22:0567(60)NG - AFGE Local 1603 and Naval Hospital, Patuxent River, MD -- 1986 FLRAdec NG

 22 FLRA No. 60
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1603
 Union
 
 and
 
 U.S. NAVAL HOSPITAL, 
 PATUXENT RIVER, MARYLAND
 Agency
 
                                            Case No. 0-NG-1217
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of the following provision of an agreement disapproved by
 the Agency head under section 7114(c) of the Statute.
 
                           Article IX, Section 5
 
          An employee who believes that he/she has been adversely
       affected by application of a performance standard may raise the
       issue of whether the performance standard, as applied to the
       employee, is fair and reasonable in any grievance proceeding or
       arbitration on the matter.  In interpreting whether a performance
       standard is fair and reasonable, an arbitrator shall bear in mind
       that 5 USC 4302 states that the Employer must establish
       performance standards which will, to the maximum extent feasible,
       permit the accurate evaluation of Job Performance on the basis of
       objective criteria related to the job in question.
 
                       II.  Positions of the Parties
 
    The Agency contends that, to the extent that it requires the
 performance standards themselves to be fair and reasonable, as well as
 to be fairly and reasonably applied, the disputed provision violates
 management's rights to assign work and direct employees under section
 7106(a)(2)(A) and (B) of the Statute.  The Union did not file a Reply
 Brief in this case, but explains, in its petition for review, that the
 intent of the provision is to give employees the right to raise before
 an arbitrator the issue of whether the employer applied performance
 standards fairly and reasonably and in a manner otherwise consistent
 with the provisions of 5 U.S.C. Section 4302.
 
                       III.  Analysis and Conclusion
 
    Contrary to the Union's explanation, the clear language of the
 disputed provision is not limited to subjecting the application of
 performance standards to grievance and arbitral review.  It also, by the
 language contained in the second sentence as to "whether a performance
 standard is fair and reasonable," would require an arbitrator to
 determine whether performance standards themselves are fair and
 reasonable by reviewing the criteria used by management in such
 standards to evaluate job performance.  As such it would provide the
 basis for arbitral view of the content of performance standards and
 would permit arbitrators to substitute their judgements as to the proper
 content of performance standards for that of the Agency.  Thus, the
 disputed provision in this case is to the same effect as a disputed
 portion of a proposal found to be outside the duty to bargain in
 American Federation of Government Employees, Local 32 and Office of
 Personnel Management, Washington, D.C., 16 FLRA 948 (1984) (Proposal 3).
  In that decision the Authority held that the disputed portion of a
 proposal which provided that "performance standards . . . must be fair
 and equitable" violated management's rights to assign work and direct
 employees under section 7106(a)(2)(A) and (B) of the Statute.  Based on
 Office of Personnel Management and the cases cited therein, this
 provision, to the extent that it requires an arbitrator to determine
 whether performance standards themselves are fair and reasonable, is
 also outside the duty to bargain.  See also American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, 17 FLRA 790 (1985) (Proposal 3).
 
                                IV.  Order
 
    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., July 15, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY