[ v55 p449 ]
55 FLRA No. 73
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF GSA LOCALS
COUNCIL 236
and
GENERAL SERVICES ADMINISTRATION
0-NG-2387-001
_____
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
April 30, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. [n1] For the reasons which follow, we find that the proposal is outside the duty to bargain.
The measures of rating for over-all performance shall be one (1) of the (4) ratings defined below. The rating shall be:
--Unsatisfactory
--Successful
--Highly Successful
--Outstanding
Based on the above measures, the Employer agrees to financially reward employee accomplishments in accordance with Article 20 of the National Agreement.
After the Agency completed a final draft of its performance appraisal system, it began bargaining with the Union concerning that system. The Union offered several initial proposals, which it subsequently withdrew. The Union revised its proposals and submitted a proposed performance appraisal article that included a section establishing four overall performance rating levels. [n3] Article 19, "Performance Appraisal Systems," dated December 24, 1996; Attachment 4 to Agency's Statement of Position (proposed Article 19, Section 6.F.).
Based on statements by an Agency representative at a bargaining session that the number of rating levels was nonnegotiable, and referencing only the proposed Article 19, the Union requested a written allegation of nonnegotiability from the Agency. Union Letter dated March 3, 1997; Attachment 5 to Agency's Statement of Position. The Agency responded, reaffirming its position that the number of rating levels was nonnegotiable. Agency Letter dated March 13, 1997; Attachment 6 to the Agency's Statement of Position.
The Union filed a petition for review, including only the Agency's allegation of nonnegotiability. Agency Letter dated March 13, 1997; Attachment to Union's Petition for Review. The Union's petition for review did not contain the text of the proposal being appealed. The Authority issued an order to show cause directing the Union to provide the proposal being appealed. Pursuant to that order, the Union provided the proposal set forth above.
The Agency filed its statement of position before the Union submitted its response to the Authority's show cause order. The proposal set forth in the [ v55 p450 ] Agency's statement of position is proposed Article 19, Section 6.F. That proposal differs from the proposal provided by the Union in its response to the show cause order. [n4] There are two differences between the proposals: (1) a minor wording variation, the use of the term "measurement" in the Union's proposal and the term "range" in proposed Article 19, Section 6.F.; [n5] and (2) the additional sentence concerning awards included in the Union's proposal. The Union did not address these differences in its response to the Agency's statement of position. [n6]
The record indicates that the only proposal referenced by the Union in its request for an allegation of nonnegotiability is proposed Article 19. There is no evidence in the record of the parties bargaining over any other proposal between the Union's offer of the proposed article and its request for an allegation of nonnegotiability. It is reasonable to conclude, therefore, that the proposal declared nonnegotiable by the Agency is Article 19, Section 6.F. pertaining to the number of overall performance rating levels. Given this conclusion, the proposal submitted by the Union in response to the Authority's show cause order constitutes a modification of the proposal in dispute. The modification consists of the use of the term "measures" instead of the term "range" and the addition of the sentence concerning performance awards.
Under section 7117 of the Statute, and section 2424.1 of the Authority's Regulations, the Authority will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. See American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769 (1987). See also American Federation of Government Employees, AFL-CIO, Local 2578 and General Services Administration, National Archives and Records Service, 3 FLRA 109, 110 (1980) (National Archives). Where a union places before the Authority proposals modified from those alleged to be nonnegotiable by the agency, and the agency has not alleged the modified proposals to be nonnegotiable, the Authority dismisses the petition for review in its entirity without prejudice to the union's refiling at a later date should the union meet the conditions for review. See, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263, 269 (1990); American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130 (1990); International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 270 (1988); American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 37, 39-40 (1988); National Archives, 3 FLRA at 110. [n7]
The Authority has found, however, that where a modification of a proposal consists of the addition of terms to the sections of a proposal alleged to be nonnegotiable, it will consider the negotiability of the sections originally in dispute and dismiss the petition only as to the modification. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Production Center, Louisville, Kentucky, 45 FLRA 1199, 1200 (1992) (Hydrographic/Topographic Production Center). See also National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Washington, D.C., 48 FLRA 1323, 1324 n.* [ v55 p451 ] (1994). Cf. American Federation of Government Employees, Local 1426 and U.S. Department of the Army, Fort Sheridan, Illinois, 45 FLRA 867, 871 (1992) (where proposal appealed to the Authority lacked provisions that were part of the proposal alleged to be nonnegotiable by the agency, the Authority determined that the proposal could not be considered without the matters previously contained in the proposal and dismissed the petition).
The third sentence of the proposal submitted by the Union is an addition to the proposal alleged to be nonnegotiable by the Agency. There is no evidence in the record that the Union requested an allegation of nonnegotiability from the Agency as to that sentence or that the Agency alleged that the third sentence is nonnegotiable. In both these respects, the proposal submitted by the Union in this case is similar to the proposal in Hydrographic/Topographic Production Center. Consequently, consistent with Hydrographic/Topographic Production Center, the disputed first two sentences of the proposal are properly before the Authority. The third sentence has not been alleged by the Agency to be inconsistent with law, rule, or regulation and the petition for review as to that sentence should be dismissed.
Accordingly, we find that the disputed first two sentences of the proposal are properly before the Authority. [n8] We dismiss the petition for review as to the third sentence without prejudice to the union's refiling as to that sentence at a later date should the union meet the conditions for review.
The Agency contends that the proposal is outside the duty to bargain because it is inconsistent with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B). Citing Authority precedent, the Agency claims that the Authority has consistently held that proposals establishing the number of levels for summary performance ratings, and the designation of those levels, are nonnegotiable.
According to the Union, in revising its performance appraisal regulations, the Office of Personnel Management (OPM) permitted agencies to "have a range of two (2) to five (5) levels for summary performance rating." [n9] Response at 1. The Union argues that, because of OPM's revision of its regulations pertaining to the number of levels used for summary performance ratings, the subject of the number of such levels is negotiable.
The proposal, on its face, prescribes the number of rating levels that will be used to evaluate employees' overall performance and designates those levels.
In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171 (1998) (HUD), the Authority clarified the sequence of analysis it will use to resolve negotiability disputes where the parties disagree as to whether a proposal comes within the terms of section 7106(a) or section 7106(b). Where an agency claims that a proposal affects a management right or rights under section 7106(a), and a union claims that the proposal is within the duty to bargain under section 7106(b)(2) and/or (3), or is electively negotiable under section 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. See also American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA 228, 236 (1999).
Following this sequence, we first address the Agency's claim under section 7106(a)(1). Because the [ v55 p452 ] Union does not dispute the Agency's contention that the proposal affects management's right to direct employees and assign work under section 7106(a)(2)(A) and (B), we find that the proposal affects those rights. See, e.g., National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1178-79 (1991); American Federation of State, County, and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578 (1984) (Department of Justice). The Union does not claim that the proposal constitutes a procedure or an appropriate arrangement within the meaning of section 7106(b)(2) and (3), respectively. Consequently, we turn next to the Union's claim that the proposal concerns matters that are electively negotiable under section 7106(b)(1).
The Agency does not address section 7106(b)(1).
The Union contends that in promulgating its revised regulations, OPM urged agencies to develop their performance appraisal systems in partnership with employee unions. In this regard, the Union asserts that the National Performance Review required that unions be involved in the development of such systems and that Executive Order 12871 (the Executive Order) requires agencies to bargain over permissive subjects of bargaining under section 7106(b)(1).
The Union claims that the Agency has agreed to bargain over section 7106(b)(1) subjects. The Union also claims that, in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995), the Authority held that section 7106(a) of the Statute is subject to section 7106(b)(1) of the Statute. The Union contends that, because the disputed proposal constitutes a section 7106(b)(1) matter, the case precedent cited by the Agency is not dispositive.
In particular, the Union argues, citing the Authority's definitions of those terms, that the proposal constitutes a "method" or "means" of performing work within the meaning of section 7106(b)(1). Specifically, the Union emphasizes that the proposal is a "measure" used to accomplish the Agency's work. In light of the Executive Order and the Agency's agreement to bargain over section 7106(b)(1) subjects, the Union maintains that the Authority should find the proposal to be negotiable.
There are two prongs to the Authority's test used to determine whether a proposal concerns the methods or means of performing work. First, the proposal must concern a "method" or "means" as defined by the Authority. In this regard, the Authority construes the term "method" to refer to how an agency performs its work. See, e.g., General Services Administration and American Federation of Government Employees, Council of GSA Locals, Council 236, 54 FLRA 1582, 1590 n.6 (1998). The term "means" refers to what an agency uses to perform its work. Id. Second, it must be shown that: (1) there is a direct and integral relationship between the particular methods or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the methods or means was adopted. See, e.g., Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412, 420 (1993).
As to the first prong, the Union claims that the proposal concerns the methods and means of performing work as the Authority defines those terms. However, aside from emphasizing that the proposal constitutes a "measure" used for the accomplishment of the Agency's work, the Union does not explain how the proposal is encompassed within the Authority's definition of the terms "methods" and "means." Proposals concerning the number and designation of rating levels do not concern how an agency performs its work or what an agency uses to accomplish its work. Rather, such proposals concern how an agency evaluates the manner in which its employees perform the work to which they have been assigned. The Authority has consistently held that an agency's determinations as to performance standards and rating levels concern the work objectives for employees. See, e.g., Department of Justice, at 580-81; National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 776 (1980), aff'd, 691 F.2d 553 (D.C. Cir. 1982). An agency's determination of the methods and means of performing work, on the other hand, concerns how employees will do their work, and what they will use, to accomplish those objectives. See American Federation of Government Employees, Local 1164 and Social Security Administration, District Office, New Bedford, Massachusetts, 54 FLRA 1327, 1350-52 [ v55 p453 ] (1998) (plan for rotational assignment of claims processing a methods and means of performing work within the meaning of section 7106(b)(1)).
In sum, there is no basis on which to conclude that the proposal in this case concerns the methods and means of performing work. [n10] Consequently, we find that the proposal does not concern a methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. As the proposal impermissibly affects management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, the proposal is outside the duty to bargain and we dismiss the petition for review.
The petition for review is dismissed.
The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (December 2, 1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.
The Agency argued in its statement of position that the petition for review was deficient under section 2424.4 of the Authority's Regulations. The Agency did not identify the particular deficiencies it believed existed. Pursuant to Authority show cause orders, the Union cured the deficiencies that were identified by the Authority under section 2424.4. The matter addressed here pertains to a different dismissal issue.
The portion of the proposed performance appraisal article that pertains to the number of overall performance rating levels is worded as follows:
F. The range of rating for overall performance shall be 1 of the 4 ratings defined below. The rating shall be:
- Unsatisfactory
- Successful
- Highly Successful
- Outstanding
At no time during the processing of this case did the Agency request an opportunity to file a supplemental submission addressing the differences in the proposals.
The difference in the terms used in the two versions of the proposal has no bearing on the negotiability issues presented and does not need to be addressed further. In the context of the proposal, the terms "measurement" and "range" both refer to the scale by which employees' overall performance will be assessed. See Webster's Third International Dictionary (Unabridged).
After the parties had completed briefing the negotiability of the proposal in this case, the Authority issued a second show cause order requiring the Union to demonstrate that the petition for review was timely filed. Subsequently, the Authority dismissed the appeal. The Union challenged that dismissal in the United States Court of Appeals for the Ninth Circuit, American Federation of Government Employees, Council of GSA Locals, Council 236, AFL-CIO v. FLRA and GSA, Case No. 97-1258 (9th Cir. filed Oct. 21, 1997). The Authority subsequently rescinded the dismissal and reopened the case. The Union's court appeal was dismissed pursuant to the parties' motion for voluntary dismissal. Order, February 3, 1998.
Authority case law does not draw a distinction based on whether the union modifies the proposal before or after filing its petition for review.
Hereinafter, references to the "proposal" will mean only the first two sentences.
Prior to OPM's revision of its performance regulations, 5 C.F.R. § 430.204(h) (1994) required appraisal systems to have "at least three and not more than five summary rating levels[,]" including an "Unacceptable" level, a "Fully Successful" level, and an "Outstanding" level. OPM's revised regulations, 5 C.F.R. § 430.208(d) (1998), provide that an appraisal program may use one of eight acceptable patterns of summary ratings.
Consistent with this determination, it is not necessary to assess whether the proposal would satisfy the second prong of the Authority's test. The Authority has noted that its current test for determining whether a proposal concerns methods and means within the meaning of section 7106(b)(1) may no longer be appropriate in cases where the union, rather than the agency, contends that the proposal concerns methods and means. See National Federation of Federal Employees, Local 7 and U.S. Department of Agriculture, Office of Rural Development, Portland, Oregon, 53 FLRA 1435, 1438 n.3 (1998) (NFFE Local 7) (Authority stated that it would leave for an appropriate case or other proceeding an examination of the issues concerning the continued viability of this test). As in NFFE Local 7, neither party in the instant proceeding has requested that the Authority reconsider its current test used to determine whether a proposal concerns the methods and means of performing work.