20:0097(10)CA - SSA, Office of Program Operations, Field Operations, San Francisco, Region and AFGE, Council of SSA District Office Locals, San Francisco, Region -- 1985 FLRAdec CA
[ v20 p97 ]
The decision of the Authority follows:
20 FLRA No. 10 OFFICE OF PROGRAM OPERATIONS FIELD OPERATIONS SOCIAL SECURITY ADMINISTRATION SAN FRANCISCO REGION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS SAN FRANCISCO REGION Charging Party Case No. 8-CA-377 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent 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 recommendations, only to the extent consistent herewith. The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute when on December 10, 1979, it unilaterally changed the duties of two Claims Development Clerks in its Oxnard, California, Branch Office, thereby failing to provide the American Federation of Government Employees, AFL-CIO, Council of Social Security District Office Locals, San Francisco Region (AFGE), with advance notice and an opportunity to request bargaining concerning the procedures to be observed in implementing the change in duties and appropriate arrangements for the two employees adversely affected. In finding a substantial impact with regard to the change in duties of the two employees, the Judge viewed the essential fact to be that the two employees were not told whether the assignment was to be temporary or permanent. Therefore, he concluded that inasmuch as it was not unreasonable for the two employees to view the assignment of additional duties as permanent, "the change of duties on December 10, 1979 was sufficient to trigger an obligation to provide the Union with prior notice and to bargain upon request." The Respondent excepted particularly with respect to these findings, contending among other things that the change in duties did not result in an impact which adversely affected the two employees involved. The record reflects that AFGE, during the time period in question, exclusively represented a nationwide consolidated unit, which included the employees of the Oxnard Branch Office, Ventura District, San Francisco Region, Office of Program Operations, Field Operations, Social Security Administration. /1/ With respect to the assignment of duties, the record establishes that on January 10, 1979, the Acting Branch Manager assigned the duties of backup Receptionist to two of the Branch's eight Claims Development Clerks, a duty that was normally performed by a Service Representative. /2/ In the past, Claims Development Clerks had performed the backup duties on a sporadic basis. However, this duty is included in their position descriptions. The assignment of these additional duties lasted for seven weeks and took each Claims Development Clerk no more than 30 to 45 minutes per workday. Subsequent to the issuance of the Judge's Decision herein, the Authority held that "where an agency in exercising a management right under section 7106 of the Statute, changes conditions of employment of unit employees . . . , the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable." U.S. Government Printing Office, 13 FLRA 203, 204-05(1983). The Authority thereafter held that "no duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis." Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174(1984). The Authority has also held that in determining whether the impact or reasonably foreseeable impact of the exercise of a management right on bargaining unit employees is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. Thus, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the Authority looked to such factors as the nature of the change (e.g., the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like); the temporary, recurring or permanent nature of the change (i.e., duration and frequency of the change affecting unit employees); the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. /3/ The Authority also emphasized therein that the factors considered in the circumstances of that case were not intended to constitute an all-inclusive list or to be applied in a mechanistic fashion. Moreover, the Authority noted that a determination as to whether the exercise of a management right under section 7106(a) of the Statute gives rise to a duty to bargain under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. However, in cases where it must be determined whether the nature and degree of impact is more than de minimis, factors such as those listed above will be considered. Turning to the instant case, the Authority finds, contrary to the conclusion of the Judge, that the impact or reasonably foreseeable impact of the change on unit employees' conditions of employment was no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to notify AFGE and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute concerning the procedures to be observed in implementing the change or concerning appropriate arrangements for the two employees adversely affected by the assignment of backup Receptionist duties. In reaching this result, the Authority notes, with respect to the nature of the change, that while the regular job duties of two employees were changed slightly, the backup Receptionist duties in fact only required at most 30 to 45 minutes of their time daily. Moreover, Claims Development Clerks had performed such duties on a sporadic basis in the past, and the assignment of such duties falls within their position description. Thus, the change had only a limited effect on their regular duties. Further, the Authority notes that the change in duties affected only two bargaining unit employees who are part of a nationwide consolidated unit. Additionally, the Authority notes that the assignment of the backup Receptionist duties lasted approximately seven weeks. While the Judge concluded that it was not unreasonable for the two employees to view the assignment as a permanent one, the record does not indicate that the employees were told it was to be permanent and, in fact, the assignment of these duties was limited to only seven weeks. Finally, no evidence was presented regarding past bargaining by the parties or of any past practice by which the parties handled similar or analogous changes in duties. Based on the totality of the facts and circumstances presented, and noting particularly the limited and temporary nature of the change, the very small number of employees affected relative to the size of the bargaining unit, and the lack of any demonstrated bargaining history or past practice of handling similar or analogous changes, the Authority concludes that the impact or reasonably foreseeable impact of the assignment of backup Receptionist duties to the two Claims Development Clerks was no more than de minimis. Accordingly, the Respondent was under no obligation to negotiate with AFGE pursuant to section 7106(b)(2) and (3) of the Statute, and its failure to provide advance notice to AFGE and afford it an opportunity to request negotiations therefore was not violative of section 7116(a)(1) and (5) of the Statute as alleged. ORDER IT IS ORDERED that the complaint in Case No. 8-CA-377 be, and it hereby is, dismissed. Issued, Washington, D.C., September 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 8-CA-377 E. A. Jones, Esq. Gerald M. Cole, Esq. For the General Counsel Wilson Schuerholz For the Respondent Jeffrey H. Dasteel For the Charging Party Before: FRANCIS E. DOWD Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute (herein the Statute), 92 Stat. 1191, 5 U.S.C. 7101 et seq. It was instituted by the issuance of a Complaint and Notice of Hearing on May 23, 1980, by the Regional Director for Region 8 of the Federal Labor Relations Authority, pursuant to a charge originally filed by the American Federation of Government Employees, AFL-CIO, Council of Social Security District Office Locals, San Francisco Region (herein the Union), on February 20, 1980, and amended on March 6, 1980. The Complaint alleges that the Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region (herein the Respondent), had engaged in, and is engaging in, unfair labor practices within the meaning of Section 7116(a)(1) and (5) of the Statute, in that Respondent at its Oxnard, California, Branch Office unilaterally changed the job duties of Claims Development Clerks without first notifying the Union and providing it an opportunity to bargain over the impact and implementation of the change. On June 3, 1980, Respondent filed an Answer denying the allegations of the Complaint. In its brief, Respondent contends that the General Counsel failed to meet its burden of proving that a change of duties actually occurred. A hearing was held in Port Hueneme, California at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and argue orally. Briefs filed by Respondent and the General Counsel have been duly considered. Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. Respondent and Charging Party are parties to a collective bargaining agreement effective October 21, 1977 with an expiration date of September. The bargaining unit encompasses the San Francisco Region (Region IX) which includes a Branch Office in Oxnard, California, situs of the alleged unfair labor practice herein. 2. Pertinent to this decision are the duties of certain Oxnard employees. a. The Receptionist at the front desk performs the customary duties of a receptionist. He greets the public, provides general information and simple instructions, and directs visitors to the proper staff person who conducts interviews and renders appropriate assistance. The receptionist had a job classification of Claims Development Clerk but, in fact, his duties are those of a full-time receptionist. b. Claims Representatives interview persons seeking Social Security benefits and assist them in filing claims. c. Claims Development Clerks (CD Clerks) act as assistants to Claims Representatives within a particular claims unit. Their grade level at Oxnard is GS-3 and GS-4. They type letters, answer phone calls, review files to make sure they are complete, keep track of files within a unit, and ensure that the work moves smoothly and that all clerical work is completed. In addition, clerks who are bilingual translate documents and act as interpreters for Spanish speaking claimants whose claims are being examined by non-Spanish speaking Claims Representatives. The position description for CD Clerks clearly states that they shall perform receptionist services "when required." d. Service Representatives handle post-entitlement actions under the Social Security Program, including address changes and medicare problems. They do not process initial claims or perform strictly clerical functions. Until the fall of 1979, there were five service representatives. One of them worked full-time in the reception area handling "quick" interviews. This permitted the remaining four to divide among them the balance of the interviews-- about 25 per day. 3. Past Practice Concerning Backup Receptionist Duties. a. Prior to December 10, 1979, the single Service Representative assigned to the front desk area also had responsibility for performing the duties of backup receptionist. These duties were to assist him during the morning rush from 9:00 a.m. to approximately 9:10 a.m., and to relieve him during his morning break, lunch period, and afternoon break. I find and conclude that a past practice exists whereby an employee with the position classification of Service Representative regularly performed, on a daily basis, the duties of backup receptionist. b. During the absence (on annual or sick leave) of the Receptionist or the Service Representative who acted as his backup, the normal practice prior to December 10 was to have another Service Representative fill in for the absentee. It sometimes became necessary, however, to ask other employees to fill in on a sporadic basis as receptionist or backup receptionist. Accordingly, this backup function has been performed on an occasional basis, usually for one day, by CD Clerks, by Claims Representatives and by the Operations Supervisor herself. The sporadic and infrequent use of CD Clerks is not seriously disputed and I note that CD Clerk Jennie Vargus never had been required to perform this function during the approximately 11 months of her employment prior to December 1979. It is also not disputed, and I find, that CD Clerks had not previously served as backup receptionist on a regular basis. 4. Respondent's Decision to Reassign the Backup Receptionist Duties to two CD Clerks. a. In the fall of 1979 at a unspecified date, one Service Representative quit but apparently this did not create any kind of crisis requiring immediate action by management. In late October, however, Service Representative Anna Harte received a promotion which was effective in early November but, because this would reduce the staff to only three Service Representatives, she agreed to stay an additional 30 days, ending on a date unspecified. On Friday afternoon, December 7, at a management meeting Eliana Gomez brought up the subject of providing adequate coverage for the receptionist and the front desk area since a Service Representative could no longer be spared for this duty. It was decided to take one CD Clerk from the Title 2 Unit and one from the Title 16 Unit, because this would be equitable and because both types of traffic come into the office and each Title would have a turn serving. Acting Branch Manager Knight was at this meeting. She credibly testified that she intended to tell the Union "as a matter of courtesy" about this decision but Union representative Casey was not at work and she did not wish to take it up with his alternate. /4/ 4. Implementation on December 10 of Respondent's Decision. a. On Monday morning, December 10, at approximately 8:15 a.m., Operations Supervisor Eliana Gomez informed CD Clerks Jennie Vargus and Martha Vega that they had been selected to perform backup receptionist duties. She did not advise them of the duration of this assignment. Vargus elected to assist in the morning rush and relieve at the morning break. Vega, who had only been employed there for a month, received the lunch period and afternoon break relief assignment. Neither Vargus nor Vega had ever performed this duty before. /5/ 5. Protest by the Union. a. Claims Representative Michael J. Casey, Union representative in the Oxnard office observed and heard Supervisor Gomez giving Vargus and Vega this new assignment because the situs of the conversation was not far from his desk. /6/ b. At approximately 8:20 a.m., Knight called Casey into her office for a consultation meeting on different subjects, including a reassignment request by Rick Lopez, Casey's alternate as Union representative. When Knight told Casey that the reassignment had not yet been approved, Casey replied that this could result in a grievance. Knight credibly testified that the mention of a possible grievance upset her and she forgot to mention the matter concerning backup receptionist. Following this meeting, Knight received a call that Lopez' reassignment was approved and she found Casey in the "quite" room and so informed him. Shortly thereafter at approximately 9:30 a.m., Casey came to Knight and complained that "You're using CDC's up at the front desk without consulting with me or informing me of it." /7/ He asked her to hold up so that he could determine the impact and submit proposals. She agreed to "hold off until you can get back to me." Casey thought that "hold off" meant cessation of the new assignment, but when he observed that Vargus and Vega continued to carry out their newly assigned duties, he concluded that management's decision was final and irrevocable. /8/ For this reason, Casey never did submit any proposals. 6. Impact a. The duration of the assignment was from December 10, 1979 until January 25, 1980 at which time two new employees were hired and one of them was assigned to perform the backup duties which Vargus and Vega had been performing. b. During this period, Vargus spent an average of 10 minutes assisting during the morning rush and an average of 26 minutes per day relieving during the morning break. /9/ Vega worked longer since the Receptionist took both a lunch period and an afternoon break. She spent at least 30 to 45 minutes per day on this task. c. Vargus and Vega both testified that the additional duty imposed upon them resulted in their having less time available to perform their principal duties as CD Clerks. Both agreed that their respective Claims Representatives were understanding and did not pressure them. Both the two employees were very much concerned about their having to do this additional duty and at the same time to keep up with their regular duties. Vargus testified that her own desk work was "slowed up" quite a bit. Vega testified that some work get "stacked up" if she didn't have time to get to it. d. The Claims Representatives for whom Vargus and Vega worked were not called as witnesses. Therefore, we do not have testimony from their immediate supervisors concerning the direct impact of this additional duty on their performance as individual employees, and the indirect impact, if any, on the supervisor, the unit, or other employees. Discussion and Conclusions of Law It is well settled case law that an agency has an obligation to notify the collective bargaining representative prior to making any change in conditions of employment so that the Union has a reasonable opportunity to request bargaining before institution of the change. /10/ It is not disputed, and I find, that Respondent failed to provide the Union with notice prior to its action on December 10. The principal issues to be resolved, however, are whether there was a change and, if so, whether it resulted in substantial and adverse impact on employees. The Respondent contends the General Counsel has failed to demonstrate that in fact there was a change of duties herein. Respondent's defense centers on two arguments: (1) that the position description for CD Clerks included the task of assisting the receptionist as required, and (2) that there was a past practice of using CD Clerks to act as backup receptionist. I find no merit to these defenses. The fact that a position description contains a statement that receptionist duties may be performed "when required" or "as required" is irrelevant to the question of whether or not an agency may exercise its authority to make work assignments unilaterally and without regard to its statutory obligation to bargain in good faith. Whether or not an agency may unilaterally exercise this authority-- without fear of committing an unfair labor practice-- depends upon whether its exercise of authority results in a change of employees' conditions of employment having a substantial impact adversely affecting employees. This is not to say that the presence in a position description of a particular duty or task is of no weight whatsoever for, on balance, its presence is more likely than not to assist an Agency in justifying its proposed action. Again, however, it depends upon the facts of each case. In the case before me, this particular fact is of no help to Respondent's case. Indeed, I note that both Vargus and the receptionist had the same position description and yet their duties were substantially different. The receptionist did not perform claims development clerical duties and Vargus had never performed receptionist duties. So much for position descriptions. I agree with Respondent that past practice is relevant and is particularly significant herein. However, I do not find that the past practice supports Respondent's position. The best that can be said is that the past practice demonstrates that some CD Clerks were occasionally used to assist the receptionist. Respondent's own witnesses proved the main argument urged by the General Counsel, namely, that prior to December 10, 1979, Service Representatives regularly performed the backup assignment and CD Clerks were only called upon to perform this function on a sporadic basis. I agree with the General Counsel that by expanding the duration of the backup assignment from sporadic to daily, Respondent has changed the duties of Claims Development Clerks. In my view, however, Respondent's action also constitutes a change of duties because, in reality, it has transferred from one job classification to another (from Service Representative to CD Clerk), the regular daily job of acting as a backup receptionist. Thus, backup duties regularly performed for an hour each day were lost by one classification and gained by another. /11/ Respondent further contends that the alleged change of duties did not result in substantial impact adversely affecting employees. I disagree. In evaluating the impact herein, it is not essential to view what happened with the benefit of hindsight by simply adding up the time spent (over an hour per day) and the duration of the assignment (seven weeks). Rather, I believe that attention should be directed to the events of December 10, the date of the alleged unfair labor practice. On that date, a supervisory official of Respondent informed Vargus and Vega that they each had a new duty duty to perform, namely backing up the receptionist. They were not told that this was an emergency assignment expected to only last a few days. /12/ They were not told this was a temporary assignment with a fixed termination date. They were not even told this was a permanent assignment. All they knew was they they had a new assignment for an indefinite duration. Likewise, they were not told why they were selected instead of others, or why the duties couldn't be shared by others in order to lessen the impact on each employee. Rather, management had made a decision and that was that. Finally, it should have been obvious to management that when an employee is told to spend time on a new assignment, this necessarily leaves less time for the other duties. No mention was made of whether management expected Vargus and Vega to absorb this additional work without sacrificing the quality and quantity of their principal duties or whether some adjustment was to be made with respect to management's expectations. Nor was anything said as to how this would impact on appraisals of their performance during this assignment of indefinite duration. All these matters about which nothing was said, were matters of genuine concern to these employees (and their Union) and were matters concerning their conditions of employment. Looking back, it should seem rather elementary that at the time Respondent decided to change the duties of Vargus and Vega, there were innumerable adverse effects which reasonably could be expected to occur, and the very likelihood of their occurrence should have served as a basis for concluding that the Union should be notified in advance, not as a matter of courtesy, but as a matter of right. Since management did not inform Vargus and Vega (or even the Union) that their assignment was not permanent, and absent any evidence indicated that it was temporary, it was not unreasonable for them to conclude that this was a permanent change of duties. Similarly, I find that it was not unreasonable for the Union to conclude that this permanent change of duties might have an adverse impact on employees it represented. /13/ Accordingly, I conclude that the change of duties on December 10, 1979 was sufficient to trigger an obligation to provide the Union with prior notice and to bargain upon request. If I am correct that Respondent had this obligation on December 10, then it seems rather unnecessary to conduct a post-decision analysis on the additional day-to-day impact thereafter to determine whether the already found adverse impact remained the same or changed in some manner as time wore on. /14/ Having found that Respondent instituted what appeared to be a permanent change of duties on December 10, 1979 without prior notice to the Union, I conclude that Respondent violated Section 7116(a)(1) and (5) of the Statute by failing to provide the Union with advance notice so that it had a reasonable opportunity to request bargaining about the impact and implementation of the decision. Inasmuch as the assignment eventually was terminated on January 25, 1980, I conclude that an affirmative bargaining order is not appropriate and so recommend. ORDER Pursuant to 5 U.S.C. 7118 and Section 2423.26 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg. 3482, 3510(1980), it is hereby ordered that the Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, shall: 1. Cease and desist from: (a) Unilaterally assigning Claims Development Clerks to assist and relieve the front-desk receptionist on a regular, permanent basis without first notifying the exclusive representative, the American Federation of Government Employees, AFL-CIO, and affording it an opportunity to bargain on the implementation and impact of the assignment. (b) In any like or related manner, interfering with, restraining, or coercing any employee in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. 2.