43:0549(49)CA - - HHS, SSA, Baltimore, MD and AFGE Local 3937 - - 1991 FLRAdec CA - - v43 p549
[ v43 p549 ]
The decision of the Authority follows:
43 FLRA No. 49
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3937, AFL-CIO
DECISION AND ORDER
December 19, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with the requirements of section 7114(b)(4) of the Statute when the Respondent failed and refused to provide the Union with certain requested performance appraisal information necessary for the processing of a grievance.
The Respondent admitted the factual allegations of the complaint, but contended that a memorandum of understanding (MOU) between the parties contained a waiver of the Union's right to file the unfair labor practice charge in this case. On the merits of the complaint's allegations, the Respondent contended that the requested information was not necessary and was not maintained in the regular course of business in the form requested, and that supplying the information would be burdensome.
Relying on Authority precedent, the Judge found that the MOU concerned a permissive subject of bargaining and that the MOU had properly been revoked by the Union, thus restoring the Union's right to file the unfair labor practice charge in this case. On the merits of the complaint's allegations, the Judge found that the requested information was normally maintained by the Respondent in the regular course of business, and was reasonably available and necessary for the processing of a grievance. The Judge concluded that the Respondent violated the Statute as alleged.
The Respondent's exceptions are limited to its disagreement with the Judge's conclusions as to the MOU. The Respondent argues that the MOU concerned a mandatory rather than a permissive subject of bargaining, and that the Union, therefore, could not properly revoke the MOU. Consequently, the Respondent argues, the MOU remained in force and precluded the Union from filing the unfair labor practice charge in this case.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Failing or refusing to furnish the American Federation of Government Employees, Local 3937, AFL-CIO (AFGE), the exclusive representative of its employees, all requested data that is reasonably available and necessary for it to properly perform its representational functions in connection with an employee grievance.
(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 Federal Service Labor-Management Relations Statute:
(a) Furnish AFGE the data, in summary form where agreed to by AFGE--(1) calls per hour for Teleservice Center Representatives at the Portland, Oregon Teleservice Center for the 1988-1989 appraisal year for Gate 10; (2) gate assignments of Teleservice Center Representatives for the 1988-1989 appraisal year; and (3) Teleservice Center Representatives' weekly work unit reports for the 1988-1989 appraisal year--which was requested in connection with the processing of an employee grievance.
(b) Upon request, provide to AFGE, the exclusive representative of its employees, all requested data which is reasonably available and necessary for AFGE to properly perform its representational functions in connection with employee grievances.
(c) Upon request of AFGE, reconsider the grievance for which the above data was requested in accordance with the negotiated grievance procedure, after having furnished such data to AFGE.
(d) Post at its offices where unit employees are employed 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 Manager of the Portland Teleservice Center, Portland, Oregon, 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 insure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, not