[ v23 p329 ]
23:0329(43)NG
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.