[ v16 p434 ]
16:0434(68)CA
The decision of the Authority follows:
16 FLRA No. 68
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
1923, AFL-CIO
Charging Party
Case Nos. 3-CA-2563
3-CA-20023
3-CA-20024
3-CA-20179
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. Exceptions to the Judge's Decision were
filed by the Respondent.
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 recommended order to the extent
consistent herewith.
The Respondent and the Charging Party are parties to a collective
bargaining agreement which includes a provision for processing backpay
grievances. That provision requires that either party will meet with
the other upon request at step 3 of the grievance procedure. Upon such
a request by the Charging Party, the Respondent failed to so meet during
consideration of the backpay grievance of employee Lancione, thus
leading to the complaint in Case No. 3-CA-20024. The Judge found that
the Respondent's failure to meet violated section 7116(a)(1) and (5) of
the Statute, /1/ because "Respondent's action resulted in a clear and
patent breach of the terms of the negotiated agreement." He further
found that Respondent's "patent breach" constituted a "unilateral change
in the agreement in derogation of the bargaining obligation . . . " and,
therefore, a violation of section 7116(a)(1) and (5). The Authority
disagrees. The record reveals that the Respondent cooperated fully at
steps one and two of Lancione's backpay grievance and that it attempted
to rectify its failure to meet at step 3. It is also noted that, when
the Charging Party thereafter requested arbitration, the Respondent
acceded to that request. Thus, the Authority concludes that the single
instance of the Respondent's failure to honor a request for a third step
meeting, in the circumstances of this case, did not constitute a
rejection of the collective bargaining agreement in violation of section
7116(a)(1) and (5) of the Statute. /2/ Accordingly, the complaint in
Case No. 3-CA-20024 shall be dismissed.
In Case Nos. 3-CA-2563, 3-CA-20179 and 3-CA-20023, the Judge found
that the Respondent violated section 7116(a)(1) and (5) of the Statute
by delivering grievance decisions and responses directly to employee
grievants and thus bypassing their exclusive representative, the
Charging Party. The Judge also found that such conduct constituted an
independent violation of section 7116(a)(1) in that it interfered with
the right of employees to designate and rely upon the Union to present
and process their grievances through the grievance process. The
Authority adopts these findings and conclusions. The Authority also
agrees with the conclusion of the Judge in Case No. 3-CA-20023 that the
Respondent did not patently breach its collective bargaining agreement
with the Charging Party in that case by issuing a second step 1 response
to the grievance of employee Johnson. In so concluding, the Authority
notes that the Respondent cooperated with the contractual grievance
machinery, and, upon request, acceded to arbitrate Johnson's grievance,
and that, therefore, Respondent's conduct did not constitute a rejection
of the collective bargaining agreement. /3/
Order
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Respondent, Social Security
Administration, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain in good faith with the American
Federation of Government Employees, Local 1923, AFL-CIO, the exclusive
bargaining representative, by bypassing designated Union representatives
of employees and furnishing or delivering grievance decisions or other
responses only to the employee grievants.
(b) Interfering with, restraining, or coercing its employees in the
exercise of rights assured by the Federal Service Labor-Management
Relations Statute by furnishing or delivering decisions or other
responses to grievances directly to employees while failing to furnish
same to American Federation of Government Employees, Local 1923,
AFL-CIO, the designated representative of such employees.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Furnish or deliver all decisions or other responses to grievances
to designated Union representatives of employees at the same time as
they are furnished or delivered to employee grievants.
(b) Reproduce and distribute to all supervisory personnel the
attached Notice.
(c) Post at its Baltimore, Maryland facilities 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 sixty (60) consecutive days thereafter in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that said 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, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 3-CA-20024 be
dismissed in its entirety, and that the allegations of the complaint in
Case No. 3-CA-20023 pertaining to "patent breaches" of the negotiated
agreement be, and they hereby are, dismissed.
Issued, Washington, D.C., November 14, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, 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 interfere with, restrain, or coerce our employees in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute by furnishing or delivering decisions or other
responses to grievances directly to employees while failing to furnish
or deliver same to American Federation of Government Employees, Local
1923, AFL-CIO, the designated representative of such employees.
WE WILL NOT fail and refuse to bargain in good faith with the
American Federation of Government Employees, Local 1923, AFL-CIO, the
exclusive bargaining representative, by bypassing designated Union
representatives of employees and furnishing or delivering grievance
decisions or other responses only to the employee grievants.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish or deliver all decisions or other responses to
grievances to the American Federation of Government Employees, Local
1923, AFL-CIO, the designated representative at the same time they are
furnished or delivered to employee grievants.
WE WILL distribute copies of this Notice to all supervisory
personnel.
(Agency or Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 50 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, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, NW, Suite 700, Washington, D.C. 20036 and whose
telephone number is: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Charging Party
Case Nos. 3-CA-2563
3-CA-20023
3-CA-20024
3-CA-20179
John J. Barrett, Esquire
For the Respondent
Gordon E. Christensen, Esquire
For the Charging Party
Peter A. Sutton, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns a consolidated unfair labor practice complaint
issued by the Regional Director, Region Three, Federal Labor Relations
Authority, Washington, D.C. against the Social Security Administration
(Respondent). The complaint alleged, in substance, that Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
by bypassing the Union on three occasions when it delivered first step
grievance responses directly to unit employees and by patently breaching
the collective bargaining agreement by refusing to meet with the Union,
upon request, and by the conduct of a step two official in issuing a
second first step response to a grievance. Respondent's answer admits
jurisdiction, but denies any violation of the Statute.
A hearing was held in this matter in Baltimore, Maryland. The
Respondent, Charging Party, and the General Counsel, FLRA were
represented by counsel and afforded full opportunity to be heard, adduce
relevant evidence, examine and cross-examine witness, and file
post-hearing briefs. Based on the entire record herein, /4/ including
my observation of the witnesses and their demeanor, the exhibits,
stipulation, other relevant evidence adduced at the hearing, and the
briefs, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
General
The American Federation of Government Employees, Local 1923, AFL-CIO
(Charging Party or Union), is the certified exclusive representative of
an appropriate unit of Respondent's headquarters employees including the
grievants identified herein. Since September 15, 1977, and at all times
thereafter, there has been a collective bargaining agreement in effect
between the Union and Respondent (Jt. Exh. 1). The parties' negotiated
agreement includes a procedure for the adjustment of grievances in
Article 22 (Jt. Exh. 2).
Article 22, Section A provides, in part, that grievances and
complaints "should be settled in an orderly, prompt, and equitable
manner" and that "(e)very effort will be made . . . to settle grievances
at the first level of supervision." Section C provides that a grievance
must be initiated by employee(s) covered by the agreement and/or their
Union representative, and that grievances "will be processed in
accordance with the steps provided for in Section E." The Section also
provides that should "the Administration fail to process the grievance
in the stated time period, the action will automatically be referred to
the next step of this procedure with this fact noted." With respect to
other than backpay grievances, Section E provides for a three-step
procedure. At each step, the supervisor or designated official will
meet with the employee upon request. The agreement provides for a
decision within a designated period at each step. No specific provision
is made for delivery of decisions at the first two steps; /5/ however,
at Step 3, it is provided that, "a summary report of the Step 3 review
shall be prepared by the Administration if the grievance is modified or
denied. Two copies of the report shall be given to the Union as soon as
reasonably possible after the date on which the decision was made."
The backpay grievance procedure, set out in Article 22, Section H,
consists of a three-step process. The process begins at Step 1 when the
employee submits the grievance to his or her immediate supervisor. The
immediate supervisor forwards the grievance, together with any facts in
his possession, /6/ to Step 2, the bureau/office management (Jt. Exh. 2,
p. 135; Tr. 78, 115-116). At Step 2, the bureau/office management
forwards a written summary of the factual information to the Director,
Office of Human Resources, for decision. The agreement provides that at
Step 3, "Either party or his/her representative will meet with the other
upon request to discuss the grievance." The Director, Office of Human
Resources, is required to render a written administrative determination
on the employee's backpay claim within 20 days of the appeal (Jt. Exh.
2, p. 135; Tr. 70). Section I provides for arbitration of an
unacceptable administrative determination. Section J provides that,
"collateral issues involved with backpay grievances which likewise may
be the subject of a grievance will be simultaneously and collectively
processed" (Jt. Exh. 2, p. 136).
Settlement
In late 1980-early 1981, the Union filed several unfair labor
practice charges regarding Respondent's handling of unit employee
grievances filed under the negotiated agreement (Tr. 128-129). These
charges were subsequently withdrawn by the Union in consideration of
Respondent's agreement to prepare and distribute a two-page memorandum
from Respondent's Director, Office of Human Resources, to all
headquarters managers and supervisors explaining Respondent's duties
regarding unit employee grievances. The memorandum contained a specific
section concerning Respondent contacts with unit employees on grievance
responses. This section provided, in pertinent part, that:
All contacts, as well as the delivery of decisions at various
Steps in the disposition process, should be made with the
designated Union representative. The need for a designated
official to meet directly with a grievant would likely occur only
under the rarest of circumstances . . . .
Respondent distributed this memorandum to all of its managers and
supervisors in April 1981 (Tr. 130; Resp. Exh. 7).
Case 3-CA-2563 (Regarding the Goodman Grievance)
Thomas H. Goodman has been an employee of Respondent for
approximately 15 years and presently works as a computer systems
analyst. In August 1980, Goodman began experiencing problems with
tobacco smoke at his work site. Goodman was unable to resolve the smoke
problem on his own, and, in April 1981, he sought the help of Union
steward G. Neel Purvis. Purvis agreed to serve as Goodman's Union
representative concerning the matter. Accordingly, Purvis drafted a
Step 1 grievance for Goodman and scheduled a meeting with Goodman's
branch chief, James H. Ryland, to discuss the grievance (Tr. 20-22).
On April 20, 1981, Goodman and Union steward Purvis met with Ryland
in Ryland's office. Purvis gave Ryland a copy of the grievance,
discussed the matter, and explained that, as he was Goodman's
representative, Ryland should respond directly to Purvis (Tr. 21-23,
32-33).
Thereafter, on or about April 27, 1981, Ryland approached Goodman,
dropped the grievance response on his desk, stating, "Here, it is," and
walked out. No discussion occurred (Tr. 23-24; GC Exh. 2). Goodman,
subsequently delivered the response to his Union representative, Purvis
(Tr. 24, 33), Ryland did not provide Purvis, the designated
representative, with the Step 1 answer, or ever advise him of its
existence (Tr. 34).
Union representative Purvis, upon receipt of the response from
Goodman, acknowledged receipt and elected to proceed to the next step of
the grievance procedure (GC Exh. 2). Shortly thereafter, Purvis met
with the second-step grievance official, division director Michael
McCoy, to discuss the grievance (Tr. 37). The grievance was referred to
arbitration by the Union on July 8, 1981. On January 22, 1982
Arbitrator Berkely sustained Mr. Goodman's grievance (Tr. 8).
Case 3-CA-20179 (Regarding the Furman Grievance)
In November 1981 unit employee Pat Furman sought the assistance of
Union steward Martha Service in regard to work problems Furman was
having with her immediate supervisor, Marilyn Swartz. Steward Service
held a meeting with Swartz' supervisor, Joyce Causey, a second-line
supervisor and second-step grievance official, to discuss the matter.
Sometime after the meeting, Service prepared, and Furman signed, a
grievance, which was placed on the desk of her immediate supervisor,
Swartz. The grievance indicated that Furman was represented by the
Union and that Martha Service was the employee's Union representative
(Jt. Exh. 9; Tr. 102-104, 108).
Thereafter, Swartz prepared a Step 1 decision, dated November 30,
1981, and delivered it directly to the grievant Furman. The grievant
subsequently delivered it to stewart Service at the Union office (Tr.
104, 111, 113; GC Exh. 9). Service then telephoned Swartz and asked
her why she had given the decision directly to Furman instead of to
Service, the designated representative. Swartz became very irritated
and told Service, among other things, that she had no intention of
giving her a copy of the decision. True to her word, Swartz never
supplied Service with a copy of the Step 1 decision (Tr. 105-106).
Union representative Service subsequently held a second-step
grievance meeting with Joyce Causey, the second-step official, at which
the grievance was resolved to the satisfaction of the grievant (Tr. 8,
110). Shortly thereafter, Ms. Furman left the employment of the
Respondent (Tr. 106).
Case 3-CA-20023 (Regarding the Johnson Grievance)
Alan D. Johnson is employed as a GS-4 control clerk on Respondent's
medical consultant staff. In September 1980, Johnson was detailed for
about ten months to Respondent's visual graphics services section.
While working at visual graphics, Johnson was supervised by James
Sizemore (Tr. 39).
In February 1981, Johnson applied for a GS-5/7 visual information
specialist opening in visual graphics. He was advised by Sizemore and
Walt Carr, visual graphics section chief, in April 1981 that he had been
selected for the vacancy. However, Carr and Sizemore later informed
Johnson that the opening had been canceled due to personnel ceiling
limitations. Consequently, in about July 1981, Johnson returned to
Respondent's medical consultant staff (Tr. 39-40).
In August 1981, Johnson met with Union executive secretary Elaine
Minnick to discuss the cancellation of the GS-5/7 opening. After
investigating the matter, Minnick agreed to file a backpay grievance for
Johnson and act as his Union representative. Thereafter, on August 10,
1981, Minnick drafted a backpay grievance, which was signed by Johnson,
and she hand-delivered it to Evelyn Echols, Johnson's immediate
supervisor on the medical consultant staff. The grievance noted that
Johnson was represented by the Union and that Minnick was Johnson's
Union representative (Tr. 40-41, 63-64; Jt. Exh. 8).
Sometime after August 10, the Johnson grievance was routed from Ms.
Echols to Mr. Charles Brown of the division of labor relations and then
to the visual graphics section. The grievance was given to Mr. Sizemore
by his section chief, Walter Carr. Attached to it was a blank backpay
grievance disposition form and a transmittal note from Mr. Brown of
labor relations which directed that the form be filled out by the
first-line supervisor and forwarded up through the chain of command.
Mr. Sizemore completed the fact statement required by Article 22,
Section H, Step 1 and forwarded the completed form, with all carbon
copies intact, to the branch office. The report was favorable to Mr.
Johnson's claims, in at least some respects. Mr. Sizemore made and kept
a photocopy of his fact statement (Tr. 115-117; Jt. Exh. 5; GC Exh.
3).
One day after work, apparently sometime between September 3 and
October 6, 1981, Mr. Johnson visited Mr. Carr and Mr. Sizemore in visual
graphics. Johnson mentioned his grievance. Mr. Sizemore did not
discuss the substance of Mr. Johnson's grievance, but remarked that he
had been asked to respond to it and gave Johnson a copy of his factual
report (Tr. 41, 46-47, 117). Sizemore did not provide the Union, or
Johnson's Union representative, with a copy (Tr. 66).
After Sizemore issued his Step 1 factual report, Respondent's Step 2
official in the grievance, Acting Director of Office of Material
Resources Marilyn O'Connell, issued a factual report on September 24,
1981. O'Connell's report appeared on a separate disposition of
grievance form under the "First Step Disposition-- First-line
supervisor" heading. /7/ O'Connell's summary of facts was unfavorable
to Johnson's claim /8/ (GC Exh. 3 & 4; Tr. 50, 94, 97). O'Connell's
negative factual report was delivered to Chief Union Steward Thomas Shaw
on September 30, 1981. /9/ Shaw forwarded O'Connell's report to
Johnson's Union representative Minnick (Tr. 55, 64, 94, 96).
Shortly after receiving O'Connell's Step 1 factual report, Minnick
was contacted by Johnson, who asked about the status of his grievance.
Minnick advised Johnson of O'Connell's negative Step 1 findings
whereupon Johnson expressed surprise and informed Minnick that Sizemore
had given him a favorable Step 1 report. Minnick, not having been
previously notified of the Sizemore Step 1 report, asked Johnson for a
copy (Tr. 65-66). Subsequently, the grievant provided Minnick with a
copy of Sizemore's Step 1 findings.
On October 6, 1981 the Union invoked arbitration on Johnson's backpay
grievance. The Union stated, in part, as follows,
In conformance with Article 24, Section A, we are requesting
arbitration in the grievance of Alan D. Johnson.
In accordance with Section B, we expect to meet with you within
five (5) working days of the date of this letter to jointly
request the FMCS to provide a list of five (5) impartial persons
to act as arbitrators.
Because of the Agency's non-compliance with the provisions of
Article 22, Section H, failure to act on this request will result
in the appropriate charges (GC Exh. 5).
The parties have selected an arbitrator to hear the matter (Tr. 8).
The Union's unfair labor practice charge was dated October 7, 1981 and
filed October 8, 1981. The charge alleged, in substance, a patent
breach of Article 22, Section H of the negotiated agreement by the
action of Marilyn O'Connell (GC Exh. 1(c)). On February 4, 1982, the
Union filed an amended charge adding the alleged bypass of the Union
representative by supervisor Sizemore (GC Exh. 1(e)).
Case 3-CA-20024 (Regarding the Lancione Grievance
On July 24, 1981, Union representative Elaine Minnick filed a backpay
grievance on behalf of employee Robert Lancione (Jt. Exh. 7, Tr. 67).
On August 4, 1981, the grievance was assigned to Larry Valentine,
Division of Personnel Operations, Recruitment and Placement Branch, for
preparation of factual statements; a due date of August 27, 1981 was
established (Tr. 118-122; Respondent's Exh. 5).
Since grievant Lancione had expressed an interest in meeting with
management so that all the facts could be brought out in relation to his
grievance, Union representative Minnick, on August 10, 1981, addressed a
letter to Larry Massanari, Acting Director, Office of Human Resources,
the Step 3 official responsible for making the written administrative
determination on backpay grievances (Tr. 68-71; GC Exh. 6). The letter
stated, in part, as follows:
If you have not already received a backpay grievance for Mr.
Robert M. Lancione the Office Director should be forwarding it to
you by close of business August 19, 1981.
Since we have no indication of what position the Step #1 or #2
officials have in this matter, we would like to meet with you or
your representative prior to your rendering your decision. We
believe, in the best interests of the grievant, we should know
what information was forwarded so that all of the facts are
adequately addressed.
Please contact me on 4-7229 or 4-7238 to arrange a mutually
agreeable time. I advise you, in advance, that I will not be on
duty the week of August 24-28, 1981.
Minnick delivered the letter to Massanari's office where it was logged
in as being received on August 10, 1981 (Tr. 69, 87, Resp. Exh. 4). In
the normal course of business, Union requests to meet are sent to the
Division of Labor Relations and a copy is sent to Mr. Massanari. He
normally marks the copy to request that his secretary follow-up to make
sure the requested meetings are timely scheduled (Tr. 80-81; Resp. Exh.
1, 2, 3). However, in this instance, the letter was routed directly to
the Division of Personnel Operations with a copy to the Division of
Labor Relations, and no copy was sent to Massanari (Tr. 87; Resp. Exh.
4).
Upon receipt of Ms. Minnick's letter by Mr. Valentine of the Division
of Personnel Operations, Valentine contacted the Division of Labor
Relations concerning what he should do about releasing a written
determination on the grievance by the due date which he had been given
of August 27 in view of the letter. Valentine was advised not to issue
the decision, since the Division of Labor Relations would have to act on
the Union's request (Tr. 124). The record does not reflect any effort
by the Division of Labor Relations to contact the Union concerning the
request between August 10, 1981 and September 17, 1981.
By letter dated September 17, 1981 Ms. Minnick notified Mr. Massanari
that the Union was proceeding to arbitration of Lancione's grievance
since a decision had not been issued by September 16, 1981 and the
Union's request to meet had not been honored. The request for
arbitration letter itself was substantially the same as the Johnson
request noted above (GC Exh. 7, Tr. 71).
Shortly after Minnick's September 17,.1981 arbitration request,
Minnick met with personnel staffing specialist Larry Valentine and labor
relations specialist Delores Walke over a matter unrelated to the
Lancione grievance. After the meeting was over, Valentine informed
Minnick that he had a decision on the Lancione grievance. Minnick
responded that the Union had already invoked arbitration on the
grievance. However, Minnick further advised Valentine that she had an
upcoming meeting with Massanari on another grievance, and that the Union
would withdraw its Lancione arbitration request provided the Union was
furnished the first and second step information and had the opportunity
to make an oral presentation prior to the issuance of a decision (Tr.
72-73). Walke said it was unusual to furnish the Union with copies of
the first and second step responses on backpay grievances, but she would
check with the branch chief and then let Mr. Valentine know so he could
get back in touch with Minnick concerning release of the information
(Tr. 76-77, 101, 125).
Ms. Walke checked with her supervisor and subsequently advised Mr.
Valentine that, in view of the specific request, the two fact statements
could be released to Ms. Minnick (Tr. 77). Mr. Valentine attempted to
reach Ms. Minnick by telephone on at least three occasions in order to
arrange for her to receive the Step 1 and Step 2 fact statements. He
telephoned and left a message with the Union office (Tr. 125-127). His
efforts to reach Ms. Minnick were unsuccessful. In addition to being on
leave for one week in late August (GC Exh. 6), Ms. Minnick was out of
town off and on as she was involved in national negotiations and, in
September, went to Blacksburg, Virginia to receive labor relations
training (Tr. 93-94).
Subsequently, Minnick held a Step 3 meeting in September 1981 with
Sarah Hammer, Massanari's special assistance, regarding another
grievance. At the end of the meeting, Minnick asked Hammer if she was
familiar with the Union's request for a meeting and for the Step 1 and 2
information on the Lancione grievance. Hammer replied she was aware of
the matter as she had talked to Larry Valentine about it. Ms. Minnick
stated she had not heard from Valentine and asked what was the agency's
position and whether they would be discussing it. Hammer replied that
the agency's position was the same (Tr. 73, 100-101).
On October 8, 1981 the Union filed an unfair labor practice charge
(GC Exh. 1(g)). As of April 6, 1982, arbitrator Benjamin Sipton had
been selected by the parties to conduct the arbitration of the Lancione
grievance (Tr. 8).
Discussion, Conclusions, and Recommendation
The General Counsel and the Charging Party contend that Respondent
violated section 7116(a)(1) and (5) of the Statute by bypassing the
designated Union representative and delivering first step grievance
responses directly to unit employees Goodman, Johnson, and Furman. They
also contend that Respondent unilaterally altered and patently breached
the negotiated backpay grievance procedures in violation of section
7116(a)(1) and (5) by refusing to meet with the Union, upon request, to
discuss employee Lancione's grievance at Step 3 and by issuing a second
step one factual report regarding employee Johnson's grievance.
Respondent defends on the basis that all aspects of the Johnson and
Lancione cases have been referred to arbitration; therefore, the
complaint in this regard is barred by section 7116(d) of the Statute;
that mere delivery of a grievance decision by a supervisor to an
employee does not constitute direct dealing or an unfair labor practice;
that Massanari did not knowingly and patently refuse to meet at Step 3
on the Lancione grievance; and that, since grievance responses are not
issued by Step 1 or Step 2 officials, in backpay grievances, the
allegations that Sizemore delivered a first-step response to Johnson and
that O'Connell issued a second Step 1 response to Johnson are legally
impossible and the complaint in this respect is legally insufficient.
Section 7116(d)
Respondent has failed to support its affirmative defense that section
7116(d) applies herein to bar those aspects of the complaint dealing
with the Johnson and Lancione grievances. As noted, the pertinent
issues in the complaint in this regard concern Respondent's alleged
failure to bargain in good faith with the Union by dealing directly with
unit employee Johnson, concerning the first-step response to his
grievance, and by patently breaching the collective bargaining agreement
in regard to the procedural handling of the Johnson and Lancione
grievances (GC Exh. 1(m), par. 8(b), 9(a) and (b)). Thus, the issues in
the complaint are based on alleged violations of the Union's rights
under the Statute. The grievances, on the other hand, were not filed by
the Union in its institutional capacity, but by individual employees
seeking to obtain backpay. Although the Union has invoked arbitration
on the grievances filed by the individual employees, there has been no
showing that the same issues raised in the complaint have been raised in
the grievances or in the arbitration proceedings arising out of these
grievances. Department of Health and Human Services, 5 FLRA No. 63
(1981); Norfolk Naval Shipyard, Portsmouth, Virginia, 2 FLRA No. 104
(1980); Bureau of Alcohol, Tobacco and Firearms, National Office and
Central Region, 2 FLRA No. 67 (1980). Therefore, it is concluded that
the issues being raised in the separate forums by the aggrieved parties
are different and that further processing of the instant complaint in
this respect is not barred by section 7116(d) of the Statute.
Delivery of Decisions and Other Responses Directly to Grievants
As stated in section 7114(a)(1) of the Statute, "A labor organization
which has been accorded exclusive recognition is the exclusive
representative of the employees in the unit it represents and is
entitled to act for, and negotiate collective bargaining agreements
covering, all employees in the unit." The right of the exclusive
representative to "act for" unit employees includes the right
encompassed by section 7121(b)(3) "on behalf of any employee in the unit
. . . to present and process grievances . . . ."
The exclusive representative simply cannot exercise its statutory
right to act on behalf of a unit employees to present and process
his/her grievance through the negotiated grievance procedure if it is
ignored by the agency and not furnished, at the same time as the
employee, with the written decision when rendered at each step of the
negotiated grievance procedure, or if the employee, and not the Union,
is voluntary furnished information bearing on the grievance. The
agency, by furnishing the employee, and not the specified Union
representative, with a copy of the written decision or information
bearing on the grievance, failed to accord appropriate recognition to
the exclusive representative as the employee's designated representative
during the grievance process and acted in derogation of its statutory
obligation to consult in good faith with a labor organization as
required by the Statute, in violation of section 7116(a)(5) of the
Statute. Such conduct constitutes an independent violation of section
7116(a)(1). It inherently interferes with the right of employees to
designate and rely upon the Union to present and process their
grievances through the grievance process, one of the basic benefits of
exclusive recognition.
Patent Breach
The collective bargaining agreement provides that at Step 3 of the
procedure for processing backpay grievances, "Either party or his/her
representative will meet with the other upon request to discuss the
grievance." The record reflects that the Union made such a request
concerning the Lancione grievance on August 10, 1981. The request was
received and understood by Respondent's Division of Labor Relations,
which normally acts on such requests. No action was taken to comply
with the request, although, over a month later, when the Union invoked
arbitration, there was some discussion about the release of factual
information and the possibility of a meeting, but neither materialized.
A preponderance of the evidence supports the conclusion that
Respondent's action resulted in a clear and patent breach of the terms
of the negotiated agreement. The agreement provides for a meeting upon
request at Step 3 to discuss the backpay grievance. The purpose of the
provision is to allow each party the opportunity to support, explain, or
clarify his position by an oral presentation so that full consideration
of the pertinent facts and argument may be given prior to decision, thus
possibly eliminating the need to request binding arbitration. There is
no dispute as to the interpretation of the agreement. Respondent's
defense that Mr. Massanari did not personally receive the request, that
management attempted unsuccessfully to contact Minnick concerning her
request for information after arbitration was invoked, and that there
were meetings conducted by the parties after arbitration was requested
at which the substance of the August 10 request was discussed are either
without merit, or considering the time sequence, do not constitute a
good faith effort to comply with the contractual provision. Respondent
received the initial request and took no action whatsoever to comply
with it at the appropriate time. Respondent's patent breach of the
agreement constitutes a unilateral change in the agreement in derogation
of the bargaining obligation and is, therefore, a violation of section
7116(a)(5) and (1), as alleged.
The allegation that Respondent also patently breached the collective
bargaining agreement by the conduct of Marilyn G. O'Connell, the
designated Step 2 official, in issuing a Step 1 response to the backpay
grievance of employee Johnson is not supported by a preponderance of the
evidence. The agreement provides for the immediate supervisor at Step 1
to forward the grievance, together with any facts in his possession, to
Step 2, the bureau or office level, where the bureau or office
management then forwards a written summary to Step 3, the Director of
the Office of Human Resources. The record reflects that supervisor
Sizemore prepared and forwarded a favorable Step 1 factual report, for
which he was reportedly reprimanded. Ms. O'Connell, the second step
official, then issued a factual report which was labeled as a first-step
disposition. There is no evidence that the Sizemore report was
destroyed, or replaced by the O'Connell report and that the Sizemore
report is no longer a part of the Johnson grievance file. The record
simply reflects that Sizemore forwarded his report through channels as
requested and that the O'Connell report then issued. No effort was made
to conceal the O'Connell report. It was voluntarily sent to the Union.
Since O'Connell is admittedly a Step 2 official, her report, labeled as
that of the first-line supervisor, would, in the face of supervisor
Sizemore's first-step report, quite logically be considered under the
agreement as the factual report of the second-step office head
regardless of how O'Connell's report is labeled. Without a showing that
the Sizemore report was removed, replaced, or never added to the
grievance file, the mere fact that O'Connell, the designated Step 2
official, issued a factual report labeled as a Step 1 disposition, and
that there now exist two factual reports labeled as "first-step"
reports, does not support a clear and patent breach of the agreement.
Accordingly, the evidence does not support a violation by Respondent of
section 7116(a)(1) and (5) of the Statute in this respect, as alleged.
Based upon the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
Order
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Respondent, Social Security Administration, shall:
1. Cease and desist from:
(a) Failing and refusing to consult in good faith with the
American Federation of Government Employees, Local 1923, AFL-CIO,
the exclusive bargaining representative, by bypassing designated
Union representatives of employees and furnishing or delivering
grievance decisions or other responses only to the employee
grievants.
(b) Interfering with, restraining, or coercing its employees in
the exercise of rights assured by the Federal Service
Labor-Management Relations Statute by furnishing or delivering
decisions or other responses to grievances directly to employees
while failing to furnish some to the designated American
Federation of Government Employees, Local 1923, AFL-CIO,
representatives of such employees.
(c) Patently breaching its collective bargaining agreement with
American Federation of Government Employees, Local 1923, AFL-CIO,
by refusing and failing to meet with the Union to discuss
individual backpay grievances at Step 3 as provided for in Article
22, Section H of the negotiated agreement.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Furnish or deliver all decisions or other responses to
grievances to designated Union representatives of employees at the
same time as they are furnished or delivered to employee
grievants.
(b) Upon request, the Director, Office of Human Resources or
his/her representative shall meet with the designated Union
representative and discuss Robert M. Lancione's backpay grievance
dated July 24, 1981.
(c) The Director, Office of Human Resources or his/her
representative shall otherwise comply with Article 22, Section H
of the collective bargaining agreement with American Federation of
Government Employees, Local 1923, AFL-CIO by meeting at Step 3,
upon request, to discuss backpay grievances.
(d) Reproduce and distribute to all supervisory personnel the
attached Notice marked "Appendix".
(e) Post at its Baltimore, Maryland facilities 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 for sixty (60)
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Pursuant to 5 C.F.R. 3423.30, notify the Regional Director
of Region III, 1111 18th Street, NW, Suite 700, Washington, D.C.
20036 in writing, within thirty (30) days from the date of this
order as to what steps have been taken to comply with the order.
IT IS FURTHER ORDERED that paragraph 9(b) of the Consolidated
Complaint be, and it hereby is, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: June 28, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO 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 interfere with, restrain, or coerce our employees in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute by furnishing or delivering decisions or other
responses to grievances directly to employees while failing to furnish
or deliver same to the designated American Federation of Government
Employees, Local 1923, AFL-CIO representatives of such employees.
WE WILL NOT fail and refuse to consult in good faith with the
American Federation of Government Employees, Local 1923, AFL-CIO, the
exclusive bargaining representative, by bypassing designated Union
representatives of employees and furnishing or delivering grievance
decisions or other responses only to the employee grievants.
WE WILL NOT fail and refuse to comply with the backpay grievance
procedures in Article 22, Section H of our collective bargaining
agreement with American Federation of Government Employees, Local 1923,
AFL-CIO by refusing to meet with the Union, upon request, at Step 3 to
discuss our employees' backpay grievances.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish or deliver all decisions or other responses to
grievances to designated American Federation of Government Employees,
Local 1923, AFL-CIO representatives at the same time they are furnished
or delivered to employee grievants.
WE WILL abide by the backpay grievance procedures in Article 22,
Section H of our collective bargaining agreement with American
Federation of Government Employees, Local 1923, 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 of the Federal Labor Relations Authority whose address is:
1111 18th Street, NW., Suite 700, Washington, D.C. 20036 and telephone
number (202) 653-8452. This Notice refers to Case Nos. 3-CA-2563,
3-CA-20023, 3-CA-20024, and 3-CA-20179.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provide:
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 Internal Revenue Service and Internal Revenue Service,
Detroit District, 12 FLRA No. 87 (1983); Harry S. Truman Memorial
Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983); U.S.
Customs Service, Region VII, Los Angeles, California, 10 FLRA 251
(1982); Kaiserslautern American High School, Department of Defense
Dependents Schools, Germany North Region, 9 FLRA 184 (1982).
/3/ Id.
/4/ The General Counsel's unopposed motion to correct the transcript
is granted; the transcript is hereby corrected as set forth therein.
/5/ Note the settlement agreement referred to infra.
/6/ The backpay grievance disposition form has blocks wherein the
first, second, and third step officials are to record their findings or
disposition of the grievance (Jt. Exh. 5; Tr. 78).
/7/ Respondent's brief contends that O'Connel's factual report could
only have been prepared under the agreement as a Step 2, Section H
written summary of factual information. Respondent goes on to state,
"This summary, however, was misplaced by her typist and inserted into
that section of Joint Exhibit 5 provided for the first-line supervisor"
(Respondent's brief, p. 17). Counsel for the General Counsel has moved
to strike this portion of the brief on the grounds that, "These
referenced statements and the conclusions drawn therefrom are not found
within any testimony, exhibit or offer of proof included in the official
records of the hearing." The General Counsel's motion is well taken
insofar as it involves the alleged action by a typist. The quoted
portion of the brief, dealing with alleged action by a typist, is
completely unsupported by the record, which must be the exclusive basis
for a decision herein, and is hereby stricken.
/8/ Sizemore subsequently told Johnson that he had been reprimanded
for his report (Tr. 49). I infer from all of the relevant testimony
that Sizemore was reprimanded for the nature of his report rather than
for the act of making the report at all.
/9/ Respondent's brief suggests that O'Connell's report was
misdirected to the Union and was never delivered to the Office of Human
Resources. There is no evidence to support this assertion.