[ v10 p77 ]
10:0077(20)CA
The decision of the Authority follows:
10 FLRA No. 20
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-388
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
FINDS:
ON AUGUST 30, 1979, PURSUANT TO A UNIT CONSOLIDATION PROCEEDING, THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE IN A UNIT CONSISTING
ESSENTIALLY OF THE RESPONDENT'S PROFESSIONAL AND NON-PROFESSIONAL
EMPLOYEES, WHICH CONSOLIDATED UNIT INCLUDED EMPLOYEES OF THE
RESPONDENT'S CHICAGO FIELD OFFICES (ACTIVITY), WHO WERE PREVIOUSLY
REPRESENTED EXCLUSIVELY IN A SMALLER AFGE UNIT. ON AUGUST 31, 1979, IN
ACCORDANCE WITH A DIRECTIVE FROM THE RESPONDENT THAT THE ACTIVITY'S
STAFFING LEVELS BE REDUCED BY THE END OF THAT FISCAL YEAR, THE REGIONAL
COMMISSIONER OF THE CHICAGO REGION ORDERED THAT, EFFECTIVE IMMEDIATELY,
PART-TIME PERMANENT AND PART-TIME TEMPORARY EMPLOYEES OF THE ACTIVITY
NOT WORK IN EXCESS OF THEIR ASSIGNED TOURS OF DUTY. IMPLEMENTATION OF
THE ORDER COMMENCED ON SEPTEMBER 4, 1979, AT WHICH TIME THERE OCCURRED
REASSIGNMENTS OF SHIFTS AND REDUCTIONS IN THE HOURS OF WORK AND OVERTIME
ASSIGNED TO PART-TIME PERMANENT AND PART-TIME TEMPORARY EMPLOYEES OF THE
ACTIVITY. ON THIS SAME DATE, THE EXECUTIVE VICE PRESIDENT OF AFGE'S
NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION FIELD OFFICES
REQUESTED THAT THE CHICAGO REGIONAL COMMISSIONER STAY HIS ORDER AND
BARGAIN CONCERNING THE CHANGES. IN HIS RESPONSE, THE REGIONAL
COMMISSIONER NOTED THAT THE RESPONDENT'S REGIONAL OFFICES HAD NOT BEEN
ADVISED OF THEIR BARGAINING RESPONSIBILITIES FOLLOWING THE RECENT UNIT
CONSOLIDATION AND THAT THERE WAS NOT YET IN EXISTENCE AN AGREED UPON
REGIONAL SUBSTRUCTURE WITHIN WHICH BARGAINING COULD TAKE PLACE.
ADDITIONALLY, ON OR ABOUT SEPTEMBER 25, 1979, AT LEAST TWO TEMPORARY
EMPLOYEES OF THE ACTIVITY WERE PLACED ON LEAVE-WITHOUT-PAY (LWOP) STATUS
BY THE RESPONDENT. THE PARTIES STIPULATED THAT THE RESPONDENT DID NOT
PROVIDE ADVANCE NOTICE TO AFGE AT ANY LEVEL PRIOR TO THE ISSUANCE OF THE
AUGUST 31 ORDER, AND DID NOT PROVIDE ADVANCE NOTICE TO AFGE PRIOR TO THE
PLACEMENT OF EMPLOYEES ON LWOP. THE PARTIES FURTHER STIPULATED THAT THE
RESPONDENT DID NOT BARGAIN WITH AFGE ON ANY OF THESE CHANGES.
THE COMPLAINT ALLEGES THAT THE RESPONDENT, SOCIAL SECURITY
ADMINISTRATION, VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY
CHANGING TERMS AND CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHOUT
NOTIFYING AFGE AND AFFORDING IT AN OPPORTUNITY TO REQUEST BARGAINING
OVER SUCH CHANGES. THE RESPONDENT CONTENDS THAT NO BARGAINING
OBLIGATION EXISTED WITH REGARD TO THE SUBSTANCE OF THE CHANGES OR THEIR
IMPACT AND IMPLEMENTATION BASICALLY FOR TWO REASONS: (1) THE CHANGES
CONCERNED MATTERS FALLING WITHIN SECTION 7106(B)(1) OF THE STATUTE /1/
AND WERE THEREFORE NEGOTIABLE SOLELY AT THE ELECTION OF THE RESPONDENT;
AND (2) AT THE TIME THE CHANGES WERE DIRECTED PURSUANT TO THE REGIONAL
COMMISSIONER'S ORDER, NO BARGAINING OBLIGATION EXISTED AT THE LEVEL OF
THE REGIONAL COMMISSIONER.
CONTRARY TO THE RESPONDENT'S POSITION, THE AUTHORITY FINDS THAT THERE
EXISTED AN OBLIGATION TO NOTIFY THE EXCLUSIVE REPRESENTATIVE AND AFFORD
IT AN OPPORTUNITY TO BARGAIN ON THE PROCEDURES TO BE USED IN
IMPLEMENTING THE REDUCTION IN STAFFING LEVELS (INCLUDING THE PLACEMENT
OF EMPLOYEES ON LWOP) AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY THESE CHANGES, /2/ AND THAT SUCH
OBLIGATION EXISTED AT THE LEVEL OF THE RESPONDENT. AS PREVIOUSLY NOTED,
THE DIRECTIVE THAT THE CHICAGO REGIONAL COMMISSIONER REDUCE STAFFING
LEVELS EMANATED FROM THE SOCIAL SECURITY ADMINISTRATION'S HEADQUARTERS,
THE NAMED RESPONDENT IN BOTH THE UNFAIR LABOR PRACTICE CHARGE AND
COMPLAINT, AND NOT FROM ANY SUBORDINATE LEVEL SUCH AS THE REGIONAL
COMMISSIONER OR THE CHICAGO FIELD OFFICES WHICH TOOK ACTIONS TO
IMPLEMENT THE DIRECTIVE. AS TO THE DATE OF THE RESPONDENT'S DIRECTIVE,
THE PARTIES' STIPULATION INDICATES MERELY THAT THE DIRECTIVE WAS ISSUED
IN AUGUST 1979, BUT DOES NOT SPECIFY WHETHER THIS WAS PRIOR TO OR AFTER
AFGE'S CERTIFICATION IN THE CONSOLIDATED UNIT ON AUGUST 30, 1979.
ASSUMING, IN THE FIRST INSTANCE, THAT THE DIRECTIVE WAS ISSUED PRIOR TO
THE DATE OF CERTIFICATION IN THE CONSOLIDATED UNIT, THE ACTIONS OF THE
RESPONDENT IN DIRECTING SUBORDINATE ACTIVITIES AT THE PREEXISTING LEVEL
OF EXCLUSIVE RECOGNITION TO MAKE CHANGES IN THE CONDITIONS OF EMPLOYMENT
OF UNIT EMPLOYEES WITHOUT NOTIFYING THE EXCLUSIVE REPRESENTATIVE IN
ADVANCE AND AFFORDING IT AN OPPORTUNITY TO BARGAIN CONSONANT WITH LAW
AND REGULATIONS, VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.
SEE DEPARTMENT OF THE INTERIOR, WATER AND POWER RESOURCES SERVICE, GRAND
COULEE PROJECT, GRAND COULEE, WASHINGTON, 9 FLRA NO. 36(1982);
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION,
REGION VI, AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, GALVESTON, TEXAS DISTRICT, 10 FLRA NO. 9(1982). IN THE
ALTERNATIVE, IF THE DIRECTIVE WAS ISSUED ON OR AFTER THE DATE OF
CERTIFICATION IN THE CONSOLIDATED UNIT, THE RESPONDENT, WHICH THEN
BECAME THE NEW LEVEL OF EXCLUSIVE RECOGNITION, WAS OBLIGATED TO NOTIFY
AFGE AND AFFORD IT AN OPPORTUNITY TO BARGAIN, CONSONANT WITH LAW AND
REGULATION, CONCERNING THE REDUCTION IN STAFFING. /3/ AS THE RESPONDENT
FAILED TO PROVIDE PRIOR NOTICE TO AFGE REGARDING THE CHANGE IN STAFFING
LEVELS AFFECTING UNIT EMPLOYEES OR TO PROVIDE AFGE AN OPPORTUNITY TO
BARGAIN CONCERNING THE PROCEDURES TO BE USED IN IMPLEMENTING THE CHANGE
AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
CHANGE, ITS CONDUCT WAS UNDER EITHER ALTERNATIVE VIOLATIVE OF SECTION
7116(A)(1) AND (5) OF THE STATUTE. /4/ FOR THE SAME REASON, THE
RESPONDENT'S ACTION IN PLACING EMPLOYEES IN A LEAVE-WITHOUT-PAY STATUS
ON OR ABOUT SEPTEMBER 25, 1979, WITHOUT PROVIDING AFGE PRIOR NOTICE AND
AN OPPORTUNITY TO BARGAIN, CONSTITUTED A SECTION 7116(A)(1) AND (5)
VIOLATION.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES IN THE ASSIGNED TOURS OF DUTY OF UNIT
EMPLOYEES, INCLUDING THE PLACEMENT OF UNIT EMPLOYEES IN A
LEAVE-WITHOUT-PAY STATUS, WITHOUT FIRST NOTIFYING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, AND AFFORDING IT AN OPPORTUNITY TO BARGAIN CONCERNING
THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH CHANGES AND ON
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THESE
CHANGES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR 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 STATUTE:
(A) UPON REQUEST, NEGOTIATE WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
CONCERNING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING CHANGES IN THE
ASSIGNED TOURS OF DUTY OF UNIT EMPLOYEES, INCLUDING THE PLACEMENT OF
UNIT EMPLOYEES IN A LEAVE-WITHOUT-PAY STATUS, AND ON APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THESE CHANGES.
(B) POST AT ALL LOCATIONS WITHIN THE CHICAGO FIELD OFFICES OF THE
SOCIAL SECURITY ADMINISTRATION, COPIES OF THE ATTACHED NOTICE ON FORMS
TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. SUCH FORMS
SHALL BE SIGNED BY THE COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE
DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION V, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES IN THE ASSIGNED TOURS OF DUTY OF UNIT
EMPLOYEES, INCLUDING THE PLACEMENT OF UNIT EMPLOYEES IN A
LEAVE-WITHOUT-PAY STATUS, WITHOUT FIRST NOTIFYING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING IT AN OPPORTUNITY TO
BARGAIN CONCERNING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH
CHANGES AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED
BY THESE CHANGES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, NEGOTIATE
CONCERNING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING CHANGES IN THE
ASSIGNED TOURS OF DUTY OF UNIT EMPLOYEES, INCLUDING THE PLACEMENT OF
UNIT EMPLOYEES IN A LEAVE-WITHOUT-PAY STATUS, AND ON APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THESE CHANGES.
(AGENCY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN 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, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: SUITE 1359-A, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS
60604 AND WHOSE TELEPHONE NUMBER IS: (312) 353-0139.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK . . . .
/2/ WITH RESPECT TO THE RESPONDENT'S ARGUMENT THAT THE CHANGES HEREIN
CONCERNED MATTERS FALLING WITHIN THE AMBIT OF SECTION 7106(B)(1), WHICH
WERE NEGOTIABLE SOLELY AT THE ELECTION OF THE RESPONDENT, THE AUTHORITY
FINDS THAT WHILE THE CHANGES HEREIN RELATED GENERALLY TO SECTION
7106(B)(1) MATTERS, THERE NONETHELESS REMAINED AN OBLIGATION FOR THE
RESPONDENT TO NOTIFY AFGE OF THE INTENDED CHANGES AND BARGAIN PURSUANT
TO SECTION 7106(B)(2) AND (3) OF THE STATUTE, WHICH PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/3/ SEE DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, 6 FLRA NO. 33(1981), IN WHICH THE AUTHORITY ADDRESSED,
AMONG OTHER THINGS, THE ESTABLISHMENT OF A NEW BARGAINING OBLIGATION
FOLLOWING UNIT CONSOLIDATION WITHIN THE SOCIAL SECURITY ADMINISTRATION.
/4/ SEE, IN THIS REGARD, DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL
SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, 5 FLRA NO. 48(1981).