Social Security Administration and AFGE Local 1923 (Authority decision, September 11, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Social Security Administration distributed an integrity and security questionnaire to employees. AFGE alleged that the agency bypassed the union and should have bargained over how it collected the information. The Authority found no effort to deal directly with employees about their conditions of employment or to undermine the union. It dismissed the complaint.

Decision snapshot

• Authority: Unfair labor practice provisions of 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Bypass and bargaining allegations rejected; complaint dismissed.
• Key point: Distributing the questionnaire did not itself amount to bargaining directly with employees.

Full text (FLRA public release)

[ v20 p125 ]

20:0125(14)CA

The decision of the Authority follows:

20 FLRA No. 14

SOCIAL SECURITY ADMINISTRATION
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Charging Party

Case No. 3-CA-40552

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the contentions of the parties, the Authority finds:

The complaint alleges that the Social Security Administration (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by bypassing the American Federation of Government Employees, Local 1923, AFL-CIO (AFGE), the employees' exclusive representative, when, during March 1984, it distributed to bargaining unit employees an "Integrity and Security Awareness Feedback Questionnaire" (herein the questionnaire) as part of an internal agency bulletin entitled "Integrity and Security Awareness Bulletin." The complaint further alleged that such conduct constituted a failure and refusal to negotiate the manner in which information would be obtained from bargaining unit employees and the impact and implementation of the Respondent's decision to gather the information.

The parties stipulated that, during March 1984, the Respondent distributed the questionnaire to all personnel assigned to the Respondent's Office of Disability Operations (ODO) without prior notice to AFGE. The record shows that, in an August 1983 Integrity and Security Awareness Bulletin, which contained exactly the same questionnaire as is in question here, it was explained that the Respondent's Integrity Staff, which is responsible for distributing both questionnaires, "was established in October 1981 to detect fraud and abuse in the disability program by beneficiaries and employees and to provide the necessary security for the protection of personnel and the system of records. To accomplish this objective, the Integrity Staff monitors the disability operation by conducting payment audits, administrative audits, systems audits, program and facilities audits." The expressed purpose of the internal agency bulletins was "to expand the scope and dimension of these audit programs by alerting all ODO personnel to security matters and the potential avenues of fraud and abuse." The questionnaire itself stated that it was "being provided so that ODO employees and managers may assist the Integrity Staff in ensuring that integrity in the Social Security program is maintained," and requested employees to "identify procedures, systems and practices that are vulnerable to fraud and abuse and list below." The questionnaire, which did not request or require employees to identify themselves, contained three questions, as follows:

1. Are there any areas of your operation which you think may
   be susceptible to fraudulent practices by either beneficiaries and/or employees?

2. Are there any abusive practices and/or procedures regarding
   overtime, time and leave or other related areas now taking place in your location?

3. Other comments:

The parties further stipulated that any response to the questionnaire was unknown.

In Internal Revenue Service (District, Region, National Office Units), 19 FLRA No. 48(1985), the Authority, in considering whether the agency's conduct therein in distributing questionnaires to unit employees constituted an unlawful bypass of the exclusive representative, stated:

(A)s part of its overall management responsibility to conduct operations in an effective and efficient manner, an agency may question employees directly provided that it does not do so in a way which amounts to attempting to negotiate directly with its employees concerning matters which are properly bargainable with its employees' exclusive representative. In this regard, as the Authority has previously noted, management must have the latitude to gather information, including opinions, from unit employees to ensure the efficiency and effectiveness of its operations.

The Authority concluded that the agency's conduct therein did not constitute an unlawful bypass of the exclusive representative because the questionnaires were an information gathering mechanism, in connection with the management function of studying its operations, and because there was no indication that management attempted to deal or negotiate directly with unit employees concerning their conditions of employment.

In the circumstances of this case, the Authority finds that the "Integrity and Security Awareness Feedback Questionnaire" did not constitute an unlawful bypass of the Union in violation of the Statute. In our opinion, the questionnaire merely sought factual information in order to effectively avoid and prevent fraud and abuse within the Agency's ODO program. Thus, the questionnaire clearly indicated that it was "being provided so that ODO employees and managers may assist the Integrity Staff in ensuring that integrity in the Social Security program is maintained." It has not been shown that the Respondent intended to or did use any information gained from the questionnaire in any way which would undermine the status of the exclusive representative. Further, the record fails to show that the Respondent by any other action sought to or did in fact attempt to negotiate directly with unit employees concerning their conditions of employment.

The Authority concludes that the General Counsel has failed to establish an unlawful bypass in violation of section 7116(a)(1) and (5) of the Statute. The Authority further finds that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate the manner in which information would be obtained from bargaining unit employees, or concerning procedures and appropriate arrangements for unit employees who may be adversely affected by the Respondent's decision to gather the information. /2/ Accordingly, we shall order that the complaint be dismissed.

ORDER

IT IS ORDERED that the complaint in Case No. 3-CA-40552 be, and it hereby is, dismissed in its entirety.

Issued, Washington, D.C., September 11, 1985

(s) HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS JR.
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Section 7116(a)(1) and (5) provides:

Section 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)

/2/ See Department of Defense, Office of Dependents Schools, 19 FLRA No. 94(1985).