39:0857(71)NG - - AFGE, Local 2062 and VA, New Orleans Regional Office, New Orleans, LA - - 1991 FLRAdec NG - - v39 p857



[ v39 p857 ]
39:0857(71)NG
The decision of the Authority follows:


39 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2062

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

NEW ORLEANS REGIONAL OFFICE

NEW ORLEANS, LOUISIANA

(Agency)

0-NG-1816

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

February 26, 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 negotiability of one proposal involving adjustments to performance standards of rating specialists is at issue. The Union did not file a response to the Agency's statement of position.

In March 1990, the Agency notified the Union that it was changing the work-rate standards it would use in rating the performance of rating specialists, claims examiners who "rate" disability claims. In response, the Union submitted the proposal, which requires the Agency to make adjustments to the rating specialists' performance standards to correspond to the reduced productivity credit given to the rating specialists under the altered work-rate standards.

We conclude that the proposal is outside the duty to bargain because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and because it has not been established by the Union to be an appropriate arrangement under section 7106(b)(3) of the Statute.

II. Proposal

Work measurement studies were used to alter the Work-Rate Standard used to measure productivity of Rating Specialists employed at VA Regional Office New Orleans, effective 4-1-90. We propose that adjustments should be made in the Performance Standards of the Rating Specialists to reflect any adverse affect [sic] on measurement of productivity. We believe that the Rating Specialists' Performance Standards should be lowered two percent to correspond to the reduced credit value caused by the altered Work-Rate Standard.

III. Positions of the Parties

The Agency argues that because the proposal requires that performance standards be adjusted by lowering them by two percent, it concerns the content of performance standards, a matter it contends is nonnegotiable, citing Authority precedent. In this regard, the Agency contends that the proposal, which requires the adjustment of performance standards that measure productivity, would affect the quantity and timeliness of work production. For these reasons, the Agency argues that the proposal interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

In its petition for review the Union essentially contends that the proposal is negotiable because it seeks to make adjustments to offset any adverse effects from changes in productivity measurements used in performance standards. The Union asserts that changes made by the Agency in the work-rate standards would result in a two percent decrease in productivity credit given to the employees and that, therefore, they would receive two percent less credit if they continue to produce the same amount of work.

IV. Analysis and Conclusions

1. Management's Rights to Direct Employees and Assign Work

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 to establish performance standards. Proposals that establish criteria governing the content of performance standards and critical elements of performance are nonnegotiable because they directly interfere with management's rights to direct employees and assign work. National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA No. 25 (1991) (Provisions 2 and 3); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 385 (1987) (POPA), affirmed mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam); National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), affirming sub nom. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980). Consequently, proposals that require management to make adjustments or changes in production expectations mandate the content of performance standards and directly interfere with management's rights to direct employees and assign work because they interfere with management's discretion to establish performance standards and to identify critical elements. See, for example, 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); 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).

According to the explicit language of the Union's proposal, "adjustments should be made in the Performance Standards of the Rating Specialists to reflect any adverse affect [sic] on measurement of productivity. . . . the Rating Specialists' Performance Standards should be lowered two percent to correspond to the reduced credit value caused by the altered Work-Rate Standard." Therefore, the plain terms of the proposal require the Agency to make adjustments in the content of the performance standards. The Union makes no arguments to the contrary. Consequently, based on the consistent case precedent cited above, we find that the proposal constitutes a direct interference with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it requires the Agency to make adjustments in the content of performance standards, which interferes with management's discretion to establish performance standards and identify critical elements.

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

Although the Union has not specifically cited section 7106(b)(3) of the Statute in its petition for review, it is the Authority's view that the issue of whether the proposal is an appropriate arrangement within the meaning of that section inheres in the Union's arguments and the language of the proposal itself, which specifically refers to "any adverse [e]ffect on measurement of productivity." That is, the Union clearly indicates in its proposal and its arguments that the proposal was intended to address its concerns that employees are adversely affected by the changes the Agency has made in the way it measures productivity in its performance standards. See National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 498-99 (1990) petition for review filed sub nom. United States Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, No. 91-1045 (D.C. Cir. Jan. 24, 1991).

To determine whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) it is necessary to determine whether it 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 right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army).

In a March 22, 1990, memorandum to the Agency's Personnel Officer, attached to its petition for review, the Union states that these Agency "changes have and will make a significant impact on job performance and related to Production Efficiency." Specifically, the language of the proposal states that adjustments should be made "to reflect any adverse affect on measurement of productivity." Thus, as described by the Union, the proposal is intended to make adjustments to offset any adverse effects from changes in productivity measurements. Consequently, we find that the Union has intended the proposal to be an "arrangement" within the meaning of section 7106(b)(3) of the Statute.

Having found that the proposal constitutes an arrangement, it is necessary to determine whether the arrangement is "appropriate," within the meaning of section 7106(b)(3). To do so, we determine whether the proposal excessively interferes with management's rights: whether the negative impact on management's rights to direct employees and assign work is disproportionate to the benefits conferred by the provision on employees. See Kansas Army, 21 FLRA at 33. 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).

With regard to the appropriateness of the arrangement, the Union does not offer any meaningful arguments that would permit us to determine the issue of whether the negative effect on management's rights to direct employees and assign work would be disproportionate to the benefits conferred by the provision on employees. Indeed, the Union claims that the employees will be adversely affected by the Agency changes without any further explanation or elaboration. Consequently, we find that the Union has not established a sufficient record on which a determination can be made that the arrangement is "appropriate" within the meaning of section 7106(b)(3). See, for example, American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1085-86 (1990) (parties are responsible for creating the record upon which the Authority resolves negotiability disputes).

We conclude, therefore, that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute and that it is nonnegotiable because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

V. Order

The petition for review is dismissed.




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