38:0110(15)NG - - AFGE Council 147 and HHS, SSA, Phoenix, AZ - - 1990 FLRAdec NG - - v38 p110



[ v38 p110 ]
38:0110(15)NG
The decision of the Authority follows:


38 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 147

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

TELESERVICE CENTER

PHOENIX, ARIZONA

(Agency)

0-NG-1708

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 13, 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 case concerns the negotiability of three provisions of a negotiated agreement which were disapproved by the Department of Health and Human Services, Social Security Administration, under section 7114(c) of the Statute.

The rejected provisions were negotiated subsequent to the Agency's decision to implement new performance standards, specifically numeric performance indicators, for Teleservice Representatives (TSRs) at the Arizona Teleservice Center. The first two provisions concern "downtime," the duties assigned to employees when they are not engaged in direct telephone contact. Provision 1 requires the Agency to "reasonably insure that qualified volunteers are assigned an equal amount of downtime in each six month period." Petition for Review at 2. Provision 2 requires that, "[t]o the extent feasible, the [Agency] shall insure that employees are not statistically advantaged or disadvantaged by the assignment of downtime." Id. at 3. Provision 3 requires that "when an absence of work makes a level of performance unattainable[,]" such fact is to be considered "a factor that is beyond the control of the employee." Id.

For the following reasons, we find that Provisions 1, 2 and 3 are negotiable.

II. Provisions 1 and 2

Provision 1

Article 10. Downtime. Section b. To the extent that it does not interfere with the agency's mission and objectives, the employer shall reasonably insure that qualified volunteers are assigned an equal amount of downtime in each six month period.

Provision 2

Article 10. Downtime. Section c. To the extent feasible, the Employer shall insure that employees are not statistically advantaged or disadvantaged by the assignment of downtime.

A. Positions of the Parties

The Agency argues that because Provision 1 involves the assignment of downtime it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In addition, the Agency claims that because Provisions 1 and 2 concern the content of performance standards they also directly interfere with managment's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work.

As to its claim that Provision 1 concerns the assignment of work, the Agency notes that the majority of the work of the TSRs involving interviewing claimants, recipients, beneficiaries and the public regarding social security claims is accomplished on the telephone. The Agency states further, that "'downtime' refers to those duties which the agency assigns to employees which do not entail telephone contact." Statement of Position at 2-3. In other words, "'downtime' is just another duty" of the TSRs. Id. at 3. Thus, the Agency concludes that because Provision 1 "requires management to insure that qualified volunteers are given 'equal' amounts of downtime in a six month period[,]" it is inconsistent with managment's right to assign work under section 7106(a)(2)(B) of the Statute. Id.

As to its claim that Provisions 1 and 2 are nonnegotiable because they concern the content of performance standards, the Agency contends that proposals involving matters such as downtime "pertain to the exercise by management of its authority to establish performance standards." Id. The Agency, quoting the Union's Petition for Review, asserts that "the Union concedes . . . that downtime duties 'occupy time employees would otherwise use in performing assigned work which reflects statistical indication of the employees' performance.'" Id. at 4. Consequently, the Agency argues that because Provisions 1 and 2 concern the content of performance standards, they are inconsistent with section 7106(a)(2)(A) and (B) of the Statute.

Finally, as to the Union's claim that Provisions 1 and 2 constitute appropriate arrangements, the Agency asserts that the Union "merely alleged" that the disputed provisions are appropriate arrangements. Id. at 7. According to the Agency, "the Union has failed to meet its burden of showing how employees will be detrimentally affected by management's actions, and how the proposals will address or compensate for actual or anticipated 'adverse effects.'" Id.

The Union asserts that "the portion of total employee work time . . . which is spent on downtime has a direct bearing on performance assessment." Reply Brief at 2. The Union contends that if TSRs are given "significantly unequal assignments of downtime[,]" they will be "adversely affected and subject to an arbitrary and capricious, non-objective performance appraisal system" which, according to the Union, is inconsistent with the requirements of 5 U.S.C º 4302. Id. (footnote omitted).

The Union contends that Provisions 1 and 2 would be "applicable only when and to the extent there is no conflict between that requirement and the Employer's mission and objectives." Id. at 3. The Union further asserts that the Provision 1 only "imposes an obligation on the [Agency] . . . to provide approximate equality in the assignment of downtime duties." Id. The Union asserts that the Provisions 1 and 2 do not "insulate employees from penalties attributable" to their work assignments. Id. at 6.

Moreover, the Union asserts that because the provisions "recognize the Agency's right to determine among which employees downtime duties will be distributed (by including the language 'qualified'), the provisions involve nothing more than the procedures which will be used to determine when an employee to whom management in its discretion has already assigned downtime work will perform" those particular duties. Id. at 3. (emphasis in original). The Union claims that the provisions constitute a "procedure[] by which the determination to assign both telephone work and downtime work is to be carried out." Id. at 7.

The Union contends that Provisions 1 and 2 "do not affect the . . . content of appraisal systems or performance standards[] and do not require their modification." Reply Brief at 5. The Union asserts that "application of performance standards is not the exclusive purview of management, and . . . corrective action can be negotiated or ordered through arbitration so long as there is no interference with the content of performance standards and elements." Id. (emphasis in original). The Union concludes that "[n]o employee who was provided the limited equity" called for by the provisions "would be immune from the . . . standards established by the Agency[.]" Id. at 5-6.

Finally, the Union asserts that "[i]n the event the Authority should determine" that any disputed provision conflicts with a management right, "that provision also is an appropriate arrangement for employees affected by the exercise of a management right." Petition for Review at 2.

B. Analysis and Conclusions

1. Provision 1 Does Not Directly Interfere With Management's Right to Assign Work

Management's right to assign work includes the right to determine the particular qualifications and skills necessary to perform the work and the right to make judgments in determining whether particular employees meet those qualifications. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513 (1990) (Proposal 2). However, proposals providing for selection of particular employees to perform work, from a group of employees who are determined by management to be qualified to perform that work, do not interfere with management's right to assign work, and, therefore, are negotiable. See, for example, Id.

For example, where management establishes more than one shift during which the same work is performed and the affected employees have the required qualifications and skills to perform the duties, a proposal concerning which employees will be assigned to the shifts does not directly interfere with the agency's right to assign work. Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 687 (1984). Similarly, a provision requiring overtime to be offered equitably among employees determined by the agency to be qualified for the overtime work does not directly interfere with the agency's right to assign work. American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 503-04 (1987).

Provision 1 requires the Agency, "[t]o the extent that it does not interfere with the agency's mission and objectives," to equitably distribute downtime assignments to "qualified volunteers." As plainly worded, therefore, the provision preserves the Agency's right to determine the qualifications of the TSRs assigned to any particular downtime assignment and to assign particular downtime assignments only to those TSRs whom the Agency determines possess the qualifications and skills needed for such assignments.

We note, in this regard, that the Agency does not assert, and the record does not otherwise demonstrate, that all TSRs are not equally qualified to perform downtime assignments. In fact, it appears from the record that all TSRs regularly perform downtime assignments.

In National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1506-08 (1987) (BLM) aff'd in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989), the Authority held that a provision requiring the agency to attempt to equalize overtime work among those employees in the unit who are already assigned to perform that work was negotiable. In our view, Provision 1 has the same effect as the disputed provision in BLM.

Provision 1 requires the Agency to attempt to equalize downtime assignments among the TSRs. As noted previously, it appears from the record that all TSRs are qualified to perform, and regularly perform, downtime assignments. Even if all TSRs were not equally qualified, however, the provision preserves the Agency's right to determine requisite qualifications and make assignments consistent with those determinations. Accordingly, we conclude that Provision 1 does not directly interfere with the Agency's right to assign work. Compare ACTION Employees Local, American Federation of State, County and Municipal Employees and ACTION, 31 FLRA 1053, 1057-58 (1988) (proposal seeking to have consistent workloads in offices throughout country held to be nonnegotiable because it would require management to limit the amount of work assigned to employees in certain offices).

In so concluding, we note, in response to the Agency's argument, that nothing in the wording of Provision 1 or in the record supports a conclusion that the provision would limit the Agency's right either to make particular downtime assignments or to consider its overall work exigencies when making assignments. We also note that Provision 1 does not require the Agency to institute downtime assignments. The Agency has already provided for downtime in the TSRs' work assignments. Therefore, we need not address the Agency's assertion that a proposal requiring the institution of downtime is nonnegotiable. Finally, nothing in the provision would prevent the Agency from assigning downtime in the event that there were no volunteers for the assignments. Instead, Provision 1 speaks only to assignments among volunteers.

2. Provisions 1 and 2 Do Not Concern the Content of Performance Standards

Proposals requiring management to adjust or change performance expectations in certain circumstances have been held to dictate the content of applicable performance standards and, thereby, to directly interfere with management's rights to direct employees and assign work. 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), aff'd as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).

As noted above, however, Provision 1 requires the Agency to attempt to equalize downtime assignments among the TSRs. Nothing in the wording of Provision 1 or in the record indicates that Provision 1 obligates the Agency to change the content of its existing performance standards or the manner in which it applies those standards. In addition, nothing in the wording of Provision 1 or in the record restricts the Agency's ability to promulgate new performance standards. That is, Provision 1 solely concerns the assignment of downtime and is negotiable because it preserves the Agency's right to determine the qualifications of the TSRs assigned to any particular downtime assignment and to assign downtime consistent with those determinations. Consequently, Provision 1 is not inconsistent with the Agency's rights under section 7106(a)(2)(A) and (B) to determine the content of performance standards.

Provision 2 requires the Agency, "[t]o the extent feasible, to insure that employees are not statistically advantaged or disadvantaged by the assignment of downtime." In our view, Provison 2 constitutes a restatement of the requirement of Provision 1 that downtime be equitably distributed among qualified volunteers. That is, in order to comply with the requirement to ensure that employees are not statistically advantaged or disadvantaged by the assignment of downtime, the Agency would be obligated to assign downtime in an equitable manner.

Furthermore, we note that nothing in the wording of Provision 2 or in the record indicates that Provision 2 obligates the Agency to change the content of its existing performance standards or the manner in which it applies those standards. In addition, nothing in the wording of Provision 2 or in the record restricts the Agency's ability to promulgate new performance standards. Provision 2 merely reinforces the requirement to equalize downtime assignments by obligating the Agency to ensure that employees are not advantaged or disadvantaged statistically by the distribution of downtime. In other words, Provision 2, like Provision 1, solely concerns the assignment of downtime and, like Provision 1, is negotiable because it imposes no restrictions on the Agency's ability to determine the qualifications of the TSRs assigned to any particular downtime assignment and or to assign downtime consistent with those determinations.

We conclude, therefore, that because Provision 2 also does not concern the content of performance standards, Provision 2 also does not interfere with the Agency's rights under section 7106(a)(2)(A) and (B) to determine the content of performance standards.

In sum, we reject the Agency's assertion that Provision 1 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. We also reject the Agency's claims that Provisions 1 and 2 directly interfere with the Agency's rights under section 7106(a)(2)(A) and (B) to determine the content of performance standards. Accordingly, Provisions 1 and 2 are negotiable.

III. Provision 3

Article 12. Miscellaneous. Section e.

When rating employees or otherwise applying performance standards/indicators, the Employer shall consider factors which are beyond the control of the employee.

The parties agree that when an absence of work makes a level of performance unattainable this is a factor that is beyond the control of the employee.

In the event that the head of the agency declares this proposal non-negotiable, the parties will resume bargaining on this matter within 30 days of the union's receipt of the agency's declaration.

(Only the underlined portion of the provision is in dispute.)

A. Positions of the Parties

The Agency asserts that Provision 3 "would require management to alter the timeliness and/or productivity goals which it has established . . . ." Statement of Position at 7. The Agency asserts that the provision is nonnegotiable "because it interferes with management's right to determine the content of performance standards." Id. at 5.

As noted earlier in this decision, the Agency disputes the Union's claim that Provision 3 constitutes an appropriate arrangement. Instead, the Agency asserts that the Union "merely alleged" that the disputed provisions are appropriate arrangements. Id. at 7. According to the Agency, "the Union has failed to meet its burden of showing how employees will be detrimentally affected by management's actions, and how the proposals will address or compensate for actual or anticipated 'adverse effects.'" Id.

The Union asserts that Provision 3 is distinguishable from proposals which the Authority found to be nonnegotiable because they prevented "an employer from considering certain instances of performance if those instances were not entirely within the employees' control." Reply Brief at 6. The Union contends that the provision "permits the Employer to include in its performance evaluation all instances of employee performance, including those that may have been affected by factors outside the employee's control." Id. According to the Union, the Agency "remains free to use the instance [of performance beyond an employee's control] as part of the performance appraisal of the employee." Id.

Finally, as stated earlier in this decision, the Union asserted that "[i]n the event the Authority should determine" that any disputed provision conflicts with a management right, "that provision also is an appropriate arrangement for employees affected by the exercise of a management right." Petition for Review at 2.

B. Analysis and Conclusions

In American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276 (1990) (SSA, Vallejo), we considered the negotiability of three proposals (Proposals 1 through 3) requiring the agency to "consider" various factors, including factors "outside the control of the employee," in assessing employee performance. We concluded that the proposals did not directly interfere with the agency's rights to direct employees and assign work:

The proposals would not obligate the Agency to change any of its existing performance standards and would not inhibit the [a]gency in promulgating new standards. The proposals, moreover, would not require the [a]gency 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 [u]nion's explanation of their intent, is to identify certain circumstances which management should consider when evaluating employee performance.

Id. at 1282 (citation omitted). We compared the proposals in SSA, Vallejo 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 1000 (1990) (SSA, Hearings and Appeals). We stated that it was clear from the record in SSA, Hearings and Appeals that "the provisions were intended to require management not only to review the specified factors . . . but also to require management to modify the level of work required of an employee to achieve a given performance rating." SSA, Vallejo, 35 FLRA at 1282.

The first sentence in Provision 3, which is not in dispute, provides that "[w]hen rating employees or otherwise applying performance standards/indicators, the [Agency] shall consider factors which are beyond the control of the employee." The disputed portion of Provision 3 provides that "when an absence of work makes a level of performance unattainable" that fact is to be considered a "factor that is beyond the control of the employee." The Union explains that the provision requires the Agency only "to consider, when appraising