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

 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 ESTABLISH PROCEDURES FOR THE DEVELOPMENT AND
 IMPLEMENTATION OF PERFORMANCE STANDARDS AND CRITICAL ELEMENTS, OR WHICH
 ONLY ESTABLISH APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED
 BY THE APPLICATION OF PERFORMANCE STANDARDS AND CRITICAL ELEMENTS TO
 THEM, ARE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) AND (3) OF
 THE STATUTE.  /8/ IN THIS REGARD, THE AUTHORITY STATED, AT 11-12 OF THE
 DECISION, AS FOLLOWS:
 
    (S)ECTION 7106(B)(2) PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN
 ON THE PROCEDURES WHICH
 
    MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING SECTION 7106 RIGHTS.
 SIMILARLY, SECTION
 
    7106(B)(3) PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN ON
 APPROPRIATE ARRANGEMENTS FOR
 
    EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS
 AUTHORITY. THE LEGISLATIVE
 
    HISTORY RELEVANT TO THESE PROVISIONS MAKES CLEAR THAT THEY ARE
 INTENDED TO AUTHORIZE AN
 
    EXCLUSIVE REPRESENTATIVE TO NEGOTIATE ON SUCH MATTERS EXCEPT TO THE
 EXTENT THAT THE
 
    ESTABLISHMENT OF PROCEDURES OR APPROPRIATE ARRANGEMENTS THROUGH
 NEGOTIATIONS WOULD PREVENT THE
 
    AGENCY FROM ACTING AT ALL.  INSOFAR AS IT IS CONSISTENT WITH
 MANAGEMENT'S AUTHORITY TO ACT,
 
    CONGRESS INTENDED THE PARTIES TO WORK OUT THEIR DIFFERENCES IN
 CONNECTION WITH THESE MATTERS
 
    THROUGH NEGOTIATIONS.  THUS, TO THE EXTENT CONSISTENT WITH LAW AND
 REGULATION, THE PROCEDURAL
 
    CONTEXT OF PERFORMANCE EVALUATION, INCLUDING PROCEDURES RELATED TO
 THE IDENTIFICATION OF
 
    CRITICAL ELEMENTS AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, AND
 APPROPRIATE ARRANGEMENTS
 
    FOR EMPLOYEES ADVERSELY AFFECTED BY ACTIONS TAKEN UNDER THOSE
 STANDARDS, ARE SUBJECT TO
 
    BARGAINING. THIS IS CONSISTENT WITH THE MANDATE OF CONGRESS AS
 EXPRESSED IN SECTION 4302 THAT
 
    PERFORMANCE APPRAISAL SYSTEMS MUST ENCOURAGE EMPLOYEE PARTICIPATION
 IN THE ESTABLISHMENT OF
 
    PERFORMANCE STANDARDS.
 
    WITH FURTHER REFERENCE TO PROCEDURES, OPM SUGGESTED AN EXCLUSIVE
 REPRESENTATIVE COULD
 
    NEGOTIATE WITH REGARD TO THE PROCESS BY WHICH CRITICAL ELEMENTS AND
 PERFORMANCE STANDARDS ARE
 
    COMMUNICATED TO EMPLOYEES, PERIODIC APPRAISALS AT LEAST ON AN ANNUAL
 BASIS, THE MANNER IN
 
    WHICH THE PERFORMANCE OF EMPLOYEES ON DETAIL WILL BE APPRAISED, THE
 MANNER IN WHICH AN
 
    EMPLOYEE'S DISAGREEMENT WITH HIS OR HER PERFORMANCE APPRAISAL WILL BE
 REVIEWED, AND THE
 
    PROCESS BY WHICH PROPOSED PERFORMANCE STANDARDS WILL BE REVIEWED
 WITHIN THE AGENCY.  CREATIVE
 
    APPROACHES TO COLLECTIVE BARGAINING MAY EXPAND THE POSSIBILITIES
 SUGGESTED.  THE STATED
 
    EXAMPLES REFLECT THE WIDE RANGE OF EMPLOYEE PARTICIPATION POSSIBLE
 THROUGH NEGOTIATION WITHIN
 
    UNITS OF EXCLUSIVE RECOGNITION AND THE VARIETY OF PROTECTIONS FOR
 EMPLOYEES WHICH MAY BE
 
    NEGOTIATED AS A PART OF SUCH SYSTEMS.
 
    THEREFORE, THE UNION'S PROPOSAL WOULD REQUIRE NEGOTIATION ON THE
 ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS AND TO THAT EXTENT
 IT IS OUTSIDE THE DUTY TO BARGAIN.  HOWEVER, IF THE UNION'S PROPOSAL,
 WHICH, AS PREVIOUSLY INDICATED, IS CONCERNED WITH VARIOUS ASPECTS OF
 PERFORMANCE APPRAISAL SYSTEMS AND STANDARDS AS THEY RELATE TO
 PERFORMANCE APPRAISAL, WERE REVISED TO BE CONSISTENT WITH THE DECISION
 HEREIN AND WITH LAW AND REGULATION, SUCH PROPOSAL WOULD BE WITHIN THE
 DUTY TO BARGAIN.  IN PARTICULAR, UNDER THE DECISION HEREIN, FOR EXAMPLE,
 A PROPOSAL WHICH REQUIRED ADVANCE NOTICE TO THE UNION OF PROPOSED
 CHANGES IN PERFORMANCE STANDARDS AND CRITICAL ELEMENTS AND AN
 OPPORTUNITY FOR THE UNION TO COMMENT THEREON, AND WHICH IS OTHERWISE
 CONSISTENT WITH LAW AND REGULATION, WOULD BE WITHIN THE AGENCY'S DUTY TO
 BARGAIN UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ A SECOND PROPOSAL, ORIGINALLY PART OF THE APPEAL IN THIS CASE,
 WAS WITHDRAWN BY THE UNION AND IS NOT BEFORE THE AUTHORITY.
 
    /2/ SECTION 7106(A)(2)(A) AND (B) (5 U.S.C. 7106(A)(2)(A) AND (B))
 PROVIDES AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
 AGENCY --
 
   *          *          *          *
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS --
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /3/ SEE, E.G., NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
 THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980) AT 10-11
 OF THE DECISION;  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981) AT 6-7
 OF THE DECISION.
 
    /4/ SEE, E.G., BUREAU OF THE PUBLIC DEBT, ID., AT 11-12 OF THE
 DECISION;  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO.
 120(1980) AT 7-11 OF THE DECISION;  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE COMMISSION, BOSTON
 REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA NO. 92(1980).
 
    /5/ AGENCY STATEMENT OF POSITION AT 2.
 
    /6/ UNION RESPONSE AT 8.
 
    /7/ THE UNION PROPOSAL AT ISSUE IN AFGE, LOCAL 32 REFERRED TO ABOVE,
 WHICH THE PARTIES IN THAT CASE INTERPRETED AS REQUIRING NEGOTIATIONS ON
 THE ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS, PROVIDED AS
 FOLLOWS:
 
    SECTION 6.  EMPLOYEES SHALL PARTICIPATE IN ESTABLISHING PERFORMANCE
 STANDARDS THROUGH
 
    COLLECTIVE BARGAINING, TO THE EXTENT THIS MATTER IS WITHIN THE SCOPE
 OF BARGAINING.
 
    /8/ SECTION 7106(B)(2) AND (3) (5 U.S.C. 7106(B)(2) AND (3)) PROVIDES
 AS FOLLOWS:
 
    SECTION 7106.  MANAGEMENT RIGHTS
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING --
 
   *          *          *          *
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.