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52:0521(48)NG - - AFGE, Local 1687 and VA Medical Center, Mountain Home, TN - - 1996 FLRAdec NG - - v52 p521

[ v52 p521 ]
The decision of the Authority follows:

52 FLRA No. 48





LOCAL 1687










October 30, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons that follow, we find that the proposal is not within the duty to bargain because it impermissibly affects the exercise of management's rights to direct employees and assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute and the record does not establish that it is an appropriate arrangement.

II. The Proposal

The Union proposes that the performance standard for pharmacy technicians remain at filling 240 outpatient prescriptions for the evening shift.

III. Positions of the Parties

The Union contends that this proposal constitutes an appropriate arrangement for employees who will be adversely affected by the Agency's action in increasing the number of prescriptions that pharmacy technicians are required to fill on the evening shift from 240 to 300. The Union asserts that the Agency's requirement will increase the likelihood of errors in filling prescriptions for medications.(1) The Union did not file a response to the Agency's statement of position.

The Agency argues that this proposal impermissibly interferes with management's rights "to assign and to direct employees."(2) Statement of position at 2. Additionally, the Agency asserts that the Union's claim that this proposal is negotiable as an appropriate arrangement is without merit.

IV. Analysis and Conclusions

A. Background and Meaning of the Proposal

The Union submitted this proposal in response to the Agency's plan to increase the performance standard of pharmacy technicians for productivity from 240 to 300 prescriptions per evening shift. The proposal requires the Agency to maintain the status quo with respect to the performance standard for productivity.

B. The Proposal Affects Management's Rights to Direct Employees and Assign Work

The Authority has long held that the establishment of critical elements and performance standards is among the ways that management supervises employees and determines the quantity, quality, and timeliness of work required of employees and, consequently, that it constitutes an exercise of management's rights to direct employees and assign work. See, e.g., American Federation of Government Employees, Local 1164 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Worcester, Massachusetts, 49 FLRA 1408, 1414 (1994) (SSA, Worcester); National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775-76 (1980) (Public Debt), aff'd 691 F.2d 553 (D.C. Cir. 1982). It is also well established that proposals that restrict an agency's authority to determine the content of performance standards affects the exercise of management's rights to direct employees and assign work. See, e.g., SSA, Worcester, 49 FLRA at 1414.

This proposal determines the content of a performance standard by prescribing the quantity of work specified in the standard. Consequently, the proposal impermissibly affects the exercise of management's rights to direct employees and assign work, see, e.g., Public Debt, 3 FLRA at 781, and it is outside the duty to bargain unless, as claimed by the Union, it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

C. The Record Does Not Establish That the Proposal Is an Appropriate Arrangement

The approach for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that approach, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. The alleged arrangement must be "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management's right(s). E.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part). If the proposal is an arrangement, the Authority then determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33.

The Union contends that this proposal addresses the adverse effects of the increased productivity requirements. The only support for this contention that the Union provides are statements that: (1) pharmacy technicians at other Agency facilities are not required to fill more than 240 prescriptions during the 8-hour evening shift; and (2) the new productivity requirements will increase the probability of errors in dispensing medication. However, these statements are insufficient to establish that the proposed increase in productivity requirements would adversely affect employees.

The imposition of, or change in, work requirements does not per se adversely affect employees. See, e.g., West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990) (West Point), quoting Overseas Education Association, Inc. v. FLRA, 876 F.2d 960, 973 (D.C. Cir. 1989) (OEA v. FLRA) ("Under section 7106(b)(3), '[t]he question whether employees are adversely affected by an exercise of a reserved management right necessitates close analysis of the relevant facts. Not every change in work requirements, or every added burden of job performance, will present an occasion for Section 7106(b)(3) collective bargaining.'"). That is, we must "examine the relevant facts [in each case] to measure the impact of management's imposition of, or changes in, job requirements of unit employees to determine whether the employees are adversely affected by the exercise of management's right[s] . . . ." West Point, 34 FLRA at 1012.

The record in this case does not provide sufficient facts for us to measure the effect of the change in work requirements on unit employees for the purpose of determining whether employees are adversely affected by the increase in the productivity standard. See OEA v. FLRA, 876 F.2d at 973 ("Depending upon the circumstances, there may be no impact at all, as when new performance levels are already maintained by employees. There may be some impact, but only de minimus [sic], or such impact as there will be does not affect employees 'adversely,' as when an elimination of idle or unproductive time is all that occurs. On the other hand, a performance standard may be so high, or a redefinition of job elements so radical, that additional burdens of a substantial character are heaped on employees."). Here, for example, the record provides no description of what is involved in the task of filling prescriptions insofar as a pharmacy technician is concerned and no basis for determining how burdensome the increased productivity requirement would be.

Accordingly, we find that the record in this case does not establish that the employees to whom this proposal applies are adversely affected by the exercise of management's rights to direct employees and assign work. Thus, we find that the record in this case does not establish that this proposal meets the first part of the KANG standard and we are unable to conclude that it constitutes an arrangement for employees who are adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3). See American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Oceanside, California, 49 FLRA 279, 291 (1994). Consequently, we conclude that the proposal is outside the duty to bargain.

V. Order

The Union's petition for review is dismissed.

(If blank, the decision does not have footnotes.)

1. Prior to filing the petition in this case, the Union argued to the Agency that the proposal concerned a means of performing work within the meaning of section 7106(b)(1). However, the Union has not made the same claim in its pleadings before the Authority. Consequently, we will not consider that argument.

2. Based on the cases that the Agency cites in support of this claim, we construe the Agency's reference to "assign" as regarding the right to assign work under section 7106(a)(2)(B) as contrasted with the right to assign employees under section 7106(a)(2)(A).