23:0422(62)CA - HHS, SSA and SSA Field Operations, New York Region and AFGE -- 1986 FLRAdec CA
[ v23 p422 ]
23:0422(62)CA
The decision of the Authority follows:
23 FLRA No. 62
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION AND
SOCIAL SECURITY ADMINISTRATION FIELD
OPERATIONS, NEW YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 2-CA-50221
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The complaint alleged that the Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by refusing to bargain
over ground rules for scheduled negotiations between the Respondent and
the Charging Party (the Union) concerning the impact and implementation
of the Respondent's decision to relocate its Babylon, Long Island Branch
Office to Lindenhurst, Long Island.
II. Background and Judge's Conclusion
The basic facts are not in dispute, having been stipulated at the
hearing. By letter of February 8, 1985, the Union asked the Respondent
if it planned to move its Babylon Branch Office. The Respondent replied
that it planned to move the Office as of March 1, 1985. The Parties met
shortly before the move and identified several areas of disagreement.
The move took place as scheduled. Shortly after the move, the Union
requested to bargain over the impact and implementation of the move,
submitted ground rules proposals, and proposed to meet on these
proposals. The Respondent replied that it was unwilling to meet on
ground rules alone, since the parties' negotiated agreement required the
submission of substantive proposals prior to bargaining on anything,
including ground rules. The Union then filed the charge that led to the
complaint before the Judge in this case.
The Judge found that the Respondent's refusal to bargain over the
Union's ground rules proposals was not unlawful in the circumstances of
this case. The Judge observed that the Respondent gave proper notice of
the move to the Union, met with the Union to discuss preliminarily what
problems the move posed, and admitted its obligation to bargain over the
impact and implementation of the move. The Judge further found that the
issue raised by the Respondent -- that is, whether substantive proposals
must be submitted prior to bargaining -- is a long-standing, unresolved
issue between the parties. She then found that Article 4, Section 1 of
the parties' agreement does not distinguish between ground rules and
substantive proposals, but only provides that "proposals" shall be
submitted within a reasonable time after notice of a proposed change is
given, and prior to bargaining. Acknowledging that ground rules are an
integral part of the bargaining process, the Judge found that the
Respondent's interpretation was arguably correct, and that the dispute
therefore may be resolved through the grievance/arbitration machinery of
the parties' contract but not through the unfair labor practice
procedures of the Statute. She therefore concluded that the
Respondent's refusal to proceed to bargaining on ground rules until the
Union had submitted substantive proposals was not a violation of the
Statute, and recommended dismissal of the complaint.
III. Positions of the Parties
In its brief to the Judge, the Respondent argued that it was
justified in refusing to bargain about ground rules alone because
Atricle 4, Section 1 of the parties' agreement required the Union to
submit substantive proposals before the Respondent was obligated to
bargain concerning ground rules.
In exceptions to the Judge's Decision, the General Counsel argues
that ground rules are an integral part of the bargaining process, and
that the Respondent was thus obligated to bargain about ground rules
prior to the submission of proposals on substantive matters. The
General Counsel argues further that the Union did not waive its right to
insist on such ground rules bargaining when it agreed to the terms of
Article 4, Section 1 of the parties' collective bargaining agreement.
IV. Analysis
The Authority agrees with the Judge, who placed importance upon the
fact that the meaning of Article 4, Section 1 of the parties' agreement
has long been in dispute, and that the Respondent has consistently taken
the position, since the inception of the parties' agreement, that the
agreement obliges the Union to submit substantive proposals (as well as
ground rules proposals, if any) prior to bargaining. The Judge
acknowledged that ground rules are an integral part of the collective
bargaining process, about which management must bargain, citing
Authority precedent. She made a careful distinction in this case,
however. The Judge found that the Respondent did not refuse to bargain
on ground rules, but only insisted, consistent with its view of the
parties' collective bargaining agreement, that bargaining on ground
rules be deferred until the Union also submitted its substantive
proposals. The General Counsel's argument concerning waiver is thus
inapposite. Consistent with the Judge, we find that the Respondent
merely insisted that the Union comply with what the Respondent viewed as
a negotiated condition precedent to beginning negotiations on ground
rules, namely, the submission of substantive proposals concerning the
impact and implementation of the change.
We find, in essential agreement with the Judge, that this case
involves differing and arguable interpretations of the parties'
collective bargaining agreement. The Respondent relied upon what it
argued was a clear requirement of the parties' agreement that the
Union's substantive proposals must be submitted before it was required
to meet its obligation to bargain as to ground rules. In such cases
involving disputed interpretations of the parties' collective bargaining
agreement, the aggrieved party's remedy lies within the grievance and
arbitration procedures in the negotiated agreement rather than through
unfair labor practice procedures.
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the exceptions to that Decision, the positions of
the parties, and the entire record, and adopts the Judge's findings,
conclusions, and recommended Order dismissing the complaint. We
therefore conclude that the Respondent's refusal, based on its arguable
interpretation of the parties' National Agreement, to proceed to
negotiations on ground rules until the Union submitted substantive
proposals on the subject matter did not violate section 7116(a)(1) or
(5) of the Statute.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-50221 be, and it
hereby is, dismissed.
Issued, Washington, D.C., September 25, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No: 2-CA-50221
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION AND SOCIAL SECURITY
ADMINISTRATION FIELD OPERATIONS, NEW YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party/Union
Irving L. Becker and Melvin Steuerman,
For the Respondent
Stanley Chodos,
For the Charging Party
Jon R. Steen,
For the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge of unfair labor practices filed on March 26,
1985, by Stanley Chodos on behalf of the Charging Party, the Regional
Director, Region II, of the Federal Labor Relations Authority
(Authority) investigated and, on May 29, 1985, served the complaint
initiating this action.
The complaint alleges that Respondent violated Sections 7116(a)(1),
and (5) /1/ of the Statute by refusing to bargain over ground rules for
negotiations between Respondent and the Charging Party concerning the
impact and implementation of a management-initiated change relocating a
branch office.
On July 16, 1985, a hearing was held in New York City at which the
parties appeared and submitted a Stipulation of Facts with Joint
Exhibits 1 through 31. Jon Steen stated the position of the General
Counsel and Melvin Steuerman stated that of Respondent. The General
Counsel's proposed order and notice to be entered in this case was
received as General Counsel's Exhibit No. 1. Briefs were filed by the
General Counsel and Respondent on August 15. Based upon the record made
in this case and the briefs, I enter the following findings of fact and
conclusions of law and recommend the entry of the following order.
Findings of Fact
1. The charge herein was filed by the Charging Party on March 26,
1985, and a copy thereof was served upon the Respondent by certified
mail on March 27, 1985 (Joint Exhibit 1 to Stipulation).
2. On May 29, 1985, the General Counsel by the Regional Director for
Region II, acting pursuant to Section 7104(f)(2) of the Statute, and 5
CFR 2423.9(a)(4), issued a Complaint and Notice of Hearing (Joint
Exhibit 2 to Stipulation). On June 19, 1985, the Respondent served an
Answer to the Complaint on the Regional Director (Joint Exhibit 3 to
Stipulation).
3. At all times material herein, the Charging Party has been, and is
now, a labor organization within the meaning of Section 7103(a)(4) of
the Statute.
4(a). At all times material herein, the Department of Health and
Human Services, Social Security Administration (SSA) has been, and is
now, an agency within the meaning of Section 7103(a)(3) of the Statute.
(b). At all times material herein, SSA Field Operations, New York
Region has been, and is now, a constituent entity within the Department
of Health and Human Services, SSA, and an agent acting on its behalf.
5(a). At all times material herein, the following named persons
occupied the positions set forth below, opposite their names:
Peter DiSturco - Regional Commissioner, SSA, New York Region;
Alex W. Bussey - Assistant Regional Commissioner for Field
Operations, SSA, New York Region;
Michael DiSalvo - Manager, Babylon, New York Branch Office,
SSA;
Melvin Steuerman - Labor Relations Specialist, SSA, New York
Region.
(b). At all times material herein, the individuals named above in
paragraph 5(a), have been, and are now, supervisors or management
officials as defined in Section 7103(a)(10) and (11), respectively, of
the Statute, and have been, and are now, agents of the Respondent acting
on its behalf.
6(a). At all times material herein, the Charging Party has been, and
is now, the certified exclusive representative of a unit of certain
employees of Respondent, including all employees employed in the
District and Branch Offices of the SSA in the States of New York and New
Jersey, excluding all management personnel, professional federal
employees, employees engaged in personnel work in other than a purely
clerical capacity, guards and supervisors.
(b). At all times material herein, the Charging Party has delegated
to the National Council of SSA Field Operations Locals (Council)
authority to act as its representative for the purposes of collective
bargaining for certain of Respondent's employees, including employees in
the New York Region, and the Council's delegation has been recognized by
Respondent.
(c). At all times material herein, the American Federation of
Government Employees, Local 3369, AFL-CIO (AFGE Local 3369) has acted as
agent for the Council for the purposes of collective bargaining for
certain of Respondent's employees, including employees at the Babylon,
New York Branch Office. AFGE Local 3369's delegation has been
recognized by Respondent.
7. SSA, Field Operations, New York Region consists of all Branch and
District Offices of the Respondent in the States of New York and New
Jersey including the branch office located at Babylon, New York on Long
Island.
8. On February 7, 1985, Charging Party, by its agent Stanley Chodos,
Grievance Vice President for AFGE Local 3369, learned of a rumor that
the Babylon, New York Branch Office would be moved.
9. By letter dated February 8, 1985, the Charging Party, by its
agent Stanley Chodos, questioned the Respondent concerning the rumor of
the office relocation (Joint Exhibit 4 to Stipulation).
10. On February 21, 1985 the Respondent, by its agent Melvin
Steuerman, Labor Relations Specialist, notified Stanley Chodos by
telephone that the Babylon Branch Office would move on March 1, 1985.
Mr. Steuerman informed Mr. Chodos that consultations should take place
before negotiations were requested.
11. By letter dated February 21, 1985, the Respondent, by its agent
Alex Bussey, confirmed that the relocation of the Babylon Branch Office
was tentatively scheduled to begin on March 1, 1985 and that the office
would be open to the public at its new location on March 4, 1985. The
letter further provided that the move might be delayed. See Joint
Exhibit 5 to Stipulation.
12. The February 21, 1985 oral notification referred to above in
paragraph 10 was the first notification the Charging Party received from
Respondent regarding the relocation of the Babylon Branch Office. The
Babylon Branch Office had no local on-site representative of the
Charging Party.
13. On February 22, 1985 Stanley Chodos contacted Michael DiSalvo,
the Branch Manager in charge of the Babylon Branch Office, and scheduled
an appointment for February 28, 1985 for consultation over the office
relocation.
14. Pursuant to Article 30, Appendix F, Section I, of the parties'
collective bargaining agreement, generally, depending on the level
affected by the change, the parties consult prior to formal negotiations
being requested (Joint Exhibit 6 to Stipulation). The majority of
management proposed changes result in no negotiations taking place.
15. On February 28, 1985 Stanley Chodos and Michael DiSalvo, the
Babylon Branch Manager, met to consult over the Babylon office
relocation. Mr. Chodos and Mr. DiSalvo viewed both the old and new
office facilities during the consultation. Mr. Chodos informed Mr.
DiSalvo that he would subsequently request bargaining in writing.
16. By letter dated March 12, 1985, Mr. Chodos requested
negotiations over the relocation of the Babylon Branch Office and
pursuant to Section 7114 of the Statute requested copies of old and new
leases and any information on the exterminator service (Joint Exhibit 7
to Stipulation). That letter stated that ground rule proposals were
enclosed but none were contained with the letter. The ground rule
proposals were inadvertently omitted and by a second letter dated March
12, 1985 the Charging Party acknowledged that error and provided its
ground rule proposals (Joint Exhibit 8 to Stipulation).
17. By letter dated March 12, 1985, Mr. Chodos wrote to Mr. DiSalvo
and provided minutes of their February 28, 1985 consultation (Joint
Exhibit 9 to Stipulation). The minutes named six issues as being
unresolved by the labor-management consultation.
18. By letter dated March 19, 1985, Mr. DiSalvo informed Mr. Chodos
of his position that there were certain errors contained in Mr. Chodos's
consultation minutes (Joint Exhibit 10 to Stipulation).
19. The Babylon Branch Office moved on March 1, 1985 and the office
was open for business at the new location on March 4, 1985. Even though
the office has moved to its new location in Lindenhurst it is still
referred to as the Babylon Office.
20. The parties have stipulated that, at all times material herein,
including March 21, 1985, the Respondent was under an obligation to
bargain pursuant to the Statute regarding the impact and implementation
of the move of the Babylon branch office inasmuch as the move created
actual and reasonably foreseeable adverse impact of more than a de
minimis nature on bargaining unit employee working conditions.
21. On March 21, 1985, Mr. Chodos spoke with Mr. Steuerman by
telephone. Mr. Chodos informed Mr. Steuerman that Mr. Chodos and Sharon
Schwartz would be the Union's negotiators and that they would prepare
substantive proposals on the move on March 25, 1985 and that those
proposals would be provided when the parties met to negotiate ground
rules. Mr. Steuerman informed Mr. Chodos that Respondent would not
negotiate ground rules until the Union provided substantive proposals
pursuant to the Respondent's position that Article 4, Section 1 of the
parties' collective bargaining agreement requires the Union to submit
its impact and implementation proposals, not just ground rule proposals,
within a reasonable period after the notice of the proposed change. Mr.
Steuerman also informed Mr. Chodos that the information requested on
March 12, 1985, was in the process of being obtained.
22. By letter dated April 1, 1985 Mr. Bussey informed Mr. Chodos
that the Respondent would not take any action on the Charging Party's
ground rule proposals until the Union submitted its impact and
implementation proposals (Joint Exhibit 11 to Stipulation). The
Respondent's action was based on its position that Article 4, Section 1
of the parties' collective bargaining agreement requires the Union to
submit its impact and implementation proposals, not just ground rule
proposals, within a reasonable period after the notice of the proposed
change. In this letter Respondent also provided the information
requested by Mr. Chodos, to the extent that it existed.
23. The Respondent and AFGE Local 3369 have engaged in very few
negotiations. The majority of management proposed changes never result
in negotiations. Findings 25 through 32 detail the only instances of
negotiations between the Respondent and AFGE Local 3369 during the term
of the current agreement.
24. In May of 1982 AFGE Local 3369 requested negotiations over the
opening of the Glendale (Ridgewood) Branch office and the reorganization
of the Bushwick District Office. Negotiations took place in June
through July of 1982 with agreements being reached on July 25 and 30,
1982, respectively (Joint Exhibit 12 to Stipulation). The parties
negotiated a single set of ground rules -- prior to the submission of
substantive proposals -- reaching agreement on July 21, 1982 (Joint
Exhibit 13 of Stipulation). The Respondent was of the position that
these ground rules negotiations were under the old agreement, since the
bargaining request was made under that agreement. The effective date of
the current agreement is June 11, 1982.
25. In March 1984, AFGE Local 3369 requested negotiations over the
Boro Hall District Office relocation. In those negotiations proposed
ground rules were submitted on or about April 30, 1984 by AFGE Local
3369 without any substantive proposals being included (Joint Exhibit 14
to Stipulation). By letter dated May 10, 1984 the Respondent insisted,
pursuant to its interpretation of the contract, that substantive
proposals be submitted (Joint Exhibit 15 to Stipulation). Substantive
proposals were submitted on or about May 23, 1984 (Joint Exhibit 16 to
Stipulation). Negotiations ultimately did take place over ground rules
which went to impasse in June of 1984 which ultimately resulted in an
agreement on ground rules in December 1984. Negotiations over the
adverse impact of the relocation are still pending.
26. In October of 1983 AFGE 3369 requested negotiations over the
relocation of the South Bronx District Office. Ground rule proposals
alone were submitted with the bargaining request (Joint Exhibit 17 to
Stipulation). By letter dated November 1, 1983 the Respondent insisted,
pursuant to its interpretation of the contract, that substantive
proposals by submitted (Joint Exhibit 18 to Stipulation). By letter
dated November 7, 1983 AFGE Local 3369 informed Respondent that it did
not agree with the position that negotiations required the submission of
substantive proposals prior to the negotiation of ground rules but that
to expedite negotiations, due to the impending move, substantive
proposals would be, and were, provided (Joint Exhibit 19 to
Stipulation). The parties went to impasse on both ground rules and
substantive issues in May of 1984. Ground rules were finalized in May
1985; the negotiations on the substantive proposals were still pending.
27. In January 1984 AFGE Local 3369 requested negotiations on the
Respondent's Employee Counseling Service (Joint Exhibit 20 to
Stipulation). Ground rule proposals alone were submitted on March 8,
1984 (Joint Exhibit 21 to Stipulation). By letter dated March 27, 1984
Respondent responded to the letter of March 8, 1984 (Joint Exhibit 22 to
Stipulation). AFGE Local 3369 submitted its substantive proposals on
May 3, 1984 (Joint Exhibit 23 to Stipulation). No negotiations actually
took place on the employee counseling service as an unfair labor
practice charge was filed over the matter and no obligation to negotiate
was found.
28. In July of 1984 AFGE Local 3369 requested negotiations over the
elimination of telephone for certain work locations at the South Bronx
District Office (Joint Exhibit 24 to Stipulation). AFGE Local 3369
submitted both its ground rules and substantive proposals simultaneously
(Joint Exhibit 25 to Stipulation). No negotiations ever took place as
an unfair labor practice charge was filed over the matter and no
obligation to negotiate was found.
29. On August 20, 1984 AFGE Local 3369 requested negotiations over
the move of the Riverdale Contact Station. Both ground rule and
substantive proposals were submitted together (Joint Exhibit 26 to
Stipulation). These negotiations are pending with the assistance of
mediation. The ground rules were negotiated before the parties
proceeded to the substantive proposals.
30. The Jackson Heights Branch Office Smoking Policy was negotiated
in February and March of 1984. Both ground rule and substantive
proposals were submitted by AFGE at the same time. Ground rules were
negotiated first; the substantive agreement was then negotiated in
March of 1984.
31. The parties are currently involved in negotiations over the use
of a medical release form. Bargaining was requested by letter dated
December 31, 1984 (Joint Exhibit 27 to Stipulation). Ground rule
proposals were submitted on February 5, 1985 (Joint Exhibit 28 to
Stipulation). By letter dated February 19, 1985 the Respondent notified
AFGE Local 3369 that it would not act on the ground rule proposals until
substantive proposals were submitted (Joint Exhibiit 29 to Stipulation).
On April 8, 1985 AFGE Local 3369 submitted its substantive proposals
under protest (Joint Exhibit 30 to Stipulation). By letter dated April
11, 1985 AFGE Local 3369 informed Respondent that it disagreed with
Respondent's interpretation of Article 4 Section 1 (Joint Exhibit 31 to
Stipulation). The Respondent's conduct in regard to the medical release
form ground rule negotiations is the subject of a separate pending
unfair labor practice charge.
32. Neither the Charging Party nor AFGE Local 3369 has ever agreed
with Respondent's interpretation of Article 4, Section 1 of the parties'
collective bargaining agreement to the extent it would require
submission of substantive proposals rather than just ground rules prior
to bargaining.
Discussion and Conclusions
The General Counsel has not established, by the preponderance of the
evidence, /2/ that Respondent has engaged in the alleged unfair labor
practices, to wit, refusal to bargain over ground rules for negotiations
concerning the impact and implementation of the relocation of a branch
office.
It is undisputed that ground-rule negotiations are an integral part
of the collective bargaining process, both during formal contract
negotiations, and negotiations conducted as a result of a change in
conditions of employment made during the term of a collective bargaining
agreement. See Harry S. Truman Memorial Veterans Hospital, Columbia,
Missouri, 16 FLRA 944, 945 (1985). But this is not a case where an
agency has refused to negotiate ground rules. Here, the agency is
merely insisting that a ground rule negotiated in the parties' National
Agreement be followed, to wit:
Article IV Negotiations During the Term of the Agreement
Section 1 - General
The Administration will provide the Union reasonable advance
notice prior to implementation of changes affecting conditions of
employment subject to bargaining under 5 USC 71. Upon notice from
the Administration of a proposed change, the designated union
representative will notify the designated management
representative of its desire to consult and/or negotiate on the
change.
The Union will submit written proposals if applicable within a
reasonable period after notice of the proposed change. Bargaining
will begin as soon as possible, and will not exceed ten (10)
working days. All issues not resolved at that time may be
referred to the Federal Service Impasses Panel for resolution
under its rules.
See Page 7 of Joint Exhibit 6 to the Stipulation, emphasis added.
Here, the Respondent gave notice of the proposed change to the Union
on February 21, 1985. On February 28 the parties met to consult on the
change, in accordance with the contract, prior to formal negotiations
being requested. On March 12, the Union requested formal negotiations
and submitted proposals for ground rules. On March 21, and again on
April 1, management informed the Union that Respondent would not
negotiate ground rules until the Union provided substantive proposals
pursuant to its interpretation of Article 4 of the contract. The Union
does not agree that Article 4 requires the submission of substantive
proposals rather than just ground rules prior to bargaining, and has not
furnished them.
Of course, to the extent that the Union believes the interpretation
given to Article 4 by the Respondent is in error, it can resort to the
negotiated grievance and arbitration procedures provided for in Articles
24 and 25 of the contract. See pages 44-53 of Joint Exhibit 6 to the
Stipulation and compare Social Security Administration 15 FLRA 614, 622
(1984).
But, arguably, the Respondent has placed the correct interpretation
upon Article 4, which does not distinguish between ground rules and
substantive proposals -- it just says that "proposals" shall be
submitted within a reasonable time after notice of a proposed change is
given. That this Article is in the nature of a ground rule was
established by the Authority in Environmental Protection Agency, 16 FLRA
602, 613 (1984).
Although, as all agree, the Statute requires the parties to negotiate
ground rules before proceeding to the negotiation of substantive
proposals, the Statute also obligates the parties to "avoid unnecessary
delay." See Section 7114(b)(3) of the Statute. Respondent's
interpretation of Article 4 of the parties' National Agreement is
consonant with this obligation, in that negotiation of the substantive
proposals could follow immediately upon the negotiation of the ground
rules, in the event that the agreed-upon ground rules so allowed.
Thus, on this record, I am unable to conclude that Respondent
committed an unfair labor practice by refusing to proceed to ground-rule
negotiations until the Union complied with a reasonable interpretation
of a ground rule which the parties had negotiated in their National
Agreement. /3/
Ultimate Findings and Recommended Order
The General Counsel has not established, by the preponderance of the
evidence, that the Respondent has engaged in the unfair labor practices
alleged in the complaint.
Accordingly, it is here ORDERED that the complaint be, and hereby is,
dismissed.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: November 14, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) Section 7116 provides, in pertinent part, that:
(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; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . .
(2) This is the statutory burden of proof. See 5 U.S.C. Sections
7118 (7) and (8).
(3) Judge Samuel A. Chaitovitz has reached a similar conclusion as to
Article 4 of the parties' National Agreement in Department of Health and
Human Services, Social Security Administration, and Social Security
Administration, Office of Field Operations, New York Region, Case Nos.
2-CA-40051 and 2-CA-40102 (OALJ 85-114, July 26, 1985), wherein it was
alleged that Respondent had violated a settlement agreement by refusing
to bargain with the Union over ground rules until the Union submitted
both ground rules and substantive proposals. His decision is pending
before the Authority on exceptions.