20:0495(55)NG - AFGE Local 3748 and Agricultural Research Service, North States Area; AFGE Local 3365 and Agriculture, Forest Service, Black Hills National Forest -- 1985 FLRAdec NG

 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.