16:0740(103)CA - HHS, SSA and AFGE -- 1984 FLRAdec CA
[ v16 p740 ]
16:0740(103)CA
The decision of the Authority follows:
16 FLRA No. 103
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 23-CA-1974
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
General Counsel filed exceptions to the Judge's Decision and the
Respondent filed an opposition thereto.
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 herein.
The complaint alleged that the Department of Health and Human
Services, Social Security Administration (Respondent) violated section
7116(a)(1) and (5) of the Statute by (1) unilaterally implementing a
requirement that Hearing Clerks work on a regular rotational basis for
an Administrative Law Judge (ALJ) other than the one to whom the Clerk
is normally assigned, and (2) refusing, when requested, to negotiate
with the American Federation of Government Employees, AFL-CIO (Union),
concerning the impact and implementation of the rotational system.
In agreement with the Judge's conclusion, the Authority finds that
the Respondent was under no obligation to bargain over the impact and
implementation of the rotational system. In so finding, the Authority
notes that where an agency, in exercising a management right under
section 7106 of the Statute, changes conditions of employment of unit
employees, there is no statutory duty to negotiate if such change
results in an impact or reasonably foreseeable impact on unit employees
which is no more than de minimis. U.S. Government Printing Office, 13
FLRA No. 39 (1983) and Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA No. 174 (1984). The
Judge applied a test of "substantial impact" to find that there was no
duty to bargain over the impact of the change. Relying on the factors
stated by the Judge, the Authority reaches the same conclusion, finding
that no duty to bargain existed because the impact of the change on
bargaining unit employees was no more than de minimis.
Accordingly, the Authority shall order that the complaint be
dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 23-CA-1974 be, and it
hereby is, dismissed.
Issued, Washington, D.C., December 5, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No.: 23-CA-1974
Thomas J. Lee, Esq.
Stephen A. Sunshine, Esq.
For the Respondent
Herbert Collender
For the Charging Party
Steven Sharfstein, Esq.
For the General Counsel
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 charge filed February 9, 1981, with the
Federal Labor Relations Authority. Consequently, on May 29, 1981, the
Regional Director issued a complaint /1/ alleging that the Department of
Health and Human Services, Social Security Administration, in violation
of Sections 7116(a)(1) and (5) of the Statute, unilaterally implemented
a requirement that Hearing Clerks work on a regular basis for an
administrative law judge other than the one to whom the Clerk is
normally assigned, and that it refused to negotiate with the American
Federation of Government Employees, AFL-CIO, concerning the impact of
and procedure for implementing that requirement. Respondent denies
those allegations.
A hearing was held on August 18, 1981, in New York City. All parties
were afforded full opportunity to examine witnesses, to introduce
evidence, and to file briefs. Upon the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings, conclusions, and recommended order:
Findings of Fact
The top management official at the Manhattan Office of Respondent's
Office of Hearings and Appeals is Lawrence P. Ashley, the Administrative
Law Judge in Charge. Judge Ashley supervises an office consisting of
about 10 or 11 administrative law judges, each of whom has a permanent
staff comprised of a hearing assistant and one, or sometimes two,
hearing clerks. A Hearing Clerk is also known as a Mag Card Operator.
/2/ The usual practice at the Office is for the administrative law
judge, the hearing assistant and the hearing clerk or clerks to function
as one unit. However, on certain occasions, when the need arises, a
clerk may do work for another administrative law judge on a temporary
basis. Examples of this temporary shifting of staff resources include
(1) reduction in work load because the regular administrative law judge
for whom the clerk works is on annual or sick leave, (2) assistance
given to low productivity employees by high productivity employees, and
(3) extra work sought by conscientious employees for possible incentive
awards.
Judge Ashley faced a staffing dilemma in January 1981.
Administrative Law Judge Pfeiffer had transferred from the San Francisco
Office to the Manhattan Office but, due to a shortage of Mag Card
Operators and a freeze on hiring, no Mag Card Operator was available for
permanent assignment to him. After deliberating, Judge Ashley
determined that, in order to provide minimal loss of staffing support
for the so-called permanent judge and to provide maximum staffing
utilization for Judge Pfeiffer, he would devise and institute a
rotational system under which Mag Card Operators would work on a
part-time basis for Judge Pfeiffer. Judge Ashley issued two memorandums
in January establishing the rotational system. /3/ The Union was given
no separate notification of the implementation of the rotational system,
although Union Stewart Carlos Ortiz-Vasquez received copies of the two
memorandums in his capacity as a Mag Card Operator. /4/ By letter dated
January 23, 1981, Mr. Ortiz-Vasquez requested, as shop steward, that
Judge Ashley discuss the two memorandums with him. Judge Ashley did not
accede to the request.
Although Hearing Clerks perform a number of administrative and
clerical functions in addition to typing, they typically spend between
24 and 32 hours per week on the Mag Card machine. While production of
cases tends to be heavier at the end of each month, the judges for whom
the witnesses worked produced from 30 to 55 cases per month. Depending
on the length of a decision, it is possible for a Mag Card Operator to
type from two to five decisions in a four hour period. While there is
some dispute as to whether Hearing Clerks are busy for a full 40 hours
each week, it is clear that when case production becomes heavy at the
end of the month, overtime is often required to complete typing on those
cases before the end of the month deadline is reached.
The rotation system requires that each of nine Mag Card Operators
work for Judge Pfeiffer once each month for four hours. The duties they
perform for Judge Pfeiffer are the same as for their regular
administrative law judges. Judge Pfeiffer produces 13 cases per month
and the production figures for the other administrative law judges have
not changed since the implementation of the rotation system. Of course
when Mag Card Operators are working for Judge Pfeiffer, they are not
available to perform the non-typing duties which might be required by
their regular administrative law judges.
Mag Card Operators worked overtime before Judge Pfeiffer transferred
to the Manhattan Office and they continued to work overtime after his
transfer. Some believe that working for Judge Pfeiffer is the reason
for the need to work overtime while others have apparently cut down on
their overtime because they do not wish to work for an administrative
law judge other than their regularly assigned one. /5/
Discussion and Conclusions
There is no dispute in this case that the decision to institute the
rotational system was a non-negotiable management right to assign and
direct employees and to assign work under Sections 7106(a)(2)(A) and (B)
of the Statute. The only question remaining is whether there is an
obligation to bargain over the impact and implementation of that
decision under Sections 7106(b)(2) and (3). That obligation is
dependent upon a showing that the change in working conditions has
resulted in or may reasonably be expected to result in a substantial
impact on employees. /6/ I find that such a showing has not been made.
The major thrust of the General Counsel's case is that by requiring
employees to work for Judge Pfeiffer, Respondent caused a backlog in
their regular work which necessitated overtime in order to meet
production deadlines. /7/ However, the record does not demonstrate that
employees, generally, are working any more overtime now than they were
prior to the institution of the rotational system. There is an
indication, in fact, that some employees may even be working less
overtime than they did before. What is clear is that the production
levels in the Office have not diminished since the two memorandums were
issued in January 1981 and that monthly deadlines have continued to be
met.
Under the rotational system, each of 9 Mag Card Operators is to work
4 hours each month in order to type, collectively, the 13 decisions
which are written each month by Judge Pfeiffer. Since they each spend
an average of 112 hours per month on the Mag Card machine, only 3.6% of
their time would be devoted to Judge Pfeiffer's work, assuming they
found it necessary to expend the entire 4 hours per month. However, the
mathematics of this case would indicate that the maximum extent of Judge
Pfeiffer's work requirements is even less than 3.6% of each Clerk's
time. The evidence indicates that from two to five decisions can be
typed in a four hour period. This means that any one decision takes
from 48 minutes to two hours to type. At the least then, it would take
10.4 hours to type his 13 decisions, or, at the longest, 26 hours. At
any rate, the time requirement is certainly less than the 36 hours
budgeted each month and to be split among nine Mag Card Operators. In
fact, those figures suggest that at the most, each Mag Card Operator
would have to devote 2.8 hours per month (2 1/2% of the Operator's
monthly machine time) or, at the least, 1.16 hours per month (slightly
over 1% of monthly machine time) in order to complete all of Judge
Pfeiffer's work.
Under the circumstances, I conclude that the additional workload
brought about by the rotational system is of such limited magnitude and
is so sufficiently diffused among the workforce that its imposition does
not have a substantial impact on employees. Nor am I persuaded on this
record that any impact which it may have is, in any event, adverse. The
Office manager testified that some of the Mag Card Operators
"consistently depend on overtime as an economic means" and that, in
those cases, denial of overtime becomes a problem with which he has to
deal.
Having found and concluded that the evidence is insufficient to
demonstrate a violation of the Statute as alleged, I recommend that the
Federal Labor Relations Authority issue the following:
ORDER
ORDERED, that the complaint in Case No. 23-CA-1974 is dismissed.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: December 4, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ At the hearing, Counsel for the General Counsel moved to amend
the Complaint to delete another allegation originally contained in the
Complaint. Because the parties were able to reach a settlement on that
matter, the motion was unopposed and it was granted from the Bench.
/2/ Although the record does not indicate the precise nature of a
"Mag Card" machine, one may infer that the evidence that it is a species
of automatic typewriter or word processor.
/3/ The rotational system was designated as temporary but,
apparently, staffing and hiring conditions had not changed up to the
time of hearing in this case as the system was still in effect.
/4/ Judge Ashley believed the matter to be a non-negotiable
management right.
/5/ Except for the testimony of Veronica Bullard and Shirley Montanez
that they worked an unspecified number of overtime hours because of
their work for Judge Pfeiffer, the testimony as to overtime was vague,
general and based on hearsay with no basis offered for finding it
reliable. No overtime records were introduced and it is impossible to
conclude from the record whether overtime has increased or decreased
since Judge Pfeiffer's transfer to the Office.
/6/ Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 5 FLRA No. 45 (March 20, 1981);
Department of Health and Human Services, Social Security Administration,
Chicago Region, Case No. 5-CA-482, OALJ-81-162 (August 28, 1981).
/7/ Counsel for the General Counsel also alleges that there was an
effect on employee evaluations since work performed for Judge Pfeiffer
was not evaluated. However, the record does not demonstrate, nor does
Counsel argue specific adverse effects which could occur. The employees
were still to be evaluated by their regular administrative law judges
who were aware of, and voiced no complaint about, the rotational system.