AFSCME Local 2478 and United States Commission on Civil Rights (Authority decision, October 24, 1984)

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

AFSCME Local 2478 proposed that annual evaluations rate each element of an employee's position at one of four specified levels. The Authority found that the provision would set the number of rating levels for individual job elements. Applying its earlier ruling on the same issue, it held that the proposal interfered with management's rights to direct employees and assign work. It dismissed the union's negotiability petition. The Authority left any separate dispute about a duty to bargain in the particular circumstances for another proceeding.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E); management rights under § 7106(a)(2)(A) and (B).
• Outcome: Petition dismissed; the rating level provision was outside the duty to bargain.
• Key point: A union proposal cannot set the number of performance appraisal levels for individual job elements.

Full text (FLRA public release)

[ v16 p255 ]

16:0255(36)NG

The decision of the Authority follows:

16 FLRA No. 36

AMERICAN FEDERATION OF
STATE, COUNTY AND
MUNICIPAL EMPLOYEES,
LOCAL 2478
Union

and

UNITED STATES COMMISSION
ON CIVIL RIGHTS
Agency

Case No. O-NG-1005

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises the question of the negotiability of the following provision:

The annual evaluation will rate each element of the employee's position as either "unsatisfactory," "satisfactory," "superior," or "outstanding," as determined by comparison of the employee's performance of that element with the performance standard for that element.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations:

This provision is materially to the same effect as a portion of the Union proposal which the Authority found to be outside the duty to bargain in American Federation of State, County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA No. 96 (1984). In that case, the Authority found that a proposal which would establish the number of levels for appraisal of an employee's performance in individual job elements interfered with the agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. For the reasons expressed in Department of Justice, the Authority finds that the provision presented herein is not within the duty to bargain. /1/

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., October 24, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The Authority decides only the negotiability issue presented under section 7105(a)(2)(E) of the Statute. To the extent that there are factual issues in dispute between the parties regarding the duty to bargain in the specific circumstances of this case, such issues should be raised in other appropriate proceedings. American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA No. 55 (1984), appeal docketed sub nom. Wurtsmith Air Force Base v. FLRA, 84-3459 (6th Cir. June 15, 1984).