12:0108(30)CA - HHS, SSA, Bureau of Field Operations, San Francisco, CA and AFGE Council of SS District Office Locals, San Francisco Region -- 1983 FLRAdec CA
[ v12 p108 ]
12:0108(30)CA
The decision of the Authority follows:
12 FLRA No. 30
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION,
BUREAU OF FIELD OPERATIONS,
SAN FRANCISCO, CALIFORNIA
Respondent
and
AFGE COUNCIL OF SOCIAL SECURITY
DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION
Charging Party
Case Nos. 9-CA-320
9-CA-322
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaints, and
recommending that the complaints be dismissed. No exceptions were filed
to the Judge's Decision.
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, and noting especially the
absence of exceptions, the Authority hereby adopts the Judge's findings,
conclusions and recommendations.
ORDER
IT IS HEREBY ORDERED that the complaints in Case Nos. 9-CA-320 and
9-CA-322 be, and they hereby are, dismissed.
Issued, Washington, D.C., June 2, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case Nos.: 9-CA-320, 9-CA-322
-------------------- ALJ$ DECISION FOLLOWS --------------------
Wilson Schuerholz, Esquire
For the Respondent
Nancy E. Pritikin, Esquire
For the General Counsel
Vince Morgante, Chief Steward
For the Charging Party
Before: BURTON S. STERNBURG
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., and the Rules and Regulations issued
thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5
C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to separate charges filed on February 11, 1980, in Case Nos.
9-CA-322 and 9-CA-320, by AFGE Council of Social Security District
Office Locals, San Francisco Region, (hereinafter called the Union),
complaints and notices of hearing were issued on May 19 and April 30,
1980, respectively, by the Regional Director for Region IX, Federal
Labor Relations Authority, San Francisco, California. The complaints,
which were consolidated at the hearing, allege that the Department of
Health and Human Services, Social Security Administration, Bureau of
Field Operations, San Francisco, California, (hereinafter called the
Respondent or SSA), violated Sections 7116(a)(1) and (5) of the Federal
Labor-Management Relations Statute, (hereinafter called the Statute), by
unilaterally (1) making attendance at weekly staff meetings mandatory
and (2) transferring work from the Branch Office to the District Office,
without giving prior notice of such changes to the Union and affording
it the opportunity to bargain over the impact and the manner of
implementation of such changes. /1/
A hearing was held in the captioned matter on September 23, 1980, in
San Francisco, California. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The parties submitted
post hearing briefs on November 7, 1980, which have been duly
considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions of law and recommendations.
Findings of Fact
Respondent operates a District Office and two Branch Offices in San
Francisco, California. The Branch Offices, known as the "Chinatown" and
"Western Addition", are located only a few miles from each other and the
District Office. The employees working in the District Office and the
two Branch Offices do basically the same type of work. The Union, which
is the charging party herein, is the exclusive representative of the
employees working in the District Office and the two Branch Offices.
Alleged unilateral change making attendance at weekly Staff Meetings
mandatory:
During the period of time when the alleged violations occurred,
employees working in the District Office of Respondent were on
flexitime. The flexible bands were from 7 a.m. - 9 a.m. and 3:30 p.m. -
5:30 p.m. Because of the flexitime schedule, many employees did not
attend the weekly staff meetings held every Tuesday at 8 a.m.
On October 23, 1979, Mr. Kenneth Krueger, the newly appointed
Operations Officer, distributed a notice to all employees and posted a
copy of same next to the time clock. The notice informed the employees
that henceforth attendance at the Tuesday weekly staff meetings would be
mandatory. Mr. Krueger also made a similar announcement at the staff
meeting held on October 23, 1979. Thereafter, beginning with the staff
meeting held on October 30, 1979, employees who failed to attend the
weekly staff meetings were forced to take annual leave.
According to Mr. Krueger, whom I credit, the October 23rd notice was
prompted by the non-attendance of some 10 to 20 employees /2/ at the
October 16, 1979, staff meeting which consisted of a presentation by Mr.
Jere McEvilly, a Supervisory Social Insurance Specialist from
Respondent's Regional Office. /3/ Mr. McEvilly discussed the new IRS
procedures for employers reporting social security wage information to
IRS and how the SSA employees would be involved.
Mr. Krueger further testified that he had met with Ms. Denise Chun, a
union representative, on October 18, 1979, and discussed the employees
non-attendance at the October 16th weekly staff meeting and informed her
of his intention to make attendance at such future meetings , mandatory.
Mr. Krueger told Ms. Chun that he was concerned about the
non-attendance since the Flexitime Plan made it clear that staff
meetings were considered a part of core time, a period in which all
employees were to be at work. After studying the Flexitime Plan, Ms.
Chun inquired as to how Mr. Krueger intended to handle the announcement
of the change. Mr. Krueger informed Ms. Chun that he would make a desk
to desk distribution and also post the announcement next to the time
clock. According to Mr. Krueger, Ms. Chun expressed agreement.
On October 24, 1979, Mr. Krueger, as per his past practice, sent Ms.
Chun a copy of his "minutes" of the October 18th meeting. The "minutes"
noted, among other things, that consultation of the mandatory attendance
at weekly staff meetings was concluded, weekly staff meetings henceforth
would be mandatory, and the staff will be so informed.
On October 30, 1979, Ms. Chun, who had been on annual leave the week
before, submitted a requested modification of Mr. Krueger's October 24th
"minutes". The modification, among other things, noted that
consultation with respect to mandatory attendance at weekly staff
meetings "has not begun". Subsequently, Ms. Chun sent a number of
written requests to Mr. Krueger for additional "consultation" on the
weekly staff meeting issue.
According to Ms. Chun, the first announcement concerning mandatory
attendance at weekly staff meetings was made by Mr. Krueger at the
October 16th staff meeting without any prior notice to the Union. /4/
Further, according to Ms. Chun, she then requested the meeting with Mr.
Krueger which occurred on October 18th. Ms. Chun acknowledges that she
and Mr. Krueger did discuss the mechanics of adequate notice to
employees at the October 18th meeting but neither denies nor admits that
she acceded to Mr. Krueger's proposal concerning mandatory attendance at
weekly staff meetings. Unilateral Transfer of Cases From Chinatown
Branch Office to District Office:
On an unspecified date in October 1979, Respondent, due to a loss of
a number of employees in the Chinatown Branch Office, transferred,
without prior notice to the Union, approximately 40 overpayment cases to
the District Office. A similar transfer involving approximately 100
cases was effectuated in November 1979. The cases were assigned to Ms.
Hallie Evans for processing.
According to Ms. Evans, who normally processes approximately 4000
similar, if not identical, cases per year, she was told to work the
Chinatown cases into her never ending log of pending overpayment cases.
With respect to the method or manner of processing overpayment cases,
it was Ms. Evans responsibility to compute the amount of overpayments
and have a number of typists send appropriate letters to the respective
recipients of the overpayments. In the event a reply to the letters was
not received within a 30 day period, a telephone or field contact was
then attempted. Of the approximately 140 Chinatown Branch overpayment
cases reassigned to Ms. Evans, some 80 were subsequently returned to the
Chinatown Branch for future field contact. Further, according to Ms.
Evans, she finished all her required work on the Chinatown cases by
January 1980.
Ms. Evans testified with respect to time targets for the processing
of overpayment cases as follows:
Q. Do you have anything like time targets or any kind of time,
optimum time?
A. Well, I personally don't like to see a name on a list that
was on a previous list, but it is impossible because of some of
the cases and the situations that are involved. I don't really
have any deadline.
Q. Are there any processing goals?
A. We have them, yes.
Q. What are your processing goals?
A. I'm not-- well, on non pay cases I would say about 60 days,
if possible. /5/
Discussion and Conclusions
Both parties correctly acknowledge that resolution of the issue
concerning mandatory attendance at weekly staff meetings turns on
credibility. Thus, Respondent takes the position that the evidence
supports its position that it did give notice and bargain to agreement
before making attendance at the weekly staff meetings mandatory. The
General Counsel, of course, argues to the contrary.
Based primarily on his demeanor and the corroborating testimony of
Mr. McEvilly concerning what occurred at the October 16, 1979, meeting,
I credit Mr. Krueger's testimony that he did give notice to, and bargain
to agreement with, the Union prior to announcing on October 23, 1979,
that henceforth attendance at weekly staff meetings would be mandatory.
Accordingly, I shall recommend that the complaint in Case No. 9-CA-320
be dismissed in its entirety.
Turning now to the second issue, i.e. unilateral transfer, without
prior notice to the Union, of approximately 100-120 overpayment cases
from the Chinatown Branch to the District Office. Resolution of this
issue turns on whether or not the transfer impacted on the working
conditions of the District Office unit personnel. In the absence of any
showing of impact on unit personnel, Respondent was under no obligation
to give notice to, and bargain with, the Union over such transfer.
Contrary to the contention of the General Counsel, I find that the
record falls short of establishing that the transfer of the overpayment
cases resulted in any significant impact on the District Office unit
personnel. In fact on the basis of the record, I am hard pressed to
find any impact other than a possible speculative one. Thus, it is
noted that Ms. Evans, the employee primarily affected by the transfer,
testified that the cases were to be worked in to her every day work load
as she had time, that there would be no consequences if she "had
processed them late", and that if there were any time targets, such time
targets were 60 days if possible. In the absence of any showing of
established and/or enforced time targets for processing cases, I can not
find that a 3% increase in an employee's yearly case load, due to an
emergency situation, created any significant impact on the employee's
working conditions. Cf. Social Security Administration, Bureau of
Hearings and Appeals and AFGE, Local 3615, 2 FLRA No. 27; Department of
Defense, Air National Guard, Texas Air National Guard, Camp Mabry,
Austin, Texas, wherein similar results were reached under Executive
Order 11491, as amended. Accordingly, I shall recommend that the
Complaint in Case No. 9-CA-322 be dismissed in its entirety.
Having concluded that Respondent did not violate Sections 7116(a)(1)
and (5) of the Statute, I recommend that the Authority adopt the
following order:
ORDER
It is hereby ordered that the complaints in Case Nos. 9-CA-320 and
9-CA-322 should be, and hereby are, dismissed in their entirety.
BURTON S. STERNBURG
Administrative Law Judge
Dated: January 30, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ At the opening of the hearing, General Counsel was granted leave
to withdraw the allegations set forth in the May 19th consolidated
complaint which were predicated on charges filed in Case Nos. 9-CA-196,
9-CA-333 and 9-CA-334. Accordingly, the only issues left for resolution
are those set forth supra.
/2/ The record indicated that only about 70 of the 90 employees in
the District Office attended the October 16th meeting.
/3/ The San Francisco District Office and 56 other District Offices
comprise the Region.
/4/ According to Ms. Chun, there were approximately 70 employees
present at the October 16th meeting. Ms. Chun further testified that in
addition to Mr. Krueger's announcement concerning the mandatory nature
of the weekly staff meetings, there "probably" was a discussion of
statistics and vacancies. Mr. Krueger denies making the announcement on
October 16th and points out that the entire meeting was taken up by Mr.
McEvilly's presentation. Mr. McEvilly corroborates Mr. Krueger's
testimony. According to Mr. McEvilly, he arrived at the meeting about
7:50 a.m. and remained in the meeting area until 9 a.m. Further, his
presentation consumed the whole period and he did not hear any
announcements. The only other evidence in the record concerning the
weekly staff meetings is the testimony of Ms. Dianne Lawrence.
According to Ms. Lawrence, she recalls two meetings in 1979 wherein it
was announced that attendance at weekly staff meetings would be
mandatory. She does not, however, have any recollection of the dates of
such meetings.
/5/ No other probative evidence concerning time targets or case
processing goals for overpayment cases appears in the record.