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47 FLRA No. 113

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

ARLINGTON, VIRGINIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 215

AFL-CIO

(Charging Party/Union)

WA-CA-20378

_____

DECISION AND ORDER

July 16, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by posting vacancy announcements containing new weights and factors for four clerical bargaining unit positions that were the subject of a pending dispute before the Federal Service Impasses Panel (the Panel) and failing to complete the mediation-arbitration proceedings ordered by the Panel. No exceptions were filed to the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute. The Respondent filed exceptions to portions of the Judge's recommended Order. The General Counsel filed an opposition to the exceptions.

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. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by posting vacancy announcements containing new weights and factors for four clerical bargaining unit positions that were the subject of a pending dispute before the Panel and failing to complete the mediation-arbitration proceedings ordered by the Panel.^(*) However, for the following reasons, we modify the Judge's recommended Order.

The Respondent contends that paragraphs 2.(a) and (b) of the Judge's recommended Order are contrary to Federal law, applicable regulation, and Authority precedent because, in the Respondent's view, the recommended Order directs an arbitrator "to change the weights and factors established by management should he/she find inappropriate those weights and factors in the February 10, 1992 announcements." Exceptions at 3. The Respondent asserts that, if this occurs, "the arbitrator will clearly decide substantive aspects of the [Respondent's] crediting plan" and thereby "violate management's rights and be inconsistent with [] law and applicable [G]overnment[-]wide regulations." Id. The General Counsel argues that the exceptions are "premature and speculative." Opposition at 2. According to the General Counsel, if an "arbitration award is ultimately issued and [the] Respondent believes it to be contrary to the Statute, it may avail itself of the statutory procedures in place for such a challenge." Id.

Contrary to the Respondent's contention, nothing in the recommended Order requires an arbitrator to make changes in the disputed weights and factors in violation of law, regulation, or Authority precedent. However, to the extent that the recommended Order requires an arbitrator to order specific relief, we have modified the Order to require the Respondent to comply with the decision reached at mediation-arbitration, to the extent consistent with law, rule, and regulation. Such a remedy is consistent with remedies ordered in cases where a respondent has failed to cooperate in impasse proceedings. See generally Veterans Administration, 23 FLRA 661 (1986) and Department of the Treasury and Internal Revenue Service, 22 FLRA 821 (1986) (respondents were ordered to comply with decisions reached at interest arbitration and by the Panel).

We note that the Panel's Order states that the mediator-arbitrator "may decline to consider any proposal about which either party contends it has no obligation to bargain." General Counsel's Exhibit No. 3 at 1 (citing Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)). To the extent that paragraph 2.(a) of the recommended Order would not permit the mediator-arbitrator to decline to consider any such proposal, we have modified that portion of the Order. We have also modified the Order to clarify that the Respondent had a duty to bargain over only the impact and implementation of the instant changes in weights and factors. See American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1142-43 (1988) (management's right to select under section 7106(a)(2)(C) includes the right to determine the selective factors of a position).

For the foregoing reasons, we adopt the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute and we issue the following remedial Order.

II. 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 Social Security Administration, Office of Hearings and Appeals, Arlington, Virginia, shall:

1. Cease and desist from:

(a) Assigning new weights and factors to the evaluation criteria of four bargaining unit positions without completing bargaining with the American Federation of Government Employees, Council 215, AFL-CIO, the exclusive representative of its employees, concerning procedures and appropriate arrangements for employees adversely affected by the changes.

(b) Failing and refusing to cooperate in impasse procedures by posting vacancy announcements for bargaining unit positions that were the subject of a pending dispute before the Federal Service Impasses Panel and failing and refusing to participate in the mediation-arbitration proceedings ordered by the Federal Service Impasses Panel.

(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) Participate in the mediation-arbitration proceedings ordered by the Federal Service Impasses Panel to resolve the issues at impasse.

(b) Comply with the determinations reached at mediation-arbitration regarding the weights and factors used in the February 10, 1992, vacancy announcements, to the extent consistent with law, rule, and regulation.

(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 Chief Judge, Social Security Administration, Office of Hearings and Appeals, 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 assign new weights and factors to the evaluation criteria of four bargaining unit positions without completing bargaining with the American Federation of Government Employees, Council 215, AFL-CIO, the exclusive representative of our employees, concerning procedures and appropriate arrangements for employees adversely affected by the changes.

WE WILL NOT fail and refuse to cooperate in impasse procedures by posting vacancy announcements for bargaining unit positions that were the subject of a pending dispute before the Federal Service Impasses Panel and failing and refusing to participate in the mediation-arbitration proceedings ordered by 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 participate in the mediation-arbitration proceedings ordered by the Federal Service Impasses Panel to resolve the issues at impasse.

WE WILL comply with the determinations reached at mediation-arbitration regarding the weights and factors used in the February 10, 1992, vacancy announcements, to the extent consistent with law, rule, and regulation.

_______________________________

(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 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: 1255 22nd Street, N.W., 4th Floor, Washington, D.C. 20037, and whose telephone number is: (202) 653-8500.

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

*/ The Judge stated that the Authority is not the "sole arbiter" with respect to "non-negotiability claims based upon contract interpretations" and that "it is well established that disputes based upon contract interpretation are best resolved through the parties['] grievance procedures . . . ." Judge's Decision at 7. We view the Judge's statements as dicta and do not adopt those statements.

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