AFGE Local 1603 and Naval Hospital Patuxent River (Authority decision, July 15, 1986)

Final FLRA decision. The Authority dismisses the negotiability petition. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 1603 negotiated a clause allowing employees to challenge whether performance standards were fair and reasonable when applied to them. The Authority found that the clause also invited arbitrators to decide whether the standards themselves were fair and reasonable. That would substitute an arbitrator's judgment for management's authority to set work standards and direct employees. It held the provision outside the duty to bargain and dismissed the petition. On reconsideration, the Authority considered the union’s response to the agency and again dismissed the petition; it did not vacate this result.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(A), 5 U.S.C. § 7106(a)(2)(B), 5 U.S.C. § 7114(c).
• Outcome: Performance standard provision found nonnegotiable; petition dismissed.
• Key point: The proposal would permit arbitral review of the content of management’s performance standards.

Full text (FLRA public release)

[ v22 p567 ]

22:0567(60)NG

The decision of the Authority follows:

22 FLRA No. 60

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1603
Union

and

U.S. NAVAL HOSPITAL,
PATUXENT RIVER, MARYLAND
Agency

Case No. 0-NG-1217

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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 the following provision of an agreement disapproved by the Agency head under section 7114(c) of the Statute.

Article IX, Section 5

An employee who believes that he/she has been adversely affected by application of a performance standard may raise the issue of whether the performance standard, as applied to the employee, is fair and reasonable in any grievance proceeding or arbitration on the matter. In interpreting whether a performance standard is fair and reasonable, an arbitrator shall bear in mind that 5 USC 4302 states that the Employer must establish 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.

II. Positions of the Parties

The Agency contends that, to the extent that it requires the performance standards themselves to be fair and reasonable, as well as to be fairly and reasonably applied, the disputed provision violates management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. The Union did not file a Reply Brief in this case, but explains, in its petition for review, that the intent of the provision is to give employees the right to raise before an arbitrator the issue of whether the employer applied performance standards fairly and reasonably and in a manner otherwise consistent with the provisions of 5 U.S.C. Section 4302.

III. Analysis and Conclusion

Contrary to the Union's explanation, the clear language of the disputed provision is not limited to subjecting the application of performance standards to grievance and arbitral review. It also, by the language contained in the second sentence as to "whether a performance standard is fair and reasonable," would require an arbitrator to determine whether performance standards themselves are fair and reasonable by reviewing the criteria used by management in such standards to evaluate job performance. As such it would provide the basis for arbitral view of the content of performance standards and would permit arbitrators to substitute their judgements as to the proper content of performance standards for that of the Agency. Thus, the disputed provision in this case is to the same effect as a disputed portion of a proposal found to be outside the duty to bargain in American Federation of Government Employees, Local 32 and Office of Personnel Management, Washington, D.C., 16 FLRA 948 (1984) (Proposal 3). In that decision the Authority held that the disputed portion of a proposal which provided that "performance standards . . . must be fair and equitable" violated management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. Based on Office of Personnel Management and the cases cited therein, this provision, to the extent that it requires an arbitrator to determine whether performance standards themselves are fair and reasonable, is also outside the duty to bargain. See also American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 17 FLRA 790 (1985) (Proposal 3).

IV. Order

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.

Issued, Washington, D.C., July 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY