Social Security Administration, Baltimore, Maryland and Offices of Hearings and Appeals, Kansas City and St. Louis, Missouri (Respondents) and IFPTE Association of Administrative Law Judges, Region VII (Charging Party/Union) (Authority decision, March 7, 2005)

Read the official release (flra.gov)

FLRA remand decision. The Authority orders relief for information request violations and remands the office security bargaining issue for further proceedings. This decision does not finally resolve all unfair labor practice claims, so this banner does not present a judicial-review period under 5 U.S.C. § 7123(a) as running from this order.

Plain-English summary

The union representing Social Security Administration administrative law judges sought security information and bargaining before a St. Louis hearing office moved. An administrative law judge found that the agency unlawfully withheld requested security surveys but rejected several bargaining claims. The Authority added a separate violation for the agency's failure to answer the information requests, and ordered a nationwide notice because the agency's response reflected a national position. It upheld the judge's ruling on office furnishings and other matters covered by a national agreement. It remanded the office security bargaining question because the contract and conflicting testimony did not establish whether local bargaining remained available.

Decision snapshot

• Authority: 5 U.S.C. §§ 7114(b)(4), 7116(a)(1), 7116(a)(5), 7116(a)(8), and 7118.
• Outcome: Information request violation added and nationwide posting ordered; office security bargaining claim remanded.
• Key point: An agency must answer a union's information request even if it has no responsive information.

Full text (FLRA public release)

[ v60
p674 ]

60 FLRA No. 132

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

KANSAS CITY, MISSOURI

AND

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

ST. LOUIS, MISSOURI

(Respondents)

and

INTERNATIONAL FEDERATION

OF PROFESSIONAL AND

TECHNICAL ENGINEERS

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, REGION VII

(Charging Party/Union)

DE-CA-02-0657

DE-CA-02-0658

_____

DECISION AND ORDER

March 7, 2005

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel and the Union. The Respondents filed oppositions to the General Counsel's and the Union's exceptions.

For the following reasons, we grant the General Counsel's exceptions in part, deny them in part, and remand in part to the Chief Administrative Law Judge for further proceedings consistent with this decision. [n1]

II. Background and Judge's Decision

A. Background

The separate complaints in this case grew out of bargaining related to the relocation of the St. Louis office of the Respondents' Office of Hearings and Appeals (OHA). The facts related to each complaint will be set forth independently to facilitate the reader's understanding of the issues in the case.

1. Case No. DE-CA-02-0658

The Union in this case represents administrative law judges (ALJs) in the Respondents' OHA. The amended complaint in DE-CA-02-0658 alleges that the Respondents, at the national level, the regional level, and the local level, violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by constructing office space in preparation for the relocation of the St. Louis office of the OHA before completing bargaining with the Union.

On August 8, 2001, the regional level Respondent notified the Union that it was planning to relocate the OHA office and attached a proposed floor plan for the new site. The Union requested impact and implementation bargaining and proposed various "topics" for bargaining. General Counsel's Exhibits (G.C. Ex.) 3 at 1, Union Letter of August 10, 2004. Such topics included, but were not limited to, ALJ office size, the number and size of hearing rooms, parking availability for ALJs and the cost thereof, security measures for the new location, including the placement of metal detectors in the hearing office space, and facilities and equipment in ALJ offices and common use areas. Id. The regional level Respondent replied on August 24, 2001, noting that issues related to ALJ office space, the number and size of hearing rooms, and facilities were being bargained at the national level. See G.C. Ex. 4 at 1.

Before bargaining on the relocation began, on August 31, 2001, the parties at the national level agreed to a collective bargaining agreement, with the exception of the article on Facilities and Services, over which they proposed to continue bargaining. [n2]

On September 7, 2001, the Union submitted several proposals, including installation of a magnetometer, an x-ray machine, and use of a hand-held security wand, locks on the ALJs' office doors and various other doors in the office, and measures for rest room safety. G.C. Ex. 5. See also Judge's Decision at 4. The Union also proposed free inside parking spaces for the ALJs, modifications [ v60 p675 ] to the floor plan to ensure that all the ALJs were on the same side of the building, and an allowance for new furniture. Id.

At the initial bargaining session concerning the move to the new office location, on September 10, 2001, the Respondent at the regional level informed the Union that the regional and local levels did not have authority to bargain on matters related to security and refused to discuss the subject. The regional and local level Respondents also informed the Union that they were not authorized to bargain on parking. The parties did discuss the Union's proposal regarding office furnishings. On September 28, 2001, the regional level Respondent reiterated to the Union that it had no authority to bargain at the local or regional level on office security, parking or office furnishings because those were matters that must be bargained at the national level. G.C. Ex. 6. The Chief Negotiator, who was from the regional office Respondent, submitted the proposed floor plan as the final bargaining proposal, as well as a proposed Memorandum of Understanding which included, among other things, proposals relating to locks on the entrance doors to the office suite and on the hearing room doors. Id. The Respondents maintained that the "Union's demand to bargain on [security] properly belongs at the national level[,] otherwise referred to as the level of exclusive recognition for the [Union]." Judge's Decision at 5 (quoting regional level Respondent's September 28 letter to the Union). See G.C. Ex. 6.

In response, the Union indicated its willingness to go to mediation on office security, parking, and office furnishings. The parties, including local and regional officials of the Respondents, participated in mediation sessions on December 3 and 4, 2001. Among other things, the parties discussed matters related to the mechanics of moving from the current work location to the new location and agreed to certain arrangements. See G.C. Ex. 15. The parties did not, however, formalize their agreement and they did not address office security at the new location. As to parking, the Union's "initial demand" was for free parking spaces, but, in December 2001, the Union subsequently "orally proposed" that the Respondents "bargain on seeking allocated parking slots in the building lease for which each [ALJ] would pay." Judge's Decision at 9-10.

An official of the regional level Respondent, noting that: (1) the size of ALJ offices, the size of hearing rooms, and parking were matters that were being negotiated at the national level as part of the Facilities and Services article; and (2) office security was covered by Article 23 of the parties' collective bargaining agreement, subsequently submitted as its final offer the unsigned Memorandum of Understanding (MOU) concerning the mechanics of the move. See G.C. Ex. 15. Specifically, the regional level Respondent stated that the Agency had "no obligation to bargain further on security since it was fully discussed and consciously explored during national level bargaining and contained within the agreement." Judge's Decision at 7 (quoting Respondents' January 25 letter to the Union). See G.C. Ex. 15. The regional level Respondent also stated that "five major issues" separated the parties: the size of ALJ offices and of hearing rooms, parking, security, and the general floor plan layout. See id. at 6.

The Union requested clarification from the Respondents of the date on which construction would begin at the new location and of the expected date of the move. At the beginning of July, 2002, the regional level Respondent informed the Union that construction had begun on June 27 and that occupancy at the new location would be no later than September 30. G.C. Ex. 22. On August 9, 2002, the parties signed the MOU pertaining to the mechanics of the move which had been discussed during mediation the previous December. At the insistence of the Union, the MOU was entitled "Memorandum of Understanding (Concerning only matters not currently [in] dispute before FLRA and FSIP)[.]" Judge's Decision at 9. That same date, the Union filed the charge in the instant case.

The local level Respondent implemented the move to the new location toward the end of September, 2002, before bargaining had been completed with the Union over the move. In October 2002, the Federal Service Impasses Panel (FSIP or Panel) issued its order resolving the national level impasse over the Facilities and Services article, including provisions regarding allocation of parking spaces, as well as the provision of parking spaces free of cost, and office space and furnishings, matters which had initially been at issue between the parties in connection with the move. In particular, as noted by the Judge, the Panel's Decision and Order prescribed the terms governing the allocation of free parking spaces to the ALJs. See Judge's Decision at 10-12.

The amended complaint in DE-CA-02-0658 alleged that the Respondents violated § 7116(a)(1) and (5) of the Statute by implementing the move of the St. Louis office before completing bargaining as required by the Statute.

2. DE-CA-02-0657

On August 28 and 31, 2001, the Union requested from the Respondents, pursuant to § 7114(b)(4) of the Statute, information regarding security measures at [ v60 p676 ] other regional components of the national level Respondent. The regional level Respondent replied to these requests on September 6 and 7, 2001. See Respondents' Exhibits (R. Ex.) 8 and 9. The Union renewed its information request on November 6, 2001, and, on November 21, 2001, requested from local and regional officials of the Respondents, in addition, any security surveys or crime assessments that had been prepared by the General Services Administration, or others, relating to the new office location. G.C. Exs. 8 and 13. The Union indicated that it needed the information for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. Specifically, the Union noted that the security surveys and crime assessments "obviously relate to the safety and security of bargaining unit members and whether appropriate arrangements are needed to address these issues." G.C. Ex. 13. A regional official of the Respondents replied, on November 28, stating that the Union had not established a particularized need for the information and that there were no security surveys or crime assessments for the new location. G.C. Ex. 14.

During December, 2001, a representative of the Union had conversations with an employee of the Federal Protective Service (FPS) who was then preparing a security survey and crime assessment for the new location and who indicated that it would be completed at some time in January, 2002. The FPS employee provided the Union representative information as to security measures that he would recommend for that location. The completed survey and assessment was provided to the Respondents in late January.

At the beginning of February, the Union renewed its request at the regional level for the security survey and crime assessment, as well as for the information it had requested on August 28 and 31, 2001. See G.C. Exs. 16 and 17. The regional level Respondent replied that it had provided the information requested in August, see R. Ex. 8 and 9, but made no response to the request for the survey and assessment. In the words of the Judge, the February request was met with "silence." Judge's Decision at 20. On August 2, 2002, the Union reminded a regional official of the Respondents of its request for that information and that official indicated that the failure to provide the information was an oversight. The regional level Respondent made "no further response" and failed to provide the information. Id. On August 9, 2002, the Union filed the charge giving rise to the instant complaint, DE-CA-02-0657, alleging that the Respondents had violated § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's requests for the security surveys and crime assessments and § 7116(a)(1), (5), and (8) by failing to provide the requested information.

B. Judge's Decision

1. DE-CA-02-0658 [n3]

The Judge found that the matter of "entry security was an issue in national negotiations," where the Union submitted proposals concerning magnetometers, wands, x-ray machines and the treatment of OHA offices as class 4, instead of class 2, for security purposes. The Judge quoted testimony by a witness for the Respondents, who had participated in those negotiations, to the effect that the Respondents wanted to negotiate security at the national level because they "wanted a uniform policy as to how security was implemented in [the] various hearing offices[.]" Judge's Decision at 12 (quoting Transcript (Tr.) at 362). The witness also testified, as quoted by the Judge, that the Respondents "never delegated that authority to negotiate those topics to the local level." Id. (quoting Tr. at 363).

According to the Judge, "[e]ntry security, i.e., magnetometers, wands, x-ray machines[,] etc., was [a Union] demand at [these] national [level] negotiations." Id. The Judge noted that, under Justice Department's policy concerning Vulnerability Assessment of Federal Buildings, issued on June 28, 1995, most hearing offices, such as that involved in this case, are classified as class 2. In this regard, the Judge cited testimony establishing that the Respondents have "an articulated policy that [they do] not install magnetometers in level one and two offices." Id. (quoting Tr. at 402). The Judge found, however, that "there are some level two field offices and hearing offices that have had, and still have, magnetometers." Id. In addition, according to the Judge, although magnetometers were withdrawn from bargaining by the Union, the subject was supplemented by Section E of Article 23 of the parties' collective bargaining agreement, which provided that the Respondents would bargain over impact and implementation under Article 2 of the agreement. Judge's Decision at 13 (citing Tr. at 439-40). The Judge also found that the parties agreed on Article 23, in particular, Section 2.D. and Section 4, as a substitute for those proposals. Accordingly, the Judge concluded that "all matters of entry security are subject to, and covered by, Article 23 of the National Agreement." Id. at 29. [ v60 p677 ]

Addressing matters pertaining to private office furnishings, free parking, and ALJ office and hearing office space, the Judge found that "[a]ll of these issues applied nationwide, were negotiated at the national level and, when the parties reached an impasse, were resolved by the Decision and Order" of the Panel. Id. at 29. Because these matters are covered by the Facilities and Services article, "were negotiated at the national level, and, ultimately, were resolved by [the Panel]," the Judge concluded that the "Respondent[s] had no obligation to bargain on any of these issues with the Union." Id. at 29-30.

2. DE-CA-02-0657

The Judge found that the Union established a particularized need for the security surveys and crime assessments because the Union needed that information to determine whether to file a grievance over the Respondents' compliance with Article 23, Section 2.D. of the parties' agreement, which incorporated by reference Section E of the Respondents' Physical Protection and Building Security regulation. Section E states that the Respondents will provide "`all necessary security measures and services identified by security surveys and crime assessments and requested by OHA for the individual building.'" Judge's Decision at 17 (quoting the regulation. Res. Ex. 1). The Judge also concluded that disclosure of the information is not prohibited by law. Accordingly, the Judge found that the Respondents violated § 7116(a)(1), (5) and (8) of the Statute by failing to disclose the requested information. [n4]

3. Remedy

The Judge noted the General Counsel's request for nationwide posting, but found no convincing reasons for such a remedy. Finding that the case arose out of local bargaining, and that the head of the Respondents was not involved, the Judge concluded that "Regional posting, because of the direct involvement of the Region, will effectively show employees that Respondent[s] acknowledge their obligations under the Statute." Id. at 30 n.3.

III. Positions of the Parties

A. General Counsel's Exceptions

1. Failure to Respond to Request for
   Information

The General Counsel asserts that the complaint in Case No. DE-CA-02-0657 alleged that the Respondents committed an independent violation of § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's requests for security surveys and crime assessments. The General Counsel also maintains that the Judge made factual findings establishing that the Respondents failed to respond to those requests. According to the General Counsel, the "failure to respond to a request for information under [§] 7114(b)(4) is inconsistent with the duty to bargain in good faith and independently violates [§] 7116(a)(1) and (5) of the Statute." G.C.'s Exceptions at 14-15 (citing United States Naval Supply Center, San Diego, Calif., 26 FLRA 324, 326-27 (1987) (Naval Supply Center)). The General Counsel requests that the Authority find such a violation on the facts of this case and order the Respondents to post a notice assuring employees that it will not fail to respond to the Union's requests for information under § 7114(b)(4) of the Statute.

2. Matters Covered by the Facilities and Services Article

Citing § 2429.5 of the Authority's Regulations, which provides that the Authority will not consider evidence relating to an issue that was not presented in the proceedings below, the General Counsel agues that the Judge reached legal conclusions concerning matters that were not within the scope of the complaint. Specifically, the General Counsel contends that it was "never alleged that subject matters within the parties' `Facilities and Services' article were part of the consolidated complaint." G.C.'s Exceptions at 16. According to the General Counsel, the complaint pertained only to matters that could have been bargained before the "build-out" commenced on June 27, 2002. Id. Because the Panel did not issue its decision and order on the Facilities and Services article until October, the General Counsel maintains that matters covered by that decision and order are not within the scope of the complaint. Consequently, the General Counsel claims, matters pertaining to the Panel decision and order were "not proper matters for judicial fact finding and legal conclusions." Id. at 17. In this regard, the General Counsel notes, the parties themselves put the Facilities and Services article beyond the issues in this case by agreeing in their MOU to exclude matters currently pending before the Authority [ v60 p678 ] and the Panel from the issues concerning the office move. The General Counsel accordingly requests that the Authority strike the part of the Judge's decision that relates to that article.

3. Scope of the Remedial Notice and Posting

Citing the Authority's standard for determining the scope of a posting requirement, the General Counsel argues that, when national level officials have directed how local and regional officials bargain and furnish information, the Authority has ordered a nationwide posting and required the "principal national official of the agency" to sign the notice. Id. at 19 (citing SSA, Office of Hearings and Appeals, Region II, Buffalo Office of Hearings and Appeals, Buffalo, N.Y., 58 FLRA 722, 727 (2003) (OHA, Buffalo)). According to the General Counsel, the instant case concerns a nationwide unit and a national policy precluding the disclosure of security surveys and crime assessments. In this regard, the General Counsel asserts, "the decision to withhold security surveys was coordinated at the national office" of the Respondents. Id. at 20.

The General Counsel notes that parking has also been an issue between the parties in more than one region, citing OHA, Buffalo. The General Counsel asserts that a nationwide posting will remind the Respondents of their responsibilities with respect to bargaining on such matters in other regions. In this regard, the General Counsel states that "because parking and security surveys affect unit employees at more than one region of the Office of Hearings and Appeals, and because the evidence shows that national level officials have directed several regions in dealing with local requests for information and bargaining in connection with office relocations," more than a region-wide posting is required in this case. Id. at 23-4. Consequently, the General Counsel requests a nationwide posting.

B. Charging Party's Exception

The Charging Party excepts to the Judge's factual and legal conclusions with respect to the finding that the Respondents did not violate § 7116(a)(1) and (5) by refusing to bargain on office entry security. Specifically, the Charging Party argues that the Judge misconstrued and misapplied the relevant provisions of the parties' agreement.

In this regard, the Charging Party notes that the Respondents' negotiators consistently maintained that neither local nor regional management had authority to bargain over changes in entry security resulting from relocation of the office. The Charging Party further notes that the Respondents' negotiators claimed that entry security was covered by Article 23, Health and Safety, of the parties' agreement. According to the Charging Party, Article 23 specifically provides that relocation of an office gives rise to an obligation to bargain at the local level, consistent with Article 2, Mid-Contract Negotiations, over the impact and implementation of any related changes in conditions of employment, including changes in entry security.

Citing Authority precedent, the Charging Party maintains that the Respondents have the burden of establishing the elements of a covered-by defense. See SSA, 55 FLRA 374, 382 (1999). In this regard, the Charging Party asserts that the Respondents did not raise a covered-by defense in their formal pleadings and did not address the matter in their post-hearing brief. Moreover, the Charging Party contends that, properly interpreted, Article 23 relinquishes neither the Charging Party's statutory nor its contractual bargaining rights. According to the Charging Party, national level bargaining settled the question, for example, of whether all Office of Hearings and Appeals offices would have magnetometers; it did not resolve issues related to bargaining over "changes in working conditions or past practices arising from individual office relocations taking place in the future over the three[-]year life of the" collective bargaining agreement. Charging Party's Exceptions at 17. Rather, the Charging Party maintains, under Article 2, Section 4.D., the Respondents were obligated to bargain over changes in conditions of employment, including entry security, "that affect only the St. Louis office, at the level of the St. Louis office." Id. at 18 (emphasis in original).

The Charging Party requests that the Authority find that the Respondents violated § 7116(a)(1) and (5) of the Statute by failing to negotiate security matters related to the relocation of the St. Louis office and issue an appropriate remedy.

C. Respondents' Opposition

1. Opposition to the General Counsel's Exceptions

According to the Respondents, the Judge "found it sufficient to find the Respondent[s] failed to supply the information rather than find a separate charge for not responding to the Union's information request." Respondents' Opposition to the G.C.'s Exceptions (Opposition to G.C.) at 2. The Respondents maintain that the General Counsel is "arguing a very fine point." Id.

The Respondents maintain that the parties were at impasse at the national level over the very matters that [ v60 p679 ] the parties were bargaining in connection with St. Louis office relocation. The Respondents argue that the Judge had to consider the total circumstances of the case in order to decide whether they failed to bargain at the local level. The Respondents note that in Buffalo OHA, the Authority held that completion of bargaining on a matter at the national level will have an effect on bargaining over those matters at the local level. The Respondents assert, in this connection, that it was within the Judge's discretion to take official notice of the national level negotiations.

The Respondents distinguish the cases relied on by the General Counsel in arguing for a nationwide posting. The Respondents maintain that where nationwide issues are not involved, but only local matters, a nationwide posting is not warranted. In this regard, the Respondents state that "more than a region[-]wide posting would not be equitable since the issue was a local hearing office move rather than a national initiative." Id. at 5.

2. Respondents' Opposition to Charging Party's Exception

The Respondents assert that the Judge found that entry security was an issue in national negotiations and that Article 23 was in effect at the time of the bargaining in this case. The Respondents maintain, therefore, that security issues were covered by the collective bargaining agreement. Specifically, the Respondents argue that "the subject matter of the proposals offered by the [Charging Party] in St. Louis were so inseparably bound up with the issues discussed and explored at [n]ational level bargaining on security, that the national level bargaining foreclosed further bargaining over the matter." Respondent's Opposition to the Charging Party's Exceptions at 3.

IV. Analysis and Conclusions

A. The Judge Erred by Failing to Find a Violation of § 7116(a)(1) and (5) for Refusing to Respond to an Information Request

Under § 7114(b)(4) of the Statute, an agency is required to respond to an information request by a union, even if the response is that the information does not exist. See, e.g., Naval Supply Center, 26 FLRA at 326-27. A timely reply to a union's request for information under § 7114(b)(4) is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining. United States Dep't of Justice, Office of Justice Programs, 45 FLRA 1022, 1026-27 (1992). The Authority has consistently held that a failure to respond to such an information request is an independent violation of § 7116(a)(1) and (5) of the Statute. Dep't of Health and Human Services, SSA, New York Region, New York, N.Y., 52 FLRA 1133, 1149-50 (1997); Customs Service, 26 FLRA at 326-27.

The complaint in Case No. DE-CA-02-0657 alleges that the Respondents violated § 7116(a)(1) and (5) by failing to respond to the Union's requests for the security surveys and crime assessments. See G.C. Ex. 1(i) at 3-4. Moreover, counsel for the General Counsel raised this issue in her opening statement to the Judge, Tr. at 14-15, and litigated it at the hearing, see, e.g., Tr. at 105-06. Finally, counsel for the General Counsel addressed this issue in her brief to the Judge. See G.C.'s Post-Hearing Brief at 36-37. The Judge specifically found that the Respondents did not reply to the Union's February 11 and August 2 requests for the security surveys and crime assessments. [n5] Judge's Decision at 19-20.

In sum, the record demonstrates that the General Counsel alleged and litigated the issue of whether the Respondents violated the Statute by failing to respond to the Union's information requests and the Judge specifically found that the Respondents failed to reply to those requests. Consequently, the Judge erred in failing to find that the Respondents committed the alleged violation.

Accordingly, we find that the Respondents independently violated § 7116(a)(1) and (5) of the Statute by failing to respond to the Union's requests for the security surveys and crime assessments and that the order must be revised accordingly.

B. The Judge Did Not Err in Finding No Violation with Respect to Matters Covered by the Facilities and Services Article

The General Counsel excepts to the Judge's finding that the Respondents did not violate the Statute by failing to bargain over matters contained in the Facilities and Services article.

We note first of all that the General Counsel mistakenly relies on § 2429.5 of the Authority's Regulations in support of the exception. That section of the Regulations applies to issues raised before the Authority [ v60 p680 ] that the Authority will not consider. Consequently, the Judge did not violate § 2429.5 by considering the Respondents' covered-by defense.

On the merits of the General Counsel's exception, we note the substance of that exception:

Exception II: To the ALJ's factual and legal conclusions regarding an issue that was not before him, namely, the parties' Facilities and Services article in the collective bargaining agreement which was before the Federal Service Impasses Panel and therefore never contemplated to be within the parties' bargaining over the relocation of the St. Louis Office of Hearings and Appeals.

G.C.'s Exceptions at 2. As plainly worded, the exception concerns the Judge's consideration of the Facilities and Services article as imposed by the Panel. This is consistent with how the exception is argued by the General Counsel. See id. at 16 ("[t]he FSIP [d]ecision is . . . not within the scope of the complaint"); 17 ("the General Counsel never alleged, let alone fully litigated, the FSIP [d]ecision"); 18 ("the consolidated complaint never included the `Facilities and Services article").

Insofar as the General Counsel's exception is construed as claiming that the complaint did not include an alleged violation based on failure to bargain over the matters the Judge found were covered by the Facilities and Services article, the argument is unpersuasive. In this regard, the complaint is clearly broad enough to include the allegations that the Judge resolved and implicitly found encompassed in the complaint. See G.C. Ex. 1(e). In addition, these allegations were specifically made in the charge leading to the complaint. See G.C. Ex. 1(b).

The Respondents relied on the Facilities and Services article in claiming that they did not violate the Statute by failing to bargain over private office furnishings. In fact, the Respondents specifically raised the claim that these matters were covered by the Facilities and Services article before the Judge in its prehearing disclosure. See G.C. Ex. 1(p). The Judge found that the Respondents did not violate the Statute by failing to bargain over private office furnishings, parking, office space, and hearing room space because these matters were covered by the Facilities and Services article resolved by the Panel in its October 24, 2002, Decision and Order. Thus, the exception concerns the Judge's consideration of the Respondents' "covered-by" defense. As such, and as a defense would not be alleged in the complaint in any event, "the fully and fairly litigated" standard does not apply and the General Counsel's argument in this regard is also unpersuasive.

In these circumstances, the Judge did not err by considering the Facilities and Services article and finding that the Respondents did not violate the Statute with respect to matters contained in that article. [n6] See United States Dep't of the Air Force, Hqs., 96th Air Base Wing, Eglin AFB, Fla., 58 FLRA 626, 628 (2003), citing United States Dep't of Labor, Washington, D.C., 51 FLRA 462, 467 (1995) ("[t]he test of full and fair litigation is `whether the respondent knew what conduct was at issue and had a fair opportunity to present a defense.'") (Emphasis added).

C. The Issue of Whether the Respondents Violated the Statute by Failing to Bargain over Office Security Must Be Remanded

The Judge found that the Respondents did not violate the Statute by failing to bargain over the matter of office entry security because that matter was covered by Article 23 of the parties' national collective bargaining agreement. [n7] The Charging Party excepts to that finding.

A subject matter for negotiation is covered by a collective bargaining agreement if the matter is expressly contained in the agreement. See United States Dep't of Health and Human Services, Soc. Sec. Admin., Baltimore, Md., 47 FLRA 1004, 1018 (1993) (SSA I). If the agreement does not expressly contain the matter, then the Authority will determine whether the subject is inseparably bound up with, and thus plainly an aspect of, a subject covered by the agreement. Id. Consideration of the parties' bargaining history is an "integral component" of determining whether the matter is inseparably bound up with, and thus plainly an aspect of, the a subject covered by the agreement. United States Customs Serv., Customs Mgt. Ctr., Miami, Fla., 56 FLRA 809, 814 (2000). Moreover, in unfair labor [ v60 p681 ] practice cases which turn on the meaning of the parties' collective bargaining agreement, the Authority has held that, where a judge's interpretation of the meaning of the parties' agreement is challenged, it will determine whether the judge's interpretation is supported by the record and by the standards and principles applied by arbitrators and the Federal courts. IRS, Washington, D.C., 47 FLRA 1091, 1110-11 (1993) (IRS).

In sum, the SSA I "covered by" defense is available to a party claiming that it is not obligated to bargain because it has already bargained over the subject at issue. The IRS doctrine applies when a party "relies on a contract provision specifically concerning bargaining (such as a reopener or zipper clause)" that relates to the parties' bargaining obligations. See SSA, Region VII, Kansas City, Missouri, 55 FLRA 536, 538 (1999) (SSA III). The Authority has held that, in appropriate circumstances, both an SSA I and an IRS analysis may apply in the same case.

In this case, the Charging Party challenges the Judge's interpretation of Article 23 of the parties' agreement as covering the security matters being bargained at the local level and, thus, as permitting the Respondent to refuse to bargain on those matters at that level. Thus, resolution of the issue of whether bargaining on security matters is "covered by" the parties' agreement under SSA I depends on an analysis, under IRS, of whether the Judge properly interpreted the parties' bargaining obligations under that agreement.

Article 23 provides, generally, that a Health and Safety Labor-Management Committee will be established to provide recommendations for measures to improve health and safety within OHA and the first subject for consideration by the committee will be office entry security. More particularly, Article 23 provides that: (1) Article 23 will apply prospectively to hearing office moves for which an initial Occupancy Agreement has been signed after the agreement is in effect; (2) the first subject for consideration by the Health and Safety Labor-Management Committee will be office entry security; and (3) establishment of the committee does not constitute a waiver of the Union's right to bargain, in particular, its right, under Article 2, Section 4, to bargain over the impact and implementation of proposed changes that affect only one hearing office. [n8]

It is not clear from the terms of Article 23 what or whether particular entry security matters were being preserved for discussion and resolution at the national level. While Article 23, Section 4.E. provides that establishment of the committee does not waive the Union's statutory right to bargain, it is not clear that, by agreeing to that section, the Respondents were foregoing the right to claim that particular matters covered by Article 23 were preserved for discussion and resolution at the national level. Moreover, testimony by the parties' witnesses was conflicting as to whether bargaining on security matters was to take place only at the national level. See Tr. 358-65, 375-83, and 435-39.

In this regard, Section 4.E. of Article 23 does not directly, or indirectly, address the question of whether the Respondents are permitted to raise a "covered by" defense to requested bargaining at the local level. Thus, Section 4.E. could be construed as either: (1) providing for local bargaining over matters within the purview of the health and safety committee and exempting that bargaining from a "covered by" defense; or (2) providing that although the establishment of the committee does not in and of itself affect bargaining obligations, other matters, including a "covered by defense," could affect such bargaining. Consequently, because the terms of Article 23 are not sufficiently clear for us to resolve their meaning, we are unable to determine the effect of Article 23 on the bargaining obligations in this case.

Since we are unable to determine, consistent with the standard articulated in IRS, whether Article 23 precludes bargaining at the local level over the security matters at issue in this case, we remand to the Chief Administrative Law Judge the issue of whether Article 23 and Article 2, Section 4(D), permit bargaining over security matters at the local level. See, e.g., SSA, Baltimore, Md., 55 FLRA 246 (1999); United States Air Force Academy, Colorado Springs, Colo., 50 FLRA 498 (1995).

D. The Scope of the Posting Should Be Nationwide

In determining the scope of a posting requirement, the Authority considers the two purposes served by the posting of a notice. United States Dep't of Justice, Fed. Bu. of Prisons, Office of Internal Affairs, Wash., D.C., 55 FLRA 388, 394 (1999) (Office of Internal Affairs); United States Dep't of Justice, Office of the Inspector General, Wash., D.C., 47 FLRA 1254, 1263-64 (1993) (OIG). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. Second, in many cases the posting is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. Office of Internal Affairs, [ v60 p682 ] 55 FLRA at 394-95. Moreover, to further these purposes, the Authority has determined that there are circumstances where it is appropriate to require that notices be posted in areas other than the particular locations where the violation occurred. Id. at 395. See also United States Dep't of the Treasury, IRS, 56 FLRA 906, 913-14 (2000) (IRS).

In particular, the Authority has ordered a broad posting "where the violation involved `an issue of import' to members of the unit who do not work at the site where the violations occurred." Office of Internal Affairs, 55 FLRA at 395 (quoting OIG, 47 FLRA at 1263). Such a broad posting has been required where the respondent refused to bargain over a matter based on an article in the parties' national agreement and the refusal to bargain was "established" by the respondent's national labor relations office. IRS, 56 FLRA at 913.

In this case, the complaint alleged that the national level Respondent was involved in the alleged violations of the Statute. Moreover, evidence in the record, particularly testimony of officials at the national level, demonstrates that the response of Respondents' management at the regional and local level, especially with respect to the information request for the security surveys and crime assessments originated in discussions at the national level of the Respondents. See, e.g., Tr. 392-93, 408-10. Clearly, the Respondents' position on the disclosability of the security surveys and crime assessments reflects its policy with regard to these documents. The Respondents have demonstrated, through their response to the information request in this case, that they will not disclose security surveys and crime assessments, if a particularized need is established for those documents in connection with bargaining concerning security matters at any local facility. As such, the disclosability of those documents is an "issue of import" for all employees in the Charging Party's nationwide unit. See id.

In these circumstances, a posting confined to the region, as ordered by the Judge, would not effectuate the purposes served by the posting of the notice; nor would officials at the regional level be the appropriate officials to sign the notice. Accordingly, we direct the notice in this case to be posted throughout the unit of exclusive recognition represented by the Charging Party and to be signed by the head of the Social Security Administration.

V. Order

Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Baltimore, Maryland, the Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri, and St. Louis, Missouri shall:

1. Cease and desist from:

(a) Failing and refusing to reply to information requests from the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

(b) Failing and refusing to furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.

(c) Refusing to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL-CIO, on the office floor plan for the OHA office at 200 North Broadway.

(d) Refusing to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL-CIO, over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.

(e) Implementing changes in conditions of employment of bargaining unit employees prior to completion of bargaining.

(f) Refusing to provide the Association of Administrative Law Judges, IFPTE, AFL-CIO, information appropriately requested under § 7114(b)(4) of the Statute.

(g) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

(a) Reply in a timely manner to requests for information made by the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and [ v60 p683 ] proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

(b) Furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.

(c) Upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith on the floor plan for the OHA office at 200 North Broadway and implement all negotiated changes.

(d) Upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.

(e) Post at all of its facilities where bargaining unit employees are located 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 Administrator, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(f) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

IT IS FURTHER ORDERED that the portion of the complaint alleging that the Respondents violated § 7116(a)(1) and (5) of the Statute by failing and refusing to bargain over security matters at the local level be remanded to the Chief Administrative Law Judge for further processing consistent with this decision.

IT IS ALSO ORDERED that the remaining allegations of the complaint be, and they hereby are, dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Baltimore, Maryland, the Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri, and St. Louis, Missouri violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail and refuse to reply to information requests from the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

WE WILL NOT fail and refuse to furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.

WE WILL NOT refuse to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL- CIO, on the office floor plan for the OHA office at 200 North Broadway.

WE WILL NOT refuse to bargain in good faith with the Association of Administrative Law Judges, IFPTE, AFL- CIO, over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.

WE WILL NOT implement changes in conditions of employment of bargaining unit employees prior to completion of bargaining.

WE WILL NOT refuse to provide the Association of Administrative Law Judges, IFPTE, AFL-CIO, information appropriately requested under § 7114(b)(4) of the Statute.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. [ v60 p684 ]

WE WILL reply in a timely manner to requests for information made by the Association of Administrative Law Judges, IFPTE, AFL-CIO, the employees exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

WE WILL furnish to the Association of Administrative Law Judges, IFPTE, AFL-CIO, on request, a copy of the Federal Protective Service, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by its Office of Protective Security Services, or by its contractors.

WE WILL, upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith on the floor plan for the OHA office at 200 North Broadway and implement all negotiated changes.

WE WILL, upon request of the Association of Administrative Law Judges, IFPTE, AFL-CIO, bargain in good faith over reservation of parking slots provided by the building lease for rental by the Administrative Law Judges.

_____ (Activity)

Dated: _ By: ___

(Signature) (Title)

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, Denver Regional Office, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581 and whose telephone number is (303) 844-5226.

APPENDIX

1. Article 23 of the parties' collective bargaining agreement provides, in relevant part, as follow:

ARTICLE 23

HEALTH AND SAFETY

Section 1

. . . .

C. The Agency and the [Union] further agree to cooperate in a continuing effort to eliminate and/or reduce security concerns and otherwise enhance the personal safety of Judges in SSA/OHA hearing offices, satellite offices, and remote site locations.

Section 2

. . . .

D. The Agency will comply with the Physical Protection and Building Security (Section E) provisions contained in the Space Allocation Standard for OHA Field Offices. It is the intent of the parties that Section 2(D) of this Health and Safety Article will apply prospectively to hearing office moves for which an initial Occupancy Agreement (OA) is signed after the date the National Agreement is in effect. This article is subject to the grievance procedure.

Section 4

A. Pursuant to this agreement, there shall be formed a Health and Safety Labor Management Committee. The Committee shall meet to exchange information, study, discuss and provide recommendations for improving health and safety measures within OHA. Entry security is the first health and safety issue the Committee will address.

. . . .

E. Establishment of this committee does not constitute a waiver of any of the [Union's] statutory rights to information, consultation, or negotiations. The activities of the H & S LMC will not replace the OHA's responsibility to provide appropriate notice and the opportunity to bargain over impact and implementation under Article 2, Mid[-]Contract Negotiations of this agreement.

Respondents' Exhibit (Res. Ex.) 2, pp. 105-07.

2. Article 2 of the parties' collective bargaining agreement provides, in relevant part, as follows: [ v60
   p685 ]

ARTICLE 2

MID[-]CONTRACT NEGOTIATIONS

. . . .

Section 4

A. The Parties agree that proposed changes that apply on a nationwide or multi-regional basis shall be negotiated at the OHA Central Office level.

B. Proposed changes which shall be implemented in hearing offices in more than one (1) region made pursuant to a national or multi-regional initiative that require variation in the changes to meet the needs of each individual hearing office shall be negotiated at the regional office level in each affected region.

C. Proposed changes that apply at more than one (1) hearing office within a region shall be negotiated at the regional office level.

D. Proposed changes that apply to one (1) hearing office shall be negotiated at that hearing office level.

. . . .

G. Both Parties agree that officials of SSA/OHA and the [Union] at levels lower than the national level do not have authority to negotiate agreements that conflict with this national agreement.

Res. Ex. 2, pp. 6-7.

File 1: Authority's Decision in 60
FLRA No.
132

File 2: ALJ's Decision

Footnote # 1 for
60
FLRA No. 132

• Authority's Decision

The Judge who conducted the hearing in this case is no longer with the Authority.

Footnote # 2 for
60
FLRA No. 132

• Authority's Decision

The Facilities and Services article covered such matters as: (1) "space allocation for offices, . . . size of ALJ offices and hearing rooms;" (2) "equipment and furnishings for ALJ offices and hearing rooms;" (3) "whether ALJs should be permitted to have personally-owned furnishings in their offices;" (4) "locks for office doors;" and (5) "free parking for ALJs." Judge's Decision at 3 (citing G.C. Ex. 32 at 4).

Footnote # 3 for
60
FLRA No. 132

• Authority's Decision

There is no dispute concerning the Judge's conclusion that the Respondents violated § 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith over: (1) the floor plan of the new location; and (2) reservation of parking slots provided by the lease for rental by the ALJs.

Footnote # 4 for
60
FLRA No. 132

• Authority's Decision

No exceptions were filed to the Judge's findings and conclusions in this regard. As no exceptions were filed, we adopt these findings and conclusions without precedential significance pursuant to § 2423.41 of the Authority's Regulations. See, e.g., United States Dep't of the Air Force, Seymour Johnson AFB, 57 FLRA 884, 884 n.2 (2002).

Footnote # 5 for
60
FLRA No. 132

• Authority's Decision

The Judge found that the Respondents replied on November 28, 2001, to the Union's first request for the security surveys and crime assessments by informing the Union that such information did not exist. However, upon learning from the FPS employee who prepared the survey and assessment that those documents had been submitted to the Respondents at the end of January 2002, the Union requested the information once again on February 11, and renewed the request on August 2. The Judge found that the Respondents did not reply to these requests.

Footnote # 6 for
60
FLRA No. 132

• Authority's Decision

Chairman Cabaniss disagrees with this conclusion. As the General Counsel states, matters covered by the Facilities and Services article were not a part of the complaint, and the record demonstrates that such matters were not disputed before the Judge. If those matters were not alleged or litigated as violations, the fact that the Respondents presented a defense thereto is irrelevant. Chairman Cabaniss, therefore, would vacate the portion of the Judge's decision finding that the Respondents did not violate the Statute by failing to bargain over matters covered by the Facilities and Services article.

Footnote # 7 for
60
FLRA No. 132

• Authority's Decision

With respect to the Charging Party's argument that the issue has not been properly raised, the claim that security matters are covered by Article 23 has consistently been a part of the Respondents' position in this case. See, e.g., G.C. Ex. 15. Moreover, the General Counsel and the Charging Party litigated the effect of Article 23 before the Judge without any objection.

Footnote # 8 for
60
FLRA No. 132

• Authority's Decision

Article 2, Section 4, of the parties' collective bargaining agreement prescribes the parties' bargaining obligations with respect to changes in conditions of employment affecting more than one region, more than one hearing office within a region, and only one hearing office.

[ v60
p686 ]

Office of Administrative Law Judges

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND AND

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

KANSAS CITY, MISSOURI, AND

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

ST. LOUIS, MISSOURI

Respondents

and

INTERNATIONAL FEDERATION OF

PROFESSIONAL AND TECHNICAL

ENGINEERS, ASSOCIATION OF

ADMINISTRATIVE LAW JUDGES

REGION VII

Charging Party

Case Nos. DE-CA-02-0657

DE-CA-02-0658

Hazel E. Hanley, Esquire

For the General Counsel

Mr. John Barrett

Ms. Marybeth Pepper

For the Respondents

Honorable Mark A. Brown

For the Charging Party

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. [n1] , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1 et seq., concerns: (a) whether Respondent implemented the relocation of the St. Louis Office of Hearings and Appeals before completing bargaining with the Union (G.C. Exh. 1(e)); and (b) whether Respondent, contrary to § 14(b)(4) of the Statute, refused, "requested copies of `any security surveys and crime assessments that have been prepared by GSA, FPS, SSA/OHA or any other entity for the OHA office on the ninth floor at 200 No. Broadway, St. Louis, Missouri.'" (G.C. Exh. 1(i)).

This case was initiated by a charge filed in Case No. DE-CA-02-0658 on August 9, 2002 (G.C. Exh. 1(b)) which alleged violations of §§ 16(a)(1), (5) of this Statute. A Complaint and Notice of Hearing issued on November 7, 2002 (G.C. Exh. 1(d)) and alleged violations of §§ 16(a)(1) and (5). On December 2, 2002, the Amended Complaint and Notice of Hearing issued (G.C. Exh. 1(e)), also alleged violations of §§ 16(a)(1) and (5) and set the hearing for February 25, 2003, at a place to be determined in St. Louis, Missouri.

The charge in Case No. DE-CA-02-0657 was also filed on August 9, 2002, and alleged violations of §§ 16(a)(1), (5) and (8) of the Statute (G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued on December 31, 2002, alleged violations of §§ 16(a)(1), (5) and (8) and set the hearing for February 25, 2003, at a place to be determined in St. Louis, Missouri. On January 15, 2003, an Order issued Consolidating the Complaints in Case Nos. DE-CA-02-0657 and DE-CA-02-0658, and fixed the place of hearing (G.C. Exh. 1(l)), pursuant to which a hearing was duly held on February 25 and March 19, 2003, before the undersigned in St. Louis, Missouri. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were offered the opportunity to present oral argument which the Charging Party exercised. At the close of the hearing, by agreement of the parties, April 28, 2003, was set as the date for mailing post-hearing briefs. Charging Party, Respondent and General Counsel each timely mailed an excellent brief, received on, or before May 5, 2003, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

FINDINGS

1. The Association of Administrative Law Judges, International Federation of Professional and Technical Engineers (hereinafter, "AALJ") is the certified exclusive representative of a nationwide unit of Administrative Law Judges of the Social Security Administration, Office of Hearings and Appeals (hereinafter, "Respondent") (G.C. Exh. 1(e) and 1(i).

There are two other units of Respondent's employees represented, nationwide, by the American Federation [ v60 p687 ] of Government Employees (hereinafter, "AFGE") and the National Treasury Employees Union (hereinafter, "NTEU") (Tr. 256, 352-53).

2. On August 30, 2001, AALJ and Respondent entered into a nationwide collective bargaining agreement (hereinafter, "Agreement") which covered all issues except Facilities and Services which was reserved for separate negotiation (Res. Exh. 2; Tr. 358).

AALJ and Respondent met and bargained on the Facilities and Services provisions but did not reach agreement (this Article involved, inter alia,: space allocation for offices, in particular, size of ALJ offices and hearing rooms; equipment and furnishings for ALJ offices and hearing rooms; whether ALJs should be permitted to have personally-owned furnishings in their offices; locks for office doors; and free parking for ALJs (G.C. Exh. 32, p. 4)); the services of the Federal Service Impasses Panel (hereinafter, "FSIP" or "Panel") were invoked; an informal conference was conducted on July 23 and 24, 2002; and the Panel issued its Decision and Order on October 24, 2002 (G.C. Exh. 32).

3. In the meantime, on August 8, 2001, Respondent notified the Union that the St. Louis office was relocating from the Old Post Office Building at 815 Olive Street, to the St. Louis Place Building at 200 North Broadway (G.C. Exh. 2; Tr. 24-25) and a proposed office floor plan was attached (G.C. Exhs. 2 and 34). On August 10, 2001, the Union requested I&I bargaining (G.C. Exh. 3). On August 24, 2001, Respondent set the negotiations for September 10, 2001, and asked that initial proposals be submitted by September 6, 2001 G.C. Exh. 4).

4. On September 7, 2001, the Union submitted its initial proposal which proposed that: Respondent install a magnetometer, x-ray machine and hand held security wand at the public entrance to the new Hearing Office space; provide eight free inside parking spaces for ALJs; that Respondent's proposed floor plan be modified as shown on the Union's proposed floor plan (G.C. Exh. 35; Tr. 37); that locks be installed on each ALJ's office door and on doors leading from the public waiting area to the hearing room and the door from the hearing room to private hallways and a keypad lock and peephole be placed on the door from the public elevator to employee restrooms; that each ALJ be given an allowance for purchase of new office furniture (G.C. Exh. 5, Attachment; Tr. 33-34, 35, 37).

5. The parties met on September 10, 2001 and the Union requested a copy of the lease but was told it did not exist (Tr. 40). Respondent, obviously, spoke with a forked tongue, because the lease, dated September 2, 2001 (Tr. 74), was belatedly furnished by Respondent on December 3, 2001 (Tr. 73, 74). The Union stated that its number one issue was security. Respondent replied that it was not authorized to bargain about security and refused to bargain about security at all (id.). The Union then tried to talk about parking and, again, Respondent said it was not authorized to talk about parking (Tr. 40-41). They did talk about the floor plan and ALJ's proposal about office furnishings (Tr. 41).

The parties resumed negotiations on September 11, 2001, but negotiations broke off early because of the attacks on the World Trade Center and the Pentagon (id.). During negotiations on September 10 and 11, 2001, the parties discussed the floor plan, and Respondent said it already had given its floor plan (G.C. Exh. 34) to the two other Unions, i.e., AFGE and NTEU, and couldn't enter into any agreement with the Union that would change its floor plan (G.C. Exh. 34).

The Union offered two ways to address the matter: (a) the Union was perfectly willing to have a bargaining session with all three unions together to negotiate about the floor plan (Tr. 43); or (b) Respondent could take the Union's proposed floor plan (G.C. Exh. 35), re-label it as Respondent's amended floor plan and submit it to AFGE and NTEU. If there were no complaints, then the floor plan was settled; and if there were objections, further negotiating would be required. Respondent refused to do either (Tr. 43). No date was set for the resumption of negotiations when the parties suspended on September 11, 2001.

6. On September 28, 2001, Ms. Leslye Sims, Respondent's Chief Negotiator, sent the Union Respondent's ". . . final bargaining proposal concerning the relocation of the St. Louis Hearing Office." (G.C. Exh. 6).

In her letter, Ms. Sims further stated,

"As I expressed to you at the bargaining table, it is the position of the Agency that neither local nor regional management has an obligation to bargain over security, and parking. In addition, subsequent investigations have revealed that the issue of office furnishings is also an issue that neither local nor regional management has an obligation to bargain. The Union's demand to bargain on these issues properly belongs at the national level otherwise referred to as the level of exclusive recognition for the IFPTE. Manage-ment and the IFPTE agreed to bargain these [ v60 p688 ] very issues as part of the national agreement. The parties have not agreed to bargain these issues at the local or regional level. . . ." (id.).

Judge Mark A. Brown, who succeeded Judge John J. Robin as Chief Negotiator for the Union in late October, 2001 (G.C. Exh. 7; Tr. 46-47), stated that the floor plan attached to Ms. Sims' "final bargaining proposal" was unchanged, i.e., that it was the same as G.C. Exh. 34 (Tr. 45). The Union understood Ms. Sims' September 28 letter to be the precuser to mediation and on November 1, 2001, Judge Brown had a telephone conversation with Ms. Sims which he followed up with an e-mail on November 2, 2001, stating, in part, as follows:

". . . A literal reading of the second full paragraph of your 9/28/01 letter would indicate that the Agency is refusing to bargain at the local or regional level on: 1) security; 2) parking; and 3) office furnishings. If this is correct, then the judges union assumes you will engage in mediation over only: 4) the office floor plan. The judges' union is willing to engage in mediation on all 4 issues.

"If we do not receive a reply from you within 5 working days of your reading this e-mail, then we shall assume you will agree to mediation on only the floor plan, and we shall proceed accordingly. . . ." (G.C. Exh. 7).

7. The parties met with FMCS Mediator Eugene Brawley on December 3 and 4, 2001, in Kansas City, Missouri (Tr. 73). Judge Brown on December 3, again asked about the lease and Ms. Sims said, ". . . give them a copy of the lease" (id.). The assertion that nothing was agreed to by the parties in December (Tr. 82) is not entirely correct. The parties did work on a memorandum of understanding (MOU) at the mediator's suggestion and, as evidenced by the initials of Judge Brown and Ms. Sims, obviously reached agreement on what Judge Brown termed the ". . . mechanical issues related to the move . . . . Just the mechanical nuts and bolts of the physical move." (Tr. 61, 81-82; G.C. Exh. 15, Attachment). Notwithstanding their apparent agreement on the substance of the MOU, it was not signed. On January 25, 2002, Regional Chief Administrative Law Judge, Jesse H. Butler, sent the following letter to Judge Brown, stating, in part, as follows:

"This is to notify that management intends to implement its `last-best offer' dated December 4, 2001, concerning the relocation of the St. Louis Hearing Office.

"On August 8, 2001 you were provided with the floor plans for the St. Louis Office Relocation. On August 10, 2001 you requested to bargain, and, after an exchange of initial bargaining proposals, further negotiations commenced on September 9, 2001. The parties negotiated for 1 ½ days with no agreement being reached. Due to the tragic events of September 11, 2001 the parties agreed to suspend negotiations at that time. They subsequently met with the mediator on December 3-4 with no agreement being reached, and the parties were declared at impasse by the mediator. The five major issues separating the parties are, size of judges offices, size of hearing rooms, parking, security, and general floor plan layout[.]

"The size of judges' offices, the size of hearing rooms, and parking are matters for which there is no authority or duty to negotiate at this level of the organization. These issues are nationwide initiatives affecting all hearing offices and must be negotiated at the level of exclusive recognition. They have been fully explored and negotiated to impasse at this level, and there is no mutual agreement at that level to further bargain those matters below the level of exclusive recognition.

"Security is contained in and covered by Article 23 Health and Safety, of the National Agreement. The Office of Hearings and Appeals has no obligation to bargain further on security since it was fully discussed and consciously explored during national level bargaining and contained within the agreement. Moreover, even if there were some ongoing duty and authority to negotiate those matters at this level of our respective organizations, we believe our `last-best offer' is comparable to the industry standards for public employment - we cannot agree to more and also ensure the efficiency and effectiveness of our operations.

"The general floor plan layout is effective and efficient. It provides employees with office space and workspace that complies with the Space Allocation Standards of the Social Security Administration. The other two unions representing employees affected by the office move, AFGE and NTEU, have agreed with the floor plan. We do not believe there is a demonstrated need to modify that layout, and believe it is consistent with the requirements of an efficient and effective hearing office. [ v60 p689 ]

". . . The build out will begin at One St. Louis Place on February 11, 2002. The projected move in date is the week of May 20, 2002.

"Enclosed is a copy of our `last-best offer' . . . ." (G.C. Exh. 15).

The "last-best offer" was the unsigned MOU plus, as ROCALJ Butler noted, Respondent's floor plan (G.C. Exh. 34).

Back to the December 3-4 mediation, Judge Brown stated that on December 4, Mediator Brawley told the Union that Respondent had already signed off on the floor plan with the other two unions (Tr. 78), which was the first time the Union knew that AFGE and NTEU had agreed with Respondent on the floor plan (id.). When the parties met jointly, Ms. Sims verified Mediator Brawley's statement (Tr. 79).

Judge Brown stated that Respondent asserted two reasons for its adamant insistence on its floor plan: (1) for work flow purposes (Tr. 75); and (2) St. Louis Hearing Office Chief ALJ, Judge Riley, said, in front of the mediator, ". . . that she didn't want all the white male judges sitting together down at the same end of the building" (Tr. 76), to which the Union had responded, ". . . you can't do that. That's illegal. . . ." (id.). In any event, Respondent refused to give any consideration to the Union's proposed floor plan (G.C. Exh. 35) and from September, when it first met to negotiate, through mediation in December, 2001, it refused to consider any change to its floor plan (G.C. Exh. 34) except that on December 4, Respondent said it would be willing to exchange the Judge's office toward the bottom left with the office of the Group Supervisor's office, i.e., on G.C. Exh. 34, the last office on the bottom left (GS) would move to the third office (J) (Tr. 174). The Union rejected this switch (id.).

Judge Brown strongly disagreed with ROCALJ Butler's statement that the, ". . . parties were declared at impasse by the mediator. . . ." (G.C. Exh. 15; Tr. 83). To the contrary, Judge Brown stated,

"The mediator said, I do not declare an impasse.' He said that several times. He said,The parties declare an impasse. I do not declare an impasse.' And so the mediator never declared an impasse . . . ." ) (Tr. 80; see also, Tr. 177).

7. On September 10, 2001, the Union told Respondent that it had located a free surplus magnetometer and a free wand and that the Union wanted to get it and install it; but Respondent refused to talk about it (Tr. 89). On September 18, while HOCALJ Riley and Hearing Office Director Kumpe were away, Judges Brown and O'Blennis picked up the surplus magnetometer and wand and installed the magnetometer (Tr. 89, 179). Judge Brown said the guards, ". . . were ecstatic that we had it" (Tr. 89). The day after Judge Riley and Ms. Kumpe returned, on September 21, 2001, they had the magnetometer and the wand removed and locked up and refused to talk to the Union about it (Tr. 179-180). In January, 2002, Respondent returned the magnetometer and wand to FDA (Tr. 180).

8. May 20, 2002, came and went but neither had construction begun nor had a new moving date been set, so on May 29, 2002, Judge Brown asked for clarification of the build-out and moving date (G.C. Exh. 20; Tr. 107) and Ms. Karen R. Kumpe, HOD, replied the same day by e-mail that, "It is my understanding that we will not be moving until sometime in July." (G.C. Exh. 19). Again, there was delay on the beginning of construction and on July 2, 2002, Ms. Sims notified Judge Brown that construction had begun on June 27, 2002; that completion was expected by September 27, 2002; and that occupancy was expected no later than September 30, 2002 (G.C. Exh. 22).

On August 7, 2002, the parties re-visited the MOU which they had largely completed on December 4, 2001 (G.C. Exh. 28; Tr. 114). Judge Brown suggested a caption, ". . . as either a, open quote, partial MOU, close quote, or a, open quote, MOU on items not in dispute, close quote." The parties met on August 9 in the St. Louis OHA office and physically present were: Judges Brown and O'Blennis for the Union and for Respondent, Ms. Kumpe (HOD) and by telephone, Ms. Sims. The parties agreed on the phrase, "(Concerning only matters not currently disputed before FLRA and FSIP) to be added under the caption, "Memorandum of Understanding" (Tr. 118) and the parties signed the MOU on August 9, 2002 (G.C. Exh. 30, Attachment) which was approved by Respondent on September 6, 2002 (G.C. Exh. 30). At the time the MOU was signed, the Union's appeal of the Regional Director's dismissal of the charge in Case No. DE-CA-02-0229 was still pending and the appeal was not denied until September 6, 2002 (G.C. Exh. 33; Tr. 119). On August 9, 2002, but after the MOU had been signed (Tr. 125), the Union filed the charges herein (G.C. Exhs. 1(a) and 1(b).

9. There is no dispute that the Union's initial demand was for 8 free internal parking spaces (G.C. Exh. 5, Attachment) which appeared to continue through the December, 2001, bargaining-mediation (G.C. Exh. 15, Attachment); but Judge Brown testified [ v60
   p690 ] that in December, 2001, the Union orally proposed that, because the lease provided that for stated amounts of space leased, the building would make available parking slots which had to be paid for, Respondent seek allocated parking slots for Judges who wished to park there, each judge paying the monthly fee (Tr. 160, 198-199) (Judge Brown said, based on the amount of space leased by Respondent there would be about 15 slots available (Tr. 199)). Judge Brown stated that Ms. Kumpe, one of Respondent's negotiators, responded, "`I'm not going to do that because then if I did that for all the judges, then there might not be any spaces left for any other bargaining unit members that might want the same thing.' And so, you know, my reaction was she's concerned about the other bargaining unit. We're supposed to be bargaining about our bargaining unit. And that's why the federal mediator called her obstructionistic. So we talked about it." (Tr. 199-200). Judge Brown said he talked about it again in January, 2002, with Ms. Sims who recommended, "he call the landlord" (Tr. 200-201).

Both Ms. Sims and Ms. Kumpe testified at the hearing and neither challenged nor denied Judge Brown's testimony. Accordingly, I credit Judge Brown's testimony that the Union made an oral demand to bargain on seeking allocated parking slots in the building lease for which each Judge interested would pay.

The Federal Service Impasses Panel (FSIP) in its October 24, 2002, Decision and Order with respect to Parking, Sections 8.A. and 8.C., stated, in part, as follows:

". . . we shall order that current parking practices concerning ALJs in the Employer's approximately 140 hearing offices be "grand fathered" until such time as the office lease expires, an office expands its current space, or an office is relocated. When any one of these triggering events occurs, the Employer then may make changes, as needed, with respect to the distribution of free parking for ALJs in that office. This approach should avoid short-term disruption in the conditions of employment for some ALJs while eventually permitting the Employer to reconcile discrepancies between its past practices and the criteria established in regulations and agency policy concerning priority distribution of parking spaces. . . . As to the Union's proposal in Section 8.C., ["In Section 8.C., the Union proposes that the agency `use its best effort to obtain at least one parking space for judge use at each permanent remote site.'"] the meaning of the term "best effort" is unclear, and may lead to grievances over whether the Employer has satisfied its obligations under the provision. Accordingly, we shall order the Union to withdraw the proposal." (G.C. Exh. 32, page 20). (Emphasis supplied).

In its Order the FSIP stated:

"11. Sections 8.A. and 8.C., Parking

"In Section 8.A., the parties shall adopt the following wording:

"The current parking situations for ALJs in the approximately 140 hearing offices shall remain in place. However, when an office lease expires, an office expands its current space, or an office is relocated, changes in the distribution of free parking for ALJs may be made by the Employer consistent with Government-wide regulations in 41 C.F.R. § 101 [now, 41 C.F.R. § 102-74.305] concerning the criteria for assignment of parking spaces, and OM Memorandum dated June 7, 2000.

"In Section 8.C., the Union shall withdraw its proposal." (id., page 23) (Emphasis supplied).

The March, 1998, Space Allocation Standards (Res. Exh. 1) provides, in part, as follows:

"F. Parking

"SSA policy is that free or subsidized parking for the general public or employees will not be furnished at additional expense to SSA due to budgetary costs. In some instances, SSA will request parking for carpools, disabled employees, and in and out parking for employee use and for program purposes. OHA may request a maximum of two parking spaces for `in and out' business for program purposes. These spaces will be included as part of the lease. Neither the OHA ROs or hearing offices have the authority to request parking from GSA for any other reasons. Written approval from the Office of the SSA Deputy Commissioner for Finance, Assessment and Management, must accompany any request for parking to GSA other than as described in this section. Otherwise, GSA will not comply with the request for parking.

. . .

"SSA/OHA will accept free parking only when the lessor furnishes parking for building tenants which is included as part of the lease. This occurs when [ v60 p691 ] tenants are offered free parking spaces based on the amount of space leased. These parking spaces should be allocated on a priority basis to disabled employees, in and out business parking for program purposes, carpools, then others.

. . . ." (Res. Exh. 1, pp. 6-7) (Emphasis supplied).

10. Entry security, i.e., magnetometers, wands, x-ray machines; etc, was an AALJ demand at the national negotiations (Tr. 359, 435, 436). Most, if not all, hearing offices are Class Two under the June 28, 1995, Vulnerability Assessment of Federal Facilities issued by the Department of Justice following the bombing of the Murrah Building in Oklahoma City, Oklahoma in 1995 (Tr. 360, 401). The highest security level is Five, examples being the Central Intelligence Agency, Social Security's national computer center and the White House. Most Agencies, including Headquarters of Social Security, are level four (Tr. 400, 402). Ms. Bobbi Kagen, Acting Director of Social Security's Office of Protective Security Services (Tr. 397) stated, ". . . SSA has an articulated policy that we do not install magnetometers in our level one and two offices." (Tr. 402); nevertheless, there are some level two field offices and hearing offices that have had, and still have, magnetometers (Res. Exh. 8; Tr. 388, 390, 410-411, 414, 415, 416, 417, 418).

Ms. Marybeth Pepper, employed in Social Security Administration's Office of Labor Management and Employee Relations for 20 years (Tr. 351), was a member of management's negotiating team and she said, ". . . at the national level we had decided that we wanted to negotiate those things that impacted all hearing offices. Security would be an area that we thought we should negotiate only at the national level because we wanted a uniform policy as to how security was implemented in our various hearing offices so we maintained jurisdiction at the . . . OHA level, national level over that issue, the agency never delegated that authority to negotiate those topics to the local level." (Tr. 362-363).

Judge James Horn, until June, 2001, Regional Vice President for the Chicago Region of the Union and one of the Union's negotiators for its master agreement (Res. Exh. 2; Tr. 434) testified that the AALJ proposed that all hearing offices be deemed or treated as level four offices based upon the Department of Justice vulnerability assessment from 1995 (Tr. 435); that the Union, ". . . asked for magnetometers, we wanted them as part of level four security, that was our initial position." (Tr. 436). Judge Horn further stated,

"No. I wouldn't say we ever gave up magneto-meters, we simply couldn't reach a resolution on the issue and the labor management agreement that would have this committee was designed to further address the issues of entry security . . . .

"The other side of the coin had to do with existing offices that were being relocated or would be relocated after the contract became effective and the way we dealt with that was to recognize in the contract that as part of any relocation, the Federal Protective Service would go out to sites and evaluate the threat risk each office presented and would make recommendations . . . ." (Tr. 436-437).

Although Judge Horn first asserted that AALJ never agreed to take magnetometers off the table (Tr. 439), it is clear that it did. Thus, Judge Horn later on cross-examination stated,

"Q And it was withdrawn at a later time?

"A Well, it was supplemented by other proposals.

. . .

"Q Such as the health and safety committee consideration of entry security?

"A That and the incorporation of the section `E' of the space allocation standard, which referred to the fact that FPS would make individual assessments of the structures and we would abide by their recommendations." (Tr. 439).

By Judge Brown:

"Q And was one of the things that supplemented that . . . Article twenty-three, section four `E' . . .

"A Correct." (Tr. 440).

11. The relevant provisions referred to in Paragraph 10 above are as follows:

ARTICLE 23

HEALTH AND SAFETY

Section 1

. . .

C. The Agency and the AALJ further agree to cooperate in a continuing effort to eliminate [ v60 p692 ] and/or reduce security concerns and otherwise enhance the personal safety of Judges in SSA/OHA hearing offices, satellite offices, and remote site locations.

. . .

Section 2

. . .

D. The Agency will comply with the Physical Protection and Building Security (Section E) provisions contained in the Space Allocation Standard for OHA Field Offices. It is the intent of the parties that Section 2(D) of this Health and Safety Article will apply prospectively to hearing office moves for which an initial Occupancy Agreement (OA) is signed after the date the National Agreement is in effect. This article is subject to the grievance procedure.

. . .

Section 4 - Health and Safety Committee

A. Pursuant to this agreement, there shall be formed a Health and Safety Labor Management Committee.

The
Committee shall meet to exchange information, study, discuss and provide recommendations for

improving
health and safety measures within the OHA. Entry security is the first health and safety issue

the Committee
will address.

B. The Health and Safety Committee shall consist of three (3) Judges appointed by the AALJ President

and
three (3) members, who are not members of the bargaining unit, appointed by the Associate

Commissioner for
Hearings and Appeals. The President of the AALJ and the Associate

Commissioner for Hearings and Appeals
or their designees shall each appoint one of their committee

members to serve as Co-Chairperson of the Health
and Safety Committee.

C. The committee will establish the ground rules under which it will operate. The Committee will meet

quarterly
for no more that (2) days. The proposed agenda items shall be forwarded to the Associate

Commissioner
by the Co-Chairs thirty (30) working days prior to these meetings.

D. OHA will provide a reasonable amount of official time, not counted against the official time bank, for

AALJ participants to prepare for and participate in committee meetings. AALJ participants who

travel to
engage in committee meetings set by agreement will be provided travel and per diem

reimbursement by OHA in
accordance with the Federal Travel Regulations.

E. Establishment of this committee does not constitute a waiver of any of the AALJ's statutory rights to

information,
consultation, or negotiations. The activities of the H & S LMC will not replace the OHA's

responsibility
to provide appropriate notice and the opportunity to bargain over impact and

implementation under Article 2,
Mid Contract Negotiations of this agreement.

F. Establishment of this committee does not alter the authority of the Agency to determine its internal

security
practices." (Res. Exh. 2, Art. 23, pp. 105-108) (Emphasis supplied).

ARTICLE 2

MID CONTRACT NEGOTIATIONS

. . .

Section 4

A. The Parties agree that proposed changes that apply on a nationwide or multi-regional basis shall be

negotiated
at the OHA Central Office level.

B. Proposed changes which shall be implemented in hearing offices in more than one (1) region made

pursuant
to a national or multi-regional initiative that require variation in the changes to meet the needs

of each individual
hearing office shall be negotiated at the regional office level in each affected region.

C. Proposed changes that apply at more than one (1) hearing office within a region shall be negotiated at

the
regional office level.

D. Proposed changes that apply to one (1) hearing office shall be negotiated at the hearing office level.

. . . [ v60
p693 ]

F. The Agency Associate Commissioner, or designee, and the AALJ President or designee, may agree

to conduct
negotiations at any mutually agreeable level other than the level provided above, where it

would further the
Parties' interest in uniform application of Agency initiatives during the term of

this agreement.

G. Both Parties agree that officials of SSA/OHA and the AALJ at levels lower than the national level do

not
have authority to negotiate agreements that conflict with this national agreement." (Res. Exh. 2,

Article 2,
Sec. 4, pp. 6-7).

SPACE ALLOCATION STANDARD FOR OHA FIELD OFFICES MARCH 1998

. . .

E. Physical Protection and Building Security

An intrusion detection system (IDS) is required to provide security to all OHA office space. Its exact design will depend upon the features of each site as explained below. All access points should be protected, and the IDS alarm signal indication should appear in the nearest GSA Law Enforcement Branch or contract alarm monitoring station. The system can be one or a combination of balanced magnetic or mercury door/window switches; metallic window foil; ultrasonic, infrared, or microwave motion detectors; photoelectric sensors; glass breakage sensors, or, capacitance or vibration sensors. GSA shall provide all necessary security measures and services identified by security surveys and crime assessments and requested by OHA for the individual building. The cost of and method of payment for such security measures and services will be identified in the OA. In all OHA Hearing Offices, the following features are minimum requirements:

· All hearing offices will be located above street level.

· All doors leading to OHA space will have dead-bolt locks with minimum 1-inch throws

and have
inaccessible hinge pins or have nonrising fixed-hinge pins. The locks must also be

thumb-turn latches and
not double keyway lock cylinders.

· All doors leading into OHA space will be constructed with solid wood cores or metal

sheathed with
inaccessible hinge pins or non-rising fixed-hinge pins and be equipped with

panic hardware with key override.

· Each hearing office shall be provided with a separate employee entrance providing ingress

without
going through the reception room. The employee entrance door will be equipped

with pushbutton combination-type
locks capable of being opened with one hand for

ingress. Peepholes will be added to
employee and rear entrances for security purposes.

· Adequate external lighting, especially at all entrances, must be provided.

In addition, each judicial bench in the hearing room(s) shall be equipped with a duress alarm (panic button) which will be connected to the hearing office's intrusion detection system (IDS). When activated the duress alarm would signal in the nearest GSA Law Enforcement Branch or contract monitoring station.

In hearing office space located in a multi-tenant building, the following is the minimum requirement:

· OHA space perimeter walls must be solid to the true ceiling (slab). Exception: Where

slab-to-slab
construction is precluded because access to the plenum is required, or in

space located above the ground
level where it would adversely affect the weight of the

floor load, 9-gauge extruded wire mesh, will be
installed from the top of the wall to the

true ceiling.

Any additional protective measures or services needed to ensure reasonable security for employees, visitors, Government property and confidential records shall be determined on a case-by-case basis by the OHA Regional Office (RO), the Office of the SSA Regional Commissioner (RC) and the GSA Law Enforcement Branch. When it is possible to anticipate the security measures and services needed, they shall be included in the space request. (Res. Exh. 1, E, pp. 5-6) (Emphasis supplied).

12. By e-mail to ROCALJ Butler with copies, inter alia, to Ms. Kumpe and Ms. Sims, Judge Brown [ v60
    p694 ] on November 21, 2001, submitted a request pursuant to § 14(b)(4) of the Statute and Article 2, Section D of the National Agreement (Res. Exh. 2, Art. 2, Sec. D.4.) which included:

"4) a copy of any `security surveys and crime assessments' that were prepared by GSA or any other entity concerning the 200 No. Broadway location.

". . . Security surveys and crime assessments obviously relate to the safety and security of bargaining unit members and whether appropriate arrangements are needed to address these issues.

. . . . (G.C. Exh. 13).

ROCALJ Butler responded by letter dated November 28, 2001, and as to 4 [security surveys and crime assessments] he stated,

"4. No documents exist to satisfy this request.

. . . . (G.C. Exh. 14).

By e-mail to ROCALJ Butler, with a copy to Ms. Sims, Judge Brown on February 11, 2002, in part, stated:

"6) I am renewing my November 21, 2001 request for a copy of any "security surveys and crime assessments" that have been prepared by GSA, FPS, SSA/OHA or any other entity for the OHA office on the ninth floor at 200 No. Broadway, St. Louis, Missouri. On November 28, 2001 you wrote that `no documents exist to satisfy this request', however, have any such documents been created since then? If no such documents currently exist, when do you reasonably anticipate their completion?; . . . ." (G.C. Exhs. 17, 26).

ROCALJ Butler responded by letter dated March 8, 2002, but made no response to Judge Brown's Paragraph 6, security surveys, etc. (G.C. Exh. 18).

On August 2, 2002, Judge Brown in a telephone discussion with Ms. Sims reminded her of his data requests of November, 2001, which he had renewed on February 11, 2002, and on August 2, 2002, sent Ms. Sims a copy of his prior data request (Tr. 99). Ms. Sims told Judge Brown it was just an oversight that Respondent had not replied to the request for security surveys and crime assessments for the North Broadway Street location (id.). Nevertheless, Respondent made no further response (Tr. 101-102).

In December, 2001, Judge Brown was told by Federal Protective Service Officer Bruce Frana that he, Frana, expected to have the security survey and crime assessment report completed in January, 2002 (Tr. 97). Later, Mr. Frana told Judge Brown he, ". . . completed it [the report] on January 11th, 2002, and I gave it to Mrs. Kumpe on January 24, of 2002." (Tr. 98).

13. The Union's showing of particularized need for the security surveys and crime assessments for its new location, 200 North Broadway Street, was abbreviated, to be sure (G.C. Exh. 13), but Respondent's only response prior to hearing had been, "No documents exist to satisfy this request" (G.C. Exh. 14), and, after the report was received by Respondent on January 24, 2002, when the Union renewed its request in February, 2002, silence.

At the hearing, the Union fleshed out its showing of particularized need and Respondent asserted that release of the documents was prohibited by law.

The Union had been told by Officer Frana in November or December that, ". . . it was his intention to recommend for our new location that we get a magnetometer and wands and two guards." (Tr. 97). Judge Horn testified that in substitution for magnetometers, etc. the parties agreed upon Article 23, ". . . and the incorporation of the Section `E' of the space allocation standard, which referred to the fact that FPS would make individual assessments of the structures and we would abide by their recommendations." (Tr. 439). Of course, Article 23, as material, is set forth herein above, and specifically provided in part as follows:

Section 1.C. "The Agency and the AALJ further agree to cooperate in a continuing effort to eliminate

and/or
reduce security concerns and otherwise enhance the personal safety of Judges . . . .

Section 2.D. The Agency will comply with the Physical Protection and Building Security (Section E)

provisions
contained in the Space Allocation Standard for OHA Field Offices. . . .

Section 4 - Health and Safety Committee

"A. Pursuant to this agreement, there shall be formed a Health and Safety Labor

Management Committee
. . . Entry security is the first health and safety issue the

Committee will address." . . . ." Res. Exh. 2,
Art. 23, pp. 105-107) (Emphasis

supplied). [ v60
p695 ]

Section E of the Space Allocation Standard for OHA Field Offices specifically provides, in part, that

"E. . . . GSA shall provide all necessary security measures and services identified by security surveys and

crime assessments and requested OHA for the individual building. . . .

. . . ." Res. Exh. 1, E, pp. 5) (Emphasis supplied).

As Judge Horn cogently stated,

". . . it was recognized in section `E' that there would be an assessment made and recommendations would be made and that they would be shared with the union. I just felt that that was the only way (sic) could find out what the FPS was saying about a particular office and what the needs were." (Tr. 438).

Respondent asserted that release of the security survey and crime assessment report would violate the Freedom of Information Act (Tr. 372, 373, 409-410).

The Federal Protective Service conducts the physical security of its property (GSA owned or leased) under its jurisdiction and that would be property that Agencies lease from GSA or for federal buildings. They do surveys essentially of the perimeter; they look at the neighborhood; they look at the building and they make recommendations for enhancements for those offices and they will make mandatory those enhancements that they find necessary based on their surveys (Tr. 404). FPS gives the report to the office manager for the site that they survey or if it is a federal building to the members of the building security committee. The reports, ". . . usually are marked Confidential' orLaw enforcement sensitive' . . . ." (Tr. 406). On cross-examination, Ms. Kagen admitted that when FPS (Part of GSA; now part of Homeland Security) does a survey, it is done in two parts: one is called, "The executive summary", which is short and states recommendations in conclusionary form, and it was this Executive Summary that was given to the Hearing Officer Director (Tr. 425-426). The other is the detailed report which apparently is retained by GSA or FPS, but which is supplied to SSA's Office of Protective Security Services upon request (Tr. 428).

The record shows that the FPS report is not classified, indeed, Respondent in his Brief states it only is, ". . . stamped as `Property of the General Services Administration'. . . . (Respondent's Brief, p. 9). In Social Security Administration, Office of Hearings and Appeals, Macon, Georgia and Association of Administrative Law Judges, IFPTE, AFL-CIO, Case No. AT-CA-02-0648, OALJ 03-56 (September 30, 2003 (hereinafter, "OALJ 03-56")) my colleague, the Honorable Susan E. Jelen, in a case involving a like, contemporaneous FPS report, except for an anticipated move to the Wachovia Building in Macon, Georgia rather than to the St. Louis Place Building in St. Louis, Missouri, noted that Respondent there asserted that the security assessment was, "For Official Use Only" (OALJ 03-56, slip op. 14).

Respondent stated that AFGE was permitted to review physical security surveys that Respondent administered (Tr. 407) but were not given access to FPS surveys (id.); that they, AFGE representatives, had to sign non-disclosure statements; and they were not allowed to copy or remove the surveys from the room (Tr. 407-408). Ms. Kagen stated FPS surveys are restricted to the perimeter of offices while Respondent's physical security surveys, ". . . goes a little bit beyond that and looks at the interior of its offices too and how they're set up to best protect its employees inside the office as well as just from the outside . . . ." (Tr. 400-401).

CONCLUSIONS

A. RESPONDENT VIOLATED § 16(a)(5), (8) and (1) of the Statute by its refusal to furnish, pursuant to § 14(b)(4) of the Statute, any security surveys and crime assessments prepared by GSA, FPS, SSA/OHA or any other entity for the OHA office at 200 NORTH BROADWAY, St. Louis, Missouri.

The data was normally maintained by Respondent in the regular course of business; was reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. And furnishing the data was not, and is not, prohibited by law (§ 14(b)(4), (A), (B), (C)).

Neither the FPS survey nor Respondent's physical security survey is a classified document. The Union's request was first made on November 21, 2001, and the Union noted that, ". . . Security surveys and crime assessments obviously relate to the safety and security of bargaining unit members and whether appropriate arrangements are needed to address these issues. . . ." (G.C. Exh. 13). Respondent's only response was on November 28, 2001, that "No documents exist to satisfy this request." (G.C. Exh. 14). The Union was informed [ v60 p696 ] that the FPS report was delivered to Respondent's St. Louis HOD on January 24, 2002, and on February 21, 2002, the Union renewed its demand for security surveys and crime assessments for the 200 North Broadway Street OHA Office, but Respondent made no reply. On August 2, 2002, the Union again reminded Respondent of its unanswered data request and was told it was an oversight. Nevertheless, Respondent never replied to the data request.

Article 23 of the National Agreement provides, in part,

"Section 1.C. The Agency and the AALJ further agree to cooperate in a continuing effort to eliminate

and/or
reduce security concerns and otherwise enhance the personal safety of

Judges . . . ." (Emphasis supplied).

"Section 2. The Agency will comply with the Physical Protection and Building Security (Section E)

provisions
contained in the Space Allocation Standard for OHA Field Offices. . . ."

(Emphasis supplied).

(Res. Exh. 2, Art. 23, Section 1.C. and 2.D.)

Section E of the Space Allocation Standard specifically provides, in part, that,

"E. . . . GSA shall provide all necessary security measures and services identified by security surveys and

crime assessments and requested by OHA for the individual building. . . . (Emphasis supplied)

(Res. Exh. 1,
p. 5).

As Judge Horn testified,

". . . the way we dealt with that [existing offices that were being relocated or would be relocated after the contract became effective] was to recognize in the contract that as part of any relocation, the Federal Protective Service would go out to sites and evaluate the threat risk each office presented . . .

. . .

". . . we believed that they [security surveys] would be turned over to us because it was recognized in section `E' that there would be an assessment made and recommendations would be made and that they would be shared with the union. I just felt that that was the only way (sic) ould find out what the FPS was saying about a particular office and what the needs were." (Tr. 437-438).

Article 23, Section 2.D. concluded, ". . . This article is subject to the grievance procedure." (Res. Exh. 2, Art. 23, Sec. 2.D., p. 106) (Emphasis supplied). Plainly, the Union's access to the underlying surveys and assessments are essential for the Union to determine whether Respondent has complied with Section E so as to be able to file a grievance.

The request did not involve personnel records; the Privacy Act of 1974, 5 U.S.C. § 552a, does not apply; and United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1994) is not applicable. Nor was this a request under the Freedom of Information Act, 5 U.S.C. 552; and Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749 (1989) is not applicable.

The request for data here was pursuant to § 14(b)(4) of the Statute and the applicable limitation is,

". . . to the extent not prohibited by law. . . ." (id.).

Section 6 of the Statute does not prohibit the disclosure of information. United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas, 57 FLRA 808, 815 (2002); NLRB Union, Local 6 v. FLRA, 842 F.2d 483, 486 (D.C. Cir. 1988). The record does not show that Respondent made, or had made, a physical security survey of the OHA Office at 200 North Broadway, although Ms. Kagen stated that Respondent's physical security surveys go a little beyond the FPS survey and looks at the interior of its offices which implies that two surveys are made in each instance. Respondent never asserted any defense to its production; and admitted it had furnished its physical security surveys to AFGE.

FPS delivered a copy of the Executive Summary of its security survey and crime assessments to Respondent's St. Louis HOD and the full report, if not given to Respondent, was available to Respondent on request. By delivering custody of the report to Respondent, FPS relinquished to Respondent the determination of who could have access to it. Respondent states that the only marking on the survey was "Property of the General Services Administration" (Respondent's Brief, p. 16). Accordingly, FPS placed no restriction on release of the document by Respondent. But even where FPS marks a document, "For Official Use Only" it does not prohibit release of the information. [n2]

[ v60
p697 ]

The Union needs the FPS and Respondent's physical security surveys to know whether Respondent has complied with Article 23 of the parties Agreement and with Section E of the Space Allocation Standard, incorporated thereby, and when to file a grievance for non-compliance.

B. Respondent violated § 16(a)(5) and (1) of the Statute by refusing

to bargain in good faith on the floor plan for the OHA Office at

200 North Broadway.

On August 8, 2001, Respondent notified the Union that the St. Louis office was relocating to 200 North Broadway and attached a proposed floor plan (G.C. Exh. 34). On August 10, 2001, the Union requested I&I bargaining; Respondent set negotiations for September 10, 2001; and the Union submitted its initial proposals on September 11, including its proposed floor plan (G.C. Exh. 35). The parties met on September 10, 2001, and Respondent told the Union it couldn't enter into any agreement that would change Respondent's proposed floor plan because it had given the floor plan to AFGE & NTEU. The Union offered two ways to address this problem: (a) have a bargaining session with all three unions to negotiate about the floor plan; or (b) submit the Union's floor plan to NTEU & AFGE as its (Respondent's) amended floor plan. If there were no objection, the floor plan would be settled; and if there were objections then further negotiations would be required. Respondent refused the Union's suggestion. The World Trade Center and Pentagon disasters caused the September 11 meeting to be cut short. There were no further meetings and on September 28, 2001, Respondent sent the Union its final bargaining proposal which was its original floor plan without change (the Union's other bargaining demands -security, parking and office furnishings were rejected as already in negotiation at the national level).

The parties met with FMCS Mediator Eugene Brawley on December 3 and 4, 2001, in Kansas City, Missouri. At the mediator's suggestion, the parties did reach agreement on what Judge Brown called the, ". . . mechanical issues related to the move . . . ." Although they reached apparent agreement on the substance of a MOU, it was not finally agreed to until August 7, 2002. On the question of floor plan, Respondent refused to give any consideration to the Union's floor plan and HOCALJ Riley said, ". . . she didn't want all the white male judges sitting together down at the same end of the building." (Tr. 76), to which the Union responded, ". . . you can't do that. That's illegal. . . ." (id.). Respondent insisted that its floor plan (G.C. Exh. 34) improved "work flow" but offered no explanation. Late on the second day of mediation, the mediator informed the Union that Respondent had told him it had already reached agreement with AFGE and NTEU on the floor plan, which Respondent confirmed.

Ms. Sims, Respondent's Chief Negotiator, did not recall the date that NTEU and AFGE signed off on the floor plan. HOD Kumpe said the exchange of paper, ". . . we didn't have face to face I' andI' bargaining with either, [NTEU or AFGE], it was more an exchange of paper (Tr. 313) and it began in the summer of 2001. Apparently, agreement was reached with AFGE and NTEU even before negotiations began with the Union on September 10, 2001; but Respondent did not disclose its agreement with AFGE and NTEU on the floor plan until late on the second day of mediation. Respondent never considered the Union's floor plan and never made any proposal to change its floor plan except to make a cynical offer on December 4, 2001, to exchange a judge's office with a Group Supervisor's office (G.C. Exh. 34; Tr. 174) which offer was in total denigration of the Union's goal of promoting collegiality, discussion of legal and medical issues necessary to decision making and establishing proximity to assigned clerks. Respondent withheld disclosure of its agreement with NTEU and AFGE on the floor plan, although it did tell the Union it had given its floor plan to AFGE and NTEU, and falsely pretended it would negotiate the floor plan but failed and refused to do so. Indeed, the record shows that Respondent from the beginning had no intention of negotiating the floor plan with the Union and that it was determined to implement its floor plan to which the NTEU and AFGE had already agreed. [ v60 p698 ]

C. Respondent violated § 16(a)(5) and (1) of the Statute by refusing

to bargain over reservation of parking slots provided by the

building lease for purchase by ALJ.

The Union in December, 2001, orally proposed that, because the lease provided that for stated amounts of space leased, the building would make available certain stated number of parking slots which the tenant could purchase, Respondent seek these allocated parking slots for judges who wished to pay to park there. Judge Brown stated, both credibly and without contradiction, that HOD Kumpe, one of Respondent's negotiators, responded, "I'm not going to do that because then if I did that for all the judges, then there might not be any spaces left for any other bargaining unit members that might want the same thing." (Tr. 199). By refusing to consider the Union's proposal, bargaining on this issue was terminated.

Precisely what the lease provided was not shown, but based on Judge Brown's representation, which Respondent did not deny, based on the space leased, Respondent, or GSA, was entitled to purchase about 15 parking slots. For whatever number of parking slots were available based on space leased, there does not appear any reason to negotiate anything with the lessor. If Respondent, or GSA, could "claim" the slots provided by the lease, the Union certainly has a right to insist that it do so and to seek them for its members. United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Houston District, 25 FLRA 843 (1987). I find nothing in the issue submitted to FSIP, nor in FSIP's Decision and Order of October 24, 2002 (G.C. Exh. 32), or in Section F of the Space Allocation Standard (Res. Exh. 1) which would bar local negotiation of an issue not presented for negotiation at the national level and not covered by Respondent and GSA's Space Allocation Standard. Indeed, the issue before the FSIP was, "distribution of free parking" and Section F likewise treats only "free parking . . . when the lessor furnishes parking for building tenants which is included as part of the lease. This occurs when tenants are offered free parking spaces based on the amount of space leased." (Res. Exh. 1, p. 7). As noted, the Union's proposal did not concern free parking. Local negotiation is required, pursuant to Article 2, Section 4.D. of the Parties National Agreement (Res. Exh. 2, Art. 2, Sec. 4.D., p. 7), because the provision of the lease with respect to this issue would be a wholly local matter and would apply to a single hearing office.

D. Respondent did not violate either § 16(a)(5) or (1) of the Statute

by refusing to negotiate on entry security.

Entry security was an issue in national negotiations and AALJ submitted a demand for magnetometers, wands, x-ray equipment and treatment of OHA offices as Class 4 for security rather than Class 2. The parties negotiated and ultimately agreed upon Article 23, Health and Safety, and AALJ accepted, in particular, Section 2.D. (Res. Exh. 2, Art. 23, Sec. 2.D., p. 106) and Section 4 - Health and Safety Committee. (Res. Exh. 2, Art. 23, Sec. 4, pp. 107-108) in lieu of its proposals on entry security. The concluding sentence of Section 4.A. reads: "Entry security is the first health and safety issue the Committee will address." (id. at 107).

The Union obtained an excess magnetometer and wand and installed the magnetometer which the guards warmly welcomed but, two days later, Respondent removed it and declined to discuss it with the Union. While the Union's ploy was enterprising, it was unauthorized and all matters of entry security are subject to, and covered by, Article 23 of the National Agreement.

E. Respondent did not violate either § 16(a)(5) or (1) of the Statute

by refusing to bargain on matters, including private office

furnishings, parking, ALJ office space and OHA hearing room

space, contained in the Facilities and Services article.

All of these issues applied nationwide, were negotiated at the national level and, when the parties reached an impass, were resolved by the Decision and Order of FSIP on October 24, 2002 (G.C. Exh. 32). Section 4, subsection G of Article 2, specifically provides,

"G. Both Parties agree that officials of SSA/OHA and the AALJ at levels lower than the national level do not have authority to negotiate agreements that conflict with this national agreement." (Res. Exh. 2, Art. 2, Sec. 4.G., p. 7).

Because all issues covered by the Facilities and Services article, which included ALJ office size, OHA hearing room size, ALJ office furnishings and free parking, were negotiated at the national level and, ultimately, were resolved by FSIP, Respondent had no obligation to bargain on any of these issues with the Union.

Having found that Respondent failed and refused to comply with § 14(b)(4) of the Statute and violated [ v60 p699 ] §§ 16(a)(5), (8) and (1) of the Statute, it is recommended that the Authority adopt the following:

ORDER [n3]

Pursuant to § 2423.41(c) of the Rules and Regulations of the Authority, 5 C.F.R. § 2423.41(c), and § 18 of the Federal Services Labor Management Statute, 5 U.S.C. § 7118, the Social Security Administration, Baltimore, Maryland and Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri, and St. Louis, Missouri, hereinafter, "Respondent", shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the Association of Administrative Law Judges, IFPTE, AFL-CIO, (hereinafter, "Union") the exclusive representative of our Administrative Law Judges, with a copy the FPS, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by Respondent's Office of Protective Security Services, or by its contractors.

(b) Refusing to bargain in good faith with the Union on the office floor plan for the OHA office at 200 North Broadway.

(c) Refusing to bargain in good faith with the Union over reservation of parking slots provided by the building lease for purchase by ALJ's.

(d) Implementing changes in conditions of employment of bargaining unit employees prior to the lawful completion of bargaining.

(e) Refusing to provide the Union information requested under § 14(b)(4) of the Statute.

(f) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Statute:

(a) Furnish forthwith to the Union a copy of the FPS, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway prepared by Respondent's Office of Protective Security Services, or by its contractors.

(b) Upon request of the Union, bargain in good faith on the floor plan for the OHA office at 200 North Broadway and implement all negotiated changes.

(c) Upon request of the Union, bargain in good faith over reservation of parking slots provided by the building lease for purchase by ALJs.

(d) Post at all facilities in the Kansas City Region, including its facilities in St. Louis, Missouri, where bargaining unit employees are located, 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 Regional Chief Administrative Law Judge, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to ALJs are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41(e) notify the Regional Director of the Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply.

________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: January 30, 2004

Washington, DC [ v60
p700 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri, and St. Louis, Missouri, have violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish the Association of Administrative Law Judges, IFPTE, AFL-CIO, (hereinafter, "Union") the exclusive representative of our Administrative Law Judges, with a copy the FPS, now Homeland Security, Physical Building Assessment Report for the 200 North Broadway, St. Louis, Missouri location and a copy of the physical security report of the OHA office at 200 North Broadway, St. Louis, Missouri, prepared by Respondent's Office of Protective Security Services, or by its contractors.

WE WILL NOT refuse to bargain in good faith with the Union on the office floor plan for the OHA office at 200 North Broadway.

WE WILL NOT refuse to bargain in good faith with the Union over reservation of parking slots provided by the building lease for purchase by ALJ's.

WE WILL NOT implement changes in conditions of employments of bargaining unit employees prior to the lawful completion of bargaining.

WE WILL NOT refuse to provide the Union information requested under Section 7114(b)(4) of the Statute.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request of the Union, bargain in good faith on the floor plan for the OHA office at 200 North Broadway and WE WILL implement all negotiated changes.

WE WILL, upon request of the Union, bargain in good faith over reservation of parking slots provided by the building lease for purchase by ALJs.

Social Security Administration

DATE: __ BY: ___

Kansas City

Chief Administrative Law Judge

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, Denver Region, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: 303-844-5226.

File 1: Authority's Decision in 60 FLRA No. 132

File 2: ALJ's Decision

Footnote # 1 for
60
FLRA No. 132

• ALJ's Decision

For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial, "71", of the statutory reference, i.e., Section 7116(a)(5) will be referred to, simply, as, "§ 16(a)(5)".

Footnote # 2 for
60
FLRA No. 132

• ALJ's Decision

Although not introduced in this proceeding, the FPS Policy Handbook was an exhibit in Case No. AT-CA-02-0648, OALJ 03- 56, supra, as R. Exh. 1, Tab B. As Judge Jelen set forth in her decision the FPS Policy Handbook at p. 49 states as follows:

"b. "For Official Use Only" or "Official Use Only" . . . are used to identify . . .

"(3) Information pertaining to existing security strengths and vulnerabilities, or planned modifications, that, if released, could negatively impact upon the security posture of the facility.

"c. . . . Dissemination of information contained in the assessment report is limited to those persons whose official duties require knowledge or use. Federal employees who are provided "For Official Use Only" documents must protect the information and follow instructions that appear on the documents." (OALJ 03-56, pp. 15-16).

Members of the Union are, of course, federal employees and their official duties under the Statute require the knowledge and use of the assessments. To be sure, they must protect the information and comply with instructions.

Footnote # 3 for
60
FLRA No. 132

• ALJ's Decision

General Counsel requested nationwide posting. I have considered her arguments but do not find any convincing reason for nationwide posting. The issues involved grew out of local bargaining. The Commissioner of Social Security was not involved and Regional posting, because of the direct involvement of the Region, will effectively show employees that Respondent acknowledges its obligations under the Statute. I also note that local posting was ordered in OALJ 03-56.