49:0582(54)NG - - AFGE, National Council of SSA Field Assessment Locals and HHS, SSA, Regional Office of Program and Integrity Reviews, Atlanta, Georgia - - 1994 FLRAdec NG - - v49 p582



[ v49 p582 ]
49:0582(54)NG
The decision of the Authority follows:


49 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF SSA FIELD ASSESSMENT LOCALS

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

REGIONAL OFFICE OF PROGRAM AND INTEGRITY REVIEWS

ATLANTA, GEORGIA

(Agency)

0-NG-2184

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 21, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two proposals relating to Data Review Technicians (DRTs) in the Agency's Atlanta Regional Office of Program and Integrity Reviews (ROPIR). For the following reasons, we find that Proposal 1, which requires the Agency to make certain efforts to upgrade DRT positions, is nonnegotiable, and Proposal 2, which addresses special pay for DRTs, is negotiable.(1)

II. Proposal 1

It is recognized by the parties that all employees should have the opportunity to advance to a higher[-]graded position should they choose to do so. To this end, management agrees to make a diligent, concerted, good[]faith effort to establish the DRT position has (sic) a potential career-ladder position to a higher[-]graded position within ROPIR. Management will keep the Union fully informed to its efforts in this area. Concurrently, management will make a diligent, concerted, good[]faith effort to seek to upgrade the DRT position to a higher grade. Likewise, management will keep the union fully informed to its efforts in this area.

A. Positions of the Parties

The Agency argues, based on National Association of Government Inspectors and Quality Assurance Personnel, Unit #2 and Naval Air Engineering Center, Lakehurst, New Jersey, 8 FLRA 144 (1982), that Proposal 1 interferes with its right to determine its organization under section 7106(a)(1) of the Statute. The Agency also asserts that Proposal 1 affects the classification of positions and, as such, is excluded from the obligation to bargain under section 7103(a)(14)(B) of the Statute.

The Union did not file a response to the Agency's statement of position. In its petition for review, the Union contends that Proposal 1 merely obligates ROPIR management to "make a diligent, concerted, good faith effort" to establish a career ladder for DRTs and to upgrade DRT positions. Petition for Review at 1. According to the Union, as any action to establish a career ladder for DRTs or to upgrade DRT positions "must be approved by higher management either in the Regional Personnel Office and/or in the [Social Security Administration] headquarters in Baltimore," the proposal requires only that "ROPIR management make certain efforts on behalf of the employees in dealing with higher[-]level management." Id. at 2, 3.

B. Analysis and Conclusions

An agency's right to determine its organization under section 7106(a)(1) of the Statute includes the right to determine "how an agency's organizational grade level structure will be designed[.]" National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 409-10 (1990) (Treasury). A requirement to establish a career ladder for certain employees or to upgrade specified positions directly interferes with this right. For example, Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 324-25 (1987).

Under Proposal 1, "management" would take specified steps to establish a career ladder for DRTs and to upgrade such DRT positions. The Union explains that the term "management" refers to local ROPIR management and asserts that, as approval to establish a career ladder and to upgrade DRT positions must be obtained from higher-level management within the Social Security Administration, the proposal merely obligates ROPIR management to seek such approval from higher-level management concerning such matters.

We conclude that, even assuming that Proposal 1 only obligates ROPIR management to recommend that higher-level management establish a career ladder and upgrade certain positions, the proposal is nonnegotiable. As previously noted, decisions to establish a career ladder and upgrade particular positions are included within management's right to determine its organization under section 7106(a)(1) of the Statute. Moreover, "the actual decisions regarding the exercise of the rights are nonnegotiable, as are essential aspects of the deliberative process by which the agency decisions are reached, such as recommendations from lower-level managers." National Guard Bureau and Adjutant General, State of Pennsylvania, 35 FLRA 48, 54 (1990). By requiring local ROPIR management to make recommendations to higher-level management concerning matters encompassed within its right to determine its organization under section 7106(a)(1) of the Statute, we conclude that Proposal 1 directly interferes with that right. See id. In this connection, we find the Union's reliance on American Federation of Government Employees, National Council of Social Security Payment Center Locals and U.S. Department of Health and Human Services, Social Security Administration, 47 FLRA 439 (1993) misplaced. Unlike Proposal 1 in this case, which requires intra-Agency recommendations concerning matters subject to the Agency's discretion pursuant to the exercise of its management rights, the proposal in that case concerned a matter where management rights were not involved and where the discretion to approve the recommended action rested outside the agency. Finally, as the Union does not claim that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, Proposal 1 is nonnegotiable.(2)

III. Proposal 2

Management will make a good-faith, diligent, and concerted effort to provide special pay for the DRTs. It is understood that other SSA components have the special pay for substantially equal work and the DRTs in ROPIR should not be disadvantaged. Management will keep the union fully informed in their efforts in this area.

A. Positions of the Parties

The Agency asserts that, in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 38 FLRA 1605 (1991) (Internal Revenue Service), the Authority found that a proposal concerning special pay for particular employees was "inconsistent with a Government[-]wide regulation." Statement of Position at 4. In addition, the Agency claims that based on Police Association of the District of Columbia and United States Department of the Interior, National Park Service, National Capital Region, 11 FLRA 594 (1983) (National Park Service), Proposal 2 concerns classification matters and, therefore, is excluded from the duty to bargain by section 7103(a)(14)(B) of the Statute.

As previously noted, the Union did not file a response to the Agency's statement of position. In its petition for review, the Union argues that the "authority for special pay must come from the [A]gency headquarters . . . and/or from the Regional Personnel Office." Petition for Review at 3. In this regard, the Union notes that, like Proposal 1, Proposal 2 merely requires the local ROPIR management to make a "good-faith, diligent, and concerted effort" to obtain such approval from higher-level management to provide special pay for these employees. Id.

B. Analysis and Conclusions

Proposal 2 obligates "management" to take specified efforts to obtain special pay for DRTs. The Union explains that the reference to "management" in Proposal 2, like Proposal 1, refers to local ROPIR management and that, as authority to provide special pay rests with higher-level management within the Social Security Administration, the proposal merely obligates ROPIR management to seek such approval from higher-level management. According to the Union, higher-level management retains the discretion under the proposal to approve or not approve special pay for DRTs.

The Union's interpretation of Proposal 2 is consistent with its plain wording, and we adopt the interpretation for the purposes of this decision. Accordingly, Proposal 2 only requires local ROPIR management to provide a recommendation to higher-level management concerning the provision of special pay for certain employees.

As previously noted, under regulations promulgated by OPM, 5 C.F.R. § 530.301-307, the minimum rates of pay for certain employees in certain geographic areas may be increased in order to overcome impediments to the recruitment or retention of personnel. In particular, these regulations provide procedures by which agencies may request OPM approval of special pay requests. Accordingly, unlike Proposal 1, which required intra-Agency recommendations concerning matters subject to the Agency's discretion pursuant to the exercise of its management rights, Proposal 2 concerns a matter where management rights are not involved and, instead, discretion to approve the recommended action rests outside the Agency.

An agency is obligated to bargain to the extent of its discretion on otherwise negotiable matters. See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578, 585-86 (1982), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). There is nothing in the record in this case which indicates that the Agency lacks discretion under 5 C.F.R. § 530.301-307 to request OPM to approve special pay for certain employees. Thus, a proposal obligating the Agency to make such a request to OPM, would be negotiable. See, for example, National Federation of Federal Employees, Local 1379 and U.S. Department of the Interior, Bureau of Land Management, Oregon State Office, Portland, Oregon, 44 FLRA 1246, 1248-49 (1992).

In this case, however, the Agency is not actually required to seek such approval from OPM. That is, based on the Union's interpretation of Proposal 2, which we have adopted for the purposes of this decision, the proposal only requires local ROPIR management to provide a recommendation to higher-level management concerning the provision of special pay for specified employees. In this connection, nothing in 5 C.F.R. § 530.301-307 precludes local management from making recommendations to higher-level management within an agency concerning a decision to request OPM to approve special pay for specified employees. Thus, insofar as the Agency contends that Proposal 2 is inconsistent with a Government-wide regulation, we disagree.(3) As such, we find the Agency's reliance on Internal Revenue Service, which involved a proposal requiring the granting of incentive awards and was held inconsistent with applicable Government-wide regulations, is misplaced.

We also reject the Agency's claim that the proposal concerns classification matters which are excluded from the definition of conditions of employment by section 7103(a)(14)(B) of the Statute. Nothing in the wording of the proposal, or in the record in this case, requires the Agency to modify or change a DRT's classification. Thus, the Agency's reliance on National Park Service, is misplaced. In that case, the disputed proposal required the agency to classify certain positions for salary purposes. Nothing in Proposal 2 requires the Agency to take similar action.

As Proposal 2 requires the Agency to exercise its discretion in a manner which is not inconsistent with law or regulation, and as no other ground on which to find the proposal nonnegotiable is argued or apparent, we conclude that Proposal 2 is negotiable.

IV. Order

The petition for review as to Proposal 1 is dismissed. The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposal 2.(4)




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

1. Under 5 U.S.C. § 5303 and 5 C.F.R. § 530.301-307, the minimum rates of pay for certain employees in certain geographic areas may be increased in order to overcome impediments to the recruitment or retention of personnel.

2. In view of this decision, it is unnecessary to address the Agency's claim that the proposal concerns matters excluded from the definition of conditions of employment by section 7103(a)(14)(B) of the Statute.

3. The Agency does not contend specifically that Proposal 2 is inconsistent with a Government-wide regulation. Howeve