21:0735(92)CA - HHS, SSA, Baltimore, Md and AFGE -- 1986 FLRAdec CA
[ v21 p735 ]
21:0735(92)CA
The decision of the Authority follows:
21 FLRA No. 92
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 7-CA-40172
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 practice alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
filed exceptions to the Judge's Decision and a brief in support thereof.
Pursuant to Section 243.29 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. /1/
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-40172 be, and it
hereby is dismissed.
Issued, Washington, D.C., May 12, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-40172
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Mr. Carl J. Clayton
For the Respondent
Mr. Reginald T. Huey
For the Charging Party
Nicholas J. Loburgio, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement Of The Case
This decision concerns an amended unfair labor practice complaint
issued by the Regional Director, Region Seven, Federal Labor Relations
Authority, Denver, Colorado against the Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland
(Respondent), based on a charge filed by the American Federation Of
Government Employees, AFL-CIO, (Charging Party or Union). The complaint
alleged, in substance, that Respondent violated sections 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statue, 5 U.S.C;
Section 7101 et seq. (the Statute), on or about January 9, 1984 at its
Mid-America Program Service Center, Kansas City, Missouri, by
unilaterally changing the terms and conditions of unit employment. The
complaint alleges that Respondent implemented "You and the Program
Service Center," No. 83-56, regarding the use of unit employee
preferences for the selection of work locations, without first reaching
agreement or impasse with the union.
Respondent's answer admitted the jurisdictional allegations relating
to the Respondent, Charging Party, and the charge, but denied any
violation of the Statute. Respondent contends that it implemented the
change after discharging its obligation to bargin as provided by the
Statute and the parties' collective bargaining agreement.
A hearing was held in Kansas City, Missouri. The Respondent,
Charging Party, and the General Counsel were represented and afforded
full opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Base on the
entire record, /2/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
In 1975, after notice to and concurrence by the Union, the
Mid-America Program Service Center (MAMPSC), an integral part and agent
of Respondent, issued a circular, "You and the Program Service Center,"
No. 75-11, dated May 5, 1975, which established a policy and
implementation procedures to be used by selecting officials in granting
employee preferences for work location assignment when filling identical
positions simultaneously at the two work locations in use at that time,
i.e., the Federal Office Building (FOB) and Crown Center. A few years
later the Crown Center facility was abandoned and the functions
previously performed there were moved to the Mid-Town Office Building
(MTOB). Notwithstanding this transfer, the Circular No. 75-11 policy
and procedures remained in force. The MTOB facility housing about 600
of MAMPSC'S 2800 employees, is separate from the FOB and requires a
shuttle bus trip of 15 to 20 minutes to reach. Unlike the FOB, the MTOB
facility does not have cafeteria facilities, a credit union, nor
close-in all-day parking.
The procedure, which was implemented in 1975, established that when
multiple employees are promoted to identical positions at the two work
locations, which were to be filled simultaneously, the selecting
official would rank the selectees by grade level and time-in-grade.
Thereafter, using the employees' service computation date at the
tie-breaker, if necessary, higher graded employees would be "given work
location preference" first and thereafter other employees would receive
their preference based upon their grade level and time-in-grade, if
there were vacancies available at the work location selected by the
employee. If an employee in this latter category declined the only
available work location, the employee did not receive the promotion.
(G.C. Ex. 3). Variations from this policy, for individual situations,
were handled by agreement on a case-by-case basis by the Union and
MAMPSC. The work location assignment procedure was used from 5 to 10
times per year between 1975 and 1984.
MAMPSC is divided into branches, then selections, and then modules,
with each module responsible for a particular section of the workload.
It is necessary to maintain a balanced staff within each module in order
to handle the assigned work.
In early to mid-1983, the MAMPSC decided that it wanted to
redistribute the workload in the 42 modules where unit employees worked
and modify staffing and employee racial and sexual imbalances that had
developed over a period of several years. Donald Mings, director of
MAMPSC, appointed Betty Cantrell, MAMPSC deputy director of operations,
and Suzy Schmidt, MAMPSC assistant labor relations specialist, as his
agents to notify the Union that he wanted to change the past practice
and to bargain with the Union. By letter dated July 21, 1983 MAMPSC
advised the Union that effective July 27, 1983 it would "implement a
modified method of work location assignments." Respondent's letter
contained a proposed MAMPSC circular delineating the change in past
practice, stating, inter alia, "Future building location assignments
will be made on the basis of organizational needs, taking into
consideration the preference and needs of individual employees." This
proposed procedure would have eliminated the use of employee preference
as the primary work location assignment criteria. Respondent requested
that Union counterproposals be submitted by July 22, 1983. (G.C. Ex.
4).
On July 22, 1983, the Union responded to MAMPSC'S proposal and
requested bargaining over "the procedures you will follow in carrying
out the changes and the arrangements you will make for bargaining unit
employees adversely affected." In addition, the Union proposed that no
change be made in the current procedure and designated Reginald T. Huey,
union executive vice-president, as the Union point of contact. (G.C.
Ex. 5).
Huey met with Schmidt and Cantrell on five dates (July 28, August 3,
4, 9, and 12, 1983), covering 12 workdays. Proposals were exchanged on
August 3, 4, and 12, a mediator from the Federal Mediation and
Conciliation Service (FMCS) participated on August 9 and 12, 1983, at
the Unions request. During bargaining it was MAMPSC'S position that the
Union proposals were nonnegotiable and interfered with management rights
concerning the assignment of employees. (Tr. 28-29, 88, 102). Huey
expressed the Union's position that, notwithstanding MAMPSC'S management
rights, the Union has a right to bargain pursuant to Section 7106(b) of
the Statute. At the August 12, 1983 bargaining session, the mediator
advised the parties that they were at impasse.
At no time during the bargaining, from July 28, 1983 through August
12, 1983, did the management representatives tell the Union that,
pursuant to the collective bargaining agreement, after ten bargaining
sessions or ten workdays they would no longer bargain with the Union.
It was normal procedure to extend bargaining beyond ten days to
accomodate the mediator if he was not immediately available.
Respondent advised the Union that it was going to implement, but
before that was done it received a copy of the Union's request of August
24, 1983 for the assistance of the Federal Services Impasses Panel
(FSIP). (G.C. Ex. 6). FSIP acknowledged receipt of the request on
September 1, 1983. (G.C. Ex.7). Respondent provided a position paper
to FSIP on October 17, 1983. Respondent asserted that the Union
proposals, submitted in August 1983, were nonnegotiable as inconsistent
with the agency's authority to assign employees or to assign work under
sections 7106(a)(2)(A) and (B) of the Statute. Respondent asked the
Panel to decline the Union's request.
As a result of Respondent's nonnegotiability declaration, Huey
submitted a new proposal directly to the MAMPSC, with a copy to FSIP, on
October 24, 1983. The letter provided, in part, as follows:
We are herein submitting the following proposal in order to
resolve our current impasse. This proposal constitutes Union
Proposal No. 6:
When simultaneously filling identical positions, at more than
one building location, the following procedure will be used:
(1) Each employee selected for promotion to one of the
identical positions, will indicate his/her preference of building
locations to be assigned.
(2) Should the above procedure fail to produce the desired
staffing need at each location, selected employees with the
earliest service computation dates will be afforded a choice of
available building locations.
Huey followed up the letter with a telephone call to Schmidt in which
he requested her opinion as to whether the proposal was negotiable.
Schmidt replied that she couldn't tell as she didn't understand the
proposal. Huey explained what he had in mind. On November 8, 1983,
Huey requested a written response. On November 9, 1983, respondent
replied by memorandum as follows:
On the afternoon of November 8, 1983, you asked to be furnished
with a written response to the proposal you had submitted on
October 24, 1983, and identified as Union Proposal No. 6. This
proposal in actuality is the seventh proposal the union has
submitted on this issue.
Article 4, Section 1 of the National Agreement specifies:
"The union will submit written proposals if applicable within a
reasonable period after notice of the proposed change. Bargaining
will begin as soon as possible, and will not exceed ten (10)
working days. All issues not resolved at that time may be
referred to the Federal Service Impasse Panel for resolution under
its rules."
You were notified of the change in method of making building
location assignments on July 21, 1983. You requested negotiations
on July 22, 1983, and the parties began bargaining on July 28,
1983. Proposals continued to be submitted by both parties
throughout the bargaining and mediation sessions which ended on
August 12, 1983.
This matter is now before the Impasse Panel, and any
correspondence concerning this case should be directed to the
Panel. It is inappropriate, and contrary to the contractual
provision, to be submitting a written proposal to management while
the issue is currently under the jurisdiction of the Panel.
Respondent mailed a copy to the FSIP. At the same time, Schmidt read
the memorandum to the Union and the FSIP over the telephone.
By letter dated November 10, 1983, the Union requested the FSIP to
find its final proposal negotiable and in accordance with the Statute.
(G.C. Ex.11). On November 28, 1983 the FSIP declined jurisdiction. The
FSIP stated, in part, as follows:
Because there are threshold questions concerning the Employer's
obligation to bargain over the Union's proposals the Panel
declines to assert jurisdiction until the questions have been
resolved in an appropriate forum. (G.C. Ex. 12).
On December 27, 1983, Respondent notified the Union, inter alia, that
it had fulfilled its bargaining obligation on the issue and would
implement its last best offer made in August 1983 on January 9, 1984.
(G.C. Ex. 13).
In response to this announcement, Huey sent MAMPSC a letter dated
January 5, 1984, but received January 6, 1984, stating that the October
24, 1983 proposal was still on the table and requesting that MAMPSC
either negotiate or submit the matter to arbitration. (Tr. 113; G.C.
Ex. 14).
On January 9, 1984, MAMPSC distributed 3000 copies of a new "You and
the PSC" circular implementing the new procedure. Initial printing
arrangements for the circular had been made in mid-December. The new
policy changed the existing past practice by making organizational needs
rather than employee preferences the primary consideration in work
location assignments. Respondent stated, "Although every reasonable
effort will be made to accommodate individual needs and preferences,
employees should realize when applying for a position which has
vacancies in both buildings that there is a possibility that they may
not be assigned to the building of their preference." (G.C. Ex. 15).
BACKGROUND OF ARTICLE IV OF THE NATIONAL AGREEMENT /3/
Article IV, Section 1, as applicable to the present case, states:
The Union will submit written proposals if applicable within a
reasonable period after notice of the proposed change. Bargaining
will begin as soon as possible, and will not exceed ten(10)
working days. All issues not resolved at that time may be
referred to the Federal Service Impasses Panel for resolution
under its rules.
Bargaining over the national agreement, of which Article IV is a
part, encompassed an 18 month period from June 10, 1080 through and
including December 21, 1981. The bargaining process encompassed both
general sessions between all team members from both sides and "side-bar"
meetings between selected representatives of the teams. The union
negotiators in the side-bar meetings were not authorized to enter into
agreement during these meetings and, in fact, brought back all
Respondent proposals to the team as a whole for discussion. This
procedure was also used regarding Article IV. It was the articulated
position of the Union throughout the bargaining sessions, that it would
not waive any of its statutory rights in the agreement.
Arthur Johnson, AFGE, Local 1336 president, treasurer of the National
Council of Social Security Payment Center Locals, and chief spokesperson
for the consolidated AFGE unit was a negotiator (side-bar and general
sessions) and signatory on the agreement. He testified on behalf of the
Union regarding bargaining history. As to the quoted provision of the
Article, supra, Respondent initially asked that there be no unreasonable
delay in mid-term bargaining. This was based upon the
mediator/arbitrator's insistence that the parties shorten their
bargaining process. In response to Respondent's position, the Union in
February or early March 1981, first proposed that mid-term bargaining
not exceed 60 days. Subsequent bargaining occurred over Article IV,
Section 1, as applicable herein, and the Union proposed the present "10
working day" language.
The cited portion of the agreement does not qualify the word "working
day" with the adjective "consecutive" or other modifier. The cited
agreement article does not explain nor discuss what procedures the
parties would use should FSIP fail or refuse to assert jurisdiction.
There have been no agreements or arbitration decisions clarifying the
meaning and intent cited section of the Article. The cited provision of
the Article is silent as to what would happen after ten days of
bargaining occurred if a request to FSIP were not made.
Donald M. Mings, director of the MAMPSC, was deputy chief negotiator
for the management team. He testified that Article IV was one of the
last articles upon which agreement was reached. Mings testified that
the language of Article IV, Section 1 was worked out at a side-bar
meeting between two representatives of management, Mings being one of
them, and two representatives of the Union. According to Mings, the
intent of the parties at the side-bar meeting was that bargaining would
be concluded within 10 days unless the parties mutually agreed to extend
the time. After 10 days, according to Mings, the parties were free to
select other courses of action beyond negotiations. The Article drafted
at the side-bar meeting was agreed to by the whole bargaining team, but
there was no discussion before the whole team of the meaning of "10
working days."
Reginald T. Huey, executive vice president of Local 1336 testified
that in past negotiations the "10 working days" language has not been
interpreted to be 10 consecutive days, but to encompass 10 working days
of bargaining over a period of time. In contrast to Huey, Suzy Schmidt,
Respondent's assistant labor relations specialist, testified that in
past negotiations the 10 day provision has started running at the first
meeting between the parties and the 10 day time frame has been adhered
to in the absence of mutual agreement to extend the time.
Discussion, Conclusion, and Recommendations
The General Counsel contends that Respondent violated Section
7116(a)(1) and (5) of the Statute by unilaterally terminating the past
practice of using employee preference for work location assignments when
there existed a viable union bargaining proposal of October 24, 1983
which Respondent had not addressed either through bargaining, a
declaration of non-negotiability, or impasse procedure. The General
Counsel asserts that the proposal was clearly negotiable, and the Union
did not waive its right to bargain through Article IV, Section 1 of the
agreement or otherwise.
Respondent defends on the basis that it implemented the change only
after discharging its duty to bargain as expressed in the Statute and
the parties' agreement. Respondent contends, inter alia, that the
Union's initial action shows surface bargaining and dilatory tactics;
that after August 12, 1983 the parties were outside the 10 days provided
for bargaining in Article 4, Section 1 of the agreement; that the
Union's October 24, 1983 proposal is non-negotiable; that the Union's
inaction after the FSIP decision justified Respondents' notice to
implement; and the Union's response to that notice was untimely.
The threshold question is whether the Union's October 24, 1983
proposal was negotiable under Section 7106 of the Statute since if the
proposal was not negotiable Respondent was privileged to refuse to
bargain with the Union. Internal Revenue Service (District, Region,
National Office Units) and National Treasury Employees Union, 16 FLRA
No. 124, 16 FLRA 904 (1984). As noted, the Union proposal provided:
We are herein submitting the following proposal in order to
resolve our current impasse. This proposal constitutes Union
Proposal No. 6:
When simultaneously filling identical positions, at more than
one building location, the following procedure will be used:
(1) Each employee selected for promotion to one of the
identical positions, will indicate his/her preference of building
locations to be assigned.
(2) Should the above procedure fail to produce the desired
staffing need at each location, selected employees the earliest
service computation dates will be afforded a choice of available
building locations.
Paragraph (2) is the only portion in dispute. Mr. Reginald T. Huey,
Union executive vice president, explained that under the proposal if
management had staffing needs for identical positions at two building
locations, it would first consider individual preferences in trying to
fill the positions. If this procedure failed to produce the desired
staffing at each location, assignment would be made based on seniority
with employees with seniority receiving their building preference.
Those with less seniority could be assigned to the remaining positions.
Mr. Huey acknowledged that if management had a particular need for the
skills of an employee at one building location, but based on seniority
the employee was entitled to go to another building, management would
have to assign the employee based on his seniority and could not assign
the employee where it considered his services to be needed the most.
Respondent contends that the proposal violates 7106(a) of the
Statute. /4/ Respondent claims that identical positions do not equate
with equal performance, and it must be able to place personnel in the
locations where the respective abilities of the individual can be best
utilized in order to have a balanced staff and equalize service to
beneficiaries among the modules assigned to the different buildings.
The right to assign employees which is reserved to management under
Section 7106(a)(2)(A) of the Statute encompasses management's discretion
to establish the qualifications and skills necessary to perform the
duties generally assigned to the position as well as such job-related
individual characteristics as judgment and reliability and to determine
whether an employee meets those qualifications. American Federation of
Government Employees, ALF-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 1 FLRA No. 77, 2 FLRA 604 (1980),
enforced sub. nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d. 1140,1148-49 (D.C. Cir. 1981) cert. denied sub.
nom. AFGE v. FLRA, 455 U.S. 945, 102 S. Ct. 1443 (1982). In
Wright-Patterson the Authority found various proposals (IV-VII and XIII)
outside the duty to bargain. These proposals, which compelled the
selection of a particular individual for assignment to a position based
on either employee seniority, lack of seniority, or by employee
preference, directly interefered with the agency's discretion to
determine which employee to assign and, thus, were inconsistent with
Section 7106(a)(2)(A).
The proposal in issue does not strictly involve a change of position,
as in Wright-Patterson, but rather the procedure for assigning employees
when several identical positions are available at more than one building
location. However, management's discretion under Section 7106(a)(2)(A)
to determine whether an employee has the requisite individual
characteristics, such as judgment and reliability, to do the work in a
particular location also comes into consideration in this instance. In
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 15,
5 FLRA 83 (1981) the Authority found a proposal whereby "qualified and
available employees with requisite skills" would be offered temporary
duty assignments in the same position on the basis of seniority within
the duty to bargain. The Authority noted that the terms "qualified" and
"requisite skills" would serve as a limitation on the operation of the
seniority criterion and would permit the agency to decide that it would
not select the most senior or least senior employee where it determined
that the employee was not qualified or did not possess the needed
skills. Similarly, in National Treasury Employees Union and Department
of the Treasury, Internal Revenue Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 6 FLRA No. 97, 6
FLRA 508 (1981) a union proposal required that volunteers and seniority
status be used by management "among the qualified employees" when
necessary to reassign employees due to a staffing imbalance. The
Authority noted the "qualified employees" restriction and accepted the
union's explanation that an employee, to be included within the
operation of this proposal, could be transplanted and be expected to
perform in a substantially similar manner." A similar union proposal in
National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 14 FLRA No. 45, 14 FLRA 243 (1984), (provision
6), was also held to be within the duty to bargain where management
retained the discretion to limit the selection to qualified employees.
In that case, the Authority also held negotiable a proposal that
required prime shift vacancies to be filled by second shift personnel
who had one year seniority on the other shifts. However, this proposal
also was restricted to "qualified" employees. As noted above, it is
apparent that "qualified" meant qualified in the judgement of
management. It is not equated with merely meeting the qualification
standards for a position.
Since the Union's proposal places no such limitation on the operation
of the seniority criterion but would compel management to meet staffing
needs in the various modules by assigning employees to building
locations based strictly on their preference and seniority, it directly
interferes with the agency's discretion to determine which employees to
assign and is inconsistent with Section 7106(a)(2)(A) of the Statute.
The proposal is not within the duty to bargain. Thus, it is concluded
that Respondent did not violate Section 7116(a)(1) and (5) by refusing
to bargain on the proposal and by implementing its last best offer a
reasonable time after the decision of the FSIP.
In view of this disposition it is unnecessary to reach the other
contentions of the parties. Based upon the foregoing findings of fact
and conclusions of law, it is recommended that the Authority adopt the
following Order.
ORDER
It is hereby Ordered that the complaint in Case No. 7-CA-40171 be,
and it hereby is, Dismissed.
/s/ Garvin Lee Oliver
Administrative Law Judge
Dated: February 6, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In agreement with the Judge, and for the reasons set forth in his
Decision, the Authority finds that the proposal at issue was outside the
duty to bargain. In view of this disposition, the Authority finds it
unnecessary to consider whether the Respondent would have violated the
Statute in the circumstances of this case if such proposal had been
found negotiable.
(2) The General Counsel's unopposed motion to correct the transcript
is granted. The transcript is hereby corrected as set forth therein.
(3) In view of the disposition of this matter on other grounds, it is
unnecessary to resolve the conflict between Respondent and the Union as
to the negotiations leading to this provision, the practice of the
parties in implementing the provision, and the interpretation of the
provision.
(4) Section 7106(a)(2)(A) provides in relevant part:
Section 7106 Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency.
(2) in accordance with applicable laws --
(A) to . . . assign . . . employees in the agency . . .;
(B) to assign work . . . (.)