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 th