[ v15 p614 ]
The decision of the Authority follows:
15 FLRA No. 132 SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO Charging Party Case No. 3-CA-20154 DECISION AND ORDER The Administrative Law Judge issued the attached Decision 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. The General Counsel filed exceptions to the Judge's Decision. 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 ORDERED that the complaint in Case No. 3-CA-20154 be, and it hereby is, dismissed. Issued, Washington, D.C., August 28, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- John J. Barrett, Esquire Ronald Blavatt, Esquire For the Respondent Sharon Prost, Esquire For the General Counsel Ms. Elaine M. Minnick For the Charging Party Before: LOUIS SCALZO Administrative Law Judge DECISION This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the Statute"), and the Rules and Regulations issued thereunder. The Complaint alleges that on or about October 1, 1981, the Respondent unilaterally discontinued the established past practice of providing periodic physical examinations for bargaining unit employees assigned to Respondent's Baltimore, Maryland Headquarters, and represented by American Federation of Government Employees, Local 1923, AFL-CIO (Charging Party or Union); and further that such conduct involved unfair labor practices within the meaning of Sections 7116(a)(1) and (5) of the Statute. During the course of the hearing counsel representing the General Counsel stipulated that the allegations of the complaint related solely to alleged discontinuance of periodic follow-up physical examinations for employees with more than two years of service, and that it was not contended that initial examinations provided for employees with more than 18, or less than 24 months of service, were discontinued by the Respondent (Tr. 100-102). Also, there was no issue concerning the Respondent's willingness to negotiate with the Union concerning a new program proposed by Respondent to replace the follow-up physical examination program (General Counsel's Brief at pages 7-8). The Respondent contended that the collective bargaining agreement governing the relations of the parties at the time provided for subsequent scheduling of follow-up physical examinations after the first two years of service, "in accordance with good medical practice," and further that current medical thinking provided a basis for a determination that follow-up examinations were not in accord with "good medical practice." Relying on this contention counsel argued that the case essentially involved differing interpretations of the collective bargaining agreement, and that these issues should have been resolved through the grievance and arbitration procedure provided in the agreement. The parties were represented by counsel during the hearing and were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Post-hearing briefs were received from counsel representing the General Counsel and counsel representing the Respondent. Based upon the entire record herein, including my observations of the witnesses and their demeanor, the exhibits and other relevant evidence adduced at the hearing, /1/ and the briefs filed, I make the following findings of fact, conclusions and recommendations. Findings of Fact The parties stipulated that Respondent's practice of providing follow-up physical examinations after the first two years of employment was discontinued on or about October 1, 1981 (Tr. 99-102). The record disclosed that from September 15, 1977 through the year 1981, and a portion of 1982, the parties were governed by a collective bargaining agreement which provided for periodic physical examinations in specific terms (G.C. Exh. 2, Article 13, Section C(2) at page 67). Article 13, Section C(2) of the agreement reflects the following: The Administration will make every effort to make comprehensive physical examinations available to employees who wish to participate in the program. Employees will be scheduled to participate in the program after 18 months but before 24 months of continuous Federal service. Subsequent physical examinations will be scheduled in accordance with good medical practice. /2/ On August 30, 1979, the American Federation of Government Employees, AFL-CIO, was certified as the exclusive representative for a consolidated nationwide bargaining unit consisting of 211 previously separate units within the Social Security Administration, including bargaining unit employees represented by the Charging Party at Social Security Administration Headquarters Bureaus and Offices of the Baltimore Metropolitan Statistical Area. Negotiations leading to a nationwide collective bargaining agreement commenced on June 10, 1980, and concluded on December 21, 1981. A nationwide agreement was signed in June of 1982. However, after consolidation, and before execution of the nationwide agreement, the Respondent and the Charging Party were governed by the local collective bargaining agreement which became effective on September 15, 1977 (G.C. Exh. 2). /3/ Unlike the local agreement entered into by the Respondent and the Charging Party in September of 1977, the nationwide collective bargaining agreement does not provide for physical examinations, but instead indicates that issues relating to health service needs would be resolved by the parties through future cooperation. It provides: Section 6 - Identification of Local Health Service Needs The Administration and the Union recognize the need and agree to cooperate in identification of local health service needs, such as emergency treatment of illness or injury on the job, periodic testing for early detection of chronic diseases or disorders, immunization programs, periodic medical examination programs and health education (G.C. Exh. 10). /4/ Early in 1980, Dr. David Fouts, a Medical Officer assigned to Respondent's Division of Employee Health and Occupational Safety, began to examine what he considered "the questionable utility and quality" of the practice of providing physical examinations for bargaining unit employees represented by the Charging Party, with a view toward improvement in terms of detection and prevention of disease (Tr. 125). The record disclosed that Dr. Fouts had extensive background and experience in medical specialties relating to preventive medicine, and employee occupational health and safety (Tr. 140-143). Dr. Fouts' study continued into the early part of 1981 (Tr. 125). He reached the conclusion that from a medical standpoint, it would be better to discontinue periodic follow-up physical examinations being provided, than it would be to continue offering them according to the practice followed by the Respondent for a number of years (Tr. 151). He recommended that Respondent focus on specific problems related to exposure in the work place, or specific diseases posing special problems; that a change in the program would make more sense from a medical point of view; and also noted that numerous other institutions or authorities had recently reached similar conclusions concerning physical examinations of the type in question (Tr. 150-152). According to his evaluation, periodic follow-up examinations of the type in issue were a waste of time and money (Tr. 153). Dr. Fouts' recommendations were based upon a statistical analysis of medical records relating to bargaining unit employees examined under the program in place at Respondent's headquarters offices, and were related to his close involvement with the administration of physical examinations provided for bargaining unit employees herein involved. He also relied upon a study of medical literature in the John Hopkins University Medical School Library (Tr. 145-146, 148-149, 152). /5/ He concluded that medical literature also provided a basis for a determination that routine periodic follow-up medical examinations should be discontinued. James Smith, then Program Manager for the Division of Occupational Health and Safety, reached an identical conclusion based upon a study of medical literature and the statistical study of medical records relating to bargaining unit employees (Tr. 134-135). Based upon the evidence gathered and conclusions reached, Dr. Fouts and Mr. Smith endeavored to persuade representatives of the Charging Party, during a meeting in June of 1981, that follow-up examinations should be discontinued and that the Union should accept a new program based upon Respondent's perception of "good medical practice." Failing in this Respondent sought to engage the Charging Party in negotiations concerning the composition of the alternative program proposed (Tr. 37-38, 127-129, 137-138). The alternative program, entitled "New Directions for SSA Health Program," was presented to the Charging Party at the meeting (Tr. 90, 93, G.C. Exh. 11). It would have involved specific examinations designed to detect and/or prevent cancer, hypertension, glaucoma, allergies, diabetes; and other health related measures. The Union took the position that the periodic follow-up physical examination program should not be changed (Tr. 38). Harold D. Roof, President of the Charging Party expressed this position in a July 2, 1981 memorandum to the Respondent (G.C. Exh. 5). In the memorandum he noted that the Charging Party refused to waive rights accorded the Union under Article 13, Section C of the collective bargaining agreement then in effect, and further that Article 13 was then being considered in connection with negotiations designed to reach a nationwide agreement based upon the consolidated bargaining unit established on August 30, 1979. By memorandum dated August 31, 1981, the Respondent took steps to cancel requisitions designed to procure examining physicians (G.C. Exh. 3). On September 1, 1981 representatives of the Respondent and Charging Party met to discuss the issue. Again, the Respondent endeavored to persuade the Charging Party to accede to discontinuance of periodic follow-up examinations, and to adopt the alternatives proposed. However, the Respondent was still not willing to negotiate the issue of discontinuance of follow-up examinations. The Charging Party opposed discontinuance and insisted that the issue would have to be negotiated. By letter dated September 23, 1981, the Respondent advised the Charging Party that "contemporary research and current medical opinion hold that there is little value in performing repetitive routine physical examinations" (G.C. Exh. 12). The letter indicated that follow-up physical examinations for Respondents' headquarters employees would not be made available because they were not deemed to be in accord with good medical practice. The Charging Party responded by letter dated October 5, 1981, insisting that the Respondent had no right to discontinue the practice (G.C. Exh. 7). The letter also indicated that discontinuance constituted a breach of the collective bargaining agreement. It contained the following statement: It is obvious that while the September 23, 1981 letter indicates compliance with the General Agreement, the evidence in our possession supports non-compliance with the General Agreement and the Civil Service Reform Act. /6/ By letter dated November 17, 1981, addressed to the Charging Party, the Commissioner of Social Security reiterated the Respondent's position as follows: We acknowledge the fact that follow-up examinations have been conducted in the past. However, Article 13, Section C.2. of the General Agreement states that 'Subsequent physical examinations will be scheduled in accordance with good medical practice.' Current medical thinking based on evidence gathered from various medical studies is that routine physical examinations do little to promote the health of those examined. Medical experts have also found that the results of these examinations often yield little information that the patient is not already aware of or would not be discovered through some other medical protocol. Therefore, we believe that our decision to discontinue repetitive or follow-up examinations is in accordance with good medical practice as it exists today and at the same time is consistent with the terms of the General Agreement. We will, of course, continue to offer physical examinations to headquarters employees after 18 months and before 24 months of continuous Federal service (G.C. Exh. 8). Discussion and Conclusions It is well settled that alleged unfair labor practices which essentially involve differing and arguable interpretations of a negotiated agreement, as distinguished from alleged actions which constitute clear and patent breaches of a negotiated agreement, are not deemed to be violative of the Statute. In such cases the aggrieved party's remedy lies within the grievance and arbitration procedures in the negotiated agreement rather than through unfair labor practice procedures. Iowa National Guard and National Guard Bureau, 8 FLRA No. 101 (1982), 8 FLRA 500; Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71 (1982), 8 FLRA 307; U.S. Patent and Trademark Office, 3 FLRA No. 123 (1980), 3 FLRA 824; Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (1980), 3 FLRA 512; Department of the Navy, Naval Weapons Station, Concord, California, 1 FLRA No. 13 (1979), 1 FLRA 133. The gravamen of the charge and the complaint lies in the contention that the Respondent breached Article 13, Section C(2) of the collective bargaining agreement. In fact, counsel representing the General Counsel places heavy reliance upon an interpretation of this contractual provision, and argues that the conduct herein was "flagrantly, inconsistent with and in breach of the clear contract language" (Tr. 201). /7/ It is not possible to reach the conclusion argued by counsel representing the General Counsel without rendering an interpretation of the collective bargaining agreement governing the labor relations of the parties. Moreover, the record does not reflect that Respondent's conduct constituted a clear and patent breach of Article 13, Section C(2). It is at least arguable that the language utilized imposed a condition upon the continuation of the program, that is, the condition that such follow-up examinations be scheduled only so long as making them available accorded with "good medical practice." Put another way, the language of the contract might be construed as evidence that the parties envisioned reliance upon the existence of a "good medical practice" basis for continuation of the follow-up physical examination program. Without making any finding here as to what constitutes "good medical practice," it is noted that the record reflects that the Respondent relied upon what was deemed to be "good medical practice," as a basis for proposed changes and discontinuance; and further that there was a clear difference of position as to whether the proposed changes and discontinuance were justified from a medical standpoint. As noted, if the Respondent was breaching the agreement it is not at all clear that the breach was clear and patent. Moreover, even assuming the existence of a breach, it cannot be concluded under the circumstances presented that Respondent's decision to insist upon a modification of the program to conform to Respondent's perception of "good medical practice," constituted a rejection of the collective bargaining agreement in violation of the Sections 7116(a)(1) and (5). It is necessary that such a finding be made in order to base an unfair labor practice on the breach. U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA No. 47 (1982), 10 FLRA 251; Kaiserlautern American High School, Department of Defense Dependents Schools, Germany North Region, 9 FLRA 28 (1982), 9 FLRA 184. In the context of a grievance and subsequent arbitration proceeding, Respondent's position might have been interpreted as one upholding the intent of the parties to the collective bargaining agreement. Similarly, this case may be distinguished from those wherein a unilateral suspension of the entire collective bargaining agreement was found to have violated sections 7116(a)(1) and (5). Veterans Administration Hospital, Danville, Illinois, 4 FLRA No. 59 (1980); Great Lakes Program Service Center, Social Security Administration, Department of Health and Human Services, Chicago, Illinois, 9 FLRA No. 58 (1982), 9 FLRA 499. The record in this case justifies a finding that this case does not involve a simple discontinuance of the follow-up physical examination program, but rather an unsuccessful effort on Respondent's part to make that program more nearly conform to what Respondent deemed to be "good medical practice." The Respondent's rejection of the follow-up examination program, and the Union resistance to the change proposed may or may not have been justified. This issue should have been resolved under the grievance and arbitration procedures in the collective bargaining agreement governing the parties. Although it is true that the Respondent did provide follow-up physical examinations for a number of years, the examinations made available were provided under the provisions of collective bargaining agreements. It should be noted this is not a case involving issues of whether or not a past practice developed into a term and condition of employment. This contention completely overlooks the existence of the underlying contractual dispute. Accordingly, legal principles governing cases relating to whether a past practice has ripened into a term and condition of employment, and cases relating to the duty to bargain at the exclusive level of recognition following a consolidation of units, are inapplicable. Upon the basis of the foregoing, it is recommended that the Authority issue the following Order pursuant to 5 C.F.R. 2423.29(c). ORDER IT IS HEREBY ORDERED, that the complaint in Case No. 3-CA-20154, be, and it hereby is, dismissed. LOUIS SCALZO Administrative Law Judge Dated: January 21, 1983 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Under the authority provided in Section 2423.19(r) of the Regulations, 5 C.F.R. 2423.19(r), the following corrections are made in the hearing transcript: Page Line Change To 166 16 "locate" "negotiate" 168 6 "22" "11" 181 2 "tighten up" "tie this up to" 201 6 "3" "C" 210 7 "fact" "face" /2/ Prior collective bargaining agreements governing the parties going back to at least August 31, 1972 contained nearly identical language (Tr. 52-53). As noted, a stipulation entered into the record reflects that no issue is raised concerning initial physical examinations provided to bargaining unit employees during the six-month period preceding completion of two years of continuous service. /3/ See Section 2422.2(h)(8), 5 C.F.R. 2422.2(h)(8). The record also reflects that the parties agreed to be so governed (General Counsel's Brief at page 2, and Tr. 81, 83-84). The complaint also alleges that the unilateral termination of the practice of providing periodic physical examinations occurred while the issue relating to such examinations was subject to negotiations at the agency level, the level of exclusive recognition; and further that the Respondent refused to elevate this issue to the level of exclusive recognition for negotiations. However, there is no indication in the record that the Respondent refused to negotiate on any issue at the level of exclusive recognition. Although not significant for the purpose of resolving issues posed in this case, it is noted that counsel representing the General Counsel argues that the Respondent refused to raise the issue to the agency level for bargaining purposes, while at the same time contending that the issue was made the subject of bargaining at the agency level. /4/ This provision suggests that both parties recognized that a change had in fact occurred with respect to Respondent's making provision for periodic follow-up physical examinations, as they are not specifically provided for in the agreement. /5/ Dr. Fouts did acknowledge the existence of contrary medical opinions on cross-examination by counsel representing the General Counsel (Tr. 153). Other cross-examination reflects an attempt to probe into Respondent's reliance upon the concept of "good medical practice" as a basis for the change (Tr. 133, 135-137). However, the brief filed on behalf of the General Counsel acknowledges that "the utility of periodic examinations may have been the subject of some good faith doubt in the minds of several individuals at SSA. . . . " (General Counsel's Brief at 16). /6/ Mr. Roof's letter clearly indicates that Respondent's conduct was seen as a breach of the collective bargaining agreement. Mr. Roof's testimony also suggests that the Respondent's action was perceived as a breach of the collective bargaining agreement (Tr. 83). /7/ Heavy reliance is placed on the lengthy period of time during which follow-up examinations were provided, and on the first sentence of Article 13, Section C(2), which states that, "The Administration will make every effort to make comprehensive physical examinations available to employees who wish to participate in the program." It is argued that no special significance should be accorded the final sentence of Article 13, Section C(2) which provides that, "(s)ubsequent physical examinations (after the initial examination) . . . be scheduled in accordance with good medical practice." Thus, in order to resolve this case it would be necessary to determine the relative weight to be accorded the first sentence in the paragraph, and the meaning to be attributed to the final sentence. Counsel representing the General Counsel argues that "good medical practice" might justify the scheduling of follow-up examinations more frequently; but that the nature of such examinations is frozen by the terms of the collective bargaining agreement and the practice of the parties. Counsel does not accept the possibility that the nature and makeup of follow-up examinations might be subject to change based upon "good medical practice," or that they might be discontinued altogether for medical reasons generated over a period of years as a result of changes in medical thinking (General Counsel's Brief at 15).