National Federation of Federal Employees, Local 1497 (Union) and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado (Agency) 

 6 FLRA No. 5
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1497
 Union
 
 and
 
 HEADQUARTERS, LOWRY TECHNICAL
 TRAINING CENTER (ATC), LOWRY
 AIR FORCE BASE, COLORADO
 Agency
 
                                            Case No. O-NG-159
 
                 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) AND INVOLVES THE
 NEGOTIABILITY OF THE FOLLOWING PROPOSAL:
 
                              UNION PROPOSAL
 
    THE EMPLOYER AND THE UNION AGREE THAT THE DEVELOPMENT OF PERFORMANCE
 STANDARDS WILL BE A
 
    JOINT EFFORT.  EMPLOYEES HAVING THE SAME POSITION DESCRIPTION SHALL
 HAVE THE SAME PERFORMANCE
 
    STANDARD.  EMPLOYEES AND THEIR SUPERVISORS SHALL DEVELOP MUTUALLY
 AGREEABLE PERFORMANCE
 
    STANDARDS.  WHEN A MUTUALLY AGREEABLE PERFORMANCE STANDARD IS NOT
 ACHIEVED, A PANEL OF SUBJECT
 
    MATTER SPECIALISTS APPOINTED IN EQUAL NUMBERS BY THE EMPLOYER AND THE
 UNION SHALL RESOLVE THE
 
    PROBLEM.
 
    THE PERFORMANCE EVALUATION CRITERIA MUST BE JOB-RELATED AND
 OBJECTIVE.  ONLY THE MORE
 
    CRITICAL ELEMENTS OF A POSITION WILL BE INCLUDED AS EVALUATION
 CRITERIA.  APPRAISAL CRITERIA
 
    SHALL BE DEVELOPED USING THE SAME APPROACH AS SPECIFIED IN SECTION 1
 ABOVE IN DEVELOPING
 
    PERFORMANCE STANDARDS.
 
    IN THE INTEREST OF PROVIDING FOR OBJECTIVITY IN A SUPERVISORY
 APPRAISAL, AN EMPLOYEE SHOULD
 
    HAVE BEEN WORKING UNDER THE EVALUATING SUPERVISOR FOR AT LEAST NINETY
 (90) DAYS.  WHEN THIS IS
 
    NOT THE CASE, PRIOR SUPERVISORY APPRAISALS SHALL BE OBTAINED FOR USE.
 
    SUPERVISORS SHALL KEEP EMPLOYEES ADVISED OF WEAKNESSES IN JOB
 PERFORMANCE AND OF AREAS IN
 
    WHICH EMPLOYEES MAY IMPROVE CHANCES FOR PROMOTION.  COPIES OF ALL
 APPRAISAL STANDARDS SHALL BE
 
    AVAILABLE UPON REQUEST TO THE UNION AND INDIVIDUAL MEMBERS OF THE
 BARGAINING UNIT.
 
    THERE IS HEREBY ESTABLISHED A PERFORMANCE STANDARDS COMMITTEE
 CONSISTING OF A NONVOTING
 
    CHAIRMAN, EXCEPT IN CASE OF TIES, SELECTED BY DCT, THREE MEMBERS
 DESIGNATED BY THE EMPLOYER
 
    AND THREE MEMBERS DESIGNATED BY THE UNION.  THE COMMITTEE SHALL
 DEVELOP PERFORMANCE STANDARDS
 
    FOR PROFESSIONAL AND TECHNICAL POSITIONS WITHIN THE UNIT, AS
 NECESSARY, FOR CONSIDERATION BY
 
    THE CIVILIAN PERSONNEL OFFICER.  THE COMMITTEE SHALL DETERMINE ITS
 OWN METHODS OF OPERATION
 
    AND RULES OF PROCEDURE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE DISPUTED PROPOSAL IS INCONSISTENT WITH
 LAW, I.E., SECTION 7106 OF THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PROPOSAL VIOLATES THE RIGHTS OF
 AGENCY MANAGEMENT TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS
 AMENDED BY 45 F.R. 48575(1980)), IT IS ORDERED THAT THE UNION'S PETITION
 FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE UNION'S PROPOSAL PROVIDES, IN GENERAL, WHEN EMPLOYEES
 AND THEIR SUPERVISOR FAIL TO DEVELOP CRITICAL ELEMENTS AND PERFORMANCE
 STANDARDS WHICH ARE MUTUALLY AGREEABLE, FOR A PANEL AND/OR A COMMITTEE
 TO IDENTIFY CRITICAL ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS
 REQUIRED AS A PART OF A PERFORMANCE APPRAISAL SYSTEM UNDER 5 U.S.C.
 4302.  /1/ WHILE THE RECORD IS NOT PRECISE AS TO HOW THE VARIOUS PARTS
 OF THIS PROPOSAL RELATE TO ONE ANOTHER, THE UNION MAINTAINS THAT THE
 PROPOSAL MUST BE TAKEN AS A WHOLE TO DETERMINE ITS INTENT AND HAS NOT
 REQUESTED THAT THE SEPARATE PARAGRAPHS BE RULED UPON SEPARATELY.  WHEN
 TAKEN AS A WHOLE, THE UNION CLAIMS THE PROPOSAL PROVIDES A NEGOTIABLE
 PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE WHEREBY EMPLOYEES MAY
 PARTICIPATE IN THE DEVELOPMENT OF PERFORMANCE STANDARDS AS REQUIRED BY 5
 U.S.C. 4302.
 
    THIS PROPOSAL, TAKEN AS A WHOLE AS THE UNION DESIRES, WOULD REQUIRE
 THE PANEL AND/OR COMMITTEE TO IDENTIFY "ONLY THE MORE CRITICAL ELEMENTS
 OF A POSITION" AS EVALUATION CRITERIA AND PRECLUDES THE ESTABLISHMENT OF
 DIFFERENT PERFORMANCE STANDARDS FOR EMPLOYEES WITH THE SAME POSITION
 DESCRIPTION.  THEREFORE, THE PROPOSAL AS A WHOLE IS NOT WITHIN THE DUTY
 TO BARGAIN IF THE ABOVE-STATED REQUIREMENTS AS TO IDENTIFICATION OF
 CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE STANDARDS ARE
 INCONSISTENT WITH THE RIGHTS OF AGENCY MANAGEMENT UNDER SECTION 7106 OF
 THE STATUTE.
 
    BY REQUIRING THE DESIGNATION OF ONLY THE MORE CRITICAL ELEMENTS OF A
 POSITION AS EVALUATION CRITERIA, THE PROPOSAL WOULD PRECLUDE THE
 IDENTIFICATION AS EVALUATION CRITERIA OF ANY ELEMENTS OF A POSITION
 WHICH ARE NOT "MORE CRITICAL" WITHIN THE MEANING OF THE PROPOSAL.
 SIMILARLY, BY REQUIRING THAT PERFORMANCE STANDARDS BE THE SAME FOR
 EMPLOYEES HAVING THE SAME POSITION DESCRIPTION, THE PROPOSAL WOULD
 PREVENT THE DETERMINATION THAT THE CONTENT OF PERFORMANCE STANDARDS
 SHOULD BE DIFFERENT EVEN IF THE CIRCUMSTANCES RELATING TO THE JOBS AND
 WORK PERFORMANCE OF SUCH EMPLOYEES WOULD WARRANT THE APPLICATION OF
 DIFFERENT STANDARDS.  THUS, THE PROPOSAL IN THESE RESPECTS BEARS NO
 MATERIAL DIFFERENCE FROM UNION PROPOSAL 1 IN 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).  IN THAT CASE, THE AUTHORITY, 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), HELD THAT A PROPOSAL REQUIRING THAT ONLY GRADE-CONTROLLING
 ELEMENTS OF A POSITION BE IDENTIFIED AS CRITICAL ELEMENTS WAS OUTSIDE
 THE DUTY TO BARGAIN BECAUSE IT WOULD PRECLUDE THE AGENCY FROM
 IDENTIFYING ELEMENTS OF A POSITION WHICH ARE NOT GRADE-CONTROLLING AS
 CRITICAL ELEMENTS.  THE AUTHORITY STATED (AT 3 OF THE DECISION):
 
    THE DECISION IN BUREAU OF THE PUBLIC DEBT IS CONTROLLING AS TO THE
 DISPUTED PORTION OF THE
 
    PROPOSAL IN THE PRESENT CASE BECAUSE THAT PART OF THE PROPOSAL
 EXPRESSLY WOULD PRECLUDE THE
 
    AGENCY FROM ESTABLISHING PARTICULAR CRITICAL ELEMENTS, I.E., THOSE
 WHICH ARE NOT BASED ON
 
    GRADE-CONTROLLING FACTORS FOR A PARTICULAR JOB.  SUCH A LIMITATION
 WOULD DIRECTLY PREVENT
 
    MANAGEMENT FROM EXERCISING ITS STATUTORY AUTHORITY TO DIRECT
 EMPLOYEES AND ASSIGN WORK BY
 
    ESTABLISHING THE CRITICAL ELEMENTS OF POSITIONS.
 
    IN THE SAME MANNER, THE LIMITATIONS STATED IN THE UNION'S PROPOSAL
 HEREIN WOULD PREVENT AGENCY MANAGEMENT FROM EXERCISING ITS STATUTORY
 AUTHORITY TO DIRECT EMPLOYEES AND ASSIGN WORK BY IDENTIFYING THE
 CRITICAL ELEMENTS OF POSITIONS AND ESTABLISHING PERFORMANCE STANDARDS.
 THUS, TAKEN AS A WHOLE, THE UNION'S PROPOSAL DOES NOT ESTABLISH A
 NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE.  RATHER,
 IT WOULD ESTABLISH SUBSTANTIVE LIMITATIONS ON THE AGENCY'S RIGHT TO
 DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF
 THE STATUTE AND, FOR THE REASONS MORE FULLY SET FORTH IN SAINT LAWRENCE
 SEAWAY DEVELOPMENT CORPORATION, SUPRA, AND BUREAU OF THE PUBLIC DEBT,
 SUPRA, IS OUTSIDE THE DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., JUNE 2, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 4302 PROVIDES AS FOLLOWS:
 
    SEC. 4302.  ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
 
    (A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
 SYSTEMS WHICH--
 
    (1) PROVIDE FOR PERIODIC APPRAISALS OF JOB PERFORMANCE OF EMPLOYEES;
 
    (2) ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING PERFORMANCE
 STANDARDS;  AND
 
    (3) USE THE RESULTS OF PERFORMANCE APPRAISALS AS A BASIS FOR
 TRAINING, REWARDING,
 
    REASSIGNING, PROMOTING, REDUCING IN GRADE, RETAINING, AND REMOVING
 EMPLOYEES;
 
    (B) UNDER REGULATIONS WHICH THE OFFICE OF PERSONNEL MANAGEMENT SHALL
 PRESCRIBE, EACH PERFORMANCE APPRAISAL SYSTEM SHALL PROVIDE FOR--
 
    (1) ESTABLISHING PERFORMANCE STANDARDS WHICH WILL, TO THE MAXIMUM
 EXTENT FEASIBLE, PERMIT
 
    THE ACCURATE EVALUATION OF JOB PERFORMANCE ON THE BASIS OF OBJECTIVE
 CRITERIA (WHICH MAY
 
    INCLUDE THE EXTENT OF COURTESY DEMONSTRATED TO THE PUBLIC) RELATED TO
 THE JOB IN QUESTION FOR
 
    EACH EMPLOYEE OR POSITION UNDER THE SYSTEM;
 
    (2) AS SOON AS PRACTICABLE, BUT NOT LATER THAN OCTOBER 1, 1981, WITH
 RESPECT TO INITIAL
 
    APPRAISAL PERIODS, AND THEREAFTER AT THE BEGINNING OF EACH FOLLOWING
 APPRAISAL PERIOD,
 
    COMMUNICATING TO EACH EMPLOYEE THE PERFORMANCE STANDARDS AND THE
 CRITICAL ELEMENTS OF THE
 
    EMPLOYEE'S POSITION;
 
    (3) EVALUATING EACH EMPLOYEE DURING THE APPRAISAL PERIOD ON SUCH
 STANDARDS;
 
    (4) RECOGNIZING AND REWARDING EMPLOYEES WHOSE PERFORMANCE SO
 WARRANTS;
 
    (5) ASSISTING EMPLOYEES IN IMPROVING UNACCEPTABLE PERFORMANCE;  AND
 
    (6) REASSIGNING, REDUCING IN GRADE, OR REMOVING EMPLOYEES WHO
 CONTINUE TO HAVE UNACCEPTABLE
 
    PERFORMANCE BUT ONLY AFTER AN OPPORTUNITY TO DEMONSTRATE ACCEPTABLE
 PERFORMANCE.