National Treasury Employees Union (Union) and Department of Health and Human Services, Region 10 (Agency)
[ v07 p727 ]
07:0727(115)NG
The decision of the Authority follows:
7 FLRA No. 115
NATIONAL TREASURY EMPLOYEES UNION
Union
and
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION 10
Agency
Case No. O-NG-299
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),
AND PRESENTS ISSUES CONCERNING THE NEGOTIABILITY OF FOUR PROPOSALS
INVOLVING "UNACCEPTABLE PERFORMANCE PROCEDURES" (SET FORTH IN THE
APPENDIX) AND ONE PROPOSAL WITH RESPECT TO "EQUAL EMPLOYMENT
OPPORTUNITY." UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.
BASED UPON THE RECORD, PROPOSAL 1 WOULD OBLIGATE MANAGEMENT TO
NEGOTIATE CRITICAL ELEMENTS; PROPOSAL 2 WOULD SET STANDARDS FOR
CRITICAL ELEMENTS; PROPOSAL 3 WOULD, AS A CONDITION PRECEDENT TO
IMPLEMENTING CRITICAL ELEMENTS, REQUIRE MANAGEMENT TO ESTABLISH THAT ALL
CRITICAL ELEMENTS ARE IN FACT CRITICAL TO THE EMPLOYEE'S JOB; AND
PROPOSAL 4 WOULD GIVE THE UNION THE RIGHT TO REOPEN NEGOTIATIONS ON
CRITICAL ELEMENTS ONE YEAR AFTER INITIAL IMPLEMENTATION.
IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), APPEAL DOCKETED, NO.
80-1895 (D.C. CIR. AUG. 4, 1980), THE AUTHORITY HELD THAT A PROPOSAL TO
ESTABLISH A PARTICULAR CRITICAL ELEMENT AND PERFORMANCE STANDARD WOULD
DIRECTLY INTERFERE 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, /1/ AND THEREFORE WAS NOT WITHIN THE DUTY TO BARGAIN. SINCE
ALL FOUR PROPOSALS IN THIS CASE WOULD LIKEWISE INTERFERE WITH THOSE
MANAGEMENT RIGHTS, THEY BEAR NO DISPOSITIVE DIFFERENCE FROM THE PROPOSAL
HELD NOT TO BE WITHIN THE DUTY TO BARGAIN IN THE BUREAU OF THE PUBLIC
DEBT CASE. THEREFORE, FOR THE REASONS FULLY SET FORTH IN BUREAU OF THE
PUBLIC DEBT, PROPOSALS 1 THROUGH 4 MUST ALSO BE HELD NOT TO BE WITHIN
THE DUTY TO BARGAIN. SEE ALSO AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C., 3 FLRA NO. 120(1980), AT PAGES 4-5.
UNION PROPOSAL 5
ARTICLE 38-- "EQUAL EMPLOYMENT OPPORTUNITY"
B. VACANCY ANNOUNCEMENTS FOR UPWARD MOBILITY POSITIONS WILL BE
CIRCULATED WITHIN THE HEW
REGION X REGIONAL OFFICE, WITH NO APPLICATIONS ACCEPTED FROM OUTSIDE
THAT AREA OF
CONSIDERATION.
THIS PROPOSAL ON ITS FACE EXPRESSLY PROVIDES THAT MANAGEMENT COULD
NOT ACCEPT ANY APPLICATIONS WITH RESPECT TO VACANT POSITIONS FROM ANY
PERSON OUTSIDE THE AGENCY. ACCORDINGLY, WHILE THE UNION ASSERTS THAT
MANAGEMENT MERELY WOULD BE REQUIRED "TO INITIALLY CONSIDER ONLY THOSE
EMPLOYEES WITHIN REGION S" BUT WOULD NOT BE HAMPERED IN ITS ABILITY TO
MAKE A SELECTION IN FILLING ANY POSITION IT HAS DECIDED TO FILL, THE
PROPOSAL CLEARLY WOULD PREVENT MANAGEMENT FROM CONSIDERING AND
THEREFORE
SELECTING FROM ANY APPROPRIATE SOURCE IN FILLING UPWARD MOBILITY
POSITIONS. THUS, THE DISPUTED PROPOSAL CONFLICTS WITH SECTION
7106(A)(2)(C) OF THE STATUTE /2/ AND, HENCE, IS NOT WITHIN THE DUTY TO
BARGAIN. SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND
NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA
NO. 60(1980) /3/
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW BY, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JANUARY 22, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
UNION PROPOSALS 1-4
ARTICLE 19-- "UNACCEPTABLE PERFORMANCE PROCEDURES"
PROPOSAL 1
THE EMPLOYER AGREES TO FULLY NEGOTIATE ALL CRITICAL ELEMENTS WITH THE
UNION PRIOR TO IMPLEMENTATION. AT THAT TIME THE CRITICALNESS OF EACH
ASPECT OF A CRITICAL ELEMENT WILL BE EXPLAINED TO THE UNION AND
DOCUMENTED WITH EVIDENCE, SUPPLIED AT NO COST TO THE UNION.
PROPOSAL 2
THE EMPLOYER AND THE UNION AGREE THAT THE FOLLOWING STANDARDS AND
PROCEDURES SHALL BE USED IN DRAWING UP CRITICAL ELEMENTS.
(A) CRITICAL ELEMENTS SHALL RELATE ONLY TO TASKS INVOLVING AT LEAST A
MAJORITY OF AN EMPLOYEE'S WORK TIME.
(B) CRITICAL ELEMENTS SHALL ONLY BE ELEMENTS WHICH ARE IN FACT
CRITICAL TO THE PERFORMANCE OF THE JOB.
(C) CRITICAL ELEMENTS SHALL BE DEFINED IN TERMS OF MEASURABLE,
OBSERVABLE BEHAVIOR SO THAT AN OBJECTIVE EVALUATION OF AN EMPLOYEE'S
PERFORMANCE MAY BE MADE. UNLESS THE DEFINITION OF A CRITICAL ELEMENT
QUANTITATIVELY IMPOSES SPECIFIC REQUIREMENTS, THE EMPLOYEE RETAINS THE
DISCRETION AS TO THE INTERPRETATION OF THE CRITICAL ELEMENTS.
(D) CRITICAL ELEMENTS SHALL BE MUTUALLY EXCLUSIVE AND EXPLICITLY
DEFINED. CRITICAL ELEMENTS SHALL NOT BE DEFINED OR APPLIED IN A MANNER
TO BE AT CROSS PURPOSES WITH EACH OTHER.
(E) IF A CRITICAL ELEMENT HAS MORE THAN ONE ASPECT OR COMPONENT THEN
THE EMPLOYEE WILL BE DEEMED AS FAILING TO MEET THE CRITICAL ELEMENT, IF
AND ONLY IF THE EMPLOYEE IS DEFICIENT IN ALL ASPECTS OF THE CRITICAL
ELEMENT.
(F) THE LINE BETWEEN UNACCEPTABLE AND MINIMALLY ACCEPTABLE
PERFORMANCE SHALL BE DEFINED PRECISELY AND DISTINGUISHED.
(G) CRITICAL ELEMENTS, AFTER FULL NEGOTIATION AS REFERRED TO IN
SECTION 4 ABOVE, WILL BE PUBLISHED IN THE POSITION DESCRIPTION OF EACH
EMPLOYEE. CRITICAL ELEMENTS WILL BE LISTED IN ORDER OF PRIORITY IN THE
POSITION DESCRIPTION. THIS INFORMATION SHALL BE SUPPLIED TO EACH
EMPLOYEE IN HIS/HER CURRENT POSITION AND AT THE TIME OF TRANSFER OR
PROMOTION TO A DIFFERENT POSITION.
(H) EMPLOYEES SHALL RECEIVE COPIES OF THE CRITICAL ELEMENTS OF ALL
SUPERVISORS IN THEIR CHAIN OF COMMAND. THIS INFORMATION SHALL BE
SUPPLIED TO EACH EMPLOYEE IN HIS/HER CURRENT POSITION AND AT THE TIME OF
TRANSFER OR PROMOTION TO A DIFFERENT POSITION. THE EMPLOYER AGREES TO
SUPPLY THE UNION WITH COPIES, FREE OF CHARGE, OF THE CRITICAL ELEMENTS
FOR EACH SUPERVISORY OR MANAGERIAL POSITION WITHIN THE AGENCY, ONCE A
YEAR.
PROPOSAL 3
THE BURDEN WILL BE ON THE EMPLOYER TO ESTABLISH THAT ALL ELEMENTS ARE
CRITICAL TO THE EMPLOYEE'S JOB AS OPPOSED TO MERELY BEING CRITICAL TO
THAT POSITION IN GENERAL. THE EMPLOYER WILL HAVE THE ADDITIONAL BURDEN
OF PROVING THAT HE MADE KNOWN TO THE EMPLOYEE AT THE BEGINNING OF THE
EVALUATION PERIOD THAT CRITICAL ELEMENT OF THAT JOB AND THE STANDARDS,
OBJECTIVELY STATED, THE EMPLOYEE MUST MEET TO PERFORM ACCEPTABLY IN THAT
CRITICAL ELEMENT. THE EMPLOYER MUST MEET ANY AND ALL BURDEN IT CARRIES
IN THIS MANNER THROUGH THE PREPONDERANCE OF EVIDENCE.
PROPOSAL 4
AFTER FULLY NEGOTIATING ALL CRITICAL ELEMENTS PURSUANT TO SECTION 4
ABOVE, THE EMPLOYER AND THE UNION AGREE TO REVIEW THE CRITICAL ELEMENTS
AFTER ONE YEAR WITH THE OPTION OF THE UNION TO OPEN NEGOTIATIONS TO
CHANGE THOSE ELEMENTS.
--------------- 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 . . . DIRECT . . . EMPLOYEES . . . ;
(B) TO ASSIGN WORK . . . .
/2/ SECTION 7106(A)(2)(C) OF THE STATUTE 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--
(C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS FROM--
(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR
(II) ANY OTHER APPROPRIATE SOURCE . . . .
/3/ COMPARE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
SERVICE, 7 FLRA NO. 42(1981).