15:0614(132)CA - SSA and AFGE Local 1923 -- 1984 FLRAdec CA



[ v15 p614 ]
15:0614(132)CA
The decision of the Authority follows:


 15 FLRA No. 132
 
 SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1923, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-20154
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  The General Counsel
 filed exceptions 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, the Authority hereby adopts the
 Judge's findings, conclusions and recommendation that the complaint be
 dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20154 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., August 28, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    John J. Barrett, Esquire
    Ronald Blavatt, Esquire
    For the Respondent
 
    Sharon Prost, Esquire
    For the General Counsel
 
    Ms. Elaine M. Minnick
    For the Charging Party
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the Statute"),
 and the Rules and Regulations issued thereunder.
 
    The Complaint alleges that on or about October 1, 1981, the
 Respondent unilaterally discontinued the established past practice of
 providing periodic physical examinations for bargaining unit employees
 assigned to Respondent's Baltimore, Maryland Headquarters, and
 represented by American Federation of Government Employees, Local 1923,
 AFL-CIO (Charging Party or Union);  and further that such conduct
 involved unfair labor practices within the meaning of Sections
 7116(a)(1) and (5) of the Statute.
 
    During the course of the hearing counsel representing the General
 Counsel stipulated that the allegations of the complaint related solely
 to alleged discontinuance of periodic follow-up physical examinations
 for employees with more than two years of service, and that it was not
 contended that initial examinations provided for employees with more
 than 18, or less than 24 months of service, were discontinued by the
 Respondent (Tr. 100-102).  Also, there was no issue concerning the
 Respondent's willingness to negotiate with the Union concerning a new
 program proposed by Respondent to replace the follow-up physical
 examination program (General Counsel's Brief at pages 7-8).
 
    The Respondent contended that the collective bargaining agreement
 governing the relations of the parties at the time provided for
 subsequent scheduling of follow-up physical examinations after the first
 two years of service, "in accordance with good medical practice," and
 further that current medical thinking provided a basis for a
 determination that follow-up examinations were not in accord with "good
 medical practice." Relying on this contention counsel argued that the
 case essentially involved differing interpretations of the collective
 bargaining agreement, and that these issues should have been resolved
 through the grievance and arbitration procedure provided in the
 agreement.
 
    The parties were represented by counsel during the hearing and were
 afforded full opportunity to be heard, adduce relevant evidence, and
 examine and cross-examine witnesses.  Post-hearing briefs were received
 from counsel representing the General Counsel and counsel representing
 the Respondent.  Based upon the entire record herein, including my
 observations of the witnesses and their demeanor, the exhibits and other
 relevant evidence adduced at the hearing, /1/ and the briefs filed, I
 make the following findings of fact, conclusions and recommendations.
 
                             Findings of Fact
 
    The parties stipulated that Respondent's practice of providing
 follow-up physical examinations after the first two years of employment
 was discontinued on or about October 1, 1981 (Tr. 99-102).  The record
 disclosed that from September 15, 1977 through the year 1981, and a
 portion of 1982, the parties were governed by a collective bargaining
 agreement which provided for periodic physical examinations in specific
 terms (G.C. Exh. 2, Article 13, Section C(2) at page 67).  Article 13,
 Section C(2) of the agreement reflects the following:
 
          The Administration will make every effort to make comprehensive
       physical examinations available to employees who wish to
       participate in the program.  Employees will be scheduled to
       participate in the program after 18 months but before 24 months of
       continuous Federal service.  Subsequent physical examinations will
       be scheduled in accordance with good medical practice.  /2/
 
    On August 30, 1979, the American Federation of Government Employees,
 AFL-CIO, was certified as the exclusive representative for a
 consolidated nationwide bargaining unit consisting of 211 previously
 separate units within the Social Security Administration, including
 bargaining unit employees represented by the Charging Party at Social
 Security Administration Headquarters Bureaus and Offices of the
 Baltimore Metropolitan Statistical Area.  Negotiations leading to a
 nationwide collective bargaining agreement commenced on June 10, 1980,
 and concluded on December 21, 1981.  A nationwide agreement was signed
 in June of 1982.  However, after consolidation, and before execution of
 the nationwide agreement, the Respondent and the Charging Party were
 governed by the local collective bargaining agreement which became
 effective on September 15, 1977 (G.C. Exh. 2).  /3/
 
    Unlike the local agreement entered into by the Respondent and the
 Charging Party in September of 1977, the nationwide collective
 bargaining agreement does not provide for physical examinations, but
 instead indicates that issues relating to health service needs would be
 resolved by the parties through future cooperation.  It provides:
 
          Section 6 - Identification of Local Health Service Needs
 
          The Administration and the Union recognize the need and agree
       to cooperate in identification of local health service needs, such
       as emergency treatment of illness or injury on the job, periodic
       testing for early detection of chronic diseases or disorders,
       immunization programs, periodic medical examination programs and
       health education (G.C. Exh. 10).  /4/
 
    Early in 1980, Dr. David Fouts, a Medical Officer assigned to
 Respondent's Division of Employee Health and Occupational Safety, began
 to examine what he considered "the questionable utility and quality" of
 the practice of providing physical examinations for bargaining unit
 employees represented by the Charging Party, with a view toward
 improvement in terms of detection and prevention of disease (Tr. 125).
 The record disclosed that Dr. Fouts had extensive background and
 experience in medical specialties relating to preventive medicine, and
 employee occupational health and safety (Tr. 140-143).  Dr. Fouts' study
 continued into the early part of 1981 (Tr. 125).  He reached the
 conclusion that from a medical standpoint, it would be better to
 discontinue periodic follow-up physical examinations being provided,
 than it would be to continue offering them according to the practice
 followed by the Respondent for a number of years (Tr. 151).  He
 recommended that Respondent focus on specific problems related to
 exposure in the work place, or specific diseases posing special
 problems;  that a change in the program would make more sense from a
 medical point of view;  and also noted that numerous other institutions
 or authorities had recently reached similar conclusions concerning
 physical examinations of the type in question (Tr. 150-152).  According
 to his evaluation, periodic follow-up examinations of the type in issue
 were a waste of time and money (Tr. 153).
 
    Dr. Fouts' recommendations were based upon a statistical analysis of
 medical records relating to bargaining unit employees examined under the
 program in place at Respondent's headquarters offices, and were related
 to his close involvement with the administration of physical
 examinations provided for bargaining unit employees herein involved.  He
 also relied upon a study of medical literature in the John Hopkins
 University Medical School Library (Tr. 145-146, 148-149, 152).  /5/ He
 concluded that medical literature also provided a basis for a
 determination that routine periodic follow-up medical examinations
 should be discontinued.  James Smith, then Program Manager for the
 Division of Occupational Health and Safety, reached an identical
 conclusion based upon a study of medical literature and the statistical
 study of medical records relating to bargaining unit employees (Tr.
 134-135).
 
    Based upon the evidence gathered and conclusions reached, Dr. Fouts
 and Mr. Smith endeavored to persuade representatives of the Charging
 Party, during a meeting in June of 1981, that follow-up examinations
 should be discontinued and that the Union should accept a new program
 based upon Respondent's perception of "good medical practice." Failing
 in this Respondent sought to engage the Charging Party in negotiations
 concerning the composition of the alternative program proposed (Tr.
 37-38, 127-129, 137-138).  The alternative program, entitled "New
 Directions for SSA Health Program," was presented to the Charging Party
 at the meeting (Tr. 90, 93, G.C. Exh. 11).  It would have involved
 specific examinations designed to detect and/or prevent cancer,
 hypertension, glaucoma, allergies, diabetes;  and other health related
 measures.
 
    The Union took the position that the periodic follow-up physical
 examination program should not be changed (Tr. 38).  Harold D. Roof,
 President of the Charging Party expressed this position in a July 2,
 1981 memorandum to the Respondent (G.C. Exh. 5).  In the memorandum he
 noted that the Charging Party refused to waive rights accorded the Union
 under Article 13, Section C of the collective bargaining agreement then
 in effect, and further that Article 13 was then being considered in
 connection with negotiations designed to reach a nationwide agreement
 based upon the consolidated bargaining unit established on August 30,
 1979.
 
    By memorandum dated August 31, 1981, the Respondent took steps to
 cancel requisitions designed to procure examining physicians (G.C. Exh.
 3).  On September 1, 1981 representatives of the Respondent and Charging
 Party met to discuss the issue.  Again, the Respondent endeavored to
 persuade the Charging Party to accede to discontinuance of periodic
 follow-up examinations, and to adopt the alternatives proposed.
 However, the Respondent was still not willing to negotiate the issue of
 discontinuance of follow-up examinations.  The Charging Party opposed
 discontinuance and insisted that the issue would have to be negotiated.
 
    By letter dated September 23, 1981, the Respondent advised the
 Charging Party that "contemporary research and current medical opinion
 hold that there is little value in performing repetitive routine
 physical examinations" (G.C. Exh. 12).  The letter indicated that
 follow-up physical examinations for Respondents' headquarters employees
 would not be made available because they were not deemed to be in accord
 with good medical practice.  The Charging Party responded by letter
 dated October 5, 1981, insisting that the Respondent had no right to
 discontinue the practice (G.C. Exh. 7).  The letter also indicated that
 discontinuance constituted a breach of the collective bargaining
 agreement.  It contained the following statement:
 
          It is obvious that while the September 23, 1981 letter
       indicates compliance with the General Agreement, the evidence in
       our possession supports non-compliance with the General Agreement
       and the Civil Service Reform Act.  /6/
 
    By letter dated November 17, 1981, addressed to the Charging Party,
 the Commissioner of Social Security reiterated the Respondent's position
 as follows:
 
          We acknowledge the fact that follow-up examinations have been
       conducted in the past.  However, Article 13, Section C.2. of the
       General Agreement states that 'Subsequent physical examinations
       will be scheduled in accordance with good medical practice.'
       Current medical thinking based on evidence gathered from various
       medical studies is that routine physical examinations do little to
       promote the health of those examined.  Medical experts have also
       found that the results of these examinations often yield little
       information that the patient is not already aware of or would not
       be discovered through some other medical protocol.  Therefore, we
       believe that our decision to discontinue repetitive or follow-up
       examinations is in accordance with good medical practice as it
       exists today and at the same time is consistent with the terms of
       the General Agreement.  We will, of course, continue to offer
       physical examinations to headquarters employees after 18 months
       and before 24 months of continuous Federal service (G.C. Exh. 8).
 
                        Discussion and Conclusions
 
    It is well settled that alleged unfair labor practices which
 essentially involve differing and arguable interpretations of a
 negotiated agreement, as distinguished from alleged actions which
 constitute clear and patent breaches of a negotiated agreement, are not
 deemed to be violative of the Statute.  In such cases the aggrieved
 party's remedy lies within the grievance and arbitration procedures in
 the negotiated agreement rather than through unfair labor practice
 procedures.  Iowa National Guard and National Guard Bureau, 8 FLRA No.
 101 (1982), 8 FLRA 500;  Division of Military and Naval Affairs, State
 of New York, Albany, New York, 8 FLRA No. 71 (1982), 8 FLRA 307;  U.S.
 Patent and Trademark Office, 3 FLRA No. 123 (1980), 3 FLRA 824;
 Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3
 FLRA No. 82 (1980), 3 FLRA 512;  Department of the Navy, Naval Weapons
 Station, Concord, California, 1 FLRA No. 13 (1979), 1 FLRA 133.
 
    The gravamen of the charge and the complaint lies in the contention
 that the Respondent breached Article 13, Section C(2) of the collective
 bargaining agreement.  In fact, counsel representing the General Counsel
 places heavy reliance upon an interpretation of this contractual
 provision, and argues that the conduct herein was "flagrantly,
 inconsistent with and in breach of the clear contract language" (Tr.
 201).  /7/
 
    It is not possible to reach the conclusion argued by counsel
 representing the General Counsel without rendering an interpretation of
 the collective bargaining agreement governing the labor relations of the
 parties.  Moreover, the record does not reflect that Respondent's
 conduct constituted a clear and patent breach of Article 13, Section
 C(2).  It is at least arguable that the language utilized imposed a
 condition upon the continuation of the program, that is, the condition
 that such follow-up examinations be scheduled only so long as making
 them available accorded with "good medical practice." Put another way,
 the language of the contract might be construed as evidence that the
 parties envisioned reliance upon the existence of a "good medical
 practice" basis for continuation of the follow-up physical examination
 program.  Without making any finding here as to what constitutes "good
 medical practice," it is noted that the record reflects that the
 Respondent relied upon what was deemed to be "good medical practice," as
 a basis for proposed changes and discontinuance;  and further that there
 was a clear difference of position as to whether the proposed changes
 and discontinuance were justified from a medical standpoint.
 
    As noted, if the Respondent was breaching the agreement it is not at
 all clear that the breach was clear and patent.  Moreover, even assuming
 the existence of a breach, it cannot be concluded under the
 circumstances presented that Respondent's decision to insist upon a
 modification of the program to conform to Respondent's perception of
 "good medical practice," constituted a rejection of the collective
 bargaining agreement in violation of the Sections 7116(a)(1) and (5).
 It is necessary that such a finding be made in order to base an unfair
 labor practice on the breach.  U.S. Customs Service, Region VII, Los
 Angeles, California, 10 FLRA No. 47 (1982), 10 FLRA 251;  Kaiserlautern
 American High School, Department of Defense Dependents Schools, Germany
 North Region, 9 FLRA 28 (1982), 9 FLRA 184.  In the context of a
 grievance and subsequent arbitration proceeding, Respondent's position
 might have been interpreted as one upholding the intent of the parties
 to the collective bargaining agreement.  Similarly, this case may be
 distinguished from those wherein a unilateral suspension of the entire
 collective bargaining agreement was found to have violated sections
 7116(a)(1) and (5).  Veterans Administration Hospital, Danville,
 Illinois, 4 FLRA No. 59 (1980);  Great Lakes Program Service Center,
 Social Security Administration, Department of Health and Human Services,
 Chicago, Illinois, 9 FLRA No. 58 (1982), 9 FLRA 499.
 
    The record in this case justifies a finding that this case does not
 involve a simple discontinuance of the follow-up physical examination
 program, but rather an unsuccessful effort on Respondent's part to make
 that program more nearly conform to what Respondent deemed to be "good
 medical practice." The Respondent's rejection of the follow-up
 examination program, and the Union resistance to the change proposed may
 or may not have been justified.  This issue should have been resolved
 under the grievance and arbitration procedures in the collective
 bargaining agreement governing the parties.
 
    Although it is true that the Respondent did provide follow-up
 physical examinations for a number of years, the examinations made
 available were provided under the provisions of collective bargaining
 agreements.  It should be noted this is not a case involving issues of
 whether or not a past practice developed into a term and condition of
 employment.  This contention completely overlooks the existence of the
 underlying contractual dispute.  Accordingly, legal principles governing
 cases relating to whether a past practice has ripened into a term and
 condition of employment, and cases relating to the duty to bargain at
 the exclusive level of recognition following a consolidation of units,
 are inapplicable.
 
    Upon the basis of the foregoing, it is recommended that the Authority
 issue the following Order pursuant to 5 C.F.R. 2423.29(c).
 
                                   ORDER
 
    IT IS HEREBY ORDERED, that the complaint in Case No. 3-CA-20154, be,
 and it hereby is, dismissed.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
    Dated:  January 21, 1983
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Under the authority provided in Section 2423.19(r) of the
 Regulations, 5 C.F.R. 2423.19(r), the following corrections are made in
 the hearing transcript:
 
    Page Line Change To
 
    166 16 "locate" "negotiate"
 
    168 6 "22" "11"
 
    181 2 "tighten up" "tie this up to"
 
    201 6 "3" "C"
 
    210 7 "fact" "face"
 
 
    /2/ Prior collective bargaining agreements governing the parties
 going back to at least August 31, 1972 contained nearly identical
 language (Tr. 52-53).  As noted, a stipulation entered into the record
 reflects that no issue is raised concerning initial physical
 examinations provided to bargaining unit employees during the six-month
 period preceding completion of two years of continuous service.
 
 
    /3/ See Section 2422.2(h)(8), 5 C.F.R. 2422.2(h)(8).  The record also
 reflects that the parties agreed to be so governed (General Counsel's
 Brief at page 2, and Tr. 81, 83-84).
 
    The complaint also alleges that the unilateral termination of the
 practice of providing periodic physical examinations occurred while the
 issue relating to such examinations was subject to negotiations at the
 agency level, the level of exclusive recognition;  and further that the
 Respondent refused to elevate this issue to the level of exclusive
 recognition for negotiations.  However, there is no indication in the
 record that the Respondent refused to negotiate on any issue at the
 level of exclusive recognition.  Although not significant for the
 purpose of resolving issues posed in this case, it is noted that counsel
 representing the General Counsel argues that the Respondent refused to
 raise the issue to the agency level for bargaining purposes, while at
 the same time contending that the issue was made the subject of
 bargaining at the agency level.
 
 
    /4/ This provision suggests that both parties recognized that a
 change had in fact occurred with respect to Respondent's making
 provision for periodic follow-up physical examinations, as they are not
 specifically provided for in the agreement.
 
 
    /5/ Dr. Fouts did acknowledge the existence of contrary medical
 opinions on cross-examination by counsel representing the General
 Counsel (Tr. 153).  Other cross-examination reflects an attempt to probe
 into Respondent's reliance upon the concept of "good medical practice"
 as a basis for the change (Tr. 133, 135-137).  However, the brief filed
 on behalf of the General Counsel acknowledges that "the utility of
 periodic examinations may have been the subject of some good faith doubt
 in the minds of several individuals at SSA. . . . " (General Counsel's
 Brief at 16).
 
 
    /6/ Mr. Roof's letter clearly indicates that Respondent's conduct was
 seen as a breach of the collective bargaining agreement.  Mr. Roof's
 testimony also suggests that the Respondent's action was perceived as a
 breach of the collective bargaining agreem