[ v23 p168 ]
23:0168(21)NG
The decision of the Authority follows:
23 FLRA No. 21
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Union
and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Agency
Case No. O-NG-412
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of eight Union proposals in connection with changes made
by the Agency in its procedures for evaluating employees.
II. Union Proposal 1
1. 6-If an employee's Within-Grade Salary Increase (WIGI) or
ladder promotion is pending, the last audit on record will be used
to assess the employee's qualifications for as long as the audit
record is maintained in the SF-7B Extension File. No further
audits will be conducted.
A. Positions of the Parties
The Agency contends that the proposal conflicts with Office of
Personnel Management (OPM) regulations, as stated in the Federal
Personnel Manual (FPM), Chapter 531. The Agency also contends that the
proposal would require promotion decisions to be based on a single audit
record which would be the sole criterion for the decision.
The Union contends that the proposal is fully consistent with the
requirements of law and that the Agency's position reveals that it has
misunderstood the nature of the proposal. The Union asserts that the
proposal falls within the Agency's duty to bargain under section
7106(b)(2) and (3) of the Statute.
B. Analysis
5. U.S.C. Section 4302 requires agencies to establish performance
appraisal systems under Office of Personnel Management (OPM) prescribed
Government-wide regulations, /1/ which, among other things, shall
provide for recognizing and rewarding employees whose performance so
warrants. 5 U.S.C. Sections 5335 and 5336 specifically govern the
granting of within-grade increases. Subsequent to the filings in this
case, OPM revised its regulations implementing these sections of title
5. OPM's revised regulations concerning within-grade increases appear
at 5 C.F.R. Section 531.404 ("Earning within-grade increase.").
Generally speaking, management decisions regarding such increases are
made according to an OPM-approved Performance Management Plan (PMP).
Under OPM guidelines, each agency is required to establish performance
standards against which an employee's work is measured. An employee's
performance evaluation results in a written "rating of record." In order
to receive a within-grade increase, the employee's performance of the
duties and responsibilities of his or her assigned position must be at
an acceptable level of performance, which is defined elsewhere in the
regulations as "Fully Successful."
In terms of this proposal, the audits to which it refers must be a
part of an OPM-approved PMP for evaluating employees' performance or it
would conflict with Government-wide regulations. That is, if audits are
not part of an OPM-approved PMP, they cannot legally be used for making
within-grade or ladder promotion determinations. Moreover, assuming
that the audits referred to in the proposal are part of the Agency's
OPM-approved performance appraisal system, the Authority finds that the
proposal is inconsistent with 5 C.F.R. Section 531.404(a)(1) of OPM's
revised regulations governing within-grade salary increases. The
proposal would require that an agency use an employee's last audit on
record in determining whether the employee merits a within-grade salary
increase. The proposal would also require that no further audits be
conducted after the last audit on record. However, 5 C.F.R. Section
531.404(a)(1) specifies that "when a within-grade increase decision is
not consistent with the employee's most recent rating of record a more
current rating of record must be prepared." This means, for example,
that if the management official responsible for determining whether an
employee merits a within-grade increase decides that the increase should
be granted (or denied), the decision must be consistent with the
employee's most recent rating of record. That is, the decision to grant
such an increase (or to deny such an increase) must be validated by the
results of the employee's most recent performance evaluation in order
for the within-grade increase to be approved (or to be disapproved). If
there is an inconsistency between what the management official believes
the employee should receive and the results of the employee's most
recent rating of record, the regulation requires that a more current
rating of record be prepared to be used as the basis for an acceptable
level of competence determination for the within-grade increase.
Under the proposal, if there were an inconsistency between a
management official's decision to grant (or to deny) a within-grade
increase and the results of the employee's most recent rating of record,
the official would be precluded from conducting any additional audits in
preparing a more current rating of record. However, under the
assumption that audits are a part of the Agency's OPM-approved
performance appraisal system, 5 C.F.R. Section 531.404(a)(1) requires
the Agency to perform a new audit in the evaluation of the employee to
prepare a more current rating of record. Therefore, the proposal is
inconsistent with this section of the C.F.R.
C. Conclusion
The audits referred to in Union Proposal 1 must be part of an
OPM-approved performance appraisal system or the proposal conflicts with
OPM regulations. Moreover, assuming that the audits referred to in the
proposal are part of an OPM-approved performance appraisal system, for
the reason cited above, the proposal is inconsistent with 5 C.F.R.
Section 531.404(a)(1). Therefore, Union Proposal 1 is outisde the duty
to bargain under section 7117(a)(1) of the Statute. In view of this
holding, section 7106(b)(2) and (3) are not applicable. See, for
example, National Federation of Federal Employees, Local 29 and
Department of the Army, Kansas City District, Corps of Engineers, 21
FLRA No. 31 (1986).
III. Union Proposals 2, 3, 4, 5, and 6
2. 8 -- On the day prior to the first day of the audit, the
authorizer will be supplied with cases.
3. 9 -- The authorizer will be given cases only from his/her
terminal digit area to maintain the integrity of the terminal
digit system.
4. 10 -- Employees will not be required to work out-of-module
cases during the audit.
5. 17 -- To ensure uniformity, each employee will receive the
same number of the same types of cases.
6. 30 -- Awards will be distributed on a terminal digit basis
and may be selected before or after screening.
A. Positions of the Parties
The Agency contends that all of these proposals conflict with its
right to assign work under section 7106(a)(2)(B) of the Statute. In
addition, the Agency contends that Union Proposal 2 also violates
section 7106(b)(1).
The Union, on the other hand, disagrees with the Agency's view that
these proposals violate management's right to assign work. Rather, the
Union contends that it is attempting to negotiate either procedures
relating to the assignment of cases during an audit or the impact and
implementation of that assignment.
B. Analysis
1. Right to Assign Work Under Section 7106(a)(2)(B)
Section 7106(a)(2)(B) of the Statute reserves to management the right
to assign work. It is well established that proposals which place
restrictions on the exercise of management's right to assign work are
outside the duty to bargain. Specifically, the Authority has held that
proposals which require an agency to sample employees' work in a
particular way in order to audit employees' ongoing work performance
interfere with management's right to "direct employees" and "assign
work." In so holding, the Authority has stated that section
7106(a)(2)(A) and (B) encompass the right to determine the quantity,
quality, and timeliness of employees' work, the aspects of employees'
work which will be evaluated in connection with the preparation of
employee performance appraisals, and the right to audit employees' work
by the methods management deems most appropriate for such purposes. See
Social Security Administration, Northeastern Program Service Center, 18
FLRA No. 60 (1985) (Union Proposals 1, 2, 5 and 7); American Federation
of Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 631 (1980) (Union
Proposal XVI), enforced sub nom. Department of Defense v. FLRA, 659 F.2d
1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945
(1982).
All the proposals here would place restrictions and impose conditions
on the exercise of management's right to evaluate its employees and,
hence, to assign work. Specifically, Union Proposal 2 would require
management to assign cases prior to an audit rather than the day of the
audit and unduly restricts management in the exercise of its right to
assign work when it chooses to do so. Union Proposal 3, which would
restrict the assignment of cases to those in the employees' terminal
digit area, would prevent management from assigning cases outside the
terminal digit area. Union Proposal 4 would preclude the assignment of
a certain type of case ("out-of-module") to employees undergoing an
audit. Union Proposal 5 would prevent management from assigning
different types or numbers of cases to employees subject to an audit.
While the Union claims that this proposal merely requires that the
Agency exercise its right to assign work in a fair manner, the proposal
would in reality require the assignment of the same number and types of
cases to employees undergoing an audit, thereby clearly interfering with
that right. Finally, Union Proposal 6 would require the assignment of
certain types of claims ("awards") on a terminal digit basis, that is,
based on a claimant's social security number, again limiting management
in the distribution of work assignments.
2. "Appropriate Arrangements" Under Section 7106(b)(3)
Whether a proposal constitutes a negotiable appropriate arrangement
under section 7106(b)(3) of the Statute depends upon whether the
proposal "excessively interferes" with the exercise of management's
rights. A threshold question is whether a proposal is in fact intended
to be an arrangement for employees adversely affected by management's
exercise of its rights. National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 slip op. at
8, (1986).
On the basis of the record, the Authority finds that Union Proposals
2, 3, 4, 5 and 6 are intended as arrangements for employees adversely
affected by the exercise of management's rights. Specifically, these
proposals are intended by the Union to ameliorate the adverse effects on
employees as a result of changes made by the Agency in the auditing
procedures by which employees are evaluated, pursuant to the Agency's
right to assign work under section 7106(a)(2)(B) of the statute.
However, the Authority finds that in each case the proposed amelioration
would totally preclude the Agency from exercising the various aspects of
the right to assign work covered by the proposals. A proposed
amelioration which totally abrogates the exercise of a management right
clearly does not constitute an appropriate arrangement within the
meaning of section 7106(b)(3). See American Federation of Government
Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983),
reversing and remanding American Federation of Government Employees,
AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
Washington, D.C., 7 FLRA 91 (1981).
3. Union Proposal 2 and Section 7106(b)(1)
The Agency contends that Union Proposal 2 violates section 7106(b)(1)
of the Statute by proposing "how" and "when" work will be performed.
However, the Agency fails to demonstrate in what respect the proposal
concerns the technology, methods and means of performing work so as to
be negotiable only at the election of the Agency. Therefore, the
Authority finds that the Agency's contention in this regard must be
denied.
C. Conclusion
Union Proposals 2, 3, 4, 5 and 6 directly interfere with management's
right to assign work under section 7106(a)(2)(B) of the Statute, and
therefore do not constitute negotiable procedures under section
7106(b)(2) of the Statute. Moreover, the proposals excessively
interfere with management's right to assign work, so as to make them
inappropriate as arrangements, under section 7106(b)(3), for employees
adversely affected by the Agency's exercise of that right. In addition,
the Agency has failed to demonstrate that Union Proposal 2 violates
section 7106(b)(1) of the Statute. The Authority concludes, for the
reasons and cases cited above, that the Agency is under no obligation to
bargain concerning these proposals.
IV. Union Proposal 7
7. 21 -- In the event of dual-entitlement cases, the
authorizer will be given credit for having processed two cases.
A. Positions of the Parties
The Agency states that the proposal is nonnegotiable because it
conflicts with the right to assign work. The Agency further contends
that it is under no obligation to bargain over this proposal because
there has been no change in its practice of crediting a dual-entitlement
case as one case.
The Union asserts that there is no merit to the Agency's statement
that the proposal interferes with the assignment of work. In addition,
while not disputing the Agency's contention that no change has taken
place in its practice of crediting dual-entitlement cases, the Union
nevertheless claims that this is not a basis for finding the proposal to
be outside the duty to bargain.
B. Analysis
1. Assignment of Work Under Section 7106(a)(2)(B)
The Authority has previously held that the right to assign work,
under section 7106(a)(2)(B) of the Statute, includes, among other
things, the right to determine what work shall be done, how it shall be
done, by which employee it shall be done, and to determine the quantity,
quality and timeliness of work required of an employee. See National
Treasury Employees Union and Department of the Treasury, Internal
Revenue Service, 7 FLRA 235, 238 (1981). The Authority has also held
that proposals which substantively restrict management in its
establishment of performance standards are inconsistent with section
7106(a)(2)(A) and (B) of the Statute because they improperly interfere
with management's right to direct employees and to assign work.
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691
F.2d 553 (D.C. Cir. 1982). The issue in terms of this proposal is
whether, by requiring the Agency to give employees performing the work
associated with dual-entitlement cases credit for having processed two
cases, the proposal would in any way infringe upon management's right to
assign work. In agreement with the Union, the Authority finds that it
does not.
In Department of the Treasury, 7 FLRA 235 at 238, the Authority
determined that five union proposals relating to the counting of work
for purposes of employee evaluation were within the duty to bargain. In
that case, as here, the proposals merely established procedures for
counting the work accomplished by employees in a manner which the
representative believed would result in an equitable and accurate
measure of each employee's quantity of production. The Agency had
already determined, at its sole discretion, to assign work and to direct
employees to accomplish the work through the establishment of
performance standards. In addition, the agency retained the right to
adjust the performance standards to accommodate the manner in which work
was to be counted. For the same reasons that the proposals in that case
were found to be negotiable, the Agency's contention here that Union
Proposal 7 interferes with management's right to assign work, under
section 7106(a)(2)(B), must be denied.
2. The Duty to Bargain
The Authority will decide here only the negotiability issues raised
under section 7105(a)(2)(E) of the Statute. Insofar as the Agency
questions its obligation to bargain over this proposal because of its
belief that there has been no change in its practice of crediting a
dual-entitlement case as one case, the resolution of this question may
be pursued in the context of other appropriate proceedings. See
American Federation of Government Employees, AFL-CIO, Local 2736 and
Department of the Air Force, Headquarters 379th Combat Support Group
(SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 at 306, n. 6
(1984).
C. Conclusion
The Authority concludes, for the reasons and cases cited above, that
Union Proposal 7 does not directly interfere with the Agency's right to
assign work, but constitutes a negotiable procedure under section
7106(b)(2) of the Statute. Moreover, insofar as the parties disagree
concerning their mutual obligation to bargain over the proposal, such a
disagreement may be pursued in the forum most appropriate for its
resolution.
V. Union Proposal 8
8. 31 -- If deficiency trends are noted by the Technical
Assistant as a result of the audit, the employee responsible will
be subject to formal training by EDTS personnel, if the employee
so desires, prior to being placed on any partial or 100% audit.
The parties agree, of course, that the intent of the audit is
positive, not punitive; that it is a method to determine the need
for, and extent of, additional training or re-training.
A. Positions of the Parties
The Agency contends that the proposal interferes with the right to
assign work, under section 7106(a)(2)(B) of the Statute, because it
would require management to provide training to its employees. In
addition, the Agency states that the proposal is nonnegotiable because
it does not address management's implementing procedures or any
identifiable adverse impact of management's decision regarding the
selection of cases for audit.
The Union states that the proposal is intended as a remedial
procedure to insure that the auditing of particular employees will be
fair and equitable, and that the application of particular audits to
employees would be grievable. The Union also states that the clear
intent of the proposal is to authorize training to employees who display
deficiency trends, which would be conducted by employees in the Employee
Development and Training Section (EDTS).
B. Analysis
It is well established that proposals which require an agency to
provide training to bargaining unit employees are outside the duty to
bargain because the assignment of training constitutes an assignment of
work. See, for example, International Brotherhood of Electrical
Workers, AFL-CIO, Local 121 and U.S. Government Printing Office,
Washington, D.C., 8 FLRA 188 (1982) (Proposal 1); International
Association of Fire Fighters, AFL-CIO, CLC, Local F-116 and Department
of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 752
(1982). By its own admission, the Union intends this proposal to
require the training of employees who display deficiency trends. The
proposal also would require EDTS employees to perform such training. In
both respects the proposal conflicts with management's right to assign
work within the meaning of section 7106(a)(2)(B) of the Statute by
requiring management to assign a specific type of work (training) to
certain employees to the exclusion of other responsibilities management
might wish to assign to such employees. Contrary to the Union's
contention, therefore, the proposal does not constitute merely a
remedial procedure leading to the fair and equitable application of
audit results. Rather, the proposal would directly interfere with
management's statutory right to assign work. See, for example, American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986)
(Union Proposal 4).
C. Conclusion
Union Proposal 8 directly interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute, and therefore is
not a negotiable procedure under section 7106(b)(2). Accordingly, the
Agency is under no obligation to bargain concerning the proposal.
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal 7.
/2/ Further, IT IS ORDERED that the Union's petition for review as to
Union Proposals 1, 2, 3, 4, 5, 6 and 8 be, and it hereby is, dismissed.
Issued, Washington, D.C. August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Authority has previously determined that Office of Personnel
Management requirements codified at title 5 of the Code of Federal
Regulations are Government-wide regulations within the meaning of
section 7117(a) of the Statute. Professional Air Traffic Controllers
Organization, AFL-CIO and Department of Transportation, Federal Aviation
Administration, 4 FLRA 232, 233 (1980).
(2) In finding Union Proposal 7 to be within the duty to bargain, the
Authority makes no judgment as to its merits.