American Federation of Government Employees Locals 112, 3269, 3383 and 3831 and Department of Health and Human Resources, Food and Drug Administration, Region V (Authority decision, August 31, 1984)

Final FLRA decision. This is a final negotiability 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

Four AFGE locals proposed performance appraisal rules for Food and Drug Administration Region V employees. One proposal would set the levels of performance needed for overall ratings; the other would make employees with specified ratings entitled or eligible for a quality step increase. The Authority found that both proposals would prescribe performance standards that management has the right to set when directing employees and assigning work. It held both outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Both proposals nonnegotiable; petition dismissed.
• Key point: Management sets the performance levels used for ratings and superior performance rewards.

Full text (FLRA public release)

[ v15 p906 ]

15:0906(171)NG

The decision of the Authority follows:

15 FLRA No. 171

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCALS 112, 3269,
3383 and 3831
Union

and

DEPARTMENT OF HEALTH AND HUMAN
RESOURCES, FOOD AND DRUG ADMINISTRATION,
REGION V
Agency

Case No. O-NG-544

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.

Union Proposal 1

Fully Satisfactory. This summary appraisal applies if the employee, at a minimum, fully met all critical job elements and fully met a substantial number of non-critical job elements.

Excellent. This summary appraisal applies if the employee exceeded all of the critical job elements and fully met a substantial number of non-critical job elements.

Outstanding. This summary appraisal applies if the employee substantially exceeded all the critical job elements and exceeded a substantial number of non-critical job elements.

Union Proposal 2

An employee who achieves an Outstanding overall performance appraisal . . . shall be granted a Quality Step Increase. An employee who receives an Excellent overall performance appraisal will be eligible for a Quality Step Increase.

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

Union Proposal 1 would establish what quality of performance in individual job elements would be required to achieve a particular summary rating of overall employee job performance. As such, it is materially identical in effect to a portion of the proposal which was held nonnegotiable by the Authority 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 ruled , that a proposal which would have established the particular levels of performance in individual job elements which would be required to achieve a particular summary rating for overall performance is inconsistent with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Accordingly, for the reasons fully stated in Department of Justice, Union Proposal 1 is outside the duty to bargain.

Union Proposal 2 would establish the performance level, i.e., outstanding, at which an employee would be entitled to a quality step increase and the level, i.e., excellent, at which an employee would be eligible for such an award. In this regard, it is materially identical in effect to Union Proposal 1 which was held outside the duty to bargain in National Treasury Employees Union and Internal Revenue Service, 14 FLRA No. 77 (1984), appeal docketed sub nom. NTEU v. FLRA, No. 84-1292 (D.C. Cir. July 9, 1984). In that case, Union Proposal 1 would have prescribed the performance standards an employee needed to attain to be eligible for a reward for superior performance. The Authority stated as to that proposal that management's rights to direct employees and assign work extend to establishing job requirements, e.g., performance standards, for various levels of achievement, which management will use to encourage and reward successful performance. Thus, an integral aspect of management's exercise of these rights is to prescribe the level of performance which an employee must attain in order to receive or be eligible for a reward for superior performance. Internal Revenue Service, 14 FLRA No. 77 (1984) and cases cited therein at nn.7 & 8 and accompanying text. Since Union Proposal 2, in the present case, would prescribe the overall performance appraisal an employee needs to attain in order to receive or be eligible for a quality step increase, i.e., a reward for superior performance, the proposal directly interferes with management's rights to direct employees and assign work under the rationale set forth in full in Internal Revenue Service and is not within 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. /1/

Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ In view of the Authority's decision herein, it is unnecessary to consider the Agency's additional arguments that the proposals are outside the duty to bargain.