Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region (Respondent) and Council of District Office Locals, American Federation of Government Employees, San Francisco Region (Charging Party)
[ v05 p333 ]
05:0333(45)CA
The decision of the Authority follows:
5 FLRA No. 45
OFFICE OF PROGRAM OPERATIONS,
FIELD OPERATIONS,
SOCIAL SECURITY ADMINISTRATION,
SAN FRANCISCO REGION
Respondent
and
COUNCIL OF DISTRICT OFFICE LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
SAN FRANCISCO REGION
Charging Party
Case No. 9-CA-57
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING CONCLUDING THAT THE UNFAIR LABOR PRACTICE
COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED VIOLATION OF SECTION
7116(A)(1) AND (5) OF THE STATUTE, BE DISMISSED IN ITS ENTIRETY. THE
GENERAL COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 DECISION AND ORDER, AND THE ENTIRE RECORD IN THE CASE, INCLUDING
THE EXCEPTIONS FILED BY THE GENERAL COUNSEL AND THE CHARGING PARTY, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-57 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MARCH 20, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
WILSON G. SCHUERHOLZ
FOR THE RESPONDENT
BARI STOLMACK, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THESE CONSOLIDATED CASES AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET
SEQ., AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JANUARY
24, 1980, AND AN AMENDED COMPLAINT FILED ON MARCH 12, 1980, BY THE
REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS AUTHORITY, SAN
FRANCISCO, CALIFORNIA, AGAINST THE OFFICE OF PROGRAM OPERATIONS, FIELD
OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION
("RESPONDENT").
AT THE HEARING IN THIS MATTER, THE PARTIES REACHED A SETTLEMENT IN
CASE NO. 9-CA-56 AND A MOTION TO SEVER WAS GRANTED. THE ONLY REMAINING
ISSUE IS WHETHER RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE
STATUTE WHEN IT FAILED TO NOTIFY THE UNION OR GIVE IT AN OPPORTUNITY TO
CONSULT OR BARGAIN ABOUT THE IMPACT AND IMPLEMENTATION OF A DECISION TO
TEMPORARILY ASSIGN A BARGAINING UNIT EMPLOYEE TO A SUPERVISORY POSITION.
RESPONDENT DENIES THAT IT HAD ANY OBLIGATION TO EITHER CONSULT OR
NEGOTIATE REGARDING THIS MATTER.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT MODESTO,
CALIFORNIA. ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE
WITNESSES. BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDED ORDER:
FINDINGS OF FACT
AT ALL TIMES MATERIAL HERETO, THE COUNCIL OF DISTRICT OFFICE LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION
("UNION"), WAS RECOGNIZED BY THE RESPONDENT AS THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN EMPLOYEES IN REGION IX UNDER THE JURISDICTION
OF THE ASSISTANT REGIONAL COMMISSIONER, FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.
SUPERVISORS WERE NOT INCLUDED IN THE BARGAINING UNIT.
DURING THE PERIOD IN ISSUE, RESPONDENT'S MODESTO OFFICE HAD BETWEEN
25 AND 30 CLAIMS REPRESENTATIVES. THESE EMPLOYEES INTERVIEWED
APPLICANTS FOR SOCIAL SECURITY BENEFITS, PROCESSED THEIR CLAIMS, AND
HANDLED POST-ENTITLEMENT ACTIONS INVOLVING, E.G., CHANGES IN THE AMOUNT
OF BENEFITS AND THE NAMES OF BENEFICIARIES. A CLAIMS REPRESENTATIVE
WOULD TYPICALLY SPEND FIVE HOURS A DAY CONDUCTING INTERVIEWS.
PRIOR TO FEBRUARY 14, 1979, THE MODESTO OFFICE HAD ONE INDIVIDUAL,
DAVID DELO, ASSIGNED AS A FIELD REPRESENTATIVE. WITH CERTAIN EXCEPTIONS
NOT RELEVANT HERETO, THE LATTER PERFORMED THE SAME FUNCTIONS IN THE
FIELD (THE LOCAL COMMUNITY) THAT THE CLAIMS REPRESENTATIVES PERFORMED IN
THE OFFICE. THUS IF A CLAIMANT WAS PHYSICALLY UNABLE TO COME INTO THE
OFFICE, THE FIELD REPRESENTATIVE WOULD GO TO THE CLAIMANT'S HOME TO
CONDUCT THE INTERVIEW. HE ALSO MET THE PUBLIC ONCE A WEEK AT A SOCIAL
SECURITY "CONTACT STATION" IN A NEARBY TOWN.
FOR A LONG TIME PRIOR TO, AND AFTER, FEBRUARY 14, 1979, RESPONDENT'S
MODESTO OFFICE HAD AN ESTABLISHED PRACTICE FOR HANDLING DELO'S CLAIMS
FUNCTIONS WHENEVER HE WAS ABSENT FROM DUTY. RESPONDENT WAS AWARE OF
THE
NAMES OF ALL CLAIMS REPRESENTATIVES WHO WISHED TO SUBSTITUTE FOR DELO IN
HIS ABSENCE. AT ALL TIMES RELEVANT HERETO, ABOUT SIX CLAIMS
REPRESENTATIVES HAD INDICATED A CONTINUING DESIRE TO PERFORM THIS
FUNCTION. ON EACH DAY THAT DELO WAS ABSENT, RESPONDENT WOULD ASK A
VOLUNTEER IF HE OR SHE WOULD BE INTERESTED IN SUBSTITUTING FOR DELO ON
THAT DAY. THE OPPORTUNITY TO SUBSTITUTE WAS ROTATED AMONG THE SIX
VOLUNTEERS. THE WORKLOAD OF THESE VOLUNTEERS DID NOT INCREASE WHILE
THEY WERE SUBSTITUTING FOR DELO SINCE NO NEW WORK CAME INTO THEIR UNIT
AT THE MODESTO OFFICE WHILE THEY WERE SUBSTITUTING. ALTHOUGH THE
POSITION DESCRIPTION FOR ALL CLAIMS REPRESENTATIVES INCLUDES THIS KIND
OF TRAVEL AND FIELD WORK, IN PRACTICE ONLY THE ABOVE VOLUNTEERS AND THE
FIELD REPRESENTATIVE PERFORMED SUCH WORK.
THE FIELD REPRESENTATIVE ALSO PERFORMED SOME PUBLIC RELATIONS WORK.
HOWEVER, THE LATTER WORK WAS PERFORMED BY MANAGEMENT IN DELO'S ABSENCE.
SINCE NOT ALL OF DELO'S WORK INVOLVED CLAIMS, IT WAS ONLY NECESSARY TO
SEND A SUBSTITUTE INTO THE FIELD THREE DAYS OUT OF EACH WEEK WHEN THE
FIELD REPRESENTATIVE WAS ABSENT. ALSO, THE SUBSTITUTE WOULD ONLY HAVE
TO SPEND SIX HOURS IN THE FIELD.
WHEN ONE OF THE VOLUNTEERS WAS SUBSTITUTING FOR DELO, THE
INTERVIEWING WORK WHICH HE WOULD NORMALLY HAVE DONE IN THE MODESTO
OFFICE WOULD BE PERFORMED BY THE REMAINING 25 OR 30 CLAIMS
REPRESENTATIVES AND TEN SERVICE REPRESENTATIVES. ALSO, AT ANY TIME WHEN
THE INTERVIEWING WORKLOAD BECAME HEAVY, THE SUPERVISORS WOULD CONDUCT
INTERVIEWS WITH APPLICANTS FOR BENEFITS.
ON OR ABOUT FEBRUARY 14, 1979, RESPONDENT ASSIGNED DELO TO THE
POSITION OF ACTING OPERATIONS SUPERVISOR WITHOUT FIRST NOTIFYING THE
UNION OR GIVING IT AN OPPORTUNITY TO CONSULT OR NEGOTIATE ABOUT THE
IMPACT OR IMPLEMENTATION OF THAT ASSIGNMENT. WHEN DELO WAS SELECTED FOR
THIS DETAIL IT WAS ANTICIPATED THAT HE WOULD BE ACTING FOR ABOUT THREE
OR FOUR MONTHS. THUS THE PROMOTION WAS TEMPORARY. SOME OF THE UNIT
EMPLOYEES WERE DISSATISFIED BECAUSE THEY WERE NOT GIVEN AN OPPORTUNITY
TO COMPETE FOR THE SUPERVISORY POSITION. EVEN THOUGH IT WAS ONLY A
TEMPORARY ASSIGNMENT, THEY FELT THAT IT WOULD HAVE ENHANCED THEIR
OPPORTUNITIES TO RECEIVE A PERMANENT PROMOTION AT A LATER TIME.
CONCLUSIONS OF LAW
THE FIRST ISSUE FOR CONSIDERATION IS WHETHER THE RESPONDENT VIOLATED
SECTION 7116(A)(5) AND (1) OF THE STATUTE BY REFUSING TO NOTIFY THE
UNION OR GIVE IT AN OPPORTUNITY TO NEGOTIATE ABOUT THE PROCEDURES
OBSERVED BY RESPONDENT IN MAKING ITS DECISION TO TEMPORARILY ASSIGN
DAVID DELO TO THE POSITION OF ACTING OPERATIONS SUPERVISOR. THE GENERAL
COUNSEL RELIES UPON SECTION 7106(B)(2). THE RESPONDENT ASSERTS THAT
THIS MATTER IS OUTSIDE MANAGEMENT'S OBLIGATION TO BARGAIN UNDER SECTION
7117 OF THE STATUTE BECAUSE IT RELATES TO THE METHOD THAT MANAGEMENT
WILL USE IN FILLING A SUPERVISORY, NON-BARGAINING UNIT POSITION.
RESPONDENT'S POSITION MUST BE UPHELD IN VIEW OF THE AUTHORITY'S DECISION
IN NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT OF LABOR, WASHINGTON,
D.C., 3 FLRA NO. 44 (1980). THERE IT WAS EMPHASIZED THAT THE EXCLUSIVE
REPRESENTATIVE'S OBLIGATION AND CORRELATIVE RIGHTS EXTEND ONLY TO
EMPLOYEES IN THE BARGAINING UNIT AND THAT THE PROCEDURES FOR FILLING
SUPERVISORY POSITIONS DO NOT DIRECTLY RELATE TO CONDITIONS OF EMPLOYMENT
OF UNIT EMPLOYEES.
THE NEXT ISSUE IS WHETHER RESPONDENT SHOULD HAVE GIVEN THE UNION
NOTICE AND AN OPPORTUNITY TO BARGAIN, PURSUANT TO SECTION 7106(B)(3),
ABOUT "APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED" BY
RESPONDENT'S COUNSEL HAS THE BURDEN OF PROVING THAT BARGAINING UNIT
EMPLOYEES WERE, IN FACT, "ADVERSELY AFFECTED" AND THAT THE IMPACT WAS
SUBSTANTIAL BEFORE AN UNFAIR LABOR PRACTICE CAN BE FOUND WHERE THE
OBLIGATION TO BARGAIN IS BASED ON SECTION 7106(B)(3). A SUBSTANTIAL
IMPACT RULE EXISTED UNDER EXECUTIVE ORDER 11491. SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 3615, 2 FLRA NO. 27, (1979) REPORT NO.
23; DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD, TEXAS AIR NATIONAL
GUARD, CAMP MABRY, AUSTIN TEXAS, 6 A/SLMR 591, A/SLMR NO. 738 (1976).
IN THE LATTER CASE THE ASSISTANT SECRETARY STATED THE FOLLOWING ABOUT
SECTION 11(A) OF THE EXECUTIVE ORDER:
IN MY VIEW, IT 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. (ID. AT 591) IN
APPLYING THE ABOVE RULE TO THE STATUTE, I AM MINDFUL OF THE LEGISLATIVE
HISTORY INDICATING THAT SECTION 7106 SHOULD BE READ TO FAVOR COLLECTIVE
BARGAINING WHENEVER THERE IS DOUBT AS TO THE NEGOTIABILITY OF A SUBJECT.
H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 43-44 (1978). HOWEVER,
THERE SHOULD BE NO DOUBT THAT MANAGEMENT SHOULD NOT BE COMPELLED TO
NEGOTIATE WHERE THE EXERCISE OF ITS RIGHTS RESULTS IN AN INSUBSTANTIAL
IMPACT ON BARGAINING UNIT EMPLOYEES. /1/ TO REACH A CONTRARY RESULT
WOULD REQUIRE MANAGEMENT TO NEGOTIATE ON THE IMPACT OF DECISIONS WHERE
THE EFFECT ON UNIT EMPLOYEES IS REMOTE OR INSIGNIFICANT.
IN APPLYING THE ABOVE PRINCIPLES TO THE INSTANT CASE, I HAVE
CONCLUDED THAT RESPONDENT HAD NO OBLIGATION TO BARGAIN OR CONSULT
REGARDING THE IMPACT OF ITS DECISION TO TEMPORARILY ASSIGN DAVID DELO,
THE SOLE FIELD REPRESENTATIVE, INDIRECT EFFECT OF SETTING INTO MOTION AN
ESTABLISHED PAST PRACTICE-- WHENEVER DELO WAS ABSENT, RESPONDENT WOULD
ASK FOR VOLUNTEERS FROM THE GROUP OF CLAIMS REPRESENTATIVES TO TAKE OVER
DELO'S CLAIMS FUNCTIONS IN THE FIELD. OVER A PERIOD OF TIME ABOUT SIX
CLAIMS REPRESENTATIVES HAD VOLUNTEERED, AND IT APPEARS THAT ALL WERE
GIVEN EQUAL OPPORTUNITIES TO FILL IN FOR DELO. ONLY ONE VOLUNTEER WOULD
LEAVE THE OFFICE ON ANY PARTICULAR DAY AND THE PROCEDURE WAS IN EFFECT
ONLY THREE ON EACH OF THESE DAYS.
WITH REGARD TO THE VOLUNTEERS, THERE IS NO EVIDENCE THAT THEY WERE IN
ANY WAY "ADVERSELY AFFECTED" AS REQUIRED BY SECTION 7106(B)(3) OF THE
STATUTE. RESPONDENT HAD ALWAYS GIVEN ANYONE WHO ENJOYED GETTING OUT OF
THE OFFICE IN DELO'S ABSENCE AN OPPORTUNITY TO DO SO. WHEN THEY FILLED
IN FOR DELO THEY WERE PERFORMING ESSENTIALLY THE SAME JOB IN THE FIELD
AS THEY HAD PERFORMED IN THE OFFICE EXCEPT THAT THEY HAD AN OPPORTUNITY
TO GET OUT OF THE OFFICE FOR SIX HOURS. THEIR WORKLOAD WAS NOT
INCREASED. DELO'S THREE OR FOUR MONTH ABSENCE MERELY MEANT THAT EACH OF
THE VOLUNTEERS WOULD GET A FEW MORE OPPORTUNITIES TO TRAVEL THAN USUAL
DUE TO THE EXTENDED PERIOD; HOWEVER, NO ONE CONTENDS THAT THIS
CONSTITUTED AN ADVERSE EFFECT. MOREOVER, THEIR WORKING CONDITIONS WERE
NOT CHANGED.
I TURN NOW TO THE GENERAL COUNSEL'S PRIMARY CONTENTION THAT THE
REMAINING CLAIMS REPRESENTATIVES WERE ADVERSELY AFFECTED. IT IS TRUE
THAT WHEN ONE CLAIMS REPRESENTATIVE WAS FILLING IN FOR DELO THE MODESTO
OFFICE WOULD BE SHORT ONE PERSON. ASSUMING, FOR THE SAKE OF ARGUMENT,
THAT THE NUMBER OF SOCIAL SECURITY APPLICANTS REQUESTING INTERVIEWS
REMAINED CONSTANT, THE NUMBER OF INTERVIEWS TO BE CONDUCTED BY THE
REMAINING 25 OR 30 CLAIMS REPRESENTATIVES COULD HAVE INCREASED SLIGHTLY.
HOWEVER, THIS ADDITIONAL "BURDEN" WAS ALSO SHARED BY AN ADDITIONAL TEN
SERVICE REPRESENTATIVES; IN ADDITION, WHENEVER THE INTERVIEWING
WORKLOAD BECAME HEAVY, THE SUPERVISORS WOULD ALSO CONDUCT INTERVIEWS.
THUS ANY ADDITIONAL WORKLOAD DUE TO A MISSING CLAIMS REPRESENTATIVE
WOULD HAVE BEEN WIDELY DIFFUSED AND THE IMPACT UPON THE REMAINING CLAIMS
REPRESENTATIVES WOULD HAVE BEEN INSUBSTANTIAL.
THE GENERAL COUNSEL ALSO ARGUES THAT THE DECISION TO ASSIGN DELO TO
THE ACTING SUPERVISORY POSITION LOWERED THE MORALE OF SOME UNIT
EMPLOYEES BECAUSE THEY WERE NOT GIVEN AN OPPORTUNITY TO COMPETE FOR THE
POSITION. HOWEVER, AS PREVIOUSLY STATED, MANAGEMENT HAS NO OBLIGATION
TO BARGAIN ABOUT THE METHOD IT WILL USE IN FILLING SUPERVISORY,
NON-BARGAINING UNIT POSITIONS. NATIONAL COUNCIL OF FIELD LABOR LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT
OF LABOR, WASHINGTON, D.C., 3 FLRA NO. 44 (1980). ALTHOUGH SOME OF THE
EMPLOYEES MAY HAVE BEEN DISPLEASED, RESPONDENT'S ACTION HAD NO DIRECT
EFFECT ON THE UNIT EMPLOYEES WHO WERE NOT CHOSEN.
SINCE NO VIOLATION OF SECTION 7116(A)(5) AND (1) OF THE STATUTE HAS
BEEN SHOWN, /2/ I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING
ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-57 BE, AND
IT HEREBY IS, DISMISSED.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 12, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ AFTER THE ENACTMENT OF THE STATUTE, CONGRESSMAN FORD STATED THAT
"WHERE THE ADVERSE EFFECTS ARE 'DE MINIMUS,' NEGOTIATIONS WILL OCCUR,
BUT. . . BOTH PARTIES WILL SEE THAT THEY PROCEED WITH APPROPRIATE
DISPATCH." 124 CONG. REC. H 13607 (DAILY ED. OCT. 14, 1978).
POST-ENACTMENT STATEMENTS DO NOT CONSTITUTE EVIDENCE OF CONGRESSIONAL
INTENT. FURTHERMORE, THE CONGRESSMAN MAY HAVE BEEN REFERRING TO
SITUATIONS INVOLVING SUBSTANTIAL ADVERSE EFFECTS WHICH ARE MERELY
TRANSITORY IN NATURE; THUS THE STATEMENT DOES NOT NECESSARILY
CONTRADICT THE CONCLUSION REACHED HEREIN.
/2/ IN VIEW OF THE CONCLUSIONS REACHED HEREIN, I NEED NOT DECIDE
WHETHER THE UNION WAIVED ITS RIGHT TO NEGOTIATE AND RETAINED ONLY THE
LIMITED RIGHT TO "CONSULT."