25:0571(43)CA - SSA, Office of Hearings and Appeals and AFGE Council 215 -- 1987 FLRAdec CA



[ v25 p571 ]
25:0571(43)CA
The decision of the Authority follows:


 25 FLRA No. 43
 
 SOCIAL SECURTY ADMINISTRATION 
 OFFICE OF HEARINGS AND APPEALS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL 215, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-60120
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor parctice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based upon a stipulation entered into by the Social
 Security Administration, Office of Hearings and Appeals (Respondent),
 the American Federation of Government Employees, Council 215, AFL-CIO
 (Charging Party or Union), and the General Counsel.  The complaint
 alleged that the Respondent violated sections 7116(a)(1) and (8) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 failing to comply with section 7121(b)(3)(B).  That is, the Respondent:
 (1) did not notify the Charging Party that a bargaining unit employee
 had filed a grievance without union representation, and (2) processed
 the grievance without serving the Charging Party with copies of all
 documents about the grievance.
 
    II.  Background
 
    On August 30, 1979, the American Federation of Government Employees,
 AFL-CIO (AFGE) was certified as the exclusive representative for a
 majority of the Respondent's employees in a national consolidated unit.
 The Charging Party is an agent of the AFGE and represents employees at
 the Repondent's Arlington, Virginia location.
 
    On June 11, 1982, the Social Security Administration (SSA) entered
 into a national collective bargaining aggreement with the AFGE.  The
 aggreement included a grievance procedure in accordance with section
 7121.  It also included a provision in accordance with section
 7121(b)(3)(B), assuring:  (1) an employee the right to present a
 grievance on his/her own behalf, and (2) the Union the right to be
 present during the grievance proceeding.
 
    On or about November 8, 1985, Michael E. Bryant, a bargaining unit
 employee assigned to the Respondent's Arlington, Virginia location,
 presented a grievance on his own behalf to the Respondent under the
 SSA-AFGE collective bargaining agreement.  The grievance concerned
 Bryant's performance appraisal ratings.
 
    On November 22, 1985, the Respondent, through its agent Catherine
 Osborne, issued a written decision on Bryant's grievance.  During the
 processing of the grievance, Osborne and Bryant did not meet in person
 to discuss the grievance.
 
    Bryant did not move the grievance to the second step of grievance
 procedure.  The Charging Party did not become aware of the existance of
 the grievance until after the written decision was issued and the time
 limits for moving the grievance to the second step had elapsed.
 
    The Respondent did not provide the Charging Party with notice that
 the grievance was filed or with copies of the grievance, or its written
 decision on the grievance.  The Charging Party did not request, at any
 time, copies of documents from the Respondent relating to the processing
 of the grievance.
 
    III.  Positions of the Parties
 
    The Respondent argues that there is no requirement in section
 7121(b)(3)(B) or the negotiated agreement to notify the Union when a
 bargaining unit employee files a grievance on his/her own behalf citing
 Department of the Air Force, Lowry Air Force Base, Denver, Colorado, 17
 FLRA 469 (1985) and Office of Program Operations, Field Operations,
 Social Security Administration, San Francisco Region, 10 FLRA 172
 (1982).  It asserts that a union's right under section 7121(b)(3)(B) "to
 be present during the grievance proceeding" applies only when ther is an
 obligation to give notice under section 7114(a)(2)(A).  It reasons that
 if there is no formal discussion of the grievance with the employee,
 then there is no obligation under section 7121(b)(3)(B) to give notice
 to a union that a grievance has been filed or to provide a union with
 the opportunity to be present during the grievance proceeding.
 
    The General Counsel states that "(t)he central issue in this case is
 the right of the exclusive representative to be notified of an employee
 filed grievance, where no face-to-face meetings are conducted by
 Respondent with the employee-grievant." Brief at 5.  It contends the
 legislative history of section 7121(b)(3)(B) indicates that Congress
 intended a union to be present at all stages of the grievance proceeding
 because it specifically rejected language limiting a union's role to the
 adjustment stage of the grievance proceeding.  It notes that the Senate
 bill contained the same language as section 13(a) of Executive Order
 11491 -- "an opportunity to be present at the adjustment" -- while the
 House bill contained the language which was ultimately enacted -- "the
 right to be present during the grievance proceeding."
 
    The General Counsel argues that if a union's right to be present
 during the grievance proceeding was limited to grievance proceedings
 involving formal discussions with the grievant, a union would be
 prevented from protecting the interests of other bargaining unit
 employees and its interests.  To protect these interests, a union under
 section 7121(b)(3)(B) is entitled to be notified of the grievance and be
 given copies of all documents relating to the grievance.
 
    Finally, the General Counsel argues that the Authority's holding in
 Lowry Air Force Base is not controlling in the present case because of
 factual differences in the negotiated grievance procedures.  That is,
 the General Counsel argues that in the present case the negotiated
 argeement incorporates the exact language of section 7121(b)(3)(B)
 whereas the Lowry Air Force Base the negotiated agreement contained
 language limited the unionS opportunity to be present during the
 grievance proceeding.
 
    IV.  Conclusion and Analysis
 
    Section 7121(b)(3)(B) carries with it an implied right of a union,
 unless clearly and unmistakably waived, to be notified by an agency when
 a grievance is presented by the employee on the employee's own behalf
 and to be provided upon request with documents relating to the grievance
 to the extent that such disclosure is consistent with law.  There was no
 clear and unmistakable waiver by the Union of its right to be notified
 of the grievance in this case.  Thus, we find that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by not providing the
 Charging Party with notice that a bargaining unit employee filed a
 grievance on his own behalf.  However, since the Charging Party never
 requested to be provided with copies of documents relating to the
 grievance, no basis is shown for violations premised on the failure to
 provide the Charging Party with copies of such documents relating to the
 grievance.
 
    1.  A union's "right to be present during the grievance proceeding"
 is not limited to grievance proceedings involving formal discussions.
 
    The legislative history of section 7121(b)(3)(pb) shows that the
 Senate bill contained the same language as section 13(a) of Executive
 Order 11491 -- "an opportunity to be present at the adjustment" -- while
 the House bill contained the language which was ultimately enacted --
 "the right to be present during the grievance proceeding." /*/ The
 legislative history does not address whether Congress intended the
 section to apply to grievance proceedings where the grievance is
 processed without holding any discussions.  Nor does it provide any
 insight as to why "right to be present during the grievance proceeding"
 replaced "opportunity to be present at the adjustment" or the meaning of
 "proceeding".  In common use, the word "proceeding" has a broader
 meaining than "adjustment".  Proceeding is defined as "a particular step
 or series of steps adopted for doing or accomplishing something";
 whereas adjustment is "a satisfactory or desirable solution or
 arrangement." Webster's Third New International Dictionary 1807, 27 (3rd
 ed. 1976).
 
    The Authority has found that when sections 7114(a)(2)(A) and
 7121(b)(3)(B) are read together it is clear Congress intended that
 negotiated grievance procedures assure the exclusive representative the
 right to be present (represented) during formal discussions of a
 grievance.  Office of Program Operations, 10 FLRA at 177.  We agree with
 the General Counsel that if the Union's right to be present during a
 grievance proceeding applies only when formal discussions of a grievance
 occur, then that right would be rendered meaningless because it would
 apply only in situations when the Union already has a right to be
 represented.  To hold otherwise would encourage an agency to circumvent
 a union's role in administering the terms of the negotiated agreement by
 handling grievances, presented by an employee on the employee's own
 behalf, entirely through correspondence.
 
    2.  An agency has an obligation to notify a union when an employee
 presents a grievance on the employee's own behalf and to provide a union
 with documents relating to the grievance upon request.
 
    In Lowry Air Force Base, relied on by the Respondent, the Authority
 adopted without comment the Administrative Law Judge's conclusions that
 section 7121(b)(3)(B):  (1) requires only that a negotiated grievance
 procedure assure the exclusive representative the right to be present
 during the grievance proceeding;  and (2) does not "impose any duty to
 serve the Union with a copy of any document, including the grievance,
 filed by the employees or issued by the (agency), but the tenor of the
 Statute is to the effect that the duty of an agency to furnish material
 to the exclusive representative is upon request." Lowry Air Force Base
 at 477-78.  In that case the agency conceded an obligation to give
 notice to the union of a formal discussion of a grievance where the
 negotiated grievance procedure so provided.  Id. at 483
 
    In our view, the "right to be present during the grievance
 proceeding" in section 7121(b)(3)(B) includes an implied right of a
 union, unless clearly and unmistakably waived, to be notified when a
 grievance is filed by an employee on the employee's own behalf and to be
 timely served upon request with copies of all documents relating to the
 grievance to the extent that such disclosure is consistent with law.  We
 think this right to notice and upon request, copies of documents is
 necessary to assure that the union's right to be present is not
 illusory.  For example, to the extent that management chooses to process
 a grievance presented by an employee on the employee's own behalf
 through correspondence, the only way for a union to be "present during
 the grievance proceeding" would be for the union to receive notice that
 the grievance has been filed and, upon request, to receive documents
 relating to the grievance as it progresses through the negotaiated
 grievance procedure.
 
    The two parts of section 7121(b)(3)(B) when read together complement
 each other by balancing the rights of the employee and the union.  The
 first part assures an employee of the right to present a grievance
 without union representation while the second part assures the union of
 the right to be "present" during such a proceeding, even insofar as it
 consists only of exchanges of documents, to protect the interests of
 other bargaining unit employees and its institutional interests.  We
 believe that applying section 7121(b)(3)(B) in this manner will promote
 uniformity in contract administration and will assure the union of its
 right to represent bargaining unit employees consistent with its
 obligation under the Statute.  To the extent that the Lowry Air Force
 Base decision is inconsistent with this holding, it will no longer be
 followed.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, it is
 ordered that the Social Security Administration shall:
 
    1.  Cease and desist from:
 
    (a) Failing to notify the American Federation of Government
 Employees, Council 215 when a bargaining unit employee presents a
 grievance on the employee's own behalf.
 
    (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:
 
    (a) Post at its 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 the Commissioner and shall be posted
 and maintained for 60 consecutive days thereafter, in conspicuous
 places, including bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken by
 the Social Security Administration to ensure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (b) 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 of the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C. February 5, 1987.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       Federal Labor Relations Authority
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) S. 2640, 95th Cong., 2d. Sess. 206 (1978);  Legislative History
 of the Federal Service Labor-Management Relations Statute, Title VII of
 the Civil Service Reform Act of 1978 at 592 and H.R. 11280, 124 Cong.
 Rec. H9699 (daily ed. Sept. 13, 1978);  Legislative History at 978.
 
 
 
 
 
 
 
                          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 fail to notify the American Federation of Government
 Employees, Council 215 when a bargaining unit employee presents a
 grievance on the employee's own behalf.
 
    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
 Statute.
                                       (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 ohter
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate dircetly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  P.O. Box 33758, 1111 18th Street, NW., Room 700, Washington, D.C.
 20033-0758, and whose telephone number is:  (