[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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