American Federation of Government Employees, Local 3529 (Union) and United States Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas (Agency)

[ v56 p1049 ]

56 FLRA No. 186

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
CENTRAL REGION
IRVING, TEXAS
(Agency)

0-NG-2546

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

January 26, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

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. For the reasons that follow, we find that the proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.     The Proposals

Proposal 3:
The GS-13 EDP/OPS Technical Specialists will be assigned to a team at their "home" [Field Audit Office] (FAO). The team supervisor at the "home FAO" will prepare the performance appraisal using written exit performance ratings obtained from all supervisors for which the GS-13 EDP/OPS Technical Specialist provided 150 hours or more specific or general audit assistance. Each supervisor must prepare an exit rating for all GS- 13 EDP/OPS Technical Specialists who perform 150 hours or more work for their team. All other Technical Specialists in the DCAA Central Region will now be assigned to a team at their FAO.
Proposal 5:
The provisions of the 5 December 1997 Memorandum for Regional Audit Managers and FAO Managers entitled "Implementation Plan for Technical Specialists" remain in effect, except for Section 11 (described in paragraph above), including the Technical Specialist Rotation Procedures.

III.     Positions of the Parties

A.     Agency

      As a preliminary matter, the Agency asserts that the Regional Director of the Dallas Regional Office of the FLRA (the Dallas RD) found, in a prior unfair labor practice (ULP) case involving the same parties, that a proposal similar to the proposals in this case was nonnegotiable. According to the Agency, "an argument may be made" that the judicial doctrine of stare decisis should apply and render Proposals 3 and 5 nonnegotiable. Statement of Position at 4.

      The Agency argues that Proposals 3 and 5 interfere with management's rights to assign work and to assign and direct employees because they designate a particular individual to evaluate employees' performance at particular times. The Agency also argues that the proposals interfere with management's right to assign work because they require management to assign each GS-13 EDP/OPS Technical Specialist (hereinafter "Specialist") to a team and, as a result, preclude the Agency from assigning Specialists to the Branch Manager. In addition, according to the Agency, the proposals interfere with management's rights to assign work and direct employees because they require management to base its assessment of employee performance, at least in part, on the factors set forth in the proposals.

      The Agency contends that the proposals do not constitute procedures within the meaning of section 7106(b)(2) of the Statute. The Agency also contends that the proposals excessively interfere with management's rights and, therefore, are negotiable as appropriate arrangements.

B.     Union

      The Union asserts that Proposal 3 does not interfere with management's right to assign work and, if it does, it does not do so excessively. According to the Union, Proposal 3 "does not require the assignment of work to a specific individual," but "requires the employee's supervisor to prepare the performance appraisal and to use written performance ratings obtained from all supervisors for which the Technical [ v56 p1050 ] Specialist performed a significant amount of work (150 hours or more) during the year." Union Response at 3.

      The Union argues that Proposal 3 provides "procedures for preparation of performance appraisals by setting a threshold of hours (150)" as well as "procedures for [m]anagement to assign Technical Specialists to teams in order to comply with Technical Specialist Performance Standards." Id. at 4. The Union also argues that Proposal 3 constitutes an appropriate arrangement. According to the Union, Proposal 3 would permit Specialists to satisfy the "Exceeds Fully Successful" performance standard, which, the Union argues, requires Specialists to perform work on teams. Further, the Union asserts that the 150-hour threshold constitutes an appropriate arrangement because "[o]therwise, Technical Specialists might perform significant work for other teams throughout the year and have that significant contribution ignored on his or her annual performance appraisal." Id. The Union notes, in this connection, that Proposal 3 is a modification of a proposal put forth by the Agency.

      The Union explains that Proposal 5 would modify a separate Agency memorandum to reflect the change resulting from Proposal 3. The Union asserts that Proposal 5 does not have a meaning independent of Proposal 3, and if Proposal 3 is nonnegotiable, then it is unnecessary to address Proposal 5.

IV.     Meaning of the Proposals

      As clarified at the post-petition conference, Proposal 3 imposes three requirements. First, it requires that all Specialists in the DCAA Central Region be assigned to a home team at their post of duty and not be assigned directly to FAO managers (Requirement 1). Second, it requires that all supervisors for whom a Specialist performs work totaling 150 hours or more prepare an exit performance evaluation of that Specialist when the Specialist completes his or her work (Requirement 2). Third, it requires a Specialist's supervisor to use that exit performance evaluation in preparing the Specialist's annual performance appraisal (Requirement 3).

      Proposal 5 would substitute Proposal 3 for the first paragraph of section 11 of an Agency memorandum providing that Specialists can be assigned either to teams or directly to the FAO manager. Proposal 5 would revise that memorandum to reflect that Specialists may be assigned only to teams.

V.     Preliminary Matter: The Authority Is Not Bound by the Dallas RD's Refusal to Issue a Complaint

      The Authority has held that reasons given by an RD in a decision not to issue a ULP complaint do not constitute a determination by the Authority on the negotiability of a proposal. See AFGE, Council 214, 34 FLRA 977 (1990). Consequently, the Authority will consider such proposals on the merits rather than relying on the RD's statements regarding the proposals. See id. The Dallas RD's refusal to issue a complaint on the ground that the Agency had no duty to bargain over a Union proposal similar to those in this case does not, therefore, provide a basis for declining to consider the negotiability of Proposals 3 and 5.

VI.     Analysis and Conclusions

A.     Proposal 3 Affects Management's Right to Assign Work

      The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). The right to assign work includes the right to "assign additional supervisory duties to an employee who is already a supervisor." United States Dep't of the Navy, Phila. Naval Shipyard, Phila., Pa., 49 FLRA 1363, 1368 (1994) (Dep't of Navy). The Authority held that proposals that either require an employee's supervisor to perform certain duties, or preclude that supervisor from performing certain duties, affect management's right to assign work. See NAGE, Local R1-100, 56 FLRA 268, 272 (2000).

      The Agency asserts, and it is undisputed, that assigning Specialists to teams will result in Specialists reporting to different supervisors. Further, reading Proposal 3 in the context of Proposal 5 indicates that Requirement 1 of Proposal 3 would preclude management from assigning Specialists to FAO managers. As a result, Requirement 1 would preclude management from assigning certain supervisory duties to particular supervisors, and would require assignment of those duties to other supervisors. Accordingly, Requirement 1 affects management's right to assign work. [n2] See id. at 272. [ v56 p1051 ]

      Requirement 2 of Proposal 3 would require management to assign the task of preparing exit performance evaluations to all supervisors for whom Specialists perform work totaling 150 hours or more. Although Requirement 2 does not identify by name the particular supervisors who will be required to perform appraisal duties, it does identify them by function, i.e., all supervisors for whom Specialists perform work totaling 150 hours or more. Because Requirement 2 would require management to assign particular duties to particular supervisors, it affects management's right to assign work. See Dep't of Navy, 49 FLRA at 1368; AFGE, Local 1345, 48 FLRA 168, 176-77 (1993); and NTEU, Chapter 12, 36 FLRA 70, 72-73 (1990).

      With regard to Requirement 3, the Authority has held that proposals requiring management to change or adjust performance expectations in light of specified factors affect management's right to assign work. See AFGE, Local 1164, 49 FLRA 1408, 1414-15 (1994). Requirement 3 would require management to take into account the exit performance evaluations prepared in conjunction with Requirement 2 in preparing the Specialists' overall performance appraisals. Consequently, Requirement 3 would effectively require management to change or adjust performance evaluations in light of the exit appraisals. Thus, Requirement 3 affects management's right to assign work. See id.

      For the foregoing reasons, we find that Proposal 3 affects management's right to assign work.

B.     Proposal 3 Does Not Constitute a Procedure

      The Authority has held that proposals requiring management to assign particular individuals the task of evaluating employee performance do not constitute procedures within the meaning of section 7106(b)(2) of the Statute. See NTEU, Chapter 12, 36 FLRA at 73. Cf. Nat'l Labor Relations Bd. Union, 42 FLRA 1305, 1308-10 (1991), rev'd as to other matters sub nom., NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993).

      Proposal 3 would require management to assign appraisal duties to specific individuals, i.e., every supervisor for whom a Specialist performs 150 hours or more of work. Applying the foregoing Authority precedent, which is not challenged by the parties, we conclude that Proposal 3 does not constitute a procedure.

C.     Proposal 3 Does Not Constitute an Appropriate Arrangement

      In determining whether a proposal constitutes an appropriate arrangement, the Authority applies the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. Id. at 31. The claimed arrangement must also be sufficiently "tailored" to address those employees suffering adverse effects attributable to the exercise of management's rights. NAGE, Local R1-100, 39 FLRA 762, 766 (1991). If the proposal is an arrangement that is sufficiently tailored, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). See NAGE, Local R14-87, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      Even assuming that Proposal 3 constitutes an arrangement that is sufficiently tailored, we find, for the following reasons, that it does not constitute an appropriate arrangement because it excessively interferes with management's right to assign work. See Patent Office Prof'l Ass'n, 56 FLRA 69, 79 (2000).

      The Union alleges that Proposal 3 would benefit Specialists by permitting them to achieve "Exceeds Fully Successful" ratings. Contrary to the Union's assertion, however, the record indicates that assignment to teams is not a prerequisite to such ratings. In particular, Specialists' performance plans state that, if a Specialist "has not been provided an opportunity to perform all aspects of an identified performance level as described in a Critical Job Element," then the lack of performance of those aspects "would not prevent him from being rated at the Exceeds Fully Successful or above level in that element." Attachment 1 at 8 to Union's Response. The Union also alleges that Proposal 3 would benefit Specialists by making them eligible to receive team awards, and by requiring that significant amounts of work be documented and included in their performance appraisals. However, there is no contention that Specialists are assured team awards even if they are assigned to teams, and there is no basis for concluding that additional appraisals would result in higher appraisals for Specialists. Thus, these benefits are speculative.

      By contrast, the burdens on management imposed by Proposal 3 are not speculative. Requirement 1 would [ v56 p1052 ] preclude management from assigning Specialists directly to FAO managers, regardless of the managers' workload needs. The Union provides no explanation as to how FAO managers who need certain tasks performed by Specialists could accomplish those tasks if the Agency were precluded from assigning Specialists to those managers. This blanket prohibition on assignment of Specialists directly to FAO managers would place significant burdens on management. In addition, a Specialist could perform 150 or more hours of work for numerous supervisors in a performance year. As a result, Requirements 2 and 3, which would require a supervisor to prepare an exit appraisal for every Specialist who performs 150 hours or more of work for that supervisor and to use each exit appraisal in preparing a Specialist's overall performance appraisal, could significantly increase the amount of time spent and work involved in appraising Specialists.

      On balance, we conclude that the speculative benefits to Specialists from Proposal 3 are outweighed by the significant burdens the proposal would impose on management. Accordingly, Proposal 3 excessively interferes with management's right to assign work and does not constitute an appropriate arrangement. [n3] Therefore, Proposal 3 is outside the Agency's duty to bargain. In view of the Union's assertion that it is unnecessary to address Proposal 5 if Proposal 3 is found outside the duty to bargain, we do not address Proposal 5 further. [n4] Accordingly, we dismiss the petition.

VII.     Order

      The petition for review is dismissed.



Footnote # 1 for 56 FLRA No. 186

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 186

   Although not raised by the Agency, we note that proposals relating to the administrative and functional structure of agencies, including the relationship of personnel through lines of authority, may affect management's right to determine its organization under section 7106(a)(1) of the Statute. See AFGE, Local 3509, 46 FLRA 1590, 1604-05 (1993).


Footnote # 3 for 56 FLRA No. 186

   As such, we do not address the Agency's arguments that Proposal 3 affects the rights to direct and assign employees. See NAGE, Local R5-184, 55 FLRA 549, 552 n.7 (1999).


Footnote # 4 for 56 FLRA No. 186

   The Union's assertion that Proposal 3 modifies a pr