[ v04 p584 ]
04:0584(79)NG
The decision of the Authority follows:
4 FLRA No. 79
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, COUNCIL OF
SOCIAL SECURITY DISTRICT
OFFICE LOCALS
Union
and
DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE,
SOCIAL SECURITY ADMIN-
ISTRATION, SAN FRANCISCO
REGION, BUREAU OF
DISTRICT OFFICE
OPERATIONS, SAN FRANCISCO,
CALIFORNIA
Agency
Case No. 0-NG-138
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3571
Union
and
DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE,
SOCIAL SECURITY ADMIN-
ISTRATION, SOUTH BEND
DISTRICT, INDIANA
Agency
Case No. 0-NG-199
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1395
Union
and
DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE,
SOCIAL SECURITY ADMIN-
ISTRATION, GREAT LAKES
PROGRAM SERVICE CENTER,
CHICAGO, ILLINOIS
Agency
Case No. 0-NG-217
CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY APPEALS
THESE CASES COME BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).
IN EACH OF THE ABOVE-CAPTIONED CASES, A SIMILAR ISSUE AROSE AS TO THE
EFFECT OF A UNIT CONSOLIDATION ON THE OBLIGATION OF THE AGENCY TO
BARGAIN WITH THE UNION AT THE LOCAL LEVEL. DISPOSITION OF EACH OF THE
THREE APPEALS DEPENDS UPON THE RESOLUTION OF A COMMON ISSUE. THEREFORE,
THE AUTHORITY'S ACTION WITH RESPECT TO EACH SUCH APPEAL IS EXPRESSED IN
THE INSTANT CONSOLIDATED DECISION WHICH APPLIES INDIVIDUALLY TO EACH OF
THE ABOVE-CAPTIONED CASES.
THE RECORD IN EACH OF THESE CASES SHOWS THAT THE NEGOTIABILITY
DISPUTE BEFORE THE AUTHORITY IN EACH CASE AROSE DURING NEGOTIATIONS
BETWEEN THE LOCAL PARTIES WHICH, IN WHOLE OR IN PART, CONCERNED THE
ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS, INCLUDING MATTERS
PERTAINING TO THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE
ESTABLISHMENT OF PERFORMANCE STANDARDS. THE RECORD IN EACH CASE ALSO
SHOWS THAT ON AUGUST 30, 1979, DURING THE TIME THE LOCAL PARTIES WERE
INVOLVED IN THOSE NEGOTIATIONS, THE WASHINGTON REGIONAL OFFICE OF THE
AUTHORITY CERTIFIED THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AS
THE EXCLUSIVE REPRESENTATIVE OF A CONSOLIDATED UNIT OF SOCIAL SECURITY
ADMINISTRATION EMPLOYEES WHICH INCLUDED THE UNITS INVOLVED IN EACH OF
THE INSTANT APPEALS.
MORE PARTICULARLY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, COUNCIL OF SOCIAL SECURITY ADMINISTRATION DISTRICT OFFICE
LOCALS AND DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, SAN FRANCISCO REGION, BUREAU OF DISTRICT OFFICE
OPERATIONS, SAN FRANCISCO, CALIFORNIA, CASE NO. 0-NG-138, THE UNION
REQUESTED THAT THE AGENCY BARGAIN ON, AND SUBMITTED PROPOSALS
CONCERNING, THE PERFORMANCE APPRAISAL SYSTEMS THEN UNDER DEVELOPMENT BY
THE SAN FRANCISCO REGION. THE AGENCY ALLEGED THAT THE UNION'S PROPOSALS
WERE OUTSIDE THE DUTY TO BARGAIN, AND THE UNION, ON OR ABOUT JULY 30,
1979, INSTITUTED THE SUBJECT APPEAL WITH THE AUTHORITY. SUBSEQUENTLY,
AS NOTED ABOVE, THE UNIT INVOLVED WAS CERTIFIED AS A PART OF THE
CONSOLIDATED UNIT. SIMILARLY, IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3571 AND DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, SOUTH BEND DISTRICT, INDIANA,
CASE NO. 0-NG-199, THE UNION AND THE AGENCY EXECUTED AN AGREEMENT, ON OR
ABOUT SEPTEMBER 3, 1979, AND SUBMITTED IT TO THE AGENCY HEAD FOR
APPROVAL PURSUANT TO SECTION 7114(C) OF THE STATUTE. THE AGENCY HEAD
DISAPPROVED CERTAIN PROVISIONS OF THE AGREEMENT PERTAINING TO
PERFORMANCE APPRAISAL SYSTEMS AND THE UNION, ON OR ABOUT NOVEMBER 1,
1979, INSTITUTED THE SUBJECT APPEAL WITH THE AUTHORITY. HOWEVER,
ACCORDING TO THE RECORD IN THE CASE, PRIOR TO THE EXECUTION OF THE
AGREEMENT BY THE LOCAL PARTIES, THIS UNIT, AS NOTED ABOVE, WAS CERTIFIED
AS PART OF THE CONSOLIDATED UNIT. IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1395 AND DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM SERVICE
CENTER, CHICAGO, ILLINOIS, CASE NO. 0-NG-217, THE UNION ON OR ABOUT
AUGUST 8, 1979, APPEARS TO HAVE REQUESTED FROM THE AGENCY WRITTEN
ALLEGATIONS AS TO THE NEGOTIABILITY OF VARIOUS PROPOSALS THEN UNDER
DISCUSSION BY THE LOCAL PARTIES. DURING THE TIME THIS REQUEST WAS UNDER
CONSIDERATION BY THE AGENCY, THE UNIT INVOLVED HEREIN, AS NOTED ABOVE,
ALSO WAS CERTIFIED AS A PART OF THE CONSOLIDATED UNIT.
THE AGENCY TAKES THE POSITION IN EACH OF THE ABOVE-CAPTIONED CASES
THAT THE NEGOTIABILITY DISPUTES THEREIN HAVE BEEN RENDERED MOOT BY THE
CERTIFICATION OF A CONSOLIDATED UNIT OF EXCLUSIVE RECOGNITION WHICH
INCLUDES THE UNITS INVOLVED IN EACH OF THE SUBJECT CASES. THAT IS, THE
AGENCY CONTENDS, AS OF AUGUST 30, 1979, THE DUTY TO BARGAIN WITH THE
UNION UNDER THE STATUTE EXISTS ONLY AT THE NATIONAL LEVEL, I.E., THE
PRESENT LEVEL OF RECOGNITION, AND, THUS, IT IS NO LONGER UNDER AN
OBLIGATION TO BARGAIN AT THE LEVEL OF THE LOCAL PARTIES HEREIN.
THE UNION, TAKES THE POSITION NONE OF THESE CASES IS MOOT, BUT EACH
IS PROPERLY BEFORE THE AUTHORITY UNDER SECTION 7117(C) OF THE STATUTE IN
THAT EACH APPEAL AROSE OUT OF A COLLECTIVE BARGAINING RELATIONSHIP IN
CIRCUMSTANCES WHERE AN AGENCY ALLEGED THAT CERTAIN MATTERS WERE NOT
WITHIN THE DUTY TO BARGAIN. THE UNION ARGUES THAT, NOTWITHSTANDING THE
UNIT CONSOLIDATION, THE OBLIGATION OF THE AGENCY TO BARGAIN WITH THE
UNION IN EACH OF THESE CASES STILL EXISTS. THAT IS, THE UNION CONTENDS
IT REPRESENTED THE EMPLOYEES PRIOR TO THE UNIT CONSOLIDATION AND
CONTINUES TO REPRESENT THOSE EMPLOYEES AFTER THE CONSOLIDATION AND,
THUS, THE ONLY CHANGED CIRCUMSTANCE IS THE CHANGE IN THE LEVEL OF
EXCLUSIVE RECOGNITION.
MOREOVER, IN CONNECTION WITH SAN FRANCISCO REGION, CASE NO.
0-NG-138, IN PARTICULAR, THE UNION STATES THE NEGOTIATIONS INVOLVED IN
THAT CASE TOOK PLACE PURSUANT TO A PROVISION OF THE EXISTING AGREEMENT
BETWEEN THE PARTIES WHICH ESTABLISHED PROCEDURES FOR NEGOTIATIONS DURING
THE TERM OF THE AGREEMENT. IN THIS REGARD, THE UNION ARGUES, SINCE AN
EXISTING AGREEMENT CONTINUES IN EFFECT ABSENT AN AGREEMENT TO THE
CONTRARY, THE AGENCY HAS A CONTRACTUAL OBLIGATION TO BARGAIN AT THE
LOCAL LEVEL IN THE SAN FRANCISCO REGION CASE NOTWITHSTANDING THE UNIT
CONSOLIDATION. SIMILARLY, IN CONNECTION WITH SOUTH BEND DISTRICT, CASE
NO. 0-NG-199, THE UNION CONTENDS THE AGREEMENT BETWEEN THE LOCAL
PARTIES, WHICH WAS EXECUTED SUBSEQUENT TO AUGUST 30, 1979, WAS
NEGOTIATED PURSUANT TO THE EXCLUSIVE RECOGNITION WHICH EXISTED AT THE
LOCAL LEVEL PRIOR TO THE UNIT CONSOLIDATION AND THUS REMAINS IN EFFECT
DESPITE THAT CONSOLIDATION.
THE CONTENTIONS OF THE PARTIES IN EACH OF THESE APPEALS FOCUS ON
WHETHER, SUBSEQUENT TO THE UNIT CONSOLIDATION, A BARGAINING OBLIGATION
EXISTS AT THE LOCAL LEVEL. THAT IS, THE ESSENCE OF THE PARTIES' DISPUTE
IN THESE APPEALS CONCERNS THE EXISTENCE OF A DUTY TO BARGAIN IN THE
CIRCUMSTANCES INVOLVED AND NOT WHETHER THE PROPOSALS OR PROVISIONS
THEMSELVES VIOLATE LAW OR REGULATION. THE PROPER FORUM IN WHICH TO
RAISE THESE ISSUES IS NOT A NEGOTIABILITY APPEAL UNDER SECTION 7117(C),
BUT WOULD BE AN UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION
7118 OF THE STATUTE. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2879 AND SOCIAL SECURITY ADMINISTRATION, SAN DIEGO,
CALIFORNIA, 2 FLRA NO. 93(1980). CF. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS
STATION, CONCORD, CALIFORNIA, 2 FLRA NO. 19(1979) AND NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363 AND HEADQUARTERS, U.S. ARMY
GARRISON, YONGSAN, KOREA, 2 FLRA NO. 50(1979).
ADDITIONALLY, IN CONNECTION WITH SAN FRANCISCO REGION, CASE NO.
0-NG-138, TO THE EXTENT THAT THE DISPUTE BETWEEN THE PARTIES OVER THE
EFFECT OF AN EXISTING AGREEMENT IN THE CIRCUMSTANCES PRESENTED INVOLVES
A QUESTION OF CONTRACT INTERPRETATION, THE PROPER FORUM IN WHICH TO
RESOLVE SUCH AN ISSUE WOULD BE PURSUANT TO WHATEVER PROCEDURES THE
PARTIES THEMSELVES HAVE ADOPTED FOR SUCH PURPOSES THROUGH SUCH
AGREEMENT. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD,
CALIFORNIA, 2 FLRA NO. 19(1979) AND NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-62 AND UNITED STATES ARMY, DUGWAY PROVING GROUNDS,
DUGWAY, UTAH, 3 FLRA NO. 107(1980).
BASED ON THE FOREGOING, THE UNION'S APPEALS IN EACH OF THE
ABOVE-CITED CASES DO NOT PRESENT ISSUES WHICH THE AUTHORITY CAN
APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION 7117 OF THE STATUTE AND
PART 2424 OF ITS RULES AND REGULATIONS. ACCORDING, IT IS ORDERED THAT
EACH OF THE AFOREMENTIONED APPEALS IS HEREBY DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDINGS HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:
MR. RONALD D. KING, DIRECTOR
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVE., N.W.
WASHINGTON, D.C. 20005
MR. HERBERT C. CREECH
LABOR RELATIONS OFFICER
DIVISION OF LABOR RELATIONS
SOCIAL SECURITY ADMINISTRATION
ROOM 2218, WEST HIGH RISE BUILDING
6401 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
MR. HOWARD W. J. CLUSTER
DIRECTOR, LABOR RELATIONS STAFF
OFFICE OF PROGRAM SERVICE CENTERS
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND 21235
HONORABLE PATRICIA ROBERTS HARRIS
SECRETARY OF HEALTH AND HUMAN SERVICES
WASHINGTON, D.C. 20201