18:0511(69)CA - SSA and AFGE -- 1985 FLRAdec CA
[ v18 p511 ]
The decision of the Authority follows:
18 FLRA No. 69 SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 3-CA-1960 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge found further that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of that portion of the complaint. Thereafter, the Respondent filed exceptions to the Judge's Decision, and a supporting brief, and the Charging Party filed an opposition to the Respondent's exceptions, and a supporting brief. /1/ 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, /2/ conclusions and recommended Order, as modified herein. In adopting the Judge's Decision, the Authority agrees that the Respondent failed to bargain in good faith with the Union at the national level, the level of exclusive recognition, regarding the procedures to be observed and appropriate arrangements for employees adversely affected by implementation of its Quality Improvement Project (QIP). See Department of Health and Human Services, Social Security Administration, 10 FLRA 77 (1982) and Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981). Upon finding a violation, the Judge recommended that a status quo ante remedy be ordered, and the Respondent excepted to the imposition of such remedy. Contrary to the Judge, the Authority concludes that a status quo ante remedy is not warranted. Thus, balancing the nature and circumstances of the violation against the degree of disruption in government operations that would be caused by such a remedy, and taking into consideration the various factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982), the Authority concludes that such remedy would not effectuate the purposes and policies of the Statute. In this regard, the Respondent gave the Union adequate notice of its intention to implement its QIP and the opportunity to request negotiations. Further, upon the Union's request to bargain over the impact and implementation of the QIP, the Respondent voluntarily suspended all QIP actions pending negotiations and thereafter met with the Union. Finally, the Authority finds that the object of the QIP, to ensure uniformity of quality improvement in order to enhance the effectiveness of the Respondent's operations, is an important management objective which would be significantly impaired by a return to the status quo. See Department of the Treasury, Internal Revenue Service, Jacksonville, Florida, 15 FLRA No. 187 (1984). Although the Authority notes, as found by the Judge, that in all the circumstances such meeting did not amount to bargaining in good faith, after balancing the nature and circumstances of the violation against the degree of disruption in the Respondent's operations that would be caused by a status quo ante remedy, and taking into consideration the factors set forth in Federal Correctional Institution, supra, the Authority concludes that such remedy is not warranted in the particular circumstances of this case. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Social Security Administration, Baltimore, Maryland, shall: 1. Cease and desist from: (a) Unilaterally implementing its Quality Improvement Project without bargaining in good faith with the American Federation of Government Employees, AFL-CIO, its employees' exclusive representative, at the level of exclusive recognition, concerning procedures to be observed and appropriate arrangements for employees adversely affected by the implementation of such program. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Notify the American Federation of Government Employees, AFL-CIO, concerning any planned Quality Improvement Project, and, upon request, negotiate in good faith with the exclusive representative concerning procedures to be observed and appropriate arrangements for employees adversely affected by the implementation of the Quality Improvement Project. (b) Post at its Office of Assessments 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 an appropriate representative of the Respondent and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such 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 portion of the complaint found not to have violated the Statute, be, and it hereby is, dismissed. Issued, Washington, D.C., June 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., 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 unilaterally implement a Quality Improvement Project without bargaining in good faith with the American Federation of Government Employees, AFL-CIO, our employees' exclusive representative, at the level of exclusive recognition, concerning procedures to be observed and appropriate arrangements for employees adversely affected by the implementation of such program. 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 notify the American Federation of Government Employees, AFL-CIO, concerning any planned Quality Improvement Project, and, upon request, negotiate in good faith with the exclusive representative concerning procedures to be observed and appropriate arrangements for employees adversely affected by the implementation of the Quality Improvement Project. (Activity) Dated: By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8456. -------------------- ALJ$ DECISION FOLLOWS -------------------- Francis X. Dippel Jack Goodman Carl Clayton For the Respondent Clara M. Williamson For the General Counsel Before: ELI NASH, JR., Administrative Law Judge DECISION Statement of the Case This case arose pursuant to the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called the Statute), as a result of an unfair labor practice Complaint and Notice of Hearing issued April 30, 1981 by the Regional Director, Region 3, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Social Security Administration hereinafter called "the Respondent" violated Section 7116(a)(1) and (5) of the Statute by engaging in a course of conduct designed to circumvent its bargaining obligation at a national level with American Federation of Government Employees, AFL-CIO, herein called "the Union"; and violated Section 7116(a)(1) of the Statute by failing to properly respond to the Union's request for information submitted on September 8, 1980. Respondent's answer denied the commission of any unfair labor practices. A hearing in this matter was conducted before the undersigned in Baltimore, Maryland. All parties were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Briefs were filed and have been duly considered. Upon the entire record in this matter, including my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following findings of facts, conclusion and recommendations. Findings of Fact 1. On or about August 30, 1979, the Union was certified as the exclusive bargaining representative for all non-supervisory Social Security employees, in a national consolidated unit. The National Council of Social Security Field Assessment Locals, hereinafter called "the Council", has held national exclusive recognition for approximately 600 employees nation-wide in the Office of Assessment since 1978. /3/ Nine local unions comprise the Council. 2. Sometime around April 29, 1980, Respondent sent a proposed Quality Improvement Project, hereinafter referred to as "the QIP", to the Union. Basically the QIP is a system which established additional reviews, procedures for Quality Review Specialist employees in the Office of Assessment by both supervisors and other Quality Review Specialists. The Union was concerned with the potential adverse effect on Quality Review Specialists by such additional reviews; that position descriptions of Quality Review Specialists did not provide that they would be required to review the work of other Quality Review Specialists, and to this extent, the QIP imposed additional job duties on bargaining unit employees which were not contained in their official position descriptions. 3. The Union had been first advised of the proposed QIP in early May, 1979. On June 20, 1979, the Union submitted comments to the proposed QIP and made a request to negotiate on all aspects of the proposed program. The Union heard nothing further about QIP until March 1980, when several local unions contacted the Council President, Earl Tucker to ask whether he knew anything about the implementation of QIP. Tucker then contacted Respondent where he learned that the current QIP package had already been transmitted to the Field Assessment Officers and to the Union. However, the Union did not receive a copy of the document until around May 9, 1980. In a covering memorandum to Tucker dated April 29, 1980 Respondent stated: Since the formulation of the plans is a regional activity, I feel that dialogue between management and the union be left to the appropriate FAO managers, and AFGE locals. Therefore, I have instructed FAO management to meet and negotiate with the appropriate AFGE locals . . . The Union responded to the proposed QIP by letter dated May 9, 1980, in which it demanded to negotiate the QIP at the national level and that no action be taken in any region to negotiate or implement any aspect of the QIP until national negotiations had been completed. 4. Respondent replied to the May 9, 1980 demands by memorandum of June 13, 1980, which stated: We have reviewed your memorandum regarding the Quality Improvement Project (QIP). While we do not believe that all aspects of the Project are negotiable, we recognize that there could be elements of the QIP with impact on conditions employment which are appropriate for negotiation at the Associate Commissioner/National Council level. 5. Around September 8, 1980, the Union submitted its proposals concerning the impact and implementation of the QIP and requested a "rather lengthy and detailed study, including much QAFO/QASO input . . ." which was specifically referred to in the proposed QIP submitted to the Union under the section entitled "Ongoing Reviews", under Tab II. 6. About November 3, 1980, the Union received a memorandum from Respondent stating that impact bargaining on the QIP and the ground rules for mid-term bargaining on the national agreement would be held at Respondent's headquarters on November 18 and 19, 1980. Upon receipt of that memorandum, Tucker contacted Respondent's Chief Negotiator, Martin Mettee, to complain that Respondent was unilaterally establishing time frames for negotiations, which was improper as they were equal partners and the dates for negotiations should have been mutually decided. 7. On November 10, 1980, Respondent replied to the Union's proposals submitted on September 8, 1980. In regard to the Union's request for information received from Field Assessment Office Components, Respondent stated that this information was adequately explained in the covering memorandum of the QIP Package of February 26, 1980 and in the package itself. In this memorandum, Respondent also stated that its position had been upheld by the Federal Labor Relations Authority in Case 3-CA-1407. In that case the Regional Director found that further proceedings were unwarranted since the Union's request for the information appeared to be vague and overbroad. That case, however, concerned only the information requested in item 1 of the Union's letter of July 17, 1980. In its memorandum, Respondent failed to identify which of the Union's proposals it contended were nonnegotiable, but instead indicated that some of such proposals concerned the substance of the QIP. On November 14, 1980, the Union requested that Respondent identify which proposals it felt were nonnegotiable. By memorandum dated November 17, 1980, Respondent answered the Union's request saying, "By 'substance' we mean all of the guidelines outlined in the QIP package dated February 26, 1980." Respondent added that it would not provide the Union with the additional information requested, as in its estimation any more than the basic QIP was irrelevant to impact and implementation bargaining. The union apparently did not respond to this statement. 8. The Union's Chief Negotiator for QIP, Barbara Weller, whose duty station is San Francisco, California received a telephone call from Respondent's Chief Negotiator, Martin Mettee, on or about September 24, 1980, during which Mettee informed her that Respondent was prepared to negotiate on ground rules and asked if the Union would be willing to negotiate on the QIP at the same time. After discussing this matter with Council President Earl Tucker, Weller contacted Mettee and stated that the Union would agree to go ahead and negotiate QIP, but that they would have to have at least one day or one half day following negotiations on the ground rules before negotiations on the QIP commenced. Mettee informed her that this would be fine, and there would be no problem. Weller also asked, when Respondent would reply to the September 8, 1980 Union proposals, and he stated that the response would be forthcoming within a week or so. Mettee again contacted Weller during the latter part of October, 1980 and stated that Respondent was setting up November 18 and 19, 1980 as dates for negotiations. Weller voiced concern that Respondent was limiting the Union's negotiating time and that the Union would need additional time following negotiations on the ground rules in order to prepare for QIP negotiations. Weller reminded Mettee that the Union had not received a response to its proposals and that it would be necessary to know Respondent's position in order to even prepare for negotiations. In addition, Weller informed Mettee that the Union might need more time than November 18 and 19, to which he replied, there would be no problem if they needed to extend the time. 9. On November 6, 1980, Weller received Respondent's memorandum scheduling the negotiations for November 18 and 19, 1980. Weller then contacted Mettee and informed him that the Union would need more time than two days for the negotiations. Mettee told her that those were tentative dates, that the Union would not have to worry about getting additional time and that the travel orders could be amended. Weller again informed Mettee that the Union had not received its response. She explained to him that November 11, 1980 was a holiday and that she was going to Los Angeles, California to conduct training on Thursday and Friday of the following week. Weller subsequently received Respondent's response on November 10, 1980. 10. Negotiations on the ground rules began at approximately 9:00 a.m. on November 18, 1980 and were completed at approximately 2:30 p.m. Discussions on the QIP began shortly thereafter at approximately 3:00 p.m. The Union was allowed an additional person for the QIP negotiations, and Barry Nelson joined the Union's negotiating team during the afternoon of November 18, 1980. The QIP was discussed for approximately one hour during which time Respondent provided some general information to the Union concerning the QIP. The parties adjourned negotiations at approximately 4:00 p.m., and the Union went into caucus to work on additional QIP proposals, based on information it had gained during the afternoon discussions. The Union negotiators worked on these proposals into the evening and returned to caucus at approximately 8:00 a.m., the following morning. 11. At approximately 9:30 a.m. on November 19, 1980 the Union negotiating team informed President Earl Tucker, who was not a member of the QIP negotiation team, but was at the National Office to negotiate the ground rules, that they had not finished work on the proposals. Tucker almost immediately thereafter contacted Bill Wolfe, a member of the Respondent's negotiating team, and explained that the Union's negotiating team was still in caucus and would not be available at 10:00 a.m. Tucker stated that the Union would attempt to be ready by 12:30. Tucker also explained to Wolfe that there was a minor problem with the ground rules which he had seen on the evening of November 18, 1980 but, that only a cosmetic change needed to be made, and Wolfe replied that it would be no problem. Barry Nelson, a member of the Union negotiating team received a telephone call from Bill Wolfe in the Union's caucus room at approximately 12:30 p.m. during which Wolfe asked where the Union negotiating team was. Nelson informed him that they were in the caucus room preparing counterproposals based on information received the day before. Wolfe ordered the Union to have someone back at the table by 1:00 p.m. Wolfe then stated that the members of the Union negotiating team had travel orders to be at negotiations, that they were supposed to be at negotiations, and that they only had the rest of the day to reach agreement because the travel orders required that the Union team return to their duty stations the following day. He also stated that if they were not in travel status the following day, they would be placed on AWOL. Nelson then told Wolfe that his understanding was that additional time would be granted if necessary and that he felt it improper for Respondent to try to coerce the Union into reaching an agreement by imposing artificial deadlines. Nelson warned that Respondent did not have the right to limit the Union's caucus time. At this point, Tucker entered the room and requested to speak with Wolfe. Tucker informed Wolfe that the team was still caucusing. Wolfe responded that management was waiting and wanted to resume negotiations. Tucker stated that he wanted to talk with Wolfe about the ground rules in order to make the cosmetic changes required in order to bring the agreement in conformance with law. Tucker, Nelson and another member of the negotiating team then went to the negotiation room. Tucker pointed out that Respondent was ordering the Union team around and trying to control the whole process. Tucker explained that the Union wanted several changes in the ground rules including changes concerning official time being granted for negotiators only at the negotiating table. The Union wanted the rules altered to reflect that official time, travel, and per diem would continue through procedures before the Impasses Panel. The Union also wanted to add a provision to reflect that either party could caucus. Respondent's team then caucused for about 5 minutes regarding these requested changes and returned stating that they could not agree to those changes and that the negotiations were at impasse. Respondent requested to resume negotiations on the QIP, however, Tucker informed them that, in light of prior experience with Respondent, he would not subject his team to negotiations without ground rules. 12. Although Tucker stated that he would attempt to contact a mediator, he was unable to do so that day. He called Mettee at about 3:00 p.m. but, was unable to talk with him until around 4:00 p.m. During this conversation, Tucker informed Mettee that although he had been unable to obtain a mediator, the Union had reconsidered its position and would negotiate on the QIP before the ground rules were finalized. Mettee then informed Tucker that the management team had gone home. Tucker requested that they resume negotiations on the QIP the following day at 9:00 a.m. Mettee stated that would be impossible since Respondent's team would be attending a going-away party for negotiator Bill Wolfe on that day. The Union then received a memorandum from Respondent dated November 19, 1980, ordering the Union negotiators to return to their official duty stations, since it concluded that only two days had been allotted for these negotiations. The Union responded on November 20 that the agreement to conclude negotiations in only two days was tentative. The Union contended that additional time would be granted if the negotiations were not completed in two days and that refusal to grant additional time was in bad faith. 13. Thereafter, the problem with the ground rules were subsequently resolved in a 5 minute telephone conversation between Earl Tucker and an agency representative on November 20, 1980. Language was added that either party could caucus and that the agreement would be in accord with the Civil Service Reform Act. 14. The Union replied to the above memorandum on November 20, 1980, emphasizing that the setting of two days for negotiations was tentative and that the Union had been told that additional time would be granted, if necessary. The Union also emphasized that curtailment of its caucus time constituted bargaining in bad faith. The Union submitted additional proposals along with this memorandum. 15. Respondent thereafter distributed a memorandum dated December 23, 1980, to its Field Assessment Offices entitled "Resumption of the Quality Improvement Project-- Action". This memorandum stated, in pertinent part: As you are probably aware, discussions with the National Council of SSA Field Assessment Locals regarding the impact and implementation of the Quality Improvement Project (QIP) were broken off on November 19, 1980, for a variety of reasons, most notably a lack of concrete proposals. Since that time, the Council has submitted additional proposals which will be addressed at a later time. Management feels that it has met its obligation to meet with the Union on a national basis and feels no obligation to delay further development of local QIP plans. Therefore, effective immediately, my memo of June 2, 1980, suspending the QIP is rescinded. Preparations should commence for developing local QIP plans as instructed in my memo of February 26, 1980. From the beginning it has been my contention that since QIP plans are to be developed by field managers and tailored to the needs of individual components, management's obligation to negotiate with the Union regarding the impact of any changes in personnel policies, practices, and procedures which may result from the plans, as well as the procedures for implementation, should be undertaken at the local level. I trust that your field managers will meet with the appropriate local Union representatives prior to the implementation of their QIP plans. 16. By memorandum dated January 26, 1981, Respondent answered Union proposals submitted on November 20, 1980. This memorandum stating that: It has always been our contention that negotiations on the impact and implementation of the QIP are more appropriate at the local level since each QIP plan will be tailored to the needs and requirements of each office . . . 17. On January 26, 1981, the Union replied to Respondent's memorandum of December 23, 1980, demanding that the parties return to the bargaining table on the QIP. On or about February 10, 1981, the Union received a memorandum from Respondent entitled "Resumption of the Quality Improvement Project (Your Memo dated January 26, 1981) Information," which stated in pertinent portions: As you are aware, we directed our Field Assessment Offices to resume efforts toward the development of Quality Improvement Project (QIP) plans by memo dated December 23, 1980. Our plans are unchanged. We do not believe that resuming formal negotiations on the matter is appropriate . . . . As you know, we did agree to some of your proposals. Others, however were issues which we explained were either not negotiable or were more appropriate for bargaining at the local level . . . regarding the appropriate bargaining level, it has been our position from the beginning that the impact and implementation of QIP plans is more appropriate at the level where the plans are to be developed and implemented . . . we have instructed our FAO's to carry on negotiations with the appropriate local Union officials . . . 18. On or about February 3, 1981, Barry Nelson called Martin Mettee and inquired if Respondent intended to implement the QIP. Mettee informed Nelson that Respondent's intention was to implement. Nelson requested that Respondent not implement the program and return to the bargaining table, that the Union thought they had something to negotiate, and that the Union was willing to negotiate and reach agreement which would be satisfactory to all parties. Nelson stated that Respondent was going to implement and would not return to the bargaining table. Discussion and Conclusions It is conceded by Respondent that it had an obligation to bargain about the impact and implementation of the QIP at the national level. Respondent however, contends that it did everything conceivable to comply with its obligation to negotiate the impact and implementation of the QIP including giving the Union the QIP package almost two years in advance of the proposed implementation; withdrawing and revising the all-inclusive QIP package to include concerns from the Union; reissuing the revised QIP package and arranging for negotiations of any further counter-proposals; arranging time, place and travel for Union negotiators; meeting with the Union at the prearranged date and time; offering no counter-proposals during the prearranged dates; and its considering non-negotiable counter-proposals offered two days after the parties disbanded. Respondent also points out that the QIP was implemented in only three of ten regions involved. On the other hand, the General Counsel maintains that Respondent, engaged in surface bargaining at the national level and did not approach negotiations with any resolve to reach agreement. The General Counsel argues that Respondent sought to bargain concerning QIP at the local level and that its action at the national level bargaining sessions of November 18 and 19, 1980 were a sham designed to cover its real motive. The record clearly shows that despite the fact that a certification of consolidated unit issued in August 1979, Respondent was insistent that negotiations were more appropriate at the local level and that the Union sought to bargain at least the impact and implementation of QIP at the national level. Thus, the record indicates that both before and after the November negotiations Respondent made no secret that it felt that QIP negotiations should be at the local level and ignored Union exhortations to the contrary. The pivotal question here is whether Respondent's conduct herein was designed to circumvent the national obligation to negotiate and channel bargaining on QIP to the local level. It is hornbook law that an employer does not meet its obligation to bargain merely by meeting with the representative of its employees. Either party to a bargaining relationship must maintain the intention of reaching a negotiated agreement. Moreover, if no single aspect of an employer's conduct violates that duty, the totality of the conduct may be indicative of bad faith bargaining. The record demonstrates that Respondent was convinced that bargaining on the QIP was a local matter although the Union steadfastly disagreed. The totality of Respondent's conduct must be carefully weighed. Section 7103(12) of the Statute defines collective bargaining in terms of the "mutual obligation" of the parties to consult and bargain in good faith. The legislative history of the State reflects the goal of bringing balance and mutual responsibility to the union-management relationship in the Federal sector. Thus, the collective bargaining relationship envisioned by the Statute requires that each party have the ability to function as an equal partner within the relationship. The Authority has made it clear that each party shall deal with the other with directness and dignity appropriate to partners on an equal footing. United States Air Force, Air Force Logistics Command Aerospace Guidance and Meteorology Center, Newark, Ohio, 4 FLRA No. 70 (October 24, 1980). In this matter Respondent, among other things, unilaterally set the dates for negotiations, which should have been by mutual agreement, imposed deadlines on the submission of proposals, during negotiations sought to limit the Union's caucus time and refused to return to the bargaining table on the matter after negotiations were disbanded. It is noted that the Union complained about Respondent's unilateral setting of the time frame for negotiations and admonished, on more than one occasion, that it might need more time for negotiations. Respondent prior to negotiations assured the Union that more time would not be a problem. However, once negotiations began Respondent took an adamant stand on the time issue, because in its opinion there was agreement for only two days of negotiations. The record does not support Respondent's position in that respect and it is found, contrary to Respondent's argument, that there was no agreement that negotiations would last only two days, but that it was agreed prior to negotiations that additional time would be granted to the Union, if necessary. Further, Respondent sought to supervise the Union's use of time during the negotiations, interrupted Union caucuses and, in fact, appeared to be attempting to supervise the Union's efforts. Respondent after pressuring Union negotiators to submit counterproposals and demanding that it return to the bargaining table, suddenly announced that one of the reasons it could not continue negotiations on the following day was because its negotiators had to attend a going-away party. Respondent's unwillingness to yield on the time issue while insisting that negotiations take place at times and places unilaterally established by its team and its attempts to supervise Union negotiators time during negotiations is a significant factor in determining whether its conduct resulted in a good faith effort to bargain over the QIP issue. Moreover, Respondent's insistence that QIP negotiations be conducted at the local level despite the Union's claim that there were matters to be discussed at the national level regarding impact and implementation shows a clear predilection on the matter, also indicating a lack of good faith effort to bargain at the national level concerning the QIP. The record shows that throughout negotiations, Respondent attempted to limit the Union's caucus time and to apply pressure to the Union's negotiation team, pointing out that negotiations had been set for two days; referring to caucus time as a waste of time; telling the Union to return to the bargaining table; stating that valuable time was being wasted; reminding the Union that expenses for the Union negotiation team were being paid by management and that their absence from the bargaining table represented a breach in good faith bargaining; and, disbanding negotiations and refusing to return to the bargaining table. In all the circumstances of this case, I agree with the General Counsel that caucus time was part of the negotiation process and that it was improper for Respondent to interfere with that time or to attempt to supervise Union negotiators. Respondent showed no reason why Union negotiators could not have been allowed sufficient time to formulate acceptable counter-proposals, that the Union negotiators misused their time or that the time for negotiation could not have been extended pursuant to the parties prior agreement. In fact, it appears that the management negotiators were more concerned with adherence to the unilaterally established time frames than with engaging in meaningful bargaining over the QIP. In this regard, management information on the QIP was given to the Union on the evening of November 18 and Union negotiators worked into the late hours of that evening formulating counterproposals, but did not complete the task. When the Union returned the following morning to work on counterproposals it had very little opportunity to do so because of constant management interference because of the time frame. It is difficult to see how any meaningful counterproposals could have been formulated when the Union negotiators were being required to answer for all time spent in caucus. Such conduct on Respondent's part clearly evinces a misconception as to its role in the collective bargaining relationship. Based on the totality of Respondent's conduct, it appears that it had no intention of arriving at any agreement concerning the QIP at these negotiations or that it intended to reach any agreement concerning the QIP during the November negotiations at the national level, but that these meetings constituted surface bargaining over the matter. Accordingly, it is found that Respondent's entire course of conduct was not tied to the realities of the bargaining situation herein, and is violative of Section 7116(a)(5) and (1) of the Statute. Having argued that it had fulfilled the obligation to bargain at the national level, Respondent contends that it found itself dealing with "unprepared union negotiators" who showed a lack of organization and preparation during negotiations and who sought to delay actual negotiations. This argument is unpersuasive. The record established that the Union, once it received Respondent's information regarding the QIP, worked diligently within the unilaterally established time frame to formulate counterproposals acceptable to both sides. The Statute requires parties to "meet at reasonable times . . . and to avoid unnecessary delay." Record evidence shows that the Union sought to conform with this requirement. There is no showing that it engaged in dilatory or evasive tactics but, only that it needed time during negotiations to respond to information submitted by Respondent. Respondent's submitting information on the QIP one afternoon and expecting a quick response that next day concerning fairly complex proposals from Union representatives, who had been brought from all over the country, to deal with management representatives stationed in the national office points out the absurdity of Respondent unilaterally placing severe time restrictions for negotiations on the Union. It is also found that Respondent's contention that the QIP was implemented in only three of its ten regions is immaterial to the proceedings. The question in this matter was not whether the QIP was in place when negotiations occurred in November 1980, but whether Respondent met its bargaining obligation concerning impact and implementation at the national level. Furthermore, there is no denial by Respondent that the QIP was implemented prior to any national negotiations on the matter. The General Counsel asserts that Respondent failed to properly respond to the Union's request for information submitted on September 8, 1980. The General Counsel's theory in this regard is that a refusal to supply such information reflected on Respondent's entire course of conduct in this matter. I do not agree. Respondent advised the Union that it would not provide the information, as it felt it was irrelevant to impact and implementation bargaining on the QIP. In order to obtain such information a union must show that it is necessary and relevant for it to perform its bargaining duties. No such showing is made on this record. Neither is it clear that lack of the requested information contributed to the Union's alleged unpreparedness during the November 18 and 19 bargaining sessions, therefore, any finding that such was necessary or relevant would be purely speculative. Accordingly, it is recommended that the Section 7116(a)(1) violation based on refusal to supply the information requested by the Union on September 18, 1980 be dismissed. Having found that Respondent instituted the Quality Improvement Project without bargaining with the Council concerning the impact and implementation of such program, I conclude that Respondent violated Section 7116(a)(5) and (1) of the Statute. Having further found that Respondent did not violate Section 7116(a)(1) of the Statute by failing to furnish certain information to the Council concerning the Quality Improvement Project, I recommend that the Authority adopt the following Order. ORDER Pursuant to 5 U.S.C. 7118 and Section 2423.26 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg. 3482, 3510 (1980), it is hereby ordered that the Office of Assessments, Social Security Administration, Baltimore, Maryland, shall: 1. Cease and desist from: (a) Unilaterally implementing the Quality Improvement Program without bargaining in good faith with exclusive representative, the American Federation of Government Employees, AFL-CIO, or any other exclusive representative, and affording it an opportunity to bargain on the implementation and impact of the program. (b) In any like or related manner, interfering with, restraining, or coercing any employee in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Statute: (a) Revoke the Quality Improvement Program. (b) Upon request bargain with the American Federation of Government Employees, AFL-CIO, or any other exclusive representative concerning the impact and implementation of the Quality Improvement Program on employees adversely affected. (c) Post at its Offices of Assessments, Regional Offices, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 3, after being signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 30 days from the date of this order, what steps it has taken to comply herewith. ELI NASH, JR. Administrative Law Judge Dated: February 25, 1982 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 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally implement a Quality Improvement Project without bargaining in good faith with the exclusive representative, the American Federation of Government Employees, AFL-CIO, or any other exclusive representative, and affording it an opportunity to bargain on the implementation and impact of the program. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. WE WILL revoke the Quality Improvement Program. WE WILL upon request bargain with the American Federation of Government Employees, concerning the impact and implementation of the Quality Improvement Program on adversely affected employees. (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 its provisions, they may communicate directly with the Regional Director, Region 3 for the Federal Labor Relations Authority whose address is: 1111 18th Street, Suite 700, Washington, D.C. 20036 and whose telephone number is: (202) 653-8452. --------------- FOOTNOTES$ --------------- /1/ The General Counsel moved to strike portions of the Respondent's brief in support of its exceptions on the grounds that the brief failed to identify the specific page reference to the transcript as required by section 2423.28(a)(3) of the Authority's Rules and Regulations. The motion is denied because the General Counsel has not demonstrated any prejudice as a result of this technical defect. /2/ In adopting the Judge's dismissal of the alleged section 7116(a)(1) violation regarding a refusal to supply information, the Authority notes particularly that no exceptions were filed concerning such finding. /3/ The Office of Assessment has as one of its primary responsibilities the development and maintenance of assessment activities designed to assure the quality of benefit payments and continuing eligibility in all Social Security programs.