[00:00:01] Speaker 04: Place number 18-1239, National Treasury and Employees Union v. Federal Labor Relations [00:00:47] Speaker 04: Good morning. [00:00:47] Speaker 04: May it please the court, Alice and Giles, for the National Treasury Employees' Union. [00:00:51] Speaker 04: I'd like to reserve five minutes for rebuttal. [00:00:54] Speaker 04: Federal agencies have a general duty to bargain. [00:00:57] Speaker 04: Management rights are a narrow exception to that duty. [00:01:00] Speaker 04: The FLRA wrongly held here that an NTU proposal that the agency keep its prior rating system in place, one that would limit agency ratings to no higher than successful, fell within the management rights to direct employees and assign work. [00:01:15] Speaker 04: The NTU's proposal does not. [00:01:17] Speaker 04: End-use proposal does not affect what work gets done or by whom or when, which is how this court has defined this particular management right. [00:01:27] Speaker 04: End-use proposal only pertains to rating already completed work that's already been assigned employees that have already been directed. [00:01:34] Speaker 04: FLRA's decision is wrong because it overreaches the definition of management rights. [00:01:40] Speaker 04: It is also inconsistent with the congressional intent behind the federal labor management relations statute. [00:01:46] Speaker 04: because Congress meant for management rights to be a narrow exception to the general duty to bargain imposed on the agencies. [00:01:53] Speaker 04: And the FLRA's decision is inconsistent with this court's reasoning in the 1986 case of NTU versus FLRA. [00:02:00] Speaker 04: This court held in that case that a proposal that pertains to superior work, like incentive pay or higher rating, does not implicate the management right to direct employees or assign work. [00:02:12] Speaker 04: The reason this court found there's a difference between proposals that bear on superior work versus proposals that affect substandard work is the statute itself. [00:02:22] Speaker 04: The court recognized that the management rights statute references disciplined employees, removing employees, so Congress meant for those to be included in management rights. [00:02:32] Speaker 04: But there's no comparable language in statute for superior work. [00:02:36] Speaker 04: The court therefore held there's a big difference between [00:02:39] Speaker 04: The stick and the carrot, the stick sanctioning inferior performance is quite different from the carrot rewarding superior performance, which is not a management right. [00:02:48] Speaker 04: And the court emphasized that management rights are supposed to be a, quote, precise, defined activity. [00:02:54] Speaker 04: The FLRA's reading here was overly broad. [00:02:58] Speaker 04: Now, the government will argue that the FLRA has already ruled on the negotiability of multiple rating level proposals. [00:03:04] Speaker 04: Those cases are distinguishable in a very key respect. [00:03:08] Speaker 04: In a few, the union didn't actually even tee up the management rights issue. [00:03:13] Speaker 04: But they all involve the union attempting to restrict ratings for inferior performance. [00:03:17] Speaker 04: And under this court's reasoning in 1986, that's a key difference. [00:03:21] Speaker 02: Of course, this court... In Section 4302, it provides that there shall be, shall be, for each agency, performance appraisal systems that include [00:03:37] Speaker 02: produce results that can be used for rewarding and promoting employees, not just training, reassigning, firing, discharging, any of those things, but for rewarding and promoting. [00:03:55] Speaker 02: Shouldn't that inform what's included within management rights under 7305? [00:04:03] Speaker 04: So I think the court in the 1986 state case did focus on Section 7106 rather than 4302. [00:04:08] Speaker 04: But again, we're not going to affect the agency's ability to have some rating system in place. [00:04:15] Speaker 02: The issue is... No, I'm talking about the intersection, sorry, 7106. [00:04:19] Speaker 02: The intersection between that and then the statute, the performance appraisal statute that says 4302. [00:04:27] Speaker 02: So I'm trying to figure out the intersection between 7106 management rights and 4302. [00:04:33] Speaker 02: or specifically envisions performance appraisal systems that include results that will inform rewarding and promoting employees. [00:04:45] Speaker 04: I think the issue today is what is a management right, and that's defined in 71-06. [00:04:49] Speaker 04: You're correct that there are statutes and, of course, plenty of regulations on many, many things. [00:04:54] Speaker 02: No, but I guess you seem to – your argument seems to assume that performance appraisal systems that provide results that allow for training, reassigning, reducing in grade, retaining or removing employees. [00:05:10] Speaker 02: successful are within management rights. [00:05:14] Speaker 02: Correct? [00:05:15] Speaker 02: Correct. [00:05:15] Speaker 02: Okay. [00:05:15] Speaker 02: And the two other things on that exact same statutory list, the exact same one, rewarding and promoting, that I left out just now, they're on the exact same list. [00:05:26] Speaker 02: And so I don't understand how they wouldn't also be part of the management rights. [00:05:31] Speaker 02: You're reading 7106 or 4302? [00:05:32] Speaker 02: I'm reading 4302, and you just agreed that to the extent performance standards are used, the results of those are used for everything else in 4302A3. [00:05:44] Speaker 02: That is training, reassigning, reducing in grade, retaining or removing employees, that that's part of management rights, that there's an intersection between these things. [00:05:55] Speaker 04: I think the issue for the court is 7106, though. [00:05:57] Speaker 04: What is that? [00:05:58] Speaker 02: Right. [00:05:58] Speaker 02: I'm trying to figure out how this informs how this provision and your argument, which seems to acknowledge that performance appraisal systems that provide information necessary for everything else on that list are within management rights. [00:06:15] Speaker 02: That's what I was trying to understand. [00:06:16] Speaker 02: I thought you were agreeing that information that allows them to train, reassign, reduce in pay, [00:06:24] Speaker 02: make retention decisions or remove employees, that's within management rights. [00:06:27] Speaker 02: I'm trying to figure out why the other two things on the same list, rewarding and promoting, performance standards that produce that information wouldn't just as much be on. [00:06:36] Speaker 02: in the management rights list. [00:06:38] Speaker 02: Because I think it's a different statute. [00:06:40] Speaker 04: We're looking at 7106. [00:06:41] Speaker 04: What did Congress mean for management rights? [00:06:43] Speaker 04: And again, the wisdom of our proposal is not at issue here. [00:06:47] Speaker 04: We just want the right to come to the table. [00:06:48] Speaker 04: We're supposed to be able to talk to the agency about it. [00:06:51] Speaker 02: 7106 wasn't enacted in a vacuum, right? [00:06:53] Speaker 02: This is all part of the government organization statute. [00:06:56] Speaker 02: And this recognition that when we're defining management rights, part of what the agency shall do is have these appraisal systems. [00:07:04] Speaker 02: And these appraisal systems shall provide information [00:07:07] Speaker 02: for promoting, demoting, for assigning, reassigning, for rewarding, for sending for more training, or discharging. [00:07:16] Speaker 04: And agencies are free to, for example, give incentive pay as a method of reward, but this court found that's not enough to bring it within the ambit of what a management right is. [00:07:26] Speaker 04: Agencies can do it, but if we take it off the table, we are going to be left with very little that we can bargain over, because everything has some bearing on getting the agency's work done. [00:07:36] Speaker 04: But management rights under 7106 is supposed to be a precise, defined activity. [00:07:41] Speaker 04: And I submit that the FLRA has been overreaching that. [00:07:45] Speaker 05: You seem to argue in your opening statements that the 1986 case held in support of your position. [00:07:56] Speaker 05: That's not the way I read the decision. [00:07:58] Speaker 05: I thought they reserved it. [00:08:00] Speaker 04: Yeah, I would say its reasoning supports our analysis. [00:08:02] Speaker 04: It certainly wasn't incentive. [00:08:03] Speaker 05: It was a big difference. [00:08:04] Speaker 05: They certainly, I mean, and the problem here [00:08:06] Speaker 05: You're in an interesting line, as you understand. [00:08:08] Speaker 05: 1986 is at best there to be looked at. [00:08:15] Speaker 05: It's not a holding in your favor. [00:08:18] Speaker 05: And there's a long line of agency authority, which you understand is against your position. [00:08:25] Speaker 05: And in agency review, what is the Court of Appeals supposed to do in that situation where the agency has a long line of authority against you [00:08:36] Speaker 05: It stands. [00:08:39] Speaker 05: It's certainly not unreasonable. [00:08:43] Speaker 05: You can make the argument both ways as to which way you should look at this on the performance standard side, on the incentive pay side. [00:08:51] Speaker 05: But the agency's position plausibly suggests that it should be on the performance standard side. [00:08:56] Speaker 05: And they have a lot of authority supporting it, unchallenged for years and years and years. [00:09:01] Speaker 05: And the one case you want us to reach back to and build up on [00:09:06] Speaker 05: does not say what you want it to say. [00:09:09] Speaker 05: The court scrupulously says we're not reaching that question, which again suggests to me that they too understand you can go exactly the way the agency's been going. [00:09:19] Speaker 04: Two points. [00:09:19] Speaker 04: On the incentive pay proposal, I would remind the court that when this court in 1986 reversed the FLRA, that lower FLRA decision in analyzing the incentive pay proposal, specifically looked to cases involving multiple rating level proposals and said, [00:09:33] Speaker 04: These are substantially similar. [00:09:34] Speaker 05: No, no, there's no question that the agency tried to make the connection. [00:09:39] Speaker 05: The court said, no, not with respect to incentive, but we're not going to decide the question you're now bringing to the court. [00:09:47] Speaker 05: Yes, the court undercut part of the agency's argument, but they did not say that the agency's argument was wrong with respect to what we're talking about now. [00:09:58] Speaker 04: That is certainly true. [00:09:59] Speaker 04: I just wanted to emphasize that I think the 1986 case does bear strongly on this case. [00:10:04] Speaker 04: Of course, it does not dictate the result. [00:10:07] Speaker 04: But the FLRA decisions on this field, first of all, they mostly just wrotely repeat what they initially wrote in the AFSCME case. [00:10:14] Speaker 04: And I think it is important to think they didn't address the specific proposal we have here today. [00:10:19] Speaker 04: The agency itself, in its intervenor brief, acknowledges that the authority's cases are a little different than what we have here today. [00:10:25] Speaker 04: They say in their intervenor brief on page 14, quote, [00:10:28] Speaker 04: The authority's decisions do not specifically address a proposal that retains a pass-fail system but allows an agency to create multiple levels of failure. [00:10:37] Speaker 04: That's what we have today, so I would submit that the proposal issued today is different from the previous FLRA decisions in this area. [00:10:44] Speaker 03: If your position is that you would like us to essentially overrule or turn back years of FLRA decisions, what's your best argument [00:10:55] Speaker 03: under the statutory scheme? [00:10:56] Speaker 03: Are you suggesting that it's inconsistent with the statutes? [00:10:59] Speaker 03: It might be somewhat inconsistent with our 1986 decision. [00:11:02] Speaker 03: I mean, what's your argument for overruling those years of precedence? [00:11:07] Speaker 04: I would say you don't have to overrule that, Laurie. [00:11:09] Speaker 04: Of course, you can. [00:11:10] Speaker 04: But I would say that you can distinguish those cases. [00:11:12] Speaker 04: And the two arguments are the language of the statute. [00:11:14] Speaker 04: There are a lot of verbs in the management rights statute. [00:11:17] Speaker 04: And evaluating the ratings are not there. [00:11:19] Speaker 04: So whether they squeeze under the assigning work or directing employees, [00:11:23] Speaker 04: But we come back to common sense. [00:11:25] Speaker 04: Assigning work is what work to be assigned to which employees and when. [00:11:29] Speaker 04: And our proposal doesn't address that. [00:11:30] Speaker 03: What about the related statutory provisions that Judge Mollett cites? [00:11:35] Speaker 03: Looking at a range of different statutory provisions together, doesn't that still support FLRA's position? [00:11:42] Speaker 04: Well, the agencies are allowed under many statutes and regulations a whole, a broad swath of activities in terms of [00:11:50] Speaker 04: consent to pay rifts, it covers lots of things, but whether they are allowed to take it off the bargaining table entirely, I think we need to focus on 7106, the management rights statute. [00:12:06] Speaker 02: Even if they have, as the FLRA found here, the authority to establish higher level of ratings, would you not still retain your ability [00:12:17] Speaker 02: under the 1986 case to negotiate about how those ratings, when someone gets that ratings, how that informs whether they get incentive pay, bonuses, those types of things. [00:12:29] Speaker 02: You would still retain that ability to negotiate, but the consequences other than work assignment, what the reward for those ratings are, would you? [00:12:40] Speaker 04: I'm sorry, if the proposal stays in place and it's more or less a pass-fail, would we still be able to bargain? [00:12:46] Speaker 02: I guess what I'm saying is if they were able to have a system that had super successful or outstanding or whatever the thing is over successful and then successful and then the tiers that you acknowledge underneath that. [00:13:00] Speaker 02: But it included something higher than just successful. [00:13:05] Speaker 02: And they said they're using that to help decide who gets what work. [00:13:10] Speaker 02: But you would still have the ability to negotiate incentive pay, whether that's someone with bonuses, for that higher rating that someone accomplished, would you not? [00:13:22] Speaker 02: I assume you would insist you still have that. [00:13:25] Speaker 04: Just because you could bargain over a few other ways of rewarding superior performance, I don't think means that we should be allowed to not bargain, remove the bargaining table for this kind of performance. [00:13:34] Speaker 02: I understand that argument. [00:13:35] Speaker 02: I just wanted to make sure that I wasn't missing, that there was some overlap or consequence [00:13:40] Speaker 02: would then deprive you of the ability to negotiate bonuses and incentive pays for higher ratings. [00:13:45] Speaker 02: I think that's right. [00:13:47] Speaker 02: And can I ask you, my understanding is that, I saw somewhere in the briefs, that negotiations are concluded. [00:13:53] Speaker 02: Do they end up adopting a system that has something higher than successful? [00:13:59] Speaker 04: The pre-existing pass fail system is staying in place while this appeal plays out. [00:14:03] Speaker 04: But I don't think that's in the record and the agency can confirm that. [00:14:06] Speaker 02: But for the time being, the pass fail system is still in place. [00:14:10] Speaker 02: If the FLRA would be sustained, would something happen to place, or would you just go back to the bargaining? [00:14:16] Speaker 02: I'm trying to figure out what the status here is. [00:14:19] Speaker 04: If the FLRA is reversed, which is what we would ask, then we would go back to the bargaining table of our proposal. [00:14:24] Speaker 04: If it's affirmed, then the agency would be free to put their new system into place. [00:14:28] Speaker 02: And that includes something higher than just success. [00:14:31] Speaker 02: What does it have in addition? [00:14:33] Speaker 02: Higher than success. [00:14:33] Speaker 04: Or what it would prefer to do. [00:14:34] Speaker 04: I don't know if it's a four or five level system. [00:14:36] Speaker 04: I think it's a multiple tier rating system. [00:14:38] Speaker 02: Something higher than success. [00:14:39] Speaker 02: Yes. [00:14:41] Speaker 03: That's just one other question. [00:14:42] Speaker 03: You suggested focusing on 7106. [00:14:45] Speaker 03: I'm wondering, what do you make of 7106 A to C, the provision about with respect to filling positions, management has the right to make selections for appointments from among properly ranked and certified candidates? [00:15:01] Speaker 03: How does that relate to this type of ranking system where management may want to distinguish how successful [00:15:11] Speaker 03: a person has been in order to fill positions in the future. [00:15:15] Speaker 04: Those management rights aren't an issue in this case. [00:15:17] Speaker 04: They weren't raised below. [00:15:18] Speaker 04: If you look at joint appendix 72 and 73, only two were raised and briefed below, and only those two were addressed by the authority. [00:15:28] Speaker 02: But at the end of the day, if they can, in the 1986 decision, drop that footnote that suggested there were other provisions that would allow having a higher, a system that would have a type of [00:15:39] Speaker 02: Well, of course, there's more positive ratings. [00:15:43] Speaker 04: There are a lot of cases on all those management rights, and we haven't briefed them, and I can't say I'm prepared to address all the cases on all the other management rights, but I think under 5, USC 7123, we are limited today to the two that were presented below. [00:15:58] Speaker 04: If you have any more questions for the moment, I'll reserve some. [00:16:02] Speaker 04: Thank you. [00:16:10] Speaker 01: Good morning. [00:16:11] Speaker 01: May it please the court, Noah Peters for the FLRA. [00:16:14] Speaker 01: For nearly 40 years, the authority has consistently interpreted the Federal Service Labor Management Relations Statute as permitting agencies to establish, to rate employees as not just a pass fail system, but to rate employees as excellent or outstanding. [00:16:34] Speaker 01: For example, [00:16:35] Speaker 01: As far back as 1983, the authority stated, an agency is not limited to merely prescribing the minimum level of performance which will be required from an employee for job retention. [00:16:48] Speaker 01: Rather, the results of employee performance appraisals are to be used for multiple purposes, i.e. [00:16:53] Speaker 01: as the basis for rewarding and promoting employees, reducing them in grade and retaining or removing them. [00:16:59] Speaker 01: In this regard, Congress explicitly stated its intention that appraisals of performance for all purposes be made within a single interrelated system. [00:17:07] Speaker 01: That is a reference to 5 U.S.C. [00:17:11] Speaker 01: 4302, which states that agencies shall use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees. [00:17:25] Speaker 01: The authority has very reasonably defined the statutory language direct as meaning to supervise and guide employees in their work. [00:17:35] Speaker 01: And it's reasonably interpreted that language as allowing agencies to rate employees not just as on the minimum level needed for job performance to hold their jobs, but also as outstanding employees and as employees that have demonstrated great abilities in the past [00:17:54] Speaker 05: Help me out if you can. [00:17:56] Speaker 05: At first flush for me, there's a clear distinction between an employer having the right, and in the FLRA context, the right with no negotiation obligations to set job standards, performance standards. [00:18:13] Speaker 05: This is what this job is, this is what we require, and everything that goes with that. [00:18:20] Speaker 05: Very different [00:18:21] Speaker 05: from that is the employer having set all the standards, however the employer wants to, assessing how well the employee did, pursuant to those standards. [00:18:33] Speaker 05: I can't find, you'll have to tell me if I'm wrong, I can't find a single case in which the authority has clearly said that within the embrace of direct and assigned, we also include assessing how well you did, [00:18:51] Speaker 05: pursuant to the established standards. [00:18:54] Speaker 05: Where has the authority ever said that? [00:18:55] Speaker 05: They always seem to be referring to direct and assigned, which I understand is not a big deal. [00:19:02] Speaker 01: Right. [00:19:02] Speaker 01: In the Ask Me 1984 decision, I think the language that the authority used, and this is the language that the authority quoted in its decision below, the number of performance levels for both individual job elements and overall performance are essential aspects of the right to assign work and direct employees [00:19:21] Speaker 01: The determination of the number of performance levels directly affects the degree of precision with which management can establish and communicate job requirements, performance standards, the range of judgments which management can make regarding performance in the context of performance appraisals, and the range of rewards and sanctions which management can apply to such performance. [00:19:42] Speaker 05: I still don't get it. [00:19:44] Speaker 05: I really don't. [00:19:45] Speaker 05: I read that language. [00:19:46] Speaker 05: I understand what you're saying. [00:19:48] Speaker 05: But it seems to me there's a striking difference between here are the standards. [00:19:53] Speaker 05: I expect you employees to follow these standards. [00:19:56] Speaker 05: I set them the way we want, and you have to follow. [00:20:00] Speaker 05: Then a different question at another day is, how well did you do? [00:20:04] Speaker 05: And I don't know how assigned and direct has anything to do with my assessment of how well you did. [00:20:12] Speaker 05: uh... well i think that the the so we've got no court decision we declined to reach it nineteen eighty six you know i think in part because it's not self-evident and i think it was self-evident i don't mean to say we would have reached out but it's certainly we wouldn't have put the footnote in as a starter and we might have even gone further and said you know this includes i don't see any case where you hit it dead on well uh... [00:20:40] Speaker 01: I think that the, again, I think that the definition that the authority had of direct in the 1982 NTEU case where it was noted that the authority had defined direct to mean supervising guide employees in their work. [00:20:57] Speaker 01: And I think guiding employees in their work does embrace the right to say, you know, you've done a certain level of performance, you've done perhaps the minimum disciplinary consequences, [00:21:09] Speaker 01: But we would prefer that you do it in this way, or you could have done better in this area, in this area, in this area. [00:21:16] Speaker 01: And I think it also goes to the right to assign work, too, because- Sorry, what you just explained sounded like someone who's not doing 100%. [00:21:24] Speaker 02: They need to do better in this area or that area. [00:21:28] Speaker 02: And the issue here is people who are doing 100%. [00:21:32] Speaker 02: And the question is whether in assigning the work, it matters, or directing the work, that they were doing 125% versus 135, or however you want to quantify these radians. [00:21:45] Speaker 01: Right. [00:21:47] Speaker 01: I don't know that that's... [00:21:50] Speaker 01: You know, I don't know that it's that binary. [00:21:52] Speaker 01: And I think that the 1986 decision, there was a section of it where the union had argued that, well, the right to assign employees and assign work and direct employees was not, it did not include incentive pay because excellent work is not assigned or directed by the agency. [00:22:11] Speaker 01: It said, you know, the idea was that you're assigning or directing the 100%, but you're not assigning or directing 120% [00:22:19] Speaker 01: And the court actually rejected that argument and it said the union acknowledges although no employee can be compelled to push more data keys per month and the number immediately below the incentive pay level, if the employee should happen to reach that number within three weeks, he would not be entitled to take the rest of the month off. [00:22:36] Speaker 01: He would be required to continue working as assigned work, would continue to be the entry of data. [00:22:41] Speaker 01: So it held that 125% work or work above the successful level [00:22:47] Speaker 01: is still within the directing and assigning. [00:22:50] Speaker 02: No, but then the next paragraph is where they said, so because of that, we must confront head on the authority's contention that the management right to assign includes the management right to reward superior performance of what has been assigned. [00:23:04] Speaker 05: Right. [00:23:04] Speaker 05: If anybody lost on the rationale in 1986, you did. [00:23:08] Speaker 05: The union didn't lose it. [00:23:09] Speaker 05: They're trying to buy it. [00:23:11] Speaker 01: Right. [00:23:13] Speaker 01: The issue in the 1986 case was not the carrots versus sticks where sticks are within the management right but carrots are not. [00:23:22] Speaker 01: I think the issue in the 1986 case and the issue that we lost on was that you can bring in incentive pay into the management right because it has the same purpose as assigning and directing. [00:23:34] Speaker 01: And it says, well, incentive pay would tend to encourage employees to do their work so it's within the management right [00:23:41] Speaker 01: And that's where the opinion said that's not a legitimate way to interpret the statute. [00:23:48] Speaker 01: You can't just say everything that's useful to motivating employees. [00:23:51] Speaker 05: But that seems to be your argument here. [00:23:53] Speaker 01: Well, it's different because I think as five USC 4302 makes clear, performance levels above a successful level are not brought within the management right just because they're motivating employees. [00:24:09] Speaker 01: So for example, [00:24:11] Speaker 01: 5 CFR 351.504 states that a level of outstanding is to be counted as 20 years of service for purposes of a RIF. [00:24:22] Speaker 01: So outstanding levels are used for purposes of reductions in board. [00:24:26] Speaker 02: Sure, that's not your argument in this case. [00:24:28] Speaker 02: It can't be. [00:24:28] Speaker 02: You didn't raise that argument below. [00:24:30] Speaker 01: Well, the agency did in its brief. [00:24:33] Speaker 01: Wait, wait, wait. [00:24:35] Speaker 02: The FLRA relied only on a sign and direct. [00:24:39] Speaker 01: Right. [00:24:40] Speaker 01: But I think that that informs the fact that out that I think that's a different management, right? [00:24:46] Speaker 02: You're referencing, correct? [00:24:48] Speaker 01: Uh, yeah. [00:24:48] Speaker 01: But I think it shows that it's the same. [00:24:51] Speaker 01: It informs the interpretation of a siding directly. [00:24:54] Speaker 01: I think it goes along with five USC 43 02. [00:24:58] Speaker 01: It shows that the this is not a case where the authority tried to bring in [00:25:03] Speaker 01: the fours and five grading levels because, well, that's another way to motivate employees so it's within the management right. [00:25:11] Speaker 01: I think what the authority did in this case was it says, this is a core part of the management right because it affects the range of judgment. [00:25:19] Speaker 02: No, they said it's a core part of the management right to assign and direct work. [00:25:23] Speaker 02: Right, that's right. [00:25:24] Speaker 02: Not to address layoffs. [00:25:25] Speaker 01: Right, yeah. [00:25:26] Speaker 02: Okay, so I'm just, I don't want, you're representing the FLRA, they did not rely on any other [00:25:32] Speaker 02: management right, even though the 1986 case said, here's some other things it might be under. [00:25:40] Speaker 02: So you agree you can't rely on that now. [00:25:43] Speaker 01: That's right. [00:25:44] Speaker 01: We agree that we think that a signing director are more than sufficient to say that the number of levels of performance ratings are within the management right. [00:25:55] Speaker 02: You could say... Is rewarding employees within the management right? [00:26:02] Speaker 01: I think that it's within- To assign and direct. [00:26:05] Speaker 02: I'm sorry, only within assign and direct. [00:26:06] Speaker 02: The only one before us is assign and direct. [00:26:08] Speaker 02: Is rewarding employees within assigning and directing. [00:26:12] Speaker 01: Well obviously the import of the 1986 decision is not everything that you do to reward employees within the management right. [00:26:19] Speaker 01: Communicating to an employee what outstanding work is, and communicating the number of performance tiers that they'll be rated on, I think is within the management right, because it gives us the authority to tell us what the better part of work is. [00:26:32] Speaker 02: I'm just communicating information to them. [00:26:33] Speaker 02: I'm just trying to get whether rewarding is part of assigned directing. [00:26:39] Speaker 01: Well, again, it's not everything that you would do to reward an employee. [00:26:48] Speaker 03: Would you say that the proposal here is about rewarding workers? [00:26:53] Speaker 03: I mean, is that how you would characterize it? [00:26:56] Speaker 03: So how would you characterize what CBP is hoping to do? [00:26:59] Speaker 01: I think it's restricting the ways that the agency can guide and direct employees in their work and saying, [00:27:08] Speaker 01: you can rate them as being on a pass fail system, you can create degrees of failure, but you can't rate them, you can't use a performance management system to say this is an outstanding employee or this employee has done outstanding work in the past. [00:27:21] Speaker 01: All you can do is create a gradation that says this is the pass level and this is failure one, this is failure two, this is failure three. [00:27:31] Speaker 03: What is the connection between ratings that are above successful and assigning and directing work? [00:27:38] Speaker 03: Well, I think you can you draw that more? [00:27:41] Speaker 01: Yes. [00:27:42] Speaker 01: So for example, with assigning work, you would want to know if there's a particularly difficult or sensitive task, you would want to know the agency would want to know which employees have done an outstanding job in the past. [00:27:53] Speaker 01: And in order to do that, and again, that goes back to 4302, the performance management system, which says that agencies are entitled to use a single interrelated performance management system to identify which employees are outstanding, which employees might need more training. [00:28:09] Speaker 05: Is that the statutory provision the agency relied on, the FLRA relied on? [00:28:14] Speaker 01: I think that it's 4302 has very much informed it. [00:28:18] Speaker 05: Is that what FLRA relied on in this case? [00:28:21] Speaker 01: Not exclusively, no. [00:28:23] Speaker 01: You didn't rely on it at all? [00:28:24] Speaker 05: Not at all. [00:28:25] Speaker 05: I thought it was a sign indirect. [00:28:27] Speaker 05: It's the only reason it's perplexing to me. [00:28:29] Speaker 05: The argument is a bit perplexing to me. [00:28:31] Speaker 05: A sign indirect is a sign indirect. [00:28:33] Speaker 05: That's what FLRA... I mean, I could understand if you reached out and made it a broader, richer argument, but you didn't. [00:28:39] Speaker 01: Right. [00:28:40] Speaker 01: I think the language that the authority quoted, which is really key to its reasoning, from the AFP-1984 decision [00:28:47] Speaker 01: about the number of performance, the determination of the number of performance levels directly affects the degree of precision with which management can establish and communicate job requirements, the range of judgments which management can make regarding performance and the context of performance appraisals, and the range of rewards and sanctions which management can apply to such performance [00:29:05] Speaker 01: That is, the footnote there is a reference to, if not this statute, if not 4302, then parts of the federal personnel manual that were interpreting this performance management system. [00:29:18] Speaker 01: So I think that the, if you look at the way the authority precedent has developed in the NTU 1983 decision, which explicitly cited 4302, to this language from ASCII 1984, which calls, harkens back clearly to, [00:29:33] Speaker 01: to this statute, which is also part of the Civil Service Reform Act of 1978, I think that 4302 has profoundly influenced the way that the authority of these management rights, and I think that that's apparent in its reasoning in this case. [00:29:47] Speaker 05: There's an underlying assumption here that you're somehow giving away the shop if unions can bargain over this. [00:29:56] Speaker 05: You're not giving away anything. [00:29:57] Speaker 05: All they have is the opportunity to discuss [00:30:00] Speaker 05: how you evaluate employees who are working pursuant to standards that you have a right to establish on your own. [00:30:09] Speaker 05: We understand you established the standards. [00:30:11] Speaker 05: All we want to talk about is how you were set. [00:30:13] Speaker 05: Isn't that exactly what happens in the incentive? [00:30:15] Speaker 05: The incentives aren't automatic. [00:30:18] Speaker 05: Right. [00:30:18] Speaker 05: I'm talking about how the extra pay will come [00:30:24] Speaker 05: And you can make the argument of a sort that you are making here, well, but you know how we set up that incentive system affects how we assign indirect employees. [00:30:35] Speaker 05: Same argument. [00:30:37] Speaker 05: And we said, no, we're not buying that. [00:30:39] Speaker 01: Right. [00:30:39] Speaker 01: Well, I think that [00:30:41] Speaker 01: If you were to rule and say it ruled against us, I think it would seriously curtail the ability for agencies to use the results. [00:30:50] Speaker 01: I mean, there would be ways to evaluate employees as, you know, informally, but they wouldn't be able to use the performance management system as a basis for training reward and reassigning. [00:31:00] Speaker 01: Why? [00:31:00] Speaker 05: It's really bargainable, that's all. [00:31:02] Speaker 05: Right, but you're not giving anything away, you have to lose it and bargain it. [00:31:06] Speaker 05: It's merely bargainable. [00:31:08] Speaker 05: It's whether or not it's a mandatory subject of bargaining. [00:31:11] Speaker 05: It's not whether or not they have a right to anything in particular. [00:31:14] Speaker 05: They gotta bargain about it, that's all. [00:31:16] Speaker 01: Right, but I think that it would cut back at, it would be contrary to the language of 4302 if they were required to bargain, because they would be able to communicate a successful rating, but they wouldn't be able to [00:31:31] Speaker 01: rate of employees is outstanding or excellent. [00:31:34] Speaker 01: Why? [00:31:35] Speaker 05: You don't know, because that would be the object of bargaining. [00:31:38] Speaker 05: That's what you'd figure out in bargaining. [00:31:40] Speaker 05: Merely because this proposal is on the table does not mean it's a zero-sum game. [00:31:44] Speaker 05: It's this proposal or not. [00:31:47] Speaker 05: There are all possibilities in between. [00:31:49] Speaker 05: That's what negotiations are all about. [00:31:50] Speaker 01: Right. [00:31:51] Speaker 01: I think in there, you go back to the language of the 1982 decisions, which say that this is the management rights [00:31:59] Speaker 01: were defined by Congress for reasons so they couldn't be chipped away at it. [00:32:03] Speaker 05: No question. [00:32:05] Speaker 05: And the unions on their side will tell you we have almost no rights to bargain about anything in this sector. [00:32:12] Speaker 05: So they fight over things like this because you're not talking about it very much. [00:32:16] Speaker 05: And so I'm trying to understand. [00:32:18] Speaker 05: It just seems like there's a distinction between your right to establish this is what the job is. [00:32:24] Speaker 05: And we can, we tell you, that's it. [00:32:28] Speaker 05: And the question is whether or not an employee has done it. [00:32:32] Speaker 01: Right. [00:32:32] Speaker 01: And I do want to address briefly, and I know that I'm way out of time, of the idea that management rights are a narrow exception to the otherwise broad duty to bargain. [00:32:43] Speaker 01: That comes from the only case that cited in support of that is the 1989 Overseas Educational Association decision. [00:32:51] Speaker 01: And if you look, that part of the decision was joined only by Judge Robinson. [00:32:54] Speaker 01: It wasn't an opinion for the entire circuit. [00:32:56] Speaker 01: In fact, the other two judges said very clearly they did not agree with that part of the statute that if management rights had been intended to be a narrow exception to otherwise broadening [00:33:07] Speaker 01: bargain, then Congress could have written that into the statute. [00:33:10] Speaker 05: No, I don't think anyone's seriously doubting that the management rights section sweep broadly. [00:33:15] Speaker 05: It does in this sector, in the public sector and federal sector. [00:33:18] Speaker 05: It does. [00:33:18] Speaker 05: The question is how broadly? [00:33:20] Speaker 02: And your reliance on 4302 is a little hard because it uses the word reward and that's the word that was used in our 1986 decision to say rewarding is exactly what you have to negotiate over. [00:33:34] Speaker 01: Yeah, I would suggest the distinction though between saying, so this is using, this talks about using the results of performance appraisals as a basis for training, rewarding, reassigning. [00:33:45] Speaker 01: I think that more strongly indicates that agencies can establish fours and fives in the performance management system than it suggests that they have an unfettered right to provide incentive pay for employees, even if the incentive pay happens to be based on their performance appraisals. [00:34:02] Speaker 01: And again, in the proposal in the 1986 decision, I don't think it was clear. [00:34:06] Speaker 02: I'm just confused. [00:34:07] Speaker 02: What is this rewarding here? [00:34:09] Speaker 02: Is that rewarding of 4302A3? [00:34:12] Speaker 02: Right. [00:34:14] Speaker 01: That's right. [00:34:15] Speaker 02: Is that a management right or not? [00:34:18] Speaker 01: Again, it's not a specific management right. [00:34:22] Speaker 01: I think it just indicates that. [00:34:24] Speaker 02: So the fact that it's in 4302 doesn't make it a management right? [00:34:27] Speaker 01: No, but I think it's something that you interpret 4302 as consistent with the management rights to direct and assign employees. [00:34:35] Speaker 01: And I don't think that that necessarily means that they have the basis to do anything that can be construed as training employees, that they can do anything [00:34:45] Speaker 01: to reward employees or reassign or promote employees and that's all. [00:34:49] Speaker 02: Is it a reward to get because of your outstanding evaluation that you get the best projects to work on, the ones that will put you in line to get incentive pay and bonuses, the ones that will get the attention of management, the most important ones? [00:35:09] Speaker 01: when you're talking about the judgments that management can make and communicate to employees, that falls within the management right? [00:35:15] Speaker 02: That's what we're trying to debate here is whether you're over successful. [00:35:19] Speaker 02: So what I'm trying to understand is just at a human level is because I did, I got outstanding or excellent, whichever is higher, I get all the plum assignments. [00:35:32] Speaker 02: And those becomes a cycle because I do the plum assignments and the most important ones, then I get more awards, and then I get to do more of them. [00:35:41] Speaker 02: It sounds like a reward to me. [00:35:44] Speaker 01: Right. [00:35:44] Speaker 01: I think that this language has to be seen in the context of just performance appraisals and the range of judgments that management can make based on performance appraisals. [00:35:53] Speaker 01: I don't think that this language is written into the management rights provision, or it says anything that we do, this creates an unfettered right to give incentive pay. [00:36:04] Speaker 02: I'm just trying to figure out how saying you went above and beyond, you get extra special work, is distinct from giving you [00:36:16] Speaker 02: Special assignments. [00:36:18] Speaker 02: So we're not talking about the layout protection here. [00:36:20] Speaker 02: We don't have that in front of us. [00:36:21] Speaker 02: Special assignments is what I heard you say. [00:36:23] Speaker 02: That's part of the assigning work. [00:36:25] Speaker 02: You get the special stuff because presumably you're going to give the good stuff to your best employees. [00:36:30] Speaker 02: But that's not a system of rewards? [00:36:33] Speaker 01: No. [00:36:33] Speaker 01: I mean, because those could be also the most. [00:36:36] Speaker 01: What I was thinking about when I was saying that was not giving employees who've done great work the plum, like pushy assignments. [00:36:43] Speaker 01: I was saying if there's a particularly difficult task that requires a high degree of skill, then management might want to use the results of its performance management system [00:36:52] Speaker 01: to identify who the truly outstanding employees are who could be counted upon to do something extremely difficult or extremely sensitive. [00:37:03] Speaker 02: I wasn't saying... Yeah, but those again are going to be the ones who will then get the most attention from management. [00:37:08] Speaker 02: be most likely to get the incentive, I was in the government a long time, those are the ones that get the incentive pay and the bonus awards because they worked on the special most important hardest case. [00:37:20] Speaker 01: Right, but again, the consequences that flow from management's recognition of somebody as being a five on the performance management system, I think that's something that can be bargainable, but management's right to make the determination this employee has done a five job [00:37:37] Speaker 01: I think that's within the management rights of direct employees and assigned work. [00:37:40] Speaker 01: I think we've been, you know, the authority's precedent has been very consistent on that for a better part of 40 years. [00:37:45] Speaker 01: So with that, since I'm way over time, I'll submit. [00:37:49] Speaker 01: Thank you. [00:37:59] Speaker 00: May it please the court, Melissa Patterson for the Department of Homeland Security. [00:38:02] Speaker 00: I think it might be helpful to start with Judge Rao's question [00:38:06] Speaker 00: Is this proposal going to how the agency can reward employees? [00:38:12] Speaker 00: And we don't think it is at all. [00:38:14] Speaker 00: We think a long line of FLRA cases suggests that that is not what performance appraisal systems are about. [00:38:20] Speaker 00: We certainly know what they're only about. [00:38:22] Speaker 00: When an agency sets out these evaluation standards, what it's saying is not just on the back end how well you did. [00:38:30] Speaker 00: It's saying, here's how well you should do your job. [00:38:34] Speaker 00: Now I think everybody's in agreement, and it follows directly from this court's decisions in 1982, that the agency is free to communicate with a lot of specificity. [00:38:45] Speaker 00: Here's how not to do your job. [00:38:47] Speaker 00: Here are various buckets of unacceptable ways to do your job. [00:38:51] Speaker 00: And so the only question is, does the agency have the same freedom to communicate to employees all of the good ways [00:39:00] Speaker 00: to do your job. [00:39:01] Speaker 00: And I think that's what the FLRA has long recognized with its decision here and stretching back to 1983, that what you're talking about is the degree of precision that the agency can use in communicating to employees how to carry out their duties. [00:39:18] Speaker 00: Now I think there was some suggestion in the reply brief that the only thing before the court was that sort of that flat number of rating levels available to the agency. [00:39:29] Speaker 00: And that is not correct, because at base, what they want is a content distinction. [00:39:34] Speaker 00: However many levels they are, they don't want any of the levels to be able to distinguish between merely passing. [00:39:41] Speaker 02: Not merely passing. [00:39:42] Speaker 02: That's successful. [00:39:43] Speaker 02: That's exactly what the job is. [00:39:44] Speaker 02: Your argument makes perfect sense until I read our 1986 decision, which declares simply wrong this view that going up is the same as evaluating [00:39:58] Speaker 02: failures or levels of failure, and says that the right to reward for superior performance is surely a good deal less implicit in the right to assign work than is the right to sanction for inferior performance. [00:40:12] Speaker 02: So this sanction reward thing is very much in there. [00:40:17] Speaker 02: It seems to be very much, here's the job, and you certainly have the right to police people who aren't doing the job at whatever level of degree. [00:40:24] Speaker 02: But we start going, yes, you are doing [00:40:27] Speaker 02: the job, 100% doing the job, but we'd like to find out if you're doing 125 or 150. [00:40:31] Speaker 02: We'd like to figure out how much icing is on the cake here. [00:40:38] Speaker 00: And I think what this court addressed there was the consequences outside the management rights statutes that you can attach to that icing. [00:40:48] Speaker 00: But the court was very careful in footnote forward to reserve the question of whether communicating the standards at all [00:40:54] Speaker 00: was a form of directing the employees in the first place. [00:40:58] Speaker 00: Now, if we were talking about, you know, we want to motivate employees, so we're going to stick gold stars on the door of everybody who gets an outstanding for the next month, that might not be a management right under 7106 under this court's reasoning because it's a reward outside the enumerated management rights. [00:41:16] Speaker 00: But this is an exercise of the enumerated management rights itself because it is a form of directing employees. [00:41:22] Speaker 05: Yeah, you're saying directing and grading are inextricably tied together. [00:41:25] Speaker 00: I think setting out the standards for grading and directing are inextricably. [00:41:32] Speaker 05: Wait, you're cutting back on what I'm saying? [00:41:35] Speaker 05: Not any grading? [00:41:36] Speaker 00: I'm adding a nuance, Your Honor. [00:41:37] Speaker 00: If what we're talking about is the application of a standard that's been previously announced to an employee. [00:41:43] Speaker 05: The grading. [00:41:44] Speaker 00: The grading and not the rubric is the distinction I'm trying to draw. [00:41:49] Speaker 00: Just setting out the rubric, saying this is what it means to be an outstanding employee versus a good employee versus a merely acceptable employee. [00:41:57] Speaker 00: The promulgation of the rubric that you're going to use in the grading is what we're talking about here. [00:42:02] Speaker 00: And that is a form of directing employees. [00:42:04] Speaker 00: And moreover, it's intimately bound up in the assignment of work, which is the second management right that the authority has long relied on. [00:42:12] Speaker 00: I think it's a very common sense at the human level intuition that when you are trying to decide which employee should do which task, it's helpful to know whether someone is merely acceptable at something versus good or excellent at something. [00:42:29] Speaker 05: Is that in the authority's rationale? [00:42:32] Speaker 00: Well, the authority certainly has relied for over three years. [00:42:35] Speaker 05: In this case, is that in the rationale? [00:42:36] Speaker 00: They don't spill it out in that. [00:42:38] Speaker 05: It seems it's terribly important, because you're talking about something that at least facially looks quite different. [00:42:45] Speaker 05: I'm setting standards, and I'm grading on whether you met the standards. [00:42:49] Speaker 05: And if what you're saying is so self-evident, it's kind of amazing. [00:42:53] Speaker 05: And given 1986 and how we rejected the authority's rationale there, it's kind of amazing here that the authority didn't play it out the way you and counsel on your side are arguing the case. [00:43:05] Speaker 05: They're not playing it out the way you're playing it out. [00:43:07] Speaker 00: I think if you look back to starting in 1983. [00:43:11] Speaker 05: How about this case? [00:43:13] Speaker 05: There's a rationale in this case. [00:43:15] Speaker 00: Yes, because the authority sided back to its 1984 decision where it started expanding on its initial, initially it had applied it only to below acceptable. [00:43:28] Speaker 00: That was its first 1980 decision. [00:43:30] Speaker 00: starting in 1983, again in 1984. [00:43:32] Speaker 00: And certainly since this court's 1986 decision, the authority has looked to 4302, starting in its 1983 decision, and said, hey, this is a form of assigning work. [00:43:43] Speaker 00: This is a form of directing employees. [00:43:45] Speaker 00: So I think that the allegation the union brings here that the reasoning here was too cursory. [00:43:49] Speaker 05: I don't think those cases go as far as you'd like. [00:43:53] Speaker 05: That's why I ask counsel on your side of the case. [00:43:57] Speaker 05: example of the case in which you think the authorities said, these are indiscriminately the same. [00:44:02] Speaker 05: They're tied together. [00:44:03] Speaker 05: Assigning and measuring how well you did on the assignment are the same. [00:44:08] Speaker 05: I don't see any case that says that. [00:44:10] Speaker 05: I see a lot of language that kind of blah, blah, blah, blah, blah, but never hits. [00:44:15] Speaker 05: That's a very easy statement to make. [00:44:17] Speaker 05: It's never been made. [00:44:18] Speaker 00: I certainly in terms of directing employees, that the authority said here and it has said many times, that what we're talking about is the degree of precision the authority, the agency is able to use. [00:44:30] Speaker 00: Recall, what the union is saying here. [00:44:32] Speaker 05: Let me be fair, as clear as I can in asking this question. [00:44:37] Speaker 05: What is the best case that you have in which you think the authority has said, our authority to set the standards of what a job should be done, [00:44:50] Speaker 05: also includes unilateral right to assess the performance pursuant to those standards. [00:44:58] Speaker 05: Where did they say that? [00:44:59] Speaker 00: I think the best cases are the 1983 decision at 13 FLRA 325. [00:45:04] Speaker 05: I don't see it in there. [00:45:05] Speaker 00: And the 1984 decision where, I mean, again... Council on your side, is it the same language you read? [00:45:12] Speaker 05: Because that's not... The language is trying to get there, flirts around it, [00:45:17] Speaker 05: But it doesn't really say it the way you want. [00:45:20] Speaker 00: Well, Your Honor, recall that, of course, the agency's decision is entitled to deference here. [00:45:25] Speaker 00: So in order to prevail, what the union would have to show is that the conclusion of the FLRA was an unreasonable reading of this statute. [00:45:36] Speaker 05: No, all they have to show is just a question that's never been answered. [00:45:40] Speaker 00: I'm not sure that's right. [00:45:41] Speaker 00: The authority has answered this question repeatedly. [00:45:43] Speaker 05: Well, unless we're going around in circles. [00:45:45] Speaker 05: I keep saying where. [00:45:46] Speaker 05: Why do you think they've made that direct connection between we have the right to set the standards and that includes a unilateral right to grade you on your performance of those standards? [00:45:59] Speaker 00: Again, returning to our earlier colloquy, I do think there's a difference between the rubric and the actual grading. [00:46:05] Speaker 00: And I think that the authority has properly focused on the promulgation of the rubric in the first place. [00:46:11] Speaker 00: We're not talking here about [00:46:13] Speaker 00: We're talking about the right to negotiate. [00:46:16] Speaker 00: That's all we're talking about. [00:46:18] Speaker 05: The union has the right to negotiate how an employee will be evaluated in the performance of a job pursuant to agency standards. [00:46:28] Speaker 05: That's all we're talking about. [00:46:29] Speaker 00: Correct. [00:46:30] Speaker 00: And we are trying to decide whether or not the agency's ability to distinguish between okay performance [00:46:35] Speaker 00: and good performance is a form of directing employees because we're trying to figure out the scope of 7106. [00:46:41] Speaker 00: And a final point on that, which is that in the 1982 decision of this court, the court looked to the legislative history of 4302 and it said, you know, the Senate report there says at the end of the day, it's going to be management who gets to establish the performance appraisal system. [00:46:59] Speaker 00: And so just as in the 1982 NTU decision, [00:47:04] Speaker 00: We think that statement strongly suggests that the FLRA has gotten it right in allowing agencies to do just that. [00:47:12] Speaker 00: There are no further questions. [00:47:13] Speaker 00: We ask the court to affirm. [00:47:19] Speaker 02: Thank you. [00:47:19] Speaker 02: Does counsel have any time? [00:47:21] Speaker 02: We'll give you two minutes. [00:47:24] Speaker 04: Thank you, Your Honor. [00:47:25] Speaker 04: Just briefly, I appreciate that the FLRA has picked up on Your Honor's question, but it did not make the argument in their briefs that 4302 [00:47:33] Speaker 04: undercuts, changes, somehow alters the 7106 analysis. [00:47:39] Speaker 04: I would remind the Court that the pass-fail system has been in place at the agency for many years, so the suggestion that somehow it's unworkable is not that plausible, but the merits are not before this Court. [00:47:49] Speaker 04: We do just want to come to the bargaining table, and we will certainly listen to the policy arguments as to whether it's a good idea or not. [00:47:56] Speaker 04: And lastly, Judge Edwards mentioned job standards cases. [00:47:59] Speaker 04: There are a number of cases about what does it take to get the job done? [00:48:03] Speaker 04: Is it nine batches an hour, 10 reports a month, 100 inspections per year? [00:48:08] Speaker 04: What's critical, what's not critical? [00:48:09] Speaker 04: This proposal does not touch those. [00:48:11] Speaker 04: Again, it just goes to the rating of work that's already been done, already assessed, employees who have already been directed. [00:48:19] Speaker 05: If there are no further questions. [00:48:21] Speaker 05: with counsel for a statement that the 82, if I remember correctly, 82, 84 cases essentially make the judgment that I'm inquiring about. [00:48:33] Speaker 05: That is, setting standards includes assigning includes setting the standards and evaluating how well you've done in performance of those set standards. [00:48:45] Speaker 04: I think she was referring to the companion 1982 cases in NTU and AFG 1. [00:48:49] Speaker 04: The NTU case involved nine batches per hour to avoid remedial action. [00:48:54] Speaker 04: The AFG case involved how do you define critical elements. [00:48:57] Speaker 04: I don't think they dictate a result here. [00:48:59] Speaker 04: The court in 1986 referenced those cases and said they only have to do with action, the minimal amount of work done to avoid remedial action. [00:49:08] Speaker 04: So they're distinguishable from here. [00:49:09] Speaker 04: Neither one involved multiple rating levels as we have here today. [00:49:13] Speaker 02: They say they mark out beforehand the amount of quality and timeliness of the work employees are to perform, and requiring the agency to bargain over those would mean it's having to bargain over quantity, quality, and timeliness, which it must establish in making work assignments and directing employees. [00:49:32] Speaker 02: Why isn't that equally true, whether it's degrees of failing or degrees of succeeding? [00:49:38] Speaker 04: I think that goes to, we need the job to involve nine batches an hour. [00:49:42] Speaker 04: The agency gets to say it's nine batches, it has to be done per hour, what the error rate is. [00:49:47] Speaker 04: That's what timeline is. [00:49:50] Speaker 02: Quality can only be, there can be no higher quality, there can only be lower quality, baseline quality and lower quality. [00:49:59] Speaker 04: This is not how agencies work. [00:50:00] Speaker 04: They don't say, you'd like nine batches an hour, feel free to do eight, we'll give you a lower rating. [00:50:04] Speaker 04: Feel free to do 10, we'll give you a higher rating. [00:50:06] Speaker 04: They say, to get the job done, we need nine batches an hour. [00:50:10] Speaker 04: And then after that, to be sure, some employees are going to do a little bit above what's required, a little bit below, and that'll affect after the fact. [00:50:18] Speaker 04: But it doesn't go into what is the job involved, and those cases are off the table, because those are management rights. [00:50:25] Speaker 02: And we have an emergency now. [00:50:27] Speaker 02: I know the job says nine. [00:50:29] Speaker 02: We have an emergency now. [00:50:32] Speaker 02: We really need to get 10 out an hour for the next week because of this pressing agency emergency. [00:50:41] Speaker 02: I would like to assign the people to that task who have been doing 10 rather than nine. [00:50:48] Speaker 02: Or at least at times we've done 10 rather than nine. [00:50:50] Speaker 02: Is that assigning work, directing and assigning work? [00:50:55] Speaker 04: Assigning work cannot be read so broadly to involve some unknown amount of work by some unknown employee at some future time. [00:51:02] Speaker 04: That is so broad that it will swallow the rule. [00:51:04] Speaker 02: I don't understand. [00:51:05] Speaker 02: So what I just said does not count as assigning work, or it's illegitimate, or I don't understand why. [00:51:09] Speaker 02: We have an emergency now. [00:51:11] Speaker 02: Sorry, that is the ordinary job description, nine units an hour, where you have an emergency situation. [00:51:18] Speaker 02: We're suffering from a government shutdown or whatever. [00:51:20] Speaker 02: We have an emergency situation. [00:51:22] Speaker 02: It's the consumer. [00:51:23] Speaker 02: This is the border protection people. [00:51:25] Speaker 02: They have an emergency. [00:51:26] Speaker 02: We need people who can do 10 an hour to get this, to meet this emergency. [00:51:33] Speaker 02: And I know there's some employees who've done that. [00:51:36] Speaker 02: And I would like to assign the work to them. [00:51:37] Speaker 02: It sounds to me like assigning work. [00:51:39] Speaker 02: And it sounds to me like knowing that someone did better would help in doing that. [00:51:42] Speaker 04: I would direct the court back to the reasoning of the 1986 case that said not everything that bears in some degree on getting the job done can be assigning work or directing employees. [00:51:51] Speaker 02: They were talking about incentive. [00:51:52] Speaker 02: They weren't talking about whether you get an A plus on your paper, which is what the agency is talking about here. [00:51:59] Speaker 02: They were talking about, well, because you got an A plus, you get to be line leader. [00:52:03] Speaker 02: You get to negotiate about whether they get to be line leader because they got A plus. [00:52:07] Speaker 02: But this is about whether they can put an A plus on their paper. [00:52:10] Speaker 02: And then when push comes to shove, [00:52:11] Speaker 02: and we're in a crisis situation, I'd like to bring out the A plus team. [00:52:15] Speaker 04: Well, to use your example, you might want to bring out the people who got incentive pays last year, because maybe I want to give them the 10 badges. [00:52:21] Speaker 04: But again, that can't be enough, because that would be such a broad reading of management rights that there would be very little left. [00:52:28] Speaker 05: But if I'm hearing you correctly, I'm trying to listen very carefully, you're kind of agreeing with the authority that those cases, those earlier cases, can easily be read to embrace the grading [00:52:41] Speaker 05: of an employee's work pursuant to the established standards? [00:52:47] Speaker 04: I'm sorry, the ethol-based cases do involve multiple ratings levels, but I think they are limited to union attempts to restrict remedial ratings, and we're saying ours is distinguishable because we are not trying to interfere with the agency's right to [00:53:03] Speaker 04: address substandard performance. [00:53:05] Speaker 03: But in the proceedings below, didn't the Union argue that the FLRA should overrule its earlier precedents? [00:53:11] Speaker 03: I think that was specifically stated as requesting the authority to overrule their earlier cases. [00:53:18] Speaker 04: We did, and of course this Court does not agree with me that the cases are distinguishable. [00:53:21] Speaker 04: It can overrule it, but I think they're distinguishable in a very important respect for the reasoning set forth in the 1986 case, the difference between awarding superior work, sanctioning inferior work. [00:53:32] Speaker 02: If you have the system that you envision that has successful and then gradations of less successful, is it within the agency's management right to assign work and say we're going to give the work first to people that got successful? [00:53:50] Speaker 02: They're going to get the daytime shifts, people who got successful. [00:53:57] Speaker 02: People who didn't get successful may have to work the [00:54:01] Speaker 02: 3 to 11 shift or something like that. [00:54:05] Speaker 02: Can they do that? [00:54:06] Speaker 02: Is that a signing work? [00:54:08] Speaker 02: That's a signing work, right? [00:54:10] Speaker 02: I'm not sure about the whole shift thing, what other limitations there may be on that. [00:54:15] Speaker 02: Can they factor in in a signing work in any way whatsoever the fact that someone was successful rather than less than successful? [00:54:24] Speaker 04: They might consider it the same way they might consider, gee, I wonder who got a commendation last week or incentive pay, but it can't be enough to bring it into the statutory list. [00:54:31] Speaker 02: You seem to agree that assigning and directing work includes the ability to use gradations of successful and below. [00:54:38] Speaker 02: And now I'm trying to say, give me an example of how they could assign work based on whether you got successful or marginally less than successful. [00:54:47] Speaker 02: Would you agree they can do that, and that's part of their power to direct and assign work? [00:54:51] Speaker 04: I mean, I don't know that a supervisor may enter their head whether there's an actual limit to... Why do you agree that they can have gradations below successful then? [00:55:01] Speaker 04: Because I think we want to steer away from the FLRI cases that have been directly on point. [00:55:05] Speaker 04: We're recognizing the limitations of the case law in front of us. [00:55:08] Speaker 05: Aren't you directing an employee to grade performance? [00:55:13] Speaker 05: You're now grading performance and you've graded poorly, aren't you saying? [00:55:17] Speaker 05: This isn't acceptable. [00:55:18] Speaker 05: Here's what we expect you to do. [00:55:20] Speaker 05: Here's a standard we established. [00:55:22] Speaker 05: You didn't need it. [00:55:22] Speaker 05: Isn't that directing the employee? [00:55:24] Speaker 04: I think directing goes to the front end. [00:55:26] Speaker 04: You know, I'm directing you to do nine batches an hour. [00:55:29] Speaker 04: What we're talking about is an evaluation after the fact. [00:55:32] Speaker 05: Yeah, and after the fact evaluation. [00:55:33] Speaker 05: Someone's in a job, and you give them an evaluation. [00:55:37] Speaker 05: And your evaluation is, forget the particulars of your [00:55:41] Speaker 05: request here. [00:55:42] Speaker 05: It's an evaluation. [00:55:43] Speaker 05: It's not the highest. [00:55:45] Speaker 05: It's not the lowest. [00:55:46] Speaker 05: But it suggests some deficiency. [00:55:48] Speaker 05: So the grade is not great. [00:55:50] Speaker 05: It's a C-plus grade in effect. [00:55:53] Speaker 05: Aren't you directing the employee by saying, this is not up to snuff. [00:55:57] Speaker 05: It's C-plus. [00:55:59] Speaker 05: We want you to do better than that. [00:56:01] Speaker 05: And if you got any questions, ask them. [00:56:03] Speaker 04: I don't think this court, or their florets, has interpreted directing employees that broadly. [00:56:07] Speaker 04: It should be more [00:56:09] Speaker 04: What goes into getting the job done? [00:56:11] Speaker 04: Those content, those job standard cases we described. [00:56:16] Speaker 05: Suppose a supervisor sees someone at work and goes up to them and says, right, do it like this. [00:56:24] Speaker 05: That's directing, right? [00:56:27] Speaker 04: Yes. [00:56:28] Speaker 05: The supervisor puts the same thing in an evaluation pursuant to the agency's authority to evaluate work done pursuant to standards. [00:56:36] Speaker 05: It's the same thing. [00:56:38] Speaker 04: I don't think it's the same thing. [00:56:39] Speaker 04: The first example is at the front end, going in, I need you to get this done. [00:56:43] Speaker 04: I said nine patches an hour, everyone's got to get it up to nine. [00:56:47] Speaker 05: Okay, gotcha. [00:56:48] Speaker 04: Thank you very much. [00:56:49] Speaker 04: Thank you. [00:56:50] Speaker 04: The case is submitted.