[ v16 p1135 ]
16:1135(148)CA
The decision of the Authority follows:
16 FLRA NO. 148
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-413
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent and the Charging Party filed both exceptions to the Judge's Decision and oppositions to each other's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order, as modified herein.
In agreement with the Judge, and as stipulated by the General Counsel and the Respondent, Social Security Administration (SSA), the Authority concludes that the Respondent established and implemented performance standards and critical elements on a nationwide basis pursuant to interim regulations promulgated by the Office of Personnel Management under 5 U.S.C. 4303 (1978), without having given notice to or having bargained with the exclusive representatives of affected SSA employees. 1 In further agreement with the Judge, the Authority [ v16 p1135 ] concludes that the failure to give notice and to bargain over the procedures utilized in implementing these interim performance standards and critical elements, as well as on appropriate arrangements for employees affected thereby, violated section 7116(a)(1) and (5) of the Statute. 2
As a remedy, the Judge recommended that the Authority issue a status quo ante order, including a requirement that the Respondent repeal or revoke all regulations or memoranda related to the critical elements and performance standards established pursuant to the interim regulations of the Office of Personnel Management. The Authority concludes that such requirement is not warranted. Thus, the existence of such regulations or memoranda is not established in the record. Moreover, the Respondent has revoked, in accordance with an order of the Merit Systems Protection Board (MSPB), the performance standards and critical elements, which would be the subject matter of such regulations or memoranda. Those standards and elements were established pursuant to interim regulations declared by the MSPB to be invalid and invalidly implemented in Wells v. Harris, 1 MSPB 199 (1979).
The Judge further recommended that the Respondent be ordered to make whole "any employees adversely affected" by the unfair labor practices. Contrary to the Judge, the Authority finds that such a remedy is not warranted. Thus, as the Judge noted in his Decision, "the interim regulations on which Respondent relied, in fact, were found by the MSPB to be invalid and subsequent action by the Respondent pursuant to the MSPB opinion and order made the affected employees whole for Respondent's action." The Judge also stated that as a result of the decision in Wells v. Harris, supra, "all employees who were displaced through the use of interim regulations were restored to work and received backpay amounting to approximately $140,000.00." In fact, the MSPB issued two specific orders in connection with its decision in Wells v. Harris to fully remedy any losses suffered by adversely affected employees. Order of Corrective Action, 2 MSPB 291 (May 20, 1980), and Order, 2 MSPB 549 (July 17, 1980). [ v16 p1136 ]
Moreover, even if the MSPB orders in the Wells case, supra, did not apply to all employees adversely affected by Respondent's unlawful conduct herein, the award of backpay would not be permissible. Section 7118(a)(7)(C) of the Statute empowers the Authority to order backpay only in accordance with the criteria set forth in the Back Pay Act, 5 U.S.C. 5596. Accordingly, the Authority has held that, in order to warrant an award of backpay under the Statute, it is necessary to establish not only that an employee has been adversely affected by an unjustified or unwarranted personnel action, but also that but for the improper action such employee would not have suffered a loss or reduction in pay, allowances or differentials. See, e.g., Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89 (1984); Department of the Air Force, Air Force Systems Command, Electronics Systems Division, 14 FLRA No. 63 (1984). No such finding can be made in the circumstances herein, because it cannot be established that but for the Respondent's refusal to negotiate over the impact and implementation of the interim performance standards and critical elements, particular employees would not have suffered a loss of pay.
In reaching these conclusions, the Authority notes particularly that the Judge correctly refused to expand the scope of the complaint to encompass additional allegations unrelated to the interim performance standards and critical elements promulgated under 5 U.S.C. 4303, which were neither raised in the complaint nor fully litigated at the hearing. See, e.g., Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA 512 (1980).
ORDER 3
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Social Security Administration shall:
1. Cease and desist from:
(a) Instituting a change in critical elements and performance standards affecting unit employees without first notifying the American Federation of Government Employees, AFL - CIO, the exclusive representative of its employees, and affording it the opportunity to negotiate concerning the procedures to be observed in implementing such change and on appropriate arrangements for employees affected thereby.
(b) Refusing to negotiate with the American Federation of Government Employees, AFL - CIO, the exclusive representative of its [ v16 p1137 ] employees, concerning procedures to be observed in implementing changes in critical elements and performance standards for unit employees and on appropriate arrangements for employees affected thereby.
(c) 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) Notify the American Federation of Government Employees, AFL - CIO, the exclusive representative of its employees, of any intended changes in critical elements and performance standards affecting such employees, and afford it the opportunity to negotiate concerning the procedures to be observed in implementing such changes and on appropriate arrangements for employees affected thereby.
(b) Post at all its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Such forms shall be signed by the Commissioner, or his designee, 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, 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., December 27, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v16 p1138 ]
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute a change in the critical elements and performance standards affecting unit employees without first notifying the American Federation of Government Employees, AFL - CIO, the exclusive representative of our employees, and affording it an opportunity to negotiate concerning the procedures to be observed in implementing such change and on appropriate arrangements for employees affected thereby.
WE WILL NOT refuse to negotiate with the American Federation of Government Employees, AFL - CIO, the exclusive representative of our employees, concerning the procedures to be observed in implementing changes in critical elements and performance standards for unit employees and on appropriate arrangements for employees affected thereby.
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 notify the American Federation of Government Employees, AFL - CIO, the exclusive representative of our employees, of any intended changes in critical elements and performance standards affecting such employees, and afford it the opportunity to negotiate concerning the procedures to be [ v16 p1139 ] observed in implementing such changes and on appropriate arrangements for employees affected thereby.
______________________________
(Agency)
Dated:____________________ 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 its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8456. [ v16 p1140 ]
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-413
Clara W. Williamson, Esq.
For the General Counsel
James Rosa, Esq.
For the Union
Daniel H. Green
Carl J. Clayton
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor - Management Relations Statute, hereinafter referred to as the Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. It was instituted by the Regional Director of Region 3 by the issuance of a complaint and notice of hearing on December 18, 1980 based upon a charge filed on August 13, 1979, by the American Federation of Government Employees, National Council of Social Security [ v16 p1141 ] Payment Center Locals, hereinafter called the Council and amended on September 18, 1979. 4
The complaint alleges that the Social Security Administration, herein called the Respondent unilaterally changed its past practice with respect to performance appraisals including the procedures for taking action against employees for unacceptable performance, without bargaining with the American Federation of Government Employees, AFL - CIO, hereinafter called the Union on procedures which management would observe in the development and implementation of performance standards and critical elements, and on appropriate arrangements for employees adversely affected by the application of performance standards to them, thereby failing or refusing to negotiate in good faith with the Council in violation of section 7116(a)(1) and (5) of the Statute.
A hearing was held in Baltimore, Maryland at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine and cross-examine witnesses and argue orally. Briefs were filed by all parties concerned and have been duly considered.
Upon consideration of the entire record in this matter, including my evaluation of the testimony and evidence presented at the hearing, and my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order.
Findings of Fact
No real issue exists with respect to jurisdiction in this matter, those allegations having been expressly admitted by Respondent in its answer.
On August 30, 1979, the Union was certified as the exclusive bargaining representative for all non-supervisory Social Security Administration employees in a national consolidated union. Prior to the above certification of the consolidated unit the Council held national exclusive recognition for the employees of Respondent's Program Service [ v16 p1142 ] Centers. These Service Centers are located in New York, New York, Philadelphia, Pennsylvania, Birmingham, Alabama, Chicago, Illinois, Kansas City, Missouri, and Richmond, California. Also, there is a Division of International Operations located in Baltimore, Maryland. Aside from the Service Center employees, other employees were affected by Respondent's actions in this matter and were represented at the local level by the Union, which was the level of exclusive recognition prior to the August 30, 1979, certification referred to above. The National Office of American Federation of Government Employees or the Union held national consultation rights with Respondent, prior to the certification of the consolidated unit.
The pertinent facts in this matter are neither complicated nor lengthy. Respondent and the General Counsel entered into a stipulation which the Charging Party refused to join. Those basic facts are set out below.
Around January 16, 1979, the Office of Personnel Management, hereinafter called OPM, published interim implementing regulations concerning the unacceptable performance provisions of the Civil Service Reform Act (CSRA). These regulations dealt with reduction in grade and removal based on unacceptable performance. Without question these regulations prompted Respondent's action in this matter. The regulations were subsequently declared invalid by a decision of the Merit Systems Protection Board hereinafter called the MSPB, in a Memorandum Opinion and Order Wells v. Harris, which issued on December 17, 1979, and is discussed infra.
With regard to the standards in question, unacceptable performance as used in 5 U.S.C. Section 4303 is defined as failure to meet established performance standards in even a single "critical element" of the employee's position. 5 This standard is a narrower justification for removal than the Chapter 75 of Title 5 requirement of "such cause as will promote the efficiency of the service." 6 Consequently, performance related removals and demotions are more easily sustained under Section 4303 than under Chapter 75 of Title 5. Demotions or removals under Section 4303 are to be sustained on appeal if supported by "substantial evidence," whereas adverse actions under Chapter 75 of Title 5 must be based on the "efficiency of the service" and must be supported by a "preponderance of the evidence." 7 [ v16 p1143 ]
The regulations issued by OPM set forth interim procedures for taking personnel actions against employees under Section 4303 before an Agency had established a "performance appraisal system" covering the affected employees. As previously stated, the MSPB ultimately decided that these regulations were invalid. In Wells v. Harris the MSPB found that the legislative objective of the Civil Service Reform Act was to create a single inter-related framework in which the results of performance appraisal systems established under Section 4302 were to be used as a basis for taking actions under Section 4303. The procedures of Section 4303 were not intended to be applied to employees whose performance has not been evaluated under a Section 4302 appraisal system. The MSPB, therefore concluded that the OPM regulations implementing Section 4303 and the actions taken by Respondent pursuant to those regulations were invalid. As the result of a favorable decision in the Wells case all employees who were displaced through use of the interim regulations were restored to work and received backpay amounting to approximately $140,000.00.
Respondent's actions prior to the Wells decision are set out more fully below. Beginning sometime in February 1979 and continuing through approximately September, 1979 Respondent, on a nationwide basis, issued numerous letters and memoranda to certain employees describing the performance standards and critical elements of their positions under the Civil Service Reform Act. The employees involved in these actions occupy various job series and are scattered throughout the United States. The critical elements and performance standards involved herein were issued to those employees prior to notification to or negotiations with the Council, although it held exclusive recognition for Program Service Center employees. In addition, the critical elements and performance standards involved in this matter were issued to employees prior to notification to or negotiations with any exclusive bargaining representative at the local level, which was the level of exclusive recognition for non - Program Service Center employees.
Prior to such personnel actions, about March 15, 1979, Acting Associate Commissioner for Management, Budget and Personnel, Herbert Doggette, Jr. issued a memorandum entitled, "Implementation of the Unacceptable Performance Provisions of the Civil Service Reform Act Information" which stated, in part:
We are planning to develop critical elements and performance standards centrally for all jobs which have standard position descriptions... In the meantime, in order to take actions based on new regulations, supervisors should develop interim critical elements on an as-needed basis to implement the unacceptable performance provisions of the law. [ v16 p1144 ]
Beginning in April 1979, Respondent took personnel actions against employees under established interim criteria for their failure to meet the performance standards for the critical elements of their positions.
After obtaining information of adverse actions taken against employees based on the issuance of interim critical elements and performance standards, the Council contacted the AFGE National Office and requested assistance in the matter. Thereafter, around April 25, 1979, the AFGE National Office submitted proposals on behalf of the Council at a mid-term bargaining session following national consultation rights meeting in April 1979. The Union, at the national consultation rights meeting, inquired about Respondent's intention to develop an appraisal system, as, at that time, it had received a copy of the March 15, Doggette memorandum previously referred to. The Union was informed that Respondent was a long way off from developing this system. Respondent further informed the Union that it had the right to establish critical elements and performance standards because of the OPM regulations and that no bargaining obligation existed. However, at that time, it is clear that interim critical elements and performance standards had been and were being issued to employees on a nationwide basis, and adverse actions were being taken against employees based on their failure to meet performance standards for one or more critical elements of their respective positions.
By letter dated May 14, 1979, Respondent answered the Council's proposals, stating that the Office of Program Service Centers had neither developed nor proposed changes in the existing performance appraisal system or performance standards and that the Council's proposals were thus premature. In that letter Respondent stated:
Where managers have had cause to be concerned with the performance of individual employees, under SSA's delegation of authority and in accordance with the interim operating instructions of the Office of Personnel Management, managers have taken specific action with respect to individual employees.
On May 30, 1979, Acting Associate Commissioner Doggette issued a memorandum supplementing the March 15, 1979 memorandum directing each component to establish procedures for prior review of interim critical elements and performance standards. Shortly thereafter Respondent issued a memorandum dated June 18, 1979 entitled, "Consultation with AFGE Officials on National Issues - Performance Appraisal Provisions of the Civil Service Reform Act - Employer Questionnaire - Information," stating that it was developing a separate appraisal system. This memorandum confirmed that although critical elements and performance standards were not negotiable, certain procedural matters related thereto "may be subject to the collective bargaining process." [ v16 p1145 ]
By letter dated June 29, 1979, the Council reiterated its demand for bargaining on its proposals submitted on April 26, 1979.
Respondent, by letter dated July 18, 1979, replied to the Council's demand, reiterating that the Office of Program Service Centers had neither developed nor proposed any changes in the existing performance appraisal system.
The Council, by letter dated August 21, 1979, renewed its request to negotiate with regard to the establishment of a performance appraisal system by Respondent, again by letter dated September 10, 1979, advised the Union that the Office of Program Service Centers received interim critical elements and performance standards beginning in February 1979, and adverse actions were taken against such employees beginning in April 1979.
Discussion and Conclusions
A. Respondent's failure to give notification and to negotiate the Implementation and Impact of Interim Performance Standards.
Although this matter is factually simple the parties have raised numerous issues relating mostly to the appropriate remedy, in the event a violation is found herein. The issues involved are whether Respondent unilaterally and without notification with the exclusive bargaining representative, implemented on a nationwide basis, interim critical elements and performance standards, denying the exclusive representative the opportunity to negotiate concerning procedures to be utilized in developing and implementing the critical elements and performance standards and appropriate arrangements for employees adversely affected by these standards in violation of section 7116(a)(1) and (5) of the Statute. And, whether after May 14, 1979 and continuing Respondent refused to negotiate in good faith concerning procedures which Respondent would observe in the development and implementation of performance standards and critical elements, and on appropriate arrangements for adversely affected employees, in violation of section 7116(a)(1) and (5).
With respect to the basic issue it is abundantly clear that Respondent gave no notification and refused to bargain with any of several components of the American Federation of Government Employees, the exclusive representative of the employees involved. As already noted, the interim regulations on which Respondent relied, in fact, were found by the MSPB to be invalid and subsequent action by the Respondent pursuant to the MSPB opinion and order made the affected employees whole for Respondent's action. The Charging Party, however, argues that the MSPB opinion and order did not entirely correct the matter since other [ v16 p1146 ] employees may have been affected or alternatively, in essence, that these standards had a lingering effect on many employees and that subsequent personnel actions have indeed been taken based on those invalid standards. Respondent contends that any impact following the Wells decision is de minimis.
Although the MSPB opinion and order ostensibly cured the rights of all employees involved, the Union correctly argues, in my view, that the opinion and order did not remedy the rights of the Union as the exclusive bargaining representative since it received no notification of the institution of new critical elements and performance standards, and since Respondent refused to negotiate concerning the new standards once the Union became aware that these standards existed.
In Social Security Administration, 8 FLRA No. 102 (1982) the Authority reiterated that negotiability proposals to establish critical elements and performance standards directly interfere with the exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, and therefore are not within the duty to bargain. However, it added that in accordance with section 7106(b)(2) and (3) of the Statute, there is a duty to bargain concerning the procedures which management will observe in exercising its reserved rights and concerning appropriate arrangements for employees adversely affected by management's exercise thereof.
The Authority decision in the Social Security case, supra, makes it clear that where critical elements and performance standards are the topic of negotiation impact and implementation bargaining is not foreclosed. Thus, while negotiation with regard to the establishment of performance standards is precluded, the negotiation of various other aspects of performance standards is permissible. If this is the case, Respondent in this matter had an obligation to negotiate upon request, at least the implementation and impact of the interim standards. Without question the exclusive representative upon discovering that Respondent had instituted the OPM standards requested negotiations and Respondent continually refused to meet its obligation to negotiate. Having found that there is an obligation to negotiate concerning procedures and the impact and implementation of the instant critical elements of performance standards, it must be concluded that Respondent's refusal to give notification to or negotiate the interim standards after several requests by the exclusive representative of its employees is violative of section 7116(a)(5) and (1) of the Statute.
B. Respondent's Bargaining Obligation - Standing of AFGE.
With this aside, Respondent's contention as to who the obligation to negotiate with must be addressed. Respondent's arguments, in its belief, [ v16 p1147 ] concerning where its bargaining obligation rests are dismissed as frivolous. Respondent admittedly gave no notification to any exclusive representative concerning implementation of the interim standards although it most certainly knew who represented what employees in what units and so forth. Respondent has an affirmative obligation, in my opinion, to seek out and notify the proper exclusive representative when making changes which require negotiations. In making changes where there is a question of whether a duty to negotiate exist, an Agency would indeed act at its peril in affecting such changes in working conditions without giving proper notification to the exclusive representative of its employees. The parties in this matter were bound by written agreement and there is no evidence that Respondent was confused concerning which exclusive representative should be notified. It must be concluded, that Respondent in its haste to implement the interim standards simply ignored its obligation to give notice to the employees' exclusive representative. It is for this reason that Respondent's contention, in its brief, that it did not bypass any exclusive representative must be rejected. In all the circumstances, there is a presumption that the employees had an exclusive representative and the status of the representative was not vulnerable to attack at that time. If anything is clear on the record, it is that Respondent made no attempt to notify or negotiate prior to instituting the interim regulations. It could well have anticipated that the scope of this action would require, at a minimum, impact and implementation bargaining and common sense dictated that Respondent notify the exclusive representative of the affected employees. Such a failure to even seek out the exclusive representative in an action this wide in scope indicates that Respondent was, at the very least, remiss in its duty. I fully agree with the Charging Party that there was "a substantial enough change in working conditions to entitle the (Union) to advance notice of the proposed change and an opportunity to negotiate concerning such change." 8
Moving to Respondent's contention that it relied in "good faith" on the advice of the OPM that its "interim procedures" were valid and the only procedure available to take performance actions under 5 U.S.C. 4303. Such a defense is wide of the mark. As the General Counsel points out, reliance on the validity of the OPM instructions has little or nothing to do with this case. The issue here is whether when taking such action which requires a change in the working conditions of employees, an agency has the responsibility to notify and bargain with the collective [ v16 p1148 ] bargaining representative of the employees involved. 9 It has already been found that there is an obligation to negotiate concerning procedures and implementation and impact changes in the performance standards involved in this matter; that there was no notification to the exclusive representative; that Respondent implemented the changes complained of; and, finally that Respondent did not notify the exclusive representative or negotiate upon request procedures or impact and implementation of the interim standards. The MSPB's decision invalidating the interim regulations came long after Respondent's bargaining obligation was established. Moreover, the core of this matter is not the validity of the interim regulations, but whether there was any obligation to notify and negotiate with the exclusive bargaining representative. Having already answered that question in the affirmative, it must be found that Respondent's argument lacks merit.
With regard to Respondent's contention, in its brief, concerning the "old" and "new" or "apples and oranges" performance standards, it is found that Respondent is not relieved of its obligation to negotiate merely because performance standards already existed within Social Security. While this is undoubtedly true, the question raised by the instant proceeding does not lend itself to that argument. By conceding that old standards existed Respondent may have bound itself to negotiation on any standards which changed those already existing standards. Surely this was not its intention. For case law makes it clear that were a term of condition of employment is changed, even if that term or condition of employment is established through past practice, there is an obligation to notify the exclusive representative and negotiate concerning the change. The mere fact that bargaining is not required on all aspects of critical elements and performance standards does not change in any respect Respondent's obligation to give notification and to negotiate. The obligation is to well engrained in Federal sector law to require further clarification. Respondent's argument in this regard must, therefore be rejected.
Little need be said concerning the AFGE national office intervention since an amended charge was filed by it after it became the exclusive bargaining representative for Social Security employees on August 30, 1979. As previously stated, as collective bargaining representative the AFGE had not only the right but the obligation to act in this matter. I view Respondent's action in raising such an issue when it gave no [ v16 p1149 ] notification to any exclusive representative when there was an absolute obligation to do so as lacking merit.
Section 2423.3 provides that "an activity, agency or labor organization may be charged by any person with having engaged in or engaging in any unfair labor practice.... Clearly, this section indicates that a national organization may file charges on behalf of any subordinate unit where it believes that an unfair labor practice has been committed. The purpose of the charge herein was to determine whether or not there was a bargaining obligation and at what level that obligation existed.
Furthermore, to raise such an issue as a means for avoiding a statutory obligation shows a serious disregard for the fundamental purpose of the Statute at hand which is to "serve the public business."
C. Charging Party's Request to Broaden Scope of Violation.
The amended charge and complaint in this case allege that Respondent did not respond to the Union's requests to negotiate on April 26 and June 29, 1979, respectively. The Charging Party urges a broader violation which apparently would mandate bargaining over all aspects of employee evaluation and performance appraisal other than the identification of critical elements and the establishment of performance standards. The Authority has made it clear that where conduct is not alleged either in the charge or complaint a violation will not lie. Department of Health, Education and Welfare, Office of Civil Rights, Region VI, Dallas, Texas 5 FLRA No. 50 (1981). Cf. Veterans Administration Hospital, Danville, Illinois, 4 FLRA No. 59 (1980). The Charging Party alleges that the complaint language "Respondent refused and continues to refuse, to negotiate with the Union." I disagree. Indeed the gravamen of the complaint is that Respondent continually refused to bargain with regard to the OPM interim regulations and nothing more. Although a duty to bargain in good faith is a continuing one, there must be some semblance between what is alleged in the complaint and the violation alleged to have occurred. The complaint in this matter does not, expand the scope of this proceeding into all refusal to negotiate performance standards situations which might have occurred between Respondent and the Union. Here the heart of the matter, unlike the Charging Party's contention, is that Respondent unilaterally implemented interim performance standards pursuant to the OPM regulations. Those standards have long since been revoked and the employees involved allegedly made whole by the MSPB decision of December 1979. Since the interim standards no longer exist and since the request to bargain was addressed to these specific standards no violation could be based on subsequent actions involving critical elements or performance standards initiated under some other criteria. For example, the parties almost certainly discussed such [ v16 p1150 ] standards during negotiations for a new Master Agreement, however, any alleged violations during those negotiations are not the subject of the instant proceeding. It is for the same reason that the undersigned experiences difficulty with the Charging Party's requested remedy in this matter, see discussion infra.
Finally, with regard to National Labor Relations Board v. Handy Hardware, 93 LRRM 2881 (5th Cir.) raised by the Charging Party in its brief. The Authority has clearly indicated in the Department of Health, Education and Welfare and Veteran's Administration Hospital cases cited, supra, that it will not expand the scope of the complaint to find violations not alleged in the complaint. Furthermore, even the National Labor Relations Board will not find violations based on conduct that is not encompassed in the complaint and not fully litigated at the hearing. The Charging Party's argument amounts to an attempt to amend the complaint at the hearing to include remedies and individuals not included in the original complaint. Even assuming that an amendment were allowed at this late date, the matters raised by the Charging Party was not fully litigated at the hearing. For the undersigned to base a violation or remedy on a matter not completely litigated would undoubtedly be improper. It is, therefore, found that the violation herein is limited to actions taken pursuant to the interim regulations, as set out in the complaint. 10
The Remedy
Having found that Respondent committed a violation of section 7116(a)(1) and (5) of the Statute an analysis of the proper remedy in this matter is necessary.
The General Counsel and Charging Party maintain that both a status quo ante remedy and affirmative relief to insure that the interests of unit employees are protected is necessary in order to effectuate the purposes of the Statute.
Respondent urges that the remedy must be contained within the timeframe of the complaint. Respondent also maintains that since the MSPB decision in December 1979, it has taken no action as to establishment of procedures under 5 U.S.C. 4303 which impact on bargaining unit members. It further points out that there is no evidence of any ongoing national level authorized attempt by it to establish any critical elements or performance standards related to 5 U.S.C. 4303 [ v16 p1151 ] except through negotiation. Finally, the Respondent asserts that if there are unremedied situations involving those standards, they are de minimis.
In agreement with Respondent it is found that this record does not support by a preponderance of the evidence that an ongoing violation at the national level continued to occur based on the interim regulations. While there is evidence of certain numerical standards, etc., being instituted there is no evidence that these standards were directly related to the interim standards which are the subject of the instant complaint. Since the complaint was not amended prior to hearing to include such allegations it would be procedurally improper for me to fashion a broad remedy based on conduct by Respondent which was not pleaded or fully litigated. Inasmuch as the AFGE was aware or contends that such an ongoing violation exists it was incumbent on it to either amend the complaint prior to hearing or to file an amended charge based on Respondent's refusal to negotiate concerning standards not established pursuant to the OPM interim regulations.
However, I agree with the General Counsel and Charging Party that a status quo ante remedy is appropriate herein. There is sufficient evidence that the personnel actions complained of in the complaint were those based on the OPM interim regulations and there is evidence that most or all those personnel actions had been corrected by the MSPB in the Wells decision. Furthermore, Respondent assures that it has taken no further action based on those interim regulations. Although Respondent allegedly has eliminated the standards based on the interim regulations the possibility exists that some employees affected by Respondent's action remain. Moreover, Respondent in its brief admits that there may be other uncorrected actions which it would consider somehow consider de minimis. While there is this possibility and job duties and loss of pay of employees who might be affected by such action are involved it cannot be considered minimal. See United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112 (1982); see also Federal Correctional Institution, 8 FLRA No. 111 (1982). In these circumstances, the only appropriate remedy would, in my view, be a status quo ante remedy. Social Security Administration, supra. 11
Based on the foregoing, it is recommended that the Authority adopt the following Order. [ v16 p1152 ]
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Social Security Administration, Baltimore, Maryland:
1. Cease and desist from:
(a) Instituting a change in critical elements of performance standards pursuant to the interim regulations of the Office of Personnel Management without first notifying the American Federation of Government Employees, National Council of Social Security Payment Center Locals, or any other exclusive representative of its employees in an appropriate bargaining unit, and affording it the opportunity to meet and negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of such change.
(b) Refusing to negotiate with the American Federation of Government Employees, National Council of Social Security Payment Center Locals, or any other exclusive representative of its employees in an appropriate unit concerning the impact and implementation of any change in its critical elements or performance standards pursuant to the interim regulations of the Office of Personnel Management.
(c) 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) Repeal or revoke all regulations or memoranda related to the critical elements of performance standards established pursuant to the interim regulations of the Office of Personnel Management.
(b) Notify the American Federation of Government Employees, National Council of Social Security Payment Center Locals, or any other exclusive representative of its employees in an appropriate bargaining unit, and afford it the opportunity [ v16 p1153 ] to meet and negotiate, to the extent consonant with law and regulations, concerning the procedures and the impact and implementation of any such changes in critical elements of performance standards established pursuant to the interim regulations of the Office of Personnel Management.
(c) Bargain, upon request, with the American Federation of Government Employees, National Council of Social Security Payment Center Locals, or any other exclusive representative of its employees in an appropriate bargaining unit, to the extent consonant with law and regulations, concerning the impact and implementation of any change in the critical elements of performance standards established pursuant to the interim regulations of the Office of Personnel Management.
(d) Make whole any employees adversely affected by any performance standards established pursuant to the interim regulations of the Office of Personnel Management.
(e) Post at all its facilities copies of the attached notice marked "Appendix", on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commissioner and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material.
(f) Notify the 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.
ELI NASH, JR. Administrative Law Judge Dated: June 23, 1982 Washington, D.C.
[ v16 p1154 ]
APPENDIX
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 TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute a change in the critical elements of performance standards pursuant to the interim regulations of the Office of Personnel Management without first notifying the American Federation of Government Employees, National Council of Social Security Payment Center Locals, or any other exclusive representative of our employees in a appropriate bargaining unit, and affording it an opportunity to meet and negotiate, consonant with law and regulations concerning the impact and implementation of such change.
WE WILL NOT refuse to negotiate with the American Federation of Government Employees, National Council of Social Security Payment Center Locals, or any other exclusive representative of our employees in an appropriate bargaining unit, concerning the procedures and the impact and implementation of any changes in the critical elements of performance standards pursuant to the interim regulations of the Office of Personnel Management.
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 revoke or repeal all regulations or memorandum related to the critical elements of performance standards established pursuant to the interim regulations of the Office of Personnel Management.
WE WILL make all employees whole who were adversely affected by personnel actions taken pursuant to criteria related to critical elements of performance standards established under the interim regulations of the Office of Personnel Management. [ v16 p1155 ]
WE WILL notify the American Federation of Government Employees, National Council of Social Security Payment Center Locals, or any other exclusive representative of our employees in an appropriate unit, and afford it the opportunity to meet and negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of any changes in critical elements of performance standards made pursuant to the interim regulations of the Office of Personnel Management.
______________________________
(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, Federal Labor Relations Authority, Region III, who address is: 1111 18th Street, NW., Suite 700, Washington, D.C. 20036, and whose telephone number is: (202) 653-8452 [ v16 p1156 ]
FOOTNOTES
Footnote 1 The charge herein was filed by the American Federation of Government Employees, AFL-CIO, which was certified on August 30, 1979, as the exclusive representative of unit employees in a unit consolidation proceeding. The Respondent's conceded refusal to bargain in this case occurred prior to that date and was given in response to bargaining requests made by or on behalf of the constituent labor organizations which held exclusive recognition prior to the unit consolidation.
Footnote 2 Section 7116(a)(1) and (5) provides: 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)
Footnote 3 The Judge's Order has been modified, inter alia, to conform with the names of the parties alleged in the complaint.
Footnote 4 The original charge in this matter was filed by the National Council of Social Security Payment Center Locals, hereinafter referred to as the Council. The subsequent amended charge was filed after the consolidation of unions by the National Office of the American Federation of Government Employees against both the social Security Administration and the Office of Program Service Centers. The amended charge filed by the American Federation of Government Employees was filed on behalf of the Council and local Unions.
Footnote 5 5 U.S.C. Section 4301(3)
Footnote 6 5 U.S.C. Section 7513(a)
Footnote 7 5 U.S.C. Section 7701(c)(1).
Footnote 8 Based on the above finding, it is unnecessary to rule on Respondent's motion to strike and exclude testimony as boarding the scope of the complaint.
Footnote 9 Cf. Veterans Administration, Veterans Administration Hospital, Muskogee, Oklahoma, 3 A/SLMR 492; A/SLMR No. 301; Internal Revenue Service, Ogden Service Center, 7 A/SLMR 569; A/SLMR No. 864; Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Midwest Region, 8 A/SLMR No. 1070.
Footnote 10 With respect to the question of mootness since the MSPB decided that the interim regulations were invalid, it is found that the Union in the instant matter is properly pursuing its rights as exclusive representative.
Footnote 11 Based on the above, it is unnecessary to pass on Respondent's motion to strike certain testimony.