21:0319(43)CO - National Council of SSA Field Operations Locals - Council 220 AFGE and Rose M. Lepore, Regional Commissioner, Region III, SSA -- 1986 FLRAdec CO
[ v21 p319 ]
21:0319(43)CO
The decision of the Authority follows:
21 FLRA No. 43
NATIONAL COUNCIL OF SOCIAL
SECURITY ADMINISTRATION FIELD
OPERATIONS LOCALS -- COUNCIL 220
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Respondent
and
ROSE M. LEPORE, REGIONAL
COMMISSIONER, REGION III
SOCIAL SECURITY ADMINISTRATION
Charging Party
Case No. 2-CO-50010
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed to the attached Decision of the Administrative Law Judge. The
complaint before the Judge alleged that the National Council of Social
Security Administration Field Operations Locals -- Council 220, American
Federation of Government Employees, AFL-CIO (the Union) violated section
7116(b)(5) of the Federal Service Labor-Management Relations Statute
(the Statute) by refusing to execute a negotiated agreement concerning
overtime distribution and compensatory leave. The Judge found that the
Union had engaged in the unfair labor practices alleged in the
complaint, in violation of the Statute, and recommended that the
Authority issue an appropriate order directing the Union to cease and
desist from these unfair labor practices.
II. Background Facts
As the result of negotiations between the Union and the Agency (the
Charging Party), concerning overtime distribution and compensatory
leave, the parties reached an agreement. However, when the agency
presented the agreement for signature to Thomas Biggar, the Union's
Acting Regional Vice President, with whom it had been negotiating,
Biggar refused to sign the agreement, stating that he was under a direct
order not to sign. The agency then filed the unfair labor practice
charge that led to this complaint.
III. Positions of the Parties
At the hearing the General Counsel argued that the Union negotiator,
Biggar, had the apparent authority to bind the Union and that, if he was
restricted in any way in this regard, the Union had failed to meet the
burden of proving that the agency was aware of any such restrictions.
In its exceptions, the Union argues, as it did before the Judge, that
the agency had the burden of explicitly confirming with higher Union
officials the exact nature of Union negotiator Biggar's authority to
bind the Union to an agreement. If the agency had sought such
confirmation, it argues, the agency would then have known that Biggar's
authority was in fact limited. From this, it contends that the Judge
was incorrect in finding that the Union should be bound by Biggar's
actions.
IV. Analysis
In his decision, the Judge held that Union negotiator Biggar
possessed at least apparent authority to bind the Union and that the
Union failed to meet the burden of proving otherwise. We agree with the
Judge's conclusion that, as an authorized representative of the
Respondent Union negotiated and reached agreement, the Union must be
required to sign the written memorandum of understanding embodying the
agreed upon terms. However, we find it unnecessary to pass upon, and
specifically do not adopt, the Judge's statement with regard to whether,
or in what forum, the memorandum's enforceability may be challenged as
potentially conflicting with the terms of the parties' national
collective bargaining agreement.
V. Conclusion
The Authority has considered the Judge's Decision, the exceptions to
that Decision, the positions of the parties and the entire record, and
adopts the Judge's findings, /1/ conclusions, and recommended Order as
modified. /2/ Pursuant to section 2423.29 of the Authority's Rules and
Regulations and section 7118 of the Statute, the Authority has reviewed
the rulings of the Judge made at the hearing, finds that no prejudicial
error was committed, and thus affirms those rulings. We therefore
conclude that the Respondent has violated section 7116(b)(5) of the
Statute by ordering its agent to refuse to execute a negotiated
agreement concerning overtime distribution and compensatory leave and by
continuing to refuse to execute that agreement.
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 National Council of Social Security
Administration Field Operations Locals -- Council 220, American
Federation of Government Employees, AFL-CIO, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Region III, Social
Security Administration, by withdrawing its delegation of authority to
its agent, Biggar, by ordering him not to sign, and by refusing to sign
the January 21, 1985 written memorandum of understanding embodying terms
and conditions of employment concerning overtime distribution and
compensatory leave on which full agreement had been reached.
(b) In any like or related manner failing to bargain in good faith
with Region III, Social Security Administration.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, sign the January 21, 1985 memorandum of
understanding reached with Region III, Social Security Administration,
which embodies terms and conditions of employment concerning overtime
distribution and compensatory leave on which full agreement had been
reached.
(b) Post at its business offices and normal meeting places, including
all places where notices to members and to employees of Region III,
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
Regional Vice President of the National Council of Social Security
Administration Field Operations Locals -- Council 220, American
Federation of Government Employees, AFL-CIO, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous places,
including all 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.
(c) Submit appropriate signed copies of such Notice to the Regional
Commissioner, Region III, Social Security Administration, for posting in
conspicuous places where unit employees are located, where they should
be maintained for a period of 60 consecutive days from the date of
posting.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., April 16, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, 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 refuse to bargain in good faith with Region III, Social
Security Administration, by withdrawing the delegation of authority to
our agent, Biggar, by ordering him not to sign, and by refusing to sign
the January 21, 1985 written memorandum of understanding embodying terms
and conditions of employment concerning overtime distribution and
compensatory leave on which full agreement had been reached.
WE WILL NOT in any like or related manner fail to bargain in good
faith with Region III, Social Security Administration.
WE WILL, upon request, sign the January 21, 1985 memorandum of
understanding reached with Region III, Social Security Administration,
which embodies terms and conditions of employment concernint overtime
distribution and compensatory leave on which full agreement had been
reached.
. . . (Labor Organization)
Dated: . . . By: (Signature) (Title)
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 II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 2237, New York, New York 10278, and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
NATIONAL COUNCIL OF SOCIAL SECURITY \
ADMINISTRATION FIELD OPERATIONS
LOCALS -- COUNCIL 220, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO
Respondent
and Case No.: 2-CO-50010
ROSE M. LEPORE, REGIONAL
COMMISSIONER, REGION III, Social
Security Administration
Charging Party
John R. Steen, Esquire
Edgar Allan Jones, III, Esquire
For the General Counsel
Martin R. Cohen, Esquire
For the Respondent
Irving L. Becker, Esquire
For the Charging Party
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 an amended charge first filed on February 26, 1985, by
Rose M. LePore, Regional Commissioner, Region III, Social Security
Administration, (hereinafter called the Charging Party or SSA), a
Complaint and Notice of Hearing was issued on April 29, 1985, by the
Regional Director for Region II, Federal Labor Relations Authority, New
York, New York. The Complaint alleges that the National Council of
Social Security Administration Field Operations Locals -- Council 220,
American Federation of Government Employees, (hereinafter called the
Union or Respondent), violated Section 7116(b)(5) of the Federal Service
Labor-Management Relations Statute, (hereinafter called the Statute), by
virtue of its actions in refusing to execute a negotiated agreement
concerning overtime distribution and compensatory leave.
A hearing was held in the captioned matter on June 10, 1985, in
Philadelphia, Pennsylvania. All parties were afforded the full
opportunity to be heard, to examine and cross-examine witness, and to
introduce evidence bearing on the issues involved herein. The General
Counsel and the Respondent submitted post-hearing briefs on July 25,
1985, which have been duly considered.
Upon the basis of the entire record, including my observation of the
witness and his demeanor, I make the following findings of fact,
conclusions, and recommendations.
Findings of Fact
The American Federation of Government Employees, AFL-CIO (AFGE), is
the exclusive representative of a consolidated nationwide unit of
certain employees of the Social Security Administration, including among
others, all employees employed in the District and Branch offices of the
Social Security Administration in the States of Pennsylvania, Delaware,
Virginia, West Virginia and Washington, D.C. /3/ The aforementioned
District and Branch offices of the Social Security Administration fall
within the jurisdiction of Region III and are under the supervision of
Regional Commissioner Ms. Rose LePore. Council 220, the Respondent
herein, is the AFGE representative for Region III. Thomas Wachter is
the Regional Vice President for Council 220 and empowered to negotiate
and execute agreements on behalf of Council 220. He also has the power
to delegate his responsibilities in the area of negotiations such as
grievances to other Union representatives.
Mr. Michael Gutkind, Regional Labor Relations Specialist, represents
SSA Region III in labor relations matters at the local, area and
regional levels. In his capacity as the Regional Labor Relations
Specialist he has successfully negotiated agreements at all levels,
i.e., local, area and regional wide, with Mr. Wachter's designees that
have been signed by the Respondent Union. Although the Respondent Union
had a policy of having any agreement negotiated by Mr. Wachter's
designees reviewed by Mr. Wachter or Ms. Jill Hastings, a Regional Vice
President designee, prior to execution, /4/ Mr. Gutkind was never
advised of this policy.
On August 6, 1984, Mr. Wachter designated Mr. Thomas Biggar, a
Regional Vice President and also a Local president, to represent the
Respondent Union on a grievance concerning the assignment of overtime.
At this time Mr. Biggar had already been designated the Union's
representative on another grievance concerning the awarding of
compensatory time for overtime worked. There was also a third grievance
pending concerning overtime which had been assigned to another
representative or designee. The grievances concerned the way volunteers
were selected for overtime and the awarding of compensatory time in lieu
of wages.
SSA Region III was of the opinion that the grievances had some merit
as there appeared to be a difference in the various offices of SSA
concerning the criteria to be utilized in selecting individuals for
overtime and the awarding of compensatory time for overtime worked.
Thus it appears that some offices would not allow employees to work
overtime if they had used annual leave during the pay period when
overtime work was available. In order to correct the situation the
Regional Commissioner decided that a region-wide agreement should be
negotiated so that there would be uniformity among all the offices
within the Region with respect to the awarding of overtime.
In September 1984, Mr. Gutkind telephoned Mr. Biggar, and discussed
the grievances that Mr. Biggar had been designated on as the Union
representative, informed Mr. Biggar that he was personally speaking for
the Regional Commissioner and that she desired to negotiate a settlement
which would be Region wide, and that although he, Mr. Biggar, did not
represent the Union on the third grievance pending against SSA Region
III it would be appreciated if he could coordinate its resolution with
the other two grievances on which he had been designated union
representative. Mr. Biggar agreed to coordinate the third grievance and
agreed to exchange proposals with Mr. Gutkind. /5/
In accordance with their agreement, Mr. Gutkind mailed his proposals
to Mr. Biggar on October 19, 1984. Mr. Biggar received the proposals
and on November 8, 1984 mailed counterproposals to Mr. Gutkind. Mr.
Gutkind considered the counterproposals to be applicable to all three
grievances since Mr. Biggar stated in proposal No. (3) as follows:
3. The Union agrees to withdraw all requests for individual
remedies in the 2 grievances which raised these issues. The Union
also agrees to withdraw its arbitration request in 84k14304. /6/
In making his counterproposals Mr. Biggar requested that further
negotiations be postponed until he returned from an assigned work detail
which ran or was scheduled to run from September 1, 1984 through
December 14, 1984. Mr. Gutkind did not pursue the matter until he
returned from a two week vacation in early January, 1985.
In early January 1985, Mr. Wachter notifed the SSA Region III by
telephone that Mr. Biggar would be Acting Regional Vice President of
Council 220 because he, Mr. Wachter, was going to be involved for
approximately 30 days in negotiations in Baltimore. Mr. Wachter
confirmed the delegation in writing by letter dated January 17, 1985.
Although Mr. Wachter testified that he had informed Mr. Biggar not to
sign any agreement without first contacting Ms. Jill Hastings, he
admitted that he had never informed Mr. Gutkind of any kind of
restrictions on Mr. Biggar's authority. The record indicates that Mr.
Biggar had on two occasions in the past been designated Acting Regional
Vice President.
According to Mr. Gutkind, he telephoned Mr. Biggar in early January
and discussed the proposals and the fact that it included all three
grievances. Although, Mr. Biggar testified that all his discussions
were confined to only two grievances, he did acknowledge that the
Agency's proposals would have region-wide impact. Subsequently, Mr.
Gutkind and Mr. Biggar, commencing on January 9, 1985, held
approximately five or six telephone conversations and discussed the
problems each had with the other's proposals. /7/ The parties finally
reached an agreement on or about January 14, 1985. Mr. Gutkind then
prepared a written agreement, had it signed by Commissioner LePore, and
mailed it to Mr. Biggar for signature. According to Mr. Biggar, during
the negotiations, he on one occasion notified Mr. Gutkind that the
agreement was subject to review by Mr. Wachter. Mr. Gutkind denies ever
being informed of any limitation on Biggar's authority, and I credit his
denial.
Shortly after January 14, 1985, Mr. Wachter spoke with Ms. Hastings
and learned that Mr. Biggar was negotiating an agreement which involved
more than the grievances on which he had been designated the union
representative. Mr. Wachter then telephoned Mr. Biggar and requested
all correspondence on the matter.
Ms. Hastings then contacted Mr. Gutkind by telephone on January 16,
1985, and informed him that there would be no regional agreement on the
subject of overtime. Mr. Gutkind informed Ms. Hastings that he was
dealing with Mr. Biggar on the matter. Mr. Gutkind then telephoned Mr.
Biggar and informed him of Ms. Hastings' telephone call. Mr. Biggar
apologized and stated that Ms. Hastings was out of line, that he
intended to sign the agreement and that he would straighten out the
matter. /8/
On January 21, 1985, not having received the signed agreement from
Mr. Biggar, Mr. Gutkind telephoned Mr. Biggar and inquired about its
status. Mr. Biggar informed Mr. Gutkind that he would not sign the
agreement without four specified changes. Although Mr. Gutkind insisted
that an agreement had already been reached, Mr. Biggar stood fast in his
position that further changes would have to be made before he signed the
agreement. The telephone conversation ended with Mr. Gutkind agreeing
to reconsider the matter. Later that same day, after determining that
the changes did not materially change the agreement, Mr. Gutkind
telephoned Mr. Biggar and informed him that his suggested changes would
be made and that another signed agreement would be mailed to him. Mr.
Gutkind then redrafted the agreement, had it signed by Ms. LePore and
mailed it out on January 24, 1985.
By letter dated February 4, 1985, Ms. Hastings informed Ms. LePore
that the Union would be glad to negotiate an agreement on the assignment
of overtime.
On February 12, 1985, Mr. Gutkind telephoned Mr. Biggar and asked
where the signed agreement was. Mr. Biggar informed him that he could
not sign the agreement because he had received orders from Mr. Wachter
forbidding its execution. According, to Mr. Gutkind, Mr. Biggar told
him that he had been threatened with a personal law suit and could not
discuss the matter further. According, to Mr. Wachter, he did not want
the agreement signed because he was of the opinion that it conflicted
with the parties national agreement. /9/
On February 18, 1985, Mr. Biggar wrote a letter to Mr. Gutkind which
reads as follows:
Dear Michael,
The recent action of the union concerning the agreement we
negotiated troubles me. Because of that action I have resigned my
regional position. Although I am no longer in a position to make
agreements on a regional level and cannot sign the MOU as written,
I can make agreements covering Area 6 and am willing to sign the
MOU if it is revised to cover Area 6 offices only. I only wish
that there was some way I could have signed it for the region
because I think it was a good settlement. However faced with a
direct order not to sign and the threat of a suit if I did I had
no choice.
Please let me know if the above offer is acceptable. I hope it
is but can certainly understand why you might not want to make an
agreement for only one area.
Mr. Biggar subsequently resigned his Union position due in part to
the Union's action in preventing him from signing the agreement
negotiated with Mr. Gutkind.
Mr. Wachter testified that other than submitting a written
confirmation of Mr. Biggar's appointment to Acting Regional Vice
President, he never discussed with Mr. Gutkind any restriction he had
placed on Mr. Biggar's authority to represent the Union. /10/
Discussion and Conclusions
The General Counsel takes the position that the Union violated
Section 7116(b)(5) of the Statute by refusing to execute the memorandum
of understanding concerning overtime distribution and compensatory leave
negotiated by Mr. Gutkind and Mr. Biggar while Mr. Biggar was acting in
the capacity as Acting Regional Vice President. In support of his
position the General Counsel points out that the Regional Vice President
possessed the power to bind the Union. In such circumstances, while
there may have been some internal restrictions on Mr. Biggar's
designation as Acting Regional Vice President, such restrictions were
never conveyed to SSA, Region III. In such circumstances the Union is
bound by the memorandum of understanding negotiated by its agent, Mr.
Biggar, who it had clothed with the apparent authority possessed by the
Regional Vice President in the area of negotiability.
The Respondent Union, on the other hand, takes the position that it
was under no obligation to sign the memorandum of understanding since
Mr. Gutkind was aware of the fact that any agreement negotiated by Mr.
Biggar was subject to approval of Mr. Wachter. In support of its
position it relies on the testimony of Mr. Biggar and points out, that
in any event, Mr. Gutkind should have sought clarification of Mr.
Biggar's bargaining authority following the telephone call from Ms.
Hastings. Additionally, the Union argues that it should be excused from
executing the memorandum of understanding because it conflicts with the
terms of the national agreement between the parties.
Section 7114(b)(5) of the Statute provides that "the duty of an
agency and an exclusive representative to negotiate in good faith . . .
shall include the obligation if an agreement is reached, to execute on
the request of any party to the negotiation a written document embodying
the agreed terms . . . ." Failure of a union to so execute an agreement
embodying agreed terms of employment is violative of Section 7116(b)(5)
of the Statute. American Federation of Government Employes, AFL-CIO,
Local 3732 and Department of Transportation, Maritime Administration,
U.S. Merchant Marine Academy, Kings Point, N.Y., 16 FLRA No. 50.
Respondent Union does not appear to be arguing with the above
conclusions concerning the state of the law, but rather takes the
position that although agreement had been reached between Mr. Gutkind
and Mr. Biggar on the memorandum of understanding dealing with the
distribution of overtime, etc., the agreement was subject to the
approval of Mr. Wachter.
However, in order to sustain such position, it is incumbent upon the
Respondent Union to prove that SSA, Region III had prior knowledge of
the restrictions placed on Mr. Biggar, who by virtue of his position as
Acting Regional Vice President had apparent authority to conclude an
agreement. In this context, Mr. Wachter admits that any internal
restrictions on Mr. Biggar's authority to enter into a binding agreement
were never conveyed by him to management during his conversations with
Mr. Gutkind. In fact the only evidence indicating that such
restrictions were conveyed to management is Mr. Biggar's testimony that
on one occasion during the negotiations he told Mr. Gutkind that any
agreement was subject to Mr. Wachter's approval. Mr. Gutkind denies
being so informed. /11/
The fact that Ms. Hastings may have informed Mr. Gutkind that the
agreement would never be signed does not alter the above conclusion
since Ms. Hasting was subordinate to the Regional Vice President in
authority.
Finally, with respect to Respondent Union's defense predicated upon
the allegation that the memorandum of understanding conflicts with the
terms of the national collective bargaining agreement, I find such
defense to be without merit. Whether or not there is a conflict between
the memorandum of understanding and the terms of the national collective
bargaining agreement which might render the memorandum of understanding
unenforceable is a matter to be determined in another forum, i.e.,
arbitration or a suit to rescind the memorandum of understanding.
Accordingly, having designated Mr. Biggar Acting Regional Vice
President without any restrictions, save the pending grievances on which
Mr. Wachter was the designated Union representative, and having clothed
Mr. Biggar with all the apparent authority of the Regional Vice
President, it is obligated to honor and execute any and all agreements
negotiated by him. Long Beach Naval Shipyard, Long Beach, California
and FEMTC, AFL-CIO, 7 FLRA 102.
Based upon the above findings and conclusions, I further find that by
refusing to execute the memorandum of understanding concerning the
distribution of overtime and compensatory leave, the Respondent Union
violated Section 7116(b)(5) of the Statute.
Having found that the Respondent Union has violated the Statute, I
hereby recommend that the Authority issue the following order designed
to effectuate the purposes and policies of the Statute. /12/
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 National Council of Social Security Administration Field
Operations Locals -- Council 220, American Federation of Government
Employees, AFL-CIO, shall:
1. Cease and desist from:
a. Refusing to bargain in good faith with Region III, Social
Security Administration by refusing to sign the January 21, 1985
written memorandum of understanding embodying terms and conditions
of employment concerning overtime distribution and compensatory
leave on which full agreement had been reached.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
a. Upon request, sign the January 21, 1985, memorandum of
understanding reached with Region III Social Security
Administration which embodies terms and conditions of employment
concerning overtime distribution and compensatory leave on which
full agreement had been reached.
b. Post at its business offices and normal meeting places
including all places where notice to members are customarily
posted throughout Region III of the Social Security Administration
copies of the attached Notice on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by
the Regional Vice President of the National Council of Social
Security Administration Field Operations Locals -- Council 220,
American Federation of Government Employees, AFL-CIO, and shall be
posted by him for 60 consecutive days. Reasonable steps shall be
taken to insure that such notices are not altered, defaced, or
covered by any other material.
c. Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, 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: August 21, 1985
Washington, DC
------- FOOTNOTES$ ----------
(1) The Respondent in essence excepted to certain credibility
findings made by the Judge. The demeanor of witnesses is a factor of
consequence in resolving issues of credibility, and the Judge has had
the advantage of observing the witnesses while they testified. The
Authority will not overrule a Judge's resolution with respect to
credibility unless a clear preponderance of all the relevant evidence
demonstrates that such resolution was incorrect. The Authority has
examined the record carefully, and finds no basis for reversing the
Judge's credibility findings.
(2) The Judge's recommended Order has been modified for consistency
with remedial orders previously issued where substantially identical
violations of the Statute have been found. See, e.g., American
Federation of Government Employees, AFL-CIO, Local 3732, 16 FLRA 318
(1984).
(3) The AFGE and SSA are parties to a nationwide collective
bargaining agreement.
(4) In her position as a Regional Vice President designee, Ms.
Hastings handles various matters and/or assignments from Mr. Wachter.
(5) Mr. Biggar acknowledges a discussion with Mr. Gutkind, but claims
that the discussion only involved the two grievances that he had been
designated as union representative.
(6) Mr. Gutkind testified that he understood the reference to the two
grievances and one arbitration request to be the three grievances he had
discussed earlier in the negotiations with Mr. Biggar. Mr. Biggar
testified that his response was only applicable to the two grievances on
which he had been designated as the Union representative. Mr. Biggar's
testimony to this effect is supported by one of the grievances which
indeed makes mention of Arbitration No. 84k14304.
(7) At this time Mr. Biggar was Acting Regional Vice President for
Council 220.
(8) Mr. Biggar acknowledges the telephone call but claims that he
informed Mr. Gutkind that the only person within the Region that had
authority to review the agreement was Mr. Wachter.
(9) In this connection Article 10, Section 2 of the contract provides
in pertinent part as follows:
A. Overtime shall be distributed to bargaining unit employees
whose performance is fully satisfactory.
B. Overtime shall not be distributed or withheld as reward or
penalty.
Mr. Witold Skwierczynski, President of the National Council of SSA
Field Operation Locals and one of the negotiators of the national
collective bargaining agreement, corroborated Mr. Wachter's testimony
that the memorandum of understanding conflicts with the terms of the
national collective bargaining agreement. He further testified that
during negotiations for the national agreement the SSA had attempted to
insert restrictions on the distribution of overtime by penalizing
employees who had taken sick leave, annual leave or leave without pay
during the pay period when overtime leave was available.
(10) In his written notice to the Agency concerning the designation
of Mr. Biggar as Acting Regional Vice President, Mr. Wachter merely
informed the SSA that he would "continue to handle all pending
grievances and arbitration cases for which I am the representative of
record." No other restrictions were in the letter.
(11) Based upon my observation of the witnesses and their demeanor I
credit Mr. Gutkind's testimony that he was never informed of any
restriction on Mr. Biggar's apparent bargaining authority. Mr. Biggar's
hesitant testimony appeared to be tailored so as not to prejudice
Respondent Union's case.
(12) Although I recognize that ordering the Respondent Union to
execute the memorandum of understanding may turn out to be a futile act
since the memorandum of understanding may well conflict with the terms
of the national collective bargaining agreement, the fact remains that
an authorized representative of Respondent Union negotiated and reached
agreement on conditions of employment and is therefore required by the
Statute, upon request, to sign a written document embodying the agreed
upon terms.
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 refuse to bargain in good faith with Region III, Social
Security Administration by refusing to sign the January 21, 1985,
written memorandum of understanding embodying terms and conditions of
employment concerning overtime distribution and compensatory leave on
which full agreement has been reached.
WE WILL sign the January 21, 1985 memorandum of understanding reached
with Region III, Social Security Administration which embodies terms and
conditions of employment concerning overtime distribution and
compensatory leave on which full agreement had been reached.
National Council of Social
Security
Administration Field Operations
Locals -- Council 220, American
Federation
of Government Employees, AFL-CIO
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 2,
whose address is: 26 Federal Plaza, Room 2237, New York, NY 10278, and
whose telephone number is: (212) 264-4934.