34:1022(164)NG - - NTEU and HHS, Office of Hearings and Appeals - - 1990 FLRAdec NG - - v34 p1022



[ v34 p1022 ]
34:1022(164)NG
The decision of the Authority follows:


34 FLRA No. 164

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

OFFICE OF HEARINGS AND APPEALS

(Agency)

0-NG-1597

DECISION

February 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the National Treasury Employees Union (the Union) under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The negotiability of three proposals is at issue.

The proposals require the Agency to consider certain factors in assessing attorney-advisors' performance under Generic Job Task (GJT) 104. GJT 104 pertains to writing decisions in Social Security Disability cases for administrative law judges. We conclude that the proposals 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. Therefore, we dismiss the Union's petition for review.

II. Proposals 7(B) and 9(B)

Proposal 7(B)

With regard to an employee's performance under GJT 104 during any calendar month, the Employer shall not strictly apply the performance standards for such month if during the month the employee spent more than 5% of his/her "duty hours" in activities not directly related to decision writing, as decision writing is usually performed.

The meaning of "duty hours" is as defined in GJT 104 of the new performance standards. (GJT 104 means Generic Job [t]ask 104 which is the writing of decisions in Social Security Disability cases).

Decision writing as is usually performed does not include proofreading typing of unprofessional quality.

Proposal 9(B)

With regard to an employee's performance under GJT 104 during any calendar month, the Employer shall not strictly apply the performance standards for such month if during the month: (1.) the employee was required to utilize a decision writing format or style other than the "non-format"; (2.) the decision writing style or format was unusually time consuming for the employee; and (3.) the Employer did not make a reasonable adjustment of the employee's "duty hours", under GJT 104 on account of unforeseen circumstances beyond the control of the employee.

A.Positions of the Parties

1. The Agency

The Agency argues that Proposals 7(B) and 9(B) are outside the duty to bargain. According to the Agency, these proposals interfere with management's rights to assign work, direct employees, and conduct performance appraisals encompassed in section 7106(a)(2)(A) and (B) of the Statute.

According to the Agency, these proposals require that the Agency "adopt a separate set of performance standards for employees who spend less than 95 percent of their time in activities directly related to decision writing or who use a different or time-consuming decision writing format." Agency's Statement of Position at 4. The Agency asserts that the proposals attempt to provide employees with "blocks of work time which will not be counted against them in an evaluation of their performance." Id. at 5. Therefore, the Agency asserts that the proposals "would require Management to change the production goal which it had established and to adopt a different standard, thereby interfering with Management's right to determine the content of the performance standard." Id.

2. The Union

The Union argues that these proposals do not interfere with management's rights under section 7106(a)(2)(A) and (B) of the Statute. According to the Union, "[p]roposals 7(B) and 9(B) are not concerned with establishing the content of the Agency's performance standards; rather, they are explicitly concerned with the application of such performance standards." Union's Statement of Position at 3.

The Union asserts that the intent of these proposals is "merely to require management to exercise some flexibility in applying the existing standards to those employees." Id. The Union argues that these proposals are designed to mitigate the effects of any possible rigid application of management's performance standards to circumstances in which employees must meet a variety of work-related responsibilities over which the employees have no control. Id. at 3.

B. Analysis and Conclusion

We find that Proposals 7(B) and 9(B) are outside the duty to bargain because they do not involve merely the application of performance standards. The proposals require management to adjust or revise the content of its established performance standards for GJT 104.

Management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to identify critical elements of performance and establish performance standards. Proposals which establish criteria governing the content of performance standards and critical elements of performance are nonnegotiable because they directly interfere with management's rights to direct employees and assign work. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 385 (1987) (POPA), affirmed mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam); National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), affirming sub nom. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980).

Proposals which relate to the application of critical elements and performance standards do not conflict with management's rights to direct employees and assign work. Proposals which concern only the application of performance standards are negotiable because they 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 specific 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) (Mid-America Program Service Center); 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 proposals pertain only to the application of performance standards in evaluating employees' performance on GJT 104 and do not preclude management from developing standards to assess how employees perform in light of the factors cited in the proposals. We agree that the proposals 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 GJT 104.

Proposals 7(B) and 9(B) prohibit the application of management's performance standards when the circumstances identified by the Union are present. Under the standards established by management, employees must attain a certain level of performance to achieve a specific rating. By requiring that management "not strictly apply the performance standards" in the circumstances specified in the proposals, the proposals would prevent management from enforcing its established performance standards. Thus, Proposals 7(B) and 9(B) would have the impact of altering the content of the standards.

Proposals 7(B) and 9(B) are similar to the provisions in dispute in National Treasury Employees Union and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 34 FLRA No. 162 (1990) (Social Security Administration). In Social Security Administration, the provisions required that the Agency consider or take into account certain factors in assessing an employee's performance under GJTs 104 and 105.

We held that the provisions in Social Security Administration were nonnegotiable because they required management to modify and adjust the content of its performance standards in violation of management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. Social Security Administration at 8. Like the provisions in Social Security Administration, Proposals 7(B) and 9(B), 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 GJT 104.

The Union argues that these proposals are similar to Section 4.G. in POPA. Contrary to the Union's argument, we find that the proposals are distinguishable from Section 4.G. in POPA, which the Authority found to be negotiable.

Section 4.G. provided that:

No employee shall be evaluated on the basis of production constancy unless the evaluation explicitly takes into account all job functions the employee is expected to perform and the actual amount of time available to perform those functions.

POPA, 25 FLRA at 427 (emphasis in original).

The Authority found that Section 4.G. did not affect the requirements of management's existing production standards, but only how those requirements would be applied to employees in assessing their performance under a standard of production constancy. See POPA, 25 FLRA at 401-02. Section 4.G., unlike Proposals 7(B) and 9(B), did not require management to adjust or modify its existing standards. Consequently, the Authority found that Section 4.G. did not interfere with management's right to determine the production standards themselves.

The disputed provisions in this case constitute exceptions to, and modifications of, existing performance standards for GJT 104. Accordingly, we find, consistent with the Authority's disposition in Social Security Administration, that the provisions directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and are outside the duty to bargain. See also Mid-America Program Service Center, 33 FLRA at 462.

The Union argues that the proposals "'merely would establish a general, nonquantitative requirement by which the application of critical elements and performance standards established by management may subsequently be evaluated in a grievance by an employee who believes that he has been adversely affected by the application of management's performance standard to him.'" Union's Statement of Position at 4 (quoting American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784, 792 (1980)).

The Union's use of the words "adversely affected" is not sufficient to raise an argument that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority has long held that when claiming that a proposal constitutes an appropriate arrangement under section 7106(b)(3):

the union should identify the management right or rights claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse. In other words, a union must articulate how employees will be detrimentally affected by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of the exercise of the management right or rights.

National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986). Here, the Union has not met the requirements in Kansas Army National Guard. Therefore, we will not determine whether these proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1237-38 (1988) (section 7106(b)(3) considered only to the extent union raised specific arguments).

III.Proposal 15

With regard to GJT 104(C): The signing of a decision draft by an Administrative Law Judge shall be prima facie evidence that the decision draft was of acceptable quality, except if both:

(1.) The decision draft was reviewed by an appraising managerial official; and

(2.) such appraising managerial official, when reviewing the decision draft, had present both the case file and the Administrative Law Judge's instructions.

A.Positions of the Parties

1. The Agency

The Agency argues that Proposal 15 is outside the duty to bargain because it is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, Proposal 15 prescribes the quality of a decision draft and how an employee's performance would be evaluated. The Agency asserts that Proposal 15 restricts management's discretion to determine the levels of performance that it would require of its employees.

The Agency also argues that the proposal limits management's right to take performance-based action. According to the Agency, the proposal would "preclude errors which have been corrected from being held against employees and also could preclude employees from being held accountable for errors detected later." Agency's Statement of Position at 6. In addition, the Agency argues that the proposal violates section 7106(a)(2)(B) of the Statute because it assigns specific responsibilities to the management official who must perform the quality evaluation.

2. The Union

The Union argues that this proposal concerns the application of performance standards on the quality of decision drafts written by employees. According to the Union, the proposal does not provide a qualitative requirement for a draft decision, nor does it specify the management official who must perform the evaluation. The Union asserts that the proposal only provides that the signing of the decision draft by an Administrative Law Judge shall be prima facie evidence that the draft was of acceptable quality. The Union asserts that the prima facie determination is not conclusive and that it may be rebutted by competent evidence. Union's Statement of Position at 4. In addition, the Union argues that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

B. Analysis and Conclusion

We find that Proposal 15 is outside the duty to bargain because it directly interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

Proposal 15 establishes when an employee's work is of acceptable quality. Thus, it establishes qualitative criteria which the Agency must accept when evaluating an employee's performance unless the conditions set forth in the proposal are met. As noted in our analysis of Proposals 7(B) and 9(B), proposals which establish criteria governing the content of performance standards are nonnegotiable because they directly interfere with management's rights to direct employees and assign work. See Social Security Administration at 5. See also POPA, 25 FLRA at 385.

The Agency could avoid the limitation set forth in Proposal 15--the Administrative Law Judge's signature is evidence of acceptable quality--if a managerial official evaluates the decision draft under the conditions described. The conditions are that a managerial official have the case file and the ALJ's instructions when reviewing a decision draft. By prescribing what management should consider when evaluating an employee's performance, the proposal further restricts management's rights.

Thus, Proposal 15 establishes when an employee's work is of acceptable quality and requires that a managerial official use certain documents when evaluating an employee. We conclude that Proposal 15 is outside the duty to bargain because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(B) of the Statute.(*) See POPA, 25 FLRA at 398-99. See also National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 776 (1980).

We note that the Union argues that this proposal constitutes a procedure under section 7106(b)(2) of the Statute. However, because Proposal 15 directly interferes with management's rights to direct employees and to assign work, it does not constitute a negotiable procedure