25:0016(2)NG - AFGE Local 1760 and HHS, SSA, Baltimore, MD -- 1987 FLRAdec NG
[ v25 p16 ]
25:0016(2)NG
The decision of the Authority follows:
25 FLRA No. 2
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1760
Union
and
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Agency
Case No. 0-NG-445
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
because of a negotiability appeal filed under section 7105(a)(2)(E) of
the Federal Service Labor-management Relations Statute (the Statute).
It raises issues concerning the negotiability of four Union Proposals
relating to the Agency's auditing procedures for bargaining unit
employees who are Inquiry and Expediting (I&E) Specialists.
II. Union Proposal 1
A. The parties agree that the review of the I&E Specialists is
to assess and evaluate the effectiveness of employee training and
detect areas where training is lacking or deficient.
B. The employer agrees that once a lack of training or an area
of deficiency is detected an employee will be provided with the
training necessary to sharpen his skills.
C. (See discussion on pages 11 to 16.)
A. Positions of the Parties
With reference to Proposal 1A, the Agency's sole contention is that
the proposal addresses aspects of working conditions that will not be
changed by the Agency's decision to audit the positions of Inquiry and
Expediting Specialists and, therefore, there is no obligation to
bargain. With reference to Proposal 1B, the Agency claims it is
nonnegotiable because it infringes on its right to assign work and/or to
direct employees under section 7106(a)(2) of the Statute. In support of
its argument, the Agency asserts that since both classroom training and
on-the-job training constitute part of the work of the Agency, this
proposal would eliminate the discretion inherent in the right to assign
work under section 7106(a)(2)(B) of the Statute by requiring management
to assign training (work) to certain employees.
As to Proposal 1A, the Union contends that the proposal merely
affirms that the purpose of the review of the I&E Specialist is to
measure the effieiency of employee training and to ascertain those areas
where training is either non-existent or ineffective. With reference to
Proposal 1B, the Union argued that it constitutes an "appropriate
arrangement" within the meaning of section 7106(b)(3) of the Statute for
employees adversely affected by the exercise of management's rights.
The Union refers to the decision of the U.S. Court of Appeals for the
District of Columbia Circuit in American Federation of Government
Employees, Local 2782 v. Federal Labor Relations Authority, 702 F. 2d
1183 (D.C. Cir. 1983), reversing and remanding American Federation of
Government Employees, AFL-CIO, Local 2782 and Department of Commerce,
Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
B. Analysis and Conclusions
Proposal 1 provides as follows: The purpose of the Agency's auditing
process is to assess and evaluate employee training and to detect areas
where training is lacking or deficient (Part 1A), and training in the
area of deficiency will be provided (Part 1B).
As to Proposal 1A, the Agency makes no argument that the proposal is
inconsistent with law or regulation. Rather, it argues only that there
is no change in working conditions as to give rise to the duty to
bargain. The question raised by the Agency regarding its duty to
bargain cannot be resolved in this decision. The record in this case
fails to provide any basis for substantiating the Agency's assertions.
Further, to the extent that there are factual issues in dispute between
the parties concerning the duty to bargain in the specific circumstances
of this case, these issues may be raised in other appropriate
proceedings. See, for example, American Federation of Government
Employees, AFL-CIO, Local 2736 and Department of the Air Force,
Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force
Base, Michigan, 14 FLRA 302 at 306, n. 6 (1984). Consequently, since
the Agency does not contend that the proposal is nonnegotiable and since
the explicit language of the porposal and the Union's statements of
intent do not indicate that the proposal is outside the duty to bargain
under the Statute, the Authority concludes that Proposal 1A is within
the duty to bargain under the Statute.
Turning now to Proposal 1B, such proposal would require the Agency to
provide training for employees whose performance appraisal identified
certain performance deficiencies. The Agency contends that the proposal
interferes with its management rights under section 7106(a) of the
Statute. The Union claims that the proposal is an "appropriate
arrangement" under section 7106(b)(3) of the Statute for employees
adversely affected by the exercise of management's rights. In National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986), the Authority adopted the approach
of the U.S. Court of Appeals for the District of Columbia Circuit for
resolving questions as to the negotiability of proposed "appropriate
arrangements" under section 7106(b)(3) of the Statute. Specifically, we
set out certain factors to be considered in deciding whether a proposal
is negotiable under section 7106(b)(3).
The first question is whether Proposal 1B is an "arrangement" for
employees adversely affected by the exercise of management rights.
Pursuant to its management rights to assign work and direct employees,
management evaluates employee performance against the performance
standards established for each critical element. American Federation of
Government Employees, Local 1760, AFL-CIO and Department of Health and
Human Services, Social Secruity Administration, 15 FLRA 909, 915 (1984).
Under Chapter 43 of title 5 of the U.S. Code, when an employee is
determined to be performing at a less than satisfactory level, that
employee is potentially subject to some remedial action, which may
include demotion, reassignment, or removal. The proposal attempts to
lessen the effect of that remedial action by requiring training in lieu
of any other appropriate action. We find, therefore, that the proposal
is intended as an "arrangement" to ameliorate the adverse affects of the
exercise of management's right to evaluate employees.
The issue then becomes whether Proposal 1B excessively interferes
with management's rights under section 7106(a) of the Statute. Because
the proposal requires training and precludes reassignment or other
disciplinary actions, it directly interferes with management rights.
See American Federation of Government Employees, AFL-CIO, Local 1708 and
Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
3 (1984) (Union Proposal 3). As to whether that interference is so
excessive as to render the proposal nonnegotiable, the Authority held in
Kansas Army National Guard, 21 FLRA No.4, that the determination of what
is an appropriate arrangement, in essence, involves weighing the
benefits to employees of the proposed arrangement against the effect on
management rights. In this case, while affected employees may benefit
from the training required by the proposal, the need for that training
is due to employee "fault", i.e., performance deficiency. See National
Labor Relations Board Union and National Labor Relations Board, Office
of the General Counsel, 18 FLRA No. 42 (1985), cited in Kansas Army
National Guard, 21 FLRA No. 4 at p. 9 of decision. The employee
interests at stake in the proposal are therefore not entitled to great
weight and are not sufficient to justify depriving management of all
descretion as to possible reassingment, demotion, or removal. The
proposal is not limited to providing training for those employees who,
in management's judgment, might profit from training. Rather, it would
mandate training for employees found deficient without regard to the
nature and extent of the deficiency. As a result, the proposal would
require training where, in management's judgement, more serious action
may be warranted. For example, the proposal would require training even
where, under Chapter 43 of title 5, management would be authorized to
remove an employee for unsatisfactory performance in a single critical
element. By mandating training and foreclosing the exercise of other
management rights, the proposal excessively interferes with management
rights to assign employees, to reduce employees in grade, or to remove
employees. Section 7106(b)(3) does not justify completely removing
management's ability to exercise other rights where they are warranted
so as to benefit employees who have failed to perform acceptably.
Consequently, Proposal 1B excessively interferes with management's
rights under section 7106(a) and does not constitute an appropriate
arrangement for employees adversely affected by the exercise of
management's rights within the meaning of section 7106(b)(3) of the
Statute. It is therefore outside the duty to bargain under the Statute.
III. Union Proposal 1C
The FLRA Members disagree over the negotiability of this proposal.
The majority opinion is on pages 11 and 12 of the decision. Chairman
Calhoun's dissent is on pages 14 to 16.
IV. Union Proposal 2
A payment deficiency, for the purpose of this audit, is defined
as any error that delays or interrupts the payment of benefits or
causes an improper payment to be made.
A. Positions of the Parties
The Agency contends that the proposal's definition of the term
"payment deficiency" violates its management right to determine the
technology, methods and means of performing its work under section
7106(b)(1).
The Union contends that the definition of a payment deficiency is a
procedure related to the application of a performance standard and not
an infringement on the Agency's management rights.
B. Analysis and Conclusion
Under existing Authority precedent, we find the proposal
nonnegotiable for reasons other than those alleged by the Agency. The
Authority has previously determined that an agency's rights to "direct"
and "assign work" to employees under section 7106(a)(2)(A) and (B) of
the Statute encompass the ability to determine the quantity, quality and
timeliness of employees' work and the aspects of employees' work which
will be evaluated in a performance appraisal. National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees
Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). This proposal defines
what will be considered a payment deficiency for purposes of performance
appraisal. In American Federation of Government Employees, Local 1760,
AFL-CIO and Department of Health and Human Services, Social Security
Administration, 15 FLRA 909 (1984), the Authority held that the first
group of six proposals defined errors and thus prohibited management
from considering certain mistakes in evaluating the accuracy of work.
The proposals were therefore found to be inconsistent with management's
rights to direct employees and assign work. This proposal similarly
violates those management rights. Thus, the Authority concludes that
the proposal is outside the duty to bargain. See also American
Federation of Government Employees, Local 1822, AFL-CIO and Veterans
Administration Medical Center, Waco, Texas, 9 FLRA 709 (1982), in which
the Authority found a proposed definition of an error violated
management's right to assign work under section 7106(a)(2)(B) and to the
extent the proposal had the effect of modifying the substantive criteria
for taking action against an employee it also violated management's
right to discipline employees under 7106(a)(2)(A) of the Statute.
As to the Agency's allegation that the proposal is outside the duty
to bargain under section 7106(b)(1), the Agency has not shown the
proposal's relationship to the methods, means, and technology of the
accomplishment of the Agency's work mission. The Agency's contention
that the proposal conflicts with section 7106(b)(1) of the Statute has
not been supported and cannot be sustained.
V. Union Proposal 3
A. Prior to the first audit of each year, the managers will
meet with their employees and their union representative and
relate what is minimally acceptable in terms of maintaining a
satisfactory rating and, in addition, what is required to sustain
an acceptable level of competence.
B. The employer agrees that such standards shall be fair and
equitable and shall be arrived at in such a fashion as to be
attainable by average employees.
C. (See discussion on pages 12 to 16.)
D. The parties agree that any disagreement as to the fairness
and equity of such standards will be submitted to an arbitrator
for resolution.
A. Positions of the Parties
The Agency's sole contention is that the proposal addresses aspects
of working conditions that will not be changed by the Agency's decision
to audit the positions of Inquiry and Expediting Specialists. The Union
contends that the proposal does not directly and integrally impact on
the Agency's exercise of its management rights.
B. Analysis and Conclusion
Although the Agency has not alleged that the proposal itself is
nonnegotiable, we find paragraphs B and D of the proposal nonnegotiable
under existing Authority precedent. Paragraphs B and D of the proposal
on their face deal with the contents of performance standards themselves
and arbitral review of those standards.
The Authority has consistently found proposals which substantively
restrict management in its establishment of performance standards to be
outside the duty to bargain as interfering with management's rights to
assign work and direct employees under section 7106(a)(2)(A) and (B) of
the Statute. See, for example, Department of the Treasury, Bureau of
the Public Debt, 3 FLRA 769. The Authority has also found that a
proposal which would have as its sole effect the subjecting of
management's determination concerning the content of performance
standards to the grievance procedure and arbitral review similarly
constituted a substantive interference with management's rights.
American Federation of Government Employees, AFL-CIO, Local 1968 and
Department of Transportation, Sanit Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA 70 (1981) (Union Proposal 4),
aff'd sub nom. American Federation of Government Employees, Local 1968
v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 2085
(1983). Moreover, paragraphs B and D of this proposal are to the same
effect as the disputed portion of a porposal found to be outside the
duty to bargain in American Federation of Government Employees, Local 32
and Office of Personnel Management, 16 FLRA 948 (1984) (Union Proposal
3). In that decision the Authority held that the disputed portion of a
proposal which provided "performance standards . . . must be fair and
equitable" violated management's rights to assign work and direct
employees pursuant to section 7106(a)(2)(A) and (B) of the Statute.
Specifically, the Authority noted that a proposal limited to
establishing a general nonquantitative requirement by which the
application of performance standards could subsequently be evaluated in
a grievance would be a negotiable appropriate arrangement pursuant to
section 7106(b)(3) of the Statute under the holding in American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Union
Proposal 5). However, it distinguished the proposal in the earlier OPM
case from the proposal in the later case which was specifically directed
at the content of the performance standards themselves and would have
the effect of permitting arbitrators to substitute their judgment as to
the content of performance standards for that of the agency.
Consequently, based on Office of Personnel Management, 16 FLRA 948, and
the cases cited there, the Authority concludes that paragraphs B and D
of Proposal 3 here are outside the duty to bargain.
Parahraph A of the proposal merely calls for the Agency to provide
the Union with information with respect to the performance standards and
ratings. The clear language of paragraph A in no way restricts
management in the exercise of its rights under section 7106(a) of the
Statute. Moreover, the Agency does not assert that paragraph A of the
proposal in any way infringes on its management rights. Thus, the
Authority concludes that paragraph A of Proposal 3 is within the duty to
bargain under the Statute. See American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois 7FLRA 217 (1981) (Proposal 2 and
5).
VI. Union Proposal 3C
The FLRA Members disagree over the negotiability of this proposal.
The majority opinion is on pages 12 and 13 of the decision; Chairman
Calhoun's dissent is on pages 14 to 16.
VII. Union Proposal 4
A. A committee, consisting of four technically proficient
employees, two appointed by management and two by the union will
review all errors recorded by the reviewer that are questioned by
the employee.
B. The committee will determine, by majority vote, if the
error is the responsibility of the employee. If the committee
determines it is not, then the subject error will be stricken from
the report and the accuracy rates adjusted accordingly (Clause 8).
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it
interferes with management rights to assign work and employees under
section 7106(a)(2)(A) and (B) and to determine the methods and means of
performing work under section 7106(b)(1). The Union argues that the
proposal sets up a joint union-management committee and as such is an
appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis
The proposal provides for the establishment of a joint
union-management committee with two members appointed by the Union and
two members appointed by the Agency. The functions of the committee
would be (1) to determine by majority vote if the error regarding a
payment deficiency (see Union Proposal 2) is the responsibility of the
employee and (2) if it is determined not to be, to strike the error on
the accuracy rate report. The basic issue is whether the proposal
constitutes a negotiable appropriate arrangement for employees adversely
affected by the exercise of management's rights under section 7106(b)(3)
of the Statute. See the discussion of our decision in National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986) in connection with Proposal 1B.
First the Authority must determine whether the proposal is in fact
intended to be an arrangement for employees adversely affected by
management's exercise of its rights. The Authority finds that the Union
intends the proposal to be an arrangement for employees adversely
affected by management's exercise of its rights to assign work and
direct employees through the establishment of performance requirements
concerning payment deficiencies and the appraisal of employees based
upon these requirements. In essence, the proposal is intended to
subject management's determination that an employee has committed an
error to review by a joint union-management committee.
However, the Authority finds that the proposal would not merely
ameliorate the adverse effects of management's exercise of its rights.
Rather, it would totally negate management's evaluation of employee
performance. The right to evaluate employee performance is part of
management's rights to assign work and direct employees. National
Treasury Employees Union and NTEU Chapter 91 and Department of the
Treasury, Internal Revenue Service, Southwest Region, 19 FLRA No. 82
(1985) (Proposal 1). A proposed arrangement which totally abrogates the
exercise of a management right clearly does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3). See
American Federation of Government Employees, Local 1782 v. FLRA, 702
F.2d 1183, 1188 (D.C. Cir. 1983), reversing and remanding American
Federation of Government Employees, AFL-CIO, Local 1782 and Department
of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
See also Bureau of Engraving and Printing, U.S. Department of the
Treasury and Washington Plate Printers Union, Local No. 2, IPDEU,
AFL-CIO, 20 FLRA No. 39 (1985), in which the Authority held that an
arbitrator, in resolving a grievance by an employee adversely affected
by management's application of performance standards in an appraisal,
could not conduct an independent evaluation of the employee's
performance and substitute his or her judgment as to what should be that
employee's performance evaluation.
C. Conclusion
The Authority concludes that Union Proposal 4 excessively interferes
with the Agency's rights to direct employees and assign work and does
not constitute an appropriate arrangement under section 7106(b)(3) of
the Statute. Consequently, the proposal is outside the duty to bargain
under section 7106(a) of the Statute. In light of this determination,
we find it unnecessary to address the Agency's additional argument
concerning whether the proposal is a permissive matter under section
7106(b)(1).
VIII. Order
The Union's petition for review insofar as it relates to Proposal 1B,
2 and 4, and Paragraphs B and D of Proposal 3, is dismissed. The Agency
must upon request, or as otherwise agreed to by the parties, bargain
concerning Proposal 1A, and Proposal 3A. /1/
Issued, Washington, D.C., January 6, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Majority Opinion on Proposals 1C and 3C
I. Union Proposal 1C
Furthermore, the employer agrees that this review will not be
used for any other purpose and that no employee will be demoted,
terminated or involuntarily reassigned until they have exhausted
all their statutory appeal rights.
A. Positions of the Parties
The Agency's sole assertion is that the subject matter of the
proposal is currently being negotiated at the national level and,
therefore, that it has no obligation to negotiate the same matters with
the Union at the Northeastern Program Service Center, which is below the
level of exclusive recognition.
The Union argues that the substance of the proposal is the same as
that of Proposal 1 in American Federation of Government Employees,
AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire
Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom.
Department of Defense v. Federal Labor Relations Authority, 659 F.2d
1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945,
102 S. Ct. 1443 (1982).
B. Analysis and Conclusion
Proposal 1C provides that the audit will not be used for any other
purpose and adverse personnel actions against employees will be stayed
until those employees have exhausted all statutory appeals procedures.
The Agency makes no claim that it is nonnegotiable but only that the
Agency has no duty to bargain on it at the Baltimore activity because
the proposal is being negotiated at the national level. The question
raised by the Agency regarding its duty to bargain cannot be resolved in
this decision. The record in this case fails to provide any basis for
substantiating the Agency's assertions. Further, to the extent that
there are factual issues in dispute between the parties concerning the
duty to bargain in the specific circumstances of this case, these issues
may be raised in other appropriate proceedings. See Wurtsmith Air Force
Base 14 FLRA at 306, n.6.
We turn now to the substance of Proposal 1C and note that the phrase
"the employer agrees that this review will not be used for any other
purposes" is unclear since the parties do not address its intended
meaning in their statements. To the extent that this phrase would
preclude the Agency from using the audit process to evaluate employees
of the performance of their assigned duties it is inconsistent with the
Agency's rights under section 7106(a)(2)(A) and (B) of the Statute to
direct employees and to assign work. See, for example, National
Treasury Employees Union and NTEU Chapter 91 and Department of the
Treasury, Internal Revenue Service, Southwest Region 19 FLRA No. 82 1985
(Proposal 1). Further, by totally preventing the Agency from exercising
its right to evaluate employees in certain circumstances it would
constitute neither a procedure within the meaning of section 7106(b)(2)
of the Statute nor an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. See American Federation of
Government Employees, Local 1799 and Department of the Army, Aberdeen
Proving Ground, Maryland, 22 FLRA No. 62, slip op. at 6 (1986).
The meaning of the phrase "statutory appeal rights" is also not
defined by the parties in their statements. However, we find that to
the extent this phrase only is intended to require that the imposition
of the specified adverse personal actions will be stayed until an
employee has exhausted whatever appellate rights exist to challenge such
decisions, it is clearly within the duty to bargain under the Statute.
See Dix-McGuire Exchange, 2 FLRA 153 (proposal staying imposition of
disciplinary actions until a final decision on a review of such
discipline is obtained through the negotiated grievance procedure found
negotiable) and National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, Decision and Order on Remand, 13 FLRA
725 (1983) (proposal staying an adverse personnel action pending appeal
to the Merit Systems Protection Board found negotiable). Consequently,
we find Proposal 1C to be in part nonnegotiable and in part negotiable.
II. Union Proposal 3C
The employer agrees to provide the union with a full
explanation as to how such standards were arrived at along with
all supporting documentation.
Analysis and Conclusion
Proposal 3C, as does Proposal 3A, merely calls for the Agency to
provide the Union with information with respect to performance
standards. The positions of the Arties are the same for this proposal
as they are for Proposal 3A. Therefore, since the effect of this
proposal is materially identical to Proposal 3A, that is providing
information to the Union, the Authority finds Proposal 3C to be within
the duty to bargain under the Statute for the same reasons expressed in
our discussion concerning Proposal 3A.
III. Order
Regarding the Union's petition for review, the Agency must upon
request, or as otherwise agreed to by the parties, bargain consistent
with this decision concerning that portion of Proposal 1C found
negotiable and Proposal 3C. /2/ The Union's petition for review
concerning the balance of Proposal 1C is dismissed.
Issued, Washington, D.C., January 6, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean MdKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In finding these proposals within the duty to bargain the
Authority makes no judgment as to their merits.
(2) In finding these proposals within the duty to bargain the
Authority makes no judgment as to their merits.
Dissenting Opinion of Chairman Calhoun on Proposals 1C and 3C
Proposal 1C concerns the uses of performance reviews of certain
employees. I agree with the majority that if the proposal is intended
to preclude the Agency from evaluating employees on their performance,
it is nonnegotiable. The portion of the proposal providing that
employees may not be demoted, terminated, or involuntarily reassigned
"until they have exhausted all their statutory appeal rights" is unclear
to me. I agree that under the Dix-McGuire Exchange and U.S. Customs
Service decisions, a proposal to stay the imposition of discipline
pending the exhaustion of contractual grievance procedures and MSPB
procedures could be negotiable. In this case, however, it is my view
that the Union has not met its burden by defining the "statutory appeal
rights" to which its proposal refers. In the absence of a clear
indication of the parameters of the proposal, and its resulting effects
on management's right to discipline, I am unable to determine whether
the proposal is negotiable. I believe that, in the future, the
Authority should remand cases like this one to the parties for
clarification of the record.
As for Proposal 3C, it requires the Agency to provide the Union with
a "full explanation" of how it arrived at performance standards "along
with all supporting documentation." The majority finds that the effect
of this proposal is materially identical to that of Proposal 3A and,
therefore, finds both proposals to be negotiable for the same reasons.
In my view, the two proposals are substantially different. Proposal 3A
requires Agency representatives to meet on an annual basis with
employees and Union representatives to explain what performance is
necessary to maintain a satisfactory rating and to sustain an acceptable
level of competence. Such a requirement effectuates the mandates of 5
U.S.C. 4302 that performance appraisal systems provide for, among other
things, the communication to employees of performance standards and
critical elements and the assistance to employees in improving
unacceptable performance. Proposal 3C, on the other hand, requires the
Agency to explain and provide documentation concerning particular
standards.
Management's rights under section 7106 of the Statute include more
than the right to decide to take the final actions specified. The
exercise of those rights also encompasses the right to discuss and
deliberate concerning the factors upon which the determinations to
exercise the rights will be made. See, for example, National Federation
of Federal Employees, Local 1167 and Department of the Air Force,
Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base,
Florida, 6 FLRA 574 (1981), enforced sub nom. National Federation of
Federal Employees v. FLRA 681 F.2d 886 (D.C. Cir. 1982). Although
originally articulated in relation to management's right to contract
out, the principle has been extended to other rights, including the
rights to determine the agency's organization, to layoff employees, and
to make selections for appointments. See National Federation of Federal
Employees, Local 1431 and Veterans Administration Medical Center, East
Orange, New Jersey, 9 FLRA 998 (1982); National Federation of Federal
Employees, Local 108 and U.S. Department of Agriculture, Farmers Home
Administration, 16 FLRA 111 (1984) (Proposal 1); and American
Federation of Government Employees, AFL-CIO, Local 3488 and Federal
Deposit Insurance Corporation, New York Region, 17 FLRA 538 (1985)
(Proposal 2), respectively.
In American Federation of Government Employees, AFL-CIO, Local 1708
and Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15
FLRA 3 (1984), a portion of Proposal 1 would have allowed the Union to
"have an observer present in the development or revision of all measures
of performance and studies." The Authority characterized the provision
as requiring "the Union's involvement in managerial deliberations and
discussions which are part of the decision-making process" directly
relating to the exercise of management rights to direct employees and
assign work. Id. at 5. The Authority held that this provision directly
interfered with management's rights and was nonnegotiable.
I find that Proposal 3C would have a similar result as that in
Military Ocean Terminal. Although the Union would not be physically
present during the deliberations over the establishment of performance
standards, it would be present "after the fact" through its examination
of documents and explanations concerning those deliberations. Further,
the proposal requires the Agency to provide a "full" explanation and
"all" supporting documentation. The proposal could, therefore, result
in disputes ending with arbitral review of the adequacy of the
explanation and documentation. The practical result of the proposal
would be Union and possibly arbitral intrusion into the exercise of
management's rights to develop performance standards.
For these reasons, I find that Proposal 3C directly interferes with
the exercise of management's rights to direct employees and assign work
and is nonnegotiable.
Dated, Washington, D.C., January 6, 1987.
/s/ Jerry L. Calhoun, Chairman