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

 19 FLRA No. 9
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 32, AFL-CIO
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Agency
 
                                            Case Nos. O-NG-962, 
                                            O-NG-967, and
                                            O-NG-986
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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
       periods.
 
                             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
 bargain.
 
                             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
 to:
 
          (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
       requirements(.)
 
 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 is noted that the cited
 regulation does not mandate that employees be given promotional
 opportunities to the exclusion of other factors management may need to
 consider in determining its optimum organization.  Rather, the cited
 regulation only requires that management utilize the present skills of
 its employees to the fullest extent by assigning less demanding work to
 positions with lesser skill requirements.  Moreover, the regulation
 requires that such realignment of tasks be undertaken "where feasible,"
 i.e., when consistent with other organizational considerations.
 
                             Union Proposal 5
 
                         (from Case No. O-NG-986)
 
          The application of the training memo will be fair and
       consistent within sections and from section to section.
 
    The record does not reveal the exact purpose and effect of the
 "training memo" referred to in Union Proposal 5.  However, it appears
 from the sparse information available, the Union having filed no reply
 brief in the case, that the memo sets forth procedures to be followed by
 employees in carrying out their work assignments.  Thus, the Agency
 asserts:  "Although we do not know what meaning the Union intends by the
 general, indeterminate requirement of 'fair and consistent,' it seems
 reasonably designed to require a predictable and concrete set of
 requirements within the various units and sections, regardless of
 managerial needs." /8/
 
    Based on the available information, the Authority is persuaded that
 the referenced training memo is a vehicle used by the Agency in
 directing employees and assigning work.  In this regard, the Authority
 defined those two management rights, embodied in section 7106(a)(2)(A)
 and (B) of the Statute, in National Treasury Employees Union and
 Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775
 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691
 F.2d 553 (D.C. Cir. 1982).  The Authority there stated that "the right
 'to direct . . . employees in the agency' means to supervise and guide
 them in the performance of their duties on the job." The right to assign
 work, the Authority observed, "is composed of two discretionary
 elements:  (1) the particular duties and work to be assigned, and (2)
 the particular employees to whom or positions to which it will be
 assigned."
 
    Thus, the Union's effort, by means of this proposal, to negotiate on
 the subject memo is an attempt to negotiate on how the underlying
 management rights shall be exercised, and the fact that management has
 decided to articulate by means of training memo how the underlying
 management rights will be exercised does not subject either that
 document or the underlying rights to negotiation.  Cf. American
 Federation of Government Employees, AFL-CIO, Local 1603 and Navy
 Exchange, Naval Air Station, Patuxent River, Maryland, 9 FLRA 1039, 1040
 (1982) (wherein the Authority noted that an agency regulation, setting
 out how management will exercise a right reserved to it by section
 7106(a)(2)(A) of the Statute, is not subject to a compelling need
 challenge under section 7117(a)(2) because bargaining on a contrary
 proposal is barred by the proposal's inconsistency with the underlying
 management right).  Moreover, the fact that management has opted to
 organize its work in a certain manner, does not authorize bargaining on
 a proposal which would bind management not to deviate from that scheme.
 In this regard, the Authority held to be outside the duty to bargain a
 proposal in International Association of Fire Fighters, Local F-215 and
 Headquarters, 15th Infantry Division (Mechanized), Fort Polk, Louisiana,
 8 FLRA 417 (1982), which would have, in effect, barred the assignment to
 fire station employees of any duties not related to the fire fighting
 function.  The proposal was found to interfere with management's right
 to assign work.  Consequently, because it is inconsistent with the
 management rights to direct employees and to assign work, pursuant to
 section 7106(a)(2)(A) and (B) of the Statute, Union Proposal 5, herein,
 is outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petitions for review in Case
 Nos. O-NG-962, O-NG-967 and O-NG-986 be, and they hereby are, dismissed.
  Issued, Washington, D.C., July 11, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union filed a Reply Brief only in Case No. O-NG-962.
 
 
    /2/ In addition to proposals unique to that case, each of these three
 cases contains one proposal presenting a common issue.  Thus, the
 Authority deemed it appropriate to consolidate these cases in the
 interest of expeditious processing.
 
 
    /3/ American Federation of Government Employees, AFL-CIO, Local 32
 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980)
 (Union Proposal 5).
 
 
    /4/ American Federation of Government Employees, AFL-CIO, Local 1968
 and Department of Transportation, Saint Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA 70 (1981) (Union Proposals 1 and
 2), aff'd sub nom. American Federation of Government Employees, Local
 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 461 U.S. 926
 (1983).
 
 
    /5/ The Union's request for a hearing, pursuant to section 7117(c)(5)
 of the Statute, assertedly to prove that women and minorities are
 underrepresented in higher grade positions in the Agency and that the
 progress of such employees is impeded by a lack of "bridge positions" is
 hereby denied.  The existence of such circumstances is not material to
 making a negotiability determination on Union Proposal 4.
 
 
    /6/ Union Reply Brief (in Case No. O-NG-962) at 3.
 
 
    /7/ Agency Statement of Position (in Case No. O-NG-962) at 6.
 
 
    /8/ Agency Statement of Position (in Case No. O-NG-986) at 3.