51:0357(33)CA - - SSA Area IX and AFGE Council 147 - - 1995 FLRAdec CA - - v51 p357

[ v51 p357 ]
51:0357(33)CA
The decision of the Authority follows:

51 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

AREA IX OF REGION IX ⁽¹⁾

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 147, AFL-CIO

(Charging Party/Union)

SF-CA-20035

_____

DECISION AND ORDER

October 13, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and

Tony Armendariz, Member.

I. Statement of the Case

The Administrative Law Judge issued the attached decision, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to notify the Union and negotiate with it regarding the impact and implementation of the Respondent's decision to detail an employee.

The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions.⁽²⁾

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II.Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Area IX of Region IX shall:

1.Cease and desist from:

(a) Changing working conditions of unit employees by detailing unit employees for more than 30 days outside the commuting area, without first notifying AFGE Council 147, the agent of the American Federation of Government Employees, AFL-CIO, the certified bargaining representative of unit employees, and affording it an opportunity to bargain regarding the procedures to be observed in implementing the change and appropriate arrangements for employees who have been, or may be, adversely affected by the implementation of any such change.

(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) Upon request, bargain with AFGE Council 147 concerning the impact and implementation of the detail of James Peuchner which occurred in July 1991 and apply retroactively the terms of any agreement which may result.

(b) Notify AFGE Council 147 of any proposed detail of a unit employee for more than 30 days outside the commuting area, and, upon request, negotiate with AFGE Council 147 as to the procedures to be observed in implementing such details and appropriate arrangements for employees adversely affected by such detail.

(c) Post at its facilities in Social Security Administration, Area IX of Region IX, 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 Area IX Director and shall be posted and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including 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 Regulations, notify the Regional Director of the San Francisco Region, Federal Labor Relations Authority, in writing, within 30 days 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 change working conditions of unit employees by detailing unit employees for more than 30 days outside the commuting area, without first notifying AFGE Council 147, the agent of the American Federation of Government Employees, AFL-CIO, the certified bargaining representative of unit employees, and affording it an opportunity to bargain regarding the procedures to be observed in implementing the change and appropriate arrangements for employees who have been, or may be, adversely affected by the implementation of any such change.

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, upon request, bargain with AFGE Council 147 concerning the impact and implementation of the detail of James Peuchner which occurred in July 1991 and apply retroactively the terms of any agreement which may result.

WE WILL notify AFGE Council 147 of any proposed detail of a unit employee for more than 30 days outside the commuting area, and, upon request, negotiate with AFGE Council 147 as to the procedures to be observed in implementing such details and appropriate arrangements for employees adversely affected by such detail.

_______________________
(Activity)

Dated:___________ By: __________________________

(Signature) (Title)

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

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is 901 Market Street, Suite 220, San Francisco, CA 94103-1791 and whose telephone number is: (415) 356-5000.

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

SOCIAL SECURITY ADMINISTRATION,

AREA IX OF REGION IX

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 147, AFL-CIO

Charging Party

Case No. SF-CA-20035

Ronald L. Townsend
For the Respondent

Lisa Lerner Miller, Esq.
For the General Counsel

Craig Campbell
For the Charging Party

Before: SALVATORE J. ARRIGO
Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).

Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the San Francisco Regional Office, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by detailing a unit employee to another position without providing the Union with notice and an opportunity to negotiate on the impact and implementation of the action.

A hearing on the Complaint was conducted in Phoenix, Arizona, at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally.⁽¹⁾ Briefs were filed by Respondent and the General Counsel and have been carefully considered.

Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:

Findings of Fact, Discussion and Conclusions of Law

At all times material the American Federation of Government Employees, AFL-CIO (AFGE herein) has been the exclusive collective bargaining representative of various of Respondent's employees and AFGE Council 147 has been the agent of AFGE for the purpose of representing employees located in Respondent's Region IX facilities. The basic facts herein are not in dispute. On July 28, 1991 Respondent detailed Claims Representative James Peuchner from his assigned duty station in the Mesa, Arizona field office to San Francisco, California, where he functioned as a training instructor. The detail outside the Mesa commuting area was to a position which was a promotion for unit employee Peuchner to a position outside of the bargaining unit. The detail concluded on November 3, 1991 when Peuchner returned to Mesa, Arizona. Respondent did not use competitive merit promotion procedures when selecting Peuchner for the detail and the Union did not receive prior notice and an opportunity to negotiate with Respondent concerning the "impact and implementation" of the detail.

Section 7106(a) of the Statute sets forth various subjects over which agency management is not required to negotiate with a collective bargaining representative. Notwithstanding these "management rights", under section 7106(b) of the Statute an agency is obligated to negotiate on so-called "impact and implementation" matters, which are:

(2) procedures which management officials of the agency will observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

Peuchner's detail had an adverse affect upon working conditions of the other Claims Representatives in the Mesa facility. Thus, the record reveals that when Peuchner went on the detail, the approximately 11 other Claims Representatives in the Mesa facility were required to perform additional work assignments occasioned by the redistribution of the work previously performed by Peuchner such as claims processing, interviewing claimants and responding to telephone inquires. Additional work assignments to a Claims Representative could conceivably negatively impact on the employee's performance evaluation. Other matters of concern to the Union included procedures involving the approval authority for Peuchner's requests for annual and sick leave and who would appraise Peuchner during his detail and for the year overall.

Respondent contends it had no obligation to negotiate with the Union concerning Peuchner's detail in that the personnel action was effectuated in accordance with the terms of the parties' collective bargaining agreement and thus the action was "covered by" the agreement. The General Counsel contends Respondent violated section 7116(a)(1) and (5) of the Statute by failing to notify the Union and negotiate with it regarding the impact and implementation of Peuchner's detail. The General Counsel takes the position that the terms of the collective bargaining agreement do not "waive" the Union's statutory right to bargain on the impact and implementation of the detail but, rather, the agreement clearly preserves the Union's statutory right to negotiate on the matter.

The parties' collective bargaining agreement, in effect at all times relevant hereto, was entered into in January 1990. However, the relevant terms of that agreement were negotiated by the parties between May and July 1988. The agreement consists of 38 articles plus an appendix consisting of numerous Letters of Understanding and Clarification (LOUs), which letters were exchanged during the 1988 national negotiations.

Article 26 of the agreement, captioned "Merit Promotion", is comprised of 17 sections, the majority of which contain numerous subsections. The article occupies over 16 pages of the 119 pages in the basic collective bargaining agreement. Provisions addressing competitive actions are far more numerous and specific than those regarding non-competitive actions. The sections are entitled: Purpose and Policy; Definitions; Applicability of Competitive Procedures; Applicability of Non-Competitive Actions; Vacancy Announcements and Areas of Consideration; Factors and Weights; Employee Applications; Priority Consideration, Promotion Committee; Establishing the Best-Qualified List; Selection; Employee Information; Union Review of Competitive Actions; Career Ladder Positions; Announcement of Selections; Temporary Promotions; and Miscellaneous. The portions of Article 26 particularly relevant herein are as follows:

Section 1-Purpose and Policy
The parties agree that the purpose and intent of the provisions contained herein are to ensure that merit promotion principles are applied in a consistent manner with equity to all employees and without regard to political, religious, or labor organization affiliation or non-affiliation, marital status, race, color, sex, national origin, non-disqualifying physical handicap, or age, and shall be based solely on job-related criteria. This article sets forth the merit promotion system, policies and procedures applicable to bargaining unit positions in the Administration.

Section 2-Definitions
For the purpose of this article, the definitions contained in Chapter 335 and related chapters of the OPM Federal Personnel Manual shall be incorporated as a part of this Agreement.

Section 3-Applicability of Competitive Procedures
A. Promotions. Any selection for promotion must be made on a competitive basis unless it is excluded by Section 4 below.

. . . .

C. Details. Competitive procedures will be applicable to any selection for detail of more than 120 days to a higher graded position, to a position with known promotional potential, or a position which provides specialized X-118 or X-118C experience required for subsequent promotion to a designated higher grade position.

. . . .

Section 4-Applicability of Non-Competitive Actions
A. Promotions. The following promotions may be taken on a non-competitive basis unless otherwise provided.

. . . .

7. Temporary promotions to a higher grade totaling 120 days or less during any 18-month period. If a temporary promotion which was not expected to exceed 120 days was originally made on a non-competitive basis, any extension beyond 120 days must be made under competitive procedures.

. . . .

C. Details. The following details may be made on a noncompetitive basis:

1. Details of 120 days or less to a higher grade position (see Section 16 of this article).

2. Details of 120 days or less to a position at the same or lower grade with known promotional potential, or to a position which provides specialized X-118 or X-118C experience required for subsequent promotion to a designated higher grade position.

3. Details to a position at the same or lower grade with no known promotional potential, or to a position which does not provide specialized X-118 or X-118C experience required for a subsequent promotion to a designated higher grade position.

4. Details to unclassified duties.

5. Promotional credit, or points, will not be given for such details.

. . . .

Section 16-Temporary Promotions
When employees are temporarily assigned to a position of a higher grade for a period in excess of 30 days, the assignment must be made via temporary promotion effective the first day of the assignment.

Article 27 is entitled "Details", and provides as follows:

Section 1-Definition
A detail is the temporary assignment of an employee to a different position or the same position for a specific period, with the employee returning to his/her regular duties at the end of the detail.

Section 2-Documentation
Details in excess of 30 calendar days will be reported on Standard Form 52 (SF-52) and maintained as a permanent record.

Section 3-Duration
The Administration is responsible for keeping details within the shortest practicable time limits and assuring that details do not compromise the open competitive principle of the merit system.

Section 4-Higher Graded Duties
Those details to higher graded positions or to positions with known promotional potential which require competition will be handled in accordance with Article 26.

Section 5-Lower Graded Duties
Should the requirements of the employer necessitate an employee being detailed to a lower-graded position, it will not adversely affect the employee's ability to bid on any job for which he/she would have been eligible had he/she not been detailed to the lower level job.

Section 6-Union Officials
Management will make every effort to avoid placing a union official on a detail that would prevent that official from performing his/her representational functions. The employer agrees to notify the Union prior to placing any designated union representa- tives on detail away from the representative's normal duty station.

Section 7-Reassignments
When an employee is reassigned to a different position, the employee will be given a reasonable period in which to become proficient. If he or she cannot attain satisfactory performance, serious consideration will be given to reassign the employee back to the previous position or a new position at the same grade level.

Section 8-Assignment of Duties for Medical Reasons
Upon request, the Administration will make every reasonable effort to assign limited duties to an employee who is temporarily unable to perform the full range of his/her assigned duties because of medical reasons. The Administration may require sufficient medical documentation in support of the request.

A Letter of Understanding between the parties, dated July 19, 1988, states:

LETTER OF UNDERSTANDING

The purpose of this letter is to document the following understandings that were reached on the duty to bargain when bargaining unit employees are detailed or reassigned.

1. In the Field Office Component:

a.The Administration will not carry over into the new agreement its use of the Feigenbaum arbitration award to allege union waiver of any duty to bargain when employees are detailed or reassigned. This understanding will not affect the disposition of carryover agreement provisions as adjudicated by Arbitrator Feigenbaum.

b.Whether there is a duty to bargain on details or reassignments will be governed by 5 USC 71 and the new agreement. However, it is understood that notice to the union and bargaining will not be required for the detail of a single employee for 30 calendar days or less within the commuting area.

c.Past practices will otherwise apply to details of 30 days or less in the commuting area of one employee. Employee hardship will be a consideration.

d.The union will be given notice of reassign-ments involving either a permanent change in the employee's position (personnel papers are prepared which will generate an SF-50) or a permanent change in location involving a move to a different installation. Whether there is a duty to bargain will be deter-mined by 5 USC 71.

2.In all other components, the parties will continue to apply the law and the agreement and past practices to detail and reassignment situations in determining duty to bargain rights and responsibilities.

The Authority has held that an agency has the duty to bargain over the impact and implementation of its decision to detail employees, unless the union has in some manner given up its right to bargain or the impact of the change is de minimis. See Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060 (1991)(Marine Corps Logistics), rev'd on other grounds, 962 F.2d 48 (D.C. Cir. 1992). I find and conclude the impact of the detail herein is not de minimis. Accordingly, the next question is whether under the terms of the collective bargaining agreement Respondent was privileged to implement the detail without providing the Union with notice and an opportunity to negotiate on the matter.

On July 12, 1993 in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), the Authority articulated a new approach in resolving unfair labor practice cases where the underlying dispute is governed by the interpretation and application of specific terms of the parties' collective bargaining agreement. The Authority stated it would no longer apply the "clear and unmistakable waiver" analysis. Id. at 13. The Authority announced its new approach generally as follows:

We now hold that when a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the Authority, including its administrative law judges, will determine the meaning of the parties' collective bargaining agreement and will resolve the unfair labor practice complaint accordingly. Id. at 20.

The Authority also stated, at 21:

. . . in determining the meaning of the collective bargaining agreement, the administrative law judge should consider, as necessary, any alleged past practices relevant to the interpretation of the agreement. In cases where the judge's interpretation of the meaning of the parties' collective bargaining agreement is challenged on exceptions, the Authority will determine whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts.

Since briefs were filed herein the Authority has also modified its approach when considering whether matters in dispute are "covered by" or "contained in" an agreement so as to preclude further bargaining on the subject. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), the Authority, inter alia, reviewed various prior decisions dealing with this issue and went on in SSA, at 1018-1019, to set forth the "framework" it would use to determine whether a contract provision "covers" a matter in dispute, as follows:

Initially, we will determine whether the matter is expressly contained in the collective bargaining agreement. In this examination, we will not require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute. (Citation omitted).

If the provision does not expressly encompass the matter, we will next determine whether the subject is "inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract." (Citations omitted). In this regard, we will determine whether the subject matter of the proposal is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision. If so, we will conclude that the subject matter is covered by the contract provision. . . .

We recognize that in some cases it will be difficult to determine whether the matter sought to be bargained is, in fact, an aspect of matters already negotiated. For example, if the parties have negotiated procedures and appropriate arrangements to be operative when management decides to detail employees . . . it may not be self-evident that the contract provisions were intended to apply if management institutes a wholly new detail program, or decides during the term of the contract to detail employees who previously had never been subject to being detailed. To determine whether such matters are covered by an agreement, we will examine whether, based on the circumstances of the case, the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances. In this examination, we will, where possible or pertinent, examine all record evidence. (Citation omitted). If the subject matter in dispute is only tangentially related to the provisions of the agreement and, on examination, we conclude that it was not a subject that should have been contemplated as within the intended scope of the provision, we will not find that it is covered by that provision. In such circumstances, there will be an obligation to bargain.

The Authority subsequently applied the SSA test in U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California, 48 FLRA No. 10 (1993) and Social Security Administration, Douglas Branch Office, Douglas, Arizona, 48 FLRA No. 33 (1993).

In the case herein, Peuchner received a detail of less than 120 days to a location outside of his commuting area. The detail included a temporary promotion and was made on a non-competitive basis. Thus Peuchner's type of detail was clearly treated in Articles 26 and 27 of the collective bargaining agreement and perhaps without any other consideration the Union, under SSA, would not be entitled to notice and an opportunity to negotiate concerning the impact and implementation of the detail. However, the agreement herein also includes the LOU of July 1988, above, which essentially acknowledges past problems between the parties regarding duty to bargain and Union waiver questions, and reflects upon the parties' intent regarding future bargaining obligations. I find particularly significant the language of paragraph 1.b. of the LOU, the first sentence of which clearly states that the question of whether the duty to bargain on details exists is to be governed not only by the specifics of the contract, but Statutory considerations as well, thus leading to the conclusion that the contract was not meant to cover all aspects of details. More significantly however, in the next sentence the Union unmistakably waives any right to notice or bargaining as to details involving a single employee for 30 calendar days or less within the commuting area. Expressly agreeing that no requirement for notice or bargaining for a specific type of detail strongly suggests to me that the Union was not agreeing to waive any further rights concerning other types of details. Indeed, the presence of this express waiver, coupled with the stated preservation of Statutory rights, indicates the Union was consciously reserving the Statutory right to notice and an opportunity to bargain on all other forms of details.

The testimony of the Union's Regional Vice-President, Craig Campbell, supports this conclusion. Campbell was a member of the Union's negotiating committee in 1988 and was one of the Union's four representatives who met with four management representatives when the LOU was negotiated. According to Campbell, when the LOU was agreed to, the understanding at the bargaining table was, after much debate, that the Union secured the right to notice and an opportunity to bargain on all reassignments and details except for the one waiver that was expressed in paragraph 1.b. of the LOU.⁽²⁾

Under the Statute an agency has the obligation to negotiate with a union on the impact and implementation of a change in a working condition such as a detail where the impact is not de minimis nor otherwise privileged. Marine Corps Logistics. The impact has been found not to be de minimis. Respondent's Statutory bargaining obligation could have been vitiated if the matter was "covered by" the agreement. SSA. I have found and concluded it was not.⁽³⁾ Accordingly, in all the circumstances herein I conclude Respondent violated section 7116(a)(1) and (5) of the Statute by its failure to notify the Union and provide it with an opportunity to negotiate on the impact and implementation regarding the Peuchner detail prior to its implementation as alleged in the Complaint and I recommend the Authority issue the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Social Security Administration, Area IX of Region IX, shall:

1. Cease and desist from:

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaranteed under 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:

(c) Post at its facilities in Social Security Administration, Area IX of Region IX, 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 Area IX Director and shall be posted and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including 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 of the

San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days of this Order as to what steps have been taken to comply herewith.

Issued, Washington, DC, February 3, 1994

___________________________
SALVATORE J. ARRIGO
Administrative Law Judge

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights guaranteed under the Federal Service Labor-Management Relations Statute.

_____________________________
(Activity)

Date:____________ 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 of the Federal Labor Relations Authority, San Francisco Region, 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.

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

Authority's Footnotes Follow:

1. During the pendency of this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency. The case caption has been modified to reflect that change.

2. One of the Respondent's exceptions concerns the Judge's denial, during the hearing, of its motion to continue the hearing until an additional witness for the Respondent could appear, and requests that the case be remanded to the Judge to reopen the hearing for that testimony. The Authority's Regulations "grant wide discretion to Administrative Law Judges to determine who may testify or participate in a hearing, as well as the extent of such participation." Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697, 709 (1991), enforcement denied on other grounds, 991 F.2d 285 (5th Cir. 1993) (Border Patrol). See 5 C.F.R. § 2423.19(g), (i), and (m). This discretion includes determining "[w]hether additional evidence or arguments should be allowed in a record . . . ." Border Patrol, 43 FLRA at 710. The Respondent has not established that the Judge abused his discretion by determining that the testimony was not necessary or probative to the resolution of the issues presented and by closing the hearing without receiving the testimony. Accordingly, we affirm the Judge's ruling and deny the Respondent's exception in this regard.

ALJ's Footnotes Follow:

1. Counsel for the General Counsel's unopposed Motion to Correct Transcript is hereby granted.

2. In his brief, Respondent's representative states, "Had Respondent been afforded an opportunity to call its witness to rebut such testimony, the record would have shown that Respondent agreed to bargain only . . . when required by 5 USC 71 and the new agreement." At the hearing Respondent's representative stated that an individual he intended to call as a witness was unavoidably detained by a snowstorm from being present at the hearing as scheduled and that she also would not be available on the following day because of a "hearing" of an undisclosed nature in Oklahoma City, Oklahoma. When questioned as to what the witness would testify to if called, Respondent's representative indicated that the witness would testify that the language in the contract upon which Respondent relies essentially reflects what the parties agreed to; that the witness would not give testimony regarding the meaning of the language; but just testify that the contract language is present by agreement of the parties. In these circumstances I determined the individual's testimony would not be necessary or probative to the resolution of the issues presented and accordingly closed the hearing without receiving the individual's testimony.

3. Indeed, under the parties' collective bargaining agreement Respondent acknowledged it was obligated to negotiate with the Union as required by the Statute.

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51:0357(33)CA - - SSA Area IX and AFGE Council 147 - - 1995 FLRAdec CA - - v51 p357

Authority's Footnotes Follow:

ALJ's Footnotes Follow: