[ v09 p229 ]
09:0229(33)CA
The decision of the Authority follows:
9 FLRA No. 33
SOCIAL SECURITY ADMINISTRATION
MID-AMERICA SERVICE CENTER
KANSAS CITY, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336, AFL-CIO
Charging Party
Case No. 7-CA-29
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THE JUDGE FURTHER FOUND THAT THE RESPONDENT HAD NOT
ENGAGED IN OTHER ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDED
DISMISSAL OF THE COMPLAINT WITH RESPECT TO THEM. NO EXCEPTIONS WERE
FILED.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
ORDER /1/
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE SOCIAL SECURITY ADMINISTRATION, MID-AMERICA
SERVICE CENTER, KANSAS CITY, MISSOURI, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY ALTERING OR CHANGING ESTABLISHED PAST PRACTICES AS
THEY EXISTED PRIOR TO
MARCH 12, 1979 WITH RESPECT TO RETIREMENT RECEPTIONS, INTER-MODULE
COLLECTION OF DONATIONS,
EMPLOYEE ACTIVITIES DURING BREAKS, THE DISPLAY OF FOOD AND
REFRESHMENTS AT BREAKS AND AT OTHER
THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE AUTHORIZED
LUNCHEON PERIOD, THE
ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH, OR ANY OTHER CONDITION
OF EMPLOYMENT, WITHOUT
FIRST NOTIFYING LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, AS THE
AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS),
THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, AND, UPON REQUEST,
BARGAINING IN GOOD FAITH TO THE
FULL EXTENT CONSONANT WITH LAW.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESCIND AND REVOKE MAMPSC GUIDE 7-1, "SOCIAL ACTIVITIES AT THE
WORKSITE," TO THE EXTENT
SUCH GUIDE CHANGED ESTABLISHED PAST RETIREMENT RECEPTIONS,
INTER-MODULE COLLECTION OF
DONATIONS, EMPLOYEE ACTIVITIES DURING BREAKS, THE DISPLAY OF FOOD AND
REFRESHMENTS AT BREAKS
AND AT OTHER THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE
AUTHORIZED LUNCHEON
PERIOD, AND ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH.
(B) NOTIFY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, AS THE
AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION PAYMENT
CENTER LOCALS), THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, OF ANY
PROPOSED CHANGE IN
ESTABLISHED PAST PRACTICES WITH RESPECT TO RETIREMENT RECEPTIONS,
INTER-MODULE COLLECTION OF
DONATIONS, EMPLOYEE ACTIVITIES DURING BREAKS, THE DISPLAY OF FOOD AND
REFRESHMENTS AT BREAKS
AND AT OTHER THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE
AUTHORIZED LUNCHEON
PERIOD, THE ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH, OR ANY OTHER
TERM OR CONDITION OF
EMPLOYMENT AND, UPON REQUEST, BARGAIN IN GOOD FAITH TO THE FULL
EXTENT CONSONANT WITH LAW.
(C) POST AT ITS FACILITIES AT THE MID-AMERICA SERVICE CENTER, COPIES
OF THE ATTACHED NOTICE
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 MID-AMERICA
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 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR OF REGION VII, 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.
IT IS HEREBY FURTHER ORDERED THAT THE ALLEGATIONS CONTAINED IN THE
COMPLAINT IN CASE NO. 7-CA-29 RELATING TO ADMINISTRATIVE TIME FOR
LUNCHEON PREPARATION AND CLEAN-UP, EMPLOYEES' DRESS CODE, AND THE
ALLEGED REFUSAL TO COOPERATE WITH THE FEDERAL SERVICE IMPASSES PANEL,
BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 24, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
PRACTICES AS THEY EXISTED PRIOR TO MARCH 12, 1979 WITH RESPECT TO
RETIREMENT RECEPTIONS, INTER-MODULE COLLECTION OF DONATIONS, EMPLOYEE
ACTIVITIES DURING BREAKS, THE DISPLAY OF FOOD AND REFRESHMENTS AT BREAKS
AND AT OTHER THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE
AUTHORIZED LUNCHEON PERIOD, THE ORDERING OUT AND DELIVERY OF FOOD FOR
LUNCH, OR ANY OTHER TERM OR CONDITION OF EMPLOYMENT, WITHOUT FIRST
NOTIFYING LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, AS THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL COUNCIL
OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF OUR EMPLOYEES, AND, UPON REQUEST, BARGAINING IN GOOD
FAITH TO THE FULL EXTENT CONSONANT WITH LAW.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND AND REVOKE MAMPSC GUIDE 7-1, "SOCIAL ACTIVITIES AT
THE WORKSITE," TO THE EXTENT SUCH GUIDE CHANGED ESTABLISHED PAST
PRACTICES AS THEY EXISTED PRIOR TO MARCH 12, 1979 WITH RESPECT TO
RETIREMENT RECEPTIONS, INTER-MODULE COLLECTION OF DONATIONS, EMPLOYEE
ACTIVITIES DURING BREAKS, THE DISPLAY OF FOOD AND REFRESHMENTS AT BREAKS
AND AT OTHER THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE
AUTHORIZED LUNCHEON PERIODS, AND THE ORDERING OUT AND DELIVERY OF FOOD
FOR LUNCH.
WE WILL NOTIFY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, AS THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, OF ANY PROPOSED CHANGE IN
ESTABLISHED PAST PRACTICES WITH RESPECT TO RETIREMENT RECEPTIONS,
INTER-MODULE COLLECTION OF DONATIONS, EMPLOYEE ACTIVITIES DURING BREAKS,
THE DISPLAY OF FOOD AND REFRESHMENTS AT BREAKS AND AT OTHER THAN
LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE AUTHORIZED LUNCHEON
PERIODS, THE ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH, AND ANY OTHER
TERM OR CONDITION OF EMPLOYMENT, AND, UPON REQUEST, BARGAIN IN GOOD
FAITH TO THE FULL EXTENT CONSONANT WITH LAW.
(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 DIRECTOR, REGION VII, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: FEDERAL BUILDING AND U.S. CUSTOMS HOUSE, 1531 STOUT STREET,
SUITE 301, DENVER, COLORADO 80202, AND WHOSE TELEPHONE NUMBER IS: (816)
374-2199.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DANIEL H. GREEN, ESQUIRE
FOR THE RESPONDENT
JOHN J. RUBIN, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. SEC. 7101 ET SEQ., (THE STATUTE), AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL
DIRECTOR, SEVENTH REGION, FEDERAL LABOR RELATIONS AUTHORITY, KANSAS
CITY, MISSOURI, AGAINST THE SOCIAL SECURITY ADMINISTRATION, MID-AMERICA
SERVICE CENTER, KANSAS CITY, MISSOURI (RESPONDENT OR CENTER).
THE COMPLAINT ALLEGED IN SUBSTANCE, THAT RESPONDENT REFUSED TO
NEGOTIATE WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336,
AFL-CIO (THE UNION) CONCERNING THE ISSUANCE OF MAMPSC GUIDE 7-1.
FURTHER, THAT ON OR ABOUT MARCH 12, 1979, AND CONTINUING THEREAFTER,
RESPONDENT UNILATERALLY CHANGED CONDITIONS OF EMPLOYMENT BY IMPLEMENTING
SAID GUIDE WITHOUT AFFORDING THE UNION THE OPPORTUNITY TO BARGAIN ON THE
SUBJECTS CONTAINED THEREIN, INCLUDING: (1) RETIREMENT ACTIVITIES DURING
WORK HOURS; (2) ADMINISTRATIVE TIME FOR LUNCHEON PREPARATION AND
CLEANUP; (3) INTER-MODULE COLLECTIONS OF DONATIONS; (4) DISPLAY OF
FOOD AT BREAKS; (5) DISPLAY OF REFRESHMENTS AT OTHER THAN LUNCH
PERIODS; (6) EMPLOYEE DRESS CODE; (7) CATERING OF LUNCHEONS; AND (8)
ORDERING OUT AND PICKING UP FOOD BY MODULES. THE COMPLAINT ALSO ALLEGED
THAT RESPONDENT REFUSED TO COOPERATE WITH IMPASSE PROCEDURES ON OR
ABOUT
MARCH 8, 1979 BY FAILING TO PARTICIPATE WHEN THE SERVICES OF THE FEDERAL
SERVICE IMPASSES PANEL WERE REQUESTED BY THE UNION. THE COMPLAINT
ALLEGED THAT BY THESE ACTS THE RESPONDENT HAD VIOLATED SECTIONS
7116(A)(1), (5), (6), AND (8) OF THE STATUTE. RESPONDENT DENIED THE
ALLEGATIONS.
A HEARING WAS HELD IN THIS MATTER IN KANSAS CITY, MISSOURI. THE
RESPONDENT AND THE GENERAL COUNSEL WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN, THE NATIONAL OFFICE OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (NATIONAL COUNCIL OF SOCIAL
SECURITY PAYMENT CENTER LOCALS), OF WHICH THE UNION HEREIN, A LABOR
ORGANIZATION, IS AN AGENT AND CONSTITUENT LOCAL REPRESENTATIVE, HAS BEEN
RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE FOR A UNIT CONSISTING OF ALL
NON-SUPERVISORY EMPLOYEES (INCLUDING PROFESSIONALS) IN ALL THE SOCIAL
SECURITY ADMINISTRATION PROGRAM SERVICE CENTERS, EXCLUDING MANAGEMENT
OFFICIALS AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY.
2. AT ALL TIMES SINCE JUNE 10, 1969, LOCAL 1336, AFGE HAS BEEN THE
EXCLUSIVE REPRESENTATIVE OR THE AGENT OF THE EXCLUSIVE REPRESENTATIVE OF
THE EMPLOYEES IN THE UNIT DESCRIBED ABOVE AND EMPLOYED AT RESPONDENT'S
KANSAS CITY, MISSOURI MID-AMERICA PROGRAM SERVICE CENTER.
3. RESPONDENT HAS APPROXIMATELY 2200 EMPLOYEES. MOST OF THE WORK IS
ACCOMPLISHED IN 42 MODULES OF 50 EMPLOYEES EACH. EACH MODULE IS HEADED
BY A MANAGER AND TWO ASSISTANTS. ABOVE THE MODULE ORGANIZATION ARE
SEVEN SECTION CHIEFS WITH RESPONSIBILITY FOR SIX MODULES EACH, TWO
BRANCH CHIEFS, THE DIRECTOR OF OPERATIONS, AND THE DIRECTOR.
4. THE AUTHORIZED DAILY HOURS OF WORK HAS CONSISTENTLY INCLUDED A 30
MINUTE LUNCH PERIOD AND TWO 15 MINUTE REST PERIODS OR BREAKS. BREAKS
ARE CONSIDERED OFFICIAL TIME AND EMPLOYEES ARE CONSIDERED TO BE ON DUTY.
5. IMMEDIATE SUPERVISORS AND ALL SUPERVISORY POSITIONS ABOVE THEM
HAVE CONSISTENTLY BEEN AUTHORIZED TO EXCUSE BRIEF ABSENCES AND TARDINESS
FROM DUTY OF LESS THAN AN HOUR AND TO CONSIDER SUCH ABSENCES AS TIME ON
DUTY WHEN THE REASONS APPEARED TO BE ADEQUATE. ABSENCES, OR TARDINESS
OF MORE THAN ONE HOUR, ARE TO BE CHARGED TO LEAVE.
6. PRIOR TO MARCH 12, 1979, SOME MODULE SUPERVISORS EXCUSED ONE OR
MORE EMPLOYEES FROM DUTY FOR FIVE TO 30 MINUTES PRIOR TO THE BEGINNING
OF THE ALLOTED LUNCH PERIOD, AND FOR A SIMILAR PERIOD AFTER THE
LUNCHEON, SO THAT SUCH EMPLOYEES COULD PREPARE FOR, AND CLEAN UP AFTER,
SPECIAL LUNCHEON FUNCTIONS FOR SUCH OCCASIONS AS HOLIDAYS, BIRTHDAYS,
RETIREMENTS, SHOWERS, AND RELATED CELEBRATIONS. SUCH LUNCHEONS OFTEN
RAN OVER THE ALLOTED 30 MINUTE PERIOD, AND SUCH SUPERVISORS EXCUSED THE
EXCESS TIME FOR EMPLOYEES IN THEIR MODULE.
7. PRIOR TO MARCH 12, 1979, SOME MODULE SUPERVISORS EXCUSED
EMPLOYEES FROM DUTY BEFORE AND AFTER BREAKS IN ORDER TO PREPARE FOOD AND
DRINK WHEN SPECIAL CELEBRATIONS OF BIRTHDAY PARTIES, SHOWERS, ETC., WERE
SCHEDULED DURING THE BREAKS. SUCH CELEBRATIONS OFTEN CAUSED THE BREAKS
TO RUN OVER THE ALLOTED 15 MINUTE PERIOD, AND SUCH SUPERVISORS EXCUSED
THE EXCESS TIME FOR EMPLOYEES IN THE MODULE.
8. PRIOR TO MARCH 12, 1979, THE DIRECTOR OF OPERATIONS HELD STAFF
MEETINGS WITH SECTION CHIEFS AND BRANCH CHIEFS AND ORALLY REMINDED THEM
ON AT LEAST A MONTHLY BASIS TO RESTRICT EMPLOYEE LUNCHES TO 30 MINUTES
AND BREAKS TO 15 MINUTES. SECTION CHIEFS AND/OR BRANCH CHIEFS, IN TURN,
WOULD MEET WITH THEIR RESPECTIVE MANAGER TO DISSEMINATE THE INFORMATION.
9. MAMPSC GUIDE 7-1, IMPLEMENTED MARCH 12, 1979, NOTED THAT THE
LUNCH TIME FOR SSA EMPLOYEES IS "NO MORE THAN A 1/2 HOUR PERIOD.
CONSEQUENTLY, EMPLOYEES MUST CONFINE THEIR PREPARATION, EATING AND
CLEANING UP TIME TO THIS LUNCH PERIOD."
10. SINCE THE ISSUANCE OF MAMPSC GUIDE 7-1 LUNCHES AND BREAKS HAVE
BEEN CONFINED TO THE AUTHORIZED TIMES AND ADMINISTRATIVE OR OFFICIAL
TIME FOR LUNCHEON PREPARATION AND CLEAN-UP, OR BREAK PREPARATION AND
CLEAN-UP HAS NOT BEEN PERMITTED.
CATERING OF LUNCHEONS
11. PRIOR TO MARCH 12, 1979 THE FOOD FOR SPECIAL OCCASION LUNCHEON
FUNCTIONS FOR UNIT EMPLOYEES WAS OFTEN BROUGHT IN AND SET UP BY A
CATERING ESTABLISHMENT, OR RESTAURANT LOCATED OUTSIDE OF RESPONDENT'S
VARIOUS BUILDINGS, OR BY THE IN-BUILDING CAFETERIA.
12. MAMPSC GUIDE 7-1, IMPLEMENTED MARCH 12, 1979, PROVIDED THAT
"OUTSIDE CATERING (INCLUDING IN-BUILDING CAFETERIA WILL NOT BE
PERMITTED."
13. SINCE THE ISSUANCE OF MAMPSC GUIDE 7-1 OUTSIDE CATERING OF
LUNCHEONS HAS BEEN SEVERLY CURTAILED, OR, IN MOST CASES, COMPLETELY
ELIMINATED.
ORDERING OUT AND HAVING FOOD DELIVERED
14. PRIOR TO MARCH 12, 1979 MANY UNIT EMPLOYEES CONSISTENTLY
PARTICIPATED IN THE "ORDERING OUT" OF LUNCHEONS, WHEREBY GROUPS OF
EMPLOYEES WOULD AGREE TOGETHER TO ORDER FOOD FOR LUNCH FROM A
PARTICULAR
OUTSIDE ESTABLISHMENT. THE FOOD ORDER WOULD EITHER BE PICKED UP BY A
UNIT EMPLOYEE AND BROUGHT BACK TO THE WORK AREA, OR DELIVERED BY THE
OUTSIDE ESTABLISHMENT TO THE WORK AREA.
15. SINCE THE ISSUANCE OF MAMPSC GUIDE 7-1 ON MARCH 12, 1979 THE
PRACTICE OR ORDERING OUT AND HAVING FOOD DELIVERED BY OUTSIDE
ESTABLISHMENTS HAS BEEN SEVERELY CURTAILED, OR, IN MOST CASES,
COMPLETELY ELIMINATED.
SPECIAL ACTIVITIES DURING BREAK, DISPLAY OF FOOD AT BREAK AND
AT OTHER THAN LUNCHEON PERIODS
16. PRIOR TO MARCH 12, 1979, MANY, IF NOT MOST, UNIT EMPLOYEES
ROUTINELY PARTICIPATED OR ENGAGED IN CELEBRATIONS OF VARIOUS TYPES
DURING MORNING AND AFTERNOON BREAK PERIODS FOR SUCH OCCASIONS AS BABY
SHOWERS, BIRTHDAY PARTIES, AND EMPLOYEE RESIGNATION AND REASSIGNMENTS.
DURING THIS TIME FOOD AND DRINK WOULD BE SERVED. OFTEN THE LEFT OVER
FOOD AND DRINK SERVED AT THESE LUNCHEON AND BREAK FUNCTIONS WOULD REMAIN
ON DISPLAY IN THE WORK AREAS FOR CONSUMPTION BY UNIT EMPLOYEES DURING
THE REST OF THE REGULAR DUTY TIME.
17. MAMPSC GUIDE 7-1, IMPLEMENTED MARCH 12, 1979, PROVIDED THAT, "A
DISPLAY OF REFRESHMENTS WILL NOT BE PERMITTED BEFORE OR AFTER THE
ASSIGNED LUNCH TIME." THE GUIDE ALSO PROVIDED THAT, "ANY OTHER
ACTIVITIES NOT COVERED OR AUTHORIZED ABOVE (E.G. BABY SHOWERS, BIRTHDAY
PARTIES, ETC.) ARE NOT AUTHORIZED TO BE HELD DURING REGULAR DUTY TIME."
18. SINCE THE IMPLEMENTATION OF THE MAMPSC GUIDE SPECIAL
CELEBRATIONS DURING THE BREAK PERIOD AND THE DISPLAY OF REFRESHMENTS AT
OTHER THAN LUNCH TIME HAS BEEN SEVERELY CURTAILED, OR ELIMINATED.
INTER-MODULE COLLECTIONS OF DONATIONS
19. PRIOR TO MARCH 12, 1979 ENVELOPES REQUESTING MONETARY DONATIONS
FOR EMPLOYEES UNDERGOING RETIREMENT, RECENT DEATH OF FAMILY MEMBERS, OR
PERSONAL TRAGEDIES WERE ROUTINELY CIRCULATED TO THE DESKS OF UNIT
EMPLOYEES, OR TO THEIR WORK AREAS. SUCH COLLECTION ENVELOPES WOULD BE
CIRCULATED FREQUENTLY AND ROUTINELY WITHIN THE INITIATING COMPONENT'S
WORK AREA AND THROUGHOUT OTHER WORK AREAS.
20. MAMPSC GUIDE 7-1, IMPLEMENTED MARCH 12, 1979 PROVIDED THAT THE
CIRCULATION OF COLLECTION ENVELOPES TO COMPONENTS OUTSIDE THE INITIATING
COMPONENT'S AREA WAS NOT AUTHORIZED.
21. SINCE MARCH 12, 1979 THE CIRCULATION OF COLLECTION ENVELOPES TO
COMPONENTS OUTSIDE THE INITIATING COMPONENT'S AREA HAS BEEN ELIMINATED.
EMPLOYEE DRESS CODE - COSTUMES
22. PRIOR TO MARCH 12, 1979 A SMALL PERCENTAGE OF THE 2200 EMPLOYEES
OF THE RESPONDENT WOULD WEAR COSTUMES DURING DUTY TIME IN CELEBRATION OF
SUCH HOLIDAY FUNCTIONS AS HALLOWEEN, THANKSGIVING, CHRISTMAS, AND ST.
PATRICK'S DAY. ONE OR MORE EMPLOYEES WERE OBSERVED ON SOME OF THIESE
OCCASIONS DRESSED IN SANTA CLAUS, ELF, AND PILGRIM COSTUMES. ONE MODULE
MANAGER ONCE WORE A PILGRIM COSTUME. ONE OR TWO EMPLOYEES ALSO ONCE
WENT THROUGH VARIOUS MODULES AT HALLOWEEN WEARING GORILLA MASKS OR
CLOWN
COSTUMES.
23. THE SSA GUIDE ON EMPLOYEE CONDUCT, ISSUED IN SEPTEMBER 1978 AND
MADE AVAILABLE TO UNIT EMPLOYEES, PROVIDED, IN PART, THAT "AN EMPLOYEE
SHALL OBSERVE STANDARD OF DRESS AND APPEARANCE ACCEPTABLE IN THE
COMMUNITY AND SUITABLE TO THE WORK ENVIRONMENT."
24. MAMPSC GUIDE 7-1, IMPLEMENTED ON MARCH 12, 1979, PROVIDED, IN
PART, THAT, "EXCEPT IN RARE SITUATIONS REQUIRING THE DIRECTOR OF
MANAGEMENT'S APPROVAL, EMPLOYEES ARE PROHIBITED FROM WEARING "COSTUMES"
DURING WORKING HOURS.
25. SINCE THE IMPLEMENTATION OF THE MAMPSC GUIDE, NO UNIT EMPLOYEES
HAVE BEEN OBSERVED WEARING COSTUMES.
RETIREMENT ACTIVITIES DURING DUTY HOURS
26. PRIOR TO MARCH 12, 1979 RETIREMENT RECEPTIONS WERE HELD FOR
RETIRING EMPLOYEES. THE CONFERENCE ROOM WAS RESERVED. ONE OR TWO
EMPLOYEES FROM THE RETIREE'S UNIT WOULD BE PERMITTED OFFICIAL TIME TO
DECORATE THE ROOM, SERVE PUNCH AND CAKE, AND CLEAN UP AFTERWARDS. THE
RECEPTIONS WERE USUALLY SCHEDULED FOR TWO HOURS IN THE AFTERNOON IN
ORDER TO ACCOMODATE STAGGERED BREAK PERIODS AND ALLOW THE RETIREE TO BE
GREETED BY FELLOW EMPLOYEES. EMPLOYEES FROM THROUGHOUT THE CENTER, WHO
WERE ACQUAINTED WITH THE RETIREE AND WERE GRANTED PERMISSION BY THE
SUPERVISOR, WERE PERMITTED TO ATTEND THE RECEPTION DURING THEIR BREAK
PERIOD. SUCH RECEPTIONS WERE USUALLY ATTENDED BY A LARGE NUMBER OF UNIT
EMPLOYEES AND SUPERVISORS. THESE RETIREMENT RECEPTIONS OCCURRED NOT
MORE THAN EIGHT TIMES A YEAR PRIOR TO 1978. DURING 1978 THERE WERE AS
MANY AS 20 RETIREMENT RECEPTIONS A YEAR AND THE NUMBER WAS EXPECTED TO
INCREASE.
27. MAMPSC GUIDE 7-1, IMPLEMENTED ON MARCH 12, 1979, PROVIDED THAT,
"RETIREMENT RECEPTIONS AND PARTIES WILL NOT BE PERMITTED IN THE WORK
AREA DURING DUTY TIME. LUNCHEONS FOR RETIREMENT PURPOSES WILL BE
SUBJECT TO THE ABOVE STATED POLICY (GOVERNING LUNCHEONS)."
28. SINCE THE IMPLEMENTATION OF THE MAMPSC GUIDE, RETIREMENT
LUNCHEONS HAVE BEEN LIMITED TO THE EMPLOYEE'S OWN WORK PLACE DURING THE
30 MINUTE LUNCH PERIOD. NO RETIREMENT RECEPTIONS OF THE TYPE OCCURRING
PRIOR TO MARCH 12, 1979 HAVE BEEN PERMITTED.
CONSULTATION/BARGAINING CONCERNING MAMPSC GUIDE 7-1
29. ON DECEMBER 5, 1978 RESPONDENT TRANSMITTED TO THE UNION MAMPSC
GUIDE 7-1, "SOCIAL ACTIVITIES AT THE WORKSITE" IN DRAFT FORM. THE UNION
IMMEDIATELY PREPARED A MEMORANDUM TO RESPONDENT REQUESTING NEGOTIATIONS
ON THE PROPOSED ISSUANCE OF THE GUIDE. THE PARTIES AGREED TO MEET ON
FEBRUARY 8, 1979.
30. AT THE FEBRUARY 8, 1979 MEETING, THE PARTIES DISCUSSED THE
LANGUAGE AND CONTENT OF THE TRANSMITTAL SHEET ATTACHED TO THE SUBJECT
GUIDE AND THE LANGUAGE AND CONTENT OF THE PROPOSED GUIDE ITSELF. THE
UNION CONCEDED MANAGEMENT'S RIGHT TO CURTAIL SUCH ACTIVITIES AS THE
WEARING OF GORILLA COSTUMES BY UNIT EMPLOYEES, BUT OPPOSED ISSUANCE OF
THE GUIDE ITSELF. THE UNION ORALLY ADVANCED TWO PROPOSALS: (1) NO
CHANGE IN EXISTING CONDITIONS OF EMPLOYMENT; AND (2) IN THE
ALTERNATIVE, THE INSTITUTION OF A FLEX BAND AT LUNCH TIME.
31. RESPONDENT TRANSMITTED TO THE UNION ITS FINAL PROPOSED VERSION
OF THE GUIDE ON MARCH 5, 1979, WHICH INDICATED A PROPOSED IMPLEMENTATION
DATE OF MARCH 12, 1979. THE UNION REQUESTED AND WAS GRANTED A SECOND
MEETING ON MARCH 8, 1979.
32. THE MARCH 8, 1979 MEETING WAS VERY BRIEF AND CONSISTED OF THE
UNION PRESENTING RESPONDENT WITH WRITTEN PROPOSALS CONCERNING THE
SUBJECT GUIDE WHICH WERE IDENTICAL TO THOSE RAISED ORALLY AT THE
FEBRUARY 8, 1979 MEETING. RESPONDENT REPLIED THAT MANAGEMENT HAD
CONSIDERED THE UNION'S PREVIOUS PROPOSALS AND THE WRITTEN PROPOSALS WERE
NOTHING NEW. AT THIS POINT, REGINALD T. HUEY, UNION EXECUTIVE VICE
PRESIDENT, USED THE TELEPHONE TO CALL THE LOCAL OFFICE OF THE FEDERAL
MEDIATION AND CONCILIATION SERVICE (FMCS). HE ADVISED FMCS THAT THE
PARTIES WERE INVOLVED IN NEGOTIATIONS AND NEEDED ASSISTANCE. ROBERT D.
PACK, RESPONDENT'S LABOR RELATIONS SPECIALIST, ADVISED MR. HUEY THAT,
"WE'RE NOT NEGOTIATING, WE'RE CONSULTING." MR. HUEY THEN LEFT MR.
PACK'S OFFICE AFTER HANDING HIM A TYPED FMCS FORM.
33. MR. PACK RECEIVED SEVERAL PHONE CALLS FROM FMCS COMMISSIONER
CALVIN HOGUE THAT DAY AND LATER FURNISHED MR. HOGUE ALL THE RELEVANT AND
PERTINENT DOCUMENTS WHICH HE HAD REQUESTED. UPON BEING ADVISED THAT THE
FMCS COULD DO NOTHING FURTHER, MR. HUEY PREPARED A REQUEST TO THE
FEDERAL SERVICE IMPASSE PANEL (FSIP).
34. THE FOLLOWING DAY, MARCH 9, 1979, MR. PACK RECEIVED A COPY OF
THE UNION'S REQUEST OF THE FSIP FOR ASSISTANCE. RESPONDENT IMPLEMENTED
THE SUBJECT GUIDE ON MARCH 12, 1979 AND CONSIDERED IT IN FULL FORCE AND
EFFECT FROM THAT DATE ONWARD. ON OR ABOUT MARCH 25, 1979, MR. PACK
RECEIVED FORMAL NOTICE FROM THE FSIP THAT A REQUEST FOR THEIR SERVICES
HAD BEEN FILED. RESPONDENT FURNISHED TO THE FSIP ALL REQUESTED
INFORMATION. SUBSEQUENTLY, THE UNION FURNISHED TO THE FSIP ALL
REQUESTED INFORMATION. SUBSEQUENTLY, THE UNION WITHDREW ITS REQUEST FOR
FSIP ASSISTANCE, AND RESPONDENT WAS SO NOTIFIED. IN THE INTERVENING
PERIOD, THE INSTANT UNFAIR LABOR PRACTICE CHARGE WAS FILED.
35. AT ALL TIMES MATERIAL HEREIN THE ABOVE NAMED PARTIES WERE
GOVERNED BY ONE OF TWO NATIONAL MASTER COLLECTIVE BARGAINING AGREEMENTS.
THE 1974 NATIONAL MASTER AGREEMENT PROVIDED IN ARTICLE 2, SECTION E
THAT, "THE PROGRAM CENTER WILL CONSULT WITH ITS RESPECTIVE LOCAL ON
MATTERS WITHIN THE AUTHORITY OF THE REGIONAL REPRESENTATIVE RELATING TO
PERSONNEL POLICIES, PRACTICES, AND WORKING CONDITIONS." ACCORDINGLY, IN
JANUARY 1979 RESPONDENT AND THE UNION FORMALIZED THEIR "CONSULTATION
PRACTICES" BY AGREEING AS TO THE LEVELS OF MANAGEMENT AND THE UNION TO
BE INVOLVED IN "CONSULTATION" AND THE FORMALITY OF THE REQUESTS. THE
WORDS "CONSULT" OR "CONSULTATION" WERE NOT OTHERWISE DEFINED. THE 1978
NATIONAL MASTER AGREEMENT DID NOT CONTAIN ANY DESCRIPTION OF THE LOCAL
BARGAINING ARRANGEMENT, BECAUSE THAT ISSUE WAS SUBJECT TO REOPENING AS
SOON AS ITS NEGOTIABILITY WAS FINALLY DETERMINED. FOLLOWING A
NEGOTIABILITY DETERMINATION, THE MATTER WAS BEFORE THE FEDERAL SERVICE
IMPASSES PANEL IN MARCH 1979. AT THIS TIME, RESPONDENT WAS INSTRUCTED
TO FOLLOW THE PRIOR CONTRACT WITH RESPECT TO ITS DEALINGS WITH THE
UNION.
DISCUSSIONS, CONCLUSIONS, AND RECOMMENDATIONS
THE GENERAL COUNSEL ALLEGES THAT RESPONDENT UNILATERALLY CHANGED PAST
PRACTICES RISING TO THE LEVELS OF CONDITIONS OF EMPLOYMENT IN EIGHT
AREAS BY ISSUING MAMPSC GUIDE 7-1.
IN ORDER TO CONSTITUTE THE ESTABLISHMENT BY PRACTICE OF A TERM AND
CONDITION OF EMPLOYMENT THE PRACTICE MUST BE CONSISTENTLY EXERCISED FOR
AN EXTENDED PERIOD OF TIME AND FOLLOWED BY BOTH PARTIES, OR FOLLOWED BY
ONE PARTY AND NOT CHALLENGED BY THE OTHER OVER A SUBSTANTIALLY LONG
DURATION. CF. DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER,
NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980).
BASED ON THE ABOVE FINDINGS AND THE ENTIRE RECORD, I CONCLUDE UNDER
THIS CRITERIA THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT ESTABLISH
THE EXISTENCE OF A PAST PRACTICE THROUGHOUT THE CENTER WITH REGARD TO
THE GRANTING OF OFFICIAL OR ADMINISTRATIVE TIME FOR LUNCHEONS AND BREAKS
EXTENDING OVER 30 AND 15 MINUTES, RESPECTIVELY, OR FOR THE PREPARATION
AND CLEAN-UP OF SUCH LUNCHEONS AND CELEBRATIONS DURING BREAKS. SOME
MODULE SUPERVISORS DID EXCUSE EMPLOYEES FROM DUTY FOR SUCH ACTIVITIES,
BUT HIGHER MANAGEMENT AT THE CENTER CONTINUALLY REITERATED THAT THE
LUNCH PERIOD WAS LIMITED TO 30 MINUTES AND BREAKS TO 15 MINUTES AND
SOUGHT TO HAVE THE SUPERVISORS ENFORCE THESE LIMITS. THUS, MAMPSC GUIDE
7-1, BY CONFINING THE PREPARATION, EATING AND CLEANING UP OF LUNCHEONS
TO 30 MINUTES MERELY REAFFIRMED EXISTING PERSONNEL POLICIES AND
PRACTICES AT THE CENTER.
SIMILARLY, A PREPONDERANCE OF THE EVIDENCE DOES NOT ESTABLISH THE
EXISTENCE OF A PAST PRACTICE WHEREBY UNIT EMPLOYEES CONSISTENTLY WORE
COSTUMES FOR HOLIDAY CELEBRATIONS DURING WORKING HOURS. SUCH INCIDENTS
AS ARE REFLECTED IN THE RECORD ARE PROPERLY DEEMED ISOLATED OCCURRENCES
BY A SMALL NUMBER OF EMPLOYEES AMONG THE 2200 EMPLOYEES AT THE CENTER.
THESE INCIDENTS DO NOT PROVE THE EXISTENCE OF A RECOGNIZABLE WORKING
CONDITION. A REASONABLE PERSON WOULD NOT VIEW THESE ISOLATED INCIDENTS
AS REFLECTING A CONSISTENT PATTERN THAT SUGGESTS REOCCURRENCE BASED ON
DESIGN AS DISTINGUISHED FROM REOCCURRENCE BASED ON LUCK OR ONE-TIME
AFFAIRS. THUS, MAMPSC GUIDE 7-1, BY PROHIBITING THE WEARING OF COSTUMES
DURING WORKING HOURS DID NO MORE THAN REAFFIRM EXISTING PERSONNEL
POLICIES AND PRACTICES AT THE CENTER PROVIDING FOR "THE STANDARD OF
DRESS AND APPEARANCE ACCEPTABLE IN THE COMMUNITY AND SUITABLE TO THE
WORK ENVIRONMENT."
THE PREPONDERANCE OF THE EVIDENCE DOES ESTABLISH THAT MAMPSC GUIDE
7-1 CHANGED PAST PRACTICES RISING TO THE LEVEL OF CONDITIONS OF
EMPLOYMENT BY PROHIBITING UNIT EMPLOYEES FROM HAVING (1) RETIREMENT
RECEPTIONS AS PREVIOUSLY CONDUCTED, (2) INTER-MODULE COLLECTIONS OF
DONATIONS, (3) EMPLOYEE ACTIVITIES DURING BREAK AND THE DISPLAY OF FOOD
AND REFRESHMENTS AT BREAKS AND AT OTHER THAN LUNCHEON PERIODS, (4)
CATERING OF LUNCHEONS, DURING THE AUTHORIZED LUNCHEON PERIOD, AND (5)
ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH. IT IS WELL ESTABLISHED
THAT TERMS AND CONDITIONS OF EMPLOYMENT ESTABLISHED BY PAST PRACTICE MAY
NOT BE ALTERED BY EITHER PARTY IN THE ABSENCE OF AGREEMENT OR IMPASSE
FOLLOWING GOOD FAITH BARGAINING. DEPARTMENT OF THE NAVY, NAVAL
UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980).
THE RECORD REFLECTS THAT RESPONDENT UNILATERALLY MADE THESE CHANGES
IN PAST PRACTICE WITHOUT BARGAINING IN GOOD FAITH. THE UNION'S SPECIFIC
PROPOSALS WERE NEITHER AGREED TO BY MANAGEMENT, MODIFIED AND AGREED TO
BY THE PARTIES, WITHDRAWN BY THE UNION, OR IN ANY OTHER WAY RESOLVED BY
THE PARTIES AS REQUIRED BY THE STATUTE PRIOR TO THE TIME THE CHANGES
WERE IMPLEMENTED THROUGH THE MAMPSC GUIDE ON MARCH 12, 1979. RESPONDENT
VIEWED ITS PRIMARY OBLIGATION UNDER THE MASTER AGREEMENT AND A 1975
MEMORANDUM AS ONE OF "CONSULTATIONS" RATHER THAN "NEGOTIATIONS." THIS
ARGUMENT MUST BE REJECTED FOR THE SAME REASONS SET FORTH IN A SERIES OF
DECISIONS UNDER THE EXECUTIVE ORDER AFFIRMED BY THE ASSISTANT SECRETARY
AND CITED WITH APPROVAL MOST RECENTLY IN DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM CENTER,
CHICAGO, ILLINOIS, 2 FLRA NO. 73(1980). NEITHER THE MASTER AGREEMENT OR
THE JANUARY 1975 AGREEMENT IN WHICH RESPONDENT AND THE UNION FORMALIZED
THEIR ORAL "CONSULTATION PRACTICES" CONSTITUTED A CLEAR AND UNMISTAKABLE
WAIVER OF THE UNION'S RIGHT TO BARGAIN MID-CONTRACT CHANGES. NO
DIFFERENTIATION IS SPELLED OUT BETWEEN "CONSULT" AND "NEGOTIATE."
RESPONDENT'S ADDITIONAL ARGUMENTS THAT A CRITICAL WORK EXIGENCY
EXISTED AND THAT THE NATURE OF THE UNION'S PROPOSALS AND ITS ACTIONS ON
MARCH 8, 1979 JUSTIFIED THE UNILATERAL IMPLEMENTATION OF THE CHANGES ARE
ALSO REJECTED. ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENT VIOLATED
SECTION 7116(A)(5), BY REFUSING TO NEGOTIATE IN GOOD FAITH, AND
DERIVATIVELY, SECTION 7116(A)(1) OF THE STATUTE.
ALLEGED REFUSAL TO COOPERATE WITH IMPASSE PROCEDURES
THE GENERAL COUNSEL ALLEGED THAT RESPONDENT VIOLATED SECTION
7116(A)(6) AND (8) BY REFUSING TO COOPERATE WITH IMPASSE PROCEDURES.
THE GENERAL COUNSEL CONTENDS THAT RESPONDENT'S ACTION IN UNILATERALLY
IMPLEMENTING THE MAMPSC GUIDE ON MARCH 12, 1979, AFTER HAVING RECEIVED
NOTICE OF THE UNION'S REQUEST FOR THE SERVICES OF THE FEDERAL SERVICE
IMPASSES PANEL, AND BEFORE SUCH REQUEST HAD BEEN ACTED ON BY THE PANEL,
CONSTITUTED A FAILURE TO COOPERATE IN IMPASSE PROCEDURES, REGARDLESS OF
WHETHER AN ACTUAL NEGOTIATION IMPASSE HAD BEEN REACHED AND REGARDLESS OF
WHETHER THE IMPASSE REQUEST WAS PROPER.
IT IS NOTED THAT RESPONDENT FURNISHED ALL INFORMATION REQUESTED BY
THE PANEL AND, IN SO DOING, CONTENDED, IN PART, THAT ITS ISSUANCE OF THE
GUIDE WAS NOT NEGOTIABLE AND THAT ITS OBLIGATION ON SUCH MATTERS WAS
ONLY TO CONSULT WITH THE UNION. THIS POSITION WAS RESPONDENT'S BASIC
ERROR IN THE CONTROVERSY AND THE REMEDY AFFORDED HEREIN FOR A VIOLATION
WITH REGARD TO ITS FAILURE TO BARGAIN IN GOOD FAITH MAKES IT UNNECESSARY
TO REACH THE ISSUE OF A SEPARATE VIOLATION OF SECTON 7116(A)(6) AND (8).
HOWEVER, IF IT WERE DEEMED PROPER TO REACH THIS ISSUE, I WOULD CONCLUDE
THAT THERE WAS NO "IMPASSE" WITHIN THE MEANING OF 5 C.F.R. SECTION
2470.2(E) WHICH "MEANS THAT POINT IN THE NEGOTIATION OF CONDITIONS OF
EMPLOYMENT AT WHICH THE PARTIES ARE UNABLE TO REACH AGREEMENT,
NOTWITHSTANDING THEIR EFFORTS TO DO SO BY DIRECT NEGOTIATIONS AND BY THE
USE OF MEDIATION OR OTHER VOLUNTARY ARRANGEMENTS FOR SETTLEMENT."
CONSEQUENTLY, IN MY VIEW, THE IMPASSE PROVISIONS OF SECTION 7119(B) OF
THE STATUTE WERE INAPPLICABLE AND, UNDER THE CIRCUMSTANCES, I WOULD FIND
NO SEPARATE VIOLATION OF SECTIONS 7116(A)(6) AND (8) AS ALLEGED.
BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE SOCIAL SECURITY ADMINISTRATION,
MID-AMERICA SERVICE CENTER, KANSAS CITY, MISSOURI, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY ALTERING OR CHANGING ESTABLISHED PAST PRACTICES AS
THEY EXISTED PRIOR TO
MARCH 12, 1979 WITH RESPECT TO RETIREMENT RECEPTIONS, INTER-MODULE
COLLECTION OF DONATIONS,
EMPLOYEE ACTIVITIES DURING BREAK, THE DISPLAY OF FOOD AND
REFRESHMENTS AT BREAKS AND AT OTHER
THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE AUTHORIZED
LUNCHEON PERIOD, THE
ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH, OR ANY OTHER TERM AND
CONDITION OF EMPLOYMENT,
WITHOUT FIRST NOTIFYING LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, AS
THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT
CENTER LOCALS), THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, AND UPON
REQUEST, BARGAINING IN GOOD
FAITH TO THE FULL EXTENT CONSONANT WITH LAW.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR
MANAGEMENT RELATIONS STATUTE.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESCIND AND REVOKE MAMPSC GUIDE 701, "SOCIAL ACTIVITIES AT THE
WORKSITE," TO THE EXTENT
SUCH GUIDE CHANGED ESTABLISHED PAST PRACTICES AS THEY EXISTED PRIOR
TO MARCH 12, 1979 WITH
RESPECT TO RETIREMENT RECEPTIONS, INTER-MODULE COLLECTION OF
DONATIONS, EMPLOYEE ACTIVITIES
DURING BREAKS, THE DISPLAY OF FOOD AND REFRESHMENTS AT BREAKS AND AT
OTHER THAN LUNCHEON
PERIODS, CATERING OF LUNCHEONS DURING THE AUTHORIZED LUNCHEON PERIOD,
AND THE ORDERING OUT AND
DELIVERY OF FOOD FOR LUNCH.
(B) NOTIFY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, AS THE
AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION PAYMENT
CENTER LOCALS) THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, OF ANY
PROPOSED CHANGE IN
ESTABLISHED PAST PRACTICES WITH RESPECT TO RETIREMENT RECEPTIONS,
INTER-MODULE COLLECTION OF
DONATIONS, EMPLOYEE ACTIVITIES DURING BREAKS, THE DISPLAY OF FOOD AND
REFRESHMENTS AT BREAKS
AND AT OTHER THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE
AUTHORIZED LUNCHEON
PERIOD, THE ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH, OR ANY OTHER
TERM OR CONDITION OF
EMPLOYMENT AND, UPON REQUEST, BARGAIN IN GOOD FAITH TO THE FULL
EXTENT CONSONANT WITH LAW.
(C) POST AT ITS FACILITIES AT THE MID-AMERICA SERVICE CENTER, COPIES
OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE DIRECTOR OF THE MID-AMERICA 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 5 C.F.R. SECTION 2423.30 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.
IT IS FURTHER ORDERED THAT THE ALLEGATIONS CONTAINED IN PARAGRAPHS
4(B)(2), 4(B)(6), 5, AND 8, OF THE COMPLAINT IN CASE NO. 7-CA-29 BE, AND
HEREBY ARE, DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 3, 1981
WASHINGTON, D.C.
APPENDIX 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 UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
PRACTICES AS THEY EXISTED PRIOR TO MARCH 12, 1979 WITH RESPECT TO
RETIREMENT RECEPTIONS, INTER-MODULE COLLECTION OF DONATIONS, EMPLOYEE
ACTIVITIES DURING BREAK, THE DISPLAY OF FOOD AND REFRESHMENTS AT BREAKS
AND AT OTHER THAN LUNCHEON PERIODS, CATERING OF LUNCHEONS DURING THE
AUTHORIZED LUNCHEON PERIOD, THE ORDERING OUT AND DELIVERY OF FOOD FOR
LUNCH, OR ANY OTHER TERM OR CONDITION OF EMPLOYMENT, WITHOUT FIRST
NOTIFYING LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, AS THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL COUNCIL
OF SOCIAL SECURITY PAYMENT CENTER LOCALS), THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF OUR EMPLOYEES, AND UPON REQUEST, BARGAINING IN GOOD
FAITH TO THE FULL EXTENT CONSONANT WITH LAW.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND AND REVOKE MAMPSC GUIDE 7-1, "SOCIAL ACTIVITIES AT
THE WORKSITE," TO THE EXTENT SUCH GUIDE CHANGED ESTABLISHED PAST
PRACTICES AS THEY EXISTED PRIOR TO MARCH 12, 1979 WITH RESPECT TO
RETIREMENT RECEPTIONS, INTER-MODULE COLLECTION OF DONATIONS, EMPLOYEE
ACTIVITIES DURING BREAKS, THE DISPLAY OF FOOD AND REFRESHMENTS AT BREAKS
AND AT OTHER THEN LUNCHEON PERIODS, CATERING OF LUNCHEON DURING THE
AUTHORIZED LUNCHEON PERIODS, AND THE ORDERING OUT AND DELIVERY OF FOOD
FOR LUNCH.
WE WILL NOTIFY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, AS THE AUTHORIZED REPRESENTATIVE OF THE NATIONAL
OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS) THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, OF ANY PROPOSED CHANGE IN
ESTABLISHED PAST PRACTICES WITH RESPECT TO RETIREMENT RECEPTIONS,
INTER-MODULE COLLECTION OF DONATIONS, EMPLOYEE ACTIVITIES DURING BREAKS,
THE DISPLAY OF FOOD AND REFRESHMENTS AT BREAKS AND AT OTHER THAN
LUNCHEON PERIODS, CATERING OF LUNCHEON DURING THE AUTHORIZED LUNCHEON
PERIODS, THE ORDERING OUT AND DELIVERY OF FOOD FOR LUNCH, AND ANY OTHER
TERM OR CONDITION OF EMPLOYMENT AND, UPON REQUEST, WE WILL BARGAIN IN
GOOD FAITH TO THE FULL EXTENT CONSONANT WITH LAW.
(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 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND
TELEPHONE NUMBER IS: 1100 MAIN STREET, SUITE 680, CITY CENTER SQUARE,
KANSAS CITY, MISSOURI 64105 (816) 374-2199, FTS 758-2199.
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY ADOPTS THE JUDGE'S RECOMMENDED ORDER CONCERNING THE
UNFAIR LABOR PRACTICES FOUND, NOTING PARTICULARLY THE ABSENCE OF ANY
EXCEPTIONS THERETO.