15:0906(171)NG - AFGE, Locals 112, 3269, 3383, 3831 and HHS, FDA, Region V -- 1984 FLRAdec NG

 15 FLRA No. 171
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCALS 112, 3269,
 3383 and 3831
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN
 RESOURCES, FOOD AND DRUG ADMINISTRATION,
 REGION V
 Agency
 
                                            Case No. O-NG-544
 
                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.
 
                             Union Proposal 1
 
          Fully Satisfactory.  This summary appraisal applies if the
       employee, at a minimum, fully met all critical job elements and
       fully met a substantial number of non-critical job elements.
 
          Excellent.  This summary appraisal applies if the employee
       exceeded all of the critical job elements and fully met a
       substantial number of non-critical job elements.
 
          Outstanding.  This summary appraisal applies if the employee
       substantially exceeded all the critical job elements and exceeded
       a substantial number of non-critical job elements.
 
                             Union Proposal 2
 
          An employee who achieves an Outstanding overall performance
       appraisal . . . shall be granted a Quality Step Increase.  An
       employee who receives an Excellent overall performance appraisal
       will be eligible for a Quality Step Increase.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 
    Union Proposal 1 would establish what quality of performance in
 individual job elements would be required to achieve a particular
 summary rating of overall employee job performance.  As such, it is
 materially identical in effect to a portion of the proposal which was
 held nonnegotiable by 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).  In that case, the Authority ruled ,
 that a proposal which would have established the particular levels of
 performance in individual job elements which would be required to
 achieve a particular summary rating for overall performance is
 inconsistent with management's rights to direct employees and assign
 work under section 7106(a)(2)(A) and (B) of the Statute.  Accordingly,
 for the reasons fully stated in Department of Justice, Union Proposal 1
 is outside the duty to bargain.
 
    Union Proposal 2 would establish the performance level, i.e.,
 outstanding, at which an employee would be entitled to a quality step
 increase and the level, i.e., excellent, at which an employee would be
 eligible for such an award.  In this regard, it is materially identical
 in effect to Union Proposal 1 which was held outside the duty to bargain
 in National Treasury Employees Union and Internal Revenue Service, 14
 FLRA No. 77 (1984), appeal docketed sub nom. NTEU v. FLRA, No. 84-1292
 (D.C. Cir. July 9, 1984).  In that case, Union Proposal 1 would have
 prescribed the performance standards an employee needed to attain to be
 eligible for a reward for superior performance.  The Authority stated as
 to that proposal that management's rights to direct employees and assign
 work extend to establishing job requirements, e.g., performance
 standards, for various levels of achievement, which management will use
 to encourage and reward successful performance.  Thus, an integral
 aspect of management's exercise of these rights is to prescribe the
 level of performance which an employee must attain in order to receive
 or be eligible for a reward for superior performance.  Internal Revenue
 Service, 14 FLRA No. 77 (1984) and cases cited therein at nn.7 & 8 and
 accompanying text.  Since Union Proposal 2, in the present case, would
 prescribe the overall performance appraisal an employee needs to attain
 in order to receive or be eligible for a quality step increase, i.e., a
 reward for superior performance, the proposal directly interferes with
 management's rights to direct employees and assign work under the
 rationale set forth in full in Internal Revenue Service and is not
 within the duty to bargain.
 
    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.  /1/
 
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In view of the Authority's decision herein, it is unnecessary to
 consider the Agency's additional arguments that the proposals are
 outside the duty to bargain.