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The decision of the Authority follows:
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.