54:1327(113)NG - - AFGE Local 1164 and SSA, District Office, New Bedford, MA [ Massachusetts ] - - 1998 FLRAdec NG - - v54 p1327



[ v54 p1327 ]
54:1327(113)NG
The decision of the Authority follows:


54 FLRA No. 113

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1164

(Union)

and

SOCIAL SECURITY ADMINISTRATION

DISTRICT OFFICE

NEW BEDFORD, MASSACHUSETTS

(Agency)

0-NG-2258

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 22, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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).(1) The appeal concerns 11 sections of a proposed memorandum of understanding (MOU) that were submitted in response to an Agency plan to alter the method by which claims are assigned to employees for processing.(2)

For the reasons set forth below, we find that Proposal 1, Proposals 3 through 8 and Proposals 10 and 11 are electively negotiable. Accordingly, we dismiss the petition for review as to these proposals. We further find that Proposal 9 is within the duty to bargain and we direct the Agency to bargain, on request of the Union. Finally, we find that Proposal 2 does not meet the conditions governing review and we dismiss the petition for review as to that proposal.

II. Background

The Agency, the New Bedford District Office of the Social Security Administration, is responsible for accepting and processing claims for social security benefits (title 2 or T2) and supplemental security income benefits (title 16 or T16). Included in its staffing complement are title 2 claims representatives (CRs), title 16 CRs, service representatives and a field representative. CRs are responsible for interviewing individuals filing claims and "adjudicating" the claim.(3) According to the Union, the practice in existence prior to announcement of the Agency's plan, was that 50 percent of the CRs were considered available to interview claimants and the other 50 percent were considered "off interviews" on any given day.(4) Off-interview time was used to adjudicate claims.

Prior to the plan, the Agency generally followed an "alpha" system for assigning claims to CRs. That is, each CR was assigned a portion of the alphabet and was responsible for all claimants within his or her designated title whose last names fell within that portion of the alphabet. However, CRs interviewed claimants outside their "alpha" assignment when the appropriate CR was not available to service claimants who, for example, came in without appointments. When a CR interviewed a claimant outside his or her "alpha" assignment, the claim was turned over to the CR with the relevant "alpha" assignment for adjudication.

The Agency's plan altered the system of assigning claims-related duties to employees by: (1) expanding rotational, or "out of alpha," interviewing; and (2) introducing a "Keep What You Take" policy for the distribution of claims-related tasks. The plan essentially requires CRs to be available to interview at all times for the purpose of servicing claimants outside their "alpha" assignment when the appropriate CR is not available and to adjudicate to completion those claims for which they conducted the interview without regard to "alpha" assignment.

III. Analytical Framework To Be Applied In This Case

As explained more fully below, in the succeeding parts of this decision, the Agency argues that various proposals are outside the duty to bargain because of their effect on the exercise of management's rights under section 7106(a) of the Statute. The Union, on the other hand, disputes the Agency's contention. The Union argues that the proposals are within the duty to bargain because they involve matters under section 7106(b)(1), section 7106(b)(2) and/or section 7106(b)(3) of the Statute.(5)

In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 178 (1998) (HUD Council of Locals), the Authority held that in cases where a union both disputes an agency's assertion that a proposal affects management's rights under section 7106(a) of the Statute, and asserts that the proposal is negotiable under section 7106(b), the Authority will first address whether the proposal affects those 7106(a) rights. If the proposal does not affect management's rights under section 7106(a), or if it constitutes a procedure or an appropriate arrangement within the meaning of section 7106(b)(2) or (b)(3), respectively, then the Authority will direct the parties to bargain over that proposal. Id. However, if the Authority finds that the proposal affects management's rights under section 7106(a), and does not constitute a (b)(2) or (b)(3) matter, then the Authority will address whether the proposal concerns matters encompassed within section 7106(b)(1) of the Statute. Id. If the proposal concerns matters negotiable at the agency's election under section 7106(b)(1), then the Authority will dismiss the petition for review. See, e.g., American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1495 (1997).

As the Union in this case disputes the Agency's contention that the proposal affects management's rights and asserts that the proposals are negotiable under section 7106(b)(1), we apply the HUD Council of Locals analysis herein.(6)

IV. Proposal 1

Article II, Section 1.D.

It is both parties' intent to maintain a balance between CR [claims representative] unit workloads. The parties agree that when a unit exceeds more than 10% of the original breakdown percentages, it will be considered out of balance. Management will make every reasonable effort to provide additional off-interviewing time (see Section II, below) or other mutually acceptable means to allow employees to regain unit balances and adjudicate their workloads.

A. Positions of the Parties

1. Agency's Position

The Agency claims that the proposal affects its right to assign work under section 7106(a)(2)(A) and (B) of the Statute.(7)

2. Union's Position

The Union states that the proposal does not "directly or excessively interfere" with the right to assign work under section 7106(a)(2)(B). According to the Union, the proposal "is intended to provide an orderly schedule of off-interview time in order to promote timely processing of claims." Petition for Review, Attachment at 1. The Union further states that the proposal is an appropriate arrangement for employees burdened with an increase in workload.

B. Analysis and Conclusions

1. Meaning of the Proposal

This proposal defines when a workload is considered "out of balance." When that situation occurs, the proposal would require the Agency to "make every reasonable effort" to provide off-interview time or other "mutually acceptable means" to enable employees to regain a balance in their workloads and to be able to adjudicate their workloads. The reference in the proposal to "Section II, below" is a reference to Article II, Section II, portions of which are in dispute. Those disputed portions are denominated as Proposals 3-7 and are incorporated into Proposal 1. As such, the negotiability of Proposal 1 must be assessed in terms of the requirements of Proposals 3-7.

2. Proposal 1 Affects Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996).

Among other things, Proposal 1 would require the Agency to make every reasonable effort to provide employees with off-interview time as set forth in Proposals 3-7. Those proposals, discussed in greater detail, infra, in whole or in part, provide off-interview time for various claims representatives. Off-interview time is defined as time during which CRs do not interview claimants, even though the office is open to the public. It is clear that an employee who is on off-interview time is unavailable to conduct claimant interviews. Proposal 1 affects the right to assign work because, by providing for off-interview time, the proposal would prevent the Agency from assigning the task of claimant interviews. Further, when employees are on off-interview time, and therefore unavailable to perform claimant interviews, management would have to assign such duties to other employees.

The fact that the proposal requires the Agency to "make every reasonable effort" to provide off-interview time does not alter the fact that the proposal affects the right to assign work. Authority precedent holds that proposals or provisions that require an agency to make reasonable efforts to assign particular work to an employee "directly interfere" with management's right to assign work. See, e.g., 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). See also American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Oceanside, California, 49 FLRA 279 (1994) (SSA, Oceanside) (second sentence of Provision 3, requiring 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, directly interfered with management's exercise of its right to assign work); Overseas Education Association and Department of Defense, Dependents Schools, 39 FLRA 153, 175-76 (1991) (DODDS) (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).

3. Proposal 1 Does Not Constitute an Appropriate Arrangement Under Section 7106(b)(3) of the Statute

The approach for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that approach, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). See also American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 141 (1995). The adverse effect need not flow from the management right that a given proposal affects. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part) (PTO).

The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management's right(s). See, e.g., id. As the Authority reaffirmed, relying on United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996). That section of the Statute does not bring within the duty to bargain proposals that are so broad in their sweep that the "balm" would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer, or has suffered, adverse effects as a consequence of management action under section 7106. Id. See also PTO, 49 FLRA at 184.

If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.

In this case, the Union argues simply that Proposal 1 "is an appropriate arrangement when raised in the context of providing for workers burdened with significantly increased (over 10%) claims workloads and well within the scope of bargaining." Response at 2. The Union does not explain, however, what adverse effects flow from, or are likely to flow from, the Agency's plan to require that CRs be available to interview claimants and adjudicate claims outside the "alpha" assignment. Instead, the Union submits undated and unsigned statements from employees in support of its claim. These statements reflect general dissatisfaction with the Agency's proposed plan. For the most part, they speculate that there will be an increase in workload, frustration, confusion as to which CR has provided previous service to a claimant, and reduced levels of service to the public. One employee addressed prior difficulties in requesting additional time for adjudication purposes, and one employee speculated that an additional workload might result in mandatory overtime.

Even considering these individual and collective responses, we find that the Union has failed to establish how its proposal would mitigate the adverse effects flowing from the exercise of management's rights. It is unclear from the record whether the increased availability of CRs for claimant interviews would result in an increase in workload or simply a redistribution of a fixed workload. Thus, although CRs likely would be assigned to interview and adjudicate claims outside their alpha designation under the Agency's plan, since the plan would apply to all CRs, it stands to reason that there would actually be a redistribution of the existing workload. Even if there were an increase in the workload for some employees, the Union has not established that the proposal is tailored to address those employees. The references to possible overtime and difficulties in requesting adjudication time are, without more, either speculative or relate to a previous work situation and not to the Agency's plan.

Accordingly, we find that the Union has failed to establish that the proposal is an arrangement under the first prong of the KANG standard. See SSA, Oceanside, 49 FLRA at 291, 295 (union failed to show what adverse consequences would flow from unequal distribution or loss of adjudication time). In view of this result, there is no need to address the second prong of the KANG standard.

V. Proposal 2 (8)

Article II. Section 1.F.

The parties acknowledge that CRs performing multilingual duties may incorporate an additional interviewing workload. Management will make every reasonable effort to ensure multilingual CRs in New Bedford are not assigned a disproportionate number of interviews or other work to process. This may include additional off time or temporary removal from the out of alpha rotation. Management also agrees to apply, in good faith, the provisions of Article 38 of the contract.

A. Positions of the Parties

1. Agency's Position

The Agency cites U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993), for the holding that there is no obligation to bargain over matters that are contained in or covered by existing agreement provisions. The Agency argues that Article 38 of the parties' collective bargaining agreement expressly addresses the impact of multilingual duties on employees, which is the subject of Proposal 2. As such, the Agency argues that the petition for review with respect to this proposal must be dismissed "because the issue is not one of negotiability, but one of whether a duty to bargain exists." Statement of Position at 4.

2. Union's Position

The Union maintains that the proposal does not mandate "'additional' off time or any other management action regarding assignment of work." Petition for Review, Attachment at 2. The Union explains that there is a multi-lingual claimant population and that the proposal is an appropriate arrangement for employees who may face larger workloads. In response to the Agency's claimed application of Article 38, the Union states that use of the agreement to bar a "tailor made solution to the unique problems in New Bedford is both illogical and discriminatory." Response at 3.

B. Analysis and Conclusions

1. Meaning of the Proposal

Proposal 2 addresses the assignment of additional interviews to multilingual claims representatives.

2. The Conditions Governing Review of Proposal 2 Have Not Been Met

Under section 2424.1 of the Authority's Regulations, the Authority will consider a petition for review only where the parties are in dispute over whether a proposal is inconsistent with law, rule or regulation. The Agency makes no claim that the proposal is inconsistent with law, rule or regulation under section 7117(a)(1) of the Statute. It makes only a "covered by" argument.

We find that the petition for review as to Proposal 2 does not meet the conditions governing review and must be dismissed. See, e.g., Professional Airways Systems Specialist, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 53 FLRA 1246, 1248-49 (1998) (agency did not allege that amended proposal was inconsistent with law, rule or regulation); National Federation of Federal Employees, Local 2079 and U.S. Department of Agriculture, Forest Service, Umpqua National Forest, Roseburg, Oregon, 49 FLRA 396, 396-97 (1994) (agency claimed only that union waived its right to bargain). The dismissal is without prejudice to the Union's right to file an appeal if the conditions governing review are met.(9)

VI. Proposal 3-7 (10)

Proposal 3 - Article II. Section II.A.

New Bedford T2 (Title 2) and TXVI (Title 16) CRs will be afforded off interviewing time to promote accurate claims and P/E (Post Entitlement) decisions and to process assigned workloads in an orderly fashion.

Proposal 4 - Article II. Section II.B.

Each T2 and TXVI CR in the New Bedford District office electing to work a flex-time schedule shall be afforded one day of off interviewing time per week. Each T2 and TXVI CR electing to work a Compressed Work Schedule (CWS) shall be afforded one day of off interviewing time per pay period. CWS off interviewing days will not coincide with CWS off duty days. CRs on off interviewing days will not be responsible for taking in office interviews, except as delineated in Section II, C through F, below.

Proposal 5 - Article II. Sections II.C. & D. (11)

C. The parties agree to maintain a rotational schedule for interviewing duty. The schedule will be prepared monthly. Assuming current staffing levels, every Monday one T2 CR and one TXVI CR shall be designated as off interviews. Each Tuesday through Friday, two CRs from each Title will be designated as off interviews. Off interviewing CRs will not schedule in office claims or PE appointments on their off days.

D. Off interviewing schedules will rotate such that individual CRs do not have the same day off each week.

Proposal 6 - Article II. Section II.E.

Management will make every reasonable effort to honor the off interviewing assignments. If the parties agree, by consensus, that there is a demonstrable need for more interviewers, CRs on off interviewing duty may be assigned individual interviews until such need has abated. Each day, the off interviewing CRs shall be designated #1 or 2, as appropriate. Should interview assignment be necessary as described above, interviews will be assigned in rotation. Should a CR be required to interview during an off interview day, every effort will be made to make up that time within two (2) weeks. A log will be established to record lost time on days off interviewing and credit will be annotated in the log.

Proposal 7 - Article II. Section II.F.

The above off interviewing procedures will apply except on those days when the total number of CRs on duty is equal to 50% of total CR staff, or less. The terms of this agreement will not alter current leave practices in the office, nor does this MOU indicate the Union's agreement with current leave policies.

A. Positions of the Parties

1. Agency's Position

The Agency claims that these proposals affect management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute and do not constitute appropriate arrangements.

2. Union's Position

The Union disagrees with the Agency's management's right claim. More particularly, as to Proposal 3, the Union states that providing off-interview time will promote accurate claims and post-entitlement decisions and allow workloads to be processed in an orderly fashion. The Union adds that current office policy provides for "Quiet Time" during the day. Petition for Review, Attachment at 3. As to Proposal 4, the Union indicates that it "fairly and equitably allows for the appropriate number of individuals to receive off-interviewing time while preserving a more than adequate base of interviewing staff." Id. at 4.

The Union states that Proposals 3, 4 and 5 "should properly be classified as procedural." Response at 3. The Union explains that "rotational proposals are negotiable where less than a full workforce is needed to perform duties essential to the mission of the agency[.]" Id. at 3-4. The Union notes that, since the number of potential interviewers exceeds the number of available interviewing work stations, "[t]here is no physical way for all . . . interviewers to simultaneously interview." Id. at 4. Proposal 6, in the Union's view, is a "procedural proposal" and sets forth an orderly system of interview assignments should the need arise to assign a CR who is off-interview "to assist with heavier than normal interviewing." Response at 4; Petition for Review, Attachment at 6. The Union also claims that these proposals constitute negotiable appropriate arrangements. More particularly, as to Proposals 3, 4 and 5, the Union argues that "[g]iven the negligible effect on management's ability to assign interviews . . . permitting off interview time is an appropriate arrangement under 5 USC 7106(b)(3)." Response at 4.

The Union explains that Proposal 7 suspends the off-interview procedures until staff depletion, caused by such situations as vacations, is corrected. The Union claims that the proposal "acknowledges management's right to assign work[,]" and gives management "maximum flexibility when leave or other staffing emergencies occur." Response at 5. The Union makes no claim that Proposal 7 is within the duty to bargain under sections 7106(b)(2) or 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. Meaning of the Proposals

Proposal 3 requires the Agency to provide T2 and T16 claims representatives with off-interview time. Proposal 4 requires the Agency to provide one day of off-interviewing time per week for employees who are on either a flex-time or compressed work schedule. Proposal 4 also allows for the assignment of interviews in accordance with Proposals 5-7.

Proposal 5 establishes a rotational schedule for "interviewing duty[,]" which includes designated off-interview days for T2 and T16 claims representatives. Proposal 6 requires management to make every reasonable effort to honor the off-interviewing assignments, and allows the parties to agree on assigning interviews to claims representatives who are on off-interview days. Proposal 6 also provides for the rotational assignment of interviews and permits claims representatives to make up any lost off-interview time. Proposal 7 provides that the "off interviewing procedures" will apply unless the total number of claims representatives on duty on any given day is equal to or less than 50 percent of the total complement of claims representatives. Proposal 7 further provides for the continuation of current leave practices in the office.

2. The Proposals Affect the Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

As stated in connection with Proposal 1, the right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine who will perform work and when that work will be performed. We find that Proposals 3-6 affect the right to assign work by requiring the Agency to provide off-interview time to employees, thereby preventing the assignment of work during that time. More particularly as to Proposal 3, which the Union claims is essentially consistent with current office policy, there is no basis on which to reach a different result. The Authority has explained that "[p]rovisions that are nonnegotiable because of interference with a management right do not become negotiable because they simply restate an existing agency policy or practice." American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1503 (1993).

Proposal 7 similarly affects the right to assign work. Although the proposal provides, in relevant part, for the suspension of off-interview time, it expressly requires that the "above off-interview procedures will apply" unless a prescribed percentage of CRs is not on duty on any given day. In other words, the proposal mandates the use of off-interview time when the complement of CRs is above the percentage prescribed by the Union in the proposal.

In view of our finding that the proposals affect the right to assign work, there is no need to address whether the proposals also affect the right to direct employees under section 7106(a)(2)(A), as the Agency claims.

3. Proposals 3, 4 and 5 Do Not Constitute Negotiable Procedures Under Section 7106(b)(2) of the Statute; the Bare Assertion that Proposal 6 Is a Negotiable Procedure Is Not Considered

The Union states, as to Proposals 3, 4 and 5, that "proposal[s] to afford off interviewing time for CRs should properly be classified as procedural[.]" Response at 3. The Union also states that "rotational proposals are negotiable where less than a full workforce is needed to perform duties essential to the mission of the agency[.]" Id. at 3-4. In support, the Union cites Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651 (1988) (SSA, Baltimore) and National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56 (1986).

Neither Proposal 3 nor Proposal 4 expressly addresses rotational assignments. Instead, they each require the Agency to provide off-interviewing time for both T2 and T16 claims representatives. The Union provides no explanation for its view that providing off-interviewing time is, in and of itself, procedural. Rather, Authority precedent holds that proposals requiring the grant of adjudication time, which, as relevant here, is comparable to off-interview time, affect the right to assign work. See, e.g., SSA, Oceanside, 49 FLRA at 292-94 (Provision 4, which established goal of providing one day of adjudication time per week for employees, held to directly interfere with right to assign work). Cf. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland et al., 41 FLRA 1309 (1991) (SSA) (agency failed to establish that Proposals 12 and 13, requiring rotation of CRs to perform call-backs on a daily basis and establishing fixed roster based on seniority, directly interfered with right to assign work); SSA, Baltimore, 31 FLRA 651 (daily rotation of service representatives to staff account number window and assigning desk clerks to sit at designated desk on a rotational basis did not directly interfere with right to assign work). Authority precedent further holds that proposals or provisions that "directly interfere" with the exercise of management's rights under section 7106(a) do not constitute negotiable procedures. See, e.g., National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1188 (1991).(12) Applying that precedent here, we find that Proposals 3 and 4 do not constitute negotiable procedures under section 7106(b)(2) of the Statute.

Proposal 5, on the other hand, expressly refers to a rotational schedule that the parties would agree to maintain for interviewing duty. Nonetheless, it would require the Agency to provide off-interview time. As such, the proposal affects the right to assign work and does not constitute a negotiable procedure for the same reason as Proposals 3 and 4. The cases on which the Union relies do not compel a different result. In neither case was the agency prevented from assigning work to employees at particular times or days, which is the effect of requiring the Agency to provide off-interview time in this case. Instead, the cases involved the use of rotational work assignments among equally qualified employees or the use of seniority on a rotating basis to determine annual leave scheduling. Accordingly, we find that Proposal 5 is not a negotiable procedure within the meaning of section 7106(b)(2).

As to Proposal 6, the Union offers no argument or authority to support its assertion that the proposal is a "procedural proposal . . . ." Response at 6. The precedent on which it relies, DODDS, 39 FLRA at 153, is cited for the proposition that proposals requiring an agency to make reasonable efforts to undertake various actions can constitute appropriate arrangements under section 7106(b)(3). The Authority previously has stated that where a union offers no arguments or authority to support a bare assertion that a particular proposal is within the duty to bargain under section 7106(b)(2) of the Statute, the Authority does not consider the assertion. See American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513-14 (1996) (Defense Contract Audit Agency) (Authority rejected a union's bare assertion that a proposal was a negotiable procedure under section 7106(b)(2)). We reach the same result here with respect to Proposal 6.

4. Proposals 3, 4, 5 and 6 Do Not Constitute Appropriate Arrangements Under Section 7106(b)(3) of the Statute

The Union does not describe in what manner the proposals are intended to mitigate the adverse effects of the Agency's plan. Accordingly, we find that the Union has failed to establish that these proposals are within the duty to bargain as appropriate arrangements under section 7106(b)(3) of the Statute.

VII. Proposal 8

Article II. Section III.A.

On a daily basis, in office interviews will be distributed to the alpha unit T2 or TXVI CRs on interviewing duty to the extent possible. The Service Representative working at reception will prepare a pink slip for each interview and post on the interviewing board. In addition, the Service Representative will page the CR and turn on the light for the appropriate alpha unit CR. Interviews will be held for thirty minutes (30) for alpha CRs. If the alpha CR is not available after the claimant has waited thirty (30) minutes, the interview will be handled in accordance with B through D, below.

A. Positions of the Parties

1. Agency's Position

The Agency argues that the proposal affects the rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute.

2. Union's Position

The Union states that the proposal's use of the phrase "Service Representative working at reception" is an accurate description of the work environment and does not "violate" any management rights. Petition for Review, Attachment at 8. The Union also states that the 30-minute time frame restates current policy. The Union adds that the proposal "represents a rotational agreement to cover when employees will perform [an] already assigned duty[.]" Response at 5.

B. Analysis and Conclusions

1. Meaning of the Proposal

Under Proposal 8, "in office" interviews are distributed to "alpha unit" T2 and T16 CRs to the extent possible, on a daily basis. Interviews are "held" for 30 minutes awaiting the availability of an alpha CR. If a claimant has not been interviewed within 30 minutes, the interview is handled in accordance with "B through D, below." The latter is an apparent reference to Article II, Sections B, C and D, of which Sections B and D are in dispute as Proposal 9 and Proposal 10.(13) Proposal 8 also describes certain tasks to be performed by service representatives.

2. The Proposal Affects the Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

Among other things, Proposal 8 prescribes the length of time that the Agency must wait before it can assign a representative to interview a claimant. As we stated in connection with Proposal 1, the right to assign work under section 7106(a)(2)(B) encompasses the right to determine when work assignments will occur. By requiring the Agency to wait for a period of 30 minutes before assigning claimant interviews, the proposal would effectively prevent the assignment of interviewing duties for a prescribed period of time. The Union argues that the proposal simply restates the existing practice of 30-minute interviews. However, as we stated in connection with Proposal 3, a proposal that simply restates an existing agency policy or practice is not thereby transformed into a negotiable proposal. Since Proposal 8 would determine when the work of conducting claimant interviews could be performed, the proposal affects the right to assign work.

Given this determination, there is no need to address whether the proposal also affects the right to direct employees under section 7106(a)(2)(A), as the Agency claims. As the Union makes no explicit claim that the proposal is either a negotiable procedure or an appropriate arrangement, we conclude that the proposal is outside the duty to bargain.

VIII. Proposal 9 (14)

Article II. Section III.B.

Out of alpha interviews will be taken by interviewing CRs on a rotational basis, with each CR designated by number. On a daily basis, management will make up a log of available Claims Representatives to be maintained for out of alpha interview assignments. Each time a CR takes an out of alpha interview, they will check their name off in the log. The order for out of alpha interview assignments will be in sequence, continuing from one day to the next, e.g. if CR #5 takes the last out of alpha interview on Monday, CR #6 will take the first out of alpha interview on Tuesday. CRs absent on the preceding day will b[e] placed at the end of the previous day's rotation (refer to attached Exhibit 1).

A. Positions of the Parties

1. Agency's Position

The Agency argues that the proposal is outside the duty to bargain under sections 7106(a)(2)(A) and (B) of the Statute because it would assign specific duties to identified individuals.

2. Union's Position

The Union maintains that the proposal describes a basic sequence that claims representatives will follow when working out of alpha interview assignments. The Union adds that the proposal does not involve management's right to assign work or prevent management from exercising that right. Instead, the Union argues that the proposal calls for an equitable distribution of work among qualified CRs on a rotational basis. In support, the Union cites SSA, 41 FLRA 1309 and SSA, Baltimore, 31 FLRA 651. In addition, the Union asserts that it wants a rotational log maintained in order to monitor rotational interviewing.

B. Analysis and Conclusions

1. Meaning of the Proposal

Proposal 9 sets forth a rotational system of assigning interviews to CRs "[o]ut of alpha." Under this system, a log is maintained by management, on a daily basis, and each CR who conducts an interview is placed at the bottom of the rotation. Absent employees are placed at the end of the previous day's rotation.

2. The Proposal Does Not Affect Management's Rights

The Agency's argument is limited to an assertion that the proposal "assigns specific duties to identified individuals." Statement of Position at 9. The Agency adds that the Authority has often found that proposals assigning specific duties to identified individuals "directly interfere" with the right to assign work under section 7106(a)(2)(B). By way of example, the Agency cites American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson et al., 48 FLRA 168, 176-77 (1993) (Fort Carson).

It is unclear whether the Agency objects to the portion of the proposal requiring "management [to] make up a log" or to other portions of the proposal that simply state what CRs are expected to do. In either event, the Agency's argument does not establish that the proposal impermissibly affects the rights to direct employees and assign work.

Nothing in the proposal specifies the particular management official who will prepare the log. The Authority has held that proposals that allow an agency to choose who in its supervisory or managerial structure will be assigned certain responsibilities do not implicate the exercise of management's rights. See Fort Carson, 48 FLRA at 173. Proposal 9 is, thus, consistent with this precedent. It is distinguishable from the proposal in Fort Carson, 48 FLRA at 176-77, cited by the Agency, in which the union sought to require the employees' immediate supervisors, i.e., specific individuals, to perform a designated task.

Similarly, nothing in Proposal 9 prevents the Agency from assigning the task of interviewing claimants. The Authority has held that the assignment of duties to equally qualified employees does not affect the exercise of management's right to assign work. See, e.g., SSA, 41 FLRA 1309, 1320 (Proposals 12 and 13, requiring rotation of CRs to perform call-backs on a daily basis and establishing fixed roster based on seniority); SSA, Hartford, 31 FLRA 651 (daily rotation of service representatives to staff account number window and assigning desk clerks to sit as designated desk on a rotational basis). There is no contention that the CRs are not equally qualified to perform the designated task of claimant interviews.

We further find no basis on which to conclude that the proposal affects the right to direct employees under section 7106(a)(2)(A), as the Agency claims. "[T]he right to direct employees [within the meaning of section 7106(a)(2)(A) of the Statute] means to 'supervise and guide [employees] in the performance of their duties on the job.'" Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 834 (1991) (POPA) (quoting National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd, 691 F.2d 553 (D.C. Cir. 1982)). Thus, the right to direct employees is exercised through supervising employees and determining the quantity, quality and timeliness of work production and establishing priorities for its accomplishment. Proposal 9 does not pertain to the matters encompassed within the right to direct employees under section 7106(a)(2)(A).

In sum, we find that Proposal 9 is within the duty to bargain.

IX. Proposal 10 (15)

Article II. Section III.D.

A CR conducting an out of alpha interview claim interview will process the claim to completion if all necessary proofs are in file at the time the interview is completed. The interviewing CR will place their own unit designation on the completed claim. If additional proofs or contact are required, the interviewing CR will request those proofs, properly annotate the file, make any necessary computer inputs and return the file to the alpha unit CR. For PE out-of-alpha interviews, the interviewing CR will request any proofs, properly annotate the file, make any necessary computer inputs and return the file to the alpha CR.

A. Positions of the Parties

1. Agency's Position

The Agency asserts that the proposal is outside the duty to bargain under sections 7106(a)(2)(A) and (B) of the Statute.

2. Union's Position

The Union contends that the proposal describes current procedures and would provide an orderly and efficient work process. The Union adds that the proposal "is procedural, indicating how already assigned work will be processed." Response at 6. In its petition for review, the Union also states, when describing Proposal 10 together with Proposal 11, the latter of which is discussed below, that there is no direct or excessive interference with management's rights. In its reply brief, however, the Union's arguments focus only on the procedural aspects of the proposal in terms of the effect on the exercise of management's rights.

B. Analysis and Conclusions

1. Meaning of the Proposal

Proposal 10 describes the circumstances under which a claims representative will process an "out of alpha" interview, namely, when "all necessary proofs are in file at the time the interview is completed." The proposal also describes what CRs must do if "additional proofs or contact" are required and what CRs must do for "PE out-of-alpha interviews."

2. The Proposal Affects the Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

Proposal 10 identifies various duties that claims representatives must perform while processing interviews. For the reasons stated in connection with Proposal 1 and Proposals 3 through 7, we find that Proposal 10 affects the exercise of management's right to assign work under section 7106(a)(2)(B). Also, as was stated in connection with Proposals 3 and 8, a proposal does not come within the duty to bargain simply because it restates an existing practice. Consequently, the Union's statement that the proposal describes current procedures does not provide a basis for finding that the proposal is within the duty to bargain.

In view of our finding that the proposal affects the right to assign work, there is no need to address the Agency's section 7106(a)(2)(A) claim.

3. The Union's Bare Assertions Under Sections 7106(b)(2) and 7106(b)(3)

The Authority has previously stated that where a union offers no arguments or authority to support its bare assertion that a particular proposal is within the duty to bargain under section 7106(b)(2) of the Statute, the Authority does not consider the assertion. See discussion of Proposal 6, supra. As to Proposal 10, the Union states only that the proposal is procedural. Consistent with our precedent, we do not address this claim.

The Authority has also stated that where a union offers no arguments or authority to support its bare assertion that a particular proposal is within the duty to bargain under section 7106(b)(3), the assertion will not be considered. See, e.g., American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1317 (1996) (Authority determined that because the union did not explain, and the proposal did not speak to, the manner in which a disputed portion would address adversely affected employees, that portion did not constitute an arrangement under section 7106(b)(3)). It is not clear whether the Union has raised a claim under section 7106(b)(3) as to Proposal 10. Even assuming that it has, we do not address the bare assertion, consistent with our precedent.

X. Proposal 11

Article II. Section III.F.

Management will keep a continuing log chronicling the total number of interviews taken by each CR in the office, to ensure that interviews are distributed fairly and equitably. Management will also maintain pink slips and records of teleclaims. Management agrees to provide additional off-interviewing time or other mutually acceptable means to maintain interviewing balance. [Only the underscored portion of the proposal is in dispute.]

A. Positions of the Parties

1. Agency's Position

The Agency argues that the underscored portion of the proposal is outside the duty to bargain under sections 7106(a)(2)(A) and (B) of the Statute.

2. Union's Position

The Union maintains that the proposal would provide an orderly and efficient work process and that there is no direct or excessive interference with management's rights since management is only obligated to consider off-interview time or another mutually accepted means to equalize the workload. The Union further claims that the proposal "is an appropriate arrangement for the likely scenario where interviews are not balanced." Response at 6. The Union explains that "[v]acation, prolonged illness, details, etc. will likely result in situations where some CRs must interview significantly more than others over a period of time." Id.

B. Analysis and Conclusions

1. Meaning of the Proposal

The disputed portion of the proposal requires management to agree to provide additional off-interviewing time or other means that are acceptable to the parties "to maintain interviewing balance."

2. The Proposal Affects the Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

Like Proposal 1, Proposal 11 would require the Agency to provide additional off-interview time or some other means of maintaining a balance in the workload. Proposal 11 similarly affects the right to assign work because it would prevent the Agency from assigning the task of conducting claimant interviews to CRs during the time that these employees would be off-interview.

3. The Proposal Is Not an Appropriate Arrangement Under Section 7106(b)(3)

We find that the Union has failed to establish that the proposal satisfies the first prong of the KANG standard. Even if we were to assume that, on occasion, some employees would bear a disproportionate share of the interviewing workload, and that the proposal is intended to provide additional off-interview time during which employees could adjudicate their increased workload, the proposal is not limited only to those employees. Thus, the proposal is insufficiently tailored to constitute an arrangement. Given this result, there is no need to address the second prong of the KANG standard.

XI. Proposals 1, 3, 4, 5, 6, 7, 8, 10 and 11 Are Electively Negotiable Under Section 7106(b)(1) of the Statute (16)

The Union asserts that these proposals relate to the numbers, types and grades of employees assigned to an organizational subdivision or work project and/or the methods and means of performing work under section 7106(b)(1) of the Statute.

Under section 7106(b)(1), proposals relating to the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty," are negotiable at the election of the agency. This phrase in section 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030-31 (1997) (holding that a proposal requiring the Agency to assign dental assistant's duties to dental hygienists concerned the numbers, types and grades of employees within the meaning of section 7106(b)(1)). The determination of how many and what type of positions will be assigned to an organizational subdivision concerns the allocation of staff. See National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 432-33 (1997) (holding that a proposal requiring bilateral agreement concerning the number of employees or positions assigned to an organizational subdivision, work project or tour of duty comes within the scope of section 7106(b)(1), regardless of whether the proposal would increase, decrease, or maintain the number that the agency proposes to assign or has assigned).

Also under section 7106(b)(1), and as relevant here, proposals relating to the methods and means of performing work are negotiable at the election of an agency. The Authority has construed "method" to refer to "the way in which an agency performs its work." See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 818 (1996). The Authority has construed "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id. The Authority employs a two-part test to determine whether a proposal interferes with management's right to determine the methods and means of performing work.(17) First, the agency must show a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposals would directly interfere with the mission-related purpose for which the method or means was adopted. See National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Region V, Walnut Creek, California, 41 FLRA 1195, 1202 (1991).

The Agency states that its mission "is to administer Retirement, Survivor, Disability, Medicare and Supplemental Security entitlement programs for the public." Statement of Position at 1. The Agency's plan was designed to change the method of performing its work in order to fulfill that mission. In particular, the Agency determined that an expanded rotational assignment of claims processing and a "keep what you take" policy would better serve its clientele and administer its various programs, by providing for same-day service whenever possible. In our view, the Agency has shown a direct and integral relationship between its plan for expanded rotational and "keep what you take" assignments and the accomplishment of its mission. The Union's proposals would essentially limit the availability of claims representatives to perform claimant interviews or otherwise adjudicate claims outside the "out of alpha" assignment system. As such, they directly interfere with the mission-related purpose for which the Agency's plan was adopted.

Accordingly, applying Authority precedent, we find that the proposals constitute matters regarding the methods and means of performing work under section 7106(b)(1) of the Statute. Therefore, the proposals are bargainable only at the election of the Agency under section 7106(b)(1). Consistent with section 2424.10 of the Authority's Regulations, we dismiss the petition for review as to these proposals.(18) See Department of Energy, 54 FLRA at 653.

XII. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate with respect to Proposal 9.(19) We dismiss the petition for review as to Proposal 2, because it does not meet the conditions governing review. We also dismiss the petition for review as to Proposals 1, 3, 4, 5, 6, 7, 8, 10 and 11, which are electively negotiable under section 7106(b)(1) of the Statute.




FOOTNOTES:
 

1. The Union noted that it had filed an unfair labor practice charge regarding the Agency's implementation of rotational interviewing. It has elected to proceed with the negotiability appeal first.

2. Each section is denominated as a separate proposal.

3. According to the Union, "adjudication" entails determining whether a claimant meets all documentation and legal requirements and the amount of any benefit due. Petition for Review, Attachment entitled "Definitions" at 1.

4. Off-interview time is defined as a "Block of time, usually assigned per week, where a T2 or T16 CR does not have to interview during hours the district office is open to the public. This time is spent in adjudication of claims." Petition for Review, Attachment entitled "Definitions" at 1.

5. In response to an Authority order, the Union filed a supplemental submission addressing the applicability of National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995). The Agency did not file a supplemental submission.

6. For convenience, the 7106(b)(1) claims are addressed in Part XI of this decision.

7. Although the Agency cites two sections of the Statute, it is clear that its arguments are solely directed to the assignment of work under section 7106(a)(2)(B). Given our finding below, that the proposal affects the exercise of that right, there is no need to address the merits of the 7106(a)(2)(A) claim, even if properly raised.

8. The proposal references Article 38 of the parties' agreement which provides:

Management will continue to give consideration to multilingual employees for details, reassignments, leave approval, hours of work or