47:1067(99)CA - - SSA, Tucson District Office, Tucson, AZ and AFGE Council 147 - - 1993 FLRAdec CA - - v47 p1067

[ v47 p1067 ]
The decision of the Authority follows:

47 FLRA No. 99











(Charging Party/Union)




June 30, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1 of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

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 negotiate with the Charging Party over work breaks for certain unit employees. We conclude for the reasons discussed below that the Respondent did not violate the Statute as alleged in the complaint. Accordingly, we will dismiss the complaint.

II. Facts

The American Federation of Government Employees, AFL-CIO (AFGE) is the certified exclusive representative of a nationwide consolidated unit of certain employees of the Social Security Administration (SSA), including employees of the Respondent's Tucson District Office. The Union is an agent of AFGE for purposes of representing employees in the Tucson Office. By letter dated April 11, 1988, AFGE informed the Commissioner of SSA that "[t]he right to initiate mid-term bargaining has been, and still is, delegated to [AFGE's] councils and locals . . . ." Stipulation, Exh. 3.

On January 16, 1992, the Union requested the Respondent "to negotiate on work breaks away from the counter for service representatives and the rotation of additional employees to the counter."(1) Stipulation at 3, para. 11. "[T]he issue of work breaks away from a stand-up counter for service representatives was not discussed by the parties during term negotiations for the National Agreement." Id. at para. 12. By letter of January 24, 1992, and at all times subsequent to that date, the Respondent refused to bargain over the proposals.

III. Positions of the Parties

A. Respondent

The Respondent contends, based on Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA), that it has no obligation under the Statute to bargain over Union-initiated mid-term proposals. The Respondent also contends that because the certified unit is a consolidated nationwide unit, it has no obligation to bargain, absent mutual agreement, with the Union below the national level of recognition. Citing Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992), the Respondent further asserts that it has no duty to bargain over the disputed proposals because the issue of rest and work breaks is covered by Articles 10 and 38 of the parties' master collective bargaining agreement.(2)

B. General Counsel

The General Counsel contends that the Respondent's reliance on SSA v. FLRA is misplaced because the Authority has not adopted that decision. The General Counsel also contends that AFGE properly delegated bargaining authority to the Union and that the Respondent "acquiesced to bargaining below the level of exclusive recognition by its silence." G.C.'s Brief at 13. Finally, the General Counsel argues that the Union did not waive its right to bargain over the work breaks it proposed and that such breaks are not contained in or covered by the parties' agreement. The General Counsel emphasizes the parties' stipulation that the issue of work breaks away from a stand-up counter for service representatives was not discussed by the parties during negotiations for the agreement.

IV. Analysis and Conclusions

The Respondent's reliance on SSA v. FLRA is misplaced. As noted by the General Counsel, the Authority has not adopted that decision and, instead, adheres to the holding in Internal Revenue Service, 29 FLRA 162 (1987) (IRS), that, absent waiver, the duty to bargain in good faith under the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals(3) concerning matters that are not covered by or contained in the agreement. See, for example, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and Ogden Air Logistics Center, Hill Air Force Base, Utah, 46 FLRA 1184, 1186 (1993); Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 45 FLRA 1290 (1992).

In addition, we reject the Respondent's argument that it was not obligated to bargain over the disputed proposals because they were not initiated at the national level of recognition. In this regard, the record clearly establishes that AFGE notified the Respondent that it had delegated the right to initiate mid-term bargaining to the Union.

Nevertheless, we conclude that the Respondent was not obligated to bargain over the disputed proposals because, as discussed below, the proposals concerned matters that were contained in or covered by the parties' agreement. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA No. 96 (1993) (SSA), we set forth a framework for determining whether proposals are covered by a provision in an existing agreement. We stated, as relevant here, that in making this determination we will first look to whether the express language of the agreement provision reasonably encompasses the subject matter of the proposals. In this examination, we will not require "an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute." Id., slip op. at 15 (citation omitted). Second, if the agreement provision does not expressly encompass the matter, we will determine whether the subject matter proposed for negotiations is so commonly considered an aspect of the matter set forth in the agreement that the subject is "'inseparably bound up with and . . . plainly an aspect of . . . a subject expressly covered by the contract.'" Id. (citation omitted).

Applying the SSA test here, we find that the Union's mid-term proposals are clearly covered by the parties' master agreement. As previously noted, the proposals establish certain work breaks for service representatives. However, also as previously set forth, Article 10 of the parties' agreement specifically addresses and establishes work breaks for all unit employees, including service representatives. In addition, Article 38 of the agreement demonstrates that, during bargaining for the master agreement, the parties addressed and established additional work breaks for employees in particular work situations. Thus, the parties have bargained over the subject of work breaks for unit employees. There is no contention, in this regard, that the specific work breaks proposed by the Union respond to work situations which arose subsequent to bargaining over the master agreement or otherwise could not reasonably have been contemplated during such bargaining. Therefore, we conclude that the proposals are covered by the parties' agreement.

As the disputed proposals are covered by the parties' agreement, the Respondent was not obligated to bargain over them. Accordingly, the Respondent's failure and refusal to do so did not violate the Statute, and we will dismiss the complaint.

V. Order

The complaint is dismissed.

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

1. The Charging Party submitted the following proposals:

1. Unit employees working at the interview counter will be allowed to take an additional 15 minute morning break and an additional 30 minute afternoon break away from the counter. These breaks will be in addition to the employee's regular rest breaks. The employer may assign work to be done during the additional breaks so long as the work is done at a desk high work station. Normally, these breaks away from the counter will be taken immediately preceding or following the employee's regular break.

2. The employer will rotate additional employees up to the interviewing counter so as to reduce the overall stress experienced by a single employee. Normally, unit employees will not be required or permitted to work at the counter more than four hours per day.

Stipulation, Exh. 4.

2. Article 10, section 1(B), provides, in pertinent part:

B. A rest period of fifteen (15) minutes duration will be allowed each employee twice during each 8-hour day. A rest period of ten (10) minutes duration will be allowed each employee during each period of extended shift overtime of at least 2 hours duration. On days when all work is overtime, a rest period of fifteen (15) minutes will be allowed for each period of 4 hours worked. . . .

Article 38, section 3 provides, in pertinent part:

1. Breaks--Intensive Users-- Intensive VDT users are employees whose primary job functions consists of c