[ v12 p704 ]
The decision of the Authority follows:
12 FLRA No. 134 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION FIELD ASSESSMENT LOCALS Charging Party Case No. 5-CA-1140 DECISION AND ORDER The Administrative Law Judge issued his Decision 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 General Counsel filed exceptions to the Judge's Decision and a brief in support thereof. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendation that the complaint be dismissed. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 5-CA-1140 be, and it hereby is, dismissed. Issued, Washington, D.C., August 30, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 5-CA-1140 Mr. Wilson G. Schuerholz For the Respondent Mr. Earl Tucker For the Charging Party Claire R. Morrison, Esquire For the General Counsel Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region Five, Federal Labor Relations Authority, Chicago, Illinois against the Department of Health and Human , Services, Social Security Administration (Respondent). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by changing the specialized experience required for a claims examiner position without notifying the American Federation of Government Employees, AFL-CIO, National Council of Social Security Administration Field Assessment Locals (Charging Party or Union) and bargaining on the additional requirement and on its impact and implementation. Respondent's Answer denied that it had made any such change or violated the Statute. A hearing was held in this matter in Chicago, Illinois. The Respondent, General Counsel, and Charging Party 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 herein, /1/ including my observation of the witnesses and their demeanor, the exhibits, other relevant evidence adduced at the hearing, and the briefs, I make the following findings of fact, conclusions of law, and recommendation. Findings of Fact At all times material herein, Respondent has maintained its principal office in Baltimore, Maryland and operated a facility at Chicago, Illinois known as the Office of the Regional Commissioner, Region V (Region Five). On August 30, 1979 the American Federation of Government Employees, AFL-CIO was certified as the exclusive representative of an appropriate unit of Respondent's employees employed at its operations, activities, facilities, areas, and districts previously represented by the Union in separate bargaining units. At all times material herein, the American Federation of Government Employees, National Council of SSA Field Assessment Locals has served as agent of the American Federation of Government Employees, AFL-CIO, acting on its behalf with respect to the bargaining unit employees at, but not limited to, the Chicago facility. Federal Personnel Manual 338-7, Subchapter 3, Qualification Standards, of May 16, 1979, provides, in part, that "Qualification standards control the movement of employees into and within the Federal service by prescribing the experience, skills, knowledges, and abilities required for filling positions. The person to be selected for any position in the competitive service (whether under the General Schedule or not) must meet the standard the OPM has established for that position." (Respondent's Ex. 9). Likewise, Federal Personnel Manual Letter 335-12, Revised Federal Merit Promotion Policy, of December 29, 1978 provides, in part, that "To be eligible for promotion or placement, candidates must meet the minimum qualification standards prescribed by the Office of Personnel Management." (Respondent's Ex. 4). The applicable Region Five Merit Promotion Plan of June 5, 1975 also has a similar provision, as follows: Minimum qualification standards prescribed by the U.S. Civil Service Commission apply to positions filled under the provisions of this plan. Eligibility for consideration will be determined by the Regional Personnel Officers or his designee. Requirements may not be modified after the promotion process is under way unless an inappropriate standard has been used through error or the Commission issues a revised standard. (Respondent's Ex. 7, p. 9). Federal Personnel Manual Supplement 330-1, Examining Practices, November 1972, provides, in part, that examination announcements shall include the qualification requirements for the position "(u)sually described in general terms." The supplement notes that complete qualification standards for general schedule positions are set forth in CSC Handbook X-118. (Respondent's Ex. 3). Federal Personnel Manual 335-12, Promotion and Internal Placement, of October 25, 1973, also states, "when it is not practicable to spell out in detail some part of this information (duties, qualifications, etc.), the announcement informs employees where the information can be obtained (for example, in the promotion plan)." (Respondent's Ex. 5). The single-agency qualification standard developed by the Civil Service Commission (CSC) in 1963 for several positions, including Social Insurance Claims Specialist (Disability), provides, in part, as follows concerning the need for specialized experience: For positions at GS-9 and above, at least 1 year of the specialized experience must have included the development, examination, investigation, adjudication, or authorization of claims for disability retirement, disability and death compensation, or administrative or other experience in the analysis, development, or review of a disability and death compensation program, or a disability retirement program. This experience must have: 1. provided a knowledge of claims analysis and adjudication, medical terms and findings, causes of diseases, treatment methods and probable results, relations of physical impairment to ability of claimant to work; and 2. demonstrated the ability to develop and evaluate pertinent medical facts and evidence and to apply and interpret laws, regulations, policies, precedents, and other criteria for disability and death cases. Such experience may have been gained in one or a combination of the following ways: the practice of law which has included to a major extent the development of disability and death or workmen's compensation claims; experience in a Federal or State workmen's compensation program; experience in a Federal or State agency, or in an insurance company administering a disability and death compensation program or disability insurance program; or experience in Government or private industry in a disability retirement or disability pension program. (Respondent's Ex. 10). The individual staffing specialist prepares the summary of qualifications for a vacancy announcement. The summary may vary from posting to posting. However, it must reference the applicable qualification standard, which is available to applicants and employees upon request. (Tr. 58-59). On or about May 4, 1979 Respondent issued a vacancy announcement for Social Insurance Claims Examiner (Disability) (Disability Reviewer), GS-993-12. The announcement referenced the CSC Handbook, X-118, GS-993 qualification standard and contained the following under specialized experience: Specialized Experience: Three years of experience in the development, examination, investigation, adjudication or authorization of claims for retirement, old-age or survivor's insurance, disability insurance, pension claims, health insurance, income maintenance, supplemental security income, and related programs or experience that provided a broad knowledge of the policies and provisions of the Social Security insurance program and an understanding of how the program is related to other social insurance programs of the Federal and/or other governments. In addition to qualify for these vacancies applicants must have had either formal disability training or one year of experience as a Social Insurance Claims Examiner (Disability). (General Counsel's Ex. 5). In late May 1979, Earl P. Tucker, Jr., president of the Charging Party and a vice president of Local 1395, contacted John D. Alcock, chief of the staffing branch of Region V of the Department of Health and Human Services, concerning the announcement. Mr. Tucker objected to the last sentence requiring "either formal disability training or one year of experience as a Social Insurance Claims Examiner (Disability)." He stated that the requirement would rule out many bargaining unit employees from qualifying for the position. (Tr 20, 64). Subsequently, Mr. Tucker confirmed his objection by letter dated May 25, 1979, noting that the requirement had not been on prior announcements and requesting that the announcement be reposted without the above statement. (General Counsel's Ex. 3). Mr. Alcock reviewed the qualification standard and determined that the standard made no reference to formal disability training as a minimum requirement. As to the requirement for one year of experience as a Social Insurance Claims Examiner, Mr. Alcock determined that, although such experience was qualifying, the announcement was too restrictive, as the standard did not limit consideration of disability claims experience to that gained in a Social Insurance Claims Examiner position. Mr. Alcock advised Mr. Tucker that the announcement would be amended to remove the statement. (Tr. 65-67; General Counsel's Ex. 4). The announcement was amended to remove the objectionable last sentence, and the closing date was extended. (General Counsel's Ex. 5). The one year disability claims experience, as specified in the standard, was still required and considered in evaluating applicants for eligibility. (Tr 69). On or about December 2, 1980 Respondent issued another vacancy announcement for the same position. The CSC qualification standard was referenced as before. However, there was added under "specialized experience," the sentence, "At least one year of the specialized experience must have been in Disability Claims." (General Counsel's Ex. 7). No prior notice of this action was provided to the Union. By letter dated January 23, 1981, Donald Jones, president, AFGE Local 1395, advised Respondent that the requirement for one year of disability claims experience violated the previous agreement with the Union to delete the disability experience requirement, represented a change from past practice, and should have been negotiated with the Union. Mr. Jones made the following proposals for negotiation: 1. Posting EOO-168 (CR-238) should be withdrawn and an amended posting issued to remove any reference to a requirement for Disability experience. This would allow those employees to file who did not file previously because they did not believe they would be found eligible. 2. No appointments to the position should be made until negotiations with the Union have been complete. (General Counsel's Ex. 8). By letter dated January 29, 1981, Robert P. Flynn, field assessment officer, advised Mr. Jones, "Qualifications requirements are not matters within the discretion of FAO management and, consequently, not matters on which the FAO may negotiate." (General Counsel's Ex. 9). The requirement of one year specialized experience in disability claims excludes a large number of unit employees from qualifying for the position. Most of the work modules do not deal with disability claims or cases. Consequently, the majority of unit employees do not have disability claims experience. (Tr. 25, 26, 47). Discussion, Conclusions, and Recommendations The General Counsel and Charging Party contend that the December 2, 1980 requirement for one year of specialized experience in disability claims for the Social Insurance Claims Examiner position constituted a unilateral change in what had become an established condition of employment. As urged by Respondent, a preponderance of the evidence does not support this position. The evidence reflects that the requirement for one year of specialized experience in disability claims has been consistently required since 1963 in accordance with the CSC, now OPM, qualification standard. The understanding reached in 1979 that Respondent would delete from the May 1979 vacancy announcement the requirement for formal disability training or one year of experience as a Social Insurance Claims Examiner (Disability) did not constitute an agreed change in the minimum qualification standard for the position. It was, rather, in accordance with the standard. It was an acknowledgement that the 1979 announcement was not an accurate summary of the standard. Respondent has not imposed an additional requirement or made a unilateral change in a term and condition of employment in violation of sections 7116(a)(1) and (5), as alleged. /2/ Based on the foregoing findings and conclusions, I recommend that the Authority adopt the following Order: Order It is hereby Ordered that the Complaint in Case No. 5-CA-1140 be, and it hereby is, DISMISSED. GARVIN LEE OLIVER Administrative Law Judge Dated: November 15, 1982 Washington, DC --------------- FOOTNOTES$ --------------- /1/ The transcript is hereby corrected as set forth in the General Counsel's unopposed motion. /2/ Since no actual or contemplated change was made in conditions of employment, it is unnecessary to pass upon whether the duty to bargain in good faith would otherwise extend to the matter proposed to be bargained. See section 2424.5 of the Authority's Rules and Regulations. Cf. 182nd Tactical Air Support Group, Illinois Air National Guard, 10 FLRA No. 63 (1982).