16:0434(68)CA - SSA and AFGE Local 1923 -- 1984 FLRAdec CA



[ v16 p434 ]
16:0434(68)CA
The decision of the Authority follows:


 16 FLRA No. 68
 
 SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL
 1923, AFL-CIO
 Charging Party
 
                                            Case Nos. 3-CA-2563
                                                      3-CA-20023
                                                      3-CA-20024
                                                      3-CA-20179
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.  The
 Judge further found that the Respondent had not engaged in certain other
 alleged unfair labor practices and recommended dismissal of the
 complaint with respect to them.  Exceptions to the Judge's Decision were
 filed by the Respondent.
 
    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, the Authority hereby adopts the
 Judge's findings, conclusions and recommended order to the extent
 consistent herewith.
 
    The Respondent and the Charging Party are parties to a collective
 bargaining agreement which includes a provision for processing backpay
 grievances.  That provision requires that either party will meet with
 the other upon request at step 3 of the grievance procedure.  Upon such
 a request by the Charging Party, the Respondent failed to so meet during
 consideration of the backpay grievance of employee Lancione, thus
 leading to the complaint in Case No. 3-CA-20024.  The Judge found that
 the Respondent's failure to meet violated section 7116(a)(1) and (5) of
 the Statute, /1/ because "Respondent's action resulted in a clear and
 patent breach of the terms of the negotiated agreement." He further
 found that Respondent's "patent breach" constituted a "unilateral change
 in the agreement in derogation of the bargaining obligation . . . " and,
 therefore, a violation of section 7116(a)(1) and (5).  The Authority
 disagrees.  The record reveals that the Respondent cooperated fully at
 steps one and two of Lancione's backpay grievance and that it attempted
 to rectify its failure to meet at step 3.  It is also noted that, when
 the Charging Party thereafter requested arbitration, the Respondent
 acceded to that request.  Thus, the Authority concludes that the single
 instance of the Respondent's failure to honor a request for a third step
 meeting, in the circumstances of this case, did not constitute a
 rejection of the collective bargaining agreement in violation of section
 7116(a)(1) and (5) of the Statute.  /2/ Accordingly, the complaint in
 Case No. 3-CA-20024 shall be dismissed.
 
    In Case Nos. 3-CA-2563, 3-CA-20179 and 3-CA-20023, the Judge found
 that the Respondent violated section 7116(a)(1) and (5) of the Statute
 by delivering grievance decisions and responses directly to employee
 grievants and thus bypassing their exclusive representative, the
 Charging Party.  The Judge also found that such conduct constituted an
 independent violation of section 7116(a)(1) in that it interfered with
 the right of employees to designate and rely upon the Union to present
 and process their grievances through the grievance process.  The
 Authority adopts these findings and conclusions.  The Authority also
 agrees with the conclusion of the Judge in Case No. 3-CA-20023 that the
 Respondent did not patently breach its collective bargaining agreement
 with the Charging Party in that case by issuing a second step 1 response
 to the grievance of employee Johnson.  In so concluding, the Authority
 notes that the Respondent cooperated with the contractual grievance
 machinery, and, upon request, acceded to arbitrate Johnson's grievance,
 and that, therefore, Respondent's conduct did not constitute a rejection
 of the collective bargaining agreement.  /3/
 
                                   Order
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Respondent, Social Security
 Administration, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to bargain in good faith with the American
 Federation of Government Employees, Local 1923, AFL-CIO, the exclusive
 bargaining representative, by bypassing designated Union representatives
 of employees and furnishing or delivering grievance decisions or other
 responses only to the employee grievants.
 
    (b) Interfering with, restraining, or coercing its employees in the
 exercise of rights assured by the Federal Service Labor-Management
 Relations Statute by furnishing or delivering decisions or other
 responses to grievances directly to employees while failing to furnish
 same to American Federation of Government Employees, Local 1923,
 AFL-CIO, the designated representative of such employees.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Furnish or deliver all decisions or other responses to grievances
 to designated Union representatives of employees at the same time as
 they are furnished or delivered to employee grievants.
 
    (b) Reproduce and distribute to all supervisory personnel the
 attached Notice.
 
    (c) Post at its Baltimore, Maryland facilities 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, or his designee, and shall
 be posted and maintained for sixty (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 insure that said Notices are not altered, defaced, or covered
 by any other material.
 
    (d) 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 complaint in Case No. 3-CA-20024 be
 dismissed in its entirety, and that the allegations of the complaint in
 Case No. 3-CA-20023 pertaining to "patent breaches" of the negotiated
 agreement be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., November 14, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, 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 interfere with, restrain, or coerce our employees in the
 exercise of their rights assured by the Federal Service Labor-Management
 Relations Statute by furnishing or delivering decisions or other
 responses to grievances directly to employees while failing to furnish
 or deliver same to American Federation of Government Employees, Local
 1923, AFL-CIO, the designated representative of such employees.
 
    WE WILL NOT fail and refuse to bargain in good faith with the
 American Federation of Government Employees, Local 1923, AFL-CIO, the
 exclusive bargaining representative, by bypassing designated Union
 representatives of employees and furnishing or delivering grievance
 decisions or other responses only to the employee grievants.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL furnish or deliver all decisions or other responses to
 grievances to the American Federation of Government Employees, Local
 1923, AFL-CIO, the designated representative at the same time they are
 furnished or delivered to employee grievants.
 
    WE WILL distribute copies of this Notice to all supervisory
 personnel.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 50 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, NW, Suite 700, Washington, D.C. 20036 and whose
 telephone number is:  (202) 653-8452.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    SOCIAL SECURITY ADMINISTRATION
                                Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, LOCAL 1923, AFL-CIO
                              Charging Party
 
                                       Case Nos. 3-CA-2563
                                                 3-CA-20023
                                                 3-CA-20024
                                                 3-CA-20179
 
    John J. Barrett, Esquire
    For the Respondent
 
    Gordon E. Christensen, Esquire
    For the Charging Party
 
    Peter A. Sutton, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns a consolidated unfair labor practice complaint
 issued by the Regional Director, Region Three, Federal Labor Relations
 Authority, Washington, D.C. against the Social Security Administration
 (Respondent).  The complaint alleged, in substance, that Respondent
 violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
 by bypassing the Union on three occasions when it delivered first step
 grievance responses directly to unit employees and by patently breaching
 the collective bargaining agreement by refusing to meet with the Union,
 upon request, and by the conduct of a step two official in issuing a
 second first step response to a grievance.  Respondent's answer admits
 jurisdiction, but denies any violation of the Statute.
 
    A hearing was held in this matter in Baltimore, Maryland.  The
 Respondent, Charging Party, and the General Counsel, FLRA were
 represented by counsel and afforded full opportunity to be heard, adduce
 relevant evidence, examine and cross-examine witness, and file
 post-hearing briefs.  Based on the entire record herein, /4/ including
 my observation of the witnesses and their demeanor, the exhibits,
 stipulation, other relevant evidence adduced at the hearing, and the
 briefs, I make the following findings of fact, conclusions of law, and
 recommendations.
 
                             Findings of Fact
 
    General
 
    The American Federation of Government Employees, Local 1923, AFL-CIO
 (Charging Party or Union), is the certified exclusive representative of
 an appropriate unit of Respondent's headquarters employees including the
 grievants identified herein.  Since September 15, 1977, and at all times
 thereafter, there has been a collective bargaining agreement in effect
 between the Union and Respondent (Jt. Exh. 1).  The parties' negotiated
 agreement includes a procedure for the adjustment of grievances in
 Article 22 (Jt. Exh. 2).
 
    Article 22, Section A provides, in part, that grievances and
 complaints "should be settled in an orderly, prompt, and equitable
 manner" and that "(e)very effort will be made . . . to settle grievances
 at the first level of supervision." Section C provides that a grievance
 must be initiated by employee(s) covered by the agreement and/or their
 Union representative, and that grievances "will be processed in
 accordance with the steps provided for in Section E." The Section also
 provides that should "the Administration fail to process the grievance
 in the stated time period, the action will automatically be referred to
 the next step of this procedure with this fact noted." With respect to
 other than backpay grievances, Section E provides for a three-step
 procedure.  At each step, the supervisor or designated official will
 meet with the employee upon request.  The agreement provides for a
 decision within a designated period at each step.  No specific provision
 is made for delivery of decisions at the first two steps;  /5/ however,
 at Step 3, it is provided that, "a summary report of the Step 3 review
 shall be prepared by the Administration if the grievance is modified or
 denied.  Two copies of the report shall be given to the Union as soon as
 reasonably possible after the date on which the decision was made."
 
    The backpay grievance procedure, set out in Article 22, Section H,
 consists of a three-step process.  The process begins at Step 1 when the
 employee submits the grievance to his or her immediate supervisor.  The
 immediate supervisor forwards the grievance, together with any facts in
 his possession, /6/ to Step 2, the bureau/office management (Jt. Exh. 2,
 p. 135;  Tr. 78, 115-116).  At Step 2, the bureau/office management
 forwards a written summary of the factual information to the Director,
 Office of Human Resources, for decision.  The agreement provides that at
 Step 3, "Either party or his/her representative will meet with the other
 upon request to discuss the grievance." The Director, Office of Human
 Resources, is required to render a written administrative determination
 on the employee's backpay claim within 20 days of the appeal (Jt. Exh.
 2, p. 135;  Tr. 70).  Section I provides for arbitration of an
 unacceptable administrative determination.  Section J provides that,
 "collateral issues involved with backpay grievances which likewise may
 be the subject of a grievance will be simultaneously and collectively
 processed" (Jt. Exh. 2, p. 136).
 
    Settlement
 
    In late 1980-early 1981, the Union filed several unfair labor
 practice charges regarding Respondent's handling of unit employee
 grievances filed under the negotiated agreement (Tr. 128-129).  These
 charges were subsequently withdrawn by the Union in consideration of
 Respondent's agreement to prepare and distribute a two-page memorandum
 from Respondent's Director, Office of Human Resources, to all
 headquarters managers and supervisors explaining Respondent's duties
 regarding unit employee grievances.  The memorandum contained a specific
 section concerning Respondent contacts with unit employees on grievance
 responses.  This section provided, in pertinent part, that:
 
          All contacts, as well as the delivery of decisions at various
       Steps in the disposition process, should be made with the
       designated Union representative.  The need for a designated
       official to meet directly with a grievant would likely occur only
       under the rarest of circumstances . . . .
 
 Respondent distributed this memorandum to all of its managers and
 supervisors in April 1981 (Tr. 130;  Resp. Exh. 7).
 
    Case 3-CA-2563 (Regarding the Goodman Grievance)
 
    Thomas H. Goodman has been an employee of Respondent for
 approximately 15 years and presently works as a computer systems
 analyst.  In August 1980, Goodman began experiencing problems with
 tobacco smoke at his work site.  Goodman was unable to resolve the smoke
 problem on his own, and, in April 1981, he sought the help of Union
 steward G. Neel Purvis.  Purvis agreed to serve as Goodman's Union
 representative concerning the matter.  Accordingly, Purvis drafted a
 Step 1 grievance for Goodman and scheduled a meeting with Goodman's
 branch chief, James H. Ryland, to discuss the grievance (Tr. 20-22).
 
    On April 20, 1981, Goodman and Union steward Purvis met with Ryland
 in Ryland's office.  Purvis gave Ryland a copy of the grievance,
 discussed the matter, and explained that, as he was Goodman's
 representative, Ryland should respond directly to Purvis (Tr. 21-23,
 32-33).
 
    Thereafter, on or about April 27, 1981, Ryland approached Goodman,
 dropped the grievance response on his desk, stating, "Here, it is," and
 walked out.  No discussion occurred (Tr. 23-24;  GC Exh. 2).  Goodman,
 subsequently delivered the response to his Union representative, Purvis
 (Tr. 24, 33), Ryland did not provide Purvis, the designated
 representative, with the Step 1 answer, or ever advise him of its
 existence (Tr. 34).
 
    Union representative Purvis, upon receipt of the response from
 Goodman, acknowledged receipt and elected to proceed to the next step of
 the grievance procedure (GC Exh. 2).  Shortly thereafter, Purvis met
 with the second-step grievance official, division director Michael
 McCoy, to discuss the grievance (Tr. 37).  The grievance was referred to
 arbitration by the Union on July 8, 1981.  On January 22, 1982
 Arbitrator Berkely sustained Mr. Goodman's grievance (Tr. 8).
 
    Case 3-CA-20179 (Regarding the Furman Grievance)
 
    In November 1981 unit employee Pat Furman sought the assistance of
 Union steward Martha Service in regard to work problems Furman was
 having with her immediate supervisor, Marilyn Swartz.  Steward Service
 held a meeting with Swartz' supervisor, Joyce Causey, a second-line
 supervisor and second-step grievance official, to discuss the matter.
 Sometime after the meeting, Service prepared, and Furman signed, a
 grievance, which was placed on the desk of her immediate supervisor,
 Swartz.  The grievance indicated that Furman was represented by the
 Union and that Martha Service was the employee's Union representative
 (Jt. Exh. 9;  Tr. 102-104, 108).
 
    Thereafter, Swartz prepared a Step 1 decision, dated November 30,
 1981, and delivered it directly to the grievant Furman.  The grievant
 subsequently delivered it to stewart Service at the Union office (Tr.
 104, 111, 113;  GC Exh. 9).  Service then telephoned Swartz and asked
 her why she had given the decision directly to Furman instead of to
 Service, the designated representative.  Swartz became very irritated
 and told Service, among other things, that she had no intention of
 giving her a copy of the decision.  True to her word, Swartz never
 supplied Service with a copy of the Step 1 decision (Tr. 105-106).
 
    Union representative Service subsequently held a second-step
 grievance meeting with Joyce Causey, the second-step official, at which
 the grievance was resolved to the satisfaction of the grievant (Tr. 8,
 110).  Shortly thereafter, Ms. Furman left the employment of the
 Respondent (Tr. 106).
 
    Case 3-CA-20023 (Regarding the Johnson Grievance)
 
    Alan D. Johnson is employed as a GS-4 control clerk on Respondent's
 medical consultant staff.  In September 1980, Johnson was detailed for
 about ten months to Respondent's visual graphics services section.
 While working at visual graphics, Johnson was supervised by James
 Sizemore (Tr. 39).
 
    In February 1981, Johnson applied for a GS-5/7 visual information
 specialist opening in visual graphics.  He was advised by Sizemore and
 Walt Carr, visual graphics section chief, in April 1981 that he had been
 selected for the vacancy.  However, Carr and Sizemore later informed
 Johnson that the opening had been canceled due to personnel ceiling
 limitations.  Consequently, in about July 1981, Johnson returned to
 Respondent's medical consultant staff (Tr. 39-40).
 
    In August 1981, Johnson met with Union executive secretary Elaine
 Minnick to discuss the cancellation of the GS-5/7 opening.  After
 investigating the matter, Minnick agreed to file a backpay grievance for
 Johnson and act as his Union representative.  Thereafter, on August 10,
 1981, Minnick drafted a backpay grievance, which was signed by Johnson,
 and she hand-delivered it to Evelyn Echols, Johnson's immediate
 supervisor on the medical consultant staff.  The grievance noted that
 Johnson was represented by the Union and that Minnick was Johnson's
 Union representative (Tr. 40-41, 63-64;  Jt. Exh. 8).
 
    Sometime after August 10, the Johnson grievance was routed from Ms.
 Echols to Mr. Charles Brown of the division of labor relations and then
 to the visual graphics section.  The grievance was given to Mr. Sizemore
 by his section chief, Walter Carr.  Attached to it was a blank backpay
 grievance disposition form and a transmittal note from Mr. Brown of
 labor relations which directed that the form be filled out by the
 first-line supervisor and forwarded up through the chain of command.
 Mr. Sizemore completed the fact statement required by Article 22,
 Section H, Step 1 and forwarded the completed form, with all carbon
 copies intact, to the branch office.  The report was favorable to Mr.
 Johnson's claims, in at least some respects.  Mr. Sizemore made and kept
 a photocopy of his fact statement (Tr. 115-117;  Jt. Exh. 5;  GC Exh.
 3).
 
    One day after work, apparently sometime between September 3 and
 October 6, 1981, Mr. Johnson visited Mr. Carr and Mr. Sizemore in visual
 graphics.  Johnson mentioned his grievance.  Mr. Sizemore did not
 discuss the substance of Mr. Johnson's grievance, but remarked that he
 had been asked to respond to it and gave Johnson a copy of his factual
 report (Tr. 41, 46-47, 117).  Sizemore did not provide the Union, or
 Johnson's Union representative, with a copy (Tr. 66).
 
    After Sizemore issued his Step 1 factual report, Respondent's Step 2
 official in the grievance, Acting Director of Office of Material
 Resources Marilyn O'Connell, issued a factual report on September 24,
 1981.  O'Connell's report appeared on a separate disposition of
 grievance form under the "First Step Disposition-- First-line
 supervisor" heading.  /7/ O'Connell's summary of facts was unfavorable
 to Johnson's claim /8/ (GC Exh. 3 & 4;  Tr. 50, 94, 97).  O'Connell's
 negative factual report was delivered to Chief Union Steward Thomas Shaw
 on September 30, 1981.  /9/ Shaw forwarded O'Connell's report to
 Johnson's Union representative Minnick (Tr. 55, 64, 94, 96).
 
    Shortly after receiving O'Connell's Step 1 factual report, Minnick
 was contacted by Johnson, who asked about the status of his grievance.
 Minnick advised Johnson of O'Connell's negative Step 1 findings
 whereupon Johnson expressed surprise and informed Minnick that Sizemore
 had given him a favorable Step 1 report.  Minnick, not having been
 previously notified of the Sizemore Step 1 report, asked Johnson for a
 copy (Tr. 65-66).  Subsequently, the grievant provided Minnick with a
 copy of Sizemore's Step 1 findings.
 
    On October 6, 1981 the Union invoked arbitration on Johnson's backpay
 grievance.  The Union stated, in part, as follows,
 
          In conformance with Article 24, Section A, we are requesting
       arbitration in the grievance of Alan D. Johnson.
 
          In accordance with Section B, we expect to meet with you within
       five (5) working days of the date of this letter to jointly
       request the FMCS to provide a list of five (5) impartial persons
       to act as arbitrators.
 
          Because of the Agency's non-compliance with the provisions of
       Article 22, Section H, failure to act on this request will result
       in the appropriate charges (GC Exh. 5).
 
 The parties have selected an arbitrator to hear the matter (Tr.  8).
 The Union's unfair labor practice charge was dated October 7, 1981 and
 filed October 8, 1981.  The charge alleged, in substance, a patent
 breach of Article 22, Section H of the negotiated agreement by the
 action of Marilyn O'Connell (GC Exh. 1(c)).  On February 4, 1982, the
 Union filed an amended charge adding the alleged bypass of the Union
 representative by supervisor Sizemore (GC Exh. 1(e)).
 
    Case 3-CA-20024 (Regarding the Lancione Grievance
 
    On July 24, 1981, Union representative Elaine Minnick filed a backpay
 grievance on behalf of employee Robert Lancione (Jt. Exh. 7, Tr. 67).
 On August 4, 1981, the grievance was assigned to Larry Valentine,
 Division of Personnel Operations, Recruitment and Placement Branch, for
 preparation of factual statements;  a due date of August 27, 1981 was
 established (Tr. 118-122;  Respondent's Exh. 5).
 
    Since grievant Lancione had expressed an interest in meeting with
 management so that all the facts could be brought out in relation to his
 grievance, Union representative Minnick, on August 10, 1981, addressed a
 letter to Larry Massanari, Acting Director, Office of Human Resources,
 the Step 3 official responsible for making the written administrative
 determination on backpay grievances (Tr. 68-71;  GC Exh. 6).  The letter
 stated, in part, as follows:
 
          If you have not already received a backpay grievance for Mr.
       Robert M. Lancione the Office Director should be forwarding it to
       you by close of business August 19, 1981.
 
          Since we have no indication of what position the Step #1 or #2
       officials have in this matter, we would like to meet with you or
       your representative prior to your rendering your decision.  We
       believe, in the best interests of the grievant, we should know
       what information was forwarded so that all of the facts are
       adequately addressed.
 
          Please contact me on 4-7229 or 4-7238 to arrange a mutually
       agreeable time.  I advise you, in advance, that I will not be on
       duty the week of August 24-28, 1981.
 
 Minnick delivered the letter to Massanari's office where it was logged
 in as being received on August 10, 1981 (Tr. 69, 87, Resp. Exh. 4).  In
 the normal course of business, Union requests to meet are sent to the
 Division of Labor Relations and a copy is sent to Mr. Massanari.  He
 normally marks the copy to request that his secretary follow-up to make
 sure the requested meetings are timely scheduled (Tr. 80-81;  Resp. Exh.
 1, 2, 3).  However, in this instance, the letter was routed directly to
 the Division of Personnel Operations with a copy to the Division of
 Labor Relations, and no copy was sent to Massanari (Tr. 87;  Resp. Exh.
 4).
 
    Upon receipt of Ms. Minnick's letter by Mr. Valentine of the Division
 of Personnel Operations, Valentine contacted the Division of Labor
 Relations concerning what he should do about releasing a written
 determination on the grievance by the due date which he had been given
 of August 27 in view of the letter.  Valentine was advised not to issue
 the decision, since the Division of Labor Relations would have to act on
 the Union's request (Tr. 124).  The record does not reflect any effort
 by the Division of Labor Relations to contact the Union concerning the
 request between August 10, 1981 and September 17, 1981.
 
    By letter dated September 17, 1981 Ms. Minnick notified Mr. Massanari
 that the Union was proceeding to arbitration of Lancione's grievance
 since a decision had not been issued by September 16, 1981 and the
 Union's request to meet had not been honored.  The request for
 arbitration letter itself was substantially the same as the Johnson
 request noted above (GC Exh. 7, Tr. 71).
 
    Shortly after Minnick's September 17,.1981 arbitration request,
 Minnick met with personnel staffing specialist Larry Valentine and labor
 relations specialist Delores Walke over a matter unrelated to the
 Lancione grievance.  After the meeting was over, Valentine informed
 Minnick that he had a decision on the Lancione grievance.  Minnick
 responded that the Union had already invoked arbitration on the
 grievance.  However, Minnick further advised Valentine that she had an
 upcoming meeting with Massanari on another grievance, and that the Union
 would withdraw its Lancione arbitration request provided the Union was
 furnished the first and second step information and had the opportunity
 to make an oral presentation prior to the issuance of a decision (Tr.
 72-73).  Walke said it was unusual to furnish the Union with copies of
 the first and second step responses on backpay grievances, but she would
 check with the branch chief and then let Mr. Valentine know so he could
 get back in touch with Minnick concerning release of the information
 (Tr. 76-77, 101, 125).
 
    Ms. Walke checked with her supervisor and subsequently advised Mr.
 Valentine that, in view of the specific request, the two fact statements
 could be released to Ms. Minnick (Tr. 77).  Mr. Valentine attempted to
 reach Ms. Minnick by telephone on at least three occasions in order to
 arrange for her to receive the Step 1 and Step 2 fact statements.  He
 telephoned and left a message with the Union office (Tr. 125-127).  His
 efforts to reach Ms. Minnick were unsuccessful.  In addition to being on
 leave for one week in late August (GC Exh. 6), Ms. Minnick was out of
 town off and on as she was involved in national negotiations and, in
 September, went to Blacksburg, Virginia to receive labor relations
 training (Tr. 93-94).
 
    Subsequently, Minnick held a Step 3 meeting in September 1981 with
 Sarah Hammer, Massanari's special assistance, regarding another
 grievance.  At the end of the meeting, Minnick asked Hammer if she was
 familiar with the Union's request for a meeting and for the Step 1 and 2
 information on the Lancione grievance.  Hammer replied she was aware of
 the matter as she had talked to Larry Valentine about it.  Ms. Minnick
 stated she had not heard from Valentine and asked what was the agency's
 position and whether they would be discussing it.  Hammer replied that
 the agency's position was the same (Tr. 73, 100-101).
 
    On October 8, 1981 the Union filed an unfair labor practice charge
 (GC Exh. 1(g)).  As of April 6, 1982, arbitrator Benjamin Sipton had
 been selected by the parties to conduct the arbitration of the Lancione
 grievance (Tr. 8).
 
                Discussion, Conclusions, and Recommendation
 
    The General Counsel and the Charging Party contend that Respondent
 violated section 7116(a)(1) and (5) of the Statute by bypassing the
 designated Union representative and delivering first step grievance
 responses directly to unit employees Goodman, Johnson, and Furman.  They
 also contend that Respondent unilaterally altered and patently breached
 the negotiated backpay grievance procedures in violation of section
 7116(a)(1) and (5) by refusing to meet with the Union, upon request, to
 discuss employee Lancione's grievance at Step 3 and by issuing a second
 step one factual report regarding employee Johnson's grievance.
 
    Respondent defends on the basis that all aspects of the Johnson and
 Lancione cases have been referred to arbitration;  therefore, the
 complaint in this regard is barred by section 7116(d) of the Statute;
 that mere delivery of a grievance decision by a supervisor to an
 employee does not constitute direct dealing or an unfair labor practice;
  that Massanari did not knowingly and patently refuse to meet at Step 3
 on the Lancione grievance;  and that, since grievance responses are not
 issued by Step 1 or Step 2 officials, in backpay grievances, the
 allegations that Sizemore delivered a first-step response to Johnson and
 that O'Connell issued a second Step 1 response to Johnson are legally
 impossible and the complaint in this respect is legally insufficient.
 
    Section 7116(d)
 
    Respondent has failed to support its affirmative defense that section
 7116(d) applies herein to bar those aspects of the complaint dealing
 with the Johnson and Lancione grievances.  As noted, the pertinent
 issues in the complaint in this regard concern Respondent's alleged
 failure to bargain in good faith with the Union by dealing directly with
 unit employee Johnson, concerning the first-step response to his
 grievance, and by patently breaching the collective bargaining agreement
 in regard to the procedural handling of the Johnson and Lancione
 grievances (GC Exh. 1(m), par. 8(b), 9(a) and (b)).  Thus, the issues in
 the complaint are based on alleged violations of the Union's rights
 under the Statute.  The grievances, on the other hand, were not filed by
 the Union in its institutional capacity, but by individual employees
 seeking to obtain backpay.  Although the Union has invoked arbitration
 on the grievances filed by the individual employees, there has been no
 showing that the same issues raised in the complaint have been raised in
 the grievances or in the arbitration proceedings arising out of these
 grievances.  Department of Health and Human Services, 5 FLRA No. 63
 (1981);  Norfolk Naval Shipyard, Portsmouth, Virginia, 2 FLRA No. 104
 (1980);  Bureau of Alcohol, Tobacco and Firearms, National Office and
 Central Region, 2 FLRA No. 67 (1980).  Therefore, it is concluded that
 the issues being raised in the separate forums by the aggrieved parties
 are different and that further processing of the instant complaint in
 this respect is not barred by section 7116(d) of the Statute.
 
      Delivery of Decisions and Other Responses Directly to Grievants
 
    As stated in section 7114(a)(1) of the Statute, "A labor organization
 which has been accorded exclusive recognition is the exclusive
 representative of the employees in the unit it represents and is
 entitled to act for, and negotiate collective bargaining agreements
 covering, all employees in the unit." The right of the exclusive
 representative to "act for" unit employees includes the right
 encompassed by section 7121(b)(3) "on behalf of any employee in the unit
 . . . to present and process grievances . . . ."
 
    The exclusive representative simply cannot exercise its statutory
 right to act on behalf of a unit employees to present and process
 his/her grievance through the negotiated grievance procedure if it is
 ignored by the agency and not furnished, at the same time as the
 employee, with the written decision when rendered at each step of the
 negotiated grievance procedure, or if the employee, and not the Union,
 is voluntary furnished information bearing on the grievance.  The
 agency, by furnishing the employee, and not the specified Union
 representative, with a copy of the written decision or information
 bearing on the grievance, failed to accord appropriate recognition to
 the exclusive representative as the employee's designated representative
 during the grievance process and acted in derogation of its statutory
 obligation to consult in good faith with a labor organization as
 required by the Statute, in violation of section 7116(a)(5) of the
 Statute.  Such conduct constitutes an independent violation of section
 7116(a)(1).  It inherently interferes with the right of employees to
 designate and rely upon the Union to present and process their
 grievances through the grievance process, one of the basic benefits of
 exclusive recognition.
 
    Patent Breach
 
    The collective bargaining agreement provides that at Step 3 of the
 procedure for processing backpay grievances, "Either party or his/her
 representative will meet with the other upon request to discuss the
 grievance." The record reflects that the Union made such a request
 concerning the Lancione grievance on August 10, 1981.  The request was
 received and understood by Respondent's Division of Labor Relations,
 which normally acts on such requests.  No action was taken to comply
 with the request, although, over a month later, when the Union invoked
 arbitration, there was some discussion about the release of factual
 information and the possibility of a meeting, but neither materialized.
 
    A preponderance of the evidence supports the conclusion that
 Respondent's action resulted in a clear and patent breach of the terms
 of the negotiated agreement.  The agreement provides for a meeting upon
 request at Step 3 to discuss the backpay grievance.  The purpose of the
 provision is to allow each party the opportunity to support, explain, or
 clarify his position by an oral presentation so that full consideration
 of the pertinent facts and argument may be given prior to decision, thus
 possibly eliminating the need to request binding arbitration.  There is
 no dispute as to the interpretation of the agreement.  Respondent's
 defense that Mr. Massanari did not personally receive the request, that
 management attempted unsuccessfully to contact Minnick concerning her
 request for information after arbitration was invoked, and that there
 were meetings conducted by the parties after arbitration was requested
 at which the substance of the August 10 request was discussed are either
 without merit, or considering the time sequence, do not constitute a
 good faith effort to comply with the contractual provision.  Respondent
 received the initial request and took no action whatsoever to comply
 with it at the appropriate time.  Respondent's patent breach of the
 agreement constitutes a unilateral change in the agreement in derogation
 of the bargaining obligation and is, therefore, a violation of section
 7116(a)(5) and (1), as alleged.
 
    The allegation that Respondent also patently breached the collective
 bargaining agreement by the conduct of Marilyn G. O'Connell, the
 designated Step 2 official, in issuing a Step 1 response to the backpay
 grievance of employee Johnson is not supported by a preponderance of the
 evidence.  The agreement provides for the immediate supervisor at Step 1
 to forward the grievance, together with any facts in his possession, to
 Step 2, the bureau or office level, where the bureau or office
 management then forwards a written summary to Step 3, the Director of
 the Office of Human Resources.  The record reflects that supervisor
 Sizemore prepared and forwarded a favorable Step 1 factual report, for
 which he was reportedly reprimanded.  Ms. O'Connell, the second step
 official, then issued a factual report which was labeled as a first-step
 disposition.  There is no evidence that the Sizemore report was
 destroyed, or replaced by the O'Connell report and that the Sizemore
 report is no longer a part of the Johnson grievance file.  The record
 simply reflects that Sizemore forwarded his report through channels as
 requested and that the O'Connell report then issued.  No effort was made
 to conceal the O'Connell report.  It was voluntarily sent to the Union.
 Since O'Connell is admittedly a Step 2 official, her report, labeled as
 that of the first-line supervisor, would, in the face of supervisor
 Sizemore's first-step report, quite logically be considered under the
 agreement as the factual report of the second-step office head
 regardless of how O'Connell's report is labeled.  Without a showing that
 the Sizemore report was removed, replaced, or never added to the
 grievance file, the mere fact that O'Connell, the designated Step 2
 official, issued a factual report labeled as a Step 1 disposition, and
 that there now exist two factual reports labeled as "first-step"
 reports, does not support a clear and patent breach of the agreement.
 Accordingly, the evidence does not support a violation by Respondent of
 section 7116(a)(1) and (5) of the Statute in this respect, as alleged.
 
    Based upon the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   Order
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Respondent, Social Security Administration, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to consult in good faith with the
       American Federation of Government Employees, Local 1923, AFL-CIO,
       the exclusive bargaining representative, by bypassing designated
       Union representatives of employees and furnishing or delivering
       grievance decisions or other responses only to the employee
       grievants.
 
          (b) Interfering with, restraining, or coercing its employees in
       the exercise of rights assured by the Federal Service
       Labor-Management Relations Statute by furnishing or delivering
       decisions or other responses to grievances directly to employees
       while failing to furnish some to the designated American
       Federation of Government Employees, Local 1923, AFL-CIO,
       representatives of such employees.
 
          (c) Patently breaching its collective bargaining agreement with
       American Federation of Government Employees, Local 1923, AFL-CIO,
       by refusing and failing to meet with the Union to discuss
       individual backpay grievances at Step 3 as provided for in Article
       22, Section H of the negotiated agreement.
 
          (d) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Furnish or deliver all decisions or other responses to
       grievances to designated Union representatives of employees at the
       same time as they are furnished or delivered to employee
       grievants.
 
          (b) Upon request, the Director, Office of Human Resources or
       his/her representative shall meet with the designated Union
       representative and discuss Robert M. Lancione's backpay grievance
       dated July 24, 1981.
 
          (c) The Director, Office of Human Resources or his/her
       representative shall otherwise comply with Article 22, Section H
       of the collective bargaining agreement with American Federation of
       Government Employees, Local 1923, AFL-CIO by meeting at Step 3,
       upon request, to discuss backpay grievances.
 
          (d) Reproduce and distribute to all supervisory personnel the
       attached Notice marked "Appendix".
 
          (e) Post at its Baltimore, Maryland facilities copies of the
       attached Notice marked "Appendix" 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 sixty (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 insure
       that said notices are not altered, defaced, or covered by any
       other material.
 
          (f) Pursuant to 5 C.F.R. 3423.30, notify the Regional Director
       of Region III, 1111 18th Street, NW, Suite 700, Washington, D.C.
       20036 in writing, within thirty (30) days from the date of this
       order as to what steps have been taken to comply with the order.
 
    IT IS FURTHER ORDERED that paragraph 9(b) of the Consolidated
 Complaint be, and it hereby is, DISMISSED.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  June 28, 1982
    Washington, D.C.
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO 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 interfere with, restrain, or coerce our employees in the
 exercise of their rights assured by the Federal Service Labor-Management
 Relations Statute by furnishing or delivering decisions or other
 responses to grievances directly to employees while failing to furnish
 or deliver same to the designated American Federation of Government
 Employees, Local 1923, AFL-CIO representatives of such employees.
 
    WE WILL NOT fail and refuse to consult in good faith with the
 American Federation of Government Employees, Local 1923, AFL-CIO, the
 exclusive bargaining representative, by bypassing designated Union
 representatives of employees and furnishing or delivering grievance
 decisions or other responses only to the employee grievants.
 
    WE WILL NOT fail and refuse to comply with the backpay grievance
 procedures in Article 22, Section H of our collective bargaining
 agreement with American Federation of Government Employees, Local 1923,
 AFL-CIO by refusing to meet with the Union, upon request, at Step 3 to
 discuss our employees' backpay grievances.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL furnish or deliver all decisions or other responses to
 grievances to designated American Federation of Government Employees,
 Local 1923, AFL-CIO representatives at the same time they are furnished
 or delivered to employee grievants.
 
    WE WILL abide by the backpay grievance procedures in Article 22,
 Section H of our collective bargaining agreement with American
 Federation of Government Employees, Local 1923, AFL-CIO.
                                       (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 its provisions, they may communicate directly with the Regional
 Director of the Federal Labor Relations Authority whose address is:
 1111 18th Street, NW., Suite 700, Washington, D.C. 20036 and telephone
 number (202) 653-8452.  This Notice refers to Case Nos. 3-CA-2563,
 3-CA-20023, 3-CA-20024, and 3-CA-20179.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) provide:
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /2/ See Internal Revenue Service and Internal Revenue Service,
 Detroit District, 12 FLRA No. 87 (1983);  Harry S. Truman Memorial
 Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983);  U.S.
 Customs Service, Region VII, Los Angeles, California, 10 FLRA 251
 (1982);  Kaiserslautern American High School, Department of Defense
 Dependents Schools, Germany North Region, 9 FLRA 184 (1982).
 
 
    /3/ Id.
 
 
    /4/ The General Counsel's unopposed motion to correct the transcript
 is granted;  the transcript is hereby corrected as set forth therein.
 
 
    /5/ Note the settlement agreement referred to infra.
 
 
    /6/ The backpay grievance disposition form has blocks wherein the
 first, second, and third step officials are to record their findings or
 disposition of the grievance (Jt. Exh. 5;  Tr. 78).
 
 
    /7/ Respondent's brief contends that O'Connel's factual report could
 only have been prepared under the agreement as a Step 2, Section H
 written summary of factual information.  Respondent goes on to state,
 "This summary, however, was misplaced by her typist and inserted into
 that section of Joint Exhibit 5 provided for the first-line supervisor"
 (Respondent's brief, p. 17).  Counsel for the General Counsel has moved
 to strike this portion of the brief on the grounds that, "These
 referenced statements and the conclusions drawn therefrom are not found
 within any testimony, exhibit or offer of proof included in the official
 records of the hearing." The General Counsel's motion is well taken
 insofar as it involves the alleged action by a typist.  The quoted
 portion of the brief, d