13:0697(112)NG - AFGE Local 3028 and HHS, Public Health Service, Alaska Area Native Health Service -- 1984 FLRAdec NG

[ v13 p697 ]
The decision of the Authority follows:

 13 FLRA No. 112
                                            Case No. O-NG-586
    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 four Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                            Preliminary Matters
    The Union claims that the Agency's statement of position was untimely
 filed and requests that the Authority not consider the matters raised
 therein.  Contrary to the Union's claim, the Agency timely filed its
 statement of position under section 2424.6 and 2429.22 of the
 Authority's Rules and Regulations.  Hence, the Union's request must be
    The Agency, for its part, moves that the Authority dismiss the
 Union's petition for review, claiming that the petitioner, the national
 office of the Union, is not the exclusive representative which is a
 party to the negotiations and therefore is without status to file the
 instant petition under section 2424.2 of the Authority's Rules and
 Regulations.  The Agency's contention is without merit.  Neither the
 Rules and Regulations nor the Statute precludes the local union from
 designating a representative to file an appeal on its behalf.  On the
 contrary, that is a matter within the purview of the Union, just as the
 designation of the Agency's representative before the Authority is a
 matter within the purview of the Agency.  Therefore, the Agency's motion
 to dismiss the Union's petition on this ground is denied.
    The Agency further moves for dismissal of Proposal 1 and 4 claiming
 that they are not properly before the Authority because the parties
 agreed to alternative language, which became Section 9(b) of Article 14
 of their agreement.  Although the Union does not dispute that the
 parties have agreed to the language cited by the Agency, it claims
 without specific contradiction by the Agency that Proposals 1 and 4 are
 properly before the Authority for review because the parties also agreed
 to a "reopener" which would become applicable if the Authority finds
 these proposals to be negotiable.  /1/ In this connection, the record is
 that the parties' agreement (Section 13 of Article 14) provides that the
 contract will be reopened for negotiations on those issues declared
 nonnegotiable by the Agency which the Authority, upon review, finds
 negotiable.  /2/ Finally, the Agency does not contradict the Union's
 statement that it filed this petition as permitted by section 2424.3 of
 the Authority's Rules and Regulations after the Agency did not respond
 to the Union's written request for an allegation of nonnegotiability.
    In agreement with the Union, the Authority finds that the Agency, by
 its failure to respond to the Union's request for an allegation,
 constructively declared Proposals 1 and 4 to be nonnegotiable thereby
 giving rise to a right of appeal to the Authority by the Union.
 Furthermore, even though the parties reached agreement on alternative
 language in Section 9(b), such language does not render Proposals 1 and
 4 herein moot in view of the "reopener" provision to which the parties
 also agreed.  Accordingly, the Agency's motion to dismiss the Union's
 petition as to Proposals 1 and 4 is denied.
                             Union Proposal 1
          Section 4.  Appraisal Rating
          A. Employees' performance rating will be a result of
       application of standards of performance to the employee's
       performance on critical and non-critical elements of the
       employees' position.  The employee will be rated only on these
    Union Proposal 1 simply requires the Agency to give notice to
 employees as to which elements of their jobs will be subject to
 performance rating by the Agency and, of those elements, which ones the
 Agency deems to be "critical /3/ or "noncritical." The proposal itself,
 however, does not identify any particular job elements;  establish any
 performance standards for any job elements;  or require that any
 elements of any job be deemed to be "noncritical."
    The Agency is required by 5 U.S.C. 4302 and implementing regulations
 to develop a performance appraisal system which provides for
 establishment of performance standards and identification of critical
 elements and further to communicate the standards and critical elements
 to employees and to establish methods and procedures to appraise
 performance against established standards.  In essence then the
 proposal's effect is to require that the Agency comply with law.  Since
 it does not interfere with the Agency's discretion to identify job
 elements, to designate them either as "critical" or "noncritical" or to
 establish performance standards for employees' positions, the proposal
 is not inconsistent with management's rights to assign work and direct
 employees under section 7106(a)(2) of the Statute.  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. 1982);  National Treasury Employees Union and U.S. Nuclear
 Regulatory Commission, 13 FLRA No. 49(1983).  Thus, since it is not
 apparent that the proposal is otherwise inconsistent with Federal law or
 Government-wide rule or regulation, it is within the duty 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 on Union Proposal 1.  /5/
                             UNION PROPOSAL 2
          The rating of elements will include designation of one of three
       ratings applied to each element identified on the rating form.
       Upon completion of the appraisal of each element, an overall
       rating of total performance will be designated using one of four
          (1) Rating of individual elements.  The range of ratings for
       each individual element shall be:
          (a) Exceeds the standard
          (b) Meets the standard
          (c) Fails to meet the standard
          Ratings other than "meet the standard" must be documented in
       writing and placed in the employee's personnel file.
                             Union Proposal 3
          (2) Overall Rating
          The range of rating for overall performance shall be one of the
       four ratings defined below.  The overall rating shall be arrived
       at by considering the total performance of the employee by using
       only the rating of the elements