12:0704(134)CA - HHS, SSA and AFGE, National Council of SSA Field Assessment Locals -- 1983 FLRAdec CA



[ v12 p704 ]
12:0704(134)CA
The decision of the Authority follows:


 12 FLRA No. 134
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES
 SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, NATIONAL COUNCIL
 OF SOCIAL SECURITY ADMINISTRATION
 FIELD ASSESSMENT LOCALS
 Charging Party
 
                                            Case No. 5-CA-1140
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practice 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 and a brief in
 support thereof.
 
    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 recommendation that the complaint be
 dismissed.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 5-CA-1140 be, and
 it hereby is, dismissed.  
 
 Issued, Washington, D.C., August 30, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 5-CA-1140
 
    Mr. Wilson G. Schuerholz
       For the Respondent
 
    Mr. Earl Tucker
       For the Charging Party
 
    Claire R. Morrison, Esquire
       For the General Counsel
 
    Before:  GARVIN LEE OLIVER
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Five, Federal Labor Relations Authority,
 Chicago, Illinois against the Department of Health and Human , Services,
 Social Security Administration (Respondent).  The complaint alleged, in
 substance, that Respondent violated sections 7116(a)(1) and (5) of the
 Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et
 seq. (the Statute), by changing the specialized experience required for
 a claims examiner position without notifying the American Federation of
 Government Employees, AFL-CIO, National Council of Social Security
 Administration Field Assessment Locals (Charging Party or Union) and
 bargaining on the additional requirement and on its impact and
 implementation.  Respondent's Answer denied that it had made any such
 change or violated the Statute.
 
    A hearing was held in this matter in Chicago, Illinois.  The
 Respondent, General Counsel, and Charging Party were represented and
 afforded full opportunity to be heard, adduce relevant evidence, examine
 and cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record herein, /1/ including my observation of the witnesses and
 their demeanor, the exhibits, other relevant evidence adduced at the
 hearing, and the briefs, I make the following findings of fact,
 conclusions of law, and recommendation.
 
                             Findings of Fact
 
    At all times material herein, Respondent has maintained its principal
 office in Baltimore, Maryland and operated a facility at Chicago,
 Illinois known as the Office of the Regional Commissioner, Region V
 (Region Five).
 
    On August 30, 1979 the American Federation of Government Employees,
 AFL-CIO was certified as the exclusive representative of an appropriate
 unit of Respondent's employees employed at its operations, activities,
 facilities, areas, and districts previously represented by the Union in
 separate bargaining units.  At all times material herein, the American
 Federation of Government Employees, National Council of SSA Field
 Assessment Locals has served as agent of the American Federation of
 Government Employees, AFL-CIO, acting on its behalf with respect to the
 bargaining unit employees at, but not limited to, the Chicago facility.
 
    Federal Personnel Manual 338-7, Subchapter 3, Qualification
 Standards, of May 16, 1979, provides, in part, that "Qualification
 standards control the movement of employees into and within the Federal
 service by prescribing the experience, skills, knowledges, and abilities
 required for filling positions.  The person to be selected for any
 position in the competitive service (whether under the General Schedule
 or not) must meet the standard the OPM has established for that
 position." (Respondent's Ex. 9).  Likewise, Federal Personnel Manual
 Letter 335-12, Revised Federal Merit Promotion Policy, of December 29,
 1978 provides, in part, that "To be eligible for promotion or placement,
 candidates must meet the minimum qualification standards prescribed by
 the Office of Personnel Management." (Respondent's Ex. 4).  The
 applicable Region Five Merit Promotion Plan of June 5, 1975 also has a
 similar provision, as follows:
 
          Minimum qualification standards prescribed by the U.S. Civil
       Service Commission apply to positions filled under the provisions
       of this plan.  Eligibility for consideration will be determined by
       the Regional Personnel Officers or his designee.  Requirements may
       not be modified after the promotion process is under way unless an
       inappropriate standard has been used through error or the
       Commission issues a revised standard.  (Respondent's Ex. 7, p. 9).
 
    Federal Personnel Manual Supplement 330-1, Examining Practices,
 November 1972, provides, in part, that examination announcements shall
 include the qualification requirements for the position "(u)sually
 described in general terms." The supplement notes that complete
 qualification standards for general schedule positions are set forth in
 CSC Handbook X-118.  (Respondent's Ex. 3).  Federal Personnel Manual
 335-12, Promotion and Internal Placement, of October 25, 1973, also
 states, "when it is not practicable to spell out in detail some part of
 this information (duties, qualifications, etc.), the announcement
 informs employees where the information can be obtained (for example, in
 the promotion plan)." (Respondent's Ex. 5).
 
    The single-agency qualification standard developed by the Civil
 Service Commission (CSC) in 1963 for several positions, including Social
 Insurance Claims Specialist (Disability), provides, in part, as follows
 concerning the need for specialized experience:
 
          For positions at GS-9 and above, at least 1 year of the
       specialized experience must have included the development,
       examination, investigation, adjudication, or authorization of
       claims for disability retirement, disability and death
       compensation, or administrative or other experience in the
       analysis, development, or review of a disability and death
       compensation program, or a disability retirement program.  This
       experience must have:
 
          1.  provided a knowledge of claims analysis and adjudication,
       medical terms and findings, causes of diseases, treatment methods
       and probable results, relations of physical impairment to ability
       of claimant to work;  and
 
          2.  demonstrated the ability to develop and evaluate pertinent
       medical facts and evidence and to apply and interpret laws,
       regulations, policies, precedents, and other criteria for
       disability and death cases.
 
          Such experience may have been gained in one or a combination of
       the following ways:  the practice of law which has included to a
       major extent the development of disability and death or workmen's
       compensation claims;  experience in a Federal or State workmen's
       compensation program;  experience in a Federal or State agency, or
       in an insurance company administering a disability and death
       compensation program or disability insurance program;  or
       experience in Government or private industry in a disability
       retirement or disability pension program.  (Respondent's Ex. 10).
 
    The individual staffing specialist prepares the summary of
 qualifications for a vacancy announcement.  The summary may vary from
 posting to posting.  However, it must reference the applicable
 qualification standard, which is available to applicants and employees
 upon request.  (Tr. 58-59).
 
    On or about May 4, 1979 Respondent issued a vacancy announcement for
 Social Insurance Claims Examiner (Disability) (Disability Reviewer),
 GS-993-12.  The announcement referenced the CSC Handbook, X-118, GS-993
 qualification standard and contained the following under specialized
 experience:
 
          Specialized Experience:  Three years of experience in the
       development, examination, investigation, adjudication or
       authorization of claims for retirement, old-age or survivor's
       insurance, disability insurance, pension claims, health insurance,
       income maintenance, supplemental security income, and related
       programs or experience that provided a broad knowledge of the
       policies and provisions of the Social Security insurance program
       and an understanding of how the program is related to other social
       insurance programs of the Federal and/or other governments.  In
       addition to qualify for these vacancies applicants must have had
       either formal disability training or one year of experience as a
       Social Insurance Claims Examiner (Disability).  (General Counsel's
       Ex. 5).
 
 In late May 1979, Earl P. Tucker, Jr., president of the Charging Party
 and a vice president of Local 1395, contacted John D. Alcock, chief of
 the staffing branch of Region V of the Department of Health and Human
 Services, concerning the announcement.  Mr. Tucker objected to the last
 sentence requiring "either formal disability training or one year of
 experience as a Social Insurance Claims Examiner (Disability)." He
 stated that the requirement would rule out many bargaining unit
 employees from qualifying for the position.  (Tr 20, 64).  Subsequently,
 Mr. Tucker confirmed his objection by letter dated May 25, 1979, noting
 that the requirement had not been on prior announcements and requesting
 that the announcement be reposted without the above statement.  (General
 Counsel's Ex. 3).
 
    Mr. Alcock reviewed the qualification standard and determined that
 the standard made no reference to formal disability training as a
 minimum requirement.  As to the requirement for one year of experience
 as a Social Insurance Claims Examiner, Mr. Alcock determined that,
 although such experience was qualifying, the announcement was too
 restrictive, as the standard did not limit consideration of disability
 claims experience to that gained in a Social Insurance Claims Examiner
 position.  Mr. Alcock advised Mr. Tucker that the announcement would be
 amended to remove the statement.  (Tr. 65-67;  General Counsel's Ex. 4).
 
    The announcement was amended to remove the objectionable last
 sentence, and the closing date was extended.  (General Counsel's Ex. 5).
  The one year disability claims experience, as specified in the
 standard, was still required and considered in evaluating applicants for
 eligibility.  (Tr 69).
 
    On or about December 2, 1980 Respondent issued another vacancy
 announcement for the same position.  The CSC qualification standard was
 referenced as before.  However, there was added under "specialized
 experience," the sentence, "At least one year of the specialized
 experience must have been in Disability Claims." (General Counsel's Ex.
 7).  No prior notice of this action was provided to the Union.
 
    By letter dated January 23, 1981, Donald Jones, president, AFGE Local
 1395, advised Respondent that the requirement for one year of disability
 claims experience violated the previous agreement with the Union to
 delete the disability experience requirement, represented a change from
 past practice, and should have been negotiated with the Union.  Mr.
 Jones made the following proposals for negotiation:
 
          1.  Posting EOO-168 (CR-238) should be withdrawn and an amended
       posting issued to remove any reference to a requirement for
       Disability experience.  This would allow those employees to file
       who did not file previously because they did not believe they
       would be found eligible.
 
          2.  No appointments to the position should be made until
       negotiations with the Union have been complete.  (General
       Counsel's Ex. 8).
 
    By letter dated January 29, 1981, Robert P. Flynn, field assessment
 officer, advised Mr. Jones, "Qualifications requirements are not matters
 within the discretion of FAO management and, consequently, not matters
 on which the FAO may negotiate." (General Counsel's Ex. 9).
 
    The requirement of one year specialized experience in disability
 claims excludes a large number of unit employees from qualifying for the
 position.  Most of the work modules do not deal with disability claims
 or cases.  Consequently, the majority of unit employees do not have
 disability claims experience.  (Tr. 25, 26, 47).
 
               Discussion, Conclusions, and Recommendations
 
    The General Counsel and Charging Party contend that the December 2,
 1980 requirement for one year of specialized experience in disability
 claims for the Social Insurance Claims Examiner position constituted a
 unilateral change in what had become an established condition of
 employment.  As urged by Respondent, a preponderance of the evidence
 does not support this position.
 
    The evidence reflects that the requirement for one year of
 specialized experience in disability claims has been consistently
 required since 1963 in accordance with the CSC, now OPM, qualification
 standard.  The understanding reached in 1979 that Respondent would
 delete from the May 1979 vacancy announcement the requirement for formal
 disability training or one year of experience as a Social Insurance
 Claims Examiner (Disability) did not constitute an agreed change in the
 minimum qualification standard for the position.  It was, rather, in
 accordance with the standard.  It was an acknowledgement that the 1979
 announcement was not an accurate summary of the standard.
 
    Respondent has not imposed an additional requirement or made a