41:1309(103)CA - - HHS, SSA, Baltimore, MD and Hartford District Office, Hartford, CT and AFGE Local ll64 - - 1991 FLRAdec CA - - v41 p1309

Other Files: 


[ v41 p1309 ]
41:1309(103)CA
The decision of the Authority follows:


41 FLRA No. 103

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

SOCIAL SECURITY ADMINISTRATION

HARTFORD DISTRICT OFFICE

HARTFORD, CONNECTICUT

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 1164

(Charging Party/Union)

1-CA-80376

1-CA-80407

DECISION AND ORDER

August 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondents to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The General Counsel filed an opposition to the Respondents' exceptions.(1)

The consolidated complaint alleged that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) unilaterally changing the conditions of employment of employees in the bargaining unit without bargaining with the American Federation of Government Employees, AFL-CIO (AFGE) and/or the American Federation of Government Employees, AFL-CIO, Local 1164 (AFGE, Local 1164) over the Union's proposals; (2) failing to furnish requested data to AFGE, Local 1164; and (3) conducting a formal discussion without giving AFGE and AFGE, Local 1164 an opportunity to be represented.

The Judge found that the Respondents violated the Statute as alleged. Specifically, the Judge concluded that the Respondents violated: (1) section 7116(a)(1) and (5) of the Statute by unilaterally implementing a reorganization without bargaining with AFGE, Local 1164 concerning negotiable proposals which related to the impact and implementation of the reorganization; (2) section 7116(a)(1), (5), and (8) of the Statute by failing to furnish AFGE, Local 1164 with requested data; and (3) section 7116(a)(1) and (8) of the Statute by failing to enable AFGE, Local 1164 to be represented at a formal discussion concerning conditions of employment.

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. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, to the extent that they are consistent with our findings below.

II. Background

The facts of this case, more fully set forth in the Judge's decision, are summarized below.

AFGE represents a nationwide consolidated unit of Social Security Administration employees, including nonprofessionals employed at the Social Security Administration's Hartford District Office. At all times material to this case, the Respondents have recognized AFGE, Local 1164 as the agent of AFGE for the purpose of representing approximately 30 bargaining unit employees located at the Hartford District Office. These employees include claims representatives (CRs) and claims development clerks (CDCs).

Fourteen of the CRs working at the Hartford District Office are assigned to "Title II" claims. These claims involve retirement and survivor's insurance, health and medical insurance, and disability insurance. Until mid-1988, the Title II CRs were assigned to one of two separate units, the Teleclaims Unit or the Floor Unit. Most of the Title II CRs were assigned to the Floor Unit, while three Title II CRs would rotate into the Teleclaims Unit every 6 months.

The Teleclaims Unit was out of public view and away from the Floor Unit. The CRs in the Teleclaims Unit conducted each interview by telephone, prepared the application for the claimant's signature and mailed it to the claimant. When the claim was returned, the same CR developed and adjudicated the claim. Claims pending adjudication when a CR rotated back to the Floor Unit remained in the Teleclaims Unit and were assumed by the CR rotating into the Teleclaims Unit. The claims handled by the Teleclaims Unit consisted virtually entirely of retirement, survivor, and health insurance claims. The workload and working conditions in the Teleclaims Unit were "easier, more pleasant and more relaxed" than they were in the Floor Unit. Judge's Decision at 4.

CRs in the Floor Unit handled all types of claims, including disability claims and past entitlement (PE) work. Until mid-1988, interviews of walk-in claimants were allocated by the receptionist based on workload, type of claim, and availability of CRs. In assigning claimants to CRs, the receptionist "logged each CR's number of interviews[,] tallied disability claims separately from the other types of claims because disability claims were more time-consuming[,] [and] referred a waiting claimant to the CR having the lowest number of interviews and the lowest number of the type of claim involved." Id. The CR who interviewed a claimant was responsible for developing and adjudicating the claim, "a practice known as 'keep what you take' (KWYT)." Id. A log was maintained to equalize the distribution of interviews and pending work among the CRs assigned to the Floor Unit. The disability and PE claims handled by the Floor Unit were more difficult than the retirement and survivor's claims.

In March 1988, the Union's representative, Walter Samuel, notified officials at the Hartford District Office that the time had passed for rotating CRs between the Teleclaims Unit and the Floor Unit but that no rotation had occurred. The Assistant District Manager for the Hartford District Office, Thomas Kucab, told Samuel that the Hartford District Office CRs had not been rotated because the Respondents were "considering reorganizing the office[.]" Id. In response to the proposed reorganization plan that Kucab showed to Samuel, Samuel provided Kucab with an alternative arrangement referred to as the "Schmidt Plan."(2)  Samuel and Kucab discussed the Schmidt Plan in a one-hour meeting, but "Kucab was non-com[m]ittal about the Schmidt Plan." Id. at 5.

On June 30, 1988, Kucab provided Samuel with a new reorganization plan that was to be implemented on July 11, 1988. The new reorganization plan eliminated the Teleclaims Unit and provided that both walk-in and telephone claims were assigned to the Floor Unit. Cases were to be assigned by an alphabetical (alpha) breakdown based on the first letter of the claimant's last name. Each CR was to be responsible for specific portions of the alphabet for all claims. A weekly "out-of-alpha" log was to be used when a CR was busy with an interview or otherwise unavailable to cover alpha responsibilities. No other changes in the daily claims processing procedure were to be initiated, and the CRs were to continue using the same forms and work sheets that they currently used.

Samuel promptly requested to bargain and offered the Schmidt Plan as the Union's alternative to the Respondents' reorganization. By letter, Samuel requested that the Union be given "copies of all records and statistical data upon which management relied in reaching its proposal." Id. In addition, Samuel requested "copies of the office DOWR [Daily Office Work Report] by unit in Title II for the past six months as well as the office interviewing logs for that time period." Id. (citation to footnote omitted). Kucab "never responded to these requests and did not furnish the requested data, although he did inform Samuel that the data was available for Samuel's 'review.'" Id.

On July 8, 1988, Kucab advised Samuel for the first time that the Schmidt Plan "failed to address the impact and implementation of the reorganization and was non-negotiable." Id. at 6. Kucab informed Samuel that absent any proposals from the Union concerning the impact and implementation of the decision, the reorganization would be implemented on July 25, 1988. On July 11, 1988 and again on July 15, Samuel requested an allegation of nonnegotiability. Samuel stated that "the Schmidt Plan contained alternate procedures to mitigate the adverse impact of the [Respondents'] decision" and "was not intended to dictate the assignment of responsibilities to the OS [Operations Supervisor]." Id. The record does not indicate whether the Union received a written allegation of nonnegotiability from the Agency. The Union did not file a negotiability appeal.

The reorganization was implemented on or about August 1, 1988. On August 25 from 8:00 a.m. to 8:45 a.m., the Operations Supervisor held a meeting to "talk about how the reorganization was working out and to solicit employees' feelings[.]" Id. at 7. Attendance by the CRs was mandatory. CRs raised several complaints about the new procedures to the managers attending the meeting. Samuel was not notified of the meeting because, according to the Operations Supervisor, "Samuel was not one of the people involved in taking claims." Id. Samuel went to the meeting room during the meeting to collect his mail, but the "record fails to establish that Samuel was aware of [the] subject matter of the meeting." Id.

III. Administrative Law Judge's Decision

The Judge found that the Respondents violated section 7116(a)(1) and (5) of the Statute by implementing the reorganization without bargaining over certain portions of the Schmidt Plan. In this regard, the Judge noted that the reorganization plan "involved a substantial change in the employment conditions of the CRs" and, therefore, such a plan "could not be lawfully implemented until [the Respondent] had fully bargained with AFGE Local 1164 over all [U]nion proposals that were negotiable." Id. at 9.

The Judge concluded that the portions of the Schmidt Plan that "proposed procedures for distributing the work among those CRs whom management had determined were qualified to do the work and to whom management had assigned the work" did not directly interfere with management's rights. Id. The Judge noted that all CRs were to be assigned to the Floor Unit and were to handle all types of claims. The Judge further noted that management had full discretion to determine the number of CRs to handle the teleclaims and other work on particular days and that the Schmidt Plan "merely proposed alternate procedures for allocating and distributing the same variety [of] work among these CRs." Id., citing Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 659 (1988) (SSA). Specifically, the Judge concluded that the portions of the Schmidt Plan dealing with "the method of equitably distributing the work among the CRs in the Floor Unit, including the rotation of CRs to handle teleclaims on a daily basis and the KWYT system[,]" were negotiable. Id. at 10.

In so finding, the Judge noted that the Schmidt Plan provisions "were not so interrelated as to consist of one proposal" and, therefore, could be considered separately. Id. The Judge further found that other portions of the Schmidt Plan were nonnegotiable because they "deal with the duties of OS's [Operations Supervisors.]" Id.

With respect to the remedy for the Respondents' failure to bargain over the negotiable portions of the Schmidt Plan, the Judge concluded that it would be unduly disruptive to rescind changes relating to the workload distribution and, therefore, did not recommend that a status quo ante remedy be granted.

As to the other allegations, the Judge found that the Respondents violated: (1) section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the data requested by the Union; and (2) section 7116(a)(1) and (8) of the Statute by failing to notify the Union of the August 25 meeting and failing to afford the Union the opportunity to be represented at the meeting.

IV. Positions of the Parties

A. The Respondents

The Respondents except only to the Judge's finding that they violated the Statute by failing to bargain over the negotiable portions of the Schmidt Plan. The Respondents contend that the Judge erred in not considering the negotiability of each of the proposals. According to the Respondents, had the Judge considered each proposal, he "would have found that none of the proposals were negotiable." Respondents' Exceptions at 7.

The Respondents argue that the Union's proposals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Respondents distinguish SSA, relied on by the Judge, by stating that in this case, "management had not predetermined specifically which CRs would perform the teleclaims and walk-in interviews" and "did not decide that the CRs could not be used for other duties." Id. at 5.

The Respondents contend that the Judge erred in finding that the reorganization plan involved a substantial change in employment conditions. In this regard, the Respondents state that the reorganization "did not result in the assignment of any new duties to the Title II CRs[,]" but was "merely a change in procedures for assigning the same duties which Title II CRs had performed for years." Id. The Respondents further state that the plan "carried the kind of flexibility that would allow [them] to change how [they] would use the CRs." Id.

The Respondents also contend that the Schmidt Plan directly interferes with management's right to determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute. For example, the Respondents assert that Proposal 2 "tells [management] that it must assign interviews a certain way" and, therefore, "directly affects the means regarding how [management] should do its work." Id. at 8. Similarly, the Respondents argue that Proposal 7 interferes with the method by which management designates work assignments and that Proposals 10 through 12 affect "the technology (function of a technician using a telephone) of how management chooses to distribute work." Id.

B. The General Counsel

The General Counsel argues that the Judge's decision should be affirmed and "accept[s] the Judge's recommendation for remedying the Respondent[s'] unlawful conduct." General Counsel's Opposition at 3.

The General Counsel notes the Respondents' attempt to distinguish SSA, but contends that the Schmidt Plan is "fundamentally similar" to the proposals found to be negotiable in SSA. Id. The General Counsel further notes the Respondents' assertion that management had not predetermined which CRs would perform the teleclaims and walk-in interviews, but contends that the Respondents' assertion "is contradicted by the evidence[.]" Id. In this regard, the General Counsel states that the Judge found that the Respondents' reorganization plan contemplated that each CR would be responsible for teleclaims. The General Counsel also notes the Respondents' previous assertion that "'[m]anagement had determined that all teleclaims would be handled on a daily basis by all employees.'" Id. at 4, quoting Respondents' Post-Hearing Brief at 15 (emphasis in Respondents' Post-Hearing Brief).

As to the Respondents' argument that the Schmidt Plan interferes with management's right to determine the technology, methods, and means of performing work, the General Counsel argues that the Respondents "fail[] to address the Authority's test in this regard." Id. at 4. Specifically, according to the General Counsel, the Respondents have "not articulated how the proposals sustained by the Judge would directly interfere with the functioning of a consolidated Floor Unit." Id. at 5.

Finally, the General Counsel argues that there is no basis for the Respondents' assertion that they were prejudiced by the Judge's treatment of the issues.

V. Analysis and Conclusions

A. Preliminary Matter

The Respondents excepted only to the Judge's finding that they violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the negotiable portions of the Schmidt Plan. No exceptions were filed concerning the Judge's conclusions that the Respondents violated: (1) section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the data requested by the Union; and (2) section 7116(a)(1) and (8) of the Statute by failing to notify the Union of the August 25 meeting and failing to afford the Union the opportunity to be represented at the meeting. Accordingly, we adopt the Judge's conclusion that the Respondents committed the unfair labor practices noted above.

B. Whether the Respondents Had a Duty to Bargain over the Schmidt Plan

For the following reasons, we find that the Respondents changed unit employees' conditions of employment by unilaterally implementing the reorganization plan. As the Respondents implemented the reorganization plan without bargaining with the Union over negotiable portions of the Schmidt Plan, we agree with the Judge's conclusion that the Respondents violated section 7116(a)(1) and (5) of the Statute.

An agency must provide the exclusive representative of affected employees with notice of proposed changes in conditions of employment in the bargaining unit and an opportunity to bargain over those aspects of the changes that are negotiable. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 33 FLRA 454, 458 (1988) (Department of Health and Human Services). Even if the subject matter of a change in conditions of employment is outside the duty to bargain, an agency must bargain about the impact and implementation of a change that has more than a de minimis impact on unit employees. See United States Army Adjutant General Publication Center, St. Louis, Missouri, 35 FLRA 631, 634 (1990); Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (Department of Health and Human Services).

Where a bargaining obligation arises from an agency's change in conditions of employment, the agency is required to bargain over negotiable proposals addressing those changes prior to implementing the changes. See, for example, SSA, 31 FLRA at 656. Where a union submits bargaining proposals and an agency refuses to bargain over the proposals based on the contention that they are nonnegotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. If any one of the union's proposals is held to be negotiable, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute by implementing the change without bargaining over the negotiable proposal. See, for example, SSA, 31 FLRA at 657-59; and United States Department of the Treasury, Internal Revenue Service, Dallas District, 19 FLRA 979 (1985).

1. Conditions of Employment

In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. See American Federation of Government Employees, Local 3013 and U.S. Department of Defense, National Guard Bureau, Maine Air National Guard, Augusta, Maine, 40 FLRA 203, 205 (1991); Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986).

The parties do not dispute that: (1) the reorganization plan pertains to bargaining unit employees; and (2) there is a direct connection between the Respondents' reorganization plan and the work situation or employment relationship of the bargaining unit employees in this case. Rather, the Respondents contend that the Judge erred in finding that the reorganization plan involved a change in employment conditions that was more than de minimis. However, the Respondents acknowledge that the reorganization plan resulted in "a change in procedures" for assigning duties to CRs. Respondents' Exceptions at 5.

The parties do not argue that the Respondents' decision to reorganize the CRs was negotiable. Therefore, we will confine our decision to whether the Respondents were required to bargain over portions of the Schmidt Plan concerning the impact and implementation of the reorganization plan.

To determine whether a change has more than a de minimis impact on unit employees, the Authority examines the record and places principal emphasis 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. Department of Health and Human Services. For examples of the Authority's application of this standard, see U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 35 FLRA 1039 (1990); SSA; and Department of Health and Human Services, Family Support Administration, 30 FLRA 346 (1987).

Applying that standard to this case, we agree with the Judge's conclusion that the Respondents' reorganization plan constituted a change in employees' conditions of employment that was more than de minimis. As noted by the Judge, prior to the change, a log was maintained to equalize the distribution of interviews and the more difficult disability and PE claims to CRs. Following the change, work was to be distributed by the alpha system with no consideration given to the types of claims that were being assigned. Further, the Respondents' reorganization involved the elimination of the separate, "more pleasant and more relaxed" Teleclaims Unit and the incorporation of the work performed by the Teleclaims Unit into a single Floor Unit. Judge's Decision at 4. As the Respondents' plan changed the previous method of equalizing the claims assigned to employees and required all CRs to handle teleclaims in addition to walk-in claims, we reject the Respondents' contention that the change was de minimis.

2. The Severability of the Schmidt Plan

We agree with the Judge's finding that the Schmidt Plan does not constitute one proposal, but that it may be severed into individual proposals. The proposals are not so interrelated that the negotiability of one depends on the negotiability of the others. Moreover, the proposals raise different legal questions. See Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234, 239-40 (1987) (proposals that present distinct legal questions must be treated differently). Accordingly, we conclude that the plan consists of individual proposals.

3. The Negotiability of the Schmidt Plan

As we noted previously, in order to determine whether the Respondents violated section 7116(a)(1) and (5) of the Statute by implementing a reorganization plan without bargaining over the Schmidt Plan proposals, we must determine whether any part of the Schmidt Plan is negotiable. If any one of the Schmidt Plan proposals is negotiable, then the Respondents violated the Statute by implementing the reorganization plan without bargaining over the negotiable proposal.

We note that, in reference to the Schmidt Plan, the parties specifically addressed how the elimination of the Teleclaims Unit and the establishment of the alpha system would affect whether work would be distributed to CRs in an equitable manner. See General Counsel's Post-Hearing Brief at 14-16; Respondents' Post-Hearing Brief at 15-16. Accordingly, the record is sufficient for us to determine the negotiability of proposals addressing the equitable distribution of work to CRs.

Consistent with the Judge's decision, we find, for the following reasons, that the portions of the Schmidt Plan concerning the method of equitably distributing the work among the CRs are negotiable. Although the Judge did not identify those portions by proposal number, it appears from the Judge's description that the Judge was referring to Proposals 2, 4, 6, 12, and 13. Accordingly, we find that Proposals 2, 4, 6, 12, and 13 constitute negotiable procedures within the meaning of section 7106(b)(2) of the Statute.

Proposals 2, 4, 6, 12, and 13 provide procedures for equitably distributing the different types of claims among qualified CRs. These proposals are similar to proposals found to be negotiable in SSA. In SSA, the Authority found the following proposals to be negotiable procedures within the meaning of section 7106(b)(2): (1) a proposal providing for the daily rotation of employees in an equitable manner; and (2) a proposal using rotation for selecting employees from among those employees that management had determined to be qualified to perform the work. SSA, 31 FLRA at 657-59 (Proposals 1 and 2). In finding the proposals to be negotiable, the Authority noted that the obligation to bargain over the rotation of employees to perform certain tasks was limited to employees qualified to perform the work.

The record does not indicate that certain CRs are more qualified to handle specific types of claims. Rather, according to the Respondents, "[m]anagement had determined that all teleclaims would be handled on a daily basis by all employees." Respondents' Post-Hearing Brief at 15 (emphasis in original). In light of the Respondents' assertion as well as the fact that the Respondents set up a plan in which claims were to be distributed among CRs based on the claimant's last name, we find that the Respondents considered all of the CRs to be qualified to handle all types of claims. As the proposals constitute alternate procedures for allocating and distributing the same type of work among equally qualified CRs, we find that Proposals 2, 4, 6, 12, and 13 are negotiable. See SSA.

We reject the Respondents' argument that the Union's proposals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Respondents argue in their exceptions that the Schmidt Plan directly interferes with management's right to assign work because "management had not predetermined specifically which CRs would perform the teleclaims and walk-in interviews." Respondents' Exceptions at 5. However, as noted above, the Respondents previously stated that all CRs would handle teleclaims and the Respondents set up an alpha system where all CRs were assigned to all types of claims. Inasmuch as the alpha system does not allow the Respondents to predetermine specifically which particular CR will handle which particular kind of claim, we find that the Respondents have failed to substantiate their assertion that they must predetermine which CRs will handle particular claims. As the Respondents have not shown that Proposals 2, 4, 6, 12, or 13 require management to assign duties to employees not qualified to perform the work or in any way preclude management from assigning work to qualified employees, we find that the Respondents have not established that the proposal interferes with management's right to assign work. See SSA.

We also reject the Respondents' argument that the proposals directly interfere with management's right to determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute. The Authority employs a two-part test to determine whether a proposal directly interferes with management's right to determine the "technology" used in "performing work." In order to sustain such a claim, an agency must show: first, the technological relationship of the matter addressed by the proposal to accomplishing or furthering the performance of the agency's work; and second, how the proposal would interfere with the purpose for which the technology was adopted. For example, American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 39 FLRA 504, 511-12 (1991).

In their exceptions, the Respondents presented a specific argument as to why Proposal 12 directly interferes with management's right to determine the technology of performing work, but made no such specific arguments with respect to Proposals 2, 4, 6, and 13. The Respondents claim that Proposal 12 directly interferes with management's right to determine the technology of performing its work because the proposal affects "the technology (function of a technician using a telephone) of how management chooses to distribute work." Respondents' Exceptions at 8. We reject this claim because such an argument, without more, does not demonstrate that there is a technological relationship between the matter addressed in Proposal 12 and the performance of the Respondents' work within the meaning of section 7106(b)(1). See National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 404 (1990) (Department of the Treasury). Proposal 12 does not dictate the technology the Respondents will use to process claims because the Respondents have already decided that CRs will use telephones to handle certain types of claims. Rather, Proposal 12 is merely a procedure for determining who among equally qualified employees will handle particular telephone claims.

As we noted above, the Respondents made no specific arguments on how Proposals 2, 4, 6, and 13 directly interfere with management's right to determine the technology used in performing work. Consequently, we find that the Respondents have not established that these proposals directly interfere with management's right to determine the technology of performing work within the meaning of section 7106(b)(1) of the Statute.

Similar to the analysis regarding interference with the right to determine the technology of performing work, the Authority employs a two-part test to determine whether a proposal violates management's right to determine the "methods and means of performing work." First, an agency must show a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. Department of the Treasury, 35 FLRA at 406-09.

The Respondents have failed to address either part of the test with respect to Proposals 4, 6, 12, and 13. As to Proposal 2, the Respondents argue that the proposal "tells [management] that it must assign interviews a certain way" and, therefore, "directly affects the means regarding how [management] should do its work." Respondents' Exceptions at 8. This statement is not sufficient to establish that Proposal 2 directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1). As noted previously, the proposals constitute procedures for determining who will perform the work. See National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1073 (1988) (Proposals 8 and 9), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988). Accordingly, we reject the Respondents' argument that Proposal 2 directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

Moreover, as we noted above, the Respondents made no specific arguments on how Proposals 4, 6, 12, and 13 directly interfere with management's right to determine the methods and means of performing work. Consequently, we find that the Respondents have not established that these proposals directly interfere with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

As the Respondents refused to bargain over Proposals 2, 4, 6, 12, and 13, we agree with the Judge's conclusion that the Respondents violated section 7116(a)(1) and (5) of the Statute.(3)

4. Remedy

The Judge found that "the elimination of the Teleclaims Unit and the assigning [of] all CRs to the Floor Unit so fundamentally changed the operation" that reinstituting the prior system would be "unduly disruptive[.]" Judge's Decision at 13-14. The General Counsel does not object to the Judge's conclusion that a status quo ante remedy was not appropriate in this case. Therefore, we need not address whether the Judge's conclusion is consistent with the analysis set forth in Federal Correctional Institution, 8 FLRA 604 (1982), for determining whether to grant status quo ante relief for an agency's failure to bargain over the impact and implementation of a change in conditions of employment.

Accordingly, we will issue a cease and desist order and a Notice requiring the Respondents to: (1) bargain, upon request, over the procedures and appropriate arrangements for employees adversely affected by the reorganization of the Title II claims representatives, including Proposals 2, 4, 6, 12, and 13 of the Schmidt Plan; (2) upon request and to the extent permissible by law, furnish the Union with data needed for full and proper discussion, understanding, and negotiation concerning the reorganization of the Title II claims representatives or other appropriate matters; and (3) notify the Union and give it an opportunity to be represented at formal discussions with employees concerning the reorganization of the Title II claims representatives or any other conditions of employment.

VI. Order

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), the U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and the Social Security Administration, Hartford District Office, Hartford, Connecticut, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain with the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of their employees, to the extent consistent with law and regulations, concerning the procedures and appropriate arrangements for employees adversely affected by the reorganization of the Title II claims representatives, including Proposals 2, 4, 6, 12, and 13 of the Schmidt Plan.

(b) Failing and refusing to furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of their employees, and to the extent permissible by law, data needed for full and proper discussion, understanding, and negotiation concerning the changes in the Title II claims organization or concerning other appropriate matters.

(c) Conducting formal discussions with employees in the bargaining unit exclusively represented by the American Federation of Government Employees, AFL-CIO, Local 1164, concerning changes in the Title II claims organization or any other general conditions of employment without first notifying the American Federation of Government Employees, AFL-CIO, Local 1164 of the discussion and giving it an opportunity to be represented.

(d) In any like or related manner, interfering with, restraining, or coercing their 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 the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of their employees, to the extent consistent with law and regulations, concerning the procedures and appropriate arrangements for employees adversely affected by the reorganization of the Title II claims representatives, including Proposals 2, 4, 6, 12, and 13 of the Schmidt Plan.

(b) Furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of their employees, and to the extent permissible by law, data needed for full and proper discussion, understanding, and negotiation concerning the changes in the Title II claims organization or concerning other appropriate matters.

(c) Notify the American Federation of Government Employees, AFL-CIO, Local 1164 and give it an opportunity to be represented at formal discussions with employees in the unit it represents concerning changes in the Title II claims organization or concerning any other general conditions of employment.

(d) Post at the Social Security Administration, Hartford District Office, Hartford, Connecticut, 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 Director of the Hartford District Office, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted and shall be maintained for 60 consecutive days thereafter. 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, Boston Region, Federal Labor Relations Authority, Boston, Massachusetts, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

 

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 fail and refuse to bargain with the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of our employees, to the extent consistent with law and regulations, concerning the procedures and appropriate arrangements for employees adversely affected by the reorganization of the Title II claims representatives, including Proposals 2, 4, 6, 12, and 13 of the Schmidt Plan.

WE WILL NOT fail and refuse to furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of our employees, and to the extent permissible by law, data needed for full and proper discussion, understanding, and negotiation concerning the changes in the Title II claims organization or concerning other appropriate matters.

WE WILL NOT conduct formal discussions with employees in the bargaining unit exclusively represented by the American Federation of Government Employees, AFL-CIO, Local 1164, concerning changes in the Title II claims organization or any other general conditions of employment without first notifying the American Federation of Government Employees, AFL-CIO, Local 1164 of the discussion and giving it an opportunity to be represented.

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 Statute.

WE WILL, upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of our employees, to the extent consistent with law and regulations, concerning the procedures and appropriate arrangements for employees adversely affected by the reorganization of the Title II claims representatives, including Proposals 2, 4, 6, 12, and 13 of the Schmidt Plan.

WE WILL furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of certain of our employees, and to the extent permissible by law, data needed for full and proper discussion, understanding, and negotiation concerning the changes in the Title II claims organization or concerning other appropriate matters.

WE WILL notify the American Federation of Government Employees, AFL-CIO, Local 1164 and give it an opportunity to be represented at formal discussions with employees in the unit it represents concerning changes in the Title II claims organization or concerning any other general conditions of employment.

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

 

APPENDIX

THE SCHMIDT PLAN

[1] This plan effects T [title] II CR's [claims representatives] and CDC's [claims development clerks] only.

[2] Except for the crediting of teleclaims, the T II KWYT ["keep what you take"] system of assigning interviews will remain in effect.

[3] All T II CR's will be assigned a floor alpha[betical breakdown] unit.

[4] Pending PE [past entitlement work] and PE received in the future will be assigned by alpha[betical breakdown].

[5] For convenience, all T II CR's will retain their current claims pending. The KWYT log will be "reset" at zero in all categories.

[6] For special assignments (e.g. rotation to SR [service representative] phones, contact stations, training, PR), the interview portion of the log will be adjusted so that the CR involved will hold the same relative position as before the special assignment. No adjustment will be made to the claims portion of the log.

[7] Teleclaims will be expanded to included DIB's [Disability Benefits].

[8] Walk-in's will be advised by the receptionists of the availability of teleclaims. If the individual chooses this option, the receptionist will complete the forms, etc. (see below) as if the individual had phoned.

[9] Except for calls received directly on the three teleclaims lines, all teleclaims inquiries will be handled as call-backs. The person receiving the call will be responsible for taking the call-back and routing an estimate(s) to the "Tel unit". The T II OS's [Operations Supervisors] will associate the estimates with the call-back. If there is the possibility of T XVI eligibility, a copy of the call-back and the estimate(s) will be referred to the T XVI OS.

[10] For DIB's, in addition to the above, the person taking the call-back will advise the caller that we are mailing an SSA-3368 (with envelope for "TEL UNIT") and will recontact once the form is returned. The person will mail the form along with a covering sheet summarizing what additional information we will need to complete an application. The call-back sheet will be routed to the T II OS's who will control them and associate the SSA-3368's received. Upon receipt, they will be placed in their proper order for recontact.

[11] All call-backs will be worked in the order (date) received.

[12] CR's would be rotated to do call-backs on a daily basis.

[13] The rotation would initially be established by a fixed roster based on seniority.

[14] The number of CR's assigned to teleclaims on any given day would be flexible. (If fewer than three, one of the Tel lines would be shut down).

[15] CR's would have to be on duty (i.e. here at least four hours) on the day before being rotated into Tel.

[16] CR's absent the day before or on their Tel day would be skipped and would have to wait their turn in the next regular rotation.

[17] CR's would be told the day before their rotation into Tel.

[18] MPD would be the only exception. Since she is not scheduled to work on Wednesday's, if she came up on rotation on a Tuesday, she would be on Tel Thursday.

[19] Unexpected absences and limited tours will not alter the rotation or assignments except in extreme circumstances.

[20] When a CR is assigned to Tel, he/she is assigned to Tel except in extreme circumstances.

[21] CR's would work on their units between interviews be they face-to-face or teleclaims.

[22] CR's would retain responsibility for the claims they take in Tel through adjudication.

[23] No CDC [claims development clerk] would be assigned to Tel.

[24] Call-backs would be controlled by the T II OS's.

[25] Once a claim is taken/mailed, all correspondence and recontact will be through the floor unit.

[26] Upon receipt, CR's will take credit for the appropriate type of claim on the interviewing log. No adjustments will be made for interviews.

[27] CR's will be "rotated" in assigned duty only. Teleclaims will be conducted from their unit desks.

[28] Any erroneous callers on the teleclaims lines will be given the general number and told they have reached a wrong number.

[29] If a call-back attempt is unsuccessful, the sheet will be annotated and given to the T II OS.

[30] All T II pending will be located in one place.

[31] No CR scheduled for teleclaims will be assigned SR phones.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union filed an untimely opposition to the exceptions. We note that the General Counsel requested and was granted an extension of time in which to file its opposition to the Respondents' exceptions. It appears that the Union filed its opposition in conjunction with the General Counsel's extension. However, the Union may not use the General Counsel's approved extension to enlarge the time for filing its opposition. Because the Union's opposition is untimely, it has not been considered.

2. The 31 proposals that make up the Schmidt Plan are set forth in the Appendix to this decision.

3. The record is not sufficient to enable us to determine the negotiability of the remaining proposals. The General Counsel did not except to the Judge's failure to address all of the proposals and the Respondents argued only that "none of the proposals were negotiable." Respondents' Exceptions at 7. As we have found that five of the proposals are negotiable, we reject the Respondents' argument. Having found that the Respondents implemented the reorganization plan without bargaining over five negotiable proposals, we need not determine the negotiability of the remaining proposals in order to determine whether the Respondents violated the Statute. Accordingly, we will not address the negotiability of the remaining proposals.