18:0511(69)CA - SSA and AFGE -- 1985 FLRAdec CA
[ v18 p511 ]
18:0511(69)CA
The decision of the Authority follows:
18 FLRA No. 69
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-1960
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. The Judge found further that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of that portion of the complaint.
Thereafter, the Respondent filed exceptions to the Judge's Decision, and
a supporting brief, and the Charging Party filed an opposition to the
Respondent's exceptions, and a supporting brief. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /2/ conclusions and recommended Order, as modified
herein.
In adopting the Judge's Decision, the Authority agrees that the
Respondent failed to bargain in good faith with the Union at the
national level, the level of exclusive recognition, regarding the
procedures to be observed and appropriate arrangements for employees
adversely affected by implementation of its Quality Improvement Project
(QIP). See Department of Health and Human Services, Social Security
Administration, 10 FLRA 77 (1982) and Department of Health and Human
Services, Social Security Administration, 6 FLRA 202 (1981).
Upon finding a violation, the Judge recommended that a status quo
ante remedy be ordered, and the Respondent excepted to the imposition of
such remedy. Contrary to the Judge, the Authority concludes that a
status quo ante remedy is not warranted. Thus, balancing the nature and
circumstances of the violation against the degree of disruption in
government operations that would be caused by such a remedy, and taking
into consideration the various factors set forth in Federal Correctional
Institution, 8 FLRA 604 (1982), the Authority concludes that such remedy
would not effectuate the purposes and policies of the Statute.
In this regard, the Respondent gave the Union adequate notice of its
intention to implement its QIP and the opportunity to request
negotiations. Further, upon the Union's request to bargain over the
impact and implementation of the QIP, the Respondent voluntarily
suspended all QIP actions pending negotiations and thereafter met with
the Union. Finally, the Authority finds that the object of the QIP, to
ensure uniformity of quality improvement in order to enhance the
effectiveness of the Respondent's operations, is an important management
objective which would be significantly impaired by a return to the
status quo. See Department of the Treasury, Internal Revenue Service,
Jacksonville, Florida, 15 FLRA No. 187 (1984). Although the Authority
notes, as found by the Judge, that in all the circumstances such meeting
did not amount to bargaining in good faith, after balancing the nature
and circumstances of the violation against the degree of disruption in
the Respondent's operations that would be caused by a status quo ante
remedy, and taking into consideration the factors set forth in Federal
Correctional Institution, supra, the Authority concludes that such
remedy is not warranted in the particular circumstances of this case.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Social Security Administration, Baltimore,
Maryland, shall:
1. Cease and desist from:
(a) Unilaterally implementing its Quality Improvement Project without
bargaining in good faith with the American Federation of Government
Employees, AFL-CIO, its employees' exclusive representative, at the
level of exclusive recognition, concerning procedures to be observed and
appropriate arrangements for employees adversely affected by the
implementation of such program.
(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 the American Federation of Government Employees, AFL-CIO,
concerning any planned Quality Improvement Project, and, upon request,
negotiate in good faith with the exclusive representative concerning
procedures to be observed and appropriate arrangements for employees
adversely affected by the implementation of the Quality Improvement
Project.
(b) Post at its Office of Assessments facilities, 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 an
appropriate representative of the Respondent and they 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
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED, that the portion of the complaint found not to
have violated the Statute, be, and it hereby is, dismissed.
Issued, Washington, D.C., June 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 unilaterally implement a Quality Improvement Project
without bargaining in good faith with the American Federation of
Government Employees, AFL-CIO, our employees' exclusive representative,
at the level of exclusive recognition, concerning procedures to be
observed and appropriate arrangements for employees adversely affected
by the implementation of such program.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, concerning any planned Quality Improvement Project, and, upon
request, negotiate in good faith with the exclusive representative
concerning procedures to be observed and appropriate arrangements for
employees adversely affected by the implementation of the Quality
Improvement Project.
(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, Region III, Federal Labor Relations Authority whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8456.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Francis X. Dippel
Jack Goodman
Carl Clayton
For the Respondent
Clara M. Williamson
For the General Counsel
Before: ELI NASH, JR., Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter
called the Statute), as a result of an unfair labor practice Complaint
and Notice of Hearing issued April 30, 1981 by the Regional Director,
Region 3, Federal Labor Relations Authority, Washington, D.C.
The Complaint alleges that the Social Security Administration
hereinafter called "the Respondent" violated Section 7116(a)(1) and (5)
of the Statute by engaging in a course of conduct designed to circumvent
its bargaining obligation at a national level with American Federation
of Government Employees, AFL-CIO, herein called "the Union"; and
violated Section 7116(a)(1) of the Statute by failing to properly
respond to the Union's request for information submitted on September 8,
1980. Respondent's answer denied the commission of any unfair labor
practices.
A hearing in this matter was conducted before the undersigned in
Baltimore, Maryland. All parties were represented and afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence and to argue orally. Briefs were filed and have been
duly considered.
Upon the entire record in this matter, including my observation of
the witnesses and their demeanor, and from my evaluation of the
evidence, I make the following findings of facts, conclusion and
recommendations.
Findings of Fact
1. On or about August 30, 1979, the Union was certified as the
exclusive bargaining representative for all non-supervisory Social
Security employees, in a national consolidated unit. The National
Council of Social Security Field Assessment Locals, hereinafter called
"the Council", has held national exclusive recognition for approximately
600 employees nation-wide in the Office of Assessment since 1978. /3/
Nine local unions comprise the Council.
2. Sometime around April 29, 1980, Respondent sent a proposed
Quality Improvement Project, hereinafter referred to as "the QIP", to
the Union. Basically the QIP is a system which established additional
reviews, procedures for Quality Review Specialist employees in the
Office of Assessment by both supervisors and other Quality Review
Specialists. The Union was concerned with the potential adverse effect
on Quality Review Specialists by such additional reviews; that position
descriptions of Quality Review Specialists did not provide that they
would be required to review the work of other Quality Review
Specialists, and to this extent, the QIP imposed additional job duties
on bargaining unit employees which were not contained in their official
position descriptions.
3. The Union had been first advised of the proposed QIP in early
May, 1979. On June 20, 1979, the Union submitted comments to the
proposed QIP and made a request to negotiate on all aspects of the
proposed program. The Union heard nothing further about QIP until March
1980, when several local unions contacted the Council President, Earl
Tucker to ask whether he knew anything about the implementation of QIP.
Tucker then contacted Respondent where he learned that the current QIP
package had already been transmitted to the Field Assessment Officers
and to the Union. However, the Union did not receive a copy of the
document until around May 9, 1980. In a covering memorandum to Tucker
dated April 29, 1980 Respondent stated:
Since the formulation of the plans is a regional activity, I
feel that dialogue between management and the union be left to the
appropriate FAO managers, and AFGE locals. Therefore, I have
instructed FAO management to meet and negotiate with the
appropriate AFGE locals . . .
The Union responded to the proposed QIP by letter dated May 9, 1980,
in which it demanded to negotiate the QIP at the national level and that
no action be taken in any region to negotiate or implement any aspect of
the QIP until national negotiations had been completed.
4. Respondent replied to the May 9, 1980 demands by memorandum of
June 13, 1980, which stated:
We have reviewed your memorandum regarding the Quality
Improvement Project (QIP). While we do not believe that all
aspects of the Project are negotiable, we recognize that there
could be elements of the QIP with impact on conditions employment
which are appropriate for negotiation at the Associate
Commissioner/National Council level.
5. Around September 8, 1980, the Union submitted its proposals
concerning the impact and implementation of the QIP and requested a
"rather lengthy and detailed study, including much QAFO/QASO input . .
." which was specifically referred to in the proposed QIP submitted to
the Union under the section entitled "Ongoing Reviews", under Tab II.
6. About November 3, 1980, the Union received a memorandum from
Respondent stating that impact bargaining on the QIP and the ground
rules for mid-term bargaining on the national agreement would be held at
Respondent's headquarters on November 18 and 19, 1980. Upon receipt of
that memorandum, Tucker contacted Respondent's Chief Negotiator, Martin
Mettee, to complain that Respondent was unilaterally establishing time
frames for negotiations, which was improper as they were equal partners
and the dates for negotiations should have been mutually decided.
7. On November 10, 1980, Respondent replied to the Union's proposals
submitted on September 8, 1980. In regard to the Union's request for
information received from Field Assessment Office Components, Respondent
stated that this information was adequately explained in the covering
memorandum of the QIP Package of February 26, 1980 and in the package
itself. In this memorandum, Respondent also stated that its position
had been upheld by the Federal Labor Relations Authority in Case
3-CA-1407. In that case the Regional Director found that further
proceedings were unwarranted since the Union's request for the
information appeared to be vague and overbroad. That case, however,
concerned only the information requested in item 1 of the Union's letter
of July 17, 1980. In its memorandum, Respondent failed to identify
which of the Union's proposals it contended were nonnegotiable, but
instead indicated that some of such proposals concerned the substance of
the QIP. On November 14, 1980, the Union requested that Respondent
identify which proposals it felt were nonnegotiable. By memorandum
dated November 17, 1980, Respondent answered the Union's request saying,
"By 'substance' we mean all of the guidelines outlined in the QIP
package dated February 26, 1980." Respondent added that it would not
provide the Union with the additional information requested, as in its
estimation any more than the basic QIP was irrelevant to impact and
implementation bargaining. The union apparently did not respond to this
statement.
8. The Union's Chief Negotiator for QIP, Barbara Weller, whose duty
station is San Francisco, California received a telephone call from
Respondent's Chief Negotiator, Martin Mettee, on or about September 24,
1980, during which Mettee informed her that Respondent was prepared to
negotiate on ground rules and asked if the Union would be willing to
negotiate on the QIP at the same time. After discussing this matter
with Council President Earl Tucker, Weller contacted Mettee and stated
that the Union would agree to go ahead and negotiate QIP, but that they
would have to have at least one day or one half day following
negotiations on the ground rules before negotiations on the QIP
commenced. Mettee informed her that this would be fine, and there would
be no problem. Weller also asked, when Respondent would reply to the
September 8, 1980 Union proposals, and he stated that the response would
be forthcoming within a week or so. Mettee again contacted Weller
during the latter part of October, 1980 and stated that Respondent was
setting up November 18 and 19, 1980 as dates for negotiations. Weller
voiced concern that Respondent was limiting the Union's negotiating time
and that the Union would need additional time following negotiations on
the ground rules in order to prepare for QIP negotiations. Weller
reminded Mettee that the Union had not received a response to its
proposals and that it would be necessary to know Respondent's position
in order to even prepare for negotiations. In addition, Weller informed
Mettee that the Union might need more time than November 18 and 19, to
which he replied, there would be no problem if they needed to extend the
time.
9. On November 6, 1980, Weller received Respondent's memorandum
scheduling the negotiations for November 18 and 19, 1980. Weller then
contacted Mettee and informed him that the Union would need more time
than two days for the negotiations. Mettee told her that those were
tentative dates, that the Union would not have to worry about getting
additional time and that the travel orders could be amended. Weller
again informed Mettee that the Union had not received its response. She
explained to him that November 11, 1980 was a holiday and that she was
going to Los Angeles, California to conduct training on Thursday and
Friday of the following week. Weller subsequently received Respondent's
response on November 10, 1980.
10. Negotiations on the ground rules began at approximately 9:00
a.m. on November 18, 1980 and were completed at approximately 2:30 p.m.
Discussions on the QIP began shortly thereafter at approximately 3:00
p.m. The Union was allowed an additional person for the QIP
negotiations, and Barry Nelson joined the Union's negotiating team
during the afternoon of November 18, 1980. The QIP was discussed for
approximately one hour during which time Respondent provided some
general information to the Union concerning the QIP. The parties
adjourned negotiations at approximately 4:00 p.m., and the Union went
into caucus to work on additional QIP proposals, based on information it
had gained during the afternoon discussions. The Union negotiators
worked on these proposals into the evening and returned to caucus at
approximately 8:00 a.m., the following morning.
11. At approximately 9:30 a.m. on November 19, 1980 the Union
negotiating team informed President Earl Tucker, who was not a member of
the QIP negotiation team, but was at the National Office to negotiate
the ground rules, that they had not finished work on the proposals.
Tucker almost immediately thereafter contacted Bill Wolfe, a member of
the Respondent's negotiating team, and explained that the Union's
negotiating team was still in caucus and would not be available at 10:00
a.m. Tucker stated that the Union would attempt to be ready by 12:30.
Tucker also explained to Wolfe that there was a minor problem with the
ground rules which he had seen on the evening of November 18, 1980 but,
that only a cosmetic change needed to be made, and Wolfe replied that it
would be no problem. Barry Nelson, a member of the Union negotiating
team received a telephone call from Bill Wolfe in the Union's caucus
room at approximately 12:30 p.m. during which Wolfe asked where the
Union negotiating team was. Nelson informed him that they were in the
caucus room preparing counterproposals based on information received the
day before. Wolfe ordered the Union to have someone back at the table
by 1:00 p.m. Wolfe then stated that the members of the Union
negotiating team had travel orders to be at negotiations, that they were
supposed to be at negotiations, and that they only had the rest of the
day to reach agreement because the travel orders required that the Union
team return to their duty stations the following day. He also stated
that if they were not in travel status the following day, they would be
placed on AWOL. Nelson then told Wolfe that his understanding was that
additional time would be granted if necessary and that he felt it
improper for Respondent to try to coerce the Union into reaching an
agreement by imposing artificial deadlines. Nelson warned that
Respondent did not have the right to limit the Union's caucus time. At
this point, Tucker entered the room and requested to speak with Wolfe.
Tucker informed Wolfe that the team was still caucusing. Wolfe
responded that management was waiting and wanted to resume negotiations.
Tucker stated that he wanted to talk with Wolfe about the ground rules
in order to make the cosmetic changes required in order to bring the
agreement in conformance with law. Tucker, Nelson and another member of
the negotiating team then went to the negotiation room. Tucker pointed
out that Respondent was ordering the Union team around and trying to
control the whole process. Tucker explained that the Union wanted
several changes in the ground rules including changes concerning
official time being granted for negotiators only at the negotiating
table. The Union wanted the rules altered to reflect that official
time, travel, and per diem would continue through procedures before the
Impasses Panel. The Union also wanted to add a provision to reflect
that either party could caucus. Respondent's team then caucused for
about 5 minutes regarding these requested changes and returned stating
that they could not agree to those changes and that the negotiations
were at impasse. Respondent requested to resume negotiations on the
QIP, however, Tucker informed them that, in light of prior experience
with Respondent, he would not subject his team to negotiations without
ground rules.
12. Although Tucker stated that he would attempt to contact a
mediator, he was unable to do so that day. He called Mettee at about
3:00 p.m. but, was unable to talk with him until around 4:00 p.m.
During this conversation, Tucker informed Mettee that although he had
been unable to obtain a mediator, the Union had reconsidered its
position and would negotiate on the QIP before the ground rules were
finalized. Mettee then informed Tucker that the management team had
gone home. Tucker requested that they resume negotiations on the QIP
the following day at 9:00 a.m. Mettee stated that would be impossible
since Respondent's team would be attending a going-away party for
negotiator Bill Wolfe on that day. The Union then received a memorandum
from Respondent dated November 19, 1980, ordering the Union negotiators
to return to their official duty stations, since it concluded that only
two days had been allotted for these negotiations. The Union responded
on November 20 that the agreement to conclude negotiations in only two
days was tentative. The Union contended that additional time would be
granted if the negotiations were not completed in two days and that
refusal to grant additional time was in bad faith.
13. Thereafter, the problem with the ground rules were subsequently
resolved in a 5 minute telephone conversation between Earl Tucker and an
agency representative on November 20, 1980. Language was added that
either party could caucus and that the agreement would be in accord with
the Civil Service Reform Act.
14. The Union replied to the above memorandum on November 20, 1980,
emphasizing that the setting of two days for negotiations was tentative
and that the Union had been told that additional time would be granted,
if necessary. The Union also emphasized that curtailment of its caucus
time constituted bargaining in bad faith. The Union submitted
additional proposals along with this memorandum.
15. Respondent thereafter distributed a memorandum dated December
23, 1980, to its Field Assessment Offices entitled "Resumption of the
Quality Improvement Project-- Action". This memorandum stated, in
pertinent part:
As you are probably aware, discussions with the National
Council of SSA Field Assessment Locals regarding the impact and
implementation of the Quality Improvement Project (QIP) were
broken off on November 19, 1980, for a variety of reasons, most
notably a lack of concrete proposals. Since that time, the
Council has submitted additional proposals which will be addressed
at a later time.
Management feels that it has met its obligation to meet with
the Union on a national basis and feels no obligation to delay
further development of local QIP plans. Therefore, effective
immediately, my memo of June 2, 1980, suspending the QIP is
rescinded. Preparations should commence for developing local QIP
plans as instructed in my memo of February 26, 1980.
From the beginning it has been my contention that since QIP
plans are to be developed by field managers and tailored to the
needs of individual components, management's obligation to
negotiate with the Union regarding the impact of any changes in
personnel policies, practices, and procedures which may result
from the plans, as well as the procedures for implementation,
should be undertaken at the local level. I trust that your field
managers will meet with the appropriate local Union
representatives prior to the implementation of their QIP plans.
16. By memorandum dated January 26, 1981, Respondent answered Union
proposals submitted on November 20, 1980. This memorandum stating that:
It has always been our contention that negotiations on the
impact and implementation of the QIP are more appropriate at the
local level since each QIP plan will be tailored to the needs and
requirements of each office . . .
17. On January 26, 1981, the Union replied to Respondent's
memorandum of December 23, 1980, demanding that the parties return to
the bargaining table on the QIP. On or about February 10, 1981, the
Union received a memorandum from Respondent entitled "Resumption of the
Quality Improvement Project (Your Memo dated January 26, 1981)
Information," which stated in pertinent portions:
As you are aware, we directed our Field Assessment Offices to
resume efforts toward the development of Quality Improvement
Project (QIP) plans by memo dated December 23, 1980. Our plans
are unchanged.
We do not believe that resuming formal negotiations on the
matter is appropriate . . . . As you know, we did agree to some
of your proposals. Others, however were issues which we explained
were either not negotiable or were more appropriate for bargaining
at the local level . . . regarding the appropriate bargaining
level, it has been our position from the beginning that the impact
and implementation of QIP plans is more appropriate at the level
where the plans are to be developed and implemented . . . we have
instructed our FAO's to carry on negotiations with the appropriate
local Union officials . . .
18. On or about February 3, 1981, Barry Nelson called Martin Mettee
and inquired if Respondent intended to implement the QIP. Mettee
informed Nelson that Respondent's intention was to implement. Nelson
requested that Respondent not implement the program and return to the
bargaining table, that the Union thought they had something to
negotiate, and that the Union was willing to negotiate and reach
agreement which would be satisfactory to all parties. Nelson stated
that Respondent was going to implement and would not return to the
bargaining table.
Discussion and Conclusions
It is conceded by Respondent that it had an obligation to bargain
about the impact and implementation of the QIP at the national level.
Respondent however, contends that it did everything conceivable to
comply with its obligation to negotiate the impact and implementation of
the QIP including giving the Union the QIP package almost two years in
advance of the proposed implementation; withdrawing and revising the
all-inclusive QIP package to include concerns from the Union; reissuing
the revised QIP package and arranging for negotiations of any further
counter-proposals; arranging time, place and travel for Union
negotiators; meeting with the Union at the prearranged date and time;
offering no counter-proposals during the prearranged dates; and its
considering non-negotiable counter-proposals offered two days after the
parties disbanded. Respondent also points out that the QIP was
implemented in only three of ten regions involved.
On the other hand, the General Counsel maintains that Respondent,
engaged in surface bargaining at the national level and did not approach
negotiations with any resolve to reach agreement. The General Counsel
argues that Respondent sought to bargain concerning QIP at the local
level and that its action at the national level bargaining sessions of
November 18 and 19, 1980 were a sham designed to cover its real motive.
The record clearly shows that despite the fact that a certification of
consolidated unit issued in August 1979, Respondent was insistent that
negotiations were more appropriate at the local level and that the Union
sought to bargain at least the impact and implementation of QIP at the
national level. Thus, the record indicates that both before and after
the November negotiations Respondent made no secret that it felt that
QIP negotiations should be at the local level and ignored Union
exhortations to the contrary. The pivotal question here is whether
Respondent's conduct herein was designed to circumvent the national
obligation to negotiate and channel bargaining on QIP to the local
level.
It is hornbook law that an employer does not meet its obligation to
bargain merely by meeting with the representative of its employees.
Either party to a bargaining relationship must maintain the intention of
reaching a negotiated agreement. Moreover, if no single aspect of an
employer's conduct violates that duty, the totality of the conduct may
be indicative of bad faith bargaining. The record demonstrates that
Respondent was convinced that bargaining on the QIP was a local matter
although the Union steadfastly disagreed. The totality of Respondent's
conduct must be carefully weighed.
Section 7103(12) of the Statute defines collective bargaining in
terms of the "mutual obligation" of the parties to consult and bargain
in good faith. The legislative history of the State reflects the goal
of bringing balance and mutual responsibility to the union-management
relationship in the Federal sector. Thus, the collective bargaining
relationship envisioned by the Statute requires that each party have the
ability to function as an equal partner within the relationship. The
Authority has made it clear that each party shall deal with the other
with directness and dignity appropriate to partners on an equal footing.
United States Air Force, Air Force Logistics Command Aerospace Guidance
and Meteorology Center, Newark, Ohio, 4 FLRA No. 70 (October 24, 1980).
In this matter Respondent, among other things, unilaterally set the
dates for negotiations, which should have been by mutual agreement,
imposed deadlines on the submission of proposals, during negotiations
sought to limit the Union's caucus time and refused to return to the
bargaining table on the matter after negotiations were disbanded.
It is noted that the Union complained about Respondent's unilateral
setting of the time frame for negotiations and admonished, on more than
one occasion, that it might need more time for negotiations. Respondent
prior to negotiations assured the Union that more time would not be a
problem. However, once negotiations began Respondent took an adamant
stand on the time issue, because in its opinion there was agreement for
only two days of negotiations. The record does not support Respondent's
position in that respect and it is found, contrary to Respondent's
argument, that there was no agreement that negotiations would last only
two days, but that it was agreed prior to negotiations that additional
time would be granted to the Union, if necessary. Further, Respondent
sought to supervise the Union's use of time during the negotiations,
interrupted Union caucuses and, in fact, appeared to be attempting to
supervise the Union's efforts. Respondent after pressuring Union
negotiators to submit counterproposals and demanding that it return to
the bargaining table, suddenly announced that one of the reasons it
could not continue negotiations on the following day was because its
negotiators had to attend a going-away party. Respondent's
unwillingness to yield on the time issue while insisting that
negotiations take place at times and places unilaterally established by
its team and its attempts to supervise Union negotiators time during
negotiations is a significant factor in determining whether its conduct
resulted in a good faith effort to bargain over the QIP issue.
Moreover, Respondent's insistence that QIP negotiations be conducted at
the local level despite the Union's claim that there were matters to be
discussed at the national level regarding impact and implementation
shows a clear predilection on the matter, also indicating a lack of good
faith effort to bargain at the national level concerning the QIP.
The record shows that throughout negotiations, Respondent attempted
to limit the Union's caucus time and to apply pressure to the Union's
negotiation team, pointing out that negotiations had been set for two
days; referring to caucus time as a waste of time; telling the Union
to return to the bargaining table; stating that valuable time was being
wasted; reminding the Union that expenses for the Union negotiation
team were being paid by management and that their absence from the
bargaining table represented a breach in good faith bargaining; and,
disbanding negotiations and refusing to return to the bargaining table.
In all the circumstances of this case, I agree with the General
Counsel that caucus time was part of the negotiation process and that it
was improper for Respondent to interfere with that time or to attempt to
supervise Union negotiators. Respondent showed no reason why Union
negotiators could not have been allowed sufficient time to formulate
acceptable counter-proposals, that the Union negotiators misused their
time or that the time for negotiation could not have been extended
pursuant to the parties prior agreement. In fact, it appears that the
management negotiators were more concerned with adherence to the
unilaterally established time frames than with engaging in meaningful
bargaining over the QIP. In this regard, management information on the
QIP was given to the Union on the evening of November 18 and Union
negotiators worked into the late hours of that evening formulating
counterproposals, but did not complete the task. When the Union
returned the following morning to work on counterproposals it had very
little opportunity to do so because of constant management interference
because of the time frame. It is difficult to see how any meaningful
counterproposals could have been formulated when the Union negotiators
were being required to answer for all time spent in caucus. Such
conduct on Respondent's part clearly evinces a misconception as to its
role in the collective bargaining relationship.
Based on the totality of Respondent's conduct, it appears that it had
no intention of arriving at any agreement concerning the QIP at these
negotiations or that it intended to reach any agreement concerning the
QIP during the November negotiations at the national level, but that
these meetings constituted surface bargaining over the matter.
Accordingly, it is found that Respondent's entire course of conduct was
not tied to the realities of the bargaining situation herein, and is
violative of Section 7116(a)(5) and (1) of the Statute.
Having argued that it had fulfilled the obligation to bargain at the
national level, Respondent contends that it found itself dealing with
"unprepared union negotiators" who showed a lack of organization and
preparation during negotiations and who sought to delay actual
negotiations. This argument is unpersuasive. The record established
that the Union, once it received Respondent's information regarding the
QIP, worked diligently within the unilaterally established time frame to
formulate counterproposals acceptable to both sides. The Statute
requires parties to "meet at reasonable times . . . and to avoid
unnecessary delay." Record evidence shows that the Union sought to
conform with this requirement. There is no showing that it engaged in
dilatory or evasive tactics but, only that it needed time during
negotiations to respond to information submitted by Respondent.
Respondent's submitting information on the QIP one afternoon and
expecting a quick response that next day concerning fairly complex
proposals from Union representatives, who had been brought from all over
the country, to deal with management representatives stationed in the
national office points out the absurdity of Respondent unilaterally
placing severe time restrictions for negotiations on the Union.
It is also found that Respondent's contention that the QIP was
implemented in only three of its ten regions is immaterial to the
proceedings. The question in this matter was not whether the QIP was in
place when negotiations occurred in November 1980, but whether
Respondent met its bargaining obligation concerning impact and
implementation at the national level. Furthermore, there is no denial
by Respondent that the QIP was implemented prior to any national
negotiations on the matter.
The General Counsel asserts that Respondent failed to properly
respond to the Union's request for information submitted on September 8,
1980. The General Counsel's theory in this regard is that a refusal to
supply such information reflected on Respondent's entire course of
conduct in this matter. I do not agree. Respondent advised the Union
that it would not provide the information, as it felt it was irrelevant
to impact and implementation bargaining on the QIP. In order to obtain
such information a union must show that it is necessary and relevant for
it to perform its bargaining duties. No such showing is made on this
record. Neither is it clear that lack of the requested information
contributed to the Union's alleged unpreparedness during the November 18
and 19 bargaining sessions, therefore, any finding that such was
necessary or relevant would be purely speculative. Accordingly, it is
recommended that the Section 7116(a)(1) violation based on refusal to
supply the information requested by the Union on September 18, 1980 be
dismissed.
Having found that Respondent instituted the Quality Improvement
Project without bargaining with the Council concerning the impact and
implementation of such program, I conclude that Respondent violated
Section 7116(a)(5) and (1) of the Statute. Having further found that
Respondent did not violate Section 7116(a)(1) of the Statute by failing
to furnish certain information to the Council concerning the Quality
Improvement Project, I recommend that the Authority adopt the following
Order.
ORDER
Pursuant to 5 U.S.C. 7118 and Section 2423.26 of the Final Rules and
Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg.
3482, 3510 (1980), it is hereby ordered that the Office of Assessments,
Social Security Administration, Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Unilaterally implementing the Quality Improvement Program
without bargaining in good faith with exclusive representative,
the American Federation of Government Employees, AFL-CIO, or any
other exclusive representative, and affording it an opportunity to
bargain on the implementation and impact of the program.
(b) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise of the
rights guaranteed by the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action designed and found
necessary to effectuate the policies of the Statute:
(a) Revoke the Quality Improvement Program.
(b) Upon request bargain with the American Federation of
Government Employees, AFL-CIO, or any other exclusive
representative concerning the impact and implementation of the
Quality Improvement Program on employees adversely affected.
(c) Post at its Offices of Assessments, Regional Offices,
copies of the attached notice marked "Appendix." Copies of said
notice, to be furnished by the Regional Director for Region 3,
after being signed by an authorized representative, shall be
posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writing,
within 30 days from the date of this order, what steps it has
taken to comply herewith.
ELI NASH, JR.
Administrative Law Judge
Dated: February 25, 1982
Washington, D.C.
APPENDIX
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally implement a Quality Improvement Project
without bargaining in good faith with the exclusive representative, the
American Federation of Government Employees, AFL-CIO, or any other
exclusive representative, and affording it an opportunity to bargain on
the implementation and impact of the program.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of the rights guaranteed by the
Federal Service Labor-Management Relations Statute.
WE WILL revoke the Quality Improvement Program.
WE WILL upon request bargain with the American Federation of
Government Employees, concerning the impact and implementation of the
Quality Improvement Program on adversely affected employees.
(Agency or Activity)
Dated: By: (Signature)
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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region 3 for the Federal Labor Relations Authority whose
address is: 1111 18th Street, Suite 700, Washington, D.C. 20036 and
whose telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel moved to strike portions of the Respondent's
brief in support of its exceptions on the grounds that the brief failed
to identify the specific page reference to the transcript as required by
section 2423.28(a)(3) of the Authority's Rules and Regulations. The
motion is denied because the General Counsel has not demonstrated any
prejudice as a result of this technical defect.
/2/ In adopting the Judge's dismissal of the alleged section
7116(a)(1) violation regarding a refusal to supply information, the
Authority notes particularly that no exceptions were filed concerning
such finding.
/3/ The Office of Assessment has as one of its primary
responsibilities the development and maintenance of assessment
activities designed to assure the quality of benefit payments and
continuing eligibility in all Social Security programs.