[ v20 p749 ]
20:0749(88)CO
The decision of the Authority follows:
20 FLRA No. 88
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Respondent
and
SOCIAL SECURITY ADMINISTRATION
DIVISION OF LABOR RELATIONS
Charging Party
Case No. 3-CO-40025
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it 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 unfair labor practices alleged in the
complaint, and recommended dismissal of that part of the complaint.
Thereafter, the Respondent filed exceptions 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 recommended 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 American Federation of Government Employees, Local 1923,
AFL-CIO, shall:
1. Cease and desist from:
(a) repudiating the November 9, 1983 Settlement Agreement entered
into with the Social Security Administration wherein it agreed not to
file a grievance concerning the adverse action taken against Ms.
Gwendolyn T. Perrin.
(b) In any like or related manner failing to bargain in good faith
with the Social Security Administration.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Honor the Settlement Agreement entered into with the Social
Security Administration on November 9, 1983, wherein it agreed not to
file a grievance concerning the adverse action taken against Ms.
Gwendolyn T. Perrin.
(b) Withdraw any pending grievance and/or pending request for
arbitration predicated on the adverse action taken against Ms. Gwendolyn
T. Perrin on November 9, 1983.
(c) Post at its business offices and its normal meeting places,
including all places where notices to members and other employees of the
Social Security Administration are customarily posted, 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
President of Local 1923, American Federation of Government Employees,
AFL-CIO, or a designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to members and other
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(d) Submit appropriate signed copies of such Notices to the
Administrator of the Social Security Administration, Baltimore,
Maryland, for posting in conspicuous places where the unit employees are
located, where they shall be maintained for a period of 60 consecutive
days from the date of posting.
(e) 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 portion of the complaint in Case No.
3-CO-40025 found not to have violated the Statute be, and it hereby is,
dismissed.
Issued, Washington, D.C.,November 25, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER 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 MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT repudiate the November 9, 1983 Settlement Agreement
entered into with the Social Security Administration wherein we agreed
not to file a grievance concerning the adverse action taken against Ms.
Gwendolyn T. Perrin.
WE WILL NOT in any like or related manner fail to bargain in good
faith with the Social Security Administration.
WE WILL honor the Settlement Agreement entered into with the Social
Security Administration on November 9, 1983, wherein we agreed not to
file a grievance concerning the adverse action taken against Ms.
Gwendolyn T. Perrin.
WE WILL withdraw any pending grievance and/or pending request for
arbitration predicated on the adverse action taken against Ms. Gwendolyn
T. Perrin on November 9, 1983.
---
(Labor Organization)
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, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W., Room. 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Respondent
and
SOCIAL SECURITY ADMINISTRATION
DIVISION OF LABOR RELATIONS Charging
Party/Agent
Gregory K. McGillivary, Esquire; Bruce D. Rosentein,
Esquire For the General Counsel
Carl J. Clayton, Esquire For the Charging Party
Alvin S. Levy, Esquire For the Respondent
Before: BURTON S. STERNBURG, 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.
Section 7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on May 11, 1984, by the Social Security
Administration, Division of Labor Relations, (hereinafter called the
Charging Party or SSA), a Complaint and Notice of Hearing was issued on
July 30, 1984, by the Acting Regional Director for Region III, Federal
Labor Relations Authority, Washington, D.C. The Complaint alleges, in
substance, that the American Federation of Government Employees, Local
1923, AFL-CIO (hereinafter called the AFGE or Respondent), violated
Sections 7116(b)(5) and (1) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by repudiating a
settlement agreement signed by a duly authorized representative.
A hearing was held in the captioned matter on September 25, 1984, in
Baltimore, Maryland. All parties were afforded the full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. All parties orally
summed up their respective positions at the hearing and waived the
submission of post-hearing briefs. Upon the basis of the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions and recommendations.
Findings of Fact
The American Federation of Government Employees, AFL-CIO is the
exclusive representative in a national consolidated unit for a majority
of the employees working for the Social Security Administration. Local
1923, AFGE is an agent of the American Federation of Government
Employees, AFL-CIO, and acts as its representative at the Baltimore,
Maryland headquarters of the Social Security Administration. Mr. Robert
N. Niemeyer is a steward for Local 1923, AFGE.
On September 30, 1983, Ms. Gwendolyn T. Perrin was served with a
notice of proposed removal from her position as a GS-2010-9 Inventory
Management Specialist. The notice of removal from Mr. John Spencer,
Chief Supply Management Branch, charged Ms. Perrin with (a) failing to
account for 28 items of Government property valued at $26 which she
purchased at the Self Service Store, and (b) taking Without
authorization and for non-official use, 28 items of Government property
from the Self Service Store valued at $26. The removal action was to
take place 30 days from Ms. Perrin's receipt of the notice of proposed
removal.
The notice of proposed removal further informed Ms. Perrin, among
other things, that she had the right to respond to the proposed removal
action within 20 days. Any response was to be made by Ms. Perrim or her
duly authorized representative to Mr. Donald E. Devine, Director
Division of Property Management. According to the record, Mr. Devine's
decision on the matter was to be the final one.
On or about October 19, 1983, Ms. Perrin and her representative,
Local 1923, AFGE steward Robert Niemeyer met, with Mr. Devine for
purposes of presenting a written rebuttal to the charges contained in
the proposed removal action. During the meeting Mr. Niemeyer claimed
Ms. Perrin was innocent of the charges and that it was his intent to
fight the case all the way. In support of his position he orally set
forth what was contained in the written rebuttal. Inasmuch as the
written rebuttal was a lengthy document, Mr. Devine informed Ms.
Niemeyer that it would take him, Mr. Devine, considerable time to review
the written rebuttal and that he would get in touch with him at a
subsequent date.
On approximately November 1, 1983, after interviewing some seven
other employees who had either been mentioned in Ms. Perrin's written
rebuttal or had been mentioned during the interviews of the employees
named in the written rebuttal, Mr. Devine again met with Mr. Niemeyer.
Mr. Devine informed Mr. Niemeyer that after reviewing the matter he was
of the opinion that a removal action was not warranted. In place of the
removal action, Mr. Devine stated that he would be satisfied with giving
Mr. Perrin a 14 day suspension provided that she would agree not to
further grieve the matter. When Mr. Niemeyer objected to the 14 day
suspension as being too severe, Mr. Devine agreed to consider the matter
further and get back to Mr. Niemeyer. /1/
Approximately two days later Mr. Devine telephoned Mr. Niemeyer and
informed him that he had reconsidered the matter and decided to reduce
the penalty to a one day suspension provided that Mr. Perrin "would not
further grieve the action." Mr. Niemeyer replied that he would have to
discuss the matter with Mr. Perrin. Shortly thereafter Mr. Niemeyer
telephoned Mr. Devine and advised him that Mr. Perrin wished to talk to
Mr. Devine.
On November 5, 1983, Mr. Perrin met with Mr. Devine and told him that
she was of the opinion that the penalty was too severe. She further
informed him that she wanted to keep her record clean and hoped that "it
would not be blemished by the one-day suspension." Mr. Devine stuck to
his guns and told Ms. Perrin that in his opinion a penalty was
warranted.
ON November 9, 1983, Mr. Devine issued a one day suspension to Ms.
Perrin. On the same day Mr. Devine and Mr. Niemeyer signed a document
entitled Settlement Agreement. The Settlement Agreement reads as
follows:
In accordance with the agreement reached between Ms. Gwen Perrin,
her Union representative, Mr. Robert Niemeyer and Mr. Donald
Devine, the following is agreed to:
1. The Pending Removal action will be reduced to a 1 calendar
day suspension, and
2. Ms. Perrin hereby waives any and all rights to grieve the
action further or take the action before an arbitrator.
Thereafter, by a "standard Grievance Form" dated December 1, 1983,
Local 1923, AFGE by its agent, Alvin Levy, filed a grievance over Mr.
Perrin's one day suspension.
Subsequently, by a memorandum dated December 7, 1983, Local 1923,
AFGE, by its agent, Arnold Spivak, notified the Social Security
Administration that it was invoking arbitration with respect to the
grievance predicated on Ms. Perrin's one day suspension.
Discussion and Conclusions
There is no substantial disagreement with the facts as reported
above. Thus the Union admits that it signed the settlement agreement
wherein it waived its right to file any further grievances over the
matter of the adverse personnel action involving Ms. Perrin and then
immediately thereafter proceeded to file a grievance and request
arbitration based thereon.
In defense of its action, the Union takes the position that it was
entitled to repudiate the agreement since it was based on economic
coercion. According to the Union, the economic coercion was the
alternative of accepting Mr. Devine's offer or having Ms. Perrin, a
single parent with three children to support, without compensation for
the extended period of time it would take to process a grievance through
arbitration. Since Ms. Perrin could not afford to be without funds for
such a considerable period of time the Union was forced to accept the
Agency's offer of a one day suspension and waive any further grievance
proceedings on the matter.
While I am sympathetic to the Union's position with respect to the
financial problems Ms. Perrin could expect to encounter if she was
subjected to an extended period of unemployment, I am constrained to
find that such anticipated financial problems are not a sufficient basis
for excusing to the Union's action in completely repudiating the
settlement agreement. The problem faced by the Union on Ms. Perrin's
account, i.e, to settle or fight, is no different from that encountered
by other plaintiffs in the legal arena who believe that they have been
wronged but opt to settle in lieu of costly and time consuming
litigation. I have not been shown, nor has my research disclosed, any
case precedent to support the Union's position.
Accordingly, I find that the Union's action in filing a grievance and
seeking arbitration with respect to Ms. Perrin's one day suspension
constituted a complete repudiation of the settlement agreement in
violation of Section 7116(b)(5) of the Statute. Cf. Great Lakes
Program Service Center, social security Administration, Department of
Health and Human Services, Chicago, Illinois, 9 FLRA No.7.58.
Although neither party has addressed the matter, I cannot find that
the Union's refusal to bargain herein also constituted a derivative
7116(b) (1) violation of the Statute. This is particularly true herein
where the only employee affected by the Union's action, i.e., Ms.
Perrin, benefited from such action. While not controlling, it is noted
that the NLRB has reached a similar conclusion in the private sector.
National Maritime Union of America, 78 NLRB 971 at 985; enf. 175 F.2d
686; cert. denied 338 U.S. 954. Accordingly, it is hereby recommended
that the 7116(b)(1) allegation be dismissed in its entirety.
In view of the above finding, it is hereby recommended that the
Federal Labor Relations Authority issue the following Order designed to
effectuate the purposes and policies of the Statute.
ORDER
Pursuant to Section 242.3.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the American Federation of Government Employees, Local 1923,
AFL-CIO, shall:
1. Cease and desist from: (a) Repudiating the November 9, 1983
Settlement Agreement entered into with the Social Security
Administration wherein it agreed not to file any grievances
concerning the adverse action taken against Ms. Gwendolyn T.
Perrin. (b) In any like to related manner failing to bargain in
good faith with the Social security Administration.
2. Take the following affirmative action in order to effectuate
the purposes and policies of the Stature. (a) Honor the
settlement Agreement entered into with the Social Security
Administration of November 9, 1983, wherein it agreed not to file
any grievances concerning the adverse action taken against Ms.
Gwendolyn T. Perrin (b) Withdraw all pending grievances and/or
pending requests for arbitration predicated on the adverse action
taken against Ms. Gwendolyn T. Perrin on November 9, 1983. (c)
Post at the Social Security Administration Headquarters in
Baltimore, Maryland, 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 President of Local
1923, American Federation Government Employees, AFL-CIO, and shall
be posted and maintained by him for 60 consecutive days thereafter
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. The
President shall take reasonable steps 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.
(s)---
BURTON S. STERNBURG
Administrative Law Judge
Dated: November 6,1984
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT repudiate the November 9, 1983, Settlement Agreement
entered into with the Social Security Administration wherein we agreed
not to file any grievances concerning the adverse action taken against
Ms. Gwendolyn T. Perrin.
WE WILL NOT in any like to related manner fail to bargain in good
faith with the Social Security Administration.
WE WILL honor the Settlement Agreement entered into with the Social
Security Administration on November 9, 1983, wherein we agreed not to
file any grievances concerning the adverse action taken against Ms.
Gwendolyn T. Perrin.
WE WILL withdraw all pending grievances and/or pending requests for
arbitration predicated on the adverse action taken against Ms. Gwendolyn
T. Perrin on November 9, 1983.
---
(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 of the Federal Labor Relations Authority, Region III,
whose address is: 1111 18th Street, NW., Suite 700, P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number number is: (202)
653-8456.
--------------- FOOTNOTES$ ---------------
/1/ Mr. Niemeyer admits having several conversations with Mr. Devine
but denies that Mr. Devine ever proposed a fourteen day suspension as an
alternative to the proposed removal action. Having observed the
witnesses and their demeanor, I have credited Mr. Devine.