39:0731(62)NG - - NTEU and Treasury, IRS - - 1991 FLRAdec NG - - v39 p731



[ v39 p731 ]
39:0731(62)NG
The decision of the Authority follows:


39 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

(Agency)

0-NG-1754

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 21, 1991

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 two provisions that were disapproved by the Agency head in the course of review of a collective bargaining agreement under section 7114(c) of the Statute. The provisions concern the quantitative measurement of an employee's work for the purposes of performance evaluations.(1)

For the reasons discussed below, we find that both provisions directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In addition, we find that Provision 2 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, we find that Provision 1 is nonnegotiable and that Provision 2 is negotiable.

II. Provision 1

The chapter president, chief steward and all other stewards who spend eighty (80) or more hours on bank time in a two-quarter rating period will be exempt from a measured evaluation for that period.

A. Positions of the Parties

1. Agency

The Agency contends that the provision would have the same effect as a proposal found nonnegotiable in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 727 (1987) (Office of Personnel Management). The Agency maintains that this provision would limit management's ability to evaluate certain union officials even in situations where an accurate measured evaluation could be obtained. Consequently, the Agency argues that the provision interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

2. Union

The Union first maintains that the provision is a procedure and does not interfere with management's rights. Contrary to the Agency's argument, the Union contends that the provision in this case is distinguishable from the proposal in Office of Personnel Management. The Union contends that unlike the proposal in that case, Provision 1 does not prevent management from evaluating the Union official. The Union maintains that the provision merely establishes how the union official's work will be counted for evaluation purposes.

In support of its position, the Union argues that employees are evaluated by both subjective and objective methods. The Union contends that an objective (measured) evaluation is based on a numerical count of employees' work, which is not always suitable for union representatives who spend much of the evaluation period on official time. The Union contends that the provision addresses only the objective or measurable aspects of an employee's work. The Union argues that the provision does not prevent a supervisor from evaluating any portion of a union representative's work or require a supervisor to use different factors or criteria in an evaluation. Rather, according to the Union, under the provision the supervisor would do so subjectively by taking into account the time spent by the employee in performing representational functions. Consequently, the Union argues that the provision is a negotiable procedure.

In the alternative, the Union asserts that the provision is an appropriate arrangement under the framework established in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). The Union first argues that an employee who spends a portion of his or her time performing representational functions is adversely affected by a numerical evaluation that does not take into account representational work. The Union contends that because an employee cannot change the Agency's method of counting work, that employee can avoid those adverse effects only by not exercising his or her statutory right as an employee representative. In addition, the Union asserts that the provision does not prevent management from evaluating the employee's work. Consequently, the Union maintains that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. The Provision Directly Interferes with Management's Rights to Assign Work and Direct Employees

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 that establish criteria governing the content of critical elements of performance and performance standards 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 (1987) (POPA), aff'd 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, 562-63 (D.C. Cir. 1982), affirming National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980).

In contrast, proposals that relate only to the application of critical elements and performance standards do not conflict with management's rights to direct employees and assign work, 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 National Treasury Employees Union v. FLRA, 767 F.2d 1315, 1318 (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 that absolve employees of accountability for meeting specific levels of performance are nonnegotiable because they preclude management from establishing performance standards to evaluate employees in all circumstances. 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). Similarly, proposals that make adjustments or changes in production expectations are nonnegotiable because they interfere with management's discretion to determine the standards of work production to be required of employees. See for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, and Mid-America Program Service Center, Kansas City, Missouri, 33 FLRA 454, 461-62 (1988); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1398 (1987), affirmed as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).

Contrary to the Union's argument, we find that the provision does modify the criteria that management will use to evaluate the performance of certain union officials because it would require the Agency to use only subjective criteria for evaluation periods during which a Union official has spent a specified amount of time on representational functions. As the current performance standards establish both subjective and objective criteria for evaluations, the provision would modify the content of those performance standards under the specified circumstances. Consequently, the provision directly interferes with management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. See National Treasury Employees Union and Department of Health and Human Services, Office of Hearings and Appeals, 34 FLRA 1022, 1027 (1990) (Office of Hearings and Appeals).

2. The Provision Is Not a Negotiable Appropriate Arrangement Under Section 7106(b)(3) of the Statute

In analyzing a case under section 7106(b)(3) of the Statute, the Authority reviews all proposed arrangements that seek to ameliorate the adverse effects of the exercise of a management right on the facts and circumstances in each particular case. National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 840-41 (1990) (Naval Facilities Engineering Command). As a threshold matter in these cases, the Authority will determine whether a proposal or provision is an arrangement for employees adversely affected by the exercise of management rights by examining "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Kansas Army National Guard, 21 FLRA at 31. Proposals addressing "purely speculative or hypothetical concerns, or which are otherwise unrelated to management's exercise of its reserved rights," will be excluded from consideration as appropriate arrangements. American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986). Where an adverse effect is reasonably foreseeable, and the disputed provision or proposal is intended to be an arrangement for employees adversely affected, we will proceed to examine whether the provision or proposal excessively interferes with management's rights. Naval Facilities Engineering Command, 36 FLRA at 841.

As a threshold matter in this case, we find that the provision establishes an arrangement for union officials adversely affected by the exercise of management's rights. The intent of the provision is to ameliorate the effects of a quantitative evaluation on union officials who spend a significant amount of official time on representational activities. It is realistic to conclude that a union official who spends a significant amount of official time on representational functions could not meet a quantitative standard established for employees who spend 100 percent of their time performing their primary job duties. The provision attempts to ameliorate any adverse effects on such employees, by precluding a supervisor, in certain circumstances, from rating the employee on the quantitative factor of the evaluation. Consequently, we find that the provision is intended as an arrangement for adversely affected employees.

We must now determine whether the provision is appropriate or whether it excessively interferes with management's rights. See Kansas Army National Guard, 21 FLRA 24. As discussed above, the provision would benefit union officials who spend a portion of their work time performing representational functions by preventing them from being adversely affected in their performance rating because they spent time performing functions that are sanctioned by the Statute. However, the provision also interferes with management's rights.

Based on the language of the provision, we find that it excessively interferes with management's rights. As the Union stated, the employees are evaluated on both subjective and objective (measured) criteria. The provision would prevent management from evaluating an employee in a measured fashion if that employee had spent a specified amount of time on representational functions. In doing so, the provision completely eliminates one factor from an employee's performance evaluation. In addition, the provision imposes an absolute requirement on management's action. The provision does not allow for exceptions in situations where an accurate measured evaluation could be obtained even though the employee had spent a specified amount of time on representational activities. Based on these considerations, we find that the interference with management's rights is excessive and outweighs the benefit to employees. Consequently, we find that the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

In summary, we find that the provision directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We find further that the provision is intended as an arrangement for adversely affected employees and that it excessively interferes with management's rights. Therefore, we find that the provision is not a negotiable appropriate arrangement under section 7106(b)(3) of the Statute, and is outside the Agency's duty to bargain.

III. Provision 2

For purposes of this Agreement, the determination that a rating is valid and indicative involves a decision that the data is correct (valid) and that the rating is an accurate and complete description of an employee's performance. Perfomance on one OFP that does not reflect the employee's usual level of performance should not be allowed to unduly influence an overall rating.

(only the underlined sentence is in dispute)

A. Positions of the Parties

1. Agency

The Agency contends that the provision interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Citing the Authority's decision in Office of Personnel Management, 28 FLRA 714, the Agency maintains that the provision interferes with management's rights because it places a substantive limitation on the aspects of an employee's work that may be evaluated.

2. Union

According to the Union, under the evaluation system applied to Agency employees in question, performance factors such as quality and quantity are divided into counting classifications, labeled Organization, Function and Program (OFP), which cover the various aspects of an employee's work. The Union states that when evaluating an employee, a supervisor reviews the performance in each OFP to develop the overall score for an evaluation factor. The Union argues that the provision is intended to deal with situations where an employee's performance in one OFP is not reflective of his or her overall performance and is intended to prevent one OFP from unduly influencing the evaluation.

The Union contends that the provision is an appropriate arrangement for employees adversely affected by management's exercise of its right to assign work. In evaluating the provision under those criteria, the Union first argues that the prov