44:0293(25)NG - - NTEU AND HHS, OHA - - 1992 FLRAdec NG - - v44 p293



[ v44 p293 ]
44:0293(25)NG
The decision of the Authority follows:


44 FLRA No. 25

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

OFFICE OF HEARINGS AND APPEALS

(Agency)

0-NG-1978

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 10, 1992

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). It concerns the negotiability of three provisions of a mid-term agreement, which were disapproved by the Agency head under section 7114(c) of the Statute.(1)

Provision 1 requires the Agency to credit employees with excused time for certain trips between employees' new and old offices. Provision 2 requires the Agency to grant employees certain excused time to perform proofreading. Provision 3 provides that employees will not be held accountable for delays in case processing that are caused by or related to the relocation of their offices. For the following reasons, we conclude that the three provisions are nonnegotiable.

II. Background

The provisions are part of a mid-term agreement between the parties concerning the impact and implementation of a temporary move of bargaining unit employees to a new location. The affected unit employees are staff attorneys who prepare drafts of decisions in Social Security disability cases for the Agency's Administrative Law Judges (ALJs). Although the affected employees were moved, the ALJs and the law library remained in the main building. The Union states, without dispute by the Agency, that the new location is "about a fifteen (15) minute walk from the main office . . . ." Reply Brief at 5.

III. Provisions 1 and 2 (2)

Provision 1

Section 14

Employees will be granted fifteen (15) minutes of excused time from regular duties (for which employees will be allowed credit on the monthly report form) per trip to obtain and refer to research materials in the main office and to go to the main office to confer with Administrative Law Judges. Employees will log trips on a form provided by the employer and will submit this form attached to the monthly report. If the Supervisory Attorney has a concern about the frequency of such trips, he/she will discuss the matter with the individual employee (and the union representative if said employee so wishes).

Provision 2

Section 20

Subject to the provisions of the second paragraph of this Section, employees will be required to go to the main office in order to do proof reading of rough drafts and finals. Employees will be provided with office space which will by [sic] reserved for this purpose. Employees will be given fifteen (15) minutes of excused time from regular duties per day to travel between [the] main office and [the] new office area to perform this function.

Further, employees will have the option of doing their initial draft proof reading in their private office at the new office location. These employees will be given an additional fifteen (15) minutes of excused time from regular duties per day to travel between the main office and the new office area for this purpose.

A. Positions of the Parties

1. The Agency

The Agency asserts that Provisions 1 and 2 interfere with its right to assign work under section 7106(a)(2)(B) of the Statute by determining "both what work shall be done and the timeliness of work performed." Statement of Position at 2. In this connection, the Agency argues that the provisions would require "management to allow 15 minutes whenever an employee decides it is necessary to do work in the other location." Id. The Agency also argues that, as the provisions involve such specific duties as conducting legal research and conferring with ALJs, the provisions "determine what work is to be done by employees . . . ." Id. at 3. Finally, the Agency asserts that the provisions interfere with the right to assign work by affecting its ability to determine the timeliness of employees' work and the aspects of the work to be evaluated.

2. The Union

The Union asserts that Provisions 1 and 2 are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute. The Union claims that employees are "adversely affected by the Agency's relocation of their offices, as they must now travel between the two offices in order to perform the decision writing duties . . . ." Reply Brief at 5. The Union maintains that if employees are not granted excused time for travel, "their production rate will be adversely affected, with a consequent decrease in their level of performance." Id. at 6. The Union explains that the provisions would ameliorate such adverse effects by "excluding the travel time from the time considered available to draft decisions." Id. at 5.

The Union further asserts that the burden imposed by the provisions on the exercise of management's rights is not excessive. First, the Union claims that "[t]he degree of discretion retained by the employee in deciding when 'it is necessary to work in the other location' is vastly overstated by the Agency . . ." because work requirements determine where and when the work must be done. Id. at 7. Further, the Union argues that it is established practice that employees "independently assess the need to conduct legal research on any given case." Id. In addition, the Union contends that Provision 1 gives management the right to "review the employee's exercise of this judgment and address any problems or abuses." Id. With regard to trips to the main building for proofreading, the Union states that if there are no decisions to be proofread, then Provision 2 would not apply.

The Union maintains that neither provision "determines, or in any way interferes with, what work is to be done by employees." Id. at 8. Moreover, the Union denies that the provisions "determine or affect the content of the Agency's performance standards." Id. at 9-10. According to the Union, the intent of the provisions "is merely to mitigate the adverse impact . . . [of] the application of these standards . . . ." Id. at 10.

B. Analysis and Conclusions

1. Direct Interference

The Union concedes that Provisions 1 and 2 directly interfere with the Agency's rights to direct employees and assign work. Moreover, such interference is clear. The Union states, in this regard, that the intent of the provisions is to exclude the time necessary to travel between the new and old offices "from the time considered available to draft decisions." Reply Brief at 5. The Union states further that the provisions "merely provide[] that employees will not be adversely affected with regard to their performance appraisals." Id. at 8. It is clear from these statements, which are consistent with the plain wording of the provisions, that the provisions would require the Agency to adjust, in a specified manner, the productivity and performance expectations used in evaluating employee performance. As such, the provisions directly interfere with the Agency's rights to direct employees and assign work. See, for example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 846-48 (1990) (Naval Facilities).

However, in concluding that the provisions directly interfere with the Agency's right to assign work, we reject the Agency's contention that, by referencing employees' work in obtaining research materials, conferring with ALJs, and proofreading, the provisions require "the assignment of specific duties." Statement of Position at 3. The Union states, and the Agency does not dispute, that these duties have already been assigned to affected employees and nothing in the provisions either requires the Agency to continue, or prohibits the Agency from continuing, to assign such duties.

2. Appropriate Arrangements

As Provisions 1 and 2 directly interfere with the Agency's rights to direct employees and assign work, they are nonnegotiable unless they constitute appropriate arrangements under section 7106(b)(3) of the Statute. In determining whether a provision constitutes an appropriate arrangement, the Authority first determines whether the provision is intended as an arrangement for employees adversely affected by the exercise of a management right. If the provision is so intended, the Authority then determines whether the provision is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).

The Union maintains, and the Agency does not dispute, that the time necessary for employees to travel between the old and new offices to perform certain assigned duties is "nonproductive time[.]" Reply Brief at 5. It is reasonable to conclude, in these circumstances, that the travel between offices could adversely affect employees' production rates and, in turn, their performance ratings. Provisions 1 and 2 would ameliorate these adverse effects by excluding the time spent travelling between work locations from the time used to calculate employees' productivity. Accordingly, we conclude that the provisions constitute arrangements within the meaning of section 7106(b)(3) of the Statute.

Having concluded that Provisions 1 and 2 are arrangements, we now consider whether they are appropriate.

In our view, the provisions would provide significant benefits to employees. In particular, the provisions would require management, in evaluating employees' productivity, to exclude 15 minutes per trip between worksites for certain functions from the time considered available for drafting decisions. As such, the provisions would, as noted previously, lessen the possibility that employees would receive lower performance appraisals because of reduced productivity. In addition, Provision 2 would permit employees to proofread decisions at either the main or the relocated office. In this regard, it appears from the wording of Provision 2 that employees have been provided private offices in the new location. Accordingly, insofar as employees preferred to perform proofreading assignments in the privacy of their new offices, Provision 2 would facilitate their ability to do so.

Although the provisions would offer significant benefits to employees, the provisions also would place severe restrictions on the Agency's rights to direct employees and assign work. We note, in this regard, that agencies have significant interests "in being able to hold employees accountable for their performance by establishing and enforcing performance standards." Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 815 (1991). The provisions would require the Agency to adjust performance expectations for trips made by employees between the old and new offices for certain functions. Provision 1 would apply to every trip made for research or conferring with ALJs, including trips that were deemed unnecessary by the Agency. Similarly, although Provision 2 would limit to 30 minutes per day the amount of time to be excused for proofreading, that amount of time also would be afforded at an employee's election.(3) It is clear that the provisions could require the Agency to exclude from consideration a considerable amount of time and, in turn, make significant modifications to its performance requirements. Although the relocation is intended to be temporary, these exclusions and modifications could severely hamper the Agency's ability to hold employees accountable for their work performance during the period of the relocation.

On balance, noting the broad nature of the provisions, we are not persuaded that the benefits provided employees by the provisions outweigh the significant impact of the provisions on the Agency's rights to direct employees and assign work. Consequently, we find that Provisions 1 and 2 excessively interfere with the Agency's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and are nonnegotiable.

IV. Provision 3

Section 21

Employees will not be accountable or adversely affected by any delays in case processing time caused by or related to the move or relocation of his or her office.

A. Positions of the Parties

1. The Agency

The Agency claims that Provision 3 directly interferes with its right to assign work because it would "shield employees from being accountable or adversely affected by any delay in case processing . . . ." Statement of Position at 4. In support, the Agency relies on Naval Facilities, 36 FLRA at 845-48.

2. The Union

The Union claims that Provision 3 is "intended as a general 'catch-all' provision . . . ." Reply Brief at 10. The Union states that it is reasonably foreseeable that travelling between the two offices will cause some delays in case processing. The Union states that the provision constitutes an appropriate arrangement and does not excessively interfere with management's rights to evaluate and discipline employees because, under the provision, the Agency would be free to evaluate or take action against employees for any reason that is not directly attributable to delays related to the move.

B. Analysis and Conclusions

As we noted previously, proposals which require management to take into account specific factors in assessing employee performance directly interfere with management's right to direct employees and assign work. See Naval Facilities, 36 FLRA at 846-48. Similarly, proposals which prohibit management from holding employees accountable for work performance, including performance that has been affected by matters outside the employees' control, directly interfere with management's right to direct employees and assign work. See National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 581-83 (1991).

The plain wording of Provision 3 requires that employees will not be held accountable for "delays in case processing time caused by or related to the move or relocation . . . ." As the plain wording of the provision would prohibit the Agency from holding employees accountable for their work performance in certain situations, the provision directly interferes with management's right to direct employees and assign work. See id.

The Union contends that Provision 3 is intended as an appropriate arrangement. According to the Union, the provision is intended to protect employees against performance-based and disciplinary actions related solely to the move. As plainly worded, Provision 3 would mitigate the adverse effects of delays in case processing time resulting from the office relocation. As such, the provision constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute.

Provision 3 would provide significant benefits to employees. The provision would preclude management from lowering employees' performance appraisals or from disciplining employees for case processing delays related to the move or relocation of their offices. There is no contention that such delays are within the control of affected employees. Accordingly, Provision 3 would help to ensure that employees' evaluations were based on employees' actual performance. In this regard, the provision would benefit employees and the Agency. See id.

The benefits to employees would be obtained by significant restrictions on the Agency's rights to direct employees and assign work, however. Provision 3 would apply to delays in case processing that were either "caused by" or "related to" the move. This standard is quite broad and could require significant and extensive adjustments to existing performance expectations. Indeed, the Union acknowledges that Provision 3 "overlaps" with and goes "further than" Provisions 1 and 2. Accordingly, noting our conclusions regarding Provisions 1 and 2, we conclude that Provision 3 excessively interferes with the Agency's rights to direct employees and assign work and is nonnegotiable.

V. Order

The petition for review is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency withdrew its disapproval of a fourth provision. Consequently, we will not address that provision further in this decision.

2. The Agency made no arguments concerning the negotiability of the underscored portions of Provisions 1 and 2. Therefore, those portions will not be addressed further in this decision.

3.