[ v18 p437 ]
18:0437(60)CA
The decision of the Authority follows:
18 FLRA No. 60
SOCIAL SECURITY ADMINISTRATION
NORTHEASTERN PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Charging Party
Case No. 2-CA-30144
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. The General Counsel and the Charging
Party filed exceptions to the Judge's Decision, and the Respondent filed
an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, as modified herein.
As found by the Judge, in January 1982 the Respondent notified the
Charging Party (the Union) of its plans to implement a new system for
auditing employee performance and provided the Union with a memorandum
which described the new system. The Union requested bargaining on the
matter and the parties met several times for negotiations, exchanged
proposals and counterproposals, and exchanged other written
communications on the matter from January through May 1982. These
negotiations and communications gave rise to a set of proposals from the
Union (numbered 1-11 by the Judge), a request by the Union for a written
response, and a written response from the Respondent on or about May 5.
In its response, the Respondent advised the Union that two of the
proposals (3 and 6) were negotiable, that it needed an explanation of
the Union's intent as to three others (4, 10 and 11) to determine
whether they were within the duty to bargain, and that the remaining six
proposals (1, 2, 5, 7, 8 and 9) were outside the duty to bargain.
There were further communications on the matter, but there was no
further bargaining. In July 1982, the Union filed a petition for review
with the Authority regarding the Respondent's determination that certain
of its proposals on the new system were outside the duty to bargain,
including the aforementioned six proposals and others. In September
1982, knowing of the Respondent's intent to implement the new system in
October, the Union requested a delay pending the outcome of the
negotiability appeal. The Respondent declined to delay and implemented
in October 1982, as planned. In December, the Union filed the unfair
labor practice charge against the Respondent that gave rise to the
instant complaint. It alleges that the Respondent violated section
7116(a)(1) and (5) of the Statute by implementing its changes and
refusing to bargain over the proposals at issue herein.
The Authority agrees with the Judge that the resolution of this case
depends upon an analysis of the Respondent's conduct regarding the
proposals at issue, and not merely on whether the Respondent implemented
in the face of a bargaining request. The Authority concurs with the
Judge's reasoning and her conclusion that the Respondent cannot be held
to have violated section 7116(a)(1) and (5) of the Statute regarding
proposals 3 and 6. Thus, the Respondent advised the Union in May that
these proposals were negotiable. Notwithstanding the fact that the
Union knew by May that the Respondent intended to implement its new
system in October, it did not request bargaining on these proposals. In
these circumstances, it cannot be concluded that the Respondent refused
to bargain regarding these proposals. See, e.g., General Services
Administration, 15 FLRA No. 6 (1984); Department of Defense, Department
of the Air Force, Armament Division, AFSC, Eglin Air Force Base, 13 FLRA
612 (1984).
In the Authority's view, an analogous conclusion, suggested by the
reasoning in the latter part of the Judge's Decision, applies to
proposals 4, 10 and 11. The Respondent did not claim that these
proposals were outside the duty to bargain. Instead, it asked for an
explanation of the Union's intent as to these proposals in order to make
such a determination. The Union did not respond. Based on the Judge's
conclusion that the Respondent's request was reasonable and that it
acted responsibly under the circumstances, as well as our review of the
record as a whole, we are unable to conclude that the General Counsel
has shown that the Respondent refused to bargain with regard to
proposals 4, 10 and 11. Cf. Division of Military and Naval Affairs,
State of New York, Albany, New York, 8 FLRA 307, 320 (1982) (a union may
not ignore a management request for specific proposals, await
implementation, and then endeavor to perfect its request for
negotiations).
We next turn to the Respondent's refusal to bargain concerning the
remaining proposals at issue. Union proposals 1, 2, 5 and 7 would
require the Respondent to sample employees' work in a particular way in
order to audit the employees' ongoing work performance. The record
before the Judge provided varying explanations of the Union's intent
behind these proposals, including an explanation provided to the
Respondent during the parties' negotiations prior to the Respondent's
refusal to bargain, and a different explanation, provided by the Union
in the context of the aforementioned negotiability appeal, after the
negotiations had ceased. In the context of the parties' negotiations,
the Union's explanation indicated that it intended to require the
Respondent to use the Union's proposed methods to the exclusion of
others, based on its view that the Respondent's methods would be too
onerous and burdensome for the employees. In the context of the later
negotiability appeal, the Union indicated that these proposals were not
intended to preclude the Respondent from using any other method. /1/
The Judge concluded that the proposals made during negotiations were
intended to preclude the Respondent from using other methods. /2/ We
agree, having concluded that this is the interpretation of the Union's
intent for these proposals which is supported by the record as a whole.
/3/
In this regard, the Authority has previously determined that an
agency's rights to "direct" and "assign work" to employees under section
7106(a)(2)(A) and (B) of the Statute /4/ encompass the right to
determine the quantity, quality and timeliness of employees' work /5/
and the right to determine the aspects of employees' work which will be
evaluated in connection with the preparation of employee performance
appraisals. /6/ To determine the quantity, quality, and timeliness of
employees' work and to be able to evaluate employees' work in these
respects, management must also be free to audit employees' work by the
methods it deems most appropriate for such purposes. As the Union's
proposals were intended to proscribe the Respondent's use of other
auditing methods, in favor of a particular sampling technique, we
conclude that these proposals conflict with section 7106(a)(2)(A) and
(B) of the Statute and are outside the duty to bargain.
Proposal 8 is outside the duty to bargain for analogous reasons. It
would limit the Respondent's authority to determine errors in employees'
work and thereby limit the Respondent's authority to determine the
quality of work to be expected from employees. /7/ As explained by the
Judge, proposal 9 is outside the duty to bargain because it would
require the Respondent to assign particular work to particular employees
and, on this basis, it conflicts with the Respondent's right to "assign
work" under section 7106(a)(2)(B). /8/
Accordingly, although the Respondent did refuse to bargain concerning
proposals 1, 2, 5, 7, 8 and 9, we conclude, in agreement with the Judge,
that these proposals are outside the duty to bargain. Therefore, we
adopt the Judge's conclusion that the Respondent did not violate section
7116(a)(1) and (5) of the Statute by refusing to bargain concerning
these proposals /9/ and her recommendation that the complaint be
dismissed in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-30144 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Julian Bergman and
Daniel H. Green,
Representatives for Respondent
Herbert Collender,
Representative for Charging Party
Alfred R. Johnson, Jr., Esq.,
Counsel for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 (1982),
commonly known as the Federal Service Labor-Management Relations Statute
(hereinafter referred to as the "Statute") and the rules and regulations
issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge filed by the Union on December 14, 1982, the
General Counsel of the Federal Labor Relations Authority ("Authority")
investigated and, on June 30, 1983, served the complaint initiating this
proceeding. It alleges that, on or about October 1, 1982, Respondent
unilaterally implemented a new system of auditing the work of claims and
benefits authorizers and, since that time, has refused and continues to
refuse to negotiate, "concerning certain of the Charging Party's
proposals on the subject of 'random sample' of cases in Respondent's new
audit system." See paragraph 7 of the Complaint and Notice of Hearing,
which is Exhibit 2 to the Stipulation of Facts filed in this proceeding.
It alleges that, by such acts, Respondent has engaged in and is
engaging in unfair labor practices, in violation of Sections 7116(a)(1)
and (5) of the Statute. /10/
Respondent denies that it has violated the Statute.
A hearing was held in New York City on August 18, 1983. The parties
appeared and submitted a Stipulation of Facts, which was received into
evidence as Joint Exhibit A. Attached to the Stipulation are 25
exhibits. /11/ In addition, evidence was received from Respondent's
labor relations specialist, Julian Bergman, on the issue of the status
quo ante remedy being requested by the General Counsel.
On October 28, 1983, briefs were received from the General Counsel
and Respondent, pursuant to a September 8 order extending the briefing
time, after a showing of good cause by Respondent.
Based upon my consideration of the record in this case and the
briefs, I make the following findings and conclusions of law, and
recommend the entry of the following order.
Findings of Fact /12/
1. At all times material herein, the Charging Party is and has been
a labor organization within the meaning of Section 7103(a)(4) of the
Statute.
2. At all times material herein, the Social Security Administration
("SSA") is and has been an agency, within the meaning of Section
7103(a)(3) of the Statute, and the Northeastern Program Service Center
("NEPSC") is and has been a constituent entity within SSA, and an agent
acting on its behalf.
3. At all times material herein, the following named persons
occupied the positions set forth below, opposite their names:
Robert Marinaro-- Director of Management
Julian Bergman-- Labor Relations Specialist
4. At all times material herein, the individuals named above in
finding 3, have been and are now supervisors or management officials, as
defined in Section 7103(a)(11) of the Statute, and have been, and are
now, agents of Respondent acting on its behalf.
5a. At all times material herein, the American Federation of
Government Employees ("AFGE"), AFL-CIO, has been the exclusive
representative of employees in the unit consisting of all nonsupervisory
employees (including professionals) in the SSA Program Service Centers,
excluding all management officials and employees engaged in federal
personnel work in other than a purely clerical capacity.
b. At all times material herein, AFGE has delegated to AFGE National
Council of SSA Payment Centers ("Council") authority to act as its
representative for the purpose of collective bargaining for certain of
NEPSC's employees, and has been recognized by Respondent as such.
c. At all times material herein, AFGE's Local 1760, AFL-CIO
("Charging Party" or "Union") has acted as agent for the Council for the
purpose of collective bargaining for certain of Respondent's employees,
including employees at NEPSC, and has been recognized by Respondent as
such.
d. From December 8, 1978 to June 11, 1982 the parties operated under
a Master Agreement between the Office of Program Service Centers of the
SSA and the National Office of AFGE. See Exh. 24.
e. Since June 11, 1982 to present, the parties have been operating
under a nationwide collective bargaining agreement between SSA and AFGE.
See Exh. 25.
6a. There are 42 work units at NEPSC known as modules. Six modules
comprise one process section. Each module is comprised of approximately
45 to 50 employees consisting of a manager, 2 assistant managers, 10 to
12 benefit authorizers, 5 to 7 claims authorizers, 1 benefit-authorizer
technical assistant, 3 typists, and 10 to 12 record analysis clerks.
Each section has three claims-authorizer-and-recovery-technical
assistants.
b. For the period of October 1976 to October 1982, the method of
auditing the work at NEPSC for the evaluation of the work of claims
authorizers and benefit authorizers was a three day audit of all work
performed by these employees. Such audits were administered by the
technical assistants, twice every appraisal period (October 1 to
September 30). Under this audit system, the employee would receive
advance notice of the audit from the module manager or his designee,
unless waived by the employee. There was no set procedure as to how
many days' notice would be given to the audited employee. There was no
formal or standardized definition of an error, concerning the employee's
work, for the technical assistant to follow. In various modules, the
second audit could be waived by the module manager at his or her
discretion.
7. On October 1, 1982, NEPSC implemented a new audit system for the
evaluation of claims and benefits authorizers. This system was composed
of 3 parts: 1) Definition of Error; 2) Random Sample of Cases for
Quality; and 3) Numeric Case Counts. In the Random Sample for Quality,
the technical assistant ("TA") must examine and audit at least 30 cases
of each authorizer for each 6 month period in the 12 month appraisal
period (October 1-September 30). These cases are selected at any time
and are audited for qualitative standards, without notice to the audited
employees. During each of these two periods the TA must examine various
types of cases. The TA can examine these cases at once, or space them
out over each of the two periods. There is a standard and formalized
definition of error for the evaluation of cases. Regarding the case
count, there is a numerical count of the number of cases that an
authorizer works on a given day. This count of cases is conducted once
per month. The employee is given notice of this quantitative
examination of his or her work on the morning of the case count. Cases
examined for this case count can be used as part of the random sample
evaluation of the quality of the authorizer's work.
8. The audit system described in finding 7, above, is used in the
performance evaluation of authorizers in their yearly appraisals. These
appraisals are used to determine whether these unit employees receive
within-grade increases, promotions, demotions, and performance
counseling. Respondent does not deny that the change in audit procedure
implemented on October 1, 1982 would have an adverse impact on unit
employees.
9. On or about January 20, 1982, NEPSC provided the Union with its
proposed changes from the three-day audit system to the random-sample
audit system. This was done by giving the Union a December 10, 1981
Memorandum entitled Random Sampling-- Case Counts Recommendation. See
Exh. 6. On January 20, 1982 the Union requested negotiations on the
adverse impact on this proposed change in conditions of employment.
10. During the period of January to April, the parties met several
times for negotiations. These meetings occurred on January 20 and 26,
February 4 and 18, and April 12 and 14.
11. On February 4, the Union submitted its proposals to management
of NEPSC. These proposals are contained in the Union's February 4 Union
Proposals for Random Review and a memorandum dated September 22, 1981
entitled Audit Recommendations. See Exhs. 7 and 8 to the Stipulation.
The September 1981 memorandum was a memorandum from the Union to
management in which the Union recommended the abolishment of three-day
audit and substitution of a random audit.
12. The Respondent responded to the Union's proposals by a
memorandum dated February 10. See Exh. 9.
13. By memorandum dated February 18 and February 19, the Union's
responded to the Respondent's counter proposals of February 10. See
Exh. 10 and 11.
14. By memorandum dated March 9, the Respondent submitted a new set
of proposals for the new audit system. See Exh. 12.
15. By memorandum dated March 16, the Union responded to the
Respondent's March 9 proposals with its counter proposals. See Exh. 13.
The proposals were broken down into four areas: (1) Definition of
Errors; (2) Random Sample of Cases; (3) Measuring Productivity; and
(4) Miscellaneous Procedures. Under area (2), the following proposals
were made by the Union:
1. A random sample of an employee's work will be conducted
during a continuous six-month period during each appraisal period.
2. No cases performed on overtime (including religious
compensatory time) will be subject to the random sample.
3. Prior to the sampling period, the employee will be told
what is acceptable. He/she will be told when the sampling period
beings and when it ends. When the sample for an employee has been
concluded, he/she will be advised.
4. The work of all employees in the same job will be reviewed
concurrently and at an even pace.
5. The random sample will consist of 20 cases to be selected
by the technical assistant from the employee's "out" tray.
6. A method of ensuring that the random sample is randomly
performed will be negotiated.
7. The following categories of work (and the number for each)
will be sampled: BENEFIT AUTHORIZERS: Awards (5); AJS-3 (2);
Students (2); District Office Inquiries (4); Exceptions (2);
AERO (2); Cyclical (3). CLAIMS AUTHORIZERS: Awards (10);
Earnings Discrepancy (5); Cyclical (5).
8. Errors will be weighed for their impact on the action taken
(see "Definition of Errors"). (In its proposals on Definition of
Errors, the Union excluded "technical inefficiencies," which the
proposals defined, and set the following standards: (a) a payment
error would render a case 80 percent incorrect; (b) a
documentation error would render a case 20 percent incorrect; and
an exception error would render a case 10 percent incorrect. See
Exh. 13, page 4.)
9. For all cases that are defective, the technical assistant
will note whether the defect is the result of an "oversight" or a
genuine lack of understanding.
10. If deficiency trends are indicated, the employee will be
given a reasonable period of time to improve in the deficient
area(s). After that time, the employee will be reviewed for
improvement only in the deficient area(s). If no improvement is
noted, the employee will be offered refresher training in the
deficient area(s) by EDTS. (EDTS is responsible for coordinating
and conducting training for new and recently promoted employees.)
11. Should an employee conclude that he/she has a basic
misunderstanding of the work in several areas that would preclude
either self-improvement and/or improvement with the assistance of
the technical assistant, the employee, upon request, will be
offered formal re-training by EDTS.
16. On or about April 14, the Union orally requested that the
Respondent provide a written response to its proposals.
17. On or about May 5, the Respondent, by Mr. Marinaro, sent to the
Union a memorandum dated May 5, which set forth Respondent's position on
the negotiability of the Union's March 16 proposals. See Exh. 14. On
the subject of the Random Sample of Cases, Respondent declared that
proposals 1, 2, 5, 7, 8, and 9 were not negotiable as they concerned the
means of performing work and were inconsistent with its authority to
determine the methods of performing work and, as such, were negotiable
only at its election, under 5 U.S.C. 7106(b)(1). Respondent declared
proposals 3 and 6 to be negotiable. As to the rest, Respondent replied:
Proposals 4, 10, 11-- Local 1760 is asked to provide us with
the intent of these proposals so that we can determine whether or
not they are negotiable.
Respondent further advised the Union that:
We are ready to meet with you to continue negotiating on those
proposals we find negotiable.
At the present time we plan on implementing the audit system as
previously outlined on October 1, 1982, the beginning of the new
appraisal period.
If you are aware of any FLRA negotiability decision which are
directly on point with your proposals and have been found by the
FLRA to be negotiable, please provide me with the citation so that
I may have them reviewed.
Thereafter, the parties did not conduct any further negotiations.
18. By memorandum dated June 25, the Union responded to the
Respondent's May 5 memorandum. See Exh. 15, which makes some general
statements, and then focuses on the Union's proposals as to defining
errors and counting work, under areas (1) and (3) of its proposals. See
finding 15, above. It cites cases dealing with the negotiability of
proposals pertaining to performance standards for quantity of work to be
performed (3 FLRA No. 119, 3 FLRA 769) and proposals concerning what
aspects of an employee's job would constitute discrete units for
counting purposes in determining quantity of work performed and who
should perform certain work (7 FLRA No. 35, 7 FLRA 235). The June 25
memorandum makes no specific reference to proposals 4, 10, or 11, or to
their intent. In the final paragraph of this memorandum, the Union
states:
In conclusion, the union urges that you review your assertions
within the context described above. Should our proposals be
clearly and indisputably prohibited subjects, we ought to mutually
submit language to overcome these impediments to the collective
bargaining process, rather than abort the process.
Please do not hesitate to contact me as soon as possible so
that we may engage in fruitful negotiations on these matters.
See page 2 of Exhibit 15.
19. By memorandum dated July 15, Respondent responded to the Union's
memorandum of June 25. See Exh. 16. It referred to the Union's
positions on the negotiability of the proposals which Respondent had
declared non-negotiable, and to the cases cited by the Union. The
memorandum concludes with the statement:
Having reviewed your response and the cases cited by you, our
memorandum of May 5, 1982 and the position set forth therein
remains unchanged.
20. By a memorandum dated July 19, the President of the Union
requested from Robert Marinaro, Respondent's Director of Management at
NEPSC, written and specific allegations of non-negotiability. See
Exhibit 17 to the Stipulation which reads:
I have reviewed the memorandum of July 15, 1982, authored by
Mr. Julian Bergman, on the subject of employee audit procedures,
asserting that the position set forth in your memorandum of May 5,
1982 "remains unchanged."
In light of that conclusion, I formally, and in writing,
request written and specific allegations that the duty to bargain
in good faith does not extend to the several particular matters
proposed by the union on the subject of employees audit
procedures.
21. By a memorandum also dated July 19, Mr. Marinaro replied to the
Union's request, in the following language:
By memorandum dated May 5, 1982, addressed to you, from me, you
were advised specifically of our allegation that the duty to
bargain did not extend to certain proposals. You were advised
specifically as to which of your proposals were not negotiable.
You were served with the declaration of nonnegotiability on or
about May 5, 1982. Further, at that time you were also advised as
to the basis of the declaration of nonnegotiability.
See Exhibit 18 to the Stipulation. /13/
22. By a letter dated July 30, the Union filed with the Authority a
negotiability position to review its March 16 proposals held to be
non-negotiable by Respondent. See Exh. 19. This petition is numbered
0-NG-720. See Exh. 23.
23. By a letter to the Chairman of the Authority, dated August 30,
the Respondent replied to the Union's July 30, 1982 negotiability
petition. See Exh. 20. Respondent addressed only the proposals it had
declared to be non-negotiable.
24. By memorandum dated September 13, 1982 the Union suggested that
Respondent defer the October 1 implementation of its new audit system
until the Authority had rendered a decision on its negotiability
petition. See Exh. 21. The concluding paragraph was:
Should you elect to ignore our reasonable requests, we will be
compelled to seek relief under the law and any other legally
acceptable modes of action to protect the jobs of bargaining unit
members. Of course, we welcome any ideas or options that you may
have. Please feel free to contact me in this regard.
This is the last communication of record between the parties. The
Union never indicated to Respondent that it wanted to negotiate
proposals 3 and 6, under its Random Sample of Cases proposals, apart
from the other proposals.
25. By memorandum dated September 13, the Union submitted to the
Authority a reply to the statement of Respondent's position that was
submitted on August 30, 1982 in this case. See Exh. 22.
26. On October 1, Respondent implemented its new audit system, as
set forth in finding 7, supra.
27. On December 14, the Union filed the charge initiating this
proceeding. See Exh. 1. It alleges violations of 5 U.S.C. 7116(a)(1)
and (5), in that Respondent conducted orientation on the new audit
system, in September 1982, with TA's; held meetings with bargaining
unit employees, on October 1, to explain the new system; and, on
October 1, implemented the new system-- all during the pendency of the
Union's petition to the Authority to review Respondent's allegations of
non-negotiability. It is stipulated that, by the filing of this charge,
the Union "elected the unfair labor practice procedure as opposed to the
negotiability procedure in pursuing this matter." See Stip. 30.
28. On or about July 5, 1983, the Union notified the Authority that
it had elected to pursue Case No. 0-NG-720 in accordance with the
procedures contained in 5 CFR 2423, which sets forth the procedures for
unfair labor practice proceedings. /14/
29. At the hearing, Counsel for the General Counsel indicated that
"at minimum" two proposals were at issue in this case, namely those
numbered 10 and 11 and set forth in finding 11, above. See TR 5 and see
also 6, 7, 8, 19. Mr. Collender, representing the Charging Party, and
Mr. Green, representing the Respondent, gave no indication of
disagreement.
30. The brief filed on behalf of the General Counsel frames the
alleged violations only in terms of Respondent's actions concerning the
Charging Party's proposals 10 and 11, and repeatedly refers to them as
"the 2 proposals at issue" (GCBr 10 and 11 and see also pages 9, 12,
13).
31. The Charging Party indicated that it would file a brief in this
matter, but did not. See TR 32.
32. The brief filed on behalf of Respondent indicates Respondent's
understanding that the proposals which form the basis of the petition
filed with the Authority, in Case No. 0-NG-720 (see finding 22, above)
are not made a part of this complaint. See RBr 9.
Stipulated Issues
I. Whether the Respondent violated Section 7116(a)(1) and (5) of the
Statute by unilaterally implementing a new system for auditing the work
of Claims Authorizers and Benefit Authorizers, NEPSC.
II. Whether the Respondent, since May 5, 1982, has refused and
continues to refuse to negotiate with the Charging Party concerning
certain of the Union's proposals on the subject of the "random sample"
of cases in Respondent's new audit system. See Stips. 37 and 38.
Discussion and Conclusions
Although the complaint and the stipulated issues are broad enough to
put in issue the negotiability of all the Union's proposals falling
under the rubric of "random sample of cases," the record is unclear as
to whether all, or only proposals 10 and 11, are at issue. See findings
27-32, above. Since Respondent took care, in its brief, to argue the
negotiability of all, it will suffer no harm if all are dealt with,
herein. Accordingly, this decision will treat all the "random sample of
cases" proposals as at issue.
I. The preponderance of the evidence /15/ does not demonstrate that
Respondent violated Section 7116(a)(1) and (5) of the Statute by
unilaterally implementing a new system for auditing the work of
bargaining unit employees, as alleged.
At the outset, it is noted that the General Counsel does not take the
position that it is "a per se violation of the Statute to implement a
change in an existing condition of employment or to establish a new
condition of employment while bargaining proposals pertaining to such
change are pending at the bargaining table, either prior to the
expiration of the time for filing a negotiability appeal under section
2424.3 of the Regulations or during the pendency of a negotiability
appeal before the Authority, regardless of whether the proposals are, in
fact, within the scope of the statutory duty to bargain." See page 37 of
the General Counsel's Report on Case Handling Developments of the Office
of the General Counsel, July 1, 1981 through September 30, 1981
(hereinafter, "the July 1981 Report"). The General Counsel concludes,
rather, that "in order to establish a violation of the Statute in such
cases a determination must be made as to whether any of the Union's
bargaining proposals pending on the bargaining table when the proposed
changes were implemented are, in fact, negotiable." See page 37 of the
July 1981 Report.
This is a sound position, and one which is consonant with the
statutory mandate that all its provisions "should be interpreted in a
manner consistent with the requirement of an effective and efficient
Government." See 5 U.S.C. 7101(b). It allows agencies to proceed with
needed changes, without delay. Then, in the event of a later finding by
the Authority that the agency should have bargained with the union over
the change on new working condition, the bargaining-unit employees are
protected by the broad remedial powers granted to the Authority in
Section 7118(a)(7) of the Statute. /16/ And, see, e.g., Internal
Revenue Service (District, Region and National Office Unit and Service
Center Unit ("IRS"), 10 FLRA No. 61, 10 FLRA 326 at 328-330 (1982),
invoking these broad remedies, including a return to the status quo
ante.
Proposals 3 and 6
Respondent concedes that it unilaterally implemented the new audit
system while proposals 3 and 6 were on the bargaining table, and
considered even by it to be bargainable, as they clearly are. See
findings 15, 17 and 26, above. However, Respondent advised the Union,
on May 2, 1982, that it was "ready to meet with (it) to continue
negotiating on those proposals (it) found to be negotiable" (finding 17,
above). Thereafter, the Union focused only on the proposals held to be
non-negotiable by Respondent (see findings 18, 20, 22 and 24). Finally,
on September 13, the Union simply suggested that Respondent defer its
October 1 implementation date until the Authority ruled on its
negotiability petition. See finding 27, above. No mention was made of
taking Respondent up on its May offer to continue negotiations on
proposals which are admittedly negotiable. Respondent never withdrew
its offer to negotiate as to proposals 3 and 6; and the Union never
accepted the offer to negotiate only as to these proposals.
Respondent's implementation (five months later) cannot be characterized
as an unfair labor practice, as to proposals 3 and 6.
Proposals 10 and 11
As to the "certain" proposals named in the complaint, "on the subject
of the 'random sample' of cases" (par. 7(b)) of Exh. 2), proposals 10
and 11, on training, will be discussed first. /17/ The General Counsel
argues that these proposals were bargaining as "appropriate
arrangements," under 5 U.S.C. 7106(b)(3), /18/ for "employees adversely
affected by management's exercise of its statutory right to assign
employees and/or work," and that they "seek only to ameloriate any
adverse impact on unit employees caused by the change in audit systems."
(GCBr 10 and 11).
Respondent argues that proposals 10 and 11 are not negotiable. As to
these proposals, Respondent argues that both interfere with management's
right to direct its work force and the right to assign work to it.
Specifically, as to proposal 10, Respondent argues that it:
1. Prohibits management from reviewing the quality and
quantity of work performance by an employee in areas other than
those which are deficient and interferes with right to assign
duties to specific employees who are responsible for reviewing the
work of claims and benefits authorizers in the area of quantity
and quality of work performed.
2. It requires Respondent to offer training in deficient
areas.
See RBr 7. As to proposal 11, Respondent argues, specifically, that it:
1. Requires the Respondent to offer a deficient employee
formal retraining at the request of the employee thereby
interfering with Respondent's right to assign work and direct the
work force.
See RBr 7.
The Authority has reviewed a number of proposals relating to training
programs. Recently, in IRS, 10 FLRA No. 61, 10 FLRA 326 (1982), where
the agency discontinued a training program, the Authority relied upon an
earlier decision, in National Association of Air Traffic Specialists,
and Federal Aviation Administration ("FAA"), 6 FLRA No. 106, 6 FLRA 588
(1981), in reiterating its position that "management's right to decide
to provide or discontinue training for bargaining unit employees during
duty hours is protected by section 7106(a)(2)(B)" (10 FLRA at 327, fn.
4), that is, the right "to assign work." See footnote 9, above. In IRS,
the Authority held, that "IRS nevertheless had an obligation pursuant to
section 7106(b)(2) and (3) of the Statute /5/ (footnote citation to this
section, quoted herein in footnote 18) to afford (the Union) the
opportunity to request negotiations over the procedures to be observed
in implementing the decision and appropriate arrangements for adversely
affected employees."
In another case, which involves the same parties as here (DHHS, SSA,
NEPSC and Local 1760), reported at 9 FLRA No. 103, 9 FLRA 813 (1982) and
hereinafter referred to as the "NEPSC" case, the Authority ruled on the
following union proposal:
Management will afford the employees in Clause 5 (referring to
employees who could not perform duties with greater physical
effort), who do not qualify for other positions, the training
necessary to do so.
See 9 FLRA at 814. In NEPSC, the Authority found no interference with
rights reserved to management, but merely an "appropriate management,
under Section 7106(b)(3), for employees adversely affected by
management's exercise of its statutory authority to assign employees
and/or work." (9 FLRA at 814). The Authority went on to say:
In this regard, the proposal in no way affects the Agency's
authority to reassign or to take any other action with respect to
its employees or positions. /2/ (fn. cites 8 FLRA No. 35) Rather,
it merely would obligate the Agency to afford employees the
opportunity for training which would enable them to qualify for
jobs more compatible with their physical capabilities. There is
nothing in the express language of the proposal which would
mandate training during duty hours, or otherwise deprive the
Agency of discretion concerning the methodology, scheduling,
duration, type, content, and other characteristics of the training
itself.
See 9 FLRA at 814. Thus, the Authority ordered the agency to bargain
over the proposal, upon request. See 9 FLRA at 815.
The proposal found bargainable, in NEPSC, is distinguishable from
those proposed here by Local 1760, in several respects. Proposal 10
does restrict management in choosing the "content" of training, by
limiting it to areas in which the employee has been found deficient, and
requiring it to offer training with that specific "content"; it
restricts management to a particular "type" of training, by its EDTS
activity rather than allowing Respondent the flexibility of assigning
such training duties to, for example, the assistant manager; and it
restricts management's right to assign review work to employees,
limiting their review work to areas in which employee performance has
been deficient.
Proposal 11 is also distinguishable from that found to be negotiable,
in NEPSC, in that it mandates the "type" of training to be provided to
authorizers, that it be "formal," and by EDTS, thus eliminating a choice
by management to offer, for example, informal training by assistant
managers. Both proposals 10 and 11 would also require Respondent to
assign employees to EDTS, during the lief of the agreement, even though
it might decide that a reorganization and elimination of EDTS would be
more efficient.
Another case cited, by both parties (GCBr 10 and RBr 8), is
International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and
U.S. Government Printing Office, Washington, D.C. ("GPO") 8 FLRA No. 35,
8 FLRA 188 (1982), wherein proposals for training were found to infringe
upon management's right "to assign work," in that they specified that
the training was to enable the employee to continue to perform their
traditional and historical work. Another training proposal at issue, in
GPO, was held to be negotiable. It provided that:
In the event of a reduction in force of bargaining unit
employees, the GPO upon written request, will meet with the union
to negotiate the establishment of retraining programs which would
allow employees to meet qualification standards for the
reassignment to other positions within the GPO.
See 8 FLRA at 189. Unlike proposals 10 and 11, here, the proposal held
to be negotiable, in GPO, did not mandate content, or type of training,
or otherwise infringe upon management's right to assign work to
employees.
The final case relied upon by the General Counsel, in addition to
those discussed above, and also cited by Respondent (GCBr 10 and 11 and
RBr 8) is the FAA case, 6 FLRA No. 106, 6 FLRA 588 (1981). In FAA, the
Authority found that several union proposals relating to training were
inconsistent with the agency's right to assign work. See 6 FLRA at
388-391. Like proposals 10 and 11 here, the union proposal in FAA
described "the specific type of training to be provided" (9 FLRA at 590)
and made "specific training assignments upon employee requests" (6 FLRA
at 591), among other things. The Authority found these proposals "not
merely procedural," but "a direct interference with the Agency's right
to assign work" (6 FLRA at 591). The fact that the proposals "might
concern training programs previously established by the Agency . . .
(was held to be) without controlling significance." (6 FLRA at 591).
Respondent relies upon some additional precedence on this subject.
In American Federation of Government Employees, AFL-CIO, Local 3004 and
Department of the Air Force, Otis Air Force Base, Massachusetts,
("Otis"), 9 FLRA No. 87, 9 FLRA 723 (1982), the Authority considered and
found nonnegotiable a union proposal requiring formal training on
newly-added duties before the agency could evaluate the performance of
employees to whom the newly-added duties had been assigned. Among other
objections to the proposal, the Authority found that:
Furthermore, proposals which would contractually obligate an
agency to provide formal training, to periodically assign
employees to specific types of training programs, and to make
specific training assignments upon employee requests are outside
the duty to bargain because the assignment of training under such
circumstances constitutes an assignment of work the negotiation of
which is inconsistent with management's right to assign work under
section 7106(a)(2)(B).
See 9 FLRA 724. Proposals 10 and 11, here, can be faulted on the same
grounds.
Another case relied upon by Respondent is American Federation of
Government Employees, AFL-CIO, Local 1923 and Department of Health and
Human Services, Social Security Administration, ("SSA"), 9 FLRA No. 122,
9 FLRA 899 (1982), in which the Authority held nonnegotiable a union
proposal that, among other things, required management "to provide"
'formalized training' to all full time permanent employees who occupy
replacement positions" (9 FLRA at 900). The Authority ruled, as to this
proposal, that "(s)ince the proposal would require the Agency to assign
specific work to bargaining unit employees (i.e., training) it is . . .
not within the duty to bargain" (9 FLRA at 900). Likewise, proposals 10
and 11 require "formal" training for certain employees.
Applying the rationale of the above to proposals 10 and 11, I
conclude that they do infringe upon management's right to assign
employees and work, as set forth in 5 U.S.C. 7106(a)(2)(A) and (B),
quoted in footnote 18, above.
Proposals 1, 2, 4, 5, 7, 8, and 9
The negotiability of these proposals, grouped under the union's
proposals in its area (2), "Random Sample of Cases" (see finding 15,
above) were not briefed by the General Counsel. Respondent makes a
short statement about them, as well as about proposals in the union's
areas (1) and (3), /19/ at pages 9 and 10 of its brief, and refers to
its reply to the petition for review filed by the Union with the
Authority. See Exh. 20, pages 3-6. The position of the Charging Party
is stated in its statement made to the Authority in support of its
petition for review. See Exh. 22, pages 5-6.
These proposals, as phrased, do infringe upon management's right to
assign employees, to assign work, and/or to control the methods and
means of performing work activities, as to which Respondent has not
elected to bargain, as discussed infra. See Section 7106(a)(2)(A) and
(B) and 7106(b)(1), quoted in footnote 18, above.
Proposal 1 is that: "A random sample of an employee's work will be
conducted during a continuous six-month period during each appraisal
period" (finding 15, above). This proposal not only mandates what type
of sample will be taken (a random one), but how long the sampling will
last. Both factors control the methods and means of controlling work.
Implicitly, it would prohibit management from instituting a 100 percent
review, despite its possible necessity to ensure acceptable quality of
work. The direct relationship of management's ability to audit an
employee's work performance and management's right to assign work has
been established by the Authority in National Treasury Employees Union
and Internal Revenue Service ("NTEU"), 6 FLRA No. 98, 6 FLRA 522 at
530-531, a negotiability case which involved the telephone monitoring of
conversations between employees and taxpayers.
Proposal 2 is that: "No case performed on overtime (including
religious compensatory time) will be subject to the random sample" (see
finding 15, above). The very nature and intent of sampling employee's
work is to properly direct completion of that work by establishing
accountability and providing feedback. To the extent that this proposal
eliminates sampling of employee's work on overtime, it usurps
management's Section 7106(a)(2) right to direct work performed on
overtime. By specifically eliminating random sampling on work performed
on overtime, it interferes with management's right to determine the
method and means of performing the work sampling activity, and hence is
negotiable only at the election of the Agency under Section 7106(b)(1)
of the Statute.
Proposal 4 is that: "The work of all employees in the same job will
be reviewed concurrently and at an even pace" (see finding 15, above).
This proposal would control the methods and means of performing the work
sampling activity. It could so overload the reviewers that Respondent
would be required to assign more employees to the work of review. Thus,
this proposal also infringes upon management's right to determine the
numbers of employees assigned to a work project. Respondent, under
Section 7116(b)(1), has not elected to negotiate these matters.
Proposal 5 is that: "The random sample will consist of 20 cases to
be selected by the technical assistant from the employee's 'out' tray"
(finding 15, above). As held in NTEU, 6 FLRA at 524-525, a union
proposal that requires management to assign duties to particular
employees infringes upon management's right to assign work, including
the discretion as to the particular employee to whom the work will be
assigned. The Union claims that the proposal merely "describes and
records the fact that technical assistants perform a duty set forth in
their position description" and, therefore "does not assign work, but
merely enumerates a function of the technical assistants position
description" (Exh. 22, page 5). Position descriptions are not made a
part of this record. And, in any event, the express language indicates
that Respondent could not later substitute another, such as the
assistant managers, to perform the selection. Also, by limiting the
audit process to 20 cases, the proposal infringes upon management's
right to audit adequately, the work of its employees, and thus its right
to assign work. See NTEU, 6 FLRA at 530-531. The Union's reply to the
20-case sample aspect of its proposal is that a 20-case sample is
"sufficiently large to ensure that quality is maintained" (Exh. 22, page
5). This, however, is a decision management must make, as it gains
experience with the new audit process. In addition, the proposal
dictates the method and means of obtaining the sample-- randomly and
from the employees "out" tray-- a subject matter negotiable only at the
election of the agency under Section 7106(b)(1).
Proposal 7 is that:
The following categories of work (and the number for each) will
be sampled:
BENEFIT AUTHORIZERS: Awards (5); AJS-3 (2); Students (2);
District Office Inquiries (4); Exceptions (2); AERO (2);
Cyclical (3).
CLAIMS AUTHORIZERS: Awards (10); Earnings Discrepancy (5);
Cyclical (5).
See finding 15, above. This proposal prevents management from sampling
more cases in a particular category than is specified in the proposal,
and from sampling work in categories other than those delineated in the
proposal. By preventing management from sampling, and hence auditing
cases in work categories not listed in the union proposal, and from
sampling a higher number of cases than specified in the listed
categories, management is unable to effectively audit, and hence direct
a large portion of the work assigned to its employees. See NTEU, 6 FLRA
at 530-531. Also, by specifying a minimum number of cases to be sampled
in certain work categories, the union proposal would require that
benefit and claims authorizers be assigned work in all of these
categories. The assignment of work is a non-permissive subject of
bargaining under Section 7106(a)(2). In addition, this proposal
dictates the method and means of work review and, for this reason alone,
only would be negotiable at the agency's election under Section
7106(b)(1).
Proposal 8 is that: "Errors will be weighted for their impact on the
action taken" (see Definition of Errors)" (finding 15, above). The
"Definition of Errors" subject of the Union's proposals requires
Respondent to exclude technical insufficiencies, and sets percentage
standards for how much an error renders a case incorrect. See finding
15, paragraph 8, above. This proposal infringes upon management's
Section 7106(a) right to assign work, in that it sets a definite limit
on Respondent's ability to audit employees. See NTEU, 6 FLRA at
530-531. Respondent may find that technical insufficiencies are an
important measure of an employee's worth, and that different percentages
are needed to gauge, properly, the work of the employees.
Proposal 9 is that: "For all cases that are defective, the technical
assistant will note whether the defect is the result of an "oversight"
or genuine lack of understanding" (finding 15, above). For the reasons
stated above, under proposal 5, this proposal violates management's
Section 7106(a)(2) right to assign work by specifying the particular
employee position (technical assistant) who will perform the stated
duties.
II. The preponderance of the evidence does not establish that, since
May 5, 1982, Respondent has refused, and continues to refuse, to
negotiate with the Union concerning certain the Union's proposals on the
subject of the "random of sample" of cases in its new audit system.
Of the 11 proposals under the subject "random of sample" of cases,
numbers 1, 2, 4, 5, 7, 8, 9, 10 and 11, are not negotiable, as the
Respondent claimed, and as already discussed. As to union proposals 3
and 6, Respondent advised the Union, as May 5, 1982, that it was "ready
to meet with you to continue negotiating on those proposals (it found)
to be negotiable" (finding 17, above), which included proposals 3 and 6.
At this point, Respondent had already engaged in six negotiating
sessions, from January through April 14. It never withdrew the May 5
offer to negotiate. It promptly replied to all proposals and
correspondence initiated by the Union and that required a response. See
findings 11-20.
The General Counsel attempts to make his case on the response of
Respondent to proposals 10 and 11. As to these proposals, as well as to
proposal 4, the Respondent, on May 2, 1982, asked the Union "to provide
(it) with the intent of these proposals so that (it) (c)ould determine
whether or not they are negotiable" (finding 17, above). The General
Counsel maintains that the Union did state its intent as to these
proposals on June 25, 1982, in a memorandum. See GCBr 12 and 14. As
found in finding 18, above, the June 25 memorandum deals in
generalities, and is specific only as to proposals which Respondent
claimed were non-negotiable. Clearly, it does not state the intent of
proposals 4, 10 and 11.
It is the General Counsel's position that, even assuming that
Respondent was "truly uncertain" as to the intent of union proposals,
"it should have then requested to meet and discuss these proposals at
the bargaining table, rather than requiring the Charging Party to state
the intent of its proposals as a condition precedent to its discussion
of these proposals at the bargaining table." (GCBr 11-12).
This position requires too much of an agency. After all, evidence of
the intent of a proposal is considered by the Authority in rendering its
decisions on negotiability issues. See, e.g., Otis, 9 FLRA at 723.
Certainly, then, the benefit of such knowledge should not be denied to
an agency attempting to make an intelligent and informed decision when a
proposal is put to it. Requesting the intent of a proposal should only
be deemed a refusal to bargain, if it could be shown to be a delaying
tactic. This record reveals no evidence of delaying tactics on the part
of Respondent.
The Statute requires the parties to a collective bargaining agreement
to "meet a reasonable times and convenient places as frequently as may
be necessary, and to avoid unnecessary delays" (5 U.S.C. 7114(b)(3).
See also Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2, 5 FLRA 9 (1981). The Statute defines "collective
bargaining" as a "mutual obligation of the representative of an agency
and the exclusive representative of employees . . . to meet at
reasonable times and to consult and bargain in a good faith effort to
reach agreement . . . ." (5 U.S.C. 7103(a)(12)). I do not read into
this statutory mandate a requirement that the parties must meet in a
face-to-face encounter merely to seek clarification of a proposal. This
would violate the statutory mandate that its provisions "be interpreted
in a manner consistent with the requirement of an effective and
efficient Government" (5 U.S.C. 7101(b)). Face-to-face meetings are
time-consuming, expensive, and often difficult to arrange. Seeking
clarification of a proposal can be as effectively, and more efficiently
done by means of a phone call, or a memorandum. This is what Respondent
sought to do here.
Why the Union did not communicate the intent of proposals 4, 10, and
11 to Respondent, as requested, cannot be ascertained on the record.
Respondent made the request on May 5, 1982 and did not implement the new
audit system until October 1. All during this five-month period, the
Union knew that Respondent planned to implement the new system on
October 1, the beginning of the new appraisal period. See finding 17,
above. Yet the only communications from the Union to Respondent
concerned the proposals declared by Respondent to be non-negotiable, and
a suggestion that Respondent defer implementation of the change until
the Authority ruled on its negotiability petition.
On this record, I can conclude only that Respondent acted
responsibly, and in accord with its statutory responsibilities
concerning the Union's proposals on random sample of cases.
In view of this conclusion, it is unnecessary to reach other issues
raised by Respondent.
Ultimate Findings and Order
The General Counsel has not established, by a preponderance of the
evidence, that the alleged violations occurred.
Accordingly, the complaint should be, and it hereby is DISMISSED.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: February 6, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The Authority, in American Federation of Government Employees,
Local 1760, AFL-CIO and Department of Health and Human Services, Social
Security Administration, 15 FLRA No. 172 (1984), determined that Union
proposals 1, 2 and 7 were negotiable based upon this statement of the
Union's intent, the only such statement of intent appearing in the
record in that proceeding. However, on the basis of the more
comprehensive record in this proceeding, the Authority has decided to
reexamine its prior decision and, consistent herewith, today concludes,
in its Decision and Order on Motion For Reconsideration, that such
proposals are not negotiable.
/2/ We note that the Union has not excepted to the Judge's finding in
this regard, but has argued only that its proposals are within the duty
to bargain notwithstanding this finding.
/3/ In so concluding, we note particularly the contents of Exhibits 7
and 8 in the Stipulation referred to by the Judge in Finding 11 of her
Decision.
/4/ Section 7106(a) provides in relevant part:
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 hire, assign, direct, layoff, and retain employees . . .
;
(B) to assign work . . . (.)
/5/ See, e.g., U.S. Department of Treasury, Internal Revenue Service,
Philadelphia Service Center, 16 FLRA No. 105 (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).
/6/ See Department of the Treasury, Internal Revenue Service, Midwest
Regional Office, Chicago, Illinois, 16 FLRA No. 27 (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).
/7/ See cases cited at note 5, supra, and accompanying text; see
also American Federation of Government Employees, Local 644, AFL-CIO and
Department of Labor, Mine Health and Safety Administration, Morgantown,
West Virginia, 15 FLRA No. 170 (1984) (proposal 5).
/8/ See, e.g., American Federation of Government Employees, Local 32,
AFL-CIO and Office of Personnel Management, 17 FLRA No. 48 (1985);
International Brotherhood of Electrical Workers, Local 570, AFL-CIO-CLC
and Department of the Army, Yuma Proving Ground, Arizona, 14 FLRA 432,
432-34 (1984).
/9/ See, e.g., U.S. Department of Treasury, Internal Revenue Service,
Philadelphia Service Center, 16 FLRA No. 105 (1984); Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 15 FLRA No. 15 (1984); Internal Revenue Service and
Brookhaven Service Center, 14 FLRA 766 (1984).
/10/ Section 7116 provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . .
/11/ By agreement of the General Counsel and Respondent, the
following changes have been made by me in the Stipulation. The date
"July 11," in paragraph 24, first line, is changed to "July 19." Also,
Exhibits 17 and 18 are redesignated to indicate that Exhibit 17 is Mr.
Collender's memorandum of July 19, and Exhibit 18 is Mr. Marinaro's
memorandum of July 19. See footnote 3 to the General Counsel's brief,
at page 6.
/12/ The following abbreviations will be used in this decision. "TR"
refers to the transcript. Corrections to it are in the appendix to this
decision, and are made pursuant to 5 CFR 2423.19(r).
Other abbreviations to be used herein are as follows: "Jt" refers to
Joint Exhibit A. "Stip" refers to the Stipulation of Facts. "Exh."
refers to the exhibits to the Stipulation, to be followed by a page or
paragraph number, as appropriate. The page numbers are those written in
the lower right-hand side of the exhibit. "GCBr" refers to the brief of
the General Counsel, and "RBr" to that of Respondent.
Unless otherwise noted, all dates are in 1982.
/13/ The subject of the memorandum refers to the Union's request of
"6/19/82." This is apparently a typographical error, as the reference is
obviously to the Union's request of July 19, not June 19.
/14/ 5 CFR 2423.5 provides as follows:
Sec. 2423.5 Selection of the unfair labor practice procedure or
the negotiability procedure.
Where a labor organization files an unfair labor practice
charge pursuant to this part which involves a negotiability issue,
and the labor organization also files pursuant to Part 2424 of
this subchapter a petition for review of the same negotiability
issue, the Authority and the General Counsel ordinarily will not
process the unfair labor practice charge and the petition for
review simultaneously. Under such circumstances, the labor
organization must select under which procedure to proceed. Upon
selection of one procedure, further action under the other
procedure will ordinarily be suspended. Such selection must be
made regardless of whether the unfair labor practice charge or the
petition for review of a negotiability issue is filed first.
Notification of this selection must be made in writing at the time
that both procedures have been invoked, and must be served on the
Authority, the appropriate Regional Director and all parties to
both the unfair labor practice cases and the negotiability case.
Cases which solely involve an agency's allegation that the duty to
bargain in good faith does not extend to the matter proposed to be
bargained and which do not involve actual or contemplated changes
in conditions of employment may only be filed under Part 2424 of
this subchapter.
/15/ This is the Statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
/16/ This section provides:
If the Authority (or any member thereof or any individual
employed by the Authority and designated for such purpose)
determines after any hearing on a complaint under paragraph (5) of
this subsection that the preponderance of the evidence received
demonstrates that the agency or labor organization named in the
complaint has engaged in or is engaging in an unfair labor
practice, then the individual or individuals conducting the
hearing shall state in writing their findings of fact and shall
issue and cause to be served on the agency or labor organization
an order--
(A) to cease and desist from any such unfair labor practice in
which the agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective
bargaining agreement in accordance with the order of the Authority
and requiring that the agreement, as amended, be given retroactive
effect;
(C) requiring reinstatement of an employee with backpay in
accordance with section 5596 of this title; or
(D) including any combination of the actions described in
subparagraph (A) through (C) of this paragraph or such other
actions as will carry out the purpose of this chapter.
If any such order requires reinstatement of an employee with
backpay, backpay may be required of the agency (as provided in
section 5596 of this title) or of the labor organization, as the
case may be, which is found to have engaged in the unfair labor
practice involved.
/17/ Proposal 10 is:
If deficiency trends are indicated, the employee will be given
a reasonable period of time to improve in the deficient area(s).
After that time, the employee will be reviewed for improvement
only in the deficient area(s). If no improvement is noted, the
employee will be offered refresher training in the deficient
area(s) by EDTS.
Proposal 11 is:
Should an employee conclude that he/she has a basic
misunderstanding of the work in several areas that would preclude
either self-improvement and/or improvement with the assistance of
the technical assistant, the employee, upon request, will be
offered formal re-training by EDTS.
See finding 15, above.
/18/ Section 7106 provides:
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--
(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency; and
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted.
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the
agency mission during emergencies.
"(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work;
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/19/ Proposals that fall within areas (1), "Definition of Errors" and
(3), "Measuring Productivity," (see finding 15, above) are beyond the
scope of the complaint filed in this action. See paragraph 7(b) to
Exhibit 2, which names only "the random sample" as the subject involved.