[ v10 p172 ]
10:0172(36)CA
The decision of the Authority follows:
10 FLRA No. 36
OFFICE OF PROGRAM OPERATIONS
FIELD OPERATIONS
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
SECURITY DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION
Charging Party
Case No. 8-CA-382
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, ACCOMPANYING EXHIBITS AND BRIEFS
SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) /1/ OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) BY CONDUCTING FORMAL DISCUSSIONS ON
DECEMBER 12, 1979 AND JANUARY 17, 1980, WITHIN THE MEANING OF SECTION
7114(A)(2)(A) /2/ WITH A UNIT EMPLOYEE WITHOUT AFFORDING THE UNION AN
OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSION. THE RESPONDENT ADMITS
IT ACTED AS ALLEGED, BUT TAKES THE POSITION THAT IT HAD NO OBLIGATION TO
AFFORD THE UNION AN OPPORTUNITY TO BE PRESENT AT THE MEETINGS BECAUSE
THE LANGUAGE OF THE NEGOTIATED AGREEMENT CONSTITUTED A WAIVER OF THE
UNION'S RIGHT TO BE AN "OBSERVER" UNDER SUCH CIRCUMSTANCES.
THE UNDISPUTED FACTS AS STIPULATED BY THE PARTIES ARE AS FOLLOWS:
ON AUGUST 9, 1972, THE CHARGING PARTY WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN EMPLOYEES IN REGION IX (SAN FRANCISCO REGION)
UNDER THE JURISDICTION OF THE ASSISTANT REGIONAL COMMISSIONER, FIELD
OPERATIONS, SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE (THE PREDECESSOR TO THE DEPARTMENT OF HEALTH AND
HUMAN SERVICES). ON AUGUST 30, 1979, THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (THE UNION), WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE OF A NATIONAL CONSOLIDATED UNIT CONSISTING OF,
AMONG OTHERS, THE UNIT CERTIFIED IN 1972 AT THE RESPONDENT'S FACILITIES.
NO NATIONAL COLLECTIVE BARGAINING AGREEMENT AS YET EXISTS BETWEEN THE
UNION AND THE RESPONDENT, AND THEREFORE AS STIPULATED BY THE PARTIES IN
ACCORDANCE WITH SECTION 2422.2(H)(8) OF THE AUTHORITY'S RULES AND
REGULATIONS, THE TERMS AND CONDITIONS OF A PRE-CONSOLIDATION AGREEMENT
NEGOTIATED IN 1977 BETWEEN THE RESPONDENT AND THE CHARGING PARTY REMAIN
IN EFFECT. THE NEGOTIATED AGREEMENT CONTAINS THREE PROVISIONS
CONCERNING THE CONDUCT OF THE GRIEVANCE PROCESS:
ARTICLE 7, SECTION H. ANY EMPLOYEE SHALL HAVE THE RIGHT TO PRESENT
MATTERS OF CONCERN,
INCLUDING GRIEVANCES, TO MANAGEMENT, WITH OR WITHOUT THE PRESENCE OF
A UNION REPRESENTATIVE OR
OBSERVER. WHENEVER AN EMPLOYEE DESIRES TO PROCEED WITHOUT A
REPRESENTATIVE, HE SHALL STATE
HIS GRIEVANCE IN WRITING, WITH A COPY TO THE DISTRICT REPRESENTATIVE
OF THE COUNCIL.
ARTICLE 25, SECTION E. ANY EMPLOYEE OR GROUP OF EMPLOYEES IN THE
UNIT MAY PRESENT SUCH
GRIEVANCES TO THE REGION AND HAVE THEM ADJUSTED WITHOUT THE
INTERVENTION OF THE UNION, AS LONG
AS ADJUSTMENT IS NOT INCONSISTENT WITH THE TERMS OF THE AGREEMENT AND
THE UNION HAS BEEN GIVEN
OPPORTUNITY TO BE PRESENT AT THE ADJUSTMENT. AN EMPLOYEE MAY BE
REPRESENTED BY A THIRD PARTY
ONLY WITH THE WRITTEN PERMISSION OF THE UNION.
ARTICLE 25, SECTION G. REPRESENTATION: WHEN CHOSEN REPRESENTATIVE,
THE UNION AGREES TO
ASSIGN A UNION REPRESENTATIVE OF APPROPRIATE JURISDICTION TO HANDLE
THE GRIEVANCE DURING STEPS
1 AND 2 OF THIS PROCEDURE. TOP ELECTED UNION OFFICIALS SHALL NOT
ORDINARILY BECOME INVOLVED
IN GRIEVANCES DURING STEPS 1 AND 2. WHEN THERE IS A UNION
REPRESENTATIVE, HE SHALL RECEIVE
COPIES OF ALL CORRESPONDENCE.
ON OR ABOUT NOVEMBER 7, 1979, CAROLINE KNAUSS, A UNIT EMPLOYEE AT
RESPONDENT'S FACILITY, FILED A WRITTEN GRIEVANCE PURSUANT TO THE
NEGOTIATED AGREEMENT ALLEGING THAT HER ANNUAL PERFORMANCE EVALUATION DID
NOT ACCURATELY REFLECT HER PERFORMANCE DURING THE PAST APPRAISAL PERIOD,
AND REQUESTED THAT FIVE SPECIFIC ITEMS BE RAISED FROM A "D" RATING TO AN
"E" RATING. KNAUSS INDICATED "SELF" AS HER REPRESENTATIVE ON THE
GRIEVANCE FORMS. GAIL MANN, KNAUSS' FIRST LINE SUPERVISOR, REVIEWED THE
GRIEVANCE AT THE FIRST STEP OF THE THREE-STEP GRIEVANCE PROCEDURE, AND
RAISED KNAUSS' RATING ON ONE ITEM BUT DENIED THE RELIEF REQUESTED ON THE
OTHER FOUR. THERE WAS NO MEETING BETWEEN MANN AND KNAUSS AT THE FIRST
STEP OF THE GRIEVANCE PROCEDURE.
KNAUSS THEN PROCESSED HER GRIEVANCE TO THE SECOND STEP TO DISTRICT
MANAGER DELORES LOGAN, THE DECIDING OFFICIAL, ON DECEMBER 3, 1979. ON
OR ABOUT DECEMBER 12, 1979, KNAUSS AND LOGAN MET TO DISCUSS THE
GRIEVANCE AT THE SECOND STEP. AT THE MEETING, WHICH WAS ARRANGED BY
LOGAN, THE GRIEVANT MADE AN ORAL PRESENTATION, A WRITTEN SUMMARY OF
WHICH WAS MADE. ON DECEMBER 17, 1979, LOGAN SUBMITTED A WRITTEN REPLY
TO KNAUSS DENYING THE RELIEF REQUESTED, ENCLOSING THE SUMMARY OF THE
ORAL PRESENTATION.
ON OR ABOUT DECEMBER 31, 1979, KNAUSS SUBMITTED HER GRIEVANCE TO
WILLIAM YAMAMOTO, THE THIRD STEP DECIDING OFFICIAL AND THE AREA DIRECTOR
FOR RESPONDENT'S LOS ANGELES WEST AREA. ARTICLE 25, SECTION H, STEP 3,
PROVIDES THAT THE AREA DIRECTOR WILL ARRANGE FOR EITHER A CONFERENCE
WITH THE EMPLOYEE AND THE REPRESENTATIVE AT WHICH TIME AN ORAL
PRESENTATION OF THE GRIEVANCE CAN BE MADE, OR FOR A FACTFINDER IN LIEU
OF THE CONFERENCE. YAMAMOTO DESIGNATED SUSAN ARMINGTON, A MANAGEMENT
INTERN, TO ACT IN THE CAPACITY OF A FACTFINDER. A MEETING WAS HELD
BETWEEN ARMINGTON AND KNAUSS ON JANUARY 17, 1980, TO DISCUSS THE
PERFORMANCE RATINGS ON ITEMS 1 AND 9. ARMINGTON PREPARED A WRITTEN
SUMMARY OF THE CONVERSATION. ON OR ABOUT JANUARY 17, 1980, THE UNION
RECEIVED WRITTEN NOTIFICATION FROM THE RESPONDENT BY A LETTER DATED
JANUARY 15, 1980, THAT KNAUSS HAD FILED A THIRD STEP GRIEVANCE. ON OR
ABOUT JANUARY 25, 1980, ARMINGTON SUBMITTED HER FACTFINDING REPORT,
INCLUDING THE SUMMARY OF HER JANUARY 17, 1980, MEETING WITH KNAUSS, AND
RECOMMENDED THAT THE RELIEF REQUESTED BE DENIED. ON OR ABOUT FEBRUARY
4, 1980, YAMAMOTO SUBMITTED A WRITTEN REPLY DENYING RELIEF. EXCEPT FOR
THE LETTER RECEIVED JANUARY 17, THE UNION HAD NO NOTIFICATION OR
CORRESPONDENCE AS TO THE SECOND AND THIRD STEP GRIEVANCE MEETINGS FROM
THE RESPONDENT OR KNAUSS, NOR WAS IT REPRESENTED AT THE MEETINGS.
IT IS THE POSITION OF THE GENERAL COUNSEL AND CHARGING PARTY THAT THE
DECEMBER 12, 1979, AND JANUARY 17, 1980, GRIEVANCE MEETINGS CONSTITUTED
FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF THE
STATUTE ENTITLING THE UNION TO RECEIVE ADVANCE NOTICE AND AN OPPORTUNITY
TO BE PRESENT. THE GENERAL COUNSEL, IN ESSENCE, ARGUES THAT THE
MEETINGS WERE FORMAL DISCUSSIONS INVOLVING DISCUSSION OF A GRIEVANCE,
AND THAT THE LANGUAGE OF THE NEGOTIATED AGREEMENT AT ARTICLE 7, SECTION
H, OR ARTICLE 25, SECTIONS E OR G DID NOT CONSTITUTE A CLEAR AND
UNMISTAKABLE WAIVER OF THE UNION'S STATUTORY RIGHT TO RECEIVE NOTICE AND
AN OPPORTUNITY TO BE PRESENT AT THE MEETINGS OF DECEMBER 12, 1979, AND
JANUARY 17, 1980. WITH REGARD TO THE WAIVER, THE GENERAL COUNSEL
CONTENDS THAT SINCE THE AGREEMENT'S EFFECTIVE DATE WAS OCTOBER 21, 1977,
AND THE STATUTE BECAME EFFECTIVE JANUARY 11, 1979, THE UNION COULD NOT
BY CONTRACT HAVE RELINQUISHED RIGHTS LATER CREATED BY THE STATUTE.
IT IS THE RESPONDENT'S POSITION THAT IT DID NOT HAVE AN OBLIGATION TO
AFFORD THE UNION AN OPPORTUNITY TO BE PRESENT AT EITHER THE DECEMBER 12,
1979, OR THE JANUARY 17, 1980, MEETINGS. THE RESPONDENT ARGUES THAT THE
LANGUAGE OF ARTICLE 25, SECTION E, OF THE NEGOTIATED AGREEMENT PRECLUDED
INTERVENTION BY THE UNION IN "SELF-PROCESSED" GRIEVANCES EXCEPT AT THE
TIME OF "ADJUSTMENT" AND THAT THE DENIAL HEREIN OF A GRIEVANCE WAS NOT
AN "ADJUSTMENT." THE RESPONDENT ARGUES THAT THIS HAS IN FACT BEEN THE
PRACTICES AND MUTUALLY SANCTIONED COURSE OF CONDUCT BETWEEN THE PARTIES
SINCE THE INCEPTION OF THE CURRENT AGREEMENT AND AT ALL TIMES PRIOR
THERETO.
THE RESPONDENT FURTHER ARGUES THAT CONGRESS DID NOT INTEND SECTION
7114(A)(2)(A) TO GRANT ANY ADDITIONAL RIGHT TO THE UNION NOT PREVIOUSLY
GRANTED UNDER SECTION 10(E) OF EXECUTIVE ORDER 11491, AS AMENDED
(ORDER), AS MODIFIED BY SECTION 13 /3/ WITH REGARD TO "SELF-PROCESSED"
GRIEVANCES. ACCORDINGLY, RESPONDENT CONTENDS THAT THE NEGOTIATED
AGREEMENT WHICH, IN PART, RELIES ON AND RESTATES SECTION 13 LANGUAGE,
SURVIVED THE IMPLEMENTATION OF THE STATUTE PURSUANT TO SECTION
7135(A)(1) /4/ AND PRESENTS A CLEAR AND UNMISTAKABLE WAIVER OF ANY UNION
RIGHT TO BE PRESENT DURING THE GRIEVANCE PROCEDURE.
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED THE STATUTE BY
CONDUCTING FORMAL DISCUSSIONS ON DECEMBER 12, 1979, AND JANUARY 17,
1980, WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE WITH A
UNIT EMPLOYEE WITHOUT AFFORDING THE UNION THE OPPORTUNITY TO BE PRESENT.
SECTION 7114(A)(2)(A) OF THE STATUTE STATES THAT AN EXCLUSIVE
REPRESENTATIVE SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT ANY
FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE AGENCY AND
ONE OR MORE EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING
ANY GRIEVANCE. IN THE CIRCUMSTANCES OF THE INSTANT CASE, THE AUTHORITY
FINDS THE MEETINGS OF DECEMBER 12, 1979 AND JANUARY 17, 1980, TO BE
FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 7114(A)(2)(A). /5/ IN
THIS REGARD, THE MEETINGS AT ISSUE INVOLVED REPRESENTATIVES OF THE
ACTIVITY (THE DISTRICT MANAGER AND FACTFINDER DESIGNATED BY THE AREA
DIRECTOR, RESPECTIVELY) AND A UNIT EMPLOYEE. AS TO FORMALITY, THE
AUTHORITY NOTES SPECIFICALLY THAT THE MEETINGS WERE STRUCTURED IN
ACCORDANCE WITH THE SPECIFIC REQUIREMENTS OF THE NEGOTIATED GRIEVANCE
PROCEDURE AND THAT RECORDS OF THE MEETINGS WERE MADE AND COPIES GIVEN TO
KNAUSS. FURTHER, THE SUBJECT MATTER DISCUSSED AT SUCH MEETINGS
CONCERNED A GRIEVANCE FILED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE BY
A UNIT EMPLOYEE. /6/ THUS, THE RESPONDENT WAS OBLIGATED UNDER SECTION
7114(A)(2)(A) OF THE STATUTE TO GIVE THE UNION APPROPRIATE NOTICE AND
THE OPPORTUNITY TO BE REPRESENTED AT THE MEETINGS IN QUESTION. THIS IS
CONSISTENT WITH THE REQUIREMENTS OF SECTION 7121(B)(3)(B) OF THE STATUTE
WHICH PROVIDES THAT ANY NEGOTIATED PROCEDURE SHALL--
(B) ASSURE . . . AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE ON THE
EMPLOYEE'S OWN BEHALF,
AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
DURING THE GRIEVANCE
PROCEEDING(.)
READING SECTIONS 7114(A)(2)(A) AND 7121(B)(3)(B) TOGETHER, IT IS
CLEAR THAT CONGRESS INTENDED THAT NEGOTIATED GRIEVANCE PROCEDURES
ASSURE
THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT (REPRESENTED)
DURING FORMAL DISCUSSIONS OF A GRIEVANCE, SUCH AS THE DISCUSSIONS AT
ISSUE IN THIS CASE.
THE RESPONDENT ALLEGES, HOWEVER, THAT IN THE CIRCUMSTANCES OF THIS
CASE IT HAD NO OBLIGATION TO GIVE THE UNION APPROPRIATE NOTICE AND AN
OPPORTUNITY TO BE PRESENT AT THE MEETINGS AT ISSUE. THE RESPONDENT
BASED THIS ALLEGATION UPON THE LANGUAGE OF THE PARTIES' 1977 NEGOTIATED
AGREEMENT.
IN THIS REGARD, SECTION 7135(A)(1) OF THE STATUTE /7/ PERMITS THE
PARTIES TO AN AGREEMENT ENTERED INTO BEFORE THE EFFECTIVE DATE OF THE
STATUTE TO RENEW OR CONTINUE ITS TERMS IF THEY SO DESIRE. /8/ HOWEVER,
WHERE EITHER PARTY TO AN EXISTING AGREEMENT OBJECTS TO THE CONTINUATION
OF PROVISIONS WHICH ARE INCONSISTENT WITH THE REQUIREMENTS OF THE
STATUTE, SUCH OBJECTION REQUIRES THE PARTIES TO COMPLY WITH THE MANDATE
OF THE STATUTE. /9/ IN THE CIRCUMSTANCES OF THIS CASE, IT IS THE
OPINION OF THE AUTHORITY THAT THE UNION'S FILING OF AN UNFAIR LABOR
PRACTICE CHARGE IS, IN EFFECT, AN OBJECTION TO THE CONTINUATION OF THE
TERMS OF THE AGREEMENT WHICH PROVIDED THE UNION AN OPPORTUNITY TO BE
PRESENT ONLY AT THE "ADJUSTMENT" OF A GRIEVANCE. MOREOVER, THERE IS NO
EVIDENCE IN THE RECORD TO SUGGEST THAT THE PARTIES IN THE INSTANT CASE
MUTUALLY AGREED OR OTHERWISE INTENDED TO RENEW OR CONTINUE THE TERMS OF
THE NEGOTIATED GRIEVANCE PROCEDURE HERE IN ISSUE.
THE RESPONDENT HAS ADVANCED AN ARGUMENT THAT BY AGREEING TO ADOPT THE
EXACT LANGUAGE OF SECTION 13(A) OF EXECUTIVE ORDER 11491 (WHICH PROVIDED
FOR THE RIGHT OF AN INDIVIDUAL TO "SELF-PROCESS" A GRIEVANCE) INTO THE
NEGOTIATED AGREEMENT, THE UNION THEREBY WAIVED ITS RIGHTS UNDER SECTION
10(E) OF THE ORDER TO AN OPPORTUNITY TO BE REPRESENTED AT "FORMAL
DISCUSSIONS" WHICH OCCUR PURSUANT TO THE NEGOTIATED GRIEVANCE PROCEDURE
AND THAT SUCH WAIVER CONTINUED FOLLOWING THE EFFECTIVE DATE OF THE
STATUTE. THIS ARGUMENT CANNOT BE SUSTAINED. A WAIVER OF A RIGHT MUST
BE CLEAR AND UNMISTAKABLE AND WILL NOT BE FOUND MERELY FROM THE FACT
THAT AN AGREEMENT OMITS SPECIFIC REFERENCE TO A RIGHT OR THAT A LABOR
ORGANIZATION HAS FAILED IN NEGOTIATIONS TO OBTAIN PROTECTION WITH
RESPECT TO CERTAIN OF ITS RIGHTS. DEPARTMENT OF THE AIR FORCE, SCOTT
AIR FORCE BASE, ILLINOIS, 5 FLRA NO. 2(1981).
THUS, IN THE CIRCUMSTANCES OF THIS CASE, THE AUTHORITY FINDS NO
INDICATION THAT BY MERELY ADOPTING INTO THE NEGOTIATED AGREEMENT CERTAIN
LANGUAGE FROM ONE PROVISION OF THE EXECUTIVE ORDER, THE UNION WAIVED ANY
RIGHT WHICH IT MAY HAVE HAD UNDER OTHER PROVISIONS OF THE ORDER. NOR IS
THERE ANY OTHER INDICATION OF AN INTENTION ON THE PART OF THE UNION TO
WAIVE ANY OF ITS RIGHTS. IN ANY EVENT, FOLLOWING THE EFFECTIVE DATE OF
THE STATUTE, AS SHOWN SUPRA, THERE IS NO INDICATION OF MUTUAL AGREEMENT
OF THE PARTIES OR AN INTENTION ON THE PART OF THE UNION TO RENEW OR
CONTINUE THE TERMS OF THE AGREEMENT HERE AT ISSUE. IN FACT, THE UNION
HAS, IN EFFECT, OBJECTED TO SUCH CONTINUATION. THEREFORE, THE AUTHORITY
FINDS, CONTRARY TO THE CONTENTIONS OF THE RESPONDENT, THAT THE
RESPONDENT WAS OBLIGATED BY SECTION 7114(A)(2)(A) OF THE STATUTE TO GIVE
THE UNION NOTICE AND AN OPPORTUNITY TO BE REPRESENTED AT THE TWO
MEETINGS IN QUESTION. /10/
ACCORDINGLY, THE AUTHORITY FINDS THAT BY FAILING TO GIVE THE UNION
APPROPRIATE NOTICE OF THE MEETINGS IN QUESTION AND AN OPPORTUNITY TO BE
REPRESENTED, THE RESPONDENT VIOLATED SECTION 7116(A)(1), AND (8) OF THE
STATUTE. /11/
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE OFFICE OF PROGRAM OPERATIONS, FIELD
OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO GIVE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, APPROPRIATE NOTICE AND THE OPPORTUNITY TO BE REPRESENTED AT
FORMAL DISCUSSIONS BETWEEN EMPLOYEES IN THE BARGAINING UNIT AND
REPRESENTATIVES OF THE ACTIVITY CONCERNING GRIEVANCES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE OF 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) GIVE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
APPROPRIATE NOTICE AND THE OPPORTUNITY TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN EMPLOYEES IN THE BARGAINING UNIT AND REPRESENTATIVES
OF THE ACTIVITY CONCERNING GRIEVANCES.
(B) POST AT ALL FACILITIES OF THE OFFICE OF PROGRAM OPERATIONS, FIELD
OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 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 ASSISTANT REGIONAL COMMISSIONER AND SHALL BE POSTED AND MAINTAINED
BY HER 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 BY
RESPONDENT TO INSURE 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 VIII, 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., SEPTEMBER 30, 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 FAIL TO GIVE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, APPROPRIATE NOTICE AND THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL DISCUSSIONS BETWEEN EMPLOYEES IN THE BARGAINING
UNIT AND REPRESENTATIVES OF THE ACTIVITY CONCERNING GRIEVANCES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL GIVE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, APPROPRIATE NOTICE AND THE OPPORTUNITY TO BE REPRESENTED AT
FORMAL DISCUSSIONS BETWEEN EMPLOYEES IN THE BARGAINING UNIT AND
REPRESENTATIVES OF THE ACTIVITY CONCERNING GRIEVANCES.
(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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS 350
S. FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071, AND WHOSE
TELEPHONE NUMBER IS (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 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;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/2/ SECTION 7114. REPRESENTATION RIGHTS AND DUTIES
. . . .
(A)(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
AGENCY SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT . . . .
/3/ SECTION 13(A) OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDES:
(A) AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES.
THE COVERAGE AND SCOPE OF
THE PROCEDURE SHALL BE NEGOTIATED BY THE PARTIES TO THE AGREEMENT
WITH THE EXCEPTION THAT IT
MAY NOT COVER MATTERS FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTS
AND SO LONG AS IT DOES NOT
OTHERWISE CONFLICT WITH STATUTE OR THIS ORDER. IT SHALL BE THE
EXCLUSIVE PROCEDURE AVAILABLE
TO THE PARTIES AND THE EMPLOYEES IN THE UNIT FOR RESOLVING GRIEVANCES
WHICH FALL WITHIN ITS
COVERAGE. HOWEVER, ANY EMPLOYEE OR GROUP OF EMPLOYEES IN THE UNIT
MAY PRESENT SUCH GRIEVANCES
TO THE AGENCY AND HAVE THEM ADJUSTED, WITHOUT THE INTERVENTION OF THE
EXCLUSIVE
REPRESENTATIVE, AS LONG AS THE ADJUSTMENT IS NOT INCONSISTENT WITH
THE TERMS OF THE AGREEMENT
AND THE EXCLUSIVE REPRESENTATIVE HAS BEEN GIVEN OPPORTUNITY TO BE
PRESENT AT THE ADJUSTMENT.
/4/ SECTION 7135(A)(1) PROVIDES:
(A) NOTHING CONTAINED IN THIS CHAPTER SHALL PRECLUDE--
(1) THE RENEWAL OR CONTINUATION OF AN EXCLUSIVE RECOGNITION,
CERTIFICATION OF AN EXCLUSIVE
REPRESENTATIVE, OR A LAWFUL AGREEMENT BETWEEN AN AGENCY AND AN
EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, WHICH IS ENTERED INTO BEFORE THE EFFECTIVE DATE OF THIS
CHAPTER . . . .
/5/ SEE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VI,
ATLANTA, GEORGIA AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV,
ATLANTA, GEORGIA, 5 FLRA NO. 58(1981); NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA, 5 FLRA NO. 22(1981); INTERNAL REVENUE SERVICE
CENTER, FRESNO, CALIFORNIA, 7 FLRA NO. 54(1981), APPEAL DOCKETED, NO.
82-7092 (9TH CIR. FEB. 12, 1982).
/6/ SECTION 7103(A)(9) DEFINES "GRIEVANCE" AS ANY COMPLAINT;
(A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE;
(B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF ANY
EMPLOYEE; OR
(C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
(I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING
AGREEMENT; OR
(II) ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
ANY LAW, RULE, OR
REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)
/7/ NOTE 4, SUPRA.
/8/ INTERPRETATION AND GUIDANCE, 2 FLRA 273, 278(1979).
/9/ SEE, ID.
/10/ IN THESE CIRCUMSTANCES, THE AUTHORITY FINDS IT UNNECESSARY TO
INTERPRET THE MEANING OF THE TERM "ADJUSTMENT" CONTAINED IN THE
NEGOTIATED AGREEMENT.
/11/ BASED ON THE ABOVE OUTCOME, WHICH FULLY REMEDIES THE VIOLATION
FOUND HEREIN, THE AUTHORITY FINDS IT UNNECESSARY TO DECIDE WHETHER SUCH
CONDUCT ALSO VIOLATED SECTION 7116(A)(5) OF THE STATUTE.