Department of Health, Education, and Welfare, Social Security Administration, BRSI, Northeastern Program Service Center 

 1 FLRA No. 19
                                             APRIL 9, 1979
 
 MR. IRVING L. BECKER
 LABOR RELATIONS OFFICER
 SOCIAL SECURITY ADMINISTRATION
 6401 SECURITY BOULEVARD
 ROOM G-402, WEST HIGH RISE BUILDING
 BALTIMORE, MARYLAND 21235
 
                           RE:  DEPARTMENT OF HEALTH, EDUCATION, 
                                AND WELFARE, SOCIAL SECURITY 
                                ADMINISTRATION, BRSI, NORTHEASTERN 
                                PROGRAM SERVICE CENTER, A/SLMR 
                                No. 1150, FLRC No. 78A-181
 
 DEAR MR. BECKER:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AS
 SUPPLEMENTED, AND THE UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED
 CASE.
 
    IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1760 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 AGAINST THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER (THE
 ACTIVITY).  THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE ACTIVITY
 VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO PERMIT A
 UNION REPRESENTATIVE TO ATTEND A MEETING BETWEEN AN ACTIVITY MANAGER AND
 CERTAIN BARGAINING UNIT EMPLOYEES WHEREIN THE EMPLOYEES WERE INFORMED OF
 THE ACTIVITY'S DECISION TO TRANSFER CASES FROM ONE OFFICE COMPONENT TO
 ANOTHER;  AND BY REFUSING TO NEGOTIATE WITH THE UNION OVER THE PROCEDURE
 TO BE FOLLOWED IN CONNECTION WITH THIS DECISION, AS WELL AS OVER THE
 ADVERSE IMPACT OF SUCH DECISION ON THE BARGAINING UNIT EMPLOYEES.
 
    THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE (ALJ) WHO CONCLUDED, IN
 PERTINENT PART, THAT THE ACTIVITY DID NOT COMPLY WITH ITS OBLIGATION TO
 BARGAIN IN GOOD FAITH AND THEREFORE VIOLATED SECTION 19(A)(1) AND (6) OF
 THE ORDER WHEN, AFTER THE UNION SPECIFICALLY REQUESTED TO MEET AND
 CONFER, THE ACTIVITY REFUSED TO BARGAIN WITH THE UNION ABOUT THE
 PROCEDURES TO BE UTILIZED IN EFFECTUATING ITS DECISION TO TRANSFER CASES
 AND ABOUT THE IMPACT OF SUCH DECISION ON ADVERSELY AFFECTED UNIT
 EMPLOYEES.  /1/ IN REACHING THIS DETERMINATION, THE ALJ REJECTED THE
 ACTIVITY'S ARGUMENT, IN RELEVANT PART, THAT THE SHIFTING OF CASES HAD NO
 SUBSTANTIAL ADVERSE IMPACT ON BARGAINING UNIT EMPLOYEES AND THEREFORE
 DID NOT RAISE AN OBLIGATION TO BARGAIN, STATING:
 
    (THE UNION) WAS REASONABLE IN CONCLUDING THAT THE TRANSFER OF
 (ONE-THIRD OF THE OFFICE
 
    COMPONENT'S) CASES TO (ANOTHER OFFICE) MIGHT HAVE AN ADVERSE IMPACT
 ON THE (AFFECTED UNIT)
 
    EMPLOYEES . . . AND THAT THEREFORE, AS THE COLLECTIVE BARGAINING
 REPRESENTATIVE OF THESE
 
    EMPLOYEES, IT SHOULD HAVE AN OPPORTUNITY TO BARGAIN ABOUT THE
 PROCEDURES FOR IMPLEMENTING THIS
 
    TRANSFER OF CASES AND THE IMPACT OF THE DECISION . . .
 
    ACCORDINGLY IT IS CONCLUDED THAT (THE ACTIVITY) WAS OBLIGATED TO MEET
 AND CONFER ON THE
 
    PROCEDURES TO BE UTILIZED IN EFFECTUATING ITS DECISION TO TRANSFER
 CASES, WHICH, IN MY VIEW,
 
    EFFECTED A CHANGE IN EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT, AND
 ON THE IMPACT OF ITS
 
    DECISION ON ADVERSELY AFFECTED EMPLOYEES . . .
 
    IN YOUR PETITION FOR REVIEW ON BEHALF OF THE ACTIVITY, YOU ALLEGE, IN
 ESSENCE, THAT THE ASSISTANT SECRETARY'S DECISION HEREIN RAISES A MAJOR
 POLICY ISSUE AS TO WHAT CRITERIA SHOULD BE APPLIED IN ORDER "TO
 DISTINGUISH THOSE SITUATIONS WHERE A MATERIAL IMPACT ON THE UNIT OCCURS
 AND REQUIRES BARGAINING FROM THOSE SITUATIONS WHERE ONLY A 'DE
 MINIM(I)S' IMPACT ON THE UNIT OCCURS." IN A SUPPLEMENT TO YOUR PETITION
 FOR REVIEW, YOU ADDITIONALLY ASK, ". . .  WHAT ARE THE CIRCUMSTANCES
 UNDER WHICH AN AGENCY OR ACTIVITY HAS AN OBLIGATION TO MEET AND CONFER
 WITH A LOCAL UNION OVER PERSONNEL POLICIES AND PRACTICES AND MATTERS
 AFFECTING WORKING CONDITIONS AND, ONCE IT HAS BEEN ESTABLISHED THAT
 THERE IS AN OBLIGATION TO MEET AND CONFER AT A PARTICULAR LEVEL, TO WHAT
 TYPES OF PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS DOES THIS OBLIGATION OBTAIN?"
 
    IN THE AUTHORITY'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION /2/ DOES NOT MEET THE REQUIREMENTS OF SECTION
 2400.2 OF THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY
 REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.  THAT IS, THE DECISION
 OF THE ASSISTANT SECRETARY DOES NOT PRESENT ANY MAJOR POLICY ISSUE, AND
 YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION IS ARBITRARY
 AND CAPRICIOUS.
 
    THUS, YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION
 PRESENTS MAJOR POLICY ISSUES AS SET FORTH ABOVE CONSTITUTES ESSENTIALLY
 MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S CONCLUSION, BASED UPON
 THE ALJ'S FACTUAL DETERMINATIONS HEREIN, THAT THE ACTIVITY VIOLATED
 SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO NEGOTIATE WITH THE
 UNION OVER THE PROCEDURES TO BE UTILIZED IN IMPLEMENTING THE DECISION TO
 TRANSFER CASES FROM ONE OFFICE COMPONENT TO ANOTHER, AS WELL AS THE
 IMPACT OF SUCH DECISION ON ADVERSELY AFFECTED UNIT EMPLOYEES.
 ACCORDINGLY, NO BASIS FOR REVIEW IS THEREBY PRESENTED.  /3/
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
 POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
 DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
 REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2400.2 OF THE AUTHORITY'S
 TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION 2411.12 OF THE
 COUNCIL'S RULES.  ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
 DENIED, AND YOUR REQUEST FOR A STAY IS LIKEWISE DENIED.  /4/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  H. COLLENDER
 
    AFGE
 
    /1/ THE ASSISTANT SECRETARY ALSO ADOPTED THE ALJ'S CONCLUSION THAT
 THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING
 TO PERMIT THE UNION TO BE REPRESENTED AT A FORMAL DISCUSSION BY A
 REPRESENTATIVE OF THE UNION'S CHOICE.  THE ASSISTANT SECRETARY'S FINDING
 IN THIS REGARD HAS NOT BEEN APPEALED TO AND IS THEREFORE NOT BEFORE THE
 AUTHORITY FOR REVIEW.
 
    /2/ IN YOUR PETITION FOR REVIEW, YOU REQUEST THAT THE INSTANT CASE BE
 CONSOLIDATED FOR CONSIDERATION WITH DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
 SERVICE CENTER, A/SLMR 1101, FLRC 78A-136, AS BOTH CASES RAISE
 "VIRTUALLY THE SAME ISSUE." HOWEVER, IN VIEW OF THE DISPOSITION OF THE
 AGENCY'S APPEAL IN FLRC NO. 78A-136 (DECISION LETTER DENYING REVIEW
 ISSUED MARCH 1, 1979), AND IN THE INSTANT CASE, THE AUTHORITY FINDS IT
 UNNECESSARY TO PASS UPON SUCH REQUEST FOR CONSOLIDATED CONSIDERATION.
 
    /3/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, FLRC 78A-136, SUPRA
 N. 2.
 
    /4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN UNDER THE ORDER.