38:0244(26)NG - - AFGE Local 2879 and HHS, SSA, Chula Vista District, San Diego, CA - - 1990 FLRAdec NG - - v38 p244


[ v38 p244 ]
38:0244(26)NG
The decision of the Authority follows:


38 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2879

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

CHULA VISTA DISTRICT

SAN DIEGO, CALIFORNIA

(Agency)

0-NG-1777

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 20, 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 one provision of a mid-term agreement that was disapproved by the Agency head following a review of the agreement pursuant to section 7114(c) of the Statute.

The provision concerns the implementation of the Chula Vista District Work Measurement Performance System (System). The System establishes employee work evaluation procedures that include, for example, auditing procedures, progress reviews, performance evaluation reviews, desk reviews, and a Desk Review Guide. The System provides for a minimum of five unannounced audits of employee performance per month (except in the months of February and June) and establishes Desk Review procedures which may be applied to evaluate employee performance.

The first sentence of the provision would require the Agency to provide employees with advance notice of 1 week before a desk review of employee performance is conducted. We find that Sentence 1 is nonnegotiable because it: (1) directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute; (2) does not constitute a negotiable procedure under section 7106(b)(2); and (3) does not constitute an appropriate arrangement under section 7106(b)(3).

The second sentence of the provision would require that desk reviews "reflect" employee absences and additional adjudication handled by an employee in the 30-day period preceding a desk review. We find that Sentence 2 does not directly interfere with management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute and, therefore, is negotiable.

II. Provision 1, Sentence 1

Employees will be given a minimum of one week's notice prior to any desk review.

A. Positions of the Parties

1. Agency

The Agency contends that Sentence 1 of the provision, by preventing the use of unannounced desk reviews, directly interferes with management's exercise of its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Agency's Statement of Position at 3. The Agency argues that, because the purpose of evaluating employee performance by using unannounced desk reviews is to obtain the most representative sample of the employees' daily work product, Sentence 1 would prevent management from using the method--unannounced desk reviews--that "it deems most appropriate for [that] purpose." Id.

The Agency also contends that Sentence 1 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency argues that Sentence 1 excessively interferes with management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) because it prevents the Agency from evaluating a representative sample of an employee's everyday performance.

The Agency relies on National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 29 FLRA 61 (Proposal 1) (1987) (Defense Language Institute) to support its position.

2. Union

The Union contends that Sentence 1 constitutes a negotiable procedure under section 7106(b)(2) of the Statute because it does not interfere with the Agency's right to conduct unannounced reviews of employees' performance. The Union states that "the [Agency's] rights to conduct unannounced reviews of employee work are exercised under the audit portion of the System." Union's Response to the Agency's Statement of Position at 5 (emphasis in original). The Union explains that, under the audit procedures of the System: (1) at least 5 items per month will be reviewed for each employee, (2) the 5 items may be selected from any point in the workflow process, and (3) the 5 items may be part of a desk review. Id. at 5-6.

The Union argues that the Agency "chose to structure its System so that unannounced reviews occur under the Audit Procedures, rather than under the Desk Review" and that there is no requirement that "each and every aspect of the [Agency's] System must include" a provision for "unannounced evaluation." Id. at 6-7 (emphasis in original). The Union concludes that because the Agency can conduct unannounced evaluations through the audit procedures, the requirement of Sentence 1 that employees be given notice prior to a desk review does not directly interfere with management's rights. The Union distinguishes the Authority's decision in Defense Language Institute on the ground that Sentence 1 does not prevent unannounced evaluations of employee performance.

The Union also argues that even if the Authority concludes that Sentence 1 directly interferes with management's rights under section 7106, Sentence 1 is nevertheless negotiable as an appropriate arrangement under section 7106(b)(3). The Union claims that Sentence 1 is an "arrangement" that would be "triggered by the [Agency's] decision to implement its System." Id. at 8. The Union states that Sentence 1 would mitigate against the adverse effects of the System which result from "its use to take performance-based adverse actions against employees[.]" Id.

In evaluating the competing interests of management and employees, the Union notes that: (1) the Agency's interest in evaluating a representative sample of an employee's work is not affected by Sentence 1, because such a sample would be available through the audit procedures; (2) Sentence 1 is consistent with the efficient conduct of the Agency's functions, because unannounced desk reviews "would add an inefficiency to the evaluation process and would make meeting operational objectives more difficult"; and (3) advance notice of desk reviews would contribute to "operational improvement" by allowing employees to collect "examples of programmatic errors and deficiencies" to be used for "corrective action[.]" Id. at 9.

The Union also contends that Sentence 1 would result in: (1) improving employee morale, because it would indicate that management "trusts the employee to provide a representative days' output even with advance notice of the Desk Review"; (2) avoiding unnecessary stress, because advance notice would eliminate employee uncertainty; (3) coordinating leave use with the supervisor, because advance notice would permit the employee and the supervisor to make "necessary adjustments[.]" Id. at 10. The Union concludes that, "balancing the interests of the employee and the employer," Sentence 1 results in "no significant interference with the [Agency's] system." Rather, Sentence 1 produces "a significant amelioration of the stress of uncertainty caused by unannounced reviews." Id. at 11.

B. Analysis and Conclusions

We find that Sentence 1: (1) directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute; and (2) is not a negotiable procedure under section 7106(b)(2). We also find that Sentence 1 does not constitute an appropriate arrangement under section 7106(b)(3). Accordingly, we conclude that Sentence 1 is nonnegotiable.

Sentence 1 would require the Agency to provide an employee with 1 week's advance notice of a Desk Review. The effect of the sentence, therefore, would be to prevent the Agency from using Desk Reviews to evaluate employee performance without giving employees advance notice of 1 week or more.

Proposals which require management to sample employees' work in a particular manner for purposes of performance evaluation directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1015-18 (1990) (West Point Elementary School). In particular, proposals which preclude management from auditing employees' work by the use of unannounced visits, and thereby preclude the use of the method that management has chosen to obtain a representative sample of employees' daily work product, directly interfere with management's rights to direct employees and assign work. Defense Language Institute, 29 FLRA at 63-65.

Because Sentence 1 of the provision would preclude management from using a particular method of monitoring or sampling employees' daily work performance, namely, unannounced desk reviews, we find, consistent with West Point Elementary School and Defense Language Institute, that Sentence 1 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We do not agree with the Union that because provision is made in the Agency's System for unannounced audits of employee performance, Sentence 1, precluding unannounced desk reviews, does not directly interfere with management's rights. Management has the right to determine the methods it will use to evaluate employees and the fact that it has chosen to use unannounced audits does not prevent it from exercising that right by determining that it will also use unannounced desk reviews to evaluate the performance of its employees. We conclude, therefore, that because management has the right to choose to use either one or both of the methods, a provision precluding the use of either one or both would directly interfere with the exercise of that right.

In finding that Sentence 1 directly interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute, we also conclude that it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See Defense Language Institute at 65. Proposals that directly interfere with the substantive exercise of a management right, like Sentence 1 of the provision in this case, are not negotiable as procedures under section 7106(b)(2). See Department of Defense v. FLRA, 659 F.2d 1140, 1151-52 (D.C. Cir. 1981), cert. denied sub nom. 455 U.S. 945 (1982).

We next determine whether Sentence 1 constitutes an appropriate arrangement under section 7106(b)(3). To determine whether Sentence 1 of the provision constitutes an appropriate arrangement, we must decide whether the sentence is (1) intended to be an "arrangement" for employees adversely affected by the exercise of a management right, and (2) "appropriate" because it does not excessively interfere with the exercise of management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).

More particularly, in determining, as a threshold matter, whether a proposal is an "arrangement" for adversely affected employees, we examine "the effects or foreseeable effects which flow from the exercise of" management's rights, "and how those effects are adverse." Kansas Army National Guard, 21 FLRA at 31. See also National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 841 (1990) (Naval Facilities Engineering Command). Proposals that address "purely speculative or hypothetical concerns, or that are otherwise unrelated to management's exercise of its reserved rights," will be excluded from consideration as appropriate arrangements. See Naval Facilities Engineering Command, 36 FLRA at 841. However, where an adverse effect is reasonably foreseeable, and the proposal at issue is intended to be an arrangement for those employees adversely affected, we will consider whether the proposal excessively interferes with management's rights.

The Union states that Sentence 1 is intended to minimize the adverse effects of the use of unannounced reviews as the basis for performance-based actions against employees. Certainly, a reasonably foreseeable consequence of the use of unannounced desk reviews to monitor employee performance is that those reviews would develop information adverse to an employee's performance appraisal. Sentence 1 mitigates against that possibility by giving employees an opportunity to better prepare their work for review. The Union also suggests that restricting the use of unannounced desk reviews would alleviate employee stress and reduce the disruptions of employee work. We find that it is reasonably foreseeable that employees may be adversely affected by the use of unannounced desk reviews and that Sentence 1 is designed to ameliorate those adverse effects. Accordingly, we conclude that Sentence 1 is an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute.

To determine whether a proposal is an "appropriate" arrangement because it does not excessively interfere with the exercise of a management right, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal outweighs the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-34. The question, therefore, is whether the burden imposed on the exercise of management's rights by Sentence 1 is excessive when weighed against the benefit the sentence affords employees.

The Agency claims that Sentence 1 excessively interferes with management's rights because, by precluding unannounced desk reviews, it prevents the Agency from obtaining a representative sample of an employee's everyday performance. The Union contends that preventing unannounced desk reviews would not impose a burden on the Agency because the Agency would be able to obtain such a sample through the audit procedures, which also involve an unannounced review of samples of an employee's work. See Section II.A.1 and 3 of the "Chula Vista District Work Measurement Performance System," Attachment to the Union's Petition for Review. See also Union's Response at 6. To the extent that the Union is claiming that the information derived from an audit duplicates the information derived from a desk review, the record does not support that claim.

The record indicates that an audit constitutes the review, on a random basis, of specific "items"--apparently, case files--to determine, for example, whether a claim is being disposed of according to applicable legal and regulatory requirements. See "Chula Vista District Audit Procedures" and "Chula Vista District Work Measurement Performance System," Attachment to the Union's Petition for Review. A desk review constitutes the review of employees' work process, including how employees organize their work, how they assemble files, how they process their workload, and the quality of their communication, both written and oral, with claimants. See "Desk Review Guide," Attachment to the Union's Petition for Review.

Given the differences in the scope of an audit and a desk review, it is clear that the information developed in the two procedures is different. The type of information that management would obtain from a random sample of "items" in an audit would not, as the Union claims, duplicate the type of information obtained in a desk review, whether announced or unannounced. Consequently, we conclude that the burden on management of being precluded from conducting desk reviews unless it provides employees with a minimum of 1 week's advance notice is significant.

Sentence 1 is intended to benefit employees by reducing interruptions resulting from desk reviews performed without an advance notice period, thereby permitting a more regular workflow, reducing the resultant stress, and affording employees an opportunity to correct deficiencies before the review. In our view, the benefit afforded employees under Sentence 1 does not outweigh the burden which the sentence imposes on management's right to determine the methods which it will use to monitor employee performance. Consequently, we find that the 1-week notice period required by Sentence 1 of the provision is excessive. Because employees are able to plan for the occurrence of a desk review, a minimum 1-week notice period increases the Agency's difficulty in obtaining information concerning the employees' day-to-day organization and management of their workload. See Defense Language Institute, 29 FLRA at 65-66. The 1-week notice period also makes it more difficult for the Agency to identify deficiencies in employees' day-to-day work procedures and to take corrective action. In our opinion, by depriving management of the information that it would obtain from desk reviews conducted with minimal notice to employees, the requirement, set forth in Sentence 1, that the Agency provide a 1-week notice period prior to a desk review places a significant burden on management's right to determine the methods by which it will evaluate employee performance.

As to the benefits afforded employees by the requirement, under Sentence 1, of 1 week's notice prior to a desk review, even assuming that there are interruptions associated with unannounced desk reviews and some inefficiencies result, management may make the judgment that those inefficiencies are justified by the information that is obtained. Moreover, to the extent that, as claimed by the Union, advance notice of 1 week prior to a desk review would reduce stress on employees and would allow employees to correct deficiencies so that management would not obtain adverse information that would affect employees' performance appraisals, we find that those benefits do not outweigh the impact such notice would have on management's ability to evaluate employees' day-to-day work performance.

Accordingly, we find that the burden placed by Sentence 1 on management's ability to obtain information about employees' day-to-day work performance is not outweighed by the benefits intended to be afforded employees by that sentence. We find, therefore, that the requirement of advance notice of 1 week prior to a desk review provided in Sentence 1 excessively interferes with management's right, under section 7106(a)(2)(A) and (B) of the Statute, to determine the methods by which it will evaluate employees. Consequently, we conclude that Sentence 1 is not an appropriate arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) and that it is nonnegotiable. See Defense Language Institute, 29 FLRA at 65-66. In concluding that the sentence in dispute, providing a notice period of 1 week before a desk review, is nonnegotiable, we take no position on the negotiability of a proposal providing a shorter period of notice.

III. Provision 1, Sentence 2

Desk reviews will reflect any absence and any additional adjudication time within the 30 day period preceding the review.

A. Positions of the Parties

1. Agency

The Agency contends that, by preventing management from evaluating an employee's ability to adapt and perform their assignments in unforeseen circumstances, Sentence 2 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency relies on National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62 (Provision 1) (1988) (Food and Nutrition Service) to support its position. The Agency also contends that Sentence 2 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because "the Authority has held that management's determination of the content of employees' performance standards and job requirements [does] not adversely affect employees[.]" Agency's Statement of Position at 5.

2. Union

The Union contends that Sentence 2 is "procedural in nature." Union's Response at 17. The Union states that Sentence 2 "merely requires making a notation that the employee had been absent or had been adjudicating claims for more than the usual amount of time, together with the amount of time involved." Union's Response at 13. The Union argues that "[m]aking that notation does not interfere with evaluating characteristics of the employee's work, such as adaptability[.]" Id. The Union concludes, therefore, that Sentence 2 is distinguishable from Food and Nutrition Service.

The Union also contends that Sentence 2 would not preclude the Agency from holding employees accountable for matters outside their control in applying performance standards and would not "insulate employees from penalties attributable to the occurrence of a work-related situation." Id. at 14. The Union also contends that Sentence 2 "does not contain or proscribe a performance standard" and "does not limit the employer's ability to establish performance standards[.]" Id. at 12, 14.

In the alternative, the Union contends that Sentence 2 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union argues that the sentence is applicable only after a Desk Review has been conducted by the Agency and does not prevent the Agency from exercising its right to evaluate employees. Id. at 14-15. The Union states that the sentence is intended to address the adverse effects on employee evaluations of the failure to reflect an employee's absence or additional worktime. Id. at 15. The Union also states that "noting the increased or decreased work time would not even require creating a record that the System would not otherwise require[.]" Id. at 15.

The Union argues that Sentence 2 would not prevent the Agency from using information derived from a desk review to evaluate an employee "merely because the employee had been absent or had been provided additional adjudication time" during the 30-day time period prior to the desk review. Id. at 16. The Union explains that the sentence "requires both information which could be beneficial to the employee as well as information which could indicate a lower evaluation." Id. at 18 (emphasis in original). The Union concludes that the Agency would not, therefore, be "prevented from applying an established performance standard to measure the employee's adaptability." Id. The Union contends that employees' interest in an accurate desk review is significant because performance based actions, whether a promotion or an adverse action, depend on the ability of the performance appraisal system "to provide an accurate reflection of past employee performance." Id. The Union concludes that, at most, Sentence 2 would "require that the [Agency] consider absence and additional work time when applying the performance standard relating to adaptability." Id. at 18 (emphasis in original).

B. Analysis and Conclusions

We find that Sentence 2 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We conclude, therefore, that Sentence 2 is negotiable.

Sentence 2 would require the Agency's desk review procedures to reflect employee absences and additional time spent in adjudication for the 30-day period prior to the desk review. The Agency contends that the provision directly interferes with its right to determine the content of its performance standards.

Proposals that require management to take certain factors into account in evaluating employees have the effect of substantively modifying the requirements of the performance standards being used in the evaluation and thereby directly interfere with management's right, under section 7106(a)(2)(A) and (B) of the Statute, to determine the content of those standards. See National Treasury Employees Union and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 34 FLRA 1000, 1004-07 (1990). On the other hand, proposals that identify certain information that management will consider when evaluating employees are negotiable. See 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, 1280-82 (1990) (Vallejo District Office).

Sentence 2 requires that desk reviews "reflect" certain information regarding employee performance. The Union contends that, "at most," the sentence requires management to "consider" that information in evaluating employees. We agree and we will interpret Sentence 2 in that manner for purposes of this decision. In our view, the term "reflect" merely requires that the Agency record the specified information as a part of a desk review; the term does not require the Agency to use the information being recorded in any particular manner in the evaluation of employees. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 36 FLRA 606 (1990) (proposal requiring management to count certain actions, but preserving management's discretion as to the significance under the agency's performance standards of the information derived from the counting of those actions, did not directly interfere with management's rights).

Because we find that the provision merely requires management to maintain a record of specific performance-related information, but does not dictate how management will use that information, we agree with the Union that Sentence 2 would not preclude management from evaluating how an employee adapts to changed circumstances or from determining the content of its performance standa