Department of Health and Human Services, Social Security Administration (Respondent) and American Federation of Government Employees, Local 1346, AFL-CIO (Charging Party) (Authority decision, June 25, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. 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

A Social Security local sought bargaining under a reopener in its existing agreement after a nationwide unit consolidation. Management refused to bargain at the local level. On a stipulated record, the Authority held that the bargaining obligation had moved to the new nationwide unit, while existing local contract terms could remain in place during transition. It dismissed the unfair labor practice complaint.

Decision snapshot

• Authority: 5 U.S.C. § 7103(a)(12), 5 U.S.C. § 7116(a)(1), 5 U.S.C. § 7116(a)(5).
• Outcome: Complaint dismissed; no postconsolidation local reopener duty.
• Key point: A nationwide unit certification shifted the duty to bargain to the new level of recognition.

Full text (FLRA public release)

[ 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.