American Federation of Government Employees, National Council of Field Labor Locals, Local 2139 (Union) and United States Department of Labor, Occupational Safety and Health Administration (Agency)

[ v57 p292 ]

57 FLRA No. 62

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL COUNCIL OF FIELD
LABOR LOCALS, LOCAL 2139
(Union)

and

UNITED STATES DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION
(Agency)

0-NG-2580

_____

DECISION AND ORDER ON
A NEGOTIABILITY ISSUE

June 22, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman 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 § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a proposal concerning the Agency's draft customer service policy. The Agency filed a statement of position and the Union filed a response. The Agency also filed a reply to the Union's response.

      For the reasons which follow, we find that the proposal is not negotiable and dismiss the petition for review.

II.     Background

      The Union submitted the proposal during negotiations over the Agency's draft revised OSHA customer service policy. [n2] The Union's proposal would substitute language found on page 3 of the Agency's current Public Service Standards, enacted in 1995, in place of the language of section IX of the Agency's draft customer service policy. [n3]  [ v57 p293 ]

III.     Proposal

In regard to the Policy, Section IX, OSHA Customer Service Principles remove paragraphs A, B, C, D, E, and F and replace with page three of the 1995 agreed upon document. The word courteous will not appear in the Policy.

IV.     Positions of the Parties

A.     Agency

      The Agency asserts that the proposal is contrary to management's rights to determine its mission and to direct employees and assign work. According to the Agency, the rights to direct employees and assign work encompass the power to define job duties, performance elements and the setting of standards for performance and conduct in the execution of its mission. The Agency maintains that proposals which have sought to restrict the application of similar performance standards have been found to be non-negotiable. In this regard, the Agency indicates that the draft policy establishes its expectations for its employees to meet when interacting with the Agency's customers. Consequently, the Agency claims that the Union's proposal interferes with its right to direct employees and assign work by seeking to substantively change the draft customer service policy, and therefore is outside the duty to bargain.

      In response to the Union's claim that the proposal constitutes an appropriate arrangement, the Agency asserts that the proposal has no language purporting to mitigate the effect of the customer service policy on bargaining unit employees. Instead, the Agency again maintains that the proposal aims to alter the substance of the draft customer service policy. [n4] 

B.     Union

      The Union first maintains that the proposal does not require the Agency to make any substantive changes to the draft customer service policy. Instead, the Union asserts that its draft language only changes the form and context of the draft customer service policy.

      The Union also claims that the draft customer service policy does not establish a critical performance element and, therefore, the Union has the right to negotiate over its substance. Additionally, the Union claims that it is not attempting to substitute its judgement for that of the Agency, as the draft customer service policy, by its terms, serves only as a general guide for behavior. Instead, the Union maintains that it is attempting to mitigate the effect of the draft customer service policy on employees.

      The Union asserts that the proposal constitutes an appropriate arrangement for employees affected by the draft change in policy. The Union claims that the draft policy, including the use of the words cooperative, professional and responsive, will have a significant impact on bargaining unit employees. In this regard, the Union believes that disgruntled OSHA customers will more frequently use the draft customer service policy as a means to attack the competence of Agency employees and the techniques that they use during their investigations.

      The Union next claims that the new policy will be used as a basis for disciplining employees. See 5 U.S.C. § 7503(a) (permits agencies to suspend employees, under certain circumstances, for 14 days or less for documented instances of discourteous conduct to the public). Finally, the Union is concerned about the physical safety of the affected bargaining unit employees. It argues that the draft policy will create a set of raised customer expectations. According to the Union, these raised expectations will lead to an increased likelihood of physical assaults against bargaining unit employees due to the raised expectations of customers.

      The Union asserts that its proposal does not excessively interfere with management rights under the Statute. In this regard, the Union maintains that the proposal preserves the Agency's goal of improving customer service, while ameliorating the effects of the new policy on employees.

V.     Meaning of the Proposal

      The plain wording of the proposal requires the Agency to retain the language of the 1995 Customer Service Standards. Additionally, the Union seeks to prohibit the Agency from using the term `courteous' in the draft customer service policy. [ v57 p294 ]

VI.     Analysis and Conclusions

A.     The proposal affects management's rights to direct employees and assign work.

      Management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to establish criteria governing employees' performance of their duties. See AFGE, Local 225, 56 FLRA 686, 687 (2000). Here, the Union seeks to negotiate over the language establishing the customer service standards that the Agency's employees are to meet when performing their assigned duties. The draft policy, then, concerns a criteria governing employee performance. Union proposals, such as the one at issue here, which seek to prevent management from changing the standards governing employee performance affect management's rights to direct employees and assign work. See id. at 687-88.

      The Union claims that its proposal is negotiable because it does not concern the establishment of a critical performance element. [n5] However, the rights to assign work and direct employees encompass the right to establish all criteria governing employee performance, even if those standards are not critical elements or performance standards [n6] as those terms are defined in connection with Chapter 43. See NTEU, 47 FLRA 370, 385 (1993) (quoting United States Dep't of Defense, Defense Fin. and Accounting Serv., Washington, D.C., 45 FLRA 910, 913 (1992)). See also AFGE, Local 1709, 56 FLRA 549 (2000) (proposal to negotiate over the substance of criteria governing work performance not negotiable, even though the criteria were not performance standards within the meaning of Chapter 43).

      The Union also claims that it is not attempting to change any of the basic elements of the customer service policy. Instead, the Union argues that it is merely attempting to negotiate over the form and context of the draft policy. The Union's proposal, however, on its face, seeks to substantively alter the standards for the conduct of duties established by the Agency, thereby affecting management's rights to direct employees and assign work. Accordingly, we find that the proposal affects management's rights to direct employees and assign work.

B.     The proposal does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.

      In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). 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 also United States Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Serv. v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. The claimed arrangement must also be sufficiently "tailored" to compensate only those employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., NAGE, Local R1-100, 39 FLRA 762, 766 (1991).

      If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 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. Id.

      Assuming without deciding that the proposal constitutes a sufficiently tailored arrangement, we conclude that it excessively interferes with management's rights to direct employees and assign work. In this regard, the Union's proposal will benefit certain employees by preventing the Agency from changing the customer service policy to include language that could negatively impact employees' appraisals or subject them to disciplinary action. However, the Union's proposal will also severely restrict the Agency's ability to direct employees and assign work. In fact, the Union's proposal completely precludes the Agency from using the language that it wishes to use in the customer service policy, including the use of the word courteous. We conclude that this complete preclusion outweighs the benefits to employees of using the Union's offered language. See AFGE, Nat'l Veterans Admin. Council, 40 FLRA 1052, [ v57 p295 ] 1056 (1991). [n7] Therefore, the proposal is not within the duty to bargain under § 7106(b)(3) of the Statute.

VII.     Order

      The Union's petition for review is dismissed.


APPENDIX

1.     Section IX of the Agency's draft customer service policy reads as follows:

OSHA's Customer Service Principles. Consistent with our Customer Service Policy, OSHA has developed the following customer service principles, to serve as a general guide of conduct towards customers, stakeholders and fellow OSHA staff. Each OSHA employee shall continue:

A     Being Courteous, Respectful and Cooperative. We will be positive, polite, considerate and respectful towards others.
B     Being Professional. We will be knowledgeable, technically proficient and accurate.
C     Being Responsive. We will give prompt and willing service.
D     Taking the Initiative. We will recognize what needs to be done and do it.
E     Having Integrity. We will be honest and reliable.
F     Delivering Quality Services and Products. We will meet or exceed customer expectations.

2.     Page 3 of the 1995 Customer Service Plan contains the following language:                    

Employers Can Expect OSHA To:

  • Help them identify and control workplace hazards by offering a choice between partnership and traditional enforcement.
     
    . . . .
  • Focus agency inspections on the most significant hazards in the most dangerous workplaces.
     
    . . . .
  • Be courteous and professional during inspections.
     
    . . . .

Employees Can Expect OSHA To:

  • Promote employee participation in the development and implementation of worksite safety and health programs and in OSHA interventions such as workplace inspections and consultation visits.
     
    . . . .
  • Respond promptly to employees' requests for correction of serious hazards at their workplaces.
     
    . . . .
  • Advise employees of their safety and health rights and responsibilities, and complete investigations within 90 days for those employees who believe they have been discriminated against for exercising their rights to request or participate in inspections.
     
    . . . .

The General Public Can Expect OSHA To:

  • Make regulations and interpretations user-friendly.
     
    . . . .
  • Work in partnership with business and labor to develop new standards that make real sense to real people.
     
    . . . .
  • Expand training opportunities for private sector employees through regional education centers and targeted training grants.
     
    . . . .
  • Provide better access to OSHA information.
     
    . . . . [ v57 p296 ]

Dissenting Opinion of Member Wasserman:

      I write separately because, in my view, the proposal is fully negotiable under section 7106(b)(3) of the Statute.

      Consistent with the precedent cited in the majority opinion, I would find that the proposal is a tailored arrangement. The intent of the Agency's revised customer service policy is to hold employees accountable to a modified set of performance expectations. By requiring the Agency to retain a portion of the pre-existing policy, the proposal would help ensure that employees are not adversely affected by being held to different standards of performance. As such, the proposal is primarily aimed at those employees whose performance would not meet the Agency's modified requirements and against whom the Agency could take a performance-based action. See NFFE, Local 1904, 57 FLRA 28 (2001) (proposal submitted in response to change in patient accountability policy, under which nurses could face increased potential for lowered performance appraisals, found to be a tailored arrangement).

      I would also find that the arrangement is appropriate because, on balance, the benefits to employees outweigh the intrusion on management's rights. As noted, the proposal would preserve part of the pre-existing policy that, as far as the record reveals, has worked effectively since 1995. A finding that the proposal is negotiable would not prevent the Agency from taking action against any employee who fails to satisfy the existing requirements. Indeed, there is no claim that management has been unable to do so consistent with the requirements of the previous policy. Because the Agency will retain a customer service policy, this case does not present a situation where there is a total ban on an agency's ability to manage. See, e.g., AFGE, Local 1164, 55 FLRA 999, 1003-04 (1999) (proposal to retain subject matter specialists, rather than generalists as set forth in agency policy, not appropriate as it would completely preclude agency from exercising its rights). My colleagues' concern that management would be precluded from using language it wishes to use in its customer service policy, while true, simply does not persuade me that the proposal excessively interferes with management's rights. Therefore, I respectfully dissent.



Footnote # 1 for 57 FLRA No. 62 - Authority's Decision

   Member Wasserman's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 62 - Authority's Decision

   The pertinent portions of the draft customer service policy are set forth in the Appendix.


Footnote # 3 for 57 FLRA No. 62 - Authority's Decision

   A summary of the 1995 Public Service Standards is set forth in the Appendix.


Footnote # 4 for 57 FLRA No. 62 - Authority's Decision

   The Agency claims that its draft policy will have only a de minimis impact on bargaining unit employees. While this argument could form the basis of a bargaining obligation dispute, as that term is used in 5 C.F.R. § 2424.2(a)(2), the Agency also indicated in its submission to the Authority that there was no such dispute. Therefore, we will not address that issue.


Footnote # 5 for 57 FLRA No. 62 - Authority's Decision

   5 C.F.R. § 430.203 defines a critical element as a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee's overall performance is unacceptable.


Footnote # 6 for 57 FLRA No. 62 - Authority's Decision

   A performance standard is the management-approved expression of the performance threshold(s), requirement(s), or expectation(s) that must be met to be appraised at a particular level of performance. A performance standard may include, but is not limited to, quality, quantity, timeliness and manner of performance. 5 C.F.R. § 430.203.


Footnote # 7 for 57 FLRA No. 62 - Authority's Decision

   The Agency also asserts that the proposal interferes with management's right to determine its mission. The Agency, however, makes no arguments in this connection. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See, e.g., AFSCME Local 910, 53 FLRA 1334, 1342 (1998). As the Agency has not made any arguments in support of its claim, we summar