[ v13 p697 ]
The decision of the Authority follows:
13 FLRA No. 112 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3028 Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, PUBLIC HEALTH SERVICE, ALASKA AREA NATIVE HEALTH SERVICE Agency Case No. O-NG-586 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 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 denied. 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 elements. 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. /4/ 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 ratings. (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 as prescribed in Section 4B(1) above. The ratings are: (a) Outstanding (b) Satisfactory (c) Marginal (d) Unacceptable A rating other than (b) satisfactory shall be documented in writing and made part of the employee's personnel file. Each employee will be given a copy of the rating and any written documentation. Union Proposals 2 and 3 would establish the number of rating levels for the appraisal of an employee's performance in each job element and for a summary appraisal of overall performance. In these respects, Union Proposals 2 and 3 are to the same effect as the proposal before the Authority in American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA No. 96(1984), which was determined to be inconsistent with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Thus, for the reasons set forth in U.S. Department of Justice, Proposals 2 and 3 are inconsistent with section 7106(a)(2)(A) and (B) of the Statute and outside the duty to bargain. /6/ 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 Union Proposals 2 and 3 be, and it hereby is, dismissed. Union Proposal 4 C. Employees will be rated annually. The rating will be complete within five (5) working days of the anniversary date. 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. 14 (1981), affirmed as to other matters sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), the Authority determined that a proposal to the extent it prescribed periodic appraisal of employees on an annual basis was consistent with law and Government-wide rules or regulations and, therefore, was within the duty to bargain (Proposal 2). See also American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA No. 34(1981) (Proposal 3). Therefore, for the reasons set forth in Saint Lawrence Seaway Development Corporation, the first sentence of the proposal requiring annual performance appraisals is within the duty to bargain. The second sentence of the proposal requires the Agency to prepare an employee's performance appraisal within five working days of the annual anniversary date. Thus, this portion of the proposal similarly would establish a procedural time limit for the appraisal of an employee's performance. Since there is nothing in the record to indicate that this portion of the proposal which establishes such a time limit to complete the annual performance appraisal is inconsistent with law or regulation, it is within the duty to bargain under section 7106(b)(2) of the Statute. /7/ 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 4. /8/ Issued, Washington, D.C., January 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Union Reply Brief at 1-2. /2/ The Agency does, however, make conflicting statements in the record as to whether it has declared Proposals 1 and 4 to be nonnegotiable so as to come within the purview of Section 13. /3/ See 5 CFR 430.202(e). /4/ See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA No. 34(1981), in which the Authority determined that Proposal 3 was negotiable to the extent it required that the annual performance appraisal result from the application of performance standards to each element of an employee's job, including critical elements. /5/ In deciding that Union Proposal 1 is within the duty to bargain, the Authority makes no judgment as to its merits. /6/ Since the Authority determines that Union Proposals 2 and 3 are outside the duty to bargain under section 7106(a)(2), it is unnecessary to consider other Agency contentions as to the nonnegotiability of the proposals. /7/ See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA No. 97(1982) (Union Proposal V); National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA No. 92(1983) (Union Proposal 3). /8/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.