American Federation of Government Employees, Local 225 (Union) and U.S. Department of the Army, Armament Research, Development, and Engineering Center, Picatinny Arsenal, New Jersey (Agency)

[ v56 p686 ]

56 FLRA No. 115

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 225
(Union)

and

U.S. DEPARTMENT OF THE ARMY
ARMAMENT RESEARCH, DEVELOPMENT
AND ENGINEERING CENTER
PICATINNY ARSENAL, NEW JERSEY
(Agency)

0-NG-2515

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

September 25, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

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), and concerns the negotiability of two proposals. For the reasons that follow, we find that the proposals are not within the duty to bargain. Accordingly, we dismiss the petition.

II.     Background

      The performance evaluation regulation promulgated by the Agency in 1993 ("the 1993 regulation") provides that, to receive an overall Level 1 rating, senior system employees must meet over 50 percent of objectives, and base system employees must receive an "[e]xcellence" rating in two or more responsibilities. [n1]  Statement of Position at 2. The 1993 regulation also provides that, to receive an overall Level 2 rating, senior system employees must meet 25-50 percent of objectives, and base system employees must receive an "[e]xcellence" rating in one responsibility. Id.

      The Agency announced its intention to modify the 1993 regulation. The proposed modification ("the Agency-proposed regulation") would require that, to receive an overall Level 1 rating, senior system employees must meet 75 percent or more of objectives, and base system employees must receive an "excellence" rating in three or more responsibilities. The Agency-proposed regulation would also require that, to receive an overall Level 2 rating, senior system employees must meet 25-74 percent of objectives, and base system employees must receive an "excellence" rating in one or two responsibilities.

      The Union requested to bargain over the Agency-proposed regulation and submitted the two proposals at issue here. The Union asserted that, because the 1993 regulation is the subject matter of an agreement ("TAPES agreement") between the parties, the Union is entitled to negotiate any modification to the 1993 regulation. [n2]  The Agency responded, offering to bargain over the impact and implementation of the Agency-proposed regulation and claiming that the specific proposals submitted by the Union were not negotiable. The Agency has not implemented the Agency-proposed regulation, and the 1993 regulation remains in effect. See Record of Telephonic Conference (July 31, 2000).

III.     The Proposals

1.     The current agreement between AFGE Local 225 and ARDEC for the TAPES Appraisal System of November 1993 shall remain as is and in place, otherwise
2.     The original GPAS appraisal system, (Article 49 of the Collective Bargaining Unit between AFGE and Local 225) be reimplemented, thereby canceling out the TAPES agreement of November 1993.[ [n3] ] [ v56 p687 ]

IV.     Positions of the Parties

A.     Agency  [n4] 

      The Agency argues that the proposals would prohibit the Agency from modifying the formula for determining performance ratings and, in effect, would establish a specific rating formula. As such, the Agency contends that the proposals conflict with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency also contends that neither the TAPES agreement nor Article 49 of the parties' expired agreement requires it to bargain over the substance of the formula.

B.     Union

      The Union argues that the proposals do not affect management's rights. According to the Union, the proposals concern the overall rating formula used by the Agency, which is not related to management directing and assigning employees to perform work. In addition, the Union claims that the proposals do not establish a specific rating formula because the rating formula is established in the 1993 regulation. The Union also claims that the proposals are negotiable under section 7106(b)(2) and (3) of the Statute. In this regard, the Union claims that the impact of the Agency-proposed regulation on unit employees would be more than de minimis and that the adverse effects on employees are not speculative.

      The Union also argues that any change to the 1993 regulation is negotiable because the TAPES agreement is a valid agreement that has not expired. The Union asserts that because the 1993 regulation is incorporated into the TAPES agreement, any changes to the 1993 regulation constitute a change to the TAPES agreement that must be negotiated.

      Finally, the Union asserts that the change in the rating formula is "covered by" both Article 49 of the parties' expired collective bargaining agreement (which incorporated the pre-1993 formula), and the TAPES agreement. [n5]  Therefore, the Union asserts that the Agency cannot change the 1993 regulation without bargaining over both the substance and the impact and implementation of the change.

V.     Meaning of the Proposals

      There is no dispute over the meaning of the proposals.

      Proposal 1 provides that the TAPES agreement will remain as is and continue in effect. By requiring the Agency to continue to adhere to the 1993 regulation, Proposal 1 prohibits the Agency from changing the performance rating formula set forth in the 1993 regulation.

      Proposal 2 provides that the TAPES agreement shall be canceled and that the pre-1993 formula shall be reinstated. By canceling the 1993 regulation and requiring that the pre-1993 formula be implemented, Proposal 2 prohibits the Agency from changing the performance rating formula set forth in the pre-1993 formula.

VI.     Analysis and Conclusions

A.     The Proposals Affect Management's Rights to Direct Employees and Assign Work

      Management's rights to direct employees and assign work include the rights to determine the quantity, quality, and timeliness of employees' work products and to establish employees' work priorities. See National Association of Government Employees, Local R14-52 and U.S. Department of Defense, Defense Finance and Accounting Service, Washington, D.C., 45 FLRA 910, 914 (1992) (Department of Defense) (citation omitted). An essential aspect of these management rights 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." American Federation of Government Employees, Council of Locals 163 and U.S. Department of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Massachusetts, 52 FLRA 1063, 1065 (1997) (Defense Contract). Thus, proposals that establish particular levels of performance in individual job elements required to achieve a particular summary performance rating affect management's rights to direct employees and assign work. See National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898 (1997) (Overseas Education).

      The proposals here would prohibit the Agency from changing the 1993 regulation to establish new [ v56 p688 ] overall performance rating formulas. As such, the proposals would establish the formulas for employees' overall performance ratings by requiring the Agency to either continue to apply the 1993 regulation or return to the pre-1993 formula. As the proposals would establish the particular levels of performance required to achieve a particular summary rating for overall performance, they affect management's rights to direct employees and assign work. See Defense Contract, 52 FLRA at 1065; 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, 473 (1990), decision on remand as to other matters, 43 FLRA 47 (1991). The Union's argument that the rating of employees is separate from management's rights to direct employees and assign work is not supported by Authority case law and does not provide a basis for reaching a contrary conclusion.

B.     The Proposals Do Not Constitute Procedures or Appropriate Arrangements

      Section 2424.25(c)(1)(ii) of the Authority's Regulations provides that a union's response to an agency's statement of position "must state the arguments and authorities supporting . . . any assertion that an exception to management rights applies, including . . . [w]hether and why the proposal" constitutes a procedure. The Union did not explain its assertion that the proposals constitute procedures. See Response at 12. Accordingly, we reject the assertion. [n6] 

      The test for determining whether a proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) is set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that test, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). The alleged arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See American Federation of Government Employees, Local 1687 and U.S. Department of Veterans Affairs, Medical Center, Mountain Home, Tennessee, 52 FLRA 521, 523 (1996).

      If the proposal is an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management rights. KANG, 21 FLRA at 31-33. In determining whether a proposal is appropriate, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.

      We find, for the following reasons, that the proposals are not appropriate because they excessively interfere with management's rights. Accordingly, even assuming that the proposals constitute arrangements, the proposals are outside the duty to bargain.

      The proposals would benefit employees by precluding the reduction in performance ratings -- and awards based on the ratings -- that would otherwise result from implementation of the Agency-proposed regulation. While this is a clear benefit, we note that implementation of the Agency-proposed regulation would not result in employees losing their status relative to each other and, as a result, employees' promotion potential and RIF retention status would not suffer from the Agency-proposed regulation.

      With regard to the burdens on management, the Union's proposals would completely preclude the Agency from exercising its right to revise performance rating formulas. [n7]  In particular, the proposals would require the Agency to indefinitely apply either the performance formula that was in effect in 1993, or the pre-1993 formula, even though circumstances may have rendered those formulas irrelevant or obsolete. Thus, the proposals would place a significant burden on management. We note that the Authority has found that similar proposals excessively interfered with management's rights. See National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1153 (1991). [ v56 p689 ]

      On balance, we conclude that the proposals excessively interfere with management's rights, and that as a result, they do not constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.

C.     The Union Has Not Established That the Agency's Bargaining Obligation Is Affected by the Parties' Earlier Agreements

      The Union asserts that, but does not explain how, the TAPES agreement and the parties' expired collective bargaining agreement require the Agency to bargain over the proposals. In addition, the Union's concession that it did not bargain over the substance of that formula when it entered into its prior agreements (because, according to the Union, it was satisfied with the existing formula), undercuts its argument that the Agency is now obligated to bargain over the formula because it bargained over that formula in the past. See Record of Telephonic Conference (July 31, 2000). Moreover, even if the parties bargained over the formula in the past, there is no basis to conclude that such previous bargaining renders future bargaining mandatory. Cf. National Air Traffic Controllers Association, Rochester Local and U.S. Department of Transportation, Federal Aviation Administration, Rochester, New York, 56 FLRA 288 (2000) (prior bargaining over permissive subjects does not make mandatory future bargaining over those subjects).

      Finally, the Union asserts that the Agency-proposed change in the rating formula is "covered by" the parties' prior agreements. However, it is clear that the Union is not making a "covered by" argument as that term is used in Authority case law. In this regard, the "covered by" doctrine applies in cases where a party asserts that it is not obligated to bargain over a particular subject matter because that subject matter is "covered by" the parties' agreement. See generally U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993). In this case, neither party asserts that the prior agreements relieve it from an obligation to bargain. In fact, the Union expressly argues that negotiations are required -- not precluded -- by the prior agreements. See Record of Telephonic Conference (July 31, 2000).

      Based on the foregoing, and consistent with our conclusion that the proposals excessively interfere with management's rights to direct employees and assign work, we conclude that the proposals are outside the duty to bargain.

VII.     Order

      The petition for review is dismissed.



Footnote # 1 for 56 FLRA No. 115

   In general, the senior system covers employees at grades GS-9 and above; the base system covers employees at lower grades. See Statement of Position at 2.


Footnote # 2 for 56 FLRA No. 115

   The TAPES agreement provides that "[t]his article and the appropriate regulations shall be the framework for appraising and/ or evaluating employees[,]" and that "[a]ll employees shall receive appraisals in accordance with the [1993 regulation]." Petition for Review, Attachment.


Footnote # 3 for 56 FLRA No. 115

   Prior to the 1993 regulation, performance ratings were governed by a system ("the pre-1993 formula") that was set forth in Article 49 of the parties' collective bargaining agreement. The agreement expired in 1989. See Response at 5.


Footnote # 4 for 56 FLRA No. 115

   The Agency requests consideration of its Reply brief, which was received by the Authority approximately 3 weeks after its due date. The filing date is determined by the date of mailing, not the date of receipt by the Authority. See 5 C.F.R. § 2429.21(a). As the Agency mailed the Reply 1 day before the due date, it was timely filed.


Footnote # 5 for 56 FLRA No. 115

   The Union also argues that no compelling need exists for the 1993 regulation. However, as the Agency does not assert a compelling need for the regulation, we do not address the matter further.


Footnote # 6 for 56 FLRA No. 115

   We note that the Authority has held that proposals establishing the levels of performance required for an overall performance rating affect management's rights and do not constitute negotiable procedures. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 48 FLRA 129, 135-36 (1993), petition for review denied, 47 F.3d 1217 (D.C. Cir. 1995). The parties do not question the continued viability of this precedent, and, therefore, we do not address it.


Footnote # 7 for 56 FLRA No. 115