American Federation of Government Employees, Local 1923 (Union) and Social Security Administration (Agency)

 6 FLRA No. 31
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1923
 Union
 
 and
 
 SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
                                            Case No. O-AR-65
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR JACOB SEINDENBERG FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE AGENCY'S ASSOCIATE COMMISSIONER FOR MANAGEMENT, BUDGET, AND
 PERSONNEL ISSUED A MEMORANDUM NOTIFYING AGENCY MANAGEMENT OFFICIALS THAT
 THE AGENCY, PURSUANT TO OFFICE OF PERSONNEL MANAGEMENT REGULATIONS
 IMPLEMENTING TITLE II OF THE CIVIL SERVICE REFORM ACT (CSRA), WAS
 PLANNING TO DEVELOP CRITICAL ELEMENTS AND PERFORMANCE STANDARDS FOR ALL
 JOBS WHICH HAVE STANDARD POSITION DESCRIPTIONS.  THE UNION, IN RESPONSE
 TO THIS MEMORANDUM, STATED ITS VIEW THAT "THE 'PERFORMANCE APPRAISAL
 SYSTEM' IN ITS ENTIRETY INCLUDING THE DESIGN OF PERFORMANCE STANDARDS
 AND IDENTIFYING CRITICAL ELEMENTS" IS SUBJECT TO COLLECTIVE BARGAINING,
 AND REQUESTED THAT THE AGENCY NEGOTIATE CONCERNING ITS ESTABLISHMENT OF
 SUCH A SYSTEM.  IN REPLY TO THE UNION'S REQUEST FOR NEGOTIATIONS, THE
 AGENCY INDICATED ITS WILLINGNESS TO BARGAIN ON THE IMPACT AND
 IMPLEMENTATION OF THE PERFORMANCE APPRAISAL SYSTEM AS DEVELOPED BY THE
 AGENCY, BUT STATED THAT THE ESTABLISHMENT OF PERFORMANCE STANDARDS AND
 THE IDENTIFICATION OF CRITICAL ELEMENTS ARE NOT NEGOTIABLE UNDER SECTION
 7106 OF THE STATUTE.  THE UNION FILED A GRIEVANCE, CLAIMING, AMONG OTHER
 THINGS, THAT THE AGENCY'S REFUSAL TO NEGOTIATE ON THE ESTABLISHMENT OF
 ITS PERFORMANCE APPRAISAL SYSTEM VIOLATED ARTICLE 18, "PERFORMANCE
 APPRAISALS," OF THE PARTIES' GENERAL AGREEMENT.  THAT PORTION OF THE
 GENERAL AGREEMENT PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SECTION E.  THE ADMINISTRATION AND THE UNION WILL MEET AND CONFER IN
 A MANNER CONSISTENT
 
    WITH EXECUTIVE ORDER 11491, AS AMENDED, ON THE IMPLEMENTATION OF
 CHANGES OR MODIFICATIONS TO
 
    THE EVALUATION/APPRAISAL SYSTEM SO FAR AS THEY AFFECT HEADQUARTERS
 EMPLOYEES.
 
    UNABLE TO RESOLVE THE MATTER, THE PARTIES SUBMITTED THE GRIEVANCE TO
 ARBITRATION.
 
    AFTER FIRST FINDING THAT THE GRIEVANCE WAS ARBITRABLE, THE ARBITRATOR
 ADDRESSED THE ISSUE OF WHETHER THE AGENCY WAS REQUIRED "TO NEGOTIATE
 WITH THE UNION OVER THE ESTABLISHMENT OF A PERFORMANCE APPRAISAL
 SYSTEM(S) MANDATED BY THE CIVIL SERVICE REFORM ACT OF 1978." THE
 ARBITRATOR CHARACTERIZED THIS ISSUE AS PRESENTING THE QUESTION OF
 WHETHER SUCH PERFORMANCE STANDARDS AND CRITICAL ELEMENTS ARE NEGOTIABLE
 MATTERS UNDER THE PARTIES' AGREEMENT AND THE CIVIL SERVICE REFORM ACT OF
 1978.
 
    THE ARBITRATOR AGREED WITH THE UNION THAT THE AGENCY HAD VIOLATED
 ARTICLE 18, SECTION E OF THE GENERAL AGREEMENT, STATING AS FOLLOWS:
 
    ON THE BASIS OF THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE,
 WE FIND THAT
 
    ESTABLISHING A NEW PERFORMANCE APPRAISAL PLAN OR MODIFYING THE
 EXISTING APPRAISAL/EVALUATION
 
    PLAN IS A MATTER TO BE NEGOTIATED BY THE AGENCY AND THE LOCAL UNION.
 
    WE REACHED THIS CONCLUSION BOTH BECAUSE ARTICLE 18, SECTION E OF THE
 CURRENT GENERAL
 
    AGREEMENT PROVIDES FOR THE PARTIES TO MEET AND CONFER ON
 MODIFICATIONS TO THE EMPLOYEE
 
    APPRAISAL PERFORMANCE SYSTEM, AND BECAUSE THE EVIDENCE REVEALS THAT
 THE PARTIES HAVE BARGAINED
 
    IN THE PAST ABOUT EFFECTING SUBSTANTIVE CHANGES IN THEN EXISTING
 EMPLOYEE APPRAISAL
 
    PERFORMANCE SYSTEMS.
 
    WE FIND THAT WHEN THE AGENCY SEEKS TO EFFECT A PERFORMANCE APPRAISAL
 SYSTEM PURSUANT TO THE
 
    MANDATE OF THE 1978 CIVIL SERVICE REFORM ACT THAT IT IS MODIFYING THE
 EXISTING SYSTEM AND ITS
 
    ACTIONS ARE SUBSUMED UNDER SECTION E OF ARTICLE 18.
 
   .          .          .          .
 
 
    WE DO NOT FIND IT NECESSARY, IN LIGHT OF THE CITED CONTRACTUAL
 PROVISIONS AND THE
 
    PARTIES' BARGAINING HISTORY ON THE SUBJECT, TO DISCUSS THE IMPACT, IF
 ANY, OF THE
 
    PARTIES' BARGAINING RIGHTS AND PRIVILEGES, ON THIS SUBJECT CREATED BY
 THE PASSAGE OF THE 1978
 
    CIVIL SERVICE REFORM ACT.
 
    IN THIS REGARD, THEREFORE, THE ARBITRATOR'S AWARD WAS THAT THE
 SUBJECT MATTER OF THE PARTIES' DISPUTE, I.E., ESTABLISHING A NEW
 PERFORMANCE APPRAISAL PLAN OR MODIFYING THE EXISTING
 APPRAISAL/EVALUATION PLAN, IS NEGOTIABLE.
 
    THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 5 CFR PART 2425.  /2/ THE UNION FILED AN OPPOSITION.
 
    THE ESSENCE OF THE AGENCY'S EXCEPTIONS IS THAT THE ARBITRATOR'S AWARD
 VIOLATES LAW, SPECIFICALLY, 5 U.S.C. 4302 /3/ AND THE MANAGEMENT RIGHTS
 PROVISIONS OF SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.  /4/ THE
 AGENCY ARGUES IN SUPPORT OF ITS EXCEPTIONS THE ARBITRATOR ERRED IN
 FINDING, BASED ON THE LANGUAGE OF AND THE BARGAINING HISTORY ERRED IN
 FINDING, BASED ON THE LANGUAGE OF AND THE BARGAINING HISTORY RELATING TO
 THE PARTIES' CURRENT GENERAL AGREEMENT, THAT IT HAD AN OBLIGATION TO
 NEGOTIATE WITH THE UNION ON THE PERFORMANCE APPRAISAL SYSTEM(S) REQUIRED
 BY THE CSRA.  THUS, THE AGENCY ASSERTS THAT THE AWARD WOULD REQUIRE THE
 AGENCY TO NEGOTIATE ON THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE
 ESTABLISHMENT OF PERFORMANCE STANDARDS CONTRARY TO ITS RIGHTS UNDER
 SECTION 7106(A) OF THE STATUTE TO DIRECT EMPLOYEES AND TO ASSIGN WORK.
 
    THE AUTHORITY ADDRESSED THE OBLIGATION OF AN AGENCY TO BARGAIN, AND
 THE EXTENT TO WHICH AN AGENCY MUST BARGAIN, IN CREATING A PERFORMANCE
 APPRAISAL SYSTEM UNDER CHAPTER 43 OF TITLE 5, UNITED STATES CODE, IN
 NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
 OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980) AND IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO.  120(1980), BOTH OF WHICH
 ISSUED AFTER THE ARBITRATOR'S DECISION HEREIN.  IN THOSE DECISIONS THE
 AUTHORITY FOUND THAT PROPOSALS WHICH WOULD REQUIRE NEGOTIATIONS
 CONCERNING THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT
 AND CONTENT OF PERFORMANCE STANDARDS DIRECTLY INTERFERED WITH THE
 EXERCISE OF MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK
 UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE AND, THEREFORE, WERE
 NOT WITHIN THE DUTY TO BARGAIN.  HOWEVER, THE AUTHORITY ALSO POINTED OUT
 IN THOSE DECISIONS THAT NOT ALL MATTERS PERTAINING TO THE DEVELOPMENT OF
 PERFORMANCE APPRAISAL SYSTEMS ARE OUTSIDE THE DUTY TO BARGAIN.  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.  /5/
 
    ACCORDINGLY, TO THE EXTENT THAT THE ARBITRATOR'S AWARD WOULD REQUIRE
 THE AGENCY, IN ESTABLISHING A PERFORMANCE APPRAISAL SYSTEM, TO NEGOTIATE
 WITH THE UNION ON THE ESTABLISHMENT OF PERFORMANCE STANDARDS AND THE
 IDENTIFICATION OF CRITICAL ELEMENTS, IT IS CONTRARY TO SECTION 7106 OF
 THE STATUTE.  HOWEVER, TO THE EXTENT THAT THE AWARD WOULD REQUIRE
 NEGOTIATION ON VARIOUS OTHER ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS,
 IT DOES NOT VIOLATE SECTION 7106.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE AWARD OF THE ARBITRATOR IS HEREBY
 MODIFIED TO READ AS FOLLOWS:
 
    (2) DISPUTE NEGOTIABLE, TO THE EXTENT CONSISTENT WITH APPLICABLE
 DECISIONS OF THE FEDERAL
 
    LABOR RELATIONS AUTHORITY.
 
    AS SO MODIFIED, THE AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JUNE 25, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES AS FOLLOWS:
 
    SEC. 7122.  EXCEPTIONS TO ARBITRAL AWARDS
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ ALTHOUGH THE UNION'S EXCEPTION WAS FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ 5 U.S.C. 4302(A) PROVIDES FOR THE ESTABLISHMENT OF PERFORMANCE
 APPRAISAL SYSTEMS BY EACH AGENCY.
 
    /4/ 5 U.S.C. 7106(A) PROVIDES, AS RELEVANT HEREIN, 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(.)
 
    /5/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656
 AND FEDERAL TRADE COMMISSION, BOSTON REGIONAL OFFICE, 5 FLRA NO.
 70(1981).