National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island (Authority decision, April 24, 1990)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed that an employee's supervisor make the final decision on that employee's performance elements and standards. The Navy argued that this would prevent management from assigning that decision to someone else. The Authority agreed that requiring a particular official to make the decision interfered with management's right to assign work. It held the proposal outside the duty to bargain and dismissed the union's petition.

Decision snapshot

• Authority: Management's right to assign work under 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Proposal found nonnegotiable; petition dismissed.
• Key point: A bargaining proposal cannot require management to assign a decision to a particular official.

Full text (FLRA public release)

[ v35 p642 ]
35:0642(72)NG

The decision of the Authority follows:

35 FLRA No. 72

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES

LOCAL R1-144

(Union)

and

U.S. DEPARTMENT OF THE
NAVY

NAVAL UNDERWATER SYSTEMS
CENTER

NEWPORT, RHODE
ISLAND

(Agency)

0-NG-1755

DECISION AND ORDER ON A NEGOTIABILITY
ISSUE

April 24, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns one proposal which specifies that the final decision as to an employee's performance standards and elements rests with the employee's supervisor.

We find that the proposal is nonnegotiable because it interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

II. The Proposal

The final decision as to the employee's elements and standards rests with the employee's supervisor.

III. Positions of the Parties

The Agency contends that the proposal "requires that the employee's supervisor make the final decision on which performance standards and elements will be assigned to the employee." Statement of Position at 1. The Agency argues that this requirement "would preclude management from assigning the duty of establishing performance standards and elements to any other position" and that a proposal which assigns a specific task to a particular position is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B). Id.

The Union asserts that the proposal "concerns neither assignment of work, appraisal of work, nor delineation of work[.]" Response at

1. The Union contends that the proposal "does not assign tasks to supervisors"
   but "merely delineates the position in the chain of determination which an employee's supervisor will hold regarding that employee's elements and standards." Id. at 2. According to the Union, the proposal is negotiable because it "suggests a procedure for processing information pertaining to elements and standards[.]" Id. The Union further states that the proposal "does not mandate what the elements and standards will be" and that it "preserves management's right to define 'final.'" Id.

IV. Analysis

We conclude that the proposal is outside the duty to bargain.

Proposals which require that specific duties be assigned to particular individuals, including management officials, directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Patent Office Professional Association v. FLRA, 873 F.2d 1485, 1488 (D.C. Cir. 1989), affirming sub nom. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987) (Proposal 1); and American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1255 (1988) (Provision 11). Compare Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA No. 61 (1990) (Provision 3, Member Armendariz concurring in part and dissenting in part).

The proposal in this case states that the final decision on an employee's performance standards and elements rests with the supervisor. Although the proposal does not mandate what those standards and elements will be, it does clearly require that the employee's supervisor will be the individual who makes the final determination as to the content of those standards and elements. The effect of the proposal is to preclude management from designating other individuals to make that determination.

Because it requires the employee's supervisor to make the final determination as to employee performance standards and elements, the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B). As the proposal directly interferes with a management right, it is not a negotiable procedure under section 7106(b)(2). See American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990, 994-95 (1988). Accordingly, the proposal is nonnegotiable.

V. Order

The Union's petition for review is dismissed.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)