45 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 4041

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

ALBUQUERQUE TELESERVICE CENTER

ALBUQUERQUE, NEW MEXICO

(Agency)

0-NG-2009

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 2, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of three provisions of a locally negotiated Memorandum of Understanding (MOU) that were disapproved by the Acting Director of Labor Relations, Social Security Administration under section 7114(c) of the Statute.1/

Provision 1 requires that the incumbent of a newly established Telephone Systems Analyst (TSA) position be trained on automatic call distribution and related equipment. We conclude that the provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Provision 2 provides that the Agency will avoid interrupting the TSA's training and will relieve the TSA of other duties while that individual attends training. We find that the second provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Provision 3 provides that the TSA will not assess the performance of other employees in the bargaining unit. We conclude that Provision 3 excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.

II. Preliminary Matters

A. The Agency Head's Disapproval Was Timely

The Union asserts that the MOU was executed on October 31, 1991, and that, although the Agency head served a copy of the disapproval on the Union by certified mail on November 29, 1991, the Union did not receive the disapproval until December 6, 1991. The Union contends that the Agency head's disapproval of the MOU is untimely because it "was not received by any [Union] official until after the statutory 30-day time period." Reply Brief at 4.

Section 7114(c) of the Statute provides that the head of an agency shall approve a collective bargaining agreement "within 30 days from the date the agreement is executed" if the agreement complies with applicable law and regulation. Any disapproval by an agency head must be served on the exclusive representative within the 30 days after the execution of the agreement in accordance with the Authority's Rules and Regulations. See American Federation of Government Employees, National Mint Council and U.S. Department of the Treasury, Bureau of the Mint, San Francisco, California, 41 FLRA 1004, 1008 (1991). "It is 'service' and not 'receipt' which is the significant event in measuring the timeliness of an agency's disapproval." American Federation of Government Employees, Local 2182, AFL-CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA 600, 601 (1987).

It is undisputed that the MOU was executed on October 31, 1991. It is also undisputed that a copy of the Agency head's disapproval was served on the Union by certified mail on November 29, 1991. Therefore, as the Agency head's disapproval was served on the Union within the statutory 30-day period after execution of the MOU, it is timely.

B. The Union's Petition Is Not Procedurally Defective

The Agency contends that the Union's petition is procedurally defective. The Agency asserts that an unsigned, undated "Letter of Intent" was attached to the Union's petition for review and "integrate[d] . . . into [the Union's] argument on negotiability." Statement of Position at 6. According to the Agency, the inclusion of the "Letter of Intent" in the petition for review "serves as a modification of the disputed provisions, perhaps changing their meaning." Id. (underscoring omitted). The Agency claims that because the Union has not requested an allegation of nonnegotiability concerning the disputed provisions as modified by the "Letter of Intent," the Union's petition should be dismissed.

We reject the Agency's claim that the Union's petition is procedurally defective. Nothing in the record indicates that the Union is seeking review of provisions substantively different from those originally alleged to be nonnegotiable by the Agency. Consequently, we find the Agency's reliance on National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263, 268 (1990) (amended version of proposal substantively different from the version of the proposal alleged to be nonnegotiable by the agency found to be not properly before the Authority) and American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130, 137 (1990) (version of proposal before the Authority substantively different proposal from the one the agency alleged to be nonnegotiable found to be not properly before the Authority) is misplaced and conclude that the Union's petition is properly before us.

III. Provision 1

Section D.2.

The Agency agrees to provide training in accordance with Article 16 of the National Agreement. The incumbent shall be provided training on the Automatic Call Distribution (ACD) equipment and all related equipment.

A. The incumbent may at any time request additional training that is felt necessary to perform; his/her duties in a proficient manner.

[Only the underscored sentence is in dispute.]

A. Position of the Parties

1. Agency

The Agency argues that by specifying the kind of training the TSA will be provided, the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. With respect to the Union's claim that the provision is an appropriate arrangement, the Agency contends that the provision "does not qualify as an 'arrangement' . . . because the Union failed to identify any adverse effect on the TSA." Statement of Position at 8. According to the Agency, the provision "simply enables the employee to learn the operation of the equipment[]" and is not "intended to mitigate against some adverse consequence resulting from a management action." Id. The Agency asserts further that, if the Authority determines that the provision is intended as an arrangement, the provision excessively interferes with management's right to assign work. According to the Agency, the provision "removes management's discretion to determine different training requirements[]" and "totally abrogat[es] management's right to decide the kind of training[.]" Id. at 9.

2. Union

The Union contends that the provision does not interfere with management's right to assign work because nothing in the provision "requires that the training be formal or informal; or sets forth the intervals or duration of the training." Reply Brief at 10. In addition, the Union notes that Provision 1 is intended to be implemented in accordance "'with Article 16 of the National Agreement'" which "preserves the [Agency's] 'responsibility' (and right) to determine training needs." Id. at 10-11. According to the Union, "[n]either Article 16 nor Provision []1, separately or jointly, 'precludes an agency from exercising' the right to determine its specific training needs, including: the individual employees who are to receive training; the type, duration, or formality of training; or the initial content, or a change in the content, of the training." Id. at 11.

The Union argues that, if Provision 1 is found to interfere with a management right, the provision is an appropriate arrangement "because it would mitigate the adverse effects of performing the work of . . . and being evaluated" in the new position. Id. at 12. In this respect, the Union contends that the new TSA position "is a higher-grade position that encompasses expanded performance responsibilities at the [Agency,]" and that "[e]mployees assigned to the TSA position perform duties that are significantly different than the duties of their prior position, yet they would be held accountable for the successful completion of [their] assignments." Id. According to the Union, adverse effects on employees would "extend not only to the performance of the new work, but to being subject to formal personnel actions such as suspension, downgrade, and removal if they fail to perform the requirements of the new position at a prescribed level." Id. The Union asserts that the benefits of Provision 1 would be "the equipping of incumbent TSAs to perform in the position successfully . . . ." Id. Finally, the Union notes that, as Provision 1 does not "prescribe that . . . training . . . be formal, of a particular duration, or static for a specified period[,]" the provision only has a "slight interference with a management right." Id. at 13.

B. Analysis and Conclusions

1. Direct Interference

Proposals requiring management to provide specific training to unit employees in order to increase their knowledge, skill, and qualifications in the performance of their official duties directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1053-57 (1990) (Picatinny Arsenal) (proposal requiring the agency to provide employees with specific training "to prepare them for their duties to represent the bargaining unit in safety and health-related matters" held to interfere with the right to assign work); American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1064-65 (1988) (Naval Weapons Station, Concord) (proposal requiring agency to provide employee with "cross training" in duties of different positions held to interfere with the right to assign work) rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989). Compare American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 561-67 (1991) (proposal requiring the agency to provide classes on matters related to drug testing found not to involve the agency's right to provide training because the classes did not encompass instruction of employees in any facet of their duties and responsibilities). It is undisputed that the training contemplated by the disputed sentence of Provision 1 is intended to provide TSAs with instruction on how to perform the various duties and responsibilities of the TSA position. Accordingly, that sentence directly interferes with the Agency's right to assign work.

2. Appropriate Arrangement

A proposal that directly interferes with management's rights under section 7106(a) of the Statute is negotiable if it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we determine whether the proposal is: (1) intended as 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 right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986).

We reject the Agency's claim that the provision "does not qualify as an 'arrangement'" because the provision "simply enables the employee to learn the operation of the equipment[]" and is not "intended to mitigate against some adverse consequence resulting from a management action." Statement of Position at 8. We note that the Union contends, without dispute, that the new TSA position "is a higher-grade position that encompasses expanded performance responsibilities" and that "[e]mployees assigned to the TSA position perform duties that are significantly different than the duties of their prior position[.]" Reply Brief at 12. In our view, it is reasonably foreseeable that the assignment of TSA duties without providing training could result in the TSA not performing the requirements of the new TSA position at the prescribed level. As noted by the Union, employees who do not satisfactorily perform the duties of their new position are "subject to formal personnel actions such as suspension, downgrade, and removal if they fail to perform the requirements of the new position at a prescribed level." Id. We find, in agreement with the Union, that Provision 1 is intended to "mitigate the adverse effects of performing the work of . . . and being evaluated" in the new TSA position by assuring that employees are properly trained to perform the duties of that position. Id. at 12. We conclude, therefore, that Provision 1 constitutes an arrangement.

By providing the incumbent of the new TSA position with such training as is necessary to perform the duties of the position, Provision 1 may reduce the possibility that the incumbent will be subject to adverse performance evaluations and adverse personnel actions for failure to perform the duties of the TSA position at the prescribed level. In our view, this benefit would be significant. On the other hand, we find that the burden placed by the provision on management is minimal. Although the provision obligates the Agency to provide certain training to the incumbent of the TSA position, the provision does not specify the time or manner in which training will be provided. In other words, management can determine whether to provide formal or informal training and when such training is to be provided. In addition, the provision does not dictate the training's duration or who will provide the training. Moreover, as nothing in the provision removes management's discretion to determine or change training requirements, the Agency's reliance on National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) is misplaced. In this regard, the record is clear that the provision merely requires the Agency to provide TSAs such training as is necessary to perform the duties of the TSA position. Finally, we note that nothing in the provision conditions the Agency's right to assign the duties of the TSA position or evaluate the employee's performance of those duties on the Agency's first having trained the employee.

On balance, we conclude that the significant benefit provided employees by the provision outweighs the minimal burden placed on management. Consequently, Provision 1 does not excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and is negotiable. See Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 837-38 (1991) (portion of proposal requiring adequate training for employees found to be a negotiable appropriate arrangement); American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868, 872-74 (1986) (proposal requiring adequate training where a reorganization required employees to be assigned new tasks found to be a negotiable appropriate arrangement).

IV. Provision 2

Section D.3.

The Agency will avoid interruptions and relieve [the] employee of other job demands while attending training.

A. Positions of the Parties

1. Agency

The Agency argues that Provision 2 directly interferes with management's right to direct employees under section 7106(a)(2)(A) of the Statute and directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that employees in the Agency's teleservice centers "deal directly with the public, handling thousands of telephone calls each day from individuals inquiring about benefits, pending claims, etc." Statement of Position at 10. According to the Agency, "[t]he incumbent of the TSA position must be available . . . to analyze use of the system, including traffic volume, traffic between groups of lines, . . . [and] make changes in assignment of lines to insure their optimum use." Id. The Agency asserts that to "absolutely prohibit the Agency from assigning any of these duties to the TSA while he/she is attending training directly . . . [and] excessively interferes with management's right to assign work." Id. at 10-11.

2. Union

The Union argues that Provision 2 does not interfere with management's section 7106(a) rights. In this respect, the Union asserts that Provision 2 "does not address whether an employee would be 'insulated from responsibility' for work that was not performed while an employee w[as] receiving . . . training . . . ." Reply Brief at 13. In addition, although the Union concedes that the training contemplated by the provision constitutes an assignment of work under section 7106(a)(2)(B) of the Statute, the Union argues that Provision 2 cannot be disapproved because it concerns a matter that may be bargained under section 7106(b)(1) of the Statute. In particular, the Union claims that Provision 2 "formalizes the parties' agreement on the permissive subject of the types of employees (TSAs) who are to be assigned to a work project (uninterrupted training)." Id. at 14.

The Union also argues that, if Provision 2 is found to interfere with a management right, the provision is an appropriate arrangement for employees adversely affected by the exercise of a management right. In this connection, the Union claims that Provision 2 would not preclude the Agency from exercising its management rights because Provision 2 "would be operative only upon condition that the employer chose to exercise its rights by establishing the TSA position and assigning incumbents to it to whom training was to be provided." Id.

Further, according to the Union, "the degree of interference with a management right . . . must be interpreted in light of the normal course of the [Agency's] business operations." Id. at 15. In this connection, the Union asserts that, although the provision does not specify what interruptions are to be avoided, the Agency would not be "in violation of the [p]rovision if training were interrupted by acts of nature, emergencies, or other factors that are beyond [the Agency's] control." Id. In addition, the Union notes that "employees who are uninterrupted and relieved of other work responsibilities while they receive training are able to absorb the content of the training most efficiently." Id. The Union asserts that "[i]nterruptions and the press of other work . . . would reduce the level of performance of some employees in regard to both the training work being performed and the other work" diverting attention from training. Id. at 16. According to the Union, Provision 2 "would interfere only minimally, if at all, with . . . management rights[]" because the provision would not interfere "with the [Agency's] scheduling of training; with the determination of the duration or content of training; with the assignment of other work for which the TSA trainees are responsible; or with the assessment of employee performance as TSA trainee or otherwise." Id.

B. Analysis and Conclusions

1. Direct Interference

A provision that precludes an agency from requiring employees to perform certain duties or restricts the ability of management to assign duties directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Service Employees International Union, Federal Employees Metal Trades Council of Charleston, Local 696 and U.S. Department of the Navy, Naval Station, Charleston, South Carolina, 38 FLRA 10, 14 (1990). Provision 2 requires the Agency to avoid interrupting the training provided under Provision 1 and to relieve TSAs of other job demands while they are attending that training. As plainly worded, Provision 2 substantively limits the Agency's right to assign work to TSAs while they are attending the training provided by Provision 1. Accordingly, Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Consequently, we reject the Union's claim that Provision 2 is negotiable under section 7106(b)(1) of the Statute because it concerns the types of employees who are to be assigned to a work project.

However, we reject the Agency's additional claim that the disputed sentence also directly interferes with the Agency's right to direct employees under section 7106(a)(2)(A) of the Statute. In this connection, the right to direct employees encompasses the right to "supervise and guide [employees] in the performance of their duties on the job." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). In this case, the Agency has not established that Provision 2 addresses the supervision or direction of employees in the performance of their duties on the job. Consequently, as nothing in Provision 2 addresses in any way the supervision and direction of employees, we conclude that Provision 2 does not directly interfere with the Agency's right to direct employees under section 7106(a)(2)(A) of the Statute.

2. Appropriate Arrangement

The Union contends, without dispute, that a failure to provide uninterrupted training adversely affects employees. In this connection, according to the Union, "[i]nterruptions and the press of other work, if allowed to intrude on the training, would reduce the level of performance of some employees in regard to both the training work being performed and the other work" diverting attention from training. Reply Brief at 16. In our view, it is reasonably foreseeable that the assignment of TSA duties during training could result in TSAs missing segments of training sessions in the requirements of the TSA position. Incomplete training could result in a TSA's failure to perform the requirements of his/her position at the prescribed level which, as noted previously, can result in formal personnel actions such as suspension, downgrade, or removal. Provision 2 would mitigate these potential adverse effects by requiring the Agency to provide uninterrupted training. Consequently, we conclude that Provision 2 is intended as an arrangement.

Moreover, we find that the benefit provided unit employees by Provision 2 is significant. By requiring uninterrupted training, Provision 2 increases the likelihood that TSAs may receive adequate training, which reduces the possibility that the TSA will be subject to adverse performance evaluations and adverse personnel actions for failure to perform the duties of the TSA position at the prescribed level. Moreover, Provision 2 also provides the Agency with significant benefits. Employees who are fully trained in the duties and responsibilities of their positions will need less supervision and will perform more efficiently thereby enhancing the Agency's ability to meet mission requirements with minimal resources. On the other hand, we find that the burden placed on management by Provision 2 is minimal. As indicated by the Union in its reply brief, Provision 2 permits the assignment of other duties to TSAs attending training provided under Provision 1 that are caused by, "acts of nature, emergencies, or other factors that are beyond [the Agency's] control." Reply Brief at 15. According to the Union, as Provision 2 is intended to be interpreted "with reason and equity[,]" it precludes only those interruptions that "are reasonably avoidable because they are within the control of the [Agency]." Id. In other words, although the Agency could not routinely assign duties to TSAs while they are attending the training provided under Provision 1, the Agency would be able to take into account work exigencies resulting from circumstances beyond its control. Compare Overseas Education Association and Department of Defense, Dependent Schools, 39 FLRA 153, 160 (1991) (proposal prohibiting the assignment of unit employees to cover for absent employees in circumstances where the agency elected not to hire substitutes found to excessively interfere with management's right to assign work because the proposal allowed no exception even where the agency had legitimate reasons for not hiring substitutes).

On balance, we conclude that the significant benefit to employees outweighs the minimal burden placed on management. Consequently, we find that Provision 2 does not excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

V. Provision 3

Section F.2.A

The Union will be provided with reports, studies, or other materials relating to this position as requested in accordance with 5 USC 7114(B)(4)(c).

A. It is understood that no data will be evaluated by the TSA on individual bargaining unit employees for assessing individual performance.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that by prohibiting a TSA from evaluating data on unit employees for appraisal purposes, Provision 3 directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Union

The Union argues that Provision 3 is consistent with local management's intent to not have TSAs evaluate the performance of other bargaining unit employees. The Union notes that, if the Agency intended TSAs to assess the performance of other unit employees, the Union would have proposed additional procedures and arrangements.

The Union also asserts that Provision 3 is an appropriate arrangement because "it would become operative only after the [Agency] established the TSA position and would not prevent the [Agency] from evaluating any employees[.]" Reply Brief at 18. According to the Union, Provision 3 "does not interfere with the other mechanisms that [the Agency] has in place for evaluating employees." Id. In this connection, the Union claims that "the TSA position is not a supervisory or management position, and there exist abundant such positions and other mechanisms from which information regarding the performance of individual employees can be and are obtained." Id. Thus, the Union concludes that Provision 3 "poses no significant interference with the manner by which the [Agency] . . . will continue to exercise its right to assign work, direct employees, and impose discipline." Id.

B. Analysis and Conclusions

1. Direct Interference

Proposals that preclude management from assigning particular functions to particular individuals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1179 (1991) (Defense Mapping Agency, Louisville), vacated and remanded as to other matter sub nom. United States Department of Defense, Defense Mapping Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir. order Feb. 28, 1992) (proposal requiring the agency to assign only supervisory personnel to evaluate the quality of map sheet prepared by other employees held to directly and excessively interfere with the right to assign work); Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1413 (1991) (provision precluding management from assigning the responsibility for supervising unit employees to persons other than individuals designated as supervisors held to directly interfere with the right to assign work). Provision 3 expressly precludes the Agency from assigning TSAs to evaluate data on unit employee performance. Consequently, Provision 3 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Appropriate Arrangement

The Union does not identify any adverse effects resulting either from TSAs being assigned to evaluate data on other unit employees' performance or from the exercise of any other management right. Similarly, the Union does not identify any benefits that Provision 3 is intended to provide unit employees, including TSAs. The parties bear the burden of creating a record on which we can base a negotiability determination. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA No. 116, slip op. at 19 (1992). However, even assuming that Provision 3 is intended as an arrangement to mitigate any adverse effects that might result from TSAs being assigned to evaluate data on other unit employees' performance, we conclude that the burden placed on management's right to assign work is excessive. Provision 3 would completely prevent management from assigning TSAs to evaluate data on unit employees' performance. In our view, the burden on management's right resulting from the complete prohibition on the assignment of work is disproportionate to the benefits that might result from the provision for unit employees. See Defense Mapping Agency, Louisville, 39 FLRA at 1181; Overseas Education Association and Department of Defense, Dependents Schools, 39 FLRA 153, 161 (1991). Accordingly, we conclude that Provision 3 excessively interferes with the Agency's right to assign work and is nonnegotiable.

VI. Order

The Agency must rescind its disapproval of Provisions 1 and 2.2/ The petition for review as to Provision 3 is dismissed.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)

1/ The Agency also disapproved a fourth provision, designated as the seventh paragraph. However, as the Union did not appeal the Agency's disapproval of this provision, it is not before us. Consequently, we will not consider arguments raised by the Agency in its statement of position or arguments raised by the Union in its reply brief concerning this provision.

2/ In finding Provisions 1 and 2 to be negotiable, we make no judgment as to their merits.

 

---