[ v17 p1011 ]
17:1011(137)CA
The decision of the Authority follows:
17 FLRA No. 137
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 7-CA-30405
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. Thereafter the General Counsel and the
Charging Party filed exceptions and briefs.
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 herein.
In agreement with the Judge, the Authority concludes that the
complaint which alleges a violation of section 7116(a)(1) and (5) of the
Statute should be dismissed. The Authority concludes that the facts as
found by the Judge do not establish that the Respondent had a duty to
bargain concerning the change in established conditions of employment of
unit employees at the Mid-American Program Service Center, Kansas City,
Missouri (MAPSC). Thus, as found by the Judge, guidelines issued by the
Respondent to its supervisors which, inter alia, concerned the
rescheduling of lunch periods in connection with annual leave, merely
restated a policy which had been established and was in effect since
1979 throughout Respondent's nationwide components and headquarters,
with the sole exception of MAPSC. See United States Department of the
Treasury, Internal Revenue Service, Chicago, Illinois, 13 FLRA 636
(1984); Department of the Treasury, Internal Revenue Service,
Cleveland, Ohio, 6 FLRA 240 (1981). These guidelines do not require
MAPSC to change its local policy, established in 1979, concerning the
rescheduling of lunch periods in conjunction with annual leave.
Moreover, when MSPAC decided to change its policy in January 1983, to
make it consistent with the national policy, it notified the Charging
Party's local official, pursuant to the parties' negotiated agreement
concerning proposed changes of working conditions which affect only one
component, and the Union did not request to bargain concerning the
proposed change. Under these circumstances, the Authority concludes
that the Statute was not violated when the Respondent issued its
guidelines to supervisors or when MAPSC implemented its proposed changes
in the absence of a request to bargain by the Charging Party or its
local.
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-30405 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 13, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Cathy A. Auble, Esq.
James J. Gonzales, Esq.
For the General Counsel
Mr. Reginald T. Huey
For the Charging Party
Carl J. Clayton, Esq.
Mr. Robert D. Pack
For the Respondent
Before: ELI NASH, JR., Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, AFL-CIO (herein referred to as AFGE or the
Union), on May 24, 1983 and amended on August 26, 1983, against the
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland (herein referred to as Respondent), the General
Counsel of the Authority, by the Regional Director for Region 7, issued
a Complaint and Notice of Hearing on August 31, 1983, alleging that
since on or about November 26, 1982, Respondent violated section
7116(a)(1) and (5) by unilaterally changing the terms and conditions of
employment in one of its components by implementing a regulation
entitled "Flextime PMS of 005", which implementation was first
discovered by the Union during March 1983, without giving the Union
notice or affording it the opportunity to bargain over the substance,
impact and implementation of the charge.
Respondent's Answer substantially denied the allegations of the
Complaint.
A hearing on the Complaint was conducted in Kansas City, Kansas, at
which time all parties were represented and afforded full opportunity to
adduce evidence, /1/ call, examine and cross-examine witnesses, and
argue orally. Briefs were filed by respondent and Counsel for the
General Counsel.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following findings of fact, conclusions of law, and
recommendations:
Findings of Fact
There is no jurisdictional question herein.
The Mid-American Program Service Center, Kansas City, Missouri
(herein called MAPSC or Kansas City Program Center) is a Social Security
Program Service Center located in Kansas City.
The Union is the exclusive representative of a nationwide
consolidated unit of Social Security Administration employees. As
exclusive representative in a nationwide consolidated unit the AFGE
delegated authority to negotiate on behalf of Respondent's employees to
the AFGE General Committee of the Social Security Administration,
(hereinafter called the General Committee.) The General Committee, is
headed by Mr. Arthur Johnson, who has occupied the position since
December 1979. In addition to heading the General Committee, and acting
thereby as national spokesperson, Mr. Johnson also serves as President
of American Federation of Government Employees, Local 1336 (herein
called the local), the local exclusive representative involved herein.
Mr. Johnson has been local union president since about 1964. More will
be said about Mr. Johnson's local role later.
As national spokesperson, Mr. Johnson is the AFGE representative
designated to receive notice from Respondent concerning any changes in
conditions of employment, and to act as point of contact within AFGE
over matters which the Respondent might wish to bring to AFGE's
attention. Consistent with this role as national spokesperson and the
previous practice between AFGE and the Respondent, Mr. Johnson would
have in his national spokesperson role, received pre-implementation
notice concerning matters such as the 1982 Flextime PMS regulation. The
existing practice between the parties is that the Respondent, usually
through its Director of Labor Relations Peter Spencer, would give
written notice of matters to Mr. Johnson, addressing Mr. Johnson
exclusively in his capacity as national spokesperson. According to Mr.
Johnson, he has never delegated his authority or responsibility to
receive notice on national matters from the Respondent to anyone. He
has, however, delegated the authority to initiate bargaining, which he
usually does in writing, but these delegations are limited to a
particular issue. Further, Mr. Johnson would assign the issue to one of
the members of the General Committee.
One of the component parts of the General Committee is the Payment
Center Council, which represents employees in the various payment
service centers. One of these Payment Service Centers, as already
noted, is Respondent's Mid-America Program Service Center located in
Kansas City, Missouri. As already noted, Mr. Johnson is the President
of Local 1336, and as president Johnson is responsible for handling the
day-to-day matters involving labor relations issues affecting employees
at MAPSC. In this role, he is also responsible for receiving notice on
behalf of the local from MAPSC where local matters are involved. When
giving notice of changes in conditions of employment the practice
between MAPSC and the local is that MAPSC usually gives written notice
of local matters through its Director of Management to Mr. Johnson,
addressed to Johnson in his capacity as President of the local. On the
occasion in question, local notice was given orally originating from the
Director of Management or one of the labor relations specialists.
According to Mr. Johnson, he has never delegated the authority to
receive notice on behalf of the local to anyone and only he has
authority to initiate bargaining on behalf of the local. Such authority
is in writing and usually delegated to an officer of the local such as
the chief steward.
By letter dated January 11, 1983, MAPSC's Director of Management
notified Mr. Johnson, as local president, that MAPSC intended to follow
the 1982 regulation and attached a copy of the 1982 regulation to the
letter. It is uncontroverted that Mr. Johnson, in his capacity as
national spokesperson, never received notice of the implementation of
the 1982 regulation. Mr. Johnson's first knowledge of the 1982
regulation, in any official capacity, was when he received the January
11, 1983 letter from MAPSC. Even though the only notice to Mr. Johnson
came from MAPSC, MAPSC Labor Relations Specialist Robert Pack conceded
that he had no delegated authority from Respondent to bargain over the
substance of the 1982 regulation. The 1982 regulation, as previously
noted had been implemented for approximately two months by the time Mr.
Johnson received any notice.
The policy in question was first introduced around February 22, 1979.
The Respondent established a policy for its employees located at its
headquarters and program service centers allowing them to schedule a
lunch period during the last two hours of a workday so long as such a
"late lunch" was taken contiguously to a period of leave. The above
policy was published in the SSA personnel Guide for supervisors on the
above date and read as follows:
Employees are not permitted to take their lunch break within 2
hours of the beginning or end of their 8-1/2 hour day unless the
lunch is contiguous to a period of leave.--
A local policy, it must be noted, existed in the Kansas City office
which was contrary to Respondent's national policy to restrict
employees' components from taking their respective lunch periods during
the first two and last two hours of their eight-hour workday unless such
lunch period was scheduled in conjunction with a minimum of two hours of
leave.
Sometime around November 26, 1982, Respondent issued and implemented
in its Personnel Manual for Supervisors-- SSA called "Flextime PMS g005"
which provided, in pertinent part, that:
Employees are not permitted to take their lunch break within 2
hours of the beginning or end of their 8-1/2 hour day. So long as
this rule is not violated, supervisors may arrange an employee's
lunchtime to connect it to a period of leave.
The Flextime PMS g005 regulation was issued by Respondent, because it
intended to reaffirm its policy of restricting certain employees from
taking one half hour work periods during the first two and last two
hours of their eight hour work day unless scheduled in conjunction with
a minimum of two hours leave. Prior to the issuance of this regulation,
Respondent's policy for its employees located at headquarters and in its
program service centers, as previously noted, was that employees were
able to schedule a lunch period during the last two hours of the workday
so long as such a late lunch was taken contiguously to a period of
leave.
Upon receiving the January 1983 memorandum, Mr. Johnson designated
chief steward Mike Hughes to get an explanation or classification of
what the cover letter meant from labor relations Specialist Bob Pack.
Mr. Hughes returned to report the first of his conversations with Mr.
Pack which was that under the 1979 policy an employee could take a lunch
break in the last two hours of the day so long as it was connected with
a period of leave; and under the new 1982 procedure they could not.
Mr. Johnson's understanding was that under the 1979 procedure the
supervisor had more discretion to give the leave than in the 1982
procedure.
Article A of the parties collective bargaining agreement provides
instructions concerning the level at which pre-implementation notice of
Respondent-initiated changes in condition of employment must be given.
The 1982 regulations herein was distributed to three components within
Respondent: headquarters, payment service centers, and data operations
centers. Such distribution shows that the implementation of the 1982
regulation covered more than one component of the Respondent within the
meaning of the parties collective bargaining agreement.
Article 4 of the parties collective bargaining agreement dealing with
negotiations between the parties provides, as follows:
Article 4
NEGOTIATIONS DURING THE TERM OF THE AGREEMENT
Section 1-- General
The Administration will provide the Union reasonable advance
notice prior to implementation of changes affecting conditions of
employment subject to bargaining under 5 USC 71. Upon notice from
the Administration of a proposed change, the designated union
representative will notify the designated management
representative of its desire to consult and/or negotiate on the
change.
The Union will submit written proposals if applicable within a
reasonable period after notice of the proposed change. Bargaining
will begin as soon as possible, and will not exceed ten (10)
working days. All issues not resolved at that time may be
referred to the Federal Service Impasses Panel for resolution
under its rules.
Section 2-- National Level
A. The parties agree that notice of proposed
Administration-wide or intercomponent changes will be dealt with
by the parties at the National level. For notification at the
National level the Associate Commissioner, OMNBP, or the designate
management representative will provide the Spokesperson, General
Committee, or designated AFGE Local 1923 or Council representative
with timely notice and seven copies of proposed management
initiated changes.
1. Negotiations over conditions of employment that impact on
all six (6) components will be represented by the following
negotiators and will be designated by the appropriate AFGE Council
and Local 1923.
(a) Local 1923
(b) AFGE National Council of SSA Payment Centers
(c) AFGE National Council of SSA Field Operations
(d) AFGE National Council of SSA Office of Hearings and Appeals
(e) AFGE National Council of Data Operations Centers
(f) AFGE National Council of Field Assessment
2. Negotiations over conditions of employment that impact on
less than six (6) but more than one (1) component shall be
represented by one (1) negotiator designated by each affected
component.
Section 3-- Component Level
The parties agree that notice of proposed changes which affect
only one component (Field, Program Service Centers, Headquarters,
Hearing and Appeals, Field Assessment Offices, Data Operation
Centers) will be matters dealt with by the parties at the
component level. The designated management representative will
provide the designated union representative timely notice of
proposed component-wide management initiated changes.
Negotiations over conditions of employment that impact on one
(1) component shall be represented by at least two (2) negotiators
(but not less than the number of management's negotiators)
designated by the appropriate council president.
Section 4-- Regional/Program Service Centers/Data Operations
Centers Changes
The parties agree that notice of proposed changes which affect
only one Field Operations Region, Field Assessment Region,
Hearings and Appeals Region, Program Service Center, and Data
Operations Center, will be given to the Union and upon request
negotiated at that level. The designated management
representative with timely notice of proposed management initiated
changes. Negotiations over conditions of employment that impact
on the above entities will be represented by two (2) negotiators
(but less than the number of management's negotiators) designated
by the appropriate union official.
A designated union representative representing the Union in
negotiations under the terms of this agreement, who would
otherwise be in duty status will be authorized official time and
shall be entitled to reimbursement for travel and per diem
expenses, as required by 5 USC 71. However, the Union may be
represented by additional negotiators in a non-duty status.
Section 5-- Modification of Time Frames
All time frames under this Article may be modified by mutual
consent.
Inasmuch as three components were affected by the 1982 regulation, the
Charging Party and General Counsel assert that Article 4, Section 2
above would apply, and therefore the national spokesperson should have
been notified of the proposed change. The contract also provides that
the only circumstances in which a local representative of AFGE is to
receive notice of planned changes in working conditions is where the
change is to affect only one installation. In addition, if Respondent
were making a change by means of issuing a written announcement of same,
and the change was to affect only one installation, the distribution
code at the bottom of the announcement would specify the particular
installation. In the case of a change that was to affect only MAPSC,
the correct distribution code would be MAPSC, and would not specify SSA
or that the change had come from Respondent.
As noted, since February 1979, MAPSC had a practice of allowing
employees to schedule their respective lunch periods of thirty minutes
in connection with a leave period of 15 minutes or more in such a manner
as to allow employees to take a lunch period within the last two hours
of their workday. This practice was not consistent with Respondent's
1979 policy. MAPSC enforced the 1982 regulation, effective March 8,
1983, and thereby stopped the practice of permitting employees to take
their respective lunch periods during the last two hours of the workday
and contiguously with a minimum period of leave of 15 minutes.
Indeed the collective bargaining agreement provides that all
practices which were in effect on the effective date of the contract and
which were not specifically covered by the contract were to continue as
past practices and therefore could not be changed except in accordance
with the Statute. /2/ The effective date of the contract is June 11,
1982. The past practice at issue existed from at least February 1979.
The contract is silent on the matter of lunch breaks, as the parties
decided during national negotiations on Article 31, "Time and Leave," to
let past practices concerning lunch breaks to prevail.
Conclusions
The General Counsel asserts that Respondent changed a past practice
which had been known to it for nearly three years, that it initially
gave no notice and when notice was finally given, that notice was given
at the wrong level. In addition the General Counsel claims that the
flextime regulation herein was a negotiable subject.
Respondent argues that the issuance of PMS g005 was not a change in a
condition of employment. If so, Respondent acknowledges an obligation
to notify and negotiate at the national or consolidation level.
Case law dictates that in order to sustain the burden of proving a
past practice it must be established not only that management knowingly,
but consistently allowed or condoned the practice to continue. Polaris
Missile Facility Atlantic, Charleston, South Carolina, 6 FLRA 372
(1981); Department of the Treasury, Internal Revenue Service,
Cleveland, Ohio, 3 FLRA 655 (1981); Department of the Treasury,
Internal Revenue Service, Cleveland, Ohio, 6 FLRA 240 (1981). Where
management merely reaffirms a working condition there is no change in
conditions of employment. Department of Health, Education and Welfare,
Region V, Chicago, Illinois, 4 FLRA 736 (1980); Department of the
Treasury, Internal Revenue Service, Cleveland, Ohio, 6 FLRA 240 (1981).
This same case law places the burden of proof on the General Counsel
to establish by a preponderance of the evidence that agency management
knowingly and consistently acquiesced in the practice.
Applying these principles to the instant matter, it is clear that the
General Counsel would have to prove, since this is a national regulation
and all sides contend that notification and bargaining should come from
the national level, that national management was aware of and condoned
the "late lunch" policy practiced in the Kansas City Service Center
before it could establish a past practice requiring negotiations prior
to the change. It must be noted that the "late lunch" policy is not all
that the name implies. The General Counsel relies, erroneously in my
view, on the lack of negotiations over lunch periods. What is involved
here is not a typical lunch period, but a leave policy. The two are
distinguishable. In my view, the General Counsel failed to meet the
burden of proof.
The record leaves no doubt that Flextime PMS g005 is a national
regulation or guide. /3/ Consequently, bargaining on the "late lunch"
policy, if required, would be at the national level. The General
Counsel focused on exceptions to the national policy at the Kansas City
Service Center where for several years Respondent's local supervision
has indeed allowed exceptions to the national policy. He ignores the
fact that most other components had applied the late lunch policy in a
fashion consistent with what Respondent sought to obtain here. While
the General Counsel established that local supervision allowed such
exceptions it did not establish when or under what circumstances
national management became aware of the local exceptions or that
national management ever acquiesced in the local policy. In fact, since
most other components applied the policy in a fashion consistent with
the 1982 change it would not be unreasonable to assume that Respondent
was unaware of the different interpretation of Kansas City supervisors
until shortly before the regulation or guide was issued. Similarly, the
record suggests that national management never acquiesced in any local
manager's interpretation of the February 1979 regulation which was
inconsistent with the national policy.
Since the policy was established at the national level and there
apparently was no authority at the Service Center level to change that
policy, it is difficult to see how local exceptions to the national
policy could ripen into an established past practice at a level where
there is no obligation to bargain. It is my opinion that the policy
could have matured into a condition of employment only if, at the
national level, Respondent had knowledge of and acquiesced in the local
exception. Thus, exceptions granted by local supervisors, when they had
no authority to do so, could hardly be considered as acquiescence by
Respondent at the national level. Respondent's regulation of November
1982 made it clear that it did not condone local supervisors actions
regarding a "late lunch" policy inconsistent with its interpretation of
that policy and the 1982 regulation clearly affirmed its
dissatisfaction. In my opinion, Respondent's November 1982 regulation
was a reaffirmation of an existing policy and not a change in conditions
of employment at the Kansas City Service Center.
Finally, the General Counsel suggests that Respondent acquiesced in
the Kansas City Service Center's application of the regulation, or that
Respondent had knowledge of and allowed the practice at the Kansas City
Service Center to continue. Again, the record discloses that
Respondent's written and unwritten policy was always not to allow
employees to take their lunch periods during the last two hours of the
day unless in connection with two hours leave. Respondent's latest
regulation shows no change in that position, but was merely an attempt
in writing to bring all of the Service Centers under the same
regulation. Clearly a reaffirmation of what it interpreted the policy
to be and contrary to the General Counsel's contention that it allowed
the "late lunch" practice to continue.
Since it is my conclusion that the General Counsel did not establish
by a preponderance of the evidence that Respondent changed a condition
of employment, I therefore, deem it unnecessary to decide whether
notification was given to a proper union official.
In light of all of the foregoing, it is found that Respondent did not
violate section 7116(a)(1) and (5) of the Statute by unilaterally
changing the terms and conditions of employment by implementing a
regulation entitled "Flextime PMS of 005" without providing prior notice
to the Union and affording it an opportunity to bargain over the
substance, impact and implementation of the change. /4/ Accordingly, it
is recommended that the Authority adopt the following Order:
ORDER
It is hereby ordered that the complaint in Case No. 7-CA-30405, be and,
it hereby is, dismissed in its entirety.
ELI NASH, JR.
Administrative Law Judge
Dated: September 27, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel's uncontested motion to correct the exhibits
of the proceedings is granted.
/2/ ARTICLE I
GOVERNING LAWS AND REGULATIONS
Section 2-- Past Practices
It is agreed and understood that any prior benefits and
practices and understandings which were in effect on the effective
date of this agreement at any level (national, council, regional
and local), and which are not specifically covered by this
agreement and do not detract from it shall not be changed except
in accordance with 5 USC 71.
/3/ If it is a guide for supervisors, and such is not clear on the
record, there may well be no obligation to bargain, since Respondent
would merely be informing its supervisors how to apply the regulation.
Based on the findings herein, I deem it unnecessary to decide that
issue.
/4/ In addition the General Counsel raised issues concerning
negotiability and waiver in this matter. In view of the above
disposition, I view it as unnecessary to address those issues.