[ v02 p560 ]
02:0560(73)CA
The decision of the Authority follows:
2 FLRA No. 73
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY ADMINISTRATION,
GREAT LAKES PROGRAM SERVICE CENTER,
CHICAGO, ILLINOIS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
SOCIAL SECURITY LOCAL 1395
Complainant
Assistant Secretary
Case No. 50-17087(CA)
DECISION AND ORDER
ON JUNE 21, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) AND (1) OF
EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE COMPLAINANT FILED AN
ANSWERING BRIEF.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741,JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE RESPONDENT'S EXCEPTIONS AND THE COMPLAINANT'S ANSWERING
BRIEF, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATION. /1/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER, CHICAGO, ILLINOIS,
SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO NEGOTIATE WITH LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, CONCERNING THE INDIVIDUAL PERFORMANCE ASSESSMENT SYSTEM FOR
TRAINEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) WITHDRAW, IF ALREADY IMPLEMENTED, ANY INDIVIDUAL PERFORMANCE
ASSESSMENT SYSTEM FOR
TRAINEES.
(B) NOTIFY LOCAL 1395, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, AS THE
AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS),
THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, OF ANY PROPOSED INDIVIDUAL
PERFORMANCE ASSESSMENT
SYSTEM FOR TRAINEES, AND, UPON REQUEST, NEGOTIATE IN GOOD FAITH, TO
THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON ANY SUCH PROPOSAL.
(C) POST AT ITS FACILITIES AT THE GREAT LAKES PROGRAM SERVICE CENTER
COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE GREAT LAKES
PROGRAM SERVICE CENTER AND THEY SHALL BE POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO BARGAIN WITH LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, WITH RESPECT TO ANY INDIVIDUAL
PERFORMANCE ASSESSMENT SYSTEM FOR TRAINEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL WITHDRAW ANY INDIVIDUAL PERFORMANCE ASSESSMENT SYSTEM FOR
TRAINEES WE HAVE IMPLEMENTED AND NOTIFY LOCAL 1395, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, THE AUTHORIZED REPRESENTATIVE OF THE
NATIONAL OFFICE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS) OF ANY
PROPOSED INDIVIDUAL PERFORMANCE ASSESSMENT SYSTEM FOR TRAINEES, AND,
UPON REQUEST, NEGOTIATE TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON ANY SUCH PROPOSAL.
(ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF THE 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, WHOSE
ADDRESS IS: ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN
STREET, CHICAGO, ILLINOIS 60604; AND WHOSE TELEPHONE NUMBER IS: (312)
353-6746
MR. LEE LANGSTER
EXECUTIVE VICE PRESIDENT
LOCAL 1395
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
600 WEST MADISON STREET
CHICAGO, ILLINOIS 60606
FOR THE COMPLAINANT
MR. FRANCIS X. DIPPEL
MANAGEMENT REPRESENTATIVE
GREAT LAKES PROGRAM SERVICE CENTER
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE
SOCIAL SECURITY ADMINISTRATION
1200 WEST HIGH RISE BUILDING
6401 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH THE NOTICE OF
HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, ALL
PROCEEDINGS AFTER JANUARY 1, 1979, HAVE BEEN CONDUCTED BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY AND THIS DECISION IS ISSUED IN THE
NAME OF THE AUTHORITY PURSUANT TO TRANSITION RULES AND REGULATIONS,
FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION
2400.2).
ON, OR ABOUT, SEPTEMBER 26, 1978, COMPLAINANT FILED A CHARGE AND ON
NOVEMBER 20, 1978, FILED A COMPLAINT ALLEGING VIOLATIONS OF SECTIONS
19(A)(1) AND (6) OF THE ORDER AS THE RESULT OF RESPONDENT'S REFUSAL TO
NEGOTIATE A PROPOSAL MADE BY RESPONDENT ON SEPTEMBER 7, 1978 (ALJ EXH.
1). NOTICE OF HEARING ISSUED ON DECEMBER 28, 1978 (ALJ EXH. 2) PURSUANT
TO WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON MARCH 6,
1979, IN CHICAGO, ILLINOIS. RESPONDENT'S MOTION TO REOPEN HEARING OR IN
THE ALTERNATIVE TO INCLUDE CERTAIN PROFFERED DOCUMENTARY EVIDENCE WAS
DENIED BY ORDER DATED APRIL 9, 1979. AT THE CLOSE OF THE HEARING, APRIL
6, 1979, WAS FIXED AS THE DATE FOR THE MAILING OF BRIEFS AND EACH PARTY
HAS TIMELY FILED /2/ A BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON
THE BASIS OF THE ENTIRE RECORD, INCLUDING ANY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS:
FINDINGS AND CONCLUSIONS
THERE ARE THREE ISSUES. FIRST, WHETHER RESPONDENT HAD A DUTY TO
NEGOTIATE OR MERELY TO CONSULT; SECOND, WHETHER THIS PROCEEDING IS
BARRED BY THE PROVISIONS OF 19(D) OF THE ORDER; AND THIRD, WHETHER, IF
THERE WERE AN OBLIGATION TO NEGOTIATE, RESPONDENT'S REFUSAL TO BARGAIN
ON SEPTEMBER 11, 1978, WAS A VIOLATION OF SECTIONS 19(A)(1) AND (6),
INASMUCH AS RESPONDENT HAD PREVIOUSLY, ON JULY 21, 1977, REFUSED TO
BARGAIN ON A PROPOSAL, WHICH RESPONDENT ASSERTS IS THE SAME PROPOSAL IT
MADE ON SEPTEMBER 7, 1978, AND COMPLAINANT DID NOT FILE A CHARGE WITHIN
SIX MONTHS OF THE OCCURRENCE OF ITS INITIAL REFUSAL TO BARGAIN, AS
REQUIRED BY SECTION 203.2(2) OF THE REGULATIONS.
1. THE DUTY TO NEGOTIATE.
LOCAL 1395, WHICH REPRESENTS EMPLOYEES OF THE GREAT LAKES PROGRAM
SERVICE CENTER, IS ONE OF THE SIX LOCAL UNIONS CONSTITUTING THE NATIONAL
COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO. SINCE 1971, THE BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE OF THE SOCIAL SECURITY ADMINISTRATION AND THE
NATIONAL OFFICE OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS) HAVE
BEEN PARTIES TO A SERIES OF MASTER AGREEMENTS, THE MOST RECENT AGREEMENT
BEING EFFECTIVE MARCH 15, 1974 (RES. EXH. 3). THIS MASTER AGREEMENT
(RES. EXH. 3) IS THE SAME MASTER AGREEMENT AS WAS INVOLVED IN
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BRS1, NORTHEASTERN PROGRAM CENTER, A/SLMR NO.
1101(1978), AND IN SOCIAL SECURITY ADMINISTRATION, BUREAU OF RETIREMENT
AND SURVIVORS INSURANCE, A/SLMR NO. 1177(1978); RESPONDENT'S
CONTENTIONS, INTER ALIA, THAT ITS RESPONSIBILITY IS LIMITED UNDER THE
AGREEMENT (ARTICLE 2, SECTION (E)) TO CONSULTATION RATHER THAN
NEGOTIATION, ARE THE SAME CONTENTIONS AS URGED BY RESPONDENT IN THE
NORTHEASTERN PROGRAM SERVICE CENTER CASE, SUPRA, CONSIDERED AT LENGTH BY
JUDGE NAIMARK IN HIS DECISION, CASE NO. 30-7725(CA) (1978), AND AFFIRMED
BY THE ASSISTANT SECRETARY AS A/SLMR NO. 1101. THE CONTRACT PROVISIONS
ARE FULLY SET FORTH IN THE DECISION OF JUDGE NAIMARK AND NEED NOT BE
REPEATED. IN LIKE MANNER, THE DISCUSSION AND CONCLUSIONS OF JUDGE
NAIMARK, AFFIRMED BY THE ASSISTANT SECRETARY, NOT ONLY ARE FULLY
DISPOSITIVE OF THE SAME ISSUES HERE, BUT I COMPLETELY AGREE WITH HIS
CONCLUSIONS THAT "MANAGEMENT MAY NOT PROPERLY CONFINE ITS OBLIGATIONS TO
CONSULTATION WITH COMPLAINANT CONCERNING MATTERS AFFECTING THE PROGRAM
CENTER . . . " ACCORDINGLY, FOR THE REASONS FULLY SET FORTH BY JUDGE
NAIMARK IN THE NORTHEASTERN PROGRAM SERVICE CENTER CASE, SUPRA, ADOPTED
BY THE ASSISTANT SECRETARY, A/SLMR NO. 1101, I CONCLUDE THAT RESPONDENT
WAS REQUIRED TO BARGAIN WITH COMPLAINANT, NOT MERELY CONSULT AS
CONTENDED BY RESPONDENT. /3/ SEE, ALSO, SOCIAL SECURITY ADMINISTRATION,
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE, A/SLMR NO. 1177(1978).
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF RETIREMENT AND SURVIVORS INSURANCE, A/SLMR NO.
1022(1978); DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
SECURITY ADMINISTRATION, BRS 1, NORTHEASTERN PROGRAM SERVICE CENTER,
A/SLMR NO. 984(1978).
2. THIS PROCEEDING IS NOT BARRED BY SECTION 19(D) OF THE
ORDER
ON AUGUST 21, 1978, COMPLAINANT'S PRESIDENT, MR. DONALD JONES, FILED
A GRIEVANCE WHICH ASSERTED, IN PART, THAT RESPONDENT "HAS UTILIZED AN
INDIVIDUAL ASSESSMENT SYSTEM FOR TRAINEES TO MEASURE THE PERFORMANCE OF
TRAINEES SINCE ABOUT JULY 1977. THIS PROCEDURE (1PAS FOR TRAINEES) WAS
NOT DISCUSSED WITH LOCAL 1395 IN ACCORDANCE WITH PROVISIONS OF ARTICLES
2, 6, 24 AND OTHER APPLICABLE ARTICLES OF THE MASTER AGREEMENT OR
EXECUTIVE ORDER 11491, AS AMENDED." (EXHIBIT 1 TO RESPONDENT'S MOTION TO
DISMISS). BY LETTER DATED SEPTEMBER 20, 1978, RESPONDENT STATED, IN
PART, "I MUST POINT OUT TO YOU THAT THERE HAS BEEN NO IMPLEMENTATION OF
THE INDIVIDUAL ASSESSMENT SYSTEM FOR TRAINEES." (EXHIBIT 2 TO
RESPONDENT'S MOTION TO DISMISS).
WHILE IT IS OBVIOUS THAT THE GRIEVANCE RAISED AN ISSUE CONCERNING
NON-COMPLIANCE WITH THE EXECUTIVE ORDER, IT IS EQUALLY OBVIOUS THAT THE
GRIEVANCE CONCERNED ASSERTED ACTION BY RESPONDENT PRIOR TO SEPTEMBER 7,
1978, ON WHICH DATE RESPONDENT SUBMITTED ANOTHER DRAFT OF AN 1PAS FOR
TRAINEES PROPOSAL AS TO WHICH RESPONDENT REFUSED TO BARGAIN ON SEPTEMBER
11, 1978, WHICH IS THE SUBJECT OF THE PRESENT COMPLAINT. BECAUSE THE
GRIEVANCE OF AUGUST 21, 1978, DID NOT, AND COULD NOT, CONCERN AN EVENT
WHICH HAD NOT OCCURRED, COMPLAINANT DID NOT RAISE THE ISSUE UNDER ITS
GRIEVANCE PROCEDURE WHICH IT HAS RAISED UNDER THE COMPLAINT AND THIS
PROCEEDING IS NOT BARRED BY SECTION 19(D) OF THE ORDER. THE FACT THAT
RESPONDENT, BY ITS RESPONSE OF SEPTEMBER 20, 1978, HAS REFERRED TO THE
EVENTS OF SEPTEMBER 7 AND 11, 1978, DOES NOT ALTER THE ISSUE RAISED BY
THE GRIEVANCE SO AS TO INCLUDE AS A PART THEREOF THE EVENTS OF SEPTEMBER
1978. RESPONDENT'S MOTION TO DISMISS, RECEIVED AT THE HEARING AND
CARRIED WITH THE CASE, IS, THEREFORE DENIED.
3. RESPONDENT VIOLATED SECTIONS 19(A)(6) AND,
DERIVATIVELY, 19(A)(1) BY ITS REFUSAL TO BARGAIN ON
SEPTEMBER 11, 1978.
IT IS QUITE TRUE THAT IN JULY 1977, RESPONDENT SUBMITTED A PROPOSED
1PAS FOR TRAINEES AND THAT, ON JULY 21, 1977, RESPONDENT REFUSED
COMPLAINANT'S REQUEST FOR NEGOTIATIONS. IT IS ALSO QUITE CORRECT THAT
COMPLAINANT DID NOT FILE A CHARGE WITHIN SIX MONTHS OF RESPONDENT'S
REFUSAL TO BARGAIN ON JULY 21, 1977. HAD RESPONDENT IMPLEMENTED ITS
PROPOSAL THERE COULD BE NO FINDING OF AN UNFAIR LABOR PRACTICE AS TO
RESPONDENT'S JULY 21, 1977, REFUSAL TO BARGAIN; BUT RESPONDENT DID NOT
IMPLEMENT ITS 1977 PROPOSAL.
TO THE CONTRARY, ON SEPTEMBER 7, 1978, RESPONDENT SUBMITTED A NEW
VERSION OF ITS 1PAS FOR TRAINEES PROPOSAL AND ON SEPTEMBER 11, 1978,
RESPONDENT REFUSED COMPLAINANT'S REQUEST TO BARGAIN. ALTHOUGH THE
RECORD SHOWS THAT RESPONDENT'S 1978 1PAS FOR TRAINEES PROPOSAL WAS, IN
FACT, DIFFERENT FROM ITS 1977 PROPOSAL, EVEN IF IT HAD BEEN THE SAME
PROPOSAL, AS RESPONDENT HAD NOT IMPLEMENTED ITS EARLIER PROPOSAL, WHEN
RESPONDENT IN 1978 AGAIN SUBMITTED A PROPOSAL WHICH CONCERNED PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, IT WAS
REQUIRED BY SECTION 11(A) OF THE ORDER TO NEGOTIATE WITH COMPLAINANT AND
ITS REFUSAL TO DO SO, AT COMPLAINANT'S REQUEST, ON SEPTEMBER 11, 1978,
WAS IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER AND, DERIVATIVELY, OF
SECTION 19(A)(1) OF THE ORDER.
I AM FULLY AWARE THAT RESPONDENT OFFERED TO CONSULT, I.E., TO RECEIVE
INPUT FROM COMPLAINANT, AND THAT COMPLAINANT REFUSED TO CONSULT AND
INSISTED ON ITS RIGHT TO NEGOTIATE. IT IS TRUE THAT GOOD FAITH
BARGAINING IS NOT DETERMINED BY FORMAL TRAPPINGS OR EVEN BY HOW THE
PARTIES MAY HAVE CHARACTERIZED THEIR CONDUCT, UNITED STATES DEPARTMENT
OF THE TREASURY, INTERNAL REVENUE SERVICE, CHICAGO DISTRICT, A/SLMR NO.
711, 6 A/SLMR 492(1976); DEPARTMENT OF THE NAVY, NORFOLK NAVAL
SHIPYARD, PORTSMOUTH, VIRGINIA, A/SLMR NO. 1065(1978); BUT HERE,
RESPONDENT'S CONDUCT WAS INTENDED TO FORESTALL BARGAINING AND, IN FACT,
DID FORESTALL ALL EFFORTS OF COMPLAINANT TO SECURE BARGAINING. FOR
REASONS SET FORTH HEREINABOVE, RESPONDENT MISCONCEIVED ITS OBLIGATIONS
UNDER THE ORDER, WHICH IS TO NEGOTIATE NOT MERELY CONSULT, AND BECAUSE
ITS CONDUCT FORESTALLED NEGOTIATIONS REQUIRED BY THE ORDER AN
APPROPRIATE REMEDIAL ORDER WILL BE RECOMMENDED.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY ITS REFUSAL TO BARGAIN WITH
COMPLAINANT ON SEPTEMBER 11, 1978, WITH RESPECT TO A PROPOSAL FOR
INDIVIDUAL PERFORMANCE ASSESSMENT SYSTEM FOR TRAINEES MADE BY RESPONDENT
ON SEPTEMBER 7, 1978, I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING
ORDER.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTIONS 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT GREAT LAKES PROGRAM SERVICE CENTER, SOCIAL
SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
CHICAGO, ILLINOIS, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO NEGOTIATE WITH LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, CONCERNING INDIVIDUAL PERFORMANCE ASSESSMENT SYSTEM FOR
TRAINEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) WITHDRAW, IF IT HAS IMPLEMENTED, ANY INDIVIDUAL PERFORMANCE
ASSESSMENT SYSTEM FOR
TRAINEES.
(B) NOTIFY LOCAL 1395, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, AS THE
AUTHORIZED REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS),
THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, OF ANY PROPOSED INDIVIDUAL
PERFORMANCE ASSESSMENT
SYSTEM FOR TRAINEES, AND, UPON REQUEST, NEGOTIATE IN GOOD FAITH, TO
THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON ANY SUCH PROPOSAL.
(C) POST AT ITS FACILITIES AT THE GREAT LAKES PROGRAM SERVICE CENTER
COPIES OF THE ATTACHED
NOTICE, MARKED "APPENDIX", ON FORMS TO BE FURNISHED BY THE AUTHORITY.
UPON RECEIPT OF SUCH
FORM THEY SHALL BE SIGNED BY THE DIRECTOR OF RESPONDENT AND SHALL BE
POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS
AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
AUTHORITY, IN WRITING, WITHIN
20 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN
TO COMPLY THEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 21, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO BARGAIN WITH LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, WITH RESPECT TO ANY INDIVIDUAL
PERFORMANCE ASSESSMENT SYSTEM FOR TRAINEES.
WE WILL NOT INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED,
BY REFUSING TO NEGOTIATE WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS SO FAR AS MAY BE
APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER REFUSE TO CONSULT, CONFER,
OR NEGOTIATE WITH LOCAL 1395 AS REQUIRED BY EXECUTIVE ORDER 11491, OR IN
LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
WE WILL WITHDRAW ANY INDIVIDUAL PERFORMANCE ASSESSMENT SYSTEM FOR
TRAINEES WE HAVE IMPLEMENTED AND WE WILL NOTIFY LOCAL 1395, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AS THE AUTHORIZED
REPRESENTATIVE OF THE NATIONAL OFFICE, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER
LOCALS) OF ANY PROPOSED INDIVIDUAL PERFORMANCE ASSESSMENT SYSTEM FOR
TRAINEES, AND, UPON REQUEST, NEGOTIATE IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON ANY SUCH PROPOSAL.
ACTIVITY
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, CHICAGO REGIONAL OFFICE, FEDERAL LABOR
RELATIONS AUTHORITY, WHOSE ADDRESS IS SUITE 1201A, INSURANCE EXCHANGE
BUILDING, 175 W. JACKSON BOULEVARD, CHICAGO, ILLINOIS 60604.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ COMPLAINANT'S BRIEF WAS A THREE PAGE MAILGRAM. COMPLAINANT IS TO
BE COMMENDED FOR ITS SUCCINCT BUT COMPLETE BRIEF, WHICH CONSISTS OF A
STATEMENT OF THE ISSUES, A STATEMENT OF THE FACTS, AND ARGUMENT, WITH
CITATION OF AUTHORITIES RELIED UPON, IN THIS FORMAT.
/3/ BECAUSE THE DECISION IN A/SLMR NO. 1101 IS BOTH CONTROLLING AND
DISPOSITIVE OF THIS ISSUE IT IS UNNECESSARY TO CONSIDER FURTHER
RESPONDENT'S ARGUMENTS, ALL OF WHICH WERE URGED AND REJECTED IN THE
NORTHEASTERN PROGRAM SERVICE CENTER CASE. NEVERTHELESS, IT IS
APPROPRIATE TO NOTE THAT MR. DONALD JONES, PRESIDENT OF LOCAL 1395 AND,
ALSO, PRESIDENT OF THE NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT
CENTER LOCALS AND A SIGNATORY TO RESPONDENT EXHIBIT 3, TESTIFIED WITHOUT
CONTRADICTION, THAT:
"WHEN WE NEGOTIATED THE AGREEMENT WE UNDERSTAND CONSULT TO BE
INTERCHANGEABLE WITH
NEGOTIATE, MEET, AND CONFER." (TR. 57). MR. JONES FURTHER TESTIFIED
THAT MR. JOHN GRINER,
THEN NATIONAL PRESIDENT OF AFGE, IN A LETTER TO MR. HUGH MCKENNA,
THEN BUREAU DIRECTOR, HAD
ADVISED THE BUREAU THAT THE AUTHORITY REQUESTED AND GRANTED TO THE
NATIONAL OFFICE, RATHER
THAN THE COUNCIL, AS THE BARGAINING AGENT FOR THE COUNCIL, HAD BEEN
REDELEGATED TO THE
COUNCIL. (TR. 60). ALTHOUGH THE LETTER REFERRED TO BY MR. JONES
WAS NOT OFFERED IN EVIDENCE,
RESPONDENT HAS NOT DISPUTED IN ANY MANNER MR. JONES' TESTIMONY.