33:0454(61)CA - - HHS, SSA, Baltimore, MD and Mid-America Program Service Center, Kansas City, MO and AFGE - - 1988 FLRAdec CA - - v33 p454



[ v33 p454 ]
33:0454(61)CA
The decision of the Authority follows:


33 FLRA No. 61

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

and

MID-AMERICA PROGRAM SERVICE CENTER

KANSAS CITY, MISSOURI

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party)

7-CA-80082

DECISION

October 27, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The complaint alleges that the Social Security Administration and its Mid-America Program Service Center (the Respondents) violated section 7116(a)(1) and (5) of the Statute by implementing a change in the conditions of employment of bargaining unit employees prior to bargaining with the American Federation of Government Employees (AFGE or Union) over the impact and implementation of the change. Specifically, the complaint centers on a change in the procedures used by certain bargaining unit employees in the Mid-America Program Service Center (MAMPSC) to process correspondence for mailing.

For the reasons discussed below, we conclude that (1) all six proposals submitted by the Union are nonnegotiable, and (2) the Respondents' rejection of the proposals and implementation of the change did not violate the Statute.

II. Facts

AFGE is the exclusive representative of consolidated units of professional and non-professional employees including employees in the MAMPSC. At all times material to the dispute, a collective bargaining agreement existed between the Respondent Social Security Administration and AFGE which covered the employees in the consolidated units.

The MAMPSC is organized into six sections, each of which is comprised of six modules. Each module has approximately 40-50 unit employees. Each module is authorized five typists--two Notice Preparation Reviewers, two clerk-typists and one module secretary. There is also an Inquiry and Expediting (I&E) staff which has one clerk-typist. Prior to the change which is the subject of the complaint, typists in the modules and I&E staff were responsible for placing some types of letters and inserts into messenger envelopes and for folding and placing other types of letters and inserts into mailing envelopes.

By letter dated August 12, 1987, the Deputy Director of the MAMPSC notified AFGE that MAMPSC intended to change the procedures used for releasing mail from the modules and the I&E staff. The proposed change required that typists be responsible for folding and placing all letters into mailing envelopes after typing them. The new procedure was to be phased in beginning with two sections. The letter stated that implementation was tentatively scheduled for August 31, 1987, and requested that any proposals which the Union wished to make be submitted in writing by August 18, 1987.

By letter dated August 14, 1987, AFGE requested to bargain over the impact and implementation of the proposed change in mailing procedures. AFGE submitted six proposals and stated, "The above proposals are not all inclusive and are subject to change during the course of negotiations."

The parties never met concerning the proposals. By letter dated September 1, 1987, the Deputy Director of the MAMPSC informed AFGE that (1) the first five proposals were nonnegotiable; and (2) the sixth was negotiable only at the election of the agency and the Respondents elected not to negotiate over it. The letter closed by stating, "you have failed to submit substantive negotiable proposals and we will proceed with implementation as planned." There was no further verbal or written communication between the parties concerning the proposed change or the request to bargain.

On or about October 7, 1987, the Respondents issued a memorandum entitled "Directly Mailing Letters from Modules." The memorandum stated that in an effort to reduce manual handling of beneficiary letters, the typists in the modules and I&E would "stuff" and mail their own letters. The memorandum stated that, initially, only two sections would "stuff" and mail their own letters in order to allow the agency to study the process and determine any work flow changes that might be necessary. The memorandum stated that the new procedures would be implemented in those two sections on October 19, 1987. Implementation occurred on that date.

The parties stipulate that the change in the mailing procedures had more than a "de minimis" impact on affected unit employees. Stipulation at 8. Prior to the change, accomplishment of the tasks associated with sorting, folding and mailing material took typists 45-60 minutes per day, per module. Subsequent to the change those tasks took typists approximately 60-90 minutes per day, per module.

The performance standards of typists do not establish a case production goal equating to a level of performance. However, individual modules have informal case production expectations expressed as a range of production to determine the fully satisfactory level of performance for typists per module. The performance standards of Notice Preparation Reviewers require that their job tasks be performed in a timely manner.

III. Positions of the Parties (*)

A. The General Counsel

The General Counsel argues that the Respondents violated section 7116(a)(1) and (5) by implementing the new mailing procedures prior to bargaining with the Union over them. While conceding that, as written, two of the six proposals submitted by the Union are nonnegotiable, the General Counsel contends that the other four are negotiable and that the Respondents' refusal to bargain over those proposals, in the context of the implementation of a change in conditions of employment, constituted a violation of the Statute.

The General Counsel further argues that even assuming that the proposals submitted are nonnegotiable, the Respondents' actions violated the Statute. The General Counsel contends that the Respondents had an obligation, prior to implementing the changes, to meet with the Union, discuss the proposals, and afford the Union an opportunity to "cure" any defects in the proposals or to submit alternative proposals. The General Counsel contends that on September 1, 1987, the Respondents summarily rejected the Union's proposals as nonnegotiable and stated that implementation would occur as planned. The General Counsel argues that because the Respondents had previously indicated that implementation was to occur on August 31, the Union believed that further efforts on its part at negotiations prior to the change would be a futility. Therefore, the General Counsel contends that regardless of the negotiability of the Union's proposals, the absence of "any legitimate attempt at bargaining prior to implementation" constitutes a violation of the Statute. General Counsel's brief at 15.

As remedy, the General Counsel requests that a Cease and Desist Order be issued and that the Respondents be ordered to bargain with the Union over the impact and implementation of the new mailing procedures. Additionally, the General Counsel requests that the Respondents be required to post a Notice to Employees identifying the violations of the Statute and the remedial action to be taken.

B. The Respondents

The Respondents contend that they did not fail to bargain in good faith prior to implementing the change in conditions of employment. The Respondents maintain that the Union was afforded notice and an opportunity to bargain over the change in mailing procedures. Respondents' brief at 4-5.

The Respondents argue that none of the six proposals submitted by the Union is negotiable and that refusing to negotiate over those proposals did not constitute bad faith bargaining. Additionally, the Respondents argue that after declaring the Union's proposals to be nonnegotiable on September 1, 1987, the Respondents waited until October 7, 1987, before notifying supervisors that the change would be implemented effective October 19, 1987. The Respondents assert that within that time the Union did not modify its proposals, submit additional proposals, or file an unfair labor practice charge or negotiability appeal.

Based on these circumstances, the Respondents (1) deny that the change was implemented in a manner which precluded the Union from bargaining concerning the change prior to its implementation, and (2) argue that the complaint should be dismissed.

IV. Analysis and Conclusions

Generally, absent a clear and unmistakable waiver of bargaining rights, an agency must afford the exclusive representative of affected employees notice of proposed changes in conditions of employment in the bargaining unit and an opportunity to bargain over those aspects of the changes which are negotiable prior to implementing such changes. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). An exception applies in circumstances where the effects of the change are so insignificant that no obligation to bargain is created. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986), in which the Authority articulated the standard which it would apply in making determinations on whether a change created a bargaining obligation.

Where a bargaining obligation is created, an agency is required to bargain only over negotiable proposals presented to it by the union. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 656 (1988). Where a union submits bargaining proposals and an agency refuses to bargain over them based on the contention that they are nonnegotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. If any of the union's proposals are held to be negotiable, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute by implementing the change without bargaining over the negotiable proposals. See, for example, United States Department of the Treasury, Internal Revenue Service, Dallas District, 19 FLRA 979 (1985).

Here, the parties have stipulated that the effect of the change on conditions of employment of bargaining unit employees was significant and gave rise to an obligation to bargain. Stipulation at 8. Therefore, the issue is whether the Respondents met their obligation to afford the Union an opportunity to bargain prior to implementing the change in mailing procedures. The Respondents assert that their implementation of the change did not violate the Statute because the Union failed to submit any negotiable proposals.

For the reasons discussed below, we find that the proposals submitted by the Union are nonnegotiable. Further, we find that under the circumstances the Respondent's declaration of nonnegotiability was not a general refusal to bargain. Therefore, we will dismiss the complaint in its entirety.

A. The Union's Proposals

We now address the negotiability of the individual proposals submitted by the Union. Because the General Counsel states that Proposals 2 and 3, as written, are nonnegotiable, it is unnecessary for us to address those two proposals. We find that Proposals 1, 4, 5, and 6 are nonnegotiable.

1. Proposal 1

Production expectations for affected employees will be adjusted to allow for the time to perform extra duty.

The parties stipulate that the intent of this proposal is that the Respondents will lower production expectations for typists who perform the changed mailing procedures to compensate for the increase in work which the Union believes would result from the additional mailing duties.

a. Position of the General Counsel

The General Counsel contends that this proposal is negotiable. The General Counsel argues that because the new mailing procedures require additional time to perform, typists are unable to perform other job duties. The General Counsel contends that the informal "production expectations" established within each module do not reflect the addition of the new mailing duties and are, therefore, unrealistic.

The General Counsel maintains that while Proposal 1 anticipates that production expectations will be lowered, the proposal does not dictate a specific standard of production. Rather, the proposal leaves the establishment of specific production standards to the Respondents. The General Counsel argues that this proposal is similar to other proposals--which provided that an agency will make allowances for factors beyond an employee's control or that employees will not be disadvantaged or adversely affected by the performance of management assigned tasks--which the Authority has found to be negotiable. Among other cases, the General Counsel cites American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981); American Federation of Government Employees, AFL-CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA 329 (1986), petition for enforcement filed sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. Mar. 9, 1987); and Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Denver District, Denver, Colorado, 27 FLRA 664 (1987).

The General Counsel contends that Proposal 1 does not conflict with any management rights. The General Counsel maintains that the proposal only requires that management reevaluate production expectations and determine whether readjustment is necessary.

b. Position of the Respondents

The Respondents argue that Proposal 1 violates the rights to assign and direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) and does not constitute a procedure negotiable under section 7106(b)(2). The Respondents assert that this proposal is similar to proposals which the Authority has held to be nonnegotiable because they interfere with an agency's right to determine the content of performance standards. Among other cases, the Respondents cite National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657, 658-59 (1985), reversed as to other matters sub nom. Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986). The Respondents contend that Proposal 1, like those held nonnegotiable in the cited cases, substantively interferes with management's rights to direct employees and to assign work by requiring that additional time be permitted to perform work and that such time be included in performance expectations.

The Respondents further contend that the proposal is not negotiable under section 7106(b)(3) as an appropriate arrangement because it excessively interferes with management's rights to direct employees and assign work. In support of this contention, the Respondents assert that employees were not adversely affected by the adoption of the new mailing procedures. The Respondents also argue that the negative impact on management's rights to direct employees and to assign work is substantial and outweighs any possible benefit to employees.

c. Analysis and Conclusions

We conclude that Proposal 1 is nonnegotiable because it interferes with the Agency's rights to direct employees and to assign work. The right to direct employees means the right to supervise and guide them in the performance of their duties on the job. The right to assign work includes the discretion to determine the particular duties and work to be assigned as well as the particular employees to whom or positions to which duties and work will be assigned. The rights to direct employees and assign work encompass the determination of the quantity, quality, and timeliness of work production to be required of employees. See, for example, National Treasury Employees Union and Department of the Treasury, Bureau of Public Debt, 3 FLRA 769, 775-78 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).

According to the description of Proposal 1 in the parties' stipulation and the General Counsel's brief, Proposal 1 is concerned with informal production expectations which are established in each module rather than the formal performance standards established pursuant to 5 U.S.C. §§ 4301-4305. Regardless of whether informal production expectations or formal production standards are involved, Proposal 1 concerns the quantity, quality, and timeliness of work production required of employees. Consequently, the rights to direct employees and assign work are implicated.

The General Counsel argues that the proposal requires only that the Respondents reevaluate production expectations and determine whether adjustment is necessary. We reject this argument. This description is not consistent with the wording of the proposal or with the statement of intent contained in the stipulation. The proposal requires that an adjustment be made in production expectations. The parties have stipulated that the adjustment intended is that production expectations will be lowered. Proposal 1 requires an adjustment in production expectations. Therefore, we find that Proposal 1 places a substantive limitation on the Respondents' discretion to determine the quantity, quality, and timeliness of work production to be required of employees. In so doing, Proposal 1 interferes with the Agency's rights to direct employees and to assign work. Accordingly, we conclude that it is nonnegotiable. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (Proposals 4.A., 4.F., and 9.B.), affirmed mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam), in which the Authority found proposals to be nonnegotiable because they required an agency to take into account conflicting work requirements or make allowances for an employee's unfamiliarity with a matter assigned in formulating timeliness and production standards.

Because this proposal would interfere with the Respondents' discretion to determine production expectations, it is distinguishable from negotiable proposals which are limited to prescribing general requirements by which an agency's application of established performance standards may be judged in a subsequent grievance. See, for example, American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Proposal 5). In addition, this proposal is not limited to allowing an arbitrator to review the content of performance standards for compliance with applicable law. Compare Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987), in which the Authority held that arbitrators may determine whether an agency violated applicable law when it established performance standards and elements.

The General Counsel does not assert that this proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3). Furthermore, neither the General Counsel nor the Union provides the information or arguments required to sustain a claim under section 7106(b)(3). Therefore, we will not address whether this proposal constitutes an appropriate arrangement. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), in which the Authority set forth the responsibilities of parties seeking to sustain a claim under section 7106(b)(3).

In view of our conclusion, it is unnecessary to address the Respondents' arguments that this proposal is nonnegotiable for the additional reason that it interferes with the management right to assign employees.

2. Proposal 4

That a [sic] 90 day moratorium on errors written on this policy be established when this plan is implemented to allow for smooth transition of additional duties for the Notice Process Reviewer (NPR/Typist).

The parties stipulate that this proposal is intended to establish a 90-day grace period on the "writing of errors" related to the new procedure. The Respondents would continue to have the right to monitor employee performance but would not charge errors discovered against employees' performance for 90 days after the new procedure is effective.

a. Position of the General Counsel

The General Counsel contends that Proposal 4 is negotiable. The General Counsel asserts that Authority precedent supports a conclusion that proposals which only delay the implementation or effect of a management action, but which do not prevent an agency from carrying out the decision, are negotiable. The General Counsel asserts that because Proposal 4 would not prevent the Respondents from evaluating employee performance during the 90-day period, it is similar to proposals concerning "grace periods" which the Authority has found negotiable in such cases as National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94 (1987) (Provision 4). Additionally, the General Counsel relies on the Authority's decision on Proposal 4 in American Federation of Government Employees, AFL-CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA 329 (1986), petition for enforcement filed sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. Mar. 9, 1987).

b. Position of the Respondents

The Respondents contend that Proposal 4 is nonnegotiable because it: (1) interferes with management's rights under section 7106(a)(2)(A) and (B) to direct and discipline employees and to assign work to employees; (2) is neither a procedure under section 7106(b)(2) nor an appropriate arrangement under section 7106(b)(3); and (3) conflicts with a Government-wide rule or regulation-- 5 C.F.R. §§ 432.201 and 423.203.

The Respondents contend that Proposal 4 (1) prevents management from noting and correcting errors during the 90-day period and would restrict the Respondents' ability to evaluate employees during that period; (2) places substantive restrictions on the exercise of management's rights and, therefore, is not negotiable as a procedure under section 7106(b)(2); and (3) is not negotiable under section 7106(b)(3) because employees are not adversely affected by the establishment of job requirements and because the proposal excessively interferes with management's rights to direct employees and assign work.

The Respondent contends that under 5 C.F.R. §§ 432.201 and 432.203, employees may be reduced in grade or removed for unacceptable performance "at any time" during the performance appraisal cycle. The Respondents assert that, because this proposal would prevent such action against employees based on errors made during the 90-day period, it conflicts with these Government-wide regulations.

c. Analysis and Conclusions

We conclude that Proposal 4 is nonnegotiable because it interferes with the Agency's rights to direct employees and to assign work. This proposal limits the Respondents' ability to charge employees with errors during the first 90 days after implementation of the new mailing procedure. Therefore, it (1) limits management's ability to evaluate employees during that period; and (2) it restricts management's ability to appraise employees on their ability to master new job requirements.

Proposal 4 is to the same effect as Proposal 1 in National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985), which provided that employees would not be charged with errors relating to changes in their work requirements for a 6-month period. The Authority's decision that Proposal 1 in Social Security Administration was negotiable was reversed by the U.S. Court of Appeals for the Fourth Circuit. Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986). Subsequently, in American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 168-70 (1987), we addressed a proposal which was similar to that in Social Security Administration, 17 FLRA 657, in that it limited an agency's ability to evaluate employees during a prescribed period. In Social Security Administration, 28 FLRA 160, we found that because the proposal would not permit management to appraise employees on their ability to master new job requirements, it directly interfered with the right to direct employees and to assign work. We stated that to the extent that Social Security Administration, 17 FLRA 657, was inconsistent, we would no longer follow it.

Proposal 4 would restrict the Respondents' ability to appraise employees on their ability to master new job requirements. It directly interferes with the rights to direct employees and assign work. Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986) and Social Security Administration, 28 FLRA 160. For the same reasons stated in connection with Proposal 1, we find it unnecessary to address the Respondents' arguments concerning the applicability of section 7106(b)(3) to Proposal 4. Accordingly, we conclude that Proposal 4 is not within the duty to bargain.

In view of our conclusion, it is unnecessary to address the Respondents' arguments that this proposal is nonnegotiable for the additional reasons that it interferes with the management right to discipline employees and that it conflicts with a Government-wide regulation.

3. Proposals 5 and 6

That the implementation of this plan in Sections 3 and 6 be considered a 90 day study and the results be used to decide when typing backlogs have been sufficiently reduced to allow for PSC wide permanent implementation thereby reducing the possibility of job-related stress already incurred upon over-worked NPR's.

That at the end of the 90 day study, the parties agree that negotiations may be reopened to address the impact of implementation of this plan.

The parties stipulate that the Union's intent in making Proposal 5 is to define and clarify a work study to which the Respondents referred when announcing plans to institute the new mailing procedures. Specifically, a draft memorandum which accompanied the Respondents' August 12 memorandum informing the Union of the proposed change stated: "Initially, we will have only 2 sections . . . stuff and mail out their own letters. This will allow us to study the process and determine any workflow changes that may be necessary." Stipulation, Exh. 3. The Union proposes that the initial implementation be a "study" for 90 days and that the results be used to determine (1) the impact of the proposed change, and (2) when and whether further implementation within the MAMPSC would occur. The parties' stipulate that the Union's intent is not to prevent implementation, but rather, is to provide a basis for determining the impact of the new procedures.

The parties stipulate that the intent underlying Proposal 6 is that at the end of the "study" referred to in Proposal 5, the parties would reopen negotiations over the impact and implementation of the new procedures.

a. Position of the General Counsel

The General Counsel contends that Proposal 5 would not delay implementation of the new procedures. The General Counsel argues that the proposal constitutes an appropriate arrangement (a study) to determine the full impact of the new procedures on employees. In support of the contention that the proposal is negotiable under section 7106(b)(3), the General Counsel asserts that (1) the consequences of the new procedures are totally outside the employees' control; and (2) the proposal has no negative impact on management's rights or agency operations and would benefit both employees and management by providing an opportunity to ascertain the full ramifications of the new procedures.

The General Counsel argues that Proposal 6 is negotiable because it requires only that the parties reopen negotiations over the impact and implementation of the new mailing procedures. The General Counsel asserts that Proposal 6 merely affords the parties the opportunity to negotiate after actual, rather than foreseeable, effects have been identified.

b. Position of the Respondents

The Respondents contend that the Union's statement as to the intent of Proposal 5 is inconsistent with the wording of the proposal. Rather than seeking to define and clarify the word "study," as used in the Respondents' memorandum, the Respondents assert that the proposal would substitute a temporary assignment or "study" for the decision to change mailing procedures permanently.

The Respondents argue that Proposal 5 is nonnegotiable because it substantively and excessively interferes with the rights to assign work under section 7106(a)(2)(B). The Respondents contend that the proposal limits the discretion to assign work by requiring that the assignment of the new procedures be temporary (90 days). The Respondents contend that inherent in the right to assign work is the discretion to decide when an assignment will begin and end. Additionally, the Respondents contend that this proposal conditions the right to continue the new procedures on requirements that (1) "typing backlogs be sufficiently reduced to allow for PSC wide permanent implementation," and (2) a study be conducted. Respondents' brief at 38-39.

The Respondents argue that Proposal 5 is not negotiable as an appropriate arrangement. The Respondents assert that the impact of the new mailing procedures on employees is limited because the typists control the timeliness of the performance of the tasks involved. By comparison, the Respondents maintain that the impact of the proposal on management is substantial because the proposal would prevent the Respondents from implementing the change on a permanent basis. The Respondents also assert that the change in mailing procedures was adopted to increase the efficiency of agency operations and that the proposal would interfere with the Respondents' ability to enhance agency operations. In sum, the Respondents contend that the limited benefits which the proposal would afford employees are outweighed by the proposal's negative impact on management's rights and the effectiveness and efficiency of agency operations.

The Respondents argue that Proposal 6 is related to Proposal 5 and only is negotiable at the election of the Respondents if the Respondents were willing to negotiate over Proposal 5. The Respondents contend that Proposal 6 attempts to incorporate Proposal 5 and requires the Respondents to agree to and abide by procedures--established in Proposal 5--which the Respondents contend are inconsistent with section 7106.

c. Analysis and Conclusions

For the following reasons, we conclude that Proposals 5 and 6 are nonnegotiable.

The right to assign work encompasses determinations as to the particular duties and work to be assigned as well as the particular employees to whom or positions to which it will be assigned. For example, National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The parties do not dispute, and we conclude, that the decision to require the typists in the modules and I&E to perform the new mailing procedures constitutes the assignment of work.

Contrary to the Respondents' argument, we do not conclude that by designating the first 90-day period of the implementation of the new mailing procedures as a "study," the proposal interferes with the Agency's right to assign work. Treating the 90-day period as a "study" would not, by itself, require that the assignment of work be made on a temporary basis rather than on a permanent basis.

Proposal 5, however, is not limited to designating the first 90-day period as a "study" for the purpose of assessing the impact of the new procedures on employees. Proposal 5 also requires that the results of the "study" be used to determine "when and whether" further implementation of the new procedures within MAMPSC would occur. Stipulation at 5. The proposal specifically conditions the implementation of the new mailing procedures on a permanent, MAMPSC-wide basis on "sufficient" reduction in typing backlogs. By specifying a criterion by which the decision to implement the assignment of the new mailing procedures on a permanent, facility-wide basis will be made, Proposal 5 directly interferes with the Respondents' discretion to determine whether to assign work. See Department of Defense v. FLRA, 659 F.2d 1140, 1152 (D.C. Cir. 1981), in which the court distinguished between (1) proposals which are cast in procedural language but impinge on substantive management decisions by specifying the criteria pursuant to which decisions must be made and (2) "pure" procedures which have less direct substantive repercussions. By specifying a criterion pursuant to which the decision to implement the mailing procedures on a permanent, facility-wide basis will be made, Proposal 5 falls into the first category of proposals and impinges on a substantive management decision to exercise the right to assign work.

We now turn to the question of whether Proposal 5 is negotiable as an appropriate arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3). The threshold question is whether the proposal is an "arrangement" for adversely affected employees. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

The exercise of the management right to which this proposal is addressed is the requirement that typists perform the duties associated with the new mailing procedures. In other words, Proposal 5 concerns the effects of management's establishing job requirements. The establishment of job requirements does not by itself adversely affect employees. See Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324, 327 (4th Cir. 1986) (section 7106(b)(3) does not permit the union to propose appropriate arrangements for employees whose jobs become more demanding because their requirements change). Any adverse effect from job requirements flows from actions taken against an employee based upon the application of those job requirements. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 396 (1987), affirmed mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).

Proposal 5 is not focused on actions and effects which flow from the decision to require employees to perform duties associated with the new mailing procedures. Rather, it is directed at the decision to impose the new job requirements: it establishes a criterion on which the decision to continue or expand the new mailing procedures must be based. Therefore, we find that Proposal 5 does not concern an "arrangement" for adversely affected employees. See Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700 (1987) (Proposal 2); petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987).

We need not reach the question of whether the proposal is an "appropriate" arrangement, since it does not qualify for consideration under section 7106(b)(3) because it does not concern an "arrangement" for adversely affected employees. See Patent and Trademark Office, 25 FLRA at 396. Accordingly, since Proposal 5 directly interferes with management's right to assign work, it is nonnegotiable.

Proposal 6, in our view, exists only as a consequence of Proposal 5. Moreover, Proposal 6 incorporates the provisions of Proposal 5. Accordingly, inasmuch as we have found that Proposal 5 is nonnegotiable, we find that Proposal 6, also, is nonnegotiable.

B. The Respondents' Rejection of the Union's Proposals and Subsequent Implementation of Changes Without Having First Met With the Union Did Not Violate the Statute

The General Counsel argues that even if the proposals all are nonnegotiable, the Respondents violated the Statute by summarily rejecting them without having met with the Union and stating that implementation would occur as planned. General Counsel's brief at 9. When the Respondents stated on September 1, 1987, that the specific proposals were nonnegotiable, they had already indicated that implementation would occur on August 31. Therefore, the General Counsel argues that the Respondents implemented the changes without meeting and bargaining, and that any further attempt by the Union to negotiate would have been futile. Id. at 14.

The Respondents notified the Union by letter dated August 12, 1987, of their intention to change certain procedures. At the time, August 31 was announced as the tentative date for implementation. The Union was asked to submit any proposals in writing by August 18. By letter dated August 14, the Union submitted the six proposals in dispute in this c