[ v60 p549 ]
60 FLRA No. 111
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
MONTGOMERY, ALABAMA
(Respondent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3627
(Charging Party/Union)
AT-CA-03-0352
_____
DECISION AND ORDER
January 13, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by eliminating the use of metal detectors at the Respondent's facility without giving the Union prior notice and an opportunity to bargain. The Judge found that the Respondent violated the Statute as alleged.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, to the extent consistent with this decision.
II. Background and Judge's Decision
A. Background [n1]
The Montgomery Hearing Office Chief Administrative Law Judge (HOCALJ) "is in overall charge of the [Respondent's] facility" and reports directly to the Atlanta Regional Chief Administrative Law Judge (RCALJ). Judge's Decision at 2. In addition to carrying a full load of cases, the HOCALJ testified that he is "chief of the administrative duties over the office of 50 some plus employees." Transcript (Tr.) at 145. His management staff consists of a Hearing Office Director (HOD) and three supervisors. See id. At the hearing, when asked whether he believes that he is "acting on behalf of the Agency" when he "take[s] an action," the HOCALJ responded affirmatively. Tr. at 150.
In August 2000, the Federal Protective Service (FPS) asked the Montgomery Hearing Office to store a magnetometer (metal detector), with the understanding that the Hearing Office could use the device if it desired. The HOCALJ and HOD accepted the magnetometer and an accompanying hand wand. See Judge's Decision at 2; Tr. at 146, 161. The magnetometer was located near the front entrance of the building in which the Hearing Office is located. This entrance is used by claimants and other visitors to employees. While the magnetometer was in use, the security guard used it to prevent visitors from bringing knives into the reception area. Judge's Decision at 3.
In May 2002, the Acting Director of SSA's Office of Management issued a memorandum to RCALJs and other regional officials regarding the use of magnetometers and security wands in hearing offices. The memo's stated purpose was to "remind" the recipients that hand wands, magnetometers, and other security devices were not to be "routinely" used in SSA facilities. Id. at 5 (quoting Resp. Ex. 6 at 1).
In June 2002, the Acting Director of the Atlanta Region forwarded this information to all HOCALJs and HODs in a separate memorandum that stated, in pertinent part:
SSA policy is that hand wands, magnetometers or other similar security devices may not be used routinely in any SSA field facility.
. . . .
If you wish to discuss issues specific to your office's use of security wands, magnetometers or other security devices, please contact [two named staff members].
Judge's Decision at 5 (quoting Resp. Ex. 7) (footnote omitted). [ v60 p550 ]
In October 2002, the Acting RCALJ of the Atlanta Region learned of the magnetometer in the Respondent's facility. [n2] In January 2003, the Atlanta Regional Office ordered the removal of the magnetometer, at which time it was placed in a storage area.
The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Statute by "eliminat[ing] the use of metal detectors" at the Montgomery Hearing Office "without providing the Union with notice and an opportunity to negotiate over this change to the extent required by the Statute." GC Ex. 1(c), ¶¶ 10, 11.
B. Judge's Decision
The Judge found that, before SSA issued its May 2002 memorandum, SSA did not have a policy prohibiting the use of magnetometers in hearing offices. In so finding, the Judge credited "the SSA official who is responsible for physical security," who testified that SSA "has no written policy prohibiting magnetometers." Judge's Decision at 9. The Judge also credited the testimony of the Acting RCALJ of the Atlanta Region, who stated that he first became aware of the policy prohibiting magnetometers when he received the May 2002 memorandum. The Judge discussed the language used in the memorandum and determined that it "supports the inference that magnetometers would be allowed in [h]earing [o]ffices under certain circumstances." Judge's Decision at 5.
Further, the Judge found that the testimony of the two witnesses was corroborated by the Agency's policies and directives that were issued prior to the May 2002 memorandum. In this regard, the Judge found that those pre-May 2002 documents "prove, at the most, that the Respondent was not authorized to expend funds for the installation and operation of magnetometers. They do not support the proposition that the use of magnetometers was prohibited under any circumstances and at all SSA facilities." Id. at 9.
Among the pre-May 2002 documents discussed by the Judge was a July 1996 policy memorandum (Resp. Ex. 4) regarding funding for additional security improvements. This memorandum describes the Agency's adoption of a "two-tiered approach to security in SSA offices" and lists types of security measures that each tier "includes[.]" Id. at 3. The memorandom indicated that regional management was "expected to obtain the input of [U]nion officials regarding spending priorities within the region." Id. The Judge found that, "[a]lthough magnetometers are not mentioned" in the July 1996 policy memorandum, "the use of the word `includes' leaves open the possibility that the installation of magnetometers would be authorized in at least some locations." Judge's Decision at 8. The Judge also found that there was "no evidence that this document was ever shown to a representative of the Union or that its contents were communicated to the Union." Id.
Having concluded that, before May 2002, the Respondent did not have a policy prohibiting the use of magnetometers under all circumstances, the Judge found that it was unnecessary to determine whether the presence of the magnetometer in the Montgomery Hearing Office constituted a past practice. See id. at 9 n.15. The Judge also found that the policy set forth in the May 2002 memorandum was not communicated to the Union until the magnetometer was actually removed from the entrance to the Hearing Office in January 2003. See id. at 9.
The Judge found that "the presence of the magnetometer in the Hearing Office was a condition of employment and that its removal constituted a change in the conditions of employment of bargaining unit employees." Judge's Decision at 11. In this regard, he found that both of the criteria set forth in Antilles Consol. Educ. Ass'n, 22 FLRA 235 (1986) (Antilles) for determining whether a matter affects a condition of employment had been satisfied because the removal of the magnetometer: (1) affected bargaining unit employees; and (2) directly affected employees' safety, which concerns a general condition of employment under Authority precedent. See Judge's Decision at 10-11.
The Judge also found that the removal of the magnetometer constituted the exercise of a management right and that the effect of the change was greater than de minimis. [n3] Accordingly, the Judge found that the Respondent's action without fulfilling its obligation to bargain over the impact and implementation of the change violated the Statute.
As to a remedy, the Judge determined that a status quo ante remedy was appropriate under the five factors set forth in Fed. Corr. Inst., 8 FLRA 604, 606 (1982) (FCI). [n4] Specifically, as to the fifth factor (whether and to what degree a status quo ante remedy would disrupt or impact the efficiency and effectiveness of the agency's operations), the Judge found that the Respondent had [ v60 p551 ] failed to submit any "substantive evidence that the restoration of the magnetometer to the Hearing Office, at least until the completion of bargaining, would have any effect on the efficiency or the effectiveness of the operation of the Hearing Office." Id. at 14. In this regard, the Judge rejected the Respondent's assertions that the security guard could be placed "in an awkward position" if a weapon were detected, "that the magnetometer might be subject to interference from metal objects in the vicinity and that it might interfere with access to the Hearing Office by handicapped visitors." Id. The Judge found that the detection of weapons was "squarely within the scope" of the security guard's duties, the Respondent did not present any evidence that the effectiveness of the magnetometer was impaired by its surroundings, and there was no evidence that the magnetometer blocked the passage of handicapped visitors to the Hearing Office. Id. He concluded that the evidence, taken as a whole, was "insufficient to justify a finding that the efficiency and effectiveness of the Hearing Office would be adversely affected by the return of the magnetometer to its former location." Id. at 14-15 (citing United States Dep't of Justice, INS, 55 FLRA 892, 907 (1999) (INS) (then-Member Cabaniss dissenting in part)).
The Judge further explained that the status quo ante remedy entitles the Union only to the restoration of conditions "as they existed immediately prior to the removal of the magnetometer" and "should not be construed as requiring the Respondent to arrange for a second security guard at the Hearing Office or from incurring any other expense such as for the maintenance or calibration of the magnetometer." Id. at 15. Finally, the Judge stated that the remedy is not intended to prohibit the Respondent from requiring the posting of a notice warning visitors of the possible effect of the magnetometer on pacemakers and other devices.
III. Positions of the Parties
A. Respondent's Exceptions
First, the Respondent asserts that the Judge erred in failing to find that the Agency's Office of Finance, Assessment and Management, Office of Protective Security (OFAM/OPSS) has the "sole delegated authority" to establish Agency policies and guidelines governing which security protective devices are permitted in all of the Agency's facilities. Exceptions at 13. According to the Respondent, only OPSS had the authority to determine whether the receipt of a magnetometer "would justify a deviation from the policy that magnetometers and wands are not routinely used in the hearing offices." Id. at 14.
Second, the Respondent argues that the Judge erred in finding that there was no Agency policy prohibiting the use of magnetometers and security wands in all hearing offices before May 2002. In this regard, the Respondent disputes the weight the Judge gave to testimony of the Respondent's witnesses and his findings concerning policies and directives issued before May 2002.
Third, the Respondent alleges that the Judge erred in finding that the determination of whether the Respondent failed to communicate the national security policy to the Union was relevant to the determination of whether a national policy existed.
Fourth, the Respondent argues that although the Hearing Office "obtained the magnetometer free of charge" and "intentionally failed to dedicate any funds" related to training, operation or maintenance of the magnetometer, there are nonetheless costs and expenditures associated with its use that are not authorized under the Agency's national policy. See id.
Fifth, the Respondent asserts that the Judge "erred in failing to draw the legal conclusion that the presence of the magnetometer was not a past practice[.]" Id. at 26 (emphasis omitted). In this connection, the Respondent asserts that it had a national policy barring the use of magnetometers and security wands in hearing offices and, at the national level, it was not aware that the Montgomery Hearing Office had a magnetometer and it did not acquiesce in this local exception. For these reasons, the Respondent asserts that there was no bargainable change in conditions of employment.
Finally, the Respondent asserts that the Judge erred in awarding a status quo ante remedy because such a remedy would negatively affect the efficiency and effectiveness of the Montgomery Hearing Office, as well as the Agency's national level policies and operations. In support, the Respondent argues that the Judge's remedy "is in essence requiring" the Agency to continue to allow an untrained guard to operate the magnetometer; to ignore FPS guidelines to hire a second guard; and to continue the use of "an uncalibrated, non-maintained, malfunctioning magnetometer[,]" which [ v60 p552 ] "could still cause [visitors'] medical devices to malfunction[,] which could . . . result in the death of a visitor." Id. at 29, 30.
B. GC's Opposition
As to the Respondent's assertion that the Judge erred in failing to find that OPSS has sole delegated authority to determine which security protective devices are permitted in all of the Agency's facilities, the GC asserts that this is not a material fact because the Judge found that "no national policy prohibiting magnetometers had ever been established." Opposition at 5. In any event, the GC asserts that the HOD testified without contradiction that he was responsible for security in the Hearing Office, and that his testimony is supported by the Respondent's exhibits.
Next, the GC contends that the Judge correctly concluded that no Agency policy prohibiting the use of magnetometers and security wands in hearing offices existed before May 2002. In support, the GC cites the Judge's reliance on testimony to that effect by the Respondent's own witnesses.
Third, the GC asserts that SSA's "failure to communicate its purported national policy to the Union is relevant" to the disposition of this case and asserts that the Respondent is really arguing that the Union was aware of SSA's 1996 policy setting forth the two-tiered approach to security, which the GC asserts did not expressly prohibit the use of magnetometers. Id. at 7.
In addition, the GC argues that the Respondent's assertions that "there are costs and expenditures associated with the operation and maintenance of magnetometers and security wands" are speculative and that the Respondent failed to provide any of the documentation on which it relied at the hearing. Id. at 8 (quoting Exceptions at 24). The GC also asserts that this claim is "irrelevant" because the Judge's remedy specified that conditions only needed to be restored as they existed prior to the removal of the magnetometer and does not require the Respondent to hire an additional guard or calibrate the magnetometer. Id.
The GC also asserts that, even if the Judge erred in failing to find an Agency policy in this case, a contrary past practice giving rise to a bargaining obligation was nevertheless established. In this regard, the GC asserts that "the open and undisguised use of the magnetometer in [the Montgomery Hearing Office] for two and a half years established a past practice that could not be changed without negotiation." Id. at 10. The GC notes that: (1) the magnetometer was installed with the consent of Hearing Office management; (2) SSA's regional and national managers "never bothered to check specific offices to see whether they were in compliance with any purported policy"; and (3) even after regional management became aware of the magnetometer in the Hearing Office, the practice continued for almost three months before the magnetometer was actually removed. Opposition at 12.
Finally, the GC asserts that the Judge correctly ordered a status quo ante remedy and notes that the Respondent excepts only to the fifth FCI factor -- whether a status quo ante remedy would disrupt or impair the efficiency or effectiveness of the Agency. The GC argues that the Respondent's argument is based on "pure speculation." Id. at 13. The GC also asserts that the Judge correctly relied on INS, 55 FLRA 892, in addressing this factor and that the Respondent has not attempted to distinguish this decision in its exceptions.
IV. Analysis and Conclusions
A. The Judge correctly found that the Respondent violated the Statute by failing to bargain over the impact and implementation of the removal of the magnetometer.
The complaint alleges that the Respondent violated the Statute by failing to provide the Union notice and an opportunity to bargain over its decision to eliminate the use of metal detectors at the Respondent's facility. In order to determine whether the Respondent violated the Statute, there must be a threshold finding that the Respondent changed employees' conditions of employment. See, e.g., United States Dep't of Labor, OSHA, Region 1, Boston, Mass., 58 FLRA 213, 215 (2002); United States INS, Houston Dist., Houston, Tex., 50 FLRA 140, 143 (1995) (INS Houston). The determination of whether a change in conditions of employment has occurred involves a case-by-case analysis and an inquiry into the facts and circumstances regarding the respondent's conduct and employees' conditions of employment. See, e.g., 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995); INS Houston, 50 FLRA at 144.
The Respondent's exceptions regarding the Judge's finding of a violation of the Statute set forth essentially two arguments: (1) the Judge erred in finding that SSA did not have a nationwide policy before May 2002 prohibiting the use of magnetometers and security wands in hearing offices and other SSA facilities; and (2) the Judge erred in failing to find that the presence of the magnetometer in the Montgomery Hearing Office did not constitute a past practice. [ v60 p553 ]
1. The Judge did not err in finding that there was no policy prohibiting the use of magnetometers prior to May 2002.
When reviewing a judge's factual findings, the Authority reviews the record to determine whether those factual findings are supported by substantial evidence in the record as a whole. See, e.g., United States Dep't of Transp., 48 FLRA 1211, 1215 (1993). As more fully explained below, we find that the Judge's conclusion, that there was no policy prior to May 2002 prohibiting the use of magnetometers in hearing offices, is supported by substantial evidence in the record as a whole.
The record reveals that two of the Respondent's own witnesses presented consistent testimony that the Agency did not have a national policy prior to May 2002. In this connection, and as noted by the Judge, "the SSA official who is responsible for physical security" testified that "SSA has no written policy prohibiting magnetometers." Judge's Decision at 9; see also Tr. at 67. The Judge also "attached considerable weight" to the testimony of the Acting RCALJ of the Atlanta Region, who testified that "he first became aware of the OHA policy prohibiting magnetometers" upon receipt of the May 2002 memorandum. Id.; see also Tr. at 129-30. With regard to the first witness, the Respondent asserts that the Judge "ignored" portions of his testimony. Exceptions at 15. In support, the Respondent cites the witness's testimony that magnetometers are not "an authorized expenditure" and SSA's policy with regard to magnetometers in hearing offices is that "they are unnecessary because of the other physical security devices and systems that are put in place in those individual offices." Id. at 16-17 (quoting Tr. at 67, 48).
As noted by the Judge, both of the witnesses on whom he relied testified "for the Respondent" and "[s]urely," both were in positions such that they "would have been aware if such a policy had been in place." Id. In this regard, it is undisputed that the first witness is "the SSA official" who "has responsibility for the physical security of the various SSA offices throughout the country." Id. at 9, 8. It is similarly undisputed that the second witness was the Acting RCALJ of the Atlanta Region, whose duties entail "administering all of the [Atlanta] [R]egion[,]" which includes "eight states, 31 offices, approximately 250 judges [and] 1,900 different employees." Tr. at 124. Accordingly, these individuals were in a position to know the policy on magnetometers.
The statements by the first witness, which the Respondent alleges the Judge ignored, fail to establish that, prior to May 2002, there existed a national policy prohibiting the use of magnetometers in hearing offices. At most, the statements could support a conclusion that hearing offices were not authorized to expend funds to acquire magnetometers and that the national office believed magnetometers were unnecessary in hearing offices. [n5] These statements do not prove the existence of a national policy prohibiting the use of magnetometers. Moreover, the statements do not contradict the witness's expert testimony that "[t]here is no written document . . . that has been issued that says magnetometers are not be used" in hearing offices. Tr. at 67.
The Judge further found that the testimony of these witnesses was "corroborated by the contents of the policies and directives which were issued" prior to May 2002. Judge's Decision at 9. According to the Judge, "[t]hose documents prove, at the most, that the Respondent was not authorized to expend funds for the installation and operation of magnetometers. They do not support the proposition that the use of magnetometers was prohibited under any circumstances and at all [of the Agency's] facilities." Id. (footnote omitted). The Respondent disputes the Judge's findings with regard to these documents, specifically with regard to the July 1996 policy memorandum. See Respondent Ex. 4. As noted above, this memorandum describes the Agency's adoption of a "two-tiered approach to security in SSA offices" and lists the types of security measures that are "include[d]" in each tier. Id. at 3. The Judge found that, "[a]lthough magnetometers are not mentioned" in the July 1996 policy memorandum, "the use of the word `includes' leaves open the possibility that the installation of magnetometers would be authorized in at least some locations." Judge's Decision at 8.
The Judge's findings with regard to the policies and directives issued prior to May 2002 are also supported by substantial record evidence. In this regard, the Respondent has presented no evidence to establish that the July 1996 memorandum prohibits the use of magnetometers in the Montgomery Hearing Office.
Accordingly, based on the record as a whole, the Judge's conclusion that there was no policy, prior to May 2002, prohibiting the use of magnetometers is supported by substantial record evidence. As such, we deny the Respondent's exception. [n6] [ v60 p554 ]
2. The presence of the magnetometer constituted a past practice in the Montgomery Hearing Office.
The lack of a national policy prohibiting magnetometers does not establish that the presence of the magnetometer in the Montgomery Hearing Office was a condition of employment and, therefore, does not resolve the issue of whether the Respondent was required to bargain over the magnetometer's removal. If the unchallenged presence of the magnetometer in the Montgomery Hearing Office over a significant period of time, with the knowledge of responsible management, constituted a past practice, such practice establishes a condition of employment and could only be changed if the Respondent provided notice and an opportunity to bargain to the Union. Accordingly, the Judge erred in failing to determine whether the presence of the magnetometer in the Hearing Office was a past practice.
In order to establish a condition of employment by past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. See, e.g., United States Dep't of Homeland Sec., Border & Transp. Directorate, Bureau of Customs & Border Prot., 59 FLRA 910, 914 (2004) (DHS) and cases cited therein. "Essential factors in finding that a past practice exists are that the practice must be known to management, responsible management must knowingly acquiesce in the practice, and the practice must continue for a significant period of time." See DHS, 59 FLRA at 914 (citation omitted).
In the present case, it is undisputed that the magnetometer was used in the Montgomery Hearing Office with the explicit knowledge and consent of Hearing Office management from August 2000 until its removal in January 2003. As the Judge found in this regard, the Hearing Office Chief Administrative Law Judge, who "is in overall charge of the facility" and reports directly to the Atlanta Regional Chief Administrative Law Judge, accepted the magnetometer and an accompanying hand wand. Judge's Decision at 2. The HOD, who is a member of the HOCALJ's management staff, also testified that he participated in and was aware of the decision to accept the magnetometer. See Tr. at 161. As such, the continuous use of the magnetometer for almost two and a half years, with the knowledge of Hearing Office management, demonstrates that the practice was consistently exercised over a significant period of time and followed by both parties.
The Respondent asserts that a past practice was not established because the Agency's national office was not aware that the Hearing Office had a magnetometer and did not acquiesce in this local exception. We reject this argument. The Judge's finding that the HOCALJ "is in overall charge of the facility" supports a finding that the HOCALJ is responsible for the management of the Hearing Office. Judge's Decision at 2. In this regard, the HOCALJ testified that when he takes an action, he is acting as an agent on behalf of the Agency. See Tr. at 150. In addition, the "open exercise" of a practice, in a location "where representatives of higher management might appear at any time, supports the inference of acquiescence." Def. Distrib., Region West, Tracy, Cal., 43 FLRA 1539, 1561 (1992). Accordingly, management was aware of the practice; responsible management knowingly acquiesced in the practice; and the practice continued for a significant period of time.
In these circumstances, the Hearing Office could not, without first fulfilling its duty to bargain, unilaterally remove the magnetometer. See SSA Region II, 38 FLRA at 198. By removing the magnetometer from the Hearing Office in January 2003 without giving the Union prior notice and an opportunity to bargain over the impact and implementation of the removal, the Respondent violated the Statute.
B. The Judge did not err in awarding status quo ante relief.
The Respondent excepts only to the Judge's application of the fifth FCI factor -- whether and to what degree a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. In this regard, the Respondent asserts that status quo ante relief would negatively affect the efficiency and effectiveness of the Hearing Office, as well as the Agency's national level policies and operations. In support, the Respondent argues that the Judge's remedy "is in essence requiring" the Respondent to continue to allow an untrained guard to operate the magnetometer; to ignore FPS guidelines to hire a second guard; and to continue the use of "an uncalibrated, non-maintained, malfunctioning magnetometer[,]" which could cause visitors' medical devices to malfunction or death. Id. at 29-30. [ v60 p555 ]
In finding that a status quo ante remedy would not disrupt the efficiency and effectiveness of the Hearing Office, the Judge found that the Respondent had "submitted no substantive evidence that the restoration of the magnetometer to the Hearing Office, at least until the completion of bargaining, would have any effect on the efficiency or the effectiveness of the operation of the Hearing Office." Judge's Decision at 14. In this connection, the Judge rejected the Respondent's assertion that the security guard could be placed "in an awkward position" if a weapon were detected, finding that the detection of weapons was "squarely within the scope" of the security guard's duties. Id. The Judge also rejected the Respondent's claim that "the magnetometer might be subject to interference from metal objects in the vicinity" because the Respondent did not present any evidence that the effectiveness of the magnetometer was impaired by its surroundings Id. Similarly, the Judge rejected the Respondent's assertion that the magnetometer "might interfere with access to the Hearing Office by handicapped visitors" because there was no evidence that the magnetometer blocked the passage of handicapped visitors to the Hearing Office. Id. Accordingly, the Judge concluded that the evidence, taken as a whole, was "insufficient to justify a finding that the efficiency and effectiveness of the Hearing Office would be adversely affected by the return of the magnetometer to its former location." Id. at 14-15 (citing INS, 55 FLRA at 907).
The Authority requires that a conclusion that a status quo ante remedy would be disruptive to the operations of an agency "be based on record evidence." INS, 55 FLRA at 906 (citing Army & Air Force Exch. Serv., Waco Distrib. Ctr., Waco, Tex., 53 FLRA 749, 763 (1997)). The Respondent does not dispute the Judge's factual findings. Rather, in support of its exception, the Respondent relies on facts that were not found by the Judge, for which it has offered no documentary support, and that are not supported by record evidence. In this regard, the Respondent has failed to present record evidence which support its assertions related to the guard's lack of training, FPS guidelines, and the potential malfunction of visitors' medical devices. Accordingly, the Respondent's "unsupported assertions" are not sufficient to establish that a status quo ante remedy is not appropriate and there is no reason to deny the Judge's recommended remedy. INS, 55 FLRA at 907. Cf. United States Dep't of Def., Def. Commissary Agency, Northeast Region, Groton, Conn., 59 FLRA 472, 474 (2003) (The Authority reversed the judge's denial of status quo ante relief where the respondent had "not demonstrated through record evidence" its argument with respect to the safety and health risks attendant to cashiers' use of stools and presented "no evidence concerning the extent of the impact on cashiers resulting from a return to the status quo.").
Moreover, the nature of the Judge's recommended remedy is limited in scope in that it only requires the Respondent to restore the conditions that existed prior to the removal of the magnetometer until the parties complete bargaining over the impact and implementation of the removal. The Respondent is not required to spend any additional funds or hire any additional staff. Furthermore, the Respondent is not prevented from removing the magnetometer; it may do so as long as it meets its bargaining obligation.
Accordingly, we deny the Respondent's exception.
V. Order
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration Office of Hearings and Appeals, Montgomery, Alabama shall:
1. Cease and desist from:
(a) Implementing changes in the use of magnetometers and hand held wands at the Montgomery, Alabama Hearing office without providing advance notice to the American Federation of Government Employees, Local 3627 (Union), and affording the Union the opportunity to bargain over the impact and implementation of the proposed changes.
(b) In any like or related matter, interfering with, restraining or coercing its bargaining unit 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) Restore the use of the magnetometer and hand held wand to the Montgomery, Alabama Hearing Office under the same terms and conditions as existed immediately prior to its removal.
(b) Notify and, upon request, bargain over impact and implementation with the Union prior to effecting any changes in the use of the magnetometer and hand held wand at the Montgomery, Alabama Hearing Office.
(c) Post the attached Notice for 60 days at the Montgomery, Alabama Hearing Office on forms to be furnished by the Authority. The Notice is to be [ v60 p556 ] signed by the Regional Chief Administrative Law Judge of the Atlanta Region of the Office of Hearings and Appeals and is to be posted at all locations in the Montgomery, Alabama Hearing Office where employees represented by the Union are assigned, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.
(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Social Security Administration, Office of Hearing and Appeals, Montgomery, Alabama has violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY EMPLOYEES THAT:
WE WILL NOT implement changes in the use of magnetometers and hand held wands at the Montgomery, Alabama Hearing office without providing advance notice to the American Federation of Government Employees, Local 3627 (Union), and affording the Union the opportunity to bargain over the impact and implementation of the proposed changes.
WE WILL NOT, in any like or related matter, interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured by the Statute.
WE WILL restore the use of the magnetometer and hand held wand to the Montgomery, Alabama Hearing Office under the same terms and conditions as existed immediately prior to its removal.
WE WILL notify and, upon request, bargain over impact and implementation with the Union prior to effecting any changes in the use of the magnetometer and hand held wand at the Montgomery, Alabama Hearing Office.
______________________
(Respondent/Agency)
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, Atlanta Region, Marquis Two Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, GA 30303-1270 and whose telephone number is: (404) 331-5212.
File 1: Authority's Decision in 60
FLRA No.
111
File 2: ALJ's Decision
Footnote # 1 for 60 FLRA No. 111 - Authority's Decision
This case involves different components within the Social Security Administration (SSA or the Agency). At the national level, these include SSA's national headquarters in Baltimore, Maryland and the national Office of Hearing and Appeals (OHA) in Falls Church, Virginia. OHA contains several regional hearing offices, including the Atlanta Regional Office. The Montgomery, Alabama Hearing Office (Montgomery Hearing Office or Respondent) reports directly to the Atlanta Regional Office.
Footnote # 2 for 60 FLRA No. 111 - Authority's Decision
The Acting RCALJ of the Atlanta Region learned of the magnetometer as the result of an unfair labor practice (ULP) charge that was filed by a different union and involved a different hearing office.
Footnote # 3 for 60 FLRA No. 111 - Authority's Decision
The parties do not except to either of these findings and they will not be discussed further.
Footnote # 4 for 60 FLRA No. 111 - Authority's Decision
The FCI factors are: (1) whether and when notice was given to the union by the agency concerning the change; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligation; (4) the nature and extent of the adverse impact on unit employees; and (5) whether and to what degree a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. See United States Dep't of Justice, INS, Wash., D.C., 56 FLRA 351, 353 n.7 (2000) (citing FCI, 8 FLRA at 606).
Footnote # 5 for 60 FLRA No. 111 - Authority's Decision
In this regard, we note that there is no record evidence to support a finding that the Respondent spent any funds to either acquire or maintain the magnetometer in the Montgomery Hearing Office.
Footnote # 6 for 60 FLRA No. 111 - Authority's Decision
The Respondent also asserts that the Judge erred in failing to find that OFAM/OPSS had sole, delegated authority to develop agency security policy and to determine whether deviations from that policy were authorized. However, having found, in agreement with the Judge, that there was no national policy prohibiting the use of magnetometers in hearing offices prior to May 2002, we find that it is not necessary to address the Respondent's assertion because, in the absence of such a national policy, determining who had authority to issue it or deviate from it is irrelevant.