Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region (Respondent) and Council of District Office Locals, American Federation of Government Employees, San Francisco Region (Charging Party) 

 



[ v05 p333 ]
05:0333(45)CA
The decision of the Authority follows:


 5 FLRA No. 45
 
 OFFICE OF PROGRAM OPERATIONS,
 FIELD OPERATIONS,
 SOCIAL SECURITY ADMINISTRATION,
 SAN FRANCISCO REGION
 Respondent
 
 and
 
 COUNCIL OF DISTRICT OFFICE LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 SAN FRANCISCO REGION
 Charging Party
 
                                            Case No. 9-CA-57
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING CONCLUDING THAT THE UNFAIR LABOR PRACTICE
 COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED VIOLATION OF SECTION
 7116(A)(1) AND (5) OF THE STATUTE, BE DISMISSED IN ITS ENTIRETY.  THE
 GENERAL COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD IN THE CASE, INCLUDING
 THE EXCEPTIONS FILED BY THE GENERAL COUNSEL AND THE CHARGING PARTY, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-57 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 20, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    WILSON G. SCHUERHOLZ
    FOR THE RESPONDENT
 
    BARI STOLMACK, ESQ.
    FOR THE GENERAL COUNSEL
 
    BEFORE:  RANDOLPH D. MASON
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
    THESE CONSOLIDATED CASES AROSE PURSUANT TO THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET
 SEQ., AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JANUARY
 24, 1980, AND AN AMENDED COMPLAINT FILED ON MARCH 12, 1980, BY THE
 REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS AUTHORITY, SAN
 FRANCISCO, CALIFORNIA, AGAINST THE OFFICE OF PROGRAM OPERATIONS, FIELD
 OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION
 ("RESPONDENT").
 
    AT THE HEARING IN THIS MATTER, THE PARTIES REACHED A SETTLEMENT IN
 CASE NO. 9-CA-56 AND A MOTION TO SEVER WAS GRANTED.  THE ONLY REMAINING
 ISSUE IS WHETHER RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE
 STATUTE WHEN IT FAILED TO NOTIFY THE UNION OR GIVE IT AN OPPORTUNITY TO
 CONSULT OR BARGAIN ABOUT THE IMPACT AND IMPLEMENTATION OF A DECISION TO
 TEMPORARILY ASSIGN A BARGAINING UNIT EMPLOYEE TO A SUPERVISORY POSITION.
  RESPONDENT DENIES THAT IT HAD ANY OBLIGATION TO EITHER CONSULT OR
 NEGOTIATE REGARDING THIS MATTER.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT MODESTO,
 CALIFORNIA.  ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
 TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE
 WITNESSES.  BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
 BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS OF LAW, AND RECOMMENDED ORDER:
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HERETO, THE COUNCIL OF DISTRICT OFFICE LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION
 ("UNION"), WAS RECOGNIZED BY THE RESPONDENT AS THE EXCLUSIVE
 REPRESENTATIVE OF CERTAIN EMPLOYEES IN REGION IX UNDER THE JURISDICTION
 OF THE ASSISTANT REGIONAL COMMISSIONER, FIELD OPERATIONS, SOCIAL
 SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.
 SUPERVISORS WERE NOT INCLUDED IN THE BARGAINING UNIT.
 
    DURING THE PERIOD IN ISSUE, RESPONDENT'S MODESTO OFFICE HAD BETWEEN
 25 AND 30 CLAIMS REPRESENTATIVES.  THESE EMPLOYEES INTERVIEWED
 APPLICANTS FOR SOCIAL SECURITY BENEFITS, PROCESSED THEIR CLAIMS, AND
 HANDLED POST-ENTITLEMENT ACTIONS INVOLVING, E.G., CHANGES IN THE AMOUNT
 OF BENEFITS AND THE NAMES OF BENEFICIARIES.  A CLAIMS REPRESENTATIVE
 WOULD TYPICALLY SPEND FIVE HOURS A DAY CONDUCTING INTERVIEWS.
 
    PRIOR TO FEBRUARY 14, 1979, THE MODESTO OFFICE HAD ONE INDIVIDUAL,
 DAVID DELO, ASSIGNED AS A FIELD REPRESENTATIVE.  WITH CERTAIN EXCEPTIONS
 NOT RELEVANT HERETO, THE LATTER PERFORMED THE SAME FUNCTIONS IN THE
 FIELD (THE LOCAL COMMUNITY) THAT THE CLAIMS REPRESENTATIVES PERFORMED IN
 THE OFFICE.  THUS IF A CLAIMANT WAS PHYSICALLY UNABLE TO COME INTO THE
 OFFICE, THE FIELD REPRESENTATIVE WOULD GO TO THE CLAIMANT'S HOME TO
 CONDUCT THE INTERVIEW.  HE ALSO MET THE PUBLIC ONCE A WEEK AT A SOCIAL
 SECURITY "CONTACT STATION" IN A NEARBY TOWN.
 
    FOR A LONG TIME PRIOR TO, AND AFTER, FEBRUARY 14, 1979, RESPONDENT'S
 MODESTO OFFICE HAD AN ESTABLISHED PRACTICE FOR HANDLING DELO'S CLAIMS
 FUNCTIONS WHENEVER HE WAS ABSENT FROM DUTY.  RESPONDENT WAS AWARE OF
 THE
 NAMES OF ALL CLAIMS REPRESENTATIVES WHO WISHED TO SUBSTITUTE FOR DELO IN
 HIS ABSENCE.  AT ALL TIMES RELEVANT HERETO, ABOUT SIX CLAIMS
 REPRESENTATIVES HAD INDICATED A CONTINUING DESIRE TO PERFORM THIS
 FUNCTION.  ON EACH DAY THAT DELO WAS ABSENT, RESPONDENT WOULD ASK A
 VOLUNTEER IF HE OR SHE WOULD BE INTERESTED IN SUBSTITUTING FOR DELO ON
 THAT DAY.  THE OPPORTUNITY TO SUBSTITUTE WAS ROTATED AMONG THE SIX
 VOLUNTEERS.  THE WORKLOAD OF THESE VOLUNTEERS DID NOT INCREASE WHILE
 THEY WERE SUBSTITUTING FOR DELO SINCE NO NEW WORK CAME INTO THEIR UNIT
 AT THE MODESTO OFFICE WHILE THEY WERE SUBSTITUTING.  ALTHOUGH THE
 POSITION DESCRIPTION FOR ALL CLAIMS REPRESENTATIVES INCLUDES THIS KIND
 OF TRAVEL AND FIELD WORK, IN PRACTICE ONLY THE ABOVE VOLUNTEERS AND THE
 FIELD REPRESENTATIVE PERFORMED SUCH WORK.
 
    THE FIELD REPRESENTATIVE ALSO PERFORMED SOME PUBLIC RELATIONS WORK.
 HOWEVER, THE LATTER WORK WAS PERFORMED BY MANAGEMENT IN DELO'S ABSENCE.
 SINCE NOT ALL OF DELO'S WORK INVOLVED CLAIMS, IT WAS ONLY NECESSARY TO
 SEND A SUBSTITUTE INTO THE FIELD THREE DAYS OUT OF EACH WEEK WHEN THE
 FIELD REPRESENTATIVE WAS ABSENT.  ALSO, THE SUBSTITUTE WOULD ONLY HAVE
 TO SPEND SIX HOURS IN THE FIELD.
 
    WHEN ONE OF THE VOLUNTEERS WAS SUBSTITUTING FOR DELO, THE
 INTERVIEWING WORK WHICH HE WOULD NORMALLY HAVE DONE IN THE MODESTO
 OFFICE WOULD BE PERFORMED BY THE REMAINING 25 OR 30 CLAIMS
 REPRESENTATIVES AND TEN SERVICE REPRESENTATIVES.  ALSO, AT ANY TIME WHEN
 THE INTERVIEWING WORKLOAD BECAME HEAVY, THE SUPERVISORS WOULD CONDUCT
 INTERVIEWS WITH APPLICANTS FOR BENEFITS.
 
    ON OR ABOUT FEBRUARY 14, 1979, RESPONDENT ASSIGNED DELO TO THE
 POSITION OF ACTING OPERATIONS SUPERVISOR WITHOUT FIRST NOTIFYING THE
 UNION OR GIVING IT AN OPPORTUNITY TO CONSULT OR NEGOTIATE ABOUT THE
 IMPACT OR IMPLEMENTATION OF THAT ASSIGNMENT.  WHEN DELO WAS SELECTED FOR
 THIS DETAIL IT WAS ANTICIPATED THAT HE WOULD BE ACTING FOR ABOUT THREE
 OR FOUR MONTHS.  THUS THE PROMOTION WAS TEMPORARY.  SOME OF THE UNIT
 EMPLOYEES WERE DISSATISFIED BECAUSE THEY WERE NOT GIVEN AN OPPORTUNITY
 TO COMPETE FOR THE SUPERVISORY POSITION.  EVEN THOUGH IT WAS ONLY A
 TEMPORARY ASSIGNMENT, THEY FELT THAT IT WOULD HAVE ENHANCED THEIR
 OPPORTUNITIES TO RECEIVE A PERMANENT PROMOTION AT A LATER TIME.
 
                            CONCLUSIONS OF LAW
 
    THE FIRST ISSUE FOR CONSIDERATION IS WHETHER THE RESPONDENT VIOLATED
 SECTION 7116(A)(5) AND (1) OF THE STATUTE BY REFUSING TO NOTIFY THE
 UNION OR GIVE IT AN OPPORTUNITY TO NEGOTIATE ABOUT THE PROCEDURES
 OBSERVED BY RESPONDENT IN MAKING ITS DECISION TO TEMPORARILY ASSIGN
 DAVID DELO TO THE POSITION OF ACTING OPERATIONS SUPERVISOR.  THE GENERAL
 COUNSEL RELIES UPON SECTION 7106(B)(2).  THE RESPONDENT ASSERTS THAT
 THIS MATTER IS OUTSIDE MANAGEMENT'S OBLIGATION TO BARGAIN UNDER SECTION
 7117 OF THE STATUTE BECAUSE IT RELATES TO THE METHOD THAT MANAGEMENT
 WILL USE IN FILLING A SUPERVISORY, NON-BARGAINING UNIT POSITION.
 RESPONDENT'S POSITION MUST BE UPHELD IN VIEW OF THE AUTHORITY'S DECISION
 IN NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT OF LABOR, WASHINGTON,
 D.C., 3 FLRA NO. 44 (1980).  THERE IT WAS EMPHASIZED THAT THE EXCLUSIVE
 REPRESENTATIVE'S OBLIGATION AND CORRELATIVE RIGHTS EXTEND ONLY TO
 EMPLOYEES IN THE BARGAINING UNIT AND THAT THE PROCEDURES FOR FILLING
 SUPERVISORY POSITIONS DO NOT DIRECTLY RELATE TO CONDITIONS OF EMPLOYMENT
 OF UNIT EMPLOYEES.
 
    THE NEXT ISSUE IS WHETHER RESPONDENT SHOULD HAVE GIVEN THE UNION
 NOTICE AND AN OPPORTUNITY TO BARGAIN, PURSUANT TO SECTION 7106(B)(3),
 ABOUT "APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED" BY
 RESPONDENT'S COUNSEL HAS THE BURDEN OF PROVING THAT BARGAINING UNIT
 EMPLOYEES WERE, IN FACT, "ADVERSELY AFFECTED" AND THAT THE IMPACT WAS
 SUBSTANTIAL BEFORE AN UNFAIR LABOR PRACTICE CAN BE FOUND WHERE THE
 OBLIGATION TO BARGAIN IS BASED ON SECTION 7106(B)(3).  A SUBSTANTIAL
 IMPACT RULE EXISTED UNDER EXECUTIVE ORDER 11491.  SOCIAL SECURITY
 ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS AND AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 3615, 2 FLRA NO. 27, (1979) REPORT NO.
 23;  DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD, TEXAS AIR NATIONAL
 GUARD, CAMP MABRY, AUSTIN TEXAS, 6 A/SLMR 591, A/SLMR NO. 738 (1976).
 IN THE LATTER CASE THE ASSISTANT SECRETARY STATED THE FOLLOWING ABOUT
 SECTION 11(A) OF THE EXECUTIVE ORDER:
 
    IN MY VIEW, IT IS NOT INTENDED TO EMBRACE EVERY ISSUE WHICH IS OF
 INTEREST TO AGENCIES AND
 
    EXCLUSIVE REPRESENTATIVES AND WHICH INDIRECTLY MAY AFFECT EMPLOYEES.
 RATHER, SECTION 11(A)
 
    ENCOMPASSES THOSE MATTERS WHICH MATERIALLY AFFECT, AND HAVE A
 SUBSTANTIAL IMPACT ON, PERSONNEL
 
    POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS.  (ID. AT 591) IN
 APPLYING THE ABOVE RULE TO THE STATUTE, I AM MINDFUL OF THE LEGISLATIVE
 HISTORY INDICATING THAT SECTION 7106 SHOULD BE READ TO FAVOR COLLECTIVE
 BARGAINING WHENEVER THERE IS DOUBT AS TO THE NEGOTIABILITY OF A SUBJECT.
  H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 43-44 (1978).  HOWEVER,
 THERE SHOULD BE NO DOUBT THAT MANAGEMENT SHOULD NOT BE COMPELLED TO
 NEGOTIATE WHERE THE EXERCISE OF ITS RIGHTS RESULTS IN AN INSUBSTANTIAL
 IMPACT ON BARGAINING UNIT EMPLOYEES.  /1/ TO REACH A CONTRARY RESULT
 WOULD REQUIRE MANAGEMENT TO NEGOTIATE ON THE IMPACT OF DECISIONS WHERE
 THE EFFECT ON UNIT EMPLOYEES IS REMOTE OR INSIGNIFICANT.
 
    IN APPLYING THE ABOVE PRINCIPLES TO THE INSTANT CASE, I HAVE
 CONCLUDED THAT RESPONDENT HAD NO OBLIGATION TO BARGAIN OR CONSULT
 REGARDING THE IMPACT OF ITS DECISION TO TEMPORARILY ASSIGN DAVID DELO,
 THE SOLE FIELD REPRESENTATIVE, INDIRECT EFFECT OF SETTING INTO MOTION AN
 ESTABLISHED PAST PRACTICE-- WHENEVER DELO WAS ABSENT, RESPONDENT WOULD
 ASK FOR VOLUNTEERS FROM THE GROUP OF CLAIMS REPRESENTATIVES TO TAKE OVER
 DELO'S CLAIMS FUNCTIONS IN THE FIELD.  OVER A PERIOD OF TIME ABOUT SIX
 CLAIMS REPRESENTATIVES HAD VOLUNTEERED, AND IT APPEARS THAT ALL WERE
 GIVEN EQUAL OPPORTUNITIES TO FILL IN FOR DELO.  ONLY ONE VOLUNTEER WOULD
 LEAVE THE OFFICE ON ANY PARTICULAR DAY AND THE PROCEDURE WAS IN EFFECT
 ONLY THREE ON EACH OF THESE DAYS.
 
    WITH REGARD TO THE VOLUNTEERS, THERE IS NO EVIDENCE THAT THEY WERE IN
 ANY WAY "ADVERSELY AFFECTED" AS REQUIRED BY SECTION 7106(B)(3) OF THE
 STATUTE.  RESPONDENT HAD ALWAYS GIVEN ANYONE WHO ENJOYED GETTING OUT OF
 THE OFFICE IN DELO'S ABSENCE AN OPPORTUNITY TO DO SO.  WHEN THEY FILLED
 IN FOR DELO THEY WERE PERFORMING ESSENTIALLY THE SAME JOB IN THE FIELD
 AS THEY HAD PERFORMED IN THE OFFICE EXCEPT THAT THEY HAD AN OPPORTUNITY
 TO GET OUT OF THE OFFICE FOR SIX HOURS.  THEIR WORKLOAD WAS NOT
 INCREASED.  DELO'S THREE OR FOUR MONTH ABSENCE MERELY MEANT THAT EACH OF
 THE VOLUNTEERS WOULD GET A FEW MORE OPPORTUNITIES TO TRAVEL THAN USUAL
 DUE TO THE EXTENDED PERIOD;  HOWEVER, NO ONE CONTENDS THAT THIS
 CONSTITUTED AN ADVERSE EFFECT.  MOREOVER, THEIR WORKING CONDITIONS WERE
 NOT CHANGED.
 
    I TURN NOW TO THE GENERAL COUNSEL'S PRIMARY CONTENTION THAT THE
 REMAINING CLAIMS REPRESENTATIVES WERE ADVERSELY AFFECTED.  IT IS TRUE
 THAT WHEN ONE CLAIMS REPRESENTATIVE WAS FILLING IN FOR DELO THE MODESTO
 OFFICE WOULD BE SHORT ONE PERSON.  ASSUMING, FOR THE SAKE OF ARGUMENT,
 THAT THE NUMBER OF SOCIAL SECURITY APPLICANTS REQUESTING INTERVIEWS
 REMAINED CONSTANT, THE NUMBER OF INTERVIEWS TO BE CONDUCTED BY THE
 REMAINING 25 OR 30 CLAIMS REPRESENTATIVES COULD HAVE INCREASED SLIGHTLY.
  HOWEVER, THIS ADDITIONAL "BURDEN" WAS ALSO SHARED BY AN ADDITIONAL TEN
 SERVICE REPRESENTATIVES;  IN ADDITION, WHENEVER THE INTERVIEWING
 WORKLOAD BECAME HEAVY, THE SUPERVISORS WOULD ALSO CONDUCT INTERVIEWS.
 THUS ANY ADDITIONAL WORKLOAD DUE TO A MISSING CLAIMS REPRESENTATIVE
 WOULD HAVE BEEN WIDELY DIFFUSED AND THE IMPACT UPON THE REMAINING CLAIMS
 REPRESENTATIVES WOULD HAVE BEEN INSUBSTANTIAL.
 
    THE GENERAL COUNSEL ALSO ARGUES THAT THE DECISION TO ASSIGN DELO TO
 THE ACTING SUPERVISORY POSITION LOWERED THE MORALE OF SOME UNIT
 EMPLOYEES BECAUSE THEY WERE NOT GIVEN AN OPPORTUNITY TO COMPETE FOR THE
 POSITION.  HOWEVER, AS PREVIOUSLY STATED, MANAGEMENT HAS NO OBLIGATION
 TO BARGAIN ABOUT THE METHOD IT WILL USE IN FILLING SUPERVISORY,
 NON-BARGAINING UNIT POSITIONS.  NATIONAL COUNCIL OF FIELD LABOR LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT
 OF LABOR, WASHINGTON, D.C., 3 FLRA NO. 44 (1980).  ALTHOUGH SOME OF THE
 EMPLOYEES MAY HAVE BEEN DISPLEASED, RESPONDENT'S ACTION HAD NO DIRECT
 EFFECT ON THE UNIT EMPLOYEES WHO WERE NOT CHOSEN.
 
    SINCE NO VIOLATION OF SECTION 7116(A)(5) AND (1) OF THE STATUTE HAS
 BEEN SHOWN, /2/ I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING
 ORDER:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-57 BE, AND
 IT HEREBY IS, DISMISSED.
 
                          RANDOLPH D. MASON
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 12, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ AFTER THE ENACTMENT OF THE STATUTE, CONGRESSMAN FORD STATED THAT
 "WHERE THE ADVERSE EFFECTS ARE 'DE MINIMUS,' NEGOTIATIONS WILL OCCUR,
 BUT. . . BOTH PARTIES WILL SEE THAT THEY PROCEED WITH APPROPRIATE
 DISPATCH." 124 CONG. REC. H 13607 (DAILY ED. OCT. 14, 1978).
 POST-ENACTMENT STATEMENTS DO NOT CONSTITUTE EVIDENCE OF CONGRESSIONAL
 INTENT.  FURTHERMORE, THE CONGRESSMAN MAY HAVE BEEN REFERRING TO
 SITUATIONS INVOLVING SUBST