50:0296(50)CA - - HHS, SSA and AFGE General Committee - - 1995 FLRAdec CA - - v50 p296



[ v50 p296 ]
50:0296(50)CA
The decision of the Authority follows:


50 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

GENERAL COMMITTEE

(Charging Party/Union)

WA-CA-20937

_____

DECISION AND ORDER REMANDING CASE

March 29, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

The Administrative Law Judge issued the attached decision finding that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing revised performance standards for bargaining unit employees while the Union's request for assistance with negotiations over the impact and implementation of the revised standards was pending before the Federal Service Impasses Panel (the Panel).

No exceptions were filed to the Judge's finding of a violation of the Statute. The General Counsel excepts to the Judge's failure to grant make-whole relief and a status quo ante remedy. The Respondent filed an opposition to the General Counsel's exceptions and the General Counsel filed a motion to strike the Respondent's opposition as untimely filed.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute, and his recommendation that status quo ante relief be denied. However, for the following reasons, we find that the case must be remanded to the Judge to further consider make-whole relief for employees adversely affected by the Respondent's improper actions.

II. Judge's Decision

The Judge's decision, which fully sets forth the facts and other matters related to this proceeding, is attached and only the facts necessary to our discussion are repeated here.

The Judge concluded that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by implementing revised performance standards while the Union's request for assistance was pending before the Panel. The Judge considered the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI) and concluded that a status quo ante remedy was not appropriate in this case.(1) The Judge did not address the General Counsel's request for make-whole relief.

III. Positions of the Parties

The General Counsel excepts to the Judge's failure to recommend a status quo ante remedy. The General Counsel contends that the Judge erred by relying on the Respondent's unsupported claims as to the effect of a status quo ante remedy and by failing to properly assess, under FCI, how a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the Agency's operations. The General Counsel also excepts to the Judge's failure to provide make-whole relief for employees adversely affected by the Respondent's use of the revised performance standards. Relying on Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 32 FLRA 521 (1988) (SSA, Dallas), the General Counsel argues that a make-whole remedy is necessary to effectuate the purposes and policies of the Statute.

IV. Analysis and Conclusions

A. Preliminary Matter

We grant the General Counsel's motion to strike the Respondent's opposition as untimely filed. The General Counsel's exceptions were served on the Respondent on November 29, 1993. Accordingly, under sections 2423.28(b) and 2429.22 of the Authority's Regulations, the Respondent's opposition had to be either postmarked by the U.S. Postal Service or received at the Authority no later than December 14, 1993, in order to be considered timely. The Respondent filed its opposition with the Authority on December 16, 1993.

We reject the Respondent's claim that the period for filing its opposition should start on the date on which it received the General Counsel's exceptions. Under section 2423.28(b), the time limit for filing an opposition is calculated from the date the exceptions are served, not from the date they are received. Moreover, under section 2429.22, when exceptions are served on a party by mail, only 5 days are added to the prescribed period, even if it takes more than 5 days from the date of service before the party actually receives the exceptions. See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1311-13 (1990).

B. Status Quo Ante

We find that the Judge properly applied the FCI factors in concluding that a status quo ante order is not appropriate in this case. In particular, we agree with the Judge that, on balance, an order to rescind the revised standards, all performance appraisals issued under the revised standards, and all related personnel actions, would disrupt or impair the efficiency and effectiveness of the Respondent's operations. We reject the General Counsel's claim that the record contains no evidence regarding these matters. The Respondent submitted evidence to the Judge in opposition to the General Counsel's motion for summary judgment. The General Counsel presented no contrary evidence.

C. Make-Whole Relief

The question of individual make-whole relief where a status quo ante remedy is denied was addressed by the court in American Federation of Government Employees, SSA Council 220 v. FLRA, 840 F.2d 925, 929-30 (D.C. Cir. 1988) (SSA Council 220). The court reviewed Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 23 FLRA 807 (1986), in which the Authority had denied a status quo ante remedy. The court approved that denial, but found that the Authority had not justified its failure to order individualized make-whole relief for affected employees. On remand in SSA, Dallas, the Authority provided a make-whole remedy which provided, among other things, backpay.(2)

The approach set forth in SSA Council 220 and followed in SSA, Dallas, requiring consideration of make-whole relief independent of status quo ante relief, also applies in this case.(3) Accordingly, we must determine whether, and the extent to which, make-whole relief should be granted to employees adversely affected by the Respondent's improper effectuation of its revised employee performance standards. However, the Judge did not separately address the issue of make-whole relief, and we are unable to resolve that issue on the basis of the record before us. Accordingly, we remand the case to the Judge to determine whether, and the extent to which, make-whole relief should be granted to adversely affected employees.

V. Order

The case is remanded to the Judge for further proceedings consistent with this decision.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, GENERAL COMMITTEE
Charging Party

Case No. WA-CA-20937

Carroll S. Rankin, Jr.
Representative of the Respondent

Christopher M. Feldenzer
Counsel for the General Counsel

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), (5), and (6), by implementing revised performance standards for bargaining unit employees while the Union's request for assistance with negotiations over the impact and implementation of the standards was pending before the Federal Service Impasses Panel.

Respondent's answer admitted all material allegations of fact, but denied any violation of the Statute.

On or about March 5, 1993, the General Counsel moved for summary judgment. The Regional Director transferred the motion to the Chief Administrative Law Judge pursuant to section 2423.22(b)(1) of the Regulations. The Chief Administrative Law Judge gave the parties until March 25, 1993 to respond to the motion noting, "The record will then be closed, absent special permission to file further materials." On March 24, 1993 Respondent filed its opposition to the General Counsel's motion, requesting that the General Coun-sel's motion be denied and that the complaint be dismissed. Respondent filed a memorandum together with twenty exhibits in support of its position. The General Counsel and the Charging Party did not move for permission to respond to the Respond-ent's opposition pursuant to the Chief Administrative Law Judge's order or otherwise object to the Respondent's memorandum or exhibits. The pleadings were assigned to the undersigned for disposition pursuant to section 2423.19(k) and section 2423.22(b)(3) of the Regulations.

Treating Respondent's request to dismiss with supporting exhibits as a cross-motion for summary judgment, and considering all the pleadings and exhibits, it appears that there are no genuine issues of material fact and that the General Counsel is entitled to summary judgment as a matter of law. Accordingly, I make the following findings of fact, conclusion of law, and recommendations.

Findings of Fact

The American Federation of Government Employees, AFL-CIO (AFGE) is the certified exclusive representative of a nation-wide consolidated unit of employees appropriate for collective bargaining at Respondent. Council 215 is an agent of AFGE for representing unit employees at Respondent's Office of Hearings and Appeals. Local 1923 is an agent of AFGE for representing unit employees at Respondent's Headquarters. Council 220 is an agent of AFGE for representing unit employees at Respond-ent's Field Office Component. The National Council of Social Security Payment Center Locals is an agent of AFGE for repre-senting unit employees at Respondent's Program Service Centers. The National Council of Social Security Administration Field Assessment Locals is an agent of AFGE for representing unit employees at Respondent's Office of Program Integrity and Review. These agents of AFGE represent approximately 48,000 employees.

Based on direction from the Commissioner of Social Secur-ity, and using Union and employee input, Respondent updated all of its performance standards during 1991 to comply with 5 U.S.C. § 4302(b)(1). The "old" standards had been used for three years in a row (1989-1991).

Between February and March 1992, Respondent and the agents of AFGE noted above engaged in impact and implemen-tation negotiations over Respondent's revisions to performance standards for bargaining unit employees.

Between March 6 and March 12, 1992, Respondent and AFGE's agents noted above reached impasse in their negotiations over the revised performance standards.

Between March 9 and April 2, 1992, each of AFGE's agents noted above filed a request for assistance with the Federal Service Impasses Panel (FSIP or Panel) concerning the negoti-ations. No performance standards were in effect from October 1, 1991 through May 31, 1992.

Respondent's official appraisal period is based on the fiscal year, from October 1 through September 30, and its minimum appraisal period is 120 days pursuant to 5 C.F.R. § 430.205(b). In order to comply with 5 C.F.R. § 430.205(a) and (b) (1992) standards had to be in place by June 1, 1992 to allow for a 120 day appraisal period for fiscal year 1992.

On June 1, 1992, Respondent implemented its revised performance standards.

The Panel issued its Decision and Order on September 30, 1992 in Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Headquarters Office, Field Office Component, Office of Program Integrity and Review, and Program Service Centers and Council 215, Local 1923, Council 220, National Council of SSA Field Assessment Locals, and National Council of Social Security Payment Center Locals, American Federation of Government Employees, AFL-CIO, Case Nos. 92 FSIP 95, 102, 104, 114, and 126 (1992) (HHS and Council 215).

Respondent implemented the Panel's decision on October 30, 1992.

Discussion and Conclusions

Respondent implemented its revised performance standards while an impasse in negotiations over the impact and implemen-tation of the standards was pending before the Panel. Accord-ingly, unless the Respondent can affirmatively support its assertion that the action was consistent with the necessary functioning of the agency, the Respondent's implementation violated section 7116(a)(1), (5), and (6) of the Statute. See Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466, 467-69 (1985) (ATF). As the Authority stated in ATF, 18 FLRA at 469:

It should be emphasized that the foregoing policy requiring maintenance of the status quo to the maximum extent possible once the Panel's processes have been timely invoked would not preclude agency management from taking action which alters the status quo to the extent that such action is consistent with the necessary functioning of the Agency. Thus, such policy also is consistent with and furthers the intent of Congress set forth in section 7101(b) of the Statute that the provisions of the Statute be interpreted in a manner consistent with the requirement of an effective and efficient Government. [footnote omitted]

Among other arguments,(1) Respondent asserts that the necessary functioning of the agency required it to comply with the law and regulations essentially when and how it did so. Respondent claims it updated its performance standards during 1991 to comply with 5 U.S.C. § 4302(b)(1) which mandates that "each appraisal system shall provide for - (1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance. . . ."(2) Respondent also points out that 5 U.S.C. § 4302(b)(2) required it to inform each employee "at the beginning of the appraisal period" of the standards that will be used to evaluate his/her performance.(3) Respondent's minimum appraisal period is 120 days pursuant to Office of Personnel Management (OPM) regulation 5 CFR § 430.205(b) (1992).(4) Therefore, in order to give most employees an annual rating in 1992, as required by OPM regulation 5 CFR § 430.205(a) (1992),(5) Respondent had to implement standards on June 1, 1992 to provide the minimum appraisal period of 120 days. Other periods could not have been implemented under the circumstances.

Respondent maintains that its only realistic choice other than the one it made was to violate the appraisal law by not evaluating employees at all for fiscal year 1992 and risk a deterioration of employee performance in an Agency whose primary function is to assure the financial security of millions of elderly, dependent, and disabled Americans. Respondent points out that the employee appraisals based on performance standards are the basis for all significant personnel management decisions, including training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees, 5 U.S.C. § 4302(a)(3). Not to have appraised employees on September 30, 1992 would not only have violated the law and regulations, but it would have seriously hindered the Agency's functions.(6) Respondent claims that using the three-year old standards would not have fulfilled the appraisal law's mandate to have standards that "to the maximum extent feasible permit the accurate evaluation of job performance" under 5 U.S.C. § 4302(b)(1) and would have allowed the Union to dictate which performance standards would be used, a right clearly accorded to management.

Respondent's position that it was required to have standards in place by June 1, 1992 to comply with the law and regulations is well taken. However, Respondent acknowledges that is could have used the 1989-1991 standards for the 120 day period. The use of the 1989-1991 standards for this period would have permitted the parties to adhere to established personnel policies and practices until the Panel took whatever action was deemed appropriate. Such action would have accommodated both the requirements of the Statute and the requirement of the appraisal law that performance standards permit accurate evaluation of job performance "to the maximum extent feasible." Accordingly, Respondent has not demonstrated that the action was consistent with the necessary functioning of the agency.

It is concluded that Respondent violated section 7116(a)(1), (5), and (6) of the Statute, as alleged, by implementing revised performance standards for bargaining unit employees while the Union's request for assistance with the negotiations over the impact and implementation of the standards was pending before the Federal Service Impasses Panel.

The General Counsel requests a remedy including status quo ante relief. The General Counsel requests rescission of all performance appraisals resulting from the illegally implemented standards and that any employee adversely affected by such implementation be made whole.

After taking into consideration the factors set forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982), it is concluded that a status quo ante is not appropriate in this case. The Respondent has complied with the Panel's order subsequently issued on September 30, 1992. Cf. 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, 44 FLRA 1098 (1992). In addition, Respondent has represented, without refutation, that (1) appraisals for an overwhelming majority of employees either stayed the same or improved; (2) that the number of appraisal grievances remained about the same in 1992 compared to 1991; (3) that approximately 500 more employees received awards based on the 1992 appraisals than the 1991 appraisals; and (4) that in excess of $1,000,000 more was given to employees in 1992 than in 1991. Respondent has also pointed out that a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the Agency's operations by requiring the (1) rescinding of the 1992 revised performance standards for over 48,000 employees and replacing them with the old standards; (2) rescinding the appraisals for all 48,000 employees and reissuing appraisals based on the old standards; (3) recovering over $22 million in award money based on the appraisals, which was paid out in November and December 1992; (4) reissuing award money based on the old standards; (5) rescinding all promotions (about 3,300) and reassignments (about 1,800) made in fiscal year 1993 based on the 1992 appraisals; and (6) rescinding all within-grade increases based on the level of competency determinations using the 1992 appraisal data (about 20,000).

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:

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 the Department of Health and Human Services, Social Security Administration, shall:

1. Cease and desist from:

(a) Unilaterally implementing revised personnel standards for bargaining unit employees while requests of agents of the American Federation of Government Employees, AFL-CIO, the exclusive representative of a unit of its employees, for assistance with a negotiation impasse over the impact and implementation of the matter is pending before the Federal Service Impasses Panel.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its facilities, where bargaining unit employees represented by Council 215, Local 1923, Council 220, and the National Council of Social Security Payment Center Locals, American Federation of Government Employees, AFL-CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commis-sioner 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 of the Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, October 29, 1993

______________________________
GARVIN LEE OLIVER
Administrative Law Judge

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally implement revised personnel standards for bargaining unit employees while requests of agents of the American Federation of Government Employees, AFL-CIO, the exclusive representative of a unit of our employees, for assistance with a negotiation impasse over the impact and implementation of the matter is pending before the Federal Service Impasses Panel.

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

________________________________
(Activity)

Date:_____________ 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037, and whose telephone number is: (202) 653-8500.




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


Authority's Footnotes Follow:

1. FCI states, in relevant part:

[T]he appropriateness of a status quo ante remedy must be determined on a case-by-case basis, carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy. Accordingly, in determining whether a status quo ante remedy would be appropriate in any specific case involving a violation of the duty to bargain over impact and implementation, the Authority considers, among other things[:] (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedu