American Federation of Government Employees, Local 3656, AFL-CIO (Union) and Federal Trade Commission, Boston Regional Office (Agency) 

 



[ v05 p554 ]
05:0554(70)NG
The decision of the Authority follows:


 5 FLRA No. 70
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3656
 Union
 
 and
 
 FEDERAL TRADE COMMISSION,
 BOSTON REGIONAL OFFICE
 Agency
 
                                            Case No. 0-NG-78
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                            UNION PROPOSAL /1/
 
               PROMOTION AND PERFORMANCE APPRAISAL STANDARDS
 
    SECTION 1.  THE EMPLOYER'S POLICIES AND PROCEDURES CURRENTLY IN
 EFFECT, OR TO BE
 
    IMPLEMENTED IN THE FUTURE, REGARDING MERIT PROMOTION AND PERFORMANCE
 APPRAISAL STANDARDS, AND
 
    THE APPLICATION OF THOSE STANDARDS, ARE SUBJECT TO NEGOTIATION, SUCH
 NEGOTIATION TO COMMENCE
 
    WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT.  THE UNION
 AND EMPLOYEES WILL BE
 
    INFORMED, IN WRITING, OF ANY PROPOSED CHANGES IN SUCH POLICIES AND
 PROCEDURES AND GIVEN AN
 
    OPPORTUNITY TO MEET AND CONFER THEREON BEFORE SAID POLICIES AND
 PROCEDURES BECOME FINAL.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN BECAUSE IT IS INCONSISTENT WITH LAW, I.E., SECTION 7106 OF THE
 STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE IN THAT IT REQUIRES
 NEGOTIATION ON THE CONTENT OF PERFORMANCE STANDARDS.  /2/ ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE
 PETITION FOR REVIEW OF THE DISPUTED PROPOSAL BE DISMISSED.
 
    HOWEVER, AS THE AUTHORITY HAS EMPHASIZED IN OTHER CASES, /3/ ITS
 DECISION THAT THE CONTENT OF PERFORMANCE STANDARDS IS NONNEGOTIABLE DOES
 NOT MEAN THAT OTHER ASPECTS OF THE PERFORMANCE APPRAISAL SYSTEMS
 REQUIRED BY 5 U.S.C. 4302 ARE OUTSIDE THE DUTY TO BARGAIN UNDER THE
 STATUTE.  IN ADDITION, THE AUTHORITY HAS EMPHASIZED THAT, UNDER SECTION
 7106(B)(2) AND (3), AN AGENCY HAS THE DUTY TO BARGAIN ON THE PROCEDURES
 MANAGEMENT WILL OBSERVE IN, AND ON APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS BY AGENCY MANAGEMENT.  /4/ IN THIS REGARD, FOR EXAMPLE,
 PROPOSALS WHICH REQUIRE ADVANCE NOTICE OF PROPOSED CHANGES IN
 PERFORMANCE STANDARDS AND CRITICAL ELEMENTS AND AN OPPORTUNITY FOR THE
 UNION TO COMMENT THEREON, AND WHICH ARE OTHERWISE CONSISTENT WITH LAW
 AND REGULATION, WOULD BE WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE
 STATUTE.
 
    REASONS:  THE LANGUAGE OF THE DISPUTED PROPOSAL IS CONCERNED WITH
 VARIOUS ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS AND STANDARDS AS THEY
 RELATE TO PERFORMANCE APPRAISAL.  APART FROM OTHER MATTERS, THE AGENCY
 CLAIMS THAT THE PROPOSAL "ON ITS FACT" REQUIRES AGENCY MANAGEMENT TO
 NEGOTIATE THE "SUBSTANCE" OF PERFORMANCE STANDARDS.  /5/ THE UNION DOES
 NOT CONTRADICT THIS AGENCY STATEMENT AND PRINCIPALLY TAKES THE POSITION
 THAT THE ESTABLISHMENT OF PERFORMANCE STANDARDS IS WITHIN THE AGENCY'S
 DUTY TO BARGAIN.  IN THIS REGARD, THE UNION FURTHER CLAIMS THAT SHOULD
 ITS PROPOSAL BE FOUND NONNEGOTIABLE, UNIT EMPLOYEES WOULD HAVE NO
 "VIABLE" WAY TO PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS.  /6/ THEREFORE, THE UNION ALSO IMPLICITLY CONSTRUES ITS
 PROPOSAL AS REQUIRING NEGOTIATION ON THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS AND THAT INTERPRETATION OF THE DISPUTED PROPOSAL IS ADOPTED
 FOR PURPOSES OF THIS DECISION.
 
    THE PROPOSAL, TO THE EXTENT THAT IT WOULD REQUIRE NEGOTIATIONS ON THE
 ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS, BEARS NO MATERIAL
 DIFFERENCE FROM THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
 PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980) AT 4-6,
 WHICH SIMILARLY WAS INTERPRETED BY THE PARTIES TO THAT CASE AS REQUIRING
 NEGOTIATIONS ON THE ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE
 STANDARDS.  /7/ IN THAT CASE, THE AUTHORITY HELD, APPLYING THE
 PRINCIPLES SET FORTH IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT
 OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), THAT A
 PROPOSAL WHICH REQUIRES NEGOTIATIONS ON THE ESTABLISHMENT AND SUBSTANCE
 OF PERFORMANCE STANDARDS IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT
 DIRECTLY INTERFERES WITH THE EXERCISE OF AGENCY MANAGEMENT'S RIGHTS
 UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE TO DIRECT EMPLOYEES
 AND TO ASSIGN WORK.  THEREFORE, BASED ON THE REASONS SET FORTH IN
 GREATER DETAIL IN AFGE, LOCAL 32, SUPRA, AND BUREAU OF THE PUBLIC DEBT,
 SUPRA, THE PROPOSAL HEREIN, BY REQUIRING THE AGENCY TO NEGOTIATE ON THE
 ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS, IS OUTSIDE THE
 DUTY TO BARGAIN UNDER SECTION 7106 OF THE STATUTE.
 
    IT MUST BE EMPHASIZED, HOWEVER, AS WAS STATED IN BUREAU OF THE PUBLIC
 DEBT AND AFGE, LOCAL 32, THAT NOT ALL MATTERS PERTAINING TO THE
 DEVELOPMENT OF PERFORMANCE APPRAISAL SYSTEMS ARE OUTSIDE THE DUTY TO
 BARGAIN.  IN THIS REGARD, THE DECISION IN BUREAU OF THE PUBLIC DEBT, AT
 10 OF THE DECISION, STATED AS FOLLOWS:
 
    THIS DECISION DOES NOT MEAN THAT ALL MATTERS RELATED TO ESTABLISHING
 PERFORMANCE APPRAISAL
 
    SYSTEMS ARE OUTSIDE THE DUTY TO BARGAIN.  CONSISTENT WITH THE INTENT
 OF CONGRESS AS EXPRESSED
 
    IN SECTION 7101 AND OTHER SECTIONS OF THE STATUTE, PERFORMANCE
 APPRAISAL SYSTEMS, APART FROM
 
    THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF
 PERFORMANCE STANDARDS, ARE
 
    WITHIN THE DUTY TO BARGAIN, TO THE EXTENT THEY ARE CONSISTENT WITH
 LAW AND REGULATION.  TO THE
 
    EXTENT THAT AN AGENCY HAS DISCRETION WITH RESPECT TO A GIVEN MATTER
 RELATED TO SUCH SYSTEMS
 
    THE AGENCY MUST UPON REQUEST NEGOTIATE WITH AN EXCLUSIVE
 REPRESENTATIVE OVER THAT MATTER. IN
 
    PARTICULAR, AS NOTED PREVIOUSLY, SECTION 4302(A)(2) OF THE CSRA
 REQUIRES THAT PERFORMANCE
 
    APPRAISAL SYSTEMS "ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING
 PERFORMANCE STANDARDS" BUT
 
    DOES NOT SPECIFY THE FORM WHICH SUCH EMPLOYEE PARTICIPATION MUST
 TAKE.  CONSEQUENTLY, AMONG
 
    OTHER SIGNIFICANT ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS, THE
 MANNER IN WHICH A PARTICULAR
 
    AGENCY PROVIDES FOR SUCH EMPLOYEE PARTICIPATION IS WITHIN THE
 AGENCY'S DISCRETION AND,
 
    THEREFORE, WITHIN THE DUTY TO BARGAIN TO THE EXTENT THAT IT WOULD NOT
 PREVENT THE AGENCY FROM
 
    ESTABLISHING PERFORMANCE STANDARDS AND CRITICAL ELEMENTS PURSUANT TO
 ITS STATUTORY RIGHTS TO
 
    DIRECT EMPLOYEES AND ASSIGN WORK.
 
    THUS, PROPOSALS WHICH ARE OTHERWISE CONSISTENT WITH LAW AND
 REGULATION AND RELATE ONLY TO PARTICULAR ASPECTS OF PERFORMANCE
 APPRAISAL SYSTEMS, APART FROM THE IDENTIFICATION OF CRITICAL ELEMENTS
 AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, ARE WITHIN THE DUTY TO
 BARGAIN.
 
    SIMILARLY, THE DECISION IN BUREAU OF THE PUBLIC DEBT STATED THAT
 PROPOSALS WHICH ONLY EST