[ v39 p1169 ]
39:1169(101)NG
The decision of the Authority follows:
39 FLRA No. 101
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1482
(Union)
and
U.S. DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY
LOUISVILLE, KENTUCKY
(Agency)
0-NG-1780
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a petition for review filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two proposals relating to quality control and supervisory backups.
We find that Proposal 1 is nonnegotiable because it directly and excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We find that Proposal 2 constitutes a negotiable procedure under section 7106(b)(2) governing management's right to assign work.
II. Proposal 1
54-1 Quality Control Duties
The purpose of the quality control program is to ensure acceptable quality of the map sheet being produced. The form used in quality control will be the following enclosed form. The form designates that a sheet is of an acceptable quality or not acceptable. Individual quality ratings of production or quality inspection employees should only be performed by supervisory personnel.
A. Positions of the Parties
1. Agency
The Agency claims that Proposal 1 is nonnegotiable because it directly interferes with management's rights: (1) to assign employees under section 7106(a)(2)(A) of the Statute; (2) to assign work and determine the personnel by which Agency operations will be conducted under section 7106(a)(2)(B); and (3) to determine the methods, means, and technology of performing work under section 7106(b)(1). The Agency also contends that the last sentence of the proposal is nonnegotiable because it does not involve a condition of employment affecting unit employees.
The Agency contends that the first sentence of Proposal 1 concerns the definition, purpose, scope and content of the Quality Control Program, matters about which the Agency may elect, but is not required, to bargain under section 7106(b)(1) of the Statute. The Agency states that it chooses not to bargain on these matters because they concern the methods, means and technology of performing work.
The Agency contends that because the form provided for in the proposal prescribes "the scope, procedures and uses of the quality control processes and results," the proposal directly interferes with management's rights to assign work and direct employees and to determine the methods, means and technology of performing work. Agency's Statement of Position at 2. (The form provided for in the proposal is set forth in Appendix A to this decision.) The Agency also contends that the form which the Agency currently utilizes "specifies the scope of the program and includes guidelines and procedures for conducting quality control and specific work product reviews." Id. (The Agency form is set forth in Appendix B to this decision.) According to the Agency, the proposed form would establish "quality review and rating guidelines, procedures and processes for quality control review, types of jobs to be reviewed, the functions and purpose of the quality review reports," and would determine the levels at which the work product will be evaluated. Id. The Agency concludes that the proposal does not concern "the form on which quality control data and evaluations would be recorded but the substance of those records." Id.
The Agency contends that the third and last sentences of the proposal are nonnegotiable because the third sentence would "specify improperly the criteria for evaluating the quality of work products and bargaining unit employees" and because the last sentence would "impermissibly specify" the employees who "may not be assigned quality control program responsibilities" and would specify the "responsibilities of supervisory employees who are not included in the bargaining unit." Id. at 3.
The Agency notes that "[q]uality control is a vitally important part of DMA [Defense Mapping Agency] production operations." Id. According to the Agency, DMA is a "Combat Support Agency" which has a "compelling requirement" to provide military users with "complete, credible, effective, accurate, and usable mapping, charting and geodetic products, services and training, at the right place, in the right quantity and at the right time." Id. The Agency concludes, therefore, that it is "imperative that effective quality control of DMA work products be used in accomplishing the performance of its work and conducting its operations." Id.
The Agency notes that the term "means" as used in section 7106(b)(1) has been defined to mean "anything used to attain, or make more likely the attainment of, a desired end." Id., citing National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979). The Agency also notes that management may elect not to bargain over such matters. The Agency argues that the DMA "Quality Control Program is an integral part of the methods, means and technology of performing its work and the efficient accomplishment of its mission to provide quality, timely topographic, aeronautical, and planimetric products, imagery and extract feature analysis data and special topographic products of terrain data to support special military activities/operations." Id.
The Agency argues that the proposal is intended "to prevent bargaining unit employees from being assigned quality control duties and/or to preclude the use of quality control evaluations performed by non-supervisory unit employees from being used as a basis for evaluating the work of production employees in the bargaining unit." Id. The Agency also argues that the proposal would determine "how employees will be rated." Id. The Agency concludes that, to the extent the proposal "would require the [A]gency to review employees' work and conduct quality control reviews in [a] particular manner" and would "prescribe work product and related performance rating levels," the proposal violates management's rights to assign and direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute. Id. at 5 and 6.
The Agency maintains that the last sentence of the proposal "directs that supervisory personnel . . . outside the bargaining unit will perform individual quality ratings of production or quality inspection employees." Id. at 6. The Agency concludes that the proposal is outside the duty to bargain because it does not concern a condition of employment of unit employees and that the proposal directly interferes with management's right to assign employees and assign work.
Finally, the Agency contends that the proposal does not constitute an appropriate arrangement for employees adversely affected by the exercise of a management right "because the establishment of performance standards [does] not by itself adversely affect employees." Id. at 7.
2. Union
The Union claims that the subject matter of the proposal is "the Project Directors who perform the Quality Control Process known as Staff Review" in the Production Support Office (PSO), which is "the second phase of quality checks of maps." Union's Response at 2. The Union explains that the Project Directors are currently "assigning rating levels on the maps they do quality checks on" and that "[t]he rating levels . . . that can be assigned are above average . . . , average . . . , below average . . . , and unsatisfactory." Id. at 3. The Union notes that "[t]hese rating levels are used to directly rate the Project Leaders . . . [and] Operational Support Assistants" and that the levels are "used directly in the performance appraisals of the [Project Leaders and Operational Support Assistants.]" Id. The Union also notes that, as a result of the decision of a Regional Director of the Authority in Case No. 4-CU-80021, Project Directors and Project Leaders were included in the bargaining unit.
The Union explains that the intent of the proposal is to preclude bargaining unit employees from rating other bargaining unit employees and from performing "rating level functions" that will directly affect the performance appraisal of those other employees. The Union notes that the "only change in the work Project Directors do[] will be not checking the rating level" and concludes that "[i]f management wants the rating level assigned, then it should be performed by supervisory management," because the Project Director position is not a supervisory position. Id.
The Union argues that the proposal does not dictate to management to whom it will assign work, but only requires "that bargaining unit employees do not perform supervisory functions." Id. at 5. The Union contends that the proposal "makes no restrictions on which employees will perform quality control functions" and provides that "the only change in the duties of unit employees will be to not check one of the rating levels." Id.
As to the Agency's claim that the proposal directly interferes with management's right to determine the methods, means and technology of performing work because it prescribes the rating form, the Union argues that it has proposed a form that it believed "would be acceptable to management for a quality control procedure." Id. at 6. The Union explains that "[t]he rating levels have been changed to acceptable or not acceptable" as an appropriate arrangement for the adverse effect of having "bargaining unit employees . . . rate the quality of and/or the proficiency of the [Project Leaders/Operational Support Assistants]." Id. The Union also explains it has substituted on the form "the name of the Branch Chief as the person who is responsible for the quality and timely completion of the product, not the Project Leaders or [Operational Support Assistants]." Id.
The Union notes further that the proposed form provides that "the staff review form rate the quality of the sheet, not the Project Leader or [Operational Support Assistant] and that "instead of having four rating levels rating the employee, there are two levels to determine the acceptability of the sheet[']s quality." Id. In addition, the form does not provide for the Project Director to "complete the report or assign the evaluation." Id. Rather, the Union states, the proposed form would replace the "two procedures" of the current "staff review form" with "one procedure" in which the "Division [and] Branch Chief" will review all sheets. Id. Finally, the Union notes, the proposed form deletes the sentence that indicates that the rating level will be used in the Project Leader's or Operational Support Assistant's performance appraisal.
According to the Union, the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of a management right. The Union claims that "[t]he adverse [e]ffect is first level quality checkers (Project Leaders) being rated on a numerical scale by other bargaining unit employees." Id. at 7. The Union argues that "[t]his is a right reserved only for supervisory employees" and that "Project Directors do not have the training, authority or responsibility to make such a determination." Id. The Union also argues that management is "attempting to proliferate the ranks of non-unit employees by delegating out functions normally performed by supervisors [and] to deny these employees exercising their rights related to the Union." Id.
B. Analysis and Conclusions
We find that Proposal 1 directly and excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Consequently, we conclude that Proposal 1 is nonnegotiable.
1. The Meaning and Effect of Proposal 1
As presently constituted, the quality control process currently being employed by the Agency is implemented by a "staff review" form. See Appendix B. As described by the Union, and based on the "staff review" form used by the Agency, the quality control process begins when a map sheet, or other similar work product, is submitted by a Project Leader for "staff review" and is placed in the Quality Inspection folder. Project Leaders perform an initial review of the map sheet and are responsible for the quality of the map sheets to which they have been assigned. Union's Response at 2; Appendix B, "Staff Review Rating Guidelines," Paragraph 1.
The "Staff Review Report" form is routed to the office chief, as an indication that the map sheet is ready for review, and the Project Director responsible for reviewing the sheet completes the report, assigns the evaluation, and initials the form. Appendix B, "Staff Review Rating Guidelines," Paragraph 3. In evaluating the map sheet, the Project Director applies the criteria set forth in the form and assigns one of four possible ratings to the sheet: "Above Average," "Average," "Below Average," and "Unsatisfactory." Id. Union's Response at 2. The office chief also initials the report.
Reports on map sheets that are rated "Above Average" and "Average" are returned to the Quality Inspection folder and returned with the job. Reports on map sheets that are rated "Below Average" and "Unsatisfactory" are forwarded to the division chief, who signs the report, and transmits it to the branch chief, who also signs. The Project Leader responsible for the sheet also signs the report to acknowledge receipt of the evaluation.
Finally, the Staff Review Report form indicates that the report is intended to be used "to serve many functions." Appendix B, "Staff Review Rating Guidelines," Paragraph 4. Among the purposes to be served by the report is that it is used as "documentation for the Project Leader's performance appraisal." Id.
However, as revised by Proposal 1--in particular, by the "Staff Review" form set forth in Appendix A and incorporated by reference in the proposal--the quality control process proposed by the Union begins when the "Staff Review Report" is removed from the Quality Inspection folder and forwarded to the office chief to indicate that the accompanying map sheet is ready for review. The office chief completes the report, assigns the evaluation, and initials the form. As set forth in the form and required by the third sentence of Proposal 1, the office chief evaluates the quality of the map sheet in accordance with the prescribed criteria and assigns one of two possible ratings: "Acceptable" and "Not Acceptable." Appendix A, "Staff Review Rating Guidelines," Paragraphs 2 and 3.
After the "Staff Review Report" is completed by the office chief, it is forwarded to the division chief, who signs the form, and then to the branch chief, who also signs. The branch chief is responsible for the quality of the map sheets and the "type and number of errors" found in the sheet reflect the "extent and effectiveness of prior checking, particularly that accomplished by the branch chief[.]" Appendix A, "Staff Review Rating Guidelines," Paragraphs 2 and 3. See also Union's Response at 6.
Finally, as revised by the proposal, the "Staff Review Reports" employed in the quality control process would serve functions related to the quality of the map sheets, but would no longer be used to evaluate the performance of Project Leaders and Operational Support Assistants. The "Staff Review Report" form designed by the Union eliminates the provision requiring the form to be used as documentation for the performance appraisals of Project Leaders and Operational Support Assistants. Appendix A, "Staff Review Rating Guidelines," Paragraph 4.
In sum, as revised by Proposal 1, the quality control process, and particularly the "Staff Review Report," would be confined to evaluating the quality of the map sheets. Under the proposal, the evaluation of the map sheet and the assignment of the rating for the sheet will no longer be performed by a Project Director, but by the office chief. Moreover, the Agency would no longer use four rating levels, but would be required to use only the two levels prescribed by the proposal. The Agency would also be required to use evaluation criteria in rating the map sheets that are different from the criteria currently in use. Compare Appendix A, "Staff Review Rating Guidelines," Paragraph 2 with Appendix B, "Staff Review Rating Guidelines," Paragraph 2. Finally, under the proposal, the branch chief rather than the Project Leader is responsible for the quality of the map sheet.
The Union acknowledges that the proposed form deletes the sentence that indicates that the rating level will be used in the Project Leader's or Operational Support Assistant's performance appraisal. Union's Response at 6. As explained by the Union, the "Staff Review Report" is intended to be used to "rate the quality of the sheet, not the Project Leader or [Operational Support Assistant]." Id. In other words, the proposal would preclude management from using the results of the evaluation of individual map sheets in the performance appraisals of the Project Leaders or Operational Support Assistants who produced the sheets.
The Union also explains that the intent of the proposal is to preclude bargaining unit employees, that is, Project Directors, from rating other bargaining unit employees, that is, Project Leaders and Operational Support Assistants. The Union contends that the "only change" in the duties of Project Directors that would result from the proposal is that Project Directors would no longer be "checking the rating level." Union's Response at 3. The Union argues that the proposal does not prescribe to whom management will assign that supervisory function.
In this connection, we find the proposal to be ambiguous. While the quality control process as restructured by the proposal clearly would preclude Project Directors from rating map sheets, the functions previously performed in that process by the Project Directors are reassigned to a specific official; that is, whereas the process established by the Agency requires Project Directors to "complete the report" and "assign the evaluation," the revised process assigns those duties to the office chief. Compare Appendix B, "Staff Review Rating Guidelines," Paragraph 3 with Appendix A, "Staff Review Rating Guidelines," Paragraph 3. On the other hand, the fourth sentence of the proposal simply requires that "supervisory personnel" perform the rating function. For purposes of determining the negotiability of the proposal, however, it is unnecessary to resolve this ambiguity; whatever the Union's intent as to who will perform that function, it is clear that the proposal would preclude the Agency from assigning the task to Project Directors.
2. The First Sentence of the Proposal Directly Interferes with Management's Rights to Direct Employees and Assign Work
The first sentence of Proposal 1 provides that "the purpose of the quality control program is to ensure the acceptable quality of the map sheet being produced." Based on the record, we conclude that the intent of the first sentence is to restrict the uses to which the results of the quality control review process can be put. Put differently, the first sentence of Proposal 1 is designed to preclude the Agency from using the quality control evaluations of individual map sheets as part of the performance appraisals of Project Leaders and Operational Support Assistants. We noted above that, as revised by Proposal 1, and implemented by the "staff review" form set forth at Appendix A, the quality control process would "rate the quality of the sheet, not the Project Leader or [Operational Support Assistant]." Union's Response at 6.
In our view, the first sentence of Proposal 1 would revise the quality control process to limit the purposes for which the results of that process may be used. In other words, the effect of the first sentence is to preclude the Agency from using the evaluations of the work product of employees as a basis for the performance appraisals of those employees. Under the proposal, the quality control process is confined to ensuring only the quality of the work product.
Proposals which limit the manner in which, or the method by which, management evaluates the performance of employees directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244, 247-48 (1990) (Chula Vista District). Because the first sentence of Proposal 1 would confine the Agency's quality control process to ensuring only the quality of the map sheets, and would preclude the use of the results of that process for appraising the performance of the Project Leaders or Operational Support Assistants who produced the map sheets, we find, consistent with Chula Vista District, that the first sentence of the proposal directly interferes with management's rights to direct employees and assign work. We will address the question of whether the first sentence of the proposal constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute in Section II.B.4 of this decision, below.
We note that it is irrelevant that the Agency might be able to assess the quality of the work performance of Project Leaders and Operational Support Assistants in some manner other than by use of the results of the quality control process. Management has the right to determine the methods it will use to evaluate employee performance and the fact that it might have used some other method to appraise the quality of the work of Project Leaders and Operational Support Assistants does not prevent it from deciding to use the results of the quality control process for that purpose. See Chula Vista District, 38 FLRA at 248.
3. The Second, Third, and Fourth Sentences of the Proposal Directly Interfere with Management's Rights to Direct Employees and Assign Work
The second sentence of Proposal 1 requires the Agency to use the form designed by the Union to implement the quality control process. The third sentence specifies the ratings that the Agency will use to evaluate map sheets. The fourth sentence requires the Agency to assign only supervisory personnel to evaluate map sheets. As outlined above, the form required by the second sentence of the proposal not only implements but also revises the Agency's quality control process. The major revisions effected by the form prescribed in the proposal are reflected in the third and fourth sentences, namely, the reduction in number of rating levels, the determination of the content of those rating levels, and the limitation on the personnel who can be assigned the task of rating map sheets.
Proposals that prescribe the number of rating levels whereby management will evaluate an employee's performance, and the criteria by which employees' performance will be evaluated, directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See Service and Hospital Employees International Union and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 533 (1990) (VA Medical Center, Milwaukee). Because the second and third sentences require management to use two rating levels in evaluating the quality of employees' work product, and to use the criteria for evaluating the quality of employees' work product that are set forth in Appendix A, "Staff Review Rating Guidelines," Paragraph 2, we find, consistent with VA Medical Center, Milwaukee, that those sentences directly interfere with management's right to direct employees and assign work. See also National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 473 (1991), petition for review as to other matters filed sub nom. U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. Jan. 24, 1991); Philadelphia Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 38 FLRA 59, 61-2 (1991).
Finally, proposals that require an agency to assign particular tasks to particular individuals, or preclude management from assigning particular functions to particular individuals, directly interfere with management's right to assign work. See National Treasury Employees Union, Chapter 12 and U.S. Department of the Treasury, Internal Revenue Service, Birmingham, Alabama, 36 FLRA 70, 73-4 (1990) (Internal Revenue Service, Birmingham). Because the fourth sentence of Proposal 1 would require supervisory personnel to evaluate map sheets, and would preclude management from assigning that function to Project Directors, we find, consistent with Internal Revenue Service, Birmingham, that the fourth sentence of the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA No. 110 (1991); Department of Defense, Office of Dependents Schools and Overseas Education Association, 28 FLRA 871, 874-75 (1987).
Moreover, we conclude that Proposal 1 in this case is distinguishable from the proposal at issue in U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466 (1990) (Northeastern Program Service Center). The proposal in Northeastern Program Service Center concerned the particular form that unit employees would use to apply for a vacant position. We found the proposal to be a negotiable procedure under section 7106(b)(2) because it did not preclude the agency from obtaining the information that it needed to assess employees' qualifications.
Proposal 1, however, concerns more than just the form that will be used to evaluate the quality of map sheets. As indicated by the record, the form involved in this case requires a complete restructuring of the performance appraisal process: reassigning responsibility for evaluating the map sheets, changing the criteria used in that evaluation, and precluding the use of the results of the evaluation in the performance appraisals of Project Leaders and Operational Support Assistants. See, in particular, Appendix A. The effect of Proposal 1, therefore, is substantive, not procedural.
4. Proposal 1 Does Not Constitute an Appropriate Arrangement Within the Meaning of Section 7106(b)(3) of the Statute
The Union also claims that Proposal 1 constitutes an "appropriate arrangement" under section 7106(b)(3) of the Statute. To determine whether Proposal 1 constitutes an appropriate arrangement, we must determine whether the proposal is (1) intended to be an "arrangement" for employees adversely affected by the exercise of a management right, and (2) "appropriate" because it does not excessively interfere with the exercise of management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).
In determining whether a proposal is an "arrangement" for employees adversely affected by the exercise of management's rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Kansas Army National Guard at 31. The Union claims that, by precluding Project Directors from evaluating the quality of map sheets, the proposal is intended to mitigate the adverse effect on "first level quality checkers (Project Leaders)" of "being rated on a numerical scale by other bargaining unit employees." Union's Response at 7. The Union does not explain, however, how unit employees are adversely affected by having other unit employees evaluate their work product on a numerical scale. We think it is reasonably foreseeable, nevertheless, that such a system of "peer review" could have an adverse effect on the working relationships of unit employees and on those unit employees, namely, Project Directors, who are assigned "supervisory" duties. Consequently, by precluding unit employees from evaluating the quality of map sheets, the proposal would mitigate against those results and would constitute an "arrangement" within the meaning of section 7106(b)(3).
Because we find that the prohibition against unit employees evaluating the work of other unit employees as set forth in Proposal 1 constitutes an "arrangement," it is necessary to determine whether it is an "appropriate" arrangement. An "arrangement" is "appropriate" if it does not excessively interfere with the exercise of a management right. In order to determine whether Proposal 1 excessively interferes with management's rights to direct employees and assign work, we must determine whether the burden on management's rights is disproportionate to the benefits to employees conferred by the proposal. See Kansas Army National Guard at 33.
In the absence of any evidence in the record concerning the effect on unit employees, particularly Project Directors, of the existing system of "peer review," it is difficult to determine how much weight to give to the benefit afforded employees by the proposed "arrangement." The burden imposed by Proposal 1 on management's ability to assign work, however, is that management is precluded from assigning unit employees the task of evaluating the quality of map sheets produced by other unit employees. As explained by the Union, the proposal would not allow management to assign the task of evaluating the quality of map sheets to Project Directors or any other unit employees. In our opinion, such a complete prohibition on the assignment of work is disproportionate to the benefits that might result from the proposal for unit employees. Consequently, we find that the restriction on work assignment in Proposal 1 excessively interferes with management's right to assign work under section 7106(a)(2)(B) and conclude that, in this respect, Proposal 1 does not constitute an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. See Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA No. 10 (1991), slip op. at 8-9 (DODDS) (proposal absolutely prohibiting management action without exception held to excessively interfere with management's right).
The Union also indicates that the two rating levels provided in the proposal, as opposed to the four levels in the existing system, constitute an "appropriate arrangement" for employees whose work is being evaluated by other unit employees. The Union does not explain, however, why this aspect of the proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right. In particular, the Union does not explain how employees are adversely affected as a result of having their work evaluated on the basis of four rating levels, ranging from "Unsatisfactory" to "Above Average," or how they are adversely affected as a result of being rated by other unit employees using those rating levels.
We are also unable to determine that there are any "reasonably foreseeable" adverse effects on employees that would result from the Agency's decision to use four rating levels or to have unit employees evaluate other unit employees using those four levels. Consequently, we are unable to determine that the two rating levels provided by the proposal afford unit employees any particular benefit mitigating the adverse effects of the exercise of a management right. We conclude, therefore, that the two rating levels required by the proposal do not constitute an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute.
The Union does not specifically claim that the first sentence of the proposal constitutes an "appropriate arrangement." We assume, for purposes of this decision, that by precluding management from using the results of the quality control program to evaluate unit employees the first sentence constitutes an "arrangement" for employees adversely affected by the "peer review" system. However, because the proposal would confine the use of quality review results to ensuring the quality of the map sheets, and eliminate the use of those results for appraisal purposes, we find that the first sentence excessively interferes with management's rights to direct employees and assign work. In our opinion, the complete prohibition established in the first sentence is disproportionate to the benefit to employees afforded by that sentence. We conclude, therefore, that the first sentence of Proposal 1 is not an "appropriate arrangement" under section 7106(b)(3). See DODDS, slip op. at 8-9.
Finally, because we conclude that Proposal 1 directly and excessively interferes with management's rights to direct employees and assign work, we do not reach the Agency's argument that the proposal directly interferes with management's rights under section 7106(b)(1) of the Statute.
Accordingly, we conclude that Proposal 1 is nonnegotiable because it directly and excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
III. Proposal 2
53-1 Supervisory Backups
The following procedure will be followed in assigning backups to the supervisor in his/her absence:
The supervisor will ask each of the employees they directly supervise if they wish to be a supervisory backup. The supervisor will compile a list indicating the employees interested in serving as a backup. The list of backups will be posted in the work area so that any employee wishing to follow the chain of command can contact the correct person.
A supervisor will give written objective job related reasons for not assigning an employee as his/her backup. This documentation will be made available to the Union for review upon request. The documentation will be locally maintained for a period of one (1) year.
A. Positions of the Parties
1. Agency
The Agency contends, as a threshhold issue, that the proposal "concerns the filling of positions outside the bargaining unit" and, therefore, that the proposal does not concern "a condition of employment affecting bargaining unit employees." Agency's Statement of Position at 7. The Agency also contends that the proposal "prescribes procedures for assigning supervisory responsibilities on a temporary basis and prescribes certain supervisory duties" and concludes that the proposal directly interferes with management's right to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). Id.
As to the "threshhold issue," the Agency contends, citing the test set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986), that Proposal 2 does not pertain to bargaining unit employees because it concerns nonbargaining unit positions, that is, supervisory positions. The Agency also contends that the proposal has no effect on working conditions because "there is no direct connection between the proposal and the work situation or employment relationship of bargaining unit employees, since the proposal deals with positions outside the bargaining unit[.]" Id. at 9. The Agency claims that proposals concerning the filling of supervisory positions do not concern the conditions of employment of bargaining unit employees.
The Agency also contends that the test established by the Authority to determine "questions involving the duty to bargain over proposals concerning conditions of employment of unit employees which also affect employees or positions outside the unit . . . is not applicable[.]" Id. at 10. The Agency argues that the "vitally affects" test applies in cases where a proposal would affect both bargaining unit and nonbargaining unit employees. The Agency notes that Proposal 2 "deals exclusively with supervisory positions outside the bargaining unit" and concludes that the "vitally affects" test "is not applicable in this case[.]" Id.
The Agency claims that the proposal "would require management to justify not selecting an employee as an acting supervisor." Id. at 8. The Agency interprets this aspect of the proposal as being intended to permit employees "to challenge such decisions under the negotiated grievance procedure." Id. The Agency argues that disputes concerning the filling of supervisory positions "may not be resolved under negotiated grievance/arbitration procedures absent a specific stated intent on the part of management to have those procedures encompass such issues." Id.
As to the effect of Proposal 2 on management's rights, the Agency claims that the proposal "requires [management to] assign work only to certain 'volunteer' employees" and that, by limiting work assignments to volunteers, the proposal directly interferes with management's right to assign work. Id. The Agency also claims that the proposal directly interferes with management's right to assign employees because it prescribes the qualifications of employees assigned to be backup supervisors, namely, that they must be volunteers.
The Agency contends that the proposal "conflicts with [management's] right to determine the type of employees who could be used as acting supervisors under section 7106(b)(1) of the Statute." Id. The Agency argues that by prescribing that "employees must volunteer for such assignments," the proposal determines the "types" of employees "who could fill acting supervisor positions[.]" Id. at 9. The Agency concludes that the proposal is therefore negotiable only at the election of the Agency under section 7106(b)(1).
Finally, the Agency argues that the proposal would "preclude management from assigning employees as acting supervisors who object to such assignments" and concludes that the proposal therefore excessively interferes with management's rights to assign employees, direct employees, and assign work under section 7106(a)(2)(A) and (B). Id. at 7.
2. Union
The Union describes Proposal 2 as being designed "to improve communication between the supervisor and employee." Union's Response at 7. The Union explains that the proposal "requires the supervisor to ask each employee they supervise if they are interested in serving as backup," to maintain a list documenting the responses of each employee, and to post a "list which documents the employees the supervisor has picked for backup[.]" Id. The Union notes that the posting of the list addresses "a significant problem" concerning "communication between supervisor and employees" by enabling "the employee who needs to contact an employee designated by their supervisor" for "leave usage" or "job assignment[.]" Id. at 8.
The Union also states that the proposal is not intended "to restrict who the supervisor can pick as their backup" or to tell "the supervisor that they can not pick any individual for their backup from any source," for example, from "employees who don't volunteer" or who "are not under the direct supervision of the supervisor[.]" Id. The Union maintains that the "selection of an employee as a supervisory backup does not entail the filling of a position" because the supervisory backup is an "unofficial position" that would not require "documentation" or "standard forms." Id. (emphasis in original) According to the Union, the selection of a backup supervisor does not involve an assignment of work "because the employee usually continues to perform their own work and only serves as a point of contact for fellow employees." Id.
The Union explains that the requirement that the supervisor "give objective [job-related] reasons for choosing an employee as a backup" is intended to deal with favoritism and "lack of merit in promotions." Id. The Union claims that management makes "staffing decisions" based on unjustified criteria and that because of "pre-selection" the Union needs to see "the rationale behind personnel decisions." Id. According to the Union, because "consideration of the selection of backup" is "the first step in pre-selecting an employee for a [higher-graded] position," the "only reason that management would object to the union proposal is that they have no reason [whatsoever] for making decisions [and] they feel it is wholly within management's discretion." Id. (emphasis in original).
The Union states that, in view of its explanation of the intent of the proposal, the proposal "in no way restricts management from picking any employee as backup" and that, therefore, the proposal does not directly interfere with management's right to assign employees or to assign work. Id. at 9. The Union also contends that the proposal concerns the conditions of employment of bargaining unit employees because the proposal concerns communication between supervisor and employees and the elimination of "pre-selection" and favoritism. Id. The Union argues that the proposal does not concern a "non-unit position" because the backup "is of extremely short duration" and "does not have the authority of a supervisor[.]" Id. The Union concludes that the supervisory backup is not a position.
The Union also argues that the proposal is an appropriate arrangement for employees adversely affected by the exercise of a management right. The Union asserts that the adverse effect "is poor communication, the lack of a uniform[,] fair procedure, the employer constantly changing working conditions by continuously using different procedures to select backups, the first step in [favoritism] and pre-selection, and numerous potential problems for employees needing to contact an individual designated as supervisor and not knowing who that person is." Id.
B. Analysis and Conclusions
Proposal 2 concerns the selection of the unit employees who may be designated as "supervisory backup" in the absence of the supervisor. While the record is not clear, based on statements by the Union that are not contradicted by the Agency, it appears that the term "supervisory backup" does not involve the detail of an employee to a supervisory position. Rather, the employee designated as "supervisory backup" continues to perform the work of his or her position, while assuming additional responsibilities regarding, for example, approval of leave requests and assignment of work. It also appears that employees would be designated as "supervisory backup" for only short periods of time. See Union's Response at 8-9. Interpreted in this manner, we find that Proposal 2 constitutes a negotiable procedure under section 7106(b)(2) of the Statute for selecting those unit employees who may be designated as "supervisory backup."
1. Proposal 2 Concerns a Matter That "Vitally Affects" the Conditions of Employment of Bargaining Unit Employees
The Agency contends that Proposal 2 is outside the duty to bargain because it pertains to the filling of nonunit positions and thus does not concern the conditions of employment of unit employees. We disagree.
The fact that a proposal pertains to or has an effect on nonunit employees or positions is not in and of itself determinative of the negotiability of the proposal. See International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 38 FLRA 1451, 1454-55 (1991) (Naval Aviation Depot). Rather, such a proposal is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees and (2) is consistent with applicable law, including the management rights provisions of section 7106 of the Statute, and regulations. Id. A proposal having an effect on nonunit employees or positions will be found to "vitally affect" the conditions of employment of unit employees if the effect of that proposal upon unit employees' conditions of employment is "significant and material, as opposed to indirect or incidental." Id., slip op. at 5.
We find that Proposal 2 "vitally affects" the conditions of employment of unit employees because we conclude that the effects of the proposal on those employees are significant and material. As explained above, the proposal concerns the conditions under which unit employees will be assigned supervisory responsibilities in addition to the duties of their positions and the proposal concerns the conditions under which unit employees will be afforded the opportunity to gain supervisory experience. It is clear that in either or both of these respects the proposal has a direct effect on the work relationship of unit employees so as to constitute a matter pertaining to their conditions of employment. See National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 594 (1990). Moreover, it is equally clear that the subject matter of the proposal--the assignment of additional duties and job experience related to promotional potential--has a significant and material effect on unit employees' conditions of employment.
Consequently, we conclude that although Proposal 2 concerns the work of nonunit positions, the proposal "vitally affects" the conditions of employment of unit employees and, unless otherwise precluded, is within the duty to bargain under the Statute. We turn, therefore, to the question of whether the proposal is otherwise negotiable under the Statute.
2. Proposal 2 Does Not Directly Interfere with Management's Rights to Assign Employees, to Assign Work, or to Determine the Types of Employees Assigned to Any Organizational Subdivision, Work Project, or Tour of Duty
As to the Agency's contention that Proposal 2 directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute, because the proposal does not concern details of unit employees to supervisory positions, we find that the proposal does not involve the exercise of that right. Management's right to assign employees under section 7106(a)(2)(A) is the right to assign employees to positions. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990). As we explained above, the proposal concerns the assignment of additional responsibilities to unit employees who remain in their assigned positions. Consequently, we conclude that Proposal 2 does not involve the exercise of management's right to assign employees under section 7106(a)(2)(A).
The Agency also contends that Proposal 2 is nonnegotiable under section 7106(b)(1) of the Statute because, by requiring that management designate "supervisory backup" from among "volunteers," the proposal concerns the "type" of employee assigned to a work project or tour of duty. We disagree. We have defined the term "types" as used in section 7106 to encompass "the right to make determinations based on job-related differences between employees." See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 211, 215-20 (1990). For example, the right to determine the "types" of employees to be assigned to a tour of duty extends to the decision to assign "entry level" employees, to assign "journeyman" employees or "trainees." Id. at 216-17.
The difference between "volunteers" and "non-volunteers" is not such a job-related difference. The difference between "volunteers" and "non-volunteers" relates to the willingness of employees to undertake a given task, not to "the necessary qualifications, including training and experience, for employees to perform certain work." Id. at 216. We conclude, therefore, that by requiring management to select from among volunteers when deciding which unit employees may serve as "supervisory backup," the proposal does not concern management's decision as to the "type" of employee to be assigned to a work project within the meaning of section 7106(b)(1).
Finally, the Agency claims that Proposal 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it limits the assignment of "supervisory backup" responsibility to volunteers. We disagree.
Proposals that require management to assign work to particular employees and preclude management from assigning that work to other employees directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 30 FLRA 650, 653 (1987). Proposal 2 in this case would not require the assignment of "supervisory backup" duties to any particular volunteer, nor would the proposal preclude the assignment of those duties to personnel other than volunteers.
The proposal requires supervisors to solicit volunteers for "supervisory backup" responsibility from the employees under their supervision, to prepare and maintain a list of the employees who volunteer, to prepare and post a list of those employees whom they select, and to notify those whom they do not select with an explanation of the reasons for the nonselection. As worded, therefore, the proposal preserves the discretion of the supervisors to determine the qualifications they believe necessary for a potential "supervisory backup," to determine whether any of the volunteers possess those qualifications, and to select the employees whom they will designate as possible "supervisory backup."
Moreover, as worded, the proposal does not preclude supervisors from designating any other personnel as "supervisory backup." The Union also explains that the proposal is not intended to prevent supervisors from designating their "supervisory backup" from some other source, including "employees who don't volunteer" and employees who are not under their supervision. Union Response at 8. Because we find that the Union's explanation is consistent with the wording of the proposal, we will adopt that interpretation for purposes of our decision. We conclude, therefore, that Proposal 2 prescribes the steps supervisors will follow in creating a list of unit employees who are possible "supervisory backups," from which list supervisors may, but are not required to, designate the employees who will be their "backup."
Interpreted in this manner, Proposal 2 does not directly interfere with management's right to assign work. Rather, the proposal merely establishes the procedures management will follow in assigning "supervisory backup" responsibilities. Consequently, we find that Proposal 2 is negotiable under section 7106(b)(2) of the Statute.
We specifically note the Agency's argument that the proposal would preclude management from assigning as acting supervisors employees who object to such assignments. Because we interpret the proposal as permitting supervisors to designate "supervisory backup" from any "source," including, for example, employees who do not volunteer, we reject the Agency's argument.
We also note the Agency's claim that by requiring management to "justify" not selecting an employee as a "supervisory backup," the proposal would subject management's decision as to the filling of supervisory positions to arbitral review. However, as we explained above, the proposal does not concern the filling of supervisory positions, but the procedures that will govern the assignment of supervisory duties to unit employees, including providing reasons for the decision not to select an employee. The Agency's argument that the proposal would subject to arbitral review the selection of employees to fill supervisory positions is therefore inapposite.
Moreover, proposals which require management to provide the reasons for a given action constitute negotiable procedures under section 7106(b)(2). See AFSCME, Local 2027 and ACTION, 27 FLRA 191, 196 (1987) (Chairman Calhoun concurring). See also Pennsylvania National Guard and Association of Civilian Technicians, 35 FLRA 478, 487 (1990). Consequently, we reject the Agency's argument that the proposal is nonnegotiable because it would require management to provide reasons for not selecting an employee as a possible "supervisory backup."
Because we conclude that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute, we do not reach the Union's claim that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3).
IV. Order
The petition for review as to Proposal 1 is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 2.(*)
APPENDIX A
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
STAFF REVIEW REPORT
| DATE_________ | ||
| LINE NO.___________ | PRODUCT NAME_______________ | |
| PRODUCT ID________ | SHEET ID______________ | |
| EVALUATION | TYPE OF JOB | |
| __ACCEPTABLE __NOT ACCEPTABLE | __CCM | __Compilation |
| __Data Bases | __Combination | |
| PSO Chief___ | __TR | __Color Separation |
| __Level I | Contract Color Separation |
|
| Level II | ||
| Project Leader/Division Reviewer | F.E. M/C | __Other__ |
| Project Director | F.E. IA | |
| Branch Chief | F.E. TA | |
| Division Chief | I-C IA | |
| Remarks:
________________________________ _________________________________________ _________________________________________ _________________________________________ _________________________________________ _________________________________________ |
||
| Nonconformances:
_________________________ _________________________________________ _________________________________________ _________________________________________ |
See Rating Guidelines on reverse side.
STAFF REVIEW RATING GUIDELINES
1. All sheets submitted for Staff Review are presumed to be free of any defect. Nevertheless, the type and number of errors found reflect the extent and effectiveness of prior checking, particularly that accomplished by the Branch Chief, who is responsible for the quality and the timely completion of their [sic] assignments.
2. The evaluation of the quality of the sheet will be based on the following
a. ACCEPTABLE The sheet subsequent to Staff Review
Does not require resubmission to PSO.
b. NOT ACCEPTABLE The sheet subsequent to Staff Review
Requires resubmission to PSO.
3. The Staff Review Report as part of the Quality Inspection folder, will have the Line No., Product ID, Product Name, and Sheet ID lines completed. The report will be removed from the quality folder and routed to the PSO Chief as an indication the sheet is ready for Staff Review. The Chief PSO will complete the report, assign the evaluation, and initial.
The Staff Review report will be routed to the appropriate division chief, who will sign it and forward it to the branch chief. The branch chief signs the form. After the form is completed it is returned to the Quality Inspection Folder.
4. Utilization of this system will allow the Staff Review Report to serve many functions. It will notify the PSO Chief when a sheet is submitted for Staff Review and also when the Review is complete. It informs the division chief of the quality of work produced within the division. Additionally, the system will ensure more uniformity of quality throughout LUO.
APPENDIX B
STAFF REVIEW REPORT
| DATE_________ | ||
| LINE NO.___________ | PRODUCT NAME_______________ | |
| PRODUCT ID________ | SHEET ID______________ | |
| EVALUATION | TYPE OF JOB | |
| __Above Average | __Below Average __CCM | __Compilation |
| __Average | __Unsatisfactory __Data Bases | Compilation |
| PD______ | PMO CHIEF______________ __TR | __Color Separation |
| __Level I | Contract Color Separation |
|
| Level II | ||
| Project Leader/Division Reviewer | ||
| Branch Chief | ||
| Division Chief | ||
| Nonconformances: |
_________________________________________ _________________________________________ _________________________________________ _________________________________________ _________________________________________ _________________________________________ |
|
| Remarks: |
_________________________________________ _________________________________________ _________________________________________ _________________________________________ |
See Rating Guidelines on reverse side.
HTC(LUO) Form 8560-9
October 1986
STAFF REVIEW RATING GUIDELINES
1. All sheets submitted for Staff Review are presumed to be ready for printing and therefore free of any defect. Nevertheless, the type and number of errors found reflect the extent and effectiveness of prior checking, particularly that accomplished by the Project Leaders (Division Reviewers in IA and TA) who are responsible for the quality and timely completion of their assignments.
2. The evaluation of PL, OR, or OSA effectiveness will be based on the following conditions:
a. Above Average (3 points) - The sheet subsequent to Staff Review
(1) Is void of any documented nonconformances.
(2) Is absent of any major irregularities.
(3) Contains limited insignificant imperfections.
b. Average (2 points) - The sheet subsequent to Staff Review
(1) Is void of any documented nonconformances.
(2) Contains several minor irregularities, but falls short of numerous irregularities.
(3) Does not require resubmission to PMO.
c. Below Average (1 point) - The sheet subsequent to Staff Review
(1) Contains one or more documented nonconformances.
(2) Does not require resubmission to PMO.
(3) Contains numerous minor irregularities.
d. Unsatisfactory (0 points) - The sheet subsequent to Staff Review
(1) Is returned for rework with a documented nonconformance.
(2) Requires resubmission to PMO.
3. The Staff Review Report (HTC(LUO) Form 8560-9), as part of the Quality Inspection folder, will have the Line No., Product ID, Product Name, and Sheet ID lines completed. The report will be removed from the quality folder and routed to the PMO Chief as an indication the sheet is ready for Staff Review. The project director responsible for the sheet will complete the report, assign the evaluation, and initial. The PMO chief will also initial the completed report.
If the Staff Review is rate[d] "Average" or "Above Average", the report will be returned to the folder and be sent back with the job.
If the Staff Review is rated "Below Average" or "Unsatisfactory", the report will not be returned directly to the folder. Instead, it will be routed to the appropriate division chief, who will sign it and forward it to the branch chief. The branch chief signs the form [and] then the Project Leader/Division Reviewer signs to acknowledge receipt of the evaluation. After the form is completed it is returned to the Quality Inspection folder.
4. Utilization of this system will allow the Staff Review Report to serve many functions. It will notify the PMO chief when a sheet is submitted for Staff Review and also when the review is complete. It informs the division chief of the quality of work produced within the division. It also serves as documentation for the Project Leader's performance appraisal. Additionally, the system will ensure more uniformity of quality throughout the LUO.
HTC(LUO) Form 8560-9 (Reverse)
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ In finding that Proposal 2 is negotiable, we express no judgment as to the merits of the proposal.