26:0865(102)CA - HHS, SSA, and AFGE -- 1987 FLRAdec CA

 26 FLRA No. 102
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL 
 SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO 
 Charging Party
 
                                            Case No. 3-CA-50448
 
                          DECISION AND ORDER /1/
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's Decision filed by the
 Respondent, Department of Health and Human Services, Social Security
 Administration.  The issue is whether the unilateral implementation of
 an "EEO Early Settlement Demonstration Project" (ESDP) by the Respondent
 was a unilateral change in conditions of employment of unit employees
 and therefore violated section 7116(a)(1) and (5) of the Federal
 Labor-Management Relations Statute (the Statute).  The Judge found a
 violation based on his conclusion that the ESDP was a condition of
 employment, rejecting various defenses of the Respondent.
 
                              II.  Background
 
    As noted in detail by the Judge, (pp. 2-3) the ESDP was to be an
 attempt to resolve EEO complaints prior to invocation of Social Security
 Administration's (SSA) formal EEO investigatory procedures.  It was a
 pilot project which implemented for the first time a formally structured
 settlement procedure prior to formal investigation of an employee's EEO
 complaint.
 
    The project was presented to the Union by letter dated December 20,
 1984, "for informational purposes only,".  The Union requested
 bargaining, which was declined by the SSA.  SSA asserted that the ESDP
 did not conflict with the parties' collective bargaining agreement
 (which provided, among other things, that employees have the option of
 using the negotiated grievance procedure or the Agency EEO procedure,
 but not both) because it affected only the employees electing to process
 an EEO complaint under the Agency EEO procedures, and in any event, the
 impact of the new program was de minimis.  SSA also presented revisions
 to the plan, outlined at p. 4 of the ALJ's Decision.  Along with the
 revisions, transmitted by letter of March 6, 1985, was notice of an
 implementation date of March 25, 1985, and a request for "substantive
 proposals or comments" as soon as possible.
 
    On March 15, 1985, the Union submitted proposed ground rules.  On the
 same day, the Respondent told the Union's representative that it would
 not negotiate over the project.  Thereafter, without further notice or
 bargaining, the pilot project was revised again and implemented in July,
 1985.
 
    The collective bargaining agreement provides for reasonable notice of
 a change affecting conditions of employment, and for the Union to submit
 written proposals within a reasonable period after notice of the
 proposed charge, to be followed by bargaining within ten working days.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that the ESDP and the achievement of its goals are
 terms and conditions of employment within the meaning of the Statute.
 He noted that the project was an attempt to get more voluntary
 settlements of EEO disputes when employees elect the agency EEO
 procedure, and that it is a mandatory settlement program if the Agency
 EEO procedure is elected.
 
          Although the ESDP was part of the formal EEO complaint process,
       it was not mandated by any EEOC regulations nor was it ordered or
       required by any EEOC or the Civil Rights Act.  Thus the
       institution of the ESDP was the type of change in the EEO program
       and its method of enforcement, that required notice to AFGE so
       that it could bargain about the substance of the change, as well
       as its impact and implementation.
 
    The Judge also rejected the Respondent's defenses that (1) because
 the project is a program of the Agency, the Department of Health and
 Human Services, it did not have the authority to bargain over the
 substance of the program;  (2) the Union waived its right to bargain and
 (3) the ESDP would have only a de minimis effect on unit employees and
 thus would be nonnegotiable.  Therefore, the Judge found that the
 unilateral implementation of the ESDP, without negotiating the
 substance, impact, and implementation of the project, violated section
 7116(a)(1) and (5) of the Statute as alleged.  As a remedy, he
 recommended that the Respondent be required to cease and desist from the
 unfair labor practices as well as restoring the status quo ante by
 repealing the ESDP and bargaining about any new settlement programs, the
 appropriate procedures to be observed in implementating any such new
 programs and over appropriate arrangements for any employees adversely
 affected.
 
                       IV.  Positions of the Parties
 
    In its exceptions, the Respondent reiterates its main argument that
 the ESDP is not a condition of employment within the meaning of the
 Statute, but rather is part of a statutory procedure covered by the
 Civil Rights Act.  It also argues again that even if the ESDP is a term
 and condition of employment subject to the duty to bargain, the program
 was required by higher agency authority, and that the Union waived any
 right to bargain by not making a timely proposal.  Further, the
 Respondent argues that it should not be ordered to rescind the program
 because it is "solely under the control" of the Agency, and the
 Respondent has not authority to repeal it.  Finally, as the Respondent
 asserts that it was directed to implement the project by the Agency, the
 Respondent is restricted to bargaining on the impact and implementation
 of the ESDP if the Authority finds a duty to bargain.
 
    The General Counsel filed no exceptions.
 
                       V.  Analysis and Conclusions
 
    The basic question is whether the ESDP was a condition of employment
 within the meaning of the Statute.  In agreement with the Judge, we
 conclude that it was.  Just as we found an agency administrative
 grievance procedure to be a condition of employment, /2/ the Early
 Settlement Demonstration Project also was a personnel matter or practice
 established by rule or reulgation -- not the EEOC or the Civil Rights
 Act -- for resolving disputes affecting employee working conditions.
 Thus, the ESDP falls within the definition of conditions of employment
 in section 7103(a)(14) of the Statute.  /3/ As noted by the Judge this
 demonstration project was not mandated by any EEO regulation, nor was it
 ordered or required by the EEOC or the Civil Rights Act.  Thus this was
 not part of a statutory procedure mandated by the Civil Rights Act.
 This differs from some EEO matters, where a Union would have no rights.
 For example, we have found that an exclusive representative does not
 have the right to be present during any stages of presentation of an EEO
 complaint unless the exclusive representative has been chosen by the
 complainant as his representative.  U.S. Government Printing Office, 23
 FLRA No. 6 (1986).
 
    Having found that the ESDP was a condition of employment, we reject
 the defenses raised by the Respondent for the reasons expressed by the
 Judge.
 
                                   ORDER
 
    The Department of Health and Human Services, Social Security
 Administration shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to bargain with American Federation of
 Government Employees, AFL-CIO, the collective bargaining representative
 of its employees, concerning any new settlement projects in the EEO
 program, the procedures to be observed in implementing any such new
 program, and appropriate arrangements for any employees adversely
 affectedly by any such new 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) Upon request of American Federation of Government Employees,
 AFL-CIO, the collective bargaining representative of its employees,
 repeal the EEO Early Settlement Demonstration Project in the
 Baltimore-Washington area and bargain with American Federation of
 Government Employees, AFL-CIO, concerning appropriate arrangements for
 any employees who had been adversely affected by the institution of the
 EEO Early Settlement Demonstration Project.
 
    (b) Upon request bargain with American Federation of Government
 Employees, AFL-CIO, about any new settlement program in the EEO program,
 the procedures to be observed in implementing any such new programs, and
 appropriate arrangements for any employees adversely affected by any
 such new programs.
 
    (c) Post in its Baltimore-Washington area 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 of Social Security, 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 materials.
 
    (d) 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.
 
    Issued, Washington, D.C., April 30, 1987.
 
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                   Separate Opinion of Chairman Calhoun
 
    I believe that the specific procedures to be used in the
 investigation and resolution of formal complaints of discrimination
 filed under 29 C.F.R. part 1613 are outside an agency's duty to bargain
 under the Federal Service Labor-Management Relations Statute.  Therefore
 I believe the Complaint should be dismissed.
 
    In providing avenues for adjudication of claims of discrimination
 under the various Federal Civil Rights Statutes, Congress has created
 two distinct processes of dispute resolution.  With respect to one --
 the negotiated grievance procedure -- the role of the Union is primary
 and fundamental.  Under 5 U.S.C. Section 7121, Unions are given wide
 latitude to negotiate grievance procedures which provide for binding
 resolution of disputes, including matters which may also be litigable
 under formal EEO complaint procedures.  On the other hand, the Statute
 also makes clear that once an employee elects to exercise the option of
 invoking a statutory or regulatory appeal process in lieu of the
 negotiated procedures, that election is binding.  See 5 U.S.C. Section
 7121(d).  Once the employee has so elected, the role, rights, and
 responsibilities of the Union as an entity differ markedly.  Compare
 SSA, Office of Hearings and Appeals, 25 FLRA No. 43 (1987) (Union has a
 right to be "present", and hence notified of a grievance even when the
 Union is not the designated representative);  and U.S. Government
 Printing Office, 23 FLRA No. 6 (1986) (settlement of EEO complaint not a
 "formal discussion" requiring Union presence).  The specific procedures
 used to resolve formal complaints of discrimination are a "condition of
 employment" to bargaining unit employees only to the extent that they
 choose to make them such.  To me, that distinguishes the instant case
 from the line of Authority precedent cited in the Judge's decision, a
 line of precedent which I do not contend should be overturned.
 
    The cases cited in the text on page 6 of the Judge's decision
 considered Union participation in the development or implementation of
 affirmative action plans or objectives.  The effect of such actions by
 an Agency has universal impact on bargaining unit employees and this
 effect is not tempered by an election by the employee(s) to participate
 or not participate in the program.  Accordingly, I do not find them
 dispositive of the instant case.
 
    More on point, in my view, is Portsmouth Naval Shipyard and
 Department of the Navy (Washington, D.C.), 23 FLRA No. 68 (1986), a
 decision which is relied on by the Judge and the majority.  In that case
 we found that denial of access to an agency's administrative grievance
 procedure solely on the basis of an employee's status as a member of a
 bargaining unit would reasonably be expected to interfere, restrain, or
 coerce employees from engaging in collective bargaining in violation of
 5 U.S.C. Section 7116(a)(1).  In the instant case there is no evidence
 that implementation of the ESDP procedure discriminates in any way
 between represented and unrepresented employees.  Represented employees
 are not restricted in their access to the EEO complaint resolution
 procedure.  Again I stress the fact that the procedure does not come
 into play until after a formal EEO complaint is filed and a binding
 election to utilize the EEO process and forego the Union's negotiated
 grievance procedure has been made.
 
    While I agree with the Judge's factual conclusion that the ESDP is
 not mandated by the Equal Employment Opportunity Commission regulations
 concerning complaint processing, I am persuaded that to the extent such
 a procedure is permissible under those regulations, it grows out of them
 and should be deemed part of a statutory appeal process unrelated to the
 Union's role as exclusive representative.  Accordingly, in my view, it
 is not the type of "condition of employment" over which Congress
 envisioned collective bargaining to take place.  /4/
 
    Issued, Washingtion, D.C., April 30, 1987
 
                                       /s/ Jerry L. Calhoun, Chairman
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE
 
                      WE NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to bargain with American Federation of
 Government Employees, AFL-CIO, the collective bargaining representative
 of our employees, concerning any new settlement projects in the EEO
 program, concerning the procedures to be observed in implementing any
 such new program and over appropriate arrangements for any employees
 adversely affectedly by any such new 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 upon request of American Federation of Government Employees,
 AFL-CIO, the collective bargaining representative of our employees,
 repeal the EEO Early Settlement Demonstration Project in the
 Baltimore-Washington area and bargain with American Federation of
 Government Employees, AFL-CIO, concerning appropriate arrangements for
 any employees who had been adversely affected by the institution of the
 "EEO Early Settlement Demonstration Project."
 
    WE WILL upon request bargain with American Federation of Government
 Employees, AFL-CIO, about any new settlement programs in the EEO
 program, concerning the procedures to be observed in implementing any
 such new programs and over appropriate arrangements for any employees
 adversely affected by any such new programs.
                                       . . . (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 questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region III of the Federal Labor Relations Authority,
 whose address is 1111 18th Street, N.W., Washington, D.C.  20033-0758,
 and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-50448
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION
    Respondent
 
 
                                    and
 
 AMERICAN FEDERAL OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
    Charging Party
 
    Irving Becker, Esquire
    For the Respondent
 
    Barry Nelson
    For the Charging Party
 
    Carolyn J. Dixon, Esquire
    For the General Counsel of FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et. seq., 92 Stat. 1191 (hereinafter referred to as the
 Statute), and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et. seq.
 
    Pursuant to a charge filed on August 1, 1985 by American Federation
 of Government Employees, AFL-CIO, hereinafter called AFGE and the Union,
 against Department of Health and Human Services, Social Security
 Administration, hereinafter called SSA, the General Counsel of the FLRA,
 by the Director of Region III, issued a Complaint and Notice of Hearing
 on January 31, 1986 alleging that SSA violated Sections 7116(a)(1) and
 (5) of the Statute by implementing an "EEO Early Settlement
 Demonstration Project" /5/ and by refusing to bargain over the
 substance, impact and procedures for implementation of the ESDP.  SSA
 filed an Answer denying that it had violated the Statute.
 
    A hearing was conducted before the undersigned in Baltimore,
 Maryland.  SSA, AFGE and General Counsel of the FLRA 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 fully considered.
 
    Based on the entire record in this matter, my observation of the
 witnesses and their demeanor, and my evaluation of the record I make the
 following:
 
                             FINDINGS of FACT
 
    At all times material herein AFGE has been the collective bargaining
 representatives for a nationwide unit of SSA employees.  Further, at all
 material times SSA and AFGE have been parties to a collective bargaining
 agreement covering this nationwide unit.
 
    By letter dated December 20, 1984, SSA informed the Union of a pilot
 project entitled "EEO Early Settlement Demonstration Project." This
 pilot project is an attempt to resolve employee EEO complaints prior to
 the invocation of SSA's formal EEO investigatory procedures.  The pilot
 project implemented for the first time a formally structured settlement
 procedure prior to formal investigation of an employee's EEO complaint.
 Under the ESDP, all employee EEO complaints, except those alleging
 failure to hire, failure to promote or discriminatory discharge, would
 be included in this mandatory settlement procedure.  An official called
 a convenor would be appointed to gather certain information considered
 relevant to the allegations in the complaint.  The convenor prepares a
 summary of this information and presents it at a fact finding conference
 to the employee complainant and management official representing SSA.
 The employee complainant may have a representative present at this fact
 finding conference but the representative's participation is limited
 solely to advising the complainant.  The representative could not argue,
 present or advance the employee complainant's case to either management
 official.  If agreement is reached by the parties, a no-fault settlement
 is executed.  If no agreement is reached, the convenor completes a
 formal summary of the information gathered during the process and places
 it in the investigative file.  Absent settlement under this new
 procedure, the convenor reviews the file and determines if it is
 complete, in order for a decision to issue on the merits of the
 Complaint.  If the convenor determines the file is complete, the
 convenor prepares a recommendation on the complaint, called a Proposed
 Disposition, and forwards the recommendation to agency officials for
 further action.  If the convenor determines that a Proposed Disposition
 is not warranted or if the official rejects the convenor's
 recommendation, the complaint will be assigned to an investigator for
 completion of the investigation and subsequent processing in accordance
 with EEOC and SSA regulations.  /6/ At no time during the process is the
 complainant or his representative allowed to review the investigative
 file developed by the convenor.
 
    A copy of this proposed pilot project was enclosed with SSA's letter
 to AFGE dated December 20, 1984.  SSA specifically stated in its letter
 to AFGE that a copy of the ESDP was being provided to AFGE "for
 informational purposes only." SSA further stated that the ESDP does not
 conflict with the parties' collective bargaining agreement as it affects
 only those employees electing to process an EEO complaint through the
 SSA's EEO procedures and not those employees electing to process an EEO
 complaint through the negotiated grievance procedure.  /7/ Union
 bargaining proposals were neither requested nor invited.
 
    AFGE responded in a letter dated December 27, 1984.  It requested
 bargaining and designated John Gage, President of AFGE Local 1923 as its
 negotiator.  Thereafter, in a letter dated March 6, 1985, SSA replied to
 the AFGE's request and stated that the latter's bargaining demand was
 improper.  SSA asserted that the ESDP did not conflict with the
 collective bargaining agreement because it affected only those employees
 electing to process an EEO complaint under the agency's EEO procedures
 and the impact of the new program was "de minimis".  SSA also enclosed a
 revised version of the ESDP which changed the original version in
 several respects.  Under the revised version, all employee EEO
 complaints filed under the agency's EEO complaint procedures in the
 Baltimore-Washington area would be subject to this mandatory settlement
 procedure without exception.  In addition, the revised version of the
 ESDP provided that the convenor alone would decide whether, based on his
 preliminary inquiry, the employee's EEO complaint would be referred for
 further investigation or treated in the pilot project.  A section
 defining the powers of the convenor to examine witnesses and prohibit
 cross-examination of witnesses was also added.
 
    SSA's letter of March 6, 1985, to the Union enclosing the revised
 version of the pilot project advised of a March 25, 1985, implementation
 date.  SSA closed its March 6, 1985, letter with a request for
 "substantive proposals or comments" as soon as possible.
 
    On March 15, 1985, before the proposed implmentation date, the AFGE
 submitted a one-page proposed Memo of Understanding of basic ground
 rules and indicated its availability to commence negotiations
 immediately.  However, that same day Nelson Sabatini, SSA's Associate
 Commissioner of Office of Management, Budget and Assessment, told AFGE
 representative John Gage that SSA would not negotiate over the EEO pilot
 project.
 
    Thereafter, without any further notice or bargaining with the Union,
 the subject pilot project was again revised by SSA and was implemented
 in July 1985.
 
    Article 4 Section 1 of the collective bargaining agreement provides:
 
          "Section 1 -- General
 
          "The Administration will provide the Union reasonable advance
       notice prior to implementation of changes affecting conditions of
       employment subject to bargaining under 5 USC 71.  Upon notice from
       the Administration of a proposed change, the designated union
       representative will notify the designated management
       representative of its desire to consult and/or negotiate on the
       change.
 
          "The Union will submit written proposals if applicable within a
       reasonable period after notice of the proposed change.  Bargaining
       will begin as soon as possible, and will not exceed ten (10)
       working days.  All issues not resolved at that time may be
       referred to the Federal Service Impasses Panel for resolution
       under its rules."
 
                     Discussion and Conclusions of Law
 
    General Counsel of the FLRA contends that SSA violated Sections
 7116(a)(1) and (5) of the Statute by implementing the EEO Early
 Settlement Demonstration Project without prior bargaining with AFGE over
 the substance, impact and implementation of the project.
 
    SSA contends it did not violate the Statute because it has no duty to
 bargain about any aspect of the ESDP because it is not a term and
 condition of employment as defined by the Statute, SSA did not submit
 substantive proposals as required by its collective bargaining
 agreement, and the ESDP was not initiated by SSA on its own discretion
 but rather by direction of Department of Health and Human Services
 (DHHS).
 
    Title VII of the Civil Rights Act of 1964, was amended in 1972 to
 apply to Federal Civilian employement.  /8/ As the general administrator
 of the Federal EEO Program, the Equal Employment Opportunity Commission
 (EEOC) has issued a set of comprehensive regulations concerning the
 processing of EEO complaints by each Federal executive branch agency.
 /9/ Pursuant to the EEOC regulations, each agency is required to issue
 regulations establishing an internal complaint processing system
 consistent with EEOC regulations.  /10/
 
    Pursuant to section 7121 of the Statute, negotiated grievance
 procedures may cover matters otherwise covered by the statutory EEO
 procedure.  Thus, unless specifically excluded as provided for under
 section 7121(a)(2) of the Statute, section 7121(d) of the Statute
 provides that an employee covered by a negotiated grievance procedure
 can pursue a discrimination complaint under either an agency's internal
 EEO procedure or the negotiated grievance procedure, but not both.
 
    The FLRA has held that matters related to discrimination in
 employment are terms and conditions of employment and hence negotiable
 under Section 7117 of the Statute.  American Federation of Government
 Employees, AFL-CIO and Air Force Logistics, 2 FLRA 604 (1980).  /11/ In
 this case the FLRA held that two union proposals requiring the
 establishment of plans and programs to attain EEO objectives and to
 establish guidelines for affirmative action plans were negotiable.  The
 FLRA held that Congress intended to include matters related to
 discrimination in employment within the duty to bargain.  Further the
 FLRA held in Library of Congress, 9 FLRA 421 (1982) and Library of
 Congress, 9 FLRA 427 (1982) that an agency violated the Statute when it
 unilaterally changed affirmative action plans without first affording an
 exclusive collective bargaining representative an opportunity to bargain
 over the changes.
 
    The cases relied upon by SSA are inapposite.  They deal with whether
 the EEOC procedure, or other statutory appeals, are grievances within
 the meaning of Section 7114(a)(2)(A) of the Statute.  /12/ No contention
 is made herein that the ESDP is a grievance within the meaning of the
 Statute.  Rather it is alleged, and I find, that the EEO program and the
 achievement of its goals are terms and conditions of employment and are
 negotiable, within its statutory limitations, and thus, so are the
 discretionary programs for accomplishing the aims of the EEO program.
 In this regard I note the FLRA, in an analogous situation held that an
 agency's administrative grievance procedure is a term and condition of
 employment.  Portsmouth Naval Shipyard and Department of the Navy, 23
 FLRA No. 68 (1986) at page 6.
 
    In the subject case the changes which SSA implemented involved
 establishing, on an experimental basis, a settlement program in an
 attempt to get more voluntary settlements of EEO disputes when employees
 use the SSA EEO procedure, as distinguished from the contractual
 grievance procedure.  Thus ESDP is a mandatory settlement program in
 which the employee must participate if he chooses to pursue SSA's
 internal EEO complaint procedures.  Although the ESDP was part of the
 formal EEO complaint process it was not mandated by any EEOC regulations
 nor was it ordered or required by the EEOC or the Civil Rights Act.
 Thus the institution of the ESDP was the of type change in the EEO
 program and its method of enforcement, that required notice to AFGE so
 that it could bargain about the substance of the change, as well as its
 impact and implementation.
 
    SSA contends that it could not bargain about the institution of the
 ESDP because the ESDP is a DHHS program that SSA was ordered to
 institute by DHHS.  Accordingly, SSA contends it did not have the
 authority to bargain about the substance of the program.  SSA's
 contention is rejected because it is not supported by the record.  The
 record does not establish that DHHS forebade SSA from bargaining about
 the establishment of the ESDP.  In this regard I note that SSA's own
 witness testified that the Health Care Finance Administration did not
 institute the ESDP because "they have a question regarding
 negotiations." The evidence submitted does not establish that this
 otherwise bargainable subject was somehow exempted from this obligation
 by DHHS having ordered it or forbidden bargaining at the local level,
 nor was there any contention or proof that there was any compelling need
 for any such exemption.  Thus, absent evidence to the contrary, it must
 be assumed that SSA, a component of DHHS, could bargain about the
 substance of the ESDP.  See Department of the Interior, Water and Power
 Resources Service, Grand Coulee Project, 9 FLRA 385 (1982) and
 Department of Health and Human Services, Office of the Secretary,
 Headquarters, 20 FLRA 175 (1985).
 
    Finally I find SSA's contention that AFGE forfeited its bargaining
 rights by not submitting proposals after being requested to do so to be
 without merit.  In this regard I note that SSA's first notification to
 AFGE of the ESDP was for informational purposes only.  Further, SSA
 stated that AFGE's bargaining demand was improper and SSA's agent
 advised an AFGE official on March 15, 1985 that SSA would not bargain
 over the ESDP.  In its March 6, 1985 letter SSA stated that "We do not
 feel your request to bargain on the subject pilot project is proper . .
 . the project does not conflict with terms of the existing agreement . .
 . ." The letter then pointed out some new changes in the ESDP and stated
 "At this time we plan to implement the project on March 25, 1985.  If
 you have any substantive proposals or comments, we would like to receive
 them as soon as possible." Thus SSA clearly stated the ESDP was not
 negotiable and it was to be implemented on March 25.  The reuqest for
 "substantive proposals", in this context, was clearly not an invitation
 to bargain.  On the contrary, SSA specifically said that it was not a
 bargainable matter.  Its invitation for "substantive proposals", was
 just that, an invitation for proposals, which SSA was free to consider
 and either reject or accept, but not bargain about.  It was in effect an
 invitation for suggestions, not negotiations.  In these circumstances I
 need not determine whether Article 4 Section 1 requires AFGE to make
 substantive proposals in writing, concerning mid-term bargaining.  SSA
 made its position clear that the ESDP was not bargainable and at that
 time it violated the Statute.  AFGE was not required to engage in some
 empty and meaningless act in order to perfect its right.  See U.S.
 Customs Service, 18 FLRA 263 (1985).  In this regard I note further that
 SSA kept changing the ESDP until it was actually put into effect.
 
    Finally SSA urges that the ESDP would only have a de minimis effect
 on the unit employees and therefore is nonnegotiable.  I reject this
 defense because the de minimis considerations are not defenses when the
 change in question, like the ESDP, involves a change which itself is
 substantively bargainable.  See U.S. Army Reserve Components, Personnel
 and Administrative Center, St. Louis, Missouri, 19 FLRA 290 (1985).
 /13/
 
    In light of the foregoing I conclude SSA violated Sections 7116(a)(1)
 and (5) of the Statute by unilaterally instituting the ESDP and refusing
 to bargain with AFGE concerning the substantive terms of the ESDP,
 concerning the procedures to be observed for implementing the ESDP and
 concerning appropriate arrangements for any employees adversely affected
 by the change.  I conclude that a status quo remedy for SSA's violation
 of the Statute, at the request of AFGE, is most appropriate for putting
 the parties in a position to meaningfully bargain about the ESDP.  Cf.
 Long Beach Naval Shipyard, Long Beach, California, 17 FLRA 511 (1985).
 
    Having found and concluded that SSA violated Sections 7116(a)(1) and
 (5) of the Statute, I recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 the Department of Health and Human Services, Social Security
 Administration shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to bargain with American Federation of
       Government Employees, AFL-CIO, the collective bargaining
       representative of its employees, concerning any new settlement
       projects in the EEO program, concerning the procedures to be
       observed in implementing any such new program and over appropriate
       arrangements for any employees adversely affectedly by any such
       new 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) Upon request of American Federaion of Government Employees,
       AFL-CIO, the collective bargaining representative of its
       employees, repeal the EEO Early Settlement Demonstration Project
       in the Baltimore-Washington area and bargain with American
       Federation of Government Employees, AFL-CIO, concerning
       appropriate arrangements for any employees who had been adversely
       affected by the institution of the "EEO Early Settlement
       Demonstration Project."
 
          (b) Upon request bargain with American Federation of Government
       Employees, AFL-CIO, about any new settlement programs in the EEO
       program, concerning the procedures to be observed in implementing
       any such new programs and over appropriate arrangements for any
       employees adversely affected by any such new program.
 
          (c) Post in its Baltimore-Washingtion area 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 a responsible official, 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.
 
          (d) 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.
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  October 10, 1986
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun dissents for the reasons stated in his separate
 opinion.
 
    (2) Portsmouth Naval Shipyard and Department of the Navy (Washington,
 D.C.), 23 FLRA No. 68 (1986).
 
    (3) Section 7103(a)(14) provides, in pertinent part:
 
          (14) "conditions of employment" means personnel policies,
       practices, and matters, whether established by rule, regulation,
       or otherwise, affecting working conditions . . .
 
    (4) I note that the Agency's March 6, 1985, letter to the Union
 solicited input concerning the ESDP project.  The Union demanded
 bargaining.  While I do not find a duty to bargain in this case, I do
 applaud the Agency's apparent willingness to confer with the Union on
 the subject.  The action evidences recognition of the desirability of
 bilateral discussions and comports favorably with the provisions of 5
 U.S.C. Section 7113(b) concerning national consultation rights.
 
    (5) Hereinafter called the ESDP.
 
    (6) There are no time frames built into this the ESDP.
 
    (7) Article 18, Section 5B of the parties' negotiated agreement
 provides as follows:
 
    An employee has the option of filing a complaint under the negotiated
 grievance procedure (Article 24) or under the agency EEO complaint
 procedure, but not both.
 
    (8) 42 U.S.C. 2000(e) et seq.  Hereinafter referred to as the Civil
 Rights Act.
 
    (9) 29 CRF Part 1613.
 
    (10) 29 CFR Part 1613.211 through 222.
 
    (11) Enforced as to other matters sub nom. Department of Defense v.
 FLRA, 659 F2d. 1140 (D.C. Cir. 1981), cert. denied sub nom. Aamerican
 Federation of Government Employees v. FLRA, 455 U.S. 945 (1982).
 
    (12) SSA cited and relied upon Internal Revenue Service, Fresno,
 California v. FLRA, 706 F.2d 1019 (9th Cir. 1983);  General Printing
 Office, 17 FLRA 254 (1985);  SSA and SSA Field Operations, New York
 Region, 16 FLRA 1021 (1984);  Harry S. Truman Memorial Veterans
 Hospital, Columbia, MO, 16 FLRA 1049 (1984).
 
    (13) If the FLRA were to determine that there is no bargaining
 obligation concerning the substance of the ESDP, I would conclude its
 impact would be more than de minimis.  Thus I note it is a mandatory
 procedure applicable to all SSA employees, including unit employees, in
 the Baltimore-Washington area, who invoke SSA's EEO complaint procedure.
  It's foreseeable impact involve the lack of time limits in the ESDP,
 the rights of employees to representation during the ESDP, the use that
 could be made of any statements or evidence obtained during the ESDP,
 etc.  These clearly are of concern to employees and are more than de
 minimis.
 
 
 
 
 
 
                          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 fail and refuse to bargain with American Federation of
 Government Employees, AFL-CIO, the collective bargaining representative
 of our employees, concerning any new settlement projects in the EEO
 program, concerning the procedures to be observed in implementing any
 such new program and over appropriate arrangements for any employees
 adversely affectedly by any such new 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 upon request of American Federation of Government Employees,
 AFL-CIO, the collective bargaining representative of our employees,
 repeal the EEO Early Settlement Demonstration Project in the
 Baltimore-Washington area and bargain with American Federation of
 Government Employees, AFL-CIO, concerning appropriate arrangements for
 any employees who had been adversely affected by the institution of the
 "EEO Early Settlement Demonstration Project."
 
    WE WILL upon request bargain with American Federation of Government
 Employees, AFL-CIO, about any new settlement programs in the EEO
 program, concerning the procedures to be observed in implementing any
 such new programs and over appropriate arrangements for any employees
 adversely affected by any such new programs.
                                       . . . (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 questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region III,
 whose address is:  1111 - 18th Street, 7th Floor, P.O. Box 33758,
 Washington, D.C.  20033-0758, and whose telephone number is:  (202)
 653-8500.