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U.S. Federal Labor Relations Authority

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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
 Charging Party
                                            Case Nos. 9-CA-30259 
                            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.
    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
                                       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
                           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
    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,
    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'
          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
          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
    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.
    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:
    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 . . . "