Social Security Administration, Bureau of Hearings and Appeals (Respondent) and American Federation of Government Employees, Local 3615 (Complainant)  

 2 FLRA No. 27
 
 SOCIAL SECURITY ADMINISTRATION,
 BUREAU OF HEARINGS AND APPEALS /1/
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 3615
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08933(CA)
 
                            DECISION AND ORDER
 
    ON JULY 19, 1979, ADMINISTRATIVE LAW JUDGE EDWIN S. BERNSTEIN ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
 ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS
 WITH RESPECT 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 RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  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 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,
 INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
 /2/
 
    THE AUTHORITY AGREES WITH THE ADMINISTRATIVE LAW JUDGE THAT THE
 RESPONDENT'S CHANGE IN THE LOCATION OF THE FLEXTIME SIGN-IN/SIGN-OUT
 SHEETS DID NOT HAVE ANY SUBSTANTIAL IMPACT ON PERSONNEL POLICIES,
 PRACTICES OR GENERAL WORKING CONDITIONS.  THE RESPONDENT'S CONDUCT WITH
 REGARD THERETO WAS NOT VIOLATIVE OF THE ORDER EVEN THOUGH IT WOULD HAVE
 BEEN BETTER PRACTICE AND MORE CONDUCIVE TO SOUND AND STABLE LABOR
 RELATIONS HAD THE RESPONDENT ADVISED THE COMPLAINANT OF THE PROPOSED
 CHANGE AND DISCUSSED ANY RELATED PROBLEMS, PRIOR TO MAKING ANY CHANGE.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-8933(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 13, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    ALBERT B. CARROZZA, ESQ.
 
    AFGE LOCAL 3615
 
    P.O. BOX 147
 
    ARLINGTON, VIRGINIA 22210
 
                            FOR THE COMPLAINANT
 
    JULIAN BROWNSTEIN, ESQ.
 
    OFFICE OF HEARINGS AND APPEALS
 
    P.O. BOX 2518
 
    WASHINGTON, D.C.  20013
 
                            FOR THE RESPONDENT
 
    BEFORE:  EDWIN S. BERNSTEIN
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
    ON MARCH 30, 1978, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (THE
 UNION) FILED A COMPLAINT AGAINST SOCIAL SECURITY ADMINISTRATION, OFFICE
 OF HEARINGS AND APPEALS (THE ACTIVITY).  THE COMPLAINT ALLEGED THAT THE
 ACTIVITY VIOLATED SUBSECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491,
 AS AMENDED (THE EXECUTIVE ORDER).  THE COMPLAINT DESCRIBED THE ALLEGED
 UNFAIR LABOR PRACTICE AS FOLLOWS:
 
    ON FEBRUARY 3, 1978, AN AGENT FOR THE ACTIVITY, MS. JENKINS, CHANGED
 THE ESTABLISHED
 
    FLEXTIME POLICY FOR APPROXIMATELY 50 MEMBERS OF THE BARGAINING UNIT.
 THE CHANGES WERE
 
    IMPLEMENTED WITHOUT NOTICE TO THE UNION, AND THE UNION WAS NOT
 AFFORDED AN OPPORTUNITY TO
 
    MEET, CONFER, AND NEGOTIATE OVER THE CHANGES.  THE CHANGES ADVERSELY
 AFFECTED THE MEMBERS OF
 
    THE BARGAINING UNIT BECAUSE THE ACTUAL FLEXTIME SHEETS WERE
 MAINTAINED OUTSIDE THE SPECIFIED
 
    AREA.  THE CHANGES WERE SUBSTANTIAL AS THEY AFFECT THE STARTING AND
 ENDING TIMES FOR ALL
 
    AFFECTED EMPLOYEES IN THE CONGRESSIONAL AND PUBLIC INQUIRY SECTION,
 BHA.  THE AGENCY REFUSED
 
    TO MEET WITH THE LOCAL CONCERNING THESE CHANGES AFTER THE UNION MAKE
 A REQUEST FOR A MEETING
 
    IN THE INFORMAL CHARGE.
 
    PURSUANT TO A NOTICE OF HEARING DATED NOVEMBER 15, 1978, A HEARING
 WAS HELD BEFORE ME IN WASHINGTON, D.C., ON FEBRUARY 5 AND 6, 1979.  BOTH
 PARTIES WERE REPRESENTED BY COUNSEL, EXAMINED AND CROSS-EXAMINED
 WITNESSES, PRESENTED EVIDENCE, AND WERE GIVEN THE OPPORTUNITY TO FILE
 POST-HEARING BRIEFS. UPON THE ENTIRE RECORD, I MAKE THE FOLLOWING
 FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
 
                             FINDINGS OF FACT
 
    BY INSTRUCTION DATED JULY 15, 1976 AND EFFECTIVE JULY 19, 1976, THE
 ACTIVITY INSTITUTED A "FLEXTIME" PROGRAM WHICH ENABLED ITS EMPLOYEES TO
 START WORK AT ANY TIME BETWEEN 6:30 AND 9:30 A.M. AND LEAVE EIGHT AND
 ONE-HALF HOURS LATER.  THE INSTRUCTION, READ IN PART:
 
    "III.  TIMEKEEPING
 
    A.  SIGN-IN/SIGN-OUT SHEETS
 
    THE USE OF SIGN-IN/SIGN-OUT (SI/SO) SHEETS TO RECORD THE THE WORKING
 HOURS OF ALL EMPLOYEES
 
    WHO WILL PARTICIPATE IN THE EXPANSION WILL BEGIN ON THE FLEXTIME
 COMMENCEMENT DATE, IN
 
    ACCORDANCE WITH THE BHA FLEXTIME PROPOSAL APPROVED BY SSA (SEE
 ATTACHMENT).  THE FOLLOWING
 
    PROCEDURES REGARDING THE USE OF SI/SO SHEETS WILL BE OBSERVED.
 
    1.  THE SUPERVISOR OR ACTING SUPERVISOR WHO IS ON DUTY AT THE START
 OF THE MORNING FLEXIBLE
 
    BAND (6:30 A.M.) WILL BE RESPONSIBLE FOR THE MORNING MAINTENANCE OF
 THE DAILY SI/SO
 
    SHEETS.  THE SHEETS WILL BE ON A CLIPBOARD EITHER ON THE SUPERVISOR'S
 DESK.  ATTACHED TO THE
 
    CLIPBOARD WILL BE THE NAME AND ROOM NUMBER OF THE DUTY SUPERVISOR
 RESPONSIBLE FOR THE
 
    MAINTENANCE OF THE SHEETS DURING THE AFTERNOON FLEXIBLE BAND (3:00 TO
 6:00 P.M.)."
 
    THE ACTIVITY'S CONGRESSIONAL AND PUBLIC INQUIRY SECTION (CPIS)
 CONSISTS OF FOUR UNITS - A, B, C AND THE TELEPHONE OFFICE BUILDING IN
 ARLINGTON, VIRGINIA.  THE CENTER PORTION OF THE FLOOR CONTAINS
 ELEVATORS, STAIRS AND WASHROOMS.  UNITS A AND B OCCUPY ONE END WHILE
 UNIT C AND THE TELEPHONE UNIT ARE AT THE OTHER END.
 
    AT FIRST THE SIGN-IN/SIGN-OUT SHEETS FOR EACH UNIT WERE PLACED NEAR
 THAT UNIT'S SUPERVISOR'S DESK.  AS TIME PASSED, THE ACTIVITY NOTED THAT
 OFTEN EMPLOYEES ARRIVED BEFORE AND LEFT AFTER THEIR SUPERVISORS AND
 THEREFORE SUPERVISORS COULD NOT VERIFY THE TIMES OF ACTUAL ARRIVAL AND
 DEPARTURE OF EMPLOYEES.
 
    TO ALLEVIATE THIS CONDITION, BY NOTICE DATED MAY 2, 1978, EFFECTIVE
 THAT DAY, THE ACTIVITY PLACED THE SHEETS FOR ALL FOUR UNITS IN THE
 VICINITY OF THE DESK OF MS. ERMA BROUSE, THE TELEPHONE UNIT'S SUPERVISOR
 FROM 6:30 A.M. UNTIL THE UNIT'S SUPERVISOR ARRIVED AT WORK.  MISS BROUSE
 USUALLY ARRIVED AT WORK AT 6:30 A.M. EACH DAY.  WHEN A UNIT SUPERVISOR
 LEFT WORK, HE WOULD LEAVE THE SHEET FOR HIS UNIT IN THE SECTION CHIEF'S
 OFFICE.
 
    THE UNION COMPLAINED THAT IN MOVING THE SHEETS THE ACTIVITY
 INSTITUTED A SUBSTANTIAL CHANGE IN POLICY AND VIOLATED THE EXECUTIVE
 ORDER BY FAILING TO MEET AND CONFER WITH THE UNION AND NEGOTIATE OVER
 THE CHANGE.
 
    THE UNION AND ITS WITNESSES TESTIFIED THAT MOVING THE SHEETS CAUSED
 EMPLOYEES TO WALK ADDITIONAL DISTANCES AND ALSO MADE THEM FEEL THAT THEY
 WERE NO TRUSTED.
 
    BETWEEN 6:30 AND 9:30 A.M. THE SHEETS FOR UNITS A, B, AND C WERE
 PLACED ON MS. BROUSE'S DOOR, WHICH WAS LEFT OPEN, WHILE THE SHEET FOR
 THE TELEPHONE UNIT REMAINED ON MS. BROUSE'S DESK.  THE UNIT C PEOPLE
 THUS WALKED ABOUT 40 ADDITIONAL FEET AS A RESULT OF THE CHANGE AND THE
 UNIT A AND B PEOPLE WALKED ABOUT 140 ADDITIONAL FEET.  MOST WITNESSES
 INDICATED THAT THEY COULD WALK THAT 140 FEET IN 30 TO 45 SECONDS.  THE
 MOVEMENT OF THE SHEETS TO THE SECTION CHIEF'S OFFICE AT THE END OF THE
 DAY RESULTED IN AN ADDITIONAL WALKING DISTANCE FOR UNIT A AND B
 EMPLOYEES OF LESS THAN 50 FEET AND FOR UNIT C AND THE TELEPHONE UNIT
 EMPLOYEES OF ABOUT 140 FEET.
 
                            CONCLUSIONS OF LAW
 
    ALTHOUGH IT IS WELL ESTABLISHED THAT MANAGEMENT VIOLATES ITS
 OBLIGATION TO MEET AND CONFER UNDER SECTION 11(A) OF THE EXECUTIVE ORDER
 WHEN IT UNILATERALLY CHANGES TERMS AND CONDITIONS INCLUDED WITHIN THE
 AMBIT OF THAT SECTION, AS STATED BY THE ASSISTANT SECRETARY, IT IS
 EQUALLY CLEAR THAT SECTION 11(A):
 
    ". . . IS NOT INTENDED TO EMBRACE EVERY ISSUE WHICH IS OF INTEREST TO
 AGENCIES AND
 
    EXCLUSIVE REPRESENTATIVES AND WHICH INDIRECTLY MAY AFFECT EMPLOYEES.
 RATHER, SECTION 11(A)
 
    ENCOMPASSES THOSE MATTERS WHICH MATERIALLY AFFECT, AND HAVE A
 SUBSTANTIAL IMPACT ON PERSONNEL
 
    POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS."
 
    DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD, TEXAS AIR NATIONAL GUARD,
 TEXAS AIR NATIONAL GUARD, CAMP MABRY, AUSTIN, TEXAS, A/SLMR 738(1976).
 ACCORD, DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, A/SLMR
 805(1977);  SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
 APPEALS, A/SLMR 979(1978).
 
    APPLYING THE ABOVE PRINCIPLE, I FIND THAT THE ACTIVITY'S CHANGE IN
 THE LOCATION OF THE SIGN-IN/SIGN-OUT SHEETS IN THIS CASE DID NOT
 CONSTITUTE A CHANGE THAT HAD ANY SUBSTANTIAL IMPACT ON ANY PERSONNEL
 POLICIES, PRACTICES OR GENERAL WORKING CONDITIONS.  THEREFORE, SINCE THE
 UNION HAS FAILED TO PROVE A VIOLATION OF THE EXECUTIVE ORDER, THE
 COMPLAINT SHOULD BE DISMISSED.
 
                              RECOMMENDATION
 
    THE COMPLAINT SHOULD BE DISMISSED.
 
                            EDWIN S. BERNSTEIN
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUL 19 1979
 
    WASHINGTON, D.C.
 
    /1/ THE NAME OF THE RESPONDENT WAS AMENDED AT THE HEARING.
 
    /2/ 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 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 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 HAVE BEEN REACHED BY THE AUTHORITY IF THE CASE HAD
 ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.