39:0258(17)CA - - HHS, SSA, Baltimore, MD and AFGE - - 1991 FLRAdec CA - - v39 p258
[ v39 p258 ]
The decision of the Authority follows:
39 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
January 31, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority' Rules and Regulations, based on the parties' stipulation of facts. The parties have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over a proposal submitted by the Union and by implementing a change in conditions of employment of bargaining unit employees prior to completing bargaining with the Union over the impact and implementation of the assignment of new duties.
For the reasons discussed below, we find that the proposal submitted by the Union is nonnegotiable and that the Respondent's rejection of the proposal and implementation of the change did not violate the Statute.
The Union is the exclusive representative in a nationwide consolidated unit of Respondent's employees, which includes employees assigned to the Respondent's San Diego, California District Office. Stipulation at 2. At all times material to the dispute, a collective bargaining agreement existed between the Respondent and the Union that covered the employees in the consolidated unit. Id.
By letter dated April 20, 1988, the Respondent notified the Union of its intent to make changes in work assignments for bargaining unit employees holding the position of Title XVI Claims Representative (T-16 CR) in the San Diego District Office. Id. at 2 and Exhibit 2. The letter stated that the T-16 CRs would be responsible for doing computations on One Time Payments (OTP) and Force Pay cases, as well as completing Form SSA-450S for all initial claims and T-30 cases. Id.
The new duties had previously been performed by employees assigned to the position of Title 16 Data Review Technician (DRT). Stipulation at 5. The DRT position was being phased out, eliminating all DRTs in the San Diego District Office; their workload was being absorbed by the T-16 CRs. Id. The absorbed duties included completing SSA 450S and T-30 forms and computing OTP and Force Pay cases. Id. at 4. The 450S form, which is "an input document" used to put a case into the computer, can be completed in three to five minutes. Id. The number of 450S forms that must be completed by a T-16 CR varies from 10 to 30 per week. A T-30 input form is required when a case is terminated and restarted as a new record and takes approximately five minutes to complete. A T-30 form frequently accompanies an OTP or Force Pay case. An OTP case, which involves a one-time payment to a recipient as opposed to regular monthly payments, is handled 2 to 3 times a month. A Force Pay case, which requires the T-16 CR to "force" the computer to accept the request for payment, is required approximately once a quarter. An OTP or Force Payment case may take ten minutes to two hours to complete. Id.
After the change, T-16 CRs remained responsible for assuring the timely and accurate completion of claims under their existing generic job tasks (GJTs), which were in effect before April 20, 1988. Id. at 5. The parties stipulated that the implementation of the new duties for the T-16 CRs had more than a de minimis impact on affected unit employees. Id.
The Union responded to the notice of the implementation of new duties in a letter dated April 26, 1988 to the Agency requesting the Agency to bargain over the impact and implementation of the proposed changes. Id. at 3 and Exhibit 3. The letter further stated that "[y]ou may not implement your proposed changes until we have bargained to agreement." Id. at Exhibit 3. In a letter dated May 3, 1988, the Union forwarded to the Agency its proposed ground rules and a "counter" proposal which stated:
The T16 CR's [sic] will not be held responsible in their audits, progress reviews and appraisals over their changing workload assignments until 30 days after management informs them exactly what their duties and workflow are in writing.
Id. at 3 and Exhibit 4. In response, the Agency advised the Union in a letter dated May 10, 1988 that it was not obligated to bargain over the evaluation process. Id. at 3 and Exhibit 5. The letter further stated that the changes in assignments would be "implemented May 13, 1988, for computation purposes and May 18, 1988 for SSA-450S completion." Id. The Union did not respond to this letter and did not submit any additional proposals. Nor did the parties meet concerning the proposal. Id. at 3.
In April and May, 1988, T-16 CRs were given training on the new duties. Id. On May 20, 1988, employees were provided with the new written work flow chart and, on or about May 23, 1988, the new duties were implemented. Id.
III. Positions of the Parties
A. General Counsel
The General Counsel argues that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to meet with the Union to negotiate regarding the Union's proposal. The General Counsel asserts that the proposal does not interfere with management's right to assign work, direct employees or evaluate employees and, thus, is negotiable. In support, the General Counsel argues that under the proposal: 1) the Respondent may eliminate the 30-day grace period by informing employees of their new duties and distributing the work flow chart more than 30 days before implementing the changes; 2) the Respondent may assign the new work and the employee must complete the work; 3) the length of the grace period is significantly shorter than in cases previously decided by the Authority; and 4) the speed with which an employee masters the new assignment within the first 30 days is not included in the elements and standards for this position. With regard to the requirement that the Respondent provide employees with their duties and workflow in writing, the General Counsel argues that the proposal is a negotiable procedure. In sum, the General Counsel asserts that the proposal "is a reasonable proposal which specifically addresses the impact of the new duties on the affected employees." General Counsel's Brief at 9.
The General Counsel requests that the remedy include an order requiring the Respondent to bargain with the Union over the impact and implementation of the new duties. Additionally, the General Counsel requests that the Respondent be required to post a Notice to Employees identifying the violations of the Statute and the remedial action to be taken.
The Respondent contends that it did not refuse to bargain in good faith prior to implementing the change in conditions of employment. The Respondent maintains that the Union's proposal is not within the duty to bargain because it interferes with management's right to direct employees and assign work. Specifically, the Respondent asserts that the proposal is not a negotiable procedure under section 7106(b)(2) of the Statute because it substantively interferes with management's right to determine performance standards by preventing management from evaluating employees and determining the extent to which employees are able to master new job duties. In support, the Respondent relies on the decision of the U.S. Court of Appeals for the Fourth Circuit in Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986) (Social Security Administration) and several Authority decisions.
The Respondent further contends that the General Counsel failed to meet the threshold requirements set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), (Kansas Army National Guard) to establish that the proposal was an appropriate arrangement under section 7106(b)(3) of the Statute. It contends that the General Counsel failed to "identify the management right or rights claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Respondent's Brief at 8, quoting Kansas Army National Guard, 21 FLRA at 31.
Even assuming that the record is sufficient to determine whether the proposal constitutes an appropriate arrangement for adversely affected employees, the Respondent contends that proposals intended to mitigate the adverse effects on employees of being required to perform additional duties cannot be appropriate arrangements. It cites in support of this proposition the court's decision in Social Security Administration and the Authority's decisions in National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62 (1988) and Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700 (1987) (Overseas Education Association).
Finally, the Respondent argues that the proposal excessively interferes with management's right to direct employees and assign work because it would prescribe that certain data cannot be used at all in evaluating employees if management does not give employees 30 days' written notice of the new duties.
Based on these arguments, the Respondent contends that the proposal is not within the duty to bargain and that the Respondent, therefore, did not violate the Statute by not bargaining with the Union over its proposal. The Respondent requests the Authority to dismiss the complaint.
IV. Analysis and Conclusions
Generally, absent a clear and unmistakable waiver of bargaining rights, an agency must afford the exclusive representative of affected employees notice of proposed changes in conditions of employment in the bargaining unit and an opportunity to bargain over those aspects of the changes that are negotiable. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 33 FLRA 454, 458 (1988) (Department of Health and Human Services). An exception applies in circumstances where bargaining extends to the impact and implementation of the changes and the changes are so insignificant that no obligation to bargain is created. Id. at 458; Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986).
Where a bargaining obligation arises by virtue of an agency changing conditions of employment, the Agency is required to bargain only over negotiable proposals addressing those changes. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 656 (1988). Where a union submits bargaining proposals and an agency refuses to bargain over them based on the contention that they are nonnegotiable, however, the agency acts at its peril if it then implements the proposed change in conditions of employment. If the union's proposal is held to be negotiable, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute by implementing the change without bargaining over the negotiable proposal. See, for example, United States Department of the Treasury, Internal Revenue Service, Dallas District, 19 FLRA 979 (1985).
Here, the parties have stipulated that the effect of the change on conditions of employment of bargaining unit employees was more than de minimis. Stipulation at 5. Therefore, the change gave rise to an obligation to bargain over negotiable proposals addressing that change.
For the reasons stated below, we find that the Union's proposal is nonnegotiable because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and it is not an appropriate arrangement under section 7106(b)(3) of the Statute.
A. The Proposal Directly Interferes with Management's Right to Direct Employees and Assign Work
The proposal precludes the Respondent from holding employees responsible "in their audits, progress reviews and appraisals over their changing workload assignments until 30 days" after management informs them of their duties in writing. Stipulation at Exhibit No. 4. The General Counsel interprets the proposal to "require Respondent to give the affected employees a thirty[-]day grace period before evaluating their performance of the new job duties." General Counsel's Brief at 6.
Proposals that limit management's ability to evaluate employees for a specified time and do not permit management to appraise employees on their ability to master new job requirements directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Department of Health and Human Services, 33 FLRA at 464-65; American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 720 (1987) (OPM) (Proposal 4, part (b), which prohibited management from charging errors within the first 30 days of the issuance of written guidance, directly interfered with management's rights to direct employees and assign work); and American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160 (1987) (SSA) (Provision 7, which limited management's ability to evaluate employees during the first 120 days after a reassignment, directly interfered with management's rights). In finding that Provision 7 in SSA directly interfered with management's rights, the Authority noted that broadly worded provisions that restrict management's ability to evaluate employees do not merely postpone management's evaluation of employees performance of new duties. Rather, by precluding any evaluation of employees during a preliminary "training" period, such proposals do not permit management to appraise employees on their ability to master new job requirements. Id. at 170.
Similarly, the proposal here precludes management from evaluating employees until 30 days after providing written notice of the duties and work flow and, thus, directly interferes with management's right to direct employees and assign work. Accordingly, we find that the proposal is not a negotiable procedure under section 7106 of the Statute. Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d at 326-27; and Social Security Administration, 28 FLRA at 170.
In finding that the proposal directly interferes with management's rights, we have considered the General Counsel's contention that the Respondent is not precluded from evaluating employees' performances immediately if written notice of the proposed new duties is provided 30 days prior to implementing the change. However, we find that the argument is not persuasive. The circumstances suggested by the General Counsel assume that the Agency will always have 30 days' notice of the need or desire to change bargaining unit employees' duties. To the extent that the Agency does not have 30 days' notice, the proposal would preclude the Agency from evaluating employees on any new duties during that period. Therefore, as the proposal would dissuade Respondent from assigning employees any new duties during this period because the Respondent would be precluded from evaluating them on those duties, it interferes with management's right to assign work. See National Federation of Federal Employees, Local 943 and Department of the Air Force, Headquarters Kessler Technical Training Center, Kessler Air Force Base, Mississippi, 19 FLRA 949 (1985) (Proposal 1, by restricting management's ability to assign work under specified circumstances, directly interfered with management's right to assign work).
In addition, the General Counsel's reliance on the Authority's decision in National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94 (1987) (Provision 4) is misplaced. The provision found negotiable in that case provided employees a specified time to bring performance to a satisfactory level. Significantly, in contrast to the proposal in this case, the Authority noted that nothing in the express language or the record indicated that an employee's performance during the "grace period" could not be evaluated or viewed as the basis for a performance based action. 29 FLRA at 104. Further, the Authority found that the length of the period required by 5 U.S.C. º 4302(b)(6) to give an employee an opportunity to demonstrate acceptable performance before a performance based action can be initiated under 5 U.S.C. º 4303 may be negotiated. Id. at 103-04. Clearly, that case, which involved management's right to discipline employees, does not control in this instance.
Based on the foregoing, we conclude that the proposal is outside the duty to bargain unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.
B. The Proposal Does Not Constitute an Appropriate Arrangement
The Respondent argues that proposals intended to mitigate the adverse effects on employees of performing additional duties can not be an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, based in part on the Authority's decision in Overseas Education Association. However, the U.S. Court of Appeals for the District of Columbia Circuit denied enforcement to Overseas Education Association and other determinations by the Authority that proposals concerned with matters affecting job requirements did not qualify as appropriate arrangements under section 7106(b)(3) of the Statute. Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989) (OEA), on remand, 39 FLRA No. 10 (1991) (OEA II). The court held that under section 7106(b)(3) an "adverse effect" may flow from the exercise of any management right, and should not be restricted to situations where new job requirements are being applied to employees through "unfavorable job actions such as removals, demotions and reductions in pay." Id. at 965. The court stated that the Authority erred because it "never measured the impact of management's changes upon the unit employees[,]" and remanded the cases before it to the Authority to consider the facts bearing on whether the job requirements in question constituted appropriate arrangements under Section 7106(b)(3) of the Statute. Id. at 973-74.
Based on the decision in OEA, the Authority now determines whether proposals are appropriate arrangements for employees adversely affected by changes in job requirements by "examin[ing] the relevant facts to measure the impact of management's imposition of, or changes in, job requirements of unit employees to determine whether the employees are adversely affected by the exercise of management's right to assign work." West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990) (West Point). See also OEA II. In this regard, we apply to these cases the analysis established in Kansas Army National Guard. Id.
Under the analytical framework set forth in Kansas Army National Guard, the Authority first determines whether, as a threshold matter, a proposal is an arrangement for employees adversely affected by management's exercise of its rights. This is accomplished by examining the record to determine how employees may be detrimentally affected by management's exercise of its rights and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of management's actions. 21 FLRA at 31. In so doing, we look to "the effects or foreseeable effects on employees" from management's actions, and we exclude "purely speculative or hypothetical concerns[.]" West Point, 34 FLRA at 1012. Once the proposal is determined to be an arrangement, the Authority determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. This is accomplished by weighing the competing practical needs of employees and management. Id. at 31-32.
Initially, we conclude that the record establishes that the assignment of additional duties to the T-16 CRs had a detrimental effect on those employees. (*) They were
required to fill out two additional forms in the processing of claims, one of which, the 450S form, could account for more than two hours of work per week. The additional duties also included performing computations for two additional
types of claims, which could take up to two hours per case to complete. Although the T-16 CRs had not performed these job duties before, they were to be held accountable under the existing performance appraisal system for their ti