09:0499(58)CA - Great Lakes Program Service Center, SSA, HHS, Chicago, IL and Local 1395, AFGE -- 1982 FLRAdec CA



[ v09 p499 ]
09:0499(58)CA
The decision of the Authority follows:


 9 FLRA No. 58
 
 GREAT LAKES PROGRAM SERVICE CENTER,
 SOCIAL SECURITY ADMINISTRATION,
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, CHICAGO, ILLINOIS
 Respondent /1/
 
 and
 
 LOCAL 1395, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-91
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTION.  THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
 JUDGE'S DECISION AND A SUPPORTING BRIEF.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
    THE JUDGE CONCLUDED THAT THE RESPONDENT HAD UNILATERALLY BREACHED A
 MEMORANDUM OF UNDERSTANDING (THE AGREEMENT) NEGOTIATED BETWEEN AN
 AUTHORIZED REPRESENTATIVE OF THE RESPONDENT AND THE CHARGING PARTY IN
 SETTLEMENT OF AN UNFAIR LABOR PRACTICE CHARGE (CASE NO.  5-CA-31 /2/
 AND, BASED ON THE RESPONDENT'S SUBSEQUENT REPUDIATION OF AND FAILURE TO
 HONOR THE AGREEMENT, THAT RESPONDENT HAD VIOLATED SECTION 7116(A)(1) AND
 (5) OF THE STATUTE.  IN SO CONCLUDING, HE FOUND HAT THE MEMORANDUM OF
 UNDERSTANDING, WHICH WAS CONCERNED WITH THE RESTRICTION OF VACANCIES FOR
 WHICH UNIT EMPLOYEES WOULD BE ELIGIBLE TO COMPETE, WAS NOT INTENDED TO
 INTERFERE WITH MANAGEMENT'S AUTHORITY TO SELECT EMPLOYEES FOR
 REASSIGNMENT SO AS TO BE IN CONFLICT WITH SECTION 7106(A) OF THE
 STATUTE, BUT WAS MERELY INTENDED TO PROVIDE PROCEDURES WHICH MANAGEMENT
 OFFICIALS WOULD OBSERVE IN EXERCISING SUCH AUTHORITY AND APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES WHO MIGHT BE ADVERSELY AFFECTED BY THE
 EXERCISE THEREOF UNDER SECTION 7106(B)(2) AND (3) OF THE STATUTE.  /3/
 INASMUCH AS THE JUDGE'S FINDINGS REGARDING THE PURPOSE AND INTENT OF THE
 MEMORANDUM OF UNDERSTANDING ARE SUPPORTED BY THE RECORD AND, AS SO
 INTERPRETED, THE PARTIES' AGREEMENT CONCERNS MATTERS WITHIN THE SCOPE OF
 THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) AND (3), /4/ THE AUTHORITY
 CONCLUDES THAT THE RESPONDENT'S COMPLETE REPUDIATION OF THE ENTIRE
 AGREEMENT WITH THE CHARGING PARTY VIOLATED SECTION 7116(A)(1) AND (5) OF
 THE STATUTE.  /5/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE GREAT LAKES PROGRAM SERVICE CENTER,
 SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 CHICAGO, ILLINOIS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) RESTRICTING APPOINTMENTS TO VACANT POSITIONS, FOR WHICH EMPLOYEES
 IN THE BARGAINING UNIT WOULD BE ELIGIBLE TO COMPETE, TO APPOINTMENT BY
 REASSIGNMENT, WITHOUT CONSULTING WITH LOCAL 1395, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
 REGARDING THE IMPACT OF SUCH RESTRICTION ON BARGAINING UNIT MEMBERS
 PURSUANT TO AN AGREED UPON MEMORANDUM OF UNDERSTANDING.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
 THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) EFFECTUATE AND HONOR THE MEMORANDUM OF UNDERSTANDING NEGOTIATED
 WITH LOCAL 1395, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE ON MARCH 27, 1979, IN CONNECTION
 WITH THE SETTLEMENT OF CASE NO. 5-CA-31.
 
    (B) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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
 DIRECTOR, GREAT LAKES PROGRAM SERVICE CENTER, DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, CHICAGO, ILLINOIS, AND SHALL BE POSTED AND MAINTAINED BY
 THE DIRECTOR FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
 INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE
 STEPS 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 V, 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., JULY 16, 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 RESTRICT APPOINTMENTS TO VACANT POSITIONS, FOR WHICH
 EMPLOYEES IN THE BARGAINING UNIT WOULD BE ELIGIBLE TO COMPETE, TO
 APPOINTMENT BY REASSIGNMENT, WITHOUT CONSULTING WITH LOCAL 1395,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES'
 EXCLUSIVE REPRESENTATIVE, REGARDING THE IMPACT OF SUCH RESTRICTION ON
 BARGAINING UNIT MEMBERS PURSUANT TO AN AGREED UPON MEMORANDUM OF
 UNDERSTANDING.  WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE
 WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE
 OF ANY RIGHT UNDER THE STATUTE.  WE WILL EFFECTUATE AND HONOR THE
 MEMORANDUM OF UNDERSTANDING NEGOTIATED WITH LOCAL 1395, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, ON MARCH 27, 1979, IN CONNECTION WITH THE SETTLEMENT OF
 CASE NO. 5-CA-31.
 
                           (AGENCY OR ACTIVITY)
 
 DATED:  . . .  BY:  (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
 DEFACED OR COVERED BY ANY OTHER MATERIAL.  IF EMPLOYEES HAVE ANY
 QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
 PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
 REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  175 WEST
 JACKSON BOULEVARD, SUITE 1359-A, CHICAGO, ILLINOIS 60604, AND WHOSE
 TELEPHONE NUMBER IS:  (312) 353-0139.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    FRANCIS X. DIPPEL
    MANAGEMENT REPRESENTATIVE
    G-122, W. HIGH RISE BUILDING
    6401 SECURITY BOULEVARD
    BALTIMORE, MARYLAND 21235
                            FOR THE RESPONDENT
 
    SHEILA REILLY, ESQUIRE
    ATTORNEY
    BRENDA M. ROBINSON, ESQUIRE
    REGIONAL ATTORNEY
    FEDERAL LABOR RELATIONS AUTHORITY
    219 SOUTH DEARBORN, ROOM 1638
    CHICAGO, ILLINOIS 60604
 
    BEFORE:  ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           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.
 
    THE INSTANT MATTER WAS INITIATED BY A CHARGE FILED ON APRIL 26, 1979,
 AND AMENDED ON JULY 26, 1979.  COMPLAINT AND NOTICE OF HEARING ISSUED ON
 SEPTEMBER 5, 1979 ALLEGING A VIOLATION OF 5 U.S.C. 7116(A)(1) AND (5)
 BASED ON RESPONDENT'S ALLEGED REPUDIATION OF A MEMORANDUM OF
 UNDERSTANDING AND ITS RESTRICTING VACANCIES FOR WHICH EMPLOYEES IN THE
 BARGAINING UNIT WOULD BE ELIGIBLE TO COMPETE, TO APPOINTMENT BY
 REASSIGNMENT ONLY WITHOUT FIRST CONSULTING WITH THE UNION.
 
    A HEARING WAS HELD ON NOVEMBER 8 AND 9, 1979 IN CHICAGO, ILLINOIS.
 ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
 HEREIN.  BOTH PARTIES SUBMITTED TIMELY BRIEFS IN THE MATTER.
 
    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.
 
                                 FINDINGS
 
    THE GREAT LAKES PROGRAM SERVICE CENTER, SOCIAL SECURITY
 ADMINISTRATION, HEREINAFTER REFERRED TO AS "RESPONDENT" HAS RECOGNIZED
 AT ALL TIME MATERIAL HEREIN THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1395 HEREINAFTER REFERRED TO AS THE "UNION" AS THE
 EXCLUSIVE REPRESENTATIVE OF ALL EMPLOYEES EMPLOYED BY THE RESPONDENT AT
 ITS GREAT LAKES PROGRAM SERVICE CENTER, EXCLUDING MANAGEMENT OFFICIALS
 AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY.
 
    ON MARCH 27, 1979, RESPONDENT AND THE UNION IN SETTLEMENT OF AN
 UNFAIR LABOR PRACTICE CHARGE ENTERED IN TO A MEMORANDUM OF UNDERSTANDING
 WHICH READ, IN PERTINENT PART, AS FOLLOWS:
 
    IN SETTLEMENT OF UNFAIR LABOR PRACTICE COMPLAINT NO. 5-CA-31, THE
 RESPONDENT AND
 
    COMPLAINANT IN THIS CASE AGREE THAT IN THE FUTURE THE ACTIVITY, PRIOR
 TO RESTRICTING ANY
 
    VACANT POSITION TO APPOINTMENT BY REASSIGNMENT, FOR WHICH ANY
 BARGAINING UNIT MEMBER COULD BE
 
    ELIGIBLE TO COMPETE EXCEPT FOR THE RESTRICTION, WILL GIVE LOCAL 1395
 THE OPPORTUNITY TO FULLY
 
    CONSULT, IN A GOOD FAITH EFFORT TO REACH AGREEMENT, ON THE
 JUSTIFICATION FOR THE RESTRICTION
 
    AND ITS IMPACT ON BARGAINING UNIT MEMBERS;  THE ACTIVITY SHALL MAKE
 AVAILABLE TO THE LOCAL ALL
 
    DIRECTIVES AND ORDERS FROM HIGHER LEVEL AUTHORITIES, IF ANY, AND
 OTHER INFORMATION AND
 
    EVIDENCE ON WHICH THE PROPOSAL TO RESTRICT APPOINTMENTS TO THE
 VACANCY WAS BASED.
 
    THE MEMORANDUM OF UNDERSTANDING WAS SIGNED BY UNION VICE-PRESIDENT
 LEE V. LANGSTER AND JACK E. CUNNINGHAM, LABOR RELATIONS SPECIALIST FOR
 THE RESPONDENT.  ALSO PRESENT DURING THE DISCUSSION AND SIGNING OF THE
 MEMORANDUM WAS JOHN DOSE, A FIELD AGENT FOR THE FEDERAL LABOR RELATIONS
 AUTHORITY.
 
    THE TESTIMONY AT THE HEARING DISCLOSED THAT AFTER SOME COMPROMISE
 LANGUAGE WAS WORKED OUT BETWEEN THE PARTIES, THE LANGUAGE OF THE
 MEMORANDUM WAS TYPED SO THAT IT COULD BE REVIEWED AND APPROVED.  MR.
 LANGSTER SOUGHT THE APPROVAL OF UNION PRESIDENT DON JONES AND RETURNED
 TO THE MEETING ROOM TO SIGN THE MEMORANDUM.  SIMILARLY, MR. CUNNINGHAM
 LEFT THE MEETING ROOM, ALLEGEDLY TO SEEK OUT THE DIRECTOR, MS. PRESLEY
 OR OTHER HIGHER LEVEL MANAGEMENT OFFICIALS FOR THEIR APPROVAL OF THE
 MEMORANDUM.  ALTHOUGH CUNNINGHAM COULD NOT FIND ANY HIGHER LEVEL
 MANAGEMENT OFFICIALS HE RETURNED TO THE MEETING ROOM AND SIGNED THE
 MEMORANDUM WITHOUT INFORMING MR.  LANGSTER THAT APPROVAL HAD NOT BEEN
 GRANTED.
 
    ACCORDING TO MR. CUNNINGHAM, HE WAS INFORMED BY DIRECTOR PRESLEY ON
 MARCH 29, 1979 THAT HE HAD BY VIRTUE OF THE MEMORANDUM, GIVEN AWAY A
 MANAGEMENT RIGHT AND THAT SHE WOULD NOT BE TIED TO SUCH A MEMORANDUM.
 PRESLEY STATED, "IN THE FIRST PLACE YOU HAD NO AUTHORITY TO MAKE AN
 AGREEMENT LIKE THIS.  IN THE SECOND PLACE, YOU HAVE GIVEN UP MY RIGHT
 WHICH IS PROTECTED UNDER THE LAW."
 
    MR. CUNNINGHAM THEN CHECKED WITH THE NATIONAL LABOR RELATIONS STAFF
 FOR THE AGENCY AND IMMEDIATELY CONTACTED BOTH MR. DOSE AND MR. LANGSTER
 EXPLAINING TO THEM WHAT HAD OCCURRED, THAT RESPONDENT WAS RESCINDING THE
 MEMORANDUM AND SUGGESTED THAT THE UNION EITHER WITHDRAW THE WITHDRAWAL
 AND REINSTATE THE CASE OR REFILE THE ORIGINAL CASE WHICH THE MEMORANDUM
 RESOLVED.
 
    SUBSEQUENTLY, ON APRIL 9, 1979, MR. CUNNINGHAM WROTE TO UNION
 PRESIDENT JONES INFORMING HIM THAT,
 
    I WAS INFORMED BY TOP MANAGEMENT THAT I HAD NO AUTHORITY, EITHER
 ACTUAL OR IMPLIED, TO
 
    USURP A MANAGEMENT PEROGATIVE AND SIGN A DOCUMENT THAT COULD ABRIDGE
 A MANAGEMENT RIGHT.  I
 
    WAS INFORMED THAT I HAD EXCEEDED THE POWERS OF MY POSITION AND MY
 ACTIONS WOULD NOT BE
 
    RATIFIED.
 
    WITH RESPECT TO MR. CUNNINGHAM'S AUTHORITY THE RECORD INDICATES THAT
 HE IS THE ONLY LABOR RELATIONS SPECIALIST EMPLOYED BY THE RESPONDENT AT
 ITS PROGRAM CENTER AND THAT HE IS THE PRIMARY MANAGEMENT CONTACT WITH
 THE UNION ON DAY-TO-DAY LABOR RELATIONS MATTERS.  HIS WORK INVOLVED
 SETTLEMENTS AND SIGNING SETTLEMENT AGREEMENTS FOR EMPLOYEES AND UNION
 GRIEVANCES.  IN ADDITION, HE PREPARES AND SIGNS RESPONSES TO LETTERS
 FROM THE UNION ADDRESSED TO THE DIRECTOR AND HE PREPARES LABOR RELATIONS
 MEMORANDUM TO SUPERIORS AND TO THE UNION FOR THE DIRECTOR'S SIGNATURE.
 FURTHER, HE HAS RESPONDED TO BARGAINING REQUESTS FROM THE UNION, SIGNED
 MEMORANDUMS OF UNDERSTANDING AND SIGNED RESPONSES TO UNFAIR LABOR
 PRACTICE CHARGES.  FINALLY, CUNNINGHAM WAS PERCEIVED BY THE UNION TO BE
 THE PRIMARY MANAGEMENT SPOKESPERSON FOR LABOR RELATIONS MATTERS AND THIS
 PERCEPTION WAS BASED ON HIS BEING THE ONLY LABOR RELATIONS SPECIALIST AT
 THE CENTER INVOLVED IN EMPLOYEE GRIEVANCES, UNION GRIEVANCES, UNFAIR
 LABOR PRACTICE CHARGES, AND CONSULTING AND NEGOTIATING ON CHANGES IN
 WORKING CONDITIONS.  AS PREVIOUSLY STATED, AT THE TIME OF SIGNING,
 CUNNINGHAM INDICATED NO RESERVATIONS ABOUT SIGNING THE MEMORANDUM OF
 UNDERSTANDING.
 
    THE DIRECTOR OF MANAGEMENT, JUANITA CAROTHERS, IS CUNNINGHAM'S DIRECT
 SUPERVISOR.  SHE TESTIFIED THAT MANAGERS' AUTHORIZATION TO SIGN
 MEMORANDUMS WAS NOT CLEARLY DELINEATED, BUT WAS DEPENDENT ON SUCH
 FACTORS AS THE SUSCEPTIBILITY OF THE SUBJECT MATTER TO BE IDENTIFIED AS
 OPERATIONS OR AS MANAGEMENT, THE IMPORTANCE OF SUBJECT MATTER AND THE
 AVAILABILITY OF INDIVIDUALS.  ACCORDING TO CAROTHERS, CUNNINGHAM COULD
 SIGN ON BEHALF OF TOP MANAGEMENT AND THAT IN CERTAIN ROUTINE AREAS HE
 COULD SIGN AS A MATTER OF COURSE, BUT USING THE SUBSTANCE OF A
 MANAGEMENT DECISION.  MS. CAROTHERS TESTIFIED THAT CUNNINGHAM IS AN
 EXPERT IN LABOR RELATIONS MATTERS AND THAT HIS EFFORTS ARE GENERALLY
 REGARDED AS TECHNICALLY AUTHORITATIVE AND ACCEPTED WITHOUT CHANGE.
 
    DIRECTOR PRESLEY TESTIFIED THAT SHE GAVE CUNNINGHAM DIRECTION IN
 LABOR RELATIONS MATTERS AND ALSO THAT SHE SOUGHT ADVICE FROM CUNNINGHAM
 ON SUCH MATTERS.  FURTHER, SHE REFERRED MEMORANDUM FROM THE UNION
 CONCERNING UNFAIR LABOR PRACTICE CHARGES AND LABOR RELATIONS MATTERS TO
 HIM FOR RESPONSE.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE RESPONDENT CONTENDS THAT ITS LABOR RELATIONS SPECIALIST IS NOT AN
 AGENT IN THE SENSE THAT HE CAN BIND RESPONDENT BY HIS ACTION, BUT
 CERTAINLY HE ACTS AS RESPONDENT'S REPRESENTATIVE TO DEAL WITH THE LOCAL
 UNION ON A DAY-TO-DAY BASIS TO RESOLVE MINOR AND MUNDANE
 LABOR-MANAGEMENT PROBLEMS OR DISPUTES.
 
    THERE IS NO QUESTION ON THE RECORD THAT CUNNINGHAM HAD EXPRESS
 AUTHORITY TO CONDUCT DAY-TO-DAY LABOR RELATIONS WITH THE UNION.
 FURTHERMORE, CUNNINGHAM IN HIS POSITION AS LABOR RELATIONS SPECIALIST
 EXERCISED INDEPENDENT DECISION AUTHORITY BY THE MANNER IN WHICH HE
 PERFORMED THIS WORK AND THROUGH WHICH HE CONTROLLED RESPONDENT'S
 HANDLING OF GRIEVANCES, UNFAIR LABOR PRACTICE CHARGES AND THE LIKE.
 ALTHOUGH CUNNINGHAM MAY HAVE BEEN REQUIRED TO SEEK APPROVAL FROM OTHER
 MANAGEMENT OFFICIALS THERE IS NO INDICATION THAT THE UNION WAS AWARE
 THAT HE DID NOT HAVE AUTHORITY OR FINAL RESPONSIBILITY FOR CERTAIN
 MATTERS, INCLUDING THE DISPOSITION OF UNFAIR LABOR PRACTICE CHARGES,
 WHICH IS WHAT IS INVOLVED IN THE INSTANT CASE.  IT IS HORNBOOK LAW THAT,
 UNDER APPROPRIATE CIRCUMSTANCES, AN AGENT MAY, THROUGH THE EXERCISE OF
 APPARENT AUTHORITY, ASSUME THE RESPONSIBILITY AND LIABILITY OF THE
 PRINCIPAL.  DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, CONSOLIDATED
 CIVILIAN PERSONNEL OFFICE, 1 FLRA NO. 80, JULY 5, 1980.  IT IS EQUALLY
 WELL ESTABLISHED THAT WHERE A DOCUMENT IS AMBIGUOUS AS TO WHAT WAS
 INTENDED, PAROL EVIDENCE OF SUCH FACTS IS FREELY ADMITTED.
 
    IT IS APPARENT THAT CUNNINGHAM WAS CLOTHED WITH THE AUTHORITY TO ACT
 ON CERTAIN MATTERS SUCH AS UNFAIR LABOR PRACTICE CHARGES ALBEIT THE
 CHARGES WERE INITIALLY DIRECTED TO RESPONDENT'S DIRECTOR.  THUS, THE
 EVIDENCE ESTABLISHES THAT CUNNINGHAM'S SIGNING OF THE MEMORANDUM OF
 UNDERSTANDING WAS A NATURAL AND GENERAL CONSEQUENCE OF THE EXPRESS
 AUTHORITY GRANTED TO HIM AND THAT HE HAD IMPLIED AND INHERENT AUTHORITY
 TO SIGN THE MEMORANDUM.  ACCORDINGLY, IT IS FOUND THAT LABOR RELATIONS
 SPECIALIST CUNNINGHAM HAD THE IMPLIED AUTHORITY TO BIND RESPONDENT TO
 THE MARCH 27, 1979 MEMORANDUM OF UNDERSTANDING.
 
    IN ITS BRIEF, RESPONDENT ARGUES THAT CUNNINGHAM DID NOT HAVE
 AUTHORITY TO BARGAIN AWAY A PROHIBITED RIGHT FOR NEGOTIATIONS OR GIVE UP
 A RESERVED MANAGEMENT RIGHT TO ASSIGN OR REASSIGN EMPLOYEES IN THE
 PERFORMANCE OF THEIR DUTIES AND RESPONSIBILITIES.  RESPONDENT CONTENDS
 THAT UNDER SECTION 7106(A)(2)(B) AND (C) /6/ THE RIGHT TO ASSIGN OR
 REASSIGN EMPLOYEES IS A MANDATORY RESERVED MANAGEMENT RIGHT AND A
 PROHIBITED ITEM FOR BARGAINING.  ON THE OTHER HAND, THE GENERAL COUNSEL
 POINTS OUT THAT THE SUBJECT MEMORANDUM STATES ONLY THAT RESPONDENT,
 "PRIOR TO RESTRICTING, ANY VACANT POSITION TO APPOINT ANY REASSIGNMENT,
 FOR WHICH ANY BARGAINING UNIT MEMBER COULD BE ELIGIBLE TO COMPETE EXCEPT
 FOR THE RESTRICTION, WILL GIVE LOCAL 1395 THE OPPORTUNITY TO FULLY
 CONSULT, IN A GOOD FAITH EFFORT, ON THE JUSTIFICATION FOR THE
 RESTRICTION AND ITS IMPACT ON BARGAINING UNIT MEMBERS." THE GENERAL
 COUNSEL ARGUES THAT IT IS NOT THE ASSIGNMENT OF EMPLOYEES THAT HAS BEEN
 NEGOTIATED, BUT MERELY ASPECTS OF THE PROCEDURES BY WHICH THE RESPONDENT
 DECIDES TO FILL A VACANT POSITION THROUGH APPOINTMENT BY REASSIGNMENT
 INSTEAD OF COMPETITION BY EMPLOYEES.
 
    CASE LAW HAS ESTABLISHED THAT THE IMPACT AND IMPLEMENTATION OF A
 MANAGEMENT DECISION WITHIN THE SCOPE OF A MANAGEMENT RIGHT IS FULLY
 NEGOTIABLE.  SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS BUREAU AND
 OFFICES, BALTIMORE, MARYLAND AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1923, AFL-CIO, A/SLMR NO. 1116;  DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT AND NATIONAL
 TREASURY EMPLOYEES UNION AND CHAPTER 6, NTEU A/SLMR NO.  995;
 SMITHSONIAN INSTITUTION, NATIONAL ZOOLOGICAL PARK AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 185, AFL-CIO, A/SLMR NO. 993.
 WHERE SUCH AN OBLIGATION EXISTS IT WOULD APPEAR THAT A MEMORANDUM OF
 UNDERSTANDING SETTING FORTH A DUTY TO CONSULT WITH REGARD TO IMPACT ON
 BARGAINING UNIT EMPLOYEES WOULD NOT HAVE, AS RESPONDENT CONTENDS, UNDER
 THE EXECUTIVE ORDER NEGOTIATED AWAY A MANAGEMENT RIGHT AND WOULD HAVE
 BEEN A VALID AGREEMENT.
 
    FURTHERMORE, SUBSECTION (B) OF SECTION 7106 /7/ PROVIDES THAT
 MANAGEMENT AND THE UNION MAY BARGAIN OVER THE PROCEDURES MANAGEMENT
 WILL
 USE IN EXERCISING ITS AUTHORITY AND THEY MAY ALSO NEGOTIATE APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
 OF AUTHORITY IN SO CALLED PROHIBITED AREAS.
 
    WHILE THE ORDER AND THE STATUTE DIFFER WIDELY IN THE STRUCTURE OF THE
 MANAGEMENT RIGHTS CLAUSE IT IS CLEAR UNDER BOTH THAT AGENCY MANAGEMENT
 MAY NOT BARGAIN AWAY ITS AUTHORITY TO MAKE DECISIONS IN CERTAIN RESERVED
 AREAS.  HOWEVER, THE LANGUAGE OF SECTION 7106(B) MAKES IT ABUNDANTLY
 CLEAR THAT ANY EXERCISE OF MANAGEMENTS RIGHTS UNDER 7106(A) IS
 CONDITIONED ON FULL NEGOTIATIONS OF ARRANGEMENTS REGARDING ADVERSE
 IMPACT AND PROCEDURES AND THAT THESE PROCEDURES AND ARRANGEMENTS ARE
 MANDATORY SUBJECTS OF COLLECTIVE BARGAINING.  RESPONDENT'S RELIANCE ON
 7106(A) IS MISPLACED.  INDEED, THE DECISION ON THE RIGHT TO ASSIGN OR
 REASSIGN IS A MANAGEMENT PEROGATIVE, BUT UNDER BOTH THE EXECUTIVE ORDER
 AND THE STATUTE IMPACT BARGAINING IS WITHOUT DOUBT REQUIRED.  IN THE
 CIRCUMSTANCES OF THIS CASE, IT APPEARS THAT THE SIGNED MEMORANDUM
 REQUIRED NO MORE THAN BARGAINING OR CONSULTING ON PROCEDURES OR IMPACT,
 WHICH IS ANTICIPATED BY THE STATUTE AND DOES NOT IMPINGE ON RESPONDENT'S
 PEROGATIVE TO MAKE ITS DECISION REGARDING REASSIGNMENT.  THEREFORE,
 RESPONDENT'S FAILURE TO HONOR AND ITS REPUDIATION OF THE AGREEMENT AS
 ILLEGAL CONSTITUTES A BREACH OF THAT AGREEMENT.  CF. PUGET SOUND NAVAL
 SHIPYARD, U.S. DEPARTMENT OF THE NAVY AND BREMERTON METAL TRADES
 COUNCIL, BREMERTON, WASHINGTON, A/SLMR NO. 829;  VETERANS
 ADMINISTRATION;  VETERANS ADMINISTRATION HOSPITAL, NORTHPORT, NEW YORK,
 A/SLMR NO. 824.  ACCORDINGLY, IT IS FOUND THAT RESPONDENT'S REPUDIATION
 AND FAILURE TO HONOR THE MARCH 27, 1979 MEMORANDUM OF UNDERSTANDING
 AMOUNTED TO A UNILATERAL BREACH OF THE AGREEMENT AND IS VIOLATIVE OF
 SECTION 7116(A)(5) AND (1) OF THE STATUTE.
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7) OF THE STATUTE, 5 U.S.C.SECTION
 7118(A)(7), AND SECTION 2423.25 OF THE INTERIM RULES AND REGULATIONS,
 FED. REG., VOL. 44, NO. 147, JULY 30, 1979 (5 C.F.R.SECTION 2423.25),
 THE AUTHORITY HEREBY ORDERS THAT DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION, CHICAGO, ILLINOIS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) RESTRICTING VACANCIES FOR WHICH EMPLOYEES IN THE BARGAINING UNIT
 WOULD BE ELIGIBLE TO COMPETE, TO REAPPOINTMENT BY REASSIGNMENT, WITHOUT
 CONSULTING WITH THE COLLECTIVE BARGAINING REPRESENTATIVE REGARDING THE
 IMPACT ON BARGAINING UNIT MEMBERS PURSUANT TO AN AGREED UPON MEMORANDUM
 OF UNDERSTANDING.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
 THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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, GREAT LAKES PROGRAM CENTER, DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, CHICAGO, ILLINOIS, AND SHALL BE POSTED AND MAINTAINED BY
 HER FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING
 ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE AREA SUPERVISOR SHALL TAKE REASONABLE STEPS TO
 INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.29 OF THE INTERIM RULES AND REGULATIONS,
 NOTIFY THE REGIONAL DIRECTOR OF REGION 5, ROOM 1638, DIRKSEN FEDERAL
 BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS, IN WRITING,
 WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN
 TAKEN TO COMPLY HEREWITH.
 
                            /S/ ELI NASH, JR.
 
                       ELI NASH, JR.
                       ADMINISTRATIVE LAW JUDGE
 
 DATED:  JANUARY 29, 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT RESTRICT VACANCIES FOR WHICH EMPLOYEES IN THE BARGAINING
 UNIT WOULD BE ELIGIBLE TO COMPETE, TO REAPPOINTMENT BY REASSIGNMENT,
 WITHOUT CONSULTING WITH THE COLLECTIVE BARGAINING REPRESENTATIVE
 REGARDING THE IMPACT ON BARGAINING UNIT MEMBERS PURSUANT TO AN AGREED
 UPON MEMORANDUM OF UNDERSTANDING.  WE WILL NOT IN ANY LIKE OR RELATED
 MANNER INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE
 BY THE EMPLOYEE OF ANY RIGHT UNDER THE STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
 DATED:  . . .  BY:  (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
 DEFACED OR COVERED BY ANY OTHER MATERIAL.  IF EMPLOYEES HAVE ANY
 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
 PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR,
 FEDERAL LABOR RELATIONS AUTHORITY, REGION 5, WHOSE ADDRESS IS:  ROOM
 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO,
 ILLINOIS 60604.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE NAMED RESPONDENT, THE DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, IS NOW THE DEPARTMENT OF HEALTH AND HUMAN SERVICES.
 
    /2/ THE JOINT EXHIBITS IN THE RECORD INDICATE THAT A REQUEST TO
 WITHDRAW THE UNFAIR LABOR PRACTICE CHARGE IN CASE NO. 5-CA-31 WAS FILED
 ON THE SAME DAY AS THE MEMORANDUM OF UNDERSTANDING WAS SIGNED, AND THE
 CHARGE WAS WITHDRAWN WITH THE APPROVAL OF THE REGIONAL DIRECTOR.
 
    /3/ SECTION 7106(B) PROVIDES IN PERTINENT PART:
 
    (B) 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;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /4/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE,
 FORT DIX, NEW JERSEY, 2 FLRA 152, 153-58 (1979), ENFORCED SUB NOM.,
 D