18:0073(13)CA - HHS, SSA and AFGE Local 3186 -- 1985 FLRAdec CA



[ v18 p73 ]
18:0073(13)CA
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
 employee