34:0765(132)CA - - HHS, SSA, Baltimore, MD and SSA, Jamestown, New York District Office, Jamestown, NY and AFGE Local 3342 - - 1990 FLRAdec CA - - v34 p765

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[ v34 p765 ]
34:0765(132)CA
The decision of the Authority follows:


34 FLRA No. 132

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

SOCIAL SECURITY ADMINISTRATION

JAMESTOWN, NEW YORK DISTRICT OFFICE

JAMESTOWN, NEW YORK

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3342

(Charging Party)

1-CA-70309

DECISION AND ORDER

February 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions filed by the General Counsel and the Respondent to the attached Decision of the Administrative Law Judge. No opposition to the exceptions was filed.

The unfair labor practice complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing policies relating to breaks for employees at the Jamestown, New York District Office without notifying the Charging Party (the Union) and giving it an opportunity to bargain over the policy and/or its impact and implementation. The policy required: (1) claims representatives (CRs) to notify their supervisor when taking a break; and (2) all other employees (non-CRs) to notify their supervisor when taking a break at other than their scheduled break period and to provide a reason for the changed break time.

The Judge found that the Respondent did not violate the Statute by failing to bargain over the decision to change the break policy. The Judge found that the Respondent's break policy decision constituted an exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Judge concluded, however, that the Respondent violated section 7116(a)(1) and (5) of the Statute by instituting the break policy decision without first notifying the Union and giving it an opportunity to negotiate on the impact and implementation of the change in break policy.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. After consideration of the Judge's Decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Facts

The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of a consolidated nationwide bargaining unit which includes nonprofessional employees at the Respondent's Jamestown, New York District Office. There are 20 unit employees at the Jamestown office, 8 of whom are CRs. The Union is AFGE's agent for the purpose of representing unit employees at the Jamestown office.

The Respondent and AFGE are parties to a collective bargaining agreement which applies to unit employees at the Jamestown office. Article 10, Section G of the agreement states that "a rest period of fifteen (15) minutes duration will be allowed each employee twice during each 8-hour day."

For many years, the CRs could take their breaks at whatever time they chose. The breaks were not scheduled and the CRs were not required to report to management as to when they were taking their breaks. The non-CRs, who had scheduled break periods at certain times each morning and afternoon, were required to notify their supervisors if they went on a break at a different time. The Judge found, based on the testimony at the hearing, that this requirement was not strictly enforced and was the subject of "benign neglect." Judge's Decision at 3.

On June 5, 1986, the manager of the Jamestown office met with the local Union representative to discuss employee break periods. The Judge found that the manager told the Union representative that supervisors often did not know where employees were, and that supervisors needed to know where employees were at any given time. The manager indicated that he wanted to make some minor changes to achieve this goal. The manager and the Union representative continued to discuss the matter in subsequent meetings.

At a June 19 staff meeting, the manager announced the changes involved in this case. As announced at the meeting, the break procedures required: (1) claims representatives (CRs) to notify their supervisors when taking a break; and (2) all other employees (non-CRs) to notify their supervisors when taking a break at other than their scheduled break period and to provide a reason for the changed break time. The manager stated that employees who failed to comply with the procedures would be subject to disciplinary action. Later that day, the Union representative made a written request to the manager to bargain over the break policy. One month later, the manager replied in writing that management had no obligation to negotiate.

III. Judge's Decision

The Judge stated the issue to be whether the Respondent's failure to negotiate with the Union over the implementation of a policy concerning employee break periods violated section 7116(a)(1) and (5) of the Statute.

The Judge cited Authority decisions holding that the establishment of specified break periods for employees is a condition of employment and that a decision to change break times does not constitute the exercise of a management right. However, the Judge found that this case did not involve a change in employee break times. Rather, the Judge concluded that the change involved a requirement that employees notify their supervisors when they went on break.

The Judge found that the requirements that CRs notify their supervisors when they went on break and that non-CRs provide their supervisors a reason for taking their breaks at other than the scheduled time were necessary for "supervisors to know where the employees were and whether the public was being served." Judge's Decision at 6.

The Judge concluded that, under section 7106(a)(2)(A) and (B) of the Statute, the Respondent did not have a duty to bargain over the notice requirements because the decision to impose the requirement constituted an exercise of management's rights to direct, assign, and discipline employees.

The Judge then considered whether the Respondent had an obligation to bargain over the impact and implementation of the change in break policy, or whether the impact of the change was de minimis. The Judge found that the penalties to be imposed by the Respondent on employees who failed to follow the notification procedures "have a reasonably foreseeable impact on the unit employees that is more than de minimis." Judge's Decision at 7. The Judge concluded, therefore, that the Respondent had an obligation to bargain over the impact and implementation of the change in break policy.

The Judge applied the rationale set forth in Federal Correctional Institution, 8 FLRA 604 (1982), and determined that a status quo ante remedy was warranted.

IV. Positions of the Parties

A. The General Counsel

The General Counsel excepts to the Judge's conclusion that the Respondent's decision to require employees to notify their supervisors before taking their breaks or when taking their breaks at other than their scheduled break times constituted an exercise of management's rights under section 7106(a)(2)(A) and (B) of the Statute. The General Counsel argues that the Judge erred in concluding that the Respondent did not violate the Statute by failing to bargain over the decision to change break requirements.

B. The Respondent

The Respondent excepts to the Judge's determination "that the actions in question had an impact on employees that was more than de minimis, and that there was an obligation to bargain with the union." Respondent's Exceptions at 2. The Respondent argues that the effect of the change is minimal and asserts that when the manager told employees that failure to follow the procedures could result in disciplinary action, the manager was merely reminding employees of the "obvious possible repercussions of not following the policy." Id. at 3.

The Respondent also excepts to the Judge's finding that a status quo ante remedy is appropriate in this case. The Respondent argues that if such a remedy is imposed, "the degree of disruption or impairment upon the efficiency and effectiveness of the Agency's operation will be substantial." Id. at 5.

V. Discussion

As we stated above, we adopt the Judge's findings, conclusions, and recommended Order. We agree with the Judge that the Respondent's decision to make the change in its break policy constituted an exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We find, however, that three points merit additional comment.

A. Exercise of Management's Rights

The establishment of break periods is negotiable. American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842, 843-44 (1986). Scheduling breaks to which employees are entitled under a collective bargaining agreement is within the duty to bargain. U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, 19 FLRA 290, 292-93 (1985). Employees must remain in a duty status during their breaks, however, and management retains the right to assign work to them during their breaks under section 7106(a)(2)(B). Department of Health and Human Services, Social Security Administration, 24 FLRA at 843-44.

In addition, management has the right under section 7106(a)(2) of the Statute to take actions to ensure that the work assigned to employees is accomplished. Management exercises its right to assign work under section 7106(a)(2)(B) and its right to direct employees under section 7106(a)(2)(A) of the Statute by holding employees accountable for the performance of their work. United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 20 FLRA 46, 48 (1985). See Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA 343, 344 (1984).

The break policy involved in this case requires employees to notify supervisors when they take their breaks. The CRs, who have no set break periods, are required to inform their supervisors when they are taking their breaks. The non-CRs are required to inform their supervisors only when they are taking their breaks at other than the scheduled time.

The Respondent's decision to change its break policy did not involve granting breaks or scheduling breaks. Rather, the policy related to notification requirements so that the supervisors could ensure that employees were available to accomplish the work of serving the public who contacted the office. By requiring employees to notify their supervisors before they go on breaks, or when they want to take their breaks at a time different from the schedule, management is requiring employees to be accountable for their use of duty time. Therefore, the Respondent's decision to change its break policy is an exercise of management's rights to direct employees and to assign work and is outside the duty to bargain.

Our decision here is consistent with a previous Authority negotiability decision involving these parties. In American Federation of Government Employees, Local 3342, AFL-CIO and Department of Health and Human Services, Social Security Administration, 19 FLRA 1100 (1985), the Authority found the Union's proposal that there be no set breaks for employees to be negotiable. In that case, "the Union offered to have employees notify the receptionist and supervisor upon taking a break, to allow breaks to be rescheduled when they conflict with meetings, and to provide that a minimum number of employees be on duty before another employee could take a break." 19 FLRA at 1101 n.3.

B. The Change in Conditions of Employment Gave Rise to a Duty to Bargain

We also agree with the Judge that the reasonably foreseeable effects of the Respondent's decision to change its break policy were more than de minimis. The Judge noted that the penalties to be imposed by management on employees who failed to comply with the requirements included a monetary loss or a loss of job security. He concluded that because management was "intent upon maintaining some control of the breaks," the penalties which management could impose on employees would have "a reasonably foreseeable impact upon the unit employees that is more than de minimis." Judge's Decision at 7.

Applying the analysis outlined in Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 405-09 (1986), it is clear that the nature and extent of the effect or reasonably foreseeable effect of the changes on conditions of employment of bargaining unit employees were considerable. The CRs had not previously been subject to any notification requirements. The non-CRs had not previously been required to provide a reason for taking breaks at other than scheduled times. Moreover, the Respondent shifted from a practice of "benign neglect" to one of strict observance of the requirement that non-CR employees notify their supervisors when going on their breaks at other than their scheduled times. Penalties for failure to comply with these requirements include disciplinary actions and being charged AWOL. We agree with the Judge that the foreseeable consequences to employees of a failure to comply with the notification requirement were more than de minimis.

Therefore, we find that the Respondent's new break notification requirements changed conditions of employment and that this change in break policy was more than de minimis. Accordingly, we agree with the Judge that the Respondent violated the Statute when it failed to bargain with the Union over the impact and implementation of the change in break policy before implementing that change.

C. Status Quo Ante Remedy

The Judge applied the criteria established in Federal Correctional Institution, and found that a status quo ante remedy is warranted under the circumstances of this case. The Judge found that the record provided no support for concluding that a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the Respondent's operations. Judge's Decision at 8.

In excepting to the status quo ante remedy, the Respondent quotes the office manager's testimony that a return to the previous practice "would create a problem with controlling the workload, backups for phones, for reception, so on and so forth." Respondent's Brief at 5. We do not find this statement to be adequate support for the Respondent's assertion that substantial disruption would result from a status quo ante remedy. In agreement with the Judge, we find that a status quo ante remedy would not unduly disrupt the efficiency and effectiveness of the Respondent's operation. Therefore, a status quo ante remedy is warranted under the criteria established in Federal Correctional Institution, 8 FLRA at 606.

VI. Order

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Jamestown, New York District Office, Jamestown, New York shall:

1. Cease and desist from:

(a) Unilaterally changing conditions of employment of bargaining unit employees at the Jamestown, New York District Office by implementing a policy requiring claims representatives to notify their supervisor when taking a break period, and requiring all other employees, upon notifying their supervisor of a desire to change a scheduled break period, to provide their supervisor with a legitimate reason for such action, without first notifying the American Federation of Government Employees, AFL-CIO, Local 3342, the recognized bargaining representative of its employees, and affording it an opportunity to negotiate on the procedures to be observed in any further implementation, and appropriate arrangements for employees who have been, or may be, adversely affected by the implementation of any such changes.

(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 Statute:

(a) Rescind the change in respect to break periods whereby claims representatives are required to notify their supervisor when taking a break period and whereby all other employees are required, upon notifying their supervisor of a desire to change a scheduled break period, to provide their supervisor with a legitimate reason for such action.

(b) Reinstate the practice in respect to break periods whereby claims representatives may take a break period without notifying their supervisor, and whereby all other employees are not required, upon notifying their supervisor of a change in a scheduled break period, to provide the supervisor with a legitimate reason for changing the break period.

(c) Notify the American Federation of Government Employees, AFL-CIO, Local 3342, the recognized bargaining representative of its employees, of any proposed change with respect to requiring claims representative to notify their supervisor when taking their break periods, and requiring all other employees, upon notifying their supervisor of a desire to change a scheduled break period, to provide their supervisor with a legitimate reason for changing the break period, and, upon request, negotiate with such representative as to the procedure to be observed in effectuating such changes and regarding appropriate arrangements for adversely affected employees.

(d) Post at its facility at Jamestown, New York, 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 District Manager, Social Security Administration, Jamestown, New York District Office, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and 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.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

The allegation in the complaint that the Respondent unilaterally made and implemented such changes without bargaining with the Union as to the decision to implement the changes is dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change conditions of employment of bargaining unit employees at the Jamestown, New York District Office by implementing a policy requiring claims representatives to notify their supervisor when taking a break period, and requiring all other employees, upon notifying their supervisor of a desire to change a scheduled break period, to provide their supervisor with a legitimate reason for such action, without first notifying the American Federation of Government Employees, AFL-CIO, Local 3342, the recognized bargaining representative of its employees, and affording it an opportunity to negotiate on the procedures to be observed in any further implementation, and appropriate arrangements for employees who have been, or may be, adversely affected by the implementation of any such changes.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the change in respect to break periods whereby claims representatives are required to notify their supervisor when taking a break period and whereby all other employees are required, upon notifying their supervisor of a desire to change a scheduled break period, to provide their supervisor with a legitimate reason for such action.

WE WILL reinstate the practice in respect to break periods whereby claims representatives may take a break period without notifying their supervisor, and whereby all other employees are not required, upon notifying their supervisor of a change in a scheduled break period, to provide the supervisor with a legitimate reason for changing the break period.

WE WILL notify the American Federation of Government Employees, AFL-CIO, Local 3342, the recognized bargaining representative of its employees, of any proposed change with respect to requiring claims representatives to notify their supervisor when taking their break periods, and requiring all other employees, upon notifying their supervisor of a desire to change a scheduled break period, to provide their supervisor with a legitimate reason for changing the break period, and, upon request, negotiate with such representative as to the procedure to be observed in effectuating such changes and regarding appropriate arrangements for adversely affected employees.

_________________________________
(Activity)

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 I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046 and whose telephone number is: (617) 565-7280.




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