34:1000(162)NG - - NTEU and HHS, SSA, Office of Hearings and Appeals - - 1990 FLRAdec NG - - v34 p1000



[ v34 p1000 ]
34:1000(162)NG
The decision of the Authority follows:


34 FLRA No. 162

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

0-NG-1610

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three provisions of a negotiated agreement which were disapproved in the course of Agency head review under section 7114(c) of the Statute.

The provisions require the Agency to consider or take into account certain factors in assessing an employee's performance under generic job tasks (GJTs) 104 and 105. We conclude that the provisions are outside the duty to bargain because they conflict with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Consequently, we will dismiss the Union's petition for review.

II. Provisions

Provision 5

In assessing an employee's performance under GJT 104, the Employer shall consider the extent to which the employee spent his/her "duty hours" performing tasks covered under GJTs 49, 105, and/or 119.

Provision 7

The Union recommends that any employee who is denied an extension of time under GJT 105 so notify the Union Chapter President.

In assessing an employee's performance under GJT 105, the Employer shall take into account the number of cases assigned for analysis to the employee, the manner in which the cases were assigned, and whether the employee was denied an extension of time for preparation of the analyses and/or recommendations. [Only the underscored portion of the provision is in dispute.]

Provision 8

Within 10 days of occurrence, the Employer shall notify in writing the Union Chapter President if an employee receives:

a. more than 6 decision drafts on one day, or

b. more than 4 decision drafts per day on each of two or more consecutive days

and if such employee is denied an extension of time for performance of proofreading.

In assessing an employee's performance under GJT 104, the Employer shall consider the manner in which an employee received decision drafts and whether the employee was denied an extension of time for proofreading. [Only the underscored portion of the provision is in dispute.]

III. Positions of the Parties

A. The Agency

The Agency contends that the disputed provisions "describe specific work situations that the Union attempts to define as outside the employees' control, thereby seeking to insulate the employees from penalties attributable to such circumstances." Agency's Statement of Position at 4 (emphasis in original). According to the Agency, the provisions would require the alteration of the content of the performance standards. Therefore, the Agency concludes, the provisions are outside the duty to bargain because they directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Id.

The Agency argues that Provision 5 and the disputed portion of Provision 8 "would require management to take into account both how much time is spent performing other specifically delineated tasks and the manner in which work was assigned." Agency's Statement of Position at 4. The Agency argues that the disputed portion of Provision 7 "would require management to take into account the number of cases assigned, the manner in which they were assigned and whether the employee was denied an extension of time for preparation of the decision." Id. The Agency contends that the effect of the provisions is "to require management to make allowances in the standards which it had developed." Id.

The Agency argues that even though the provisions may not dictate specific work requirements, the provisions interfere with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because the provisions mandate "some substantive criteria" for the establishment of additional critical elements or performance standards. Agency's Statement of Position at 5. The Agency states that the provisions designate specific work situations as being outside employees' control and provide employees with blocks of time or work situations which will not be counted against them in assessing their timeliness and/or productivity.

The Agency argues that by requiring management to alter or make allowances in its established timeliness and/or productivity goals, the provisions would determine the content of the Agency's performance standards. Id. at 6-7. Finally, the Agency argues that the provisions interfere with management's rights to direct employees and to assign work because the provisions would prevent management from assessing the employees' ability "to adapt and perform" under the circumstances delineated by the provisions. Id. at 7.

B. The Union

The Union states that the provisions "merely set forth examples of situations when factors beyond an employee[']s control make it unfair to strictly apply the numerical quotas that constitute the management determined performance standards." Union's Petition for Review at 2. The Union also states that "these [provisions] provide for flexibility in the application of performance standards." Union's Response to Agency's Statement of Position (Union's Response) at 2. The Union concludes that "the Agency would remain free to establish additional standards" by which to evaluate an employee's ability to perform in the face of factors beyond the employee's control. Id. at 4.

The Union notes that while the content of performance standards is nonnegotiable, proposals concerning the application of these standards in the assessment of an employee's performance do not interfere with management's rights. The Union states that, contrary to the Agency's contentions, the provisions: (1) are not concerned with establishing the content of the Agency's established performance standards, but rather are explicitly concerned with the application of those standards; and (2) do not attempt to provide employees with blocks of time or specific instances which will not be counted against them. Union's Response at 3-4. Because the Agency would "remain free to establish additional standards which evaluate an employee's ability to adapt and perform their assignments in the face of outside factors which would tend to hinder their performance," the Union argues that the provisions do not prevent the Agency "from holding employees responsible for performance affected by these factors[.]" Id. at 4. The Union claims that the provisions are only concerned "with evaluating an employee's performance of the duties required by the identified job task." Id. at 5.

The Union states that, like Section 4.G. in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (POPA), affirmed as to other matters mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam), the provisions only require flexibility in the application of performance standards and "do not specify any particular quantitative adjustment or formula." Union's Response at 5, 6. In enforcing these provisions, an arbitrator would not substitute his judgment for that of the Agency, but "would only mechanically determine whether the employee met the specific criteria set in the provisions and whether management considered or took into account these factors . . . in appraising performance under the established standard." Union's Response at 6.

IV. Discussion

We find that the disputed provisions are outside the duty to bargain because they do not merely provide for the application of performance standards. Rather, the provisions would require management to adjust or revise the content of its established performance standards for GJTs 104 and 105.

Management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to establish performance standards and identify critical elements. Proposals which establish criteria governing the content of performance standards and critical elements are nonnegotiable because they directly interfere with management's rights to direct employees and assign work. POPA, 25 FLRA at 385; National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1981), affirming sub nom. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980).

Proposals establishing requirements governing management's application of its performance standards and critical elements do not conflict with management's rights to direct employees and assign work. Proposals which concern only the application of performance standards do not prevent management from initially determining the content of standards and do not require management to change or modify established standards. POPA, 25 FLRA at 385-87. See also American Federation of Government Employees, Local 3748 v. FLRA, 797 F.2d 612 (8th Cir. 1986), affirming sub nom. American Federation of Government Employees, Local 3748, AFL-CIO and Agricultural Research Service, Northern States Area, 20 FLRA 495 (1985); National Treasury Employees Union v. FLRA, 767 F.2d 1315 (9th Cir. 1985), affirming sub nom. National Treasury Employees Union and Department of Health and Human Services, Region 10, 13 FLRA 732 (1983) (Supplemental Decision on Remand).

Proposals which absolve employees of accountability for meeting certain levels of performance are nonnegotiable because they preclude management from determining the content of the performance standards used to evaluate employees. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 63-65 (1988). Proposals which require management to make adjustments or changes in production expectations also mandate the content of performance standards and are nonnegotiable because they interfere with management's discretion to establish performance standards and to identify critical elements. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, and Mid-America Program Service Center, Kansas City, Missouri, 33 FLRA 454, 461-62 (1988); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1398 (1987), affirmed as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).

The Union contends that the provisions pertain only to the application of performance standards in evaluating employees' performance on GJTs 104 and 105 and do not preclude management from developing standards to assess how employees perform in light of the factors cited in the provisions. We agree that the provisions do not explicitly preclude management from establishing standards which would hold employees accountable for their performance as to the specified factors. We conclude, however, that the provisions would require management to adjust or revise the existing standards for GJTs 104 and 105.

The provisions create exceptions to the Agency's existing standards for the factors listed in the provisions. Provision 5 requires management to "consider" in its assessment of employee performance under GJT 104 the amount of duty time spent "performing tasks covered under GJTs 49, 105, and/or 119." Provision 7 requires that assessment of employee performance under GJT 105 "take into account" the number of cases assigned, the manner in which assigned, and whether an extension of time had been granted to complete certain work. Provision 8 requires that management "consider" in its assessment of employee performance under GJT 105 the manner in which cases were assigned and whether an extension of time had been granted to complete certain work. Under the standards established by management, employees must attain a certain level of performance to achieve a specific rating. The provisions would have the effect of altering the content of the standards to permit lesser levels of performance to achieve that same rating.

The Union uses the terms "consider" and "to take into account" interchangeably. See, for example, Union's Response at 6. The term "consider" connotes that management will review the specified factors but will remain free to base its decision on grounds other than those factors. See American Federation of Government Employees, AFL-CIO, Local 1426 and Department of the Army, Fort Sheridan, Illinois, 34 FLRA No. 124 (1990) (Fort Sheridan). The phrase "to take into account," on the other hand, connotes that management's decision will be based, at least in part, on the specified factors. See American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA 93, 94-95 (1985). Because the Union uses the terms interchangeably and based on the Union's statements as to the effect of the provisions, we conclude that the provisions are intended to require management not only to review the specified factors in evaluating an employee's performance, but also to base its evaluation of the employee--at least in part--on the results of that review. In other words, the provisions are intended to require management to modify the level of work required of an employee to achieve a given performance rating.

The provisions are distinguishable from the proposal in dispute in Fort Sheridan. The proposal in that case required the agency to "consider" the "freshness" of prior discipline when contemplating current disciplinary action by referring to specified time frames. The Authority held that the proposal was negotiable because it did not direct a particular result but, rather, preserved management's discretion to decide how to act. The provisions at issue in this case do not preserve management's discretion to determine the level of performance required of employees. Rather, under the provisions, management's determination must reflect the specified factors. The effect of the provisions, therefore, would be to prevent management from enforcing its existing standards as to timeliness and/or productivity.

The provisions are similar to Sections 4.E., 9.F., 9.G., and 11.D. in POPA. Each of those sections required management to make allowances in appraising employees for certain specified factors. Section 4.E. allowed employees to determine how they would allocate their time when conflicts between different performance standards arose and required management to consider setting different standards in such situations. Sections 9.F. and 9.G. provided, respectively, that management would adjust an employee's rating based upon specified circumstances and that time spent performing certain tasks would not be measured under the standard. Section 11.D. provided that management would not adversely evaluate employees for errors which were corrected prior to the appraisal. See POPA, 25 FLRA at 400-01, 412-14, 416-18.

The Authority held that the sections were nonnegotiable because they required management to modify or adjust the content of its performance standards. Like proposed Sections 4.E., 9.F., 9.G., and 11.D. in POPA, we find that the disputed provisions in this case, which also provide for management to make allowances for specified factors in evaluating employees, are nonnegotiable because they require management to modify and adjust the performance standards for GJTs 104 and 105.

The provisions in this case are distinguishable from