15:0003(1)NG - AFGE Local 1708 and Military Ocean Terminal, Sunny Point, Southport, NC -- 1984 FLRAdec NG



[ v15 p3 ]
15:0003(1)NG
The decision of the Authority follows:


15 FLRA NO. 1


AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1708

     Union

     and

MILITARY OCEAN TERMINAL,
SUNNY POINT, SOUTHPORT,
NORTH CAROLINA

     Agency

Case No. 0-NG-580

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
presents issues relating to the negotiability of three Union
proposals. Upon careful consideration of the entire record,
including the parties' contentions, the Authority makes the
following determinations.

Union Proposal 1

     There shall be no secret studies bearing on performance
standards. All studies conducted by the employer will be
conducted on average workers under normal working conditions. The
Union shall be allowed to have an observer present in the
development or revision of all measures of performance and
studies. All information derived from such work studies will be
provided to the union within five (5) days of completion of the
study. The Union shall have the right to conduct independent time
studies during duty hours in addition to receiving all documents
and data used in developing performance standards. 

     The first two sentences of Union Proposal 1 herein are
identical to the provisions of Union Proposal 4 in American
Federation of Government Employees, AFL - CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois,
7 FLRA 217 (1981). In FDIC, the Authority found that those
provisions did not prevent the Agency from establishing
particular performance standards pursuant to its rights under
section 7106(a)(2)(A) and (B) of the Statute to direct employees
and assign work. For the reasons set forth in FDIC, the Authority
finds that the Agency's contention that the first two sentences
of Union Proposal 1 interfere with its rights to direct employees
and assign work through the establishment of performance
standards must be set aside.

     Nor can the Agency's additional argument that these
particular provisions interfere with its right to determine
methods and means of performing work be sustained. While the
Agency asserts that assessment of the quality and quantity of
work performed by its employees is an integral and essential part
of its mission, which it describes as the movement of freight for
the military services, it has not shown how negotiation of the
procedures used to develop performance standards would directly
interfere with its ability to determine the methods or means of
moving freight for the military services. Rather, it has merely
shown an incidental and indirect relationship to the performance
of its work. Clearly, the record does not establish that the
subject studies constitute an instrument used for the
accomplishing or the furthering of the performance of the work of
the Agency. Cf. National Treasury Employees Union and U.S.
Customs Service, Region VIII, San Francisco, California, 2 FLRA
255 (1979) (the name plates worn by Customs officers constitute
an instrument used to accomplish that aspect of the work of a
Customs officer which involves contact with the public). For the
foregoing reasons the Authority finds that the first two
sentences of the proposal are within the duty to bargain.

     The Union has not explained what is contemplated by the
third sentence of the proposal. The Agency contends that this
sentence would require Union involvement in internal management
deliberations regarding the determination of performance
standards. This interpretation is compatible with the terms of
the proposal taken on its face and therefore is adopted for
purposes of this decision. In this regard the proposal appears,
among other things, to create a requirement that the Union be
allowed to be present at management proceedings relating to the
development and revision of performance standards.

     The establishment of performance standards is an exercise of
management's rights under section 7106(a)(2)(A) and (B) of the
Statute to direct its employees and assign work. National
Treasury Employees Union and Department of the Treasury,
Bureau of the Public Debt, 3 FLRA 769 (1980), enf'd sub nom.
National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C.
Cir. 1982). Inasmuch as the third sentence of the proposal would
require 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, it is to
the same effect as Union Proposal 3 discussed in 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) enf'd sub
nom. National Federation of Federal Employees v. FLRA, 681 F.2d
886 (D.C. Cir. 1982). For the reasons expressed in Homestead Air
Force Base, the Authority finds that the third sentence of the
proposal would directly interfere with management's rights under
section 7106(a) of the Statute and is, therefore, not within the
duty to bargain.

     The fourth sentence of the proposal is substantially
identical to Union Proposal 5 addressed in FDIC (cited earlier
herein). For the reasons stated in FDIC, and contrary to the
Agency contentions that it would interfere with its rights to
assign employees, assign work and determine the methods and means
of performing work, the Authority finds that the fourth sentence
is within the duty to bargain.

Union Proposal 2

     Production studies or goals shall not be translated into
performance standards (e.g., work units per person) unless the
following conditions are fully satisfied:

     (1) The work performed is repetitive and capable of being
done uniformly by all workers in the unit being measured.

     (2) Job content is constant throughout the appraisal
period.

     (3) The method of operation, service and work unit produced
is capable of being objectively, reliably, and accurately
measured.

     (4) The work units measured are equivalent.

     The Union does not explain what is specifically meant by the
proposal, arguing only that it is intended to establish a
mutually acceptable procedure to be employed by the Agency in
establishing and administering its performance appraisal system.
However, the proposal, by its plain language, would prevent the
Agency from establishing performance standards based on
production goals unless the conditions described in the
proposal exist. Thus, the Union seeks to negotiate the substance
of performance standards by proposing limitations on the
inclusion of certain matters in performance standards. In this
regard the proposal is to the same effect as those addressed in
National Federation of Federal Employees and U.S. Army Armament
Research and Development Command, Dover, New Jersey, 8 FLRA No.
88 (1982). In that case the Authority, relying on American
Federation of Government Employees, AFL - CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 3 FLRA 784
(1980) (Union Proposal 4), found those proposals which restricted
management in its establishment of performance standards outside
the duty to bargain since they infringed upon management's
discretion to direct employees and to assign work under section
7106(a) of the Statute. 1 Thus, for the reasons set forth in
Office of Personnel Management, the Authority finds in agreement
with the Agency that Union Proposal 2 is outside the duty to
bargain because it directly interferes with the Agency's rights
to direct employees and assign work under section 7106(a)(2)(A)
and (B) of the Statute. 2

Union Proposal 3

     Unacceptable Performance. If remedial actions for
unacceptable performance as defined in 5 USC 4303 is (sic)
necessary, that action shall be progressively applied as
follows:

     a. Providing training.

     b. Reassigned to another appropriate position at the same
grade level, and at the same commuting area.

     c. Demotion.

     d. Termination. 

     The proposal on its face would prescribe specific actions to
be taken against an employee if the Agency determines that action
is warranted based on unacceptable performance. The proposal
would further establish that as a prerequisite to taking more
serious action, such as demotion and termination, actions of
lesser gravity, such as training and lateral reassignment, must
occur. The actions involved entail the exercise of various rights
reserved to management pursuant to section 7106(a) of the
Statute. In this connection, proposals which would contractually
obligate an agency to provide, or assign employees to, training
are outside the duty to bargain because the assignment of
training constitutes an assignment of work within the meaning of
section 7106(a)(2)(B). See 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) and
cases cited therein. Proposals which would require that employees
be reassigned from their current positions conflict with
management's right under section 7106(a)(2) to assign employees.
See American Federation of Government Employees, Local 1760 and
Department of Health and Human Services, Social Security
Administration, Northeast Program Center, 9 FLRA No. 142 (1982)
(Union Proposal 1); National Federation of Federal Employees,
Local 1624 and Air Force Contract Management Division,
Hagerstown, Maryland, 3 FLRA 142 (1980). Proposals which would
directly interfere with management's ability to demote and
terminate employees conflict with management's rights under
section 7106(a)(1) to reduce in grade and remove employees. See
Social Security Administration, Northeast Program Service
Center.

     Thus, the effect of the proposal would be to condition the
exercise of specified management rights on the prior exercise of
others. The proposal therefore is materially to the same effect
as Union Proposal 1 discussed in Social Security Administration,
Northeast Program Service Center which the Authority found to
conflict with section 7106(a)(2)(A) of the Statute. In this
regard, contrary to the Union's argument that this proposal is
procedural in nature, the Authority finds that this proposal like
Union Proposal 1 in Social Security Administration, Northeast
Program Service Center, instead concerns the substantive exercise
of management's rights. Cf. American Federation of State, County
and Municipal Employees, AFL - CIO, Local 2910 and Library of
Congress, 11 FLRA No. 109 (1983) (Union Proposal 5) (a proposal
which provided that employees faced with adverse action based on
unsatisfactory performance "be given a reasonable opportunity to
improve their performance before being subject to adverse
action," rather than requiring, as would the proposal herein,
that management exercise particular management rights as a
preliminary to exercising others, would only require a
delay in the exercise of a given management right and, thus, did
not conflict with that management right). For the reasons
expressed in Social Security Administration, Northeast Program
Service Center the Authority finds that Union Proposal 3 is
outside the duty to bargain. 3

     Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations, IT IS ORDERED that the petition for
review, as it relates to Union Proposal 2, 3 and the third
sentence of Union Proposal 1 be, and it hereby is, dismissed. IT
IS FURTHER ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain on the remaining
portions of Union Proposal 1. 4

Issued, Washington, D.C., June 6, 1984

Barbara J. Mahone, Chairman

Ronald W. Haughton, Member

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY



FOOTNOTES

Footnote 1 Cf. Office of Personnel Management (Union
Proposal 5)   wherein the Authority found that a proposal which
merely established a   general, nonquantitative requirement by
which the application of   performance standards could be
evaluated was within the duty to   bargain.

Footnote 2 In view of this decision it is unnecessary to
address   the Agency's