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U.S. Federal Labor Relations Authority

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13:0426(75)NG - NFFE and Army, Fort Monmouth, NJ -- 1983 FLRAdec NG

[ v13 p426 ]
The decision of the Authority follows:

 13 FLRA No. 75
                                            Case No. O-NG-611
    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) and raises issues
 concerning the negotiability of two Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                             Union Proposal 1
          The proposed performance appraisal will be discussed with the
       employee first and then with the reviewer and up the appraisal
    The Agency contends that the proposal pertains to the managerial
 deliberations and discussions which are part of the decision-making
 process of appraising employee performance and thus does not concern
 matters which are conditions of employment within the meaning of section
 7103(a)(14).  The scope of the duty to bargain under the Statute extends
 to conditions of employment, i.e., personnel policies, practices and
 matters affecting working conditions, affecting employees in a unit of
 exclusive recognition.  In this connection, contrary to the Agency's
 contention, the right of employees to discuss proposed performance
 appraisals is a matter affecting working conditions of the employees
 involved since, clearly, the consequences of a performance appraisal
 directly impact upon the work situation and employment relationship of
 the employees.  /2/
    Furthermore, the discussion of a proposed performance appraisal is
 not inconsistent with management's rights under section 7106(a)(2) of
 the Statute.  /3/ The proposal literally only would require management
 to discuss the proposed performance appraisal with the employee prior to
 the reviewer and others in the appraisal chain.  Implicitly, and as
 explained by the Union, "(o)nce the employee has discussed the
 'proposed' appraisal with his/her supervisor, management can take
 whatever action or make whatever deliberations they wish." Thus,
 contrary to the Agency contention that the proposal interferes with
 internal management deliberations on the appropriate rating level to
 assign an employee's performance, the proposal does not interfere with
 management's rights to direct employees and assign work.
    Finally, the Agency contends the proposal would impede effective
 management communications.  It claims, therefore, that the proposal is
 inconsistent with 5 U.S.C. 4302 which requires that a performance
 appraisal system shall establish performance standards which will permit
 accurate evaluation of job performance on the basis of objective
 criteria.  /4/ Contrary to the Agency's contention, section 4302 does
 not provide a basis for determining that this proposal is outside the
 Agency's duty to bargain.  The proposal does not prohibit the Agency
 from further discussion and evaluation of the employee's performance to
 render an accurate evaluation.  Management's rights under section
 7106(a) are subject to an agency's duty to bargain on procedures under
 section 7106(b)(2) of the Statute.  /5/ The proposal herein is a
 procedure which merely would delay but which would not prevent the
 Agency from acting at all to exercise its reserved management rights /6/
 and is within the duty to bargain.  /7/
                             Union Proposal 2
          Employees will:
          Paragraph 5:  At the time of the annual performance appraisal
       share in planning, training and development activities for the
       following year-- This planning will be included in the Individual
       Development Plan (IDP).  It is agreed by management and the union
       that training for the employee is a very important aspect of the
       employee's job opportunity and the supervisor will counsel and
       encourage employees to participate in all training appropriate to
       enhance the employee's career and self-development.  It is further
       agreed that in some instances management will decide that an
       employee is performing at an unsatisfactory level and training
       will be needed to bring the employee's performance to a
       satisfactory level.  It is also recognized that an employee who is
       performing at a fully successful level may not require any
       training to maintain his work at a fully successful level.  In
       this instance the employee would not be required to take any
       training, but may be counseled as to the benefits such as, awards
       or promotions that may accrue as a result of further training.
       (Only the underscored portion of the proposal is in dispute.)
    Contrary to the Union's assertion that the proposal is only a
 procedure that management would use in scheduling training based upon
 performance, the express language of the proposal would absolutely
 prohibit management from assigning training to an employee performing at
 a fully successful level.
    It is well settled under Authority precedent that proposals which
 would contractually obligate an agency to provide formal training, to
 periodically assign employees to specific types of training programs,
 and to make specific training assignments upon employee requests are
 outside the duty to bargain:  The assignment of training under such
 circumstances constitutes an assignment of work the negotiation of which
 would be inconsistent with management's right to assign work under
 section 7106(a)(2)(B).  See, e.g., American Federation of Government
 Employees, AFL-CIO, Local 3004 and Department of the Air Force, Otis Air
 Force Base, Massachusetts, 9 FLRA No. 87 (1982).  Similarly, it is
 concluded the proposal here is outside the duty to bargain because it
 would be inconsistent with management's right to assign work under
 section 7106(a)(2)(B) by precluding the Agency from requiring training
 under certain circumstances.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain on Union Proposal 1.  /8/ IT
 IS FURTHER ORDERED that the petition for review with respect to Union
 Proposal 2 be, and it hereby is, dismissed.  Issued, Washington, D.C.,
 November 23, 1983.
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In its response to the Agency's Statement of Position, the Union
 withdrew its petition for review as to two proposals.
    /2/ See National Treasury Employees Union and Internal Revenue
 Service, 3 FLRA 692 (1980).
    /3/ Section 7106 of the Statute provides, in relevant part, as
          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 in the agency . . . ;
          (B) to assign work(.)
    /4/ 5 U.S.C. 4302 provides, as relevant herein, as follows:
          Sec. 4302.  Establishment of performance appraisal systems
                                .  .  .  .
          (b) Under regulations which the Office of Personnel Management
       shall prescribe, each performance appraisal system shall provide
          (1) establishing performance standards which will, to the
       maximum extent feasible, permit the accurate evaluation of job
       performance on the basis of objective criteria . . . related to
       the job in question for each employee or position under the
    /5/ Section 7106(b)(2) of the Statute provides:
          Sec. 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(.)
    /6/ 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. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
    /7/ The Authority notes that the Office of Personnel Management has
 caused to be published in 48 Fed.Reg., 49,478-81 (1983), a regulation
 intended to become effective November 25, 1983.  Such regulation, at
 Sec. 430.204(o), provides as follows:
          (o) Periodic performance ratings and performance based
       personnel actions shall be reviewed and approved by a supervisor
       or manager at a higher level than the appraising official.
       Performance ratings shall be in writing and shall be provided to
       the employee.  Performance ratings may not be communicated to
       employees prior to approval by a higher level reviewer.
 If and when such Government-wide regulation, (See American Federation of
 State, County and Municipal Employees, AFL-CIO, Local 2027 and Action,
 Washington, D.C., 12 FLRA No. 128 (1983) (Proposal 2), becomes
 effective, it appears that the instant proposal could potentially be
 inconsistent with the last sentence of the quoted section.
    /8/ In deciding that Union Proposal 1 is within the duty to bargain,
 the Authority makes no judgment as to its merits.