47:1304(120)NG - - AFGE, National Council of SSA Field Operations Locals and HHS, SSA District Office, Warren, OH - - 1993 FLRAdec NG - - v47 p1304



[ v47 p1304 ]
47:1304(120)NG
The decision of the Authority follows:


47 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF SSA FIELD OPERATIONS

LOCALS (C-220)

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

DISTRICT OFFICE

WARREN, OHIO

(Agency)

0-NG-2117

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

July 22, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one provision of a collective bargaining agreement involving a peer review program that was disapproved by the Agency head under section 7114(c) of the Statute.

For the following reasons, we find that the provision is nonnegotiable under section 7106(a)(2)(A) and (B) of the Statute because it directly interferes with management's rights to direct employees and assign work. We find further that the record lacks sufficient information to determine whether the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute.

II. The Provision

Section C.3. In any office where PEP [Partnership for Excellence Plan] reviewed cases are selected for EAS [Employee Assessment System] review, management will thoroughly explain the selection process to the employees. Management will ensure that only a representative sample of PEP cases are subject to EAS review.

a. If any PEP case is selected for EAS review, any bargaining unit prepared PEP review, excluding TA [Technical Assistant] review, will be removed prior to EAS review.

b. For any errors in dispute, management will provide appropriate manual references if requested.

[Only the underlined portions of the provision are in dispute].

A. Preliminary Matter

Under section 7114(c) of the Statute, the Agency head approved the provision conditioned on an interpretation that "the wording in Item C.3 is illustrative of what management will do and is not intended to restrict management in deciding what aspects of the work will be used in the evaluative process." Petition, Attachment 1.

The Union contends that section 7114(c) makes no provision for conditional approvals or disapprovals. However, the Union states that if the Agency's statement constitutes a disapproval, the Union requests a determination of the negotiability of the provision. The Union proceeds to discuss the "disputed language" on its merits. Petition at 2.

The Authority has determined that conditional language may be used by agencies in responding to a union's proposal. Thus, where it is clear that a provision is being disapproved if interpreted in a particular manner, the Authority will find that a disapproval has been properly made if the union's statement of intent establishes such an interpretation. American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1500 n.2 (1993).

In this case, it is clear that the Agency head has approved the provision if the disputed language is intended to be only "illustrative of what management will do" and has disapproved the provision if it is "intended to restrict management in deciding what aspects of the work will be used in the evaluative process." Petition, Attachment 1. Consequently, if the disputed language of the provision was intended to be other than illustrative, the disapproval was properly made. See American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 616 (1991).

The Union does not indicate whether the provision is intended to operate only as an illustration of what management can do. Rather, the Union states only that [i]f the Agency's conditional approval constitutes a 'disapproval' within the meaning of 5 U.S.C. § 7114(c), then we request a substantive determination of the negotiability of 'Item C.3." Petition at 2. In view of the fact that the Union proceeds to argue the merits of the disputed language, however, it appears that the Union does not accept the disputed language as merely illustrative. As a result, we will not dismiss the petition for review on this basis.

B. Positions of the Parties

1. Agency

The Agency describes the PEP program as "an attempt to allow peer review on an office basis instead of an individual basis." Statement of Position at 5. It continues that the program

allows for a peer review that reviews an office in general, rather than an individual. Any shortcomings in performance would be addressed toward the office as a whole with no one individual being disadvantaged.

Id.

The Agency maintains, however, that although the PEP program addresses performance in the office as a whole, management has the right to follow with further review of individual employees using technical assistant reviews(*) to find the source of office shortcomings. It asserts that the Authority "has previously decided that restrictions of the use of peer review findings is violative of management rights preserved in [section] 7106(a), and excessively interferes with those rights." Id. In support of its position, the Agency cites American Federation of Government Employees, Local 4041 and U.S. Department of Health and Human Services, Social Security Administration, Albuquerque Teleservice Center, Albuquerque, New Mexico, 45 FLRA 3 (1992) (Social Security Administration, Albuquerque).

The Agency contends, with respect to the second disputed sentence, that proposals that otherwise restrict the aspects of employees' performance that can be considered in an evaluation also excessively interfere with management rights. As an example of a case in which the Authority found proposals to be nonnegotiable because they restricted the work that could be sampled for evaluation purposes, the Agency cites Social Security Administration, Northeastern Program Service Center, 18 FLRA 437, 439-40 (1985).

2. Union

According to the Union, the meaning of the disputed language is "that the overall representativeness of the EAS review system, which SSA has not proposed to change, will continue. Accordingly, if the employer elects to use PEP reviewed cases for purposes of EAS review, the PEP cases selected will also be representative of the employee's assigned cases." Petition at 3.

The Union argues that the disputed language does not interfere with any management right under the Statute. The Union asserts that the disputed provision permits the Agency to implement the PEP program, "including the use of work (Social Security claims, in this case) for both programmatic evaluation reasons and individual performance evaluation." Id. at 2. According to the Union, the provision also permits the Agency to continue EAS reviews, which "provide another source of information concerning employee performance." Id.

The Union contends that if the provision is found to interfere with a management right, it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Union maintains that although the purpose of the PEP is "'to enhance the level of service the SSA provides,' it contains adverse effects as to employees who will participate in it." Id. The Union claims that the adverse effects are, in part, "the addition of PEP reviewer work and the use of PEP for performance assessment purposes, including performance evaluations and related personnel actions." Id.

III. Analysis and Conclusions

We conclude that the provision directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is nonnegotiable.

In general, proposals that limit the manner or the method by which management evaluates the performance of employees directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1177 (1991), remanded as to other matters, No. 91-1217 (D.C. Cir. Feb. 28, 1992). For example, proposals that require management to sample employees' work in a particular manner for purposes of performance evaluation directly interfere with management's rights under section 7106(a)(2)(A) and (B). 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 (1990). A proposal precluding management from using certain data for assessing individual performance was found to be nonnegotiable because it precluded the assignment of particular functions to particular individuals under section 7106(a)(2)(B) of the Statute. Social Security Administration, Albuquerque, 45 FLRA at 15. Specifically, as the Agency points out, restrictions on the use of peer review findings interfere with management's right to assign work reserved in section 7106(a)(2)(B). Id.

The Union contends that the provision permits the Agency to implement the PEP program, "including the use of work . . . for . . . individual performance evaluation." Petition at 2. However, the plain language of the provision requires that "only a representative sample of PEP cases are subject to EAS review[,]" and "[i]f any PEP case is selected for EAS review, any bargaining unit prepared PEP review, excluding TA review, will be removed prior to EAS review." On its face, the provision appears to require that, except for TA reviews, no unit-prepared reviews of PEP cases would be used in EAS, or employee performance assessments. Thus, although the Union maintains that the provision permits the Agency to continue EAS reviews, which "provide another source of information concerning employee performance[,]" id. at 2-3, the use of those reviews would be severely restricted under the provision because, except where reviewed by TAs (who appear to be unit employees), PEP reviews by unit employees would be removed before EAS, or performance appraisal, review. We do not base negotiability determinations on a statement of intent that is inconsistent with the plain wording of a proposal. National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705, 709 (1993). See also National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1172 (1993), petition for review filed, No. 93-1201 (D.C. Cir. Mar. 11, 1993).

Therefore, because the provision restricts management's ability to use PEP cases to assess employees' work under the Employee Assessment System, by eliminating the use of at least some employee-prepared case reviews when evaluating employees, it directly interferes with management's rights to direct employees and assign work. Moreover, the provision also would restrict the Agency's use of peer review findings and directly interferes with management's rights on that basis. Social Security Administration, Albuquerque.

Having found that the provision directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, we must determine whether it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Under the framework established in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), we determine whether the proposal is intended as an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the proposal is intended as an arrangement, we determine whether that arrangement is appropriate or whether it excessively interferes with the exercise of management's rights. KANG, 21 FLRA at 31-33. That determination is based on whether the benefits to employees flowing from the proposal outweigh the negative impact on the management right.

The proposal deals with the Partnership for Excellence Plan. The Agency describes the Plan only as allowing for "peer review that reviews an office in general, rather than an individual." Statement of Position at 5. The Union alleges that adverse effects on employees include "the addition of PEP reviewer work and the use of PEP for performance assessment purposes, including performance evaluations and related personnel actions." Petition at 2. We discern no other information in the record that would illustrate either how the proposal is intended to operate as an arrangement to alleviate the adverse affects of management's exercise of its rights, or whether it excessively interferes with management's exercise of those rights.

In the circumstances, the record does not contain information sufficient to determine that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark office, Washington, D.C., 47 FLRA 10, 28 (1993), petition for review filed, No. 93-1255 (D.C. Cir. April 2, 1993). A party failing to meet this burden acts at its peril. American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 490 (1991).

As the record does not provide a basis for determining whether the disputed language constitutes an appropriate arrangement, and as it directly interferes with management's exercise of its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, the proposal is nonnegotiable. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark office, Washington, D.C. Accordingly, the petition for review of the disputed portions of the proposal will be dismissed.

IV. Order

The petition for review is dismissed.