[ v56 p549 ]
56 FLRA No. 86
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1709
(Union)
and
U.S. DEPARTMENT OF THE AIR FORCE
DOVER AIR FORCE BASE
DOVER, DELAWARE
(Agency)
0-NG-2523
_____
DECISION AND ORDER ON
NEGOTIABILITY ISSUES
August 11, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2424 of the Authority's Regulations. [n1] The appeal involves two proposals concerning the use and content of work quality standards. The Agency filed a statement of position and the Union filed a response. The Agency also filed a reply to the Union's response.
For the reasons that follow, we find that the proposals are outside the duty to bargain and dismiss the petition for review
II. Background
In order to understand the functional significance of the proposals in this case, and to resolve their negotiability, it is necessary to outline the programs to which the proposals relate. [n2] See Statement of Position at 9; Union Response at 2.
The mission of the Agency facility involved in this case is the maintenance and repair of aircraft. In the early 1990's, because of the loss of experienced personnel, the Agency began to observe deficiencies in the quality of the work produced. To rectify the observed deficiencies, the Agency initiated a Process Improvement Program in 1995. The purpose of this program was to monitor work processes, by a mechanism known as "process assessment," so as to identify "process problems," such as "procedural discipline" and "experience shortfalls." [n3] Parks Affidavit, paragraphs 2, 4, and 5a. A worksheet was used by personnel who assessed the work processes under review and the names of the employees whose work was being reviewed were listed on those worksheets. However, the purpose of including employee names was to track work processes and so the results of a process assessment were not used as the basis of disciplinary actions. [n4] Under this program, mistakes were treated as failures of the work processes, not the fault of the employees performing the work. Parks Affidavit, paragraphs 5c, 6.
Because Process Improvement failed to reduce maintenance and repair problems, the Agency instituted the Quality Assurance Assessment Program (QAAP) in [ v56 p550 ] 1998, revising the ACMI regulations accordingly. [n5] Parks Affidavit, paragraphs 7, 8. Under QAAP, the focus changed from assessment of work processes to assessment of work performance. [n6] More precisely, as in Process Improvement, the record of each assessment contains the name of the employee whose work is being reviewed, unless the work is a group project. Parks Affidavit, paragraphs 20, 21. The assessment process begins when the inspector notifies employees that they will be evaluated on the task that they are about to start. To assess the work being performed, the inspector uses the same checklists and Technical Orders (TO) used by the employee. The inspector observes the employee's work to determine that all the tasks listed on the checklist are performed correctly in accordance with the TOs. The inspector also checks the equipment used by the employee to determine whether the employee is properly maintaining that equipment so that it is safe for use. Parks Affidavit, paragraph 23.
QAAP also establishes a framework for conducting assessments. Specifically, the Command Assessment List (CAL) prescribes the "basic, critical, aircraft maintenance processes" that are required to be done each month. Parks Affidavit, paragraph 11. Within that context, Routine Assessment Lists (RALs) are developed that are specific to a type of aircraft. The RAL lists the "tasks/processes which are basic to aircraft recovery, inspection, maintenance, generation, and launch activities[.]" Parks Affidavit, paragraph 13. Some of the tasks/processes listed on a RAL are assessed frequently throughout each month; others are assessed on a regular basis, but not necessarily monthly. Parks Affidavit, paragraph 14.
An Acceptable Quality Level (AQL) is established for each task or process on the RAL. Each AQL establishes the maximum allowable number of minor findings with respect to a particular task that is sufficient for an acceptable Quality Verification Rating (QVR) or QVR-1 rating. Parks Affidavit, paragraphs 9 and 15. More particularly, a "QVR-1 rating indicates the evaluated process/product met the acceptable quality level, 'the standard.'" Parks Affidavit, paragraph 10a. A "minor finding" is defined as "an unsatisfactory condition that requires repair or correction, but doesn't endanger personnel, affect safety of flight, jeopardize equipment reliability, or warrant discontinuing a process or equipment operation." [n7] Parks Affidavit, paragraph 10b.
AQLs generally are derived from the assessment reports produced from the inspections of a given task or process. Specifically, every six months, using a computer program, reported minor findings are subjected to a type of statistical analysis, called a "trend analysis," that "takes an average of the number of minor findings documented, applies a standard deviation and derives the AQL." [n8] Parks Affidavit, paragraph 17. The computer program establishes a level at which 85 percent of the employees performing the tasks or processes in question would be able to achieve a QVR-1 rating. Parks Affidavit, paragraph 16b. The object of this assessment process is to help employees improve their maintenance practices and procedures. In establishing the QAAP to replace the Process Improvement program, however, the Agency removed the ban against using assessment results as the basis for disciplinary action. [n9] [ v56 p551 ]
III. Proposal 1
The Quality Assessment Program (QAAP) will not be used as a basis for disciplinary action nor [is it] intended for performance based action.
A. Positions of the Parties
1. Agency
According to the Agency, Proposal 1 would preclude it from taking disciplinary or performance-based action against an employee based on the results of an assessment under the QAAP. Specifically, the Agency maintains that the proposal concerns the Agency's use of the assessment of each employee's performance in relation to the applicable technical orders and safety directives. The Agency claims that, by precluding disciplinary and performance-based actions based on the QAAP, the proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(a) of the Statute. The Agency also claims that the proposal violates management's right to discipline by precluding the use of information derived from assessments under the QAAP to support disciplinary or performance-based actions.
The Agency claims that, even though they "may, or may not, be expressly referenced in a performance work plan," AQLs "represent performance standards to which employees are required to adhere." Agency Reply at 2. In this regard, the Agency maintains that Proposal 1 restricts "the factors that management can consider in evaluating employees" and absolves employees "of accountability for satisfying performance requirements and standards." Statement of Position at 7. The Agency asserts that the proposal places "a substantive limitation upon management's ability to determine the performance standards for which the employees would be accountable" and, thus, it directly interferes with management's rights to direct employees and assign work. Id. at 6. According to the Agency, the proposal "would prohibit the consideration of employee evaluations regarding compliance with AQL standards in determining the over-all evaluations assigned to employees." Agency Reply at 2.
The Agency contends that "severance of the proposal into separate proposals, one pertaining to discipline and one pertaining to performance," does not affect the outcome. Statement of Position at 8. Specifically, the Agency argues that the severed portion pertaining to discipline would violate management's right to discipline because it would preclude management from "taking disciplinary action based upon the conduct observed during an assessment." Id. The Agency maintains that the portion concerning performance would violate management's rights to direct employees and assign work because it would "restrict the consideration of assessments as a factor in evaluating employees" and would substantively modify employees' performance standards. Id.
2. Union
Under Proposal 1, according to the Union, "[a]ssessments will not be used by management to initiate or support disciplinary or performance[-]based actions." Petition for Review at 2. The Union requests that the part of the proposal pertaining to disciplinary actions and the part pertaining to performance-based actions be treated separately.
According to the Union, the "purpose of [i]nformation derived from QAAP is not meant to inspect an employee's performance or assess the quality of [an] employee's work[,]" but to evaluate the quality of the unit's maintenance work and manage its "product improvement efforts[.]" Union Response at 2. The Union argues that the "basic principles" of the QAAP are not directed to the appraisal of employee performance. Id. at 4. Rather, the Union asserts, performance management is a separate program established under chapter 43 of title 5 of the United States Code (chapter 43). The Union claims that the proposal would not affect performance evaluation under the performance management program. The Union maintains, in this regard, that Proposal 1 would not substantively modify the Agency's performance standards or interfere with management's right to identify the critical elements of a position. The Union states that the proposal is directed at the application of the QAAP, instead of "the content of the system itself[.]" Id. at 5. For this reason, the Union asserts that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute.
The Union argues that the purposes of the QAAP are incompatible with disciplinary action. Specifically, the Union contends that assessment under the QAAP is designed to reveal employees who lack technical proficiency and are in need of training and that disciplining employees for a lack of proficiency would have an adverse effect on employees.
B. Analysis and Conclusions
1. Meaning of the Proposal
In interpreting a disputed proposal, the Authority looks first to its plain wording and any union statement of intent. If the union's explanation of the proposal comports with the proposal's plain wording, the Authority [ v56 p552 ] adopts that explanation for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 (1996) (Laurel Bay).
By its terms, and as explained by the Union, Proposal 1 would preclude the Agency from taking a disciplinary or performance-based action against an employee on the basis of assessments under the QAAP. In short, the proposal would prevent the Agency from using assessments under the QAAP in any way that would relate to disciplinary or performance-based actions.
2. Proposal 1 Affects Management's Right to Discipline Employees under Section 7106(a)(2)(A) of the Statute
Management's right to discipline employees under section 7106(a)(2)(A) of the Statute extends alike to performance-related and non-performance-related conduct. See, e.g., International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 48 FLRA 516, 535 (1993) (discipline for use or possession of illegal drugs); National Association of Government Employees and U.S. Department of Veterans Affairs, Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 532 (1991) (VAMC, Brockton and West Roxbury) (performance evaluation under chapter 43 cannot be divorced from the right to discipline). Proposals that preclude management from disciplining employees for specified conduct affect management's right to discipline. See, e.g., Association of Civilian Technicians, Inc. Rhode Island Chapter and U.S. Department of Defense, Rhode Island National Guard, Providence, Rhode Island, 55 FLRA 420, 426 (1999); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 416-18 (1987) (proposal restricting content of performance standard restricts the basis on which management can take disciplinary action). Proposals that prevent management from using certain types of information in support of disciplinary action based on conduct or performance also affect the right to discipline. See, e.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 63 (1993); American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63, 69 (1992).
Proposal 1 would preclude the Agency from taking disciplinary action against an employee based on performance-related or non-performance-related actions by the employee identified in an assessment under the QAAP. The proposal would also preclude the Agency from using information derived from such assessments to support a disciplinary or performance-based action. Consequently, based on the precedent set forth above, whether considered in terms of disciplinary action or performance-based action, Proposal 1 affects management's right to discipline employees under section 7106(a)(a)(A) of the Statute. For this reason, severance of the proposal would be unavailing.
In this regard, the Union's claim that the AQL standards employed under the QAAP are not performance standards within the Agency's performance appraisal system does not require a different result. Specifically, assuming that the Agency's current policy is not to take performance-based action against employees under the QAAP because the AQLs do not constitute performance standards that could be used for performance evaluation under chapter 43, [n10] the effect of the proposed preclusion of performance-based discipline would be to incorporate that policy into the parties' agreement.
Proposals that incorporate agency policy governing the exercise of a management right into a collective bargaining agreement constitute independent contractual limitations on that right. See, e.g., National Association of Government Employees, Local R14-52 and U.S. Department of Defense, Defense Finance and Accounting Service, Washington, D.C., 45 FLRA 910, 914 (1992) (Defense Finance and Accounting Service); American Federation of Government Employees, [ v56 p553 ] National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 527 (1991); National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 577 (1981), affirmed National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Although Proposal 1 would not prevent management from incorporating the AQLs into its performance appraisal system under chapter 43, if management should choose to do so, negotiation of the prohibition against the use of the QAAP for performance-based actions into the contract would mean that performance standards derived from the AQLs could not be used as the basis of discipline for performance under chapter 43. Consequently, by incorporating the Agency's current policy against performance-based disciplinary actions under chapter 43 into the parties' agreement, the proposal would prevent the Agency from taking such disciplinary actions if it decided to use the AQLs as performance standards under chapter 43. Accordingly, the proposal in this regard affects management's right to discipline employees under section 7106(a)(2)(A) of the Statute.
The Union does not claim that the proposal constitutes a matter covered by section 7106(b)(1), or that the proposal is a procedure within the meaning of section 7106(b)(2). In addition, we find that the Union's claim that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) is not sufficient under section 2424.25(c)(1) of the Authority's Regulations. Section 2424.25(c)(1)(iii), as relevant here, provides that the content of the union's response to the agency's statement of position "must state the arguments and authorities supporting . . . any assertion that an exception to management's rights applies, including . . . [w]hether and why the proposal" constitutes an appropriate arrangement. Moreover, the Authority's form for filing a union response not only provides for the union to specifically indicate that it is making an appropriate arrangements claim, but, in section 7a. of the form, states in detail the matters that the union must address in order to explain and support that claim. The Union in this case provided none of the specified information. Consequently, we will not address the Union's claim.
Accordingly, we find that Proposal 1 is outside the duty to bargain and dismiss the petition for review as to that proposal.
IV. Proposal 2
The Union will renegotiate Acceptable Quality Level (AQL) every 6 months when there is a change in the AQL. The Union will negotiate all changes in the AQL before they are implemented. The Union recommends a set standard base and a minimum AQL allowance.
A. Positions of the Parties
1. Agency
The Agency states that A··___··QLs "represent the minimum level of performance by an employee that is considered acceptable on a specific maintenance action" and "are a direct means of assessing the quality of employee performance." Statement of Position at 9-10. According to the Agency, the first two sentences of Proposal 2 "clearly state that the union wants to negotiate the actual substantive AQL standard whenever there is to be a change." Id. at 10.
The Agency asserts that management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to determine the quality of work that is required of employees. Because the first two sentences of the proposal would require the Agency to negotiate over the standard for assessing the quality of employees' work, the Agency claims that those sentences affect management's rights to direct employees and assign work.
As to the third sentence of Proposal 2, the Agency claims that it would require the establishment, through negotiations, of a minimum AQL. According to the Agency, the Union explained the sentence as requiring a fixed minimum standard. Because that sentence would require the negotiation of the content of an AQL, the Agency claims that it also affects management's rights to direct employees and assign work.
The Agency claims that severance of the first two sentences and the third sentence would not preserve the negotiability of the third sentence. The Agency claims that the third sentence would establish a fixed standard for determining the quality of work required and would thereby preclude management from changing or revising the standard. In this regard, the Agency disputes the Union's claim that the third sentence does not require a fixed standard, but recommends that the Agency establish such a standard. The Agency states, however, that if the third sentence constitutes a "recommendation to management, that has no binding effect and leaves management free to do whatever it deems appropriate in relation to the establishment and modification of AQL performance [ v56 p554 ] standards, the Agency would withdraw its allegation of non-negotiability[.]" Agency Reply at 3 n.1.
Finally, the Agency claims that "neither of the severed parts of Proposal 2, standing alone, nor the entire proposal" constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. Agency Reply at 5. Specifically, the Agency maintains that the Union has not demonstrated that either severed portion of Proposal 2, or the entire proposal: (1) "mitigates reasonably foreseeable adverse effects flowing from the exercise of the management right to determine the content of AQL performance standards; . . . (2) is sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights." Agency Reply at 4-5. The Agency also contends that the Union has not demonstrated that the proposal "does not excessively interfere with management's reserved rights to direct employees and assign work." Id.
2. Union
The Union notes that the Agency reevaluates and adjusts the AQLs every 6 months and explains that the first two sentences of the proposal would require negotiation every time the AQLs are changed. The Union also states that the third sentence of the proposal recommends the adoption of a fixed standard so as to avoid negotiations every 6 months. According to the Union, the third sentence of the proposal allows management to set a fixed minimum standard. The Union requests that the first two sentences of the proposal and the third sentence be treated separately.
The Union asserts that AQLs are not performance standards under part 430, but are goals derived from "accumulated trend data" under the QAAP. Union Response at 6. The Union contends that it "does not seek to negotiate the content of the AQL 'standard'" because the content of that standard is derived from "group baseline trend analysis." Id.
The Union states that it "seeks to negotiate an appropriate arrangement for employees adversely affected by the application of AQL performance goals." Id.
The Union also states that the third sentence does not require the establishment of a minimum AQL. According to the Union, that sentence "allows management to set a minimum one time standard." Petition for review at 3. The Union also maintains that the use of the term "'recommends'" means that the sentence does not contain a "requirement." Union Response at 7.
B. Analysis and Conclusions
1. Meaning of the Proposal
As worded, the first two sentences of Proposal 2 require the Agency to negotiate AQLs whenever they are changed. Taken literally, those sentences would require the Agency to negotiate over what the AQLs would be. The Union explains that the proposal is not intended to negotiate over the content of the AQLs, which will continue to be established based upon a trend analysis. The Union does not explain, however, over what the parties will negotiate, under the proposal as worded, if it is not over the content of the AQLs. The Union makes no claim, for example, as it does for the third sentence, that the first two sentences concern the impact and implementation of the AQLs. In any event, the wording of the second sentence belies such an intent. That sentence indicates that the Agency would be required to negotiate the "change" in the AQLs "before" that change is implemented. The record indicates that the change in the AQLs that would be involved would be the change in the level of minor findings that would constitute an acceptable quality level for performance of the particular task assessed, that is, the content of the AQLs. The Union's explanation of the first two sentences, therefore, does not comport with the plain wording of those sentences. Consequently, it is the plain wording of the proposal, rather than the Union's explanation, that must govern the negotiability determination. See, e.g., American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1509 (1996).
Accordingly, we do not adopt the Union's explanation of the first two sentences of Proposal 2, but base our negotiability determination on the plain wording of those sentences, which requires the Agency to negotiate the substance of the AQLs. [n11]
As to the third sentence of Proposal 2, by its terms that portion of the proposal constitutes a recommendation that the Agency adopt fixed AQL standards. The Union explains that sentence as allowing the Agency to establish a fixed standard, but not requiring that action. [ v56 p555 ] The Union's explanation comports with the wording of the sentence. See Laurel Bay.
Accordingly, we adopt the Union's explanation and interpret the third sentence of Proposal 2 as allowing the Agency to decide whether to use fixed AQL standards.
2. The First Two Sentences of Proposal 2 Affect Management's Rights to Direct Employees and Assign Work under Section 7106(a)(2)(A) and (B) of the Statute
Management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to establish criteria governing employees' performance of their duties. See, e.g., American Federation of Government Employees, Council of Locals 163 and U.S. Department of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Massachusetts, 52 FLRA 1063, 1065 (1997) (Defense Contract Audit Agency). Moreover, "management's right to prescribe criteria governing employees' performance is not limited to the identification of critical elements and the establishment of performance standards as part of a performance appraisal system under chapter 43 of title 5 of the United States Code." National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 385 (1993), quoting Defense Finance and Accounting Service, 45 FLRA at 913. Consequently, regardless of whether AQLs are performance standards within the meaning of chapter 43, because they constitute criteria governing employees' work performance, they constitute an exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
Proposals that require management to negotiate the substance of the criteria that it uses to assess employees' performance of their duties affect management's rights to direct employees and assign work. See, e.g., Defense Finance and Accounting Service, 45 FLRA at 914. See also Defense Contract Audit Agency, 52 FLRA at 1065. Because the first two sentences of Proposal 2 would require the Agency to negotiate over the substance of changes in the AQLs, those sentences affect management's rights to direct employees and assign work.
The Union does not claim that the proposal constitutes a matter covered by section 7106(b)(1), or that the proposal is a procedure within the meaning of section 7106(b)(2). In addition, we find that the Union's claim that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) is not sufficient under section 2424.25(c)(1) of the Authority's Regulations. As noted above, section 2424.25(c)(1)(iii) provides that the content of the union's response to the agency's statement of position "must state the arguments and authorities supporting . . . any assertion that an exception to management's rights applies, including . . . [w]hether and why the proposal" constitutes an appropriate arrangement. Because the Union in this case has provided none of the specified information, we will not address its claim.
Accordingly, we find that the first two sentences of Proposal 2 are outside the duty to bargain and we dismiss the petition for review as to those sentences.
3. The Agency Withdraws its Allegation of Nonnegotiability as to the Third Sentence of Proposal 2
Both the plain terms of the third sentence, and the Union's explanation thereof, support the conclusion that the sentence constitutes a recommendation that the Agency adopt fixed AQL standards, but does not require that action. The Agency indicated that, if that is the meaning of the third sentence, it would withdraw its allegation of nonnegotiability as to that sentence. [n12] In such circumstances, the Authority will dismiss the petition for review as to the proposal with respect to which the Agency has withdrawn its allegation of nonnegotiability. See, e.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 137 (1995) ("When an agency contends that a provision is negotiable based on a particular interpretation and states that it will withdraw its allegation of nonnegotiability if that interpretation is adopted by the union, there is no longer a dispute as to the negotiability of the provision, if the union agrees with the agency's interpretation.")
V. Order
The petition for review is dismissed.
Footnote # 1 for 56 FLRA No. 86
Because the record in this case provides a sufficient basis for determining the negotiability of the disputed proposals, we deny the Union's request for a hearing under section 2424.31(c) of the Authority's Regulations. See, e.g., United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1189 n.2 (1992).
Footnote # 2 for 56 FLRA No. 86
The following description is based on the affidavit of Major Michael Parks, the Quality Assurance Officer at the Agency's facility (Parks Affidavit), statements in the Agency's Statement of Position, and provisions of the relevant Agency regulations attached to the Union's Response. The Union does not dispute the Agency's description of the programs.
Footnote # 3 for 56 FLRA No. 86
Air Mobility Command Instruction (AMCI) 21-101, June 15, 1995, described "process assessment" as follows:
Section B--Process Assessment (PA)
4.9. PA Concept. One part of Process Improvement and Control. This measures the observed results of documented processes, both in-work (in-progress) and completed (after-action). PA is a mechanism for identifying improvements in established processes that will enhance efficiency, safety, and ultimately, aircraft availability. PAs will identify procedural discipline, experience shortfalls, and other process problems that contribute to reduced maintenance effectiveness. Deficiencies in processes indicate problems with one or more of the following areas: training, equipment, tools, tech data, facilities, or safety. PA is focused on the entire environment surrounding a maintenance activity and how environmental factors (the whole "picture") influence the successful completion of a task or process. . . .
Footnote # 4 for 56 FLRA No. 86
ACMI 21-101, June 15, 1995, Section 4.9.1 provided as follows:
4.9.1. Use of names on the AMC Form 199, Process Assessment (PA) Worksheet, is intrinsically necessary for tracking improvement processes, therefore, PAs will not be used as a basis for disciplinary action, nor are they intended for use as "EPR fodder."
The term "EPR" is not defined in the record.
Footnote # 5 for 56 FLRA No. 86
The revision of ACMI 21-101 current at the time of the filings in this case is dated May 1, 1999.
Footnote # 6 for 56 FLRA No. 86
AMCI 21-101, May 1, 1999, Section 4.7 provides, in relevant part, as follows:
4.7. Quality Assurance Assessment Program (QAAP) Concept. The QAAP is [the Agency's] formal aircraft maintenance program for measuring quality of maintenance, effectiveness of maintenance processes, and charting progress. It exists to provide unit leadership and all maintainers with factual information about health of the maintenance effort. Accurate assessments of personnel proficiency and the processes employed to recover, maintain, inspect, and generate aircraft are critical to gauging maintenance effectiveness. [] QAAP guidance is the framework units build on to establish a program which satisfies command requirements. . . .
Footnote # 7 for 56 FLRA No. 86
A QVR-2 rating indicates that the "evaluated process/product didn't meet the minimum acceptable quality level because of too many minor findings." Parks Affidavit, paragraph 10b. A QVR-3 rating indicates that an evaluated process/product did not meet an acceptable quality level because of major findings. "Major findings" are defined as those conditions that would endanger personnel, jeopardize equipment reliability, or warrant discontinuing process or equipment operations. Parks Affidavit, paragraph 10c.
Footnote # 8 for 56 FLRA No. 86
Where the necessary data do not exist, the AQL is manually calculated. Parks Affidavit, paragraph 18.
Footnote # 9 for 56 FLRA No. 86
According to the Agency, the prohibition against using an assessment for disciplinary purposes was eliminated in the 1998 revisions to ACMI 21-101. Parks Affidavit, paragraph 10. The record does not contain a complete copy of the current version of ACMI 21-101, May 1, 1999.
Footnote # 10 for 56 FLRA No. 86
Discipline for unacceptable performance taken under chapter 43 must be based on an employee's performance with respect to performance standards established pursuant to chapter 43. See, e.g., National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705, 711-12 (1993); VAMC, Brockton and West Roxbury, 41 FLRA at 532 (" . . . performance can result in disciplinary action. Under chapter 43, . . . an agency may reduce in grade or remove an employee based on unacceptable performance"). Discipline based on performance may also be taken against employees under the adverse action provisions of chapter 75 of title 5 of the United States Code, but such actions involve different standards than those applied to actions under chapter 43. Id.; National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94, 103 (1987).
Footnote # 11 for 56 FLRA No. 86
We note in this connection that the AQL for a given task is derived by the application of a formula to previous months' findings with respect to the accomplishment of that task and is, in effect, a factual determination. Because the proposal requires the negotiation of the content of the AQLs, we conclude that the intent of the proposal is to allow negotiation on changing the results derived from the application of the formula.
Footnote # 12 for 56 FLRA No. 86
The Authority has found that "hortatory" proposals are negotiable. See, e.g., New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706, 748 (1987); American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals and U.S. Marshals Service, 15 FLRA 333, 334-35 (1984).