23:0738(96)CA - HHS, SSA, Baltimore, MD and AFGE -- 1986 FLRAdec CA



[ v23 p738 ]
23:0738(96)CA
The decision of the Authority follows:


 23 FLRA No. 96
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL 
 SECURITY ADMINISTRATION 
 BALTIMORE, MARYLAND
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-40007
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's Decision filed by the
 Department of Health and Human Services, Social Security Administration
 (the Respondent).  The issue concerns whether the Respondent violated
 section 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (the Statute) by refusing to bargain with the American
 Federation of Government Employees, AFL-CIO (the Union) concerning a
 particular proposal.  For the reasons stated below, we find no merit to
 this allegation.
 
                                II.  Facts
 
    On May 23, 1983, the Respondent and the Union, pursuant to an unfair
 labor practice settlement agreement, signed a Memorandum of
 Understanding (MOU) which provided, in part, that:
 
          This memorandum will serve as an agreement by Management and
       Local 2206 to enter into negotiations regarding Management's
       decision to rotate the Benefit Authorizer Technical Assistants on
       a 6-month basis.  Negotiations will be in accordance with the
       (S)tatute and Article 4 of the National Agreement.
 
    As a result of the MOU, the parties negotiated for over one month on
 13 proposals submitted by the Union.  Of the original proposals, the
 Union withdrew four because they infringed upon management's section
 7106 rights;  six were agreed to;  and three, including the proposal
 involved in this case, Union Proposal No. 5, because subjects of unfair
 labor practice charges.  /1/ The General Counsel concedes that while the
 Union's initial Proposal No. 5 concerning a system of errors to be
 applied uniformly to the Benefit Authorizer Technical Assistants (BATAs)
 may have infringed upon management's rights, it was offered as part and
 parcel of the posturing process during negotiations.  Thereafter, during
 the month-long negotiations, the Uniion submitted several different
 versions of Proposal No. 5 concerning the same subject.  The last offer
 was declared nonnegotiable by the Respondent.  /2/
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that the Respondent violated section 7116(a)(1) and
 (5) of the Statute by declaring Union Proposal No. 5 nonnegotiable.  He
 found that by such action the Respondent repudiated the parties' MOU.
 In making this finding, the Judge noted that the Respondent had
 previously agreed to negotiate over the impact of a change in conditions
 of employment pursuant to the MOU executed as a part of the settlement
 agreement.  Accordingly, the Judge found that the Respondent failed to
 meet its bargaining obligations by its declaration.  He further
 concluded that the Respondent was obligated to negotiate with the Union
 over the proposal.
 
                       IV.  Positions of the Parties
 
    In its exceptions, the Respondent argues that it negotiated
 extensively and in good faith with the Union for one month.  It contends
 that after a month of negotiations the parties reached an impasse.
 Further, it argues that the Judge's Decision finding the Union's
 proposal negotiable is erroneous because the proposal interferes with
 the Respondent's right to determine which duties and functions will be
 included in performance appraisals and thereby interferes with its right
 to assign work.  Finally, it argues that the Judge's remedy ordering a
 national posting is excessive under the circumstances.
 
                               V.  Analysis
 
    In our view, the agency merely exercised its right under section
 7117(c) of the Statute to allege that a proposal is nonnegotiable.  The
 Authority has long held that an agency's declaration of nonnegotiability
 does not constitute bad faith bargaining where at the time of the
 declaration, no established precedent existed which was dispositive of
 the negotiability issue.  /3/ Since no established precedent exists with
 respect to the specific language of proposal No. 5, Respondent's mere
 declaration of nonnegotiability does not constitute a violation of the
 Statute.  In addition, where a unilateral change in conditions of
 employment coupled with a refusal to bargain is alleged, the Authority
 will make a negotiability ruling in the context of an unfair labor
 practice proceeding.  /4/ In this case, the complaint does not allege a
 unilateral change.  We will not, therefore, decide the negotiability of
 Proposal No. 5 in this proceeding.
 
    As for the Judge's reliance on the MOU, in our view it obligated the
 Respondent to negotiate over the rotation of the BATAs, not to negotiate
 on any and all proposals that the Union might make.  The MOU provided:
 "Negotiations will be in accordance with the Statute." The Union
 acknowledges making certain proposals which might have infringed upon
 management's section 7106 rights, including earlier versions of Proposal
 No. 5.  The Respondent had a statutory right to raise the same concern
 about the proposal at issue.
 
    We do not agree with the Judge's finding that the Respondent's
 nonnegotiability declaration with regard to one proposal was a
 repudiation of the MOU.  The MOU constituted an agreement to negotiate,
 which the Respondent did for one month, agreeing to six of the Union's
 proposals.  /5/ There is no evidence that Respondent refused to
 negotiate in good faith.
 
    Accordingly, we do not view the Respondent's conduct as violative of
 the Statute.
 
                              VI.  Conclusion
 
    Pursuant to section 2423 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.  The Authority has considered
 the Judge's Decision and the entire record, including the parties'
 contentions, and adopts the Judge's findinigs and conclusions only to
 the extent consistent with our decision.  Therefore, we shall dismiss
 the complaint.
 
                                   ORDER
 
    The complaint in Case No. 4-CA-40007 is dismissed.
 
    Issued, Washington, D.C. October 31, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 4-CA-40007
 
    DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
    SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
         Charging Party
 
 
    Regina Kane, Esq.
          For the General Counsel
 
    L. J. Clary, Esq.
          For the General Counsel
 
    Before:  ELI NASH, JR.
          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. (herein referred to as the Statute).
 
    Upon unfair labor practice charges filed by the American Federation
 of Government Employees (herein referred to as the Union) on October 5,
 1983 against the Department of Health and Human Services, Social
 Security Administration, Baltimore, Maryland (herein referred to as
 Respondent or SSA), the General Counsel of the Authority, by the
 Regional Director for Region 4, issued a Complaint and Notice of Hearing
 on February 15, 1984.  The Complaint alleged that Respondent violated
 section 7116(a)(1) and (5) of the Statute by failing and refusing to
 bargain in good faith by declaring a union proposal non-negotiable and
 refusing to bargain in good faith concerning the policy described in the
 Union proposal.
 
    Respondent's Answer denied the commission of any unfair labor
 practice.
 
    A hearing was conducted in Birmingham, Alabama, at which time
 Respondent and the General Counsel were represented by Counsel and
 afforded full opportunity to adduce evidence, call, examine and
 cross-examine witnesses and argue orally.  Counsel for the General
 Counsel gave oral argument and Respondent filed a brief.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    Since on or about June 11, 1982, the Respondent and Union have been
 parties to a collective bargaining agreement covering a nationwide
 consolidated unit which includes employees of Respondent at its
 Southeastern Program Service Center located in Birmingham, Alabama.
 
    In October, 1982, Respondent implemented a change in policy
 concerning its Benefit Authorizer Technical Assistants (BATAs), who are
 responsible for reviewing the work of other employees, Benefit
 Authorizers (BAs).  The BAs are responsible for post-adjudicative
 actions on Social Security cases.  Prior to the above change implemented
 in October, 1982, a BATA was assigned on a permanent basis to one of
 thirty-six modules at Respondent's Southeastern Program Service Center.
 The module is a self-contained unit consisting of approximately fifty
 employees who collectively are responsible for processing and
 maintaining all Social Security claims and benefits.  Each BATA is
 responsible for providing technical leadership, guidance and counsel to
 the ten to fifteen BAs assigned to each module, and for reviewing the
 work of the BAs, including the identification of "errors" made by the
 BAs.
 
    Commencing with the change implemented in October, 1982 Respondent
 began rotation of BATAs from module to module every six months.  The
 reason for the rotation was, as Respondent had perceived, that the BAs
 in each particular module had become familiar with their BATAs methods
 and preferences, and thus could predict what would or would not be an
 "error" to that specific BATA.  Because Respondent unilaterally
 implemented this new rotation system without bargaining with the Union,
 the Union filed an unfair labor practice charge on October 15, 1982.
 The case, 4-CA-30042 was subsequently settled after issuance of a
 Complaint by the Regional Director, Region 4 and after Respondent
 entered into an agreement with the Union entitled Memorandum of
 Understanding, Ground Rules, on May 23, 1983.  The signatories to this
 agreement were Respondent's Labor Relations Specialist George Sedberry
 and Local Union President Frank White.  The Memorandum of Understanding
 provides, inter alia, that:
 
          This memorandum will serve as an agreement by Management and
       Local 2206 to enter into negotiations regarding Management's
       decision to rotate the Benefit Authorizer Technical Assistants on
       a 6-month basis.  Negotiations will be in accordance with the
       (S)tatute and Article 4 of the National Agreement.
 
          This memorandum will serve as an agreement by Local 2206 to
       request withdrawal, concurrent with the initiation of
       negotiations, of the Unfair Labor Practice Charge filed on
       10/15/82, Case No. 4-CA-30042, . . . "
 
    Consistent with the above-stated objective of the Memorandum of
 Understanding and Ground Rules, Respondent and the Union, entered into
 negotiations on the impact and implementation of the rotation of BATAs
 in July, 1984.  The principals for the negotiations were the agreements
 signatures White and Sedberry.  The Union's intention apparently was to
 bargain over the adverse impact on the BAs and BATAs resulting from
 Respondent's decision to rotate BATAs.  Consistent with this intention
 the Union identified areas it felt impacted on the employees involved.
 
    According to Thomas M. Bruce, Director of Operations of the Program
 Service Center involved herein, all BATAs followed the same
 instructional guidance in reviewing BAs and there was unquestionably
 room for the BATAs to exercise judgment in the decision making process.
 Mr. Bruce further stated each BATAs definition of an "error" made by a
 BA was somewhat subjective and could differ from BATA and BATA.
 According to him a method existed for the resolution of an error because
 such differences of opinion indeed exist.
 
    The Union was concerned that the implementation of the decision to
 rotate BATAs on a periodic basis would adversely impact BA's inasmuch as
 the BAs would no longer be familiar with the particular judgmental
 preferences of the BATAs assigned to them, especially with regard to
 what constituted an error.  According to Mr. White, the rotation
 destroyed the advantage of knowing the preferences and actions of the
 BATA to which the BA was regularly assigned.  The rotational process,
 particularly the assignment of errors, according to Mr. White, goes to
 the root of the evaluation process under the Civil Service Reform Act.
 Mr. White also vigorously denied that the Union desired during
 negotiations to participate in devising errors. In short, it appears
 that the Union was looking for consistency in definition of errors.
 
    When the parties commenced negotiations pursuant to the May 23, 1983,
 Memorandum of Understanding, the Union initially submitted thirteen (13)
 proposals r for management's consideration.  Of the thirteen (13)
 original proposals the Union withdrew four (4) because they infringed
 upon management's section 7106 rights;  six (6) were agreed to;  and,
 three (3) which remained became subjects of unfair labor practice
 charges.
 
    The proposal with which we are here concerned is item number five (5)
 of the thirteen (13) and concerns a system of errors to be applied
 uniformly to BATAs.  While the Union's initial proposal on this matter
 admittedly infringed on management's rights under section 7106, the
 Union submitted several different proposals concerning the same subject
 during negotiations and it is its last offer which was declared
 non-negotiable on August 24, 1983, by Labor Relations Specialist
 Sedberry is at issue here.  Mr. Sedberry, declared proposal item 5
 non-negotiable "because there is no change in working conditions . . .
 no change in our personnel policy, practice, or working (sic), or
 conditions of employment."
 
    In its last offer, the Union proposal on item 5 was as follows:
 
          Technicians subject to quality assessment by the BATA will be
       given an appropriate list of errors by management, each defined in
       such a manner that all affected parties to this agreement have a
       common understanding of what they are and how they will be
       applied.
                                       . . .
 
          Any error definition will be applied consistently to all
       affected employees throughout the SEPSC.
 
    This proposal allegedly establishes a procedural requirement that
 after an error had been defined by management, the employee must be told
 what the definition is in a reasonably comprehensive manner in order to
 insure consistent application.
 
    Mr. White testified, that when the Union submitted the above
 proposal, it desired Respondent to give the affected employees a list of
 what the errors were so that both BATAs and BAs possessed a mutual
 understanding of what constituted an error and so that the error
 definitions would be applied consistently to all employees throughout
 the Program Center.
 
    Thereafter, a Mediator assisted the parties' at their request in
 August, however, actual negotiations on item 5 have not occurred at any
 time subsequent to August 24, 1983, when Respondent declared Item 5
 non-negotiable.
 
    On January 30, 1984, Mr.Bruce, issued a memorandum to all Program
 Center Operations Managers, entitled Exercise of Professional Judgment
 in Casework.  The memorandum provided, as follows:
 
          Basically, this memorandum does not extend the authority
       technicians already possess since they already have the discretion
       to deviate from established procedures where individual case
       circumstances dictate a different course of action.  The objective
       of the memorandum was to reinforce this authority and expectation
       and encourage the authorizers to fully exercise it . . .  Some
       authorizers evidently feel a strong reluctance to deviate from
       procedures for fear of getting an error.
 
                        Discussion and Conclusions
 
    The Authority has made it abundantly clear that where an agency in
 exercising a management right under section 7106 of the Statute, the
 statutory duty to negotiate comes into play if the change results in an
 impact upon unit employees or such impact was reasonably foreseeable.
 Department of Health and Human Services, Social Security Administration,
 Baltimore, Maryland, 16 FLRA No. 32 (1984);  U.S. Government Printing
 Office, 13 FLRA No. 39 (1983);  Internal Revenue Service, Washington,
 D.C. and Fresno Service Center, Fresno, California, 16 FLRA No. 23
 (1984);  Department of Health and Human Services, Social Security
 Administration, 16 FLRA No. 103 (1984).
 
    The Union's proffer of item 5 was prompted by its desire to have
 Respondent give affected employees a list of defined errors thereby
 insuring that both BATAs and BAs would know and have a common
 understanding of what constituted an "error".  The impact in its view
 being that the individual BAs performance evaluation would ultimately be
 affected by the assignment of errors therefore, the Union desired
 advance knowledge of what constituted an error.
 
    Respondent simply denies that the rotation of BATAs is a change in
 conditions of employment and sees no impact on BAs as a result of its
 rotating BATAs.  The record is contrary to that assertion.  The record
 disclosed more than a question of negotiability or impact and shows that
 Respondent had already agreed to negotiate the impact of that change in
 rotation of BATAs.  /6/ Case No. 4-CA-30042 was informally resolved on
 the basis that Respondent would negotiate concerning its decision to
 rotate BATAs and that such negotiations would be done in conformity with
 the Statute and Article 4 of the parties collective bargaining
 agreement.  If Respondent did not view the rotation as a change in
 conditions of employment, why then did it agree to engage in
 negotiations concerning the rotation.  That issue was resolved by its
 capitulation in entering into the settlement agreement in the initial
 case.  I agree with the General Counsel that Respondent's position is
 dissembling.  First, Respondent admits an obligation to bargain
 concerning the impact and implementation of a subject, enters into an
 agreement memorializing that position, an agreement by the way, which
 was made possible only by the Union's settlement of a charge found
 meritorious by the Regional Office, engages in negotiations concerning
 some previously contested items but decides that it does not want to
 honor the agreement where item 5 is concerned.  Inasmuch as Respondent
 refused to negotiate concerning item 5 it is found that Respondent's
 action constitutes a repudiation of that agreement and violates section
 7116(a)(1) and (5) of the Statute.  See Great Lakes Program Service
 Center, Social Security Administration, Department of Health and Human
 Services, 9 FLRA 499 (1982);  Veterans Administration Hospital,
 Danville, Illinois, 4 FLRA 432 (1980).
 
    Respondent, asserts that it met its obligation to bargain in this
 matter since it met in a good-faith effort to reach agreement.  It
 contends, that under Bureau of Prisons, Lewisburg Penitentiary,
 Lewisburg, Pennsylvania, 11 FLRA 639 (1983) the fact it was not
 persuaded to change its position during negotiations does not constitute
 a showing of bad faith.
 
    The Lewisburg case is inapplicable since no Memorandum of
 Understanding was involved in that case.  Here it is clearly established
 by Respondent's position in settling Case No. 4-CA-30042 that it would
 engage in impact and implementation bargaining and that at least
 implicitly, it had an obligation to engage in impact bargaining
 concerning the rotation of BATAs. Anything less than complete bargaining
 on the impact and implementation apparently would not be in accord with
 the agreement it entered into in May 1983.  This is not a situation
 under section 7106 where Respondent elects to negotiate, since its
 election to negotiate was exercised when it entered the Memorandum of
 Understanding.  In this same vein, Respondent entered in negotiations
 over other aspects of the rotation of BATAs thereby buttressing the
 opinion that a change in conditions of employment had occurred.
 Finally, meeting but affirmatively refusing to negotiate does not
 satisfy the obligation to bargain as Respondent seems to suggest.  Cf.,
 Library of Congress, 9 FLRA 427 (1982).
 
    In rejecting the May 1983 Memorandum of Understanding and assuming
 that it had no obligation to bargain consistent with that memorandum
 Respondent now maintains that no adverse impact occurred when it
 exercised management rights herein.  I disagree.  A foreseeable impact
 clearly exists since the record indicates errors are incorporated into
 the employees rating process.  Clearly the Union saw potential adverse
 impact and presented its proposals pertinent to such impact.
 
    The General Counsel argues that the proposal offered by the Union was
 negotiable and that this matter falls within the class of cases where
 agencies must bargain over the dissemination or communications of
 determinations to employees because such dissemination or communication
 in no way interferes with managements abilities to make the
 determinations, and as such are matters which are fully negotiable.
 Citing Department of the Army, Fort Monmouth, New Jersey, 13 FLRA 426
 (1983);  Bureau of Public Debt, 3 FLRA 768 (1980);  Federal Deposit
 Insurance Corporation, Chicago Region, 7 FLRA 217 (1981);  Office of
 Personnel Management, Washington, D.C., 3 FLRA 783 (1980);  Department
 of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982).
 
    Turning to the General Counsel's argument that the record
 demonstrates that the Union's final proposal did not attempt to give it
 the right to determine what constitutes an error nor did it seek any
 input into that determination.  The Union proposal here appeared to be
 no more than a procedural requirement seeking to establish that once an
 error has been defined by the agency, the employee would be told the
 definition of the error in a reasonably intelligible manner.  The
 proposal certainly goes to the impact of Respondent's decision to rotate
 BATAs, particularly because the major concern of the Union here was to
 prevent the lack of uniformity of application of the system of errors.
 Thus, Respondent was obligated to bargain with the Union on this
 proposal unless the Union's proposal (if adopted) would substantially,
 or excessively, interfere with management's right to determine the
 errors.  See U.S. Customs Service, Region II, 11 FLRA 209 (1983);
 Office of Personnel Management, Washington, D.C., 8 FLRA 460 (1982)
 (D.C. Cir. March 13, 1984), or unless a government-wide regulation or
 Statute left no discretion to the agency in the "choice" of the
 procedure.  See U.S. Customs, Region II, 11 FLRA 209 (1983);  Bureau of
 Alcohol, Tobacco, and Firearms, 8 FLRA 547 (1982);  March AFB,
 Riverside, California, 13 FLRA No. 44, 13 FLRA 255 (1983).
 
    A review of the Union's proposal indicates that it did not interfere
 with the Respondent's right to determine errors, and that the proposal
 concerning the definition of "errors" which would affect employee
 evaluations fell within the duty to bargain.  Furthermore, Respondent
 raised no government-wide regulation with which the proposal is
 incompatible or irreconcilable.  As the General Counsel notes, the
 Union's proposal, if accepted, does not require Respondent to adopt any
 input from the Union or employees on the definition of error.  To the
 contrary, the proposal simply provides a means for the employee or Union
 to know what the errors are and how they are to be applied.  Knowledge
 of what an error is and its application in a consistent manner indeed
 might reduce adverse impact of rotating BATAs, while leaving
 management's decision-making unaffected.
 
    Accordingly, in view of the foregoing and the conclusion that
 Respondent has violated section 7116(a)(1) and (5) of the Statute, by
 declaring a union proposal non-negotiable and refusing to negotiate
 thereon although a reasonably foreseeable impact existed, /7/ I
 recommend the Authority issue the following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's 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) Failing or refusing to negotiate in good faith with the
       American Federation of Government Employees, AFL-CIO, the
       employees' exclusive collective bargaining representative by
       declaring to the following proposal concerning the rotation of
       BATAs non-negotiable:
 
          Technicians subject to quality assessment by the BATA will be
       given an appropriate list of errors by management, each defined in
       such a manner that all affected parties have a common
       understanding of what they are and how they will be applied . . .
       .  Any error will be applied to all affected employees.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of 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 Federal Service Labor-Management Relations
 Statute:
 
          (a) Upon request of the American Federation of Government
       Employees, AFL-CIO, the employees' exclusive collective bargaining
       representative, negotiate in good faith, to the extent consonant
       with law and regulations, concerning the impact and implementation
       of the proposal concerning the rotation of BATAs.
 
          (b) Post at all of its facilities where employees represented
       by the American Federation of Government Employees, AFL-CIO, the
       employees' exclusive representative, are located, copies of the
       attached Notice marked "Appendix", on forms to be furnished by the
       Federal Labor Relations Authority.  Upon receipt of such forms
       they shall be signed by an appropriate official and shall be
       posted and maintained by him for 60 consecutive days thereafter,
       in conspicuous places, including bulletin boards and all other
       places where notices to employees are customarily posted.  The
       Commissioner shall take reasonable steps to insure that such
       notices are not altered, defaced, or covered by any other
       material.
 
          (c) Pursuant to section 2423.30 of the Federal Labor Relations
       Authority's Rules and Regulations, notify the Regional Director of
       Region 4, Federal Labor Relations Authority, 1776 Peachtree
       Street, NW., Suite 501 -- North Wing, Atlanta, GA 30309, in
       writing within 30 days from the date of the Order as to what steps
       have been taken to comply herewith.
 
                                       /s/ ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  December 24, 1984
       Washington, DC
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The record does not show what happened to the other two proposals
 subject to unfair labor practice charges.
 
    (2) The proposal at issue is:
 
          Technicians subject to quality assessment by the BATA will be
       given an appropriate list of errors by management, each defined in
       such a manner that all affected parties to this agreement have a
       common understanding of what they are and how they will be
       applied.
 
          Any error definition will be applied consistently to all
       affected employees throughout the SEPSC.
 
    (3) See 182nd Tactical Air Support Grouup, Illinois Air National
 Guard, The Adjutant General of Illinois, Springfield, Illinois, 10 FLRA
 381 (1982).
 
    (4) Department of Health and Human Services, Social Security
 Administration, Baltimore, Maryland, 22 FLRA No. 10 (1986).
 
    (5) Based on our decision in this case, we find it unnecessary to
 consider the Respondent's contentions that the parfties were at a
 bargaining impasse.
 
    (6) Based on the May 23, 1983 Memorandum of Understanding, I find
 that Respondent's waiver argument lacks merit.
 
    (7) In light of the above findings, Respondent's Motion to Dismiss is
 denied.
 
 
 
 
 
 
                                 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 fail and refuse to bargain in good faith with the
 American Federation of Government Employees, AFL-CIO by declaring the
 following proposal concerning the rotation of BATAs non-negotiable:
 
          Technicians subject to quality assessment by the BATA will be
       given an appropriate list of errors by management, each defined in
       such a manner that all affected parties to this Agreement have a
       common understanding of what they are and how they will be
       applied.  Any error will be applied consistently to all affected
       employees throughout the SEPSC.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL bargain collectively with the American Federation of
 Government Employees, AFL-CIO on all proposals concerning the
 implementation of the rotation of BATAs and the impact thereof upon
 employees adversely affected, including the proposal set forth above.
                                       (Agency or Activity)
 
    Dated:  . . .  By:  (Signature)
 
    This Notice must remaiin 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 any of its provisions, they may commun