[ v03 p769 ]
03:0769(119)NG
The decision of the Authority follows:
3 FLRA No. 119
NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization)
and
DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT
(Activity)
Case No. 0-NG-56
DECISION ON NEGOTIABILITY ISSUES
THIS CASE 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) (5 U.S.C. 7101 ET
SEQ.).
UNION PROPOSAL
ACCOUNTS MAINTENANCE CLERKS, GS-502-3/5, MUST MAINTAIN THE FOLLOWING
MINIMUM RATES:
A. TO RETAIN HIS/HER POSITION INCUMBENT MUST PROCESS 9.0 BATCHES PER
HOUR.
B. TO RECEIVE A WITHIN-GRADE STEP INCREASE INCUMBENT MUST PROCESS
9.0 BATCHES PER HOUR.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE BECAUSE IT VIOLATES THE
FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, AS ALLEGED BY THE
AGENCY.
OPINION
CONCLUSION: SUBSECTION A OF THE UNION'S PROPOSAL ESTABLISHING A
SPECIFIC NUMBER OF BATCHES PER HOUR AS THE MINIMUM STANDARD FOR JOB
RETENTION IS WITHIN THE FRAMEWORK OF THE RIGHT OF MANAGEMENT TO DIRECT
ITS EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106(A) OF THE STATUTE.
HOWEVER, CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION
7101 OF THE STATUTE THAT EMPLOYEES PARTICIPATE THROUGH LABOR
ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISIONS WHICH AFFECT THEM, AND
OTHER SECTIONS DISCUSSED HEREINAFTER, THE AGENCY'S RIGHT TO IDENTIFY
CRITICAL ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS UNDER SECTION
7106(A) IS SUBJECT TO CERTAIN RIGHTS OF LABOR ORGANIZATION UNDER THE
STATUTE. SPECIFICALLY, UNDER SECTION 7117, AS TO UNITS OF EXCLUSIVE
RECOGNITION, IT IS WITHIN THE DUTY OF THE AGENCY TO BARGAIN, CONSISTENT
WITH LAW AND REGULATION, ON ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS
OTHER THAN IDENTIFICATION OF CRITICAL ELEMENTS AND CONTENT OF
PERFORMANCE STANDARDS. THE DUTY TO BARGAIN EXTENDS TO, AMONG OTHER
MATTERS, THE FORM OF THE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT OF
PERFORMANCE STANDARDS REQUIRED UNDER SECTION 4302 OF THE CIVIL SERVICE
REFORM ACT (CSRA). IN THIS CONNECTION, SECTION 4302 IN ITS REFERENCE TO
PARTICIPATION OF EMPLOYEES IN ESTABLISHING PERFORMANCE STANDARDS REFERS
TO ALL EMPLOYEES, WHETHER REPRESENTED OR UNREPRESENTED.
FURTHERMORE, SECTION 7106(A) IS SUBJECT TO SECTION 7106(B). UNDER
SECTION 7106(B)(2) AN AGENCY HAS THE DUTY TO BARGAIN ON PROCEDURES WHICH
MANAGEMENT OFFICIALS WILL OBSERVE IN THE DEVELOPMENT AND IMPLEMENTATION
OF PERFORMANCE STANDARDS AND CRITICAL ELEMENTS; AND, UNDER SECTION
7106(B)(3), ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED
BY THE APPLICATION OF PERFORMANCE STANDARDS TO THEM. IN ADDITION, UNDER
SECTION 7114 OF THE STATUTE, THE AGENCY MUST AFFORD AN EXCLUSIVE
REPRESENTATIVE THE OPPORTUNITY TO BE PRESENT AT ANY FORMAL DISCUSSION
BETWEEN AN AGENCY REPRESENTATIVE AND A UNIT EMPLOYEE REGARDING THE
ESTABLISHMENT OR THE IMPLEMENTATION OF PERFORMANCE STANDARDS AND
CRITICAL ELEMENTS AND, WHEN REQUESTED, AT ANY INVESTIGATORY INTERVIEW OF
A UNIT EMPLOYEE WHO REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINE FOR UNACCEPTABLE PERFORMANCE UNDER SECTION 4303 OF THE
CSRA. FINALLY, THE RIGHT OF AN AGENCY UNDER SECTION 7106(A) TO IDENTIFY
CRITICAL ELEMENTS AND ESTABLISH PERFORMANCE STANDARDS IS SUBJECT TO THE
RIGHT OF AN EMPLOYEE AGAINST WHOM DISCIPLINARY ACTION HAS BEEN TAKEN.
THE EMPLOYEE HAS A RIGHT TO CHALLENGE SUCH ACTION UNDER THE APPELLATE
PROCEDURES OF SECTION 7701 OF THE CSRA OR UNDER A NEGOTIATED GRIEVANCE
PROCEDURE PURSUANT TO SECTION 7121 OF THE STATUTE. IN REFERENCE TO
SUBSECTION B OF THE PROPOSAL, IT IS DETERMINED THE INSTANT PROPOSAL IS
OUTSIDE THE AGENCY'S DUTY TO BARGAIN BECAUSE IT CONFLICTS WITH AN
APPLICABLE GOVERNMENT-WIDE REGULATION (5 CFR 531.407(C)(1)).
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10), THE AGENCY ALLEGATION THAT THE PROPOSAL IS
NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
REASONS: THE UNION'S PROPOSAL IN THIS CASE WOULD ESTABLISH, IN
SUBSECTION A, THE STANDARDS AN EMPLOYEE MUST MEET IN ORDER TO CONTINUE
IN THE EMPLOYMENT OF THE AGENCY AND, IN SUBSECTION B, TO RECEIVE AN
INCREASE IN PAY. THE UNION TIMELY APPEALED TO THE AUTHORITY UNDER
SECTION 7117(C) OF THE STATUTE FROM THE AGENCY'S ALLEGATION THAT THE
PROPOSAL WAS OUTSIDE THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
SECTION 7114(A)(4), AS RELEVANT HEREIN, PROVIDES AS FOLLOWS:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
* * * *
(4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE
UNIT IN THE AGENCY,
THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
FAITH FOR THE PURPOSES
OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT . . .
SECTION 7114(B)(2) STATES THAT THE DUTY TO NEGOTIATE IN GOOD FAITH
SHALL INCLUDE THE OBLIGATION "TO DISCUSS AND NEGOTIATE ON ANY CONDITION
OF EMPLOYMENT." CONDITIONS OF EMPLOYMENT ARE DEFINED IN SECTION
7103(A)(14) AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
* * * *
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
(A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER III
OF CHAPTER 73 OF THIS
TITLE;
(B) RELATING TO THE CLASSIFICATION OF ANY POSITION; OR
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE . . .
SECTION 7117(A)(1) FURTHER DESCRIBES THE DUTY TO BARGAIN IN GOOD
FAITH AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THUS, THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF
THE STATUTE EXTENDS TO CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL
POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, AFFECTING
EMPLOYEES IN A UNIT OF EXCLUSIVE RECOGNITION UNLESS THE MATTERS PROPOSED
FOR BARGAINING ARE INCONSISTENT WITH FEDERAL LAW OR GOVERNMENT-WIDE RULE
OR REGULATION.
THE NEGOTIABILITY OF SUBSECTION A OF THE UNION'S PROPOSAL STANDS OR
FALLS ON THE DETERMINATION OF WHETHER IT IS INCONSISTENT WITH FEDERAL
LAW OR GOVERNMENT-WIDE RULE OR REGULATION UNDER SECTION 7117(A)(1). IN
THIS REGARD, THE AGENCY ALLEGES IN PART THAT, BY REQUIRING IT TO ADOPT A
STANDARD OF NINE BATCHES AN HOUR, THE PROPOSAL CONFLICTS WITH ITS RIGHT
TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE BY
PREVENTING THE AGENCY FROM REQUIRING OF AN EMPLOYEE THAT HE OR SHE
PERFORM WORK BEYOND THAT WHICH IS REQUIRED UNDER THE STANDARD; AND WITH
ITS RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) BY, AMONG OTHER
THINGS, LIMITING THE AMOUNT OF WORK WHICH CAN BE ASSIGNED. /1/
IN ORDER TO DETERMINE WHETHER THE PROPOSAL IDENTIFYING A CRITICAL
ELEMENT AND ESTABLISHING A PERFORMANCE STANDARD CONCERNS MATTERS WHICH
CONSTITUTE AN EXERCISE OF THE RIGHTS RESERVED TO MANAGEMENT UNDER
SECTION 7106 OF THE STATUTE, IT IS NECESSARY TO EXAMINE THE NATURE OF
PERFORMANCE APPRAISAL SYSTEMS AS PROVIDED FOR IN TITLE II OF THE CRSA.
SECTION 4302 OF THE CSRA /2/ REQUIRES EACH AGENCY TO DEVELOP ONE OR
MORE PERFORMANCE APPRAISAL SYSTEMS AND STATES THE BASIC REQUIREMENTS OF
SUCH SYSTEMS. BEFORE DISCUSSING THE NATURE OF PERFORMANCE APPRAISAL
SYSTEMS, REFERENCE IS MADE TO THE REQUIREMENT THAT EACH PERFORMANCE
APPRAISAL SYSTEM ENCOURAGE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT
OF PERFORMANCE STANDARDS. THE UNION TAKES THE POSITION THAT THE ANSWER
TO WHETHER THE DISPUTED PROPOSAL HEREIN IS WITHIN THE DUTY TO BARGAIN IS
NOT FOUND IN SECTION 4302. /3/ THE AUTHORITY AGREES.
SECTION 4302 MAKES NO DISTINCTIONS BETWEEN AN AGENCY'S RESPONSIBILITY
TO ENCOURAGE PARTICIPATION BY EMPLOYEES WITHIN UNITS OF EXCLUSIVE
RECOGNITION AND UNREPRESENTED EMPLOYEES. THUS, THIS SECTION COVERS BOTH
REPRESENTED AND UNREPRESENTED EMPLOYEES AND DOES NOT SPECIFY THE FORM
WHICH SUCH EMPLOYEE PARTICIPATION MUST TAKE. AS MORE FULLY DISCUSSED ON
PAGE 10, INFRA, THE DUTY TO BARGAIN EXTENDS TO, AMONG OTHER MATTERS, THE
FORM OF THE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT OF PERFORMANCE
STANDARDS REQUIRED UNDER SECTION 4302 OF THE CSRA; AND THE INTENT OF
THE STATUTE AND THE EXPRESS PROVISIONS OF SECTION 7114 REQUIRE THAT AN
EXCLUSIVE REPRESENTATIVE BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT
CERTAIN MEETINGS BETWEEN MANAGEMENT AND EMPLOYEES RELATING TO THE
DEVELOPMENT AND IMPLEMENTATION OF PERFORMANCE SYSTEMS. IN SUMMARY, IT
IS THE STATUTE, AND NOT SECTION 4302, WHICH CONTROLS WHETHER THE
IDENTIFICATION OF CRITICAL ELEMENTS AND THE CONTENT OF PERFORMANCE
STANDARDS ARE WITHIN THE SCOPE OF THE DUTY TO BARGAIN.
TURNING TO THE NATURE OF PERFORMANCE APPRAISAL SYSTEMS, UNDER SECTION
4302 EACH SYSTEM MUST PROVIDE FOR ESTABLISHING "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 FOR EACH EMPLOYEE OR POSITION UNDER THE
SYSTEM." SECTION 4301 OF THE CSRA DEFINES "UNACCEPTABLE PERFORMANCE" AS
"PERFORMANCE OF AN EMPLOYEE WHICH FAILS TO MEET ESTABLISHED PERFORMANCE
STANDARDS IN ONE OR MORE OF THE CRITICAL ELEMENTS OF SUCH EMPLOYEE'S
POSITION." PERFORMANCE STANDARDS DEVELOPED WITH EMPLOYEE PARTICIPATION
ARE A MEASURE OF AN EMPLOYEE'S PERFORMANCE IN CRUCIAL ASPECTS OF THE
EMPLOYEE'S POSITION, AND "UNACCEPTABLE PERFORMANCE" IS THE FAILURE TO
ACCOMPLISH THE REQUIREMENTS OF THE JOB AS STATED IN THE STANDARD FOR
THAT ASPECT OF THE POSITION. SECTION 4302(B)(4) PROVIDES FOR
RECOGNITION AND REWARD OF EMPLOYEES WHOSE PERFORMANCE SO WARRANTS.
SECTION 4302(B)(5) AND (6) PROVIDES FOR ASSISTANCE TO EMPLOYEES IN
IMPROVING UNACCEPTABLE PERFORMANCE AND ACTION AGAINST EMPLOYEES WHO
CONTINUE TO PERFORM UNACCEPTABLY.
THE OFFICE OF PERSONNEL MANAGEMENT (OPM) IS AUTHORIZED UNDER SECTION
4302(B) TO ISSUE REGULATIONS IMPLEMENTING THE STATUTORY REQUIREMENTS
REGARDING PERFORMANCE APPRAISAL SYSTEMS. AS RELEVANT TO THE DISPUTE
HEREIN, OPM HAS, BY REGULATION, DEFINED THE TERMS "PERFORMANCE
STANDARDS" AND "CRITICAL ELEMENT:" /4/
"PERFORMANCE STANDARDS" ARE THE EXPRESSED MEASURE OF THE LEVEL OF
ACHIEVEMENT ESTABLISHED
BY MANAGEMENT FOR THE DUTIES AND RESPONSIBILITIES OF A POSITION OR
GROUP OF
POSITIONS. PERFORMANCE STANDARDS MAY INCLUDE, BUT ARE NOT LIMITED
TO, ELEMENTS SUCH AS
QUANTITY, QUALITY, AND TIMELINESS.
"CRITICAL ELEMENT" MEANS A COMPONENT OF AN EMPLOYEE'S JOB THAT IS OF
SUFFICIENT IMPORTANCE
THAT PERFORMANCE BELOW THE MINIMUM STANDARD ESTABLISHED BY MANAGEMENT
REQUIRES REMEDIAL ACTION
AND DENIAL OF A WITHIN-GRADE INCREASE, AND MAY BE THE BASIS FOR
REMOVING OR REDUCING THE GRADE
LEVEL OF THAT EMPLOYEE. SUCH ACTION MAY BE TAKEN WITHOUT REGARD TO
PERFORMANCE ON OTHER
COMPONENTS OF THE JOB.
THUS, IN TERMS OF THE LAW AND IMPLEMENTING REGULATIONS, PERFORMANCE
STANDARDS ESTABLISH THE MINIMUM LEVEL OF JOB PERFORMANCE REQUIRED OF AN
EMPLOYEE WITH REGARD TO THE DUTIES AND RESPONSIBILITIES OF THE
EMPLOYEE'S JOB. CRITICAL ELEMENTS ARE THOSE COMPONENTS OF THE JOB WHICH
ARE OF SUFFICIENT IMPORTANCE THAT FAILURE TO ACHIEVE THE LEVEL OF
PERFORMANCE ESTABLISHED IN THE PERFORMANCE STANDARD REQUIRED REMEDIAL
ACTION. /5/ AS ALREADY NOTED, PERFORMANCE STANDARDS MUST BE DEVELOPED
WITH EMPLOYEE PARTICIPATION AND UNION INVOLVEMENT, AS MORE FULLY
DISCUSSED ON PAGES 10-11, INFRA.
THE DESCRIPTION OF THE STATUTORY AND REGULATORY REQUIREMENTS FOR
PERFORMANCE APPRAISAL SYSTEMS, OUTLINED ABOVE, ESTABLISHES A DIRECT
RELATIONSHIP BETWEEN THE CONTENT OF PERFORMANCE STANDARDS AND THE
IDENTIFICATION OF CRITICAL ELEMENTS AND THE RIGHT OF AN AGENCY TO DIRECT
EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE AND TO ASSIGN WORK
UNDER SECTION 7106(A)(2)(B) OF THE STATUTE. ALTHOUGH SIGNIFICANT
ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS MAY BE NEGOTIATED, ANALYSIS OF
THE RIGHTS OF MANAGEMENT TO DIRECT ITS EMPLOYEES AND ASSIGN WORK UNDER
SECTION 7106(A) OF THE STATUTE, AS SUBJECT TO SECTION 7106(B), LEADS TO
THE CONCLUSION THAT IDENTIFICATION OF CRITICAL ELEMENTS AND
ESTABLISHMENT OF PERFORMANCE STANDARDS CONSTITUTE AN EXERCISE OF THE
AFOREMENTIONED MANAGEMENT RIGHTS.
THE RIGHT TO DIRECT EMPLOYEES IN THE AGENCY IS NOT DEFINED IN THE
STATUTE, IS NOT SPECIFICALLY DISCUSSED IN THE LEGISLATIVE HISTORY AND
HAS NOT BEEN APPLIED IN PRIOR DECISIONS OF THE AUTHORITY. THEREFORE,
CONSISTENT WITH THE MAIN PURPOSE AND MEANING OF THE STATUTE AND IN THE
ABSENCE OF ANY INDICATION THAT THE PHRASE AS USED IN THE STATUTE HAS A
MEANING OTHER THAN ITS ORDINARY MEANING, /6/ THE RIGHT "TO DIRECT . . .
EMPLOYEES IN THE AGENCY" MEANS TO SUPERVISE AND GUIDE THEM IN THE
PERFORMANCE OF THEIR DUTIES ON THE JOB.
THE RIGHT TO ASSIGN WORK TO EMPLOYEES OR POSITIONS UNDER SECTION
7106(A), SUBJECT TO THE PROVISIONS OF SECTION 7106(B), IS COMPOSED OF
TWO DISCRETIONARY ELEMENTS: (1) THE PARTICULAR DUTIES AND WORK TO BE
ASSIGNED, AND (2) THE PARTICULAR EMPLOYEES TO WHOM OR POSITIONS TO WHICH
IT WILL BE ASSIGNED. /7/ FURTHERMORE, MANAGEMENT DISCRETION IN THIS
REGARD INCLUDES THE RIGHT TO ASSIGN GENERAL CONTINUING DUTIES, /8/ TO
MAKE SPECIFIC PERIODIC WORK ASSIGNMENTS TO EMPLOYEES, /9/ TO DETERMINE
WHEN SUCH ASSIGNMENTS WILL OCCUR /10/ AND TO DETERMINE WHEN THE WORK
WHICH HAS BEEN ASSIGNED WILL BE PERFORMED. /11/
IN THE CIRCUMSTANCES OF THIS CASE, THE RIGHTS TO DIRECT EMPLOYEES AND
ASSIGN WORK ARE EXERCISED THROUGH SUPERVISING AND DETERMINING THE
QUANTITY AND TIMELINESS OF WORK PRODUCTION, AND ESTABLISHING PRIORITIES
FOR ITS ACCOMPLISHMENT. THE ESTABLISHING OF "CRITICAL ELEMENTS" AND
"PERFORMANCE STANDARDS" AS PROVIDED FOR IN LAW AND DEFINED BY REGULATION
ARE AMONG THE WAYS IN WHICH MANAGEMENT SUPERVISES AND DETERMINES THE
QUALITY, QUANTITY, AND TIMELINESS OF WORK REQUIRED OF EMPLOYEES. MORE
PARTICULARLY, UNDER SECTION 4302 OF THE CSRA AND OPM REGULATIONS, A
PERFORMANCE STANDARD WITH RESPECT TO A CRITICAL ELEMENT OF AN EMPLOYEE'S
JOB DETERMINES THE LEVEL OF WORK PERFORMANCE, I.E., WHETHER IN TERMS OF,
AMONG OTHER THINGS, QUANTITY, QUALITY, OR TIMELINESS, WHICH IS
ACCEPTABLE FOR, E.G., JOB RETENTION, AS EXPRESSED IN THE DISPUTED
PROPOSAL. IN ASSESSING THE WORK WHICH MUST BE DONE TO ACCOMPLISH ITS
MISSION, THE AGENCY MAKES DETERMINATIONS BASED UPON ITS RESOURCES AS TO
THE AGGREGATE LEVEL OF OUTPUT REQUIRED TO MEET THE NEED FOR ITS
SERVICES. AN INTEGRAL PART OF ACCOMPLISHING THIS MISSION IS ASSIGNING
WORK AND ESTABLISHING PRIORITIES. THESE DECISIONS, WHEN EXPRESSED IN
TERMS OF AN INDIVIDUAL EMPLOYEE'S JOB, TRANSLATE INTO PERFORMANCE
STANDARDS, THAT IS, THE QUALITY AND AMOUNT OF WORK NEEDED FROM EACH
EMPLOYEE IN ORDER TO ACHIEVE THE AGENCY'S MISSION AND FUNCTIONS. IN
THIS CONNECTION, THE LEGISLATIVE HISTORY OF THE CSRA SHOWS CONGRESSIONAL
CONCERN WITH PROMOTING GOVERNMENT EFFECTIVENESS AND EFFICIENCY, WITH THE
DEVELOPMENT OF EMPLOYEE PERFORMANCE STANDARDS AND CRITICAL ELEMENTS TO
ACHIEVE THIS END, AND ENCOURAGING EMPLOYEE PARTICIPATION IN THE
ESTABLISHMENT OF SUCH PERFORMANCE STANDARDS. /12/
PERFORMANCE STANDARDS ARE NOT MERELY MEASURES OF EMPLOYEE
PERFORMANCE. THEY GO TO THE LEVELS OF OUTPUT AND THE QUALITY OF THE
WORK PRODUCT. IN THIS CASE, SUBSECTION A OF THE DISPUTED PROPOSAL WOULD
ESTABLISH A MINIMUM REQUIREMENT FOR JOB RETENTION OF 9 BATCHES PER HOUR.
WHILE THAT STANDARD COULD BE SIGNIFICANT IN TERMS OF EVALUATING THE
PERFORMANCE OF INDIVIDUAL EMPLOYEES, IT ALSO WOULD ESTABLISH A LEVEL OF
OUTPUT WHICH IS REQUIRED IN TERMS OF THE AGENCY'S DIRECTING EMPLOYEES
AND ASSIGNING WORK.
THE UNION ARGUES ITS PROPOSAL WOULD HAVE BEEN FOUND TO BE WITHIN THE
DUTY TO BARGAIN PURSUANT TO A CITED DECISION OF THE FEDERAL LABOR
RELATIONS COUNCIL UNDER E.O. 1491. /13/ APART FROM OTHER
CONSIDERATIONS, THE PRECEDENT RELIED UPON IS INAPPLICABLE IN THE
CIRCUMSTANCES OF THE PRESENT CASE. THE PERFORMANCE STANDARDS AND
CRITICAL ELEMENTS WHICH ARE THE SUBJECT OF THE INSTANT DISPUTE ARE
DEFINED BY AND MUST CONFORM TO THE REQUIREMENTS OF CHAPTER 43 OF THE
CSRA, WHICH DIFFER APPRECIABLY FROM THE PERFORMANCE APPRAISAL PRACTICES
WHICH WERE IN EFFECT AT THE TIME OF THE COUNCIL'S DECISION. FURTHER, IN
THE CITED CASE, THE COUNCIL HELD, IN EFFECT, THAT THE UNION'S PROPOSED
PROCEDURE CONCERNING THE METHOD FOR SETTING PRODUCTION GOALS AND
DESIGNATING VARIOUS LEVELS OF INDIVIDUAL PRODUCTION AS PRIMA FACIE
EVIDENCE IN EVALUATING AN EMPLOYEE'S PERFORMANCE WITH RESPECT TO THAT
FACTOR, DID NOT CONFLICT WITH ANY RESERVED MANAGEMENT RIGHTS.
HOWEVER, IN THE INSTANT CASE, THE UNION'S PROPOSAL IS NOT PROCEDURAL.
IT WOULD REQUIRE THE AGENCY TO BARGAIN OVER ITS STATUTORY AUTHORITY TO
DIRECT EMPLOYEES AND ASSIGN WORK. IT SPECIFIES A CRITICAL ELEMENT OF AN
EMPLOYEE'S JOB AND THE PERFORMANCE STANDARD WITH RESPECT TO THE JOB
ELEMENT WHICH MUST BE MET FOR JOB RETENTION, THEREBY DIRECTLY
INTERFERING WITH THE STATUTORY RIGHT OF MANAGEMENT TO DIRECT EMPLOYEES
AND ASSIGN WORK. AS DISCUSSED HEREINAFTER, THESE RIGHTS ARE SUBJECT TO
SECTION 7106(B)(2) AND (3) WHICH REQUIRES MANAGEMENT TO NEGOTIATE ON
PROCEDURES AND APPROPRIATE ARRANGEMENTS WITH RESPECT TO EMPLOYEES
ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RIGHTS.
THE UNION ALSO ASSERTS THE LEGISLATIVE HISTORY OF SECTION 7106
INDICATES AN INTENT THAT PERFORMANCE STANDARDS BE SUBJECT TO THE DUTY TO
BARGAIN. IN SUPPORT OF THIS ASSERTION, IT CITES THE FOLLOWING STATEMENT
OF CONGRESSMAN UDALL: /14/
THE INTENT OF THIS PROVISION (SECTION 7106(A)(2)(C)) IS TO PRESERVE
AS BARGAINABLE (TO THE
EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS) THE STANDARDS,
CRITERIA, AND PROCEDURES
FOR ESTABLISHING PROMOTION CERTIFICATES, WHILE ENSURING MANAGEMENT'S
RIGHT TO MAKE THE ACTUAL
SELECTION FROM THE CERTIFICATE, OR TO MAKE THE APPOINTMENT FROM ANY
OTHER APPROPRIATE SOURCE.
THE UNION CLAIMS THAT, IN THE ABOVE STATEMENT, CONGRESSMAN UDALL
"CLEARLY STATED THAT PERFORMANCE STANDARDS WERE TO REMAIN NEGOTIABLE AS
THEY WERE UNDER THE EXECUTIVE ORDER." /15/
APART FROM ANY OTHER CONSIDERATIONS, THIS STATEMENT OF CONGRESSMAN
UDALL IS NOT CONCERNED WITH PERFORMANCE STANDARDS. CONGRESSMAN UDALL
MADE THIS STATEMENT WITH RESPECT TO SECTION 7106(A)(2)(C) WHICH IS
CONCERNED WITH MANAGEMENT'S RIGHT TO FILL POSITIONS AND TO MAKE
SELECTIONS FOR APPOINTMENTS. ON ITS FACE, THE QUOTED LANGUAGE IS
SPECIFICALLY APPLICABLE TO ESTABLISHING PROMOTION CERTIFICATES. THERE
APPEARS TO BE NO DIRECT CONNECTION BETWEEN STANDARDS FOR ESTABLISHING
PROMOTION CERTIFICATES AND PERFORMANCE STANDARDS.
FURTHER, THE UNION CITED CERTAIN STATEMENTS IN THE CONGRESSIONAL
RECORD RELATING TO AN EXPANDED SCOPE OF BARGAINING AND THE MANAGEMENT
RIGHTS PROVISIONS OF THE STATUTE. /16/ THESE WERE GENERAL STATEMENTS
DISCUSSING THE INTERPRETATION AND APPLICATION OF THE MANAGEMENT RIGHTS
PROVISIONS OF THE STATUTE. THEY ESSENTIALLY STATE THAT MANAGEMENT
RIGHTS PROVISIONS BAR NEGOTIATION ON THOSE MATTERS WHICH DIRECTLY AND
INTEGRALLY AFFECT SUCH RIGHTS. APART FROM OTHER CONSIDERATIONS, THE
DECISION HERE IS NOT INCONSISTENT WITH THESE PRINCIPLES.
BASED ON THE FOREGOING, NEGOTIATION OF PERFORMANCE STANDARDS AND
CRITICAL ELEMENTS, AS CONTAINED IN THE DISPUTED PROPOSAL, WOULD
INTERFERE WITH THE AUTHORITY OF AN AGENCY TO ACT AS PROVIDED IN SECTION
7106(A). IT ALREADY HAS BEEN NOTED THAT THIS AUTHORITY IS SUBJECT TO
SECTION 7106(B). NEGOTIATION OF CRITICAL ELEMENTS AND PERFORMANCE
STANDARDS WOULD REQUIRE AN AGENCY TO BARGAIN THE QUANTITY, QUALITY, AND
TIMELINESS STANDARDS WHICH IT MUST ESTABLISH IN MAKING WORK ASSIGNMENTS
AND IN DIRECTING EMPLOYEES. WITH PARTICULAR REGARD TO SUBSECTION A OF
THE PROPOSAL AT ISSUE HEREIN, THE NEGOTIATION OF THE NUMBER OF BATCHES
AN EMPLOYEE IS REQUIRED TO PROCESS UNDER THE PROPOSAL WOULD RESTRICT THE
AGENCY'S DECISION IN ESTABLISHING PRIORITIES FOR THE PERFORMANCE OF
WORK. IN SO DOING, THE PROPOSAL WOULD PREVENT THE AGENCY FROM
EXERCISING ITS AUTHORITY TO DETERMINE THE MINIMUM REQUIRED LEVEL OF
OUTPUT. THEREFORE, SUBSECTION A IS OUTSIDE THE AGENCY'S STATUTORY DUTY
TO BARGAIN.
THIS DECISION DOES NOT MEAN THAT ALL MATTERS RELATED TO ESTABLISHING
PERFORMANCE APPRAISAL SYSTEMS ARE OUTSIDE THE DUTY TO BARGAIN.
CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION 7101 AND
OTHER SECTIONS OF THE STATUTE, PERFORMANCE APPRAISAL SYSTEMS, APART FROM
THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF
PERFORMANCE STANDARDS, ARE WITHIN THE DUTY TO BARGAIN, TO THE EXTENT
THEY ARE CONSISTENT WITH LAW AND REGULATION. TO THE EXTENT THAT AN
AGENCY HAS DISCRETION WITH RESPECT TO A GIVEN MATTER RELATED TO SUCH
SYSTEMS THE AGENCY MUST UPON REQUEST NEGOTIATE WITH AN EXCLUSIVE
REPRESENTATIVE OVER THAT MATTER. /17/ IN PARTICULAR, AS NOTED
PREVIOUSLY, SECTION 4302(A)(2) OF THE CRSA REQUIRES THAT PERFORMANCE
APPRAISAL SYSTEMS "ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING
PERFORMANCE STANDARDS" BUT DOES NOT SPECIFY THE FORM WHICH SUCH EMPLOYEE
PARTICIPATION MUST TAKE. CONSEQUENTLY, AMONG OTHER SIGNIFICANT ASPECTS
OF PERFORMANCE APPRAISAL SYSTEMS, THE MANNER IN WHICH A PARTICULAR
AGENCY PROVIDES FOR SUCH EMPLOYEE PARTICIPATION IS WITHIN THE AGENCY'S
DISCRETION AND, THEREFORE, WITHIN THE DUTY TO BARGAIN TO THE EXTENT THAT
IT WOULD NOT PREVENT THE AGENCY FROM ESTABLISHING PERFORMANCE STANDARDS
AND CRITICAL ELEMENTS PURSUANT TO ITS STATUTORY RIGHTS TO DIRECT
EMPLOYEES AND ASSIGN WORK. /18/
IN ADDITION TO THE RIGHT OF AN EXCLUSIVE REPRESENTATIVE TO NEGOTIATE
PROVISIONS RELATED TO THE FORM OF THE EMPLOYEE PARTICIPATION REQUIRED
UNDER SECTION 4302 OF THE CSRA, THE INTENT OF THE STATUTE AND THE
EXPRESS PROVISIONS OF SECTION 7114 REQUIRE THAT AN EXCLUSIVE
REPRESENTATIVE BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT CERTAIN
MEETINGS BETWEEN MANAGEMENT AND EMPLOYEES RELATING TO THE DEVELOPMENT
AND THE IMPLEMENTATION OF PERFORMANCE APPRAISAL SYSTEMS. CONGRESS
STATED IN SECTION 7101 THAT STATUTORY PROTECTION OF THE RIGHT OF
EMPLOYEES TO PARTICIPATE THROUGH LABOR ORGANIZATIONS OF THEIR OWN
CHOOSING IN DECISIONS WHICH AFFECT THEM SAFEGUARDS THE PUBLIC INTEREST,
CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, AND ENCOURAGES
THE AMICABLE SETTLEMENT OF DISPUTES. CONSISTENT WITH THIS LEGISLATIVE
INTENT TO PROTECT THE RIGHT OF EMPLOYEES TO PARTICIPATE THROUGH LABOR
ORGANIZATIONS, SECTION 7114 OF THE STATUTE PROVIDES, IN RELEVANT PART,
AS FOLLOWS:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
* * * *
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT; OR
(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF--
(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS REPRESENTATION.
AS IT PERTAINS TO THE MATTERS HERE IN DISPUTE, SECTION 7114 PROVIDES
THAT AN EXCLUSIVE REPRESENTATIVE IS ENTITLED TO BE REPRESENTED AT ANY
MEETING BETWEEN A REPRESENTATIVE OF THE AGENCY AND A UNIT EMPLOYEE WHICH
CONSTITUTES A FORMAL DISCUSSION WITHIN THE MEANING OF THE STATUTE AND
WHICH INVOLVES MATTERS PERTAINING TO PERFORMANCE APPRAISAL SYSTEMS,
I.E., THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF
PERFORMANCE STANDARDS. SIMILARLY, THE EXCLUSIVE REPRESENTATIVE IS
ENTITLED TO BE REPRESENTED AT AN EXAMINATION OF AN EMPLOYEE IN
CONNECTION WITH AN INVESTIGATION WHENEVER A UNIT EMPLOYEE REASONABLY
BELIEVES THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION FOR
UNACCEPTABLE PERFORMANCE UNDER SECTION 4303 OF THE CSRA ("ACTIONS BASED
ON UNACCEPTABLE PERFORMANCE") AND REQUESTS REPRESENTATION. /19/
IN ADDITION, SECTION 7106(B)(2) PROVIDES THAT MANAGEMENT HAS A DUTY
TO BARGAIN ON THE PROCEDURES WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN
EXERCISING SECTION 7106 RIGHTS. SIMILARLY, SECTION 7106(B)(3) PROVIDES
THAT MANAGEMENT HAS A DUTY TO BARGAIN ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS AUTHORITY.
/20/ THE LEGISLATIVE HISTORY RELEVANT TO THESE PROVISIONS MAKES CLEAR
THAT THEY ARE INTENDED TO AUTHORIZE AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE ON SUCH MATTERS EXCEPT TO THE EXTENT THAT THE ESTABLISHMENT OF
PROCEDURES OR APPROPRIATE ARRANGEMENTS THROUGH NEGOTIATIONS WOULD
PREVENT THE AGENCY FROM ACTING AT ALL. INSOFAR AS IT IS CONSISTENT WITH
MANAGEMENT'S AUTHORITY TO ACT, CONGRESS INTENDED THE PARTIES TO WORK OUT
THEIR DIFFERENCES IN CONNECTION WITH THESE MATTERS THROUGH NEGOTIATIONS.
/21/ THUS, TO THE EXTENT CONSISTENT WITH LAW AND REGULATION, THE
PROCEDURAL CONTEXT OF PERFORMANCE EVALUATION, INCLUDING PROCEDURES
RELATED TO THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT
OF PERFORMANCE STANDARDS, AND APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
ADVERSELY AFFECTED BY ACTIONS TAKEN UNDER THOSE STANDARDS, ARE SUBJECT
TO BARGAINING. THIS IS CONSISTENT WITH THE MANDATE OF CONGRESS AS
EXPRESSED IN SECTION 4302 THAT PERFORMANCE APPRAISAL SYSTEMS MUST
ENCOURAGE EMPLOYEE PARTICIPATION IN THE ESTABLISHMENT OF PERFORMANCE
STANDARDS.
WITH FURTHER REFERENCE TO PROCEDURES, OPM SUGGESTED AN EXCLUSIVE
REPRESENTATIVE COULD NEGOTIATE WITH REGARD TO THE PROCESS BY WHICH
CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ARE COMMUNICATED TO
EMPLOYEES, PERIODIC APPRAISALS AT LEAST ON AN ANNUAL BASIS, THE MANNER
IN WHICH THE PERFORMANCE OF EMPLOYEES ON DETAIL WILL BE APPRAISED, THE
MANNER IN WHICH AN EMPLOYEE'S DISAGREEMENT WITH HIS OR HER PERFORMANCE
APPRAISAL WILL BE REVIEWED, AND THE PROCESS BY WHICH PROPOSED
PERFORMANCE STANDARDS WILL BE REVIEWED WITHIN THE AGENCY. /22/ CREATIVE
APPROACHES TO COLLECTIVE BARGAINING MAY EXPAND THE POSSIBILITIES
SUGGESTED. THE STATED EXAMPLES REFLECT THE WIDE RANGE OF EMPLOYEE
PARTICIPATION POSSIBLE THROUGH NEGOTIATION WITHIN UNITS OF EXCLUSIVE
RECOGNITION AND THE VARIETY OF PROTECTIONS FOR EMPLOYEES WHICH MAY BE
NEGOTIATED AS A PART OF SUCH SYSTEMS.
FINALLY, AN EMPLOYEE AGAINST WHOM DISCIPLINARY ACTION HAS BEEN TAKEN
BASED ON UNACCEPTABLE PERFORMANCE UNDER SECTION 4303 OF THE CSRA, MAY
APPEAL THE ACTION TO THE MERIT SYSTEMS PROTECTION BOARD PURSUANT TO
SECTION 7701 OF THE CSRA OR, ALTERNATIVELY, RAISE THE MATTER IN THE
NEGOTIATED GRIEVANCE PROCEDURE PURSUANT TO SECTION 7121. /23/ IN THE
CONTEXT OF NEGOTIATED GRIEVANCE PROCEDURES IT WOULD BE POSSIBLE FOR AN
EMPLOYEE AGAINST WHOM ACTION HAS BEEN TAKEN FOR UNACCEPTABLE
PERFORMANCE
TO GRIEVE SUCH ACTION, CONTENDING THAT THE PERFORMANCE STANDARD AS
APPLIED TO THE GRIEVANT PURSUANT TO WHICH THE DISCIPLINE WAS IMPOSED IS
IMPROPER, OR IMPOSSIBLE OF PERFORMANCE, UNDER REQUIREMENTS OF LAW OR THE
PARTIES' AGREEMENT. WITH REGARD TO THE REQUIREMENTS OF LAW, SECTION
4302(B)(1) OF THE CSRA REQUIRES THAT PERFORMANCE STANDARDS BE OBJECTIVE
AND JOB-RELATED. AS WAS ACKNOWLEDGED BY OPM AT THE ORAL ARGUMENT, IN
THE CASE OF AN EMPLOYEE SUBJECT TO DISCIPLINE FOR UNACCEPTABLE
PERFORMANCE, AN ARBITRATOR WOULD BE ABLE TO FIND A STANDARD AS APPLIED
WAS NOT OBJECTIVE OR JOB-RELATED IN RULING ON A GRIEVANCE. /24/
WITH REGARD TO THE PARTIES' AGREEMENT, NOTHING IN THIS DECISION WOULD
PRECLUDE AN EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING CRITERIA FOR THE
APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT HAS ESTABLISHED.
AS THE AUTHORITY DETERMINED WITH RESPECT TO A PROPOSAL REQUIRING THAT
PERFORMANCE STANDARDS BE "FAIR AND EQUITABLE" IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120 (1980), DECIDED THIS DATE,
SUCH A CRITERION WOULD NOT INTERFERE WITH THE AGENCY'S DISCRETION AS TO
THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF THE
CONTENT OF A PARTICULAR PERFORMANCE STANDARD. THIS CRITERION WOULD
MERELY ESTABLISH A GENERAL REQUIREMENT BY WHICH THE APPLICATION OF
CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT
COULD SUBSEQUENTLY BE EVALUATED WHEN THEY ARE CHALLENGED IN A GRIEVANCE
FILED PURSUANT TO SECTION 7121(E) OF THE STATUTE. THIS TYPE OF REVIEW
WOULD NOT PRECLUDE THE AGENCY FROM INITIALLY DETERMINING THE CONTENT OF
THE STANDARD, NOR WOULD IT RESULT IN SUBSTITUTION OF AN ARBITRATOR'S
JUDGMENT FOR THAT OF THE AGENCY AND SETTING A NEW STANDARD. IT WOULD
SIMPLY DETERMINE IF THE STANDARD ESTABLISHED BY MANAGEMENT AS APPLIED TO
THE GRIEVANT COMPLIED WITH THE REQUIREMENTS OF THE PARTIES' AGREEMENT.
IN CONCLUSION, BASED UPON THE FOREGOING, SUBSECTION A OF THE UNION'S
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT IS WITHIN THE
FRAMEWORK OF THE RIGHT OF MANAGEMENT TO DIRECT EMPLOYEES AND TO ASSIGN
WORK UNDER SECTION 7106(A), AND IS NOT A PROCEDURE OR AN APPROPRIATE
ARRANGEMENT WITHIN THE MEANING OF SECTION 7106(B)(2) AND (3) OF THE
STATUTE.
TURNING TO SUBSECTION B OF THE UNION'S PROPOSAL, IT WOULD ESTABLISH A
MINIMUM PERFORMANCE LEVEL OF 9.0 BATCHES PER HOUR FOR THE EMPLOYEE TO BE
ELIGIBLE TO RECEIVE WITHIN-GRADE INCREASES. THE AGENCY CONTENDS THE
UNION'S PROPOSAL WOULD VIOLATE 5 CFR 531.407(C)(1), SET FORTH BELOW (SEE
PAGE 14, INFRA). IT ASSERTS THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
UNDER SECTION 7117 WHICH PROVIDES, AS STATED PREVIOUSLY, THAT THE SCOPE
OF THE DUTY TO BARGAIN DOES NOT EXTEND TO MATTERS WHICH ARE INCONSISTENT
WITH ANY GOVERNMENT-WIDE RULE OR REGULATION.
THE INITIAL QUESTION IS WHETHER THE APPLICABLE REGULATION OF THE
OFFICE OF PERSONNEL MANAGEMENT CONSTITUTES A "GOVERNMENT-WIDE RULE OR
REGULATION" WITHIN THE MEANING OF THE STATUTE. THE AUTHORITY CONSIDERED
THE MEANING OF THE PHRASE "GOVERNMENT-WIDE RULE OR REGULATION" IN
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE
SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118 (1980) AND DETERMINED THAT
THE PROVISIONS OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS IN THAT
CASE WERE GENERALLY APPLICABLE THROUGHOUT THE FEDERAL GOVERNMENT AND,
AS
SUCH, CONSTITUTED GOVERNMENT-WIDE REGULATIONS WITHIN THE MEANING OF
SECTION 7117.
THE REGULATION AT ISSUE HEREIN IS CODIFIED AT TITLE 5 OF THE CODE OF
FEDERAL REGULATIONS AS A PERSONNEL MANAGEMENT REGULATION PUBLISHED BY
THE OFFICE OF PERSONNEL MANAGEMENT. THIS REGULATION IS BINDING ON MOST
GENERAL SCHEDULE EMPLOYEES OF THE EXECUTIVE BRANCH AND CERTAIN EMPLOYEES
OF THE LEGISLATIVE BRANCH. (5 CFR 531.402, 5 U.S.C. 5102.) IN THIS
MANNER, THE REGULATION IS GENERALLY APPLICABLE TO THE FEDERAL CIVILIAN
WORK FORCE AS A WHOLE, THOUGH NOT, OF COURSE, TO EVERY FEDERAL EMPLOYEE.
IT IS TYPICAL OF THE REGULATIONS ISSUED BY OPM AND WOULD APPEAR TO BE
THE KIND OF REGULATION CONTEMPLATED AS A GOVERNMENT-WIDE REGULATION BY
THE REFERENCE TO OPM IN THE HOUSE COMMITTEE REPORT, AS CITED IN THE NEW
ORLEANS DISTRICT DECISION, SUPRA. THEREFORE, THE REGULATION ASSERTED BY
THE AGENCY AS A BAR TO NEGOTIATION OF SUBSECTION B OF THE UNION'S
PROPOSAL IS A GOVERNMENT-WIDE REGULATION WITHIN THE MEANING OF SECTION
7117(A).
THE QUESTION THEN BECOMES WHETHER SUBSECTION B OF THE PROPOSAL IS
INCONSISTENT WITH THE CITED REGULATION. THAT REGULATION PROVIDES AS
FOLLOWS:
SEC. 531.407 WORK OF AN ACCEPTABLE LEVEL OF COMPETENCE.
* * * *
(C) DETERMINATION. (1) IN MAKING HIS DETERMINATIONS, THE HEAD OF AN
AGENCY OR HIS DESIGNEE
SHALL MAKE EFFECTIVE USE OF THIS AUTHORITY TO STIMULATE OPTIMUM
PERFORMANCE AMONG HIS
EMPLOYEES AND:
(I) SHALL NOT AWARD WITHIN-GRADE INCREASES TO EMPLOYEES WHO DO NOT
CLEARLY MEET THE
STATUTORY STANDARD FOR SUCH AWARD, RECOGNIZING THAT FOR THESE
INCREASES PERFORMANCE MUST BE OF
SUFFICIENT LEVEL TO MERIT A PAY INCREASE, NOT JUST ADEQUATE FOR
RETENTION ON THE JOB . . .
THE UNION'S PROPOSAL PROVIDES THAT THE STANDARD FOR ELIGIBILITY TO
RECEIVE WITHIN-GRADE STEP INCREASES FOR ACCOUNTS MAINTENANCE CLERKS
SHALL BE THE SAME AS THE STANDARD OF PERFORMANCE FOR JOB RETENTION. IN
CONTRAST, THE LANGUAGE OF THE ABOVE-QUOTED REGULATION REQUIRES THAT A
PERFORMANCE LEVEL SUFFICIENT TO RECEIVE A WITHIN-GRADE INCREASE MUST
EXCEED THE LEVEL WHICH IS MERELY ADEQUATE FOR JOB RETENTION. WITHOUT
PASSING UPON WHETHER PROPOSALS RELATED TO ACCEPTABLE LEVELS OF
COMPETENCE FOR THE RECEIPT OF WITHIN-GRADE INCREASES UNDER 5 U.S.C.
5335 ARE OTHERWISE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117,
SUBSECTION B OF THE UNION'S PROPOSAL, INSOFAR AS IT PROVIDES FOR A
PERFORMANCE LEVEL FOR THE GRANTING OF WITHIN-GRADE INCREASES WHICH DOES
NOT EXCEED THE STANDARD ADEQUATE FOR JOB RETENTION IN THE CIRCUMSTANCES
OF THIS CASE, IS INCONSISTENT WITH GOVERNMENT-WIDE REGULATION.
IN CONCLUSION, FOR THE REASONS SET FORTH ABOVE, THE UNION'S PROPOSAL
IS FOUND TO BE INCONSISTENT WITH FEDERAL LAW AND GOVERNMENT-WIDE
REGULATION AND, THUS, IS OUTSIDE THE SCOPE OF BARGAINING ESTABLISHED IN
SECTION 7117(A)(1) OF THE STATUTE. ACCORDINGLY, THE AGENCY'S ALLEGATION
IS SUSTAINED.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:
MR. FRANK D. FERRIS
DIRECTOR OF TRAINING AND NEGOTIATIONS
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW., SUITE 1101
WASHINGTON, D.C. 20006
MR. WILLIAM R. KANSIER
SUPERVISORY LABOR RELATIONS SPECIALIST
PERSONNEL BRANCH
BUREAU OF THE PUBLIC DEBT
200 THIRD STREET
PARKERSBURG, WEST VIRGINIA 26101
MR. HENRY DESEGUIRANT
DIRECTOR OF PERSONNEL
15TH STREET AND PENNSYLVANIA AVENUE, NW.
WASHINGTON, D.C. 20220
MR. ANTHONY F. INGRASSIA
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, NW., ROOM 7508
WASHINGTON, D.C. 20415
/1/ 5 U.S.C. 7106 PROVIDES, AS RELEVANT HEREIN, AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
* * * *
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED;
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
* * * *
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/2/ 5 U.S.C. 4302 PROVIDES AS FOLLOWS:
SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
(A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
SYSTEMS WHICH--
(1) PROVIDE FOR PERIODIC APPRAISALS OF JOB PERFORMANCE OF EMPLOYEES;
(2) ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING PERFORMANCE
STANDARDS; AND
(3) USE THE RESULTS OF PERFORMANCE APPRAISALS AS A BASIS FOR
TRAINING, REWARDING,
REASSIGNING, PROMOTING, REDUCING IN GRADE, RETAINING, AND REMOVING
EMPLOYEES;
(B) UNDER REGULATIONS WHICH THE OFFICE OF PERSONNEL MANAGEMENT SHALL
PRESCRIBE, EACH
PERFORMANCE APPRAISAL SYSTEM SHALL PROVIDE FOR--
(1) ESTABLISHING PERFORMANCE STANDARDS WHICH WILL, TO THE MAXIMUM
EXTENT FEASIBLE, PERMIT
THE ACCURATE EVALUATION OF JOB PERFORMANCE ON THE BASIS OF OBJECTIVE
CRITERIA (WHICH MAY
INCLUDE THE EXTENT OF COURTESY DEMONSTRATED TO THE PUBLIC) RELATED TO
THE JOB IN QUESTION FOR
EACH EMPLOYEE OR POSITION UNDER THE SYSTEM;
(2) AS SOON AS PRACTICABLE, BUT NOT LATER THAN OCTOBER 1, 1981, WITH
RESPECT TO INITIAL
APPRAISAL PERIODS, AND THEREAFTER AT THE BEGINNING OF EACH FOLLOWING
APPRAISAL PERIOD,
COMMUNICATING TO EACH EMPLOYEE THE PERFORMANCE STANDARDS AND THE
CRITICAL ELEMENTS OF THE
EMPLOYEE'S POSITION;
(3) EVALUATING EACH EMPLOYEE DURING THE APPRAISAL PERIOD ON SUCH
STANDARDS;
(4) RECOGNIZING AND REWARDING EMPLOYEES WHOSE PERFORMANCE SO
WARRANTS;
(5) ASSISTING EMPLOYEES IN IMPROVING UNACCEPTABLE PERFORMANCE; AND
(6) REASSIGNING, REDUCING IN GRADE, OR REMOVING EMPLOYEES WHO
CONTINUE TO HAVE UNACCEPTABLE
PERFORMANCE BUT ONLY AFTER THE OPPORTUNITY TO DEMONSTRATE ACCEPTABLE
PERFORMANCE.
/3/ TRANSCRIPT OF ORAL ARGUMENT BEFORE THE AUTHORITY ON NEGOTIABILITY
OF PROPOSALS RELATING TO PERFORMANCE APPRAISAL SYSTEMS, AT 152.
/4/ 5 CFR 430.202(D) AND (E)(1980).
/5/ THESE REGULATIONS LITERALLY PROVIDE FOR THE ESTABLISHMENT OF
PERFORMANCE STANDARDS BY MANAGEMENT. HOWEVER, ASSUMING THAT THESE
REGULATIONS ARE GOVERNMENT-WIDE REGULATIONS WITHIN THE MEANING OF
SECTION 7117 OF THE STATUTE AND, AS SUCH, COULD CONSTITUTE A BAR TO
NEGOTIATIONS, THE FACT THAT THE REGULATIONS ARE EXPRESSED IN TERMS OF
MANAGEMENT ACTION TO ESTABLISH PERFORMANCE STANDARDS WOULD NOT IN AND OF
ITSELF RENDER PROPOSALS TO BARGAIN THOSE STANDARDS OUTSIDE THE DUTY TO
BARGAIN. CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118 (1980) AT 118 OF
DECISION.
/6/ SEE WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED
(1976)).
/7/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
NO. 77 (1980), AT 18 AND 28 OF DECISION.
/8/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA NO. 16 (1979) AT 7-9 OF DECISION.
/9/ NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 19 AND NATIONAL LABOR
RELATIONS BOARD, REGION 19, 2 FLRA NO. 98 (1980).
/10/ ID.
/11/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND
PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66 (1980) AT 1-4 OF DECISION.
/12/ SEE, MESSAGE OF PRESIDENT CARTER TO THE CONGRESS, 14 WEEKLY
COMP.OF PRES.DOC. 444 (MARCH 2, 1978); S. REP. NO. 95-969, 95TH CONG.,
2ND SESS. 2-4, 39-40 (1978). SEE ALSO H.R. REP. NO. 95-1403, 95TH
CONG., 2ND SESS. 3-4, 20-21 (1978).
/13/ PATENT OFFICE PROFESSIONAL ASSOCIATION AND U.S. PATENT OFFICE,
WASHINGTON, D.C., 3 FLRC 635(1975).
/14/ 124 CONG.REC. H9634 (DAILY ED. SEPT. 13, 1978).
/15/ UNION RESPONSE AT 8.
/16/ UNION RESPONSE AT 7-11, CITING FROM 124 CONG.REC. H9634, H9638,
AND H9648-9 (DAILY ED. SEPT. 13, 1978).
/17/ THE OPM, WHICH IS AN AMICUS CURIAE HEREIN, SO CONCEDED IN THE
ORAL ARGUMENT BEFORE THE AUTHORITY. TRANSCRIPT OF ORAL ARGUMENT BEFORE
THE AUTHORITY, AT 22. SEE ALSO HEARINGS BEFORE THE COMMITTEE ON POST
OFFICE AND CIVIL SERVICE OF THE HOUSE OF REPRESENTATIVES ON H.R. 11280,
95TH CONG., 2ND SESS. 727 (1978).
/18/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120
(1980) AT 4-6 OF DECISION.
/19/ SEE THE STATEMENT OF OPM AT THE ORAL ARGUMENT BEFORE THE
AUTHORITY. TRANSCRIPT OF ORAL ARGUMENT BEFORE THE AUTHORITY, AT 250-53.
/20/ SEE NOTE 1, SUPRA.
/21/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA NO. 16 (1979) AT 2-4 OF DECISION; AND NATIONAL TREASURY
EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO,
CALIFORNIA, 2 FLRA NO. 30 (1979) AT 5-6 OF DECISION.
/22/ TRANSCRIPT OF ORAL ARGUMENT BEFORE THE AUTHORITY, AT 244-45.
/23/ 5 U.S.C. 7701(C)(1)(A); 5 U.S.C. 7121(E)(2). IN EITHER
SITUATION THE DECISION RENDERED WOULD BE SUBJECT TO JUDICIAL REVIEW. 5
U.S.C. 7703(A)(1); 5 U.S.C. 7121(F).
/24/ TRANSCRIPT OF ORAL ARGUMENT BEFORE THE AUTHORITY, AT 248-49.