[ v23 p329 ]
The decision of the Authority follows:
23 FLRA No. 43 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, GENERAL COMMITTEE OF AFGE FOR SSA LOCALS Union and SOCIAL SECURITY ADMINISTRATION Agency Case No. 0-NG-860 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. II. Procedural Issue The Agency specifically acknowledged that its Statement of Position was not filed within the time limits established by section 7117(c)(3) of the Statute and section 2424.6 of the Authority's Rules and Regulations. However, the Agency did not specifically allege or establish that the events occasioning the untimely filing were "extraordinary circumstances" warranting a waiver of time limits under section 2429.23(b) of the Rules and Regulations. Consequently, the untimely Statement of Position has not been considered in deciding this case. Further, the Agency head's determination on the disputed proposals did not include any rational supporting the allegations that the proposals were not negotiable. III. Union Proposal 1 Employees subject to the Service Observation monitoring shall normally only be the subject of one (1) such Service Observation during each six month period commencing from the effective date of the agreement. A. Position of the Union The Union, in its Reply Brief, characterizes this proposal as "a general procedure to be followed after the agency has made its substantive decision to conduct service monitoring." The effect of the proposal is explained in the following manner: This proposal would establish the normal frequency that employees would be subject to telephone monitoring. While the proposal sets this frequency at "normally" once every six (6) months the agency retains the right to perform service monitoring more or less often. Further, management would retain full discretion to determine who would be monitored, by whom and when. B. Analysis Based primarily on the Union's statements as to the intent and effect of Union Proposal 1, the Authority finds that it is not materially different from Proposal 7 under the heading "Measuring Productivity" in American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 15 FLRA 909 (1984), rev'd as to other matters, Decision and Order on Motion for Reconsideration, (June 19, 1985). Proposal 7 in that case, deemed to be illustrative rather than restrictive, provided that employee's work products would be subject to "normal quality checks that are normally utilized." The Authority concluded, in effect, that use of the words, "normal" and "normally" in that proposal did not inhibit the agency in employing more rigourous scrutiny of employees' work when closer review was warranted. Thus, the Authority found the proposal to be within the duty to bargain because it did not interfere with management's rights to direct employees, to assign work and to determine the methods and means of performing work. In like manner, Union Proposal 1 in this case is within the duty to bargain. C. Conclusion Based on the rational in Social Security Administration, and the Authority's interpretation of the proposal's purpose in that case, Union Proposal 1 in this case is within the duty to bargain. IV. Union Proposal 2 Any subjective term such as "courtesy" will have a universally accepted meaning accepted by all parties to this agreement and will be applied consistently in all affected SSA localities nationwide. A. Position of the Union The Union describes this proposal as establishing "general, nonqualitative criteria on which subjective performance standards will be based." The proposal, according to the Union, leaves the Agency with sole discretion to decide to use such subjective terms in evaluating performance, but requires a jointly developed standardized definition of such terms should management decide to use them. The Union asserts that its proposal is similar to proposals found negotiable by the Authority in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 7 FLRA 235 (1981), in that its proposal also seeks to standardize performance requirements "to prevent arbitrary, capricious and inconsistent management practices." B. Analysis The Union's attempt to analogize its proposal to proposals (presumably Union Proposals 1 through 5) in Internal Revenue Service is unpersuasive. In the cited case, the proposals only addressed the method of counting work production and left with management discretion to establish quantitative performance standards within the accounting procedures established by the proposals. Union Proposal 2 however, presents a different issue because "courtesy" has a qualitative rather than quantitative connotation. /1/ By negotiating on the meaning of that word, as the proposal would require (note the requirement that the meaning "be accepted by all parties to this agreement"), the Union would be participating in defining what is acceptable performance with respect to that aspect of employee performance. Thus, as the proposal requires a performance standard to be established by means of collective bargaining, it is inconsistent with management's rights to direct employees and to assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute. 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 Proposal 3), aff'd sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983). C. Conclusion Based on the reasoning and case cited in Saint Lawrence Seaway Development Corporation, Union Proposal 2 is inconsistent with management's rights to assign and direct employees under sections 7106(a)(2)(A) and (B) of the Statute. V. Union Proposal 3 There will be no secret studies. All studies will be conducted on average workers under normal working conditions. A. Position of the Union The Union asserts that its proposal is "nearly identical" to the first paragraph of Union Proposal 4, found to be negotiable in American Federation of Government Employees, AFL-CIO. Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981). B. Analysis The record establishes that the words "average workers" in Proposal 3 are intended to convey the same meaning as "typical workers" in pargaraph 1 of Union Proposal 4 found negotiable in Federal Deposit Insurance Corporation. Thus, the Authority finds Union Proposal 3 in this case is to the same effect as paragraph 1 of Union Proposal 4 in Federal Deposit Insurance Corporation. The Authority found the cited part of the proposal in that case, barring secret studies and requiring that studies be conducted on "typical workers under normal working conditions," to be a negotiable procedure management would observe in developing performance standards. C. Conclusion Based on the reasoning and case cited in Federal Deposit Insurance Corporation, Union Proposal 3 in this case is a negotiable procedure under section 7106(b)(2). VI. Union Proposal 4 Errors involving judgmental or discretionary issues will be for informational purposes only. A. Position of the Union The Union explains that published Agency guidance frequently lists alternative permissable actions to be taken by an employee in a specific situation, and that the Agency considers all such alternatives proper. According to the Union, the purpose of its proposal is to protect employees from the adverse effect of choosing an authorized alternative with which the employee's supervisor subsequently disagrees. The Union points out that the proposal would not prevent management from deciding which situations may be handled in more than one way. Nor is management prohibited from determining what the allowable options are. The proposal would only apply after those decisions are reached. B. Analysis Union Proposal 4, in essence, is intended to protect employees who take actions in reliance on available Agency guidance when, upon review, the employee's supervisor disagrees with the course of action selected, although that action was among those prescribed by the Agency. While the proposal would not obligate management to communicate to employees what options, among those authorized, are preferred in various circumstances, failure to communicate a preference would, in effect, prevent the Agency from subsequently finding unacceptable an employee's choice among alternatives it had already identified as acceptable. An Agency is required by 5 U.S.C. Section 4302 to develop a performance appraisal system which, among other things, provides for establishment of performance standards and identification of critical elements and obligates management to communicate those standards and critical elements to affected employees. Proposal 4 clearly does not interfere with the Agency's authority to identify critical elements or to set performance standards. Nor does Proposal 4 protect employees from negative evaluations if they fail or refuse to seek advice, when directed by management, in selecting from among authorized options in a given case. Additionally, the proposal does not apply to an employee who fails to select the known preferred option from among authorized alternatives, nor does it prevent the Agency from eliminating options or from identifying one or more available options as preferable to the others in certain circumstances. Consequently, there is no interference with the rights to assign work or to direct employees pursuant to section 7106(a)(2) of the Statute. Rather, the Authority views Union Proposal 4 as being similar in effect to Union Proposal 5 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980), which was construed as requiring that performance standards be applied in a "fair and equitable" manner. Noting in that case that "the proposal . . . does not impose on the Agency a particular decision as to the quantity, quality, and timeliness of production or the establishing of priorities, or otherwise establish the content of performance standards," the Authority concluded that the proposal was within the duty to bargain "as an appropriate arrangement for employees adversely affected by management's authority under the Statute to direct employees and assign work through establishment of performance standards and to discipline employees for unacceptable performance." In reaching this conclusion, the Authority stresses that it is relying solely upon the union's explanation that employees are given alternative courses of action and have the freedom to select any alternative so identified by the Agency. Similarly, the Authority notes the absence in the record of any explanation by the Agency as to the role in employee's judgment is expected to play in selecting among alternatives. There is no indication that the Agency has identified the exercise of sound judgment in choosing among alternative courses of action as a critical element of the positions involved. This is not to say, however, that an agency in exercising its reserved management rights cannot make the exercise of sound judgment a critical element and establish standards of performance for that element. Such actions would be outside the duty to bargain. C. Conclusion Therefore, the Authority finds Union Proposal 4, in those circumstances, to be a negotiable "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. VII. Union Proposal 5 Each technician will be given an appropriate list of errors, each defined in such a manner that all affected parties to this agreement will have a common understanding of what they are and how they will be applied. Any error definition will be applied consistently to all affected employees, regardless of location nationwide. A. Position of the Union According to the Union, this proposal would require the Agency to furnish each bargaining unit employee with a list of errors applicable to his or her work and would further require that the errors be defined in a manner understandable to all parties to the agreement. The Union points out that management would retain the authority to identify errors and that management would not need to negotiate over the definitions. The proposal only requires that the definitions be understood in both their meaning and application and that they be applied consistently throughout the bargaining unit. B. Analysis Adopting the Union's explanation, which is consistent with the language of the proposal itself, the Authority concludes that the purposes of the proposal are to assure that employees are informed of what errors the Agency has determined are applicable to their jobs and to ensure that those employees understand what constitute errors. Thus, Union Proposal 5 is similar in purpose to those proposals, found negotiable by the Authority, requiring management to give notice to employees of which elements of their jobs will be subject to performance rating and which of those elements are deemed by management to be critical. Specifically, in American Federation of Government Employees, AFL-CIO. Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA 697 (1984), the Authority observed that such proposals merely obligate management to comply with the statutory requirement that performance standards and critical elements be communicated to employees. C. Conclusion The Authority finds, therefore, that Union Proposal 5 constitutes a "procedure" within the meaning of section 7106(b)(2) to be followed by management in directing employees and assigning work through application of its performance appraisal system. Consequently, the proposal is within the duty to bargain. VIII. Union Proposal 6 Evaluative conclusions based upon the observation of any employee must be supported and accompanied by evidence gathered by valid, objective commonly accepted and understood evaluative techniques. This other evidence must be sufficient to leave no reasonable doubt that the evidence does indeed represent improper activity or inefficiency by the employee. A. Position of the Union The Union contends that this proposal is "equivalent" to the proposal the Authority held to be negotiable in National Treasury Employees Union and Internal Revenue Service, 8 FLRA 30 (1982), in that its proposal is neither intended to dictate what evaluative techniques the Agency is to use in evaluating employee performance nor to change the quantum of proof necessary to impose performance based discipline on employees. It characterizes Union Proposal 6 as establishing a general, nonquantitative standard and suggests that its proposal is negotiable pursuant to the Authority's holding with respect to Union Proposal 5 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980). B. Analysis The Authority finds Union Proposal 6 to be to the same effect as the proposal held negotiable in the cited Internal Revenue Service case. In the cited case, the Authority determined that the proposal merely required that management validate its selected measurement techniques by application of other, established observation methods. As with the Internal Revenue Service proposal, the disputed proposal in this case does not purport to interfere with the Agency's selection of evaluation methods, nor does it preclude management's taking personnel actions based on application of those methods. Further this proposal likewise does not seek negotiation over critical elements or performance standards. The primary thrust of the proposal is to assure the validity and objectivity of management's selected measurement techniques. A similar objective was found to be a negotiable "appropriate arrangement" in Office of Personnel Management where Union Proposal 5 sought to require management to apply the performance standards it had established in a fair and equitable manner. The proposal therefore was held to be within the scope of section 7106(b)(3) of the Statute. C. Conclusion Therefore, based on the reasoning in the cited Internal Revenue Service and Office of Personnel Management cases, Union Proposal 6 constitutes a negotiable appropriate arrangement in accordance with section 7106(b)(3) of the Statute for employees adversely affected by management's exercise of reserved rights. IX. Union Proposal 7 Employees who deal with claimants/beneficiaries whose primary language is not English, will not be disadvantaged by their less frequent use of Direct Contact and lack of Service Observation. A. Position of the Union The Union explains that telephone contacts with clients whose primary language is not English are less frequent than with English speaking clients because of the communication difficulties involved. Consequently, management's opportunity to use its telephone monitoring technique in evaluating employees dealing with non-English speaking clients is reduced. Therefore, according to the Union, the proposal is intended to protect employees who, because of the nature of the work assigned them, do not provide management with the opportunity to employ telephone monitoring to the same extent that it is used in evaluating other employees. B. Analysis The Authority finds that Union Proposal 7 deals with consequences arising from the nature of the work assigned. That is, the proposal requires management to take into consideration the fact that there will be reduced opportunities to use telephone monitoring as a method of performance evaluation when it assigns employees to work with clients who communicate poorly in English. Hence, the proposal is similar in purpose and effect to the portion of Union Proposal 2 in American Federation of Government Employees, AFL-CIO; Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) which required that agency performance standards "make allowances for factors beyond the control of the employee." The Authority found that the quoted part of the proposal was merely a more specific description of the "fair and equitable" criterion enunciated in Office of Personnel Management (3 FLRA 784) and "would apply only in the context of the application to an employee of performance standards established by management." Therefore, the Authority concluded that the "allowance" requirement was negotiable as an "appropriate arrangement" for employees adversely affected by management's exercise of a reserved right. C. Conclusion Based on the reasons and cases cited in Federal Deposit Insurance Corporation, the Authority concludes that Union Proposal 7 is within the duty to bargain pursuant to section 7106(b)(3) of the Statute. X. Union Proposal 8 In no case will an employee's utilization of any telephone designated pursuant to #9 (of the memorandum) be construed as agreement with or consent to Service Observation/Monitoring of telephones. A. Position of the Union According to the Union, the telephones in question are those designated by management for monitoring in connection with evaluating employee performance. The Union states that the Agency is required, pursuant to its own regulations, to obtain employee consent prior to each instance of monitoring those telephones. The Union states that the proposal's purpose is to prevent an employee's use of the designated telephones from being construed as consent to monitoring undertaken in violation of the collective bargaining agreement, law, rule or regulation. The Union points out that the proposal does not authorize employees to refuse to participate in monitoring as a performance evaluation technique nor does it insulate employees from discipline for refusing to give the required consent to telephone monitoring. B. Analysis Based on the Union's explanation, it is clear that Union Proposal 8 is in no way intended to impede the Agency's use of telephone monitoring as a tool in measuring employee performance or to shield employees from discipline. Rather, the proposal's sole purpose is to preserve the right to consent to telephone monitoring granted to employees and the Union by their negotiated agreement, by the Agency itself or by law. C. Conclusion The Authority finds that Union Proposal 8 does not interfere with rights reserved to management under the Statute and the proposal does not appear to be nonnegotiable on any other ground. Consequently, the proposal is within the Agency's duty to bargain. XI. 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 Proposals 1, 3, 4, 5, 6, 7, and 8. /2/ IT IS FURTHER ORDERED that the petition for review as it relates to Union Proposal 2 be, and it hereby is, dismissed. Issued, Washington, D.C., September 10, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Random House College Dictionary (1973) defines "courtesy" in pertinent part, as follows: 1. Excellence of manners of social conduct; polite behavior. 2. A courteous, respectful, or considerate act or expression. (2) In finding these proposals within the duty to bargain, the Authority makes no judgments as to their merits.