U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

American Federal of Government Employees, Local 3529 and Defense Contract Audit Agency, Central Region, Irving, TX, 0-NG-2514, May 23, 2001, 57 FLRA No. 43.

Because proposals making the use of audit software contingent on the agreement of the auditor and/or the union president concern the methods and means of performing work, they are negotiable at the election of the agency even though they also affect management's rights to direct and assign employees and to assign work. The majority, Member Wasserman dissenting, refused to address the union's further claim that, under the terms of a still effective expired contract requiring the agency to bargain on § 7106(b)(1) matters, the agency had a statutory duty to bargain on the proposals. "Authority orders in negotiablity cases are designed to enforce an agency's statutory--not purely contractual--obligation to bargain."

Proposals precluding the agency from lowering an employee's performance evaluation based on the employee's refusal to use agency-approved audit software, and from holding an auditor responsible for the inclusion of a particular kind of file in an "working paper package" are nonnegotiable because they affect management's rights to direct employees and assign work. FLRA rejected the union's claim that they constitute one of the § 7106(b) exceptions to management's § 7106(a) rights.

Although proposals Nos. 1 and 10—allowing individual auditors to decide whether or not they will use the agency's APPS (Audit Performance Planning System) software in performing audits, and permitting auditors to decide on the extent to which they will use electronic working papers, including APPS, in performing audits—affect management's rights to assign and direct employees and do not constitute (b)(2) procedures, they deal with methods and means and thus are bargainable only at the election of the agency. (The union didn't claim that these proposals constituted § 7106(b)(3) appropriate arrangements.)

The majority, Wasserman dissenting, refused to pass on the union's claim that the agency is obligated to bargain on these § 7106(b)(1) proposals because the expired agreement contained a provision requiring the agency to bargain on (b)(1) matters and the expired contract also had a provision stating that its terms remained in effect until the parties negotiated a new agreement.

The parties' disagreement over the effect of Article 4 presents the Authority with a contractual bargaining obligation dispute. However, § 2424.30 of the Authority's Regulations, which prescribes the conditions under which the Authority will resolve a bargaining obligation dispute in a negotiability case, applies only to statutory bargaining obligation disputes. . . . It is well established that a contract violation does not by itself constitute an unfair labor practice under the Statute.

In his dissent, Member Wasserman disagreed with this analysis and said that he "would hold that the facts of this case do establish that a statutory bargaining obligation dispute exists here, and that a bargaining order should issue." In reaching this conclusion, he said the following:

I do not attach the importance that the majority does to the fact that the [section] 7106(b)(1) election here is in the form of a negotiated agreement provision, which election itself is a permissive subject of bargaining. In my view, the form that the Agency chooses to make its election, which election is grounded in § 7106(b)(1) of the Statute and has no counterpart in the private sector, is irrelevant to whether a refusal to bargain on a specific § 7106(b)(1) matter can constitute a bargaining obligation dispute under the Statute and our regulations.

Proposal 8, which would preclude the agency from lowering an employee's performance rating based on that employee's decision not to use APPS in performing an audit, directly interferes with the right to direct employees and assign work. As the proposal did not also deal with methods and means, and the union didn't assert that it constituted a § 7106(b)(3) appropriate arrangement, the agency had no duty to bargain on the proposal.

Proposal 9, which would preclude the agency from holding an auditor responsible for the inclusion of a Supervisory Auditor-reviewed file in the working papers package, also interferes with the rights to direct employees and assign work. (There was no union claim that the proposal dealt with a § 7106(b)(1) matter; and FLRA found that it wasn't a § 7106(b)(2) procedure.) Moreover, even assuming the proposal constitutes an arrangement within the meaning of 7106(b)(3), FLRA found that the proposal excessively interferes with the right to direct employees and assign work.

[A]lthough the proposal would benefit employees by preventing them from receiving lower appraisals for failure to maintain a complete working papers package, it completely precludes management from assigning that task to employees, thereby preventing it from assessing whether or not employees exercise initiative with their supervisors to preserve the integrity of their case files. We conclude that the burden placed by the proposal on the exercise of management's right to evaluate employee performance outweighs any benefit to employees of protection from lowered performance appraisals. Consequently the proposal excessively interferes with management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) and is not an appropriate arrangement within the meaning of § 7106(b)(3).