49:0279(27)NG - - AFGE, Local 2879 and HHS, SSA, District Office, Oceanside, CA - - 1994 FLRAdec NG - - v49 p279



[ v49 p279 ]
49:0279(27)NG
The decision of the Authority follows:


49 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2879

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

DISTRICT OFFICE

OCEANSIDE, CALIFORNIA

(Agency)

0-NG-2113

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 4, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of four provisions disapproved by the Agency head under section 7114(c) of the Statute. The disputed provisions constitute portions of a Memorandum of Understanding (MOU) agreed to by the parties in connection with the implementation of a management plan governing the work assignments of particular employees.(2)

Provision 1 requires the Supplemental Security Income (SSI) FY93 Plan (Plan) to remain in effect for a minimum of 90 days, but allows management to make certain adjustments to the Plan.(3) We find that Provision 1 is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 2 requires the Agency to apply uniformly the term "emergency" when it results in the loss of employees' adjudication time(4) and provides that emergencies will be limited to events which are out of the ordinary. The second sentence of Provision 3 requires the Agency to make reasonable efforts to allow employees to make up lost adjudication time. Provision 4 establishes a goal of 1 day per week of adjudication time for employees and requires that the parties attempt to reach that goal. We find that the Provisions 2, 3, and 4 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and that the record is insufficient to determine whether they constitute arrangements for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. Accordingly, we conclude that those provisions are nonnegotiable.

II. Background

Employees in the SSI unit interview members of the public who contact the office either by telephone or in person. The employees then process the applications received as a result of those contacts. On November 9, 1992, the Agency notified the Union regarding proposed changes in the assignments and responsibilities of employees in the SSI unit. The Agency gave the Union a copy of the Plan, which contained work assignments and outlined the structure of the work in the SSI unit. The information provided to the Union by the Agency also contained the numbers of employees whose assignments to certain types of positions and duties would remain the same and those whose assignments would be changed. The parties negotiated and thereafter signed the MOU adopting the Plan with certain amendments.(5)

III. Provision 1

MEMORANDUM OF UNDERSTANDING

This agreement is between the Social Security Administration, Oceanside, CA, and AFGE Local 2879, regarding the decision to make certain changes in the operations of the T16 unit. The management proposal is adopted in its entirety, with the following additional agreements:

1. This [P]lan is to be adopted for a minimum of 90 days. At the end of the 90 days, either side may request to reopen. It is understood that fine tuning of the [P]lan may be made on a day to day basis, but the overall plan will be left intact during this period. If management wishes to terminate the [P]lan, notice and the opportunity to bargain will be given the Union.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Provision 1 directly interferes with its right to assign work to employees under section 7106(a)(2)(B) of the Statute. The Agency states that the Plan contains specific work assignments for unit employees. The Agency claims that by incorporating the provisions of the Plan into the MOU, Provision 1 directly interferes with management's right to assign work because it requires management to make the specified work assignments. The Agency also claims that the provision "freezes the assignments listed in the [P]lan for 90 days" and, therefore, that the provision is nonnegotiable because provisions that specify the duration of work assignments directly interfere with management's right to assign work. Statement of Position at 3 (Statement).

The Agency argues that Provision 1 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because the Union has not shown how implementation of the Plan adversely affects employees or how requiring the Agency to adhere to the Plan for 90 days will mitigate any adverse effects resulting from implementation of the Plan. The Agency asserts that: (1) the working conditions of unit employees have not changed as a result of the Plan; (2) the new assignments are necessary to balance the workload of employees; and (3) no employees are being adversely affected by the implementation of the Plan. The Agency maintains that the provision excessively interferes with its right to assign work because the Plan "goes to the essence of providing . . . service to the general public." Id. at 5. The Agency contends that if it does not retain the flexibility to make changes in specific assignments, its efficiency in providing service could be diminished.

2. Union

The Union asserts that the Agency's disapproval of Provision 1 is "a combination of misinterpretation of its effect and misstatement of the scope of bargaining under the Statute." Response at 5. According to the Union, incorporating the Plan into the MOU does nothing more than: "(1) inform employees what their new work requirements will be, insofar as those requirements are changed by the [ ] [P]lan; and (2) provide a record of the changes that were revealed to and negotiated with [the Union]." Id. at 6.

The Union states that the provision provides for fine tuning of the Plan and claims, therefore, that the parties "have left intact the right of the [Agency] to exercise its management rights relative to assignment of work and direction of employees, both during the initial 90-day period and afterward." Id. at 7. The Union argues that because the MOU allows for fine tuning of the Plan during the first 90 days, "the MOU does not have the effect . . . of 'freez[ing] the assignments listed in the [P]lan,'" as the Agency contends. Id. The Union also argues that, under the provision, the Agency may make changes to the Plan, which "changes include terminating the Plan any time," as long as it fulfills its bargaining obligation with the Union as required by the Statute. Id.

The Union asserts that, even if Provision 1 directly interferes with management's right to assign work, the provision nevertheless constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union cites specific work assignments in the Plan and claims that those assignments adversely affect employees. According to the Union, for example, one portion of the Plan establishes a new responsibility for only three employees that once was shared by all seven employees affected by the Plan. Another portion of the Plan shifts responsibility for a duty from one group of employees to another. A third portion requires all employees to set and reschedule certain appointments and, according to the Union, encourages rescheduling of appointments for claimants, which it claims could have a negative effect on the performance evaluation of the employee processing those claims. The Union contends that the additional assignments adversely affect employees because, as a result of the changes in work assignments, the employees have more arduous working conditions, less time for lunch, and less time to complete the timeliness standards for their other assignments.

The Union argues that, under the provision, "the plan would be followed, unless it were eliminated altogether, for the initial 90-day period," and that this "minimizes adverse effects on employees of having to make rapid, frequent adjustment to work processes and individual assignments." Id. at 10. The Union claims that "[e]ven the expectation of a limited stability for 90 days affords employees an ability to adjust to and perform under the Plan, notwithstanding that some details of it may change or it may be terminated altogether." Id. at 11 (emphasis in original). The Union also maintains that because the provision allows management to make adjustments in the Plan and is consistent with the Agency's intent to implement the Plan for a limited period of time, any interference with management's rights under section 7106 of the Statute is negligible.

B. Analysis and Conclusions

For the following reasons, we find that Provision 1 is nonnegotiable.(6)

Provision 1, by its terms, incorporates the SSI FY93 Plan into the parties' MOU and requires that the Plan remain in effect for a minimum period of 90 days, allowing only those changes that constitute "fine tuning." The provision would limit management's ability to change the nature or the duration of work assignments under the Plan during the 90-day period prescribed by the provision. Although the Union suggests that under the provision the Agency could make more significant changes in the Plan, short of termination, if it satisfied its bargaining obligations under the Statute, this is inconsistent with the plain language of the provision, which requires that, except for "fine tuning" or termination after notice and the opportunity to bargain, the "overall plan will be left intact." Consequently, we find that Provision 1 does more than inform employees of the contents of the Plan.

The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to make specific work assignments and the right to determine the duration of work assignments. See, for example, American Federation of Government Employees, National Council of Field Labor Locals, Local 644 and U.S. Department of Labor, Office of the Assistant Secretary, Philadelphia, Pennsylvania, 37 FLRA 828, 832-33 (1990). Proposals or provisions that impose restrictions on management's ability to determine the nature and duration of work assignments, but provide that these restrictions will be in effect for only a limited period of time, directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Branch Office, Hemet, California, 46 FLRA 1152, 1155-59 (1993) (Branch Office, Hemet). See also United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988) (court held that a proposal requiring the agency to withhold implementation of a program and conduct a study was not a negotiable procedure because it would require the agency to refrain from exercising its authority under section 7106 of the Statute for up to 6 months).

We note that Provision 1 is distinguishable from proposals that require only that an agency satisfy its bargaining obligation under the Statute before implementing a change in conditions of employment pursuant to the exercise of a management right under section 7106 of the Statute. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 402-05 (1990) (proposal requiring that agency reinstitute the previous work schedule, after a pilot program, until negotiations are held over the impact and implementation of the proposed change did not interfere with the agency's rights under the Statute). Such proposals merely incorporate the requirements of the Statute. Provision 1 in this case does not limit management's ability to change work assignments under the Plan pending fulfillment of the Agency's bargaining obligation under the Statute and, therefore, does not incorporate the requirements of the Statute. Rather, unless the Agency terminates the Plan altogether, the provision prohibits management from changing employees' work assignments for the 90-day period prescribed by the proposal unless those changes constitute "fine tuning" of the Plan.

Because Provision 1 establishes a substantive standard limiting management's ability to change the nature and duration of work assignments under the Plan for a period of 90 days, we find, consistent with Branch Office, Hemet, that Provision 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Having found that Provision 1 directly interferes with management's right to assign work, we next consider whether the provision is nevertheless negotiable as an appropriate arrangement. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Authority established an analytical framework for determining whether a provision constitutes an appropriate arrangement. First, we determine whether the provision constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the provision in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Patent and Trademark Office) (Member Armendariz, concurring in part and dissenting in relevant part). Second, if we conclude that the provision is an arrangement, we then determine whether the provision is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the provision outweighs the provision's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

Even assuming Provision 1 is an arrangement, we conclude that it is not appropriate because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union argues that the institution of the Plan adversely affected the employees because their jobs and work schedules were changed, thereby increasing the stress on the employees, the arduousness of the work, and the potential for negative performance evaluations. At the same time, the Union also maintains that the retention of the Plan for at least 90 days would benefit the employees by ensuring that there would be no further changes during that period. Although the Union's positions are somewhat contradictory, we agree that employees would receive some benefit from the knowledge that they will not be required to learn new skills or adjust to new schedules for three months and that they will have that period in which to improve any negative performance that may have occurred in the early stages of the Plan.

We also conclude that the burden on the Agency of maintaining the Plan, except for "fine tuning," for 90 days would be significant. Thus, despite the fact that the Agency may have intended originally to retain the Plan for longer than 90 days, it might determine during the first weeks of the Plan's operation that substantial changes were necessary in order to use its resources in the most effective manner. Under Provision 1, however, it would be limited either to making only minor adjustments to the Plan or to terminating it entirely. This inability to react quickly to demonstrated problems with the Plan, which involves the allocation of all the personnel in a unit, could severely affect the Agency's ability to perform its mission.

Based on the foregoing, we conclude that the burden on the Agency of maintaining the Plan for 90 days, except for fine tuning, outweighs the benefits that employees would realize. Accordingly, we conclude that Provision 1 excessively interferes with the Agency's right to assign work and is nonnegotiable.

IV. Provision 2

2. The term "emergency" for the purpose of loss of adjudication time will be applied uniformly. The parties agree that emergencies will be limited to events which are out of the ordinary.

A. Positions of the Parties

1. Agency

The Agency claims that by defining the term "emergency" as those events that are out of the ordinary, Provision 2 directly interferes with management's right to take action in an emergency under section 7106(a)(2)(D) of the Statute and is nonnegotiable. The Agency argues that Provision 2 is nonnegotiable because, by defining the term "emergency," the provision would limit management's right to act during emergencies to situations which met the proposed definition.

The Agency also claims that Provision 2, when read together with Provisions 3 and 4, imposes a substantive restriction on management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, these provisions require management to attempt to provide 1 day of adjudication time a week to employees. The Agency states that the provisions also require that management's decisions to deny employees adjudication time because of an emergency will be uniform and equitable and that management will attempt to give back any adjudication time lost as a result of such a management decision.

The Agency asserts that Provision 2 directly interferes with management's right to assign work because it would prohibit management from reassigning employees from adjudication duties to other tasks in situations which are not emergencies within the definition of the provision. The Agency argues that management's right to assign work to employees under section 7106(a)(2)(B) of the Statute is not limited to emergencies. The Agency contends that if it were, section 7106(a)(2)(B) and section 7106(a)(2)(D) of the Statute would be redundant.

2. Union

The Union contends that Provision 2 is a negotiable procedure and that the Agency has misinterpreted or misrepresented the provision. The Union asserts that Provision 2 does not condition the exercise of any management right on the presence or absence of an emergency. Rather, the Union claims, Provision 2 "would become operative only after the [Agency] made a reassignment to an employee who otherwise would be adjudicating claims, as [an] exercise of the [Agency's] rights to rescind the use of time otherwise earmarked for adjudication." Response at 12 (emphasis in original). The Union states that, in context, Provision 2 simply means that whenever the Agency finds it necessary to rescind time that otherwise would be used for adjudication, the Agency will make its determination to rescind that time in a uniform manner and only when conditions are out of the ordinary.

According to the Union, Provision 2 does not require the Agency to use a specific definition of emergency. Rather, the Union argues, Provision 2 clearly and expressly delimits the meaning of emergency by the modifying phrase "for the purposes of loss of adjudication time." The Union maintains that Provision 2 "leaves unaffected whatever standard [the Agency] determines meets the definition of 'emergency' when it cancels an employee's adjudication time." Id. at 13.

The Union also contends that Provision 2 does not directly interfere with management's rights to direct employees or assign work under section 7106(a)(2)(A) and (B) of the Statute because the provision addresses the procedures leading to a management decision to rescind adjudication time, and does not directly impose a condition or constraint on the Agency in making or not making such a decision.

The Union also argues that Provision 2 is an appropriate arrangement that would ameliorate the adverse effects on employees who are being denied the opportunity to use work time to adjudicate claims. According to the Union, adjudication refers to the technical process of reviewing information on a claim for benefits (in this instance, SSI benefits) after the interview with the claimant and in order to trigger the correct payment or non-payment determination. The Union also asserts that with respect to individual claims representatives or service representatives, "adjudication time directly affects performance appraisal because it contributes to (and its absence impedes) timely and accurate completion of the major mission-related workload, which is claims processing." Response at 18. The Union maintains that Provision 2, by requiring uniform treatment of employees by management, enhances employee trust when, because of a heavy workload or understaffing, management must occasionally rescind adjudication time.

B. Analysis and Conclusions

For the following reasons, we find that Provision 2 is nonnegotiable.

As explained by the Union, the term "adjudication" refers to the technical process whereby claims representatives, after interviews with claimants, review the information provided by the claimants in order to determine the correct disposition of the claims. The Union also explains that the phrase "adjudication time" refers to the time that a claims representative spends away from direct contact with claimants, reviewing claims information and resolving claims. Under the SSI FY93 Plan, the claims representative assigned to adjudication on a given day "would be the last person used in an emergency situation." See Appendix. Both the terms of the Plan and the Union's statements indicate that this portion of the Plan is intended to prescribe the circumstances in which a claims representative assigned to adjudication could be used for direct contact with claimants, that is, to define when a claims representative could lose adjudication time. We note that the Agency does not dispute the Union's explanation of adjudication time, and as the Union's explanation is consistent with the terms of the provisions, we adopt the Union's interpretation of the provision.

Consequently, based on the terms of Provision 2 and the record in this case, we interpret the provision as further defining the circumstances in which, under the Plan, a claims representative can be reassigned from adjudication duties, for example, to direct contact with claimants. Provision 2 prescribes that claims representatives assigned to adjudication will lose adjudication time only in circumstances that are out of the ordinary and that management's decisions to reassign claims representatives from adjudication time will be made in a uniform manner. By thus limiting management's decision to reassign claims representatives from adjudication to another type of work, Provision 2 establishes a substantive criterion governing management's right to assign work. We find that the terms of the provision and the record in this case do not support the Union's claim that the provision does not constitute a substantive limitation on management's right to assign work.

Proposals or provisions that prescribe substantive criteria governing the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute directly interfere with that right. See, for example, American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA 1570, 1579 (1992) (FGIS). In particular, proposals that limit management's ability to make work assignments except in unusual or abnormal circumstances directly interfere with management's right to assign work. See FGIS, 44 FLRA at 1579-80; American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1040-42 (1988) (Naval Weapons Station, Concord), reversed as to other matters, No. 88-7408 (9th Cir. Feb. 7, 1989). Because Provision 2 establishes a substantive criterion limiting management's ability to assign claims representatives to duties other than adjudication, we find, consistent with FGIS and Naval Weapons Station, Concord, that Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

We turn now to the question of whether Provision 2 is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the exercise of a management right. As previously noted, the Authority established an analytical framework for determining whether proposals that directly interfere with management's rights are nevertheless negotiable because they constitute appropriate arrangements under section 7106(b)(3) of the Statute in KANG, 21 FLRA 24 (1986). Under that framework, we initially determine whether a proposal constitutes an arrangement. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See id. at 31. If the proposal satisfies the first part of this analysis, we then determine whether the proposed arrangement is appropriate. Under this second part of the analysis, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees such that the proposal excessively interferes with management's rights. See id. at 33.

In response to a number of court decisions on the subject, we recently reexamined our approach to analyzing whether proposals constitute arrangements for adversely affected employees in Patent and Trademark Office. We agreed, as a general proposition, with the U.S. Court of Appeals for the District of Columbia Circuit that "an arrangement must be tailored to compensate or benefit employees suffering adverse effects flowing from the exercise of management's rights and cannot be so broad in its sweep that it applies to all employees regardless of whether they are likely to be adversely affected by management action that comes within the purview of management's rights." Id. at 9. However, we also concluded that proposals need not be tailored with "surgical precision," id., noting the statement of the D.C. Circuit in United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) that proposals need not target in advance the specific individual employees who will be adversely affected.

In sum, in determining whether a provision constitutes an arrangement within the meaning of section 7106(b)(3) of the

Statute, we examine whether the provision is sufficiently tailored to compensate or benefit adversely affected employees or whether it is impermissibly broad in its sweep. We conclude that the record with regard to the effect of Provision 2 does not permit us to make that examination.

More specifically, the record does not disclose, other than in the most general terms, how the employees would be affected by the loss of adjudication time. The Union explains that when engaged in adjudication, a claims representative is removed from contact with claimants in order to review information and resolve claims. However, this explanation does not indicate what adverse consequences to the employees would flow from the unequal distribution of adjudication time. Thus, based on the record before us, we cannot determine how much of an employee's current workload is devoted to adjudication; how adjudication time is evaluated for performance appraisal purposes; and whether or to what extent management factors time spent on adjudication into its appraisals of claims processing work. Moreover, despite the Union's bare assertion that the Plan creates additional work assignments without compensating reductions in other assignments, we have no information about how work assignments were made before and after the implementation of the Plan, information that might assist us in determining the effect of additional adjudication time on an employee's ability to complete assigned claims processing work in the time allotted.

Accordingly, we find that the record in this case does not establish that this provision constitutes an arrangement for employees who are adversely affected by the exercise of management's rights. Thus, this provision does not satisfy the first step of the analysis that was established in KANG. See, for example, American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1615 (1993).

Based on the foregoing, we conclude that Provision 2 is nonnegotiable. In light of this determination, we do not need to consider the parties' arguments regarding whether Provision 2 directly interferes with section 7106(a)(2)(D) of the Statute.

V. Provisions 3 and 4

3. CR's are free to maintain records of adjudication time which they are not given. Management will make reasonable efforts to have lost time made up.

[Only the underscored portion of Provision 3 is in dispute.]

4. The parties agree to a mutual goal of one full day per week of adjudication time. In the future, they will strive to achieve that goal.

A. Positions of the Parties

1. Agency

The Agency contends that Provisions 3 and 4, when read together with Provision 2, impose a substantive restriction on management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency claims that the provisions require management to attempt to provide 1 day of adjudication time a week to employees and to make efforts to give back any time lost when employees are reassigned from adjudication time to other tasks. According to the Agency, proposals that set aside specific amounts of time for the performance of work are nonnegotiable because they directly interfere with management's right to assign work. The Agency also asserts that the use of modifiers, such as "every attempt" and "fair and equitable," in conjunction with the exercise of a management right does not convert an otherwise nonnegotiable provision into one that is negotiable.

The Agency claims that the Union does not address how the new alignment of work assignments under the Plan adversely affects employees and how the provisions would alleviate the adverse impact. According to the Agency, the provisions could seriously impair service to the public. The Agency states that the work of the employees covered by the provisions essentially involves interviewing the public or processing work taken from the public. The Agency maintains that the work flow is unpredictable, both as to the volume of the work and as to the type of service sought, and that these factors affect work units differently. The Agency claims that it must "jugg[le] resources to minimize public waiting time." Statement at 7. The Agency contends that, by limiting management's ability to allocate its resources, the provisions excessively interfere with management's right to assign work.

2. Union

The Union maintains that Provision 3 does not set aside any minimum amount of time for adjudication and argues, therefore, that the provision does not directly interfere with the assignment of work. The Union states that Provisions 3 and 4 are distinguishable from nonnegotiable proposals that have prescribed or assigned a certain time for the performance of work because the requirements of those proposals could not be discontinued or modified by the employer. The Union asserts that Provision 3 is negotiable because it merely provides a goal of 1 day a week for adjudication purposes and requires that reasonable efforts be made to reach that goal.

The Union contends that Provisions 3 and 4 constitute appropriate arrangements for employees who are receiving additional assignments as a result of the Plan, but are not being given compensating reductions in other assignments or supplemental work time. The Union claims that the provisions are appropriate arrangements for "employees adversely affected by the increased work, stress, and arduousness resulting from that Plan." Response at 21.

B. Analysis and Conclusions

For the following reasons, we find that the second sentence of Provision 3 and Provision 4 are nonnegotiable.

1. Provision 3, second sentence

The second sentence of Provision 3 requires the Agency to make reasonable efforts to replace adjudication time that employees lost when they were reassigned to other tasks. The effect of this portion of Provision 3 is to obligate the Agency to make an effort to provide employees time in which to perform adjudication duties that they were unable to perform because they had been reassigned.

Provisions or proposals which require an agency to make reasonable efforts to assign particular work to an employee directly interfere with management's right to assign work. See, for example, American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 532-33 (1991) (Justice, INS), reversed as to other matters, 975 F.2d 218 (5th Cir. 1992) (proposal that would require the agency to make a reasonable effort to find work for an employee who could not carry a firearm held to directly interfere with management's right to assign work).

The second sentence of Provision 3 would require management to make a reasonable effort to assign employees adjudication time to compensate for adjudication time that the employees lost because they were reassigned to other duties. According to the Union, Provision 3 does not require that any time be set aside. We agree that by requiring the Agency to make a reasonable effort to assign employees adjudication time, the provision does not mandate that the Agency assign adjudication time to employees whenever the employees are due under the Plan to receive that time. The inclusion of such qualifying language, however, does impose on the Agency an obligation to make a reasonable effort to assign adjudication time and the imposition of that obligation directly interferes with management's exercise of its right to assign work. See, for example, id.; International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 37-38 (1990) (provision that required agency to make reasonable efforts to assign employees to positions directly interfered with management's right to assign work).

The Union contends that the second sentence of Provision 3 is like Proposal 4 in Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 491-92 (1987), enforced as to other matters, 911 F.2d 743 (D.C. Cir. 1990), which required the agency to make every reasonable effort to provide agency transportation for unit employees who were obtaining job-related training or taking leave. However, that proposal was based on a Department of Defense Directive regarding travel for teachers taking posts overseas. The proposal did not involve the exercise of a management right. See id. at 491. Therefore, the Union's reliance on that case is misplaced.

We conclude, therefore, that by requiring the Agency to make a reasonable effort to exercise its right to assign work in a particular way, the second sentence of Provision 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153, 175-76 (1991) (proposal that required the agency to make every effort to provide adequate preparation time for teachers directly interfered with management's right to assign work).

Turning to the Union's contention that Provision 3 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute, we again must resolve the threshold question of whether the provision is an arrangement for adversely affected employees.

The second sentence of Provision 3, on its face, requires management to make reasonable efforts to replace lost adjudication time. Thus, as was the case with Provision 2, Provision 3 is an arrangement only if it can be demonstrated that the employees are adversely affected by the loss of adjudication time. As we have discussed above, the record in this case is inadequate for us to make such a determination. As we cannot determine the adverse effects with any certainty, this provision does not satisfy the first step of the analysis that was established in KANG. Accordingly, we conclude that the second sentence of Provision 3 is nonnegotiable.

2. Provision 4

Provision 4 establishes a goal of 1 day per week of adjudication time for employees and requires the Agency, together with the Union, to attempt to reach that goal. The effect of this provision is to obligate the Agency to attempt to provide employees 1 day per week of adjudication time.

As stated above, management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine what duties will be assigned. Provisions or proposals that require an agency to attempt to assign particular work to an employee directly interfere with management's right to assign work. See, for example, Justice, INS. Under Provision 4, the Agency would be required to strive to assign employees 1 day of adjudication time per week. Although the provision does not mandate that the Agency provide the adjudication time, it does obligate the Agency to attempt to make the assignment. Compare American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1518-19 (1992) (the portion of Proposal 31 establishing a target for hiring underrepresented groups was negotiable because it did not require the agency to take or refrain from taking any action to meet that goal). Because Provision 4 obligates management to make an effort to provide a specified amount of time to perform adjudication duties, we find, consistent with Justice, INS, that Provision 4 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

For the reasons stated above with regard to Provisions 2 and 3, the record is insufficient to permit a determination regarding the adverse effects on the employees from the assignment of more than 1 day a week of adjudication time. Accordingly, as we cannot determine whether Provision 4 is negotiable as an appropriate arrangement, we conclude that Provision 4 is nonnegotiable.

VI. Order

The petition for review is dismissed as it relates to Provision 1, Provision 2, the second sentence of Provision 3, and Provision 4.

APPENDIX

November 9, 1992

SSI FY 93 PLAN

Beginning Dec. 1, 1992, the SSI unit would operate as follows:

CR ASSIGNMENT

2 TSC CR's
1 FLOOR CR
2 RZ/PERC1 (5 RZ, 1 PERC) - No Change
1 RZ/PERC2 (3 RZ, 2 PERC) - No Change
1 CR on Adjudication

The 2 TSC CR's and the 1 FLR CR would work as a team. All three would be responsible for covering the floor during lunches. Presently, all CR's are available. If one member of the team were absent, the remaining two CR's would cover the floor and TSC appts.

The TSC CR's would also be responsible for handling the "white slips" (unscheduled referrals from T2) - Presently handled by FLOOR CR's.

The CR's would like all the SR's trained in properly setting TSC appts and rebooking RZ appts in the appropriate schedule. If this is not possible, the FLOOR CR would handle setting up TSC appts and rebooking missed RZ appts. Although the claimant would not be refused same day service, the wait would be explained and appts would be encouraged.

There would only be one late T16 CR. This CR would be the FLOOR CR for that day - presently use 2.

The 3 RZ/PERC CR's would also work as a team. If one were absent, the other two would handle rescheduling that CR's appts and interviewing those appts that could not be rescheduled - presently pull a FLOOR CR.

The ADJ CR would be the last person used in an emergency situation.

The rotation of the CR's would be on a daily basis - No Change.

The appt times for the RZ's, PERC's and TSC appts would remain unchanged for now.

On a daily basis, the SSI unit would handle 10 TSC interviews, 13 RZ interviews, and 4 PERC interviews. On a weekly basis, the SSI unit would handle 50 TSC interviews (+10), 65 RZ interviews (-2), and 20 PERC interviews (no change).

Member Armendariz' Separate Opinion as to Provisions 2, 3, and 4

I concur with my colleagues to the extent consistent with my views as set forth below.

My colleagues have found Provision 2, the second sentence of Provision 3, and Provision 4 nonnegotiable on the basis that the record is insufficient to determine whether the provisions constitute appropriate arrangements.

Although I would also find the provisions nonnegotiable, I would do so for a different reason. I agree with my colleagues that the provisions directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. However, I would find that the provisions do not constitute arrangements for employees adversely affected by the exercise of a management right under section 7106(b)(3) of the Statute. I will address each provision separately.

Provisions 2, 3, and 4

My colleagues find that the record in this case is not sufficient for them to determine whether Provisions 2, 3, and 4 constitute arrangements within the meaning of section 7106(b)(3) of the Statute. I disagree because, in my view, based on the wording of the provisions and the record in this case, it is clear that the provisions do not constitute arrangements.

Specifically, I note that, as worded, the provisions would obligate the Agency to attempt to provide claims representatives specified amounts of adjudication time, to withdraw that adjudication time only in limited circumstances, and to replace that adjudication time if it is withdrawn. Moreover, I note that the provisions do not allow the Agency to make exceptions to the requirements or limitations concerning adjudication time based on claims representatives' adjudication workload.

I also find, contrary to the Agency's contention, that the Union addresses how claims representatives would be adversely affected by the loss of adjudication time and how the provisions would ameliorate those adverse effects. Moreover, I note that the Agency did not request an opportunity to file a supplemental submission disputing the Union's contentions. See, for example, American Federation of Government Employees, Local 868 and U.S. Department of the Interior, Chattanooga and Chickamauga National Military Park, Fort Oglethorpe, Georgia, 45 FLRA 224, 225 (1992) (the Authority considered the agency's supplemental statement addressing only specific appropriate arrangements arguments raised by the union for the first time in the union's response). Therefore, based on the Union's claims regarding the adverse effects of loss of adjudication time, I believe that it is possible to assess whether the provisions are tailored to provide benefits only to those claims representatives who would suffer the claimed adverse effects. Consequently, I disagree with my colleagues' conclusion regarding the sufficiency of the record.

As I stated in my separate opinion in National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994), I would find that, under National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993), United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992), and United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992), in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be tailored so as to benefit or compensate only those employees who would suffer an adverse effect as a result of the exercise of a management right. Applying that test to Provisions 2, 3, and 4, I conclude that those provisions do not constitute arrangements within the meaning of section 7106(b)(3) of the Statute.

Provision 2

The terms of the Plan indicate that claims representatives are rotated to adjudication duties on a daily basis. There is nothing in the Plan indicating that the rotation to adjudication is affected by the volume of adjudication work to be performed by a claims representative. Provision 2, however, would prevent management from reassigning the claims representatives assigned to adjudication unless the events were out of the ordinary, even when the adjudication workload is such that the claims representatives did not need the adjudication time. In other words, Provision 2 would apply to circumstances in which an adverse effect on claims representatives would result from a reassignment to other duties and to circumstances in which it would not. Provision 2, therefore, would provide a benefit to claims representatives who would not be adversely affected by reassignment from adjudication. Consequently, I find that the benefit afforded claims representatives by Provision 2 is not tailored to apply only to those claims representatives adversely affected by management's right under section 7106(a)(2)(B) of the Statute to reassign the claims representatives to other duties. I find, therefore, that the provision is not tailored to benefit or compensate only those employees suffering adverse effects flowing from the exercise of a management right under section 7106 of the Statute. Accordingly, I would find, consistent with the standard set forth above, that Provision 2 is not an arrangement within the meaning of section 7106(b)(3) of the Statute.

The Second Sentence of Provision 3

The second sentence of Provision 3, on its face, requires management to make reasonable efforts to replace lost adjudication time. The sentence does not condition those efforts on considerations as to the workload of the employees who lost adjudication time. Consequently, the sentence would apply equally to employees whose workload is such that they could perform other tasks and still be able to complete their adjudication work and to those employees who could not do so. Under those circumstances, the sentence would apply to employees who would not be adversely affected by a reassignment from adjudication time to other tasks. I find, therefore, that the sentence is not tailored to benefit or compensate only those employees suffering adverse effects flowing from the exercise of a management right under section 7106 of the Statute. Accordingly, I would find, consistent with the standard set forth above, that the second sentence of Provision 3 is not an arrangement within the meaning of section 7106(b)(3) of the Statute.

Provision 4

Provision 4, on its face, requires both parties to strive to reach a goal of 1 day per week of adjudication time. The provision does not condition those efforts on considerations as to the workloads of employees and would obligate management to attempt to provide 1 day a week of adjudication time even if employees' workloads did not require that amount of time. Consequently, the provision would apply equally to employees whose workloads of adjudication could be completed in less than a day and those whose workloads could not. Under these circumstances, the provision would apply to employees who would not be adversely affected by work assignments under the Plan. I find, therefore, that the provision is not tailored to benefit or compensate only those employees suffering adverse effects flowing from the exercise of a management right under section 7106 of the Statute. Accordingly, I would find, consistent with the standard set forth above, that Provision 4 is not an arrangement within the meaning of section 7106(b)(3) of the Statute.




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

1. Member Armendariz' separate concurring opinion as to Provisions 2, 3, and 4 is set forth at the end of this decision.

2. The Union signed the MOU on November 20, 1992, and the Agency signed the MOU on November 23, 1992. Consequently, we find that the MOU was executed on November 23, 1992. The Agency head disapproved the MOU on December 23, 1992, and the Agency served the notice of disapproval on the Union on that date. Accordingly, because the Agency head disapproval was served on the Union within the 30-day period set forth in section 7114(c)(2) of the Statute, we find that the disapproval was timely and the Union's argument to the contrary is without merit. See section 2429.21 of the Authority's Rules and Regulations. See also National Weather Service Employees Organization and U.S. Department of Commerce, National Weather Service, Washington, D.C., 40 FLRA 890 (1991).

3. The SSI FY93 Plan is set forth in the Appendix. The record does not indicate the meaning of the abbreviations used in the document.

4. Adjudication time refers to the time that a claims representative spends away from direct contact with claimants, reviewing claims information and resolving claims.

5. The Agency disapproved the MOU without specifying the particular provisions that it cons