[ v17 p657 ]
17:0657(95)NG
The decision of the Authority follows:
17 FLRA No. 95
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, COUNCIL OF CONSOLIDATED
SSA LOCALS
Union
and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION
Agency
Case No. 0-NG-866
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 raises issues
concerning the negotiability of three Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
April 1, 1983, 9 policy changes and 90 clarifications were
issued on the issue of In-Kind Support and Maintenance in the SSI
Program. The Union proposes that a moratorium of 6 months
duration be granted beginning April 1, 1983. During this period,
errors will be noted and corrected. However, no claims
representative nor data review technician will be charged with
payment or documentation errors on issues relating to these 9
policy changes or 90 clarifications. If any are charged, they
will be removed.
According to the Union, the instant proposal was prompted by
substantial revisions to the Agency's Program Operations Manual System
which guides employees in the processing of claims and post entitlement
actions of claimants comprising the Agency's clientele. The Union
asserts that it has no intention, by means of this proposal, to
challenge management's right to determine the manner in which claims are
to be processed or to set standards for employee performance. Rather,
the Union describes the operation of the proposal as follows:
Under the terms of this proposal, . . . management would
monitor and review the work of employees, pointing out when errors
are made. The error would be corrected and the employee advised
why the action taken was in error and how such an error could be
avoided in the future. However, for purposes of the formal
evaluation of employees' performance(,) errors would not be
charged for that six-month period. Thus, the adverse effects of
management's introduction of this new material would be
alleviated. /1/
Based on the Union's explanation, which is adopted for purposes of this
decision, the Authority concludes that the proposal establishes what is
tantamount to a training period during which employees are to
familiarize themselves with substantial revisions to their published
guidance before they are charged with errors attributable to not
following the new procedures. In this respect, Union Proposal 1 is to
the same effect as the proposal before the Authority in American
Federation of State, County and Municipal Employees, Local 2910, AFL-CIO
and Library of Congress, 15 FLRA No. 112 (1984), which delayed the
application of performance requirements during the first three months an
employee is performing the duties of the new position. Noting that
"(t)he proposal only provides that employees will not be evaluated
during their training period, not that employees will not be expected to
perform the work assigned," the Authority determined that the proposal
did not interfere with management's right to assign work and, hence, was
within the duty to bargain. Therefore, based on Library of Congress,
and the reasons and cases cited therein, Union Proposal 1 is within the
Agency's duty to bargain. Consequently, in view of the substantial
revision of the Agency's operating procedures, Union Proposal 1, which
requires imposition of a reasonable "training period," is, based on
Library or Congress and the reasons and cases cited therein, within the
Agency's duty to bargain.
Union Proposal 2
We also propose the time limits for claims development be
adjusted to take into consideration the additional research and
development time needed in these areas (In-Kind Support) and
Maintenance).
The Authority has consistently held that proposals substantively
restricting management's authority to establish performance standards
are inconsistent with the rights to assign work and to direct employees
pursuant to section 7106(a)(2)(A) and (B) of the Statute. Here, the
Union seeks to have "adjusted" the time limits established by the Agency
for claims development. Such an objective is distinguishable from the
result sought by Union Proposal 3 in American Federation of Government
Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New
York Regional Office, 7 FLRA 571 (1982), which required that standards
of performance "make allowances" for factors beyond employees' control.
In that case, the Authority found the cited proposal constituted "a
general, nonquantitative requirement" by which the application of
performance standards established by management may subsequently be
evaluated in a grievance by an employee who believes that he has been
adversely affected by the application of such performance standards.
Here, however, the proposal directly addresses the content of
performance standards themselves by requiring that time limits "be
adjusted." Thus, Union Proposal 2, herein, is to the same effect as
Union Proposal 3 in American Federation of Government Employees, Local
32 and Office of Personnel Management, 16 FLRA No. 127 (1984) petition
for review filed sub nom. Local 32, American Federation of Government
Employees, AFL-CIO v. FLRA, No. 85-1038 (D.C. Cir. Jan. 1, 1985),
requiring that performance standards themselves be fair and equitable,
which the Authority held to be nonnegotiable. Consequently, based upon
Office of Personnel Management and the reasons and cases cited therein,
Union Proposal 2, herein, interferes with the rights to assign work and
to direct employees, reserved to management by section 7106(a)(2)(A) and
(B), and likewise is outside the Agency's duty to bargain.
Union Proposal 3
With regard to input on the SSA-450S and 1719B in the EN and UM
fields, the Union proposes that claims representatives and data
review technicians be given documentation errors rather than
payment errors when estimates for future income are made.
It appears from the record that the Union intends, by means of this
proposal, that mistakes in estimating claimants' future income be
changed from one category of error to another category carrying with it
a lesser degree of severity. Thus, the proposal attempts to prescribe
the degree of unacceptability assignable to a specific type of error.
In this respect, Union Proposal 2 is to the same effect as the union
proposals, grouped under the heading "Proposals concerning definitions
of errors" in American Federation of Government Employees, Local 1760,
AFL-CIO and Department of Health and Human Services, Social Security
Administration, 15 FLRA No. 172 (1984) petition for review filed sub
nom. Department of Health and Human Services, Social Security
Administration v. FLRA, No. 84-4155 (2d Cir. Oct. 25, 1984), which the
Authority found to be outside the bargaining obligation. In so finding,
the Authority noted that the proposals "prescribe what performance in
terms of accuracy is to be deemed unacceptable and the degree to which
it is unacceptable." Hence, based on Social Security Administration and
the reasons and cases cited therein, Union Proposal 3 is inconsistent
with management's rights to direct employees and to assign work,
pursuant to section 7106(a)(2)(A) and (B) of the Statute, and,
consequently, is outside the Agency's obligation to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal 1.
/2/ IT IS FURTHER ORDERED that the petition for review as it relates to
Union Proposals 2 and 3 be, and it hereby is, dismissed. Issued,
Washington, D.C., April 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Union Reply Brief at 2.
/2/ In finding Union Proposal 1 to be within the duty to bargain, the
Authority makes no judgment as to its merits.