[ v16 p232 ]
16:0232(33)CA
The decision of the Authority follows:
16 FLRA No. 33
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395, AFL-CIO
Charging Party
Case No. 5-CA-20141
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it cease and desist therefrom and take certain
affirmative action. The Judge further found that the Respondent had not
engaged in certain other alleged unfair labor practices and recommended
dismissal of the complaint with respect to them. Thereafter, the
Respondent filed exceptions to the Judge's Decision and the General
Counsel filed cross-exceptions and an opposition to the Respondent's
exceptions. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, and noting particularly that no
exceptions were filed with respect to the Judge's dismissal of the
allegations concerning the November 2, 1981 meeting, the Authority
hereby adopts the Judge's findings, conclusions and Recommended Order.
/2/ With respect to the "orientation session" held on September 8, 1981,
the Judge concluded that inasmuch as the format of that meeting was so
similar to the "orientation sessions" held to be formal discussions
within the meaning of section 7114(a)(2)(A) of the Statute in Department
of Health, Education and Welfare, Region IV, Atlanta, Georgia and
Department of Health and Human Services, Region IV, Atlanta, Georgia, 5
FLRA 458 (1981), that it was unnecessary for him to respond to
Respondent's contention that the meeting did not constitute a
"discussion" within the meaning of section 7114(a)(2)(A) of the Statute.
In this regard, the Respondent contended that the meeting in question
was not a "discussion" because it was limited to a presentation by
Respondent's agent in which no debate or argument with employees was
involved. However, the Authority addressed a similar contention, and
found it to be without merit, in Department of Defense, National Guard
Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group
(ANG) (TAC), Kelly Air Force Base, 15 FLRA No. 111 (1984). The
Authority concluded in this regard that the absence of actual dialogue
may not be relied upon to justify a failure to have given the exclusive
representative an opportunity to be present at a formal discussion,
concerning grievances, personnel policies or practices or other general
conditions of employees.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Department of Health and Human Services, Social Security Administration,
shall:
1. Cease and desist from:
(a) Failing or refusing to give the American Federation of Government
Employees, Local 1395, AFL-CIO, the employee's exclusive representative,
an opportunity to be represented at formal discussions, such as the
orientation session held September 8, 1981, with bargaining unit
employees at which personnel policies or practices or other general
conditions of employment are discussed.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Give the American Federation of Government Employees, Local 1395,
AFL-CIO, the employees' exclusive representative, the opportunity to be
represented at formal discussions, including orientation sessions for
new employees in the bargaining unit, at which personnel policies or
practices or other general conditions of employment are discussed.
(b) Post at its facilities located at 6349 South Cottage Grove,
Chicago, Illinois, 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 District Manager, or his
designee, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and other
places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith. Issued,
Washington, D.C., October 19, 1984.
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to give the American Federation of
Government Employees, Local 1395, AFL-CIO, our employees' exclusive
representative, the opportunity to be represented at formal discussions,
such as the orientation session held September 8, 1981, with bargaining
unit employees at which personnel policies or practices or other general
conditions of employment are discussed.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured by the
Statute.
WE WILL give the American Federation of Government Employees, Local
1395, AFL-CIO, our employees' exclusive representative, the opportunity
to be represented at formal discussions, including orientation sessions
for new employees in the bargaining unit, at which personnel policies or
practices or other general conditions of employment are discussed.
(District Manager)
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, Region V, Federal Labor Relations Authority, whose address is:
Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395, AFL-CIO
Charging Party
Case No.: 5-CA-20141
Mr. Wilson G. Schuerholz
For the Respondent
Ms. Mary McManus
For the Charging Party
Judith Ramey, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Five, Federal Labor Relations Authority,
Chicago, Illinois against the Department of Health and Human Services,
Social Security Administration (Respondent), based on a charge filed by
the American Federation of Government Employees, Local 1395, AFL-CIO
(Charging Party or Union). The amended complaint alleged, in substance,
that Respondent violated sections 7116(a)(1), (5), and (8) of the
Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et
seq. (the Statute), by conducting orientation meetings with employees on
September 8, 1981 and November 2, 1981 at which personnel policies,
practices, and other general conditions of employment were discussed
without complying with section 7114(a)(2)(A) of the Statute and in
bypassing the Union. Respondent denied any violation of the Statute.
A hearing was held in this matter in Chicago, Illinois. The
Respondent, Charging Party and the General Counsel were represented and
afforded full opportunity to be heard, adduce relevant evidence, examine
and cross-examine witnesses, and file post-hearing briefs. Based on the
entire record herein, /3/ including my observation of the witnesses and
their demeanor, the exhibits, other relevant evidence adduced at the
hearing, and the briefs, I make the following findings of fact,
conclusions of law, and recommendations.
Findings of Fact
Employees of the Social Security Administration at its District
Office at 6349 South Cottage Grove, Chicago, Illinois (herein referred
to as the Cottage Grove office or as the Activity) are part of a
consolidated unit represented by the American Federation of Government
Employees (AFGE). Local 1395 has acted as AFGE's representative on its
behalf, with respect to those employees, at all times material to this
case. Mary McManus, a claims representative at the Activity since 1962,
has served as steward for Local 1395 since 1974. Ms. McManus is the
primary labor-management contact for the Cottage Grove office.
During 1981, a number of new and/or rehired employees came into the
Cottage Grove office to begin work. New employees were introduced to
other employees, in 1981, either in staff meetings or in desk-to-desk
introductions. The Union was not given, in 1981, notice that new
employees were to begin work, nor was it given notice that any
orientation meetings were to be held. The Union was not afforded an
opportunity to be represented in any of these meetings nor was the Union
steward present at any of them.
The September 8, 1981 Meeting
September 8, 1981 was the first day for a number of new employees at
the Cottage Grove office. The group numbered approximately six, an
unusually large number for this office. At an early morning staff
meeting, District Manager Robert Hall asked the new employees to stand
as he introduced them to the other employees. Following the staff
meeting, Mr. Hall asked the new employees to go to the office's only
conference, or training, room where the orientation session took place.
District Manager Hall and Assistant District Manager Addison Kennon
made brief speeches. Mr. Hall gave his standard greeting speech. He
welcomed the new employees and explained the hierarchy of the office.
He advised them that there was a Union, Local 1395; that they would be
introduced to the Union steward, Mary McManus, later; and that
management was neutral in terms of whether or not employees joined or
did not join the Union. Mr. Hall also informed the new employees of the
existence of a sunshine club, operated by employees for the purpose of
collecting money for special occasion gifts, etc., which they could also
choose whether or not to join. The manager and assistant manager left
after five or ten minutes.
Barbara Sims, operations officer for the Activity, then conducted the
rest of the meeting. The Cottage Grove office has no personnel or labor
relations specialist assigned to the office. Ms. Sims is responsible
for all program activities, including administrative and management
support for these areas. She supervises seven supervisors, who in turn
supervise approximately 80 employees. Ms. Sims conducts 8 to 12
orientation sessions a year. She regards the purpose of these sessions
as being to familiarize new employees with the office operations and
provide them information regarding procedures and policies which they
will need to know. Ms. Sims does not follow an agenda. She does not
cover the various items in any particular order, but, by memory, covers
the same items with each group.
Ms. Sims first distributed orientation packets prepared for each
employee by the regional personnel office. /4/ The packets varied
somewhat depending on the type of appointment of the employee, such as
temporary or career. Generally, the packets contained the same basic
information including pamphlets on working for the Federal government
and the Social Security Administration, retirement, life insurance, and
health insurance. The packets also contained personnel forms to be
filled out by the employees, such as the oath of office and certificate
against striking, insurance forms, and tax withholding forms.
Ms. Sims administered the oath of office, and the employees proceeded
to fill out the forms. She was available to explain and answer
questions on the forms, although the record does not show that any
particular questions were asked concerning the forms.
After going through the orientation packets, and emphasizing the time
limit on selecting insurance coverage, Ms. Sims explained the working
hours, breaks, and leave procedure. Ms. Sims also explained the
necessity for reporting to work on time and the number to call in the
event of tardiness, sick leave, or other emergency. She advised the
employees about the restrictions on giving or receiving gifts and the
necessity for permission in order to engage in outside work. She told
them about lunch places in the area and the agenda they would have for
their job training. Ms. Sims was available to answer questions
concerning these items. However, the only question discovered by the
record dealt with when the employees would receive their first pay
checks.
The tone of the meeting was relaxed. No controversies arose. No
notes were taken. The September 8, 1981 meeting lasted one hour and a
half.
The November 2, 1981 Meeting
On November 2, 1981 two employees, Almira Eagles and Denise Clinton,
reported for work at the Cottage Grove district office. Eagles had once
worked in the office for three years and was being reinstated as a
claims development clerk after a two-year absence. Clinton was
reporting for duty at Cottage Grove after having worked at another
office. The two were welcomed by Assistant Manager Kennon, in his
office, and then were taken to Ms. Sims' office by Ms. Sims.
Ms. Sims introduced herself as the operations officer and welcomed
the two employees. The meeting was friendly and casual. Ms. Eagles
asked Mr. Sims whether the dress code had changed. The record does not
reflect Ms. Sims' reply. Ms. Sims brought up leave usage. She stated
that the office really didn't have a problem; that leave was the
employee's to use, but should be requested as far in advance as
possible. Ms. Eagles and Ms. Sims then discussed what had happened to
some employees who had been there when Ms. Eagles left for maternity
leave. The meeting ended shortly thereafter. No personnel forms were
filled out at this time. Ms. Eagles did not get the impression at this
meeting that Ms. Sims was working from a piece of paper or covering
specific items. Ms. Sims testified that she has no recollection of this
meeting.
Discussion and Conclusions
The issue presented for determination is whether Respondent violated
sections 7116(a)(1), (5) and (8) of the Statute /5/ by holding formal
discussions within the meaning of section 7114(a)(2)(A) /6/ on September
8, 1981 and November 2, 1981 without providing the Union with notice and
an opportunity to be present, and additionally by bypassing the Union
and dealing directly with bargaining unit employees at such meetings.
Since these were allegedly orientation sessions, the analysis must
start with the existing precedent of Department of Health, Education and
Welfare, Region IV, Atlanta, Georgia and Department of Health and Human
Services, Region IV, Atlanta, Georgia, 5 FLRA No. 58 (1982) (hereinafter
HHS, Atlanta). In that case, the stipulated record reflected that new
employees, including some bargaining unit employees, were required to
attend orientation sessions on the third Wednesday of each month. The
orientation sessions were conducted by personnelists from the regional
personnel office. The format consisted of the distribution of an
orientation packet and discussion, including questions and answers,
between the personnelists and employees concerning the subjects covered
by the materials in the packet as well as those set forth in an
established agenda. The packet and the agenda covered a range of
material including basic information on Federal employment and the
agency as well as various areas involving personnel policies, programs
and general conditions of employment, such as alcoholism and drug abuse,
equal employment opportunity, standards of conduct, training and career
development, labor relations, and conduct and discipline. The Authority
found that the required mandatory attendance of new employees at the
orientation sessions, the subject matter discussed, and the established
agenda for such discussions were included in the circumstances which
made the meetings formal discussions. It was not found to matter that
the orientation sessions were not limited to employees of one particular
bargaining unit nor that they were conducted by representatives of the
regional personnel office and that only basic information concerning
employment was disseminated. The Authority noted that the parties
stipulated, and the record revealed, that the subjects covered concerned
personnel policies, practices or other general conditions of employment.
The General Counsel contends that the meetings at issue come within
HHS, Atlanta and also have the indicia of formality set out by the
Authority in Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA No. 24 (1982) (hereinafter HHS, San Francisco). Respondent
argues that there are major differences between the meetings at hand and
the orientation sessions in HHS, Atlanta; that broad generalizations
from that decision are flawed by the stipulated record which does not
reveal the specifics of what happened; that the meetings in issue do
not meet the formality criteria set out in HHS, San Francisco; and were
not discussions as that term is properly used in the Statute.
It is not disputed that in the two meetings that are the subject of
this case an agency representative or representatives met with employees
in the unit. It is also clear that the Union was not afforded notice or
given the opportunity to be represented at either meeting.
The September 8, 1981 Meeting
As to the formality of the September 8, 1981 discussion under section
7114(a)(2)(A), it is noted that the individual who conducted most of the
discussion was a second-level supervisor and that the two top management
officials also were present and participated for a short period. The
meeting took place in the office's only conference room. The meeting
lasted one and one half hours. The meeting was not spontaneous. The
orientation session for new employees was obviously prearranged to be
one of the first items of business for the new employees' first day on
the job. There is no indication that the attendance of new employees
was other than mandatory. Since the employees had to complete personnel
forms at this time, it is clear that their identity and attendance at
the meeting were noted, even though their oral comments were not noted
or transcribed. Although no agenda was established for the meeting
beforehand, it is apparent from the recurring nature of the sessions
that there was a definite plan of things to be considered or done. The
District Manager covered the standard items he always covers with new
employees. The orientation packet, prepared in advance, covered a set
range of material. Similarly, Ms. Sims went through the orientation
packet and, by memory, provided the employees additional standard
information regarding policies and procedures. Upon consideration of
these factors, I conclude that the discussion was "formal" under section
7114(a)(2)(A).
Respondent contends that this presentation by management, consisting
basically of a speech or lecture, with opportunity for employees to ask
questions, does not constitute a "discussion" under section
7114(a)(2)(A). Respondent contends that unless there is some debate or
argument with employees, some give and take, some attempt to bargain
with employees, management's merely presenting them with basic
information on terms and conditions of employment does not rise to the
level of a "discussion."
The definition of "discussion" urged by Respondent has been adopted
by several Administrative Law Judges, and some such cases are currently
pending review by the Authority. /7/ However, these cases did not
involve orientation sessions for new employees. In HHS, Atlanta, as
noted above, the format of the orientation sessions for new employees
consisted of distribution of an orientation packet and discussion,
including questions and answers, between the personnelists and employees
attending the session on the subjects covered in the packet and in an
established agenda. Here, a similar format was followed by the
second-level supervisor for the new employees after brief speeches by
the manager and assistant manager. Although only one question was
asked, it is clear that, as in the past, the operations officer was
available and prepared to answer questions concerning the designated
subjects had they been raised. I conclude that the format of this
orientation session was so sufficiently similar to that in HHS, Atlanta
that, pending further clarification of this issue by the Authority, it
too constituted a formal discussion of personnel policies, practices,
and general conditions of employment, and Respondent was clearly bound
by this Authority precedent to afford the Union advance notice and an
opportunity to be represented at the meeting. /8/
As noted, it is concluded that the September 8, 1981 meeting
concerned personnel policies, practices, and general conditions of
employment. The orientation packets which were distributed contained
basic information on working for the Federal government and the agency,
pamphlets on retirement, life insurance, and health insurance, and
personnel forms containing the oath of office, insurance and tax forms.
The manager and the operations officer covered a range of subjects, such
as labor relations, working hours, breaks, leave, tardiness, and
restrictions on gifts and outside employment. The subjects covered were
substantially the same as those covered at the orientation sessions in
HHS Atlanta.
Inasmuch as the September 8, 1981 orientation session was a formal
discussion within the meaning of section 7114(a)(2)(A) of the Statute,
the Union was entitled to be given the opportunity to be represented.
Respondent violated section 7116(a)(1) and (8) of the Statute by denying
the Union this opportunity.
With regard to the allegation that the Respondent bypassed the Union
by holding the September 8, 1981 orientation session with unit
employees, the record is inadequate to sustain the General Counsel's
burden of establishing by a preponderance of the evidence that the
Respondent violated sections 7116(a)(1) and (5) of the Statute in
contradiction of its collective bargaining obligation. The evidence
discloses that the discussion was of an instructional nature on
apparently long-standing personnel policies, practices, and general
conditions of employment. There is no evidence that Respondent
attempted to bypass the Union and deal or negotiate directly with
employees, or urged employees to put pressure on the Union to take a
certain course of action, or threatened or promised benefits to
employees. See U.S. Department of the Air Force, 47th Air Base Group
(ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65 (1980); Division
of Military and Naval Affairs, State of New York, Albany, New York, 8
FLRA No. 71 (1982); Iowa National Guard and National Guard Bureau, 8
FLRA No. 101 (1982).
The November 2, 1981 Meeting
The evidence discloses that the brief meeting on November 2, 1981
between the operations officer and two unit employees took place in the
office of the operations officer, a second-level supervisor. Neither of
the two employees was a new employee. One was a reinstated employee and
the other was an employee transferring from another location. The
meeting took place immediately after a brief welcome by the assistant
manager in his office. There was no established agenda for the meeting.
It apparently lasted only a few minutes. Other than welcoming the
employees and engaging in small talk about other employees, the only
statement of substance initiated by the operations officer was the
comment that leave should be requested as far in advance as possible.
The evidence does not show the supervisor's response to the employee's
question about whether the dress code had changed. The evidence does
not show that a record was made of the meeting.
It is concluded that the General Counsel has not met the burden of
proving that the November 2, 1981 meeting was a "formal" discussion.
See HHS, San Francisco. The meeting was essentially a brief word of
kindly greeting by the second-level supervisor. It was unstructured and
no record of the meeting was made.
For the reasons discussed in connection with the September 8, 1981
meeting, a preponderance of the evidence also does not establish that
Respondent bypassed the Union in violation of sections 7116(a)(1) and
(5) of the Statute by holding the November 2, 1981 meeting.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of Health and Human
Services, Social Security Administration shall:
1. Cease and desist from:
(a) Failing to give the American Federation of Government
Employees, Local 1395, AFL-CIO, the opportunity to be represented
at orientation sessions for new employees in the bargaining unit
conducted by one or more representatives of the agency at which
personnel policies or practices or other general conditions of
employment are discussed.
(b) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Give the American Federation of Government Employees, Local
1395, AFL-CIO, the opportunity to be represented at orientation
sessions for new employees in the bargaining unit conducted by one
or more representatives of the agency at which personnel policies
or practices or other general conditions of employment are
discussed.
(b) Post at its facilities at 6349 South Cottage Grove,
Chicago, Illinois copies of the attached Notice marked "Appendix"
on forms to be furnished by the Authority. Upon receipt of such
forms, they shall be signed by the District Manager, and shall be
posted and maintained by him for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. The
District Manager shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Region Five, Federal Labor Relations Authority, Chicago, Illinois,
in writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
3. IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
bypass of the Union and any violation with respect to the November 2,
1981 meeting, be, and it hereby is, dismissed.
GARVIN LEE OLIVER
Administrative Law Judge
Date: November 24, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to give the American Federation of Government
Employees, Local 1395, AFL-CIO, the opportunity to be represented at
orientation sessions for new employees in the bargaining unit conducted
by one or more representatives of the agency at which personnel policies
or practices or other general conditions of employment are discussed.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL give the American Federation of Government Employees, Local
1395, AFL-CIO, the opportunity to be represented at orientation sessions
for new employees in the bargaining unit conducted by one or more
representatives of the agency at which personnel policies or practices
or other general conditions of employment are discussed.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region Five,
whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago, IL
60604, and whose telephone number is: (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel's exceptions were limited to the Judge's
dismissal of the section 7116(a)(1) and (5) allegation with respect to
the September 8, 1981 meeting. No exceptions were filed by either party
with respect to the Judge's dismissal of the allegations concerning the
November 2, 1981 meeting.
/2/ With respect to the General Counsel's exceptions regarding the
Judge's dismissal of the section 7116(a)(1) and (5) allegation of the
complaint concerning the September 8, 1981 meeting see Department of
Defense, National Guard Bureau, Texas Adjutant General's Department,
149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA No.
111 (1984), wherein the Authority concluded, in dismissing the section
7116(a)(1) and (5) allegation, that section 7114(a)(2)(A) of the Statute
does not itself give rise to an obligation to negotiate within the
meaning of the Statute. With respect to the Judge's finding that the
General Counsel failed to establish that a bypass occurred at the
September 8th meeting, see also Internal Revenue Service (District,
region, National Office Unit), 11 FLRA. 23 (1983), affirmed sub nom.
National Treasury Employees Union v. FLRA, 725 F.2d 126 (D.C. Cir.
1984).
/3/ The transcript is hereby corrected as set forth in the General
Counsel's unopposed motion. (General Counsel's Brief, p. 2).
/4/ On occasion, the Cottage Grove office does not receive the
orientation packet or personnel forms at the time an employee first
reports for duty. If that occurs, the supervisor to whom the employee
is assigned sees that the forms are completed when they arrive.
/5/ 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.
/6/ 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(.)
/7/ See U.S. Environmental Protection Agency, 3-CA-1528, OALJ 81-119,
decision of Judge Sternburg (June 11, 1981); Department of Defense,
National Guard Bureau, Texas Adjutant General's Department, 6-CA-210,
OALJ 81-121, decision of Judge Chaitovitz (June 12, 1981); National
Archives, 3-CA-993, OALJ 81-139, decision of Judge Dowd (July 21, 1981);
Bureau of Field Operations, Social Security Administration, San
Francisco, California, 9-CA-372, OALJ 81-145, decision of Chief Judge
Fenton (July 27, 1981).
/8/ As discussed infra, I find Respondent's arguments as to the lack
of any bargaining with the employees to be of great merit on the issue
of the alleged bypass.