31:0651(39)CA - HHS, SSA, Baltimore, MD and AFGE -- 1988 FLRAdec CA



[ v31 p651 ]
31:0651(39)CA
The decision of the Authority follows:


31 FLRA No. 39
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND

                   Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

                   Charging Party

Case Nos. 8-CA-60434
          8-CA-60435

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent and cross-exceptions filed by the General Counsel to the attached Decision of the Administrative Law Judge. The General Counsel also filed an opposition to the Respondent's exceptions.

The consolidated complaint alleged that the Respondent, acting through its Mesa, Arizona District Office management, violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by: (1) instituting changes in the office space design of the Mesa District Office without first completing bargaining with the Union over the substantive matters related to the office space design changes and the impact and implementation of the changes; and (2) instituting changes in work procedures at the Mesa District Office without first completing bargaining with the Union concerning the impact and implementation of Front End Interviewing (FEI) work procedures.

The Judge concluded that the Respondent did not violate the Statute by unilaterally deciding to adopt FEI. However, he concluded that the Respondent violated the [PAGE] Statute by failing to bargain with the union regarding the impact and implementation of the decision to adopt FEI. The Judge found that the Respondent was obligated to bargain over office space design (floor plan) and certain proposals concerning the workflow procedures to be utilized.

We agree with the Judge that the Respondent did not violate the Statute by unilaterally deciding to adopt FEI. We also agree with the Judge that the Respondent violated the Statute by refusing to bargain with the Union on the FEI floor plan and on certain negotiable proposals concerning the workflow procedures, that is, Proposals 1 (second sentence), 4, and 7. However, contrary to the Judge, we conclude that Proposal 1 (first sentence) is outside the duty to bargain and that Proposals 2, 3, 5 and 6 concerning FEI workflow procedures are also within the duty to bargain.

II. Background

The Mesa District Office receives and processes applications for Social Security benefits and administers the benefits programs. The Office interviews applicants and decides the validity of Social Security claims.

Before the FEI program was implemented, a Service Representative interviewed the applicant at a counter, recorded the applicant's name and related information, and referred the applicant to a waiting area. Next, a Claims Representative interviewed the applicant at his or her desk to determine the nature and facts concerning the claim. The Claims Representative made necessary telephonic inquiries and adjudicated the claim while the applicant was present or did such work after the applicant left the office.

Under the FEI system, a Service Representative, who is located behind a plexiglass window, interviews the applicant and refers the applicant to the waiting area. A Claims Representative then takes the applicant to a room which is walled-off from the employees' work area and conducts the interview. Claims Representatives could spend entire days interviewing claimants. Necessary paperwork is performed at employees' desks on other days.

In June/July 1985, the Respondent decided to adopt the FEI work processing system for the Mesa District Office. In November 1985, the Mesa District Office submitted a proposed floor plan to their Regional Office for approval. The floor plan showed the changes which were necessary to institute FEI. In April 1986, the Regional Office approved: (1) the [ v31 p2 ] final floor plan, which was a modified version of the District's proposed floor plan; and (2) the use of the FEI work processing system for the Mesa District Office.

On May 2, 1986, the Union submitted proposals to the Assistant District Director concerning the final floor plan. On May 28, the Assistant District Manager refused to bargain over the final floor plan stating that that the floor plan changes only had a de minimis impact on the working conditions of unit employees.

In mid - May, management indicated that it was interested in having a committee address workflow issues involved in FEI. On May 27, 1986, the Union submitted proposals concerning establishing a Workflow Committee consisting of six employees. The Workflow Committee's proposed responsibilities included drafting new office workflows, identifying problems in workflows and operations, and providing management with suggested solutions. On May 28, management agreed to have the Workflow Committee and to have the six employees suggested by the Union serve on the committee.

On June 9, 1986, management presented to the Union the workflow procedures which would be used under the FEI system. On June 12, the Union submitted about 30 proposals concerning the FEI workflow. On June 23, the parties reached agreement on six of the proposals. On that same day, management declared that the remaining proposals infringed on their management rights under the Statute and would not bargain on them.

The Respondent completed the necessary construction on June 23, 1986, and implemented the FEI work processing system at the Mesa District Office shortly thereafter.

III. Administrative Law Judge's Decision

The Judge concluded that the Respondent was not required to bargain over its decision to adopt FEI. He found that the Respondent's decision constituted exercises of its right to determine its internal security practices within the meaning of section 7106(a)(1) and its right to determine the methods and means of performing agency work within the meaning of section 7106(b)(1).

The Judge also concluded that the nature and extent of the reasonably foreseeable effects from revising the floor plan and changing the workflow procedures had an impact on the employment conditions of unit employees which was more [ v31 p3 ] than de minimis. The Judge cited the Authority's decision in Department of Health and Health and Human Services. Social Security Administration, 24 FLRA 403, 405-08 (1986), in support of his conclusion.

The Judge found no merit in the Respondent's argument that it was not obligated to negotiate on the adopted workflow changes because they resulted from suggestions made by the Workflow Committee, which was proposed by the Union. He concluded that the Union did not clearly and unmistakably waive its right to negotiate on any changes resulting from adoption of the Workflow Committee's suggestions even though the Workflow Committee was proposed by the Union and its members were selected by the Union.

Finally, the Judge concluded that the Respondent violated section 7116(a) (1) and (5) by refusing to bargain with the Union, on or after May 12, 1986, regarding the impact and implementation of the decision to adopt FEI concerning the office space design (floor plan) and proposals involving the workflow procedures to be utilized. Of the seven proposals, he found that proposals 1, 4, and 7 were negotiable and that proposals 2, 3, 5, and 6 were nonnegotiable.

IV. Positions of the Parties

The Respondent contends that there was no obligation to negotiate over the impact and implementation of its decision to adopt FEI regarding the floor plan and workflow procedures. It argues that the changes in the floor plan had a "de minimis" effect on unit employees. The Respondent also argues that the changes in workflow procedures occurred as a result of: (1) recommendations from a Workflow Committee which was proposed by the Union who "named all six people," including a Union representative; and (2) a memorandum of agreement between the parties. The Respondent maintains that the changes in workflow procedures were generated by the Union. The Respondent also contends that Proposal 1 violates management's rights to assign work and to determine its internal security practices.

The General Counsel argues that the Respondent had a duty to bargain on the changes in office space design and office workflow procedures because the changes had more than a "de minimis" impact on unit employees. The General Counsel also argues that the Respondent was obligated to bargain over the changes in workflow procedures even though the Union initiated the Workflow Committee which developed the changes. Regarding Proposal 1, the General Counsel [ v31 p4 ] contends that there is no record evidence to support Respondent's claim that: (1) all Service Representatives are not qualified to conduct front end interviewing, and (2) daily rotation of the Service Representatives would prevent management from assigning work or affect the Respondent's mission. The General Counsel also contends that Proposals 2, 3, 5, and 6 are negotiable.

V. Analysis and Conclusion

We agree with the Judge that the Respondent: (1) did not violate the Statute by unilaterally deciding to adopt FEI, and (2) violated the Statute by refusing to bargain with the Union on the FEI floor plan and on Proposals 1 (second sentence), 4, and 7 concerning FEI workflow procedures. However, contrary to the Judge, we conclude that Proposal 1 (first sentence) is outside the duty to bargain and that Proposals 2, 3, 5 and 6 concerning FEI workflow procedures are within the duty to bargain.

A. Reasonably Foreseeable Effects Of Respondent's Decision To Adopt FEI

We agree with the Judge for the reasons stated in his Decision that the Respondent was obligated to negotiate with the Union concerning the impact and implementation of its decision to adopt FEI. The Respondent's obligation included bargaining concerning the floor plan and workflow procedures.

In reaching this conclusion, the Judge correctly applied the principle stated in Social Security Administration, 24 FLRA at 407-08, for determining whether a change in the conditions of employment of bargaining unit employees requires bargaining. The Judge found that while employees' overall duties remained substantially the same, the physical location where employees would perform those duties was split into two locations within the office. The change in physical layout gave rise to reasonably foreseeable effects on the conditions of employment of unit employees. Those effects, according to the Judge, involved changes in the physical surroundings, such as heating, lighting, and ventilation. Further, the changes in workflow procedures affected: (1) how interview assignments would be made, (2) the scheduling and duration of the assignments, and (3) the responsibility for supplying the necessary forms at desks used for interviewing. The record supports his findings, and we adopt them. [ v31 p5 ]

The Respondent's reliance on U.S. Army Reserve Components, Personnel and Administration Center, St. Louis, Missouri, 20 FLRA 117 (1985), in support of its argument that the changes in the floor plan had a de minimis effect on unit employees is misplaced. In that case, the Authority applied the factors existing at that time for determining whether a change in a condition of employment resulted in an obligation to bargain over the change. The Authority modified the standard relied on in that case. In Social Security Administration, 24 FLRA at 407-08, we set forth the standard to be applied in future cases. The Judge correctly applied the modified standard.

The Respondent also argues that management had no plan to change the office workflow prior to receiving the suggestions of the Workflow Committee, which was created in response to the Union's proposal and had members who were selected by the Union. The Judge found that these circumstances did not establish that the Union clearly and unmistakably waived its right to negotiate on any changes which resulted from the recommendations made by the Committee.

We agree with the Judge. The record does not show that the Union clearly and unmistakably waived its right to bargain on changes in the workflow. See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Accordingly, the Respondent was obligated to bargain over the Union's proposals concerning the changes unless those proposals were nonnegotiable.

B. The Negotiability of the Proposals

We turn now to the question of the negotiability of the Union's proposals. Although the Union had not waived its right to bargain over the changes resulting from adoption of the suggestions made by the Workflow Committee, the Respondent was obligated to bargain over negotiable proposals only. If all of the Union's proposals were nonnegotiable, the Respondent's implementation of the changes would not violate the Statute. Therefore, the Judge's rulings on the negotiability of the Union's proposals was a necessary step to concluding that the Respondent violated section 7116(a)(1) and (5) by rejecting the Union's request to bargain.

The Judge found that Proposals 1, 4, and 7 were negotiable, and that Proposals 2, 3, 5, and 6 were nonnegotiable. The Agency argues that Proposal 1 is nonnegotiable, and the General Counsel argues that Proposals [ v31 p6 ] 2, 3, 5, and 6 are negotiable. We agree with the Judge that Proposals 1 (second sentence), 4, and 7 are negotiable for the reasons he stated. Since exceptions were not filed concerning Proposals 4 and 7, we will not address Proposals 4 and 7 further in this decision. However, contrary to the Judge, we conclude that Proposal 1 (first sentence) is outside the duty to bargain and that Proposals 2, 3, 5 and 6 are within the duty to bargain.

1. Proposal 1

Rotation of positions in interviewing will be scheduled by the OS (Office Supervisor), 30 days in advance. Rotation shall occur daily and an equitable system shall be developed so that a different SR (Service Representative) shall be assigned (to the social security) account number window on Mondays on a rotational basis.

We conclude that the first sentence is outside the duty to bargain because it interferes with management's right to assign work, and that the second sentence is within the duty to bargain.

The first sentence of the proposal provides for a 30-day advance notice of the rotation schedule. The Judge found that requiring advance notice of changes in duty assignment would not prevent management from "acting at all, with regard to assigning work. The Respondent argues that the "effect would be to restrict management in taking into consideration other events that occur after the 30-day schedule is set that might require making new assignments, or in modifying, terminating or continuing existing ones." Respondent's exceptions at 8.

Management's right to assign work includes the right to assign specific duties to particular individuals, including management officials. See, for example, National Association of Government Employees, AFL - CIO, Local R14-87 and Department of the Army and the Air Force, Kansas Army National Guard, 19 FLRA 381 (1985). The second sentence of this proposal requires that rotation of positions in interviewing "will be scheduled by the OS (Office Supervisor)." Since this proposal requires a supervisor to perform certain functions, it interferes with the right to assign what work will be performed and by whom. American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army [ v31 p7 ] Information Systems Command - Redstone Arsenal Commissary, 27 FLRA 69, 80-82 (1987) (Provision 6), petition for review filed sub nom. U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group The U.S. Army Information Systems Command - Redstone Arsenal Commissary v. FLRA, No. 87-7445 (llth Cir. July 17, 1987). We note that this proposal's defect is similar to the one in U.S. Army Missile Command and could be cured by removing the language concerning the Office Supervisor's scheduling duty.

The second sentence of the proposal provides that rotation of the Service Representatives at the account number window will occur daily and in an equitable manner. The Judge concluded that it did not prevent management from assigning service Representatives to interviewing windows. He found that there was no record evidence that all Service Representatives were not qualified to conduct interviews or that interviewing at the account number window required a particular skill. The Respondent argues that the proposal prevents management from assuring continuity in handling work and using employees' special skills, such as bilingual capabilities.

We agree with the Judge's conclusion that the second sentence of the proposal does not interfere with management's right to assign work. In so finding, we note that management's obligation to bargain over the rotation of employees to perform certain tasks is limited to those employees determined by management to possess the skills necessary to get the job done. We note further that this proposal would not interfere with management's ability to assign employees to particular tours of duty where specialized skills which they possess are needed. See Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA 212, 227 (1987) (Proposal 5-Section 4), petition for review filed sub nom. Veterans Administration Medical Center Hines Illinois v. FLRA, No. 87-1514 (D.C. Cir. Sept. 23, 1987).

In finding that the second sentence of the proposal does not interfere with management's right to assign work, we have not considered the Respondent's argument concerning the effect of the proposal on its right to determine its internal security practices. The Respondent argues that using scheduled rotation for account number work raises internal security concerns about controlling social security cards. This argument was raised for the first time in the Respondent's exceptions. In accordance with section 2429.5 of the Authority's Rules and Regulations, &the Authority will not consider evidence by a party, or any issue, which [ v31 p8 ] was not presented in the proceeding before the . . . Administrative Law Judge.' See Veterans Administration, Washington, D.C. , 24 FLRA 9, 11 (1986).

2. Proposal 2

DCs (Desk Clerks) shall be assigned to this desk on a rotational basis. This desk shall be fully equipped (i.e. typewriter, forms etc.) so that the DC can do their job while answering the phone.

The first sentence of the proposal provides that all Desk Clerks would sit at a designated desk and answer the Service Representatives' incoming phone calls on a rotational basis. The Judge found that it "prescribes the occupational type of employees required to perform the task and accordingly is outside the Respondent's duty to bargain." ALJ Decision at 16. The General Counsel contends that assigning the task to all Desk Clerks on a rotational basis is a negotiable procedure and is "materially identical to proposal 1 found negotiable by the Administrative Law Judge." General Counsel Exceptions at 2. It argues that there is no record evidence or contention by the Respondent that Janet Hubbs--the clerical employee designated by management to perform the work--is the only clerical who is qualified to answer the Service Representatives' phones.

We find that the disputed first sentence does not interfere with management's right to assign work. It constitutes a negotiable procedure using rotation for selecting employees from among those employees that management has determined to be qualified to perform the work of answering the Service Representatives' phones. See American Federation of State, County and Municipal Employees, Local 2027 and Action, 23 FLRA 56, 57-58 (1986).

The second sentence provides for equipping the desk used by the clerical employees when answering the service Representatives' phones with materials and equipment which they have at their regular desk's. The Judge found that this sentence involves the technology of performing work (technical method) within the meaning of section 7106(b)(1) and is negotiable only at the election of the Agency. The General Counsel argues that this part does not require the Respondent to alter its technical methodology used to perform the Agency's work as the clerks previously had access to the same equipment and forms. It also argues that it is an appropriate arrangement. [ v31 p9 ]

We find, contrary to the Judge's conclusion, that this part does not interfere with management's right to determine the technology used in performing its work. To sustain a claim that a proposal concerning conditions of employment is negotiable only at the election of mangement because it directly interferes with management's right to determine the technology used in performing its work, the agency must establish: (1) the technological relationship of the proposal to accomplishing or furthering the performance of the Agency's work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. In the absence of such showings, the Authority considers the proposal incidental to the performance of the agency's work. American Federation of Government Employees, AFL - CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842, 846-47 (1986).

The record does not establish the technological relationship of the proposal to accomplishing or furthering the performance of the Agency's work. Accordingly, we find this part of the proposal is incidental to the performance of the Agency's work.

3. Proposal 3

Emergency phone calls shall be immediately referred to the interviewer.

The proposal would allow employees to receive personal emergency phone calls directly without them first being screened by a supervisor. The Judge concluded that the proposal interferes with management's right to assign work. He found that the right to assign work includes the discretion to designate a supervisor to ascertain whether an employee should receive an emergency phone call. The General Counsel argues that the proposal does not involve a mangement right as the right to assign work does not include the right to screen phone calls. It merely suggests a common sense approach to an emergency situation.

We conclude, contrary to the Judge's conclusion, that the proposal is within the duty to bargain. The record in this case has not established how Proposal 3 interferes with the right to assign work. In American Federation of Government Employees, AFL - CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 99-100 (1983), the Authority found that Proposal 60 was within the duty to bargain. It permitted engineering personnel to use the telephone for personal emergency calls, [ v31 p10 ] rather than solely the graphic control operator. The Authority stated that "the Agency has not demonstrated and it does not otherwise appear that the Proposal is in any manner barred from negotiation." Id. at 100.

In our view, Proposal 3 is similar to the proposal in VA Hospital, San Antonio and likewise is not barred from negotiations. Proposal 3 would allow employees to directly receive emergency phone calls whereas the proposal in VA Hospital, San Antonio allowed employees to make and receive personal emergency calls themselves rather than have such calls handled by someone else.

4. Proposals 5 and 6

Proposal 5

The desk in the private inteviewing room shall be stocked with forms for all positions.

Proposal 6

The photocopy machine shall be easily accessible to both interviewing and non-interviewing personnel. Should the office receive a second photocopier, it shall be accessible to all personnel, with both machines being located and accessible to all personnel.

Proposal 5 concerns access to materials used by employees to perform their work. Proposal 6 provides that employees should have access to photocopy machines. The Judge found that the two proposals raise issues essentially similar to the second part of Proposal 2. He concluded that they were both nonnegotiable as they involve the technology of performing work within the meaning of section 7106(b)(1). The General Counsel agrees that the proposals raise the same issues as the second part of Proposal 2 and references its position on that proposal. The General Counsel emphasizes that the Union is merely attempting to maintain the level of facilities which existed before the change in workflow procedures.

We conclude that Proposals 5 and 6 are within the duty to bargain. We find that the proposals do not interfere with management's right to determine the technology used in performing its work. The record concerning these proposals does not establish the technological relationship of the proposal to accomplishing or furthering the performance of the Agency's work. See Section V.B.2., (part two of [ v31 p11 ] Proposal 2) and American Federation of Government Employees. AFL - CIO, National Council of Social Security Field Office Locals and Department of Health and Human services, Social Security Administration, 24 FLRA 842, 846-47 (1986). Accordingly, we find that Proposals 5 and 6 are negotiable.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Department of Health and Human services, Social Security Administration, Baltimore, Maryland, shall:

1. Cease and desist from:

(a) Failing or refusing to negotiate with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, on the procedures to be observed in implementing its decision to adopt Front End Interviewing at the Mesa, Arizona District Office and the impact of such decision on unit employees' conditions of employment, including matters concerning office space design and workflow procedures to be utilized.

(b) Unilaterally implementing its decision to adopt Front End Interviewing at the Mesa, Arizona District Office without first completing bargaining with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, on the procedures to be observed in adopting Front End Interviewing and the impact of such decision on unit employees' conditions of employment.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to office space design to accommodate Front End Interviewing at the mesa, Arizona District Office.

(b) Upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to the workflow proposals submitted by the Union on June 23, 1986, found herein to be within the duty to bargain. [ v31 p12 ]

(c) Post at its Mesa, Arizona District Office copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. upon receipt of such forms, they shall be signed by the Director of the Mesa District Office and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C., February 23, 1988

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 p13 ]

                  NOTICE TO ALL EMPLOYEES
    AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
           AND TO EFFECTUATE THE POLICIES OF THE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
               WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to negotiate with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, on the procedures to be observed in implementing our decision to adopt Front End Interviewing at the Mesa, Arizona District Office and the impact of such decision on unit employees' conditions of employment, including matters concerning office space design and workflow procedures to be utilized.

WE WILL NOT unilaterally implement our decision to adopt Front End Interviewing at the Mesa, Arizona District Office without first completing bargaining with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, on the procedures to be observed in adopting Front End Interviewing and the impact of such decision on unit employees' conditions of employment.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to office space design to accommodate Front End Interviewing at the Mesa, Arizona District Office. [ v31 p14 ]

WE WILL, upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to the workflow proposals submitted by the Union on June 23, 1986, found to be within the duty to bargain.

                             _______________________________
                                       (Activity)

Dated:__________________  By:_______________________________
                               (Signature)         (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VIII, Federal Labor Relations Authority, whose address is: 350 South Figueroa Street, Room 370, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805. [ v31 p15 ]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION,
BALTIMORE MARYLAND

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO

              Charging Party

Case Nos. 8-CA-60434
          8-CA-60435

Wilson G. Schuerholz
         For the Respondent

Craig Campbell
         For the Charging Party

Jonathan S. Levine, Esq.
         For the General Counsel

Before:  SALVATORE J. ARRIGO
         Administrative Law Judge

DECISION

Statement of the Case

This matter arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. (herein the Statute).

Upon unfair labor practice charges having been filed by the captioned Charging Party (herein the Union) on July 2, 1986 against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for Region VIII, issued [PAGE] a Consolidated Complaint and Notice of Hearing alleging Respondent violated the Statue by: (1) instituting changes in office space design without first completing bargaining over substantive matters related thereto and the impact and implementation of the change and; (2) instituting changes in work procedures without first completing bargaining concerning the impact and implementation of the changes.

A hearing on the Consolidated Complaint was held in Phoenix, Arizona at which all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by the Respondent and the General Counsel and have been carefully considered.

Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:

Findings of Fact

At all times material the Union has been the exclusive collective bargaining representative for a nationwide unit of Respondent's employees including various employees located at Respondent's Mesa, Arizona District Office. The Union's Regional Council 147 represents Respondent's employees in various locations including Mesa, Arizona. The entire collective bargaining unit consists of between 60,000 and 70,000 employees. Approximately 36 bargaining unit employees are employed at the Mesa Office. The Mesa unit is comprised of approximately 15 Claims Representatives, 5 Service Representatives, 5 Data Review Technicians, and various clerical employees. In addition, at the Mesa office there are 3 supervisors, an Assistant District Manager and a Manager.

The Mesa District Office receives and processes applications for Social Security benefits and administers the benefits programs. The office basically interviews applicants and adjudicates or decides the validity of Social Security claims. In June or July 1985 Respondent decided to adopt a Front End Interviewing (herein FEI) technique at the Mesa Office. At the time, an applicant came to the office, proceeded to a counter where a Service Representative would take the person's name and other information and refer the person to a waiting area. The individual would then, in turn, be called to a Claims Representative's desk in a general work area for an interview to ascertain the nature and facts concerning the claim. The Claims Representative [ v31 p2 ] might make telephonic inquiries into details involving the situation and adjudicate the claim while the claimant was present or would adjudicate the claim at a later time.

Under the FEI approach a separate physical area is established for interviewing claimants. A representative might spend an entire day in the FEI area interviewing various individuals and then spend other days back at a regularly assigned desk in the general work area performing adjudicative and other paper work. Respondent decided to adopt FEI to improve staff security, especially since employees were required to interview mentally disturbed disability claimants.

In late September 1985 Gabriel Jaramillo, Assistant District Manager at Respondent's Mesa District Office, met with Union representative Craig Campbell and advised him of Respondent's intention to adopt FEI at the Mesa office. Jaramillo presented a floor plan to Campbell which showed numerous revisions in the then current physical arrangement of the Mesa office to accommodate FEI, including the walling-in of a separate interviewing area. By letter dated October 1, Campbell indicated the Union was requesting formal bargaining on the impact of the proposed changes and asked Respondent to provide various information so the Union could properly prepare for bargaining over the proposed changes. Campbell sought thirteen items of data from Respondent including information concerning the present and future locations of fresh air vents; any plan to protect employees exposed to the construction; regional and central office guidelines on FEI; written proposals for FEI workflow; and a copy of the RWA (Reinbursable Work Authorization) for GSA (General Services Administration) to effectuate the plan. 1 Subsequently, Jaramillo and Campbell met and Jaramillo provided the Union the RWA and other information the Union requested to the extent such information existed. The parties discussed the proposed changes with Campbell asking a number of questions and raising various "concerns" the Union had about the modification. Campbell made suggestions to Jaramillo regarding the location of Service Representatives, security of employees, the visability of the FEI area from the General work area, the location of the guard and the number of telephones and desks that would be located in the FEI area. [ v31 p3 ]

In October 1985 Jaramillo presented Union representative Campbell with a revised floor plan. 2 This floor plan differed from the prior one essentially by relocating walls and increasing counter space in the reception area; changing the location of the private interview room; and adding plexiglas and window glass in the reception and interviewing areas to improve visability in those areas. The floor plan, including the location of employees and Campbell's suggestions, were discussed and Jaramillo informed Campbell he was going to submit the floor plan through channels and if Campbell had any concerns, he should notify him. 3 Campbell did not further communicate with Jaramillo and accordingly, in early November 1985, Jaramillo submitted the floor plan and the RWA to Regional management.

In late April 1986 Jaramillo was notified by Regional management that the FEI project had been approved. Jaramillo informed Campbell that he had received the final plan and provided him a copy of it. The new floor plan modified the plan Jaramillo submitted in October in that the new plan: (1) did not include plexiglas across the top of the counter which had been requested; (2) contained six interviewing windows where Service Representatives would be stationed rather than four as originally designated; (3) provided for three smaller windows rather than the large "storefront" windows on the wall separating the interviewing area from the general office area as requested by Jaramillo; and (4) decreased the size of the reception area and private interviewing area. Thus, previously Representatives performed their interviewing, adjudicatory duties and paper work at their individual desks in one large room. Now Service Representatives would interview at a reception counter and Claims Representatives interview at 9 desks in an enclosed interview area and a private interviewing room. Adjudicatory and other paper work is accomplished at Representatives' personal desks in the general work area which was substantially diminished in size due to relinquishing space necessary to accommodate the new interviewing areas. [ v31 p4 ]

On May 2, 1986 Campbell sent a memorandum to Jaramillo in which he acknowledged receipt of the floor plan and stated the Union was demanding to "bargain fully" concerning management's proposals. The memorandum, inter alia, designated Campbell and employee Scott Much as the Union's representatives and had attached to it proposed ground rules and 32 proposals identified as "some" of the Union's counterproposals. Campbell also requested permission to poll the employees regarding the change. By memorandum dated May 12 Respondent notified the Union, inter alia, that the changes proposed in the FEI floor plan represented no more than de minimis impact and, without commenting on any of the Union's proposals, refused to engage in bargaining on the matter although indicating it would "discuss" any further Union concerns on the subject. The Union's request to poll employees was rejected.

Campbell responded on May 14 claiming several of its counterproposals were substantive in nature whereby the de minimis test was inapplicable and otherwise challenging Respondent's conclusion of de minimis impact. Campbell, noting that construction was imminent, indicated bargaining should begin immediately.

Jaramillo called a meeting with Campbell on May 19, 1986, at which he informed Campbell that management had changed its mind about permitting the Union to poll employees on FEI. Jaramillo also indicated he was willing to bargain with the Union on the matter but wished to proceed on an informal basis. Jaramillo informed Campbell he did not want a complicated memorandum of understanding to result and if Campbell complicated the process, Jaramillo would declare the issue de minimis. At this time Campbell gave Jaramillo a memorandum which stated that management should not implement the proposed changes until the parties had bargained to agreement.

On May 27, 1986, the Union submitted additional bargaining proposals to Respondent. Some of the proposals dealt with establishing a workflow committee. 4 The proposals provided, inter alia, that a Workflow Committee would be established consisting of six employees appointed [ v31 p5 ] by the "steward." The committee's responsibilities with regard to FEI would include drafting new office workflows, identifying problems in workflows and operations, and providing management with suggested solutions.

Union representatives Campbell and Much met with management representatives Calderon and Jaramillo on May 28. 5 At the start of the meeting Jaramillo stated that the meeting was a "consultation" only and nothing would be put in writing. Campbell and Jaramillo engaged in a debate concerning whether the changes brought about by FEI were de minimis. Calderon and Much left and Jaramillo and Campbell continued the discussion. Both acknowledged that their positions were firm and they agreed to meet later that day for consultation and to exchange memos stating their final positions. Campbell indicated that the Union's consultation would be without prejudice to its right to negotiate.

Later that day Campbell and Much again met with Calderon and Jaramillo. The parties reviewed their respective positions and also discussed the Workflow Committee. Management agreed to have the committee and Campbell gave management a list of six employees, including Much, the Union wanted on the committee. Calderon discussed giving the committee some kind of direction first and while there was no immediate agreement to accept the Union's list of members, later that day the Union's suggested members to the committee were accepted by management.

On the following day the Workflow Committee, including Much, met with Calderon who gave some direction to the members and thereafter the committee met for two days to discuss the matter. The committee developed various suggestions concerning workflow under FEI and presented them to Calderon. Management accepted basically all the suggestions. According to Campbell's undisputed testimony, during this period he had discussions with Calderon on the matter and although Calderon was under the impression that the committee's and management's conclusions on workflow would be final, Campbell clearly notified Calderon that the Union had not waived any of its bargaining rights or by creating the committee and management still had the obligation to present any proposal on the subject to the Union for response. [ v31 p6 ]

On June 9, 1986 management presented the Union with over five pages of workflow procedures received from the Workflow Committee to accommodate the new FEI design. The procedures reflected numerous changes in the manner of assignment of personnel and the way in which work would be accomplished.

On June 12, 1986, Union representative Campbell sent Assistant District Manager Jaramillo a memorandum demanding to bargain on the substance and impact and implementation of "management's proposed FEI workflow." Campbell included "initial counterproposals" which included counterproposals to the workflow procedures which originated with the Workflow Committee and "additional counterproposals." Jaramillo initially refused to bargain on the matter informing the Union that it was the Union's workflow and questioning why management should have to bargain on something the Union created. However, on June 18 Jaramillo notified Campbell by memorandum that management would negotiate on a limited number of the workflow procedures and Union counterproposals contending the remainder of the matter infringed on management rights under section 7106 of the Statute. The memorandum also noted that FEI renovations would commence Friday evening June 20 and be completed for the most part by 8:00 a.m. June 23.

Jaramillo and Campbell subsequently negotiated and agreed on certain of the workflow items and signed a memorandum of understanding on June 23 regarding those matters. 6 Except for one item the memorandum of understanding was subsequently approved by Respondent's Division of Labor and Employee Relations. However, the Union continued to protest Respondent's refusal to bargain regarding its other counterproposals. On June 23 the Union also submitted a total of 15 proposals with comments in support of negotiability. On that same day Respondent notified the Union that it would not bargain on the proposals since it considered them to be "matters regarding a management right under Title 5 U.S.C. Chapter 7106."

The proposals at issue herein which General Counsel alleges to be negotiable are only a portion of the Union's June 23 workflow proposals and are set forth below with the Union's June 23 comments in support of negotiability. Also [ v31 p 7 ] included is Union representative Campbell's explanation given at the hearing in support of the negotiability of the proposals.

1. Respondent's proposed change. "Rotation of positions in interviewing will be scheduled by the OS."

Union proposal. "Rotation of positions in interviewing will be scheduled by the OS, 30 days in advance. Rotation shall occur daily and an equitable system shall be developed so that a different SR shall be assigned account number window on Mondays on a rotational basis."

Union comment. "This is negotiable as it involves procedure. I have not infringed on your right to assign the front desk to a SR. I am proposing a procedure by which employees previously judged by management to be equally qualified will be selected to perform the work."

Union explanation. Since the new service counter will have specialized service windows of varying workload requirements, an equitable rotation was necessary to ensure that, for example, a service Representative would not be required to work the "account number" window, a high volume task, on every Monday, Respondent's busiest day of the week.

2. Respondent's proposed change. "Janet Hubbs will be assigned to answer the SR phone when she is available. Calls will no longer be assigned to TSC."

Union proposal. "DCs shall be assigned to this desk on a rotational basis. This desk shall be fully equipped (i.e. typewriter, forms etc.) so that the DC can do their (sic) job while answering the phone."

Union comment. "This is negotiable. It involves procedure as well as furniture and facilities, both of which are negotiable. I accepted the fact that management assigned the task of answering the phone (assignment of work), my proposal involves the procedure used in assigning that work."

Union explanation. This proposal was to rotate this task among all clericals not merely one (Janet Hubbs) in an equitable manner and to also ensure that the DC (clerical) assigned to the desk was able to perform normal job duties while answering Service Representatives' phones.

3. Respondent's proposed change. "The OS will give only emergency personal calls to the FEI interviewer. All other calls will be handled by the unit DCs who will provide the [ v31 p8 ] requested information or refer the call to an available CR to handle. If there are no available CRs and the OS is also unavailable, the DC will take a message for a call back. The above call procedure will also apply to the adjudicating CR."

Union proposal. "Emergency phone calls shall be immediately referred to the interviewer."

Union comment. "This is clearly negotiable and involves common sense. There is no management right involved here. Management has no right to delay (by adding an unnecessary step to the process) emergency phone calls to the people they are intended for."

Union explanation. Under management's proposal all emergency phone calls would have to be referred to the supervisor. In the view of the Union there was no need to add this layer of bureaucracy. Rather, if, for example, a spouse has just gotten into an accident, whoever took the call would report this information directly to the affected employee.

4. Respondent's proposed change. "Lengthy determinations required by the CR, i.e. complex SGA determinations, QR situations, will be routed into the regular work flow and completed later by the interviewing CR."

Union proposal. "Add: Time lost because of these actions shall be treated in accordance with Art. 21 Sec. 3(e) ."

Union explanation. Article 21, Section 3(e) of the contract, "Performance Appraisal-Appraising Employees," requires Respondent when rating employees to take into account factors beyond the control of the employee. The Union explained this proposal was necessary as the new interviewing procedure meant employees would no longer be able to adjudicate while interviewing as previously required. Accordingly, the Union wanted some assurance that delaying a particular adjudication would not negatively impact on an employee's performance appraisal.

5. Respondent's proposed change. "There will be desks for five T 2 CRs; one SR; and three T16 CRs in the FEI room, etc."

Union proposal. "The desk in the private interviewing room shall be stocked with forms for all positions."

Union comment. "This is bargainable in substance as it involves furniture and facilities." [ v31 p9 ]

Union explanation. The desk in the new private interviewing room needed to be stocked with the requisite forms in case the room was needed to interview a claimant. This might arise if there was a particularly loud claimant or in the event there was an overflow from the FEI area.

Additional Union proposals.

6. "The photocopy machine shall be easily accessible to both interviewing and non-interviewing personnel. Should the office receive a second photocopier, it shall be accessible to all personnel, with both machines being located (so as to be) accessible to all personnel."

The Union claimed the proposal negotiable as it involves furniture and facilities.

7. "In computing individual employee processing time management shall consider FEI interviewing time in accordance with Article 21 Sec. 3(e)."

The Union contended the proposal is negotiable and infringes on no management right. The Union explained that under the new FEI procedure an interviewing assignment would be for an entire day. As a result, the Union wanted management in rating its employees to take into account the impact such interviewing had on the employee's ability to adjudicate.

Discussion and Conclusions

The General Counsel acknowledges that pursuant to its management rights Respondent was entitled to implement Front End Interviewing as a means of accomplishing its mission. However, the General Counsel contends that the particular office space design which would best effectuate this decision was subject to "substantive" negotiations with the Union and therefore Respondent violated the Statute when it refused to bargain regarding the FEI floorplan on May 12, 1986. The General Counsel argues that since "substantive" negotiations were required on office space design, it is immaterial whether the degree of impact flowing from the change of design was de minimis. The General Counsel also contends that Respondent further violated the Statute when it refused to bargain on the specific Union counterproposals regarding FEI work procedures set forth above which concerned the impact and implementation of FEI.

Respondent contends it was not obligated to bargain on the decision to implement FEI, arguing the matter concerned its internal security and under section 7106(a)(1) of the [ v31 p10 ] Statute management has sole authority to determine an agency's internal security practices. Respondent also contends that all other aspects concerning FEI were matters related to the impact and implementation of that decision and resulted in no more than de minimis impact on bargaining unit employees, thereby raising no obligation to bargain on Respondent's part. Respondent avers further: (1) the Union was given notice and an opportunity to negotiate in October 1985 on the FEI changes and accordingly unfair labor practice charges filed July 2, 1986 were untimely 7 ; (2) management in fact negotiated with the Union on the matter in October - November 1985; (3) the workflow changes the Union sought to negotiate on were put into effect at the suggestion of the Union and Respondent is not obligated to allow the Union to further negotiate on Union proposals adopted by Respondent; and (4) in any event, the Union's workflow proposals were nonnegotiable under the Statute.

I find and conclude that Respondent's decision to go to FEI and thereby alter its methods and means of performing work was occasioned by Respondent's concern over the security of its employees. Accordingly, the change concerned partly internal security practices and partly the methods or means of performing its work. Thus, Respondent was privileged to unilaterally decide to adopt FEI under section 7106(a)(1) and 7106(b)(1) of the Statute since both security methods and means of performing work were involved in the matter. 8 See United States Department of the Treasury, Internal Revenue Service, Dallas District, 19 FLRA 979 (1985) and American Federation of State, County and Municipal Employees, AFL - CIO, Local 2910 and Library of Congress, 19 FLRA 118 (1985). [ v31 p11 ]

The decision to adopt FEI and alter the office design was clearly a management right over which management was not required to negotiate with the Union. However, effectuating that decision by making specific changes in the physical floor plans, or office design, gave rise to a bargaining obligation as to the impact and implementation of that decision. The Authority has held that office space design proposals are negotiable unless an agency can show that the agency's particular office space design has a technological relationship to the accomplishment and furtherance of its work and the proposal would significantly interfere with that purpose. American Federation of Government Employees, Local 644, AFL - CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658 (1986) and Internal Revenue Service, Midwest Regional Office, Illinois, 16 FLRA 141 (1994). Therefore, although privileged to adopt FEI in the performance of its work and alter its office design, Respondent was nevertheless obligated to fully negotiate with the Union on the impact and implementation of the decision, i.e. the section 7106(b)(2) obligation to negotiate on the "(2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials." [ v31 p13 ]

However, management need not bargain with the Union if the impact of the change on unit employees is no more than de minimis. 9 Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986). In my view Respondent's revising the office floor plan or design to facilitate FEI and the changes in workflow which necessarily followed from the floor plan changes resulted in an impact on unit employees which was more than de minimis. While employees' overall duties remained substantially the same, the physical location of where those functions would be performed went from one assigned place to split locations. Thus, interviews under FEI occurred solely in the interviewing area where specific desks are not permanently assigned to employees and adjudication and other paper work was performed at the employees' regularly assigned desks which contained the necessary materials and supplies to accomplish these tasks including a telephone, claimant files and various forms. Previously, except for reception duties, virtually all duties were performed at the representative's assigned work-desk and the work-day was a mix of interviewing claimants, working on the adjudication of claims and other case processing work from this location. With the advent of FEI, employees could now expect to be assigned to an entire day of interviewing or an entire day of non-interviewing duties. Further, the change in physical layout naturally gave rise to other changes affecting unit employees such as matters concerning how interviewing assignments will be made to individual employees, the scheduling and duration of the assignments, reliefs, and responsibility for keeping interview desks fully equipped with forms. Indeed, the changes in the physical surroundings alone gave rise to numerous areas of foreseeable concern to the Union as the representative of unit employees such as matters involving heating, lighting, ventilation, safety, noise, security and work interruption and inconvenience during construction. Accordingly, based upon the nature and extent of the reasonably foreseeable affect of the change on employment conditions of unit employees, I conclude Respondent was obligated to negotiate with the Union regarding the impact and implementation of the decision to adopt FEI which included bargaining regarding the floor plan and workflow procedures. Department of Health and Human Services, supra. [ v31 p13 ]

By its conduct described herein Respondent failed and refused to bargain with the Union on how FEI would be implemented and the impact on unit employees. Respondent rejected the Union's demand to bargain and declined to consider the Union's bargaining proposals of May 2, 1986 by its memorandum of May 12, although Assistant District Manager Jaramillo expressed a willingness to "discuss" concerns the Union might have. The Union submitted additional bargaining proposals on May 27 and on May 28 the parties met for "consultation" only and an exchange of final positions. Subsequently management did accept the Union's proposal for a workflow committee, but the evidence does not disclose any bargaining or willingness on Respondent's part to bargain on any of the other Union proposals dealing with the change to FEI, even though the Union made repeated demands to bargain up to and including June 23 when the physical alterations apparently occurred. Indeed, Respondent repeatedly failed and refused to discuss these proposals since it deemed the change to be de minimis. Accordingly, I conclude Respondent's general conduct of refusing to bargain with the Union concerning the impact and implementation of its decision to effectuate FEI constituted a violation of section 7116(a)(1) and (5) of the Statute. 10

I reject Respondent's contention that the Union had an opportunity to negotiate on the FEI changes in October - November 1985 and since the unfair labor practice charges herein were filed more than six months later, the changes are untimely. Similarly, I reject Respondent's contention that its bargaining obligations on the floor plan were fulfilled by its negotiations with the Union in October - November 1985. The floor plans Respondent presented and the parties discussed in October - November 1985 were not the final plans. Rather, the plans reviewed by Union representative Campbell at that time were merely local management's intended submission to higher authority which made the final decision. True, some of the suggestions Campbell made regarding the floor plans were adopted by management. However, Respondent's representative Assistant District Representative Jaramillo acknowledged that during discussions he did not consider himself to be bargaining on [ v31 p14 ] the matter. More significantly, when the approved plans were returned to the activity from the Regional office in April 1986 they differed substantially from the plans submitted. In these circumstances I conclude that the parties' discussion in October - November 1985 did not extinguish Respondent's bargaining obligation on the floor plans. I further conclude Respondent was required to negotiate with the Union on demand in May 1986 regarding the revised floor plan and accordingly the unfair labor practice charges were not untimely filed.

I also find no merit in Respondent's argument that the workflow changes adopted were actually the Union's own proposals and Respondent therefore was not obligated to negotiate on them. It is true that Union representative Campbell proposed the formation of a Workflow Committee which would be composed of six employees appointed by the Union steward (apparently Campbell). Part of the proposal was that the Committee would provide management with "suggested" solutions to workflow problems. The proposal was accepted by Respondent and the employees whose names were submitted to management by Campbell were put on the Committee. Thereafter, management accepted the Committee's suggestions. However, throughout this period Campbell conveyed to management that the Union was not waiving any of its rights and the Union had the right to bargain on any proposals on the subject. In these circumstances, I conclude that although the Workflow Committee concept was the Union's proposal and the Committee was selected by the Union, the Union did not clearly and unmistakably waive its right to negotiate on any of the suggestions the Committee made or management adopted and indeed, the Union made it abundantly clear it was not waiving its right to bargain on any such workflow procedures management might ultimately adopt. See Internal Revenue Service, 16 FLRA 928 (1984) and Internal Revenue Service (District Region, National Office Units), 16 FLRA 904 (1984).

Turning now to the negotiability of the specific workflow proposals in dispute, I find and conclude as follows:

1. Union proposal.

"Rotation of positions in interviewing will be scheduled by the OS, 30 days in advance. Rotation shall occur daily and an equitable system shall be developed so that a different SR shall be assigned account number window on Mondays on a rotational basis." [ v31 p15 ]

Respondent's proposed change.

"Rotation of positions in interviewing will be scheduled by the OS (office supervisor?)."

With regard to requiring advanced notice of changes of duty assignment, such proposals have been declared negotiable by the Authority in that such advance notice does not prevent management from "acting at all" with regard to assigning work. See American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 5 FLRA 825 (1984) (proposal 2) an National Association of Government Employees and Department of the Interior, 14 FLRA 280 (1984). Further, the proposal merely requires that the procedure used in assigning Service Representatives to interview will be one of rotation. There is no contention nor record evidence that all representatives are not qualified for interviewing. Indeed, interviewing is the essential part of their job. In addition, there is no evidence that interviewing at "account number window" or any specific window requires any particular skill. Indeed the proposal is consistent with management's intent to rotate interviewing positions and does not prevent management from "acting at all" in assigning Service Representatives to interviewing windows. Accordingly, I conclude that Union's proposal is within Respondent's duty to bargain. See American Federation of State, County and Municipal Employees Local 2477 and Library of Congress, 14 FLRA 59 (1984); Associate of Civilian Technicians and State of Georgia National Guard, 27 FLRA 581 (1980) and American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 15 FLRA 545 (1984).

2. Union proposal.

"DCs (clerks) shall be assigned to this desk on a rotational basis. This desk shall be fully equipped (i.e. typewriter, forms etc.) so that the DC can do their (sic) job while answering the phone."

Respondent's proposed change.

"Janet Hubbs will be assigned to answer the SR phone when she is available. Calls will no longer be assigned to TSC." [ v31 p16 ]

The Union's proposal essentially mandated the assignment of all clerks to perform specific duties, i.e. answer Service Representatives' phones. Thus the proposal prescribes the occupational type of employees required to perform the task and accordingly is outside Respondent's duty to bargain under section 7106(a)(2)(A) of the Statute. Cf. American Federation of Government Employees, Council of Social Security District Office Locals, supra.

I further conclude that the second portion of the proposal dealing with the equipment required to be available at the desk concerns the technology of performing work (technical method) within the meaning of section 7106(b)(1) of the Statute and is negotiable only at the election of the Agency. See National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983) (proposal 1) and American Federation of Government Employees, Local 644 and U.S. Department of Labor, Mare Safety and Health Administration, 21 FLRA 1046 (1986) (proposal 1). See also American Federation of State, County and Municipal Employees, AFL - CIO, Local 2477 et al. and Library of Congress, Washington, D.C., 7 FLRA 578 (1982).

3. Union proposal.

"Emergency phone calls shall be immediately referred to the inter-viewer. "

Respondent's proposed change.

"The OS (supervisor) will give only emergency personal calls to the FEI interviewer. All other calls will be handled by the unit DCs who will provide the requested information or refer the call to an available CR to handle. If there are no available CRs and the OS is also unavailable, the DC will take a message for a call back. The above call procedure will also apply to the adjudicating CR."

Respondent contends that this proposal interfers with Respondent's right to assign work to employees and determine when that work will be performed. From Respondent's proposal the Union's explanation of its proposal, supra, it is apparent that Respondent has determined that emergency and [ v31 p17 ] telephone calls for employees will be channeled through a Supervisor. Accordingly, since under the Statute agency authority to assign work includes the discretion to designate the particular employee to whom the work will be assigned and Respondent has obviously decided it wishes to have a supervisor ascertain when an "emergency" call should be given to an interviewer, I conclude the Union's proposal is not within Respondent's obligation to bargain. See, National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (proposal II).

4. Union proposal.

"Time lost because of these actions (lengthy determinations, below) shall be treated in accordance with Article 21, Sec. 3(e) (of the collective bargaining agreement)." 11

Respondent's proposed change.

"Lengthy determinations required by the CR (i.e. complex SGA determinations, QR situations), will be routed into regular work flow and completed later by the interviewing CR."

The Union explained that prior to FEI, Claims Representatives working at their personal desks adjudicated while they were interviewing. Under FEI, Claims Representatives interview steadily in the FEI area for a period of time then return to their personal desks to adjudicate. By this proposal the Union wanted management's assurance that employees would not be "disadvantaged" on their appraisals if delays occurred in getting cases adjudicated.

Respondent contends the proposal would "restrict" a particular aspect of an employee's performance from consideration in the appraisal process and therefore is not negotiable citing Social Security Administration, Northeastern Program Service Center, 18 FLRA 437 (1985) and Department of the Treasury, Internal Revenue Service, Midwestern Regional Office, Chicago, Illinois, supra. [ v31 p18 ]

I find the Union proposal herein would not exclude from appraisals the element of timeliness in processing cases but would require the Agency to consider the new FEI procedure when appraising Claims Representatives in accordance with its contractual obligations and essentially make allowances for factors beyond the control of the employees. The proposal attempts to mitigate the effects of any rigid application of a timeliness requirement by requiring management to make allowances for conditions over which employees have no control. In these circumstances I conclude the proposal is within Respondent's duty to bargain. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (Section 4.G.); American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, 7 FLRA 217 (1981) (proposal 2) and American Federation of Government Employees, AFL - CIO, Local 2849 and office of Personnel Management, New York Regional Office, 7 FLRA 571 (1982) (proposal 3). But see Social Security Administration, Northeastern Program Service Center, supra, and Department of the Treasury, Internal Revenue Service, Midwest Regional Office, supra, (proposal that agency take account of limited access to conference rooms in evaluating unit employees' work performance).

5. Union proposal.

"The desk in the private interviewing room shall be stocked with forms for all positions."

Respondent's proposed change.

"There will be desks for five T2 CRs; one SR; and three T16 CRs in the FEI room, etc." [ v31 p19 ]

This proposal raises issues essentially the same as the second portion of union proposal 2., above, and I conclude it is negotiable only at the election of the Agency since it requires particular equipment be available at the desk used by employees to accomplish their duties and therefore concerns the technology of performing work. See National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals, supra and American Federation of Government Employees, Local 644, supra.

6. Union proposal.

"The photocopy machine shall be easily accessible to both interviewing and non-interviewing personnel. Should the office receive a second photo-copier, it shall be accessible to all personnel, with both machines being located and accessible to all personnel."

This proposal raises issues essentially the same as Union proposals 2. and 5., above, and I conclude it concerns the technology of performing work within the meaning of section 7106(b)(1) of the Statute and is negotiable only at the election of the Agency. See American Federation of Government Employees, Local 644, AFL - CIO and U.S. Department of Labor, Miami Health and Safety Administration, Morgantown, West Virginia, 15 FLRA 902 (1984) (proposal 3); National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals, supra; and American Federation of Government Employees, Local 644, 21 FLRA 1044 (1986) (proposal 1).

7. Union proposal.

"In computing individual employee processing time management shall consider FEI interviewing time in accordance with Article 21, Section 3(e)."

This proposal is essentially the same as Union proposal 4., above, and I conclude this proposal is negotiable for the reasons set forth above for Union proposal 4. See Patent Office Professional Association, supra; American Federation of Government Employees, AFL - CIO, Local 3804, supra; and American Federation of Government Employees, AFL - CIO, Local 2849, supra. But see Social Security Administration, Northeastern Program Service Center, supra and Internal Revenue Service, Midwest Regional Office, supra. [ v31 p20 ]

Accordingly, in view of the entire foregoing and the record as a whole I conclude Respondent violation section 7116(a)(1) and (5) of the Statute by its failure and refusal to bargain with the Union on and after May 12, 1986 with regard to the FEI floor plan and by its failure and refusal to bargain with the Union regarding Union proposals 1, 4, and 7, above and recommend the Authority issue the following: 12

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall:

1. Cease and desist from:

(a) Failing or refusing to negotiate with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, on the procedures to be observed in implementing its decision to adopt Front End Interviewing at the Mesa, Arizona District Office and the impact of such decision on unit employees' conditions of employment, including matters concerning office space design and workflow procedures to be utilized.

(b) Unilaterally implementing its decision to adopt Front End Interviewing at the Mesa, Arizona District Office without first completing bargaining with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, on the procedures to be observed in adopting Front End Interviewing and the impact of such decision on unit employees' conditions of employment.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise [ v31 p21 ] of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to office space design to accommodate Front End Interviewing at the Mesa, Arizona District Office.

(b) Upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to the workflow proposals submitted by the Union on June 23, 1986 found herein to be within the duty to bargain.

(c) Post at its Mesa, Arizona District Office copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by an appropriate official and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

SALVATORE J. ARRIGO
Administrative Law Judge

Dated: August 10, 1987
        Washington, D.C.

[ v31 p22 ]

                   NOTICE TO ALL EMPLOYEES
                         PURSUANT TO
                 A DECISION AND ORDER OF THE
              FEDERAL LABOR RELATIONS AUTHORITY
         AND IN ORDER TO EFFECTUATE THE POLICIES OF
                CHAPTER 71 OF TITLE 5 OF THE
                     UNITED STATES CODE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to negotiate with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, on the procedures to be observed in implementing our decision to adopt Front End Interviewing at the Mesa, Arizona District Office and the impact of such decision on unit employees' conditions of employment, including matters concerning office space design and work flow procedures to be utilized.

WE WILL NOT further unilaterally implement our decision to adopt Front End Interviewing at the Mesa, Arizona District Office without first completing bargaining with the American Federation of Government Employees, AFL - CIO, the employees' exclusive representatives, on the procedures to be observed in adopting Front End Interviewing and the impact of such decision on unit employees' conditions of employment,

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to office space design to accommodate Front End Interviewing at the Mesa, Arizona District Office. [PAGE]

WE WILL, upon request of the American Federation of Government Employees, AFL - CIO, meet and negotiate with respect to the workflow proposals submitted by the Union on June 23, 1986 found by the Authority to be within the duty to bargain.

                             _______________________________
                               (Agency or Activity)

Dated: _________________ BY: _______________________________
                                   (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced o