[ v15 p614 ]
15:0614(132)CA
The decision of the Authority follows:
15 FLRA No. 132
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Charging Party
Case No. 3-CA-20154
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
filed exceptions 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, the Authority hereby adopts the
Judge's findings, conclusions and recommendation that the complaint be
dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20154 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
John J. Barrett, Esquire
Ronald Blavatt, Esquire
For the Respondent
Sharon Prost, Esquire
For the General Counsel
Ms. Elaine M. Minnick
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The Complaint alleges that on or about October 1, 1981, the
Respondent unilaterally discontinued the established past practice of
providing periodic physical examinations for bargaining unit employees
assigned to Respondent's Baltimore, Maryland Headquarters, and
represented by American Federation of Government Employees, Local 1923,
AFL-CIO (Charging Party or Union); and further that such conduct
involved unfair labor practices within the meaning of Sections
7116(a)(1) and (5) of the Statute.
During the course of the hearing counsel representing the General
Counsel stipulated that the allegations of the complaint related solely
to alleged discontinuance of periodic follow-up physical examinations
for employees with more than two years of service, and that it was not
contended that initial examinations provided for employees with more
than 18, or less than 24 months of service, were discontinued by the
Respondent (Tr. 100-102). Also, there was no issue concerning the
Respondent's willingness to negotiate with the Union concerning a new
program proposed by Respondent to replace the follow-up physical
examination program (General Counsel's Brief at pages 7-8).
The Respondent contended that the collective bargaining agreement
governing the relations of the parties at the time provided for
subsequent scheduling of follow-up physical examinations after the first
two years of service, "in accordance with good medical practice," and
further that current medical thinking provided a basis for a
determination that follow-up examinations were not in accord with "good
medical practice." Relying on this contention counsel argued that the
case essentially involved differing interpretations of the collective
bargaining agreement, and that these issues should have been resolved
through the grievance and arbitration procedure provided in the
agreement.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Post-hearing briefs were received
from counsel representing the General Counsel and counsel representing
the Respondent. Based upon the entire record herein, including my
observations of the witnesses and their demeanor, the exhibits and other
relevant evidence adduced at the hearing, /1/ and the briefs filed, I
make the following findings of fact, conclusions and recommendations.
Findings of Fact
The parties stipulated that Respondent's practice of providing
follow-up physical examinations after the first two years of employment
was discontinued on or about October 1, 1981 (Tr. 99-102). The record
disclosed that from September 15, 1977 through the year 1981, and a
portion of 1982, the parties were governed by a collective bargaining
agreement which provided for periodic physical examinations in specific
terms (G.C. Exh. 2, Article 13, Section C(2) at page 67). Article 13,
Section C(2) of the agreement reflects the following:
The Administration will make every effort to make comprehensive
physical examinations available to employees who wish to
participate in the program. Employees will be scheduled to
participate in the program after 18 months but before 24 months of
continuous Federal service. Subsequent physical examinations will
be scheduled in accordance with good medical practice. /2/
On August 30, 1979, the American Federation of Government Employees,
AFL-CIO, was certified as the exclusive representative for a
consolidated nationwide bargaining unit consisting of 211 previously
separate units within the Social Security Administration, including
bargaining unit employees represented by the Charging Party at Social
Security Administration Headquarters Bureaus and Offices of the
Baltimore Metropolitan Statistical Area. Negotiations leading to a
nationwide collective bargaining agreement commenced on June 10, 1980,
and concluded on December 21, 1981. A nationwide agreement was signed
in June of 1982. However, after consolidation, and before execution of
the nationwide agreement, the Respondent and the Charging Party were
governed by the local collective bargaining agreement which became
effective on September 15, 1977 (G.C. Exh. 2). /3/
Unlike the local agreement entered into by the Respondent and the
Charging Party in September of 1977, the nationwide collective
bargaining agreement does not provide for physical examinations, but
instead indicates that issues relating to health service needs would be
resolved by the parties through future cooperation. It provides:
Section 6 - Identification of Local Health Service Needs
The Administration and the Union recognize the need and agree
to cooperate in identification of local health service needs, such
as emergency treatment of illness or injury on the job, periodic
testing for early detection of chronic diseases or disorders,
immunization programs, periodic medical examination programs and
health education (G.C. Exh. 10). /4/
Early in 1980, Dr. David Fouts, a Medical Officer assigned to
Respondent's Division of Employee Health and Occupational Safety, began
to examine what he considered "the questionable utility and quality" of
the practice of providing physical examinations for bargaining unit
employees represented by the Charging Party, with a view toward
improvement in terms of detection and prevention of disease (Tr. 125).
The record disclosed that Dr. Fouts had extensive background and
experience in medical specialties relating to preventive medicine, and
employee occupational health and safety (Tr. 140-143). Dr. Fouts' study
continued into the early part of 1981 (Tr. 125). He reached the
conclusion that from a medical standpoint, it would be better to
discontinue periodic follow-up physical examinations being provided,
than it would be to continue offering them according to the practice
followed by the Respondent for a number of years (Tr. 151). He
recommended that Respondent focus on specific problems related to
exposure in the work place, or specific diseases posing special
problems; that a change in the program would make more sense from a
medical point of view; and also noted that numerous other institutions
or authorities had recently reached similar conclusions concerning
physical examinations of the type in question (Tr. 150-152). According
to his evaluation, periodic follow-up examinations of the type in issue
were a waste of time and money (Tr. 153).
Dr. Fouts' recommendations were based upon a statistical analysis of
medical records relating to bargaining unit employees examined under the
program in place at Respondent's headquarters offices, and were related
to his close involvement with the administration of physical
examinations provided for bargaining unit employees herein involved. He
also relied upon a study of medical literature in the John Hopkins
University Medical School Library (Tr. 145-146, 148-149, 152). /5/ He
concluded that medical literature also provided a basis for a
determination that routine periodic follow-up medical examinations
should be discontinued. James Smith, then Program Manager for the
Division of Occupational Health and Safety, reached an identical
conclusion based upon a study of medical literature and the statistical
study of medical records relating to bargaining unit employees (Tr.
134-135).
Based upon the evidence gathered and conclusions reached, Dr. Fouts
and Mr. Smith endeavored to persuade representatives of the Charging
Party, during a meeting in June of 1981, that follow-up examinations
should be discontinued and that the Union should accept a new program
based upon Respondent's perception of "good medical practice." Failing
in this Respondent sought to engage the Charging Party in negotiations
concerning the composition of the alternative program proposed (Tr.
37-38, 127-129, 137-138). The alternative program, entitled "New
Directions for SSA Health Program," was presented to the Charging Party
at the meeting (Tr. 90, 93, G.C. Exh. 11). It would have involved
specific examinations designed to detect and/or prevent cancer,
hypertension, glaucoma, allergies, diabetes; and other health related
measures.
The Union took the position that the periodic follow-up physical
examination program should not be changed (Tr. 38). Harold D. Roof,
President of the Charging Party expressed this position in a July 2,
1981 memorandum to the Respondent (G.C. Exh. 5). In the memorandum he
noted that the Charging Party refused to waive rights accorded the Union
under Article 13, Section C of the collective bargaining agreement then
in effect, and further that Article 13 was then being considered in
connection with negotiations designed to reach a nationwide agreement
based upon the consolidated bargaining unit established on August 30,
1979.
By memorandum dated August 31, 1981, the Respondent took steps to
cancel requisitions designed to procure examining physicians (G.C. Exh.
3). On September 1, 1981 representatives of the Respondent and Charging
Party met to discuss the issue. Again, the Respondent endeavored to
persuade the Charging Party to accede to discontinuance of periodic
follow-up examinations, and to adopt the alternatives proposed.
However, the Respondent was still not willing to negotiate the issue of
discontinuance of follow-up examinations. The Charging Party opposed
discontinuance and insisted that the issue would have to be negotiated.
By letter dated September 23, 1981, the Respondent advised the
Charging Party that "contemporary research and current medical opinion
hold that there is little value in performing repetitive routine
physical examinations" (G.C. Exh. 12). The letter indicated that
follow-up physical examinations for Respondents' headquarters employees
would not be made available because they were not deemed to be in accord
with good medical practice. The Charging Party responded by letter
dated October 5, 1981, insisting that the Respondent had no right to
discontinue the practice (G.C. Exh. 7). The letter also indicated that
discontinuance constituted a breach of the collective bargaining
agreement. It contained the following statement:
It is obvious that while the September 23, 1981 letter
indicates compliance with the General Agreement, the evidence in
our possession supports non-compliance with the General Agreement
and the Civil Service Reform Act. /6/
By letter dated November 17, 1981, addressed to the Charging Party,
the Commissioner of Social Security reiterated the Respondent's position
as follows:
We acknowledge the fact that follow-up examinations have been
conducted in the past. However, Article 13, Section C.2. of the
General Agreement states that 'Subsequent physical examinations
will be scheduled in accordance with good medical practice.'
Current medical thinking based on evidence gathered from various
medical studies is that routine physical examinations do little to
promote the health of those examined. Medical experts have also
found that the results of these examinations often yield little
information that the patient is not already aware of or would not
be discovered through some other medical protocol. Therefore, we
believe that our decision to discontinue repetitive or follow-up
examinations is in accordance with good medical practice as it
exists today and at the same time is consistent with the terms of
the General Agreement. We will, of course, continue to offer
physical examinations to headquarters employees after 18 months
and before 24 months of continuous Federal service (G.C. Exh. 8).
Discussion and Conclusions
It is well settled that alleged unfair labor practices which
essentially involve differing and arguable interpretations of a
negotiated agreement, as distinguished from alleged actions which
constitute clear and patent breaches of a negotiated agreement, are not
deemed to be violative of the Statute. In such cases the aggrieved
party's remedy lies within the grievance and arbitration procedures in
the negotiated agreement rather than through unfair labor practice
procedures. Iowa National Guard and National Guard Bureau, 8 FLRA No.
101 (1982), 8 FLRA 500; Division of Military and Naval Affairs, State
of New York, Albany, New York, 8 FLRA No. 71 (1982), 8 FLRA 307; U.S.
Patent and Trademark Office, 3 FLRA No. 123 (1980), 3 FLRA 824;
Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3
FLRA No. 82 (1980), 3 FLRA 512; Department of the Navy, Naval Weapons
Station, Concord, California, 1 FLRA No. 13 (1979), 1 FLRA 133.
The gravamen of the charge and the complaint lies in the contention
that the Respondent breached Article 13, Section C(2) of the collective
bargaining agreement. In fact, counsel representing the General Counsel
places heavy reliance upon an interpretation of this contractual
provision, and argues that the conduct herein was "flagrantly,
inconsistent with and in breach of the clear contract language" (Tr.
201). /7/
It is not possible to reach the conclusion argued by counsel
representing the General Counsel without rendering an interpretation of
the collective bargaining agreement governing the labor relations of the
parties. Moreover, the record does not reflect that Respondent's
conduct constituted a clear and patent breach of Article 13, Section
C(2). It is at least arguable that the language utilized imposed a
condition upon the continuation of the program, that is, the condition
that such follow-up examinations be scheduled only so long as making
them available accorded with "good medical practice." Put another way,
the language of the contract might be construed as evidence that the
parties envisioned reliance upon the existence of a "good medical
practice" basis for continuation of the follow-up physical examination
program. Without making any finding here as to what constitutes "good
medical practice," it is noted that the record reflects that the
Respondent relied upon what was deemed to be "good medical practice," as
a basis for proposed changes and discontinuance; and further that there
was a clear difference of position as to whether the proposed changes
and discontinuance were justified from a medical standpoint.
As noted, if the Respondent was breaching the agreement it is not at
all clear that the breach was clear and patent. Moreover, even assuming
the existence of a breach, it cannot be concluded under the
circumstances presented that Respondent's decision to insist upon a
modification of the program to conform to Respondent's perception of
"good medical practice," constituted a rejection of the collective
bargaining agreement in violation of the Sections 7116(a)(1) and (5).
It is necessary that such a finding be made in order to base an unfair
labor practice on the breach. U.S. Customs Service, Region VII, Los
Angeles, California, 10 FLRA No. 47 (1982), 10 FLRA 251; Kaiserlautern
American High School, Department of Defense Dependents Schools, Germany
North Region, 9 FLRA 28 (1982), 9 FLRA 184. In the context of a
grievance and subsequent arbitration proceeding, Respondent's position
might have been interpreted as one upholding the intent of the parties
to the collective bargaining agreement. Similarly, this case may be
distinguished from those wherein a unilateral suspension of the entire
collective bargaining agreement was found to have violated sections
7116(a)(1) and (5). Veterans Administration Hospital, Danville,
Illinois, 4 FLRA No. 59 (1980); Great Lakes Program Service Center,
Social Security Administration, Department of Health and Human Services,
Chicago, Illinois, 9 FLRA No. 58 (1982), 9 FLRA 499.
The record in this case justifies a finding that this case does not
involve a simple discontinuance of the follow-up physical examination
program, but rather an unsuccessful effort on Respondent's part to make
that program more nearly conform to what Respondent deemed to be "good
medical practice." The Respondent's rejection of the follow-up
examination program, and the Union resistance to the change proposed may
or may not have been justified. This issue should have been resolved
under the grievance and arbitration procedures in the collective
bargaining agreement governing the parties.
Although it is true that the Respondent did provide follow-up
physical examinations for a number of years, the examinations made
available were provided under the provisions of collective bargaining
agreements. It should be noted this is not a case involving issues of
whether or not a past practice developed into a term and condition of
employment. This contention completely overlooks the existence of the
underlying contractual dispute. Accordingly, legal principles governing
cases relating to whether a past practice has ripened into a term and
condition of employment, and cases relating to the duty to bargain at
the exclusive level of recognition following a consolidation of units,
are inapplicable.
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2423.29(c).
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 3-CA-20154, be,
and it hereby is, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: January 21, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Under the authority provided in Section 2423.19(r) of the
Regulations, 5 C.F.R. 2423.19(r), the following corrections are made in
the hearing transcript:
Page Line Change To
166 16 "locate" "negotiate"
168 6 "22" "11"
181 2 "tighten up" "tie this up to"
201 6 "3" "C"
210 7 "fact" "face"
/2/ Prior collective bargaining agreements governing the parties
going back to at least August 31, 1972 contained nearly identical
language (Tr. 52-53). As noted, a stipulation entered into the record
reflects that no issue is raised concerning initial physical
examinations provided to bargaining unit employees during the six-month
period preceding completion of two years of continuous service.
/3/ See Section 2422.2(h)(8), 5 C.F.R. 2422.2(h)(8). The record also
reflects that the parties agreed to be so governed (General Counsel's
Brief at page 2, and Tr. 81, 83-84).
The complaint also alleges that the unilateral termination of the
practice of providing periodic physical examinations occurred while the
issue relating to such examinations was subject to negotiations at the
agency level, the level of exclusive recognition; and further that the
Respondent refused to elevate this issue to the level of exclusive
recognition for negotiations. However, there is no indication in the
record that the Respondent refused to negotiate on any issue at the
level of exclusive recognition. Although not significant for the
purpose of resolving issues posed in this case, it is noted that counsel
representing the General Counsel argues that the Respondent refused to
raise the issue to the agency level for bargaining purposes, while at
the same time contending that the issue was made the subject of
bargaining at the agency level.
/4/ This provision suggests that both parties recognized that a
change had in fact occurred with respect to Respondent's making
provision for periodic follow-up physical examinations, as they are not
specifically provided for in the agreement.
/5/ Dr. Fouts did acknowledge the existence of contrary medical
opinions on cross-examination by counsel representing the General
Counsel (Tr. 153). Other cross-examination reflects an attempt to probe
into Respondent's reliance upon the concept of "good medical practice"
as a basis for the change (Tr. 133, 135-137). However, the brief filed
on behalf of the General Counsel acknowledges that "the utility of
periodic examinations may have been the subject of some good faith doubt
in the minds of several individuals at SSA. . . . " (General Counsel's
Brief at 16).
/6/ Mr. Roof's letter clearly indicates that Respondent's conduct was
seen as a breach of the collective bargaining agreement. Mr. Roof's
testimony also suggests that the Respondent's action was perceived as a
breach of the collective bargaining agreement (Tr. 83).
/7/ Heavy reliance is placed on the lengthy period of time during
which follow-up examinations were provided, and on the first sentence of
Article 13, Section C(2), which states that, "The Administration will
make every effort to make comprehensive physical examinations available
to employees who wish to participate in the program." It is argued that
no special significance should be accorded the final sentence of Article
13, Section C(2) which provides that, "(s)ubsequent physical
examinations (after the initial examination) . . . be scheduled in
accordance with good medical practice." Thus, in order to resolve this
case it would be necessary to determine the relative weight to be
accorded the first sentence in the paragraph, and the meaning to be
attributed to the final sentence. Counsel representing the General
Counsel argues that "good medical practice" might justify the scheduling
of follow-up examinations more frequently; but that the nature of such
examinations is frozen by the terms of the collective bargaining
agreement and the practice of the parties. Counsel does not accept the
possibility that the nature and makeup of follow-up examinations might
be subject to change based upon "good medical practice," or that they
might be discontinued altogether for medical reasons generated over a
period of years as a result of changes in medical thinking (General
Counsel's Brief at 15).