48:0383(33)CA - - SSA, Douglas Branch Office, Douglas, AZ and AFGE, Council 147 - - 1993 FLRAdec CA - - v48 p383

[ v48 p383 ]
The decision of the Authority follows:

48 FLRA No. 33












(Charging Party/Union)




August 27, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs.

The complaint alleges that the Respondent refused to negotiate with the Union regarding a Union-initiated proposal concerning the installation of an anti-fatigue mat at the interview counter of the Respondent's facility, in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute).

For the reasons stated below, we find that the Respondent did not commit the unfair labor practice as alleged.

II. Facts

The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of a consolidated nationwide bargaining unit of certain employees of the Social Security Administration (Agency), including those at the Respondent's facility. The Union is an agent of AFGE for purposes of representing unit employees of the Respondent. By letter dated April 11, 1988, AFGE informed the Commissioner of the Agency that it had delegated to its locals the right to initiate mid-term bargaining.

At all times relevant here, AFGE and the Agency have been parties to a national collective bargaining agreement, dated January 25, 1990 (MLA). Article 9 of the MLA is entitled Health and Safety.(1)

On March 10, 1992, the Union's president submitted to the Respondent's branch manager a proposal to negotiate concerning the installation of an anti-fatigue mat at the office's reception counter. The proposed installation of the anti-fatigue mat was to alleviate the stress on employees while standing on a thinly carpeted floor conducting business. On March 23, 1992, the branch manager responded to the Union's bargaining demand, refusing to bargain because there had not been a change in conditions of employment and because the Respondent had no information "that indicate[d] that an unsafe or unhealthy working condition exist[ed] at the work-station, as covered by Article 9 - Health & Safety, of the [MLA]." Stipulation Exhibit 5.

The parties stipulated that "[t]he issue concerning anti-fatigue mats was not discussed by the parties during term negotiations." Stipulation, paragraph 11.

III. Positions of the Parties

A. The General Counsel

The General Counsel asserts that the Authority should continue to adhere to its holding in Internal Revenue Service, 29 FLRA 162 (1987) (IRS).(2) The General Counsel contends that, under the legal analysis set forth in IRS, the Respondent violated the Statute when it refused to bargain with the Union. The General Counsel further contends that matters involving health and safety are negotiable and that the Union did not waive its right to initiate mid-term bargaining concerning the installation of an anti-fatigue mat at the reception counter because that issue was never discussed by the parties during MLA negotiations. The General Counsel also argues that nothing in Article 9, sections 3.A.4 and 16 of the parties' MLA establishes that the Union must receive complaints from employees before submitting mid-term bargaining proposals. Accordingly, the General Counsel contends that the Respondent's arguments that Article 9 covers the matter at issue are "unpersuasive." General Counsel brief at 7.

Finally, the General Counsel maintains that AFGE's April 11, 1988, letter to the Agency's Commissioner properly delegated the right to initiate mid-term bargaining to the AFGE locals. The General Counsel contends that the Respondent, by its silence, acquiesced to AFGE's delegation of mid-term bargaining authority to the Union and to mid-term bargaining below the level of exclusive recognition. The General Counsel further argues that the Respondent never advised the Union that it lacked authority to enter into mid-term negotiations and that the Respondent never suggested that the Union's request should be submitted to another level.

B. The Respondent

The Respondent contends that the Statute does not require that an agency bargain on union-initiated mid-term proposals during the term of a collective bargaining agreement and that such bargaining would undermine the Statute's underlying Congressional intent. In support of its contention, the Respondent relies on the Fourth Circuit's decision in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA).(3) The Respondent also contends that issues involving health and safety are more appropriately addressed under the provisions of the MLA. The Respondent maintains that section 3 of Article 9 provides a procedure for reviewing health and safety concerns, including joint inspection of the Agency's field office facilities by management and union-designated health and safety officials and review on appeal to an appropriate management level if a local union representative is dissatisfied with local management's disposition of the matter.

Finally, the Respondent argues that the Union's request to initiate mid-term bargaining was not made at the proper level of recognition. The Respondent asserts that because the level of exclusive recognition is at the national level, it is under no obligation to bargain below the national level absent mutual agreement. In this regard, the Respondent contends that there is no evidence that any mutual agreement to bargain at the local level exists.

IV. Analysis and Conclusions

First, we reject the Respondent's reliance on SSA v. FLRA. The Aut