19:0093(9)NG - AFGE Local 32 and OPM -- 1985 FLRAdec NG
[ v19 p93 ]
The decision of the Authority follows:
19 FLRA No. 9 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case Nos. O-NG-962, O-NG-967, and O-NG-986 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petitions for review in these cases come before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and present issues concerning the negotiability of five Union proposals. Upon careful consideration of the entire record, /1/ including the parties' contentions, the Authority makes the following determinations. /2/ Union Proposal 1 (from Case No. O-NG-962) Employees will not be penalized for any failure or malfunction of automation equipment which is outside their control. Union Proposal 2 (from Case No. O-NG-967) Employees will not be penalized for matters outside their control such as "down time" in their performance appraisals, and given instructions on how to maintain productivity during such periods. Union Proposal 3 (from Case No. O-NG-986) The performance standards will take into account the fact that employees are not responsible for circumstances regarding case control and desk organization which are outside their control. It is well established that, while proposals establishing a general, nonquantitative requirement by which the application of management-developed performance standards could be evaluated in a subsequent grievance proceeding are within the duty to bargain, /3/ proposals which restrict management's authority to establish performance standards themselves are inconsistent with the rights to assign work and to direct employees pursuant to section 7106(a)(2)(A) and (B) of the Statute. /4/ In this regard, the Authority finds that the proposals here in dispute seek to negotiate on the content of performance standards themselves. That is, each of the three proposals describes a specific work situation which is "outside their (the employees') control" and seeks to insulate the employees from penalties attributable to the occurrence of such circumstances. The proposals are not limited to the assessment in a grievance arbitration of the application of standards established by management. Rather, pursuant to these proposals, arbitral scrutiny in a given proceeding would extend to inquiry into whether the relevant performance standards themselves make the appropriate allowances for the situations described. Moreover, 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, the proposals, by their terms, would permit investigation by an arbitrator into whether the alternate assignments and/or the related performance standards have an adverse impact on unit employees. Because the three disputed proposals would, in effect, provide for arbitral review of the content of performance standards and, by extension, examination of work assignments and would permit arbitrators to substitute their judgment for that of the Agency, they restrict management's authority to establish performance standards and to assign work. For these reasons they are to the same effect as Union Proposal 4 in Saint Lawrence Seaway Development Corporation. Consequently, based on Saint Lawrence Seaway Development Corporation, and the reasons and case cited therein, Union Proposals 1, 2, and 3 are outside the duty to bargain. Union Proposal 4 (from Case No. O-NG-962) Every effort will be made to create bridge positions and expand opportunities in OPI (Office of Personnel Investigations). /5/ (Footnote added.) The Union asserts that the intent of this proposal is to obtain Agency compliance with 29 CFR 1613.203(c) (1984) which requires agencies to: (c) (u)tilize to the fullest extent the present skills of employees by all means, including the redesigning of jobs where feasible so that tasks not requiring the full utilization of skills of incumbents are concentrated in jobs with lower skill requirements(.) It also appears, based on the record, that the "bridge positions" referred to in the proposal would be positions established at certain grade levels permitting employees to progress "from lower graded positions to higher graded positions." /6/ The Agency contends that Union Proposal 4 is inconsistent with the reserved right, pursuant to section 7106(a)(1) of the Statute, to determine its organization. It further asserts: To require an agency to make its best effort to accomplish a certain goal limits its discretion to define and pursue objectives adjudged more worthy by management. Given available funds, an agency would be constrained, under the terms of this proposal, to create a bevy of bridge positions, even if it were not of a mind to do so. It would be compelled to act in accordance with the Union's organizational preferences, and not its own, even if this would not further the efficient conduct of the agency's business. /7/ (Footnote added.) The Union does not dispute the Agency's interpretation of the proposal's purpose and effect. Thus, it is concluded that the proposal would place a high priority on management's organizing in the manner described and consequently would prevent management from structuring its organization without "bridge positions" even if such structure was deemed by management to foster maximum productivity. Viewed in this light, Union Proposal 4 is to the same effect as Union Proposals 1, 5, 6 and 7 which were before the Authority in American Federation of Government Employees, AFL-CIO, Local 3742 and Department of the Army, Headquarters, 98th Division (Training), Webster, New York, 11 FLRA 189 (1983). The Authority found the four cited proposals in that case to be inconsistent with management's right to determine its organization because the proposals were "designed to require that the Agency establish its organization structure in a manner which will assure promotional opportunities for its civilian technician employees." Because Union Proposal 4 similarly seeks an organizational structure providing for promotional opportunities, to the exclusion of other structures deemed more appropriate by management, it, too, is inconsistent with the right of the Agency to determine its organization pursuant to section 7106(a)(1) of the Statute. Consequently, based on 98th Division, the proposal is outside the duty to bargain. The Union's argument that proposal 4 is authorized by 29 CFR 1613.203(c) does not alter this finding. It is noted that the cited regulation does not mandate that employees be given promotional opportunities to the exclusion of other factors management may need to consider in determining its optimum organization. Rather, the cited regulation only requires that management utilize the present skills of its employees to the fullest extent by assigning less demanding work to positions with lesser skill requirements. Moreover, the regulation requires that such realignment of tasks be undertaken "where feasible," i.e., when consistent with other organizational considerations. Union Proposal 5 (from Case No. O-NG-986) The application of the training memo will be fair and consistent within sections and from section to section. The record does not reveal the exact purpose and effect of the "training memo" referred to in Union Proposal 5. However, it appears from the sparse information available, the Union having filed no reply brief in the case, that the memo sets forth procedures to be followed by employees in carrying out their work assignments. Thus, the Agency asserts: "Although we do not know what meaning the Union intends by the general, indeterminate requirement of 'fair and consistent,' it seems reasonably designed to require a predictable and concrete set of requirements within the various units and sections, regardless of managerial needs." /8/ Based on the available information, the Authority is persuaded that the referenced training memo is a vehicle used by the Agency in directing employees and assigning work. In this regard, the Authority defined those two management rights, embodied in section 7106(a)(2)(A) and (B) of the Statute, in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The Authority there stated that "the right 'to direct . . . employees in the agency' means to supervise and guide them in the performance of their duties on the job." The right to assign work, the Authority observed, "is composed of two discretionary elements: (1) the particular duties and work to be assigned, and (2) the particular employees to whom or positions to which it will be assigned." Thus, the Union's effort, by means of this proposal, to negotiate on the subject memo is an attempt to negotiate on how the underlying management rights shall be exercised, and the fact that management has decided to articulate by means of training memo how the underlying management rights will be exercised does not subject either that document or the underlying rights to negotiation. Cf. American Federation of Government Employees, AFL-CIO, Local 1603 and Navy Exchange, Naval Air Station, Patuxent River, Maryland, 9 FLRA 1039, 1040 (1982) (wherein the Authority noted that an agency regulation, setting out how management will exercise a right reserved to it by section 7106(a)(2)(A) of the Statute, is not subject to a compelling need challenge under section 7117(a)(2) because bargaining on a contrary proposal is barred by the proposal's inconsistency with the underlying management right). Moreover, the fact that management has opted to organize its work in a certain manner, does not authorize bargaining on a proposal which would bind management not to deviate from that scheme. In this regard, the Authority held to be outside the duty to bargain a proposal in International Association of Fire Fighters, Local F-215 and Headquarters, 15th Infantry Division (Mechanized), Fort Polk, Louisiana, 8 FLRA 417 (1982), which would have, in effect, barred the assignment to fire station employees of any duties not related to the fire fighting function. The proposal was found to interfere with management's right to assign work. Consequently, because it is inconsistent with the management rights to direct employees and to assign work, pursuant to section 7106(a)(2)(A) and (B) of the Statute, Union Proposal 5, herein, is outside the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petitions for review in Case Nos. O-NG-962, O-NG-967 and O-NG-986 be, and they hereby are, dismissed. Issued, Washington, D.C., July 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union filed a Reply Brief only in Case No. O-NG-962. /2/ In addition to proposals unique to that case, each of these three cases contains one proposal presenting a common issue. Thus, the Authority deemed it appropriate to consolidate these cases in the interest of expeditious processing. /3/ American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Union Proposal 5). /4/ American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981) (Union Proposals 1 and 2), aff'd sub nom. American Federation of Government Employees, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 461 U.S. 926 (1983). /5/ The Union's request for a hearing, pursuant to section 7117(c)(5) of the Statute, assertedly to prove that women and minorities are underrepresented in higher grade positions in the Agency and that the progress of such employees is impeded by a lack of "bridge positions" is hereby denied. The existence of such circumstances is not material to making a negotiability determination on Union Proposal 4. /6/ Union Reply Brief (in Case No. O-NG-962) at 3. /7/ Agency Statement of Position (in Case No. O-NG-962) at 6. /8/ Agency Statement of Position (in Case No. O-NG-986) at 3.