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28 FLRA NO. 89


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 32, AFL-CIO

              Union

      and

OFFICE OF PERSONNEL MANAGEMENT

                       Agency

Case No. 0-NG-1047

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 16 proposals dealing with the Agency's performance appraisal ("review") system. 1

II. Proposals 1 and 2

Proposal 1

The review system will in all aspects be fair and consistent within sections and from section to section. No section will be exempt from review nor will any employee be exempt from review. (submitted November 22, 1983, as Proposal 2)

Proposal 2

The review system will be fair and consistent. (submitted May 30, 1984, as Proposal 12) 

A. Position of the Agency 2

The Agency contends that the proposals violate management's rights to assign work and direct employees, under section 7106(a)(2)(A) and (B), and to determine mine the methods and means of performing work, under section 7106(b) of the Statute.

B. Analysis and Conclusion

The Authority has consistently found that proposals which substantively restrict management's ability to identify critical elements of a position and establish performance standards are nonnegotiable because they conflict with management's right to assign work and direct employees under section 7106(b)(2)(A) and (B) of the Statute. For example, see American Federation of Government Employees, Locals 3748 and 3365, AFL - CIO and Agricultural Research Service, Northern States Area and Department of Agriculture, Forest Service, Black Hills National Forest, 20 FLRA 495 (1985), aff'd sub nom. AFGE Locals 3748 and 3365 v. FLRA, 797 F.2d 612 (8th Cir. 1986). In that case, the Authority found a proposal requiring performance standards to be "fair, objective, job-related, and measurable" to be nonnegotiable because it was inconsistent with management's rights to assign work and direct employees. In affirming that decision, the Court of Appeals for the Eighth Circuit stated at 797 F.2d. at 618 as follows:

To allow the Union to negotiate over the meaning of such a broad and subjective term as "fair," for example, would effectively open the door to bargaining over any aspect of performance standards. Contradicting their expressed wish to affect only the application of performance standards, the Union is attempting to gain a foothold in territory that is management's exclusively, i.e., fashioning the content of performance standards.

The proposals in this case require that the review system be "fair and consistent" both within sections and from section to section throughout the Agency. Nothing in the wording of the proposals indicates that the requirements are limited to the application of the system rather than the content of the system itself. Proposals restricted to the application of critical elements and performance standards have been found negotiable as appropriate arrangements under section 7106(b)(3). See, for example, American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 3 FLRA 784 (1980). As noted, however, this proposal does not concern the application of the elements and standards; it concerns the content of the review system. Thus, the decision in Office of Personnel Management is distinguishable.

Like the proposal in Agriculture Research Service, the proposals here would effectively determine the content of critical elements and performance standards. Accordingly, for the reasons stated in Agriculture Research Service, the proposals are inconsistent with management's rights to assign work and direct employees. See also American Federation of Government Employees, AFL - CIO, Local 1603 and U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA No. 60 (1986).

The Agency provides no support for its assertion that the proposals conflict with section 7106(b)(1) and they do not otherwise appear to conflict with this section. Therefore, this Agency contention must be denied.

Fort the reasons provided above, Proposals 1 and 2 are not within the duty to bargain because they directly interfere with management's right to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute.

III. Proposal 3

The methodology of review for quality control purposes is as follows: Management will choose which work is reviewed and the percentage of work which is reviewed based on workload considerations on a weekly basis. Exceptions to this practice may be made by  management in response to the following types of things: a small workload where all work for the date will be reviewed; issuance of a Quality Assurance Report or Inspector General Report that pinpoints a problem area in a section. Exceptions mean management may change the type and percentage of work reviewed mid-week. This subsection does not apply to reviews for criminal investigation purposes. (submitted December 14, 1983, and again on May 30, 1984, as Proposal 3b)

A. Position of the Agency

The Agency contends that the proposal is outside the scope of bargaining because it interferes with management's rights under section 7106(a)(2)(A) and (B) to assign work, direct employees, and conduct performance appraisals in accordance with law and Government-wide regulations. In addition, the Agency asserts that the proposal interferes with its right to determine its internal security practices, under section 7106(a)(1).

B. Analysis and Conclusion

Management's rights under section 7106(a)(2)(A) and (B) encompass the right to determine the quantity, quality and timeliness of employees' work. See, for example, U.S. Department of Treasury, Internal Revenue Service, Philadelphia Service Center, and National Treasury Employees Union and NTEU, Chapter 71, 16 FLRA 749, 767 (1984); American Federation of Government Employees, AFL - CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, 12 FLRA 17 (1983); National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Furthermore, these management rights include the right to determine the aspects of employees' work to be evaluated in preparation of employee performance appraisals. See Department of the Treasury, Internal Revenue Service, Midwest Regional Office, Chicago, Illinois, 16 FLRA 141 (1984) ; American Federation of Government Employees, AFL - CIO, Local 3004 and Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA 723, 724 (1982).

Proposal 3 is to the same effect as Proposals 2-6 found nonnegotiable in National Federation of Federal Employees Local 1454 and Veterans Administration, 26 FLRA No. 99 (1987). Those proposals in that case were concerned with how  the agency would sample employees' work to measure the timeliness of the employees' work performance. As such, we found that the proposals directly interfered with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

Since Proposal 3 here restricts management in changing the type and percentage of work reviewed for performance appraisal purposes, it is, likewise, outside the duty to bargain.

In connection with its contention that the proposal interferes with its right to determine its internal security practices, the Agency asserts that the proposal would prevent it from insuring that Government funds are not illegally expended or diverted due to negligence or fraud. However, the proposal specifically states that it would not apply to reviews for criminal investigation purposes. In the absence of evidence in support of its allegation, we find the Agency's position in this regard to be without merit.

Based on the foregoing analysis, we conclude that Proposal 3 interferes with the Agency's rights to direct employees and assign work, under section 7106 (a)(2)(A) and (B) of the Statute. Therefore, it is outside the duty to bargain. The proposal does not violate the Agency's right to determine its internal security practices, under section 7106(a)(1) of the Statute.

IV. Proposal 4

(a) Employees will be provided clearly written guidance and reference materials on (1) proper completion of forms; (2) correct application of laws, regulations and procedures; (3) accurate information to annuitants; (4) accurate, complete, and grammatical correspondence; and (5) the degree of failure which will constitute a material error.

(b) No error charging violation of such guidance will be charged within the first 30 days of the issuance of guidance;

(c) The definition of material error will be consistent within and among work units,  taking account of actual differences in the work assignments. (submitted December 14, 1983, and again on May 30, 1984, as Proposal 2)

A. Position of the Agency

The Agency contends that the proposal violates its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees, to assign work, and to establish performance standards.

B. Analysis and Conclusion

The Authority observed 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, 699 (1984) that proposals which merely obligate management to comply with the statutory requirement that performance standards and critical elements be communicated to employees were within the duty to bargain. See also American Federation of Government Employees, AFL - CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, Baltimore Maryland, 25 FLRA No. 2 (1987) (Proposal 3(A)); American Federation of Government Employees, AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1986) (Proposal 5), petition for enforcement filed sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. Mar. 9, 1987). Such proposals are within the duty to bargain in that they do not interfere with an agency's discretion to identify job elements and to establish performance standards for employees' positions. Rather such proposals would, in essence, have the effect of requiring an agency to comply with the legal requirement in 5 U.S.C. 4302 that performance standards be communicated to employees. We find that part (a) of this proposal would merely require the Agency to provide its employees with the guidance and reference materials necessary to perform their jobs in a satisfactory manner. In our view, the requirement that performance standards be communicated to employees includes a requirement to supply employees with information necessary for the satisfactory achievement of those standards.

The Authority has previously determined that proposals which require an agency to provide formal training to bargaining unit employees are inconsistent with management's right to assign work under section 7106(a)(2)(B) of  the Statute. For example, see 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). However, contrary to the Agency's contention that part (a) of the proposal interferes with its right to assign work because it requires management to provide training, we find that a requirement to provide written guidance and reference materials necessary for the satisfactory performance of an employee's job is not an assignment of work to the employee. Therefore, this Agency contention must be denied.

Part (b) of the proposal prohibits management from charging errors within the first 30 days of the issuance of the guidance stated in part (a). This part of Proposal 4 is to the same effect as the portion of Provision 7 found nonnegotiable in American Federation of Government Employees, AFL - CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA No. 26 (1987) because it also limited management's ability to evaluate employees for a specified period of time. Provision 7 in that case prevented management from evaluating employees for the first 120 days after a reassignment. In finding Provision 7 nonnegotiable we stated that such a proposal did not permit management to appraise employees on their ability to master new job requirements. Thus, we held that such a restriction on management's evaluation of employee performance directly interfered with its rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Consequently, for the reasons more fully expressed in Department of Health and Human Services, Social Security Administration, we find that as this part of Proposal 4 also prevents management from evaluating employees on their ability to master new job requirements, it directly interferes with management's rights to direct employees and to assign work under section 7106(a) of the Statute.

The Agency contends that part (c) of the proposal, which would require the definition of material error to be consistent within and among work units, and take into account actual differences in work assignments, is nonnegotiable because it violates management's right to appraise performance. We agree. In American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Ordinance Missile and Munitions Center and School (USAOMMCS), Redstone Arsenal, Alabama,.2 FLRA No. 12 (1987) (Provision 1) we stated that the provision would preclude management's determination that critical elements of similar positions under a common job description should not be the same because, in management's judgment, the different circumstances relating to work performance in those positions warrant weighing job elements differently and, thus, establishing different critical elements. Part (c) of this proposal would only permit the definition of material error to vary in order to account for actual differences in work assignments. It does not permit management to apply varying definitions of material error, as it deems appropriate, on the basis of other circumstances, such as the work performance of employees. Therefore, it interferes with the Agency's right to determine the content of performance standards.

For the reasons and cases cited in the foregoing analysis, we conclude that part (a) of Proposal 4 is within the duty to bargain. Parts (b) and (c), however, would require negotiations over the content of performance standards, thereby interfering with management's rights to direct employees and to assign work, under section 7106(a)(2)(A) and (B). Therefore, parts (b) and (c) of the proposal are outside the Agency's duty to bargain.

V. Proposals 5 and 6

Proposal 5

Samples, audits or spot checks of all aspects of work will be spread as evenly as possible throughout the period for employee performance appraisals in order to be as fair and consistent as possible. (submitted November 22, 1983, as Proposal 4)

Proposal 6

If management performs audits to determine any aspect of any element under performance standards, those audits or samples will be done at least once per month for the entire period of the appraisal to assure consistency. (submitted December 14, 1983, and again on May 30, 1984, as Proposal 5)  A. Position of the Agency The Agency contends that these proposals interfere with its rights to direct employees and to assign work, under section 7106(a)(2)(A) and (B) of the Statute.

B. Analysis and Conclusion

These proposals, in essence, would require supervisors who audit or review any aspects of the work performance of their employees to do so at least once per month, or, in the case of the first proposal, to spread such audits "as evenly as possible throughout the period for employee performance appraisals." As stated above in connection with Proposal 3, we previously determined in Veterans Administration, 26 FLRA No. 99 (1987) that proposals which concerned how the agency would sample employees' work to measure the timeliness of the employees' work performance directly interfered with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. As these proposals are intended to favor a particular sampling technique to measure an employee's work performance they interfere with management's rights and, are therefore, outside the duty to bargain.

VI. Proposals 7, 8 and 9

Proposal 7

All decisions regarding errors will be fair and consistent and employees are encouraged to discuss any error charged to them without fear of reprisal, with the team leader and section chief. (submitted November 22, 1983, as Proposal 6) Proposal 8

(a) All decisions regarding material errors will be fair and consistent and employees can discuss any error charged to them without fear of reprisal with the team leader. (submitted December 14, 1983, as Proposal 8a)

Proposal 9

(a) All decisions regarding material errors will be fair and consistent and employees can  discuss any error charged to them without fear of reprisal with the team leader. If the dispute cannot be settled to the employee's satisfaction, the employee can discuss the matter, without fear of reprisal, with the management official who will make the final decision for the agency. (submitted May 30, 1984, as Proposal 6)

A. Position of the Agency

The Agency contends that these proposals violate management's rights to direct employees and to assign work, under section 7106(a)(2)(A) and (B) of the Statute.

B. Analysis and Conclusion

The Agency argues that the proposals deny management the right to delegate to individual supervisors discretion as to how to deal with the commission of errors by employees and dictate to management how it must organize itself to do business. As stated above in reference to Proposals 1 and 2, the Authority has consistently held that proposals which substantively restrict management's ability to identify critical elements of a position and establish performance standards are nonnegotiable because they conflict with management's rights to assign work and direct employees under section 7106(b)(2)(A) and (3) of the Statute. For example, see Black Hills National Forest, 20 FLRA 495 (1985). In this case, these proposals have the effect of requiring fairness and consistency in the elements and standards themselves. Thus, they interfere with management's right to direct employees and assign work under section 7106(b)(2)(A) and (B) of the Statute. Accordingly, we conclude that Proposals 7, 8 and 9 are outside the duty to bargain.

VII. Proposal 10

The assignment of work to employees as it relates to the review system will at all times be done in a manner that is fair and consistent. For example, employees will suffer no adverse impact from work caught in a review backlog. Performance standards and appraisals will take into consideration the relative difficulty of the work subject to review. (submitted on November 22, 1983 as Proposal 11)  A. Position of the Agency

The Agency contends that the proposal interferes with its rights to direct and to discipline employees and to assign work, under section 7106(a)(2)(A) and (B) of the Statute.

B. Analysis and Conclusion

In American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 19 FLRA 93 (1985) (Proposals 1, 2, and 3), the Authority determined that three proposals, each describing a specific work situation "outside their (the employees') control," and seeking to insulate the employees from penalties attributable to such circumstances, were nonnegotiable. The Authority found that the proposals there were not limited to the assessment in a grievance arbitration of the application of standards established by management, but, rather, would have permitted arbitral review of whether the performance standards themselves made the appropriate allowances for the situations described, and, hence, restricted management's authority to direct employees and assign work.

While the first sentence of the proposal in this case is couched in terms of a general, nonquantitative requirement of fairness and consistency, when read in the context of the proposal as a whole, it has the same effect as the proposals found outside the duty to bargain in Office of Personnel Management. That is, rather than establishing a general, nonquantitative requirement by which the application of management-developed performance standards could be evaluated in a subsequent grievance proceeding, the proposal would permit arbitral review of work assignments and would permit arbitrators to substitute their judgment in these matters for that of the Agency. Moreover, the third sentence of the proposal, which states that performance standards themselves will take into consideration the relative difficulty of the work subject to review, would clearly restrict management's authority to establish performance standards. Compare, for example, American Federation of Government Employees, AFL - CIO, Local 2849 and Office of Personnel Management, New York Regional Office, 7 FLRA 571 (1982) (Proposal 3) (where the Authority found that, in the circumstances and context of that case, review by an arbitrator under the proposal would have determined only whether the application of performance standards, not the performance standards themselves established by management, made allowance for factors beyond an  employee's control, and therefore held that the proposal was within the duty to bargain). Accordingly, for the reasons stated above, and based on Office of Personnel Management, Proposal 10 is inconsistent with management's rights to assign work and to direct employees under section 7106(a)(2)(A) and (B) of the Statute, and, therefore, is outside the duty to bargain. In view of this decision it is unnecessary to address the Agency's other contention.

VIII. Proposal 11

Employee work records will not be affected by errors which are not discovered until a review by Review and Control or by Quality Assurance. (submitted December 14, 1983, and again on May 30, 1984, as Proposal 2)

A. Position of the Agency

The Agency contends that the proposal violates management's right to assign work and to direct employees through the establishment of performance standards, pursuant to section 7106(a)(2)(A) and (B) of the Statute.

B. Analysis and Conclusion

The proposal on its face and according to the Agency's uncontroverted statement of its effect would absolve employees from the consequences of their mistakes in certain circumstances. This proposal has the same effect as Proposals 1-6 found nonnegotiable in American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, Social Security Administration, 15 FLRA 909 (1984). The Authority determined that the proposals there, while purportedly informing employees of the nature and gravity of errors in the performance of their work, actually would have had the effect of defining errors and thus prohibiting management from considering certain mistakes in evaluating the accuracy of work. Thus, the proposals were found to interfere with management's establishment of performance standards in violation of section 7106(a)(2)(A) and (B) of the Statute. Similarly, this proposal would prohibit management from considering certain errors, that is, those not discovered until a review by the Quality Assurance section, in evaluating the accuracy  of employees' work. Therefore, for the reasons stated more fully in Social Security Administration, at 912-13, the instant proposal is inconsistent with management's rights, pursuant to section 7106(a)(2)(A) and (B) of the Statute and is outside the obligation to bargain. See also American Federation of Government Employees, Local 1822, AFL - CIO and Veteran Administration Medical Center, Waco, Texas, 9 FLRA 709, 711 (1982).

IX. Proposal 12

Unless performance standards are established for project work, it will be considered non-measured work. Time spent on this and other non-measured work will not be considered as having been spent on measured work. (submitted December 14, 1983, as Proposal 6 and again on May 30, 1984, as Proposal 5)

A. Position of the Agency

The Agency contends that this proposal is outside the duty to bargain because it violates its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

B. Analysis and Conclusion

The Agency asserts that this proposal would require negotiations over the content of employee duties and functions to be included in performance appraisals and would obligate management to negotiate over its determinations to direct and assign work to employees.

The Union did not file a response to the Agency's assertions and did not in any other way explain the meaning of the proposal. The proposal uses the terms "project work" and "measured work" without defining their meaning. We are unsure of the meaning of these terms in the context of this proposal and the Union has not provided any clarification. The proposal, therefore, does not set forth specific and sufficient information to enable us to reach a reasoned determination on its negotiability under law and regulation. Accordingly, the petition for review of Proposal 12 does not meet the conditions for review prescribed in section 7117(c) of the Statute and section 2424.1 of our Rules and Regulations. See Fort Knox Teachers Association and Fort Knox Dependent's Schools, 27 FLRA No. 80 (1987) (Proposal 1). The Union's petition for review of Proposal 12 is dismissed. 

X. Proposal 13

Quantity and quality measures will be a 13 week moving average. Excluded from the covered time are (1) the first 120 days in the job; (2) the first 120 days in the division; (3) time during non-production status; (4) the first two weeks after a non-production period of two weeks or longer; (5) the first two weeks in a different section, block or type of work within a division. During periods of performing non-measured work, employees will not be credited with work processed or charged for time expended. (submitted December 14, 1983, as Proposal 10 and again on May 30, 1984, as Proposal 7)

A. Position of the Agency

The Agency contends that Proposal 13 is outside the duty to bargain because it interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

B. Analysis and Conclusion

This proposal would expressly limit management's ability to evaluate employees in a variety of circumstances set out in the proposal. As we previously stated with respect to Part (b) of Proposal 4 in this case, under our holding in Department of Health and Human Services Social Security Administration, 28 FLRA No. 26 (1987), management's right to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute includes the right to evaluate employees on their ability to master new job requirements. Thus, for the reasons more fully stated in Department of Health and Human Services, Social Security Administration, we find that as this proposal also prevents management from appraising employee performance in the situations listed, it directly interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

XI. Proposal 14

Reviewers will be subject to the regular production system when performing more than 45% of the regular work. The agency may adopt a reasonable alternative system for measuring  the production of reviewers in other situations. (submitted December 14, 1983, as Proposal 14 and again on May 30, 1984, as Proposal 8)

A. Position of the Agency

The Agency contends that the proposal interferes with its rights under section 7106(a)(2)(A) and (B) to direct employees, assign work, and appraise employees' performance.

B. Analysis and Conclusion

The proposal requires the Agency to adopt a separate set of performance standards for employees who spend less than 45 percent of their productive time on regular work. In National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 6 FLRA 9 (1981), the Authority found that a proposal which would have required that performance standards be the same for employees having the same position description was outside the duty to bargain, pursuant to section 7106(a)(2)(A) and (B) of the Statute. The Authority reasoned that the proposal would prevent the determination that the content of performance standards should be different even if the circumstances relating to the jobs and work performance of such employees would warrant the application of different standards. The proposal in this case would have the reverse effect, but its substantive limitation on the Agency's right to establish performance standards is the same. The proposal would require the Agency to establish different performance standards for certain employees even if the Agency determines that the performance standards should be the same as those employees who spend more than 45 percent of their productive time on regular work. The proposal would prevent management from exercising its statutory authority to establish performance standards, and, thus, pursuant to the Agency's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, is outside the duty to bargain.

XII. Proposal 15

The performance standards will take account of the fact that employees are not responsible for delays and failures of the automated support systems. (submitted December 14, 1983, as Proposal 15 and again on May 30, 1984, as Proposal 10). 

A. Position of the Agency

The Agency contends that the proposal interferes with its rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work.

B. Analysis and Conclusion

The proposal, by its express terms, describes a specific work situation, that is, delays and failures of the automated support systems, and seeks to insulate employees from penalties attributable to the occurrence of such a circumstance. In American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 19 FLRA 93 (1985) (Proposals 1, 2, and 3), the Authority determined that the proposals there, which sought an identical result, would have provided for arbitral review of the content of performance standards, and would have permitted arbitrators to substitute their judgment for that of the agency. The proposals there restricted management's authority to establish performance standards in violation of section 7106(a)(2)(A) and (B) of the Statute. Based on Office of Personnel Management, we conclude that, Proposal 15 in this case is also outside the duty to bargain.

XIII. Proposal 16

Timeliness of work will begin as of the date the employee is assigned to perform the work in a timely manner. (submitted December 14, 1983 as Proposal 16 and again on May 30, 1984 as Proposal 11)

A. Position of the Agency

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.

B. Analysis and Conclusion

According to the Agency's uncontroverted statement as to the meaning and effect of this proposal, it would prevent management from considering, for performance appraisal reasons, time spent by employees on the job before actual work assignments are made, and would allow employees to wait for an assignment rather than seek out their supervisors to ask for work. The Authority determined that a proposal, which prohibited an agency from counting time lost due to the unavailability of needed facilities against employees when  evaluating their work performance, was outside the duty to bargain because it would have permitted employees to choose to wait for the facilities to become available when alternative means of performing the work existed. American Federation of Government Employees, AFL - CIO, Local 923 and Department of Health and Human Services, Social Security Administration, 12 FLRA 17 (1983) (Proposal 1). As that proposal would have required the agency to negotiate the content of performance standards, specifically the quantity and timeliness of the employees' work product, it interfered with management's section 7106(a)(2)(A) and (B) rights to direct employees and to assign work. Similarly with respect to this proposal we conclude that it would require the Agency to negotiate concerning the timeliness of the employees' work product, and, hence, on the content of performance standards. It conflicts with management's rights under section 7106(a)(2)(A) and (B) of the Statute and is outside the duty to bargain. See also National Treasury Employees Union and NTEU, Chapter 72 and Internal Revenue Service, Austin Service Center, 11 FLRA 271 (1983).

XIV. Order

The Agency must negotiate upon request or as otherwise agreed to by the parties concerning part (a) of Proposal 4. 3 The petition for review as it relates to the remaining proposals is dismissed.

Issued, Washington, D.C., August 24, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 The 16 proposals in this case are a consolidation of proposals submitted by the Union in bargaining on November 22, 1983, December 14, 1983, and May 30, 1984, and declared nonnegotiable by the Agency in a letter dated August 17, 1984. In this case we have grouped the proposals in a manner which assures their complete consideration and also eliminates the needless repetition of proposals whose language remained identical throughout the separate occasions when they were submitted.

Footnote 2 The Union made no substantive arguments on any of the disputed proposals in its Petition for Review and further, did not file a Reply Brief in this case.

Footnote 3 In deciding that part (a) of Proposal 4 is within the duty to bargain, we make no judgment as to its merits.

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