U.S. Federal Labor Relations Authority

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15:0045(9)NG - NFFE Local 1430 and Navy, Northern Division, Naval Base, Philadelphia, PA -- 1984 FLRAdec NG

[ v15 p45 ]
The decision of the Authority follows:

 15 FLRA No. 9
                                            Case No. O-NG-616
    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
 concerning the negotiability of two Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                             Union Proposal 1
          The identification of performance elements and the
       establishment of performance standards shall be a joint planning
       communication process between the employee with the aid of the
       steward and the supervisor.  Employees and their supervisors shall
       meet at least once each year to discuss performance standards and
       critical elements for the next rating year.  The shop steward is
       entitled to be present at, and a party to, such discussions.
    The Agency argues that the intent of the proposal is ambiguous and
 that, if the proposal is construed as requiring bargaining over
 identification of performance elements and establishment of performance
 standards, it is outside the duty to bargain.  On the other hand, if the
 proposal is intended only to require that employees be informed
 concerning the performance elements and standards applicable to their
 performance appraisals, the Agency will withdraw its determination of
 nonnegotiability.  /2/ In its response to the Agency's Statement of
 Position the Union further explains the purpose of this proposal as
 being "to propose a procedure that insures employee/supervisor
 communications and participation on performance standards as required by
 5 United States Code Section 4302(a)(2)." /3/
    In National Treasury Employees Union and Department of the Treasury,
 Bureau of the Public Debt, 3 FLRA 769, 778 (1980), affirmed sub nom.
 NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority
          section 4302(a)(2) of the CSRA requires that performance
       appraisal systems "encourage employee participation in
       establishing performance standards" but does not specify the form
       which such employee participation must take.  Consequently, among
       other significant aspects of performance appraisal systems, the
       manner in which a particular agency provides for such employee
       participation is within the agency's discretion and, therefore,
       within the duty to bargain to the extent that it would not prevent
       the agency from establishing performance standards and critical
       elements pursuant to its statutory rights to direct employees and
       assign work.  (Footnote omitted.)
    Based on the record in the present case, we find that nothing in the
 proposal would require the negotiation of performance elements or
 standards, or would prevent the Agency from establishing such elements
 and standards pursuant to its statutory rights to direct employees and
 to assign work.  Rather, in our view, the previously quoted intent of
 the Union, as well as the express language of the proposal which calls
 only for a "joint planning communication process" comprised of
 "discussions," is fully consistent with the test set forth in our
 decision in Bureau of the Public Debt, as quoted in pertinent part
    Accordingly, inasmuch as the proposal is concerned with the manner in
 which the Agency will provide for employee participation in establishing
 performance standards, but does not prevent the Agency from establishing
 such standards pursuant to its management rights, it is within the duty
 to bargain for the reasons stated in the Bureau of the Public Debt
 decision.  /4/
                             Union Proposal 2
          The Employer agrees that anti-union animus will not be
       tolerated within the command.
          The employer and union agree that a critical labor management
       relations element for management officials is an element that
       impacts adversely on any unit member, (sic) therefore any
       anti-union animus exhibited by any management official shall be
       cause for reassignment, downgrade or removal of the offending
       management official.
    Union Proposal 2 is to the same effect as the proposal found to be
 outside the duty to bargain in National Association of Government
 Employees, Local R7-23 and Headquarters, 375th Air Base Group, Scott Air
 Force Base, Illinois, 7 FLRA 710 (1982), which required that management
 consider union recommendations in disciplining management officials and
 supervisors "for violations of the rights of employees." In that case,
 the Authority found the proposal to be unrelated to conditions of
 employment of bargaining unit employees because it concerned the
 discipline of persons outside the bargaining unit.  Union Proposal 2
 likewise addresses the disciplining of management officials, who are
 outside the unit.  Hence, based on 375th Air Base Group, and the reasons
 and case cited therein, it is outside the duty to bargain under the
    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 Union Proposal 1.
    IT IS FURTHER ORDERED that the petition for review as it pertains to
 Union Proposal 2 be, and it hereby is, dismissed.
    Issued, Washington, D.C., June 8, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency withdrew its nonnegotiability determination as to a
 third proposal.  Therefore, the appeal of that determination is now moot
 and will not be considered by the Authority.
    /2/ Agency Statement of Position at 1-2.
    /3/ Union Reply Brief at 1.
    /4/ In deciding that Union Proposal 1 is within the duty to bargain,
 the Authority makes no judgment as to its merits.