American Federation of Government Employees, Local 32 and Office of Personnel Management (Authority decision, March 27, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 32 proposed rotating claims review duties among Office of Personnel Management examiners every six months by alphabetical order, unless performance appraisals and standards accounted for the absence of rotation. The Authority found that mandatory rotation would prevent management from considering employees' skill and experience when assigning review work. It also found that the alternative would require bargaining over the content of performance standards. Both parts were outside the duty to bargain, so it dismissed the petition.

Decision snapshot

• Authority: Management's rights over work assignments and performance standards under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Negotiability petition dismissed.
• Key point: The proposal constrained management's choice of reviewers and the content of performance standards.

Full text (FLRA public release)

[ v17 p326 ]

17:0326(48)NG

The decision of the Authority follows:

17 FLRA No. 48

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO
Union

and

OFFICE OF PERSONNEL MANAGEMENT
Agency

Case No. O-NG-675

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents an issue relating to the negotiability of the following Union proposal.

Union Proposal

Since review work will be included as a performance element in the performance standards for Claims Examiner, and since reviewers get an advantage when they screen the work and perform the easy work, which disadvantages all other employees on the team, review duties will be rotated equally to all staff members every 6 months based on an alphabetic listing of examiners by last name unless the performance appraisal and performance standards take into account the failure to rotate. This will also apply to any changes to the assignment of work in ASD at this time.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The proposal, in effect, requires that the Agency rotate reviewing assignments equally among employees in the prescribed manner unless it is willing to revise performance standards and appraisals in some manner. With regard to the aspect of the proposal requiring six month rotation of the review function, the Agency states, without contravention: /1/

It is essential that the reviewer be able to identify errors quickly and bring them to the attention of the management team and the employee who has erred. A review function performed by those who are not sufficiently experienced or skilled to identify errors would be inimical to the accomplishment of (the Agency's) mission and not in the public interest. /2/

In this regard, the instant proposal is to the same effect as Union Proposal 1 in National Treasury Employees Union and Internal Revenue Service, Dallas District, 13 FLRA No. 9 (1983) which required that certain assignments be distributed among employees "on an equitable basis." In that case, the Authority, noting that the proposal would "prevent management from taking into account valid considerations in making work assignments," concluded that such proposal was inconsistent with management's right, pursuant to section 7106(a)(2)(B) of the Statute, "to assign work." Thus, based on Internal Revenue Service, Dallas District, and the reasons and case cited therein, the aspect of the Union Proposal concerning rotation of review work herein is also outside the duty to bargain.

Although the intent of the phrase "take into account the failure to rotate" is unclear in the instant proposal, it is nonetheless apparent that the second part of the proposal concerns the content of performance standards. In this respect, it is similar in effect to Union Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, 12 FLRA No. 6 (1983) which sought to provide trainees with time allowances to learn and implement a specified work procedure. The Authority found that proposal to be outside the duty to bargain, pursuant to section 7106(a)(2)(A) and (B) of the Statute, because it required negotiation of the content of performance standards, specifically the quantity and timeliness of employees' work product. In like manner, the Union Proposal herein, in part, seeks negotiations on performance standards and, based on Social Security Administration and the reasons and cases cited therein, is to that extent also outside the duty to bargain.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., March 27, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Union filed no reply to the Agency's Statement of Position.

/2/ Agency's Statement of Position at 4.