American Federation of Government Employees, Council of Locals 163 and U.S. Department of Defense, Defense Contract Audit Agency, Northeastern Region (Authority decision, February 28, 1997)

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

AFGE Council 163 proposed a rule for when employees of the Defense Contract Audit Agency would receive an overall rating of minimally successful. The proposal tied that rating to scores on at least two critical performance elements. The Authority held that setting those criteria would improperly affect management's rights to direct employees and assign work. The union did not show that the proposal was a bargaining procedure or a tailored arrangement for employees harmed by management action. The Authority ruled the proposal outside the duty to bargain and dismissed the union's petition.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Proposal found nonnegotiable; union petition dismissed.
• Key point: A union proposal setting the performance levels needed for an overall rating affects management's assignment and direction of work.

Full text (FLRA public release)

[ v52 p1063 ]
52:1063(108)NG

The decision of the Authority follows:

52 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

COUNCIL OF LOCALS 163

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE CONTRACT AUDIT AGENCY

NORTHEASTERN REGION

LEXINGTON, MASSACHUSETTS

(Agency)

0-NG-2285

_____

DECISION AND ORDER ON A NEGOTIABILITY
ISSUE

February 28, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

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) and concerns the negotiability of one proposal, which arose during contract negotiations and was involved in a request for assistance to the Federal Service Impasses Panel. The proposal establishes the level of performance in individual job elements necessary to achieve a particular summary rating for overall performance. For the reasons that follow, we find that the proposal impermissibly affects management's rights to direct employees and assign work and the record does not permit a finding that it is nonetheless negotiable under section 7106(b)(3) of the Statute. Accordingly, the proposal is not within the duty to bargain.

II. Proposal

MINIMALLY SUCCESSFUL: Two or more critical performance elements are rated minimally successful with none lower than minimally successful.

III. Positions of the Parties

A. Agency

The Agency contends that this proposal directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is not within the duty to bargain. As support for its position, the Agency relies on American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578 (1984) (Department of Justice).(*)

B. Union

The Union asserts the proposal is negotiable under section 7106(b)(2) and (3). With respect to the former, the Union states only that "[t]he procedures by which individuals are assigned work are directly affected by the procedures used to rate them." Response at 2. As to the latter, the Union argues that the proposal addresses a change in the criteria and weighting involved in performance appraisals that will adversely affect some individuals. The Union contends that, as a result of this change, it would be unfair to permit minimally successful performance in only one critical element to result in an overall rating of minimally successful and that such a result would have monetary and job-threatening consequences.

IV. Analysis and Conclusions

A. Meaning of the Proposal

This proposal establishes the level of performance in individual job elements that are required for an overall summary rating of minimally successful. Specifically, a rating of minimally successful in two or more critical elements, with no critical element rated lower than minimally successful, would be necessary for a summary rating of minimally successful.

B. The Proposal Impermissibly Affects Management's Rights To Direct Employees and Assign Work

Proposals that establish criteria for performance evaluations affect management's rights to direct employees and assign work. E.g., National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 473 (1990) (Naval Underwater Systems Center, Newport), remanded as to other matters without decision, No. 91-1045 (D.C. Cir. July 23, 1991). An essential aspect of management's assignment of work and the supervision and guidance of employees in the performance of their work is the establishment of job requirements for various levels of performance so as to elicit the quality and amount of work from employees necessary to effectively and efficiently fulfill the agency's mission and functions. Consequently, a proposal that establishes the particular level of performance in individual job elements required to achieve a particular summary rating for overall performance affects management's rights to direct employees and assign work. Naval Underwater Systems Center, Newport, 38 FLRA at 473 (citing Department of Justice, 13 FLRA at 580).

Like Proposal 5 in Naval Underwater Systems Center, Newport, and the proposal in Department of Justice, the proposal in this case establishes the particular level of performance in individual job elements (two critical elements minimally successful and none less than minimally successful) required for a particular summary rating (minimally successful). Consequently, this proposal impermissibly affects management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

C. The Proposal Is Not a Procedure Under Section 7106(b)(2)

The Union provides no support or authority for its assertion that this proposal constitutes a procedure under section 7106(b)(2). When a union fails to support such an assertion, the Authority will not address it. American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513-14 (1996) (Member Wasserman dissenting as to other matters). Accordingly, the Union's assertion provides no basis for concluding that the proposal is within the duty to bargain under section 7106(b)(2).

D. The Proposal Is Not an Appropriate Arrangement Under Section 7106(b)(3)

The standard for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that standard, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. The alleged arrangement must be "tailored" to compensate or benefit employees suffering the adverse effects attributable to the exercise of management's right(s). E.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part). If the proposal is an arrangement, the Authority then determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33.

It is well established that the parties bear the burden of creating a record on which the Authority can make a negotiability decision. E.g., National Federation of Federal Employees, Local 2079 and U.S. Department of Agriculture, Forest Service, Umpqua National Forest, Roseburg, Oregon, 49 FLRA 396, 403 (1994). A party failing to meet this burden acts at its peril. E.g., id.

The record in this case does not support a finding that this proposal is an arrangement within the meaning of section 7106(b)(3). The Union states that "some" employees will be adversely affected by the Agency's action in changing the criteria and weighting for critical elements. Response at 2. The Union asserts that this proposal is intended to compensate for the adverse effects of that change. However, it is not clear from the record how the change in determining ratings on critical elements will affect unit employees in general or, if not, how this proposal is tailored to compensate employees suffering adverse effects flowing from that change. See International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 459 (1995) (not all employees affected by a reduction in force are necessarily adversely affected; proposal that would apply without distinction to both employees adversely affected by RIF-related assignments and those not so affected lacked necessary tailoring).

As we are unable to find that this proposal constitutes an arrangement under section 7106(b)(3) of the Statute and we find that it impermissibly affects management's rights to direct employees and assign work, we conclude that this proposal is outside the duty to bargain.

V. Order

The Union's petition for review is dismissed.

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

*/ The Agency also asserts, and the
Union denies, that the petition in this case is untimely. However, in the unusual circumstances of this case and in view of the fact that precedent firmly supports a conclusion that this proposal is not within the duty to bargain, we assume, without deciding, that the Union's petition is timely filed.