[ v16 p674 ]
16:0674(99)CA
The decision of the Authority follows:
16 FLRA No. 99
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-1066
DECISION AND ORDER
The Chief Administrative Law Judge issued the attached Decision in
the above-entitled proceeding finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. The Respondent filed exceptions to the Judge's
Decision and the General Counsel filed an opposition thereto.
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 /1/ and recommended Order.
While we agree with the Chief Judge that a status quo ante remedy is
warranted, we do not rely upon his application of the criteria in
Federal Correctional Institution, 8 FLRA 604 (1982), to reach such
result. Consideration of the Federal Correctional Institution criteria
is applicable in cases where a Respondent was found to have failed to
negotiate impact and implementation of a decision which was itself not
negotiable. In this case, by contrast, we conclude that the decision to
change the start time of employees in the San Jose District Office was
negotiable inasmuch as the record fails to establish that the change
effectuated by the Respondent was determinative of the numbers, types or
grades of employees or Positions assigned to a work project or tour of
duty within the meaning of section 7106(b)(1) of the Statute. See,
Department of Transportation, Federal Aviation Administration,
Washington, D.C., and its Chicago Airways Facility Sector, 16 FLRA No.
71 (1984), and cases cited in note 3. In view of the Respondent's
failure to fulfill its bargaining obligation concerning the decision to
change the start times of unit employees, the Authority finds that an
order directing the restoration of the previous existing start time will
effectuate the purposes and policies of the Statute.
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 Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland shall:
1. Cease and desist from:
(a) Implementing changes in working conditions of employees, such as
the 7:00 a.m. start time under the San Jose District Office Flexitime
Plan, without having first completed bargaining with the exclusive
representative of its employees, the American Federation of Government
Employees, AFL-CIO, over such proposed changes.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind the changes in the start time of employees within the San
Jose District Office implemented on May 26, 1982, and restore the start
time in effect prior thereto.
(b) Notify the American Federation of Government Employees, AFL-CIO,
of any intended change with respect to the start time under the San Jose
District Office Flexitime Plan and, upon request, bargain with the
exclusive representative over such proposed changes.
(c) Post at its San Jose District Office, San Jose, California,
copies of the attached Notice to be furnished by the Federal Labor
Relations Authority. Copies of said Notice shall be signed by the
Assistant Regional Commissioner for Field Operations, 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 insure that such Notices are not altered, defaced, or
covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal Labor
Relations Authority, in writing, within 60 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., November 30, 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 make changes in working conditions of employees, such as
the 7:00 a.m. start time under the San Jose District Office Flexitime
Plan, without having first completed bargaining with the exclusive
representative of our employees, the American Federation of Government
Employees, AFL-CIO, over such proposed 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
Statute.
WE WILL rescind the changes in the start time of employees within the
San Jose District Office implemented on May 26, 1981, and restore the
start time in effect prior thereto.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, of any intended change with respect to the start time under the
San Jose District Office Flexitime Plan and, upon request, bargain with
the exclusive representative over such proposed changes.
(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, Federal Labor Relations Authority, Region IX, whose address
is: 530 Bush Street, Room 542, San Francisco, California 94108, and
whose telephone number is (415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION,
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-1066
Wilson Schuerholz
For the Respondent
Vince Morgante
For the Charging Party
Josanna Berkow, Esq.
For the General Counsel
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, (5 U.S.C. 7101 et seq.) and the Final Rules and
Regulations issued thereunder (5 C.F.R. 2423.14 et seq.) It is based on
a Complaint issued by the Regional Director of Region IX, Federal Labor
Relations Authority, alleging that Respondent, on May 26, 1981,
unilaterally changed the flexitime program at its District Office in San
Jose, California, in violation of Section 7116(a)(1) and (5) of the
Statute.
A formal hearing was held in San Francisco on October 21, 1981. All
parties were afforded full opportunity to examine witnesses, introduce
evidence and to file briefs. Upon the entire record, and my observation
of the witnesses and their demeanor, I make the following findings of
fact, conclusions and recommended order.
Findings of Fact
1. The American Federation of Government Employees, AFL-CIO is the
certified collective bargaining representative of a national
consolidated unit which includes employees in the San Jose District
Office of the San Francisco Regional Office of Respondent.
2. Prior to the certification of AFGE as representative of a
consolidated nationwide unit on August 30, 1979, a collective bargaining
agreement had been entered into between the San Francisco Region of
Respondent's Office of Program Operations, Field Operations, and the
Council of District Office Locals of AFGE in the San Francisco Region.
3. While the contract did not cover flexitime, a flexitime program
had been in place in the San Jose District Office for years, and had
become an established term and condition of employment not subject to
change without negotiations as to substance as well as impact and
implementation. The plan provided for a workday from 6:00 a.m. to 5:30
p.m., with a core time (during which all were to work) from 9:00 a.m. to
2:30 p.m.
4. On October 18, 1979, following certification of AFGE as exclusive
representative of the new national consolidated unit, President Kenneth
T. Blaylock wrote Stanford Ross, Commissioner of the Social Security
Administration. His purpose was to "outline the delegations of
authority by AFGE to administer the national consolidated exclusive
recognition between AFGE and the Social Security Administration." He
announced the establishment of a General Committee of SSA Councils
representing various field office personnel, and AFGE Local 1923,
representing headquarters personnel. The relevant Council for matters
affecting the San Jose office was the AFGE National Council of SSA Field
Operations. Authority to deal directly with the Commissioner on
"matters national in scope" was delegated to the chief spokesperson of
the Committee. Authority to deal with the heads of the six SSA
components for which a Council (or local 1923) existed was delegated to
the Council Presidents and the Local President on matters affecting
their components. Provision was made for further delegation of
authority "for those matters which are local or regional." Finally,
Blaylock requested that copies of all "changes to regulations and
personnel policies" be sent to the Committee Representatives," and other
representatives who received them under National Consultation Rights,
that "Local or Council Presidents . . . receive copies of the standard
operating procedures and other personnel policies in their respective
offices, Payment Centers, etc., and in accordance with Local or Council
agreements or the memorandum of understanding . . . (and that) local or
regional problems which cannot be resolved locally may be channelled
through the component Presidents, or the Committee, as appropriate, for
processing to SSA."
5. On October 21, the Executive Vice President, John Harris of the
National Council of SSA Field Operations wrote a follow-up letter to the
Commissioner of SSA, for the purpose of clarifying the delegation as it
concerned field offices and providing appropriate redelegations. Five
Executive Officers of the National Council were responsible for dealing
with matters affecting field employees nationally. Each of ten Regional
Vice Presidents would serve as the chief representative of the Council
for the Region he or she represented. There would be "virtually no
change" for the San Francisco Region, where the President of the
District Office Council has "been delegated full authority to act on
behalf of this Council in LMR (labor-management relations) matters."
Within each Region, at the level of each installation, the Council
"delegated the LMR responsibility to the Local of AFGE which has
historically held recognition." Where there was an existing agreement
"setting down conditions of employment . . . those matters so set down
shall continue in full force and effect until superceded by a National
Master Agreement. A Memorandum of Understanding with Mr. Blaylock to
define LMR for those installations" not covered by agreement would serve
in lieu of an agreement until superceded. Each Local President was
designated a Council Representative, and installation management was
reminded of its obligation to notify, meet and confer with the Local
President whenever a bargainable change was proposed. Finally the
letter noted that, while many Local contracts would require consultation
with the Union prior to implementation of any changes, the "obligation
to bargain with AFGE as the exclusive representative is superior,"
adding that in "no way does the consultation process compromise the duty
to bargain with the designated Council Representative, whomever that is,
wherever that is." /2/
6. Respondent and AFGE began negotiations of a nationwide agreement
in April of 1980. Article 10, Section 2 of the Union's initial proposal
provided that "(u)pon request from the Union at the appropriate level,
the Union and the employee will negotiate procedures for implementing
flexitime . . . ." Respondent's initial proposal was that it would upon
request from the Union, "enter into negotiations of procedures for
implementing flexitime . . . after a determination by the Administration
that flexitime . . . (is) to be implemented in a component."
7. On August 12, 1980, District Manager Betsy Brown proposed, in a
memo to Darlene Kinney, Union Representative for the San Jose office,
that the flexitime plan be modified by starting the workday at 7:00 a.m.
instead of 6:00 a.m. She pointed out that substantial changes had
occurred since instituting flexitime, including a substantial reduction
in staff and in supervision, which had caused serious operational and
public relations problems. Those who flexed in at 6:00 a.m. (about 25%)
were at work for 3 hours before the office opened to the public, were
difficult to supervise, and did not carry their "fair share" of the
interviewing load. The result was that she could not adequately cover
interviews after their tour of duty ended at 2:30 p.m., and that the
staff that flexed late was burdened with a disproportionate part of the
interviewing load. She requested that the Union consider her reasons
for the proposed change and provide her with written comments within 10
days.
8. In Kinney's absence her alternate requested postponement of the
reply date from August 22 to August 27. Brown agreed, noting that an
issue of such concern deserved full consideration and stressing her
desire that the Union come forward with constructive suggestions and
proposed resolutions.
9. On August 27, Kinney answered Brown, declining to enter
negotiations and asserting that the proposed change could not be
implemented because the subject matter was on the bargaining table in
the negotiations between the National Office of AFGE and the
Commissioner of Social Security. She warned Brown that implementation
without agreement at the local or the national level would result in the
filing of an unfair labor practice charge.
10. On September 5, Brown asked Kinney to reconsider and submit her
comments on the proposed change, stating that she would, if necessary,
forward her plan for the approval of her superiors without input from
the Union. /3/ On September 12, Kinney responded that her position was
unchanged, although she was willing to discuss the later (after 2:30)
interview schedule. /4/
11. On September 15, Brown proposed to her superiors in San
Francisco that the flexitime schedule be changed to a 7:00 a.m. starting
time. On May 14, she received clearance and informed the Union of her
intentions. An announcement was made on the following day, and the
change was made on May 26.
Discussion and Conclusions
Upon certification of AFGE on August 30, 1979, Respondent's
obligation to bargain respecting working conditions in the entire
nationwide consolidated unit ran to AFGE. The several hundred
preexisting units disappeared, and the many bargaining relationships at
lower echelons of both AFGE and SSA were extinguished. Department of
Health and Human Services, Social Security Administration, 6 FLRA 202.
As the Authority there stated:
. . . the mutual obligation to bargain as articulated in the
Statute exists only at that (the National) level of exclusive
recognition with respect to conditions of employment which affect
any employees within the unit: a contrary result would render
consolidation meaningless.
It follows that SSA violated the law when it adjusted the flexitime
hours in the San Jose District without affording AFGE an opportunity to
bargain, unless those parties had agreed to bargain about such matters
at the lower level. Put another way, local unions and other
constituents of AFGE had no jurisdiction to negotiate agreements on
behalf of Respondent's employees, upon certification of the National
Union as exclusive representative, unless and until the latter
specifically granted them authority to do so. SSA defends here on the
ground that the Blaylock and Harris letters, particularly the latter's
statement that installation managers who proposed changes were obligated
to notify, meet and confer with the President of the relevant Local
Union, constituted a delegation of bargaining authority which it
accepted and which made Brown's approach to Kinney appropriate. Hence
SSA argues that it tried to bargain, and it was the local union which
refused to bargain in good faith.
Neither letter relied upon by SSA speaks to the relationship between
the label relations structure they attempt to create and the national
level bargaining which was still some months down the road. Thus, each
letter set forth delegations which were necessary for contract
administration and for the day-to-day dealings in the resolution of
specific problems in the various components and levels of Respondent's
organization, as well as AFGE's. AFGE's delegations are arguably
confusing in terms of delineating how collective bargaining and contract
administration would go on pending negotiation of a national agreement.
The actual practice was likewise confusing. The local union official
volunteered to discuss the later interview schedules, a matter which,
while not an express part of the flexitime program, is inextricably
interwoven with it, and which is surely no less local in its impact that
is changing the start-up time in the San Jose District office.
Nevertheless, the local union official declined to enter into
discussions (whether consultation or negotiation) on the ground that the
subject matter was on the national bargaining agenda. It was then
incumbent upon Respondent to seek clearance from appropriate officials
of the National Union to deal with local union officials about the
matter, and, absent such agreement, to negotiate the proposed change at
the national level. It failed to do so, but simply implemented without
further ado. It therefore violated Section 7116(a)(1) and (5) by
instituting the change in the starting time for the flexitime program
from 6:00 a.m. to 7:00 a.m. without affording AFGE, the newly-certified
exclusive representative of the affected employees, an opportunity to
bargain about the matter.
There remains the question whether it is appropriate that the
remedial order include a provision for restoration of the status quo
ante. In my judgment the criteria set forth in Federal Correctional
Institution /5/ are met. Thus, Respondent's failure to take its problem
to officials of the National Union before making its change was
high-handed. It was taken in the face of a clear threat that an unfair
labor practice charge would be filed and after clearance at Respondent's
headquarters. Employees lost their right to flex in early as well as
parking-cost advantages. The efficiency of agency operations may well
be impaired, in that the old late interview problem will thereby be
resurrected, as well as the problems of supervising the early hours and
distributing interviewing time equitably. Nevertheless, it is not clear
that serious disruption of the District Office's mission would ensue,
and there exist a number of ways to address those problems short of
unilaterally altering the workday. Absent serious impairment of
efficiency, the use of a mere prospective bargaining order leaves the
violator in possession of the fruits of its unfair labor practice during
the negotiations ordered, with little incentive to bargain with dispatch
and in good faith. Accordingly, I recommend that the status quo ante be
restored.
Having concluded that Respondent SSA violated Section 7116(a)(1) and
(5), I recommend that the Federal Labor Relations Authority issue the
following:
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,
Baltimore, Maryland shall:
1. Cease and desist from:
(a) Implementing changes in working conditions of employees,
such as the 7:00 a.m. start time under the San Jose District
Office Flexitime Plan, without having first completed bargaining
with the exclusive representative, the American Federation of
Government Employees, over such changes.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the changes in the start time of employees within
the San Jose District Office implemented on May 26, 1981, and
restore the start time in effect prior thereto.
(b) Post at the San Jose District Office, 1111 North Market
Street, San Jose, California, copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Assistant
Regional Commissioner for Field Operations, and shall be posted
and maintained by her for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The
Commissioner shall take reasonable steps to insure 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 IX, Federal
Labor Relations Authority, 530 Bush Street, 5th Floor, Room 542,
San Francisco, California 94108, in writing, within 60 days from
the date of this order as to what steps have been taken to comply
herewith.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: October 27, 1982
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 POLICIES OF CHAPTER 71 OF
THE TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make changes in working conditions of employees, such as
the 7:00 a.m. start time under the San Jose District Office Flexitime
Plan, without having first completed bargaining with the exclusive
representative, the American Federation of Government Employees, over
such changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured by the
Statute.
WE WILL restore the 6:00 a.m. start time under the San Jose District
Office Flexitime Plan.
(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 any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region IX, whose
address is: 530 Bush Street, Suite 542, San Francisco, California
94108, and whose telephone number is (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ See also Department of Health and Human Services, Social Security
Administration, 10 FLRA 77 (1982); Social Security Administration, 11
FLRA No. 76 (1983).
/2/ Council for the General Counsel renews, in her brief, her
objection to the admission of those two letters as not properly
authenticated. Not being disposed to require the presence in San
Francisco of the National President of AFGE, or one of its National
Council Vice Presidents, or the Commissioner of SSA, and feeling that
the likelihood of forgery or alternation of such high-level and
important documents is as remote as the exposure of such skulduggery is
certain, I reaffirm my ruling that the letters are admissible. Where
the putative authors of the letters are high officials of the Charging
Party and the genuineness of the documents is easily verified, there is
utterly no warrant for applying the strict rules of evidence that would
attend a libel proceeding.
/3/ Brown's repeated requests for "input," and for written comments,
constructive suggestions and proposed resolutions sound in consultation
as opposed to negotiation. She in fact testified to her understanding
that she was authorized to consult: i.e., to get the Union's input and
then use it, or ignore it, as she saw fit.
/4/ A reading of Joint Exhibit 2 and Kinney's testimony (Tr. 32)
indicates that provision for late interviewing was an integral part of,
at least closely related to, the flexitime plan. Local management and
Kinney did discuss and mutually agree upon changes in the late interview
schedule in December 1980, and apparently did so again, after the May
1981 change in starting time. Similarly, and adding to this confusing
bargaining pattern, it appears that other components of the San
Francisco Regional office dealt with local unions concerning flexitime.
On the other hand Regional officials of SSA also refused to discuss
matters with local union officers on the ground that the subject was on
the National bargaining table.
/5/ 8 FLRA 604 (1982).