15:0909(172)NG - AFGE Local 1760 and HHS, SSA -- 1984 FLRAdec NG



[ v15 p909 ]
15:0909(172)NG
The decision of the Authority follows:


 15 FLRA No. 172
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1760, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
                                            Case No. O-NG-720
 
                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 presents issues
 relating to the negotiability of 18 Union proposals grouped under three
 subject-matter headings.  Upon careful consideration of the entire
 record, including the parties' contentions, the Authority makes the
 following determinations.  /1/
 
                 Proposals Concerning Definition of Errors
 
          Errors are divided into five categories:
 
          1.  Payment Errors
 
          2.  Documentation Errors
 
          3.  Notice Errors
 
          4.  Exception Errors
 
          5.  Technical Inefficiencies
 
          These categories are defined as follows:
 
          (Proposal 1)
 
          1.  Payment Errors
 
          This category encompasses any error which results or would
       result in an incorrect payment either currently or in the future
       with an adverse effect on the beneficiary.  The following will be
       considered payment errors:
 
          a) An incorrect decision to pay or not to pay benefits where
       sufficient documentation to make the correct decision exists in
       the file.  (If unnecessary documentation is undertaken, classify
       as Technical Inefficiency.)
 
          b) Incorrect benefit amounts where the beneficiary is in
       indefinite suspense.
 
          c) Payment of benefits for the wrong month.
 
          d) Incorrect entitlement decisions concerning Health Insurance.
 
          (Proposal 2)
 
          2.  Documentation Errors
 
          This category encompasses errors involving a failure to
       undertake necessary development action and the failure to prepare
       a special determination when required.
 
          (Proposal 3)
 
          3.  Notice Errors
 
          This category encompasses errors involving the failure to send
       a required notice or the sending of a notice that contains
       incorrect information to beneficiaries and other government
       agencies.  The following will be considered notice errors:
 
          a) Designation of incorrect letter/paragraph fill-ins.
 
          b) Unresponsive replies to district office inquiries.
 
          c) Unresponsive dictated letters and paragraphs.
 
          (Proposal 4)
 
          4.  Exception Errors
 
          This category encompasses errors that would definitely cause
       exceptions in the payment processing programs such as CAPS,
       MADCAP, etc.
 
          (Proposal 5)
 
          5.  Technical Inefficiencies
 
          This category encompasses errors where the action was
       technically correct and the mistake would have minimal effect on
       the beneficiary and/or the Trust Fund now or in the future.  These
       errors are strictly informational and are recorded only for
       individual and/or group training purposes.  Examples include:
 
          a) Failure to provide letter/paragraph fill-ins.
 
          b) Unnecessary documentation.
 
          c) Failure to disposition a folder.
 
          d) Coding and/or remarks errors on the SSA-101 or SSA-2795 that
       have no effect on the case:  1. Omission of RID 5 remarks on the
       SSA-2795;  2. Omission of the asterisk adjacent to the benefit
       rate on item 6 of an SSA-101 in dual entitlement cases routed to a
       benefit authorizer, etc.
 
          e) Failure to use automated notices or paragraphs.
 
          f) Failure to use Word Processing notices and/or paragraphs.
 
          g) Misroutes to MADCAP instead of APO.
 
          h) Misroutes of forms or folders.
 
          i) The use of the SSA-2795 in lieu of other forms.
 
          NOTE:  Failure to prepare diaries will be classified under the
       appropriate category - i.e., Payment Error or Technical
       Inefficiency - depending on the effect of the action.  Failure to
       obtain an MBR or related folder when required should also be
       classified by the effect of the action.
 
          (Proposal 6)
 
          Only categories 1 through 4 will be considered in the
       computation of the accuracy percentage.  Errors will be weighted
       for their impact on the action taken as follows:
 
          a) A payment error will render a case 80 percent incorrect.
 
          b) A documentation error will render a case 70 percent
       incorrect.
 
          c) A notice error will render a case 20 percent incorrect.
 
          d) An exception error will render a case 10 percent incorrect.
 
    As to the first group of six proposals, under the heading "Definition
 of Errors," the Union states:
 
          Our proposal would not impose on management a particular
       decision on the content of a performance standard or impair
       management's authority to identify a critical element.  It would
       simply allow employees to know, with preciseness, when performance
       errors were made and which ones would have a negative impact on
       the total assessment of their performance.  /2/
 
    While the purported intent of this group of proposals is to inform
 employees of the nature and gravity of errors in the performance of
 their work, the proposals, nevertheless, define errors, prohibit
 management from considering certain mistakes in evaluating the accuracy
 of work, and assign varying degrees of importance to the enumerated
 categories of errors.  /3/
 
    In National Treasury Employees Union and Department of the Treasury,
 Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National
 Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d
 553 (D.C. Cir. 1982), the Authority noted that, pursuant to law and
 regulation governing the establishment of performance appraisal systems,
 a performance standard determines the level of work performance in terms
 of, among other factors, quality, quantity, or timeliness which is
 acceptable for certain purposes, such as job retention.  It was
 therefore concluded that a proposal which would have established a
 particular performance standard for job retention was inconsistent with
 management's rights, pursuant to section 7106(a)(2)(A) and (B) of the
 Statute, respectively to direct employees and to assign work.  Further,
 in National Treasury Employees Union and U.S. Nuclear Regulatory
 Commission, 13 FLRA No. 49 (1983), the Authority stated:
 
          Thus, the rights to assign work and direct employees extend to
       establishing job requirements, e.g., performance standards, for
       various levels of achievement, which management will use to
       encourage and reward successful performance as well as to
       discourage performance which is unacceptable.
 
    The first group of six proposals concerning definition of errors
 prescribe what performance in terms of accuracy is to be deemed
 unacceptable and the degree to which it is unacceptable.  Therefore,
 they are, for the reasons stated in Bureau of the Public Debt and
 Nuclear Regulatory Commission, inconsistent with management's rights to
 direct employees and assign work and outside the obligation to bargain.
 
                Proposals Concerning Random Sample of Cases
 
          1.  A random sample of an employee's work will be conducted
       during a continuous six-month period during each appraisal period.
 
          2.  No cases performed on overtime (including religious
       compensatory time) will be subject to the random sample.
 
          5.  The random sample will consist of 20 cases to be selected
       by the technical assistance from the employee's "out" tray.
 
          7.  The following categories of work (and the number for each)
       will be sampled:
 
          BENEFIT AUTHORIZER:  Awards (5);  AJS-3 (2);  Students (2);
       District Office Inquiries (4);  Exceptions (2);  AERO (2);
       Cyclical (3).
 
          CLAIMS AUTHORIZER:  Awards (10);  Earnings Discrepancy (5);
       Cyclical (5).
 
          8.  Errors will be weighted for their impact on the action
       taken (see "Definition of Errors").
 
          9.  For all cases that are defective, the technical assistant
       will note whether the defect is the result of an "oversight" or a
       genuine lack of understanding.
 
          (The numbering is that used by the parties.)
 
    As to the second group of six proposals, headed "Random Sample of
 Cases," the Union asserts that:
 
          The use of 100% review would not be affected by random
       sampling.  The timing, duration and extent of the sample would
       reside essentially within the agency purview.  /4/
 
    This explanation is not inconsistent with the language of the
 proposals themselves and is accordingly adopted for purposes of
 discussion.  Read in this light, proposals 1, 2, and 7 under the random
 sample heading merely prescribe the minimum procedures, i.e., a random
 sampling, that management will adopt in auditing employee performance,
 and delineate the manner of executing that procedure.  The prescribed
 procedure is not the sole one available to management and does not
 prohibit the Agency from scrutinizing more closely the work of employees
 identified as performing in a substandard manner.  Thus it is concluded
 that proposals 1, 2, and 7 constitute procedures, within the meaning of
 section 7106(b)(2) of the Statute, which management officials will
 observe in exercising their authority to evaluate the performance of
 employees.
 
    In agreement with the Agency, however, the Authority finds that
 proposals 5 and 9 under the heading "Random Sample of Cases" are outside
 the duty to bargain.  These two proposals would require the technical
 assistant, in proposal 5 to select a random sample of 20 cases from each
 employee's "out" tray and in proposal 9 to note the cause of the
 deficiencies in employees' work product.  In this regard, proposals 5
 and 9 are to the same effect as Union Proposal 4 in American Federation
 of State, County, and Municipal Employees, AFL-CIO, Local 2910 and
 Library of Congress, 11 FLRA No. 109 (1983) which the Authority found to
 be inconsistent with the management right, pursuant to section
 7106(a)(2)(B) of the Statute, "to assign work." In finding the proposal
 in the cited case to be nonnegotiable, the Authority noted that it would
 "obligate the Agency to continue assigning specified duties to named
 employees for the agreement's term." Thus, based on Library of Congress,
 and the reasons and case cited therein, proposals 5 and 9 under the
 heading "Random Sample of Cases" are inconsistent with the reserved
 management right "to assign work."
 
    As to the remaining proposal under the random sample heading, namely,
 proposal 8, the Authority finds this proposal to be outside the duty to
 bargain.  The net effect of this proposal is identical to those found to
 be nonnegotiable under the heading "Definition of Errors" in that it
 requires application of those standards of performance to the
 information gathered in the random sampling process.  Thus proposal 8
 like the proposals to which it refers, is inconsistent with management's
 rights, pursuant to section 7106(a)(2)(A) and (B) of the Statute,
 respectively to direct employees and to assign work.
 
                Proposals Concerning Measuring Productivity
 
          1.  A maximum of four case counts will be performed during a
       period when the random sample is not being performed.
 
          4.  The employee will work those cases on his/her desk and will
       work additional cases as needed (backlog, priorities, etc.).
       These cases will emanate solely from the employee's terminal digit
       area.
 
          5.  The employee will release his/her cases at the end of
       his/her workday to the technical assistant.
 
          6.  The technical assistant will count the cases and look them
       over to ensure that they are backlog and/or priority cases (i.e.,
       a "normal day's work").
 
          7.  The cases will then be subject to the normal quality checks
       that are normally utilized (e.g., consistency checks, QA audit,
       etc.).
 
          8.  The technical assistant will do the counting but no account
       numbers will be recorded.
 
          (The numbers are those assigned by the parties)
 
    Proposal 1 under the heading "Measuring Productivity," unlike the
 proposals grouped under "Random Sampling of Cases," does not establish a
 standard procedure, which may be varied as circumstances dictate, for
 the collection of performance evaluation data.  Rather, this proposal
 would impose a ceiling, i.e., a "maximum of four case counts" on the
 assessment of employee productivity.  Thus, the Agency would be
 precluded from conducting additional counts if considered necessary to
 acquire more accurate information on individuals or groups of employees.
 
    As previously noted, the identification of critical elements and the
 establishment of performance standards are ways in which management
 exercises its rights, pursuant to section 7106(a) of the Statute, to
 direct employees and assign work.  Obviously, however, the exercise of
 these rights comprehends the evaluating of employees against the
 standards established for each element.  In order to do so, management
 must obtain sufficient information upon which to base the evaluation.
 In this regard, the Agency points out:  "This proposal would prevent
 management from performing the number of case counts it deems necessary
 to ensure an adequate production level is maintained if management
 decides more than four case counts are necessary." /5/ Thus, by limiting
 management's ability to collect data for evaluating performance,
 proposal 1 under the heading "Measuring Productivity" directly
 interferes with the right to direct employees and assign work pursuant
 to section 7106(a)(2)(A) and (B) of the Statute and is outside the duty
 to bargain.
 
    The Union asserts that its proposal 4 under the "Measuring
 Productivity" heading "does not assign work, but reflects the fact that
 after work is assigned by the agency they (sic) will be acted upon in a
 particular order." /6/ The proposal, however, would effectively preclude
 management from revising previously made assignments to accommodate,
 e.g., emergencies or special priorities, and would limit work
 assignments to the employee's "terminal digit area." In this regard,
 proposal 4 is to the same effect as the portion of the proposal limiting
 the assignment of work during an emergency call back to those tasks
 directly related to the emergency, which the Authority found to be
 inconsistent with management's right "to assign work" in National
 Federation of Federal Employees, Local 1380 and Department of the Navy,
 Naval Coastal Systems Center, Panama City, Florida, 11 FLRA No. 33
 (1983).  Hence, based on Naval Coastal Systems Center, and the reasons
 and case cited therein, proposal 4 under the "Measuring Productivity"
 heading is inconsistent with the Agency's right, pursuant to section
 7106(a)(2)(B) of the Statute, to assign work.
 
    Proposals 5, 6 and 8 under the "Measuring Productivity" heading
 assign specific responsibilities to a named employee, the technical
 assistant.  Thus, these proposals are to the same effect as proposals 5
 and 9 under the heading "Random Sample of Cases" discussed above.
 Consequently, for the reasons stated earlier, proposals 5, 6 and 8 are
 also inconsistent with the management right, pursuant to section
 7106(a)(2)(B) of the Statute, "to assign work" and are outside the
 Agency's duty to bargain.
 
    The Agency contends, with regard to proposal 7 under the "Measuring
 Productivity" heading, that it would be inhibited in evaluating the
 performance of employees who require closer than "normal" scrutiny.  The
 Union states, with regard to this proposal, "Rather than limiting the
 agency's capacity to audit, the unambiguous language of the proposal
 refers to normal quality checks, normally utilized.  The intent of the
 proposal is illustrative rather than restrictive." /7/ For its part, the
 Agency tacitly admits that the proposal describes the quality checks it
 usually applies to employees' work when it asserts that under the
 proposal "management could not unilaterally determine that quality
 checks over and above what is normally utilized are necessary . . . . "
 /8/ Both the language of the proposal and the Union's further
 explanation indicate that no limitation on quality checks is intended.
 Thus, it is concluded that the proposal, contrary to the Agency's view,
 neither affects its right to direct employees and assign work nor limits
 its right to determine the methods and means of performing work.
 Therefore, proposal 7 under the heading "Measuring Productivity" is
 within 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 the following
 proposals:  proposals 1, 2, and 7 under the heading "Random Sample of
 Cases," and proposal 7 under the heading "Measuring Productivity." /9/
 IT IS FURTHER ORDERED that the Union's petition for review, as it
 relates to all six proposals under the heading "Definition of Errors,"
 proposals 5, 8 and 9 under the heading "Random Sample of Cases," and
 proposals 1, 4, 5, 6 and 8 under the heading "Measuring Productivity"
 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency's contention that the petition should be dismissed for
 lack of compliance with the requirement in section 2424.4(a)(2) of the
 Authority's Rules and Regulations that the Union furnish an explicit
 statement of the meaning of the proposals cannot be sustained, since
 such a statement was furnished.  The additional agency contention that
 the petition should be dismissed because the Union filed to serve a copy
 of its petition on the Agency head also cannot be sustained, since the
 Union corrected this oversight within time limits set by the Authority.
 Thus, the Agency's motions to dismiss the petition must be denied.
 
 
    /2/ Union Petition for Review at 1-2.
 
 
    /3/ With regard to the definition of errors, see, American Federation
 of Government Employees, Local 1822, AFL-CIO and Veterans Administration
 Medical