26:0814(97)CA - HHS, Region II, New York, N.Y., and NTEU and NTEU, Chapter 218 -- 1987 FLRAdec CA
[ v26 p814 ]
The decision of the Authority follows:
26 FLRA No. 97 UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION II NEW YORK, NEW YORK Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 218 Charging Party CASE NO. 2-CA-60162 DECISION AND ORDER The Administrative Law Judge issued the attached decision in the above entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices as alleged in the complaint, and recommending that the Respondent be ordered to cease and desist from those practices and to take certain affirmative actions. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions. 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), we have reviewed the rulings of the Judge at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision, the exceptions, opposition and the entire record, we adopt the Judge's findings and conclusions. We also adopt the Judge's recommended remedial Order and shall further order the Respondent to bargain on request with the Charging Party concerning timekeeping procedures. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the United States Department of Health and Human Services, Region II, New York, New York shall: 1. Cease and desist from: (a) Failing and refusing to negotiate with National Treasury Employees Union, Chapter 218, the authorized collective bargaining representative of employees in the Office for Civil Rights, Region II, with regard to changes in timekeeping procedures for unit employees. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request, bargain with National Treasury Employees Union, Chapter 218, concerning the change in timekeeping procedures for unit employees instituted in January 1986. (b) Post at its New York Regional Office 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 Regional Director 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 such notices are not altered, defaced or covered by any other material. (c) 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 therewith. Issued, Washington, D.C., April 30, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean, McKee, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to negotiate with National Treasury Employees Union, Chapter 218, the authorized bargaining representative of employees in the Office for Civil Rights, Region II, with regard to changing timekeeping procedures for those employees. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute. WE WILL, upon request, bargain with National Treasury Employees Union, Chapter 218, the authorized collective bargaining representative of employees in the Office for Civil Rights, Region II, concerning the change in timekeeping procedures instituted in January 1986. (Agency/Activity) Dated: . . . By: . . . (Signature) 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region II, 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-60162 UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION II, NEW YORK, NEW YORK Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 218 Charging Party Stephen A. Sunshine, Esq. and Andrew Rudyk, Esq. on the supplemental brief For the Respondent Todd C. Park, Esq. with Philip J. Kellett, Esq. and Myrna Ocasio, Esq. on the briefs For the Charging Party Susan M. Roche, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. section 7101 et. seq. Upon an unfair labor practice charge filed by the above captioned Charging Party against the above captioned Respondent, the General Counsel of the Authority, by the Regional Director for Region II, issued a Complaint and Notice of Hearing alleging Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate with the Charging Party concerning a change in employee sign-in/sign-out procedures at Respondent's New York Office for Civil Rights. A hearing on the Complaint was conducted in New York, New York at which all parties were represented by counsel and afforded full opprotunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs and supplemental briefs were filed by all parties and have been carefully considered. Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein the National Treasury Employees Union (NTEU) has been the exclusive collective bargaining representative of various of Respondent's employees including employees located in Respondent's New York Regional Office working in its Office for Civil Rights. NTEU Chapter 218 (herein referred to as the Union) has at all material times been a constituent entity within NTEU and an agent of NTEU acting on its behalf in representing Respondent's New York Regional Office employees. At least since sometime in 1982 employees in Respondent's New York Office for Civil Rights have worked on a flextime basis arriving between 7:00-9:30 a.m. and leaving work between 3:30-6:00 p.m. From 1982 until April 1984 these employees were required to sign in and sign out sequentially each day on a time sheet which was kept approximately 50 feet from the office entrance door on a table next to the secretary to the Regional Manager of the Office for Civil Rights, David A. Coronado. At the end of each work day the time sheet was given to the office timekeeper for recording. Regional Manager Coronado was assigned a training detail in October 1983. When he left the Office for Civil Rights for the training detail Walter Patterson was made Acting Regional Manager until April 1984 during which time Patterson retained the timekeeping system then in effect. In April 1984 Patterson was replaced by Carmen Rockwell as Acting Regional Manager. Rockwell changed the timekeeping procedure by allowing all employees to keep a daily attendance record at their desks, indicating the time in and time out each day for a two week period and then turning over the attendance records to the supervisor for review and approval. The supervisor would then give the attendance records to the timekeeper for transcription onto timecards. In July 1984 Coronado returned to the office for two and one-half weeks and discovered Rockwell had implemented a different timekeeping system. /1/ Accordingly, on August 3 as he was about to return to his detail, Coronado sent a memorandum to Rockwell regarding the matter, stating, in relevant part: /2/ "While reviewing the time records I immediately became aware that the sign-in method used by the rest of the Department in the Region was no longer being used in OCR. "After further research, I was able to discover some documentation on the implementation of the change, but nothing giving a rationale for changing a system that functioned perfectly well, which complied with OPM requirements for a time accounting method and which kept us in conformance with the rest of the Department in the Region on an important labor-relations matter. /3/ Neither was I able to determine why you seemingly ignored the advice of the Region's Labor Relations staff, whom I have always found to be quite knowledgeable and helpful and whose advice always turned out to be in our best interest. "I would strongly urge that you follow the advice given you by Labor Relations and return immediately to the sign-in system that was utilized here when you arrived. Again, the system has always worked well. Also, since employees are required to sign in sequentially based on their time of arrival, it does provide the "affirmative evidence" required by OPM in 5 CFR 610.404, /4/ while the individual sign-in system that exists here now clearly does not, since each employee turns in this sheet on a biweekly basis and since the time sheets really constitute nothing more than self-serving statements which, as you know, under the rules of evidence, can never be accepted as evidence. Furthermore, OCR is a part of the Department and to the extent possible, we should do everything we can to work with the other OP DIVS and STAFF DIVS in the Region to demonstrate that we are, especially in such important areas as labor relations. Finally, the Labor Relations staff in this region is excellent and they have served us well and I can not imagine a situation in which they would give us advice that would ever prove anything but beneficial to us. Asking for their advice after the fact and then ignoring it once it has been given without even determining their rationale for having given it, is not sound practice and not at all like you . . ." The memorandum indicated that a copy was sent to Coronado's supervisor Nathan Dick, Director of the Office for Program Operations for the Office for Civil Rights and Deputy Director of the Office for Civil Rights. Regional Manager Corando returned from his detail on September 6, 1985 and found Rockwell had not complied with his memorandum and the timekeeping method she implemented was still in effect. According to Coronado, since he felt the Rockwell system did not comply with the requirements of 5 CFR 610.404, on December 12, 1985 he issued the following memorandum to his staff: "Effective January 2, 1986, all employees, including supervisory staff, will be required to sign in and out on a central sign in sheet on a daily basis as a means for recording the time of their arrival and departure from work. The system of individuals monitoring their own time and attendance records and turning them into supervisors on a biweekly basis, will no longer be valid. "This return to the system used nationwide by OCR and by our sister Agencies in the Region, will bring us into conformance with OPM regulations. It will also make it easier for the timekeeper to post time and attendance on a daily basis, as she is required to do by Departmental regulations. "The sign in sheet will be located on the small cabinet immediately to the left of Ms. Cropper's desk." Coronado's memorandum indicated a copy was sent to Shop Steward Khaleel. Although Khaleel testified he did not receive a copy of the memorandum from Coronado, /5/ he nevertheness was shown a copy of the document by a unit employee on December 12. By letter dated December 23, 1985, Khaleel made a demand to Coronado that Respondent bargain with the Union on the matter. The letter read: "Your memo of December 12 has been brought to my attention. My name appears as a c.c. on the copy in my possession; however, I have yet to receive such a c.c. through official channels. "The Union invokes its rights under Article 61 of the negotiated agreement to negotiate the proposed change in the sign in/out procedure. Until such time that negotiations have been completed, the proposed change will not be considered as implemented per provisions of Article 61. "Please contact me at extension 2672 in order to arrange and appropriate negotiation schedule." By memorandum to Khaleel dated December 30, Coronado refused to bargain on the matter, stating: "By your memo to me dated December 23, 1985 you requested negotiations on the signing of sign in/out sheets. "As noted in my December 12 memo, the change involves only that all employees sign a single sheet rather than individual sheets. The nature of employees' work remained the same. The requirement to sign in and out did not change. The mechanics of signing in or out did not change. The time needed to sign in or out did not change in any measurable way. Therefore, the change in sign in/out sheets is de minimus (sic) and does not give rise to duty to bargain over impact and implementation." The change in employee timekeeping as set forth in Coronado's December 12 memorandum was put into effect on January 2, 1986 without further communication with the Union. Other Regulations. OPM Bulletin No. 610.35 (item 12 and 13) "12. Because employees working flexible schedules will arrive and depart at varying times, it is important that a system exist within each agency for providing accountability for hours worked to ensure the credibility of the program from the perspective of the employees, management, and the public. "13. Agencies are advised to review each program to determine the most appropriate time accounting system. One procedure that is recommended for consideration by agencies is seriatim, or sequential, sign-in/sign-out sheets. Under seriatim timesheets, each employee records his or her time of arrival and, separately, departure in order, one following the other. This seriatim procedure is a simple method of assuring accountability for those employees that work under flexitime schedules." GAO Policies and Procedures Manual, Title 6, (selected portions of section 17.2 and 17.3) Section 17.2 "For each civilian employee, a record of time in pay and nonpay status or piecework completed shall be maintained daily by one of the following time accounting methods: 1. Time and attendance recording by designated employees (time and attendance clerks) who take no part in preparing the payroll or distributing the paychecks. 2. Electromechanical devices, e.g., time clocks. 3. Sign-in/sign-out sheets showing times of arrival and departure. If the sign-in/sign-out method is used, it must be seriatim recording. Under the seriatim sign-in/sign-out method, employees sign their name and record their time of arrival in order, one right after the other. When departing from work, employees again sign their name and record their time of departure in order, one right after the other. Sign-in/sign-out sheets with the employees name preprinted on the sheet are not acceptable. "In all cases adequate surveillance shall be maintained to assure proper and accurate time accounting. Also, adequate steps must be taken to assure that time and attendance data are accurately reflected on the time and attendance reports sent to the payroll office." Section 17.3 "For agencies whose employees are on a flexible or compressed work schedule, there are several time accounting methods that, if properly administered and controlled, will satisfy the requirements of subsection 17.2. Use of one of the following methods is recommended to meet those requirements: time and attendance clerks and supervisors who closely monitor arrival and departure, sign-in/sign-out sheets by time of arrival and departure (seriatim time accounting), time clocks or mini-computers with plastic employee identification cards and turnstiles. Agencies have the latitude to select the method that suits them best. However, if the conventional time and attendance recording method by a timekeeper is selected in a flexible or compressed work schedule environment, stricter management control must be implemented to insure coverage throughout the day as described in the preceeding (sic) paragraph. In audits and reviews of payroll systems, auditors will evaluate the method selected to assure proper usage." Discussion and Conclusions Counsel for the General Counsel contends Respondent violated the Statute by failing to notify the Union about its intention to change timekeeping procedures and failing and refusing to bargain with the Union on the change. Counsel for Respondent contends Respondent was under no obligation to negotiate with the Union over the change since timekeeping procedures are specifically provided for by Federal statute and therefore not within Respondent's duty to bargain. /6/ Respondent essentially argues that it was privileged to effectuate the change without bargaining with the Union since the timekeeping procedure existing immediately prior to the change was not in compliance with law because, in its view, that system did not constitute a time-accounting method which would provide affirmative evidence that each employee subject to flextime worked the proper number of hours as required by 5 CFR section 610.404, supra. In his brief counsel for Respondent, relying on Office of Personnel Management (OPM) Federal Personnel Manual Bulletin No. 610.35, items 12 and 13 (August 19, 1982) and General Accounting Office (GAO) Policies and Procedures Manual, Title 6, sections 17.2 and 17.3 (dated December 30, 1982), asserts section 610.404 requires that sign-in/sign-out time recording be in the form of a single sheet seriatim recording. Counsel cites the OPM and GAO provisions in his brief, although neither was raised, relied upon or even mentioned at the hearing, thus depriving counsel for the General Counsel or counsel for the Union the opportunity to address the applicability of these documents to the situation herein. In order to provide the parties an opprotunity to address such argument, on November 17, 1986 I issued an Order permitting the filing of supplemental briefs limited to the affect of the above cited regulations on the issues herein including whether such regulations were in effect at material times and the impact they may have upon 5 CRF 610.404 and upon granting a status quo ante remedy if a violation of the Statute should be ultimately determined to have occurred. Thereafter all parties filed supplemental briefs. With regard to the question of notice to the Union, although Khaleel did not receive a personal copy of Regional Manager Coronado's December 12, 1985 memorandum announcing changing the system of employee time recording on January 2, 1986 back to the pre-April 1984 procedure, Khaleel was shown a copy of the announcement on December 12 by a unit employee. Thereafter on December 23 Khaleel made a timely request to bargain on the matter. In these circumstances I conclude no violation of section 7116(a) (1) and (5) regarding failure to provide timely and adequate notice of the change has been established. See U.S. Department of Labor, Occupational Safety and Health Administration, 20 FLRA 148 (1985) and Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA 1054 (1985) citing United States Air Force v. FLRA, 681 F.2d 466 (6th Cir. 1982). Nevertheless, I conclude Respondent violated the Statute when it refused to negotiage on the change of employee timekeeping. Regional Manager Coronado's refusal of December 30, 1985 was based upon his evaluation that the change involved had only a de minimis impact on employees and accordingly no obligation to bargain existed. However, the Authority has previously found that management policies regarding recording of employee time and attendance constitutes a condition of employment the substance of which is a negotiable matter. American Federation of Government Employees, AFL-CIO, Local 1603 and Department of the Navy, Navy Commissary Store, Patuxent River, Maryland, 16 FLRA 96 (1984) and Planners, Estimators and Progressmen Association, Local No. 8 and Department of the Navy , Charleston Naval Shipyard, Charleston, South Carolina, 13 FLRA 455 (1983). The Authority has also held that where, as here, the decision to make a change was itself negotiable, the extent of the impact of the change in conditions of employment on unit employees is not relevant. Department of Defense Dependents Schools, Mediterranean Region (Madrid, Spain); and Zaragoza High School, (Zaragoza, Spain), 19 FLRA 395 (1985) and U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, 19 FLRA 290 (1985). Thus Respondent was obligated to bargain with the Union before changing the timekeeping system, a condition of employment in effect for 18 months under Acting Regional Manager Rockwell and for 3 months under Regional Manager Coronado, unless somehow otherwise privileged to take such unilateral action. Respondent argues that the system in effect prior to January 1986 was not in compliance with law and accordingly it was compelled to change the system and the procedure it implemented did comply with law. Assuming arguendo that the timekeeping system instituted by Acting Regional Manager Rockwell was not in compliance with law, this did not privilege Coronado to simply revert to the prior timekeeping system without bargaining with the Union. 5 CFR section 610.404 merely requires that the time-accounting method established will provide "affirmative evidence" of hours worked. Coronado's system was not the only timekeeping procedures which could have conceivably complied with these regulations. It is well settled that to the extent that an agency has discretion regarding a condition of employment, that matter is whether the agency's duty to bargain. National Treasury Employees Union and Internal Revenue Service, 21 FLRA 730 (1986); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986); and Boston District Recruiting Command, 15 FLRA 720 (1984). It is entirely possible that if given the opportunity to negotiate, the Union might have proposed some system other than the Rockwell procedure or the matter ultimately resolved by adoption of a system other than Coronado's sequential sign-in procedure. Indeed, even the regulations referred to by Respondent do not compel use of only the seriatim sign-in, sign-out system. Thus, OPM Bulletin No. 610.35, items 12 and 13, only recommends the use of a seriatim sheet, supra. /7/ The GAO Policies and Procedures Manual, Title 6 sections 17.2 and 17.3, clearly indicates that any of several time accounting methods are acceptable and although various procedures are recommended, the regulation specifically provides for agency latitude in selecting which method to adopt, supra. In my view the question of which time recording method to use was negotiable within the limits of the GAO regulation and Coronado was not compelled to put into effect his preference without regard to the Union's right to negotiate before the change was made. However, when Coronado refused to bargain on the matter on December 30 the Union was not given an opportunity to make a proposal prior to the change being effectuated. Accordingly, I conclude Respondent's refusal to negotiate with the Union on changing employee timekeeping procedures and the unilateral implementation of the seriatim system on January 24, 1986 violated section 7116(a)(1) and (5) of the Statute. /8/ As to a remedy, I shall not require Respondent to restore the status quo ante since to do so would place into effect a system of time recording which on its face would not comply with the provisions of GAO Policies and Procedures Manual, Title 6, section 17.2, a Government-wide rule or regulation within the meaning of the Statute. /9/ Cf. Department of Transportation, Federal Aviation Administration, Washington, D.C., 20 FLRA 486 (1985). Accordingly, in view of the entire foregoing I recommend the Authority issue the following: ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that United States Department of Health and Human Services, Region II, New York, New York shall: 1. Cease and desist from: (a) Failing and refusing to negotiate with National Treasury Employees Union, Chapter 218, the employees authorized collective bargaining representative, with regard to changing unit employees' timekeeping procedures. (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of rights assured by the Federal 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) Post at its New York, New York Regional Office 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 Regional Director or a designee 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 insure that such Notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, 26 Federal Plaza, Room 3700, New York, New York 10278, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ SALVATORE J. ARRIGO Administrative Law Judge Dates: January 14, 1987 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Apparently Rockwell continued to serve as Acting Regional Manager during this period. (2) In the memorandum Coronado also pointed out to Rockwell some other practices related to employee time and attendance which appeared to him to be "contrary to Departmental and OPM policy." (3) Manley Khaleel, President of Chapter 218 and Shop Steward for the Office for Civil Rights, was employed by Respondent's Public Health Service as a Public Health Service Advisor. He testified that where he is located employees are on flextime and the timekeeping method followed at that location for the past four years was for employees to write in the time of arrival and the time of departure on a paper which lists the 10 to 15 employees in his unit alphabetically. The document is not located adjacent to a secretarial station and is collected daily by a timekeeper. (4) 5 C.F.R. section 610.404, 48 FR 44060 (September 27, 1983), entitled "Requirement for time-accounting method", provides: "An agency that authorizes a flexible work schedule or a compressed work schedule under this subpart shall establish a time-accounting method that will provide affirmative evidence that each employee subject to the schedule has worked the proper number of hours in a biweekly pay period." (5) Coronado testified that the matter of distribution of copies of the memorandum was left to his secretary who did not testify in these proceedings. (6) Section 7103(a) (14) (c) of the Statute provides: "(a) For the purpose of this chapter . . . (14) 'condition of employment' means personnel policies, practices, and matters, whether established by rule, regulation or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters . . . (c) to the extent such matters are specifically covered by Federal statute . . . " (7) Although my Order permitting supplemental briefs specifically asked that the question of whether the regulations were still in effect be addressed, only counsel for the General Counsel complied indicating OPM Bulletin No. 610.35 was no longer in effect when the conduct herein occurred. (8) As stated previously, counsel for Respondent raised the question of the applicability of the OPM and GAO regulations for the first time in his brief thus requiring, in the interest of due process, that I allow supplemental briefs be filed by the parties limited to this issue. However, Respondent in its supplemental briefs raised another new issue by contending for the first time that a proposal for non-seriatim time sheets would be nonnegotiable under section 7106(b)(1) of the Statute. I view the raising of such issue at this stage of the proceedings to be inappropriate and an abuse of orderly administrative processes which must be followed so as to avoid interminable litigation and therefore need not be addressed. Cf. American Federation of Government Employees, AFL-CIO, Local 2000, 4 FLRA 601 (1980), fn. 2 at 608. In any event, the Union by its December 22, 1985 letter, supra, did not propose that non-seriatim time sheets be used. Rather it sought to negotiate generally on the change, albeit requesting that the status quo be maintained during negotiations. (9) Although the Charging Party requests a return to the status quo ante, in her supplemental brief counsel for the General Counsel indicated that a status quo ante remedy was no longer being sought by the General Counsel.