54:0444(45)CA - - SSA, Santa Rosa District Office, Santa Rosa, CA & AFGE Council 147 - - 1998 FLRAdec CA - - v54 p444



[ v54 p444 ]
54:0444(45)CA
The decision of the Authority follows:


54 FLRA No. 45

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

SANTA ROSA DISTRICT OFFICE

SANTA ROSA, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 147, AFL-CIO

(Charging Party)

SF-CA-50155

_____

DECISION AND ORDER

June 19, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent did not file an opposition to the General Counsel's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by moving an employee from one unit to another unit without first providing the Union with notice and an opportunity to bargain over the move. The Judge found the Respondent's decision to move the employee negotiable at the agency's election under section 7106(b)(1) of the Statute. The Judge determined that the Respondent did not elect to bargain over its decision and, therefore, the Respondent did not violate section 7116(a)(1) and (5) of the Statute.

In U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858 (1997) (Department of Commerce I), the Authority issued a Partial Decision and Procedural Order directing the parties in that case, those in four companion cases -- of which this case is one -- and those seeking to participate as amicus curiae to submit written responses to a series of questions concerning section 7106(b)(1) of the Statute and Executive Order 12871.(2)

Upon consideration of the Judge's decision, the entire record, and the parties' responses to the Authority's Procedural Order, we conclude for the reasons explained below that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we dismiss the complaint.

II. Background

The facts are set forth in the Judge's decision and are briefly summarized here.

The Respondent moved a bargaining unit employee, at his request, from one unit to another in the Santa Rosa District Office. Although there were some "job-related differences in the work of the two units," there was no change in the employee's job title, tour of duty, shift, general work area or equipment. Judge's Decision at 3.

Prior to the employee's move, the Union President notified the Respondent that the Union wished to negotiate over the move. The Union President "advised the Respondent" that its decision to move the employee was encompassed by section 7106(b)(1) of the Statute and, therefore, a mandatory subject of bargaining pursuant to Section 2(d) of Executive Order 12871.(3) Id. The Union requested that the Respondent take no action until bargaining was complete. Id.

The Respondent agreed to negotiate over the impact and implementation of its decision to move the employee, but "declined to bargain on the Union's section 7106(b)(1) proposal relating to the numbers, types and grades of employees doing the work." Id.

The General Counsel issued a complaint, alleging that the Respondent violated section 7116(a)(1) and (5) when it unilaterally moved a bargaining unit employee from one unit to another unit without first notifying and bargaining with the Union as required by the Statute. In particular, the complaint alleges that the President, through Executive Order 12871, exercised the Respondent's discretion to negotiate over section 7106(b)(1) subjects and, therefore, the Respondent was obligated to bargain before implementing its decision.

Applying National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), the Judge determined that the Respondent's decision to move the employee concerned matters encompassed by section 7106(b)(1) of the Statute. However, the Judge found that the Respondent did not exercise its discretion under section 7106(b)(1) of the Statute to negotiate with the Union. The Judge rejected the General Counsel's argument that, through Section 2(d) of Executive Order 12871, the President exercised the Respondent's discretion to elect to bargain over section 7106(b)(1) subjects. The Judge stated that, in view of Section 3 of the Executive Order "any dispute as to the Respondent's failure to comply with the Executive Order . . . is a matter for internal resolution within the [E]xecutive [B]ranch . . . ."(4) Id. at 6. Accordingly, the Judge recommended that the Authority dismiss the complaint.

III. Positions of the Parties (5)

Subsequent to the Authority's Partial Decision and Procedural Order in Department of Commerce I, 53 FLRA 858, the parties in this case were given an opportunity to provide written responses to a series of questions concerning section 7106(b)(1) of the Statute and Executive Order 12871. The positions of the parties, described below, include their responses to the Authority's Procedural Order that are set forth more fully in U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA No. 43, slip op. at 9-10 (1998) (Department of Commerce II). The Respondent's brief to the Authority was untimely and, therefore, has not been considered.

A. General Counsel

The General Counsel excepts to the Judge's conclusion that the President did not exercise the Respondent's discretion to negotiate pursuant to section 7106(b)(1) of the Statute. In particular, the General Counsel asserts that Section 2(d) of the Executive Order "plainly states that agencies covered by the Statute shall negotiate over [section 7106(b)(1)] subjects and that agencies shall instruct subordinate officials to negotiate over" section 7106(b)(1) subjects. Exceptions at 4. The General Counsel maintains that an agency official may not revoke the President's election to bargain under section 7106(b)(1).

The General Counsel also excepts to the Judge's conclusion that any dispute as to the Respondent's failure to comply with Executive Order is a matter for resolution in the Executive Branch. The General Counsel states that it "is not attempting to enforce any right . . . created in the Executive Order." Id. at 3. Instead, the General Counsel maintains that it is challenging the Respondent's failure "to execute its statutory duty to bargain over § 7106(b)(1) subjects." Id.

B. Charging Party

The Charging Party asserts "that the issuance of Section 2(d) of Executive Order No. 12871 constitutes a legally binding irrevocable election by each Executive Branch agency, for [s]ection 7106(b)(1) purposes, enforceable under the Statute." Charging Party's Brief in Response to the Authority's Procedural Order in Department of Commerce I at 15-16. In the Charging Party's view, "[e]ach agency subject to the President's directive is therefore subject to two nondiscretionary instructions under the Executive Order. First[,] . . . the head of each agency is directed to 'negotiate' over [s]ection 7106(b)(1) subjects. Second[,] each agency head is directed to 'instruct' subordinate officials throughout that agency to bargain on [s]ection 7106(b)(1) subjects." Id.

The Charging Party argues that the right being enforced in the unfair labor practice proceeding is a right created by the Statute, rather than the Executive Order and, therefore, the Authority has jurisdiction over this matter notwithstanding Section 3 of Executive Order 12871.

IV. Analysis and Conclusions

Our decision is governed by Department of Commerce II. In Department of Commerce II, as relevant here, the Authority affirmed its holding in VAMC, Lexington that section 7106(b) of the Statute constitutes an exception to section 7106(a). In addition, the Authority determined that Section 2(d) of Executive Order 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects. As the Authority explained, Section 2(d) of the Executive Order "unambiguously states [that it is] a direction by the President to agency officials to engage in bargaining over [the] subjects defined in the Statute." Department of Commerce II, 54 FLRA No. 43, slip op. at 28 (emphasis added). The Authority also explained that construing Section 2(d) as an internal management direction is compelled by the clear language of Section 3 of the Executive Order. Id. at 22-23. The fact that the nature of the Executive Order's direction is indeed mandatory does not, however, render it a statutory election enforceable in an unfair labor practice proceeding. Id. at 19.

In this case, the General Counsel challenges the Judge's decision on the exact same grounds as those we considered in Department of Commerce II. Therefore, for the reasons set forth fully in our decision in Department of Commerce II, 54 FLRA No. 43, we find that the Respondent was not required to bargain with the Union over the substance of its decision to move the employee from one unit to another unit.(6) Accordingly, we conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by its refusal to negotiate its decision to move the bargaining unit employee, and we dismiss the complaint.

V. Decision

The complaint is dismissed.

Opinion of Member Wasserman, dissenting:

For the reasons set forth in my separate opinion in Department of Commerce II, I respectfully dissent. I believe that the evidence supports the conclusion that the President elected to bargain on behalf of his subordinate agencies through Section 2(d) of Executive Order 12871. The Charging Party has alleged bad faith bargaining due to a refusal to negotiate over the substance of the Agency's decision to move a unit employee. I would find that the failure to bargain after the election was made constitutes an unfair labor practice which is remediable through the Authority's unfair labor practice procedures.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

SOCIAL SECURITY ADMINISTRATION

SANTA ROSA DISTRICT OFFICE

SANTA ROSA, CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, COUNCIL 147, AFL-CIO

Charging Party

Case No. SF-CA-50155

Wilson G. Schuerholz

Representative of the Respondent

Charles R. Estudillo

Representative of the Charging Party

John R. Pannozzo, Jr.

Counsel for the General Counsel, FLRA

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) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), by unilaterally moving an employee named Steve Matich from the Supplemental Security Income (SSI) Post Entitlement Unit (PE Unit) to the SSI Disability Unit (DIB Unit) without notifying and bargaining with the Charging Party (Union) to the extent required by the Statute. The complaint alleges that the Union had proposed that Respondent not implement the change, that such proposal concerned a subject set forth in section 7106(b)(1) of the Statute(1), and that by issuing Executive Order 12871, "Labor-Management Partnerships," on October 1, 1993 (58 Fed. Reg. 52201-52203, October 6, 1993) (Executive Order 12871 or Executive Order)(2), the President of the United States exercised the Respondent's discretion under section 7106(b)(1) to negotiate section 7106(b)(1) subjects, including the numbers, types and grades of employees or positions assigned to any organizational subdivision. The record establishes that the Union only wished to bargain over section 7106(b)(1) subjects and not matters relating to the impact and implemen-tation of the change.

Respondent's answer admitted the jurisdictional allegations as to the Respondent, the Union, and the charge, and that the Union requested that Respondent not implement the change, but generally denied all other allegations.

For the reasons set out below, I conclude that Respondent did not violate the Statute by refusing to negotiate pursuant to section 7106(b)(1) of the Statute. Concerning the fundamental issue presented, the Respondent has not exercised its discretion to negotiate pursuant to section 7106(b)(1), and the President's directive to the heads of agencies in Executive Order 12871 did not exercise that discretion.

A hearing was held in San Francisco, California. The Respondent, Union, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs.

Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

On October 31, 1994, the Respondent, by District Manager Randee Dimond, moved employee Steve Matich, a Title 16, SSI Claims Representative (Specialized), at his own request, from the SSI PE Unit to the SSI DIB Unit in the Santa Rosa District Office. District Manager Dimond concluded that the PE Unit was over staffed and the DIB Unit was understaffed. There was no change in Matich's job title, position description, performance standards, tour of duty, shift, general work area, or equipment, and although there were work or job-related differences in the work of the two units, work was equally difficult and available in both areas.

Prior to the move, the Union, by Charles R. Estudillo, Executive Vice President, had requested to negotiate, pursuant to Executive Order 12871 and section 7106(b)(1) of the Statute, on the decision to make the change. Mr. Estudillo advised the Respondent that "changes within the purview of the 'numbers, types and grades of employees or positions assigned to any organizational subdivision, work project . . .' are now mandatory areas of bargaining" and proposed that Respondent "not implement this change in the number of employees assigned to the DIB Unit until we have bargained to agreement." The Union's proposal was based on what it perceived to be inequities in the respective workloads of the PE and DIB Units.

District Manager Dimond offered to negotiate with the Union concerning the impact and implementation of the move, but declined to bargain on the Union's section 7106(b)(1) proposal relating to the numbers, types and grades of employees doing the work. She based her decision on guidance received from the Regional Office in San Francisco to the effect that her office had not been trained in interest-based bargaining approaches and could not go forward with bargaining over section 7106(b)(1) subjects until such training had been provided. District Manager Dimond's response to the Union did not raise the defense that the proposal was covered by other agreements.

The General Counsel's Position

In summary, the General Counsel contends that Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to bargain over section 7106(b)(1) subjects in connection with Steve Matich's October 31, 1994 move from the PE Unit to the DIB Unit. The General Counsel claims that the Union's proposal was negotiable under section 7106(b)(1) of the Statute, since it involved the "numbers, types and grades of employees or positions assigned to an organizational subdivision or work project," and, therefore, under National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386, 393 (1995) (VAMC, Lexington), it is unnecessary to analyze the proposal under section 7106(a) to determine whether it interferes with Respondent's right to assign work under section 7106(a)(2)(A).

The General Counsel asserts that by issuing Executive Order 12871, President Clinton exercised the agencies discretion and elected to bargain over section 7106(b)(1) subjects. Therefore, the Respondent could not lawfully refuse to bargain over such matters in this case. The General Counsel claims he is not enforcing Executive Order 12871, but simply enforcing the Union's statutory section 7106(b)(1) bargaining rights.

The General Counsel further maintains that the general subject matter of the Matich move was not "covered by" or "contained in" various other agreements as alleged by the Respondent, including a national partnership agreement. The General Counsel claims that, assuming that the matter is "covered by" the national partnership agreement, there was a specific reservation of a bargaining right in "Objective (8)" to immediately bargain over section 7106(b)(1) subjects.

The Respondent's Position

The Respondent presents numerous defenses to the alleged unfair labor practice. Essentially, the Respondent asserts that, under the circumstances of this case, it has not exercised its discretion to bargain under section 7106(b)(1) and, therefore, could not, and did not, violate the Statute. The Respondent contends that it did not choose to bargain in this instance because evaluation and training procedures were not in place in the Region as required by the Executive Order and the parties' national partnership agreement and, further, a section 7106(b)(1) request was on the table at the national level. The Respondent also points out that the President's Executive Order is an internal management matter and created no rights enforceable administratively or judicially.

In addition, the Respondent contends that the move was de minimis, and the Union had no right to initiate mid-term bargaining. It also asserts that the move was not a section 7106(b)(1) issue because the alleged violation occurred in a unit within the district office. Respondent contends that its formal organizational structure only extends to the district office/branch office level. Therefore, the move of the employee to a different unit did not involve an "organiza-tional subdivision," and Respondent claims that "work project" and "tour of duty" are also inapplicable under section 7106(b)(1).

Finally, the Respondent contends that the matter of moving the employee from one unit to another was "covered by" other collective bargaining agreements placed in evidence, including a July 18, 1992 reassignment memorandum of understanding, the September 10, 1991 or November 17, 1994 rotation plans, a December 21, 1994 reorganization agreement, or the national partnership agreement of June 22, 1994. (Respondent's Exhibits 1-4; General Counsel's Exhibits 10, 21.)

Discussion and Conclusions

I agree with the General Counsel that the Union's proposal, that the Respondent "not implement this change in the number of employees assigned to the DIB Unit until we have bargained to agreement," was negotiable at the Respondent's election under section 7106(b)(1) of the Statute. The Authority stated in VAMC, Lexington, that, in determining whether a proposal concerns a matter covered by section 7106(b)(1), it would "analyze whether the proposal . . . relates to: i) the numbers, types, and grades; ii) of employees or positions; iii) assigned to any organizational subdivision, work project, or tour of duty." Id., 51 FLRA at 394 (footnote omitted). The proposal here expressly involves the first two factors, the "number ... of employees assigned," and I conclude that "to the DIB Unit" comes within the third factor, the broad statutory language of "any organizational subdivision." The DIB Unit is part of the Respondent, the Santa Rosa District Office. I reject the Respondent's position that a unit of the district office is not an "organizational subdivision" because of the Social Security Administration's "formal organizational structure."

Section 7106(b)(1) makes it clear that matters concerning "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" are negotiable only at an agency's election. Under the circumstances of this case, Respondent has not exercised its discretion to negotiate the Union's section 7116(b)(1) proposal. Therefore, the Respondent did not violate section 7116(a)(1) and (5) of the Statute in this respect, as alleged.

The President of the United States did not exercise the Respondent's discretion. Executive Order 12871 at Sec. 2.(d) provides that "the head of each agency . . . shall . . . (d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]" Nevertheless, the Respondent has not exercised its discretion to negotiate pursuant to section 7106(b)(1) in this case. As the Respondent points out, Section 3 of Executive Order 12871 specifically states that the order "is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any right . . . enforceable . . . against the United States, its agencies . . ., officers or employees. . . ."

Despite the President's order to the head of each agency to negotiate section 7106(b)(1) matters, the President may agree with the Respondent's interpretation of the Executive Order and the parties' national partnership agreement in this case and conclude, for some of the same reasons advanced in this case, that such bargaining was not appropriate in this instance. In any event, any dispute as to the Respondent's failure to comply with the Executive Order to negotiate 7106(b)(1) subjects is a matter for internal resolution within the executive branch and is not an unfair labor practice under the Statute.

In view of this disposition, I find it unnecessary to resolve the additional arguments made by the Respondent in defense of this action and disputed by the General Counsel.

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

ORDER

The Complaint is dismissed.

Issued, Washington, DC, September 30, 1996

______________________

GARVIN LEE OLIVER

Administrative Law Judge




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


Authority Footnotes Follow:

1. Member Wasserman's dissenting opinion is set forth at the end of this decision.

2. Briefs were timely filed by both the General Counsel and the Charging Party. The Respondent's brief to the Authority was not timely filed and, therefore, has not been considered.

3. Section 2(d) of Executive Order 12871 provides in pertinent part:

Sec. 2. Implementation Of Labor-Management Partnerships Throughout The Executive Branch. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:

. . . .

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]

4. Section 3 of Executive Order 12871 provides:

Sec. 3. No Administrative Or Judicial Review. This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

5. The Respondent did not file an opposition. As its brief responding to the Authority's Procedural Order in Department of Commerce I was untimely, this submission has not been considered.

6. Where the substance of the decision is not itself subject to negotiation, the agency is nonetheless obligated to bargain over the impact and implementation of that decision if the resulting changes have a more than de minimis effect of conditions of employment. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986). We note that the complaint does not allege that the Respondent refused to bargain over the impact and implementation of its decision, and that the Respondent, in fact, agreed to so bargain. We also note that the General Counsel expressly stated at the hearing in this case that "[t]he Charging Party did not wish to bargain over the impact and implementation of the charge, only (b)(1) under the Executive Order 12871." Transcript at 9.


ALJ's Footnotes Follow:

1. Section 7106(b)(1) of the Statute provides, in pertinent part:

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work[.]

2. Section 2(d) of the Executive Order, provides in pertinent part as follows:

Sec. 2. IMPLEMENTATION OF LABOR-MANAGEMENT PARTNERSHIPS THROUGHOUT THE EXECUTIVE BRANCH. The head of each age