13:0578(96)NG - AFSCME and Justice -- 1984 FLRAdec NG

 13 FLRA No. 96
 
 AMERICAN FEDERATION OF STATE,
 COUNTY AND MUNICIPAL
 EMPLOYEES, AFL-CIO, COUNCIL 26
 Union
 
 and
 
 U.S. DEPARTMENT OF JUSTICE
 Agency
 
                                            Case No. O-NG-529
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The issue presented
 is the negotiability of the following proposal:
 
                              Union Proposal
 
          Section 11.3.  RATING LEVELS:  There will be five rating levels
       for individual elements of an employee's position:
       unsatisfactorily, minimally satisfactory, fully successful,
       excellent, and outstanding.  There will be three rating levels for
       overall performance:  unsatisfactory, satisfactory, and
       outstanding.  An employee will be rated unsatisfactory if one or
       more individual critical elements is rated unsatisfactory.  To
       receive an outstanding performance rating, the employee must
       demonstrate outstanding performance in a majority of the critical
       elements of the position and no individual performance element may
       be less than fully successful.
 
                       Question Before the Authority
 
    The question presented is whether, as alleged by the Agency, the
 Union's proposal is inconsistent with management's rights to direct
 employees in the agency and to assign work under, respectively, section
 7106(a)(2)(A) and (B) of the Statute.
 
                                  Opinion
 
    Conclusion and Order:  The Union's proposal is inconsistent with the
 rights to direct employees and to assign work under section
 7106(a)(2)(A) and (B).  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.
 
    Reasons:  The last two sentences of the proposal would establish what
 quality of performance in individual job elements would be required to
 achieve a particular summary rating.
 
    In National Treasury Employees Union and Department of the Treasury,
 Bureau of the Public Dept, 3 FLRA 769, 776-78(1980), affirmed sub nom.
 National Treasury Employees Union v. Federal Labor Relations Authority,
 691 F.2d 553, 556-57, 564 (D.C.Cir 1981), it was held that, in order to
 achieve the levels of productivity and quality needed to accomplish an
 agency's mission and functions, management may determine, pursuant to
 its rights to assign work and direct employees, what work will be done,
 by whom, when, and what standards of quality and quantity are expected.
 Thus, in that case the Authority found a proposal to establish a
 particular critical element and a performance standard with respect to
 that element outside the duty to bargain.  Thereafter, in National
 Treasury Employees Union and U.S. Nuclear Regulatory Commission, 13 Flra
 no. 49(1983), the Authority held that those management rights extend to
 the establishment of the job requirements, i.e., productivity or
 performance standards, for individual job elements which serve as the
 basis for encouraging and rewarding successful performance and
 discouraging and remedying performance which is unacceptable.  /1/
 
    Some rewards or sanctions are based on overall performance /2/ while
 others are based on an employee's performance in a single job element.
 /3/ Thus, as to overall performance as well as performance in each job
 element, an essential aspect of management's assignment of work and the
 supervision and guidance of employees in the performance of their work
 is to establish job requirements for various levels of performance so as
 to achieve the quality and amount of work needed from employees to
 effectively and efficiently fulfill the agency's mission and functions.
 Consequently, the portion of the Union's proposal which would establish
 the particular levels of performance in individual job elements which
 would be required to achieve a particular summary rating for overall
 performance is not within the duty to bargain because it is inconsistent
 with management's rights to assign work and to direct employees.  Of
 course, a proposal which would permit an employee to grieve the
 application to that employee of the performance requirements established
 by management would be within the duty to bargain.  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) Proposal 4), affirmed sub nom.
 American Federation of Government Employees, AFL-CIO, Local 1968 v.
 Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir. 1982), cert.
 denied, . . . U.S. . . . , 103 S.Ct. 2085(1983).
 
    The proposal would also establish in the first two sentences the
 number of rating levels for the appraisal of an employee's performance
 in individual job elements and for a summary appraisal of overall
 performance.  In affirming the Bureau of the Public Debt decision
 discussed above, the United States Court of Appeals for the District of
 Columbia stated:
 
          Without a doubt, the right to determine what work will be done,
       and by whom and when it is to be done, is at the very core of
       successful management of the employer's business, whether a
       private-sector enterprise or the public service operations of a
       federal agency.  It follows necessarily that this right is
       essential to management's ability to achieve optimum productivity,
       and accordingly to the agency's ability to function in an
       effective manner.  The Authority's construction of Section 7106(a)
       as a reservation of this invaluable right to management, thereby
       insulating it from dilution at the bargaining table, is thus fully
       obedient to the congressional command that the Act be interpreted
       in a manner consistent with the exigencies of efficient
       government.
 
    691 F.2d at 563.  The number of performance levels for both
 individual job elements and overall performance are essential aspects of
 the rights to assign work and direct employees.  The determination of
 the number of performance levels directly affects the degree of
 precision with which management can establish and communicate job
 requirements (performance standards), the range of judgments which
 management can make regarding performance in the context of performance
 appraisals, and the range of rewards and sanctions which management can
 apply to such performance.  /4/ In short, the number of such levels is
 integrally related to the effectiveness of an agency's using performance
 standards to accomplish the work of the agency in a manner consistent
 with the exigencies of effective government.  Consequently, the portion
 of the Union's proposal which would establish the number of rating
 levels for each job element and for overall appraisals is, for that
 reason alone, not within the duty to bargain.  Moreover, as to
 performance levels for individual job elements, that portion of the
 proposal would have the additional effect of determining the number of
 performance standards or requirements which must or may be established
 by management.  /5/ That is, the proposal herein permits management to
 establish, at a minimum, two performance standards for each job element
 and, at a maximum, five such standards.  Since, as previously discussed,
 management has the right to establish performance standards, any
 proposal, such as the proposal in dispute herein, which would prevent
 management from doing so or which would require it to establish a
 performance standard would directly interfere with that right.  In sum,
 for the foregoing reasons, the instant proposal is outside the duty to
 bargain since it would directly interfere with management's rights to
 direct employees and assign work pursuant to section 7106(a)(2)(A) and
 (B) of the Statute.  /6/
 
    Issued, Washington, D.C., January 10, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The results of a performance appraisal are the basis of the
 following incentives and sanctions:  within-grade salary increases,
 merit promotions, recognition and awards, retention standing in a
 reduction-in-force, completion of probationary period, reassignment,
 reduction in grade, and removal.  Chapter 430, Federal Personnel Manual,
 Appendix A, section A-2b.
 
 
    /2/ For example, in order to attain a within-grade salary increase,
 absent unusual circumstances, an employee's overall performance must be
 at the fully acceptable level, 5 CFR 531.403 (1982).  Similarly each
 employee who has an "outstanding" performance rating, or its equivalent,
 shall receive four additional years of service toward his or her
 retention standing in connection with a reduction-in-force.  5 CFR
 351.504(1982).
 
 
    /3/ Under regulations issued by the Office of Personnel Management,
 performance by an employee below the minimum standard established by
 management in any critical element requires the denial of a within-grade
 increase.  5 CFR 430.202(e)(1982).
 
 
    /4/ An agency's use of performance appraisals in connection with a
 reduction-in-force to assign an amount of service credit for performance
 which exceeds the minimum acceptable performance standards is one
 example of how management may use various performance appraisal levels
 to encourage and reward progressively better performance.  5 CFR
 351.504(1982).
 
 
    /5/ See Federal Personnel Manual Letter 430-4, March 24, 1981 at 1.
 
 
    /6/ See National Federation of Federal Employees, Local 1028 and
 Department of the Army, Corps of Engineers, Norfolk District, Norfolk,
 Virginia, 7 FLRA No. 17 (1981).