09:0499(58)CA - Great Lakes Program Service Center, SSA, HHS, Chicago, IL and Local 1395, AFGE -- 1982 FLRAdec CA
[ v09 p499 ]
09:0499(58)CA
The decision of the Authority follows:
9 FLRA No. 58
GREAT LAKES PROGRAM SERVICE CENTER,
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, CHICAGO, ILLINOIS
Respondent /1/
and
LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-91
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
JUDGE'S DECISION AND A SUPPORTING BRIEF.
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 IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
THE JUDGE CONCLUDED THAT THE RESPONDENT HAD UNILATERALLY BREACHED A
MEMORANDUM OF UNDERSTANDING (THE AGREEMENT) NEGOTIATED BETWEEN AN
AUTHORIZED REPRESENTATIVE OF THE RESPONDENT AND THE CHARGING PARTY IN
SETTLEMENT OF AN UNFAIR LABOR PRACTICE CHARGE (CASE NO. 5-CA-31 /2/
AND, BASED ON THE RESPONDENT'S SUBSEQUENT REPUDIATION OF AND FAILURE TO
HONOR THE AGREEMENT, THAT RESPONDENT HAD VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE. IN SO CONCLUDING, HE FOUND HAT THE MEMORANDUM OF
UNDERSTANDING, WHICH WAS CONCERNED WITH THE RESTRICTION OF VACANCIES FOR
WHICH UNIT EMPLOYEES WOULD BE ELIGIBLE TO COMPETE, WAS NOT INTENDED TO
INTERFERE WITH MANAGEMENT'S AUTHORITY TO SELECT EMPLOYEES FOR
REASSIGNMENT SO AS TO BE IN CONFLICT WITH SECTION 7106(A) OF THE
STATUTE, BUT WAS MERELY INTENDED TO PROVIDE PROCEDURES WHICH MANAGEMENT
OFFICIALS WOULD OBSERVE IN EXERCISING SUCH AUTHORITY AND APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES WHO MIGHT BE ADVERSELY AFFECTED BY THE
EXERCISE THEREOF UNDER SECTION 7106(B)(2) AND (3) OF THE STATUTE. /3/
INASMUCH AS THE JUDGE'S FINDINGS REGARDING THE PURPOSE AND INTENT OF THE
MEMORANDUM OF UNDERSTANDING ARE SUPPORTED BY THE RECORD AND, AS SO
INTERPRETED, THE PARTIES' AGREEMENT CONCERNS MATTERS WITHIN THE SCOPE OF
THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) AND (3), /4/ THE AUTHORITY
CONCLUDES THAT THE RESPONDENT'S COMPLETE REPUDIATION OF THE ENTIRE
AGREEMENT WITH THE CHARGING PARTY VIOLATED SECTION 7116(A)(1) AND (5) OF
THE STATUTE. /5/
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE GREAT LAKES PROGRAM SERVICE CENTER,
SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CHICAGO, ILLINOIS, SHALL:
1. CEASE AND DESIST FROM:
(A) RESTRICTING APPOINTMENTS TO VACANT POSITIONS, FOR WHICH EMPLOYEES
IN THE BARGAINING UNIT WOULD BE ELIGIBLE TO COMPETE, TO APPOINTMENT BY
REASSIGNMENT, WITHOUT CONSULTING WITH LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
REGARDING THE IMPACT OF SUCH RESTRICTION ON BARGAINING UNIT MEMBERS
PURSUANT TO AN AGREED UPON MEMORANDUM OF UNDERSTANDING.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) EFFECTUATE AND HONOR THE MEMORANDUM OF UNDERSTANDING NEGOTIATED
WITH LOCAL 1395, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE ON MARCH 27, 1979, IN CONNECTION
WITH THE SETTLEMENT OF CASE NO. 5-CA-31.
(B) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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, GREAT LAKES PROGRAM SERVICE CENTER, DEPARTMENT OF HEALTH AND
HUMAN SERVICES, CHICAGO, ILLINOIS, AND SHALL BE POSTED AND MAINTAINED BY
THE DIRECTOR 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 SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION V, 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., JULY 16, 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 RESTRICT APPOINTMENTS TO VACANT POSITIONS, FOR WHICH
EMPLOYEES IN THE BARGAINING UNIT WOULD BE ELIGIBLE TO COMPETE, TO
APPOINTMENT BY REASSIGNMENT, WITHOUT CONSULTING WITH LOCAL 1395,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, REGARDING THE IMPACT OF SUCH RESTRICTION ON
BARGAINING UNIT MEMBERS PURSUANT TO AN AGREED UPON MEMORANDUM OF
UNDERSTANDING. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE
WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE
OF ANY RIGHT UNDER THE STATUTE. WE WILL EFFECTUATE AND HONOR THE
MEMORANDUM OF UNDERSTANDING NEGOTIATED WITH LOCAL 1395, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, ON MARCH 27, 1979, IN CONNECTION WITH THE SETTLEMENT OF
CASE NO. 5-CA-31.
(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 V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 175 WEST
JACKSON BOULEVARD, SUITE 1359-A, CHICAGO, ILLINOIS 60604, AND WHOSE
TELEPHONE NUMBER IS: (312) 353-0139.
-------------------- ALJ$ DECISION FOLLOWS --------------------
FRANCIS X. DIPPEL
MANAGEMENT REPRESENTATIVE
G-122, W. HIGH RISE BUILDING
6401 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
FOR THE RESPONDENT
SHEILA REILLY, ESQUIRE
ATTORNEY
BRENDA M. ROBINSON, ESQUIRE
REGIONAL ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
219 SOUTH DEARBORN, ROOM 1638
CHICAGO, ILLINOIS 60604
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5
U.S.C.SECTION 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS
ISSUED THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5
C.F.R.CHAPTER XIV, PART 2411, ET SEQ.
THE INSTANT MATTER WAS INITIATED BY A CHARGE FILED ON APRIL 26, 1979,
AND AMENDED ON JULY 26, 1979. COMPLAINT AND NOTICE OF HEARING ISSUED ON
SEPTEMBER 5, 1979 ALLEGING A VIOLATION OF 5 U.S.C. 7116(A)(1) AND (5)
BASED ON RESPONDENT'S ALLEGED REPUDIATION OF A MEMORANDUM OF
UNDERSTANDING AND ITS RESTRICTING VACANCIES FOR WHICH EMPLOYEES IN THE
BARGAINING UNIT WOULD BE ELIGIBLE TO COMPETE, TO APPOINTMENT BY
REASSIGNMENT ONLY WITHOUT FIRST CONSULTING WITH THE UNION.
A HEARING WAS HELD ON NOVEMBER 8 AND 9, 1979 IN CHICAGO, ILLINOIS.
ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
HEREIN. BOTH PARTIES SUBMITTED TIMELY BRIEFS IN THE MATTER.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS.
FINDINGS
THE GREAT LAKES PROGRAM SERVICE CENTER, SOCIAL SECURITY
ADMINISTRATION, HEREINAFTER REFERRED TO AS "RESPONDENT" HAS RECOGNIZED
AT ALL TIME MATERIAL HEREIN THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395 HEREINAFTER REFERRED TO AS THE "UNION" AS THE
EXCLUSIVE REPRESENTATIVE OF ALL EMPLOYEES EMPLOYED BY THE RESPONDENT AT
ITS GREAT LAKES PROGRAM SERVICE CENTER, EXCLUDING MANAGEMENT OFFICIALS
AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY.
ON MARCH 27, 1979, RESPONDENT AND THE UNION IN SETTLEMENT OF AN
UNFAIR LABOR PRACTICE CHARGE ENTERED IN TO A MEMORANDUM OF UNDERSTANDING
WHICH READ, IN PERTINENT PART, AS FOLLOWS:
IN SETTLEMENT OF UNFAIR LABOR PRACTICE COMPLAINT NO. 5-CA-31, THE
RESPONDENT AND
COMPLAINANT IN THIS CASE AGREE THAT IN THE FUTURE THE ACTIVITY, PRIOR
TO RESTRICTING ANY
VACANT POSITION TO APPOINTMENT BY REASSIGNMENT, FOR WHICH ANY
BARGAINING UNIT MEMBER COULD BE
ELIGIBLE TO COMPETE EXCEPT FOR THE RESTRICTION, WILL GIVE LOCAL 1395
THE OPPORTUNITY TO FULLY
CONSULT, IN A GOOD FAITH EFFORT TO REACH AGREEMENT, ON THE
JUSTIFICATION FOR THE RESTRICTION
AND ITS IMPACT ON BARGAINING UNIT MEMBERS; THE ACTIVITY SHALL MAKE
AVAILABLE TO THE LOCAL ALL
DIRECTIVES AND ORDERS FROM HIGHER LEVEL AUTHORITIES, IF ANY, AND
OTHER INFORMATION AND
EVIDENCE ON WHICH THE PROPOSAL TO RESTRICT APPOINTMENTS TO THE
VACANCY WAS BASED.
THE MEMORANDUM OF UNDERSTANDING WAS SIGNED BY UNION VICE-PRESIDENT
LEE V. LANGSTER AND JACK E. CUNNINGHAM, LABOR RELATIONS SPECIALIST FOR
THE RESPONDENT. ALSO PRESENT DURING THE DISCUSSION AND SIGNING OF THE
MEMORANDUM WAS JOHN DOSE, A FIELD AGENT FOR THE FEDERAL LABOR RELATIONS
AUTHORITY.
THE TESTIMONY AT THE HEARING DISCLOSED THAT AFTER SOME COMPROMISE
LANGUAGE WAS WORKED OUT BETWEEN THE PARTIES, THE LANGUAGE OF THE
MEMORANDUM WAS TYPED SO THAT IT COULD BE REVIEWED AND APPROVED. MR.
LANGSTER SOUGHT THE APPROVAL OF UNION PRESIDENT DON JONES AND RETURNED
TO THE MEETING ROOM TO SIGN THE MEMORANDUM. SIMILARLY, MR. CUNNINGHAM
LEFT THE MEETING ROOM, ALLEGEDLY TO SEEK OUT THE DIRECTOR, MS. PRESLEY
OR OTHER HIGHER LEVEL MANAGEMENT OFFICIALS FOR THEIR APPROVAL OF THE
MEMORANDUM. ALTHOUGH CUNNINGHAM COULD NOT FIND ANY HIGHER LEVEL
MANAGEMENT OFFICIALS HE RETURNED TO THE MEETING ROOM AND SIGNED THE
MEMORANDUM WITHOUT INFORMING MR. LANGSTER THAT APPROVAL HAD NOT BEEN
GRANTED.
ACCORDING TO MR. CUNNINGHAM, HE WAS INFORMED BY DIRECTOR PRESLEY ON
MARCH 29, 1979 THAT HE HAD BY VIRTUE OF THE MEMORANDUM, GIVEN AWAY A
MANAGEMENT RIGHT AND THAT SHE WOULD NOT BE TIED TO SUCH A MEMORANDUM.
PRESLEY STATED, "IN THE FIRST PLACE YOU HAD NO AUTHORITY TO MAKE AN
AGREEMENT LIKE THIS. IN THE SECOND PLACE, YOU HAVE GIVEN UP MY RIGHT
WHICH IS PROTECTED UNDER THE LAW."
MR. CUNNINGHAM THEN CHECKED WITH THE NATIONAL LABOR RELATIONS STAFF
FOR THE AGENCY AND IMMEDIATELY CONTACTED BOTH MR. DOSE AND MR. LANGSTER
EXPLAINING TO THEM WHAT HAD OCCURRED, THAT RESPONDENT WAS RESCINDING THE
MEMORANDUM AND SUGGESTED THAT THE UNION EITHER WITHDRAW THE WITHDRAWAL
AND REINSTATE THE CASE OR REFILE THE ORIGINAL CASE WHICH THE MEMORANDUM
RESOLVED.
SUBSEQUENTLY, ON APRIL 9, 1979, MR. CUNNINGHAM WROTE TO UNION
PRESIDENT JONES INFORMING HIM THAT,
I WAS INFORMED BY TOP MANAGEMENT THAT I HAD NO AUTHORITY, EITHER
ACTUAL OR IMPLIED, TO
USURP A MANAGEMENT PEROGATIVE AND SIGN A DOCUMENT THAT COULD ABRIDGE
A MANAGEMENT RIGHT. I
WAS INFORMED THAT I HAD EXCEEDED THE POWERS OF MY POSITION AND MY
ACTIONS WOULD NOT BE
RATIFIED.
WITH RESPECT TO MR. CUNNINGHAM'S AUTHORITY THE RECORD INDICATES THAT
HE IS THE ONLY LABOR RELATIONS SPECIALIST EMPLOYED BY THE RESPONDENT AT
ITS PROGRAM CENTER AND THAT HE IS THE PRIMARY MANAGEMENT CONTACT WITH
THE UNION ON DAY-TO-DAY LABOR RELATIONS MATTERS. HIS WORK INVOLVED
SETTLEMENTS AND SIGNING SETTLEMENT AGREEMENTS FOR EMPLOYEES AND UNION
GRIEVANCES. IN ADDITION, HE PREPARES AND SIGNS RESPONSES TO LETTERS
FROM THE UNION ADDRESSED TO THE DIRECTOR AND HE PREPARES LABOR RELATIONS
MEMORANDUM TO SUPERIORS AND TO THE UNION FOR THE DIRECTOR'S SIGNATURE.
FURTHER, HE HAS RESPONDED TO BARGAINING REQUESTS FROM THE UNION, SIGNED
MEMORANDUMS OF UNDERSTANDING AND SIGNED RESPONSES TO UNFAIR LABOR
PRACTICE CHARGES. FINALLY, CUNNINGHAM WAS PERCEIVED BY THE UNION TO BE
THE PRIMARY MANAGEMENT SPOKESPERSON FOR LABOR RELATIONS MATTERS AND THIS
PERCEPTION WAS BASED ON HIS BEING THE ONLY LABOR RELATIONS SPECIALIST AT
THE CENTER INVOLVED IN EMPLOYEE GRIEVANCES, UNION GRIEVANCES, UNFAIR
LABOR PRACTICE CHARGES, AND CONSULTING AND NEGOTIATING ON CHANGES IN
WORKING CONDITIONS. AS PREVIOUSLY STATED, AT THE TIME OF SIGNING,
CUNNINGHAM INDICATED NO RESERVATIONS ABOUT SIGNING THE MEMORANDUM OF
UNDERSTANDING.
THE DIRECTOR OF MANAGEMENT, JUANITA CAROTHERS, IS CUNNINGHAM'S DIRECT
SUPERVISOR. SHE TESTIFIED THAT MANAGERS' AUTHORIZATION TO SIGN
MEMORANDUMS WAS NOT CLEARLY DELINEATED, BUT WAS DEPENDENT ON SUCH
FACTORS AS THE SUSCEPTIBILITY OF THE SUBJECT MATTER TO BE IDENTIFIED AS
OPERATIONS OR AS MANAGEMENT, THE IMPORTANCE OF SUBJECT MATTER AND THE
AVAILABILITY OF INDIVIDUALS. ACCORDING TO CAROTHERS, CUNNINGHAM COULD
SIGN ON BEHALF OF TOP MANAGEMENT AND THAT IN CERTAIN ROUTINE AREAS HE
COULD SIGN AS A MATTER OF COURSE, BUT USING THE SUBSTANCE OF A
MANAGEMENT DECISION. MS. CAROTHERS TESTIFIED THAT CUNNINGHAM IS AN
EXPERT IN LABOR RELATIONS MATTERS AND THAT HIS EFFORTS ARE GENERALLY
REGARDED AS TECHNICALLY AUTHORITATIVE AND ACCEPTED WITHOUT CHANGE.
DIRECTOR PRESLEY TESTIFIED THAT SHE GAVE CUNNINGHAM DIRECTION IN
LABOR RELATIONS MATTERS AND ALSO THAT SHE SOUGHT ADVICE FROM CUNNINGHAM
ON SUCH MATTERS. FURTHER, SHE REFERRED MEMORANDUM FROM THE UNION
CONCERNING UNFAIR LABOR PRACTICE CHARGES AND LABOR RELATIONS MATTERS TO
HIM FOR RESPONSE.
DISCUSSION AND CONCLUSIONS
THE RESPONDENT CONTENDS THAT ITS LABOR RELATIONS SPECIALIST IS NOT AN
AGENT IN THE SENSE THAT HE CAN BIND RESPONDENT BY HIS ACTION, BUT
CERTAINLY HE ACTS AS RESPONDENT'S REPRESENTATIVE TO DEAL WITH THE LOCAL
UNION ON A DAY-TO-DAY BASIS TO RESOLVE MINOR AND MUNDANE
LABOR-MANAGEMENT PROBLEMS OR DISPUTES.
THERE IS NO QUESTION ON THE RECORD THAT CUNNINGHAM HAD EXPRESS
AUTHORITY TO CONDUCT DAY-TO-DAY LABOR RELATIONS WITH THE UNION.
FURTHERMORE, CUNNINGHAM IN HIS POSITION AS LABOR RELATIONS SPECIALIST
EXERCISED INDEPENDENT DECISION AUTHORITY BY THE MANNER IN WHICH HE
PERFORMED THIS WORK AND THROUGH WHICH HE CONTROLLED RESPONDENT'S
HANDLING OF GRIEVANCES, UNFAIR LABOR PRACTICE CHARGES AND THE LIKE.
ALTHOUGH CUNNINGHAM MAY HAVE BEEN REQUIRED TO SEEK APPROVAL FROM OTHER
MANAGEMENT OFFICIALS THERE IS NO INDICATION THAT THE UNION WAS AWARE
THAT HE DID NOT HAVE AUTHORITY OR FINAL RESPONSIBILITY FOR CERTAIN
MATTERS, INCLUDING THE DISPOSITION OF UNFAIR LABOR PRACTICE CHARGES,
WHICH IS WHAT IS INVOLVED IN THE INSTANT CASE. IT IS HORNBOOK LAW THAT,
UNDER APPROPRIATE CIRCUMSTANCES, AN AGENT MAY, THROUGH THE EXERCISE OF
APPARENT AUTHORITY, ASSUME THE RESPONSIBILITY AND LIABILITY OF THE
PRINCIPAL. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, CONSOLIDATED
CIVILIAN PERSONNEL OFFICE, 1 FLRA NO. 80, JULY 5, 1980. IT IS EQUALLY
WELL ESTABLISHED THAT WHERE A DOCUMENT IS AMBIGUOUS AS TO WHAT WAS
INTENDED, PAROL EVIDENCE OF SUCH FACTS IS FREELY ADMITTED.
IT IS APPARENT THAT CUNNINGHAM WAS CLOTHED WITH THE AUTHORITY TO ACT
ON CERTAIN MATTERS SUCH AS UNFAIR LABOR PRACTICE CHARGES ALBEIT THE
CHARGES WERE INITIALLY DIRECTED TO RESPONDENT'S DIRECTOR. THUS, THE
EVIDENCE ESTABLISHES THAT CUNNINGHAM'S SIGNING OF THE MEMORANDUM OF
UNDERSTANDING WAS A NATURAL AND GENERAL CONSEQUENCE OF THE EXPRESS
AUTHORITY GRANTED TO HIM AND THAT HE HAD IMPLIED AND INHERENT AUTHORITY
TO SIGN THE MEMORANDUM. ACCORDINGLY, IT IS FOUND THAT LABOR RELATIONS
SPECIALIST CUNNINGHAM HAD THE IMPLIED AUTHORITY TO BIND RESPONDENT TO
THE MARCH 27, 1979 MEMORANDUM OF UNDERSTANDING.
IN ITS BRIEF, RESPONDENT ARGUES THAT CUNNINGHAM DID NOT HAVE
AUTHORITY TO BARGAIN AWAY A PROHIBITED RIGHT FOR NEGOTIATIONS OR GIVE UP
A RESERVED MANAGEMENT RIGHT TO ASSIGN OR REASSIGN EMPLOYEES IN THE
PERFORMANCE OF THEIR DUTIES AND RESPONSIBILITIES. RESPONDENT CONTENDS
THAT UNDER SECTION 7106(A)(2)(B) AND (C) /6/ THE RIGHT TO ASSIGN OR
REASSIGN EMPLOYEES IS A MANDATORY RESERVED MANAGEMENT RIGHT AND A
PROHIBITED ITEM FOR BARGAINING. ON THE OTHER HAND, THE GENERAL COUNSEL
POINTS OUT THAT THE SUBJECT MEMORANDUM STATES ONLY THAT RESPONDENT,
"PRIOR TO RESTRICTING, ANY VACANT POSITION TO APPOINT ANY REASSIGNMENT,
FOR WHICH ANY BARGAINING UNIT MEMBER COULD BE ELIGIBLE TO COMPETE EXCEPT
FOR THE RESTRICTION, WILL GIVE LOCAL 1395 THE OPPORTUNITY TO FULLY
CONSULT, IN A GOOD FAITH EFFORT, ON THE JUSTIFICATION FOR THE
RESTRICTION AND ITS IMPACT ON BARGAINING UNIT MEMBERS." THE GENERAL
COUNSEL ARGUES THAT IT IS NOT THE ASSIGNMENT OF EMPLOYEES THAT HAS BEEN
NEGOTIATED, BUT MERELY ASPECTS OF THE PROCEDURES BY WHICH THE RESPONDENT
DECIDES TO FILL A VACANT POSITION THROUGH APPOINTMENT BY REASSIGNMENT
INSTEAD OF COMPETITION BY EMPLOYEES.
CASE LAW HAS ESTABLISHED THAT THE IMPACT AND IMPLEMENTATION OF A
MANAGEMENT DECISION WITHIN THE SCOPE OF A MANAGEMENT RIGHT IS FULLY
NEGOTIABLE. SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS BUREAU AND
OFFICES, BALTIMORE, MARYLAND AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO, A/SLMR NO. 1116; DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT AND NATIONAL
TREASURY EMPLOYEES UNION AND CHAPTER 6, NTEU A/SLMR NO. 995;
SMITHSONIAN INSTITUTION, NATIONAL ZOOLOGICAL PARK AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 185, AFL-CIO, A/SLMR NO. 993.
WHERE SUCH AN OBLIGATION EXISTS IT WOULD APPEAR THAT A MEMORANDUM OF
UNDERSTANDING SETTING FORTH A DUTY TO CONSULT WITH REGARD TO IMPACT ON
BARGAINING UNIT EMPLOYEES WOULD NOT HAVE, AS RESPONDENT CONTENDS, UNDER
THE EXECUTIVE ORDER NEGOTIATED AWAY A MANAGEMENT RIGHT AND WOULD HAVE
BEEN A VALID AGREEMENT.
FURTHERMORE, SUBSECTION (B) OF SECTION 7106 /7/ PROVIDES THAT
MANAGEMENT AND THE UNION MAY BARGAIN OVER THE PROCEDURES MANAGEMENT
WILL
USE IN EXERCISING ITS AUTHORITY AND THEY MAY ALSO NEGOTIATE APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
OF AUTHORITY IN SO CALLED PROHIBITED AREAS.
WHILE THE ORDER AND THE STATUTE DIFFER WIDELY IN THE STRUCTURE OF THE
MANAGEMENT RIGHTS CLAUSE IT IS CLEAR UNDER BOTH THAT AGENCY MANAGEMENT
MAY NOT BARGAIN AWAY ITS AUTHORITY TO MAKE DECISIONS IN CERTAIN RESERVED
AREAS. HOWEVER, THE LANGUAGE OF SECTION 7106(B) MAKES IT ABUNDANTLY
CLEAR THAT ANY EXERCISE OF MANAGEMENTS RIGHTS UNDER 7106(A) IS
CONDITIONED ON FULL NEGOTIATIONS OF ARRANGEMENTS REGARDING ADVERSE
IMPACT AND PROCEDURES AND THAT THESE PROCEDURES AND ARRANGEMENTS ARE
MANDATORY SUBJECTS OF COLLECTIVE BARGAINING. RESPONDENT'S RELIANCE ON
7106(A) IS MISPLACED. INDEED, THE DECISION ON THE RIGHT TO ASSIGN OR
REASSIGN IS A MANAGEMENT PEROGATIVE, BUT UNDER BOTH THE EXECUTIVE ORDER
AND THE STATUTE IMPACT BARGAINING IS WITHOUT DOUBT REQUIRED. IN THE
CIRCUMSTANCES OF THIS CASE, IT APPEARS THAT THE SIGNED MEMORANDUM
REQUIRED NO MORE THAN BARGAINING OR CONSULTING ON PROCEDURES OR IMPACT,
WHICH IS ANTICIPATED BY THE STATUTE AND DOES NOT IMPINGE ON RESPONDENT'S
PEROGATIVE TO MAKE ITS DECISION REGARDING REASSIGNMENT. THEREFORE,
RESPONDENT'S FAILURE TO HONOR AND ITS REPUDIATION OF THE AGREEMENT AS
ILLEGAL CONSTITUTES A BREACH OF THAT AGREEMENT. CF. PUGET SOUND NAVAL
SHIPYARD, U.S. DEPARTMENT OF THE NAVY AND BREMERTON METAL TRADES
COUNCIL, BREMERTON, WASHINGTON, A/SLMR NO. 829; VETERANS
ADMINISTRATION; VETERANS ADMINISTRATION HOSPITAL, NORTHPORT, NEW YORK,
A/SLMR NO. 824. ACCORDINGLY, IT IS FOUND THAT RESPONDENT'S REPUDIATION
AND FAILURE TO HONOR THE MARCH 27, 1979 MEMORANDUM OF UNDERSTANDING
AMOUNTED TO A UNILATERAL BREACH OF THE AGREEMENT AND IS VIOLATIVE OF
SECTION 7116(A)(5) AND (1) OF THE STATUTE.
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE STATUTE, 5 U.S.C.SECTION
7118(A)(7), AND SECTION 2423.25 OF THE INTERIM RULES AND REGULATIONS,
FED. REG., VOL. 44, NO. 147, JULY 30, 1979 (5 C.F.R.SECTION 2423.25),
THE AUTHORITY HEREBY ORDERS THAT DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, CHICAGO, ILLINOIS SHALL:
1. CEASE AND DESIST FROM:
(A) RESTRICTING VACANCIES FOR WHICH EMPLOYEES IN THE BARGAINING UNIT
WOULD BE ELIGIBLE TO COMPETE, TO REAPPOINTMENT BY REASSIGNMENT, WITHOUT
CONSULTING WITH THE COLLECTIVE BARGAINING REPRESENTATIVE REGARDING THE
IMPACT ON BARGAINING UNIT MEMBERS PURSUANT TO AN AGREED UPON MEMORANDUM
OF UNDERSTANDING.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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, GREAT LAKES PROGRAM CENTER, DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, CHICAGO, ILLINOIS, AND SHALL BE POSTED AND MAINTAINED BY
HER FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE AREA SUPERVISOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.29 OF THE INTERIM RULES AND REGULATIONS,
NOTIFY THE REGIONAL DIRECTOR OF REGION 5, ROOM 1638, DIRKSEN FEDERAL
BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS, IN WRITING,
WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN
TAKEN TO COMPLY HEREWITH.
/S/ ELI NASH, JR.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 29, 1980 WASHINGTON, D.C.
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 THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT RESTRICT VACANCIES FOR WHICH EMPLOYEES IN THE BARGAINING
UNIT WOULD BE ELIGIBLE TO COMPETE, TO REAPPOINTMENT BY REASSIGNMENT,
WITHOUT CONSULTING WITH THE COLLECTIVE BARGAINING REPRESENTATIVE
REGARDING THE IMPACT ON BARGAINING UNIT MEMBERS PURSUANT TO AN AGREED
UPON MEMORANDUM OF UNDERSTANDING. WE WILL NOT IN ANY LIKE OR RELATED
MANNER INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE
BY THE EMPLOYEE OF ANY RIGHT UNDER THE STATUTE.
(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
QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
FEDERAL LABOR RELATIONS AUTHORITY, REGION 5, WHOSE ADDRESS IS: ROOM
1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO,
ILLINOIS 60604.
--------------- FOOTNOTES$ ---------------
/1/ THE NAMED RESPONDENT, THE DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, IS NOW THE DEPARTMENT OF HEALTH AND HUMAN SERVICES.
/2/ THE JOINT EXHIBITS IN THE RECORD INDICATE THAT A REQUEST TO
WITHDRAW THE UNFAIR LABOR PRACTICE CHARGE IN CASE NO. 5-CA-31 WAS FILED
ON THE SAME DAY AS THE MEMORANDUM OF UNDERSTANDING WAS SIGNED, AND THE
CHARGE WAS WITHDRAWN WITH THE APPROVAL OF THE REGIONAL DIRECTOR.
/3/ SECTION 7106(B) PROVIDES IN PERTINENT PART:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/4/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE,
FORT DIX, NEW JERSEY, 2 FLRA 152, 153-58 (1979), ENFORCED SUB NOM.,
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D
1140 (D.C. CIR. 1981), CERT. DENIED SUB NOM., AFGE V. FLRA, 50 U.S.L.W.
3669 (FEB. 23, 1982).
/5/ SEE VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, 4 FLRA
NO. 59 (1980).
/6/ SECTION 7106(A)(2) AND (B) READ IN PERTINENT PART
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS
. . . .
(C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS FROM . . .
(I) AMONG PROPERLY RANKED
/7/ SECTION 7106(B) PROVIDES THAT:
NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.