Department of Health and Human Services, Social Security Administration (Respondent) and American Federation of Government Employees, Local 1346, AFL-CIO (Charging Party) 



[ v06 p202 ]
06:0202(33)CA
The decision of the Authority follows:


 6 FLRA No. 33
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, /1/ SOCIAL SECURITY
 ADMINISTRATION
 Respondent
 
 and
 
 LOCAL 1346, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-330
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS;  ACCOMPANYING EXHIBITS;  AND BRIEFS
 SUBMITTED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL COUNSEL,
 THE AUTHORITY FINDS:
 
    ON JULY 21, 1978, THE CHARGING PARTY AND THE RESPONDENT'S MILWAUKEE
 NORTH DISTRICT OFFICE (THE ACTIVITY) ENTERED INTO A COLLECTIVE
 BARGAINING AGREEMENT OF 3 YEARS' DURATION WHICH CONTAINED A PROVISION
 ALLOWING EITHER PARTY TO REOPEN THE AGREEMENT DURING THE 60-90 DAY
 PERIOD PRIOR TO THE 18 MONTH MID-POINT THEREOF FOR THE PURPOSE OF
 RENEGOTIATING UP TO ONE-THIRD OF THE ARTICLES IN THAT AGREEMENT.  ON
 AUGUST 30, 1979, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO (AFGE) WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A
 CONSOLIDATED NATIONWIDE UNIT CONSISTING OF 211 PREVIOUSLY SEPARATE UNITS
 WITHIN THE SOCIAL SECURITY ADMINISTRATION, INCLUDING THE BARGAINING UNIT
 (REPRESENTED BY THE CHARGING PARTY) AT THE ACTIVITY COVERED BY THE
 AGREEMENT REFERRED TO ABOVE.  THEREAFTER, WHILE NEGOTIATIONS AT THE
 NATIONAL LEVEL WERE IN PROGRESS, THE CHARGING PARTY REQUESTED BARGAINING
 WITH THE ACTIVITY PURSUANT TO THE TERMS OF THE REOPENER CONTAINED IN THE
 LOCAL AGREEMENT.  THE ACTIVITY REFUSED, CITING THE NATIONWIDE
 CONSOLIDATION.  SUBSEQUENT REQUESTS BY THE CHARGING PARTY FOR LOCAL
 BARGAINING UNDER THE REOPENER WERE ALSO REJECTED BY THE ACTIVITY
 CONSISTENT WITH HIGHER AGENCY INSTRUCTIONS THAT THERE WOULD BE NO
 BARGAINING BELOW THE NATIONAL LEVEL.
 
    THE CHARGING PARTY AND GENERAL COUNSEL CONTEND THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY FAILING AND
 REFUSING TO ENTER INTO NEGOTIATIONS AT THE LOCAL LEVEL UNDER THE TERMS
 OF THE REOPENER.  THEY RELY UPON SECTION 2422.2(H)(8) OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2422.2(H)(8)) WHICH REQUIRES THAT TERMS AND
 CONDITIONS OF EXISTING AGREEMENTS WITH RESPECT TO UNITS THAT HAVE BECOME
 CONSOLIDATED "SHALL REMAIN IN EFFECT," UNLESS OTHERWISE AGREED BY THE
 PARTIES, "UNTIL A NEW AGREEMENT COVERING THE CONSOLIDATED UNIT BECOMES
 EFFECTIVE." THEY ARGUE THAT THE REOPENER CLAUSE EMBODIED IN THE LOCAL
 AGREEMENT CONSTITUTES A TERM AND CONDITION THAT, ABSENT AGREEMENT TO THE
 CONTRARY, MANAGEMENT WAS REQUIRED TO HONOR.
 
    THE RESPONDENT, ON THE OTHER HAND, CONTENDS THAT THE DUTY TO BARGAIN
 FOLLOWING AFGE'S CERTIFICATION AS EXCLUSIVE REPRESENTATIVE FOR THE
 NATIONWIDE CONSOLIDATED UNIT EXISTS AT THE NEW LEVEL OF RECOGNITION AND
 NO LONGER AT THE LOCAL LEVEL, AND THAT WHILE THE TERMS AND CONDITIONS OF
 LOCAL AGREEMENTS CONTINUE (UNLESS OTHERWISE MUTUALLY AGREED) UNTIL
 SUPERSEDED BY AN AGREEMENT NEGOTIATED BY THE PARTIES FOR THE
 CONSOLIDATED UNIT, THERE IS NO OBLIGATION ON LOCAL MANAGEMENT TO
 NEGOTIATE A MODIFIED LOCAL AGREEMENT.
 
    THUS, THE NARROW QUESTION PRESENTED HEREIN IS WHETHER, FOLLOWING THE
 CERTIFICATION OF AFGE FOR A NATIONWIDE CONSOLIDATED UNIT, THERE REMAINED
 A DUTY TO BARGAIN NEW CONDITIONS OF EMPLOYMENT AT THE LOCAL LEVEL
 PURSUANT TO THE REOPENER CLAUSE CONTAINED IN THE LOCAL AGREEMENT.  IN
 AGREEMENT WITH THE RESPONDENT, THE AUTHORITY CONCLUDES THAT THIS
 QUESTION MUST BE ANSWERED IN THE NEGATIVE.  WITH REGARD TO THE DUTY TO
 BARGAIN, SECTION 7103(A)(12) OF THE STATUTE DEFINES "COLLECTIVE
 BARGAINING" AS:
 
    . . . THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE REPRESENTATIVE
 OF AN AGENCY AND THE
 
    EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT IN THE
 AGENCY TO MEET AT
 
    REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO
 REACH AGREEMENT WITH
 
    RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH EMPLOYEES. . .
 .
 
    FOLLOWING THE ISSUANCE OF AFGE'S CERTIFICATION FOR THE CONSOLIDATED
 UNIT, THE APPROPRIATE UNIT WAS ESTABLISHED AT THE NATIONAL LEVEL.  IT IS
 CLEAR, THEREFORE, THAT THE MUTUAL OBLIGATION TO BARGAIN AS ARTICULATED
 IN THE STATUTE EXISTS ONLY AT THAT LEVEL OF EXCLUSIVE RECOGNITION WITH
 RESPECT TO CONDITIONS OF EMPLOYMENT WHICH AFFECT ANY EMPLOYEES WITHIN
 THE UNIT;  A CONTRARY RESULT WOULD RENDER CONSOLIDATION MEANINGLESS.  IN
 OTHER WORDS, ONCE A LABOR ORGANIZATION IS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE FOR A CONSOLIDATED UNIT, AS HERE, A NEW BARGAINING
 OBLIGATION IS CREATED IN LIEU OF SUCH OBLIGATIONS WHICH PREVIOUSLY
 EXISTED REGARDING SMALLER UNITS NOW INCLUDED IN THE CONSOLIDATED UNIT.
 /2/ THE GENERAL COUNSEL'S BRIEF ACKNOWLEDGES THESE PRINCIPLES AND,
 INDEED, THE RESPONDENT AND AFGE ENGAGED IN NEGOTIATIONS WITH REGARD TO
 THE CONSOLIDATED UNIT FOLLOWING AFGE'S CERTIFICATION AS THE EXCLUSIVE
 REPRESENTATIVE OF THAT UNIT.
 
    NEVERTHELESS, THE GENERAL COUNSEL AND THE CHARGING PARTY CONTEND THAT
 REOPENER NEGOTIATIONS ARE MANDATED BY SECTION 2422.2(H)(8) OF THE
 AUTHORITY'S RULES AND REGULATIONS.  HOWEVER, THAT SECTION IS INTENDED TO
 PROVIDE A METHOD OF STABILIZING THE PARTIES' RELATIONSHIP DURING THE
 PERIOD BETWEEN THE ISSUANCE OF THE CERTIFICATION ON CONSOLIDATION OF
 UNITS AND THE NEGOTIATION OF AN AGREEMENT COVERING THE NEWLY
 CONSOLIDATED UNIT;  THUS, IT PROVIDES THAT, DURING SUCH A HIATUS PERIOD,
 TERMS AND CONDITIONS OF EXISTING AGREEMENTS MAY NOT BE CHANGED.  A
 REQUIREMENT THAT SUBSTANTIVE BARGAINING PURSUANT TO A REOPENER MUST TAKE
 PLACE WITH RESPECT TO A PORTION OF A NEWLY CONSOLIDATED UNIT WOULD BE
 ANTITHETICAL TO THE GOAL OF STABILITY AND TO THE PURPOSE OF
 CONSOLIDATION.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE
 RESPONDENT'S REFUSAL TO BARGAIN UNDER THE CIRCUMSTANCES OF THIS CASE DID
 NOT CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
 
                                   ORDER
 
    IT IS ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-330 BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 25, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AUTHORITY TAKES ADMINISTRATIVE NOTICE THAT AS A CONSEQUENCE
 OF THE ESTABLISHMENT OF THE DEPARTMENT OF EDUCATION, THE REMAINING
 PORTION OF THE OLD DEPARTMENT O