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

[ v57 p172 ]

57 FLRA No. 43

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529
(Union)

and

U.S. DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
CENTRAL REGION, IRVING, TEXAS
(Agency)

0-NG-2514

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

May 23, 2001

_____

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

I.     Statement of Position

      This case is before the Authority on a negotiability appeal filed by the Union under § 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns four proposals relating to the Agency's Audit Performance Planning System (APPS), an electronic paperwork process. [n2]  The Agency filed a statement of position and the Union filed a response. The Agency did not file a reply to the Union's response.

      For the reasons that follow, we find that Proposals 1 and 10 are negotiable only at the election of the Agency. We also find that Proposals 8 and 9 are outside the duty to bargain.

II.     Background

      The mission of the Agency is to perform audits of procurement and other contracting activities involving [ v57 p173 ] the Department of Defense and its contractors. The employees covered by the disputed proposals are the auditors who conduct those audits. Essentially, auditors collect substantiating documents pertaining to the contracts being audited, analyze those documents and other relevant information relating to those contracts consistent with applicable guidelines and regulations, and prepare a report containing conclusions on the contractor's compliance with those requirements. The documents and other information related to a given audit are referred to as "working papers" and the totality of those documents, including the audit report, is a "working paper package." The documents and information in a working paper package must be indexed and appropriately cross-referenced and presented in a standardized format. Currently, auditor working papers "can consist entirely of hardcopy working papers, or include a mix of hardcopy and electronic files." "Procedures for Electronic Audit Working Papers," Enclosure included in Attachment 1 to Union Response at 1. The Agency's goal is to adopt "a completely electronic working paper package." Id. The APPS represents the Agency's current attempt to achieve that goal.

      The parties negotiated on the implementation of the APPS and reached agreement on some matters. The Agency maintained that other matters, including the disputed proposals in this case, were nonnegotiable. The record indicates that the parties entered into a three-year collective bargaining agreement which was effective on October 15, 1996. There is no dispute that, at the time of the negotiability appeal in this case, the collective bargaining agreement had expired. The record indicates, however, that the agreement provided that the terms of the agreement would remain in effect until the parties negotiated a new agreement. See, e.g., Agency Statement of Position at 8.

III.     Proposals 1 and 10  [n3] 

Proposal 1
The parties recognize successful implementation of APPS involves active involvement and judicious discretion at the FAO [Field Audit Office] level. Auditors shall discuss the use of APPS and the related MRD No. 98-PAS- 141(R), as amended, with their supervisors. If the auditor and supervisor disagree over whether or not to use APPS on a specific audit, the auditor will decide on the degree of its use, if any, and the matter will be brought to the attention of the FAO manager and Union president for resolution.
Proposal 10
The number of electronic files used will be left up to individual auditor judgment. Employees will not be required to use electronic working papers when such use would be counter productive or inefficient, such as when contractor software is incompatible with DCAA software and the creation of electronic working papers would be extremely time consuming.

A.     Positions of the Parties

1.     Agency

      According to the Agency, Proposal 1 allows employees "to retain the unilateral and complete ability" to prevent the Agency from requiring them to use APPS or from assigning them work that necessitates the use of APPS. Agency Statement of Position at 4 (emphasis in original). The Agency claims that proposals restricting management's right to decide the particular duties to be assigned to employees or positions interfere with management's rights under § 7106(a)(2)(A) and (B) of the Statute.

      The Agency also claims that Proposal 1 would, "de facto," involve bargaining over the content of its performance standards. Id. at 5. The Agency notes in this regard that auditor position descriptions reference the use of Agency-prescribed software and that performance standards for those positions provide criteria for evaluating employee use of the software. The Agency argues that allowing employees to decide whether they will use the APPS software would affect management's ability to determine the content of its performance standards, in effect, rendering portions covering the use of software "moot." Id. The Agency contends that, in this regard, Proposal 1 interferes with management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B).

      The Agency claims that, by permitting employees not to use electronic working papers, Proposal 10 precludes the Agency from obtaining a "finished work product" and, thus, interferes with management's right to assign work under § 7106(a)(2)(B) of the Statute. Id. at 11. [ v57 p174 ]

      The Agency contends that Proposal 1 is not procedural but substantive because it completely prevents management "from assigning/directing the use of APPS to accomplish its mission and obtain a work product, if an [a]uditor unilaterally disagrees and refuses an assignment to use APPS." Id. at 4. Moreover, the Agency maintains, "within the framework and plain meaning . . . of the proposal," management would be "barred from ever requiring the use of APPS if the [a]uditor disagrees or if the FAO Manager and the Union President cannot agree." Id. (emphasis in original). The Agency also claims that Proposal 10 is not a procedure under § 7106(b)(2) of the Statute.

      Finally, the Agency notes that the "assignment of audits using APPS [is] designed to change the method of performing its work in order to fulfill its mission." Id. at 6 (emphasis in original). The Agency claims that there is "a direct and integral relationship between the use of APPS and the direct accomplishment of its mission." Id. The Agency also claims that Proposal 1 would "interfere with the mission-related purpose for which the . . . plan to implement APPS was adopted." Specifically, the Agency argues that auditors who do not use APPS would produce audits manually, "which then must be encoded by another employee into APPS to be compatible with the Agency software," undermining the efficiencies derived from the use of that software. Id. The Agency makes similar claims as to Proposal 10.

2.     Union

      The Union explains that, under Proposal 1, "the individual auditor will have the discretion to decide the degree of usage of APPS[,] unless the Union president and FAO manager agree otherwise." Petition for Review at 4. According to the Union, "APPS is just another audit tool at the auditor's disposal" and each auditor "should have the discretion to use or not use particular audit tools" as their judgment dictates. Id. As explained by the Union, Proposal 10 "means that the auditor decides if, when, and how much to use electronic files." Id. at 10.

      The Union states that Proposals 1 and 10 do not interfere with management's right to assign work under § 7106(a)(2)(B) because any disagreements between the employee and the supervisor will be resolved by the FAO manager and the Union president. For this reason, the Union maintains that Proposals 1 and 10 constitute procedures under § 7106(b)(2).

      The Union also contends that the use of APPS "causes inefficiencies in the audit process that could be relieved with auditor discretion." Union Response at 3, 10. According to the Union, the use of APPS results in "more time spent on audits" and auditors could receive lowered performance evaluations because they "are graded, in part, on meeting time budgets." [n4]  Id.

      The Union asserts that "APPS is an electronic workpaper package" that constitutes a matter pertaining to the technology, methods, and means of performing work within the meaning of § 7106(b)(1) of the Statute. Specifically, the Union argues, APPS is an audit "tool" or method used by the Agency to conduct audits. Id. at 3. The Union claims that Proposals 1 and 10 concern matters pertaining to the technology, methods, and means of performing work under § 7106(b)(1) of the Statute.

      Finally, the Union contends that "normally permissive" subjects covered by § 7106(b)(1), such as Proposals 1 and 10, are made "mandatory" by the parties' collective bargaining agreement. Id. The Union argues that, because Proposals 1 and 10 are covered by § 7106(b)(1), they are negotiable.

B.     Analysis and Conclusions

1.     Meaning of the Proposals

      In interpreting a disputed proposal, the Authority examines its plain wording and any union explanation of intent. See, e.g., AFGE, Local 2031, 56 FLRA 32, 34 (2000). By its terms, and as explained by the Union, Proposal 1 allows individual auditors to decide whether they will use APPS in performing assigned audits. Any disagreements between the auditor and the supervisor in this regard will be resolved by the local office manager and the Union president. Proposal 1, however, contains no process for deciding the matter should the FAO manager and the Union president fail to agree. By its terms, and as explained by the Union, Proposal 10 permits auditors to decide the extent to which they will use electronic working papers, including APPS, in performing audits. In effect, under the proposals, use of APPS is contingent on the agreement of the auditor and/or the Union president.

      Consequently, because the Union's explanation comports with the plain wording of the proposals, we adopt this interpretation of their meaning. [n5]  [ v57 p175 ]

2.     Analytical Framework for Resolving Negotiability Disputes under § 7106(a) and (b) of the Statute

      In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998) (HUD Council of Locals), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain. Then, if necessary, the Authority will address those claims that would determine if a proposal is electively negotiable. See, e.g., NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998).

3.     Proposals 1 and 10 Affect Management's Rights Under § 7106(a) of the Statute

      The Union does not dispute the Agency's claims that Proposal 1 affects management's rights to assign and direct employees under § 7106(a)(2)(A). The Union also does not dispute that the Agency's decision to require employees to use APPS in performing audits constitutes an exercise of the right to assign work within the meaning of § 7106(a)(2)(B). Accordingly, we find that Proposal 1 affects management's rights to direct and assign employees under § 7106(a)(2)(A) and that Proposals 1 and 10 affect management's right to assign work under § 7106(a)(2)(B) of the Statute.

4.     Proposals 1 and 10 Do Not Constitute Procedures under § 7106(b)(2)

      Proposals that condition the exercise of a management right on the agreement of employees or their union do not constitute procedures under § 7106(b)(2) of the Statute. See, e.g., AFGE, AFL-CIO, Local 1931, 32 FLRA 1023, 1032 (1988) (AFGE, Local 1931); AFGE, Local 2761, 32 FLRA at 1009. Because Proposals 1 and 10 condition the exercise of management's rights on the agreement of the employee and/or the union, they do not constitute procedures under § 7106(b)(2). [n6] 

5.     Proposals 1 and 10 Concern Matters that are Negotiable at the Election of the Agency under § 7106(b)(1) of the Statute

      Based on the Union's claim, the question here is whether the proposal concerns the methods and means of performing work within the meaning of § 7106(b)(1). [n7]  There are two prongs to the Authority's test used to determine whether a proposal concerns the methods or means of performing work. [n8]  First, the proposal must concern a "method" or "means" as defined by the Authority. In this regard, the Authority construes the term "method" to refer to how an agency performs its work. See, e.g., General Services Admin., 54 FLRA 1582, 1590 n.6 (1998). The term "means" refers to what an agency uses to perform its work. Id. Second, it must be shown that: (1) there is a direct and integral relationship between the particular methods or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, e.g., Council 236, 55 FLRA at 452.

      As to the first prong, Authority precedent establishes that the forms or documents that an agency uses in accomplishing its mission constitutes a determination as to the methods or means of performing work. See, e.g., AFGE, Local 1020, 47 FLRA 258, 270-71 (1993); Maritime Metal Trades Council, 17 FLRA 890, 894-95 (1985).

      As to the second prong, the Agency asserts, and the Union does not dispute, that the mission of the [ v57 p176 ] Agency is to perform audits of the Agency's contracting activities, that the use of APPS software is integral to the accomplishment of that mission, or that the purpose for which the Agency uses APPS is to complete audits more efficiently. By providing that the use of APPS is contingent upon the agreement of the employee and/or the Union, Proposals 1 and 10 would interfere with the mission-related purposes for which the Agency adopted that software. Specifically, in this regard, the proposals permit APPS not to be used at all. Consequently, under the Authority's test, the duty to bargain does not extend to Proposals 1 and 10.

      Accordingly, we find that Proposals 1 and 10 concern matters within § 7106(b)(1) of the Statute. Therefore, they are bargainable only at the election of the Agency.

6.     The Parties' Dispute as to the Agency's Bargaining Obligation under the Collective Bargaining Agreement is Not Covered by the Authority's Negotiability Regulations

      The Union claims that under Article 4 of that agreement, the terms of which continue in effect despite the agreement's expiration, the Agency agreed to bargain on § 7106(b)(1) matters. [n9]  The Agency disagrees, claiming that "[t]he Authority's framework for adjudicating the disputed proposals remains the same without regard to Article 4." Statement of Position at 12.

      The parties' disagreement over the effect of Article 4 presents the Authority with a contractual bargaining obligation dispute. However, § 2424.30 of the Authority's Regulations, which prescribes the conditions under which the Authority will resolve a bargaining obligation dispute in a negotiability case, applies only to statutory bargaining obligation disputes. In particular, § 2424.30 makes it clear that the bargaining obligation disputes that the Authority will resolve in a negotiability proceeding are those that otherwise would be resolved pursuant to "an unfair labor practice charge or a grievance alleging an unfair labor practice." It is well established that a contract violation does not by itself constitute an unfair labor practice under the Statute. [n10]  See United States Penitentiary, Florence, Co., 54 FLRA 30, 31 (1998), citing Dep't of the Air Force, 375th Mission Support Squadron, Scott AFB, Ill., 51 FLRA 858, 862 (1996). See also the definition of "bargaining obligation disputes" in § 2424.2(a) of the Authority's Regulations, citing only statutory defenses to the duty to bargain as examples. Put simply, Authority orders in negotiability cases are designed to enforce an agency's statutory--not purely contractual--obligation to bargain. Therefore, the Authority resolves only those issues necessary to determine that statutory obligation. Consequently, we will not address further the Union's claim that the Agency is obligated to bargain over the proposals under the parties' contract.

IV.     Proposal 8

Employees electing not to use APPS shall not have that election negatively impact their performance evaluations.

A.     Positions of the Parties

1.     Agency

      According to the Agency, the proposal "concerns how [it] evaluates the manner in which its employees perform the work to which they have been assigned." Statement of Position at 10. Specifically, the Agency contends that because the proposal would "absolutely" insulate employees from "adverse evaluations" with respect to their use of the APPS software, the proposal requires it to adjust the content of its performance standards. Id. at 9. In this regard, the Agency claims that the proposal interferes with its rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute.

2.     Union

      According to the Union, the proposal means that, "since the auditor has discretion to use or not use APPS, the [Agency] will not give negative evaluations to those [ v57 p177 ] employees exercising that discretion." Petition for Review at 8. The Union claims that the issues as to Proposal 8 are the same as those with respect to Proposal 1. Specifically, the Union argues that APPS is an audit tool and constitutes a matter pertaining to the methods and means of performing work under § 7106(b)(1). The Union claims that the use of APPS is electively negotiable and does not interfere with management's right to assign work.

      The Union states that, because the use of APPS requires more time, employees could be adversely affected in their performance appraisals with respect to timeliness requirements. The Union asserts that the proposal is intended to address inefficiencies in the use of APPS. The Union maintains that the proposal is a procedure under § 7106(b)(2) because any disagreements between the employee and the supervisor will be resolved by the FAO manager and the Union president.

      Finally, the Union contends that "normally permissive" subjects covered by § 7106(b)(1), such as Proposal 1, are made "mandatory" by the parties' collective bargaining agreement. The Union argues that, because Proposal 1 is covered by § 7106(b)(1), it is negotiable.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, and as explained by the Union, Proposal 8 would preclude the Agency from lowering an employee's performance evaluation based upon that employee's decision not to use APPS in performing an audit.

2.     Proposal 8 Affects Management's Rights to Direct Employees and Assign Work under § 7106(a)(2)(A) and (B) of the Statute

      The Authority has consistently held that proposals that prohibit management from holding employees accountable for work performance directly interfere with management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. See, e.g., AFGE, Local 1164, 49 FLRA 1408, 1423 (1994). Stated differently, proposals that prohibit 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, e.g., NTEU, 47 FLRA 705, 710 (1993).

      The record indicates that the Agency's performance standards establish criteria for evaluating employee use of Agency-approved software, such as APPS. See Second Attachment to the Agency's Statement of Position. By preventing the Agency from using an employee's decision not to use APPS as the basis for lowering an employee's performance evaluation, Proposal 8 limits the extent to which the Agency may enforce its performance standards and hold employees accountable for such performance. Consequently, Proposal 8 affects management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. See, e.g., AFGE, Local 2031, 56 FLRA at 34.

3.     Proposal 8 Does Not Constitute a Procedure under § 7106(b)(2)

      The Union claims that the proposal is a procedure under § 7106(b)(2) because it contains a process for resolving disputes as the use of APPS. On its face, the proposal contains no such process. However, even assuming that the proposal incorporated the process referenced in Proposal 1, as noted above, Section III.B.4. of this decision, the Authority has held that proposals that condition the exercise of a management right on the agreement of employees or their union do not constitute procedures under § 7106(b)(2) of the Statute. See, e.g., AFGE, Local 1931, 32 FLRA at 1032; AFGE, Local 2761, 32 FLRA at 1009. Further, proposals that require the Agency to adjust performance expectations do not constitute procedures within the meaning of § 7106(b)(2) of the Statute. See, e.g., AFGE, Local 1164, 49 FLRA at 1416.

      Accordingly, we find that Proposal 8 is not a procedure within the meaning of § 7106(b)(2) of the Statute. [n11] 

4.     Proposal 8 Does Not Concern a Matter that is Negotiable at the Election of the Agency under § 7106(b)(1) of the Statute

      Proposal 8 concerns the evaluation of employees' performance. The Authority has recently affirmed that proposals that relate to the manner in which employees are evaluated do not constitute matters pertaining to the methods and means of performing work within the meaning of § 7106(b)(1) of the Statute. GSA, 55 FLRA at 452-53. In particular, in GSA the Authority held that proposals that governed the evaluation of employee performance, such as the number and designation of rating levels, "do not concern how an agency performs its work or what an agency uses to accomplish its work. [ v57 p178 ] Rather, such proposals concern how an agency evaluates the manner in which its employees perform the work to which they have been assigned." Id. at 452. Because Proposal 8 pertains to the evaluation of employees' use of the techniques and tools they have been directed to employ in performing assigned work, rather than to what those techniques and tools should be, consistent with GSA, it does not concern the methods and means of performing work within the meaning of § 7106(b)(2).

      Accordingly, we find that Proposal 8 does not concern matters pertaining to the methods and means of performing work within the meaning of § 7106(b)(1). Because the proposal affects management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B), and is not a negotiable procedure under § 7106(b)(2), we find that the proposal is outside the duty to bargain and we will dismiss the petition for review as to the proposal. [n12] 

V.     Proposal 9

The auditor is not responsible for ensuring that the Supervisory Auditor[-]reviewed file is included in the working paper (WP) package.

A.     Positions of the Parties

1.     Agency

      According to the Agency, the Supervisory Auditor assigns audits to individual auditors and reviews the audits produced by those auditors. The Agency interprets Proposal 9 as requiring the Supervisory Auditor, rather than the individual auditor, to be responsible for including in the working paper package the audit files that he or she has reviewed. The Agency claims that the proposal precludes management "from ever assigning the work of filing a Supervisory Auditor-reviewed file in the working paper [] package to an [a]uditor." Statement of Position at 10. The Agency argues that the proposal interferes with management's right to assign work under § 7106(a)(2)(B) of the Statute. The Agency also cites Authority precedent holding that proposals that immunize employees from adverse performance evaluations interfere with the exercise of management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute.

2.     Union

      The Union states the Proposal 9 is intended to mean that "someone other than the auditor is responsible for ensuring that the supervisory auditor reviewed file is included in the working paper package." Petition for Review at 9. The Union explains that "since the auditor hands the working paper package to the supervisor and may never see the file again, that auditor should not be responsible for inclusion of the supervisory reviewed file." Id.

      The Union claims that the proposal constitutes a procedure within the meaning of § 7106(b)(2) because it concerns the process by which the supervisory file will be included in the working papers. The Union states that it makes no difference to whom management assigns responsibility for inclusion of the file, as long as it is not the auditor, "if he or she hasn't seen the file." Union Response at 8.

      The Union also claims that Proposal 9 constitutes an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute. According to the Union, the proposal is intended to address the adverse effects on employees flowing from the exercise of the right to assign work. Specifically, employees who are required to ensure that the supervisory file is included in the working paper package are adversely affected by negative performance evaluations when they have never seen that file and it is not included in the package. The Union states that the proposal "will help those auditors adversely affected because they will not be held responsible for placing the supervisory file" in the working paper package. Id. at 9.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, and as explained by the Union, Proposal 9 would preclude the Agency from holding an auditor responsible for the inclusion of the Supervisory Auditor-reviewed file in the working papers package. According to the Union, once a Supervisory Auditor has reviewed an audit file prepared by an auditor, the reviewed file is not necessarily returned to the auditor and the intent of the Union is to prevent the auditor from being held accountable for whether or not that file is included in the working papers package. The effect of the proposal would be to prevent auditors from being adversely appraised for failure to accomplish that task. [ v57 p179 ]

2.     Proposal 9 Affects Management's Rights to Direct Employees and Assign Work under § 7106(a)(2)(A) and (B) of the Statute and Does Not Constitute a Procedure under § 7106(b)(2)

      The Union does not dispute the Agency's contention that the proposal affects management's rights under § 7106(a)(2)(A) and (B) of the Statute. See, e.g., NFFE, Local 1655, 49 FLRA 874, 877-78 (1994) (proposals precluding management from holding employees accountable for work performance, including performance affected by matters outside employees' control, held to interfere with management's rights under § 7106(a)(2)(A) and (B)). In addition, proposals that prevent management from holding employees accountable for the performance of assigned work do not constitute procedures under § 7106(b)(2) of the Statute. See, e.g., Patent Office Professional Assoc., 48 FLRA 129, 136 (1993) (POPA), petition for review denied, 47 F.3d 1217 (D.C. Cir. 1995). Because Proposal 9 would prevent the Agency from holding employees accountable for inclusion of a file reviewed by the Supervisory Auditor in the working papers package, it would not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. [n13] 

3.     Proposal 9 Does Not Constitute an Appropriate Arrangement within the Meaning of § 7106(b)(3) of the Statute

      The framework applied by the Authority in resolving whether a proposal is an appropriate arrangement under § 7106(b)(3) was established 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. See Patent Office Professional Assoc., 56 FLRA 69, 71 (2000). If the proposal is determined to be an arrangement for employees adversely affected by the exercise of a management right, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. The Authority makes this determination by weighing the "competing practical needs of employees and managers." NAGE, Local R14-87, 21 FLRA at 31-32.

      Even if it is assumed that the proposal constitutes an arrangement within the meaning of § 7106(b)(3), the proposal nevertheless would be inappropriate because it would excessively interfere with management's rights to direct employees and assign work. Specifically, although the proposal would benefit employees by preventing them from receiving lower appraisals for failure to maintain a complete working papers package, it completely precludes management from assigning that task to employees, thereby preventing it from assessing whether or not employees exercise initiative with their supervisors to preserve the integrity of their case files. We conclude that the burden placed by the proposal on the exercise of management's right to evaluate employee performance outweighs any benefit to employees of protection from lowered performance appraisals. Consequently, the proposal excessively interferes with management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) and is not an appropriate arrangement within the meaning of § 7106(b)(3). See, e.g., POPA, 48 FLRA at 137-38 (proposal precluding adverse evaluation of employee for failure to meet a particular performance standard if meeting the standard is dependent upon the action of another employee over whom the employee has no control held to excessively interfere with management's rights to direct employees and assign work).

      Accordingly, we find that Proposal 9 affects management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. We also find that the proposal is not a procedure under § 7106(b)(2) or an appropriate arrangement within the meaning of § 7106(b)(3). Thus, we find that Proposal 9 is not within the duty to bargain and will dismiss the petition for review as to the proposal. [n14] 

VI.     Order

      The petition for review as to Proposals 8 and 9 is dismissed. Proposals 1 and 10 are bargainable only at the election of the Agency.


File 1: Authority's Decision in 57 FLRA No. 43
File 2: Opinion of Member Wasserman


Footnote # 1 for 57 FLRA No. 43 - Authority's Decision

   The opinion of Member Wasserman, concurring in part and dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 43 - Authority's Decision

   Based on the Union's revised explanation of Proposal 2 as stated in its Petition for Review, and confirmed in the post-petition conference, the Agency no longer disputes the negotiability of that proposal. Consequently, we will not address Proposal 2. Additionally, the Union does not dispute the Agency's claim that it does not have a duty to bargain over Proposal 6 because it is covered by Article 31 of the parties' agreement. See Union Response at 5. Therefore, we will not address the negotiability of that proposal.


Footnote # 3 for 57 FLRA No. 43 - Authority's Decision

   The Agency notes that Proposal 1 has been stated by the Union in two different forms, but indicates that the difference between the two statements of the proposal does not affect its position with respect to the negotiability of the proposal. The text of Proposal 1 set forth here is the second of the two formulations of the proposal and is the version contained in the Union's Petition for Review.


Footnote # 4 for 57 FLRA No. 43 - Authority's Decision

   The Union does not claim that Proposals 1 and 10 constitute appropriate arrangements within the meaning of § 7106(b)(3) of the Statute.


Footnote # 5 for 57 FLRA No. 43 - Authority's Decision

   The first two sentences of Proposal 1 are not in dispute. However, the Union does not request severance of this proposal, or of any other proposal in dispute herein. Thus, the negotiability of the proposal as a whole turns on the meaning and effect of the last two sentences.


Footnote # 6 for 57 FLRA No. 43 - Authority's Decision

   As neither party requests that the Authority revise the existing framework for determining whether a proposal constitutes a procedure under § 7106(b)(2), we apply existing precedent. See NAGE, Locals R5-136 and R5-150, 55 FLRA 679, 680-81 (1999).


Footnote # 7 for 57 FLRA No. 43 - Authority's Decision

   The Union mentions, but does not argue, that the proposal concerns the technology of performing work. Because the Union's reference to technology is nothing more than a bare assertion, and the parties do not address that issue, we will not consider whether the proposal concerns a matter pertaining to technology within the meaning of § 7106(b)(1) of the Statute.


Footnote # 8 for 57 FLRA No. 43 - Authority's Decision

   The Authority has noted that its current test for determining whether a proposal concerns methods and means within the meaning of § 7106(b)(1) may no longer be appropriate in cases where the union, rather than the agency, contends that the proposal concerns methods and means. See, e.g., AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 453 n.10 (1999) (Council 236), petition for review denied mem., No. 99-1244 (D.C. Cir. 2000). As in Council 236, neither party in the instant proceeding has requested that the Authority reconsider its current test used to determine whether a proposal concerns the methods and means of performing work. Therefore, we will not address that issue.


Footnote # 9 for 57 FLRA No. 43 - Authority's Decision

   An Agency can agree to a proposal that requires it to bargain about permissive subjects, including § 7106(b)(1) matters. See, e.g., Social Security Administration, Baltimore, Md., 55 FLRA 1063, 1069 (1999) (SSA). Such an agreement is enforceable in arbitration. See, e.g., id. at 1068. See also United States Dep't of Defense, Defense Logistics Agency, Defense Distribution Center, New Cumberland, Pa., 55 FLRA 1303, 1306 (2000). However, contrary to the Union's claim, such agreement does not convert permissive matters into mandatory subjects under the Statute. See, e.g., National Air Traffic Controllers Association, Roche