[ v13 p433 ]
13:0433(77)NG
The decision of the Authority follows:
13 FLRA No. 77
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 25
Union
and
DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
Agency
Case No. O-NG-499
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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), and raises issues
relating to the negotiability of the following Union proposal. /1/
I. Performance elements and performance standards
A. Performance elements and performance standards are required
for all General Schedule employees in grades GS-1 through GS-12,
and all Federal Wage System employees. They must be objective,
realistic, and consistent with the duties and responsibilities of
the applicable position as described in the position or job
description. Work based on words to the effect "other duties as
assigned" shall not be used for performance appraisals.
Individuals with the same position or job description under the
same supervisor shall have the same critical elements. Each job
must have at least one critical performance element, though
possibly three to five will be appropriate depending on the
position. Positions for which objective, realistic elements and
standards cannot be developed will be exempted from this Program
on a case basis. Each job will also have a number of elements
which are not critical, but which will be informative to the
supervisor and the employee in assessing overall work performance.
Critical elements and performance standards shall recognize the
fact that professional work by definition (5 USC 7103) "is of such
character that the output produced or the result accomplished by
such work cannot be standardized in relation to a given period of
time," i.e., they shall not specify quantity.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
/2/
The first disputed sentence provides:
Performance elements and performance standards are required for
all General Schedule employees in grades GS-1 through GS-12, and
all Federal Wage System employees.
This sentence is within the Agency's obligation to bargain. /3/ That
is, contrary to the Agency's contention, this sentence would not prevent
the Agency from establishing "one or more performance appraisal systems"
as required by 5 U.S.C. 4302(a). Rather, the sentence would merely
require that "performance elements" and performance standards be used in
evaluating employees. Such a requirement is consistent with law,
specifically 5 U.S.C. 4302, which directs agencies to develop one or
more performance appraisal systems employing performance standards, and
with regulations issued by the Office of Personnel Management (OPM)
pursuant to 5 U.S.C. 4305 which require that each appraisal system
include performance standards and critical elements. /4/
The second disputed sentence requires:
Work based on words to the effect "other duties as assigned"
shall not be used for performance appraisals.
The second disputed sentence of the proposal is also within the Agency's
obligation to bargain. This sentence, in essence, requires that
performance evaluations be based on duties specifically set forth in
position descriptions. In this respect, the disputed sentence is to the
same effect as the portion of the proposal requiring that critical
elements and performance standards "be consistent with the duties and
responsibilities contained in properly classified position descriptions"
which the Authority held to be within the duty to bargain in American
Federation of Government Employees, AFL-CIO, Local 2849 and Office of
Personnel Management, New York Regional Office, 7 FLRA No. 88 (1982).
Hence, based on Office of Personnel Management and for the reasons
stated therein, the second disputed sentence is within the duty to
bargain.
The third disputed sentence of the proposal provides:
Individuals with the same position or job description under the
same supervisor shall have the same critical elements.
This sentence, requiring that employees having the same position
description and assigned to the same supervisor be evaluated using the
same critical elements, is to the same effect as the portion of the
proposal requiring that employees with the same position descriptions
have the same performance standard which was held to violate the
Agency's rights under section 7106(a)(2)(A) and (B) of the Statute "to
direct employees" and "to assign work" in National Federation of Federal
Employees, Local 1497 and Headquarters, Lowry Technical Training Center
(ATC), Lowry Air Force Base, Colorado, 6 FLRA No. 5 (1981). Based on
Lowry Air Force Base and the reasons and cases cited therein, the
Authority concludes that the third disputed sentence herein violates the
Agency's section 7106(a)(2)(A) and (B) rights "to direct employees" and
"to assign work" and is outside the duty to bargain.
The fourth disputed sentence states:
Each job must have at least one critical performance element,
though possibly three to five will be appropriate depending on the
position.
The Agency alleges that the portion of this sentence concerning the
appropriate number of critical elements for each position is
nonnegotiable. In this regard, the Agency asserts, without
contravention on the record, that the sentence, in effect, would require
it to bargain on the substance of critical elements by limiting the
number which could be established for any position covered by the
appraisal system. The Authority has held that the designation by
management of critical elements constitutes the exercise of the rights
under section 7106(a)(2) of the Statute "to direct employees" and "to
assign work." National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769, affirmed sub nom.
National Treasury Employees Union v. Federal Labor Relations Authority,
691 F.2d 553 (D.C. Cir. 1982). Hence, the disputed portion of the
fourth sentence is outside the Agency's obligation to bargain.
The fifth disputed sentence provides:
Positions for which objective, realistic elements and standards
cannot be developed will be exempted from this Program on a case
basis.
This sentence, exempting certain positions from the appraisal system, is
inconsistent with 5 U.S.C. 4301(2) which lists the exclusions from the
definition of "employee" for purposes of chapter 43, governing
performance appraisals. The record in this case does not indicate that
any of the employees represented by the Union are within any of those
categories, nor does applicable law or regulation provide exemptions
from coverage on the grounds stated in this disputed sentence of the
proposal. Therefore, as this sentence is inconsistent with law, it is
not within the duty to bargain under section 7117(a)(1) of the Statute.
The sixth disputed sentence requires:
Each job will also have a number of elements which are not
critical, but which will be informative to the supervisor and the
employee in assessing overall work performance. (The underlined
portion of this sentence is in dispute.)
The disputed portion of this sentence interferes with management's
rights under section 7106(a)(2) of the Statute to direct employees and
assign work. As previously noted, the matter of identifying critical
elements for the purpose of appraising performance falls within
management's right to direct employees and assign work. National
Treasury Employees Union and Department of the Treasury, Bureau of the
Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury
Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C.
Cir. 1982). Similarly, the identification of job elements, if any,
which are not critical is also an exercise of those rights. National
Treasury Employees Union and U.S. Nuclear Regulatory Commission, 13 FLRA
No. 49 (1983). Thus, the sixth disputed sentence, by requiring the
Agency to designate a number of elements in each job as non-critical,
i.e., not subject to remedial action, is outside the duty to bargain.
The final disputed sentence of the proposal provides:
Critical elements and performance standards shall recognize the
fact that professional work by definition (5 USC 7103) "is of such
character that the output produced or the result accomplished by
such work cannot be standardized in relation to a given period of
time," i.e., they shall not specify quantity.
This disputed sentence is outside the duty to bargain. In barring the
use of quantified critical elements in evaluating professional
employees, the sentence is to the same effect as Union Proposal 1,
similarly seeking to limit the critical standards to be applied in
performance evaluation, in American Federation of Government Employees,
AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence
Seaway Development Corporation, Massena, New York, 5 FLRA No. 70 (1981),
enforced sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir.
1982), cert. denied, 103 S.Ct. 2085 (1983). In the cited case, the
Authority found the proposal to be outside the duty to bargain because
it violated management's rights under section 7106(a)(2)(A) and (B) of
the Statute to direct employees and assign work by preventing the
identification and establishment of certain critical elements. See also
National Federation of Federal Employees, Local 1497 and Headquarters,
Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 6
FLRA No. 5 (1981). The Union's reliance upon the portion of the
definition of "professional employee" sets out in section
7103(a)(15)(A)(iv) of the Statute, as support for the negotiability of
this sentence of the proposal is misplaced. The cited definition
provides, with regard to a professional employee, that " . . . the
output produced or result accomplished by such work cannot be
standardized in relation to a given period of time . . . ." The
definitions in chapter 71, however, are prefaced by the limitation in
section 7103(a) that the definitions that follow are for the purpose of
chapter 71, "Labor-Management and Employee Relations." Moreover, in its
report accompanying the final House version of the Statute, the
Committee on Post Office and Civil Service noted, with respect to
section 7103(a)(15), which section was identical to that ultimately
enacted and signed into law, that:
Subsection (a)(15) of section 7103 sets forth the criteria for
determining whether an employee is a "professional employee." The
term is relevant primarily to the determination of appropriate
bargaining units under section 7112. /5/ (Footnote added.)
Thus the cited section of chapter 71 expressly has no application
outside that chapter and could not have been intended to preclude the
establishment of quantity based performance standards and critical
elements for professional employees under 5 U.S.C.chapter 43 which
governs performance appraisal systems. It is therefore concluded that
the final disputed sentence of the proposal is outside the Agency's
obligation to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the first and
second disputed sentences of the Union proposal. /6/ IT IS FURTHER
ORDERED that the Union's petition for review as it relates to all other
disputed sentences of the proposal be, and it hereby is, dismissed.
Issued, Washington, D.C., November 29, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its statement of position, the Agency addressed each disputed
sentence of the proposal identified by underscoring separately.
Accordingly, the Authority will treat the proposal in like manner. Each
part of the proposal to be considered will be reiterated, for ease of
understanding, prior to its analysis.
/2/ Because the Union's Response to the Agency's Statement of
Position was untimely filed, it has not been considered.
/3/ In National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769, 770 (1980), affirmed
sub nom. National Treasury Employees Union v. Federal Labor Relations
Authority, 659 F.2d 553 (D.C. Cir. 1982), the Authority noted: " . . .
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."
/4/ 5 CFR 430.203(b) (1983).
/5/ H.R. REP. No. 95-1403, 95th Cong., 2d Sess. 41 (1978).
/6/ In finding these two disputed sentences of the proposal to be
within the duty to bargain, the Authority makes no judgment as to their
merits.