15:0922(174)CA - HHS, SSA, Chicago Region and AFGE -- 1984 FLRAdec CA
[ v15 p922 ]
The decision of the Authority follows:
15 FLRA No. 174 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION CHICAGO REGION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 5-CA-482 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. Thereafter, the Charging Party 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 Recommended Order, as modified below. The complaint alleges, in substance, that the Department of Health and Human Services, Social Security Administration, Chicago Region (Respondent), violated section 7116(a)(1) and (5) of the Statute by unilaterally changing terms and conditions of employment and by refusing to bargain concerning the impact and implementation of the change. As noted by the Judge, prior to January 1979, a practice existed for the Claims Representative who initiated and adjudicated a claim for Supplemental Security Income Benefits to transpose the information from the claims folder onto a computer input form. An 8080 document, the computer generated printout of the input information, was transmitted back to the initiating District or Branch Office for review by a Claims Representative in order to verify if the information which had reached the agency computer system agreed with the information in the claims folder. The 8080 document could be reviewed by the same Claims Representative who had initiated and adjudicated the claim. In December 1978, the Social Security Administration Central Office issued a Program Manual System (POMS) instruction which changed the above system by mandating that effective January 1, 1979, the review of an 8080 document could only be done by a Claims Representative or an authorized employee other than the person who authorized the initial claim input. The new 8080 review procedures was finally implemented in Respondent's Chicago Region on February 19, 1980. By letter dated March 5, 1980, the Union requested to bargain with the Respondent; the Respondent refused such request on April 1, 1980, asserting, among other things, that no change in the employees' working conditions had occurred that was sufficient to require negotiation. The Judge, in dismissing the complaint, found that the Respondent was under no obligation to bargain over the substance of the change in working conditions. In so finding, the Judge concluded first, without exception by either party, that the substance of the change in the 8080 review procedure involved the exercise of a nonnegotiable management right under section 7106(a) of the Statute because it related to the agency's internal security practices. Next, in applying a "substantial impact" test, the Judge concluded that the Respondent's December 1978 Program Manual instruction which separated the 8080 review from the authorization function did not constitute a substantial change in working conditions sufficient to require bargaining over the impact and implementation of the change on bargaining unit employees. For purposes of his decision, the Judge defined the term "substantial" as meaning something more than trivial or de minimis. Subsequent to the issuance of the Judge's Decision herein, the Authority, in U.S. Government Printing Office, 13 FLRA No. 39 (1983), stated that: Where an agency, in exercising a management right under section 7106 of the Statute, changes conditions of employment of unit employees, the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact is reasonably foreseeable. In such circumstances, where an agency exercises a management right but has failed to provide adequate prior notice thereof to the exclusive representative of its employees or has rejected a timely request for negotiations pursuant to section 7106(b)(2) and (3) of the Statute, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute. The Authority also noted that: This is not to say that an agency is required to notify the exclusive representative of its employees every time it decides to exercise a management right under section 7106 of the Statute. Thus, where the exercise of a management right has not changed conditions of employment so as to have an impact on bargaining unit employees and such impact cannot reasonably be foreseen, management's failure to have provided prior notice thereof to the exclusive representative will not be found to have violated 7116(a)(1) and (5) of the Statute. . . . Id. at note. 4 In other words, the Authority rejected the "substantial impact" test /1/ which had been first enunciated under Executive Order 11491, as amended. /2/ In so doing, however, the Authority also indicated and now specifically reiterates that no duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis. In the instant case, as previously stated, the Judge found that the Respondent's December 1978 Program Manual System instruction which merely separated the 8080 review from the authorization function by the same person did not constitute a change in working conditions sufficient to require bargaining and recommended dismissal of the complaint. The Authority agrees. We find that the resultant as well as the reasonably foreseeable impact of the change in working conditions on bargaining unit employees was de minimis and therefore the Respondent had no statutory obligation to provide the Union with prior notice of, and an opportunity to bargain with respect to, the change. In this regard, the Authority particularly notes, as found by the Judge, that the new instruction had no effect on the grade qualification, work functions, or other working conditions of the Claims Representatives. Further, as found by the Judge, the General Counsel did not establish by record evidence that the new instruction changed the way reviews were distributed, fraud investigations were conducted, or errors were reported to supervisors. As management's change pursuant to section 7106 of the Statute had only a de minimis impact on the working conditions of bargaining unit employees, management was under no obligation to bargain over the impact and implementation of such change. Accordingly, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 5-CA-482 be, and it hereby is, dismissed. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Daniel H. Green For the Respondent Charles R. Prock, Esq. For the General Counsel John Harris, on brief For the Charging Party Before: ALAN W. HEIFETZ Administrative Law Judge DECISION Statement of the Case This proceeding arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result of an unfair labor practice charged filed April 10, 1980, with the Federal Labor Relations Authority. Consequently, on February 20, 1981, the Regional Director of the Authority issued a complaint alleging that the Department of Health and Human Services, Social Security Administration, Chicago Region, violated 5 U.S.C. 7116(a)(1) and (5) by unilaterally changing terms and conditions of employment. A hearing was held on June 9, 1981 in Chicago, Illinois. All parties were afforded full opportunity to examine witnesses and to introduce evidence. Post hearing briefs were timely filed and have been considered. /3/ Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions and recommendations: Findings of Fact Within the Social Security Administration, when an initial determination has been made that an individual is eligible or ineligible for Supplemental Security Income Benefits, a computer generated printout of the information upon which the determination was made is transmitted back to the District or Branch Office which initiated the claim. This printout, the SSA-8080, is used to verify that the information in the claims folder, which has been compiled by a Claims Representative, who adjudicates the claim and transposes the information on a computer input form, agrees with the information which has reached the agency's computer system. Prior to December 1978, the "8080" could be reviewed by the Claims Representative who had initiated and adjudicated the claim. However, in December 1978, a Program Manual System (POMS) instruction was issued from the Central Social Security Administration Office requiring a change in the 8080 review procedure effective January 1, 1979. That change mandated that the review of an 8080 document could only be done by a claims representative or authorized employee other than the person who authorized the initial claims input. The procedure was changed in order to deter fraud. The new 8080 review procedure was not immediately implemented in Respondent's Chicago Region in order to request clarification on the POMS instruction. The region was concerned about potential grade impact on the GS-10 claims representatives and it questioned whether there wasn't sufficient security without the change. Those concerns were apparently alleviated because the change was finally implemented in the Chicago Region on February 19, 1980, a year later than implementation throughout the rest of the Country. The Regional Commissioner's memorandum implementing the change noted that the separation was made for security reasons. It also stated: We are aware that the procedure may cause workflow problems for some offices. However, it is felt that the security gained by the separation outweighs the temporary problems some offices may experience implementing the procedure. By letter dated March 5, 1980, the Union requested to bargain with Respondent over the change. By letter dated April 1, 1980, Respondent declined this request asserting that the matter was outside the scope of bargaining because it concerned internal security and that no change in working conditions of employees had occurred that was sufficient to require consultation and negotiation. Discussion and Conclusions It is clear from the outset (and Counsel for the General Counsel does not make any serious argument to the contrary) that the substance of the change in the 8080 review procedure for reasons of the agency's internal security practices is a non-negotiable management right under Section 7106(a) of the Statute. The only question remaining is whether there is an obligation to bargain over the impact and implementation of that change. That obligation, in turn, depends upon a showing that the change has resulted in or may reasonably be expected to result in a substantial impact on employees. /4/ The burden is the same whether the issue arises under Section 7106(b)(2) or 7106(b)(3) of the Statute. /5/ Whether one focuses on the procedures for exercising a management prerogative or on appropriate arrangements for adversely affected employees, the broad reach of this remedial statute does not extend to changes which are trivial or to changes whose impact on employees are trivial. If collective bargaining is to be meaningful, the issues to be bargained over must be real and not illusory; of some import and more than de minimis; and hence, of some substance and, in that context, substantial. /6/ Based on the facts of this case, I find that Respondent's December 1978 Program Manual System instruction which separated the 8080 review from the authorization function did not constitute a substantial change in working conditions sufficient to require bargaining over the procedures which the Respondent would observe in exercising its authority to issue that instruction. Prior to December 1978, it was possible to separate the review function from the authorization function. The only change in the POMS instruction was that such a separation would become mandatory. The record fails to demonstrate that making that separation mandatory had any substantial impact on the working conditions at Respondent's facilities. Counsel for the General Counsel argues (1) that review of the 8080 was changed from one that was cursory to one that was adjudicative; (2) that an adjudicative review takes significantly more work time; (3) that the separation of review function has potential impact on grade qualification; (4) that there are inconsistencies in the implementation of the new 8080 instruction; (5) that an impact has been made on rights of employees in fraud investigations; and (6) that employee relations are adversely affected because one employee may have to report errors of another to a supervisor. Respondent has convincingly countered those allegations with record evidence which is unrebutted. That record does not warrant a finding that the nature of the 8080 review was changed from cursory to adjudicative. /7/ Certainly the instruction itself makes no mention of any change in the nature of the review to be performed. In fact, one portion of the instruction which was not changed indicates that adjudicative review has always been required. Section 11010 of the instructions provides: "In reviewing the 8080 message, insure that the claimant has been paid properly and the SSR is errorfree." And since an adjudicative review has always been required, it is of no consequence that a cursory review might take less time. Grade qualification for the pertinent claims representative is dependent upon the initial authorization function and not any review function. Although the regional office initially had some question as to whether there would be any affect on grade qualification, that question was answered in the negative by the Central Office and there is no evidence on this record that there would be any impact, actual or potential, on grade determination. /8/ The work functions of a claims representative have not changed as a result of the new instruction. Prior to that instruction, claims representatives adjudicated claims and they reviewed 8080 documents. After the instruction was issued, they continued to adjudicate claims and to review 8080 documents, except that the 8080's were not their own. Counsel for the General Counsel's last three arguments all must be rejected for similar reasons. The record does not demonstrate that mandatory cross-review of 8080's changed the way reviews were distributed, fraud investigations were conducted or errors were reported to supervisors, when those cross-review were done permissively. The record is also silent as to how much cross-review was done prior to the change in instruction. In short, the evidence shows only that the instruction was changed but not how the work has changed either qualitatively or quantitatively. Under the circumstances, I conclude that the evidence is insufficient to demonstrate a violation of 5 U.S.C. 7116(a)(1) and (5) as alleged, and, therefore, I recommend that the Federal Labor Relations Authority issue the following order pursuant to 5 C.F.R. 2423.29(c): ORDER ORDERED, that the complaint in Case No. 5-CA-482 is dismissed. ALAN W. HEIFETZ Administrative Law Judge Dated: August 28, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ See also Internal Revenue Service (District, Region, National Office Unit), 13 FLRA No. 61 (1983) at note 1. /2/ See Department of Defense, Air National Guard, Texas Air National Guard, Camp Mabry, Austin, Texas, 6 A/SLMR 591 (1976). /3/ The Charging Party's Motion to Enter an Appearance for the Purpose of Filing a Brief was unopposed and is hereby granted. Its tendered brief has been accepted and considered. /4/ See Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA No. 45 (March 20, 1981); and See, also U.S. Government Printing Office, Opinion of Judge Dowd, Case No. 3-CA-569, OALJ-81-083 (April 9, 1981). /5/ Section 7106(b) provides: Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. See, U.S. Government Printing Office, Id at pp. 19 and 20, where Judge Dowd finds substantial impact a prerequisite under both subsections. /6/ On brief, the Charging Party expresses concern that by use of the term "substantial," the burden of proof would extend to showing an impact which is "considerable" and far beyond what is trivial. While I can appreciate this concern, I do not believe that the term "substantial" can be used in any context which relates to its use as a synonym for the word "massive." Lest one engage in sophistic argument, suffice it to say that, for purposes of this decision, the term "substantial" means something more than trivial. /7/ The testimony of the witness for the General Counsel on this point is not convincing, nor is his estimate that cross-review takes significantly longer. He stated that it used to take only 2 or 3 minutes to perform a review but that now, cross-review takes 5 times longer. Not only does the record fail to explain why there should be such a great disparity, but also this contention flies in the face of evidence of a 1976 operations study which indicated that any review should take only between 5 and 7 minutes. Even conceding that unfamiliarity with a file might add a minute to the review time, this would add only ten minutes per week based on his production of 10 reviews per week. Since the record does not demonstrate how many claims representatives were not cross-reviewing at all prior to the new instruction, it is impossible to determine the effect, if any, on employees in general. The most I can find on this record is that one employee's time might be affected by ten minutes per week. /8/ I cannot give any weight to the testimony of Edward Hurt that one claims representative in an office in Michigan was authorizing all claims and that reviews were then done by other claims representatives. First, that testimony was based solely on uncorroborated double hearsay, and second, it just doesn't seem to make any sense. How does one person generate sufficient work to keep the rest of the office busy reviewing that work product?