10:0077(20)CA - HHS, SSA and AFGE -- 1982 FLRAdec CA



[ v10 p77 ]
10:0077(20)CA
The decision of the Authority follows:


 10 FLRA No. 20
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-388
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
 FINDS:
 
    ON AUGUST 30, 1979, PURSUANT TO A UNIT CONSOLIDATION PROCEEDING, THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), WAS
 CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE IN A UNIT CONSISTING
 ESSENTIALLY OF THE RESPONDENT'S PROFESSIONAL AND NON-PROFESSIONAL
 EMPLOYEES, WHICH CONSOLIDATED UNIT INCLUDED EMPLOYEES OF THE
 RESPONDENT'S CHICAGO FIELD OFFICES (ACTIVITY), WHO WERE PREVIOUSLY
 REPRESENTED EXCLUSIVELY IN A SMALLER AFGE UNIT.  ON AUGUST 31, 1979, IN
 ACCORDANCE WITH A DIRECTIVE FROM THE RESPONDENT THAT THE ACTIVITY'S
 STAFFING LEVELS BE REDUCED BY THE END OF THAT FISCAL YEAR, THE REGIONAL
 COMMISSIONER OF THE CHICAGO REGION ORDERED THAT, EFFECTIVE IMMEDIATELY,
 PART-TIME PERMANENT AND PART-TIME TEMPORARY EMPLOYEES OF THE ACTIVITY
 NOT WORK IN EXCESS OF THEIR ASSIGNED TOURS OF DUTY.  IMPLEMENTATION OF
 THE ORDER COMMENCED ON SEPTEMBER 4, 1979, AT WHICH TIME THERE OCCURRED
 REASSIGNMENTS OF SHIFTS AND REDUCTIONS IN THE HOURS OF WORK AND OVERTIME
 ASSIGNED TO PART-TIME PERMANENT AND PART-TIME TEMPORARY EMPLOYEES OF THE
 ACTIVITY.  ON THIS SAME DATE, THE EXECUTIVE VICE PRESIDENT OF AFGE'S
 NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION FIELD OFFICES
 REQUESTED THAT THE CHICAGO REGIONAL COMMISSIONER STAY HIS ORDER AND
 BARGAIN CONCERNING THE CHANGES.  IN HIS RESPONSE, THE REGIONAL
 COMMISSIONER NOTED THAT THE RESPONDENT'S REGIONAL OFFICES HAD NOT BEEN
 ADVISED OF THEIR BARGAINING RESPONSIBILITIES FOLLOWING THE RECENT UNIT
 CONSOLIDATION AND THAT THERE WAS NOT YET IN EXISTENCE AN AGREED UPON
 REGIONAL SUBSTRUCTURE WITHIN WHICH BARGAINING COULD TAKE PLACE.
 ADDITIONALLY, ON OR ABOUT SEPTEMBER 25, 1979, AT LEAST TWO TEMPORARY
 EMPLOYEES OF THE ACTIVITY WERE PLACED ON LEAVE-WITHOUT-PAY (LWOP) STATUS
 BY THE RESPONDENT.  THE PARTIES STIPULATED THAT THE RESPONDENT DID NOT
 PROVIDE ADVANCE NOTICE TO AFGE AT ANY LEVEL PRIOR TO THE ISSUANCE OF THE
 AUGUST 31 ORDER, AND DID NOT PROVIDE ADVANCE NOTICE TO AFGE PRIOR TO THE
 PLACEMENT OF EMPLOYEES ON LWOP.  THE PARTIES FURTHER STIPULATED THAT THE
 RESPONDENT DID NOT BARGAIN WITH AFGE ON ANY OF THESE CHANGES.
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT, SOCIAL SECURITY
 ADMINISTRATION, VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY
 CHANGING TERMS AND CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHOUT
 NOTIFYING AFGE AND AFFORDING IT AN OPPORTUNITY TO REQUEST BARGAINING
 OVER SUCH CHANGES.  THE RESPONDENT CONTENDS THAT NO BARGAINING
 OBLIGATION EXISTED WITH REGARD TO THE SUBSTANCE OF THE CHANGES OR THEIR
 IMPACT AND IMPLEMENTATION BASICALLY FOR TWO REASONS:  (1) THE CHANGES
 CONCERNED MATTERS FALLING WITHIN SECTION 7106(B)(1) OF THE STATUTE /1/
 AND WERE THEREFORE NEGOTIABLE SOLELY AT THE ELECTION OF THE RESPONDENT;
 AND (2) AT THE TIME THE CHANGES WERE DIRECTED PURSUANT TO THE REGIONAL
 COMMISSIONER'S ORDER, NO BARGAINING OBLIGATION EXISTED AT THE LEVEL OF
 THE REGIONAL COMMISSIONER.
 
    CONTRARY TO THE RESPONDENT'S POSITION, THE AUTHORITY FINDS THAT THERE
 EXISTED AN OBLIGATION TO NOTIFY THE EXCLUSIVE REPRESENTATIVE AND AFFORD
 IT AN OPPORTUNITY TO BARGAIN ON THE PROCEDURES TO BE USED IN
 IMPLEMENTING THE REDUCTION IN STAFFING LEVELS (INCLUDING THE PLACEMENT
 OF EMPLOYEES ON LWOP) AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY THESE CHANGES, /2/ AND THAT SUCH
 OBLIGATION EXISTED AT THE LEVEL OF THE RESPONDENT.  AS PREVIOUSLY NOTED,
 THE DIRECTIVE THAT THE CHICAGO REGIONAL COMMISSIONER REDUCE STAFFING
 LEVELS EMANATED FROM THE SOCIAL SECURITY ADMINISTRATION'S HEADQUARTERS,
 THE NAMED RESPONDENT IN BOTH THE UNFAIR LABOR PRACTICE CHARGE AND
 COMPLAINT, AND NOT FROM ANY SUBORDINATE LEVEL SUCH AS THE REGIONAL
 COMMISSIONER OR THE CHICAGO FIELD OFFICES WHICH TOOK ACTIONS TO
 IMPLEMENT THE DIRECTIVE.  AS TO THE DATE OF THE RESPONDENT'S DIRECTIVE,
 THE PARTIES' STIPULATION INDICATES MERELY THAT THE DIRECTIVE WAS ISSUED
 IN AUGUST 1979, BUT DOES NOT SPECIFY WHETHER THIS WAS PRIOR TO OR AFTER
 AFGE'S CERTIFICATION IN THE CONSOLIDATED UNIT ON AUGUST 30, 1979.
 ASSUMING, IN THE FIRST INSTANCE, THAT THE DIRECTIVE WAS ISSUED PRIOR TO
 THE DATE OF CERTIFICATION IN THE CONSOLIDATED UNIT, THE ACTIONS OF THE
 RESPONDENT IN DIRECTING SUBORDINATE ACTIVITIES AT THE PREEXISTING LEVEL
 OF EXCLUSIVE RECOGNITION TO MAKE CHANGES IN THE CONDITIONS OF EMPLOYMENT
 OF UNIT EMPLOYEES WITHOUT NOTIFYING THE EXCLUSIVE REPRESENTATIVE IN
 ADVANCE AND AFFORDING IT AN OPPORTUNITY TO BARGAIN CONSONANT WITH LAW
 AND REGULATIONS, VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.
 SEE DEPARTMENT OF THE INTERIOR, WATER AND POWER RESOURCES SERVICE, GRAND
 COULEE PROJECT, GRAND COULEE, WASHINGTON, 9 FLRA NO.  36(1982);
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION,
 REGION VI, AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
 ADMINISTRATION, GALVESTON, TEXAS DISTRICT, 10 FLRA NO. 9(1982).  IN THE
 ALTERNATIVE, IF THE DIRECTIVE WAS ISSUED ON OR AFTER THE DATE OF
 CERTIFICATION IN THE CONSOLIDATED UNIT, THE RESPONDENT, WHICH THEN
 BECAME THE NEW LEVEL OF EXCLUSIVE RECOGNITION, WAS OBLIGATED TO NOTIFY
 AFGE AND AFFORD IT AN OPPORTUNITY TO BARGAIN, CONSONANT WITH LAW AND
 REGULATION, CONCERNING THE REDUCTION IN STAFFING.  /3/ AS THE RESPONDENT
 FAILED TO PROVIDE PRIOR NOTICE TO AFGE REGARDING THE CHANGE IN STAFFING
 LEVELS AFFECTING UNIT EMPLOYEES OR TO PROVIDE AFGE AN OPPORTUNITY TO
 BARGAIN CONCERNING THE PROCEDURES TO BE USED IN IMPLEMENTING THE CHANGE
 AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 CHANGE, ITS CONDUCT WAS UNDER EITHER ALTERNATIVE VIOLATIVE OF SECTION
 7116(A)(1) AND (5) OF THE STATUTE.  /4/ FOR THE SAME REASON, THE
 RESPONDENT'S ACTION IN PLACING EMPLOYEES IN A LEAVE-WITHOUT-PAY STATUS
 ON OR ABOUT SEPTEMBER 25, 1979, WITHOUT PROVIDING AFGE PRIOR NOTICE AND
 AN OPPORTUNITY TO BARGAIN, CONSTITUTED A SECTION 7116(A)(1) AND (5)
 VIOLATION.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INSTITUTING CHANGES IN THE ASSIGNED TOURS OF DUTY OF UNIT
 EMPLOYEES, INCLUDING THE PLACEMENT OF UNIT EMPLOYEES IN A
 LEAVE-WITHOUT-PAY STATUS, WITHOUT FIRST NOTIFYING THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, AND AFFORDING IT AN OPPORTUNITY TO BARGAIN CONCERNING
 THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH CHANGES AND ON
 APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THESE
 CHANGES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) UPON REQUEST, NEGOTIATE WITH THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
 CONCERNING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING CHANGES IN THE
 ASSIGNED TOURS OF DUTY OF UNIT EMPLOYEES, INCLUDING THE PLACEMENT OF
 UNIT EMPLOYEES IN A LEAVE-WITHOUT-PAY STATUS, AND ON APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THESE CHANGES.
 
    (B) POST AT ALL LOCATIONS WITHIN THE CHICAGO FIELD OFFICES OF THE
 SOCIAL SECURITY ADM