[ v23 p807 ]
23:0807(104)CA
The decision of the Authority follows:
23 FLRA No. 104
Case No. 6-CA-785
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
DALLAS REGION, DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL COUNCIL
OF SOCIAL SECURITY ADMINISTRATION-
FIELD OPERATIONS LOCALS
Charging Party
Case No. 6-CA-1034
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
McALLEN DISTRICT OFFICE, McALLEN, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3388, AFL-CIO
Charging Party
Case Nos. 6-CA-1053
6-CA-1053-1
6-CA-1054
6-CA-1055
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
EL PASO DISTRICT OFFICE, EL PASO, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2991, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Cases
This consolidated proceeding is before the Authority on exceptions
filed by the Respondents and the General Counsel to the attached
Decision of the Administrative Law Judge. The issues in this proceeding
involve the promulgation of a "Personnel Guide for Supervisors" (PGS) by
the Dallas Region of the Social Security Administration, Department of
Health and Human Services, the Respondent in Case No. 6-CA-785. It was
alleged in that case that the Dallas Region violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) by promulgating the PGS without affording the exclusive
representative of its employees an appropriate opportunity to bargain
concerning its contents. It is alleged in Case No. 6-CA-1034 and Case
Nos. 6-CA-1053 -- 1055, respectively, that the McAllen District Office
and El Paso District Office violated various provisions of the Statute,
set forth below, by their conduct in implementing the PGS upon its
receipt from the Dallas Region.
II. Background
The exclusive representative, American Federation of Government
Employees, AFL-CIO, National Council of Social Security
Administration-Field Operations Locals (AFGE National Council),
represents a nationwide consolidated unit of nonprofessional employees
of the Social Security Administration in Field Operations. The unit
encompasses employees in offices of the Dallas Region, including
employees at the McAllen and El Paso District Offices. The AFGE
National Council represents employees in the unit at the national level.
For more localized matters, it provides for representation through
Regional Vice Presidents and local union affiliates; for example, at
the McAllen District Office by American Federation of Government
Employees, Local 3388, AFL-CIO, and at the El Paso District Office by
American Federation of Government Employees, Local 2991, AFL-CIO.
In 1980 the Dallas Region promulgated the PGS. It was intended to
provide a framework under which management officials of sub-offices of
the Dallas Region would establish performance goals for employees,
provide measures for documenting employee performance, and provide
counselling to employees regarding their performance. The PGS was
prepared by collecting and consolidating various policies which at least
in substantial part had existed in written form in certain other guides,
manuals and directives.
The PGS was forwarded to sub-offices for action, including the
Region's McAllen and El Paso District Offices. Upon receipt of the PGS,
the management officials in the sub-offices were to consult with their
employees and prepare employee performance goals and employee
performance accountability plans using quantitative measures based on
the character of the work performed in their offices and the work
actually performed by employees in their official positions. These
actions were taken by the McAllen and El Paso District Offices, and the
McAllen District Office reached the point of forwarding its draft plans
to the Dallas Region for review and comment and having the plans
returned for further action.
III. Case No. 6-CA-785 (Dallas Regional Office)
A. The Judge's Findings and Conclusions
The Judge found that the Dallas Region had provided advance notice of
the PGS and an opportunity to negotiate concerning its contents to the
AFGE National Council Vice President for the Dallas Region. In response
to the contention that the PGS should have been elevated to the national
level for negotiations at that level, the Judge noted that bargaining at
the national level is necessary where exclusive recognition is at that
level, but that the parties at the level of exclusive recognition may
agree to authorize bargaining below that level as they deem appropriate.
She found that the parties herein had provided for arrangements under
which changes in conditions of employment which were initiated below the
national level and which were confined to subordinate organizational
levels, for example, at the Regional level, would be subject to
bargaining at that level and that the actions taken by the Dallas Region
were in conformance with these arrangements. She concluded,
accordingly, that the Dallas Region did not violate section 7116(a)(1)
and (5) of the Statute by failing to elevate negotiations concerning its
PGS to the national level.
The Judge also concluded that the implementation of the PGS by
management officials of the Dallas Region's sub-offices was a
substantial change in working conditions that had a reasonably
foreseeable adverse effect on the employees in those offices. She found
that the implementation constituted a change in conditions of employment
of unit employees giving rise to a duty to negotiate as to the impact
and implementation of the change. She concluded that the Dallas Region
violated section 7116(a)(1) and (5) of the Statute by instructing the
McAllen and El Paso District Offices to implement the PGS without
bargaining with the exclusive representative of their respective
employees.
B. The Positions of the Parties
The Respondents excepted to the Judge's finding that the Dallas
Region unlawfully refused to bargain over the impact and implementation
of the PGS by instructing its District Offices not to bargain. They
further excepted to her finding that there was a duty to bargain at the
District Office level (here McAllen and El Paso). The Respondents argued
that the only duty was at the Regional Office level, and that the duty
was met at that level. They further argue that, as the Judge found that
the Dallas Regional Office was justified in refusing to elevate
negotiations by the Union, none of the violations alleged against the
Dallas Region can be found.
The General Counsel excepted to the Judge's failure to find that the
Dallas Region unlawfully refused to elevate negotiations to the national
level. It argues that the nature of the matter was appropriate for
bargaining only at the national level and that the Union had never
agreed to bargain on this specific matter at the Regional level.
C. Analysis
First, the Authority agrees with the Judge that the Dallas Region did
not violate the Statute by failing to elevate negotiations concerning
its PGS to the national level. The Authority notes that although the
record does not show that the parties executed a formal agreement
concerning their alternative bargaining arrangements, it does show that
these other arrangements for bargaining below the level of exclusive
recognition arose out of delegations of authority from the AFGE National
Council to its subordinate officials; that the delegations were
communicated to the Respondents' officials with thed intent that they
should be effective; that the arrangements were in conformance with and
extensions of the parties' previously existing practices; and that the
parties' respective representatives at the Regional level understood
that these arrangements were in place at the time that the Dallas Region
promulgated its PGS. It has not been alleged or shown that the Dallas
Region misunderstood or acted contrary to these arrangements. We find
no merit in the AFGE National Council's contention that the Dallas
Region's PGS should only have been negotiated at the national level;
its contention was based only on the view that negotiations at the
national level regarding a nationwide contract would result in
agreements which might require subsequent revisions in the actions of
the Dallas Region.
The Authority also agrees with the Judge that the implementation of
the PGS was a substantial change in the daily operations of the Dallas
Region's sub-offices that had a reasonably foreseeable adverse effect on
the employees in those offices. We note that there were no exceptions
to this finding of the Judge. We thus concur in the Judge's conclusion
that the implementation constituted a change in conditions of employment
of unit employees that gave rise to a duty to bargain as to the impact
and implementation of the change, and that the Dallas Region violated
section 7116(a)(1) and (5) of the Statute by instructing the McAllen and
El Paso District Offices to implement the PGS without bargaining with
the exclusive representative.
IV. Case No. 6-CA-1034 (McAllen District Office) and Case
Nos. 6-CA-1053 -- 1055 (El Paso District Office)
A. The Judge's Findings and Conclusions
The complaints in these cases alleged that:
(1) the McAllen and El Paso District Offices, as well as the Dallas
Region, violated section 7116(a)(1) and (5) of the Statute by unlawfully
refusing to bargain with the exclusive representive of its respective
employees;
(2) both the McAllen and the El Paso District Offices also violated
section 7116(a)(1) and (5) of the Statute by dealing directly with
employees and thus unlawfully "bypassing" the exclusive representative
of its respective employees;
(3) the El Paso District Office further violated section 7116(a)(1)
and (5) by breaching its negotiated agreement requiring the negotiation
of changes in working conditions;
(4) the McAllen District Office violated section 7114(a)(2)(A) and
thereby section 7116(a)(1) and (8) of the Statute by holding "formal
discussions" with its employees without affording Local 3388 the
opportunity to be present; and
(5) the El Paso District Office violated section 7114(b)(4) and
thereby section 7116(a)(1) and (8) of the Statute by refusing to supply
Local 2991 with certain requested information.
The Judge found that:
(1) both the McAllen and El Paso District Offices followed the
instructions of the Dallas Region, in fact refused to bargain with the
exclusive representatives of their respective employees, and thus
violated the Statute;
(2) both the McAllen and El Paso District Offices also violated the
Statute by dealing directly with, and thereby unlawfully bypassing the
exclusive representative of, their respective employees;
(3) resolution of the issue concerning the alleged breach of the
collective bargaining agreement by the El Paso District Office was
unnecessary, as it would add nothing to the decision of the recommended
remedy;
(4) the McAllen District Office held formal discussions with its
employees without affording Local 3388 the opportunity to be present and
thereby violated the Statute; and
(5) the El Paso District Office did not violate the Statute by
refusing to supply certain requested information because it was not
shown that the information was "necessary" or that it was "normally
maintained" within the meaning of the Statute.
B. The Positions of the Parties
The Respondents' position, as set forth above, is that the only duty
to bargain was at the Regional Office level and that therefore no
failure of a duty to bargain can be found against the McAllen or El Paso
District Offices. The General Counsel agrees with the violations the
Judge found, but excepts to her failure to find that the El Paso
District Office unlawfully refused to furnish requested information. In
this regard, the General Counsel excepts to the rationale the Judge used
in determining that the information was not necessary, and to the
Judge's use of the standard that the information must have been
"normally maintained."
C. Analysis
While we agree with the Judge, as found above, that the Dallas Region
violated the Statute by instructing its McAllen and El Paso District
Offices not to bargain, we do not agree that those offices also violated
the Statute by refusing to bargain. The McAllen and El Paso offices
were acting only as conduits in carrying out the instructions of the
Dallas Region. In these circumstances, it would not effectuate the
purposes and policies of the Statute to find a separate violation based
upon the actions of officials in those District Offices. See, for
example, Department of Health and Services, Washington, DC, and
Department of Health and Human Services, Region 7, Kansas City,
Missouri, 16 FLRA 288 (1984) and cases cited therein. Thus, the
allegations against the McAllen and El Paso District Offices in this
regard in Case Nos. 6-CA-1034 and 6-CA-1053 -- 6-Ca-1055 shall be
dismissed.
With regard to the allegations that the management officials at
McAllen and El Paso bypassed the exclusive representative, the Dallas
Region instructed these officials to implement the PGS without
bargaining with the exclusive representative and to implement the PGS
after consulting with employees regarding the employees' own
accountability plans. The McAllen and El Paso management officials
followed these instructions by meeting with their employees,
individually and in groups, for the purpose and effect of receiving the
employees' input and soliciting employee suggestions on the prreparation
of the plans. Upon these findings, the Authority concludes that the
McAllen District Office and the El Paso District Office engaged in
conduct which bypassed the exclusive representative in violation of
section 7116(a)(1) and (5). See Department of Transportation, Federal
Aviation Administration, Los Angeles, California, 15 FLRA 100 (1984);
Social Security Administration, Baltimore, Maryland, 9 FLRA 909, 911
(1982). Although this conduct by the management officials at McAllen
and El Paso was the result of the instructions received from the Dallas
Region, no bypass violation was alleged against the Dallas Region.
Accordingly, McAllen and El Paso management must bear the responsibility
for this action. See United States Department of the Treasury, Internal
Revenue Service and Internal Revenue Service, Austin District, and
Internal Revenue Service, Houston District, 23 FLRA No. 100 (1986).
As to the third allegation that the El Paso District Office further
violated the Statute by breaching its negotiated agreement, we agree
with the Judge's conclusion that it is unnecessary to reach this issue.
The Judged made no separate findings in this regard, and there were no
exceptions to this portion of the Judge's decision.
Regarding the allegation that the McAllen District Office conducted
formal discussions with employees in conflict with section 7114(a)(2)(A)
of the Statute and thereby violated section 7116(a)(1) and (8), the
Authority has concluded, in Veterans Administration, Veterans
Administration Medical Center, Muskogeel, Oklahoma, 19 FLRA No. 122
(1985), that actual representation by an exclusive representative at a
formal discussion is sufficient to demonstrate compliance with the
statutory requirement that an exclusive representative "be given the
opportunity to be represented." The Authority further stated that:
"Neither section 7114((a)(2)(A) nor its legislative history supports a
conclusion that Congress intended that a union representative must be
given notification of a formal discussion in advance, specifically in
his or her capacity as a union official." However, based on the Judge's
findings that the exclusive representative did not receive notice which
would apprise it of when the meetings would occur and that the exclusive
representative was not in fact represented at these meetings, we
conclude that the McAllen District Officew did not provide the exclusive
representative with "the opportunity to be represented at" these
meetings. By such conduct the McAllen District Office acted contrary to
section 7114(a)(2)(A) and thereby violated section 7116(a)(1) and (8) of
the Statute. Since it has not been shown that the instructions of the
Dallas Region mandated this conduct, the McAllen District Office bears
the sole responsibility for this violation. See, for example, Kansas
Army National Guard and National Guard Bureau, 10 FLRA 303 (1982).
With regard to the additional allegation that the El Paso District
Office failed and refused to provide information to the exclusive
representative as required under section 7114(a)(2)(A), the Authority
concurs with the Judge's reasoning and conclusion that this allegation
should be dismissed on the basis that the information so requested was
not "necessary" for collective bargaining so as to give rise to the
Respondent's duty to furnish the information. In view of this
conclusion, we find it unnecessary to pass upon the Judge's additional
reasoning that the information was not the type of data "normally
maintained in the regular course of business."
V. Conclusions
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 affirms those rulings. The Authority has considered the
Judge's Decision, the positions of the parties and the entire record,
and adopts the Judge's findings, conclusions and recommended Order to
the extent consistent with this decision.
We conclude that the Respondent Dallas Regional Office violated
section 7116(a)(1) and (5) of the Statute by instructing the McAllen and
El Paso District Offices to implement the PGS without bargaining with
the exclusive representative of their respective employees. We also
conclude that the McAllen and El Paso District Offices violated section
7116(a)(1) and (5) of the Statute by dealing directly with employees and
thus unlawfully bypassing the exclusive representative of their
respective employees. We further conclude that the McAllen District
Office violated section 7114(a)(2)(A) and thereby violated section
7116(a)(1) and (8)l of the Statute by conducting formal discussions with
its employees without affording its exclusive representative the
opportunity to be represented at those discussions.
VI. Remedy
The Judge, among other things, ordered the withdrawal of
accountability plans and the destruction of certain documentation that
resulted from employing those plans; that is, a status quo ante order.
In our view, such a remedy is not warranted here. We have balanced the
nature and circumstances of the violations against the degree of
disruption in Government operations that would be caused by such a
remedy, and have taken into consideration the various factors set forth
in Federal Correctional Institution, 8 FLRA 604(1982) in making this
determination.
The accountability plans here were formulated pursuant to the PGS.
There is no question that management had a right to issue the PGS, which
was formulated pursuant to the mandate of the Civil Service Reform Act
(1978) to all agencies to develop specific critical elements and
performance standards. Moreover, a Congressional time mandate was
involved. As the Judge found, the Union was on notice of the agency's
intended actions, although it was not given an opportunity to negotiate
over the impact and implementation of those actions. We also note, as
indicated above, that a status quo ante remedy involving the withdrawal
of accountability plans or the destruction of documentation that
resulted from employing those plans would seriously disrupt the
efficiency of the agency's operations.
In these circumstances, we find that a status quo ante remedy is
neither required nor necessary in order to effectuate the purposes and
policies of the Statute. An appropriate remedy for the violations which
we find in these cases can be obtained by requiring the Dallas Region to
instruct its McAllen and El Paso District Offices to bargain (1) on the
manner in which employees will participate in the preparation of
employee accountability plans required by the Personnel Guide for
Supervisors, (2) on the implementation of those accountability plans,
and (3) on the procedures and appropriate arrangements for employees
whose performance appraisals have been adversely affected by such
accountability plans.
Furthermore, as we have stated in issuing prospective bargaining
orders and rejecting contentions that a status quo ante remedy should be
granted under circumstances where the potential disruption to an
agency's operations was substantial:
A prospective bargaining order is neither inadequate nor
inherently restrictive of the parties' right to address the
effects on unit employees of changes already made . . . . Rather,
it allows the parties the flexibility to bargain freely with
regard to how past actions may have affected any given employee.
Bargaining which explores such effects may itself reveal
situations that call for retroactive remedial action, about which
the parties are free to agree.
Environmental Protection Agency, 21 FLRA No. 98 (1986), slip op. at
3-4, quoted in Federal Aviation Administration, 23 FLRA No. 28 (1986),
slip op. at 10.
Based on the foregoing, we find that it is neither necessary nor
appropriate for us to order adversely affected employees to be made
whole, although that may be the result of the parties' bargaining which
we are ordering. We shall also issue appropriate orders to remedy the
bypass and formal discussions violations by the McAllen and El Paso
District Offices.
We find merit in the General Counsel's exceptions to the limited
scope of the posting ordered by the Judge. The Dallas Region ordered
all its subordinate offices not to bargain with AFGE. We therefore find
it appropriate and shall order that the Notice to be signed by the
Dallas Region be posted at the Regional Office and at all subordinate
offices throughout the Region, including the McAllen and El Paso
District Offices.
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:
A. The Department of Health and Human Services, Social Security
Administration, Dallas Region, Dallas, Texas, shall:
1. Cease and desist from:
(a) Directing its subordinate offices which are represented by the
American Federation of Government Employees, AFL-CIO, National Council
of Social Security Administration-Field Operations Locals (AFGE), the
exclusive representative of its employees, not to bargain with AFGE over
the employee accountability plans formulated by these offices, pursuant
to the Personnel Guide for Supervisors distributed by the Dallas Region
in September 1980.
(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) Upon request of the American Federation of Government Employees,
AFL-CIO, National Council of Social Security Administration-Field
Operations Locals (AFGE), the exclusive representative of its employees,
instruct the McAllen District Office and the El Paso District Officed to
bargain with the exclusive representative on the manner in which
employees will participate in the preparation of employee accountability
plans required by the Personnel Guide for Supervisors issued by the
Dallas Region in September 1980, on the implementation of those
accountability plans, and on the procedures and appropriate arrangements
for employees whose performance appraisals have been adversely affected
by accountability plans formulated without employee participation
established through negotiations with AFGE.
(b) Upon the request of the exclusive representative, instruct the
McAllen District Office and the El Paso District Office to give notice
to AFGE Locals 3388 and 2991, respectively as appropriate, of any future
employee accountability plans proposed for implementtion, and extend to
the appropriate Local an opportunity to engage in appropriate bargaining
prior to implementing such plans.
(c) Post at the Dallas Regional Office and provide for posting at all
subordinate offices of the Dallas Region where the employees are
represented by AFGE, copies of the attached Notice to be furnished by
the Federal Labor Relations Authority. Copies of said Notice shall be
signed by the Regional Commissioner for the Dallas Region, and shall be
posted and maintained 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 to
ensure that such 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 VI, 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.
B. The Department of Health and Human Services, Social Security
Administration, McAllen District Office, McAllen, Texas, shall:
1. Cease and desist from:
(a) Failing to afford representatives of the American Federation of
Government Employees, Local 3388, AFL-CIO, appropriate notification of
and an opportunity to be represented at any formal discussion between
one or more representatives of this Office and one or more employees in
the exclusive representative's unit at this Office concerning personnel
policies and practices and other general conditions of employment.
(b) Bypassing representatives of the American Federation of
Government Employees, Local 3388, AFL-CIO, by dealing directly with unit
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
(c) 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 Federal Service Labor-Management Relations
Statute:
(a) Provide the American Federation of Government Employees, Local
3388, AFL-CIO, with appropriate notification of and an opportunity to be
represented at any formal discussion between one or more representatives
of this Office and one or more employees in the exclusive
representative's unit at this Office concerning personnel policies and
practices or other general conditions of employment.
(b) Post at the McAllen District Office, copies of the attached
Notice to be furnished by the Federal Labor Relations Authority. Copies
of said Notice shall be signed by the District Manager, and shall be
posted and maintained 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 to
ensure 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 VI, 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.
C. The Department of Health and Human Services, Social Security
Administration, El Paso District Office, El Paso, Texas, shall:
1. Cease and desist from:
(a) Bypassing representatives of the American Federation of
Government Employees, Local 2991, AFL-CIO, by dealing directly with unit
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
(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 Federal Service Labor-Management Relations
Statute:
(a) Post at the El Paso District Office, copies of the attached
Notice to be furnished by the Federal Labor Relations Authority. Copies
of said Notice shall be signed by the District Manager, and shall be
posted and maintained 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 to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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.
IT IS FURTHER ORDERED that the remaining allegations in the
complaints concerning the McAllen District Office and the El Paso
District Office of the Department of Health and Human Services, Social
Security Administration, in Case Nos. 6-CA-1034, 6-CA-1053, 6-CA-1053-1,
6-CA-1054 and 6-CA-1055 be, and they hereby are, dismissed.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, 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 direct our subordinate offices of the Dallas Region which
are represented by the American Federation of Government Employees,
AFL-CIO, National Council of Social Security Administration-Field
Operations Locals (AFGE), the exclusive representative of our employees,
not to bargain with AFGE over the employee accountability plans
formulated by these offices, pursuant to the Personnel Guide for
Supervisors distributed in September 1980.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercisze of their rights assured by the
Federal Service Labor-Management Relations Statute. WE WILL, upon
request of AFGE, instruct the McAllen District Office and the El Paso
District Office to bargain with the exclusive representative on the
manner in which employees will participate in the preparation of
employee accountability plans required by the Personnel Guide for
Supervisors distributed in September 1980, on the implementation of
those accountability plans, and on the procedures and appropriate
arrangements for employees whose performance appraisals have been
adversely affected by accountability plans formulated without employee
participation established through negotiations with AFGE.
WE WILL, upon request of AFGE, instruct the McAllen District Office
and the El Paso District Office to give notice to AFGE Locals 3388 and
2991, respectively as appropriate, of any future employee accountability
plans proposed for implementation, and extend to the appropriate Local
an opportunity to engage in appropriate bargaining prior to implementing
such plans.
Social Security Administration,
Dallas Region
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 any of its provisions, they may communicate directly with the
Regional Director, Region VI, Federal Labor Relations Authority, 525
Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone
number is: (214) 767-4996.
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 afford representatives of the American Federation
of Government Employees, Local 3388, AFL-CIO, appropriate notification
of and an opportunity to be represented at any formal discussion between
one or more representatives of this Office and one or more employees in
the exclusive representative's unit at this Office concerning personnel
policies and practices and other general conditions of employment.
WE WILL NOT bypass representatives of the American Federation of
Government Employees, Local 3388, AFL-CIO, by dealing directly with our
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL provide the American Federation of Government Employees,
Local 3388, AFL-CIO, with appropriate notification of and an opportunity
to be represented at any formal discussion between one or more
representatives of this Office and one or more employees in the
exclusive representative's unit at this Office concerning personnel
policies and practices or other general conditions of employment.
Social Security Administration,
McAllen District Office
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 any of its provisions, they may communicate directly with the
Regional Director, Region VI, Federal Labor Relations Authority, 525
Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone
number is: (214) 767-4996.
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 bypass representatives of the American Federation of
Government Employees, Local 2991, AFL-CIO, by dealing directly with our
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
Social Security Administration,
El Paso District Office
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, Region VI, Federal Labor Relations Authority, 525 Griffin
Street, Suite 926, Dallas, Texas 75202, and whose telephone number is:
(214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-785
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, DALLAS
REGION, DALLAS, TEXAS,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO NATIONAL COUNCIL OF SOCIAL SECURITY
ADMINISTRATION-FIELD OPERATIONS LOCALS,
Charging Party
Case No. 6-CA-1034
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, McALLEN DISTRICT
OFFICE, McALLEN, TEXAS,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3388, AFL-CIO,
Charging Party
Case Nos. 6-CA-1053, 6-CA-1053-1, 6-CA-1054, 6-CA-1055
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, EL PASO
DISTRICT OFFICE, EL PASO, TEXAS,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2991, AFL-CIO
Charging Party
Wilson G. Schuerholz,
For the Respondents
Elizabeth A. Martinez and
James E. Dumerer,
Attorneys for the General Counsel
Federal Labor Relations Authoritiy
Sylvester Overturf,
For the Charging Party
Before: ISABELLE R. CAPPELLO,
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. Section 7101 et seq.
(Supp. III, 1979) (hereinafter referred to as the "Statute") and the
Rules and Regulations of the Federal Labor Relations Authority
(hereinafter, the "Authority"), 5 CFR Ch. XIV, Section 2410 et seq.
Complaints involving three Texas offices of the Social Security
Administration were issued on June 25, 1981 (Case Nos. 6-CA-1053,
1053-1, 1054, and 1055), on May 27, 1981 (Case No. 6-CA-1034), and on
July 27, 1981 (Case No. 6-CA-785). An Order dated August 26, 1981,
consolidated these cases for hearing.
The hearing was held on September 22 and 23, 1981, in Dallas, Texas.
The parties appeared, adduced evidence, and examined and cross-examined
witnesses. Briefs were submitted on November 9, on behalf of the
Respondents, and on November 13, on behalf of the General Counsel.
Based upon the record made by the parties, my observation of the
demeanor of the witnesses, and the briefs, I make the following findings
of fact, conclusions of law, and recommended orders.
Issues
All the issues raised in these cases concern employee accountability
plans whichs the Dallas Regional Office of the Social Security
Administration (hereinafter "SSA") ordered formulated by and implemented
in the district offices of the Dallas Region. Two district offices, at
El Paso and McAllen, are the respondents in two of the complaints. The
Dallas Regional Office is the respondent in the third complaint.
Each complaint alleges violations of Sections 7116(a)(1) and (5) of
the Statute, in that respondents refused to bargain over the impact and
implementation of the plans and subsequently implemented them,
unilaterally.
In Case No. 6-CA-1034, concerning the McAllen office, it is alleged
that respondent conducted a Section 7114(a)(2)(A) "formal meeting",
without affording Local 3388 of the American Federation of Government
Employees ("AFGE") an opportunity to be present, thereby violating
Sections 7116(a)(1) and (8) of the Statute.
In Case Nos. 6-CA-1053, 1053-1, 1054 and 1055, concerning the El Paso
office, it is alleged that respondent refuses to turn over draft
proposals for accountability standards, that the drafts constitute
necessary and relevant information requested by Local 2991 pursuant to
Sections 7114(b)(4) of the Statute, and that, therefore, respondent is
violating Sections 7116(a)(1) and (8) of the Statute.
Also, at the El Paso Office, it is alleged that respondent breached a
collective bargaining agreement requiring consultation and/or
negotiations of changes in working conditions, in violation of Sections
7116(a)(1) and (5).
At both the El Paso and McAllen Offices there is also an allegation
that respondents bargained directly with employees in violation of
Sections 7116(a)(1) and (5).
Statutory Provisions Involved
Section 7114(a)(2) provides, in pertinent part, that:
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 practices or other general condition of employment . . . .
Section 7114(b)(4) provides, in pertinent part, that:
The duty of an agency and an exclusive representative to
negotiate in good faith under subsections (a) of this section
shall include the obligation -- . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel or
training provided for management officials or supervisors,
relating to collective bargaining.
Section 7116(a) provides, in pertinent part, that:
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; . . . or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Findings of Fact
1. Since August 30, 1979, AFGE has been the exclusive representative
for a nationwide consolidated unit of employees of SSA. Employees of
SSA are employed in one central office and in five other components.
One of the five components is Field Operations, and is the one here
involved. SSA manages its field operations through ten regional
offices. The regional offices manage numerous district offices, through
area directors.
2. On October 10, 1979, AFGE gave the following explanation to AFGE
locals on how consolidation would change bargaining obligations:
As a practical matter all local changes will be dealt with
locally by the union organization which historically held that
responsibility. Technically the new level of recognition would
require that the Commissioner of Social Security bargain with AFGE
National President Blaylock anytime a district manager wanted to
change something. But both parties have agreed that an effective
LMR program requires that they delegate responsibilities to those
in a position to know, to those who are most affected and have
historically held the responsibility.
(JtEx-20.2) /1/
3. On October 18 and December 31, 1979, AFGE and SSA exchanged
designations of responsibilities to sub-level representatives.
3a. On October 18, the National President of AFGE, Kenneth T.
Blaylock, sent a letter to the Commissioner of SSA in which he outlined
delegations of authority to administer the nationwide consolidated unit.
AFGE established a general committee composed of a Central-Office local
and five National Councils. The National Councils correspond to the
five components of SSA.
3b. Each member of the AFGE general committee has a president. The
chief spokesperson of the committee is delegated the authority to deal
directly with the Commissioner of SSA, or his designee, "on all matters
which are national in scope and appropriate under the Civil Service
Reform Act ('CSRA')." (JtEx-19.2) The six presidents on the committee
are delegated the authority to deal directly with the heads of their
respective components on matters which affect their components. The
component presidents may further delegate authority for those matters
which are local or regional.
3c. On December 31, the Commissioner of SSA replied to Mr. Blaylock.
Management counterparts were designated. The Commissioner agreed that
issues should be resolved "at the local level whenever possible," but
took exception to some views of AFGE on bargaining levels. See JtEx-23.
Att. A.
4. Other evidence pertaining to the understanding of the parties as
to the appropriate bargaining level includes the following.
4a. On October 21, 1979, the Executive Vice President of the AFGE
National Council of SSA Field Operations sent a letter to the
Commissioner of SSA to "clarify" delegations of authority in respect to
field offices. (JtEx-21.1) The letter advised that there would be ten
Regional Vice-Presidents "who shall serve as the chief representative of
the Council for Region which he or she represents." (JtEx-21.1), and
that "the Regional Vice Presidents must be timely and properly notified
of changes in policies and practices which may be bargainable."
(JtEx-21.2)
4b. The letter also advised that presidents of locals which had
historically held recognition were all Council representatives and
should be notified of changes proposed at the local level and given the
opportunity to "meet and confer" about the proposals. (JtEx-21.2)
4c. The letter also advised that: "Generally, whenever an issue or
matter of LMR (labor-management relations) involves more than one Local
of an SSA region, the authority for LMR shall rise to the Regional Vice
President of the National Council to act on behalf of the affected
Locals of the region." (JtEx-21.3)
4d. Finally, the letter advised "concerning the nature of the
authority that we have delegated to our Regional Vice Presidents and to
the Local Presidents," that "(a)s representatives of this Council, they
shall obtain all rights to this union under law, in particular the right
to enforce these rights by complaint of Unfair Labor Practice and the
right to bargain on conditions of employment." (JtEx-21.3)
4e. The Regional Vice President of the Dallas Region, Sylvester
Overturf, testified to the understganding of AFGE on delegations of
authority. He testified that regional vice presidents are "to bargain
on issues that d(o not) affect anything above the regional level." (TR.
88)
4f. The labor relations officer of the Dallas Region, Kenneth K.
King, testified to the understanding of SSA as to appropriate bargaining
levels. It is as follows:
My understanding always was that whatever level initiated it --
if the national level initiated it, the national level had the
duty to bargain with the national component of AFGE. If the
regional level initiated it, the regional level had the duty to
give advance notice and negotiate as appropriate with the regional
head of AFGE, who is Mr. Overturf over here. If the change takes
place on the district level, it would be the responsibility of the
district manager to give the District Union president or head of
the Union advance notice and to negotiate as appropriate.
(TR 256)
5. Effective December 5, 1979, John Harris was appointed to the
position of President of the National Council of Field Operations, and
Sylvester Overturf to that of Regional Vice President of the Dallas
Region of SSA. Martha McSteen is the Regional Commissioner of the
Dallas Region, and Mr. Overturf's counterpart for union-management
matters. The Dallas Region covers five States and manages over 33
district offices, /2/ including the ones at El Paso and McAllen. At
McAllen, Pablo Hernandez held the position of President of Local 3388
from 1977 up until March, 1981. At El Paso, Daniel Avila has been
President of Local 2991 for two years.
6. In April 1980, /3/ SSA and AFGE exchanged written proposals
concerning a Master Labor Agreement, in preparation for impending
negotiations. Those of the Union attempt to cover all areas subject to
bargaining. Until such time as a Master Agreement is agreed to, the
terms and conditions of all existing local AFGE agreements have been
extended and are currentlyh in effect. With regard to the instant
cases, there are collective bargaining agreements in effect in the
McAllen and El Paso District Offices of SSA.
6a. Around April 7 or 8, AFGE submitted proposed Article 21, dealing
with "Critical Elements" and "Performance Standards," two factors which
the CSRA, in Section 203, requires each agency to develop for each job.
Article 21 also covers such items as twice yearly performance interviews
and their minimum content.
6b. As of the time of the hearing on these cases, only a few
articles of the Master Agreement had been agreed to "after probably a
year or more of negotiations." (TR 248) Negotiations are now at the
point of impasse.
7. On April 28, Regional Commissioner McSteen sent a letter to
Regional Vice President Overturf, "as an official of a AFGE." (JtEx-1)
His comments and recommendations were solicited on a "draft PGS
Supplement," compiled by going through existing chapters of the
Personnel Guide for Supervisors (PGS), drawing together in one place all
of the various areas that relate to accountability of employees, and
providing examples of accountability plans for specific jobs. (JtEx-1)
A copy of the draft was attached to the letter. A response by May 7 was
sought.
7a. The draft PGS Guide (hereinafter, also referred to as the
"Guide") applies only in the Dallas Region. Other regions have
different accountability plans; and some regions have none.
7b. A primary purpose of the Guide is to set up "a means of
documenting performance requirements and measuring actual performance,
such documentation to "serve as a basis for annual employee appraisal
and performance rating." (JtEx-2.3) It is also to provide a means for
documenting adverse actions, awards, and the granting and denial of
within-grade increases. Lack of such documentation has created "many of
the documentation problems experienced in the past." (GCEx-3.2)
7c. The concept of employee accountability set out in the PGS Guide
is not a new one in the Dallas Region, which has had a long-established
policy of periodic performance discussions and performance evaluations,
based on quality, quantity and timeliness of work, and the use of
statistics for measuring performance. But until the advent of the
Guide, there have been no written accountability plans with fixed
numerical standards. The written plans are to cover the "major
functions of each position" and set out the "expected level of
satisfactory performance, and the methods to be used in measuring that
performance." (JtEx-2.2) The Guide also covers such matters as twice
yearly performance interviews and their minimum content, also covered by
AFGE's proposed Article 21. See finding 6a, above.
7d. The Guide leaves to each district office the formulation of the
actual plans and the insertion of numerical standards, in recognition of
the fact that these are matters best left to local management, in view
of local problems and circumstances. Not all jobs in the district
offices are covered by the samples furnished by the Dallas Regional
Office.
7e. The written plans were to cover the employee appraisal period
from October 1980 through October 1981 (TR 48, 81) at which time the
system mandated by the CSRA was to go into effect. The Guide refers to
the CSRA, several times, and notes that "SSA centrally is in the process
of developing a performance appraisal system for all employees," (that
t)he system will include performance standards which will set out
critical elements of each field position, "(and that i)t is not expected
that the performance appraisal system will be implemented prior to
October 1, 1981." (JtEx-2.5)
7f. Management officials in the Dallas Region expressed the view
that the "only change" represented by the Guide was "to pull everything
together, which is really not a change, and to require a written plan in
each office so that each employee would know what those goals were and
how they could contribute toward meeting those goals." (TR 254-255)
8. On May 4, Mr. Overturf responded to Commissioner McSteen's
letter. He stated that: "It is the position of the AFGE/FO National
Council that employee accountability and performance standards are
matters subject to negotiations." (JtEx-3) Accordingly, he declined to
accept the offer to make "comments." "At the instructions of the
President, SSA/FO National," he made a request for negotiations over the
matter. (JtEx-3)
9. Subsequently, Mr. Overturf and Mr. Harris got together about the
draft Guide and decided that it was not feasible for them to get
involved in negotiating on a subject that was involved in negotiations
ongoing at the national level, "(b)ecause anything that (they) did or
any issue involving negotiability, all this would be superceded by
whatever occurred in the national contract." (TR 28-29)
10. Accordingly, on May 21, Mr. Overturf wrote another letter to
Commissioner McSteen in which he explained "the National Counsel's
position" as being that these were national issues, negotiations on them
were underway, and that any regional plan would be only temporary, and
probably not uniform with plans in other regions, or the plan eventually
developed on a nationwide basis. (JtEx-4) He stated the "Council's
position that implementation of the proposed regional plan abandoned."
(JtEx-4)
11. Shortly after receipt of the May 21 letter, Mr. King, the labor
relations officer for the Dallas Region, called Mr. Overturf about it.
12. On July 23, Regional Commissioner McSteen informed Mr. Overturf
that "the regional employee accountability guide (would) not be issued
or implemented for the time being." (JtEx-6) This advice was relayed to
Mr. Overturf in a letter concerning another matter.
13. Regional Commissioner McSteen disagreed with the Union position
that performance standards would be set in the employee accountability
plans. However, she was aware that the Authority was expected to be
issuing a decision on the negotiability of performance standards, and
decided it would be wise to await the decision before proceeding with
the proposed Guide.
14. On July 31, the awaited decision was issued. See National
Treasury Employees Union and Department of the Treasury, Bureau of
Public Debt (hereinafter referred to as "Bureau of Public Debt"), 3 FLRA
769, No. 119, Case No. 0-NG-56 and also American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C. (hereinafter referred to as "OPM"), 3 FLRA
784, No. 120, Case Nos. 0-NG-177-2, 3, 4 and 5.
15. On August 13, Regional Commissioner McSteen sent a letter to Mr.
Overturf which reads:
On April 26, we asked you to comment on a draft PGS guide on
accountability. On May 4, you responded that you would not
comment since it was AFGE's position that accountability and
performance standards were negotiable. On May 21, you further
requested that we delay regional implementation of our
accountability guide. We have honored your request up to this
time.
On July 31, the FLRA ruled on the negotiability of performance
standards in cases numbered 0-NG-56 and 0-NG-177-2/5.
This is to inform you that we now plan to issue and implement
the accountability guide on September 2, 1980.
We are providing a copy of the draft guide, which is unchanged
from the one previously furnished.
(JtEx-7)
16. The Regional Commissioner expected the Union to make some
proposals. After vainly waiting four or five days past the September 2
implementation date mentioned in her letter to Mr. Overturf, she put the
Guide into the printing and distribution channels, which amounted to
implementation.
17. The Guide went out to districts offices with a letter
instructing them to involve employees in the formulation of local
accountability plans, to "consult" with local AFGE officials, in offices
organized by AFGE, and to "bargain" with local NFFE officials, in
offices organized by NFFE. (GCEx-3.1) It also instructed them that:
"Since the guide is initiated by the Regional Office, the duty to
bargain (at AFGE-organized offices) is between the Regional Commissioner
and the Regional Vice Presidednt of AFGE. This obligation has been
met." (GCEx-3.1)
18. The district offices were also instructed that the plans had to
be approved by both the district manager and the area director.
19. On August 18 or 19, Mr. Overturf received the August 13 letter
from Regional Commissioner McSteen. He was preparing to go to the
national caucus of AFGE, which started August 24. He was unable to
reach Mr. Harris about a response to the letter. Both Mr. Harris and
Mr. Overturf went to the caucus before it started. Once there, the main
concern of each was getting elected to office. They were unable, in the
context of the caucus, which is a political function, to discuss a
response to the August 13 letter. Mr. Overturf returned to his home on
August 30 and to work, on September 2. On September 5, he consulted
with Mr. Harris about a response; and they agreed to the content of
one. Mr. Overturf testified that he did not feel it would have been
"useful" to pick up the phone, and ask the agency for an extension for
time to respond, "because we had to get something in writing." (TR 72)
20. On September 8, Mr. Overturf responded, in writing, to the
August 13 letter. He explained his delay in answering on the ground
that he received the letter shortly before his scheduled departure to
attend the AFGE national caucus, and that he had not seen a copy of the
Authority decision at the time he received the letter. He objected that
the Guide constituted changes in working conditions that were within the
negotiating authority of the majority unit and which were still under
negotiation at the majority-unit level. He explained that he
interpreted Regional Commissioner McSteen's action to be a unilateral
decision that the entire area of employee accountability and performance
standards was non-negotiable, and that this was contrary to the
Authority's decision, which held that decisions as to negotiability must
be made concerning specific proposals. He stated that "it is the
position of SSA/FO NC that the issuance of the Regional Supplement to
PGS Chapter V, Guide 4 must be rescinded." (JtEx-8)
21. On September 24, Regional Commissioner McSteen replied to Mr.
Overturf's September 8 letter. She advised him that he had not
requested negotiations or submitted counterproposals, after the notice
contained in her August 13 letter; that they would have been
considered; but that since none were received by September 2, the Guide
had been implemented and would soon be in all offices.
22. On October 17, AFGE's Executive Vice President, National Council
of SSA/FO Locals, filed the charge upon which the complaint in Case No.
6-CA-785 is based.
The McAllen District Office
23a. In the McAllen District Office, Pablo Hernandez, the President
of AFGE's Local 3388, became aware of accountability plans for that
office in October, when he was asked to attend a meeting with the
Assistant District Manager, William H. Fitzgerald, for an explanation of
the plans. Mr. Hernandez made a request to negotiate the implementation
of the plans, at that time; and the request was rejected on the ground
that the bargaining duty had been taken care of at the regional level.
Mr. Fitzgerald did "discuss" with Mr. Hernandez the method of obtaining
employee input (TR 191 and see also TR 186), and also told him there
would be meetings with employees in each of the four modules in the
office. The Union was given a "general invitation" to be "present" at
the meetings, but was given no role to play. (TR 186) No notice was
given to the Union, qua the Union, as to when the meetings would take
place. The meetings started about mid-November and continued into
December. Union representations were scattered throughout each module;
and it was "common knowledge" as to when each module had its meeting.
(TR 189)
23b. On November 1, the supervisor of Service Representatives sent
each employee a note seeking "facts, not figures" as to what "items" of
their job they felt should be looked at, to hold them accountable.
(JtEx-14) He urged them to comment, and set a deadline of November 19.
A sample plan of another district office was attached to the notes.
23c. On December 1, the McAllen District Manager sent a memorandum to
all employees advising them of the formulation of the accountability
plans and seeking their input, through their supervisors who "w(ould) be
discussing your accountability plans with you." (JtEx-10.2) The Union
was not consulted about the memorandum prior to issuance. The President
of Local 3388 received a copy only "(a)s an employee." (TR 98)
23d. The Service Representatives were called together by management
in early December. No Union representatives attended the meeting.
Management asked for their comments on the accountability plans. Some
questions were asked by employees that could not be resolved. At a
second meeting, "a week later on (their) regular weekly transmittal
meeting to discuss any incoming material," the supervisor reminded the
employees that there were some items left unanswered from the previous
meeting and that he had "no definite reply." (TR 108) The Union was not
represented at the second meeting.
23e. On December 2, the President of Local 3388 received a copy of a
note from his supervisor which was addressed to all "Title 16, SSI"
employees. (JtEx-11) He was such an employee. The note referred to
copies of plans previously distributed and sought employee input by
December 4.
23f. The meeting for the Title 16 SSI employees took place on
December 4. Employees in the other modules also attended meetings about
the plans.
23g. The plans were implemented at the McAllen District Office
around January 1, 1981, without notice to Local 3388.
23h. Just two or three days after learning of the implementation,
Local 3388, on January 29, 1981, requested negotiation over the
implementation and adverse effects (which the plans might) have on
members of the bargaining unit." (JtEx-12.1)
23i. On February 4, 1981, by memorandum to Local 3388, the Assistant
District Manager declined the requested negotiations "at the local
level." (JtEx-13.2) The reason given was that the PGS Guide was
initiated by the Regional Commissioner and that "the only latitude given
local management was the determination of local numerical objectives,
not implementation of the plan itself." (JtEx-13.2) The memorandum
explained that the duty to bargain was at the regional level, and had
been met.
23j. Prior to the written accountability plan implemented on January
1, the McAllen District Office had used a very informal plan which
varied from module to module. Statistics had always been used; but the
written plan gave the supervisors "more figures to work with and the
evaluations should be more accurate." (TR 184) The written plans
eliminated "a lot of the subjectivity." (TR 185)
The El Paso District Office
24a. In the El Paso District Office, in August, Daniel M. Avila, the
President of AFGE Local 2991, approached the Assistant District Manager,
Francisco Martinez, to ask "what, if anything they were going to use as
far as evaluating our performance for the latest performance appraisal
period." (TR 111) Mr. Martinez indicated that "he wished to work with me
on it as a representative of the Union, and he said that at that point
in time he wished to come up with a mutually agreed plan." (TR 111-112)
24b. In September, the El Paso District Office received the Guide
from the Dallas Regional Office and furnished a copy of it to Mr. Avila.
In October, management held several meetings with Mr. Avila, to discuss
the plans to be developed pursuant to the Guide.
24c. On October 31, Mr. Martinezk approached Mr. Avila and indicated
that there were going to be some unit meetings regarding the plans. Mr.
Avila requested that Union observers be present, and designated certain
represedntatives in each unit to be present as "Union observers, Union
representatives." (TR 112-113) Management understood that the designated
persons were to be at the meetings as Union "representatives." (TR 161,
162)
24d. The unit meetings began on November 4. Mr. Avila instructed
the Union people he chose to attend the meetings of the dates and times
of the meetings, and also that they were to give input only as
employees, and not on behalf of the Union. The union designatees
attended the meetings on "official time." (TR 139) It was the intent of
Mr. Avila to negotiate at some future time.
24e. Rough drafts of accountability plans were passed out to
employees at the meetings. Employees gave comments. Supervisors made
notes. Suggestions were accepted from employees, including those
attending on official time granted by management.
24f. On November 21, a labor-management meeting was held at the
request of Mr. Avila. At the meeting Mr. Avila stated that an unfair
labor practice charge had been filed by the National Council of SSA
Field Office Locals against the Regional Commissioner for issuing "the
Regional PGS instructions on accountability." (JtEx-15.1) He requested
negotiations on the numbers plugged into the plans. The District
Manager refused. She stated that they were not negotiable, and that she
had been instructed "to secure employee input and that was it." (TR 116)
24g. At the November 21 meeting, Mr. Avila made it clear that he
would not take a position as to the acceptability of any plan until the
Area Director had acted on the drafts sent to him for review. Mr. Avila
then requested a copy of the drafts sent to the Area Director, and
recalled the District Manager replying that she saw no reason why she
could not comply with this request. The District Manager testified that
she gave him no answer, at the time. The District Manager seemed to be
surer of her facts and was corroborated by another witness.
Accordingly, I credit the testimony that no answer was given to Mr.
Avila, at the November 21 meeting. Mr. Avila stated that he needed the
drafts to determine "what the impact was going to be as far as what each
specific position was going to be concerned with, as far as the issues
involved for each one." (TR 117) He testified further that: "Before
they went up to the Area Director I wanted to know how she specifically,
or management specifically, felt as far as the accountability plans were
concerned." (TR 117)
24h. On November 24, Mr. Avila sent the District Director a
memorandum in which he made four proposals. All but one were adopted.
The rejected one proposed the used of "median" performance, in the unit,
as a basis for individual performance measurement. (JtEx-15.2 and see
TR 199)
24i. On December 9, Mr. Avila made a written request for copies of
the drafts to be sent to the Area Director. The drafts were being
"assemble(d)," when this request was made. (TR 200)
24j. On December 16, shortly before the drafts of the plans were
sent to the Area Director, the District Manager replied to Mr. Avila's
request for copies of them. Her reply was that her drafts would not be
complete until she received the comments of the Area Director. The
requested drafts were never given to Local 2991.
24k. After the Area Director returned the draft plans, copies were
made and given to Local 2991 and employees during the week of January
19. The major difference between the samples furnished with the Guide
and the plans implemented was that a range of numbers were inserted into
the formats furnished with the Guide. Where no formats were furnished,
the El Paso office developed plans "from scratch." (TR 159)
24l. The collective bargaining agreement between Local 2991 and the
El Paso Office provides for "consultation and/or negotiation between the
parties "on all personnel policies and practices or other matters
affecting working conditions of employees in the Unit, which are within
the discretion of the Employer . . . . " (TR. 123) This agreement was
entered into on January 12, 1978, before the nationwide consolidated
unit was recognized.
24m. The District Manager testified that "full consultation" with
Local 2991 took place in regard to the plans, and that "maybe we
negotiated some at the same time." (TR 206) Her labor-relations officer,
however, admitted that no negotiations took place.
24n. While supervisors at the El Paso office had always used
statistics in evaluating employee performance, before the implementation
of the written accountability plans, they have begun to rely upon them
"very heavily," since the implementation, and feel they have "less
leeway" now in using their "judgment" and considering "extenuating
circumstances." (TR 126, 147) Under the written plans, one supervisor
has graded solely on the statistical aspect of performance and refused
to consider the fact that one employee had spent time helping a blind
employee develop his workload.
Discussion and Conclusions
A. On the alleged failure to engage in impact-and-implementation
bargaining over changes in working conditions.
1. The parties do not dispute the accepted principle of Federal
labor-relations law that an agency is required to give the exclusive
representative prior notice and the opportunity to negotiate regarding
substantial changes in working conditions that have an adverse impact
upon bargaining-unit employees. See, e.g. Office of Program Operations,
Field Operations, Social Security Administration, San Francisco Region
and Council of District Office Locals, American Federation of Government
Employees, San Francisco Region, 5 FLRA No. 45 (1981). The dispute here
begins, rather, with the question of whether any substantial changes in
working conditions actually occurred when (1) the Dallas Regional Office
of SSA issued, to the district offices of the region, a Personnel Guide,
providing procedures and guidelines necessary to implement employee
accountability plans; and (2) when the district offices implemented the
plans they formulated, pursuant to the Guide. The preponderance of the
evidence indicates that changes of substance did occur, in both
situations, and that they had reasonably foreseeable adverse effects
upon employees.
While there had long been a concept of employee accountability
throughout the offices of the Dallas Region, there had never been any
written or formal plans for measuring accountability, prior to the
issuance of the Guide. Before the Guide, employees had been judged on a
very informal basis that varied from office to office, and module to
module. After the Guide, supervisors found themselves with less leeway
to make subjective evaluations and to consider extenuating
circumstances.
Another indicia of the substance of the change mandated by the Guide
is the process required of the district offices in formulating their
plans pursuant to it. It is a lengthy one, requiring input from
employees, consultation with AFGE locals, bargaining with NFEE locals,
and double review of the plans, by the district manager and the area
director.
Another indicia is to be found in one of the purposes which the plans
are to serve. Management in the Dallas Region had suffered many
problems, in the past, from the absence of documentation to justify
adverse actions, awards, and the granting and denial of within-grade
increases. The written plans are to supply the missing documentation
and correct this serious problem.
As for the plans formulated by the district offices pursuant to the
regional guidelines, it was established that they were adapted by the
district offices to local problems and circumstances, with discretion
exercised as to the numerical standards used in measuring performance,
and as to developing job formats "from scratch," when the office had
unique positions not covered by samples furnished with the regional
guidelines. (TR 159) Thus, a change of substance was created in each
district office by the formulation of specific plans, pursuant to the
Regional Office Guide.
2. The next disputed issue for resolution concerns the appropriate
bargaining level when a newly-recognized, nationwide consolidated unit
is negotiating a master agreement with an agency, and an activity
proposes to change an existing condition of employment. Consideration
of this question begins with the Authority's decision in Department of
Health and Human Services, Social Security Administration and Local
1346, American Federation of Government Employees, AFL-CIO, 6 FLRA 202,
No. 33 (June 25, 1981), (hereinafter, "Local 1346") which both parties
cite in their briefs. See GCBr 11-12 and RBr 11 and 34. Local 1346
involves the same agency and the same consolidated AFGE unit as the
instantt proceeding. Local 1346 had an agreement which preceded the
certification of the nationwide consolidated unit; and Local 1346
sought to renegotiate up to a third of its articles while negotiations
at the national level were in progress. The issue resolved by the
Authority was "whether, following the certification of AFGE for a
nationwide consolidated unit, there remained a duty to bargain new
conditions of employment at the local level pursuant to the reopener
clause contained in the local agreement." (6 FLRA at 203, emphasis by
the Authority). The Authority ruled that no such duty remained, and
that a "requirement that substantive bargaining pursuant to a reopener
must take place with respect to a portion of the newly consolidated unit
would be antithetical to the goal of stability and to the purpose of
consolidation." 6 FLRA at 204. A caveat to the Authority's decision was
expressed as follows: "This is not to say that there exists any
impediment to the parties at the level of exclusive recognition agreeing
to authorize supplemental negotiations at a sub-level." (6 FLRA at 204,
fn. 2)
Both the rationale and the caveat of the Local 1346 decision apply
here. AFGE is conducting national negotiations on an employee appraisal
system. Albeit different in some respects from what is on the national
bargaining table, the regional guidelines for accountability plans, and
the district offices plans themselves, are also concerned with what
amounts to an employee appraisal system. The Guide and the plans are
"new", in some significant respects, as already discussed. Other
regional offices have different plans in place; some regional offices
have none. Clearly, the "appropriate unit" for bargaining under the
Local 1346 rationale, is at national level. See Section 7103(a)(12) of
the Statute, cited in Local 1346, 6 FLRA at 203.
However, the parties here have just as clearly recognized sub-level
negotiations. Shortly after recognition of the nationwide consolidated
unit, the parties agreed that regional bargaining is to take place where
the region initiates a change, and it has no effect beyond the region.
They are also in agreement that when a management change takes place, at
the district level, it is the responsibility of the local
union-management team to negotiate, at least where there is a local
agreement in effect, as is the case at the El Paso and McAllen offices.
3. The remaining issues to be resolved are whether there were
failures to bargain in good faith by the Dallas Regional Office and the
El Paso and McAllen District Offices. In view of the conclusions above
discussed, and the facts established by the record, it must be concluded
that failures to bargain in good faith, as to the plans, but not as to
the Guide, did occur at each establishment.
At the Dallas Region level, in Case No. 6-CA-785
The evidence of record shows that management in the Dallas Regional
Office gave a 20-day notice to AFGE's Regional Vice President for the
Dallas Region of its intent to implement the Guide; that it waited
about 24 days after giving the notice and before implementing the Guide;
and that no request to bargain was received during this period. No
failure to bargain in good faith can be found, on these facts.
Nevertheless, the General Counsel charges bad faith in implementing
the Guide. One argument is that the letter giving notice amounted to
announcing a "fait accommpli," and thereby excused the Union from giving
a timely response. (GCBr 16) This is not a fair reading of the letter,
however. The letter referred to a prior request of the Union to
negotiate performance standards, and cited the Authority's recent
decisions on the negotiability of performance standards. Had the Union
studied these decisions within the 20-day notice period, it would have
found that they held "significant aspects of performance appraisal
systems may be negotiated." See Bureau of Public Debt, 6 FLRA at 675 and
also page 777 referring to the fact that management must "negotiate on
procedures and appropriate arrangements with respect to employees
adversely affected by management's exercise of its right." See also the
OPM decision, 6 FLRA at 789, which was also cited in the letter.
Reference to the request of AFGE to negotiate, and citation of these
decisions was a clear indication that management expected to negotiate
on these matters.
Another alleged act of bad faith is that the Dallas Regional Office
did not contact John Harris, the President of the National Council,
after Sylvester Overturf, the Regional Vice President, made requests to
elevate the matter to the national level. See GCBr 16. This allegation
fails because the record established that Mr. Sylvester was the chief
representative of the National Council, in the Dallas Region, and the
Union representative delegated to receive timely notice of changes. He
also spoke for the National Council in his correspondence with regional
management. Therefore, contact by management with Mr. Overturf was
tantamount to contact with the National Council.
The General Counsel also charges bad faith in that the Dallas
Regional Office did not communicate to Mr. Overturf its position on
elevating the issue to the national level. See GCBr 16. Undoubtedly
communications between the parties could have been better, from both
directions. But the sparsity on management's part does not rise to the
level of an unfair labor practice. Management was, after all, uncertain
as to what was bargainable, at any level, until the Authority issued its
decisions in the OPM and Bureau of the Public Debt cases. Its decision
to await the outcome of these cases before communicating its views to
Mr. Overfturf was reasonable, and not an act of bad faith. Within a
reasonable time after issuance of the decisions, the Dallas Region got
in touch with Mr. Overturf, to start the bargaining process. See
findings 14 and 15, above.
While no failure to bargain in good faith, as to the Guide, can be
found, the Dallas Regional Office did, in effect, refuse to bargain over
the impact and implementation of the plans formulated by the district
offices. It did so by instructing its district offices not to engage in
such bargaining. It did this in the mistaken belief, already discussed,
that the plans did not constitute changes of substance in working
conditions, and that regional-level bargaining over the Guide was the
extent of the bargaining obligation. The Dallas Region, therefore,
bears the responsibility for the failure to bargain, at the
district-office level.
It is appropriate, at this point, to discuss SSA's objection that a
requuirement to bargain at both the regional and district office level
is excessive. See RBr 33-34. To the contrary, it simply allows
accommodation for the local problems and circumstances recognized by the
Dallas Region in allowing district offices to develop their own plans.
For example, bargaining by the El Paso District Office would have given
local 2991 the opporftunity to alleviate adverse effects suffered by
employees who took time to assist the blind employee assigned to that
office. This is not to say that the district offices may countermand
agreements reached at the national level; but they may refine them to
accommodate these types of local problems.
At the El Paso and McAllen District Office level
SSA does not contest the allegation that no bargaining took place at
the McAllen District Office. Clearly it did not.
At El Paso, SSA does argue that bargaining, in fact, took place. The
El Paso District Manager, however, was under orders not to bargain;
told the President of Local 2991 that she only had to obtain employee
input; and expressed doubt that full bargaining took place. Her
labor-relations officer conceded that it did not. There could hardly
have been "good faith" bargaining, as required by the Statute, under
those circumstances. See Section 7103(a)(12) and 7114(b)(1)-(3).
Accordingly, it must be concluded that there was a failure to bargain
in good faith by the Dallas Region and the El Paso and McAllen District
Offices, in violation of Sections 7116(a)(1) and (5) of the Statute.
B. The charge of a bypass of Local 2991 at the El Paso District
Office.
The General Counsel argues that "by refusing to bargain with Local
2991 and by directly soliciting from unit employees their opinions and
suggestiong regarding working conditions, the El Paso District Office
bypassed the local agent of the exclusive representative" (GCBr 21),
thereby engaging in an unfair labor practice, in violation of Sections
7116(a)1) and (5) of the Statute.
It has already been concluded that the El Paso District Office
refused to bargain with Local 2991; and such refusal does amount to an
illegal bypass of the exclusive bargaining representative, under Federal
labor-relations law.
However, no illegal bypass can be found from the further allegation,
found in Count 8 of the Complaint, which concerns the meetings called by
supervisorss to get employee input on the plans. Management gave Local
2991 notice of these meetings; acquiesced in union representatives
being present, on official time; gave Local 2991 the dates and places
of the meetings; and had reasonable cause to believe that the employees
designated by the Union to be present were there as representatives.
Count 8 of the Complaint in Case Nos. 6-CA-1053, 1053-1, 1054, and 1055
should be dismissed.
C. The charge of a bypass of Local 3388 and conducting a Section
7114(a)(2)(A) "formal discussion(s)" without affording Local 3388 an
opportunity to be present, at the McAllen District Office.
The discussions at issue are those called by management to get
employee input into the formulation of accountability plans. With one
possible exception, they were clearly "formal discussions" within the
meaning of Section 7114(a)(2)(A), in that they were called by
management, had a prearranged agenda, concerned a subject within the
scope of collective bargaining, were called for the purpose of getting
employees' ideas on the formulation of the plans, and employee
participated in the discussions. The possible exception is the second
meeting which took place with Service Representatives. The evidence
shows only that it was a regular weekly meeting to discuss incoming
material of some unspecified sort, and the supervisor merely alluded to
the fact that he had no definite reply to questions raised at the first
meeting, on the accountability plans.
While management extended to Local 3388 a "general invitation" to
attend the meetings, it did not advise the Local of the actual dates and
times of the medetings. Such information came to Local officials only
incidentally, in their capacity as employees. This conduct falls short
of treating a union as a "partner(s) on an equal footing," the standard
set by this Authority in United States Air Force, Air Force Logistics
Command, Aerospace Guidance and Metrology Center, Newark, Ohio and Local
2221, and American Federation of Government Employees, AFL-CIO, 4 FLRA
No. 70 (1980). See also Norfolk Naval Shipyard, Portsmouth Virginia and
Tidewater Virginia Federal Employees Metal Trades Council, 6 FLRA 74,
No. 22 (1981), finding a violation of Sections 71716(a)(1) and (8) when
a meeting was held with employees without notice to the union, and union
officials just happened to be present, in their capacity, as employees,
not as union representatives. The Authority stated:
More specifically, section 7114(a)(2)(A) requires that a Union
"be given the opportunity to be represented during formal
discussions involving conditions of employment." This clearly
contemplates prior notice to the Union so that, inter alia, the
Union will have an opportunity to select representatives of its
own choosing to be present.
See 6 FLRA at 76, emphasis by the Authority.
Thus, the series of meetings held with employees on the
accountability plans, without providing Local 3388 specific notice of
each one and an opportunity to be present, constituted illegal bypasses
of the Union and also a violation of Section 7114(a)(2)(A). These are
unfair labor practices, under Sections 7116(a)(1), (5), and (8) of the
Statute.
In addition, management at the McAllen District Office illegally
bypassed Local 3388 when it sent bargaining-unit employees memoranda
exhorting them to give comments on the accountability plans. This
constitutes a failure to bargain through representatives chosen by
employees and is an unfair labor practice under Sections 7116(a)(1) and
(5). As this Authority held in its Bureau of Public Debt decision, an
agency's right to establish performance standards "is subject to certain
rights of a labor organization under the Statute," including "(t)he duty
to bargain . . . (on) the form of employee participation in the
establishment of performance standards . . . . " 6 FLRA at 770.
D. The charge of management's refusal to furnish allegedly necessary
information at the El Paso District Office.
Section 7114(b)(4) of the Statute imposes a duty upon an agency to
furnish "data" which is "normally maintained by the agency in the
regular course of business," and which is "reasonably available and
necessary for full and proper discussion, understanding, and negotiation
of subjects within the scope of collective bargaining."
The data sought by Local 2991 consists of drafts of plans formulated
by the El Paso District Office and sent to the Area Director for review.
The drafts were not final until after the review. The President of
Local 2991 advised the District Manager that the Local would not take a
position as to the acceptability of any plan, until the Area Director
had acted on the drafts sent to him. He said he wanted to see the
drafts so that he could determine what their "impact" was going to be,
and what management "felt" about them before the plans went to the Area
Director. See finding 24(g) above. Local 2991 received copies of the
plans after they were reviewed by the Area Director, and seven days
before they became effective. See finding 24k, above.
On these facts, it cannot be concluded that the drafts were
"necessary," within the meaning of the Statute. Local 2991 could learn
nothing significant about "impact" from a draft that was subject to
change. In recognition of this the President of Local declined to take
any position until he saw the final plans. What management "felt" about
the plans before they were reviewed by the Area Director would seem to
have little practicable value to Local 2991, and might lead to
diversionary discussions over the content of them, which is not within
the scope of the bargaining obligation, under this Authority's Bureau of
Public Debt and OPM decisions. In any event, it cannot be concluded
that what management "felt" about the plans before they became final was
"necessary" to collective bargaining over their impact and
implementation.
Nor can it be concluded that drafts of final papers are the type of
data "normally maintained in the regular course of business." Normally,
drafts such as these requested would not be kept, for they serve no
purpose.
Accordingly, Count 10 of the Complaint in Case No. 6-CA-1953, 1053-1,
1054, and 1055 should be dismissed.
Other issues are raised by the parties. However, resolution of them
would only serve to extend, without altering this decision and the
remedy to be recommended.
Ultimate Findings and Orders
A. In Case No. 6-CA-785, the General Counsel has established, by a
preponderance of the evidence, that violations of Sections 7116(a)(1)
and (5) have occurred in the Dallas Region of the Social Security
Administration.
Accordingly, it is ORDERED, in Case No. 6-CA-785, pursuant to Section
7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute,
5 U.S.C. Section 7118(a)(7)(A) (Supp. III, 1979), and Section
2423.29(b)(1) of the Rules and Regulations of the Federal Labor
Relations Authority, 45 Fed. Reg. 3511 Section 2423.29(b)(1), that the
Dallas Region of the Social Security Administration, Dallas, Texas:
1. Cease and desist from:
(a) Advising offices organized by the American Federation of
Government Employees (AFGE) prior to August 30, 1979, that the
obligation to bargain with AFGE over the employee accountability
plans formulated by these offices, pursuant to the Personnel Guide
for Supervisors distributed regionally in September 1980, is only
at the regional level.
(b) In any like or related manner, violating Sections
7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action:
(a) Instruct the El Paso and McAllen District Offices to
withdraw all employee accountability plans formulated pursuant to
the Personnel Guide for Supervisors distributed by the Dallas
Region in September 1980, destroy all documentation prepared
pursuant to those plans, and make whole any employee adversely
affected by the plans consistent with applicable laws and
regulations.
(b) Instruct the El Paso and McAllen District Offices to give
notice to Local 3388 or 2991 of the American Federation of
Government Employees, as appropriate, of any employee
accountability plans proposed for implementation, and extend to
the appropriate Local an opportunity to engage in appropriate
bargaining prior to implementing such plans.
(c) Notify all the recipients of General Counsel's Exhibit 3
that the third paragraph is to be deleted, and that the first
sentence of the fourth paragraph is to be modified to read as
follows: "Managers of AFGE and NFFE offices have an obligation to
negotiate, if requested, on the manner in which the local
accountability plan will be developed and implemented."
(d) Post at the Dallas, Texas, Regional Office copies of the
attached notice marked "Appendix A," on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Regional Commissioner and
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices are customarily posted. Reasonable steps shall be
taken to ensure that said notices are not altered, defaced, or
covered by any other material; and
(e) Notify the 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.
B. In Case No. 6-CA-1034, the General Counsel has established, by a
preponderance of the evidence, that violations of Section 7116(a)(1),
(5) and (8) occurred at the McAllen District Office.
Accordingly, it is ORDERED, in Case No. 6-CA-1034, pursuant to the
authority cited in part A, above, that the McAllen District Office of
the Social Security Administration, McAllen, Texas:
1. Cease and desist from:
(a) Bypassing Local 3388 and dealing directly with employees
concerning accountability plans.
(b) Conducting formal discussions, as defined in 5 U.S.C.
7114(a)(2)(A), without timely and full notice to Local 3388 and an
opportunity to be present.
(c) Establishing accountability plans without affording the
Union a prior opportunity to negotiate over bargainable aspects of
the plans.
(d) In any like or related manner, violating Sections
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action:
(a) Withdraw all accountability plans formulated pursuant to
the Personnel Guide for Supervisors distributed by the Dallas
Regional Office in September 1980.
(b) Destroy all documentation prepared pursuant to such
accountability plans.
(c) Make whole any employee adversely affected by such
accountability plans consistent with applicable law and
regulations.
(d) Upon request, negotiate with Local 3388 over bargainable
aspects of employee accountability plans, prior to implementation.
(e) Provide Local 3388 with full and timely information,
including dates and times, of any formal discussions to be
conducted with employees and invite it to send a representative to
such discussions.
(f) Post, at the McAllen, Texas, District Office, copies of the
attached notice marked "Appendix B," on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the District Manager and posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices are customarily posted. Reasonable steps shall be taken
to ensure that said notices are not altered, defaced, or covered
by any other material; and
(g) Notify the 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.
C. In Case Nos. 6-CA-1053, 1053-1, 1054, and 1055, the General
Counsel has established, by a preponderance of the evidence, that
violations of Sections 7116(a)(1) and (5) have occurred at the El Paso
District Office, as alleged in Counts 9(a) and 11 of the Complaint. The
violations alleged in Counts 8 and 10 were not sustained.
Accordingly, it is ORDERED, in Case Nos. 6-CA-1053, 1053-1, 1054, and
1055, pursuant to the authority cited in part A, above, that Counts 8
and 10 of the Complaint be dismissed and that the El Paso District
office of the Social Security Administration, El Paso, Texas:
1. Cease and desist from:
(a) Bypassing Local 2991 by refusing to negotiate with it, in
good faith, over the bargainable aspects of employer
accountability plans, prior to their implementation.
(b) In any like or related manner, violating Section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Withdraw all accountability plans formulated pursuant to
the Personnel Guide for Supervisors distributed by the Dallas
Regional Office in September 1980.
(b) Destroy all documentation prepared pursuant to such
accountability plans.
(c) Make whole any employee adversely affected by such
accountability plans consistent with applicable law and
regulations.
(d) Upon request, negotiate with Local 2991 over bargainable
aspects of employee accountability plans, prior to implementation.
(e) Post, at the El Paso District Office, copies of the
attached notice marked "Appendix C," on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the District Manager and posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices are customarily posted. Reasonable steps shall be taken
to ensure that said notices are not altered, defaced, or covered
by any other material; and
(f) Notify the 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.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: February 11, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) "JtEx" refers to the Joint Exhibits of the parties. Other
abbreviations used in this Decision are as follows. "GCEx" refers to
the exhibits of the General Counsel, and "REx" refers to those of
Respondents. Multipage exhibits will be referenced first by the exhibit
number, and then by the page number. "TR" refers to the transcript.
"GCBr" refers to the brief of the General Counsel, and "RBr" to that of
Respondents.
(2) See TR 50, 156, 179, and 235 where witnesses gave varying
statements as to the number of district offices in the Dallas Region,
ranging from 33 to 80.
(3) All dates hereinafter mentioned will refer to 1980, unless
otherwise specified.
APPENDIX A
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 instruct the El Paso and McAllen District Offices to withdraw
all employee accountability plans formulated pursuant to the Personnel
Guide for Supervisors distributed by them in September 1980, destroy all
documentation prepared pursuant to those plans, and make whole any
employees adversely affected by those plans consistent with applicable
law and regulations.
WE WILL instruct the El Paso and McAllen District Offices to give
notice to Local 2991 or 3388 of the American Federation of Government
Employees (AFGE), as appropriate, of any employee accountability plan
proposed for implementation, and extend to the appropriate local an
opportunity to negotiate over bargainable aspects of the plans, prior to
their implementation.
WE WILL correct the memorandum of September 24, 1980, to all area
directors, district managers, branch managers, and teleservice center
managers, concerning the Regional Supplement to PGS Chapter V, Guide 4,
to reflect that managers of offices organized by AFGE have an obligation
to bargain, if requested, on the bargainable aspects of local
accountability plans.
(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 6,
whose address is P.O. Box 2640, Dallas, TX, 75221 and telephone number
is (214) 767-4996.
APPENDIX B
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 bypass Local 3388 and deal directly with employees.
WE WILL provide Local 3388 with timely and full notice of any formal
discussions to be held with bargaining-unit employees and an opportunity
to be present.
WE WILL provide Local 3388 with an opportunity to negotiate the
bargainable aspects of any employee accountability plans, before
implementation.
WE WILL withdraw all accountability plans formulated pursuant to the
Personnel Guide for Supervisors distributed by the Dallas Regional
Office in September 1980.
WE WILL destroy all documentation prepared pursuant to such
accountability plans.
WE WILL make whole any employee adversely affected by such
accountability plans consistent with applicable law and regulations.
(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 6,
whose address is P.O. Box 2640, Dallas, TX, 75221 and telephone number
is (214) 767-4996.
APPENDIX C
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 bypass Local 2991 by refusing to negotiate with it over
the bargainable aspects of employee accountability plans, prior to their
implementation.
WE WILL provide Local 2991 with an opportunity to negotiabe
bargainable aspects of employee accountability plans, before
implementation.
WE WILL withdraw all accountability plans formulated pursuant to the
Personnel Guide for Supervisors distributed by the Dallas Regional
Office in September 1980.
WE WILL destroy all documentation prepared pursuant to such
accountability plans.
WE WILL make whole any employee adversely affected by such
accountability plans consistent with applicable law and regulations.
(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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 6,
whose address is P.O. Box 2640, Dallas, TX 75221 and telephone number is
(214) 767-4996.