[ v15 p909 ]
The decision of the Authority follows:
15 FLRA No. 172 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, AFL-CIO Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency Case No. O-NG-720 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 presents issues relating to the negotiability of 18 Union proposals grouped under three subject-matter headings. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /1/ Proposals Concerning Definition of Errors Errors are divided into five categories: 1. Payment Errors 2. Documentation Errors 3. Notice Errors 4. Exception Errors 5. Technical Inefficiencies These categories are defined as follows: (Proposal 1) 1. Payment Errors This category encompasses any error which results or would result in an incorrect payment either currently or in the future with an adverse effect on the beneficiary. The following will be considered payment errors: a) An incorrect decision to pay or not to pay benefits where sufficient documentation to make the correct decision exists in the file. (If unnecessary documentation is undertaken, classify as Technical Inefficiency.) b) Incorrect benefit amounts where the beneficiary is in indefinite suspense. c) Payment of benefits for the wrong month. d) Incorrect entitlement decisions concerning Health Insurance. (Proposal 2) 2. Documentation Errors This category encompasses errors involving a failure to undertake necessary development action and the failure to prepare a special determination when required. (Proposal 3) 3. Notice Errors This category encompasses errors involving the failure to send a required notice or the sending of a notice that contains incorrect information to beneficiaries and other government agencies. The following will be considered notice errors: a) Designation of incorrect letter/paragraph fill-ins. b) Unresponsive replies to district office inquiries. c) Unresponsive dictated letters and paragraphs. (Proposal 4) 4. Exception Errors This category encompasses errors that would definitely cause exceptions in the payment processing programs such as CAPS, MADCAP, etc. (Proposal 5) 5. Technical Inefficiencies This category encompasses errors where the action was technically correct and the mistake would have minimal effect on the beneficiary and/or the Trust Fund now or in the future. These errors are strictly informational and are recorded only for individual and/or group training purposes. Examples include: a) Failure to provide letter/paragraph fill-ins. b) Unnecessary documentation. c) Failure to disposition a folder. d) Coding and/or remarks errors on the SSA-101 or SSA-2795 that have no effect on the case: 1. Omission of RID 5 remarks on the SSA-2795; 2. Omission of the asterisk adjacent to the benefit rate on item 6 of an SSA-101 in dual entitlement cases routed to a benefit authorizer, etc. e) Failure to use automated notices or paragraphs. f) Failure to use Word Processing notices and/or paragraphs. g) Misroutes to MADCAP instead of APO. h) Misroutes of forms or folders. i) The use of the SSA-2795 in lieu of other forms. NOTE: Failure to prepare diaries will be classified under the appropriate category - i.e., Payment Error or Technical Inefficiency - depending on the effect of the action. Failure to obtain an MBR or related folder when required should also be classified by the effect of the action. (Proposal 6) Only categories 1 through 4 will be considered in the computation of the accuracy percentage. Errors will be weighted for their impact on the action taken as follows: a) A payment error will render a case 80 percent incorrect. b) A documentation error will render a case 70 percent incorrect. c) A notice error will render a case 20 percent incorrect. d) An exception error will render a case 10 percent incorrect. As to the first group of six proposals, under the heading "Definition of Errors," the Union states: Our proposal would not impose on management a particular decision on the content of a performance standard or impair management's authority to identify a critical element. It would simply allow employees to know, with preciseness, when performance errors were made and which ones would have a negative impact on the total assessment of their performance. /2/ While the purported intent of this group of proposals is to inform employees of the nature and gravity of errors in the performance of their work, the proposals, nevertheless, define errors, prohibit management from considering certain mistakes in evaluating the accuracy of work, and assign varying degrees of importance to the enumerated categories of errors. /3/ In National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), the Authority noted that, pursuant to law and regulation governing the establishment of performance appraisal systems, a performance standard determines the level of work performance in terms of, among other factors, quality, quantity, or timeliness which is acceptable for certain purposes, such as job retention. It was therefore concluded that a proposal which would have established a particular performance standard for job retention was inconsistent with management's rights, pursuant to section 7106(a)(2)(A) and (B) of the Statute, respectively to direct employees and to assign work. Further, in National Treasury Employees Union and U.S. Nuclear Regulatory Commission, 13 FLRA No. 49 (1983), the Authority stated: Thus, the rights to assign work and direct employees extend to establishing job requirements, e.g., performance standards, for various levels of achievement, which management will use to encourage and reward successful performance as well as to discourage performance which is unacceptable. The first group of six proposals concerning definition of errors prescribe what performance in terms of accuracy is to be deemed unacceptable and the degree to which it is unacceptable. Therefore, they are, for the reasons stated in Bureau of the Public Debt and Nuclear Regulatory Commission, inconsistent with management's rights to direct employees and assign work and outside the obligation to bargain. Proposals Concerning Random Sample of Cases 1. A random sample of an employee's work will be conducted during a continuous six-month period during each appraisal period. 2. No cases performed on overtime (including religious compensatory time) will be subject to the random sample. 5. The random sample will consist of 20 cases to be selected by the technical assistance from the employee's "out" tray. 7. The following categories of work (and the number for each) will be sampled: BENEFIT AUTHORIZER: Awards (5); AJS-3 (2); Students (2); District Office Inquiries (4); Exceptions (2); AERO (2); Cyclical (3). CLAIMS AUTHORIZER: Awards (10); Earnings Discrepancy (5); Cyclical (5). 8. Errors will be weighted for their impact on the action taken (see "Definition of Errors"). 9. For all cases that are defective, the technical assistant will note whether the defect is the result of an "oversight" or a genuine lack of understanding. (The numbering is that used by the parties.) As to the second group of six proposals, headed "Random Sample of Cases," the Union asserts that: The use of 100% review would not be affected by random sampling. The timing, duration and extent of the sample would reside essentially within the agency purview. /4/ This explanation is not inconsistent with the language of the proposals themselves and is accordingly adopted for purposes of discussion. Read in this light, proposals 1, 2, and 7 under the random sample heading merely prescribe the minimum procedures, i.e., a random sampling, that management will adopt in auditing employee performance, and delineate the manner of executing that procedure. The prescribed procedure is not the sole one available to management and does not prohibit the Agency from scrutinizing more closely the work of employees identified as performing in a substandard manner. Thus it is concluded that proposals 1, 2, and 7 constitute procedures, within the meaning of section 7106(b)(2) of the Statute, which management officials will observe in exercising their authority to evaluate the performance of employees. In agreement with the Agency, however, the Authority finds that proposals 5 and 9 under the heading "Random Sample of Cases" are outside the duty to bargain. These two proposals would require the technical assistant, in proposal 5 to select a random sample of 20 cases from each employee's "out" tray and in proposal 9 to note the cause of the deficiencies in employees' work product. In this regard, proposals 5 and 9 are to the same effect as Union Proposal 4 in American Federation of State, County, and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA No. 109 (1983) which the Authority found to be inconsistent with the management right, pursuant to section 7106(a)(2)(B) of the Statute, "to assign work." In finding the proposal in the cited case to be nonnegotiable, the Authority noted that it would "obligate the Agency to continue assigning specified duties to named employees for the agreement's term." Thus, based on Library of Congress, and the reasons and case cited therein, proposals 5 and 9 under the heading "Random Sample of Cases" are inconsistent with the reserved management right "to assign work." As to the remaining proposal under the random sample heading, namely, proposal 8, the Authority finds this proposal to be outside the duty to bargain. The net effect of this proposal is identical to those found to be nonnegotiable under the heading "Definition of Errors" in that it requires application of those standards of performance to the information gathered in the random sampling process. Thus proposal 8 like the proposals to which it refers, is inconsistent with management's rights, pursuant to section 7106(a)(2)(A) and (B) of the Statute, respectively to direct employees and to assign work. Proposals Concerning Measuring Productivity 1. A maximum of four case counts will be performed during a period when the random sample is not being performed. 4. The employee will work those cases on his/her desk and will work additional cases as needed (backlog, priorities, etc.). These cases will emanate solely from the employee's terminal digit area. 5. The employee will release his/her cases at the end of his/her workday to the technical assistant. 6. The technical assistant will count the cases and look them over to ensure that they are backlog and/or priority cases (i.e., a "normal day's work"). 7. The cases will then be subject to the normal quality checks that are normally utilized (e.g., consistency checks, QA audit, etc.). 8. The technical assistant will do the counting but no account numbers will be recorded. (The numbers are those assigned by the parties) Proposal 1 under the heading "Measuring Productivity," unlike the proposals grouped under "Random Sampling of Cases," does not establish a standard procedure, which may be varied as circumstances dictate, for the collection of performance evaluation data. Rather, this proposal would impose a ceiling, i.e., a "maximum of four case counts" on the assessment of employee productivity. Thus, the Agency would be precluded from conducting additional counts if considered necessary to acquire more accurate information on individuals or groups of employees. As previously noted, the identification of critical elements and the establishment of performance standards are ways in which management exercises its rights, pursuant to section 7106(a) of the Statute, to direct employees and assign work. Obviously, however, the exercise of these rights comprehends the evaluating of employees against the standards established for each element. In order to do so, management must obtain sufficient information upon which to base the evaluation. In this regard, the Agency points out: "This proposal would prevent management from performing the number of case counts it deems necessary to ensure an adequate production level is maintained if management decides more than four case counts are necessary." /5/ Thus, by limiting management's ability to collect data for evaluating performance, proposal 1 under the heading "Measuring Productivity" directly interferes with the right to direct employees and assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute and is outside the duty to bargain. The Union asserts that its proposal 4 under the "Measuring Productivity" heading "does not assign work, but reflects the fact that after work is assigned by the agency they (sic) will be acted upon in a particular order." /6/ The proposal, however, would effectively preclude management from revising previously made assignments to accommodate, e.g., emergencies or special priorities, and would limit work assignments to the employee's "terminal digit area." In this regard, proposal 4 is to the same effect as the portion of the proposal limiting the assignment of work during an emergency call back to those tasks directly related to the emergency, which the Authority found to be inconsistent with management's right "to assign work" in National Federation of Federal Employees, Local 1380 and Department of the Navy, Naval Coastal Systems Center, Panama City, Florida, 11 FLRA No. 33 (1983). Hence, based on Naval Coastal Systems Center, and the reasons and case cited therein, proposal 4 under the "Measuring Productivity" heading is inconsistent with the Agency's right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work. Proposals 5, 6 and 8 under the "Measuring Productivity" heading assign specific responsibilities to a named employee, the technical assistant. Thus, these proposals are to the same effect as proposals 5 and 9 under the heading "Random Sample of Cases" discussed above. Consequently, for the reasons stated earlier, proposals 5, 6 and 8 are also inconsistent with the management right, pursuant to section 7106(a)(2)(B) of the Statute, "to assign work" and are outside the Agency's duty to bargain. The Agency contends, with regard to proposal 7 under the "Measuring Productivity" heading, that it would be inhibited in evaluating the performance of employees who require closer than "normal" scrutiny. The Union states, with regard to this proposal, "Rather than limiting the agency's capacity to audit, the unambiguous language of the proposal refers to normal quality checks, normally utilized. The intent of the proposal is illustrative rather than restrictive." /7/ For its part, the Agency tacitly admits that the proposal describes the quality checks it usually applies to employees' work when it asserts that under the proposal "management could not unilaterally determine that quality checks over and above what is normally utilized are necessary . . . . " /8/ Both the language of the proposal and the Union's further explanation indicate that no limitation on quality checks is intended. Thus, it is concluded that the proposal, contrary to the Agency's view, neither affects its right to direct employees and assign work nor limits its right to determine the methods and means of performing work. Therefore, proposal 7 under the heading "Measuring Productivity" is within 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 the following proposals: proposals 1, 2, and 7 under the heading "Random Sample of Cases," and proposal 7 under the heading "Measuring Productivity." /9/ IT IS FURTHER ORDERED that the Union's petition for review, as it relates to all six proposals under the heading "Definition of Errors," proposals 5, 8 and 9 under the heading "Random Sample of Cases," and proposals 1, 4, 5, 6 and 8 under the heading "Measuring Productivity" be, and it hereby is, dismissed. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's contention that the petition should be dismissed for lack of compliance with the requirement in section 2424.4(a)(2) of the Authority's Rules and Regulations that the Union furnish an explicit statement of the meaning of the proposals cannot be sustained, since such a statement was furnished. The additional agency contention that the petition should be dismissed because the Union filed to serve a copy of its petition on the Agency head also cannot be sustained, since the Union corrected this oversight within time limits set by the Authority. Thus, the Agency's motions to dismiss the petition must be denied. /2/ Union Petition for Review at 1-2. /3/ With regard to the definition of errors, see, American Federation of Government Employees, Local 1822, AFL-CIO and Veterans Administration Medical Center, Waco, Texas, 9 FLRA 709 (1982), wherein the disputed proposal sought, inter alia, to define "medication incidents/errors." The Authority, at 711, noted that "insofar as the Union's proposal would have the effect of modifying the substantive criteria for taking disciplinary action . . . it must be found to be violative of management's right to discipline employees pursuant to section 7106(a)(2)(A) of the Statute." /4/ Union Reply Brief at 3. /5/ Agency Statement of Position at 6. /6/ Union Reply Brief at 4. /7/ Id. at 4-5. /8/ Agency Statement of Position at 8. /9/ In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.