16:0674(99)CA - HHS, SSA, Baltimore, MD and AFGE -- 1984 FLRAdec CA



[ v16 p674 ]
16:0674(99)CA
The decision of the Authority follows:


 16 FLRA No. 99
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION
 BALTIMORE, MARYLAND
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-1066
 
                            DECISION AND ORDER
 
    The Chief Administrative Law Judge issued the attached Decision in
 the above-entitled proceeding finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  The Respondent filed exceptions to the Judge's
 Decision and the General Counsel filed an opposition thereto.
 
    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 /1/ and recommended Order.
 
    While we agree with the Chief Judge that a status quo ante remedy is
 warranted, we do not rely upon his application of the criteria in
 Federal Correctional Institution, 8 FLRA 604 (1982), to reach such
 result.  Consideration of the Federal Correctional Institution criteria
 is applicable in cases where a Respondent was found to have failed to
 negotiate impact and implementation of a decision which was itself not
 negotiable.  In this case, by contrast, we conclude that the decision to
 change the start time of employees in the San Jose District Office was
 negotiable inasmuch as the record fails to establish that the change
 effectuated by the Respondent was determinative of the numbers, types or
 grades of employees or Positions assigned to a work project or tour of
 duty within the meaning of section 7106(b)(1) of the Statute.  See,
 Department of Transportation, Federal Aviation Administration,
 Washington, D.C., and its Chicago Airways Facility Sector, 16 FLRA No.
 71 (1984), and cases cited in note 3.  In view of the Respondent's
 failure to fulfill its bargaining obligation concerning the decision to
 change the start times of unit employees, the Authority finds that an
 order directing the restoration of the previous existing start time will
 effectuate the purposes and policies of the Statute.
 
                                   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 Department of Health and Human
 Services, Social Security Administration, Baltimore, Maryland shall:
 
    1.  Cease and desist from:
 
    (a) Implementing changes in working conditions of employees, such as
 the 7:00 a.m. start time under the San Jose District Office Flexitime
 Plan, without having first completed bargaining with the exclusive
 representative of its employees, the American Federation of Government
 Employees, AFL-CIO, over such proposed changes.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Rescind the changes in the start time of employees within the San
 Jose District Office implemented on May 26, 1982, and restore the start
 time in effect prior thereto.
 
    (b) Notify the American Federation of Government Employees, AFL-CIO,
 of any intended change with respect to the start time under the San Jose
 District Office Flexitime Plan and, upon request, bargain with the
 exclusive representative over such proposed changes.
 
    (c) Post at its San Jose District Office, San Jose, California,
 copies of the attached Notice to be furnished by the Federal Labor
 Relations Authority.  Copies of said Notice shall be signed by the
 Assistant Regional Commissioner for Field Operations, or his designee,
 and shall be posted and maintained for 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 other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 60 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., November 30, 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 make changes in working conditions of employees, such as
 the 7:00 a.m. start time under the San Jose District Office Flexitime
 Plan, without having first completed bargaining with the exclusive
 representative of our employees, the American Federation of Government
 Employees, AFL-CIO, over such proposed 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
 Statute.
 
    WE WILL rescind the changes in the start time of employees within the
 San Jose District Office implemented on May 26, 1981, and restore the
 start time in effect prior thereto.
 
    WE WILL notify the American Federation of Government Employees,
 AFL-CIO, of any intended change with respect to the start time under the
 San Jose District Office Flexitime Plan and, upon request, bargain with
 the exclusive representative over such proposed changes.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    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, Federal Labor Relations Authority, Region IX, whose address
 is:  530 Bush Street, Room 542, San Francisco, California 94108, and
 whose telephone number is (415) 556-8106.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF HEALTH AND HUMAN SERVICES,
    SOCIAL SECURITY ADMINISTRATION,
    BALTIMORE, MARYLAND
                                Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO
                              Charging Party
 
                                       Case No. 9-CA-1066
 
    Wilson Schuerholz
    For the Respondent
 
    Vince Morgante
    For the Charging Party
 
    Josanna Berkow, Esq.
    For the General Counsel
 
    Before:  JOHN H. FENTON
    Chief Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, (5 U.S.C. 7101 et seq.) and the Final Rules and
 Regulations issued thereunder (5 C.F.R. 2423.14 et seq.) It is based on
 a Complaint issued by the Regional Director of Region IX, Federal Labor
 Relations Authority, alleging that Respondent, on May 26, 1981,
 unilaterally changed the flexitime program at its District Office in San
 Jose, California, in violation of Section 7116(a)(1) and (5) of the
 Statute.
 
    A formal hearing was held in San Francisco on October 21, 1981.  All
 parties were afforded full opportunity to examine witnesses, introduce
 evidence and to file briefs.  Upon the entire record, and my observation
 of the witnesses and their demeanor, I make the following findings of
 fact, conclusions and recommended order.
 
                             Findings of Fact
 
    1.  The American Federation of Government Employees, AFL-CIO is the
 certified collective bargaining representative of a national
 consolidated unit which includes employees in the San Jose District
 Office of the San Francisco Regional Office of Respondent.
 
    2.  Prior to the certification of AFGE as representative of a
 consolidated nationwide unit on August 30, 1979, a collective bargaining
 agreement had been entered into between the San Francisco Region of
 Respondent's Office of Program Operations, Field Operations, and the
 Council of District Office Locals of AFGE in the San Francisco Region.
 
    3.  While the contract did not cover flexitime, a flexitime program
 had been in place in the San Jose District Office for years, and had
 become an established term and condition of employment not subject to
 change without negotiations as to substance as well as impact and
 implementation.  The plan provided for a workday from 6:00 a.m. to 5:30
 p.m., with a core time (during which all were to work) from 9:00 a.m. to
 2:30 p.m.
 
    4.  On October 18, 1979, following certification of AFGE as exclusive
 representative of the new national consolidated unit, President Kenneth
 T. Blaylock wrote Stanford Ross, Commissioner of the Social Security
 Administration.  His purpose was to "outline the delegations of
 authority by AFGE to administer the national consolidated exclusive
 recognition between AFGE and the Social Security Administration." He
 announced the establishment of a General Committee of SSA Councils
 representing various field office personnel, and AFGE Local 1923,
 representing headquarters personnel.  The relevant Council for matters
 affecting the San Jose office was the AFGE National Council of SSA Field
 Operations.  Authority to deal directly with the Commissioner on
 "matters national in scope" was delegated to the chief spokesperson of
 the Committee.  Authority to deal with the heads of the six SSA
 components for which a Council (or local 1923) existed was delegated to
 the Council Presidents and the Local President on matters affecting
 their components.  Provision was made for further delegation of
 authority "for those matters which are local or regional." Finally,
 Blaylock requested that copies of all "changes to regulations and
 personnel policies" be sent to the Committee Representatives," and other
 representatives who received them under National Consultation Rights,
 that "Local or Council Presidents . . . receive copies of the standard
 operating procedures and other personnel policies in their respective
 offices, Payment Centers, etc., and in accordance with Local or Council
 agreements or the memorandum of understanding . . . (and that) local or
 regional problems which cannot be resolved locally may be channelled
 through the component Presidents, or the Committee, as appropriate, for
 processing to SSA."
 
    5.  On October 21, the Executive Vice President, John Harris of the
 National Council of SSA Field Operations wrote a follow-up letter to the
 Commissioner of SSA, for the purpose of clarifying the delegation as it
 concerned field offices and providing appropriate redelegations.  Five
 Executive Officers of the National Council were responsible for dealing
 with matters affecting field employees nationally.  Each of ten Regional
 Vice Presidents would serve as the chief representative of the Council
 for the Region he or she represented.  There would be "virtually no
 change" for the San Francisco Region, where the President of the
 District Office Council has "been delegated full authority to act on
 behalf of this Council in LMR (labor-management relations) matters."
 Within each Region, at the level of each installation, the Council
 "delegated the LMR responsibility to the Local of AFGE which has
 historically held recognition." Where there was an existing agreement
 "setting down conditions of employment . . . those matters so set down
 shall continue in full force and effect until superceded by a National
 Master Agreement.  A Memorandum of Understanding with Mr. Blaylock to
 define LMR for those installations" not covered by agreement would serve
 in lieu of an agreement until superceded.  Each Local President was
 designated a Council Representative, and installation management was
 reminded of its obligation to notify, meet and confer with the Local
 President whenever a bargainable change was proposed.  Finally the
 letter noted that, while many Local contracts would require consultation
 with the Union prior to implementation of any changes, the "obligation
 to bargain with AFGE as the exclusive representative is superior,"
 adding that in "no way does the consultation process compromise the duty
 to bargain with the designated Council Representative, whomever that is,
 wherever that is." /2/
 
    6.  Respondent and AFGE began negotiations of a nationwide agreement
 in April of 1980.  Article 10, Section 2 of the Union's initial proposal
 provided that "(u)pon request from the Union at the appropriate level,
 the Union and the employee will negotiate procedures for implementing
 flexitime . . . ." Respondent's initial proposal was that it would upon
 request from the Union, "enter into negotiations of procedures for
 implementing flexitime . . . after a determination by the Administration
 that flexitime . . . (is) to be implemented in a component."
 
    7.  On August 12, 1980, District Manager Betsy Brown proposed, in a
 memo to Darlene Kinney, Union Representative for the San Jose office,
 that the flexitime plan be modified by starting the workday at 7:00 a.m.
 instead of 6:00 a.m.  She pointed out that substantial changes had
 occurred since instituting flexitime, including a substantial reduction
 in staff and in supervision, which had caused serious operational and
 public relations problems.  Those who flexed in at 6:00 a.m. (about 25%)
 were at work for 3 hours before the office opened to the public, were
 difficult to supervise, and did not carry their "fair share" of the
 interviewing load.  The result was that she could not adequately cover
 interviews after their tour of duty ended at 2:30 p.m., and that the
 staff that flexed late was burdened with a disproportionate part of the
 interviewing load.  She requested that the Union consider her reasons
 for the proposed change and provide her with written comments within 10
 days.
 
    8.  In Kinney's absence her alternate requested postponement of the
 reply date from August 22 to August 27.  Brown agreed, noting that an
 issue of such concern deserved full consideration and stressing her
 desire that the Union come forward with constructive suggestions and
 proposed resolutions.
 
    9.  On August 27, Kinney answered Brown, declining to enter
 negotiations and asserting that the proposed change could not be
 implemented because the subject matter was on the bargaining table in
 the negotiations between the National Office of AFGE and the
 Commissioner of Social Security.  She warned Brown that implementation
 without agreement at the local or the national level would result in the
 filing of an unfair labor practice charge.
 
    10.  On September 5, Brown asked Kinney to reconsider and submit her
 comments on the proposed change, stating that she would, if necessary,
 forward her plan for the approval of her superiors without input from
 the Union.  /3/ On September 12, Kinney responded that her position was
 unchanged, although she was willing to discuss the later (after 2:30)
 interview schedule.  /4/
 
    11.  On September 15, Brown proposed to her superiors in San
 Francisco that the flexitime schedule be changed to a 7:00 a.m. starting
 time.  On May 14, she received clearance and informed the Union of her
 intentions.  An announcement was made on the following day, and the
 change was made on May 26.
 
                        Discussion and Conclusions
 
    Upon certification of AFGE on August 30, 1979, Respondent's
 obligation to bargain respecting working conditions in the entire
 nationwide consolidated unit ran to AFGE.  The several hundred
 preexisting units disappeared, and the many bargaining relationships at
 lower echelons of both AFGE and SSA were extinguished.  Department of
 Health and Human Services, Social Security Administration, 6 FLRA 202.
 As the Authority there stated:
 
          . . . the mutual obligation to bargain as articulated in the
       Statute exists only at that (the National) level of exclusive
       recognition with respect to conditions of employment which affect
       any employees within the unit:  a contrary result would render
       consolidation meaningless.
 
    It follows that SSA violated the law when it adjusted the flexitime
 hours in the San Jose District without affording AFGE an opportunity to
 bargain, unless those parties had agreed to bargain about such matters
 at the lower level.  Put another way, local unions and other
 constituents of AFGE had no jurisdiction to negotiate agreements on
 behalf of Respondent's employees, upon certification of the National
 Union as exclusive representative, unless and until the latter
 specifically granted them authority to do so.  SSA defends here on the
 ground that the Blaylock and Harris letters, particularly the latter's
 statement that installation managers who proposed changes were obligated
 to notify, meet and confer with the President of the relevant Local
 Union, constituted a delegation of bargaining authority which it
 accepted and which made Brown's approach to Kinney appropriate.  Hence
 SSA argues that it tried to bargain, and it was the local union which
 refused to bargain in good faith.
 
    Neither letter relied upon by SSA speaks to the relationship between
 the label relations structure they attempt to create and the national
 level bargaining which was still some months down the road.  Thus, each
 letter set forth delegations which were necessary for contract
 administration and for the day-to-day dealings in the resolution of
 specific problems in the various components and levels of Respondent's
 organization, as well as AFGE's.  AFGE's delegations are arguably
 confusing in terms of delineating how collective bargaining and contract
 administration would go on pending negotiation of a national agreement.
 The actual practice was likewise confusing.  The local union official
 volunteered to discuss the later interview schedules, a matter which,
 while not an express part of the flexitime program, is inextricably
 interwoven with it, and which is surely no less local in its impact that
 is changing the start-up time in the San Jose District office.
 
    Nevertheless, the local union official declined to enter into
 discussions (whether consultation or negotiation) on the ground that the
 subject matter was on the national bargaining agenda.  It was then
 incumbent upon Respondent to seek clearance from appropriate officials
 of the National Union to deal with local union officials about the
 matter, and, absent such agreement, to negotiate the proposed change at
 the national level.  It failed to do so, but simply implemented without
 further ado.  It therefore violated Section 7116(a)(1) and (5) by
 instituting the change in the starting time for the flexitime program
 from 6:00 a.m. to 7:00 a.m. without affording AFGE, the newly-certified
 exclusive representative of the affected employees, an opportunity to
 bargain about the matter.
 
    There remains the question whether it is appropriate that the
 remedial order include a provision for restoration of the status quo
 ante.  In my judgment the criteria set forth in Federal Correctional
 Institution /5/ are met.  Thus, Respondent's failure to take its problem
 to officials of the National Union before making its change was
 high-handed.  It was taken in the face of a clear threat that an unfair
 labor practice charge would be filed and after clearance at Respondent's
 headquarters.  Employees lost their right to flex in early as well as
 parking-cost advantages.  The efficiency of agency operations may well
 be impaired, in that the old late interview problem will thereby be
 resurrected, as well as the problems of supervising the early hours and
 distributing interviewing time equitably.  Nevertheless, it is not clear
 that serious disruption of the District Office's mission would ensue,
 and there exist a number of ways to address those problems short of
 unilaterally altering the workday.  Absent serious impairment of
 efficiency, the use of a mere prospective bargaining order leaves the
 violator in possession of the fruits of its unfair labor practice during
 the negotiations ordered, with little incentive to bargain with dispatch
 and in good faith.  Accordingly, I recommend that the status quo ante be
 restored.
 
    Having concluded that Respondent SSA violated Section 7116(a)(1) and
 (5), I recommend that the Federal Labor Relations Authority issue the
 following:
 
                                   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,
 Baltimore, Maryland shall:
 
    1.  Cease and desist from:
 
          (a) Implementing changes in working conditions of employees,
       such as the 7:00 a.m. start time under the San Jose District
       Office Flexitime Plan, without having first completed bargaining
       with the exclusive representative, the American Federation of
       Government Employees, over such changes.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of their rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Rescind the changes in the start time of employees within
       the San Jose District Office implemented on May 26, 1981, and
       restore the start time in effect prior thereto.
 
          (b) Post at the San Jose District Office, 1111 North Market
       Street, San Jose, California, copies of the attached Notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by the Assistant
       Regional Commissioner for Field Operations, and shall be posted
       and maintained by her for 60 consecutive days thereafter in
       conspicuous places, including all bulletin boards and other places
       where notices to employees are customarily posted.  The
       Commissioner shall take reasonable steps to insure that such
       notices are not altered, defaced, or covered by any other
       material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region IX, Federal
       Labor Relations Authority, 530 Bush Street, 5th Floor, Room 542,
       San Francisco, California 94108, in writing, within 60 days from
       the date of this order as to what steps have been taken to comply
       herewith.
                                       JOHN H. FENTON
                                       Chief Administrative Law Judge
 
    Dated:  October 27, 1982
            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 POLICIES OF CHAPTER 71 OF
 THE TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT make changes in working conditions of employees, such as
 the 7:00 a.m. start time under the San Jose District Office Flexitime
 Plan, without having first completed bargaining with the exclusive
 representative, the American Federation of Government Employees, over
 such changes.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of rights assured by the
 Statute.
 
    WE WILL restore the 6:00 a.m. start time under the San Jose District
 Office Flexitime Plan.
                                       (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 any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region IX, whose
 address is:  530 Bush Street, Suite 542, San Francisco, California
 94108, and whose telephone number is (415) 556-8105.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See also Department of Health and Human Services, Social Security
 Administration, 10 FLRA 77 (1982);  Social Security Administration, 11
 FLRA No. 76 (1983).
 
 
    /2/ Council for the General Counsel renews, in her brief, her
 objection to the admission of those two letters as not properly
 authenticated.  Not being disposed to require the presence