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44 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party/Union)

3-CA-00013

DECISION AND ORDER

April 17, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent (SSA) and the Union to the attached decision of the Administrative Law Judge. No oppositions were filed to the Respondent's or the Union's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the areas of consideration that it used in filling vacant positions, contrary to the terms set forth in Article 26, Section 5(B)(11)(b) of the parties' expired national agreement, after negotiations for a new agreement had reached impasse and while the parties were before the Federal Service Impasses Panel (the Panel). The Judge found that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute as alleged. The Judge recommended that a status quo ante remedy be ordered.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons that follow, we agree with the Judge that the Respondent violated the Statute. We adopt the Judge's findings, conclusions and recommended order to the extent consistent with this decision.

II. Facts

By letter dated March 10, 1988, the Respondent notified the Union that it wished to reopen several provisions of the parties' expired collective bargaining agreement. Paragraph 3 of that letter stated:

A list of the provisions in the current agreement which constitute permissive areas of bargaining and which are being withdrawn [are in] (tab C). We are also withdrawing the terms of other forms of agreements, such as MOU's [Memoranda of Understanding], which were derived from permissive areas of bargaining.

Judge's Decision at 2.

Article 26, Section 5 of the expired agreement was entitled "Vacancy Announcements and Areas of Consideration." Id. at 3. Subsection 5(B)(11)(b) of Article 26, one of the provisions listed by the Respondent in its letter as a permissive subject of bargaining, provided that reductions in the areas of consideration could only be "instituted by mutual consent of the parties."^(*) Id. According to the Respondent, this subsection concerned a permissive subject of bargaining because it affected "the numbers of employees assigned to an organizational segment." Id.

Subsequently, in late April 1988, the parties reached agreement on a new collective bargaining agreement and signed an MOU in which they agreed to withdraw their proposed revisions of several provisions of the expired agreement, including Article 26, Section 5(B)(11)(b). The language of Article 26, Section 5(B)(11)(b) in the new agreement was identical to that in the expired agreement. The new agreement was subject to ratification by the Union membership.

On December 23, 1988, the Union informed the Respondent that the collective bargaining agreement negotiated in April had been submitted to the membership for ratification and had been rejected. On January 9, 1989, the Union requested the services of the Federal Mediation and Conciliation Service (FMCS).

By letter to the Union dated April 10, 1989, the Respondent stated that "[t]his will serve as notice that your nonratification has unraveled all parts of the 1988 agreement that were subject to ratification. It is our position that we are released from any commitments previously made and that the entire process must start anew." Joint Exhibit 6 at 1. The Respondent noted that it was "identifying those parts of the 1982 agreement that are prohibited or permissive areas of bargaining under law that we do not intend to bargain." Id. Article 26, Section 5(B)(11)(b) was identified by the Respondent as both prohibited and permissive. The Respondent also stated that it intended to effect changes in the asserted prohibited and permissive areas on April 17, 1989. Finally, the Respondent stated that it would consider any proposals on these subjects "on a post[-]implementation basis." Id.

On April 11, 1989, the Union requested the assistance of the Panel with respect to two issues: (1) the no-smoking policy; and (2) alternate work schedules. On April 26, 1989, the Union responded to the Respondent's April 10th letter and stated:

As you are aware AFGE requested assistance of the Federal Services Impasses Panel on April 11, 1989. We expect that procedure to resolve this issue.

We have noted the issues you have raised regarding permissive and/or prohibited items. We will deal with these issues as soon as the impasse issues are resolved.

Any changes you wish to make, please notify us in accordance with the provisions of the current contract, and we will deal with them accordingly.

Joint Exhibit 14.

By letter of July 14, 1989, the Respondent informed the Union that:

We are ready to return to the [bargaining] table and believe you are obligated to join us. We sincerely believe a mutually beneficial agreement can be reached without assistance from a third party. When we return to the table, we will discuss the concerns you have identified along with the attached listing of management proposed modifications to the tentative 1988 agreement.

Joint Exhibit 13.

In late October 1989, the Panel appointed a Panel Member, Dr. Daniel H. Kruger, to hear the matter. A meeting with the parties held by Dr. Kruger on November 7, 1989, in an attempt to informally settle the dispute, was unsuccessful. By letter of November 8, 1989, the Respondent informed Dr. Kruger that the Respondent:

recommend[s] that the 1988 agreement be put into effect by the Panel as it was agreed to in July of 1988. The Panel decision to implement the 1988 agreement should be final and binding without any provision for ratification. If the Panel puts the 1988 agreement in place, as we have recommended, then the Panel can disregard our letter of April 10, 1989 on permissive and prohibited areas and our letter of July 14, 1989 listing proposed modifications to the 1988 agreement.

Joint Exhibit 8 at 2.

On December 22, 1989, the Panel issued its Decision and Order directing the parties to implement the terms and conditions of the agreement reached in April 1988, except that the Union would not have the right to submit the agreement for ratification. The Panel noted that the Union had sought its assistance in resolving only the smoking and alternate work schedule issues, and that SSA had proposed that if the Panel put the entire 1988 tentative agreement into effect, the Panel could disregard SSA's previously proposed modifications to the 1988 agreement. The Panel "concluded that the Employer's position provides a reasonable basis for settlement of the dispute," and ordered the parties "to implement their bilateral 1988 agreement," without the requirement for ratification. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 89 FSIP 132 (1989). The parties subsequently signed a new collective bargaining agreement on July 25, 1990. As noted above, Article 26, Section 5(B)(11)(b) of that agreement contained language identical to that in the expired agreement.

While the impasse was pending before the Panel, the Respondent issued a number of vacancy announcements between May 30, 1989, and September 29, 1989, in which it unilaterally reduced the areas of consideration without obtaining the Union's consent as required by Article 26, Section 5(B)(11)(b).

III. Judge's Decision

The Judge noted that the parties did not dispute the following principles established by the Authority: (1) "terms and conditions of employment which concern mandatory subjects of bargaining and which are embodied in a collective bargaining agreement continue following the expiration of the [a]greement"; (2) "once an agreement has expired, either party may elect to no longer be bound by provisions therein concerning 'permissive' subjects of bargaining, but instead may reassert the right not to negotiate with regard to such permissive subjects of bargaining"; and (3) "once parties have reached an impasse in their negotiations and one party timely invokes the services of the [Impasses] Panel, the status quo must be maintained to the maximum extent possible, i.e., to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. A failure or refusal to maintain the status quo during such time would, except as noted above, constitute a violation of section 7116(a)(1), (5) and (6) of the Statute." Judge's Decision at 6-7 (citations omitted). However, the Judge noted that the parties disagreed with respect to the application of those principles to the facts of this case.

In this regard, the Respondent contended before the Judge that it did not commit an unfair labor practice because "the 'areas of consideration' for job vacancies are permissive subjects of bargaining" and that "various sections of Article 26 dealing with the 'areas of consideration' were not before the Impasses Panel at the time the changes in such 'areas of consideration' were made." Id. at 7. The Judge disagreed with the Respondent's position. Citing Department of Defense, Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 4 FLRA 760 (1980) (Naval Ordnance Station), the Judge found that "the 'area of consideration' for a job vacancy is a mandatory subject of bargaining and may not be unilaterally changed upon the expiration of the parties' collective bargaining agreement." Id. Accordingly, the Judge found that the "Respondent's action in unilaterally changing various sections of Article 26 of the expired collective bargaining agreement, without first giving the Union the opportunity to request bargaining over the substance of the change, violated section 7116(a)(1) and (5) of the Statute." Id. at 8.

Moreover, citing Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985) (Department of the Treasury), the Judge noted that the Authority has held that "once one party invokes the services of the Impasses Panel the status quo must be maintained to the maximum extent possible in order to allow the Panel to take whatever action is deemed appropriate. Failure to maintain the status quo constitutes a 'failure to cooperate in impasse procedures' in violation of [s]ection 7116(a)(6) of the Statute." Id. The Judge found that because the change occurred while an impasse was pending before the Panel, the Respondent also violated section 7116(a)(6) of the Statute. The Judge reasoned that "to limit the status quo to only the items submitted to the Impasses Panel as urged by Counsel for the Respondent would only serve to frustrate the workings of the Panel since it could never predict with any certainty the current status of the remaining working conditions." Id. at n.6.

The Judge recommended that the Respondent be ordered to cease and desist from reducing the areas of consideration used in filling vacant positions without first properly notifying the Union and affording it a chance to bargain, and from failing and refusing to cooperate in impasse proceedings by taking unilateral action while an impasse was pending before the Panel. The Judge also recommended that the Authority order the Respondent to repost the vacancy announcements in which the areas of consideration had been unilaterally reduced in a manner contrary to the terms set forth in Article 26, Section 5(b)(11)(b) of the parties' expired national agreement.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent excepts to the Judge's findings that: (1) the Respondent violated section 7116(a)(1) and (5) of the Statute "by not providing the Union with the opportunity to request bargaining as to changes regarding Article 26 of the expired [contract]"; (2) the Respondent violated section 7116(a)(1) and (6) of the Statute "by not holding the status quo in connection with changes regarding Article 26 of the expired contract"; and (3) "the 'reducing' of areas of consideration for a job vacancy is a mandatory subject of bargaining and may not be unilaterally changed upon the expiration of the parties' [contract.]" Respondent's Brief in Support of Exceptions at 10-11 (emphasis in original).

As to the first exception, the Respondent states that on April 10, 1989, as a result of the "failure to ratify" the parties' contract, the Respondent notified the Union that "the nonratification of the contract had unraveled all parts of the [parties'] agreement and [the Respondent] was released from commitments previously made [in the bargaining process] and the entire process must start anew." Id. at 12. The Respondent notes that the notice specified the matters, including Article 26, Section 5(B)(11)(b), that were being removed from the bargaining table. Therefore, the Respondent argues that "there can be no question as to the [U]nion having received appropriate notice." Id. at 13. Furthermore, the Respondent argues that because the notice stated that the Respondent would "consider any proposals [that the Union] may have on these changes on a post[-]implementation basis . . . there can be no dispute as to the Respondent's willingness to bargain with the [U]nion over the changes it was proposing to the 1982 contract." Id. at 14. The Respondent contends, therefore, that because it "clearly gave the [U]nion notice and the opportunity to negotiate over the changes," and "the [U]nion never requested to bargain with the Respondent over such changes," the Respondent had discharged its obligations and was free to implement the changes. Id. at 17.

The Respondent contends that the Judge erred in finding that the Respondent had to maintain the status quo as to Article 26. The Respondent states that it does not contend that the requirements of the expired contract did not have to be maintained, but contends that Article 26 did not have to be maintained because Article 26 was not before the Panel. In sum, the "Respondent contends that [as to] those matters for which the [U]nion had previously been given notice of and the opportunity to bargain over, and not taken before the Panel, [the Respondent] is free to implement those matters, but the Respondent on all other matters for which the [U]nion was not given notice of and the opportunity to bargain over must hold the status quo consistent with the 'necessary functioning of the agency.'" Id. at 26.

The Respondent excepts to the Judge's finding that the subject matter of Article 26, Section 5(B)(11)(b)--reducing the areas of consideration for job vacancy announcements--is a mandatory subject of bargaining that could not be unilaterally changed upon the expiration of the parties' contract. The Respondent contends that the Judge's reliance on Naval Ordnance Station was misplaced.

The Respondent "contends that the 'reduction of the area of consideration' is a nonnegotiable issue, in that it directly interferes with management's right under [s]ection 7106(a)(2)(C)(ii) of the Statute[,] which reserves the Respondent's right to make appointments from 'any appropriate source.'" Id. (emphasis deleted). The Respondent states that a "procedure which attempts or insists that [management] must or will rely upon it as the sole basis for the selection of candidates . . . infringes upon management's right to select or appoint from any appropriate source." Id. at 27. The Respondent argues that such a procedure is a permissive subject of bargaining "so long as it does not attempt to limit the Respondent to only one alternative because, at that point, it is no longer a procedure. It, at that point, is an illegal provision which attempts to usurp a management right." Id.

The Respondent contends that "reduction of the area of consideration" has certain "permissive aspects," such as an effect on "the number of employees" that "violates the [A]gency's [section] 7106(b) right." Id. at 28-29. The Respondent also contends that Article 26, Section 5(B)(11)(b) violates the Agency's section 7106(a) rights by "directly interfer[ing] with the Respondent's mission." Id. at 30. Finally, the Respondent contends that the Judge should have applied the reasoning of the court in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (Treasury, BATF), and found that Article 26, Section 5(B)(11)(b) was "a direct and substantive impediment to management's right to select employees from any appropriate source" in violation of management's rights under the Statute. Id. at 30-31. The Respondent submits that the Judge's decision should be reversed and the complaint dismissed.

B. Union's Exceptions

The Union excepts only to the Judge's recommended remedy. The Judge recommended, among other things, that the Respondent "repost all vacancy announcements in which the areas of consideration were unilaterally reduced in violation of Article 26, Section 5(B)(11)." Judge's Decision at 9.

The Union requests that the Authority grant a remedy similar to the remedy in Naval Ordnance Station, relied on by the Judge. The Union suggests a remedy that would: (1) be more specific as to the terms of the posting or reposting of job vacancies; (2) require the Respondent to vacate positions that were improperly filled, and to promote employees who were improperly denied promotion; and (3) provide backpay, with interest, for employees improperly denied promotion.

V. Analysis and Conclusions

Under existing law, terms and conditions of employment that concern mandatory subjects of bargaining, and that are embodied in a collective bargaining agreement, continue in effect following the expiration of the agreement. See Adjutant General, State of Ohio, Ohio Air National Guard, Worthington, Ohio, 21 FLRA 1062, 1070 (1986) (Ohio Air National Guard). However, upon the expiration of the agreement, either party may elect no longer to be bound by provisions of the agreement concerning permissive subjects of bargaining, but instead may refuse to negotiate with regard to such subjects. Id. Finally, once the parties have reached an impasse in bargaining, and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible while the impasse is pending before the Panel. Department of the Treasury, 18 FLRA at 468.

The issues in this case are whether the Respondent violated the Statute: (1) by failing and refusing to bargain over the decision to change the areas of consideration used in filling vacant positions without the consent of the Union as required by Article 26, Section 5(B)(11)(b) of the parties' expired national agreement; and (2) by implementing those changes while the parties were before the Impasses Panel. The Respondent asserts that it was privileged to implement changes in the areas of consideration because Article 26, Section 5(B)(11)(b) constitutes a non-mandatory subject of bargaining and the Respondent had properly notified the Union that it was removing such subjects, including areas of consideration, from the bargaining table and implementing changes as to those matters.

For the reasons set forth below, we find that Article 26, Section 5(B)(11)(b) constitutes a mandatory subject of bargaining. Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by reducing the areas of consideration, and section 7116(a)(1), (5), and (6) of the Statute by failing to maintain the status quo while the impasse was pending before the Panel.

A. Article 26, Section 5(B)(11)(b) Is a Mandatory Subject of Bargaining

Relying on the Authority's decision in Naval Ordnance Station, the Judge found that Article 26, Section 5(B)(11)(b) of the parties' expired agreement, which provided that areas of consideration for certain vacancies could not be reduced without mutual consent, concerned a mandatory subject of bargaining. The Judge rejected the Respondent's reliance on Treasury, BATF, in which the court found that a proposal concerning areas of consideration was nonnegotiable. The Judge stated that there was "no showing that the Authority has adopted the [c]ourt's decision." Judge's Decision at 6 n.5.

However, shortly before the Judge issued his decision in this case, the Authority adopted the court's rationale in Treasury, BATF. See National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 888-90 (1990) (Tennessee Air National Guard). In Tennessee Air National Guard, relying on Treasury, BATF, we held that a proposal that required an agency to rank and consider current employees before soliciting or considering outside applicants was nonnegotiable because it directly interfered with management's right under section 7106(a)(2)(C) of the Statute to select employees from any appropriate source. Specifically, we found that, under section 7106(a)(2)(C) of the Statute, management has the right initially to solicit and consider the broadest range of possible candidates for a vacant position. Quoting Treasury, BATF, we stated that a proposal may not "preclude an agency from assessing the 'full range of potential candidates' when it makes its initial employment decisions." 35 FLRA at 889. See also American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 401-02 (1991); and American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469, 1474-78 (1991).

We note that it is undisputed that areas of consideration concern employees' conditions of employment. We also note that Article 26, Section 5(B)(11)(b), which provides that management will not reduce an agreed-upon area of consideration without the Union's agreement, is not like the proposal in Treasury, BATF, which precluded management from considering a full range of potential candidates. We need not determine whether Article 26, Section 5(B)(11)(b) directly interferes with management's right to select employees from any appropriate source under section 7106(a)(2)(C) of the Statute because, even assuming that it does, we find that Article 26, Section 5(B)(11)(b) would constitute an appropriate arrangement under the Statute and, therefore, is a mandatory subject of bargaining.

In determining whether a provision is an appropriate arrangement, we determine whether the provision is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). We determine whether a provision excessively interferes with a management right by weighing the benefits of the provision to unit employees against the burden on management's rights imposed by the provision. Id.

We find that Article 26, Section 5(B)(11)(b) is intended as an arrangement for employees adversely affected by management's right under section 7106(a)(2)(C) of the Statute. Specifically, by preventing the Agency from unilaterally reducing the normal areas of consideration, the provision allows the Union to preserve a broad range of opportunities for unit employees to apply for vacant positions.

We now turn to the question of whether that provision would constitute an appropriate arrangement or whether it would excessively interfere with management's right under section 7106(a)(2)(C) of the Statute. We find that the provision would be an appropriate arrangement. First, we note that Article 26, Section 5, generally, sets forth the agreed-upon areas of consideration by position and grade level. Section 5(B)(11)(a) sets forth certain conditions under which the areas of consideration will be reduced, and does not make reduction dependent on the Union's approval. Section 5(B)(11)(b) states that, if the parties mutually agree, the areas of consideration may be reduced "[w]hen solicitation throughout the normal area [of consideration] would be clearly impractical because extenuating and unique circumstances exist . . . ." See Appendix.

Section 5(B)(11)(b) benefits employees because it affords all employees within an applicable area of consideration the benefit of opportunities for promotion by providing that management's decision to reduce the area of consideration is subject to the Union's agreement. The only burden that Section 5(B)(11)(b) places on management is an administrative burden in that, absent agreement from the Union to limit the normal areas of consideration, it requires management to consider all applicants within the agreed-upon area of consideration. Moreover, we note that management may benefit from considering a broader range of possible candidates. Nothing in Tennessee Air National Guard or Treasury, BATF requires the conclusion that a provision like Article 26, Section 5(B)(11)(b), which allows the Union to ensure that all employees in an area of consideration will in fact be considered, but does not interfere with management's choice, excessively interferes with management's right to select under section 7106(a)(2)(C) of the Statute.

We find that the benefit afforded employees by Article 26, Section 5(B)(11)(b) outweighs any burden on management's right to select under section 7106(a)(2)(C) of the Statute. Accordingly, we conclude that Article 26, Section 5(B)(11)(b) would constitute an appropriate arrangement under section 7106(b)(3) of the Statute and, therefore, constitutes a mandatory subject of bargaining.

B. The Respondent Violated the Statute by Unilaterally Changing Areas of Consideration

A contractual provision that constitutes a mandatory subject of bargaining may not be unilaterally terminated or changed upon the expiration of a collective bargaining agreement. Ohio Air National Guard. Because Article 26, Section 5(B)(11)(b) was a mandatory subject of bargaining, the Respondent could not cease giving effect to that Article without the Union's agreement.

Accordingly, in agreement with the Judge, we find that the Respondent, by unilaterally reducing the areas of consideration without the Union's agreement, violated section 7116(a)(1) and (5) of the Statute.

C. The Respondent Violated the Statute by Failing to Maintain the Status Quo While the Parties Were Before the Panel

As noted above, the Judge, citing Department of the Treasury, found that once the parties have reached an impasse in bargaining, and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action it deems appropriate. Department of the Treasury, 18 FLRA at 468. The Respondent does not allege or show, nor is it otherwise apparent to us, that reducing the areas of consideration was "required consistent with the necessary functioning of the agency." Id. at 472. See also Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 948-51 (1990).

The Respondent argues that it should not be required in this case to maintain the status quo because Article 26, Section 5(B)(11)(b) was not before the Panel. We reject this argument. As noted above, the Respondent informed the Panel that the Panel could disregard the Respondent's proposed modifications to the agreement and put the July 1988 agreement into effect, if the Panel would order the parties to adopt the agreement that had not been ratified and not allow another ratification vote. By its terms, the Respondent's offer encompassed the parties' entire agreement. Moreover, it is clear from the Panel's final decision, as noted above, that the Panel ordered the parties to implement all substantive provisions of the entire July 1988 agreement, including Article 26, Section 5(B)(11)(b). Accordingly, in view of the Respondent's statement to the Panel and the scope of the Panel's order, it is clear that the Panel considered more than just the no-smoking policy and alternate work schedules issues, as argued by the Respondent. Therefore, we find it unnecessary to decide what the extent of the Respondent's obligation to maintain the status quo would have been if only those two issues had been before the Panel.

We find that, by failing to maintain the status quo as to Article 26, Section 5(B)(11)(b) while matters concerning the parties' collective bargaining agreement were before the Panel, the Respondent violated section 7116(a)(1), (5), and (6) of the Statute. Id. See also United States Marine Corps, Washington, D.C., 42 FLRA 3, 14 (1991) (Member Armendariz dissenting as to other matters), petition for review filed sub nom. United States Marine Corps, Washington, D.C., et al. v. FLRA, No. 91-1527 (D.C. Cir. Nov. 1, 1991). Compare Department of the Treasury, 18 FLRA at 469-70 (the agency did not violate the Statute by its actions concerning matters related to training and safety policy while other matters were pending before the Panel because the agency's actions did not constitute a change in training and safety policy and, therefore, the agency had no obligation to bargain over those actions). In this case, the Respondent's actions in reducing the areas of consideration for vacancies without the Union's agreement constituted a change in conditions of employment.

We note that the Judge found that the Respondent's unilateral implementation of reductions in the areas of consideration in vacancy announcements while matters concerning the parties' agreement were pending before the Panel violated section 7116(a)(1) and (6) of the Statute. The complaint in this case also alleged, and we find, that the Respondent's action in this regard violated section 7116(a)(1) and (5) of the Statute. As the Authority has noted, "the impasse resolution procedures of the Panel comprise one aspect of the collective bargaining process." Id. at 472. See also Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120, 131-32 (1991), aff'd sub nom. Department of Health and Human Services, Health Care Financing Administration v. FLRA, No. 91-1068 (4th Cir. Dec. 26, 1991).

VI. Remedy

The Judge's recommended order requires the Respondent to "repost all vacancy announcements in which the areas of consideration were unilaterally reduced." Judge's Decision at 9. We will clarify the Judge's recommended order to specifically provide what reposting will entail.

By posting vacancies for which areas of consideration were unilaterally reduced, the Respondent precluded employees outside the reduced areas of consideration from applying for those vacancies, thereby denying them the opportunity to be selected for the vacant positions. Therefore, we will order the Respondent to repost vacancy announcements which occurred after April 17, 1989, where areas of consideration were unilaterally reduced in violation of Article 26, Section 5(B)(11)(b) of the expired agreement and to evaluate the candidates who apply. If the Respondent determines that a candidate who had been excluded by the reduced area of consideration would have been selected, the Respondent must select that employee and make the employee whole, consistent with the Back Pay Act, 5 U.S.C. § 5596, for losses incurred as a result of the Respondent's actions. See, for example, Letterkenny Army Depot, 35 FLRA 113, 126-28 (1990). We do not address what action, if any, might be necessary with respect to an employee who was selected pursuant to the improper vacancy announcements. Id. at 128 n.*; Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 43 FLRA 1414, 1418 n.2 (1992).

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Social Security Administration, shall:

1. Cease and desist from:

(a) Unilaterally changing the areas of consideration for vacancy announcements without first obtaining the mutual consent of all parties as required by Article 26, Section 5(B)(11)(b) of the expired June 11, 1982 collective bargaining agreement, without first giving appropriate notice to the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to bargain over the decision to effectuate such a change.

(b) Failing and refusing to cooperate in impasse proceedings by unilaterally reducing the areas of consideration for vacancy announcements while matters concerning the parties' collective bargaining agreement are pending before the Federal Service Impasses Panel.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them 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 Statute:

(a) Repost all vacancy announcements which occurred after April 17, 1989, where the areas of consideration were unilaterally reduced in violation of Article 26, Section 5(B)(11)(b) of the expired July 11, 1982 collective bargaining agreement, and evaluate the candidates who apply for the vacancies.

(b) If it is determined that a candidate who had been excluded as a result of the reduced area of consideration would have been selected, select such employee and place that employee in the position to which he or she would have been entitled, and make him or her whole, with interest, for any losses he or she incurred as a result of its unlawful action.

(c) Post at its facilities wherever bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner, Social Security Administration, 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, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change the areas of consideration for vacancy announcements without first obtaining the mutual consent of all parties as required by Article 26, Section 5(B)(11)(b) of the expired June 11, 1982 collective bargaining agreement, without first giving appropriate notice to the American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, and affording it the opportunity to bargain over the decision to effectuate such a change.

WE WILL NOT fail and refuse to cooperate in impasse proceedings by unilaterally reducing the areas of consideration for vacancy announcements while matters concerning the parties' collective bargaining agreement are pending before the Federal Service Impasses Panel.

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 repost all vacancy announcements which occurred after April 17, 1989, where the areas of consideration were unilaterally reduced in violation of Article 26, Section 5(B)(11)(b) of the expired July 11, 1982 collective bargaining agreement, and evaluate the candidates who apply for the vacancies.

WE WILL, if it is determined that a candidate who had been excluded as a result of the reduced area of consideration would have been selected, select such employee and place that employee in the position to which he or she would have been entitled, and make him or her whole, with interest, for any losses he or she incurred as a result of our unlawful action.

_________________________________
(Activity)

Dated:_______ By:___________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111 - 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.

APPENDIX

Article 26, Section 5(B)(11), entitled "Reducing the Area of Consideration," provides:

(a) Mandatory Reduction - Where a position is reengineered to a higher grade, the area of consideration must be restricted to those employees performing the duties which form the basis for the higher grade. (In filling such positions, competitive procedures must be used and candidates usually are identified by the Servicing Personnel Office rather than through a vacancy announcement and application procedure.) The term "Reengineered Position" means a new position resulting from the restructuring of the duties of one or more already established positions through planned management action.

(b) Optional Reduction - When solicitation throughout the normal area would be clearly impractical because extenuating and unique circumstances exist, the promotion record must contain complete documentation justifying the smaller area, which shall only be instituted by mutual consent of the parties.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The text of Article 26, Section 5(B)(11) is set forth in the Appendix to this decision.

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