Social Security Administration, Tulsa District Office, Tulsa, Oklahoma and American Federation of Government Employees, Local 2387 (Authority decision, June 15, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of this transferred unfair labor practice case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

The Social Security Administration's Tulsa office issued a memo reminding employees to take coffee breaks generally between 9 a.m. and 3 p.m. The union claimed the memo changed working conditions and the collective bargaining agreement without negotiation. The judge found that the time limits were a longstanding office policy and that the agreement did not set break times. The Authority adopted the judge's dismissal, with no exceptions filed.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(1) and (6).
• Outcome: The judge's dismissal of the unfair labor practice complaint was upheld.
• Key point: A reminder of an existing break-time policy was not a unilateral change on this record.

Full text (FLRA public release)

[ v01 p579 ]

01:0579(67)CA

The decision of the Authority follows:

1 FLRA No. 67

SOCIAL SECURITY ADMINISTRATION,
TULSA DISTRICT OFFICE,
TULSA, OKLAHOMA
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2387, AFL-CIO
Complainant

Assistant Secretary
Case No. 63-8417(CA)

DECISION AND ORDER

ON MARCH 9, 1979, ADMINISTRATIVE LAW JUDGE JOHN D. HENSON ISSUED HIS
RECOMMENDED DECISION AND ORDER 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. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 63-8317(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JUNE 15, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

IN THE MATTER OF

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

LOCAL 2387, AFL-CIO

COMPLAINANT

AND

SOCIAL SECURITY ADMINISTRATION

TULSA, OKLAHOMA, DISTRICT

RESPONDENT

RECOMMENDED DECISION AND ORDER

STATEMENT OF THE CASE

THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED; THE NOTICE OF HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR
OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR; AND THE PROCEEDING WAS CONDUCTED BEFORE THE
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS. THIS DECISION,
PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44,
NO. 1, JANUARY 2, 1979, PAGES 7-8, IS ISSUED IN THE NAME OF THE
AUTHORITY AND, IN ACCORDANCE WITH SEC. 2400.2 (5 C.F.R. 2400.2) OF THE
TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY THE AUTHORITY IN
ACCORDANCE WITH THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL REGULATIONS, PART
201, ET. SEQ., EXCEPT THAT THE WORD "AUTHORITY" SHALL BE SUBSTITUTED
WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN THE RULES AND
REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.

PURSUANT TO THE COMPLAINT FILED JUNE 22, 1978, BY LOCAL 2387,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (HEREINAFTER CALLED
COMPLAINANT UNION) AGAINST SOCIAL SECURITY ADMINISTRATION, DISTRICT
OFFICE, TULSA, OKLAHOMA (HEREINAFTER CALLED RESPONDENT). THE REGIONAL
ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES FOR THE KANSAS CITY REGION
ISSUED A NOTICE OF HEARING ON COMPLAINT ON OCTOBER 6, 1978. THE
COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6)
OF THE EXECUTIVE ORDER 11491, AS AMENDED. THE GRAVAMEN OF THE
ALLEGATION WAS THAT A MEMORANDUM ISSUED BY RESPONDENT ON JANUARY 24,
1978, THE SUBJECT BEING "REMINDER ON TARDINESS, VISITATIONS AND BREAKS",
CONSTITUTED A CHANGE IN WORKING CONDITIONS AND UNILATERALLY CHANGED THE
NEGOTIATED AGREEMENT BETWEEN THE PARTIES WITHOUT AFFORDING THE
COMPLAINANT UNION, AS THE EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO
CONSULT, CONFER OR NEGOTIATE AS REQUIRED BY THE EXECUTIVE ORDER.

A HEARING WAS HELD ON NOVEMBER 15, 1978, IN TULSA, OKLAHOMA. ALL
PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD AND
TO INTRODUCE RELEVANT EVIDENCE AND TESTIMONY ON THE ISSUES INVOLVED.
BRIEFS WERE SUBMITTED BY THE PARTIES AND HAVE BEEN DULY CONSIDERED.

UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
ORDER:

PRELIMINARY RULING ON MOTION TO DISMISS

BY LETTER DATED APRIL 17, 1978, (EXHIBIT R-4) COMPLAINANT MADE THE
UNFAIR LABOR PRACTICE CHARGE REQUIRED BY THE ORDER AND THE ASSISTANT
SECRETARY'S RULES AND REGULATIONS. THE CHARGE ALLEGED THAT RESPONDENT
VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER. THEREAFTER A COMPLAINT
WAS FILED ALLEGING VIOLATION OF SECTION 19(A)(1) AND (5). THIS
COMPLAINT WAS WITHDRAWN BY COMPLAINANT AND ON JUNE 21, 1978 UNFAIR LABOR
PRACTICE COMPLAINT (ASSISTANT SECRETARY EXHIBIT 1) WAS FILED ALLEGING
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.

THE COMPLAINT FILED ON JUNE 21, 1978 (ASSISTANT SECRETARY EXHIBIT 1)
DIFFERED FROM THE CHARGE FILED ON APRIL 17, 1978 IN THAT IT ALLEGED
VIOLATION OF THE SECTION 19(A)(6) INSTEAD OF SECTION 19(A)(5). NO NEW
FACTS OR CONDUCT WERE ALLEGED.

ON JULY 3, 1978, RESPONDENT FILED IT'S RESPONSE AND MOTION TO DISMISS
COMPLAINT. THE MOTION TO DISMISS WAS REFERRED TO THIS OFFICE BY THE
ACTING REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES AT THE TIME OF
ISSUING NOTICE OF HEARING.

AT THE HEARING, RESPONDENT ARGUED THAT THE ALLEGED VIOLATION OF
SECTION 19(A)(6) SHOULD NOT BE CONSIDERED AND SHOULD BE DISMISSED
BECAUSE PART 203.2(B) OF THE ASSISTANT SECRETARY'S RULES AND REGULATIONS
LIMITS THE MATTERS THAT CAN BE ADDRESSED IN THE COMPLAINT TO THE MATTERS
RAISED IN THE CHARGE.

THE PURPOSE OF PART 203.2 OF THE RULES AND REGULATIONS IS TO REQUIRE
THE PARTIES TO ATTEMPT TO DEAL WITH THEIR DISPUTES PROMPTLY AND TO
PREVENT STALE CHARGES FROM BEING RAISED. IN THIS CASE, WHERE RESPONDENT
WAS TIMELY ADVISED IN THE CHARGE AND COMPLAINT OF ALL OF THE CONDUCT
ALLEGED TO BE VIOLATIVE OF THE ORDER AND THE COMPLAINT ONLY ADDED THE
LEGAL CONCLUSION OF THE SECTION OF THE ORDER VIOLATED, IT IS CONCLUDED
THAT THE TECHNICALITY COMPLAINED OF WOULD ONLY FRUSTRATE THE VERY
POLICIES OF THE ORDER WITHOUT IN ANY WAY ACHIEVING THE PURPOSE OF THE
RULE IN QUESTION. DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE
FLIGHT TEST CENTER, EDWARDS AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 255
(MARCH 14, 1973). IN LIGHT OF THE FOREGOING RESPONDENT'S MOTION TO
DISMISS THE ALLEGATION THAT SECTION 19(A)(6) OF THE ORDER HAD BEEN
VIOLATED IS DENIED.

FINDINGS OF FACT

1. COMPLAINANT IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
   EMPLOYEES OF SOCIAL SECURITY ADMINISTRATION, TULSA DISTRICT OFFICE.

2. ON JANUARY 24, 1978, RESPONDENT ISSUED A MEMORANDUM, THE SUBJECT
   BEING "REMINDER ON TARDINESS, VISITATIONS AND BREAKS"; (JOINT EXHIBIT
   2). THE PURPOSE OF THE MEMORANDUM, AS EXPRESSLY STATED THEREIN, WAS TO
   REMIND THE EMPLOYEES OF EXISTING POLICY CONCERNING THESE AREAS OF THEIR
   EMPLOYMENT. IT STATED IN PERTINENT PART AS FOLLOWS: /2/

3. FOOD AND DRINK AT DESKS-- FOOD AND DRINK CAN BE TAKEN TO YOUR
   DESK DURING THE FIRST

HOUR (8:00-- 9:00 A.M.). AFTER THE DOORS FOR THE PUBLIC OPEN THEY
ARE NOT TO BE AT

DESKS. DESKS ARE TO BE CLEARED OF FOOD AND DRINK BY 9:00 A.M.

4. BREAKS AND LUNCH-- BREAKS ARE 15 MINUTES AND ARE GENERALLY TO BE
   TAKEN NOT BEFORE 9:00

A.M. NOR AFTER 3:00 P.M., UNLESS OVERTIME OF TWO HOURS OR MORE IS
BEING WORKED BEFORE THE

NORMAL WORK DAY OR TWO HOURS AFTER THE NORMAL WORK DAY IN WHICH CASE
AN ADDITIONAL BREAK IS

AUTHORIZED AT 8:00 A.M. AND AT 4:30 P.M. LUNCH IS 30 MINUTES.

3. PRIOR TO THE ISSUANCE OF THE MEMORANDUM DATED JANUARY 24, 1978,
   RESPONDENT HAD ISSUED A MEMORANDUM DESIGNATED AS OFFICE POLICY #11
   (JOINT EXHIBIT #5). OFFICE POLICY #11 WAS DATED JANUARY, 1972. IT
   PROVIDED IN PERTINENT PART AS FOLLOWS:

LUNCH AND COFFEE BREAKS

2. TIME AWAY FROM DESKS FOR COFFEE BREAKS IS NOT TO EXCEED FIFTEEN
   MINUTES EACH IN THE

MORNINGS AND AFTERNOONS.

6. GENERALLY, COFFEE BREAKS SHOULD NOT BE STARTED BEFORE 9:00 A.M.
   FOR MORNING BREAK OR

AFTER 3:00 P.M. FOR AFTERNOON BREAK.

4. ON APRIL 5, 1976, A NEGOTIATED AGREEMENT BETWEEN THE PARTIES
   BECAME EFFECTIVE. IT PROVIDES IN PERTINENT PART AS FOLLOWS:

ARTICLE X

SECTION B COFFEE BREAK TIME IS A PART OF THE REGULAR DUTY HOURS AND
MAY NOT BE USED TO MAKE

UP TARDINESS NOR ACCUMULATED FOR ANY PURPOSE. EMPLOYEES WILL BE
GRANTED ONE FIFTEEN (15)

MINUTE PERIOD FOR COFFEE BREAK EACH MORNING AND AFTERNOON. EMPLOYEES
ARE PERMITTED TO LEAVE

THE PREMISES DURING THESE PERIODS PROVIDED THEY RETURN TO THEIR DUTY
STATIONS WITHIN THEIR 15

MINUTE COFFEE BREAK.

5. THE RECORD ESTABLISHED, AND I CONCLUDE, THAT COMPLAINANT HAD
   NOTICE OF THE OFFICE POLICY CONCERNING COFFEE BREAKS AS PROVIDED IN
   OFFICE POLICY #11 AND THE EMPLOYEES REPRESENTED BY COMPLAINANT HAD
   RECOGNIZED AND SUBSTANTIALLY COMPLIED WITH THE CONDITIONS CONTAINED
   THEREIN SINCE JANUARY 1972. PERIODICALLY, SINCE 1972, RESPONDENT HAD
   ISSUED REMINDERS TO THE EMPLOYEES AND SUPERVISORS THAT THE EXISTING
   POLICY ON BREAKS SHOULD BE OBSERVED (TR. P. 25). THE SUBJECT HAD ALSO
   BEEN DISCUSSED AT STAFF MEETINGS AND DISTRIBUTION OF REMINDERS MADE
   SINCE THE EFFECTIVE DATE OF THE NEGOTIATED AGREEMENT (EXHIBIT R-1). I
   THEREFORE CONCLUDE THAT THE POLICY CONCERNING TARDINESS, VISITATION AND
   BREAKS AS SET OUT IN OFFICE POLICY #11 ISSUED IN JANUARY 1972 HAS BEEN
   UTILIZED SINCE THAT DATE AND SINCE THE EFFECTIVE DATE OF THE NEGOTIATED
   AGREEMENT OF APRIL 5, 1976.

6. MR. DEWELL TURNER, DISTRICT MANAGER OF THE TULSA OFFICE,
   ACKNOWLEDGES THAT THE MEMO DATED JANUARY 27, 1978 WAS ISSUED WITHOUT
   PRIOR NOTICE TO COMPLAINANT.

7. COMPLAINANT ARGUES THAT THE MEMO DATED 1/27/78 CONSTITUTED A
   CHANGE IN WORKING CONDITIONS AND UNILATERALLY CHANGED THE NEGOTIATED
   AGREEMENT DATED APRIL 5, 1976.

CONCLUSIONS OF LAW

THE INITIAL QUESTION IS WHETHER THE JANUARY 27, 1978 MEMORANDUM
CONSTITUTED A CHANGE IN EMPLOYMENT CONDITIONS. I HAVE FOUND THAT THE
POLICY CONCERNING TARDINESS, VISITATION AND BREAKS HAD BEEN IN EFFECT
SINCE JANUARY 1972 AND AS OUTLINED IN OFFICE POLICY #11 (JOINT EXHIBIT
5). THE EVIDENCE ESTABLISHES TO MY SATISFACTION THAT COMPLAINANT WAS
AWARE OF THIS POLICY SINCE THE DATE OF ISSUANCE IN JANUARY, 1972. /3/
IT IS FURTHER EVIDENT THAT THE EMPLOYEES SUBSTANTIALLY COMPLIED WITH
THIS POLICY. THE FACT THAT IT'S ENFORCEMENT BECAME LAX AT TIMES IS
IMMATERIAL AND IN FACT PERIODIC REMINDERS, AND DISCUSSIONS IN STAFF
MEETINGS TEND TO VERIFY THAT THE PARTIES RECOGNIZED IT'S EXISTENCE.

THE COMPLAINANT ARGUES THAT THE MEMORANDUM OF JANUARY 24, 1978
DIFFERED FROM PAST PRACTICES CONCERNING "COFFEE BREAKS". I DISAGREE. I
FIND THAT THE MEMORANDUM ISSUED BY RESPONDENT ON JANUARY 24, 1978 DID
NOT CONSTITUTE A CHANGE IN EMPLOYMENT CONDITIONS BUT RATHER, WAS A
REAFFIRMATION OF THE LONGSTANDING POLICY ISSUED IN JANUARY 1972.

COMPLAINANT FURTHER ARGUES THAT THE MEMORANDUM ISSUED ON JANUARY 24,
1978 UNILATERALLY CHANGED THE NEGOTIATED AGREEMENT DATED APRIL 5, 1976.
IT SPECIFICALLY OBJECTS TO THAT PORTION OF THE MEMO RELATING TO COFFEE
BREAKS. A REVIEW OF THE MEMO AND AGREEMENT IS NECESSARY TO RESOLVE THIS
ISSUE.

ARTICLE X SECTION B OF THE NEGOTIATED AGREEMENT PROVIDES AS FOLLOWS:

"COFFEE BREAK TIME IS A PART OF THE REGULAR DUTY HOURS AND MAY NOT BE
USED TO MAKE UP

TARDINESS NOR ACCUMULATED FOR ANY PURPOSE. EMPLOYEES WILL BE GRANTED
ONE FIFTEEN (15) MINUTE

PERIOD FOR COFFEE BREAK EACH MORNING AND AFTERNOON. EMPLOYEES ARE
PERMITTED TO LEAVE THE

PREMISES DURING THESE PERIODS PROVIDED THEY RETURN TO THEIR DUTY
STATIONS WITHIN THEIR 15

MINUTE COFFEE BREAK."

THE COFFEE BREAK PROVISIONS OF THE MEMORANDUM ISSUED ON JANUARY 24,
1978 PROVIDES FOR 15 MINUTE COFFEE BREAKS " . . . AND ARE GENERALLY TO
BE TAKEN NOT BEFORE 9:00 A.M. NOR AFTER 3:00 P.M., UNLESS . . . ."

THE COMPLAINANT EMPHASIZED THAT THE MEMORANDUM OF JANUARY 24, 1978
UNILATERALLY CHANGED THE NEGOTIATED AGREEMENT OF APRIL 5, 1976 IN THAT
THE MEMO STATED THAT COFFEE BREAKS ARE GENERALLY TO BE TAKEN NOT BEFORE
9:00 A.M. NOR AFTER 3:00 P.M., WHEREAS, THE NEGOTIATED AGREEMENT MAKES
NO RESTRICTION AS TO THE TIME OF COFFEE BREAKS.

HAVING FOUND THAT THE POLICY OF NOT TAKING COFFEE BREAKS BEFORE 9:00
A.M. NOR AFTER 3:00 P.M. WAS AN EXISTING PRACTICE AND LONGSTANDING
CONDITION OF EMPLOYMENT, AND CONSIDERING THE FACT THAT THE NEGOTIATED
AGREEMENT DOES NOT ADDRESS THE ISSUE OF WHEN COFFEE BREAKS ARE
PERMITTED, I CONCLUDE THAT THE MEMORANDUM OF JANUARY 24, 1978 DID NOT
CONSTITUTE A UNILATERAL CHANGE IN THE NEGOTIATED AGREEMENT DATED APRIL
5, 1976.

IN CONCLUSION, I FIND THAT THE ISSUANCE, ON JANUARY 24, 1978, OF A
MEMORANDUM CONCERNING TARDINESS, VISITATIONS AND BREAKS WHICH WAS AN
EXISTING CONDITION OF EMPLOYMENT DID NOT CONSTITUTE A VIOLATION OF
SECTION 19(A)(1) AND (6) OF THE ORDER.

RECOMMENDATION

IN VIEW OF THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND THAT
THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.

JOHN D. HENSON

ADMINISTRATIVE LAW JUDGE

DATED: MARCH 9, 1979

NEW ORLEANS, LOUISIANA

JDH:HLS

H15-B-7

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.

/2/ AT THE HEARING, COMPLAINANT ONLY TOOK ISSUE WITH THAT PORTION OF
THE MEMO PERTAINING TO FOOD AND DRINK BREAKS (TR. PPS. 49 AND 50).

/3/ DONNA FAY MOON, INCUMBENT PRESIDENT OF THE UNION, TESTIFIED THAT
SHE WAS GIVEN A COPY OF OFFICE POLICY "11 WHEN SHE CAME TO WORK AT THE
DISTRICT OFFICE (TR. P. 53).