[ v12 p704 ]
12:0704(134)CA
The decision of the Authority follows:
12 FLRA No. 134
DEPARTMENT OF HEALTH AND HUMAN
SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL COUNCIL
OF SOCIAL SECURITY ADMINISTRATION
FIELD ASSESSMENT LOCALS
Charging Party
Case No. 5-CA-1140
DECISION AND ORDER
The Administrative Law Judge issued his 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. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a brief in
support thereof.
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 recommendation that the complaint be
dismissed.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 5-CA-1140 be, and
it hereby is, dismissed.
Issued, Washington, D.C., August 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-1140
Mr. Wilson G. Schuerholz
For the Respondent
Mr. Earl Tucker
For the Charging Party
Claire R. Morrison, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Five, Federal Labor Relations Authority,
Chicago, Illinois against the Department of Health and Human , Services,
Social Security Administration (Respondent). The complaint alleged, in
substance, that Respondent violated sections 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et
seq. (the Statute), by changing the specialized experience required for
a claims examiner position without notifying the American Federation of
Government Employees, AFL-CIO, National Council of Social Security
Administration Field Assessment Locals (Charging Party or Union) and
bargaining on the additional requirement and on its impact and
implementation. Respondent's Answer denied that it had made any such
change or violated the Statute.
A hearing was held in this matter in Chicago, Illinois. The
Respondent, General Counsel, and Charging Party were represented and
afforded full opportunity to be heard, adduce relevant evidence, examine
and cross-examine witnesses, and file post-hearing briefs. Based on the
entire record herein, /1/ including my observation of the witnesses and
their demeanor, the exhibits, other relevant evidence adduced at the
hearing, and the briefs, I make the following findings of fact,
conclusions of law, and recommendation.
Findings of Fact
At all times material herein, Respondent has maintained its principal
office in Baltimore, Maryland and operated a facility at Chicago,
Illinois known as the Office of the Regional Commissioner, Region V
(Region Five).
On August 30, 1979 the American Federation of Government Employees,
AFL-CIO was certified as the exclusive representative of an appropriate
unit of Respondent's employees employed at its operations, activities,
facilities, areas, and districts previously represented by the Union in
separate bargaining units. At all times material herein, the American
Federation of Government Employees, National Council of SSA Field
Assessment Locals has served as agent of the American Federation of
Government Employees, AFL-CIO, acting on its behalf with respect to the
bargaining unit employees at, but not limited to, the Chicago facility.
Federal Personnel Manual 338-7, Subchapter 3, Qualification
Standards, of May 16, 1979, provides, in part, that "Qualification
standards control the movement of employees into and within the Federal
service by prescribing the experience, skills, knowledges, and abilities
required for filling positions. The person to be selected for any
position in the competitive service (whether under the General Schedule
or not) must meet the standard the OPM has established for that
position." (Respondent's Ex. 9). Likewise, Federal Personnel Manual
Letter 335-12, Revised Federal Merit Promotion Policy, of December 29,
1978 provides, in part, that "To be eligible for promotion or placement,
candidates must meet the minimum qualification standards prescribed by
the Office of Personnel Management." (Respondent's Ex. 4). The
applicable Region Five Merit Promotion Plan of June 5, 1975 also has a
similar provision, as follows:
Minimum qualification standards prescribed by the U.S. Civil
Service Commission apply to positions filled under the provisions
of this plan. Eligibility for consideration will be determined by
the Regional Personnel Officers or his designee. Requirements may
not be modified after the promotion process is under way unless an
inappropriate standard has been used through error or the
Commission issues a revised standard. (Respondent's Ex. 7, p. 9).
Federal Personnel Manual Supplement 330-1, Examining Practices,
November 1972, provides, in part, that examination announcements shall
include the qualification requirements for the position "(u)sually
described in general terms." The supplement notes that complete
qualification standards for general schedule positions are set forth in
CSC Handbook X-118. (Respondent's Ex. 3). Federal Personnel Manual
335-12, Promotion and Internal Placement, of October 25, 1973, also
states, "when it is not practicable to spell out in detail some part of
this information (duties, qualifications, etc.), the announcement
informs employees where the information can be obtained (for example, in
the promotion plan)." (Respondent's Ex. 5).
The single-agency qualification standard developed by the Civil
Service Commission (CSC) in 1963 for several positions, including Social
Insurance Claims Specialist (Disability), provides, in part, as follows
concerning the need for specialized experience:
For positions at GS-9 and above, at least 1 year of the
specialized experience must have included the development,
examination, investigation, adjudication, or authorization of
claims for disability retirement, disability and death
compensation, or administrative or other experience in the
analysis, development, or review of a disability and death
compensation program, or a disability retirement program. This
experience must have:
1. provided a knowledge of claims analysis and adjudication,
medical terms and findings, causes of diseases, treatment methods
and probable results, relations of physical impairment to ability
of claimant to work; and
2. demonstrated the ability to develop and evaluate pertinent
medical facts and evidence and to apply and interpret laws,
regulations, policies, precedents, and other criteria for
disability and death cases.
Such experience may have been gained in one or a combination of
the following ways: the practice of law which has included to a
major extent the development of disability and death or workmen's
compensation claims; experience in a Federal or State workmen's
compensation program; experience in a Federal or State agency, or
in an insurance company administering a disability and death
compensation program or disability insurance program; or
experience in Government or private industry in a disability
retirement or disability pension program. (Respondent's Ex. 10).
The individual staffing specialist prepares the summary of
qualifications for a vacancy announcement. The summary may vary from
posting to posting. However, it must reference the applicable
qualification standard, which is available to applicants and employees
upon request. (Tr. 58-59).
On or about May 4, 1979 Respondent issued a vacancy announcement for
Social Insurance Claims Examiner (Disability) (Disability Reviewer),
GS-993-12. The announcement referenced the CSC Handbook, X-118, GS-993
qualification standard and contained the following under specialized
experience:
Specialized Experience: Three years of experience in the
development, examination, investigation, adjudication or
authorization of claims for retirement, old-age or survivor's
insurance, disability insurance, pension claims, health insurance,
income maintenance, supplemental security income, and related
programs or experience that provided a broad knowledge of the
policies and provisions of the Social Security insurance program
and an understanding of how the program is related to other social
insurance programs of the Federal and/or other governments. In
addition to qualify for these vacancies applicants must have had
either formal disability training or one year of experience as a
Social Insurance Claims Examiner (Disability). (General Counsel's
Ex. 5).
In late May 1979, Earl P. Tucker, Jr., president of the Charging Party
and a vice president of Local 1395, contacted John D. Alcock, chief of
the staffing branch of Region V of the Department of Health and Human
Services, concerning the announcement. Mr. Tucker objected to the last
sentence requiring "either formal disability training or one year of
experience as a Social Insurance Claims Examiner (Disability)." He
stated that the requirement would rule out many bargaining unit
employees from qualifying for the position. (Tr 20, 64). Subsequently,
Mr. Tucker confirmed his objection by letter dated May 25, 1979, noting
that the requirement had not been on prior announcements and requesting
that the announcement be reposted without the above statement. (General
Counsel's Ex. 3).
Mr. Alcock reviewed the qualification standard and determined that
the standard made no reference to formal disability training as a
minimum requirement. As to the requirement for one year of experience
as a Social Insurance Claims Examiner, Mr. Alcock determined that,
although such experience was qualifying, the announcement was too
restrictive, as the standard did not limit consideration of disability
claims experience to that gained in a Social Insurance Claims Examiner
position. Mr. Alcock advised Mr. Tucker that the announcement would be
amended to remove the statement. (Tr. 65-67; General Counsel's Ex. 4).
The announcement was amended to remove the objectionable last
sentence, and the closing date was extended. (General Counsel's Ex. 5).
The one year disability claims experience, as specified in the
standard, was still required and considered in evaluating applicants for
eligibility. (Tr 69).
On or about December 2, 1980 Respondent issued another vacancy
announcement for the same position. The CSC qualification standard was
referenced as before. However, there was added under "specialized
experience," the sentence, "At least one year of the specialized
experience must have been in Disability Claims." (General Counsel's Ex.
7). No prior notice of this action was provided to the Union.
By letter dated January 23, 1981, Donald Jones, president, AFGE Local
1395, advised Respondent that the requirement for one year of disability
claims experience violated the previous agreement with the Union to
delete the disability experience requirement, represented a change from
past practice, and should have been negotiated with the Union. Mr.
Jones made the following proposals for negotiation:
1. Posting EOO-168 (CR-238) should be withdrawn and an amended
posting issued to remove any reference to a requirement for
Disability experience. This would allow those employees to file
who did not file previously because they did not believe they
would be found eligible.
2. No appointments to the position should be made until
negotiations with the Union have been complete. (General
Counsel's Ex. 8).
By letter dated January 29, 1981, Robert P. Flynn, field assessment
officer, advised Mr. Jones, "Qualifications requirements are not matters
within the discretion of FAO management and, consequently, not matters
on which the FAO may negotiate." (General Counsel's Ex. 9).
The requirement of one year specialized experience in disability
claims excludes a large number of unit employees from qualifying for the
position. Most of the work modules do not deal with disability claims
or cases. Consequently, the majority of unit employees do not have
disability claims experience. (Tr. 25, 26, 47).
Discussion, Conclusions, and Recommendations
The General Counsel and Charging Party contend that the December 2,
1980 requirement for one year of specialized experience in disability
claims for the Social Insurance Claims Examiner position constituted a
unilateral change in what had become an established condition of
employment. As urged by Respondent, a preponderance of the evidence
does not support this position.
The evidence reflects that the requirement for one year of
specialized experience in disability claims has been consistently
required since 1963 in accordance with the CSC, now OPM, qualification
standard. The understanding reached in 1979 that Respondent would
delete from the May 1979 vacancy announcement the requirement for formal
disability training or one year of experience as a Social Insurance
Claims Examiner (Disability) did not constitute an agreed change in the
minimum qualification standard for the position. It was, rather, in
accordance with the standard. It was an acknowledgement that the 1979
announcement was not an accurate summary of the standard.
Respondent has not imposed an additional requirement or made a
unilateral change in a term and condition of employment in violation of
sections 7116(a)(1) and (5), as alleged. /2/ Based on the foregoing
findings and conclusions, I recommend that the Authority adopt the
following Order:
Order
It is hereby Ordered that the Complaint in Case No. 5-CA-1140 be, and
it hereby is, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: November 15, 1982
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ The transcript is hereby corrected as set forth in the General
Counsel's unopposed motion.
/2/ Since no actual or contemplated change was made in conditions of
employment, it is unnecessary to pass upon whether the duty to bargain
in good faith would otherwise extend to the matter proposed to be
bargained. See section 2424.5 of the Authority's Rules and Regulations.
Cf. 182nd Tactical Air Support Group, Illinois Air National Guard, 10
FLRA No. 63 (1982).