[ v26 p612 ]
26:0612(76)NG
The decision of the Authority follows:
26 FLRA No. 76
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 32
Union
and
OFFICE OF PERSONNEL
MANAGEMENT
Agency
Case No. 0-NG-957
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is 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) and presents issues
concerning the negotiability of three proposals. The proposals were
introduced during bargaining over the impact and implementation of the
Agency's new Annuitant Service Division Training Memo. For the reasons
stated below, we find Proposal 1 to be negotiable and Proposals 2 and 3
to be nonnegotiable.
II. Proposal 1
Employees will be given at least 2 hours of non-measured work
time to set up their desks and adjust work patterns in accordance
with these new instructions, including employees who have already
done so.
A. Positions of the Parties
The Agency contends that the proposal interferes with its rights
under section 7106(a)(2)(A) and (B) of the Statute to direct employees
and to assign work. According to the Agency, Proposal 1 in this case is
not materially different from Proposal 2, found to be nonnegotiable, in
American Federation of Government Employees, AFL-CIO, Local 1923 and
Department of Health and Human Service, Social Security Administration,
12 FLRA 17 (1983).
The Union characterizes the proposal as an appropriate arrangement,
within the meaning of section 7106(b)(3) of the Statute, for employees
who will lose productive time because they must set up their desks in a
new way. It contends that the holding in AFGE, Local 1782 v. FLRA, 702
F.2d 1183 (D.C. Cir. 1983), suports the proposal's negotiability.
B. Analysis
1. Violation of Management Rights to Direct Employees and
to Assign Work
While the actual operation of this proposal is not set out in the
record, it is clear that the two hours set aside for employees to
rearrange their desks, etc., would not be factored or otherwise included
in a calculation of the timeliness and quantity of an employee's work
product. Thus, and in agreement with the Agency, we find this proposal
is to the same effect as Proposal 2 found nonnegotiable in Department of
Health and Human Services, Social Security Administration, 12 FLRA 17
(1983). Proposal 2 in that case obligated the agency to grant extra
time or to not count certain time in a determination of the quantity and
timeliness of an employee's work product. The Authority concluded that
as the proposal required negotiation on the content of performance
standards, specifically the quantity and timeliness of an employee's
work product, it interfered with management's rights under section
7106(a)(2)(A) and (B) to direct employees and to assign work. In like
manner Proposal 1 in this case also interferes with management's rights
to direct employees and to assign work. See also National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 23 FLRA No. 36 (1986).
2. An "Appropriate Arrangement" under Section 7106(b)(3)
Although we find that Proposal 1 violates management rights, we need
not conclude that it is nonnegotiable if we find it to be an
"appropriate arrangement for employees adversely affected" by the
exercise of those management rights. See National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986). For the following reasons we find that the proposal
is within the duty to bargain because it does not excessively interfere
with management's rights to direct employees and to assign work.
The proposal is intended to be an "arrangement" for employees
adversely affected by management's exercise of its rights to direct
employees and to assign work under section 7106(a)(2)(A) and (B). The
Agency makes no claim, nor is it otherwise evident from the record, that
it is unnecessary to rearrange desks in order to comply with the revised
training memo. The Union asserts that rearranging desks is a
preliminary requirement to carrying out assignments in conformity with
the new training memo. See Union Reply Brief, n.2. The proposal deals
with this requirement, which in nonproductive time in terms of
employees' performance appraisals, by excluding the time devoted to
rearranging desks from the time available for productive work. If the
time sought by the proposal is not granted, the employees' production
would be adversely affected. They would, of necessity, have to devote
production time to the tasks of rearranging their desks. The inevitable
consequence would be a decrease in the employees' level of performance.
The remaining question is whether the burden imposed on management's
rights by the proposal is excessive when weighed against the proposal's
benefit to employees. We conclude that, on balance, the benefit
accuring to the concerned employees outweighs the detriment imposed on
management's rights to direct employees and to assign work.
As has been noted, the proposal provides for the assignment of a task
necessitated by management's revision of its operating procedures. The
Agency does not contend that the two hours required by the proposal are
excessive. If, however, the Agency views the time allocation as
excessive, a position not stated in the record, that issue is
appropriate for resolution during negotiations or, if necessary, during
impasse proceedings.
The proposal also appears to provide for a more accurate assessment
of employees' performance. The time devoted to rearranging desks is
time during which employees cannot be engaged in producing the final
products by which their performance is measured. To include such time
in the hours available for production of work for performance appraisal
purposes would be a misrepresentation detrimental to the employees
involved, and would not be an accurate measure of employee's ability or
motivation. Moreover, the situation addressed by the proposal is not
one for which the employees are responsible since the decision to revise
work procedures was made by management within its sole discretion. The
task addressed by the proposal is assigned by management and is
nonrecurring. The Union only seeks to establish that the existing
standards do not measure employees' performance during execution of this
one-time, short term task. Consequently, we conclude that the proposal
does not excessively interfere with the development of performance
standards.
C. Conclusion
The burden imposed on management by Proposal 1 is insubstantial when
weighed against the potential benefit accruing to employees.
Consequently, as the proposal does not excessively interfere with the
rights to direct employees and to assin work it is a negotiable
"appropriate arrangement" within the meaning of section 7106(b)(3) of
the Statute.
III. Proposal 2
Employees will suffer no adverse impact for failure to follow
any aspect of the training memo when the circumstances are outside
their control.
A. Position of the Parties
The Agency contends that Proposal 2 requires bargaining over the
content of performance standards. Therefore, the proposal violates the
reserved rights to direct employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute.
The Union describes its proposal as an "arrangement" for employees
adversely affected by management's decision to prescribe new operating
procedures. The proposal, according to the Union, also ensures that
management will take adverse action only for such cause as will promote
the efficiency of the service.
B. Analysis
Violation of Management Rights to Direct Employees and to Assign Work
Proposal 2 in this case is to the same effect as Proposals 1-3 found
nonnegotiable in American Federation of Government Employees, Local 32,
AFL-CIO and Office of Personnel Management, 19 FLRA 93 (1985). In that
case each of the three proposals described a specific work situation
which was "outside their (the employees') control" and sought to
insulate the employees from penalties attributable to the occurrence of
such circumstance. The Authority reasoned that under the proposals,
arbitral scrutiny would extend to inquiry into whether the standards
themselves made the appropriate allowances for the situations described.
The Authority further found that even if the agency were to take into
account the circumstances described in the proposals by assigning other
work and applying performance standards related to the alternate
assignments, an arbitrator could investigate whether the alternate
assignments and/or the related performance standards had an adverse
impact on unit employees.
Thus, the Authority concluded that the proposals were inconsistent
with management's rights to direct employees and to assign work under
section 7106(a)(2)(A) and (B). While Proposal 2 in this case does not
specify a particular work situation beyond an employee's control, it
does, like Proposals 1-3 in Office of Personnel Management, required
employees to be insulated from penalties attributable to the occurrence
of any such circumstances. Under Proposal 2 in this case, the Agency
would be prevented from evaluating an aspect of employees' performance:
their ability to adapt and carry out their assignments in unforeseen
circumstances. This proposal would free employees from accountability
for anything less than satisfactory performance in circumstances where
procedures governing guidance cannot be followed. Consequently,
Proposal 2 divests management of the authority to direct employees and
assign work in those circumstances.
Finally, the Union's claim that management action in evaluating
employees in such circumstances would be inconsistent with the
requirement stated in 5 U.S.C. section 7513 "only for such cause as will
promote the efficiency of the service" cannot be sustained. Performance
based reductions in grade and removals taken under 5 U.S.C. section 4303
are specifically excluded from the 5 U.S.C. section 7513 requirement by
5 U.S.C. section 7512(D). See also Lovshin v. Department of the Navy,
767 F.2d 826 (Fed. Cir. 1985), cert. denied, 106 S. Ct. 1523 (1986),
reh'g denied, 106 S. Ct. 2931 (1986).
2. The Proposal is not an Appropriate Arrangement
The Union asserts that the proposal is negotiable because it
"establishes an arrangement for employees adversely affected by the new
procedures(.)" Presumably the Union intends that the proposal be
included among those matters which are negotiable under section
7106(b)(3) of the Statute. We disagree. We cannot conclude that
management's exercise of its right to revise the procedures used in
accomplishing its work inevitably or inherently has an adverse affect on
the employees who must employ the new procedures. Additionally, we do
not find that management's content of performance standards -- which
otherwise is outside the duty to bargain. See Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA No. 29 (1987), slip op. at 13, petition for review
filed sub nom. Patent Office Professional Association v. FLRA, No.
87-1135 (D.C. Cir. Mar. 26, 1987).
C. Conclusion
Proposal 2 is not an "appropriate arrangement" within the meaning of
section 7106 (b)(3) of the Statute because it does not concern employees
adversely affected by the exercise of a management right. Rather, the
proposal interferes with management's rights to direct employees and to
assign work under section 7106(a)(2)(A) and (B) of the Statute.
Consequently, Proposal 2 is outside the duty to bargain.
IV. Proposal 3
The assignment of ASR's between blocks, types of work or
sections will at all times be fair and consistent.
A. Positions of the Parties
Proposal 3, in the Agency's view, interferes with its rights under
section 7106(a)(2)(A) and (B) of the Statute to direct employees, to
assign work and to determine the personnel by which Agency operations
will be conducted. Specifically, the Agency states that the proposal
"seems reasonably designed to require a predictable and even
distribution of ASR's (Annuitant Services Representatives) within the
various blocks and sections as well as the types of work within the ASD
(Annuitant Services Division). Moreover, this predictable and equitable
distribution must be maintained at all times." Agency Statement of
Position at 4.
The Union claims that this proposal would require that the Agency not
act unfairly when making assignments. The Union characterizes the
Agency's position as asserting a right to make assignments of ASR's
between blocks and types of work or sections unfairly and contends that
the Agency's position is without support in the Statute. Unlike the
previous proposals in this case, the Union does not argue that Proposal
3 constitutes an appropriate arrangement.
B. Analysis
In agreement with the Agency, we find this proposal mandates
consistency and equality in work assignments. As such, it is to the
same effect as Proposal 1 found to be nonnegotiable in National Treasury
Employees Union and Internal Revenue Service, 13 FLRA 48 (1983).
Proposal 1 in that case required that certain assignments be distributed
among employees "on an equitable basis." The Authority noted that the
proposal would prevent management from taking into account valid
considerations in making work assignments and concluded that the
proposal was inconsistent with the right to assign work under section
7106(a)(2)(B) of the Statute. In like manner, Proposal 3 would prevent
the Agency from taking into account valid considerations such as
individual judgment and reliability or work load needs within the
various sections of the ASD in making work assignments. Thus Proposal 3
is inconsistent with management's right to assign work under section
7106(a)(2)(B) of the Statute. See also American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 17 FLRA 326 (1985).
C. Conclusion
We find that Proposal 3 is outside the duty to bargain under section
7106(a)(2)(B) because it is inconsistent with management's right to
assign work. In view of this decision it is unnecessary to address the
Agency's additional contentions that the proposal is nonnegotiable.
V. Order
The Agency must bargain upon request (or as otherwise agreed to by
the parties) concerning Proposal 1. /*/ The petition for review of
Proposals 2 and 3 is dismissed.
The Union also requested two additional remedies in this case,
specifically, that any agreement reached as a result of bargaining
should be ordered to be made retroactive to the date of the contract
then being negotiated and that the Agency should be ordered to not
similarly refuse to bargain in the future. In support of its request,
the Union claims "(t)hese are the remedies intended by Congress to be
provided in cases of unlawful refusals to bargain." We reject this
request. As we recently stated in Decision on Petition for Amendment of
Rules, 23 FLRA No. 57, slip op. at 4 (1986), a petition for review filed
sub nom. National Labor Relations Board Union v. FLRA, No. 86-1624 (D.C.
Cir. Nov. 17, 1986), a requirement to provide unfair labor practice
remedies in circumstances "where an agency is merely alleging -- in the
absence of clear precedent to the contrary -- that a disputed proposal
is nonnegotiable is contrary to the language and legislative history of
the Statute as well as Authority precedent." We do note, however, that
(nothing prevents the parties from agreeing to apply retroactively any
agreements they reach on negotiable issues.
Issued, Washington, D.C., April 21, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding Proposal 1 to be within the duty to bargain, we make
no judgment as to its merits.