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60 FLRA No. 61
OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
September 21, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
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 which follow, we find that the proposal is outside the duty to bargain and dismiss the petition for review.
Union officials who customarily use 100% official time in accordance with Article 30, Appendix D, Section A of the National Agreement will not be required to participate in AWS [automated work sampling system] for any period during which they are on union official time. Management will ensure that the prompts for such periods will be deleted from the union representatives' screen.
Petition at 10.
The proposal stems from the Agency's decision to implement a new time tracking system program. Under the new system, employees are asked at random times twice a day to key into their computer a code that describes in general terms the type of work they are performing. This differs from the previous system in which the Agency would assign an employee to go from office to office to collect this information.
The Union states that under the new AWS system an employee on official time would have to stop working on his/her computer to insert the appropriate code. Moreover, where an employee is out of the office, the computer generated queries can accumulate unless a supervisor turns the system off for that employee. As a consequence, upon returning to the office, an employee must fill in these codes in order to clear the computer of these queries prior to proceeding with other work. The Agency counters that the queries "pop up" on the computer screen, and an employee may continue to work on a project without immediately attending to the query. Statement of Position (SOP) at 7; See id. at Ex. C.
IV. Positions of the Parties
The Union argues that the proposal only operates when an employee is on "approved official time." Union's Response at 2. As such, it contends that the Agency cannot assign these employees work while they are on official time. Id. at 3.
The Union also argues that the computer prompts are unduly burdensome because employees who have been away from their desks for a period of time must respond to the AWS prompts prior to being able to work on their computers upon their return. Id. Moreover, it contends that this proposal does not excessively interfere with management's right to assign work because "[m]anagement has a right to disapprove official time requests due to work exigencies and the Union's proposal addresses only that time for which the Agency has not done so." Id. at 4.
Additionally, the Union notes that even if the Authority were to find that this proposal infringes upon the Agency's right to assign work, it is, nonetheless, negotiable. In this respect, the Union argues that if AWS constitutes work, then the Agency would have to evaluate employees during this activity. As a consequence, the Union argues that "[s]ubjecting representational activity to such use constitutes interference with protected activity, and is prohibited under government wide regulation." Id. at 6.
Moreover, the Union contends that the Agency's premise that the AWS system without the participation of these employees will result in less accurate data "is pretextual". Id. It argues that the proposal does not prohibit the Agency from collecting data under its previous system. Id. Finally, the Union reiterates that the three employees this proposal affects, when not on approved leave, are on official time and that information is already available to the Agency. [ v60 p279 ]
The Agency claims that the proposal affects its right to assign work and direct employees. SOP at 6, 11 (citing 5 U.S.C. § 7106(a)(2)(B)). It argues that "proposals which impose a substantive condition on management's ability to assign particular duties to specific Agency employees directly interfere with management's right to assign work." Id. (citing AFGE, Local 1760, 46 FLRA 1285 (1993) and AFGE, AFL-CIO, Soc. Sec. Local No. 1760, 9 FLRA 813 (1982)).
Further, the Agency states "[i]f fulltime union officials are not included in AWS, unit times will be inaccurate and management will not be able to appropriately determine the number of employees or the budget needed to accomplish the work" or the "[A]gency mission[.]" SOP at 9, 11. Accordingly, it states that "[i]f management could not exercise their statutory rights, then the ability to carry out the mission of the Agency would be adversely affected." Id. at 11.
Moreover, the Agency argues that the proposal does not constitute an appropriate arrangement. In this respect, the Agency contends that the inconvenience to employees in accounting for their time is much less than the burden placed on the Agency in having inaccurate data that it would then rely upon to determine numbers of employees and its budget to fulfill its mission. Id. It also notes that after a five day absence from work, a coordinator "can turn off the application so that prompts are no longer received." Id. at 7.
Finally, the Agency argues that to the extent the Union claims that employees who are on official time are exempt from the exercise of management rights because of § 7131(d), such argument is contrary to the principle expressed in United States Dep't of the Treasury, IRS, 59 FLRA 34 (2003). In this respect, it notes that it has already negotiated over official time and that this proposal does not concern the "amount, allocation or scheduling of official time[.]" SOP at 12.
V. Meaning of the Proposal
As written and interpreted by the Union, the proposal would exempt three Union officials who are on official time from having to participate in the AWS provided that they are on official time. The proposal would also require the Agency to delete any computer generated AWS prompts that occur during official time.
VI. Analysis and Conclusions
The Proposal Affects the Agency's Right to Assign Work
and Direct Employees under § 7106(a)(2)(A) and (B)
The Authority has found that "[p]roposals that preclude management from using a particular method of monitoring employees' work performance affect management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute." NAGE, Local R1-203, 55 FLRA 1081, 1085 (1999) (NAGE). In this respect, the Authority has noted that "proposals that prohibit management from using information derived from its computer system to monitor employee production have been held to directly interfere with these rights." Id. (citing NFFE, Local 1482, 44 FLRA 637, 665-70 (1992)).
Furthermore, the right to direct employees, within the meaning of § 7106(a)(2)(A) of the Statute, means to "supervise and guide [employees] in the performance of their duties on the job." Patent Office Prof'l Ass'n, 41 FLRA 795, 834 (1991) (quoting NTEU, 3 FLRA 769, 775 (1980), aff'd 691 F.2d 553 (D.C. Cir. 1982)). This right is exercised through supervising employees and determining the quantity, quality, and timeliness of work production and establishing priorities for its accomplishment. See NAGE, Local R1-109, 53 FLRA 526, 535 (1997) (Proposal 4) and cases cited therein. The Authority has determined that requiring "employees to be accountable for their use of duty time" by informing their supervisors prior to taking breaks is a management right. Dep't of Health and Human Serv., SSA, Balt., Md. and SSA Jamestown, N.Y. Dist. Office, Jamestown, N.Y., 34 FLRA 765, 770 (1990).
The Authority has not previously addressed whether an agency has a right to require an employee to account for his/her time while that employee is on official time through the use of an automated work sampling system. Doing so now, we conclude that agencies have a right to request accurate information about what employees in individual components are doing, at least in general terms, in order to establish priorities and meet goals. As applied here, we note that the Agency's AWS prompts do not require an employee who is on official time to disclose anything other than that fact. As relevant here, the Agency's AWS prompts do not require an employee to disclose what particular activities are being performed on official time or otherwise reveal sensitive information.
In these circumstances, we find that requiring an employee to account for duty time is encompassed within the rights to direct employees and assign work. See NAGE, 55 FLRA at 1085. In this respect, the Union does not argue that the Agency does not have the right to track time; the Union only contends that the method the Agency has chosen is inappropriate. The Union's contention goes to the merits of the Agency's chosen method, rather than the negotiability of the proposal. As explained above, we find that the Union's proposal affects the Agency's right to direct employees and assign work. As the Union expressly states that it does not raise either a § 7106(b)(2) or (3) claim, we find that the proposal is outside the duty to bargain. Union's Response, paragraphs 6, 7.
The petition for review is dismissed. [ v60 p280 ]
Concurring Opinion of Chairman Cabaniss:
I agree with the above opinion and write separately only to express concern regarding the Authority's "carve out" doctrine, which in looking at this matter came into focus after the Union noted the continued existence of this principle. See Union's Response, paragraph 3a. I take this opportunity to address this doctrine because I believe that the viability of the "carve out" doctrine, which creates exceptions to the right to assign work under § 7106(a)(2)(B), does not withstand scrutiny in the face of the Supreme Court's decision in IRS v. FLRA, 494 U.S. 922 (1990) (IRS). Therefore, I write separately to express my concern for the need to no longer follow this doctrine in the future.
In reliance on AFGE, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986), the Authority found §§ 7121 and 7131(d) "carve[d] out" or created new exceptions to the right to assign at § 7106(a)(2)(B). See, e.g., NFFE, Local 29, 29 FLRA 726, 728 (1987). In 1990, the Supreme Court, in IRS, reviewed the Authority's negotiability determination "that the management rights provisions of § 7106 do not trump § 7121[.]" IRS at 927. In overturning the Authority, the Court stated the following:
The FLRA's position is flatly contradicted by the language of § 7106(a)'s command that "nothing in this chapter" - i.e., nothing in the entire Act - shall affect the authority of agency officials to make contracting-out determinations in accordance with applicable laws. Section 7121 is among the provisions covered by that italicized language.
Id. at 928 (emphasis in original). I note the obvious, i.e., § 7131(d) also is "among the provisions covered by that italicized language" referenced by the Court in that quote. I also note that the proscription against anything in "this chapter" (5 U.S.C. 7101 et seq.) affecting § 7106(a) determinations (except of course, for § 7106(b)), would also apply to the right to assign work under § 7106(a)(2)(B).
The Authority addressed the impact of IRS on its carve out precedent in NTEU, 45 FLRA 339 (1992). In its concern for "eviscerating" § 7131(d) because of the Court's mandate (that nothing in the Statute outside of § 7106(b) could impose a limitation on a § 7106(a) right), the Authority concluded that to not maintain the carve out exception "would effectively void section 7131(d)." Id. at 348. That conclusion does not withstand scrutiny, per the discussion below.
As noted by the Supreme Court, Congress expressly restricted the limitations upon agency § 7106(a) rights to those set out in § 7106(b), most notably § 7106(b)(3), which grants unions the right to negotiate "appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials." Section 7131(d) of the Statute also grants unions the right to negotiate official time for representation purposes under the Statute so long as the amount involved is "reasonable, necessary, and in the public interest." Official time under § 7131(d) is clearly bargainable, but the Supreme Court makes clear that § 7131(d) is not an absolute right and must still be subject to limitation by § 7106(a); but that does not mean that § 7106(a) "would effectively void" § 7131(d), what it means is that official time proposals under § 7131(d) must be analyzed under the § 7106(b)(3) "appropriate arrangement" framework.
The right to official time under § 7131(d) must be subject to countervailing considerations. As the Authority and courts have recognized (in addressing union information requests under § 7114(b)(4)), "necessary" means an evaluation of both sides' interests. See, e.g., NLRB v. FLRA, 952 F.2d 523, 531 (1992) ("A statute that requires `necessity' implicitly recognizes countervailing interests, because a `need,' by definition, is an interest of particular strength and urgency."); and IRS, Wash., D.C., and IRS, Kan. City Serv. Ctr., Kan. City, Mo., 50 FLRA 661, 669 (1995) (in construing whether information is "necessary" for the purposes of § 7114(b)(4), Authority "will consider both parties' interests" in making that determination). I also note that, in considering whether an arrangement is "appropriate" for purposes of § 7106(b)(3), the Authority assesses the countervailing interests of "the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights." AFGE, Local 3694, 58 FLRA 148, 150 (2002) (citing NAGE, Local R14-87 (also known as Kansas Army Nat'l Guard (KANG)), 21 FLRA 24 (1986)).
It is not a great leap of faith to conclude that the negotiability of § 7131(d) proposals should be resolved pursuant to § 7106(b)(3). Doing so eviscerates neither § 7131(d) nor § 7106(a) - and pays deference to the Supreme Court's IRS ruling, something not accomplished by the Authority in its NTEU decision. Thus, while this particular case does not rest upon the "carve out" doctrine, parties in future cases need to be prepared to address the above arguments.
Footnote # 1 for 60 FLRA No. 61 - Authority's Decision