21:0735(92)CA - HHS, SSA, Baltimore, Md and AFGE -- 1986 FLRAdec CA



[ v21 p735 ]
21:0735(92)CA
The decision of the Authority follows:


 21 FLRA No. 92
 
 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-40172
 
                            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 practice alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  The General Counsel
 filed exceptions to the Judge's Decision and a brief in support thereof.
 
    Pursuant to Section 243.29 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.  /1/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 7-CA-40172 be, and it
 hereby is dismissed.
 
    Issued, Washington, D.C., May 12, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 7-CA-40172
 
    DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
 ADMINISTRATION, BALTIMORE, MARYLAND
    Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
    Charging Party
 
 
    Mr. Carl J. Clayton
    For the Respondent
 
    Mr. Reginald T. Huey
    For the Charging Party
 
    Nicholas J. Loburgio, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement Of The Case
 
    This decision concerns an amended unfair labor practice complaint
 issued by the Regional Director, Region Seven, Federal Labor Relations
 Authority, Denver, Colorado against the Department of Health and Human
 Services, Social Security Administration, Baltimore, Maryland
 (Respondent), based on a charge filed by the American Federation Of
 Government Employees, AFL-CIO, (Charging Party or Union). The complaint
 alleged, in substance, that Respondent violated sections 7116(a)(1) and
 (5) of the Federal Service Labor-Management Relations Statue, 5 U.S.C;
 Section 7101 et seq. (the Statute), on or about January 9, 1984 at its
 Mid-America Program Service Center, Kansas City, Missouri, by
 unilaterally changing the terms and conditions of unit employment.  The
 complaint alleges that Respondent implemented "You and the Program
 Service Center," No. 83-56, regarding the use of unit employee
 preferences for the selection of work locations, without first reaching
 agreement or impasse with the union.
 
    Respondent's answer admitted the jurisdictional allegations relating
 to the Respondent, Charging Party, and the charge, but denied any
 violation of the Statute.  Respondent contends that it implemented the
 change after discharging its obligation to bargin as provided by the
 Statute and the parties' collective bargaining agreement.
 
    A hearing was held in Kansas City, Missouri.  The Respondent,
 Charging Party, and the General Counsel were represented and afforded
 full opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  Base on the
 entire record, /2/ including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusions of law, and
 recommendations.
 
                             Findings of Fact
 
    In 1975, after notice to and concurrence by the Union, the
 Mid-America Program Service Center (MAMPSC), an integral part and agent
 of Respondent, issued a circular, "You and the Program Service Center,"
 No. 75-11, dated May 5, 1975, which established a policy and
 implementation procedures to be used by selecting officials in granting
 employee preferences for work location assignment when filling identical
 positions simultaneously at the two work locations in use at that time,
 i.e., the Federal Office Building (FOB) and Crown Center.  A few years
 later the Crown Center facility was abandoned and the functions
 previously performed there were moved to the Mid-Town Office Building
 (MTOB).  Notwithstanding this transfer, the Circular No. 75-11 policy
 and procedures remained in force.  The MTOB facility housing about 600
 of MAMPSC'S 2800 employees, is separate from the FOB and requires a
 shuttle bus trip of 15 to 20 minutes to reach. Unlike the FOB, the MTOB
 facility does not have cafeteria facilities, a credit union, nor
 close-in all-day parking.
 
    The procedure, which was implemented in 1975, established that when
 multiple employees are promoted to identical positions at the two work
 locations, which were to be filled simultaneously, the selecting
 official would rank the selectees by grade level and time-in-grade.
 Thereafter, using the employees' service computation date at the
 tie-breaker, if necessary, higher graded employees would be "given work
 location preference" first and thereafter other employees would receive
 their preference based upon their grade level and time-in-grade, if
 there were vacancies available at the work location selected by the
 employee.  If an employee in this latter category declined the only
 available work location, the employee did not receive the promotion.
 (G.C. Ex. 3).  Variations from this policy, for individual situations,
 were handled by agreement on a case-by-case basis by the Union and
 MAMPSC.  The work location assignment procedure was used from 5 to 10
 times per year between 1975 and 1984.
 
    MAMPSC is divided into branches, then selections, and then modules,
 with each module responsible for a particular section of the workload.
 It is necessary to maintain a balanced staff within each module in order
 to handle the assigned work.
 
    In early to mid-1983, the MAMPSC decided that it wanted to
 redistribute the workload in the 42 modules where unit employees worked
 and modify staffing and employee racial and sexual imbalances that had
 developed over a period of several years.  Donald Mings, director of
 MAMPSC, appointed Betty Cantrell, MAMPSC deputy director of operations,
 and Suzy Schmidt, MAMPSC assistant labor relations specialist, as his
 agents to notify the Union that he wanted to change the past practice
 and to bargain with the Union.  By letter dated July 21, 1983 MAMPSC
 advised the Union that effective July 27, 1983 it would "implement a
 modified method of work location assignments." Respondent's letter
 contained a proposed MAMPSC circular delineating the change in past
 practice, stating, inter alia, "Future building location assignments
 will be made on the basis of organizational needs, taking into
 consideration the preference and needs of individual employees." This
 proposed procedure would have eliminated the use of employee preference
 as the primary work location assignment criteria.  Respondent requested
 that Union counterproposals be submitted by July 22, 1983.  (G.C. Ex.
 4).
 
    On July 22, 1983, the Union responded to MAMPSC'S proposal and
 requested bargaining over "the procedures you will follow in carrying
 out the changes and the arrangements you will make for bargaining unit
 employees adversely affected." In addition, the Union proposed that no
 change be made in the current procedure and designated Reginald T. Huey,
 union executive vice-president, as the Union point of contact.  (G.C.
 Ex. 5).
 
    Huey met with Schmidt and Cantrell on five dates (July 28, August 3,
 4, 9, and 12, 1983), covering 12 workdays.  Proposals were exchanged on
 August 3, 4, and 12, a mediator from the Federal Mediation and
 Conciliation Service (FMCS) participated on August 9 and 12, 1983, at
 the Unions request.  During bargaining it was MAMPSC'S position that the
 Union proposals were nonnegotiable and interfered with management rights
 concerning the assignment of employees. (Tr. 28-29, 88, 102).  Huey
 expressed the Union's position that, notwithstanding MAMPSC'S management
 rights, the Union has a right to bargain pursuant to Section 7106(b) of
 the Statute.  At the August 12, 1983 bargaining session, the mediator
 advised the parties that they were at impasse.
 
    At no time during the bargaining, from July 28, 1983 through August
 12, 1983, did the management representatives tell the Union that,
 pursuant to the collective bargaining agreement, after ten bargaining
 sessions or ten workdays they would no longer bargain with the Union.
 It was normal procedure to extend bargaining beyond ten days to
 accomodate the mediator if he was not immediately available.
 
    Respondent advised the Union that it was going to implement, but
 before that was done it received a copy of the Union's request of August
 24, 1983 for the assistance of the Federal Services Impasses Panel
 (FSIP).  (G.C. Ex. 6).  FSIP acknowledged receipt of the request on
 September 1, 1983.  (G.C. Ex.7).  Respondent provided a position paper
 to FSIP on October 17, 1983.  Respondent asserted that the Union
 proposals, submitted in August 1983, were nonnegotiable as inconsistent
 with the agency's authority to assign employees or to assign work under
 sections 7106(a)(2)(A) and (B) of the Statute.  Respondent asked the
 Panel to decline the Union's request.
 
    As a result of Respondent's nonnegotiability declaration, Huey
 submitted a new proposal directly to the MAMPSC, with a copy to FSIP, on
 October 24, 1983.  The letter provided, in part, as follows:
 
          We are herein submitting the following proposal in order to
       resolve our current impasse.  This proposal constitutes Union
       Proposal No. 6:
 
          When simultaneously filling identical positions, at more than
       one building location, the following procedure will be used:
 
          (1) Each employee selected for promotion to one of the
       identical positions, will indicate his/her preference of building
       locations to be assigned.
 
          (2) Should the above procedure fail to produce the desired
       staffing need at each location, selected employees with the
       earliest service computation dates will be afforded a choice of
       available building locations.
 
    Huey followed up the letter with a telephone call to Schmidt in which
 he requested her opinion as to whether the proposal was negotiable.
 Schmidt replied that she couldn't tell as she didn't understand the
 proposal.  Huey explained what he had in mind.  On November 8, 1983,
 Huey requested a written response.  On November 9, 1983, respondent
 replied by memorandum as follows:
 
          On the afternoon of November 8, 1983, you asked to be furnished
       with a written response to the proposal you had submitted on
       October 24, 1983, and identified as Union Proposal No. 6.  This
       proposal in actuality is the seventh proposal the union has
       submitted on this issue.
 
          Article 4, Section 1 of the National Agreement specifies:
 
          "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 Impasse Panel for resolution under
       its rules."
 
          You were notified of the change in method of making building
       location assignments on July 21, 1983.  You requested negotiations
       on July 22, 1983, and the parties began bargaining on July 28,
       1983.  Proposals continued to be submitted by both parties
       throughout the bargaining and mediation sessions which ended on
       August 12, 1983.
 
          This matter is now before the Impasse Panel, and any
       correspondence concerning this case should be directed to the
       Panel.  It is inappropriate, and contrary to the contractual
       provision, to be submitting a written proposal to management while
       the issue is currently under the jurisdiction of the Panel.
 
    Respondent mailed a copy to the FSIP.  At the same time, Schmidt read
 the memorandum to the Union and the FSIP over the telephone.
 
    By letter dated November 10, 1983, the Union requested the FSIP to
 find its final proposal negotiable and in accordance with the Statute.
 (G.C. Ex.11).  On November 28, 1983 the FSIP declined jurisdiction.  The
 FSIP stated, in part, as follows:
 
          Because there are threshold questions concerning the Employer's
       obligation to bargain over the Union's proposals the Panel
       declines to assert jurisdiction until the questions have been
       resolved in an appropriate forum.  (G.C. Ex. 12).
 
    On December 27, 1983, Respondent notified the Union, inter alia, that
 it had fulfilled its bargaining obligation on the issue and would
 implement its last best offer made in August 1983 on January 9, 1984.
 (G.C. Ex. 13).
 
    In response to this announcement, Huey sent MAMPSC a letter dated
 January 5, 1984, but received January 6, 1984, stating that the October
 24, 1983 proposal was still on the table and requesting that MAMPSC
 either negotiate or submit the matter to arbitration.  (Tr. 113;  G.C.
 Ex. 14).
 
    On January 9, 1984, MAMPSC distributed 3000 copies of a new "You and
 the PSC" circular implementing the new procedure.  Initial printing
 arrangements for the circular had been made in mid-December.  The new
 policy changed the existing past practice by making organizational needs
 rather than employee preferences the primary consideration in work
 location assignments.  Respondent stated, "Although every reasonable
 effort will be made to accommodate individual needs and preferences,
 employees should realize when applying for a position which has
 vacancies in both buildings that there is a possibility that they may
 not be assigned to the building of their preference." (G.C. Ex. 15).
 
          BACKGROUND OF ARTICLE IV OF THE NATIONAL AGREEMENT /3/
 
    Article IV, Section 1, as applicable to the present case, states:
 
          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.
 
    Bargaining over the national agreement, of which Article IV is a
 part, encompassed an 18 month period from June 10, 1080 through and
 including December 21, 1981.  The bargaining process encompassed both
 general sessions between all team members from both sides and "side-bar"
 meetings between selected representatives of the teams.  The union
 negotiators in the side-bar meetings were not authorized to enter into
 agreement during these meetings and, in fact, brought back all
 Respondent proposals to the team as a whole for discussion.  This
 procedure was also used regarding Article IV.  It was the articulated
 position of the Union throughout the bargaining sessions, that it would
 not waive any of its statutory rights in the agreement.
 
    Arthur Johnson, AFGE, Local 1336 president, treasurer of the National
 Council of Social Security Payment Center Locals, and chief spokesperson
 for the consolidated AFGE unit was a negotiator (side-bar and general
 sessions) and signatory on the agreement.  He testified on behalf of the
 Union regarding bargaining history.  As to the quoted provision of the
 Article, supra, Respondent initially asked that there be no unreasonable
 delay in mid-term bargaining.  This was based upon the
 mediator/arbitrator's insistence that the parties shorten their
 bargaining process.  In response to Respondent's position, the Union in
 February or early March 1981, first proposed that mid-term bargaining
 not exceed 60 days. Subsequent bargaining occurred over Article IV,
 Section 1, as applicable herein, and the Union proposed the present "10
 working day" language.
 
    The cited portion of the agreement does not qualify the word "working
 day" with the adjective "consecutive" or other modifier.  The cited
 agreement article does not explain nor discuss what procedures the
 parties would use should FSIP fail or refuse to assert jurisdiction.
 There have been no agreements or arbitration decisions clarifying the
 meaning and intent cited section of the Article.  The cited provision of
 the Article is silent as to what would happen after ten days of
 bargaining occurred if a request to FSIP were not made.
 
    Donald M. Mings, director of the MAMPSC, was deputy chief negotiator
 for the management team.  He testified that Article IV was one of the
 last articles upon which agreement was reached.  Mings testified that
 the language of Article IV, Section 1 was worked out at a side-bar
 meeting between two representatives of management, Mings being one of
 them, and two representatives of the Union.  According to Mings, the
 intent of the parties at the side-bar meeting was that bargaining would
 be concluded within 10 days unless the parties mutually agreed to extend
 the time.  After 10 days, according to Mings, the parties were free to
 select other courses of action beyond negotiations.  The Article drafted
 at the side-bar meeting was agreed to by the whole bargaining team, but
 there was no discussion before the whole team of the meaning of "10
 working days."
 
    Reginald T. Huey, executive vice president of Local 1336 testified
 that in past negotiations the "10 working days" language has not been
 interpreted to be 10 consecutive days, but to encompass 10 working days
 of bargaining over a period of time.  In contrast to Huey, Suzy Schmidt,
 Respondent's assistant labor relations specialist, testified that in
 past negotiations the 10 day provision has started running at the first
 meeting between the parties and the 10 day time frame has been adhered
 to in the absence of mutual agreement to extend the time.
 
                Discussion, Conclusion, and Recommendations
 
    The General Counsel contends that Respondent violated Section
 7116(a)(1) and (5) of the Statute by unilaterally terminating the past
 practice of using employee preference for work location assignments when
 there existed a viable union bargaining proposal of October 24, 1983
 which Respondent had not addressed either through bargaining, a
 declaration of non-negotiability, or impasse procedure.  The General
 Counsel asserts that the proposal was clearly negotiable, and the Union
 did not waive its right to bargain through Article IV, Section 1 of the
 agreement or otherwise.
 
    Respondent defends on the basis that it implemented the change only
 after discharging its duty to bargain as expressed in the Statute and
 the parties' agreement.  Respondent contends, inter alia, that the
 Union's initial action shows surface bargaining and dilatory tactics;
 that after August 12, 1983 the parties were outside the 10 days provided
 for bargaining in Article 4, Section 1 of the agreement;  that the
 Union's October 24, 1983 proposal is non-negotiable;  that the Union's
 inaction after the FSIP decision justified Respondents' notice to
 implement;  and the Union's response to that notice was untimely.
 
    The threshold question is whether the Union's October 24, 1983
 proposal was negotiable under Section 7106 of the Statute since if the
 proposal was not negotiable Respondent was privileged to refuse to
 bargain with the Union.  Internal Revenue Service (District, Region,
 National Office Units) and National Treasury Employees Union, 16 FLRA
 No. 124, 16 FLRA 904 (1984).  As noted, the Union proposal provided:
 
          We are herein submitting the following proposal in order to
       resolve our current impasse.  This proposal constitutes Union
       Proposal No. 6:
 
          When simultaneously filling identical positions, at more than
       one building location, the following procedure will be used:
 
          (1) Each employee selected for promotion to one of the
       identical positions, will indicate his/her preference of building
       locations to be assigned.
 
          (2) Should the above procedure fail to produce the desired
       staffing need at each location, selected employees the earliest
       service computation dates will be afforded a choice of available
       building locations.
 
    Paragraph (2) is the only portion in dispute.  Mr. Reginald T. Huey,
 Union executive vice president, explained that under the proposal if
 management had staffing needs for identical positions at two building
 locations, it would first consider individual preferences in trying to
 fill the positions.  If this procedure failed to produce the desired
 staffing at each location, assignment would be made based on seniority
 with employees with seniority receiving their building preference.
 Those with less seniority could be assigned to the remaining positions.
 Mr. Huey acknowledged that if management had a particular need for the
 skills of an employee at one building location, but based on seniority
 the employee was entitled to go to another building, management would
 have to assign the employee based on his seniority and could not assign
 the employee where it considered his services to be needed the most.
 
    Respondent contends that the proposal violates 7106(a) of the
 Statute.  /4/ Respondent claims that identical positions do not equate
 with equal performance, and it must be able to place personnel in the
 locations where the respective abilities of the individual can be best
 utilized in order to have a balanced staff and equalize service to
 beneficiaries among the modules assigned to the different buildings.
 
    The right to assign employees which is reserved to management under
 Section 7106(a)(2)(A) of the Statute encompasses management's discretion
 to establish the qualifications and skills necessary to perform the
 duties generally assigned to the position as well as such job-related
 individual characteristics as judgment and reliability and to determine
 whether an employee meets those qualifications.  American Federation of
 Government Employees, ALF-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 1 FLRA No. 77, 2 FLRA 604 (1980),
 enforced sub. nom. Department of Defense v. Federal Labor Relations
 Authority, 659 F.2d. 1140,1148-49 (D.C. Cir. 1981) cert. denied sub.
 nom. AFGE v. FLRA, 455 U.S. 945, 102 S. Ct.