[ v06 p202 ]
06:0202(33)CA
The decision of the Authority follows:
6 FLRA No. 33 DEPARTMENT OF HEALTH AND HUMAN SERVICES, /1/ SOCIAL SECURITY ADMINISTRATION Respondent and LOCAL 1346, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 5-CA-330 DECISION AND ORDER THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2429.1(A)). UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' STIPULATION OF FACTS; ACCOMPANYING EXHIBITS; AND BRIEFS SUBMITTED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL COUNSEL, THE AUTHORITY FINDS: ON JULY 21, 1978, THE CHARGING PARTY AND THE RESPONDENT'S MILWAUKEE NORTH DISTRICT OFFICE (THE ACTIVITY) ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT OF 3 YEARS' DURATION WHICH CONTAINED A PROVISION ALLOWING EITHER PARTY TO REOPEN THE AGREEMENT DURING THE 60-90 DAY PERIOD PRIOR TO THE 18 MONTH MID-POINT THEREOF FOR THE PURPOSE OF RENEGOTIATING UP TO ONE-THIRD OF THE ARTICLES IN THAT AGREEMENT. ON AUGUST 30, 1979, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE) WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A CONSOLIDATED NATIONWIDE UNIT CONSISTING OF 211 PREVIOUSLY SEPARATE UNITS WITHIN THE SOCIAL SECURITY ADMINISTRATION, INCLUDING THE BARGAINING UNIT (REPRESENTED BY THE CHARGING PARTY) AT THE ACTIVITY COVERED BY THE AGREEMENT REFERRED TO ABOVE. THEREAFTER, WHILE NEGOTIATIONS AT THE NATIONAL LEVEL WERE IN PROGRESS, THE CHARGING PARTY REQUESTED BARGAINING WITH THE ACTIVITY PURSUANT TO THE TERMS OF THE REOPENER CONTAINED IN THE LOCAL AGREEMENT. THE ACTIVITY REFUSED, CITING THE NATIONWIDE CONSOLIDATION. SUBSEQUENT REQUESTS BY THE CHARGING PARTY FOR LOCAL BARGAINING UNDER THE REOPENER WERE ALSO REJECTED BY THE ACTIVITY CONSISTENT WITH HIGHER AGENCY INSTRUCTIONS THAT THERE WOULD BE NO BARGAINING BELOW THE NATIONAL LEVEL. THE CHARGING PARTY AND GENERAL COUNSEL CONTEND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY FAILING AND REFUSING TO ENTER INTO NEGOTIATIONS AT THE LOCAL LEVEL UNDER THE TERMS OF THE REOPENER. THEY RELY UPON SECTION 2422.2(H)(8) OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2422.2(H)(8)) WHICH REQUIRES THAT TERMS AND CONDITIONS OF EXISTING AGREEMENTS WITH RESPECT TO UNITS THAT HAVE BECOME CONSOLIDATED "SHALL REMAIN IN EFFECT," UNLESS OTHERWISE AGREED BY THE PARTIES, "UNTIL A NEW AGREEMENT COVERING THE CONSOLIDATED UNIT BECOMES EFFECTIVE." THEY ARGUE THAT THE REOPENER CLAUSE EMBODIED IN THE LOCAL AGREEMENT CONSTITUTES A TERM AND CONDITION THAT, ABSENT AGREEMENT TO THE CONTRARY, MANAGEMENT WAS REQUIRED TO HONOR. THE RESPONDENT, ON THE OTHER HAND, CONTENDS THAT THE DUTY TO BARGAIN FOLLOWING AFGE'S CERTIFICATION AS EXCLUSIVE REPRESENTATIVE FOR THE NATIONWIDE CONSOLIDATED UNIT EXISTS AT THE NEW LEVEL OF RECOGNITION AND NO LONGER AT THE LOCAL LEVEL, AND THAT WHILE THE TERMS AND CONDITIONS OF LOCAL AGREEMENTS CONTINUE (UNLESS OTHERWISE MUTUALLY AGREED) UNTIL SUPERSEDED BY AN AGREEMENT NEGOTIATED BY THE PARTIES FOR THE CONSOLIDATED UNIT, THERE IS NO OBLIGATION ON LOCAL MANAGEMENT TO NEGOTIATE A MODIFIED LOCAL AGREEMENT. THUS, THE NARROW QUESTION PRESENTED HEREIN IS WHETHER, FOLLOWING THE CERTIFICATION OF AFGE FOR A NATIONWIDE CONSOLIDATED UNIT, THERE REMAINED A DUTY TO BARGAIN NEW CONDITIONS OF EMPLOYMENT AT THE LOCAL LEVEL PURSUANT TO THE REOPENER CLAUSE CONTAINED IN THE LOCAL AGREEMENT. IN AGREEMENT WITH THE RESPONDENT, THE AUTHORITY CONCLUDES THAT THIS QUESTION MUST BE ANSWERED IN THE NEGATIVE. WITH REGARD TO THE DUTY TO BARGAIN, SECTION 7103(A)(12) OF THE STATUTE 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. . . . FOLLOWING THE ISSUANCE OF AFGE'S CERTIFICATION FOR THE CONSOLIDATED UNIT, THE APPROPRIATE UNIT WAS ESTABLISHED AT THE NATIONAL LEVEL. IT IS CLEAR, THEREFORE, THAT THE MUTUAL OBLIGATION TO BARGAIN AS ARTICULATED IN THE STATUTE EXISTS ONLY AT THAT LEVEL OF EXCLUSIVE RECOGNITION WITH RESPECT TO CONDITIONS OF EMPLOYMENT WHICH AFFECT ANY EMPLOYEES WITHIN THE UNIT; A CONTRARY RESULT WOULD RENDER CONSOLIDATION MEANINGLESS. IN OTHER WORDS, ONCE A LABOR ORGANIZATION IS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A CONSOLIDATED UNIT, AS HERE, A NEW BARGAINING OBLIGATION IS CREATED IN LIEU OF SUCH OBLIGATIONS WHICH PREVIOUSLY EXISTED REGARDING SMALLER UNITS NOW INCLUDED IN THE CONSOLIDATED UNIT. /2/ THE GENERAL COUNSEL'S BRIEF ACKNOWLEDGES THESE PRINCIPLES AND, INDEED, THE RESPONDENT AND AFGE ENGAGED IN NEGOTIATIONS WITH REGARD TO THE CONSOLIDATED UNIT FOLLOWING AFGE'S CERTIFICATION AS THE EXCLUSIVE REPRESENTATIVE OF THAT UNIT. NEVERTHELESS, THE GENERAL COUNSEL AND THE CHARGING PARTY CONTEND THAT REOPENER NEGOTIATIONS ARE MANDATED BY SECTION 2422.2(H)(8) OF THE AUTHORITY'S RULES AND REGULATIONS. HOWEVER, THAT SECTION IS INTENDED TO PROVIDE A METHOD OF STABILIZING THE PARTIES' RELATIONSHIP DURING THE PERIOD BETWEEN THE ISSUANCE OF THE CERTIFICATION ON CONSOLIDATION OF UNITS AND THE NEGOTIATION OF AN AGREEMENT COVERING THE NEWLY CONSOLIDATED UNIT; THUS, IT PROVIDES THAT, DURING SUCH A HIATUS PERIOD, TERMS AND CONDITIONS OF EXISTING AGREEMENTS MAY NOT BE CHANGED. A REQUIREMENT THAT SUBSTANTIVE BARGAINING PURSUANT TO A REOPENER MUST TAKE PLACE WITH RESPECT TO A PORTION OF A NEWLY CONSOLIDATED UNIT WOULD BE ANTITHETICAL TO THE GOAL OF STABILITY AND TO THE PURPOSE OF CONSOLIDATION. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE RESPONDENT'S REFUSAL TO BARGAIN UNDER THE CIRCUMSTANCES OF THIS CASE DID NOT CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. ORDER IT IS ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-330 BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., JUNE 25, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ THE AUTHORITY TAKES ADMINISTRATIVE NOTICE THAT AS A CONSEQUENCE OF THE ESTABLISHMENT OF THE DEPARTMENT OF EDUCATION, THE REMAINING PORTION OF THE OLD DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (THE NAMED RESPONDENT HEREIN) WAS REDESIGNATED AS THE DEPARTMENT OF HEALTH AND HUMAN SERVICES. /2/ THIS IS NOT TO SAY THAT THERE EXISTS ANY IMPEDIMENT TO THE PARTIES AT THE LEVEL OF EXCLUSIVE RECOGNITION AGREEING TO AUTHORIZE SUPPLEMENTAL NEGOTIATIONS AT A SUB-LEVEL. SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 695 AND DEPARTMENT OF THE TREASURY, U.S. MINT, DENVER, COLORADO, 3 FLRA NO. 7(1980), AT P. 5 OF THE DECISION.