[Federal Register Volume 65, Number 50 (Tuesday, March 14, 2000)]
[Notices]
[Pages 13763-13765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6211]
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FEDERAL LABOR RELATIONS AUTHORITY
[FLRA Docket No. 0-NG-2353]
Notice of Opportunity To Submit Amici Curiae Briefs in a
Negotiability Proceeding Pending Before the Federal Labor Relations
Authority
AGENCY: Federal Labor Relations Authority.
ACTION: Notice of the opportunity to file briefs as amici curiae in a
proceeding before the Federal Labor Relations Authority in which the
Authority has been asked to reconsider how management's statutory
rights to direct employees and to assign work should be interpreted in
relation to proposals that establish the number of performance rating
levels for individual job elements and summary ratings.
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SUMMARY: The Federal Labor Relations Authority is providing an
opportunity for all interested parties to file briefs as amici curiae
on significant issues arising in a case pending before the Authority.
The Authority is considering the case pursuant to its responsibilities
under the Federal Service Labor-Management Relations Statute, 5 U.S.C.
7101-7135 (the Statute) and its regulations set forth at 5 CFR part
2424. The issue concerns how management's rights to direct employees
and assign work under section 7106(a)(2)(A) and (B) of the Statute
should be interpreted in relation to proposals that establish the
number of performance rating levels for individual job elements and
summary ratings.
DATES: Briefs submitted in response to this notice will be considered
if received by mail or by personal or commercial delivery in the
Authority's Office of Case Control by 5 p.m. on April 13, 2000. Placing
submissions in the mail by this deadline will not be sufficient.
Extensions of time to submit briefs will not be granted.
FORMAT: All briefs shall be captioned ``National Association of
Government Employees, Local R3-10 and U.S. Department of
Transportation, Federal Aviation Administration, Washington, D.C., Case
No. NG-2353.'' Briefs must contain separate, numbered topic headings
corresponding to the four questions at the end of this notice. Parties
must submit an original and four copies of each amicus brief, on 8\1/2\
by 11 inch paper. Briefs must include a signed and dated statement of
service that complies with the Authority's regulations showing service
of one copy of the brief on all counsel of record or other designated
representatives. 5 CFR 2429.27(a) and (c). The designated
representatives are:
George L. Reaves, Jr., Union Representative, National Association of
Government Employees, 36 Wine Street, Hampton, VA 23669;
Ron Frampton, Agency Representative, Federal Aviation Administration,
800 Independence Ave., SW, AHR-12, Washington, DC 20591.
ADDRESSES: Mail or deliver briefs to Peter Constantine, Director, Case
Control Office, Federal Labor Relations Authority, 607 14th Street, NW,
Room 415, Washington, DC 20424-0001.
FOR FURTHER INFORMATION CONTACT: Peter Constantine, Director, Case
Control Office, Federal Labor Relations Authority, (202) 482-6540.
SUPPLEMENTARY INFORMATION: The case presenting the issues on which
amicus briefs are being solicited is before the Authority on a petition
for review of negotiability issues filed by the National Association of
Government Employees, Local R3-10 (NAGE/Union) under section
7105(a)(2)(E) of the Statute. The Union requests that the Authority
reconsider its precedent that proposals that establish the number of
rating levels for individual performance elements and for summary
performance ratings violate management's rights to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute and are
outside the duty to bargain. To assist interested persons in
responding, the Authority offers the following background on the case,
summary of the relevant precedent, and questions on which amicus views
are being sought.
A. Background
The negotiability dispute in this case arose in the context of the
parties' negotiations for an initial collective bargaining agreement
that would cover a unit of the Federal Aviation Administration's (FAA/
Agency's) Air Traffic Assistants. The Agency and the Union executed a
Memorandum of Understanding (MOU) which served as an interim supplement
to FAA Order 3500.7 regarding its Performance Management System.
The Agency established a new Performance Planning and Recognition
System that recognized two rating levels of performance for individual
job elements and summary ratings. In response, the Union submitted two
proposals that specified three rating levels for individual job
elements and summary ratings consistent with the former system and the
parties' MOU. The Union filed a petition for review of negotiability
issues with the Authority after the Agency declared these proposals
nonnegotiable.
During the parties' negotiations, Congress enacted two pieces of
legislation that are relevant to the Agency's personnel management
activities. First, in November 1995, Congress enacted the Department of
Transportation and Related Agencies Appropriation Act of 1996, Pub. L.
No. 104-50, Title III, section 347, 109 Stat. 460 (1995), as amended by
Pub. L. 104-
[[Page 13764]]
122, 110 Stat. 876 (1996) (codified at 49 U.S.C. 106 note)
(Transportation Act) which gave the FAA Administrator broad discretion
to institute a new personnel management system for the FAA. Section
347(a) of the Transportation Act provides that--
notwithstanding the provisions of title 5, United States Code, and
other Federal personnel laws, the Administrator of the [FAA] shall
develop and implement * * * a personnel management system for the
[FAA]. * * *
Section 347(b), as amended, made the Statute applicable to the new
personnel management system instituted by the FAA, providing, in
pertinent part, that--
[t]he provisions of title 5, United States Code, shall not apply to
the new personnel management system developed and implemented
pursuant to subsection (a), with the exception of * * * (3) chapter
71, relating to labor-management relations.
Second, in early October 1996, Congress enacted the Air Traffic
Management System Performance Improvement Act of 1996, Pub. L. No. 104-
264, Title II, 110 Stat. 3213 (1996) (Improvement Act) at about the
time the Union filed its petition for review with the Authority.
Section 253 of the Improvement Act amended 49 U.S.C. Chapter 401 by
adding section 40122. New section 40122(a) addresses the FAA's
bargaining responsibilities with respect to ``developments'' or
``changes'' to the new personnel management system. Section 40122(a)
provides in pertinent part--
(1) CONSULTATION AND NEGOTIATION. In developing and making
changes to the personnel management system initially implemented by
the Administrator of the [FAA] on April 1, 1996, the Administrator
shall negotiate with the exclusive bargaining representatives of
employees of the [FAA] certified under section 7111 of title 5 and
consult with other employees of the [FAA].
B. Summary of Selected Cases
The parties' submissions in the case before the Authority reference
and rely on a number of Authority decisions. Some of these decisions
are summarized below. This is not intended as a complete description of
Authority precedent in this area, and amici are encouraged to address
any precedent deemed applicable.
In National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980) (BPD), aff'd sub
nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982) (NTEU I), the
Authority held that management's rights to assign work and direct
employees encompassed the identification of critical elements and the
establishment of job requirements in performance standards for such
elements. The Authority reasoned, in line with the then relevant Office
of Personnel Management (OPM) regulations, that the establishment of
critical elements and performance standards are ``among the ways in
which management supervises and determines the quality, quantity, and
timeliness of work required of employees.'' Id. at 776.
In affirming BPD, the D.C. Circuit ruled that ``the right to
determine what work will be done, and by whom and when it will be done,
is at the very core of successful management of the * * * public
service operations of a federal agency[,]'' and that this right is
crucial to management achieving optimum productivity and effectiveness.
NTEU I, 691 F.2d at 563.
In NTEU and U.S. Nuclear Regulatory Commission, 13 FLRA 325 (1983)
(NRC), the Authority held that the right to assign work and to direct
employees included the right to identify non-critical elements and to
establish performance standards for all rating levels, which
``management will use to encourage and reward successful performance as
well as to discourage performance which is unacceptable.'' Id. at 328.
Relying on BPD, NRC and NTEU I, the Authority, in AFSCME, Council
26 and U.S. Department of Justice, 13 FLRA 578 (1984) (DOJ), found that
the number of performance levels for individual job elements and
summary ratings were ``essential aspects'' of management's rights to
assign work and to direct employees. Id. at 580. In doing so, the
Authority relied upon the relationship of the number of levels to the
setting of performance standards and to the establishment of rewards
and sanctions for performance, which have been viewed as related to the
identified management rights. The Authority noted that ``[i]n short,
the number of such levels is integrally related to the effectiveness of
an agency's using performance standards to accomplish the work of the
agency in a manner consistent with the exigencies of effective
government.'' Id. at 581.
Relying on DOJ's analytical framework, in National Treasury
Employees Union and Internal Revenue Service, 14 FLRA 463 (1984) (IRS)
(proposal 5)(Member Haughton dissenting), vacated sub nom. NTEU v.
FLRA, 793 F.2d 371 (D.C. Cir. 1986) (NTEU II), the Authority held that
management's rights to assign work and direct employees involve
establishing rewards and sanctions for employee performance, including
the use of incentives for superior performance to ``accomplish [the
agency's] work in a manner consistent with the exigencies of effective
government.'' IRS, 14 FLRA at 470.
The D.C. Circuit in NTEU II overruled the Authority, and held that
the level of incentive pay for ``work that has been ``assigned'' or
``directed'' does not come within the nonbargainable management rights
to assign work and direct employees.'' NTEU II, 793 F.2d at 375. The
court ruled that the terms ``assign work'' and ``direct employees''
represent precise, defined management activity and were not meant to be
so expansive as to include whatever is useful for getting the agency's
work done. The court concluded that the Authority's reasoning, that
incentive pay affected management's rights since incentives affected
the priorities for accomplishing the agency's work, demonstrated a
familiar defect in statutory construction of improperly substituting
the ends for the means. Then Judge Scalia suggested that if this
approach were allowed, it would be difficult to imagine any proposal
concerning terms and conditions of work that would remain within the
duty to bargain. See id. at 374-75.
In National Treasury Employees Union and Internal Revenue Service,
27 FLRA 132 (1987), the Authority adopted the court's holding in NTEU
II, that management rights do not encompass the right to determine
rewards for performance, and has consistently applied it to proposals
concerning incentive awards. See, e.g., National Association of
Government Employees, Local R1-144, Federal Union of Scientists and
Engineers and U.S. Department of the Navy, Naval Underwater Systems
Center, Newport, Rhode Island, 38 FLRA 456 (1990) (U.S. Navy) decision
on remand as to other matters, 43 FLRA 47 (1991). However, the
Authority has not discussed or applied the court's rationale in NTEU II
in cases involving the number of performance rating levels.
A. Questions on Which Briefs Are Solicited
The Authority directed the parties in the instant case to file
briefs addressing the following questions:
1. Notwithstanding current precedent, does the specification of the
number of performance rating levels affect management's rights to
direct employees and assign work? If so, how and why? If not, how is
the analysis of DOJ incorrect?
2. In NTEU II, the D.C. Circuit rejected the Authority's
determination in IRS that proposals establishing a system of
[[Page 13765]]
rewards and sanctions for employee performance affected management's
rights to direct employees and assign work under section 7106(a)(2)(A)
and (B) of the Statute. What application, if any, does the court's
rejection of this determination have on whether the specification of
the number of rating levels affects management's rights to direct
employees and assign work?
3. In 1995, OPM deregulated performance management to give agencies
greater flexibility. Is OPM's deregulation of performance management
relevant to the determination of whether the specification of the
number of rating levels affects management's rights to direct employees
and assign work?
4. Under section 347(b) of the Transportation Act, the FAA's
personnel management system is exempted from substantially all of title
5 of the U.S.C. and implementing regulations. Does this exemption
prevent the Authority from addressing in this case the general question
of whether the specification of the number of rating levels for
individual performance elements and for summary performance ratings
affects management's rights to direct employees and assign work under
sections 7106(a)(2)(A) and (B) of the Statute?
As this matter is likely to be of concern to agencies, labor
organizations, and other interested persons, the Authority finds it
appropriate to provide for the filing of amicus briefs addressing these
issues and any other relevant issues that amici want to address.
Dated: March 9, 2000.
For the Authority.
Peter Constantine,
Director of Case Control.
[FR Doc. 00-6211 Filed 3-13-00; 8:45 am]
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