48:0383(33)CA - - SSA, Douglas Branch Office, Douglas, AZ and AFGE, Council 147 - - 1993 FLRAdec CA - - v48 p383
[ v48 p383 ]
The decision of the Authority follows:
48 FLRA No. 33
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
DOUGLAS BRANCH OFFICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
August 27, 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(a) of the Authority 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.
The complaint alleges that the Respondent refused to negotiate with the Union regarding a Union-initiated proposal concerning the installation of an anti-fatigue mat at the interview counter of the Respondent's facility, in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute).
For the reasons stated below, we find that the Respondent did not commit the unfair labor practice as alleged.
The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of a consolidated nationwide bargaining unit of certain employees of the Social Security Administration (Agency), including those at the Respondent's facility. The Union is an agent of AFGE for purposes of representing unit employees of the Respondent. By letter dated April 11, 1988, AFGE informed the Commissioner of the Agency that it had delegated to its locals the right to initiate mid-term bargaining.
At all times relevant here, AFGE and the Agency have been parties to a national collective bargaining agreement, dated January 25, 1990 (MLA). Article 9 of the MLA is entitled Health and Safety.(1)
On March 10, 1992, the Union's president submitted to the Respondent's branch manager a proposal to negotiate concerning the installation of an anti-fatigue mat at the office's reception counter. The proposed installation of the anti-fatigue mat was to alleviate the stress on employees while standing on a thinly carpeted floor conducting business. On March 23, 1992, the branch manager responded to the Union's bargaining demand, refusing to bargain because there had not been a change in conditions of employment and because the Respondent had no information "that indicate[d] that an unsafe or unhealthy working condition exist[ed] at the work-station, as covered by Article 9 - Health & Safety, of the [MLA]." Stipulation Exhibit 5.
The parties stipulated that "[t]he issue concerning anti-fatigue mats was not discussed by the parties during term negotiations." Stipulation, paragraph 11.
III. Positions of the Parties
A. The General Counsel
The General Counsel asserts that the Authority should continue to adhere to its holding in Internal Revenue Service, 29 FLRA 162 (1987) (IRS).(2) The General Counsel contends that, under the legal analysis set forth in IRS, the Respondent violated the Statute when it refused to bargain with the Union. The General Counsel further contends that matters involving health and safety are negotiable and that the Union did not waive its right to initiate mid-term bargaining concerning the installation of an anti-fatigue mat at the reception counter because that issue was never discussed by the parties during MLA negotiations. The General Counsel also argues that nothing in Article 9, sections 3.A.4 and 16 of the parties' MLA establishes that the Union must receive complaints from employees before submitting mid-term bargaining proposals. Accordingly, the General Counsel contends that the Respondent's arguments that Article 9 covers the matter at issue are "unpersuasive." General Counsel brief at 7.
Finally, the General Counsel maintains that AFGE's April 11, 1988, letter to the Agency's Commissioner properly delegated the right to initiate mid-term bargaining to the AFGE locals. The General Counsel contends that the Respondent, by its silence, acquiesced to AFGE's delegation of mid-term bargaining authority to the Union and to mid-term bargaining below the level of exclusive recognition. The General Counsel further argues that the Respondent never advised the Union that it lacked authority to enter into mid-term negotiations and that the Respondent never suggested that the Union's request should be submitted to another level.
B. The Respondent
The Respondent contends that the Statute does not require that an agency bargain on union-initiated mid-term proposals during the term of a collective bargaining agreement and that such bargaining would undermine the Statute's underlying Congressional intent. In support of its contention, the Respondent relies on the Fourth Circuit's decision in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA).(3) The Respondent also contends that issues involving health and safety are more appropriately addressed under the provisions of the MLA. The Respondent maintains that section 3 of Article 9 provides a procedure for reviewing health and safety concerns, including joint inspection of the Agency's field office facilities by management and union-designated health and safety officials and review on appeal to an appropriate management level if a local union representative is dissatisfied with local management's disposition of the matter.
Finally, the Respondent argues that the Union's request to initiate mid-term bargaining was not made at the proper level of recognition. The Respondent asserts that because the level of exclusive recognition is at the national level, it is under no obligation to bargain below the national level absent mutual agreement. In this regard, the Respondent contends that there is no evidence that any mutual agreement to bargain at the local level exists.
IV. Analysis and Conclusions
First, we reject the Respondent's reliance on SSA v. FLRA. The Authority has not adopted that decision and, instead, adheres to the holding in IRS. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1013 (1993) (SSA).
Nevertheless, we conclude that the Respondent was not obligated to bargain because, as discussed below, the bargaining demand concerned matters that were contained in or covered by the parties' MLA. In 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 such a 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 [the] language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute." Id. at 1018 (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 subject of the Union's mid-term bargaining demand is clearly covered by the parties' MLA. The parties have negotiated an extensive health and safety article, Article 9, in their MLA. Although that article does not specifically address the particular health and safety concern and its proposed resolution through the use of an anti-fatigue mat, as was raised by the Union in its bargaining demand, it does set forth an agreed-upon procedure for identifying, investigating and resolving all health and safety concerns at the Agency's installations. Thus, Article 9, section 3, entitled "Field Office Structure," provides, at the installation level, a procedure of joint inspection and investigation by union and management representatives of reports of unsafe or unhealthy conditions. That provision provides that, following such investigation, a joint report, or separate reports, should be submitted to the management official in charge of the installation who will decide what, if any, action to take. Section 3 further provides that if the Union representative is dissatisfied with the installation manager's disposition of the matter, the representative may raise the matter at the applicable Union council level for further review, and that the council designee may further review the matter at appropriate management levels.
Thus, the parties have bargained over a procedure for the resolution of local concerns regarding possible unsafe or unhealthy working conditions. We conclude that concerns regarding the stress and fatigue suffered by employees who are required to stand for long periods of time are issues that would be dealt with under this procedure. Accordingly, we further conclude that the matter of installing an anti-fatigue mat to combat such stress and fatigue is an aspect of subjects expressly covered by the parties' MLA.
As the subject of the Union's bargaining demand is covered by procedures contained in the parties' MLA, the Respondent's failure and refusal to bargain did not violate the Statute, and we will dismiss the complaint.(4)
The complaint is dismissed.
The relevant portions of Article 9 of the parties' MLA provide that:
Health and Safety
Section 3--Field Office Structure
A. In each installation other than those identified in Section 2, the [Agency] shall designate a health and safety official and the Union shall designate an onsite health and safety representative to carry out the following functions:
1. Conduct joint inspections.
2. Joint reports regarding inspection findings to the appropriate management official.
. . . .
4. Receiving and investigating employee reports of unsafe or unhealthy conditions. Employees may submit such reports to either the union or management representative. When such a report is received, the union and management representatives will attempt to jointly verify the facts and submit a report or, if not in agreement, separate reports to the official in charge of the installation, who will decide what, if any, action to take. In conducting the joint investigation, the parties may seek assistance from outside parties with special expertise. Should the union representative be dissatisfied with either the lack of expertise to conduct the investigation or with the installation manager's disposition of the matter, he/she may raise the matter with a union designee of the applicable council for further review. Such council designee may further review the matter at appropriate management levels.
5. Development and monitoring of abatement plans needed to correct local conditions as appropriate.
(If blank, the decision does not have footnotes.)
1. The relevant portions of Article 9 of the parties' MLA are set forth in the Appendix to this decision.
2. In IRS, the Authority held 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 concerning matters that are not covered by or contained in the