35:1276(147)NG - - AFGE Local 3172 and HHS, SSA, Vallejo District Office - - 1990 FLRAdec NG - - v35 p1276
[ v35 p1276 ]
The decision of the Authority follows:
35 FLRA No. 147
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
VALLEJO DISTRICT OFFICE
DECISION AND ORDER ON NEGOTIABILITY ISSUES
May 31, 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 Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of eight proposals.
Proposal 1 identifies certain types of Social Security claims which may require additional processing time and obligates management, in evaluating employee performance, to consider the additional time. Proposals 2 and 3 describe specific situations which will be deemed to be factors outside the control of the employee. Proposals 4 and 5 require, respectively, that statistical data used in evaluating employee performance be compiled in a manner recognized as valid by "the statistical community" and that conclusions based on statistical data use techniques accepted as valid by "the statistical community." Proposal 6 obligates management to develop numerical standards for level 4 when standards are stated for levels 2 and 3 in a 5-level performance standard. In Proposal 7, the Union seeks to include in the agreement a statement that it does not necessarily agree with local supplementary numerical performance standards developed by management. Proposal 8 identifies the point at which an employee's responsibility for a particular assignment starts.
For the reasons that follow, we find that Proposals 1, 2 and 3 are negotiable because they do not conflict with management rights. We find that Proposals 4 and 5 are negotiable procedures to be followed by management in applying performance standards. Proposal 6 is negotiable because it is consistent with applicable law and regulation and does not interfere with management's rights. Proposal 7 is negotiable because it concerns conditions of employment within the bargaining unit. We find that Proposal 8 is nonnegotiable 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.
II. Preliminary Matters
The Agency's statement of position was untimely filed. Under section 2424.6(a) of the Authority's Rules and Regulations, an agency's statement of position must be filed with the Authority "[w]ithin thirty (30) days after the date of the receipt by the head of an agency of a copy of a petition for review of a negotiability issue[.]" The United States Postal Service return receipt, included with the Union's reply brief, shows that the petition was received by the Agency on December 19, 1988. Therefore, the Agency's statement of position had to be filed by January 18, 1989 to be timely.
The Agency's statement was filed with the Authority on January 31, 1989. Consequently, the statement of position was not timely filed and will not be considered in deciding the negotiability issues. Our discussion of the Agency's position is based on a memorandum from the chief management negotiator to his Union counterpart (hereinafter memorandum) furnished by the Union with the petition for review.
The Union asserts that the Authority should find that the Agency's failure to file a statement of position in a timely manner "is tantamount to a withdrawal of its allegation of nonnegotiability[.]" Reply Brief at 2. Therefore, the Union contends, the Agency should be directed "to bargain concerning each of the disputed provisions." Id. We do not agree. Our Rules and Regulations do not impose a duty on an agency to reaffirm a previous allegation that a disputed proposal is nonnegotiable. Accordingly, the Authority acts on petitions for review where the agency fails to file, or timely file, a statement of position. See American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Cypress Hills District Office, 31 FLRA 1110 (1988) and Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436 (1987). Therefore, we will determine the negotiability of the disputed proposals.
III. Proposals 1 through 3
Proposal 1 [Applicable to Vallejo office]
It is agreed that the following types of claims may require additional processing time, and the additional time that may be required to process these claims shall be considered: Advance file cases, protective filing date cases, open application cases, cases transferred from another office or unit, delayed earnings record cases, cases necessitating securing foreign documents or out-of-office translations, no S[ocial] S[ecurity] N[umber] or incorrect SSN cases, systems limitations cases, cases from the California Medical Facility (CMF).
Proposal 2 [Applicable to Fairfield office]
[As] [a]n appropriate arrangement for employees adversely affected by the exercise of a management right to implement local numeric performance standards, it is agreed that the following circumstances will be considered as factors outside the control of the employee, per Article 21, Section 3E.: Medical folders placed in the D[ata] R[eview] T[echnician] unit after 1 PM, weekends, holidays, leave, details, training, meetings, the time a document spends on a supervisor's desk for review, the time a folder spends in another unit after being removed from the DRT unit after it has been receipted into the unit, time spent processing claims in another unit, any document placed in the S[ervice] R[epresentative] unit after 1 PM, days in which the computer system is inoperable, folders/documents transferred from another office or unit, or CMF cases.
It is agreed that the following circumstances will be considered as factors outside the control of the employee, per Article 21, Section 3.E: Time spent performing duties at a contact station, Napa State Hospital, CMF, etc., leave, details or work assignments in other units, training preparation, non-duty hours of part-time employees, out-of-unit bilingual duties, such as interviewing, translations, etc., teletype errors of other employees, abnormal amounts of time in conference with management, union official time.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposals 1, 2, and 3 are nonnegotiable because they would authorize an arbitrator to substitute her or "his judgment for that of management in deciding whether certain specific factors beyond an employee's control were adequately considered in the evaluation process." Memorandum at 2. The Agency argues that such arbitral authority would interfere with its right to evaluate employees and, consequently, with its right to direct work under section 7106(a).
2. The Union
The Union states:
None of [the] 3 Proposals require(s) [sic] that the employer give any weight to the listed duties in any particular or general manner, and [they] do not require that the employer refrain from evaluating employees on any of the listed duties. Rather, the three Proposals have their facial meaning, which is that the employer will merely consider the listed duties and, to the extent that duties require more time to perform than is usual or are outside the control of the employee in some other way, the employer will consider the fact of the additional required time and lack of control when evaluating the employee on the listed duties, if the employer chooses to do so.
Reply Brief at 10 (emphases in original).
The Union asserts that the three proposals are negotiable procedures, within the meaning of section 7106(b)(2), by which the performance standards developed by the Agency are to be applied. The Union points out that a provision of the parties' master agreement obligates management to "make provision for 'factors which affect performance that are beyond the control of the employee' when appraising performance[.]" Id. at 12.
If Proposals 1, 2, and 3 are found to interfere with management rights, the Union contends that they are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute. In support of its contention, the Union states:
The affected employees are adversely affected by the employer's exercise of its rights under [section] 7106(a)(2)(A) and (B), that is, by the establishment of numeric performance standards. The adverse effects include the individualized mandatory performance of work with a specified quality, quantity, and timeliness, as well as downgrade or removal from the employee's position under 5 U.S.C., Chapter 43. While the 3 Proposals don't interfere with management rights, and are only procedural, they benefit employees by providing an additional consideration in the application of the performance appraisal system which would result in a more realistic application and appraisal.
Id. at 14.
B. Analysis and Conclusions
We find that Proposals 1, 2, and 3 are within the Agency's duty to bargain.
Management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982) (NTEU). Proposals which include criteria governing the content of performance standards and critical elements are nonnegotiable because they directly interfere with management's rights to direct employees and to assign work. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 385 (1987) (POPA), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam); NTEU, 691 F.2d 553. For example, proposals absolving employees of accountability for meeting certain levels of performance are nonnegotiable because they preclude management from determining the content of performance standards used to evaluate employees' work. 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).
Furthermore, proposals requiring management to adjust or change production expectations in circumstances identified by the proposals dictate the content of applicable performance standards and, consequently, directly interfere with management's rights to identify critical elements and to establish performance standards. Therefore, such proposals are nonnegotiable. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Mid-America Program Service Center, Kansas City, Missouri and American Federation of Government Employees, AFL-CIO, 33 FLRA 454, 461-62 (1988); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1398 (1987), aff'd as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).
Proposals governing only the application of performance standards and critical elements do not conflict with management's rights to direct employees and to assign work. POPA, 25 FLRA at 385-87. In POPA, the Authority determined the negotiability of 33 proposals concerning aspects of the agency's performance appraisal system. Prior to considering the disputed proposals, the Authority reviewed the law governing the negotiability of matters pertaining to performance appraisal systems. Based on its survey of the applicable law, the Authority stated that "an arbitrator may review management's application of its already established standards and elements, to an employee in a performance appraisal." Id. at 387.
Accordingly, the task in deciding the negotiability of the three disputed proposals "is primarily one of determining, based on the record, whether they concern substantive matters, such as the content of performance standards and critical elements, or whether they concern the application of those standards and elements and other nonsubstantive matters such as procedures." Id.
Proposals 1, 2, and 3 identify certain events or processes which either involve longer-than-normal processing time or are beyond the control of the affected employees. The Union contends that the proposals "do not require the employer to make allowances in the performance standards which it has developed because they only require the employer [to] consider the unusually time-consuming and the uncontrollable duties when applying those performance standards; no requirement to make allowances in the content of the performance standards is even addressed by the 3 [p]roposals." Reply Brief at 13 (emphasis in original). The Union's explanation is consistent with the wording of the disputed proposals. Therefore, we adopt the Union's interpretation of the three proposals. Based on this interpretation, we reject the Agency's assertion that the proposals interfere with the reserved right to direct work under section 7106(a) of the Statute.
The proposals would not obligate the Agency to change any of its existing performance standards and would not inhibit the Agency in promulgating new standards. The proposals, moreover, would not require the Agency to revise any performance evaluations based on the identified events or processes. Rather, the sole objective of the proposals, as described by their wording and by the Union's explanation of their intent, is to identify certain circumstances which management should consider when evaluating employee performance. Compare National Treasury Employees Union and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 34 FLRA 1000, 1005-06 (1990) (provisions requiring management "to consider" specified factors in assessing employee performance found nonnegotiable because it was clear from the record that the provisions were intended to require management not only to review the specified factors in evaluating employee performance, but also to require management to modify the level of work required of an employee to achieve a given performance rating).
Finally, we reject the Agency's claim that the proposals interfere with its rights under section 7106 of the Statute by subjecting Agency decisions to arbitral review. The Agency's only obligation under the proposal is to consider the listed events or processes in evaluating employee performance. Such consideration, as we noted, does not interfere with management's exercise of its reserved rights. Therefore, arbitral review of the Agency's compliance with the proposals would not conflict with the exercise of rights under section 7106(a).
Accordingly, we find that Proposals 1, 2, and 3 do not interfere with the exercise of the management rights set out in section 7106 of the Statute. Therefore, Proposals 1 through 3 are negotiable.
IV. Proposals 4 and 5
Statistical data [that may be] used will be compiled using commonly accepted statistical techniques recognized as valid by the statistical community.
(Bracketed material in original.)
Conclusions based on statistical data will be based on techniques commonly accepted and recognized as valid in the statistical community.
A. Positions of the Parties
The Agency contends that Proposals 4 and 5 would interfere with its rights "to set performance standards and [its] methods and means of gathering data in the performance evaluation process." Memorandum at 2. The Agency also asserts that the proposals would "interfere with [its] right to evaluate employees." Id.
The Union argues that, because the proposals do not require the use of statistics in evaluating employee performance, they do not obligate management to use any particular method in the performance evaluation process. The Union contends that the two proposals are intended to protect employees from "the detrimental effects of inaccurate documentation being used as the basis of performance appraisals in the form of nominal statistical data which was collected through procedures that had no recognized statistical methodology." Reply Brief at 16 (emphasis in original). The Union asserts that the proposals concern only the procedures for compiling statistical data, if management elects to use statistics, and do not mandate the specific methods to be employed or attach specific criteria to the compilations (such as validity or reliability). Id.
B. Analysis and Conclusions
Proposals concerning the methodology used in measuring the quantity of employees' production have been held to be negotiable procedures under section 7106(b)(2) of the Statute because they do not concern the establishment of performance standards themselves. American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 174-75 (1986); National Treasury Employees Union and Internal Revenue Service, 8 FLRA 30, 31 (1982); and National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 7 FLRA 235, 238 (1981).
In agreement with the Union, we find that Proposals 4 and 5 merely require that the Agency ensure the accuracy of its selected measurement techniques, should it elect to use statistical methods, by applying procedures commonly accepted by those who are involved in statistical measurement. The disputed proposals do not interfere with management's choice of evaluation methodology nor do they preclude the Agency from taking personnel actions based on application of the selected methodology. Similarly, the proposals do not require bargaining over the content of critical elements or performance standards. Rather, Proposals 4 and 5 are directed at assuring that management's selected measurement techniques are valid and objective. Accordingly, based on the decisions cited above, we find that Proposals 4 and 5 are negotiable procedures under section 7106(b)(2) of the Statute.
Numeric performance standards will be developed for level 4 for all GJT's [Generic Job Tasks] in all positions where numerics are defined for levels 2 and 3.
A. Positions of the Parties
The Agency construes Proposal 6 as requiring it to establish a certain number of performance levels. Such a requirement, the Agency contends, previously has been found to be nonnegotiable by the Authority.
The Union describes the obligation imposed by Proposal 6 as follows:
Nothing in the Proposal requires the employer to continue to use a 5-level performance appraisal system, or to define any levels in terms of numerics or other content. However, since the employer has established the 5-level system and has defined levels 2 and 3, the requirement of Proposal  to also define level 4 is necessary to meet the requirements of law, and government-wide regulation concerning performance appraisal systems.
Reply Brief at 17. The Union cites 5 C.F.R. § 430.204(g) and (j) in support of its position.
The Union also argues that the proposal is negotiable because it merely restates the requirements for a legally sufficient appraisal system. Specifically, it contends that the lack of a definition for level 4 is arbitrary and capricious and in violation of 5 U.S.C. § 4302(b)(1). Additionally, the absence of a definition for level 4, the Union asserts, violates the requirement under 5 U.S.C. § 4302(b)(1) that performance standards be communicated to affected employees.
B. Analysis and Conclusions
We believe that the Agency has misread Proposal 6. We find that the Union's explanation of how the proposal is intended to operate is consistent with the proposal's wording. Accordingly, we adopt the Union's explanation for the purpose of our analysis.
The proposal obligates management to develop performance standards for level 4 "where numerics are defined for levels 2 and 3." Where no numeric standards are developed for levels 2 and 3, the Agency is not required to provide a definition for level 4. Similarly, the proposal does not compel the Agency to use numeric, or any other specific types of standards, and does not dictate the number of levels to be used in evaluating employee performance. That is, if the Agency employed an evaluation system incorporating a number other than five levels or described those levels in other than a numeric form, Proposal 6 would not apply. Consequently, the proposal does not interfere with the Agency's authority to determine the content of performance standards and does not violate management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B).
Furthermore, we note that the governing Office of Personnel Management (OPM) regulations provide, at 5 C.F.R. § 430.204(e), that:
Each appraisal system shall provide for a minimum of three rating levels for each critical element. Performance standards must be written at the "Fully Successful" level for all critical and non-critical elements and may be written at other levels. The absence of a written standard at a given rating level shall not preclude the assignment of a rating at that level.
Thus, 5 C.F.R § 430.204(e) neither bars nor requires written performance standards for more than one level of performance. Therefore, Proposal 6, calling for a numeric definition for level 4 where numeric standards are stated for levels 2 and 3, is not inconsistent with applicable regulations.
In view of our findings that the proposal does not interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute and is not inconsistent with applicable OPM regulations, we conclude that Proposal 6 is negotiable.
Nothing in this [Memorandum of Understanding] constitutes agreement by the [U]nion to the substance of local supplemental numeric standards proposed by the [A]gency.
A. Positions of the Parties
The Agency contends that Proposal 7 is nonnegotiable because it does not concern a condition of employment.
The Union asserts that, in light of the Agency's midterm implementation of supplemental numeric performance standards, "the fact that the employer's proposed action does not include acquiescence of the [U]nion vitally affects conditions of employees." Reply Brief at 19. The Union points out that employees who may be adversely affected by application of the new standards must be informed that they will have Union assistance in responding to the detrimental effects of applying the new standards. The Union argues that:
it is vitally important to the interests of such employees that they be encouraged to work through such adverse impact with the assistance of the [U]nion, that they be aware the [U]nion was not involved in the determination to impose the numeric standards. The fact that employees will be made aware of the existence of a [Memorandum of Understanding] on the implementation of the new standards, absent Proposal , would bolster misconceptions about the relationship between the [U]nion and the numeric standards.
Id. at 20. The Union also contends that inclusion of Proposal 7 in the parties' agreement would not impede implementation of the new standards and points out that the Agency does not allege any interference with management rights, applicable law or Government-wide regulation.
B. Analysis and Conclusions
We reject the Agency's argument that the proposal does not concern a condition of employment. As the Authority stated in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1396 (1987), "it is clear that the development of performance appraisal plans directly affects the employment relationship of bargaining unit employees." Therefore, Proposal 7, which records the Union's position concerning the Agency's implementation of numeric standards of performance, concerns a condition of employment of unit employees. Because the Agency does not assert any other basis for finding the proposal to be nonnegotiable, and no basis is otherwise apparent, we find Proposal 7 to be within the Agency's duty to bargain. See American Federation of Government Employees, AFL-CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA 329, 338-39 (1986) (Proposal 8).
VII.Proposal 8 [Applicable to Fairfield office]
For purposes of receipt dates, the receipt date for G[eneric] J[ob] T[ask] 14 will be the receipt date entered properly by the D[ata] R[eview] T[echnician] on the review sheet and/or SSA-250.
A. Positions of the Parties
The Agency argues that Proposal 8 is nonnegotiable "in that it would prohibit [the Agency] from defining elapsed processing time in any other manner for purposes of applying [its] numeric standards. It thus excessively interferes with [the Agency's] right to evaluate employees and direct work. A similar proposal has been declared nonnegotiable by the Federal Labor Relations Authority." Memorandum at 2-3.
The Union states that the proposal would assure an accurate accounting of the time period during which an employee has responsibility for a given work assignment so that the employee's performance appraisal would be based exclusively on actual work on the assignment. Under the proposal, according to the Union, periods when the work is not under the employee's control would be excluded from the appraisal process. Therefore, the Union contends, the proposal "is an appropriate arrangement for employees adversely affected by the exercise of the management implementation [o]f numeric performance standards." Reply Brief at 21.
The Union points out that the proposal concerns the recordation system already established by management, and, consequently, does not alter the existing requirements covering the processing of cases or the control of work flow. The Union argues that:
the [p]roposal doesn't add any new requirement concerning the processing of cases or the system for controlling workflow. If the employer were to disestablish the procedure it has in place whereby the date a case enters the relevant phase is part of the case control system, then Proposal  would be mooted. Nothing in the [p]roposal requires the employer to continue to record and use such date in its processing and/or performance appraisal systems.
Rather, the receipt date for the task entitled GJT 14, if it is to be used at all, should be accurate; in order that the employer can assess employee timeliness, it must know when the employee actually began to be accountable for the timely performance of GJT 14 work.
Id. (emphasis in original). The Union also contends that the reference to "the DRT" in the proposal does not interfere with the Agency's authority to assign work. Rather, the Union states, the reference is to the position to which management has assigned the responsibility for recording the receipt date. The Union describes the proposal as being "keyed to address primarily the act of recording the receipt date, by whichever individuals or positions the employer may elect to have that work performed." Id. at 22.
B. Analysis and Conclusions
Proposal 8 would define the term "receipt date" for one of the job tasks (GJT 14) assigned to unit employees. The Union has not provided us with a description of GJT 14. It appears from the Union's statements, however, that the job task is designed to measure the timeliness of an employee's performance. The Union asserts, in this regard, that Proposal 8 would establish the point at which employees are "accountable for the timely performance of GJT 14 work." Id. at 21.
Consistent with the Union's statement of intent, we conclude that Proposal 8 does not address only the application of performance standards. The proposal requires that measurement of performance under GJT 14 begin on a particular date. By defining the point from which the measurement of performance under GJT 14 must begin, the proposal would prohibit the Agency from establishing another point from which to measure timeliness and accountability. Accordingly, the proposal conflicts with the Agency's right to determine the content of performance standards which assess the timeliness of employees' work.
In reaching our conclusion, we reject the Union's position, noted above, that the objective of Proposal 8 is not to limit management in its method of assigning work or directing employees. The wording of the proposal contradicts the Union's claim that the proposal does not require the Agency to use the date specified as the starting point in applying its timeliness standard for the term of the negotiated agreement.
We find, therefore, that Proposal 8 requires the Agency to negotiate over the timeliness of its employees' work product and, hence, on the content of performance standards. Accordingly, Proposal 8 directly interferes with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work. See American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 729-30 (1987) (proposal providing that "[t]imeliness of work will begin as of the date the employee is assigned to perform the work in a timely manner" held to be nonnegotiable because it directly interfered with the agency's rights to direct employees and assign work).
As the proposal directly interferes with management's rights, it is outside the duty to bargain unless the proposal constitutes an appropriate arrangement under section 7106(b)(3). In this regard, the Union contends that Proposal 8 "is an appropriate arrangement for employees adversely affected by the exercise of the management implementation [o]f numeric performance standards." Reply Brief at 21.
In West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990), we stated that, consistent with the court's decision in Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989), we would determine whether proposals are appropriate arrangements for employees adversely affected by changes in job requirements by "examin[ing] the relevant facts to measure the impact of management's imposition of, or changes in, job requirements of unit employees to determine whether the employees are adversely affected by the exercise of management's right to assign work." See also National Association of Government Employees Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), for a discussion of section 7106(b)(3).
Other than its assertions that employees are required to work "more quickly and with greater accountability" under the new standards, the Union ha