16:0056(17)CA - SSA and AFGE -- 1984 FLRAdec CA
[ v16 p56 ]
16:0056(17)CA
The decision of the Authority follows:
16 FLRA No. 17 SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 31-CA-534 DECISION AND ORDER The Administrative Law Judge issued the attached Decision finding that Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. The Respondent filed exceptions with respect to the Judge's Decision /1/ and the Charging Party filed an opposition to Respondent's exceptions. 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, except as modified herein. In agreement with the Judge's conclusion, the Authority finds that the Respondent violated section 7116(a)(1) and (5) of the Statute by its failure to give the Union adequate prior notice and the opportunity to request bargaining concerning the impact and implementation of the Respondent's decision to implement Phase II of the Disability Insurance Pilot Study on September 26, 1980, as well as its decision to resume the Retirement Survivor Insurance sample work on October 8, 1980. In so finding, the Authority notes that where an agency in exercising a management right under 7106 of the Statute decides to change a condition of employment of unit employees, there exists a statutory duty to negotiate if such change results in more than a de minimis impact upon unit employees or such impact is reasonably foreseeable. See U.S. Government Printing Office, 13 FLRA No. 39 (1983); and Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984). /2/ ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Social Security Administration shall: 1. Cease and desist from: (a) Instituting changes in the use by employees of its on-going samples, pilot programs and special studies in the Office of Assessment, including the field regional offices, without first notifying the American Federation of Government Employees, AFL-CIO, the exclusive bargaining representative of its employees, and affording the Union the opportunity to request negotiations concerning the impact and implementation of such changes. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Upon request by the American Federation of Government Employees, AFL-CIO negotiate concerning the procedures to be utilized in implementing any changes in the use by employees of its on-going samples, pilot programs and special studies, and their impact upon affected employees. (b) Post at all its Office of Assessment locations, including the satellite and field offices, 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 Associate Commissioner, Office of Assessment, or his designee, and shall be posted and maintained for a period of 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 insure that such Notices are not altered, defaced, or covered by any material. (c) Notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with the Order. IT IS FURTHER ORDERED that the allegation of the complaint that the Respondent violated section 7116(a)(1) and (5) of the Statute by conducting training sessions for unit employees be, and it hereby is, dismissed. Issued, Washington, D.C., September 26, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, 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, institute changes in the use by employees of our on-going samples, pilot programs and special studies in the Office of Assessment, including the field regional offices, without first notifying the American Federation of Government Employees, AFL-CIO, the exclusive bargaining representative of our employees, and affording the Union the opportunity to request negotiations concerning the impact and implementation of such changes. 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 Employees, AFL-CIO of any changes in the use by employees of our on-going samples, pilot programs and special studies and, upon request, negotiate with such representative concerning the impact and implementation of such changes. (Agency or Activity) Dated: By: (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 its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority whose address is: P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8507. -------------------- ALJ$ DECISION FOLLOWS -------------------- SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No.: 31-CA-534 Francis X. Dippel, Esq. Jack P. Goodman For the Respondent Gloria J. Crawford, Esq. Margaret Berkowitz, Esq. For the General Counsel Barry Nelson For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement Of The Case Pursuant to a Complaint and Notice of Hearing issued on February 20, 1981 by the Regional Director for the Federal Labor Relations Authority, Washington, D.C. Region, a hearing was held before the undersigned on March 19, 1981 at Baltimore, Maryland. This is a proceeding under the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (herein the Act). On October 31, 1980 a charge was filed by American Federation of Government Employees, AFL-CIO (herein called the Union or Charging Party) against Social Security Administration (herein called Respondent). Based upon the aforesaid charge it was alleged in the complaint that certain conduct by Respondent, in addition to constituting a patent breach of a negotiated agreement between the parties, was unilateral in nature; that, as a result thereof, the Union was denied an opportunity to negotiate on its impact and implementation-- all in violation of Sections 7116(a)(1) and (5) of the Act. Specifically, the complaint alleged that (a) on about August 25, 1980 and September 16, 1980, respectively, Respondent conducted, without prior notice to the Union, training for unit employees regarding changes in certain forms to be used in the resumption of the Retirement Survivor Insurance sample of Title II, and in the implementation of Phase II of the Disability Insurance sample; (b) by memorandum dated September 26, 1980 Respondent directed the implementation of Phase II of the Disability Insurance Pilot study of Title II, work, without prior notice to the Union, and by implementing such study it changed certain forms used by unit employees in their work; (c) by memorandum dated October 8, 1980 Respondent directed the resumption of Title II sample work concerning Retirement Survivor Insurance without prior notice to the Union, and by resuming such study it changed certain forms used by unit employees in their work. Respondent filed an answer, dated March 1, 1981, in which it admitted that it unilaterally conducted the aforesaid training sessions, directed implementation of Phase II of the Disability Insurance Pilot Study of Title II work, and directed resumption of Title II sample work concerning Retirement Survivors Insurance. It denied changing the forms as a result of any such implementation or resumption. Moreover, 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 as well as cross-examine witnesses. Briefs filed by the parties have been duly considered. At the hearing herein the undersigned stated that since the complaint alleged, in paragraphs 15 and 17, that certain forms were changed by implementing Phase II of the Disability Insurance Pilot Study and the resumption of Retirement Survivors Insurance work, no findings would be made regarding other changes during such implementation or resumption. Upon further consideration I am persuaded that the complaint is sufficiently broad to encompass such other changes. The alleged implementation and resumption of work carry with them new procedures, and the Respondent-- as appears from the exhibits-- acknowledges that changes accompanied the system. /3/ Further, the modifications were litigated at the hearing and no prejudice is shown to have existed thereby. See Iron Workers, Local 444 Gust K. Newberg Construction Co. 174 NLRB No. 164; VA Hospital, Charleston, S.C. A/SLMR No. 87. Subsequent to the hearing General Counsel filed a motion with the undersigned to reopen the record and receive "Appendix A to G.C. Exh. No. 1(e) into evidence." Appendix A is referred to as Attachment 1 in paragraph 5 of the Complaint. It consists of a list of the bargaining units, nationwide and in Washington, D.C. as well as the various states, of the non-professional employees of Respondent represented by the Union. No objection has been filed thereto. The motion is granted and the Appendix is received in evidence. Upon the entire record herein, from my observation of the witness and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings, conclusions and recommendations: Findings of Fact 1. At all times since August 30, 1979 the American Federation of Government Employees, AFL-CIO has been the certified bargaining representative of the Respondent's employees in a national consolidated unit. 2. A memorandum of agreement signed by Respondent on November 1, 1979, and by the Union on November 2, 1979, provided, in substance, that prior to implementing any changes in personnel policies, practices, or conditions of employment, the employer will notify the Union in advance thereof and fulfill its obligation to bargain. 3. About 1500 individuals are employed by Respondent in ten field assessment (regional) offices and 25 satellite offices in the United States-- all under the Office of Assessment. Employed thereat are qualify review specialists (QRS), disability reviewers (DR), field integrity specialists, program analysts and clericals. 4. The mission of the Office of Assessment is to conduct a program of quality appraisal and analysis through on going samples, /4/ pilot programs and special studies. By conducting samples of claims which were paid, the employer monitors the accuracy of its payments while the studies aid in correcting discrepancies. Title II of this program includes Retirement Survivors Insurance (RSI) and Disability Insurance (DI). Sample work for both RSI and DI is handled by those designated as QRS, DR, and the analysts heretofore mentioned. The Office of Assessment (OA) conducts samples every six months of about 3000 cases for DI and about 2000-3000 for RSI. 5. In September, 1979 OA ended Title II sample work concerning Phase I of a DI pilot study. Further, in February, 1980 it suspended Title II sample work related to RSI cases. 6. Earl P. Tucker, President of the National Council of Field Assessment Locals, sent a memorandum dated May 16, 1980 to Fred Schutzman, Associate Commissioner, OA. The Union representative stated they were unofficially advised that Title II sample for OA was suspended; that the Union desired to negotiate the impact of the changes flowing from the suspension on the employees in OA. 7. In a reply memorandum dated June 13, 1980, Schutzman informed Tucker that the sample had been suspended for an indefinite period pending approval by the Office of Management and Budget for an extension of several forms used in Title II quality review work. Authorization for use of said forms had expired in January, 1980. The OA official stated that when word is received regarding resumption of the sample, the employer would notify the Union. Schutzman further commented that no widespread assignment had taken place of employees to duties outside position descriptions; that no adverse impact had resulted from the suspension to warrant negotiations thereon. 8. A further memorandum regarding suspension of Title II sample, dated September 3, 1980, was sent by Schutzman to the Union President. He reiterated the contention that no adverse impact had occurred; that it was anticipated the resumption of Title II sample would take place soon; that the Union would be notified when official word is received regarding the resumption; and that OA had authorized Title II training to commence on August 25, 1980. 9. Management did begin a refresher training session on August 25, 1980 in Baltimore, Maryland. About twenty employees, including bargaining unit workers, attended the course which concerned changes in forms to be used in the resumption of RSI work. Discussion took place regarding two new forms: (1) SSA 4659 which was an annual earnings test questionnaire used by the QRS in the field when soliciting information from beneficiaries. Record testimony reflects that the use of this form added one-half to one hour's time required by the specialist to conduct an interview. It also increased the average time about one to two weeks to process a case through completion. The QRS was required to obtain data regarding the beneficiary's past employment by sending out a sheet to his former employers during the previous four years; (2) SSA 4280 which was an annual earnings test desk review worksheet to be used by case analysts. /5/ The aforesaid training also covered updates and revisions to the Quality Review Manual used in processing cases. This manual contains instructions to field personnel regarding completion of forms. These may be modified at times, and some instructions may be clarified when necessary. 10. On September 16, 1980 Respondent commenced training unit employees regarding the implementation of Phase II of a DI Pilot Study without notification to the Union. At least six training sessions have been held in Baltimore during the past four years. The program lasted one week, and it was attended by DR's, project managers. It was designed to train the trainers, and to update knowledge for modifications made in the DI process. The sessions dealt with, inter alia, changes in forms filled out by reviewers. Some items had been rearranged. Some questions on the forms were new ones whereas other queries were merely modifications. The reviewer also was required to fill out a new form. However, all pertained to the same task of interviewing individuals to determine disability entitlement. The DR's were expected, upon their return to the regional offices, to train other DR's and QR's. The aforesaid sessions also dealt with consultative examinations as well as the need for more vocational documentation. In respect to the former, this calls for a request to state agencies to obtain an independent doctor to examine the beneficiary. The DR contacts the doctor and the beneficiary regarding an appointment. Under Phase I such examinations were limited since the DR procured the treating sources first, and only arranged for a consultative exam if necessary. Record facts show the vocational evidence required by management was specified in more detail, although the DR gathered such information under Phase I. 11. By a memo dated September 26, 1980, addressed to all Field Assessment Officers, the Respondent ordered the implementation of Phase II of the DI Pilot Study. No prior notice was given the Union herein. A new quality review questionnaire used by the QRS includes an item referring to Workmen's Compensation, which was not contained in the prior form, and the QRS had to obtain data in that regard. This increased the time required to process DI cases from a few hours to several weeks since the specialist had to contact insurance companies to verify the payments made as well as determine how that affected payment. Further, form SSA 5081 used by the QRS to gather data from beneficiaries was replaced by form SSA 5081-02. While both were entitled "Request for Current Medical/Vocational Evidence", the replacing form spelled out specific vocational data to be obtained. 12. In implementing the Pilot Study, as aforesaid, the DR's were required to follow through-- as discussed during the training sessions-- consultation examinations in each case and to procure medical evidence. This was not necessary in Phase I of this study. Further, in Phase II the reviewer was now required to establish date of birth of the beneficiary by the best available evidence. This might call for obtaining a foreign document, or baptismal certificate, by contacting the Division of International Operations which then notified the particular embassy. This new procedure was set forth in the Quality Review Manual. /6/ Processing non-foreign documents might add one to three weeks to process a case; securing foreign data could increase case processing time four weeks or longer. Another procedural change involved the manner by which information was furnished the QRS. Under Phase I the reviewer was given a cover sheet with the assigned cases showing the beneficiary's disability. While the sheet was still provided under Phase II, the information was not set forth in many cases. Some employees were concerned regarding their safety since they were not familiar now with the condition of the beneficiary. 13. A memo dated September 19, 1980 from Peter M. Wheeler, Director of Payment and Eligibility Quality, to Schutzman, regarding the implementation of the DI Quality Review System, sets forth the objectives of, and key changes wrought by, Phase II of the Pilot Study. As indicated therein, it is a separate and distinct study, independent of Phase I in respect to the sample, review criteria and procedures, and uses to which data will be part. The changes in Phase II, resulting from Phase I are enumerated as follows: a) Elimination of independent reviews by physicians and DR's. b) Purchase of CE (Consultative Examinations) in nearly all cases. c) Direct purchase of CE's in more states. d) Consolidated worksheet for desk reviewer. e) Simultaneous request for CMER (current medical evidence of record) and CE. /7/ 14. In a memorandum dated October 8, 1980 management advised all field assessment officers that clearance had been received for commencement of RSI sample. The resumption of RSI sample work, which was now begun, required the case of the new forms (SSA 4280 and SSA 4659) devoted to "annual earnings test" for the review worksheet and quality review questionnaire respectively. The resumption of RSI sample work, including the use of the new forms, was effected without prior notice to the Union. The additional time required to conduct an interview and to process a case completely, as well as the added duties imposed by the annual earnings test upon the QRS, are set forth in paragraph 9 above. 15. QRS Madeline M. Barborer testified, and I find, that she was assigned to handle 12-16 cases each month prior to the resumption of RSI sample work and the implementation of Phase II of DI work; that thereafter she was assigned about 26 cases per month. /8/ Conclusions The principal issues for determination herein are as follows: (1) Whether Respondent, by implementing Phase II of the DI Pilot Study on September 26, 1980 as well as resuming its RSI sample work on October 8, 1980 unilaterally effected changes in working conditions of unit employees; (2) if such changes resulted from the implementation and resumption, were they of sufficient significance so that Respondent's failure to negotiate their impact and implementation was violative of Sections 7116(a)(1) and (5) of the Act. /9/ Respondent maintains that the changes made, expressly as to the forms, did not constitute changes in personnel policies, practices, or working conditions. Any modifications, it is urged, fell within the scope of the employees' required duties. Further, it is asserted that no adverse impact resulted from the changes; that the alterations in the forms constituted "technology, methods and means of performing work", as set forth in Section 7106(b)(1) of the Act, and were management rights. It is insisted that no obligation existed on the part of Respondent to bargain regarding the "insignificant" changes adopted by the employer. (1) It is now axiomatic that, while management may not be required to negotiate over the decision to adopt certain methods of operation, it does have certain obligations in that regard. Thus, before it effects changes in working conditions of unit employees, the employer must notify the bargaining representative and negotiate the implementation of its decision and its impact upon such employees. Internal Revenue Service, Washington, D.C., 4 FLRA No. 68; 78th Division (Training), Kilmer USAR Center, Edison, NJ., 1 FLRA No. 97; Federal Railroad Administration, 4 A/SLMR No. 497, A/SLMR No. 418. The rule, however, is qualified to the extent that such changes as are wrought must have a sufficient impact upon the work involved to warrant mandatory bargaining thereon. See Office of Programs Operations, Field Operations, SSA, San Francisco Region, 5 FLRA No. 45. In respect to the requirements imposed upon the reviewers by the new forms issued by Respondent, it seems clear that they involved additional or enlarged tasks by the employees. Under Phase II of the DI Pilot Study the DI was obliged to arrange, or initiate, the consultative examination of the beneficiary and to obtain medical evidence. While this was part and parcel of the new form, nevertheless it necessitated additional tasks by the reviewer. Similarly, the latter was required, under Phase II, to establish date of birth by procuring a certificate or foreign document through the Division of International Operations in certain instances. Other changes resulted from the new questionnaire which required the QRS to obtain data regarding workmen's compensation paid to the beneficiary. Moreover, under Phase I the reviewer was given a cover sheet with each assigned case showing each beneficiary's disability. Under the new procedure such information was not provided in every case. Likewise, the resumption of RSI sample work entailed the use of new forms which directed the QRS and the case analysts to obtain additional data. As a result of the newly adopted item regarding annual earnings test the reviewer was required to gather information of all past employers during the past four years. No such information had been sought, or demanded, prior to the resumption of the RSI program. While Respondent argues that these tasks, as heretofore described, fell within the established job duties of the employees, record facts show the reviewers did not perform them previously. It may well be true that the general responsibility of the OA people was to conduct ongoing sample, surveys and studies to verify eligibility and payment accuracy. Nevertheless, the modifications in the forms, as implemented by management, did require the QRS or case analyst to perform new duties in respect thereto. See Department of Treasury, IRS, Manhattan District, A/SLMR No. 841. Apart from the question of impact, these duties called for the employee to obtain new information, contact other agencies or offices, and gather data, i.e. the annual earnings test information, which had never been required previously. That changes from Phase I resulted by the implementation of Phase II is acknowledged in the memo of September 19, 1980 from Wheeler to Schutzman. The memo describes these changes as key changes. /10/ Thus I find and conclude that Respondent did effect changes in working conditions by reason of implementing Phase II of the Pilot Study and its resumption of RSI sample work. (2) Respondent insists that the changes, if any, were minor in nature; that they did not impact upon the reviewer's job duties significantly, and therefore management should not be faulted for its unilateral implementation thereof. In examining the new tasks imposed upon the employees, it becomes apparent that this contention must fall. The reviewers were now required to obtain information, and contact outside sources for same, all of which involved considerably more time in processing a case. Thus, in respect to Phase II of the Pilot Study, record testimony reflects that securing foreign data added four weeks or longer to the processing of a case; that the time required to obtain Workmen's Compensation data amounted to several hours, at least, and could take several weeks; and that obtaining information regarding the annual earnings test by the QRS increased the average time to complete a case by about one-two weeks. The record also reflects that deadlines are set for the processing of cases by the reviewers; that the delays occasioned by the additional time required to handle a case, in view of the new data to be obtained, affected the statistics on the "deadline to hand in the work." As testified to by QRS Barbour, the employees' were concerned about their ratings as a result thereof. Further, this witness testified that, prior to implementation of Phase II of DI and the resumption of RSI sample, she was assigned 12-16 cases, whereas after its resumption her case load expanded to 26 cases per period - 4 to 6 weeks. While management officials herein denied any adverse impact resulting from the new forms, or the changes imposed as a result thereof, it failed to establish specifics which support such denial. Contrariwise, the witnesses for the General Counsel adverted to more particulars in this respect. Moreover, I am persuaded that the added time taken to process a case does have a sufficient impact upon the employees and their working conditions. This becomes apparent when it is seen that the time taken by individuals to process a case influences their ratings by management. It has been held in the public sector that the establishment of "performance standards" for unit employees imposes certain obligations upon the agency. While the latter has no duty to bargain regarding the decision pertaining to their establishment, it is obliged to bargain regarding their implementation and the impact on said employees. See 78th Division (Training), Kilmer USAR Center, Edison, N.J. supra. In the case at bar the employees were required to meet certain deadlines to hand in their casework. These deadlines were not changed as a result of the added information to be obtained. Moreover, the increased caseload of the quality review specialist, by reason of the implementation of Phase II of DI and resumption of RSI sample, must necessarily impact upon the employees. This was adverted to by General Counsel's witness. Thus, on the basis of the foregoing, I am satisfied that the work entailed by reason of the new forms sufficiently impacted upon the reviewers. They were not, as urged by Respondent, minor in nature since the ratings of these employees were dependent upon their timely output. Hence, it cannot be gainsaid that these additional duties-- which necessarily extended the time required to process a case-- affected the rating of the individual reviewer. See Social Security Administration, Bureau of Hearings and Appeals, A/SLMR No. 1176. On the basis of the foregoing, I find that Respondent instituted significant changes in the job duties of the unit employees; that they had a substantial impact upon the reviewers' working condition; and that their unilateral institution was violative of the Act. In regard to the latter, I conclude that Respondent should have bargained with the Union in respect to their implementation and impact upon adversely affected employees. Its failure to do constitutes a violation of Section 7116(a)(1) and (5) of the Act. /11/ Having concluded that Respondent violated Section 7116(a)(1) and (5) of the Act, it is recommended the Federal Labor Relations Authority issue the following order: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Social Security Administration shall: 1. Cease and desist from: (a) Instituting changes in the use by its employees of its on-going samples, pilot programs and special studies in the Office of Assessment, including the field regional offices, without first notifying the American Federation of Government Employees, AFL-CIO, the exclusive bargaining representative of its employees, and affording it the opportunity to bargain, to the extent consonant with law and regulation, concerning the implementation of such changes and their impact on adversely affected employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request by American Federation of Government Employees, AFL-CIO, meet or negotiate, to the extent consonant with law and regulations, concerning the procedures to be utilized in implementing any changes in the use by its employees of its on-going samples, pilot programs and special studies, and their impact upon adversely affected employees. (b) Post at all its Office of Assessment locations, including the satellite and field offices, copies of the attached notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms they shall be signed by the Associate Commissioner, Office of Assessment, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. The Associate Commissioner shall take reasonable steps to insure that notices are not altered, defaced, or covered by any material. (c) Pursuant to Section 2423.20 of the Rules and Regulations notify the Regional Director of Region 3, 1133 15th Street, N.W. Washington, D.C. in writing, within 30 days from the date of this order as to what steps have been taken to comply herewith. WILLIAM NAIMARK Administrative Law Judge Dated: August 24, 1981 Washington, D.C. APPENDIX 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 institute changes in the use by our employees of our on-going sample, pilot programs and special studies in the Office of Assessment, including the field regional offices, without first notifying the American Federation of Government Employees, AFL-CIO, the exclusive bargaining representative of its employees, and affording it the opportunity to bargain, to the extent consonant with law and regulation, concerning the implementation of such changes and their impact on adversely affected employees. 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, upon request, meet and negotiate, to the extent consonant with law and regulations, concerning the American Federation of Government Employees, AFL-CIO, concerning the procedures to be utilized in implementing any changes in the use by our employees of its on-going samples, pilot programs and special studies, and their impact upon adversely affected employees. (Agency or Activity) Dated: By: (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 any employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region 3, Federal Labor Relations Authority, whose address is: 1133 15th Street, N.W., Washington, D.C., and whose telephone number is: 202-653-8452. --------------- FOOTNOTES$ --------------- /1/ With regard to the Respondent's contention that the Judge considered matters not covered by the complaint, the Authority notes that such matters were fully litigated by all parties at the hearing. Accordingly, the Respondent's contention that it was denied the opportunity to present a proper defense in this regard is rejected. /2/ Thus, the Authority rejects the Judge's use of a "substantial impact" test as set forth on page 9 and thereafter in his Decision. /3/ See Joint Exhibit 6. /4/ "Sample" refers to a random selection of cases in which data is gathered and analyzed for evaluation. /5/ Both the SSA 4659 and SSA 4280 had not been used previously, and they became effective in September, 1980. /6/ Record facts disclose that manual changes were customarily made; that it was usual to get new instructions and new forms on how to conduct interviews. /7/ A decision based on CMER alone might result differently when combined with a CE. /8/ Cases did not "come in" on a regular basis. New cases were received every 4-6 weeks. /9/ General Counsel avers that Respondent unilaterally, and without prior notice to the Union, conducted training sessions of employees regarding the contemplated implementation of Phase II of the DI Study and the resumption of RSI sample case work. It alleges such conduct to be violative of these particular sections of the Statute. Both training seminars were held prior to the implementation of any changes in conditions of employment. They were preparatory instructions regarding the expected programs. At this point, in my opinion, such anticipated changes were inchoate in nature. Thus, I do not agree that the training sessions were tantamount to effecting changes which might be violative of the Act. Moreover, no allegation appears in the complaint that, by conducting them, Respondent engaged in formal discussions with employees and failed to permit the Union to attend-- all in violation of Section 7114(a)(1) and (8) of the Act. Accordingly, I find no violation bottomed upon the training programs held by management herein. /10/ I deem this case to differ from the factual situation presented in Northeastern Program Center; et. al. A/SLMR No. 753. In the cited case the sole change occurred in the job description of the employees and not in the duties themselves. In the case at bar, as contracted with the Northeastern Program case, it had not been the practice to perform the duties now required. /11/ Note is taken that General Counsel alleged that the failure to bargain over impact and implementation was likewise a breach of the collective bargaining agreement. The contractual clause which was deemed breached, parallels the statutory language in respect to bargaining obligations by the employer. Thus, I find it sufficient to conclude that Respondent violated the aforementioned sections of the Act by failing to bargain over the implementation and impact of the aforesaid programs.