Number 137                    September 2000

COURT DECISIONS  |   FLRA   |   MSPB

American Federation of Government Employees, Local 1709 and Department of the Air Force, Dover Air Force Base, Dover, Delaware, 0-NG-2523, August 11, 2000, 56 FLRA No. 86.

A proposal precluding the agency from taking disciplinary or performance-based actions based on assessments of performance under the agency's Quality Assessment Program is nonnegotiable because it interferes with the right to discipline. Portions of another proposal, requiring the agency to negotiate acceptable quality levels whenever they are changed, interferes with the rights to direct and assign work. The union's "appropriate arrangement" claims aren't addressed because it failed to supply arguments and authorities supporting such a claim.

The first of two disputed proposals reads as follows: "The Quality Assessment Program (QAAP) will not be used as a basis for disciplinary action nor [is it] intended for performance based action." (The bracketed insert is by FLRA.) FLRA found that this proposal would preclude the agency from taking disciplinary action against an employee based on QAAP assessments or from using information from such assessments to support a disciplinary or performance-based action. As such, the proposal affects management's right to discipline. Regarding the union's claim that the Acceptable Quality Level (AQL) standards used by the QAAP aren't performance standards within the agency's performance appraisal system, FLRA said the following:

[A]ssuming that the Agency's current policy is not to take performance-based action against employees under the QAAP because the AQLs do not constitute performance standards that could be used for performance evaluation under chapter 43, the effect of the proposed preclusion of performance-based discipline would be to incorporate that policy into the parties' agreement.

Proposals that incorporate agency policy concerning the exercise of a management right into a collective bargaining agreement constitute independent contractual limitations on that right. . . . Although Proposal 1 would not prevent management from incorporating the AQLs into its performance appraisal system under chapter 43, if management should choose to do so, negotiation of the prohibition against the use of the QAAP for performance-based actions into the contract would mean that performance standards derived from the AQLs could not be used as the basis of discipline for performance under chapter 43. Consequently, by incorporating the Agency's current policy against performance-based disciplinary actions under chapter 43 into the parties' agreement, the proposal would prevent the Agency from taking such disciplinary actions if it decided to use the AQLs as performance standards under chapter 43. Accordingly, the proposal in this regard affects management's right to discipline employees . . . . [Footnote and citations omitted.]

The first two sentences of the second disputed proposal would require the agency to negotiate AQLs whenever they are changed. FLRA, noting that the rights to direct employees and assign work include the right to establish criteria governing employees' performance of their duties, found that a requirement to negotiate over the substance of changes in the AQLs affected management's rights to direct employees and assign work, "regardless of whether AQLs are performance standards within the meaning of chapter 43[.]"

FLRA refused to address the union's claims that the above proposals are section 7106(b)(3) appropriate arrangements because the union didn't satisfy the requirements of FLRA's regulations—i.e., 5 CFR 2424.25(c)(1), which requires the union to supply arguments and authorities supporting such claims.

The third sentence of the second proposal reads as follows: "The Union recommends a set standard base and a minimum AQL allowance." In its statement of position, the agency indicated that it would withdraw its allegation of nonnegotiability concerning this sentence if it is merely a recommendation that has no binding effect. FLRA, finding that such was the case (and noting in a footnote that FLRA has found that "hortatory" proposals are negotiable), dismissed the petition for review regarding that sentence.