09:0909(124)CA - SSA, Baltimore, MD and AFGE -- 1982 FLRAdec CA

 9 FLRA No. 124
 
 SOCIAL SECURITY ADMINISTRATION
 BALTIMORE, MARYLAND
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-786
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:  /1/
 
    AT ALL TIMES RELEVANT HEREIN, THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO (THE UNION) HAS BEEN THE CERTIFIED EXCLUSIVE
 REPRESENTATIVE OF A UNIT WHICH INCLUDES CERTAIN OF THE RESPONDENT'S LOS
 ANGELES DISTRICT OFFICE (LADO) EMPLOYEES.
 
    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 CONDUCTED "FEEDBACK" MEETINGS WITH UNIT EMPLOYEES
 WHEREIN THE INPUT, OPINIONS, AND SENTIMENT OF THOSE EMPLOYEES CONCERNING
 WORK PERFORMANCE GOALS WERE SOLICITED WITHOUT FIRST OBTAINING THE
 CONSENT OF THE UNION.
 
    ON OR ABOUT OCTOBER 7, 1980, ALEXANDER WOODS, A UNION REPRESENTATIVE
 AT LADO, RECEIVED NOTICE FROM TWO SUPERVISORS IN THE
 REDETERMIANTIONS/OPERATIONS (REDET/OP) UNIT OF A SCHEDULED MEETING TO
 DISCUSS, AMONG OTHER THINGS, PERFORMANCE GOALS/STANDARDS WITH EMPLOYEES
 ASSIGNED TO THAT UNIT.  WOODS INFORMED ANOTHER UNION REPRESENTATIVE,
 EDWARD BRONSON, OF THE PROPOSED MEETING.  BRONSON, IN TURN, AND ON
 BEHALF OF THE UNION, OBJECTED TO THE HOLDING OF THE "FEEDBACK" MEETING
 WITH EMPLOYEES BECAUSE HE FELT THE UNION SHOULD BE THE PARTY TO OBTAIN
 FEEDBACK FROM THEM.  DESPITE THE UNION'S OBJECTIONS, THE FEEDBACK
 MEETING WAS CONDUCTED ON OR ABOUT OCTOBER 8, 1980 BY THE TWO SUPERVISORS
 WITH EMPLOYEES IN THE REDET/OP UNIT AT WHICH THE INPUT, OPINIONS, AND
 SENTIMENT OF THE EMPLOYEES REGARDING WORK PERFORMANCE GOALS/STANDARDS
 WERE SOLICITED.  WOODS ATTENDED THE MEETING IN HIS CAPACITY AS UNION
 REPRESENTATIVE.  A SIMILAR MEETING WAS CONDUCTED IN THE SERVICE
 REPRESENTATIVE (SR) UNIT ON OR ABOUT OCTOBER 20, 1980 DESPITE A SIMILAR
 OBJECTION BY UNION REPRESENTATIVE BRONSON WHO HAD BEEN TOLD BY TWO
 MANAGEMENT REPRESENTATIVES THAT THE SUPERVISORS INVOLVED IN THE MEETING
 WOULD ONLY BE GETTING INPUT IN ORDER TO FORMULATE A PROPOSAL CONCERNING
 PERFORMANCE GOALS/STANDARDS.  BRONSON WAS IN ATTENDANCE AT THAT MEETING
 IN HIS CAPACITY AS UNION REPRESENTATIVE.  AS OF THE DATE OF THE
 STIPULATION, NO NEW PERFORMANCE STANDARDS HAD BEEN ISSUED.
 
    THE GENERAL COUNSEL CONTENDS THAT THE RESPONDENT'S ACTIONS
 CONSTITUTED A REFUSAL TO BARGAIN WITH THE UNION IN DEROGATION OF THE
 UNION'S STATUS AND RIGHTS AS EXCLUSIVE REPRESENTATIVE.  THE RESPONDENT
 CONTENDS THAT, BY HOLDING THE TWO MEETINGS IN QUESTION, IT WAS MERELY
 EXERCISING ITS RIGHT UNDER 5 U.S.C. 4302(A)(2) ENACTED IN THE CIVIL
 SERVICE REFORM ACT OF 1978 (SCRA) /2/ TO DEVELOP PERFORMANCE APPRAISAL
 SYSTEMS WITH EMPLOYEE PARTICIPATION.  THE RESPONDENT ALSO CONTENDS THAT
 THE UNION'S INSISTENCE UPON BEING THE SOLE CONDUIT FOR INPUT RELATING TO
 PERFORMANCE GOALS CONSTITUTES INTERFERENCE WITH THE RESPONDENT'S RIGHT
 UNDER SECTION 7106 OF THE STATUTE TO ESTABLISH PERFORMANCE STANDARDS AND
 TO DETERMINE ITS ORGANIZATION AND STAFFING PATTERNS AND MAINTAIN THE
 EFFICIENCY AND EFFECTIVENESS OF ITS OPERATIONS.  FURTHER, THE RESPONDENT
 CONTENDS THAT THE MEETINGS HAD A DE MINIMIS IMPACT ON EMPLOYEES AND
 THEREFORE CANNOT BE FOUND TO VIOLATE THE STATUTE.
 
    THE AUTHORITY FINDS THAT THE RESPONDENT'S FAILURE AND REFUSAL TO GIVE
 THE UNION AN OPPORTUNITY TO NEGOTIATE OVER THE MANNER IN WHICH
 BARGAINING UNIT EMPLOYEES WOULD PARTICIPATE IN ESTABLISHING PERFORMANCE
 STANDARDS CONSTITUTED A REFUSAL TO BARGAIN IN GOOD FAITH IN VIOLATION OF
 SECTION 7116(A)(1) AND (5) OF THE STATUTE.  THUS, AS THE AUTHORITY
 STATED IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
 TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980), APPEAL DOCKETED,
 NO. 80-1895 (D.C. CIR. AUG. 4, 1980):  /3/
 
    CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION 7101
 AND OTHER SECTIONS OF
 
    THE STATUTE, PERFORMANCE APPRAISAL SYSTEMS, APART FROM THE
 IDENTIFICATION OF CRITICAL ELEMENTS
 
    AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, ARE WITHIN THE DUTY
 TO BARGAIN, TO THE EXTENT
 
    THEY ARE CONSISTENT WITH LAW AND REGULATION.  TO THE EXTENT THAT AN
 AGENCY HAS DISCRETION WITH
 
    RESPECT TO A GIVEN MATTER RELATED TO SUCH SYSTEMS THE AGENCY MUST
 UPON REQUEST NEGOTIATE WITH
 
    AN EXCLUSIVE REPRESENTATIVE OVER THAT MATTER.  IN PARTICULAR, AS
 NOTED PREVIOUSLY, SECTION
 
    4302(A)(2) OF THE CSRA REQUIRES THAT PERFORMANCE APPRAISAL SYSTEMS
 "ENCOURAGE EMPLOYEE
 
    PARTICIPATION IN ESTABLISHING PERFORMANCE STANDARDS" BUT DOES NOT
 SPECIFY THE FORM WHICH SUCH
 
    EMPLOYEE PARTICIPATION DOES NOT SPECIFY THE FORM WHICH SUCH EMPLOYEE
 PARTICIPATION MUST
 
    TAKE.  CONSEQUENTLY, AMONG OTHER SIGNIFICANT ASPECTS OF PERFORMANCE
 APPRAISAL SYSTEMS, THE
 
    MANNER IN WHICH A PARTICULAR AGENCY PROVIDES FOR SUCH EMPLOYEE
 PARTICIPATION IS WITHIN THE
 
    AGENCY'S DISCRETION AND, THEREFORE, WITHIN THE DUTY TO BARGAIN TO THE
 EXTENT THAT IT WOULD NOT
 
    PREVENT THE AGENCY FROM ESTABLISHING PERFORMANCE STANDARDS AND
 CRITICAL ELEMENTS PURSUANT TO
 
    ITS STATUTORY RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK.  (FOOTNOTES
 OMITTED.)
 
    ACCORDINGLY, WHILE SECTION 4302 MAKES NO DISTINCTIONS BETWEEN AN
 AGENCY'S RESPONSIBILITY TO ENCOURAGE PARTICIPATION BY EMPLOYEES WITHIN
 UNITS OF EXCLUSIVE RECOGNITION AND UNREPRESENTED EMPLOYEES, THE STATUTE
 REQUIRES AN AGENCY TO BARGAIN, UPON REQUEST, WITH THE EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES CONCERNING THE MANNER IN WHICH EMPLOYEE
 PARTICIPATION IN ESTABLISHING PERFORMANCE STANDARDS SHALL BE PROVIDED.
 
    IN THE INSTANT CASE, IT IS UNDISPUTED THAT THE RESPONDENT TWICE HELD
 MEETINGS WITH UNIT EMPLOYEES TO OBTAIN "FEEDBACK" CONCERNING THE
 ESTABLISHMENT OF PERFORMANCE STANDARDS DESPITE THE UNION'S EXPRESSED
 OBJECTIONS TO THE HOLDING OF THE MEETINGS.  BY SUCH CONDUCT, THE
 RESPONDENT UNILATERALLY DETERMINED, THEREBY DENYING THE UNION AN
 OPPORTUNITY TO BARGAIN ABOUT, THE MANNER IN WHICH EMPLOYEE PARTICIPATION
 IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS WOULD BE PROVIDED.  SUCH
 CONDUCT THEREFORE CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) AND (5)
 OF THE STATUTE.  /4/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE SOCIAL SECURITY ADMINISTRATION,
 BALTIMORE, MARYLAND, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO NEGOTIATE WITH THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
 RESPONDENT'S EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT
 EMPLOYEES WILL PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) NOTIFY AND, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
 BARGAIN UPON REQUEST WITH THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
 RESPONDENT'S EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT
 EMPLOYEES WILL PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS.
 
    (B) POST AT ITS FACILITIES LOCATED AT THE LOS ANGELES DISTRICT
 OFFICE, LOS ANGELES, CALIFORNIA, 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 DIRECTOR, LOS ANGELES
 DISTRICT OFFICE, AND SHALL BE POSTED AND MAINTAINED BY THE DIRECTOR FOR
 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION VIII, FEDERAL LABOR
 RELATIONS AUTHORITY, 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES,
 CALIFORNIA, 90071, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
   
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
            CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT REFUSE TO NEGOTIATE WITH THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF
 OUR EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT EMPLOYEES WILL
 PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL NOTIFY AND, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
 BARGAIN UPON REQUEST WITH THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR
 EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT EMPLOYEES WILL
 PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS.
 
                                (ACTIVITY)
 
    DATED:  BY:  (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VIII, WHOSE ADDRESS
 IS:  350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA,
 90071, AND WHOSE TELEPHONE NUMBER IS:  (213) 688-3805.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE GENERAL COUNSEL HAS MOVED TO STRIKE CERTAIN PORTIONS OF THE
 RESPONDENT'S BRIEF ON THE GROUNDS THAT THOSE PORTIONS PRESENT MATTERS
 WHICH GO BEYOND THE FACTS STIPULATED BY THE PARTIES.  THE RESPONDENT HAS
 FILED AN OPPOSITION TO THE MOTION AS WELL AS A CROSS-MOTION TO STRIKE
 AND DISMISS THE GENERAL COUNSEL'S MOTION TO STRIKE.  IN ANY MATTER
 SUBMITTED DIRECTLY TO AND ACCEPTED BY THE AUTHORITY FOR DECISION BASED
 UPON A STIPULATION OF FACTS, THE AUTHORITY WILL CONSIDER ONLY FACTS
 CONTAINED IN THE STIPULATION.  ACCORDINGLY, THE AUTHORITY DENIES THE
 GENERAL COUNSEL'S MOTION TO STRIKE, AND FINDS IT UNNECESSARY TO PASS
 UPON THE RESPONDENT'S OPPOSITION AND CROSS-MOTION.
 
    /2/ SEC. 4302.  ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
 
    (A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
 SYSTEMS WHICH--
 
   *          *          *          *
 
 
    (2) ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING PERFORMANCE
 STANDARDS(.)
 
    /3/ SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C. 3 FLRA
 783(1980).
 
    /4/ SUCH CONDUCT IS NOT RENDERED DE MINIMIS BY THE FACT THAT THE
 RESPONDENT HAD NOT PROMULGATED PERFORMANCE STANDARDS AS OF THE DATE OF
 THE PARTIES' STIPULATION OF FACTS.