46:1590(147)NG - - AFGE Local 3509 and HHS, SSA, Greenwood, SC District - - 1993 FLRAdec NG - - v46 p1590

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46 FLRA No. 147

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3509

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

GREENWOOD, SOUTH CAROLINA DISTRICT

(Agency)

0-NG-2041

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 26, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of eight proposals relating to the establishment of a Reviewer function in the Agency's Greenwood, South Carolina District. For the reasons that follow we conclude that Proposal 4, which prescribes the manner in which all qualified Claims Representatives would be rotated through the Reviewer Position, is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Proposal 5, which specifies the qualifications for eligibility for rotation into the Reviewer Position, is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The disputed portion of Proposal 7 and all of Proposal 14, which address the organizational locus of the Reviewer Position, are nonnegotiable because they excessively interfere with the Agency's right to determine its organization under section 7106(a)(1) of the Statute. The portion of Proposal 12 that requires that documentation collected for performance purposes be related to an applicable Generic Job Task is nonnegotiable because it directly interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute and the record does not permit a determination of whether it constitutes an appropriate arrangement within the meaning of the Statute. The record does not provide a sufficient basis for a conclusion as to the negotiability of the remaining portion of Proposal 12, which requires such documentation to adhere to an existing Memorandum of Understanding between the parties. Consequently, we dismiss the petition insofar as it concerns the latter portion of Proposal 12.

Proposal 13, which would limit the types of reviews that the Agency may assign to the Reviewer Position, directly interferes with the right to assign work under section 7106(a)(2)(B) of the Statute. The record does not establish that it constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. Accordingly, we conclude that Proposal 13 is nonnegotiable.

Proposal 23 merely constitutes a restatement of the Agency's policy regarding the performance of analyses and completion of statistical reports by the Reviewer, which is placed in the agreement for informational purposes, and does not prevent the Agency from changing that policy during the life of the agreement. Therefore, it is negotiable. Proposal 26, which addresses the rotation of interviewing assignments, directly interferes with the right to assign work under section 7106(a)(2)(B) and the record does not establish that it constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. Consequently, it is nonnegotiable.

II. Procedural Issue

The Union contends that the Agency's allegation of nonnegotiability is deficient because it fails to specify any basis on which the proposals are nonnegotiable, which the Union asserts is required under section 2424.1(a) of the Authority's regulations. The Union requests that the Authority dismiss the negotiability appeal with prejudice to the Agency's ability to allege nonnegotiability with respect to the disputed proposals.

There is no requirement in the Statute or the Authority's implementing regulations that a declaration of nonnegotiability must be made with any particular degree of specificity. See, for example, National Association of Government Employees and U.S. Department of Defense, National Guard Bureau, Connecticut Army and Air National Guard, Hartford, Connecticut, 40 FLRA 33, 36-37 (1991); Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537 (1985), aff'd sub nom. FLRA v. National Association of Government Employees, Local R4-68, 802 F.2d 1484 (4th Cir. 1986). The point at which an agency must support its allegation of nonnegotiability with specificity and rationale comes after the agency has been served with a petition for review, at which time the agency has 30 days within which to file a statement of position specifying its reasons supporting the allegation. See section 2424.6 of the Authority's Rules and Regulations. Therefore, we deny the Union's request that we dismiss the negotiability appeal because the Agency's declaration of nonnegotiability fails to state the specific bases for the allegations.

III. Background

The proposals that are at issue in this case arose during negotiations that resulted from the Agency's announcement of its intention to establish a "Reviewer Position" in its Greenwood, South Carolina District. That District is comprised of a District Office, which is located in Greenwood, South Carolina, and two subordinate Branch Offices, which are located in Laurens and Aiken, South Carolina. The District Manager is responsible for administrative and program management for the entire District. According to the Union, the District Office has a complement of seven Claims Representatives; the Laurens Branch Office has five Claims Representatives and is in the process of hiring a sixth, and the Aiken Branch Office has seven Claims Representatives. According to the Agency, in January 1992 it notified the Union that it intended to establish the Reviewer Position in the District Office in conjunction with the reassignment of one Claims Representative from the Laurens Branch Office to the District Office. This employee apparently was the seventh Claims Representative assigned to the District Office.

In announcing the establishment of the Reviewer Position, the Agency stated that the duties of the position included reviewing various work products generated by Claims Representatives and Claims Representative Trainees in the District and filling in for other Claims Representatives. The Agency stated that its intent was to fill the Reviewer Position by rotating all eligible Claim Representatives in the District Office through the position for a period of no more than 90 days. The Agency stated that those eligible for the Reviewer Position were journeyman Claims Representatives who had completed all applicable training and who had a summary rating of Excellent or above. Under the Agency's plan, when a Claims Representative finishes his or her term in the Reviewer Position he or she will assume the workload of the Claims Representative who replaces him or her in the Reviewer Position.

The Union asserts that, as a general matter, the Agency's decision to rotate the Claims Representatives through the Reviewer Position will adversely affect bargaining unit employees in several respects. First, the Union contends that Claims Representatives who are serving in the Reviewer Position "will be held accountable for the permanently-assigned alphabetical range of benefit claims" but will be unable to work on those claims while in the Reviewer Position. Response at 8. The Union argues that the resulting lack of continuity will increase the complexity and stress of the Claims Representatives' work and will affect the nature of the work required of them upon return from rotation into the Reviewer Position. Second, the Union asserts that the routing of claims to the Reviewer will result in the material being unavailable to the Claims Representative who is responsible for processing the claim. The Union states that where the Reviewer Position is located in a different office than that responsible for processing a claim, the amount of time that the material is unavailable will increase because of the additional time required for mailing. Third, the Union asserts that the creation of the Reviewer Position will result in the same total number of Claims Representatives performing more work. Fourth, the Union avers that the Agency's acknowledgement that further modifications may be required in implementing the Reviewer Position indicates that further adjustments are likely, with the potential for adverse effects on employees. Fifth, the Union asserts that the Reviewer Position will result in disparate performance requirements among employees assigned to the same position because certain Claims Representatives will not be subject to rotation into the Reviewer Position. Sixth, the Union contends that the Reviewer Position will lower morale because it will "increase uncertainty and increase the amount of work [Claims Representatives] already perform . . . ." Id. at 9.

IV. Proposals 4 and 5

[Proposal 4]

Employees will be rotated through the Field Office Reviewer position in the following manner:

All qualified CRs [Claims Representatives] in the District will normally be rotated into the Reviewer position for 120 days. Normally an employee will not be re-detailed into the Reviewer Position until after all other qualified employees have been detailed into the position. Initial rotation will be set up as follows:

a. Volunteers, in order of earliest EOD [entry on duty] date into the Journeyman CR position.

b. Non-Volunteers in order of latest EOD date into the Journeyman CR position.

                                                                        [Proposal 5]

Management has set the qualifications for assignment to the Reviewer position as follows:

a. Journeyman CR

b. Summary Rating on the employee's Appraisal of Record must be Fully Successful or above.

c. Employee must have completed all training which management has determined to be necessary. Normally, an employee who has not completed the formal CRT [Claims Representative Trainee] training class will not be assigned to the Reviewer position.

A. Positions of the Parties

1. The Agency

The Agency asserts that Proposal 4 would require it to rotate all Claims Representatives who have performance ratings of Fully Satisfactory or better within the three locations in the District into the Reviewer Position for a period of 120 days. The Agency contends that Proposal 4 interferes with its rights to determine its organization and to assign work under section 7106(a)(1) and (2) of the Statute.

The Agency describes management's right to determine organization as encompassing the determination of an agency's administrative and functional structure. The Agency asserts that its decision that the review function entailed in the Reviewer Position would be performed in the District Office represents an exercise of this management right. The Agency contends that Proposal 4, in conjunction with Proposals 5 and 14, requires that the function be performed in all three offices within the District and, therefore, interferes with the Agency's right to determine its organization.

The Agency describes management's right to assign work as including the right to determine what work will be done; how it will be done; by which employees it will be done; and the quantity, quality, and timeliness of work required of an employee. The Agency asserts that Proposal 4 interferes with the right to determine which employees will perform the Reviewer function by requiring the Agency to use all Claims Representatives throughout the District in the Reviewer Position. The Agency contends that Proposal 4 "improperly affects" the timing of work assignments to employees by prescribing the selection of employees to perform work without allowing for consideration of those employees' availability to perform such work and not providing the Agency with necessary options in the event that a scheduled employee is involved in other assignments. Statement of Position at 7.

The Agency argues that insofar as Proposal 4 prohibits redetailing an employee to the Reviewer Position before all employees have taken their turn, it is similar to the proposal that the Authority concluded excessively interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute in American Federation of Government Employees, National Council of Field Labor Locals, Local 644 and U.S. Department of Labor, Office of the Assistant Secretary, Philadelphia, Pennsylvania, 37 FLRA 828 (1990) (Dept. of Labor, Philadelphia). The Agency asserts that Proposal 4 is nonnegotiable for the same reason as the proposal in Dept. of Labor, Philadelphia. The Agency contends that the use of the term "normally" does not cure the defects in this proposal.

The Agency contends that Proposal 5 is nonnegotiable because it interferes with management's right to assign work, which the Agency contends encompasses the right to establish the qualifications necessary to perform tasks. Noting the Union's assertion that Proposal 5 is a reflection of the qualifications that the Agency has established, the Agency contends that the qualifications that are listed in this proposal, in fact, are inconsistent with those established by the Agency. Specifically, the Agency states that this proposal alters the level of performance rating required for eligibility and permits exceptions to the requirements that the Agency has imposed by permitting Claims Representative Trainees to qualify for the rotation.

2. The Union

The Union describes Proposal 4 as providing that the Reviewer Position will be filled through detailing qualified volunteers and, then, non-volunteer journeyman Claims Representatives. The Union states that it is the intent of Proposal 4 that the Agency "will continue to determine the qualifications requirements for employees in all positions and work; in this case, that means the Reviewer function's qualifications will continue to be as described to AFGE during the negotiations, namely, they will be the same as the qualifications of the journey-level Claims Representative position." Response at 22. The Union states that if the Agency determines that different qualifications should be established, the Agency would be required to notify the Union and discharge its statutory bargaining obligations.

In response to the Agency's arguments, the Union asserts that Proposal 4 does not require that the rotation include all Claims Representatives, but rather requires the inclusion of all qualified Claims Representatives, that is, those who meet the established criteria. The Union states, "[i]nasmuch as the criteria are directly disputed in Proposal No. 5, the portion of Proposal No. 4 which involves the minimum performance rating as a qualification for the Reviewer function will depend on the negotiability of Proposal No. 5." Id. at 23-24.

The Union denies that Proposal 4 would prevent the Agency from adjusting assignments based on workload necessities. The Union asserts that Proposal 4 is intended to address only one specific aspect of rotation, namely, the procedures for filling planned, recognized details, and that the Agency retains the ability "to divert resources to match workload necessities." Id. at 24.

The Union also denies the Agency's claim that Proposal 4 would prevent the Agency from taking employee availability into account as a consequence of the requirement that no employee be redetailed into the Reviewer Position until after all other qualified employees have been detailed into the position. In this regard, the Union contends that the presence of the term "normally" in Proposal 4 serves to afford flexibility in "abnormal situations" where an exception to the normal order of rotation is necessary. Id. at 24-25. The Union asserts that the term does not impose substantive requirements on management's rights "because the Reviewer function, as explained by the Agency, includes rotation among the individuals who are in the relevant set of [Claims Representatives]." Id. at 25.

In response to the Agency's assertion that Proposal 4 interferes with its right to determine its organization, the Union contends that the establishment of the Reviewer Position does not entail a change in the Agency's organizational structure. The Union argues that Proposal 4 "only affects the geographical location at which the Reviewer function will be performed." Id. at 26.

As to Proposal 5, the Union contends that it had understood from the Agency's allegation of nonnegotiability that the only portion of that proposal in dispute is that which establishes Fully Successful as the level of performance rating required as a qualification for assignment to the work of the Reviewer Position. However, although the Union challenges the propriety of the Agency's modification of its original allegation to include subsection c, it has submitted arguments that encompass that subsection.

The Union states that Proposal 5 means that all journeyman Claims Representatives in the District who have completed training and whose summary rating is at least Fully Successful will be qualified to perform the Reviewer function.⁽¹⁾ The Union contends that Proposal 5 does not prevent the Agency from establishing different qualifications for the Reviewer Position as long as the Agency discharges "its bargaining obligation." Response at 28. The Union argues that the use of the term "normally" in subsection c does not impose a substantive limitation on management's right to determine the qualifications that will apply to the Reviewer Position. According to the Union, the inclusion of that term permits the Agency to expand or contract the pool of Claims Representatives who are eligible for rotation to the Reviewer Position. The Union contends that the term affords the Agency the option of determining whether it will, in fact, assign employees who do not meet the training requirement to the Reviewer Position.

Insofar as Proposal 5 concerns the performance rating necessary for an employee to qualify for the Reviewer Position, the Union argues that the Agency has already exercised its right to determine the qualifications required to perform the Reviewer function by its determination that the function is entirely contained within the position and position description of the generalist Claims Representative. The Union asserts that this proposal "merely recounts what the employer has determined." Id. at 29. The Union states, "where the employer has unequivocally subsumed in its entirety the Reviewer function within the generalist [Claims Representative] position, the employer has established equivalent performance qualifications, which until and unless they are modified, remain unaffected by Proposal No. 5." Id. at 29-30 (emphasis in original).

B. Analysis and Conclusions

The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties and work that will be assigned and the particular employees or positions to which the duties and work will be assigned. For example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd 691 F.2d 553 (D.C. Cir. 1982) (Public Debt). This right encompasses the right to assign general continuing duties, to make periodic work assignments to employees, to determine when such assignments will occur, and to determine when the work that has been assigned will be performed. For example, id. This right includes the right to determine the particular qualifications and skills needed to perform the work and to make a judgment as to whether a particular employee meets those qualifications. For example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 519-20 (1990) (VA, Newington).

Proposal 4 establishes the manner in which "qualified" employees will be rotated through the Reviewer Position and Proposal 5 defines a qualified employee. Proposals that provide a procedure for selecting the particular employee who will perform particular tasks from a group of employees whom management has determined are qualified do not interfere with management's right to assign work. For example, id. at 519. Similarly, the Authority has concluded that proposals that constitute procedures for allocating and distributing the same type of work among employees whom management has determined are equally qualified are negotiable. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA 1309 (1991) (the Authority concluded that Proposal 12, which provided that employees would be rotated to do call backs on a daily basis, and Proposal 13, which provided that rotation would initially be established by a fixed roster based on seniority, were negotiable). The Authority has also found negotiable proposals that address only how long an employee will remain in any particular rotational assignment in circumstances where a pool of employees whom management has determined qualified are being rotated through various duties that the Agency has already assigned to those employees. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 785-88 (1990). Of course, proposals for selecting the particular employee to perform a particular work assignment must not foreclose an agency from taking into consideration the unavailability of an employee because of that employee's involvement in another assignment if they are to avoid conflict with management's rights. See National Treasury Employees Union v. FLRA, 810 F.2d 1224 (D.C. Cir. 1987).

In all of the cases that concern the establishment of procedures for making work assignments within a group of employees, one basic requirement is clear if such proposals are to avoid conflict with management's right to assign work: the proposal must preserve management's discretion to determine both the qualifications and skills needed to do the work involved and the employees who meet those qualifications. These proposals do not.

In announcing its intentions to establish the Reviewer Position, the Agency stated that an employee must be a journeyman Claims Representative, have completed all applicable training, and have a summary rating of Excellent or above in order to qualify for rotation into that position. Proposal 4 establishes as the pool of employees from which the rotation into the Reviewer Position will be drawn all "qualified" Claims Representatives. However, notwithstanding the Union's claims that this proposal adheres to the qualifications that the Agency had determined for the Reviewer Position, the Union's collective statements explaining this proposal show an intent to alter the qualifications that the Agency has announced for that position. In this regard, in explaining Proposal 4, the Union asserts that the proposal does not require the rotation to include all Claims Representatives but only all "qualified" Claims Representatives; "i.e., who meet the established criteria." Response at 23. The Union notes that the "criteria are directly disputed in Proposal No. 5." Id. Thus, while the Union indicates that the proposal adopts the Agency's requirement that Claims Representatives be journeymen to qualify for rotation into the Reviewer Position, the Union also acknowledges that Proposal 5 is inconsistent with the minimum performance rating established by the Agency as a qualification. In this regard, subsection b of Proposal 5 alters the level of performance rating that the Agency has established as a qualification for eligibility for the rotation. In view of the fact that, based on subsection b, Proposal 5 alters the qualifications requirements established by the Agency, it is unnecessary to address the Agency's claim that subsection c of that proposal creates an additional modification.⁽²⁾

We find that Proposals 4 and 5, which are interdependent, impose qualifications for eligibility for rotation into the Reviewer Position that are different than those that the Agency has announced will apply. As discussed earlier, management's right to assign work includes the right to determine the particular qualifications and skills needed to perform work. Therefore, Proposals 4 and 5 directly interfere with that right.

In view of the fact that Proposals 4 and 5 would alter the qualifications that the Agency has established at the inception for the Reviewer Position, we reject the Union's argument that the proposal is negotiable because the Agency retains the ability subsequently to change the qualifications required for the position. Proposals that infringe on an agency's discretion to determine how it will exercise its management rights directly interfere with those rights. The fact that such infringement may be only temporary does not warrant a different conclusion.

For the foregoing reasons, we conclude that Proposals 4 and 5 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. In view of this conclusion it is unnecessary to address the parties' other arguments as to that particular management right as they would not change the conclusion that these two proposals directly interfere with management's right to assign work. Also, we do not address each sentence of Proposal 4 individually because, as each sentence seeks to regulate the rotation of "qualified" CRs, our conclusion that the establishment of qualifications for the Reviewer Position is nonnegotiable requires a finding that Proposal 4 in its entirety is nonnegotiable.

The Authority established an analytical framework for determining whether proposals that directly interfere with management's rights are nevertheless negotiable because they constitute appropriate arrangements under section 7106(b)(3) of the Statute in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under the framework established, we initially determine whether the proposal constitutes an arrangement. To do this, we ascertain whether the proposal in question seeks to address or compensate for the adverse effects on employees produced by the exercise of management rights. See KANG, 21 FLRA at 31. If the proposal satisfies the first part of this analysis, we then determine whether the proposed arrangement is appropriate. Under this second part, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees such that the proposal excessively interferes with management's rights. See id. at 33.

For purposes of this decision, we will assume without deciding that Proposals 4 and 5 constitute an arrangement within the meaning of section 7106(b)(3) of the Statute. We conclude, however, that this proposed arrangement is not appropriate because it excessively interferes with management's right to assign work.

The Union has identified the effects experienced by employees who are rotated into the Reviewer Position as the interruption of normal work assignments and the subjection of employees to disparate performance requirements. However, elsewhere in its arguments the Union acknowledges that rotation into the Reviewer Position also offers some benefits to employees in terms of potential advantages for promotion, above-average performance ratings and awards. Thus, rotation into the Reviewer Position affords advantages as well as disadvantages to employees chosen for the assignment and, conversely, has a similar effect on employees who are denied the opportunity for the assignment. The qualifications established by the Agency would limit the pool of employees who are eligible for the rotation; however, Proposals 4 and 5 alter those qualifications and effectively expand the pool of eligible employees. Thus, Proposals 4 and 5 benefit employees by spreading the advantages and disadvantages flowing from rotation into the Reviewer Position across a broader range of employees.

Proposals 4 and 5 affect management's right to assign work because they alter the qualifications that the Agency has determined should apply to the Reviewer Position by substituting less stringent requirements for eligibility for the rotation than those that the Agency has established. In particular, Proposals 4 and 5 override the Agency's determination that the assignment of the work entailed by the Reviewer Position should be limited to those employees who have demonstrated superior performance. In other words, the proposals would prevent the Agency from limiting the assignment to its more highly qualified employees. We find that this places a significant limitation on management's ability to determine the qualifications necessary to perform the work involved in the Reviewer Position. Furthermore, lowering the level of performance required for eligibility for the position could reasonably have a similar effect on the quality of performance in the Review function. That is, employees who have demonstrated superior performance and mastery of the knowledges, skills, and abilities necessary to produce work products are more likely to have the capability to review the work products of other employees in a more effective and efficient manner than those who have demonstrated only average performance. In view of the fact that the review function is integrally related to the Agency's efforts to control quality, it follows that the proposals could have a detrimental effect on the Agency's ability to conduct its operations effectively and efficiently.

In our view, the burden placed on management's exercise of its right to assign work outweighs the benefit to employees. Therefore, we find that Proposals 4 and 5 do not constitute an appropriate arrangement because they excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute, and are, therefore, nonnegotiable.

In view of our conclusion that these proposals excessively interfere with management's right to assign work, we do not address the Agency's contention that Proposal 4 also interferes with the right to determine the organization of the Agency.

V. Proposals 7 and 14

[Proposal 7]

Management's intention is that workloads of CRs rotating through the Reviewer Function will be handled as follows:

a. The alphabetical breakdown of workload assignments will be divided equitably among all CRs.

b. The CR rotating out of the Reviewer Position will assume the workload, including the alphabetical assignment, of the CR rotating into the Reviewer Position, after any necessary adjustments have been made to maintain an equitable division of work, [provided both employees involved work in the same office. If the two employees involved work in different offices, then the workload in both offices will be reassigned in such a way as to maintain an equitable division of work.]

[Proposal 14]

Cases to be reviewed will be mailed on a weekly basis to the office where the FO [Field Office] Reviewer is stationed. The FO Reviewer will not be required to change duty stations.

A. Positions of the Parties

1. The Agency

The Agency contends that the bracketed portion of Proposal 7 and the entire text of Proposal 14 interfere with management's right to determine the organization of the Agency by requiring that the functions of the Reviewer Position be performed in all three offices in the District rather than be confined to the District Office. The Agency contends that Proposal 14 also restricts the timing of reviews by requiring weekly mailings of cases to the Reviewer and, consequently, that it interferes with management's right to assign work. The Agency asserts that Proposal 14 also affects the number of employees who would be assigned to an office within the District and that it concerns a permissive subject of bargaining under section 7106(b)(1) of the Statute about which the Agency has elected not to bargain.

The Agency contends that Proposal 14 would have a significant effect on management's flexibility to conduct more frequent reviews or on-site reviews. The Agency contends that it needs the Review function assigned to the District Office where the District Manager and other key staff are stationed to facilitate management of the reviews and use of the results to correct problems with its service.

2. The Union

The Union describes Proposals 7 and 14 as concerning the location at which the Reviewer function will be performed. The Union expresses uncertainty as to whether the Agency has declared all of Proposal 7 nonnegotiable or only the portion that concerns the location of the Reviewer Position. If the latter is the case, the Union asserts that the portions of Proposal 7 that address the equitable assignment of work do not interfere with management's right to assign work.

The Union contends that the placement of the Reviewer function in the three offices within the District does not directly interfere with the Agency's right to assign work and direct employees.⁽³⁾ In this regard, the Union argues that the location at which the review function is performed does not affect the Agency's ability to conduct reviews of employees' work or to direct the Reviewer function. The Union asserts that the qualifications established for eligibility for the Reviewer Position are not unique to Claims Representatives in the District Office. The Union contends that insofar as Proposal 14 concerns the weekly mailing of material for review, it is consistent with the Agency's announced intentions regarding the review schedule and does not prohibit any subsequent change in that schedule "subject to exhaustion of any applicable obligation to bargain." Response at 34.

The Union contends that Proposals 7 and 14 constitute appropriate arrangements because they "ameliorate the additional workload . . . by spreading the hardship of the additional workload among more individuals." Id. The Union argues, conversely, that the proposals also afford a broader distribution of the benefits that flow from performance in the Reviewer Position, specifically, the opportunity for experience that may provide an advantage insofar as promotions and awards are concerned.

B. Analysis and Conclusions

Initially, we note that in its Statement of Position the Agency disputes only the bracketed portion of Proposal 7. Consequently, our decision is limited to that portion of that proposal. For the reasons that follow, we conclude that the disputed portion of Proposal 7 and Proposal 14 in its entirety directly interfere with management's right to determine its organization.

The right of an agency under section 7106(a)(1) to determine its organization refers to the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 409 (1990) (IRS). This right encompasses the determination of how an agency will structure itself to accomplish its mission and functions. Id. This determination includes such matters as the geographic locations in which an agency will provide services or otherwise conduct its operations, how various responsibilities will be distributed among the agency's organizational subdivisions, how an agency's organizational grade-level structure will be designed, and how the agency will be divided into organizational entities such as sections. Id. at 409-10. Under section 7106(a)(1) an agency also has a right to determine where official duty stations of organizational units and positions in those units shall be established and maintained. See National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, Jacksonville, District, 32 FLRA 886, 888 (1988) (IRS, Jacksonville).

In this case the Agency has determined that the Reviewer Position needs to be placed in the District Office where the District Manager and other key staff are located. This determination constitutes a decision as to which organizational subdivision the Reviewer Position will be assigned and the official duty station of that position. See IRS, Jacksonville; Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292 (1987), Decision on Reconsideration, 31 FLRA 824 (1988) (Proposals 1 and 5).

Based on the Union's statement, we find that the disputed portion of Proposal 7 and Proposal 14, as a whole, are intended to require the assignment of the Reviewer Position to the three offices in the District, rather than confining it to the District Office as the Agency desires. In view of this intent, which is consistent with the language of the proposals, and based on the foregoing, we find that the disputed portion of Proposal 7 and Proposal 14 directly interfere with management's right to determine its organization. We note that the circumstances present here are distinguishable from cases where an agency had determined that the work of employee positions could be performed at more than one location and the only issue was the location at which a particular employee would work. American Federation of Government Employees, Local 898 and U.S. Department of Labor, Occupational Safety and Health Administration, Denver, Colorado, 39 FLRA 1441, 1443-44 (1991); National Treasury Employees Union and U.S. Customs Service, Northeast Region, 25 FLRA 731, 733-35 (1987). Here, the Agency has not determined that the work of the Reviewer Position can be performed at all three locations.

Because, as we discuss next, this proposal excessively interferes with management's right to determine the organization of the Agency, we do not address the arguments of the parties concerning other management rights.

As with Proposals 4 and 5, we will assume, without deciding, for purposes of this decision that these proposals constitute arrangements within the meaning of section 7106(b)(3) of the Statute.

Insofar as bargaining unit employees are concerned, the effect of management's decision to limit the Reviewer Position to the District Office is to confine the advantages and disadvantages that flow from rotation into that position to the employees of that office rather than to permit employees in the other offices that constitute the District to share those advantages and disadvantages. With regard to the effect on management's ability to exercise its management rights, this proposal would interfere with the Agency's right to determine its organization by nullifying its decision to place the Reviewer Position in the District Office and requiring it to locate the position at times in other offices in the District. The Agency contends that co-locating the Reviewer Position with the District Manager and other key staff allows the most effective and efficient means of managing and using the Reviewer Position. Thus, the proposal would require the Agency to forego the functional structure that it has deemed best promotes efficient and effective operations. We find that the proposals would have a significant negative impact on management's right to determine its organization. In contrast, the benefits afforded employees are less consequential. That is, according to the Union, assignment to the tasks involved in the Reviewer Position brings both advantages and disadvantages to the employee assigned. It follows that ineligibility for the assignment deprives employees of the potential for certain advantages but it also spares them from any disadvantages. While the proposals would spread both the advantages and disadvantages among a larger pool of employees, it does not bestow an unqualified benefit on any of the employees involved.

We find that, on balance, the burden that these two proposals place on the Agency's right to determine its organization is disproportionate to the benefits that the proposals afford employees. Consequently, we conclude that Proposals 7 and 14 excessively interfere with management's right to determine the organization of the Agency and are not negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.

V. Proposal 12

If documentation is collected for performance purposes, it will be related to the applicable GJT [Generic Job Task] in the employee's performance plan and will adhere to the Atlanta Regional Employee Assessment MOU.

A. Positions of the Parties

1. The Agency

The Agency contends that this proposal interferes with management's rights to assign work and direct employees because it restricts the documentation that can be collected for performance appraisal purposes. The Agency maintains that, under this proposal, any such documentation must relate to the specific elements in the employee's performance plan and adhere to the Employee Assessment Memorandum of Understanding (MOU). The Agency asserts that by requiring adherence to the Employee Assessment MOU, the Union "may mean that the scope of documentation is limited to the three types of reviews covered in the assessment MOU; namely, work item reviews, interview audits, and desk audits." Statement of Position at 10. The Agency further states that "[o]ne meaning of this restriction is clear to the negotiators. The [U]nion has expressly stated that it seeks to exclude any documentation on performance that might be gathered under the 'Dodge Plan.'" Id. According to the Agency, under the Dodge Plan, "work is sampled and as errors are detected, a broader review is made of the employee's work." Id.

2. The Union

The Union states that the reference to "performance purposes" in this proposal means performance appraisal and rating purposes. According to the Union, the Atlanta Regional Employee Assessment MOU is a collective bargaining agreement in effect between the parties in the Atlanta Region, which includes the Greenwood, South Carolina District.

The Union contends that under Proposal 12, the Agency can collect and use information that is "otherwise available to it under law, regulation, and other negotiated agreements." Response at 36. The Union contends that under 5 C.F.R. Part 430, a Government-wide regulation, the Agency is required to relate employee performance to the Generic Job Tasks (GJTs) that comprise the performance plan of each employee. Thus, the Union argues that Proposal 12 merely requires the Agency to comply with 5 C.F.R. Part 430 and, thus, simply restates an "extrinsic requirement which is imposed on the employer." Id. at 37. Citing National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566 (1988), reversed as to other matters, 895 F.2d 152 (4th Cir. 1990) (Nuclear Regulatory Commission), the Union asserts that proposals that paraphrase regulations are negotiable if the intent of the language in the proposal is the same as the regulation. Thus, the Union contends that the portion of Proposal 12 requiring that any documentation collected under the Reviewer function for purposes of appraising and rating employees be related to the established GJTs is within the duty to bargain.

The Union contends that the Employee Assessment MOU applies to the Atlanta Region, which includes the Greenwood District, and, by its terms, requires that "review practices" in the Region be conducted in accordance with the procedures negotiated in the MOU. Id. at 38. According to the Union, the MOU provides that "work items to be reviewed will directly relate to the GJTs as described in the individual employee performance plans." Id. The Union asserts that although the reviews contemplated by the institution of the Reviewer function post-date the review practices that were in effect when the MOU was effected, it would be anomalous and inconsistent if some review practices, but not others, incorporate the "relate to the GJTs" requirement. Id.

The Union argues that resolution of the issue of whether the documentation addressed in Proposal 12 "must, or need not, comply" with the MOU is a matter of contract interpretation and does not "implicate a cognizable basis to determine whether Proposal No. 12 is outside the obligation to bargain." Id. The Union contends that in order for the Agency to support its claim that Proposal 12 is nonnegotiable because it requires adherence to the MOU, the Agency must demonstrate that relevant provisions of the MOU are illegal. The Union asserts that the Agency has failed to make such a demonstration.

The Union also asserts that it is clear from the language of Proposal 12 that it does not limit the kinds of reviews that can be done, as the Agency claims.

B. Analysis and Conclusions

Proposals that limit the data that agencies can use in performance appraisals directly interfere with management's rights to direct employees and assign work. See, for example, Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032, 1034-35 (D.C. Cir. 1989); American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675, 679 (1990). See also Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 798-800 (1991) (Patent and Trademark Office) (proposals that limit management's ability to gather information necessary to make determinations reserved to it interfere with the right to make those determinations). Additionally, a proposal that directly interferes with management's determinations on how it samples the performance of its employees in preparing performance appraisals directly interferes with management's rights to direct employees and assign work. See, for example, Patent and Trademark Office, 39 FLRA at 817-18; American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244,  247-48 (1990).

This proposal places substantive limitations on the documentation that the Agency may collect for performance purposes in that the documentation must be related to the applicable GJTs in the employee's performance plan. Thus, the proposal directly interferes with management's rights to direct employees and assign work.

The Union contends that this limitation reflects limitations that already exist in Government-wide regulations, specifically, 5 C.F.R. Part 430. We find nothing in this particular regulation that addresses the documentation that an agency can collect for performance appraisal and rating purposes. Therefore, we reject the Union's claim that this proposal simply restates an "extrinsic requirement which is imposed on the employer." Reply at 37. However, even assuming that the proposal merely paraphrases a Government-wide regulation, it would not necessarily be negotiable.

Proposals that paraphrase or set forth the terms of a Government-wide regulation are distinguishable from proposals that merely require an agency to comply with existing Government-wide regulations. The former impose an independent, contractual requirement on the agency while the latter do not. Under the former type of proposal, an agency would be required to honor the terms of the agreement for the life of the agreement regardless of any change in the Government-wide regulation. See 5 U.S.C. § 7116(a)(7) (generally, an agency may not enforce rules or regulations that are in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed). The latter type of proposal merely requires compliance with existing Government-wide regulations and does not prevent the agency from enforcing any changes that occur in a regulation during the life of the contract.

Insofar as these two types of proposals address the exercise of management's rights, the latter type of proposal, which merely requires an agency to comply with Government-wide regulations in exercising its management rights, does not directly interfere with those rights in circumstances where the particular regulation has the force and effect of law. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Public Debt, 42 FLRA 1333 (1991), petition for review filed, No. 91-1633 (D.C. Cir. Dec. 20, 1991). By contrast, the former type of proposal, which paraphrases a Government-wide regulation, directly interferes with management's rights if it imposes substantive limitations on the agency's discretion to exercise those rights. See, for example, 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, 474 (1990), remanded as to other matters without decision, No. 91-1045 (D.C. Cir. 1991).

By requiring that documentation be related to the GJTs in an employee's performance plan, Proposal 12 imposes restrictions on the documentation that may be collected for performance purposes and, consequently, directly interferes with management's rights to direct employees and assign work. The Union's claim that this proposal merely paraphrases requirements imposed by 5 C.F.R. Part 430 does not negate the fact that, by specifying those requirements in the contract, the proposal establishes an independent, contractual limitation on the Agency's discretion to exercise its management rights. The circumstances here are distinguishable from those involved in Nuclear Regulatory Commission, on which the Union relies. In that case, Proposal 38.4, which paraphrased a Government-wide regulation, did not specify requirements that directly interfered with the agency's management rights under the Statute; it merely specified a procedure within the meaning of section 7106(a)(2) of the Statute and was, therefore, negotiable.

Now we turn to the portion of Proposal 12 requiring that documentation collected for performance purposes will adhere to the Employee Assessment MOU. The Agency asserts that the Union "may mean" by this language that such documentation must be restricted to that collected through the types of reviews that are addressed by the MOU. Statement of Position at 10. In this regard, the Agency asserts that during negotiations the Union expressed the intention of excluding any documentation gathered under the "Dodge Plan." While the Union has submitted a copy of the Employee Assessment MOU, it provides no explanation as to how "adherence" to this MOU would operate in the context of the establishment of the Reviewer Position or affect the Agency's ability to collect documentation in the context of that position. While the Union asserts that it is "clear from the language" of Proposal 12 that it does not limit the kinds of reviews that can be done, it does not expressly rebut the Agency's claims concerning the Union's desire to exclude documentation that is gathered under the Dodge Plan. Response at 39. Moreover, documents submitted by the Union into the record indicate that the Agency's use of the Dodge Plan under that MOU has been controversial and that it is questionable whether under the MOU the Dodge Plan can be used as a sampling method. See Petition, Attachment 5 (grievance alleging violation of the MOU and ensuing settlement agreement).

Based on the information submitted, we are unable to determine how the portion of Proposal 12 requiring documentation to be collected in adherence to the Employee Assessment MOU would operate. Thus, the record is not adequate for us to make a determination regarding the negotiability of this portion of Proposal 12. The parties bear the burden of creating a record on which a negotiability determination can be made. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet this burden acts at its peril. See, for example, National Federation of Federal Employees, Local 1430 and U.S. Department of the Navy, Naval Facilities Engineering Command, Northern Division, Philadelphia, Pennsylvania, 39 FLRA 581, 584 (1991). Accordingly, we will dismiss the petition for review as to this portion of Proposal 12.

The Union has claimed generally that all of the proposals in this appeal constitute appropriate arrangements under section 7106(b)(3) of the Statute. Consequently, we now address whether the portion of Proposal 12 requiring that documentation collected for performance purposes be related to an applicable GJT is negotiable as an appropriate arrangement notwithstanding the fact that it directly interferes with management's rights to direct employees and assign work.

As we discussed earlier, the analytical framework that we apply in determining whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute is that which is set forth in KANG, 21 FLRA at 31-35.

This proposal would limit the documentation that can be collected for performance appraisal and rating purposes to that which is related to the applicable GJT in the employee's performance plan. Even if we assume for purposes of this decision that this proposal constitutes an arrangement within the meaning of section 7106(b)(3), we find that the record is not adequate to allow us to weigh the benefits and burdens that would flow from the proposal. The proposal places an absolute prohibition on collecting documentation for performance appraisal and rating purposes that does not relate to an applicable GJT in an employee's performance plan. The proposal does not, for example, condition collection, or subsequent use, on disclosure to the affected employee. Moreover, the prohibition allows for no exceptions based on any legitimate interests the Agency may have in collecting documentation that does not relate to an applicable GJT. However, although it is clear that the proposal would impose a burden on the Agency by restricting its ability to collect documentation for performance appraisal and rating purposes, the extent of that burden is unclear. That is, the Agency does not provide any explanation concerning the practical effect of the restriction on its ability to appraise employee performance.

The record also offers no explanation as to the nature and extent of the benefits that this proposal would afford employees, and the nature and extent of those benefits is not otherwise apparent to us. For example, it is unclear how establishing a general prohibition on the collection of any documentation that is unrelated to employees' performance elements would necessarily benefit those employees. While it is a reasonable assumption that such documentation may in some circumstances be detrimental in nature, the proposed prohibition is general and makes no distinction between documentation that has the potential to benefit employees and that which could work to their detriment. With regard to the former, the Union does not explain how precluding the collection of documentation that is not detrimental in nature would otherwise benefit employees. With regard to the latter, the Union has provided us with no explanation of the extent to which employees are, or reasonably expect to be, harmed by the collection of such data, or the concomitant benefits that would flow from its exclusion from the performance evaluation process. Because we are unable to determine the nature and extent of the benefits and burdens resulting from this proposal, we are unable to weigh the competing practical needs of employees and the Agency. Therefore, we cannot determine whether, even assuming that this proposal constitutes an arrangement, it would be an appropriate one. See, American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285, 1289-91 (1993).

Based on the foregoing, we conclude that the portion of Proposal 12 requiring that documentation that is collected for performance purposes be related to applicable GJTs is nonnegotiable because it directly interferes with management's rights to direct employees and assign work. We dismiss the petition as to the remainder of the proposal because the record does not permit an assessment of its effect on management's rights to direct employees and assign work.

VI. Proposal 13

The only types of reviews to be done by the FO [Field Office] Reviewer will be those negotiated at the Regional level in the TAS [Targeted Assessment System] MOU and the EAS [Employee Assessment System] MOU as amended by the settlement agreement of December 5, 1991.

A. Positions of the Parties

The Agency asserts that this proposal restricts the types of reviews that may be assigned to employees in the Review Position and, consequently, interferes with the right to assign work, which the Agency contends encompasses the rights to determine what work will be done and by which employees. The Agency argues that this proposal interferes with management's right to assign work for the additional reasons that it restricts the Agency's ability to determine the methods by which it will audit employees' work and seeks to preclude use of any data collected under the Dodge Plan in evaluating employees.

The Union states that the Targeted Assessment System is a performance monitoring system that does not assess the work of individual employees. The Union denies that this proposal limits the kinds of reviews that can be done.

B. Analysis and Conclusions

As discussed earlier, management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties and work that will be assigned and the particular employees or positions to which the duties or work will be assigned. For example, Public Debt, 3 FLRA at 775.

Proposals that preclude management from assigning particular functions to particular individuals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1179 (1991), remanded as to other matters, No. 91-1217 (D.C. Cir. Feb. 28, 1992). While the Union denies that this proposal limits the