American Federation of Government Employees, Local 2849, AFL-CIO (Union) and Office of Personnel Management, New York Regional Office (Agency)
[ v07 p571 ]
07:0571(88)NG
The decision of the Authority follows:
7 FLRA No. 88
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2849
Union
and
OFFICE OF PERSONNEL MANAGEMENT,
NEW YORK REGIONAL OFFICE
Agency
Case No. O-NG-258
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7101-7135). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF FOUR
UNION PROPOSALS.
UNION PROPOSAL 1
EACH SUPERVISOR/MANAGER WILL, AFTER MEETING AND CONFERRING, IDENTIFY
IN WRITING THOSE PERFORMANCE ELEMENTS, CRITICAL ELEMENTS, AND
PERFORMANCE STANDARDS FOR EACH EMPLOYEE UNDER THEIR SUPERVISION.
STANDARDS AND ELEMENTS SO IDENTIFIED WILL BE CONSISTENT WITH THE DUTIES
AND RESPONSIBILITIES CONTAINED IN PROPERLY CLASSIFIED POSITION
DESCRIPTIONS. ALL STUDIES CONDUCTED BY THE EMPLOYER WILL BE CONDUCTED
ON TYPICAL WORKERS UNDER NORMAL WORKING CONDITIONS. THE UNION SHALL
PARTICIPATE ON AN EQUAL BASIS IN THE DEVELOPMENT OR REVISION OF ALL
MEASURES OF PERFORMANCE AND STUDIES INCLUDING BUT NOT LIMITED TO FORMAL
NEGOTIATIONS (SIC) WILL BE CONVENED. ANY IMPASSES WILL BE REFERRED TO
THE FEDERAL SERVICE IMPASSES PANEL FOR RESOLUTION. ALL INFORMATION
INCLUDING ANY OBJECTIVES TO DATA DERIVED FROM WORK STUDIES WILL BE
PROVIDED TO THE UNION WITHIN FIVE DAYS OF ISSUANCE.
(ONLY THE UNDERSCORED PORTIONS OF THIS PROPOSAL HAVE BEEN ALLEGED BY
THE AGENCY TO BE OUTSIDE THE DUTY TO BARGAIN.)
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTIONS OF THE
UNION'S PROPOSAL ARE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS
ALLEGED BY THE AGENCY, ARE INCONSISTENT WITH THE STATUTE.
OPINION
CONCLUSION AND ORDER: INSOFAR AS THE PROPOSAL REQUIRES NEGOTIATION
ON THE ESTABLISHMENT AND CONTENT OF CRITICAL ELEMENTS AND PERFORMANCE
STANDARDS, IT IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
PETITION FOR REVIEW OF THE "MEET AND CONFER" PORTION OF THE FIRST
SENTENCE OF THE PROPOSAL AND OF THE ENTIRE FOURTH SENTENCE OF THE
PROPOSAL BE, AND IT HEREBY IS, DISMISSED. THE SECOND SENTENCE OF THE
PROPOSAL, HOWEVER, CONSTITUTES A PROCEDURE WHICH MANAGEMENT WILL
OBSERVE
IN THE DEVELOPMENT OF PERFORMANCE STANDARDS, AND, THERFORE, IS WITHIN
THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING THE SECOND SENTENCE OF THE PROPOSAL. /1/
REASONS: THE AGENCY STATES AND THE UNION TACITLY CONCEDES THAT THE
"MEETING AND CONFERRING" LANGUAGE IN THE UNDERSCORED PORTION OF THE
FIRST SENTENCE OF THE PROPOSAL WOULD REQUIRE THAT PARTICULAR PERFORMANCE
STANDARDS AND CRITICAL ELEMENTS BE ESTABLISHED THROUGH NEGOTIATIONS.
CONSEQUENTLY, THIS PORTION OF THE PROPOSAL BEARS NO MATERIAL DIFFERENCE
FROM THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN NATIONAL TREASURY
EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC
DEBT, 3 FLRA NO. 119(1980) AND HELD TO BE OUTSIDE THE DUTY TO BARGAIN
UNDER THE STATUTE. IN THAT CASE, THE AUTHORITY DETERMINED THAT A
PROPOSAL TO ESTABLISH A PARTICULAR CRITICAL ELEMENT AND A PARTICULAR
PERFORMANCE STANDARD FOR JOB RETENTION WAS INCONSISTENT WITH
MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE. /2/ THEREFORE, FOR THE REASONS
FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT, THE "MEETING AND
CONFERRING" PORTION OF THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD TO
BE OUTSIDE THE DUTY TO BARGAIN.
SIMILARLY, THE FOURTH SENTENCE OF THE PROPOSAL WOULD REQUIRE FORMAL
NEGOTIATIONS CONCERNING MEASURES OF PERFORMANCE (I.E., PERFORMANCE
STANDARDS) TO BE ESTABLISHED FOR EMPLOYEES IN THE BARGAINING UNIT. THE
PROPOSAL IS, IN LANGUAGE AND EFFECT, VIRTUALLY IDENTICAL TO A PROPOSAL
IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND
DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT
CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981), WHICH WAS HELD TO
BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF
THE STATUTE. THEREFORE, FOR THE REASONS SET FORTH IN THAT DECISION, THE
FOURTH SENTENCE OF THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD TO BE
OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
STATUTE.
THE SECOND SENTENCE OF THE PROPOSAL WOULD REQUIRE PERFORMANCE
STANDARDS AND CRITICAL ELEMENTS TO BE CONSISTENT WITH THE DUTIES AND
RESPONSIBILITIES CONTAINED IN A PROPERLY CLASSIFIED POSITION
DESCRIPTION. A POSITION DESCRIPTION REFLECTS THE DUTIES AND
RESPONSIBILITIES ASSIGNED TO A POSITION; IN OTHER WORDS, IT MERELY
DESCRIBES WORK WHICH IT IS EXPECTED WOULD BE ASSIGNED TO AN EMPLOYEE BUT
IT IS NOT, IN ITSELF, AN ASSIGNMENT OF WORK. MOREOVER, WHEN PERFORMANCE
STANDARDS ARE ESTABLISHED, A POSITION DESCRIPTION MAY BE REVISED, IF
NECESSARY. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE,
FORT DIX, NEW JERSEY, 2 FLRA 152, 159-61(1979), ENFORCED AS TO OTHER
MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981).
THUS, THIS PROPOSAL, BY REQUIRING CONSISTENCY BETWEEN POSITION
DESCRIPTIONS ON THE ONE HAND, AND CRITICAL ELEMENTS IDENTIFIED AND
PERFORMANCE STANDARDS ESTABLISHED FOR A POSITION ON THE OTHER HAND,
WOULD NOT LIMIT THE AGENCY'S CHOICE OF CRITICAL ELEMENTS OR PERFORMANCE
STANDARDS. RATHER, THE AGENCY COULD ALWAYS ACHIEVE CONSISTENCY AS
REQUIRED BY THE PROPOSAL MERELY BY AMENDING THE POSITION DESCRIPTION.
ACCORDINGLY, UNDER THE PROPOSAL, THE RIGHT OF THE AGENCY TO ASSIGN
WORK AND TO DIRECT EMPLOYEES THROUGH ESTABLISHING SUCH ELEMENTS AND
STANDARDS REMAINS UNAFFECTED, SUBJECT TO THE PROCEDURAL REQUIREMENT THAT
THE POSITION DESCRIPTION INVOLVED ACCURATELY REFLECT THE WORK ASSIGNED.
THE SECOND SENTENCE OF THE PROPOSAL, THEREFORE, IS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE. /3/
UNION PROPOSAL 2
ANY DISPUTES UNDER THIS ARTICLE MAY BE RESOLVED UNDER THE NEGOTIATED
PROCEDURE INCLUDING BUT NOT LIMITED TO:
(1) CHALLENGES TO THE CRITICAL ELEMENTS OF A POSITION.
(2) THE MEASURES OF PERFORMANCE AS SET FORTH IN PERFORMANCE
STANDARDS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE
DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY THE AGENCY, IS
INCONSISTENT WITH THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE
UNION'S PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE PROPOSAL HERE IN DISPUTE, WHICH WOULD EXTEND THE
COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO INCLUDE DIRECT
CHALLENGES TO THE AGENCY'S IDENTIFICATION OF THE CRITICAL ELEMENTS AND
ESTABLISHMENT OF PERFORMANCE STANDARDS OF A POSITION, IS IDENTICAL IN
LANGUAGE AND EFFECT TO A PORTION OF A UNION PROPOSAL WHICH WAS BEFORE
THE AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY
DEVELOPMENT CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981), AND
WHICH WAS HELD TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE (AT PP. 8-11 OF THE DECISION).
THEREFORE, FOR THE REASONS SET FORTH IN DETAIL IN SAINT LAWRENCE SEAWAY,
THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD TO BE OUTSIDE THE DUTY TO
BARGAIN UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.
UNION PROPOSAL 3
EMPLOYEES AND/OR UNION WILL JOINTLY IDENTIFY THOSE PERFORMANCE
ELEMENTS, CRITICAL ELEMENTS,
AND PERFORMANCE STANDARDS WHICH THEY CONSIDER CONSISTENT WITH THEIR
DUTIES AND
RESPONSIBILITIES. STANDARDS OF PERFORMANCE WILL MAKE ALLOWANCES FOR
FACTORS BEYOND THE
CONTROL OF THE EMPLOYEE.
(ONLY THE UNDERSCORED PORTION OF THIS PROPOSAL HAS BEEN ALLEGED BY
THE AGENCY TO BE OUTSIDE THE DUTY TO BARGAIN.)
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THE
UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN OR, AS ALLEGED BY THE
AGENCY, IS INCONSISTENT WITH THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE UNDERSCORED PORTION OF THE PROPOSAL IS NOT
INCONSISTENT WITH THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10
OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING THE UNDERSCORED PORTION OF THE PROPOSAL.
/4/
REASONS: IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA
NO. 120(1980), THE AUTHORITY HELD THAT A PROPOSAL REGARDING GENERAL
CRITERIA FOR THE APPLICATION OF PERFORMANCE STANDARDS WHICH MANAGEMENT
HAD ESTABLISHED WAS WITHIN THE DUTY TO BARGAIN. MORE SPECIFICALLY, THE
AUTHORITY HELD THAT THE PROPOSED "FAIR AND EQUITABLE" CRITERION SIMPLY
ESTABLISHED A GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE
APPLICATION OF PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT MAY
SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES
THAT HE HAS BEEN ADVERSELY AFFECTED BY THE APPLICATION OF SUCH
PERFORMANCE STANDARDS.
SIMILARLY, THE PRESENT PROPOSAL WOULD NOT IMPOSE ON THE AGENCY A
PARTICULAR MANDATE WHICH WOULD AFFECT THE QUANTITY, QUALITY, OR
TIMELINESS OF WORK PRODUCTION. THAT IS, THE PROPOSAL WOULD PROVIDE A
GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF
PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT MAY SUBSEQUENTLY BE
EVALUATED IN A GRIEVANCE. SUCH REVIEW BY AN ARBITRATOR WOULD NOT RESULT
IN THE SUBSTITUTION OF THE ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY;
RATHER, IT WOULD SIMPLY DETERMINE WHETHER THE PERFORMANCE STANDARD
ESTABLISHED BY MANAGEMENT, AS APPLIED TO THE GRIEVANT, MADE ALLOWANCES
FOR FACTORS BEYOND THE GRIEVANT'S CONTROL, AS REQUIRED BY THE PROPOSAL.
ACCORDINGLY, FOR THE REASONS SET FORTH IN GREATER DETAIL IN AFGE, LOCAL
32, SUPRA, THE PROPOSAL HERE IS NEGOTIABLE UNDER SECTION 7106(B)(3) OF
THE STATUTE SINCE IT DEALS WITH APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
ADVERSELY AFFECTED BY THE EXERCISE OF A MANAGEMENT RIGHT. /5/
UNION PROPOSAL 4
OPEN AND FRANK DISCUSSIONS BETWEEN SUPERVISOR (SIC) EMPLOYEES AND/OR
UNION CONCERNING
ELEMENTS AND STANDARDS IS ENCOURAGED AND AN OPPORTUNITY FOR SUCH
DISCUSSIONS WILL BE AFFORDED
EMPLOYEES BEFORE FINAL PERFORMANCE ELEMENTS AND STANDARDS ARE AGREED
TO.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE
DUTY TO BARGAIN OR, AS ALLEGED BY THE AGENCY, IS INCONSISTENT WITH THE
STATUTE.
OPINION
CONCLUSION AND ORDER: INSOFAR AS THE PROPOSAL REQUIRES NEGOTIATION
ON THE ESTABLISHMENT AND CONTENT OF CRITICAL ELEMENTS AND PERFORMANCE
STANDARDS, IT IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
PETITION FOR REVIEW OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: ON ITS FACE, THE PROPOSAL WOULD REQUIRE PERFORMANCE
STANDARDS AND CRITICAL ELEMENTS TO BE "AGREED TO." CONSEQUENTLY, THE
UNION'S PROPOSAL HERE BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL
WHICH WAS HELD TO BE OUTSIDE THE DUTY TO BARGAIN IN NATIONAL TREASURY
EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC
DEBT, 3 FLRA NO. 119(1980). SINCE THE INSTANT DISPUTED PROPOSAL, LIKE
THE ONE IN BUREAU OF THE PUBLIC DEBT, WOULD REQUIRE PERFORMANCE
STANDARDS AND CRITICAL ELEMENTS THEMSELVES TO BE BARGAINED OVER AND
"AGREED TO," IT MUST ALSO BE HELD TO BE NONNEGOTIABLE FOR THE REASONS
FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT.
ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ IN DECIDING THAT THE ABOVE IDENTIFIED PORTION OF THE PROPOSAL IS
WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS
MERITS.
/2/ SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND, REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER
DISCIPLINARY ACTION AGAINST SUCH EMPLOYEES;
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO DETERMINE THE PERSONNEL BY WHICH AGENCY
OPERATIONS SHALL BE CONDUCTED(.)
/3/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY AUTHORITY UNDER THIS SECTION(.)
/4/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
/5/ SECTION 7106(B)(3) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATION--
. . . .
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT
OFFICIALS.