AFGE Local 1923 and Social Security Administration (Authority decision, November 25, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 1923 agreed in a settlement with the Social Security Administration not to grieve an employee's disciplinary action. It later filed a grievance and sought arbitration over that action. The Authority adopted the judge's finding that this repudiated the settlement and violated the union's duty to bargain in good faith. It ordered the union to honor the agreement, withdraw the grievance or arbitration request, and post a notice. The Authority also adopted dismissal of a separate alleged unfair labor practice violation.

Decision snapshot

• Authority: Union unfair labor practice provisions of 5 U.S.C. § 7116(b)(5) and (1).
• Outcome: Judge's split merits decision affirmed and remedied; separate allegation dismissed.
• Key point: The union's later grievance could not undo its agreement to settle that disciplinary matter.

Full text (FLRA public release)

[ v20 p749 ]

20:0749(88)CO

The decision of the Authority follows:

20 FLRA No. 88

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Respondent

and

SOCIAL SECURITY ADMINISTRATION
DIVISION OF LABOR RELATIONS
Charging Party

Case No. 3-CO-40025

DECISION AND ORDER

The Administrative Law Judge issued his Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of that part of the complaint. Thereafter, the Respondent 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.

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the American Federation of Government Employees, Local 1923, AFL-CIO, shall:

1. Cease and desist from:

(a) repudiating the November 9, 1983 Settlement Agreement entered into with the Social Security Administration wherein it agreed not to file a grievance concerning the adverse action taken against Ms. Gwendolyn T. Perrin.

(b) In any like or related manner failing to bargain in good faith with the Social Security Administration.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Statute:

(a) Honor the Settlement Agreement entered into with the Social Security Administration on November 9, 1983, wherein it agreed not to file a grievance concerning the adverse action taken against Ms. Gwendolyn T. Perrin.

(b) Withdraw any pending grievance and/or pending request for arbitration predicated on the adverse action taken against Ms. Gwendolyn T. Perrin on November 9, 1983.

(c) Post at its business offices and its normal meeting places, including all places where notices to members and other employees of the Social Security Administration are customarily posted, 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 President of Local 1923, American Federation of Government Employees, AFL-CIO, or a designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to members and other employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Submit appropriate signed copies of such Notices to the Administrator of the Social Security Administration, Baltimore, Maryland, for posting in conspicuous places where the unit employees are located, where they shall be maintained for a period of 60 consecutive days from the date of posting.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, 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.

IT IS FURTHER ORDERED that the portion of the complaint in Case No. 3-CO-40025 found not to have violated the Statute be, and it hereby is, dismissed.

Issued, Washington, D.C.,November 25, 1985

(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

NOTICE TO ALL MEMBERS AND OTHER 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 MEMBERS AND OTHER EMPLOYEES THAT:

WE WILL NOT repudiate the November 9, 1983 Settlement Agreement entered into with the Social Security Administration wherein we agreed not to file a grievance concerning the adverse action taken against Ms. Gwendolyn T. Perrin.

WE WILL NOT in any like or related manner fail to bargain in good faith with the Social Security Administration.

WE WILL honor the Settlement Agreement entered into with the Social Security Administration on November 9, 1983, wherein we agreed not to file a grievance concerning the adverse action taken against Ms. Gwendolyn T. Perrin.

WE WILL withdraw any pending grievance and/or pending request for arbitration predicated on the adverse action taken against Ms. Gwendolyn T. Perrin on November 9, 1983.
---
(Labor Organization)

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 its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., Room. 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.

-------------------- ALJ$ DECISION FOLLOWS --------------------

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Respondent

and

SOCIAL SECURITY ADMINISTRATION
DIVISION OF LABOR RELATIONS Charging
Party/Agent

Gregory K. McGillivary, Esquire; Bruce D. Rosentein, Esquire For the General Counsel

Carl J. Clayton, Esquire For the Charging Party Alvin S. Levy, Esquire For the Respondent

Before: BURTON S. STERNBURG, Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq. and the Rules and Regulations issued thereunder.

Pursuant to a charge filed on May 11, 1984, by the Social Security Administration, Division of Labor Relations, (hereinafter called the Charging Party or SSA), a Complaint and Notice of Hearing was issued on July 30, 1984, by the Acting Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges, in substance, that the American Federation of Government Employees, Local 1923, AFL-CIO (hereinafter called the AFGE or Respondent), violated Sections 7116(b)(5) and (1) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by repudiating a settlement agreement signed by a duly authorized representative.

A hearing was held in the captioned matter on September 25, 1984, in Baltimore, Maryland. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. All parties orally summed up their respective positions at the hearing and waived the submission of post-hearing briefs. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

The American Federation of Government Employees, AFL-CIO is the exclusive representative in a national consolidated unit for a majority of the employees working for the Social Security Administration. Local 1923, AFGE is an agent of the American Federation of Government Employees, AFL-CIO, and acts as its representative at the Baltimore, Maryland headquarters of the Social Security Administration. Mr. Robert N. Niemeyer is a steward for Local 1923, AFGE.

On September 30, 1983, Ms. Gwendolyn T. Perrin was served with a notice of proposed removal from her position as a GS-2010-9 Inventory Management Specialist. The notice of removal from Mr. John Spencer, Chief Supply Management Branch, charged Ms. Perrin with (a) failing to account for 28 items of Government property valued at $26 which she purchased at the Self Service Store, and (b) taking Without authorization and for non-official use, 28 items of Government property from the Self Service Store valued at $26. The removal action was to take place 30 days from Ms. Perrin's receipt of the notice of proposed removal.

The notice of proposed removal further informed Ms. Perrin, among other things, that she had the right to respond to the proposed removal action within 20 days. Any response was to be made by Ms. Perrim or her duly authorized representative to Mr. Donald E. Devine, Director Division of Property Management. According to the record, Mr. Devine's decision on the matter was to be the final one.

On or about October 19, 1983, Ms. Perrin and her representative, Local 1923, AFGE steward Robert Niemeyer met, with Mr. Devine for purposes of presenting a written rebuttal to the charges contained in the proposed removal action. During the meeting Mr. Niemeyer claimed Ms. Perrin was innocent of the charges and that it was his intent to fight the case all the way. In support of his position he orally set forth what was contained in the written rebuttal. Inasmuch as the written rebuttal was a lengthy document, Mr. Devine informed Ms. Niemeyer that it would take him, Mr. Devine, considerable time to review the written rebuttal and that he would get in touch with him at a subsequent date.

On approximately November 1, 1983, after interviewing some seven other employees who had either been mentioned in Ms. Perrin's written rebuttal or had been mentioned during the interviews of the employees named in the written rebuttal, Mr. Devine again met with Mr. Niemeyer. Mr. Devine informed Mr. Niemeyer that after reviewing the matter he was of the opinion that a removal action was not warranted. In place of the removal action, Mr. Devine stated that he would be satisfied with giving Mr. Perrin a 14 day suspension provided that she would agree not to further grieve the matter. When Mr. Niemeyer objected to the 14 day suspension as being too severe, Mr. Devine agreed to consider the matter further and get back to Mr. Niemeyer. /1/

Approximately two days later Mr. Devine telephoned Mr. Niemeyer and informed him that he had reconsidered the matter and decided to reduce the penalty to a one day suspension provided that Mr. Perrin "would not further grieve the action." Mr. Niemeyer replied that he would have to discuss the matter with Mr. Perrin. Shortly thereafter Mr. Niemeyer telephoned Mr. Devine and advised him that Mr. Perrin wished to talk to Mr. Devine.

On November 5, 1983, Mr. Perrin met with Mr. Devine and told him that she was of the opinion that the penalty was too severe. She further informed him that she wanted to keep her record clean and hoped that "it would not be blemished by the one-day suspension." Mr. Devine stuck to his guns and told Ms. Perrin that in his opinion a penalty was warranted.

ON November 9, 1983, Mr. Devine issued a one day suspension to Ms. Perrin. On the same day Mr. Devine and Mr. Niemeyer signed a document entitled Settlement Agreement. The Settlement Agreement reads as follows:

In accordance with the agreement reached between Ms. Gwen Perrin, her Union representative, Mr. Robert Niemeyer and Mr. Donald Devine, the following is agreed to:

1. The Pending Removal action will be reduced to a 1 calendar
   day suspension, and

2. Ms. Perrin hereby waives any and all rights to grieve the
   action further or take the action before an arbitrator.

Thereafter, by a "standard Grievance Form" dated December 1, 1983, Local 1923, AFGE by its agent, Alvin Levy, filed a grievance over Mr. Perrin's one day suspension.

Subsequently, by a memorandum dated December 7, 1983, Local 1923, AFGE, by its agent, Arnold Spivak, notified the Social Security Administration that it was invoking arbitration with respect to the grievance predicated on Ms. Perrin's one day suspension.

Discussion and Conclusions

There is no substantial disagreement with the facts as reported above. Thus the Union admits that it signed the settlement agreement wherein it waived its right to file any further grievances over the matter of the adverse personnel action involving Ms. Perrin and then immediately thereafter proceeded to file a grievance and request arbitration based thereon.

In defense of its action, the Union takes the position that it was entitled to repudiate the agreement since it was based on economic coercion. According to the Union, the economic coercion was the alternative of accepting Mr. Devine's offer or having Ms. Perrin, a single parent with three children to support, without compensation for the extended period of time it would take to process a grievance through arbitration. Since Ms. Perrin could not afford to be without funds for such a considerable period of time the Union was forced to accept the Agency's offer of a one day suspension and waive any further grievance proceedings on the matter.

While I am sympathetic to the Union's position with respect to the financial problems Ms. Perrin could expect to encounter if she was subjected to an extended period of unemployment, I am constrained to find that such anticipated financial problems are not a sufficient basis for excusing to the Union's action in completely repudiating the settlement agreement. The problem faced by the Union on Ms. Perrin's account, i.e, to settle or fight, is no different from that encountered by other plaintiffs in the legal arena who believe that they have been wronged but opt to settle in lieu of costly and time consuming litigation. I have not been shown, nor has my research disclosed, any case precedent to support the Union's position.

Accordingly, I find that the Union's action in filing a grievance and seeking arbitration with respect to Ms. Perrin's one day suspension constituted a complete repudiation of the settlement agreement in violation of Section 7116(b)(5) of the Statute. Cf. Great Lakes Program Service Center, social security Administration, Department of Health and Human Services, Chicago, Illinois, 9 FLRA No.7.58.

Although neither party has addressed the matter, I cannot find that the Union's refusal to bargain herein also constituted a derivative 7116(b) (1) violation of the Statute. This is particularly true herein where the only employee affected by the Union's action, i.e., Ms. Perrin, benefited from such action. While not controlling, it is noted that the NLRB has reached a similar conclusion in the private sector. National Maritime Union of America, 78 NLRB 971 at 985; enf. 175 F.2d 686; cert. denied 338 U.S. 954. Accordingly, it is hereby recommended that the 7116(b)(1) allegation be dismissed in its entirety.

In view of the above finding, it is hereby recommended that the Federal Labor Relations Authority issue the following Order designed to effectuate the purposes and policies of the Statute.

ORDER

Pursuant to Section 242.3.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the American Federation of Government Employees, Local 1923, AFL-CIO, shall:

1. Cease and desist from: (a) Repudiating the November 9, 1983
   Settlement Agreement entered into with the Social Security Administration wherein it agreed not to file any grievances concerning the adverse action taken against Ms. Gwendolyn T. Perrin. (b) In any like to related manner failing to bargain in good faith with the Social security Administration.

2. Take the following affirmative action in order to effectuate
   the purposes and policies of the Stature. (a) Honor the settlement Agreement entered into with the Social Security Administration of November 9, 1983, wherein it agreed not to file any grievances concerning the adverse action taken against Ms. Gwendolyn T. Perrin (b) Withdraw all pending grievances and/or pending requests for arbitration predicated on the adverse action taken against Ms. Gwendolyn T. Perrin on November 9, 1983. (c) Post at the Social Security Administration Headquarters in Baltimore, Maryland, 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 President of Local 1923, American Federation Government Employees, AFL-CIO, 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 President shall take reasonable steps to insure that said 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, Region III, 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. (s)---

BURTON S. STERNBURG
Administrative Law Judge

Dated: November 6,1984
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

CHAPTER 71 OF TITLE 5 OF THE

UNITED STATES CODE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT repudiate the November 9, 1983, Settlement Agreement entered into with the Social Security Administration wherein we agreed not to file any grievances concerning the adverse action taken against Ms. Gwendolyn T. Perrin.

WE WILL NOT in any like to related manner fail to bargain in good faith with the Social Security Administration.

WE WILL honor the Settlement Agreement entered into with the Social Security Administration on November 9, 1983, wherein we agreed not to file any grievances concerning the adverse action taken against Ms. Gwendolyn T. Perrin.

WE WILL withdraw all pending grievances and/or pending requests for arbitration predicated on the adverse action taken against Ms. Gwendolyn T. Perrin on November 9, 1983.
---
(Agency or 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 of the Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, NW., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number number is: (202) 653-8456.

--------------- FOOTNOTES$ ---------------

/1/ Mr. Niemeyer admits having several conversations with Mr. Devine but denies that Mr. Devine ever proposed a fourteen day suspension as an alternative to the proposed removal action. Having observed the witnesses and their demeanor, I have credited Mr. Devine.