Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO

[ v55 p374 ]

55 FLRA No. 62

SOCIAL SECURITY ADMINISTRATION
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO
(Charging Party)

WA-CA-80113

_____

DECISION AND ORDER

April 28, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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 Respondent's exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it relocated bargaining unit employees without providing the Charging Party (the Union) with an opportunity to negotiate to the extent required by the Statute. The Judge determined that the Respondent violated the Statute, as alleged.

      On consideration of the Judge's decision, we find that the Respondent violated section 7116(a)(1) and (5) and adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision. [n1] 

II.     Background and Judge's Decision

A.      Background

      In 1992 and 1993, while bargaining for a new national term agreement, the Union proposed to alter Article 13, entitled "Parking and Transportation," of the then current agreement. The Union first proposed that the Respondent provide the maximum subsidy to those employees who use public transportation. After the Respondent rejected that proposal, the Union revised its proposal to provide that the Respondent would issue each employee up to $60 each month in transit checks. The subsidy proposals were not incorporated into the 1993 national agreement. Article 13 of the 1993 national agreement was incorporated into the 1996 national agreement without change. Article 13 contains four sections. Sections 1 and 2 deal with parking arrangements. Section 3 deals with administrative leave for employees who contest citations for traffic violations. Section 4 deals with shuttle service.

      A letter of understanding (LOU) that accompanied Article 13 of the 1993 national agreement provided that the Union would have 120 days to identify any problems with parking spaces at local installations. The 1993 LOU on parking spaces was included as part of the 1996 national agreement.

      As a result of the decision in Department of the Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (the Barstow decision), pertaining to the obligation to bargain on matters covered by a collective bargaining agreement, the parties negotiated a memorandum of understanding (the Barstow MOU) with respect to the application of Article 4 of the 1996 national agreement pertaining to mid-term bargaining. The MOU provided:

The Parties agree that in the administration of Article 4 of the National Agreement, SSA will continue its current practice of giving notice to AFGE concerning changes in conditions of employment without regard to the Barstow decision.
Unless it is clear that a matter at issue is set forth explicitly and comprehensively in the National Agreement or existing MOU, the subject is appropriate for mid-term bargaining.

Judge's decision at 5 (quoting MOU).

      In 1996, after the effective date of the 1996 national agreement, the Respondent announced that it would move its Office of Research, Evaluation and Statistics (ORES). In connection with the move, the Union requested that the Respondent bargain over transportation subsidies for ORES employees, and the Respondent refused. The Respondent implemented the move in September 1997. The Union filed an unfair labor practice charge, and the General Counsel issued a complaint alleging that the Respondent's refusal to bargain violated section 7116(a)(1) and (5). The parties stipulated that the move changed conditions of employment of, [ v55 p375 ] and had a more than de minimis effect on, ORES employees.

B.      Judge's Decision

      The Administrative Law Judge concluded that the Respondent had violated the Statute, as alleged. He determined that the Respondent had refused to bargain over a negotiable proposal pertaining to the impact and implementation of a management change that had a more than de minimis effect on conditions of employment of unit employees. In concluding that the Respondent had violated section 7116(a)(1) and (5) of the Statute, the Judge rejected the Respondent's claims that the matter of transit subsidies was covered by the 1996 national agreement and that the Union had waived its right to bargain over transit subsidies.

      In finding that the matter of transit subsidies was not covered by the 1996 national agreement, the Judge applied the framework established in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA, Baltimore). Under the first prong of SSA, Baltimore, the Judge determined that there was no contract provision that expressly encompassed the matter. Under the second prong of SSA, Baltimore, the Judge determined that the matter of transit subsidies was not otherwise covered by any of the agreements.

      As to the third prong of the SSA, Baltimore framework, the Judge ruled that this prong is reached only when it is "difficult to determine whether the subject matter sought to be bargained is an aspect of matters already negotiated." Judge's decision at 8 n.3 (quoting Department of Veterans Affairs Medical Center, Denver, Colorado, 52 FLRA 16, 23 (1996) (VAMC, Denver)). As the Judge found that the prong II determination was not difficult, he did not consider the Respondent's bargaining history evidence in concluding that the matter of subsidies was not covered by the 1996 national agreement.

      However, the Judge examined the Respondent's bargaining history evidence in terms of whether the Union had waived its right to bargain and concluded that the Union had not waived its bargaining rights over transit subsidies. He found that the Respondent had failed to show that subsidies were fully discussed and consciously explored during negotiations for the 1993 national agreement and that the Union consciously yielded or otherwise clearly and unmistakably waived its interest in the matter. Furthermore, the Judge explained that even if he assumed that the Union had waived its bargaining rights over transit subsidies during the term of the 1993 agreement, there was no evidence that the Union abandoned or yielded on subsidies during negotiations for the 1996 national agreement.

      In addition, the Judge concluded that in any event, the matter of transit subsidies was subject to bargaining under the Barstow MOU. The Judge ruled that the Respondent was precluded by the MOU from relying on the second or third prongs of the SSA, Baltimore framework. He found on the basis of the clear language and bargaining history of the Barstow MOU that a subject was appropriate for mid-term bargaining unless the subject was set forth explicitly and comprehensively in a prior agreement. Reiterating his finding that there was nothing in any of the agreements that refers to transit subsidies, he determined that transit subsidies were appropriate for bargaining under the MOU and that the Respondent's refusal to bargain violated the Statute.

      As a remedy, the Judge recommended a cease-and-desist order, a posting, and an order to bargain over transit subsidies.

III.      Positions of the Parties

A.      Respondent's Exceptions

      The Respondent contends that the Judge made three errors.

      First, the Respondent contends that the Judge misapplied the three-prong framework of SSA, Baltimore in ruling that consideration of bargaining history evidence was not required in determining whether the subject of transit subsidies was covered by the 1996 national agreement. Moreover, the Respondent asserts that the bargaining history establishes that the subject of transit subsidies was covered by the 1996 national agreement. The Respondent maintains that the bargaining history clearly indicates that it was the intent of the parties that Article 13 covered the matter of transit subsidies. The Respondent argues that the Union's proposals in 1992 and 1993 to alter Article 13, particularly its revised proposal, demonstrate that the parties reasonably should have contemplated that the national agreement foreclosed further bargaining on transit proposals.

      Second, the Respondent contends that the Judge erred in ruling that under the Barstow MOU, the Respondent gave up its right to assert a defense pursuant to prongs II and III of the SSA, Baltimore framework. The Respondent maintains that it is significant that the MOU refers to Barstow rather than SSA, Baltimore. The Respondent argues that if it had intended to waive its right to assert the entire framework of SSA, Baltimore, it would have so stated in the MOU. The Respondent fur- [ v55 p376 ] ther argues that its invocation of a "covered-by" defense on two occasions since the execution of the MOU indicates that it did not intend to waive its right to assert a "covered-by" defense.

      Alternatively, the Respondent contends that it has demonstrated that the subject of transit subsidies is set forth explicitly and comprehensively in the national agreement. The Respondent maintains that the bargaining history clearly demonstrates that the issue of transit subsidies was addressed and bargained by the parties.

      Third, the Respondent contends that the Judge erred in failing to find that the Union waived its right to bargain over the issue of transit subsidies. The Respondent maintains that the Union knowingly and consciously waived its right to bargain further on transit subsidies on the basis of the 1992 and 1993 proposals that were compromised during the course of bargaining on Article 13. The Respondent claims that by rolling Article 13 over into the 1996 national agreement, the Union continues to be foreclosed from bargaining on issues that were waived in the previous agreement.

B.      General Counsel's Opposition

      The General Counsel contends that the Judge did not err in refusing to consider the Respondent's bargaining history evidence in determining whether the subject of transit subsidies was covered by the 1996 national agreement. The General Counsel maintains that the Judge correctly applied SSA, Baltimore, when he concluded that consideration of extrinsic evidence was not necessary because it was not difficult to determine that the subject of transit subsidies was not covered by the agreement. In addition, the General Counsel claims that the Judge correctly decided that the subject of transit subsides was not covered by Article 13 of the 1996 national agreement.

      The General Counsel also contends that the Respondent's exception to the Judge's determination that the matter of transit subsidies was subject to bargaining under the Barstow MOU should be denied. The General Counsel maintains that the Authority should apply the same standard to the Judge's interpretation and application of the MOU that the Authority applies to an arbitrator's interpretation and application of a collective bargaining agreement. The General Counsel asserts that under such a standard, the Respondent's exception should be denied because the Judge's interpretation does not disregard the MOU and is not irrational or implausible.

      Finally, the General Counsel contends that the Judge correctly determined that the Union had not waived its right to bargain over transit subsidies.

IV.      Analysis and Conclusions

A.      The Judge properly interpreted and applied the Barstow MOU

      We find that the Barstow MOU is determinative of whether the Respondent's refusal to bargain violated the Statute. The Judge ruled that under the Statute, and consistent with the MOU, the Respondent was required to bargain over the matter of transit subsidies. In its exceptions, the Respondent claims that the Judge misinterpreted the Barstow MOU.

      When an unfair labor practice case is governed by the interpretation and application of specific terms of a collective bargaining agreement, we must ascertain the meaning of the provision. When a judge's interpretation of a collective bargaining agreement is challenged on exceptions, we must decide whether the judge's determination is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts. See, e.g., U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 52 FLRA 256, 261 (1996) (INS); Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1111 (1993) (IRS). Thus, the question is whether the Judge's interpretation of the Barstow MOU is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts. [n2]  See INS, 52 FLRA at 261; IRS, 47 FLRA at 1111. We conclude that it is.

      The plain wording of the Barstow MOU specifically provides that a matter is appropriate for mid-term bargaining unless it is clear that the matter is set forth explicitly and comprehensively in the national agreement. In this case, in response to a management change, the Union requested bargaining on transit subsidies. Transit subsidies are not mentioned in the national agreement. Consequently, on the record presented and consistent with the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts, the Judge correctly determined that under the Statute, and consistent with the MOU, the Respondent was required to bargain over [ v55 p377 ] the matter of transit subsidies. See, e.g., INS, 52 FLRA at 261 (citing O. Fairweather, Practice and Procedure in Labor Arbitration (3d ed. 1991) and Elkouri and Elkouri, How Arbitration Works (4th ed. 1985)).

      We agree with the Judge's determination that under the Barstow MOU, the Respondent waived its right to assert a "covered-by" defense under SSA, Baltimore to a statutory obligation to bargain except to the extent the matter is set forth explicitly and comprehensively in an agreement. In SSA, Baltimore, the Authority advised that the Statute provides stability and repose to matters reduced to writing in a collective bargaining agreement. 47 FLRA at 1017. Accordingly, the Statute frees an agency from a requirement to continue negotiations over terms and conditions of employment already resolved by previous bargaining. Id. at 1018. However, a statutory right, such as the refusal to bargain based on an affirmative "covered-by" defense pertaining to the parties' collective bargaining agreement, is subject to waiver. Cf. U.S. Army Armament Research Development and Engineering Center, Picatinny Arsenal, New Jersey, 52 FLRA 527, 534 (1996) (Authority found that the respondent's affirmative defense under section 7118(a)(4) was subject to waiver). For there to be a waiver of such an affirmative defense, specificity is required. See U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, 55 FLRA No. 37, slip op. at 11 n.10 (1999) (specificity is demanded whenever determining whether a party has waived a statutory right). In this case, we are satisfied with the specificity of the Barstow MOU. The plain language of the MOU specifically provides that a matter is appropriate for mid-term bargaining unless it is clear that the matter is set forth explicitly and comprehensively in the national agreement.

      We find that the Respondent's asserted invocation of a "covered-by" defense in other situations since the execution of the MOU fails to provide a basis for rejecting the plain language of the MOU. In addition, we reject the Respondent's argument that it did not intend to waive its right to assert a full defense under the framework of SSA, Baltimore. The citation to Barstow, rather than SSA, Baltimore, is not inconsistent with the provision that mid-term bargaining is required over a matter unless it is clear that the matter is set forth explicitly and comprehensively in the national agreement. Moreover, basic principles of contract interpretation presume that the parties understood the import of their agreement and that they had the intention which its terms manifest. See Elkouri and Elkouri, How Arbitration Works 480 (5th ed. 1997). Accordingly, we adopt the Judge's determination that under the Statute, and consistent with the Barstow MOU, the Respondent was required to bargain over the matter of transit subsidies.

B.      We adopt the Judge's conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute

      Based on the foregoing, we adopt the Judge's conclusion that under the Statute, and consistent with the terms of the parties' Barstow MOU, the Respondent was required to bargain over a matter except to the extent the matter is set forth explicitly and comprehensively in the national agreement. We also adopt the Judge's conclusion that the matter of transit subsidies is not set forth explicitly and comprehensively in the 1996 national agreement. Accordingly, on this basis, we adopt the Judge's conclusion that the Respondent violated the Statute. In view of this adoption, we need not address, and we express no view on, whether the Judge correctly applied the SSA, Baltimore framework for determining when a matter is covered by a collective bargaining agreement.

      We view the Barstow MOU as also dispositive of the Respondent's argument that the Union waived its right to bargain over transit subsidies. The argument rests on the matter of transit subsidies allegedly being abandoned in the bargaining process that led to the 1993 national agreement. As the subsequent 1996 Barstow MOU required mid-term bargaining over any topic that is not set forth explicitly and comprehensively in any agreement, we find that the Respondent's arguments as to why the matter of transit subsidies is not set forth in the 1996 national agreement to be irrelevant. But even if we did not view the MOU as dispositive, we would still reject the exception because the Respondent provides no support for its assertion that bargaining history to a predecessor agreement can support a claim of waiver as to a subsequent agreement when the relevant provision was merely rolled over into that subsequent agreement. [ v55 p378 ]

V.      Order

      Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Statute, the Social Security Administration shall:

      1.      Cease and desist from:

           (a)      Unilaterally changing conditions of employment by relocating its Office of Research, Evaluation and Statistics, Washington, D.C. (ORES), without first bargaining with the Union over transit subsidies for bargaining unit employees affected by the relocation.

           (b)      In any like or related manner, interfering with, restraining, or coercing 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)      On request, bargain with the Union over transit subsidies for bargaining unit employees affected by the relocation of ORES.

           (b)      Post at ORES, where bargaining unit employees represented by the Union are located, copies of the attached notice on forms to be furnished by the Authority. On 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 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 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We notify our employees that:

WE WILL NOT unilaterally change