11:0001(01)NG DIGEST HEADINGS STATUTE SUBJECT MATTER INDEX ENTRIES DIGEST NOTES DECISION AND ORDER ON NEGOTIABILITY ISSUES Union Proposal 1 Union -- 1984 FLRAdec NG


[ v11 p01 ]
11:0001(01)NG
The decision of the Authority follows:


15 FLRA NO. 1

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1708

     Union

     and

MILITARY OCEAN TERMINAL,
SUNNY POINT, SOUTHPORT,
NORTH CAROLINA

     Agency

Case No. 0-NG-580

 

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and presents issues relating to the negotiability of three Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal 1

There shall be no secret studies bearing on performance standards. All studies conducted by the employer will be conducted on average workers under normal working conditions. The Union shall be allowed to have an observer present in the development or revision of all measures of performance and studies. All information derived from such work studies will be provided to the union within five (5) days of completion of the study. The Union shall have the right to conduct independent time studies during duty hours in addition to receiving all documents and data used in developing performance standards. [ v11 p 3 ]

The first two sentences of Union Proposal 1 herein are identical to the provisions of Union Proposal 4 in American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981). In FDIC, the Authority found that those provisions did not prevent the Agency from establishing particular performance standards pursuant to its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. For the reasons set forth in FDIC, the Authority finds that the Agency's contention that the first two sentences of Union Proposal 1 interfere with its rights to direct employees and assign work through the establishment of performance standards must be set aside.

Nor can the Agency's additional argument that these particular provisions interfere with its right to determine methods and means of performing work be sustained. While the Agency asserts that assessment of the quality and quantity of work performed by its employees is an integral and essential part of its mission, which it describes as the movement of freight for the military services, it has not shown how negotiation of the procedures used to develop performance standards would directly interfere with its ability to determine the methods or means of moving freight for the military services. Rather, it has merely shown an incidental and indirect relationship to the performance of its work. Clearly, the record does not establish that the subject studies constitute an instrument used for the accomplishing or the furthering of the performance of the work of the Agency. Cf. National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979) (the name plates worn by Customs officers constitute an instrument used to accomplish that aspect of the work of a Customs officer which involves contact with the public). For the foregoing reasons the Authority finds that the first two sentences of the proposal are within the duty to bargain.

The Union has not explained what is contemplated by the third sentence of the proposal. The Agency contends that this sentence would require Union involvement in internal management deliberations regarding the determination of performance standards. This interpretation is compatible with the terms of the proposal taken on its face and therefore is adopted for purposes of this decision. In this regard the proposal appears, among other things, to create a requirement that the Union be allowed to be present at management proceedings relating to the development and revision of performance standards.

The establishment of performance standards is an exercise of management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct its employees and assign work. National Treasury Employees 

[ v11 p  4 ] Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), enf'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Inasmuch as the third sentence of the proposal would require the Union's involvement in managerial deliberations and discussions which are part of the decision-making process directly relating to the exercise of management rights, it is to the same effect as Union Proposal 3 discussed in National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) enf'd sub nom. National Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). For the reasons expressed in Homestead Air Force Base, the Authority finds that the third sentence of the proposal would directly interfere with management's rights under section 7106(a) of the Statute and is, therefore, not within the duty to bargain.

The fourth sentence of the proposal is substantially identical to Union Proposal 5 addressed in FDIC (cited earlier herein). For the reasons stated in FDIC, and contrary to the Agency contentions that it would interfere with its rights to assign employees, assign work and determine the methods and means of performing work, the Authority finds that the fourth sentence is within the duty to bargain.

Union Proposal 2

Production studies or goals shall not be translated into performance standards (e.g., work units per person) unless the following conditions are fully satisfied:

(1) The work performed is repetitive and capable of being done uniformly by all workers in the unit being measured.

(2) Job content is constant throughout the appraisal period.

(3) The method of operation, service and work unit produced is capable of being objectively, reliably, and accurately measured.

(4) The work units measured are equivalent.

The Union does not explain what is specifically meant by the proposal, arguing only that it is intended to establish a mutually acceptable procedure to be employed by the Agency in establishing and administering its performance appraisal system. However, the proposal, by its plain language, would prevent the Agency from establishing performance standards based on production goals unless [ v11 p5 ] the conditions described in the proposal exist. Thus, the Union seeks to negotiate the substance of performance standards by proposing limitations on the inclusion of certain matters in performance standards. In this regard the proposal is to the same effect as those addressed in National Federation of Federal Employees and U.S. Army Armament Research and Development