[ v20 p495 ]
The decision of the Authority follows:
20 FLRA No. 55 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3748, AFL-CIO Union and AGRICULTURAL RESEARCH SERVICE, NORTHERN STATES AREA Agency Case No. 0-NG-1133 and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3365 Union and DEPARTMENT OF AGRICULTURE, FOREST SERVICE, BLACK HILLS NATIONAL FOREST Agency Case No. 0-NG-1135 CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in each of these cases comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents an issue concerning the negotiability of one provision of a local agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. Provision in Case No. 0-NG-1133 Article 16, Section 2. Supervisor will encourage employee participation in the establishment of performance standards. Performance Standards will be fair, objective, job-related, and measurable. The application of Performance Standards and the determination of acceptable level of competence will both be made in a fair and objective manner. Factors beyond the control of employees will not be used to evaluate performance. The employee will be rated on these elements and not on representational activities. Provision in Case No. 0-NG-1135 Article 13, Section 6. Standards used for measurement of performance for critical elements of the job will be fair, objective and job related. When considering complaints of enrollees in evaluating the performance of an Employee, those complaints must be determined to be valid and reliable before such complaints would adversely affect the Employee's evaluation. The Authority has consistently held that proposals substantively restricting management's authority to establish performance standards are inconsistent with the rights to assign work and direct employees pursuant to 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. 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) (Union Proposals 1 and 2), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 461 U.S. 926(1983). In this respect, the disputed language in each of the provisions would have the net effect of permitting arbitral review of management's determination of the content of performance standards. That is, contrary to the Union's claim that the disputed sentences are intended to concern the application and not the content of standards, it is clear that they address only the content of performance standards rather than the application of those standards. For example, and as noted by the Agency with respect to the provision in Case No. 0-NG-1133, the sentence immediately following the disputed sentence expressly concerns the application of performance standards. Similarly, the portion of the provision in Case No. 0-NG-1135 which is not in dispute relates to application of standards meeting the requirements set out in the disputed sentence. Thus, the provisions herein are to the same effect as the disputed portion of a proposal requiring performance standards to be "fair and equitable" which the Authority found to be outside the duty to bargain in American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 127(1984) (Union Proposal 3), petition for review filed sub nom. Local 32, American Federation of Government Employees, AFL-CIO v. FLRA, No. 85-1038 (D.C. Cir. Jan. 16, 1985). In concluding that the disputed portion of the proposal was inconsistent with management's rights to assign work and direct employees, the Authority noted particularly that such disputed portion of the proposal "would permit arbitrators to substitute their judgments as to the proper content of performance standards for that of the Agency." Similarly, the specific language of the provisions herein also would permit arbitrators to substitute their view of what is fair, objective, job-related and measurable for management's determination of the appropriate content of a performance standard. Therefore, based on Office of Personnel Management and the reasons and cases cited therein, the disputed provisions herein are outside the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations IT IS ORDERED that the Union's petitions for review in Case Nos. 0-NG-1133 and 0-NG-1135 be, and they hereby are, dismissed. Issued, Washington, D.C., October 15, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Since the disputed provision in each of these cases concerns a common issue, the Authority deemed it appropriate to consolidate these cases in the interest of expeditious processing.