19:0622(79)CA - SSA, Baltimore, MD and AFGE Local 1501 -- 1985 FLRAdec CA
[ v19 p622 ]
The decision of the Authority follows:
19 FLRA No. 79 SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501, AFL-CIO Charging Party Case Nos. 9-CA-30259 9-CA-30297 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, exceptions to the Judge's Decision were filed by the General Counsel. 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 consolidated complaint alleges that the Respondent violated the Statute by unilaterally changing an existing condition of employment by changing the review procedure for appraisals from "desk audits" to a new review procedure with respect to employees in the South Seattle Branch Office's SSI-PE unit (Social Security Income-Post Entitlement Unit) and by failing and refusing to provide data regarding implementation of the review procedure referred to above. In agreement with the Judge's conclusion, but for different reasons, the Authority finds that the General Counsel has failed to sustain the burden of proving that the Respondent unilaterally changed a condition of employment without bargaining, as alleged in the complaint. In reaching its determination, the Authority notes specifically that the record evidence establishes that the "change" in procedures referred to in the complaint involved a decision by a new supervisor, Winn, to evaluate employees by using a continuous audit method of evaluating employee work performance (two cases per employee per week) in lieu of an annual desk audit method used by her predecessor, and, in conducting her evaluations of employee performance, to use a different case review sheet than that which had been used by her predecessor; however, the record reflects that Winn's use of a different methodology did not constitute a "change" in employees' conditions of employment. Thus, the Authority finds that while Winn used a different audit procedure and case review sheet from that used by her predecessor, her procedures nevertheless remained within the established ambit of discretion which supervisors could and did exercise within the Branch Office and other offices in the bargaining unit regarding the development of data used in employee evaluations. Further, the undisputed record evidence establishes that, while supervisors in the PE unit had not conducted continuous audits, other supervisors within the Branch Office and other offices within the bargaining unit had used continuous audits instead of desk audits and that such audits were, in fact, preferred by management over desk audits. Additionally, the Authority notes that the case review sheet used by Winn was received from the regional office and had been used by other supervisors in other offices within the bargaining unit. Thus, the Authority concludes that, as there was no change in conditions of employment with regard to the bargaining unit, the Respondent was under no obligation to bargain over such matters and that this portion of the complaint must be dismissed. See United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 13 FLRA 636 (1984), wherein the Authority determined in the absence of evidence that the Respondent's actions constituted a change in personnel policies, practices or matters affecting working conditions, that no violation of section 7116(a)(1) and (5) of the Statute had been established. Further, with regard to the allegation contained in the complaint concerning the Respondent's failure to provide the Charging Party with certain information requested by memorandum dated March 8, 1983, the Authority finds no violation. In so finding, the Authority notes that the memorandum specifically refers to a "28 Case Review" and apparently was limited to the implementation of that management report. In agreement with the Judge, the Authority finds that the 28 Case Review is an internal management reporting procedure which was exclusively used to measure unit quality and accuracy and not the quality of work of individual unit employees. Thus, it has no direct relationship to personnel policies, practices, or matters affecting working conditions of unit employees and does not concern a condition of employment. As the 28 Case Review does not concern "conditions of employment," the Authority finds that the data requested was not necessary under section 7114(b)(4) to enable the union to fulfill its representational responsibilities and therefore agency management was under no obligation to furnish such information. See American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL-CIO and Social Security Administration, Office of Field Operations, Baltimore, Maryland, 17 FLRA No. 6 (1985) (Union Proposal 4), wherein the Authority in considering the negotiability of a union proposal pertaining to an internal management report determined that the record did not establish that the proposal concerned conditions of employment of unit employees. Accordingly, the complaint herein must be dismissed in its entirety. ORDER IT IS ORDERED that the consolidated complaint in Case Nos. 9-CA-30259 and 9-CA-30297 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos.: 9-CA-30259, 9-CA-30297 Mr. Wilson Schuerholz For the Respondent Charles Askin, Esq. For the General Counsel Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case Pursuant to a Consolidated Complaint and Notice of Hearing issued on June 21, 1983, by the Regional Director for the Federal Labor Relations Authority, San Francisco, California, a hearing was held before the undersigned on August 10, 1983. This proceeding arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It resulted from charges originally filed on March 11, 1983 and amended on March 28, 1983 by American Federation of Government Employees, Local 1501, AFL-CIO (herein called the Union) against Social Security Administration, Baltimore, Maryland (herein called Respondent). The Consolidated Complaint alleges that Respondent violated the Statute by changing an existing condition of employment by changing the review procedure for appraisals from "desk audits" to a new review procedure with respect to employees in the South Seattle SSI-PE unit; and, by failing and refusing to provide information and data regarding implementation of the review procedure referred to above. Respondent's Answer denied the Commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observations of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact At all times material herein, the American Federation of Government Employees, AFL-CIO (AFGE), has been certified as the exclusive representative of a nationwide consolidated unit of employees of Respondent, including, inter alia, all employees employed within Respondent's Seattle, Washington District. At all times material herein, the Union has been an affiliate of AFGE and its agent for purposes of representing employees within the Seattle District. Mrs. Vicki Winn has been employed as the Operations Supervisor at Respondent's South Seattle Branch Office, at all times material herein and is a supervisor within the meaning of the Statute. The dispute in this matter involves from three to six employees who work in the Post Entitlement unit (PE unit), Respondent's South Seattle Branch Office under the supervision of Mrs. Winn. Employees in the PE unit are responsible for handling all issues pertaining to the eligibility of claimants to the Social Security Income (SSI) program after the eligibility, or entitlement, of the claimants had once been established and they are receiving SSI checks. Those duties include resolving issues such as redetermining a person's continued eligibility (redetermination or RZ cases), investigating excess payments to claimants (overpayment or O/P cases), investigating eligibility for persons previously determined to be disabled (continuing disability investigations or CDI cases), applications to become a payee or otherwise handle another person's benefits (Representative Payee cases), changes in living arrangements (LA cases), and other miscellaneous duties. One of the "critical elements" by which Respondent measures employees' performance in conducting these varied investigations is the effectiveness of employees' interviewing techniques. Prior to the arrival of Mrs. Winn at the South Seattle facility, the primary procedure relied upon by Respondent to substantiate its appraisals of employees in the PE unit was an annual desk audit. At the hearing, a PE unit employee Bob Gray, testified that annual audits had been utilized in connection with his appraisals the entire time he had been employed in the unit, and the personnel files of the PE unit employees reflect that one desk audit was the sole documentation regarding the quality of each employees' work performance in the year ending September 30, 1982, the last appraisal year for unit employees. The desk audit as demonstrated by the record is a comprehensive procedure utilized to review all types of work performed by the claims representative in the PE unit with a variety of forms, including an evaluation of interviewing techniques, an evaluation of past adjudicative practices, sample audit forms, and an evaluation of correspondence practices. The quality of specific cases handled by an employee is reviewed in documented form on a "review sheet" which formed one portion of the desk audit, and the review sheets were made available to each employee and then placed (with the related desk audit documentation) in the personnel file for use in the ultimate appraisal. It is undisputed that the same review sheet was utilized to assess an employee's work on a broad scope of cases handled in the PE unit, including overpayments; "8530" reviews, or quality reviews of field work; representative payee cases; specialized types of overpayment cases; 562 cases, or assistance requests, and living arrangement cases, which is a type of redetermination case. Desk audits are scheduled for a date certain and employees given two to six weeks advance notice of the audit. These audits focus upon a fixed percentage of an employee's current workload, usually consisting of 10-15 total cases and include a wide sample of numerous assigned duties. The audit focuses primarily on on-going cases investigations as opposed to closed, or completed, investigations. On March 4, 1983, in the course of a collective bargaining meeting with Union representative Mary O'Malley regarding a proposed subspecialization of the PE unit, Winn allegedly mentioned to O'Malley that Respondent was no longer performing desk audits, but instead was reviewing 28 cases per calendar quarter. Although Winn admitting at the hearing that she implemented a new review sheet to evaluate redetermination investigations in the PE unit shortly after she assumed her duties at the South Seattle facility, she denied the statement attributed to her by O'Malley. Winn characterized the meeting and statement as follows: One of the proposals that she brought up was that she wanted me to agree to do desk audits. I didn't agree to that because I felt it limited the tools that I could use to evaluate an employee. In that, I told her that I would continue to do case reviews, two cases per week reviews. She brought up the 28 case review. At that time, I told her that it was just an internal report that I write to Ruth, who gives it to Gene, it no way . . . With respect to the 28 case review procedure, Winn testified that it was used in the following manner: The District Manager, in order to monitor the office's quality and to see if there are any trends in errors, has Ruth, the Branch Manager, submit a report that has measured our quality in-house. He has said that in order for it to be statistically valid, the South Seattle Branch Office would have to look at 28 cases in a calendar quarter. Those 28 cases just happen to be the cases I've already reviewed in the 2 case per week, they are not identified by CR, it's just a listing of the name and the Social Security number of the files I reviewed and what, if any, errors. That then goes to Gene to monitor the office's, the unit's quality. Regarding any impact of the 28 case review on employees Winn stated: Q. Okay, so he is interested in how the office is doing. A. Functions as a whole, not individuals. Q. Are individual employees identified on the report? A. No, they are not. Q. Is there any way that this information would work its way back to an employee? A. I wouldn't think so, no. Q. Does this information in any way go into the SF-7B file? A. No, it doesn't. It probably goes in mine as writing up a form, I mean, I would think Ruth would document me on how I submit report(s), so yeah, it's probably in my 7B file. Q. It's not in the employees' 7B file? A. No, it's not at all. Q. Does it in any way become involved in the employees' appraisals? A. No, it doesn't. Winn also testified that the 28 case review applied to the entire office, not just the Post Entitlement SSI Unit. Also, she testified that it required no additional reviews on her part, and required nothing different in terms of her dealing with employees. Winn added: Q. Did this 28 case report, did it effect in any way how you looked at how an employee handled a case? A. No. Q. Did it effect, in any way, what you looked at in that case? A. No. Q. Did it in any way (e)ffect the number of cases that you looked at? A. No. Q. Did this 28 case report cause any change in the auditing procedure? A. No. Q. Did it effect your auditing procedure? A. No. David Boyce, who preceded Winn as the South Seattle Operations Supervisor also testified concerning the 28 case procedure. Boyce's testimony, in part, is as follows: Well, the-- primarily, it's about accuracy figures . . . the District Manager, Gene Barnes, had advised the offices to conduct at least a 28 case review to compile office statistics and this was just an office accuracy figure, it was not individual statistics . . . It wouldn't effect the employees because those cases that were reviewed would have been reviewed at any rate. The statistics derived from that are only office statistics for internal audit purposes and their individual statistics would be gathered from their own case reviews that they had done; it would not be from the total 28 cases. Boyce reiterated that this was an internal management-to-management report, with nothing going to the employees' file. Finally, the Branch Manager, Ruth Saunders, confirmed that the 28 cases per quarter were for the office, in order to give the District Manager an idea of how the branch was doing statistically. It was strictly an internal management report, not used in any way in regard to an employee. On March 8, O'Malley served upon Winn a written request to bargain with Respondent regarding "the change in auditing procedures you advised me of on 3/4/83. Specifically, the implementation of a 28 case review for employees in the SSI PE unit". In the same memorandum, O'Malley requested certain data and information prior to the submission of Union proposals, including: (1) the date the new procedure was implemented, (2) the job positions affected, (3) copies of the review sheets in use, (4) copies of any instructions regarding the implementation of the new review, and (5) any other units subject to the new review and the date those various reviews were implemented. Respondent did not answer the bargaining request or the Union's request for the above information and data. Winn states that she "felt I had already given her the information." There is considerable evidence on both sides concerning a new redetermination review sheet which Winn initiated and its effect on employee evaluations. In my review of the evidence, I find no connection between the desk audits and redetermination review and the 28 case review procedure. Since there is no connection between the above evaluation review procedures and the 28 case review procedure, I find it unnecessary to recount all of the testimony or to make factual finding in that regard. Conclusions The matter arose when Winn mentioned the "28 case review" during a bargaining session. The Union subsequently requested information concerning that procedure and although it made requests for additional information i.e. review sheets, the gravamen of this matter is that the "28 case review" somehow changed the manner in which agency management evaluated employees at the South Seattle Branch Office. The General Counsel would extend the circumstances beyond the "28 case review" and assert that a new evaluation procedure was initiated by Winn using a different redetermination review sheet and excluding desk audits. However, the record does not support such a position. The review sheet originated by Winn served the same purpose as the old review sheet and differed only to the extent that it contained PALMS or manual references. Furthermore, the record does not establish that the Branch office abandoned the use of desk audits as the primary means of evaluation. Inasmuch as the record does not establish that changes in the redetermination review sheet and desk audits occurred the remaining question concerns only a factual resolution as to whether the "28 case review" is a condition of employment within the meaning of section 7103(a)(14) of the Statute. /1/ In my opinion, the General Counsel did not establish by a preponderance of the evidence that the 28 case review is a review procedure for appraisals with respect to employees in the South Seattle Branch Office and, thereby, a condition of employment. Agency management has no obligation under the Statute to notify and bargain with the exclusive representative concerning matters which do not constitute changes in "conditions of employment" within the meaning of the Statute. See, Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Groton, Connecticut, 4 FLRA 578 (1980). In so concluding, I credit agency representatives that the 28 case review is an internal management report submitted to measure the in-house quality of SSI claimant files i.e. the office or unit's quality and in no way effected employee's working conditions. In addition, agency management had no obligation under section 7114(b)(4) to supply the exclusive representative with information concerning the 28 case review procedure. Such information again concerned a procedure which has been determined herein to be an internal management tool to measure unit quality and not the quality of the work of the individual employee. Since it did not involve "conditions of employment" of unit employees, it is found that agency management had no obligation to supply such information to the exclusive representative. Cf. Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Groton, Connecticut, supra. In light of the foregoing, I find that Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute by failing or refusing to negotiate with the Union concerning the 28 case review procedure or by refusing to furnish the Union information concerning that procedure. Accordingly, it is recommended that the Authority adopt the following: ORDER It is hereby ordered that the Complaint in consolidated case numbers 9-CA-30259 and 9-CA-30297 be, and hereby are dismissed, in its entirety. ELI NASH, JR. Administrative Law Judge Dated: February 23, 1984 Washington, DC --------------- FOOTNOTES$ --------------- /1/ Section 7103(a)(14) defines conditions of employment as: "'conditions of employment' means personnel policies, practices, and matters, whether established by rule, regulation or otherwise affecting working conditions . . . "