[ v01 p508 ]
01:0508(59)CA
The decision of the Authority follows:
1 FLRA No. 59
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF
RETIREMENT AND SURVIVORS INSURANCE,
NORTHEASTERN PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1760, AFL-CIO
Complainant
Assistant Secretary
Case Nos. 30-08062(CA)
and 30-08264(CA)
DECISION AND ORDER
ON DECEMBER 13, 1978, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
CONSOLIDATED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. THEREAFTER, THE RESPONDENT FILED TIMELY EXCEPTIONS
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 THE
SUBJECT CASES, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
ORDER /1/
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF RETIREMENT AND SURVIVORS INSURANCE,
NORTHEASTERN PROGRAM SERVICE CENTER SHALL:
1. CEASE AND DESIST FROM:
(A) SOLICITING FROM EMPLOYEES REPRESENTED BY THE NATIONAL OFFICE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL COUNCIL
OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THROUGH A QUESTIONNAIRE,
OPINIONS AND SENTIMENTS INVOLVING PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS RELATIVE TO FLEXTIME WORK HOURS
WITHOUT FIRST OBTAINING THE CONSENT OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1760, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF
THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION.
(B) CHANGING WORK HOURS FROM A STANDARD SCHEDULE TO A FLEXTIME
PROGRAM APPLICABLE TO EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), WITHOUT FIRST
NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION
1760, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF THE EXCLUSIVELY
RECOGNIZED LABOR ORGANIZATION, AND AFFORDING IT THE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
DECISION, THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING
SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY
AFFECTED EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL UNION 1760, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EXCLUSIVELY
RECOGNIZED LABOR ORGANIZATION, RESCIND THE FLEXTIME PROGRAM INSTITUTED
ON NOVEMBER 11, 1977, AND RETURN TO THE PRIOR SYSTEM OF WORK HOURS OR
UPON REQUEST, MEET AND CONFER WITH REGARD TO THE MODIFICATION THEREOF.
(B) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
UNION 1760, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EMPLOYEES'
EXCLUSIVE BARGAINING REPRESENTATIVE, OF ANY INTENDED CHANGE IN EMPLOYEES
WORK HOURS AND, UPON REQUEST, MEET AND CONFER, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE DECISION, THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT
SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(C) POST AT ITS FACILITY AT THE NORTHEASTERN PROGRAM SERVICE CENTER
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE DIRECTOR OF THE NORTHEASTERN PROGRAM SERVICE
CENTER AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 14, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B.FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT SOLICIT FROM EMPLOYEES REPRESENTED BY THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THROUGH A
QUESTIONNAIRE, OPINIONS AND SENTIMENTS INVOLVING PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS RELATIVE TO FLEXTIME
WORK HOURS WITHOUT FIRST OBTAINING THE CONSENT OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL UNION 1760, AFL-CIO, THE AUTHORIZED
REPRESENTATIVE OF THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION.
WE WILL NOT CHANGE WORK HOURS FROM A STANDARD SCHEDULE TO A FLEXTIME
PROGRAM APPLICABLE TO EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), WITHOUT FIRST
NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION
1760, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF THE EXCLUSIVELY
RECOGNIZED LABOR ORGANIZATION, AND AFFORDING IT THE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
DECISION, THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING
SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY
AFFECTED EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL UNION 1760, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EXCLUSIVELY
RECOGNIZED LABOR ORGANIZATION, RESCIND THE FLEXTIME PROGRAM INSTITUTED
ON NOVEMBER 11, 1977, AND RETURN TO THE PRIOR SYSTEM OF WORK HOURS OR
UPON REQUEST MEET AND CONFER WITH REGARD TO THE MODIFICATION THEREOF.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
UNION 1760, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EMPLOYEES'
EXCLUSIVE BARGAINING REPRESENTATIVE, OF ANY INTENDED CHANGE IN EMPLOYEES
WORK HOURS AND, UPON REQUEST, MEET AND CONFER, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE DECISION, THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT
SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
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 OF THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007.
SAMUEL S. GOLD, ESQUIRE
6401 SECURITY BOULEVARD
WEST HIGHRISE BUILDING
BALTIMORE, MD 21235
FOR THE RESPONDENT
HERBERT COLLENDER, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1760
P.O. BOX 626
CORONA-ELMHURST, NY 11373
FOR THE COMPLAINANT
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
PRELIMINARY STATEMENT
THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
AS AMENDED (HEREINAFTER REFERRED TO AS THE ORDER). PURSUANT TO THE
REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT
RELATIONS (HEREINAFTER REFERRED TO AS THE ASSISTANT SECRETARY), AN ORDER
CONSOLIDATING CASES AND NOTICE OF HEARING ON COMPLAINTS ISSUED ON APRIL
11, 1978 WITH REFERENCE TO ALLEGED VIOLATIONS OF 19(A)(1) AND (6) OF THE
ORDER. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
UNION 1760 (HEREINAFTER REFERRED TO AS THE UNION OR COMPLAINANT)
ESSENTIALLY CONTENDS THAT THE DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE, NORTHEASTERN PROGRAM SERVICE CENTER (HEREINAFTER
REFERRED TO AS THE CENTER OR THE RESPONDENT) VIOLATED THE ORDER BY
ALLEGEDLY BYPASSING THE UNION WHEN DISTRIBUTING A QUESTIONNAIRE TO
EMPLOYEES CONCERNING A "FLEXTIME" APPROACH TO WORK DAYS, /2/ AND
REFUSING TO NEGOTIATE WITH THE UNION RELATIVE TO RESPONDENT'S ADOPTING A
"FLEXTIME" PROGRAM APPLICABLE TO UNIT EMPLOYEES. /3/
AT THE HEARING HELD ON MAY 16, 1978, THE PARTIES WERE REPRESENTED AND
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BOTH PARTIES FILED BRIEFS.
UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN THE AGENT OF THE
EXCLUSIVE REPRESENTATIVE, THE NATIONAL OFFICE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY
PAYMENT CENTER LOCALS), FOR THE PURPOSE OF REPRESENTING THE RESPONDENT'S
EMPLOYEES IN LOCAL MATTERS AFFECTING PERSONNEL POLICIES AND PRACTICES
AND OTHER WORKING CONDITIONS. /4/
2. ON MARCH 28, 1977, THE NORTHEASTERN PROGRAM SERVICE CENTER WAS
NOTIFIED THAT THE COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION HAD
AUTHORIZED THE IMPLEMENTATION OF "FLEXTIME" WHERE FEASIBLE THROUGHOUT
SOCIAL SECURITY ADMINISTRATION HEADQUARTERS AND THE SIX PROGRAM SERVICE
CENTERS INCLUDING THE NORTHEASTERN CENTER. /5/ GUIDELINES FOR SUCH
ACTION WERE PROVIDED AND THE CENTER WAS NOTIFIED THAT ANY DECISION
REGARDING FLEXTIME MUST BE BASED ON FINDINGS FROM A FEASIBILITY STUDY
CONDUCTED BY THE CENTER'S MANAGEMENT. THE CENTER WAS FURTHER NOTIFIED
THAT THE FEASIBILITY STUDY WAS TO BE COMPLETED BY MAY 30, 1977 AND IF
THE FEASIBILITY COMMITTEE RECOMMENDED THAT FLEXTIME BE ADOPTED A
PROPOSAL COMMITTEE WAS TO BE ESTABLISHED. A PROPOSED FLEXTIME PROGRAM
WOULD THEN BE SUBMITTED TO THE OFFICE OF MANAGEMENT AND ADMINISTRATION
OF THE BUREAU OF RETIREMENT AND SURVIVORS INSURANCE WITHIN 90 DAYS OF
APPROVAL OF THE FEASIBILITY REPORT. EMPLOYEE INTEREST AND DATA WAS TO
BE ASCERTAINED BY USE OF A QUESTIONNAIRE PRIOR TO THE CENTER'S
SUBMISSION OF ITS PROPOSED FLEXTIME PROGRAM TO THE OFFICE OF MANAGEMENT
AND ADMINISTRATION (OMA).
3. THE CENTER DETERMINED THAT THE UNION'S PARTICIPATION IN THE
DEVELOPMENT OF THE PROPOSED PROGRAM WOULD BE LIMITED TO "CONSULTATION"
AS APPOSED TO "NEGOTIATION".
4. IN EARLY MAY 1977, THE CENTER'S FEASIBILITY COMMITTEE, COMPOSED
OF MANAGEMENT AND SUPERVISORY EMPLOYEES ONLY, FORWARDED TO OMA, FOR
APPROVAL, ITS STUDY AND DETERMINATION THAT THE ADOPTION OF FLEXTIME AT
THE CENTER WAS BOTH FEASIBLE AND DESIRABLE.
5. ON OR ABOUT MAY 10, 1977, THE CENTER ESTABLISHED A COMMITTEE TO
DEVELOP A PROPOSAL FOR PARTICIPATION IN A FLEXTIME PROGRAM. THE
COMMITTEE CONSISTED OF FOUR MANAGEMENT REPRESENTATIVES AND ONE UNION
REPRESENTATIVE, JAMES ARMET, VICE-PRESIDENT OF LOCAL 1760.
6. THE PROPOSAL COMMITTEE MET ON FIVE OCCASIONS BETWEEN MAY 10 AND
JUNE 9, 1977 DURING WHICH PERIOD ALL FIVE MEMBERS OF THE COMMITTEE
PARTICIPATED IN THE DEVELOPMENT OF A FLEXTIME PROPOSAL INCLUDING THE
FORMULATION OF A QUESTIONNAIRE TO BE SENT TO EMPLOYEES PURSUANT TO OMA
GUIDELINES.
7. AT THE PROPOSAL COMMITTEE MEETING OF MAY 10, 1977, ARMET URGED,
AND THE MANAGEMENT REPRESENTATIVES REFUSED, THE INCLUSION OF TWO
QUESTIONS IN THE QUESTIONNAIRE: ONE DEALING WITH THE TIMEKEEPING SYSTEM
PREFERRED BY EMPLOYEES AND THE OTHER CONCERNING EMPLOYEE PREFERENCE AS
TO FLEXIBLE LUNCH AND BREAK PERIODS.
8. BY MEMORANDUM DATED MAY 12, 1977 TO MYRNA REICH, THE PROPOSED
COMMITTEE CHAIRPERSON, ARMET AGAIN URGED THAT THE QUESTIONNAIRE INCLUDE
THE TWO QUESTIONS PREVIOUSLY PROPOSED. ARMET, INTER ALIA, NOTIFIED
REICH THAT "(A) ANY UNILATERAL DECISION ON THE PART OF MANAGEMENT TO
ISSUE THE SUBJECT QUESTIONNAIRE WITHOUT INCLUSION OF THE TWO QUESTIONS
PROPOSED BY THE LOCAL WILL NOT BE CONDUCIVE TO GOOD LABOR-MANAGEMENT
RELATIONS WITHIN THE PROGRAM SERVICE CENTER. ADDITIONALLY ANY
UNILATERAL MANAGEMENT ACTION WILL NECESSITATE THE LOCAL'S REQUESTING
NEGOTIATIONS ON ALL ASPECTS OF FLEXTIME IMPLEMENTATION". /6/
9. SUBSEQUENTLY, ARMET ASCERTAINED FROM REICH THAT THE CENTER
PLANNED TO ISSUE THE QUESTIONNAIRE TO EMPLOYEES ON MAY 16, 1977 WITHOUT
INCLUDING THE TWO ITEMS HE OFFERED.
10. BY MEMORANDUM DATED MAY 13, 1977 HERBERT COLLENDER, PRESIDENT OF
LOCAL 1760, MADE A "FORMAL REQUEST" TO NEGOTIATE ON THE MATTER OF
FLEXTIME. COLLENDER ATTACHED A PROPOSED MEMORANDUM OF UNDERSTANDING
COVERING NEGOTIATION GROUND RULES.
11. ON MAY 16, 1977 THE CENTER DISTRIBUTED THE QUESTIONNAIRE TO
EMPLOYEES TO BE FILLED OUT ON WORK-TIME AND RETURNED THAT SAME DAY. THE
QUESTIONNAIRE DID NOT CONTAIN THE TWO QUESTIONS WHICH WERE THE SUBJECT
OF THE UNION'S CONCERN. THE QUESTIONNAIRE CONSISTED OF A TWO PAGE
INSTRUCTION SHEET AND 27 QUESTIONS. THE INSTRUCTION SHEETS EXPLAINED
HOW FLEXTIME OPERATES IN GENERAL AND SET FORTH THE CENTER'S OPINION AS
TO ADVANTAGES AND DISADVANTAGES OF FLEXTIME. THUS, THE INSTRUCTIONS
STATED:
"FLEXTIME WILL OFFER THE ADVANTAGES OF ALLOWING PEOPLE TO ADJUST
THEIR WORK HOURS TO THEIR
PERSONAL SCHEDULES, MAKING IT EASIER TO FORM CARPOOLS, AND OFFERING
MORE OPPORTUNITY TO
PARTICIPATE IN EDUCATIONAL, CIVIC, FAMILY, AND RECREATIONAL
ACTIVITIES.
"THERE ARE SOME DRAWBACKS TO FLEXTIME. IT MAY NOT BE WORKABLE FOR
ALL JOBS, AND THEREFORE
EMPLOYEES IN CERTAIN JOBS MAY BE LIMITED IN THEIR PARTICIPATION. FOR
EXAMPLE, IT WILL BE
NECESSARY TO PROVIDE FOR TELEPHONE COVERAGE THROUGHOUT SET HOURS IN
CERTAIN LOCATIONS. IN
ORDER TO PROVIDE SUPERVISION FOR THE ENTIRE WORKDAY, SUPERVISORS MAY
HAVE TO ARRANGE WORK
SCHEDULES. ADDITIONALLY, AN EMPLOYEE MAY FIND THAT HIS/HER
SUPERVISOR IS NOT WORKING EXACTLY
THE SAME HOURS AS HE/SHE DOES."
THE INSTRUCTIONS ALSO NOTED THAT THE PURPOSE OF THE QUESTIONNAIRE WAS
TO "DETERMINE THE EXTENT OF EMPLOYEES INTEREST IN FLEXTIME."
CERTAIN QUESTIONS SOUGHT GENERAL EMPLOYEE INFORMATION PERTAINING TO
AGE, SEX, WORK COMPONENT, SUPERVISORY STATUS AND MATTERS CONCERNING
COMMUTING PRACTICES AND ATTITUDES. OTHER QUESTIONS WERE SPECIFICALLY
DIRECTED AT EMPLOYEE SENTIMENT ON FLEXTIME, SUCH AS: /7/
"WHAT IS YOUR OVERALL REACTION TO THE FLEXTIME GUIDELINES GIVEN ON
THE INSTRUCTION PAGE OF
THIS QUESTIONNAIRE", (CHOICE OF ANSWERS FROM "I LIKE THESE MUCH
BETTER THAN THE RULES AND
REGULATIONS COVERING STANDARD, NONFLEXTIME SHIFTS" TO "LESS WELL THAN
THE RULES ETC.")
"WHAT EFFECT DO YOU THINK WORKING FLEXIBLE HOURS COMPARED WITH
WORKING A STANDARD SHIFT
WILL HAVE ON HOW WELL YOU LIKE YOUR JOB."
"WHAT EFFECT DO YOU THINK WORKING FLEXIBLE HOURS COMPARED WITH
WORKING A STANDARD SHIFT
WILL HAVE ON YOUR USE OF SICK LEAVE."
"HOW IMPORTANT IS IT TO YOU TO 'HAVE A SAY' IN DECIDING ON YOUR WORK
HOURS."
"UNDER FLEXTIME, EMPLOYEES AND SUPERVISORS MAY NOT BE WORKING EXACTLY
THE SAME HOURS. HOW
MUCH OF A PROBLEM WILL THIS BE TO YOU".
"CURRENTLY, HOW DO YOU FEEL ABOUT THE TIME AND ATTENDANCE RULES AND
REGULATIONS WHERE YOU
WORK."
"AT THE PRESENT TIME, HOW DO YOU RATE YOUR JOB SATISFACTION."
"HOW IMPORTANT IS IT FOR YOU TO HAVE SOME FLEXIBILITY IN YOUR WORK
HOURS."
12. BY LETTER OF MAY 16 OR 17, 1977 THE CENTER RESPONDED TO
COLLENDER'S MAY 13, 1977 MEMORANDUM, SUPRA, AND NOTIFIED THE UNION THAT
IT WOULD ENTER INTO CONSULTATION WITH THE UNION PRIOR TO THE
IMPLEMENTATION OF FLEXTIME BUT SINCE THERE WAS NO REQUIREMENT TO ENTER
INTO NEGOTIATIONS, IT WAS RETURNING THE MEMORANDUM OF UNDERSTANDING
REGARDING NEGOTIATION GROUND RULES.
13. AFTER THE EMPLOYEES RETURNED THE QUESTIONNAIRE ON MAY 16, 1977,
THE RESPONSES WERE TALLIED AND THE PROPOSAL COMMITTEE, INCLUDING ARMET,
MET ON SEVERAL OCCASIONS TO DISCUSS WHAT PROPOSALS SHOULD BE MADE.
ARMET WAS UNABLE TO PERSUADE THE COMMITTEE TO ADOPT CERTAIN PROPOSALS,
PREVIOUSLY URGED, DEALING WITH AN EARLIER STARTING TIME OPTION AND TIME
RECORDATION MACHINES. ON JUNE 9, 1977, A MEMORANDUM WAS ISSUED FROM THE
COMMITTEE APPROVING THE PROPOSALS THE COMMITTEE ADOPTED BY MAJORITY
VOTE.
14. ON JUNE 9, 1977, THE PROPOSAL COMMITTEE SENT TO THE CENTER
DIRECTOR A REPORT WHICH NOTED THAT " . . . THE REPORT REPRESENTS THE
COMPOSITE FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE. WHILE THERE
WAS NOT UNANIMOUS AGREEMENT ON EVERY ISSUE, THE PROPOSAL AND ITS
COMPONENT PARTS DOES IN FACT REPRESENT MAJORITY OPINION.
15. THEREAFTER, REPRESENTATIVES OF THE UNION MET ONCE WITH THE
CENTER DIRECTOR AND TWICE WITH LABOR RELATIONS SPECIALIST JULIAN BERGMAN
AND DISCUSSED THE PROPOSALS AND THE UNION'S OBJECTIONS. /8/ BERGMAN
THEN TELEPHONED ARMET IN MID-JULY AND TOLD HIM THAT THE CENTER WAS
SUBMITTING ITS PROPOSALS TO HIGHER HEADQUARTERS. ARMET INQUIRED IF THE
CENTER WAS GOING TO INDICATE THE UNION'S POSITION ON THE MATTER AND
BERGMAN ANSWERED IN THE AFFIRMATIVE. BERGMAN TOLD ARMET IF HE HAD
DISAGREEMENT WITH THE SUBMISSION TO SUBMIT IT IN WRITING.
16. ON JULY 20, 1977 THE CENTER DIRECTOR FORWARDED THE CENTER'S
FLEXTIME PROPOSAL TO THE BUREAU OF RETIREMENT AND SURVIVORS INSURANCE.
THE COVER MEMORANDUM TO THE PROPOSAL RELATED THAT THE PROPOSAL WAS
"DISCUSSED" WITH THE UNION AND "APPROPRIATE CONSULTATION" TOOK PLACE.
THE MEMORANDUM INDICATED THAT IN GENERAL THE UNION AGREED WITH THE
MAJORITY OF THE COMMITTEE'S FINDINGS AND RECOMMENDATIONS AND NOTED THAT
"A FEW AREAS COULD NOT BE RESOLVED-- MORNING FLEXBAND HOUR, A SOLID CORE
PERIOD WITH FIXED LUNCHES AND BREAKS, THE USE OF MACHINES VIS-A-VIS THE
HONOR SYSTEM TO RECORD TIME AND A REQUEST FOR ADDITIONAL ADMINISTRATIVE
TIME FOR UNION OFFICERS. /9/
17. ON SEPTEMBER 12, 1977 OMA NOTIFIED THE CENTER THAT ITS FLEXTIME
PROPOSAL HAD BEEN APPROVED.
18. BY LETTER TO THE CENTER DATED SEPTEMBER 28, 1977 THE UNION
REQUESTED THAT THE PARTIES "MEET AND CONFER ON THE (FLEXTIME) PROPOSAL,
ITS IMPLEMENTATION AND ADVERSE AFFECT." THE UNION SUGGESTED OCTOBER 3 AS
THE DATE FOR A PRELIMINARY MEETING ON THE MATTER.
19. ON OCTOBER 4, 1977 THE CENTER NOTIFIED ITS EMPLOYEES THAT
FLEXTIME WOULD BE IMPLEMENTED AT THE CENTER WITHIN THREE TO FIVE WEEKS.
20. BY MEMORANDUM DATED OCTOBER 5, 1977 THE CENTER RESPONDED TO THE
UNION'S SEPTEMBER 28 LETTER, ABOVE, AND ADVISED THE UNION THAT THE
CENTER HAD NO OBLIGATION TO "MEET AND CONFER" ONLY THAT OF
"CONSULTATION." THE CENTER ALSO CONTENDED, INTER ALIA, THAT IT HAD FULLY
"CONSULTED" WITH THE UNION ON THE MATTER AND SINCE THE FLEXTIME PROPOSAL
SUBMITTED TO OMA WAS THE PROGRAM TO BE IMPLEMENTED, THERE WAS NO NEED TO
ENTER FURTHER "CONSULTATION" AT THIS TIME. IN ADDITION, THE CENTER
STATED " . . . AS THE PROPOSAL HAS BEEN APPROVED BY SSA, IT IS THIS
FLEXTIME PLAN THAT WE MUST IMPLEMENT AND WE MUST IMPLEMENT IT IN ACCORD
WITH THOSE GUIDELINES SET FORTH IN THE PLAN."
THE CENTER WENT ON TO SUGGEST SOME ITEMS IT WOULD LIKE TO "DISCUSS"
WITH THE UNION WHICH INCLUDED LOCATION OF MACHINES, THE PACKAGE OF
MATERIALS TO BE DISTRIBUTED TO EMPLOYEES AND LUNCH BREAK SCHEDULES. THE
UNION WAS TO CONTACT BERGMAN TO ARRANGE A MEETING "TO DISCUSS THESE
ITEMS."
21. BY MEMORANDUM DATED OCTOBER 11, 1977 THE UNION NOTIFIED THE
CENTER THAT IT WOULD NOT ACCEPT ANYTHING LESS THAN "BARGAINING" ON
FLEXTIME AND ACCEPTING LESS MIGHT BE CONSTRUED TO BE A WAIVER OF THE
UNION'S RIGHT TO "NEGOTIATE" ON THE MATTER.
22. ON OCTOBER 12, 1977 THE CENTER ADVISED THE UNION THAT IT WAS
ADHERING TO ITS OCTOBER 5 MEMORANDUM TO THE UNION, SUPRA; THAT
"CONSULTATION" WAS ENTERED INTO WITH THE UNION PRIOR TO SUBMISSION OF
THE FLEXTIME PROPOSAL FOR APPROVAL; AND THE CENTER WAS READY TO
"CONSULT" WITH THE UNION ON THOSE AREAS STILL OPEN FOR CONSULTATION AS
NOTED IN THEIR OCTOBER 5 COMMUNICATION. IF SUCH "CONSULTATION" WAS
DESIRED, THE UNION WAS TO NOTIFY THE CENTER BY CLOSE OF BUSINESS THAT
SAME DAY. /10/
23. ON NOVEMBER 7, 1977 THE EMPLOYEES WERE NOTIFIED BY THE CENTER
THAT FLEXTIME WOULD OFFICIALLY BEGIN ON NOVEMBER 11, 1977 AND WOULD
ENTAIL A NEW LUNCH AND BREAK SCHEDULE FOR EMPLOYEES. APPARENTLY
IMPLEMENTATION OCCURRED ON NOVEMBER 11.
DISCUSSION AND CONCLUSIONS
BECAUSE OF THE UNION'S REPRESENTATIONAL STATUS THE CENTER WAS
OBLIGATED TO NEGOTIATE WITH THE UNION ON LOCAL MATTERS AFFECTING
PERSONNEL POLICIES AND PRACTICES AND OTHER WORKING CONDITIONS. HOWEVER,
THE CENTER ACKNOWLEDGES ONLY AN OBLIGATION TO "CONSULT" AS OPPOSED TO
"NEGOTIATE" WITH THE UNION, OBVIOUSLY SOMETHING LESS THAN FULFILLING THE
OBLIGATION OF ENGAGING IN A GOOD-FAITH EFFORT TO REACH AGREEMENT.
I CONCLUDE THAT CHANGING CENTER EMPLOYEES' WORK HOURS BY ADOPTING
FLEXTIME IS A MATTER AFFECTING WORKING CONDITIONS OF EMPLOYEES AND IS A
NEGOTIABLE MATTER WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER.
/11/ I FURTHER CONCLUDE THAT THE QUESTIONNAIRE DISTRIBUTED BY THE CENTER
CONTAINED SOME MATTERS WHICH INVOLVED PERSONNEL POLICIES AND PRACTICES
AND MATTERS AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF SECTION
11(A) OF THE ORDER. /12/
INDEED, THE QUESTIONNAIRE ITSELF SOUGHT TO OBTAIN DIRECTLY FROM UNIT
EMPLOYEES THEIR OPINIONS AND SENTIMENTS REGARDING MATTERS, WITHIN THE
SCOPE OF THE COLLECTIVE BARGAINING RELATIONSHIP. SUCH DIRECT
COMMUNICATIONS WITH UNIT EMPLOYEES BREACHES THE OBLIGATION THE CENTER
OWES TO THE EXCLUSIVE REPRESENTATIVE TO DEAL ONLY WITH THE UNION IN SUCH
MATTERS AND "TO TREAT IT AS THE ONLY FORMAL REPRESENTATIVE WHO SPEAKS
FOR ALL UNIT EMPLOYEES." /13/ IN MY VIEW, THE CENTER'S ACTION IN
DISTRIBUTION THE QUESTIONNAIRE TO EMPLOYEES WITHOUT THE CONSENT OF THE
UNION AMOUNTED TO A BYPASS OF THE UNION WHICH UNDERMINED AND IMPAIRED
ITS STATUS AS THE AGENT FOR THE EXCLUSIVE REPRESENTATIVE. THUS, THE
UNION'S SOLE RIGHT TO EXPRESS OPINION AND SENTIMENTS ON BEHALF OF
EMPLOYEES WAS SUBSTANTIALLY ERODED WHEN THE CENTER OBTAINED INDIVIDUAL
EMPLOYEES' VIEWS OF MATTERS APPROPRIATELY BELONGING TO THE EXCLUSIVE
REPRESENTATIVE. IN THE SCHEME OF COLLECTIVE BARGAINING IT IS THE
EXCLUSIVE REPRESENTATIVE (OR ITS AGENT) WHICH SPEAKS ON BEHALF OF
EMPLOYEES USING ITS EVALUATION OF EMPLOYEE SENTIMENT AND SUCH OTHER
MATTERS IT CHOOSES TO TAKE INTO ACCOUNT THAT THE CENTER IS OBLIGATED TO
CONSIDER. WHEN THE UNION IS BYPASSED ON THIS REGARD, BARGAINING, IN
EFFECT, TAKES PLACE DIRECTLY WITH EMPLOYEES AND NOT THROUGH THE
EXCLUSIVE REPRESENTATIVE IN DEROGATION OF THE EXCLUSIVE REPRESENTATIVE'S
RIGHTS. /14/
IN THE CASE HEREIN, THE UNION PARTICIPATED WITH THE FLEXTIME PROPOSAL
COMMITTEE IN THE DEVELOPMENT OF THE QUESTIONNAIRE. /15/ INDEED, THE
UNION WAS PREPARED TO CONSENT TO THE DISTRIBUTION OF A QUESTIONNAIRE.
HOWEVER, WHEN THE CENTER DECIDED TO REJECT THE UNION'S REQUEST FOR THE
ADDITION OF TWO QUESTIONS TO THE QUESTIONNAIRE, THE UNION TIMELY
NOTIFIED THE CENTER THAT IT OPPOSED ITS ISSUANCE. UNDER THESE
CIRCUMSTANCES THE UNION WITHHELD ITS CONSENT TO ALLOW THE CENTER TO
DIRECTLY SOLICIT THE EMPLOYEES' OPINIONS ON COLLECTIVE BARGAINING
MATTERS AND ACCORDINGLY, RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6)
OF THE ORDER BY ISSUING THE QUESTIONNAIRE TO UNIT EMPLOYEES.
I FURTHER CONCLUDE THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6)
OF THE ORDER BY REFUSING THE UNION'S NEGOTIATION DEMANDS OF MAY 13,
1977, SEPTEMBER 28, 1977 AND OCTOBER 11, 1977. THE UNION WAS NOT
OBLIGED TO ACCEPT "CONSULTATION" OR ANYTHING LESS THAN FULL GOOD-FAITH
NEGOTIATION ON THE FLEXTIME DECISION, ITS IMPLEMENTATION AND IMPACT.
RESPONDENT CONTENDS THAT SINCE FLEXTIME GUIDELINES WERE ISSUED AND
CONTROLLED BY HIGHER LEVEL AUTHORITY (OMA), THERE WAS NOTHING LEFT TO
BARGAIN ABOUT AT THE CENTER LEVEL. THIS CONTENTION IS REJECTED. THE
EVIDENCE REVEALS THAT ALL OF THE SIX SERVICE CENTERS DO NOT HAVE
IDENTICAL FLEXTIME PROGRAMS, SO OBVIOUSLY LOCAL CENTER DIFFERENCES WERE
RECOGNIZED AND UNIFORMITY OF PROGRAMS WAS NOT REQUIRED BY OMA.
MOREOVER, THERE HAS BEEN NO SHOWING MADE AS TO COMPELLING NEED TO CHANGE
WORK HOURS TO FLEXTIME, UNIFORMLY APPLIED AT ALL SERVICE CENTERS OR
OTHERWISE. /16/ IN ADDITION, IN ITS OCTOBER 5, 1977 RESPONSE TO THE
UNION'S REQUEST TO NEGOTIATE, THE CENTER ACKNOWLEDGED THE EXISTENCE OF
VARIOUS ITEMS WHICH WERE RESOLVABLE AT THE LOCAL LEVEL WHEN IT INDICATED
IT WOULD LIKE TO "DISCUSS" SUCH MATTERS AS THE LOCATION OF MACHINES, THE
PACKAGE OF MATERIALS TO BE DISTRIBUTED TO EMPLOYEES AND LUNCH BREAK
SCHEDULES.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1) AND (B) OF THE ORDER, I RECOMMEND THAT THE ASSISTANT
SECRETARY ADOPT THE FOLLOWING ORDER DESIGNED TO AFFECTUATE THE PURPOSES
OF EXECUTIVE ORDER 11491, AS AMENDED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT
OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU
OF RETIREMENT AND SURVIVORS INSURANCE, NORTHEASTERN PROGRAM SERVICE
CENTER SHALL:
1. CEASE AND DESIST FROM:
(A) SOLICITING FROM EMPLOYEES REPRESENTED BY THE NATIONAL OFFICE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL COUNCIL
OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THROUGH A QUESTIONNAIRE,
OPINIONS AND SENTIMENTS INVOLVING PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS RELATIVE TO FLEXTIME WORK HOURS
WITHOUT FIRST OBTAINING THE CONSENT OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEE, AFL-CIO, LOCAL UNION 1760, THE AUTHORIZED REPRESENTATIVE OF
THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION.
(B) CHANGING WORK HOURS FROM A STANDARD SCHEDULE TO A FLEXTIME
PROGRAM APPLICABLE TO EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), WITHOUT FIRST
NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL UNION 1760, THE AUTHORIZED REPRESENTATIVE OF THE EXCLUSIVELY
RECOGNIZED LABOR ORGANIZATION, AND AFFORDING IT THE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
DECISION, THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING
SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY
AFFECTED EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST OF LOCAL UNION 1760, THE AUTHORIZED REPRESENTATIVE
OF THE NATIONAL OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE
EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION, RESCIND THE FLEXTIME PROGRAM
INSTITUTED ON NOVEMBER 11, 1977 AND RETURN TO THE PRIOR SYSTEM OF WORK
HOURS OR UPON REQUEST, MEET AND CONFER WITH REGARD TO THE MODIFICATION
THEREOF.
(B) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL UNION 1760, THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL COUNCIL
OF SOCIAL PAYMENT CENTER LOCALS), THE EMPLOYEES' EXCLUSIVE BARGAINING
REPRESENTATIVE, OF ANY INTENDED CHANGE IN EMPLOYEES WORK HOURS AND, UPON
REQUEST, MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE DECISION, THE PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE WILL
HAVE ON ADVERSELY AFFECTED EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(C) POST AT ITS FACILITY AT THE NORTHEASTERN PROGRAM CENTER COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE
NORTHEASTERN PROGRAM SERVICE CENTER AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: 13 DEC 1978
WASHINGTON, D.C.
SJA:DU
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS AND IN ORDER TO EFFECTUATE
THE POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT SOLICIT FROM EMPLOYEES REPRESENTED BY THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THROUGH A
QUESTIONNAIRE, OPINIONS AND SENTIMENTS INVOLVING PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS RELATIVE TO FLEXTIME
WORK HOURS WITHOUT FIRST OBTAINING THE CONSENT OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 1760, THE AUTHORIZED
REPRESENTATIVE OF THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION.
WE WILL NOT CHANGE WORK HOURS FROM A STANDARD SCHEDULE TO A FLEXTIME
PROGRAM APPLICABLE TO EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), WITHOUT FIRST
NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL UNION 1760, THE AUTHORIZED REPRESENTATIVE OF THE EXCLUSIVELY
RECOGNIZED LABOR ORGANIZATION, AND AFFORDING IT THE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
DECISION, THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING
SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY
AFFECTED EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST OF LOCAL UNION 1760, THE AUTHORIZED
REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER
LOCALS) THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION, RESCIND THE
FLEXTIME PROGRAM INSTITUTED ON NOVEMBER 11, 1977 AND RETURN TO THE PRIOR
SYSTEM OF WORK HOURS OR UPON REQUEST MEET AND CONFER WITH REGARD TO THE
MODIFICATION THEREOF.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL UNION 1760, THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EMPLOYEES'
EXCLUSIVE BARGAINING REPRESENTATIVE, OF ANY INTENDED CHANGE IN EMPLOYEES
WORK HOURS AND, UPON REQUEST, MEET AND CONFER, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT SUCH CHANGE WILL
HAVE ON ADVERSELY AFFECTED EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
AGENCY OR ACTIVITY
DATED: . . . BY: . . .
SIGNATURE
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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICE ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE ADDRESS
IS: ROOM 3515-- 1515 BROADWAY, NEW YORK, NEW YORK 10036.
/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 E.O. 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/ COMPLAINT FILED AUGUST 24, 1977.
/3/ COMPLAINT FILED JANUARY 5, 1978.
/4/ RESPONDENT CONTENDS THAT THE OBLIGATION OWED TO THE UNION WAS
LIMITED ONLY TO "CONSULTATION" RATHER THAN "NEGOTIATION". THIS MATTER
WAS PREVIOUSLY THROUGHLY LITIGATED BY THE PARTIES IN DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI,
NORTHEASTERN PROGRAM SERVICE CENTER, A/SLMR NO. 1101. IN THAT CASE THE
ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS REGARDING THE UNION'S REPRESENTATIONAL
STATUS CONCERNING MATTERS AFFECTING THE NORTHEASTERN PROGRAM SERVICE
CENTER. THIS ISSUE HAVING BEEN RESOLVED BY THE ASSISTANT SECRETARY,
FURTHER TREATMENT THEREOF IS UNWARRANTED HEREIN.
/5/ "FLEXTIME" IS A SYSTEM OF WORKING HOURS WHICH ALLOWS EMPLOYEES TO
CHOOSE THEIR STARTING TIMES, SUBJECT TO CERTAIN LIMITATIONS, ON A
DAY-TO-DAY BASIS.
/6/ REICH WAS NOT AUTHORIZED TO NEGOTIATE OR CONSULT WITH THE UNION
ON BEHALF OF MANAGEMENT ON THIS OR ANY OTHER MATTER IN A
LABOR-MANAGEMENT RELATIONS CONTEXT. HOWEVER, COPIES OF THIS MEMORANDUM
WERE SENT TO OFFICIALS OF THE CENTER RESPONSIBLE FOR LABOR-MANAGEMENT
RELATIONS.
/7/ MULTIPLE CHOICE ANSWERS WERE PROVIDED FOR EACH QUESTION.
/8/ BERGMAN DESCRIBED HIS MEETINGS AS "FORMAL CONSULTATIONS" WHICH HE
DEFINED AS AN EXCHANGE OF VIEWS AND "HEARING OUT FULLY" THE UNION'S
POSITION AND THEN IMPLEMENTING THE MATTER UNDER CONSIDERATION IF NO
AGREEMENT WAS REACHED. ACCORDING TO BERGMAN, NEGOTIATION WOULD ENTAIL
MANAGEMENT GOING TO A HIGHER LEVEL TO RESOLVE A DISPUTED MATTER, PERHAPS
EVEN TO THE FEDERAL SERVICE IMPASSES PANEL.
/9/ THE MEMORANDUM NOTED THAT A COPY OF THIS MEMORANDUM WAS SENT TO
"COMMITTEE MEMBERS" OF WHICH ARMET WAS A PART, AND NO INDICATION OF
DISAGREEMENT WITH THE MEMORANDUM WAS RECEIVED BY THE CENTER.
/10/ THERE IS NO EVIDENCE OF FURTHER COMMUNICATION BETWEEN THE
PARTIES PRIOR TO THE DATE OF FLEXTIME IMPLEMENTATION.
/11/ CF. SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE
SERVICE, ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, 6 A/SLMR 237
(A/SLMR NO. 652).
/12/ CF. VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER, LOS
ANGELES, CALIFORNIA, 4 A/SLMR 309 (A/SLMR NO. 388.
/13/ DEPARTMENT OF THE NAVY, NAVAL AIR STATION, FALLON, NEVADA, FLRC
NO. 74A-80 (OCTOBER 1975), REPORT NO. 87 AND 4 A/SLMR 590 (A/SLMR NO.
432).
/14/ IBID.
/15/ THE QUESTIONNAIRE SENT TO EMPLOYEES WAS ESSENTIALLY A
REPRODUCTION OF A QUESTIONNAIRE SPECIMEN PROVIDED IN THE OMA GUIDELINES.
/16/ SEE SECTION 11(A) OF THE ORDER.