[ v11 p390 ]
11:0390(76)CA
The decision of the Authority follows:
11 FLRA NO. 76
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 3-CA-831
3-CA-2680
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative actions. The Respondent filed exceptions with respect to the Judge's Decision.
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. 1
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 Social Security Administration shall:
1. Cease and desist from:
(a) Falling or refusing to negotiate in good faith with the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, with regard to the decision, impact and implementation, and termination of flexible or compressed work schedules to the extent consonant with law and regulations. [ v11 p 390]
(b) Implementing or terminating flexible or compressed work schedules without first negotiating in good faith, to the extent consonant with law and regulations, with the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative.
(c) 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 effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:
(a) Upon request of the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, negotiate in good faith, to the extent consonant with law and regulations, concerning the decision, impact and implementation, and termination of flexible or compressed work schedules.
(b) Upon request of the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, terminate any or all work schedule experiments implemented after August 30, 1979 without having been negotiated with the National Office of the American Federation of Government Employees, AFL - CIO.
(c) Upon request of the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, reinstitute, to the extent consonant with law and regulations, any or all work schedule experiments terminated after August 30, 1979 without such termination having been negotiated with the National Office of the American Federation of Government Employees, AFL - CIO.
(d) Post at all of its facilities where employees represented by the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, are located, 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 Commissioner, Social Security Administration, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. [ v11 p 391]
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region III, 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., February 18, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v11 p 392]
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 fail or refuse to negotiate in good faith with the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, with regard to the decision, impact and implementation, and termination of flexible or compressed work schedules to the extent consonant with law and regulations.
WE WILL NOT implement or terminate flexible or compressed work schedules without first negotiating in good faith, to the extent consonant with law and regulations, with the National Office of the American Federation of Government employees, AFL - CIO, the employees' exclusive collective bargaining representative.
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 Federal Service Labor - Management Relations Statute.
WE WILL upon request of the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, negotiate in good faith, to the extent consonant with law and regulations, concerning the decision, impact and implementation, and termination of flexible or compressed work schedules.
WE WILL, upon request of the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, terminate any or all work schedule experiments implemented after August 30, 1979 without having been negotiated with the National Office of the American Federation of Government Employees, AFL - CIO. [ v11 p 393]
WE WILL upon request of the National Office of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, reinstitute, to the extent consonant with law and regulations, any or all work schedule experiments terminated after August 30, 1979 without such termination having been negotiated with the National Office of the American Federation of Government Employees, AFL - CIO.
___________________________
(Agency or Activity)
Dated: ______ By: ___________________________
(Signature)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority Region III, whose address is: 1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8507. [ v11 p 394]
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 3-CA-831
3-CA-2680
Daniel H. Green, Esq.
For the Respondent
Patricia N. Eanet
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
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. 7101, et. seq. (herein referred to as the Statute).
Upon unfair labor practice charges filed by the American Federation of Government employees (herein referred to as the Union, AFGE, or AFGE National), on January 28, 1980 and July 6, 1981 against the Social Security Administration (herein referred to as Respondent or SSA), the General Counsel of the Authority, by the Regional Director for Region 3, issued an Order Consolidating Cases, Complaint and Notice of Hearing on November 16, 1981. The Complaint alleged that Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to bargain in good faith with the Union concerning its conducting work schedule experiments at various of its facilities. [ v11 p395 ]
A hearing on the Complaint was conducted on December 16 and 17, 1981 in Baltimore, Maryland at which time Respondent and the General Counsel were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Counsel for the General Counsel gave oral argument and Respondent filed a brief. 2
Upon the entire record in this matter, 3 my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following:
Findings of Fact
The Federal Employees Flexible and Compressed Work Schedule Act of 1978 (herein referred to as the Work Schedule Act), provided Federal agencies a 3-year period from its effective date in which to experiment with varied work schedules to evaluate the effectiveness and desirability of permanently maintaining flexible or compressed work schedules within Federal executive agencies. 4 Respondent wished to participate in this experiment and in March 1979 met various AFGE representatives. 5 At that time AFGE, through numerous local unions (herein individually referred to as the Local Union), represented over 100 separate bargaining units of Respondent's employees and had been granted National Consultation rights. 6 During the meeting Respondent informed the Union representatives it intended to participate in work schedule modification experiments under the Work Schedule Act. The Union expressed an interest in [ v11 p396 ] the experiments and its desire, on behalf of the various bargaining units represented by AFGE, to bargain on the issue.
In the Summer of 1979 Respondent began selecting which components and localities it desired to have participate in the experiment. Beginning in the Summer through the Fall of 1979 Respondent began notifying and "dealing" with union representatives of those Local Unions which had exclusive bargaining rights at the selected locations.
However, on August 30, 1979, the local units were consolidated into one overall National collective bargaining unit. 7 After the consolidation the President of AFGE delegated authority to administer the bargaining unit to a General Committee. Sometime in September 1979, Respondent met with representatives of the General Committee which is comprised of the Local Union representing employees in the Headquarters component, and five National Councils, one representing each of the following SSA components: Field Offices, Hearings and Appeals' Offices, Data Operation Centers, field Assessment Offices, and Payment Centers. At this meeting the Union's representatives again expressed an intent to bargain on the work schedules experiment and Respondent indicated it was awaiting the Union's bargaining request.
By memorandum of October 25, 1979, John Harris, Executive Vice President for the AFGE National Council for SSA Field Operations indicated to SSA that he was aware of activities concerning implementation of work schedule experiments in various SSA offices and, inter alia, requested that negotiations on such experiments for field offices be undertaken with the Field Office Council as soon as possible. Respondent refused the request to negotiate since union recognition was with the AFGE National Union and not with the National Council for Field Operations.
Subsequently, by letter dated October 30, 1979, the AFGE National Union demanded Respondent bargain, inter alia, on compressed work weeks and flexitime. In its letter AFGE noted:
"We understand that an extension of time until January 1, 1980 has been granted to SSA by OPM to propose such experiments. It has also come to our attention that some of the regional commissioners have notified field installations to propose plans at their option."
The letter designated William Nussbaum, then President of AFGE National Council of Field Operations Locals, as the person Respondent was to contact with regard to arranging a date for negotiations on the [ v11 p397 ] matters raised and requested that no proposed change be implemented until negotiations took place.
Prior to consolidation Respondent bargained directly with the Local Unions representing the employees in the particular collective bargaining unit for which the Local had representational rights. Since the consolidation Respondent had been receiving correspondence from the various components which made up the Union's General Committee and Respondent expressed confusion as to which Union representatives it should now deal. Respondent relayed its concern to the AFGE National Office and suggested the Union designate a specific person to be the point of contact.
A few days prior to December 6, 1979, the AFGE National Office appointed Arthur Johnson spokesperson for the AFGE General Committee and SSA was so informed. On December 6, 1979 representatives of Respondent met with Johnson and another representative of the AFGE National Office. At the meeting Respondent was informed that on any matter involving more than one component of SSA, Johnson was to be the Union contact. If the matter involved only one component of SSA then Respondent was free to contact the person designated by the Union to represent that component. 8
During the meeting of December 6 the parties discussed some items which had developed since the consolidation of units. Shortly before this meeting Johnson became aware that SSA was contemplating work schedule experiments in some of its components and raised questions concerning the experiments. Respondent averred it had no jurisdiction over the experiments and contended that the Department of Health, Education and Welfare, 9 of which SSA is a subordinate organization, had jurisdiction over this matter and SSA could not "do anything" on the subject apparently because HEW had not given adequate delegation to SSA with regard to implementing work schedule experiments.
On December 20, 1979 Respondent wrote to Johnson and informed him, inter alia, that SSA intended to conduct work schedule experiments in various of its components including several components within the consolidated bargaining unit e.g. Great Lakes Program Service Center, the Western Program Service Center, and District and Branch Offices in the Atlanta Region of SSA. The letter explained, however, that while HEW had [ v11 p398 ] delegated authority to SSA to approve experiments involving employees within SSA control, such authority did not extend to SSA employees in or under HEW Regional Office control. 10 With regard to Service Center components Respondent's letter to Johnson stated:
"...we will ensure that appropriate discussions with the local representatives occur prior to implementation of any experiment recommended for the organizational components identified."
The letter further noted that while the Atlanta Region of SSA was contemplating an experiment involving District and Branch Offices, "appropriate discussions" with the union would take place only upon obtaining the necessary approval of the HEW Principle Regional Official. The letter stated that all experiments were required to be approved and implemented by February 1, 1980.
Sometime around the first week of January 1980 the Great Lakes Program Service Center and the Local Union at the facility entered into an agreement providing for a work schedule experiment for employees at that location. On August 29, 1979 management and the Local Union had executed an agreement to negotiate on the subject. The Western Program Service Center and the Local Union for the facility executed a work schedule experiment on January 3, 1980, the parties having begun negotiations on work schedule experimentation in August of 1979.
In early January 1980 11 HEW, now appreciating the implications deriving from the existence of a National collective bargaining unit, authorized SSA to negotiate with AFGE on work schedule experiments for Field Offices.
With regard to work schedule experiments in Field Offices the record reveals Respondent conducted experiments in 26 Districts within the Atlanta Region, 16 of which were represented by AFGE. All of these [ v11 p399 ] District Offices except one had agreements for work schedule experiments signed by District Officer management and Local AFGE Union representatives. Of the 16 District Offices, however, 3 were executed between September 20 and September 26, 1979, 12 2 were executed in October 1979, 13 while the remainder were executed on various dated between January 3, 1980 and January 25, 1980. 14 One District Office with a "dormant" Local Union had a work schedule experiment to be effective October 1, 1979 which was signed but undated by two members of the Local. The record also contains five other agreements between SSA management officials and Local AFGE Union representatives for various SSA Offices, one of which had a "revision" date of February 26, 1980, 3 being executed in March 1980, and 1, although signed by management in March, was signed by the Local Union representative on April 15, 1980.
Respondent's December 20 letter was received in Johnson's office on December 26, 1979, Johnson was on leave at that time, not returning to his office until sometime during the first or second week of January 1980. In the Union's view Respondent's December 20 letter constituted a refusal to bargain on work schedule experiments and accordingly, the Union filed an unfair labor practice charge against HEW and SSA on January 28, 1980 (Case No. 3-CA-831). 15 Further, by letter dated January 23, 1980 Johnson responded to Respondent's December 20 letter as follows:
"In your letter of 12/20/79 you indicated that Compressed Work Schedules in SSA field offices are in the process of being implemented.
"Attachment 2 of your letter shows several components within the consolidated bargaining unit are scheduled for this experiment. We consider this a major change which affects the bargaining unit as a whole and is a topic for the consolidated unit, not Local Unions as you propose.
"Therefore, please consider this a request to bargain on the above matter. Please contact me so that we can set up a mutually acceptable date for negotiations. It is also requested that none of the [ v11 p400 ] proposed changes be implemented until negotiations have taken place."
By February 1, 1980, pursuant to the aforementioned agreements, the work schedules of numerous employees in the consolidated unit exclusively represented by AFGE at various of Respondent's facilities had been changed.
In a letter to Johnson dated February 19, 1980 Respondent asked Johnson to forward any proposals on work schedule experiments. Proposals were requested to be received by March 3 at which time Respondent would contact the Union to arrange bargaining. However, representatives of Respondent and the Union were scheduled to meet in early March 1980 to discuss other issues relating to Field Offices and the Union decided to inquire about work schedule experiments at that time.
At the March meeting management made a presentation on work schedule experiments and disclosed for the first time that extensive experimentation was being conducted within the agency and that the experiments had commenced on January 28, 1980. Since the experiments had already been implemented and unfair labor practice charges had been filed on the matter the Union concluded no useful purpose would be served by responding to SSA's February 19 offer to bargain on the subject. 16
Around this same period of time the parties were preparing to engage in negotiations for a National agreement. The Union submitted its initial proposals relative to these negotiations in April 1980. The Union's proposal dealing with flexitime and compressed work schedules provided:
"Upon request from the Union at the appropriate level, the Union and the employer will negotiate procedures for implementing flexitime and/or compressed work schedules." 17 [ v11 p401 ]
In May or June of 1980 SSA submitted its proposals to the Union relative to National negotiations. 18 Management's proposal dealing with flexitime and compressed work schedules provided:
"Upon request from the Union the Administration will enter into negotiations of procedures for implementing flexitime and/or compressed work schedules after a determination by the Administration that flexitime or compressed work schedules are to be implemented in a component."
On July 25, 1980 Region 3 of the Authority issued a Complaint in Case No. 3-CA-831 essentially alleging Respondent failed and refused to bargain on alternative work schedule experiments with the Union by its December 6, 1979 conduct and December 20, 1979 letter, supra. The Complaint while setting forth the December 6 and December 20 denials of the Union's requests to bargain also made specific reference to Respondent's language in its December 20 letter regarding SSA's position that all experiments were to be approved and implemented by February 1, 1980.
The case was set to be heard on October 21, 1980. However, prior thereto the parties agreed to resolve the matter without recourse to litigation and a settlement agreement was executed by SSA on August 28, 1980, signed by the Union on September 15, 1980, and approved by the Regional Director for Region 3 of the Authority on November 28, 1980. The settlement agreement provided, inter alia, for withdrawal of the Complaint and a 60 day posting of a Notice by Respondent. In the Notice Respondent stated, inter alia, it would not: change work schedules by implementing flexitime and compressed work week experiments without providing the Union with notice and an opportunity to negotiate on the change and its impact on unit employees; implement alternative work schedule experiments without prior negotiations with the Union regarding where such experiments shall occur; or interfere with, restrain or coerce employees in the exercise of their statutory rights in any like or related manner. Affirmatively, Respondent stated it would, upon appropriate request, negotiate with the Union regarding the decision, impact and implementation of flexitime and compressed work week experiments.
On October 8, 1980, Johnson sent Respondent the following bargaining demand:
"There are several pending issues between us which require immediate negotiations. Some of these are in [ v11 p402 ] settlement of unfair labor practice charges. Others relate to previous correspondence.
"We are attaching various proposals on these items. We have not endeavored to provide final format to them and we expect there may be modifications to them as we proceed to negotiations. But we are submitting them for your review in the interest of expediting agreement.
"We propose that our designated representatives should meet in Washington on or about November 4, to commence negotiations. (Please refer to my previous correspondence concerning ground rules for "mid-term" negotiations).
"We hope that we can proceed swiftly to a resolution of these matters."
The Union's proposals on compressed workweek and flexitime experiments contained eight specific items and dealt primarily with procedures for negotiating the terms, modification, and termination of the experiments. SSA did not respond to this communication.
A letter from Johnson to Respondent's Acting Director of Labor Relations, Richard Parisi, dated December 4, 1980, titled "Follow-up on pending items", named 18 subjects on which the union was awaiting a response from SSA, including reference to the October 8, 1980 bargaining demand, above. 19 Johnson also stated that the items listed were of "great concern" to the Union and noted that if a response from SSA was not received by December 18, the Union would assume that SSA did not intend to respond. The record shows no response by SSA.
While not specifically communicated to the Union, SSA took the position that the entire subject of work schedule experiments could be dealt with at National negotiations. However, since SSA had already implemented work schedule experiments in the bargaining unit, the Union was treating the existing experiments as a mid-term bargaining matter outside the scope of National negotiations. [ v11 p403 ]
By letters dated February 2, 1981 and March 23, 1981, 20 Johnson made further requests of Parisi that SSA contact him to set up dates to begin negotiations so work schedule experiments and other pending issues might be resolved. Ultimately, Parisi met with Johnson on April 9, 1981. 21 When discussing work schedule experiments the Union was told that SSA was receiving information from subordinate managers that the experiment was not "working out." Thus, Parisi indicated SSA was having some reservations about expanding the experiment and indeed, was not quite sure what course of action management wished to follow. Parisi also mentioned that the issue was "on the table" nationally and informed Johnson he would "get back" to him in a couple of weeks.
The record does not disclose Respondent having subsequently contacted Johnson regarding this matter. However, on April 15, 1981, in relation to National negotiations, SSA submitted a flexitime and compressed work schedule proposal to the Union. That proposal was a simple rewording of Respondent's earlier proposal of May or June 1980, supra.
On May 7, 1981 the Commissioner for Respondent's Atlanta Region notified managers at facilities within the Atlanta Region that since July 25, 1981 was the end of the 18-month work schedule experimental period in that Region, SSA needed to know whether local managers wished to continue, modify or terminate the plans. The Commissioner's memorandum noted that "caution" must be exercised in modifying or terminating agreements in unionized offices in that National negotiations involved work schedule provisions. Attached was a narrative report dealing with work schedule experiments, a copy of which local management was instructed to supply to the Local Unions since, according to the memorandum, the "exclusive representative" was to be given until June 1, 1981 to file its own assessment of the experiment.
On May 11, 1981 the Union wrote Parisi and requested immediate negotiations noting that bargaining demands and proposals on work schedules, and other issues as well, had been outstanding since October 1980 and negotiations were required by the terms of the unfair labor practice settlement. Absent negotiations, the letter went on, litigation would be initiated. The letter also revealed that National negotiations were at impasse and, with regard thereto, preparations were being made to make a submission to the Federal Service Impasses Panel. The record discloses no response having been made to this letter. [ v11 p404 ]
The Union received information sometime in May that termination of work schedule experiments would be proposed in various locations in the Atlanta Region. After receiving information that locations in the Atlanta Region were in fact proposing termination of work schedule experiments Union representative John Harris requested the Commissioner of the Atlanta Region, in May and July, to continue the experiments but was refused. Accordingly, on July 6, 1981 the Union filed the unfair labor practice charge against Respondent in Case No. 3-CA-2680 alleging SSA failed and refused to meet and bargain on matters encompassed by the settlement agreement in Case No. 3-CA-831, and alleging also a continuing refusal to bargain on the work schedule experiments.
By letter to Johnson dated July 13, 1981 Respondent notified the Union that it evaluated the effectiveness of the work schedule experiments and decided that the experiments would be terminated. The letter concluded:
"Unless there is an agreement which provides otherwise, alternative and compressed workweek experimentation nationwide within SSA will terminate on August 15, 1981. We intend to meet our obligations under law and await your proposals for impact bargaining." 22
Johnson responded to SSA's July 13, 1981 notice on July 22. He indicated that the Union was unaware of the locations where agreements existed and requested copies of all agreements, types of experiments and any related record, studies or surveys regarding the experiments. The Union demanded bargaining on the matter and stated the information requested was necessary to prepare for negotiations. Johnson asked that he be contacted to set a mutually acceptable date for negotiations. A copy of the Union's proposals submitted in October 1980, supra, was attached.
On July 29, Parisi wrote to Johnson and gave responses on various subjects that in his works were "... pending from our meetings in April and July." On "Compressed Workweek and Flexitime" he noted the Union's letter of March 23, 1981 and stated:
"SSA is currently evaluating its experience with compressed workweek experiments, which in some cases [ v11 p405 ] has not been as positive as was hoped for. Therefore, pending the outcome of this review, the Administration position is not to initiate additional experiments at this time. Also, as you know, this matter is included in the negotiations for a National agreement."
On August 11, 1981 Johnson replied to Parisi's July 29 letter accusing Respondent of both bypassing National negotiations and refusing to engage in mid-term bargaining. Johnson directed attention to the fact that although prior Union mid-term proposals were submitted, including those of October 1980, no negotiations had occurred. Johnson stated that the Union considered SSA's reference to the matter being included in negotiations for a National agreement to be tantamount to a refusal to bargain. A dispute between the parties had developed on ground rules relative to the number of Union representatives which would be authorized travel and per diem for negotiations and Johnson concluded the letter with a request to meet as soon as possible to settle this issue. A proposal concerning ground rules for mid-term negotiations was attached which included authorizing one Union representative from each of the six components or a number equal to the number of management participants, whichever was greater.
Thereafter, Johnson mentioned the above proposal on August 20, 1981 to Al Siemek, a member of Parisi's staff located in Baltimore, Maryland. Discussion of the ground rules proposal was curtailed since Parisi's office had not yet received the proposals. However, the parties did discuss various 1981 legislation applicable to SSA and Respondent invited Johnson to come from Kansas City, where he is based, to Headquarters in Baltimore to receive a briefing on certain implementation problems. Siemek and Johnson disagreed as to the number of Union negotiators which should be authorized to attend the briefing, with Siemek suggesting the number be limited to two representatives and Johnson apparently insisting on applying the terms of the Union's ground rules proposal. The dispute was unresolved and Siemek told Johnson that Parisi would call back on the following day.
Parisi telephoned Johnson on Friday, August 21. 23 The parties discussed the Union's August 11 ground rules proposal and the implementation of the 1981 Social Security Amendments. Parisi indicated his desire to have a meeting in Baltimore but disagreement arose over the number of Union representatives that would be authorized official time for that purpose. Johnson was reticent about going to Baltimore around that particular time due to prior plans and the PATCO strike and Parisi would not accept the Union's proposal to have representative of the various components on official time for negotiations. Parisi said he was setting [ v11 p406 ] aside September 1st through the 3rd for negotiations. Johnson neither agreed n or disagreed with the dates for negotiations but suggested that a briefing on the 1981 amendments could be handled through a conference call. Parisi said he would consider the suggestion and call back the following Monday, which he failed to do.
By letter dated August 26, 1981 Parisi responded to the Johnson's July 22 request for information regarding work schedule experiments, supra, including supplying copies of agreements between Local Unions and local facility managers. Where termination dates were ascertainable the terms of the agreements indicated that the vast majority of experiments were to terminate as of August 1, 1981. However, according to Parisi's testimony, some remained in effect after August 15 and, indeed, some were still in effect at the time of the hearing in this matter.
On August 27, 1981 Parisi wrote Johnson and notified him that Respondent set aside September 1-3 to meet and discuss various subjects on which Johnson and previously requested to bargain in his August 11 letter, including compressed workweek and flexitime. 24 Parisi also informed Johnson that Respondent would have no more than three representatives for these sessions and therefore travel and per diem was authorized for three AFGE representatives. Respondent further expressed the belief, inter alia, that the parties did not need detailed ground rules for mid-term bargaining but could deal with those matters as they arose by telephone or correspondence. Johnson was to advise Siemek of the names of representatives who would be attending the sessions so that SSA could make necessary leave arrangements.
Johnson did not respond to Parisi's August 27 correspondence. By letter dated September 4, 1981, Parisi recited making "several attempts to arrange a meeting with the Union to resolve a number of pending issues" including "telephone discussions" and the August 27 letter wherein he notified Johnson that he reserved September 1-3 as meeting dates. Parisi then informed Johnson: "Inasmuch as the General Committee has chosen not to meet, I must interpret this as having fulfilled our statutory obligation to the Union. Therefore, I will proceed on that basis with respect to (various) item..." Among the subjects listed by Parisi was the issue of compressed workweek and flexitime.
Johnson informed Parisi that he disagreed that any dates for negotiations were mutually agreed upon and, having concluded that the parties were at impasse over ground rules, invoked the assistance of the [ v11 p407 ] Federal Mediation and Conciliation Service on September 8, 1981 to resolve the mid-term bargaining ground rules disputes. The matter had not yet been resolved when the hearing in this matter closed. 25
Discussion and Conclusions
Counsel for the General Counsel in her opening and closing statements specifically alleges Respondent violated the Statute by failing and refusing to negotiate with the Union concerning the implementation and termination of flexible and compressed workweek experiments. Respondent denies having engaged in the alleged unfair labor practice conduct.
In Department of Health and Human Services, Social Security Administration and Local 1346, American Federation of Government Employees, AFL - CIO, 6 FLRA 202 (June 25, 1981), the General Counsel alleged that SSA violated the Statute by refusing to bargain with AFGE Local 1346 by denying the Local Union's request to bargain pursuant to a reopener provision of a 3-year local contract entered into in 1978. 26 The request to bargain came after the August 30, 1979 consolidation of units herein, the unfair labor practice charge having been filed on December 27, 1979. Respondent, citing the National consolidation, contended, inter alia, that the duty to bargain existed only at the new level of recognition and local management had no obligation to negotiate a modified local agreement. The Authority accepted Respondent's position and dismissed the complaint, stating in part:
"Following the issuance of AFGE's certification for the consolidated unit, the appropriate unit was established at the National level. It is clear, therefore, that the mutual obligation to bargain as articulated in the Statute exists only at that level of exclusive recognition with respect to conditions of employment which affect any employees within the unit; a contrary result would render consolidation meaningless. In other words, once a labor organization is certified as the exclusive representative for a consolidated unit, as here, a new bargaining obligation is created in lieu of such obligations which previously existed regarding smaller units now included in the consolidated unit." (Footnote omitted.) [ v11 p408 ]
Thus the Authority held that at all times after the consolidation of bargaining units on August 30, 1979 Respondent was obligated to recognize and negotiate with AFGE National as the exclusive collective bargaining representative of all employees in the consolidated unit and after consolidation, Local Union constituents of AFGE were without jurisdiction to negotiate agreements on behalf of Respondent's employees absent specific authority having been granted by AFGE National.
In the case herein no such authority had been given to Local Unions and recognition and negotiation with Local Unions in these circumstances undermined the very purpose of consolidation. Respondent was well aware of the obligations which followed consolidation. It never denied it had an obligation to negotiate with AFGE National and indeed took the correct legal position in the Local 1346 case, supra, that after consolidation its duty to bargain existed only at the National level and not the local level. Nevertheless, Respondent after taking such a position, a continued in the case herein to negotiate with Local Unions after August 30, 1979 through April 1980 into July 1981. I find no justification for such conduct and accordingly, I conclude that Respondent, by each act of negotiating, executing, and implementing agreements for work schedule experiments with unions other than the exclusive collective bargaining representative subsequent to August 30, 1979, breached its duty to bargain in good faith with AFGE National and thereby violated section 7116(a)(1) and (5) of the Statute.
Respondent was aware that AFGE National was interested in bargaining on work schedule experiments as early as March 1979, when AFGE National expressed a desire to bargain on the subject at a National Consultation meeting. Such interest was reaffirmed in September 1979 during Respondent's meeting with the General Committee; again by correspondence by AFGE National Council officer Harris on October 25, 1979, and the National Union itself on October 30, 1979; and during the meeting between spokesperson Johnson and Respondent on December 6, 1979. Although Respondent may have had some confusion as with whom it should deal specifically as representative of AFGE National, there could be no doubt that AFGE National wished to negotiate on the subject and any legitimate doubt as to the proper spokesperson for AFGE should have been erased by the AFGE National wished to negotiate on the subject and any legitimate doubt as to the proper spokesperson for AFGE should have been erased by the AFGE letter of October 30, 1979 when Nussbaum was named contact person, and the meeting of December 6, 1979 when Johnson's status as representative was confirmed. However, faced with repeated and clear demands to negotiate by representatives whose authority was clearly conveyed, Respondent in its December 20, 1979 letter informed AFGE that it would bargain with "local representatives" as to Service Centers designated for experimentation and conduct "appropriate discussion" if authority was received from HEW for experimenting in offices in the Atlanta Region. Indeed, Respondent ignored the continuing demands of AFGE National representatives and persisted in negotiating and executing [ v11 p409 ] agreements for work schedule experiments with Local Unions. 27 Accordingly, I conclude in these circumstances, that by its failure and refusal to bargain with AFGE as expressed in its December 20, 1979 letter, and its failure to bargain thereafter, Respondent further violated section 7116(a)(1) and (5) of the Statute.
Turning now to the terminations of the work schedule experiments in August 1981, Respondent signed the Settlement Agreement on August 28, 1980 thereby agreeing to settle the unfair labor practice alleged in Case No. 3-CA-831 and bargain with the Union on the decisions, impact and implementation of flexitime and compressed workweek experiments. The Union subsequently demanded to bargain on the subject on October 8 and December 4, 1980, and February 2, 1981, with no response from SSA. A fourth demand of March 23, 1981 was followed by a meeting between the parties on April 9, 1981. Apparently little, if anything, of substance was discussed at this meeting concerning work schedule experiments except there was some indication that existing experiments were not working out and the issue was "on the table" nationally. Parisi was to "get back" to Johnson but failed to do so and, on May 11, 1981, the Union again requested immediate negotiations. SSA again failed to respond to this request and on July 6, 1981 the Union filed the unfair labor practice charge in Case No. 3-CA-2680. One week later, on July 13, Respondent wrote to AFGE and informed the Union of its intention to terminate all work schedule experiments on August 15 and it was awaiting the Union's proposals for impact bargaining, even though, as I conclude herein, Respondent was obligated to bargain with the Union on the decision to terminate the experiments as well as the impact of such decision. On July 22 Johnson sought specific information on the experiments and asked to be contacted to arrange a date for negotiations. Johnson received no reply to that request to negotiate. Rather, Respondent sent another letter to AFGE on July 29, indicated that work schedule experimentation was still being evaluated and mentioned that the matter of additional experimentation was included in National negotiations. On August 11 Johnson challenged Respondent's attempting to merge mid-term negotiations on work schedule experiments with National negotiations. At no time prior to August 15, the date Respondent indicated terminations began to take effect, did Respondent indicate a specific date when it would meet to discuss the matter of terminations with the Union.
Although the termination was to occur on August 15, only approximately one month from the date of the notice, 28 it took Respondent until [ v11 p410 ] August 26 to mail the requested information to the Union, 11 days after the announced date at which time some, but not all, terminations had already occurred.
Work schedule experiments, albeit improperly implemented nevertheless became a condition of employment concerning Respondent's obligations within the meaning of the Statute. However, the termination dates on the "agreements" for work schedule experiments were not, as Respondent contends, "fixed conditions of employment." Rather, since the "agreements" were entered into illegally, the experiments continued to exist only as de facto conditions of employment but not by virtue of the "agreements" which were nullities as to any binding effect on AFGE. Therefore, Respondent was required to provide the Union with adequate and timely notice of the terminations, which, in the circumstances herein, I find and conclude it failed to do.
Accordingly, I conclude, in the circumstances herein, that Respondent's proceeding with terminations of work schedule experiments on or before August 15, 1981 demonstrated a blatant disregard of its obligations to negotiate with the Union and constituted a failure and refusal to bargain in violation of section 7116(a)(1) and (5) of the Statute. 29
I further concluded that Respondent's conduct after signing the Settlement Agreement in Case No. 3-CA-831 in August 1980 demonstrated a failure to comply with the terms of the Settlement Agreement and displayed a continuing disposition to avoid its bargaining obligations relative to negotiating on work schedule experiments. In signing the Settlement Agreement Respondent committed itself to bargain with AFGE on matters such as the decision and impact regarding work schedule experiments. Indeed, the Statute and the Work Schedule Act require no less. However, three demands to bargain between October 8, 1980 and February 2, 1981 produced no response from Respondent, conduct hardly epitomizing a desire by Respondent to fulfill its bargaining obligations and remedy unfair labor practice conduct which began in December 1979. Nor did Respondent's conduct from the April 9, 1981 meeting to August 15, 1981 evidence a good faith attempt to fulfill its bargaining obligations under the Settlement Agreement, the Statute, on the Work Schedule Act. Rather, Respondent failed to "get back" to AFGE after the April 9 meeting and failed to respond to AFGE's May 11 request to bargain.
Accordingly, in view of the foregoing circumstances, including Respondent's conduct regarding termination of the experiments, supra, I conclude Respondent failed to abide by the terms of the Settlement [ v11 p411 ] Agreement in Case No. 3-CA-831 and the Regional Director's withdrawal of his approval was proper.
I reject Respondent's contention that since AFGE had a proposal in National negotiations dealing with work schedule experiments, those negotiations merged with the superceded mid-term negotiations on the subject. Respondent consciously permitted AFGE to pursue mid-term negotiations on the matter as evidenced in part by the terms of the Settlement Agreement. Although the Settlement Agreement was signed by Respondent in August 1980 and the Union submitted its demand to bargain and proposals in October 1980, and repeatedly pursued its attempt to have Respondent negotiate thereafter, it was not until April 9, 1981 that SSA even suggested to AFGE that it considered National negotiations might supplant mid-term negotiations on the matter. Further, while proposals concerning work schedules were submitted in National negotiations, the record reveals the proposals by both parties essentially provided merely that upon request of the Union the parties would enter into negotiations on the procedures for implementing flexitime and/or compressed work schedules. The record discloses no discussion between the parties on this subject. The National negotiation proposals do not address Respondent remedying its prior conduct in improperly implementing work schedule experiments nor the termination of any such experiment but appear to be concerned only with the future use of flexitime and compressed work schedules. Moreover, AFGE gave no indication by word, act, or inference that it was content to waive continuation of mid-term negotiation on work schedules and have the matter resolved in the National negotiation forum or permit Respondent to unilaterally decide at which negotiations matters dealing with the terms of work schedule experiments, already in existence through the illegal conduct of Respondent, would be resolved. Rather, it appears that raising the National negotiation argument was merely a belated attempt by Respondent to confuse and confound the situation so that Respondent could unilaterally decide the selection and the timetable for the termination of work schedule experiments and avoid bargaining on matters concerning its improper implementation of experiments.
In addition I find and conclude that the impasse as to "ground rules" having arisen after the commission of the unfair labor practice conduct as found herein did not serve to vitiate that unfair labor practice conduct. Thus, Respondent's failure to bargain with AFGE in December 1979, bargaining with Local Unions and implementation of work schedule experiments in January 1980 and thereafter, and termination of the experiments in the circumstances described herein, all occurred prior to the "ground rules" disputes. Therefore, I conclude the "ground rules" dispute has no bearing on the existence of the unfair labor practices found herein and the obligation of Respondent to remedy such conduct.
Accordingly, in view of the entire foregoing and having concluded that Respondent has violated section 7116(a)(1) and (5) of the Statute, I recommend the Authority issue the following: [ v11 p412 ]
ORDER
Pursuant to section 2423.20 of the Federal Labor Relations Authority's regulations and section 7118 of the Statute, it is hereby ordered that the Social Security Administration shall:
1. Cease and desist from:
(a) Failing or refusing to negotiate in good faith with the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, with regard to the decision, impact and implementation, and termination of flexible or compressed work schedules to the extent consonant with law and regulations.
(b) Implementing or terminating flexible or compressed work schedules without first negotiating in good faith, to the extent consonant with law and regulations, with the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative.
(c) 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 effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:
(a) Upon request of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, negotiate in good faith, to the extent consonant with law and regulations, concerning the decision, impact and implementation, and termination of flexible or compressed work schedules or any other term or condition of employment.
(b) Upon request of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, terminate any or all work schedule experiments implemented after August 30, 1979 without having been negotiated with the American Federation of Government Employees, AFL - CIO. [ v11 p413 ]
(c) Upon request of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, reinstitute, to the extent consonant with law and regulations, any or all work schedule experiments terminated after August 30, 1979 without such termination having been negotiated with the American Federation of Government Employees, AFL - CIO.
(d) Post at all of its facilities where employees represented by the American Federation of Government Employees, AFL - CIO, the employees' exclusive representative, are located, 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 Commissioner, Social Security Administration, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. The Commissioner shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material.
(e) Pursuant to Section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director of Region 3, Federal Labor Relations Authority, 1111 18th Street, NW., Suite 700, Washington, D.C. 20036, in writing within 30 days from the date of the Order as to what steps have been taken to comply herewith.
SALVATORE J. ARRIGO
Administrative Law judge
Dated: May 12, 1982
Washington, D.C.
[ v11 p414 ]
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 fail or refuse to negotiate in good faith with the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, with regard to the decision, impact and implementation, and termination of flexible or compressed work schedules to the extent consonant with law and regulations.
WE WILL NOT implement or terminate flexible or compressed work schedules without negotiating in good faith, to the extent consonant with law and regulations, with the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative.
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 Federal Service Labor - Management Relations Statute.
WE WILL, upon request of the American Federation of Government Employees, AFL - CIO the employees' exclusive collective bargaining representative, negotiate in good faith, to the extent consonant with law and regulations, concerning the decision, impact and implementation, and termination of flexible or compressed work schedules or any other term or condition of employment.
WE WILL upon request of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, terminate any or all work schedule experiments implemented after August 30, 1979 without having been negotiated with the American Federation of Government Employees, AFL - CIO.
WE WILL upon request of the American Federation of Government Employees, AFL - CIO, the employees' exclusive collective bargaining representative, reinstitute, to the extent consonant with law and regulations, any or all [ v11 p415 ] work schedule experiments terminated after August 30, 1979 without such termination having been negotiated with the American Federation of Government Employees, AFL - CIO.
_________________________
(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, Region 3, 1111 18th Street, NW., Suite 700, Washington, D.C. 20036 and whose telephone number is (202) 653-8452. [ v11 p416 ]
FOOTNOTES
Footnote 1 See Department of Health and Human Services, Social Security Administration and Local 1346, American Federation of Government Employees, 6 FLRA No. 33 (1981) and Department of Health and Human Services, Social Security Administration, American Federation of Government Employees, AFL-CIO, 10 FLRA No. 20 (1982).
Footnote 2 Respondent filed a motion for additional time to file a brief and, the General Counsel having no objection, the motion was granted.
Footnote 3 In its brief Respondent moved to have a Complaint and Notice of Hearing in Case No. 3-CA-831, which issued on July 25, 1980, received in evidence. No objection has been interposed by Counsel for the General Counsel. Accordingly, the Complaint and Notice of Hearing in Case No. 3-CA-831, dated July 25, 1983 is hereby designated Respondent's Exhibit No. 27 and is received as part of the record.
Footnote 4 The period of experimentation due to terminate March 30, 1982 has been extended for approximately 120 days.
Footnote 5 Section 302(a) of the Work Schedule Act provides: "Employees within a unit with respect to which an organization of Government employees has been accorded exclusive recognition shall not be included within any experiment under ... this Act except to the extent expressly provided under a written agreement between the agency and such organization.
Footnote 6 See section 7113 of the Statute.
Footnote 7 The consolidation had been pending "for years".
Footnote 8 A list of designated spokespersons for the Union's various components was supplied Respondent in February 1980. However, Respondent was informed in December 1980 that John Harris was the designated spokesperson for Field Offices. Respondent also supplied to the Union a list of its counterpart representatives.
Footnote 9 The Department of Health, Education and Welfare (HEW) was subsequently renamed the Department of Health and Human Services (HHS).
Footnote 10 SSA's Field Office operations were within HEW Regions and personnel matters, including hours of work, were part of the delegated responsibilities of HEW Regional management.
Footnote 11 The most specific testimony dealing with the date of this authorization was given by Wilson Schuerholz, a Labor Relations Specialist for Respondent. He testified that the authorization occurred in early 1980. Respondent's brief (page 4) acknowledges the date of such authorization to be "early January 1980". Since Respondent is the repository of such information and the record contains no credible evidence inconsistent therewith, I find HEW's authorization was given to SSA in early January 1980.
Footnote 12 One of which was amended January 25, 1980 and one in May 1980.
Footnote 13 One of which was amended November 6, 1979.
Footnote 14 Most of these agreements were executed between January 21 and 25, 1980.
Footnote 15 The filed date is the date the Regional Office of the Authority docketed the charge, but the charge itself was dated January 17, 1980.
Footnote 16 The unfair labor practiced charge was amended in May 1980 to include an allegation of unilateral implementation of work schedule experiments.
Footnote 17 At the hearing counsel for Respondent asked Johnson, "In fact, wasn't this the Union's way of placing this issue on the National table?" Johnson responded in the affirmative. However, I do not construe this colloquy sufficient to establish that by submitting the above proposal, the Union intended to waive or in fact waived its rights to negotiate on those work schedule experiments which Respondent had already implemented without negotiating with the AFGE National Union, or affect any remedy for unfair labor practice conduct which might have occurred with regard thereto.
Footnote 18 Negotiation meetings on the National agreement commenced in June 1980.
Footnote 19 One of subjects for bargaining was "ground rules for mid-term bargaining." Thus, during this period the practices clearly envisioned embarking on overall negotiations for a National agreement and separate "mid-term bargaining" to resolve specific matters outside National negotiations.
Footnote 20 Sometime in March the Union "received word" from some unexplained source that SSA intended to terminate some work schedule experiments.
Footnote 21 Although negotiations for a National agreement were taking place during this period, the April 9 meeting was not a National negotiation session.
Footnote 22 An attachment to Respondent's Exhibit No. 14 reveals that on July 7, 1981 management at Lakeland, Florida District Office and representatives of the Local Union executed an agreement calling for, inter alia, the suspension of its compressed work schedule effective August 8, 1981 and an agreement to renegotiate the matter if authority permits.
Footnote 23 This narrative is a composite of the credited testimony of Parisi and Johnson.
Footnote 24 Parisi's letter dated August 27, 1981 (General Counsel's Exhibit No. 19) shows a receipt date stamp of August 27, 1981 by AFGE Local 1336, which Local is situated in Kansas City, Missouri where Johnson is also located. See 6 A/SLMR 118 and 6 A/SLMR 29 (Suppl.).
Footnote 25 On September 15, 1981 the Regional Director withdrew his approval of the Settlement Agreement in Case No. 3-CA-831.
Footnote 26 The facts of the case were submitted to the Authority by stipulation on June 25, 1980 under the provisions of section 2429.1(a) of the Authority's Rules and Regulations.
Footnote 27 I note that although on December 6 and 20 Respondent informed AFGE it could not negotiate experiments in the Atlanta Region without HEW approval, five such agreements had been executed with Local Unions prior to December 1979.
Footnote 28 Actually numerous "agreements" reveal an August 1 termination date.
Footnote 29 The record does not disclose if any terminations occurred after August 15, 1981.