23:0807(104)CA - HHS, SSA, Dallas Region, Dallas, TX and AFGE, National Council of SSA-Field Operations Locals; HHS, SSA, McAllen Distrrict Office, McAllen, TX and AFGE, Local 3388; HHS, SSA, El Paso District Office, El Paso, TX and AFGE, local 2991 -- 1986 FLRAdec CA



[ v23 p807 ]
23:0807(104)CA
The decision of the Authority follows:


 23 FLRA No. 104
 
                                            Case No. 6-CA-785
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION 
 DALLAS REGION, DALLAS, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, NATIONAL COUNCIL 
 OF SOCIAL SECURITY ADMINISTRATION-
 FIELD OPERATIONS LOCALS
 Charging Party
 
                                            Case No. 6-CA-1034
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION 
 McALLEN DISTRICT OFFICE, McALLEN, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3388, AFL-CIO
 Charging Party
 
                                            Case Nos. 6-CA-1053 
                                                             6-CA-1053-1 
                                                             6-CA-1054 
                                                             6-CA-1055
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION 
 EL PASO DISTRICT OFFICE, EL PASO, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2991, AFL-CIO
 Charging Party
 
 
 
 
                            DECISION AND ORDER
 
                        I.  Statement of the Cases
 
    This consolidated proceeding is before the Authority on exceptions
 filed by the Respondents and the General Counsel to the attached
 Decision of the Administrative Law Judge.  The issues in this proceeding
 involve the promulgation of a "Personnel Guide for Supervisors" (PGS) by
 the Dallas Region of the Social Security Administration, Department of
 Health and Human Services, the Respondent in Case No. 6-CA-785.  It was
 alleged in that case that the Dallas Region violated section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) by promulgating the PGS without affording the exclusive
 representative of its employees an appropriate opportunity to bargain
 concerning its contents.  It is alleged in Case No. 6-CA-1034 and Case
 Nos. 6-CA-1053 -- 1055, respectively, that the McAllen District Office
 and El Paso District Office violated various provisions of the Statute,
 set forth below, by their conduct in implementing the PGS upon its
 receipt from the Dallas Region.
 
                              II.  Background
 
    The exclusive representative, American Federation of Government
 Employees, AFL-CIO, National Council of Social Security
 Administration-Field Operations Locals (AFGE National Council),
 represents a nationwide consolidated unit of nonprofessional employees
 of the Social Security Administration in Field Operations.  The unit
 encompasses employees in offices of the Dallas Region, including
 employees at the McAllen and El Paso District Offices.  The AFGE
 National Council represents employees in the unit at the national level.
  For more localized matters, it provides for representation through
 Regional Vice Presidents and local union affiliates;  for example, at
 the McAllen District Office by American Federation of Government
 Employees, Local 3388, AFL-CIO, and at the El Paso District Office by
 American Federation of Government Employees, Local 2991, AFL-CIO.
 
    In 1980 the Dallas Region promulgated the PGS.  It was intended to
 provide a framework under which management officials of sub-offices of
 the Dallas Region would establish performance goals for employees,
 provide measures for documenting employee performance, and provide
 counselling to employees regarding their performance.  The PGS was
 prepared by collecting and consolidating various policies which at least
 in substantial part had existed in written form in certain other guides,
 manuals and directives.
 
    The PGS was forwarded to sub-offices for action, including the
 Region's McAllen and El Paso District Offices.  Upon receipt of the PGS,
 the management officials in the sub-offices were to consult with their
 employees and prepare employee performance goals and employee
 performance accountability plans using quantitative measures based on
 the character of the work performed in their offices and the work
 actually performed by employees in their official positions.  These
 actions were taken by the McAllen and El Paso District Offices, and the
 McAllen District Office reached the point of forwarding its draft plans
 to the Dallas Region for review and comment and having the plans
 returned for further action.
 
             III.  Case No. 6-CA-785 (Dallas Regional Office)
 
                 A.  The Judge's Findings and Conclusions
 
    The Judge found that the Dallas Region had provided advance notice of
 the PGS and an opportunity to negotiate concerning its contents to the
 AFGE National Council Vice President for the Dallas Region.  In response
 to the contention that the PGS should have been elevated to the national
 level for negotiations at that level, the Judge noted that bargaining at
 the national level is necessary where exclusive recognition is at that
 level, but that the parties at the level of exclusive recognition may
 agree to authorize bargaining below that level as they deem appropriate.
  She found that the parties herein had provided for arrangements under
 which changes in conditions of employment which were initiated below the
 national level and which were confined to subordinate organizational
 levels, for example, at the Regional level, would be subject to
 bargaining at that level and that the actions taken by the Dallas Region
 were in conformance with these arrangements.  She concluded,
 accordingly, that the Dallas Region did not violate section 7116(a)(1)
 and (5) of the Statute by failing to elevate negotiations concerning its
 PGS to the national level.
 
    The Judge also concluded that the implementation of the PGS by
 management officials of the Dallas Region's sub-offices was a
 substantial change in working conditions that had a reasonably
 foreseeable adverse effect on the employees in those offices.  She found
 that the implementation constituted a change in conditions of employment
 of unit employees giving rise to a duty to negotiate as to the impact
 and implementation of the change.  She concluded that the Dallas Region
 violated section 7116(a)(1) and (5) of the Statute by instructing the
 McAllen and El Paso District Offices to implement the PGS without
 bargaining with the exclusive representative of their respective
 employees.
 
                     B.  The Positions of the Parties
 
    The Respondents excepted to the Judge's finding that the Dallas
 Region unlawfully refused to bargain over the impact and implementation
 of the PGS by instructing its District Offices not to bargain.  They
 further excepted to her finding that there was a duty to bargain at the
 District Office level (here McAllen and El Paso). The Respondents argued
 that the only duty was at the Regional Office level, and that the duty
 was met at that level. They further argue that, as the Judge found that
 the Dallas Regional Office was justified in refusing to elevate
 negotiations by the Union, none of the violations alleged against the
 Dallas Region can be found.
 
    The General Counsel excepted to the Judge's failure to find that the
 Dallas Region unlawfully refused to elevate negotiations to the national
 level.  It argues that the nature of the matter was appropriate for
 bargaining only at the national level and that the Union had never
 agreed to bargain on this specific matter at the Regional level.
 
                               C.  Analysis
 
    First, the Authority agrees with the Judge that the Dallas Region did
 not violate the Statute by failing to elevate negotiations concerning
 its PGS to the national level.  The Authority notes that although the
 record does not show that the parties executed a formal agreement
 concerning their alternative bargaining arrangements, it does show that
 these other arrangements for bargaining below the level of exclusive
 recognition arose out of delegations of authority from the AFGE National
 Council to its subordinate officials;  that the delegations were
 communicated to the Respondents' officials with thed intent that they
 should be effective;  that the arrangements were in conformance with and
 extensions of the parties' previously existing practices;  and that the
 parties' respective representatives at the Regional level understood
 that these arrangements were in place at the time that the Dallas Region
 promulgated its PGS.  It has not been alleged or shown that the Dallas
 Region misunderstood or acted contrary to these arrangements.  We find
 no merit in the AFGE National Council's contention that the Dallas
 Region's PGS should only have been negotiated at the national level;
 its contention was based only on the view that negotiations at the
 national level regarding a nationwide contract would result in
 agreements which might require subsequent revisions in the actions of
 the Dallas Region.
 
    The Authority also agrees with the Judge that the implementation of
 the PGS was a substantial change in the daily operations of the Dallas
 Region's sub-offices that had a reasonably foreseeable adverse effect on
 the employees in those offices.  We note that there were no exceptions
 to this finding of the Judge.  We thus concur in the Judge's conclusion
 that the implementation constituted a change in conditions of employment
 of unit employees that gave rise to a duty to bargain as to the impact
 and implementation of the change, and that the Dallas Region violated
 section 7116(a)(1) and (5) of the Statute by instructing the McAllen and
 El Paso District Offices to implement the PGS without bargaining with
 the exclusive representative.
 
        IV.  Case No. 6-CA-1034 (McAllen District Office) and Case
 
                Nos. 6-CA-1053 -- 1055 (El Paso District Office)
 
                 A.  The Judge's Findings and Conclusions
 
    The complaints in these cases alleged that:
 
    (1) the McAllen and El Paso District Offices, as well as the Dallas
 Region, violated section 7116(a)(1) and (5) of the Statute by unlawfully
 refusing to bargain with the exclusive representive of its respective
 employees;
 
    (2) both the McAllen and the El Paso District Offices also violated
 section 7116(a)(1) and (5) of the Statute by dealing directly with
 employees and thus unlawfully "bypassing" the exclusive representative
 of its respective employees;
 
    (3) the El Paso District Office further violated section 7116(a)(1)
 and (5) by breaching its negotiated agreement requiring the negotiation
 of changes in working conditions;
 
    (4) the McAllen District Office violated section 7114(a)(2)(A) and
 thereby section 7116(a)(1) and (8) of the Statute by holding "formal
 discussions" with its employees without affording Local 3388 the
 opportunity to be present;  and
 
    (5) the El Paso District Office violated section 7114(b)(4) and
 thereby section 7116(a)(1) and (8) of the Statute by refusing to supply
 Local 2991 with certain requested information.
 
    The Judge found that:
 
    (1) both the McAllen and El Paso District Offices followed the
 instructions of the Dallas Region, in fact refused to bargain with the
 exclusive representatives of their respective employees, and thus
 violated the Statute;
 
    (2) both the McAllen and El Paso District Offices also violated the
 Statute by dealing directly with, and thereby unlawfully bypassing the
 exclusive representative of, their respective employees;
 
    (3) resolution of the issue concerning the alleged breach of the
 collective bargaining agreement by the El Paso District Office was
 unnecessary, as it would add nothing to the decision of the recommended
 remedy;
 
    (4) the McAllen District Office held formal discussions with its
 employees without affording Local 3388 the opportunity to be present and
 thereby violated the Statute;  and
 
    (5) the El Paso District Office did not violate the Statute by
 refusing to supply certain requested information because it was not
 shown that the information was "necessary" or that it was "normally
 maintained" within the meaning of the Statute.
 
                     B.  The Positions of the Parties
 
    The Respondents' position, as set forth above, is that the only duty
 to bargain was at the Regional Office level and that therefore no
 failure of a duty to bargain can be found against the McAllen or El Paso
 District Offices.  The General Counsel agrees with the violations the
 Judge found, but excepts to her failure to find that the El Paso
 District Office unlawfully refused to furnish requested information.  In
 this regard, the General Counsel excepts to the rationale the Judge used
 in determining that the information was not necessary, and to the
 Judge's use of the standard that the information must have been
 "normally maintained."
 
                               C.  Analysis
 
    While we agree with the Judge, as found above, that the Dallas Region
 violated the Statute by instructing its McAllen and El Paso District
 Offices not to bargain, we do not agree that those offices also violated
 the Statute by refusing to bargain.  The McAllen and El Paso offices
 were acting only as conduits in carrying out the instructions of the
 Dallas Region.  In these circumstances, it would not effectuate the
 purposes and policies of the Statute to find a separate violation based
 upon the actions of officials in those District Offices.  See, for
 example, Department of Health and Services, Washington, DC, and
 Department of Health and Human Services, Region 7, Kansas City,
 Missouri, 16 FLRA 288 (1984) and cases cited therein.  Thus, the
 allegations against the McAllen and El Paso District Offices in this
 regard in Case Nos. 6-CA-1034 and 6-CA-1053 -- 6-Ca-1055 shall be
 dismissed.
 
    With regard to the allegations that the management officials at
 McAllen and El Paso bypassed the exclusive representative, the Dallas
 Region instructed these officials to implement the PGS without
 bargaining with the exclusive representative and to implement the PGS
 after consulting with employees regarding the employees' own
 accountability plans.  The McAllen and El Paso management officials
 followed these instructions by meeting with their employees,
 individually and in groups, for the purpose and effect of receiving the
 employees' input and soliciting employee suggestions on the prreparation
 of the plans.  Upon these findings, the Authority concludes that the
 McAllen District Office and the El Paso District Office engaged in
 conduct which bypassed the exclusive representative in violation of
 section 7116(a)(1) and (5).  See Department of Transportation, Federal
 Aviation Administration, Los Angeles, California, 15 FLRA 100 (1984);
 Social Security Administration, Baltimore, Maryland, 9 FLRA 909, 911
 (1982).  Although this conduct by the management officials at McAllen
 and El Paso was the result of the instructions received from the Dallas
 Region, no bypass violation was alleged against the Dallas Region.
 Accordingly, McAllen and El Paso management must bear the responsibility
 for this action.  See United States Department of the Treasury, Internal
 Revenue Service and Internal Revenue Service, Austin District, and
 Internal Revenue Service, Houston District, 23 FLRA No. 100 (1986).
 
    As to the third allegation that the El Paso District Office further
 violated the Statute by breaching its negotiated agreement, we agree
 with the Judge's conclusion that it is unnecessary to reach this issue.
 The Judged made no separate findings in this regard, and there were no
 exceptions to this portion of the Judge's decision.
 
    Regarding the allegation that the McAllen District Office conducted
 formal discussions with employees in conflict with section 7114(a)(2)(A)
 of the Statute and thereby violated section 7116(a)(1) and (8), the
 Authority has concluded, in Veterans Administration, Veterans
 Administration Medical Center, Muskogeel, Oklahoma, 19 FLRA No. 122
 (1985), that actual representation by an exclusive representative at a
 formal discussion is sufficient to demonstrate compliance with the
 statutory requirement that an exclusive representative "be given the
 opportunity to be represented." The Authority further stated that:
 "Neither section 7114((a)(2)(A) nor its legislative history supports a
 conclusion that Congress intended that a union representative must be
 given notification of a formal discussion in advance, specifically in
 his or her capacity as a union official." However, based on the Judge's
 findings that the exclusive representative did not receive notice which
 would apprise it of when the meetings would occur and that the exclusive
 representative was not in fact represented at these meetings, we
 conclude that the McAllen District Officew did not provide the exclusive
 representative with "the opportunity to be represented at" these
 meetings.  By such conduct the McAllen District Office acted contrary to
 section 7114(a)(2)(A) and thereby violated section 7116(a)(1) and (8) of
 the Statute.  Since it has not been shown that the instructions of the
 Dallas Region mandated this conduct, the McAllen District Office bears
 the sole responsibility for this violation.  See, for example, Kansas
 Army National Guard and National Guard Bureau, 10 FLRA 303 (1982).
 
    With regard to the additional allegation that the El Paso District
 Office failed and refused to provide information to the exclusive
 representative as required under section 7114(a)(2)(A), the Authority
 concurs with the Judge's reasoning and conclusion that this allegation
 should be dismissed on the basis that the information so requested was
 not "necessary" for collective bargaining so as to give rise to the
 Respondent's duty to furnish the information.  In view of this
 conclusion, we find it unnecessary to pass upon the Judge's additional
 reasoning that the information was not the type of data "normally
 maintained in the regular course of business."
 
                              V.  Conclusions
 
    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 affirms those rulings.  The Authority has considered the
 Judge's Decision, the positions of the parties and the entire record,
 and adopts the Judge's findings, conclusions and recommended Order to
 the extent consistent with this decision.
 
    We conclude that the Respondent Dallas Regional Office violated
 section 7116(a)(1) and (5) of the Statute by instructing the McAllen and
 El Paso District Offices to implement the PGS without bargaining with
 the exclusive representative of their respective employees.  We also
 conclude that the McAllen and El Paso District Offices violated section
 7116(a)(1) and (5) of the Statute by dealing directly with employees and
 thus unlawfully bypassing the exclusive representative of their
 respective employees.  We further conclude that the McAllen District
 Office violated section 7114(a)(2)(A) and thereby violated section
 7116(a)(1) and (8)l of the Statute by conducting formal discussions with
 its employees without affording its exclusive representative the
 opportunity to be represented at those discussions.
 
                                VI.  Remedy
 
    The Judge, among other things, ordered the withdrawal of
 accountability plans and the destruction of certain documentation that
 resulted from employing those plans;  that is, a status quo ante order.
 In our view, such a remedy is not warranted here.  We have balanced the
 nature and circumstances of the violations against the degree of
 disruption in Government operations that would be caused by such a
 remedy, and have taken into consideration the various factors set forth
 in Federal Correctional Institution, 8 FLRA 604(1982) in making this
 determination.
 
    The accountability plans here were formulated pursuant to the PGS.
 There is no question that management had a right to issue the PGS, which
 was formulated pursuant to the mandate of the Civil Service Reform Act
 (1978) to all agencies to develop specific critical elements and
 performance standards.  Moreover, a Congressional time mandate was
 involved.  As the Judge found, the Union was on notice of the agency's
 intended actions, although it was not given an opportunity to negotiate
 over the impact and implementation of those actions.  We also note, as
 indicated above, that a status quo ante remedy involving the withdrawal
 of accountability plans or the destruction of documentation that
 resulted from employing those plans would seriously disrupt the
 efficiency of the agency's operations.
 
    In these circumstances, we find that a status quo ante remedy is
 neither required nor necessary in order to effectuate the purposes and
 policies of the Statute.  An appropriate remedy for the violations which
 we find in these cases can be obtained by requiring the Dallas Region to
 instruct its McAllen and El Paso District Offices to bargain (1) on the
 manner in which employees will participate in the preparation of
 employee accountability plans required by the Personnel Guide for
 Supervisors, (2) on the implementation of those accountability plans,
 and (3) on the procedures and appropriate arrangements for employees
 whose performance appraisals have been adversely affected by such
 accountability plans.
 
    Furthermore, as we have stated in issuing prospective bargaining
 orders and rejecting contentions that a status quo ante remedy should be
 granted under circumstances where the potential disruption to an
 agency's operations was substantial:
 
          A prospective bargaining order is neither inadequate nor
       inherently restrictive of the parties' right to address the
       effects on unit employees of changes already made . . . .  Rather,
       it allows the parties the flexibility to bargain freely with
       regard to how past actions may have affected any given employee.
       Bargaining which explores such effects may itself reveal
       situations that call for retroactive remedial action, about which
       the parties are free to agree.
 
    Environmental Protection Agency, 21 FLRA No. 98 (1986), slip op. at
 3-4, quoted in Federal Aviation Administration, 23 FLRA No. 28 (1986),
 slip op. at 10.
 
    Based on the foregoing, we find that it is neither necessary nor
 appropriate for us to order adversely affected employees to be made
 whole, although that may be the result of the parties' bargaining which
 we are ordering.  We shall also issue appropriate orders to remedy the
 bypass and formal discussions violations by the McAllen and El Paso
 District Offices.
 
    We find merit in the General Counsel's exceptions to the limited
 scope of the posting ordered by the Judge.  The Dallas Region ordered
 all its subordinate offices not to bargain with AFGE.  We therefore find
 it appropriate and shall order that the Notice to be signed by the
 Dallas Region be posted at the Regional Office and at all subordinate
 offices throughout the Region, including the McAllen and El Paso
 District Offices.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that:
 
    A.  The Department of Health and Human Services, Social Security
 Administration, Dallas Region, Dallas, Texas, shall:
 
    1.  Cease and desist from:
 
    (a) Directing its subordinate offices which are represented by the
 American Federation of Government Employees, AFL-CIO, National Council
 of Social Security Administration-Field Operations Locals (AFGE), the
 exclusive representative of its employees, not to bargain with AFGE over
 the employee accountability plans formulated by these offices, pursuant
 to the Personnel Guide for Supervisors distributed by the Dallas Region
 in September 1980.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request of the American Federation of Government Employees,
 AFL-CIO, National Council of Social Security Administration-Field
 Operations Locals (AFGE), the exclusive representative of its employees,
 instruct the McAllen District Office and the El Paso District Officed to
 bargain with the exclusive representative on the manner in which
 employees will participate in the preparation of employee accountability
 plans required by the Personnel Guide for Supervisors issued by the
 Dallas Region in September 1980, on the implementation of those
 accountability plans, and on the procedures and appropriate arrangements
 for employees whose performance appraisals have been adversely affected
 by accountability plans formulated without employee participation
 established through negotiations with AFGE.
 
    (b) Upon the request of the exclusive representative, instruct the
 McAllen District Office and the El Paso District Office to give notice
 to AFGE Locals 3388 and 2991, respectively as appropriate, of any future
 employee accountability plans proposed for implementtion, and extend to
 the appropriate Local an opportunity to engage in appropriate bargaining
 prior to implementing such plans.
 
    (c) Post at the Dallas Regional Office and provide for posting at all
 subordinate offices of the Dallas Region where the employees are
 represented by AFGE, copies of the attached Notice to be furnished by
 the Federal Labor Relations Authority.  Copies of said Notice shall be
 signed by the Regional Commissioner for the Dallas Region, and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VI, 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.
 
    B.  The Department of Health and Human Services, Social Security
 Administration, McAllen District Office, McAllen, Texas, shall:
 
    1.  Cease and desist from:
 
    (a) Failing to afford representatives of the American Federation of
 Government Employees, Local 3388, AFL-CIO, appropriate notification of
 and an opportunity to be represented at any formal discussion between
 one or more representatives of this Office and one or more employees in
 the exclusive representative's unit at this Office concerning personnel
 policies and practices and other general conditions of employment.
 
    (b) Bypassing representatives of the American Federation of
 Government Employees, Local 3388, AFL-CIO, by dealing directly with unit
 employees regarding the development and implementation of accountability
 plans pursuant to the Personnel Guide for Supervisors distributed by the
 Dallas Region in September 1980.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Provide the American Federation of Government Employees, Local
 3388, AFL-CIO, with appropriate notification of and an opportunity to be
 represented at any formal discussion between one or more representatives
 of this Office and one or more employees in the exclusive
 representative's unit at this Office concerning personnel policies and
 practices or other general conditions of employment.
 
    (b) Post at the McAllen District Office, copies of the attached
 Notice to be furnished by the Federal Labor Relations Authority.  Copies
 of said Notice shall be signed by the District Manager, and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure 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 VI, 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.
 
    C.  The Department of Health and Human Services, Social Security
 Administration, El Paso District Office, El Paso, Texas, shall:
 
    1.  Cease and desist from:
 
    (a) Bypassing representatives of the American Federation of
 Government Employees, Local 2991, AFL-CIO, by dealing directly with unit
 employees regarding the development and implementation of accountability
 plans pursuant to the Personnel Guide for Supervisors distributed by the
 Dallas Region in September 1980.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Post at the El Paso District Office, copies of the attached
 Notice to be furnished by the Federal Labor Relations Authority.  Copies
 of said Notice shall be signed by the District Manager, and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VI, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the remaining allegations in the
 complaints concerning the McAllen District Office and the El Paso
 District Office of the Department of Health and Human Services, Social
 Security Administration, in Case Nos. 6-CA-1034, 6-CA-1053, 6-CA-1053-1,
 6-CA-1054 and 6-CA-1055 be, and they hereby are, 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
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT direct our subordinate offices of the Dallas Region which
 are represented by the American Federation of Government Employees,
 AFL-CIO, National Council of Social Security Administration-Field
 Operations Locals (AFGE), the exclusive representative of our employees,
 not to bargain with AFGE over the employee accountability plans
 formulated by these offices, pursuant to the Personnel Guide for
 Supervisors distributed in September 1980.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercisze of their rights assured by the
 Federal Service Labor-Management Relations Statute. WE WILL, upon
 request of AFGE, instruct the McAllen District Office and the El Paso
 District Office to bargain with the exclusive representative on the
 manner in which employees will participate in the preparation of
 employee accountability plans required by the Personnel Guide for
 Supervisors distributed in September 1980, on the implementation of
 those accountability plans, and on the procedures and appropriate
 arrangements for employees whose performance appraisals have been
 adversely affected by accountability plans formulated without employee
 participation established through negotiations with AFGE.
 
    WE WILL, upon request of AFGE, instruct the McAllen District Office
 and the El Paso District Office to give notice to AFGE Locals 3388 and
 2991, respectively as appropriate, of any future employee accountability
 plans proposed for implementation, and extend to the appropriate Local
 an opportunity to engage in appropriate bargaining prior to implementing
 such plans.
                                       Social Security Administration,
                                       Dallas Region
 
    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 any of its provisions, they may communicate directly with the
 Regional Director, Region VI, Federal Labor Relations Authority, 525
 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone
 number is:  (214) 767-4996.
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail to afford representatives of the American Federation
 of Government Employees, Local 3388, AFL-CIO, appropriate notification
 of and an opportunity to be represented at any formal discussion between
 one or more representatives of this Office and one or more employees in
 the exclusive representative's unit at this Office concerning personnel
 policies and practices and other general conditions of employment.
 
    WE WILL NOT bypass representatives of the American Federation of
 Government Employees, Local 3388, AFL-CIO, by dealing directly with our
 employees regarding the development and implementation of accountability
 plans pursuant to the Personnel Guide for Supervisors distributed by the
 Dallas Region in September 1980.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL provide the American Federation of Government Employees,
 Local 3388, AFL-CIO, with appropriate notification of and an opportunity
 to be represented at any formal discussion between one or more
 representatives of this Office and one or more employees in the
 exclusive representative's unit at this Office concerning personnel
 policies and practices or other general conditions of employment.
                                       Social Security Administration,
                                       McAllen District Office
 
    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 any of its provisions, they may communicate directly with the
 Regional Director, Region VI, Federal Labor Relations Authority, 525
 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone
 number is:  (214) 767-4996.
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT bypass representatives of the American Federation of
 Government Employees, Local 2991, AFL-CIO, by dealing directly with our
 employees regarding the development and implementation of accountability
 plans pursuant to the Personnel Guide for Supervisors distributed by the
 Dallas Region in September 1980.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
                                       Social Security Administration,
                                       El Paso District Office
 
    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 VI, Federal Labor Relations Authority, 525 Griffin
 Street, Suite 926, Dallas, Texas 75202, and whose telephone number is:
 (214) 767-4996.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 6-CA-785
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION, DALLAS 
 REGION, DALLAS, TEXAS,
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 AFL-CIO NATIONAL COUNCIL OF SOCIAL SECURITY 
 ADMINISTRATION-FIELD OPERATIONS LOCALS,
    Charging Party
 
    Case No. 6-CA-1034
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION, McALLEN DISTRICT 
 OFFICE, McALLEN, TEXAS,
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 3388, AFL-CIO, 
    Charging Party
 
    Case Nos. 6-CA-1053, 6-CA-1053-1, 6-CA-1054, 6-CA-1055
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION, EL PASO 
 DISTRICT OFFICE, EL PASO, TEXAS,
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 2991, AFL-CIO
    Charging Party
 
 
    Wilson G. Schuerholz,
       For the Respondents
 
    Elizabeth A. Martinez and
    James E. Dumerer,
       Attorneys for the General Counsel 
       Federal Labor Relations Authoritiy
 
    Sylvester Overturf,
       For the Charging Party
 
    Before:  ISABELLE R. CAPPELLO,
       Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. Section 7101 et seq.
 (Supp. III, 1979) (hereinafter referred to as the "Statute") and the
 Rules and Regulations of the Federal Labor Relations Authority
 (hereinafter, the "Authority"), 5 CFR Ch. XIV, Section 2410 et seq.
 
    Complaints involving three Texas offices of the Social Security
 Administration were issued on June 25, 1981 (Case Nos. 6-CA-1053,
 1053-1, 1054, and 1055), on May 27, 1981 (Case No. 6-CA-1034), and on
 July 27, 1981 (Case No. 6-CA-785).  An Order dated August 26, 1981,
 consolidated these cases for hearing.
 
    The hearing was held on September 22 and 23, 1981, in Dallas, Texas.
 The parties appeared, adduced evidence, and examined and cross-examined
 witnesses.  Briefs were submitted on November 9, on behalf of the
 Respondents, and on November 13, on behalf of the General Counsel.
 Based upon the record made by the parties, my observation of the
 demeanor of the witnesses, and the briefs, I make the following findings
 of fact, conclusions of law, and recommended orders.
 
                                  Issues
 
    All the issues raised in these cases concern employee accountability
 plans whichs the Dallas Regional Office of the Social Security
 Administration (hereinafter "SSA") ordered formulated by and implemented
 in the district offices of the Dallas Region.  Two district offices, at
 El Paso and McAllen, are the respondents in two of the complaints.  The
 Dallas Regional Office is the respondent in the third complaint.
 
    Each complaint alleges violations of Sections 7116(a)(1) and (5) of
 the Statute, in that respondents refused to bargain over the impact and
 implementation of the plans and subsequently implemented them,
 unilaterally.
 
    In Case No. 6-CA-1034, concerning the McAllen office, it is alleged
 that respondent conducted a Section 7114(a)(2)(A) "formal meeting",
 without affording Local 3388 of the American Federation of Government
 Employees ("AFGE") an opportunity to be present, thereby violating
 Sections 7116(a)(1) and (8) of the Statute.
 
    In Case Nos. 6-CA-1053, 1053-1, 1054 and 1055, concerning the El Paso
 office, it is alleged that respondent refuses to turn over draft
 proposals for accountability standards, that the drafts constitute
 necessary and relevant information requested by Local 2991 pursuant to
 Sections 7114(b)(4) of the Statute, and that, therefore, respondent is
 violating Sections 7116(a)(1) and (8) of the Statute.
 
    Also, at the El Paso Office, it is alleged that respondent breached a
 collective bargaining agreement requiring consultation and/or
 negotiations of changes in working conditions, in violation of Sections
 7116(a)(1) and (5).
 
    At both the El Paso and McAllen Offices there is also an allegation
 that respondents bargained directly with employees in violation of
 Sections 7116(a)(1) and (5).
 
                       Statutory Provisions Involved
 
    Section 7114(a)(2) provides, in pertinent part, that:
 
          An exclusive representative of an appropriate unit in an agency
       shall be given the opportunity to be represented at --
 
          (A) Any formal discussion between one or more
 
 representatives of the
 
       agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general condition of employment . . . .
 
    Section 7114(b)(4) provides, in pertinent part, that:
 
          The duty of an agency and an exclusive representative to
       negotiate in good faith under subsections (a) of this section
       shall include the obligation -- . . .
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data --
 
          (A) which is normally maintained by the agency in the regular
       course of business;
 
          (B) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel or
       training provided for management officials or supervisors,
       relating to collective bargaining.
 
    Section 7116(a) provides, in pertinent part, that:
 
          For the purpose of this chapter, it shall be an unfair labor
       practice for an agency --
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;  . . . or
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
                             Findings of Fact
 
    1.  Since August 30, 1979, AFGE has been the exclusive representative
 for a nationwide consolidated unit of employees of SSA.  Employees of
 SSA are employed in one central office and in five other components.
 One of the five components is Field Operations, and is the one here
 involved.  SSA manages its field operations through ten regional
 offices.  The regional offices manage numerous district offices, through
 area directors.
 
    2.  On October 10, 1979, AFGE gave the following explanation to AFGE
 locals on how consolidation would change bargaining obligations:
 
          As a practical matter all local changes will be dealt with
       locally by the union organization which historically held that
       responsibility.  Technically the new level of recognition would
       require that the Commissioner of Social Security bargain with AFGE
       National President Blaylock anytime a district manager wanted to
       change something.  But both parties have agreed that an effective
       LMR program requires that they delegate responsibilities to those
       in a position to know, to those who are most affected and have
       historically held the responsibility.
 
    (JtEx-20.2) /1/
 
    3.  On October 18 and December 31, 1979, AFGE and SSA exchanged
 designations of responsibilities to sub-level representatives.
 
    3a.  On October 18, the National President of AFGE, Kenneth T.
 Blaylock, sent a letter to the Commissioner of SSA in which he outlined
 delegations of authority to administer the nationwide consolidated unit.
  AFGE established a general committee composed of a Central-Office local
 and five National Councils.  The National Councils correspond to the
 five components of SSA.
 
    3b.  Each member of the AFGE general committee has a president.  The
 chief spokesperson of the committee is delegated the authority to deal
 directly with the Commissioner of SSA, or his designee, "on all matters
 which are national in scope and appropriate under the Civil Service
 Reform Act ('CSRA')." (JtEx-19.2) The six presidents on the committee
 are delegated the authority to deal directly with the heads of their
 respective components on matters which affect their components.  The
 component presidents may further delegate authority for those matters
 which are local or regional.
 
    3c.  On December 31, the Commissioner of SSA replied to Mr. Blaylock.
  Management counterparts were designated.  The Commissioner agreed that
 issues should be resolved "at the local level whenever possible," but
 took exception to some views of AFGE on bargaining levels.  See JtEx-23.
 Att. A.
 
    4. Other evidence pertaining to the understanding of the parties as
 to the appropriate bargaining level includes the following.
 
    4a.  On October 21, 1979, the Executive Vice President of the AFGE
 National Council of SSA Field Operations sent a letter to the
 Commissioner of SSA to "clarify" delegations of authority in respect to
 field offices.  (JtEx-21.1) The letter advised that there would be ten
 Regional Vice-Presidents "who shall serve as the chief representative of
 the Council for Region which he or she represents." (JtEx-21.1), and
 that "the Regional Vice Presidents must be timely and properly notified
 of changes in policies and practices which may be bargainable."
 (JtEx-21.2)
 
    4b.  The letter also advised that presidents of locals which had
 historically held recognition were all Council representatives and
 should be notified of changes proposed at the local level and given the
 opportunity to "meet and confer" about the proposals.  (JtEx-21.2)
 
    4c.  The letter also advised that:  "Generally, whenever an issue or
 matter of LMR (labor-management relations) involves more than one Local
 of an SSA region, the authority for LMR shall rise to the Regional Vice
 President of the National Council to act on behalf of the affected
 Locals of the region." (JtEx-21.3)
 
    4d.  Finally, the letter advised "concerning the nature of the
 authority that we have delegated to our Regional Vice Presidents and to
 the Local Presidents," that "(a)s representatives of this Council, they
 shall obtain all rights to this union under law, in particular the right
 to enforce these rights by complaint of Unfair Labor Practice and the
 right to bargain on conditions of employment." (JtEx-21.3)
 
    4e.  The Regional Vice President of the Dallas Region, Sylvester
 Overturf, testified to the understganding of AFGE on delegations of
 authority.  He testified that regional vice presidents are "to bargain
 on issues that d(o not) affect anything above the regional level." (TR.
 88)
 
    4f.  The labor relations officer of the Dallas Region, Kenneth K.
 King, testified to the understanding of SSA as to appropriate bargaining
 levels.  It is as follows:
 
          My understanding always was that whatever level initiated it --
       if the national level initiated it, the national level had the
       duty to bargain with the national component of AFGE.  If the
       regional level initiated it, the regional level had the duty to
       give advance notice and negotiate as appropriate with the regional
       head of AFGE, who is Mr. Overturf over here.  If the change takes
       place on the district level, it would be the responsibility of the
       district manager to give the District Union president or head of
       the Union advance notice and to negotiate as appropriate.
 
    (TR 256)
 
    5.  Effective December 5, 1979, John Harris was appointed to the
 position of President of the National Council of Field Operations, and
 Sylvester Overturf to that of Regional Vice President of the Dallas
 Region of SSA.  Martha McSteen is the Regional Commissioner of the
 Dallas Region, and Mr. Overturf's counterpart for union-management
 matters.  The Dallas Region covers five States and manages over 33
 district offices, /2/ including the ones at El Paso and McAllen.  At
 McAllen, Pablo Hernandez held the position of President of Local 3388
 from 1977 up until March, 1981.  At El Paso, Daniel Avila has been
 President of Local 2991 for two years.
 
    6.  In April 1980, /3/ SSA and AFGE exchanged written proposals
 concerning a Master Labor Agreement, in preparation for impending
 negotiations.  Those of the Union attempt to cover all areas subject to
 bargaining.  Until such time as a Master Agreement is agreed to, the
 terms and conditions of all existing local AFGE agreements have been
 extended and are currentlyh in effect.  With regard to the instant
 cases, there are collective bargaining agreements in effect in the
 McAllen and El Paso District Offices of SSA.
 
    6a.  Around April 7 or 8, AFGE submitted proposed Article 21, dealing
 with "Critical Elements" and "Performance Standards," two factors which
 the CSRA, in Section 203, requires each agency to develop for each job.
 Article 21 also covers such items as twice yearly performance interviews
 and their minimum content.
 
    6b.  As of the time of the hearing on these cases, only a few
 articles of the Master Agreement had been agreed to "after probably a
 year or more of negotiations." (TR 248) Negotiations are now at the
 point of impasse.
 
    7.  On April 28, Regional Commissioner McSteen sent a letter to
 Regional Vice President Overturf, "as an official of a AFGE." (JtEx-1)
 His comments and recommendations were solicited on a "draft PGS
 Supplement," compiled by going through existing chapters of the
 Personnel Guide for Supervisors (PGS), drawing together in one place all
 of the various areas that relate to accountability of employees, and
 providing examples of accountability plans for specific jobs.  (JtEx-1)
 A copy of the draft was attached to the letter.  A response by May 7 was
 sought.
 
    7a.  The draft PGS Guide (hereinafter, also referred to as the
 "Guide") applies only in the Dallas Region.  Other regions have
 different accountability plans;  and some regions have none.
 
    7b.  A primary purpose of the Guide is to set up "a means of
 documenting performance requirements and measuring actual performance,
 such documentation to "serve as a basis for annual employee appraisal
 and performance rating." (JtEx-2.3) It is also to provide a means for
 documenting adverse actions, awards, and the granting and denial of
 within-grade increases.  Lack of such documentation has created "many of
 the documentation problems experienced in the past." (GCEx-3.2)
 
    7c.  The concept of employee accountability set out in the PGS Guide
 is not a new one in the Dallas Region, which has had a long-established
 policy of periodic performance discussions and performance evaluations,
 based on quality, quantity and timeliness of work, and the use of
 statistics for measuring performance.  But until the advent of the
 Guide, there have been no written accountability plans with fixed
 numerical standards.  The written plans are to cover the "major
 functions of each position" and set out the "expected level of
 satisfactory performance, and the methods to be used in measuring that
 performance." (JtEx-2.2) The Guide also covers such matters as twice
 yearly performance interviews and their minimum content, also covered by
 AFGE's proposed Article 21.  See finding 6a, above.
 
    7d.  The Guide leaves to each district office the formulation of the
 actual plans and the insertion of numerical standards, in recognition of
 the fact that these are matters best left to local management, in view
 of local problems and circumstances.  Not all jobs in the district
 offices are covered by the samples furnished by the Dallas Regional
 Office.
 
    7e.  The written plans were to cover the employee appraisal period
 from October 1980 through October 1981 (TR 48, 81) at which time the
 system mandated by the CSRA was to go into effect.  The Guide refers to
 the CSRA, several times, and notes that "SSA centrally is in the process
 of developing a performance appraisal system for all employees," (that
 t)he system will include performance standards which will set out
 critical elements of each field position, "(and that i)t is not expected
 that the performance appraisal system will be implemented prior to
 October 1, 1981." (JtEx-2.5)
 
    7f.  Management officials in the Dallas Region expressed the view
 that the "only change" represented by the Guide was "to pull everything
 together, which is really not a change, and to require a written plan in
 each office so that each employee would know what those goals were and
 how they could contribute toward meeting those goals." (TR 254-255)
 
    8.  On May 4, Mr. Overturf responded to Commissioner McSteen's
 letter. He stated that:  "It is the position of the AFGE/FO National
 Council that employee accountability and performance standards are
 matters subject to negotiations." (JtEx-3) Accordingly, he declined to
 accept the offer to make "comments." "At the instructions of the
 President, SSA/FO National," he made a request for negotiations over the
 matter.  (JtEx-3)
 
    9.  Subsequently, Mr. Overturf and Mr. Harris got together about the
 draft Guide and decided that it was not feasible for them to get
 involved in negotiating on a subject that was involved in negotiations
 ongoing at the national level, "(b)ecause anything that (they) did or
 any issue involving negotiability, all this would be superceded by
 whatever occurred in the national contract." (TR 28-29)
 
    10.  Accordingly, on May 21, Mr. Overturf wrote another letter to
 Commissioner McSteen in which he explained "the National Counsel's
 position" as being that these were national issues, negotiations on them
 were underway, and that any regional plan would be only temporary, and
 probably not uniform with plans in other regions, or the plan eventually
 developed on a nationwide basis.  (JtEx-4) He stated the "Council's
 position that implementation of the proposed regional plan abandoned."
 (JtEx-4)
 
    11.  Shortly after receipt of the May 21 letter, Mr. King, the labor
 relations officer for the Dallas Region, called Mr. Overturf about it.
 
    12.  On July 23, Regional Commissioner McSteen informed Mr. Overturf
 that "the regional employee accountability guide (would) not be issued
 or implemented for the time being." (JtEx-6) This advice was relayed to
 Mr. Overturf in a letter concerning another matter.
 
    13.  Regional Commissioner McSteen disagreed with the Union position
 that performance standards would be set in the employee accountability
 plans.  However, she was aware that the Authority was expected to be
 issuing a decision on the negotiability of performance standards, and
 decided it would be wise to await the decision before proceeding with
 the proposed Guide.
 
    14.  On July 31, the awaited decision was issued.  See National
 Treasury Employees Union and Department of the Treasury, Bureau of
 Public Debt (hereinafter referred to as "Bureau of Public Debt"), 3 FLRA
 769, No. 119, Case No. 0-NG-56 and also American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, Washington, D.C. (hereinafter referred to as "OPM"), 3 FLRA
 784, No. 120, Case Nos. 0-NG-177-2, 3, 4 and 5.
 
    15.  On August 13, Regional Commissioner McSteen sent a letter to Mr.
 Overturf which reads:
 
          On April 26, we asked you to comment on a draft PGS guide on
       accountability.  On May 4, you responded that you would not
       comment since it was AFGE's position that accountability and
       performance standards were negotiable.  On May 21, you further
       requested that we delay regional implementation of our
       accountability guide.  We have honored your request up to this
       time.
 
          On July 31, the FLRA ruled on the negotiability of performance
       standards in cases numbered 0-NG-56 and 0-NG-177-2/5.
 
          This is to inform you that we now plan to issue and implement
       the accountability guide on September 2, 1980.
 
          We are providing a copy of the draft guide, which is unchanged
       from the one previously furnished.
 
    (JtEx-7)
 
    16.  The Regional Commissioner expected the Union to make some
 proposals.  After vainly waiting four or five days past the September 2
 implementation date mentioned in her letter to Mr. Overturf, she put the
 Guide into the printing and distribution channels, which amounted to
 implementation.
 
    17.  The Guide went out to districts offices with a letter
 instructing them to involve employees in the formulation of local
 accountability plans, to "consult" with local AFGE officials, in offices
 organized by AFGE, and to "bargain" with local NFFE officials, in
 offices organized by NFFE.  (GCEx-3.1) It also instructed them that:
 "Since the guide is initiated by the Regional Office, the duty to
 bargain (at AFGE-organized offices) is between the Regional Commissioner
 and the Regional Vice Presidednt of AFGE.  This obligation has been
 met." (GCEx-3.1)
 
    18.  The district offices were also instructed that the plans had to
 be approved by both the district manager and the area director.
 
    19.  On August 18 or 19, Mr. Overturf received the August 13 letter
 from Regional Commissioner McSteen.  He was preparing to go to the
 national caucus of AFGE, which started August 24.  He was unable to
 reach Mr. Harris about a response to the letter.  Both Mr. Harris and
 Mr. Overturf went to the caucus before it started.  Once there, the main
 concern of each was getting elected to office.  They were unable, in the
 context of the caucus, which is a political function, to discuss a
 response to the August 13 letter.  Mr. Overturf returned to his home on
 August 30 and to work, on September 2.  On September 5, he consulted
 with Mr. Harris about a response;  and they agreed to the content of
 one.  Mr. Overturf testified that he did not feel it would have been
 "useful" to pick up the phone, and ask the agency for an extension for
 time to respond, "because we had to get something in writing." (TR 72)
 
    20.  On September 8, Mr. Overturf responded, in writing, to the
 August 13 letter.  He explained his delay in answering on the ground
 that he received the letter shortly before his scheduled departure to
 attend the AFGE national caucus, and that he had not seen a copy of the
 Authority decision at the time he received the letter.  He objected that
 the Guide constituted changes in working conditions that were within the
 negotiating authority of the majority unit and which were still under
 negotiation at the majority-unit level.  He explained that he
 interpreted Regional Commissioner McSteen's action to be a unilateral
 decision that the entire area of employee accountability and performance
 standards was non-negotiable, and that this was contrary to the
 Authority's decision, which held that decisions as to negotiability must
 be made concerning specific proposals.  He stated that "it is the
 position of SSA/FO NC that the issuance of the Regional Supplement to
 PGS Chapter V, Guide 4 must be rescinded." (JtEx-8)
 
    21.  On September 24, Regional Commissioner McSteen replied to Mr.
 Overturf's September 8 letter.  She advised him that he had not
 requested negotiations or submitted counterproposals, after the notice
 contained in her August 13 letter;  that they would have been
 considered;  but that since none were received by September 2, the Guide
 had been implemented and would soon be in all offices.
 
    22.  On October 17, AFGE's Executive Vice President, National Council
 of SSA/FO Locals, filed the charge upon which the complaint in Case No.
 6-CA-785 is based.
 
                        The McAllen District Office
 
    23a.  In the McAllen District Office, Pablo Hernandez, the President
 of AFGE's Local 3388, became aware of accountability plans for that
 office in October, when he was asked to attend a meeting with the
 Assistant District Manager, William H. Fitzgerald, for an explanation of
 the plans.  Mr. Hernandez made a request to negotiate the implementation
 of the plans, at that time;  and the request was rejected on the ground
 that the bargaining duty had been taken care of at the regional level.
 Mr. Fitzgerald did "discuss" with Mr. Hernandez the method of obtaining
 employee input (TR 191 and see also TR 186), and also told him there
 would be meetings with employees in each of the four modules in the
 office. The Union was given a "general invitation" to be "present" at
 the meetings, but was given no role to play.  (TR 186) No notice was
 given to the Union, qua the Union, as to when the meetings would take
 place.  The meetings started about mid-November and continued into
 December.  Union representations were scattered throughout each module;
 and it was "common knowledge" as to when each module had its meeting.
 (TR 189)
 
    23b.  On November 1, the supervisor of Service Representatives sent
 each employee a note seeking "facts, not figures" as to what "items" of
 their job they felt should be looked at, to hold them accountable.
 (JtEx-14) He urged them to comment, and set a deadline of November 19.
 A sample plan of another district office was attached to the notes.
 
    23c. On December 1, the McAllen District Manager sent a memorandum to
 all employees advising them of the formulation of the accountability
 plans and seeking their input, through their supervisors who "w(ould) be
 discussing your accountability plans with you." (JtEx-10.2) The Union
 was not consulted about the memorandum prior to issuance.  The President
 of Local 3388 received a copy only "(a)s an employee." (TR 98)
 
    23d.  The Service Representatives were called together by management
 in early December.  No Union representatives attended the meeting.
 Management asked for their comments on the accountability plans.  Some
 questions were asked by employees that could not be resolved.  At a
 second meeting, "a week later on (their) regular weekly transmittal
 meeting to discuss any incoming material," the supervisor reminded the
 employees that there were some items left unanswered from the previous
 meeting and that he had "no definite reply." (TR 108) The Union was not
 represented at the second meeting.
 
    23e.  On December 2, the President of Local 3388 received a copy of a
 note from his supervisor which was addressed to all "Title 16, SSI"
 employees.  (JtEx-11) He was such an employee.  The note referred to
 copies of plans previously distributed and sought employee input by
 December 4.
 
    23f.  The meeting for the Title 16 SSI employees took place on
 December 4.  Employees in the other modules also attended meetings about
 the plans.
 
    23g.  The plans were implemented at the McAllen District Office
 around January 1, 1981, without notice to Local 3388.
 
    23h.  Just two or three days after learning of the implementation,
 Local 3388, on January 29, 1981, requested negotiation over the
 implementation and adverse effects (which the plans might) have on
 members of the bargaining unit." (JtEx-12.1)
 
    23i.  On February 4, 1981, by memorandum to Local 3388, the Assistant
 District Manager declined the requested negotiations "at the local
 level." (JtEx-13.2) The reason given was that the PGS Guide was
 initiated by the Regional Commissioner and that "the only latitude given
 local management was the determination of local numerical objectives,
 not implementation of the plan itself." (JtEx-13.2) The memorandum
 explained that the duty to bargain was at the regional level, and had
 been met.
 
    23j.  Prior to the written accountability plan implemented on January
 1, the McAllen District Office had used a very informal plan which
 varied from module to module.  Statistics had always been used;  but the
 written plan gave the supervisors "more figures to work with and the
 evaluations should be more accurate." (TR 184) The written plans
 eliminated "a lot of the subjectivity." (TR 185)
 
                        The El Paso District Office
 
    24a.  In the El Paso District Office, in August, Daniel M. Avila, the
 President of AFGE Local 2991, approached the Assistant District Manager,
 Francisco Martinez, to ask "what, if anything they were going to use as
 far as evaluating our performance for the latest performance appraisal
 period." (TR 111) Mr. Martinez indicated that "he wished to work with me
 on it as a representative of the Union, and he said that at that point
 in time he wished to come up with a mutually agreed plan." (TR 111-112)
 
    24b.  In September, the El Paso District Office received the Guide
 from the Dallas Regional Office and furnished a copy of it to Mr. Avila.
 In October, management held several meetings with Mr. Avila, to discuss
 the plans to be developed pursuant to the Guide.
 
    24c.  On October 31, Mr. Martinezk approached Mr. Avila and indicated
 that there were going to be some unit meetings regarding the plans.  Mr.
 Avila requested that Union observers be present, and designated certain
 represedntatives in each unit to be present as "Union observers, Union
 representatives." (TR 112-113) Management understood that the designated
 persons were to be at the meetings as Union "representatives." (TR 161,
 162)
 
    24d.  The unit meetings began on November 4.  Mr. Avila instructed
 the Union people he chose to attend the meetings of the dates and times
 of the meetings, and also that they were to give input only as
 employees, and not on behalf of the Union.  The union designatees
 attended the meetings on "official time." (TR 139) It was the intent of
 Mr. Avila to negotiate at some future time.
 
    24e.  Rough drafts of accountability plans were passed out to
 employees at the meetings.  Employees gave comments.  Supervisors made
 notes.  Suggestions were accepted from employees, including those
 attending on official time granted by management.
 
    24f.  On November 21, a labor-management meeting was held at the
 request of Mr. Avila.  At the meeting Mr. Avila stated that an unfair
 labor practice charge had been filed by the National Council of SSA
 Field Office Locals against the Regional Commissioner for issuing "the
 Regional PGS instructions on accountability." (JtEx-15.1) He requested
 negotiations on the numbers plugged into the plans.  The District
 Manager refused.  She stated that they were not negotiable, and that she
 had been instructed "to secure employee input and that was it." (TR 116)
 
    24g.  At the November 21 meeting, Mr. Avila made it clear that he
 would not take a position as to the acceptability of any plan until the
 Area Director had acted on the drafts sent to him for review.  Mr. Avila
 then requested a copy of the drafts sent to the Area Director, and
 recalled the District Manager replying that she saw no reason why she
 could not comply with this request.  The District Manager testified that
 she gave him no answer, at the time.  The District Manager seemed to be
 surer of her facts and was corroborated by another witness.
 Accordingly, I credit the testimony that no answer was given to Mr.
 Avila, at the November 21 meeting.  Mr. Avila stated that he needed the
 drafts to determine "what the impact was going to be as far as what each
 specific position was going to be concerned with, as far as the issues
 involved for each one." (TR 117) He testified further that:  "Before
 they went up to the Area Director I wanted to know how she specifically,
 or management specifically, felt as far as the accountability plans were
 concerned." (TR 117)
 
    24h.  On November 24, Mr. Avila sent the District Director a
 memorandum in which he made four proposals.  All but one were adopted.
 The rejected one proposed the used of "median" performance, in the unit,
 as a basis for individual performance measurement.  (JtEx-15.2 and see
 TR 199)
 
    24i.  On December 9, Mr. Avila made a written request for copies of
 the drafts to be sent to the Area Director.  The drafts were being
 "assemble(d)," when this request was made.  (TR 200)
 
    24j.  On December 16, shortly before the drafts of the plans were
 sent to the Area Director, the District Manager replied to Mr. Avila's
 request for copies of them.  Her reply was that her drafts would not be
 complete until she received the comments of the Area Director.  The
 requested drafts were never given to Local 2991.
 
    24k.  After the Area Director returned the draft plans, copies were
 made and given to Local 2991 and employees during the week of January
 19.  The major difference between the samples furnished with the Guide
 and the plans implemented was that a range of numbers were inserted into
 the formats furnished with the Guide.  Where no formats were furnished,
 the El Paso office developed plans "from scratch." (TR 159)
 
    24l.  The collective bargaining agreement between Local 2991 and the
 El Paso Office provides for "consultation and/or negotiation between the
 parties "on all personnel policies and practices or other matters
 affecting working conditions of employees in the Unit, which are within
 the discretion of the Employer . . . . " (TR. 123) This agreement was
 entered into on January 12, 1978, before the nationwide consolidated
 unit was recognized.
 
    24m.  The District Manager testified that "full consultation" with
 Local 2991 took place in regard to the plans, and that "maybe we
 negotiated some at the same time." (TR 206) Her labor-relations officer,
 however, admitted that no negotiations took place.
 
    24n.  While supervisors at the El Paso office had always used
 statistics in evaluating employee performance, before the implementation
 of the written accountability plans, they have begun to rely upon them
 "very heavily," since the implementation, and feel they have "less
 leeway" now in using their "judgment" and considering "extenuating
 circumstances." (TR 126, 147) Under the written plans, one supervisor
 has graded solely on the statistical aspect of performance and refused
 to consider the fact that one employee had spent time helping a blind
 employee develop his workload.
 
                        Discussion and Conclusions
 
    A.  On the alleged failure to engage in impact-and-implementation
 bargaining over changes in working conditions.
 
    1.  The parties do not dispute the accepted principle of Federal
 labor-relations law that an agency is required to give the exclusive
 representative prior notice and the opportunity to negotiate regarding
 substantial changes in working conditions that have an adverse impact
 upon bargaining-unit employees.  See, e.g. Office of Program Operations,
 Field Operations, Social Security Administration, San Francisco Region
 and Council of District Office Locals, American Federation of Government
 Employees, San Francisco Region, 5 FLRA No. 45 (1981).  The dispute here
 begins, rather, with the question of whether any substantial changes in
 working conditions actually occurred when (1) the Dallas Regional Office
 of SSA issued, to the district offices of the region, a Personnel Guide,
 providing procedures and guidelines necessary to implement employee
 accountability plans;  and (2) when the district offices implemented the
 plans they formulated, pursuant to the Guide.  The preponderance of the
 evidence indicates that changes of substance did occur, in both
 situations, and that they had reasonably foreseeable adverse effects
 upon employees.
 
    While there had long been a concept of employee accountability
 throughout the offices of the Dallas Region, there had never been any
 written or formal plans for measuring accountability, prior to the
 issuance of the Guide.  Before the Guide, employees had been judged on a
 very informal basis that varied from office to office, and module to
 module.  After the Guide, supervisors found themselves with less leeway
 to make subjective evaluations and to consider extenuating
 circumstances.
 
    Another indicia of the substance of the change mandated by the Guide
 is the process required of the district offices in formulating their
 plans pursuant to it.  It is a lengthy one, requiring input from
 employees, consultation with AFGE locals, bargaining with NFEE locals,
 and double review of the plans, by the district manager and the area
 director.
 
    Another indicia is to be found in one of the purposes which the plans
 are to serve.  Management in the Dallas Region had suffered many
 problems, in the past, from the absence of documentation to justify
 adverse actions, awards, and the granting and denial of within-grade
 increases.  The written plans are to supply the missing documentation
 and correct this serious problem.
 
    As for the plans formulated by the district offices pursuant to the
 regional guidelines, it was established that they were adapted by the
 district offices to local problems and circumstances, with discretion
 exercised as to the numerical standards used in measuring performance,
 and as to developing job formats "from scratch," when the office had
 unique positions not covered by samples furnished with the regional
 guidelines.  (TR 159) Thus, a change of substance was created in each
 district office by the formulation of specific plans, pursuant to the
 Regional Office Guide.
 
    2.  The next disputed issue for resolution concerns the appropriate
 bargaining level when a newly-recognized, nationwide consolidated unit
 is negotiating a master agreement with an agency, and an activity
 proposes to change an existing condition of employment.  Consideration
 of this question begins with the Authority's decision in Department of
 Health and Human Services, Social Security Administration and Local
 1346, American Federation of Government Employees, AFL-CIO, 6 FLRA 202,
 No. 33 (June 25, 1981), (hereinafter, "Local 1346") which both parties
 cite in their briefs.  See GCBr 11-12 and RBr 11 and 34.  Local 1346
 involves the same agency and the same consolidated AFGE unit as the
 instantt proceeding.  Local 1346 had an agreement which preceded the
 certification of the nationwide consolidated unit;  and Local 1346
 sought to renegotiate up to a third of its articles while negotiations
 at the national level were in progress.  The issue resolved by the
 Authority was "whether, following the certification of AFGE for a
 nationwide consolidated unit, there remained a duty to bargain new
 conditions of employment at the local level pursuant to the reopener
 clause contained in the local agreement." (6 FLRA at 203, emphasis by
 the Authority).  The Authority ruled that no such duty remained, and
 that a "requirement that substantive bargaining pursuant to a reopener
 must take place with respect to a portion of the newly consolidated unit
 would be antithetical to the goal of stability and to the purpose of
 consolidation." 6 FLRA at 204.  A caveat to the Authority's decision was
 expressed as follows:  "This is not to say that there exists any
 impediment to the parties at the level of exclusive recognition agreeing
 to authorize supplemental negotiations at a sub-level." (6 FLRA at 204,
 fn. 2)
 
    Both the rationale and the caveat of the Local 1346 decision apply
 here.  AFGE is conducting national negotiations on an employee appraisal
 system. Albeit different in some respects from what is on the national
 bargaining table, the regional guidelines for accountability plans, and
 the district offices plans themselves, are also concerned with what
 amounts to an employee appraisal system.  The Guide and the plans are
 "new", in some significant respects, as already discussed.  Other
 regional offices have different plans in place;  some regional offices
 have none.  Clearly, the "appropriate unit" for bargaining under the
 Local 1346 rationale, is at national level.  See Section 7103(a)(12) of
 the Statute, cited in Local 1346, 6 FLRA at 203.
 
    However, the parties here have just as clearly recognized sub-level
 negotiations.  Shortly after recognition of the nationwide consolidated
 unit, the parties agreed that regional bargaining is to take place where
 the region initiates a change, and it has no effect beyond the region.
 They are also in agreement that when a management change takes place, at
 the district level, it is the responsibility of the local
 union-management team to negotiate, at least where there is a local
 agreement in effect, as is the case at the El Paso and McAllen offices.
 
    3.  The remaining issues to be resolved are whether there were
 failures to bargain in good faith by the Dallas Regional Office and the
 El Paso and McAllen District Offices.  In view of the conclusions above
 discussed, and the facts established by the record, it must be concluded
 that failures to bargain in good faith, as to the plans, but not as to
 the Guide, did occur at each establishment.
 
             At the Dallas Region level, in Case No. 6-CA-785
 
    The evidence of record shows that management in the Dallas Regional
 Office gave a 20-day notice to AFGE's Regional Vice President for the
 Dallas Region of its intent to implement the Guide;  that it waited
 about 24 days after giving the notice and before implementing the Guide;
  and that no request to bargain was received during this period.  No
 failure to bargain in good faith can be found, on these facts.
 
    Nevertheless, the General Counsel charges bad faith in implementing
 the Guide.  One argument is that the letter giving notice amounted to
 announcing a "fait accommpli," and thereby excused the Union from giving
 a timely response.  (GCBr 16) This is not a fair reading of the letter,
 however.  The letter referred to a prior request of the Union to
 negotiate performance standards, and cited the Authority's recent
 decisions on the negotiability of performance standards.  Had the Union
 studied these decisions within the 20-day notice period, it would have
 found that they held "significant aspects of performance appraisal
 systems may be negotiated." See Bureau of Public Debt, 6 FLRA at 675 and
 also page 777 referring to the fact that management must "negotiate on
 procedures and appropriate arrangements with respect to employees
 adversely affected by management's exercise of its right." See also the
 OPM decision, 6 FLRA at 789, which was also cited in the letter.
 Reference to the request of AFGE to negotiate, and citation of these
 decisions was a clear indication that management expected to negotiate
 on these matters.
 
    Another alleged act of bad faith is that the Dallas Regional Office
 did not contact John Harris, the President of the National Council,
 after Sylvester Overturf, the Regional Vice President, made requests to
 elevate the matter to the national level.  See GCBr 16.  This allegation
 fails because the record established that Mr. Sylvester was the chief
 representative of the National Council, in the Dallas Region, and the
 Union representative delegated to receive timely notice of changes.  He
 also spoke for the National Council in his correspondence with regional
 management.  Therefore, contact by management with Mr. Overturf was
 tantamount to contact with the National Council.
 
    The General Counsel also charges bad faith in that the Dallas
 Regional Office did not communicate to Mr. Overturf its position on
 elevating the issue to the national level.  See GCBr 16.  Undoubtedly
 communications between the parties could have been better, from both
 directions. But the sparsity on management's part does not rise to the
 level of an unfair labor practice.  Management was, after all, uncertain
 as to what was bargainable, at any level, until the Authority issued its
 decisions in the OPM and Bureau of the Public Debt cases.  Its decision
 to await the outcome of these cases before communicating its views to
 Mr. Overfturf was reasonable, and not an act of bad faith.  Within a
 reasonable time after issuance of the decisions, the Dallas Region got
 in touch with Mr. Overturf, to start the bargaining process.  See
 findings 14 and 15, above.
 
    While no failure to bargain in good faith, as to the Guide, can be
 found, the Dallas Regional Office did, in effect, refuse to bargain over
 the impact and implementation of the plans formulated by the district
 offices.  It did so by instructing its district offices not to engage in
 such bargaining.  It did this in the mistaken belief, already discussed,
 that the plans did not constitute changes of substance in working
 conditions, and that regional-level bargaining over the Guide was the
 extent of the bargaining obligation.  The Dallas Region, therefore,
 bears the responsibility for the failure to bargain, at the
 district-office level.
 
    It is appropriate, at this point, to discuss SSA's objection that a
 requuirement to bargain at both the regional and district office level
 is excessive.  See RBr 33-34.  To the contrary, it simply allows
 accommodation for the local problems and circumstances recognized by the
 Dallas Region in allowing district offices to develop their own plans.
 For example, bargaining by the El Paso District Office would have given
 local 2991 the opporftunity to alleviate adverse effects suffered by
 employees who took time to assist the blind employee assigned to that
 office.  This is not to say that the district offices may countermand
 agreements reached at the national level;  but they may refine them to
 accommodate these types of local problems.
 
             At the El Paso and McAllen District Office level
 
    SSA does not contest the allegation that no bargaining took place at
 the McAllen District Office.  Clearly it did not.
 
    At El Paso, SSA does argue that bargaining, in fact, took place.  The
 El Paso District Manager, however, was under orders not to bargain;
 told the President of Local 2991 that she only had to obtain employee
 input;  and expressed doubt that full bargaining took place.  Her
 labor-relations officer conceded that it did not.  There could hardly
 have been "good faith" bargaining, as required by the Statute, under
 those circumstances.  See Section 7103(a)(12) and 7114(b)(1)-(3).
 
    Accordingly, it must be concluded that there was a failure to bargain
 in good faith by the Dallas Region and the El Paso and McAllen District
 Offices, in violation of Sections 7116(a)(1) and (5) of the Statute.
 
    B.  The charge of a bypass of Local 2991 at the El Paso District
 Office.
 
    The General Counsel argues that "by refusing to bargain with Local
 2991 and by directly soliciting from unit employees their opinions and
 suggestiong regarding working conditions, the El Paso District Office
 bypassed the local agent of the exclusive representative" (GCBr 21),
 thereby engaging in an unfair labor practice, in violation of Sections
 7116(a)1) and (5) of the Statute.
 
    It has already been concluded that the El Paso District Office
 refused to bargain with Local 2991;  and such refusal does amount to an
 illegal bypass of the exclusive bargaining representative, under Federal
 labor-relations law.
 
    However, no illegal bypass can be found from the further allegation,
 found in Count 8 of the Complaint, which concerns the meetings called by
 supervisorss to get employee input on the plans.  Management gave Local
 2991 notice of these meetings;  acquiesced in union representatives
 being present, on official time;  gave Local 2991 the dates and places
 of the meetings;  and had reasonable cause to believe that the employees
 designated by the Union to be present were there as representatives.
 Count 8 of the Complaint in Case Nos. 6-CA-1053, 1053-1, 1054, and 1055
 should be dismissed.
 
    C.  The charge of a bypass of Local 3388 and conducting a Section
 7114(a)(2)(A) "formal discussion(s)" without affording Local 3388 an
 opportunity to be present, at the McAllen District Office.
 
    The discussions at issue are those called by management to get
 employee input into the formulation of accountability plans.  With one
 possible exception, they were clearly "formal discussions" within the
 meaning of Section 7114(a)(2)(A), in that they were called by
 management, had a prearranged agenda, concerned a subject within the
 scope of collective bargaining, were called for the purpose of getting
 employees' ideas on the formulation of the plans, and employee
 participated in the discussions.  The possible exception is the second
 meeting which took place with Service Representatives.  The evidence
 shows only that it was a regular weekly meeting to discuss incoming
 material of some unspecified sort, and the supervisor merely alluded to
 the fact that he had no definite reply to questions raised at the first
 meeting, on the accountability plans.
 
    While management extended to Local 3388 a "general invitation" to
 attend the meetings, it did not advise the Local of the actual dates and
 times of the medetings.  Such information came to Local officials only
 incidentally, in their capacity as employees.  This conduct falls short
 of treating a union as a "partner(s) on an equal footing," the standard
 set by this Authority in United States Air Force, Air Force Logistics
 Command, Aerospace Guidance and Metrology Center, Newark, Ohio and Local
 2221, and American Federation of Government Employees, AFL-CIO, 4 FLRA
 No. 70 (1980).  See also Norfolk Naval Shipyard, Portsmouth Virginia and
 Tidewater Virginia Federal Employees Metal Trades Council, 6 FLRA 74,
 No. 22 (1981), finding a violation of Sections 71716(a)(1) and (8) when
 a meeting was held with employees without notice to the union, and union
 officials just happened to be present, in their capacity, as employees,
 not as union representatives.  The Authority stated:
 
          More specifically, section 7114(a)(2)(A) requires that a Union
       "be given the opportunity to be represented during formal
       discussions involving conditions of employment." This clearly
       contemplates prior notice to the Union so that, inter alia, the
       Union will have an opportunity to select representatives of its
       own choosing to be present.
 
    See 6 FLRA at 76, emphasis by the Authority.
 
    Thus, the series of meetings held with employees on the
 accountability plans, without providing Local 3388 specific notice of
 each one and an opportunity to be present, constituted illegal bypasses
 of the Union and also a violation of Section 7114(a)(2)(A).  These are
 unfair labor practices, under Sections 7116(a)(1), (5), and (8) of the
 Statute.
 
    In addition, management at the McAllen District Office illegally
 bypassed Local 3388 when it sent bargaining-unit employees memoranda
 exhorting them to give comments on the accountability plans.  This
 constitutes a failure to bargain through representatives chosen by
 employees and is an unfair labor practice under Sections 7116(a)(1) and
 (5).  As this Authority held in its Bureau of Public Debt decision, an
 agency's right to establish performance standards "is subject to certain
 rights of a labor organization under the Statute," including "(t)he duty
 to bargain . . . (on) the form of employee participation in the
 establishment of performance standards . . . . " 6 FLRA at 770.
 
    D.  The charge of management's refusal to furnish allegedly necessary
 information at the El Paso District Office.
 
    Section 7114(b)(4) of the Statute imposes a duty upon an agency to
 furnish "data" which is "normally maintained by the agency in the
 regular course of business," and which is "reasonably available and
 necessary for full and proper discussion, understanding, and negotiation
 of subjects within the scope of collective bargaining."
 
    The data sought by Local 2991 consists of drafts of plans formulated
 by the El Paso District Office and sent to the Area Director for review.
  The drafts were not final until after the review.  The President of
 Local 2991 advised the District Manager that the Local would not take a
 position as to the acceptability of any plan, until the Area Director
 had acted on the drafts sent to him.  He said he wanted to see the
 drafts so that he could determine what their "impact" was going to be,
 and what management "felt" about them before the plans went to the Area
 Director.  See finding 24(g) above.  Local 2991 received copies of the
 plans after they were reviewed by the Area Director, and seven days
 before they became effective.  See finding 24k, above.
 
    On these facts, it cannot be concluded that the drafts were
 "necessary," within the meaning of the Statute.  Local 2991 could learn
 nothing significant about "impact" from a draft that was subject to
 change.  In recognition of this the President of Local declined to take
 any position until he saw the final plans.  What management "felt" about
 the plans before they were reviewed by the Area Director would seem to
 have little practicable value to Local 2991, and might lead to
 diversionary discussions over the content of them, which is not within
 the scope of the bargaining obligation, under this Authority's Bureau of
 Public Debt and OPM decisions.  In any event, it cannot be concluded
 that what management "felt" about the plans before they became final was
 "necessary" to collective bargaining over their impact and
 implementation.
 
    Nor can it be concluded that drafts of final papers are the type of
 data "normally maintained in the regular course of business." Normally,
 drafts such as these requested would not be kept, for they serve no
 purpose.
 
    Accordingly, Count 10 of the Complaint in Case No. 6-CA-1953, 1053-1,
 1054, and 1055 should be dismissed.
 
    Other issues are raised by the parties.  However, resolution of them
 would only serve to extend, without altering this decision and the
 remedy to be recommended.
 
                       Ultimate Findings and Orders
 
    A.  In Case No. 6-CA-785, the General Counsel has established, by a
 preponderance of the evidence, that violations of Sections 7116(a)(1)
 and (5) have occurred in the Dallas Region of the Social Security
 Administration.
 
    Accordingly, it is ORDERED, in Case No. 6-CA-785, pursuant to Section
 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute,
 5 U.S.C. Section 7118(a)(7)(A) (Supp. III, 1979), and Section
 2423.29(b)(1) of the Rules and Regulations of the Federal Labor
 Relations Authority, 45 Fed. Reg. 3511 Section 2423.29(b)(1), that the
 Dallas Region of the Social Security Administration, Dallas, Texas:
 
    1. Cease and desist from:
 
          (a) Advising offices organized by the American Federation of
       Government Employees (AFGE) prior to August 30, 1979, that the
       obligation to bargain with AFGE over the employee accountability
       plans formulated by these offices, pursuant to the Personnel Guide
       for Supervisors distributed regionally in September 1980, is only
       at the regional level.
 
          (b) In any like or related manner, violating Sections
       7116(a)(1) and (5) of the Federal Service Labor-Management
       Relations Statute.
 
    2.  Take the following affirmative action:
 
          (a) Instruct the El Paso and McAllen District Offices to
       withdraw all employee accountability plans formulated pursuant to
       the Personnel Guide for Supervisors distributed by the Dallas
       Region in September 1980, destroy all documentation prepared
       pursuant to those plans, and make whole any employee adversely
       affected by the plans consistent with applicable laws and
       regulations.
 
          (b) Instruct the El Paso and McAllen District Offices to give
       notice to Local 3388 or 2991 of the American Federation of
       Government Employees, as appropriate, of any employee
       accountability plans proposed for implementation, and extend to
       the appropriate Local an opportunity to engage in appropriate
       bargaining prior to implementing such plans.
 
          (c) Notify all the recipients of General Counsel's Exhibit 3
       that the third paragraph is to be deleted, and that the first
       sentence of the fourth paragraph is to be modified to read as
       follows:  "Managers of AFGE and NFFE offices have an obligation to
       negotiate, if requested, on the manner in which the local
       accountability plan will be developed and implemented."
 
          (d) Post at the Dallas, Texas, Regional Office copies of the
       attached notice marked "Appendix A," on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such
       forms, they shall be signed by the Regional Commissioner and
       posted and maintained for 60 consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       where notices are customarily posted.  Reasonable steps shall be
       taken to ensure that said notices are not altered, defaced, or
       covered by any other material;  and
 
          (e) Notify the 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.
 
    B.  In Case No. 6-CA-1034, the General Counsel has established, by a
 preponderance of the evidence, that violations of Section 7116(a)(1),
 (5) and (8) occurred at the McAllen District Office.
 
    Accordingly, it is ORDERED, in Case No. 6-CA-1034, pursuant to the
 authority cited in part A, above, that the McAllen District Office of
 the Social Security Administration, McAllen, Texas:
 
    1.  Cease and desist from:
 
          (a) Bypassing Local 3388 and dealing directly with employees
       concerning accountability plans.
 
          (b) Conducting formal discussions, as defined in 5 U.S.C.
       7114(a)(2)(A), without timely and full notice to Local 3388 and an
       opportunity to be present.
 
          (c) Establishing accountability plans without affording the
       Union a prior opportunity to negotiate over bargainable aspects of
       the plans.
 
          (d) In any like or related manner, violating Sections
       7116(a)(1), (5), and (8) of the Federal Service Labor-Management
       Relations Statute.
 
    2.  Take the following affirmative action:
 
          (a) Withdraw all accountability plans formulated pursuant to
       the Personnel Guide for Supervisors distributed by the Dallas
       Regional Office in September 1980.
 
          (b) Destroy all documentation prepared pursuant to such
       accountability plans.
 
          (c) Make whole any employee adversely affected by such
       accountability plans consistent with applicable law and
       regulations.
 
          (d) Upon request, negotiate with Local 3388 over bargainable
       aspects of employee accountability plans, prior to implementation.
 
          (e) Provide Local 3388 with full and timely information,
       including dates and times, of any formal discussions to be
       conducted with employees and invite it to send a representative to
       such discussions.
 
          (f) Post, at the McAllen, Texas, District Office, copies of the
       attached notice marked "Appendix B," on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such
       forms, they shall be signed by the District Manager and posted and
       maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices are customarily posted.  Reasonable steps shall be taken
       to ensure that said notices are not altered, defaced, or covered
       by any other material;  and
 
          (g) Notify the 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.
 
    C.  In Case Nos. 6-CA-1053, 1053-1, 1054, and 1055, the General
 Counsel has established, by a preponderance of the evidence, that
 violations of Sections 7116(a)(1) and (5) have occurred at the El Paso
 District Office, as alleged in Counts 9(a) and 11 of the Complaint.  The
 violations alleged in Counts 8 and 10 were not sustained.
 
    Accordingly, it is ORDERED, in Case Nos. 6-CA-1053, 1053-1, 1054, and
 1055, pursuant to the authority cited in part A, above, that Counts 8
 and 10 of the Complaint be dismissed and that the El Paso District
 office of the Social Security Administration, El Paso, Texas:
 
    1.  Cease and desist from:
 
          (a) Bypassing Local 2991 by refusing to negotiate with it, in
       good faith, over the bargainable aspects of employer
       accountability plans, prior to their implementation.
 
          (b) In any like or related manner, violating Section 7116(a)(1)
       and (5) of the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
          (a) Withdraw all accountability plans formulated pursuant to
       the Personnel Guide for Supervisors distributed by the Dallas
       Regional Office in September 1980.
 
          (b) Destroy all documentation prepared pursuant to such
       accountability plans.
 
          (c) Make whole any employee adversely affected by such
       accountability plans consistent with applicable law and
       regulations.
 
          (d) Upon request, negotiate with Local 2991 over bargainable
       aspects of employee accountability plans, prior to implementation.
 
          (e) Post, at the El Paso District Office, copies of the
       attached notice marked "Appendix C," on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such
       forms, they shall be signed by the District Manager and posted and
       maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices are customarily posted.  Reasonable steps shall be taken
       to ensure that said notices are not altered, defaced, or covered
       by any other material;  and
 
          (f) Notify the 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/ ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  February 11, 1982
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) "JtEx" refers to the Joint Exhibits of the parties.  Other
 abbreviations used in this Decision are as follows.  "GCEx" refers to
 the exhibits of the General Counsel, and "REx" refers to those of
 Respondents.  Multipage exhibits will be referenced first by the exhibit
 number, and then by the page number.  "TR" refers to the transcript.
 "GCBr" refers to the brief of the General Counsel, and "RBr" to that of
 Respondents.
 
    (2) See TR 50, 156, 179, and 235 where witnesses gave varying
 statements as to the number of district offices in the Dallas Region,
 ranging from 33 to 80.
 
    (3) All dates hereinafter mentioned will refer to 1980, unless
 otherwise specified.
 
 
 
 
 
 
                                APPENDIX A
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 We Hereby Notify Our Employ