21:0319(43)CO - National Council of SSA Field Operations Locals - Council 220 AFGE and Rose M. Lepore, Regional Commissioner, Region III, SSA -- 1986 FLRAdec CO



[ v21 p319 ]
21:0319(43)CO
The decision of the Authority follows:


 21 FLRA No. 43
 
 NATIONAL COUNCIL OF SOCIAL 
 SECURITY ADMINISTRATION FIELD 
 OPERATIONS LOCALS -- COUNCIL 220 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, AFL-CIO
 Respondent
 
 and
 
 ROSE M. LEPORE, REGIONAL 
 COMMISSIONER, REGION III 
 SOCIAL SECURITY ADMINISTRATION
 Charging Party
 
                                            Case No. 2-CO-50010
 
                            DECISION AND ORDER
 
                            I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed to the attached Decision of the Administrative Law Judge.  The
 complaint before the Judge alleged that the National Council of Social
 Security Administration Field Operations Locals -- Council 220, American
 Federation of Government Employees, AFL-CIO (the Union) violated section
 7116(b)(5) of the Federal Service Labor-Management Relations Statute
 (the Statute) by refusing to execute a negotiated agreement concerning
 overtime distribution and compensatory leave.  The Judge found that the
 Union had engaged in the unfair labor practices alleged in the
 complaint, in violation of the Statute, and recommended that the
 Authority issue an appropriate order directing the Union to cease and
 desist from these unfair labor practices.
 
                           II.  Background Facts
 
    As the result of negotiations between the Union and the Agency (the
 Charging Party), concerning overtime distribution and compensatory
 leave, the parties reached an agreement.  However, when the agency
 presented the agreement for signature to Thomas Biggar, the Union's
 Acting Regional Vice President, with whom it had been negotiating,
 Biggar refused to sign the agreement, stating that he was under a direct
 order not to sign.  The agency then filed the unfair labor practice
 charge that led to this complaint.
 
                      III.  Positions of the Parties
 
    At the hearing the General Counsel argued that the Union negotiator,
 Biggar, had the apparent authority to bind the Union and that, if he was
 restricted in any way in this regard, the Union had failed to meet the
 burden of proving that the agency was aware of any such restrictions.
 
    In its exceptions, the Union argues, as it did before the Judge, that
 the agency had the burden of explicitly confirming with higher Union
 officials the exact nature of Union negotiator Biggar's authority to
 bind the Union to an agreement.  If the agency had sought such
 confirmation, it argues, the agency would then have known that Biggar's
 authority was in fact limited.  From this, it contends that the Judge
 was incorrect in finding that the Union should be bound by Biggar's
 actions.
 
                               IV.  Analysis
 
    In his decision, the Judge held that Union negotiator Biggar
 possessed at least apparent authority to bind the Union and that the
 Union failed to meet the burden of proving otherwise.  We agree with the
 Judge's conclusion that, as an authorized representative of the
 Respondent Union negotiated and reached agreement, the Union must be
 required to sign the written memorandum of understanding embodying the
 agreed upon terms.  However, we find it unnecessary to pass upon, and
 specifically do not adopt, the Judge's statement with regard to whether,
 or in what forum, the memorandum's enforceability may be challenged as
 potentially conflicting with the terms of the parties' national
 collective bargaining agreement.
 
                              V.  Conclusion
 
    The Authority has considered the Judge's Decision, the exceptions to
 that Decision, the positions of the parties and the entire record, and
 adopts the Judge's findings, /1/ conclusions, and recommended Order as
 modified.  /2/ Pursuant to section 2423.29 of the Authority's Rules and
 Regulations and section 7118 of the Statute, the Authority has reviewed
 the rulings of the Judge made at the hearing, finds that no prejudicial
 error was committed, and thus affirms those rulings.  We therefore
 conclude that the Respondent has violated section 7116(b)(5) of the
 Statute by ordering its agent to refuse to execute a negotiated
 agreement concerning overtime distribution and compensatory leave and by
 continuing to refuse to execute that agreement.
 
                                   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 National Council of Social Security
 Administration Field Operations Locals -- Council 220, American
 Federation of Government Employees, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to bargain in good faith with Region III, Social
 Security Administration, by withdrawing its delegation of authority to
 its agent, Biggar, by ordering him not to sign, and by refusing to sign
 the January 21, 1985 written memorandum of understanding embodying terms
 and conditions of employment concerning overtime distribution and
 compensatory leave on which full agreement had been reached.
 
    (b) In any like or related manner failing to bargain in good faith
 with Region III, Social Security Administration.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, sign the January 21, 1985 memorandum of
 understanding reached with Region III, Social Security Administration,
 which embodies terms and conditions of employment concerning overtime
 distribution and compensatory leave on which full agreement had been
 reached.
 
    (b) Post at its business offices and normal meeting places, including
 all places where notices to members and to employees of Region III,
 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
 Regional Vice President of the National Council of Social Security
 Administration Field Operations Locals -- Council 220, American
 Federation of Government Employees, AFL-CIO, and shall be posted and
 maintained for 60 consecutive days thereafter in conspicuous places,
 including all 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.
 
    (c) Submit appropriate signed copies of such Notice to the Regional
 Commissioner, Region III, Social Security Administration, for posting in
 conspicuous places where unit employees are located, where they should
 be maintained for a period of 60 consecutive days from the date of
 posting.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., April 16, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, 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 refuse to bargain in good faith with Region III, Social
 Security Administration, by withdrawing the delegation of authority to
 our agent, Biggar, by ordering him not to sign, and by refusing to sign
 the January 21, 1985 written memorandum of understanding embodying terms
 and conditions of employment concerning overtime distribution and
 compensatory leave on which full agreement had been reached.
 
    WE WILL NOT in any like or related manner fail to bargain in good
 faith with Region III, Social Security Administration.
 
    WE WILL, upon request, sign the January 21, 1985 memorandum of
 understanding reached with Region III, Social Security Administration,
 which embodies terms and conditions of employment concernint overtime
 distribution and compensatory leave on which full agreement had been
 reached.
                                       . . . (Labor Organization)
 
    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 II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 2237, New York, New York 10278, and whose
 telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 NATIONAL COUNCIL OF SOCIAL SECURITY \
 ADMINISTRATION FIELD OPERATIONS
 LOCALS -- COUNCIL 220, AMERICAN 
 FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO
    Respondent
                             and         Case No.: 2-CO-50010
 
 ROSE M. LEPORE, REGIONAL 
 COMMISSIONER, REGION III, Social 
 Security Administration
    Charging Party
 
 
 
    John R. Steen, Esquire
    Edgar Allan Jones, III, Esquire
    For the General Counsel
 
    Martin R. Cohen, Esquire
    For the Respondent
 
    Irving L. Becker, Esquire
    For the Charging Party
 
    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 an amended charge first filed on February 26, 1985, by
 Rose M. LePore, Regional Commissioner, Region III, Social Security
 Administration, (hereinafter called the Charging Party or SSA), a
 Complaint and Notice of Hearing was issued on April 29, 1985, by the
 Regional Director for Region II, Federal Labor Relations Authority, New
 York, New York.  The Complaint alleges that the National Council of
 Social Security Administration Field Operations Locals -- Council 220,
 American Federation of Government Employees, (hereinafter called the
 Union or Respondent), violated Section 7116(b)(5) of the Federal Service
 Labor-Management Relations Statute, (hereinafter called the Statute), by
 virtue of its actions in refusing to execute a negotiated agreement
 concerning overtime distribution and compensatory leave.
 
    A hearing was held in the captioned matter on June 10, 1985, in
 Philadelphia, Pennsylvania.  All parties were afforded the full
 opportunity to be heard, to examine and cross-examine witness, and to
 introduce evidence bearing on the issues involved herein.  The General
 Counsel and the Respondent submitted post-hearing briefs on July 25,
 1985, which have been duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witness and his demeanor, I make the following findings of fact,
 conclusions, and recommendations.
 
                             Findings of Fact
 
    The American Federation of Government Employees, AFL-CIO (AFGE), is
 the exclusive representative of a consolidated nationwide unit of
 certain employees of the Social Security Administration, including among
 others, all employees employed in the District and Branch offices of the
 Social Security Administration in the States of Pennsylvania, Delaware,
 Virginia, West Virginia and Washington, D.C.  /3/ The aforementioned
 District and Branch offices of the Social Security Administration fall
 within the jurisdiction of Region III and are under the supervision of
 Regional Commissioner Ms. Rose LePore.  Council 220, the Respondent
 herein, is the AFGE representative for Region III.  Thomas Wachter is
 the Regional Vice President for Council 220 and empowered to negotiate
 and execute agreements on behalf of Council 220.  He also has the power
 to delegate his responsibilities in the area of negotiations such as
 grievances to other Union representatives.
 
    Mr. Michael Gutkind, Regional Labor Relations Specialist, represents
 SSA Region III in labor relations matters at the local, area and
 regional levels.  In his capacity as the Regional Labor Relations
 Specialist he has successfully negotiated agreements at all levels,
 i.e., local, area and regional wide, with Mr. Wachter's designees that
 have been signed by the Respondent Union.  Although the Respondent Union
 had a policy of having any agreement negotiated by Mr. Wachter's
 designees reviewed by Mr. Wachter or Ms. Jill Hastings, a Regional Vice
 President designee, prior to execution, /4/ Mr. Gutkind was never
 advised of this policy.
 
    On August 6, 1984, Mr. Wachter designated Mr. Thomas Biggar, a
 Regional Vice President and also a Local president, to represent the
 Respondent Union on a grievance concerning the assignment of overtime.
 At this time Mr. Biggar had already been designated the Union's
 representative on another grievance concerning the awarding of
 compensatory time for overtime worked.  There was also a third grievance
 pending concerning overtime which had been assigned to another
 representative or designee.  The grievances concerned the way volunteers
 were selected for overtime and the awarding of compensatory time in lieu
 of wages.
 
    SSA Region III was of the opinion that the grievances had some merit
 as there appeared to be a difference in the various offices of SSA
 concerning the criteria to be utilized in selecting individuals for
 overtime and the awarding of compensatory time for overtime worked.
 Thus it appears that some offices would not allow employees to work
 overtime if they had used annual leave during the pay period when
 overtime work was available.  In order to correct the situation the
 Regional Commissioner decided that a region-wide agreement should be
 negotiated so that there would be uniformity among all the offices
 within the Region with respect to the awarding of overtime.
 
    In September 1984, Mr. Gutkind telephoned Mr. Biggar, and discussed
 the grievances that Mr. Biggar had been designated on as the Union
 representative, informed Mr. Biggar that he was personally speaking for
 the Regional Commissioner and that she desired to negotiate a settlement
 which would be Region wide, and that although he, Mr. Biggar, did not
 represent the Union on the third grievance pending against SSA Region
 III it would be appreciated if he could coordinate its resolution with
 the other two grievances on which he had been designated union
 representative.  Mr. Biggar agreed to coordinate the third grievance and
 agreed to exchange proposals with Mr. Gutkind.  /5/
 
    In accordance with their agreement, Mr. Gutkind mailed his proposals
 to Mr. Biggar on October 19, 1984.  Mr. Biggar received the proposals
 and on November 8, 1984 mailed counterproposals to Mr. Gutkind.  Mr.
 Gutkind considered the counterproposals to be applicable to all three
 grievances since Mr. Biggar stated in proposal No. (3) as follows:
 
          3.  The Union agrees to withdraw all requests for individual
       remedies in the 2 grievances which raised these issues.  The Union
       also agrees to withdraw its arbitration request in 84k14304.  /6/
 
    In making his counterproposals Mr. Biggar requested that further
 negotiations be postponed until he returned from an assigned work detail
 which ran or was scheduled to run from September 1, 1984 through
 December 14, 1984.  Mr. Gutkind did not pursue the matter until he
 returned from a two week vacation in early January, 1985.
 
    In early January 1985, Mr. Wachter notifed the SSA Region III by
 telephone that Mr. Biggar would be Acting Regional Vice President of
 Council 220 because he, Mr. Wachter, was going to be involved for
 approximately 30 days in negotiations in Baltimore.  Mr. Wachter
 confirmed the delegation in writing by letter dated January 17, 1985.
 Although Mr. Wachter testified that he had informed Mr. Biggar not to
 sign any agreement without first contacting Ms. Jill Hastings, he
 admitted that he had never informed Mr. Gutkind of any kind of
 restrictions on Mr. Biggar's authority.  The record indicates that Mr.
 Biggar had on two occasions in the past been designated Acting Regional
 Vice President.
 
    According to Mr. Gutkind, he telephoned Mr. Biggar in early January
 and discussed the proposals and the fact that it included all three
 grievances.  Although, Mr. Biggar testified that all his discussions
 were confined to only two grievances, he did acknowledge that the
 Agency's proposals would have region-wide impact.  Subsequently, Mr.
 Gutkind and Mr. Biggar, commencing on January 9, 1985, held
 approximately five or six telephone conversations and discussed the
 problems each had with the other's proposals.  /7/ The parties finally
 reached an agreement on or about January 14, 1985.  Mr. Gutkind then
 prepared a written agreement, had it signed by Commissioner LePore, and
 mailed it to Mr. Biggar for signature.  According to Mr. Biggar, during
 the negotiations, he on one occasion notified Mr. Gutkind that the
 agreement was subject to review by Mr. Wachter.  Mr. Gutkind denies ever
 being informed of any limitation on Biggar's authority, and I credit his
 denial.
 
    Shortly after January 14, 1985, Mr. Wachter spoke with Ms. Hastings
 and learned that Mr. Biggar was negotiating an agreement which involved
 more than the grievances on which he had been designated the union
 representative.  Mr. Wachter then telephoned Mr. Biggar and requested
 all correspondence on the matter.
 
    Ms. Hastings then contacted Mr. Gutkind by telephone on January 16,
 1985, and informed him that there would be no regional agreement on the
 subject of overtime.  Mr. Gutkind informed Ms. Hastings that he was
 dealing with Mr. Biggar on the matter.  Mr. Gutkind then telephoned Mr.
 Biggar and informed him of Ms. Hastings' telephone call.  Mr. Biggar
 apologized and stated that Ms. Hastings was out of line, that he
 intended to sign the agreement and that he would straighten out the
 matter.  /8/
 
    On January 21, 1985, not having received the signed agreement from
 Mr. Biggar, Mr. Gutkind telephoned Mr. Biggar and inquired about its
 status.  Mr. Biggar informed Mr. Gutkind that he would not sign the
 agreement without four specified changes.  Although Mr. Gutkind insisted
 that an agreement had already been reached, Mr. Biggar stood fast in his
 position that further changes would have to be made before he signed the
 agreement.  The telephone conversation ended with Mr. Gutkind agreeing
 to reconsider the matter.  Later that same day, after determining that
 the changes did not materially change the agreement, Mr. Gutkind
 telephoned Mr. Biggar and informed him that his suggested changes would
 be made and that another signed agreement would be mailed to him.  Mr.
 Gutkind then redrafted the agreement, had it signed by Ms. LePore and
 mailed it out on January 24, 1985.
 
    By letter dated February 4, 1985, Ms. Hastings informed Ms. LePore
 that the Union would be glad to negotiate an agreement on the assignment
 of overtime.
 
    On February 12, 1985, Mr. Gutkind telephoned Mr. Biggar and asked
 where the signed agreement was.  Mr. Biggar informed him that he could
 not sign the agreement because he had received orders from Mr. Wachter
 forbidding its execution.  According, to Mr. Gutkind, Mr. Biggar told
 him that he had been threatened with a personal law suit and could not
 discuss the matter further.  According, to Mr. Wachter, he did not want
 the agreement signed because he was of the opinion that it conflicted
 with the parties national agreement.  /9/
 
    On February 18, 1985, Mr. Biggar wrote a letter to Mr. Gutkind which
 reads as follows:
 
          Dear Michael,
 
          The recent action of the union concerning the agreement we
       negotiated troubles me.  Because of that action I have resigned my
       regional position.  Although I am no longer in a position to make
       agreements on a regional level and cannot sign the MOU as written,
       I can make agreements covering Area 6 and am willing to sign the
       MOU if it is revised to cover Area 6 offices only.  I only wish
       that there was some way I could have signed it for the region
       because I think it was a good settlement.  However faced with a
       direct order not to sign and the threat of a suit if I did I had
       no choice.
 
          Please let me know if the above offer is acceptable.  I hope it
       is but can certainly understand why you might not want to make an
       agreement for only one area.
 
    Mr. Biggar subsequently resigned his Union position due in part to
 the Union's action in preventing him from signing the agreement
 negotiated with Mr. Gutkind.
 
    Mr. Wachter testified that other than submitting a written
 confirmation of Mr. Biggar's appointment to Acting Regional Vice
 President, he never discussed with Mr. Gutkind any restriction he had
 placed on Mr. Biggar's authority to represent the Union.  /10/
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that the Union violated
 Section 7116(b)(5) of the Statute by refusing to execute the memorandum
 of understanding concerning overtime distribution and compensatory leave
 negotiated by Mr. Gutkind and Mr. Biggar while Mr. Biggar was acting in
 the capacity as Acting Regional Vice President.  In support of his
 position the General Counsel points out that the Regional Vice President
 possessed the power to bind the Union.  In such circumstances, while
 there may have been some internal restrictions on Mr. Biggar's
 designation as Acting Regional Vice President, such restrictions were
 never conveyed to SSA, Region III.  In such circumstances the Union is
 bound by the memorandum of understanding negotiated by its agent, Mr.
 Biggar, who it had clothed with the apparent authority possessed by the
 Regional Vice President in the area of negotiability.
 
    The Respondent Union, on the other hand, takes the position that it
 was under no obligation to sign the memorandum of understanding since
 Mr. Gutkind was aware of the fact that any agreement negotiated by Mr.
 Biggar was subject to approval of Mr. Wachter.  In support of its
 position it relies on the testimony of Mr. Biggar and points out, that
 in any event, Mr. Gutkind should have sought clarification of Mr.
 Biggar's bargaining authority following the telephone call from Ms.
 Hastings.  Additionally, the Union argues that it should be excused from
 executing the memorandum of understanding because it conflicts with the
 terms of the national agreement between the parties.
 
    Section 7114(b)(5) of the Statute provides that "the duty of an
 agency and an exclusive representative to negotiate in good faith . . .
 shall include the obligation if an agreement is reached, to execute on
 the request of any party to the negotiation a written document embodying
 the agreed terms . . . ." Failure of a union to so execute an agreement
 embodying agreed terms of employment is violative of Section 7116(b)(5)
 of the Statute.  American Federation of Government Employes, AFL-CIO,
 Local 3732 and Department of Transportation, Maritime Administration,
 U.S. Merchant Marine Academy, Kings Point, N.Y., 16 FLRA No. 50.
 
    Respondent Union does not appear to be arguing with the above
 conclusions concerning the state of the law, but rather takes the
 position that although agreement had been reached between Mr. Gutkind
 and Mr. Biggar on the memorandum of understanding dealing with the
 distribution of overtime, etc., the agreement was subject to the
 approval of Mr. Wachter.
 
    However, in order to sustain such position, it is incumbent upon the
 Respondent Union to prove that SSA, Region III had prior knowledge of
 the restrictions placed on Mr. Biggar, who by virtue of his position as
 Acting Regional Vice President had apparent authority to conclude an
 agreement.  In this context, Mr. Wachter admits that any internal
 restrictions on Mr. Biggar's authority to enter into a binding agreement
 were never conveyed by him to management during his conversations with
 Mr. Gutkind.  In fact the only evidence indicating that such
 restrictions were conveyed to management is Mr. Biggar's testimony that
 on one occasion during the negotiations he told Mr. Gutkind that any
 agreement was subject to Mr. Wachter's approval.  Mr. Gutkind denies
 being so informed.  /11/
 
    The fact that Ms. Hastings may have informed Mr. Gutkind that the
 agreement would never be signed does not alter the above conclusion
 since Ms. Hasting was subordinate to the Regional Vice President in
 authority.
 
    Finally, with respect to Respondent Union's defense predicated upon
 the allegation that the memorandum of understanding conflicts with the
 terms of the national collective bargaining agreement, I find such
 defense to be without merit.  Whether or not there is a conflict between
 the memorandum of understanding and the terms of the national collective
 bargaining agreement which might render the memorandum of understanding
 unenforceable is a matter to be determined in another forum, i.e.,
 arbitration or a suit to rescind the memorandum of understanding.
 
    Accordingly, having designated Mr. Biggar Acting Regional Vice
 President without any restrictions, save the pending grievances on which
 Mr. Wachter was the designated Union representative, and having clothed
 Mr. Biggar with all the apparent authority of the Regional Vice
 President, it is obligated to honor and execute any and all agreements
 negotiated by him.  Long Beach Naval Shipyard, Long Beach, California
 and FEMTC, AFL-CIO, 7 FLRA 102.
 
    Based upon the above findings and conclusions, I further find that by
 refusing to execute the memorandum of understanding concerning the
 distribution of overtime and compensatory leave, the Respondent Union
 violated Section 7116(b)(5) of the Statute.
 
    Having found that the Respondent Union has violated the Statute, I
 hereby recommend that the Authority issue the following order designed
 to effectuate the purposes and policies of the Statute.  /12/
 
                                   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 National Council of Social Security Administration Field
 Operations Locals -- Council 220, American Federation of Government
 Employees, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
          a.  Refusing to bargain in good faith with Region III, Social
       Security Administration by refusing to sign the January 21, 1985
       written memorandum of understanding embodying terms and conditions
       of employment concerning overtime distribution and compensatory
       leave on which full agreement had been reached.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          a.  Upon request, sign the January 21, 1985, memorandum of
       understanding reached with Region III Social Security
       Administration which embodies terms and conditions of employment
       concerning overtime distribution and compensatory leave on which
       full agreement had been reached.
 
          b.  Post at its business offices and normal meeting places
       including all places where notice to members are customarily
       posted throughout Region III of the Social Security Administration
       copies of the attached Notice on forms to be furnished by the
       Authority.  Upon receipt of such forms, they shall be signed by
       the Regional Vice President of the National Council of Social
       Security Administration Field Operations Locals -- Council 220,
       American Federation of Government Employees, AFL-CIO, and shall be
       posted by him for 60 consecutive days.  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 II, 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:  August 21, 1985
    Washington, DC
 
 
                     -------  FOOTNOTES$ ----------
 
    (1) The Respondent in essence excepted to certain credibility
 findings made by the Judge.  The demeanor of witnesses is a factor of
 consequence in resolving issues of credibility, and the Judge has had
 the advantage of observing the witnesses while they testified.  The
 Authority will not overrule a Judge's resolution with respect to
 credibility unless a clear preponderance of all the relevant evidence
 demonstrates that such resolution was incorrect.  The Authority has
 examined the record carefully, and finds no basis for reversing the
 Judge's credibility findings.
 
    (2) The Judge's recommended Order has been modified for consistency
 with remedial orders previously issued where substantially identical
 violations of the Statute have been found.  See, e.g., American
 Federation of Government Employees, AFL-CIO, Local 3732, 16 FLRA 318
 (1984).
 
    (3) The AFGE and SSA are parties to a nationwide collective
 bargaining agreement.
 
    (4) In her position as a Regional Vice President designee, Ms.
 Hastings handles various matters and/or assignments from Mr. Wachter.
 
    (5) Mr. Biggar acknowledges a discussion with Mr. Gutkind, but claims
 that the discussion only involved the two grievances that he had been
 designated as union representative.
 
    (6) Mr. Gutkind testified that he understood the reference to the two
 grievances and one arbitration request to be the three grievances he had
 discussed earlier in the negotiations with Mr. Biggar.  Mr. Biggar
 testified that his response was only applicable to the two grievances on
 which he had been designated as the Union representative.  Mr. Biggar's
 testimony to this effect is supported by one of the grievances which
 indeed makes mention of Arbitration No. 84k14304.
 
    (7) At this time Mr. Biggar was Acting Regional Vice President for
 Council 220.
 
    (8) Mr. Biggar acknowledges the telephone call but claims that he
 informed Mr. Gutkind that the only person within the Region that had
 authority to review the agreement was Mr. Wachter.
 
    (9) In this connection Article 10, Section 2 of the contract provides
 in pertinent part as follows:
 
          A.  Overtime shall be distributed to bargaining unit employees
       whose performance is fully satisfactory.
 
          B.  Overtime shall not be distributed or withheld as reward or
       penalty.
 
    Mr. Witold Skwierczynski, President of the National Council of SSA
 Field Operation Locals and one of the negotiators of the national
 collective bargaining agreement, corroborated Mr. Wachter's testimony
 that the memorandum of understanding conflicts with the terms of the
 national collective bargaining agreement.  He further testified that
 during negotiations for the national agreement the SSA had attempted to
 insert restrictions on the distribution of overtime by penalizing
 employees who had taken sick leave, annual leave or leave without pay
 during the pay period when overtime leave was available.
 
    (10) In his written notice to the Agency concerning the designation
 of Mr. Biggar as Acting Regional Vice President, Mr. Wachter merely
 informed the SSA that he would "continue to handle all pending
 grievances and arbitration cases for which I am the representative of
 record." No other restrictions were in the letter.
 
    (11) Based upon my observation of the witnesses and their demeanor I
 credit Mr. Gutkind's testimony that he was never informed of any
 restriction on Mr. Biggar's apparent bargaining authority.  Mr. Biggar's
 hesitant testimony appeared to be tailored so as not to prejudice
 Respondent Union's case.
 
    (12) Although I recognize that ordering the Respondent Union to
 execute the memorandum of understanding may turn out to be a futile act
 since the memorandum of understanding may well conflict with the terms
 of the national collective bargaining agreement, the fact remains that
 an authorized representative of Respondent Union negotiated and reached
 agreement on conditions of employment and is therefore required by the
 Statute, upon request, to sign a written document embodying the agreed
 upon terms.
 
 
 
 
 
 
                                 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 refuse to bargain in good faith with Region III, Social
 Security Administration by refusing to sign the January 21, 1985,
 written memorandum of understanding embodying