17:1011(137)CA - HHS, SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA
[ v17 p1011 ]
The decision of the Authority follows:
17 FLRA No. 137 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 7-CA-30405 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. Thereafter the General Counsel and the Charging Party filed exceptions and briefs. 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. In agreement with the Judge, the Authority concludes that the complaint which alleges a violation of section 7116(a)(1) and (5) of the Statute should be dismissed. The Authority concludes that the facts as found by the Judge do not establish that the Respondent had a duty to bargain concerning the change in established conditions of employment of unit employees at the Mid-American Program Service Center, Kansas City, Missouri (MAPSC). Thus, as found by the Judge, guidelines issued by the Respondent to its supervisors which, inter alia, concerned the rescheduling of lunch periods in connection with annual leave, merely restated a policy which had been established and was in effect since 1979 throughout Respondent's nationwide components and headquarters, with the sole exception of MAPSC. See United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 13 FLRA 636 (1984); Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 6 FLRA 240 (1981). These guidelines do not require MAPSC to change its local policy, established in 1979, concerning the rescheduling of lunch periods in conjunction with annual leave. Moreover, when MSPAC decided to change its policy in January 1983, to make it consistent with the national policy, it notified the Charging Party's local official, pursuant to the parties' negotiated agreement concerning proposed changes of working conditions which affect only one component, and the Union did not request to bargain concerning the proposed change. Under these circumstances, the Authority concludes that the Statute was not violated when the Respondent issued its guidelines to supervisors or when MAPSC implemented its proposed changes in the absence of a request to bargain by the Charging Party or its local. ORDER IT IS ORDERED that the complaint in Case No. 7-CA-30405 be, and it hereby is, dismissed. Issued, Washington, D.C., May 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Cathy A. Auble, Esq. James J. Gonzales, Esq. For the General Counsel Mr. Reginald T. Huey For the Charging Party Carl J. Clayton, Esq. Mr. Robert D. Pack For the Respondent Before: ELI NASH, JR., Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. Upon an unfair labor practice charge filed by the American Federation of Government Employees, AFL-CIO (herein referred to as AFGE or the Union), on May 24, 1983 and amended on August 26, 1983, against the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland (herein referred to as Respondent), the General Counsel of the Authority, by the Regional Director for Region 7, issued a Complaint and Notice of Hearing on August 31, 1983, alleging that since on or about November 26, 1982, Respondent violated section 7116(a)(1) and (5) by unilaterally changing the terms and conditions of employment in one of its components by implementing a regulation entitled "Flextime PMS of 005", which implementation was first discovered by the Union during March 1983, without giving the Union notice or affording it the opportunity to bargain over the substance, impact and implementation of the charge. Respondent's Answer substantially denied the allegations of the Complaint. A hearing on the Complaint was conducted in Kansas City, Kansas, at which time all parties were represented and afforded full opportunity to adduce evidence, /1/ call, examine and cross-examine witnesses, and argue orally. Briefs were filed by respondent and Counsel for the General Counsel. Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following findings of fact, conclusions of law, and recommendations: Findings of Fact There is no jurisdictional question herein. The Mid-American Program Service Center, Kansas City, Missouri (herein called MAPSC or Kansas City Program Center) is a Social Security Program Service Center located in Kansas City. The Union is the exclusive representative of a nationwide consolidated unit of Social Security Administration employees. As exclusive representative in a nationwide consolidated unit the AFGE delegated authority to negotiate on behalf of Respondent's employees to the AFGE General Committee of the Social Security Administration, (hereinafter called the General Committee.) The General Committee, is headed by Mr. Arthur Johnson, who has occupied the position since December 1979. In addition to heading the General Committee, and acting thereby as national spokesperson, Mr. Johnson also serves as President of American Federation of Government Employees, Local 1336 (herein called the local), the local exclusive representative involved herein. Mr. Johnson has been local union president since about 1964. More will be said about Mr. Johnson's local role later. As national spokesperson, Mr. Johnson is the AFGE representative designated to receive notice from Respondent concerning any changes in conditions of employment, and to act as point of contact within AFGE over matters which the Respondent might wish to bring to AFGE's attention. Consistent with this role as national spokesperson and the previous practice between AFGE and the Respondent, Mr. Johnson would have in his national spokesperson role, received pre-implementation notice concerning matters such as the 1982 Flextime PMS regulation. The existing practice between the parties is that the Respondent, usually through its Director of Labor Relations Peter Spencer, would give written notice of matters to Mr. Johnson, addressing Mr. Johnson exclusively in his capacity as national spokesperson. According to Mr. Johnson, he has never delegated his authority or responsibility to receive notice on national matters from the Respondent to anyone. He has, however, delegated the authority to initiate bargaining, which he usually does in writing, but these delegations are limited to a particular issue. Further, Mr. Johnson would assign the issue to one of the members of the General Committee. One of the component parts of the General Committee is the Payment Center Council, which represents employees in the various payment service centers. One of these Payment Service Centers, as already noted, is Respondent's Mid-America Program Service Center located in Kansas City, Missouri. As already noted, Mr. Johnson is the President of Local 1336, and as president Johnson is responsible for handling the day-to-day matters involving labor relations issues affecting employees at MAPSC. In this role, he is also responsible for receiving notice on behalf of the local from MAPSC where local matters are involved. When giving notice of changes in conditions of employment the practice between MAPSC and the local is that MAPSC usually gives written notice of local matters through its Director of Management to Mr. Johnson, addressed to Johnson in his capacity as President of the local. On the occasion in question, local notice was given orally originating from the Director of Management or one of the labor relations specialists. According to Mr. Johnson, he has never delegated the authority to receive notice on behalf of the local to anyone and only he has authority to initiate bargaining on behalf of the local. Such authority is in writing and usually delegated to an officer of the local such as the chief steward. By letter dated January 11, 1983, MAPSC's Director of Management notified Mr. Johnson, as local president, that MAPSC intended to follow the 1982 regulation and attached a copy of the 1982 regulation to the letter. It is uncontroverted that Mr. Johnson, in his capacity as national spokesperson, never received notice of the implementation of the 1982 regulation. Mr. Johnson's first knowledge of the 1982 regulation, in any official capacity, was when he received the January 11, 1983 letter from MAPSC. Even though the only notice to Mr. Johnson came from MAPSC, MAPSC Labor Relations Specialist Robert Pack conceded that he had no delegated authority from Respondent to bargain over the substance of the 1982 regulation. The 1982 regulation, as previously noted had been implemented for approximately two months by the time Mr. Johnson received any notice. The policy in question was first introduced around February 22, 1979. The Respondent established a policy for its employees located at its headquarters and program service centers allowing them to schedule a lunch period during the last two hours of a workday so long as such a "late lunch" was taken contiguously to a period of leave. The above policy was published in the SSA personnel Guide for supervisors on the above date and read as follows: Employees are not permitted to take their lunch break within 2 hours of the beginning or end of their 8-1/2 hour day unless the lunch is contiguous to a period of leave.-- A local policy, it must be noted, existed in the Kansas City office which was contrary to Respondent's national policy to restrict employees' components from taking their respective lunch periods during the first two and last two hours of their eight-hour workday unless such lunch period was scheduled in conjunction with a minimum of two hours of leave. Sometime around November 26, 1982, Respondent issued and implemented in its Personnel Manual for Supervisors-- SSA called "Flextime PMS g005" which provided, in pertinent part, that: Employees are not permitted to take their lunch break within 2 hours of the beginning or end of their 8-1/2 hour day. So long as this rule is not violated, supervisors may arrange an employee's lunchtime to connect it to a period of leave. The Flextime PMS g005 regulation was issued by Respondent, because it intended to reaffirm its policy of restricting certain employees from taking one half hour work periods during the first two and last two hours of their eight hour work day unless scheduled in conjunction with a minimum of two hours leave. Prior to the issuance of this regulation, Respondent's policy for its employees located at headquarters and in its program service centers, as previously noted, was that employees were able to schedule a lunch period during the last two hours of the workday so long as such a late lunch was taken contiguously to a period of leave. Upon receiving the January 1983 memorandum, Mr. Johnson designated chief steward Mike Hughes to get an explanation or classification of what the cover letter meant from labor relations Specialist Bob Pack. Mr. Hughes returned to report the first of his conversations with Mr. Pack which was that under the 1979 policy an employee could take a lunch break in the last two hours of the day so long as it was connected with a period of leave; and under the new 1982 procedure they could not. Mr. Johnson's understanding was that under the 1979 procedure the supervisor had more discretion to give the leave than in the 1982 procedure. Article A of the parties collective bargaining agreement provides instructions concerning the level at which pre-implementation notice of Respondent-initiated changes in condition of employment must be given. The 1982 regulations herein was distributed to three components within Respondent: headquarters, payment service centers, and data operations centers. Such distribution shows that the implementation of the 1982 regulation covered more than one component of the Respondent within the meaning of the parties collective bargaining agreement. Article 4 of the parties collective bargaining agreement dealing with negotiations between the parties provides, as follows: Article 4 NEGOTIATIONS DURING THE TERM OF THE AGREEMENT Section 1-- General The Administration will provide the Union reasonable advance notice prior to implementation of changes affecting conditions of employment subject to bargaining under 5 USC 71. Upon notice from the Administration of a proposed change, the designated union representative will notify the designated management representative of its desire to consult and/or negotiate on the change. The Union will submit written proposals if applicable within a reasonable period after notice of the proposed change. Bargaining will begin as soon as possible, and will not exceed ten (10) working days. All issues not resolved at that time may be referred to the Federal Service Impasses Panel for resolution under its rules. Section 2-- National Level A. The parties agree that notice of proposed Administration-wide or intercomponent changes will be dealt with by the parties at the National level. For notification at the National level the Associate Commissioner, OMNBP, or the designate management representative will provide the Spokesperson, General Committee, or designated AFGE Local 1923 or Council representative with timely notice and seven copies of proposed management initiated changes. 1. Negotiations over conditions of employment that impact on all six (6) components will be represented by the following negotiators and will be designated by the appropriate AFGE Council and Local 1923. (a) Local 1923 (b) AFGE National Council of SSA Payment Centers (c) AFGE National Council of SSA Field Operations (d) AFGE National Council of SSA Office of Hearings and Appeals (e) AFGE National Council of Data Operations Centers (f) AFGE National Council of Field Assessment 2. Negotiations over conditions of employment that impact on less than six (6) but more than one (1) component shall be represented by one (1) negotiator designated by each affected component. Section 3-- Component Level The parties agree that notice of proposed changes which affect only one component (Field, Program Service Centers, Headquarters, Hearing and Appeals, Field Assessment Offices, Data Operation Centers) will be matters dealt with by the parties at the component level. The designated management representative will provide the designated union representative timely notice of proposed component-wide management initiated changes. Negotiations over conditions of employment that impact on one (1) component shall be represented by at least two (2) negotiators (but not less than the number of management's negotiators) designated by the appropriate council president. Section 4-- Regional/Program Service Centers/Data Operations Centers Changes The parties agree that notice of proposed changes which affect only one Field Operations Region, Field Assessment Region, Hearings and Appeals Region, Program Service Center, and Data Operations Center, will be given to the Union and upon request negotiated at that level. The designated management representative with timely notice of proposed management initiated changes. Negotiations over conditions of employment that impact on the above entities will be represented by two (2) negotiators (but less than the number of management's negotiators) designated by the appropriate union official. A designated union representative representing the Union in negotiations under the terms of this agreement, who would otherwise be in duty status will be authorized official time and shall be entitled to reimbursement for travel and per diem expenses, as required by 5 USC 71. However, the Union may be represented by additional negotiators in a non-duty status. Section 5-- Modification of Time Frames All time frames under this Article may be modified by mutual consent. Inasmuch as three components were affected by the 1982 regulation, the Charging Party and General Counsel assert that Article 4, Section 2 above would apply, and therefore the national spokesperson should have been notified of the proposed change. The contract also provides that the only circumstances in which a local representative of AFGE is to receive notice of planned changes in working conditions is where the change is to affect only one installation. In addition, if Respondent were making a change by means of issuing a written announcement of same, and the change was to affect only one installation, the distribution code at the bottom of the announcement would specify the particular installation. In the case of a change that was to affect only MAPSC, the correct distribution code would be MAPSC, and would not specify SSA or that the change had come from Respondent. As noted, since February 1979, MAPSC had a practice of allowing employees to schedule their respective lunch periods of thirty minutes in connection with a leave period of 15 minutes or more in such a manner as to allow employees to take a lunch period within the last two hours of their workday. This practice was not consistent with Respondent's 1979 policy. MAPSC enforced the 1982 regulation, effective March 8, 1983, and thereby stopped the practice of permitting employees to take their respective lunch periods during the last two hours of the workday and contiguously with a minimum period of leave of 15 minutes. Indeed the collective bargaining agreement provides that all practices which were in effect on the effective date of the contract and which were not specifically covered by the contract were to continue as past practices and therefore could not be changed except in accordance with the Statute. /2/ The effective date of the contract is June 11, 1982. The past practice at issue existed from at least February 1979. The contract is silent on the matter of lunch breaks, as the parties decided during national negotiations on Article 31, "Time and Leave," to let past practices concerning lunch breaks to prevail. Conclusions The General Counsel asserts that Respondent changed a past practice which had been known to it for nearly three years, that it initially gave no notice and when notice was finally given, that notice was given at the wrong level. In addition the General Counsel claims that the flextime regulation herein was a negotiable subject. Respondent argues that the issuance of PMS g005 was not a change in a condition of employment. If so, Respondent acknowledges an obligation to notify and negotiate at the national or consolidation level. Case law dictates that in order to sustain the burden of proving a past practice it must be established not only that management knowingly, but consistently allowed or condoned the practice to continue. Polaris Missile Facility Atlantic, Charleston, South Carolina, 6 FLRA 372 (1981); Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 3 FLRA 655 (1981); Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 6 FLRA 240 (1981). Where management merely reaffirms a working condition there is no change in conditions of employment. Department of Health, Education and Welfare, Region V, Chicago, Illinois, 4 FLRA 736 (1980); Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 6 FLRA 240 (1981). This same case law places the burden of proof on the General Counsel to establish by a preponderance of the evidence that agency management knowingly and consistently acquiesced in the practice. Applying these principles to the instant matter, it is clear that the General Counsel would have to prove, since this is a national regulation and all sides contend that notification and bargaining should come from the national level, that national management was aware of and condoned the "late lunch" policy practiced in the Kansas City Service Center before it could establish a past practice requiring negotiations prior to the change. It must be noted that the "late lunch" policy is not all that the name implies. The General Counsel relies, erroneously in my view, on the lack of negotiations over lunch periods. What is involved here is not a typical lunch period, but a leave policy. The two are distinguishable. In my view, the General Counsel failed to meet the burden of proof. The record leaves no doubt that Flextime PMS g005 is a national regulation or guide. /3/ Consequently, bargaining on the "late lunch" policy, if required, would be at the national level. The General Counsel focused on exceptions to the national policy at the Kansas City Service Center where for several years Respondent's local supervision has indeed allowed exceptions to the national policy. He ignores the fact that most other components had applied the late lunch policy in a fashion consistent with what Respondent sought to obtain here. While the General Counsel established that local supervision allowed such exceptions it did not establish when or under what circumstances national management became aware of the local exceptions or that national management ever acquiesced in the local policy. In fact, since most other components applied the policy in a fashion consistent with the 1982 change it would not be unreasonable to assume that Respondent was unaware of the different interpretation of Kansas City supervisors until shortly before the regulation or guide was issued. Similarly, the record suggests that national management never acquiesced in any local manager's interpretation of the February 1979 regulation which was inconsistent with the national policy. Since the policy was established at the national level and there apparently was no authority at the Service Center level to change that policy, it is difficult to see how local exceptions to the national policy could ripen into an established past practice at a level where there is no obligation to bargain. It is my opinion that the policy could have matured into a condition of employment only if, at the national level, Respondent had knowledge of and acquiesced in the local exception. Thus, exceptions granted by local supervisors, when they had no authority to do so, could hardly be considered as acquiescence by Respondent at the national level. Respondent's regulation of November 1982 made it clear that it did not condone local supervisors actions regarding a "late lunch" policy inconsistent with its interpretation of that policy and the 1982 regulation clearly affirmed its dissatisfaction. In my opinion, Respondent's November 1982 regulation was a reaffirmation of an existing policy and not a change in conditions of employment at the Kansas City Service Center. Finally, the General Counsel suggests that Respondent acquiesced in the Kansas City Service Center's application of the regulation, or that Respondent had knowledge of and allowed the practice at the Kansas City Service Center to continue. Again, the record discloses that Respondent's written and unwritten policy was always not to allow employees to take their lunch periods during the last two hours of the day unless in connection with two hours leave. Respondent's latest regulation shows no change in that position, but was merely an attempt in writing to bring all of the Service Centers under the same regulation. Clearly a reaffirmation of what it interpreted the policy to be and contrary to the General Counsel's contention that it allowed the "late lunch" practice to continue. Since it is my conclusion that the General Counsel did not establish by a preponderance of the evidence that Respondent changed a condition of employment, I therefore, deem it unnecessary to decide whether notification was given to a proper union official. In light of all of the foregoing, it is found that Respondent did not violate section 7116(a)(1) and (5) of the Statute by unilaterally changing the terms and conditions of employment by implementing a regulation entitled "Flextime PMS of 005" without providing prior notice to the Union and affording it an opportunity to bargain over the substance, impact and implementation of the change. /4/ Accordingly, it is recommended that the Authority adopt the following Order: ORDER It is hereby ordered that the complaint in Case No. 7-CA-30405, be and, it hereby is, dismissed in its entirety. ELI NASH, JR. Administrative Law Judge Dated: September 27, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The General Counsel's uncontested motion to correct the exhibits of the proceedings is granted. /2/ ARTICLE I GOVERNING LAWS AND REGULATIONS Section 2-- Past Practices It is agreed and understood that any prior benefits and practices and understandings which were in effect on the effective date of this agreement at any level (national, council, regional and local), and which are not specifically covered by this agreement and do not detract from it shall not be changed except in accordance with 5 USC 71. /3/ If it is a guide for supervisors, and such is not clear on the record, there may well be no obligation to bargain, since Respondent would merely be informing its supervisors how to apply the regulation. Based on the findings herein, I deem it unnecessary to decide that issue. /4/ In addition the General Counsel raised issues concerning negotiability and waiver in this matter. In view of the above disposition, I view it as unnecessary to address those issues.