Social Security Administration, Tulsa District Office, Tulsa, Oklahoma (Respondent) and American Federation of Government Employees, Local 2387, AFL-CIO (Complainant)  

 1 FLRA No. 67
 
 SOCIAL SECURITY ADMINISTRATION,
 TULSA DISTRICT OFFICE,
 TULSA, OKLAHOMA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2387, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 63-8417(CA)
 
                            DECISION AND ORDER
 
    ON MARCH 9, 1979, ADMINISTRATIVE LAW JUDGE JOHN D. HENSON ISSUED HIS
 RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING
 THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
 ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 63-8317(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    IN THE MATTER OF
 
    AMERICAN FEDERATION OF
 
    GOVERNMENT EMPLOYEES,
 
    LOCAL 2387, AFL-CIO
 
                                COMPLAINANT
 
    AND
 
    SOCIAL SECURITY ADMINISTRATION
 
    TULSA, OKLAHOMA, DISTRICT
 
                                RESPONDENT
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
 AMENDED;  THE NOTICE OF HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR
 OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES
 DEPARTMENT OF LABOR;  AND THE PROCEEDING WAS CONDUCTED BEFORE THE
 ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS.  THIS DECISION,
 PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44,
 NO. 1, JANUARY 2, 1979, PAGES 7-8, IS ISSUED IN THE NAME OF THE
 AUTHORITY AND, IN ACCORDANCE WITH SEC. 2400.2 (5 C.F.R. 2400.2) OF THE
 TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY THE AUTHORITY IN
 ACCORDANCE WITH THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY FOR
 LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL REGULATIONS, PART
 201, ET. SEQ., EXCEPT THAT THE WORD "AUTHORITY" SHALL BE SUBSTITUTED
 WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN THE RULES AND
 REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.
 
    PURSUANT TO THE COMPLAINT FILED JUNE 22, 1978, BY LOCAL 2387,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (HEREINAFTER CALLED
 COMPLAINANT UNION) AGAINST SOCIAL SECURITY ADMINISTRATION, DISTRICT
 OFFICE, TULSA, OKLAHOMA (HEREINAFTER CALLED RESPONDENT).  THE REGIONAL
 ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES FOR THE KANSAS CITY REGION
 ISSUED A NOTICE OF HEARING ON COMPLAINT ON OCTOBER 6, 1978.  THE
 COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6)
 OF THE EXECUTIVE ORDER 11491, AS AMENDED.  THE GRAVAMEN OF THE
 ALLEGATION WAS THAT A MEMORANDUM ISSUED BY RESPONDENT ON JANUARY 24,
 1978, THE SUBJECT BEING "REMINDER ON TARDINESS, VISITATIONS AND BREAKS",
 CONSTITUTED A CHANGE IN WORKING CONDITIONS AND UNILATERALLY CHANGED THE
 NEGOTIATED AGREEMENT BETWEEN THE PARTIES WITHOUT AFFORDING THE
 COMPLAINANT UNION, AS THE EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO
 CONSULT, CONFER OR NEGOTIATE AS REQUIRED BY THE EXECUTIVE ORDER.
 
    A HEARING WAS HELD ON NOVEMBER 15, 1978, IN TULSA, OKLAHOMA.  ALL
 PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD AND
 TO INTRODUCE RELEVANT EVIDENCE AND TESTIMONY ON THE ISSUES INVOLVED.
 BRIEFS WERE SUBMITTED BY THE PARTIES AND HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
 ORDER:
 
                  PRELIMINARY RULING ON MOTION TO DISMISS
 
    BY LETTER DATED APRIL 17, 1978, (EXHIBIT R-4) COMPLAINANT MADE THE
 UNFAIR LABOR PRACTICE CHARGE REQUIRED BY THE ORDER AND THE ASSISTANT
 SECRETARY'S RULES AND REGULATIONS.  THE CHARGE ALLEGED THAT RESPONDENT
 VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER.  THEREAFTER A COMPLAINT
 WAS FILED ALLEGING VIOLATION OF SECTION 19(A)(1) AND (5).  THIS
 COMPLAINT WAS WITHDRAWN BY COMPLAINANT AND ON JUNE 21, 1978 UNFAIR LABOR
 PRACTICE COMPLAINT (ASSISTANT SECRETARY EXHIBIT 1) WAS FILED ALLEGING
 VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
 
    THE COMPLAINT FILED ON JUNE 21, 1978 (ASSISTANT SECRETARY EXHIBIT 1)
 DIFFERED FROM THE CHARGE FILED ON APRIL 17, 1978 IN THAT IT ALLEGED
 VIOLATION OF THE SECTION 19(A)(6) INSTEAD OF SECTION 19(A)(5).  NO NEW
 FACTS OR CONDUCT WERE ALLEGED.
 
    ON JULY 3, 1978, RESPONDENT FILED IT'S RESPONSE AND MOTION TO DISMISS
 COMPLAINT.  THE MOTION TO DISMISS WAS REFERRED TO THIS OFFICE BY THE
 ACTING REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES AT THE TIME OF
 ISSUING NOTICE OF HEARING.
 
    AT THE HEARING, RESPONDENT ARGUED THAT THE ALLEGED VIOLATION OF
 SECTION 19(A)(6) SHOULD NOT BE CONSIDERED AND SHOULD BE DISMISSED
 BECAUSE PART 203.2(B) OF THE ASSISTANT SECRETARY'S RULES AND REGULATIONS
 LIMITS THE MATTERS THAT CAN BE ADDRESSED IN THE COMPLAINT TO THE MATTERS
 RAISED IN THE CHARGE.
 
    THE PURPOSE OF PART 203.2 OF THE RULES AND REGULATIONS IS TO REQUIRE
 THE PARTIES TO ATTEMPT TO DEAL WITH THEIR DISPUTES PROMPTLY AND TO
 PREVENT STALE CHARGES FROM BEING RAISED.  IN THIS CASE, WHERE RESPONDENT
 WAS TIMELY ADVISED IN THE CHARGE AND COMPLAINT OF ALL OF THE CONDUCT
 ALLEGED TO BE VIOLATIVE OF THE ORDER AND THE COMPLAINT ONLY ADDED THE
 LEGAL CONCLUSION OF THE SECTION OF THE ORDER VIOLATED, IT IS CONCLUDED
 THAT THE TECHNICALITY COMPLAINED OF WOULD ONLY FRUSTRATE THE VERY
 POLICIES OF THE ORDER WITHOUT IN ANY WAY ACHIEVING THE PURPOSE OF THE
 RULE IN QUESTION.  DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE
 FLIGHT TEST CENTER, EDWARDS AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 255
 (MARCH 14, 1973).  IN LIGHT OF THE FOREGOING RESPONDENT'S MOTION TO
 DISMISS THE ALLEGATION THAT SECTION 19(A)(6) OF THE ORDER HAD BEEN
 VIOLATED IS DENIED.
 
                             FINDINGS OF FACT
 
    1.  COMPLAINANT IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
 EMPLOYEES OF SOCIAL SECURITY ADMINISTRATION, TULSA DISTRICT OFFICE.
 
    2.  ON JANUARY 24, 1978, RESPONDENT ISSUED A MEMORANDUM, THE SUBJECT
 BEING "REMINDER ON TARDINESS, VISITATIONS AND BREAKS";  (JOINT EXHIBIT
 2).  THE PURPOSE OF THE MEMORANDUM, AS EXPRESSLY STATED THEREIN, WAS TO
 REMIND THE EMPLOYEES OF EXISTING POLICY CONCERNING THESE AREAS OF THEIR
 EMPLOYMENT.  IT STATED IN PERTINENT PART AS FOLLOWS:  /2/
 
    3.  FOOD AND DRINK AT DESKS-- FOOD AND DRINK CAN BE TAKEN TO YOUR
 DESK DURING THE FIRST
 
    HOUR (8:00-- 9:00 A.M.).  AFTER THE DOORS FOR THE PUBLIC OPEN THEY
 ARE NOT TO BE AT
 
    DESKS.  DESKS ARE TO BE CLEARED OF FOOD AND DRINK BY 9:00 A.M.
 
    4.  BREAKS AND LUNCH-- BREAKS ARE 15 MINUTES AND ARE GENERALLY TO BE
 TAKEN NOT BEFORE 9:00
 
    A.M. NOR AFTER 3:00 P.M., UNLESS OVERTIME OF TWO HOURS OR MORE IS
 BEING WORKED BEFORE THE
 
    NORMAL WORK DAY OR TWO HOURS AFTER THE NORMAL WORK DAY IN WHICH CASE
 AN ADDITIONAL BREAK IS
 
    AUTHORIZED AT 8:00 A.M. AND AT 4:30 P.M.  LUNCH IS 30 MINUTES.
 
    3.  PRIOR TO THE ISSUANCE OF THE MEMORANDUM DATED JANUARY 24, 1978,
 RESPONDENT HAD ISSUED A MEMORANDUM DESIGNATED AS OFFICE POLICY #11
 (JOINT EXHIBIT #5).  OFFICE POLICY #11 WAS DATED JANUARY, 1972.  IT
 PROVIDED IN PERTINENT PART AS FOLLOWS:
 
                          LUNCH AND COFFEE BREAKS
 
    2.  TIME AWAY FROM DESKS FOR COFFEE BREAKS IS NOT TO EXCEED FIFTEEN
 MINUTES EACH IN THE
 
    MORNINGS AND AFTERNOONS.
 
    6.  GENERALLY, COFFEE BREAKS SHOULD NOT BE STARTED BEFORE 9:00 A.M.
 FOR MORNING BREAK OR
 
    AFTER 3:00 P.M. FOR AFTERNOON BREAK.
 
    4.  ON APRIL 5, 1976, A NEGOTIATED AGREEMENT BETWEEN THE PARTIES
 BECAME EFFECTIVE.  IT PROVIDES IN PERTINENT PART AS FOLLOWS:
 
                                 ARTICLE X
 
    SECTION B COFFEE BREAK TIME IS A PART OF THE REGULAR DUTY HOURS AND
 MAY NOT BE USED TO MAKE
 
    UP TARDINESS NOR ACCUMULATED FOR ANY PURPOSE.  EMPLOYEES WILL BE
 GRANTED ONE FIFTEEN (15)
 
    MINUTE PERIOD FOR COFFEE BREAK EACH MORNING AND AFTERNOON.  EMPLOYEES
 ARE PERMITTED TO LEAVE
 
    THE PREMISES DURING THESE PERIODS PROVIDED THEY RETURN TO THEIR DUTY
 STATIONS WITHIN THEIR 15
 
    MINUTE COFFEE BREAK.
 
    5.  THE RECORD ESTABLISHED, AND I CONCLUDE, THAT COMPLAINANT HAD
 NOTICE OF THE OFFICE POLICY CONCERNING COFFEE BREAKS AS PROVIDED IN
 OFFICE POLICY #11 AND THE EMPLOYEES REPRESENTED BY COMPLAINANT HAD
 RECOGNIZED AND SUBSTANTIALLY COMPLIED WITH THE CONDITIONS CONTAINED
 THEREIN SINCE JANUARY 1972.  PERIODICALLY, SINCE 1972, RESPONDENT HAD
 ISSUED REMINDERS TO THE EMPLOYEES AND SUPERVISORS THAT THE EXISTING
 POLICY ON BREAKS SHOULD BE OBSERVED (TR.  P. 25).  THE SUBJECT HAD ALSO
 BEEN DISCUSSED AT STAFF MEETINGS AND DISTRIBUTION OF REMINDERS MADE
 SINCE THE EFFECTIVE DATE OF THE NEGOTIATED AGREEMENT (EXHIBIT R-1).  I
 THEREFORE CONCLUDE THAT THE POLICY CONCERNING TARDINESS, VISITATION AND
 BREAKS AS SET OUT IN OFFICE POLICY #11 ISSUED IN JANUARY 1972 HAS BEEN
 UTILIZED SINCE THAT DATE AND SINCE THE EFFECTIVE DATE OF THE NEGOTIATED
 AGREEMENT OF APRIL 5, 1976.
 
    6.  MR. DEWELL TURNER, DISTRICT MANAGER OF THE TULSA OFFICE,
 ACKNOWLEDGES THAT THE MEMO DATED JANUARY 27, 1978 WAS ISSUED WITHOUT
 PRIOR NOTICE TO COMPLAINANT.
 
    7.  COMPLAINANT ARGUES THAT THE MEMO DATED 1/27/78 CONSTITUTED A
 CHANGE IN WORKING CONDITIONS AND UNILATERALLY CHANGED THE NEGOTIATED
 AGREEMENT DATED APRIL 5, 1976.
 
                            CONCLUSIONS OF LAW
 
    THE INITIAL QUESTION IS WHETHER THE JANUARY 27, 1978 MEMORANDUM
 CONSTITUTED A CHANGE IN EMPLOYMENT CONDITIONS.  I HAVE FOUND THAT THE
 POLICY CONCERNING TARDINESS, VISITATION AND BREAKS HAD BEEN IN EFFECT
 SINCE JANUARY 1972 AND AS OUTLINED IN OFFICE POLICY #11 (JOINT EXHIBIT
 5).  THE EVIDENCE ESTABLISHES TO MY SATISFACTION THAT COMPLAINANT WAS
 AWARE OF THIS POLICY SINCE THE DATE OF ISSUANCE IN JANUARY, 1972.  /3/
 IT IS FURTHER EVIDENT THAT THE EMPLOYEES SUBSTANTIALLY COMPLIED WITH
 THIS POLICY.  THE FACT THAT IT'S ENFORCEMENT BECAME LAX AT TIMES IS
 IMMATERIAL AND IN FACT PERIODIC REMINDERS, AND DISCUSSIONS IN STAFF
 MEETINGS TEND TO VERIFY THAT THE PARTIES RECOGNIZED IT'S EXISTENCE.
 
    THE COMPLAINANT ARGUES THAT THE MEMORANDUM OF JANUARY 24, 1978
 DIFFERED FROM PAST PRACTICES CONCERNING "COFFEE BREAKS".  I DISAGREE.  I
 FIND THAT THE MEMORANDUM ISSUED BY RESPONDENT ON JANUARY 24, 1978 DID
 NOT CONSTITUTE A CHANGE IN EMPLOYMENT CONDITIONS BUT RATHER, WAS A
 REAFFIRMATION OF THE LONGSTANDING POLICY ISSUED IN JANUARY 1972.
 
    COMPLAINANT FURTHER ARGUES THAT THE MEMORANDUM ISSUED ON JANUARY 24,
 1978 UNILATERALLY CHANGED THE NEGOTIATED AGREEMENT DATED APRIL 5, 1976.
 IT SPECIFICALLY OBJECTS TO THAT PORTION OF THE MEMO RELATING TO COFFEE
 BREAKS.  A REVIEW OF THE MEMO AND AGREEMENT IS NECESSARY TO RESOLVE THIS
 ISSUE.
 
    ARTICLE X SECTION B OF THE NEGOTIATED AGREEMENT PROVIDES AS FOLLOWS:
 
    "COFFEE BREAK TIME IS A PART OF THE REGULAR DUTY HOURS AND MAY NOT BE
 USED TO MAKE UP
 
    TARDINESS NOR ACCUMULATED FOR ANY PURPOSE.  EMPLOYEES WILL BE GRANTED
 ONE FIFTEEN (15) MINUTE
 
    PERIOD FOR COFFEE BREAK EACH MORNING AND AFTERNOON.  EMPLOYEES ARE
 PERMITTED TO LEAVE THE
 
    PREMISES DURING THESE PERIODS PROVIDED THEY RETURN TO THEIR DUTY
 STATIONS WITHIN THEIR 15
 
    MINUTE COFFEE BREAK."
 
    THE COFFEE BREAK PROVISIONS OF THE MEMORANDUM ISSUED ON JANUARY 24,
 1978 PROVIDES FOR 15 MINUTE COFFEE BREAKS " . . . AND ARE GENERALLY TO
 BE TAKEN NOT BEFORE 9:00 A.M. NOR AFTER 3:00 P.M., UNLESS . . . ."
 
    THE COMPLAINANT EMPHASIZED THAT THE MEMORANDUM OF JANUARY 24, 1978
 UNILATERALLY CHANGED THE NEGOTIATED AGREEMENT OF APRIL 5, 1976 IN THAT
 THE MEMO STATED THAT COFFEE BREAKS ARE GENERALLY TO BE TAKEN NOT BEFORE
 9:00 A.M. NOR AFTER 3:00 P.M., WHEREAS, THE NEGOTIATED AGREEMENT MAKES
 NO RESTRICTION AS TO THE TIME OF COFFEE BREAKS.
 
    HAVING FOUND THAT THE POLICY OF NOT TAKING COFFEE BREAKS BEFORE 9:00
 A.M. NOR AFTER 3:00 P.M. WAS AN EXISTING PRACTICE AND LONGSTANDING
 CONDITION OF EMPLOYMENT, AND CONSIDERING THE FACT THAT THE NEGOTIATED
 AGREEMENT DOES NOT ADDRESS THE ISSUE OF WHEN COFFEE BREAKS ARE
 PERMITTED, I CONCLUDE THAT THE MEMORANDUM OF JANUARY 24, 1978 DID NOT
 CONSTITUTE A UNILATERAL CHANGE IN THE NEGOTIATED AGREEMENT DATED APRIL
 5, 1976.
 
    IN CONCLUSION, I FIND THAT THE ISSUANCE, ON JANUARY 24, 1978, OF A
 MEMORANDUM CONCERNING TARDINESS, VISITATIONS AND BREAKS WHICH WAS AN
 EXISTING CONDITION OF EMPLOYMENT DID NOT CONSTITUTE A VIOLATION OF
 SECTION 19(A)(1) AND (6) OF THE ORDER.
 
                              RECOMMENDATION
 
    IN VIEW OF THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND THAT
 THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                              JOHN D. HENSON
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 9, 1979
 
    NEW ORLEANS, LOUISIANA
 
    JDH:HLS
 
    H15-B-7
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER 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 THE EXECUTIVE ORDER.
 
    /2/ AT THE HEARING, COMPLAINANT ONLY TOOK ISSUE WITH THAT PORTION OF
 THE MEMO PERTAINING TO FOOD AND DRINK BREAKS (TR. PPS. 49 AND 50).
 
    /3/ DONNA FAY MOON, INCUMBENT PRESIDENT OF THE UNION, TESTIFIED THAT
 SHE WAS GIVEN A COPY OF OFFICE POLICY "11 WHEN SHE CAME TO WORK AT THE
 DISTRICT OFFICE (TR. P.  53).