[ v26 p848 ]
26:0848(99)NG
The decision of the Authority follows:
26 FLRA No. 99
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1454
Union
and
VETERANS ADMINISTRATION
Agency
Case No. 0-NG-1041
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) concerning the
negotiability of six proposals made by the Union during negotiations on
the impact and implementation of revised performance standards for
Adjusication Division employees.
II. Proposal 1
The Union should be permitted to bargain on the form of
employee participation allowed in the change of the performance
standards.
A. Positions of the Parties
The Agency contends that the Union did not request a written
allegation of nonnegotiability as required under section 2424.3 of the
Authority's Rules and Regulations. On this basis, it has moved to
dismiss the petition for review as to proposal 1.
The Union contends that it did not seek a written allegation from the
Agency because the Agency had stated its position on the proposal in an
August 2, 1984, memorandum. In the memorandum, the Agency stated that
"this opportunity for bargaining (about employee participation in
revising performance standards) took place when a supplemental agreement
was negotiated. Impact and implementation bargaining does not allow
reopening of supplemental bargaining(.)" The Union contends that the
proposal is not an attempt to negotiate another supplemental agreement.
B. Conclusion and Analysis
The petition for review as to proposal 1 is not properly before the
Authority.
In American Federation of Government Employees, Local 12, AFL-CIO and
Department of Labor, 26 FLRA No. 89, slip op. at 2-3 (1987), we held
that, where threshold duty to bargain issued are raised concerning a
proposal but the conditions for review of a negotiability issue under
section 2424.1 of our Regulations have not been met, we will dismiss the
petition for review of the proposal.
Under section 2424.1 of our Regulations, we will consider a petition
for review of a negotiability issue only where the parties are in
dispute as to whether a proposal is inconsistent with law, rule or
regulation. As noted above, the only issues raised in the present case
concern: (1) whether bargaining occurred on employee participation in
revising performance standards, and (2) whether the Union waived its
right to negotiate on the proposal when it negotiated the supplemental
agreement. The Agency does not argue, and thus there is no issue before
us, as to whether proposal 1 is inconsistent with law, rule or
regulation. Therefore, we will dismiss the Union's Petition for Review
as to that proposal, without prejudice to the Union's right to file a
negotiability appeal -- if the conditions governing review of
negotiability issues are met and if the Union chooses to file such an
appeal.
III. Proposals 2 through 6
Proposal 2
In the Performance Standards for Rating Specialists, timeliness
indicators should be sampled as SQC (Statistical Quality Control),
not spot checks, and the table of standard deviation should apply.
Proposal 3
In the Performance Standards for Senior Adjudicators,
timeliness indicators should be sampled as SQC with the table of
standard deviation for application.
Proposal 4
In the Performance Standards for Veterans Claims Examiners
(GS-9), timeliness indicators should be sampled as SQC with the
table of standard deviation for application.
Proposal 5
In the Performance Standards for all positions in the
Adjudication Division, spot checks should not be used as
timeliness indicators.
Proposal 6
In the Performance Standards for Program Clerks, Key
Responsibility #3 should specify a timeliness indicator.
A. Positions of the Parties
The Agency contends that the proposals are inconsistent with
management's rights to direct employees and to assign work, including
the establishment of performance standards and critical elements,
because they would prevent management from using its preferred method of
spot checks to measure the timeliness of employees' work. The Agency
states that the proposals would require it to use only the statistical
quality control method and the table of standard deviation to measure
timeliness. As a result, it would not be able to evaluate the
timeliness of employees' work on Special Projects and cases not computer
controlled.
The Union contends that the proposals do not restrict the Agency's
right to direct employees and to assign work. It argues that the
proposals are an attempt to negotiate procedures to be used to measure
the timeliness of employees' work and to negotiate appropriate
arrangements for employees adversely affected by implementation of
revised performance standards.
B. Conclusion and Analysis
For the reasons which follow, we find that proposals 2 throufh 6 are
outside the duty to bargain. They directly interfere with management's
rights to direct employees and to assign work under section
7106(a)(2)(A) and (B). They also are not negotiable procedures under
section 7106(b)(2) and do not qualify for consideration under section
7106(b)(3).
1. The proposals directly interefere with management's
right to direct employees and to assign work.
The proposals are concerned with how the Agency will sample
employees' work to measure its timeliness. Under these proposals, the
Agency would have to use the statistical quality control method with the
table of standard deviation to select the sample of cases to review.
Statistical quality control, according to the record, is based on random
selection of cases out of a computer. Since not all work which the
Agency wishes to measure is computer controlled, the Proposal would also
have to effect of preventing the Agency from evaluating the timeliness
of work which could not be selected out of a computer.
The Authority has previously held that union proposals which are
intended to favor a particular sampling technique and proscribe use of
auditing methods an agency deems most appropriate conflict with section
7106(a)(2)(A) and B of the Statute and are nonnegotiable. Social
Security Administration, Northeastern Program Service Center and
American Federation of Government Employees, Local 1760, AFL-CIO, 18
FLRA 437, 439-40 (1985) (proposals 1, 2, 5, and 7). See also American
Federation of Government of Government Employees, Local 1760, AFL-CIO
and Department of Health and Human Services, Social Security
Administration, 15 FLRA 909, 914 (1984), reversed Motion for
Reconsideration, 18 FLRA 932 (1985) (proposals 1, 2, and 7).
The proposals in the present case have the same substantive effect as
the proposals held to conflict with management's rights in the cited
cases. They would require the Agency to sample employees' work in a
particular way -- Statistical Quality Control -- in order to audit the
timeliness of the employees' work performance. Therefore, for the
reasons set forth in the Local 1760 cases, cited above, we find that
these proposals also directly interfere with management's rights.
2. The proposals do not involve procedures within the
meaning of section 7106(b)(2).
As found above, the proposals directly interfere with management's
right under section 7106(a)(2)(A) and (B) by prescribing the particular
method by which the Agency must sample employees' work for the purpose
of measuring its timeliness. Accordingly, they do not constitute
negotiable procedures within the meaning of section 7106(b)(2) of the
Statute. See American Federation of Government Employees, AFL-CIO, and
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
FLRA 604, 613 (1980), enforced as to other matters sub nom. Department
of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C.
Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
3. The proposals are not arrangements within the meaning
of section 7106(b)(3).
We turn now to the question of whether the proposals constitute
negotiable appropriate arrangements under section 7106(b)(3) of the
Statute. During the pendency of this case the Authority issued National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986), concerning section 7106(b)(3).
There we stated that henceforth we will determine whether a proposal
constitutes an appropriate arrangement for employees adversely affected
by the exercise of a management right by determining whether the
proposal "excessively interferes" with the exercise of management's
rights.
The threshold question in applying the Kansas Army National Guard
analysis is whether the proposal is an "arrangement" for adversely
affected employees. In Patent Office Professional Association and
Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29,
slip op. at 12-13 (1987), petition for review filed sub nom. Patent
Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26,
1987), we found that proposal 3.K., which prescribed criteria for the
establishment of performance standards and rating levels, did not
qualify for consideration under section 7106(b)(3). We reasoned that
the establishment of performance standards did not by itself adversely
affect employees. Any adverse effect would not occur until an action
was taken against an employee based on the application of those job
requirements to the employee. Thus, because proposal 3.K. was not an
"arrangement," it did not qualify for consideration under section
7106(b)(3), and therefore, we did not determine if the proposal was an
"appropriate arrangement."
Proposals 2 through 6 prescribe a method of sampling employees' work
for the purpose of measuring timeliness. It limits the scope of the
work which may be evaluated to only work which is computer controlled.
In our view, these proposals, like proposal 3.K. in Patent and
Trademark, prescribe criteria for the establishment of performance
standards. Accordingly, because the establishment of performance
standards does not by itself adversely affect employees -- for the
reasons set forth in Patent and Trademark -- we need not determine
whether the proposals are "appropriate arrangements" since they do not
qualify for consideration under section 7106(b)(3).
IV ORDER
The petition for review as to proposal 1 is dismissed without
prejudice to the Union's right to file a negotiability appeal if the
conditions governing review of negotiability issues are met and if the
Union chooses to file such an appeal. The petition for review as to
proposals 2 through 6 is dismissed.
Issued, Washington, D.C., April 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY