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13:0325(49)NG - NTEU and Nuclear Regulatory Commission -- 1983 FLRAdec NG

[ v13 p325 ]
The decision of the Authority follows:

 13 FLRA No. 49
                                            Case No. O-NG-478
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The issue presented
 is the negotiability of the following two proposals:
                             Union Proposal 1
          "Non-critical Elements" means the negotiable component(s) of an
       employee's job that are of sufficient importance to be part of the
       employee's assigned duties and responsibilities, as well as to be
       described on the employee's position description, but are
       unrelated to job retention, yet may influence determinations
       concerning awarding of within grade increases.
                             Union Proposal 2
          "Performance Standards (Non-critical Elements)" are the
       expressed measure of the level of achievement negotiated between
       the NRC and the Union for the non-critical elements and associated
       duties and responsibilities of a position or group of positions.
       They may include, but are not limited to, negotiated elements of
       quantity, quality and timeliness for a non-critical element.
                       Question Before the Authority
    The question presented is whether, as alleged by the Agency, the
 Union's proposals are inconsistent with management's rights to direct
 employees in the agency and/or to assign work under, respectively,
 section 7106(a)(2)(A) and (B) of the Statute.
 Conclusion and Order:  The Union's proposals are inconsistent with the
 statutory rights to direct employees and assign work.  Accordingly,
 pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
 IS ORDERED that the Union's petition for review as to both proposals be,
 and it hereby is, dismissed.  Reasons:  Union Proposal 1 would define
 and require negotiation of the "non-critical" job elements of bargaining
 unit positions.  /1/ A "critical" job element is defined by Office of
 Personnel Management (OPM) regulations as a component of an employee's
 job which is of such importance that performance below the minimum
 standard requires remedial action and the denial of a within-grade
 salary increase.  5 CFR 430.202(e).  While those regulations do not
 expressly define the term "non-critical" job elements, it is implicit in
 the cited definition of the term "critical element" that a non-critical
 element is a job component of sufficient importance to be evaluated but
 not so significant that the unacceptable performance of it requires
 remedial action.
    The Authority has held that the designation by management of a
 critical element is an exercise of its statutory rights to direct
 employees and assign work.  National Treasury Employees Union and
 Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
 (1980), affirmed sub nom. National Treasury Employees Union v. Federal
 Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982).  In so
 holding, the Authority concluded that the identification of critical
 elements is one of the ways by which management supervises and
 determines the duties to be assigned to employees, and determines the
 priorities for the accomplishment of an agency's work.  Similarly, the
 identification of non-critical elements also establishes job
 requirements by communicating to employees what work they will be
 required to perform and that their performance thereof will be
 evaluated.  The fact that an employee's unacceptable performance in such
 a job element does not necessarily result in remedial action does not
 mean that the element is not a duty of the job.  Thus, the
 identification of any job element, whether critical or otherwise,
 constitutes an assignment of duties within the meaning of the right to
 assign work.  /2/ In addition, the determination of the relative
 importance of job elements sets priorities for the accomplishment of the
 agency's work and, therefore, constitutes an exercise of its right to
 direct employees.  /3/ Accordingly, the identification of non-critical
 job elements through negotiation, as the proposal would require, is not
 a matter within the duty to bargain.
    Union Proposal 2 would require bargaining over the performance
 standards for non-critical elements.  As noted previously, /4/ the Union
 intends to require bargaining over all performance standards above the
 performance level required for job retention.  /5/ In Bureau of the
 Public Debt, the Authority concluded that under 5 U.S.C. 4302 and
 implementing regulations, a performance standard determines the level of
 work performance in terms of, among other things, quality, quantity, or
 timeliness, which is acceptable for certain purposes such as job
 retention.  It therefore held a proposal which would have established a
 particular performance standard for job retention to be inconsistent
 with management's rights to assign work and direct employees.  Although
 the proposal in that case concerned only a performance standard for job
 retention, the reasoning employed by the Authority is equally applicable
 in the circumstances of the present case.
    An agency is not limited to merely prescribing the minimum level of
 performance which will be required from an employee for job retention.
 Rather, the results of employee performance appraisals are to be used
 for multiple purposes, i.e., as the basis for rewarding and promoting
 employees, reducing them in grade and retaining or removing them.  In
 this regard, Congress explicitly stated its intention that appraisals of
 performance for all purposes be made within a single, interrelated
 system.  /6/ Thus, the rights to assign work and direct employees extend
 to establishing job requirements, e.g., performance standards, for
 various levels of achievement, which management will use to encourage
 and reward successful performance as well as to discourage performance
 which is unacceptable.  That is, an integral aspect of those management
 rights is prescribing the standards for each performance level within
 the agency's performance appraisal system.  The Union's proposal herein,
 however, would require negotiation of performance standards for each
 level of performance above the level for job retention.  Consequently,
 it would directly interfere with management's rights to assign work and
 direct employees and is not within the duty to bargain.  /7/ Issued,
 Washington, D.C., October 6, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Union interprets its proposal broadly to include within the
 definition of a "non-critical element" the performance of a "critical
 element" above the achievement level required for job retention.  This
 interpretation reflects a misapprehension as to the meaning of the term
 "critical element." A critical element is defined by Government-wide
 regulations in terms of job components, i.e., what work an employee must
 perform.  Thus, a critical element consists of job tasks rather than the
 degree of proficiency of an employee's performance.  See National
 Treasury Employees Union and Department of the Treasury, Bureau of the
 Public Debt, 3 FLRA 769, 777-78 (1980), affirmed sub nom. National
 Treasury Employees Union v. Federal Lab or Relations Authority, 691 F.2d
 553, 556-57, 564 (D.C. Cir. 1982).
    /2/ See National Treasury Employees Union and Department of the
 Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub
 nom. National Treasury Employees Union v. Federal Labor Relations
 Authority, 691 F.2d 553 (D.C. Cir. 1980).
    /3/ Id.
    /4/ See n. 1, supra.
    /5/ Union Reply Brief at 2-3.
    /6/ S. Rep. No. 95-969, 95th Cong., 2d Sess. 40 (1978).  See also
 Remarks of Senator Javits at 124 Cong.Rec. 27550 (1978);  Remarks of
 Senator Sasser at 124 Cong.Rec. 27549 (1978);  and Remarks of Senator
 Ribicoff at 124 Cong.Rec. 27535 (1978).
    /7/ The Union has argued that its proposal is negotiable since, in
 its view, it would not prevent the Agency from "acting at all" to impose
 sanctions upon an employee who performs unacceptably.  This argument is
 inapposite since the proposal directly interferes with the substantive
 rights of management to assign work and direct employees where as the
 "acting at all" test governs matters which are procedural in nature.
 See American Federation of Government Employees, AFL-CIO, Local 1999 and
 Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
 Jersey, 2 FLRA 152 (1979), enforced sub nom. Department of Defense v.
 National Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981).