AFGE Local 32 and Office of Personnel Management (Authority decision, August 15, 1985)

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

The union proposed mandatory quality step increases for employees with specified ratings and advance objective standards for all awards. The Authority found that both proposals controlled the circumstances in which management would reward performance. It held they interfered with management's rights to direct employees and assign work, and dismissed the petition.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Both award proposals outside the duty to bargain; petition dismissed.
• Key point: Management retained discretion over performance award criteria.

Full text (FLRA public release)

[ v19 p743 ]

19:0743(91)NG

The decision of the Authority follows:

19 FLRA No. 91

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 32, AFL-CIO
Union

and

OFFICE OF PERSONNEL MANAGEMENT
Agency

Case No. O-NG-1054

DECISION AND ORDER ON NEGOTIABILITY ISSUES

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 issues concerning the negotiability of two Union proposals. Upon careful consideration of the entire record, including the parties' contentions,
/1/ the Authority makes the following determinations.

Union Proposal 1

Article 7, Sections 9a, 9b and 9c, "An employee in steps 1 through 3 who is outstanding will be given a quality step increase; an employee in steps 4 through 10 who is outstanding will be given a quality step increase; and 'Outstanding' means outstanding in any critical element."

Union Proposal 1 prescribes the level of achievement under the Agency's performance appraisal system which is sufficient to entitle an employee to a quality step increase. In thus establishing the criteria for the Agency's decision to reward employee performance, Proposal 1 herein is to the same effect as Union Proposals 2 and 3 in American Federation of State, County and Municipal Employees, AFL-CIO, Locals 2477 and 2910 and Library of Congress, 17 FLRA No. 108 (1985), which prescribed the levels of achievement under the agency's performance appraisal system sufficient to entitle an employee to an incentive award and which were found nonnegotiable. In that case, the Authority, relying on National Treasury Employees Union and Internal Revenue Service, 14 FLRA 463 (1984) (Member Haughton dissenting) (Union Proposals 5 and 6), appeal docketed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, No. 84-1292 (D.C. Cir. July 9, 1984), concluded that Proposals 2 and 3 were determinative of the conditions under which an incentive award was to be granted, that is, the attainment of a stated level of achievement or performance rating and that the proposals directly interfered with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In a similar manner, Union Proposal 1 herein is determinative of the requirements under which the Agency will grant a quality step increase, that is, the attainment of a particular performance rating. Therefore, for the reasons more fully set forth in Library of Congress, Union Proposal 1 herein directly interferes with management's rights, under section 7106, to direct employees and assign work through the establishment of rewards for employee performance and is outside the duty to bargain. See also American Federation of Government Employees, AFL-CIO, Locals 112, 3269, 3383 and 3831 and Department of Health and Human Resources, Food and Drug Administration, Region V, 15 FLRA No. 171 (1984) (Union Proposal 2).

Union Proposal 2

Article 11, Section 1, "Any employee meeting the announced standard for any award will be given the award. No awards will be given unless objective standards are announced in advance."

Union Proposal 2 would require that the Agency announce in advance objective standards for any award and grant any employee meeting the announced standard an award. The Authority held in Internal Revenue Service, 14 FLRA at 470, that management's exercise of its rights to assign work and direct employees, pursuant to section 7106(a)(2)(A) and (B) of the Statute, includes the establishment of an awards system and that "the circumstances under which an incentive may be awarded are essential components of management's judgment." Inasmuch as both requirements in Union Proposal 2, the announcement of standards and the obligation to reward all employees meeting that standard, are aspects of an award system, the Authority concludes that, based on Internal Revenue Service, Union Proposal 2 is outside the duty to bargain.

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., August 15, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

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/1/ The Union did not file a Reply Brief in this case.