[ v26 p612 ]
The decision of the Authority follows:
26 FLRA No. 76 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32 Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. 0-NG-957 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 presents issues concerning the negotiability of three proposals. The proposals were introduced during bargaining over the impact and implementation of the Agency's new Annuitant Service Division Training Memo. For the reasons stated below, we find Proposal 1 to be negotiable and Proposals 2 and 3 to be nonnegotiable. II. Proposal 1 Employees will be given at least 2 hours of non-measured work time to set up their desks and adjust work patterns in accordance with these new instructions, including employees who have already done so. A. Positions of the Parties The Agency contends that the proposal interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. According to the Agency, Proposal 1 in this case is not materially different from Proposal 2, found to be nonnegotiable, in American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Service, Social Security Administration, 12 FLRA 17 (1983). The Union characterizes the proposal as an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees who will lose productive time because they must set up their desks in a new way. It contends that the holding in AFGE, Local 1782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983), suports the proposal's negotiability. B. Analysis 1. Violation of Management Rights to Direct Employees and to Assign Work While the actual operation of this proposal is not set out in the record, it is clear that the two hours set aside for employees to rearrange their desks, etc., would not be factored or otherwise included in a calculation of the timeliness and quantity of an employee's work product. Thus, and in agreement with the Agency, we find this proposal is to the same effect as Proposal 2 found nonnegotiable in Department of Health and Human Services, Social Security Administration, 12 FLRA 17 (1983). Proposal 2 in that case obligated the agency to grant extra time or to not count certain time in a determination of the quantity and timeliness of an employee's work product. The Authority concluded that as the proposal required negotiation on the content of performance standards, specifically the quantity and timeliness of an employee's work product, it interfered with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work. In like manner Proposal 1 in this case also interferes with management's rights to direct employees and to assign work. See also National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 23 FLRA No. 36 (1986). 2. An "Appropriate Arrangement" under Section 7106(b)(3) Although we find that Proposal 1 violates management rights, we need not conclude that it is nonnegotiable if we find it to be an "appropriate arrangement for employees adversely affected" by the exercise of those management rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). For the following reasons we find that the proposal is within the duty to bargain because it does not excessively interfere with management's rights to direct employees and to assign work. The proposal is intended to be an "arrangement" for employees adversely affected by management's exercise of its rights to direct employees and to assign work under section 7106(a)(2)(A) and (B). The Agency makes no claim, nor is it otherwise evident from the record, that it is unnecessary to rearrange desks in order to comply with the revised training memo. The Union asserts that rearranging desks is a preliminary requirement to carrying out assignments in conformity with the new training memo. See Union Reply Brief, n.2. The proposal deals with this requirement, which in nonproductive time in terms of employees' performance appraisals, by excluding the time devoted to rearranging desks from the time available for productive work. If the time sought by the proposal is not granted, the employees' production would be adversely affected. They would, of necessity, have to devote production time to the tasks of rearranging their desks. The inevitable consequence would be a decrease in the employees' level of performance. The remaining question is whether the burden imposed on management's rights by the proposal is excessive when weighed against the proposal's benefit to employees. We conclude that, on balance, the benefit accuring to the concerned employees outweighs the detriment imposed on management's rights to direct employees and to assign work. As has been noted, the proposal provides for the assignment of a task necessitated by management's revision of its operating procedures. The Agency does not contend that the two hours required by the proposal are excessive. If, however, the Agency views the time allocation as excessive, a position not stated in the record, that issue is appropriate for resolution during negotiations or, if necessary, during impasse proceedings. The proposal also appears to provide for a more accurate assessment of employees' performance. The time devoted to rearranging desks is time during which employees cannot be engaged in producing the final products by which their performance is measured. To include such time in the hours available for production of work for performance appraisal purposes would be a misrepresentation detrimental to the employees involved, and would not be an accurate measure of employee's ability or motivation. Moreover, the situation addressed by the proposal is not one for which the employees are responsible since the decision to revise work procedures was made by management within its sole discretion. The task addressed by the proposal is assigned by management and is nonrecurring. The Union only seeks to establish that the existing standards do not measure employees' performance during execution of this one-time, short term task. Consequently, we conclude that the proposal does not excessively interfere with the development of performance standards. C. Conclusion The burden imposed on management by Proposal 1 is insubstantial when weighed against the potential benefit accruing to employees. Consequently, as the proposal does not excessively interfere with the rights to direct employees and to assin work it is a negotiable "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. III. Proposal 2 Employees will suffer no adverse impact for failure to follow any aspect of the training memo when the circumstances are outside their control. A. Position of the Parties The Agency contends that Proposal 2 requires bargaining over the content of performance standards. Therefore, the proposal violates the reserved rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The Union describes its proposal as an "arrangement" for employees adversely affected by management's decision to prescribe new operating procedures. The proposal, according to the Union, also ensures that management will take adverse action only for such cause as will promote the efficiency of the service. B. Analysis Violation of Management Rights to Direct Employees and to Assign Work Proposal 2 in this case is to the same effect as Proposals 1-3 found nonnegotiable in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA 93 (1985). In that case each of the three proposals described a specific work situation which was "outside their (the employees') control" and sought to insulate the employees from penalties attributable to the occurrence of such circumstance. The Authority reasoned that under the proposals, arbitral scrutiny would extend to inquiry into whether the standards themselves made the appropriate allowances for the situations described. The Authority further found that even 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, an arbitrator could investigate whether the alternate assignments and/or the related performance standards had an adverse impact on unit employees. Thus, the Authority concluded that the proposals were inconsistent with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B). While Proposal 2 in this case does not specify a particular work situation beyond an employee's control, it does, like Proposals 1-3 in Office of Personnel Management, required employees to be insulated from penalties attributable to the occurrence of any such circumstances. Under Proposal 2 in this case, the Agency would be prevented from evaluating an aspect of employees' performance: their ability to adapt and carry out their assignments in unforeseen circumstances. This proposal would free employees from accountability for anything less than satisfactory performance in circumstances where procedures governing guidance cannot be followed. Consequently, Proposal 2 divests management of the authority to direct employees and assign work in those circumstances. Finally, the Union's claim that management action in evaluating employees in such circumstances would be inconsistent with the requirement stated in 5 U.S.C. section 7513 "only for such cause as will promote the efficiency of the service" cannot be sustained. Performance based reductions in grade and removals taken under 5 U.S.C. section 4303 are specifically excluded from the 5 U.S.C. section 7513 requirement by 5 U.S.C. section 7512(D). See also Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, 106 S. Ct. 1523 (1986), reh'g denied, 106 S. Ct. 2931 (1986). 2. The Proposal is not an Appropriate Arrangement The Union asserts that the proposal is negotiable because it "establishes an arrangement for employees adversely affected by the new procedures(.)" Presumably the Union intends that the proposal be included among those matters which are negotiable under section 7106(b)(3) of the Statute. We disagree. We cannot conclude that management's exercise of its right to revise the procedures used in accomplishing its work inevitably or inherently has an adverse affect on the employees who must employ the new procedures. Additionally, we do not find that management's content of performance standards -- which otherwise is outside the duty to bargain. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987), slip op. at 13, petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987). C. Conclusion Proposal 2 is not an "appropriate arrangement" within the meaning of section 7106 (b)(3) of the Statute because it does not concern employees adversely affected by the exercise of a management right. Rather, the proposal interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Consequently, Proposal 2 is outside the duty to bargain. IV. Proposal 3 The assignment of ASR's between blocks, types of work or sections will at all times be fair and consistent. A. Positions of the Parties Proposal 3, in the Agency's view, interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees, to assign work and to determine the personnel by which Agency operations will be conducted. Specifically, the Agency states that the proposal "seems reasonably designed to require a predictable and even distribution of ASR's (Annuitant Services Representatives) within the various blocks and sections as well as the types of work within the ASD (Annuitant Services Division). Moreover, this predictable and equitable distribution must be maintained at all times." Agency Statement of Position at 4. The Union claims that this proposal would require that the Agency not act unfairly when making assignments. The Union characterizes the Agency's position as asserting a right to make assignments of ASR's between blocks and types of work or sections unfairly and contends that the Agency's position is without support in the Statute. Unlike the previous proposals in this case, the Union does not argue that Proposal 3 constitutes an appropriate arrangement. B. Analysis In agreement with the Agency, we find this proposal mandates consistency and equality in work assignments. As such, it is to the same effect as Proposal 1 found to be nonnegotiable in National Treasury Employees Union and Internal Revenue Service, 13 FLRA 48 (1983). Proposal 1 in that case required that certain assignments be distributed among employees "on an equitable basis." The Authority noted that the proposal would prevent management from taking into account valid considerations in making work assignments and concluded that the proposal was inconsistent with the right to assign work under section 7106(a)(2)(B) of the Statute. In like manner, Proposal 3 would prevent the Agency from taking into account valid considerations such as individual judgment and reliability or work load needs within the various sections of the ASD in making work assignments. Thus Proposal 3 is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 17 FLRA 326 (1985). C. Conclusion We find that Proposal 3 is outside the duty to bargain under section 7106(a)(2)(B) because it is inconsistent with management's right to assign work. In view of this decision it is unnecessary to address the Agency's additional contentions that the proposal is nonnegotiable. V. Order The Agency must bargain upon request (or as otherwise agreed to by the parties) concerning Proposal 1. /*/ The petition for review of Proposals 2 and 3 is dismissed. The Union also requested two additional remedies in this case, specifically, that any agreement reached as a result of bargaining should be ordered to be made retroactive to the date of the contract then being negotiated and that the Agency should be ordered to not similarly refuse to bargain in the future. In support of its request, the Union claims "(t)hese are the remedies intended by Congress to be provided in cases of unlawful refusals to bargain." We reject this request. As we recently stated in Decision on Petition for Amendment of Rules, 23 FLRA No. 57, slip op. at 4 (1986), a petition for review filed sub nom. National Labor Relations Board Union v. FLRA, No. 86-1624 (D.C. Cir. Nov. 17, 1986), a requirement to provide unfair labor practice remedies in circumstances "where an agency is merely alleging -- in the absence of clear precedent to the contrary -- that a disputed proposal is nonnegotiable is contrary to the language and legislative history of the Statute as well as Authority precedent." We do note, however, that (nothing prevents the parties from agreeing to apply retroactively any agreements they reach on negotiable issues. Issued, Washington, D.C., April 21, 1987. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member /s/ Jean McKee Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding Proposal 1 to be within the duty to bargain, we make no judgment as to its merits.