24:0470(50)NG - AFGE Local 1501 and HHS, SSA, Baltimore, MD -- 1986 FLRAdec NG

 24 FLRA No. 50
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 1501
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL 
 SECURITY ADMINISTRATION 
 BALTIMORE, MARYLAND
 Agency
 
                                            Case No. 0-NG-830
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of three Union proposals.  /1/ The Union
 submitted the proposals in response to the Agency's announcement of its
 intentions to reassign employees to work on different types of cases.
 At the time the Union filed this appeal it also filed an unfair labor
 practice charge (ULP) concerning the Agency's actions.  It elected to
 have the ULP processed first.  The ULP was decided in Department of
 Health and Human Services, Social Security Administration, Baltimore,
 Maryland, 22 FLRA No. 10 (1986).
 
                          II.  Procedural Issues
 
    A.  The Petition Is Timely
 
    The Agency argues that this appeal, filed on April 22, 1983, is
 untimely based on a written allegation of nonnegotiability which it gave
 the Union on April 1, 1983.  This written allegation had not been
 requested by the Union and did not start the time limits for an appeal.
 See, for example, International Brotherhood of Electrical Workers,
 AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving
 and Printing, Washington, D.C., 10 FLRA 198 (1982).  The Union presented
 revised proposals on April 7, 1983.  The appeal is timely filed from the
 Agency's written allegation of nonnegotiability as to those revised
 proposals dated April 8, 1983.
 
    B.  The Alleged Defect in the Service of the Appeal Is Not Fatal
 
    The Agency asserts that the Authority should dismiss the appeal
 because the Union did not adequately serve it with the initial petition.
  There is no question that the Union's initial filing was flawed.
 However, when the Authority advised the Union of the deficiencies in the
 time set by the Authority.  In its supplemental submission, the Union
 indicated that it had served representatives of the Agency with "a copy
 of the petition for review and related documents." The Agency asserts
 that appropriate officials have, in fact, not been served with the
 initial submission.
 
    Two factors are important to this issue.  The first is that the
 Union's initial filing contained no substantive information about the
 appeal which was not in the supplemental filing.  In view of the defects
 in the initial filing and the fact that the Union's supplemental filing
 contained all the information relevant to the appeal we find that, even
 assuming that the original filing was not served on the appropriate
 agency officials in a timely manner, the Agency suffered no real
 disadvantage.  The second consideration is that the negotiability issues
 which are the subject of this appeal were also involved in parallel
 proceedings -- the ULP complaint referred to above.  /2/ In the hearing
 conducted on the complaint the Agency submitted as evidence the Union's
 initial filing in this case (Respondent's Exhibit No. 1 in the
 proceedings leading to Department of Health and Human Services, Social
 Security Administration, Baltimore, Maryland, 22 FLRA No. 10 (1986) ).
 Moreover, the negotiability of the Union's proposals which are the
 subject of this case was litigated in the context of determining whether
 a ULP had occurred in that case.  See Department of Health and Human
 Services, 22 FLRA No. 10 at 103-105 and 115-116.  In these circumstances
 we find, even assuming that technically the Agency was not properly
 served with the initial filing, there was no prejudice to the Agency and
 dismissal of the appeal on that basis is not warranted.
 
    C.  Mootness
 
    The negotiability of Union Proposals 1 and 3 was decided in
 Department of Health and Human Services, 22 FLRA No. 10 at 115-16.  The
 Agency did not file exceptions to the Administrative Law Judge's
 conclusions that these proposals were negotiable.  These conclusions
 were adopted by the Authority.  In the circumstances of this case,
 therefore, further consideration of proposals 1 and 3 is unwarranted and
 the Union's petition for review of them is dismissed as moot.
 
                          III.  Union Proposal 2
 
       3.  The change will be made in such a manner as to not unfairly
       disadvantage any particular employee or impose any unreasonable or
       unnecessary workload burden on any particular employee in the SSI
       Claims Unit.
 
    A.  Positions of the Parties
 
    Neither party makes any argument specific to this proposal.  The
 Union's general arguments are that its proposal:  Is procedural in
 nature;  constitutes arrangements for adversely affected employees;  and
 merely establishes nonquantitative criteria by which the Agency's
 actions can be evaluated.  The Agency generally argues that the proposal
 interferes with its rights to direct employees and to assign work.
 
    B.  Analysis and Conclusions
 
    1.  The Proposal Is Not Procedural in Nature
 
    The Union offers no explanation as to how this proposal is intended
 to be administered.  On its face, however, the proposal is not limited
 to prescribing general, nonquantitative criteria by which Agency actions
 will subsequently be evaluated.  Rather, it prescribes specific criteria
 -- "unreasonable or unnecessary workload burden" -- which the Agency
 must observe in deciding which work will be assigned to employees.  In
 the factual context established by the supporting documents submitted in
 conjunction with the appeal in this case and the findings in the
 decision in Department of Health and Human Services, 22 FLRA No. 10, we
 conclude that the Union intends this proposal to produce a particular
 result -- to dictate to the Agency the specific employees to be assigned
 to process various types of cases.  That is, insofar as appears from the
 record, the Union disapproved of the Agency's choices as to the
 employees who would be assigned to particular types of cases and desired
 to impose on the Agency its judgments as to the appropriate choices for
 such assignments.  In view of these facts and the specific nature of the
 criteria contained in this proposal, we conclude that the proposal would
 directly interfere with substantive management decisions as to the
 assignment of work.  See National Treasury Employees Union and
 Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981)
 (Proposal V).  Thus, it is not merely procedural in nature.  See
 Department of Defense v. Federal Labor Relations Authority, 659 F.2d
 1140, 1152 (D.C. Cir. 1981), in which the Court distinguished between
 nonnegotiable proposals which, while cast in procedural language,
 directly interfere with management rights and negotiable ones which are
 "more nearly pure procedures" and which have less direct substantive
 repercussions.
 
    2.  The Proposal Does Not Constitute an Appropriate Arrangement
 
    To determine whether this proposal, which we have concluded directly
 interferes with the exercise of management rights, constitutes a
 negotiable appropriate arrangement within the meaning of section
 7106(b)(3), it is necessary to determine whether the proposal's
 interference with the exercise of those rights is "excessive." National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986).  In making such a determination,
 we examine the record to ascertain whether the proposal is in fact
 intended to be an arrangement for employees adversely affected by
 management's exercise of its rights.  If we conclude that the proposal
 is so intended, we then determine whether the arrangement is appropriate
 or inappropriate based on whether or not it excessively interferes with
 management rights.
 
    First, we find that the Union intended the proposal to be an
 arrangement for employees adversely affected by the Agency's exercise of
 its rights to assign work.  As discussed above, the record establishes
 that this proposal seeks to ameliorate the effect of management's
 decisions concerning work assignments by imposing substantive criteria
 intended to dictate the specific employees to be assigned to process the
 various types of cases.  It would, thus, effectively eliminate the
 Agency's discretion to determine the particular employee to whom duties
 will be assigned.  It would, in other words, substitute the Union's
 judgments as to the appropriateness of assignments for those of
 management.  It would dictate that assignments be made without regard to
 valid, work-related considerations.  See National Treasury Employees
 Union and Internal Revenue Service, Dallas District, 13 FLRA 48 (1983)
 (Proposal 1).  In totally eliminating the Agency's discretion to make
 these necessary judgments relating to work assignment, the proposal
 excessively interferes with management's right under 7106(a)(2)(B) to
 assign work.  American Federation of Government Employees, Local 2185
 and Tooele Army Depot, Tooele, Utah, 23 FLRA No. 25 (1986) (Proposed 1).
 
                                IV.  Order
 
    Pursuant to section 2424.10 of the Authority's Rules and Regulations,
 the Union's petition for review is dismissed.
 
    Issued, Washington, D.C. December 15, 1986.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Union withdrew two other proposals.  They will not be
 considered in this decision.
 
    (2) We hereby take official notice of the decision and record in that
 proceeding.  See section 2429.5 of the Authority's Rules and
 Regulations.  See also Decision and Order on Motion for Reconsideration
 in American Federation of Government Employees, Local 1760, AFL-CIO and
 Department of Health and Human Services, Social Security Administration,
 15 FLRA No. 172 (1985), issued June 19, 1985, Report of Case Decisions,
 Number 308.