[ v15 p45 ]
The decision of the Authority follows:
15 FLRA No. 9 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1430 Union and DEPARTMENT OF THE NAVY, NORTHERN DIVISION, U.S. NAVAL BASE, PHILADELPHIA, PENNSYLVANIA Agency Case No. O-NG-616 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), 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 above. 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 Statute. 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.