Social Security Administration and American Federation of Government Employees, Local 1923

[ v55 p978 ]

55 FLRA No. 160



(Charging Party/Union)




September 30, 1999


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by negotiating a last chance agreement with an employee, without notifying and bargaining with the Union. The Judge found that the Respondent did not violate the Statute as alleged, and recommended that the complaint be dismissed. [n2] 

      Upon consideration of the Judge's decision and the entire record, we reverse the Judge's decision and hold that the Respondent violated sections 7116(a)(1) and (5) of the Statute by failing to notify and bargain with the Union over a change in conditions of employment, and by bypassing the Union and negotiating directly with an employee.

II.     Background and Judge's Decision

      The disputed agreement between the Respondent and the employee arose from the employee's failure to pay a government-issued credit card bill. Over a period of months, there was a series of meetings and correspondence between the Respondent and the employee concerning this matter, which is summarized in the Judge's factual findings and is not relevant to the issues now before the Authority.

      As pertinent here, higher-level officials instructed the employee's supervisor to offer the employee a "negotiated discipline agreement" (Agreement). Judge's Decision at 4. The proposed Agreement stated that it would serve "as an alternative to formal disciplin[e]." Agreement, General Counsel Exhibit No. 3 at 1. It further stated that the Respondent intended to propose a 30-day suspension of the employee. Id. at 4. The Respondent offered in the proposed Agreement to impose a 10-day suspension to "be served on consecutive weekends to prevent the employee from losing pay," and to hold 20 days of the suspension in abeyance. Id. In order to obtain this reduction in the suspension, the proposed Agreement required that the employee admit committing the misconduct, agree to the 30-day suspension, agree to pay the credit card debt through direct deposit from her paycheck, and waive "all rights to grieve, appeal, or otherwise contest [the Agreement], in any action the Agency takes consistent with the Agreement." Id. at 3. The proposed Agreement provided that the 20 days of the suspension held in abeyance would be reinstated if the employee failed to adhere to its terms. Id. at 4. The proposed Agreement required that the employee agree that she "had sufficient time to consider the conditions and to seek advice from an attorney, a bargaining unit representative, or other counsel of choice." Id.

      The Judge found that, after the supervisor and employee discussed the proposed Agreement, the employee asked that the Agreement be revised to: (1) reflect that her inability to pay back the travel advance funds was caused by the attachment of her checking account by another creditor, and (2) delete the waiver of appeal rights. The Respondent refused to alter the Agreement. The employee and the supervisor signed the Agreement. At no time was the Union notified of these discussions or of the proposed Agreement.

      The General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by: (1) failing to notify the Union and provide it an opportunity to bargain over changes in conditions of employment contained in the Agreement; [ v55 p979 ] and (2) improperly bargaining directly with the unit employee and, thereby, bypassing the Union.

      The Judge concluded that the Respondent did not fail to notify and bargain over changes in conditions of employment contained in the Agreement, and did not unlawfully bypass the Union in dealing directly with the employee. The Judge relied on American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309 (1990) (AFLC), aff'd sub nom. U.S. Department of the Air Force v. FLRA, 949 F.2d 475 (D.C. Cir. 1991), which considered the negotiability of a variety of proposals relating to "last chance agreements." Judge's Decision at 8. [n3] 

      The Judge noted that Proposal 4 in AFLC permitted the Union to bargain over all last chance agreements. According to the Judge, the Authority found Proposal 4 outside the duty to bargain because it would "prohibit[] employees from exercising their rights to choose a representative other than the Union or to represent themselves in the negotiation of. . . [a last chance agreement]," in conflict with sections 7114(a)(5)(A) and 7121(b)(3)(B) of the Statute. [n4]  Id. at 9 (quoting AFLC, 38 FLRA at 329). The Judge found that, with respect to last chance agreements, "the Authority has in effect carved out an exception to the general obligation to negotiate about changes in conditions of employment." Id. at 12.

      Based on the foregoing, the Judge recommended that the complaint be dismissed.

III.     General Counsel's Exceptions  [n5] 

      The General Counsel contends that the Respondent's unilateral implementation of the Agreement was unlawful. The General Counsel argues that, as the Agreement's terms in this case had more than a de minimis impact upon the employee, the Respondent was required to notify the Union and permit it to bargain over the terms of the Agreement before unilaterally implementing the Agreement.

      The General Counsel further asserts that the Judge's decision is based on a misreading of AFLC and a misinterpretation of sections 7114(a)(5)(A) and 7121(b)(1)(C)(ii) of the Statute. The General Counsel argues that these sections authorize a unit employee to choose not to be represented by the employee's exclusive representative "in only two forums in which the employee is the affected party: in a grievance processed under a negotiated grievance procedure and in a statutory appeal proceeding." Exceptions at 12. According to the General Counsel, nothing in AFLC supports a conclusion that the Authority expanded those provisions beyond their plain wording.

      The General Counsel also argues that the Agency unlawfully bypassed the Union in violation of section 7116(a)(1) and (5) of the Statute by dealing directly with the employee, instead of the Union as exclusive representative. The General Counsel claims that AFLC confirms that the Agreement includes provisions concerning negotiable conditions of employment, such as the waiver of grievance and appeal rights, and that there is no authority permitting bargaining over these directly with the employee, outside the context of a grievance procedure or statutory appeal. The General Counsel argues that the fact that the employee had a personal interest in the matter did not give her a right to negotiate conditions of employment independently, because "the concept of collective bargaining is based on the displacement from an employee to the employee's union of the right to negotiate agreements that affect the employee's employment situation." Exceptions at 10 (citing J.I. Case Company v. NLRB, 321 U.S. 332 (1944)). [ v55 p980 ]

IV.     Analysis and Conclusions

A.     The Respondent Changed A Unit Employee's Conditions of Employment

      Section 7114(b)(2) of the Statute requires an agency and union to "negotiate in good faith" concerning "any condition of employment. [n6]  Section 7103(a)(14) of the Statute defines "conditions of employment" as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions." [n7]  In determining whether a matter about which a union seeks to bargain concerns a "condition of employment," the Authority applies the test set out in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles), which considers whether the matter pertains to unit employees and whether it has a direct connection to their work situation or employment relationship. See AFLC, 38 FLRA at 312.

      The Authority has held that last chance agreements concern conditions of employment under the Statute. See AFLC, 38 FLRA at 312. In so doing, the Authority stated that last chance agreements "relate to whether an employee's employment will continue and the circumstances under which an employee will be subject to disciplinary actions . . . . [and] clearly concern and have a direct relationship to the work situation and employment relationship of bargaining unit employees." Id. No party argues before us that this precedent should not be applied in this case.

      The "duty to bargain in good faith `requires that a party meet its obligation to negotiate prior to making changes in established condition of employment, during the term of a collective bargaining agreement . . . .'" Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 405 (1986) (quoting Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981)). The obligation to negotiate attaches to all changes in conditions of employment, including agency changes in the conditions of employment of only one employee. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Washington, 50 FLRA 701 (1995) (92 Bomb Wing) (requiring negotiation when instituting sign-out board for one employee); Veterans Administration Medical Center, Phoenix, Arizona, 47 FLRA 419 (1993) (VAMC, Phoenix) (requiring negotiation when changing hours of work for one employee). [n8]  See also note 6, supra. Of course, once a union and an agency have negotiated an agreement concerning a matter, the agency need not bargain over it further during the term of the agreement. See U.S. Department of Health and Human Services, Social Security Administration, 47 FLRA 1004, 1015-1019 (1993) (HHS); see also U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 51 FLRA 1274, 1277-78 (1996) (INS) (Authority held that because parties had already bargained over the impact and implementation of changes in work schedules, the respondent "did not incur any additional bargaining obligation" when it issued a memorandum concerning changes in holiday and Sunday tours of duty).

      In this case, the terms of the Agreement imposed a 10-day suspension of the employee, required the employee to comply with certain payment conditions, and waived her right to grieve or otherwise appeal the action. Consistent with the foregoing, we conclude that the Agreement, concerned, and changed, the employee's conditions of employment. See Headquarters, U.S. Air Force, Washington, D.C. and 375th Combat Support Group, Scott Air Force Base, Illinois, 44 FLRA 117, 124 (1992), aff'd 10 F.3d 13 (D.C. Cir. 1993) (Table) [ v55 p981 ] (issuance of furlough notice changed an employee's conditions of employment because the notice placed the employee in a status where he was subject to furlough, when prior to the notice he was not).

B.     The Respondent's Failure to Notify and Bargain with the Union Over the Changes in Conditions of Employment Violated the Statute

      There is no dispute that the Respondent did not notify the Union of the proposed changes in the employee's conditions of employment in the Agreement or offer it the opportunity to negotiate over them. There is also no claim by the Respondent that this matter is covered by an existing agreement between itself and the Union. As the Respondent did not provide the Union with notice and the opportunity to bargain, it violated section 7116(a)(1) and (5) of the Statute. See 92 Bomb Wing, 50 FLRA at 710.

      The Judge's contrary conclusion -- that the Respondent did not violate the Statute by failing to bargain with the Union -- was premised on his finding that, in AFLC:

the Authority has in effect carved out an exception to the general obligation to negotiate about changes in conditions of employment . . . [that] applies to changes made pursuant to [a last chance agreement], where the employee whose conditions are to be changed has elected not to have the union participate.

Decision at 12.

      In construing the decision in AFLC, the Judge relied primarily on the Authority's discussion of Proposals 3 and 4 in AFLC. Proposal 3 provided that the Union would be "notified and given an opportunity to be present" when employees are offered a last chance agreement. AFLC, 38 FLRA at 325. Proposal 4 provided that the Union "may bargain the terms and conditions of" last chance agreements. The Authority found Proposal 3 within the duty to bargain and Proposal 4 outside the duty to bargain. Id.

      Concluding that Proposal 4 was outside the duty to bargain in AFLC, the Authority found that it conflicted with the rights of employees to represent themselves in the negotiated grievance procedure and to be represented by "an attorney or other representative, other than the union" in grievance or appeal actions outside the collective bargaining process. 5 U.S.C. 7121(b)(1)(C)(ii), 7114(a)(5)(A); see AFLC at 328. The Authority explained that the negotiation of last chance agreements may occur while discipline is being challenged through the negotiated grievance procedure or other statutory appeal procedures, and Proposal 4 would have foreclosed employees from exercising their right to other representation, by granting exclusive representation rights to the Union in that context. Id.

      The Judge held that the Authority's holding with respect to Proposal 4 was not limited to situations where a last chance agreement is proposed while a grievance or appeal is pending. Decision at 9. He relied on the fact that "the Authority sa[id] nothing to suggest that Proposal 4 would have been negotiable" if it had been limited to circumstances other than pending grievances and appeals. Id. at 10. He thus found appropriate an "expansive interpretation of the employee['s] rights" under sections 7121(b)(1)(C)(ii) and 7114(a)(5)(A), in which these rights are "paramount" to the Union's right to negotiate. Id. at 10-11.

      We do not agree with the Judge that an inference should be drawn from the Authority's failure to comment, in AFLC, on possible variations of the proposal that was before it in that case. [n9]  In addition, we find no support in the terms of the Statute or its structure for reading the employee rights in sections 7121(b)(1)(C)(ii) and 7114(a)(5)(A) in a manner different from how they are set forth in the Statute. See generally Holloway v. U.S., 119 S. Ct. 966, 969 (1999) (quoting United States v. Turkette, 452 U.S. 576, 593 (1981) (wording of statute, including placement and purpose, is the "most reliable evidence of its intent")).

      Sections 7121(b)(1)(C)(ii) and 7114(a)(5)(A) permit employees to represent themselves or secure representation other than a union in specific, defined situations where grievance or appeal procedures have been invoked. In this case, the Respondent conceded that it had not "taken any action against the employee" and that "there is no contractual or statutory appeal that is pending." Respondent's Supplemental Brief at 1. Therefore, these statutory exceptions are not implicated in this case. As such, they cannot override the Union's right to negotiate concerning employees' conditions of employment. [n10]  [ v55 p982 ]

      In holding that the Union did not have a right to negotiate concerning the employee's last chance agreement, the Judge also relied on the Authority's statements with respect to Proposal 3 in AFLC, that the negotiated right of a union to be present when such agreements are offered "exceed[s] those [rights] established under the statute." Judge's Decision at 9, 10, citing 38 FLRA at 332. The Judge stated that, in view of the Authority's reasoning in finding Proposal 3 to be within the duty to bargain in AFLC, it would be "peculiar" for the Authority to hold that "a union has a statutory right to negotiate a [last chance agreement] . . . ." Judge's Decision at 10.

      The Judge's conclusion fails to take into account that a union's rights to be present at a variety of types of meetings, set out in section 7114(a)(2) of the Statute, are rights granted in addition to, and distinct from, the Union's right to negotiate terms and conditions of employment, set out in sections 7114(a)(1) and (b) of the Statute. In AFLC, the Authority held that meetings referred to in Proposal 3, at which last chance agreements were to be "offered," did not constitute either a formal discussion or an "examination concerning an investigation" under section 7114(a)(2)(A) and (B), respectively, and that, as a result, the union did not have a right under the Statute to attend those meetings. 38 FLRA at 329-31. Nevertheless, the Authority found the Proposal 3 within the duty to bargain on the ground that "a union may negotiate contractual representational rights that exceed those established under the Statute[.]" Id. at 332. The Authority stated specifically that Proposal 3 did not concern the negotiation of last chance agreements. Id. at 327.

      The Authority's decision regarding Proposal 3 in AFLC and our decision in this case are consistent. The distinct treatment of the Union's statutory rights under section 7114(a)(2) to attend meetings in AFLC, and the Union's right under section 7114(a)(1) and (b) to negotiate in this case, results from the simple fact that different statutory provisions are involved in the two cases; the statutory rights that were involved in the analysis of proposal 3 in AFLC, are not at issue here. Thus, there is no contradiction between our holding here that the Union has an exclusive right to negotiate the terms of the last chance agreement proposed by the Respondent, and the Authority's holding in AFLC that other statutory rights --to attend formal discussions and investigatory examinations -- do not necessarily apply to all meetings involving such agreements. [n11] 

      In sum, we hold that, in the circumstances presented by this case, the Respondent violated its obligation to notify the Union and bargain concerning proposed changes in the employee's conditions of employment imposed in the last chance agreement. [n12] 

C.     The Respondent Illegally Bypassed the Union.

      Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions and other matters relating to the collective bargaining relationship." U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339, 1346 (1996) (Bastrop), citing Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 311 (1991). Where an agency negotiates directly with unit employees concerning a change in a condition of employment, this "inher- [ v55 p983 ] ently undermines the status of the Union and constitutes a violation of the Statute." Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA 1226, 1239 (1991). Such conduct violates section 7116(a)(1) and (5) of the Statute because it interferes with the Union's rights under section 7114(a)(1) of the Statute, and also constitutes an independent violation of section 7116(a)(1) of the Statute because it demeans the Union and inherently interferes with the rights of employees to designate and rely on the Union for representation. Bastrop, 51 FLRA at 1346.

      Here, the Respondent negotiated directly with the employee concerning her conditions of employment, reaching a written agreement to alter those conditions. As such, it bypassed the Union and violated sections 7116(a)(1) and (5) of the Statute.

D.     To Remedy the Violation, the Respondent Must Void the Agreement at the Request of the Union.

      The General Counsel requests that the Respondent be ordered to post a notice of its violation at the Branch Office where the violation occurred and, at the request of the Union, to void the Agreement with the employee and purge it from its files. The General Counsel explains that the Union should be given the opportunity to decide whether the Agreement should be voided, in the event there are adverse consequences of this action to the employee.

      The Agency has not objected to the requested remedies and they appear appropriate under the circumstances. Accordingly, we order the Respondent to post a notice concerning its violation and, at the request of the Union, void the Agreement and purge it from Respondent's files.

V.     Order

      Pursuant to section 2423.41 of the Federal Labor Relations Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the Social Security Administration, shall:

      1.     Cease and desist from:

           (a) Failing to negotiate with the American Federation of Government Employees, Local 1923, concerning last chance agreements proposed for bargaining unit employees, where no discipline has been proposed against the employee.

           (b) In any like or related manner interfering with, restraining, or coercing unit 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) Post at the Branch office of the Social Security Administration where the complaint arose, copies of the attached Notice on forms furnished by the Authority. Upon receipt of such forms, they shall be signed by the head of the office, 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 placed. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (b) At the request of the American Federation of Government Employees, Local 1923, void the Agreement which gave rise to this complaint and purge all copies of the Agreement from the Respondent's files.

           (c) Pursuant to Section 2423.41(e) of the Authority's Regulations, notify the Washington Regional Director, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v55 p984 ]


The Federal Labor Relations Authority has found that the Social Security Administration, has acted unlawfully by committing a violation of the Federal Service Labor-Management Relations Statute. The Authority has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail to notify and negotiate with the American Federation of Government Employees, Local 1923, in the event we propose, without taking disciplinary action against an employee, that the employee agree to accept certain discipline, to waive his or her right to grieve or appeal such discipline, and to take other action.


Date: __________ 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 other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Washington Regional Director of the Federal Labor Relations Authority, whose address is: Tech World Plaza, 800 K Street, N.W., Suite 910, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700.

File 1: Authority's Decision in 55 FLRA No. 160
File 2: Opinion of Member Cabaniss
File 3: ALJ Decision

Footnote # 1 for 55 FLRA No. 160 - Authority's Decision

   Member Cabaniss' dissenting opinion is set forth at the end of this decision.

Footnote # 2 for 55 FLRA No. 160 - Authority's Decision

   The complaint also alleges that the Respondent violated section 7116(a)(1) of the Statute by unlawfully coercing the employee into waiving rights that are protected by the Statute. The Judge found that the Respondent did not coerce the employee, and no exceptions were filed to this finding. We adopt without precedential significance those findings to which no exceptions were filed, pursuant to section 2423.41(a) of the Authority's Regulations.

Footnote # 3 for 55 FLRA No. 160 - Authority's Decision

   The Authority has defined a "last chance agreement" as "a contract between an employee and an employer that gives the employee an opportunity to conform [his or her] conduct or performance to meet the employer's requirements in exchange for the retraction of disciplinary or adverse actions." AFLC, 38 FLRA at 309 n.1.

Footnote # 4 for 55 FLRA No. 160 - Authority's Decision

   Section 7121(b)(3)(B)(1990), as discussed by the Authority in AFLC, and by the General Counsel and the Judge in this case, has been redesignated as section 7121(b)(1)(C)(ii), and will be referred to by its current designation in this decision. See Pub. L. 103-424, 9(a)(2)(3) (1994).

Footnote # 5 for 55 FLRA No. 160 - Authority's Decision

   The Respondent did not file an opposition to the General Counsel's exceptions.

Footnote # 6 for 55 FLRA No. 160 - Authority's Decision

   In this respect, section 7114(b)(2) differs from section 7114(a)(2)(A) of the Statute, which provides unions the right to attend formal discussions only when those discussions concern "general conditions of employment." As Congressman Udall explained in the legislative history to the Statute, the word "general" was inserted in section 7114(a)(2)(A) to