23:0329(43)NG - AFGE, General Committee of AFGE for SSA Locals and SSA -- 1986 FLRAdec NG



[ v23 p329 ]
23:0329(43)NG
The decision of the Authority follows:


 23 FLRA No. 43
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, GENERAL COMMITTEE
 OF AFGE FOR SSA LOCALS
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-860
 
                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), and concerns the
 negotiability of eight Union proposals.
 
                           II.  Procedural Issue
 
    The Agency specifically acknowledged that its Statement of Position
 was not filed within the time limits established by section 7117(c)(3)
 of the Statute and section 2424.6 of the Authority's Rules and
 Regulations.  However, the Agency did not specifically allege or
 establish that the events occasioning the untimely filing were
 "extraordinary circumstances" warranting a waiver of time limits under
 section 2429.23(b) of the Rules and Regulations.  Consequently, the
 untimely Statement of Position has not been considered in deciding this
 case.  Further, the Agency head's determination on the disputed
 proposals did not include any rational supporting the allegations that
 the proposals were not negotiable.
 
                          III.  Union Proposal 1
 
          Employees subject to the Service Observation monitoring shall
       normally only be the subject of one (1) such Service Observation
       during each six month period commencing from the effective date of
       the agreement.
 
                         A.  Position of the Union
 
    The Union, in its Reply Brief, characterizes this proposal as "a
 general procedure to be followed after the agency has made its
 substantive decision to conduct service monitoring." The effect of the
 proposal is explained in the following manner:
 
          This proposal would establish the normal frequency that
       employees would be subject to telephone monitoring.  While the
       proposal sets this frequency at "normally" once every six (6)
       months the agency retains the right to perform service monitoring
       more or less often.  Further, management would retain full
       discretion to determine who would be monitored, by whom and when.
 
                               B.  Analysis
 
    Based primarily on the Union's statements as to the intent and effect
 of Union Proposal 1, the Authority finds that it is not materially
 different from Proposal 7 under the heading "Measuring Productivity" in
 American Federation of Government Employees, Local 1760, AFL-CIO and
 Department of Health and Human Services, Social Security Administration,
 15 FLRA 909 (1984), rev'd as to other matters, Decision and Order on
 Motion for Reconsideration, (June 19, 1985).  Proposal 7 in that case,
 deemed to be illustrative rather than restrictive, provided that
 employee's work products would be subject to "normal quality checks that
 are normally utilized." The Authority concluded, in effect, that use of
 the words, "normal" and "normally" in that proposal did not inhibit the
 agency in employing more rigourous scrutiny of employees' work when
 closer review was warranted.  Thus, the Authority found the proposal to
 be within the duty to bargain because it did not interfere with
 management's rights to direct employees, to assign work and to determine
 the methods and means of performing work.  In like manner, Union
 Proposal 1 in this case is within the duty to bargain.
 
                              C.  Conclusion
 
    Based on the rational in Social Security Administration, and the
 Authority's interpretation of the proposal's purpose in that case, Union
 Proposal 1 in this case is within the duty to bargain.
 
                           IV.  Union Proposal 2
 
          Any subjective term such as "courtesy" will have a universally
       accepted meaning accepted by all parties to this agreement and
       will be applied consistently in all affected SSA localities
       nationwide.
 
                         A.  Position of the Union
 
    The Union describes this proposal as establishing "general,
 nonqualitative criteria on which subjective performance standards will
 be based." The proposal, according to the Union, leaves the Agency with
 sole discretion to decide to use such subjective terms in evaluating
 performance, but requires a jointly developed standardized definition of
 such terms should management decide to use them. The Union asserts that
 its proposal is similar to proposals found negotiable by the Authority
 in National Treasury Employees Union and Department of the Treasury,
 Internal Revenue Service, 7 FLRA 235 (1981), in that its proposal also
 seeks to standardize performance requirements "to prevent arbitrary,
 capricious and inconsistent management practices."
 
                               B.  Analysis
 
    The Union's attempt to analogize its proposal to proposals
 (presumably Union Proposals 1 through 5) in Internal Revenue Service is
 unpersuasive.  In the cited case, the proposals only addressed the
 method of counting work production and left with management discretion
 to establish quantitative performance standards within the accounting
 procedures established by the proposals.  Union Proposal 2 however,
 presents a different issue because "courtesy" has a qualitative rather
 than quantitative connotation.  /1/ By negotiating on the meaning of
 that word, as the proposal would require (note the requirement that the
 meaning "be accepted by all parties to this agreement"), the Union would
 be participating in defining what is acceptable performance with respect
 to that aspect of employee performance.  Thus, as the proposal requires
 a performance standard to be established by means of collective
 bargaining, it is inconsistent with management's rights to direct
 employees and to assign work pursuant to section 7106(a)(2)(A) and (B)
 of the Statute.  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
 Proposal 3), aff'd sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C.
 Cir. 1982), cert. denied, 461 U.S. 926 (1983).
 
                              C.  Conclusion
 
    Based on the reasoning and case cited in Saint Lawrence Seaway
 Development Corporation, Union Proposal 2 is inconsistent with
 management's rights to assign and direct employees under sections
 7106(a)(2)(A) and (B) of the Statute.
 
                           V.  Union Proposal 3
 
          There will be no secret studies.  All studies will be conducted
       on average workers under normal working conditions.
 
                         A.  Position of the Union
 
    The Union asserts that its proposal is "nearly identical" to the
 first paragraph of Union Proposal 4, found to be negotiable in American
 Federation of Government Employees, AFL-CIO. Local 3804 and Federal
 Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217
 (1981).
 
                               B.  Analysis
 
    The record establishes that the words "average workers" in Proposal 3
 are intended to convey the same meaning as "typical workers" in
 pargaraph 1 of Union Proposal 4 found negotiable in Federal Deposit
 Insurance Corporation.  Thus, the Authority finds Union Proposal 3 in
 this case is to the same effect as paragraph 1 of Union Proposal 4 in
 Federal Deposit Insurance Corporation.  The Authority found the cited
 part of the proposal in that case, barring secret studies and requiring
 that studies be conducted on "typical workers under normal working
 conditions," to be a negotiable procedure management would observe in
 developing performance standards.
 
                              C.  Conclusion
 
    Based on the reasoning and case cited in Federal Deposit Insurance
 Corporation, Union Proposal 3 in this case is a negotiable procedure
 under section 7106(b)(2).
 
                           VI.  Union Proposal 4
 
          Errors involving judgmental or discretionary issues will be for
       informational purposes only.
 
                         A.  Position of the Union
 
    The Union explains that published Agency guidance frequently lists
 alternative permissable actions to be taken by an employee in a specific
 situation, and that the Agency considers all such alternatives proper.
 According to the Union, the purpose of its proposal is to protect
 employees from the adverse effect of choosing an authorized alternative
 with which the employee's supervisor subsequently disagrees.  The Union
 points out that the proposal would not prevent management from deciding
 which situations may be handled in more than one way.  Nor is management
 prohibited from determining what the allowable options are.  The
 proposal would only apply after those decisions are reached.
 
                               B.  Analysis
 
    Union Proposal 4, in essence, is intended to protect employees who
 take actions in reliance on available Agency guidance when, upon review,
 the employee's supervisor disagrees with the course of action selected,
 although that action was among those prescribed by the Agency.  While
 the proposal would not obligate management to communicate to employees
 what options, among those authorized, are preferred in various
 circumstances, failure to communicate a preference would, in effect,
 prevent the Agency from subsequently finding unacceptable an employee's
 choice among alternatives it had already identified as acceptable.
 
    An Agency is required by 5 U.S.C. Section 4302 to develop a
 performance appraisal system which, among other things, provides for
 establishment of performance standards and identification of critical
 elements and obligates management to communicate those standards and
 critical elements to affected employees.  Proposal 4 clearly does not
 interfere with the Agency's authority to identify critical elements or
 to set performance standards.  Nor does Proposal 4 protect employees
 from negative evaluations if they fail or refuse to seek advice, when
 directed by management, in selecting from among authorized options in a
 given case.  Additionally, the proposal does not apply to an employee
 who fails to select the known preferred option from among authorized
 alternatives, nor does it prevent the Agency from eliminating options or
 from identifying one or more available options as preferable to the
 others in certain circumstances.  Consequently, there is no interference
 with the rights to assign work or to direct employees pursuant to
 section 7106(a)(2) of the Statute.  Rather, the Authority views Union
 Proposal 4 as being similar in effect to Union Proposal 5 in American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, Washington, D.C., 3 FLRA 784 (1980), which was
 construed as requiring that performance standards be applied in a "fair
 and equitable" manner.  Noting in that case that "the proposal . . .
 does not impose on the Agency a particular decision as to the quantity,
 quality, and timeliness of production or the establishing of priorities,
 or otherwise establish the content of performance standards," the
 Authority concluded that the proposal was within the duty to bargain "as
 an appropriate arrangement for employees adversely affected by
 management's authority under the Statute to direct employees and assign
 work through establishment of performance standards and to discipline
 employees for unacceptable performance."
 
    In reaching this conclusion, the Authority stresses that it is
 relying solely upon the union's explanation that employees are given
 alternative courses of action and have the freedom to select any
 alternative so identified by the Agency.  Similarly, the Authority notes
 the absence in the record of any explanation by the Agency as to the
 role in employee's judgment is expected to play in selecting among
 alternatives.  There is no indication that the Agency has identified the
 exercise of sound judgment in choosing among alternative courses of
 action as a critical element of the positions involved.  This is not to
 say, however, that an agency in exercising its reserved management
 rights cannot make the exercise of sound judgment a critical element and
 establish standards of performance for that element.  Such actions would
 be outside the duty to bargain.
 
                              C.  Conclusion
 
    Therefore, the Authority finds Union Proposal 4, in those
 circumstances, to be a negotiable "appropriate arrangement" within the
 meaning of section 7106(b)(3) of the Statute.
 
                          VII.  Union Proposal 5
 
          Each technician will be given an appropriate list of errors,
       each defined in such a manner that all affected parties to this
       agreement will have a common understanding of what they are and
       how they will be applied.  Any error definition will be applied
       consistently to all affected employees, regardless of location
       nationwide.
 
                         A.  Position of the Union
 
    According to the Union, this proposal would require the Agency to
 furnish each bargaining unit employee with a list of errors applicable
 to his or her work and would further require that the errors be defined
 in a manner understandable to all parties to the agreement.  The Union
 points out that management would retain the authority to identify errors
 and that management would not need to negotiate over the definitions.
 The proposal only requires that the definitions be understood in both
 their meaning and application and that they be applied consistently
 throughout the bargaining unit.
 
                               B.  Analysis
 
    Adopting the Union's explanation, which is consistent with the
 language of the proposal itself, the Authority concludes that the
 purposes of the proposal are to assure that employees are informed of
 what errors the Agency has determined are applicable to their jobs and
 to ensure that those employees understand what constitute errors.  Thus,
 Union Proposal 5 is similar in purpose to those proposals, found
 negotiable by the Authority, requiring management to give notice to
 employees of which elements of their jobs will be subject to performance
 rating and which of those elements are deemed by management to be
 critical.  Specifically, in American Federation of Government Employees,
 AFL-CIO. Local 3028 and Department of Health and Human Services, Public
 Health Service, Alaska Area Native Health Service, 13 FLRA 697 (1984),
 the Authority observed that such proposals merely obligate management to
 comply with the statutory requirement that performance standards and
 critical elements be communicated to employees.
 
                              C.  Conclusion
 
    The Authority finds, therefore, that Union Proposal 5 constitutes a
 "procedure" within the meaning of section 7106(b)(2) to be followed by
 management in directing employees and assigning work through application
 of its performance appraisal system.  Consequently, the proposal is
 within the duty to bargain.
 
                          VIII.  Union Proposal 6
 
          Evaluative conclusions based upon the observation of any
       employee must be supported and accompanied by evidence gathered by
       valid, objective commonly accepted and understood evaluative
       techniques.  This other evidence must be sufficient to leave no
       reasonable doubt that the evidence does indeed represent improper
       activity or inefficiency by the employee.
 
                         A.  Position of the Union
 
    The Union contends that this proposal is "equivalent" to the proposal
 the Authority held to be negotiable in National Treasury Employees Union
 and Internal Revenue Service, 8 FLRA 30 (1982), in that its proposal is
 neither intended to dictate what evaluative techniques the Agency is to
 use in evaluating employee performance nor to change the quantum of
 proof necessary to impose performance based discipline on employees.  It
 characterizes Union Proposal 6 as establishing a general,
 nonquantitative standard and suggests that its proposal is negotiable
 pursuant to the Authority's holding with respect to Union Proposal 5 in
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980).
 
                               B.  Analysis
 
    The Authority finds Union Proposal 6 to be to the same effect as the
 proposal held negotiable in the cited Internal Revenue Service case.  In
 the cited case, the Authority determined that the proposal merely
 required that management validate its selected measurement techniques by
 application of other, established observation methods.  As with the
 Internal Revenue Service proposal, the disputed proposal in this case
 does not purport to interfere with the Agency's selection of evaluation
 methods, nor does it preclude management's taking personnel actions
 based on application of those methods.  Further this proposal likewise
 does not seek negotiation over critical elements or performance
 standards.
 
    The primary thrust of the proposal is to assure the validity and
 objectivity of management's selected measurement techniques.  A similar
 objective was found to be a negotiable "appropriate arrangement" in
 Office of Personnel Management where Union Proposal 5 sought to require
 management to apply the performance standards it had established in a
 fair and equitable manner.  The proposal therefore was held to be within
 the scope of section 7106(b)(3) of the Statute.
 
                              C.  Conclusion
 
    Therefore, based on the reasoning in the cited Internal Revenue
 Service and Office of Personnel Management cases, Union Proposal 6
 constitutes a negotiable appropriate arrangement in accordance with
 section 7106(b)(3) of the Statute for employees adversely affected by
 management's exercise of reserved rights.
 
                           IX.  Union Proposal 7
 
          Employees who deal with claimants/beneficiaries whose primary
       language is not English, will not be disadvantaged by their less
       frequent use of Direct Contact and lack of Service Observation.
 
                         A.  Position of the Union
 
    The Union explains that telephone contacts with clients whose primary
 language is not English are less frequent than with English speaking
 clients because of the communication difficulties involved.
 Consequently, management's opportunity to use its telephone monitoring
 technique in evaluating employees dealing with non-English speaking
 clients is reduced.  Therefore, according to the Union, the proposal is
 intended to protect employees who, because of the nature of the work
 assigned them, do not provide management with the opportunity to employ
 telephone monitoring to the same extent that it is used in evaluating
 other employees.
 
                               B.  Analysis
 
    The Authority finds that Union Proposal 7 deals with consequences
 arising from the nature of the work assigned.  That is, the proposal
 requires management to take into consideration the fact that there will
 be reduced opportunities to use telephone monitoring as a method of
 performance evaluation when it assigns employees to work with clients
 who communicate poorly in English.  Hence, the proposal is similar in
 purpose and effect to the portion of Union Proposal 2 in American
 Federation of Government Employees, AFL-CIO;  Local 3804 and Federal
 Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217
 (1981) which required that agency performance standards "make allowances
 for factors beyond the control of the employee." The Authority found
 that the quoted part of the proposal was merely a more specific
 description of the "fair and equitable" criterion enunciated in Office
 of Personnel Management (3 FLRA 784) and "would apply only in the
 context of the application to an employee of performance standards
 established by management." Therefore, the Authority concluded that the
 "allowance" requirement was negotiable as an "appropriate arrangement"
 for employees adversely affected by management's exercise of a reserved
 right.
 
                              C.  Conclusion
 
    Based on the reasons and cases cited in Federal Deposit Insurance
 Corporation, the Authority concludes that Union Proposal 7 is within the
 duty to bargain pursuant to section 7106(b)(3) of the Statute.
 
                           X.  Union Proposal 8
 
          In no case will an employee's utilization of any telephone
       designated pursuant to #9 (of the memorandum) be construed as
       agreement with or consent to Service Observation/Monitoring of
       telephones.
 
                         A.  Position of the Union
 
    According to the Union, the telephones in question are those
 designated by management for monitoring in connection with evaluating
 employee performance.  The Union states that the Agency is required,
 pursuant to its own regulations, to obtain employee consent prior to
 each instance of monitoring those telephones.  The Union states that the
 proposal's purpose is to prevent an employee's use of the designated
 telephones from being construed as consent to monitoring undertaken in
 violation of the collective bargaining agreement, law, rule or
 regulation.  The Union points out that the proposal does not authorize
 employees to refuse to participate in monitoring as a performance
 evaluation technique nor does it insulate employees from discipline for
 refusing to give the required consent to telephone monitoring.
 
                               B.  Analysis
 
    Based on the Union's explanation, it is clear that Union Proposal 8
 is in no way intended to impede the Agency's use of telephone monitoring
 as a tool in measuring employee performance or to shield employees from
 discipline.  Rather, the proposal's sole purpose is to preserve the
 right to consent to telephone monitoring granted to employees and the
 Union by their negotiated agreement, by the Agency itself or by law.
 
                              C.  Conclusion
 
    The Authority finds that Union Proposal 8 does not interfere with
 rights reserved to management under the Statute and the proposal does
 not appear to be nonnegotiable on any other ground.  Consequently, the
 proposal is within the Agency's duty to bargain.
 
                                XI.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposals
 1, 3, 4, 5, 6, 7, and 8.  /2/ IT IS FURTHER ORDERED that the petition
 for review as it relates to Un