26:0612(76)NG - AFGE, Local 32, and OPM -- 1987 FLRAdec NG



[ v26 p612 ]
26:0612(76)NG
The decision of the Authority follows:


 26 FLRA No. 76
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, LOCAL 32
 Union
 
 and
 
 OFFICE OF PERSONNEL 
 MANAGEMENT
 Agency
 
                                            Case No. 0-NG-957
 
                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 presents issues
 concerning the negotiability of three proposals.  The proposals were
 introduced during bargaining over the impact and implementation of the
 Agency's new Annuitant Service Division Training Memo.  For the reasons
 stated below, we find Proposal 1 to be negotiable and Proposals 2 and 3
 to be nonnegotiable.
 
                              II.  Proposal 1
 
          Employees will be given at least 2 hours of non-measured work
       time to set up their desks and adjust work patterns in accordance
       with these new instructions, including employees who have already
       done so.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal interferes with its rights
 under section 7106(a)(2)(A) and (B) of the Statute to direct employees
 and to assign work.  According to the Agency, Proposal 1 in this case is
 not materially different from Proposal 2, found to be nonnegotiable, in
 American Federation of Government Employees, AFL-CIO, Local 1923 and
 Department of Health and Human Service, Social Security Administration,
 12 FLRA 17 (1983).
 
    The Union characterizes the proposal as an appropriate arrangement,
 within the meaning of section 7106(b)(3) of the Statute, for employees
 who will lose productive time because they must set up their desks in a
 new way.  It contends that the holding in AFGE, Local 1782 v. FLRA, 702
 F.2d 1183 (D.C. Cir. 1983), suports the proposal's negotiability.
 
                               B.  Analysis
 
        1.  Violation of Management Rights to Direct Employees and
 
                to Assign Work
 
    While the actual operation of this proposal is not set out in the
 record, it is clear that the two hours set aside for employees to
 rearrange their desks, etc., would not be factored or otherwise included
 in a calculation of the timeliness and quantity of an employee's work
 product.  Thus, and in agreement with the Agency, we find this proposal
 is to the same effect as Proposal 2 found nonnegotiable in Department of
 Health and Human Services, Social Security Administration, 12 FLRA 17
 (1983).  Proposal 2 in that case obligated the agency to grant extra
 time or to not count certain time in a determination of the quantity and
 timeliness of an employee's work product.  The Authority concluded that
 as the proposal required negotiation on the content of performance
 standards, specifically the quantity and timeliness of an employee's
 work product, it interfered with management's rights under section
 7106(a)(2)(A) and (B) to direct employees and to assign work.  In like
 manner Proposal 1 in this case also interferes with management's rights
 to direct employees and to assign work.  See also National Treasury
 Employees Union and Department of the Treasury, Internal Revenue
 Service, 23 FLRA No. 36 (1986).
 
         2.  An "Appropriate Arrangement" under Section 7106(b)(3)
 
    Although we find that Proposal 1 violates management rights, we need
 not conclude that it is nonnegotiable if we find it to be an
 "appropriate arrangement for employees adversely affected" by the
 exercise of those management rights.  See National Association of
 Government Employees, Local R14-87 and Kansas Army National Guard, 21
 FLRA No. 4 (1986).  For the following reasons we find that the proposal
 is within the duty to bargain because it does not excessively interfere
 with management's rights to direct employees and to assign work.
 
    The proposal is intended to be an "arrangement" for employees
 adversely affected by management's exercise of its rights to direct
 employees and to assign work under section 7106(a)(2)(A) and (B).  The
 Agency makes no claim, nor is it otherwise evident from the record, that
 it is unnecessary to rearrange desks in order to comply with the revised
 training memo.  The Union asserts that rearranging desks is a
 preliminary requirement to carrying out assignments in conformity with
 the new training memo.  See Union Reply Brief, n.2.  The proposal deals
 with this requirement, which in nonproductive time in terms of
 employees' performance appraisals, by excluding the time devoted to
 rearranging desks from the time available for productive work.  If the
 time sought by the proposal is not granted, the employees' production
 would be adversely affected.  They would, of necessity, have to devote
 production time to the tasks of rearranging their desks.  The inevitable
 consequence would be a decrease in the employees' level of performance.
 
    The remaining question is whether the burden imposed on management's
 rights by the proposal is excessive when weighed against the proposal's
 benefit to employees.  We conclude that, on balance, the benefit
 accuring to the concerned employees outweighs the detriment imposed on
 management's rights to direct employees and to assign work.
 
    As has been noted, the proposal provides for the assignment of a task
 necessitated by management's revision of its operating procedures.  The
 Agency does not contend that the two hours required by the proposal are
 excessive.  If, however, the Agency views the time allocation as
 excessive, a position not stated in the record, that issue is
 appropriate for resolution during negotiations or, if necessary, during
 impasse proceedings.
 
    The proposal also appears to provide for a more accurate assessment
 of employees' performance.  The time devoted to rearranging desks is
 time during which employees cannot be engaged in producing the final
 products by which their performance is measured.  To include such time
 in the hours available for production of work for performance appraisal
 purposes would be a misrepresentation detrimental to the employees
 involved, and would not be an accurate measure of employee's ability or
 motivation.  Moreover, the situation addressed by the proposal is not
 one for which the employees are responsible since the decision to revise
 work procedures was made by management within its sole discretion.  The
 task addressed by the proposal is assigned by management and is
 nonrecurring.  The Union only seeks to establish that the existing
 standards do not measure employees' performance during execution of this
 one-time, short term task.  Consequently, we conclude that the proposal
 does not excessively interfere with the development of performance
 standards.
 
                              C.  Conclusion
 
    The burden imposed on management by Proposal 1 is insubstantial when
 weighed against the potential benefit accruing to employees.
 Consequently, as the proposal does not excessively interfere with the
 rights to direct employees and to assin work it is a negotiable
 "appropriate arrangement" within the meaning of section 7106(b)(3) of
 the Statute.
 
                             III.  Proposal 2
 
          Employees will suffer no adverse impact for failure to follow
       any aspect of the training memo when the circumstances are outside
       their control.
 
                        A.  Position of the Parties
 
    The Agency contends that Proposal 2 requires bargaining over the
 content of performance standards.  Therefore, the proposal violates the
 reserved rights to direct employees and to assign work under section
 7106(a)(2)(A) and (B) of the Statute.
 
    The Union describes its proposal as an "arrangement" for employees
 adversely affected by management's decision to prescribe new operating
 procedures.  The proposal, according to the Union, also ensures that
 management will take adverse action only for such cause as will promote
 the efficiency of the service.
 
                               B.  Analysis
 
   Violation of Management Rights to Direct Employees and to Assign Work
 
    Proposal 2 in this case is to the same effect as Proposals 1-3 found
 nonnegotiable in American Federation of Government Employees, Local 32,
 AFL-CIO and Office of Personnel Management, 19 FLRA 93 (1985).  In that
 case each of the three proposals described a specific work situation
 which was "outside their (the employees') control" and sought to
 insulate the employees from penalties attributable to the occurrence of
 such circumstance.  The Authority reasoned that under the proposals,
 arbitral scrutiny would extend to inquiry into whether the standards
 themselves made the appropriate allowances for the situations described.
  The Authority further found that even 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, an arbitrator could investigate whether the alternate
 assignments and/or the related performance standards had an adverse
 impact on unit employees.
 
    Thus, the Authority concluded that the proposals were inconsistent
 with management's rights to direct employees and to assign work under
 section 7106(a)(2)(A) and (B).  While Proposal 2 in this case does not
 specify a particular work situation beyond an employee's control, it
 does, like Proposals 1-3 in Office of Personnel Management, required
 employees to be insulated from penalties attributable to the occurrence
 of any such circumstances.  Under Proposal 2 in this case, the Agency
 would be prevented from evaluating an aspect of employees' performance:
 their ability to adapt and carry out their assignments in unforeseen
 circumstances.  This proposal would free employees from accountability
 for anything less than satisfactory performance in circumstances where
 procedures governing guidance cannot be followed.  Consequently,
 Proposal 2 divests management of the authority to direct employees and
 assign work in those circumstances.
 
    Finally, the Union's claim that management action in evaluating
 employees in such circumstances would be inconsistent with the
 requirement stated in 5 U.S.C. section 7513 "only for such cause as will
 promote the efficiency of the service" cannot be sustained.  Performance
 based reductions in grade and removals taken under 5 U.S.C. section 4303
 are specifically excluded from the 5 U.S.C. section 7513 requirement by
 5 U.S.C. section 7512(D).  See also Lovshin v. Department of the Navy,
 767 F.2d 826 (Fed. Cir. 1985), cert. denied, 106 S. Ct. 1523 (1986),
 reh'g denied, 106 S. Ct. 2931 (1986).
 
            2.  The Proposal is not an Appropriate Arrangement
 
    The Union asserts that the proposal is negotiable because it
 "establishes an arrangement for employees adversely affected by the new
 procedures(.)" Presumably the Union intends that the proposal be
 included among those matters which are negotiable under section
 7106(b)(3) of the Statute.  We disagree.  We cannot conclude that
 management's exercise of its right to revise the procedures used in
 accomplishing its work inevitably or inherently has an adverse affect on
 the employees who must employ the new procedures.  Additionally, we do
 not find that management's content of performance standards -- which
 otherwise is outside the duty to bargain.  See Patent Office
 Professional Association and Patent and Trademark Office, Department of
 Commerce, 25 FLRA No. 29 (1987), slip op. at 13, petition for review
 filed sub nom. Patent Office Professional Association v. FLRA, No.
 87-1135 (D.C. Cir. Mar. 26, 1987).
 
                              C.  Conclusion
 
    Proposal 2 is not an "appropriate arrangement" within the meaning of
 section 7106 (b)(3) of the Statute because it does not concern employees
 adversely affected by the exercise of a management right.  Rather, the
 proposal interferes with management's rights to direct employees and to
 assign work under section 7106(a)(2)(A) and (B) of the Statute.
 Consequently, Proposal 2 is outside the duty to bargain.
 
                              IV.  Proposal 3
 
          The assignment of ASR's between blocks, types of work or
       sections will at all times be fair and consistent.
 
                       A.  Positions of the Parties
 
    Proposal 3, in the Agency's view, interferes with its rights under
 section 7106(a)(2)(A) and (B) of the Statute to direct employees, to
 assign work and to determine the personnel by which Agency operations
 will be conducted.  Specifically, the Agency states that the proposal
 "seems reasonably designed to require a predictable and even
 distribution of ASR's (Annuitant Services Representatives) within the
 various blocks and sections as well as the types of work within the ASD
 (Annuitant Services Division).  Moreover, this predictable and equitable
 distribution must be maintained at all times." Agency Statement of
 Position at 4.
 
    The Union claims that this proposal would require that the Agency not
 act unfairly when making assignments.  The Union characterizes the
 Agency's position as asserting a right to make assignments of ASR's
 between blocks and types of work or sections unfairly and contends that
 the Agency's position is without support in the Statute.  Unlike the
 previous proposals in this case, the Union does not argue that Proposal
 3 constitutes an appropriate arrangement.
 
                               B.  Analysis
 
    In agreement with the Agency, we find this proposal mandates
 consistency and equality in work assignments.  As such, it is to the
 same effect as Proposal 1 found to be nonnegotiable in National Treasury
 Employees Union and Internal Revenue Service, 13 FLRA 48 (1983).
 Proposal 1 in that case required that certain assignments be distributed
 among employees "on an equitable basis." The Authority noted that the
 proposal would prevent management from taking into account valid
 considerations in making work assignments and concluded that the
 proposal was inconsistent with the right to assign work under section
 7106(a)(2)(B) of the Statute.  In like manner, Proposal 3 would prevent
 the Agency from taking into account valid considerations such as
 individual judgment and reliability or work load needs within the
 various sections of the ASD in making work assignments.  Thus Proposal 3
 is inconsistent with management's right to assign work under section
 7106(a)(2)(B) of the Statute.  See also American Federation of
 Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 17 FLRA 326 (1985).
 
                              C.  Conclusion
 
    We find that Proposal 3 is outside the duty to bargain under section
 7106(a)(2)(B) because it is inconsistent with management's right to
 assign work.  In view of this decision it is unnecessary to address the
 Agency's additional contentions that the proposal is nonnegotiable.
 
                                 V.  Order
 
    The Agency must bargain upon request (or as otherwise agreed to by
 the parties) concerning Proposal 1.  /*/ The petition for review of
 Proposals 2 and 3 is dismissed.
 
    The Union also requested two additional remedies in this case,
 specifically, that any agreement reached as a result of bargaining
 should be ordered to be made retroactive to the date of the contract
 then being negotiated and that the Agency should be ordered to not
 similarly refuse to bargain in the future.  In support of its request,
 the Union claims "(t)hese are the remedies intended by Congress to be
 provided in cases of unlawful refusals to bargain." We reject this
 request.  As we recently stated in Decision on Petition for Amendment of
 Rules, 23 FLRA No. 57, slip op. at 4 (1986), a petition for review filed
 sub nom. National Labor Relations Board Union v. FLRA, No. 86-1624 (D.C.
 Cir. Nov. 17, 1986), a requirement to provide unfair labor practice
 remedies in circumstances "where an agency is merely alleging -- in the
 absence of clear precedent to the contrary -- that a disputed proposal
 is nonnegotiable is contrary to the language and legislative history of
 the Statute as well as Authority precedent." W