18:0073(13)CA - HHS, SSA and AFGE Local 3186 -- 1985 FLRAdec CA
[ v18 p73 ]
18:0073(13)CA
The decision of the Authority follows:
18 FLRA No. 13
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3186, AFL-CIO
Charging Party
Case No. 3-CA-30725
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
General Counsel filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-30725 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Daniel H. Green, Esquire
Jay Clary, Esquire
For the Respondent
Bruce D. Rosenstein, Esquire
For the General Counsel
Before: BURTON S. STERNBURG, 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.Section 7101 et seq. and the Rules and Regulations issued
thereunder.
Pursuant to a charge filed on August 31, 1983, by Local 3186,
American Federation of Government Employees, (hereinafter called Local
3186 or the Local Union), a Complaint and Notice of Hearing was issued
on October 25, 1983, by the Regional Director for Region III, Federal
Labor Relations Authority, Washington, D.C. The Complaint alleges that
the Department of Health and Human Services, Social Security
Administration, (hereinafter called Respondent or SSA), violated
Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by virtue of its
actions in assigning four additional hours of work per week to part-time
unit employees working at its Rockville, Maryland, Branch Office without
affording the Local Union prior notice of its actions and thereafter
refusing to negotiate with the Local Union with respect to the impact
and the manner of implementation of the additional hours of work.
A hearing was held in the captioned matter on January 4, 1984, in
Washington, D.C. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on February 6, 1984, which have
been duly considered. /1/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
On August 30, 1979, pursuant to consolidation proceedings, the
American Federation of Government Employees, AFL-CIO (AFGE) was
certified as the exclusive representative in a nationwide unit of the
Respondent's professional and non-professional employees.
The unit employees working in Respondent's Rockville, Maryland,
Branch Office, the installation involved in the instant complaint, are
represented by AFGE Local 3186. Ms. Joanne Bothwell is the president of
Local 3186 and Ms. Vickie Gregory is the chief steward for Local 3186.
According to Ms. Gregory, in her capacity as chief steward she is
responsible for handling "all on site negotiations and grievances."
Pursuant to the above mentioned consolidation proceedings AFGE and
the Respondent executed a collective bargaining agreement which became
effective on June 11, 1982. Article 4 of this agreement which is
entitled "Negotiations During the Term of the Agreement" provides in
pertinent part as follows:
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, OMBP, or the designated
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.
* * * *
Section 3-- Component Level
The parties agree that notice of proposed changes which affect
only one component (Field, Program Service Centers, Headquarters,
Hearings 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.
* * * *
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 will provide the designated union 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 not
less than the number of management's negotiators) designated by
the appropriate union official.
Due to budgetary constraints, the Respondent on December 20, 1982,
was forced to curtail the weekly hours of all part-time employees and
restrict such employees to their tours of duty. Inasmuch as the
part-time employees' tours of duty were 32 hours per week, many of the
part-time permanent employees who had been working forty hours per week
prior to December 20, 1982, suffered an eight hour per week loss in
working hours. In the Rockville, Maryland, Branch Office, the office
involved in the instant complaint, the four part-time permanent
employees there employed were limited to four eight hour days per week
after December 20, 1982.
The aforementioned reduction in hours was of great concern to the
National Office of the Union and discussions thereon were held in
February and June of 1983 between representatives of the Union's
National Office and the SSA's National Office. Additionally, extensive
informal discussions on the issue were held between Mr. Peter Spencer,
Director of Labor Relations for SSA and Mr. John Harris, AFGE Field
Operations Council President.
On or about August 12, 1983, Mr. Spencer was informed by his superior
during a meeting in Birmingham, Alabama, that the Department of Health
and Human Services (HHS), the parent of SSA, had given SSA some limited
relief with respect to SSA's 1983 Fiscal Year budgetary ceiling. The
amount of relief in terms of hours available to be worked during the
remaining months of the 1983 Fiscal Year was set forth in a three page
memorandum from the Associate Commissioner for Management, Budget and
Personnel to the Deputy Commissioners of Operations, Programs and
Systems. The aforecited memorandum indicates that a number of different
components of SSA were awarded additional hours of work to be assigned
to their respective part-time permanent employees for the remainder of
the fiscal year. /2/ The August 10, 1983, memorandum, other than
explaining the effects of the 1983 budgetary relief and setting forth
the hours allotted to each component, did not go into the specifics with
respect to how each component should assign the additional hours to its
respective employees located in the various SSA sub-offices throughout
the United States.
On the following Monday, August 15, 1983, upon his return to
Washington, Mr. Spencer unsuccessfully attempted to reach Mr. Johnson on
the telephone. The next morning, August 16, 1983, Mr. Spencer reached
Mr. Johnson by telephone and related to him the good news with respect
to the budgetary relief being accorded to a number of the SSA
components. Following the telephone call Mr. Spencer sent a copy of the
Associate Commissioner's August 10, 1983, memorandum to Mr. Johnson.
According to the uncontested testimony of Mr. Spencer, Mr. Johnson was
delighted with the fact that some budgetary relief had been granted and
at no time made any request to bargain on any aspect of the budgetary
relief set forth in the August 10, 1983 memorandum.
Further, according to the uncontested testimony of Mr. Spencer,
inasmuch as the budgetary relief was being applied to more than one
component of SSA, it became a national issue and accordingly was subject
to bargaining only on the national level pursuant to Section 2, Article
4 of the collective bargaining agreement. In the absence of any
delegation to a subordinate lower level Union local, the bargaining
obligation was between Mr. Spencer and Mr. Johnson on a national level.
On August 15, 1983, the same day that Mr. Spencer had unsuccessfully
attempted to reach Mr. Johnson, Ms. Joan Keston, the Branch Manager for
SSA's Rockville, Maryland facility, received a telephone call in the
afternoon from her District Manager, Mr. Walter Miller, /3/ wherein she
was informed that she had been allotted four additional hours per
part-time employee per week for the remainder of the fiscal year. Ms.
Keston was further informed that the additional allocation of hours was
not necessarily permanent and that it might well be subject to a future
change.
Upon receiving the information about the availability of additional
hours for the part-time employees, Ms. Keston immediately contacted her
four part-time employees, informed them of the availability of four
additional hours per employee to be worked that week on a voluntary
basis and the fact that such additional hours were to be worked from 8
a.m. to 12 p.m. on their respective scheduled days off. According to
Ms. Keston, she did not advise Union Steward Gregory of the availability
of the additional hours because she, Ms. Gregory, was away from her desk
on some other Union business. Further, according to Ms. Keston, she
could not wait for Ms. Gregory's return since one of the part time
employees, Ms. Edna Jean Bynum, was scheduled to be off the next day and
if she was to be given the opportunity to work an additional four hours
it was imperative that Ms. Bynum be apprised of the opportunity that
afternoon so that she could make plans to work the following day.
Having apprised Ms. Bynum, she decided to also inform the other three
part-time employees at the same time since they were scheduled to be off
the forthcoming Wednesday, August 17, 1983. According to the undisputed
testimony of Ms. Keston, the part-time employees could not work overtime
and the only opportunity for them to work for four additional hours
would have been their respective scheduled days off. If Ms. Bynum had
not been informed on Monday about the availability of four hours work on
Tuesday, Ms. Bynum would have lost the opportunity to work the
additional hours that week.
On Tuesday, August 16th, Union Steward Gregory, who had heard of Ms.
Keston's actions via the grapevine, confronted Ms. Keston and inquired
why she had not been given official notice of the availability of
additional hours for part-time employees. Ms. Keston apologized for not
giving Ms. Gregory advanced notice of the additional hours for part-time
employees and explained the reasons for her actions, i.e. Ms. Gregory's
absence from the office at the time Ms. Keston became aware of the
availability of the additional hours for part-time employees and the
necessity of giving Ms. Bynum immediate notice and the opportunity to
voluntarily work the next day which was her scheduled day off.
Following her conversation with Ms. Keston, Union Steward Gregory,
who had received complaints from some of the part-time employees about
having the additional four hours scheduled only for the time period of 8
a.m. to 12 p.m., contacted Local Union President Joanne Bothwell and
inquired as to what procedure she, Ms. Gregory, should follow with
respect to the assignment of the additional hours.
Ms. Bothwell put a telephone call through to the Area Director's
office for the purpose of determining what restrictions, if any, had
been placed upon the local managers with respect to the assignment of
the additional hours allocated to the part-time employees. Ms. Carmen
Minnick, the Area Administrative Assistant, informed Ms. Bothwell that
it was her understanding that the local managers had the discretion to
utilize the hours as they saw fit, but that she would check the matter
out with Area Director Lucius Clark. Mr. Clark subsequently called Ms.
Keston and discussed with her the manner in which she was assigning the
additional hours to the part-time employees, i.e. 8 a.m. to 12 p.m. on
their respective days off. Upon learning from Ms. Keston that she had
decided on such a schedule because that was the time that the
investigative case load in her office was the heaviest, Mr. Clark
informed Ms. Keston that he was in agreement with her decision with
respect to the scheduling of the additional hours. Mr. Clark later
communicated this information to Ms. Bothwell.
On Wednesday, August 17, 1983, pursuant to instructions from Ms.
Bothwell, Ms. Gregory submitted a number of bargaining proposals to her
supervisor, Ms. Helaine DiGravio, who in turn subsequently submitted the
proposals to Ms. Keston.
Upon receiving the Local Union's bargaining request, Ms. Keston put a
telephone call through to Mr. Michael Gutkind, the Regional Labor
Relations Specialist, to ascertain what her bargaining obligations, if
any, were. Mr. Gutkind informed Ms. Keston that the matter of the
additional hours for part-time employees had been taken care of at the
national bargaining level and that she was under no obligation to
bargain with the Local Union.
On August 18, 1983, Ms. Keston met with Ms. Gregory to talk about the
four proposals submitted earlier by Ms. Gregory. /4/ Ms. Keston
informed Ms. Gregory that proposals (a) and (d) were not possible since
they involved overtime and overtime was not authorized. Ms. Keston
further informed Ms. Gregory that proposal (b) was contrary to the
authorization inasmuch as it provided for the utilization of hours prior
to the accumulation of same. /5/ In view of the foregoing, Ms. Keston
took the position that only proposal (c), which she had already
utilized, was the only possibility. While it is clear from the record
that the four hours of additional work could have been assigned to the
part-time employees at any time during their scheduled days off, Ms.
Keston acknowledged on cross examination that she had no intention of
negotiating any change in the work schedule that she had already
assigned to the four part-time employees.
All four part-time employees volunteered to work the extra four hours
the week of August 15, 1983. The following week, part-time employee Ms.
Edna Jean Bynum worked her additional four on Tuesday morning. Mr.
Frank Markosky was on annual leave and therefore did not work at all
that week. Mr. Hugh Hamberry and Ms. Kathleen McHugh both worked eight
hours on their scheduled day off. Thereafter, all part-time employees
were given the opportunity to work a full forty hours per week. /6/
According to Ms. Gregory, she wanted to bargain over the impact and
manner of implementation of the additional hours because she had
received complaints from a number of the part-time employees concerning
transportation and baby-sitting problems.
Discussion and Conclusions
The General Counsel takes the position that the Respondent violated
Sections 7116(a)(1) and (5) of the Statute by not giving the Local Union
appropriate timely notice of the availability of additional hours for
part-time employees and thereafter failing to bargain in good faith with
the Local Union with respect to both the impact and manner of assignment
of the additional hours to the part-time employees located in the
Rockville, Maryland, Branch Office. While acknowledging that the prime
level of recognition exists at the National Level by virtue of the
August 30, 1979, consolidated proceedings, the General Counsel
nevertheless takes the position that inasmuch as the specific regional
application of the additional hours allotted to part-time employees was
not included in the general notice given to the National Union but
rather was the subject of a subsequent delegation to the SSA's Branch
Managers, Respondent was under an obligation to bargain on the Local
level with regard to how the local Branch managers would utilize their
respective discretion with regard to the assignment of the additional
hours.
Respondent takes the position that inasmuch as the change in hours of
the part-time employees was applicable to more than one component of the
SSA its bargaining obligation, pursuant to Article 4 of the collective
bargaining contract, was limited to the National Level of the Union.
While it concedes that the notice on the National Level was not in
conformance with past practice, i.e. 10 day lead time, it defends its
action in giving the National Union notice simultaneously with the
implementation of the change on the basis of an "overriding exigency,"
namely the fact that the hours would have been lost for the week had not
notice of the opportunity to work been given to the employees
immediately. /7/ Respondent further argues that in the absence of any
delegation from the National Union to the Local Union it was under no
obligation to bargain with the Local Union absent a showing that Ms.
Keston's actions with respect to the assignment of the additional hours
deviated from the terms of the August 10, 1983 memorandum. Finally,
Respondent takes the position that even if an obligation to bargain with
the Local Union should be found to exist, Respondent was excused from
bargaining on three of the four proposals submitted by the Local Union
since they were contrary to the terms of the August 19, 1983 memorandum
which made the additional hours available. In such circumstances, it
appears to be the position of the Respondent that the only alternative
was the assignment of the additional hours in the manner originally
chosen by Ms. Keston.
A review of the charge, complaint and positions of the parties make
it clear that resolution of the instant controversy turns on the
bargaining obligation owed by Respondent to Local Union 3186, which is
the AFGE's representative at Respondent's Rockville, Maryland, Branch
Office.
Prior to August 30, 1979, the date of the consolidation proceedings,
Respondent was under an obligation to bargain with various locals of the
AFGE at the various installations of Respondent where such locals had
been accorded exclusive recognition in appropriate units. However,
subsequent to August 30, 1979, by virtue of the consolidation
proceedings, in the absence of a delegation to the contrary,
Respondent's bargaining obligation with the AFGE was limited to the AFGE
National Office. Department of Health and Human Services, SSA and Local
1346, AFGE, AFL-CIO, 6 FLRA 202 (1981).
Subsequent to the consolidation proceedings the Respondent and the
National Office of AFGE executed a collective bargaining agreement
wherein they agreed to the specific procedures to be followed with
respect to "Negotiations During the Term of Agreement" concerning
changes in conditions of employment. These procedures were set forth in
Article 4 of the Collective Bargaining Agreement and provided for
different levels of negotiation predicated upon the extent and/or
application of the specific changes in conditions of employment.
Section 2 of Article 4 makes it clear that when a change in a condition
of employment concerns more than one component of SSA then bargaining on
such change shall be on the National Level.
In view of the foregoing and based upon a literal reading of the
August 10, 1983 memorandum and the uncontroverted testimony of Mr.
Spencer concerning the application of the memorandum to more than one
component of SSA, I find that since the August 10, 1983 memorandum which
provided additional hours to part-time employees was applicable to more
than one component of SSA, Respondent, in the absence of any delegation
by the National Office of AFGE to Local Union 3186, was obliged to give
appropriate notice to, and bargain on request with, only the National
Office of AFGE.
While it is true, as pointed out by the General Counsel, that the
August 10, 1983 memorandum, a complete copy of which was supplied to the
National Office of the AFGE, other than allocating additional hours to
various components of SSA for assignment to their respective part-time
employees, did not go into specifics as to the times the hours were to
be worked, I can not conclude, as urged by the General Counsel, that
since such subject fell solely within the discretion of local managers a
separate bargaining obligation arose on the Local Union level.
While admittedly, given the number of SSA sub-offices throughout the
United States, it would be a difficult and time consuming task for the
National Office of AFGE to negotiate the impact and/or the manner of
implementation of the additional hours at every installation and that
such task would be more easily and effectively bargained at the Local
Union level, the fact remains that by virtue of the consolidation
proceedings and Article 4 of the subsequent collective bargaining
agreement, Respondent's only obligation with respect to bargaining the
issue, absent a specific delegation from the National Office of AFGE to
one of its Local unions, was with the National Office of the AFGE. In
reaching this latter conclusion I rely not only upon a literal reading
of the collective bargaining contract but also on the uncontroverted
testimony of Mr. Spencer, the only witness testifying on the
applicability and mechanics of the collective bargaining agreement.
According to Mr. Spencer, only if the local manager had deviated from
the August 10, 1983 memorandum would a bargaining obligation arise at
the Local Union level.
Accordingly, having concluded that Respondent was under no obligation
to bargain with Local Union 3186 with respect to the impact and/or
manner of implementation of the additional hours available for part-time
employees, it is hereby recommended that the Authority adopt the
following order which dismisses the complaint in its entirety.
IT IS HEREBY ORDERED, that the Complaint should be, and hereby is,
dismissed in its entirety.
BURTON S. STERNBURG
Administrative Law Judge
Dated: March 20, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ In the absence of any objection, the motion of the General
Counsel to correct the transcript is hereby granted.
/2/ SSA is divided into six components, i.e. Field Operations, Field
Assessment, Headquarters, Program Service Center, Data Operations Center
and Office of Hearings and Appeals.
/3/ The record reveals that the chain of command within SSA is as
follows: Branch Manager, District Manager, Area Director, Regional
Commissioner, Deputy Commissioner, Associate Commissioner, Commissioner.
/4/ Ms. Gergory's proposals were as follows: "(a) Four nine hour
days a week, or a combination of OT hours to bring their hours up to the
additional four. (b) Work one eight hour day during one of their
regularly scheduled days off. (c) Work two half days as per your
proposal. (d) Eight hours on Saturday during mid-pay week, in
conjunction with regularly scheduled overtime as available."
/5/ Inasmuch as only four hours were available per man for the first
week, the scheduling of an eight hour day the first week would have
forced the agency to have advanced and utilized hours which had not as
yet been accumulated.
/6/ The record indicates that the various installations of SSA kept a
tally of the additional hours that were available to be worked on a
voluntary basis. When there were not enough volunteers available for
the additional hours in any particular installation, the additional
hours would be transferred to another installation where volunteers were
available. Accordingly, enough hours were transferred from other
installations to the Rockville, Maryland Office to allow the four
part-timers there employed to work forty hours per week if they so
desired.
/7/ Inasmuch as I do not understand the complaint to encompass
the sufficiency of the notice given to the National Union, I need not
and do not make any findings thereon.