11:0419(78)NG FGE VS HHS, SSA -- 1983 FLRAdec NG



[ v11 p419 ]
11:0419(78)NG
The decision of the Authority follows:


11 FLRA NO. 78
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION,
FIELD ASSESSMENT OFFICE,
ATLANTA, GEORGIA

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

     Charging Party

Case No. 4-CA-659

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practice alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative actions. Exceptions to the Judge's decision were filed by the Respondent, and an opposition was filed by the General Counsel.

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 and conclusions insofar as they are based upon a reasonably foreseeable impact on unit employees resulting from the Respondent's unilateral change in their job duties.

Upon finding a violation herein, the Judge recommended that a status quo ante remedy be ordered, noting that no serious disruptive effect upon the Respondent's operations would be caused by such a remedy. Subsequently, the Authority issued its Decision and Order in Federal Correctional Institution, 8 FLRA No. 111 (1982), wherein it set forth factors to be considered in determining the appropriateness of a status quo ante remedy. Applying such factors to the instant case, and noting that the Respondent has not excepted to the recommended remedy, the Authority finds, in agreement with the Judge, that a status quo ante remedy is warranted. In this regard, the Authority has [ v11 p419 ] especially considered, as found by the Judge, Respondent's misleading statements and failure to provide the appropriate representative of the Charging Party with advance notice of the change, and the apparent fact that such a remedy would not seriously disrupt the Respondent's operations.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders that the Department of Health and Human Services, Social Security Administration, Field Assessment Office, Atlanta, Georgia, shall:

1. Cease and desist from:

(a) Changing job duties and working conditions of bargaining unit employees or requiring Quality Review Specialists to conduct training programs by using videotapes and answering questions in the local Social Security Offices, without first notifying the American Federation of Government Employees of its intention to require the performance of such new job duties and affording it the opportunity to negotiate about the procedures that management will observe in requiring bargaining unit employees to perform such new job duties and the impact such changes will have on affected employees.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of 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 Federal Service Labor - Management Relations Statute.

(a) Rescind the instructions that require Quality Review Specialists to conduct training programs using videotapes and answering questions in the local Social Security Offices.

(b) Upon request, negotiate with the American Federation of Government Employees, concerning the procedures management will observe in requiring bargaining unit employees to perform such new job duties and the impact such changes will have on affected employees.

(c) Post at its facilities within the Field Assessment Offices in the Atlanta Regional Offices copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by an appropriate official, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees customarily are posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region IV, Federal Labor [ v11 p420 ] Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., February 25, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p421 ]

           NOTICE TO ALL EMPLOYEES
                 PURSUANT TO
         A DECISION AND ORDER OF THE
      FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
        CHAPTER 71 OF TITLE 5 OF THE
             UNITED STATES CODE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
    WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change job duties and working conditions of bargaining unit employees or require Quality Review Specialists to conduct training programs by using videotapes and answering questions in local Social Security Offices, without first notifying the American Federation of Government Employees of our intention to require the performance of such job duties and affording it the opportunity to negotiate about the procedures which management will observe in requiring bargaining unit employees to perform such new job duties and the impact such changes will have on affected employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL rescind the instructions that require Quality Review Specialists to conduct training programs using videotapes and answering questions in the local Social Security Offices.

WE WILL, upon request, negotiate with the American Federation of Government Employees concerning the procedures management will observe in requiring bargaining unit employees to perform such new job duties and the impact such changes will have on affected employees.

                           _________________________
                             (Agency or Activity)

Dated: _______________ By: ________________________
                                 (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region IV, Federal Labor Relations Authority, whose address is: Suite 501, North Wing, 1776 Peachtree Street, NW., Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324. [ v11 p422 ]

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, FIELD ASSESSMENT
OFFICE, ATLANTA, GEORGIA

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

     Charging Party

Case No.: 4-CA-659

Wilson Schuerholz, Esq.
        For the Respondent

Barry Nelson
        For the Charging Party

Linda J. Norwood, Esq.
        For the General Counsel, FLRA

Before: SAMUEL A. CHAITOVITZ
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et seq. [ v11 p423 ]

Pursuant to a charge filed on November 6, 1980 by the American Federation of Government Employees, AFL - CIO (hereinafter called the Union and/or AFGE) against the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 1 the General Counsel of the FLRA, by the Regional Director of Region 4, issued a Complaint and Notice of Hearing on January 27, 1981. The Complaint alleges that Respondent violated Sections 7116(a)(1), (5) and (8) of the Statute 2 by failing to properly notify the Union of a change in working conditions involving the showing of a videotape by bargaining unit employees. Respondent filed an Answer denying that it had violated the Statute.

A hearing in this matter was conducted before the undersigned in Atlanta, Georgia. The General Counsel of the FLRA, Respondent and Charging Party were represented and afforded full opportunity to be heard, to examine and cross-examined witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered.

Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following:

Findings of Fact

The Union is the collective bargaining representative for a nationwide, consolidated unit of employees of the Social Security Administration (SSA). A portion of this unit consists of employees of the Field Assessment Office, an organizational component of SSA. The FAO, Region 4, 3 SSA, is headquartered in Atlanta, Georgia and covers eight states, Georgia, North Carolina, South Carolina, Tennessee, Mississippi, Alabama, Florida and Kentucky.

The Director of FAO 4 is Maxine McNutt. She is the highest official in FAO and reports directly to the Associate Commissioner for Assessment located at SSA Headquarters in Baltimore, Maryland. FAO is composed of [ v11 p424 ] four organizational components, the Division of Adjudication Process Quality, The Division of Payment and Eligibility Quality (DPEQ), the Field Integrity Staff and the Evaluation Staff.

The subject case concerns DPEQ, which is composed of two branch offices and five satellite offices located in College Park, Georgia; Birmingham, Alabama; Raleigh, North Carolina; Nashville, Tennessee; and St. Petersburg, Florida. Each satellite office has a manager and various supervisors. The two branches are the Special Studies and Analysis Branch and the Aid to Families with Dependent Children, Quality Control Branch.

Employees of DPEQ perform quality assurance reviews of SSA benefit programs; they check the accuracy of benefit eligibility determinations made by the SSA District Offices. The DPEQ employees who perform these quality reviews are Quality Review Specialists (QRS). QRS's perform these function by traveling to beneficiaries' homes, banks and places where public records are kept and by examining the accuracy of the information used to determine beneficiaries' awards. The QRS reports his findings to the appropriate authorizing officials if errors are found. The QRS position description includes the duty to participate in liaison activities including contacts with State and Federal agencies and SSA components and personnel at all levels. The job description states that the purpose of the contacts is "to secure and/or provide data essential to the operation of the Quality Assurance Program." QRS's had not previously traveled to the various SSA District offices to show training videotapes. Although liaison was a function included in the QRSs' job description, it had not, on the whole been performed due to the large case load. Further with respect to liaison duties performed the outside parties came to the satellite offices.

By letter dated December 12, 1979 and addressed to Lewis S. Gossett, Field Assessment Officer, AFGE Local 2206, President Imogene Shoemaker designated union stewards to represent employees located in DPEQ satellite offices. These satellite office union stewards were "empowered to deal with Local Management within their respective offices." In this letter AFGE Local 2206 President Shoemaker designated Barry Nelson, as the "Acting Regional Vice - President for the Office of Assessment including DPAQ and DPEQ.... He will also be responsible for the Nashville, TN and Raleigh, NC offices until office vice-presidents are named."

In the letter AFGE Local 2206 President Shoemaker went on to state, "...I further delegate to Mr. Nelson the authority to deal with the Field Assessment Officer on the Regional level in my absence. Further, Mr. Nelson is temporarily authorized to deal wit the Field Assessment Officer directly, with the stipulation that Mr. Nelson will route issues through the President of this Local. The Field Assessment Officer is requested to direct issues to Mr. Nelson in the same manner. This is [ v11 p425 ] merely a formality to ensure that I am informed of on-going bargaining, and in no way diminishes Mr. Nelson's authority. We feel that negotiations with OA should be primarily performed by an employee of OA. I will merely act as advisor and resource person but will still be responsible for the actions of those appointed Union Representatives." At no time material herein was Nelson's designation revoked.

By letter dated March 28, 1980 to Field Assessment Officer Maxine McNutt, Nelson stated, "I have the feeling that there may be some misunderstanding in regards to the designation of representatives by Local 2206. When I requested consultation on these proposals, I was acting as a representative of the National Council, OA as these positions exist in every Region.

You are correct in that Ms. Jones is the Office Vice - President for 101 Matietta and thus any proposal which would impact that office alone should be directed to her if it is unique or particular to that office. There are some issues which should be negotiated either at the Regional or National level when they affect either more than one office or more than one Region."

During approximately the latter part of July 1980 McNutt advised Shoemaker that a training type videotape had been prepared with the aim of showing it to all FAO employees and improving the FAO relationship with SSA district offices. McNutt advised Shoemaker of a planned FAO Atlanta area wide general staff training meeting in September of 1980, at which meeting the videotape would be shown. McNutt decided that, if travel funds were available, a unit employee from each of the satellite offices could attend the training meeting. Shoemaker and McNutt agreed that each satellite manager should get together with the appropriate local Union vice-president and work out the selection procedure for selecting the unit employee that was to attend the training meeting. Shomaker also indicated to McNutt that she wanted one of those attending to be there also in the capacity of a Union representative and Shoemaker so designated Larry Vance. Accordingly McNutt called Larry Vance and advised him of his designation. 5 [ v11 p426 ]

At the September 1980 training meeting McNutt showed the recently developed 27-minute videotape concerning the functions of the FAO. McNutt announced that she hoped to include the use of the videotape in the SSA district and branch offices and that she "certainly hoped QRS's would be involved, and I expected that to be a part of our proposal that we would submit to the union...."

6

On a about October 8, 1980, McNutt transmitted a memorandum to the satellite office managers concerning the "FAO Videotape - ACTION". The memorandum instructed the managers to have the videotape shown in the "district and branch offices in your area." The memorandum stated further, "When a QRS plans travel in an office's service area, he should contact the district manager and make himself available for a staff meeting (to show the film)."

On October 17, 1980, Deputy Director, DPEQ, Sue Lee, followed up McNutt's memorandum by issuing her own instructions to the satellite office managers regarding the use of the videotape. The memorandum stated that the videotape should be "completely circulated as rapidly as possible." Lee stated that the managers "...should discuss the proposal and methodology with your union representation." In addition, Lee stated that the "decision to assign the presentation responsibility to the satellite office employees was not made lightly."

QRS's do not routinely travel to SSA district (and branch) offices, where benefits are authorized. Moreover, while a "liaison function" is part of the ARSs' job description, due to the volume of the ARSs' workload, the QRS's in some offices had not been performing liaison functions. QRS's travel during varying hours to perform their work, but district office hours, where the films would be shown, are set and therefore limited as to the time a film could be shown to employees without disruption of service to the public.

Neither Union Vice President Barry Nelson nor Shoemaker were sent copies of the memorandum from McNutt and Lee concerning the QRS's showing the videotapes nor were Nelson or Shoemaker advised of the decision to have the ARS's show the videotapes in the various SSA offices.

During October and November 190 various satellite office managers met with local designated Union representatives and agreed the manner by which the QRS's would show the videotapes. [ v11 p427 ]

In October 1980 Union satellite office Vice President Frank Llamas of St. Petersburg, telephonically advised Nelson about the memoranda.

The showing of the videotapes by the QRS's, which involves visiting the SSA offices and then answering questions, might reasonably be foreseen to interfere with the QRS's performing their normal case workload, might entail more travel at different hours, and might even effect how well they are evaluated in performing this work.

Discussion and Conclusions

An agency may not make changes effecting conditions of employment without first notifying the exclusive bargaining representatives of the affected employees and affording it an opportunity to bargain concerning the impact and implementation of such changes. Cf. San Antonio Logistics Base Center, (AFLC), Kelly Air Force Base, Taxes, 5 FLRA No. 22 (1981); and Internal Revenue Service, 4 FLRA No. 68 (1980).

In the instant case FAO made a significant change in the conditions of employment by adding to the QRSs' duties the obligation to travel to the SSA offices and to conduct a training program by showing the videotape and answering questions. Although "liaison" is in the job description of QRS's, in fact, the QRS's did not, as part of their regular duties, travel to SSA offices and conduct training programs by showing videotapes and answering questions. The showing of the videotapes and the answering of questions involved skills of public speaking, handling electronic equipment, etc., which were not the skills the QRS's used in the performance of their regular duties. This addition to the duties actually performed by QRS's was a change in the employees' terms and conditions of employment and, further, this change in employment conditions reasonably be foreseen to have a substantial impact on the QRS's. Thus the QRS's could reasonably foresee and anticipate that the change would have a substantial impact on their travel and work schedules, and their ability to handle their case loads and further, since it would be part of their duties, they would be appraised on how well they performed this new duty. Thus AFGE was entitled to advance notice of the change in the QRSs' working conditions, which foreseeably would have an adverse impact on the employees, and an opportunity to bargain about the impact and procedures for implementation of the change. Cf. Norfolk Naval Shipyard, 6 FLRA No. 22 (1981); San Antonio Logistics Base Center (AFLC), Kelly Air Force Base, Texas, supra; U.S. Air Force, Air Force Logistics Command, etc. 4 FLRA No. 70 (1980); V.A. Medical Center, Canandaigua, New York, OALJ-82-22 (1981); and U.S. Department of Treasury, Bureau of Alcohol, Tobacco, and Firearms, Washington, D.C. and Central Region, OALJ-81-116 (1981).

The record clearly establishes that AFGE had notified FAO that, with respect to matters concerning changes on a regional level, FAO was to notify Barry Nelson. The record establishes that FAO did not give any [ v11 p428 ] advance notice of the change to Barry Nelson 7 or to AFGE Local 2206 President Shoemaker. FAO contends, and it is found, that AFGE President Shoemaker was represented at the September 1980 training meeting. However neither McNutt nor any FAO official gave any notice of the impending change in the QRSs' duties. Rather McNutt stated vaguely that she "hoped QRS's would be involved". Further, McNutt specifically indicated that some precise proposals would be submitted to the union when she stated, "...I expected that to be part of our proposal that we would submit to the Union..." Thus not only was AFGE not given any specific advance notice of the change, but on the contrary, it was told that when a specific plan is drawn up FAO would so advise the Union. The very nature of McNutt's statements lulled the Union into believing that it would be receiving, in the future, precise and specific notice of any planned change. It is concluded that FAO never gave notice to the appropriate AFGE representatives. Finally FAO contends that because satellite office managers discussed the implementation of the change with the local AFGE representatives, that constituted sufficient notice to AFGE. Such contention is rejected because AFGE is entitled to designate who will receive notice on its behalf and FAO is obliged to give notice to AFGE's designee. AFGE, not FAO, determines who is authorized to receive notice on behalf of AFGE. Cf. U.S. Air Force, Air Force Logistics Command, etc. supra; Norfolk Naval Shipyard, supra.

In light of all of the foregoing it is concluded that FAO's failure to provide AFGE with advance notice of the decision to require QRS's to conduct videotape training programs and answer questions at local SSA offices, so that AFGE had an opportunity to bargain about the impact and implementation of this decision, violated Sections 7116(a)(5) and (1) of the Statute. Further it is concluded that a status quo ante remedy is appropriate in the instant case because the record does not include that a status quo ante remedy would create a serious disruption of FAO's operations. See, Norfolk Naval Shipyard, supra; but see U.S. Air Force, Air Force Logistics Command, etc., supra.

Having concluding that FAO violated Sections 7116(a)(5) and (1) of the Statute is is recommended that the Federal Labor Relations Authority issue the following: [ v11 p429 ]

ORDER

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Department of Health and Human Services, Social Security Administration, Field Assessment Office, Atlanta, Georgia, shall:

1. Cease and desist from:

(a) Changing job duties and working conditions of bargaining unit employees, and requiring Quality Review Specialists to conduct training programs using videotapes and answering questions in the local Social Security Offices without first notifying American Federation of Government Employees of its intention to require the performance of such job duties, and affording it the opportunity to negotiate to the extent consonant with law and regulations about the procedures that management will observe in requiring bargaining unit employees to perform such job duties and concerning the impact such changes will have on adversely affected employees.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of 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) Rescind the instructions that require Quality Review Specialists to conduct training programs using videotapes and answering questions in the local Social Security Offices.

(b) Notify American Federation of Government Employees of any intention to change the duties of the Quality Review Specialists by requiring them to conduct training programs using videotapes and answering questions in the local Social Security Administration Offices and, upon request, to consult and negotiate with such representatives concerning the impact and implementation of such change.

(c) Post at its facilities within the Field Assessment Offices in the Atlanta Regional Offices copies of the attached notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by an appropriate official, and shall be posted and maintained for [ v11 p430 ] 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices customarily are posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material.

(d) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region Four, Atlanta Region, in writing, within 30 days from the date of this order as to what steps have been taken to comply with this Order.

Samuel A Chaitovitz
Administrative Law Judge

Dated:  January 28, 1981
        Washington, D.C.

[ v11 p431 ]

APPENDIX

             NOTICE TO ALL EMPLOYEES
                   PURSUANT TO
            A DECISION AND ORDER OF THE
         FEDERAL LABOR RELATIONS AUTHORITY
    AND IN ORDER TO EFFECTUATE THE POLICIES OF
           CHAPTER 71 OF TITLE 5 OF THE
                UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
       WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change job duties and working conditions of bargaining unit employees or Quality Review Specialists to conduct training programs using videotapes and answering questions in local Social Security Offices without first notifying American Federation of Government Employees of our intention to require the performance of such job duties, and affording it the opportunity to negotiate to the extent consonant with law and regulations about the procedures which management will observe in requiring bargaining unit employees to perform such duties and concerning the impact such changes will have on adversely affected employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL rescind the instructions that require Quality Review Specialists to conduct training programs using videotapes and answering questions in local Social Security Offices.

WE WILL notify American Federation of Government Employees of any intention to change the duties of Quality Review Specialists by requiring them to conduct training programs using videotapes and answering questions in local social Security Offices and upon request, negotiate with American Federation of Government Employees concerning the impact and implementation of such change.

                           ---------------------------
                             (Agency or Activity)

Dated:_________________ By:___________________________
                                  (Signature)

[ v11 p432 ]

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any or its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, whose address is: 1776 Peachtree Street, Suite 501 - North Wing, Atlanta, GA 30309, and whose telephone number is: (404) 881-2324. [ v11 p433 ]

FOOTNOTES

Footnote 1 The Respondent's designation was changed and corrected in the Complaint to Department of Health and Human Services, Social Security Administration, Field Assessment Office, Atlanta, Georgia (hereinafter called Respondent and/or FAO).

Footnote 2 The allegation that S