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28 FLRA NO. 22

GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1409

                    Union

     and

DEPARTMENT OF THE ARMY, U.S.
ARMY ADJUTANT GENERAL PUBLICATIONS
CENTER, BALTIMORE, MARYLAND

                    Agency

Case No. 0-NG-1336

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). The case presents issues concerning the negotiability of two provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute. 1

II. Provision I

The Members of the Authority disagree over the negotiability of the first sentence of Provision 1. The Decision and Order of the Authority and Chairman Calhoun's dissenting opinion with respect to this matter follow this decision. 

The Members are in agreement with respect to the negotiability of sentence 2 of Provision 1 which follows:

a. Article 8, Section 8.01.

Employees will not be appraised on factors over which they have no control; for example, weather, vendor materials, deliveries, funding.

A. Positions of the Parties

The Agency contends that the second sentence of Provision 1 is nonnegotiable because it interferes with management's right to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. The Agency also contends that this portion of the provision is not an "appropriate arrangement" under section 7106(b)(3) of the Statute. Specifically, the Agency argues that the Union fails to provide any information concerning the nature and extent of the adverse effects on employees which the provision is intended to ameliorate. In any event, the Agency contends the provision would totally abrogate the exercise of management's right to assign work and direct employees so as to be inappropriate as an arrangement for adversely affected employees under section 7106(b)(3).

The Union disputes the Agency's contentions and argues that the provision is a negotiable "appropriate arrangement" under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

The second sentence of Provision 1 would prevent the Agency from appraising an employee on certain factors over which the employee has no control. This sentence is to the same effect as Proposal 2 in American Federation of Government Employees, Local 32 and Office of Personnel Management, 26 FLRA No. 76 (1987). We found that proposal to be outside the duty to bargain because it was inconsistent with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and was not an "appropriate arrangement" under section 7106(b)(3). It would have insulated employees from any consequences for failure to follow any aspect of a training memo when the circumstances were outside the control of the employee. 

Consequently, for the reasons and cases cited in Office of Personnel Management, the second sentence of Provision 1 in this case is likewise outside the duty to bargain and does not constitute an "appropriate arrangement" within the meaning of section 7106 (b)(3) of the Statute.

III. Provision 2

C. Article 21, Section 2107.

Supervisors will not assign employees to duties which conflict with any medical restrictions or limitations placed on the employees by competent medical authority.

A. Positions of the Parties

The Agency contends that Provision 2 conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also contends that this provision is neither a "procedure" nor an "appropriate arrangement" under section 7106(b)(2) and (3) of the Statute because it excessively interferes with management's right to assign work by precluding the Agency from making work assignments which the employee may perceive as being in conflict with restrictions or limitations set forth "by competent medical authority." Further, the Agency asserts that this provision would completely abrogate its right to assign work by permitting the substitution of an arbitrator's judgment for management's determination of which duties might conflict with the medical restrictions and also places a condition--the limitations placed on the employee by competent medical authority--on the exercise of management's right to assign work.

The Union disputes the Agency's contentions. In particular, the Union contends that Provision 2 is a procedure under 7106 (b) (2) or an appropriate arrangement under section 7106 (b) (3) which is intended to protect employees with medical limitations from being further injured or otherwise harmed by an Agency assignment of work that is contrary to medical restrictions.

B. Analysis and Conclusions

Provision 2 prevents the Agency from assigning particular types of duties to employees, namely, any duties which might conflict with any restrictions by competent medical authority. The Authority has consistently held that proposals  which interfere with management's right to assign work under section 7106(a)(2)(B) are outside the duty to bargain and not enforceable by arbitrators. See, for example, National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA No. 30 (1986) (Proposal 5); Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA No. 48 (1986). Proposals providing that work assignments will be altered or tailored to accommodate employees who are temporarily unable to perform their regularly assigned duties because of illness or injury have been held to be nonnegotiable. National Federation of Federal Employees. Local 943 and Department of the Air Force, Headquarters Keesler Technical Training Center, Keesler Air Force Base, Mississippi, 19 FLRA 949 (1985) (Proposal 2); National Federation of Federal Employees, Local 1624 and Air Force Contract Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980).

Because this provision directly interferes with management's right to assign work under section 7106(a)(2)(B) by limiting the work which can be assigned to employees, it is not a negotiable procedure under section 7106(b)(2). It is outside the Agency's duty to bargain unless it is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). As explained in Kansas Army National Guard, in order to determine whether a provision constitutes a negotiable appropriate arrangement, we must first determine whether it is intended to be an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the provision is intended to be an "arrangement," we will determine whether it is appropriate, or whether it is inappropriate because it excessively interferes with the exercise of management's rights.

According to the Union, Provision 2 is intended to protect employees from being assigned duties which would endanger their health and safety. The provision prevents the assignment of those duties which competent medical advice states could potentially exacerbate an injury or medical condition. Thus, the provision is designed to mitigate against potential injury by limiting the types of assignments which supervisors are able to require employees to perform. We conclude therefore that Provision 2 is intended to be an arrangement for employees who may be adversely affected by the exercise of management's right to assign work.

The remaining question is whether the burden imposed on management's exercise of its rights by the provision is excessive when weighed against the provision's benefit to employees. We conclude that, on balance, the benefit accruing to the concerned employees is outweighed by the detriment imposed on the Agency's right to assign work.

While the provision is intended to protect employees against possible injury from work assignments, in our view the standard contained in the provision for restricting management's right to assign work--whether the duties conflict with any medical restrictions placed on the employee by competent medical authority--is too broad. That is, the prohibition contained in the provision would apply to any duty assignments which employees may claim will conflict for any reason and to any extent with the limitations imposed by competent medical authority. See American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army, Test Measurement and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 4) (provision preventing details of employees to positions or duties beyond their physical capabilities held not to constitute an appropriate arrangement under section 7106(b)(3)). Consequently, we find that Provision 2 excessively interferes with management's right to assign work and therefore is not a negotiable appropriate arrangement under section 7106(b)(3).

IV. Order

The petition for review as to the second sentence of Provision 1 and Provision 2 is dismissed.

Issued, Washington, D.C., July 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

DECISION AND ORDER ON THE FIRST SENTENCE OF PROVISION 1

I. Provision 1

a. Article 8, Section 8.01.

The program will include performance standards which will permit the accurate evaluation of an employee's performance of the duties and responsibilities of his job on the basis of objective criteria related to the individual employee's position.

II. Positions of the Parties

The Agency contends that the first sentence of Provision 1 is nonnegotiable because it would restrict management's determination of the content of performance standards and would permit arbitral review of that determination. The Agency also contends that the provision is not an appropriate arrangement under section 7106(b)(3).

The Union argues that the first sentence of this provision is an appropriate arrangement under section 7106(b)(3) and that it merely restates the requirements of 5 U.S.C. 4302(b)(1) and Chapter 430.204(i) of the Federal Personnel Manual.

III. Analysis and Conclusions

The first sentence of Provision 1 is to the same effect as Proposal 2 in American Federation of Government Employees, AFL - CIO, Local 2192 and Veterans Administration Regional Office, St. Louis, Missouri, 9 FLRA 716 (1982), which the Authority found to be within the duty to bargain because it established general, nonquantitative requirements by which the application of performance standards established by management could subsequently be measured in a grievance. Contrary to the Agency, we find that the first sentence of Provision 1 is intended by the Union to provide a contractual standard by which management action under the Agency's performance standards may be reviewed. Since the first sentence of Provision 1 would also establish a general, nonquantitative standard by which the application of performance standards to employees can be measured in a subsequent grievance, it is, for the reasons stated in Veterans Administration Regional Office, likewise within the Agency's duty to bargain. See also American Federation of Government Employees, AFL - CIO, Local 1940 and Department of Agriculture, Plum Island Disease Center, 16 FLRA 816 (1984) (Proposal 1). Because we find that the first sentence of Provision 1 does not directly interfere with management's rights, we do not need to reach the question of whether it constitutes an "appropriate arrangement" under section 7106(b)(3) of the Statute.

IV. Order

The Agency must rescind its disapproval of the first sentence of Provision 1. 2

Issued, Washington, D.C.,July 2, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Dissenting Opinion of Chairman Calhoun

The first sentence of Provision 1 would require the Agency to establish performance standards based on "objective criteria related to the individual's position." Based on the wording of the sentence and the record in this case, I conclude that this portion of the provision establishes substantive criteria which will govern management's determination of performance standards. See Union Response at 12-13. I disagree with my collegues' conclusion that this part of Provision 1 concerns the application of performance standards. For the following reasons, therefore, I would find this sentence of the provision to be nonnegotiable.

The first sentence of the provision omits the statutory requirement that agencies establish performance standards which will, "to the maximum extent feasible," permit the accurate evaluation of job performance on the basis of objective criteria related to each job or position under the system. 5 U.S.C. 4302(b)(1). By omitting the phrase "to the maximum extent feasible," the first sentence of Provision 1 is more restrictive than the law governing the establishment of performance standards. It would establish a separate contractual limitation on management's determination of the content of performance standards.

By providing a separate contractual criterion governing the establishment of performance standards, the first sentence of Provision 1 has an effect similar to Sections 3.H and 3.J in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987). In that decision it was determined that Sections 3.H and 3.J, although purporting to require the establishment of performance standards in accordance with law, would in fact preclude management from establishing standards which it was legally entitled to prescribe. Patent and Trademark Office, slip op. at 11. The first sentence of Provision 1 would deprive management of the flexibility to establish the standards which in its judgment best serve its appraisal needs, a flexibility which is afforded management under 5 U.S.C. 4302(b)(1). Patent and Trademark Office, slip op. at 10-11. By precluding management from establishing performance standards which would be within the permissible range of feasibility under law, the first sentence of Provision I directly interferes  with management's rights under section 7106(a)(2)(A) and (B) of the Statute and, for the reasons discussed in Patent and Trademark Office, is outside the duty to bargain. I would also find that the first sentence of Provision 1 does not constitute an "arrangement" under section 7106(b)(3) for the reasons set forth in the discussion of Section 3.K in Patent and Trademark Office.

Issued, Washington, D.C.,July 23, 1987.

Jerry L. Calhoun, Chairman 

FOOTNOTES

Footnote 1 The Agency alleges that an additional provision concerning changes in established tours of duty is nonnegotiable. The Union, however, does not address this provision in its Petition for Review and the Agency does not address the provision in its response. Consequently, that provision will not be considered further.

Footnote 2 In finding this portion of the proposal to be negotiable, we make no judgment as to its merits.

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