SOCIAL SECURITY ADMINISTRATION MALDEN DISTRICT OFFICE MALDEN, MASSACHUSETTS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1164 (2024)

UNITED STATES OF AMERICA

FEDERAL LABORRELATIONS AUTHORITY

Office of Administrative LawJudges

WASHINGTON, D.C. 20424-0001

SOCIAL SECURITYADMINISTRATION

MALDEN DISTRICT OFFICE

MALDEN, MASSACHUSETTS

Respondent

and

AMERICAN FEDERATION OFGOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL1164

ChargingParty

Case No. BN-CA-50227

NOTICE OF TRANSMITTAL OFDECISION

The above-entitled case having beenheard before the undersigned Administrative Law Judge pursuant tothe Statute and the Rules and Regulations of the Authority, theunder-signed herein serves his Decision, a copy of which isattached hereto, on all parties to the proceeding on this date andthis case is hereby transferred to the Federal Labor RelationsAuthority pursuant to 5 C.F.R. § 2423.26(b).

PLEASE BE ADVISED that the filingof exceptions to the attached Decision is governed by 5 C.F.R. §§2423.26(c) through 2423.29, 2429.21 through 2429.25 and2429.27.

Any such exceptions must be filedon or before SEPTEMBER 3,1996, and addressed to:

Federal Labor RelationsAuthority

Office of Case Control

607 14th Street, NW, 4thFloor

Washington, DC 20424-0001

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: August 2, 1996

Washington, DC

UNITED STATES OFAMERICA

FEDERAL LABORRELATIONS AUTHORITY

Office of Administrative LawJudges

WASHINGTON, D.C. 20424-0001

MEMORANDUM DATE: August 2,1996

TO: The Federal Labor RelationsAuthority

FROM: WILLIAM B. DEVANEY

Administrative LawJudge

SUBJECT: SOCIAL SECURITY ADMINISTRATION

MALDEN DISTRICT OFFICE

MALDEN, MASSACHUSETTS

Respondent

and Case No.BN-CA-50227

AMERICAN FEDERATION OFGOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL1164

Charging Party

Pursuant to section 2423.26(b) ofthe Rules and Regulations, 5 C.F.R. § 2423.26(b), I am herebytransferring the above case to the Authority. Enclosed are copiesof my Decision, the service sheet, and the transmittal form sent tothe parties. Also enclosed are the transcript, exhibits and anybriefs filed by the parties.

Enclosures

UNITEDSTATES OF AMERICA

FEDERAL LABOR RELATIONSAUTHORITY

OFFICE OF ADMINISTRATIVE LAWJUDGES

WASHINGTON, D.C. 20424-0001

SOCIAL SECURITYADMINISTRATION

MALDEN DISTRICT OFFICE

MALDEN, MASSACHUSETTS

Respondent

and

AMERICAN FEDERATION OFGOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL1164

ChargingParty

Case No. BN-CA-50227

Mr. John J. Barrett

Mr. Lawrence Kelly

For theRespondent

Linda I. Bauer, Esquire

For the GeneralCounsel

Before: WILLIAM B.DEVANEY

Administrative LawJudge

DECISION

Statement of the Case

This proceeding, under the FederalService Labor-Management Relations Statute, Chapter 71 of Title 5of the United States Code, 5 U.S.C. § 7101, et seq. 900068248,and the Rules and Regulations issued thereunder, 5 C.F.R. §2423.1, etseq., concernswhether: a) the assignment to Claims Representatives of the dutiesof "associating" medical folders with non-medical folders, loggingin messages received over the wire and mailing claims to thepayment center was more than a deminimis change of their conditions ofemployment; and/or b) had the parties already bargained on theimpact and implemen-tation of the reassignment of duties to ClaimRepresentatives?

This case was initiated by a chargefiled on January 10, 1995 (G.C. Exh. A), which alleged violationsof §§ 16(a)(1), (5) and (8) of the Statute. The Complaint andNotice of Hearing issued June 30, 1995 (G.C. Exh. C, Attachment)but alleged violation only of §§ 16(a)(5) and (1) of theStatute604117724,and set the hearing for September 7, 1995. By Order dated August29, 1995 (G.C. Exh. E), the joint motion of Respondent and GeneralCounsel to reschedule the hearing for November 13, 1995 (G.C. Exh.D), was granted and, pursuant thereto a hearing was duly held onNovember 13, 1995, in Boston, Massachusetts, before theundersigned; however, the hearing was not completed on November 13,and, because of the budget problem, was continued indefinitely. ByOrder dated November 21, 1995, the resumption of the hearing wasrescheduled for January 9, 1996; but by Order dated January 5,1996, on motion of the General Counsel, because of the continuingFederal Budget impasse, was postponed indefinitely. By Order datedFebruary 16, 1996, resumption of the hearing was scheduled forMarch 5, 1996, pursuant to which the hearing was duly resumed onMarch 5, 1996, in Boston, Massachusetts, before the undersigned. All parties were represented at the hearing, were afforded fullopportunity to be heard, to introduce evidence bearing on theissues involved, and were afforded the opportunity to present oralargument which each party waived. At the conclusion of thehearing, April 5, 1996, was fixed as the date for mailingpost-hearing briefs and Respondent and General Counsel each timelymailed an excellent brief received on April 9, 1996, which havebeen carefully considered; however the transcript of the March 5,1996, hearing was not received by this Office until June 18, 1996. Upon the basis of the entire record944664903,including my observation of the witnesses and their demeanor, Imake the following findings and conclusions:

Findings

1. The technology for the handlingof Social Security claims has changed markedly in the last 20years. In the mid to late 1970s, a Claim Representativeinterviewed claimants and entered the information on a paper claimform. This form would then go to a Data Review Technician (DRT),who did some coding, and then typed (keyed) the information intothe main computer in Baltimore (Tr. II, 5). In 1985, a claimsmoderni-zation project called, Field Office Systems Enhancement(FOSE), was begun whereby, interalia, Claims Representatives were givendirect computer access and, instead of entering information on apaper form, the Claims Representatives keyed the information intothe main computer as the claimant was interviewed(Tr. II, 7). As most ofthe duties of the DRTs had been eliminated, the position of DRT wasphased out (Tr. I,p. 101). The last DRT in the Malden District Office, Ms. DianaHenderson, was re-trained to be a Service Represen-tatives eitherin December, 1993 or January, 1994 (Tr.I, 102). As a DRT, Ms. Henderson's dutiesincluded, interalia, the disputedwork in this case, namely logging in folders received from theMassachusetts Disability Determination Services; logging in CCmessages; and mailing claims to the payment center (Tr. I, 27, 64,70). When Ms. Henderson was upgraded to a Service Representative,the disputed work was taken over by the operations supervisors (Tr.I, 64, 80, 108, 117).

2. Service Representatives (SRs)act as receptionists to greet the public; they process allapplications for Social Security numbers; and they handle allmaintenance issues after benefits have been granted, such asmissing checks, changes of address, direct deposit,etc. (Tr. I, 9-10; Tr.II. 95).

3. Claims Representatives (CRs)interview claimants as they appear; but some method of distributionof follow-up work, after the initial interview, is necessary. Respondent had used an alphabetic method, whereby each CR wasassigned certain letters of the alphabet and would do all follow-upwork for claimants whose last name began with the letters assignedto that CR. Another method, which Respondent proposed in April,1994, as discussed more fully hereinafter, is "Keep What You Take"(KWYT), whereby each CR does the follow-up work on the claimantsthe CR initially interviewed.

4. On April 21, 1994, Respondentmade two proposed changes: one dealing with implementation,inter alia, of KWYT (G.C. Exh. 2) and theother dealing with the re-assignment of duties (G.C. Exh. 3). There-assignment of duties proposal, in relevant part, was:

SRs: distribute mail; input suchitems as DOWR [District Office Work Report, Tr. I, 70];associate medical folders returned from the Massachusetts Disability DeterminationService (DDS)

CRs: assemble the file andcompleting all necessaryactions; mail file to Payment Center orfile denials in closed files (G.C. Exh. 3).

Ms. Deborah Haggett, a steward forthe Union and, with Mr. William Ross, area Vice President for AreaTwo of AFGE, Local 1164, one of the Union's negotiators (Tr. II,18), testified that despite differences in terminology,Respondent's assignment of duties to CRs included: logging in thereceipt of medical folders and logging in CC messages (Tr. I, 88). Ms. Haggett also testified that Respondent had consulted with theUnion in December, 1993, about the changes it intended and that atthat time Respondent was proposing that all of the duties set forth above asassigned to SRs be assigned to CRs; that the Union, as acounterproposal, suggested that SRs input the DOWR andassociate medical folders returned by DDS with non-medical folders; and that Respondenthad, accordingly, included this proposal in its April 21, 1994,formal proposal (Tr. II, 82).

5. The parties negotiated, withthe assistance of Federal Mediation and Conciliation, and agreedupon most items in dispute (G.C. Exh. 4C); but could not agree onproposed Memorandum of Understanding, Article II, Section 3 A-E(G.C. Exh. 4E). The Union had withdrawn its December, 1993,proposal that SRs associate medical folders returned from DDS withnon-medical folders and, in formal negotiations, proposed that: SRs only input DOWR and control TPQY cards (id., Section 3A); and thatassociation and assembly of medical and non-medical files, loggingin of CC messages, etc.now performed by supervisors, continue to beperformed by supervisors (id.Section B). The Union sought the assistance ofthe Federal Service Impasses Panel (G.C. Exh. 4A, 4B) (FSIP). Byletter dated October 28, 1994, FSIP declined to assert jurisdictionbecause, ". . . our investigation reveals that the Employer hasraised questions concerning its obligation to bargain with respectto . . . (1) the reassign-ment of duties which were formerlyperformed by the Data Review Technician . . . Such questionsconcerning the obliga-tion to bargain must be resolved in anappropriate forum before a determination can be made as to whetherthe parties have, in fact, reached a negotiation impasse." (G.C.Exh. 8).

6. By letter dated November 4,1994, the Union stated, in part,

". . . The Union will be referringthese threshold questions to the appropriate forum in the requiredtime frame. . . ." (G.C. Exh. 9).

But the Union did nothingfurther.

7. On January 6, 1995, Respondentinformed the Union (Tr. I, 96) and the staff that,

"Effective January 9, 1995 ClaimsRepresentatives will be responsible for logging in folders receivedfrom DDS and associating them with the non-medicals.

"Also, the Claims Representativewill be responsible for logging in the CC messages received overthe wire and mailing out the claims.

"An Operations Supervisor willcontinue to log in the WMS completed claims, retrieve them from theholding drawer and mail them. (G.C. Exh. 10).

8. By letter, also dated January6, 1995, the Union exercised, ". . . the right to consult/negotiateon the 'impact and implementation' of the proposed changes" anddemanded that no change be made until consultation/negotia-tionswere completed (G.C. Exh. 11).

9. Respondent unilaterallyimplemented the changes set forth in its letter of January 6, 1995,on January 9, 1995.

CONCLUSIONS

A. Changewas more than de minimis.

By assigning new and additionalduties to its CRs, Respondent changed their condition ofemployment. Despite Respondent's assertion (Respondent's Brief, p.8), it can not be said that the disputed duties were "inherentlythe duties of claims representatives" because CRs never performedthem before January 9, 1995. To the contrary, it is agreed thatthese duties had been performed by DRTs; and when the position ofDRT had been phased out, these duties had been taken over bysupervisors.

The distinction between"associating" and "assembling" is debatable; but, apparently,"associating" means going to the file drawer, where the non-medicalfolders are filed in alphabetical order, and getting the folder forthe claimant for whom the DDS has made its disability determinationand putting them together. "Assembly", means putting a copy of thedisability determination in the Supplemental Security Income (SSI)file, if there is an SSI claim, and putting the two files in amulti-pocket folder (Tr. II, 65-66, 74, 84). If the claim weredenied by DDS, the entire folder would be placed in the closedfiles; and if the claim were allowed by DDS, the file is sent tothe payment center for payment (Tr. II, 83-84). In addition, theCR had to call up the claimant's computer record and record thereceipt of the DDS file; and, also, enter on the computer recordsall CC messages received. While describing "associating" and"assembling" probably takes longer than to do it (Tr. II, 66), itis necessary to go to the file cabinets, find the proper file, dothe required association and assembly, send the file to the paymentcenter, or put it in the closed files, log onto the computer torecord receipt of the DDS file and record any CC messages, all ofwhich requires time. Ms. Maureen T. Kelly, operations supervisorat Malden, stated that it would take, per case, "No more than 10minutes, 5 minutes." (Tr. II, 67) and Ms. Haggett said, ". . .seven, eight minutes, maybe ten . . . ." (Tr. II, 85). With 12-14CRs who do disability cases (Tr. II, p. 70) and an average of about10 folders from DDS per day, obviously distribution of thedisability folders to the CR who handled theclaim1426670145 would mean, on the average, that no CR would have more thanone or two per day. But whether 5 minutes, or 10 minutes, orlonger, performance of the additional duties, which involved avariety of functions, involve significant duties requiringsignificant time. To determine whether a change has more thana de minimis impact, the Authority examines the totality of the facts andcircum-stances in each case, Department ofHealth and Human Services, Social Security Administration, RegionV, Chicago, Illinois, 19 FLRA 827(1985); Department of Health and HumanServices, Social Security Administration,24 FLRA 403 (1986); Department of Healthand Human Services, Family SupportAdministration, 30 FLRA 346 (1987);U.S. Department of Health and Human Services,Social Security Administration, Baltimore, Maryland and Hartford,Connecticut, 41 FLRA 1309 (1991). Here,the change affected all CRs who handle disability claims (all CRsexcept one (Tr. II, 70)); was to be permanent; and, as noted, addedduties to the work of the CRs. While the change in duties wasslight it was more than de minimis.

B. ChangeNot Previously Bargained.

This case had a somewhat tortuouscourse. Initially, in its consultation with the Union, Respondentindicated its intention to assign all disputed work to CRs. TheUnion, as a counterproposal, suggested that SRs associate themedical folders received from DDS with non-medical folders andRespondent adopted this suggestion in its April 21, 1994, proposal;however, by then, the Union had backed away from its proposal andasserted, notwithstanding the unqualified management right, "toassign work" (§ 6(a)(2)(B)), that the assignment of work wasnegotiable. The parties did negotiate, did evoke the assistance ofFederal Mediation, and the Union sought the assistant of FSIP,which, after investigation, declined jurisdiction. But, strangely,on January 6, 1995, when Respondent gave notice of its intent toimplement the reassignment of duties it did not propose toimplement its April 21, 1994, proposal, on which the parties hadnegotiated, but a different proposal, on which the parties had notnegotiated. The Union on January 6, 1995, upon receipt ofRespondent's notice demanded to bargain on the impact andimplementation of the change and demanded that no change be madeuntil negotiations were completed. Respondent, instead,unilaterally implemented the change on January 9, 1995, and therebyviolated §§ 16(a)(5) and (1) of the Statute.

Having found that Respondentviolated §§ 16(a)(5) and (1) of the Statute, it is recommended thatthe Authority adopt the following:

ORDER

Pursuant to § 2423.29 of theAuthority's Rules and Regulations, 5 C.F.R. § 2423.29, and § 18 ofthe Statute, 5 U.S.C. § 7118, it is hereby ordered that the SocialSecurity District Office, Malden, Massachusetts, shall:

1. Cease and desistfrom:

a) Changing conditions ofemployment of bargaining unit employees by reassigning duties,performed by supervisors and previously performed by Data ReviewTechnicians, to Claims Representatives without first notifyingAmerican Federation of Government Employees, AFL-CIO, Local 1164(hereinafter, "Union") the exclusive representative of itsemployees, and affording it an opportunity to bargain regarding theprocedures to be observed and appropriate arrangement for employeeswho have been, or may be, adversely affected by the implementationof any such change.

b) In any like or related mannerinterfering with, restraining, or coercing its employees in theexercise of their rights assured them by the Statute.

2. Take the following affirmativeaction in order to effectuate the purpose and policies of theStatute:

a) Restore thestatus quo ante byforthwith rescinding and withdrawing its January 9, 1995,assignment to Claims Representatives responsibility for: loggingin folders received from DDS and associating them with thenon-medicals; logging in the CC messages received over the wire andmailing out the claims.

b) Notify the Union of anyproposed reassignment to Claims Representatives, or to any otherbargaining unit employee, of duties and, upon request, bargain withthe Union as to the procedures to be observed in implementing suchwork reassignment and appropriate arrangement for employeesadversely affected thereby.

c) Post at its facilities at theDistrict Office, Malden, Massachusetts, copies of the attachedNotice on forms to be furnished by the Federal Labor RelationsAuthority. Upon receipt of such forms, they shall be signed by theDistrict Manager and shall be posted and maintained for 60consecutive days thereafter, in conspicuous places, including allbulletin boards and other places where notices to employees arecustomarily posted. Reasonable steps shall be taken to ensure thatsuch Notices are not altered, defaced, or covered by any othermaterial.

d) Pursuant to § 2423.30, of theAuthority's Rules and Regulations, 5 C.F.R. § 2423.30, notify theRegional Director of the Boston Region, Federal Labor RelationsAuthority, 99 Summer Street, Suite 1500, Boston, Massachusetts02110-1200, in writing, within 30 days from the date of this Order,as to what steps have been taken to comply herewith.

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: August 2, 1996

Washington, DC

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONSAUTHORITY

The Federal Labor RelationsAuthority has found that the Social Security District Office,Malden, Massachusetts, violated the Federal ServiceLabor-Management Relations Statute and has ordered us to post andabide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEESTHAT:

WE WILL NOT change workingconditions of unit employees by reassigning duties to ClaimRepresentatives without first notifying American Federation ofGovernment Employees, AFL-CIO, Local 1164 (hereinafter, "Union"),the exclusive representative of our employees, and affording it anopportunity to bargain regarding the procedure to be observed andappropriate arrangement for employees who are adversely affected bythe implementation of any such change.

WE WILL NOT in any like or relatedmanner interfere with, restrain or coerce our employees in theexercise of their rights assured them by the Federal ServiceLabor-Management Relations Statute.

WE WILL restore the status quo anteby herewith rescinding and withdrawing our January 9, 1995,assignment to Claims Representatives responsibility for: loggingin folders received from DDS and associating them with thenon-medicals; logging in CC messages received over the wire andmailing out the claims.

WE WILL NOTIFY the Union of anyproposed reassignment of duties which would affect bargaining unitemployees' working conditions and, upon request, bargain with theUnion as to the procedures to be observed and appropriatearrangements for employees adversely affected by implementation ofany such charge.

(Activity)

Date: By:

(Signature) (Title)

This Notice must remain posted for60 consecutive days from the date of posting and must not bealtered, defaced or covered by any other material.

If employees have any questionsconcerning this Notice or compliance with any of its provisions,they may communicate directly with the Regional Director, BostonRegional Office, Federal Labor Relations Authority, whose addressis: 99 Summer Street, Suite 1500, Boston Massachusetts 02110-1200,and whose telephone number is: (617) 424-5730.

APPENDIX

Corrections ToTranscript

BN-CA-50227