[ v09 p48 ]
09:0048(9)CA
The decision of the Authority follows:
9 FLRA No. 9
OFFICE OF PROGRAM OPERATIONS
FIELD OPERATIONS
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF
SOCIAL SECURITY DISTRICT OFFICE
LOCALS, SAN FRANCISCO REGION
Charging Party
Case No. 8-CA-390
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED. THEREAFTER, THE CHARGING PARTY (AFGE) AND THE GENERAL
COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS TO THE EXTENT
CONSISTENT HEREWITH.
IN FEBRUARY OR MARCH OF 1979, THE RESPONDENT'S RIVERSIDE DISTRICT
AUTHORIZED THE HEMET BRANCH OFFICE TO ALLOW ITS PART-TIME EMPLOYEES TO
WORK ADDITIONAL HOURS IN ORDER TO ALLEVIATE AN EXISTING BACKLOG. THE
UNION REPRESENTATIVE IN THE RIVERSIDE DISTRICT HAD BEEN INFORMED OF THE
DECISION AND ITS TEMPORARY NATURE BEFORE THE PRACTICE WAS EFFECTED IN
THE LATE SPRING AND SUMMER OF 1979; SUCH PRACTICE CONTINUED UNTIL
DECEMBER. ON DECEMBER 11, 1979, THE HEMET BRANCH MANAGER APPROACHED TWO
PART-TIME EMPLOYEES, INDIVIDUALLY, AT THEIR DESKS, AND, IN BRIEF
CONVERSATIONS, INFORMED THEM THAT THE PRACTICE WAS BEING TERMINATED AND
THAT THEY WERE TO RESUME THEIR NORMAL TOURS OF DUTY (35 HOURS PER WEEK).
ON JANUARY 11, 1980, A MEETING TOOK PLACE AT WHICH WERE PRESENT THE TWO
PART-TIME EMPLOYEES, THE ASSISTANT DISTRICT MANAGER, THE HEMET BRANCH
MANAGER AND A SUPERVISOR FROM THE HEMET BRANCH OFFICE. THE MEETING WAS
INITIATED BY THE TWO EMPLOYEES WHO APPROACHED THE ASSISTANT DISTRICT
MANAGER WHILE HE WAS IN HEMET ON OTHER BUSINESS. THE CESSATION OF THE
PRACTICE OF ALLOWING THE EMPLOYEES TO WORK EXTENDED HOURS, THE
POSSIBILITY OF THE TWO EMPLOYEES BEING CONVERTED TO FULL-TIME POSITIONS,
AND THE CARPOOL PROBLEMS OF ONE OF THE EMPLOYEES WERE DISCUSSED.
IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS THAT, AS AFGE WAS
GIVEN ADEQUATE ADVANCE NOTICE OF THE PRACTICE OF TEMPORARILY ALLOWING
PART-TIME EMPLOYEES TO WORK ADDITIONAL HOURS TO ALLEVIATE THE BACKLOG IN
THE HEMET OFFICE, AND DID NOT REQUEST NEGOTIATIONS REGARDING THE
TEMPORARY PRACTICE, THE RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1)
AND (5) OF THE STATUTE BY ITS ACTIONS WITH RESPECT TO THE TEMPORARY
PRACTICE. /1/
AS FOR THE TWO MEETINGS WHICH OCCURRED ON DECEMBER 11, 1979, THE
AUTHORITY FINDS THAT, IN VIEW OF THE FACT THAT THEY WERE NOT SCHEDULED
IN ADVANCE, WERE BRIEF DISCUSSIONS AT THE DESKS OF THE INDIVIDUAL
EMPLOYEES, AND INVOLVED ONLY THE HEMET BRANCH MANAGER AND ONE EMPLOYEE,
THEY WERE NOT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
7114(A)(2)(A) /2/ OF THE STATUTE. /3/ SIMILARLY, THE AUTHORITY FINDS
THAT THE MEETING WHICH OCCURRED ON JANUARY 11, 1980, WAS NOT A FORMAL
DISCUSSION. THUS, AS PREVIOUSLY STATED, THE RECORD SUPPORTS THE JUDGE'S
CONCLUSION THAT THE MEETING IN QUESTION OCCURRED WHEN THE TWO EMPLOYEES
APPROACHED THE ASSISTANT DISTRICT MANAGER WHILE HE WAS IN HEMET ON OTHER
BUSINESS AND NOT AS A CONSEQUENCE OF ANY SPECIFIC ADVANCE ARRANGEMENTS.
MOREOVER, WHILE TWO OTHER SUPERVISORS WERE PRESENT AT THE MEETING, THE
RECORD ESTABLISHES THAT THEY WERE NOT PRESENT FOR THE PURPOSE OF
PARTICIPATING IN THE MEETING WITH THE TWO EMPLOYEES BUT HAPPENED TO BE
IN A MEETING WITH THE ASSISTANT DISTRICT MANAGER WHEN THE TWO EMPLOYEES
APPEARED AND SOUGHT TO MEET WITH HIM. UNDER THE CIRCUMSTANCES, THE
AUTHORITY FINDS THAT THIS RELATIVELY IMPROMPTU MEETING, HELD FOR THE
PURPOSE OF DISCUSSING THE CONCERNS OF TWO EMPLOYEES, WAS NOT A "FORMAL
DISCUSSION" WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION
7114(A)(2)(A) OF THE STATUTE. /4/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-390 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 11, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
E. A. JONES
JOSEPH SWERDZEWSKI, ESQS.
FOR THE GENERAL COUNSEL
WILSON SCHUERHOLZ
FOR THE RESPONDENT
JEFFERY H. DASTEEL
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
CASE NO.: 8-CA-390
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
SEQ.
PURSUANT TO A CHARGE ORIGINALLY FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT
OFFICE LOCALS, SAN FRANCISCO REGION, HEREIN CALLED THE UNION, ON MARCH
3, 1980, AND AMENDED ON MAY 27, 1980, A COMPLAINT AND NOTICE OF HEARING
ISSUED ON MAY 28, 1980 ALLEGING THAT THE OFFICE OF PROGRAM OPERATIONS,
FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION,
HEREIN CALLED RESPONDENT, HAD ENGAGED IN, AND IS ENGAGING IN, UNFAIR
LABOR PRACTICES WITHIN THE MEANING OF SECTION 7116(A)(1), (5) AND (8) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, HEREIN CALLED
THE STATUTE, BY UNILATERALLY CHANGED THE WORK HOURS OF PERMANENT
PART-TIME BARGAINING UNIT EMPLOYEES AT ITS HEMET, CALIFORNIA BRANCH
WITHOUT NOTIFYING AND AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN OVER
THE IMPACT AND IMPLEMENTATION OF THE CHANGE; AND, BY CONDUCTING
MEETINGS ON OR ABOUT DECEMBER 11, 1979 AND JANUARY 1980 AT ITS HEMET,
CALIFORNIA OFFICE WITH ONE OR MORE UNIT EMPLOYEES CONCERNING A
GRIEVANCE, PERSONNEL POLICY OR PRACTICE, OR OTHER GENERAL CONDITIONS OF
EMPLOYMENT WITHOUT THE PRESENCE OF A UNION REPRESENTATIVE AND WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO BE PRESENT.
RESPONDENT FILED AN ANSWER DENYING THE COMMISSION OF ANY UNFAIR LABOR
PRACTICES.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 20, 1980, IN
HEMET, CALIFORNIA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE ANY
EVIDENCE BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS
WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, RESPONDENT AND THE UNION HAVE BEEN
PARTIES TO A COLLECTIVE-BARGAINING AGREEMENT COVERING THE EMPLOYEES
INVOLVED IN THIS MATTER.
AROUND FEBRUARY OR MARCH 1979 RESPONDENT'S HEMET BRANCH MANAGER ELVIN
LEONARD PROPOSED TO RIVERSIDE DISTRICT MANAGER ROBERT MCCLURE THAT THE
HEMET OFFICE PERMANENT PART-TIME EMPLOYEES BE AUTHORIZED TO WORK HOURS
IN EXCESS OF THEIR AUTHORIZED WEEKLY TOURS. DISTRICT MANAGER MCCLURE
APPROVED THE AUTHORIZATION.
PRIOR TO THAT TIME PERMANENT PART-TIME EMPLOYEES JACQUELYN MALLORY
WORKED 35 HOURS PER WEEK, HER TOUR OF DUTY BEING MONDAY THROUGH FRIDAY,
8:30 TO 3:30. SIMILARLY, PART-TIME EMPLOYEE NORINE STARK WORKED 35
HOURS PER WEEK WITH HER HOURS BEING 8:30 TO 3:30. PART-TIME EMPLOYEE
MERRILL MEYER, WHO ONLY WORKED FOR RESPONDENT FOR A SHORT TIME DURING
DECEMBER 1979 WORKED A 32 HOUR WEEK.
AS A RESULT OF MCCLURE'S AUTHORIZATION JACQUELYN MALLORY REGULARLY
WORKED A FORTY HOUR WEEK, EIGHT HOURS PER DAY FROM MAY 1979 UNTIL
DECEMBER 11, 1979. NORINE STARK WORKED FORTY HOURS PER WEEK /5/ FOR
THREE WEEKS IN JUNE 1979 WHEN SHE VOLUNTARILY LEFT THE SHIFT AND AGAIN
FROM LATE AUGUST UNTIL THE SHIFT WAS DISCONTINUED IN DECEMBER 1979.
MERILL MEYER HIRED IN LATE NOVEMBER 1979 WORKED IN EXCESS OF HIS TOUR
FOR ONLY ONE WEEK IN DECEMBER. IN ORDER TO RECEIVE PAY FOR THE EXTRA
HOUR WORKED EACH DAY, ALL THREE EMPLOYEES WERE REQUIRED TO SIGN DAILY ON
AN OVERTIME SHEET AT THEIR SUPERVISORS' DESK. IT IS UNDISPUTED THAT THE
WORK WAS VOLUNTARY AND FOR THE DURATION OF THE BACKLOG IN HEMET.
ON DECEMBER 11, 1979, BRANCH MANAGER LEONARD MET WITH MALLORY AT HER
DESK AND INFORMED HER THAT SHE WOULD NO LONGER BE ABLE TO WORK FORTY
HOURS PER WEEK. WHEN QUESTIONED BY MALLORY, LEONARD EXPLAINED THAT THE
DISTRICT OFFICE HAD ORDERED THE PRACTICE TO CEASE. ON THE SAME DAY,
LEONARD MET WITH STARK, AT HER DESK AND EXPLAINED THAT SHE WOULD HAVE TO
GO BACK TO WORKING THIRTY-FIVE HOURS PER WEEK. LEONARD ALSO MET WITH
MEYER ON THAT DAY AND TOLD HIM THAT HE COULD NO LONGER WORK IN EXCESS OF
HIS THIRTY-TWO HOUR APPOINTMENT. EACH MEETING TOOK ONLY A MINUTE OR
TWO. THE RECORD DISCLOSED THAT NO UNION REPRESENTATIVE WAS PRESENT
DURING THE DISCUSSION WITH ANY OF THE THREE EMPLOYEES. ACCORDING TO
LEONARD, ASSISTANT DISTRICT MANAGER BURDEN TOLD HIM THAT THE HEMET
WORKLOAD COULD NO LONGER JUSTIFY THE EXTRA HOURS AND THAT THEY SHOULD BE
DISCONTINUED IMMEDIATELY.
SINCE JANUARY 1979 THE UNION'S REPRESENTATIVE FOR THE RIVERSIDE
DISTRICT, WHICH INCLUDES THE HEMET BRANCH OFFICE, HAS BEEN CAROL ADAMS,
A SERVICE REPRESENTATIVE WORKING IN THE RIVERSIDE DISTRICT OFFICE.
THERE IS NO PERMANENT UNION REPRESENTATIVE IN THE HEMET OFFICE. ADAMS'
POINT OF CONTACT WITH MANAGEMENT WAS DISTRICT MANAGER ROBERT MCCLURE
AND, IN HIS ABSENCE, ASSISTANT DIRECTOR MANAGER KEN BURDEN. NEITHER
ADAMS NOR ANY OTHER UNION REPRESENTATIVE WAS NOTIFIED IN ADVANCE ABOUT
THE DECEMBER 11, 1979, CHANGE IN THE TOURS OF DUTY OF THE HEMET
EMPLOYEES.
SHORTLY AFTER THE DISCUSSION OF DECEMBER 11, 1979, STARK CONTACTED
UNION REPRESENTATIVE ADAMS AND INFORMED HER OF THE CHANGE IN WORK HOURS
THAT HAD OCCURRED. THEY DISCUSSED WHAT COULD BE DONE ABOUT THE CHANGE
AND WHETHER THE HOURS OR WORK PER DAY COULD BE ADJUSTED TO ACCOMMODATE
STARK'S CARPOOLING NEEDS. STARK PROPOSED A DIFFERENT SCHEDULE OF FOUR
DAYS PER WEEK. ADAMS SUGGESTED THAT UNION REPRESENTATIVE NANCY FINNERAN
IN SAN DIEGO SHOULD BE CONTACTED. SUBSEQUENTLY, FINNERAN AND STARK
DISCUSSED THE POSSIBILITY OF FILING AN UNFAIR LABOR PRACTICE CHARGE.
AFTER DECEMBER 11, BOTH MALLORY AND STARK SOUGHT A FURTHER
EXPLANATION OF THE DECEMBER 11, 1979, CHANGE FROM LEONARD BUT WERE
UNABLE TO OBTAIN A SATISFACTORY RESPONSE FROM HIM. THEY ALSO DISCUSSED
WITH LEONARD THE CARPOOL SITUATION OF STARK. AT SOME POINT, THE TWO
JOINTLY REQUESTED LEONARD TO ARRANGE A MEETING WITH ASSISTANT DISTRICT
MANAGER BURDEN.
MCCLURE TESTIFIED THAT HEMET'S BACKLOG WAS PRETTY WELL UNDER CONTROL
IN OCTOBER OR NOVEMBER 1979 AND THAT THERE WAS NO FURTHER NEED TO GRANT
ADDITIONAL TIME TO PART-TIMERS, PARTICULARLY IF THE DISTRICT WAS TO GET
A HIGHER STAFF ALLOTMENT FROM REGION. /6/ MCCLURE ALSO STATES THAT A
PRACTICE EXISTED OF USING PART-TIMERS TO CLEAR UP BACKLOGS IN THE
RIVERSIDE DISTRICT. WHILE HE STATED THAT HE HAD DISCUSSED THE MATTER
WITH THE UNION PRIOR TO AUTHORIZING THE USE OF PART-TIMERS HE COULD NOT
RECALL WITH WHOM HE HAD DISCUSSED SUCH USE OF PART-TIME EMPLOYEES.
AT ONE POINT, MCCLURE TESTIFIED THAT HE HAD DISCUSSED BOTH THE
AUTHORIZATION AND ITS CESSATION OF THE USE OF PART-TIMERS WITH ADAMS.
MCCLURE ALSO CONTENDS THAT IT WAS MADE CLEAR THAT THE PRACTICE WAS
TEMPORARY TO END WHEN HEMET'S BACKLOG REACHED A REASONABLE SIZE.
REGARDING THE AUTHORIZATION BURDEN INDICATED THAT ADAMS "WAS CALLED TO
THE DOOR AND KIND OF PARTICIPATED FOR A VERY SHORT PERIOD IN THE
DISCUSSION." AT ANOTHER POINT MCCLURE TESTIFIED THAT HE HAD INFORMED A
UNION REPRESENTATIVE OF THE DECISION TO USE PART-TIMERS IN THE HEMET
OFFICE SOMETIME IN FEBRUARY OR MARCH, BUT HE WAS NOT CERTAIN THAT ADAMS
WAS THAT UNION REPRESENTATIVE. THE RECORD SHOWS THAT ADAMS WAS
APPOINTED TO THE UNION REPRESENTATIVE POSITION IN JANUARY 1979 AND WOULD
HAVE BEEN THE REPRESENTATIVE WHO SHOULD HAVE BEEN INFORMED. MCCLURE
ALSO TESTIFIED THAT TWICE, ONCE IN OCTOBER AND AGAIN IN NOVEMBER HE
DISCUSSED DISCONTINUANCE OF THE EXPANDED WORK SHIFT WITH ADAMS.
ON JANUARY 11, 1980, ASSISTANT DISTRICT MANAGER KEN BURDEN MET WITH
STARK AND MALLORY FOR ABOUT AN HOUR AT THE HEMET BRANCH OFFICE. BURDEN
INSISTS THAT THE MEETING WAS SPONTANEOUS ALTHOUGH HE ALSO TESTIFIED THAT
UNION REPRESENTATIVE ADAMS HAD ASKED HIM TO TALK WITH THE EMPLOYEES.
ACCORDING TO MALLORY, AFTER NOT HAVING SATISFACTORY ANSWERS FROM LEONARD
CONCERNING STARK'S CARPOOL PROBLEM, "WE CALLED HIM (BURDEN) AND ASKED IF
HE WOULD COME DOWN TO HEMET AND TALK TO US." ALSO PRESENT AT THE MEETING
WERE LEONARD AND OPERATIONS SUPERVISOR MAGGIE GULU.
THERE IS NO DISPUTE AS TO WHAT WAS DISCUSSED AT THE MEETING. IN
RESPONSE TO QUESTIONS FROM STARK AND MALLORY, BURDEN EXPLAINED WHY THEY
COULD NO LONGER WORK FORTY HOURS PER WEEK. BURDEN ALSO EXPLAINED THAT
IT WAS IMPERMISSIBLE FOR PART-TIME EMPLOYEES TO WORK IN EXCESS OF THEIR
TOUR OF DUTY IF SO WORKING DENIED OVERTIME OPPORTUNITIES FOR FULL-TIME
EMPLOYEES. STARK AND MALLORY EXPRESSED CONCERN OVER STARK'S CARPOOL
SITUATION. THEY PROPOSED A WORK SCHEDULE OF EIGHT HOURS PER DAY, FOUR
DAYS PER WEEK, WITH THREE HOURS ON A FIFTH DAY TO PERMIT CARPOOLING WITH
FULL-TIME EMPLOYEES ON THE FOUR EIGHT-HOUR DAYS. BURDEN REJECTED THE
PROPOSAL AS NOT VIABLE. HE EXPLAINED TO MALLORY AND STARK THAT THEY
WERE IN CRITICAL POSITIONS IN INTERVIEWING THE PUBLIC AND WERE THEREFORE
NEEDED DURING PEAK HOURS, FIVE DAYS PER WEEK. BOTH MALLORY AND STARK
INQUIRED OF BURDEN WHETHER THEY COULD BE CONVERTED TO FULL-TIME
EMPLOYEES. BURDEN EXPLAINED STAFFING REGULATIONS AND PERSONNEL
CEILINGS. HE INDICATED THAT IF FULL-TIME POSITIONS BECAME AVAILABLE AND
THEIR SUPERVISOR RECOMMENDED THAT THEY RECEIVE FULL-TIME POSITIONS, HE
WOULD SURELY CONSIDER STARK AND MALLORY AT THAT TIME. THERE WAS NO
UNION REPRESENTATIVE PRESENT. NOR WAS THE UNION ADVISED IN ADVANCE THAT
THE MEETING WOULD TAKE PLACE IN HEMET.
SHORTLY THEREAFTER ON FEBRUARY 11, 1980 BOTH STARK AND MALLORY WERE
MADE FULL-TIME CLAIMS REPRESENTATIVES.
DISCUSSION AND CONCLUSIONS
A. UNILATERAL CHANGE
THE DECISION TO CHANGE CERTAIN MATTERS INCLUDING, AMONG OTHER THINGS,
ITS MISSION, NUMBER OF EMPLOYEES AND TOURS OF DUTY RESERVED TO
MANAGEMENT UNDER SECTION 7106 OF THE STATUTE. IN ASSESSING THE WORK
REQUIRED TO ACCOMPLISH ITS MISSION AN AGENCY MUST MAKE DETERMINATIONS
BASED UPON ITS RESOURCES. WHILE AN AGENCY MANAGEMENT MAY ELECT UNDER
THE STATUTE TO BARGAIN ABOUT A DECISION IN THE RESERVED AREAS IT IS NOT
REQUIRED TO NEGOTIATE ABOUT THAT DECISION UNLESS IT ELECTS TO DO SO. IN
THE INSTANT MATTER, THERE IS NO CONTENTION THAT RESPONDENT CONSISTENT
WITH ITS MISSION IN ASSIGNING WORK AND ESTABLISHING PRIORITIES BASED
UPON ITS RESOURCES DID NOT HAVE A RESERVED RIGHT UNDER SECTION 7106 TO
ESTABLISH A TEMPORARY EXTRA HOUR PER DAY SHIFT FOR CERTAIN PART-TIME
EMPLOYEES IN ITS HEMET OFFICE. ASIDE FROM THE FACT THAT RESPONDENT DOES
HAVE A RIGHT TO MAKE THE DECISION ON SUCH USAGE OF PERSONNEL, IT IS OF
COURSE REQUIRED TO BARGAIN ABOUT THE IMPACT AND IMPLEMENTATION OF ITS
DECISION IN A TIMELY FASHION. HERE RESPONDENT DECIDED IN LATE FEBRUARY
OR EARLY MARCH 1979 TO USE THE PART-TIME PERSONNEL IN THE HEMET OFFICE
AN EXTRA HOUR PER DAY, IN EFFECT WORKING THEM AS FULL-TIME EMPLOYEES.
RESPONDENT ASSERTS THAT THERE WAS AN ESTABLISHED PRACTICE OF USING
PART-TIME EMPLOYEES ON A FULL-TIME BASIS IN THE RIVERSIDE DISTRICT AND
THAT THE UNION WAS AWARE OF AND ACQUIESED IN SUCH PRACTICE. I REJECT
THIS CONTENTION, SINCE THERE IS NO RECORD EVIDENCE, OTHER THAN THE
UNCORROBORATED TESTIMONY OF DISTRICT MANAGER MCCLURE THAT SUCH A
PRACTICE EXISTED IN THE RIVERSIDE DISTRICT, AND FURTHERMORE, THERE IS NO
RECORD EVIDENCE THAT SUCH A PRACTICE EVER EXISTED IN THE HEMET OFFICE.
THEREFORE, IT IS CONCLUDED THAT THE RECORD HEREIN DOES NOT SUPPORT A
FINDING THAT SUCH PRACTICE EXISTED IN THE HEMET OFFICE. ASSUMING, THAT
SUCH A PRACTICE DID EXIST IN HEMET, IT MAY WELL BE THAT RESPONDENT HAD
AN OBLIGATION TO BARGAIN ABOUT ITS DISCONTINUANCE. HOWEVER, IN VIEW OF
THE FOREGOING, IT IS UNNECESSARY TO DECIDE THAT ISSUE IN THIS MATTER.
RESPONDENT ALSO CONTENDS THAT IT INFORMED UNION REPRESENTATIVE ADAMS
OF ITS DECISION TO USE HEMET OFFICE PART-TIME EMPLOYEES TO WORK THE
EXTRA HOUR PER DAY UNTIL IT CLEARED UP AN EXISTING BACKLOG IN THE HEMET
OFFICE. IF SO, IT IS MY VIEW, THAT AN OBLIGATION TO BARGAIN CONCERNING
ANY IMPACT ON THE HEMET EMPLOYEES EXISTED AT THE TIME THE UNION WAS
INFORMED OF THE DECISION TO USE HEMET EMPLOYEES IN SUCH A FASHION AND
NOT WHEN THE EXTENDED DAY OF SUCH EMPLOYEES WAS TERMINATED OR
DISCONTINUED. HOWEVER, THE GRAVAMEN OF THE COMPLAINT IN THIS CASE IS
THAT RESPONDENT WAS OBLIGATED TO BARGAIN ABOUT ITS DECISION TO
DISCONTINUE THE USE OF PART-TIME EMPLOYEES. UNFORTUNATELY, ONCE THE
BACKLOG HAS BEEN DISPOSED OF AND EMPLOYEES RETURNED TO THEIR NORMAL
SHIFTS OR TOURS OF DUTY THERE IS NOTHING TO BARGAIN ABOUT. TO FIND
OTHERWISE WOULD BE TO SUGGEST THAT RESPONDENT WOULD BE REQUIRED TO
CONTINUE THE PRACTICE OF USING THESE EMPLOYEES IN AN EXTENDED CAPACITY
WHEN THE WORKLOAD WOULD NOT JUSTIFY SUCH USAGE.
THE QUESTION OF WHETHER OR NOT THE UNION WAS INFORMED OF THE DECISION
TO USE PART-TIME EMPLOYEES IN THE HEMET OFFICE ON A FULL-TIME BASIS AND
THUS RECEIVED NOTICE OF THAT DECISION IS ONE OF CREDIBILITY WHICH IS
RESOLVED IN FAVOR OF RESPONDENT. BOTH DISTRICT MANAGER MCCLURE AND
ASSISTANT DISTRICT MANAGER BURDEN TESTIFIED THAT ADAMS WAS TOLD OF THE
DECISION IN A SHORT BUT INFORMAL MEETING. ADAMS DOES NOT RECALL BEING
TOLD OF THE DECISION, BUT DOES NOT DENY THAT SHE RECEIVED SUCH NOTICE.
UPON REFLECTION, CONCERNING A PERSONNEL CHANGE, ADAMS TESTIFIED THAT IF
SUCH PROBLEM WERE BROUGHT TO HER ATTENTION, SHE WOULD PROBABLY ASK FOR
TIME TO TALK OR PERHAPS WORK OUT A COMPROMISE. HOWEVER, SHE MAKES NO
MENTION OF WHAT ACTION SHE WOULD TAKE IF A NEGOTIABLE PROPOSAL WAS GIVEN
TO HER IN THE CAPACITY OF UNION REPRESENTATIVE.
THE MEETING APPARENTLY DID NOT INVOLVE SPECIFIC DETAILS OF HOW AND
WHEN THE EXTENDED WORKDAY WAS TO BE IMPLEMENTED, BUT, ADAMS, ACCORDING
TO BURDEN AND MCCLURE OFFERED NO ALTERNATIVES OR PROPOSALS NOR DID SHE
REQUEST BARGAINING ON THE MATTER. HOWEVER, MCCLURE CONTENDS THAT IT WAS
MADE CLEAR THAT THE HEMET PRACTICE WAS TEMPORARY AND TO END WHEN THE
BACKLOG REACHED A REASONABLE SIZE. LENDING FURTHER SUPPORT IS THE FACT
THAT ADAMS DID NOT REQUEST BARGAINING IN DECEMBER 1979, WHEN MCCLURE
TOLD HER THAT STARK'S CARPOOL PROBLEM WAS NON-NEGOTIABLE, ADAMS TOOK NO
FURTHER ACTION ON THAT MATTER, OTHER THAN TO SUGGEST THAT STARK CONTACT
ANOTHER UNION REPRESENTATIVE FROM THE "YELLOW BOOK". NOTWITHSTANDING
THE FACT THAT ADAMS DID NOT RECALL THE MEETING WITH MCCLURE AND BURDEN,
I CREDIT THEIR VERSION AND FIND, THAT ADAMS WAS INFORMED THAT
PART-TIMERS WERE TO BE USED IN HEMET TO WORK AN EXTENDED DAY, THAT THE
EXTENDED DAY WAS ONLY TEMPORARY, AND TO END AT THE DURATION OF THE
BACKLOG, BUT THAT SHE DID NOT REQUEST BARGAINING AT THE TIME THE
NOTIFICATION WAS GIVEN.
IN MY OPINION, IT IS CLEAR THAT THE DURATION OF THE USE OF PART-TIME
EMPLOYEES AT HEMET WAS, AMONG OTHER THINGS, SUBJECT TO IMPACT AND
IMPLEMENTATION BARGAINING, AT THE TIME THE DECISION TO EXTEND THE WORK
HOURS OF THE PART-TIME EMPLOYEES WAS ANNOUNCED. SINCE IT HAS BEEN FOUND
THAT ADAMS WAS MADE AWARE OF THE DECISION IT WAS INCUMBENT ON HER TO
REQUEST BARGAINING AT THAT TIME AND NOT AT THE CONCLUSION OF THE
EXTENDED HOURS.
ACCORDINGLY, IT IS FOUND THAT RESPONDENT DID NOT VIOLATE SECTION
7116(A)(1) AND (5) OF THE STATUTE BY REFUSING TO BARGAIN CONCERNING THE
IMPACT AND IMPLEMENTATION OF ITS DECISION TO DISCONTINUE ALLOWING
PART-TIME EMPLOYEES IN THE HEMET OFFICE TO WORK AN EXTENDED WORKDAY
DURING A BACKLOG. /7/
B. THE FORMAL MEETINGS
EVEN ASSUMING THAT AN OBLIGATION TO NEGOTIATE CONCERNING THE EXTENDED
WORKDAY EXISTED, I CONCLUDE THAT THE MEETINGS ALLEGED BY THE GENERAL
COUNSEL TO CONSTITUTE "FORMAL" DISCUSSIONS UNDER SECTION 7114(A)(2)(A)
OF THE STATUTE DID NOT CONCERN CHANGES IN RESPONDENT'S PERSONNEL POLICY
OR INVOLVE DISCUSSIONS OF GENERAL WORKING CONDITIONS IN VIOLATION OF
SECTION 7116(A)(8) OF THE STATUTE. THE GENERAL COUNSEL CITES CASES
WHICH ARE DISTINGUISHABLE. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, CHICAGO DISTRICT, CHICAGO, ILLINOIS, 1 FLRA NO. 14(1979);
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER, 8 A/SLMR
1237, A/SLMR NO. 1150(1978); DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, OFFICE OF THE SECRETARY, OFFICE FOR CIVIL RIGHTS, 8 A/SLMR
1211, A/SLMR NO. 1145(1978). THESE CASES INVOLVE ACTUAL MEETINGS WHERE
REPRESENTATIVES WERE NOT ALLOWED TO PARTICIPATE AFTER ATTENDING THE
MEETINGS OR INAPPROPRIATE NOTICE WAS GIVEN. IN THE INSTANT MATTER, THE
UNION NEVER RECEIVED NOTICE OR AN OPPORTUNITY TO BE PRESENT WHEN THE
THREE EMPLOYEES HEREIN WERE INFORMED THAT THEY MUST RESUME THEIR
PERMANENT PART-TIME SHIFTS, BUT SUCH NOTICE WAS UNNECESSARY.
ON DECEMBER 11, 1979 ONLY SUPERVISORY LEONARD AND THE INDIVIDUAL
EMPLOYEE WERE PRESENT. HOWEVER, THE MATTER DISCUSSED BY LEONARD AT THE
MEETINGS DID NOT INVOLVE GENERAL WORKING CONDITIONS, GRIEVANCES OR
PERSONNEL POLICIES OR PRACTICES. THE DECEMBER 11, 1979 MEETINGS WITH
EMPLOYEES WERE MERELY TO INFORM THEM THAT THEY WOULD BE RETURNING TO THE
PART-TIME STATUS FOR WHICH THEY WERE HIRED. FURTHERMORE, THE QUESTIONS
DIRECTED AT LEONARD AS SHOWN BY THE RECORD INVOLVED NOT UNIT CONDITIONS,
BUT ONLY A CONCERN FOR STARK'S CARPOOL SITUATION.
THE STATUTE IS SILENT AS TO THE MEANING OF "FORMAL" DISCUSSION, BUT,
THE LEGISLATIVE HISTORY OF THE STATUTE SHOWS THAT:
THE COMPROMISE INSERTED THE WORD "FORMAL" BEFORE DISCUSSION MERELY IN
ORDER TO MAKE CLEAR
THAT THIS SUBSECTION DOES NOT REQUIRE THAT AN EXCLUSIVE
REPRESENTATIVE BE PRESENT DURING
HIGHLY PERSONAL, INFORMAL MEETINGS SUCH AS COUNSELLING SESSIONS
REGARDING PERFORMANCE. 124
CONG. REC. H9650 (DAILY ED. SEPT. 13, 1978)
THE ABOVE LANGUAGE INDICATES THAT THERE ARE SITUATIONS IN WHICH THE
PRESENCE OF THE EXCLUSIVE REPRESENTATIVE IS NOT ESSENTIAL. NOTIFICATION,
WHERE A DECISION HAS ALREADY BEEN MADE WOULD NOT, IN MY OPINION RISE TO
THE "FORMAL" LEVEL SET OUT IN THE STATUTE. IN MY VIEW, THE PRESENCE OF
THE EXCLUSIVE REPRESENTATIVE WAS NOT ESSENTIAL DURING ANNOUNCEMENTS. I,
THEREFORE, FIND THAT RESPONDENT'S CONDUCT ON DECEMBER 11, 1979 IN
NOTIFYING EMPLOYEES THAT THEY WERE NO LONGER TO WORK AN EXTENDED
WORKDAY
DID NOT VIOLATE SECTION 7116(A)(8) OF THE STATUTE.
SIMILARLY, I FIND THAT THE JANUARY 1980 MEETING BETWEEN MALLORY,
STARK AND BURDEN DID NOT CONSTITUTE A FORMAL DISCUSSION AND THAT NO
VIOLATION OCCURRED. AT THE OUTSET, THE RECORD CLEARLY REVEALS THAT THIS
MEETING WAS NOT HELD AT THE REQUEST OF BURDEN, AND THAT THE UNION ASKED
FOR AND WAS AWARE THAT HE WOULD MEET WITH THESE EMPLOYEES, BUT DID NOT
REQUEST TO BE PRESENT AT THE MEETING. BURDEN TESTIFIED THAT HE MET THE
EMPLOYEES PURSUANT TO A REQUEST FROM ADAMS. THE RECORD ALSO SHOWS THAT
STARK AND MALLORY HAD ALSO REQUESTED TO SEE BURDEN CONCERNING STARK'S
SITUATION. FURTHERMORE, THERE WAS NO GRIEVANCE OR DISCIPLINARY ACTION
INVOLVED AND THAT MEETING DID NOT CONSTITUTE ONE WHICH INVOLVED A
DISCUSSION OF TERMS AND CONDITIONS OF EMPLOYMENT IN THE UNIT, BUT MERELY
THE CARPOOL SITUATION OF ONE INDIVIDUAL. IN THIS CONTEXT, BURDEN'S
TESTIMONY THAT ADAMS REQUESTED THAT HE SPEAK WITH THE EMPLOYEES WHEN THE
OPPORTUNITY PRESENTED ITSELF IS CREDITED. THEREFORE, EVEN ASSUMING THAT
THE PURPOSE OF THE MEETING WAS TO DISCUSS WORKING CONDITIONS OR
PERSONNEL CHANGES, THE UNION HAD AN OPPORTUNITY TO BE PRESENT, IF IT HAD
SO DESIRED.
CONCERNING THE MEETING, THE RECORD DISCLOSED THAT BURDEN WAS IN HEMET
ON ANOTHER MATTER WHICH DID NOT INVOLVE THE PART-TIME EMPLOYEES AND THAT
WHILE THERE STARK AND MALLORY SOUGHT HIM OUT FOR DISCUSSION. THE
SUBSTANCE OF THE MEETING AS THE RECORD DISCLOSES WAS TO DISCUSS STAFFING
PATTERNS AND POSSIBILITIES FOR OBTAINING FULL-TIME EMPLOYMENT OR TO FIND
A SOLUTION FOR STARK'S PROBLEM WITH HER CARPOOL. BURDEN'S RESPONSES TO
QUESTIONS CONCERNING PROPOSALS GIVEN BY STARK WERE MERELY A RESTATEMENT
OF THE FULL-TIME EMPLOYMENT POTENTIAL AT THE HEMET OFFICE, AT THE TIME,
A SUBJECT WHICH, IN MY VIEW, CAN CERTAINLY BE DISCUSSED WITH INDIVIDUAL
EMPLOYEES WITHOUT THE PRESENCE OF THE EXCLUSIVE REPRESENTATIVE,
PARTICULARLY IF THE REPRESENTATIVE HAS REQUESTED THE MEETINGS BUT HAD
NOT REQUESTED TO BE PRESENT. MOREOVER, THERE WAS NO ANNOUNCEMENT OF A
CHANGE IN WORKING CONDITIONS OR PERSONNEL POLICIES AT THIS MEETING, FOR
THE CHANGE, IF ANY, HAD BEEN EFFECTUATED A MONTH EARLIER. TO FIND THAT
AN EMPLOYER CANNOT DISCUSS EMPLOYMENT POTENTIAL, PARTICULARLY WHERE NO
DISCIPLINARY ACTION OR TERMS AND CONDITIONS OF EMPLOYMENT ABOUT WHICH
THERE IS NO OBLIGATION TO BARGAIN, WITH EMPLOYEES WITHOUT THE PRESENCE
OF THE EXCLUSIVE REPRESENTATIVE, WOULD NOT EFFECTUATE THE PURPOSES OF
THE STATUTE.
UNDER ALL THE CIRCUMSTANCES, IT IS FOUND THAT BURDEN WAS REQUESTED TO
AND DID SPEAK WITH MALLORY AND STARK, THAT THE UNION WAS AWARE THAT HE
WOULD DO SO, IF THE OPPORTUNITY PRESENTED ITSELF, AND THAT HE MERELY
EXPLAINED TO STARK AND MALLORY WHY THEIR HOURS HAD BEEN REDUCED.
FURTHERMORE, IT IS FOUND THAT THE UNION HAD NOTICE, SINCE ADAMS
REQUESTED THAT BURDEN MEET WITH THE EMPLOYEES AND, THE OPPORTUNITY TO BE
PRESENT AT THIS MEETING, IF IT HAD SO REQUESTED. IN ALL CIRCUMSTANCES,
IT DOES NOT APPEAR THAT NOTICE OR AN OPPORTUNITY TO BE PRESENT WAS
NECESSARY.
ACCORDINGLY, IT IS FOUND THAT THE ALLEGATIONS OF THE COMPLAINT
CONCERNING A VIOLATION OF SECTION 7116(A)(8) BASED ON THE JANUARY 1980
MEETING SHOULD BE DISMISSED.
HAVING FOUND AND CONCLUDED IN ALL THE CIRCUMSTANCES, THAT
DISCONTINUING THE PRACTICE OF ALLOWING PART-TIME EMPLOYEES TO WORK ONE
EXTRA HOUR PER DAY AND INFORMING THEM OF THE DISCONTINUANCE DID NOT
VIOLATE THE STATUTE AND HAVING FURTHER FOUND, THAT THE MEETINGS ALLEGED
TO HAVE OCCURRED ON DECEMBER 11, 1979 AND IN JANUARY 1980 DID NOT
CONSTITUTE FORMAL DISCUSSIONS WHICH THE UNION WAS ENTITLED TO HAVE
NOTICE AND TO ATTEND DID NOT VIOLATE THE STATUTE, IT IS RECOMMENDED THAT
THE FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-390,
ALLEGING VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE,
BE, AND IT HEREBY IS DISMISSED, IN ITS ENTIRETY.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 4, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS
UPON, AND SPECIFICALLY DOES NOT ADOPT, THE JUDGE'S STATEMENTS TO THE
EFFECT THAT ONCE THE BACKLOG HAD BEEN DISPOSED OF AND EMPLOYEES RETURNED
TO THEIR NORMAL SHIFTS OR TOURS OF DUTY THERE WAS NOTHING TO BARGAIN
ABOUT BECAUSE A CONTRARY RESULT WOULD REQUIRE RESPONDENT TO CONTINUE
THE
PRACTICE OF USING THE EMPLOYEES IN AN EXTENDED CAPACITY WHEN THE
WORKLOAD WOULD NOT JUSTIFY SUCH USAGE.
/2/ SECTION 7114(A)(2)(A) PROVIDES:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
/3/ ACCORDINGLY, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE
JUDGE'S COMMENT THAT THE PRESENCE OF AN EXCLUSIVE REPRESENTATIVE IS NOT
ESSENTIAL DURING ANNOUNCEMENTS INVOLVING DECISIONS WHICH HAVE ALREADY
BEEN MADE.
/4/ IN VIEW OF THE FOREGOING CONCLUSION, THE AUTHORITY FINDS IT
UNNECESSARY TO, AND SPECIFICALLY DOES NOT, PASS UPON THE JUDGE'S
CONCLUSION THAT THE UNION HAD NOTICE OF AND AN OPPORTUNITY TO REQUEST TO
BE PRESENT AT THE MEETING.
/5/ THE RECORD INDICATES THAT NEITHER STARK NOR MALLORY WORKED FORTY
HOURS EACH WEEK DURING THIS PERIOD AND IF THEY HAD TO LEAVE EARLY ON
PERSONAL BUSINESS THEY WERE PAID FOR ONLY THE REGULAR SEVEN HOUR TOUR OF
DUTY FOR THAT DAY.
/6/ ACCORDING TO RESPONDENT, STAFFING ALLOCATIONS WERE MADE
QUARTERLY.
/7/ BASED ON THE ABOVE FINDING IT IS UNNECESSARY TO DECIDE WHETHER
SECTION 7118(A)(4)(A) APPLIES IN THIS MATTER.