12:0108(30)CA - HHS, SSA, Bureau of Field Operations, San Francisco, CA and AFGE Council of SS District Office Locals, San Francisco Region -- 1983 FLRAdec CA
[ v12 p108 ]
The decision of the Authority follows:
12 FLRA No. 30 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, BUREAU OF FIELD OPERATIONS, SAN FRANCISCO, CALIFORNIA Respondent and AFGE COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION Charging Party Case Nos. 9-CA-320 9-CA-322 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaints, and recommending that the complaints be dismissed. No exceptions were filed 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, and noting especially the absence of exceptions, the Authority hereby adopts the Judge's findings, conclusions and recommendations. ORDER IT IS HEREBY ORDERED that the complaints in Case Nos. 9-CA-320 and 9-CA-322 be, and they hereby are, dismissed. Issued, Washington, D.C., June 2, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY Case Nos.: 9-CA-320, 9-CA-322 -------------------- ALJ$ DECISION FOLLOWS -------------------- Wilson Schuerholz, Esquire For the Respondent Nancy E. Pritikin, Esquire For the General Counsel Vince Morgante, Chief Steward For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.Section 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411, et seq. Pursuant to separate charges filed on February 11, 1980, in Case Nos. 9-CA-322 and 9-CA-320, by AFGE Council of Social Security District Office Locals, San Francisco Region, (hereinafter called the Union), complaints and notices of hearing were issued on May 19 and April 30, 1980, respectively, by the Regional Director for Region IX, Federal Labor Relations Authority, San Francisco, California. The complaints, which were consolidated at the hearing, allege that the Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, (hereinafter called the Respondent or SSA), violated Sections 7116(a)(1) and (5) of the Federal Labor-Management Relations Statute, (hereinafter called the Statute), by unilaterally (1) making attendance at weekly staff meetings mandatory and (2) transferring work from the Branch Office to the District Office, without giving prior notice of such changes to the Union and affording it the opportunity to bargain over the impact and the manner of implementation of such changes. /1/ A hearing was held in the captioned matter on September 23, 1980, in San Francisco, California. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The parties submitted post hearing briefs on November 7, 1980, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law and recommendations. Findings of Fact Respondent operates a District Office and two Branch Offices in San Francisco, California. The Branch Offices, known as the "Chinatown" and "Western Addition", are located only a few miles from each other and the District Office. The employees working in the District Office and the two Branch Offices do basically the same type of work. The Union, which is the charging party herein, is the exclusive representative of the employees working in the District Office and the two Branch Offices. Alleged unilateral change making attendance at weekly Staff Meetings mandatory: During the period of time when the alleged violations occurred, employees working in the District Office of Respondent were on flexitime. The flexible bands were from 7 a.m. - 9 a.m. and 3:30 p.m. - 5:30 p.m. Because of the flexitime schedule, many employees did not attend the weekly staff meetings held every Tuesday at 8 a.m. On October 23, 1979, Mr. Kenneth Krueger, the newly appointed Operations Officer, distributed a notice to all employees and posted a copy of same next to the time clock. The notice informed the employees that henceforth attendance at the Tuesday weekly staff meetings would be mandatory. Mr. Krueger also made a similar announcement at the staff meeting held on October 23, 1979. Thereafter, beginning with the staff meeting held on October 30, 1979, employees who failed to attend the weekly staff meetings were forced to take annual leave. According to Mr. Krueger, whom I credit, the October 23rd notice was prompted by the non-attendance of some 10 to 20 employees /2/ at the October 16, 1979, staff meeting which consisted of a presentation by Mr. Jere McEvilly, a Supervisory Social Insurance Specialist from Respondent's Regional Office. /3/ Mr. McEvilly discussed the new IRS procedures for employers reporting social security wage information to IRS and how the SSA employees would be involved. Mr. Krueger further testified that he had met with Ms. Denise Chun, a union representative, on October 18, 1979, and discussed the employees non-attendance at the October 16th weekly staff meeting and informed her of his intention to make attendance at such future meetings , mandatory. Mr. Krueger told Ms. Chun that he was concerned about the non-attendance since the Flexitime Plan made it clear that staff meetings were considered a part of core time, a period in which all employees were to be at work. After studying the Flexitime Plan, Ms. Chun inquired as to how Mr. Krueger intended to handle the announcement of the change. Mr. Krueger informed Ms. Chun that he would make a desk to desk distribution and also post the announcement next to the time clock. According to Mr. Krueger, Ms. Chun expressed agreement. On October 24, 1979, Mr. Krueger, as per his past practice, sent Ms. Chun a copy of his "minutes" of the October 18th meeting. The "minutes" noted, among other things, that consultation of the mandatory attendance at weekly staff meetings was concluded, weekly staff meetings henceforth would be mandatory, and the staff will be so informed. On October 30, 1979, Ms. Chun, who had been on annual leave the week before, submitted a requested modification of Mr. Krueger's October 24th "minutes". The modification, among other things, noted that consultation with respect to mandatory attendance at weekly staff meetings "has not begun". Subsequently, Ms. Chun sent a number of written requests to Mr. Krueger for additional "consultation" on the weekly staff meeting issue. According to Ms. Chun, the first announcement concerning mandatory attendance at weekly staff meetings was made by Mr. Krueger at the October 16th staff meeting without any prior notice to the Union. /4/ Further, according to Ms. Chun, she then requested the meeting with Mr. Krueger which occurred on October 18th. Ms. Chun acknowledges that she and Mr. Krueger did discuss the mechanics of adequate notice to employees at the October 18th meeting but neither denies nor admits that she acceded to Mr. Krueger's proposal concerning mandatory attendance at weekly staff meetings. Unilateral Transfer of Cases From Chinatown Branch Office to District Office: On an unspecified date in October 1979, Respondent, due to a loss of a number of employees in the Chinatown Branch Office, transferred, without prior notice to the Union, approximately 40 overpayment cases to the District Office. A similar transfer involving approximately 100 cases was effectuated in November 1979. The cases were assigned to Ms. Hallie Evans for processing. According to Ms. Evans, who normally processes approximately 4000 similar, if not identical, cases per year, she was told to work the Chinatown cases into her never ending log of pending overpayment cases. With respect to the method or manner of processing overpayment cases, it was Ms. Evans responsibility to compute the amount of overpayments and have a number of typists send appropriate letters to the respective recipients of the overpayments. In the event a reply to the letters was not received within a 30 day period, a telephone or field contact was then attempted. Of the approximately 140 Chinatown Branch overpayment cases reassigned to Ms. Evans, some 80 were subsequently returned to the Chinatown Branch for future field contact. Further, according to Ms. Evans, she finished all her required work on the Chinatown cases by January 1980. Ms. Evans testified with respect to time targets for the processing of overpayment cases as follows: Q. Do you have anything like time targets or any kind of time, optimum time? A. Well, I personally don't like to see a name on a list that was on a previous list, but it is impossible because of some of the cases and the situations that are involved. I don't really have any deadline. Q. Are there any processing goals? A. We have them, yes. Q. What are your processing goals? A. I'm not-- well, on non pay cases I would say about 60 days, if possible. /5/ Discussion and Conclusions Both parties correctly acknowledge that resolution of the issue concerning mandatory attendance at weekly staff meetings turns on credibility. Thus, Respondent takes the position that the evidence supports its position that it did give notice and bargain to agreement before making attendance at the weekly staff meetings mandatory. The General Counsel, of course, argues to the contrary. Based primarily on his demeanor and the corroborating testimony of Mr. McEvilly concerning what occurred at the October 16, 1979, meeting, I credit Mr. Krueger's testimony that he did give notice to, and bargain to agreement with, the Union prior to announcing on October 23, 1979, that henceforth attendance at weekly staff meetings would be mandatory. Accordingly, I shall recommend that the complaint in Case No. 9-CA-320 be dismissed in its entirety. Turning now to the second issue, i.e. unilateral transfer, without prior notice to the Union, of approximately 100-120 overpayment cases from the Chinatown Branch to the District Office. Resolution of this issue turns on whether or not the transfer impacted on the working conditions of the District Office unit personnel. In the absence of any showing of impact on unit personnel, Respondent was under no obligation to give notice to, and bargain with, the Union over such transfer. Contrary to the contention of the General Counsel, I find that the record falls short of establishing that the transfer of the overpayment cases resulted in any significant impact on the District Office unit personnel. In fact on the basis of the record, I am hard pressed to find any impact other than a possible speculative one. Thus, it is noted that Ms. Evans, the employee primarily affected by the transfer, testified that the cases were to be worked in to her every day work load as she had time, that there would be no consequences if she "had processed them late", and that if there were any time targets, such time targets were 60 days if possible. In the absence of any showing of established and/or enforced time targets for processing cases, I can not find that a 3% increase in an employee's yearly case load, due to an emergency situation, created any significant impact on the employee's working conditions. Cf. Social Security Administration, Bureau of Hearings and Appeals and AFGE, Local 3615, 2 FLRA No. 27; Department of Defense, Air National Guard, Texas Air National Guard, Camp Mabry, Austin, Texas, wherein similar results were reached under Executive Order 11491, as amended. Accordingly, I shall recommend that the Complaint in Case No. 9-CA-322 be dismissed in its entirety. Having concluded that Respondent did not violate Sections 7116(a)(1) and (5) of the Statute, I recommend that the Authority adopt the following order: ORDER It is hereby ordered that the complaints in Case Nos. 9-CA-320 and 9-CA-322 should be, and hereby are, dismissed in their entirety. BURTON S. STERNBURG Administrative Law Judge Dated: January 30, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ At the opening of the hearing, General Counsel was granted leave to withdraw the allegations set forth in the May 19th consolidated complaint which were predicated on charges filed in Case Nos. 9-CA-196, 9-CA-333 and 9-CA-334. Accordingly, the only issues left for resolution are those set forth supra. /2/ The record indicated that only about 70 of the 90 employees in the District Office attended the October 16th meeting. /3/ The San Francisco District Office and 56 other District Offices comprise the Region. /4/ According to Ms. Chun, there were approximately 70 employees present at the October 16th meeting. Ms. Chun further testified that in addition to Mr. Krueger's announcement concerning the mandatory nature of the weekly staff meetings, there "probably" was a discussion of statistics and vacancies. Mr. Krueger denies making the announcement on October 16th and points out that the entire meeting was taken up by Mr. McEvilly's presentation. Mr. McEvilly corroborates Mr. Krueger's testimony. According to Mr. McEvilly, he arrived at the meeting about 7:50 a.m. and remained in the meeting area until 9 a.m. Further, his presentation consumed the whole period and he did not hear any announcements. The only other evidence in the record concerning the weekly staff meetings is the testimony of Ms. Dianne Lawrence. According to Ms. Lawrence, she recalls two meetings in 1979 wherein it was announced that attendance at weekly staff meetings would be mandatory. She does not, however, have any recollection of the dates of such meetings. /5/ No other probative evidence concerning time targets or case processing goals for overpayment cases appears in the record.