20:0749(88)CO - AFGE Local 1923 and SSA, Division of Labor Relations -- 1985 FLRAdec CO



[ v20 p749 ]
20:0749(88)CO
The decision of the Authority follows:


 20 FLRA No. 88
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1923, AFL-CIO
 Respondent
 
 and
 
 SOCIAL SECURITY ADMINISTRATION 
 DIVISION OF LABOR RELATIONS
 Charging Party
 
                                            Case No. 3-CO-40025
 
                            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 further found that the Respondent
 had not engaged in certain other unfair labor practices alleged in the
 complaint, and recommended dismissal of that part of the complaint.
 Thereafter, the Respondent filed exceptions to the Judge's Decision.
 
    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.
 
                                   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 American Federation of Government Employees, Local 1923,
 AFL-CIO, shall:
 
    1. Cease and desist from:
 
    (a) repudiating the November 9, 1983 Settlement Agreement entered
 into with the Social Security Administration wherein it agreed not to
 file a grievance concerning the adverse action taken against Ms.
 Gwendolyn T. Perrin.
 
    (b) In any like or related manner failing to bargain in good faith
 with the Social Security Administration.
 
    2. Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Honor the Settlement Agreement entered into with the Social
 Security Administration on November 9, 1983, wherein it agreed not to
 file a grievance concerning the adverse action taken against Ms.
 Gwendolyn T. Perrin.
 
    (b) Withdraw any pending grievance and/or pending request for
 arbitration predicated on the adverse action taken against Ms. Gwendolyn
 T. Perrin on November 9, 1983.
 
    (c) Post at its business offices and its normal meeting places,
 including all places where notices to members and other employees of the
 Social Security Administration are customarily posted, 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
 President of Local 1923, American Federation of Government Employees,
 AFL-CIO, or a designee, and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to members and other
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (d) Submit appropriate signed copies of such Notices to the
 Administrator of the Social Security Administration, Baltimore,
 Maryland, for posting in conspicuous places where the unit employees are
 located, where they shall be maintained for a period of 60 consecutive
 days from the date of posting.
 
    (e) 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 in Case No.
 3-CO-40025 found not to have violated the Statute be, and it hereby is,
 dismissed.
 
    Issued, Washington, D.C.,November 25, 1985
 
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                 NOTICE TO ALL MEMBERS AND OTHER 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 MEMBERS AND OTHER EMPLOYEES THAT:
 
    WE WILL NOT repudiate the November 9, 1983 Settlement Agreement
 entered into with the Social Security Administration wherein we agreed
 not to file a grievance concerning the adverse action taken against Ms.
 Gwendolyn T. Perrin.
 
    WE WILL NOT in any like or related manner fail to bargain in good
 faith with the Social Security Administration.
 
    WE WILL honor the Settlement Agreement entered into with the Social
 Security Administration on November 9, 1983, wherein we agreed not to
 file a grievance concerning the adverse action taken against Ms.
 Gwendolyn T. Perrin.
 
    WE WILL withdraw any pending grievance and/or pending request for
 arbitration predicated on the adverse action taken against Ms. Gwendolyn
 T. Perrin on November 9, 1983.
                                       ---
                                       (Labor Organization)
 
    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, Region III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, N.W., Room. 700, P.O. Box 33758, Washington, D.C.
 20033-0758 and whose telephone number is:  (202) 653-8500.
 
 
 
 
   
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
  AMERICAN FEDERATION OF GOVERNMENT 
    EMPLOYEES, LOCAL 1923, AFL-CIO
              Respondent
 
    and
 
    SOCIAL SECURITY ADMINISTRATION 
    DIVISION OF LABOR RELATIONS Charging
              Party/Agent
 
    Gregory K. McGillivary, Esquire;  Bruce D. Rosentein, 
    Esquire For the General Counsel
 
    Carl J. Clayton, Esquire For the Charging Party
    Alvin S. Levy, Esquire For the Respondent
 
    Before:  BURTON S. STERNBURG, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to a charge filed on May 11, 1984, by the Social Security
 Administration, Division of Labor Relations, (hereinafter called the
 Charging Party or SSA), a Complaint and Notice of Hearing was issued on
 July 30, 1984, by the Acting Regional Director for Region III, Federal
 Labor Relations Authority, Washington, D.C. The Complaint alleges, in
 substance, that the American Federation of Government Employees, Local
 1923, AFL-CIO (hereinafter called the AFGE or Respondent), violated
 Sections 7116(b)(5) and (1) of the Federal Service Labor-Management
 Relations Statute, (hereinafter called the Statute), by repudiating a
 settlement agreement signed by a duly authorized representative.
 
    A hearing was held in the captioned matter on September 25, 1984, in
 Baltimore, Maryland.  All parties were afforded the full opportunity to
 be heard, to examine and cross-examine witnesses, and to introduce
 evidence bearing on the issues involved herein.  All parties orally
 summed up their respective positions at the hearing and waived the
 submission of post-hearing briefs.  Upon the basis of the entire record,
 including my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions and recommendations.
 
                             Findings of Fact
 
    The American Federation of Government Employees, AFL-CIO is the
 exclusive representative in a national consolidated unit for a majority
 of the employees working for the Social Security Administration.  Local
 1923, AFGE is an agent of the American Federation of Government
 Employees, AFL-CIO, and acts as its representative at the Baltimore,
 Maryland headquarters of the Social Security Administration.  Mr. Robert
 N. Niemeyer is a steward for Local 1923, AFGE.
 
    On September 30, 1983, Ms. Gwendolyn T. Perrin was served with a
 notice of proposed removal from her position as a GS-2010-9 Inventory
 Management Specialist.  The notice of removal from Mr. John Spencer,
 Chief Supply Management Branch, charged Ms. Perrin with (a) failing to
 account for 28 items of Government property valued at $26 which she
 purchased at the Self Service Store, and (b) taking Without
 authorization and for non-official use, 28 items of Government property
 from the Self Service Store valued at $26.  The removal action was to
 take place 30 days from Ms. Perrin's receipt of the notice of proposed
 removal.
 
    The notice of proposed removal further informed Ms. Perrin, among
 other things, that she had the right to respond to the proposed removal
 action within 20 days.  Any response was to be made by Ms. Perrim or her
 duly authorized representative to Mr. Donald E. Devine, Director
 Division of Property Management.  According to the record, Mr. Devine's
 decision on the matter was to be the final one.
 
    On or about October 19, 1983, Ms. Perrin and her representative,
 Local 1923, AFGE steward Robert Niemeyer met, with Mr. Devine for
 purposes of presenting a written rebuttal to the charges contained in
 the proposed removal action.  During the meeting Mr. Niemeyer claimed
 Ms. Perrin was innocent of the charges and that it was his intent to
 fight the case all the way.  In support of his position he orally set
 forth what was contained in the written rebuttal.  Inasmuch as the
 written rebuttal was a lengthy document, Mr. Devine informed Ms.
 Niemeyer that it would take him, Mr. Devine, considerable time to review
 the written rebuttal and that he would get in touch with him at a
 subsequent date.
 
    On approximately November 1, 1983, after interviewing some seven
 other employees who had either been mentioned in Ms. Perrin's written
 rebuttal or had been mentioned during the interviews of the employees
 named in the written rebuttal, Mr. Devine again met with Mr. Niemeyer.
 Mr. Devine informed Mr. Niemeyer that after reviewing the matter he was
 of the opinion that a removal action was not warranted.  In place of the
 removal action, Mr. Devine stated that he would be satisfied with giving
 Mr. Perrin a 14 day suspension provided that she would agree not to
 further grieve the matter.  When Mr. Niemeyer objected to the 14 day
 suspension as being too severe, Mr. Devine agreed to consider the matter
 further and get back to Mr. Niemeyer.  /1/
 
    Approximately two days later Mr. Devine telephoned Mr. Niemeyer and
 informed him that he had reconsidered the matter and decided to reduce
 the penalty to a one day suspension provided that Mr. Perrin "would not
 further grieve the action." Mr. Niemeyer replied that he would have to
 discuss the matter with Mr. Perrin.  Shortly thereafter Mr. Niemeyer
 telephoned Mr. Devine and advised him that Mr. Perrin wished to talk to
 Mr. Devine.
 
    On November 5, 1983, Mr. Perrin met with Mr. Devine and told him that
 she was of the opinion that the penalty was too severe.  She further
 informed him that she wanted to keep her record clean and hoped that "it
 would not be blemished by the one-day suspension." Mr. Devine stuck to
 his guns and told Ms. Perrin that in his opinion a penalty was
 warranted.
 
    ON November 9, 1983, Mr. Devine issued a one day suspension to Ms.
 Perrin.  On the same day Mr. Devine and Mr. Niemeyer signed a document
 entitled Settlement Agreement.  The Settlement Agreement reads as
 follows:
 
       In accordance with the agreement reached between Ms. Gwen Perrin,
       her Union representative, Mr. Robert Niemeyer and Mr. Donald
       Devine, the following is agreed to:
 
          1. The Pending Removal action will be reduced to a 1 calendar
       day suspension, and
 
          2. Ms. Perrin hereby waives any and all rights to grieve the
       action further or take the action before an arbitrator.
 
    Thereafter, by a "standard Grievance Form" dated December 1, 1983,
 Local 1923, AFGE by its agent, Alvin Levy, filed a grievance over Mr.
 Perrin's one day suspension.
 
    Subsequently, by a memorandum dated December 7, 1983, Local 1923,
 AFGE, by its agent, Arnold Spivak, notified the Social Security
 Administration that it was invoking arbitration with respect to the
 grievance predicated on Ms. Perrin's one day suspension.
 
                        Discussion and Conclusions
 
    There is no substantial disagreement with the facts as reported
 above.  Thus the Union admits that it signed the settlement agreement
 wherein it waived its right to file any further grievances over the
 matter of the adverse personnel action involving Ms. Perrin and then
 immediately thereafter proceeded to file a grievance and request
 arbitration based thereon.
 
    In defense of its action, the Union takes the position that it was
 entitled to repudiate the agreement since it was based on economic
 coercion.  According to the Union, the economic coercion was the
 alternative of accepting Mr. Devine's offer or having Ms. Perrin, a
 single parent with three children to support, without compensation for
 the extended period of time it would take to process a grievance through
 arbitration.  Since Ms. Perrin could not afford to be without funds for
 such a considerable period of time the Union was forced to accept the
 Agency's offer of a one day suspension and waive any further grievance
 proceedings on the matter.
 
    While I am sympathetic to the Union's position with respect to the
 financial problems Ms. Perrin could expect to encounter if she was
 subjected to an extended period of unemployment, I am constrained to
 find that such anticipated financial problems are not a sufficient basis
 for excusing to the Union's action in completely repudiating the
 settlement agreement.  The problem faced by the Union on Ms. Perrin's
 account, i.e, to settle or fight, is no different from that encountered
 by other plaintiffs in the legal arena who believe that they have been
 wronged but opt to settle in lieu of costly and time consuming
 litigation.  I have not been shown, nor has my research disclosed, any
 case precedent to support the Union's position.
 
    Accordingly, I find that the Union's action in filing a grievance and
 seeking arbitration with respect to Ms. Perrin's one day suspension
 constituted a complete repudiation of the settlement agreement in
 violation of Section 7116(b)(5) of the Statute.  Cf.  Great Lakes
 Program Service Center, social security Administration, Department of
 Health and Human Services, Chicago, Illinois, 9 FLRA No.7.58.
 
    Although neither party has addressed the matter, I cannot find that
 the Union's refusal to bargain herein also constituted a derivative
 7116(b) (1) violation of the Statute.  This is particularly true herein
 where the only employee affected by the Union's action, i.e., Ms.
 Perrin, benefited from such action.  While not controlling, it is noted
 that the NLRB has reached a similar conclusion in the private sector.
 National Maritime Union of America, 78 NLRB 971 at 985;  enf. 175 F.2d
 686;  cert. denied 338 U.S. 954.  Accordingly, it is hereby recommended
 that the 7116(b)(1) allegation be dismissed in its entirety.
 
    In view of the above finding, it is hereby recommended that the
 Federal Labor Relations Authority issue the following Order designed to
 effectuate the purposes and policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 242.3.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the American Federation of Government Employees, Local 1923,
 AFL-CIO, shall:
 
       1. Cease and desist from:  (a) Repudiating the November 9, 1983
       Settlement Agreement entered into with the Social Security
       Administration wherein it agreed not to file any grievances
       concerning the adverse action taken against Ms. Gwendolyn T.
       Perrin.  (b) In any like to related manner failing to bargain in
       good faith with the Social security Administration.
 
          2. Take the following affirmative action in order to effectuate
       the purposes and policies of the Stature.  (a) Honor the
       settlement Agreement entered into with the Social Security
       Administration of November 9, 1983, wherein it agreed not to file
       any grievances concerning the adverse action taken against Ms.
       Gwendolyn T. Perrin (b) Withdraw all pending grievances and/or
       pending requests for arbitration predicated on the adverse action
       taken against Ms. Gwendolyn T. Perrin on November 9, 1983.  (c)
       Post at the Social Security Administration Headquarters in
       Baltimore, Maryland, copies of the attached Notice on forms to be
       furnished by the Federal Labor Relations Authority.  Upon receipt
       of such forms, they shall be signed by the President of Local
       1923, American Federation Government Employees, AFL-CIO, and shall
       be posted and maintained by him for 60 consecutive days thereafter
       in conspicuous places, including all bulletin boards and other
       places where notices to employees are customarily posted.  The
       President shall take reasonable steps 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.
                                       (s)---
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  November 6,1984
    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 repudiate the November 9, 1983, Settlement Agreement
 entered into with the Social Security Administration wherein we agreed
 not to file any grievances concerning the adverse action taken against
 Ms. Gwendolyn T. Perrin.
 
    WE WILL NOT in any like to related manner fail to bargain in good
 faith with the Social Security Administration.
 
    WE WILL honor the Settlement Agreement entered into with the Social
 Security Administration on November 9, 1983, wherein we agreed not to
 file any grievances concerning the adverse action taken against Ms.
 Gwendolyn T. Perrin.
 
    WE WILL withdraw all pending grievances and/or pending requests for
 arbitration predicated on the adverse action taken against Ms. Gwendolyn
 T. Perrin on November