13:0433(77)NG - IFPTE Local 25 and Navy, Mare Island Naval Shipyard -- 1983 FLRAdec NG



[ v13 p433 ]
13:0433(77)NG
The decision of the Authority follows:


 13 FLRA No. 77
 
 INTERNATIONAL FEDERATION OF
 PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 25
 Union
 
 and
 
 DEPARTMENT OF THE NAVY
 MARE ISLAND NAVAL SHIPYARD
 Agency
 
                                            Case No. O-NG-499
 
                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), and raises issues
 relating to the negotiability of the following Union proposal.  /1/
 
          I.  Performance elements and performance standards
 
          A. Performance elements and performance standards are required
       for all General Schedule employees in grades GS-1 through GS-12,
       and all Federal Wage System employees.  They must be objective,
       realistic, and consistent with the duties and responsibilities of
       the applicable position as described in the position or job
       description.  Work based on words to the effect "other duties as
       assigned" shall not be used for performance appraisals.
       Individuals with the same position or job description under the
       same supervisor shall have the same critical elements.  Each job
       must have at least one critical performance element, though
       possibly three to five will be appropriate depending on the
       position.  Positions for which objective, realistic elements and
       standards cannot be developed will be exempted from this Program
       on a case basis.  Each job will also have a number of elements
       which are not critical, but which will be informative to the
       supervisor and the employee in assessing overall work performance.
        Critical elements and performance standards shall recognize the
       fact that professional work by definition (5 USC 7103) "is of such
       character that the output produced or the result accomplished by
       such work cannot be standardized in relation to a given period of
       time," i.e., they shall not specify quantity.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 /2/
 
    The first disputed sentence provides:
 
          Performance elements and performance standards are required for
       all General Schedule employees in grades GS-1 through GS-12, and
       all Federal Wage System employees.
 
 This sentence is within the Agency's obligation to bargain.  /3/ That
 is, contrary to the Agency's contention, this sentence would not prevent
 the Agency from establishing "one or more performance appraisal systems"
 as required by 5 U.S.C. 4302(a).  Rather, the sentence would merely
 require that "performance elements" and performance standards be used in
 evaluating employees.  Such a requirement is consistent with law,
 specifically 5 U.S.C. 4302, which directs agencies to develop one or
 more performance appraisal systems employing performance standards, and
 with regulations issued by the Office of Personnel Management (OPM)
 pursuant to 5 U.S.C. 4305 which require that each appraisal system
 include performance standards and critical elements.  /4/
 
    The second disputed sentence requires:
 
          Work based on words to the effect "other duties as assigned"
       shall not be used for performance appraisals.
 
 The second disputed sentence of the proposal is also within the Agency's
 obligation to bargain.  This sentence, in essence, requires that
 performance evaluations be based on duties specifically set forth in
 position descriptions.  In this respect, the disputed sentence is to the
 same effect as the portion of the proposal requiring that critical
 elements and performance standards "be consistent with the duties and
 responsibilities contained in properly classified position descriptions"
 which the Authority held to be within the duty to bargain in American
 Federation of Government Employees, AFL-CIO, Local 2849 and Office of
 Personnel Management, New York Regional Office, 7 FLRA No. 88 (1982).
 Hence, based on Office of Personnel Management and for the reasons
 stated therein, the second disputed sentence is within the duty to
 bargain.
 
    The third disputed sentence of the proposal provides:
 
          Individuals with the same position or job description under the
       same supervisor shall have the same critical elements.
 
 This sentence, requiring that employees having the same position
 description and assigned to the same supervisor be evaluated using the
 same critical elements, is to the same effect as the portion of the
 proposal requiring that employees with the same position descriptions
 have the same performance standard which was held to violate the
 Agency's rights under section 7106(a)(2)(A) and (B) of the Statute "to
 direct employees" and "to assign work" in National Federation of Federal
 Employees, Local 1497 and Headquarters, Lowry Technical Training Center
 (ATC), Lowry Air Force Base, Colorado, 6 FLRA No. 5 (1981).  Based on
 Lowry Air Force Base and the reasons and cases cited therein, the
 Authority concludes that the third disputed sentence herein violates the
 Agency's section 7106(a)(2)(A) and (B) rights "to direct employees" and
 "to assign work" and is outside the duty to bargain.
 
    The fourth disputed sentence states:
 
          Each job must have at least one critical performance element,
       though possibly three to five will be appropriate depending on the
       position.
 
 The Agency alleges that the portion of this sentence concerning the
 appropriate number of critical elements for each position is
 nonnegotiable.  In this regard, the Agency asserts, without
 contravention on the record, that the sentence, in effect, would require
 it to bargain on the substance of critical elements by limiting the
 number which could be established for any position covered by the
 appraisal system.  The Authority has held that the designation by
 management of critical elements constitutes the exercise of the rights
 under section 7106(a)(2) of the Statute "to direct employees" and "to
 assign work." National Treasury Employees Union and Department of the
 Treasury, Bureau of the Public Debt, 3 FLRA 769, affirmed sub nom.
 National Treasury Employees Union v. Federal Labor Relations Authority,
 691 F.2d 553 (D.C. Cir. 1982).  Hence, the disputed portion of the
 fourth sentence is outside the Agency's obligation to bargain.
 
    The fifth disputed sentence provides:
 
          Positions for which objective, realistic elements and standards
       cannot be developed will be exempted from this Program on a case
       basis.
 
 This sentence, exempting certain positions from the appraisal system, is
 inconsistent with 5 U.S.C. 4301(2) which lists the exclusions from the
 definition of "employee" for purposes of chapter 43, governing
 performance appraisals.  The record in this case does not indicate that
 any of the employees represented by the Union are within any of those
 categories, nor does applicable law or regulation provide exemptions
 from coverage on the grounds stated in this d