[ v10 p115 ]
10:0115(24)CA
The decision of the Authority follows:
10 FLRA No. 24
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BUREAU OF FIELD OPERATIONS
SAN FRANCISCO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
SECURITY DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION
Charging Party
Case No. 9-CA-368
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, /1/ THE AUTHORITY
FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) /2/ BY MEETING WITH AND/OR BARGAINING
DIRECTLY AND INDIVIDUALLY WITH EMPLOYEES IN THE UNIT CONCERNING TERMS
AND CONDITIONS OF EMPLOYMENT ON FEBRUARY 28, 1980, IN DEROGATION OF THE
CHARGING PARTY'S STATUS AS EXCLUSIVE REPRESENTATIVE, AND ADDITIONALLY
VIOLATED SECTION 7116(A)(1) AND (8) BY HOLDING SUCH FORMAL DISCUSSIONS
WITHIN THE MEANING OF SECTION 7114(A)(2)(A) /3/ WITHOUT PROVIDING THE
UNION WITH NOTICE AND AN OPPORTUNITY TO BE PRESENT.
ON AUGUST 30, 1979, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (AFGE) WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF A
NATIONAL CONSOLIDATED UNIT CONSISTING OF, INTER ALIA, A UNIT OF
RESPONDENT'S EMPLOYEES FOR WHICH THE CHARGING PARTY WAS CERTIFIED AS
EXCLUSIVE REPRESENTATIVE IN 1972. NO NATIONAL COLLECTIVE BARGAINING
AGREEMENT YET EXISTS, AND THEREFORE THE TERMS AND CONDITIONS SET FORTH
IN THE PRE-CONSOLIDATION AGREEMENT NEGOTIATED IN 1977 BETWEEN THE
RESPONDENT AND THE CHARGING PARTY REMAIN IN EFFECT. /4/
ON OR ABOUT FEBRUARY 28, 1980, ANITA BUCHANAN, RESPONDENT'S
OPERATIONS SUPERVISOR AT THE PORTERVILLE BRANCH OFFICE IN PORTERVILLE,
CALIFORNIA, HELD INDIVIDUAL DISCUSSIONS WITH BARGAINING UNIT EMPLOYEES
WHEREIN SHE SOLICITED THEIR COMMENTS AND SUGGESTIONS WITH REGARD TO THE
ASSIGNMENT AND DISTRIBUTION OF WORK FOLLOWING THE REASSIGNMENT OF SAUL
SALMON, A BARGAINING UNIT EMPLOYEE, TO A 60-DAY DETAIL TO ANOTHER SOCIAL
SECURITY OFFICE IN A DIFFERENT CITY. THE DISCUSSIONS WERE HELD WITHOUT
PROVIDING THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED AT
THE MEETING.
THE GENERAL COUNSEL CONTENDS THAT THE RESPONDENT'S INDIVIDUAL
MEETINGS WITH BARGAINING UNIT EMPLOYEES CONSTITUTED DEALING DIRECTLY
WITH UNIT EMPLOYEES ABOUT WORKING CONDITIONS, THEREBY UNLAWFULLY
BYPASSING THE UNION. THE GENERAL COUNSEL FURTHER CONTENDS THAT THE
MEETINGS WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
7114(A)(2)(A) OF THE STATUTE AND THAT THE RESPONDENT'S FAILURE TO
PROVIDE THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED AT
SUCH MEETINGS VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE.
ON THE OTHER HAND, THE RESPONDENT ARGUES THAT IT HAD NO OBLIGATION TO
AFFORD THE UNION AN OPPORTUNITY TO BE PRESENT AT THE MEETINGS BECAUSE IT
HAD A RIGHT UNDER THE NEGOTIATED AGREEMENT TO HOLD DISCUSSIONS REGARDING
THE DAY-TO-DAY OPERATIONS OF THE UNIT, /5/ AND THAT THE MEETINGS
CONSTITUTED PERMISSIBLE INFORMAL CONTACTS FOR THE PURPOSE OF GETTING
INPUT FROM STAFF MEMBERS. THE RESPONDENT FURTHER ARGUES THAT BECAUSE
THE UNION REPRESENTATIVE WAS PRESENT AT THE STAFF MEETING AND CHOSE NOT
TO EXPRESS HIS VIEWS, HE CONSTRUCTIVELY WAIVED HIS RIGHT TO CONSULT ON
THE ISSUE.
AS REFLECTED BY THE CONTENTIONS OF THE PARTIES SET FORTH ABOVE, A
CENTRAL ISSUE IS WHETHER THE DISCUSSIONS IN QUESTION WERE FORMAL OR
INFORMAL. ONLY IF THEY WERE "FORMAL" WITHIN THE MEANING OF SECTION
7114(A)(2)(A) OF THE STATUTE WOULD THERE BE A REQUIREMENT THAT AFGE BE
GIVEN AN OPPORTUNITY TO BE REPRESENTED. THE AUTHORITY HAS FOUND
MEETINGS TO BE "FORMAL DISCUSSIONS" WHERE, FOR EXAMPLE, MANAGEMENT
REPRESENTATIVES CALLED MEETINGS WITH EMPLOYEES AT WHICH ATTENDANCE WAS
MANDATORY AND AN AGENDA HAD BEEN ESTABLISHED BY MANAGEMENT TO DISCUSS A
NUMBER OF MATTERS INVOLVING GENERAL CONDITIONS OF EMPLOYMENT OR SPECIFIC
CHANGES IN JOB DUTIES. /6/ ON THE OTHER HAND THE AUTHORITY HAS
RECOGNIZED THAT NOT ALL DISCUSSIONS BETWEEN REPRESENTATIVES OF AGENCY
MANAGEMENT AND UNIT EMPLOYEES ARE "FORMAL DISCUSSIONS" WITHIN THE
MEANING OF SECTION 7114(A)(2)(A). /7/ FOR INSTANCE, THE AUTHORITY HAS
HELD THAT CERTAIN TYPES OF "INFORMATION GATHERING" ACTIVITIES ARE NOT
"FORMAL DISCUSSIONS" UNDER SECTION 7114(A)(2)(A) OF THE STATUTE. /8/
IN THE INSTANT CASE, THE AUTHORITY CONCLUDES THAT THE GENERAL COUNSEL
HAS NOT MET THE BURDEN OF PROVING THAT THE INDIVIDUAL MEETINGS WERE
"FORMAL" DISCUSSIONS. THUS, THE STIPULATED FACTS DO NOT REVEAL (1)
WHETHER THE INDIVIDUAL WHO HELD THE DISCUSSIONS IS MERELY A FIRST-LEVEL
SUPERVISOR OR IS HIGHER IN THE MANAGEMENT HIERARCHY; (2) WHETHER ANY
OTHER MANAGEMENT REPRESENTATIVES ATTENDED; (3) WHERE THE INDIVIDUAL
MEETINGS TOOK PLACE (I.E., IN THE SUPERVISOR'S OFFICE, AT EACH
EMPLOYEE'S DESK, OR ELSEWHERE); (4) HOW LONG THE MEETINGS LASTED; (5)
HOW THE MEETINGS WERE CALLED (I.E., WITH FORMAL ADVANCE WRITTEN NOTICE
OR MORE SPONTANEOUSLY AND INFORMALLY; (6) WHETHER A FORMAL AGENDA WAS
ESTABLISHED FOR THE MEETINGS; (7) WHETHER EACH EMPLOYEE'S ATTENDANCE
WAS MANDATORY; OR (8) THE MANNER IN WHICH THE MEETINGS WERE CONDUCTED
(I.E., WHETHER THE EMPLOYEE'S IDENTITY AND COMMENTS WERE NOTED OR
TRANSCRIBED). THEREFORE, THE AUTHORITY FINDS THAT THE GENERAL COUNSEL
HAS FAILED TO ESTABLISH THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (8) OF THE STATUTE BY FAILING TO COMPLY WITH SECTION 7114(A)(2)(A).
WITH REGARD TO THE ALLEGATION THAT THE RESPONDENT BYPASSED THE UNION
BY HOLDING THE INDIVIDUAL MEETINGS WITH UNIT EMPLOYEES, ONCE AGAIN THE
STIPULATED RECORD IS INADEQUATE TO SUSTAIN THE GENERAL COUNSEL'S BURDEN
OF ESTABLISHING BY A PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE. /9/ THUS, THERE IS
NO EVIDENCE IN THE RECORD CONCERNING THE SPECIFIC CONTENT OF THE
COMMUNICATIONS AT SUCH MEETINGS, AND THUS NO EVIDENCE AS TO WHETHER ANY
MATTERS WERE DISCUSSED AS TO WHICH THE RESPONDENT HAD A DUTY TO BARGAIN
WITH THE CHARGING PARTY. THE RECORD ESTABLISHES ONLY THAT THE
CONVERSATIONS WERE INITIATED SOLELY TO GATHER INFORMATION TO ASSIST THE
RESPONDENT IN MAKING A NON-NEGOTIABLE MANAGEMENT DETERMINATION
CONCERNING THE ASSIGNMENT OF WORK. /10/
IN SUMMARY, THE AUTHORITY CONCLUDES THAT THE GENERAL COUNSEL HAS
FAILED TO SUSTAIN THE BURDEN OF PROVING THAT THE RESPONDENT UNLAWFULLY
BYPASSED THE UNION OR DENIED IT THE OPPORTUNITY TO BE PRESENT AT FORMAL
DISCUSSIONS IN VIOLATION OF SECTION 7116(A)(1), (5) OR (8) OF THE
STATUTE, AS ALLEGED IN THE COMPLAINT. THEREFORE, THE COMPLAINT SHALL BE
DISMISSED IN ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-368 BE, AND
IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE GENERAL COUNSEL HAS MOVED TO STRIKE PORTIONS OF THE
RESPONDENT'S BRIEF ON THE GROUNDS THAT THE BRIEF CONTAINS FACTUAL
MATERIAL NOT INCLUDED IN THE STIPULATION OF FACTS. IN REACHING ITS
DECISION IN THE INSTANT CASE, THE AUTHORITY HAS ONLY CONSIDERED FACTS
CONTAINED IN THE STIPULATION, AND THEREFORE THE MOTION TO STRIKE IS
DENIED.
/2/ SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/3/ SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
. . . .
(A)(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 PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
/4/ SEE SECTION 2422.2(H)(8) OF THE AUTHORITY'S RULES AND
REGULATIONS.
/5/ ARTICLE 5 - MANAGEMENT RIGHTS
SECTION G.
MANAGEMENT OFFICIALS, INCLUDING SUPERVISORS, RETAIN THE RIGHT TO HOLD
COUNSELING AND OTHER
DISCUSSIONS WITH EMPLOYEES WITHOUT THE PRESENCE OF A UNION
REPRESENTATIVE, UNLESS AND UNTIL
THE EMPLOYEE HAS ASKED WHETHER THE MEETING MIGHT RESULT IN
DISCIPLINARY ACTION AND THE REPLY
HAS BEEN IN THE AFFIRMATIVE.
ARTICLE 4, SECTION C(5) OF THE AGREEMENT STATES THAT ARTICLE 5,
MANAGEMENT RIGHTS, IS NOT SUBJECT TO NEGOTIATIONS AT THE DISTRICT LEVEL.
/6/ SEE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VI,
ATLANTA, GEORGIA AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV,
ATLANTA, GEORGIA, 5 FLRA NO. 58(1981). SEE ALSO NORFOLK NAVAL
SHIPYARD, PORTSMOUTH, VIRGINIA, 6 FLRA NO. 22(1981).
/7/ SEE OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 9 FLRA NO. 9(1982).
/8/ SEE, E.G., INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE
CENTER, 9 FLRA NO. 132(1982) AND KAISERSLAUTERN AMERICAN HIGH SCHOOL,
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, GERMANY NORTH REGION, 9 FLRA
NO. 28(1982).
/9/ SEE U.S. DEPARTMENT OF THE AIR FORCE, 47TH AIR BASE GROUP (ATC),
LAUGHLIN AIR FORCE BASE, TEXAS, 4 FLRA NO. 65(1980).
/10/ SECTION 7106(A)(2)(B) PROVIDES, IN PERTINENT PART, THAT
MANAGEMENT HAS THE RIGHT "TO ASSIGN WORK, . . . AND TO DETERMINE THE
PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED . . . ."