49:1408(128)NG - - AFGE, Local 1164 and HHS, SSA District Office, Worcester, MA - - 1994 FLRAdec NG - - v49 p1408



[ v49 p1408 ]
49:1408(128)NG
The decision of the Authority follows:


49 FLRA No. 128

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1164

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

DISTRICT OFFICE

WORCESTER, MASSACHUSETTS

(Agency)

0-NG-2175

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 29, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

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), and concerns the negotiability of two proposals relating to the impact and implementation of the assignment of reception duties to Claims Representatives and Claims Development Clerks.(2)

For the reasons that follow, we find that Proposal 2, which requires the Agency in evaluating Claims Representatives to give the time spent performing reception duties only the relative weight due those duties, is nonnegotiable because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. We also find that Proposal 3, which precludes management from placing a Claims Representative on a Performance Improvement Plan (PIP) solely because of performance on reception duties, is nonnegotiable because it excessively interferes with the Agency's rights to direct employees and assign work.(3)

II. Background

The proposals at issue in this case arose during impact and implementation bargaining over the Agency's decision to assign reception duties to employees in the positions of Claims Representative and Claims Development Clerk. According to the Agency, the employees affected by the change in work assignment have in their performance standards "an element requiring public contact and interviewing members of the public." Statement of Position at 2. The Agency adds that these employees "have in their position description a requirement to interview and deal with members of the public . . . ." Id.

III. Preliminary Matters

As a preliminary matter, the Agency asserts that it is not obligated to bargain over Proposal 1 because the subject matter of the proposal, flextime Shift 2 assignments, is covered by the parties' collective bargaining agreement.(4) Accordingly, the Agency contends that the petition as to that proposal should be dismissed because it does not concern a dispute over the negotiability of the proposal but, rather, reflects a dispute over whether the Agency must bargain over a matter that is contained in a negotiated agreement. In support of its position, the Agency cites Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992).

The Union contends that Proposal 1 is properly before the Authority. In this connection, the Union asserts that the subject matter of the proposal is negotiable and that Proposal 1 does not seek to renegotiate the shift 2 assignments agreed to in the parties' agreement. More specifically, the Union states that the first sentence of Proposal 1 merely reaffirms that there has been no change in a previously negotiated condition of employment, and that the second sentence concerns only the Agency's bargaining obligations and "does not negate previous bargaining or attempt to resurrect a subject on which bargaining has been completed." Response at 5. The Union maintains that the proposal is concerned with a flexible work schedule and that, under Authority precedent, alternative work schedules are fully negotiable within the limits set by the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6120 (Work Schedules Act). The Union argues that, as a result, the negotiability of those schedules is not governed by section 7106(a) of the Statute. The Union further maintains that the proposal is negotiable under Executive Order 12871 because it concerns the numbers of employees on a shift, a subject set forth in 7106(b)(1) of the Statute.(5)

Under section 7117 of the Statute and section 2424.1 of our Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. See American Federation of Government Employees, Local 1020 and U.S. Department of Veterans Affairs, Medical Center, Marion, Indiana, 47 FLRA 258, 259 (1993) (Department of Veterans Affairs); National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990) (VA Medical Center, Newington).

The Agency does not allege that the proposal is inconsistent with law, rule or regulation.(6) Thus, because there is no issue before us as to whether the disputed proposal conflicts with law, rule or regulation, there is no dispute appropriate for resolution in a negotiability appeal. Accordingly, we will dismiss the Union's petition for review as to this proposal, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. See 5 C.F.R. Part 2424. See also Department of Veterans Affairs, 47 FLRA at 259; VA Medical Center, Newington, 38 FLRA at 931.

Additionally, to the extent the Agency contends that it is not obligated to bargain because the subject matter of the proposal is covered by the collective bargaining agreement, such contention is not properly before us in this proceeding. Rather, the Agency's claim raises issues that are appropriate for resolution in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379TH, Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).

IV. Proposal 2

In appraising CRs [Claims Representatives], reception duties shall be afforded only the weight due when compared to time spent performing other duties in that GJT [Generic Job Task].

A. Positions of the Parties

1. Agency

The Agency contends that, based on similar proposals, Proposal 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and to assign employees under section 7106(a)(2)(A) of the Statute. In support of its position, the Agency cites National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834 (1990) (Naval Facilities Engineering Command).

The Agency maintains that the proposal would require it to change or adjust its performance expectations. The Agency asserts, in this connection, that the proposal requires it to "make allowances in an employee's evaluation for factors beyond the control of the employee, and not merely consider those factors." Statement of Position at 5. The Agency also maintains that the proposal requires it "to modify performance expectations." Id.

The Agency further states that the Authority has held that the right to assign employees under section 7106(a)(2)(A) of the Statute includes, among other things, the right to determine what work shall be done, how it shall be done and by which employee it shall be done. In support of this statement, the Agency cites American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 174-75 (1986) (Social Security Administration). The Agency makes no argument in response to the Union's claim that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

2. Union

The Union contends that Proposal 2 is a negotiable procedure under 7106(b)(2) of the Statute because it seeks to inform employees of Agency actions regarding conditions of employment and "does not attempt to determine those conditions where that would directly interfere with a management right." Response at 9. The Union states, in this connection, that the proposal is consistent with the Agency's position in negotiations, "that reception duties would not be weighed heavily." Response at 8. The Union adds that the proposal permits the Agency to weigh such duties more heavily as long as it fulfills its obligation to bargain over the impact and implementation of such change. The Union further contends that Proposal 2 is negotiable as a procedure because the proposal seeks, in effect, "fair, equitable, and objective application of the performance appraisal system[.]" Id. at 9. In support the Union cites United Power Trades Organization and U.S. Department of the Army Corps of Engineers, Walla, Walla, Washington, 44 FLRA 1145, 1152-55 (1992) (Army Corps of Engineers).

The Union disputes the Agency's claim that the proposal requires the Agency to make changes in performance expectations. The Union states that, by its wording, the proposal allows the Agency "to apply its performance expectations for the entire performance appraisal period," including when employees are assigned to reception duties. Response at 8. According to the Union, the proposal does not limit the Agency's determination as to the importance of reception duties, other than to provide that such determination be related to the duties and requirements of the position as described by the Generic Job Task System.

In the alternative, the Union contends that Proposal 2 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. According to the Union, in assigning reception duties, the Agency does not reduce the other duties that the employees must perform, such as claims processing. The Union asserts that this creates "increased arduousness" because the employees are required to work more quickly and to undergo repeated interruptions in their more detailed technical assignments, which in turn, could lower the employees' productivity. Id. at 10. Consequently, the Union maintains that a lower performance appraisal would be a reasonably foreseeable effect of the assignment of reception duties without a reduction in performance expectations as to other assigned duties. The Union adds that a negative performance appraisal diminishes an employee's potential for promotion, performance awards, and continued employment.

The Union further maintains that the proposal does not excessively interfere with management's right to assign work. The Union argues that requiring the Agency to give due weight to time spent on reception duties places a minimal burden on the Agency's right to assess an employee's performance. The Union asserts that, consistent with the existing performance appraisal system, the proposal allows the Agency to assess the comparative importance of the duties performed by an employee. The Union also argues that this proposal offers great benefits to employees by ensuring that their evaluations would more accurately reflect their performance of the more complex duties of their positions, as well as the performance of the less complex reception duties.

B. Analysis and Conclusions

1. The Proposal Directly Interferes With Management's Rights to Direct Employees and Assign Work

The establishment of critical elements and performance standards is among the ways that management supervises employees and determines the quantity, quality, and timeliness of work required of employees and, consequently, constitutes an exercise of management's rights to direct employees and assign work. See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775-76 (1980) aff'd, 691 F.2d 553 (D.C. Cir. 1981) (Public Debt). Proposals or provisions that restrict an agency's authority to determine the content of performance standards directly interfere with management's rights to direct employees and assign work. See, for example, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 974-76 (1991) (Food and Nutrition Service). On the other hand, proposals that concern only the application of performance standards do not directly interfere with management's rights to direct employees and assign work. See, for example, Naval Facilities Engineering Command, 36 FLRA at 846. Accordingly, the task in deciding the negotiability of a proposal similar to Proposal 2 "'is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures.'" Food and Nutrition Service, 42 FLRA at 974, quoting Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 387 (1987), aff'd mem. per curiam, No. 87-1135 (D.C. Cir. Mar. 30, 1988).

Even though it may be phrased in terms of application, a proposal nonetheless directly interferes with management's rights to direct employees and assign work if it prescribes substantive criteria that govern the content of performance standards. See Food and Nutrition Service, 42 FLRA at 981. Therefore, even if proposals are phrased in terms of application, proposals that require an agency to change or adjust its performance expectations in light of specified factors directly interfere with management's rights to direct employees and assign work because they constitute a substantive limitation on an agency's ability to determine the content of performance standards. See, for example, 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) (Veterans Affairs, Portland).

The proposal requires the Agency, when evaluating a Claims Representative, to give time spent performing reception duties "only the weight due" those duties, as compared to the time spent performing other duties in that element of the employee's performance appraisal. We find that the proposal, as explained by the Union, would require management to give "limited weight," in assessing an employee's performance, to the amount of time spent on performing reception duties. Petition for Review at 3. As further explained by the Union, the Agency could weigh reception duties more heavily only if it bargains over the impact and implementation of such a change. It is clear from the statements of the Union that this proposal requires the Agency to change or adjust its performance expectations in light of the competing demands made on employees' time by reception duties and other assignments and that, therefore, it constitutes a substantive limitation on the Agency's ability to determine the content of the standards. See 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, 724-25 (1993) (Member Armendariz concurring in part and dissenting in part) (SSA, Office of Hearings and Appeals); Veterans Affairs, Portland, 46 FLRA at 1172; National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 581 (1991) (Customs Service). Accordingly, Proposal 2 directly interferes with management's rights to direct employees and assign work.

In reaching this result, we find that the proposal does not concern merely the application of the established performance standards, as claimed by the Union. The proposal is not, for example, limited to identifying various factors management should consider when evaluating employee performance. See American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276, 1278-83 (1990). Instead, the proposal dictates that if reception duties are performed, those duties must be weighted in a specified way when evaluating an employee. Thus, the proposal could require an adjustment in performance expectations regarding the weight to be given various duties. We also find that the Union's reliance on Army Corps of Engineers is misplaced. In that case, we found negotiable the first portion of Proposal 2, which required the Agency to apply performance standards fairly, equitably and objectively. We noted, based on the plain wording of the proposal and the Union's explanation, that that portion of the proposal concerned only the application of performance standards. In contrast, the proposal in this case requires an adjustment in performance expectations and, therefore, applies to the content of the relevant performance standard.

We further find that the proposal does not, as claimed by the Union, simply memorialize for information purposes the Agency's unilateral decision that it will not weigh reception duties heavily. A proposal that interferes with a management right does not become negotiable because it simply restates an existing agency policy or practice. See, for example, Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149, 161 (1990). Because the inclusion of such a policy or practice in the agreement would prevent an agency from changing the policy or practice during the life of the agreement, proposals restating that policy interfere with applicable management rights. See, for example, id. at 161-62.

Because the proposal directly interferes with management's rights to direct employees and assign work, we find that the proposal does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1188 (1991).

Although we find that the proposal directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, we reject the Agency's assertion that the proposal directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Authority has determined that management's right to assign employees under section 7106(a)(2)(A) of the Statute is the right to assign employees to positions. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990). Consistent with the plain wording of Proposal 2, we find no basis on which to conclude that the proposal involves or affects the Agency's right to assign employees to positions. Instead, the proposal is clearly, and solely, concerned with the performance appraisal process. We note, in this connection, that the Agency's reliance on Social Security Administration is misplaced. The statement on which the Agency relies in that case applies to the right to assign work under 7106(a)(2)(B) of the Statute and not the right to assign employees under section 7106(a)(2)(A) of the Statute. Accordingly, we conclude that the proposal does not directly interfere with management's right to assign employees under section 7106(a)(2)(A).

2. Appropriate Arrangement

We now turn to the question of whether Proposal 2 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute notwithstanding the fact that it directly interferes with management's rights to direct employees and assign work.

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176 (1994) (Member Armendariz concurring in part and dissenting in relevant part) (Department of Commerce). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

For the reasons stated in the separate opinions of Member Armendariz and Chairman McKee set forth below, the Authority finds that Proposal 2 does not constitute an arrangement because it is not tailored and is, therefore, nonnegotiable.

a. Opinion of Member Armendariz

I cannot join in the analyses used by my colleagues to determine whether Proposal 2 constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. The issue of whether a proposal constitutes an arrangement under section 7106(b)(3) of the Statute has been the subject of courts' decisions in National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) (NLRB), United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) (INS), and United States Department of the Interior Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management Service). Consistent with my separate opinions in Department of Commerce, 49 FLRA at 209-14 and SSA, Office of Hearings and Appeals, 47 FLRA at 731-34, in my view, under NLRB, INS, and Minerals Management Service, in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right.

In NLRB, the U.S. Court of Appeals for the District of Columbia Circuit found that a proposal that was "a prophylactic measure applicable to all employees, instead of being 'tailored to benefit or compensate those employees suffering . . . adverse effects[,]'" was not an arrangement under section 7106(b)(3) of the Statute. NLRB, 2 F.3d at 1198, quoting Minerals Management Service, 969 F.2d at 1162. The court stated that in finding that the proposal was an arrangement, the Authority had "made no effort to discern 'whether the balm provided by the proposal would be administered only to hurts arising from'" the exercise of management's rights. Id. The court reaffirmed its interpretation of section 7106(b)(3) that it set forth in Minerals Management Service, "which established that a proposal may qualify as an appropriate arrangement under section 7106(b)(3) 'only when the [proposal] is tailored to benefit or compensate those employees suffering . . . adverse effects.'" Id. at 1197, quoting Minerals Management Service, 969 F.2d at 1162.

In Minerals Management Service, the court stated the following in finding that proposals addressing drug testing programs and agency personnel actions were not arrangements under section 7106(b)(3) of the Statute:

[T]he plain language of § 7106(b)(3) demands that the FLRA assure that arrangements are tailored to redress only those employees adversely affected by a management action. . . . By [the terms of section 7106(b)(3)], Congress necessarily excluded arrangements not tailored to benefit the adversely affected.

. . . .

. . . [W]e read § 7106(b)(3) as unambiguously applying only where the FLRA has identified the reasonably foreseeable adverse effects that will flow from some management action; and only when the proposed arrangement is tailored to benefit or compensate those employees suffering those adverse effects.

Minerals Management Service, 969 F.2d at 1162 (citations omitted).

In INS, the U.S. Court of Appeals for the Fifth Circuit reversed the Authority's holding that a proposal was an arrangement under section 7106(b)(3). The court found that "the Authority's analysis [did] not give proper effect to Congress' explicit intent that § 7106(b)(3) arrangements be negotiable only if such arrangements are aimed at employees who are 'adversely affected.'" INS, 975 F.2d at 225. The court found that the proposal, which required the agency to give employees up to 48 hours to consult with a union representative before the agency could question employees about shooting incidents, was "not tailored to benefit only those employees who would be adversely affected by the [agency's] questioning"; rather, the proposal "simply cover[ed] all employees who are subject to the agency's investigation." Id. at 225, 226 (emphasis in original; footnote omitted).

In my view, the analyses set forth by my colleagues in this case fail to give full force and effect to the courts' holdings in NLRB, INS, and Minerals Management Service. Therefore, although I agree with my colleagues that Proposal 2 directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, I differ with them as to what analysis is used to determine whether Proposal 2 constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. As I interpret NLRB, INS, and Minerals Management Service, in order for a proposal or a provision to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right. As so interpreted, I would apply NLRB, INS, and Minerals Management Service to determine whether a proposal constitutes an arrangement under section 7106(b)(3) of the Statute.

Specifically, I conclude that Proposal 2 is not an arrangement within the meaning of section 7106(b)(3) of the Statute for reasons similar to those set forth in my opinion in Department of Commerce. Proposal 2, on its face, includes within its scope employees who would not suffer an adverse effect as a consequence of being subjected to performance expectations that do not make allowance for competing demands on their time. Because Proposal 2 includes within its scope employees who would not be adversely affected as a consequence of being subjected to performance expectations that do not make allowance for competing demands on their time, it is not tailored to apply to only those employees who will be adversely affected by management's action. Therefore, in my view, Proposal 2 does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute.

Inasmuch as I find that Proposal 2 directly interferes with management's rights to direct employees and assign work and does not constitute an arrangement under section 7106(b)(3) of the Statute, I find that it is nonnegotiable.

c. Opinion of Chairman McKee

In Department of Commerce, the Authority agreed with various court decisions that, under section 7106(b)(3) of the Statute, arrangements must be tailored to compensate or benefit employees suffering adverse effects from the exercise of a management right and cannot be so broad as to apply to all employees without regard to whether they are likely to suffer such adverse effects.

As relevant here, I agree with my colleagues that Proposal 2 requires the Agency to change or adjust its performance expectations in light of competing demands made on an employee's time by the assignment of reception duties. However, I conclude also that the proposal would require the Agency to adjust its performance expectations for all employees assigned reception duties without regard to whether a particular employee's performance is, or likely would be, adversely affected by the assignment of such reception duties.

I adhere to the view expressed by a majority of the Authority in Department of Commerce that, to constitute arrangements, proposals need not be so narrowly tailored in all cases as to benefit or compensate only those employees who would suffer an adverse effect as a result of an exercise of a management right. However, I find no circumstances in this case which justify a failure to expressly target adversely affected employees. I conclude, therefore, that Proposal 2 is not sufficiently tailored and, as a result, does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute. As the proposal directly interferes with management's right to direct employees and assign work, it is nonnegotiable. See American Federation of Government Employees, Local 2879, AFL-CIO, and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074 (1994) (Provision 2) (Member Armendariz concurring, Member Talkin dissenting).

V. Proposal 3

Management will not place any CR on a Performance Improvement Plan (PIP) solely based on reception duties.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In this connection, the Agency cites Naval Facilities Engineering Command, 36 FLRA at 845, for the principle that proposals absolving employees of accountability for meeting certain levels of performance directly interfere with management's rights to direct employees and assign work.

2. Union

The Union contends that the proposal does not absolve employees of accountability for meeting certain levels of performance. Rather, according to the Union, the proposal requires the Agency to continue to apply the established performance appraisal system. In support of its position, the Union cites 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 346, 347-50 (1991) (Department of Health and Human Services). The Union adds that the proposal would require management "to evaluate employee performance fairly and objectively based on the performance standards contained in the established performance plan[.]" Response at 6.

The Union notes that 5 C.F.R. Part 432 requires agencies to place on a PIP an employee whose performance in one or more critical elements is determined to be unacceptable.(7) The Union asserts that the Agency has not designated reception duties as a critical element. The Union argues that, as a result, it cannot use a PIP to hold an employee accountable for performance of such duties. The Union adds, however, that the proposal does not prevent the Agency from placing on a PIP an employee whose performance in a critical element is determined to be unacceptable or to designate reception duties as a critical element in the future.

In the alternative, the Union asserts that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Union contends that the proposal does not excessively interfere with management's right to assign work. The Union maintains that the proposal would have only a minimal effect on the Agency. The Union argues, in this connection, that as the proposal is not concerned with a critical element, it does not preclude the Agency from taking corrective action when an employee is determined to be unacceptable in a critical element. Additionally, the Union asserts that the proposal permits the Agency "to redesign" its performance appraisal system to "increase the significance of reception duties if it chooses to do so." Id. at 12. The Union further maintains that the proposal offers great benefits to employees by ensuring that their evaluations would more accurately reflect their performance of more complex duties as well as less complex duties such as reception duties.

B. Analysis and Conclusions

1. Meaning of the Proposal

Before addressing the merits of the proposal, we note that the record does not indicate whether reception duties have been designated as a critical element, a noncritical element or a component of one of the foregoing. In addition, we note that the record contains copies of neither the employees' position descriptions nor the performance appraisal system. The Union asserts that reception duties have not been designated as a critical element. However, the Union has not supported its assertion in this regard. On the other hand, the Agency states that affected employees have in their performance standards "an element requiring public contact and interviewing members of the public." Statement of Position at 2. The Agency adds that these employees "have in their position description a requirement to interview and deal with members of the public . . . ." Id. Based on the record as a whole, it appears that significant facets of reception duties are, at the least, a component of a critical element. Our finding is consistent with the Union's statement, in its petition for review, that reception duties are, "at best a sub-element . . . ." Petition for Review at 3. In these circumstances, we assume for purposes of our decision that significant facets of the recently assigned reception duties have been designated as a component of a critical element and, therefore, that inadequate performance of those duties could lead to an unacceptable rating on a critical element.

2. The Proposal Directly Interferes With Management's Rights to Direct Employees and Assign Work

As we discussed in conjunction with Proposal 2, it is well established that management's rights to direct employees and assign work include the right to supervise employees by determining the quantity, quality, and timeliness of employees' work products and by establishing employees' work priorities. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of Defense, Defense Finance and Accounting Service, Washington, D.C., 45 FLRA 910, 913 (1992) (Defense Finance and Accounting Service); Public Debt, 3 FLRA at 775-76. The establishment of critical elements and performance standards to evaluate employees is one of the ways that management exercises its rights to direct employees and assign work. See, for example, Public Debt, 3 FLRA at 775-76; see also Defense Finance and Accounting Service, 45 FLRA at 913-14 (management's rights to direct employees and assign work extend to the establishment of job requirements in the form of productivity or performance standards that serve as the basis for encouraging and rewarding successful performance and discouraging and remedying performance that is unacceptable).

The right to evaluate employee performance extends to the determination of the rating that management will assign to a given employee. See American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 169 (1987). Proposals that prohibit management from holding employees accountable for work performance directly interfere with management's rights to direct employees and assign work. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Office of Hearings and Appeals, 44 FLRA 293, 300 (1992). Put another way, proposals that prevent management from enforcing its established performance standards directly interfere with management's rights to direct employees and assign work because they effectively alter the content of the standards. See National Treasury Employees Union and Department of Health and Human Services, Office of Hearings and Appeals, 34 FLRA 1022, 1026 (1990).

While Proposal 3 would not absolutely prohibit the Agency from holding employees accountable for failing to meet established performance standards for reception duties, it would place a substantive limitation on the Agency's ability to do so. That is, by preventing the Agency from using such performance as a basis for placing an employee on a PIP, this proposal limits the extent to which the Agency may enforce its performance standards and hold employees accountable for such performance. Thus, in circumstances where, under the Agency's established performance standards, such performance would warrant placing an employee on PIP, this proposal would require the Agency to modify its performance expectations. See Customs Service, 40 FLRA at 581 (a proposal that requires an agency to change or adjust its performance expectations directly interferes with management's rights to direct employees and assign work).

We further note that although the Union states that the Agency would be free to change its appraisal system to include a critical element based solely on reception duties, the plain language of the proposal would prohibit the Agency from placing on a PIP an employee who performed unsatisfactory work in that element. Compare National Association of Agriculture Employees, Local 39 and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Elizabeth, New Jersey, 49 FLRA 319 (1994) (Proposal 2, which prohibited management from designating performance elements as critical when certain circumstances were present, directly interfered with management's rights to direct employees and assign work).

Based on the foregoing, we conclude that Proposal 3 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

3. Appropriate Arrangement

We now turn to the question of whether this proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute notwithstanding the fact that it directly interferes with management's rights to direct employees and assign work. As we discussed in conjunction with Proposal 2 above, to determine whether a proposal constitutes an appropriate arrangement, we apply the analytical framework that was set forth in KANG. Even assuming that this proposal constitutes an arrangement for employees adversely affected by the exercise of management's rights under the first part of the KANG analysis, however, we conclude that it is nonnegotiable because it excessively interferes with management's rights to direct employees and assign work.

As discussed above, an employee could be reduced in grade or removed if the employee's performance of reception duties during or after the PIP period continues to be unacceptable. This proposal offers a significant benefit to employees by prohibiting the Agency from using reception duties as a basis for placing them on a PIP. Thus, the proposal protects employees from the adverse results, including removal, that could occur if unacceptable performance of reception duties provided the basis for placing an employee on a PIP. However, although Proposal 3 offers a significant benefit to employees, it also places severe restrictions on management's rights. By precluding the Agency from placing on a PIP an employee who has not met performance standards with regard to reception duties, the proposal limits management's ability to determine the means appropriate to enforce its performance standards. Moreover, under the proposal, the Agency would not be free to change its appraisal system to include a critical element based solely on reception duties because the plain language of the proposal would prohibit the Agency from placing on a PIP an employee who performed unsatisfactory work on that element. Consequently, on balance, we find that the restrictions that Proposal 3 places on management's rights to direct employees and assign work outweigh the benefits to employees and that this proposal excessively interferes with those rights. Accordingly, Proposal 3 is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statue.

In summary, we find that the proposal directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and that it excessively interferes with management's rights. Therefore, we find that the proposal is not a negotiable appropriate arrangement under section 7106(b)(3) of the Statute and is outside the Agency's duty to bargain.

VI. Order

The petition for review with respect to Proposals 2 and 3 is dismissed. The petition for review is dismissed as to Proposal 1 without prejudice to the Union's right to file a negotiability appeal, if it so elects and the conditions governing review under the Authority's Rules and Regulations have been met.

APPENDIX

5 C.F.R. § 432.104, "Addressing unacceptable performance by non-PMRS [Performance Management and Recognition System] employees," provides:

At any time during the performance appraisal cycle that a non-PMRS employee's performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standards(s) that must be attained in order to demonstrate acceptable performance in his or her position. The agency should also inform the employee that unless his or her performance in the critical element(s) improves to and is sustained at an acceptable level, the employee may be reduced in grade or removed. For each critical element in which the employee's performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position. As part of the employee's opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance.

5 C.F.R. § 432.106, "Proposing and taking action based on unacceptable performance for non-PMRS [Performance Management and Recognition System] employees," provides, in pertinent part:

(a) Proposing action based on unacceptable performance. (1) Once an employee has been afforded a reasonable opportunity to demonstrate acceptable performance pursuant to § 432.104, an agency may propose a reduction-in-grade or removal action if the employee's performance during or following the opportunity to demonstrate acceptable performance is unacceptable in 1 or more of the critical elements for which the employee was afforded an opportunity to demonstrate acceptable performance.

Opinion of Member Talkin, Dissenting as to Proposal 2

Contrary to the conclusion of my colleagues, I would find that Proposal 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

In National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in relevant part) (Department of Commerce), we held that in determining whether a proposal constitutes an arrangement under the first part of the test set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), we would "not require that proposals be tailored with surgical precision." Thus, while we agreed with the courts addressing this issue that the Statute does not require negotiations over arrangements that make no attempt to target specifically those employees suffering adverse effects, we concluded that we should not require proposals presented as appropriate arrangements "to be so narrowly tailored that the ability of adversely affected employees to obtain benefits under section 7106(b)(3) of the Statute would be seriously impaired." Department of Commerce, 49 FLRA at 184. Applying this standard, I conclude that Proposal 2 is sufficiently tailored to support a finding of negotiability.

In my view, Proposal 2 seeks to prevent employees from being penalized by less favorable performance appraisals that could result from an undue emphasis on the newly assigned reception duties.

As we stated recently in 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 (1993) (Member Armendariz concurring in part and dissenting in part) (SSA, Office of Hearings and Appeals), "the effect of all aspects of an appraisal on the employee's career is pervasive and performance appraisals 'will surely have adverse effects on some employees.'" 47 FLRA at 725, quoting United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992). In that case, we found negotiable a provision requiring the Agency to take into account, when evaluating an employee's performance, all job functions the employee was expected to perform and the time available to the employee to perform those functions. We concluded that "if an employee is held to performance expectations that do not take into account the various competing demands on the employee's time, it is reasonably foreseeable that the employee's appraisal will be detrimentally affected and, as a consequence, the employee's potential for career progression, eligibility for awards, and even continued employment will be diminished." 47 FLRA at 726. We further concluded that adverse consequences can flow from an appraisal "at any level that provides a less favorable view of the quality of an employee's performance than is warranted by the employee's actual performance . . . ." Id. Finally, we concluded that although the provision included within its scope employees who might not suffer such adverse effects, their inclusion was "purely incidental to the fact that every employee in the unit has the potential to come within the class of employees who would be adversely affected by the circumstances addressed by the provision." Id. at 727.

Similarly, I would find that Proposal 2 seeks to prevent the adverse effects that could arise from the assignment of reception duties and the evaluation of employees on those duties, and that the proposal is sufficiently tailored to constitute an arrangement under section 7106(b)(3) of the Statute. See Department of Commerce, 49 FLRA at 191-92 ("where prophylactic proposals are involved, there is a limit to the extent to which proposals may be tailored without severely hampering the union's ability to address in a meaningful and effective manner adverse effects resulting from the exercise of a management right[]"); National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 685-86 (1991) (proposals that are intended to eliminate the possibility of an adverse effect may constitute arrangements for adversely affected employees within the meaning of section 7106(b)(3)). See also United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162-63 (D.C. Cir. 1992) (court rejected interpretation of section 7106(b)(3) that "use of the past tense in the phrase 'adversely affected' creates a temporal wall forbidding any negotiability except as to harm that has already occurred[]"). As was the case in SSA, Office of Hearings and Appeals, it is not possible to ascertain in advance which employees might be adversely affected if inordinate weight were given to reception duties in contrast to other assigned tasks in the GJT.

I would also find, under the second part of the KANG test, that Proposal 2 is an appropriate arrangement. In this regard, I note that the proposal offers significant benefits to employees. By requiring that Agency management give reception duties the weight commensurate with the time spent performing those duties, the proposal ensures that an employee's evaluation will not be based on an inaccurate assessment of the competing demands on the employee's work time and it minimizes the extent to which the assignment of reception duties, which places new demands on the employee's time and ability to perform other assigned work, would have a negative effect on the employee's evaluation. In contrast, the burden placed on management's rights to direct employees and assign work is slight. Under this proposal the Agency retains the right to determine which aspects of an employee's work will be evaluated and what performance requirements relating to quantity, quality, and timeliness will be placed on the employee, provided that the weight given reception duties is commensurate with the time spent performing those duties. The proposal does not prescribe the specific weight that must be given any of the assigned duties. Moreover, there is nothing in the plain wording of the proposal, or the Union's stated intent, that would preclude the Agency from giving additional weight in evaluating an employee's performance to serious mistakes that occurred when the employee was performing any of the assigned functions, including reception duty. Thus, I would find that the benefits afforded employees by Proposal 2 outweigh the burden on management's rights to direct employees and assign work, and that the proposal does not excessively interfere with management's rights and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See SSA, Office of Hearing and Appeals, 47 FLRA at 729; National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1173-74 (1993) petition for review filed, No. 93-1201 (D.C. Cir. Mar. 11, 1993); National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 582-83 (1991).

Accordingly, although I agree that Proposal 2 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, I would find it to be a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.




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

1. The opinion of Member Talkin, dissenting as to Proposal 2, is set forth at the end of this decision.

2. The petition for review contained five proposals. In its statement of position, the Agency withdrew its allegation of nonnegotiability as to two proposals. Accordingly, we will not address those proposals as they are not before us in this proceeding. We further find that Proposal 1 is not before us for reasons described more fully in our discussion of preliminary matters.

3. The Union requests that the Authority sever any portions of the proposals that may be negotiable from those portions that are found nonnegotiable. Ordinarily, the Authority grants such requests where the negotiability of portions of a proposal can stand independently of the rest of the proposal and have been specifically addressed by the parties. See, for example, American Federation of Government Employees, Local 2077 and U.S. Department of Defense, Michigan Air National Guard, 127th Tactical Fighter Wing, 43 FLRA 344, 353 n.7 (1991). In this case, neither of the two proposals before us contains more than one disputed portion. Consequently, there is no basis on which to grant the Union's request.

4. Proposal 1 provides as follows:

This agreement does not alter management's determination of the minimum number of employees necessary for assignment to flextime Shift 2 based on operational needs. If management decides to change that determination in the future, it will first notify the Union and afford opportunity to bargain over the impact and implementation of that change.

5. On October 1, 1993, the President issued Executive Order 12871, "Labor-Management Partnerships" (58