26:0848(99)NG - NFFE, Local 1454, and VA -- 1987 FLRAdec NG



[ v26 p848 ]
26:0848(99)NG
The decision of the Authority follows:


 26 FLRA No. 99
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1454
 Union
 
 and
 
 VETERANS ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-1041
 
                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) concerning the
 negotiability of six proposals made by the Union during negotiations on
 the impact and implementation of revised performance standards for
 Adjusication Division employees.
 
                              II.  Proposal 1
 
          The Union should be permitted to bargain on the form of
       employee participation allowed in the change of the performance
       standards.
 
                       A.  Positions of the Parties
 
    The Agency contends that the Union did not request a written
 allegation of nonnegotiability as required under section 2424.3 of the
 Authority's Rules and Regulations.  On this basis, it has moved to
 dismiss the petition for review as to proposal 1.
 
    The Union contends that it did not seek a written allegation from the
 Agency because the Agency had stated its position on the proposal in an
 August 2, 1984, memorandum.  In the memorandum, the Agency stated that
 "this opportunity for bargaining (about employee participation in
 revising performance standards) took place when a supplemental agreement
 was negotiated.  Impact and implementation bargaining does not allow
 reopening of supplemental bargaining(.)" The Union contends that the
 proposal is not an attempt to negotiate another supplemental agreement.
 
                        B.  Conclusion and Analysis
 
    The petition for review as to proposal 1 is not properly before the
 Authority.
 
    In American Federation of Government Employees, Local 12, AFL-CIO and
 Department of Labor, 26 FLRA No. 89, slip op. at 2-3 (1987), we held
 that, where threshold duty to bargain issued are raised concerning a
 proposal but the conditions for review of a negotiability issue under
 section 2424.1 of our Regulations have not been met, we will dismiss the
 petition for review of the proposal.
 
    Under section 2424.1 of our Regulations, we will consider a petition
 for review of a negotiability issue only where the parties are in
 dispute as to whether a proposal is inconsistent with law, rule or
 regulation.  As noted above, the only issues raised in the present case
 concern:  (1) whether bargaining occurred on employee participation in
 revising performance standards, and (2) whether the Union waived its
 right to negotiate on the proposal when it negotiated the supplemental
 agreement.  The Agency does not argue, and thus there is no issue before
 us, as to whether proposal 1 is inconsistent with law, rule or
 regulation.  Therefore, we will dismiss the Union's Petition for Review
 as to that proposal, without prejudice to the Union's right to file a
 negotiability appeal -- if the conditions governing review of
 negotiability issues are met and if the Union chooses to file such an
 appeal.
 
                        III.  Proposals 2 through 6
 
                                Proposal 2
 
          In the Performance Standards for Rating Specialists, timeliness
       indicators should be sampled as SQC (Statistical Quality Control),
       not spot checks, and the table of standard deviation should apply.
 
                                Proposal 3
 
          In the Performance Standards for Senior Adjudicators,
       timeliness indicators should be sampled as SQC with the table of
       standard deviation for application.
 
                                Proposal 4
 
          In the Performance Standards for Veterans Claims Examiners
       (GS-9), timeliness indicators should be sampled as SQC with the
       table of standard deviation for application.
 
                                Proposal 5
 
          In the Performance Standards for all positions in the
       Adjudication Division, spot checks should not be used as
       timeliness indicators.
 
                                Proposal 6
 
          In the Performance Standards for Program Clerks, Key
       Responsibility #3 should specify a timeliness indicator.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposals are inconsistent with
 management's rights to direct employees and to assign work, including
 the establishment of performance standards and critical elements,
 because they would prevent management from using its preferred method of
 spot checks to measure the timeliness of employees' work.  The Agency
 states that the proposals would require it to use only the statistical
 quality control method and the table of standard deviation to measure
 timeliness.  As a result, it would not be able to evaluate the
 timeliness of employees' work on Special Projects and cases not computer
 controlled.
 
    The Union contends that the proposals do not restrict the Agency's
 right to direct employees and to assign work.  It argues that the
 proposals are an attempt to negotiate procedures to be used to measure
 the timeliness of employees' work and to negotiate appropriate
 arrangements for employees adversely affected by implementation of
 revised performance standards.
 
                        B.  Conclusion and Analysis
 
    For the reasons which follow, we find that proposals 2 throufh 6 are
 outside the duty to bargain.  They directly interfere with management's
 rights to direct employees and to assign work under section
 7106(a)(2)(A) and (B).  They also are not negotiable procedures under
 section 7106(b)(2) and do not qualify for consideration under section
 7106(b)(3).
 
          1.  The proposals directly interefere with management's
 
                right to direct employees and to assign work.
 
    The proposals are concerned with how the Agency will sample
 employees' work to measure its timeliness.  Under these proposals, the
 Agency would have to use the statistical quality control method with the
 table of standard deviation to select the sample of cases to review.
 Statistical quality control, according to the record, is based on random
 selection of cases out of a computer.  Since not all work which the
 Agency wishes to measure is computer controlled, the Proposal would also
 have to effect of preventing the Agency from evaluating the timeliness
 of work which could not be selected out of a computer.
 
    The Authority has previously held that union proposals which are
 intended to favor a particular sampling technique and proscribe use of
 auditing methods an agency deems most appropriate conflict with section
 7106(a)(2)(A) and B of the Statute and are nonnegotiable.  Social
 Security Administration, Northeastern Program Service Center and
 American Federation of Government Employees, Local 1760, AFL-CIO, 18
 FLRA 437, 439-40 (1985) (proposals 1, 2, 5, and 7).  See also American
 Federation of Government of Government Employees, Local 1760, AFL-CIO
 and Department of Health and Human Services, Social Security
 Administration, 15 FLRA 909, 914 (1984), reversed Motion for
 Reconsideration, 18 FLRA 932 (1985) (proposals 1, 2, and 7).
 
    The proposals in the present case have the same substantive effect as
 the proposals held to conflict with management's rights in the cited
 cases.  They would require the Agency to sample employees' work in a
 particular way -- Statistical Quality Control -- in order to audit the
 timeliness of the employees' work performance.  Therefore, for the
 reasons set forth in the Local 1760 cases, cited above, we find that
 these proposals also directly interfere with management's rights.
 
          2.  The proposals do not involve procedures within the
 
                meaning of section 7106(b)(2).
 
    As found above, the proposals directly interfere with management's
 right under section 7106(a)(2)(A) and (B) by prescribing the particular
 method by which the Agency must sample employees' work for the purpose
 of measuring its timeliness.  Accordingly, they do not constitute
 negotiable procedures within the meaning of section 7106(b)(2) of the
 Statute.  See American Federation of Government Employees, AFL-CIO, and
 Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
 FLRA 604, 613 (1980), enforced as to other matters sub nom. Department
 of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C.
 Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
 
         3.  The proposals are not arrangements within the meaning
 
                of section 7106(b)(3).
 
    We turn now to the question of whether the proposals constitute
 negotiable appropriate arrangements under section 7106(b)(3) of the
 Statute.  During the pendency of this case the Authority issued National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986), concerning section 7106(b)(3).
 There we stated that henceforth we will determine whether a proposal
 constitutes an appropriate arrangement for employees adversely affected
 by the exercise of a management right by determining whether the
 proposal "excessively interferes" with the exercise of management's
 rights.
 
    The threshold question in applying the Kansas Army National Guard
 analysis is whether the proposal is an "arrangement" for adversely
 affected employees.  In Patent Office Professional Association and
 Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29,
 slip op. at 12-13 (1987), petition for review filed sub nom. Patent
 Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26,
 1987), we found that proposal 3.K., which prescribed criteria for the
 establishment of performance standards and rating levels, did not
 qualify for consideration under section 7106(b)(3).  We reasoned that
 the establishment of performance standards did not by itself adversely
 affect employees.  Any adverse effect would not occur until an action
 was taken against an employee based on the application of those job
 requirements to the employee.  Thus, because proposal 3.K. was not an
 "arrangement," it did not qualify for consideration under section
 7106(b)(3), and therefore, we did not determine if the proposal was an
 "appropriate arrangement."
 
    Proposals 2 through 6 prescribe a method of sampling employees' work
 for the purpose of measuring timeliness.  It limits the scope of the
 work which may be evaluated to only work which is computer controlled.
 In our view, these proposals, like proposal 3.K. in Patent and
 Trademark, prescribe criteria for the establishment of performance
 standards.  Accordingly, because the establishment of performance
 s