[ v18 p241 ]
The decision of the Authority follows:
18 FLRA No. 31 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2910 Union and LIBRARY OF CONGRESS Agency Case No. 0-NG-948 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 presents issues concerning the negotiability of six Union proposals. /1/ Upon careful consideration of the entire record, /2/ including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 3. All GS-12 Subject Catalogers and GS-12 Reference Specialists not under an oral or written warning, adverse action, or denial of within-grade, shall be eligible for selection to a program that will offer an opportunity for the exchange of a reference specialist and a subject cataloger between the Subject Cataloging Division of the Processing Services and the General Reading Rooms Division of the Research Services Department. All applicants will be interviewed. Article XI, Section 9 and Article XI, Section 5, parts n and o, are waived to eliminate the need for rating panels and quality ranking factors in the selection process for this detail. Union Proposal 2 4. Qualifications determination will be based on the commonly posted requirements of each position at the GS-9 level. As part of the final decision as to the selectees, consideration will be given to the actual subject area needs resulting from the effect of the exchange, e.g., there may be some effort to match the skills and knowledges of the exchanges. (Only the underlined portions of those two proposals are in dispute.) The record in this case indicates that the Union sought to negotiate procedures implementing a job exchange program whereby GS-12 employees in designated portions of the Agency would compete under a posted announcement for a one-year detail. This program was established, pursuant to provisions in the parties' master agreement, for the purpose of job enrichment and career development. It is well established that the right to assign employees, pursuant to section 7106(a)(2)(A) of the Statute, includes not only the right to decide to assign an employee to a position but also the discretion to determine the personnel requirements of the work of the position, i.e., the discretion to determine the qualifications and skills needed to do the work as well as such job related individual characteristics as judgment and reliability. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 612-13 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Union Proposals 1 and 2, however, would limit the Agency's discretion to determine the qualifications and skills necessary to perform the work of the positions in the job exchange program. Specifically, Union Proposal 1 expressly provides that all "GS-12 Subject Catalogers and GS-12 Reference Specialists . . . shall be eligible for selection . . . ." In this regard, it is axiomatic that in order to be "eligible for selection" an employee must have been found to have met the qualifications and skills necessary to do the work, including such job related individual characteristics as judgment and reliability. Thus, by providing that all of the subject employees "shall be eligible for selection," Union Proposal 1 prevents the Agency from determining whether any of the subject employees possesses all the necessary qualifications and skills. Similarly, Union Proposal 2 would also prevent the Agency from evaluating employees according to the actual personnel requirements of the positions in the exchange program. That is, even though the record establishes that the positions in the exchange program are at the GS-12 level, Union Proposal 2 expressly provides "(q)ualifications determination will be based on the commonly posted requirements of each position at the GS-9 level." Consequently, as Union Proposals 1 and 2 prevent the Agency from exercising its right to assign employees pursuant to section 7106(a)(2)(A) of the Statute they are outside the duty to bargain. Union Proposal 3 2. These details will be for a one-year period. Union Proposal 3 would establish that a detail in the job exchange program would last one year. In this regard, Union Proposal 3 herein is to the same effect as paragraph 3 of Union Provision II in American Federation of Government Employees, AFL-CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981), which limited the length of a detail in that case to 60 days. In finding that portion of the provision in Tinker Air Force Base to be inconsistent with the right to assign employees pursuant to section 7106(a)(2)(A) of the Statute, the Authority stated as follows: Inherent in the right of management to assign employees is the right to decide when such an assignment should begin and end, that is, its duration, so that the work involved will be accomplished. Thus, the provision, which directly would restrict this aspect of the right to assign employees is inconsistent with the Agency's authority to assign employees under section 7106(a)(2)(A) of the Statute . . . . Consequently, since Union Proposal 3 herein, likewise would restrict the Agency's right to determine that the duration of a detail in the job exchange program would last for a period of time other than one year, it is, based upon Tinker Air Force Base and the reasons stated therein, not within the duty to bargain. Union Proposal 4 9. The annual performance rating will be prepared by the supervisor of the employee's appointed position in consultation with the detail supervisor if the participant's performance rating is due during the first 6 months of his/her detail. If the participant's performance rating is due during the last six months of the detail then his/her rating will be prepared by the detail supervisor in consultation with his/her supervisor. (Only the underscored portions are in dispute.) Union Proposal 4 expressly indicates the specific Agency employee, i.e., "the supervisor of the employee's appointed position . . . ," who will evaluate the work performance of bargaining unit employees. In this regard, Union Proposal 4, herein, is to the same effect as the third disputed sentence of a proposal 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) (Union Proposal 2), wherein the Authority found the disputed portion of the proposal to be inconsistent with management's right to "assign work" pursuant to section 7106(a)(2)(B) of the Statute. The disputed portion of the proposal would in that case have required the employee's "immediate supervisor" to make performance appraisals of the employee's work, thereby preventing the agency from assigning those functions, i.e., making performance appraisals, to other personnel. Consequently, since Union Proposal 4, herein, would likewise prevent the Agency from assigning the function of making performance evaluations to other personnel, for the reasons and case cited in Redstone Arsenal, it is inconsistent with management's right to "assign work" pursuant to section 7106(a)(2)(B) of the Statute. Union Proposal 5 7. Both parties agree to abide by the implementing procedures as contained in this document. The record in this case indicates that Union Proposal 5 was proffered in the context of negotiations in which the Union sought to establish substantive contractual limitations on management's authority to detail employees pursuant to the job exchange program. See Authority determinations with respect to Union Proposals 1, 2, 3, 4 and 6 herein. Thus, in agreement with the agency and contrary to the Union statements that the proposal is only procedural in nature, the Authority concludes that insofar as Union Proposal 5 would require the Agency to agree to and abide by procedures which are, in the context of these negotiations, inconsistent with management's reserved rights, pursuant to section 7106(a) of the Statute, it is also outside the duty to bargain. See American Federation of Government Employees, Local 225, AFL-CIO and Department of the Army, U.S. Army Armament Research and Development Command, Dover, New Jersey, 17 FLRA No. 66 (1985) (Union Proposal 4). Union Proposal 6 7. Employees selected will not be subject to the standard review procedure for the respective position, but will receive memoranda regarding their performance and progress at six-month intervals. Each memorandum will include a statement regarding the new skills and knowledges being acquired by the detail participant. The final memo will, in addition, include the main duties performed. A copy of this memo may be appended to the participant's next performance evaluation. (Only the underlined portion is in dispute.) It appears from the record in this case that the standard review procedure referred to in Proposal 6 concerns an annual performance evaluation cycle. Proposal 6 then, by its express terms, establishes that employees selected to participate on a one-year detail in the job exchange program would not be subject to this standard annual performance evaluation procedure but, instead, would receive memoranda at six month intervals describing the skills and knowledge acquired and the main duties performed while on detail. In this connection, the Union states "(t)he procedure proposed is that detailees be told about their level of performance every 6 months instead of every 12 months as stated in the contract." /3/ However, while the Authority has determined that the duration of the performance appraisal cycle and thus, the frequency of periodic performance appraisals, is a matter within the duty to bargain, /4/ proposals which seek to place limitations on the inclusion of certain matters in performance standards have been determined to infringe on management's discretion to direct employees and to assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute. /5/ In the instant case, and notwithstanding the Union's statement of intent with regard to Proposal 6, it is clear that the net effect of the proposal is to prevent management from formally evaluating an employee's performance of duties while on detail. That is, in the place of a formal performance evaluation, management would be restricted to providing only a memorandum describing the duties performed and the skills the employee is acquiring while on detail. Consequently, as Union Proposal 6 prevents management from determining the particular duties to be evaluated, here the duties performed while on detail, it directly interferes with the Agency's right to direct employees and assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute and is outside the duty to bargain. /6/ 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., May 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union's Petition for Review in this case included three additional proposals. However, the record before the Authority indicates that the Agency did not determine these three proposals to be nonnegotiable. Instead, the Agency noted in its written nonnegotiability determination that the parties were in agreement on the issues not determined to be nonnegotiable. Consequently, as the Agency has not determined these three proposals to be nonnegotiable, the Union's petition for review as it relates to these three proposals must be dismissed. See Association of Civilian Technicians and State of Georgia, Department of Defense, Military Division, Atlanta, Georgia, Department of Defense, Military Division, Atlanta, Georgia, 3 FLRA 686 (1980). /2/ The Union did not file a Reply Brief in this case. /3/ Union Petition for Review at 2. /4/ E.g., American Federation of Government Employees, AFL-CIO, Local 2192 and Veterans Administration Regional Office, St. Louis, Missouri, 9 FLRA 716 (1982) (Union Proposal 3) and cases cited therein. /5/ E.g., American Federation of Government Employees, AFL-CIO, Local 1708 and Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA No. 1 (1984) (Union Proposal 2) and cases cited therein. /6/ In view of this disposition, it is unnecessary to address the Agency contentions that the proposal violates management's right to discipline pursuant to section 7106(a)(2)(A) of the Statute and that the proposal is inconsistent with management's right to determine the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute.