15:0070(15)CA - Office of Program Operations, Field Operations, SSA, San Francisco Region and AFGE, Council of SS District Office Locals, San Francisco Region -- 1984 FLRAdec CA
[ v15 p70 ]
15:0070(15)CA
The decision of the Authority follows:
15 FLRA No. 15
OFFICE OF PROGRAM OPERATIONS
FIELD OPERATIONS
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
SECURITY DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION
Charging Party
Case No. 8-CA-366
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Exceptions to the Judge's Decision were filed by the Respondent.
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 were hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, as modified below.
The complaint alleged that the Respondent violated section 7116(a)(1)
and (5) of the Statute by unilaterally changing the job duties of Title
XVI Claims Representatives at its Indio, California Branch Office
without first notifying the Charging Party and affording it an
opportunity to bargain over the impact and implementation of the
aforementioned change, and additionally violated section 7116(a)(1), (5)
and (8) of the Statute by conducting a meeting with unit employees
concerning conditions of employment without first notifying the Charging
Party and giving it an opportunity to be present at the meeting. /1/
As found by the Judge, the Charging Party's representative received a
written agenda from the Respondent's District Manager for a monthly
labor-management meeting. Among the items contained in the District
Manager's agenda was a proposal that would require Title XVI Claims
Representatives at its Indio Branch Office to perform additional duties;
i.e., to complete certain medical forms that previously had been the
work of Title II Claims Representatives at the same branch office. The
Charging Party responded to the District Manager's proposal by
submitting an agenda for the up-coming labor-management meeting which
contained four written counterproposals. At that meeting, the parties
discussed the District Manager's proposal and the Charging Party's first
proposal, and also agreed to consider hiring another Title II Claims
Representative, as the Charging Party requested in its second proposal,
but indicated that this could not be done immediately. With respect to
the Charging Party's third proposal, which would have required the
Respondent to detail a District Office Title XVI Claims Representative
with the lowest pending backlog to work on certain other matters, and
its lowest pending backlog to work on certain other matters, and its
fourth proposal, which would have prohibited the agency from assigning
new job duties to Title XVI Claims Representatives for more than sixty
days, the District Manager took the position that these proposals raised
matters which were management's rights and that he had no intention of
bargaining on such items.
A few days later, pursuant to a directive from the District Manager
to implement the change in assignments, the Respondent's Indio,
California Branch Manager called a staff meeting which was held in the
all-purpose room and attended by unit employees and possibly another
supervisor. At the meeting, the Branch Manager announced that
henceforth Title XVI Claims Representatives would be required to perform
additional duties; i.e., perform work previously assigned to the Title
II Claims Representatives. After the announcement, several employees
discussed the subject with the Branch Manager, explaining why they
believed the assignment of additional duties to them was inequitable.
It is undisputed that the Charging Party was not apprised of the
aforementioned meeting, which lasted about 15 minutes, and that its
representative was not in attendance.
In disagreement with the Judge, the Authority finds that the
Respondent did not violate section 7116(a)(1) and (5) of the Statute by
its failure to notify the Charging Party and afford it an opportunity to
bargain over the impact and implementation of certain changes in the job
duties of Title XVI Claims Representatives. The record shows that the
Charging Party was notified of the Respondent's proposed change in the
job duties of certain unit employees prior to a monthly labor-management
meeting; that it prepared and submitted four counterproposals; and
that it subsequently met and discussed such items items with the
Respondent. The record further indicates that the Respondent agreed to
the Charging Party's first proposal, agreed to consider or implement its
second proposal at an unspecified future date, and took the position
that the Charging Party's third and fourth proposals were, in substance,
nonnegotiable. Based upon the foregoing, the Authority finds that the
Respondent met its duty to bargain in good faith with respect to the
first two proposals. Additionally, the Authority finds that proposals
three and four, which would require a Claims Representative with the
lowest pending backlog to perform certain work and would prohibit the
agency from assigning new job duties to certain Claims Representatives
for more than sixty days, respectively, directly interfere with
management's right under section 7106(a)(2)(B) of the Statute /2/ to
assign work, and therefore were outside the Respondent's duty to
bargain. See American Federation of Government Employees, AFL-CIO and
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
FLRA 603 (1980) (Union Proposal XVI), affirmed sub nom., Department of
Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, sub nom,
AFGE v. FLRA, 455 U.S. 945 (1982). See also National Treasury Employees
Union and Department of the Treasury, Internal Revenue Service, 6 FLRA
508 (1981) (Union Proposal V). Accordingly, that portion of the
complaint shall be dismissed.
However, the Authority agrees with the Judge's conclusion that the
staff meeting with unit employees at the Indio Branch Office was a
formal discussion under section 7114(a)(2)(A) /3/ of the Statute. /4/
Thus, the meeting was initiated by management and was conducted in a
central office location by the head official in the Branch Office while
another supervisor may have been in attendance; unit employees were
required to attend the meeting; and the meeting was called for the
specific purpose of announcing changes directly affecting unit
employees' conditions of employment. While the meeting only lasted
about 15 minutes, the Authority concludes that it was "formal" in nature
and, under the circumstances, the exclusive representative was entitled
to be apprised of such meeting and given an opportunity to be present.
See, e.g., Internal Revenue Service (District, Region, National Office
Unit), 11 FLRA No. 23 (1983). Accordingly, the Authority finds that the
Respondent violated section 7116(a)(1) and (8) of the Statute because of
its failure to comply with section 7114(a)(2)(A). /5/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions with bargaining unit
employees without first providing the American Federation of Government
Employees, AFL-CIO, Council of Social Security District Office Locals,
San Francisco Region, on behalf of the American Federation of Government
Employees, AFL-CIO, appropriate advance notice and an opportunity to be
represented at such formal discussions.
(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 Statute:
(a) Notify the American Federation of Government Employees, AFL-CIO,
Council of Social Security District Office Locals, San Francisco Region,
on behalf of the American Federation of Government Employees, AFL-CIO,
and afford it the opportunity to be represented at formal discussions
with bargaining unit employees.
(b) Post at its facilities at the Social Security Branch Office,
Indio, California, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Branch Manager, or his designee,
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 ensure 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 VIII, 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.
IT IS FURTHER ORDERED that those allegations of the complaint found
to be without merit be, and they hereby are, dismissed.
Issued, Washington, D.C., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 hold or conduct formal discussions with bargaining unit
employees without first providing the American Federation of Government
Employees, AFL-CIO, Council of Social Security District Office Locals,
San Francisco Region, on behalf of the American Federation of Government
Employees, AFL-CIO, appropriate advance notice and an opportunity to be
represented at such formal discussions.
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 notify the American Federation of Government Employees,
AFL-CIO, Council of Social Security District Office Locals, San
Francisco Region, on behalf of the American Federation of Government
Employees, AFL-CIO, and afford it the opportunity to be represented at
formal discussions with bargaining unit employees.
(Activity)
Dated: . . . By: . . .
(Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority whose address
is: 350 Figueroa Street, 10th Floor, Los Angeles, CA 90071, and whose
telephone number is: (213) 688-3805.
-----------------
OWS ---
Joseph Swerdzewski, Esqs.
For the General Counsel
Wilson G. Schuerholz
For the Respondent
Jeffrey H. Dasteel,
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Consolidated /6/ Complaint and Notice of Hearing issued
on April 30, 1980 by the Regional Director for the Federal Labor
Relations Authority, Los Angeles, California Region, a hearing was held
before the undersigned on November 19, 1980 at Palm Springs, California.
The proceeding arose under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (herein called
the Statute). It is based upon a first amended charge filed on April
28, 1980 by American Federation of Government Employees, AFL-CIO,
Council of Social Security District Office Locals, San Francisco,
California (herein called the charging party or the Union) against
Office of Program Operations, Social Security Administration, San
Francisco, California Region (herein called Respondent).
The complaint alleged, in substance, that Respondent engaged in
certain unfair labor practices within the meaning of section 7116(a)(1),
(5) and (8) of the Statute, by unilaterally changing the job duties of
the Title XVI claims representative at its Indio, California Branch
Office, without first notifying the union, and affording it an
opportunity to bargain; and, by conducting a meeting with unit
employees on February 4, 1980, concerning conditions of employment,
without first notifying the Union and giving it an opportunity to be
present.
Respondent filed an Answer in which it denied the commission of any
unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine and
cross-examine witnesses. Thereafter timely briefs were filed with the
undersigned which have been duly considered.
Upon the entire record in this case, from my observation of the
witnesses and their demeanor, and from all of the testimony and evidence
adduced at the hearing, I make the following findings and conclusions.
Findings of Fact
At all times material herein the Union has been the collective
bargaining representative of the employees employed at Respondent's
Indio, California Branch office.
A. Labor-Management Meeting of January 31, 1980
Around January 23, 1980, Victoria Doyle, then the Union
representative for the Palm Springs District Office received a written
agenda from Palm Springs District Manager, Martin Semel, for a monthly
upcoming labor-management meeting. Doyle as union representative in
Respondent's Palm Springs District was charged with the responsibility
of negotiating with management. Among the items contained in Semel's
agenda was a proposal that "Title XVI claims representatives do the
medical part of the interview and development in concurrent claims," at
the Indio, California, Branch Office, a part of the Palm Springs
District. This proposal required the Title XVI claims representatives
rather than the Title II claims representatives who had formerly done
such work, to complete the necessary medical forms for concurrent
claims.
The record disclosed that concurrent claims are those claims filed
for benefits under both disability programs administered by Respondent.
Title II claims representatives work involves standard Social Security
Disability Benefit payments while Title XVI claims representatives
completed interview forms related solely to the Supplemental Security
Income Program. Although claimant's must establish disability to be
entitled to payment under either program the portions of forms required
to be filled out by claims representatives differ, because eligibility
requirements for payment under the programs are different. The
eligibility of one being determined on economic need and the other on
actual disability if the claimant has Social Security coverage. In any
event, medical disability must be established by the claimant on either
form, but certain differences exist as to what is required in filling
out either of the forms. Title XVI claims representatives were not
required to have knowledge of "date of onset" since payment of those
claims were commenced as of the date of application and not date of
injury, illness or disability. On the other hand, "date of onset" is
extremely critical to Title II claims, since payment can be made to a
claimant retroactively for an entire year, depending on how the form is
completed. According to the record, establishment of a correct date of
onset of disability can be difficult and in addition a determination as
to whether a claimant has engaged in substantial employment since the
alleged date of disability must also be made.
Concurrent claims, by claimant's seeking determination as to
eligibility for Title II and Title XVI benefits were generally completed
prior to January 1980 in the Indio office by Title II claims
representatives. Although on rare occasions prior to the incidents
giving rise to this matter Title XVI claims representatives did complete
concurrent claims, on a voluntary basis.
In addition to submitting a Union agenda, Doyle on January 24, 1980
responded by submitting four written counterproposals relating to the
handling of concurrent claims in Indio. The counterproposals were:
1. Extensive training be given the Title XVI CRs on form SSA 3368
specifically question 1, 20-40 being met.
2. The next available hiring slot in the District be directed toward
obtaining a T2 CRfor the Indio Branch Office.
3. The D.O. Title XVI CRwith the lowest pending (until such time as
the D.O. redets are released) be detailed twice a week to work on the
B.O. redet listings.
4. Your proposed change put in effect not to exceed 60 days.
In the counterproposal, Doyle also requested bargaining on the
proposed changes.
On January 31, 1980 Doyle and Semel met. One of the agenda subjects
discussed was the handling of concurrent claims in the Indio office and
Samel's January 23, 1980 proposal. Semel and Doyle began by discussing
the Union's first counterproposal. Doyle requested that training be
given to the Title XVI claims representatives on question one on the
Disability Report, or Form 3368. Semel agreed to this proposal. They
then proceeded to discuss counterproposal two. Again Semel agreed to
consider, in the future, hiring another Title II claims representatives
for Indio, and informed Doyle that at that time no hiring could be done.
Exactly what was said next by the parties is in dispute. According
to Doyle, when they reached counterproposal three, Semel informed her
that this issue was a "management right" and that he would "do what he
wanted". Doyle then asserted her right to bargain and Semel replied: "
. . . he was not bargaining, he had not been bargaining and he would not
ever bargain." Semel testified that when the parties reached the Union's
counterproposal four he did say to Doyle that he would not bargain. /7/
Further, it appears that the parties did discuss the duration of the
change, however, Semel said that he could not bargain. Although the
parties' remained in the meeting and discussed other unrelated matters
there was no further discussion relating to the counterproposals.
Upon leaving the meeting, Doyle telephoned the Indio office to ask
employees there to inform her the moment any change was put into effect.
Shortly after the meeting Semel also called the Indio Office Branch
Manager Ramon Velarde and told him to make the claims representative
change in assignments. Semel, at that time, instructed Velarde to give
the claims representatives "whatever training was necessary."
The Title XVI claims representatives continued to work on concurrent
claims for approximately six-months thereafter before discontinuing that
assignment.
B. February 4, 1980 Announcement of Changes
On approximately February 4, 1980, at the beginning of the work day,
Mr. Ramon Velarde, Respondent's Indio Branch Manager called a staff
meeting at which the claims representatives, data review technicians and
possibly Tom Freeland, a supervisor in the Indio office, were present.
Velarde told the staff that commencing that day at 9:00 A.M., the Title
XVI claims representatives would be required to complete all medical
documentation necessary for concurrent claims filed in the Indio office.
Claims representative Carol Cofflin recalls that Velarde told the group
that the change was temporary depending on how many interviews were
coming in.
After Velarde made this announcement to the staff, several employees
discussed the subject with Velarde, and explained to him that, in their
view, the imposition of this additional duty seemed inequitable. These
employees, emphasized that the new task would add significant time to a
Title XVI claims representative's duties which already required nearly
an hour for every new claim interview, whereas the Title II claim
interview took only fifteen minutes. /8/ In response, the claims
representatives were told by Velarde that the Title II claims
representatives needed assistance, and that this was the procedure which
would now be followed in the office. There were no instructions on how
to complete the forms, and the particular items on the forms were not
discussed. The entire meeting, according to the recollections of those
who testified lasted between five and fifteen minutes. There was no
training given as to how the medical forms were to be filled out.
Shortly after the February 4, 1980 meeting, Doyle received a
telephone call from an unidentified employee in the Indio Branch Office
informing her that the change had been announced at a staff meeting that
morning and "that they were to implement the change immediately."
The task of completing the medical forms for concurrent claims
involves completing four separate forms. The Disability Report, or Form
3368, requires fifteen to forty-five minutes to complete; the Work
Activity Report, or Form 821, requires an additional five to thirty
minutes to complete; the Vocational Report, or Form 5369, ten to thirty
minutes; and the Medical Release, or Form 827, a few minutes. On the
average, the medical forms take thirty to forty-five minutes to
complete.
Prior to the change announced on February 4, 1980, the Title XVI
claims representatives had completed the medical forms for Title XVI
claims on only an occasional basis, only two to three times a month for
Title XVI claims. In addition, Title XVI claims representatives had
completed the concurrent forms approximately ten times a month. Pat
Block a Title XVI claims representative in the Indio Office testified
that she completed these forms only once a month. However, after
February 4, 1980 Title XVI claims representatives became responsible for
completing all medical forms, consequently, their duties were increased
substantially. As Block testified, completing the concurrent forms four
or five times each week increased here responsibilities sixteen to
twenty times in this area. Another Title XVI claims representative in
the Indio office, Carol Cofflin testified that completing the concurrent
forms twenty times per month more than doubled the number of times she
was required to fill out such forms.
With this change in assignment all Title XVI claims representatives
were responsible for filling out each of the four medical forms
(Disability Report, Work Activity Report, Vocational Report and Medical
Release) for each concurrent medical claim; these numbered
approximately twenty per week. The new assignment, according to Cofflin
meant four to six additional medical claims a week, each claim requiring
an average of forty-five minutes of additional work for an average of
three to four extra hours of work per week, in addition to all their
other duties. Cofflin also testified that during that period of time
when there were only three Title XVI claims representatives, a Title XVI
claims representative had to complete six to seven concurrent medical
claims per week because almost every claim coming into the office was a
concurrent claim. /9/ Cofflin further asserted that in cases where the
claimant was not sure of his qualifications, the office policy, or at
least the practice among claims representatives was to take the Title II
medical portion as well, making the claim concurrent in nature. Thus,
purely Title XVI claims were only occasionally or rarely processed.
With regard to experience, Cofflin stated that those Title XVI claims
representatives who happened to have had previous Title II experience
had an advantage over those who did not; and, there were indeed, Title
XVI claims representatives in the office who had no previous Title II
experience. Lacking experience these Title XVI claims representatives
had to become concerned with accurately filling out the portion of the
forms concerning date of onset of disability to ensure that the claimant
received proper benefits. This new responsibility required extensive
interviewing by the claims representative since, as previously stated,
the claims representative's initial determination could result in the
grant or denial of substantial amounts of benefits to a particular
claimant based on the date of onset. Finally, as Respondent asserts,
the new assignments to Title XVI claims representatives did indeed
create much more work for them, a result which management desired to
achieve.
C. Past Bargaining Relationship
The parties' usually met on a monthly basis and bargained, coming to
mutual agreement on various Union proposals according to Union
representative Doyle. Doyle further testified that she had engaged in
back and forth bargaining with Assistant District Manager, Esther Mata.
Doyle also testified that she bargained with management over such
subjects as: procedures to be followed in shipping old files to
storage. In which instance the Union presented written proposals which
were negotiated accepted and implemented by management; the
alpha-breakdown for the date review technicians where the Union
presented a breakdown supported by written statistical information which
was accepted, almost to the letter, and implemented by management; the
updating of the emergency manual on safety procedures and training on
how employees were to keep track of the quantity of their work; and,
(DOWR training) where management agreed and gave the training.
Respondent agreed that the parties had bargained at that level.
Thus, according to Semel, the parties had indeed reached mutual
agreement on a union counterproposal concerning the alpha breakdown for
the date review technicians. He also stated that he had agreed to
follow up on a union proposal to look into hygiene in the Indio Branch
restrooms; and, that in response to Union proposals to conduct safety
training, he agreed to give the training. Further, Semel agreed that he
had met with the Union on a monthly basis. /10/ Even at the January 31,
1980, meeting where the subject of concurrent claims had been discussed,
Doyle, on behalf of the Union, made a proposal over which she and Semel
bargained, and to which Semel ultimately agreed. Thus, it appears that
the parties had bargained back and forth until they began to discuss
counterproposal three.
Respondent presented witnesses to show the bargaining relationship
between the parties and that the Master Agreement limits the union's
rights to consultation at the District level. /11/ Area Director
Marjorie Lee testified that she participated in negotiations of the
Master Agreement, particularly Article 1 which defines the wording of
the Agreement. According to Lee, her understanding of the relationship
between the union and management at the District level was that the
parties were to consult, and she maintained that this was reflected in
the Master Agreement "negotiations shall take place only at the Regional
and District levels." She also stated, without pointing to any
particular section of the contract, that the parties had agreed at
contract negotiations to limit their relationship to one of
consultation. Lee also testified that Article 1 which sets forth the
definition of consultation in Section 7 was a definitional section only,
to be used to interpret the terms of the Master Agreement.
Lee further pointed out that the contract provided for negotiations
at Article 15, Sections (A) and (C); rest periods and overtime) and at
Article 18, Section A (use of leave) of the Master Agreement. Lee was
unable to point to any provision in the Master Agreement which provided
for district level consultations. She stated that the contract was
silent on this point. Finally, Lee testified that there was no existing
written understanding of what the union-management relationship was in
Palm Springs, and that she had never observed or participated in any
dealings between the Palm Springs District Director and the Union.
Discussion and Conclusions
A. Obligation to Negotiate Concerning Assignments
Respondent submits that the instant situation revolves around the
parties interpretation of the San Francisco Master Collective Bargaining
Agreement and what that agreement provides for concerning bargaining at
the District level. Respondent, therefore, contends that the
appropriate resolution of the matter as to the meaning of the Master
Agreement, is through the procedures established in the agreement. In
Respondent's opinion, its obligation at the District level under the
Master Agreement is limited to consultation. The argument here is
identical to that made in Department of Health and Human Services,
Social Security Administration, Office of Program Operations and Field
Operations, Sutter District Office, San Francisco, California, 5 FLRA
No. 63 (April 1981). There the Respondent contended that it was not
obligated to negotiate with the union, only consult. In that case the
identical collective bargaining agreement was at issue. However, the
Authority found that the Sutter District office involved in that matter
was acting as an agent for the Region, and as such, its actions were
binding upon the Region. The question in this matter is not one of
definition of "consultation" or "negotiation" as Respondent would urge,
but one of whether Respondent had an obligation, when making changes in
terms and conditions of employment to meet with and bargain with the
union at the level at which the changes occurred. An argument that the
terminology of the collective bargaining agreement constitutes a waiver
is outdated. Unless there is mutual agreement to limit an obligation to
bargain the obligation is clearly to "negotiate" rather than as
Respondent contends to consult. Report and Recommendations on the
Amendments to Executive Order 11491, as amended from the Federal Labor
Relations Council, January 1975 at 41-42. The wording of the contract
in this matter does not constitute a waiver. Moreover, as
Administrative Law Judge Arrigo stated after reviewing this same
collective bargaining agreement in the Sutter case, supra, I do not find
that the union waived its statutory right to negotiate on the matters at
issue herein. I am compelled to follow the Authority's reasoning in the
Sutter case, in the instant matter and find no waiver herein.
Likewise, Respondent's argument that assuming that there is an
obligation to bargain on the District level, the subject matter herein
is non-negotiable is rejected. /13/ Although certain reserved rights of
management are set out in section 7106 of the Statute, Agencys are not
relieved of the obligation to bargain concerning impact and
implementation of those changes. Even assuming a reserved right was
exercised herein, impact on employees in this matter can clearly be seen
through increased work loads, training, duration, and the like and
Respondent refused to negotiate regarding those impacts.
Respondent asserts in its brief that it appropriately informed and
dealt with the union concerning the assignment of Title XVI claims
representatives to complete the medical portion of the concurrent
claims, and that the union ended the negotiation process. I disagree.
While Respondent notified the exclusive representative that it intended
to change the duties of Title XVI claims representatives and reviewed
its proposals related to impact and implementation bargaining it did not
engage in good faith negotiations with regard to such impact and
implementation. The record clearly establishes that the District
Officer Manager Semel refused to pursue the Union's last two
counterproposals stating that he "was not bargaining, he had never
bargained, and he would never bargain." Semel's actions, therefore,
prevented the parties from further discussing any aspect of the change
after only two of the Union's counterproposals had been reviewed.
Furthermore, after not reaching agreement and refusing to engage in any
give and take bargaining concerning the counterproposals Semel
immediately telephoned the Indio office and instructed Velarde to
implement the changes. Case law is well settled that an Agency may not
alter terms and conditions of employment in the absence of agreement or
impasse following good faith bargaining. Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980);
U.S. Department of the Treasury, Internal Revenue Service, New Orleans
District, 8 A/SLMR No. 497, A/SLMR No 1043 (1978). In this case the
parties were engaged in what appeared to be good faith negotiations
concerning the change in assignment for Title XVI claims representatives
when Respondent decided that it had no obligation to bargain about
certain aspects of the assignments, but merely to consult or exchange
views. Respondent through its actions clearly refused to explore
through the bargaining process what impact there might be. Nor can
Respondent contend that the parties' were not bargaining, for the record
clearly reveals that bargaining had occurred at the monthly
union-management meetings. Concluding unilaterally that it had no
further obligation to negotiate and implementing changes that had never
been agreed upon or which on no impasse had been reached clearly
violates section 7116(a)(1) and (5) of the Statute. /14/
B. Formal Discussion of February 4, 1980
The General Counsel contends that the February 4, 1980 meeting
between Branch Manager Ramon Velarde and unit employees constituted a
formal discussion within the meaning of section 7114(a)(2)(A) of the
Statute, and that the Union was therefore entitled to advance notice and
an opportunity to be represented. Respondent, on the other hand,
contends that the meeting was merely to relay a decision to employees.
The key to whether a meeting is a formal discussion under section
7114(a)(2)(A) of the Statute is whether it concerns personnel policies,
practices and other general working conditions of employment. Cf.
Department of Health, Education and Welfare, Region IV, Atlanta, Georgia
and Department of Health and Human Services, Region IV, Atlanta,
Georgia, 5 FLRA No. 58 (1981). Without question general working
conditions of employment were discussed at this meeting. First,
employees were told that their work load would be increased a
substantial number of times through added duties. Secondly, both the
significant new work load and training were discussed between the
employees involved and Branch Manager Velarde. Where personnel
policies, practices and other general conditions of employment are
discussed the exclusive representative is entitled to be represented.
Failure to allow such presence constitutes a violation of section
7116(a)(1) and (8) of the Statute. Accordingly, it is found that the
February 4, 1980 meeting held to discuss general working conditions
without informing the exclusive representative and allowing an
opportunity for it to be present violated the Statute.
In view of the foregoing, it is recommended that the Authority adopt
the following Order:
ORDER
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute and Section 2423.29 of the Rules and
Regulations, it is hereby ordered that Office of Program Operations,
Field Operations, Social Security Administration, San Francisco Region,
shall:
1. Cease and desist from:
(a) Changing the job duties of the Title XVI claims
representatives or any unit employee in the Indio Branch Office
without first notifying the American Federation of Government
Employees, Council of Social Security District Office Locals,
AFL-CIO, or any other exclusive representative of such change and
affording it the opportunity to negotiate concerning the
implementation and impact of such changes on affected unit
employees.
(b) Conducting formal discussions between management and unit
employees, or their representatives, concerning personnel policies
and practices without notifying and affording the American
Federation of Government Employees, Council of Social Security
District Office Locals, AFL-CIO, or any other exclusive
representative, the opportunity to be represented at formal
discussions between management and employees concerning personnel
policies and practices and other general conditions of employment.
(c) In any like or related manner interfering with, restraining
or coercing its employees of their rights assured by the Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate only with the American
Federation of Government Employees, Council of Social Security
District Office Locals, AFL-CIO, or any other exclusive
representative of its employees, with regard to personnel policies
and practices, or other matters affecting the general working
conditions of employees at the Social Security Branch Office,
Indio, California.
(b) Notify the American Federation of Government Employees,
Council of Social Security District Office Locals, AFL-CIO or any
other exclusive representative, of and afford it the opportunity
to be represented at formal discussions between management and
unit employees, as their representative, concerning personnel
policies and practices, or other matters affecting general working
conditions of employees in the unit.
(c) Post at its Social Security Branch Office, Indio,
California facility, 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 the
Director, and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices to employees are
customarily posted. The Director shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(d) Notify the 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.
ELI NASH, JR.
Administrative Law Judge
Dated: May 19, 1981
Washington, D.C.
APPENDIX A
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 change work assignments of Title XVI claims
representatives without first notifying the American Federation of
Government Employees, Council of Social Security District Office Locals,
AFL-CIO, or any other exclusive representative and affording it the
opportunity to bargain concerning the implementation of such changes and
their impact on adversely affected employees.
WE WILL NOT conduct formal discussions between management and unit
employees, or their representatives, concerning personnel policies and
practices or other matters affecting general working conditions of
employees in the unit, without notifying and affording the American
Federation of Government Employees, Council of Social Security District
Office Locals, AFL-CIO, the exclusive representative of our employees,
the opportunity to be represented at such discussions.
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
Statute.
WE WILL, upon request, meet and negotiate in good faith only with the
American Federation of Government Employees, Council of Social Security
District Office Locals, AFL-CIO, with respect to personnel policies and
practices, or other matters affecting the general working conditions of
employees in the Social Security Branch Office, Indio, California.
(Agency or activity)
(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 of the Federal Labor Relations Authority, Region 8,
whose address is 350 South Figueroa Street, 10th Floor, Los Angeles, CA
90071, and whose telephone number is: 213-688-3805.
--------------- FOOTNOTES$ ---------------
/1/ At all times material herein the Charging Party has represented
certain employees on behalf of the American Federation of Government
Employees, AFL-CIO, in the Respondent's San Francisco Region, including
its Indio, California Branch Office.
/2/ Section 7106(a)(2)(B) provides:
Sec. 7106. Management rights
(a) Subject to subjection (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--
. . . .
(B) to assign work(.)
/3/ Section 7114(a)(2)(A) provides as follows:
Sec. 7114. Representation rights and duties
. . . .
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit of their
representatives concerning any grievance or any personnel policy
or practices or other general conditions of employment(.)
/4/ In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA No. 24 (1982), the Authority identified some of the factors to
be considered in determining whether a meeting with unit employees is in
fact "formal" in nature.
/5/ As the Order below fully remedies the violation found herein, the
Authority finds it unnecessary to decide whether such conduct also
violated section 7116(a)(5) of the Statute. Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 10 FLRA No. 36 (1982).
/6/ Cases Nos. 8-CA-342, 8-CA-343, and 8-CA-344, were severed from
the instant matter at the hearing.
/7/ Doyle's notes of the meeting show that Semel refused to bargain
over counterproposal three and four.
/8/ The difference in time required, occurs because Title XVI claims
require that the claimant disclose certain information concerning
income, resources, living arrangements, and number of people in the home
to establish entitlement under that program while Title II claimants are
required only to establish sufficient quarters of coverage which are
shown on the individual's Social Security earnings record.
/9/ Concurrent claims are normally filed for the protection of a
claimant, in the event he or she did not have sufficient quarters or
coverage to allow payment of Title II benefits.
/10/ Respondent only disagrees as to the nature of these meetings.
According to Semel the monthly consultation meetings involved "getting
together with the Union to discuss any changes that we may have in
working conditions, personnel policies and practices; in consulting
with one another, (sic) getting each other's view points before making a
decision as to what the change should be." Doyle maintains that the
purpose of the monthly meetings was to bargain.
/11/ A Palm Springs Supplemental Agreement exists but, has never been
executed or put into effect, and the parties have never operated under
it. That document is allegedly the subject of many pending grievances.
/12/ Article 1, Sections 6 and 7 of the Master Agreement provide as
follows:
6. Negotiation is a meeting between the parties wherein they
seek written agreement, and, in lieu thereof, seek third party
assistance to reach agreement.
7. Consultation is the process whereby the appropriate
official shall notify the Union of proposed changes in personnel
policies, practices and matters affecting working conditions
within that official's jurisdiction. The parties will fully
explore and consider each other's views before taking Decisive
action. Except in emergencies, short deadlines, or similar
situations the receiving party will be notified adequately in
advance of a change to prepare its views and suggest changes to
the party desiring a change. The Council may consult in person at
reasonable times, on request, with appropriate officials, on
personnel policy matters and at all times present its views in
writing.
/13/ American Federation of Government Employees, AFL-CIO, Local
2879, 2 FLRA No. 93 (1980) cited by Respondent is distinguishable on the
facts and involves a question of national negotiations on a
negotiability issue.
/14/ Respondent contends that the change in assignment was not a
change in conditions of employment. In my view, nothing can be more
clearly a change in employment or working conditions where additional
duties increase an employees work load some 20 percent.