American Federation of Government Employees, Local 1858, AFL-CIO (Union) and Army Missile Command, Redstone Arsenal, Alabama (Agency)  

 7 FLRA No. 137
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 LOCAL 1858
 Union
 
 and
 
 U.S. ARMY MISSILE COMMAND,
 REDSTONE ARSENAL,
 ALABAMA
 Agency
 
                                            Case No. O-NG-358
 
                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 RELATING TO THE NEGOTIABILITY OF THREE UNION
 PROPOSALS.  UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
 THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    SECTION 1.  THE PARTIES AGREE THAT CRITICAL ELEMENTS OF A POSITION
 USED FOR PERFORMANCE
 
    APPRAISAL PURPOSES WILL BE BASED ONLY ON THE GRADE CONTROLLING
 FACTORS OF A POSITION
 
    . . . SUCH CRITICAL ELEMENTS FOR PERFORMANCE APPRAISALS WILL BE
 WEIGHTED IN DIRECT PROPORTION
 
    TO THE RELATIVE IMPORTANCE IN GRADE DETERMINATION.
 
    THIS PROPOSAL WOULD REQUIRE THAT THE CRITICAL ELEMENTS OF A POSITION
 BE BASED ONLY ON THE GRADE CONTROLLING FACTORS OF A POSITION IN DIRECT
 PROPORTION TO THEIR RELATIVE IMPORTANCE IN GRADE DETERMINATION.  IN THIS
 RESPECT THE PROPOSAL IS IDENTICAL TO UNION PROPOSAL 1 WHICH WAS BEFORE
 THE AUTHORITY 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), APPEAL
 DOCKETED SUB NOM. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1968
 V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 81-1274 (D.C. CIR. MAR. 11,
 1981) AND WHICH WAS HELD TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE.  /1/ THEREFORE, FOR THE REASONS
 SET FORTH IN DETAIL IN SAINT LAWRENCE SEAWAY, THIS PROPOSAL MUST BE HELD
 TO BE OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 2
 
    SECTION 4.  THERE SHALL BE NO SECRET STUDIES BEARING ON PERFORMANCE
 APPRAISALS.  ALL
 
    STUDIES CONDUCTED BY THE EMPLOYER WILL BE CONDUCTED ON TYPICAL
 WORKERS UNDER NORMAL WORKING
 
    CONDITIONS.
 
    THE UNION SHALL PARTICIPATE ON AN EQUAL BASIS IN THE DEVELOPMENT OR
 REVISION OF ALL
 
    MEASURES OF PERFORMANCE AND STUDIES INCLUDING BUT NOT LIMITED TO
 SELECTION OF TYPICAL WORKERS
 
    AND CONDITIONS. IF AGREEMENT CANNOT BE REACHED, FORMAL NEGOTIATIONS
 WILL BE CONVENED.  ANY
 
    IMPASSES WILL BE REFERRED TO THE FEDERAL SERVICE IMPASSES PANEL FOR
 RESOLUTION.
 
    THE FIRST PARAGRAPH OF THIS PROPOSAL IS IDENTICAL TO THE FIRST
 PARAGRAPH OF PROPOSAL 4 IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO
 REGION, ILLINOIS, 7 FLRA NO. 34(1981) WHICH THE AUTHORITY HELD TO BE
 NEGOTIABLE PURSUANT TO SECTION 7106(B)(2) OF THE STATUTE /2/ BECAUSE IT
 CONCERNED MATTERS OF A PROCEDURAL NATURE RELATING TO THE DEVELOPMENT OF
 A PERFORMANCE APPRAISAL SYSTEM WHICH WOULD NOT PREVENT THE AGENCY FROM
 IDENTIFYING A PARTICULAR CRITICAL ELEMENT OR ESTABLISHING A PARTICULAR
 PERFORMANCE STANDARD PURSUANT TO ITS RESERVED RIGHTS.  THEREFORE, FOR
 THE REASONS SET FORTH IN FEDERAL DEPOSIT INSURANCE CORPORATION, SUPRA,
 THE FIRST PARAGRAPH OF THE PROPOSAL, WHICH CONCERNS MATTERS OF A
 PROCEDURAL NATURE, IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7106(B)(2) OF THE STATUTE.  /3/
 
    THE SECOND PARAGRAPH OF THIS PROPOSAL IS IDENTICAL TO PROPOSAL 3 IN
 SAINT LAWRENCE SEAWAY, SUPRA, WHICH THE AUTHORITY HELD TO BE OUTSIDE THE
 DUTY TO BARGAIN.  IN THAT DECISION, THE AUTHORITY HELD THAT SINCE THAT
 PROPOSAL WOULD REQUIRE BARGAINING TO IMPASSE WITH THE UNION CONCERNING
 THE PARTICULAR PERFORMANCE STANDARDS TO BE ESTABLISHED FOR EMPLOYEES IN
 THE BARGAINING UNIT, IT WAS INCONSISTENT WITH MANAGEMENT'S RIGHTS TO
 DIRECT EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B)
 OF THE STATUTE.  ACCORDINGLY, THE SECOND PARAGRAPH OF THE PROPOSAL HERE
 IN DISPUTE IS OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 3
 
    SECTION 6.  ANY DISPUTE UNDER THIS ARTICLE MAY BE RESOLVED UNDER THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE INCLUDING BUT NOT LIMITED TO:  1.  CHALLENGES TO CRITICAL
 ELEMENTS OF A
 
    POSITION. 2.  THE MEASURE OF PERFORMANCE AS SET FORTH IN THE
 PERFORMANCE STANDARDS.
 
   .          .          .          .
 
 
    4.  ANY DISPUTED ACTION TAKEN AS A RESULT OF A PERFORMANCE APPRAISAL
 WILL BE TREATED AS ANY
 
    OTHER DISCIPLINARY MATTER.
 
    THIS PROPOSAL IS IDENTICAL TO PROPOSAL 4 CONSIDERED BY THE AUTHORITY
 IN SAINT LAWRENCE SEAWAY, SUPRA.  THE AUTHORITY IN THAT CASE DETERMINED
 WITH RESPECT TO SUBSECTIONS 1 AND 2 THAT, BY IN EFFECT PROVIDING FOR
 ARBITRAL REVIEW OF THE AGENCY'S IDENTIFICATION OF CRITICAL ELEMENTS AND
 ESTABLISHMENT OF PERFORMANCE STANDARDS, THE PROPOSAL WAS INCONSISTENT
 WITH MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER
 SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.  THUS, FOR THE REASONS
 FULLY SET FORTH IN SAINT LAWRENCE SEAWAY, SUBSECTIONS 1 AND 2 OF UNION
 PROPOSAL 3 HEREIN ARE OUTSIDE THE DUTY TO BARGAIN.
 
    FINALLY, SUBSECTION 4 IS IDENTICAL TO SUBSECTION 4 OF PROPOSAL 4
 CONSIDERED BY THE AUTHORITY IN SAINT LAWRENCE SEAWAY WHICH WAS HELD TO
 BE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE
 /4/ SINCE IT RELATED TO THE APPLICATION OF PERFORMANCE STANDARDS TO
 EMPLOYEES AND WAS CONSISTENT WITH LAW.  THUS, FOR THE REASONS SET FORTH
 IN SAINT LAWRENCE SEAWAY, SUBSECTION 4 OF THE PROPOSAL HEREIN IS WITHIN
 THE DUTY TO BARGAIN.
 
    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 AS TO PROPOSAL 1, PARAGRAPH 2 OF PROPOSAL 2 AND
 SUBSECTIONS 1 AND 2 OF PROPOSAL 3 BE, AND IT HEREBY IS, DISMISSED.  IT
 IS FURTHER ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE
 AGREED TO BY THE PARTIES) BARGAIN CONCERNING PARAGRAPH 1 OF PROPOSAL 2
 AND SUBSECTION 4 OF PROPOSAL 3.  /5/
 
    ISSUED, WASHINGTON, D.C., JANUARY 29, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7106(A)(2) PROVIDES IN RELEVANT PART:
 
    SECTION 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 IN THE AGENCY
 
    . . . ;  (B) TO ASSIGN WORK . . . (.)
 
    /2/ SECTION 7106(B)(2) PROVIDES:
 
    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(.)
 
    /3/ IN THE PRESENT CASE, WHILE THE AGENCY ALLEGES THAT THIS PORTION
 OF THE PROPOSAL WOULD PREVENT IT FROM CHOOSING THE METHODS OR MEANS OF
 PERFORMING ITS WORK, ITS ARGUMENT IN THIS REGARD CANNOT BE SUSTAINED.
 
    /4/ SECTION 7106(B)(3) PROVIDES:
 
    SECTION 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY AUTHORITY
 
    UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /5/ IN DECIDING THAT THESE PORTIONS OF THE UNION'S PROPOSALS ARE
 WITHIN THE DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT
 AS TO THE MERITS THEREOF.