[ v16 p740 ]
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.