16:0740(103)CA - HHS, SSA and AFGE -- 1984 FLRAdec CA



[ v16 p740 ]
16:0740(103)CA
The decision of the Authority follows:


 16 FLRA No. 103
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 23-CA-1974
 
                            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
 General Counsel filed exceptions to the Judge's Decision and the
 Respondent 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 and Recommended Order as modified herein.
 
    The complaint alleged that the Department of Health and Human
 Services, Social Security Administration (Respondent) violated section
 7116(a)(1) and (5) of the Statute by (1) unilaterally implementing a
 requirement that Hearing Clerks work on a regular rotational basis for
 an Administrative Law Judge (ALJ) other than the one to whom the Clerk
 is normally assigned, and (2) refusing, when requested, to negotiate
 with the American Federation of Government Employees, AFL-CIO (Union),
 concerning the impact and implementation of the rotational system.
 
    In agreement with the Judge's conclusion, the Authority finds that
 the Respondent was under no obligation to bargain over the impact and
 implementation of the rotational system.  In so finding, the Authority
 notes that where an agency, in exercising a management right under
 section 7106 of the Statute, changes conditions of employment of unit
 employees, there is no statutory duty to negotiate if such change
 results in an impact or reasonably foreseeable impact on unit employees
 which is no more than de minimis.  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).  The
 Judge applied a test of "substantial impact" to find that there was no
 duty to bargain over the impact of the change.  Relying on the factors
 stated by the Judge, the Authority reaches the same conclusion, finding
 that no duty to bargain existed because the impact of the change on
 bargaining unit employees was no more than de minimis.
 
    Accordingly, the Authority shall order that the complaint be
 dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 23-CA-1974 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., December 5, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF HEALTH AND HUMAN
    SERVICES, SOCIAL SECURITY
    ADMINISTRATION
                                Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO
                              Charging Party
 
                                       Case No.: 23-CA-1974
 
    Thomas J. Lee, Esq.
    Stephen A. Sunshine, Esq.
    For the Respondent
 
    Herbert Collender
    For the Charging Party
 
    Steven Sharfstein, Esq.
    For the General Counsel
 
    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 charge filed February 9, 1981, with the
 Federal Labor Relations Authority.  Consequently, on May 29, 1981, the
 Regional Director issued a complaint /1/ alleging that the Department of
 Health and Human Services, Social Security Administration, in violation
 of Sections 7116(a)(1) and (5) of the Statute, unilaterally implemented
 a requirement that Hearing Clerks work on a regular basis for an
 administrative law judge other than the one to whom the Clerk is
 normally assigned, and that it refused to negotiate with the American
 Federation of Government Employees, AFL-CIO, concerning the impact of
 and procedure for implementing that requirement.  Respondent denies
 those allegations.
 
    A hearing was held on August 18, 1981, in New York City.  All parties
 were afforded full opportunity to examine witnesses, to introduce
 evidence, and to file briefs.  Upon the entire record, including my
 observation of the witnesses and their demeanor, I make the following
 findings, conclusions, and recommended order:
 
                             Findings of Fact
 
    The top management official at the Manhattan Office of Respondent's
 Office of Hearings and Appeals is Lawrence P. Ashley, the Administrative
 Law Judge in Charge.  Judge Ashley supervises an office consisting of
 about 10 or 11 administrative law judges, each of whom has a permanent
 staff comprised of a hearing assistant and one, or sometimes two,
 hearing clerks.  A Hearing Clerk is also known as a Mag Card Operator.
 /2/ The usual practice at the Office is for the administrative law
 judge, the hearing assistant and the hearing clerk or clerks to function
 as one unit.  However, on certain occasions, when the need arises, a
 clerk may do work for another administrative law judge on a temporary
 basis.  Examples of this temporary shifting of staff resources include
 (1) reduction in work load because the regular administrative law judge
 for whom the clerk works is on annual or sick leave, (2) assistance
 given to low productivity employees by high productivity employees, and
 (3) extra work sought by conscientious employees for possible incentive
 awards.
 
    Judge Ashley faced a staffing dilemma in January 1981.
 Administrative Law Judge Pfeiffer had transferred from the San Francisco
 Office to the Manhattan Office but, due to a shortage of Mag Card
 Operators and a freeze on hiring, no Mag Card Operator was available for
 permanent assignment to him.  After deliberating, Judge Ashley
 determined that, in order to provide minimal loss of staffing support
 for the so-called permanent judge and to provide maximum staffing
 utilization for Judge Pfeiffer, he would devise and institute a
 rotational system under which Mag Card Operators would work on a
 part-time basis for Judge Pfeiffer.  Judge Ashley issued two memorandums
 in January establishing the rotational system.  /3/ The Union was given
 no separate notification of the implementation of the rotational system,
 although Union Stewart Carlos Ortiz-Vasquez received copies of the two
 memorandums in his capacity as a Mag Card Operator.  /4/ By letter dated
 January 23, 1981, Mr. Ortiz-Vasquez requested, as shop steward, that
 Judge Ashley discuss the two memorandums with him.  Judge Ashley did not
 accede to the request.
 
    Although Hearing Clerks perform a number of administrative and
 clerical functions in addition to typing, they typically spend between
 24 and 32 hours per week on the Mag Card machine.  While production of
 cases tends to be heavier at the end of each month, the judges for whom
 the witnesses worked produced from 30 to 55 cases per month.  Depending
 on the length of a decision, it is possible for a Mag Card Operator to
 type from two to five decisions in a four hour period.  While there is
 some dispute as to whether Hearing Clerks are busy for a full 40 hours
 each week, it is clear that when case production becomes heavy at the
 end of the month, overtime is often required to complete typing on those
 cases before the end of the month deadline is reached.
 
    The rotation system requires that each of nine Mag Card Operators
 work for Judge Pfeiffer once each month for four hours.  The duties they
 perform for Judge Pfeiffer are the same as for their regular
 administrative law judges.  Judge Pfeiffer produces 13 cases per month
 and the production figures for the other administrative law judges have
 not changed since the implementation of the rotation system.  Of course
 when Mag Card Operators are working for Judge Pfeiffer, they are not
 available to perform the non-typing duties which might be required by
 their regular administrative law judges.
 
    Mag Card Operators worked overtime before Judge Pfeiffer transferred
 to the Manhattan Office and they continued to work overtime after his
 transfer.  Some believe that working for Judge Pfeiffer is the reason
 for the need to work overtime while others have apparently cut down on
 their overtime because they do not wish to work for an administrative
 law judge other than their regularly assigned one.  /5/
 
                        Discussion and Conclusions
 
    There is no dispute in this case that the decision to institute the
 rotational system was a non-negotiable management right to assign and
 direct employees and to assign work under Sections 7106(a)(2)(A) and (B)
 of the Statute.  The only question remaining is whether there is an
 obligation to bargain over the impact and implementation of that
 decision under Sections 7106(b)(2) and (3).  That obligation is
 dependent upon a showing that the change in working conditions has
 resulted in or may reasonably be expected to result in a substantial
 impact on employees.  /6/ I find that such a showing has not been made.
 
    The major thrust of the General Counsel's case is that by requiring
 employees to work for Judge Pfeiffer, Respondent caused a backlog in
 their regular work which necessitated overtime in order to meet
 production deadlines.  /7/ However, the record does not demonstrate that
 employees, generally, are working any more overtime now than they were
 prior to the institution of the rotational system.  There is an
 indication, in fact, that some employees may even be working less
 overtime than they did before.  What is clear is that the production
 levels in the Office have not diminished since the two memorandums were
 issued in January 1981 and that monthly deadlines have continued to be
 met.
 
    Under the rotational system, each of 9 Mag Card Operators is to work
 4 hours each month in order to type, collectively, the 13 decisions
 which are written each month by Judge Pfeiffer.  Since they each spend
 an average of 112 hours per month on the Mag Card machine, only 3.6% of
 their time would be devoted to Judge Pfeiffer's work, assuming they
 found it necessary to expend the entire 4 hours per month.  However, the
 mathematics of this case would indicate that the maximum extent of Judge
 Pfeiffer's work requirements is even less than 3.6% of each Clerk's
 time.  The evidence indicates that from two to five decisions can be
 typed in a four hour period.  This means that any one decision takes
 from 48 minutes to two hours to type.  At the least then, it would take
 10.4 hours to type his 13 decisions, or, at the longest, 26 hours.  At
 any rate, the time requirement is certainly less than the 36 hours
 budgeted each month and to be split among nine Mag Card Operators.  In
 fact, those figures suggest that at the most, each Mag Card Operator
 would have to devote 2.8 hours per month (2 1/2% of the Operator's
 monthly machine time) or, at the least, 1.16 hours per month (slightly
 over 1% of monthly machine time) in order to complete all of Judge
 Pfeiffer's work.
 
    Under the circumstances, I conclude that the additional workload
 brought about by the rotational system is of such limited magnitude and
 is so sufficiently diffused among the workforce that its imposition does
 not have a substantial impact on employees.  Nor am I persuaded on this
 record that any impact which it may have is, in any event, adverse.  The
 Office manager testified that some of the Mag Card Operators
 "consistently depend on overtime as an economic means" and that, in
 those cases, denial of overtime becomes a problem with which he has to
 deal.
 
    Having found and concluded that the evidence is insufficient to
 demonstrate a violation of the Statute as alleged, I recommend that the
 Federal Labor Relations Authority issue the following:
 
                                   ORDER
 
    ORDERED, that the complaint in Case No. 23-CA-1974 is dismissed.
 
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
    Dated:  December 4, 1981
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ At the hearing, Counsel for the General Counsel moved to amend
 the Complaint to delete another allegation originally contained in the
 Complaint.  Because the parties were able to reach a settlement on that
 matter, the motion was unopposed and it was granted from the Bench.
 
 
    /2/ Although the record does not indicate the precise nature of a
 "Mag Card" machine, one may infer that the evidence that it is a species
 of automatic typewriter or word processor.
 
 
    /3/ The rotational system was designated as temporary but,
 apparently, staffing and hiring conditions had not changed