National Treasury Employees Union and HHS Social Security Administration, Office of Hearings and Appeals (Authority decision, October 29, 1984)

Final FLRA decision. The Authority dismisses the union's negotiability petition on the merits. An aggrieved person may seek judicial review of a final Authority order by petitioning 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 order unless the court orders a stay under § 7123(c).

Plain-English summary

NTEU challenged the agency head's disapproval of a contract provision that set five overall performance appraisal levels and the quality of work required for each. The Authority held that deciding rating levels and their requirements is part of management's rights to direct employees and assign work. It therefore found the provision outside the duty to bargain and dismissed the petition. The decision distinguished an employee's ability to grieve how management applies its own performance requirements.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E), 7106(a)(2)(A) and (B), and 7114(c).
• Outcome: Appraisal rating provision held nonnegotiable; petition dismissed.
• Key point: Management sets performance levels, although application of those requirements to an employee may be grieved.

Full text (FLRA public release)

[ v16 p285 ]

16:0285(43)NG

The decision of the Authority follows:

16 FLRA No. 43

NATIONAL TREASURY EMPLOYEES
UNION
Union

and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF HEARINGS
AND APPEALS
Agency

Case No. O-NG-832

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 presents an issue concerning the negotiability of the following provision of an agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute:

Article 37, Section 5.c Performance Appraisals

1. Unsatisfactory. This appraisal applies if the employee
   failed to meet one or more critical job elements regardless of performance on non-critical elements.

2. Minimally Satisfactory. This appraisal applies if the
   employee only partially met one or more critical job elements or if the employee met all critical job elements but failed to meet a substantial number of non-critical job elements.

3. Fully Satisfactory. This appraisal applies if the
   employee, at a minimum, met all critical job elements and most non-critical job elements OR if the employee exceeded all of the critical job elements and met a number of non-critical job elements.

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

5. Outstanding. This summary appraisal applies if the
   employee substantially exceeded all critical job elements and most non-critical job elements.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The provision would establish the number of rating levels for an appraisal of overall performance and what quality of overall performance is required in order to achieve a particular overall rating. As such, it is substantially identical in effect to a portion of the union's proposal which was before 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 held that a portion of a proposal to set the number of rating levels for an appraisal of overall performance and to determine what quality of performance would be required to obtain a particular rating was inconsistent with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In this regard, the Authority held that an essential aspect of management's assignment of work and the direction of employees in the performance of their work was to establish the job requirements for various levels of performance so as to achieve the quality and amount of work needed to fulfill the agency's mission and functions. Based upon Department of Justice and for the reasons more fully stated therein, it is concluded that the instant provision is outside the duty to bargain. /1/ Of course, a proposal or provision which would permit an employee to grieve the application to that employee of the performance requirements established by management would be within the duty to bargain. American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981) (Union Proposal 4), affirmed sub nom. American Federation of Government Employees, AFL-CIO, Local 1968 v. Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, . . . U.S. . . . , 103 S.Ct. 2085 (1983).

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., October 29, 1984

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

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

/1/ In view of this determination, the Authority finds it unnecessary to address the Agency's contention that the provision is outside the duty to bargain because it conflicts with an Agency regulation for which a compelling need exists.