[ v20 p5 ]
20:0005(2)CA
The decision of the Authority follows:
20 FLRA No. 2
UNITED STATES DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2513, AFL-CIO
Charging Party
Case No. 2-CA-30604
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions, 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
entire record in this case, the Authority hereby adopts the Judge's
findings, conclusions and recommendations only to the extent consistent
herewith.
The Judge found that the United States Department of Labor,
Employment Standards Administration (the Respondent) conducted a formal
discussion with certain of its employees on May 11, 1983, and that by
failing to give American Federation of Government Employees, Local 2513,
AFL-CIO (the Union) an opportunity to be represented, the Respondent
failed to comply with section 7114(a)(2)(A) of the Statute /1/ thereby
violating section 7116(a)(1), (5) and (8). /2/
Subsequent to the Judge's Decision herein, the Authority concluded
that actual representation by an exclusive representative at a formal
discussion is sufficient to demonstrate compliance with the requirement
of section 7114(a)(2)(A) of the Statute that such an exclusive
representative "be given an opportunity to be represented." /3/ The
record shows, and it is not contested, that nine or ten Union officials
and stewards were among the approximately 275 employees present at the
meeting in question. Accordingly, as the record demonstrates that the
Respondent complied with the requirements of section 7114(a)(2)(A), it
did not violate section 7116(a)(1), (5) or (8) of the Statute as
alleged, and the complaint shall be dismissed in its entirety. /4/
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-30604 be, and it
hereby is, dismissed.
Issued, Washington, D.C., September 5, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-30604
Ronald Robbins, Esq.
For the Respondent
Jon Steen, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on October 31,
1983 by the Regional Director of the Federal Labor Relations Authority,
New York, NY, a hearing was held before the undersigned on January 9,
1984 at New York, NY.
This is a proceeding under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It is based on a first
amended charge filed on October 12, 1983 by American Federation of
Government Employees, Local 2513, AFL-CIO (herein called Local 2513, or
the Union) against United States Department of Labor, Employment
Standards Administration (herein called Respondent.)
The Complaint alleged, in substance, that on or about May 11, 1983
Respondent held a meeting with Wage and Hour compliance specialists, who
were unit employees, and discussed, inter alia, personnel policies and
practices and other general conditions of employment. It was further
alleged that such a meeting constituted a formal discussion within the
meaning of Section 7114(a)(2)(A) of the Statute; that the Union was not
afforded the opportunity to be present-- all in violation of Section
7116(a)(1), (5), and (8) of the Statute.
Respondent's Amended Answer, filed on January 3, 1984, denied the
aforesaid allegations of the Complaint, as well as the allegations that
the Union is the constituent local of the National Council of Field
Labor Locals of AFGE and acting as an agent on its behalf. It also
denied the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. The Employment Standards Administration, as part of the
Department of Labor, has various subdivisions, including the Office of
Workmen's Compensation, the Wage and Hour Division, and a few smaller
divisions. There are 10 regions of the Department of Labor. Region 2
comprises New York, New Jersey, Puerto Rico and the Virgin Islands.
2. At all times material herein the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO (Council)
has been recognized as the exclusive representative of all employees
stationed throughout the nation in field duty stations of the Department
of Labor with specified exclusions from said unit.
3. The Council includes 23 local unions, one of which is the Union
herein-- Local 2513. Jesse Rios, president of the Council, testified
that a charter was issued to it by the National AFGE; that the Council
represents the latter for collective bargaining on behalf of all the
local unions and the Department's employees. Further, Local 2513 is the
primary representative of the Council for Region 2 of the Department,
although another local union is the representative in Puerto Rico.
Peter Richardson, president of Local 2513, testified that said local
Union has represented all unit employees in Region 2 except for the Wage
and Hour employees in Puerto Rico. His testimony reflects that Local
2513 has participated at formal discussions with management, meetings
involving unit employees, and handled 100 grievances during the past
year.
Despite Respondent's denial, I find that at all times material
herein, Local 2513, as alleged in the Complaint, was a constituent local
of the Council; that said local was an agent acting on behalf of the
Council in representing the unit employees of Region 2 of the
Department.
4. Both the Department of Labor and the Council are parties to a
collective bargaining agreement covering all employees in the nation in
field duty stations of the Department. The agreement, which became
effective on August 17, 1978, has been extended through August 16, 1984
in a written memorandum of understanding executed by the parties on July
27, 1982.
5. The aforesaid collective bargaining agreement provides in Article
1, Section 1(D) that the Council shall be given the opportunity to be
present at formal discussions between Management and bargaining unit
employees concerning grievance, personnel policies and practices, and
other matters affecting general working conditions of bargaining unit
employees. /5/
6. During negotiations between the parties leading to the said
collective bargaining agreement, and in October, 1982, the Union and
management agreed as follows: that where a staff meeting would be held
whereat the agency convened employees and restated policy, office
practices, or working conditions, there would be no requirement or
obligation on the part of management to notify the Union in advance of
the meeting; that, under such circumstances, there would be no
requirement that the Union have the opportunity to have a representative
present at such meeting. /6/
7. In late April, 1983 /7/ Union official Richardson wrote a letter
to Doris Wooten, Respondent's Regional Administrator stating that he
understood a meeting would be held on May 11 re items that would affect
bargaining unit employees, and he requested that the Union be
represented thereat.
8. By letter dated May 3 Wooten replied to Richardson and denied his
request. She based this denial on the fact that the May 11 agenda would
be limited to a discussion of the new Migrant Seasonal Worker's
Protection Act (MSPA). Wooten explained that Associate Deputy Under
Secretary Berrington would explain the background and legislative
history of the Act, as well as clarify unanswered policy issues relating
thereto. Accordingly, Wooten stated, it was not felt that formal union
representation was appropriate.
9. The scheduled meeting, at which attendance was mandatory, was
held on May 11 in a large auditorium at the Turf Inn, Albany, NY. It
was attended by about 275 employees from the New York and Boston regions
of the Wage and Hour Division. /8/ Included in the group were
compliance specialists, supervisors and training instructors.
Representatives of management included Craig Berrington, Associate
Deputy Under Secretary of the ESA; Herbert Cohen, Deputy Administrator
of the Wage and Hour Division, Washington, DC; Doris Wooten, Regional
Administrator ESA, New York Region. Various other representatives from
Washington, DC, as well as officials from the New York and Boston
regional offices, also were present thereat.
10. After preliminary introduction by Doris Wooten at the May 11
meeting, Berrington addressed the group and explained the new farm labor
law (MSPA) to the employees. Questions were asked in regard thereto and
the management official answered such queries. About one hour was
devoted to the explanation and discussion of the new statute.
Thereafter a compliance officer asked Berrington whether the new law
would affect the likelihood of Region 2 getting more GS-12 positions.
Berrington stated that the GS-12's would be announced as previously;
that management felt all jobs should be at a career level of GS-12 but
classification standards made it difficult to do so. He further
mentioned that the classification of GS-12 was being considered by OPM
and the Department-- that it was being viewed carefully. In respect to
particular personnel plans for GS-12's, Berrington stated that Cohen
could better respond to that matter.
11. Upon addressing the employees, Cohen stated that a staffing plan
to determine the number of GS-12's for each office or region was being
considered and developed. /9/ It would be based on the percentage of
compliance officers in all grades to those of GS-12 within each office
or region. The ratios, he commented, had not been fixed, nor had it
been determined whether it would be applied on a regional basis or area
office by area office within a particular region. Questions had been
asked by some employees concerning this because of the fear that if the
ratio ceiling in each area office would be lowered, some GS-12's might
have to transfer to another office or be downgraded.
12. After Cohen finished his discussion re the GS-12 situation,
Berrington spoke again to the employees. Compliance specialist William
Devins asked a question re accountability. The latter term refers to a
type of quota system that each office must meet. Devins inquired as to
why Washington raised quotas for a field office after the latter had
sent in its program plans. Berrington answered that there was some "low
balling" in the field-- people were not stating precisely how much work
they could do since they didn't want to extend themselves. Therefore,
according to Berrington, Washington jacked up the quotas. Devins said
that the employees grumbling was not due to a refusal to work, but the
problem arose because of the restricted performance standards which
required the completion of cases in 45 days. One employee also
mentioned that some offices were submitting statistics on performance
standards which couldn't be met by the workers. Berrington replied that
he was aware of a certain supervisor exaggerating statistics and that
action would be taken against individuals if management found out about
such conduct. He also stated that if an employee wanted a GS-12
classification, he could ask for a desk audit. However, Berrington
said, an employee did so and the employee's level of work wasn't even
GS-11 work.
13. In addition to remarks by Berrington and Cohen, several comments
to the employees were made by Doris Wooten. She mentioned that she was
in the process of negotiating with regional personnel offices re pending
requests for GS-12's; that it was hoped an announcement as to those
positions would be made within the coming week.
Conclusions
The ultimate question to be determined herein is whether the meeting
between management and its employees on May 11, 1983, which was convened
as a training session to discuss the Migrant Seasonal Worker's
Protection Act, resulted in a formal discussion so as to require
notification to the Union and an opportunity for it to be present
thereat.
Although conceding that the Union was not so notified, nor afforded
an opportunity to appear as the bargaining representative in May 11,
Respondent advances three contentions to justify its refusal to permit
the Union to so attend. It maintains that (1) the meeting was not a
formal discussion within Section 7114(a)(2)(A) of the Statute; (2) the
Union clearly waived its bargaining right in this regard by virtue of
negotiations (oral agreements) in 1982 between the parties, whereby it
was agreed that a reiteration of policies and practices did not "trigger
the prior notification requirements for formal discussions"; (3) in any
event, the Union had actual notification of the meeting and nine or ten
Union officials from the New York region were present at the meeting--
all of which constituted proper notification by the Respondent.
The right of the bargaining agent to be represented at a formal
discussion between management and its employees stems from Section
7114(2)(A) of the Statute. That provision recites as follows:
(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 conditions of employment. . . .
It must be established that any meetings called by management are, in
essence, "formal discussions" in order to invoke the agency's obligation
to afford the union an opportunity to be represented. Certain
discussions have not been deemed to be "formal" in nature. Thus,
information gathering sessions were not considered as falling with the
proscriptive language of the foregoing statute. Internal Revenue
Service and Brookhaven Service Center, 9 FLRA No. 132(1982). See also
Kaiserslautern American High School, Department of Defense Dependents
Schools, Germany North Region, 9 FLRA No. 28(1982). Further, an
impromptu meeting to discuss the concerns of two employees was held not
to constitute a "formal discussion." Office of Program Operations, Field
Operations, Social Security Administration, San Francisco Region, 9 FLRA
No. 9(1982). While the burden of establishing that a meeting was
"formal" in nature rests upon the General Counsel, the Authority has set
forth certain factors which, among other things, must be established to
demonstrate that a formal discussion occurred. Thus, in Veterans
Administration Medical and Regional Office Center, Cheyenne, Wyoming, 13
FLRA No. 70, where it was held that General Counsel did not meet its
burden, the Authority concluded the facts did not reveal: (a) whether
the individual who held the discussions /10/ was merely a first-level
supervisor or was higher in the management hierachy; (b) how long the
meeting lasted; (c) how the meeting was called; (d) whether a formal
agenda was established for the meeting; (e) whether attendance was
mandatory at the meeting.
In contending that the meetings on May 11 was not a formal
discussion, Respondent insists that the training course on the new farm
bill was the sole purpose of the meeting; that it did not initiate any
discussion re personnel matters or employment condition, but merely
replied to questions in that regard; and that management's statements
constituted a reiteration or restatement of existing agency policy.
Although it is true that the meeting herein was called to discuss the
MSPA, the record reflects that considerable discussion took place
regarding other matters. Upon questions being propounded by employees
re the status of GS-12 positions, and the entitlement thereto by Region
2 compliance officers, management launched a discussion concerning these
grades. Thus, Cohen talked about the plan, which was being developed to
staff GS-12's based on the percentage of compliance officers in all
grades to those occupying GS-12 positions. Moreover, he indicated that
it had not been determined whether the ratio would be applied on a
regional basis, or area by area office within a region. Regional
Administrator Doris Wooten mentioned, further, that she was in the
process of negotiating with regional personnel officers as to pending
requests for GS-12's; that an announcement re those would be
forthcoming soon. Apart from these statements, Respondent's Associate
Deputy Under Secretary, Craig Berrington, conversed with employees as to
the quota system imposed upon employees, its adequacy, and the reasons
why problems arose because of the employees' inability to meet
performance standards. He suggested employees were "low-balling" it and
not performing up to capabilities; suggested that employees, who did
not obtain a GS-12, could seek a desk audit; and he mentioned that
action would be taken against a supervisor who submitted statistical
standards for performance which could not be met by the employees.
Respondent argues that the statements made by management at the May
11 meeting constituted a reiteration of agency policy; that, as per
agreement with the Union, any restatement of conditions would not be
deemed a formal discussion. The contention that statements by
Berrington, Cohen and Wooten were merely announcements of existing
personnel practices is not persuasive. Development of staffing plans
for GS-12's-- which had not been in operation theretofore-- is scarcely
a repetition of management policy in this regard. Neither were the
discussions re performance standards or the pending requests for GS-12
positions. While it is true that the employees initiated that
conversations re these conditions of employment, in my opinion it was
incumbent upon Respondent to refrain from discussing these conditions.
Management could well have limited the meeting to the topic of the farm
labor bill, and the proper course of action would have been to decline
to consider the items then raised by employees.
Record facts disclose that the factors which the Authority deemed
essential, in assessing whether a formal discussion ensued, are apparent
herein. Thus, attendance at the meeting was mandatory; those who
presided for management were high level officials; the meeting was
"formally" called by Respondent; and it lasted for some length of time.
A discussion of conditions of employment, although interlaced with
questions and answers, constitutes a formal discussion. The fact that
management's original agenda did not call for such discussion does not,
in my opinion, absolve Respondent from its obligation to afford the
Union an opportunity to be present. Neither is Respondent excused in
that regard because basic information was discussed. See Department of
Health and Human Services, Region IV, Atlanta, Georgia, 5 FLRA No.
58(1982). Accordingly, I conclude, on the basis of the foregoing that
the Respondent's meeting with employees on May 11 involved a formal
discussion within the meaning of the Statute.
In respect to the defense raised herein that, in any event, the
Union's officers and stewards (who were employees) were present at the
May 11 meeting and thus the Union received notification, the Authority
has ruled otherwise. It was held in Norfolk Naval Shipyard, Portsmouth,
Virginia, 6 FLRA No. 22, (1982), that the attendance at a meeting of
employees, who happened to be union stewards, does not fulfill
management's obligation to afford a union representative thereat. The
Authority posited its holding on the reasoning that a union should have
the opportunity to select representatives of its own choosing; that the
Statute contemplates, therefore, prior notice to the bargaining
representative. /11/ The undersigned therefore rejects the aforesaid
defense raised by the agency herein.
In sum, I conclude that Respondent did engage in a formal discussion
on May 11, 1983 with its employees at the meeting convened on that date
at the Turf Inn, Albany, NY; that the agency did not comply with the
requirement under Section 7114(1)(2)(A) of the Statute to afford the
Union an opportunity to be represented thereat as the bargaining agent
or representative; and that its failure and refusal to do constituted a
violation of Section 7116(a)(1), (5), and (8) of the Statute.
Having concluded, as aforesaid, that Respondent violated Section
7116(a)(1), (5) and (8) of the Statute, I recommend the Authority issue
the following:
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 United States Department of Labor,
Employment Standards Administration, shall:
1. Cease and desist from:
(a) Failing and refusing to provide the National Council of
Field Labor Locals, American Federation of Government Employees,
AFL-CIO, or its agent, American Federation of Government
Employees, Local 2513, AFL-CIO, appropriate notice of, and an
opportunity to be present at, formal discussions between
representatives of the agency and its bargaining unit employees,
or their representatives, concerning personnel policies,
practices, or other general conditions of employment.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
policies of the Federal Service Labor-Management Relations Statute:
(a) Provide the National Council of Field Labor Locals,
American Federation of Government Employees, AFL-CIO, or its
agent, American Federation of Government Employees, Local 2513,
AFL-CIO, with appropriate prior notification of, and an
opportunity to be present at, formal discussions between
representatives of the agency and its bargaining unit employees,
or their representatives, concerning personnel policies, practices
or other general conditions of employment.
(b) Post at its facilities in all the area offices of Region 2
(except Puerto Rico) 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 Associate Deputy Under
Secretary of the Employment Standards Administration, and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Associate Deputy Under Secretary to insure
that said notices are not altered, defaced or covered by any other
material.
(c) Notify the Regional Director, Region II, 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.
\ WILLIAM NAIMARK
Administrative Law Judge
Dated: June 26, 1984
Washington, DC
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 or refuse to provide the National Council of Field
Labor Locals, American Federation of Government Employees, AFL-CIO, or
its agent, American Federation of Government Employees, Local 2513,
AFL-CIO, appropriate notice of, and an opportunity to be present at,
formal discussions between representatives of the agency and its
bargaining unit employees, or their representatives, concerning
personnel policies, practices, or other general conditions of
employment.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of the rights guaranteed by the
Federal Service Labor-Management Relations Statute.
WE WILL provide the National Council of Field Labor Locals, American
Federation of Government Employees, or its agent, American Federation of
Government Employees, Local 2513, AFL-CIO, with appropriate prior
notification of, and an opportunity to be present at, formal discussions
between representatives of the agency and its bargaining unit employees,
or their representatives, concerning personnel policies, practices or
other general conditions of employment.
(Activity or Agency)
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 its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 24-102, New York, NY 10278 and whose
telephone number is (212) 264-4834.
--------------- FOOTNOTES$ ---------------
/1/ 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(.)
/2/ 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.
/3/ Veterans Administration, Veterans Administration Medical Center,
Muskogee, Oklahoma, 19 FLRA No. 122(1985).
/4/ In so concluding, the Authority finds it unnecessary to pass upon
whether the meeting was a "formal discussion" within the meaning of
section 7114(a)(2)(A) of the Statute, or whether the Union contractually
waived its right to representation in the circumstances of the case.
/5/ Incorporated within the agreement is a memorandum of
understanding (Appendix C-1) dated October 15, 1982 which provides,
under paragraph IV thereof, procedures to be followed in providing
notice to the Council of a formal discussion.
/6/ This finding is based on the testimony of Council President Rios.
While Respondent's witness, Robert Hastings, gave a somewhat different
version of the agreement, both individuals attest to the understanding
between the parties that a discussion at a meeting of any changed
conditions would call for notifying the Union and allowing it to attend.
/7/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1983.
/8/ The Agenda for the meeting was entitled "Joint Boston/New York
Wage Hour Training Conference." MSPA Training session was scheduled for
May 11.
/9/ Prior to this May meeting no staffing plan was in use involving
quotes by the Department for filling GS-12 positions.
/10/ These involved "exit interviews" with a unit employee by a chief
nurse.
/11/ Cf. U.S. Air Force, Air Force Logistics Command vs. Federal
Labor Relations Authority, 681 F.2d 466 (6th Circuit 1982), which
involved a meeting called by management to discuss a change in an
employment condition. A union steward, who was an employee, attended
thereat and learned of the proposed change. Contrary to the Authority,
the court held that since the union official knew about the proposal
prior to its implementation, there was actual notification to the union
thereof. Note is taken that the cited case did not concern a "formal
discussion" issue, but merely notification prior to a change. Apart
from the fact that the Authority has not reversed its ruling in Norfolk
Naval Shipyard case, supra, I do not deem the Circuit Court's decision
to be controlling in respect to the issue herein.