[ v10 p26 ]
10:0026(9)CA
The decision of the Authority follows:
10 FLRA No. 9
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION,
REGION VI, AND DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, GALVESTON, TEXAS DISTRICT
Respondents
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1823
Charging Party
Case No. 6-CA-315
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENTS HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT THEY CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THE JUDGE FURTHER
FOUND THAT THE RESPONDENT GALVESTON DISTRICT OF THE SOCIAL SECURITY
ADMINISTRATION HAD NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR
PRACTICES AND RECOMMENDED DISMISSAL OF THE COMPLAINT WITH RESPECT
THERETO. EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED BY THE
RESPONDENTS.
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, AS MODIFIED HEREIN.
THE JUDGE FOUND THAT THE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, REGION VI VIOLATED SECTION 7116(A)(1)
AND (5) OF THE STATUTE /1/ BY UNILATERALLY ISSUING A MEMORANDUM TO ALL
SUPERVISORS WITH INSTRUCTIONS THAT IT BE IMPLEMENTED UPON RECEIPT, WHICH
CHANGED AN ESTABLISHED CONDITION OF EMPLOYMENT IN THE GALVESTON DISTRICT
(A SUBORDINATE ACTIVITY OF REGION VI) WITH REGARD TO THE MANNER OF
REPORTING MILEAGE ON TRAVEL VOUCHERS. IN THIS REGARD, THE JUDGE FOUND
THAT THE CONSISTENT PRACTICE IN THE GALVESTON DISTRICT FOR MORE THAN 20
YEARS, WITH THE FULL KNOWLEDGE AND APPROVAL OF THE PRINCIPAL DISTRICT
AND REGIONAL OFFICIALS, WAS THAT EMPLOYEES WOULD RECORD MILEAGE AT A
GIVEN GEOGRAPHICAL LOCATION AS "IN AND AROUND" THE LOCATION, WITH
APPROPRIATE SPEEDOMETER READINGS; THAT THE REGIONAL COMMISSIONER
UNILATERALLY CHANGED THE ESTABLISHED PRACTICE BY REQUIRING A MILEAGE
READING FOR EACH LOCATION VISITED; AND THAT SUCH CHANGE WAS DIRECTED BY
THE REGIONAL COMMISSIONER, WITH INSTRUCTIONS FOR IMMEDIATE
IMPLEMENTATION, WITHOUT NOTICE TO THE CHARGING PARTY, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1823 (NFFE), THE EXCLUSIVE
REPRESENTATIVE OF THE GALVESTON DISTRICT'S EMPLOYEES, AND WITHOUT
AFFORDING NFFE AN OPPORTUNITY TO BARGAIN CONCERNING THE CHANGE. RELYING
UPON A NUMBER OF CASES DECIDED UNDER EXECUTIVE ORDER 11491, AS AMENDED,
TO THE EFFECT THAT THE ACTS AND CONDUCT OF AGENCY MANAGEMENT AT A LEVEL
OF AN AGENCY'S ORGANIZATION HIGHER THAN THE LEVEL AT WHICH AN EXCLUSIVE
BARGAINING RELATIONSHIP EXISTS MAY CONSTITUTE A REFUSAL TO CONSULT OR
NEGOTIATE IN GOOD FAITH, THE JUDGE CONCLUDED THAT RESPONDENT REGION VI
VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY DIRECTING THE
IMMEDIATE IMPLEMENTATION OF A CHANGE IN AN ESTABLISHED CONDITION OF
EMPLOYMENT AT THE GALVESTON DISTRICT, THE LEVEL OF EXCLUSIVE
RECOGNITION, WITHOUT NOTICE TO OR BARGAINING WITH NFFE.
THE AUTHORITY AGREES THAT, UNDER THE STATUTE, WHEN THE OBLIGATION TO
NEGOTIATE IS BREACHED BY THE ACTS AND CONDUCT OF AGENCY MANAGEMENT, SUCH
A BREACH MAY PROVIDE THE BASIS FOR A SECTION 7116(A)(1) AND (5)
VIOLATION REGARDLESS OF THE LOCATION OF THAT AGENCY MANAGEMENT IN THE
AGENCY CHAIN OF COMMAND. /2/ IN THE INSTANT CASE, WHERE AGENCY
MANAGEMENT AT THE REGIONAL LEVEL DIRECTED THE IMMEDIATE IMPLEMENTATION
OF A POLICY WHICH ALTERED AN ESTABLISHED CONDITION OF EMPLOYMENT IN THE
GALVESTON DISTRICT, SUCH ACT WAS PROPERLY FOUND TO HAVE VIOLATED SECTION
7116(A)(1) AND (5) OF THE STATUTE. /3/ HOWEVER, THE AUTHORITY DISAGREES
WITH THE JUDGE'S FINDING THAT THE RESPONDENT GALVESTON DISTRICT ALSO
VIOLATED SECTION 7116(A)(1) AND (5). AS PREVIOUSLY STATED, THE JUDGE
FOUND THAT THE REGIONAL COMMISSIONER'S MEMORANDUM AND ACCOMPANYING
INSTRUCTIONS TO SUPERVISORS REQUIRED THE REGION'S CHANGED POLICY WITH
REGARD TO REPORTING MILEAGE TO BE IMPLEMENTED UPON RECEIPT. UNDER THESE
CIRCUMSTANCES, WHERE THE GALVESTON DISTRICT ITSELF DID NOT INITIATE A
CHANGE IN AN ESTABLISHED CONDITION OF EMPLOYMENT BUT MERELY COMPLIED
WITH A DIRECTION FROM AGENCY MANAGEMENT AT A HIGHER LEVEL BECAUSE IT HAD
NO CHOICE EXCEPT TO DO SO, THE AUTHORITY CONCLUDES THAT THE PURPOSES AND
POLICIES OF THE STATUTE WOULD NOT BE EFFECTUATED BY FINDING A SEPARATE
VIOLATION OF THE DUTY TO BARGAIN SOLELY BASED UPON THE GALVESTON
DISTRICT'S MINISTERIAL ACTIONS IN IMPLEMENTING THE DIRECTIVES FROM
HIGHER LEVEL AGENCY MANAGEMENT. SEE DEPARTMENT OF THE INTERIOR, WATER
AND POWER RESOURCES SERVICE, GRAND COULEE PROJECT, GRAND COULEE,
WASHINGTON, 9 FLRA NO. 46(1982). /4/
IN VIEW OF THE FOREGOING, THE AUTHORITY SHALL MODIFY THE JUDGE'S
RECOMMENDED ORDER TO REQUIRE THE RESPONDENT REGION VI TO CEASE AND
DESIST FROM CHANGING ESTABLISHED CONDITIONS OF EMPLOYMENT IN THE
GALVESTON DISTRICT CONCERNING THE MANNER OF REPORTING TRAVEL MILEAGE
WITHOUT NOTIFYING NFFE OF SUCH INTENDED CHANGE AND AFFORDING NFFE AN
OPPORTUNITY TO REQUEST BARGAINING WITH THE DISTRICT OR OTHER APPROPRIATE
MANAGEMENT REPRESENTATIVES CONCERNING ANY SUCH PROPOSED CHANGE.
ORDER
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 DEPARTMENT OF HEALTH AND HUMAN RESOURCES, SOCIAL
SECURITY ADMINISTRATION, REGION VI, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING ESTABLISHED CONDITIONS OF EMPLOYMENT IN THE
GALVESTON DISTRICT CONCERNING THE MANNER OF REPORTING MILEAGE ON TRAVEL
VOUCHERS AND DIRECTING THE GALVESTON DISTRICT TO IMPLEMENT SUCH CHANGES
UPON RECEIPT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) WITHDRAW AND RESCIND THE CHANGE CONCERNING REPORTING OF TRAVEL
MILEAGE IN THE GALVESTON DISTRICT, SET FORTH IN THE REGIONAL
COMMISSIONER'S MEMORANDUM DATED SEPTEMBER 20, 1979, AND REINSTATE IN THE
GALVESTON DISTRICT THE PROCEDURES AND POLICIES RELATING TO THE REPORTING
OF TRAVEL MILEAGE AS PRACTICED IMMEDIATELY PRIOR TO SEPTEMBER 20, 1979.
(B) NOTIFY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1823,
THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE GALVESTON DISTRICT,
OF ANY INTENDED CHANGE IN THE MANNER OF REPORTING TRAVEL MILEAGE IN THE
GALVESTON DISTRICT AND PROVIDE SUCH EXCLUSIVE REPRESENTATIVE AN
OPPORTUNITY TO REQUEST NEGOTIATIONS WITH THE DISTRICT OR OTHER
APPROPRIATE MANAGEMENT REPRESENTATIVES ON ANY SUCH PROPOSED CHANGE IN
ESTABLISHED CONDITIONS OF EMPLOYMENT.
(C) POST AT OFFICES OF REGION VI, DALLAS, TEXAS, AT THE GALVESTON,
TEXAS, DISTRICT OFFICE, AND AT THE ANGLETON, TEXAS, BRANCH OFFICE,
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 REGIONAL COMMISSIONER, REGION VI, SOCIAL SECURITY
ADMINISTRATION, AND SHALL BE POSTED AND MAINTAINED BY THE REGIONAL
COMMISSIONER FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING BULLETIN BOARDS AND OTHER PLACES AT EACH OFFICE WHERE NOTICES
TO EMPLOYEES ARE CUSTOMARILY POSTED. THE REGIONAL COMMISSIONER 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 6, 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 COMPLAINT IN CASE NO.
6-CA-315, INSOFAR AS IT ALLEGES A VIOLATION OF SECTION 7116(A)(1) AND
(5) OF THE STATUTE, BY RESPONDENT GALVESTON DISTRICT BE, AND IT HEREBY
IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 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 CHANGE ESTABLISHED CONDITIONS OF EMPLOYMENT IN THE
GALVESTON, TEXAS DISTRICT CONCERNING THE MANNER OF REPORTING MILEAGE ON
TRAVEL VOUCHERS OR DIRECT THE GALVESTON DISTRICT TO IMPLEMENT SUCH
CHANGE WITHOUT NOTIFYING THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1823, THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN THE GALVESTON
DISTRICT, AND PROVIDING THE EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO
REQUEST NEGOTIATIONS WITH THE DISTRICT OR OTHER APPROPRIATE MANAGEMENT
REPRESENTATIVES CONCERNING THE PROPOSED CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL WITHDRAW AND RESCIND THE CHANGE CONCERNING REPORTING OF
TRAVEL MILEAGE IN THE GALVESTON DISTRICT, WHICH WAS SET FORTH IN THE
REGIONAL COMMISSIONER'S MEMORANDUM DATED SEPTEMBER 20, 1979, AND WILL
REINSTATE IN THE GALVESTON DISTRICT THE PROCEDURES AND POLICIES RELATING
TO THE REPORTING OF TRAVEL MILEAGE AS PRACTICED IMMEDIATELY PRIOR TO
SEPTEMBER 20, 1979.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION,
REGION VI
DATED: . . . BY: . . .
REGIONAL COMMISSIONER
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, REGION 6, WHOSE
ADDRESS IS: ROOM 450, DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY
STREETS, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS: (214)
767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, REGION VI, SOCIAL SECURITY
ADMINISTRATION, AND DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE,
REGION VI, SOCIAL SECURITY
ADMINISTRATION, GALVESTON, TEXAS,
DISTRICT AND THE SUCCESSOR DEPARTMENT
OF HEALTH AND HUMAN RESOURCES, REGION
VI, SOCIAL SECURITY ADMINISTRATION
AND DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION VI, SOCIAL SECURITY
ADMINISTRATION, GALVESTON, TEXAS
DISTRICT /5/
RESPONDENTS
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1823
CHARGING PARTY
CASE NO.: 6-CA-315
STEVEN M. ANGEL, ESQUIRE
FOR THE GENERAL COUNSEL
WILSON SCHUERHOLZ, ESQUIRE
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5 U.S.C. 7101,
ET SEQ. /6/ AND THE FINAL RULES AND REGULATIONS ISSUED THEREUNDER, 5
C.F.R. CHAPTER XIV, FED. REG., VOL. 45, JANUARY 17, 1980.
THIS CASE CONCERNS RESPONDENT'S REQUIREMENT THAT VOUCHERS FOR
REIMBURSEMENT OF TRAVEL EXPENSES AS TO MILEAGE SHOW ALL INFORMATION
ABOUT A TRIP, INCLUDING MILEAGE READINGS FOR EACH LOCATION VISITED.
INSTRUCTIONS FOR COMPLETING SF-1012, TRAVEL VOUCHER, OR SF-1164, CLAIM
FOR REIMBURSEMENT FOR EXPENDITURES ON OFFICIAL BUSINESS, ARE COVERED IN
RESPONDENT'S ADS GUIDE SSA.G: 240-63 AND PROVIDE, IN RELEVANT PART,
"SHOW POINT OF ORIGIN AND DESTINATION AND SPEEDOMETER READING AT
BEGINNING AND END OF EACH TRIP . . . ." THERE IS NO DISPUTE CONCERNING
THIS REQUIREMENT. THE PRACTICE, FOR MANY YEARS, HAD BEEN THAT IF AN
EMPLOYEE BEGAN HIS TRIP AT "A" HE SHOWED THE BEGINNING MILEAGE AND IF HE
DROVE TO VARIOUS PLACES AT "A" HE SHOWED "A" BEGINNING MILEAGE; "A-- IN
AND AROUND"; HE REPEATED THE BEGINNING MILEAGE AT "A" AND THE MILEAGE
AT THE END OF THE TRIP; OR IF HE WENT FROM "A" TO "B" AND MADE VARIOUS
TRIPS AT "B" HE WOULD SHOW BEGINNING MILEAGE AT "A"; MILEAGE UPON
ARRIVAL AT "B"; "B"-- IN AND AROUND"; HE REPEATED THE ARRIVAL MILEAGE
AT "B" AND THE MILEAGE AT THE END OF THE TRIP. IN SEPTEMBER, 1979,
RESPONDENT'S REGIONAL COMMISSIONER ISSUED A MEMORANDUM WHICH DIRECTED
THAT EACH LOCATION MUST BE SHOWN, INCLUDING MILEAGE READINGS FOR EACH
LOCATION VISITED, WHICH, IN PRACTICAL TERMS, MEANT THAT "IN AND AROUND"
WOULD NO LONGER SUFFICE.
THE CHARGE, FILED NOVEMBER 12, 1979 (G.C. EXH. 1(A)) AND FIRST
AMENDED CHARGE, FILED NOVEMBER 23, 1979 (G.C. EXH. 1(D)) HAD ALLEGED A
VIOLATION OF SEC. 16(A)(1), (5) AND (7) OF THE STATUTE AS TO THE CHANGE;
BUT THE COMPLAINT WHICH ALLEGES A VIOLATION OF SEC. 16(A)(1) AND (5)
(G.C. EXH. 1(G)), IN PARAGRAPH 5, ASSERTED AN UNILATERAL CHANGE WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN OVER THE IMPACT AND
IMPLEMENTATION OF THE CHANGE. AT THE OPENING OF THE HEARING, GENERAL
COUNSEL MOVED TO AMEND THE COMPLAINT IN TWO RESPECTS: FIRST, TO MAKE IT
CLEAR THAT IT WAS ALLEGED THAT THE DISTRICT VIOLATED THE STATUTE AND, IN
ADDITION, THAT THE REGION ALSO, INDEPENDENTLY, VIOLATED THE STATUTE;
SECOND, TO REMOVE THE LIMITATION TO IMPACT AND IMPLEMENTATION AND TO
ALLEGE A VIOLATION BOTH AS TO SUBSTANCE (DECISION) BARGAINING AND IMPACT
AND/OR IMPACT AND IMPLEMENTATION. RESPONDENT DID NOT OBJECT TO EITHER
AMENDMENT AND GENERAL COUNSEL'S MOTION TO AMEND THE COMPLAINT IN BOTH
RESPECTS WAS GRANTED. /7/
PURSUANT TO THE NOTICE OF HEARING (G.C. EXH. 1(G)), A HEARING WAS
DULY HELD BEFORE THE UNDERSIGNED IN GALVESTON, TEXAS, ON MAY 14, 1980.
ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED. AT THE CLOSE OF THE
HEARING, JUNE 16, 1970, WAS FIXED AS THE DATE FOR MAILING POST HEARING
BRIEFS AND EACH PARTY HAS SUBMITTED A BRIEF, TIMELY MAILED, RECEIVED ON,
OR BEFORE, JUNE 19, 1980, WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON
THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS AND
CONCLUSIONS:
FINDINGS AND DISCUSSION
1. THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1823
(HEREINAFTER, "LOCAL 1823" OR "UNION"), IS THE RECOGNIZED EXCLUSIVE
REPRESENTATIVE FOR UNIT EMPLOYEES OF THE GALVESTON, TEXAS, DISTRICT
(SEE, RES. EXHS. 2 AND 3). GALVESTON DISTRICT CONSISTS OF TWO OFFICES,
THE GALVESTON DISTRICT OFFICE AND THE ANGLETON BRANCH OFFICE, AND COVERS
SOCIAL SECURITY PROGRAMS IN GALVESTON, MATAGORDA AND BRAZORIA COUNTIES,
TEXAS. REGION VI, DALLAS, TEXAS, INCLUDES SOME 47 DISTRICTS, ONE OF
WHICH IS THE GALVESTON DISTRICT.
2. BY MEMORANDUM DATED SEPTEMBER 20, 1979, TO SUPERVISORS, INCLUDING
ALL AREA DIRECTORS AND ALL BRANCH MANAGERS, THE REGIONAL COMMISSIONER,
MARTHA A. MCSTEEN, DIRECTED, AS NOTED ABOVE, THAT "THE SSA-6026 MUST
SHOW ALL INFORMATION ABOUT A TRIP, INCLUDING MILEAGE READINGS FOR EACH
LOCATION VISITED." (G.C. EXH. 2). THE MEMORANDUM IS DIRECTIVE TO ALL
SUPERVISORS AND MR. JAMES HENDRICKS, BRANCH MANAGER OF THE ANGLETON
BRANCH OFFICE TESTIFIED THAT IT WAS "EFFECTIVE WHEN WE GOT IT." (TR.
30). MR. GORDON GONZALES, DISTRICT MANAGER FOR THE GALVESTON DISTRICT,
TESTIFIED THAT HE AND MR. HENDRICKS FIRST LEARNED OF THE CHANGE ON
SEPTEMBER 25, 1979, AT AN AREA MANAGER'S CONFERENCE WHEN MR. MAX ODHAM,
DIVISION DIRECTOR OF ADMINISTRATION AND MANAGEMENT, INFORMED THEM THAT
THE MEMORANDUM "WAS COMING TO THE FIELD AND THAT WE WOULD BE RECEIVING
IT SHORTLY" (TR. 107); THAT MR. ODHAM READ THE MEMORANDUM TO THEM, AND
THAT MR. ODHAM "TOLD US THAT IT WOULD BE EFFECTIVE OCTOBER 1, 1979."
(TR. 107). MR. GONZALES FURTHER TESTIFIED THAT, WHILE AT THE
CONFERENCE, HE AND MR. HENDRICKS PRIVATELY DISCUSSED THE MATTER ON
SEPTEMBER 25. MR. GONZALES TESTIFIED, IN PART, AS FOLLOWS:
" . . . I TOLD JIM THAT AS SOON AS WE GOT THE MEMORANDUM IN OUR
RESPECTIVE OFFICES THAT WE
WOULD SHARE IT WITH THE UNION. WE WOULD TELL THE UNION THAT THE
DOCUMENTATION REQUIREMENTS
WOULD BE EFFECTIVE OCTOBER 1, 1979, BUT THAT WE WOULD NEGOTIATE THE
IMPACT AND IMPLEMENTATION
OF IT, NOT THE NEW REQUIREMENT, BUT THE REQUIREMENTS IN THE MEMO."
(TR. 108).
3. MR. GONZALES STATED THAT HE WAS BACK IN HIS OFFICE ON SEPTEMBER
26 AND IMMEDIATELY UPON HIS ARRIVAL CALLED MR. KEITH FOLZMAN, EXECUTIVE
VICE PRESIDENT OF LOCAL 1823, TO HIS OFFICE AND INFORMED HIM THAT "THERE
WAS A MEMORANDUM COMING OUT AND THAT I WOULD GIVE HIM A COPY . . . AS
SOON AS IT ARRIVED", THAT HE RECEIVED THE MEMORANDUM ON SEPTEMBER 27, AT
WHICH TIME HE GAVE MR. FOLZMAN A COPY AND TOLD HIM,
" . . . I WOULD BE GLAD TO DISCUSS THE MEMORANDUM AND IMPACT BARGAIN
IF HE SO
CHOSE." (TR. 109).
MR. FOLZMAN DID NOT REQUEST BARGAINING.
4. THE PRESIDENT OF LOCAL 1823, MR. ROY SINCLAIR, WORKS IN THE
ANGLETON BRANCH OFFICE. MR. HENDRICKS, BRANCH MANAGER, DID NOT INFORM
MR. SINCLAIR OF THE COMMISSIONER'S MEMORANDUM, OR OF THE CHANGE, PRIOR
TO HIS RECEIPT OF THE MEMORANDUM ON, OR ABOUT, OCTOBER 1, 1979. MR.
HENDRICKS TESTIFIED THAT BY THE TIME HE RECEIVED THE MEMORANDUM ON
MONDAY, OCTOBER 1, MR. SINCLAIR HAD LEFT THE OFFICE TO GO TO HIS CONTACT
STATION AND, ACCORDINGLY, HE DID NOT SEE MR. SINCLAIR UNTIL THE
FOLLOWING DAY, TUESDAY, WHEN HE GAVE MR. SINCLAIR A COPY OF THE
COMMISSIONER'S MEMORANDUM (G.C. EXH. 2) TOGETHER WITH MR. GONZALES'
COVERING MEMO (WHICH WAS NOT OFFERED AS AN EXHIBIT); THAT AFTER LOOKING
AT THEM MR. SINCLAIR "THREW IT BACK ON MY DESK" (TR. 31) AND LEFT FOR
HIS NORMAL FIELD DUTIES; AND THE FIRST DISCUSSION HE HAD WITH MR.
SINCLAIR WAS THE NEXT DAY, WEDNESDAY, OCTOBER 3, AT WHICH TIME MR.
HENDRICKS STATED THAT HE TOLD MR. SINCLAIR,
'"ROY, YOU HAD BETTER READ IT BECAUSE THIS IS WHAT WE ARE GOING TO
IMPLEMENT FOR THIS
MONTH."' (TR. 31).
MR. HENDRICKS STATED THAT MR. SINCLAIR RAISED A GOOD POINT AS TO
WHETHER A SERIES OF STARTS AND STOPS TO LOCATE A SINGLE PERSON MUST BE
PUT DOWN AND SAID THAT HE TOLD MR. SINCLAIR THAT HE COULD ACCEPT THE
"LAST POINT WHERE YOU FOUND THE PERSON . . . AS BEING YOUR STOP POINT
RATHER THAN ALL OF THOSE OTHER STOPS IN BETWEEN." (TR. 35). MR.
HENDRICKS FURTHER STATED THAT HE AND MR. SINCLAIR HAD A FURTHER
DISCUSSION ON THURSDAY OR FRIDAY AT WHICH TIME HE INFORMED MR. SINCLAIR
THAT HE HAD DISCUSSED THE "LAST POINT" QUESTION WITH MR. GONZALES WHO
CONCURRED WITH MR. HENDRICKS' POSITION; THAT AFTER THEY HAD GONE OVER
THE MEMORANDUM AGAIN, MR. SINCLAIR SAID HE "COULDN'T BUY IT, THAT HE
WANTED TO NEGOTIATE" (TR. 36); THAT HE, HENDRICKS HAD RESPONDED THAT HE
WAS WILLING TO NEGOTIATE THE IMPACT AND IMPLEMENTATION AND ASKED MR.
SINCLAIR TO GIVE HIM "THE AREA OF THE IMPACT." (TR. 36). MR. HENDRICKS
STATED THAT HE MET AGAIN WITH MR. SINCLAIR THE WEEK OF OCTOBER 8, 1979,
AT WHICH TIME HE TOLD MR. SINCLAIR THAT HE "COULDN'T AUTHORIZE HIS
EXPENDITURES UNLESS IT CAME BACK ON A 6026 AND SHOWED THE STOP AND START
POINTS." (TR. 36; TO LIKE EFFECT, SEE, ALSO, TR. 37).
5. MR. SINCLAIR'S TESTIMONY DIFFERED SHARPLY FROM MR. HENDRICKS' IN
VARIOUS RESPECTS. MR. SINCLAIR TESTIFIED THAT HE FIRST SAW THE REGIONAL
COMMISSIONER'S MEMORANDUM ON FRIDAY, OCTOBER 5, WHEN HE FOUND IT ON HIS
DESK WHEN HE RETURNED TO THE OFFICE AT 12:30 OR 1:00 PM; THAT HE HAD NO
CONVERSATION WITH MR. HENDRICKS BETWEEN THE 1ST AND 5TH OF OCTOBER;
THAT HE KNEW NOTHING ABOUT IT UNTIL THE 5TH (TR. 54). MR. SINCLAIR
STATED THAT AFTER HE READ THE MEMORANDUM ON THE 5TH HE WENT TO MR.
HENDRICKS' OFFICE AND ASKED "WHAT IS ALL OF THIS ABOUT?" AND MR.
HENDRICKS RESPONDED "WELL, THIS IS A NEW WAY THAT WE ARE GOING TO HAVE
TO MAKE OUT OUR TRAVEL VOUCHERS, OUR RECORD THAT WE KEEP FOR OUR TRAVEL"
(TR. 55). AFTER SOME DISCUSSION, MR. SINCLAIR STATED THAT MR. HENDRICKS
SAID, "WELL, THIS IS AN ORDER FROM THE REGIONAL COMMISSIONER AND WE HAVE
TO DO IT LIKE THIS" AND HE, SINCLAIR, HAD STATED, "WELL, I WANT TO
NEGOTIATE THIS BEFORE THIS IS PUT INTO EFFECT." (TR. 55). HE SAID MR.
HENDRICKS HAD SAID "ALL RIGHT, LET'S NEGOTIATE" AND MR. SINCLAIR SAID
THAT BEFORE HE COULD NEGOTIATE HE NEEDED ANSWERS TO SOME QUESTIONS AND
HAD GIVEN MR. HENDRICKS SEVERAL SITUATIONS TO WHICH MR. HENDRICKS HAD
SAID "I WILL FIND OUT. I WILL CONTACT THE REGIONAL OFFICE AND FIND
OUT." (TR. 57). MR. SINCLAIR STATED THAT THE FOLLOWING WEEK, OCTOBER 11
OR 12, HE HAD GONE TO MR. HENDRICKS' OFFICE AND ASKED "HAVE YOU HEARD
ANYTHING ABOUT WHAT WE ARE GOING TO DO ON THIS?" AND MR. HENDRICKS
REPLIED "NO, BUT I WILL FIND OUT AND GET BACK TO YOU." (TR. 58). ABOUT
A WEEK LATER, OCTOBER 18 OR 19, MR. SINCLAIR STATED THAT HE AGAIN WENT
TO MR. HENDRICKS' OFFICE AND THAT THE TOTAL CONVERSATION CONSISTED OF
MR. HENDRICKS' STATEMENT,
"YES, WE HAVE JUST ABOUT GOT THIS WRAPPED UP AND YOU WILL GET A
LETTER IN THE NEXT DAY OR
SO." (TR. 59).
6. MR. SINCLAIR STATED THAT THE NEXT THING THAT OCCURRED WAS HIS
RECEIPT OF MR. HENDRICKS' LETTER OF OCTOBER 25, 1979 (G.C. EXH. 7). IN
HIS LETTER, MR. HENDRICKS STATED, INTER ALIA, THAT:
" . . . THE DOCUMENTATION REQUIREMENT IS NOT NEW AND IS, THEREFORE,
NOT SUBJECT TO
NEGOTIATIONS . . .
. . . .
"I HAVE MET WITH YOU . . . AND HAVE ATTEMPTED TO BARGAIN IMPACT WITH
YOU. YOU, HOWEVER,
CONSISTENTLY HOLD (SIC) THAT . . . YOU WILL NOT AGREE TO ITS
IMPLEMENTATION BEFORE
NEGOTIATIONS ON THE POLICY AND RESOLUTION OF ANY DIFFERENCES WE MAY
HAVE ARISING FROM THE
POLICY . . .
"SINCE YOU AND I HAVE NO CHOICE IN THIS MATTER, I ADVISE YOU TO
COMPLY IF YOU WANT TO BE
REIMBURSED FOR YOUR LOCAL TRAVEL IN OCTOBER AND SUBSEQUENT MONTHS."
(G.C. EXH 7).
7. UPON RECEIPT OF MR. HENDRICKS LETTER, MR. SINCLAIR MET WITH MR.
HENDRICKS AND TESTIFIED THAT HE AGAIN STATED "THIS HAS TO BE NEGOTIABLE.
IT IS A CHANGE AND I THINK WHAT WE HAD BETTER DO IS CALL IN A MEDIATOR
. . . AND ACTUALLY NEGOTIATE THIS CHANGE" (TR. 60), BUT MR. HENDRICKS
REFERRED HIM TO HIS LETTER AND SAID, "THE CHANGE IS NOT NEGOTIABLE
BECAUSE IT WAS NOT A CHANGE." (TR. 60). BY LETTER DATED OCTOBER 31,
1979 (G.C. EXH. 8), MR. SINCLAIR SUBMITTED HIS OCTOBER TRAVEL REPORT TO
MR. HENDRICKS AND STATED, IN PART, AS FOLLOWS:
"AS YOU ARE AWARE, I DID NOT RECEIVE THIS MEMORANDUM UNTIL OCTOBER 5,
1979 AT WHICH TIME I,
FEELING THAT IT CONSTITUTED A CHANGE IN PERSONNEL POLICY AND WORKING
CONDITIONS, REQUESTED, IN
MY CAPACITY AS PRESIDENT OF LOCAL 1823, NFFE, TO NEGOTIATE THE
CHANGE.
. . . .
"ON OCTOBER 25, 1979 I RECEIVED A LETTER FROM YOU STATING THE MATTER
WAS NOT NEGOTIABLE
. . . ." (G.C. EXH. 8).
BY LETTER DATED NOVEMBER 5, 1979 (RES. EXH. 1), MR. HENDRICKS
RETURNED MR. SINCLAIR'S OCTOBER TRAVEL REPORT. /8/
8. THE PROVISIONS OF THE STAFF TRAVEL MANUAL WHICH MR. HENDRICKS
REFERRED TO IN HIS LETTER OF OCTOBER 25, 1979, AND WHICH HE REPRESENTED
WAS ISSUED NOVEMBER 30, 1959, WAS NOT SHOWN AND THE PORTION OF
INSTRUCTIONS FOR COMPLETING SF-1164'S, SET FORTH IN THE COMMISSIONER'S
MEMORANDUM OF SEPTEMBER 20, 1979 ("SHOW POINT OF ORIGIN AND DESTINATION
AND SPEEDOMETER READING AT BEGINNING AND END OF EACH TRIP"), DOES NOT
PURPORT TO REQUIRE DOCUMENTATION OF MILEAGE OF EVERY STOP, OR LOCATION--
INDEED, MERELY REQUIRED "SPEEDOMETER READING AT BEGINNING AND END OF
EACH TRIP". BUT WHATEVER MIGHT HAVE BEEN PROVIDED IN RESPONDENT'S 1959
MANUAL AND ASSUMING THAT SUCH MANUAL PROVIDED FOR SUCH DOCUMENTATION, OR
WAS SUBJECT TO SUCH INTERPRETATION, THE RECORD IS UNEQUIVOCAL THAT THE
UNIFORM AND CONSISTENT PRACTICE IN THE GALVESTON DISTRICT /9/ FOR MORE
THAN 20 YEARS HAD BEEN TO SHOW, SIMPLY, TOTAL MILEAGE FOR "IN AND
AROUND" DRIVING AND NOT TO SHOW SPEEDOMETER READINGS FOR EVERY STOP AND
START.
CONCLUSIONS
RESPONDENT'S THRESHOLD POSITION, THAT, ALTHOUGH NOT ACTING PURSUANT
TO SEC. 17 OF THE STATUTE, A REGION MAY, NEVERTHELESS, WITH IMPUNITY
CHANGE CONDITIONS OF EMPLOYMENT BY ISSUING REGULATIONS DIRECTIVE TO ITS
SUBORDINATE DISTRICTS AND/OR THAT A REGIONAL POLICY DECISION RELIEVES A
DISTRICT OF ITS OBLIGATION TO BARGAIN WITH AN EXCLUSIVE REPRESENTATIVE
CONCERNING A CHANGE OF AN ESTABLISHED CONDITION OF EMPLOYMENT AND,
SPECIFICALLY, THEREBY LIMIT THE DISTRICT'S BARGAINING OBLIGATION TO
IMPACT AND IMPLEMENTATION, UNLESS, OF COURSE, THE CHANGE IS A RESERVED
RIGHT OF MANAGEMENT PURSUANT TO SEC. 6(A) OF THE STATUTE, IS CONTRARY TO
THE REQUIREMENTS OF THE STATUTE, SEE, FOR EXAMPLE SECS. 3(A)(12), 14,
AND 16(A)(1) AND (5), CF., SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS
BUREAUS AND OFFICES, BALTIMORE, MARYLAND, A/SLMR NO. 1116, 8 A/SLMR 1011
(1978); VETERANS ADMINISTRATION, 1 FLRA NO. 101, FLRA REPORT OF CASE
DECISIONS NO. 15, SEPTEMBER 25, 1979, AND IS REJECTED. HOWEVER
DISTASTEFUL IT MAY APPEAR TO RESPONDENT'S CONCEPT OF MANAGEMENT, THE
STATUTE DOES, INDEED, REQUIRE NOTICE TO EXCLUSIVE BARGAINING
REPRESENTATIVES OF PROPOSED CHANGES OF CONDITIONS OF EMPLOYMENT AND,
UPON REQUEST, GOOD FAITH BARGAINING; AND MOST ASSUREDLY RESPONDENT IS
NOT FREE UNILATERALLY TO CHANGE CONDITIONS OF EMPLOYMENT WHETHER IT
CALLS ITS PRONOUNCEMENT A MEMORANDUM, AS IT DID IN THIS CASE, OR A
REGULATION, EXCEPT AS SPECIFICALLY PROVIDED BY SEC. 17 OF THE STATUTE.
OBVIOUSLY, REGION VI IS NOT A PRIMARY NATIONAL SUBDIVISION OF AN AGENCY;
THE MEMORANDUM OF THE REGIONAL COMMISSIONER WAS NOT A RULE OR
REGULATION ISSUED BY AN AGENCY OR BY ANY PRIMARY NATIONAL SUBDIVISION OF
SUCH AGENCY; NOR, OF COURSE, WAS THE MEMORANDUM A GOVERNMENT-WIDE RULE
OR REGULATION. ACCORDINGLY, EVEN IF THE MEMORANDUM WERE PROPERLY
DENOMINATED A REGULATION, NOT AN INCONSIDERABLE HURDLE TO SURMOUNT,
RESPONDENT, IN ANY EVENT, HAS FAILED UTTERLY TO ESTABLISH ITS EXEMPTION
FROM THE DUTY TO BARGAIN PURSUANT TO SEC. 17 OF THE STATUTE.
THE UNIFORM AND CONSISTENT PRACTICE IN THE GALVESTON DISTRICT OF
RECORDING MILEAGE AT A GIVEN GEOGRAPHICAL LOCATION AS "IN AND AROUND"
THE LOCATION, WITH APPROPRIATE SPEEDOMETER READINGS, FOR MORE THAN 20
YEARS WITH FULL KNOWLEDGE AND APPROVAL OF RESPONDENT'S PRINCIPAL
DISTRICT AND REGIONAL OFFICIALS HAD BECOME AN ESTABLISHED TERM AND
CONDITION OF EMPLOYMENT WHICH, UNLESS A RESERVED RIGHT OF MANAGEMENT,
RESPONDENT WAS NOT AT LIBERTY, UNILATERALLY, TO CHANGE. U.S. DEPARTMENT
OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW
ORLEANS, LOUISIANA, A/SLMR NO. 1034, 8 A/SLMR 497(1978); INTERNAL
REVENUE SERVICE, SOUTHEASTERN REGION, APPELLATE BRANCH OFFICE, NEW
ORLEANS, LOUISIANA, A/SLMR NO. 1153, 8 A/SLMR 1254(1978); SEE, ALSO,
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, NATIONAL OFFICE AND CENTRAL
REGION, 2 FLRA NO. 67(1980). A PRACTICE WHICH HAS RIPENED INTO A
CONDITION OF EMPLOYMENT IN THE BARGAINING UNIT MAY NOT BE CHANGED
UNILATERALLY IN RELIANCE ON A LONG DORMANT REGULATION OR POLICY,
NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 246, 3 A/SLMR 88(1973). /10/
RESPONDENT ASSERTS THAT THE CHANGE OF PRACTICE OF REPORTING MILEAGE,
ADMITTEDLY FOLLOWED FOR MORE THAN 20 YEARS, WAS A RESERVED RIGHT OF
MANAGEMENT PURSUANT TO SEC. 6(A)(1) OF THE STATUTE BECAUSE IT RELATED
TO:
"INTERNAL SECURITY PRACTICES OF THE AGENCY"
IT IS QUITE TRUE THAT, IN THE MAIN, SEC. 6(A), AND SPECIFICALLY
"INTERNAL SECURITY PRACTICES" REFLECTS THE LANGUAGE OF SEC. 11(B), OF
EXECUTIVE ORDER 11491, AS AMENDED. I HAVE GIVEN CAREFUL CONSIDERATION
TO THE COUNCIL'S DECISION IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1592 AND ARMY-AIR FORCE EXCHANGE SERVICE, HILL
AIR FORCE BASE, UTAH, FLRC NO. 77A-123, 6 FLRC 612(1978) AND IN
PARTICULAR TO THE PORTION OF THE COUNCIL'S DECISION CONCERNING UNION
PROPOSAL III, 6 FLRC AT 617-621, WHEREIN THE COUNCIL STATED, IN PART, AS
FOLLOWS:
"NO INTENT IS EVIDENCED IN THE ORDER, OR IN THE VARIOUS REPORTS AND
RECOMMENDATIONS WHICH
ACCOMPANIED THE ORDER AND ITS SUBSEQUENT AMENDMENTS, THAT THE PHRASE
'INTERNAL
SECURITY' PRACTICES IS TO BE ACCORDED ANY MEANING OTHER THAN THE
COMMON MEANING ASCRIBED TO
IT . . . 'SECURITY' RELATES TO DEFENDING, PROTECTING, MAKING SAFE OR
SECURE. HENCE, AS USED
IN THE ORDER . . . THE TERM 'SECURITY' PRACTICES INCLUDE, INTER ALIA,
THOSE POLICIES,
PROCEDURES AND ACTIONS THAT ARE ESTABLISHED AND UNDERTAKEN TO DEFEND,
PROTECT, MAKE SAFE OR
SECURE (I.E., TO RENDER RELATIVELY LESS SUBJECT TO DANGER, RISK OR
APPREHENSION) THE PROPERTY
OF AN ORGANIZATION.
"CLEARLY, THE SPECIFIC NATURE OF THE 'INTERNAL SECURITY' PRACTICES
WHICH WOULD BEST
ACCOMPLISH THESE OBJECTIVES FOR A PARTICULAR ORGANIZATION GENERALLY
WILL DEPEND UPON THE
FUNCTIONS OF THAT ORGANIZATION AND ITS DERIVATIVE GOALS, ACTIVITIES
AND PROCESSES; THE
CHARACTER AND VULNERABILITY OF WHAT IS BEING PROTECTED; AND WHETHER
SECURITY IS SOUGHT AGAINST
A RISK OR DANGER FROM WITHIN OR FROM OUTSIDE THE ORGANIZATION . . .
. THUS, DEPENDING UPON
THE CIRCUMSTANCES, THEY MAY INVOLVE ONE OR A COMBINATION OF
PRACTICES, FOR EXAMPLE, GUARD
FORCES, BARRIERS, ALARMS AND SPECIAL LIGHTING. FURTHER, THEY MAY
INVOLVE PROCEDURES TO BE
FOLLOWED BY EMPLOYEES, WHICH PROCEDURES ARE DESIGNED TO ELIMINATE OR
MINIMIZE PARTICULAR RISKS
TO THE PROPERTY OF AN ORGANIZATION FROM SUCH EMPLOYEES.
"TURNING TO THE PRESENT CASE . . . AN AGENCY POLICY ESTABLISHING AS
AN ASSERTED SECURITY
PRACTICE A PROCEDURE TO BE FOLLOWED BY AGENCY EMPLOYEES INTENDED TO
ELIMINATE OR MINIMIZE A
PARTICULAR RISK FROM SUCH EMPLOYEES TO AGENCY PROPERTY . . . . IN
PARTICULAR, THE PROPOSAL
WOULD NEGATE THE AGENCY'S ADOPTION OF A PRACTICE DESIGNED TO PREVENT,
OR TO RENDER THE
EXCHANGE SERVICE RELATIVELY LESS SUBJECT TO THE RISK OF AN EMPLOYEE
ABUSING HIS OR HER
'MARKDOWN AUTHORITY' WITH RESPECT TO AGENCY PROPERTY HELD FOR SALE,
FOR PERSONAL BENEFIT OR
THE ADVANTAGE OF A FELLOW EMPLOYEE. IN THIS REGARD . . . THE UNION
AGREES THAT THE EXCHANGE
SERVICE PRACTICE IS CONCERNED WITH 'INSURING EMPLOYEE HONESTY AND
SAFEGUARDING AGAINST THEFTS
OF THE EMPLOYER'S PROPERTY BY EMPLOYEES.'
"WE, THEREFORE, FIND THAT THIS UNION PROPOSAL CONCERNS A MATTER WITH
RESPECT TO THE
INTERNAL SECURITY PRACTICES OF THE AGENCY WITHIN THE COMMON MEANING
OF THE PHRASE AND, HENCE,
WITHIN THE MEANING OF THE ORDER . . . ." (6 FLRC AT 619-620)
WEIGHING CAREFULLY THE COMMON MEANING OF THE PHRASE, "INTERNAL
SECURITY", AND THE ANALYSIS OF THE COUNCIL, SET FORTH ABOVE, I SIMPLY DO
NOT FIND THAT THE CHANGE IN REPORTING MILEAGE CONCERNED AN INTERNAL
SECURITY PRACTICE OF RESPONDENT. RESPONDENT'S INSTRUCTIONS, CONSISTENT
WITH GENERAL GOVERNMENT TRAVEL REGULATIONS, HAD ALWAYS REQUIRED, INTER
ALIA,
" . . . POINT OF ORIGIN AND DESTINATION AND SPEEDOMETER READING AT
BEGINNING AND END OF
EACH TRIP . . . ."
THE CONSISTENT PRACTICE FOR MORE THAN 20 YEARS HAD BEEN TO DESIGNATE
TRAVEL AT A PARTICULAR GEOGRAPHICAL LOCATION AS "IN AND AROUND" AND,
ALTHOUGH THE SPEEDOMETER READING WAS SHOWN AT THE BEGINNING AND END OF
"IN AND AROUND", SPEEDOMETER READINGS FOR EVERY START AND STOP HAD NOT
BEEN SHOWN. THE REGIONAL COMMISSIONER'S MEMORANDUM SOUGHT PRECISELY
SUCH INFORMATION. IT IS TRUE, OF COURSE, THAT IT COULD BE ARGUED THAT
THIS, LIKE THE EXCHANGE SERVICE PROVISION DISCUSSED BY THE COUNCIL,
CONCERNED "EMPLOYEE HONESTY" IF ADDITIONAL DETAIL OF THE SPEEDOMETER
READING FOR EVERY START AND STOP TENDED TO DISCOURAGE INFLATED CLAIMS
FOR MILEAGE. FOLLOWED TO ITS LOGICAL CONCLUSION, RESPONDENT'S POSTURE
OF PROTECTING THE TREASURY, WHILE WHOLLY LAUDABLE, WOULD ARROGATE TO
MANAGEMENT, UNDER THE GUISE OF "SECURITY", CONTROL OVER MOST, IF NOT
ALL, CONDUCT OF ITS EMPLOYEES THAT INVOLVED PAYMENT OF MONEY. I DO NOT
BELIEVE THE TERM "SECURITY" CAN BE SO EXPANSIVELY CONSTRUED. RATHER, AS
THE COUNCIL EMPHASIZED, IT MUST BE ACCORDED THE MEANING COMMONLY
ASCRIBED TO IT, AND, IN MY OPINION, THE CHANGE SOUGHT TO BE MADE BY
RESPONDENT BY THE REGIONAL COMMISSIONER'S MEMORANDUM OF SEPTEMBER 20,
1979, DID NOT CONCERN "INTERNAL SECURITY PRACTICES OF THE AGENCY" AND
WAS NOT, THEREFORE, A RESERVED RIGHT OF MANAGEMENT PURSUANT TO SEC.
6(A)(1) OF THE STATUTE. IN REACHING THIS CONCLUSION, CONSIDERATION HAS
BEEN GIVEN TO UNITED STATES ARMY, ELECTRONICS COMMAND, FORT MONMOUTH,
NEW JERSEY, A/SLMR NO. 653, 6 A/SLMR 228, 6 A/SLMR SUPP. 89(1976) WHICH,
WHILE DISTINGUISHABLE, IS FULLY IN ACCORD IN PRINCIPLE.
BECAUSE RESPONDENT CHANGED AN ESTABLISHED CONDITION OF EMPLOYMENT, IT
WAS REQUIRED TO GIVE THE UNION NOTICE OF ITS PROPOSED CHANGE AND AFFORD
THE UNION AN OPPORTUNITY TO BARGAIN BEFORE IMPLEMENTING SUCH CHANGE.
OBVIOUSLY, RESPONDENT DID NEITHER. THUS, THE REGIONAL COMMISSIONER'S
MEMORANDUM UNILATERALLY CHANGED A CONDITION OF EMPLOYMENT, WAS EFFECTIVE
WHEN RECEIVED, AND THE UNION'S REQUEST TO NEGOTIATE THE DECISION WAS
REJECTED. THE CHANGE OF THE ESTABLISHED PROCEDURE OF REPORTING MILEAGE
WAS SIGNIFICANT IN THAT SUBSTANTIALLY MORE DETAIL WAS REQUIRED WITH THE
NECESSITY FOR SHOWING SPEEDOMETER READINGS FOR EVERY START AND STOP.
CONTRARY TO RESPONDENT'S ASSERTION, SUCH CHANGE WAS NOT DE MINIMIS.
DEPARTMENT OF THE AIR FORCE, MALMSTROM AIR FORCE BASE, MONTANA, 2 FLRA
NO. 2(1979); 4392 AEROSPACE SUPPORT GROUP, VANDENBERG AIR FORCE BASE,
CALIFORNIA, DEPARTMENT OF THE AIR FORCE, 2 FLRA NO. 14(1979); INTERNAL
REVENUE SERVICE, AUSTIN SERVICE CENTER, 2 FLRA NO. 97(1980). NOT ONLY
WAS MORE DETAIL REQUIRED, BUT THERE WAS A SHIFT FROM ACCOUNTABILITY FOR
TOTAL MILEAGE TO ACCOUNTABILITY FOR EVERY START AND STOP WHICH DIRECTLY
RESULTED IN REJECTION OF MR. SINCLAIR'S OCTOBER EXPENSE VOUCHER.
BY ISSUANCE OF THE MEMORANDUM OF SEPTEMBER 20, 1979, WITHOUT NOTICE
TO THE UNION AND WITH INSTRUCTIONS THAT IT BE IMPLEMENTED UPON RECEIPT,
REGION VI VIOLATED SECTIONS 16(A)(5) AND (1) OF THE STATUTE, VETERANS
ADMINISTRATION, 1 FLRA NO. 101, FLRA REPORT OF CASE DECISIONS NO. 15,
SEPTEMBER 25, 1979; NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND
SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, WASHINGTON, D.C., FLRC
NO. 76A-57, 5 FLRC 303(1977), A/SLMR NO. 873, 7 A/SLMR 618(1977). IN
VETERANS ADMINISTRATION, SUPRA, THE AUTHORITY STATED, IN PART,
" . . . IT HAS BEEN HELD BY THE COUNCIL THAT THE ACTS AND CONDUCT OF
AGENCY MANAGEMENT, AT
A HIGHER LEVEL OF AN AGENCY'S ORGANIZATION, MAY PROVIDE THE BASIS FOR
FINDING A VIOLATION OF
ANY PART OF SECTION 19(A) OF THE ORDER, BUT, MAY NOT, STANDING ALONE,
PROVIDE THE BASIS FOR
FINDING A SEPARATE VIOLATION BY 'AGENCY MANAGEMENT' AT A LOWER
ORGANIZATIONAL LEVEL OF THE
AGENCY SOLELY ON THE BASIS OF ITS MINISTERIAL ACTIONS IN IMPLEMENTING
THE DIRECTIONS FROM
HIGHER AGENCY AUTHORITY. BASED ON THIS RATIONALE, THE AUTHORITY
FINDS THAT THE VETERANS
ADMINISTRATION AT THE AGENCY LEVEL VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER BY, IN
EFFECT, PROHIBITING THE LOCAL VA HOSPITAL FROM NEGOTIATING WITH AFGE,
LOCAL 1739. FURTHER,
THE AUTHORITY FINDS THAT THE VA HOSPITAL IN SALEM, VIRGINIA, BY
FOLLOWING THE DIRECTIONS FROM
HIGHER AGENCY MANAGEMENT, DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF
THE ORDER."
THERE ARE SIGNIFICANT DIFFERENCES IN THE STATUTE WHICH MAY WELL
WARRANT ELIMINATION OF THE DISTINCTIONS BETWEEN LEVELS OF AGENCY
MANAGEMENT ALTOGETHER /11/ FOR EXAMPLE SEC. 3(A)(13) OF THE STATUTE
PROVIDES, IN PART, AS FOLLOWS:
"(12) 'COLLECTIVE BARGAINING' MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO . . . BARGAIN IN A GOOD-FAITH EFFORT TO REACH
AGREEMENT WITH RESPECT TO
CONDITIONS OF EMPLOYEES . . . ."
IN THE PRESENT CASE, THE RECORD IS CLEAR THAT MESSRS. GONZALES AND
HENDRICKS PRIVATELY CONCLUDED ON SEPTEMBER 25, 1979, THAT THE UNION
WOULD BE PERMITTED TO BARGAIN ONLY ON IMPACT AND IMPLEMENTATION, WHICH
CONCLUSION WAS PLAINLY DICTATED BY THE REGIONAL COMMISSIONER'S
MEMORANDUM AS WELL AS BY THE INSTRUCTIONS THEY, AS SUPERVISORS, WERE
GIVEN AT THE CONFERENCE. MR. GONZALES SO INFORMED LOCAL 1823'S
EXECUTIVE VICE PRESIDENT ON SEPTEMBER 26. I CREDIT MR. SINCLAIR'S
TESTIMONY THAT ON, OR ABOUT OCTOBER 5, HE TOLD MR. HENDRICKS HE WANTED
TO NEGOTIATE RESPONDENT'S PROPOSED CHANGE BEFORE IT WAS IMPLEMENTED
("PUT INTO EFFECT"); THAT MR. HENDRICKS SAID ALL RIGHT, LET'S
NEGOTIATE; THAT MR. SINCLAIR TOLD MR. HENDRICKS THAT BEFORE HE COULD
NEGOTIATE HE NEEDED ANSWERS TO SOME QUESTIONS, WHICH HE STATED; AND
THAT MR. HENDRICKS TOLD MR. SINCLAIR THAT HE WOULD FIND OUT ABOUT THE
QUESTIONS MR. HENDRICKS HAD RAISED. I HAVE CREDITED MR. SINCLAIR'S
TESTIMONY, IN PART BECAUSE, IN SUBSTANCE, HIS TESTIMONY WAS CORROBORATED
BY MR. HENDRICKS LETTER OF OCTOBER 25, 1979, IN WHICH MR. HENDRICKS
STATED, IN PART, "YOU, HOWEVER, CONSISTENTLY HOLD (SIC) THAT . . . YOU
WILL NOT AGREE TO ITS IMPLEMENTATION BEFORE NEGOTIATIONS ON THE POLICY .
. . ." (G.C. EXH. 7); IN PART, BECAUSE MR. HENDRICKS TESTIFIED THAT
MR. SINCLAIR RAISED A "GOOD POINT"; AND, IN PART, BECAUSE HIS TESTIMONY
WAS INHERENTLY CONSISTENT. ON THE OTHER HAND, MR. HENDRICKS' TESTIMONY
THAT HE DISCUSSED A QUESTION RAISED BY MR. SINCLAIR WITH MR. GONZALES IS
MORE CONSISTENT WITH HIS HAVING TOLD MR. SINCLAIR INITIALLY THAT HE
WOULD FIND OUT THEN WITH MR. HENDRICKS' TESTIMONY THAT HE TOLD MR.
SINCLAIR HE COULD ACCEPT MR. SINCLAIR'S POSITION. ACCORDINGLY, I
CONCLUDE, AS MR. SINCLAIR TESTIFIED, THAT AT HIS INITIAL DISCUSSION WITH
MR. HENDRICKS, ON OR ABOUT OCTOBER 5, HE REQUESTED NEGOTIATION OF THE
PROPOSED CHANGE; THAT MR. HENDRICKS AGREED TO NEGOTIATE; THAT MR.
SINCLAIR ASKED FOR CERTAIN INFORMATION IN ORDER TO NEGOTIATE; AND THAT
MR. HENDRICKS PROMISED TO FIND OUT AND GET BACK TO HIM. WHILE IT IS
CLEAR THAT MR. HENDRICKS TOLD MR. SINCLAIR, IN SUBSTANCE, THAT "THIS IS
WHAT WE ARE GOING TO IMPLEMENT FOR THIS MONTH", AS MR. HENDRICKS
TESTIFIED, OR "THIS IS A NEW WAY THAT WE ARE GOING TO HAVE TO MAKE OUT
OUR TRAVEL VOUCHERS . . . THIS IS AN ORDER FROM THE REGIONAL
COMMISSIONER AND WE HAVE TO DO IT LIKE THIS", AS MR. SINCLAIR TESTIFIED;
NEVERTHELESS, WHEN MR. SINCLAIR DEMANDED NEGOTIATIONS ON THE POLICY,
MR. HENDRICKS AGREED TO NEGOTIATE AND AGREED TO OBTAIN THE INFORMATION
REQUESTED BY MR. SINCLAIR. AT THEIR NEXT MEETING THE FOLLOWING WEEK,
MR. HENDRICKS REFUSED TO NEGOTIATE THE POLICY, ALTHOUGH HE DID TELL MR.
SINCLAIR HE WAS WILLING TO NEGOTIATE IMPACT AND IMPLEMENTATION. IT IS
UNNECESSARY TO RESOLVE THE CONFLICT IN TESTIMONY AS TO WHETHER MR.
HENDRICKS EVER RESPONDED TO MR. SINCLAIR'S REQUEST FOR INFORMATION FOR
THE REASON THAT MR. HENDRICKS REFUSED, AT ALL SUBSEQUENT MEETINGS WITH
MR. SINCLAIR, TO NEGOTIATE FOR THE ASSERTED REASON THAT THE "REQUIREMENT
IS NOT NEW AND IS, THEREFORE, NOT SUBJECT TO NEGOTIATIONS" (G.C. EXH. 7;
TR. 60).
IN FASHIONING THE REMEDY, INCLUSION OF THE DISTRICT MIGHT BE
APPROPRIATE UNDER THE LANGUAGE OF VETERANS ADMINISTRATION, SUPRA, ON THE
THEORY THAT MR. HENDRICKS' STATED REASON FOR REFUSING TO NEGOTIATE WAS
NOT, DIRECTLY, INSTRUCTIONS FROM HIGHER HEADQUARTERS AND, THEREFORE, THE
ACTS AND CONDUCT OF AGENCY MANAGEMENT AT A HIGHER LEVEL DID NOT STAND
ALONE; BUT, FOR REASONS WELL STATED BY JUDGE ARRIGO, IN BOSTON DISTRICT
RECRUITING COMMAND, BOSTON, MASSACHUSETTS, 94TH U.S. ARMY RESERVE
COMMAND, HANSCOM AIR FORCE BASE, MASSACHUSETTS, COMMANDER, FORT DEVANS,
FORT DEVANS, MASSACHUSETTS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C.,
DEPARTMENT OF DEFENSE, WASHINGTON, D.C., CASE NOS 1-CA-206, 1-CA-207,
1-CA-208, 1-CA-209, 1-CA-303, AND 1-CA-304(1980), "ORGANIZATIONALLY
THERE IS A COMMONALITY WHICH BINDS TOGETHER ALL THESE COMPONENTS OF DOD
(DEPARTMENT OF DEFENSE) . . . . IT WAS DOD'S REGULATIONS WHICH WERE
ACTED UPON AND TRANSMITTED THROUGH DOA'S (DEPARTMENT OF THE ARMY)
REGULATIONS TO FORT DEVANS FOR IMPLEMENTATION . . . WHILE I HAVE
CONCLUDED THAT FORT DEVANS VIOLATED THE STATUTE . . . ALL RELATED
ORGANIZATIONS INVOLVED ARE CHARGED TO COOPERATE IN THE EFFECTUATION OF
THE ORDER RECOMMENDED HEREIN . . . ", MORE APPROPRIATELY, ALL RELATED
LEVELS OF MANAGEMENT OF RESPONDENT RESPONSIBLE FOR THE VIOLATION OF
SECS. 16(A)(5) AND (1) SHOULD BE CHARGED TO COOPERATE IN THE
EFFECTUATION OF THE ORDER RECOMMENDED.
HAVING FOUND THAT REGION VI VIOLATED SEC. 16(A)(5) AND, DERIVATIVELY,
SEC. 16(A)(1), OF THE STATUTE BY ITS UNILATERAL ISSUANCE OF ITS
MEMORANDUM WHICH CHANGED THE MANNER OF REPORTING MILEAGE AND THAT THE
GALVESTON DISTRICT VIOLATED SEC. 16(A)(5) AND, DERIVATIVELY, SEC.
16(A)(1), OF THE STATUTE BY ITS REFUSAL TO BARGAIN ON THE DECISION TO
CHANGE AN ESTABLISHED CONDITION OF EMPLOYMENT, /12/ IT IS RECOMMENDED
THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7), AND
SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5 C.F.R. CHAPTER
XIV, 2423.26, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, THE
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION VI, SOCIAL SECURITY ADMINISTRATION, GALVESTON, TEXAS,
DISTRICT, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO NEGOTIATE WITH THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1823
(HEREINAFTER REFERRED TO AS "LOCAL 1823"), THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES IN
THE GALVESTON DISTRICT, ON A PROPOSAL TO CHANGE THE MANNER OF
REPORTING TRAVEL MILEAGE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) WITHDRAW THE CHANGE CONCERNING REPORTING OF TRAVEL MILEAGE IN THE
GALVESTON DISTRICT,
SET FORTH IN THE REGIONAL COMMISSIONER'S MEMORANDUM DATED SEPTEMBER
20, 1979, AND REINSTATE IN
THE GALVESTON DISTRICT THE PROCEDURES AND POLICIES RELATING TO THE
REPORTING OF TRAVEL MILEAGE
AS PRACTICED IMMEDIATELY PRIOR TO SEPTEMBER 20, 1979.
(B) NOTIFY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1823
OF ANY INTENDED
DECISION TO CHANGE THE MANNER OF REPORTING TRAVEL MILEAGE IN THE
GALVESTON DISTRICT AND UPON
REQUEST OF LOCAL 1823, MEET AND CONFER TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON
ANY SUCH PROPOSED CHANGE.
(C) POST AT OFFICES OF REGION VI, DALLAS, TEXAS, AT THE GALVESTON,
TEXAS, DISTRICT OFFICE,
AND AT THE ANGLETON, TEXAS, BRANCH OFFICE, 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 REGIONAL COMMISSIONER, REGION VI, SOCIAL
SECURITY ADMINISTRATION,
AND SHALL BE POSTED AND MAINTAINED BY THE REGIONAL COMMISSIONER FOR
60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND
OTHER PLACES AT EACH OFFICE
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE REGIONAL
COMMISSIONER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) PURSUANT TO SEC. 2423.30 OF THE FINAL RULES AND REGULATIONS,
NOTIFY THE REGIONAL
DIRECTOR OF REGION 6, FEDERAL LABOR RELATIONS AUTHORITY, ROOM 450,
DOWNTOWN POST OFFICE
STATION, BRYAN AND ERVAY STREETS, DALLAS, TEXAS 75221, IN WRITING,
WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER AS TO WHAT STEPS HAVE TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 29, 1981
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 FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL WITHDRAW AND RESCIND THE CHANGE CONCERNING REPORTING OF
TRAVEL MILEAGE IN THE GALVESTON DISTRICT WHICH WAS SET FORTH IN THE
REGIONAL COMMISSIONER'S MEMORANDUM DATE SEPTEMBER 20, 1979.
WE WILL FORTHWITH REINITIATE IN THE GALVESTON DISTRICT THE PROCEDURE
AND POLICIES RELATING TO THE REPORTING OF TRAVEL MILEAGE AS PRACTICED
IMMEDIATELY PRIOR TO SEPTEMBER 20, 1979.
WE WILL NOT REFUSE TO NEGOTIATE WITH NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1823 ON ANY DECISION TO CHANGE THE MANNER OF REPORTING
TRAVEL MILEAGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS BY SEC. 2 OF THE
STATUTE.
WE WILL NOTIFY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1823 OF ANY INTENDED DECISION TO CHANGE THE MANNER OF REPORTING TRAVEL
MILEAGE IN THE GALVESTON DISTRICT AND UPON REQUEST BY LOCAL 1823, MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON ANY
SUCH PROPOSED CHANGE.
REGIONAL VI, SOCIAL SECURITY
ADMINISTRATION, DEPARTMENT
OF HEALTH AND HUMAN SERVICES
DATED: . . . BY: . . .
REGIONAL COMMISSIONER
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, REGION 6, WHOSE
ADDRESS IS: ROOM 450, DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY
STREETS, DALLAS, TEXAS 75221 AND WHOSE TELEPHONE NUMBER IS (214)
767-4996.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7116(A)(1) AND (5) PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER(.)
/2/ SEE, E.G., DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION, OFFICE OF PROGRAM OPERATIONS AND FIELD
OPERATIONS, SUTTER DISTRICT OFFICE, SAN FRANCISCO, CALIFORNIA, 5 FLRA
NO. 63(1981), WHEREIN THE AUTHORITY FOUND THAT AGENCY MANAGEMENT AT THE
DISTRICT OFFICE LEVEL VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE
BY ANNOUNCING A UNILATERAL CHANGE IN POLICY AFFECTING THE EMPLOYEES'
CONDITIONS OF EMPLOYMENT NOTWITHSTANDING THAT EXCLUSIVE RECOGNITION AND
THE CURRENT COLLECTIVE BARGAINING AGREEMENT REMAINED AT THE HIGHER
REGIONAL LEVEL WITHIN THE AGENCY.
/3/ IN SO CONCLUDING, THE AUTHORITY, IN FURTHER AGREEMENT WITH THE
JUDGE, REJECTS THE AGENCY'S CONTENTION THAT THE REGIONAL COMMISSIONER'S
CONDUCT CONSTITUTED AN EXERCISE OF MANAGEMENT'S RESERVED RIGHT UNDER
SECTION 7106(A)(1) OF THE STATUTE "TO DETERMINE THE . . . INTERNAL
SECURITY PRACTICES OF THE AGENCY(.)" SEE E.G., NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON,
YONGSAN, KOREA, 4 FLRA NO. 23(1980), APPEAL DOCKETED, NO. 80-2341 (D.C.
CIR. OCT. 23, 1980). MOREOVER, THE AUTHORITY REJECTS AS UNSUPPORTED THE
AGENCY'S CONTENTION THAT THE JUDGE'S DECISION CONFLICTS WITH
GOVERNMENT-WIDE GSA TRAVEL REGULATIONS WHICH REQUIRE THE SUBMISSION OF
TRAVEL VOUCHERS IN SUFFICIENT DETAIL TO PERMIT PROPER REVIEW BY
AGENCIES. THUS, THE AGENCY HAS FAILED TO ESTABLISH THAT PREEXISTING
INSTRUCTIONS REQUIRING "POINT OF ORIGIN AND DESTINATION AND SPEEDOMETER
READING AT BEGINNING AND END OF EACH TRIP" WERE INCONSISTENT WITH SUCH
TRAVEL REGULATIONS.
/4/ MOREOVER, THE AUTHORITY CONCLUDES, IN AGREEMENT WITH THE JUDGE,
THAT WHILE THE GALVESTON DISTRICT NOTIFIED NFFE OF THE CHANGE IN THE
PRACTICE OF REPORTING MILEAGE AND REPEATEDLY OFFERED TO BARGAIN
CONCERNING THE IMPACT AND IMPLEMENTATION OF THAT CHANGE, THE RESPONDENT
REGION WAS NOT THEREBY RELIEVED OF THE DUTY TO BARGAIN REGARDING THE
CHANGE ITSELF.
/5/ AS AMENDED AT HEARING BY AGREEMENT OF THE PARTIES.
/6/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE
HEREINAFTER, ALSO, REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
PORTION OF THE STATUTE REFERENCE. FOR EXAMPLE, SECTION 7116(A)(1)
SIMPLY AS "16(A)(1)".
/7/ IN VIEW OF THE AMENDMENT OF THE COMPLAINT, TO WHICH RESPONDENT
DID NOT OBJECT, NO PROBLEM OF IDENTIFYING THE PROPER RESPONDENT REMAINS.
CF., INTERNAL REVENUE SERVICE, WASHINGTON D.C. AND INTERNAL REVENUE
SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA NO. 37(1980).
/8/ MR. SINCLAIR STATED AT THE HEARING THAT HIS TRAVEL EXPENSES FOR
OCTOBER HAD NEVER BEEN PAID.
/9/ WHILE NOT MATERIAL TO DISPOSITION OF THIS CASE AND, ACCORDINGLY,
NOT DECIDED, MR. SINCLAIR'S TESTIMONY CONCERNING INSTRUCTIONS ON USE OF
"IN AND AROUND" BY THE REGION STRONGLY INFERS THAT THE PRACTICE EXTENDED
TO ALL OF REGION VI.
/10/ BY CONTRAST, COMPLIANCE BY A PORTION OF THE BARGAINING UNIT WITH
A REGULATION OR POLICY CONSISTENTLY FOLLOWED THROUGHOUT THE MAJORITY OF
THE BARGAINING UNIT MAY NOT CONSTITUTE A CHANGE IN A CONDITION OF
EMPLOYMENT. DEPARTMENT OF DEFENSE, UNITED STATES ARMY, FORT SAM
HOUSTON, TEXAS, 1 FLRA NO. 68, FLRA REPORT OF CASE DECISIONS NO. 10,
JULY 11, 1979. OBVIOUSLY, SUCH CONSIDERATION IS NOT APPLICABLE HERE IN
VIEW OF THE CONSISTENT AND UNIFORM PRACTICE IN THE GALVESTON DISTRICT,
WHICH IS THE SOLE UNIT OF RECOGNITION INVOLVED.
/11/ IN ALL CANDOR, WHILE THE COUNCIL'S DECISION IN NAVAL AIR REWORK,
SUPRA, GREATLY SIMPLIFIED THE PROBLEM OF IDENTIFYING THE PROPER
RESPONDENT UNDER THE ORDER AND ITS CONTINUED APPLICATION TO EXECUTIVE
ORDER CASES IS NOT QUESTIONED, PERPETRATION OF ARTIFICIAL DISTINCTIONS
BETWEEN LEVELS OF AGENCY MANAGEMENT UNDER THE STATUTE DOES NOT SEEM
WARRANTED. SEE, FOR EXAMPLE, INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA NO.
37(1980), AND IN PARTICULAR THE DISCUSSION OF JUDGE ARRIGO AT PAGES 7-9
OF HIS DECISION IN 1-CA-77 WHICH THE AUTHORITY, WHILE ADOPTING HIS
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, FOUND IT UNNECESSARY TO PASS
UPON. UNDER THE STATUTE, DISMISSAL OF SUCH 16(A)(5) AND (1) CHARGES
AGAINST THE HOSPITAL, WHICH IN FACT HAD REFUSED TO BARGAIN ALBEIT AT
DIRECTION OF HIGHER HEADQUARTERS, ACHIEVES NO DISCERNABLE PURPOSE.
/12/ GENERAL COUNSEL'S ASSERTION THAT " . . . ASSUMING ARGUENDO, THAT
THE BARGAINING OBLIGATION IN THE INSTANT CASE GOES ONLY TO THE IMPACT
AND IMPLEMENTATION, OF THE DECISION, IT MUST BE NOTED THAT RESPONDENT
HAS EVEN FAILED TO AFFORD THE UNION SUCH A BARGAINING OPPORTUNITY."
(G.C. BRIEF PP. 7-8) IS WHOLLY UNSUPPORTED BY THE RECORD. TO THE
CONTRARY, THE RECORD SHOWS AFFIRMATIVELY AND WITHOUT CONTRADICTION THAT
RESPONDENT REPEATEDLY OFFERED TO BARGAIN ON IMPACT AND IMPLEMENTATION
AND THAT LOCAL 1823 FAILED AND REFUSED TO DO SO. IF THE DECISION TO
CHANGE THE METHOD OF REPORTING TRAVEL MILEAGE WERE A RESERVED RIGHT OF
MANAGEMENT AND RESPONDENT WAS OBLIGATED TO BARGAIN ONLY ON IMPACT AND
IMPLEMENTATION OF ITS DECISION THE COMPLAINT WOULD, NECESSARILY, HAVE
BEEN DISMISSED.