[ v58 p341 ]
58 FLRA No. 81
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Union)
and
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)
0-NG-2654
_____
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
January 31, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons which follow, we find that the proposal is within the duty to bargain.
II. Background and Proposal
The proposal concerns the Agency's implementation of CHIP, a computer program designed to assist its "800 number" agents in responding to inquiries regarding social security benefits. The proposal was one in a series of proposals offered by the Union during bargaining over the impact and implementation of the Agency's decision to make use of the CHIP program mandatory for all such agents. The parties entered into a memorandum of understanding (MOU) addressing certain aspects of implementation, but could not reach agreement on the Union's proposal to reopen the MOU for further bargaining on the CHIP program in the futur.
At the April 19, 2002, post-petition conference, the parties agreed to modify the proposal that was the subject of the petition for review. The proposal, as modified at the conference, is as follows:
Twelve months after the November 1, 2001 CHIP implementation date, the Parties will meet to reopen the agreement to review and identify concerns surrounding the Impact and Implementation of CHIP. The Parties will negotiate remedies and/or procedures for addressing these concerns and thereby enable all employees to successfully perform their job while providing world-class service to our customers.
Subsequently, in a submission to the Authority dated April 24, 2002, the Agency sought to modify the Union's proposal by deleting the words to "reopen the agreement" in the third line, so that the proposal would read as follows:
Twelve months after the November 1, 2001 CHIP implementation date, the Parties will meet to review and identify concerns surrounding the Impact and Implementation of CHIP. The Parties will negotiate remedies and/or procedures for addressing these concerns and thereby enable all employees to successfully perform their job while providing world-class service to our customers.
The Agency stated that it would find this language negotiable because "[t]his measure would limit the Parties['] further discussions on CHIP to unforeseen impact over the twelve-month period of the implementation of the mandatory use of CHIP and not open it up to impact matters that the Parties have already addressed" in their MOU. Agency's Supplemental Submission at 2.
On May 10, 2002, the Union stated that it had already modified the proposal twice and again during the post-petition conference to try and meet the Agency's concerns. According to the Union, the proposal does not require the Agency to negotiate over its decision to make the CHIP mandatory; rather, it "was meant to reopen the terms of the MOU and negotiate over the impact and implementation concerning the CHIP program that arose subsequent to its implementation." Union's Supplemental Submission at 1. The Union stated that it "must decline" the Agency's modified proposal and requested that "the Authority proceed with the Union's petition for review . . . ." Id.
On May 23, 2002, the Agency responded to the Union's May 10 letter. The Agency asserted that the Union's "conditions would reopen bargaining to all matters that the Parties have already negotiated and addressed in their" MOU. Agency's May 23 Letter at 2. The Agency requested the Authority to "craft a remedy [ v58 p342 ] along the lines of the language that the Agency previously offered" on April 24, 2002.
In sum, at this point the Union seeks a negotiability determination regarding the proposal as modified at the post-petition conference, and the Agency continues to assert that the proposal as modified at the post-petition conference is nonnegotiable. In these circumstances, we will resolve the negotiability of the proposal as modified at the post-petition conference.
III. Meaning of the Proposal
At the post-petition conference, the parties agreed that the proposal means that twelve months after the implementation of CHIP, the parties will reopen the terms of the MOU and negotiate over impact and implementation issues concerning the CHIP program that have developed subsequent to its implementation. The parties also agreed that the implementation of CHIP is mandatory and permanent and that the proposal does not require the Agency to negotiate over its decision to implement CHIP.
IV. Positions of the Parties
A. Agency
The Agency claims in its statement of position that the proposal is nonnegotiable because it directly interferes with management's rights under § 7106 of the Statute to determine its mission and to assign work and direct employees. [n2]
With regard to the right to determine its mission, the Agency maintains that the proposal imposes limitations on how and when management can implement a program intended to better serve the public by improving the payment and service accuracy of its 800 number agents. The Agency notes that in its petition for review, the Union states that the proposal is intended to "be a re-opener clause to allow the Union to address problems that may arise" in the first year that CHIP use is required. Statement of Position at 7. The Agency asserts that although the proposal is intended to address potential problems, the proposal would require the parties to return to the bargaining table to reopen the MOU, even if no problems occur. The Agency additionally asserts that it has already fulfilled its "bargaining obligation to give notice, bargain with and sign the CHIP MOU[.]" Id. at 5. In short, the Agency maintains that the proposal excessively interferes with its right to determine its mission.
The Agency additionally claims that the proposal directly interferes with its rights to assign work and direct employees because it concerns the substance, rather than the impact and implementation, of its decision to implement CHIP. According to the Agency, the proposal does not address any specific impact issues but "serves only to delimit [m]anagement's right to implement mandatory CHIP." Id. at 10. Consequently, the Agency contends that the proposal excessively interferes with its rights to assign work and direct employees.
B. Union
In its petition, the Union states that the proposal is meant to be a standard reopener clause to allow the Union to address problems that may arise in the first year of mandatory use of CHIP. In its supplemental submission regarding the proposal as revised at the post-petition conference, the Union reiterated that the proposal "was meant to reopen the terms of the MOU and negotiate over the impact and implementation concerning the CHIP program that arose subsequent to its implementation." Union's Supplemental Submission at 1.
V. Analysis and Conclusions
A. Agency's Right to Determine its Mission
The Authority addresses claims that proposals affect management's right to determine its mission on a case by case basis. For example, in AFGE, Local 3232, 22 FLRA 868, 869 (1986), the Authority concluded that a proposal establishing the office hours of certain agency district and branch offices was outside the duty to bargain because it conflicted with the agency's right to determine its mission. The Authority stated that "[s]ince a part of the mission of the [a]gency in this case is to provide services to the public, a decision regarding the particular hours when a Social Security field office is to be open to the public is mission-related." Id. See also United States Dep't of Defense, Fort Bragg Dependents Schools, Fort Bragg, N.C., 49 FLRA 333, 348-49 (1994) (Proposal 6).
In this case, the Agency asserts that the proposal imposes limitations on how and when it can implement a program intended to better serve the public. However, nothing in the proposal limits or conflicts with the Agency's decision to implement the CHIP program. Indeed, the proposal indicates that it is intended to permit a return to the bargaining table for the purpose of addressing problems that might arise in the first 12 months of its use, and the parties agreed at the post-petition conference that the proposal does not affect the Agency's determination to implement the CHIP program. Accordingly, we conclude that the Agency has [ v58 p343 ] failed to establish that the proposal affects its right to determine its mission under § 7106(a)(1).
B. Agency's Right to Direct Employees
"[T]he right to direct employees [within the meaning of section 7106(a)(2)(A) of the Statute] means to `supervise and guide [employees] in the performance of their duties on the job.'" Patent Office Prof. Ass'n, 41 FLRA 795, 834 (1991) (quoting NTEU, 3 FLRA 769, 775 (1980), aff'd 691 F.2d 553 (D.C. Cir. 1982)). This right is exercised through supervising employees and determining the quantity, quality, and timeliness of work productions and establishing priorities for its accomplishment. See NAGE Local R1-109, 53 FLRA 526, 534-35 (1997) (Proposal 4) and cases cited therein.
The Union's proposal does not prevent the Agency from supervising employees, determining the quantity, quality and timeliness of work production, or establishing priorities for the accomplishment of work. As such, we find that the proposal does not affect the direction of employees within the meaning of § 7106(a)(2)(A) of the Statute. See id.
C. Agency's Right to Assign Work
The right of an agency to assign work under § 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, the right to decide when work assignments will occur, and the right to decide to whom or what positions the duties will be assigned. AFGE, Local 3392, 52 FLRA 141, 143 (1996); AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1315 (1996).
In its Statement of Position, the Agency argues that the Union's proposal affects its right to assign work under § 7106(a)(2)(B), but none of its arguments pertain to the Union's proposal as modified at the post-petition conference. Accordingly, we conclude that the Agency has failed to establish how its right to assign work is affected by a proposal requiring the parties to reopen negotiations on the CHIP agreement.
We conclude that no basis is asserted for finding that the Union's proposal, as modified at the post-petition conference, is outside the duty to bargain. Accordingly, we find that the proposal is within the duty to bargain.
VI. Order
The Agency, shall, upon request, or as otherwise agreed to by the parties, bargain on the proposal. [n3]
Concurring Opinion of Member Carol Waller Pope,
I agree with my colleagues that the proposal is within the Agency's duty to bargain. I write separately because, in reaching this same conclusion, the majority refuses to acknowledge long-standing precedent that governs disposition of the petition. In so doing, the majority creates confusion as to whether it is abandoning that precedent.
As stated in the majority opinion, the Union maintains that the proposal is "a standard reopener clause." Petition for Review at 4. This meaning attributed to the proposal by the Union is the same meaning adopted by the majority. See Majority Opinion at 3. As such, the outcome of the petition is clear and is governed by long-standing precedent. In particular, the Authority has long and consistently held that reopener proposals are within the duty to bargain. See, e.g., POPA, 56 FLRA 69, 72-73 (2000); AFGE, Local 1995, 47 FLRA 470, 471-73 (1993); NAGE, SEIU, AFL-CIO, 24 FLRA 147, 148-49 (1986); AFGE, AFL-CIO, Local 3804, 21 FLRA 870, 889-91 (1986). The Agency does not acknowledge or dispute this precedent.
Rather than apply this clear precedent to conclude that the Union's proposal is within the Agency's duty to bargain, the majority applies an analysis that is seemingly blind to the fact that it is considering a reopener proposal. To make matters worse, the majority refuses to acknowledge, or state why it is not applying, this precedent. While this approach frees the majority from the obligation of disclosing (or perhaps even determining) its view of the precedent, it can only create confusion and, in turn, instability in the law.
Here, the disputed proposal requires only that the parties reopen their MOU to negotiate over the impact and implementation of issues arising during the 12 months following implementation of CHIP. The proposal does not require the Agency to bargain over, or agree to, any particular proposal offered during reopener negotiations. The proposal also does not affect the Agency's right to claim that any particular proposal offered during reopener negotiations is outside its duty to bargain. As such, the proposal does not (indeed could not) affect in any way the Agency's rights under § 7106 of the Statute. Accordingly, applying the foregoing precedent, the proposal is within the Agency's duty to bargain.
Footnote # 1 for 58 FLRA No. 81 - Authority's Decision
Member Pope's concurring opinion in this case is set forth at the end of this decision.
Footnote # 2 for 58 FLRA No. 81 - Authority's Decision
The Agency's Statement of Position was submitted prior to the post-petition conference, during which the parties agreed to modify the proposal.
Footnote # 3 for 58 FLRA No. 81 - Authority's Decision
In finding the proposal to be negotiable, we make no decision as to its merits.