17:0594(89)CA - HHS, SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA
[ v17 p594 ]
17:0594(89)CA
The decision of the Authority follows:
17 FLRA No. 89
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-855
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 be ordered to 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 and the General Counsel filed exceptions to the Judge's
Decision, and the General Counsel filed an opposition to the
Respondent's exceptions.
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, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, except as modified
herein.
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute by implementing certain changes in the work
assignments of unit employees before bargaining in good faith with the
Charging Party (AFGE) concerning the impact and implementation of those
changes had been completed. Noting the absence of exceptions to this
finding, the Authority agrees, for the reasons stated by the Judge.
The record further shows that on January 30, 1981, one of the
Respondent's supervisors, Dillon, held a meeting with four clerk-typists
to announce the changes in work assignments, to distribute the
Respondent's memorandum setting forth those changes and to instruct the
employees how to proceed. The Judge found that in addition to its
refusal to bargain, the Respondent also violated section 7116(a)(1), (5)
and (8) of the Statute, /1/ as the meeting was a "formal discussion"
within the meaning of section 7114(a)(2)(A) of the Statute, and the
Respondent had not afforded AFGE prior notice and an opportunity to
attend the meeting. /2/
We disagree. The Authority has recently held, in Bureau of
Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984),
that in order for the right of an exclusive representative to be
represented at a formal discussion to attach, all elements set forth in
section 7114(a)(2)(A) must be found to exist: (1) a discussion; (2)
which is formal; (3) between one or more representatives of the agency
and one or more employees in the unit or their representatives; (4)
concerning any grievance or any personnel policy or practices or other
general conditions of employment. In the circumstances of this case,
without passing on the other elements, the record does not establish
that the meeting was formal in nature within the meaning of section
7114(a)(2)(A) of the Statute. Thus, the meeting in question was held at
the employees' workplace, was spontaneously called, was conducted alone
by a first-level supervisor, was only about ten minutes in duration, and
had no formal agenda. Accordingly, the Authority finds that as the
General Counsel has failed to establish that the meeting in question was
"formal" in nature within the meaning of the Statute, the Respondent
cannot be found to have violated section 7114(a)(2)(A), and we shall
dismiss the allegations of the complaint in this regard. See Department
of Health and Human Services, Social Security Administration, Bureau of
Field Operations, San Francisco, California, 10 FLRA 115 (1982);
Department of Health and Human Services, Social Security Administration,
Bureau of Field Operations, San Francisco Region, 10 FLRA 120 (1982);
Veterans Administration Medical Center, Bath, New York and Veterans
Administration, Washington, D.C., 12 FLRA No. 107 (1983). Further, the
Authority specifically does not adopt the Judge's finding, at note 14 of
his Decision, that the Respondent's actions in this matter constituted a
clear bypass of the union in violation of section 7116(a)(5) of the
Statute. In our view, announcing the changes in the context of the
meeting in question did not constitute an attempt to deal directly with
unit employees concerning their conditions of employment or to undermine
the status of the Union as the exclusive representative of the
employees. See Defense Logistics Agency, Defense Depot Tracy, Tracy,
California, 14 FLRA No. 78 (1984).
With regard to the further allegation that the Respondent violated
section 7116(a)(1) of the Statute by virtue of certain statements to a
union representative, the Judge found that on February 2, 1981,
supervisor Dillon approached Chappell at her desk and asked to speak
with her privately. Instead, Chappell initiated a debate in the
presence of other employees regarding her right as a union
representative to have been informed of the meeting in question and to
attend all meetings with employees, and Dillon responded by criticizing
Chappell for not having waited until after the meeting to discuss the
matter. The Judge found, and the Authority agrees, that the remarks of
Dillon under the circumstances cannot reasonably be construed as tending
to have had a chilling effect on Chappell or the employees who were
present, and we shall dismiss the allegations of the complaint in this
regard. /3/ See, e.g., Department of the Navy, Portsmouth Naval
Shipyard, 7 FLRA 766, 778 (1982).
As a remedy for the section 7116(a)(1) and (5) violation found above,
the Judge recommended that the Authority order the Respondent to cease
and desist from "implementing changes in the working conditions of
employees" and to "rescind the changes in employees' work assignments
implemented February 2, 1981." The Authority concludes that such a
status quo ante remedy is not warranted in the circumstances of this
case. The record shows that the assignments were temporary in nature
and had all been discontinued prior to the hearing in this case. Thus,
in these circumstances when a status quo ante remedy would be
meaningless, /4/ the Authority concludes that a prospective bargaining
order should fully remedy the refusal to bargain violation found herein.
ORDER
Pursuant to section 7118 of the Statute and section 2423.29 of the
Authority's Rules and Regulations, the Authority hereby orders that the
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland shall:
1. Cease and desist from:
(a) Implementing changes in the working conditions of its employees
at its Field Support Unit Office without first affording the American
Federation of Government Employees, AFL-CIO, the employees' exclusive
bargaining representative, an opportunity to negotiate, upon request,
with respect to the procedures which management will observe in
implementing such changes and concerning appropriate arrangements for
employees adversely affected thereby.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
(2) Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its Field Support Unit Office, 620 Folsom Street, San
Francisco, California, 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 Assistant Regional Commissioner
for Field Operations, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, 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.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
in Case No. 9-CA-855 be, and they hereby are, dismissed.
Issued, Washington, D.C., April 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 implement changes in the working conditions of our employees
at the Field Support Unit Office without first affording the American
Federation of Government Employees, AFL-CIO, the employees' exclusive
bargaining representative, an opportunity to negotiate, upon request,
with respect to the procedures which management will observe in
implementing such changes and concerning appropriate arrangements for
employees adversely affected thereby. WE WILL NOT in any like or
related manner interfere with, restrain, or coerce our employees in the
exercise of their rights assured by the Statute.
(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, Region IX,
Federal Labor Relations Authority, whose address is: 530 Bush Street,
Suite 542, San Francisco, California, 94108, and whose telephone number
is: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-855
Daniel H. Green
For the Respondent
Stephanie Arthur, Esq.
For the General Counsel
Vince Morgante
For the Charging Party
Before: RANDOLPH D. MASON, Administrative Law Judge
Administrative Law Judge
DECISION
Statement Of The Case
This case arises under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq., and was initiated by a complaint filed
on April 6, 1981, by the Regional Director of the Federal Labor
Relations Authority, Region IX, San Francisco, California, against the
Department of Health and Human Services, Social Security Administration,
Baltimore, Md., ("Respondent").
The complaint alleges that respondent violated sections 7116(a)(5)
and (1) of the Statute by unilaterally implementing certain changes in
work assignments before bargaining was completed. It also alleges a
violation of Sec. 7116(a)(1), (5), and (8), arguing that these changes
were announced during a "formal discussion" under Sec. 7114(a)(2)(A) and
that the union was not afforded an opportunity to be present. Finally,
the complaint alleges that respondent violated Sec. 7116(a)(1) when a
supervisor later "reprimanded" a union representative in front of other
employees for having entered the above meeting. Respondent denies all
of the above allegations.
A hearing was held in this matter at San Francisco, California,
before the undersigned on June 16 and 17, 1981. All parties were
represented and afforded full opportunity to be heard, adduce relevant
evidence, and examine and cross-examine witnesses. The parties filed
briefs which have been duly considered. Based on the entire record
herein, including my observation of the witnesses and their demeanor,
the exhibits, stipulations, and other relevant evidence adduced at the
hearing, I make the following findings of fact, conclusions of law, and
recommended order:
Findings of Fact
At all times material hereto, the American Federation of Government
Employees, AFL-CIO ("union") was the exclusive representative of certain
employees in Region IX, San Francisco, Bureau of District Office
Operations, Social Security Administration, Department of Health and
Human Services. The alleged violations occurred at respondent's Field
Support Unit. The Refusal to Bargain
During the period in question, Respondent's Field Support Unit
processed SSI cases before and after they were heard by administrative
law judges. About 15 GS-10 claims authorizers reviewed these cases for
payment purposes. Other employees at the GS-5/6 level located folders
prior to hearings. The clerical and mailroom duties were performed by
GS-3/4 clerk typists.
On or about January 19, 1981, one clerk typist and one part-time
"work study student" at the Field Support Unit resigned, leaving a
shortage in the clerical typing pool. On January 26, Isaac Williams,
the respondent's manager, decided that since he could not rehire due to
a hiring freeze, he should assign the mailroom clerk to the typing pool,
and use the GS-10 claims authorizers to perform the mailroom duties. He
also decided to eliminate the clerical "pool" by assigning each of three
clerk typists (including the one who had previously worked in the
mailroom) to a separate group of five named claims authorizers. /5/
Previously, the clericals had handled any work given to the typing pool
by any of the 15 authorizers. On January 26, 1981, Williams sent his
proposed changes to the union. The memorandum was entitled "Emergency
Request for Consultation at Your Earliest Possible Convenience;
Proposal for change-- effective date 02-06-81." (This was a
typographical error; the effective date should have read "February 2,
1981.") After explaining the changes in the typing pool, the memorandum
addressed the issue of mail preparation as follows:
Claims examiners (authorizers) will be responsible for the
preparation/distribution of the incoming/outgoing mail. The
responsibility will be rotated on a weekly basis and claims
examiners will not be expected to take their "fair share" (i.e.
regular daily case assignments) during their tour of duty in the
mail room.
Preparation of the mail will not include lifting of mail bags
or transport of the mail outside the mail room . . . .
The memorandum included a schedule in which each claims authorizer
was assigned mailroom responsibilities for a specified one-week period.
The first authorizer was assigned for the "week of Feb. 02." The last of
the 15 authorizers was assigned the week of May 11; thus the schedule
covered a 15 week period. Under this plan each authorizer would work in
the mailroom for one week every 15 weeks.
On January 29, 1981, at 2:00 p.m. Williams met with union
representatives Gayla Chappell and Kathy Rothero to negotiate the
proposed changes. The union rejected the respondent's proposals and
submitted a written list of seven counter-proposals. Essentially, the
union proposed to retain the status of the typing pool as it presently
existed and to eliminate the shortage in the pool by borrowing a
clerical employee who had been assigned to the folder location section.
The latter function would be performed by a work-study student. By
eliminating the shortage in the typing pool in this manner, the mailroom
function would continue to be performed by clerk-typist Joel Monkarsh,
and the claims authorizers would not be required to work in the
mailroom. Williams rejected all of the above counter-proposals. /6/
During the course of the January 29 negotiating session the union
emphasized that the assignment of mailroom duties to claims authorizers
and the elimination of the typing pool would have serious adverse
effects on the employees. The union contended, inter alia, that the
claims authorizers would be affected, in part, as follows: (1) the
proposal would impede their ability to perform their regular claims work
and thus result in lower appraisals and performance audits; (2) the
performance of GS-3 mail duties could result in downgrading the GS-10
claims authorizer position; and (3) some of the authorizers were
physically incapable (due to arthritis, etc.) of performing certain
mailroom duties such as opening heavy mailbags, and others would find it
difficult to stand and bend for several hours. Williams, on the other
hand, took the position that the employees would not be adversely
affected. With specific regard to the union's second point, he stated
that he had spoken with the regional personnel department and had been
told that his proposal would not cause a downgrading. The union stated
that it would be necessary to have the latter assurance in writing to
protect the authorizers. The union also stated that it would be
necessary for the parties to devise methods to ensure that the
performance audits and appraisals of authorizers took into consideration
the fact that time had been spent away from their regular claims duties
when they were in the mailroom. They were convinced the delays during
the mailroom duties would adversely affect their regular case work.
None of the above matters were resolved during the meeting.
The union also made it clear that if respondent insisted on making
the authorizers perform mailroom duties, appropriate arrangements would
have to be negotiated for employees who were physically incapable.
Although there was some discussion about having two authorizers work in
the mailroom at the same time, this question was not resolved.
The union also argued that the clerk-typists would be adversely
affected by eliminating the typing pool. Under the pool concept, each
typist had handled up to his or her capacity, whereas the new system
might result in one or more typists accumulating a large backlog.
Although no specific proposal was made at the time, the union indicated
that a procedure would have to be worked out for the re-assignment of
these backlogs. Williams evaded this discussion by changing the
subject. When the union stated that such backlogs could have an adverse
effect on appraisals and performance audits, Williams simply disagreed.
After about 45 minutes of discussion, Williams indicated that the
session was over. The union representatives told him that further
negotiating would be necessary since many issues had not yet been
resolved.
Later that same day, Thursday, January 29, Williams told the
supervisors for the authorizers and clerk-typists to inform the
employees and implement the plan on Monday, February 2, 1981.
Early the next morning, Friday, January 30, union representative
Chappell told Williams that she wanted to continue the negotiations
started on the previous day and she requested official time for that
purpose. Williams responded that the negotiations were over and that he
was going to implement the changes. /7/ Chappell protested that there
were still a number of issues to discuss concerning both the substance
and the impact of the proposals. Thereafter Chappell immediately
prepared a memorandum to Williams in which she requested further
bargaining and stated that at the January 29 meeting she had initiated
bargaining on the substantive issues as well as the impact and
implementation of Williams' proposed changes. She stated that she was
available to meet with him that day as well as the following week. /8/
In accordance with customary procedure, she placed the memorandum in
Williams' mailbox at about noon, but he did not notice it until he
checked his mailbox later that afternoon when Chappell had already gone
for the day. On Monday, February 2, Williams implemented his proposed
changes without further negotiation. There was no pressing need to
eliminate the typing pool and a brief delay in implementation of the
remainder of his plan would not have been an undue burden on the office.
After 15 weeks, the authorizers were no longer required to work in the
mailroom. The Alleged "Formal Discussion"
On Friday, January 30, Marge Dillon, the supervisor for the
clerk-typists, called a meeting of four clerk-typists to announce the
changes made by Williams, to instruct them how to proceed, and to
distribute a memorandum setting forth these changes. /9/ Her comments
included the elimination of the typing pool and assignment to individual
claims authorizers. The memorandum stated that the changes would be
effective on Monday, February 2, 1981. After announcing the above
changes, Dillon gave one of the employees, Brenda Lowe, a special
assignment which affected Lowe only. /10/ The meeting lasted about ten
minutes; the employees did not ask any questions or make any comments.
/11/
The above meeting was held in the back of the office. The union had
not been invited to attend. When union representative Chappell (a
claims authorizer) saw that the above meeting was in progress, she
"walked into the meeting to observe what was going on." Dillon asked
what Chappell wanted. Chappell stated: "I have a right to be here as a
union representative. You can't hold meetings without the union
present." Dillon explained that this was just a "training session"
concerning the memorandum she had distributed to the clerical employees.
She gave Chappell a copy of the memorandum and told her she could stay.
Chappell then said: "It appears from this that you're discussing
changes that I have not reached agreement on with the manager." Dillon
responded that Williams had told her to inform the employees of the
changes. At that point Chappell had to leave to answer a telephone
call, and when she returned, the meeting was over. The February 2
Confrontation
On February 2 Chappell was sitting at her desk when Dillon approached
her and said she wanted to talk privately to Chappell outside the work
area. Chappell immediately became defensive because she assumed that
she was going to be disciplined. She asked what Dillon wanted to
discuss. Dillon stated that it concerned "your disrupting /12/ the
meeting on Friday." Chappell said she couldn't discuss it that day
because her union representative was on leave. She added, in a loud
voice however, that she had the right to attend all meetings with
employees and that Dillon had committed an unfair labor practice by
failing to invite the union to the meeting on January 30. Dillon raised
her voice in response to this accusation and said that the meeting had
only been a training session and that Chappell had no right to be there.
She also said that Chappell should have waited to talk to Dillon after
the meeting, and if Chappell did not like it she could file an unfair
labor practice charge. Soon thereafter Chappell said she now wanted her
union representative present during further discussion; Dillon agreed
and the meeting was terminated since the representative was not
available. Several employees were sitting nearby and heard the
conversation.
Conclusions of Law
The Refusal to Bargain
The first issue for consideration is whether respondent refused to
complete bargaining with respect to the impact and implementation of its
decision to have claims authorizers work in the mailroom and to
eliminate the typing pool and then unilaterally implemented this
decision. The General Counsel alleges that Williams, respondent's
manager, violated Sec. 7116(a)(5) and (1) when he refused to bargain
about these issues as required by sections 7106(b)(2) and (3) of the
Statute. Respondent takes the position that on January 29, 1981,
Williams fully discussed all issues raised by the union and either
reached an agreement or came to an impasse on all issues. Thus
respondent contends that Williams was fully justified when, on January
30 he refused to engage in further bargaining with the union.
The facts of record do not support respondent's position. Although
respondent did bargain about some issues raised by the union on January
29, respondent terminated the negotiations after 45 minutes without
discussing certain matters raised by the union. At the conclusion of
the meeting, the union reminded Williams that certain matters had been
raised but not discussed, and that they would have to be negotiated at a
later time. For example, during the course of the meeting the union had
made it clear that if Williams insisted on having claims authorizers
perform mailroom duties, methods would have to be devised under which
time spent away from regular duties would be taken into consideration in
performance audits and appraisals. Similar impact and implementation
issues were raised with respect to the clerk-typists.
On the morning of January 30, the union representative told Williams
that she wanted to continue the negotiations started on the previous
day. Williams said that the negotiations had been completed and that he
was going to implement his plan. The union representative protested
that there were still a number of issues to discuss concerning both the
substance and the impact of the proposals. Later that day she repeated
her request in a memorandum to Williams. Nevertheless, respondent
implemented the plan on January 30 and February 2, 1981, without
permitting further negotiations.
Section 7103(a)(12) defines collective bargaining and requires that
the parties meet at reasonable times and bargain in a good-faith effort
to reach agreement with respect to conditions of employment. Here
management arbitrarily decided that 45 minutes of bargaining in one
meeting on January 29 fulfilled respondent's obligation under the
Statute. When the union requested further bargaining the next day,
respondent knew full well that the union had certain specific matters
concerning appropriate arrangements for adversely affected employees and
the manner of implementation of the changes about which it wanted to
negotiate. Respondent's refusal to negotiate at this point, and the
subsequent unilateral implementation, clearly constituted a violation of
section 7116(a)(5) and (1) of the Statute. /13/ Formal Discussion
The next issue for consideration is whether respondent violated
section 7114(a)(2)(A) by failing to notify the union of its January 30
meeting with the clerk-typists and afford the union an opportunity to
attend. That section 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 . . . .
It is clear that the meeting in question was "formal" in nature and
respondent does not seriously dispute this. A more troublesome question
is whether the meeting constituted a "discussion" in view of the fact
that supervisor Dillon was the only person who spoke. She merely
announced the changes that were going to occur, i.e. the elimination of
the typing pool and assignment to individual claims authorizers, and
explained how the new operation would be structured. The employees
merely listened to the announcement and instructions.
The Statute, as applied to the instant case, requires a "discussion
between" the supervisor and one or more employees. This phrase is
commonly understood as a conversation in which two or more parties
participate; it does not appropriately describe an announcement to a
group. Furthermore, although the word "discussion" is sometimes used to
describe the comments of an individual, it usually contemplates a debate
or argument between two or more persons. Webster's New World Dictionary
(2nd Ed. 1970). Thus to conclude that the announcement in the instant
case constitutes a "discussion between" Dillon and her employees
constitutes a strained interpretation of the Statute. However, section
10(e) of Executive Order 11491, the predecessor of section
7114(a)(2)(A), also required the opportunity for representation at
"formal discussions between management and employees," and the Assistant
Secretary did not require the participation of the employees in the
"discussion." U.S. Department of the Army, Transportation Motor Pool,
Fort Wainwright, Alaska, 3 A/SLMR 290, A/SLMR No. 278 (1973) (employee
refused to participate); Department of Health, Education and Welfare,
Region IX, San Francisco, California, 8 A/SLMR 1273, A/SLMR No. 1156
(1978). /14/ Nor did he require that such conversations constitute an
attempt to bargain or negotiate with the employees for Sec. 10(e) to
apply. Rocky Mountain Arsenal, Denver, Colorado, 7 A/SLMR 982 (1977).
Under Sec. 7135 of the Statute, I am constrained to follow the Assistant
Secretary's view since "decisions issued under Executive Order 11491 . .
. shall remain in full force and effect . . . unless superceded" by the
Statute, regulations, or Authority decisions. /15/ Thus, I must
conclude that the January 30 meeting constituted a "formal discussion."
/16/
Respondent contends that the subject matter of the meeting did not
concern a "general condition of employment." /17/ I disagree. The
elimination of the typing pool and the concomitant assignment of
clerk-typists to individual claims authorizers affected the working
conditions of these unit employees generally. This change affected all
clerk-typists and claims authorizers to whom the former were assigned;
respondent's argument that the discussion only involved minor
operational changes peculiar to a few individual employees finds no
support in the record.
Since respondent failed to give the union notice and an opportunity
to attend the entire discussion as required by Sec. 7114(a)(2)(A), I
conclude and hold that respondent violated Sec. 7116(a)(8), (5) /18/ and
(1) of the Statute. February 2 Confrontation
The final issue for consideration is whether Dillon's remarks to
union representative Chappell on February 2 tended to have a chilling
effect on several unit employees in violation of Sec. 7116(a)(1). That
section prohibits an agency from interfering with, restraining, or
coercing any employee in the exercise by the employee of his protected
statutory rights. Section 7102 gives each employee the right to form,
join, or assist any labor organization.
On January 30, although she had not been invited, Chappell entered a
formal meeting being conducted by Dillon with employees. Chappell
brought the meeting to a halt by complaining that she had not been
invited and that the failure to do so constituted an unfair labor
practice. Dillon gave Chappell a copy of the memorandum she had given
the employees concerning the meeting and invited Chappell to stay.
Chappell further complained that the meeting itself was improper since
she had not finished bargaining on the changes that were being
announced. Dillon responded that she had been told by the manager to
hold this meeting.
The following Monday, February 2, Dillon approached Chappell at her
desk and, since other employees were present, asked to speak to her
privately. Chappell insisted on knowing what Dillon wanted to discuss.
Dillon said "it concerns your disrupting the meeting on Friday."
Chappell then loudly contended that she had a right to attend all
meetings with employees. Dillon argued that this was merely a "training
session" and that Chappell had no right to attend; she further stated
that Chappell should have waited to talk to her after the meeting and
that if she disagreed she could file an unfair labor practice charge.
Chappell's insubordinate actions at the January 30 meeting clearly
constituted an improper means of asserting her statutory rights.
Indeed, the union did have a right to be given an opportunity to attend
under Sec. 7114(a)(2)(A), but the Statute does not give the union a
license to cause disruption at such formal meetings with employees in a
manner demeaning to a supervisor. Thus it is not surprising that Dillon
wanted to inform Chappell that she disapproved of the disruption.
Dillon chose not to say anything disparaging at the January 30 meeting
and, in fact, invited Chappell to stay. On February 2 Dillon asked to
speak privately with Chappell but the latter forced a public
confrontation. Chappell raised her voice and argued she had a right to
attend such meetings and Dillon took an opposing point of view. This
was simply a legal argument which did not tend to have a chilling effect
on Chappell or the employees who were listening. Moreover, Dillon's
disapproval of Chappell's "disrupting" the meeting, in the context of
this conversation, did not tend to have a chilling effect. The word
"disrupt" was a mild choice of words to describe Chappell's behavior.
Although that word tended to cast Chappell in a slightly negative light,
in the same conversation Dillon showed respect for Chappell's statutory
right to have her union representative present and urged her to follow
the statutory unfair labor practice procedure. Under all these
circumstances, Dillon's remarks would not have tended to cause the
employees to refrain from exercising their statutory rights. Therefore
I find no independent violation of Sec. 7116(a)(1).
In view of the foregoing I recommend that the Authority adopt the
following:
ORDER
Pursuant to 5 U.S.C. 7118(a)(7) and Sec. 2423.26 of the Final Rules
and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby ORDERED
that the Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Implementing changes in the working conditions of employees
at the Field Support Unit office prior to completing negotiations
with the American Federation of Government Employees, the
exclusive representative of employees at the Field Support Unit,
concerning the impact and implementation of the change.
(b) Holding or conducting formal discussions with bargaining
unit employees concerning changes in general working conditions
without first providing, by appropriate advance notice, the
exclusive representative, American Federation of Government
Employees, an opportunity to be represented at such formal
discussions.
(c) In any like or related manner, interfering with,
restraining or coercing 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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute;
(a) Rescind the changes in employees' work assignments
implemented February 2, 1981, and restore the assignments in
effect prior thereto.
(b) Meet and negotiate, upon request, with the Union regarding
the impact and implementation of the proposed changes in working
conditions of employees at the Field Support Unit to the extent
consonant with the Statute and regulations.
(c) Post at the Field Support Unit Office, 620 Folsom Street,
San Francisco, California, 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 Assistant
Regional Commissioner for Field Operations, 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. Said officer
shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal
Labor Relations Authority, 530 Bush Street, Suite 542, San
Francisco, California 94108, in writing, within 60 days from the
date of this order as to what steps have been taken to comply
herewith.
RANDOLPH D. MASON
Administrative Law Judge
Dated: September 28, 1981
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
We hereby notify our employees that:
WE WILL NOT unilaterally implement changes in the working conditions of
employees at the Field Support Unit, Social Security Administration,
prior to completing our negotiations with American Federation of
Government Employees, the exclusive representative of employees at the
Field Support Unit, concerning the impact and implementation of the
change. WE WILL NOT conduct formal discussions with employees at the
Field Support Unit concerning changes in their general working
conditions without first providing the American Federation of Government
Employees, the exclusive representative, notice and the opportunity to
be represented at such formal discussions. 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 rescind the changes
in employees' working conditions implemented February 2, 1981, and
restore assignments in effect prior thereto until we have negotiated to
the extent consonant with law and regulations with the American
Federation of Government Employees regarding the impact and
implementation of said changes.
(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
question concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region IX, the Federal Labor Relations Authority, whose address is: 530
Bush Street, Suite 542, San Francisco, California, 94108, and whose
telephone number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides:
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.
/2/ Section 7114(a)(2)(A) provides:
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 practices or other general condition of employment(.)
/3/ In so finding, however, we find it unnecessary to pass upon, and
do not adopt, the Judge's characterization of Chappell's actions at the
January 30th meeting.
/4/ In view of this conclusion, the Authority finds it unnecessary to
apply an analysis of the factors enumerated in Federal Correctional
Institution, 8 FLRA 604 (1982).
/5/ He wanted to eliminate the pool because he felt one clerical was
not doing his share of the workload.
/6/ However, he did ultimately accept, in part, two other proposals
made by the union concerning the manner in which the "fair share" of new
cases are received, "queried," and distributed by the clericals to the
claims authorizers.
/7/ Williams told Chappell that he had heard there might be a
question about whether the authorizers wanted to work in pairs in the
mailroom, and that he was still willing to discuss that single issue if
the union desired to do so. He was willing to accommodate the
employees, if possible, on this issue.
/8/ At this point the union was still under the impression that
Williams was not going to implement until Friday, February 6, due to the
typographical error in Williams' January 26 memorandum. I reject
Williams' testimony that he told the union on January 29 and 30 that he
was going to implement his plan "on February 2." Williams was also
unaware of this error, and assumed the union knew he would implement his
changes on Monday, February 2, 1981.
/9/ The supervisor of the claims authorizers did not call a meeting
and merely announced the changes in a memorandum.
/10/ Lowe worked in a different section away from the other clericals
and was now given the additional duty of answering the telephone at the
front desk for two hours a day.
/11/ Chappell testified that during her absence from the meeting Lowe
had asked for more details about her special assignment; however, she
based her testimony on hearsay which she herself characterized as
"pretty vague." I have relied upon the credible testimony of Marge
Dillon that no questions were asked or comments made by employees.
/12/ Chappell testified that Dillon used either the word "interrupt"
(Tr. 47; 80) or "disrupt" (Tr. 81) whereas Dillon only recalled using
the word "disrupt."
/13/ Respondent could have negotiated on Friday, January 30 before
the ultimate implementation on Monday, February 2; moreover, if it
became necessary, the effective date could have been postponed for a
brief period without unduly interfering with the efficient operation of
the respondent activity.
/14/ I recognize that the subject matter of the discussion in the
after case would not meet the statutory requirement of a "general
condition of employment", Department of Defense, U.S. Navy, Norfolk
Naval Shipyard, 1 FLRA 240 (1979), but the holding as to whether a
"discussion" occurred has not been overruled.
/15/ Although the question was not addressed, it appears that the
Authority may have already accepted this view sub silentio in Norfolk
Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22 (1981) where an
announcement was made and no employee participation was noted.
/16/ In reaching this conclusion, I have been constrained to
respectfully disagree with the result reached by my colleagues:
National Archives, Case No. 3-CA-993, OALJ-81-139 (July 21, 1981) (Judge
Dowd); Bureau of Field Operations, Social Security Administration, San
Francisco, California, 9-CA-372, OALJ-81-145 (July 27, 1981) (Chief
Judge Fenton); Department of Defense, National Guard Bureau, Texas
Adjutant General's Department, 6-CA-210, OALJ-81-121 (Judge Chaitovitz);
U.S. Environmental Protection Agency, Case No. 3-CA-1538, OALJ-81-119
(Judge Sternburg).
/17/ It is not alleged that any grievance, personnel policy or
practice was involved.
/18/ Since respondent's unilateral change constituted a clear bypass
of the union, and therefore a refusal to bargain, Sec. 7116(a)(5) was
violated; I need not decide whether a Sec. 7116(a)(5) violation could
have been based solely on the Sec. 7114(a)(2)(A) violation. See,
Department of Health, Education and Welfare, 5 FLRA No. 58 (1981).