18:0073(13)CA - HHS, SSA and AFGE Local 3186 -- 1985 FLRAdec CA
[ v18 p73 ]
The decision of the Authority follows:
18 FLRA No. 13 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3186, AFL-CIO Charging Party Case No. 3-CA-30725 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. 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. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-30725 be, and it hereby is, dismissed. Issued, Washington, D.C., May 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Daniel H. Green, Esquire Jay Clary, Esquire For the Respondent Bruce D. Rosenstein, Esquire For the General Counsel Before: BURTON S. STERNBURG, 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.Section 7101 et seq. and the Rules and Regulations issued thereunder. Pursuant to a charge filed on August 31, 1983, by Local 3186, American Federation of Government Employees, (hereinafter called Local 3186 or the Local Union), a Complaint and Notice of Hearing was issued on October 25, 1983, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Department of Health and Human Services, Social Security Administration, (hereinafter called Respondent or SSA), violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by virtue of its actions in assigning four additional hours of work per week to part-time unit employees working at its Rockville, Maryland, Branch Office without affording the Local Union prior notice of its actions and thereafter refusing to negotiate with the Local Union with respect to the impact and the manner of implementation of the additional hours of work. A hearing was held in the captioned matter on January 4, 1984, in Washington, D.C. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on February 6, 1984, which have been duly considered. /1/ Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact On August 30, 1979, pursuant to consolidation proceedings, the American Federation of Government Employees, AFL-CIO (AFGE) was certified as the exclusive representative in a nationwide unit of the Respondent's professional and non-professional employees. The unit employees working in Respondent's Rockville, Maryland, Branch Office, the installation involved in the instant complaint, are represented by AFGE Local 3186. Ms. Joanne Bothwell is the president of Local 3186 and Ms. Vickie Gregory is the chief steward for Local 3186. According to Ms. Gregory, in her capacity as chief steward she is responsible for handling "all on site negotiations and grievances." Pursuant to the above mentioned consolidation proceedings AFGE and the Respondent executed a collective bargaining agreement which became effective on June 11, 1982. Article 4 of this agreement which is entitled "Negotiations During the Term of the Agreement" provides in pertinent part as follows: 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, OMBP, or the designated 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. * * * * Section 3-- Component Level The parties agree that notice of proposed changes which affect only one component (Field, Program Service Centers, Headquarters, Hearings 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. * * * * 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 will provide the designated union 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 not less than the number of management's negotiators) designated by the appropriate union official. Due to budgetary constraints, the Respondent on December 20, 1982, was forced to curtail the weekly hours of all part-time employees and restrict such employees to their tours of duty. Inasmuch as the part-time employees' tours of duty were 32 hours per week, many of the part-time permanent employees who had been working forty hours per week prior to December 20, 1982, suffered an eight hour per week loss in working hours. In the Rockville, Maryland, Branch Office, the office involved in the instant complaint, the four part-time permanent employees there employed were limited to four eight hour days per week after December 20, 1982. The aforementioned reduction in hours was of great concern to the National Office of the Union and discussions thereon were held in February and June of 1983 between representatives of the Union's National Office and the SSA's National Office. Additionally, extensive informal discussions on the issue were held between Mr. Peter Spencer, Director of Labor Relations for SSA and Mr. John Harris, AFGE Field Operations Council President. On or about August 12, 1983, Mr. Spencer was informed by his superior during a meeting in Birmingham, Alabama, that the Department of Health and Human Services (HHS), the parent of SSA, had given SSA some limited relief with respect to SSA's 1983 Fiscal Year budgetary ceiling. The amount of relief in terms of hours available to be worked during the remaining months of the 1983 Fiscal Year was set forth in a three page memorandum from the Associate Commissioner for Management, Budget and Personnel to the Deputy Commissioners of Operations, Programs and Systems. The aforecited memorandum indicates that a number of different components of SSA were awarded additional hours of work to be assigned to their respective part-time permanent employees for the remainder of the fiscal year. /2/ The August 10, 1983, memorandum, other than explaining the effects of the 1983 budgetary relief and setting forth the hours allotted to each component, did not go into the specifics with respect to how each component should assign the additional hours to its respective employees located in the various SSA sub-offices throughout the United States. On the following Monday, August 15, 1983, upon his return to Washington, Mr. Spencer unsuccessfully attempted to reach Mr. Johnson on the telephone. The next morning, August 16, 1983, Mr. Spencer reached Mr. Johnson by telephone and related to him the good news with respect to the budgetary relief being accorded to a number of the SSA components. Following the telephone call Mr. Spencer sent a copy of the Associate Commissioner's August 10, 1983, memorandum to Mr. Johnson. According to the uncontested testimony of Mr. Spencer, Mr. Johnson was delighted with the fact that some budgetary relief had been granted and at no time made any request to bargain on any aspect of the budgetary relief set forth in the August 10, 1983 memorandum. Further, according to the uncontested testimony of Mr. Spencer, inasmuch as the budgetary relief was being applied to more than one component of SSA, it became a national issue and accordingly was subject to bargaining only on the national level pursuant to Section 2, Article 4 of the collective bargaining agreement. In the absence of any delegation to a subordinate lower level Union local, the bargaining obligation was between Mr. Spencer and Mr. Johnson on a national level. On August 15, 1983, the same day that Mr. Spencer had unsuccessfully attempted to reach Mr. Johnson, Ms. Joan Keston, the Branch Manager for SSA's Rockville, Maryland facility, received a telephone call in the afternoon from her District Manager, Mr. Walter Miller, /3/ wherein she was informed that she had been allotted four additional hours per part-time employee per week for the remainder of the fiscal year. Ms. Keston was further informed that the additional allocation of hours was not necessarily permanent and that it might well be subject to a future change. Upon receiving the information about the availability of additional hours for the part-time employees, Ms. Keston immediately contacted her four part-time employees, informed them of the availability of four additional hours per employee to be worked that week on a voluntary basis and the fact that such additional hours were to be worked from 8 a.m. to 12 p.m. on their respective scheduled days off. According to Ms. Keston, she did not advise Union Steward Gregory of the availability of the additional hours because she, Ms. Gregory, was away from her desk on some other Union business. Further, according to Ms. Keston, she could not wait for Ms. Gregory's return since one of the part time employees, Ms. Edna Jean Bynum, was scheduled to be off the next day and if she was to be given the opportunity to work an additional four hours it was imperative that Ms. Bynum be apprised of the opportunity that afternoon so that she could make plans to work the following day. Having apprised Ms. Bynum, she decided to also inform the other three part-time employees at the same time since they were scheduled to be off the forthcoming Wednesday, August 17, 1983. According to the undisputed testimony of Ms. Keston, the part-time employees could not work overtime and the only opportunity for them to work for four additional hours would have been their respective scheduled days off. If Ms. Bynum had not been informed on Monday about the availability of four hours work on Tuesday, Ms. Bynum would have lost the opportunity to work the additional hours that week. On Tuesday, August 16th, Union Steward Gregory, who had heard of Ms. Keston's actions via the grapevine, confronted Ms. Keston and inquired why she had not been given official notice of the availability of additional hours for part-time employees. Ms. Keston apologized for not giving Ms. Gregory advanced notice of the additional hours for part-time employees and explained the reasons for her actions, i.e. Ms. Gregory's absence from the office at the time Ms. Keston became aware of the availability of the additional hours for part-time employees and the necessity of giving Ms. Bynum immediate notice and the opportunity to voluntarily work the next day which was her scheduled day off. Following her conversation with Ms. Keston, Union Steward Gregory, who had received complaints from some of the part-time employees about having the additional four hours scheduled only for the time period of 8 a.m. to 12 p.m., contacted Local Union President Joanne Bothwell and inquired as to what procedure she, Ms. Gregory, should follow with respect to the assignment of the additional hours. Ms. Bothwell put a telephone call through to the Area Director's office for the purpose of determining what restrictions, if any, had been placed upon the local managers with respect to the assignment of the additional hours allocated to the part-time employees. Ms. Carmen Minnick, the Area Administrative Assistant, informed Ms. Bothwell that it was her understanding that the local managers had the discretion to utilize the hours as they saw fit, but that she would check the matter out with Area Director Lucius Clark. Mr. Clark subsequently called Ms. Keston and discussed with her the manner in which she was assigning the additional hours to the part-time employees, i.e. 8 a.m. to 12 p.m. on their respective days off. Upon learning from Ms. Keston that she had decided on such a schedule because that was the time that the investigative case load in her office was the heaviest, Mr. Clark informed Ms. Keston that he was in agreement with her decision with respect to the scheduling of the additional hours. Mr. Clark later communicated this information to Ms. Bothwell. On Wednesday, August 17, 1983, pursuant to instructions from Ms. Bothwell, Ms. Gregory submitted a number of bargaining proposals to her supervisor, Ms. Helaine DiGravio, who in turn subsequently submitted the proposals to Ms. Keston. Upon receiving the Local Union's bargaining request, Ms. Keston put a telephone call through to Mr. Michael Gutkind, the Regional Labor Relations Specialist, to ascertain what her bargaining obligations, if any, were. Mr. Gutkind informed Ms. Keston that the matter of the additional hours for part-time employees had been taken care of at the national bargaining level and that she was under no obligation to bargain with the Local Union. On August 18, 1983, Ms. Keston met with Ms. Gregory to talk about the four proposals submitted earlier by Ms. Gregory. /4/ Ms. Keston informed Ms. Gregory that proposals (a) and (d) were not possible since they involved overtime and overtime was not authorized. Ms. Keston further informed Ms. Gregory that proposal (b) was contrary to the authorization inasmuch as it provided for the utilization of hours prior to the accumulation of same. /5/ In view of the foregoing, Ms. Keston took the position that only proposal (c), which she had already utilized, was the only possibility. While it is clear from the record that the four hours of additional work could have been assigned to the part-time employees at any time during their scheduled days off, Ms. Keston acknowledged on cross examination that she had no intention of negotiating any change in the work schedule that she had already assigned to the four part-time employees. All four part-time employees volunteered to work the extra four hours the week of August 15, 1983. The following week, part-time employee Ms. Edna Jean Bynum worked her additional four on Tuesday morning. Mr. Frank Markosky was on annual leave and therefore did not work at all that week. Mr. Hugh Hamberry and Ms. Kathleen McHugh both worked eight hours on their scheduled day off. Thereafter, all part-time employees were given the opportunity to work a full forty hours per week. /6/ According to Ms. Gregory, she wanted to bargain over the impact and manner of implementation of the additional hours because she had received complaints from a number of the part-time employees concerning transportation and baby-sitting problems. Discussion and Conclusions The General Counsel takes the position that the Respondent violated Sections 7116(a)(1) and (5) of the Statute by not giving the Local Union appropriate timely notice of the availability of additional hours for part-time employees and thereafter failing to bargain in good faith with the Local Union with respect to both the impact and manner of assignment of the additional hours to the part-time employees located in the Rockville, Maryland, Branch Office. While acknowledging that the prime level of recognition exists at the National Level by virtue of the August 30, 1979, consolidated proceedings, the General Counsel nevertheless takes the position that inasmuch as the specific regional application of the additional hours allotted to part-time employees was not included in the general notice given to the National Union but rather was the subject of a subsequent delegation to the SSA's Branch Managers, Respondent was under an obligation to bargain on the Local level with regard to how the local Branch managers would utilize their respective discretion with regard to the assignment of the additional hours. Respondent takes the position that inasmuch as the change in hours of the part-time employees was applicable to more than one component of the SSA its bargaining obligation, pursuant to Article 4 of the collective bargaining contract, was limited to the National Level of the Union. While it concedes that the notice on the National Level was not in conformance with past practice, i.e. 10 day lead time, it defends its action in giving the National Union notice simultaneously with the implementation of the change on the basis of an "overriding exigency," namely the fact that the hours would have been lost for the week had not notice of the opportunity to work been given to the employees immediately. /7/ Respondent further argues that in the absence of any delegation from the National Union to the Local Union it was under no obligation to bargain with the Local Union absent a showing that Ms. Keston's actions with respect to the assignment of the additional hours deviated from the terms of the August 10, 1983 memorandum. Finally, Respondent takes the position that even if an obligation to bargain with the Local Union should be found to exist, Respondent was excused from bargaining on three of the four proposals submitted by the Local Union since they were contrary to the terms of the August 19, 1983 memorandum which made the additional hours available. In such circumstances, it appears to be the position of the Respondent that the only alternative was the assignment of the additional hours in the manner originally chosen by Ms. Keston. A review of the charge, complaint and positions of the parties make it clear that resolution of the instant controversy turns on the bargaining obligation owed by Respondent to Local Union 3186, which is the AFGE's representative at Respondent's Rockville, Maryland, Branch Office. Prior to August 30, 1979, the date of the consolidation proceedings, Respondent was under an obligation to bargain with various locals of the AFGE at the various installations of Respondent where such locals had been accorded exclusive recognition in appropriate units. However, subsequent to August 30, 1979, by virtue of the consolidation proceedings, in the absence of a delegation to the contrary, Respondent's bargaining obligation with the AFGE was limited to the AFGE National Office. Department of Health and Human Services, SSA and Local 1346, AFGE, AFL-CIO, 6 FLRA 202 (1981). Subsequent to the consolidation proceedings the Respondent and the National Office of AFGE executed a collective bargaining agreement wherein they agreed to the specific procedures to be followed with respect to "Negotiations During the Term of Agreement" concerning changes in conditions of employment. These procedures were set forth in Article 4 of the Collective Bargaining Agreement and provided for different levels of negotiation predicated upon the extent and/or application of the specific changes in conditions of employment. Section 2 of Article 4 makes it clear that when a change in a condition of employment concerns more than one component of SSA then bargaining on such change shall be on the National Level. In view of the foregoing and based upon a literal reading of the August 10, 1983 memorandum and the uncontroverted testimony of Mr. Spencer concerning the application of the memorandum to more than one component of SSA, I find that since the August 10, 1983 memorandum which provided additional hours to part-time employees was applicable to more than one component of SSA, Respondent, in the absence of any delegation by the National Office of AFGE to Local Union 3186, was obliged to give appropriate notice to, and bargain on request with, only the National Office of AFGE. While it is true, as pointed out by the General Counsel, that the August 10, 1983 memorandum, a complete copy of which was supplied to the National Office of the AFGE, other than allocating additional hours to various components of SSA for assignment to their respective part-time employees, did not go into specifics as to the times the hours were to be worked, I can not conclude, as urged by the General Counsel, that since such subject fell solely within the discretion of local managers a separate bargaining obligation arose on the Local Union level. While admittedly, given the number of SSA sub-offices throughout the United States, it would be a difficult and time consuming task for the National Office of AFGE to negotiate the impact and/or the manner of implementation of the additional hours at every installation and that such task would be more easily and effectively bargained at the Local Union level, the fact remains that by virtue of the consolidation proceedings and Article 4 of the subsequent collective bargaining agreement, Respondent's only obligation with respect to bargaining the issue, absent a specific delegation from the National Office of AFGE to one of its Local unions, was with the National Office of the AFGE. In reaching this latter conclusion I rely not only upon a literal reading of the collective bargaining contract but also on the uncontroverted testimony of Mr. Spencer, the only witness testifying on the applicability and mechanics of the collective bargaining agreement. According to Mr. Spencer, only if the local manager had deviated from the August 10, 1983 memorandum would a bargaining obligation arise at the Local Union level. Accordingly, having concluded that Respondent was under no obligation to bargain with Local Union 3186 with respect to the impact and/or manner of implementation of the additional hours available for part-time employees, it is hereby recommended that the Authority adopt the following order which dismisses the complaint in its entirety. IT IS HEREBY ORDERED, that the Complaint should be, and hereby is, dismissed in its entirety. BURTON S. STERNBURG Administrative Law Judge Dated: March 20, 1984 Washington, DC --------------- FOOTNOTES$ --------------- /1/ In the absence of any objection, the motion of the General Counsel to correct the transcript is hereby granted. /2/ SSA is divided into six components, i.e. Field Operations, Field Assessment, Headquarters, Program Service Center, Data Operations Center and Office of Hearings and Appeals. /3/ The record reveals that the chain of command within SSA is as follows: Branch Manager, District Manager, Area Director, Regional Commissioner, Deputy Commissioner, Associate Commissioner, Commissioner. /4/ Ms. Gergory's proposals were as follows: "(a) Four nine hour days a week, or a combination of OT hours to bring their hours up to the additional four. (b) Work one eight hour day during one of their regularly scheduled days off. (c) Work two half days as per your proposal. (d) Eight hours on Saturday during mid-pay week, in conjunction with regularly scheduled overtime as available." /5/ Inasmuch as only four hours were available per man for the first week, the scheduling of an eight hour day the first week would have forced the agency to have advanced and utilized hours which had not as yet been accumulated. /6/ The record indicates that the various installations of SSA kept a tally of the additional hours that were available to be worked on a voluntary basis. When there were not enough volunteers available for the additional hours in any particular installation, the additional hours would be transferred to another installation where volunteers were available. Accordingly, enough hours were transferred from other installations to the Rockville, Maryland Office to allow the four part-timers there employed to work forty hours per week if they so desired. /7/ Inasmuch as I do not understand the complaint to encompass the sufficiency of the notice given to the National Union, I need not and do not make any findings thereon.