20:0380(39)AR - Bureau of Engraving and Printing, Treasury and Washington Plate Printers Union, Local No. 2 IPDEU -- 1985 FLRAdec AR
[ v20 p380 ]
20:0380(39)AR
The decision of the Authority follows:
20 FLRA No. 39
BUREAU OF ENGRAVING AND
PRINTING, U.S. DEPARTMENT
OF THE TREASURY
Activity
and
WASHINGTON PLATE PRINTERS UNION,
LOCAL NO. 2, IPDEU, AFL-CIO
Union
Case No. 0-AR-818
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Frederick U. Reel filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations.
A grievance was filed and submitted to arbitration in this case
challenging the Activity's implementation of revised performance
standards for journeyman plate printers at the Activity. Before the
Arbitrator the Activity maintained that the grievance was not grievable
because the Union's grievance essentially challenged the content of the
production standard that had not yet been applied to any employees. The
Arbitrator agreed that the Activity was free to establish unilaterally a
new production performance standard, but disagreed that this was
dispositive of the grievance. Instead, the Arbitrator viewed the
grievance as encompassing a challenge to the Activity's implementation
of the revised performance standards without permitting bargaining over
the "methodology" used by the Activity in revising the standards or over
the allowance for non-productive "down time." Because the Arbitrator
determined these matters to be within the duty to bargain, the
Arbitrator sustained the grievance and directed that the Activity
bargain with the Union over these matters, that the Activity stop giving
effect to the revised performance appraisal system, and that the
Activity cancel any appraisals issued under the revised system.
As one of its exceptions, the Agency contends that the award is
deficient as contrary to section 7106(a)(2)(A) and (B) of the Statute.
The Authority agrees.
The Authority has consistently held that proposals which
substantively restrict management in its identification of critical
elements of a position and establishment of performance standards are
inconsistent with section 7106(a)(2)(A) and (B) of the Statute as
improper interferences with management's right to direct employees and
to assign work. E.g., National Treasury Employees Union and Department
of the Treasury, Bureau of the Public Debt, 3 FLRA 769(1980), aff'd sub
nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); American Federation
of Government Employees, AFL-CIO, Local 1968 and Department of
Transportation, Saint Lawrence Seaway Development Corporation, Massena,
New York, 5 FLRA 70(1981) (Proposals 1-2), aff'd sub nom. AFGE, Local
1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S.
926(1983). Similarly, the Authority has held that proposals which
would, as their sole effect, subject management's determinations
concerning the identification of critical elements and the content of
performance standards to the grievance procedure and arbitral review
constituted improper interference with management's rights. E.g., Saint
Lawrence Seaway Development Corporation, 5 FLRA 70 (Proposal 4). In so
holding, the Authority has noted that subjecting managerial evaluations
concerning critical elements and performance standards to arbitral
review would require an arbitrator to substitute his or her judgement as
to how the agency should be run for that of management. National
Treasury Employees Union and Department of Health and Human Services,
Region 10, 13 FLRA 732, 734(1982), aff'd sub nom. NTEU v. FLRA, No.
84-7034 (9th Cir, Aug. 5, 1985). "Under the Statute, however,
management has the right to evaluate the relative importance of job
tasks and to formulate levels of achievement for those tasks based upon
its own determination of the agency's operating needs, goals, and
priorities." Id.
With respect to the arbitrator's role in resolving grievances
involving performance appraisal matters, consistent with the above
holdings and section 7106(a)(2)(A) and (B) of the Statute, an arbitrator
could not determine that a grievance directly challenging an agency's
identification of job elements or establishment of performance standards
is grievable and arbitrable. E.g., Veterans Administration, St. Louis,
Missouri and American Federation of Government Employees, Local 2192, 19
FLRA No. 30(1985); American Federation of Government Employees, Local
1917 and U.S. Immigration and Naturalization Service, 15 FLRA No.
147(1984). Nor could an arbitrator render an award substituting his or
her judgment concerning the identification of critical job elements and
establishment of performance standards for that of management. See,
e.g., National Treasury Employees Union and U.S. Customs Service, 17
FLRA No. 12(1985).
It is equally well established, on the other hand, that there is a
duty to bargain under section 7106(b)(3) on appropriate arrangements for
employees adversely affected by management's exercise of its authority
under section 7106(a), e.g., actions which adversely affect employees
taken under the performance standards established by management. E.g.,
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 3 FLRA 784,
791-92(1980) (Proposal 5). Thus, in the facts of that case, the
Authority specifically found that the proposal in dispute merely
established a general, nonquantitative requirement by which the
application of critical elements and performance standards established
by management may subsequently be evaluated in a grievance by an
employee who believes that he or she has been adversely affected by the
application of management's performance standard to him or her. To that
extent, the Authority held that the proposal was within the duty to
bargain. Under such a proposal the Authority noted that an employee
against whom management takes disciplinary action for unacceptable
performance may, in a grievance of such action pursuant to section
7121(e) of the Statute, raise the issue of whether the performance
standards as applied to him or her meet the contractual requirements,
i.e., the arbitrator of such a grievance would simply determine if the
standard established by management as applied to the grievant complied
with the "fair and equitable . . . " requirements of the parties'
agreement. In finding that proposal to be within the duty to bargain,
the Authority specifically noted that such an arrangement did not affect
management's discretion to determine the content of performance
standards nor did it authorize an arbitrator to substitute his or her
judgment for that of management as to the content of the standards.
The Authority has distinguished between proposed grievance procedures
subjecting management's identification of critical elements and
establishment of performance standards to arbitral review and grievance
procedures relating only to the application of such elements and
standards to an individual employee through the appraisal process.
Saint Lawrence Seaway Development Corporation, 5 FLRA 70 (Proposal 4).
As has been noted, the Authority found in that case that a proposed
procedure which provided for grievances directly challenging the
identification of critical elements and the establishment of the
performance standards conflicted with management's rights. In contrast,
however, the Authority citing AFGE, Local 32, also ruled that a proposed
extension of the grievance procedure to any action taken as a result of
the application of performance standards to an employee appropriately
would extend the negotiated grievance procedure to matters relating to
the adverse affect on an employee of the exercise by management of its
authority under section 7106 of the Statute. In ruling that the
application of management's elements and standards to an employee in the
context of a performance appraisal is grievable, the Authority has
consistently emphasized, as in the OPM case discussed above, that such a
grievance would not relate to the establishment of the standards,
because the review by an arbitrator would not preclude management from
determining the content of the elements and standards and would not
result in the setting of new elements and standards. Instead, arbitral
review would simply and appropriately determined whether the application
of the elements and standards to the employee through a performance
appraisal complied with applicable law, regulation, and the parties'
collective bargaining agreement. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois, 7 FLRA 217(1981) (Proposal 7).
Consistent with the above holdings and the Statute, an arbitrator may
resolve a grievance by an employee who believes that he or she has been
adversely affected by management's application of performance standards
in a performance appraisal to that particular employee. In judging
management's application of standards and elements to a grievant, an
arbitrator may determine that, in the circumstances of the case,
management has not applied the elements and standards which it had
established to a grievant or has applied those, or other elements and
standards, in violation of law, regulation, or an appropriate
agreed-upon general, nonquantitative review criterion. In such
circumstances, an arbitrator could, for example, sustain an employee's
grievance alleging that management had not applied the elements and
standards which it had established or had applied those, or other
elements and standards, in violation of law, regulation, or an
appropriate agreed-upon general, nonquantitative review criterion. In
sustaining the grievance the arbitrator as a remedy could direct that
the grievant's work product be granted the rating to which entitled
under the standards and elements established by management or be
reevaluated by management utilizing those standards and elements.
Social Security Administration and American Federation of Government
Employees, SSA, Local 1923, AFL-CIO, 7 FLRA 544(1982). See also
American Federation of Government Employees, AFL-CIO, Loclal 2855 and
U.S. Army, Military Traffic Management Command, Eastern Area, 13 FLRA
251, 253(1983). However, in resolving such a grievance, an arbitrator
may not, of course, substitute his or her judgment for that of the
agency as to the appropriateness of elements and standards established
by management. Further, an arbitrator may not conduct an independent
evaluation of an employee's performance under the elements and standards
established by management and substitute his or her judgment as to what
should be that employee's performance evaluation and rating.
In terms of this case, the Arbitrator correctly determined that to
the extent the grievance objected to the "numbers" of the production
performance standard, the grievance directly challenged the Activity's
exercise of its authority to establish new standards and could not be
considered. However, contrary to the determination in the award that
the grievance was grievable and arbitrable to the extent of methodology
and "down time," the Authority has likewise held that proposals
concerning such matters pertain to the exercise by management of its
authority to establish performance standards and consequently are
inconsistent with section 7106(a)(2)(A) and (B) of the Statute. E.g.,
American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 19 FLRA No. 9(1985) (Proposal 2 ("down
time")); Saint Lawrence Seaway Development Corporation, 5 FLRA 70
(Proposal 3 (methodology)).
Consequently, the Authority concludes that by finding the grievance
arbitrable to the extent of methodology and "down time" and resolving
the grievance to that extent on the merits, the award is deficient in
its entirety as contrary to section 7106(a)(2)(A) and (B) of the
Statute. Accordingly, the award is set aside. /1/
Issued, Washington, D.C. September 27, 1985
(s) HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS JR.
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In view of this decision, it is not necessary for the Authority
to address the Agency's other exception to the award.