21:0735(92)CA - HHS, SSA, Baltimore, Md and AFGE -- 1986 FLRAdec CA
[ v21 p735 ]
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.