14:0408(64)NG - AFGE Local 1395 and SSA, Great Lakes Program Center, Chicago, IL -- 1984 FLRAdec NG



[ v14 p408 ]
14:0408(64)NG
The decision of the Authority follows:


 14 FLRA No. 64
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1395
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION,
 GREAT LAKES PROGRAM CENTER,
 CHICAGO, ILLINOIS
 Agency
 
                                            Case No. O-NG-394
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of five Union proposals.  Union Proposals 1
 and 5 are set forth in the Appendix, and Union Proposals 2, 3, and 4 are
 set forth in the text.  Upon careful consideration of the entire record,
 including the parties' contentions, the Authority makes the following
 determinations.
 
    The Agency's initial claim that under Authority precedent, see
 Association of Civilian Technicians, Alabama ACT and State of Alabama
 National Guard, 2 FLRA 314 (1979), the matters proposed are not
 sufficiently specific and delimited to warrant review is not persuasive.
  The specific proposals in dispute were attached to the petition for
 review and, thus, are properly before the Authority.  Therefore, the
 Agency's motion to dismiss the Union's appeal is denied.  See American
 Federation of Government Employees, AFL-CIO, International Council of
 U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
 Service, 11 FLRA No. 113 (1983).
 
    Union Proposal 1 provides for a joint labor-management committee to
 develop performance expectations for benefit authorizer trainees and
 claims authorizer trainees, establishes interim quantitative and
 qualitative standards for those positions, and sets forth certain
 principles governing the implementation of the standards.  The portion
 of Union Proposal 1 providing for a joint labor-management committee to
 "develop" performance expectations for the specified positions would
 require Union participation in determining the content of those
 standards.  In this regard, it is well established that the
 determination of the content of performance standards is an exercise of
 management's rights to direct employees and assign work under Section
 7106(a)(2)(A) and (B) of the Statute.  /1/ See National Treasury
 Employees Union and Department of the Treasury, Bureau of the Public
 Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees
 Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir.
 1982);  National Treasury Employees Union and NTEU Chapters 153, 161 and
 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983).  It is
 equally well established that union participation in the exercise of
 management's rights through membership on joint labor-management
 committees established to take action pursuant to those rights directly
 interferes therewith, contrary to section 7106 of the Statute.  See
 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 No. 105 (1981), enforced sub nom.
 National Federation of Federal Employees v. Federal Labor Relations
 Authority, 681 F.2d 886 (D.C. Cir. 1982);  National Federation of
 Federal Employees, Local 1431 and Veterans Administration Medical
 Center, East Orange, New Jersey, 9 FLRA No. 139 (1982).  /2/ Therefore,
 by providing for the Union jointly to determine with management the
 content of certain performance standards, Union Proposal 1 would
 directly interfere with management's rights to direct employees and
 assign work and is outside the duty to bargain.  Additionally, by
 providing that disputes within the joint labor-management committee as
 to the content of performance standards shall be submitted to
 arbitration for resolution, this portion of Union Proposal 1 conflicts
 with the Authority's holding 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), affirmed sub nom. American Federation of Government
 Employees, AFL-CIO, Local 1968 v. Federal Labor Relations Authority, 691
 F.2d 565 (D.C. Cir. 1982), cert. denied . . . U.S. . . ., 103 S.Ct. 2085
 (1983), wherein it was determined that critical elements and performance
 standards could not be made subject to arbitral review.
 
    The portion of Union Proposal 1 which sets forth standards of
 productivity for claims authorizer and benefit authorizer trainees in
 terms of numbers of cases and accuracy of result likewise would
 establish the substance of performance standards for those positions.
 As indicated above, the Authority held in National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 768 (1980), affirmed sub nom. National Treasury Employees Union v.
 Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), that a
 proposal establishing the content of performance standards for job
 retention was outside the duty to bargain in that it would directly
 interfere with management's rights to direct employees and assign work
 under section 7106(a)(2)(A) and (B) of the Statute.  Since the portion
 of Union Proposal 1 under consideration here similarly would establish
 the content of performance standards, it is, for the reasons more fully
 stated in Bureau of the Public Debt, outside the duty to bargain.  The
 Union, however, seeks to distinguish the present proposal from the one
 at issue in Bureau of the Public Debt.  In this connection, the Union
 argues that the proposal herein is not concerned with either job
 retention standards or any standards which are part of a performance
 appraisal system established pursuant to chapter 43 of title 5 of the
 United States Code.  The Authority finds that the former distinction as
 to retention standards is not dispositive, see National Treasury
 Employees Union and U.S. Nuclear Regulatory Commission, 13 FLRA No. 49
 (1983), and the second, as to chapter 43 of title 5, is inapposite as to
 a decision based solely on section 7106 of the Statute.
 
    Finally, the portion of Union Proposal 1 prescribing the levels of
 performance which are sufficient to qualify employees for promotion or
 to render their performance unacceptable has the same effect as the
 proposal at issue in American Federation of State, County and Municipal
 Employees, AFL-CIO, Local 26 and U.S. Department of Justice, 13 FLRA No.
 96 (1984).  In that case, the Authority determined that the portion of a
 proposal which would establish the levels of performance in individual
 job elements necessary to the achievement of a given overall rating in
 the evaluation of an employee's performance is an exercise of
 management's rights to direct employees and assign work under section
 7106(a)(2)(A) and (B) of the Statute.  In the instant case, it appears
 that Union Proposal 1 would, among other things, similarly prescribe the
 levels of performance that management must accept, in evaluating an
 employee's performance, which would support an overall finding of
 unacceptable performance.  Thus, Union Proposal 1, for the reasons more
 fully set forth in the Authority's Department of Justice decision,
 likewise would directly interfere with management's rights to direct
 employees and assign work under section 7106(a)(2)(A) and (B) of the
 Statute and is outside the duty to bargain.  /3/
 
                             Union Proposal 2
 
          Claims instructors who are alleged to be unsuitable for the
       position of instructor shall have the right to contest the
       decision through the grievance procedure and be retained in the
       position until the grievance procedure is completed.  They shall
       be if unsatisfactory returned to the claims authorizer position.
 
                             Union Proposal 3
 
          Benefit authorizer instructors who are performing
       unsatisfactorily will be given an opportunity to be reassigned to
       another GS-9 position.
 
    Union Proposal 2 would require management to reassign to the claims
 authorizer position an employee who is found to be performing
 unsatisfactorily as a claims instructor.  In this regard, Union Proposal
 2 has the same effect as a portion of Union Proposal 1 in American
 Federation of Government Employees, Local 1760 and Department of Health
 and Human Services, Social Security Administration Northeast Program
 Service Center, 9 FLRA No. 142 (1982).  In that case the Authority held
 that, by requiring management to assign an employee who was performing
 unsatisfactorily to a like-graded position in order to afford that
 employee an opportunity to perform satisfactorily, the disputed proposal
 directly interfered with management's right to assign employees to
 positions under section 7106(a)(2)(A) of the Statute.  /4/ Therefore,
 since Union Proposal 2 herein, like Union Proposal 1 in Northeast
 Program Service Center, would require the reassignment of an employee
 who is performing unsatisfactorily, it likewise directly interferes with
 the right to assign employees under section 7106(a)(2)(A) and, thus, is
 outside the duty to bargain.
 
    Union Proposal 3 similarly would require management to give a benefit
 authorizer instructor who is performing unsatisfactorily the option of
 being reassigned to another GS-9 position.  That is, the proposal at
 issue would subject the Agency's reserved discretion concerning
 reassignment of an employee to the control of that employee's decision
 to seek reassignment.  In this regard, Union Proposal 3 has the same
 effect as subsection (f) of Provision 5 in International Organization of
 Masters, Mates, and Pilots and Panama Canal Commission, 11 FLRA No. 29
 (1983), which permitted employees themselves, under specified
 circumstances, to assign duties.  The Authority held that by making the
 assignment of work a matter to be decided by employees instead of
 management the provision deprived management of its right to assign work
 under section 7106(a)(2)(B) of the Statute.  Likewise, by giving an
 employee the right to determine that he or she will be reassigned, Union
 Proposal 3 would directly interfere with management's right to assign
 employees under section 7106(a)(2)(A) of the Statute and, thus, is
 outside the duty to bargain.
 
                             Union Proposal 4
 
          Prior to the evaluation of employees under this system each
       employee will receive satisfactory training as determined by
       mutual agreement between Local 1395 and the GLPSC as mandated by
       Article 15, section a of the Master Agreement.  It is agreed that
       a committee for this purpose will be established under Article 15,
       section d.
 
    Union Proposal 4, by requiring the agency to provide mutually
 agreed-upon training to employees as a condition precedent to its
 evaluation of their performance, has the same effect as the proposal at
 issue in American Federation of Government Employees, AFL-CIO, Local
 3004 and Department of the Air Force, Otis Air Force Base,
 Massachusetts, 9 FLRA No. 87 (1982).  In that case, the proposal would
 have required management to provide employees who had duties added to
 their position description specific formal training in those duties
 before evaluating them thereon.  The Authority held that the proposal
 directly interfered with management's right to assign work under section
 7106(a)(2)(B) of the Statute in that it required the agency to provide
 training to employees.  Therefore, by requiring management to provide
 training to employees prior to evaluating them, the type and amount of
 which training would itself be subject to negotiation, Union Proposal 4,
 for the reasons set forth more fully in the Otis Air Force Base
 decision, would directly interfere with management's right to assign
 work under section 7106(a)(2)(B) of the Statute and, thus, is outside
 the duty to bargain.  See also American Federation of Government
 Employees, AFL-CIO, Local 1923 and Department of Health and Human
 Services, Social Security Administration, 9 FLRA No. 122 (1982), in
 which the Authority held that proposals requiring the agency to provide
 specific types of training to unit employees, and prescribing the
 duration thereof, directly interfered with the agency's right to assign
 work under section 7106(a)(2)(B).
 
    By its terms, Union Proposal 5 would establish qualitative ("Extent
 to which work was free from clearly defined error") and quantitative
 ("Amount of work accomplished") performance standards for employees in
 instructor positions.  In this regard, therefore, it has the same effect
 as the union proposal at issue in National Treasury Employees Union and
 Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
 (1980), affirmed sub nom. National Treasury Employees Union v. Federal
 Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), wherein the
 Authority held that the proposal, by establishing the content of a
 performance standard for job retention, directly interfered with
 management's rights to direct employees and assign work under section
 7106(a)(2)(A) and (B) of the Statute.  Since Union Proposal 6 herein
 would similarly establish the content of performance standards, for the
 reasons more fully stated in Bureau of the Public Debt it would likewise
 directly interfere with management's rights to direct employees and
 assign work under section 7106(a)(2)(A) and (B) and, thus, is outside
 the duty to bargain.  /5/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review with
 respect to Union Proposals 1-5 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., May 7, 1984
                                       Barbara J. Mahone, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 Member Haughton concurring:
 
    I concur with the majority decision on the proposals presented in
 this case.  However, I would not like the discussion regarding Union
 Proposal 1 to be regarded as prohibiting or discouraging the
 establishment, by voluntary agreement, of programs providing for
 employee involvement in joint labor-management committees.  These
 programs provide structures whereby employees at all levels are able to
 participate in discussions about their work and to use their knowledge,
 skills and abilities more effectively.  I believe that they should be
 encouraged as being consistent with the promotion of an effective and
 efficient government.
 
    Joint labor-management committees already have been successful in
 many areas.  Private sector firms in such basic industries as auto,
 steel, electrical and telephone have made major commitments to employee
 participation plans as a means of improving both productivity and the
 quality of work life.  The experience in Japan is well known.
 
    In its "Resource Guide to Labor Management Corporation," the U.S.
 Department of Labor lists twelve ongoing programs in the Federal
 government.  To this list must be added the recently negotiated "Quality
 Circles" in the Internal Revenue Service.  One of the best known joint
 programs in the Federal sector was started at the Norfolk Naval Shipyard
 in 1979.  This undertaking has been a substantial success.  A
 publication of the shipyard notes that "Quality and productivity
 improvements are results of employees having more input into decisions
 which affect their day to day work." /6/
 
    I agree that employee involvement type programs cannot be mandated
 under our Statute.  Indeed, I believe that to be successful they can be
 established only by voluntary agreement.  It is in this area of mutually
 agreed upon labor-management activity that I would like to see the
 Federal sector as a leader, not just a follower, of private sector
 developments.  Issued, Washington, D.C., May 7, 1984
                                       Ronald W. Haughton, Member
 
                                 APPENDIX
 
                             Union Proposal 1
 
          25.  A joint Labor-Management Committee will be established to
       study the performance of BA and CA trainees.  This committee will
       have access to all data necessary to establish reasonable
       standards for trainees.  This committee will make quarterly
       reports to revise or retain the present set of performance
       expectations for BA and CA trainees.  This committee will be
       composed of equal members of management and labor.  Should there
       be a disagreement on this committee that cannot be resolved by the
       President of Local 1395 and the Director of Management then the
       dispute shall be resolved through arbitration.  Until this
       committee developes these expectations the following interim
       standards shall be used.  (Who will decide on the basis of whether
       these standards are equitable, fair, reasonable and
       non-discriminatory toward any class of individuals.) /7/
 
          BENEFIT AUTHORIZER TRAINEE G.S.-5
 
          Productivity 3 to 5 cases per day
 
          Payment Accuracy 90 to 98%
 
          Technical Accuracy 80 to 83%
 
          Notice Accuracy 90 to 93%
 
          These are the requirements to get off review and to be
 
 eligible
 
       for promotion to the G.S.-7 position.
 
          G.S.-7 (Requirements for Promotion to Journeyman) /8/
 
          Productivity 7 to 9 cases per day
 
          Payment Accuracy 90 to 92%
 
          Technical Accuracy 89 to 92%
 
          Notice Accuracy 93 to 95%
 
          CLAIMS AUTHORIZER TRAINEE
 
          G.S.-7 (Requirements to get off review and to qualify for
       promotion to Journeyman)
 
          Productivity 7 to 9 cases per day
 
          Payment Accuracy 90 to 92%
 
          Documentation Accuracy 90 to 92%
 
          Notice Accuracy 93 to 95%
 
          Technical Accuracy 89 to 92%
 
          These requirements are based upon the following principles:
 
          1.  A trainee only need attain the required standard of
       performance for his current grade level to be eligible for
       promotion to his next career ladder level.
 
          2.  A trainee must be deficient in a majority of the areas
       measured in the review to be considered not performing acceptably.
 
                           Union Proposal 5 /9/
 
          The standard for this appraisal item represents the level of
       performance which is considered acceptable for a journeyman level
       employee.  An employee who does not meet these requirements should
       receive an "A" for this item.  An employee who usually meets, but
       rarely exceeds these requirements, should be given a "B".  An
       employee who meets and sometimes exceeds these requirements should
       receive a "C".  An employee who exceeds these requirements but not
       to an exceptional degree should receive a "D".  An employee who
       exceeds these requirements to an exceptional degree should receive
       an "E" for the item.
 
          Description:  Extent to which work was free from clearly
       defined error.
 
                                 Standard
 
          (Performance will be considered up to standard when the
       employee:)
 
          Secures and thoroughly examines all information pertinent to
       post-entitlement actions on individual cases, making sound
       decisions consistent with law and regulations and taking effective
       action to implement the decisions.
 
          Provides clear and understandable training to the trainee on
       the various functions of the benefit authorizer position as it is
       presented on the appropriate technical literature issued by the
       Social Security Administration.
 
          Provides the trainee with sound advice on how to perform the
       duties of the benefit authorizer.
 
          Correctly analyzes and presents new procedures to trainees or
       journeymen if required.  May be called upon to develop new
       training packages.
 
                         Indicators of Performance
 
          (This item can be displayed in various ways such as the manner
       in which the employee:)
 
          Makes decisions consistent with law and regulation.
 
          Applies established policy and procedure to post-entitlement
       cases.
 
          Prepares correspondence reports and records.
 
          Conducts effective training by presenting training material
       clearly and understandably.
 
                        Performance Review Summary
 
          (Was performance level measured?  To what degree?  Reasons
       performance was above/below standard.  Suggestions for improving
       level of performance.)
 
                                .  .  .  .
 
          The standard for this appraisal item represents the level of
       performance which is considered acceptable for a journeyman level
       employee.  An employee who does not meet these requirements should
       receive an "A" for this item.  An employee who usually meets, but
       rarely exceeds these requirements, should be given a "B".  An
       employee who meets and sometimes exceeds these requirements should
       receive a "C".  An employee who exceeds these requirements but not
       to an exceptional degree should receive a "D".  An employee who
       exceeds these requirements to an exceptional degree should receive
       an "E" for the item.
 
          Description:  Amount of Work accomplished.
 
                                 Standard
 
          (Performance will be considered up to standard when the
       employee:)
 
          Makes documents and sends notification of post-entitlement
       actions.
 
          Completes assignments timely.
 
          Presents training material within reasonable time frames.
 
          Will deviate from established time frames when reasonable to do
       so.
 
                         Indicators of Performance
 
          (Does the employee?)
 
          Contribute to the module's productivity goals for
       post-entitlement work.
 
          Class instructions completed within reasonable time frames.
 
                        Performance Review Summary
 
          (Was performance level measured?  To what degree?  Reasons
       performance was above/below standard.  Suggestions for improving
       level of performance.)
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7106(a)(2)(A) and (B) of the Statute provides, in
 relevant part, as follows:
 
          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 agency--
 
                                .  .  .  .
 
          (2) in accordance with applicable laws--
 
          (A) to . . . direct . . . employees in the agency . . . ;
 
          (B) to assign work(.)
 
 
    /2/ Cf. American Federation of Government Employees, AFL-CIO, Local
 3804 and Federal Deposit Insurance Corporation, Chicago Region,
 Illinois, 7 FLRA No. 34 (1981) (Union Proposal 6) (joint
 labor-management committee with limited power to make recommendations
 for changes in performance appraisal system negotiable as a procedure
 under section 7106(b)(2) of the Statute).
 
 
    /3/ Cf. National Treasury Employees Union and NTEU Chapter 72 and
 Internal Revenue Service, Austin Service Center, 11 FLRA No. 58 (1983),
 (Union Proposal 2) (proposal established a criterion for evaluating an
 employee's ability to perform higher graded work for use in connection
 with decision to promote the employee to that higher grade.) Unlike
 Union Proposal 2 in Austin Service Center, which merely established
 guidelines for predicting an employee's ability to perform the work of a
 higher grade level, the proposal at issue herein clearly would limit the
 level of performance management could require of an employee in that
 employee's current position.
 
 
    /4/ Section 7106(a)(2)(A) provides, in relevant part, as follows:
 
          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 agency--
 
                                .  .  .  .
 
          (2) in accordance with applicable laws--
 
          (A) to . . . assign . . . employees in the agency(.)
 
 
    /5/ With respect to the Union's contentions that Union Proposal 5 is
 within the duty to bargain because it does not establish a standard for
 job retention, because it does not concern standards established
 pursuant to chapter 43 of title 5 of the United States Code, or because
 it establishes a standard for eligibility for promotion, see, supra, pp.
 3-4.
 
 
    /6/ "Report of Implementation and Progress of the Quality Circle
 Program at Norfolk Naval Shipyard," Productivity Programs Office,
 Norfolk Naval Shipyard, p. 13, June 1981.
 
 
    /7/ The bracketed material is a handwritten addition to the Union's
 proposal as found in the record herein.  Its significance with respect
 to the remainder of the proposal is unclear but, in any case, would not
 be dispositive.
 
 
    /8/ The numerical figures in this portion of the proposal are amended
 in accordance with Union notice to the Agency as found in the record
 herein.
 
 
    /9/ While it is not entirely clear from the record, based primarily
 on the wording of the standards set forth herein, it appears that Union
 Proposal 5 sets forth the