17:0657(95)NG - NFFE, Council of Consolidated SSA Locals and HHS, SSA -- 1985 FLRAdec NG

 17 FLRA No. 95
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, COUNCIL OF CONSOLIDATED 
 SSA LOCALS 
 Union 
 
 and 
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION 
 Agency
 
                                            Case No. 0-NG-866
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of three Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          April 1, 1983, 9 policy changes and 90 clarifications were
       issued on the issue of In-Kind Support and Maintenance in the SSI
       Program.  The Union proposes that a moratorium of 6 months
       duration be granted beginning April 1, 1983.  During this period,
       errors will be noted and corrected.  However, no claims
       representative nor data review technician will be charged with
       payment or documentation errors on issues relating to these 9
       policy changes or 90 clarifications.  If any are charged, they
       will be removed.
 
    According to the Union, the instant proposal was prompted by
 substantial revisions to the Agency's Program Operations Manual System
 which guides employees in the processing of claims and post entitlement
 actions of claimants comprising the Agency's clientele.  The Union
 asserts that it has no intention, by means of this proposal, to
 challenge management's right to determine the manner in which claims are
 to be processed or to set standards for employee performance.  Rather,
 the Union describes the operation of the proposal as follows:
 
          Under the terms of this proposal, . . . management would
       monitor and review the work of employees, pointing out when errors
       are made.  The error would be corrected and the employee advised
       why the action taken was in error and how such an error could be
       avoided in the future.  However, for purposes of the formal
       evaluation of employees' performance(,) errors would not be
       charged for that six-month period.  Thus, the adverse effects of
       management's introduction of this new material would be
       alleviated.  /1/
 
 Based on the Union's explanation, which is adopted for purposes of this
 decision, the Authority concludes that the proposal establishes what is
 tantamount to a training period during which employees are to
 familiarize themselves with substantial revisions to their published
 guidance before they are charged with errors attributable to not
 following the new procedures.  In this respect, Union Proposal 1 is to
 the same effect as the proposal before the Authority in American
 Federation of State, County and Municipal Employees, Local 2910, AFL-CIO
 and Library of Congress, 15 FLRA No. 112 (1984), which delayed the
 application of performance requirements during the first three months an
 employee is performing the duties of the new position.  Noting that
 "(t)he proposal only provides that employees will not be evaluated
 during their training period, not that employees will not be expected to
 perform the work assigned," the Authority determined that the proposal
 did not interfere with management's right to assign work and, hence, was
 within the duty to bargain.  Therefore, based on Library of Congress,
 and the reasons and cases cited therein, Union Proposal 1 is within the
 Agency's duty to bargain.  Consequently, in view of the substantial
 revision of the Agency's operating procedures, Union Proposal 1, which
 requires imposition of a reasonable "training period," is, based on
 Library or Congress and the reasons and cases cited therein, within the
 Agency's duty to bargain.
 
                             Union Proposal 2
 
          We also propose the time limits for claims development be
       adjusted to take into consideration the additional research and
       development time needed in these areas (In-Kind Support) and
       Maintenance).
 
    The Authority has consistently held that proposals substantively
 restricting management's authority to establish performance standards
 are inconsistent with the rights to assign work and to direct employees
 pursuant to section 7106(a)(2)(A) and (B) of the Statute.  Here, the
 Union seeks to have "adjusted" the time limits established by the Agency
 for claims development.  Such an objective is distinguishable from the
 result sought by Union Proposal 3 in American Federation of Government
 Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New
 York Regional Office, 7 FLRA 571 (1982), which required that standards
 of performance "make allowances" for factors beyond employees' control.
 In that case, the Authority found the cited proposal constituted "a
 general, nonquantitative requirement" by which the application of
 performance standards established by management may subsequently be
 evaluated in a grievance by an employee who believes that he has been
 adversely affected by the application of such performance standards.
 Here, however, the proposal directly addresses the content of
 performance standards themselves by requiring that time limits "be
 adjusted." Thus, Union Proposal 2, herein, is to the same effect as
 Union Proposal 3 in American Federation of Government Employees, Local
 32 and Office of Personnel Management, 16 FLRA No. 127 (1984) petition
 for review filed sub nom. Local 32, American Federation of Government
 Employees, AFL-CIO v. FLRA, No. 85-1038 (D.C. Cir. Jan. 1, 1985),
 requiring that performance standards themselves be fair and equitable,
 which the Authority held to be nonnegotiable.  Consequently, based upon
 Office of Personnel Management and the reasons and cases cited therein,
 Union Proposal 2, herein, interferes with the rights to assign work and
 to direct employees, reserved to management by section 7106(a)(2)(A) and
 (B), and likewise is outside the Agency's duty to bargain.
 
                             Union Proposal 3
 
          With regard to input on the SSA-450S and 1719B in the EN and UM
       fields, the Union proposes that claims representatives and data
       review technicians be given documentation errors rather than
       payment errors when estimates for future income are made.
 
    It appears from the record that the Union intends, by means of this
 proposal, that mistakes in estimating claimants' future income be
 changed from one category of error to another category carrying with it
 a lesser degree of severity.  Thus, the proposal attempts to prescribe
 the degree of unacceptability assignable to a specific type of error.
 In this respect, Union Proposal 2 is to the same effect as the union
 proposals, grouped under the heading "Proposals concerning definitions
 of errors" in American Federation of Government Employees, Local 1760,
 AFL-CIO and Department of Health and Human Services, Social Security
 Administration, 15 FLRA No. 172 (1984) petition for review filed sub
 nom. Department of Health and Human Services, Social Security
 Administration v. FLRA, No. 84-4155 (2d Cir. Oct. 25, 1984), which the
 Authority found to be outside the bargaining obligation.  In so finding,
 the Authority noted that the proposals "prescribe what performance in
 terms of accuracy is to be deemed unacceptable and the degree to which
 it is unacceptable." Hence, based on Social Security Administration and
 the reasons and cases cited therein, Union Proposal 3 is inconsistent
 with management's rights to direct employees and to assign work,
 pursuant to section 7106(a)(2)(A) and (B) of the Statute, and,
 consequently, is outside the Agency's obligation to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposal 1.
  /2/ IT IS FURTHER ORDERED that the petition for review as it relates to
 Union Proposals 2 and 3 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., April 23, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Union Reply Brief at 2.
 
 
    /2/ In finding Union Proposal 1 to be within the duty to bargain, the
 Authority makes no judgment as to its merits.