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Demand to Bargain Permissives
Updated On: Feb 09, 2021

From: Ralph C de Juliis
Date: February 8, 2021 at 9:29:56 PM CST
To: "Sullivan IV, Joseph" 
Cc: Pete Harris 
Subject: Demand to Bargain Permisives

Good Evening, Associate Commissioner Sullivan!

First and foremost, as we discussed with you personally via our telephone call the other day, we are excited to embark on creating a new relationship with SSA!  As you are fully aware, under the new Executive Orders, Agencies are REQUIRED to bargain with the Union over permission subjects of bargaining, which is a very broad range of subjects.  We would like to start that process sooner, rather than later.  Therefore, please consider this a request to bargain in accordance with 5 USC 7106(b)(1).

I note that permissive topics are quite broad, I have quoted several topics below from the FLRA Guide, https://www.flra.gov/system/files/webfm/Authority/NG%20Forms%2C%20Guide%2C%20Other/Negotiability%20Guide%204-22-13.pdf

Permissive subjects, 5 U.S.C. § 7106(b)(1); 5 C.F.R. § 2424.25(a).

Section 7106(b)(1) - Numbers, Types, and Grades of Employees or Positions Assigned to Any Organizational Subdivision, Work Project, or Tour of Duty

A non-exhaustive list of proposals and provisions that the Authority has found to be procedures includes proposals or provisions that:

ï‚· supervisory and managerial conditions of employment, e.g., NAGE, Local R1-109, 61 FLRA 588, 590-91 (2006);

employment are permissive subjects of bargaining. NATCA, Rochester Local, 56 FLRA 288, 291 (2000) (citing AFGE, Local 3022, 52 FLRA 677, 682 (1996) (AFGE)).

ï‚· Required advance notice of agency actions or specific events, e.g., Local 12, 61 FLRA at 220;

ï‚· Prescribed how management would select employees for assignments, as long as management preserved the right to determine that the available employees were equally qualified, e.g., AFGE, Council 215, 60 FLRA 461, 467 (2004); U.S. Dep’t of Transp., FAA, 63 FLRA 502, 503 (2009); U.S. Dep’t of the Navy, Supervisor of Shipbuilding, Conversion & Repair, Gulf Coast, Pascagoula, Miss., 62 FLRA 328, 330 (2007); SSA, Chi. N. Dist. Office, 56 FLRA 274, 277 (2000);

ï‚· Required management to take certain actions, as long as the proposals or provisions did not specify the particular persons or positions who would take the actions, e.g., AFGE, Council 220, 65 FLRA 726, 728 (2011) (Council 220); NAIL, 62 FLRA 1, 3 (2007); NLRB, Wash., D.C., 61 FLRA 154, 161 (2005);

ï‚· Established advisory committees involving union participation that were outside, or were not an integral part of, management’s decision-making process relating to the exercise of its rights under § 7106, e.g., NAIL, 62 FLRA at 3;

ï‚· Required management to delay exercising its rights pending the completion of bargaining or applicable appellate processes, e.g., Antilles Consol. Educ. Ass’n, 61 FLRA 327, 331-33 (2005) (Chairman Cabaniss dissenting in part) (ACEA);

ï‚· Established the procedures that management would observe in developing and implementing performance standards, e.g., Council 220, 65 FLRA at 728-29; POPA, 47 FLRA 10, 65-66, 70-71 (1993);

ï‚· Set forth the procedures that management would use in announcing or filling vacancies, e.g., Local 3354, 54 FLRA at 814-15;

ï‚· Required management to maintain, or show to employees, certain documentation, e.g., NTEU, 47 FLRA 705, 718-20 (1993) (requiring agency to share documentation supporting performance appraisals and ratings); POPA, 48 FLRA 129, 154, 157-58 (1993) (requiring agency to maintain record of time employees spent doing certain work, and to provide union with detailed reports of certain employee errors);

ï‚· Required an agency to complete the disciplinary process in a timely manner, but did not prescribe the consequences for the agency’s failure to do so (and did not prevent the agency from acting on the underlying disciplinary matter), e.g., NFFE, Local 1438, 47 FLRA 812, 816-18 (1993);

ï‚· Required management to evaluate employees’ work products at the completion of each assignment, e.g., POPA, 47 FLRA at 54;

ï‚· Established the procedures governing the imposition of drug tests on employees, if the procedures did not affect the agency’s decision to require employees to undergo random or reasonable-suspicion

At this point in time, AFGE Council 220 does not wish to jump into the deep end of the pool of permissive subjects because we would be overwhelmed. We want to ease ourselves into the shallow end of the pool of permissive subjects. Therefore, at this point, we are only seeking the bargain the following:  

Customer Service Representatives Should be Rated as GS-9 Employees

First the Customer Service Representatives MUST be upgraded. They are underpaid and their turnover rate is high, especially in the Teleservice Centers in large metro areas.  It just makes good business sense! As a follow up on that, we maintain that all Customer Service Representatives should be graded as a GS-9, and lead CSR’s should be GS-10’s. Again, it make good business sense because the Agency has more flexibility with work assignments!   This is permitted under 5 U.S.C. § 7106(b)(1); 5 C.F.R. § 2424.25(a).

Documentation with Respect to Appraisals

Second, to require management to maintain and provide all documents to the Union which management considers when appraising employees in their performance appraisals; including but not limited to, all the documentation sources listed in each employee’s performance expectations. If it has not been maintained in each employee’s SF-7B Extension Files and share timely with employees, it can NOT be considered or used in performance appraisals. Management will provide each employee in writing at the start of the appraisal year the workload, unit, office goals as well as the supervisor’s expectation of “fair share”. Management no later than November 30 of each year will provide the Union with redacted copies of the narrative justification for every Level 5 rating in each performance element of all standard positions in the bargaining unit so that the Union can monitor fairness and equity.

According to the FLRA, an arrangement such as described above is appropriate, See, NTEU, 47 FLRA 705, 718-20 (1993) (requiring agency to share documentation supporting performance appraisals and ratings)

Current Employees Will be Given Preference for External Hiring Positions.

Management will notify all employees of external hiring. Management will allow current employees to apply for such positions as lateral reassignments. Management will select qualified lateral reassignment employees before hiring externally.

Proposals such as this have been found to be acceptable by the FLRA.  SeeLocal 3354, 54 FLRA at 814-15.

Management Will Be Required to Interview All Candidates on a BQL and a Union Observer Will be present at Every Interview.

The Union will be invited to be an observer for all interviews of external candidates and will be introduced to the employee being interviewed as the Union representative.  Management will still have the final say in who is hired, etc.  But a Union designee will be part of the interviewing team, and provide suggestions on who they think should be hired. This will increase transparency in the hiring process and provide for more buy-in of selections made.  We feel this will save costs as less litigation will be filed.

Proposals such as this have been found to be acceptable by the FLRA.  SeeLocal 3354, 54 FLRA at 814-15.

Management Will Provide to the Union Documents with Respect to Hardship Reassignments.

Regarding Hardship Reassignments, the Union will be provided redacted copies of all hardship requests, management requests for additional information and management decisions so that the Union can monitor basic fairness and equity in the process.  When an employee applies for a hardship, the information will be shared with the Union and management will not hardship the employee unless the Union agrees.

We previously had this arrangement via an MOU, and it worked excellent, was transparent, and furthered good labor management relations.  We would like to return to this.

Conclusion

The Union looks forward to working with you to make SSA a place where employees enjoy coming to work and can pride in the great service they provide the public!!  Please let us know when you can further discuss bargaining these topics with the Union.

Ralph


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