[ v08 p517 ]
08:0517(102)CA
The decision of the Authority follows:
8 FLRA No. 102
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Charging Party
Case No. 3-CA-128
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS.
NO TIMELY EXCEPTIONS WERE FILED TO THE JUDGE'S DECISION AND ORDER. /1/
PURSUANT TO PERMISSION GRANTED BY THE AUTHORITY, THE OFFICE OF PERSONNEL
MANAGEMENT FILED AN AMICUS CURIAE BRIEF.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AS
MODIFIED BELOW.
THE JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE BY INCREASING A PRODUCTION STANDARD FOR FOR CERTAIN
UNIT EMPLOYEES WITHOUT FIRST GIVING THE CHARGING PARTY AN OPPORTUNITY TO
NEGOTIATE THE PROCEDURES USED IN DEVELOPING SUCH STANDARD AND BY
REFUSING TO NEGOTIATE THE SUBSTANCE OF THE DECISION TO INCREASE THE
BASIC PERFORMANCE REQUIREMENTS FOR THESE EMPLOYEES. THE JUDGE FURTHER
FOUND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) BY
REFUSING TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
CHANGES IN THE BASIC PRODUCTION REQUIREMENTS. TO REMEDY THE UNFAIR
LABOR PRACTICES FOUND, THE JUDGE RECOMMENDED, INTER ALIA, THAT THE
RESPONDENT CEASE AND DESIST FROM CHANGING THE BASIC PERFORMANCE
REQUIREMENTS FOR CERTAIN UNIT EMPLOYEES WITHOUT BARGAINING ON THE
DECISION TO EFFECTUATE SUCH A CHANGE, RESCIND THE UNILATERALLY
IMPLEMENTED CHANGE IN THE BASIC PERFORMANCE REQUIREMENTS, AND BARGAIN ON
REQUEST WITH RESPECT TO ANY INTENDED CHANGES.
FOLLOWING THE ISSUANCE OF THE JUDGE'S DECISION AND ORDER, THE
AUTHORITY HELD THAT PROPOSALS TO ESTABLISH PARTICULAR CRITICAL ELEMENTS
AND PERFORMANCE STANDARDS DIRECTLY INTERFERE WITH THE EXERCISE OF
MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE, AND THEREFORE ARE NOT WITHIN THE
DUTY TO BARGAIN. SEE, E.G., NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980),
APPEAL DOCKETED, NO. 80-1895(D.C. CIR. AUG. 4, 1980). AS THE
ESTABLISHMENT OF PERFORMANCE STANDARDS HAS BEEN HELD TO BE OUTSIDE THE
DUTY TO BARGAIN, THE AUTHORITY CANNOT SUSTAIN THE JUDGE'S FINDING HEREIN
THAT THE RESPONDENT'S FAILURE TO NEGOTIATE WITH RESPECT TO ITS DECISION
TO CHANGE THE PRODUCTION STANDARD FOR CERTAIN OF ITS EMPLOYEES
CONSTITUTES A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
HOWEVER, THE AUTHORITY HAS ALSO STATED, IN ACCORDANCE WITH SECTION
7106(B)(2) AND (3) OF THE STATUTE, THAT THERE IS A DUTY TO BARGAIN
CONCERNING THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING
ITS RESERVED RIGHTS AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE THEREOF.
DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT,
3 FLRA 130(1980). THEREFORE, NOTING PARTICULARLY THE ABSENCE OF TIMELY
EXCEPTIONS, THE AUTHORITY ADOPTS THE JUDGE'S FINDING THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY REFUSING TO
BARGAIN REGARDING THE IMPLEMENTATION AND IMPACT OF THE CHANGES IN BASIC
PRODUCTION REQUIREMENTS FOR CERTAIN UNIT EMPLOYES.
CONSISTENT WITH THE FOREGOING FINDINGS, THE AUTHORITY SHALL MODIFY
THE JUDGE'S RECOMMENDED REMEDIAL ORDER SO AS TO REQUIRE THE RESPONDENT
TO CEASE AND DESIST FROM CHANGING BASIC PERFORMANCE REQUIREMENTS WITHOUT
AFFORDING THE CHARGING PARTY AN OPPORTUNITY TO EFFECTUATE SUCH A CHANGE.
MOREOVER, NOTING PARTICULARLY THE UNCONTROVERTED RECORD EVIDENCE THAT
THE RESPONDENT ELIMINATED THE CHANGED PRODUCTION STANDARD SHORTLY AFTER
IT WAS UNILATERALLY IMPLEMENTED, THE AUTHORITY FINDS IT UNNECESSARY TO
PASS UPON WHETHER A STATUS QUO ANTE REMEDY WOULD OTHERWISE HAVE BEEN
APPROPRIATE (AS URGED BY THE GENERAL COUNSEL) TO REMEDY THE UNFAIR LABOR
PRACTICE COMMITTED HEREIN.
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUE, THE
AUTHORITY HEREBY ORDERS THAT THE SOCIAL SECURITY ADMINISTRATION SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE BASIC PERFORMANCE REQUIREMENTS IN JOB CODE 1310-3
(RV) WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO, AND AFFORDING IT AN OPPORTUNITY TO
NEGOTIATE ABOUT THE PROCEDURES THAT MANAGEMENT WILL OBSERVE IN
IMPLEMENTING SUCH A CHANGE AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY SUCH A CHANGE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF 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) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1923, AFL-CIO, OF ANY INTENDED CHANGES IN THE BASIC PERFORMANCE
REQUIREMENTS IN JOB CODE 1310-3 (RV) AND, UPON REQUEST, NEGOTIATE
CONCERNING THE PROCEDURES FOR DEVELOPING AND IMPLEMENTING SUCH CHANGES
AND UPON THE IMPACT OF SUCH CHANGES ON ADVERSELY AFFECTED EMPLOYEES IN
THE BARGAINING UNIT.
(B) POST AT ITS FACILITIES AT THE SOCIAL SECURITY ADMINISTRATION
HEADQUARTERS, BALTIMORE, MARYLAND, COPIES OF THE ATTACHED NOTICE ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION, 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 CUSTOMARILY
ARE POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID 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 III, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE SECTION 7116(A)(1) AND (5) ALLEGATIONS
OF THE COMPLAINT PREDICATED ON THE RESPONDENT'S FAILURE TO NEGOTIATE
WITH RESPECT TO ITS DECISION TO CHANGE THE PRODUCTION STANDARD, WHICH
HAVE BEEN FOUND SUPRA NOT TO BE VIOLATIVE OF THE STATUTE, BE, AND THEY
HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CHANGE THE BASIC PERFORMANCE REQUIREMENTS IN JOB CODE
1310-3 (RV) WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO, AND AFFORDING IT AN
OPPORTUNITY TO NEGOTIATE ABOUT THE PROCEDURES THAT MANAGEMENT WILL
OBSERVE IN IMPLEMENTING SUCH A CHANGE AND CONCERNING APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH A CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1923, AFL-CIO, OF ANY INTENDED CHANGES IN THE BASIC PERFORMANCE
REQUIREMENTS IN JOB CODE 1310-3 (RV) AND, UPON REQUEST, NEGOTIATE
CONCERNING THE PROCEDURES FOR DEVELOPING AND IMPLEMENTING SUCH CHANGES
AND UPON THE IMPACT OF SUCH CHANGES ON ADVERSELY AFFECTED EMPLOYEES IN
THE BARGAINING UNIT.
(AGENCY OR ACTIVITY)
DATED:
BY: (SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF THIS 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, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS
IS 1111 18TH STREET, NW., WASHINGTON, D.C. 20036 AND WHOSE TELEPHONE
NUMBER IS (202) 653-8452.
------------------------ ALJ$ DECISION FOLLOWS: ---------------
LEE MINGLEDORFF, ESQUIRE
PETER ROBB, ESQUIRE
FOR THE GENERAL COUNSEL
DANIEL GREEN, ESQUIRE
JOHN BARRETT, ESQUIRE
FOR THE RESPONDENT
BEFORE: ELI NASH, JR.
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 INTERIM RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
XIV, PART 2411, ET SEQ.
PURSUANT TO A CHARGE FILED ON APRIL 9, 1979, A COMPLAINT AND NOTICE
OF HEARING WAS ISSUED ON OCTOBER 1, 1979 AND AMENDED ON NOVEMBER 27,
1979 ALLEGING THAT THE SOCIAL SECURITY ADMINISTRATION, U.S. DEPARTMENT
OF HEALTH, EDUCATION AND WELFARE, HEREIN REFERRED TO AS THE "RESPONDENT"
UNILATERALLY AND WITHOUT PRIOR NOTICE TO AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO, HEREIN REFERRED TO AS THE
"UNION", RAISED CERTAIN BASIC PRODUCTION REQUIREMENTS IN VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE STATUTE. RESPONDENT'S ANSWER DENIED
THAT IT HAD COMMITTED SUCH VIOLATION.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON DECEMBER 20, 1979, IN
BALTIMORE, MARYLAND. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS.
FINDING OF FACT
1. RESPONDENT AND THE UNION, WHICH IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES INVOLVED HEREIN, ARE PARTIES TO A
COLLECTIVE BARGAINING AGREEMENT COVERING ALL PERIODS MATERIAL HEREIN.
2. ON OR ABOUT MARCH 5, 1979, RESPONDENT'S CHIEF, RECEIVING AND
RECONCILIATION BRANCH, ROBERT BOROWY AND SUPERVISORS PATRICIA A. TAYLOR
AND LADELL GORDON, RECEIVED STATISTICAL ARRAYS OF EMPLOYEE'S PERFORMANCE
FOR THE PRECEDING MONTHS AND DECIDED TO INCREASE THE MINIMUM PERFORMANCE
REQUIREMENT IN ONE OF THE JOB CODES, JOB CODE 1310-3(RV) FROM 20 ITEMS
PER HOUR TO 30 ITEMS PER HOUR. MR. BOROWY WHO WAS TO BE OUT OF THE
OFFICE THE NEXT WEEK, DIRECTED MS. TAYLOR, WHO WOULD BE ACTING SECTION
CHIEF, TO "CONSULT" WITH THE UNION PRIOR TO IMPLEMENTING THE
AFOREMENTIONED INCREASES.
3. ON MARCH 12, 1979, MS. TAYLOR, IN HER CAPACITY AS ACTING CHIEF,
MET WITH JAMES SLEBZAK, SERGEANT-AT-ARMS OF THE UNION AND PRESENTED HIM
WITH A MEMORANDUM WHICH INFORMED HIM THAT, IN COMPLIANCE WITH ARTICLE
18, SECTION D /2/ OF THE PARTIES' GENERAL AGREEMENT, THAT TAYLOR WAS
CONSULTING HIM "CONCERNING THE CHANGES IN NUMERICAL STANDARDS FOR THE
CONVERSION EXCEPTION LISTING JOB." THE MEMORANDUM FURTHER STATED THAT,
(U)SING THE GUIDELINES STATED IN CHAPTER V, SSA GUIDE 4, SUPPLEMENT 1,
NEW MEDIANS WHICH WILL BE USED DURING MARCH, APRIL AND MAY HAVE NOW BEEN
ESTABLISHED" AND THAT "THE CHANGE IN THE REQUIREMENT ON CODE 1310-3
(RV)" WOULD BE FROM 20.0 ITEMS PER HOUR TO 30.0 ITEMS PER HOUR.
4. AFTER READING THE MEMORANDUM SLEBZAK WAS INFORMED BY TAYLOR THAT
THE CHANGES WOULD BE IMPLEMENTED ON THE FOLLOWING DAY MARCH 13. SLEBZAK
STATED THAT HE DID NOT AGREE WITH ANY CHANGES IN THE MINIMUM PRODUCTION
REQUIREMENT AND NOTED HIS DISAGREEMENT ON THE MEMORANDUM. SLEBZAK ALSO
STATED THAT THE PROPOSED INCREASE IN THE MINIMUM PRODUCTION REQUIREMENT
WAS AN ADVERSE ACTION BEING TAKEN AGAINST EMPLOYEES AND THAT UNDER THE
CIVIL SERVICE REFORM ACT, THE UNION HAD THE RIGHT TO NEGOTIATE ANY
CHANGE IN WORK POLICY, PRACTICE OR PROCEDURES. AT THIS TIME, SLEBZAK
REQUESTED BARGAINING ON THE ADVERSE IMPACT OF THE CHANGE ON EMPLOYEES.
ACCORDING TO SLEBZAK, HE FELT THAT INCREASING THE MINIMUM PRODUCTION
REQUIREMENT WOULD NOT ONLY AFFECT AN EMPLOYEE WHO MIGHT FALL BELOW THE
MINIMUM, BUT ALSO WOULD RESULT IN EMPLOYEES GETTING LOWER RATINGS FOR
THE SAME AMOUNT OF WORK. IN RESPONSE TO SLEBZAK'S REQUEST FOR
NEGOTIATIONS, TAYLOR ADVISED SLEBZAK THAT SHE WOULD DELAY ANNOUNCEMENT
OF THE INCREASE IN THE BASIC MINIMUM PRODUCTION REQUIREMENT SO THAT SHE
MIGHT CHECK WITH RESPONDENT'S LABOR RELATIONS OFFICE.
5. ON MARCH 21, TAYLOR AND SLEBZAK MET AGAIN. AT THAT TIME, SLEBZAK
WAS INFORMED THAT THE LABOR RELATIONS OFFICE HAD CONFIRMED TAYLOR'S
POSITION THAT THE CHANGE IN PERFORMANCE REQUIREMENTS WAS NOT A
NEGOTIABLE MATTER AND THEREFORE THE INCREASE WOULD BE IMPLEMENTED. /3/
6. IN RESPONSE TO THE MARCH 21 CONVERSATION, SLEBZAK SENT TAYLOR A
LETTER ON MARCH 22, SETTING FORTH THE UNION'S POSITION THAT THE PROPOSED
CHANGES IN NUMERICAL STANDARDS FOR CONVERSION EXCEPTION LISTINGS WAS A
NEGOTIABLE MATTER. SLEBZAK ALSO RESTATED HIS EARLIER POSITION THAT THE
INCREASE HAD AN ADVERSE IMPACT ON EMPLOYEES AND AGAIN REQUESTED THAT
RESPONDENT INITIATE THE PROCEDURES REQUIRED FOR NEGOTIATION UNDER
ARTICLE 2, SECTION C AND D OF THE PARTIES AGREEMENT, CONCERNING CHANGES
IN LAW, REGULATIONS AND DECISIONS OF OTHER AUTHORITIES WHICH MIGHT
NECESSITATE CHANGES IN PERSONNEL POLICIES, PRACTICES OR OTHER MATTERS
AFFECTING WORKING CONDITIONS AND UNION PARTICIPATION.
7. ON MARCH 30, TAYLOR CARRIED A MEMORANDUM TO SLEBZAK, IN RESPONSE
TO THE MARCH 22 MEMORANDUM FROM SLEBZAK, WHICH DENIED THAT THE CHANGES
IN NUMERICAL STANDARDS FOR CONVERSION EXCEPTION LISTINGS WAS NEGOTIABLE
AND INFORMED SLEBZK THAT IF, AT A LATER DATE, THE IMPACT OF INSTITUTING
NEW STANDARDS PROVED UNFAVORABLE FOR THE MAJORITY OF EMPLOYEES, SLEBZAK
MIGHT HAVE REASON FOR FURTHER "CONSULTATION" AT THAT TIME. THE
MEMORANDUM FURTHER STATED THAT TAYLOR HAD ISSUED THE NEW PRODUCTION
REQUIREMENT TO THE EMPLOYEES WORKING EXCEPTION LISTINGS. TAYLOR DID NOT
SENT PROPOSALS TO THE UNION PRESIDENT CONCERNING ARTICLE 2, SECTION C OF
THE PARTIES AGREEMENT AS SLEBZAK HAD EARLIER REQUESTED. THE STANDARDS
ANNOUNCED IN THE MARCH 30 LETTER WERE APPLIED RETROACTIVELY BY
SUPERVISORS IN THEIR APRIL INTERVIEWS WITH SUPERVISORS REGARDING THE
EMPLOYEES MARCH WORK PRODUCTION.
8. RESPONDENT AND THE UNION HAD, ON SEVERAL OCCASIONS, USED
PROCEDURES WHERE CHANGES IN THE QUANTITATIVE EMPLOYEE'S APPRAISAL WERE
IMPLEMENTED OR DISCUSSED. THE PAST PRACTICE HAD BEEN TO DISCUSS THE
CHANGE WITH THE UNION AND GIVE IT AN OPPORTUNITY TO REVIEW MANAGEMENT'S
RAW DATA, CHECK FOR CONFORMITY WITH CHAPTER V, SSA GUIDE 4, AND TO MAKE
COUNTERPROPOSALS. THE CHANGES IMPLEMENTED BY TAYLOR WERE THE FIRST
IMPLEMENTED STANDARDS WHICH HAD NOT BEEN AGREED TO BY THE UNION.
ANALYSIS AND CONCLUSIONS
IT IS WELL SETTLED THAT NOTWITHSTANDING THAT A PARTICULAR SUBJECT
MATTER IS NONNEGOTIABLE, AGENCY OR ACTIVITY MANAGEMENT IS REQUIRED TO
MEET AND CONFER ON PROCEDURES MANAGEMENT INTENDS TO USE IN IMPLEMENTING
ITS DECISION AND ON THE IMPACT OF SUCH DECISION ON ADVERSELY AFFECTED
EMPLOYEES. NEW MEXICO AIR NATIONAL GUARD, DEPARTMENT OF MILITARY
AFFAIRS, OFFICE OF THE ADJUTANT GENERAL, SANTA FE, NEW MEXICO, 4 A/SLMR
175, A/SLMR NO. 438(1974); DEPARTMENT OF AGRICULTURE AND OFFICE OF
INVESTIGATIONS, 5 A/SLMR 580, A/SLMR NO. 555(1975). IN ADDITION, IT WAS
ALSO CLEAR UNDER THE EXECUTIVE ORDER THAT WHILE MANAGEMENT RETAINED
RIGHTS UNDER SECTION 12(B), IT HAD AN OBLIGATION TO CONSULT AS TO THE
IMPACT OF CHANGES MADE IN THE AREA OF MANAGEMENT'S PEROGATIVE AND THAT
FAILURE TO DO SO ALSO VIOLATED THE ORDER. SEE DEPARTMENT OF
AGRICULTURE, SUPRA.
THE GENERAL COUNSEL CONTENDS THAT RESPONDENT'S OBLIGATION TO BARGAIN
IN THIS MATTER IS NOT LIMITED TO BARGAINING ON THE IMPLEMENTATION AND
IMPACT OF THE CHANGE BUT, THAT IT WAS OBLIGATED TO NEGOTIATE THE
SUBSTANCE OF ITS DECISION TO RAISE THE BASIC PERFORMANCE REQUIREMENTS
FOR CODING CLERKS. FURTHER, IT IS CONTENDED THAT RESPONDENT FAILED TO
MEET ITS OBLIGATION UNDER SECTION 7106(B)(2) OF THE STATUTE /4/ TO
NEGOTIATE ANY CHANGE IN THE PROCEDURES TO BE OBSERVED IN DECIDING
WHETHER OR NOT AND TO WHAT EXTENT BASIC PERFORMANCE REQUIREMENTS WOULD
BE RAISED.
STANDARDS OF PERFORMANCE PARTICULARLY WHERE THEY SERVE AS AN INDEX
FOR THE EVALUATION OF AN EMPLOYEE'S PERFORMANCE AND ELIGIBILITY FOR
ACTIONS REGARDING FROM QUALITY AWARDS FOR HIGH-LEVEL PERFORMANCE TO
REMOVAL FROM UNACCEPTABLE PERFORMANCE AREAS, ARE NEGOTIABLE. PATENT
OFFICE PROFESSIONAL ASSOCIATION AND U.S. PATENT OFFICE, WASHINGTON,
D.C., 74 FSIP AND 3 FLRA NO. 75A-13(1975). ALSO, SECTIONS 7102, 7103
AND 7114 OF THE STATUTE ESTABLISHED THAT AN AGENCY AND THE EXCLUSIVE
REPRESENTATIVE ARE REQUIRED TO MEET AT REASONABLE TIMES AND CONFER AND
BARGAIN IN A GOOD FAITH EFFORT TO REACH AGREEMENT WITH RESPECT TO THE
CONDITIONS OF EMPLOYMENT AFFECTING SUCH EMPLOYEES. ACCORDING TO SECTION
7103(A)(14) CONDITIONS OF EMPLOYMENT MEANS PERSONNEL POLICIES, PRACTICES
AND MATTERS AFFECTING WORKING CONDITIONS. THE CHANGE HEREIN INVOLVED AN
INCREASE IN A WORK MEASUREMENT CRITERION, A CRITERION DESIGNED TO BE
USED IN RATING THE JOB PERFORMANCE OF AFFECTED EMPLOYEES. THE INCREASE
IN THE PRODUCTION REQUIREMENT INVOLVED A CHANGE IN A CONDITION OF
EMPLOYMENT ABOUT WHICH RESPONDENT HAD AN OBLIGATION TO BARGAIN. UNITED
STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, CLEVELAND,
OHIO, A/SLMR NO. 972, WORK EVALUATION PROGRAM; NATIONAL LABOR RELATIONS
BOARD, 3 A/SLMR 88, A/SLMR NO. 246, CHANGE IN TIMES SCHEDULES.
THE RECORD CLEARLY SHOWS THAT THE UNION HAD NO OPPORTUNITY TO
NEGOTIATE THE PROCEDURES TO BE USED IN CHANGING THE BASIC PRODUCTION
REQUIREMENTS. I AGREE WITH THE GENERAL COUNSEL THAT RESPONDENT HAD A
GENERAL OBLIGATION, PRIOR TO THE DEVELOPMENT OF NEW STANDARDS, TO
NEGOTIATE THE METHODOLOGY, CRITERIA, OR THE PROCEDURES TO BE USED IN
DEVELOPING NEW PRODUCTION STANDARDS. MOREOVER, THE RECORD REVEALS THAT
SUCH WAS THE PRIOR PRACTICE OF THE PARTIES WHEN DEVELOPING SIMILAR
PRODUCTION STANDARDS. ACCORDINGLY, RESPONDENT'S DECISION TO INCREASE
PRODUCTION STANDARDS, WITHOUT FIRST GIVING THE UNION AN OPPORTUNITY TO
NEGOTIATE THE PROCEDURES AND ITS REFUSAL TO NEGOTIATE THE SUBSTANCE OF
ITS DECISION TO INCREASE THE BASIC PERFORMANCE REQUIREMENTS EACH
CONSTITUTED A REFUSAL TO BARGAIN WITH THE UNION IN VIOLATION OF SECTION
7116(A)(1) AND (5) OF THE ORDER.
WITH REGARD TO THE QUESTION OF WHETHER THE UNION WAS NOTIFIED AND
AFFORDED AN OPPORTUNITY TO BARGAIN OVER THE IMPLEMENTATION AND IMPACT OF
THE CHANGE. THE RECORD ESTABLISHED THAT UNION STEWARD SLEBZAK REQUESTED
IMPACT BARGAINING ON MARCH 12. SECTION 7106(B)(3) /5/ OF THE STATUTE
GIVES THE EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE
ARRANGEMENTS FOR BOTH ACTUAL AND POTENTIALLY ADVERSE AFFECTS PRIOR TO
CHANGES IN WORKING CONDITIONS OR WITH RESPECT TO IMPLEMENTATION AND
IMPACT ON EMPLOYEES. SLEBZAK'S REQUEST WAS CONTINUALLY DENIED AS
RESPONDENT MAINTAINED THAT IT HAD ONLY THE OBLIGATION TO ENGAGE IN
CONSULTATION WHICH IT FELT WAS SATISFIED BY TELLING SLEBZAK OF THE
CHANGES.
IN THIS MATTER, RESPONDENT CLEARLY EFFECTED A CHANGE OF THE BASIC
PRODUCTION REQUIREMENTS OF CODE 1310-3(RV) BY VIRTUE OF ITS MEMORANDUM
OF MARCH 12 WHICH IT SUBSEQUENTLY IMPLEMENTED ON APRIL 1, 1979. WHILE
RESPONDENT DELAYED IMPLEMENTING THE CHANGE FOR SEVERAL WEEKS AFTER ITS
ANNOUNCEMENT TO THE UNION, THAT DELAY WAS BASED NOT ON WILLINGNESS TO
BARGAIN ON ITS PART, BUT ON ITS SEEKING ADVICE REGARDING THE
"CONSULTATION" POSITION WITH ITS LABOR RELATIONS OFFICE. IT IS EQUALLY
CLEAR THAT THE MEETINGS BETWEEN SLEBZAK AND TAYLOR AND THE EXCHANGE OF
MEMORANDUM BETWEEN THE TWO DURING MARCH FALL SHORT OF CONSULTATION AS IS
REQUIRED BY THE STATUTE OR BY THE AGREEMENT BETWEEN THE PARTIES.
RESPONDENT CONTENDS, THAT REGARDING ONGOING PAST PRACTICES, ITS
OBLIGATION IS LIMITED TO "CONSULTATION" AS PROVIDED IN THE AGREEMENT AND
"IMPLEMENTATION AND IMPACT BARGAINING" AS DISTINGUISHED FROM
NEGOTIATIONS. HOWEVER, THERE CAN BE NO DISTINCTION ON NEGOTIABLE ISSUES
UNLESS THE OBLIGATION IS MUTUALLY LIMITED BY THE PARTIES. SEE REPORT
AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL, (JANUARY
1975), AT PP. 43-44; KESSLER TECHNICAL TRAINING CENTER, KESSLER AIR
FORCE BASE, MISSISSIPPI, FLRC NO. 74-84. WHILE THE WORDS "MEET AND
CONFER," "CONSULTATION" AND "NEGOTIATION" APPEAR IN THE AGREEMENT THERE
IS NO EXPRESS DEMARCATION BETWEEN THE TERMS. ALTHOUGH THERE IS SOME
EVIDENCE OF RECORD OF THE INTENTION OF THE PARTIES DURING NEGOTIATIONS
THERE IS NO CLEAR AND UNMISTAKABLE LANGUAGE WHICH WOULD CONSTITUTE A
WAIVER OF THE UNION'S RIGHT TO NEGOTIATE CONCERNING SECTION 18, D. NASA,
KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA, 2 A/SLMR NO. 1045.
SINCE THESE TERMS WERE NOT DIFFERENTIATED AND SINCE THEY WERE USED
INTERCHANGEABLY IN THE EARLY DAYS OF FEDERAL SECTOR BARGAINING, WHEN THE
AGREEMENTS IN QUESTION WERE NEGOTIATED, THEY ARE NOT NOW FOUND TO BE
LIMITING ON THE UNION. THEREFORE, RESPONDENT'S ARGUMENT MUST BE
REJECTED SINCE IT MAY NOT NOW SEEK TO CONFINE ITS OBLIGATION TO
CONSULTATION CONCERNING THE PRODUCTION REQUIREMENT CHANGES. /6/
FURTHERMORE, RESPONDENT'S ANNOUNCEMENT THAT IT WAS ENGAGED IN
CONSULTATION, IN NO WAY MEETS THE GOOD FAITH BARGAINING REQUIREMENTS OF
THE STATUTE. ANNOUNCING THE CHANGE AS A FAIT ACCOMPLI MADE IT
IMPOSSIBLE FOR THE PARTIES TO ENGAGE IN ANY MEANINGFUL DISCUSSION OR
NEGOTIATIONS AND RESPONDENT NEVER CHANGED THIS POSITION. GOOD FAITH
BARGAINING CAN SCARCELY BE CONDUCTED WITHIN THE FRAMEWORK OF A STATED
POSITION WHICH ASSERTS THAT AN EMPLOYER IS NOT OBLIGATED TO NEGOTIATE.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, CHICAGO DISTRICT
OFFICE, A/SLMR NO. 962, 8 A/SLMR 40. ACCORDINGLY, IT IS FOUND THAT
RESPONDENT BY REFUSING TO BARGAIN REGARDING THE IMPLEMENTATION AND
IMPACT OF THE CHANGES IN THE BASIC PRODUCTION REQUIREMENTS VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE. /7/
RECOMMENDATION
ON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS
RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
C.F.R. 2423.29(C): /8/
ORDER
PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND 5 C.F.R. SECTION
2423.28(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE SOCIAL SECURITY
ADMINISTRATION, U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE BASIC PERFORMANCE REQUIRMENTS IN JOB CODE 1310-3(RV)
FROM 20 ITEMS PER
HOUR TO 30 ITEMS PER HOUR OF EMPLOYEES REPRESENTED EXCLUSIVELY BY
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO, WITHOUT AFFORDING SUCH
REPRESENTATIVE THE
OPPORTUNITY TO BARGAIN, TO THE EXTENT CONSONANT WITH LAW AND
REGULATION, ON THE DECISION TO
EFFECTUATE SUCH A CHANGE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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 CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESCIND THE MEMORANDUM OF MARCH 12, 1979 PERTAINING TO CHANGES IN
THE BASIC PERFORMANCE
REQUIREMENTS OF JOB CODE 1310-3 (RV) RAISING THE REQUIREMENT TO 30
ITEMS PER HOUR AND RESTORE
THE BASIC PERFORMANCE REQUIREMENT OF 20 ITEMS PER HOUR WHICH WAS IN
IN EFFECT PRIOR TO APRIL
1, 1979.
(B) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1923, AFL-CIO OF ANY
INTENDED CHANGES IN BASIC PERFORMANCE REQUIREMENTS IN JOB CODE 1310-3
(RV).
(C) UPON REQUEST, BARGAIN WITH AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923,
AFL-CIO, WITH RESPECT TO ANY INTENDED CHANGES IN BASIC PERFORMANCE
REQUIREMENTS IN JOB CODE
1310-3 (RV)
(D) POST AT ITS FACILITIES AT THE PACA PRATT BUILDING, BALTIMORE,
MARYLAND, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(E) PURSUANT TO 5 C.F.R. SECTION 2423.29, NOTIFY THE REGIONAL
DIRECTOR, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN
TO COMPLY THEREWITH.
ELI NASH, JR.
ADMINSTRATIVE LAW JUDGE
DATED: MAY 9, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1191) WE HEREBY NOTIFY OUT
EMPLOYEES THAT:
WE WILL NOT CHANGE THE BASIC PERFORMANCE REQUIREMENT IN JOB CODE
1310-3(RV) OF EMPLOYEES REPRESENTED EXCLUSIVELY BY AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO, WITHOUT AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE MEMORANDUM OF MARCH 12, 1979 PERTAINING TO
CHANGES IN THE BASIC PRODUCTION REQUIREMENT OF JOB CODE 1310-3(RV)
RAISING THE REQUIREMENT TO 30 ITEMS PER HOUR AND RESTORE THE BASIC
PERFORMANCE REQUIREMENT OF 20 ITEMS PER HOUR WHICH WAS IN EFFECT PRIOR
TO APRIL 1, 1979.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES OF ANY
CHANGE IN THE BASIC PRODUCTION REQUIREMENT OF JOB CODE 1310-3(RV) AND,
UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
(AGENCY OR ACTIVITY)
DATED:
(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, FEDERAL LABOR RELATIONS AUTHORITY, 1730 K STREET,
NW., WASHINGTON, D.C. 20006.
--------------- FOOTNOTES: ---------------
/1/ THE RESPONDENT SUBMITTED EXCEPTIONS WHICH WERE DATED JUNE 11,
1980 AND RECEIVED BY THE AUTHORITY ON JUNE 16, 1980. SUCH EXCEPTIONS
HAVE BEEN OBJECTED TO BY THE CHARGING PARTY ON THE BASIS THAT THEY ARE
UNTIMELY. INASMUCH AS THE EXCEPTIONS WERE NOT FILED WITH THE AUTHORITY
WITHIN THIRTY DAYS (INCLUDING THE FIVE DAYS FOR MAILING PERMITTED
PURSUANT TO SECTION 2429.22 OF THE AUTHORITY'S RULES AND REGULATIONS)
FROM THE DATE OF THE JUDGE'S DECISION AND ORDER (MAY 9, 1980), AS IS
REQUIRED BY SECTION 2423.26(C) OF THE AUTHORITY'S RULES AND REGULATIONS,
SUCH EXCEPTIONS ARE UNTIMELY AND HAVE NOT BEEN CONSIDERED BY THE
AUTHORITY IN RENDERING ITS DECISION HEREIN.
/2/ ARTICLE 18, SECTION D READS, IN PERTINENT PART:
. . . THE PARTIES AGREE THAT ANY EVALUATION AND APPRAISAL SYSTEM USED
BY THE ADMINISTRATION BE CARRIED OUT IN A UNIFORM MANNER. THE FOLLOWING
ARE THE PROVISIONS OF THIS SYSTEM.
1. NUMERICAL STANDARDS IF ANY WILL BE SET IN CONFORMANCE WITH
CHAPTER V, SSA GUIDE 4-1, SUPPLEMENT 1, "ESTABLISHING MEDIANS FOR
QUANTITATIVE EMPLOYEE APPRAISAL ITEMS." ANY PROPOSED CHANGES IN EXISTING
STANDARDS OR THE PROPOSED CREATION OR ELIMINATION OF ANY STANDARDS SHALL
BE THE SUBJECT OF CONSULTATION BETWEEN THE PARTIES.
2. GUIDELINES ON THE APPLICATION OF RATING FACTORS AND THE OVERALL
APPROACH TO BE UTILIZED IN RATING EMPLOYEES SHALL BE PREPARED BY THE
ADMINISTRATION FOR USE THROUGHOUT THE UNIT. THE ADMINISTRATION WILL
MEET AND CONFER WITH THE UNION IN DESIGNING THESE GUIDELINES . . .
/3/ TAYLOR TESTIFIED THAT SHE WAS AWARE OF MANAGEMENT'S OBLIGATION TO
NEGOTIATE MATTERS CONCERNING IMPACT AND IMPLEMENTATION. HOWEVER, SHE
DID NOT INFORM SLEBZAK THAT HER NONNEGOTIABILITY POSITION DID NOT APPLY
TO IMPACT AND IMPLEMENTATION BUY ONLY TO THE SUBSTANCE OF THE CHANGE.
/4/ SECTION 7106(B)(2) READS:
NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; . . .
/5/ SECTION 7106(B)(3) READS IN PERTINENT PART:
. . . (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED
BY THE EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY ANY MANAGEMENT OFFICIALS.
/6/ NOR DOES RESPONDENT'S ARGUMENT THAT UNDER SECTION 7135(A)(1) OF
TITLE VII OF THE CIVIL SERVICE REFORM ACT CONTINUE THE RIGHTS AND
OBLIGATIONS OF THE PARTIES "REMAIN UNCHANGED," HAVE MERIT. THIS
ARGUMENT IS MERELY AN EXTENSION OF ITS CONTENTION THAT IT WAS SUBJECT
ONLY TO "CONSULTATION" AS PROVIDED BY THE AGREEMENT AND "IMPLEMENTATION
AND IMPACT" BARGAINING AND MUST BE REJECTED FOR THE REASONS STATED
ABOVE.
/7/ IT IS UNNECESSARY TO FIND THE MEASURE OF THE IMPACT IN THIS
MATTER AND RESPONDENT'S CONTENTION THAT THE CONDUCT HEREIN WOULD
CONSTITUTE A DE MINIMUS IMPACT ON EMPLOYEES IS REJECTED. THE
LEGISLATIVE HISTORY OF THE STATUTE MAKES IT CLEAR THAT IN "ADVERSE
EFFECT" NEGOTIATIONS, THE FULL EXPECTATION IS THAT "WHERE THE ADVERSE
EFFECTS ARE "DE MINIMUS NEGOTIATIONS WILL OCCUR BUT THAT BOTH PARTIES
WILL SEE THAT THEY PROCEED WITH APPROPRIATE DISPATCH. SEE, 124 CONG.
REC. H 13607 (DAILY ED. OCTOBER 14, 1978).
/8/ THE GENERAL COUNSEL'S UNOPPOSED MOTION TO CORRECT THE TRANSCRIPT
AND PLACE EXHIBITS 4 AND 6 IN A REJECTED EXHIBIT FILE IS GRANTED.