19:0093(9)NG - AFGE Local 32 and OPM -- 1985 FLRAdec NG

[ v19 p93 ]
The decision of the Authority follows:

 19 FLRA No. 9
                                            Case Nos. O-NG-962, 
                                            O-NG-967, and
    The petitions for review in these cases come before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and present issues
 concerning the negotiability of five Union proposals.  Upon careful
 consideration of the entire record, /1/ including the parties'
 contentions, the Authority makes the following determinations.  /2/
                             Union Proposal 1
                         (from Case No. O-NG-962)
          Employees will not be penalized for any failure or malfunction
       of automation equipment which is outside their control.
                             Union Proposal 2
                         (from Case No. O-NG-967)
          Employees will not be penalized for matters outside their
       control such as "down time" in their performance appraisals, and
       given instructions on how to maintain productivity during such
                             Union Proposal 3
                         (from Case No. O-NG-986)
          The performance standards will take into account the fact that
       employees are not responsible for circumstances regarding case
       control and desk organization which are outside their control.
    It is well established that, while proposals establishing a general,
 nonquantitative requirement by which the application of
 management-developed performance standards could be evaluated in a
 subsequent grievance proceeding are within the duty to bargain, /3/
 proposals which restrict management's authority to establish performance
 standards themselves are inconsistent with the rights to assign work and
 to direct employees pursuant to section 7106(a)(2)(A) and (B) of the
 Statute.  /4/ In this regard, the Authority finds that the proposals
 here in dispute seek to negotiate on the content of performance
 standards themselves.  That is, each of the three proposals describes a
 specific work situation which is "outside their (the employees')
 control" and seeks to insulate the employees from penalties attributable
 to the occurrence of such circumstances.  The proposals are not limited
 to the assessment in a grievance arbitration of the application of
 standards established by management.  Rather, pursuant to these
 proposals, arbitral scrutiny in a given proceeding would extend to
 inquiry into whether the relevant performance standards themselves make
 the appropriate allowances for the situations described.  Moreover, if
 the Agency were to take into account the circumstances described in the
 proposals by assigning other work and applying performance standards
 related to the alternate assignments, the proposals, by their terms,
 would permit investigation by an arbitrator into whether the alternate
 assignments and/or the related performance standards have an adverse
 impact on unit employees.
    Because the three disputed proposals would, in effect, provide for
 arbitral review of the content of performance standards and, by
 extension, examination of work assignments and would permit arbitrators
 to substitute their judgment for that of the Agency, they restrict
 management's authority to establish performance standards and to assign
 work.  For these reasons they are to the same effect as Union Proposal 4
 in Saint Lawrence Seaway Development Corporation.  Consequently, based
 on Saint Lawrence Seaway Development Corporation, and the reasons and
 case cited therein, Union Proposals 1, 2, and 3 are outside the duty to
                             Union Proposal 4
                         (from Case No. O-NG-962)
          Every effort will be made to create bridge positions and expand
       opportunities in OPI (Office of Personnel Investigations).  /5/
       (Footnote added.)
    The Union asserts that the intent of this proposal is to obtain
 Agency compliance with 29 CFR 1613.203(c) (1984) which requires agencies
          (c) (u)tilize to the fullest extent the present skills of
       employees by all means, including the redesigning of jobs where
       feasible so that tasks not requiring the full utilization of
       skills of incumbents are concentrated in jobs with lower skill
 It also appears, based on the record, that the "bridge positions"
 referred to in the proposal would be positions established at certain
 grade levels permitting employees to progress "from lower graded
 positions to higher graded positions." /6/
    The Agency contends that Union Proposal 4 is inconsistent with the
 reserved right, pursuant to section 7106(a)(1) of the Statute, to
 determine its organization.  It further asserts:
          To require an agency to make its best effort to accomplish a
       certain goal limits its discretion to define and pursue objectives
       adjudged more worthy by management.  Given available funds, an
       agency would be constrained, under the terms of this proposal, to
       create a bevy of bridge positions, even if it were not of a mind
       to do so.  It would be compelled to act in accordance with the
       Union's organizational preferences, and not its own, even if this
       would not further the efficient conduct of the agency's business.
       /7/ (Footnote added.)
    The Union does not dispute the Agency's interpretation of the
 proposal's purpose and effect.  Thus, it is concluded that the proposal
 would place a high priority on management's organizing in the manner
 described and consequently would prevent management from structuring its
 organization without "bridge positions" even if such structure was
 deemed by management to foster maximum productivity.  Viewed in this
 light, Union Proposal 4 is to the same effect as Union Proposals 1, 5, 6
 and 7 which were before the Authority in American Federation of
 Government Employees, AFL-CIO, Local 3742 and Department of the Army,
 Headquarters, 98th Division (Training), Webster, New York, 11 FLRA 189
 (1983).  The Authority found the four cited proposals in that case to be
 inconsistent with management's right to determine its organization
 because the proposals were "designed to require that the Agency
 establish its organization structure in a manner which will assure
 promotional opportunities for its civilian technician employees."
 Because Union Proposal 4 similarly seeks an organizational structure
 providing for promotional opportunities, to the exclusion of other
 structures deemed more appropriate by management, it, too, is
 inconsistent with the right of the Agency to determine its organization
 pursuant to section 7106(a)(1) of the Statute.  Consequently, based on
 98th Division, the proposal is outside the duty to bargain.
    The Union's argument that proposal 4 is authorized by 29 CFR
 1613.203(c) does not alter this finding.  It