11:0608(01)NG DIGEST HEADINGS STATUTE SUBJECT MATTER INDEX ENTRIES DIGEST NOTES DECISION AND ORDER ON NEGOTIABILITY ISSUES -- 1983 FLRAdec NG
[ v11 p608 ]
The decision of the Authority follows:
11 FLRA NO. 103
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency Case No. 0-NG-522
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 the following two Union proposals:
Union Proposal 1
Volunteers from T2 should be requested before requiring all T2 CRs do the interviewing.
Union Proposal 2
They will not be appraised on the SSI work and the appraisals and desk audits will reflect the additional duties.
Question Before the Authority
The question is whether, as alleged by the Agency, the proposals are outside the duty to bargain under section 7106(a)(2)(A) and (B) of the Statute. [ v11 p 608 ]
Conclusion and Order: Union Proposals 1 and 2 are not inconsistent with management's rights under section 7106(a)(2)(A) or (B) of the Statute. Rather, each proposal establishes a procedural requirement and is within the duty to bargain under section 7106(b)(2) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on these proposals. 1
Reasons: As explained by the Union, 2 the T2 CRs mentioned in the first proposal are Title II claims representatives who specialize in retirement, survivors, and disability claims. Title XVI claims representatives, who specialize in Supplemental Security Income claims, constitute the other type of claims representatives working in Region IX of the Social Security Administration. According to the Union, the parties had reached an agreement to the effect "that claims representatives could be required to perform work in the other specialty, but that work would be limited to interviewing and initiation of claims development." The Union in essence contends that the first proposal is intended to establish a procedure by which the Agency would assign Title XVI claims representatives' work to Title II claims representatives. In this regard, the Union states: "The ... proposal would require the agency to request volunteers to perform the work before making a final selection. If the agency believed the volunteers to be unqualified or unfit for some other business reason, the agency would be free to choose from amongst the remaining Title II claims representatives." 3
The Agency alleges this proposal is nonnegotiable because it requires management to request volunteers to do interviewing, which it contends conflicts with management's rights to direct, assign employees and assign work under section 7106(a)(2) of the Statute. 4 However, [ v11 p 609 ] based on the record, the proposal only requires, once management decides that Title II claims representatives will be required to perform the interviewing Title XVI claims representatives usually perform, that the Agency request volunteers from the group of Title II claims representatives before assigning that work to specific employees. Further, according to the Union, under the proposal management would not be required to select a volunteer to perform the work assignment. 5 Thus, following compliance with this procedure, if no volunteer were chosen, management would be free to choose from amongst the remaining (non-volunteer) Title II claims representatives.
With respect to the Agency's specific contention, the right to assign employees which is reserved to management under section 7106(a)(2)(A) of the Statute encompasses management's discretion to establish the qualifications necessary to perform the duties generally assigned to the position and to determine whether an employee meets those qualifications. American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 603, 612-13 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, U.S., 102 S.Ct. 1443 (1982). Similarly, management's right to assign work pursuant to section 7106(a)(2)(B) encompasses discretion to establish the particular qualifications and skills needed to perform the work to be done, and to exercise judgment in determining whether a particular employee meets those qualifications. Where, however, in management's judgment, two or more employees are equally qualified and capable of performing the work, the selection of any one of those employees to perform the work would be consistent with management's exercise of its discretion. Under such circumstances, the procedure by which employees previously judged by management to be equally qualified will be [ v11 p 610 ] selected to perform the work is negotiable under section 7106(b)(2). 6 See Laborers International Union of North America, AFL - CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA No. 84 (1982). 7
Thus, contrary to the contention of the Agency, the first proposal, which requires that Title II claims representatives be allowed to volunteer to perform Title XVI claims representatives' work prior to any of them being required to do so and which does not require that any volunteer be selected, but permits management to select non-volunteers, does not interfere with management's right to assign work employees under section 7106(a)(2)(A) or with the right to assign work under section 7106(a)(2)(B). Further, since management retains the discretion to select which employee(s) will perform the work and otherwise supervise and guide employees in the performance of their work, this portion of the proposal is not inconsistent with management's right to direct employees under section 7106(a)(2)(A) of the Statute and is within the duty to bargain under section 7106(b)(2).
With respect to the second proposal, the Union claims it would require that Title II claims representatives only be evaluated for performance appraisal purposes on those duties within the employees' job descriptions. In this regard, the Union states: "If management desires to appraise employees on Title XVI work, the agency need only add it to the job description." 8 The Agency contends this proposal would prevent it from evaluating employees on the quantity and quality of the work performed and, thus, is outside the duty to bargain because the proposal would interfere with management's rights to direct employees and assign work under section 7106(A)(2)(A) and (B) of the Statute. The Agency's contention cannot be sustained. [ v11 p 611 ]
In American Federation of Government Employees, AFL - CIO, Local 2849 and Office of Personnel Management, New York Regional Office, 7 FLRA No. 88 (1982), the Authority considered a proposal which required performance standards and critical elements to be consistent with the duties and responsibilities contained in a properly classified position description. The Authority determined that the proposal, by requiring consistency between position descriptions on the one hand, and critical elements identified and performance standards established for a position on the other hand, would not limit the agency's choice of critical elements or performance standards since the agency could always achieve consistency as required by the proposal merely by amending the position description. Thus, under the proposal, the right of the agency to assign work and to direct employees through establishing such elements and standards remained unaffected, subject to the procedural requirement that the position description involved accurately reflected the work assigned. Therefore, the Authority concluded that the proposal was within the duty to bargain under section 7106(b)(2) of the Statute.
The proposal at issue herein is substantively identical to the proposal considered by the Authority in AFGE, Local 2849. Therefore, for the reasons set forth in that case, Union Proposal 2 would not interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and is within the duty to bargain under section 7106(b)(2) of the Statute.
Issued, Washington, D.C., March 17, 1983 Ronald W. Haughton, Chairman Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
Henry B. Frazier III, Member, concurring:
In rendering decisions in negotiability cases, the Authority has often found it necessary to resort to the case record to understand the [ v11 p 612 ] proposal and give it meaning. 9 Where the proposal at issue is ambiguous or contradictory on its face, we have considered the interpretation given it by the union proposing it (see, e.g., National Treasury Employees Union and Internal Service, 7 FLRA No. 42 (1981) (Union Proposal 4) at 7; American Federation of Government Employees, AFL - CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA No. 45 (1981) (Provision I, paragraph (1)). In such instances, if the literal language of the proposal is susceptible of the interpretation advanced, the Authority has adopted the interpretation for purposes of making a decision as to negotiability. 10
In the decision in the case at hand, we have again used this approach with respect to Union Proposal 2 and I concur with the Authority's decision. I would register my concern, however, that we have, in effect, been placed in the position of having to rewrite an ambiguous, contradictory proposal in circumstances where the party making the proposal is able to present an unambiguous, uncontradictory interpretation for the proposal which clarifies its meaning and which, as a result, brings it within the duty to bargain.
Thus, in this case, upon a literal reading, Union Proposal 2 is confusing at best. The first clause seems to provide that the T2 volunteers will not (at any time) be appraised on the SSI duties. However, the proposal's subsequent clause indicates that the appraisals (and desk audits) will reflect the additional duties. The meaning of "desk duties" is not clear in this context.
According to the Union, this proposal "has the effect of restricting the appraisal process to those duties within an employee's job description .... If management desires to appraise employees on (SSI) work, the agency need only add it to the job description." (Union Reply Brief at 11.) Based on these statements, the Authority engrafts the Union's interpretation on Proposal 2 so that the proposal in effect [ v11 p 613 ] "reads" as follows: "Management will appraise employees only on those duties contained within a properly classified position description." This reading renders the otherwise ambiguous, contradictory proposal negotiable under Authority case precedent.
I question why, if clarification/interpretation of an ambiguous or contradictory proposal can be readily presented to the Authority, the language of the proposal was not appropriately revised and presented to management for negotiation at the bargaining table. If the parties would say what they mean to each other in negotiations, rather than to the Authority in litigation, many negotiability cases would never arise, thus enabling the Authority to concentrate on other disputes and to handle those cases before it with greater dispatch.
Issued, Washington, D.C., March 17, 1983 Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY
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Footnote 1 In deciding the Union Proposals 1 and 2 are within the duty to bargain, the Authority makes no judgment as to their merits.
Footnote 2 Union Reply Brief at 2.
Footnote 3 Union Reply Brief at 3.
Footnote 4 Section 7106(a)(2) provides in relevant part: 7106: Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (2) in accordance with applicable laws-- (A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted(.)
Footnote 5 Union Reply Brief at 8.
Footnote 6 Section 7106(b)(2) of the Statute provides: 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (2) procedures which management officials of the agency will observe in exercising any authority under this section(.)
Footnote 7 See also American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 15 (1981).
Footnote 8 Union Reply Brief at 11.
Footnote 9 Section 2424.4(a)(2) of the Authority's Rules and Regulations provides that a petition for review of a negotiability issue must contain an explicit statement of the meaning attributed to the proposal by the exclusive representative.
Footnote 10 Where the literal language of the proposal is not susceptible of the interpretation advanced, the Authority has rejected the interpretation and decided the issue based upon the proposal's literal language (see, e.g., Association of