[ v20 p768 ]
20:0768(90)CA
The decision of the Authority follows:
20 FLRA No. 90;
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and Case No. 9-CA-30346
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1501, AFL-CIO
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order to the extent
consistent herewith.
The Authority finds, in agreement with the Judge, that the Respondent
did not violate section 7116(a)(1) and (5) of the Statute when it
implemented a reorganization of the Supplemental Security Income (SSI)
Post Entitlement (PE) Unit at its South Seattle Branch Office on March
7, 1983. The Respondent gave the Union on February 28, 1983, timely
notice of its intention to implement the reorganization on March 7. The
parties met on March 4, 1983, to discuss the specific proposals
concerning the reorganization which had been submitted by the Union.
There was give and take discussion concerning all of the Union's
proposals. The Respondent's representative accepted the Union's
position concerning certain issues, but took the position that the
remaining proposals submitted by the Union involved subject matters
about which the Respondent was not required to bargain. The Union's
representative did not formally challenge the Respondent's contention
that the outstanding issues at the conclusion of the March 4 meeting
involved prohibited or permissive subjects of bargaining, i.e., those
matters which are either outside the scope of bargaining required of an
agency pursuant to section 7106(a) of the Statute or are negotiable only
at the election of an agency pursuant to section 7106(b)(1) of the
Statute. The Union did not seek to further clarify management's
position on the nonnegotiability of its remaining proposals, nor did the
Union file a negotiability appeal with the Authority. Further, the
unfair labor practice complaint in this matter does not allege that the
Respondent violated the Statute by implementing the March 7, 1983
reorganization in the face of outstanding proposals or that the
proposals declared nonnegotiable by the Agency were in fact within the
duty to bargain. Indeed, the record indicates that the Union's
representative checked various sources available to her with regard to
the Respondent's position as to the nonnegotiability of the remaining
proposals and, on March 24, 1983, after the reorganization had been
implemented, submitted new proposals concerning the March 7, 1983
reorganization which were believed to involve mandatory subjects of
bargaining.
In these circumstances, the Authority concludes, in agreement with
the Judge's ultimate conclusion, but for other reasons, that the
Respondent fulfilled its obligation to bargain in good faith with the
Union prior to the implementation of its March 7, 1983 reorganization.
Thus, as found by the Judge, the Respondent reached agreement with
respect to certain subjects of bargaining presented by the Union, and
asserted that the other matters raised by the Union were not negotiable.
The Union did not submit any other proposals or file a negotiability
appeal. Therefore, the Respondent did not violate section 7116(a)(1)
and (5) of the Statute when it implemented the March 7, 1983
reorganization. */ Accordingly, we shall order that the complaint be
dismissed in this regard.
The Judge also concluded that the Respondent did not unlawfully
bypass the exclusive representative in violation of section 7116(a)(1)
and (5) of the Statute by virtue of its March 7, 1983 memorandum
announcing to employees the reorganization implemented that day, and
soliciting their suggestions for improving the workplan. In the
circumstances of this case, we agree with the Judge's conclusion, but
for other reasons. Subsequent to the Judge's Decision herein, the
Authority issued its Decision in Internal Revenue Service (District,
Region, National Office Units), 19 FLRA No. 48 (1985), petition for
review filed, 85-1597 (D.C. Cir. Sept. 20, 1985), in which the
Authority considered whether the agency's conduct therein in
distributing questionnaires to unit employees constituted an unlawful
bypass of the exclusive representative. In relevant part, the Authority
stated:
(A)s part of its overall management responsibility to conduct
operations in an effective and efficient manner, an agency may
question employees directly provided that it does not do so in a
way which amounts to attempting to negotiate directly with its
employees concerning matters which are properly bargainable with
its employees' exclusive representative. In this regard, as the
Authority has previously noted, management must have the latitude
to gather information, including opinions, from unit employees to
ensure the efficiency and effectiveness of its operations.
The Authority concluded in that case that the agency's conduct
therein did not constitute an unlawful bypass of the exclusive
representative because the questionnaires were an information gathering
mechanism, in connection with the management function of studying its
operations, and because there was no indication that management had
attempted to deal or negotiate directly with unit employees concerning
their negotiable conditions of employment.
In the instant case, similarly, the Respondent's conduct did not
constitute a bypass of the Union. In this regard, we note that the
Respondent gave the Union advance notice of the proposed reorganization
and an opportunity to bargain with respect thereto before the
reorganization was implemented and that the Respondent's memorandum to
the employees herein notified them of the reorganization which was
effective that day and further indicated that management was "open to
discussion and will gladly accept suggestions for improving the
workplan." The record fails to show that the Respondent sought to, or
did in fact, negotiate directly with unit employees concerning matters
which are properly bargainable with the Union. Further, it is neither
alleged nor shown that the Respondent received any response used any
information from employees that in any way undermined the status of the
exclusive representative. In our view, the memorandum merely sought to
elicit factual information and the opinions of the affected employees
with regard to the already implemented reorganization. Accordingly, the
Authority concludes that the General Counsel has failed to establish an
unlawful bypass in violation of section 1116(a)(1) and (5) of the
Statute, and therefore shall order that the complaint also be dismissed
in this regard. See also Department of Defense, Office of Dependents
Schools, 19 FLRA No. 94 (1985) and Department of Health and Human
Services, Social Security Administration, 19 FLRA No. 56 (1985).
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-30346 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., November 29, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTE - 20 FLRA No. 91 - Authority's decision
*/ See, e.g., Social Security Administration, Northeastern Program
Service Center, 18 FLRA No. 60 (1985)(proposals 3 and 6); National
Aeronautics and Space Administration and Goddard Space Flight Center, 18
FLRA No. 35 (1985); U.S. Department of Treasury, Internal Revenue
Service, Philadelphia Service Center, 16 FLRA No. 105 (1984); and
General Services Administration, 15 FLRA No. 6 (1984).
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SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1501, AFL-CIO
Charging Party
James S. Sable and
Charles A. Askin, Esqs. For the General Counsel
Mr. Wilson G. Schuerholz For the Respondent
Before: ELI NASH, JR. Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on July 7, 1983
by the Regional Director for the Federal Labor Relations Authority, San
Francisco, California, a hearing was held before the undersigned on
August 10, 1983.
This proceeding arose under the federal Service Labor-Management
Relations Statute (herein called the Statute). It resulted from a
charge filed on April 4, 1983 and amended on June 21, 1983 by American
Federation of Government Employees, Local 1501, AFL-CIO (herein called
the Union) against Social Security Administration, Baltimore, Maryland
(herein called Respondent).
The Complaint alleges that Respondent engaged in unfair labor
practices in violation of Section 7116(a)(1) and (5) of the Statute by
unilateral implementation of subspecialization of the supplemental
security Income Post Entitlement Unit (hereinafter referred to as SSI PE
Unit) prior to completion of bargaining with the Union concerning the
impact and implementation of the subspecialization plan; by its total
refusal to bargain on the same matters in the face of the Union's
modified bargaining proposals after the reorganization was implemented;
and, finally that Respondent engaged in an additional violation of
section 7116(a)(1) and (5) by attempting to bypass the exclusive
representative and to deal directly with unit employees regarding the
same reorganization. Respondent's Answer denies that it engaged in any
unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of fact
On February 28, 1983, Operations Supervisor, Vicki I. Winn, in
Respondent's South Seattle Branch Office provided, John Mack, Alternate
Union representative at the office, with a memorandum dated the same
day. The memorandum proposed the creation of an Overpaymemt submit
within the SSI PE Unit with a "proposed effective date" of March 4,
1983. The SSI PE Unit generally has jurisdiction over all cases related
to an individual's eligibility after the person has been determined to
qualify for SSI benefits. Overpayments are precisely that the name
implies: excessive payments to a recipient. The purpose of the
proposal as stated by the correspondence was to more effectively control
and process SSI overpayments. Thereafter, Supervisor Winn issued a
second memorandum to Mack on Wednesday, March 2, 1983 which confirmed
the Friday, March 4 implementation date, unless the Union notified her
of any impact prior to that time.
The local Union representative, Mary O'Malley, returned to the office
on March 2 from training at the SSA Regional Office, and submitted a
request to bargain regarding the subspecialization on March 3.
Supervisor Winn responded by memorandum of March 3 indicating generally
how the Overpayment and Redetermination submits of the SSI PE Unit were
to function and explained that the Redetermination submits would deal
with redeterminations of eligibility for SSI benefits and miscellaneous
matters affecting a beneficiary. Supervisor Winn's memorandum repeated
the March 4 deadline for the Union to identify any impact and further
indicated that she was willing to "consult" on impact.
Union representative O'Malley testified at the hearing that she saw
impact in several areas such as: lost skills; appraisals; volume of
work; and, grades.
Subsequently, on March 4, O'Malley and Winn met to discuss the
subspecialization proposal. The meeting commenced at about 4 p.m. and
lasted for approximately thirty minutes. During the meeting, O'Malley
provided Winn with a hand-written "Impact Statement" as well as nine
Union proposals concerning the creation of the Overpayment and
Redetermination submits. Those bargaining proposals were as follows:
1. Employees will be rotated out of the subspecialty every 6
months. Appropriate refresher training will be given. The amount
and nature of the training will be deemed appropriate if both the
OS and the CRare mutually agreed on the amount and nature of the
training.
2. Interviews will continue to be handled across the board, as
they are now.
3. Adequate clerical support will be provided the OP CR.
Adequate support means a full time CDC, familiar with the OP
process.
4. Adequate clerical support will be provided the RZ unit.
Adequate support means a full time CDC, familiar with the RZ
process.
5. SSI OP's CR's workload will be restricted to listed OP's and
interviewing.
6. Desk audits will be scheduled for each CR. On the dates of
those audits, all work will be reviewed, including that done
outside the subspeciality.
7. CR's will be advised to inform the OS if they are working
outside the subspecialty for prolonged periods (i.e. interviewing,
etc.) so that this variable can be considered and the work
properly appraised.
8. The OS Hill make every effort to credit employees with work
done outside the subspecialty.
9. The OS will make every effort to identify such variables as
the size of the workload, interviewing pressures, and additional
assignments (this is not an all inclusive list, merely examples)
when evaluating or documenting employee performance.
The parties discussed each item separately. As O'Malley testified:
I stated that we had made a request to bargain; that did want to
discuss the proposals that I had brought, and we did do that; we
went through the proposals, basically one by one. As we did that,
she would state or comment upon the proposal and I noted that on
my proposals. At the end of the session, at about 4:30, she
stated that they needed that weekend to set up for the
implementation and I stated we felt that we were not that far from
an agreement and that I had no real problem with the idea of
setting up over the weekend, but to delay the implementation until
we had completed the bargaining. . .
Later, O'Malley testified that the only real understanding reached
was with regard to Item 1. In discussing the nine proposals, Winn stated
that the parties covered all the proposals:
Each of her proposals, even those that I considered to be
management's right to assign work, and the reason that I did that
is I value her opinion.
Concerning the meeting as a whole, Winn added:
I thought it was a very open meeting, at least from where I was
coming from. I thought Mary was free to say exactly how she felt
on all the issues, even those that I felt were management's right
to assign work. I thought that it was a good, amiable session. I
thought at the conclusion of it that we had agreed on all those
items that I felt were negotiable and nothing was dome on those
that I felt were management's right to assign work.
Winn further characterized the meeting as follows:
Since she agreed that we were fairly close and in agreement with
those issues that were negotiable, that we could go ahead and set
up on Saturday. She stated that O'Malley was clear and specific
on this point and had no objections.
Winn also testified specifically about the nine proposals indicated
numerous areas of give and take between the parties. For example:
Item number one; Mary was concerned with the rotation of the
employees from one subspecialty to the other. Initially, I
proposed that they could probably be rotated, but I didn't have a
specific date in mind. At that meeting, Mary felt that six months
was a good time for them to be in that and I saw no problem with
that so we agreed on the six-month rotation. When we came to
talking about the amount of training that would be given to the
person rotated, I saw that as no change from existing policy. . .
As to item 2, 3 and 4, Winn testified:
. . . After talking with Mary, I thought that we both agreed that
that would not happen; if a claims representative in the
redetermination unit got an interview that involved an
overpayment, they would keep that interview, the person would not
be bounced back up front; so I thought we agreed on that one.
Winn's testimony is clearly that she thought items 3 and 4 involved
management rights and Here non-negotiable.
On item 5, Winn's testimony is as follows:
. . . Originally, I had, in my original proposal, I had the
overpayment claims representative handling those cases in which we
had identified an overpayment and a redetermination needing to be
done at the same time. After talking with Mary, I thought we
agreed on that and in my final draft, my final memo when I made
the assignment of work, I altered it to fit this so that the
overpayment claims representative would not be doing scheduled
redetermination and by scheduled, mean the list that came out in
February.
On items 7, 8 and 9, Winn states that there was agreement that these
items represented no change from what was currently being done. She
concluded by saying.
I thought not only were we very close, I thought we agreed on
those items that I thought were negotiable. The ones that were
not negotiable, I let her know that, that I considered those to be
assignment of work, which is a management right.
O'Malley also indicated: "I stated that I felt we were not that far
from agreement. . ."
O'Malley made side notes on the items discussed and it is clear from
the record that the parties did not reach agreement on items 2, 3, 4, 5
and 6 as these were contended by Winn to be work assignments and
non-negotiable. Winn's written statement of March 7 also provides her
position on these matters.
Thereafter, O'Malley who did not realize the possibility existed that
at least some of these items might have been non-negotiable apparently
sought to file a negotiability appeal. Thus, O'Malley testified that
her contacts with the Federal Mediation and Conciliation Service and the
Authority, while she did not question either of these agencies about
specific proposals, led her to draw a conclusion from what she learned
that proposals 2, 3, 4, 5 and 6 here indeed non-negotiable. For that
reason as later developed, she resubmitted proposals to Winn on March
24.
According to O'Malley, Winn stated that she needed the weekend to set
up for implementation. O'Malley ended the meeting by requesting that
implementation be delayed until bargaining had been completed. Mrs.
Winn recalls the statement, but made no response because according to
her, she thought that an agreement bad been reached. O'Malley says that
Winn indicated she would study the proposals and get back to her, but
indicated that management would set up for the reorganization over the
weekend.
On the following Monday, March 7, Ms. O'Malley received a package of
three memoranda from Winn, all dated March 7. The first memorandum was
Winn's response to O'Malley's proposals on the subspecialization scheme.
Winn informed O'Malley that although the Union had not identified a
substantial impact of the proposed change, she had nevertheless
"considered" the proposals and advised the Union of her conclusion that
their proposals were already in current practice or were not negotiable.
Winn's memoranda made no reference to any "agreement" between the
parties.
The other memoranda were addressed to the SSI PE Unit employees
generally and dealt with the logistics of implementation of the proposed
change. Winn therein informed the affected employees that work
assignments would commence on Tuesday, March 8 and further solicited the
employees' own proposals for implementing stating that: "I am open to
discussion and will gladly accept suggestions for improving the
workplan."
As noted above, local Union representative Mary O'Malley received
this memorandum together with Winn's response to the Union's proposals
concerning the SSI PE Unit and the memoranda to the employees in the SSI
PE Unit the same day.
After receiving these documents, O'Malley sought official time to
assess the Union's bargaining posture in view of Winn's action. In
making her request for time, O'Malley renewed her demand in writing that
implementation be delayed until bargaining on the matter had finished.
The official time request was not granted until March 11, three days
after the asserted date of implementation.
As already noted, O'Malley subsequently attempted to have the Federal
Mediation and Conciliation Service intervene in the case. The informed
Winn of this effort on March 11 and repeated her request to delay
implementation for a third time. After contact with the Federal
Mediation and Conciliation service proved unhelpful since implementation
had already been effectuated, O'Malley submitted different proposals to
Winn on March 24. The newly submitted proposals are clearly mandatory
subjects of bargaining.
It is uncontraverted that Winn never responded to the new proposals,
and in fact, Winn admitted she did not even bother to read the
proposals. The implementation became effective on March 15, 1983.
Discussion and Conclusions
A. Whether Respondent Violated Section 7116(a)(1) And (5) By
Implementing Subspecialization Of The SSI Post Entitlement Unit At Its
South Seattle Branch Office Prior To The Completion Of Bargaining With
The Union Regarding The Impact And Implementation Thereof
Section 7103(a)(12) defines collective bargaining as:
"the performance of the mutual obligation of the representative of
an agency and the exclusive representative of employees in an
appropriate unit in the agency to meet at reasonable times and to
consult and bargain in a good-faith effort to reach agreement with
respect to the conditions of employment affecting such employees
and to execute, if requested by either party a written document
incorporating any collective bargaining agreement reached, but the
obligation referred to in this paragraph does not compel either
party to agree to a proposal or to make a concession."
Further, the Authority has indicated that the mere fact that agency
management is not persuaded to change its position during negotiations
does not constitute a showing of bad faith. Bureau of Prisons,
Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA No. 111 (1983).
Respondent does not contest that it had an obligation to bargain on
the impact and implementation of its reorganization, but submits that an
impasse existed following the March 4 meeting and that it was free to
impose changes not exceeding its proposals after bargaining to impasse.
With regard to proposals 2, 3, 4, 5 and 6 Respondent claims that
these matters were all non-negotiable since they conflict with 7106(a)
and (b) rights to assign work and direct the work force and to determine
the numbers, types and grades of employees.
Regarding the bargaining proposals, the General Counsel asserts that
even if the proposals involved permissive subjects of bargaining a
finding that Respondent's conduct violated the Statute is not precluded.
Recording to the General Counsel, Section 7106(b) specifically provides
that certain "non-negotiable" subjects are appropriate for collective
Bargaining at the election of the agency. Accordingly, unions can-- and
do-- make proposals on non-mandatory subjects, presumably at the expense
of less ambitious, "fall back" impact and implementation proposals so
long as it appears they may secure more than impact and implementation
concessions. The General Counsel also submits that once an agency
elects to conduct bargaining on such permissive proposals, it has an
obligation to advise the Union that it regards certain proposals as
non-negotiable to afford the Union the opportunity to return to the
table with mandatory proposals such as impact and implementation
proposals. The General Counsel's position, is in essence, that such a
position is particularly warranted where, as here, Respondent agreed to
one Union "non-negotiable" proposal, number 5, relating to a different
assignment of the work than management proposed. The General Counsel
thus contends that Respondent cannot be allowed to unilaterally decide
that union proposals are non-negotiable and implement a change without
an adequate explanation and an adequate opportunity to respond. The
rationale being that to hold Respondent to a lesser standard would be to
ignore the type of dignity and directness which the Authority has
required parties to collective bargaining to accord to each other. U.S.
Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology
Center, Newark, Ohio, 4 FLRA No. 70 (1980)): Thus, the General Counsel
claims that Respondent's premature near-simultaneous notice to the Union
of its intent to implement while delaying the Union's official time
request to permit further bargaining was not consistent with the
Statutory obligation to bargain in good faith. In short, the General
Counsel maintains that Respondent's "non-negotiable" defense is negated
since at least two issues separating the parties were impact and
procedural proposals and thereby negotiable. According to the General
Counsel these negotiable subjects regarding procedures for
implementation had yet to be resolved when Respondent unilaterally
implemented the change.
The General Counsel's overall theory of the case seemingly rises or
falls on whether the Union had sufficient notification to prepare for
the March 4 negotiation session. Unlike the General Counsel, I do not
consider the notice, first given to the Union on February 28, as "near
simultaneous". In my view the Union received ample notification, as
evidenced by the proposals prepared by it, to allow it to prepare for
meaningful negotiations. Notwithstanding that advance notification, the
Union did not appear to be prepared to proceed with bargaining if its
proposals were rejected.
A review of the March 4 bargaining session demonstrates that
Respondent had made its decision to reorganize and intended to deal with
the Union only on those matters which did not infringe on its management
rights or which required negotiation. During the session the parties
did engage in meaningful discussions with regard to the reorganization
and indeed discussed the proposals submitted by the Union, agreeing to
at least two proposals. While no impasse */ was declared the
Respondent's position was that it intended to go ahead with the
reorganization and the Union agreed that the reorganization could be set
up over that weekend. The Authority has held an agency's declaring a
matter non-negotiable does not constitute bad faith bargaining where at
the time of declaration of non-negotiability, no established precedent
existed which was despositive of the negotiability issue. See, 182
Tactical Air Support Group, Illinois Air National Guard, the Adjutant
General of Illinois, Springfield, 10 FLRA 381. Although, the Union's
position as bargaining ended was neither filed nor uncompromising, as
O'Malley agreed that Respondent could proceed with a reorganization
set-up over that weekend, Respondent's position was clearly that it
intended to proceed with the reorganization. Respondent did not suggest
further bargaining nor does the record reveal that Respondent had any
interest in continuing bargaining. Furthermore, the Union apparently
felt further bargaining would be fruitless and it sought advice
concerning other avenues such as the Mediation Service. Moreover, the
Union presented no objections to Respondent's position on
non-negotiability of the six items and it made no specific requests for
further negotiations on March 4. Under all the circumstances, it is my
view that no reason existed to believe that further bargaining would be
beneficial on the six remaining items since Respondent's position was
that it had no obligation to bargain on those matters.
With regard to the General Counsel's viewpoint that the Union should
be allowed to respond at some point to Respondent's position on
non-negotiability, I agree. Notwithstanding my agreement, the time to
respond was not three weeks later, following implementation. In order
to obtain additional time, it is my opinion that the Union should have
requested an established time frame or at least requested additional
meetings with a specific format during the March 4 meeting, if it
desired to continue bargaining. Further evidence that bargaining had
reached impasse is shown by O'Malley's contacts with the FMCS and the
Authority indicating that she also felt that bargaining had been
concluded. While Union representative O'Malley expresses a view that
bargaining had not ended, it is clear that Respondent was not prepared
to move from its position that certain matters were non-negotiable nor
was the Union prepared to concede, at that time, that its proposals were
indeed non-negotiable. The Union reached this conclusion only after
meeting and conferring with other officials. Inasmuch as there is no
evidence that either party was willing to move from its respective
position, it is my view that an impasse did exist and accordingly,
Respondent could, as it did, implement its proposals.
Accordingly, it is found that Respondent engaged in good faith
bargaining on March 4, and once it felt that agreement had been reached
concerning the proposals which it felt were negotiable, it implemented
those proposals. In such circumstances, it is found that Respondent,
did not violate section 7116(a)(1) and (5) of the Statute by
implementing subspecialization of the SSI Post Entitlement Unit prior to
completion of bargaining with the Union regarding impact and
implementation.
B. Whether Respondent Violated Section 7116(a)(1) And (5) In
Bypassing The Union And Attempting To Deal Directly With Unit Employees
The General Counsel contends that Respondent violated section
7116(a)(1) and (5) of the Statute when it bypassed the Union and
attempted to deal directly with unit employees. The facts surrounding
this alleged violation stem from the March 7 memorandum circulated to
employees by Mrs. Winn stating, "I am open to discussion and will gladly
accept suggestions for improving the work plan."
Case law establishes that such communications rise to the level of an
unfair labor practice only when that communication constitutes an effort
to undermine the status of the exclusive representative either by
attempting to bargain directly with unit employees, urging employees to
put pressure on the exclusive representative to pursue certain action,
or when they threaten or promise benefits to employees. Kaiserslautern
American High School, Department of Defense Dependent Schools, Germany
North Region, 9 FLRA No. 28 (1982); Division of Military and Naval
Affairs, State of New York, Albany, New York, 8 FLRA No. 71 (1982).
According to the General Counsel, this communication was an attempt
to solicit feedback from unit employees on a subject which was in
negotiation and was clearly an attempt to circumvent the Union and
weaken its position.
In order to find that Respondent was attempting to circumvent its
bargaining obligation, it would be necessary for the undersigned to have
already found that the parties were still engaged in bargaining and that
such a communication was designed to weaken the Union's position in that
bargaining. I am satisfied on this record, an impasse in bargaining
existed and that Respondent had no such motivation, but that the
communication was merely a solicitation of employee suggestions on
improvement not designed to aid in avoiding its obligation to bargain.
Accordingly, it is found that Respondent's action herein did not
constitute a bypass of the exclusive representative in violation of
section 7116(a)(1) and (5) of the Statute.
C. Whether Respondent Violated Section 7116(a)(1) And (5) By Its
Refusal To Respond And/Or To Bargain When The Union Renewed Its Request
With Different Bargaining Proposals
Based on the record as a whole, I also reject the General Counsel's
position that Respondent violated section 7116(a)(1) and (5) by refusing
to respond to and bargain with the Union concerning the renewed request
to bargain submitted by the Union on March 24. The General Counsel's
sole argument in this regard is that Mrs. Winn's conduct does not
comport with the "most fundamental notions of decency and manners".
Citing, U.S. Air Force, Air Force Logistics Command, Aerospace Guidance
and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (1980). Decency and
manners most certainly have a place in communications in labor-relations
matters. However, with respect to bargaining there must be an
obligation to meet and discuss matters. Here the Respondent had
discussed and in its view reached an impasse concerning matters in the
SSI PE Unit reorganization. Since, it had reached impasse and already
implemented its reorganization its view was that bargaining had been
concluded, agreement reached and that it had no obligation to reopen
this matter. Although Mrs. Winn's conduct in not reading the second set
of proposals may not have been civil, without an obligation to bargain,
it was not conduct which violated the Statute.
In light of the above, it is found that Respondent did not violate
section 7116(a)(1) and (5) of the Statute by its refusal to respond to
the Union's renewed request to bargain on March 24.
Accordingly, it is recommended that the Authority adopt the
following:
ORDER
It is hereby ordered that the Complaint in Case No. 9-CA-30346, be
and it hereby is dismissed.
(s)---
ELI NASH, JR.
Administrative Law Judge
Dated: April 25, 1984
Washington DC
FOOTNOTE - 20 FLRA No. 91 - ALJ's Decision
*/ Citing, U.S. Army Corps of Engineers, Philidelphia District, 6
A/SLMR No. 673 (1976), Respondent asserts that an impasse "is simply a
failure to reach agreement after having negotiated." That case, however,
involved substantially more meetings and time than the one thirty minute
session involved herein. While I agree with the principal enunciated,
therein I do not, agree that the case is entirely dispositive of the
matter here.