[ v09 p909 ]
09:0909(124)CA
The decision of the Authority follows:
9 FLRA No. 124
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 8-CA-786
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS: /1/
AT ALL TIMES RELEVANT HEREIN, THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (THE UNION) HAS BEEN THE CERTIFIED EXCLUSIVE
REPRESENTATIVE OF A UNIT WHICH INCLUDES CERTAIN OF THE RESPONDENT'S LOS
ANGELES DISTRICT OFFICE (LADO) EMPLOYEES.
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) WHEN IT CONDUCTED "FEEDBACK" MEETINGS WITH UNIT EMPLOYEES
WHEREIN THE INPUT, OPINIONS, AND SENTIMENT OF THOSE EMPLOYEES CONCERNING
WORK PERFORMANCE GOALS WERE SOLICITED WITHOUT FIRST OBTAINING THE
CONSENT OF THE UNION.
ON OR ABOUT OCTOBER 7, 1980, ALEXANDER WOODS, A UNION REPRESENTATIVE
AT LADO, RECEIVED NOTICE FROM TWO SUPERVISORS IN THE
REDETERMIANTIONS/OPERATIONS (REDET/OP) UNIT OF A SCHEDULED MEETING TO
DISCUSS, AMONG OTHER THINGS, PERFORMANCE GOALS/STANDARDS WITH EMPLOYEES
ASSIGNED TO THAT UNIT. WOODS INFORMED ANOTHER UNION REPRESENTATIVE,
EDWARD BRONSON, OF THE PROPOSED MEETING. BRONSON, IN TURN, AND ON
BEHALF OF THE UNION, OBJECTED TO THE HOLDING OF THE "FEEDBACK" MEETING
WITH EMPLOYEES BECAUSE HE FELT THE UNION SHOULD BE THE PARTY TO OBTAIN
FEEDBACK FROM THEM. DESPITE THE UNION'S OBJECTIONS, THE FEEDBACK
MEETING WAS CONDUCTED ON OR ABOUT OCTOBER 8, 1980 BY THE TWO SUPERVISORS
WITH EMPLOYEES IN THE REDET/OP UNIT AT WHICH THE INPUT, OPINIONS, AND
SENTIMENT OF THE EMPLOYEES REGARDING WORK PERFORMANCE GOALS/STANDARDS
WERE SOLICITED. WOODS ATTENDED THE MEETING IN HIS CAPACITY AS UNION
REPRESENTATIVE. A SIMILAR MEETING WAS CONDUCTED IN THE SERVICE
REPRESENTATIVE (SR) UNIT ON OR ABOUT OCTOBER 20, 1980 DESPITE A SIMILAR
OBJECTION BY UNION REPRESENTATIVE BRONSON WHO HAD BEEN TOLD BY TWO
MANAGEMENT REPRESENTATIVES THAT THE SUPERVISORS INVOLVED IN THE MEETING
WOULD ONLY BE GETTING INPUT IN ORDER TO FORMULATE A PROPOSAL CONCERNING
PERFORMANCE GOALS/STANDARDS. BRONSON WAS IN ATTENDANCE AT THAT MEETING
IN HIS CAPACITY AS UNION REPRESENTATIVE. AS OF THE DATE OF THE
STIPULATION, NO NEW PERFORMANCE STANDARDS HAD BEEN ISSUED.
THE GENERAL COUNSEL CONTENDS THAT THE RESPONDENT'S ACTIONS
CONSTITUTED A REFUSAL TO BARGAIN WITH THE UNION IN DEROGATION OF THE
UNION'S STATUS AND RIGHTS AS EXCLUSIVE REPRESENTATIVE. THE RESPONDENT
CONTENDS THAT, BY HOLDING THE TWO MEETINGS IN QUESTION, IT WAS MERELY
EXERCISING ITS RIGHT UNDER 5 U.S.C. 4302(A)(2) ENACTED IN THE CIVIL
SERVICE REFORM ACT OF 1978 (SCRA) /2/ TO DEVELOP PERFORMANCE APPRAISAL
SYSTEMS WITH EMPLOYEE PARTICIPATION. THE RESPONDENT ALSO CONTENDS THAT
THE UNION'S INSISTENCE UPON BEING THE SOLE CONDUIT FOR INPUT RELATING TO
PERFORMANCE GOALS CONSTITUTES INTERFERENCE WITH THE RESPONDENT'S RIGHT
UNDER SECTION 7106 OF THE STATUTE TO ESTABLISH PERFORMANCE STANDARDS AND
TO DETERMINE ITS ORGANIZATION AND STAFFING PATTERNS AND MAINTAIN THE
EFFICIENCY AND EFFECTIVENESS OF ITS OPERATIONS. FURTHER, THE RESPONDENT
CONTENDS THAT THE MEETINGS HAD A DE MINIMIS IMPACT ON EMPLOYEES AND
THEREFORE CANNOT BE FOUND TO VIOLATE THE STATUTE.
THE AUTHORITY FINDS THAT THE RESPONDENT'S FAILURE AND REFUSAL TO GIVE
THE UNION AN OPPORTUNITY TO NEGOTIATE OVER THE MANNER IN WHICH
BARGAINING UNIT EMPLOYEES WOULD PARTICIPATE IN ESTABLISHING PERFORMANCE
STANDARDS CONSTITUTED A REFUSAL TO BARGAIN IN GOOD FAITH IN VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE STATUTE. THUS, AS THE AUTHORITY
STATED IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980), APPEAL DOCKETED,
NO. 80-1895 (D.C. CIR. AUG. 4, 1980): /3/
CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION 7101
AND OTHER SECTIONS OF
THE STATUTE, PERFORMANCE APPRAISAL SYSTEMS, APART FROM THE
IDENTIFICATION OF CRITICAL ELEMENTS
AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, ARE WITHIN THE DUTY
TO BARGAIN, TO THE EXTENT
THEY ARE CONSISTENT WITH LAW AND REGULATION. TO THE EXTENT THAT AN
AGENCY HAS DISCRETION WITH
RESPECT TO A GIVEN MATTER RELATED TO SUCH SYSTEMS THE AGENCY MUST
UPON REQUEST NEGOTIATE WITH
AN EXCLUSIVE REPRESENTATIVE OVER THAT MATTER. IN PARTICULAR, AS
NOTED PREVIOUSLY, SECTION
4302(A)(2) OF THE CSRA REQUIRES THAT PERFORMANCE APPRAISAL SYSTEMS
"ENCOURAGE EMPLOYEE
PARTICIPATION IN ESTABLISHING PERFORMANCE STANDARDS" BUT DOES NOT
SPECIFY THE FORM WHICH SUCH
EMPLOYEE PARTICIPATION DOES NOT SPECIFY THE FORM WHICH SUCH EMPLOYEE
PARTICIPATION MUST
TAKE. CONSEQUENTLY, AMONG OTHER SIGNIFICANT ASPECTS OF PERFORMANCE
APPRAISAL SYSTEMS, THE
MANNER IN WHICH A PARTICULAR AGENCY PROVIDES FOR SUCH EMPLOYEE
PARTICIPATION IS WITHIN THE
AGENCY'S DISCRETION AND, THEREFORE, WITHIN THE DUTY TO BARGAIN TO THE
EXTENT THAT IT WOULD NOT
PREVENT THE AGENCY FROM ESTABLISHING PERFORMANCE STANDARDS AND
CRITICAL ELEMENTS PURSUANT TO
ITS STATUTORY RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK. (FOOTNOTES
OMITTED.)
ACCORDINGLY, WHILE SECTION 4302 MAKES NO DISTINCTIONS BETWEEN AN
AGENCY'S RESPONSIBILITY TO ENCOURAGE PARTICIPATION BY EMPLOYEES WITHIN
UNITS OF EXCLUSIVE RECOGNITION AND UNREPRESENTED EMPLOYEES, THE STATUTE
REQUIRES AN AGENCY TO BARGAIN, UPON REQUEST, WITH THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES CONCERNING THE MANNER IN WHICH EMPLOYEE
PARTICIPATION IN ESTABLISHING PERFORMANCE STANDARDS SHALL BE PROVIDED.
IN THE INSTANT CASE, IT IS UNDISPUTED THAT THE RESPONDENT TWICE HELD
MEETINGS WITH UNIT EMPLOYEES TO OBTAIN "FEEDBACK" CONCERNING THE
ESTABLISHMENT OF PERFORMANCE STANDARDS DESPITE THE UNION'S EXPRESSED
OBJECTIONS TO THE HOLDING OF THE MEETINGS. BY SUCH CONDUCT, THE
RESPONDENT UNILATERALLY DETERMINED, THEREBY DENYING THE UNION AN
OPPORTUNITY TO BARGAIN ABOUT, THE MANNER IN WHICH EMPLOYEE PARTICIPATION
IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS WOULD BE PROVIDED. SUCH
CONDUCT THEREFORE CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) AND (5)
OF THE STATUTE. /4/
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, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO NEGOTIATE WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
RESPONDENT'S EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT
EMPLOYEES WILL PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
STANDARDS.
(B) 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 STATUTE:
(A) NOTIFY AND, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
BARGAIN UPON REQUEST WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
RESPONDENT'S EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT
EMPLOYEES WILL PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
STANDARDS.
(B) POST AT ITS FACILITIES LOCATED AT THE LOS ANGELES DISTRICT
OFFICE, LOS ANGELES, CALIFORNIA, COPIES OF THE ATTACHED NOTICE ON FORMS
TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT
OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, LOS ANGELES
DISTRICT OFFICE, AND SHALL BE POSTED AND MAINTAINED BY THE DIRECTOR 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 SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION VIII, FEDERAL LABOR
RELATIONS AUTHORITY, 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES,
CALIFORNIA, 90071, 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., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 NEGOTIATE WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF
OUR EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT EMPLOYEES WILL
PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL NOTIFY AND, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
BARGAIN UPON REQUEST WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR
EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT EMPLOYEES WILL
PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS.
(ACTIVITY)
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, FEDERAL LABOR RELATIONS AUTHORITY, REGION VIII, WHOSE ADDRESS
IS: 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA,
90071, AND WHOSE TELEPHONE NUMBER IS: (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ THE GENERAL COUNSEL HAS MOVED TO STRIKE CERTAIN PORTIONS OF THE
RESPONDENT'S BRIEF ON THE GROUNDS THAT THOSE PORTIONS PRESENT MATTERS
WHICH GO BEYOND THE FACTS STIPULATED BY THE PARTIES. THE RESPONDENT HAS
FILED AN OPPOSITION TO THE MOTION AS WELL AS A CROSS-MOTION TO STRIKE
AND DISMISS THE GENERAL COUNSEL'S MOTION TO STRIKE. IN ANY MATTER
SUBMITTED DIRECTLY TO AND ACCEPTED BY THE AUTHORITY FOR DECISION BASED
UPON A STIPULATION OF FACTS, THE AUTHORITY WILL CONSIDER ONLY FACTS
CONTAINED IN THE STIPULATION. ACCORDINGLY, THE AUTHORITY DENIES THE
GENERAL COUNSEL'S MOTION TO STRIKE, AND FINDS IT UNNECESSARY TO PASS
UPON THE RESPONDENT'S OPPOSITION AND CROSS-MOTION.
/2/ SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
(A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
SYSTEMS WHICH--
* * * *
(2) ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING PERFORMANCE
STANDARDS(.)
/3/ SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C. 3 FLRA
783(1980).
/4/ SUCH CONDUCT IS NOT RENDERED DE MINIMIS BY THE FACT THAT THE
RESPONDENT HAD NOT PROMULGATED PERFORMANCE STANDARDS AS OF THE DATE OF
THE PARTIES' STIPULATION OF FACTS.