American Federation of Government Employees, Local 1164 (Union) and Social Security Administration (Agency)

[ v60 p785 ]

60 FLRA No. 149

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1164
(Union)

and

SOCIAL SECURITY ADMINISTRATION
(Agency)

0-NG-2779

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

March 29, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of three proposals relating to the assignment of employees to particular work units. The Agency filed a statement of position, to which the Union filed a response. The Agency did not file a reply. [n1] 

      For the reasons that follow, we find that the proposals are within the duty to bargain.

II.     Proposals [n2] 

Proposal 3

Claims Representatives (CR) whom the Agency has qualified to perform the work of the specialized units shall have the opportunity to serve in the specialized units. Management will post the qualifications established to perform the work of the specialized units on the Lynn Office bulletin board. A rotation will be established amongst volunteers who meet these qualifications based initially on Service Computation Date (SCD) to fill vacated positions in these units. Management will make reasonable efforts to rotate employees in and out of the specialized units after reasonable time frames that ensure a fair and equitable distribution of this work amongst the qualified employees. If an employee currently assigned to the specialized units vacates the position management will solicit volunteers amongst all CRs and TEs shown on the rotation list beginning with volunteers with the oldest SCD.
Proposal 4
Any employees wishing to be placed on the rotation list for the specialized units will be given the opportunity to show management they meet the qualifications that the Agency has established to do such work. If management does not find the employee qualified they will put in writing what the employee needs to improve to become qualified; this can be done after the initial rotation list is established. If the employee feels that they have meet [sic] the qualifications the employee maintains their rights per the provisions in the National Agreement to file a grievance.
Proposal 5
Should a qualified CR who is currently assigned to the Redetermination (RZ) unit wish to volunteer for one of the specialized units, the same procedures set forth at Article II, Section 1 (1 and 2) will be used to back fill the RZ unit.

III.      Meaning of the Proposals

      The parties agree that Proposal 3 requires the Agency to select employees on a rotating basis, in order of seniority, from a roster created by the Agency to fill vacancies in the specialized units. However, the parties dispute whether the proposal provides the Agency with the authority to determine and apply the qualifications for performing work in the specialized units.

      When interpreting a disputed proposal, the Authority will examine the wording of the proposal as well as the union's statement of intent. If the union's statement of intent comports with the plain words of the proposal, the Authority will adopt the union's interpretation of the proposal. See AFGE, Local 1900, 51 FLRA 133, 138-39 (1995). [ v60 p786 ]

      The wording of the proposal indicates that only claims representatives "whom the Agency has qualified to perform the work of the specialized units" will have the opportunity to perform such work. According to the Union, the proposal provides the Agency with the authority to establish the qualifications necessary to perform the work of the specialized units and determine which employees are equally qualified to perform this work. See Record of Post-Petition Conference at 2; Response at 4-5. In addition, the Union expressly concedes that the fact that an employee is a claims representative does not automatically mean that all claims representatives are equally qualified to perform work in the specialized units. See Response at 5.

      The Agency contends that the Union's explanation "implie[s] that all employees within the same position descriptions are deemed qualified and should be included on the seniority roster." Statement of Position at 3. Thus, according to the Agency, the proposal would require it to place all claims representatives with the same position description on the roster even if they are not equally qualified and would not permit the Agency to consider other job-related individual characteristics in determining which claims representatives are equally qualified to perform work in the specialized units.

      The wording of the proposal and the Union's explanation indicate that the proposal provides the Agency with the authority to establish the qualifications necessary to work in the specialized units and to determine which employees are equally qualified to perform this work. The Agency has provided no explanation why the Union's meaning does not comport with the wording of the proposal. Consequently, we adopt the Union's explanation of the meaning of the proposal. [n3] 

      With regard to Proposal 4, the parties agree that all interested employees will have the opportunity to demonstrate to the Agency that they meet the qualifications set by the Agency to be placed on the rotation list. The parties also agree that the Agency will explain to the employees not selected for placement on the rotation list, in writing, how they can meet the qualification standards.

      The parties further agree that Proposal 5 means that the Agency will utilize the procedures set forth in Proposals 3 and 4 to fill vacancies in the Redetermination (RZ) unit created by the reassignment of employees from that unit to one of the specialized units.

IV.     Positions of the Parties

A.     Agency

      The Agency argues that Proposal 3 affects its rights to assign work and assign employees under § 7106(a)(2) of the Statute. In this regard, the Agency contends that the proposal precludes it from establishing and applying the qualifications for working in the specialized units by essentially requiring the Agency to place all claims representatives within the same position description on the roster without consideration as to other job-related individual characteristics of the employees. Moreover, the Agency asserts that, under Authority case law, a proposal requiring assignment by seniority, where management does not retain the authority to determine that employees are equally qualified to perform the work assignments, affects management's right to assign work.

      The Agency further argues that Proposal 3 does not constitute a negotiable procedure under § 7106(b)(2) because the Union has not demonstrated that the claims representatives in the same position description are equally qualified to perform work in the specialized units. In addition, the Agency contends that Proposal 3 does not constitute an appropriate arrangement under § 7106(b)(3) because it excessively interferes with the Agency's right to "determine that one [c]laims [r]epresentative is better suited to perform the work of the specialized unit than another." Statement of Position at 6.

      The Agency also claims that Proposals 4 and 5 are inextricably intertwined with Proposal 3 so as to render these proposals nonnegotiable. Thus, according to the Agency, for the reasons set forth regarding Proposal 3, Proposals 4 and 5 affect management's rights to assign work and assign employees and do not constitute procedures or appropriate arrangements.

B.     Union

      The Union contends that Proposal 3 does not affect the Agency's rights to assign work or assign employees. In this regard, the Union asserts that the proposal provides the Agency with the authority to establish the qualifications necessary to perform the work of the specialized units and determine which employees are equally qualified to perform this work.

      In addition, the Union contends that Proposal 3 is a negotiable procedure because it sets forth procedures for filling vacancies in the specialized units while permitting [ v60 p787 ] the Agency to retain the authority to establish the qualifications necessary to work in the specialized units and to determine which employees meet those qualifications. The Union further contends that Proposal 3 is an appropriate arrangement because it would provide qualified employees the opportunity to perform all the critical elements of their position.

      The Union agrees with the Agency that Proposals 4 and 5 are inextricably intertwined with Proposal 3 and argues that these proposals, for the same reasons as set forth with regard to Proposal 3, do not affect the Agency's rights to assign work and assign employees and are procedures and appropriate arrangements.

V.     Analysis and Conclusions

     The proposals do not affect management's rights to assign employees and assign work under § 7106(a)(2) of the Statute.

      The rights to assign work and assign employees under § 7106(a)(2) of the Statute include the right to establish the qualifications and skills needed for positions and/or duties and to judge whether particular employees meet those qualifications and skills. See Laborers Int'l Union of N. America, ALF-CIO, Local 1276, 9 FLRA 703, 706 (1982). In this regard, an agency may require employees to possess specific knowledge, skills, and abilities needed to do the work of a position, as well as job-related individual characteristics such as judgment and reliability. See AFGE, Local 138, Council 214, 51 FLRA 1725, 1728-29 (1996). A proposal requiring selection based on seniority does not affect management's rights to assign work and/or assign employees where management has already determined, or retains the authority to determine, that the employees are equally qualified for the work assignments. See id. at 1730-31.

A.      Proposal 3

      Proposal 3 requires the Agency to select qualified employees on a rotating basis, in order of seniority, from a roster created by the Agency to fill vacancies in the specialized units. As explained above, the express terms of the proposal indicate that only claims representatives "whom the Agency has qualified to perform the work of the specialized units" will have the opportunity to perform such work. In accordance with the Union's explanation, we have determined, above, that under the proposal the Agency retains authority to establish the qualifications necessary to perform the work of the specialized units and determine which employees are equally qualified to perform this work.

      The Agency contends that Proposal 3 would require it to place all claims representatives with the same position description on the roster even if they are not equally qualified. However, the Union expressly concedes that the fact that an employee is a claims representative does not automatically mean that all claims representatives are equally qualified to perform work in the specialized units. See Response at 5. The Agency also contends that the proposal would not permit it to consider other job-related individual characteristics in determining which claims representatives are equally qualified to perform work in the specialized units. Contrary to the Agency's contention, nothing in either the Union's explanation of Proposal 3 or our determination of the meaning of Proposal 3 would preclude the Agency from considering other job-related individual characteristics in making its determination of which claims representatives are equally qualified to perform the work at issue.

      Thus, based expressly on the foregoing construction of the proposal and the established precedent cited above, we find that Proposal 3 does not affect management's rights to assign work and assign employees under § 7106(a)(2) of the Statute and that it is within the duty to bargain. [n4] 

B.      Proposals 4 and 5

      The Agency and Union agree that Proposal 3 is "inextricably intertwined" with Proposals 4 and 5 and the Agency offers no additional arguments explaining why these proposals are not within the duty to bargain. [n5]  Therefore, based on our finding that Proposal 3 is within the duty to bargain, we also find that Proposals 4 and 5 do not affect the Agency's rights to assign work and assign employees under § 7106(a)(2) of the Statute and are within the duty to bargain. [n6] 

VI.     Order

      The proposals are within the Agency's duty to bargain, and the Agency shall, upon request, or as otherwise agreed to by the parties, negotiate with the Union over these proposals.



Footnote # 1 for 60 FLRA No. 149 - Authority's Decision

   The Union's initial appeal in this case included twelve proposals. Subsequently, the parties narrowed to three the number of proposals in dispute.


Footnote # 2 for 60 FLRA No. 149 - Authority's Decision

   The wording of Proposals 3 and 4 is as modified during the Post-Petition Conference. See Report of Post-Petition Conference, September 17, 2004, at 2-3.


Footnote # 3 for 60 FLRA No. 149 - Authority's Decision

   The meaning we adopt for the proposals would apply in other proceedings, unless modified by