute a substantive limitation. Id.

Insofar as the first sentence of this provision requires that performance standards possess specified characteristics, it would have the same effect as Provision 2 in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346 (1991) (OHA, Baltimore), which we concluded was nonnegotiable. In that decision we rejected a union assertion, similar to that which the Union makes here, that the provision concerned only the application of performance standards. Among other precedent, we cited a decision of the U.S. Court of Appeals for the Eight Circuit that stated, in relevant part:

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.

American Federation of Government Employees, Locals 3748 and 3365 v. FLRA, 797 F.2d 612, 618 (8th Cir. 1986).

Sentence 1 of Provision 3 is not limited to the application of performance standards. Rather, it restricts the Agency's authority to determine the content of the standards. By specifying characteristics that performance standards must possess, the first sentence of Provision 3 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Union describes this portion of the provision as applying in the context of a grievance being filed by an employee who believes that he or she has been adversely affected by the application of a performance standard. While this argument suggests the issue of whether this portion of the provision constitutes an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute, no further support is provided for such a conclusion. We realize that most of the pleadings in this case were submitted prior to the issuance of the Authority's decision in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), in which the Authority set forth the analytical framework that it would rely on to determine whether proposals constitute appropriate arrangements negotiable under section 7106(b)(3) of the Statute. Nevertheless, if it wished to do so, the Union could have requested to supplement its submissions after this case was remanded from the court to update and amplify its position with respect to the applicability of section 7106(b)(3) to this portion of the provision. In this regard, we note that the Agency made a request, which we granted, to file a supplemental submission after the court's remand in this case.

Here, the record does not permit a determination on whether the first sentence of this provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3). It is well established that parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711-12 (1990); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g 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). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990).

Based on the foregoing, we conclude that sentence 1 of Provision 3 is nonnegotiable.

Turning to sentence 2, we note that the Union expressly states that this portion of the provision is not intended to require negotiation over the content of performance standards. As this interpretation is consistent with the wording of the provision, we adopt it for purposes of this decision. Sentence 2 would have the same effect as Provision 1 in National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491 (1987) (BLM), reversed as to other matters sub nom. Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989). Provision 1 in BLM provided that the development of performance standards and the identification of critical elements would be a "joint effort" between the employee and the supervisor. In concluding that Provision 1 was negotiable, the Authority noted that it is well established that 5 U.S.C. § 4302(a)(2) encourages employee participation in establishing performance standards. The Authority further held that the manner in which an agency meets the requirement of 5 U.S.C. § 4302(a)(2) is negotiable to the extent that it does not prevent the agency from establishing performance standards and critical elements under section 7106(a)(2)(A) and (B). Id. at 1492.

The second sentence of Provision 3 in this case merely allows for employee participation in the formulation of performance standards without requiring negotiation over the content of those standards. Therefore it is negotiable. Compare id. at 1491-92 (provision specifying that the development of performance standards would be a joint effort between the employee and supervisor is negotiable) and National Federation of Federal Employees, Local 1430 and Department of the Navy, Northern Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984) (Proposal 1, which requires that the identification of performance element and the establishment of performance standards be a joint planning communication process between the employee, steward and supervisor, is negotiable) with National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456 (1990), remanded as to other matters without decision sub nom. U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. July 23, 1991) (sentence two of Proposal 4 is nonnegotiable because it would have the effect of allowing employees to negotiate over the content of performance standards).

V. Provision 4

Article 14, Performance Appraisal Section 2(G)

(G) Employees may bring disputes concerning performance elements and/or performance standards to the attention of the reviewing official. The reviewing official may exercise authority to change the disputed performance element and/or standard after discussion with the rating official. The employee may seek the assistance of the UNION in making this presentation. Official time for preparation and presentation shall be provided to the employee and the representative. The UNION will be provided with all documentation necessary to properly fulfill its representational duty.

A. Positions of the Parties

The Agency contends that rather than establishing a mechanism for resolution of disputes over the application of performance standards this provision establishes a procedure for questioning the content of the standard. The Agency asserts that because this provision addresses only the content of elements and standards, it infringes on management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Union disputes the Agency's contention that this provision infringes on management's rights. The Union describes this provision as constituting a procedure for employee participation regarding performance standards and elements. The Union states that this provision recognizes that the reviewing official may change an element or standard and does not provide for negotiation over the content of the standards or elements. The Union emphasizes that under this provision the ultimate determination as to the content of the performance standards and elements remains with the Agency.

B. Analysis and Conclusions

Provision 4 provides a negotiable procedure for employees to bring disputes concerning their performance elements and standards to a reviewing official within the Agency. See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 780 (1980), affirmed as to other matters sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). As written and as explained by the Union, this provision would not require negotiation over the content of the elements and standards. Rather, this provision would operate as a mechanism for review of elements and standards within the Agency. Further, the determination as to the content of those elements and standards would remain with the Agency. Based on the record, we find that nothing in this provision would interfere with the Agency's management rights to establish performance elements and standards. Provision 4 only provides a procedure by which employees may bring disputes concerning their performance elements and standards to a reviewing official within the Agency. In this regard this provision is similar to the second sentence of Provision 3, above, which we found was negotiable because it merely provides for employee participation in the formulation of performance standards without requiring negotiation over the content of the standards. Based on the foregoing, we conclude that Provision 4 is negotiable. See also National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA 1067 (1987) (Proposal 3) (FNS, Midwest Region), affirmed as to other matters sub nom. National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988).

VI. Provision 5

Article, 14, Performance Appraisal Section 3(A)

(A) Performance elements will be applied with due regard for the following:

(1) They will identify only work activities under the control of the employees.

(2) Employees in like positions, which are those with like position descriptions in the same work unit, will ordinarily have like elements. The EMPLOYER will explain any differences and justify them if the question is raised by the concerned employee or the UNION.

(3) They will be consistent with the duties and responsibilities contained in the employee's position description.

(4) They will be consistent with the grade level of the position.

(5) They will be performance-related rather than trait-related.

(6) To the extent practicable, they will not be overlapping and will cover distinct work responsibilities, i.e., they will be defined as including only one identifiable, independent task, duty, responsibility, function, performance objective, or performance dimension.

A. Positions of the Parties

The Agency asserts that the six subsections of this provision speak directly to, and would restrict the content of, critical and noncritical performance elements. Consequently, the Agency contends that this provision infringes on management's rights to direct employees and assign work and is nonnegotiable.

The Union asserts that the Agency's argument overlooks the prefatory language of the proposal, which, it contends, limits the provision to the application of performance elements. The Union contends that the six subsections "are simply factors which should be considered in judging the application of performance elements." Union reply brief at 26. According to the Union, "[n]one of them purport to prescribe what a particular performance standard or critical element shall or shall not be." Id. The Union contends that they simply provide for a general, nonquantitative standard to measure the application of critical elements, and, therefore, are negotiable.

B. Analysis and Conclusions

As we discussed earlier, proposals that restrict an agency's authority to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and assign work. For example, NAFEC, Western Division, 36 FLRA at 845; SSA, Vallejo District Office, 35 FLRA at 1280-81. On the other hand, proposals relating only to the application of performance standards and critical elements do not conflict with management's rights to direct employees and assign work. For example, NAFEC, Western Division, 36 FLRA at 846.

Here, the prefatory language of Provision 5 suggests that the provision is limited to the application of performance elements. Notwithstanding the prefatory language, however, each of the subsections, except (3) expressly prescribe substantive criteria with which the content of performance elements must comply. While the specified criteria do not dictate the precise content of the elements, they do in fact restrict the range of action management may take in establishing the content of performance elements. Although the preface to the provision speaks in terms of application, that does not change the fact that the actual criteria that follow apply to the content of the performance elements. That is, in order for the performance elements to comply with the specified criteria upon application, the content of the performance elements necessarily would have to conform to the standards and characteristics prescribed in the provision.

We conclude that because Provision 5, with the exception of subsection 3, specifies substantive criteria that govern the content of performance elements, those portions of the provision directly interfere with management's rights to direct employees and assign work. See, for example, OHA, Baltimore, 39 FLRA at 350-54; National Treasury Employees Union v. FLRA, 767 F.2d 1315, 1317 (9th Cir. 1985) (NTEU v. FLRA) (the court held that to specify any substantive criterion for the establishment of critical elements, "however reasonable," is to invade management's "exclusive statutory preserve."). Compare American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1114, 1117 (1990) (a proposal requiring only that performance standards be established in accordance with applicable law, including 5 U.S.C. § 4302(b), is negotiable).

Turning to subsection 3, the Authority has previously found that proposals that only require consistency between position descriptions and performance elements, like subsection 3, do not restrict an agency's choice of performance elements. For example, FNS, Midwest Region, 25 FLRA at 1071-74, affirmed as to other matters sub nom. National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988). The Authority has found that under such proposals an agency can achieve the required consistency by amending the position description and that the right of an agency to direct employees and assign work through establishing performance elements and standards remains unaffected, subject to the procedural requirement that the position description involved must accurately reflect the work assigned. Id. Such proposals are negotiable procedures under section 7106(b)(2). Id. For the reasons expressed in conjunction with Proposal 4 in FNS, Midwest Region, we conclude that subsection 3 of Provision 5 is negotiable.(5)

The remainder of Provision 5 is nonnegotiable because it directly interferes with management's rights to direct employees and assign work. In reaching this conclusion, we note that, as with the first sentence of Provision 3, the record does not contain sufficient information to allow a determination of whether any of these subsections would constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Therefore, we do not address that issue.

VII. Provision 6

Article 14, Performance Appraisal Section 3(B)

(B) When performance elements have been identified, distinctions will be made between those elements which are critical and those which are noncritical. Critical elements will be applied with due regard for the following:

(1) They will be regular and recurring parts of the employee's job.

(2) They will constitute primary responsibilities of employees.

(3) They will be those components which constitute a significant amount of the employee's time.

(4) They will be directly related to mission accomplishment.

(5) They will be those components on which unacceptable performance will have serious consequences to accomplishing the work.

A. Positions of the Parties

The Agency argues that this provision is similar to Provision 5 in that it specifies criteria by which the content of critical elements are to be judged. The Agency asserts that this provision, like Provision 5, interferes with management's rights to direct employees and assign work and is nonnegotiable.

The Union states that this provision is intended to be directed at the "application only of performance elements." Union petition at 5. According to the Union, the subparts of Provision 6 prescribe general, nonquantitative standards by which management's application of critical elements and performance standards may subsequently be evaluated in a grievance by an employee who believes that he or she has been adversely effected. The Union states that the standards set forth do not purport to determine what the specific content of a given critical element will be but "come into play simply upon the application to a given employee." Union reply brief at 30. The Union asserts that, under this provision, an arbitrator reviewing a grievance would be asked only to judge whether the application of the critical elements complied with the contractual standard.

B. Analysis and Conclusions

As with Provision 5, we reject the Union's assertion that the prefatory language of this provision serves to limit this provision to the application of critical elements. Rather, we find that, as written, each subsection prescribes a substantive criterion that governs the content of critical elements. The Union's assertion that this provision does not govern the establishment of critical elements because the prescribed standards only "come into play" when the critical elements have been applied is unpersuasive. As we noted in conjunction with Provision 5, in order for the critical elements to comply with the prescribed standards at the point of application, they must have been brought into compliance with those standards when they were established. In any event, what is critical is not the point at which the Agency will be held accountable for complying with the prescribed standards but whether the prescribed standards place conditions on the content of the critical elements. See, for example, NTEU v. FLRA, 767 F.2d 1315, 1317-18 ("Each proposal conditions the content of standards consigned to management discretion and, as a result, is beyond the duty to bargain.").

Because each subsection of Provision 6 contains criteria that address the content of critical elements and would restrict the range of Agency action in establishing the content of critical elements, we conclude that Provision 6, like Provision 5, directly interferes with management's rights to direct employees and assign work.(6) The Union describes this provision as applying only in the context of an employee who has been adversely affected by the application of critical elements. However, the record that has been established in conjunction with this provision, like that concerning Provision 3, does not contain sufficient information to allow a determination as to whether any of these subsections constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Based on the foregoing, we conclude that Provision 6 is nonnegotiable.

VIII. Provision 7

Article 14, Performance Appraisal, Section 3(C)

(C) Performance standards will be applied with due regard for the following:

(1) They will clearly state how well or how accurate (quality), how soon or when (timeliness), how many or how much (quantity), and in what manner they are to be performed.

(2) They will be objective and will identify levels that can be observed, measured, or verified on fact.

(3) They will be clearly and simply stated so as to minimize any error or misunderstanding in interpretation or application.

(4) They will ensure accurate evaluation of job performance to the greatest extent practicable, and they will actually measure what they purport to measure.

(5) They will be observable and measurable and reasonable and realistic. They will identify levels that can be reasonably attained and exceeded.

(6) Employees in like positions, which are those in like position descriptions in the same work unit, will ordinarily have like standards. The EMPLOYER will explain any differences and justify them if the question is raised by the concerned employee or the UNION.

(7) They will be written so as to clearly distinguish among the various levels of performance.

(8) The EMPLOYER shall not create any pre-established distribution of expected level of performance (such as the requirement to rate on a bell curve) that interfere with appraisal of actual performance against standards.

[Only the underlined portions are in dispute.]

A. Positions of the Parties

The Agency contends that the disputed language of this provision addresses the content of performance standards rather than being limited to application and is nonnegotiable. In this regard, the Agency claims that the disputed language clearly prescribes limits on the content of the performance standards and, therefore, interferes with management's right to direct employees and assign work.

The Union argues that the Agency ignores the prefatory language of the provision, which, according to the Union, limits the applicability of this provision to the application of performance standards. The Union contends that the prefatory language renders this provision almost identical to proposals that the Authority previously found was negotiable. Specifically, the Union cites American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Proposal 5); American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 2); and American Federation of State, County and Municipal Employees, AFL-CIO, Locals 2477 and 2910 and Library of Congress, 17 FLRA 786 (1985) (Proposal 1). The Union states that the factors listed in the disputed portion of the provision "only come into effect in relation to their application." Union reply brief at 31. The Union contends that because this provision is restricted to the application of performance standards the disputed portion is within the duty to bargain.

B. Analysis and Conclusions

Notwithstanding the reference to application that appears in the prefatory portion of this provision and the Union's claim that the disputed portions of this provision only come into effect in relation to the application of performance standards, we conclude that the disputed portions, as written, concern the content of performance standards. Subsection 2 states, "[t]hey will be objective." Subsection 5 states, "[t]hey will be observable and measurable and reasonable and realistic." It is clear that the "they" to which those portions refer are the performance standards themselves and that the reference to application establishes the point at which "they" will be judged for compliance with the criteria specified in the provision.

As we have stated in conjunction with Provisions 5 and 6, proposals that specify substantive criteria with which the content of performance standards and critical elements must conform directly interfere with management's rights to direct employees and assign work. As we noted in our discussion of Provision 6, what is critical is not the point at which the Agency will be held accountable for complying with prescribed criteria but whether the prescribed criteria place conditions on the content of performance standards and critical elements. In our view "objective," "observable," "measurable," "reasonable," and "realistic" all constitute substantive criteria. Although these terms may be general in nature, they establish characteristics that performance standards must possess and, consequently, "[condition] the content of standards consigned to management "discretion[.]" NTEU v. FLRA, 767 F.2d at 1318.

The Authority has consistently held that general criteria governing the determination of the content of a performance standard of critical element directly interfere with management's rights to direct employees and assign work. See, for example, OHA, Baltimore, 39 FLRA at 350-54; Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 386 (1987), aff'd as to other matters mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).

As we have found that the disputed portions of this provision specify substantive criteria governing the determination of the content of performance standards, we conclude that the disputed portions directly interfere with management's rights to direct employees and assign work. As was the case with Provisions 5 and 6, the record established in conjunction with this provision is insufficient to allow a determination as to whether any of the disputed portions of the provision constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Based on the foregoing, we conclude that the disputed portions of Provision 7 are not within the duty to bargain.

IX. Provision 8

Article 48, Adverse Actions Section 1(D)(3)

(D)(3) Investigation in proposing of disciplinary actions shall be handled in an expeditious manner after management has become aware of or should have become aware of the alleged misconduct/performance. [Only the underlined portion is in dispute.]

A. Position of the Parties

The Agency agrees that it has the obligation to timely investigate allegations of misconduct, of which it is aware and, if appropriate, to timely propose disciplinary action. However, the Agency contends that there are instances when management does not become aware of misconduct until long after the event even though it might be construed that managers should have been aware of the misconduct. The Agency argues that, in such instances, the disputed language would prevent it from taking appropriate disciplinary action. The Agency asserts that the disputed portion of this provision is analogous to proposals that the Authority previously has found are nonnegotiable because they directly interfere with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. Specifically, the Agency cites National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Proposal 1) (IRS) and American Federation of Government Employees, Local 1812, AFL-CIO and United States Information Agency, 16 FLRA 308 (1984) (Provision 2) (USIA), in which the Authority found nonnegotiable proposals that would prevent an agency from taking disciplinary measures against an employee as long as the employee was participating in a rehabilitation program.

The Union denies that the disputed language would prevent the Agency from taking disciplinary action. The Union contends that the disputed language is purely procedural in nature and would only establish a standard of responsibility for the Agency in taking disciplinary actions. That is, the Agency would be responsible for acting when it can be said to have "constructive knowledge" of any employee misconduct and cannot ignore circumstances occurring under its control. Union reply brief at 37. The Union points out that the Agency does not dispute that portion of the provision that addresses the Agency's responsibility to act based on actual knowledge and argues that the only difference between that aspect of the provision and the disputed portion is the type of notice, i.e., actual or constructive, that would give rise to the Agency's responsibility to act.

The Union contends that the disputed language merely provides employees who are adversely affected by the exercise of management's right to take disciplinary action with an additional procedural safeguard, but does not prescribe any particular remedy in the event that the contractual standard is violated. Rather, according to the Union, the ultimate question for the arbitrator would be whether the Agency's action promotes the efficiency of the service.

The Union maintains that the decisions cited by the Agency are inapposite. The Union states that the proposals in those cases provided a means for employees to avoid disciplinary action whereas the disputed language in this provision does not provide such a means. In any event, the Union contends that the disputed language does not excessively interfere with the exercise of a management right.

B. Analysis and Conclusions

Proposals that immunize an employee from disciplinary action have been held to directly interfere with management's right to take disciplinary action. For example, International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 274-76 (1988); USIA; IRS. Proposals establishing a time limit on management's ability to initiate disciplinary or adverse actions against employees also have been held to directly interfere with management's right under section 7106(a)(2)(A) of the Statute to discipline employees because such proposals establish a contractual "statute of limitations" that prevents management from disciplining employees after the time limit has expired. For example, American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187 (1991) (Provisions 3 and 8). Further, proposals requiring an agency to commence disciplinary investigations or actions normally within a specified time period have been held nonnegotiable because they similarly establish a contractual "statute of limitations." For example, id.

The disputed portion of this provision does not establish a "statute of limitations" with respect to taking disciplinary action. Unlike a "statute of limitations," it does not establish a time limit within which the Agency must act or forfeit its right to act. Rather, all it does is establish the starting point from which the Agency will be held accountable for taking disciplinary action. When read in conjunction with the requirement that disciplinary actions be handled "in an expeditious manner," the disputed language could be viewed as one of the components of a standard for judging the timeliness of the Agency's action. However, the Agency does not assert that the imposition of the standard of "expeditious" is inconsistent with its management right to take disciplinary action. Nor do we have any basis for concluding that it is. See National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, New York, 29 FLRA 94 (1987) (Provision 1) (U.S. Attorney's Office) (provision that disciplinary and adverse actions be initiated within a reasonable period of time held to be negotiable). In any event, the disputed portion of this provision does not establish any time constraints that would prevent the Agency from taking disciplinary action.

Nor does the disputed language immunize employees from discipline. While it may provide a basis for a defense to a disciplinary action on the procedural grounds of untimeliness, it does not prohibit action from being taken or otherwise shield an employee from having disciplinary action instituted against him or her. Thus, it is distinguishable from the proposals in those decisions cited by the Agency that would shield employees from disciplinary action while they are participating in rehabilitation programs.

Based on the foregoing, we reject the Agency's claim that the disputed portion of Provision 8 interferes with its right to take disciplinary action. We conclude that it is within the duty to bargain.

X. Provision 9

Article 51, Grievance Procedure Section (4)(1)(J)

Section 4

(1) This procedure shall be the exclusive procedure for resolving all grievances, but does not cover: ***

(J) The substance of critical elements and performance standards except where applied (e.g., performance appraisal, within-grade denial, unacceptable performance actions, etc.). [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency contends that this provision would subject the content of critical elements or performance standards to arbitral review if an employee is adversely affected by their application. Citing, among others, the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981) (Proposal 4) (St. Lawrence Seaway), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 461 U.S. 926 (1983), the Agency asserts performance standards and critical elements are nongrievable and nonarbitrable and that this provision infringes on management's rights under section 7106 of the Statute and is, consequently, nonnegotiable.

The Union argues that under the Authority's precedent, such as St. Lawrence Seaway, language providing for employees adversely affected by the application of critical elements and standards to grieve that application "relative to general nonquantitative standards" is within the duty to bargain. The Union contends that this provision specifically provides that the employee's ability to grieve a matter concerning performance standards and critical elements arises only when someone has been adversely affected. The Union states that "[t]o the extent that the arbitrator would be concerned with the contents of a given critical element and standard, he would . . . evaluate them only in relationship to applicable contractual standards, i.e., as provided under Article 14." Union reply brief at 35.

B. Analysis and Conclusions

We note that while this case was pending the Authority announced that it would no longer follow St. Lawrence Seaway to the extent that it precluded the arbitrability of all grievances that concerned the establishment and identification of performance standards and elements. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987) (Newark Air Force Station). For reasons expressed fully in Newark Air Force Station, the Authority held that an arbitrator could examine performance standards and elements upon their establishment to determine whether, among other things, they comply with legal requirements.

The modification of St. Lawrence Seaway in Newark Air Force Station had no effect on the consistent Authority position that grievances challenging the application of established standards and elements to an individual employee are grievable and arbitrable. Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1158-60 (1988) (SSA). Thus, prior to Newark Air Force Station, although grievances concerning the establishment of standards and elements were not grievable and arbitrable, grievances challenging the application of established standards and elements were grievable and arbitrable. The Authority emphasized that in grievances concerning application, review by the arbitrator would not affect management's determinations as to the content of the standards and elements. Rather, an arbitrator would determine only whether the application of the standards and elements to the employees complied with applicable law, regulation, and the parties' collective bargaining agreement. For example, SSA, 30 FLRA at 1159.

Provision 9 only recognizes that, once applied, the substance of critical elements and standards is a proper subject for coverage by the parties' negotiated grievance procedure. This is consistent with the Authority's decisions in cases such as SSA. See also National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 566-68 (1988), enforced in part and reversed in part as to other matters sub nom. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). The provision itself is silent as to the standards by which grievances concerning this subject matter will be reviewed. The Union states that under the provision the arbitrator could evaluate the contents of a given critical element and performance standard only in relationship to the applicable "contractual standards" that are provided in Article 14 of the parties' agreement. Union reply brief at 35.

Insofar as the "contractual standards" that are contained in Article 14 and that are at issue in this case are concerned, we note that we have upheld the Agency head's disapproval of those provisions that directly interfere with management's rights. Also, the Agency cites nothing, and nothing is otherwise apparent to us, that would support a conclusion that Provision 9 would authorize an arbitrator to enforce external limitations on the Agency's exercise of its management's rights beyond those that the Statute permits arbitrators to enforce.(7) Thus, there is no basis in the record of this case on which to conclude that Provision 9, either by its language or intent, would authorize an arbitrator to intrude impermissibly on management's rights.

Based on the foregoing, we conclude that Provision 9 is within the duty to bargain.

XI. Order

The Agency shall rescind its disapproval of Provisions 1; 2; 3, sentence 2; 4; 5, subsection 3; 8; and 9.(8) The Union's petition for review is dismissed as to Provisions 3, sentence 1; 5, all subsections other than 3; 6; and 7.

 




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Provision 9 was not included in the interest arbitrator's award, but had been proposed by the Union and agreed to by the Agency. Subsequently, it was disapproved by the Agency head along with the other provisions in dispute that had been included in the arbitrator's award.

2. DPM 531, Subchapter 4-9c(1), on which the Agency relies, provides:

"(1) Acceptable level of competence defined.

(a) For employees covered under the Department's Performance Appraisal Plan (DPM 430). An employee is regarded as having reached an acceptable level of competence when the employee's demonstrated work performance in all critical elements meets or exceeds standards established at the acceptable (3.0) level and when the employee's composite rating is 3.0 or greater.

3. Article 19, section 3, as set forth in the interest arbitrator's award, provides:

Section 3

An employee is regarded as having reached an acceptable level of competence when the employee's demonstrated work performance in all critical elements meets or exceeds standards established at the acceptable (3.0) level, and when the employee's composite rating is 3.0 or greater.

Petition for review, Attachment 1 at 34.

4. We grant the Union's request to the limited extent that we will rule separately on those portions that: (1) as submitted, are able to stand independently from the rest of the proposal; and (2) have been specifically addressed by the parties or are substantially identical to proposals addressed in existing Authority precedent.

5. Using phrasing similar to that contained in subsection 3, subsection 4 requires that performance elements be consistent with the grade level of the position. However, grade level is fundamentally different from the contents of a position description and, consequently, changing a grade level is not merely procedural in nature as is amending a position description. "Grade level" can entail matters such as position classification. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933 (1988). It can also involve management's right to determine its organization under section 7106(a)(1). See, for example, American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 26 FLRA 452, 455-57 (1987). Also, there are regulatory requirements that govern an employee's eligibility for promotion to a different grade level and that could put significant limitations on an agency's ability to change an employee's grade level. See, for example, 5 C.F.R. § 300.601-300.605 (time-in-grade restrictions); 5 C.F.R. § 335.104 (eligibility for career ladder promotion).

6. In reaching this conclusion, we note that the first sentence of Provision 6 appears to serve only as a preface for the remainder of the provision. In this regard, the Union has given no indication that this sentence is intended to stand independently of the remainder of the provision and it does not appear to us that it does. Consequently, we treat it as an integral part of the provision as a whole rather than a separate and independent component.

7. Recently the Supreme Court issued a decision that held that the Statute does not empower unions to enforce all external limitations on management rights, but only limitations contained in "applicable laws." Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623, 1628 (1990). In response to the Court's decision, the A