[ v23 p738 ]
The decision of the Authority follows:
23 FLRA No. 96 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 4-CA-40007 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the Department of Health and Human Services, Social Security Administration (the Respondent). The issue concerns whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the American Federation of Government Employees, AFL-CIO (the Union) concerning a particular proposal. For the reasons stated below, we find no merit to this allegation. II. Facts On May 23, 1983, the Respondent and the Union, pursuant to an unfair labor practice settlement agreement, signed a Memorandum of Understanding (MOU) which provided, in part, that: This memorandum will serve as an agreement by Management and Local 2206 to enter into negotiations regarding Management's decision to rotate the Benefit Authorizer Technical Assistants on a 6-month basis. Negotiations will be in accordance with the (S)tatute and Article 4 of the National Agreement. As a result of the MOU, the parties negotiated for over one month on 13 proposals submitted by the Union. Of the original proposals, the Union withdrew four because they infringed upon management's section 7106 rights; six were agreed to; and three, including the proposal involved in this case, Union Proposal No. 5, because subjects of unfair labor practice charges. /1/ The General Counsel concedes that while the Union's initial Proposal No. 5 concerning a system of errors to be applied uniformly to the Benefit Authorizer Technical Assistants (BATAs) may have infringed upon management's rights, it was offered as part and parcel of the posturing process during negotiations. Thereafter, during the month-long negotiations, the Uniion submitted several different versions of Proposal No. 5 concerning the same subject. The last offer was declared nonnegotiable by the Respondent. /2/ III. Administrative Law Judge's Decision The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by declaring Union Proposal No. 5 nonnegotiable. He found that by such action the Respondent repudiated the parties' MOU. In making this finding, the Judge noted that the Respondent had previously agreed to negotiate over the impact of a change in conditions of employment pursuant to the MOU executed as a part of the settlement agreement. Accordingly, the Judge found that the Respondent failed to meet its bargaining obligations by its declaration. He further concluded that the Respondent was obligated to negotiate with the Union over the proposal. IV. Positions of the Parties In its exceptions, the Respondent argues that it negotiated extensively and in good faith with the Union for one month. It contends that after a month of negotiations the parties reached an impasse. Further, it argues that the Judge's Decision finding the Union's proposal negotiable is erroneous because the proposal interferes with the Respondent's right to determine which duties and functions will be included in performance appraisals and thereby interferes with its right to assign work. Finally, it argues that the Judge's remedy ordering a national posting is excessive under the circumstances. V. Analysis In our view, the agency merely exercised its right under section 7117(c) of the Statute to allege that a proposal is nonnegotiable. The Authority has long held that an agency's declaration of nonnegotiability does not constitute bad faith bargaining where at the time of the declaration, no established precedent existed which was dispositive of the negotiability issue. /3/ Since no established precedent exists with respect to the specific language of proposal No. 5, Respondent's mere declaration of nonnegotiability does not constitute a violation of the Statute. In addition, where a unilateral change in conditions of employment coupled with a refusal to bargain is alleged, the Authority will make a negotiability ruling in the context of an unfair labor practice proceeding. /4/ In this case, the complaint does not allege a unilateral change. We will not, therefore, decide the negotiability of Proposal No. 5 in this proceeding. As for the Judge's reliance on the MOU, in our view it obligated the Respondent to negotiate over the rotation of the BATAs, not to negotiate on any and all proposals that the Union might make. The MOU provided: "Negotiations will be in accordance with the Statute." The Union acknowledges making certain proposals which might have infringed upon management's section 7106 rights, including earlier versions of Proposal No. 5. The Respondent had a statutory right to raise the same concern about the proposal at issue. We do not agree with the Judge's finding that the Respondent's nonnegotiability declaration with regard to one proposal was a repudiation of the MOU. The MOU constituted an agreement to negotiate, which the Respondent did for one month, agreeing to six of the Union's proposals. /5/ There is no evidence that Respondent refused to negotiate in good faith. Accordingly, we do not view the Respondent's conduct as violative of the Statute. VI. Conclusion Pursuant to section 2423 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and thus affirms those rulings. The Authority has considered the Judge's Decision and the entire record, including the parties' contentions, and adopts the Judge's findinigs and conclusions only to the extent consistent with our decision. Therefore, we shall dismiss the complaint. ORDER The complaint in Case No. 4-CA-40007 is dismissed. Issued, Washington, D.C. October 31, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 4-CA-40007 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Regina Kane, Esq. For the General Counsel L. J. Clary, Esq. For the General Counsel Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq. (herein referred to as the Statute). Upon unfair labor practice charges filed by the American Federation of Government Employees (herein referred to as the Union) on October 5, 1983 against the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland (herein referred to as Respondent or SSA), the General Counsel of the Authority, by the Regional Director for Region 4, issued a Complaint and Notice of Hearing on February 15, 1984. The Complaint alleged that Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to bargain in good faith by declaring a union proposal non-negotiable and refusing to bargain in good faith concerning the policy described in the Union proposal. Respondent's Answer denied the commission of any unfair labor practice. A hearing was conducted in Birmingham, Alabama, at which time Respondent and the General Counsel were represented by Counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Counsel for the General Counsel gave oral argument and Respondent filed a brief. Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact Since on or about June 11, 1982, the Respondent and Union have been parties to a collective bargaining agreement covering a nationwide consolidated unit which includes employees of Respondent at its Southeastern Program Service Center located in Birmingham, Alabama. In October, 1982, Respondent implemented a change in policy concerning its Benefit Authorizer Technical Assistants (BATAs), who are responsible for reviewing the work of other employees, Benefit Authorizers (BAs). The BAs are responsible for post-adjudicative actions on Social Security cases. Prior to the above change implemented in October, 1982, a BATA was assigned on a permanent basis to one of thirty-six modules at Respondent's Southeastern Program Service Center. The module is a self-contained unit consisting of approximately fifty employees who collectively are responsible for processing and maintaining all Social Security claims and benefits. Each BATA is responsible for providing technical leadership, guidance and counsel to the ten to fifteen BAs assigned to each module, and for reviewing the work of the BAs, including the identification of "errors" made by the BAs. Commencing with the change implemented in October, 1982 Respondent began rotation of BATAs from module to module every six months. The reason for the rotation was, as Respondent had perceived, that the BAs in each particular module had become familiar with their BATAs methods and preferences, and thus could predict what would or would not be an "error" to that specific BATA. Because Respondent unilaterally implemented this new rotation system without bargaining with the Union, the Union filed an unfair labor practice charge on October 15, 1982. The case, 4-CA-30042 was subsequently settled after issuance of a Complaint by the Regional Director, Region 4 and after Respondent entered into an agreement with the Union entitled Memorandum of Understanding, Ground Rules, on May 23, 1983. The signatories to this agreement were Respondent's Labor Relations Specialist George Sedberry and Local Union President Frank White. The Memorandum of Understanding provides, inter alia, that: This memorandum will serve as an agreement by Management and Local 2206 to enter into negotiations regarding Management's decision to rotate the Benefit Authorizer Technical Assistants on a 6-month basis. Negotiations will be in accordance with the (S)tatute and Article 4 of the National Agreement. This memorandum will serve as an agreement by Local 2206 to request withdrawal, concurrent with the initiation of negotiations, of the Unfair Labor Practice Charge filed on 10/15/82, Case No. 4-CA-30042, . . . " Consistent with the above-stated objective of the Memorandum of Understanding and Ground Rules, Respondent and the Union, entered into negotiations on the impact and implementation of the rotation of BATAs in July, 1984. The principals for the negotiations were the agreements signatures White and Sedberry. The Union's intention apparently was to bargain over the adverse impact on the BAs and BATAs resulting from Respondent's decision to rotate BATAs. Consistent with this intention the Union identified areas it felt impacted on the employees involved. According to Thomas M. Bruce, Director of Operations of the Program Service Center involved herein, all BATAs followed the same instructional guidance in reviewing BAs and there was unquestionably room for the BATAs to exercise judgment in the decision making process. Mr. Bruce further stated each BATAs definition of an "error" made by a BA was somewhat subjective and could differ from BATA and BATA. According to him a method existed for the resolution of an error because such differences of opinion indeed exist. The Union was concerned that the implementation of the decision to rotate BATAs on a periodic basis would adversely impact BA's inasmuch as the BAs would no longer be familiar with the particular judgmental preferences of the BATAs assigned to them, especially with regard to what constituted an error. According to Mr. White, the rotation destroyed the advantage of knowing the preferences and actions of the BATA to which the BA was regularly assigned. The rotational process, particularly the assignment of errors, according to Mr. White, goes to the root of the evaluation process under the Civil Service Reform Act. Mr. White also vigorously denied that the Union desired during negotiations to participate in devising errors. In short, it appears that the Union was looking for consistency in definition of errors. When the parties commenced negotiations pursuant to the May 23, 1983, Memorandum of Understanding, the Union initially submitted thirteen (13) proposals r for management's consideration. Of the thirteen (13) original proposals the Union withdrew four (4) because they infringed upon management's section 7106 rights; six (6) were agreed to; and, three (3) which remained became subjects of unfair labor practice charges. The proposal with which we are here concerned is item number five (5) of the thirteen (13) and concerns a system of errors to be applied uniformly to BATAs. While the Union's initial proposal on this matter admittedly infringed on management's rights under section 7106, the Union submitted several different proposals concerning the same subject during negotiations and it is its last offer which was declared non-negotiable on August 24, 1983, by Labor Relations Specialist Sedberry is at issue here. Mr. Sedberry, declared proposal item 5 non-negotiable "because there is no change in working conditions . . . no change in our personnel policy, practice, or working (sic), or conditions of employment." In its last offer, the Union proposal on item 5 was as follows: Technicians subject to quality assessment by the BATA will be given an appropriate list of errors by management, each defined in such a manner that all affected parties to this agreement have a common understanding of what they are and how they will be applied. . . . Any error definition will be applied consistently to all affected employees throughout the SEPSC. This proposal allegedly establishes a procedural requirement that after an error had been defined by management, the employee must be told what the definition is in a reasonably comprehensive manner in order to insure consistent application. Mr. White testified, that when the Union submitted the above proposal, it desired Respondent to give the affected employees a list of what the errors were so that both BATAs and BAs possessed a mutual understanding of what constituted an error and so that the error definitions would be applied consistently to all employees throughout the Program Center. Thereafter, a Mediator assisted the parties' at their request in August, however, actual negotiations on item 5 have not occurred at any time subsequent to August 24, 1983, when Respondent declared Item 5 non-negotiable. On January 30, 1984, Mr.Bruce, issued a memorandum to all Program Center Operations Managers, entitled Exercise of Professional Judgment in Casework. The memorandum provided, as follows: Basically, this memorandum does not extend the authority technicians already possess since they already have the discretion to deviate from established procedures where individual case circumstances dictate a different course of action. The objective of the memorandum was to reinforce this authority and expectation and encourage the authorizers to fully exercise it . . . Some authorizers evidently feel a strong reluctance to deviate from procedures for fear of getting an error. Discussion and Conclusions The Authority has made it abundantly clear that where an agency in exercising a management right under section 7106 of the Statute, the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA No. 32 (1984); U.S. Government Printing Office, 13 FLRA No. 39 (1983); Internal Revenue Service, Washington, D.C. and Fresno Service Center, Fresno, California, 16 FLRA No. 23 (1984); Department of Health and Human Services, Social Security Administration, 16 FLRA No. 103 (1984). The Union's proffer of item 5 was prompted by its desire to have Respondent give affected employees a list of defined errors thereby insuring that both BATAs and BAs would know and have a common understanding of what constituted an "error". The impact in its view being that the individual BAs performance evaluation would ultimately be affected by the assignment of errors therefore, the Union desired advance knowledge of what constituted an error. Respondent simply denies that the rotation of BATAs is a change in conditions of employment and sees no impact on BAs as a result of its rotating BATAs. The record is contrary to that assertion. The record disclosed more than a question of negotiability or impact and shows that Respondent had already agreed to negotiate the impact of that change in rotation of BATAs. /6/ Case No. 4-CA-30042 was informally resolved on the basis that Respondent would negotiate concerning its decision to rotate BATAs and that such negotiations would be done in conformity with the Statute and Article 4 of the parties collective bargaining agreement. If Respondent did not view the rotation as a change in conditions of employment, why then did it agree to engage in negotiations concerning the rotation. That issue was resolved by its capitulation in entering into the settlement agreement in the initial case. I agree with the General Counsel that Respondent's position is dissembling. First, Respondent admits an obligation to bargain concerning the impact and implementation of a subject, enters into an agreement memorializing that position, an agreement by the way, which was made possible only by the Union's settlement of a charge found meritorious by the Regional Office, engages in negotiations concerning some previously contested items but decides that it does not want to honor the agreement where item 5 is concerned. Inasmuch as Respondent refused to negotiate concerning item 5 it is found that Respondent's action constitutes a repudiation of that agreement and violates section 7116(a)(1) and (5) of the Statute. See Great Lakes Program Service Center, Social Security Administration, Department of Health and Human Services, 9 FLRA 499 (1982); Veterans Administration Hospital, Danville, Illinois, 4 FLRA 432 (1980). Respondent, asserts that it met its obligation to bargain in this matter since it met in a good-faith effort to reach agreement. It contends, that under Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA 639 (1983) the fact it was not persuaded to change its position during negotiations does not constitute a showing of bad faith. The Lewisburg case is inapplicable since no Memorandum of Understanding was involved in that case. Here it is clearly established by Respondent's position in settling Case No. 4-CA-30042 that it would engage in impact and implementation bargaining and that at least implicitly, it had an obligation to engage in impact bargaining concerning the rotation of BATAs. Anything less than complete bargaining on the impact and implementation apparently would not be in accord with the agreement it entered into in May 1983. This is not a situation under section 7106 where Respondent elects to negotiate, since its election to negotiate was exercised when it entered the Memorandum of Understanding. In this same vein, Respondent entered in negotiations over other aspects of the rotation of BATAs thereby buttressing the opinion that a change in conditions of employment had occurred. Finally, meeting but affirmatively refusing to negotiate does not satisfy the obligation to bargain as Respondent seems to suggest. Cf., Library of Congress, 9 FLRA 427 (1982). In rejecting the May 1983 Memorandum of Understanding and assuming that it had no obligation to bargain consistent with that memorandum Respondent now maintains that no adverse impact occurred when it exercised management rights herein. I disagree. A foreseeable impact clearly exists since the record indicates errors are incorporated into the employees rating process. Clearly the Union saw potential adverse impact and presented its proposals pertinent to such impact. The General Counsel argues that the proposal offered by the Union was negotiable and that this matter falls within the class of cases where agencies must bargain over the dissemination or communications of determinations to employees because such dissemination or communication in no way interferes with managements abilities to make the determinations, and as such are matters which are fully negotiable. Citing Department of the Army, Fort Monmouth, New Jersey, 13 FLRA 426 (1983); Bureau of Public Debt, 3 FLRA 768 (1980); Federal Deposit Insurance Corporation, Chicago Region, 7 FLRA 217 (1981); Office of Personnel Management, Washington, D.C., 3 FLRA 783 (1980); Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982). Turning to the General Counsel's argument that the record demonstrates that the Union's final proposal did not attempt to give it the right to determine what constitutes an error nor did it seek any input into that determination. The Union proposal here appeared to be no more than a procedural requirement seeking to establish that once an error has been defined by the agency, the employee would be told the definition of the error in a reasonably intelligible manner. The proposal certainly goes to the impact of Respondent's decision to rotate BATAs, particularly because the major concern of the Union here was to prevent the lack of uniformity of application of the system of errors. Thus, Respondent was obligated to bargain with the Union on this proposal unless the Union's proposal (if adopted) would substantially, or excessively, interfere with management's right to determine the errors. See U.S. Customs Service, Region II, 11 FLRA 209 (1983); Office of Personnel Management, Washington, D.C., 8 FLRA 460 (1982) (D.C. Cir. March 13, 1984), or unless a government-wide regulation or Statute left no discretion to the agency in the "choice" of the procedure. See U.S. Customs, Region II, 11 FLRA 209 (1983); Bureau of Alcohol, Tobacco, and Firearms, 8 FLRA 547 (1982); March AFB, Riverside, California, 13 FLRA No. 44, 13 FLRA 255 (1983). A review of the Union's proposal indicates that it did not interfere with the Respondent's right to determine errors, and that the proposal concerning the definition of "errors" which would affect employee evaluations fell within the duty to bargain. Furthermore, Respondent raised no government-wide regulation with which the proposal is incompatible or irreconcilable. As the General Counsel notes, the Union's proposal, if accepted, does not require Respondent to adopt any input from the Union or employees on the definition of error. To the contrary, the proposal simply provides a means for the employee or Union to know what the errors are and how they are to be applied. Knowledge of what an error is and its application in a consistent manner indeed might reduce adverse impact of rotating BATAs, while leaving management's decision-making unaffected. Accordingly, in view of the foregoing and the conclusion that Respondent has violated section 7116(a)(1) and (5) of the Statute, by declaring a union proposal non-negotiable and refusing to negotiate thereon although a reasonably foreseeable impact existed, /7/ I recommend the Authority issue the following: ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's regulations and section 7118 of the Statute, it is hereby ordered that the Social Security Administration, Baltimore, Maryland shall: 1. Cease and desist from: (a) Failing or refusing to negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the employees' exclusive collective bargaining representative by declaring to the following proposal concerning the rotation of BATAs non-negotiable: Technicians subject to quality assessment by the BATA will be given an appropriate list of errors by management, each defined in such a manner that all affected parties have a common understanding of what they are and how they will be applied . . . . Any error will be applied to all affected employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Upon request of the American Federation of Government Employees, AFL-CIO, the employees' exclusive collective bargaining representative, negotiate in good faith, to the extent consonant with law and regulations, concerning the impact and implementation of the proposal concerning the rotation of BATAs. (b) Post at all of its facilities where employees represented by the American Federation of Government Employees, AFL-CIO, the employees' exclusive representative, are located, copies of the attached Notice marked "Appendix", on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by an appropriate official and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. The Commissioner shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director of Region 4, Federal Labor Relations Authority, 1776 Peachtree Street, NW., Suite 501 -- North Wing, Atlanta, GA 30309, in writing within 30 days from the date of the Order as to what steps have been taken to comply herewith. /s/ ELI NASH, JR. Administrative Law Judge Dated: December 24, 1984 Washington, DC --------------- FOOTNOTES$ --------------- (1) The record does not show what happened to the other two proposals subject to unfair labor practice charges. (2) The proposal at issue is: Technicians subject to quality assessment by the BATA will be given an appropriate list of errors by management, each defined in such a manner that all affected parties to this agreement have a common understanding of what they are and how they will be applied. Any error definition will be applied consistently to all affected employees throughout the SEPSC. (3) See 182nd Tactical Air Support Grouup, Illinois Air National Guard, The Adjutant General of Illinois, Springfield, Illinois, 10 FLRA 381 (1982). (4) Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 22 FLRA No. 10 (1986). (5) Based on our decision in this case, we find it unnecessary to consider the Respondent's contentions that the parfties were at a bargaining impasse. (6) Based on the May 23, 1983 Memorandum of Understanding, I find that Respondent's waiver argument lacks merit. (7) In light of the above findings, Respondent's Motion to Dismiss is denied. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE We hereby notify our employees that: WE WILL NOT fail and refuse to bargain in good faith with the American Federation of Government Employees, AFL-CIO by declaring the following proposal concerning the rotation of BATAs non-negotiable: Technicians subject to quality assessment by the BATA will be given an appropriate list of errors by management, each defined in such a manner that all affected parties to this Agreement have a common understanding of what they are and how they will be applied. Any error will be applied consistently to all affected employees throughout the SEPSC. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute. WE WILL bargain collectively with the American Federation of Government Employees, AFL-CIO on all proposals concerning the implementation of the rotation of BATAs and the impact thereof upon employees adversely affected, including the proposal set forth above. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remaiin posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region 4, whose address is: 1776 Peachtree Street, NW., Suite 501 -- North Wing, Atlanta, GA 30309 and whose telephone number is: (404) 881-2324.