[ v19 p827 ]
19:0827(101)CA
The decision of the Authority follows:
19 FLRA No. 101
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION, REGION V
CHICAGO, ILLINOIS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3239, AFL-CIO
Charging Party
Case No. 5-CA-699
DECISION AND ORDER /1A/
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, except as modified
herein.
The complaint, in essence, alleges that the Respondent, Department of
Health and Human Services, Social Security Administration, Region V,
Chicago, Illinois (SSA), violated section 7116(a)(1) and (5) of the
Statute by changing bargaining unit employees' conditions of employment
without notifying the Charging Party, the American Federation of
Government Employees, Local 3239, AFL-CIO, and providing it with the
opportunity to request negotiations concerning the procedures to be
observed and the appropriate arrangements for employees adversely
affected by the change.
The Judge recommended dismissal of the complaint. The Authority
agrees but for different reasons which follow.
The facts here presented indicate that the Charging Party represents
various employees of SSA's Region V including claims representatives
located in the Detroit Southwest Branch Office, the Pontiac District
Office and the Royal Oak Branch Office. These employees are part of a
nationwide consolidated bargaining unit represented by the American
Federation of Government Employees, AFL-CIO. The circumstances giving
rise to the alleged unfair labor practice herein arose out of a decision
by the State of Michigan, Department of Social Services (DSS), to
require 6,000 of its disability claimants, previously denied
Supplemental Security Income benefits by SSA, to refile for the SSA
benefits. Representatives of DSS and SSA met and worked out some
procedures for processing the cases involved in the "DSS Referral
Program." These procedures were sent out to all the SSA District Offices
in Michigan. It was decided at certain SSA offices that it would be
more expeditious to have the SSA claims representatives travel to the
local DSS office to interview the claimants following the DSS interview.
Thus, certain claims representatives at the above-mentioned offices
were required to travel to and work in local DSS offices for short
periods of time. This requirement that unit employees travel to and
perform work in DSS offices is alleged to constitute the change in
conditions of employment giving rise to a duty to bargain procedures and
appropriate arrangements.
The record further indicates that there are approximately twenty-one
claims representatives employed at the three offices involved herein.
Of that number, five or six employees were actually engaged in traveling
to and interviewing claimants at local DSS offices. More specifically,
of the four claims representatives at the Detroit Southwest Branch
Office, one employee made four separate visits over the course of about
five weeks to the DSS office, located approximately four miles from the
SSA office, and on one additional occasion, two of the four employees
visited the DSS office. At the Pontiac District Office, one of the five
claims representatives employed at that time made six separate trips to
the DSS office over the course of several months; the other four were
not required to do so at all. The DSS office is located a few miles
from the SSA office. At the Royal Oak Branch Office, two of the twelve
claims representatives alternated going to the DSS office on six
occasions; the other ten did not go there at all. The distance between
the DSS and SSA offices is six or seven blocks. The parties agreed that
the work performed by these employees at the DSS offices was
substantially the same as the work performed at the SSA offices. In
fact, the working environment at one DSS office was quite similar to
that of the SSA office. The record also indicates that, on the days
when claims representatives were scheduled to visit DSS offices, they
reported first to the SSA office and then returned to the SSA office at
the end of the day. Travel expenses incurred by the employees were paid
by SSA. As is evident from the record, claims representatives are
expected to travel and have traveled to other locations to perform their
duties. In terms of how the travel issue has been treated in the past,
the record indicates that, at the Detroit Southwest Branch Office, there
was a practice of rotating travel and posting travel schedules.
Whenever there was a two-to-four month break between schedules, the
Charging Party was consulted on the new schedule.
The Respondent alleged, and the Judge found, that the changes did not
have a substantial enough effect on unit employees to require
bargaining. The Authority has previously held that "where an agency in
exercising a management right under section 7106 of the Statute, changes
conditions of employment of unit employees . . . , the statutory duty to
negotiate comes into play if the change results in an impact upon unit
employees or such impact was reasonably foreseeable." U.S. Government
Printing Office, 13 FLRA 203, 204-05 (1983) (Issued subsequent to the
Judge's decision herein.). The Authority thereafter held in Department
of Health and Human Services, Social Security Administration, Chicago
Region, 15 FLRA No. 174 (1984), that "no duty to bargain arises from the
exercise of a management right that results in an impact or a reasonably
foreseeable impact on bargaining unit employees which is no more than de
minimis." In order to determine whether the exercise of a management
right will result in a change in a condition of employment having an
impact or a reasonably foreseeable impact on bargaining unit employees
which is more than de minimis, the totality of the facts and
circumstances presented in each case must be carefully examined.
In the instant case, and for the reasons which follow, I find that
the impact or reasonably foreseeable impact of the change on unit
employees' conditions of employment was no more than de minimis.
Accordingly, it follows that SSA was under no obligation to notify the
Charging Party and afford it an opportunity to request bargaining
pursuant to section 7106(b)(2) and (3) of the Statute concerning the
procedures to be observed in implementing the change as well as on
appropriate arrangements for employees adversely affected by the change.
In reaching this result, I note with respect to the nature of the
change on conditions of employment of unit employees that the work
duties performed by the affected employees in the DSS offices were
substantially the same as those performed while employees were in the
SSA offices; the DSS offices were located close to the SSA offices with
the distances ranging from six or seven blocks to four miles; the hours
of work of the affected employees appear to have remained unchanged and,
in fact, employees continued to report to their respective SSA offices
at both the beginning and end of the workday; the work environment in
at least one DSS office was similar to that of an SSA office; and
employees were compensated for their travel expenses by SSA. Moreover,
the requirement that employees travel to and perform work in DSS offices
was a short-lived, temporary response to an immediate need to process
6,000 claims, and the affected employees traveled to and worked in the
various DSS offices for periods of time ranging from only one day to a
total of no more than six days. The total number of employees affected
by the change was merely five or six out of a substantially larger
number of employees represented in the nationwide consolidated unit.
Finally, I note that any bargaining which may have occurred between the
parties regarding similar changes in the past was limited to
consultation concerning the posting of new travel schedules.
Based on the totality of the facts and circumstances presented in
this case, and noting particularly the slight nature of the change; the
short-lived, temporary duration of the change; the few employees who
were affected relative to the total number of employees represented in
the consolidated unit; and the absence of any demonstrated bargaining
history or past practice according to which the parties have handled
similar changes in the past, I conclude that the impact or reasonably
foreseeable impact of the change in unit employees' conditions of
employment herein was no more than de minimis. Therefore, SSA was under
no obligation to notify the Charging Party and afford it an opportunity
to request bargaining pursuant to section 7106(b)(2) and (3) of the
Statute.
While giving consideration here to such factors as the nature of the
change (e.g., the extent of the change in work duties, location, office
space, hours, loss of benefits or wages and the like); the temporary,
recurring or permanent nature of the change (i.e., duration and
frequency of the change affecting unit employees); the number of
employees affected or foreseeably affected by the change; the size of
the bargaining unit; and the extent to which the parties may have
established through negotiation or past practice procedures and
appropriate arrangements concerning analogous changes in the past, in
determining that the impact or reasonably foreseeable impact of the
change in conditions of employment of unit employees was no more than de
minimis and therefore did not give rise to a duty to bargain procedure
and appropriate arrangements, it should be noted that such
considerations are not intended to constitute an all-inclusive list.
Further, the determination as to whether the exercise of a management
right under section 7106(a) of the Statute gives rise to a duty to
bargain under section 7106(b)(2) and (3) will not necessarily require in
every case a determination as to whether the exercise of the management
right results in a change in a condition of employment having an impact
or a reasonably foreseeable impact on bargaining unit employees which is
more than de minimis, especially where there is no indication that the
nature and degree of impact is at issue in the case. However, in cases
where it must be determined whether the nature and degree of impact is
more than de minimis, factors such as those listed above will be
considered. The application of these factors is not intended to be
mechanistic. As stated previously, the totality of facts and
circumstances must be examined in each case and other or additional
considerations may be applicable in other factual situations and will be
applied where they are appropriate and relevant to the disposition of
those cases.
Henry B. Frazier III, Acting
Chairman
Concurring Opinion of Member McGinnis:
I concur in the rationale and result reached in Acting Chairman
Frazier's opinion. However, I would like to add some additional points.
In Internal Revenue Service, 17 FLRA No. 103 (1985), petition for
review filed sub nom. National Treasury Employees Union v. FLRA, No.
85-1361 (D.C. Cir. June 14, 1985), a case involving the exclusive
representative's right to initiate bargaining during the term of the
collective bargaining agreement, the Authority noted that Congress
intended the provisions of the Statute be interpreted in a manner
consistent with the requirements of an effective and efficient
Government. /1/ In accordance with this concern, Congress set forth a
list of rights reserved to management in section 7106(a) and (b)(1) of
the Statute. /2/ In this regard Representative Udall stated that it was
the intent of the Committee on Post Office and Civil Service, in
fashioning a labor relations bill, to "navigate a course which gives
Federal employees greater rights in labor relations than they have
heretofore enjoyed. At the same time we have preserved the rights of
management to run the shop." /3/ He later stated that the proposed
legislation "moves to meet some of the legitimate concerns of the
Federal employee unions as an integral part of what is basically a bill
to give management the power to manage and the flexibility that it
needs." /4/
Therefore, while management has certain reserved rights to take
action without being required to bargain with respect to matters falling
within section 7106(a) and (b)(1) of the Statute, the Statute also
provides in section 7106(b)(2) and (3) for bargaining over the
procedures that management will follow in exercising such rights and
appropriate arrangements for employees who may be adversely affected
thereby. /5/
These section 7106(b)(2) and (3) rights may come into play in one of
two ways. First, the exclusive representative may submit proposals
during full scale collective bargaining negotiations regarding the
procedures to be observed and arrangements for employees adversely
affected when management subsequently exercises a section 7106(a) or
(b)(1) right. /6/ Such negotiations have the advantage of providing
clear guidelines in the event of future actions and lead to
predictability and promote a more harmonious labor-management
relationship. Furthermore, it is more efficient to provide, where
possible, procedures for the implementation of future changes than to
await the point when the period for negotiations is constrained by
management's need for action.
Secondly, bargaining obligations may be created when management
exercises its section 7106(a) and (b)(1) rights to change conditions of
employment. Thus, in the absence of negotiated procedures to implement
such changes, management is obligated to notify the exclusive
representative of its decision /7/ and, within the scope of that
particular change, /8/ to bargain upon request over the procedures to be
observed in effectuating the change and regarding appropriate
arrangements for adversely affected employees. /9/ Such bargaining is
limited in its scope to those issues set forth in section 7106(b)(2) and
(3) of the Statute and is distinguishable, as it serves a different
purpose, from negotiations involving changes which are substantially
negotiable.
In reviewing alleged violations of section 7106(b)(2) and (3) rights
in both of the above contexts, the Authority is mindful of the section
7101(b) mandate in the Statute for an effective and efficient
Government. It follows that section 7106(b)(2) and (3) must be
construed so as to permit management to conduct its business generally
without unreasonable impediments. Such an objective cannot be reached
if management must be required to bargain over every decision it makes,
regardless of the impact on unit employees. Decisions are made daily by
every level of management, and if bargaining were required on each and
every decision, Government would grind to a halt. As a means of
providing a rational standard to be applied in such cases, the Authority
has adopted a de minimis test.
In my view, a de minimis change is a change which does not have a
substantive adverse effect upon unit employees. The purpose of the
Authority's de minimis test is to insure that negotiations conducted
pursuant to section 7106(b)(2) and (3) occur in a context that will
promote and facilitate both improved employee performance and morale,
and the efficient accomplishment of the operations of the Government.
Thus the de minimis test must seek to balance the needs of agency
management to make changes in employee working conditions in order to
carry out the day-to-day operations in the Government with the right of
the exclusive representative to negotiate concerning procedures and
appropriate arrangements for employees adversely affected by such
changes. In order to meet these objectives the application of the de
minimis test requires the consideration of certain criteria, five of
which are used in the opinion of the Acting Chairman. We have mutually
agreed to use these criteria, as appropriate, in this and future cases.
These five criteria are:
1. The nature of the change as it affects or foreseeably affects
unit employees, as individuals or as a whole (e.g., the extent of the
change in work duties, location, office space, hours, employment, loss
of benefits and/or wages, etc.);
2. The temporary, recurring or permanent nature of the change (i.e.,
the duration and the frequency with which it affects unit employees);
3. The number of unit employees affected or foreseeably affected by
the change;
4. The size of the bargaining unit;
5. The extent to which the parties may have established, through
negotiation or past practice, procedures and appropriate arrangements
concerning analogous changes in the past.
Moreover, in addition to the five criteria set forth above, I believe
that the parties and Administrative Law Judges of the Authority should
address, in future cases, the issue of whether or not a sixth factor
should be used in those cases wherein there is a de minimis issue:
6. When would the implementation of the change involve or adversely
affect unit employees. That is, if the change is to be implemented in
stages or if there is no initial adverse effect on unit employees from
the implementation of the change, would post implementation bargaining
permit the parties to satisfactorily negotiate appropriate arrangements
for employees adversely affected by the change prior to such effect.
In my view, the type of bargaining envisioned by section 7106(b)(2)
and (3) of the Statute is limited in its scope and purpose and may not
be used to unduly impede the exercise of a management right under the
Statute. Thus in those circumstances where a change has no immediate or
reasonably foreseeable adverse effect on unit employees, it is my view
that Congress did not intend to sanction delay with regard to the
exercise of management rights by requiring delays in the implementation
of such changes. Thus, I would permit management to begin the initial
implementation of a change so long as negotiations within the meaning of
section 7106(b)(2) and (3) of the Statute could be completed prior to
the implementation of that portion of the change which would result in
an adverse effect on employees.
In addition, I would also note that even in those circumstances where
there is a direct and immediate adverse effect on unit employees from
the implementation of the management initiated change, section
7106(b)(2) and (3) negotiations should not be permitted to unduly delay
or impede the implementation of a management decision involving the
exercise of a management right. /10/ As noted, Congress provided that
the Authority must interpret the Statute "in a manner consistent with
the requirement of an effective and efficient Government." /11/ Thus,
where there is timely and sufficient notice furnished to the exclusive
representative and the date of implementation bears a reasonable
relationship to the nature and complexity of the proposed change and
provides for a reasonable period for the completion of negotiations,
negotiations over procedures and arrangements for adversely affected
employees should not be permitted by the Authority to unduly delay the
exercise of management rights. /12/
Therefore, in future decisions and through other administrative
reforms, I will seek to modify the Authority's case law and procedures
in order to insure that the implementation of section 7106(b)(2) and (3)
of the Statute is consistent with the Authority's duty to promote, and
not hinder, an effective and efficient Government.
William J. McGinnis, Jr., Member
Having found, in agreement with the Judge, that SSA did not fail to
meet its duty to bargain in the circumstances of this case and therefore
did not violate section 7116(a)(1) and (5) of the Statute, as alleged,
the Authority shall order that the complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-699 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-699
Daniel H. Green, and
Donald J. Martin,
For the Respondent
Michael A. Guerriero,
For the Charging Party
Charles K. Prock,
Attorney for the General Counsel Federal Labor Relations Authority
Before: Isabelle R. Cappello
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute (hereinafter referred to as the "Statute"), 92 Stat.
1191, Chapter 71 of Title 5 U.S.C. 7101, et seq., and the Rules and
Regulations promulgated thereunder and published in 45 Fed.Reg.
3482-3524 (1/17/80), 5 CFR 241 et seq.
Pursuant to a Charge filed on September 15, 1980, by the American
Federation of Government Employees, Local 3239, AFL-CIO (hereinafter
also referred to as the "Union"), a Complaint and Notice of Hearing was
filed, on December 5, 1980, by the Chicago Regional Director of the
Federal Labor Relations Authority (hereinafter, the "Authority"). The
Complaint alleges that Respondent (also referred to as "SSA"),
commencing in or about June 1980, and continuing to in or about November
1980, committed unfair labor practices, in violation of Sections
7116(a)(1) and (5) of the Statute, /13/ by changing the working
conditions of employees in the bargaining unit of the Union without
prior notice to the Union and an opportunity for the Union to bargain
over the impact and implementation of the change on bargaining-unit
employees. The change was directing Social Security Administration
employees, at its Pontiac District, Royal Oak Branch, and Detroit
Southwest Branch Offices, to travel to offices of the State of Michigan
Department of Social Services (hereinafter, "DSS" offices). Respondent
denies that unfair labor practices have occurred.
A hearing on the matter was held on February 24, 1981, at Detroit,
MI. The parties appeared and put on evidence. Briefs were filed, on
April 7, 1981, by the General Counsel, and on April 10, 1981, by the
Respondent.
On April 20, 1981 the General Counsel filed a Statement in Opposition
to Request for Post-Hearing Judicial Notice. The document at issue is a
letter dated August 7, 1980, from the Chicago Regional Director for the
Authority to the Treasurer, National Counsel of SSA Field Operations
Locals, AFGE, AFL-CIO. The document is a dismissal letter explaining
why a complaint was not being issued on a charge filed by the addressee.
Such letters are required, pursuant to Rules of the Authority (5 CFR
2423.10(b)); and they are available to the public. Respondent attaches
a copy of the document to its brief, and asks that judicial notice be
taken of it. Since the document is in the public domain, judicial
notice of it will be taken. However, insufficient facts are stated in
the letter to allow it to have any precedential value in this
proceeding.
Based upon the evidence of record, my observation of the demeanor of
the witnesses, and the briefs filed, the following findings, conclusions
and recommended order are made.
Findings /14/
1. At all times material herein, prior to August 30, 1979, the
American Federation of Government Employees, Local 3239, has been
certified as the exclusive representative of certain employees of the
SSA at certain offices, including the Pontiac District Office, Royal Oak
Branch Office and Detroit Southwest Branch Office. On August 20, 1979,
these three offices were included in a nationwide, consolidated
bargaining unit represented by the American Federation of Government
Employees, AFL-CIO. Since this time the American Federation of
Government Employees, Local 3239, has been the agent of the American
Federation of Government Employees at, but not limited to, the Pontiac
District Office, Royal Oak Branch Office, and Detroit Southwest Branch
Office of the SSA. The Union is represented, at each office, by an
on-site representative, who holds the title of a Vice President of the
Union. The Union also has executive officers responsible for handling
consultations for the entire bargaining unit. Michael A. Guerriero, as
President of the Union, deals with Donald J. Martin, Area Director of
the area which includes the Detroit Southwest Branch Office, and Robert
L. Clevenger, District Manager of the Pontiac District and the Royal Oak
Branch Offices. The Area Director of the Pontiac and Royal Oak Branch
Offices is a Mr. Balong.
2. The Union represents claims representatives, of which there are
three types: generalists, Title II and Title XVI. Generalists perform
the full range of the job, usually in smaller offices. Title II claims
representatives handle the retirement-disability-survivors program,
which involves payment of benefits and determination of entitlement to
them. Title XVI representatives handle the supplementary security
program, which involves determining eligibility, taking applications for
claims, and determining post-entitlement eligibility. Title XVI claims
representatives usually perform their duties within an SSA office.
However, their job descriptions also call for them to perform their
duties "in contact stations, other temporary locations, or in
institutions, hospitals or other locations." (R 2 and TR 138) Claims
representatives have, occasionally, traveled to personal residences,
nursing homes, and post offices. Since 1976, at the Detroit Southwest
Office, there has been a past practice of rotating travel for claims
representatives; and travel schedules have been posted. Whenever there
was a two, three, or four month break between schedules, the Union was
consulted on the new schedule. For several years at the Pontiac
District Office, a claims representative has been making a weekly trip
to a local DSS office, to pick up information. Until this case arose,
no claims representative has traveled to a DSS office to take
applications.
3. On August 20, Mr. Guerriero first became aware that Title XVI
claim representatives were to be sent to DSS offices. He was so advised
by the on-site representative of the SSA Dearborn Office, who was so
advised by the manager of the Dearborn Office. The assignment to the
DSS offices was to take applications from claimants and was made
pursuant to a so-called "DSS Referral Program." (TR 222) On August 21,
or 22, Mr. Guerriero called Mr. Martin about the matter, as the Dearborn
Office was under Mr. Martin's jurisdiction. Mr. Martin was not too sure
about the matter, but indicated there was such a plan afoot and that
local management was discussing the issue with on-site representatives,
or would before actual implementation. Mr. Martin did not instruct his
managers to have such consultations and explained that, where they
occurred, they were done "as a matter of courtesy" only. (TR 227) No
consultations with the Union occurred at the three SSA offices here
involved.
4. The background of the instant dispute goes back to a period
around November 1979, when the State of Michigan, Department of Social
Services (DSS), advised SSA that it had approximately 6000 disability
cases on its rolls that it wished to have reprocessed by SSA. These
claims for Supplemental Security Income, or Title XVI benefits had all
been previously denied by SSA; and benefits were being paid by the
State of Michigan. Michigan DSS planned to call all of those denied SSA
benefits back into its offices and require them to refile for
Supplemental Security Income (SSI) benefits with SSA. Following this
notification, the SSA and the Michigan DSS met and worked out some basic
procedures for handling these cases. Notification of these procedures
and the upcoming workload was sent to all SSA District Offices in
Michigan. The practice of sending SSA claims representatives to various
Michigan DSS offices arose as the result of local implementation of the
above-referenced procedures. In several of Respondent's offices, where
substantial members of these redetermination cases were to be processed,
it was decided by the local managers that the cases could be handled
more expeditiously if SSA claims representatives would travel to the
local DSS offices and interview the potential claimants there, following
their DSS interviews. The Michigan DSS referrals were going to have to
be processed, either at DSS or SSA offices.
5. It was agreed by the parties that the work performed by the SSA
claim representatives, at the DSS offices, was "substantially the same"
as the work they performed at the SSA offices. (TR 129)
6. To some extent, interviewing applicants at the DSS offices made
the work of the claims examiners easier, in that the DSS office made
appointments for the claimants to come in, with proper documentation,
and had more control over them, as DSS was paying them benefits, and
could withhold them. SSA was not paying benefits to them and had to
write two, three, or four letters to claimants in order to obtain the
necessary documentation. On the other hand, some inefficiencies
resulted from interviewing at the DSS offices. SSA forms and manuals
were not available at the DSS offices and had to be carried over. At
some DSS offices confusion over the role of the claims representatives
occurred. The claims representatives had no supervision at the DSS
offices. When downtime occurred the claims representatives had no other
work to do. There was some delay in processing Title II claims that
could probably have been avoided had the interviews been at the SSA
offices. Claims representatives at the SSA offices experienced some
backlog of persons to be interviewed on the days when a claims
representative was at the DSS office. However, the DSS Referral Program
was bound to increase the number of interviews, so a backlog would have
occurred regardless of the site of the interview being at the DSS, or
the SSA office.
7. Generally, the visits to the DSS offices were on a one-day-a-week
basis. On such days, the claims representatives reported to the SSA
office first, and returned to it before the close of the day. Travel
expenses to the DSS offices were paid by Respondent.
8. There was no evidence that there were any physical hazards or
other type problems at the DSS offices. There was evidence that at one
DSS office the environment was quite similar to that at the Detroit
Southwest Office.
9. At the Detroit Southwest Office, one claims representative went
to a DSS office, under the DSS Referral Program. He made a total of
four trips-- on August 19 and 26, and on September 9 and 23. The DSS
office was about four miles from the SSA office. On one occasion, two
claims representatives, out of the four in the office, made a visit to a
DSS office. At this office, when claims representatives have travel
time, additional time for adjudication is allowed them. The Union's
on-site representative did not become aware of the work being performed
at a DSS office until September 7, when so informed by Mr. Guerriero.
She did not request consultation as to the DSS visits.
10. At the Pontiac District Office, one claims representative made
six tripe to the Pontiac DSS Office-- on May 7 or May 9, June 10, July
7, August 27, September 24, and on one occasion in November or December.
The DSS office is a couple of miles from the SSA office. There was a
total of five claims representatives in the Pontiac District Office
during the time the visits were made to the DSS office. The Union's
on-site representative first learned of the visits to the DSS office in
September, from another employee.
11. At the Royal Oak Branch Office, 2 out of the 12 claims
representatives alternated on going to the DSS office. One, or the
other, went on August 20, 21, 27, and 28, one day in September, and on
October 8. The DSS office is six or seven blocks from the SSA office.
Discussions between Respondent's manager and the Union's on-site
representative occurred after the claims representatives started going
to the DSS office. Before the start of the visits, one of the claims
representatives complained about the DSS trip to the Union's on-site
representative. The on-site representative did not carry the complaint
to Respondent's office manager because, he testified, the decision had
already been made. At this office, late consultations on changes had
been a problem before. At the Royal Oak Branch Office, a supervisor
solicited information from the claims representatives involved about the
work load to be generated by the DSS Referral Program.
12. The collective bargaining agreement between the Union and the
Respondent designates "Work environment" as a subject area for
consultation. (Jt 3.5) When asked the meaning of "work environment,"
Mr. Clevenger answered: "The physical plant that you are located in, I
guess." (TR 155)
Issue
Whether Respondent violated 5 U.S.C. 7116(a)(1) and (5) by directing
bargaining-unit employees to travel to another office to perform their
duties, without giving their Union adequate notice and an opportunity to
bargain on the impact and implementation of the assignment.
Discussion and Conclusions
Respondent does not argue that it gave the Union adequate notice of
its plan to send claim representatives to another office to process
claims. Clearly, it did not. Respondent does argue that its actions
did not rise to the level of a change in conditions of employment, and
therefore it had no obligation to afford the Union notice and an
opportunity to bargain. See RBr 5. The factual basis for this argument
is that there had been a past practice for claims representatives to
travel, and that such traveling is a part of the job description of each
of the employees involved. Furthermore, Respondent argues that any
change must be shown to have had a substantial impact upon the
bargaining unit before bargaining rights are triggered, and that no
substantial impact was established in this case. See RBr 5-6. The
factual basis relied upon to support this argument is that the DSS trips
increased office efficiency and made the job easier, that the travel
time was during working hours, that the trips were short, and that the
employees always returned to their regular offices at the close of the
work day.
The General Counsel notes, on these points, that there had been a
long-standing practice of giving notification to the Union, and
consulting whenever claims representatives were to be send out of the
office, and that the DSS trips represented the first time that this
practice was not followed. See GCBr 9-10. The General Counsel also
relies on the fact that the past field trips of claims representatives
were infrequent, except at the Royal Oak Branch Office where the trips
were to gather information, not to interview clients. See GCBr 11. The
General Counsel notes that the impact of a field trip is felt by both
the employee on the trip, and the employees left in the SSA office. See
GCBr 11. The General Counsel states that the Respondent held
discussions with the employees involved, in the realization that an
impact on them would occur. See GCBr 11. The General Counsel cites the
testimony of one of Respondent's managers, that "work environment," a
subject designated for consultation in the collective bargaining
agreement, is the "physical plant that you are located in." See GCBr 11.
As to the substantial impact question, the General Counsel argues
that the impact was, indeed, substantial. The factual basis relied upon
to support this argument is that the claims representatives left in the
SSA Office had to take all the claims that came in, and this increase of
duties resulted in a backup in the processing of claims, that clients
had to wait, that a backlog also occurred as to Title II cases, that the
field visits required that extra adjudication time be provided, and that
there was a good deal of downtime for the claims representatives at the
DSS offices. See GCBr 12.
1. No change in working conditions occurred.
The preponderance of the evidence demonstrates that claims
representatives are expected to, and have traveled to other locations to
perform their duties. Generally, it has been an infrequent occurrence;
but there has been an established practice for such travel, when
necessary to the efficient functioning of the office. And the travel to
the DSS offices was clearly within the area designated in the job
descriptions of the claims representatives for performance of their
duties-- i.e., at "other temporary locations." See finding 2, above.
The DSS Referral Program is a "temporary" one; and the DSS offices
qualify as a temporary "location" for the performance of the work.
The two SSA cases cited by the General Counsel, at page 13 of the
brief, /15/ are distinguishable, on their facts. Both involved a change
in work site. However, the first case involved a change in hours worked
and the assignments were for several months. The second case is more
like the instant case, in that the employees were assigned to a
different work area, to clear up a backlog, and the assignments were for
1 to 10 days. But in neither case was there shown to be an established
past practice for assignments away from the usual work site, and a job
description that required work at different work sites where necessary
to perform the job.
At the Detroit Southwest Office, there was an established practice of
consulting with the Union when posted travel schedules were changed.
Changing an established practice, without prior notification to the
Union, can rise to the level of an unfair labor practice. However, as
will be discussed next, the change here involved did not have a
substantial enough effect upon employees to require
impact-and-implementation bargaining.
2. No substantial adverse impact was felt by the claims
representatives who traveled to the DSS offices, or to those who stayed
behind.
The DSS Referral Program was going to increase the workload of the
claims representatives regardless of whether the cases referred were
handled in the DSS or the SSA office. In some ways, handling the
referrals at the DSS offices made the job of the claims representative
easier. The claims representatives continued to check in and out of
their SSA offices, and had to travel only a short distance to reach the
DSS offices. The work environment of the DSS offices was not shown to
be any different from that of the SSA office. The travel was done only
one day a week, at most, and, at most, only six trips were taken by any
one representative. On balance, no substantial adverse impact upon
employees can be discerned from the record evidence. Compare the March
20, 1981 decision of the Authority, upholding a decision by
Administrative Law Judge Randolph D. Mason that the impact upon
employees affected by a promotion procedure must be "substantial" before
an unfair labor practice can be found. See Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco, Region, 5 FLRA No. 45 (1981).
ULTIMATE FINDINGS AND ORDER
No violation of Section 7116(a)(1) or (5) has been shown.
Accordingly, it is ORDERED that the Complaint in Case No. 5-CA-699 be,
and it hereby is, dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: July 10, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1A/ Member McGinnis' separate opinion is set forth, infra.
/1/ Section 7101. Findings and purpose
(b) It is the purpose of this chapter to prescribe certain
rights and obligations of the employees of the Federal Government
and to establish procedures which are designed to meet the special
requirements and needs of the Government. The provisions of this
chapter should be interpreted in a manner consistent with the
requirement of an effective and efficient Government.
/2/ Section 7106 provides in pertinent part:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency; and
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted;
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked or certified candidates for
promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the
agency mission during emergencies.
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/3/ 124 Cong.Rec. H8462 (statement of Rep. Udall) (daily ed. Aug. 11,
1978); Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978
Subcommittee on Postal Personnel and Modernization of the Committee on
Post Office and Civil Service, House of Representatives, 96th Congress,
1st Session, Committee Print No. 96-7 at 850.
/4/ 124 Cong.Rec. H9633 (statement of Rep. Udall) (daily ed. Sept.
13, 1978); Legislative History, supra, at 923.
/5/ Section 7106(b)(2) and (3) of the Statute provides:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/6/ See, e.g., National Federation of Federal Employees, Local 1497
and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
Base, Colorado, 11 FLRA 565 (1983) (Union Proposals 5 and 6).
/7/ Where a bargaining obligation arises under section 7106(b)(2) and
(3) of the Statute as the result of management's decision to exercise a
management right, it is incumbent upon management to set a date, which
bears a reasonable relationship to the change proposed, for the
implementation of the change. Management must also provide adequate
notice of the change to the exclusive representative to allow the union
to request negotiations, if it so chooses, and to allow the parties
reasonable time to complete the negotiations prior to the announced
implementation date. The adequacy of this advance notice is to be
judged by taking into account such factors as the nature and scope of
the proposed change, the impact on unit employees, and the immediacy of
management's need to act.
/8/ See, e.g., Delaware Army and Air National Guard, 16 FLRA No. 66
(1984).
/9/ This has commonly been referred to as "impact and implementation"
bargaining. See, e.g., Federal Aviation Administration, Washington,
D.C., 17 FLRA No. 26 (1985); and Veterans Administration, Hines
Hospital, Hines, Illinois, 16 FLRA No. 1 (1984).
/10/ See, note 3 and 4 supra.
/11/ Section 7101(b), supra at note 1.
/12/ In this regard, the parties can, of course, mutually agree to
extend the implementation date. Moreover, the initial implementation of
a change does not negate management's responsibility to continue to
bargain over appropriate arrangements for employees adversely affected
and the procedures to be used by management in implementing the future
stages of a change.
/13/ Section 7116(a) provides, in pertinent part, that:
(a) For the purposes of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this character; . . . .
/14/ References herein shall be as follows: "TR" refers to the
transcript; "GC" refers to the exhibits of the General Counsel; "R"
refers to the exhibits of the Respondent; "Jt" refers to the Joint
exhibits of the parties; "BrGc" refers to the brief of the General
Counsel; and "BRR" refers to the brief of the Respondent. Multipage
exhibits will be referenced by the exhibit number followed by the page
numbers. Dates references are in 1980, unless otherwise specified.
/15/ The first is Department of Health, Education and Welfare, Social
Security Administration, BRSI, Northeastern Program Service Center, 1
FLRA No. 3, A/SLMR No. 1101, FLRC No. 78A-136 (March 1, 1979). The
second is Department of Health, Education and Welfare, Social Security
Administration, BRSI, Northeastern Program Service Center, 1 FLRA No.
20, A/SLMR No. 1158, Case No. O-AS-2 (April 9, 1979).