14:0408(64)NG - AFGE Local 1395 and SSA, Great Lakes Program Center, Chicago, IL -- 1984 FLRAdec NG
[ v14 p408 ]
14:0408(64)NG
The decision of the Authority follows:
14 FLRA No. 64 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1395 Union and SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM CENTER, CHICAGO, ILLINOIS Agency Case No. O-NG-394 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises issues concerning the negotiability of five Union proposals. Union Proposals 1 and 5 are set forth in the Appendix, and Union Proposals 2, 3, and 4 are set forth in the text. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The Agency's initial claim that under Authority precedent, see Association of Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA 314 (1979), the matters proposed are not sufficiently specific and delimited to warrant review is not persuasive. The specific proposals in dispute were attached to the petition for review and, thus, are properly before the Authority. Therefore, the Agency's motion to dismiss the Union's appeal is denied. See American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA No. 113 (1983). Union Proposal 1 provides for a joint labor-management committee to develop performance expectations for benefit authorizer trainees and claims authorizer trainees, establishes interim quantitative and qualitative standards for those positions, and sets forth certain principles governing the implementation of the standards. The portion of Union Proposal 1 providing for a joint labor-management committee to "develop" performance expectations for the specified positions would require Union participation in determining the content of those standards. In this regard, it is well established that the determination of the content of performance standards is an exercise of management's rights to direct employees and assign work under Section 7106(a)(2)(A) and (B) of the Statute. /1/ See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982); National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983). It is equally well established that union participation in the exercise of management's rights through membership on joint labor-management committees established to take action pursuant to those rights directly interferes therewith, contrary to section 7106 of the Statute. See National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA No. 105 (1981), enforced sub nom. National Federation of Federal Employees v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982); National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA No. 139 (1982). /2/ Therefore, by providing for the Union jointly to determine with management the content of certain performance standards, Union Proposal 1 would directly interfere with management's rights to direct employees and assign work and is outside the duty to bargain. Additionally, by providing that disputes within the joint labor-management committee as to the content of performance standards shall be submitted to arbitration for resolution, this portion of Union Proposal 1 conflicts with the Authority's holding in American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA No. 14 (1981), affirmed sub nom. American Federation of Government Employees, AFL-CIO, Local 1968 v. Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir. 1982), cert. denied . . . U.S. . . ., 103 S.Ct. 2085 (1983), wherein it was determined that critical elements and performance standards could not be made subject to arbitral review. The portion of Union Proposal 1 which sets forth standards of productivity for claims authorizer and benefit authorizer trainees in terms of numbers of cases and accuracy of result likewise would establish the substance of performance standards for those positions. As indicated above, the Authority held in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 768 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), that a proposal establishing the content of performance standards for job retention was outside the duty to bargain in that it would directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Since the portion of Union Proposal 1 under consideration here similarly would establish the content of performance standards, it is, for the reasons more fully stated in Bureau of the Public Debt, outside the duty to bargain. The Union, however, seeks to distinguish the present proposal from the one at issue in Bureau of the Public Debt. In this connection, the Union argues that the proposal herein is not concerned with either job retention standards or any standards which are part of a performance appraisal system established pursuant to chapter 43 of title 5 of the United States Code. The Authority finds that the former distinction as to retention standards is not dispositive, see National Treasury Employees Union and U.S. Nuclear Regulatory Commission, 13 FLRA No. 49 (1983), and the second, as to chapter 43 of title 5, is inapposite as to a decision based solely on section 7106 of the Statute. Finally, the portion of Union Proposal 1 prescribing the levels of performance which are sufficient to qualify employees for promotion or to render their performance unacceptable has the same effect as the proposal at issue in American Federation of State, County and Municipal Employees, AFL-CIO, Local 26 and U.S. Department of Justice, 13 FLRA No. 96 (1984). In that case, the Authority determined that the portion of a proposal which would establish the levels of performance in individual job elements necessary to the achievement of a given overall rating in the evaluation of an employee's performance is an exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In the instant case, it appears that Union Proposal 1 would, among other things, similarly prescribe the levels of performance that management must accept, in evaluating an employee's performance, which would support an overall finding of unacceptable performance. Thus, Union Proposal 1, for the reasons more fully set forth in the Authority's Department of Justice decision, likewise would directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is outside the duty to bargain. /3/ Union Proposal 2 Claims instructors who are alleged to be unsuitable for the position of instructor shall have the right to contest the decision through the grievance procedure and be retained in the position until the grievance procedure is completed. They shall be if unsatisfactory returned to the claims authorizer position. Union Proposal 3 Benefit authorizer instructors who are performing unsatisfactorily will be given an opportunity to be reassigned to another GS-9 position. Union Proposal 2 would require management to reassign to the claims authorizer position an employee who is found to be performing unsatisfactorily as a claims instructor. In this regard, Union Proposal 2 has the same effect as a portion of Union Proposal 1 in American Federation of Government Employees, Local 1760 and Department of Health and Human Services, Social Security Administration Northeast Program Service Center, 9 FLRA No. 142 (1982). In that case the Authority held that, by requiring management to assign an employee who was performing unsatisfactorily to a like-graded position in order to afford that employee an opportunity to perform satisfactorily, the disputed proposal directly interfered with management's right to assign employees to positions under section 7106(a)(2)(A) of the Statute. /4/ Therefore, since Union Proposal 2 herein, like Union Proposal 1 in Northeast Program Service Center, would require the reassignment of an employee who is performing unsatisfactorily, it likewise directly interferes with the right to assign employees under section 7106(a)(2)(A) and, thus, is outside the duty to bargain. Union Proposal 3 similarly would require management to give a benefit authorizer instructor who is performing unsatisfactorily the option of being reassigned to another GS-9 position. That is, the proposal at issue would subject the Agency's reserved discretion concerning reassignment of an employee to the control of that employee's decision to seek reassignment. In this regard, Union Proposal 3 has the same effect as subsection (f) of Provision 5 in International Organization of Masters, Mates, and Pilots and Panama Canal Commission, 11 FLRA No. 29 (1983), which permitted employees themselves, under specified circumstances, to assign duties. The Authority held that by making the assignment of work a matter to be decided by employees instead of management the provision deprived management of its right to assign work under section 7106(a)(2)(B) of the Statute. Likewise, by giving an employee the right to determine that he or she will be reassigned, Union Proposal 3 would directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute and, thus, is outside the duty to bargain. Union Proposal 4 Prior to the evaluation of employees under this system each employee will receive satisfactory training as determined by mutual agreement between Local 1395 and the GLPSC as mandated by Article 15, section a of the Master Agreement. It is agreed that a committee for this purpose will be established under Article 15, section d. Union Proposal 4, by requiring the agency to provide mutually agreed-upon training to employees as a condition precedent to its evaluation of their performance, has the same effect as the proposal at issue in American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA No. 87 (1982). In that case, the proposal would have required management to provide employees who had duties added to their position description specific formal training in those duties before evaluating them thereon. The Authority held that the proposal directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute in that it required the agency to provide training to employees. Therefore, by requiring management to provide training to employees prior to evaluating them, the type and amount of which training would itself be subject to negotiation, Union Proposal 4, for the reasons set forth more fully in the Otis Air Force Base decision, would directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and, thus, is outside the duty to bargain. See also American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, 9 FLRA No. 122 (1982), in which the Authority held that proposals requiring the agency to provide specific types of training to unit employees, and prescribing the duration thereof, directly interfered with the agency's right to assign work under section 7106(a)(2)(B). By its terms, Union Proposal 5 would establish qualitative ("Extent to which work was free from clearly defined error") and quantitative ("Amount of work accomplished") performance standards for employees in instructor positions. In this regard, therefore, it has the same effect as the union proposal at issue in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), wherein the Authority held that the proposal, by establishing the content of a performance standard for job retention, directly interfered with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Since Union Proposal 6 herein would similarly establish the content of performance standards, for the reasons more fully stated in Bureau of the Public Debt it would likewise directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and, thus, is outside the duty to bargain. /5/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review with respect to Union Proposals 1-5 be, and it hereby is, dismissed. Issued, Washington, D.C., May 7, 1984 Barbara J. Mahone, Chairman Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY Member Haughton concurring: I concur with the majority decision on the proposals presented in this case. However, I would not like the discussion regarding Union Proposal 1 to be regarded as prohibiting or discouraging the establishment, by voluntary agreement, of programs providing for employee involvement in joint labor-management committees. These programs provide structures whereby employees at all levels are able to participate in discussions about their work and to use their knowledge, skills and abilities more effectively. I believe that they should be encouraged as being consistent with the promotion of an effective and efficient government. Joint labor-management committees already have been successful in many areas. Private sector firms in such basic industries as auto, steel, electrical and telephone have made major commitments to employee participation plans as a means of improving both productivity and the quality of work life. The experience in Japan is well known. In its "Resource Guide to Labor Management Corporation," the U.S. Department of Labor lists twelve ongoing programs in the Federal government. To this list must be added the recently negotiated "Quality Circles" in the Internal Revenue Service. One of the best known joint programs in the Federal sector was started at the Norfolk Naval Shipyard in 1979. This undertaking has been a substantial success. A publication of the shipyard notes that "Quality and productivity improvements are results of employees having more input into decisions which affect their day to day work." /6/ I agree that employee involvement type programs cannot be mandated under our Statute. Indeed, I believe that to be successful they can be established only by voluntary agreement. It is in this area of mutually agreed upon labor-management activity that I would like to see the Federal sector as a leader, not just a follower, of private sector developments. Issued, Washington, D.C., May 7, 1984 Ronald W. Haughton, Member APPENDIX Union Proposal 1 25. A joint Labor-Management Committee will be established to study the performance of BA and CA trainees. This committee will have access to all data necessary to establish reasonable standards for trainees. This committee will make quarterly reports to revise or retain the present set of performance expectations for BA and CA trainees. This committee will be composed of equal members of management and labor. Should there be a disagreement on this committee that cannot be resolved by the President of Local 1395 and the Director of Management then the dispute shall be resolved through arbitration. Until this committee developes these expectations the following interim standards shall be used. (Who will decide on the basis of whether these standards are equitable, fair, reasonable and non-discriminatory toward any class of individuals.) /7/ BENEFIT AUTHORIZER TRAINEE G.S.-5 Productivity 3 to 5 cases per day Payment Accuracy 90 to 98% Technical Accuracy 80 to 83% Notice Accuracy 90 to 93% These are the requirements to get off review and to be eligible for promotion to the G.S.-7 position. G.S.-7 (Requirements for Promotion to Journeyman) /8/ Productivity 7 to 9 cases per day Payment Accuracy 90 to 92% Technical Accuracy 89 to 92% Notice Accuracy 93 to 95% CLAIMS AUTHORIZER TRAINEE G.S.-7 (Requirements to get off review and to qualify for promotion to Journeyman) Productivity 7 to 9 cases per day Payment Accuracy 90 to 92% Documentation Accuracy 90 to 92% Notice Accuracy 93 to 95% Technical Accuracy 89 to 92% These requirements are based upon the following principles: 1. A trainee only need attain the required standard of performance for his current grade level to be eligible for promotion to his next career ladder level. 2. A trainee must be deficient in a majority of the areas measured in the review to be considered not performing acceptably. Union Proposal 5 /9/ The standard for this appraisal item represents the level of performance which is considered acceptable for a journeyman level employee. An employee who does not meet these requirements should receive an "A" for this item. An employee who usually meets, but rarely exceeds these requirements, should be given a "B". An employee who meets and sometimes exceeds these requirements should receive a "C". An employee who exceeds these requirements but not to an exceptional degree should receive a "D". An employee who exceeds these requirements to an exceptional degree should receive an "E" for the item. Description: Extent to which work was free from clearly defined error. Standard (Performance will be considered up to standard when the employee:) Secures and thoroughly examines all information pertinent to post-entitlement actions on individual cases, making sound decisions consistent with law and regulations and taking effective action to implement the decisions. Provides clear and understandable training to the trainee on the various functions of the benefit authorizer position as it is presented on the appropriate technical literature issued by the Social Security Administration. Provides the trainee with sound advice on how to perform the duties of the benefit authorizer. Correctly analyzes and presents new procedures to trainees or journeymen if required. May be called upon to develop new training packages. Indicators of Performance (This item can be displayed in various ways such as the manner in which the employee:) Makes decisions consistent with law and regulation. Applies established policy and procedure to post-entitlement cases. Prepares correspondence reports and records. Conducts effective training by presenting training material clearly and understandably. Performance Review Summary (Was performance level measured? To what degree? Reasons performance was above/below standard. Suggestions for improving level of performance.) . . . . The standard for this appraisal item represents the level of performance which is considered acceptable for a journeyman level employee. An employee who does not meet these requirements should receive an "A" for this item. An employee who usually meets, but rarely exceeds these requirements, should be given a "B". An employee who meets and sometimes exceeds these requirements should receive a "C". An employee who exceeds these requirements but not to an exceptional degree should receive a "D". An employee who exceeds these requirements to an exceptional degree should receive an "E" for the item. Description: Amount of Work accomplished. Standard (Performance will be considered up to standard when the employee:) Makes documents and sends notification of post-entitlement actions. Completes assignments timely. Presents training material within reasonable time frames. Will deviate from established time frames when reasonable to do so. Indicators of Performance (Does the employee?) Contribute to the module's productivity goals for post-entitlement work. Class instructions completed within reasonable time frames. Performance Review Summary (Was performance level measured? To what degree? Reasons performance was above/below standard. Suggestions for improving level of performance.) --------------- FOOTNOTES$ --------------- /1/ Section 7106(a)(2)(A) and (B) of the Statute provides, in relevant part, as follows: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- (A) to . . . direct . . . employees in the agency . . . ; (B) to assign work(.) /2/ Cf. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA No. 34 (1981) (Union Proposal 6) (joint labor-management committee with limited power to make recommendations for changes in performance appraisal system negotiable as a procedure under section 7106(b)(2) of the Statute). /3/ Cf. National Treasury Employees Union and NTEU Chapter 72 and Internal Revenue Service, Austin Service Center, 11 FLRA No. 58 (1983), (Union Proposal 2) (proposal established a criterion for evaluating an employee's ability to perform higher graded work for use in connection with decision to promote the employee to that higher grade.) Unlike Union Proposal 2 in Austin Service Center, which merely established guidelines for predicting an employee's ability to perform the work of a higher grade level, the proposal at issue herein clearly would limit the level of performance management could require of an employee in that employee's current position. /4/ Section 7106(a)(2)(A) provides, in relevant part, as follows: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- (A) to . . . assign . . . employees in the agency(.) /5/ With respect to the Union's contentions that Union Proposal 5 is within the duty to bargain because it does not establish a standard for job retention, because it does not concern standards established pursuant to chapter 43 of title 5 of the United States Code, or because it establishes a standard for eligibility for promotion, see, supra, pp. 3-4. /6/ "Report of Implementation and Progress of the Quality Circle Program at Norfolk Naval Shipyard," Productivity Programs Office, Norfolk Naval Shipyard, p. 13, June 1981. /7/ The bracketed material is a handwritten addition to the Union's proposal as found in the record herein. Its significance with respect to the remainder of the proposal is unclear but, in any case, would not be dispositive. /8/ The numerical figures in this portion of the proposal are amended in accordance with Union notice to the Agency as found in the record herein. /9/ While it is not entirely clear from the record, based primarily on the wording of the standards set forth herein, it appears that Union Proposal 5 sets forth the standards for instructors which, according to Union correspondence with the Agency dated May 20, 1980, were to be attached to the other proposals pertaining to instructors (Union Proposals 2-4) contained in that correspondence.