American Federation of Government Employees, Local 1164 and Social Security Administration, Lawrence, Massachusetts

[ v55 p999 ]

55 FLRA No. 163

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1164
(Union)

and

SOCIAL SECURITY ADMINISTRATION
LAWRENCE, MASSACHUSETTS
(Agency)

0-NG-2452

_______

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

September 30, 1999

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 petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review concerns four proposals.

      For the reasons that follow, we find that the proposals are negotiable at the Agency's election under section 7106(b)(1) of the Statute. Accordingly, we dismiss the petition, pursuant to section 2424.10 of the Authority's Regulations. [n1] 

II.     Background

      The Lawrence, Massachusetts, field office of the Social Security Administration (Agency) is responsible for accepting and processing claims for social security benefits (i.e., title 2) and supplemental security income benefits (i.e., title 16). The office is staffed by 18 Claims Representatives (CRs) and five Service Representatives (SRs). At the time of the negotiations relevant to this case, the 18 CRs were divided equally, with nine specializing in processing title 2 claims and the other nine specializing in title 16 claims. On any given day, 11 CRs would be assigned to interview members of the public, with five of the 11 being title 2 specialists and the remaining six being title 16 specialists. The remaining seven CRs who were not interviewing would process pending claims, or fill in for SRs as needed at the reception desk.

      Of the five SRs, typically on any given day, one would be assigned to handle public inquiries at the reception desk; two would respond to public inquiries over the office's three "general inquiry" telephone lines; one would handle interviews of members of the public at the reception counter on post-entitlement issues (referred to as the "rapid interviewing person," or RIP); and the remaining SR would serve as back-up in case of an absentee.

      The Union made proposals in response to the Agency's decision to phase in "generalization of duties" for CRs, that is, to eliminate the specialization for some, but not all, CRs as to title 2 and title 16 claims. Statement of Position at 1.

III.     Proposals

Proposal 1
For a trial period of two (2) months, five (5) [title 2] CRs and five (5) [title 16] CRs will be assigned as primary interviewers. At the conclusion of the trial period the parties will meet and consult over whether to continue this interviewing arrangement, or to revert back to the prior assigned numbers (5 [title 2] and 6 [title 16]).
Proposal 2
The [title 2] CR will be responsible for full development of [title 2] cases and medical forms for concurrent cases, assembling the DDS file and printing the [title 2] TDTR. If careful screening indicates [title 16] eligibility seems to exist, the [title 2] CR will cross the interview over to the next available [title 16] CR. Claims where [title 2] insured status is not met are not considered concurrent claims[n2] 
The [title 16] CR will complete full application screens, relevant SSI forms, medical forms (For [ v55 p1000 ] [title 16] only cases), request necessary proofs and print the [title 16] TDTR. If after careful screening, [title 2] eligibility seems to exist, the interview will be crossed over to the next available [title 2] CR.
Proposal 3
SRs will rotate coverage of reception (REC), the two (2) General Inquiry phone lines (PHO), RIP, and BUR (back up) in a fair and equitable manner.
Proposal 4
Both parties are in agreement with the Keep What You Take (KWYT) policy per the attached workflow memorandum . . . . [n3] 

IV.     Preliminary Issues

A.     The Union Does Not Contest That Its Proposals Interfere With the Exercise of Section 7106(a) Management Rights

      The Union does not dispute the Agency's assertion that all of the Union's proposals interfere with the exercise of management's section 7106(a) rights to assign work and assign employees. Rather, the Union argues only that its proposals are negotiable under section 7106(b)(1), (2) and (3) of the Statute. [n4] 

B.     The Union Makes Only "Bare Assertions" That Proposals 1, 2, and 4 Are Negotiable Procedures Under Section 7106(b)(2) of the Statute

      As to the Union's claim that Proposals 1, 2, and 4 are procedures under section 7106(b)(2) [n5] , there is a threshold issue as to whether the Union has made more than a "bare assertion" that its proposals are procedures under section 7106(b)(2). The Authority has held that it will not consider a union's argument under section 7106(b)(2) if it consists of nothing more than a "bare assertion."

      The Union's section 7106(b)(2) references are little more than mention of the word "procedure." They are not supported by any argument, citations, or explanations. For example, the Union says only that Proposal 1 is "a negotiable procedure" (Petition for Review at 6; Response at 8). It says only that Proposal 2 is a "reasoned procedure for interviewing claimants," and is intended to "clarify procedure" (Petition for Review at 6; Response at 9). As to Proposal 4, the Union merely references the arguments it made in connection with Proposal 2 (Petition for Review at 8). Such wholly unsubstantiated allegations have previously been held to be "bare assertions" that the Authority will not address on the merits. VA Newington, 54 FLRA at 528; see also 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). Accordingly, we do not address further the Union's claims that Proposals 1, 2 and 4 constitute procedures.

V.     The Union's Proposals Do Not Constitute Appropriate Arrangements Under Section 7106(b)(3) of the Statute

A.     Proposal 1

1.     Meaning of the Proposal

      Proposal 1 would require that, for a trial period of 2 months, five title 2 and five title 16 CRs be assigned to primary interviewing. At the end of the 2 month trial period, the parties would meet and consult over whether to continue under the proposal, or revert to the previous numbers of interviewers. The Union explains that the equalization of title 2 and title 16 CRs would allow title 16 CRs more desk time to process cases, as opposed to interviewing new claimants. The Union also explains that Proposal 1 would preserve the specialization of the CRs, in opposition to the Agency's plan to create a number of generalist CR positions at the Lawrence field office. [ v55 p1001 ]

2.     Positions of the Parties

a.     Union

      Because Proposal 1 will balance the amount of work time available for title 16 and title 2 CRs to process claims, the Union claims that Proposal 1 is an appropriate arrangement under section 7106(b)(3). The Union also claims that, by retaining specialist CRs, the proposal is an appropriate arrangement that is designed to preserve the likelihood that employees will obtain performance awards. In this connection, the Union explains that generalist CRs, which the Agency intends to create, would conduct more interviews than specialists and, therefore, would have higher case inventories and receive fewer awards than do specialists. [n6] 

b.     Agency

      The Agency claims that the Union has not shown that the proposal is sufficiently tailored to benefit employees adversely affected by the exercise of management rights.

3.     Analysis and Conclusions

      In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also 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). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of managements rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns, or that are unrelated to management's exercise of its reserved rights, do not constitute arrangements. See, e.g., National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 766 (1991). The claimed arrangement must also be sufficiently "tailored" to compensate only those employees suffering adverse effects attributable to the exercise of management's rights. See id.

      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.

      Assuming that Proposal 1 is an arrangement, we conclude that it is not appropriate because it excessively interferes with the Agency's exercise of its rights to assign work and assign employees.

      Preserving the specialization of CRs would benefit employees by allowing them sufficient time to continue to process the claims with which they are most familiar, therefore insuring the continued possibility of performance-based awards. Equalizing the number of title 16 CRs relative to title 2 CRs would also help ensure that title 16 CRs are not disadvantaged in terms of awards.

      However, the intrusion on the exercise of management's rights outweighs the benefits to be afforded to employees under the arrangement. As the Union acknowledges, the Lawrence office serves a "large and diverse urban service area," with extensive "walk-in" traffic. Petition for Review at 1. In order to meet the work demands placed on the office, management has determined that it needs six title 16 CRs performing interviewing duties each day to deal with this work load. By denying the Agency the ability to assign the full complement of employees it deems necessary to accomplish this task, Proposal 1 prevents management from determining the "particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned." National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990) (describing the right to assign work under section 7106(a)(2)(B)). It is reasonable to conclude that this result will have negative consequences for the Agency in providing the public with the service management has deemed necessary to adequately accomplish its mission. On balance, we conclude that the burden on the exercise of management rights outweighs the benefit to be derived from the proposal, thus resulting in excessive interference to the exercise of management rights. See, e.g., National Weather Service Employees Organization (MEBA/NMU) and U.S. Department of Commerce, National Oceanic and Atmo- [ v55 p1002 ] spheric Administration, National Weather Service, Silver Spring, Maryland, 46 FLRA 49, 54-55 (1992) (proposal that management delay termination of a particular service to the public for 180 days excessively interferes with the exercise of management's right to assign work).

      In sum, as Proposal 1 does not constitute an appropriate arrangement, we conclude that the proposal is not within the duty to bargain.

B.     Proposal 2

1.     Meaning of the Proposal

      The Union states that the disputed sentence in Proposal 2 is intended to make clear that when it is determined that a claimant is not entitled to title 2 benefits, further interviewing and processing work on that case would be transferred to a title 16 CR, "where eligibility may exist." Petition for Review at 6. The Agency does not dispute the Union's explanation of how the proposal would operate.

2.     Positions of the Parties

a.     Union

      The Union makes the same arguments here, concerning the Agency's "generalization" plan for CRs, as it did in connection with Proposal 1. See note 6, supra. Further, the Union argues specifically as to this proposal that it is an arrangement under section 7106(b)(3) "meant to ensure the equitable distribution of interviewing workloads between CRs specializing in either program[]." Response at 9.

b.     Agency

      The Agency argues that this proposal is contrary to management's right to assign employees and assign work under section 7106(a)(2)(A) and (B).

3.     Analysis and Conclusions

      Proposal 2 requires, in certain circumstances, the reassignment of work from an employee in one group of CRs to an employee in another group of CRs if a certain circumstance (i.e., determination that a claim originally thought to be concurrent actually involves title 16 issues) is met. Similar to Proposal 1, it is undisputed that the Agency has exercised its rights to assign work and assign employees by: 1) determining that a title 2 CR should retain some responsibility for a claim even if it is determined during processing that there is no title 2 eligibility; and 2) stating its intent to exercise these rights to establish a certain number of "generalist" CR positions in the Lawrence field office.

      The Union's case for adverse effects under Proposal 2 here is similar in key respects to its argument on Proposal 1 in SSA New Bedford, an argument the Authority found insufficient to establish adverse effects in that case. The proposal in SSA New Bedford called on management to make "every reasonable effort" to maintain CR unit work load balance, which was described as being the amount of time available for adjudication of claims versus interviewing claimants. The proposal was submitted in response to management's plan to require CRs to handle claimant interviews out of alphabetical order. The Union's arguments there were held to reflect "general dissatisfaction" by employees with management's plan for interviewing and adjudication and "speculat[ion]" as to the harm to be experienced. SSA New Bedford, 54 FLRA at 1333. Moreover, the Authority said that, even assuming the Union's claims were correct, it had not been established that there would be an adverse effect because the exercise of management rights would mean redistribution of, not an increase in, work load. 54 FLRA at 1333-34.

      In the instant case, the Union states only that the proposal will "ensure the equitable distribution of interviewing workloads between CRs specializing in either program[]," and will "balance work load distribution between [title 2] and [title 16] CRs." This explanation does not adequately identify adverse affects flowing from the Agency's exercise of management rights, and, as in SSA New Bedford, results in rejecting of the Union's appropriate arrangement argument. For example, there is no indication how often claims originally thought to be concurrent turn out to involve only title 16 issues. Thus, there is no way to know whether the workload imbalance the Union is concerned about is to any degree significant. Nor is there any evidence that the Agency's current practice of keeping this type of case with the title 2 CR actually leads to an increase in title 2 CR work load. For these reasons, we conclude that Proposal 2 does not constitute an arrangement, and is therefore not within the duty to bargain. [ v55 p1003 ]

C.     Proposal 3

1.     Meaning of the Proposal

      This proposal establishes the rotation of SRs among certain functions that are to be performed by those employees. The Union states that the proposal would have the effect of reducing the number of General Inquiry telephone lines from three to two, and eliminating the backup telephone position. Again, the Agency does not dispute the Union's explanation of the proposal.

2.     Positions of the Parties

a.     Union

      The Union contends that the proposal is an arrangement for "mitigating the adverse impact to employees assigned to interview and process benefit claims workloads." Response at 10.

b.     Agency

      The Agency argues that Proposal 3 is contrary to management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B). More specifically, the Agency says that the SRs may be needed to "perform other duties resulting in their unavailability to rotate fairly and equitably" through the various SR functions to be covered in the office. Statement of Position at 4.

3.     Analysis and Conclusions

      The Union explains that the purpose of Proposal 3 is to reduce the General Inquiry telephone lines in the Lawrence office from three to two, and to eliminate the backup telephone position usually staffed by an SR. This would "rationaliz[e] phone coverage in order to free up another SR to cover assigned duties including the processing of pending work loads." Response at 11. More specifically, the Union explains that under the current staffing pattern directed by the Agency, two SRs must cover three phone lines, while the remaining three SRs in the office cover receptionist duties, rapid interviewing, and back up to receptionist duties during break, lunch, heavy traffic periods, etc. Given the part time status of two SRs and leave taking, the Union says, SRs "rarely receive[] a day at their desks to handle pending workloads." Id. at 10. This in turn "impacts claimant benefit payments and the accurate expenditure of public money." Petition for Review at 3-4.

      It seems clear that requiring more SRs to staff the telephone lines will mean less time for those SRs to process matters at their desks, than if there were fewer SRs on the phone lines. Nonetheless, the Union fails to articulate clearly what the adverse effect of more phone time, and less desk time, is for SRs. While the Union does suggest that this supposed imbalance between phone time and processing time adversely affects the quality of service to the public, it does not specify the nature of the adverse effect to the employees themselves. Thus, as with Proposal 2 above and Proposal 1 in SSA New Bedford, the Union's argument as to adverse effects is insufficient to establish that the proposal is an arrangement under section 7106(b)(3). Therefore, the proposal is not within the duty to bargain.

D.     Proposal 4

1.     Meaning of the Proposal

      The Union states that the only dispute between the parties on this proposal is that the Union's proposal calls for maintaining a "Keep What You Take" (KWYT) policy in the context of CR specialization, while the Agency wants to continue the KWYT policy in the context of its plan for CR generalization. [n7]  Petition for Review at 8. Thus, although the proposal is cast in express terms about the KWYT policy, it is not the negotiability of that aspect of the proposal that is at issue. Rather, it is the "specialization" versus "generalization" aspect of the proposal that is at issue.

2.     Positions of the Parties

a.     Union

      The Union refers to the general claims it made concerning Proposals 1 and 2. As set out above, the Union states that Proposals 1 and 2 are designed to preserve the specialization of the CRs, in opposition to the Agency's plan to create a number of generalist CR positions at the Lawrence field office. Generalists would be required to conduct more interviews than specialists, and therefore would have higher case inventories and receive less awards than do specialists. For these reasons, the Union claims, its proposals are appropriate arrangements under section 7106(b)(3).

b.     Agency

      The Agency argues that the proposal interferes with the exercise of its rights to assign employees and assign work. The Agency states in this connection that [ v55 p1004 ] claims processing work "may need to be shifted to another employee if the employee who took the action is needed [to] perform other duties." Statement of Position at 4.

3.     Analysis and Conclusions

      Assuming that the exercise of management rights at issue here adversely affects unit employees, and that the proposal is adequately tailored to address those adverse affects, Proposal 4 is not an appropriate arrangement because it excessively interferes with the exercise of management rights.

      Management has announced its intention to exercise its rights to assign employees and assign work by creating a cadre of "generalist" CRs. The Union's proposal would operate so as to completely preclude the Agency from exercising those rights. The Union's proposal would mandate, under certain circumstances, continuance of the "specialist" CR policy that is currently in effect. As such, the proposal excessively interferes with the exercise of management's rights. See, e.g., American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA 228, 235 (1999) (proposal is inappropriate because, even though it provides some benefit to employees, it "remov[es] all management control" over the use of equipment).

      Assuming the proposal would have the effect of helping to keep CR case inventory down, thereby preventing lower evaluations and fewer performance awards for these employees than if they were converted into "generalists," management would on balance suffer greater harm because it would be completely prevented from being able to implement a plan it believes will enhance customer service. See, e.g., Statement of Position at 1 ("generalized CRs in the mix will allow the Agency flexibility to meet the public's needs on a day-to-day basis"). This balance favors finding excessive interference. For this reason, we conclude that Proposal 4 is not an appropriate arrangement, and is therefore not within the duty to bargain.

VI.     There Is No Dispute That the Proposals Relate To Matters Subject to Section 7106(b)(1) of the Statute; They Are Therefore Negotiable Only at the Election of the Agency

      The Union has asserted that each of its four proposals concerns matters contained in section 7106(b)(1) of the Statute. More specifically, the Union argues that Proposals 1, 2 and 4 concern the numbers, types, and grades of employees assigned to an organizational subdivision, work product, or tour of duty, as well as the methods and means of performing the work. The Union argues that Proposal 3 concerns the methods and means, as well as the technology, of performing the work.

      The Agency does not contest the Union's assertions in this regard. Rather, the Agency argues only that, even assuming the proposals concern matters under section 7106(b)(1), it has not elected to bargain on such matters. As the Agency does not contest the Union's arguments that the proposals concern matters contained in section 7106(b)(1) of the Statute, we conclude that the proposals are negotiable only at the election of the Agency. See U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 53 FLRA 858, 870 (1997) (agency's failure to present any grounds for concluding that management action did not concern a matter subject to section 7106(b)(1) warrants conclusion that the action did concern section 7106(b)(1) matter). As such, consistent with section 2424.10 of the Authority's regulations, the Union's petition for review must be dismissed.

VII.     Order

      The petition for review is dismissed.






Footnote # 1 for 55 FLRA No. 163

   This section of the regulations, which was in effect at the time the Union filed its petition, has been modified and renumbered as section 2423.40 of the recently revised regulations. See 63 Fed. Reg. 66,413 (1998). As the revised regulations apply only to petitions filed after April 1, 1999, we apply the prior regulations in this case.


Footnote # 2 for 55 FLRA No. 163

   The Union states that only the underlined portion of Proposal 2 is at issue, as that is the only part of the proposal that differs from the original 1996 agreement. The Agency does not expressly refute the Union's assertion. Further, the parties do not explain what "TDTR" or the "DDS file" are. However, we find it unnecessary to determine precisely what those terms mean in order to resolve whether the proposal is within the duty to bargain.


Footnote # 3 for 55 FLRA No. 163

   The Agency and the Union negotiated a memorandum of understanding (MOU) addressing office work flow and work load distribution. The Union's proposals were presented to the Agency in the form of a revised MOU with an attached "workflow memorandum." Petition for Review, Attachment 1 at 1. Part II of the workflow memo establishes a number of "processing guidelines" for KWYT, including specifying that CRs will retain responsibility for "all claims related actions within their title." Id. at 9.


Footnote # 4 for 55 FLRA No. 163

   Because the Union does not contest the Agency's management rights arguments, it is appropriate to proceed directly to a consideration of the Union's claims under section 7106(b) of the St