16:0056(17)CA - SSA and AFGE -- 1984 FLRAdec CA
[ v16 p56 ]
16:0056(17)CA
The decision of the Authority follows:
16 FLRA No. 17
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 31-CA-534
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision finding
that Respondent had engaged in the unfair labor practices alleged in the
complaint and recommending that it cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in other alleged unfair labor practices and recommended
dismissal of the complaint with respect to them. The Respondent filed
exceptions with respect to the Judge's Decision /1/ and the Charging
Party filed an opposition to Respondent's exceptions.
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, except as modified
herein.
In agreement with the Judge's conclusion, the Authority finds that
the Respondent violated section 7116(a)(1) and (5) of the Statute by its
failure to give the Union adequate prior notice and the opportunity to
request bargaining concerning the impact and implementation of the
Respondent's decision to implement Phase II of the Disability Insurance
Pilot Study on September 26, 1980, as well as its decision to resume the
Retirement Survivor Insurance sample work on October 8, 1980. In so
finding, the Authority notes that where an agency in exercising a
management right under 7106 of the Statute decides to change a condition
of employment of unit employees, there exists a statutory duty to
negotiate if such change results in more than a de minimis impact upon
unit employees or such impact is reasonably foreseeable. See U.S.
Government Printing Office, 13 FLRA No. 39 (1983); and Department of
Health and Human Services, Social Security Administration, Chicago
Region, 15 FLRA No. 174 (1984). /2/
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 Social Security Administration shall:
1. Cease and desist from:
(a) Instituting changes in the use by employees of its on-going
samples, pilot programs and special studies in the Office of Assessment,
including the field regional offices, without first notifying the
American Federation of Government Employees, AFL-CIO, the exclusive
bargaining representative of its employees, and affording the Union the
opportunity to request negotiations concerning the impact and
implementation of such changes.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request by the American Federation of Government Employees,
AFL-CIO negotiate concerning the procedures to be utilized in
implementing any changes in the use by employees of its on-going
samples, pilot programs and special studies, and their impact upon
affected employees.
(b) Post at all its Office of Assessment locations, including the
satellite and field 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 the Associate Commissioner, Office
of Assessment, or his designee, and shall be posted and maintained for a
period of 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
material.
(c) Notify the Regional Director, Region III, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply with the Order.
IT IS FURTHER ORDERED that the allegation of the complaint that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
conducting training sessions for unit employees be, and it hereby is,
dismissed.
Issued, Washington, D.C., September 26, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
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, institute changes in the use by employees of our
on-going samples, pilot programs and special studies in the Office of
Assessment, including the field regional offices, without first
notifying the American Federation of Government Employees, AFL-CIO, the
exclusive bargaining representative of our employees, and affording the
Union the opportunity to request negotiations concerning the impact and
implementation of such changes.
WE WILL NOT, in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, notify the American Federation of Employees, AFL-CIO of any
changes in the use by employees of our on-going samples, pilot programs
and special studies and, upon request, negotiate with such
representative concerning the impact and implementation of such changes.
(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 its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is:
P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number
is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No.: 31-CA-534
Francis X. Dippel, Esq.
Jack P. Goodman
For the Respondent
Gloria J. Crawford, Esq.
Margaret Berkowitz, Esq.
For the General Counsel
Barry Nelson
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement Of The Case
Pursuant to a Complaint and Notice of Hearing issued on February 20,
1981 by the Regional Director for the Federal Labor Relations Authority,
Washington, D.C. Region, a hearing was held before the undersigned on
March 19, 1981 at Baltimore, Maryland.
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. Section 7101 et seq. (herein the Act). On
October 31, 1980 a charge was filed by American Federation of Government
Employees, AFL-CIO (herein called the Union or Charging Party) against
Social Security Administration (herein called Respondent).
Based upon the aforesaid charge it was alleged in the complaint that
certain conduct by Respondent, in addition to constituting a patent
breach of a negotiated agreement between the parties, was unilateral in
nature; that, as a result thereof, the Union was denied an opportunity
to negotiate on its impact and implementation-- all in violation of
Sections 7116(a)(1) and (5) of the Act. Specifically, the complaint
alleged that (a) on about August 25, 1980 and September 16, 1980,
respectively, Respondent conducted, without prior notice to the Union,
training for unit employees regarding changes in certain forms to be
used in the resumption of the Retirement Survivor Insurance sample of
Title II, and in the implementation of Phase II of the Disability
Insurance sample; (b) by memorandum dated September 26, 1980 Respondent
directed the implementation of Phase II of the Disability Insurance
Pilot study of Title II, work, without prior notice to the Union, and by
implementing such study it changed certain forms used by unit employees
in their work; (c) by memorandum dated October 8, 1980 Respondent
directed the resumption of Title II sample work concerning Retirement
Survivor Insurance without prior notice to the Union, and by resuming
such study it changed certain forms used by unit employees in their
work.
Respondent filed an answer, dated March 1, 1981, in which it admitted
that it unilaterally conducted the aforesaid training sessions, directed
implementation of Phase II of the Disability Insurance Pilot Study of
Title II work, and directed resumption of Title II sample work
concerning Retirement Survivors Insurance. It denied changing the forms
as a result of any such implementation or resumption. Moreover, it
denied the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Briefs filed by the parties have been duly
considered.
At the hearing herein the undersigned stated that since the complaint
alleged, in paragraphs 15 and 17, that certain forms were changed by
implementing Phase II of the Disability Insurance Pilot Study and the
resumption of Retirement Survivors Insurance work, no findings would be
made regarding other changes during such implementation or resumption.
Upon further consideration I am persuaded that the complaint is
sufficiently broad to encompass such other changes. The alleged
implementation and resumption of work carry with them new procedures,
and the Respondent-- as appears from the exhibits-- acknowledges that
changes accompanied the system. /3/ Further, the modifications were
litigated at the hearing and no prejudice is shown to have existed
thereby. See Iron Workers, Local 444 Gust K. Newberg Construction Co.
174 NLRB No. 164; VA Hospital, Charleston, S.C. A/SLMR No. 87.
Subsequent to the hearing General Counsel filed a motion with the
undersigned to reopen the record and receive "Appendix A to G.C. Exh.
No. 1(e) into evidence." Appendix A is referred to as Attachment 1 in
paragraph 5 of the Complaint. It consists of a list of the bargaining
units, nationwide and in Washington, D.C. as well as the various states,
of the non-professional employees of Respondent represented by the
Union. No objection has been filed thereto. The motion is granted and
the Appendix is received in evidence.
Upon the entire record herein, from my observation of the witness and
their demeanor, and from all of the testimony and evidence adduced at
the hearing, I make the following findings, conclusions and
recommendations:
Findings of Fact
1. At all times since August 30, 1979 the American Federation of
Government Employees, AFL-CIO has been the certified bargaining
representative of the Respondent's employees in a national consolidated
unit.
2. A memorandum of agreement signed by Respondent on November 1,
1979, and by the Union on November 2, 1979, provided, in substance, that
prior to implementing any changes in personnel policies, practices, or
conditions of employment, the employer will notify the Union in advance
thereof and fulfill its obligation to bargain.
3. About 1500 individuals are employed by Respondent in ten field
assessment (regional) offices and 25 satellite offices in the United
States-- all under the Office of Assessment. Employed thereat are
qualify review specialists (QRS), disability reviewers (DR), field
integrity specialists, program analysts and clericals.
4. The mission of the Office of Assessment is to conduct a program
of quality appraisal and analysis through on going samples, /4/ pilot
programs and special studies. By conducting samples of claims which
were paid, the employer monitors the accuracy of its payments while the
studies aid in correcting discrepancies. Title II of this program
includes Retirement Survivors Insurance (RSI) and Disability Insurance
(DI). Sample work for both RSI and DI is handled by those designated as
QRS, DR, and the analysts heretofore mentioned. The Office of
Assessment (OA) conducts samples every six months of about 3000 cases
for DI and about 2000-3000 for RSI.
5. In September, 1979 OA ended Title II sample work concerning Phase
I of a DI pilot study. Further, in February, 1980 it suspended Title II
sample work related to RSI cases.
6. Earl P. Tucker, President of the National Council of Field
Assessment Locals, sent a memorandum dated May 16, 1980 to Fred
Schutzman, Associate Commissioner, OA. The Union representative stated
they were unofficially advised that Title II sample for OA was
suspended; that the Union desired to negotiate the impact of the
changes flowing from the suspension on the employees in OA.
7. In a reply memorandum dated June 13, 1980, Schutzman informed
Tucker that the sample had been suspended for an indefinite period
pending approval by the Office of Management and Budget for an extension
of several forms used in Title II quality review work. Authorization
for use of said forms had expired in January, 1980. The OA official
stated that when word is received regarding resumption of the sample,
the employer would notify the Union. Schutzman further commented that
no widespread assignment had taken place of employees to duties outside
position descriptions; that no adverse impact had resulted from the
suspension to warrant negotiations thereon.
8. A further memorandum regarding suspension of Title II sample,
dated September 3, 1980, was sent by Schutzman to the Union President.
He reiterated the contention that no adverse impact had occurred; that
it was anticipated the resumption of Title II sample would take place
soon; that the Union would be notified when official word is received
regarding the resumption; and that OA had authorized Title II training
to commence on August 25, 1980.
9. Management did begin a refresher training session on August 25,
1980 in Baltimore, Maryland. About twenty employees, including
bargaining unit workers, attended the course which concerned changes in
forms to be used in the resumption of RSI work. Discussion took place
regarding two new forms: (1) SSA 4659 which was an annual earnings test
questionnaire used by the QRS in the field when soliciting information
from beneficiaries. Record testimony reflects that the use of this form
added one-half to one hour's time required by the specialist to conduct
an interview. It also increased the average time about one to two weeks
to process a case through completion. The QRS was required to obtain
data regarding the beneficiary's past employment by sending out a sheet
to his former employers during the previous four years; (2) SSA 4280
which was an annual earnings test desk review worksheet to be used by
case analysts. /5/
The aforesaid training also covered updates and revisions to the
Quality Review Manual used in processing cases. This manual contains
instructions to field personnel regarding completion of forms. These
may be modified at times, and some instructions may be clarified when
necessary.
10. On September 16, 1980 Respondent commenced training unit
employees regarding the implementation of Phase II of a DI Pilot Study
without notification to the Union. At least six training sessions have
been held in Baltimore during the past four years. The program lasted
one week, and it was attended by DR's, project managers. It was
designed to train the trainers, and to update knowledge for
modifications made in the DI process. The sessions dealt with, inter
alia, changes in forms filled out by reviewers. Some items had been
rearranged. Some questions on the forms were new ones whereas other
queries were merely modifications. The reviewer also was required to
fill out a new form. However, all pertained to the same task of
interviewing individuals to determine disability entitlement. The DR's
were expected, upon their return to the regional offices, to train other
DR's and QR's.
The aforesaid sessions also dealt with consultative examinations as
well as the need for more vocational documentation. In respect to the
former, this calls for a request to state agencies to obtain an
independent doctor to examine the beneficiary. The DR contacts the
doctor and the beneficiary regarding an appointment. Under Phase I such
examinations were limited since the DR procured the treating sources
first, and only arranged for a consultative exam if necessary. Record
facts show the vocational evidence required by management was specified
in more detail, although the DR gathered such information under Phase I.
11. By a memo dated September 26, 1980, addressed to all Field
Assessment Officers, the Respondent ordered the implementation of Phase
II of the DI Pilot Study. No prior notice was given the Union herein.
A new quality review questionnaire used by the QRS includes an item
referring to Workmen's Compensation, which was not contained in the
prior form, and the QRS had to obtain data in that regard. This
increased the time required to process DI cases from a few hours to
several weeks since the specialist had to contact insurance companies to
verify the payments made as well as determine how that affected payment.
Further, form SSA 5081 used by the QRS to gather data from
beneficiaries was replaced by form SSA 5081-02. While both were
entitled "Request for Current Medical/Vocational Evidence", the
replacing form spelled out specific vocational data to be obtained.
12. In implementing the Pilot Study, as aforesaid, the DR's were
required to follow through-- as discussed during the training sessions--
consultation examinations in each case and to procure medical evidence.
This was not necessary in Phase I of this study. Further, in Phase II
the reviewer was now required to establish date of birth of the
beneficiary by the best available evidence. This might call for
obtaining a foreign document, or baptismal certificate, by contacting
the Division of International Operations which then notified the
particular embassy. This new procedure was set forth in the Quality
Review Manual. /6/ Processing non-foreign documents might add one to
three weeks to process a case; securing foreign data could increase
case processing time four weeks or longer. Another procedural change
involved the manner by which information was furnished the QRS. Under
Phase I the reviewer was given a cover sheet with the assigned cases
showing the beneficiary's disability. While the sheet was still
provided under Phase II, the information was not set forth in many
cases. Some employees were concerned regarding their safety since they
were not familiar now with the condition of the beneficiary.
13. A memo dated September 19, 1980 from Peter M. Wheeler, Director
of Payment and Eligibility Quality, to Schutzman, regarding the
implementation of the DI Quality Review System, sets forth the
objectives of, and key changes wrought by, Phase II of the Pilot Study.
As indicated therein, it is a separate and distinct study, independent
of Phase I in respect to the sample, review criteria and procedures, and
uses to which data will be part. The changes in Phase II, resulting
from Phase I are enumerated as follows:
a) Elimination of independent reviews by physicians and DR's.
b) Purchase of CE (Consultative Examinations) in nearly all
cases.
c) Direct purchase of CE's in more states.
d) Consolidated worksheet for desk reviewer.
e) Simultaneous request for CMER (current medical evidence of
record) and CE. /7/
14. In a memorandum dated October 8, 1980 management advised all
field assessment officers that clearance had been received for
commencement of RSI sample. The resumption of RSI sample work, which
was now begun, required the case of the new forms (SSA 4280 and SSA
4659) devoted to "annual earnings test" for the review worksheet and
quality review questionnaire respectively. The resumption of RSI sample
work, including the use of the new forms, was effected without prior
notice to the Union. The additional time required to conduct an
interview and to process a case completely, as well as the added duties
imposed by the annual earnings test upon the QRS, are set forth in
paragraph 9 above.
15. QRS Madeline M. Barborer testified, and I find, that she was
assigned to handle 12-16 cases each month prior to the resumption of RSI
sample work and the implementation of Phase II of DI work; that
thereafter she was assigned about 26 cases per month. /8/
Conclusions
The principal issues for determination herein are as follows: (1)
Whether Respondent, by implementing Phase II of the DI Pilot Study on
September 26, 1980 as well as resuming its RSI sample work on October 8,
1980 unilaterally effected changes in working conditions of unit
employees; (2) if such changes resulted from the implementation and
resumption, were they of sufficient significance so that Respondent's
failure to negotiate their impact and implementation was violative of
Sections 7116(a)(1) and (5) of the Act. /9/
Respondent maintains that the changes made, expressly as to the
forms, did not constitute changes in personnel policies, practices, or
working conditions. Any modifications, it is urged, fell within the
scope of the employees' required duties. Further, it is asserted that
no adverse impact resulted from the changes; that the alterations in
the forms constituted "technology, methods and means of performing
work", as set forth in Section 7106(b)(1) of the Act, and were
management rights. It is insisted that no obligation existed on the
part of Respondent to bargain regarding the "insignificant" changes
adopted by the employer.
(1) It is now axiomatic that, while management may not be required to
negotiate over the decision to adopt certain methods of operation, it
does have certain obligations in that regard. Thus, before it effects
changes in working conditions of unit employees, the employer must
notify the bargaining representative and negotiate the implementation of
its decision and its impact upon such employees. Internal Revenue
Service, Washington, D.C., 4 FLRA No. 68; 78th Division (Training),
Kilmer USAR Center, Edison, NJ., 1 FLRA No. 97; Federal Railroad
Administration, 4 A/SLMR No. 497, A/SLMR No. 418. The rule, however, is
qualified to the extent that such changes as are wrought must have a
sufficient impact upon the work involved to warrant mandatory bargaining
thereon. See Office of Programs Operations, Field Operations, SSA, San
Francisco Region, 5 FLRA No. 45.
In respect to the requirements imposed upon the reviewers by the new
forms issued by Respondent, it seems clear that they involved additional
or enlarged tasks by the employees. Under Phase II of the DI Pilot
Study the DI was obliged to arrange, or initiate, the consultative
examination of the beneficiary and to obtain medical evidence. While
this was part and parcel of the new form, nevertheless it necessitated
additional tasks by the reviewer. Similarly, the latter was required,
under Phase II, to establish date of birth by procuring a certificate or
foreign document through the Division of International Operations in
certain instances. Other changes resulted from the new questionnaire
which required the QRS to obtain data regarding workmen's compensation
paid to the beneficiary. Moreover, under Phase I the reviewer was given
a cover sheet with each assigned case showing each beneficiary's
disability. Under the new procedure such information was not provided
in every case.
Likewise, the resumption of RSI sample work entailed the use of new
forms which directed the QRS and the case analysts to obtain additional
data. As a result of the newly adopted item regarding annual earnings
test the reviewer was required to gather information of all past
employers during the past four years. No such information had been
sought, or demanded, prior to the resumption of the RSI program.
While Respondent argues that these tasks, as heretofore described,
fell within the established job duties of the employees, record facts
show the reviewers did not perform them previously. It may well be true
that the general responsibility of the OA people was to conduct ongoing
sample, surveys and studies to verify eligibility and payment accuracy.
Nevertheless, the modifications in the forms, as implemented by
management, did require the QRS or case analyst to perform new duties in
respect thereto. See Department of Treasury, IRS, Manhattan District,
A/SLMR No. 841. Apart from the question of impact, these duties called
for the employee to obtain new information, contact other agencies or
offices, and gather data, i.e. the annual earnings test information,
which had never been required previously. That changes from Phase I
resulted by the implementation of Phase II is acknowledged in the memo
of September 19, 1980 from Wheeler to Schutzman. The memo describes
these changes as key changes. /10/ Thus I find and conclude that
Respondent did effect changes in working conditions by reason of
implementing Phase II of the Pilot Study and its resumption of RSI
sample work.
(2) Respondent insists that the changes, if any, were minor in
nature; that they did not impact upon the reviewer's job duties
significantly, and therefore management should not be faulted for its
unilateral implementation thereof.
In examining the new tasks imposed upon the employees, it becomes
apparent that this contention must fall. The reviewers were now
required to obtain information, and contact outside sources for same,
all of which involved considerably more time in processing a case.
Thus, in respect to Phase II of the Pilot Study, record testimony
reflects that securing foreign data added four weeks or longer to the
processing of a case; that the time required to obtain Workmen's
Compensation data amounted to several hours, at least, and could take
several weeks; and that obtaining information regarding the annual
earnings test by the QRS increased the average time to complete a case
by about one-two weeks. The record also reflects that deadlines are set
for the processing of cases by the reviewers; that the delays
occasioned by the additional time required to handle a case, in view of
the new data to be obtained, affected the statistics on the "deadline to
hand in the work." As testified to by QRS Barbour, the employees' were
concerned about their ratings as a result thereof. Further, this
witness testified that, prior to implementation of Phase II of DI and
the resumption of RSI sample, she was assigned 12-16 cases, whereas
after its resumption her case load expanded to 26 cases per period - 4
to 6 weeks.
While management officials herein denied any adverse impact resulting
from the new forms, or the changes imposed as a result thereof, it
failed to establish specifics which support such denial. Contrariwise,
the witnesses for the General Counsel adverted to more particulars in
this respect. Moreover, I am persuaded that the added time taken to
process a case does have a sufficient impact upon the employees and
their working conditions. This becomes apparent when it is seen that
the time taken by individuals to process a case influences their ratings
by management. It has been held in the public sector that the
establishment of "performance standards" for unit employees imposes
certain obligations upon the agency. While the latter has no duty to
bargain regarding the decision pertaining to their establishment, it is
obliged to bargain regarding their implementation and the impact on said
employees. See 78th Division (Training), Kilmer USAR Center, Edison,
N.J. supra. In the case at bar the employees were required to meet
certain deadlines to hand in their casework. These deadlines were not
changed as a result of the added information to be obtained. Moreover,
the increased caseload of the quality review specialist, by reason of
the implementation of Phase II of DI and resumption of RSI sample, must
necessarily impact upon the employees. This was adverted to by General
Counsel's witness. Thus, on the basis of the foregoing, I am satisfied
that the work entailed by reason of the new forms sufficiently impacted
upon the reviewers. They were not, as urged by Respondent, minor in
nature since the ratings of these employees were dependent upon their
timely output. Hence, it cannot be gainsaid that these additional
duties-- which necessarily extended the time required to process a
case-- affected the rating of the individual reviewer. See Social
Security Administration, Bureau of Hearings and Appeals, A/SLMR No.
1176.
On the basis of the foregoing, I find that Respondent instituted
significant changes in the job duties of the unit employees; that they
had a substantial impact upon the reviewers' working condition; and
that their unilateral institution was violative of the Act. In regard
to the latter, I conclude that Respondent should have bargained with the
Union in respect to their implementation and impact upon adversely
affected employees. Its failure to do constitutes a violation of
Section 7116(a)(1) and (5) of the Act. /11/
Having concluded that Respondent violated Section 7116(a)(1) and (5)
of the Act, it is recommended the Federal Labor Relations Authority
issue the following order:
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 Social Security Administration shall:
1. Cease and desist from:
(a) Instituting changes in the use by its employees of its on-going
samples, pilot programs and special studies in the Office of Assessment,
including the field regional offices, without first notifying the
American Federation of Government Employees, AFL-CIO, the exclusive
bargaining representative of its employees, and affording it the
opportunity to bargain, to the extent consonant with law and regulation,
concerning the implementation of such changes and their impact on
adversely affected employees.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request by American Federation of Government Employees,
AFL-CIO, meet or negotiate, to the extent consonant with law and
regulations, concerning the procedures to be utilized in implementing
any changes in the use by its employees of its on-going samples, pilot
programs and special studies, and their impact upon adversely affected
employees.
(b) Post at all its Office of Assessment locations, including the
satellite and field offices, copies of the attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of the forms they shall be signed by the
Associate Commissioner, Office of Assessment, and they shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees customarily are
posted. The Associate Commissioner shall take reasonable steps to
insure that notices are not altered, defaced, or covered by any
material.
(c) Pursuant to Section 2423.20 of the Rules and Regulations notify
the Regional Director of Region 3, 1133 15th Street, N.W. Washington,
D.C. in writing, within 30 days from the date of this order as to what
steps have been taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: August 24, 1981
Washington, D.C.
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
We hereby notify our employees that:
WE WILL NOT institute changes in the use by our employees of our
on-going sample, pilot programs and special studies in the Office of
Assessment, including the field regional offices, without first
notifying the American Federation of Government Employees, AFL-CIO, the
exclusive bargaining representative of its employees, and affording it
the opportunity to bargain, to the extent consonant with law and
regulation, concerning the implementation of such changes and their
impact on adversely affected employees.
WE WILL NOT, in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, meet and negotiate, to the extent consonant
with law and regulations, concerning the American Federation of
Government Employees, AFL-CIO, concerning the procedures to be utilized
in implementing any changes in the use by our employees of its on-going
samples, pilot programs and special studies, and their impact upon
adversely 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 any employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly
with the Regional Director, Region 3, Federal Labor Relations Authority,
whose address is: 1133 15th Street, N.W., Washington, D.C., and whose
telephone number is: 202-653-8452.
--------------- FOOTNOTES$ ---------------
/1/ With regard to the Respondent's contention that the Judge
considered matters not covered by the complaint, the Authority notes
that such matters were fully litigated by all parties at the hearing.
Accordingly, the Respondent's contention that it was denied the
opportunity to present a proper defense in this regard is rejected.
/2/ Thus, the Authority rejects the Judge's use of a "substantial
impact" test as set forth on page 9 and thereafter in his Decision.
/3/ See Joint Exhibit 6.
/4/ "Sample" refers to a random selection of cases in which data is
gathered and analyzed for evaluation.
/5/ Both the SSA 4659 and SSA 4280 had not been used previously, and
they became effective in September, 1980.
/6/ Record facts disclose that manual changes were customarily made;
that it was usual to get new instructions and new forms on how to
conduct interviews.
/7/ A decision based on CMER alone might result differently when
combined with a CE.
/8/ Cases did not "come in" on a regular basis. New cases were
received every 4-6 weeks.
/9/ General Counsel avers that Respondent unilaterally, and without
prior notice to the Union, conducted training sessions of employees
regarding the contemplated implementation of Phase II of the DI Study
and the resumption of RSI sample case work. It alleges such conduct to
be violative of these particular sections of the Statute. Both training
seminars were held prior to the implementation of any changes in
conditions of employment. They were preparatory instructions regarding
the expected programs. At this point, in my opinion, such anticipated
changes were inchoate in nature. Thus, I do not agree that the training
sessions were tantamount to effecting changes which might be violative
of the Act. Moreover, no allegation appears in the complaint that, by
conducting them, Respondent engaged in formal discussions with employees
and failed to permit the Union to attend-- all in violation of Section
7114(a)(1) and (8) of the Act. Accordingly, I find no violation
bottomed upon the training programs held by management herein.
/10/ I deem this case to differ from the factual situation presented
in Northeastern Program Center; et. al. A/SLMR No. 753. In the cited
case the sole change occurred in the job description of the employees
and not in the duties themselves. In the case at bar, as contracted
with the Northeastern Program case, it had not been the practice to
perform the duties now required.
/11/ Note is taken that General Counsel alleged that the failure to
bargain over impact and implementation was likewise a breach of the
collective bargaining agreement. The contractual clause which was
deemed breached, parallels the statutory language in respect to
bargaining obligations by the employer. Thus, I find it sufficient to
conclude that Respondent violated the aforementioned sections of the Act
by failing to bargain over the implementation and impact of the
aforesaid programs.