35:0296(34)CA - - SSA and AFGE - - 1990 FLRAdec CA - - v35 p296

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[ v35 p296 ]
35:0296(34)CA
The decision of the Authority follows:


35 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party/Union)

3-CA-80378

DECISION AND ORDER

March 29, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by proceeding with the installation of personal computers under the National End User Computer Project at a time when impact and implementation negotiations with the Union had not been completed.

The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute when it implemented the computer project. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. After consideration of the Judge's Decision, the exceptions, the opposition, and the entire record, we agree with the Judge, for the following reasons, that the Respondent's actions violated section 7116(a)(1) and (5) of the Statute. We adopt the Judge's findings, conclusions and recommended Order, as modified to require the Respondent to cease and desist from further unilateral implementation of the project until bargaining, if requested by the Union, is completed.

II. Background

By letter of May 20, 1986, the Respondent informed the Union of Respondent's decision to implement the National End User Computer Project, involving the installation of personal computers in its field offices and field assessment offices nationwide. The parties bargained over the initiative and reached an impasse.(*) On November 13, 1986, the Union requested the assistance of the Federal Service Impasses Panel (Panel) in resolving the impasse. In January 1987, the Panel directed the parties to resume bargaining with the assistance of a mediator.

In May 1987, the Respondent expanded the project to encompass headquarters and program service centers. By letter dated July 2, 1987, the Panel declined to assert jurisdiction over the impasse because the Respondent was "in the process of revising its proposals," and "voluntary efforts to reach agreement [had] not been exhausted[.]" Joint Exhibit 7. In August 1987, the Respondent again expanded the project, this time to encompass all six components of Respondent's organization. The Union requested bargaining over the revised project and submitted bargaining proposals.

On September 29, 1987, the Respondent awarded the project contract to the Telex Corporation. The contract for the personal computers provided for the delivery of approximately 4000 microcomputers to the Respondent's offices.

Between November 3, 1987, and November 17, 1987, the parties held nine bargaining sessions. The parties again reached impasse and on November 20, 1987, the Union again requested the assistance of the Panel in resolving the impasse. By letter of January 13, 1988, the Panel directed that the parties "deal with the disputed issues again during their pending master contract negotiations and, if no agreement is reached, submit the matter to the Panel, along with any other open issues, at that time." Joint Exhibit 13.

By letter dated January 27, 1988, the Union advised the Respondent of its position that the matter was under the Panel's jurisdiction and that the Respondent could not implement the project unless the parties agreed. The Union stated further that the personal computers should not be put to use, furniture should not be acquired, adaptive devices for the handicapped should not be obtained, trainers should not be selected, and other changes associated with the project should not be made. By letter dated February 12, 1988, the Respondent informed the Union that it had begun implementation of the project on January 15, 1988, consistent with the last offer it submitted to the Union. The Respondent suggested that the Union should forward any problems the Union discerned concerning the installation of personal computers to the Union's negotiation team for consideration during master contract negotiations. The Union again informed the Respondent, by letter dated February 23, 1988, that it was the Union's position that the Respondent could not proceed with implementation because the matter was under the Panel's jurisdiction.

By letter dated February 23, 1988, the Union informed the Panel that the Respondent was implementing the project and requested that the Panel reconsider its January 13 decision. By letter of February 26, 1988, the Respondent opposed the Union's request for reconsideration. On March 31, 1988, the Panel denied the Union's request.

Delivery of the personal computers began in March 1988 and continued throughout 1988. Bargaining unit employees began using the personal computers in March 1988.

During the period May through July 1988, the parties entered into negotiations for a master contract. They discussed the computer project and reached agreement on a number of issues. The Judge noted, however, that according to uncontested testimony, "a number of 'issues . . . became moot because the [Respondent] had already implemented, such as selecting trainers, [and] furniture, [and] setting up the work stations in local offices where they go in a particular office.'" Judge's Decision at 4.

III. Administrative Law Judge's Decision

The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute because it implemented the computer project at a time when negotiations had not been completed. The Judge found that the Panel had not "relinquished and/or declined jurisdiction over the impassed [sic] matters by its letter dated January 13, 1988," as contended by the Respondent. Id. at 6. The Judge found that in its January 13, 1988, letter, the Panel cited section 2471.6(a)(2) of its regulations, which authorizes the Panel to recommend to the parties methods and procedures it considers appropriate for the resolution of an impasse, as authority for its decision. The Judge reasoned that if the Panel had intended to decline or relinquish jurisdiction it would have cited section 2471.6(a)(1) of its regulations, which requires the Panel to advise the parties in writing when it declines to assert jurisdiction.

Citing U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986) (Department of HUD), the Judge found that while the matter was pending before the Panel, the Respondent was obligated to maintain the status quo to the maximum extent possible. The Judge found further that if an agency alters the status quo while a matter is pending before the Panel, the agency is required to establish that the action taken was consistent with the necessary functioning of the agency. Judge's Decision at 7.

The Judge found that the evidence did not support the Respondent's assertion that implementation of the computer project was consistent with the necessary functioning of the Agency. According to the Judge, the Respondent's evidence consisted only of (1) an incomplete contract between Telex Corporation and the Respondent indicating possible interest penalties for failure to allow timely delivery of the computers, and (2) a table showing that there had been a decline in the numbers of employees working in various categories of employment. The Judge concluded "that any conclusions based on such evidence would be purely speculative." Id. To remedy the unfair labor practice, the Judge recommended, among other things, that the Respondent be directed to (1) cease and desist from unilaterally implementing the project while negotiations are pending before the Panel; and (2) bargain with the Union, on request, concerning the impact and implementation of the project.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent excepts to the Judge's conclusion that it failed to bargain on the impact and implementation of the National End User Computer Project. The Respondent contends that it (1) fulfilled its statutory obligation to bargain, and (2) implemented only those aspects of the project which were necessary for the proper functioning of the Agency. Therefore, the Respondent claims that it did not violate section 7116(a)(1) and (5) of the Statute.

First, the Respondent argues that it complied with the Panel's order "when it negotiated remaining issues during its national contract negotiations." Exceptions at 6. The Respondent asserts that because all issues concerning the End User Computer Project have been fully negotiated, it fulfilled its statutory bargaining obligation.

Second, the Respondent maintains that it implemented only the aspects of the computer program that were necessary for the proper functioning of the Agency. The Respondent argues that the question of whether the Panel retained jurisdiction "can only be answered by the Panel." Id. at 7. The Respondent asserts that in the absence of the Panel "issuing a clarification of its order, which it declined to do, the Agency was free to implement those aspects of the program necessary for the proper functioning of the Agency." Id. The Respondent argues that Agency administrators who are responsible for carrying out the Agency's programs must determine what aspects of a program are necessary for proper functioning of the Agency. The Agency argues that "[o]nce these determinations are made they should not be easily overturned by third parties." Id. at 8.

Finally, the Respondent asserts that the Judge's "cease and desist order . . . is void" because the parties have fully negotiated all aspects of the End User Project. Id. at 7. In addition, the Respondent asserts that "a great number of [the Agency's] district offices will not be able to process social security cards, claims and other related benefits," if the Judge's cease and desist order is permitted to stand. Id. at 9.

B. General Counsel's Opposition

The General Counsel argues that the Respondent's unilateral change in working conditions violated section 7116(a)(1) and (5) of the Statute, "irrespective of Respondent's professed 'good faith', unless the Respondent can demonstrate that there were exigent circumstances excusing its unilateral action." Opposition at 2. The General Counsel asserts that the Respondent did not support its contention that its implementation of the project was necessary for the proper functioning of the Agency. The General Counsel further asserts that "any perceived problems" with the Judge's remedial order can be handled as a compliance matter. Id. at 3.

V. Analysis and Conclusions

A. Respondent Violated Section 7116(a)(1) & (5) By Implementing the National End User Computer Project When Impact and Implementation Negotiations With the Union Were Pending

For the following reasons, we agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute by proceeding with the installation of personal computers in its field offices at a time when impact and implementation negotiations with the Union had not been completed.

At the outset, we note that the Respondent argued to the Judge that implementation of the National End User Computer Project did not violate the Statute for two reasons: (1) implementation "occurred at a time when the parties had reached impasse and the Impasses Panel had declined to assert immediate jurisdiction[,]" and (2) implementation "was 'consistent with the necessary functioning of the Agency.'" Judge's Decision at 5. The Judge rejected both of these arguments, finding that the Panel had not "relinquished jurisdiction" at the time of the implementation and further, that the Agency had not demonstrated that the implementation was consistent with the necessary functioning of the Agency. Id. at 6-7.

The Respondent does not argue in its exceptions that implementation of the program did not violate the Statute because it occurred at a time when the Panel had declined to assert jurisdiction. Instead, the Respondent maintains that it "did negotiate and settle issues at the National Negotiations per the decision/direction rendered by the Panel [and] did implement aspects of the project necessary for the proper functioning of the Agency." Exceptions at 6. The Respondent argues that "it fulfilled its statutory bargaining obligation" and that it "fulfilled the order given to it by the Panel when it negotiated remaining issues during its national contract negotiations." Id.

The issue before us is not whether the Respondent violated section 7116(a)(6) of the Statute by failing to cooperate in impasse decisions or procedures. The unfair labor practice complaint in this case alleged a violation of section 7116(a)(1) and (5) of the Statute only and it is the Judge's finding on that allegation that is before us. In addition, we reject the Respondent's implicit argument that it did not violate the Statute because it bargained with the Union after implementation of the project. As stated by the Judge, the issue is whether the Respondent violated the Statute by proceeding with implementation of the computer project "at a time when . . . negotiations . . . had not been completed." Judge's Decision at 2. There is no dispute that negotiations had not been completed in February 1988, when Respondent began implementation of the project. Accordingly, as the Respondent no longer argues that implementation was proper because the Panel had declined to assert jurisdiction, the only issue before us is whether the Agency met its statutory obligation to maintain the status quo, except to the extent consistent with the necessary functioning of the Agency, until it completed bargaining on implementation of the program.

The Judge concluded that the Respondent failed to support its assertion that implementation of the Computer Project was consistent with the necessary functioning of the Agency. According to the Judge, the Respondent's evidence that implementation was necessary consisted only of (1) an incomplete contract indicating "possible" interest penalties for failure to allow timely delivery of the computers, and (2) a table showing that there had been a decline in the numbers of employees working in various categories of employment. Judge's Decision at 7 (emphasis in original). The Judge found that "any conclusions based on such evidence would be purely speculative." Id.

The Respondent disagrees with the Judge's conclusion. The Respondent has not demonstrated, however, that the Judge's conclusion is erroneous on either factual or legal grounds. We note in this regard that "costs are a legitimate factor in deciding what is necessary for the efficient functioning of an agency." Department of HUD at 437. The Respondent did not establish, however, that implementation of the project was necessary for cost-related or other reasons. The cost factors submitted by the Respondent to the Judge related only to the Respondent's obligation to fulfill its contract to purchase computers. There is no showing that the Respondent would have incurred additional costs if it had complied with its bargaining obligation.

The Respondent did not demonstrate to the Judge and has not demonstrated to us that implementation of the National End User Computer Project before completion of negotiations was consistent with the necessary functioning of the Agency. Accordingly, we find that the Respondent violated section 7116(a)(1) and (5), as alleged in the unfair labor practice complaint. See id. See also Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985).

B. The Judge's Recommended Remedy is Appropriate

The Respondent excepts to the Judge's proposed remedy that the Respondent cease and desist from unilaterally implementing the National End User Computer Project and, at the Union's request, bargain on the Union's impact and implementation proposals relating to the project. The Respondent asserts that the recommended remedy is "inappropriate" because the Respondent was required to implement the project "consistent with the requirement of an effective and efficient Government." Exceptions at 9. The Respondent states that if the proposed order "is permitted to stand, a great number of . . . offices will not be able to process social security cards, claims and other related benefits." Id. The Respondent also contends that the Judge's cease and desist order is "void" because there are now no matters pending before the Panel concerning the project. Id. at 7.

As noted above, the Respondent has not demonstrated that its implementation of the computer project before completion of negotiations was consistent with the necessary functioning of the Agency. Further, the Respondent has not presented any evidence to substantiate its assertion that the Judge's proposed remedy will interfere with the Respondent's ability to process social security cards, claims, or other benefits. More importantly, Respondent's latter argument appears to be directed at a status quo ante remedy. The Judge did not recommend a status quo ante remedy, however, and the General Counsel does not now request that remedy. The Judge recommended prospective bargaining, if requested by the Union, concerning "impact and . . . implementation proposals relating to the . . . [p]roject." Judge's Decision at 8.

It appears from the record that the parties reached agreement on certain aspects of the computer project during negotiations for their master agreement. The Judge found, however, that negotiations over other aspects of the project had become "moot" because of the Respondent's previous implementation. In these circumstances, we find that a prospective bargaining order will effectuate the purposes and policies of the Statute.

Finally, the Judge recommended that the Respondent be required to cease and desist from implementing the computer project while negotiations are pending before the Panel. We note that "impasse resolution procedures of the Panel comprise one aspect of the collective bargaining process." Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466, 472 (1985) (footnote omitted). Although the Respondent now claims that no issue regarding the computer project remains before the Panel, it is clear that the Respondent did not maintain the status quo when that issue was pending, as required by the Statute. Id. In the circumstances of this case, therefore, we find that the Respondent should cease further unilateral implementation of the computer project until it has satisfied its bargaining obligation as discussed above. Accordingly, we will modify the Judge's recommended cease and desist order to require the Respondent to cease and desist from further unilateral implementation of aspects of the project until bargaining, if requested by the Union over any remaining unresolved matters, is completed.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration shall:

1. Cease and desist from:

(a) Unilaterally implementing provisions of the National End User Computer Project at a time when impact and implementation negotiations with the American Federation of Government Employees, AFL-CIO, have not been completed.

(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, bargain concerning proposals relating to the impact and implementation of the National End User Computer Project.

(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner of the Social Security Administration, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including 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 III, Federal Labor Relations Authority, 1111-18th Street, N.W., P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.



NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally implement provisions of the National End User Computer Project at a time when negotiations with the American Federation of Government Employees, AFL-CIO, on the impact and implementation of the project have not been completed.

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, upon request of the American Federation of Government Employees, AFL-CIO, bargain concerning proposals relating to the impact and implementation of the National End User Computer Project.

__________________________
(Agency)

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 of the Federal Labor Relations Authority, Region III, whose address is: 1111 - 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The record does not indicate whether the parties bargained over the Respondent's decision to implement the project, the impact and implementation of the project, or both.