American Federation of Government Employees, Local 2849, AFL-CIO (Union) and Office of Personnel Management, New York Regional Office (Agency)



[ v07 p571 ]
07:0571(88)NG
The decision of the Authority follows:


 7 FLRA No. 88
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2849
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 NEW YORK REGIONAL OFFICE
 Agency
 
                                            Case No. O-NG-258
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7101-7135).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF FOUR
 UNION PROPOSALS.
 
                             UNION PROPOSAL 1
 
    EACH SUPERVISOR/MANAGER WILL, AFTER MEETING AND CONFERRING, IDENTIFY
 IN WRITING THOSE PERFORMANCE ELEMENTS, CRITICAL ELEMENTS, AND
 PERFORMANCE STANDARDS FOR EACH EMPLOYEE UNDER THEIR SUPERVISION.
 STANDARDS AND ELEMENTS SO IDENTIFIED WILL BE CONSISTENT WITH THE DUTIES
 AND RESPONSIBILITIES CONTAINED IN PROPERLY CLASSIFIED POSITION
 DESCRIPTIONS.  ALL STUDIES CONDUCTED BY THE EMPLOYER WILL BE CONDUCTED
 ON TYPICAL WORKERS UNDER NORMAL WORKING CONDITIONS.  THE UNION SHALL
 PARTICIPATE ON AN EQUAL BASIS IN THE DEVELOPMENT OR REVISION OF ALL
 MEASURES OF PERFORMANCE AND STUDIES INCLUDING BUT NOT LIMITED TO FORMAL
 NEGOTIATIONS (SIC) WILL BE CONVENED.  ANY IMPASSES WILL BE REFERRED TO
 THE FEDERAL SERVICE IMPASSES PANEL FOR RESOLUTION.  ALL INFORMATION
 INCLUDING ANY OBJECTIVES TO DATA DERIVED FROM WORK STUDIES WILL BE
 PROVIDED TO THE UNION WITHIN FIVE DAYS OF ISSUANCE.
 
    (ONLY THE UNDERSCORED PORTIONS OF THIS PROPOSAL HAVE BEEN ALLEGED BY
 THE AGENCY TO BE OUTSIDE THE DUTY TO BARGAIN.)
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTIONS OF THE
 UNION'S PROPOSAL ARE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS
 ALLEGED BY THE AGENCY, ARE INCONSISTENT WITH THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  INSOFAR AS THE PROPOSAL REQUIRES NEGOTIATION
 ON THE ESTABLISHMENT AND CONTENT OF CRITICAL ELEMENTS AND PERFORMANCE
 STANDARDS, IT IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 PETITION FOR REVIEW OF THE "MEET AND CONFER" PORTION OF THE FIRST
 SENTENCE OF THE PROPOSAL AND OF THE ENTIRE FOURTH SENTENCE OF THE
 PROPOSAL BE, AND IT HEREBY IS, DISMISSED.  THE SECOND SENTENCE OF THE
 PROPOSAL, HOWEVER, CONSTITUTES A PROCEDURE WHICH MANAGEMENT WILL
 OBSERVE
 IN THE DEVELOPMENT OF PERFORMANCE STANDARDS, AND, THERFORE, IS WITHIN
 THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING THE SECOND SENTENCE OF THE PROPOSAL.  /1/
 
    REASONS:  THE AGENCY STATES AND THE UNION TACITLY CONCEDES THAT THE
 "MEETING AND CONFERRING" LANGUAGE IN THE UNDERSCORED PORTION OF THE
 FIRST SENTENCE OF THE PROPOSAL WOULD REQUIRE THAT PARTICULAR PERFORMANCE
 STANDARDS AND CRITICAL ELEMENTS BE ESTABLISHED THROUGH NEGOTIATIONS.
 CONSEQUENTLY, THIS PORTION OF THE PROPOSAL BEARS NO MATERIAL DIFFERENCE
 FROM THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN NATIONAL TREASURY
 EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC
 DEBT, 3 FLRA NO. 119(1980) AND HELD TO BE OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE.  IN THAT CASE, THE AUTHORITY DETERMINED THAT A
 PROPOSAL TO ESTABLISH A PARTICULAR CRITICAL ELEMENT AND A PARTICULAR
 PERFORMANCE STANDARD FOR JOB RETENTION WAS INCONSISTENT WITH
 MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE.  /2/ THEREFORE, FOR THE REASONS
 FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT, THE "MEETING AND
 CONFERRING" PORTION OF THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD TO
 BE OUTSIDE THE DUTY TO BARGAIN.
 
    SIMILARLY, THE FOURTH SENTENCE OF THE PROPOSAL WOULD REQUIRE FORMAL
 NEGOTIATIONS CONCERNING MEASURES OF PERFORMANCE (I.E., PERFORMANCE
 STANDARDS) TO BE ESTABLISHED FOR EMPLOYEES IN THE BARGAINING UNIT.  THE
 PROPOSAL IS, IN LANGUAGE AND EFFECT, VIRTUALLY IDENTICAL TO A PROPOSAL
 IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND
 DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT
 CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981), WHICH WAS HELD TO
 BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF
 THE STATUTE.  THEREFORE, FOR THE REASONS SET FORTH IN THAT DECISION, THE
 FOURTH SENTENCE OF THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD TO BE
 OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE.
 
    THE SECOND SENTENCE OF THE PROPOSAL WOULD REQUIRE PERFORMANCE
 STANDARDS AND CRITICAL ELEMENTS TO BE CONSISTENT WITH THE DUTIES AND
 RESPONSIBILITIES CONTAINED IN A PROPERLY CLASSIFIED POSITION
 DESCRIPTION.  A POSITION DESCRIPTION REFLECTS THE DUTIES AND
 RESPONSIBILITIES ASSIGNED TO A POSITION;  IN OTHER WORDS, IT MERELY
 DESCRIBES WORK WHICH IT IS EXPECTED WOULD BE ASSIGNED TO AN EMPLOYEE BUT
 IT IS NOT, IN ITSELF, AN ASSIGNMENT OF WORK.  MOREOVER, WHEN PERFORMANCE
 STANDARDS ARE ESTABLISHED, A POSITION DESCRIPTION MAY BE REVISED, IF
 NECESSARY.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE,
 FORT DIX, NEW JERSEY, 2 FLRA 152, 159-61(1979), ENFORCED AS TO OTHER
 MATTERS SUB NOM.  DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
 AUTHORITY, 659 F.2D 1140 (D.C. CIR.  1981).
 
    THUS, THIS PROPOSAL, BY REQUIRING CONSISTENCY BETWEEN POSITION
 DESCRIPTIONS ON THE ONE HAND, AND CRITICAL ELEMENTS IDENTIFIED AND
 PERFORMANCE STANDARDS ESTABLISHED FOR A POSITION ON THE OTHER HAND,
 WOULD NOT LIMIT THE AGENCY'S CHOICE OF CRITICAL ELEMENTS OR PERFORMANCE
 STANDARDS.  RATHER, THE AGENCY COULD ALWAYS ACHIEVE CONSISTENCY AS
 REQUIRED BY THE PROPOSAL MERELY BY AMENDING THE POSITION DESCRIPTION.
 
    ACCORDINGLY, UNDER THE PROPOSAL, THE RIGHT OF THE AGENCY TO ASSIGN
 WORK AND TO DIRECT EMPLOYEES THROUGH ESTABLISHING SUCH ELEMENTS AND
 STANDARDS REMAINS UNAFFECTED, SUBJECT TO THE PROCEDURAL REQUIREMENT THAT
 THE POSITION DESCRIPTION INVOLVED ACCURATELY REFLECT THE WORK ASSIGNED.
 THE SECOND SENTENCE OF THE PROPOSAL, THEREFORE, IS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.  /3/
 
                             UNION PROPOSAL 2
 
    ANY DISPUTES UNDER THIS ARTICLE MAY BE RESOLVED UNDER THE NEGOTIATED
 PROCEDURE INCLUDING BUT NOT LIMITED TO:
 
    (1) CHALLENGES TO THE CRITICAL ELEMENTS OF A POSITION.
 
    (2) THE MEASURES OF PERFORMANCE AS SET FORTH IN PERFORMANCE
 STANDARDS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE
 DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY THE AGENCY, IS
 INCONSISTENT WITH THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE
 UNION'S PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE PROPOSAL HERE IN DISPUTE, WHICH WOULD EXTEND THE
 COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO INCLUDE DIRECT
 CHALLENGES TO THE AGENCY'S IDENTIFICATION OF THE CRITICAL ELEMENTS AND
 ESTABLISHMENT OF PERFORMANCE STANDARDS OF A POSITION, IS IDENTICAL IN
 LANGUAGE AND EFFECT TO A PORTION OF A UNION PROPOSAL WHICH WAS BEFORE
 THE AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981), AND
 WHICH WAS HELD TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7106(A)(2)(A) AND (B) OF THE STATUTE (AT PP. 8-11 OF THE DECISION).
 THEREFORE, FOR THE REASONS SET FORTH IN DETAIL IN SAINT LAWRENCE SEAWAY,
 THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD TO BE OUTSIDE THE DUTY TO
 BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.
 
                             UNION PROPOSAL 3
 
    EMPLOYEES AND/OR UNION WILL JOINTLY IDENTIFY THOSE PERFORMANCE
 ELEMENTS, CRITICAL ELEMENTS,
 
    AND PERFORMANCE STANDARDS WHICH THEY CONSIDER CONSISTENT WITH THEIR
 DUTIES AND
 
    RESPONSIBILITIES.  STANDARDS OF PERFORMANCE WILL MAKE ALLOWANCES FOR
 FACTORS BEYOND THE
 
    CONTROL OF THE EMPLOYEE.
 
    (ONLY THE UNDERSCORED PORTION OF THIS PROPOSAL HAS BEEN ALLEGED BY
 THE AGENCY TO BE OUTSIDE THE DUTY TO BARGAIN.)
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THE
 UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN OR, AS ALLEGED BY THE
 AGENCY, IS INCONSISTENT WITH THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNDERSCORED PORTION OF THE PROPOSAL IS NOT
 INCONSISTENT WITH THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
 ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
 THE PARTIES) BARGAIN CONCERNING THE UNDERSCORED PORTION OF THE PROPOSAL.
  /4/
 
    REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA
 NO. 120(1980), THE AUTHORITY HELD THAT A PROPOSAL REGARDING GENERAL
 CRITERIA FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT
 HAD ESTABLISHED WAS WITHIN THE DUTY TO BARGAIN.  MORE SPECIFICALLY, THE
 AUTHORITY HELD THAT THE PROPOSED "FAIR AND EQUITABLE" CRITERION SIMPLY
 ESTABLISHED A GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE
 APPLICATION OF PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT MAY
 SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES
 THAT HE HAS BEEN ADVERSELY AFFECTED BY THE APPLICATION OF SUCH
 PERFORMANCE STANDARDS.
 
    SIMILARLY, THE PRESENT PROPOSAL WOULD NOT IMPOSE ON THE AGENCY A
 PARTICULAR MANDATE WHICH WOULD AFFECT THE QUANTITY, QUALITY, OR
 TIMELINESS OF WORK PRODUCTION.  THAT IS, THE PROPOSAL WOULD PROVIDE A
 GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
 PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT MAY SUBSEQUENTLY BE
 EVALUATED IN A GRIEVANCE. SUCH REVIEW BY AN ARBITRATOR WOULD NOT RESULT
 IN THE SUBSTITUTION OF THE ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY;
  RATHER, IT WOULD SIMPLY DETERMINE WHETHER THE PERFORMANCE STANDARD
 ESTABLISHED BY MANAGEMENT, AS APPLIED TO THE GRIEVANT, MADE ALLOWANCES
 FOR FACTORS BEYOND THE GRIEVANT'S CONTROL, AS REQUIRED BY THE PROPOSAL.
 ACCORDINGLY, FOR THE REASONS SET FORTH IN GREATER DETAIL IN AFGE, LOCAL
 32, SUPRA, THE PROPOSAL HERE IS NEGOTIABLE UNDER SECTION 7106(B)(3) OF
 THE STATUTE SINCE IT DEALS WITH APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
 ADVERSELY AFFECTED BY THE EXERCISE OF A MANAGEMENT RIGHT.  /5/
 
                             UNION PROPOSAL 4
 
    OPEN AND FRANK DISCUSSIONS BETWEEN SUPERVISOR (SIC) EMPLOYEES AND/OR
 UNION CONCERNING
 
    ELEMENTS AND STANDARDS IS ENCOURAGED AND AN OPPORTUNITY FOR SUCH
 DISCUSSIONS WILL BE AFFORDED
 
    EMPLOYEES BEFORE FINAL PERFORMANCE ELEMENTS AND STANDARDS ARE AGREED
 TO.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE
 DUTY TO BARGAIN OR, AS ALLEGED BY THE AGENCY, IS INCONSISTENT WITH THE
 STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  INSOFAR AS THE PROPOSAL REQUIRES NEGOTIATION
 ON THE ESTABLISHMENT AND CONTENT OF CRITICAL ELEMENTS AND PERFORMANCE
 STANDARDS, IT IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 PETITION FOR REVIEW OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  ON ITS FACE, THE PROPOSAL WOULD REQUIRE PERFORMANCE
 STANDARDS AND CRITICAL ELEMENTS TO BE "AGREED TO." CONSEQUENTLY, THE
 UNION'S PROPOSAL HERE BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL
 WHICH WAS HELD TO BE OUTSIDE THE DUTY TO BARGAIN IN NATIONAL TREASURY
 EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC
 DEBT, 3 FLRA NO.  119(1980).  SINCE THE INSTANT DISPUTED PROPOSAL, LIKE
 THE ONE IN BUREAU OF THE PUBLIC DEBT, WOULD REQUIRE PERFORMANCE
 STANDARDS AND CRITICAL ELEMENTS THEMSELVES TO BE BARGAINED OVER AND
 "AGREED TO," IT MUST ALSO BE HELD TO BE NONNEGOTIABLE FOR THE REASONS
 FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT.
 
    ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN DECIDING THAT THE ABOVE IDENTIFIED PORTION OF THE PROPOSAL IS
 WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS
 MERITS.
 
    /2/ SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGEN