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

 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 disputed sentence of the
 proposal.  Therefore, as this sentence is inconsistent with law, it is
 not within the duty to bargain under section 7117(a)(1) of the Statute.
 
    The sixth disputed sentence requires:
 
          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.  (The underlined
       portion of this sentence is in dispute.)
 
 The disputed portion of this sentence interferes with management's
 rights under section 7106(a)(2) of the Statute to direct employees and
 assign work.  As previously noted, the matter of identifying critical
 elements for the purpose of appraising performance falls within
 management's right 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).  Similarly, the identification of job elements, if any,
 which are not critical is also an exercise of those rights.  National
 Treasury Employees Union and U.S. Nuclear Regulatory Commission, 13 FLRA
 No. 49 (1983).  Thus, the sixth disputed sentence, by requiring the
 Agency to designate a number of elements in each job as non-critical,
 i.e., not subject to remedial action, is outside the duty to bargain.
 
    The final disputed sentence of the proposal provides:
 
          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.
 
 This disputed sentence is outside the duty to bargain.  In barring the
 use of quantified critical elements in evaluating professional
 employees, the sentence is to the same effect as Union Proposal 1,
 similarly seeking to limit the critical standards to be applied in
 performance evaluation, 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. 70 (1981),
 enforced sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir.
 1982), cert. denied, 103 S.Ct. 2085 (1983).  In the cited case, the
 Authority found the proposal to be outside the duty to bargain because
 it violated management's rights under section 7106(a)(2)(A) and (B) of
 the Statute to direct employees and assign work by preventing the
 identification and establishment of certain critical elements.  See also
 National Federation of Federal Employees, Local 1497 and Headquarters,
 Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 6
 FLRA No. 5 (1981).  The Union's reliance upon the portion of the
 definition of "professional employee" sets out in section
 7103(a)(15)(A)(iv) of the Statute, as support for the negotiability of
 this sentence of the proposal is misplaced.  The cited definition
 provides, with regard to a professional employee, that " . . . the
 output produced or result accomplished by such work cannot be
 standardized in relation to a given period of time . . . ." The
 definitions in chapter 71, however, are prefaced by the limitation in
 section 7103(a) that the definitions that follow are for the purpose of
 chapter 71, "Labor-Management and Employee Relations." Moreover, in its
 report accompanying the final House version of the Statute, the
 Committee on Post Office and Civil Service noted, with respect to
 section 7103(a)(15), which section was identical to that ultimately
 enacted and signed into law, that:
 
          Subsection (a)(15) of section 7103 sets forth the criteria for
       determining whether an employee is a "professional employee." The
       term is relevant primarily to the determination of appropriate
       bargaining units under section 7112.  /5/ (Footnote added.)
 
    Thus the cited section of chapter 71 expressly has no application
 outside that chapter and could not have been intended to preclude the
 establishment of quantity based performance standards and critical
 elements for professional employees under 5 U.S.C.chapter 43 which
 governs performance appraisal systems.  It is therefore concluded that
 the final disputed sentence of the proposal is outside the Agency's
 obligation to bargain.
 
    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 concerning the first and
 second disputed sentences of the Union proposal.  /6/ IT IS FURTHER
 ORDERED that the Union's petition for review as it relates to all other
 disputed sentences of the proposal be, and it hereby is, dismissed.
 Issued, Washington, D.C., November 29, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its statement of position, the Agency addressed each disputed
 sentence of the proposal identified by underscoring separately.
 Accordingly, the Authority will treat the proposal in like manner.  Each
 part of the proposal to be considered will be reiterated, for ease of
 understanding, prior to its analysis.
 
 
    /2/ Because the Union's Response to the Agency's Statement of
 Position was untimely filed, it has not been considered.
 
 
    /3/ In National Treasury Employees Union and Department of the
 Treasury, Bureau of the Public Debt, 3 FLRA 769, 770 (1980), affirmed
 sub nom. National Treasury Employees Union v. Federal Labor Relations
 Authority, 659 F.2d 553 (D.C. Cir. 1982), the Authority noted:  " . . .
 under section 7117, as to units of exclusive recognition, it is within
 the duty of the agency to bargain, consistent with law and regulation,
 on aspects of performance appraisal systems other than identification of
 critical elements and content of performance standards."
 
 
    /4/ 5 CFR 430.203(b) (1983).
 
 
    /5/ H.R. REP. No. 95-1403, 95th Cong., 2d Sess. 41 (1978).
 
 
    /6/ In finding these two disputed sentences of the proposal to be
 within the duty to bargain, the Authority makes no judgment as to their
 merits.