20:0768(90)CA - SSA BALTIMORE, MARYLAND and AFGE, LOCAL 1501, AFL-CIO -- 1985 FLRAdec CA
[ v20 p768 ]
The decision of the Authority follows:
20 FLRA No. 90; SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and Case No. 9-CA-30346 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501, AFL-CIO Charging Party DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel 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 to the extent consistent herewith. The Authority finds, in agreement with the Judge, that the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it implemented a reorganization of the Supplemental Security Income (SSI) Post Entitlement (PE) Unit at its South Seattle Branch Office on March 7, 1983. The Respondent gave the Union on February 28, 1983, timely notice of its intention to implement the reorganization on March 7. The parties met on March 4, 1983, to discuss the specific proposals concerning the reorganization which had been submitted by the Union. There was give and take discussion concerning all of the Union's proposals. The Respondent's representative accepted the Union's position concerning certain issues, but took the position that the remaining proposals submitted by the Union involved subject matters about which the Respondent was not required to bargain. The Union's representative did not formally challenge the Respondent's contention that the outstanding issues at the conclusion of the March 4 meeting involved prohibited or permissive subjects of bargaining, i.e., those matters which are either outside the scope of bargaining required of an agency pursuant to section 7106(a) of the Statute or are negotiable only at the election of an agency pursuant to section 7106(b)(1) of the Statute. The Union did not seek to further clarify management's position on the nonnegotiability of its remaining proposals, nor did the Union file a negotiability appeal with the Authority. Further, the unfair labor practice complaint in this matter does not allege that the Respondent violated the Statute by implementing the March 7, 1983 reorganization in the face of outstanding proposals or that the proposals declared nonnegotiable by the Agency were in fact within the duty to bargain. Indeed, the record indicates that the Union's representative checked various sources available to her with regard to the Respondent's position as to the nonnegotiability of the remaining proposals and, on March 24, 1983, after the reorganization had been implemented, submitted new proposals concerning the March 7, 1983 reorganization which were believed to involve mandatory subjects of bargaining. In these circumstances, the Authority concludes, in agreement with the Judge's ultimate conclusion, but for other reasons, that the Respondent fulfilled its obligation to bargain in good faith with the Union prior to the implementation of its March 7, 1983 reorganization. Thus, as found by the Judge, the Respondent reached agreement with respect to certain subjects of bargaining presented by the Union, and asserted that the other matters raised by the Union were not negotiable. The Union did not submit any other proposals or file a negotiability appeal. Therefore, the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it implemented the March 7, 1983 reorganization. */ Accordingly, we shall order that the complaint be dismissed in this regard. The Judge also concluded that the Respondent did not unlawfully bypass the exclusive representative in violation of section 7116(a)(1) and (5) of the Statute by virtue of its March 7, 1983 memorandum announcing to employees the reorganization implemented that day, and soliciting their suggestions for improving the workplan. In the circumstances of this case, we agree with the Judge's conclusion, but for other reasons. Subsequent to the Judge's Decision herein, the Authority issued its Decision in Internal Revenue Service (District, Region, National Office Units), 19 FLRA No. 48 (1985), petition for review filed, 85-1597 (D.C. Cir. Sept. 20, 1985), in which the Authority considered whether the agency's conduct therein in distributing questionnaires to unit employees constituted an unlawful bypass of the exclusive representative. In relevant part, the Authority stated: (A)s part of its overall management responsibility to conduct operations in an effective and efficient manner, an agency may question employees directly provided that it does not do so in a way which amounts to attempting to negotiate directly with its employees concerning matters which are properly bargainable with its employees' exclusive representative. In this regard, as the Authority has previously noted, management must have the latitude to gather information, including opinions, from unit employees to ensure the efficiency and effectiveness of its operations. The Authority concluded in that case that the agency's conduct therein did not constitute an unlawful bypass of the exclusive representative because the questionnaires were an information gathering mechanism, in connection with the management function of studying its operations, and because there was no indication that management had attempted to deal or negotiate directly with unit employees concerning their negotiable conditions of employment. In the instant case, similarly, the Respondent's conduct did not constitute a bypass of the Union. In this regard, we note that the Respondent gave the Union advance notice of the proposed reorganization and an opportunity to bargain with respect thereto before the reorganization was implemented and that the Respondent's memorandum to the employees herein notified them of the reorganization which was effective that day and further indicated that management was "open to discussion and will gladly accept suggestions for improving the workplan." The record fails to show that the Respondent sought to, or did in fact, negotiate directly with unit employees concerning matters which are properly bargainable with the Union. Further, it is neither alleged nor shown that the Respondent received any response used any information from employees that in any way undermined the status of the exclusive representative. In our view, the memorandum merely sought to elicit factual information and the opinions of the affected employees with regard to the already implemented reorganization. Accordingly, the Authority concludes that the General Counsel has failed to establish an unlawful bypass in violation of section 1116(a)(1) and (5) of the Statute, and therefore shall order that the complaint also be dismissed in this regard. See also Department of Defense, Office of Dependents Schools, 19 FLRA No. 94 (1985) and Department of Health and Human Services, Social Security Administration, 19 FLRA No. 56 (1985). ORDER IT IS ORDERED that the complaint in Case No. 9-CA-30346 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., November 29, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTE - 20 FLRA No. 91 - Authority's decision */ See, e.g., Social Security Administration, Northeastern Program Service Center, 18 FLRA No. 60 (1985)(proposals 3 and 6); National Aeronautics and Space Administration and Goddard Space Flight Center, 18 FLRA No. 35 (1985); U.S. Department of Treasury, Internal Revenue Service, Philadelphia Service Center, 16 FLRA No. 105 (1984); and General Services Administration, 15 FLRA No. 6 (1984). ------------------------------------------------- ------------------------------------------------- ------------------------------------------------- ------------------------------------------------- ------------------------------------------------- SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501, AFL-CIO Charging Party James S. Sable and Charles A. Askin, Esqs. For the General Counsel Mr. Wilson G. Schuerholz For the Respondent Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on July 7, 1983 by the Regional Director for the Federal Labor Relations Authority, San Francisco, California, a hearing was held before the undersigned on August 10, 1983. This proceeding arose under the federal Service Labor-Management Relations Statute (herein called the Statute). It resulted from a charge filed on April 4, 1983 and amended on June 21, 1983 by American Federation of Government Employees, Local 1501, AFL-CIO (herein called the Union) against Social Security Administration, Baltimore, Maryland (herein called Respondent). The Complaint alleges that Respondent engaged in unfair labor practices in violation of Section 7116(a)(1) and (5) of the Statute by unilateral implementation of subspecialization of the supplemental security Income Post Entitlement Unit (hereinafter referred to as SSI PE Unit) prior to completion of bargaining with the Union concerning the impact and implementation of the subspecialization plan; by its total refusal to bargain on the same matters in the face of the Union's modified bargaining proposals after the reorganization was implemented; and, finally that Respondent engaged in an additional violation of section 7116(a)(1) and (5) by attempting to bypass the exclusive representative and to deal directly with unit employees regarding the same reorganization. Respondent's Answer denies that it engaged in any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of fact On February 28, 1983, Operations Supervisor, Vicki I. Winn, in Respondent's South Seattle Branch Office provided, John Mack, Alternate Union representative at the office, with a memorandum dated the same day. The memorandum proposed the creation of an Overpaymemt submit within the SSI PE Unit with a "proposed effective date" of March 4, 1983. The SSI PE Unit generally has jurisdiction over all cases related to an individual's eligibility after the person has been determined to qualify for SSI benefits. Overpayments are precisely that the name implies: excessive payments to a recipient. The purpose of the proposal as stated by the correspondence was to more effectively control and process SSI overpayments. Thereafter, Supervisor Winn issued a second memorandum to Mack on Wednesday, March 2, 1983 which confirmed the Friday, March 4 implementation date, unless the Union notified her of any impact prior to that time. The local Union representative, Mary O'Malley, returned to the office on March 2 from training at the SSA Regional Office, and submitted a request to bargain regarding the subspecialization on March 3. Supervisor Winn responded by memorandum of March 3 indicating generally how the Overpayment and Redetermination submits of the SSI PE Unit were to function and explained that the Redetermination submits would deal with redeterminations of eligibility for SSI benefits and miscellaneous matters affecting a beneficiary. Supervisor Winn's memorandum repeated the March 4 deadline for the Union to identify any impact and further indicated that she was willing to "consult" on impact. Union representative O'Malley testified at the hearing that she saw impact in several areas such as: lost skills; appraisals; volume of work; and, grades. Subsequently, on March 4, O'Malley and Winn met to discuss the subspecialization proposal. The meeting commenced at about 4 p.m. and lasted for approximately thirty minutes. During the meeting, O'Malley provided Winn with a hand-written "Impact Statement" as well as nine Union proposals concerning the creation of the Overpayment and Redetermination submits. Those bargaining proposals were as follows: 1. Employees will be rotated out of the subspecialty every 6 months. Appropriate refresher training will be given. The amount and nature of the training will be deemed appropriate if both the OS and the CRare mutually agreed on the amount and nature of the training. 2. Interviews will continue to be handled across the board, as they are now. 3. Adequate clerical support will be provided the OP CR. Adequate support means a full time CDC, familiar with the OP process. 4. Adequate clerical support will be provided the RZ unit. Adequate support means a full time CDC, familiar with the RZ process. 5. SSI OP's CR's workload will be restricted to listed OP's and interviewing. 6. Desk audits will be scheduled for each CR. On the dates of those audits, all work will be reviewed, including that done outside the subspeciality. 7. CR's will be advised to inform the OS if they are working outside the subspecialty for prolonged periods (i.e. interviewing, etc.) so that this variable can be considered and the work properly appraised. 8. The OS Hill make every effort to credit employees with work done outside the subspecialty. 9. The OS will make every effort to identify such variables as the size of the workload, interviewing pressures, and additional assignments (this is not an all inclusive list, merely examples) when evaluating or documenting employee performance. The parties discussed each item separately. As O'Malley testified: I stated that we had made a request to bargain; that did want to discuss the proposals that I had brought, and we did do that; we went through the proposals, basically one by one. As we did that, she would state or comment upon the proposal and I noted that on my proposals. At the end of the session, at about 4:30, she stated that they needed that weekend to set up for the implementation and I stated we felt that we were not that far from an agreement and that I had no real problem with the idea of setting up over the weekend, but to delay the implementation until we had completed the bargaining. . . Later, O'Malley testified that the only real understanding reached was with regard to Item 1. In discussing the nine proposals, Winn stated that the parties covered all the proposals: Each of her proposals, even those that I considered to be management's right to assign work, and the reason that I did that is I value her opinion. Concerning the meeting as a whole, Winn added: I thought it was a very open meeting, at least from where I was coming from. I thought Mary was free to say exactly how she felt on all the issues, even those that I felt were management's right to assign work. I thought that it was a good, amiable session. I thought at the conclusion of it that we had agreed on all those items that I felt were negotiable and nothing was dome on those that I felt were management's right to assign work. Winn further characterized the meeting as follows: Since she agreed that we were fairly close and in agreement with those issues that were negotiable, that we could go ahead and set up on Saturday. She stated that O'Malley was clear and specific on this point and had no objections. Winn also testified specifically about the nine proposals indicated numerous areas of give and take between the parties. For example: Item number one; Mary was concerned with the rotation of the employees from one subspecialty to the other. Initially, I proposed that they could probably be rotated, but I didn't have a specific date in mind. At that meeting, Mary felt that six months was a good time for them to be in that and I saw no problem with that so we agreed on the six-month rotation. When we came to talking about the amount of training that would be given to the person rotated, I saw that as no change from existing policy. . . As to item 2, 3 and 4, Winn testified: . . . After talking with Mary, I thought that we both agreed that that would not happen; if a claims representative in the redetermination unit got an interview that involved an overpayment, they would keep that interview, the person would not be bounced back up front; so I thought we agreed on that one. Winn's testimony is clearly that she thought items 3 and 4 involved management rights and Here non-negotiable. On item 5, Winn's testimony is as follows: . . . Originally, I had, in my original proposal, I had the overpayment claims representative handling those cases in which we had identified an overpayment and a redetermination needing to be done at the same time. After talking with Mary, I thought we agreed on that and in my final draft, my final memo when I made the assignment of work, I altered it to fit this so that the overpayment claims representative would not be doing scheduled redetermination and by scheduled, mean the list that came out in February. On items 7, 8 and 9, Winn states that there was agreement that these items represented no change from what was currently being done. She concluded by saying. I thought not only were we very close, I thought we agreed on those items that I thought were negotiable. The ones that were not negotiable, I let her know that, that I considered those to be assignment of work, which is a management right. O'Malley also indicated: "I stated that I felt we were not that far from agreement. . ." O'Malley made side notes on the items discussed and it is clear from the record that the parties did not reach agreement on items 2, 3, 4, 5 and 6 as these were contended by Winn to be work assignments and non-negotiable. Winn's written statement of March 7 also provides her position on these matters. Thereafter, O'Malley who did not realize the possibility existed that at least some of these items might have been non-negotiable apparently sought to file a negotiability appeal. Thus, O'Malley testified that her contacts with the Federal Mediation and Conciliation Service and the Authority, while she did not question either of these agencies about specific proposals, led her to draw a conclusion from what she learned that proposals 2, 3, 4, 5 and 6 here indeed non-negotiable. For that reason as later developed, she resubmitted proposals to Winn on March 24. According to O'Malley, Winn stated that she needed the weekend to set up for implementation. O'Malley ended the meeting by requesting that implementation be delayed until bargaining had been completed. Mrs. Winn recalls the statement, but made no response because according to her, she thought that an agreement bad been reached. O'Malley says that Winn indicated she would study the proposals and get back to her, but indicated that management would set up for the reorganization over the weekend. On the following Monday, March 7, Ms. O'Malley received a package of three memoranda from Winn, all dated March 7. The first memorandum was Winn's response to O'Malley's proposals on the subspecialization scheme. Winn informed O'Malley that although the Union had not identified a substantial impact of the proposed change, she had nevertheless "considered" the proposals and advised the Union of her conclusion that their proposals were already in current practice or were not negotiable. Winn's memoranda made no reference to any "agreement" between the parties. The other memoranda were addressed to the SSI PE Unit employees generally and dealt with the logistics of implementation of the proposed change. Winn therein informed the affected employees that work assignments would commence on Tuesday, March 8 and further solicited the employees' own proposals for implementing stating that: "I am open to discussion and will gladly accept suggestions for improving the workplan." As noted above, local Union representative Mary O'Malley received this memorandum together with Winn's response to the Union's proposals concerning the SSI PE Unit and the memoranda to the employees in the SSI PE Unit the same day. After receiving these documents, O'Malley sought official time to assess the Union's bargaining posture in view of Winn's action. In making her request for time, O'Malley renewed her demand in writing that implementation be delayed until bargaining on the matter had finished. The official time request was not granted until March 11, three days after the asserted date of implementation. As already noted, O'Malley subsequently attempted to have the Federal Mediation and Conciliation Service intervene in the case. The informed Winn of this effort on March 11 and repeated her request to delay implementation for a third time. After contact with the Federal Mediation and Conciliation service proved unhelpful since implementation had already been effectuated, O'Malley submitted different proposals to Winn on March 24. The newly submitted proposals are clearly mandatory subjects of bargaining. It is uncontraverted that Winn never responded to the new proposals, and in fact, Winn admitted she did not even bother to read the proposals. The implementation became effective on March 15, 1983. Discussion and Conclusions A. Whether Respondent Violated Section 7116(a)(1) And (5) By Implementing Subspecialization Of The SSI Post Entitlement Unit At Its South Seattle Branch Office Prior To The Completion Of Bargaining With The Union Regarding The Impact And Implementation Thereof Section 7103(a)(12) defines collective bargaining as: "the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession." Further, the Authority has indicated that the mere fact that agency management is not persuaded to change its position during negotiations does not constitute a showing of bad faith. Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA No. 111 (1983). Respondent does not contest that it had an obligation to bargain on the impact and implementation of its reorganization, but submits that an impasse existed following the March 4 meeting and that it was free to impose changes not exceeding its proposals after bargaining to impasse. With regard to proposals 2, 3, 4, 5 and 6 Respondent claims that these matters were all non-negotiable since they conflict with 7106(a) and (b) rights to assign work and direct the work force and to determine the numbers, types and grades of employees. Regarding the bargaining proposals, the General Counsel asserts that even if the proposals involved permissive subjects of bargaining a finding that Respondent's conduct violated the Statute is not precluded. Recording to the General Counsel, Section 7106(b) specifically provides that certain "non-negotiable" subjects are appropriate for collective Bargaining at the election of the agency. Accordingly, unions can-- and do-- make proposals on non-mandatory subjects, presumably at the expense of less ambitious, "fall back" impact and implementation proposals so long as it appears they may secure more than impact and implementation concessions. The General Counsel also submits that once an agency elects to conduct bargaining on such permissive proposals, it has an obligation to advise the Union that it regards certain proposals as non-negotiable to afford the Union the opportunity to return to the table with mandatory proposals such as impact and implementation proposals. The General Counsel's position, is in essence, that such a position is particularly warranted where, as here, Respondent agreed to one Union "non-negotiable" proposal, number 5, relating to a different assignment of the work than management proposed. The General Counsel thus contends that Respondent cannot be allowed to unilaterally decide that union proposals are non-negotiable and implement a change without an adequate explanation and an adequate opportunity to respond. The rationale being that to hold Respondent to a lesser standard would be to ignore the type of dignity and directness which the Authority has required parties to collective bargaining to accord to each other. U.S. Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (1980)): Thus, the General Counsel claims that Respondent's premature near-simultaneous notice to the Union of its intent to implement while delaying the Union's official time request to permit further bargaining was not consistent with the Statutory obligation to bargain in good faith. In short, the General Counsel maintains that Respondent's "non-negotiable" defense is negated since at least two issues separating the parties were impact and procedural proposals and thereby negotiable. According to the General Counsel these negotiable subjects regarding procedures for implementation had yet to be resolved when Respondent unilaterally implemented the change. The General Counsel's overall theory of the case seemingly rises or falls on whether the Union had sufficient notification to prepare for the March 4 negotiation session. Unlike the General Counsel, I do not consider the notice, first given to the Union on February 28, as "near simultaneous". In my view the Union received ample notification, as evidenced by the proposals prepared by it, to allow it to prepare for meaningful negotiations. Notwithstanding that advance notification, the Union did not appear to be prepared to proceed with bargaining if its proposals were rejected. A review of the March 4 bargaining session demonstrates that Respondent had made its decision to reorganize and intended to deal with the Union only on those matters which did not infringe on its management rights or which required negotiation. During the session the parties did engage in meaningful discussions with regard to the reorganization and indeed discussed the proposals submitted by the Union, agreeing to at least two proposals. While no impasse */ was declared the Respondent's position was that it intended to go ahead with the reorganization and the Union agreed that the reorganization could be set up over that weekend. The Authority has held an agency's declaring a matter non-negotiable does not constitute bad faith bargaining where at the time of declaration of non-negotiability, no established precedent existed which was despositive of the negotiability issue. See, 182 Tactical Air Support Group, Illinois Air National Guard, the Adjutant General of Illinois, Springfield, 10 FLRA 381. Although, the Union's position as bargaining ended was neither filed nor uncompromising, as O'Malley agreed that Respondent could proceed with a reorganization set-up over that weekend, Respondent's position was clearly that it intended to proceed with the reorganization. Respondent did not suggest further bargaining nor does the record reveal that Respondent had any interest in continuing bargaining. Furthermore, the Union apparently felt further bargaining would be fruitless and it sought advice concerning other avenues such as the Mediation Service. Moreover, the Union presented no objections to Respondent's position on non-negotiability of the six items and it made no specific requests for further negotiations on March 4. Under all the circumstances, it is my view that no reason existed to believe that further bargaining would be beneficial on the six remaining items since Respondent's position was that it had no obligation to bargain on those matters. With regard to the General Counsel's viewpoint that the Union should be allowed to respond at some point to Respondent's position on non-negotiability, I agree. Notwithstanding my agreement, the time to respond was not three weeks later, following implementation. In order to obtain additional time, it is my opinion that the Union should have requested an established time frame or at least requested additional meetings with a specific format during the March 4 meeting, if it desired to continue bargaining. Further evidence that bargaining had reached impasse is shown by O'Malley's contacts with the FMCS and the Authority indicating that she also felt that bargaining had been concluded. While Union representative O'Malley expresses a view that bargaining had not ended, it is clear that Respondent was not prepared to move from its position that certain matters were non-negotiable nor was the Union prepared to concede, at that time, that its proposals were indeed non-negotiable. The Union reached this conclusion only after meeting and conferring with other officials. Inasmuch as there is no evidence that either party was willing to move from its respective position, it is my view that an impasse did exist and accordingly, Respondent could, as it did, implement its proposals. Accordingly, it is found that Respondent engaged in good faith bargaining on March 4, and once it felt that agreement had been reached concerning the proposals which it felt were negotiable, it implemented those proposals. In such circumstances, it is found that Respondent, did not violate section 7116(a)(1) and (5) of the Statute by implementing subspecialization of the SSI Post Entitlement Unit prior to completion of bargaining with the Union regarding impact and implementation. B. Whether Respondent Violated Section 7116(a)(1) And (5) In Bypassing The Union And Attempting To Deal Directly With Unit Employees The General Counsel contends that Respondent violated section 7116(a)(1) and (5) of the Statute when it bypassed the Union and attempted to deal directly with unit employees. The facts surrounding this alleged violation stem from the March 7 memorandum circulated to employees by Mrs. Winn stating, "I am open to discussion and will gladly accept suggestions for improving the work plan." Case law establishes that such communications rise to the level of an unfair labor practice only when that communication constitutes an effort to undermine the status of the exclusive representative either by attempting to bargain directly with unit employees, urging employees to put pressure on the exclusive representative to pursue certain action, or when they threaten or promise benefits to employees. Kaiserslautern American High School, Department of Defense Dependent Schools, Germany North Region, 9 FLRA No. 28 (1982); Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71 (1982). According to the General Counsel, this communication was an attempt to solicit feedback from unit employees on a subject which was in negotiation and was clearly an attempt to circumvent the Union and weaken its position. In order to find that Respondent was attempting to circumvent its bargaining obligation, it would be necessary for the undersigned to have already found that the parties were still engaged in bargaining and that such a communication was designed to weaken the Union's position in that bargaining. I am satisfied on this record, an impasse in bargaining existed and that Respondent had no such motivation, but that the communication was merely a solicitation of employee suggestions on improvement not designed to aid in avoiding its obligation to bargain. Accordingly, it is found that Respondent's action herein did not constitute a bypass of the exclusive representative in violation of section 7116(a)(1) and (5) of the Statute. C. Whether Respondent Violated Section 7116(a)(1) And (5) By Its Refusal To Respond And/Or To Bargain When The Union Renewed Its Request With Different Bargaining Proposals Based on the record as a whole, I also reject the General Counsel's position that Respondent violated section 7116(a)(1) and (5) by refusing to respond to and bargain with the Union concerning the renewed request to bargain submitted by the Union on March 24. The General Counsel's sole argument in this regard is that Mrs. Winn's conduct does not comport with the "most fundamental notions of decency and manners". Citing, U.S. Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (1980). Decency and manners most certainly have a place in communications in labor-relations matters. However, with respect to bargaining there must be an obligation to meet and discuss matters. Here the Respondent had discussed and in its view reached an impasse concerning matters in the SSI PE Unit reorganization. Since, it had reached impasse and already implemented its reorganization its view was that bargaining had been concluded, agreement reached and that it had no obligation to reopen this matter. Although Mrs. Winn's conduct in not reading the second set of proposals may not have been civil, without an obligation to bargain, it was not conduct which violated the Statute. In light of the above, it is found that Respondent did not violate section 7116(a)(1) and (5) of the Statute by its refusal to respond to the Union's renewed request to bargain on March 24. Accordingly, it is recommended that the Authority adopt the following: ORDER It is hereby ordered that the Complaint in Case No. 9-CA-30346, be and it hereby is dismissed. (s)--- ELI NASH, JR. Administrative Law Judge Dated: April 25, 1984 Washington DC FOOTNOTE - 20 FLRA No. 91 - ALJ's Decision */ Citing, U.S. Army Corps of Engineers, Philidelphia District, 6 A/SLMR No. 673 (1976), Respondent asserts that an impasse "is simply a failure to reach agreement after having negotiated." That case, however, involved substantially more meetings and time than the one thirty minute session involved herein. While I agree with the principal enunciated, therein I do not, agree that the case is entirely dispositive of the matter here.