15:0922(174)CA - HHS, SSA, Chicago Region and AFGE -- 1984 FLRAdec CA

 15 FLRA No. 174
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION
 CHICAGO REGION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-482
 
                            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.  Thereafter, the
 Charging Party 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 Recommended Order, as modified below.
 
    The complaint alleges, in substance, that the Department of Health
 and Human Services, Social Security Administration, Chicago Region
 (Respondent), violated section 7116(a)(1) and (5) of the Statute by
 unilaterally changing terms and conditions of employment and by refusing
 to bargain concerning the impact and implementation of the change.
 
    As noted by the Judge, prior to January 1979, a practice existed for
 the Claims Representative who initiated and adjudicated a claim for
 Supplemental Security Income Benefits to transpose the information from
 the claims folder onto a computer input form.  An 8080 document, the
 computer generated printout of the input information, was transmitted
 back to the initiating District or Branch Office for review by a Claims
 Representative in order to verify if the information which had reached
 the agency computer system agreed with the information in the claims
 folder.  The 8080 document could be reviewed by the same Claims
 Representative who had initiated and adjudicated the claim.  In December
 1978, the Social Security Administration Central Office issued a Program
 Manual System (POMS) instruction which changed the above system by
 mandating that effective January 1, 1979, the review of an 8080 document
 could only be done by a Claims Representative or an authorized employee
 other than the person who authorized the initial claim input.
 
    The new 8080 review procedures was finally implemented in
 Respondent's Chicago Region on February 19, 1980.  By letter dated March
 5, 1980, the Union requested to bargain with the Respondent;  the
 Respondent refused such request on April 1, 1980, asserting, among other
 things, that no change in the employees' working conditions had occurred
 that was sufficient to require negotiation.
 
    The Judge, in dismissing the complaint, found that the Respondent was
 under no obligation to bargain over the substance of the change in
 working conditions.  In so finding, the Judge concluded first, without
 exception by either party, that the substance of the change in the 8080
 review procedure involved the exercise of a nonnegotiable management
 right under section 7106(a) of the Statute because it related to the
 agency's internal security practices.  Next, in applying a "substantial
 impact" test, the Judge concluded that the Respondent's December 1978
 Program Manual instruction which separated the 8080 review from the
 authorization function did not constitute a substantial change in
 working conditions sufficient to require bargaining over the impact and
 implementation of the change on bargaining unit employees.  For purposes
 of his decision, the Judge defined the term "substantial" as meaning
 something more than trivial or de minimis.
 
    Subsequent to the issuance of the Judge's Decision herein, the
 Authority, in U.S. Government Printing Office, 13 FLRA No. 39 (1983),
 stated that:
 
          Where an agency, in exercising a management right under section
       7106 of the Statute, changes conditions of employment of unit
       employees, the statutory duty to negotiate comes into play if the
       change results in an impact upon unit employees or such impact is
       reasonably foreseeable.  In such circumstances, where an agency
       exercises a management right but has failed to provide adequate
       prior notice thereof to the exclusive representative of its
       employees or has rejected a timely request for negotiations
       pursuant to section 7106(b)(2) and (3) of the Statute, the agency
       will be found to have violated section 7116(a)(1) and (5) of the
       Statute.
 
    The Authority also noted that:
 
          This is not to say that an agency is required to notify the
       exclusive representative of its employees every time it decides to
       exercise a management right under section 7106 of the Statute.
       Thus, where the exercise of a management right has not changed
       conditions of employment so as to have an impact on bargaining
       unit employees and such impact cannot reasonably be foreseen,
       management's failure to have provided prior notice thereof to the
       exclusive representative will not be found to have violated
       7116(a)(1) and (5) of the Statute. . . .  Id. at note. 4
 
    In other words, the Authority rejected the "substantial impact" test
 /1/ which had been first enunciated under Executive Order 11491, as
 amended.  /2/ In so doing, however, the Authority also indicated and now
 specifically reiterates that no duty to bargain arises from the exercise
 of a management right that results in an impact or a reasonably
 foreseeable impact on bargaining unit employees which is no more than de
 minimis.
 
    In the instant case, as previously stated, the Judge found that the
 Respondent's December 1978 Program Manual System instruction which
 merely separated the 8080 review from the authorization function by the
 same person did not constitute a change in working conditions sufficient
 to require bargaining and recommended dismissal of the complaint.  The
 Authority agrees.  We find that the resultant as well as the reasonably
 foreseeable impact of the change in working conditions on bargaining
 unit employees was de minimis and therefore the Respondent had no
 statutory obligation to provide the Union with prior notice of, and an
 opportunity to bargain with respect to, the change.  In this regard, the
 Authority particularly notes, as found by the Judge, that the new
 instruction had no effect on the grade qualification, work functions, or
 other working conditions of the Claims Representatives.  Further, as
 found by the Judge, the General Counsel did not establish by record
 evidence that the new instruction changed the way reviews were
 distributed, fraud investigations were conducted, or errors were
 reported to supervisors.  As management's change pursuant to section
 7106 of the Statute had only a de minimis impact on the working
 conditions of bargaining unit employees, management was under no
 obligation to bargain over the impact and implementation of such change.
 
    Accordingly, the Authority shall order that the complaint be
 dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 5-CA-482 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., August 31, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Daniel H. Green
    For the Respondent
 
    Charles R. Prock, Esq.
    For the General Counsel
 
    John Harris, on brief
    For the Charging Party
 
    Before:  ALAN W. HEIFETZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
 of an unfair labor practice charged filed April 10, 1980, with the
 Federal Labor Relations Authority.  Consequently, on February 20, 1981,
 the Regional Director of the Authority issued a complaint alleging that
 the Department of Health and Human Services, Social Security
 Administration, Chicago Region, violated 5 U.S.C. 7116(a)(1) and (5) by
 unilaterally changing terms and conditions of employment.  A hearing was
 held on June 9, 1981 in Chicago, Illinois.  All parties were afforded
 full opportunity to examine witnesses and to introduce evidence.  Post
 hearing briefs were timely filed and have been considered.  /3/ Upon the
 entire record, including my observation of the witnesses and their
 demeanor, I make the following findings, conclusions and
 recommendations:
 
                             Findings of Fact
 
    Within the Social Security Administration, when an initial
 determination has been made that an individual is eligible or ineligible
 for Supplemental Security Income Benefits, a computer generated printout
 of the information upon which the determination was made is transmitted
 back to the District or Branch Office which initiated the claim.  This
 printout, the SSA-8080, is used to verify that the information in the
 claims folder, which has been compiled by a Claims Representative, who
 adjudicates the claim and transposes the information on a computer input
 form, agrees with the information which has reached the agency's
 computer system.  Prior to December 1978, the "8080" could be reviewed
 by the Claims Representative who had initiated and adjudicated the
 claim.  However, in December 1978, a Program Manual System (POMS)
 instruction was issued from the Central Social Security Administration
 Office requiring a change in the 8080 review procedure effective January
 1, 1979.  That change mandated that the review of an 8080 document could
 only be done by a claims representative or authorized employee other
 than the person who authorized the initial claims input.  The procedure
 was changed in order to deter fraud.
 
    The new 8080 review procedure was not immediately implemented in
 Respondent's Chicago Region in order to request clarification on the
 POMS instruction.  The region was concerned about potential grade impact
 on the GS-10 claims representatives and it questioned whether there
 wasn't sufficient security without the change.  Those concerns were
 apparently alleviated because the change was finally implemented in the
 Chicago Region on February 19, 1980, a year later than implementation
 throughout the rest of the Country.  The Regional Commissioner's
 memorandum implementing the change noted that the separation was made
 for security reasons.  It also stated:
 
          We are aware that the procedure may cause workflow problems for
       some offices.  However, it is felt that the security gained by the
       separation outweighs the temporary problems some offices may
       experience implementing the procedure.
 
    By letter dated March 5, 1980, the Union requested to bargain with
 Respondent over the change.  By letter dated April 1, 1980, Respondent
 declined this request asserting that the matter was outside the scope of
 bargaining because it concerned internal security and that no change in
 working conditions of employees had occurred that was sufficient to
 require consultation and negotiation.
 
                        Discussion and Conclusions
 
    It is clear from the outset (and Counsel for the General Counsel does
 not make any serious argument to the contrary) that the substance of the
 change in the 8080 review procedure for reasons of the agency's internal
 security practices is a non-negotiable management right under Section
 7106(a) of the Statute.  The only question remaining is whether there is
 an obligation to bargain over the impact and implementation of that
 change.  That obligation, in turn, depends upon a showing that the
 change has resulted in or may reasonably be expected to result in a
 substantial impact on employees.  /4/ The burden is the same whether the
 issue arises under Section 7106(b)(2) or 7106(b)(3) of the Statute.  /5/
 Whether one focuses on the procedures for exercising a management
 prerogative or on appropriate arrangements for adversely affected
 employees, the broad reach of this remedial statute does not extend to
 changes which are trivial or to changes whose impact on employees are
 trivial.  If collective bargaining is to be meaningful, the issues to be
 bargained over must be real and not illusory;  of some import and more
 than de minimis;  and hence, of some substance and, in that context,
 substantial.  /6/
 
    Based on the facts of this case, I find that Respondent's December
 1978 Program Manual System instruction which separated the 8080 review
 from the authorization function did not constitute a substantial change
 in working conditions sufficient to require bargaining over the
 procedures which the Respondent would observe in exercising its
 authority to issue that instruction.
 
    Prior to December 1978, it was possible to separate the review
 function from the authorization function.  The only change in the POMS
 instruction was that such a separation would become mandatory.  The
 record fails to demonstrate that making that separation mandatory had
 any substantial impact on the working conditions at Respondent's
 facilities.
 
    Counsel for the General Counsel argues (1) that review of the 8080
 was changed from one that was cursory to one that was adjudicative;  (2)
 that an adjudicative review takes significantly more work time;  (3)
 that the separation of review function has potential impact on grade
 qualification;  (4) that there are inconsistencies in the implementation
 of the new 8080 instruction;  (5) that an impact has been made on rights
 of employees in fraud investigations;  and (6) that employee relations
 are adversely affected because one employee may have to report errors of
 another to a supervisor.
 
    Respondent has convincingly countered those allegations with record
 evidence which is unrebutted.  That record does not warrant a finding
 that the nature of the 8080 review was changed from cursory to
 adjudicative.  /7/ Certainly the instruction itself makes no mention of
 any change in the nature of the review to be performed.  In fact, one
 portion of the instruction which was not changed indicates that
 adjudicative review has always been required.  Section 11010 of the
 instructions provides:  "In reviewing the 8080 message, insure that the
 claimant has been paid properly and the SSR is errorfree." And since an
 adjudicative review has always been required, it is of no consequence
 that a cursory review might take less time.
 
    Grade qualification for the pertinent claims representative is
 dependent upon the initial authorization function and not any review
 function.  Although the regional office initially had some question as
 to whether there would be any affect on grade qualification, that
 question was answered in the negative by the Central Office and there is
 no evidence on this record that there would be any impact, actual or
 potential, on grade determination.  /8/ The work functions of a claims
 representative have not changed as a result of the new instruction.
 Prior to that instruction, claims representatives adjudicated claims and
 they reviewed 8080 documents.  After the instruction was issued, they
 continued to adjudicate claims and to review 8080 documents, except that
 the 8080's were not their own.
 
    Counsel for the General Counsel's last three arguments all must be
 rejected for similar reasons.  The record does not demonstrate that
 mandatory cross-review of 8080's changed the way reviews were
 distributed, fraud investigations were conducted or errors were reported
 to supervisors, when those cross-review were done permissively.  The
 record is also silent as to how much cross-review was done prior to the
 change in instruction.  In short, the evidence shows only that the
 instruction was changed but not how the work has changed either
 qualitatively or quantitatively.
 
    Under the circumstances, I conclude that the evidence is insufficient
 to demonstrate a violation of 5 U.S.C. 7116(a)(1) and (5) as alleged,
 and, therefore, I recommend that the Federal Labor Relations Authority
 issue the following order pursuant to 5 C.F.R. 2423.29(c):
 
                                   ORDER
 
    ORDERED, that the complaint in Case No. 5-CA-482 is dismissed.
 
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
    Dated:  August 28, 1981
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See also Internal Revenue Service (District, Region, National
 Office Unit), 13 FLRA No. 61 (1983) at note 1.
 
 
    /2/ See Department of Defense, Air National Guard, Texas Air National
 Guard, Camp Mabry, Austin, Texas, 6 A/SLMR 591 (1976).
 
 
    /3/ The Charging Party's Motion to Enter an Appearance for the
 Purpose of Filing a Brief was unopposed and is hereby granted.  Its
 tendered brief has been accepted and considered.
 
 
    /4/ See Office of Program Operations, Field Operations, Social
 Security Administration, San Francisco Region, 5 FLRA No. 45 (March 20,
 1981);  and See, also U.S. Government Printing Office, Opinion of Judge
 Dowd, Case No. 3-CA-569, OALJ-81-083 (April 9, 1981).
 
 
    /5/ Section 7106(b) provides:
 
          Nothing in this section shall preclude any agency and any labor
       organization from negotiating--
 
                                .  .  .  .
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority under this section;  or
 
          (3) appropriate arrangements for employees adversely affected
       by the exercise of any authority under this section by such
       management officials.
 
    See, U.S. Government Printing Office, Id at pp. 19 and 20, where
 Judge Dowd finds substantial impact a prerequisite under both
 subsections.
 
 
    /6/ On brief, the Charging Party expresses concern that by use of the
 term "substantial," the burden of proof would extend to showing an
 impact which is "considerable" and far beyond what is trivial.  While I
 can appreciate this concern, I do not believe that the term
 "substantial" can be used in any context which relates to its use as a
 synonym for the word "massive." Lest one engage in sophistic argument,
 suffice it to say that, for purposes of this decision, the term
 "substantial" means something more than trivial.
 
 
    /7/ The testimony of the witness for the General Counsel on this
 point is not convincing, nor is his estimate that cross-review takes
 significantly longer.  He stated that it used to take only 2 or 3
 minutes to perform a review but that now, cross-review takes 5 times
 longer.  Not only does the record fail to explain why there should be
 such a great disparity, but also this contention flies in the face of
 evidence of a 1976 operations study which indicated that any review
 should take only between 5 and 7 minutes.  Even conceding that
 unfamiliarity with a file might add a minute to the review time, this
 would add only ten minutes per week based on his production of 10
 reviews per week.  Since the record does not demonstrate how many claims
 representatives were not cross-reviewing at all prior to the new
 instruction, it is impossible to determine the effect, if any, on
 employees in general.  The most I can find on this record is that one
 employee's time might be affected by ten minutes per week.
 
 
    /8/ I cannot give any weight to the testimony of Edward Hurt that one
 claims representative in an office in Michigan was authorizing all
 claims and that reviews were then done by other claims representatives.
 First, that testimony was based solely on uncorroborated double hearsay,
 and second, it just doesn't seem to make any sense.  How does one person
 generate sufficient work to keep the rest of the office busy reviewing
 that work product?