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26 FLRA NO. 12

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1858

                            union

       and

U.S. ARMY ORDNANCE MISSILE
AND MUNITIONS CENTER AND SCHOOL
(USAOMMCS), REDSTONE ARSENAL,
ALABAMA

                            Agency

Case No. 0-NG-1091

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of three disputed provisions of a local agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute which concern performance appraisals. For the reasons set out in this decision we find Provisions 1, 2 and 3 to be nonnegotiable. The appeal relative to five additional provisions was withdrawn by the Union and will not be considered further.

II. Provision 1

Clause I (Article 45, section 3c, General Performance Appraisal System)

Positions which are assigned essentially the same duties and responsibilities under a common job description will have essentially the same major job elements. 

A. Positions of the Parties

The Agency asserts that the provision conflicts with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. It cites for support American Federation of Government Employees, AFL - CIO, Local 2302 and U.S. Army Armor Center, Fort Knox, Kentucky, 15 FLRA 17 (1984), where the Authority found nonnegotiable the following proposal:

Positions which are essentially the same shall have the same critical elements.

The Union argues that in order for the provision to take effect, the positions must be described by the employer as the same. As such, it merely represents a procedural act to treat the incumbents of the positions similarly. In the event of a reasonable basis, the employer could attribute "any reasonable element to the anomalous position." Union Response at 2. Also, unlike the clause in Fort Knox, this clause preserves management's right to identify different elements where it determines they exist in essentially similar positions. Union response at 3.

B. Analysis and Conclusion

The Union's attempt to distinguish this provision from the one held nonnegotiable in U.S. Army Armor Center, Fort Knox, Kentucky, is not persuasive. Its claim that this provision preserves management's right to identify different major job elements "if there are legitimate differences in the actual duties" misses the point. Even though different positions require performance of the same group of duties, the relative significance of particular duties can vary from one position to another. The present provision would preclude management's determination that critical elements of similar positions under a common job description should not be the same because, in management's judgment, the different circumstances relating to work performance in those positions warrants weighing job elements differently and, thus, establishing different critical elements.

Therefore, we find that this provision is to the same effect as the proposal found nonnegotiable in U.S. Army Armor Center, Fort Knox, Kentucky. For the reasons set forth in that decision, Provision 1 is not within the duty to bargain. 

III. Provision 2

Clause 2 (Article 45, section 4d, General Performance Appraisal System)

The overall official rating shall be one of the five ratings defined below. The overall rating shall be arrived at by considering:

(1) Exceptional - (Outstanding) Performance that exceeds performance standards (other than absolute standards) for all major job elements.

(2) Highly Successful - Performance that exceeds performance standards (other than absolute standards) for all critical elements and meets the standards for all other major elements.

(3) Fully Successful - (Satisfactory) Performance that at least meets the performance standards for all major elements.

(4) Marginal - Performance that meets performance standards for all critical elements and fails to meet the standards for one or more other major elements.

(5) Unsatisfactory - (Unacceptable) Performance that fails to meet performance standards of one or more critical elements.

A. Positions of the Parties

The Agency asserts that the provision conflicts with management's right to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute, citing the Authority's decision in National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers, 14 FLRA 283 (1984).

The Union intends the clause as a "hortatory statement to inform employees of what the rating process means."  Further, according to the Union, "the clause reiterates the existing Agency position. It cannot be said that placing it in the contract changes its meaning because the parent regulation which states the same criteria is also subject to the negotiated grievance procedure." (Emphasis in original.) Union Response at 4.

B. Analysis and Conclusion

Although the Union intends the provision to be a "clarification" of existing standards, and the Agency characterizes the clause as "quite similar to the current Army regulation," Agency Statement of Position at 5, the provision is not negotiable. The Authority held that determination of the number of performance levels and the establishment of criteria for performance evaluation are essential elements of management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B). Department of the Army, Kansas City District, Corps of Engineers, 14 FLRA 283, 287. Even it this provision merely reiterates existing policy, as claimed by the Union, it would interfere with management's rights under section 7106(a)(2)(A) and (B) to direct employees and assign work because inclusion in a negotiated agreement would interfere with the right to make changes in the number of levels and establishment of criteria during the life of the negotiated agreement. See American Federation of Government Employees, AFL - CIO, Local 1603 and Navy Exchange, Naval Air Station, Patuxent River, Maryland, 9 FLRA 1039 (1982).

IV. Provision 3

Clause 3 (Article 45, section 6b, General Performance Appraisal System)

When officially due, a within-grade increase will be granted upon receipt of a rating fully successful (satisfactory). A rating of marginal may be cause for denial of a within- grade increase. A rating of unsatisfactory will be cause for a denial of a within-grade increase. When denial of a within-grade increase is being considered, an employee will be given written notice 60 days prior to the effective date of a within-grade increase. (The underlined portion of the provision is in dispute).

A. Positions of the Parties

The Agency notes that the dispute turns upon use of the phrase "may be a cause for denial," because according to FPM supplement 532-1.SB-5a, a wage grade (WG) employee cannot receive a within-grade increase with the equivalent of a marginal rating. There are WG as well as General employees in the bargaining unit.

The Union argues that since the term "may" does not require an action, the Agency would not have to give a within-grade increase to a WG employee with a marginal rating and therefore the disputed provision would not require the Agency to act contrary to the FPM.

B. Analysis and Conclusions

The disputed provision is nonnegotiable to the extent it refers to either WG or GS employees.

As to WG employees, FPM Supplement 532-1.S8-5a states:

Any employee covered by this section (including a temporary employee) will be automatically advanced to the next higher rate of his grade at the beginning of the first applicable pay period following completion of the required waiting period, provided his/her performance in his/her position is satisfactory. . . . An employee's performance is satisfactory or when he/she achieves or maintains a performance rating of satisfactory or better.

This portion of the FPM precludes a within-grade increase for a WG employee who receives a less than satisfactory, or "marginal" rating. Moreover, the FPM provision applies to all WG employees throughout the Federal government and, therefore, constitutes a Government-wide rule or regulation within the meaning of the Statute. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). Language in the disputed provision suggesting that a WG employee with a marginal rating could receive a within-grade increase is contrary to this FPM provision.

As to GS employees, contrary to the Agency's claim that: "A GS employee who is rated as 'marginal' (i.e., less  than 'fully successful') may still receive a within-grade increase . . .," we find that a provision specifically stating that a rating of marginal may be cause for denying a within-grade increase to GS employees would conflict with a recently issued Government-wide regulation. Specifically, 51 Fed. Reg. 8,420 (1986) (to be codified at 5 C.F.R. 531.404(a)) provides that a GS employee's performance must be at an acceptable level of competence, defined as level 3 ("Fully Successful"), before a within-grade increase can be granted. Since this regulation, by its terms, applies to employees classified and paid under the General Schedule, it is generally applicable to the Federal civilian work force so as to be "Government-wide" within the meaning of section 7117(a)(1) of the Statute. See American Federation of Government Employees, AFL - CIO, Local 15 and Internal Revenue Service, North Atlantic Region, New York, 15 FLRA 954 (1984). Therefore, this provision, to the extent it suggests that a GS employee with a rating of marginal may receive a within-grade increase, is also outside the duty to bargain under section 7117 the Statute.

V. Order

The petition for review as it relates to Provisions 1, 2 and 3 is dismissed.

Issued, Washington, D.C., March 10, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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