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The decision of the Authority follows:
13 FLRA No. 49 NATIONAL TREASURY EMPLOYEES UNION Union and U.S. NUCLEAR REGULATORY COMMISSION Agency Case No. O-NG-478 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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. Opinion 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).