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58 FLRA No. 63
OF GOVERNMENT EMPLOYEES,
SSA GENERAL COMMITTEE
SOCIAL SECURITY ADMINISTRATION
DECISION AND ORDER ON A
December 24, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal relating to an e-mail pilot program. The Agency filed a statement of position to which the Union filed a response. The Agency did not file a reply to the Union's response.
For the reasons that follow, we find that the proposal is negotiable at the election of the Agency.
The Agency initiated a project designed to test technology in an effort to fulfill its mission more efficiently. As part of the project, the Agency proposed an e-mail pilot program to be conducted by several of its components, but not the field office component. The pilot program involves the use of e-mail to respond to Internet inquiries submitted by the public. The Union submitted a proposal to include the field office component as a participant in the pilot program. This appeal involves the negotiability of that proposal. [n2]
III. The Proposal
Field Office participation in the E-mail pilot shall be through one virtual office in each of 8 regions.
IV. Meaning of the Proposal
According to the post-petition conference summary, the proposal "expands participation in an E-mail pilot program to 8 field office locations, one each in 8 of 10 Regions." Post-Petition Conference Summary at 2.
V. Positions of the Parties
The Agency argues that the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute because it requires the Agency to assign "some of this work to the field office employees [even though] the Agency has determined that it is not operationally efficient . . . to do so." Statement of Position at 9. The Agency further contends that the proposal affects management's right to determine its organization under § 7106(a)(1) because it dictates which components of the Agency will participate in the pilot program.
In addition, the Agency contends that the proposal is not a procedure under § 7106(b)(2) because it affects management's rights under section 7106(a) and provides "no true procedures." Id. at 10. The Agency also asserts that the proposal is not an appropriate arrangement under § 7106(b)(3) because there is "no evidence . . . that field [office] employees will be adversely affected" by not receiving the work associated with conducting the pilot program. Id. at 5. In this regard, the Agency states that it is conducting the pilot program to gather data and that it has not "ruled out" assigning this work to the field offices in the future. Id. at 6.
Citing SSA, 31 FLRA 1110 (1988), the Union asserts that the right to assign work does not include the [ v58 p274 ] right to determine precisely where work will be performed unless an agency establishes a clear relationship between the job location and mission accomplishment. The Union also asserts that the proposal "concerns § 7106(b)(2) issues" and is negotiable under § 7106(b)(3) because it would alleviate the adverse effect on the field office component that results from being excluded from participating in the pilot program. Response at 4. In this regard, the Union asserts that the field office component currently performs similar work to that tested by the pilot program, and that if it is not allowed to "compete with the other components" to demonstrate that it can continue to perform this type of work after completion of the pilot program, then the Agency will remove this function from the field office component. Id. This, according to the Union, will result in a future reduction of staff due to "lack of work." Id. at 13. Finally, the Union claims that the pilot program introduces new technology and that the proposal does not "excessively interfere with the methods and means of doing work." See id. at 3-4.
VI. Analysis and Conclusions
A. Analytical framework for resolving negotiability
disputes under § 7106(a) and (b) of the Statute.
In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain. Then, if necessary, the Authority will address those claims that would determine if a proposal is electively negotiable. [n3] See, e.g., NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998). Consistent with this sequence, we first consider whether the proposal comes within the terms of § 7106(a).
B. The proposal affects management's right to assign work and determine its organization.
The right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). Here, the Union's proposal would require the Agency to assign work associated with the pilot program to the field office component despite the Agency's determination that the work would be more efficiently accomplished in other components. As such, the proposal affects the Agency's right to determine to whom or what positions various duties are assigned. Accordingly, we find that the Union's proposal affects management's right to assign work.
The Union does not dispute the Agency's claim that the proposal affects management's right to determine its organization under § 7106(a)(1). Moreover, the Authority has found that management's right to determine its organization under § 7106(a)(1) encompasses the right to determine the geographical locations in which an agency will conduct its operations, and how various responsibilities will be distributed among the agency's organizational subdivisions. See, e.g., AFGE, Local 1336, 52 FLRA 794, 802-03 (1996). Accordingly, as the proposal would dictate how the Agency distributes the responsibility of conducting the pilot program among its components, we find that it also affects management's right to determine its organization.
C. The proposal does not constitute a procedure under
Section 2424.25(c)(1)(ii) of the Authority's Regulations provides that a union's response to an agency's statement of position "must state the arguments and authorities supporting . . . any assertion that an exception to management rights applies, including . . . [w]hether and why the proposal" constitutes a procedure. Here, the Union's assertion that the proposal constitutes a procedure is not supported by any arguments, citations, or explanations. In this regard, the Union's response simply states that the proposal "concerns [§] 7106(b)(2) issues." Response at 4. Accordingly, we find that the Union's assertion provides no basis for concluding that the proposal is within the duty to bargain under § 7106(b)(2) of the Statute. See AFGE, Local 2280, Iron Mountain, Mich., 57 FLRA 742, 743 n.3 (2002).
D. The proposal does not constitute an appropriate
arrangement under § 7106(b)(3).
In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines [ v58 p275 ] whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns do not constitute arrangements. See NTEU, 55 FLRA 1174, 1187 (1999).
In addition, the claimed arrangement must also be sufficiently "tailored" to compensate those employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., NAGE, Local R1-100, 39 FLRA 762, 766 (1991). If the proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.
The Union does not offer any evidence that it is reasonably foreseeable that locating the pilot program in components selected by the Agency will result in a future reduction of staff in the field office component. In particular, there is no evidence that conducting the pilot program will result in the removal of any work from the field offices. In addition, there is no basis to conclude that the pilot program is a competition among the components to determine where the work tested by the pilot program would be performed most efficiently. To the contrary, the Agency states that the purpose of the pilot program is to gather data to determine the workload associated with implementing new technology, and that it has not "ruled out" eventually assigning the field office component this work. Statement of Position at 6. In these circumstances, we conclude that the adverse effect asserted by the Union is speculative and, as a result, the proposal does not constitute an arrangement under § 7106(b)(3) of the Statute. See AFGE, Local 3529, 56 FLRA 1049, 1051-52 (2001) (dismissing petition for review where union's asserted benefits to bargaining unit members were speculative).
E. The proposal concerns a matter that is negotiable
at the election of the Agency under § 7106(b)(1) of
The Union asserts that: (1) the pilot program introduces new technology and (2) the proposal does not excessively interfere with the methods and means of doing work. Although the latter assertion is not clear, we construe both as assertions that the proposal is electively negotiable under § 7106(b)(1) because it concerns the technology, methods, and means of performing work.
Under the Authority's longstanding test to determine whether a proposal concerns the technology used in performing work under § 7106(b)(1), a party must show: (1) the technological relationship of the matter addressed by the proposal to accomplishing or furthering the performance of the agency's work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. [n4] See AFGE, Local 1122, 47 FLRA 272, 278 (1993); AFSCME, AFL-CIO, Local 2477, et al., 7 FLRA 578, 584 (1982) (Proposal X). [n5]
In this case, the pilot program introduces new technology, which, in turn, will assist the Agency in fulfilling its mission more efficiently. See Statement of Position at 4. The proposal modifies the pilot program by requiring that it be distributed among different types of offices rather than being centrally located. Therefore, the Union has established a technological relationship between the subject matter of the proposal and the accomplishment or the furtherance of the performance of the Agency's work. As to the second prong, by requiring the Agency to alter its distribution of responsibility for conducting the pilot program, the proposal interferes with the Agency's decision to not include the field office component as a participant in the pilot program. Accordingly, we find that the proposal concerns "technology" within the meaning of § 7106(b)(1) of the Statute and is negotiable at the election of the Agency. In view of this, we do not address whether the proposal concerns the methods and means of performing work.
The proposal is negotiable only at the election of the Agency.
File 1: Authority's Decision in 58 FLRA No.
File 2: Chairman Cabaniss Opinion
Footnote # 1 for 58 FLRA No. 63 - Authority's Decision
Footnote # 2 for 58 FLRA No. 63 - Authority's Decision
The parties originally filed a request for assistance with the Federal Service Impasses Panel (Panel), which declined jurisdiction on the basis that questions concerning the Agency's duty to bargain over the Union's proposal would have to be resolved before it could proceed to the merits of the impasse. The Panel did, however, order the Agency to maintain the "status quo" regarding implementation of the pilot program while the Union pursued a negotiability appeal with the Authority. We have been administratively advised that the Union filed an unfair labor practice (ULP) charge alleging that the Agency violated § 7116(a)(6) of the Statute by failing to comply with the Panel's order. See § 2429.5 of the Authority's Regulations. As the ULP charge is not directly related to the petition for review in this case, the resolution of this negotiability appeal is appropriate. See § 2424.30(a) of the Authority's Regulations.
Footnote # 3 for 58 FLRA No. 63 - Authority's Decision
The Agency claims that because the dominant requirement of the proposal concerns a § 7106(a) right, the proposal is not electively negotiable even if it concerns a matter under § 7106(b)(1). See Statement of Position at 10. However, the dominant requirement test applies to proposals that impose two or more distinguishable but inseparable requirements. See AFGE, Local 1336, 52 FLRA 794, 798-800 (1996). Here, the proposal imposes only one requirement: that the Agency include the field office component in the pilot program. Therefore, the dominant requirement test is not implicated. See NAGE, Local R14-23, 54 FLRA 1302, 1306 (1998).
Footnote # 4 for 58 FLRA No. 63 - Authority's Decision
We note that the decisions establishing this test all involved agency assertions that proposals concerned the technology used in performing work, and that in this case, the assertion that the proposal concerns technology has been raised by the Union. However, as neither party has questioned the viability of this precedent, we apply the existing test and leave the consideration of its continuing viability for an appropriate case or other proceeding. See AFGE, Local 3807, 54 FLRA 642, 653 n.7 (1998).
Footnote # 5 for 58 FLRA No. 63 - Authority's Decision
Member Pope notes that there is no claim, and no other reason to conclude, that there are separate lines of precedent regarding this matter. While NTEU, Chapter 229, 22 FLRA 698, 699 (1986), cited in the concurrence, states the test for resolving a claim under § 7106(b)(1) somewhat differently, it cites a decision (AFGE, Local 644, 15 FLRA 902, 903 (1984)) that applies the same two-prong test applied here. In addition, the two-prong test predated NTEU, Chapter 229, and there is no indication in that decision, or subsequent ones, that any deviation from the test was intended.