[ v16 p313 ]
The decision of the Authority follows:
16 FLRA No. 49 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 943 Union and DEPARTMENT OF THE AIR FORCE, KEESLER AIR FORCE BASE, MISSISSIPPI Agency Case No. O-NG-581 DECISION AND ORDER ON NEGOTIABILITY ISSUES This case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of the following proposal which relates to the Agency's Performance Appraisal Program. Section A. The Performance Appraisal program shall be implemented for bargaining unit employees in compliance with Chapter 43, Title 5 U.S.C., Chapter 430 of the Federal Personnel Manual, and this agreement. Section B. The Employer has the exclusive right to establish performance standards, critical elements and non-critical elements under guidelines developed by a Union/Mgnt Performance Standards Panel. These standards and critical and non-critical elements shall be in writing and shall be consistent with the duties and responsibilities contained in the employee's position description. These standards shall be job related and objective. Each employee shall be given a copy of their position description, performance standards, and critical and non-critical elements that relate to their position. Section C. The Employer agrees to encourage employees to participate in the establishment of performance elements and performance standards for their individual position and to allow the employee to have a Union representative present during discussions of the elements and standards. Employees shall be encouraged to provide input to their supervisors via comments and recommendations during the development of standards for their position. In the event that the employee and supervisor cannot agree upon applicable performance standards and critical elements for an employee or position, the matter shall be referred to a Union/management performance standards panel containing a union member who will be an active participant in discussions. The standards and critical and non-critical elements shall be put in writing and signed or initialed by the employee and supervisor. Amendments should be noted with the parties' initials. Employees and their supervisors shall meet at least once each year to discuss the performance standards and critical and non-critical elements applicable for the coming rating year. Performance Elements and Standards will be given in writing to the employee at the beginning of the appraisal period. Section D. Employees shall receive a performance appraisal from a supervisor located at the employees' worksite which shall be accomplished in a fair and objective manner and based on a comparison of employee performance with the standards established for the appraisal period in accordance with the following: 1. The supervisor shall discuss the employee's job performance with the employee in private surroundings at least once every three (3) months during the rating period. 2. If the supervisor has identified shortcomings in the employee's performance, the employee will be notified when the problem is perceived, at the three (3) month's discussion, and at anytime thereafter, if necessary. The supervisor will suggest ways for the employee to improve his/her performance to a satisfactory level, and provide necessary training which may be required. Follow-up discussions may be held after the initial discussion, if required. 3. The annual performance appraisal will be in written form. The supervisor shall discuss the completed appraisal with the employee in private during the month in which the rating is due. This discussion should confirm and summarize previous discussions, plus any significant observations made since the last discussion. The signing of the applicable Air Force form by the employee merely acknowledges receipt of the appraisal, but not necessarily agreement with it. Each employee will be given a completed copy of the performance appraisal. Annual Performance Appraisals will be reviewed by Performance Standards Panel for appropriateness of the rating and to insure that no unlawful discrimination of any kind is involved in the rating. (Only the underscored portions are in dispute.) As explained by the Union, section B, C and the latter portion of section D(3) of the proposal would, among other things, require that a panel, including one union participant, be established by the Agency to oversee the Agency's establishment and administration of performance standards. Specifically the panel would develop guidelines under which the Agency would establish the performance standards; it would resolve differences between supervisors and employees regarding the performance standards and critical elements to be applied to individual positions; and it would review all annual performance appraisals for appropriateness. A proposal of this sort which would require union participation in a formal organizational element assigned responsibility for management deliberations would have the effect of directly interfering with management's right to make the decision involved. National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Additionally, the Authority has held that the designation of critical elements and performance standards is a matter which is outside the duty to bargain because it is within management's authority to direct its employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Based on the proposal itself and the Union's statement as to the intent of the proposal, the functions of the panel in relation to the performance appraisal system would involve a substantive role in the decision-making process with respect to the designation of performance standards and critical elements. More specifically, the panel would, among other things, resolve differences between supervisors and employees as to what performance standards and critical elements should be applied to a position and review performance appraisals given by supervisors. /1/ Clearly, such resolution would involve a determination on the actual content of the performance standards or critical elements in dispute. Hence, the proposal would necessarily interject the Union into a decision-making process involving the exercise of management rights. Consequently, the disputed portions of sections B, C and D(3) of the proposal would directly interfere with management's rights under section 7106 of the Statute to direct employees and to assign work. /2/ Those portions are, therefore, not within the duty to bargain. /3/ Turning now to the first sentence of section D of the proposal, which is also in dispute, by its terms, it would dictate to the Agency which supervisors would be assigned the function of appraising employees. In this respect, it is substantially identical to Union Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982). In Redstone Arsenal the Authority relied upon Congressional Research Employees Association and the Library of Congress, 3 FLRA 737 (1980) to find that a proposal which specified which personnel within an agency would evaluate the work performance of employees directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. Thus, for the reasons set forth in the Library of Congress decision, the Authority finds that the first sentence of section D 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. /5/ Issued, Washington, D.C., October 30, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Of course, a proposal which would require that employees agree with the performance standards and/or critical elements to be applied to their positions would similarly be nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New York Regional Office, 7 FLRA 571 (1982) (Union Proposal 4). /2/ See National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982); 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 Proposal 3), enforced sub nom. National Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). /3/ Cf. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Union Proposal 6) in which the Authority found that a proposal to create a joint labor-management committee with power limited to recommending changes in an agency's performance appraisal system was procedural in nature and, thus, within the duty to bargain). /5/ In view of this decision, it is unnecessary to address other arguments by the Agency with respect to the negotiability of the proposal.