National Treasury Employees Union (Union) and Internal Revenue Service (Agency) 

 8 FLRA No. 5
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. 0-NG-331
 
                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),
 AND RAISES ISSUES CONCERNING THE NEGOTIABILITY OF THE FOLLOWING TWO
 UNION PROPOSALS:
 
    1.  EVALUATIVE CONCLUSIONS BASED ON THE STATISTICAL DATA GENERATED BY
 THE ROCKWELL-COLLINS
 
    ACD-V SYSTEM MUST BE ACCOMPANIED BY EVIDENCE GATHERED BY OTHER
 EVALUATIVE TECHNIQUES
 
    I.E. OBSERVATION OF EMPLOYEE BEHAVIOR.  THIS EVIDENCE MUST BE
 SUFFICIENT TO LEAVE NO
 
    REASONABLE DOUBT THAT THE STATISTICAL DATA DOES INDEED REPRESENT
 INEFFICIENT OR IMPROPER
 
    ACTIVITY BY THE EMPLOYEE.
 
    2.  EVALUATIVE CONCLUSIONS BASED ON THE STATISTICAL DATA GENERATED BY
 THE DORMS SYSTEM MUST
 
    BE ACCOMPANIED BY EVIDENCE GATHERED BY OTHER EVALUATIVE TECHNIQUES
 I.E. OBSERVATION OF
 
    EMPLOYEE BEHAVIOR.  THIS OTHER EVIDENCE MUST BE SUFFICIENT TO LEAVE
 NO REASONABLE DOUBT THAT
 
    THE STATISTICAL DATA DOES INDEED REPRESENT INEFFICIENT OR IMPROPER
 ACTIVITY BY THE EMPLOYEE.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, /1/ THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
    THE RECORD INDICATES THAT THE DISPUTED PROPOSALS WERE SUBMITTED BY
 THE UNION IN RESPONSE TO THE AGENCY'S NOTICE OF INTENT TO INITIATE A
 TWO-YEAR TEST OF A WORK MEASUREMENT SYSTEM (DORMS) UNDER WHICH
 EMPLOYEES
 ARE REQUIRED TO RECORD THE NUMBER OF HOURS DEVOTED TO A SPECIFIC
 PROJECT;  AND TO INSTALL A NEW SOFTWARE SYSTEM (ROCKWELL-COLLINS) WHICH
 IS CAPABLE OF GATHERING CERTAIN DATA WITH RESPECT TO THE EMPLOYEES'
 PERFORMANCE OF WORK-RELATED TELEPHONE COMMUNICATIONS.
 
    IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980), APPEAL DOCKETED, NO.
 80-1895 (D.C. CIR. AUG. 4, 1980), THE AUTHORITY FOUND THAT THE RIGHTS TO
 DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A) OF THE STATUTE
 INCLUDE THE AUTHORITY TO ESTABLISH CRITICAL ELEMENTS AND PERFORMANCE
 STANDARDS.  HOWEVER, AS THE AUTHORITY HAS CONSISTENTLY EMPHASIZED, AN
 AGENCY HAS A DUTY TO BARGAIN UNDER SECTION 7106(B)(2) ON THE
 "PROCEDURES" WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING
 SECTION 7106(A) RIGHTS EXCEPT TO THE EXTENT THAT THE AGENCY WOULD BE
 PREVENTED FROM ACTING AT ALL.  SEE, E.G., 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(1979),
 ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
 AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981).  ACCORDINGLY, TO THE EXTENT
 CONSISTENT WITH LAW AND REGULATION, THE PROCEDURAL CONTEXT OF
 PERFORMANCE EVALUATION IS SUBJECT TO BARGAINING.  BUREAU OF THE PUBLIC
 DEBT, SUPRA, AT 12 OF DECISION. SEE ALSO NATIONAL TREASURY EMPLOYEES
 UNION AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, 7 FLRA
 NO.  35(1981).
 
    IN THE INSTANT CASE, THE AUTHORITY CONCLUDES THAT THE DISPUTED
 PROPOSALS CONSTITUTE NEGOTIABLE PROCEDURES RELATED TO PERFORMANCE
 EVALUATION.  THUS, CONTRARY TO THE AGENCY'S CONTENTIONS, THE LANGUAGE OF
 THE UNION'S PROPOSALS WOULD NEITHER PRECLUDE MANAGEMENT FROM USING THE
 STATISTICAL DATA COLLECTED BY THE DORMS AND ROCKWELL-COLLINS SYSTEM NOR
 INTERFERE WITH MANAGEMENT'S RIGHT TO TAKE PERSONNEL ACTIONS BASED ON
 SUCH STATISTICAL DATA NOR INTERFERE IN ANY OTHER MANNER WITH
 MANAGEMENT'S RIGHTS UNDER THE STATUTE.  RATHER, CONSISTENT WITH THE
 UNION'S DECLARED INTENT, THE DISPUTED PROPOSALS WOULD MERELY REQUIRE THE
 AGENCY TO CONFIRM BY PERSONAL OBSERVATION THE VALIDITY OF THE
 STATISTICAL DATA TO BE USED IN EVALUATING THE PERFORMANCE OF UNIT
 EMPLOYEES ACCORDING TO THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
 PREVIOUSLY ESTABLISHED BY THE AGENCY.  IN THIS REGARD, THE UNION STATES
 AND THE AUTHORITY FINDS THAT THE PROPOSAL "DOES NOT SEEK TO MODIFY OR
 CLARIFY THE QUANTUM OF PROOF THAT IS REQUIRED IN ADVERSE ACTIONS,
 UNACCEPTABLE PERFORMANCE ACTIONS (5 U.S.C. 7701(C)) OR ANY OTHER
 PERSONNEL ACTION." THEREFORE, THE PROPOSALS ARE WITHIN THE DUTY TO
 BARGAIN.
 
    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 UNION PROPOSALS.  /2/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AGENCY'S REQUEST TO FILE A SUPPLEMENT TO ITS STATEMENT OF
 POSITION IS DENIED PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2424.8).  THEREFORE, THE AUTHORITY HAS NOT
 CONSIDERED SUCH SUPPLEMENT.
 
    /2/ IN DECIDING THAT THE SUBJECT PROPOSALS ARE WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.