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

 26 FLRA No. 96
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1461
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 U.S. NAVAL OBSERVATORY
 Agency
 
                                            Case No. 0-NG-1075
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of two provisions of a negotiated agreement disapproved by
 the Agency head under section 7114(c) of the Statute.
 
                             II.  Provision 1
 
          Article 29 -- Basic Performance Appraisal System
 
          Section 29.4 -- Identification of Critical Elements and
       Performance Standards
 
          b.  Each job must have at least one critical element.  The
       number of critical elements should be kept to a minimum, normally
       not more than three to five.  (Only the underscored portion is in
       dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that the disputed language conflicts with its
 rights under section 7106(a)(2)(A) and (B) to direct employees and
 assign work.  It also argues that "the work 'normally' would establish a
 contractual limitation . . . in all but extraordinary circumstances."
 Statement of Position at 3.
 
    The Union states that the disputed language "provides a non-absolute
 guideline for ordinary practice in identifying numbers of critical
 elements." Petition for Review at 1.  It further states that the Agency
 has "greatly exaggerated the restrictiveness of this provision by
 ignoring the word 'should' and reading into the word 'normally' a rigid
 restrictiveness." Reply Brief at 3.
 
                        B.  Analysis and Conclusion
 
    We find that provision 1 violates management's right under section
 7106(a)(2)(A) and (B) to identify critical elements by imposing a
 substantive limitation on the Agency's discretion in the exercise of
 that right.
 
    It is well established that identification of critical elements
 constitutes an exercise of management's right to direct employees and to
 assign work under section 7106(a)(2)(A) and (B).  National Treasury
 Employees Union and Department of the Treasury, Bureau of the Public
 Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. NTEU v. FLRA, 691 F2d.
 553 (D.C. Cir 1982).  Identification of critical elements includes
 designating which components of a job are of such importance that
 failure to achieve a certain level of performance requires remedial
 action.  Bureau of Public Debt, 3 FLRA at 774.  Identification also
 includes determining the number of critical elements.  See International
 Federation of Professional and Technical Engineers, Local 25 and
 Department of the Navy, Mare Island Naval Shipyard, 13 FLRA 433, 436
 (1983);  National Federation of Federal Employees, Local 1028 and
 Department of the Army, Corps of Engineers, Norfolk District, Norfolk,
 Virginia, 7 FLRA 119, 120-21 (1981).
 
    The Union states that the disputed language "provides a non-absolute
 guideline for ordinary practice in identifying numbers of critical
 elements." Petition for Review at 1.  It also contends that the Agency
 has "greatly exaggerated the restrictiveness of this provision by
 ignoring the word 'should' and reading into the word 'normally' a rigid
 restrictiveness." Reply Brief at 3.  In our view, this qualifying
 language does not diminish the effect of the provision:  a substantive
 limitation on management's right to identify the number of critical
 elements for a particular job.  Provision 1 would have the same effect
 as the proposals in Mare Island Shipyard and Corps of Engineers, Norfolk
 District.  It would directly affect management's identification of
 critical elements by limiting the number of critical elements which
 could be established for a position covered by a performance appraisal
 system.  At the least, it would subject management's decision to
 establish six or more critical elements to arbitral review and therefore
 to the possibility of arbitrators substituting their judgment for that
 of management.  See American Federation of Government Employees,
 AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence
 Seaway Development Corporation, Massena, New York, 5 FLRA 70, 79-80
 (1981), affirmed sub nom. AFGE, Local 1968 v. FLRA, 691 F2d. 565 (D.C.
 Cir.1982), cert. denied, 461 U.S. 926 (1983).
 
                             III.  Provision 2
 
          Article 29 -- Basic Performance Appraisal System
 
          Section 29.6 -- Overall Performance Appraisal (Summary Rating)
 
          a.  Noncritical elements may be used to increase or decrease,
       by no more than one performance level, overall ratings based on an
       analysis of critical elements, except that a marginal rating may
       not be decreased to unsatisfactory, nor may a satisfactory rating
       be decreased to marginal.
 
                       . . . .
 
 
          M -- Marginal.  Most of the critical elements are rated M, but
       none is rated U.  However, where there is an even number of
       critical elements, and they are divided between M and S, the
       supervisor shall have discretion as to whether the summary rating
       shall be M or S.  Improvement is needed.
 
                       . . . .
 
 
          O -- Outstanding.  All critical elements are rated S or better
       and at least half are rated O.  Such performance usually merits a
       Quality Step Increase, but it is not mandatory.
 
                       A.  Positions of the Parties
 
    The Agency contends that the provision conflicts with its rights
 under section 7106(a)(2)(A) and (B) to direct employees and to assign
 work;  is contrary to a Government-wide regulation, 5 C.F.R. (
 430.202(d);  and is contrary to the Agency's performance appraisal
 program regulation, for which a compelling need exists.
 
    The Union contends that the methods for determining an appraisal's
 summary rating are not covered under section 7106(a)(2)(A) and (B).  It
 also contends that the proposed method of balancing critical and
 noncritical element ratings is an appropriate arrangement under section
 7106(b)(3) for employees adversely affected by the way work is assigned.
  Finally, the Union contends that there is not a compelling need for a
 uniform agency-wide performance appraisal system.
 
                        B.  Analysis and Conclusion
 
    For the reasons which follow, we find that provision 2 is outside the
 duty to bargain.  It is inconsistent with management's right under
 section 7106(a)(2)(A) and (B) and does not qualify for consideration
 under section 7106(b)(3).  In view of this conclusion, we find it
 unnecessary to address the Agency's contentions that the proposal is
 contrary to Government-wide and Agency regulations.
 
         1.  Establishment of criteria for the determination of a
 
                summary rating is within management's reserved rights.
 
    Provision 2 has essentially the same effect as the proposal held
 nonnegotiable in American Federation of State, County and Municipal
 Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA
 578 (1984).  In that case, the proposal established the number of rating
 levels for individual job elements and overall performance.  It also
 concerned what quality of performance in individual job elements would
 be required to achieve a particular overall performance rating.  The
 Authority held that the proposal was inconsistent with management's
 right to direct employees and to assign work.  For the reasons set forth
 in U.S. Department of Justice, we find that provision 2 likewise is
 inconsistent with management's rights under section 7106(a)(2)(A) and
 (B).
 
                  2.  Provision 2 is not an arrangement.
 
    During the pendency of this case the Authority issued National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986), concerning section 7106(b)(3).
 There we stated that henceforth we will determine whether a proposal
 constitutes an appropriate arrangement for employees adversely affected
 by the exercise of a management right by determining whether the
 proposal "excessively interferes" with the exercise of management's
 rights.
 
    The threshold question in applying the Kansas Army National Guard
 analysis is whether the proposal is an "arrangement" for adversely
 affected employees.  In Patent Office Professional Association and
 Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29,
 slip op. at 12-13 (1987), petition for review filed sub nom. Patent
 Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar 26,
 1987), we found that proposal 3.K., which prescribed criteria for the
 establishment of performance standards and rating levels, did not
 qualify for consideration under section 7106(b)(3).  We reasoned that
 the establishment of performance standards did not by itself adversely
 affect employees.  Any adverse effect would not occur until an action
 was taken against an employee based on the application of those job
 requirements to the employee.  Thus, because proposal 3.K. was not an
 "arrangement," it did not qualify for consideration under section
 7106(b)(3), and therefore, we did not determine if the proposal was an
 "appropriate arrangement."
 
    Provision 2 concerns criteria for determining the summary rating of a
 performance appraisal.  It sets forth:  (1) how performance ratings in
 noncritical elements may be used to adjust the summary rating;  and (2)
 what performance ratings in critical elements would be required for a
 "Marginal" or "Outstanding" summary rating.  In our view, provision 2 is
 similar in effect to proposal 3.K. in Patent and Trademark.  Provision 2
 prescribes criteria for the determination of a summary rating whereas
 proposal 3.K. in Patent and Trademark prescribed criteria for the
 establishment of performance standards and rating levels.  In our view,
 the establishment of criteria for the determination of a summary rating
 like the establishment of criteria for performance standards and rating
 levels does not by itself adversely affect employees.  Accordingly, for
 the reasons set forth in Patent and Trademark, we need not determine
 whether provision 2 is an "appropriate arrangement" since it does not
 qualify for consideration under section 7106(b)(3).
 
                                IV.  Order
 
    The petition for review as to provisions 1 and 2 is dismissed.
 
    Issued, Washington, D.C. April 30, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY