[ v17 p657 ]
The decision of the Authority follows:
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.