[ v46 p1404 ]
The decision of the Authority follows:
46 FLRA No. 135
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 220, AFL-CIO
DECISION AND ORDER
February 16, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to reopen negotiations on a Memorandum of Understanding (MOU) after the Union membership failed to ratify it. The Respondent filed exceptions to the Judge's decision. The General Counsel and the Charging Party filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that 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, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order as modified below.
As the Judge found, a union is entitled under the Statute to condition the execution of an agreement arrived at through collective bargaining upon ratification by its members provided: (1) the employer has notice of the ratification requirement and (2) there is no waiver of the right by the union. For example, Department of the Air Force, Griffiss Air Force Base, Rome, New York, 25 FLRA 579, 592 (1987).(1) We also agree with the Judge's conclusion that, in this case, the Respondent had notice that agreements with the Union were subject to ratification(2) and the Union did not waive its right.(3) Accordingly, by refusing to reopen negotiations over the MOU and by implementing the MOU that was rejected in the ratification vote, the Respondent violated section 7116(a)(1) and (5) of the Statute.(4)
II. Order (5)
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, shall:
1. Cease and desist from:
(a) Refusing to reopen negotiations, upon request of the American Federation of Government Employees, Council 220, AFL-CIO, the exclusive representative of certain of its employees, over the May 3, 1990, Memorandum of Understanding which was not ratified by the Union's membership.
(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 in order to effectuate the purposes and policies of the Statute:
(a) Rescind the May 3, 1990, MOU and make whole any employees who were adversely affected by its implementation.
(b) Post at its facilities where bargaining unit employees represented by the Union are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. On 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 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
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 refuse to reopen negotiations, upon request of the American Federation of Government Employees, Council 220,
AFL-CIO, the exclusive representative of certain of our employees, over the May 3, 1990, Memorandum of Understanding which was not ratified by the Union's membership.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the May 3, 1990, MOU and make whole any employees who were adversely affected by its implementation.
Date:__________ By: _____________________
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Washington Regional Office, whose address is: 1111 18th Street, NW, 7th Floor, P.O. Box 33758, Washington, D.C., 20033-0758 and whose telephone number is: (202) 653-8500.
(If blank, the decision does not have footnotes.)
1. We reject as speculative the Respondent's argument that allowing ratification of impact and implementation (I&I) agreements would be inconsistent with the requirement that the Statute be interpreted in a manner consistent with an effective and efficient Government. In this regard, although, according to the Respondent, it is party to "an unending parade of I&I agreements[,]" Exceptions at 13, the record reflects that, over a nearly 6-year period, the Union's membership failed to ratify only two agreements.
2. In addition to the Respondent's concession that its representatives received and were aware of a 1985 Union letter stating that the Union reserved the right to ratify agreements, Judge's Decision at 7-8, the record reflects that, in 1988, the Union notified the Respondent that its membership had voted to ratify a different MOU. G.C. Exh. 9.
3. The Respondent does not argue to the contrary. In this regard, the Respondent concedes that the Union did not waive its right during bargaining over the parties' national agreement and did not discuss the matter during bargaining over the disputed MOU. Exceptions at 18, 24-25; Transcript at 177-82. Moreover, we reject as misplaced the Respondent's argument that the Union had no right to ratify the MOU because the parties did not agree on ratification procedures. As noted previously, a union may condition execution of an agreement on ratification provided, as relevant here, the agency is notified of such condition. Here, the Respondent was so notified. As such, it was not necessary that ratification procedures be agreed upon.
4. The Respondent's argument that the Union's failure to ratify the MOU was of no effect because it occured subsequent to the Respondent's review and approval of the MOU under section 7114(c) of the Statute is misplaced. As the Union properly had conditioned execution of the MOU on ratification, the section 7114 review, which is triggered by execution of an agreement, was not effective. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 803 (1991) ("the date of execution that triggers the time limits for . . . review under section 7114(c)(2) relates to the date on which no further action is necessary to finalize a complete agreement[.]").
5. Consistent with the Authority's practice that remedial notices be signed by officials designated by the Authority rather than those determined by a respondent, we have eliminated the portion of the Judge's Order allowing the notice to be signed by "a designee" of the Commissioner. See U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 887, 888 (1990).