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05:0400(52)CA
The decision of the Authority follows:
5 FLRA No. 52
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, /1/ SOCIAL SECURITY
ADMINISTRATION, SOUTHEASTERN
PROGRAM SERVICE CENTER
BIRMINGHAM, ALABAMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2206, AFL-CIO
Charging Party
Case No. 4-CA-15
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER 11491, AS
AMENDED, BY UNILATERALLY IMPLEMENTING ON THE JOB BENEFIT
AUTHORIZER/CLAIMS AUTHORIZER TRAINEE PROCESS GUIDELINES (BAT/CAT
GUIDELINES) FOR EVALUATING TRAINEES, AND, FURTHER, BY IMPLEMENTING THE
GUIDELINES WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO NEGOTIATE
CONCERNING THE IMPACT AND IMPLEMENTATION THEREOF, AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF THE
REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF
FUNCTIONS IS IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE
FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
AS MODIFIED BELOW.
IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY
IMPLEMENTING THE BAT/CAT GUIDELINES, THE AUTHORITY DOES NOT CONSTRUE THE
ADMINISTRATIVE LAW JUDGE'S FINDING TO MEAN THAT ANY PROPOSAL CONCERNING
TRAINEE EVALUATION GUIDELINES WOULD BE WITHIN THE DUTY TO BARGAIN, I.E.,
CONSISTENT WITH APPLICABLE LAW AND REGULATIONS. RATHER, INASMUCH AS THE
ADMINISTRATIVE LAW JUDGE WAS NEITHER PRESENTED WITH NOR WAS HIS
DETERMINATION BASED UPON A SPECIFIC PROPOSAL WITH REGARD THERETO, IN THE
AUTHORITY'S VIEW, THE ADMINISTRATIVE LAW JUDGE MERELY RULED THAT
SPECIFIC PROPOSALS PERTAINING TO THE MATTER OF TRAINEE EVALUATION
GUIDELINES COULD BE DRAFTED WITHIN THE SCOPE OF THE DUTY TO BARGAIN
UNDER THE EXECUTIVE ORDER. /2/ ACCORDINGLY, IN THE CIRCUMSTANCES OF THE
INSTANT CASE, THE AUTHORITY FINDS, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER BY UNILATERALLY IMPLEMENTING THE BAT/CAT GUIDELINES.
HOWEVER, IN SO FINDING, THE AUTHORITY MAKES NO JUDGEMENT AS TO WHETHER
PROPOSALS RELATING TO THE MATTER OF TRAINEE EVALUATION GUIDELINES WOULD
BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE. SUCH A DETERMINATION
WOULD REQUIRE THE PRESENTATION OF PROPOSALS SUFFICIENTLY SPECIFIC AND
DELIMITED IN FORM AND CONTENT BY WHICH THE AUTHORITY COULD ASCERTAIN
WHETHER NEGOTIATIONS OVER SUCH PROPOSALS WOULD BE CONSISTENT WITH LAW,
REGULATIONS AND THE STATUTE. /3/
WITH RESPECT TO THE RECOMMENDED REMEDY, THE ADMINISTRATIVE LAW JUDGE
ORDERED RESPONDENT TO RESTORE THE TRAINEE EVALUATION GUIDELINES THAT
WERE IN EFFECT PRIOR TO THE UNILATERAL IMPLEMENTATION OF THE BAT/CAT
GUIDELINES ON OR ABOUT NOVEMBER 1, 1978; TO NEGOTIATE, UPON THE UNION'S
REQUEST, CONCERNING SUCH GUIDELINES; AND, PURSUANT TO SECTION
7118(A)(7)(B) OF THE STATUTE (5 U.S.C. 7118(A)(7)(B)), TO GIVE
RETROACTIVE EFFECT TO ANY BAT/CAT GUIDELINES SO NEGOTIATED BY THE
PARTIES. IN THE AUTHORITY'S VIEW, IT WOULD BE INAPPROPRIATE IN THE
CIRCUMSTANCES OF THIS CASE TO REQUIRE AN AFFIRMATIVE ACTION PURSUANT TO
A PROVISION CONTAINED IN THE STATUTE (I.E., GIVING RETROACTIVE EFFECT TO
A NEGOTIATED AGREEMENT) IN ORDER TO REMEDY RESPONDENT'S VIOLATION OF THE
EXECUTIVE ORDER. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED REMEDIAL ORDER IS HEREBY AMENDED, AS SET FORTH BELOW, TO
REQUIRE RESPONDENT TO RESCIND THE BAT/CAT GUIDELINES, NOTIFY THE UNION
OF ANY INTENDED CHANGES IN THE PREEXISTING TRAINEE EVALUATION STANDARDS,
AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON SUCH INTENDED
CHANGES TO THE EXTENT CONSONANT WITH LAW, REGULATIONS AND THE STATUTE.
/4/
ORDER /5/
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE,
THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION, SOUTHEASTERN PROGRAM SERVICE
CENTER, BIRMINGHAM, ALABAMA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO CONSULT, CONFER OR NEGOTIATE IN GOOD FAITH WITH THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, CONCERNING ON THE JOB BENEFIT AUTHORIZER/CLAIMS
AUTHORIZER TRAINEE PROCESS GUIDELINES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
(A) WITHDRAW THE "SOUTHEASTERN PROGRAM SERVICE CENTER, ON THE JOB
BENEFIT AUTHORIZER/CLAIMS AUTHORIZER TRAINEE PROCESS GUIDELINES, OCTOBER
1978," UNILATERALLY IMPLEMENTED ON OR ABOUT NOVEMBER 1, 1978, AND RETURN
TO THE STATUS QUO ANTE AS IT EXISTED PRIOR THERETO BY FORTHWITH
REINSTATING THE INFORMAL PRACTICES AND PROCEDURES OF THE SOUTHEASTERN
PROGRAM SERVICE CENTER WITH RESPECT TO BENEFIT AUTHORIZER/CLAIMS
AUTHORIZER TRAINEES AS THEY EXISTED PRIOR TO NOVEMBER 1, 1978.
(B) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2206, AFL-CIO, OF ANY INTENDED CHANGES IN THE PRACTICES AND PROCEDURES
WITH RESPECT TO BENEFIT AUTHORIZER/CLAIMS AUTHORIZER TRAINEES AS THEY
EXISTED PRIOR TO NOVEMBER 1, 1978, AND, UPON REQUEST, MEET AND CONFER IN
GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW, REGULATIONS AND THE
STATUTE, ON SUCH INTENDED CHANGES.
(C) POST AT ITS FACILITIES IN BIRMINGHAM, ALABAMA, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR, SOUTHEASTERN PROGRAM SERVICE CENTER, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION IV, 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., MARCH 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO CONSULT, CONFER, OR NEGOTIATE IN GOOD FAITH
WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206,
AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, CONCERNING ON THE JOB BENEFIT
AUTHORIZER/CLAIMS AUTHORIZER TRAINEE PROCESS GUIDELINES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL WITHDRAW THE "SOUTHEASTERN PROGRAM SERVICE CENTER, ON THE JOB
BENEFIT AUTHORIZER/CLAIMS AUTHORIZER TRAINEE PROCESS GUIDELINES, OCTOBER
1978," UNILATERALLY IMPLEMENTED ON OR ABOUT NOVEMBER 1, 1978, AND RETURN
TO THE STATUS QUO ANTE AS IT EXISTED PRIOR THERETO BY FORTHWITH
REINSTATING THE INFORMAL PRACTICES AND PROCEDURES OF THE SOUTHEASTERN
PROGRAM SERVICE CENTER WITH RESPECT TO BENEFIT AUTHORIZER/CLAIMS
AUTHORIZER TRAINEES AS THEY EXISTED PRIOR TO NOVEMBER 1, 1978.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2206, AFL-CIO, OF ANY INTENDED CHANGES IN THE PRACTICES AND PROCEDURES
WITH RESPECT TO BENEFIT AUTHORIZER/CLAIMS AUTHORIZER TRAINEES AS THEY
EXISTED PRIOR TO NOVEMBER 1, 1978, AND, UPON REQUEST, MEET AND CONFER IN
GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW, REGULATIONS AND THE
STATUTE, ON SUCH INTENDED CHANGES.
(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 OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IV,
WHOSE ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W.,
ATLANTA, GEORGIA 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DIVISION OF LABOR RELATIONS
SOCIAL SECURITY ADMINISTRATION
G-314
WEST HIGH RISE BUILDING
6401 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
FOR THE RESPONDENT
WILLIAM N. CATES, ESQUIRE
REGIONAL ATTORNEY
MATHILDE LORRAINE GENOVESE, ESQUIRE
ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
SUITE 501-NORTH WING
1776 PEACHTREE STREET, N.W.
ATLANTA, GEORGIA 30309
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
SECTION 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
XIV, PART 2411, ET SEQ. THE REFUSAL TO BARGAIN ASSERTED IN THIS
PROCEEDING COMMENCED ON, OR ABOUT, NOVEMBER 1, 1978, AND THE VIOLATION
ALLEGED, AS NOTED IN PARAGRAPH 9 OF THE COMPLAINT (G.C. EXH. 1(D)), IS
OF SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER, ALSO, REFERRED TO AS THE "ORDER"). SECTION 7135(B) OF THE
STATUTE SPECIFICALLY PROVIDES, IN PART, THAT "POLICIES, REGULATIONS, AND
PROCEDURES ESTABLISHED UNDER EXECUTIVE ORDER 11491...IN EFFECT ON THE
EFFECTIVE DATE OF THIS CHAPTER, SHALL REMAIN IN FULL FORCE AND
EFFECT..." ALTHOUGH A PRE-COMPLAINT CHARGE WAS FILED PURSUANT TO THE
ORDER WITH RESPONDENT ON NOVEMBER 8, 1978 (ALJ EXH. 1), A CHARGE /6/ WAS
FILED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206,
AFL-CIO (HEREINAFTER, ALSO, REFERRED TO AS "UNION") ON FEBRUARY 12,
1979, WITH THE AUTHORITY (G.C. EXH. 1(A)); AN AMENDED CHARGE WAS FILED
WITH THE GENERAL COUNSEL OF THE AUTHORITY ON APRIL 2, 1979 (G.C. EXH.
1(C); AND ON APRIL 10, 1979, PURSUANT TO SECTION 7118 OF THE STATUTE A
COMPLAINT AND NOTICE OF HEARING ISSUED (G.C. EXH. 1(D)), THE HEARING
BEING SCHEDULED FOR NOVEMBER 1, 1979; ON AUGUST 15, 1979, AN AMENDMENT
TO COMPLAINT AND NOTICE OF HEARING ISSUED (G.C. EXH. 1(D)) WHICH FIXED
THE TIME FOR COMMENCEMENT OF THE HEARING ON NOVEMBER 1, 1979,
INADVERTENTLY OMITTED IN THE NOTICE OF HEARING OF APRIL 10, 1979,
PURSUANT TO WHICH A HEARING WAS DULY HELD IN BIRMINGHAM, ALABAMA, ON
NOVEMBER 1, 1979, BEFORE THE UNDERSIGNED. ALL PARTIES WERE REPRESENTED
BY ABLE COUNSEL, WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE
ISSUES INVOLVED HEREIN; AND THE PARTIES WERE AFFORDED FULL OPPORTUNITY
TO PRESENT ORAL ARGUMENT AT THE CONCLUSION OF THE TESTIMONY. AT THE
CLOSE OF THE HEARING, AT THE REQUEST OF COUNSEL FOR THE GENERAL COUNSEL,
WITH THE CONCURRENCE OF COUNSEL FOR RESPONDENT, AND FOR GOOD CAUSE
SHOWN, DECEMBER 12, 1979 WAS FIXED AS THE DATE FOR MAILING POST-HEARING
BRIEFS AND COUNSEL FOR EACH PARTY HAS TIMELY SUBMITTED AN EXCELLENT AND
MOST HELPFUL BRIEF RECEIVED BY THIS OFFICE ON DECEMBER 14, 1979, WHICH
HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD,
INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS, CONCLUSIONS AND ORDER:
FINDINGS AND CONCLUSIONS
THE SOUTHEASTERN PROGRAM SERVICE CENTER, BIRMINGHAM, ALABAMA, IS ONE
OF SIX SOCIAL SECURITY ADMINISTRATION PROGRAM CENTERS. IN JUNE 10,
1969, THE NATIONAL OFFICE OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER
LOCALS, WAS RECOGNIZED BY THE DIRECTOR, BUREAU OF RETIREMENT AND
SURVIVORS' INSURANCE OF THE SOCIAL SECURITY ADMINISTRATION, AS THE
EXCLUSIVE REPRESENTATIVE OF ALL NON-SUPERVISORY EMPLOYEES, WITH CERTAIN
EXCLUSIONS, IN THE SOCIAL SECURITY ADMINISTRATION PROGRAM CENTERS.
LOCAL 2206 IS ONE OF THE LOCALS CONSTITUTING THE NATIONAL COUNCIL OF
SOCIAL SECURITY PAYMENT CENTER LOCALS; THERE IS A MULTI-CENTER
AGREEMENT, WHICH IS NOT AN ISSUE IN THIS PROCEEDING; AND THERE IS A
LOCAL AGREEMENT COVERING THE BIRMINGHAM CENTER, WHICH IS ALSO NOT AN
ISSUE IN THIS PROCEEDING.
THIS PROCEEDING CONCERNS PROPOSED GUIDELINES FOR BENEFIT AUTHORIZER
TRAINEE-CLAIMS AUTHORIZER TRAINEE IN THE BIRMINGHAM CENTER, SOMETIMES
EUPHEMISTICALLY REFERRED TO AS BAT/CAT GUIDELINES. FOR MANY YEARS PRIOR
TO 1970, ALL PROGRAM SERVICE CENTERS HAD USED NUMERIC STANDARDS. IN
1970, THE THEN DIRECTOR, DISCONTINUED NUMERIC STANDARDS IN ALL PROGRAM
SERVICE CENTERS AND AFTER 1970 THERE WAS NO FORMAL SYSTEM OR NUMERIC
STANDARDS EITHER FOR TRAINEE OR FOR JOURNEYMEN; HOWEVER, MR. CLARENCE
R. ELDER, NOW ASSISTANT DIRECTOR OF MANAGEMENT, TESTIFIED THAT WHEN HE
CAME TO BIRMINGHAM IN JANUARY, 1971, AS CHIEF, CLAIMS AUTHORIZATION
BRANCH, THERE WAS THEN AN INFORMAL SYSTEM OF ASSESSMENT OF TRAINEES WITH
MAJOR EMPHASIS ON THE AMOUNT OF TRAINEE'S OUTPUT AND THE QUALITY OF THE
TRAINEE'S PRODUCT. MR. ELDER FURTHER TESTIFIED THAT THERE HAD BEEN OVER
THE PERIOD SINCE 1971, AN INFORMAL SYSTEM OF AN ACCEPTABLE AMOUNT OF
WORK OF ACCEPTABLE QUALITY, ASSESSED BY MAINTAINING A RECORD OF THE
NUMBER OF CASES COMPLETED AND A RECORD OF ACCURACY OF THE PRODUCT;
HOWEVER, THERE WAS NO UNIFORMITY IN THAT INFORMAL SYSTEM IN THE
BIRMINGHAM CENTER AND MS. IMOGENE SHOEMAKER, PRESIDENT OF THE UNION WAS
NOT AWARE OF THE INFORMAL STANDARDS; INDEED, SHE TESTIFIED THAT AFTER
MR. MCKINNA DISCONTINUED NUMERIC STANDARDS, "THEY WERE NO LONGER SUPPOSE
(SIC) TO APPLY NUMERICAL STANDARDS TO THEM AT ALL." (TR. 137).
IN MAY, 1977, THE THEN DIRECTOR, BUREAU OF RETIREMENT AND SURVIVORS
INSURANCE, MR. PASQUALE F. CALIGIURI, ADVISED MR. DONALD W. JONES, THEN
PRESIDENT OF THE NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER
LOCALS, THAT THE BUREAU WAS ASKING EACH CENTER TO SUPPLEMENT ITS
INDIVIDUAL ASSESSMENT SYSTEM WITH AN ADDENDUM CONCERNING EMPLOYEES IN
TRAINEE POSITIONS (G.C. EXH. 2). SOME CENTERS, FOR EXAMPLE,
PHILADELPHIA, MOVED MORE RAPIDLY ON BAT/CAT GUIDELINES THAN OTHERS (SEE,
FOR EXAMPLE, G.C. EXH. 5). RESPONDENT'S "FIRST DRAFT PROPOSAL-JULY 21,
1978" (G.C. EXH. 3) WAS SUBMITTED TO THE UNION ON JULY 27, 1978, /7/
WITH REQUESTED COMMENTS BY JULY 31, 1978. THE TIME TO COMMENT WAS
ORALLY EXTENDED UNTIL AFTER AUGUST 4, 1978, WHICH MS. SHOEMAKER
CONFIRMED BY LETTER DATED AUGUST 3, 1978 (G.C. EXH. 4). SOME COMMENTS
WERE SUBMITTED AS AN ATTACHMENT TO MS. SHOEMAKER'S LETTER OF AUGUST 3,
1978. A MEETING WAS SCHEDULED FOR AUGUST 22, 1978. BY MEMORANDUM DATED
AUGUST 22, 1978 (G.C. EXH. 5), MS. SHOEMAKER ADVISED MR. GEORGE F.
SEDBERRY, LABOR MANAGEMENT RELATIONS SPECIALIST, INTER ALIA, "...THAT
AFTER EVALUATION OF TRAINING GUIDELINES ISSUED BY TWO OTHER PROGRAM
CENTERS REGARDING THESE SAME TWO IDENTICAL POSITIONS, LOCAL 2206 IS
FORCED TO ADOPT THE POSITION THAT ANY GUIDELINES ISSUED BY THE
SOUTHEASTERN PROGRAM SERVICE CENTER CANNOT BE MORE DEMANDING OR
NARROW
IN SCOPE THAN THOSE ISSUED BY OTHER PROGRAM SERVICE CENTERS FOR THESE
SAME TWO POSITIONS... REVIEW OF SOUTHEASTERN PROGRAM SERVICE CENTER
PROPOSALS SHOW CONCLUSIVELY THAT THE CURRENT PROPOSED MANAGEMENT
GUIDELINES ARE NOT IN LINE WITH THOSE ADOPTED BY TWO OTHER PROGRAM
SERVICE CENTERS. ACCORDINGLY, WE MUST TAKE EXCEPTIONS WITH YOUR
PROPOSALS. THESE EXCEPTIONS WILL BE PRESENTED TO YOU ORALLY TODAY AT
2:00 P.M., AUGUST 22, 1978. BASED ON THE ABOVE CIRCUMSTANCES, THE UNION
REQUESTS THAT A REVISED MANAGEMENT DRAFT BE DRAWN UP AND PRESENTED TO
THIS UNION PRIOR TO IMPLEMENTATION OF ANY TRAINING GUIDELINES. IF AT
THAT POINT THIS LOCAL SHOULD FIND THE REVISED GUIDELINES ARE
SUFFICIENTLY IN LINE WITH THOSE OF OTHER PROGRAM SERVICE CENTERS...THE
ISSUE WILL NOT BE ESCALATED TO A NATIONAL LEVEL FOR NEGOTIATIONS..."
(G.C. EXH. 5)
THE PARTIES MET ON AUGUST 22, 1978; THE UNION MADE BOTH AN ORAL
PRESENTATION AND A WRITTEN STATEMENT AS TO CERTAIN OF IT'S POSITIONS
(G.C. EXH. 6); AND RESPONDENT PREPARED A SECOND DRAFT, DATED AUGUST 25,
1978 (G.C. EXH. 7). /8/
THERE IS STRONG DISAGREEMENT AS TO WHEN THE SECOND DRAFT WAS RECEIVED
BY THE UNION. MS. SHOEMAKER TESTIFIED THAT SHE DID NOT RECEIVE IT UNTIL
OCTOBER 12, 1978, AS AN ATTACHMENT TO MR. SEDBERRY'S LETTER OF OCTOBER
12, 1978 (RES. EXH 2) AS A FINAL VERSION OF THE GUIDELINES. MR.
SEDBERRY TESTIFIED THAT HE PERSONALLY DELIVERED THE SECOND DRAFT TO THE
UNION OFFICE ON AUGUST 28, 29 OR 30, 1978; AND THAT THE DOCUMENT
ATTACHED TO HIS LETTER OF OCTOBER 12, 1978, WAS THE "SOUTHEASTERN
PROGRAM SERVICE CENTER ON THE JOB BENEFIT AUTHORIZER/CLAIMS AUTHORIZER
TRAINEE PROCESS GUIDELINES, OCTOBER 1978" (RES. EXH. 3). I HAVE
CAREFULLY EXAMINED THE RECORD AND CREDIT MR. SEDBERRY'S TESTIMONY AND
FIND THAT THE SECOND DRAFT WAS DELIVERED TO THE UNION ON AUGUST 28, 29
OR 30, 1978; AND THAT RESPONDENT'S EXHIBIT 3 WAS ATTACHED TO MR.
SEDBERRY'S MEMORANDUM OF OCTOBER 12, 1978 (RES. EXH. 2). I HAVE REACHED
THESE CONCLUSIONS FOR MANY REASONS, INCLUDING THE FOLLOWING: A) MR.
SEDBERRY WAS AN ENTIRELY CREDIBLE WITNESS AND TESTIFIED THAT HE
PERSONALLY DELIVERED GENERAL COUNSEL EXHIBIT 7, STATING:
"A. I PERSONALLY HAND DELIVERED THIS DOCUMENT.
"Q. WHO WOULD YOU HAVE DELIVERED IT TO, MR. SEDBERRY?
"A. I CANNOT SAY FOR CERTAIN...
"AT THIS POINT IN TIME THERE WERE TWO INDIVIDUALS IN OFFICE: MS.
SHOEMAKER WAS THE
PRESIDENT AND MR. POST THE EXECUTIVE VICE PRESIDENT.
"TO THE BEST OF MY RECOLLECTION, BOTH OF THOSE INDIVIDUALS WERE
PRESENT WHEN I VISITED THE
UNION OFFICE. I LEFT THE DOCUMENT WITH ONE OR THE OTHER. (TR.
119-120) MR. SEDBERRY FURTHER TESTIFIED THAT THE ATTACHMENT TO HIS
MEMORANDUM OF OCTOBER 12, 1978 (RES. EXH. 2) WAS RESPONDENT'S EXHIBIT 3
AND THAT HE PERSONALLY DELIVERED HIS MEMORANDUM OF OCTOBER 12, 1978, AND
THE ATTACHMENT, TO MS. SHOEMAKER OR TO MR. POST (TR. 122-123); B) MR.
ELDER, WHO I ALSO FOUND TO BE A WHOLLY CREDIBLE WITNESS, TESTIFIED THAT
WHEN HE APPROVED THE MEMORANDUM OF OCTOBER 12, 1978, THE DOCUMENT
ATTACHED WAS RESPONDENT'S EXHIBIT 3; C) MR. POST WAS NOT CALLED AS A
WITNESS; D) I DID NOT FIND MS. SHOEMAKER TO BE AN ENTIRELY RELIABLE
WITNESS, AS SHOWN, FOR EXAMPLE, BY HER TESTIMONY WHEREBY SHE ATTEMPTED
TO DISCREDIT HER OWN LETTER OF AUGUST 3, 1978; E) MR. SEDBERRY'S LETTER
OF OCTOBER 12, 1978, IS WHOLLY CONSISTENT WITH RESPONDENT'S EXHIBIT 3
HAVING BEEN ATTACHED, BUT IS NOT CONSISTENT WITH THE "SECOND DRAFT"
HAVING BEEN ATTACHED; NEVERTHELESS, MS. SHOEMAKER'S MEMORANDUM TO MR.
SEDBERRY OF OCTOBER 12, 1978 (G.C. EXH.9) MAKES NO REFERENCE TO "SECOND
DRAFT," RATHER THAN THE "FINAL VERSION" REFERRED TO BY MR. SEDBERRY.
ALTHOUGH I HAVE FOUND THAT RESPONDENT DID DELIVER ITS SECOND DRAFT TO
THE UNION ON AUGUST 28, 29, OR 30, 1978, I DO NOT AGREE WITH
RESPONDENT'S CONCLUSION THAT, BECAUSE THE UNION DID NOT RESPOND , IT WAS
FREE TO UNILATERALLY IMPLEMENT THE GUIDELINES, ON, OR AFTER, OCTOBER 16,
1978. AT THE OUTSET, IT MUST BE NOTED THAT RESPONDENT'S SECOND DRAFT
(G.C. EXH. 7) WAS SUBMITTED WITHOUT STATING ANY TIME FOR RESPONSE;
WITHOUT NOTICE AS TO WHEN RESPONDENT INTENDED TO PUT THE GUIDELINES INTO
EFFECT; AND WITHOUT NOTICE THAT RESPONDENT CONSIDERED THIS AS ITS FINAL
DETERMINATION OR DECISION. INDEED, THAT RESPONDENT DID NOT CONSIDER THE
DOCUMENT AS MORE THAN A SECOND DRAFT AND THAT IT CONTEMPLATED FURTHER
DISCUSSION IS SHOWN NOT ONLY BY THE DOCUMENT AND BY THE MANNER OF ITS
SUBMISSION, BUT, AS DISCUSSED MORE FULLY HEREINAFTER, BY RESPONDENT'S
LETTER OF OCTOBER 12, 1978 (RES. EXH. 2).
RESPONDENT HAS NEVER CONTENDED THAT THE GUIDELINES WERE NOT A
REQUIRED SUBJECT FOR BARGAINING. TO THE CONTRARY, THE DIRECTOR'S LETTER
OF MAY, 1977 (G.C. EXH. 2) INVITED "INPUT" FROM EACH LOCAL IN DEVISING
AN ADDENDUM TO EACH CENTER'S INDIVIDUAL ASSESSMENT SYSTEM CONCERNING
EMPLOYEES IN TRAINEE POSITIONS; AND RESPONDENT MET AND NEGOTIATED WITH
THE UNION ON AUGUST 22, 1978, AND SUBMITTED ITS SECOND DRAFT TO THE
UNION ON AUGUST 28, 29 OR 30, 1978. THE RECORD SHOWS THAT THE UNION
CONTEMPLATED AND EXPECTED FURTHER NEGOTIATIONS. DILATORY THOUGH THE
UNION WAS, IT WAS RESPONDENT'S FAILURE TO GIVE REQUIRED NOTICE, AS TO
TIME FOR RESPONSE, INTENDED DATE OF IMPLEMENTATION, OR AS TO INTENDED
FINALITY OF THE SECOND DRAFT WHICH PRECLUDED RESPONDENT'S UNILATERAL
IMPLEMENTATION OF THE GUIDELINES. FIRST, IN SOUTHEAST EXCHANGE REGION
OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ROSEWOOD WAREHOUSE,
COLUMBIA, SOUTH CAROLINA, A/SLMR NO. 656, 6 A/SLMR 237 (1976), THE
ASSISTANT SECRETARY, AS TO AN ITEM NEGOTIABLE UNDER SECTION 11(A) OF THE
ORDER, STATED:
"THEREFORE, THE RESPONDENT WAS OBLIGATED TO NOTIFY THE COMPLAINANT
PRIOR TO MAKING ITS
FINAL DETERMINATION OR DECISION TO CHANGE THE HOURS OF THOSE
EMPLOYEES, AND, UPON REQUEST, TO
MEET AND CONFER IN GOOD FAITH WITH THE COMPLAINANT..."
(6 A/SLMR AT 239). HERE, OF COURSE, THERE WAS NOTHING WHICH
INDICATED THAT RESPONDENT'S SECOND DRAFT CONSTITUTED RESPONDENT'S FINAL
DETERMINATION OR DECISION. NOR WOULD THE RECORD HAVE SUPPORTED A
CONTENTION THAT THE PARTIES HAD BARGAINED IN GOOD FAITH TO AN IMPASSE AS
OF THE DATE OF SUBMISSION OF THE SECOND DRAFT.
SECOND, IN U.S. ARMY CORPS OF ENGINEERS, PHILADELPHIA DISTRICT,
A/SLMR NO. 673, 6 A/SLMR 339 (1976), WHERE THE PARTIES HAVE BARGAINED TO
IMPASSE, THE ASSISTANT SECRETARY STATED,
"...AFTER BARGAINING TO AN IMPASSE, THAT IS AFTER GOOD FAITH
NEGOTIATIONS HAVE EXHAUSTED
THE PROSPECT OF CONCLUDING AN AGREEMENT, AGENCY MANAGEMENT DOES NOT
VIOLATE THE ORDER BY
UNILATERALLY IMPOSING CHANGES IN TERMS OR CONDITIONS OF
EMPLOYMENT...SO LONG AS APPROPRIATE
NOTICE IS GIVEN TO THE EXCLUSIVE REPRESENTATIVE AS TO WHEN THE
CHANGES ARE INTENDED TO BE PUT
INTO EFFECT IN ORDER TO AFFORD THE EXCLUSIVE REPRESENTATIVE AMPLE
OPPORTUNITY TO INVOKE THE
SERVICES OF THE PANEL AT A TIME PRIOR TO THE IMPLEMENTATION OF THE
CHANGES.
"...IN THE INSTANT CASE, HOWEVER, IT IS UNDISPUTED THAT COMPLAINANT
WAS NOT NOTIFIED PRIOR
TO THE INSTITUTION OF THE CHANGE...AND WAS NOT GIVEN OPPORTUNITY TO
INVOKE THE PROCEDURES OF
THE PANEL PRIOR TO THE RESPONDENT'S INSTITUTING A CHANGE IN EXISTING
TERMS OR CONDITIONS OF
EMPLOYMENT. UNDER THESE CIRCUMSTANCES, I FIND THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER BY UNILATERALLY INSTITUTING THE CHANGE HEREIN
WITHOUT PROVIDING THE
COMPLAINANT WITH REASONABLE NOTICE OF ITS INTENDED ACTION." (6 A/SLMR
AT 341). HERE THE PARTIES HAD NOT BARGAINED TO AN IMPASSE. THE RECORD
SHOWS THAT THE PARTIES HAD HAD ONLY ONE BARGAINING SESSION AND TOTALLY
FAILS TO SHOW THAT THE PARTIES HAD EXHAUSTED BARGAINING. IN FACT, THE
DETAILS OF THE BARGAINING THAT TOOK PLACE ON AUGUST 22, 1978, WERE
PRESENTED IN A MOST SUMMARY FASHION BY BOTH PARTIES AND THE CLEAR
IMPRESSION OF THAT MEETING WAS THAT IT WAS WHOLLY PRELIMINARY AND
CONSISTED LARGELY OF THE UNION PRESENTING ITS COMMENTS. NOTWITHSTANDING
THE UNION'S SPECIFIC CONCERN, STATED IN IT'S MEMORANDUM OF AUGUST 22,
1978 (G.C. EXH. 5), THE RECORD DOES NOT SHOW ANY BARGAINING ON THE
ASSERTED DIVERGENCE OF RESPONDENT'S PROPOSED GUIDELINES FROM GUIDELINES
NEGOTIATED BY TWO OTHER PROGRAM SERVICE CENTERS. THE MINUTES OF THE
AUGUST 22 NEGOTIATING SESSION, WHICH MS. SHOEMAKER TESTIFIED SHE DID NOT
RECEIVE UNTIL OCTOBER 30, 1978, WERE NOT OFFERED IN EVIDENCE.
NEVERTHELESS, I CONCLUDE FROM THE TESTIMONY OF MS. SHOEMAKER AND MR.
ELDER, THE ONLY PARTICIPANTS OF THE AUGUST 22 NEGOTIATION SESSION WHO
TESTIFIED, THAT NEGOTIATIONS HAD NOT BEEN COMPLETED ON AUGUST 22, 1978,
NOR, OF COURSE, HAD THE PARTIES BARGAINED IN GOOD FAITH TO AN IMPASSE.
CF., U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, A/SLMR
NO. 855, 7 A/SLMR 506 (1977). IT NECESSARILY FOLLOWS THAT IF AN AGENCY
MAY NOT UNILATERALLY IMPLEMENT A CHANGE IN EXISTING TERMS AND CONDITIONS
OF EMPLOYEMENT AFTER IMPASSE WITHOUT HAVING GIVEN NOTICE AS TO WHEN THE
CHANGES ARE INTENDED TO BE PUT INTO EFFECT, U.S. ARMY CORPS OF
ENGINEERS, PHILADELPHIA DISTRICT, SUPRA, MOST ASSUREDLY IT MAY NOT
UNILATERALLY IMPLEMENT A CHANGE IN EXISTING TERMS AND CONDITIONS OF
EMPLOYMENT HERE, WHERE IT HAS NEITHER GIVEN NOTICE AS TO WHEN THE
CHANGES WERE INTENDED TO BE PUT INTO EFFECT NOR HAD IT BARGAINED TO AN
IMPASSE. WHILE THE UNION DID NOT DILIGENTLY SEEK FURTHER BARGAINING
AFTER RECEIPT OF RESPONDENT'S SECOND DRAFT, DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF
RETIREMENT AND SURVIVORS INSURANCE, NORTHEASTERN PROGRAM SERVICE CENTER,
A/SLMR NO. 1170, 8 A/SLMR 1360 (1978), NORTHEASTERN PROGRAM SERVICE
CENTER, PRINCIPLE IS NOT APPLICABLE TO THE PRESENT CASE FOR THE REASON
THAT THE PARTIES HAD BEGUN BARGAINING; THE SECOND DRAFT REPRESENTED A
CONTINUATION OF NEGOTIATIONS; RESPONDENT, CONTRARY TO ITS PRIOR
PRACTICE DID NOT FIX ANY TIME FRAME FOR RESPONSE; AND, BECAUSE OF THE
ON-GOING NEGOTIATIONS, THE PRESENT CASE IS GOVERNED BY THE FORT MONMOUTH
AND PHILADELPHIA DECISIONS, SUPRA.
THIRD, RESPONDENT'S LETTER OF OCTOBER 12, 1978, WHICH TRANSMITTED
RESPONDENT'S EXHIBIT 3, FOR THE FIRST TIME DESIGNATED THIS DOCUMENT AS
ITS "FINAL VERSION" AND FOR THE FIRST TIME STATED THAT RESPONDENT
INTENDED TO IMPLEMENT "THESE GUIDELINES THE WEEK OF OCTOBER 16, 1978."
(RES. EXH. 2) /9/ SIGNIFICANTLY, MR. SEDBERRY'S MEMORANDUM FURTHER
STATED:
"IF YOU WISH TO DISCUSS ANY PART OF THE GUIDELINES WE WILL BE
PREPARED TO MEET WITH YOU AT
10 A.M. ON FRIDAY, OCTOBER 13. IF THIS TIME IS NOT CONVENIENT,
PLEASE NOTIFY MY
OFFICE." (RES. EXH. 2). NOTWITHSTANDING THAT MR. SEDBERRY
TRANSMITTED RESPONDENT'S "FINAL VERSION" AND STATED THAT RESPONDENT
EXPECTED TO IMPLEMENT THESE GUIDELINES "THE WEEK OF OCTOBER 16, 1978,"
HIS INVITATION TO THE UNION TO "DISCUSS ANY PART OF THE GUIDELINES"
CERTAINLY DOES NOT SHOW, OR IMPLY, ANY INTENT BY RESPONDENT TO THEREBY,
UNILATERALLY, IMPLEMENT THE GUIDELINES. NOT ONLY WAS RESPONDENT NOT
FREE TO UNILATERALLY IMPLEMENT THE GUIDELINES, FOR THE REASONS STATED
ABOVE, BUT RESPONDENT'S MEMORANDUM OF OCTOBER 12, 1978, DISCLAIMS ANY
INTENT TO DO SO.
OF COURSE, MS. SHOEMAKER DID, PROMPTLY, RESPOND ON OCTOBER 12, 1978,
AND IN HER MEMORANDUM OF OCTOBER 12, 1978, TO MR. SEDBERRY SHE, INTER
ALIA, INFORMED MR. SEDBERRY THAT OCTOBER 13 WAS NOT A CONVENIENT DATE;
STATED THAT THE GUIDELINES SHOULD NOT BE IMPLEMENTED DURING THE WEEK OF
OCTOBER 16; REQUESTED A MEETING NO EARLIER THAN OCTOBER 22; AND,
FINALLY, THAT THE UNION WOULD STATE ITS POSITION AT SAID MEETING "SO
THAT THE MATTER MAY BE SETTLED PRIOR TO THEIR IMPLEMENTATION." (G.C.
EXH. 9) RESPONDENT DID NOT RESPOND TO MS. SHOEMAKER'S MEMORANDUM OF
OCTOBER 12, 1978; HOWEVER IT DID NOT IMPLEMENT THE GUIDELINES THE WEEK
OF OCTOBER 16, 1978. ON OCTOBER 25, 1978, MS. SHOEMAKER WROTE A
MEMORANDUM TO THE DIRECTOR OF THE SOUTHEASTERN PROGRAM SERVICE CENTER,
MR. E. J. LISTERMAN, IN WHICH SHE STATED, IN PART, AS FOLLOWS:
"THIS CONSTITUTES MY FORMAL REQUEST TO MEET AND CONFER REGARDING THE
PROGRAM CENTER'S
PROPOSED ISSUANCE OF GUIDELINES ENTITLED 'ON THE JOB BENEFIT
AUTHORIZER/CLAIMS AUTHORIZER
TRAINEE PROCESS GUIDELINES'
"...THE PUBLICATION OF THESE GUIDELINES WILL HAVE SUCH AN ADVERSE
IMPACT ON MEMBERS OF THE
BARGAINING UNIT THAT NEGOTIATIONS ON CERTAIN POINTS MUST BE ENTERED
INTO, TO EFFECTUATE A
REALLY MEANINGFUL GUIDELINE.
"I REFER YOU TO MY LETTERS TO MR. GEORGE F. SEDBERRY DATED AUGUST 22,
1978 AND OCTOBER 12,
1978, DEALING WITH THE SUBJECT MATTER OF THESE GUIDELINES.
"MANAGEMENT SHOULD CEASE AND DESIST FROM FURTHER ACTIONS TO IMPLEMENT
THESE GUIDELINES
UNTIL NEGOTIATIONS HAVE BEEN COMPLETED..." (G.C. EXH. 10) RESPONDENT
DID NOT RESPOND TO MS. SHOEMAKER'S MEMORANDUM OF OCTOBER 25, 1978. ON,
OR ABOUT, NOVEMBER 1, 1978, RESPONDENT, WITHOUT NOTICE TO UNION,
IMPLEMENTED ITS BAT/CAT GUIDELINES. MS. SHOEMAKER TESTIFIED THAT SHE
LEARNED OF THE IMPLEMENTATION OF THE GUIDELINES "VIA THE GOOD OLD
GRAPEVINE" AFTER DISTRIBUTION TO THE MANAGERS "SOMEWHERE AROUND NOVEMBER
1ST." (TR. 46).
RESPONDENT'S CONTENTION THAT THE GUIDELINES DID NOT CHANGE PERSONNEL
POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS SINCE THE
GUIDELINES CONSTITUTED "A MERE FORMALIZATION OF ON-GOING, CONTINUING,
AND ESTABLISHED PRACTICES" (RESPONDENT'S BRIEF PP. 37) HAS BEEN
CAREFULLY CONSIDERED AND IS REJECTED. THE RECORD IS WHOLLY TO THE
CONTRARY. ALTHOUGH IT IS CLEAR THAT RESPONDENT HAD, AT LEAST SINCE
1971, USED AN INFORMAL SYSTEM OF ASSESSMENT OF TRAINEES WITH MAJOR
EMPHASIS ON THE AMOUNT OF TRAINEE'S AND THE QUALITY OF TRAINEE'S
PRODUCT, INCLUDING AN INFORMAL SYSTEM OF AN ACCEPTABLE AMOUNT OF WORK OF
ACCEPTABLE QUALITY, AS MR. ELDER TESTIFIED, IT IS EQUALLY CLEAR, AS MR.
ELDER FURTHER TESTIFIED, THAT THERE WAS NO UNIFORM SYSTEM OF ASSESSMENT.
THUS, HE STATED:
"A. WELL, THERE HAS BEEN CONCERN EXPRESSED BY MEMBERS OF MANAGEMENT,
BY EMPLOYEES, AND BY
THE UNION, CONCERNING THE FACT THAT WE NEEDED TO BE UNIFORM AND
CONSISTENT THROUGHOUT OUR 36
MODULES.
"I THINK IT WAS FELT BY MANAGEMENT, BY EMPLOYEES, AND IF I MIGHT
SPEAK, I THINK THE UNION
HAD A CONCERN, THAT THERE MIGHT BE INCONSISTENT DECISIONS MADE
CONCERNING PROGRESS IN THE
ABSENCE OF A MORE FORMAL GUIDELINES PROCEDURE TO AID AND ASSIST
SUPERVISORS IN MAKING THESE
KINDS OF DECISIONS." (TR. 85). NOR, OF COURSE, SINCE 1970, HAD THERE
BEEN ANY FIXED NUMERIC GUIDELINES EITHER FOR THE NUMBER OF CASES OR FOR
QUALITY, NOTWITHSTANDING THAT EACH SUPERVISOR ASSESSED WHAT HE, OR SHE,
CONSIDERED AN ACCEPTABLE AMOUNT OF WORK OF ACCEPTABLE QUALITY. THE
BAT/CAT GUIDELINES CONTAINED QUITE FIXED GUIDELINES. ACCORDINGLY, I
CONCLUDE THAT THE BAT/CAT GUIDELINES DID CHANGE EXISTING PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS BY,
INTER ALIA, ESTABLISHING FIXED AND UNIFORM NUMERIC GUIDELINES FOR
EVALUATION OF TRAINEES; AND BY THE FORMALIZATION OF UNIFORM AND
COMPREHENSIVE TRAINEE PROCESS GUIDELINES. BY MEMORANDUM DATED OCTOBER
12, 1978, UNION DID ADVISE RESPONDENT THAT OCTOBER 13, 1978, WAS NOT A
CONVENIENT DATE FOR THE PURPOSE OF CONFERRING; REQUESTED A DATE NOT
EARLIER THAN OCTOBER 22, 1978; AND STATED THAT THE PROPOSED GUIDELINES
SHOULD NOT BE IMPLEMENTED DURING THE WEEK OF OCTOBER 16, 1978. BY
MEMORANDUM DATED OCTOBER 25, 1918, UNION MADE A FURTHER FORMAL REQUEST
TO MEET AND CONFER AND AGAIN STATED THAT RESPONDENT SHOULD CEASE AND
DESIST FROM IMPLEMENTATION OF THE PROPOSED GUIDELINES UNTIL NEGOTIATIONS
HAD BEEN COMPLETED.
RESPONDENT DID NOT RESPOND EITHER TO THE MEMORANDUM OF OCTOBER 12,
1978, OR TO THE MEMORANDUM OF OCTOBER 25, 1978. RESPONDENT DID NOT MEET
WITH UNION; BUT, UNILATERALLY, ON OR ABOUT, NOVEMBER 1, 1978,
IMPLEMENTED ITS BAT/CAT GUIDELINES. BY SUCH UNILATERAL ACTION,
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. ALTHOUGH
UNION DID NOT REQUEST BARGAINING OVER IMPACT AND IMPLEMENTATION, SUCH A
REQUEST IS NOT NECESSARY AFTER THE FACT TO ESTABLISH A VIOLATION OF THE
ORDER. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN
SERVICE CENTER, AUSTIN, TEXAS, A/SLMR NO. 1142, 8 A/SLMR 1188 (1978).
ACCORDINGLY, RESPONDENT FURTHER VIOLATED SECTIONS 19(A)(1) AND (6) OF
THE ORDER BY ITS UNILATERAL IMPLEMENTATION OF ITS BAT/CAT GUIDELINES
WITHOUT AFFORDING UNION ANY OPPORTUNITY TO NEGOTIATE CONCERNING IMPACT
AND IMPLEMENTATION. /10/
HAVING FOUND THAT RESPONDENT VIOLATED THE ORDER BY ITS FAILURE AND
REFUSAL TO BARGAIN IN GOOD FAITH, BY ITS UNILATERAL IMPLEMENTATION OF
ITS PROPOSED BAT/CAT GUIDELINES WITHOUT HAVING BARGAINED IN GOOD FAITH
TO AN IMPASSE, AND BY ITS FAILURE AND REFUSAL TO BARGAIN ON IMPACT AND
IMPLEMENTATION OF BAT/CAT GUIDELINES, SUCH VIOLATIONS CAN BE REMEDIED
EFFECTIVELY ONLY BY RESTORING THE STATUS QUO ANTE AS IT EXISTED PRIOR TO
RESPONDENT'S UNILATERAL IMPLEMENTATION OF THE BAT/CAT GUIDELINES ON, OR
ABOUT, NOVEMBER 1, 1978, INCLUDING THE WITHDRAWAL OF THE BAT/CAT
GUIDELINES, WHICH IT UNILATERALLY IMPLEMENTED IN VIOLATION OF THE ORDER,
BY REINSTATING THE PRACTICES AND PROCEDURES WITH RESPECT TO TRAINEES AS
THEY EXISTED PRIOR THERETO AND BY REQUIRING, UPON DEMAND OF THE UNION,
PURSUANT TO SECTION 18(A)(7)(B) OF THE STATUTE, 5 U.S.C. SECTION
7118(A)(7)(B), THAT ANY RENEGOTIATED BAT/CAT GUIDELINES BE GIVEN
RETROACTIVE EFFECT TO NOVEMBER 1, 1978.
ORDER
PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. SECTION
7118(A)(7), AND SECTION 2423.25 OF THE INTERIM RULES AND REGULATIONS,
FED. REG., VOL. 44, NO. 147, JULY 30, 1979 (5 C.F.R. SECTION 2423.25),
THE AUTHORITY HEREBY ORDERS THAT DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, SOUTHEASTERN PROGRAM SERVICE
CENTER, BIRMINGHAM, ALABAMA, SHALL:
1. CEASE AND DESIST FROM:
A) REFUSING TO CONSULT, CONFER OR NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, CONCERNING ON THE JOB BENEFIT AUTHORIZER/CLAIMS
AUTHORIZER TRAINEE PROCESS GUIDELINES.
B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND OF THE
STATUTE:
A) WITHDRAW THE "SOUTHEASTERN PROGRAM SERVICE CENTER, ON THE JOB
BENEFIT AUTHORIZER/CLAIMS AUTHORIZER TRAINEE PROCESS GUIDELINES, OCTOBER
1978" UNILATERALLY IMPLEMENTED ON, OR ABOUT, NOVEMBER 1, 1978, AND
RETURN TO THE STATUS QUO ANTE AS IT EXISTED PRIOR THERETO BY FORTHWITH
REINSTATING THE INFORMAL PRACTICES AND PROCEDURES OF THE SOUTHEASTERN
PROGRAM SERVICE CENTER WITH RESPECT TO BENEFIT AUTHORIZER/CLAIM
AUTHORIZER TRAINEES AS THEY EXISTED PRIOR TO NOVEMBER 1, 1978.
B) ANY RENEGOTIATED AGREEMENT RELATING TO ON THE JOB BENEFIT
AUTHORIZER/CLAIMS AUTHORIZER TRAINEE PROCESS GUIDELINES SHALL, UPON
DEMAND OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206,
AFL-CIO, BE RETROACTIVE TO NOVEMBER 1, 1978.
C) POST AT ITS FACILITIES IN BIRMINGHAM, ALABAMA, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR, SOUTHEASTERN PROGRAM SERVICE CENTER, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
D) PURSUANT TO SECTION 2423.29 OF THE INTERIM RULES AND REGULATIONS,
NOTIFY THE REGIONAL DIRECTOR OF REGION 4 SUITE 501, NORTH WING, 1776
PEACHTREE STREET, N.W., ATLANTA, GEORGIA 30309, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 8, 1980
WASHINGTON, D.C.
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 THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO CONSULT, CONFER, OR NEGOTIATE IN GOOD FAITH
WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206, AFL-CIO,
THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, CONCERNING ON THE JOB BENEFIT AUTHORIZER/CLAIM
AUTHORIZER TRAINEE PROCESS GUIDELINES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL WITHDRAW THE "SOUTHEASTERN PROGRAM SERVICE CENTER, ON THE JOB
BENEFIT AUTHORIZER/CLAIMS AUTHORIZER TRAINEE PROCESS GUIDELINES, OCTOBER
1978," UNILATERALLY IMPLEMENTED ON, OR ABOUT, NOVEMBER 1, 1978, AND WE
WILL RETURN TO THE STATUS QUO ANTE AS IT EXISTED PRIOR THERETO BY
FORTHWITH REINSTATING THE INFORMAL PRACTICES AND PROCEDURES OF THE
SOUTHEASTERN PROGRAM SERVICE CENTER WITH RESPECT TO BENEFIT
AUTHORIZER/CLAIM AUTHORIZER TRAINEES AS THEY EXISTED PRIOR TO NOVEMBER
1, 1978.
WE WILL MAKE ANY RENEGOTIATED AGREEMENT RELATING TO ON THE JOB
BENEFIT AUTHORIZER/CLAIM AUTHORIZER TRAINEE PROCESS GUIDELINES, UPON
DEMAND OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206,
AFL-CIO, RETROACTIVE TO NOVEMBER 1, 1978.
(AGENCY OR ACTIVITY)
DATED:
BY:
DIRECTOR
SOUTHEASTERN PROGRAM SERVICE CENTER
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY 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 4 WHOSE
ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W.,
ATLANTA, GEORGIA 30309
--------------- FOOTNOTES$ ---------------
/1/ AS A CONSEQUENCE OF THE ESTABLISHMENT OF THE DEPARTMENT OF
EDUCATION, THE REMAINING PORTION OF THE DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE WAS DESIGNATED AS THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES.
/2/ SEE U.S. PATENT AND TRADEMARK OFFICE, 3 FLRA NO. 123 (1980).
/3/ IN VIEW OF THE FOREGOING CONCLUSION THAT THE RESPONDENT'S
UNILATERAL IMPLEMENTATION OF THE BAT/CAT GUIDELINES CONSTITUTED A
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER, THE
AUTHORITY FINDS IT UNNECESSARY TO REACH OR PASS UPON THE ADMINISTRATIVE
LAW JUDGE'S FURTHER FINDING THAT RESPONDENT ALSO VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY ITS FAILURE TO AFFORD THE UNION AN
OPPORTUNITY TO NEGOTIATE REGARDING THE IMPACT AND IMPLEMENTATION OF THE
GUIDELINES.
/4/ IN CONFORMITY WITH SECTION 901(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/5/ AS THE UNFAIR LABOR PRACTICE FINDING IS LIMITED SOLELY TO A
BARGAINING UNIT AT THE NEWLY DESIGNATED DEPARTMENT OF HEALTH AND HUMAN
SERVICES, THE REMEDIAL ORDER HEREIN IS SO DESIGNATED.
/6/ THE COMPLAINT FORM OF THE ASSISTANT SECRETARY WAS, IN FACT,
UTILIZED.
/7/ I GIVE NO CREDENCE TO MS. SHOEMAKER'S TESTIMONY (TR. 54) THAT
JULY 27 WAS A TYPOGRAPHICAL ERROR AND THAT SHE RECEIVED THE DOCUMENT ON
AUGUST 2, 1978. THE WHOLE TENOR OF THE LETTER IS TO THE CONTRARY; SHE
STATED THAT COMMENTS WERE REQUESTED BY JULY 31; THAT SHE FOUND IT
IMPOSSIBLE TO...PRESENT COLLECTIVE COMMENTS...WITHIN THE TIME FRAME
ALLOTED...;" BUT MADE NO SUGGESTION THAT THE TIME (JULY 31) HAD EXPIRED,
AS IT WOULD IF SHE RECEIVED THE DOCUMENT ON AUGUST 2. I CONCLUDE,
THEREFORE, THAT SHE RECEIVED THE FIRST DRAFT ON JULY 27, 1978, AS HER
LETTER STATES.
/8/ THE SECOND DRAFT, AS PREPARED AND AS SUBMITTED TO THE UNION HAD A
NOTE ATTACHED WHICH READ,
"REVISIONS AS RESULT OF CONSULTATION WITH THE LOCAL HAVE BEEN
UNDERSCORED FOR
REFERENCE. HOWEVER, UNDERSCORING ON PAGE 10 IS FOR EMPHASIS AND DOES
NOT REPRESENT A
REVISION." THIS NOTE, FOR CONVENIENCE OF COPYING, WAS OVER-PRINTED ON
THE LEFT HAND, LOWER CORNER OF GENERAL COUNSEL'S EXH. 7.
/9/ I AM FULLY AWARE THAT THE ONLY CHANGE RELATED TO THE COVER SHEET.
GENERAL COUNSEL EXHIBIT 7 DESIGNATED THE DOCUMENT AS "SECOND DRAFT,"
WHICH, OF COURSE, WAS DELETED FROM RESPONDENT EXHIBIT 3. NOT ONLY DID
RESPONDENT EXHIBIT 3 SHOW THE GUIDELINES AS "OCTOBER 1978," BUT
RESPONDENT'S EXHIBIT 2, AS NOTED ABOVE, STATED THIS "IS A FINAL VERSION"
WHICH RESPONDENT EXPECTED TO IMPLEMENT THE WEEK OF OCTOBER 16, 1978.
/10/ HERE, OF COURSE, UNION IN ITS MEMORANDA OF OCTOBER 12, AND 25,
1978, HAD, SPECIFICALLY, STATED THAT THE GUIDELINES SHOULD NOT BE
IMPLEMENTED UNTIL AFTER APPROPRIATE MEETING TO CONFER. HAVING SOUGHT A
MEETING, TO WHICH RESPONDENT DID NOT RESPOND, RESPONDENT WAS UNDER AN
OBLIGATION TO NOTIFY UNION PRIOR TO IMPLEMENTATION OF THE GUIDELINES,
CF., DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN
SERVICE CENTER, A/SLMR NO. 814, 7 A/SLMR 255 (1977).