American Federation of Government Employees, Local 3656, AFL-CIO (Union) and Federal Trade Commission, Boston Regional Office (Agency) (Authority decision, April 30, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. 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

A union proposed bargaining over a Federal Trade Commission office’s performance appraisal and promotion standards. The Authority read the proposal to require bargaining over the content of performance standards. It held that this would interfere with management’s rights to direct employees and assign work, and dismissed the petition. The decision distinguished possible bargaining over procedures, arrangements, and advance notice.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(A), 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Agency nonnegotiability position upheld; petition dismissed.
• Key point: Management need not bargain over the substance of performance standards.

Full text (FLRA public release)

[ v05 p554 ]

05:0554(70)NG

The decision of the Authority follows:

5 FLRA No. 70

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3656
Union

and

FEDERAL TRADE COMMISSION,
BOSTON REGIONAL OFFICE
Agency

Case No. 0-NG-78

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

UNION PROPOSAL /1/

PROMOTION AND PERFORMANCE APPRAISAL STANDARDS

SECTION 1. THE EMPLOYER'S POLICIES AND PROCEDURES CURRENTLY IN
EFFECT, OR TO BE

IMPLEMENTED IN THE FUTURE, REGARDING MERIT PROMOTION AND PERFORMANCE
APPRAISAL STANDARDS, AND

THE APPLICATION OF THOSE STANDARDS, ARE SUBJECT TO NEGOTIATION, SUCH
NEGOTIATION TO COMMENCE

WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT. THE UNION
AND EMPLOYEES WILL BE

INFORMED, IN WRITING, OF ANY PROPOSED CHANGES IN SUCH POLICIES AND
PROCEDURES AND GIVEN AN

OPPORTUNITY TO MEET AND CONFER THEREON BEFORE SAID POLICIES AND
PROCEDURES BECOME FINAL.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN BECAUSE IT IS INCONSISTENT WITH LAW, I.E., SECTION 7106 OF THE
STATUTE, AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION AND ORDER: THE UNION'S PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE IN THAT IT REQUIRES
NEGOTIATION ON THE CONTENT OF PERFORMANCE STANDARDS. /2/ ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE
PETITION FOR REVIEW OF THE DISPUTED PROPOSAL BE DISMISSED.

HOWEVER, AS THE AUTHORITY HAS EMPHASIZED IN OTHER CASES, /3/ ITS
DECISION THAT THE CONTENT OF PERFORMANCE STANDARDS IS NONNEGOTIABLE DOES
NOT MEAN THAT OTHER ASPECTS OF THE PERFORMANCE APPRAISAL SYSTEMS
REQUIRED BY 5 U.S.C. 4302 ARE OUTSIDE THE DUTY TO BARGAIN UNDER THE
STATUTE. IN ADDITION, THE AUTHORITY HAS EMPHASIZED THAT, UNDER SECTION
7106(B)(2) AND (3), AN AGENCY HAS THE DUTY TO BARGAIN ON THE PROCEDURES
MANAGEMENT WILL OBSERVE IN, AND ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY THE ESTABLISHMENT OF PERFORMANCE
STANDARDS BY AGENCY MANAGEMENT. /4/ IN THIS REGARD, FOR EXAMPLE,
PROPOSALS WHICH REQUIRE ADVANCE NOTICE OF PROPOSED CHANGES IN
PERFORMANCE STANDARDS AND CRITICAL ELEMENTS AND AN OPPORTUNITY FOR THE
UNION TO COMMENT THEREON, AND WHICH ARE OTHERWISE CONSISTENT WITH LAW
AND REGULATION, WOULD BE WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE
STATUTE.

REASONS: THE LANGUAGE OF THE DISPUTED PROPOSAL IS CONCERNED WITH
VARIOUS ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS AND STANDARDS AS THEY
RELATE TO PERFORMANCE APPRAISAL. APART FROM OTHER MATTERS, THE AGENCY
CLAIMS THAT THE PROPOSAL "ON ITS FACT" REQUIRES AGENCY MANAGEMENT TO
NEGOTIATE THE "SUBSTANCE" OF PERFORMANCE STANDARDS. /5/ THE UNION DOES
NOT CONTRADICT THIS AGENCY STATEMENT AND PRINCIPALLY TAKES THE POSITION
THAT THE ESTABLISHMENT OF PERFORMANCE STANDARDS IS WITHIN THE AGENCY'S
DUTY TO BARGAIN. IN THIS REGARD, THE UNION FURTHER CLAIMS THAT SHOULD
ITS PROPOSAL BE FOUND NONNEGOTIABLE, UNIT EMPLOYEES WOULD HAVE NO
"VIABLE" WAY TO PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
STANDARDS. /6/ THEREFORE, THE UNION ALSO IMPLICITLY CONSTRUES ITS
PROPOSAL AS REQUIRING NEGOTIATION ON THE ESTABLISHMENT OF PERFORMANCE
STANDARDS AND THAT INTERPRETATION OF THE DISPUTED PROPOSAL IS ADOPTED
FOR PURPOSES OF THIS DECISION.

THE PROPOSAL, TO THE EXTENT THAT IT WOULD REQUIRE NEGOTIATIONS ON THE
ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS, BEARS NO MATERIAL
DIFFERENCE FROM THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980) AT 4-6,
WHICH SIMILARLY WAS INTERPRETED BY THE PARTIES TO THAT CASE AS REQUIRING
NEGOTIATIONS ON THE ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE
STANDARDS. /7/ IN THAT CASE, THE AUTHORITY HELD, APPLYING THE
PRINCIPLES SET FORTH IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT
OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), THAT A
PROPOSAL WHICH REQUIRES NEGOTIATIONS ON THE ESTABLISHMENT AND SUBSTANCE
OF PERFORMANCE STANDARDS IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT
DIRECTLY INTERFERES WITH THE EXERCISE OF AGENCY MANAGEMENT'S RIGHTS
UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE TO DIRECT EMPLOYEES
AND TO ASSIGN WORK. THEREFORE, BASED ON THE REASONS SET FORTH IN
GREATER DETAIL IN AFGE, LOCAL 32, SUPRA, AND BUREAU OF THE PUBLIC DEBT,
SUPRA, THE PROPOSAL HEREIN, BY REQUIRING THE AGENCY TO NEGOTIATE ON THE
ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS, IS OUTSIDE THE
DUTY TO BARGAIN UNDER SECTION 7106 OF THE STATUTE.

IT MUST BE EMPHASIZED, HOWEVER, AS WAS STATED IN BUREAU OF THE PUBLIC
DEBT AND AFGE, LOCAL 32, THAT NOT ALL MATTERS PERTAINING TO THE
DEVELOPMENT OF PERFORMANCE APPRAISAL SYSTEMS ARE OUTSIDE THE DUTY TO
BARGAIN. IN THIS REGARD, THE DECISION IN BUREAU OF THE PUBLIC DEBT, AT
10 OF THE DECISION, STATED AS FOLLOWS:

THIS DECISION DOES NOT MEAN THAT ALL MATTERS RELATED TO ESTABLISHING
PERFORMANCE APPRAISAL

SYSTEMS ARE OUTSIDE THE DUTY TO BARGAIN. CONSISTENT WITH THE INTENT
OF CONGRESS AS EXPRESSED

IN SECTION 7101 AND OTHER SECTIONS OF THE STATUTE, PERFORMANCE
APPRAISAL SYSTEMS, APART FROM

THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE ESTABLISHMENT OF
PERFORMANCE STANDARDS, ARE

WITHIN THE DUTY TO BARGAIN, TO THE EXTENT THEY ARE CONSISTENT WITH
LAW AND REGULATION. TO THE

EXTENT THAT AN AGENCY HAS DISCRETION WITH RESPECT TO A GIVEN MATTER
RELATED TO SUCH SYSTEMS

THE AGENCY MUST UPON REQUEST NEGOTIATE WITH AN EXCLUSIVE
REPRESENTATIVE OVER THAT MATTER. IN

PARTICULAR, AS NOTED PREVIOUSLY, SECTION 4302(A)(2) OF THE CSRA
REQUIRES THAT PERFORMANCE

APPRAISAL SYSTEMS "ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING
PERFORMANCE STANDARDS" BUT

DOES NOT SPECIFY THE FORM WHICH SUCH EMPLOYEE PARTICIPATION MUST
TAKE. CONSEQUENTLY, AMONG

OTHER SIGNIFICANT ASPECTS OF PERFORMANCE APPRAISAL SYSTEMS, THE
MANNER IN WHICH A PARTICULAR

AGENCY PROVIDES FOR SUCH EMPLOYEE PARTICIPATION IS WITHIN THE
AGENCY'S DISCRETION AND,

THEREFORE, WITHIN THE DUTY TO BARGAIN TO THE EXTENT THAT IT WOULD NOT
PREVENT THE AGENCY FROM

ESTABLISHING PERFORMANCE STANDARDS AND CRITICAL ELEMENTS PURSUANT TO
ITS STATUTORY RIGHTS TO

DIRECT EMPLOYEES AND ASSIGN WORK.

THUS, PROPOSALS WHICH ARE OTHERWISE CONSISTENT WITH LAW AND
REGULATION AND RELATE ONLY TO PARTICULAR ASPECTS OF PERFORMANCE
APPRAISAL SYSTEMS, APART FROM THE IDENTIFICATION OF CRITICAL ELEMENTS
AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, ARE WITHIN THE DUTY TO
BARGAIN.

SIMILARLY, THE DECISION IN BUREAU OF THE PUBLIC DEBT STATED THAT
PROPOSALS WHICH ONLY ESTABLISH PROCEDURES FOR THE DEVELOPMENT AND
IMPLEMENTATION OF PERFORMANCE STANDARDS AND CRITICAL ELEMENTS, OR WHICH
ONLY ESTABLISH APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED
BY THE APPLICATION OF PERFORMANCE STANDARDS AND CRITICAL ELEMENTS TO
THEM, ARE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) AND (3) OF
THE STATUTE. /8/ IN THIS REGARD, THE AUTHORITY STATED, AT 11-12 OF THE
DECISION, AS FOLLOWS:

(S)ECTION 7106(B)(2) PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN
ON THE PROCEDURES WHICH

MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING SECTION 7106 RIGHTS.
SIMILARLY, SECTION

7106(B)(3) PROVIDES THAT MANAGEMENT HAS A DUTY TO BARGAIN ON
APPROPRIATE ARRANGEMENTS FOR

EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS
AUTHORITY. THE LEGISLATIVE

HISTORY RELEVANT TO THESE PROVISIONS MAKES CLEAR THAT THEY ARE
INTENDED TO AUTHORIZE AN

EXCLUSIVE REPRESENTATIVE TO NEGOTIATE ON SUCH MATTERS EXCEPT TO THE
EXTENT THAT THE

ESTABLISHMENT OF PROCEDURES OR APPROPRIATE ARRANGEMENTS THROUGH
NEGOTIATIONS WOULD PREVENT THE

AGENCY FROM ACTING AT ALL. INSOFAR AS IT IS CONSISTENT WITH
MANAGEMENT'S AUTHORITY TO ACT,

CONGRESS INTENDED THE PARTIES TO WORK OUT THEIR DIFFERENCES IN
CONNECTION WITH THESE MATTERS

THROUGH NEGOTIATIONS. THUS, TO THE EXTENT CONSISTENT WITH LAW AND
REGULATION, THE PROCEDURAL

CONTEXT OF PERFORMANCE EVALUATION, INCLUDING PROCEDURES RELATED TO
THE IDENTIFICATION OF

CRITICAL ELEMENTS AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, AND
APPROPRIATE ARRANGEMENTS

FOR EMPLOYEES ADVERSELY AFFECTED BY ACTIONS TAKEN UNDER THOSE
STANDARDS, ARE SUBJECT TO

BARGAINING. THIS IS CONSISTENT WITH THE MANDATE OF CONGRESS AS
EXPRESSED IN SECTION 4302 THAT

PERFORMANCE APPRAISAL SYSTEMS MUST ENCOURAGE EMPLOYEE PARTICIPATION
IN THE ESTABLISHMENT OF

PERFORMANCE STANDARDS.

WITH FURTHER REFERENCE TO PROCEDURES, OPM SUGGESTED AN EXCLUSIVE
REPRESENTATIVE COULD

NEGOTIATE WITH REGARD TO THE PROCESS BY WHICH CRITICAL ELEMENTS AND
PERFORMANCE STANDARDS ARE

COMMUNICATED TO EMPLOYEES, PERIODIC APPRAISALS AT LEAST ON AN ANNUAL
BASIS, THE MANNER IN

WHICH THE PERFORMANCE OF EMPLOYEES ON DETAIL WILL BE APPRAISED, THE
MANNER IN WHICH AN

EMPLOYEE'S DISAGREEMENT WITH HIS OR HER PERFORMANCE APPRAISAL WILL BE
REVIEWED, AND THE

PROCESS BY WHICH PROPOSED PERFORMANCE STANDARDS WILL BE REVIEWED
WITHIN THE AGENCY. CREATIVE

APPROACHES TO COLLECTIVE BARGAINING MAY EXPAND THE POSSIBILITIES
SUGGESTED. THE STATED

EXAMPLES REFLECT THE WIDE RANGE OF EMPLOYEE PARTICIPATION POSSIBLE
THROUGH NEGOTIATION WITHIN

UNITS OF EXCLUSIVE RECOGNITION AND THE VARIETY OF PROTECTIONS FOR
EMPLOYEES WHICH MAY BE

NEGOTIATED AS A PART OF SUCH SYSTEMS.

THEREFORE, THE UNION'S PROPOSAL WOULD REQUIRE NEGOTIATION ON THE
ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS AND TO THAT EXTENT
IT IS OUTSIDE THE DUTY TO BARGAIN. HOWEVER, IF THE UNION'S PROPOSAL,
WHICH, AS PREVIOUSLY INDICATED, IS CONCERNED WITH VARIOUS ASPECTS OF
PERFORMANCE APPRAISAL SYSTEMS AND STANDARDS AS THEY RELATE TO
PERFORMANCE APPRAISAL, WERE REVISED TO BE CONSISTENT WITH THE DECISION
HEREIN AND WITH LAW AND REGULATION, SUCH PROPOSAL WOULD BE WITHIN THE
DUTY TO BARGAIN. IN PARTICULAR, UNDER THE DECISION HEREIN, FOR EXAMPLE,
A PROPOSAL WHICH REQUIRED ADVANCE NOTICE TO THE UNION OF PROPOSED
CHANGES IN PERFORMANCE STANDARDS AND CRITICAL ELEMENTS AND AN
OPPORTUNITY FOR THE UNION TO COMMENT THEREON, AND WHICH IS OTHERWISE
CONSISTENT WITH LAW AND REGULATION, WOULD BE WITHIN THE AGENCY'S DUTY TO
BARGAIN UNDER THE STATUTE.

ISSUED, WASHINGTON, D.C., APRIL 30, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ A SECOND PROPOSAL, ORIGINALLY PART OF THE APPEAL IN THIS CASE,
WAS WITHDRAWN BY THE UNION AND IS NOT BEFORE THE AUTHORITY.

/2/ SECTION 7106(A)(2)(A) AND (B) (5 U.S.C. 7106(A)(2)(A) AND (B))
PROVIDES AS FOLLOWS:

SEC. 7106. MANAGEMENT RIGHTS

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY --

(2) IN ACCORDANCE WITH APPLICABLE LAWS --

(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,

REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;

(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO

DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)

/3/ SEE, E.G., NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980) AT 10-11
OF THE DECISION; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY
DEVELOPMENT CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981) AT 6-7
OF THE DECISION.

/4/ SEE, E.G., BUREAU OF THE PUBLIC DEBT, ID., AT 11-12 OF THE
DECISION; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO.
120(1980) AT 7-11 OF THE DECISION; AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE COMMISSION, BOSTON
REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA NO. 92(1980).

/5/ AGENCY STATEMENT OF POSITION AT 2.

/6/ UNION RESPONSE AT 8.

/7/ THE UNION PROPOSAL AT ISSUE IN AFGE, LOCAL 32 REFERRED TO ABOVE,
WHICH THE PARTIES IN THAT CASE INTERPRETED AS REQUIRING NEGOTIATIONS ON
THE ESTABLISHMENT AND SUBSTANCE OF PERFORMANCE STANDARDS, PROVIDED AS
FOLLOWS:

SECTION 6. EMPLOYEES SHALL PARTICIPATE IN ESTABLISHING PERFORMANCE
STANDARDS THROUGH

COLLECTIVE BARGAINING, TO THE EXTENT THIS MATTER IS WITHIN THE SCOPE
OF BARGAINING.

/8/ SECTION 7106(B)(2) AND (3) (5 U.S.C. 7106(B)(2) AND (3)) PROVIDES
AS FOLLOWS:

SECTION 7106. MANAGEMENT RIGHTS

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY

AUTHORITY UNDER THIS SECTION; OR

(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY

AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.