[ v26 p344 ]
26:0344(42)CA
The decision of the Authority follows:
26 FLRA No. 42
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 2-CA-60059
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority because the
General Counsel and the Charging Party (the Union) filed exceptions to
the attached Decision of the Administrative Law Judge. The complaint
alleged that the Department of Health and Human Services, Social
Security Administration (the Respondent) violated section 7116(a)(1) and
(5) of the Statute when it instituted a new program, the Social Security
Income Payment Review Redesign and refused to negotiate the impact and
implementation of this study on affected employees. For the reasons
stated below, we conclude that the Respondent violated section
7116(a)(1) and (5) of the Statute.
II. Background
The Union represents many of the Respondent's employees in a
nationwide consolidated unit. The Union's National Council of Field
Assessment Locals (AFGE FAO Council) has been delegated by the Union to
represent certain of the Respondent's employees, including those located
in various Office of Field Assessment (FAO) satellite offices situated
throughout the country. On September 12, 1985, the Respondent informed
the AFGE FAO Council that a new study, to be known as the Supplemental
Security Income Payment Review Redesign (the study), was going to be
implemented to review samples of the work produced in the Field
Assessment Offices between Ocrober 1985 and September 1986. On
September 26, 1985, the Union designated a spokesperson to negotiate
concerning the impact and implementation of the study on affected
employees. The Union also presented ground rules and substantive
negotiating proposals at that time. On October 17, 1985, the Respondent
took the position that the Union's substantive proposals were either
nonnegotiable, already addressed in the parties' nationwide collective
bargaining agreement, or outside the scope of bargaining. The
Respondent concluded that the Union's "failure to identify more than de
minimis impact resulting from (the study) has relieved us of any further
obligation on this issue." The Respondent then implemented the study
without any negotiations.
The study was implemented in the FAO's 15 satellite offices. The
Quality Review Analysts (QRAs) within those offices review benefits
being paid to claimants under the Social Security and Supplemental
Security Income (SSI) programs to ascertain whether beneficiaries are
receiving the correct amount of benefits. These reviews consist of
interviews with the claimants and the collection of information
regarding the claimants from such collateral sources as landlords,
insurance companies, and banks. The information obtained from these
reviews is recorded on various forms. The study implemented in October
1985 required the collection by the QRAs, in approximately 10 percent of
their cases, of additional information and the recordation of the
additional information on a new form. The parties disagree as to the
additional time added to any individual QRA's workload by the study.
The estimates range from the Respondent's estimate of 6 to 7 hours for
any QRA during the course of the year the study would be in effect, to
the 20 hours per year found by the Judge, to the General Counsel's
estimate of up to 130 hours per year. Nevertheless, the parties agree
that the study would require additional processing time by the QRAs,
whose performance requires cases to be completed in a timely fashion.
III. Administrative Law Judge's Decision
The Judge, applying the Authority's de minimis standard in effect at
that time, concluded that the Respondent did not violate section
7116(a)(1) and (5) of the Statute when it refused to negotiate over the
impact of the study. The Judge relied on the fact that the study, as
announced, was to be temporary and that the record evidence did not
demonstrate that there would be a substantial increase in the duties and
responsibilities of any particular QRA.
IV. Positions of the Parties
The General Counsel excepts to the Judge's conclusion that the
reasonably foreseeable adverse impact of the study's implementation on
the QRAs was no more than de minimis. The General Counsel argues, based
on the evidence presented at the hearing by the QRAs, that the impact of
the study on the QRAs would be six times greater (130 hours during the
course of the year) than that found by the Judge (20 hours during the
year). The General Counsel also argues that the impact of the study
would fall more heavily on some QRAs than on others because of the ways
cases are distributed and processed, and that the lack of clear
instructions or adequate training prior to the implementation of the
study would increase the time requirements for completing certain cases.
The General Counsel concludes that these factors could have a negative
impact on the evaluations of some QRAs even if the Respondent would not
charge employees with errors made because of the specific requirements
of the study.
V. Analysis
In Department of Health and Human Services, Social Security
Administration, 24 FLRA No. 42 (1986), issued after the Judge's decision
in this case, we reassessed and modified the de minimis standard
previously used to identify those changes in conditions of employment of
bargaining unit employees which require bargaining. We stated that in
order to determine whether a change requires bargaining, we will
carefully examine the pertinent facts and circumstances presented in
each case. We noted, among other things, that principal emphasis would
be placed on such general areas of consideration as the nature and
extent of the effect or reasonably foreseeable effect of the change on
conditions of employment of unit employees, and that equitable
considerations would also be taken into account in balancing the various
interests involved. We also stated that the number of affected
employees and the parties' bargaining history would be given limited
application, and that the size of the bargaining unit would no longer be
a factor. Applying the principles of Social Security Administration to
this case, we find that the study constituted a change in conditions of
employment of unit employees and that the reasonably foreseeable impact
of the change gave rise to a bargaining obligation. Accordingly, we
conclude that the Respondent's refusal to bargain concerning the impact
and implementation of the study constituted an unfair labor practice.
Unlike similar cases decided since Social Security Administration, in
this case the Respondent gave the Union adequate notice of its intention
to implement the change and the Union submitted bargaining proposals.
Rather than addressing the Union's proposals on their merits, however,
the Respondent summarily rejected them and unilaterally instituted the
study. While the Respondent stated in its October 14, 1985 rejection of
the Union's proposals that they were "either nonnegotiable, already
addressed in the National Agreement or outside the scope of bargaining,"
the Respondent provided no rationale for its assertions and the letter
concluded that the Union's failure to identify more than de minimis
impact resulting from the implementation of the study "has relieved us
of any further obligation on this issue."
We find that the reasonably foreseeable impact of implementation of
the study in this case on the affected employees elevated it to a level
where bargaining was appropriate. The study was to last for at least
one year and the possibility clearly existed that the changes would
become permanent. Moreover, the QRAs were required to collect and
record additional information in 10 percent of their cases. While the
QRAs apparently would not be adversely affected directly by any errors
made in the new data, QRAs are rated on the timeliness of their cases.
It was therefore reasonably foreseeable that the additional time
required by the study, compounded by such matters as the allegedly
inadequate preliminary training and the varying number of study cases
that might be assigned to any particular QRA, would affect their
performance on other cases, their performance evaluations and related
personnel actions. Those foreseeable effects gave rise to a duty to
bargain with the Union concerning the procedures to be utilized in the
study and appropriate arrangements for employees who might be adversely
affected by implementation of the study.
As the Union and the General Counsel point out, the Respondent had
been ordered by the Authority to negotiate concerning the implementation
of similar studies in the past. See, for example, Social Security
Administration, 16 FLRA 56 (1984). We recognize, as the Judge
indicates, that implementation of different studies might impose
different bargaining obligations. Nevertheless, the parties' collective
bargaining relationship would have been better served if the Respondent
had benefited from past experience and sought to resolve legitimate
concerns and differences promptly through the collective bargaining
process rather than by summary dismissal of the Union's concerns and
proposals, which led to more time consuming and costly proceedings
before the Authority.
VI. Conclusion
Based on the above analysis and consideration of the Judge's Decision
and the entire record in the case, including the parties' contentions,
we conclude that the Respondent violated section 7116(a)(1) and (5) of
the Statute by refusing to bargain with the Union concerning the
procedures to be utilized in the study and appropriate arrangements for
employees who might be adversely affected by implementation of the
study. Therefore, we have determined that the following remedial order
is appropriate:
ORDER
The Social Security Administration shall:
1. Cease and desist from:
(a) Implementing studies such as the Supplemental Security Income
Payment Review Redesign without first notifying the American Federation
of Government Employees, AFL-CIO, the exclusive representative of its
employees, and affording it the opportunity to bargain concerning the
procedures which management will observe in effecting such a study and
appropriate arrangements for employees adversely affected by such a
study.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, bargain with the American Federation of Government
Employees, AFL-CIO, concerning appropriate arrangements for employees
who may have been adversely affected by implementation of the
Supplemental Security Income Payment Review Redesign.
(b) Notify the American Federation of Government Employees, AFL-CIO
of any future studies such as Supplemental Security Income Payment
Review Redesign, and prior to implementation, afford it an opportunity
to bargain concerning the procedures which management will observe in
implementing such a study and appropriate arrangements for employees
adversely affected by such a study.
(c) Post at all of its Field Assessment Offices where unit employees
are located copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Commissioner and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that said
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with this Order.
Issued, Washington, D.C., March 20, 1987.
(s) Jerry L. Calhoun, Chairman
(s) Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement studies such as the Supplemental Security
Income Payment Review Redesign in the future without first notifying the
American Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, and affording it the opportunity to
bargain concerning the procedures which we will observe in effecting
such a study and appropriate arrangements for employees adversely
affected by such a study.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, bargain with the American Federation of
Government Employees, AFL-CIO concerning appropriate arrangements for
any employees who may have been adversely affected by our implementation
of the Supplemental Security Income Payment Review Redesign.
WE WILL notify the American Federation of Government Employees,
AFL-CIO of any future studies such as the Supplemental Security Income
Payment Review Redesign, and prior to implementation, afford it an
opportunity to bargain concerning the procedures which we will observe
in implementing such a study and appropriate arrangements for employees
adversely affected by such a study.
(Agency)
Dated: . . . By: . . . (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, New York 10278 and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-60059
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Mr. Richard Matthews
For the Respondent
Susan M. Roche
and
E. A. Jones, III, Esqs.
For the General Counsel
Mr. Earl Tucker
For the Charging Party
Before: ELI NASH, JR.
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on January 31,
1986 by the Regional Director for the Federal Labor Relations Authority,
New York, New York a hearing was held before the undersigned on March
10, 1986.
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It resulted from charges
filed on November 13, 1985 and Amended on December 11, 1985 by the
American Federation of Government Employees, AFL-CIO (herein called the
Union) against Department of Health and Human Services, Social Security
Administration (herein called Respondent).
The Complaint alleges that Respondent unilaterally changed bargaining
unit working conditions by implementing a new project or study in its
Field Assessment Offices (hereinafter called FAO or Satellite offices)
without affording the Union an opportunity to bargain over the impact
and implementation of the new project.
Respondent's Answer denies the commission of any unfair labor
practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
The Union, at all times material herein, has been the certified
exclusive representative of a consolidated nationwide unit of
approximately 80,000 of Respondent's employees. The National Council of
Field Assessment Locals (herein called the FAL Council or the Council)
has been delegated by the Union to represent certain of Respondent's
employees including those located in the various FOAs situated
throughout the country.
On September 12, 1985, Thomas N. Whitlock, Respondent's Chief of
Field Operations Branch, Division of Labor Relations, wrote to Earl
Tucker, President of the Council and informed him that a new project
entitled Supplemental Security Income Payment Review Redesign
(hereinafter called PRR or the redesign study) was going to be
implemented to cover samples sent to the various FAOs for the months of
October 1985 through September 1986. Around September 26, 1985, Tucker
wrote Donald Henry, Labor Relations Specialist, Division of Labor
Relations and requested bargaining over the PRR. Tucker also designated
Madeline Barbour who was employed in the New York FAO as the Union's
chief negotiator for the matter. Attached to Tucker's letter were
substantive proposals and the Union ground-rule proposals. Sometime
later around October 17, 1985, Whitlock wrote Barbour stating that
Respondent was refusing to bargain because it believed that the Union's
proposals identified adverse impact from the study that was no more than
de minimus (sic). No further correspondence was exchanged and no other
conversations over the PRR occurred between Respondent and the Union.
In collecting and gathering expanded information, to determine the
course of errors, Respondent developed a coding input form (herein
called SSA-501) to be completed along with the standard form already
used to input coding form (herein called SSA-500). This SSA-501 form
was to be completed on approximately 2000 cases of the ongoing SSI
payment workload. The 2000 SSA-501 cases were to be spread out over a
period of 1 year beginning in October 1985 through September 1986. The
Respondent originally planned to conduct train-the-trainer sessions in
Baltimore, Maryland in October of 1985. However, after determining that
there were no changes in the normal duties of the Quality Review Analyst
(hereinafter called QRA) employees, who were responsible for conducting
the special study and collecting the data needed to complete the SSA-501
form, Respondent decided not to conduct formal training. The Respondent
also determined that the instructions associated with the redesign
special study were sufficiently clear and that QRA employees should be
able to complete the new SSA-501 form using these instructions without
any type of formal training. Respondent conveyed this determination to
the Union's representative, Madeline Barbour, by letter dated October
17, 1985. In this same correspondence Respondent sought to address the
Union's proposals received by it in the letter from President Tucker.
As a matter of reviewing the Union's proposals as submitted on September
22, 1985, Respondent determined that it felt the Union failed to
identify any more than de minimis impact and concluded that it had no
further obligation to negotiate regarding the redesign study or the
issue of ground rules for negotiations. The study was implemented
through QRAs in Respondent's FAO Satellite Offices throughout the
country with the distribution of the October 1985 sample of cases. The
sample was received at various times by Satellite Offices in different
locations of the country from November 1985 through February 1986.
Fifteen (15) Satellite Offices Nationwide constitute the FAOs. These
offices are staffed by approximately 220 QRAs. Representatives from
four of these Satellite Offices testified that their offices were a fair
representation of other Satellite Offices throughout the country with
regard to working conditions and personnel practices and policies. Each
QRA has a basic responsibility to review benefits being paid to
claimants under the Social Security and Supplemental Security Income
(SSI) programs in order to ascertain whether beneficiaries are receiving
the correct amount of benefits. Every month the Satellite Offices
receive a sample of cases from the FAO Central Office in Baltimore,
Maryland. Each case is then assigned to a QRA who visits and interviews
claimants in their homes to determine if the information in the
claimants' file is accurate and merits the receipt of the level of
benefits that the claimant has been receiving.
While performing the interviews the QRA records the answers received
from the claimant on a 26 page questionnaire entitled "Supplemental
Security Income -- Quality Review Case Analysis" Form SSA-508
(hereinafter called 8508 or the questionnaire). Upon returning to the
Satellite Office the QRA records some of the data from the 8508 on
SSA-500. In addition to conducting the interview and completing the
questionnaire, the QRA must also contact various individuals,
institutions and government agencies to obtain "collateral source"
information in order to verify the information obtained from the
interviewed claimant. These collateral sources include landlords,
insurance companies, banks, and tax assessors.
With the implementation of the PRR the individual QRA was required to
complete an additional form for cases assigned as part of the study.
For the cases in each monthly sample which Central Office identified as
a part of the PRR sub-sample the QRA had to obtain additional
information on the questionnaire and complete the new form entitled
SSA-501. In order to complete a PRR case the QRA also had to obtain
additional information from collateral sources. Now when a QRA is
completing the questionnaire for a PRR case he or she must seek
additional data such as whether a citizen is naturalized, country of
birth, trips out of the United States, number of years in United States,
location of residences in last four years, amount of rent paid, number
in household, age of each household member and relationship to the
landlord, value of all cars, value of liquid assets and other income and
cash on hand. This additional information requires contacting landlords
or relatives for locations of previous residents, researching the listed
value of all cars, verifying the value of all insurance policies with
insurance companies if the claimant cannot prove face value and
establishing the value of housing subsidies. Normally, only the first
three lines are completed on the one-page SSA-500. The SSA-501 has
three pages which adds three additional sections that must be completed.
The total time necessary to complete a normal case without any
payment errors from the regular monthly sample may range from four hours
to one-and-one-a half days. This completion time includes interviewing
the claimant, completing the questionnaire and the SSA-500, as well as
contacting all necessary collateral sources. Cases may take two to
three weeks to complete if additional information from collateral
sources is not readily available. If a case has a payment error the
total time for completing a regular sample may be increased to a range
from one day to five days. When a case contains a payment error the QRA
must do additional coding, obtain additional information from the
claimant and/or collateral sources and provide additional information on
the coding forms. The record indicates an increase in coding time and
an increase in verification time is required to complete the SSA-501.
However, probably no more than 2 or 3 hours total is added to complete a
non-error case. Respondent's estimate, of how long it will take to
process the PRR cases differs from that of the QRAs. However,
Respondent's projection is based on only 62 PRR cases which have been
completed so far, out of an expected total sample of 2000 cases. The
estimates of the QRAs are based on their actual experience. Although
part of the regular QRA job duties to conduct studies, the information
for such studies is normally gathered from the SSA-500 and no additional
questions are asked nor additional coding required.
Along with the requirement that the SSA-501 be completed in addition
to the SSA-500 for the PRR cases, the processing time is also increased
since a QRA may be unfamiliar with the new instruction manual for the
SSA-501; the manual is allegedly confusing and difficult to follow in
certain parts; the instructions for completing the SSA-501 are not
self-contained in the manual and the QRA must refer to other
instructional material; the SSA-501 is not completed on a regular basis
so the QRAs are dependent on the complicated manual throughout the
entire time the study continues; if the QRAs do not understand the
entire time the study continues; if the QRAs do not understand the
manual they must then ask the supervisor.
When cases are sent from Central Office the FAO does not know which
cases in the PRR sub-sample have payment errors in them. Consequently
an individual QRA may have a heavier burden of completing the more
difficult PRR cases. This situation may also be complicated where some
QRAs work rural areas which require additional travel time thereby
making it impossible to know whether a case contained an error until it
is assigned. Respondent claimed that the number of payment-error cases
assigned to each QRA evened itself out over the period of a year.
However, QRAs may have some control over how many payment errors are
discovered in a case by simply asking more probing questions. In the
past QRAs have been encouraged to find as many payment errors as
possible. Also the statistics Respondent uses to predict the assignment
of payment error cases only reflect errors in excess of $5.00. However,
any payment error must be processed in the same manner on the SSA-501 no
matter how small the monetary amount of the error.
The evidence shows that from November 1985 through February 1986
various Satellite Offices provided training on the new study and the use
of the SSA-501. The training, although lasting only a few hours in most
locations, was conducted either by QRAs or supervisors in their
respective Satellite Offices. There was no national training for the
trainers and apparently most of the trainers taught themselves from the
instructional manuals that QRAs now use to process the PRR cases. In
the Detroit Satellite Office for instance, the QRAs were given PRR cases
prior to receiving training, which in some instances required the QRA to
return to the claimant for additional information. A document entitled
"SSI Payment System Redesign Summary of Changes" was distributed during
the training. This 26-page document itemized numerous changes in coding
procedures and other additional work required as a result of the study.
The record discloses that QRAs have performance standards which
require them to complete 80 percent of their cases within six weeks and
100 percent within eight weeks. Several of the Satellite Offices have
quantifiable goals and timetables by which the QRAs are evaluated on
timeliness. If the QRA does not meet these goals he or she may receive
a lower evaluation or fail to receive a higher rating. This may cause
an individual QRA to fail to be promoted, miss receiving a with-in grade
increase, or be terminated before other employees in the event a
reduction-in-force takes place. Because of the confusion over the
implementation of the PRR, the complicated coding instructions, as well
as the additional work required, the QRAs are fearful that the new study
would have an adverse affect on their annual evaluations because it
might cause a QRA to receive a lower rating if he or she failed to meet
the goals for work completed in their office. Respondent, however
claims that the QRAs will not be charged for errors they make on the
SSA-501 for the fiscal year the study is in place.
Another element on the QRA performance standard is accuracy and
analytical ability. QRAs are further bothered that the confusion over
the implementation of the PRR study would cause them to make mistakes in
coding or in their analysis in the SSA-501 or in another facet of their
work. Despite what appears to be an additional work increase in
processing time, and confusion over the instructions for the SSA-501
coding there have been no changes in the performance standards or
Satellite Offices' performance goals which reflect the implementation of
the PRR study.
Respondent claims that the time spent by the QRA coding the SSA-501
is insignificant in that the study involves only the coding of SSA-501
in 2000 uses in the existing and ongoing SSI Payment Sample workload
consisting of about 16,000 cases. It maintains that the 2000 cases if
divided by the 10 regions of the FAO would mean that the individual FAO
would receive only 200 cases and when this is divided by the 200
approximate QRA employees nationwide could mean only about 10 SSA-501
redesign cases within the 1 year study period. In terms of its own
projection, Respondent sees this as meaning only an additional 6 or 7
hours per year work by each QRA during the year of the study. Going
further Respondent asserts that a maximum using 20 cases per year per
QRA and 1 hour for each of the cases only a total of 20 hours out of a
2080 work year or less than 1 percent of the employees overall time
would be consumed by the SSA-501.
With respect to appraisals Respondent sought to establish that lack
of appraisal of performance based on errors on the SSA-501. In fact,
Madeline Barbour testified that no errors in coding on the new SSA-501
"would be held against us for a year." Considering that the study was to
last for only a year it is seemingly clear that errors forming part of a
QRA's appraisal would indeed not be held against them during the study
period of one year.
The parties have bargained 15 to 20 times over the impact and
implementation of similar studies. As the General Counsel points out,
the Authority has already ordered bargaining over a study which was
somewhat similar in Social Security Administration, 16 FLRA 56 (1984).
Conclusions
As already noted the General Counsel feels that the instant matter is
controlled by Social Security, supra since that case involved the
implementation of a pilot study similar to the study found herein.
The Respondent urges not only was there no change in conditions of
employment since the QRAs were performing assigned duties which require
that they conduct such studies, but that if there were actually changes
the impact was no more than de minimis.
In Social Security, supra, the case relied on by the General Counsel,
Judge Naimark found significant changes in the job duties of unit
employees. He found that the study added considerably more time to
processing a case; that delays occasioned by the addition of time
required to handle the matter affected unit employee "statistics"
prompting concern about employee ratings; and, that one employees' case
assignment load increased from 12-16 cases to 26 cases per 4-6 week
period. In those circumstances he concluded that the new forms in that
study sufficiently impacted upon unit employees and that bargaining on
impact and implementation was required.
Since that decision the Authority has established criteria in cases
where the issue of whether a 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.
See Department of Health and Human Services, Social Security
Administration, Region V, Chicago, Illinois, 19 FLRA No. 101, 19 FLRA
827 (1985); Department of the Treasury, U.S. Customs Service, 19 FLRA
No. 128, 19 FLRA 1155 (1985); United States Department of the Treasury,
Internal Revenue Service, Chicago, Illinois, 20 FLRA No. 6, 20 FLRA 46
(1985); Bureau of Field Operations, Social Security Administration, San
Francisco, California, 20 FLRA No. 9, 20 FLRA 80 (1985); Federal
Aviation Administration, Washington, D.C.; 20 FLRA No. 11, 20 FLRA 112
(1985); Department of Housing and Urban Development, Columbia Area
Office, Columbia, South Carolina, 20 FLRA No. 31, 20 FLRA 233 (1985);
U.S. Department of Housing and Urban Development, Washington, D.C. Area
Office, 20 FLRA No. 38, 20 FLRA 374 (1985); Federal Aviation
Administration, 20 FLRA 45, 20 FLRA 430 (1985); Department of
Transportation, Federal Aviation Administration, Washington, D.C., 20
FLRA No. 52, 20 FLRA 474 (1985); Environmental Protection Agency and
Environmental Protection Agency, Region II, 20 FLRA No. 76, 20FLRA 644
(1985); Social Security Administration, Baltimore, Maryland and Office
of Hearings and Appeals, Region II (New York, New York) and Office of
Hearings and Appeals (Syracuse and Buffalo, New York, 21 FLRA No. 72, 21
FLRA 546 (1986).
The 5 factors set out by the Authority are: 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; 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. The Authority also 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 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. Here Respondent exercised
a management right when assigning studies to its QRAs. Therefore, the
nature and degree of impact must be considered under criteria
established by the Authority.
The Authority has made it clear that it will look to the totality of
the facts and circumstances of cases where a de minimis issue is
involved. In applying the listed factors to the instant case it is
unmistakable that the size of the bargaining unit is immaterial since
all of the employees in the QRA category employed by Respondent are
involved. Thus, some approximate 220 employees have the potential of an
adverse impact occurring as a result of the alleged change.
Furthermore, the bargaining history of this particular subject indicates
negotiations on this precise matter have taken place on several
different occasions. As already noted the Authority in Social Security,
supra, found a similar study bargainable. Thus, there is a bargaining
history by which these matters have been considered. I therefore reject
Respondent's claim that because the redesign study herein was already a
part of the duties of the QRA no change had occurred. I cannot ignore,
however, evidence that the instant change was temporary and at the
conclusion of the one year study it might not be put into place; or,
the extent of the change in work duties. In the latter regard, the
record evidence does not demonstrate a substantial increase in duties or
responsibilities of any particular QRA over the one year period that the
study is to be in place. This case is therefore, distinguishable from
the Social Security case, supra where it was found that the change
involved sufficient impact on unit employees to require bargaining.
Unlike that case, examination of the instant record does not reveal any
substantial change in a QRA's case assignments which would create
concern about performance ratings. Quite the opposite, it shows no
significant increase in travel or interview time is required; and, it
fails to establish any substantial increase is required in coding the
SSA-501 or in verification time. In short, it indicates no substantial
changes in employee work duties which would affect their performance
ratings. Nor does the evidence disclose that errors committed while
processing PRR cases would be counted against QRAs so as to have any
effect on their performance ratings. In fact the evidence confirms that
the Union's representative was aware that errors, during this one year
period, the study is in place, would not be counted against the QRA,
thereby leaving no impact in that regard. Furthermore, the evidence
shows that on the average no more than 20 hours or considerably less
than 1 percent of a QRA's work year would be involved with this study.
That percentage could hardly be deemed a change with sufficient impact
on job duties as was found in the case relied on by the General Counsel.
Social Security, supra. Consequently, I am unable to find that the
extent of the change in work duties was more than minimal. Accordingly,
based on the totality of the facts and circumstances present in this
case, it is found that the implementation of the Supplemental Security
Income SSI Payment Review Redesign study did not cause a more than de
minimis adverse impact on bargaining unit QRAs, thereby creating an
obligation on the part of Respondent to bargain over the impact and
implementation of the study before its implementation.
In light of the above, it is found that Respondent was under no
obligation to notify the Union and afford it an opportunity to request
bargaining pursuant to section 7106(b)(2) and (3), and its refusal to
negotiate herein was not violative of section 7116(a)(1) and (5) of the
Statute. It is therefore, recommended that the Authority adopt the
following:
ORDER
IT IS HEREBY ORDERED that the Complaint in Case No. 2-CA-60059, be,
and hereby is, dismissed.
(s) ELI NASH, JR.
Administrative Law Judge
Dated: July 15, 1986
Washington, D.C.