14:0408(64)NG - AFGE Local 1395 and SSA, Great Lakes Program Center, Chicago, IL -- 1984 FLRAdec NG
[ v14 p408 ]
14:0408(64)NG
The decision of the Authority follows:
14 FLRA No. 64
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1395
Union
and
SOCIAL SECURITY ADMINISTRATION,
GREAT LAKES PROGRAM CENTER,
CHICAGO, ILLINOIS
Agency
Case No. O-NG-394
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 raises issues
concerning the negotiability of five Union proposals. Union Proposals 1
and 5 are set forth in the Appendix, and Union Proposals 2, 3, and 4 are
set forth in the text. Upon careful consideration of the entire record,
including the parties' contentions, the Authority makes the following
determinations.
The Agency's initial claim that under Authority precedent, see
Association of Civilian Technicians, Alabama ACT and State of Alabama
National Guard, 2 FLRA 314 (1979), the matters proposed are not
sufficiently specific and delimited to warrant review is not persuasive.
The specific proposals in dispute were attached to the petition for
review and, thus, are properly before the Authority. Therefore, the
Agency's motion to dismiss the Union's appeal is denied. See American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
Service, 11 FLRA No. 113 (1983).
Union Proposal 1 provides for a joint labor-management committee to
develop performance expectations for benefit authorizer trainees and
claims authorizer trainees, establishes interim quantitative and
qualitative standards for those positions, and sets forth certain
principles governing the implementation of the standards. The portion
of Union Proposal 1 providing for a joint labor-management committee to
"develop" performance expectations for the specified positions would
require Union participation in determining the content of those
standards. In this regard, it is well established that the
determination of the content of performance standards is an exercise of
management's rights to direct employees and assign work under Section
7106(a)(2)(A) and (B) of the Statute. /1/ See National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees
Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir.
1982); National Treasury Employees Union and NTEU Chapters 153, 161 and
183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983). It is
equally well established that union participation in the exercise of
management's rights through membership on joint labor-management
committees established to take action pursuant to those rights directly
interferes therewith, contrary to section 7106 of the Statute. See
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 No. 105 (1981), enforced sub nom.
National Federation of Federal Employees v. Federal Labor Relations
Authority, 681 F.2d 886 (D.C. Cir. 1982); National Federation of
Federal Employees, Local 1431 and Veterans Administration Medical
Center, East Orange, New Jersey, 9 FLRA No. 139 (1982). /2/ Therefore,
by providing for the Union jointly to determine with management the
content of certain performance standards, Union Proposal 1 would
directly interfere with management's rights to direct employees and
assign work and is outside the duty to bargain. Additionally, by
providing that disputes within the joint labor-management committee as
to the content of performance standards shall be submitted to
arbitration for resolution, this portion of Union Proposal 1 conflicts
with the Authority's holding 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), affirmed sub nom. American Federation of Government
Employees, AFL-CIO, Local 1968 v. Federal Labor Relations Authority, 691
F.2d 565 (D.C. Cir. 1982), cert. denied . . . U.S. . . ., 103 S.Ct. 2085
(1983), wherein it was determined that critical elements and performance
standards could not be made subject to arbitral review.
The portion of Union Proposal 1 which sets forth standards of
productivity for claims authorizer and benefit authorizer trainees in
terms of numbers of cases and accuracy of result likewise would
establish the substance of performance standards for those positions.
As indicated above, the Authority held in National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
768 (1980), affirmed sub nom. National Treasury Employees Union v.
Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), that a
proposal establishing the content of performance standards for job
retention was outside the duty to bargain in that it would directly
interfere with management's rights to direct employees and assign work
under section 7106(a)(2)(A) and (B) of the Statute. Since the portion
of Union Proposal 1 under consideration here similarly would establish
the content of performance standards, it is, for the reasons more fully
stated in Bureau of the Public Debt, outside the duty to bargain. The
Union, however, seeks to distinguish the present proposal from the one
at issue in Bureau of the Public Debt. In this connection, the Union
argues that the proposal herein is not concerned with either job
retention standards or any standards which are part of a performance
appraisal system established pursuant to chapter 43 of title 5 of the
United States Code. The Authority finds that the former distinction as
to retention standards is not dispositive, see National Treasury
Employees Union and U.S. Nuclear Regulatory Commission, 13 FLRA No. 49
(1983), and the second, as to chapter 43 of title 5, is inapposite as to
a decision based solely on section 7106 of the Statute.
Finally, the portion of Union Proposal 1 prescribing the levels of
performance which are sufficient to qualify employees for promotion or
to render their performance unacceptable has the same effect as the
proposal at issue in American Federation of State, County and Municipal
Employees, AFL-CIO, Local 26 and U.S. Department of Justice, 13 FLRA No.
96 (1984). In that case, the Authority determined that the portion of a
proposal which would establish the levels of performance in individual
job elements necessary to the achievement of a given overall rating in
the evaluation of an employee's performance is an exercise of
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. In the instant case, it appears
that Union Proposal 1 would, among other things, similarly prescribe the
levels of performance that management must accept, in evaluating an
employee's performance, which would support an overall finding of
unacceptable performance. Thus, Union Proposal 1, for the reasons more
fully set forth in the Authority's Department of Justice decision,
likewise would directly interfere with management's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute and is outside the duty to bargain. /3/
Union Proposal 2
Claims instructors who are alleged to be unsuitable for the
position of instructor shall have the right to contest the
decision through the grievance procedure and be retained in the
position until the grievance procedure is completed. They shall
be if unsatisfactory returned to the claims authorizer position.
Union Proposal 3
Benefit authorizer instructors who are performing
unsatisfactorily will be given an opportunity to be reassigned to
another GS-9 position.
Union Proposal 2 would require management to reassign to the claims
authorizer position an employee who is found to be performing
unsatisfactorily as a claims instructor. In this regard, Union Proposal
2 has the same effect as a portion of Union Proposal 1 in American
Federation of Government Employees, Local 1760 and Department of Health
and Human Services, Social Security Administration Northeast Program
Service Center, 9 FLRA No. 142 (1982). In that case the Authority held
that, by requiring management to assign an employee who was performing
unsatisfactorily to a like-graded position in order to afford that
employee an opportunity to perform satisfactorily, the disputed proposal
directly interfered with management's right to assign employees to
positions under section 7106(a)(2)(A) of the Statute. /4/ Therefore,
since Union Proposal 2 herein, like Union Proposal 1 in Northeast
Program Service Center, would require the reassignment of an employee
who is performing unsatisfactorily, it likewise directly interferes with
the right to assign employees under section 7106(a)(2)(A) and, thus, is
outside the duty to bargain.
Union Proposal 3 similarly would require management to give a benefit
authorizer instructor who is performing unsatisfactorily the option of
being reassigned to another GS-9 position. That is, the proposal at
issue would subject the Agency's reserved discretion concerning
reassignment of an employee to the control of that employee's decision
to seek reassignment. In this regard, Union Proposal 3 has the same
effect as subsection (f) of Provision 5 in International Organization of
Masters, Mates, and Pilots and Panama Canal Commission, 11 FLRA No. 29
(1983), which permitted employees themselves, under specified
circumstances, to assign duties. The Authority held that by making the
assignment of work a matter to be decided by employees instead of
management the provision deprived management of its right to assign work
under section 7106(a)(2)(B) of the Statute. Likewise, by giving an
employee the right to determine that he or she will be reassigned, Union
Proposal 3 would directly interfere with management's right to assign
employees under section 7106(a)(2)(A) of the Statute and, thus, is
outside the duty to bargain.
Union Proposal 4
Prior to the evaluation of employees under this system each
employee will receive satisfactory training as determined by
mutual agreement between Local 1395 and the GLPSC as mandated by
Article 15, section a of the Master Agreement. It is agreed that
a committee for this purpose will be established under Article 15,
section d.
Union Proposal 4, by requiring the agency to provide mutually
agreed-upon training to employees as a condition precedent to its
evaluation of their performance, has the same effect as the proposal at
issue in American Federation of Government Employees, AFL-CIO, Local
3004 and Department of the Air Force, Otis Air Force Base,
Massachusetts, 9 FLRA No. 87 (1982). In that case, the proposal would
have required management to provide employees who had duties added to
their position description specific formal training in those duties
before evaluating them thereon. The Authority held that the proposal
directly interfered with management's right to assign work under section
7106(a)(2)(B) of the Statute in that it required the agency to provide
training to employees. Therefore, by requiring management to provide
training to employees prior to evaluating them, the type and amount of
which training would itself be subject to negotiation, Union Proposal 4,
for the reasons set forth more fully in the Otis Air Force Base
decision, would directly interfere with management's right to assign
work under section 7106(a)(2)(B) of the Statute and, thus, is outside
the duty to bargain. See also American Federation of Government
Employees, AFL-CIO, Local 1923 and Department of Health and Human
Services, Social Security Administration, 9 FLRA No. 122 (1982), in
which the Authority held that proposals requiring the agency to provide
specific types of training to unit employees, and prescribing the
duration thereof, directly interfered with the agency's right to assign
work under section 7106(a)(2)(B).
By its terms, Union Proposal 5 would establish qualitative ("Extent
to which work was free from clearly defined error") and quantitative
("Amount of work accomplished") performance standards for employees in
instructor positions. In this regard, therefore, it has the same effect
as the union proposal at issue in National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
(1980), affirmed sub nom. National Treasury Employees Union v. Federal
Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), wherein the
Authority held that the proposal, by establishing the content of a
performance standard for job retention, directly interfered with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. Since Union Proposal 6 herein
would similarly establish the content of performance standards, for the
reasons more fully stated in Bureau of the Public Debt it would likewise
directly interfere with management's rights to direct employees and
assign work under section 7106(a)(2)(A) and (B) and, thus, is outside
the duty to bargain. /5/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review with
respect to Union Proposals 1-5 be, and it hereby is, dismissed. Issued,
Washington, D.C., May 7, 1984
Barbara J. Mahone, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Haughton concurring:
I concur with the majority decision on the proposals presented in
this case. However, I would not like the discussion regarding Union
Proposal 1 to be regarded as prohibiting or discouraging the
establishment, by voluntary agreement, of programs providing for
employee involvement in joint labor-management committees. These
programs provide structures whereby employees at all levels are able to
participate in discussions about their work and to use their knowledge,
skills and abilities more effectively. I believe that they should be
encouraged as being consistent with the promotion of an effective and
efficient government.
Joint labor-management committees already have been successful in
many areas. Private sector firms in such basic industries as auto,
steel, electrical and telephone have made major commitments to employee
participation plans as a means of improving both productivity and the
quality of work life. The experience in Japan is well known.
In its "Resource Guide to Labor Management Corporation," the U.S.
Department of Labor lists twelve ongoing programs in the Federal
government. To this list must be added the recently negotiated "Quality
Circles" in the Internal Revenue Service. One of the best known joint
programs in the Federal sector was started at the Norfolk Naval Shipyard
in 1979. This undertaking has been a substantial success. A
publication of the shipyard notes that "Quality and productivity
improvements are results of employees having more input into decisions
which affect their day to day work." /6/
I agree that employee involvement type programs cannot be mandated
under our Statute. Indeed, I believe that to be successful they can be
established only by voluntary agreement. It is in this area of mutually
agreed upon labor-management activity that I would like to see the
Federal sector as a leader, not just a follower, of private sector
developments. Issued, Washington, D.C., May 7, 1984
Ronald W. Haughton, Member
APPENDIX
Union Proposal 1
25. A joint Labor-Management Committee will be established to
study the performance of BA and CA trainees. This committee will
have access to all data necessary to establish reasonable
standards for trainees. This committee will make quarterly
reports to revise or retain the present set of performance
expectations for BA and CA trainees. This committee will be
composed of equal members of management and labor. Should there
be a disagreement on this committee that cannot be resolved by the
President of Local 1395 and the Director of Management then the
dispute shall be resolved through arbitration. Until this
committee developes these expectations the following interim
standards shall be used. (Who will decide on the basis of whether
these standards are equitable, fair, reasonable and
non-discriminatory toward any class of individuals.) /7/
BENEFIT AUTHORIZER TRAINEE G.S.-5
Productivity 3 to 5 cases per day
Payment Accuracy 90 to 98%
Technical Accuracy 80 to 83%
Notice Accuracy 90 to 93%
These are the requirements to get off review and to be
eligible
for promotion to the G.S.-7 position.
G.S.-7 (Requirements for Promotion to Journeyman) /8/
Productivity 7 to 9 cases per day
Payment Accuracy 90 to 92%
Technical Accuracy 89 to 92%
Notice Accuracy 93 to 95%
CLAIMS AUTHORIZER TRAINEE
G.S.-7 (Requirements to get off review and to qualify for
promotion to Journeyman)
Productivity 7 to 9 cases per day
Payment Accuracy 90 to 92%
Documentation Accuracy 90 to 92%
Notice Accuracy 93 to 95%
Technical Accuracy 89 to 92%
These requirements are based upon the following principles:
1. A trainee only need attain the required standard of
performance for his current grade level to be eligible for
promotion to his next career ladder level.
2. A trainee must be deficient in a majority of the areas
measured in the review to be considered not performing acceptably.
Union Proposal 5 /9/
The standard for this appraisal item represents the level of
performance which is considered acceptable for a journeyman level
employee. An employee who does not meet these requirements should
receive an "A" for this item. An employee who usually meets, but
rarely exceeds these requirements, should be given a "B". An
employee who meets and sometimes exceeds these requirements should
receive a "C". An employee who exceeds these requirements but not
to an exceptional degree should receive a "D". An employee who
exceeds these requirements to an exceptional degree should receive
an "E" for the item.
Description: Extent to which work was free from clearly
defined error.
Standard
(Performance will be considered up to standard when the
employee:)
Secures and thoroughly examines all information pertinent to
post-entitlement actions on individual cases, making sound
decisions consistent with law and regulations and taking effective
action to implement the decisions.
Provides clear and understandable training to the trainee on
the various functions of the benefit authorizer position as it is
presented on the appropriate technical literature issued by the
Social Security Administration.
Provides the trainee with sound advice on how to perform the
duties of the benefit authorizer.
Correctly analyzes and presents new procedures to trainees or
journeymen if required. May be called upon to develop new
training packages.
Indicators of Performance
(This item can be displayed in various ways such as the manner
in which the employee:)
Makes decisions consistent with law and regulation.
Applies established policy and procedure to post-entitlement
cases.
Prepares correspondence reports and records.
Conducts effective training by presenting training material
clearly and understandably.
Performance Review Summary
(Was performance level measured? To what degree? Reasons
performance was above/below standard. Suggestions for improving
level of performance.)
. . . .
The standard for this appraisal item represents the level of
performance which is considered acceptable for a journeyman level
employee. An employee who does not meet these requirements should
receive an "A" for this item. An employee who usually meets, but
rarely exceeds these requirements, should be given a "B". An
employee who meets and sometimes exceeds these requirements should
receive a "C". An employee who exceeds these requirements but not
to an exceptional degree should receive a "D". An employee who
exceeds these requirements to an exceptional degree should receive
an "E" for the item.
Description: Amount of Work accomplished.
Standard
(Performance will be considered up to standard when the
employee:)
Makes documents and sends notification of post-entitlement
actions.
Completes assignments timely.
Presents training material within reasonable time frames.
Will deviate from established time frames when reasonable to do
so.
Indicators of Performance
(Does the employee?)
Contribute to the module's productivity goals for
post-entitlement work.
Class instructions completed within reasonable time frames.
Performance Review Summary
(Was performance level measured? To what degree? Reasons
performance was above/below standard. Suggestions for improving
level of performance.)
--------------- FOOTNOTES$ ---------------
/1/ Section 7106(a)(2)(A) and (B) of the Statute provides, in
relevant part, as follows:
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 . . . direct . . . employees in the agency . . . ;
(B) to assign work(.)
/2/ Cf. American Federation of Government Employees, AFL-CIO, Local
3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA No. 34 (1981) (Union Proposal 6) (joint
labor-management committee with limited power to make recommendations
for changes in performance appraisal system negotiable as a procedure
under section 7106(b)(2) of the Statute).
/3/ Cf. National Treasury Employees Union and NTEU Chapter 72 and
Internal Revenue Service, Austin Service Center, 11 FLRA No. 58 (1983),
(Union Proposal 2) (proposal established a criterion for evaluating an
employee's ability to perform higher graded work for use in connection
with decision to promote the employee to that higher grade.) Unlike
Union Proposal 2 in Austin Service Center, which merely established
guidelines for predicting an employee's ability to perform the work of a
higher grade level, the proposal at issue herein clearly would limit the
level of performance management could require of an employee in that
employee's current position.
/4/ Section 7106(a)(2)(A) provides, in relevant part, as follows:
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 . . . assign . . . employees in the agency(.)
/5/ With respect to the Union's contentions that Union Proposal 5 is
within the duty to bargain because it does not establish a standard for
job retention, because it does not concern standards established
pursuant to chapter 43 of title 5 of the United States Code, or because
it establishes a standard for eligibility for promotion, see, supra, pp.
3-4.
/6/ "Report of Implementation and Progress of the Quality Circle
Program at Norfolk Naval Shipyard," Productivity Programs Office,
Norfolk Naval Shipyard, p. 13, June 1981.
/7/ The bracketed material is a handwritten addition to the Union's
proposal as found in the record herein. Its significance with respect
to the remainder of the proposal is unclear but, in any case, would not
be dispositive.
/8/ The numerical figures in this portion of the proposal are amended
in accordance with Union notice to the Agency as found in the record
herein.
/9/ While it is not entirely clear from the record, based primarily
on the wording of the standards set forth herein, it appears that Union
Proposal 5 sets forth the standards for instructors which, according to
Union correspondence with the Agency dated May 20, 1980, were to be
attached to the other proposals pertaining to instructors (Union
Proposals 2-4) contained in that correspondence.