39:0633(52)CA - - SSA and AFGE - - 1991 FLRAdec CA - - v39 p633

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[ v39 p633 ]
39:0633(52)CA
The decision of the Authority follows:


39 FLRA No. 52

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party/Union)

3-CA-80245

DECISION AND ORDER

February 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the Union over the payment of relocation expenses for employees selected under merit promotion procedures and/or other recruitment actions. The Respondent admitted all the factual allegations, but asserted that the parties' collective bargaining agreement contained a waiver of the Union's asserted right to initiate mid-term bargaining. In addition, the Respondent took issue with Authority precedent, asserting that there is no union right to initiate mid-term bargaining proposals, and therefore that it had no duty to bargain over such proposals.

Relying on Authority precedent, the Judge found that a union has the right to initiate mid-term bargaining unless the subject matter is contained in the agreement or the right has been waived. The Judge found that the parties' collective bargaining agreement in this case does not contain a clear and unmistakable waiver of the Union's right to initiate mid-term bargaining over subjects not included in the agreement, and that, therefore, the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Union over the payment of relocation expenses, a matter not specifically covered by the agreement.

In its exceptions, among other things, the Respondent contends that Article 5 Section 3.B of the agreement operates as a waiver because it states that other than as to certain enumerated matters, not including relocation expenses, "there will be no other supplemental agreements." Respondent's brief at 20. It is clear, however, from the full text of Article 5 Section 3 that the quoted language applies only to supplemental agreements negotiated by components of the organization, not agreements at the Agency level, as sought here.

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. We affirm those rulings. We adopt the Judge's findings, conclusions and recommended Order.

II. 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) Refusing to negotiate with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, on negotiable proposals submitted by the Union during the term of an existing collective bargaining agreement, where the proposals do not concern matters covered by the agreement and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during negotiation of the agreement.

(b) In any like or related manner interfering with, restraining of coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request, negotiate with the American Federation of Government Employees, AFL-CIO, on negotiable proposals submitted by the Union during the term of an existing collective bargaining agreement, where the proposals do not concern matters covered by the agreement and the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals during the negotiation of the agreement.

(b) Post at its offices where unit employees are employed 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, Social Security Administration, and they 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 2429.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to negotiate with the American Federation of