15:0017(5)NG - AFGE Local 2302 and Army Armor Center, Ft. Knox, KY -- 1984 FLRAdec NG

 15 FLRA No. 5
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2302
 Union
 
 and
 
 U.S. ARMY ARMOR CENTER,
 FT. KNOX, KENTUCKY
 Agency
 
                                            Case No. O-NG-623
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of four Union proposals.  /1/ Upon careful consideration
 of the entire record, including the parties' contentions, the Authority
 makes the following determinations.  /2/
 
                             Union Proposal 1
 
          Positions which are essentially the same shall have the same
       critical elements.
 
    This proposal would establish substantive limitations on the Agency's
 discretion to identify the critical elements for certain positions.  In
 this regard it is to the same effect as a proposal which was before the
 Authority in National Federation of Federal Employees, Local 1497 and
 Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
 Base, Colorado, 6 FLRA 9 (1981).  In that case the Authority, relying
 upon two previous decisions, /3/ found that a proposal which restricted
 management in its designation of critical elements interfered with
 agency's rights under section 7106(a)(2) of the Statute to direct
 employees and to assign work.  The present proposal, by requiring
 critical elements to be the same for positions which are "essentially
 the same," would prevent management from determining that the critical
 elements of particular positions should not be the same because, in
 management's judgment, the circumstances relating to work performance in
 them warrants the establishment of different critical elements.  For the
 reasons fully set forth in Saint Lawrence Seaway Development Corporation
 and Bureau of the Public Debt, Union Proposal 1 is outside the duty to
 bargain.  /4/
 
                             Union Proposal 2
 
          The Union shall be allowed to have an observer present in the
       development or revision of all measures of performance.
 
    Determinations as to the content of performance standards are an
 exercise of management's rights under section 7106(a)(2) to direct
 employees and to assign work.  Bureau of the Public Debt, see n. 3,
 supra.  The Authority has found that the right of management officials
 to take actions under section 7106(a) of the Statute encompasses not
 only the right to act but also the right to discuss and deliberate on
 the relevant factors upon which decisions concerning such actions are to
 be based.  See National Federation of Federal Employees, Local 1167 and
 Department of the Air Force, Headquarters, 31st Combat Support Group
 (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (Union
 Proposals 1 and 3), aff'd sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d
 886 (D.C. Cir. 1982).  Union Proposal 2 would require that the Union be
 present at management meetings relating to the development or revision
 of performance standards.  The Union contends that the role of the
 observer would be a purely passive one and that, given this
 circumstance, the proposal would not entail active participation in
 internal management deliberations.  Contrary to the Union's contention
 the Authority concludes that such presence, regardless of whether active
 or passive in nature, would interfere with the Agency's right to freely
 engage in internal discussion and deliberation prior to making decisions
 to take actions which come within the purview of section 7106(a) of the
 Statute.  Hence, with respect to the proposal in this case, it would
 interfere with the decision-making process with respect to the exercise
 of the Agency's right to direct employees and to assign work and,
 therefore, is outside the duty to bargain.
 
                             Union Proposal 3
 
          Production studies or goals shall not be translated into
       performance standards, e.g. work units per person unless the
       following conditions are fully satisfied:
 
          (1) The work performed is repetitive and capable of being done
       uniformly by all workers in the unit being measured.
 
          (2) Job content is constant throughout the appraisal period.
 
          (3) The method of operation, service and work units produced is
       capable of being objectively, reliably, validly and accurately
       measured.
 
          (4) The work units to be measured are equivalent.
 
    The proposal is substantively identical to Union Proposal 2 in
 American Federation of Government Employees, AFL-CIO, Local 1708 and
 Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
 No. 1 (1984).  For the reasons expressed therein as well as in the cases
 relied upon therein, the Authority finds that this proposal would
 interfere with the Agency's right to direct employees and to assign work
 and, therefore, is outside the duty to bargain.
 
                             Union Proposal 4
 
          Appendix (UB) - Performance Rating Levels.  The range of
       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
       elements as prescribed in Section 4B(1) above.
 
          Outstanding - Performance which meets performance standards for
       all critical elements and exceeds standards for a majority of
       major elements.
 
          Satisfactory - Performance which needs improvement in one or
       more critical elements.  Performance in relation to these elements
       of such quality it would be expected of a proven competent
       employee.
 
          Marginal - Performance which needs improvement in one or more
       critical elements.  Performance in relation to performance
       standards is less than expected of a competent employee.
 
          Unsatisfactory - Performance which fails to meet performance
       standards for one or more critical elements.  Performance is
       clearly unacceptable and corrective action is needed.
 
    As explained by the Union, this proposal defines the level of
 performance required to achieve a particular summary rating.  Thus, this
 proposal is to the same effect as a portion of the proposal 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 the
 Authority held to be outside the duty to bargain because it interfered
 with management's rights under section 7106(a)(2) of the Statute to
 direct employees in the agency and to assign work.  Based on Department
 of Justice and for the reasons fully stated therein, it is concluded
 that the instant proposal is outside the duty to bargain.  /5/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.
 
    Issued, Washington, D.C., June 6, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its response to the petition for review, the Agency withdrew
 its allegation that a fifth proposal concerned with studies bearing on
 performance standards was nonnegotiable.  Accordingly, there is no
 longer an issue as to whether the proposal is within the duty to
 bargain.
 
 
    /2/ Contrary to the Agency's assertion that the petition was untimely
 filed, the Authority finds that the petition was timely submitted with
 respect to the Union's written request for a written allegation of
 nonnegotiability.  In this regard, under section 2424.3 of the
 Authority's Rules and Regulations, a union has the right to request in
 writing that an agency serve it with such written allegation.  American
 Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home
 Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981).
 
 
    /3/ American Federation of Government Employees, AFL-CIO, Local 1968
 and Department of Transportation, Saint Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA 70 (1981), aff'd sub nom. AFGE,
 Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1981), cert. denied, 103
 S.Ct. 2085 (1983), and National Treasury Employees Union and Department
 of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub
 nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
 
 
    /4/ Cf. American Federation of Government Employees, AFL-CIO, Local
 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784
 (1980) (Union Proposal 5) wherein the Authority found that, insofar as a
 proposal would establish a general, nonquantitative requirement by which
 the application of performance standards could be evaluated as opposed
 to dictating the actual content of the performance standards, such
 proposal was negotiable.
 
 
    /5/ In view of this determination, the Authority finds it unnecessary
 to address the Agency's additional contentions regarding the
 negotiability of this proposal.