Social Security Administration, Office of Hearings and Appeals, Boston Regional Office, Boston, Massachusetts (Respondent/Agency) and Social Security Administration, Boston, Massachusetts (Respondent/Agency) and American Federation of Government Employees, Local 1164, AFL-CIO (Charging Party/Union)

[ v60 p105 ]

60 FLRA No. 23

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
BOSTON REGIONAL OFFICE
BOSTON, MASSACHUSETTS
(Respondent/Agency)

and

SOCIAL SECURITY ADMINISTRATION
BOSTON, MASSACHUSETTS
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1164, AFL-CIO
(Charging Party/Union)

BN-CA-02-0266-REC
BN-CA-02-0434-REC
(59 FLRA 875 (2004))

_____

ORDER GRANTING MOTION
FOR RECONSIDERATION

July 16, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a motion by the General Counsel (GC) for reconsideration of the Authority's remedial order and notice in Social Security Admin., Office of Hearings and Appeals, Boston Regional Office, Boston, Mass., 59 FLRA 875 (2004) (Chairman Cabaniss dissenting). The Respondent filed a response to the GC's motion. The Charging Party also filed a submission in support of the GC's motion for reconsideration.

      For the following reasons, we grant the GC's motion for reconsideration and modify the remedial order and notice in 59 FLRA 875 to the extent consistent with this decision.

II.     The Decision in 59 FLRA 875

      This case consolidated two complaints in Case Nos. BN-CA-02-0266 and BN-CA-02-0434. [ v60 p106 ]

      The complaint in Case No. BN-CA-02-0266 alleged that the "Social Security Administration, Office of Hearings and Appeals, Boston Regional Office" violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding a formal discussion with a bargaining unit employee without affording the Union notice and an opportunity to be represented as required by § 7114(a)(2) of the Statute. A contract investigator conducted a phone conversation with a unit employee in SSA's Office of Hearings and Appeals (OHA) in Manchester, New Hampshire concerning a fellow employee's EEO complaint. Neither the contract investigator nor SSA officials advised the Union of the telephone call before it was made. The Judge concluded that the SSA, OHA Boston Regional Office violated the Statute as alleged. As a remedy, he ordered in relevant part that the SSA, OHA Boston Regional Office post a notice signed by the Director of the Office of Civil Rights and Equal Opportunity, SSA, Baltimore, Maryland (OCREO Director) at "facilities in all offices in the OHA Boston Region and in all offices of SSA, Boston, Massachusetts." Judge's Decision at 10. In 59 FLRA 875, the Authority dismissed the complaint in this case.

      The complaint in Case No. BN-CA-02-0434 alleged that "Social Security Administration, Boston, Massachusetts" violated § 7116(a)(1) and (8) of the Statute by holding formal discussions with bargaining unit employees without affording the Union notice and an opportunity to be represented as required by § 7114(a)(2) of the Statute. In this case, another contract investigator conducted phone conversations with two other unit employees in SSA's Somerville, Massachusetts Office concerning another employee's EEO complaint. Neither the contract investigators nor SSA officials advised the Union of the telephone calls before they were made. The Judge dismissed the complaint in this case.

      In 59 FLRA 875, the Authority found that the "Social Security Administration, Office of Hearings and Appeals, Boston Regional Office" violated the Statute in Case No. BN-CA-02-0434 by failing to provide under § 7114(a)(2)(A) the Union notice of, and an opportunity to participate in, the discussions with the two employees in the Somerville Office. As a remedy, the Authority directed the SSA, OHA Boston Regional Office to post a notice signed by the "Hearing Office Chief Administrative Law Judge for the Somerville office" at facilities in all offices in the OHA Boston Regional Office and in all offices of SSA, Boston, Massachusetts. 59 FLRA at 881.

III.     General Counsel's Motion for Reconsideration

      The GC asserts that there are extraordinary circumstances warranting reconsideration of the Authority's decision and order in 59 FLRA 875 as a result of "inadvertent errors in the Decision and Order which effectively nullify the remedy intended by the Authority." Motion at 1. The GC maintains that "[t]he errors involve the mistaken identification of the [SSA, OHA] Boston Regional Office as the organization responsible for committing and remedying the unfair labor practices" in Case No. BN-CA-02-0434. Id. The GC notes that the Somerville office is not an Office of Hearings and Appeals as described by the Authority in 59 FLRA 875.

      Specifically, the GC claims that since the complaint in Case No. BN-CA-02-0434 alleged that SSA, Boston, Massachusetts -- not the SSA, OHA Boston Regional Office -- had committed the unfair labor practices, the Authority's decision and order should reflect the same result. In this respect, the GC contends that the Authority should require that the modified remedial notice in Case No. BN-CA-02-0434 be signed by the highest official in SSA, Boston, Massachusetts, and similarly, that the notice be posted in all offices of SSA, Boston, Massachusetts. The GC maintains that correction of the Order is necessary to ensure that the remedy intended by the Authority is implemented by the organization responsible for the unfair labor practices. Id. at 2 (citing United States Dep't of Justice, United States Immigration and Naturalization Service, El Paso District Office, 39 FLRA 1431, 1436 (1991)).

IV.     Respondent's Submission

      The Respondent maintains that the GC's motion for reconsideration should be denied. The Respondent contends that consistent with Authority precedent, and absent a finding of a nationwide or region-wide violation, the appropriate individual to sign the notice is the highest management official at the location where the violation occurred in this case, namely the Somerville Field Office. The Respondent also notes that the Somerville Office is a Field Office, not a Hearing Office, and that the chief official of that office is the District Manager, not a Chief Administrative Law Judge. The Respondent also contends that the posting should be limited to the Somerville Field Office since there was no finding of a nationwide or region-wide violation. [n1] 

V.     Charging Party's Submission

      The Charging Party filed a submission requesting that the Authority grant the GC's motion for reconsideration. [ v60 p107 ] The Charging Party maintains that the Regional Commissioner, the highest management official in SSA, Boston, Massachusetts, is the "logical person to sign the notice." Charging Party's Submission at 1. The Charging Party argues that the "Regional Civil Rights and Equal Opportunity (CREO) officer . . . reports directly to the Regional Commissioner and is charged with providing direction to contract EEO investigators employed by the Agency." Id. In this respect, the Charging Party contends that the Regional CREO is responsible for directing the contractor investigators to provide the Union with notice and an opportunity to attend investigative interviews with unit employees in Somerville or any other office in the Boston Region. Id. Thus, the Charging Party maintains that, as the Regional CREO's superior, the Regional Commissioner should sign the notice.

      In addition, the Charging Party maintains that the Respondent's claim that the notice should be signed by the District Manager of the Somerville field office is "flawed" since the District Manager is neither responsible for directing the EEO investigation nor knowledgeable of the EEO process. Id.

VI.     Analysis and Conclusions

      The Authority's decision in 59 FLRA 875 erroneously identified the Respondent in Case No. BN-CA-02-0434 as the "SSA, OHA Boston Regional Office," instead of "SSA, Boston, Massachusetts." [n2] Also, the Authority's decision incorrectly referred to the SSA Somerville Field Office as a Hearing Office, and the highest official in the Somerville Office as the Hearing Office Chief Administrative Law Judge. See 59 FLRA at 881. We find that these inadvertent errors establish extraordinary circumstances warranting reconsideration of the Authority's remedial order and notice with respect to the appropriate official to sign the notice and the scope of the posting of the notice.

A.     Appropriate Official to Sign Notice

      In 59 FLRA 875, we directed the "Hearing Office Chief Administrative Law Judge for the Somerville Office" to sign the remedial notice based on management's failure to afford the Union notice and an opportunity to be represented as required by § 7114(a)(2)(A) of the Statute at formal discussions conducted by contract investigators with two employees in the SSA's Somerville Office. As explained in 59 FLRA 875, under Authority precedent, the Authority has found that the appropriate individual to sign a remedial notice is the highest official of the activity responsible for the violation. 59 FLRA at 880-81 (citing United States Dep't of Veterans Affairs, 56 FLRA 696, 699 (2000) (Veterans Affairs)).

      Upon reconsideration, we find that the Respondent charged in the complaint in Case No. BN-CA-02-0434 - SSA, Boston, Massachusetts -- was responsible for the violation. As discussed in detail in 59 FLRA 875, the contract investigators of the Southwind Corporation were agency representatives acting on behalf of SSA in investigating the EEO complaints. Under the Statement of Work provisions of the work order with Southwind, the Regional CREO is designated as the "Investigative Service Coordinator" for complaints originating in SSA field offices, and receives a copy of the investigative report. See Joint Exhibit 12 at 6. The Boston Regional CREO acted in this capacity in coordinating and directing the investigation involving the Somerville employees. See Joint Exhibit 14 (Memorandum from Boston Regional CREO to contract investigator instructing contract investigators to make initial contacts with Somerville employees by e-mail and providing employees' e-mail information to contract investigator); Joint Exhibit 13 (Letter from Southwind President notifying Boston Regional CREO that Southwind will conduct investigation of EEO complaint of Somerville employee and requesting Boston Regional CREO to ask appropriate personnel group to provide copies of certain documentation for the complaint).

      Based on the Boston Regional CREO's role as the Investigative Service Coordinator for contract investigators, the Boston Regional CREO was responsible for ensuring that the Union was afforded notice and an opportunity to be represented at the formal discussions with the two Somerville employees. Therefore, consistent with our precedent, the Regional Commissioner for SSA, Boston, Massachusetts, as the highest management official of the activity responsible for the violations, should sign the notice. See Tr. at 118 (testimony of Boston Regional CREO that she reports to Regional Commissioner for the Boston Region). See Veterans Affairs, 56 FLRA at 699; United States Dep't of Transp., Fed. Aviation Admin., Standiford Air Traffic Control Tower, Louisville, Ky., 53 FLRA 312, 322 [ v60 p108 ] (1997); United States Dep't of Veterans Affairs, Wash., D.C., 48 FLRA 1400, 1402 (1994).

B.     Scope of Notice Posting

      In 59 FLRA 875, we ordered the posting of the notice at facilities in all offices in the SSA, OHA Boston Regional Office and in all offices of SSA, Boston, Massachusetts. The GC maintains in its motion that posting should occur only in all offices of SSA, Boston, Massachusetts, as the named Respondent in Case No. BN-CA-02-0434. Upon reconsideration, we find that the notice should be posted in all offices of SSA, Boston, Massachusetts.

      In determining the scope of a posting requirement, the Authority considers the two purposes served by the posting of a notice. United States Dep't of Justice, Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 55 FLRA 388, 394 (1999) (Office of Internal Affairs). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. Second, in many cases, the posting is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. See id. at 394-95.

      Here, we find that the notice should be posted in all offices of SSA, Boston, Massachusetts, as requested by the GC, and not only in the Somerville Field Office, as requested by the Respondent. As discussed above, the Boston Regional CREO directed and coordinated the investigations with the contract investigators. See SSA, OHA, Region II, Buffalo OHA, Buffalo, N.Y., 58 FLRA 722, 728 (2003), request for reconsideration denied, 59 FLRA 442 (Authority found that scope of posting at regional level consistent with evidence that the direction to implement change came from the regional level). We find that posting the notice in all offices of SSA, Boston, Massachusetts is warranted to indicate to employees in these offices that SSA, Boston, Massachusetts recognizes and intends to fulfill its obligations under the Statute. Cf. Office of Internal Affairs, 55 FLRA at 395 (respondent's violations of employees' Weingarten rights under § 7114(a)(2)(B) is of import to unit employees well beyond the facility where the violations occurred).

VII.     Order

      We grant the GC's request for reconsideration of the remedial order and notice in 59 FLRA 875 for the purpose of modifying the identity of the Respondent in Case No. BN-CA-02-0434, the identity of the official designated to sign the notice and the scope of the posting. The Authority's order is modified by substituting the following as paragraph 2(b) of the order:

     Pursuant to section 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Boston, Massachusetts, shall:
     2. Take the following affirmative actions in order to effectuate the purposes of the Statute:
          (b) Post at facilities in all offices in SSA, Boston, Massachusetts, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by the Regional Commissioner for SSA, Boston, Massachusetts, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.

      In addition, the notice is modified as