17:1011(137)CA - HHS, SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA



[ v17 p1011 ]
17:1011(137)CA
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
       practice