[ v24 p470 ]
The decision of the Authority follows:
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.