[ v15 p922 ]
15:0922(174)CA
The decision of the Authority follows:
15 FLRA No. 174
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
CHICAGO REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-482
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. Thereafter, the
Charging Party 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 Recommended Order, as modified below.
The complaint alleges, in substance, that the Department of Health
and Human Services, Social Security Administration, Chicago Region
(Respondent), violated section 7116(a)(1) and (5) of the Statute by
unilaterally changing terms and conditions of employment and by refusing
to bargain concerning the impact and implementation of the change.
As noted by the Judge, prior to January 1979, a practice existed for
the Claims Representative who initiated and adjudicated a claim for
Supplemental Security Income Benefits to transpose the information from
the claims folder onto a computer input form. An 8080 document, the
computer generated printout of the input information, was transmitted
back to the initiating District or Branch Office for review by a Claims
Representative in order to verify if the information which had reached
the agency computer system agreed with the information in the claims
folder. The 8080 document could be reviewed by the same Claims
Representative who had initiated and adjudicated the claim. In December
1978, the Social Security Administration Central Office issued a Program
Manual System (POMS) instruction which changed the above system by
mandating that effective January 1, 1979, the review of an 8080 document
could only be done by a Claims Representative or an authorized employee
other than the person who authorized the initial claim input.
The new 8080 review procedures was finally implemented in
Respondent's Chicago Region on February 19, 1980. By letter dated March
5, 1980, the Union requested to bargain with the Respondent; the
Respondent refused such request on April 1, 1980, asserting, among other
things, that no change in the employees' working conditions had occurred
that was sufficient to require negotiation.
The Judge, in dismissing the complaint, found that the Respondent was
under no obligation to bargain over the substance of the change in
working conditions. In so finding, the Judge concluded first, without
exception by either party, that the substance of the change in the 8080
review procedure involved the exercise of a nonnegotiable management
right under section 7106(a) of the Statute because it related to the
agency's internal security practices. Next, in applying a "substantial
impact" test, the Judge concluded that the Respondent's December 1978
Program Manual instruction which separated the 8080 review from the
authorization function did not constitute a substantial change in
working conditions sufficient to require bargaining over the impact and
implementation of the change on bargaining unit employees. For purposes
of his decision, the Judge defined the term "substantial" as meaning
something more than trivial or de minimis.
Subsequent to the issuance of the Judge's Decision herein, the
Authority, in U.S. Government Printing Office, 13 FLRA No. 39 (1983),
stated that:
Where an agency, in exercising a management right under section
7106 of the Statute, changes conditions of employment of unit
employees, the statutory duty to negotiate comes into play if the
change results in an impact upon unit employees or such impact is
reasonably foreseeable. In such circumstances, where an agency
exercises a management right but has failed to provide adequate
prior notice thereof to the exclusive representative of its
employees or has rejected a timely request for negotiations
pursuant to section 7106(b)(2) and (3) of the Statute, the agency
will be found to have violated section 7116(a)(1) and (5) of the
Statute.
The Authority also noted that:
This is not to say that an agency is required to notify the
exclusive representative of its employees every time it decides to
exercise a management right under section 7106 of the Statute.
Thus, where the exercise of a management right has not changed
conditions of employment so as to have an impact on bargaining
unit employees and such impact cannot reasonably be foreseen,
management's failure to have provided prior notice thereof to the
exclusive representative will not be found to have violated
7116(a)(1) and (5) of the Statute. . . . Id. at note. 4
In other words, the Authority rejected the "substantial impact" test
/1/ which had been first enunciated under Executive Order 11491, as
amended. /2/ In so doing, however, the Authority also indicated and now
specifically reiterates that no duty to bargain arises from the exercise
of a management right that results in an impact or a reasonably
foreseeable impact on bargaining unit employees which is no more than de
minimis.
In the instant case, as previously stated, the Judge found that the
Respondent's December 1978 Program Manual System instruction which
merely separated the 8080 review from the authorization function by the
same person did not constitute a change in working conditions sufficient
to require bargaining and recommended dismissal of the complaint. The
Authority agrees. We find that the resultant as well as the reasonably
foreseeable impact of the change in working conditions on bargaining
unit employees was de minimis and therefore the Respondent had no
statutory obligation to provide the Union with prior notice of, and an
opportunity to bargain with respect to, the change. In this regard, the
Authority particularly notes, as found by the Judge, that the new
instruction had no effect on the grade qualification, work functions, or
other working conditions of the Claims Representatives. Further, as
found by the Judge, the General Counsel did not establish by record
evidence that the new instruction changed the way reviews were
distributed, fraud investigations were conducted, or errors were
reported to supervisors. As management's change pursuant to section
7106 of the Statute had only a de minimis impact on the working
conditions of bargaining unit employees, management was under no
obligation to bargain over the impact and implementation of such change.
Accordingly, the Authority shall order that the complaint be
dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-482 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Daniel H. Green
For the Respondent
Charles R. Prock, Esq.
For the General Counsel
John Harris, on brief
For the Charging Party
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of an unfair labor practice charged filed April 10, 1980, with the
Federal Labor Relations Authority. Consequently, on February 20, 1981,
the Regional Director of the Authority issued a complaint alleging that
the Department of Health and Human Services, Social Security
Administration, Chicago Region, violated 5 U.S.C. 7116(a)(1) and (5) by
unilaterally changing terms and conditions of employment. A hearing was
held on June 9, 1981 in Chicago, Illinois. All parties were afforded
full opportunity to examine witnesses and to introduce evidence. Post
hearing briefs were timely filed and have been considered. /3/ Upon the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings, conclusions and
recommendations:
Findings of Fact
Within the Social Security Administration, when an initial
determination has been made that an individual is eligible or ineligible
for Supplemental Security Income Benefits, a computer generated printout
of the information upon which the determination was made is transmitted
back to the District or Branch Office which initiated the claim. This
printout, the SSA-8080, is used to verify that the information in the
claims folder, which has been compiled by a Claims Representative, who
adjudicates the claim and transposes the information on a computer input
form, agrees with the information which has reached the agency's
computer system. Prior to December 1978, the "8080" could be reviewed
by the Claims Representative who had initiated and adjudicated the
claim. However, in December 1978, a Program Manual System (POMS)
instruction was issued from the Central Social Security Administration
Office requiring a change in the 8080 review procedure effective January
1, 1979. That change mandated that the review of an 8080 document could
only be done by a claims representative or authorized employee other
than the person who authorized the initial claims input. The procedure
was changed in order to deter fraud.
The new 8080 review procedure was not immediately implemented in
Respondent's Chicago Region in order to request clarification on the
POMS instruction. The region was concerned about potential grade impact
on the GS-10 claims representatives and it questioned whether there
wasn't sufficient security without the change. Those concerns were
apparently alleviated because the change was finally implemented in the
Chicago Region on February 19, 1980, a year later than implementation
throughout the rest of the Country. The Regional Commissioner's
memorandum implementing the change noted that the separation was made
for security reasons. It also stated:
We are aware that the procedure may cause workflow problems for
some offices. However, it is felt that the security gained by the
separation outweighs the temporary problems some offices may
experience implementing the procedure.
By letter dated March 5, 1980, the Union requested to bargain with
Respondent over the change. By letter dated April 1, 1980, Respondent
declined this request asserting that the matter was outside the scope of
bargaining because it concerned internal security and that no change in
working conditions of employees had occurred that was sufficient to
require consultation and negotiation.
Discussion and Conclusions
It is clear from the outset (and Counsel for the General Counsel does
not make any serious argument to the contrary) that the substance of the
change in the 8080 review procedure for reasons of the agency's internal
security practices is a non-negotiable management right under Section
7106(a) of the Statute. The only question remaining is whether there is
an obligation to bargain over the impact and implementation of that
change. That obligation, in turn, depends upon a showing that the
change has resulted in or may reasonably be expected to result in a
substantial impact on employees. /4/ The burden is the same whether the
issue arises under Section 7106(b)(2) or 7106(b)(3) of the Statute. /5/
Whether one focuses on the procedures for exercising a management
prerogative or on appropriate arrangements for adversely affected
employees, the broad reach of this remedial statute does not extend to
changes which are trivial or to changes whose impact on employees are
trivial. If collective bargaining is to be meaningful, the issues to be
bargained over must be real and not illusory; of some import and more
than de minimis; and hence, of some substance and, in that context,
substantial. /6/
Based on the facts of this case, I find that Respondent's December
1978 Program Manual System instruction which separated the 8080 review
from the authorization function did not constitute a substantial change
in working conditions sufficient to require bargaining over the
procedures which the Respondent would observe in exercising its
authority to issue that instruction.
Prior to December 1978, it was possible to separate the review
function from the authorization function. The only change in the POMS
instruction was that such a separation would become mandatory. The
record fails to demonstrate that making that separation mandatory had
any substantial impact on the working conditions at Respondent's
facilities.
Counsel for the General Counsel argues (1) that review of the 8080
was changed from one that was cursory to one that was adjudicative; (2)
that an adjudicative review takes significantly more work time; (3)
that the separation of review function has potential impact on grade
qualification; (4) that there are inconsistencies in the implementation
of the new 8080 instruction; (5) that an impact has been made on rights
of employees in fraud investigations; and (6) that employee relations
are adversely affected because one employee may have to report errors of
another to a supervisor.
Respondent has convincingly countered those allegations with record
evidence which is unrebutted. That record does not warrant a finding
that the nature of the 8080 review was changed from cursory to
adjudicative. /7/ Certainly the instruction itself makes no mention of
any change in the nature of the review to be performed. In fact, one
portion of the instruction which was not changed indicates that
adjudicative review has always been required. Section 11010 of the
instructions provides: "In reviewing the 8080 message, insure that the
claimant has been paid properly and the SSR is errorfree." And since an
adjudicative review has always been required, it is of no consequence
that a cursory review might take less time.
Grade qualification for the pertinent claims representative is
dependent upon the initial authorization function and not any review
function. Although the regional office initially had some question as
to whether there would be any affect on grade qualification, that
question was answered in the negative by the Central Office and there is
no evidence on this record that there would be any impact, actual or
potential, on grade determination. /8/ The work functions of a claims
representative have not changed as a result of the new instruction.
Prior to that instruction, claims representatives adjudicated claims and
they reviewed 8080 documents. After the instruction was issued, they
continued to adjudicate claims and to review 8080 documents, except that
the 8080's were not their own.
Counsel for the General Counsel's last three arguments all must be
rejected for similar reasons. The record does not demonstrate that
mandatory cross-review of 8080's changed the way reviews were
distributed, fraud investigations were conducted or errors were reported
to supervisors, when those cross-review were done permissively. The
record is also silent as to how much cross-review was done prior to the
change in instruction. In short, the evidence shows only that the
instruction was changed but not how the work has changed either
qualitatively or quantitatively.
Under the circumstances, I conclude that the evidence is insufficient
to demonstrate a violation of 5 U.S.C. 7116(a)(1) and (5) as alleged,
and, therefore, I recommend that the Federal Labor Relations Authority
issue the following order pursuant to 5 C.F.R. 2423.29(c):
ORDER
ORDERED, that the complaint in Case No. 5-CA-482 is dismissed.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: August 28, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ See also Internal Revenue Service (District, Region, National
Office Unit), 13 FLRA No. 61 (1983) at note 1.
/2/ See Department of Defense, Air National Guard, Texas Air National
Guard, Camp Mabry, Austin, Texas, 6 A/SLMR 591 (1976).
/3/ The Charging Party's Motion to Enter an Appearance for the
Purpose of Filing a Brief was unopposed and is hereby granted. Its
tendered brief has been accepted and considered.
/4/ See Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, 5 FLRA No. 45 (March 20,
1981); and See, also U.S. Government Printing Office, Opinion of Judge
Dowd, Case No. 3-CA-569, OALJ-81-083 (April 9, 1981).
/5/ Section 7106(b) provides:
Nothing in this section shall preclude any agency and any labor
organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
See, U.S. Government Printing Office, Id at pp. 19 and 20, where
Judge Dowd finds substantial impact a prerequisite under both
subsections.
/6/ On brief, the Charging Party expresses concern that by use of the
term "substantial," the burden of proof would extend to showing an
impact which is "considerable" and far beyond what is trivial. While I
can appreciate this concern, I do not believe that the term
"substantial" can be used in any context which relates to its use as a
synonym for the word "massive." Lest one engage in sophistic argument,
suffice it to say that, for purposes of this decision, the term
"substantial" means something more than trivial.
/7/ The testimony of the witness for the General Counsel on this
point is not convincing, nor is his estimate that cross-review takes
significantly longer. He stated that it used to take only 2 or 3
minutes to perform a review but that now, cross-review takes 5 times
longer. Not only does the record fail to explain why there should be
such a great disparity, but also this contention flies in the face of
evidence of a 1976 operations study which indicated that any review
should take only between 5 and 7 minutes. Even conceding that
unfamiliarity with a file might add a minute to the review time, this
would add only ten minutes per week based on his production of 10
reviews per week. Since the record does not demonstrate how many claims
representatives were not cross-reviewing at all prior to the new
instruction, it is impossible to determine the effect, if any, on
employees in general. The most I can find on this record is that one
employee's time might be affected by ten minutes per week.
/8/ I cannot give any weight to the testimony of Edward Hurt that one
claims representative in an office in Michigan was authorizing all
claims and that reviews were then done by other claims representatives.
First, that testimony was based solely on uncorroborated double hearsay,
and second, it just doesn't seem to make any sense. How does one person
generate sufficient work to keep the rest of the office busy reviewing
that work product?