Number 137                    September 2000

COURT DECISIONS  |   FLRA    |   MSPB

American Federation of Government Employees, Local 225 and Department of the Army, Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, September 25, 2000, 56 FLRA No. 115.

Proposals establishing the levels of performance needed to achieve a particular summary rating excessively interfere with the right to direct employees and assign work. Moreover, "even if the parties bargained over the formula in the past, there is no basis to conclude that such previous bargaining renders future bargaining mandatory."

When the agency announced its decision to increase, via regulation, requirements that senior system employees needed to achieve Level 1 and 2 ratings, the union proposed that either the agency continue to apply the formula established by its 1993 regulation or return to a pre-1993 formula. When the agency contended that the union's proposals established a specific rating formula and consequently conflicted with its rights to direct employees and assign work, the union filed a negotiability appeal. In agreeing with the agency, FLRA said the following:

The proposals here would prohibit the Agency from changing the 1993 regulations to establish new overall performance rating formulas. As such, the proposals would establish the formulas for employees' overall performance ratings by requiring the Agency to either continue to apply the 1993 regulation or return to the pre-1993 formula. As the proposals would establish the particular levels of performance required to achieve a particular summary rating for overall performance, they affect management's rights to direct employees and assign work. [38 FLRA No. 46, cited.]

FLRA rejected the union's claim that the proposals constituted negotiable section 7106(b)(2) procedures because it failed to state, as required by 5 CFR 2424.25(c)(1)(ii), arguments and authorities supporting such a claim.

Nor were the proposals section 7106(b)(3) appropriate arrangements. In this connection, FLRA found it unnecessary to determine whether the proposals constituted sufficiently tailored arrangements. For even if it were assumed that the proposals constituted arrangements, they were outside the duty to bargain because they excessively interfered with the rights to direct employees and assign work. In reaching this conclusion, the Authority, citing 42 FLRA No. 78, #30, said the following:

The proposals would benefit employees by precluding the reduction in performance ratings--and awards based on the ratings--that would otherwise result from implementation of the Agency-proposed regulation. While this is a clear benefit, we note that implementation of the Agency-proposed regulation would not result in employees losing their status relative to each other and, as a result, employees' promotion potential and RIF retention status would not suffer from the Agency-proposed regulation.

With regard to the burdens on management, the Union's proposals would completely preclude the Agency from exercising its right to revise performance rating formulas. [Footnote 7, inserted here, reads in part as follows: "We reject the Union's assertion that the Agency would not be precluded from changing the 1993 regulation. . . . If the Union did not agree to bargain over changes, then the Agency would be precluded from changing the 1993 formula."] In particular, the proposals would require the Agency to indefinitely apply either the performance formula that was in effect in 1993, or the pre-1933 formula, even though circumstances may have rendered those formulas irrelevant or obsolete. Thus, the proposals would place a significant burden on management.

In finding that the proposals excessively interfered with the rights to direct employees and assign work, FLRA focused on the fact that the agency-proposed performance requirements (which presumably would reduce performance ratings "and awards based on the ratings") would nonetheless "not result in employees losing their status relative to each other and, as a result, employees' promotion potential and RIF retention status would not suffer from the Agency-proposed regulation." In arguing that performance rating formulas excessively interfere with management's rights, agencies should keep these observations by FLRA on employees not "losing their status relative to each other" in mind.

We are somewhat puzzled by FLRA's remark in footnote 7--in apparent response to the rejected union claim that agency agreement with the union's proposals would not preclude it from revising the performance rating formulas--that "[i]f the Union did not agree to bargain over changes, then the Agency would be precluded from changing the 1993 formula." Such a statement presupposes that the agreed to proposals are either mandatory (e.g., a section 7106(b)(3) "appropriate arrangement") or permissive (e.g., a section 7106(b)(1) staffing pattern) proposals. But FLRA found that the proposals at issue were, in effect, prohibited subjects of bargaining because they excessively interfered with management's rights. Is FLRA suggesting that it regards contract provisions that interfere with one or more management rights as enforceable "appropriate arrangements" if they have survived agency head review of the contract? If so, it should say so explicitly, rather than leave it to be inferred.

We are also puzzled at its citation of 56 FLRA No. 40 "(prior bargaining over permissive subjects does not make mandatory future bargaining over those subjects)" in support of its assertion that "even if the parties bargained over the [performance rating] formula in the past, there is no basis to conclude that such previous bargaining renders future bargaining mandatory." How does a doctrine relating to bargaining over permissive subjects relate to doctrine concerning prohibited subjects of bargaining? Even assuming that a particular performance rating formula qualified as an appropriate arrangement, the reference to prior bargaining over permissive subjects still would be inapposite, as proposals that constitute appropriate arrangements are mandatory, not permissive, subjects of bargaining.