National Federation of Federal Employees, Local 1028 (Union) and Department of the Army, Corps of Engineers, Norfolk District, Norfolk, Virginia (Activity)   

 7 FLRA No. 17
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1028
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, CORPS
 OF ENGINEERS, NORFOLK DISTRICT,
 NORFOLK, VIRGINIA
 Activity
 
                                            Case No. O-NG-324
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN 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.) THE ISSUE PRESENTED IS THE NEGOTIABILITY OF TWO
 UNION PROPOSALS.
 
                             UNION PROPOSAL I
 
    THERE SHOULD BE NO MORE THAN 5 CRITICAL ELEMENTS PER STANDARD.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONFLICTS WITH SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE, AS ALLEGED BY THE AGENCY, AND
 THEREFORE IS NOT WITHIN THE DUTY TO BARGAIN.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL CONFLICTS WITH SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE.  /1/ ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10(1981), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE
 DISPUTED PROPOSAL BE DISMISSED.
 
    REASONS:  WHILE THE PRECISE MEANING OF THE DISPUTED PROPOSAL IS
 UNCLEAR FROM ITS LITERAL LANGUAGE, AS NOTED BY THE AGENCY, THE UNION'S
 EXPLANATION IS THAT "(T)HERE MAY BE MANY ELEMENTS OF A JOB . . . BUT
 ONLY A FEW OF THEM ARE SO IMPORTANT AS TO BE REGARDED AS 'CRITICAL' TO
 THE POSITION . . .  WE CONTEND THAT OUR PROPOSAL SIMPLY ESTABLISHES A
 PROCEDURE WHICH WOULD BE FOLLOWED IN SETTING UP 'CRITICAL ELEMENTS.'"
 ACCORDINGLY, THE UNION CONTENDS THAT THE DISPUTED PROPOSAL CONSTITUTES A
 NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE /2/
 INASMUCH AS IT DOES NOT SEEK TO ESTABLISH THE SUBSTANTIVE CONTENT OF THE
 PERFORMANCE STANDARDS THEMSELVES OR TO IDENTIFY THE CRITICAL ELEMENTS OF
 ANY POSITION.  ON THE OTHER HAND, THE AGENCY ASSERTS THAT THE PROPOSAL
 IS NOT SIMPLY PROCEDURAL IN NATURE BUT CONFLICTS WITH MANAGEMENT'S
 RETAINED RIGHTS TO DIRECT AND ASSIGN WORK TO ITS EMPLOYEES.  IN THIS
 REGARD, THE AGENCY CONTENDS THAT THE PROPOSAL WOULD DIRECTLY AFFECT
 MANAGEMENT'S ESTABLISHMENT OF PERFORMANCE STANDARDS AND IDENTIFICATION
 OF CRITICAL ELEMENTS BY IMPOSING AN ARTIFICIAL AND ARBITRARY LIMIT ON
 THE NUMBER OF SUCH STANDARDS OR ELEMENTS, AND THEREFORE IS OUTSIDE THE
 DUTY TO BARGAIN UNDER THE STATUTE.  THE AUTHORITY CONCLUDES, FOR THE
 REASONS SET FORTH BELOW, THAT UNION PROPOSAL I WOULD DENY MANAGEMENT'S
 RIGHT TO ESTABLISH CRITICAL ELEMENTS FOR POSITIONS WITHIN THE BARGAINING
 UNIT AND THEREFORE CONFLICTS WITH SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE.
 
    IN ITS DECISION IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT
 OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), THE
 AUTHORITY HELD A PROPOSAL WHICH WOULD HAVE IDENTIFIED A PARTICULAR
 CRITICAL ELEMENT OF A POSITION AND ESTABLISHED THE STANDARD OF
 PERFORMANCE FOR THAT ELEMENT WAS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT
 WAS INCONSISTENT WITH MANAGEMENT'S STATUTORY AUTHORITY TO DIRECT ITS
 EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE.  THEREAFTER, 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),
 THE AUTHORITY, RELYING UPON BUREAU OF THE PUBLIC DEBT, FOUND THAT A
 PROPOSAL WHICH WOULD PRECLUDE MANAGEMENT FROM DESIGNATING AS A CRITICAL
 ELEMENT ANY COMPONENT OF A JOB OTHER THAN A GRADE-CONTROLLING COMPONENT
 WAS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD DIRECTLY PREVENT
 MANAGEMENT FROM EXERCISING ITS STATUTORY RIGHTS TO DIRECT EMPLOYEES AND
 ASSIGN WORK BY IDENTIFYING AND ESTABLISHING THE CRITICAL ELEMENTS OF
 POSITIONS.
 
    THE DECISIONS IN BUREAU OF THE PUBLIC DEBT AND SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION ARE CONTROLLING AS TO THE DISPUTED PROPOSAL IN
 THIS CASE BECAUSE THE PROPOSAL AT ISSUE HEREIN WOULD PREVENT MANAGEMENT
 FROM EXERCISING ITS STATUTORY AUTHORITY TO DIRECT EMPLOYEES AND ASSIGN
 WORK BY ESTABLISHING THE CRITICAL ELEMENTS OF POSITIONS WITHIN THE
 BARGAINING UNIT.  THUS, JUST AS MANAGEMENT IN SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION WOULD HAVE BEEN LIMITED TO ESTABLISHING ONLY
 CRITICAL ELEMENTS THAT WERE GRADE-CONTROLLING, MANAGEMENT IN THE PRESENT
 CASE WOULD BE LIMITED TO ESTABLISHING NO MORE THAN 5 CRITICAL ELEMENTS
 FOR ANY BARGAINING UNIT POSITION EVEN WHERE MANAGEMENT IDENTIFIED 6 OR
 MORE CRITICAL ELEMENTS FOR SUCH POSITION.  ACCORDINGLY, FOR THE REASONS
 MORE FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT, THE INSTANT PROPOSAL
 IS OUTSIDE THE DUTY TO BARGAIN.  /3/
 
                             UNION PROPOSAL II
 
    THE UNION ALSO SUBMITTED A PROPOSAL WHICH PROVIDED THAT, "(I)F
 REQUESTED, EMPLOYEES WILL BE ALLOWED TO HAVE A UNION REPRESENTATIVE
 PRESENT AT DISCUSSION WITH SUPERVISOR ON PERFORMANCE STANDARDS AND
 CRITICAL ELEMENTS." THE RECORD INDICATES THAT THE ACTIVITY THEREAFTER
 REPEATEDLY REFUSED TO AGREE WITH THE CONTENT OF THE SUBJECT PROPOSAL BUT
 DID NOT DECLARE THE PROPOSAL TO BE NONNEGOTIABLE.  /4/ WHEN THE UNION
 SUBSEQUENTLY SOUGHT A NEGOTIABILITY DETERMINATION FROM THE AUTHORITY
 WITH RESPECT TO THE FOREGOING PROPOSAL, THE ACTIVITY AGAIN INDICATED IN
 ITS STATEMENT OF POSITION THAT IT HAD NEVER DECLARED THE UNION'S
 PROPOSAL NONNEGOTIABLE, BUT, AS ALREADY STATED, INSTEAD REFUSED TO AGREE
 WITH ITS CONTENTS.  ACCORDINGLY, THE ACTIVITY CONTENDS THAT THE UNION'S
 PETITION FOR REVIEW WITH RESPECT TO THIS PROPOSAL IS IMPROPERLY BEFORE
 THE AUTHORITY FOR DETERMINATION AND SHOULD BE DISMISSED.
 
    THUS, IT IS CLEAR THAT THE PARTIES ARE IN DISAGREEMENT CONCERNING THE
 MERITS OF UNION PROPOSAL II BUT ARE NOT IN DISPUTE AS TO WHETHER UNION
 PROPOSAL II IS NONNEGOTIABLE, I.E., INCONSISTENT WITH LAW, RULE OR
 REGULATION.  ACCORDINGLY, NO ISSUES ARE RAISED WITH RESPECT TO UNION
 PROPOSAL II THAT ARE APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET
 FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.1 ET SEQ.).  RATHER, THE SUBSTANCE OF
 THE PARTIES' DISPUTE CONCERNS AN APPARENT IMPASSE IN NEGOTIATIONS
 APPROPRIATE FOR RESOLUTION BY THE FEDERAL SERVICE IMPASSES PANEL UNDER
 PROCEDURES SET FORTH IN SECTION 7119 OF THE STATUTE AND PARTS 2470 AND
 2471 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    BASED ON THE FOREGOING, INASMUCH AS THE NEGOTIABILITY APPEAL WITH
 RESPECT TO UNION PROPOSAL II DOES NOT MEET THE CONDITIONS FOR REVIEW SET
 FORTH IN SECTION 7117 OF THE STATUTE AND SECTION 2424.1 OF THE
 AUTHORITY'S RULES AND REGULATIONS, IT IS ORDERED THAT THE UNION'S APPEAL
 BE DISMISSED TO THAT EXTENT.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN PERTINENT PART, 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(.)
 
    /2/ SECTION 7106(B)(2) PROVIDES:
 
    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;  . . .
 
    /3/ THE AUTHORITY'S DECISION IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C., 3 FLRA NO.  120(1980), WITH RESPECT TO UNION PROPOSAL
 5, IS INAPPLICABLE INASMUCH AS THE DISPUTED PROPOSAL HEREIN WOULD NOT
 MERELY PRESCRIBE GENERAL, NONQUANTITATIVE CRITERIA UNDER WHICH AN
 ARBITRATOR COULD REVIEW THE APPLICATION TO AN EMPLOYEE OF A PERFORMANCE
 STANDARD ESTABLISHED BY AGENCY MANAGEMENT BUT RATHER, AS ALREADY STATED,
 WOULD PRECLUDE MANAGEMENT FROM IDENTIFYING AND ESTABLISHING CRITICAL
 ELEMENTS UNDER CERTAIN CIRCUMSTANCES.
 
    /4/ THE ACTIVITY'S EXPRESSED REASONS FOR DISAGREEING WITH THE UNION'S
 PROPOSAL WERE THAT SUCH DISCUSSIONS BETWEEN MANAGERS AND EMPLOYEES IN
 SETTING PERFORMANCE STANDARDS ARE COUNSELING IN NATURE, DO NOT AFFECT
 UNIT MEMBERS AS A GROUP, AND WOULD BE COUNTERPRODUCTIVE.