U.S. Federal Labor Relations Authority

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National Association of Independent Labor (Union) and United States, Environmental Protection Agency (Agency)

[ v62 p1 ]

62 FLRA No. 1







January 25, 2007


Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member [n1] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a single proposal. The Agency filed a statement of position, the Union filed a response to that statement, and the Agency filed a reply to the Union's response.

      For the following reasons, we find that the proposal is within the duty to bargain as a procedure under § 7106(b)(2) of the Statute.

II.     Proposal

Section 11. REVIEW OF PERFORMANCE PLANS. Supervisors have the authority to approve a performance plan. However, if an employee believes a performance plan is unreasonable, the employee may request either a higher level management review of his/her performance plan or a review by a Peer Panel. To invoke a Peer Panel review, within ten (10) work days after the supervisor provides the final performance plan, an employee must request the Peer Panel review in writing and state why he/she believes the review is justified. The Agency will then empanel a group of three qualified peers in a similar job series and of equivalent or higher grade level than the employee, and employed by the Agency, to review the disputed performance plan and provide a recommendation to the Division Director. The Union and GED management will jointly decide on a list of qualified peers from which the Peer Panel will be chosen. The Agency will select in a non-prejudicial manner three peers from that list to consider the performance plan and to make recommendations to the Division Director.
The Peer Panel shall review documents submitted by the Parties and if the panel deems it useful, may meet with either the employee or his/her supervisor or both. The Peer Panel shall make a written recommendation to the immediate supervisor and Division Director within twenty-one (21) calendar days of being designated by the Agency. The Peer Panel's recommendation(s) may be to:
1) support the performance plan as written or 2) make its own recommendation as to what in the performance plan needs modification. Within ten (10) days after receiving the Peer Panel's recommendation, the supervisor shall: 1) notify the employee that the original performance plan will stand; or 2) provide the employee with an [sic] modified performance plan.

III.     Meaning of the Proposal

      The Union states that "[t]he proposal is intended to provide a mechanism to attempt resolution of disputes between a supervisor and an employee regarding the establishment of a performance plan." Petition for Review at 1. In this regard, the Union explains that "the purpose of the proposal is to provide employees who disagree with the elements of their performance plan with a mechanism to request and obtain review of the disputed plan by higher-level management or a Peer Panel" and that the "Peer Panel would be only advisory and management would retain the final decision on the performance plan." Record of Post-Petition Conference (Record) at 2.

      With respect to its operation, the Union states that any bargaining unit employees who believe that the performance plan established by their supervisors are unreasonable may request review of the plan by "higher-level management" or a Peer Panel but that the term "higher-level management" was not intended to [ v62 p2 ] specify any particular management official. Rather, it states that management may designate which official would perform the review.

      Turning to the specifics of the Peer Panel operations, the Union states that if an employee chooses the Panel, the Panel would be composed of bargaining unit, non-bargaining unit, or supervisory personnel from the local facility. It states the only limitation on the composition of the Panel is that its members must be in the same or similar job series and at an equivalent or higher grade that the employee seeking review. Further, the Union explains that the head of the local facility, or his or her designee, would determine both who is qualified to serve and which employees could serve on the Panel.

      Finally, the Union states that the Panel may either recommend that the employee's performance plan not be changed or that it be modified. The Union explains that the decision of the Panel is advisory only, but that a supervisor must accept or reject the recommendations. [n2] 

      The Agency states that while it accepts the above as the Union's explanation, it disagrees with this explanation to the extent that: (1) "management persons outside of the Gulf-Breeze facility would be included in the higher-level management review of performance plans"; (2) it "does not agree to the existence of or composition of the `Peer Panel'"; and (3) it "does not agree that modification of performance elements not in dispute would invoke a review of the elements of the modified plan." Agency Reply at 1-2. However, as the Union's interpretation of the proposal is consistent with the plain wording of the proposal, we adopt the Union's interpretation. See Am. Fed'n of State, County & Mun. Employees, Local 2830, 60 FLRA 671, 671 (2005). As such, the Agency's objections do not have any impact on our resolution of the negotiability of this proposal.

IV.     Positions of the Parties

A.      Agency

      The Agency contends that the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute. The Agency maintains that, under § 7106(a)(2)(B), management retains the right to determine the particular tasks that will be assigned to employees and the individuals to whom those tasks will be assigned. According to the Agency, the proposal affects the right to assign work because it "creates a new duty of reviewing performance plans and requires management to assign this duty to specific employees." Agency Statement of Position at 4. Moreover, the Agency asserts that the proposal "attempts to assign work for supervisors who by their position are beyond the scope of [U]nion representation." Id.

      Additionally, the Agency contends that the proposal does not concern a permissive subject of bargaining under § 7106(b)(1) because "it proposes the duty or the work project to be performed," rather than the numbers, types and grades of employees to be assigned to that project. Id. at 5. The Agency also contends that the proposal does not constitute a procedure under § 7106(b)(2) because "it excessively interferes with management's right to assign work by creating new duties[,]" and because "it constitutes an assignment of work that violates management's rights." Id. at 6; Agency Reply at 2. Finally, the Agency argues that the proposal does not constitute an appropriate arrangement within the meaning of § 7106(b)(3) because it does not cure and adverse effect, is not sufficiently tailored, and imposes a disproportionate burden on the exercise of management's right to assign work as compared with the minimal benefit of the recommendation of the panel as to the employee's performance plan.

B.      Union

      The Union contends that the proposal is a negotiable procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3). The Union argues that a proposal only affects management's right to assign work when it specifies which employees are to perform the task at issue and the proposal reserves management's discretion to designate the members of the Panel. Moreover, according to the Union, the Panel only makes a recommendation and management retains the right to decide as to the employee's performance plan.

      The Union asserts that the proposal is a "procedure for the Agency to observe in exercising its right to establish a performance plan" and is "designed to attempt resolution of disputes between a supervisor and an employee regarding the establishment" of such a plan. Union Response (Response) at 2-3. According to the Union, as a procedure, the proposal requires some assignment of work in order to carry out the procedure. However, it states that if the Authority were to find that the proposal affects management's right to assign work, such finding would "nullify" the obligation to bargain over procedures. Id. (citing AFGE, Local 2761, 32 FLRA 1006, 1014-16 (1988)). [ v62 p 3 ]

      The Union also asserts that the proposal is an appropriate arrangement under § 7106(b)(3). The Union maintains that the Agency's change to a five-tier performance appraisal system has the potential for adversely affecting employees' pay, wards, and retention. According to the Union, the proposal would minimize the adverse effect of the five-tier system. The Union states that the proposal is "tailored to compensate employees suffering adverse effects of the exercise of management's rights." Response at 5. Finally, the Union argues that, because the proposal "recognizes management's right to make the decision on the performance plan," it "does not excessively interfere with management's right to establish a performance evaluation system and to establish critical elements and standards." Id. at 4, 5.

V.     Analysis and Conclusions

      The Authority has determined that "proposals . . . that establish committees involving union participation that are outside, or are not an integral part, of management's decision-making process relating to the exercise of its rights under section 7106" constitute procedures within the definition of § 7106(b)(2). NTEU, Chapter 243, 49 FLRA 176, 188 (1994) (Member Armendariz concurring in part and dissenting in part); see also AFGE, Local 1923, 44 FLRA 1405, 1442 (1992); NTEU, 31 FLRA 566, 575 (1988) (a proposal to establish a committee to recommend changes in the agency's performance appraisal system, where the agency retained discretion to accept or reject the recommendations, was held to be a negotiable procedure). In this respect, the Authority has noted that such "committees are parallel to, and supplement, management's decision-making process, usually functioning in an advisory capacity or as a source of nonbinding recommendations to management." NTEU, Chapter 243, 49 FLRA at 188.

      Here, the proposal calls for the creation of such a committee/panel to review an employee's disputed performance plan. Importantly, as set forth above, the recommendations stemming from the committee would be non-binding upon management's ultimate decision. Moreover, the proposal does not require a specific employee or supervisor to serve on the panel, nor does it require a specific supervisor to ultimately determine an employee's performance plan. Cf. NAGE, Local R1-144, 35 FLRA 642 (1990) (proposal granting no discretion to the agency by requiring an employee's immediate supervisor to determine standards and elements does not constitute a negotiable procedure). Therefore, as the proposal is substantively identical to proposals previously found to be within the duty to bargain as procedures and the Agency provides no reason to reach a contrary conclusion here, we find that the proposal constitutes a negotiable procedure within the meaning of § 7106(b)(2).

      As the Authority has made clear, § 7106(b) is an exception to § 7106(a). See NLRB, Washington, D.C., 61 FLRA 154, 161 (2005) (citing United States Dep't of Commerce, Patent & Trademark Office, 54 FLRA 360, 374 (1998)). Consistent with that view of § 7106, "[t]he Authority has consistently held that proposals establishing procedures under § 7106(b)(2) are negotiable, even if some action is required to implement the procedure." NATCA, AFL-CIO, 61 FLRA 336, 339 (2005). Consequently, consistent with this precedent, because the proposal constitutes a procedure within the meaning of § 7106(b)(2), it is within the duty to bargain.

      Finally, because the proposal is negotiable under § 7106(b)(2), it is not necessary to address the Union's claim that the proposal constitutes an appropriate arrangement within the meaning of § 7106(b)(3).

VI. Order

      The proposal is within the duty to bargain, and the Agency shall, upon request or as otherwise agreed to by the parties, bargain with the Union.

Concurring opinion of Chairman Cabaniss:

      I write separately to address an issue not raised by the parties but which ultimately needs to be resolved in this and similar cases involving whether a proposal or provision (that affects the exercise of a management right under 5 U.S.C. § 7106) constitutes a proposal under 5 U.S.C. § 7106(b)(2).

      As reflected by various judicial precedent, e.g., Dep't of the Treasury, Bureau of Alcohol, Tobacco & Firearms v. FLRA, 857 F. 2d 819 (D.C. Cir. 1988), the Authority's "acting-at-all" and "directly interfere" tests play a part in determining whether certain bargaining language constitutes a negotiable procedure. As also reflected in that decision, however, the application of these various standards is not without challenge and certainly cannot be accomplished in a "theoretical vacuum." Id. at 821. Moreover, our precedent in this area is not at all clear as to what these terms mean, and that precedent involves a variety of other considerations such as substantive vs. procedural matters and the timing as to "when" a management right may be exercised. See, e.g., AFGE, Local 1345, 48 FLRA 168, 175 (1993) (Member Armendariz dissenting in part and concurring in part). I believe it would be beneficial at some point in time to review these seemingly disparate considerations in an attempt to bring a better sense of order to the analytical model to be used to resolve whether a matter constitutes a procedure under § 7106(b)(2).

Footnote # 1 for 62 FLRA No. 1 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.

Footnote # 2 for 62 FLRA No. 1 - Authority's Decision

   The Union states that the term "supervisor" used throughout the proposal refers to an employee's immediate supervisor, or anyone who has the right to hire and terminate employees, or take any other supervisory actions on behalf of the Agency. Record at 2.