[ v60 p674 ]
60 FLRA No. 132
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
AND
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
KANSAS CITY, MISSOURI
AND
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
ST. LOUIS, MISSOURI
(Respondents)
and
INTERNATIONAL FEDERATION
OF PROFESSIONAL AND
TECHNICAL ENGINEERS
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, REGION VII
(Charging Party/Union)
DE-CA-02-0657
DE-CA-02-0658
_____
DECISION AND ORDER
March 7, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel and the Union. The Respondents filed oppositions to the General Counsel's and the Union's exceptions.
For the following reasons, we grant the General Counsel's exceptions in part, deny them in part, and remand in part to the Chief Administrative Law Judge for further proceedings consistent with this decision. [n1]
II. Background and Judge's Decision
A. Background
The separate complaints in this case grew out of bargaining related to the relocation of the St. Louis office of the Respondents' Office of Hearings and Appeals (OHA). The facts related to each complaint will be set forth independently to facilitate the reader's understanding of the issues in the case.
1. Case No. DE-CA-02-0658
The Union in this case represents administrative law judges (ALJs) in the Respondents' OHA. The amended complaint in DE-CA-02-0658 alleges that the Respondents, at the national level, the regional level, and the local level, violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by constructing office space in preparation for the relocation of the St. Louis office of the OHA before completing bargaining with the Union.
On August 8, 2001, the regional level Respondent notified the Union that it was planning to relocate the OHA office and attached a proposed floor plan for the new site. The Union requested impact and implementation bargaining and proposed various "topics" for bargaining. General Counsel's Exhibits (G.C. Ex.) 3 at 1, Union Letter of August 10, 2004. Such topics included, but were not limited to, ALJ office size, the number and size of hearing rooms, parking availability for ALJs and the cost thereof, security measures for the new location, including the placement of metal detectors in the hearing office space, and facilities and equipment in ALJ offices and common use areas. Id. The regional level Respondent replied on August 24, 2001, noting that issues related to ALJ office space, the number and size of hearing rooms, and facilities were being bargained at the national level. See G.C. Ex. 4 at 1.
Before bargaining on the relocation began, on August 31, 2001, the parties at the national level agreed to a collective bargaining agreement, with the exception of the article on Facilities and Services, over which they proposed to continue bargaining. [n2]
On September 7, 2001, the Union submitted several proposals, including installation of a magnetometer, an x-ray machine, and use of a hand-held security wand, locks on the ALJs' office doors and various other doors in the office, and measures for rest room safety. G.C. Ex. 5. See also Judge's Decision at 4. The Union also proposed free inside parking spaces for the ALJs, modifications [ v60 p675 ] to the floor plan to ensure that all the ALJs were on the same side of the building, and an allowance for new furniture. Id.
At the initial bargaining session concerning the move to the new office location, on September 10, 2001, the Respondent at the regional level informed the Union that the regional and local levels did not have authority to bargain on matters related to security and refused to discuss the subject. The regional and local level Respondents also informed the Union that they were not authorized to bargain on parking. The parties did discuss the Union's proposal regarding office furnishings. On September 28, 2001, the regional level Respondent reiterated to the Union that it had no authority to bargain at the local or regional level on office security, parking or office furnishings because those were matters that must be bargained at the national level. G.C. Ex. 6. The Chief Negotiator, who was from the regional office Respondent, submitted the proposed floor plan as the final bargaining proposal, as well as a proposed Memorandum of Understanding which included, among other things, proposals relating to locks on the entrance doors to the office suite and on the hearing room doors. Id. The Respondents maintained that the "Union's demand to bargain on [security] properly belongs at the national level[,] otherwise referred to as the level of exclusive recognition for the [Union]." Judge's Decision at 5 (quoting regional level Respondent's September 28 letter to the Union). See G.C. Ex. 6.
In response, the Union indicated its willingness to go to mediation on office security, parking, and office furnishings. The parties, including local and regional officials of the Respondents, participated in mediation sessions on December 3 and 4, 2001. Among other things, the parties discussed matters related to the mechanics of moving from the current work location to the new location and agreed to certain arrangements. See G.C. Ex. 15. The parties did not, however, formalize their agreement and they did not address office security at the new location. As to parking, the Union's "initial demand" was for free parking spaces, but, in December 2001, the Union subsequently "orally proposed" that the Respondents "bargain on seeking allocated parking slots in the building lease for which each [ALJ] would pay." Judge's Decision at 9-10.
An official of the regional level Respondent, noting that: (1) the size of ALJ offices, the size of hearing rooms, and parking were matters that were being negotiated at the national level as part of the Facilities and Services article; and (2) office security was covered by Article 23 of the parties' collective bargaining agreement, subsequently submitted as its final offer the unsigned Memorandum of Understanding (MOU) concerning the mechanics of the move. See G.C. Ex. 15. Specifically, the regional level Respondent stated that the Agency had "no obligation to bargain further on security since it was fully discussed and consciously explored during national level bargaining and contained within the agreement." Judge's Decision at 7 (quoting Respondents' January 25 letter to the Union). See G.C. Ex. 15. The regional level Respondent also stated that "five major issues" separated the parties: the size of ALJ offices and of hearing rooms, parking, security, and the general floor plan layout. See id. at 6.
The Union requested clarification from the Respondents of the date on which construction would begin at the new location and of the expected date of the move. At the beginning of July, 2002, the regional level Respondent informed the Union that construction had begun on June 27 and that occupancy at the new location would be no later than September 30. G.C. Ex. 22. On August 9, 2002, the parties signed the MOU pertaining to the mechanics of the move which had been discussed during mediation the previous December. At the insistence of the Union, the MOU was entitled "Memorandum of Understanding (Concerning only matters not currently [in] dispute before FLRA and FSIP)[.]" Judge's Decision at 9. That same date, the Union filed the charge in the instant case.
The local level Respondent implemented the move to the new location toward the end of September, 2002, before bargaining had been completed with the Union over the move. In October 2002, the Federal Service Impasses Panel (FSIP or Panel) issued its order resolving the national level impasse over the Facilities and Services article, including provisions regarding allocation of parking spaces, as well as the provision of parking spaces free of cost, and office space and furnishings, matters which had initially been at issue between the parties in connection with the move. In particular, as noted by the Judge, the Panel's Decision and Order prescribed the terms governing the allocation of free parking spaces to the ALJs. See Judge's Decision at 10-12.
The amended complaint in DE-CA-02-0658 alleged that the Respondents violated § 7116(a)(1) and (5) of the Statute by implementing the move of the St. Louis office before completing bargaining as required by the Statute.
2. DE-CA-02-0657
On August 28 and 31, 2001, the Union requested from the Respondents, pursuant to § 7114(b)(4) of the Statute, information regarding security measures at [ v60 p676 ] other regional components of the national level Respondent. The regional level Respondent replied to these requests on September 6 and 7, 2001. See Respondents' Exhibits (R. Ex.) 8 and 9. The Union renewed its information request on November 6, 2001, and, on November 21, 2001, requested from local and regional officials of the Respondents, in addition, any security surveys or crime assessments that had been prepared by the General Services Administration, or others, relating to the new office location. G.C. Exs. 8 and 13. The Union indicated that it needed the information for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. Specifically, the Union noted that the security surveys and crime assessments "obviously relate to the safety and security of bargaining unit members and whether appropriate arrangements are needed to address these issues." G.C. Ex. 13. A regional official of the Respondents replied, on November 28, stating that the Union had not established a particularized need for the information and that there were no security surveys or crime assessments for the new location. G.C. Ex. 14.
During December, 2001, a representative of the Union had conversations with an employee of the Federal Protective Service (FPS) who was then preparing a security survey and crime assessment for the new location and who indicated that it would be completed at some time in January, 2002. The FPS employee provided the Union representative information as to security measures that he would recommend for that location. The completed survey and assessment was provided to the Respondents in late January.
At the beginning of February, the Union renewed its request at the regional level for the security survey and crime assessment, as well as for the information it had requested on August 28 and 31, 2001. See G.C. Exs. 16 and 17. The regional level Respondent replied that it had provided the information requested in August, see R. Ex. 8 and 9, but made no response to the request for the survey and assessment. In the words of the Judge, the February request was met with "silence." Judge's Decision at 20. On August 2, 2002, the Union reminded a regional official of the Respondents of its request for that information and that official indicated that the failure to provide the information was an oversight. The regional level Respondent made "no further response" and failed to provide the information. Id. On August 9, 2002, the Union filed the charge giving rise to the instant complaint, DE-CA-02-0657, alleging that the Respondents had violated § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's requests for the security surveys and crime assessments and § 7116(a)(1), (5), and (8) by failing to provide the requested information.
B. Judge's Decision
1. DE-CA-02-0658 [n3]
The Judge found that the matter of "entry security was an issue in national negotiations," where the Union submitted proposals concerning magnetometers, wands, x-ray machines and the treatment of OHA offices as class 4, instead of class 2, for security purposes. The Judge quoted testimony by a witness for the Respondents, who had participated in those negotiations, to the effect that the Respondents wanted to negotiate security at the national level because they "wanted a uniform policy as to how security was implemented in [the] various hearing offices[.]" Judge's Decision at 12 (quoting Transcript (Tr.) at 362). The witness also testified, as quoted by the Judge, that the Respondents "never delegated that authority to negotiate those topics to the local level." Id. (quoting Tr. at 363).
According to the Judge, "[e]ntry security, i.e., magnetometers, wands, x-ray machines[,] etc., was [a Union] demand at [these] national [level] negotiations." Id. The Judge noted that, under Justice Department's policy concerning Vulnerability Assessment of Federal Buildings, issued on June 28, 1995, most hearing offices, such as that involved in this case, are classified as class 2. In this regard, the Judge cited testimony establishing that the Respondents have "an articulated policy that [they do] not install magnetometers in level one and two offices." Id. (quoting Tr. at 402). The Judge found, however, that "there are some level two field offices and hearing offices that have had, and still have, magnetometers." Id. In addition, according to the Judge, although magnetometers were withdrawn from bargaining by the Union, the subject was supplemented by Section E of Article 23 of the parties' collective bargaining agreement, which provided that the Respondents would bargain over impact and implementation under Article 2 of the agreement. Judge's Decision at 13 (citing Tr. at 439-40). The Judge also found that the parties agreed on Article 23, in particular, Section 2.D. and Section 4, as a substitute for those proposals. Accordingly, the Judge concluded that "all matters of entry security are subject to, and covered by, Article 23 of the National Agreement." Id. at 29. [ v60 p677 ]
Addressing matters pertaining to private office furnishings, free parking, and ALJ office and hearing office space, the Judge found that "[a]ll of these issues applied nationwide, were negotiated at the national level and, when the parties reached an impasse, were resolved by the Decision and Order" of the Panel. Id. at 29. Because these matters are covered by the Facilities and Services article, "were negotiated at the national level, and, ultimately, were resolved by [the Panel]," the Judge concluded that the "Respondent[s] had no obligation to bargain on any of these issues with the Union." Id. at 29-30.
2. DE-CA-02-0657
The Judge found that the Union established a particularized need for the security surveys and crime assessments because the Union needed that information to determine whether to file a grievance over the Respondents' compliance with Article 23, Section 2.D. of the parties' agreement, which incorporated by reference Section E of the Respondents' Physical Protection and Building Security regulation. Section E states that the Respondents will provide "`all necessary security measures and services identified by security surveys and crime assessments and requested by OHA for the individual building.'" Judge's Decision at 17 (quoting the regulation. Res. Ex. 1). The Judge also concluded that disclosure of the information is not prohibited by law. Accordingly, the Judge found that the Respondents violated § 7116(a)(1), (5) and (8) of the Statute by failing to disclose the requested information. [n4]
3. Remedy
The Judge noted the General Counsel's request for nationwide posting, but found no convincing reasons for such a remedy. Finding that the case arose out of local bargaining, and that the head of the Respondents was not involved, the Judge concluded that "Regional posting, because of the direct involvement of the Region, will effectively show employees that Respondent[s] acknowledge their obligations under the Statute." Id. at 30 n.3.
III. Positions of the Parties
A. General Counsel's Exceptions
1. Failure to Respond to Request for
Information
The General Counsel asserts that the complaint in Case No. DE-CA-02-0657 alleged that the Respondents committed an independent violation of § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's requests for security surveys and crime assessments. The General Counsel also maintains that the Judge made factual findings establishing that the Respondents failed to respond to those requests. According to the General Counsel, the "failure to respond to a request for information under [§] 7114(b)(4) is inconsistent with the duty to bargain in good faith and independently violates [§] 7116(a)(1) and (5) of the Statute." G.C.'s Exceptions at 14-15 (citing United States Naval Supply Center, San Diego, Calif., 26 FLRA 324, 326-27 (1987) (Naval Supply Center)). The General Counsel requests that the Authority find such a violation on the facts of this case and order the Respondents to post a notice assuring employees that it will not fail to respond to the Union's requests for information under § 7114(b)(4) of the Statute.
2. Matters Covered by the Facilities and Services Article
Citing § 2429.5 of the Authority's Regulations, which provides that the Authority will not consider evidence relating to an issue that was not presented in the proceedings below, the General Counsel agues that the Judge reached legal conclusions concerning matters that were not within the scope of the complaint. Specifically, the General Counsel contends that it was "never alleged that subject matters within the parties' `Facilities and Services' article were part of the consolidated complaint." G.C.'s Exceptions at 16. According to the General Counsel, the complaint pertained only to matters that could have been bargained before the "build-out" commenced on June 27, 2002. Id. Because the Panel did not issue its decision and order on the Facilities and Services article until October, the General Counsel maintains that matters covered by that decision and order are not within the scope of the complaint. Consequently, the General Counsel claims, matters pertaining to the Panel decision and order were "not proper matters for judicial fact finding and legal conclusions." Id. at 17. In this regard, the General Counsel notes, the parties themselves put the Facilities and Services article beyond the issues in this case by agreeing in their MOU to exclude matters currently pending before the Authority [ v60 p678 ] and the Panel from the issues concerning the office move. The General Counsel accordingly requests that the Authority strike the part of the Judge's decision that relates to that article.
3. Scope of the Remedial Notice and Posting
Citing the Authority's standard for determining the scope of a posting requirement, the General Counsel argues that, when national level officials have directed how local and regional officials bargain and furnish information, the Authority has ordered a nationwide posting and required the "principal national official of the agency" to sign the notice. Id. at 19 (citing SSA, Office of Hearings and Appeals, Region II, Buffalo Office of Hearings and Appeals, Buffalo, N.Y., 58 FLRA 722, 727 (2003) (OHA, Buffalo)). According to the General Counsel, the instant case concerns a nationwide unit and a national policy precluding the disclosure of security surveys and crime assessments. In this regard, the General Counsel asserts, "the decision to withhold security surveys was coordinated at the national office" of the Respondents. Id. at 20.
The General Counsel notes that parking has also been an issue between the parties in more than one region, citing OHA, Buffalo. The General Counsel asserts that a nationwide posting will remind the Respondents of their responsibilities with respect to bargaining on such matters in other regions. In this regard, the General Counsel states that "because parking and security surveys affect unit employees at more than one region of the Office of Hearings and Appeals, and because the evidence shows that national level officials have directed several regions in dealing with local requests for information and bargaining in connection with office relocations," more than a region-wide posting is required in this case. Id. at 23-4. Consequently, the General Counsel requests a nationwide posting.
B. Charging Party's Exception
The Charging Party excepts to the Judge's factual and legal conclusions with respect to the finding that the Respondents did not violate § 7116(a)(1) and (5) by refusing to bargain on office entry security. Specifically, the Charging Party argues that the Judge misconstrued and misapplied the relevant provisions of the parties' agreement.
In this regard, the Charging Party notes that the Respondents' negotiators consistently maintained that neither local nor regional management had authority to bargain over changes in entry security resulting from relocation of the office. The Charging Party further notes that the Respondents' negotiators claimed that entry security was covered by Article 23, Health and Safety, of the parties' agreement. According to the Charging Party, Article 23 specifically provides that relocation of an office gives rise to an obligation to bargain at the local level, consistent with Article 2, Mid-Contract Negotiations, over the impact and implementation of any related changes in conditions of employment, including changes in entry security.
Citing Authority precedent, the Charging Party maintains that the Respondents have the burden of establishing the elements of a covered-by defense. See SSA, 55 FLRA 374, 382 (1999). In this regard, the Charging Party asserts that the Respondents did not raise a covered-by defense in their formal pleadings and did not address the matter in their post-hearing brief. Moreover, the Charging Party contends that, properly interpreted, Article 23 relinquishes neither the Charging Party's statutory nor its contractual bargaining rights. According to the Charging Party, national level bargaining settled the question, for example, of whether all Office of Hearings and Appeals offices would have magnetometers; it did not resolve issues related to bargaining over "changes in working conditions or past practices arising from individual office relocations taking place in the future over the three[-]year life of the" collective bargaining agreement. Charging Party's Exceptions at 17. Rather, the Charging Party maintains, under Article 2, Section 4.D., the Respondents were obligated to bargain over changes in conditions of employment, including entry security, "that affect only the St. Louis office, at the level of the St. Louis office." Id. at 18 (emphasis in original).
The Charging Party requests that the Authority find that the Respondents violated § 7116(a)(1) and (5) of the Statute by failing to negotiate security matters related to the relocation of the St. Louis office and issue an appropriate remedy.
C. Respondents' Opposition
1. Opposition to the General Counsel's Exceptions
According to the Respondents, the Judge "found it sufficient to find the Respondent[s] failed to supply the information rather than find a separate charge for not responding to the Union's information request." Respondents' Opposition to the G.C.'s Exceptions (Opposition to G.C.) at 2. The Respondents maintain that the General Counsel is "arguing a very fine point." Id.
The Respondents maintain that the parties were at impasse at the national level over the very matters that [ v60 p679 ] the parties were bargaining in connection with St. Louis office relocation. The Respondents argue that the Judge had to consider the total circumstances of the case in order to decide whether they failed to bargain at the local level. The Respondents note that in Buffalo OHA, the Authority held that completion of bargaining on a matter at the national level will have an effect on bargaining over those matters at the local level. The Respondents assert, in this connection, that it was within the Judge's discretion to take official notice of the national level negotiations.
The Respondents distinguish the cases relied on by the General Counsel in arguing for a nationwide posting. The Respondents maintain that where nationwide issues are not involved, but only local matters, a nationwide posting is not warranted. In this regard, the Respondents state that "more than a region[-]wide posting would not be equitable since the issue was a local hearing office move rather than a national initiative." Id. at 5.
2. Respondents' Opposition to Charging Party's Exception
The Respondents assert that the Judge found that entry security was an issue in national negotiations and that Article 23 was in effect at the time of the bargaining in this case. The Respondents maintain, therefore, that security issues were covered by the collective bargaining agreement. Specifically, the Respondents argue that "the subject matter of the proposals offered by the [Charging Party] in St. Louis were so inseparably bound up with the issues discussed and explored at [n]ational level bargaining on security, that the national level bargaining foreclosed further bargaining over the matter." Respondent's Opposition to the Charging Party's Exceptions at 3.
IV. Analysis and Conclusions
A. The Judge Erred by Failing to Find a Violation of § 7116(a)(1) and (5) for Refusing to Respond to an Information Request
Under § 7114(b)(4) of the Statute, an agency is required to respond to an information request by a union, even if the response is that the information does not exist. See, e.g., Naval Supply Center, 26 FLRA at 326-27. A timely reply to a union's request for information under § 7114(b)(4) is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining. United States Dep't of Justice, Office of Justice Programs, 45 FLRA 1022, 1026-27 (1992). The Authority has consistently held that a failure to respond to such an information request is an independent violation of § 7116(a)(1) and (5) of the Statute. Dep't of Health and Human Services, SSA, New York Region, New York, N.Y., 52 FLRA 1133, 1149-50 (1997); Customs Service, 26 FLRA at 326-27.
The complaint in Case No. DE-CA-02-0657 alleges that the Respondents violated § 7116(a)(1) and (5) by failing to respond to the Union's requests for the security surveys and crime assessments. See G.C. Ex. 1(i) at 3-4. Moreover, counsel for the General Counsel raised this issue in her opening statement to the Judge, Tr. at 14-15, and litigated it at the hearing, see, e.g., Tr. at 105-06. Finally, counsel for the General Counsel addressed this issue in her brief to the Judge. See G.C.'s Post-Hearing Brief at 36-37. The Judge specifically found that the Respondents did not reply to the Union's February 11 and August 2 requests for the security surveys and crime assessments. [n5] Judge's Decision at 19-20.
In sum, the record demonstrates that the General Counsel alleged and litigated the issue of whether the Respondents violated the Statute by failing to respond to the Union's information requests and the Judge specifically found that the Respondents failed to reply to those requests. Consequently, the Judge erred in failing to find that the Respondents committed the alleged violation.
Accordingly, we find that the Respondents independently violated § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's requests for the security surveys and crime assessments and that the order must be revised accordingly.
B. The Judge Did Not Err in Finding No Violation with Respect to Matters Covered by the Facilities and Services Article
The General Counsel excepts to the Judge's finding that the Respondents did not violate the Statute by failing to bargain over matters contained in the Facilities and Services article.
We note first of all that the General Counsel mistakenly relies on § 2429.5 of the Authority's Regulations in support of the exception. That section of the Regulations applies to issues raised before the Authority [ v60 p680 ] that the Authority will not consider. Consequently, the Judge did not violate § 2429.5 by considering the Respondents' covered-by defense.
On the merits of the General Counsel's exception, we note the substance of that exception:
Exception II: To the ALJ's factual and legal conclusions regarding an issue that was not before him, namely, the parties' Facilities and Services article in the collective bargaining agreement which was before the Federal Service Impasses Panel and therefore never contemplated to be within the parties' bargaining over the relocation of the St. Louis Office of Hearings and Appeals.
G.C.'s Exceptions at 2. As plainly worded, the exception concerns the Judge's consideration of the Facilities and Services article as imposed by the Panel. This is consistent with how the exception is argued by the General Counsel. See id. at 16 ("[t]he FSIP [d]ecision is . . . not within the scope of the complaint"); 17 ("the General Counsel never alleged, let alone fully litigated, the FSIP [d]ecision"); 18 ("the consolidated complaint never included the `Facilities and Services article").
Insofar as the General Counsel's exception is construed as claiming that the complaint did not include an alleged violation based on failure to bargain over the matters the Judge found were covered by the Facilities and Services article, the argument is unpersuasive. In this regard, the complaint is clearly broad enough to include the allegations that the Judge resolved and implicitly found encompassed in the complaint. See G.C. Ex. 1(e). In addition, these allegations were specifically made in the charge leading to the complaint. See G.C. Ex. 1(b).
The Respondents relied on the Facilities and Services article in claiming that they did not violate the Statute by failing to bargain over private office furnishings. In fact, the Respondents specifically raised the claim that these matters were covered by the Facilities and Services article before the Judge in its prehearing disclosure. See G.C. Ex. 1(p). The Judge found that the Respondents did not violate the Statute by failing to bargain over private office furnishings, parking, office space, and hearing room space because these matters were covered by the Facilities and Services article resolved by the Panel in its October 24, 2002, Decision and Order. Thus, the exception concerns the Judge's consideration of the Respondents' "covered-by" defense. As such, and as a defense would not be alleged in the complaint in any event, "the fully and fairly litigated" standard does not apply and the General Counsel's argument in this regard is also unpersuasive.
In these circumstances, the Judge did not err by considering the Facilities and Services article and finding that the Respondents did not violate the Statute with respect to matters contained in that article. [n6] See United States Dep't of the Air Force, Hqs., 96th Air Base Wing, Eglin AFB, Fla., 58 FLRA 626, 628 (2003), citing United States Dep't of Labor, Washington, D.C., 51 FLRA 462, 467 (1995) ("[t]he test of full and fair litigation is `whether the respondent knew what conduct was at issue and had a fair opportunity to present a defense.'") (Emphasis added).
C. The Issue of Whether the Respondents Violated the Statute by Failing to Bargain over Office Security Must Be Remanded
The Judge found that the Respondents did not violate the Statute by failing to bargain over the matter of office entry security because that matter was covered by Article 23 of the parties' national collective bargaining agreement. [n7] The Charging Party excepts to that finding.
A subject matter for negotiation is covered by a collective bargaining agreement if the matter is expressly contained in the agreement. See United States Dep't of Health and Human Services, Soc. Sec. Admin., Baltimore, Md., 47 FLRA 1004, 1018 (1993) (SSA I). If the agreement does not expressly contain the matter, then the Authority will determine whether the subject is inseparably bound up with, and thus plainly an aspect of, a subject covered by the agreement. Id. Consideration of the parties' bargaining history is an "integral component" of determining whether the matter is inseparably bound up with, and thus plainly an aspect of, the a subject covered by the agreement. United States Customs Serv., Customs Mgt. Ctr., Miami, Fla., 56 FLRA 809, 814 (2000). Moreover, in unfair labor [ v60 p681 ] practice cases which turn on the meaning of the parties' collective bargaining agreement, the Authority has held that, where a judge's interpretation of the meaning of the parties' agreement is challenged, it will determine whether the judge's interpretation is supported by the record and by the standards and principles applied by arbitrators and the Federal courts. IRS, Washington, D.C., 47 FLRA 1091, 1110-11 (1993) (IRS).
In sum, the SSA I "covered by" defense is available to a party claiming that it is not obligated to bargain because it has already bargained over the subject at issue. The IRS doctrine applies when a party "relies on a contract provision specifically concerning bargaining (such as a reopener or zipper clause)" that relates to the parties' bargaining obligations. See SSA, Region VII, Kansas City, Missouri, 55 FLRA 536, 538 (1999) (SSA III). The Authority has held that, in appropriate circumstances, both an SSA I and an IRS analysis may apply in the same case.
In this case, the Charging Party challenges the Judge's interpretation of Article 23 of the parties' agreement as covering the security matters being bargained at the local level and, thus, as permitting the Respondent to refuse to bargain on those matters at that level. Thus, resolution of the issue of whether bargaining on security matters is "covered by" the parties' agreement under SSA I depends on an analysis, under IRS, of whether the Judge properly interpreted the parties' bargaining obligations under that agreement.
Article 23 provides, generally, that a Health and Safety Labor-Management Committee will be established to provide recommendations for measures to improve health and safety within OHA and the first subject for consideration by the committee will be office entry security. More particularly, Article 23 provides that: (1) Article 23 will apply prospectively to hearing office moves for which an initial Occupancy Agreement has been signed after the agreement is in effect; (2) the first subject for consideration by the Health and Safety Labor-Management Committee will be office entry security; and (3) establishment of the committee does not constitute a waiver of the Union's right to bargain, in particular, its right, under Article 2, Section 4, to bargain over the impact and implementation of proposed changes that affect only one hearing office. [n8]
It is not clear from the terms of Article 23 what or whether particular entry security matters were being preserved for discussion and resolution at the national level. While Article 23, Section 4.E. provides that establishment of the committee does not waive the Union's statutory right to bargain, it is not clear that, by agreeing to that section, the Respondents were foregoing the right to claim that particular matters covered by Article 23 were preserved for discussion and resolution at the national level. Moreover, testimony by the parties' witnesses was conflicting as to whether bargaining on security matters was to take place only at the national level. See Tr. 358-65, 375-83, and 435-39.
In this regard, Section 4.E. of Article 23 does not directly, or indirectly, address the question of whether the Respondents are permitted to raise a "covered by" defense to requested bargaining at the local level. Thus, Section 4.E. could be construed as either: (1) providing for local bargaining over matters within the purview of the health and safety committee and exempting that bargaining from a "covered by" defense; or (2) providing that although the establishment of the committee does not in and of itself affect bargaining obligations, other matters, including a "covered by defense," could affect such bargaining. Consequently, because the terms of Article 23 are not sufficiently clear for us to resolve their meaning, we are unable to determine the effect of Article 23 on the bargaining obligations in this case.
Since we are unable to determine, consistent with the standard articulated in IRS, whether Article 23 precludes bargaining at the local level over the security matters at issue in this case, we remand to the Chief Administrative Law Judge the issue of whether Article 23 and Article 2, Section 4(D), permit bargaining over security matters at the local level. See, e.g., SSA, Baltimore, Md., 55 FLRA 246 (1999); United States Air Force Academy, Colorado Springs, Colo., 50 FLRA 498 (1995).
D. The Scope of the Posting Should Be Nationwide
In determining the scope of a posting requirement, the Authority considers the two purposes served by the posting of a notice. United States Dep't of Justice, Fed. Bu. of Prisons, Office of Internal Affairs, Wash., D.C., 55 FLRA 388, 394 (1999) (Office of Internal Affairs); United States Dep't of Justice, Office of the Inspector General, Wash., D.C., 47 FLRA 1254, 1263-64 (1993) (OIG). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. Second, in many cases the posting is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. Office of Internal Affairs, [ v60 p682 ] 55 FLRA at 394-95. Moreover, to further these purposes, the Authority has determined that there are circumstances where it is appropriate to require that notices be posted in areas other than the particular locations where the violation occurred. Id. at 395. See also United States Dep't of the Treasury, IRS, 56 FLRA 906, 913-14 (2000) (IRS).
In particular, the Authority has ordered a broad posting "where the violation involved `an issue of import' to members of the unit who do not work at the site where the violations occurred." Office of Internal Affairs, 55 FLRA at 395 (quoting OIG, 47 FLRA at 1263). Such a broad posting has been required where the respondent refused to bargain over a matter based on an article in the parties' national agreement and the refusal to bargain was "established" by the respondent's national labor relations office. IRS, 56 FLRA at 913.
In this case, the complaint alleged that the national level Respondent was involved in the alleged violations of the Statute. Moreover, evidence in the record, particularly testimony of officials at the national level, demonstrates that the response of Respondents' management at the regional and local level, especially with respect to the information request for the security surveys and crime assessments originated in discussions at the national level of the Respondents. See, e.g., Tr. 392-93, 408-10. Clearly, the Respondents' position on the disclosability of the security surveys and crime assessments reflects its policy with regard to these documents. The Respondents have demonstrated, through their response to the information request in this case, that they will not disclose security surveys and crime assessments, if a particularized need is established for those documents in connection with bargaining concerning security matters at any local facility. As such, the disclosability of those documents is an "issue of import" for all employees in the Charging Party's nationwide unit. See id.
In these circumstances, a posting confined to the region, as ordered by the Judge, would not effectuate the purposes served by the posting of the notice; nor would officials at the regional level be the appropriate officials to sign the notice. Accordingly, we direct the notice in this case to be posted throughout the unit of exclusive recognition represented by the Charging Party and to be signed by the head of the Social Security Administration.
V. Order
Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Baltimore, Maryland, the Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri, and St. Louis, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to reply to information requests from the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
(b) Failing and refusing to furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.
(c) Refusing to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL-CIO, on the office floor plan for the OHA office at 200 North Broadway.
(d) Refusing to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL-CIO, over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.
(e) Implementing changes in conditions of employment of bargaining unit employees prior to completion of bargaining.
(f) Refusing to provide the Association of Administrative Law Judges, IFPTE, AFL-CIO, information appropriately requested under § 7114(b)(4) of the Statute.
(g) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Reply in a timely manner to requests for information made by the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and [ v60 p683 ] proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
(b) Furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.
(c) Upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith on the floor plan for the OHA office at 200 North Broadway and implement all negotiated changes.
(d) Upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.
(e) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator, and shall be posted and maintained for 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 ensure that such Notices are not altered, defaced, or covered by any other material.
(f) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
IT IS FURTHER ORDERED that the portion of the complaint alleging that the Respondents violated § 7116(a)(1) and (5) of the Statute by failing and refusing to bargain over security matters at the local level be remanded to the Chief Administrative Law Judge for further processing consistent with this decision.
IT IS ALSO ORDERED that the remaining allegations of the complaint be, and they hereby are, dismissed.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Social Security Administration, Baltimore, Maryland, the Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri, and St. Louis, Missouri violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.
We hereby notify employees that:
WE WILL NOT fail and refuse to reply to information requests from the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
WE WILL NOT fail and refuse to furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.
WE WILL NOT refuse to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL- CIO, on the office floor plan for the OHA office at 200 North Broadway.
WE WILL NOT refuse to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL- CIO, over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.
WE WILL NOT implement changes in conditions of employment of bargaining unit employees prior to completion of bargaining.
WE WILL NOT refuse to provide the Association of Administrative Law Judges, IFPTE, AFL-CIO, information appropriately requested under § 7114(b)(4) of the Statute.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. [ v60 p684 ]
WE WILL reply in a timely manner to requests for information made by the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
WE WILL furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.
WE WILL, upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith on the floor plan for the OHA office at 200 North Broadway and implement all negotiated changes.
WE WILL, upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.
_______________________ (Activity)
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, Denver Regional Office, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581 and whose telephone number is (303) 844-5226.
APPENDIX
1. Article 23 of the parties' collective bargaining agreement provides, in relevant part, as follow:
ARTICLE 23
HEALTH AND SAFETY
Section 1
. . . .
C. The Agency and the [Union] further agree to cooperate in a continuing effort to eliminate and/or reduce security concerns and otherwise enhance the personal safety of Judges in SSA/OHA hearing offices, satellite offices, and remote site locations.
Section 2
. . . .
D. The Agency will comply with the Physical Protection and Building Security (Section E) provisions contained in the Space Allocation Standard for OHA Field Offices. It is the intent of the parties that Section 2(D) of this Health and Safety Article will apply prospectively to hearing office moves for which an initial Occupancy Agreement (OA) is signed after the date the National Agreement is in effect. This article is subject to the grievance procedure.
Section 4
A. Pursuant to this agreement, there shall be formed a Health and Safety Labor Management Committee. The Committee shall meet to exchange information, study, discuss and provide recommendations for improving health and safety measures within OHA. Entry security is the first health and safety issue the Committee will address.
. . . .
E. Establishment of this committee does not constitute a waiver of any of the [Union's] statutory rights to information, consultation, or negotiations. The activities of the H & S LMC will not replace the OHA's responsibility to provide appropriate notice and the opportunity to bargain over impact and implementation under Article 2, Mid[-]Contract Negotiations of this agreement.
Respondents' Exhibit (Res. Ex.) 2, pp. 105-07.
2. Article 2 of the parties' collective bargaining agreement provides, in relevant part, as follows: [ v60 p685 ]
ARTICLE 2
MID[-]CONTRACT NEGOTIATIONS
. . . .
Section 4
A. The Parties agree that proposed changes that apply on a nationwide or multi-regional basis shall be negotiated at the OHA Central Office level.
B. Proposed changes which shall be implemented in hearing offices in more than one (1) region made pursuant to a national or multi-regional initiative that require variation in the changes to meet the needs of each individual hearing office shall be negotiated at the regional office level in each affected region.
C. Proposed changes that apply at more than one (1) hearing office within a region shall be negotiated at the regional office level.
D. Proposed changes that apply to one (1) hearing office shall be negotiated at that hearing office level.
. . . .
G. Both Parties agree that officials of SSA/OHA and the [Union] at levels lower than the national level do not have authority to negotiate agreements that conflict with this national agreement.
Res. Ex. 2, pp. 6-7.
File 1: Authority's Decision in 60
FLRA No.
132
File 2: ALJ's Decision
Footnote # 1 for 60 FLRA No. 132 - Authority's Decision
The Judge who conducted the hearing in this case is no longer with the Authority.
Footnote # 2 for 60 FLRA No. 132 - Authority's Decision
The Facilities and Services article covered such matters as: (1) "space allocation for offices, . . . size of ALJ offices and hearing rooms;" (2) "equipment and furnishings for ALJ offices and hearing rooms;" (3) "whether ALJs should be permitted to have personally-owned furnishings in their offices;" (4) "locks for office doors;" and (5) "free parking for ALJs." Judge's Decision at 3 (citing G.C. Ex. 32 at 4).
Footnote # 3 for 60 FLRA No. 132 - Authority's Decision
There is no dispute concerning the Judge's conclusion that the Respondents violated § 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith over: (1) the floor plan of the new location; and (2) reservation of parking slots provided by the lease for rental by the ALJs.
Footnote # 4 for 60 FLRA No. 132 - Authority's Decision
No exceptions were filed to the Judge's findings and conclusions in this regard. As no exceptions were filed, we adopt these findings and conclusions without precedential significance pursuant to § 2423.41 of the Authority's Regulations. See, e.g., United States Dep't of the Air Force, Seymour Johnson AFB, 57 FLRA 884, 884 n.2 (2002).
Footnote # 5 for 60 FLRA No. 132 - Authority's Decision
The Judge found that the Respondents replied on November 28, 2001, to the Union's first request for the security surveys and crime assessments by informing the Union that such information did not exist. However, upon learning from the FPS employee who prepared the survey and assessment that those documents had been submitted to the Respondents at the end of January 2002, the Union requested the information once again on February 11, and renewed the request on August 2. The Judge found that the Respondents did not reply to these requests.
Footnote # 6 for 60 FLRA No. 132 - Authority's Decision
Chairman Cabaniss disagrees with this conclusion. As the General Counsel states, matters covered by the Facilities and Services article were not a part of the complaint, and the record demonstrates that such matters were not disputed before the Judge. If those matters were not alleged or litigated as violations, the fact that the Respondents presented a defense thereto is irrelevant. Chairman Cabaniss, therefore, would vacate the portion of the Judge's decision finding that the Respondents did not violate the Statute by failing to bargain over matters covered by the Facilities and Services article.
Footnote # 7 for 60 FLRA No. 132 - Authority's Decision
With respect to the Charging Party's argument that the issue has not been properly raised, the claim that security matters are covered by Article 23 has consistently been a part of the Respondents' position in this case. See, e.g., G.C. Ex. 15. Moreover, the General Counsel and the Charging Party litigated the effect of Article 23 before the Judge without any objection.
Footnote # 8 for 60 FLRA No. 132 - Authority's Decision
Article 2, Section 4, of the parties' collective bargaining agreement prescribes the parties' bargaining obligations with respect to changes in conditions of employment affecting more than one region, more than one hearing office within a region, and only one hearing office.