[ v22 p091 ]
22:0091(10)CA
The decision of the Authority follows:
22 FLRA NO. 10
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 9-CA-30242
9-CA-30344
9-CA-30348
9-CA-30351
9-CA-30395
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain of the unfair labor practices alleged in the consolidated complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge also found that the Respondent had not engaged in other alleged unfair labor practices and recommended dismissal of the consolidated complaint with respect to such allegations. Thereafter, the General Counsel filed exceptions limited to the Judge's dismissal of one allegation in the consolidated complaint.
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 the limited nature of the General Counsel's [ v22 p91 ] exceptions as well as the absence of exceptions by the Respondent, the Authority hereby adopts the Judge's findings, 1 conclusions and recommended Order.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, it is hereby ordered that the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, Shall:
1. Cease and desist from:
(a) Making unilateral changes in the conditions of employment of employees exclusively represented by the American Federation of Government Employees, AFL - CIO, such as the reorganization of the Title II and Title XVI initial claims units in its South Seattle Branch Office, without notifying AFGE of the proposed change and, upon request, negotiating to the extent required by the Federal Service Labor - Management Relations Statute.
(b) Bypassing the American Federation of Government Employees, AFL - CIO, and dealing directly with bargaining unit employees concerning their conditions of employment.
(c) Telling the representative of the American Federation of Government Employees, AFL - CIO, that the Branch Manager wants his next Documented Progress Review to reflect his union activity in a negative way; threatening said representative with a Performance Improvement Plan; and stating that the Branch Manager is timing the representative's interviews with the public, in order to interfere with or discourage him in the exercise of rights accorded by the Statute. [ v22 p92 ]
(d) Discriminating against employees because of their union activities by evaluating said employees in a Documented Progress Review or other work review in an adverse manner which penalizes approved official time spent on union activities.
(e) 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 effectuate the purposes and policies of the Statute:
(a) Upon request, bargain with the American Federation of Government Employees, AFL - CIO, concerning the impact and implementation of changes stemming from the reorganization in the Title II initial claims unit on or about May 2, 1983, and in the Title XVI initial claims unit on or about April 11, 1983.
(b) Rescind the Documented Progress Review issued to John Mack in March 1983, and reevaluate Mack, taking into consideration Mack's time spent on approved official time for labor-management relations, when assessing his level of production for purposes of that Documented Progress Review.
(c) Post at its facilities at the South Seattle Branch Office 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 a designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all 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.
(d) 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. [ v22 p93 ]
IT IS FURTHER ORDERED that the remaining allegations of the consolidated complaint be, and they hereby are, dismissed.
Issued, Washington, D.C., June 6, 1986. Jerry L. Calhoun Chairman Henry B. Frazier III Member FEDERAL LABOR RELATIONS AUTHORITY
[ v22 p94 ]
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 make unilateral changes in the conditions of employment of employees exclusively represented by the American Federation of Government Employees, AFL - CIO, such as the reorganization of the Title II and Title XVI initial claims units in our South Seattle Branch Office, without notifying the American Federation of Government Employees of the proposed change and, upon request, negotiating to the extent required by the Federal Service Labor - Management Relations Statute.
WE WILL NOT bypass the American Federation of Government Employees, AFL - CIO, by dealing directly with bargaining unit employees regarding proposed changes in their conditions of employment.
WE WILL NOT tell the representative of the American Federation of Government Employees, AFL - CIO, that the Branch Manager wants his next Documented Progress Review to reflect his Union activity in a negative way; threaten said representative with a Performance Improvement Plan; or state that the Branch Manager is timing the representative's interviews with the public, in order to interfere with or discourage him in the exercise of rights accorded by the Federal Service Labor - Management Relations Statute.
WE WILL NOT discriminate against our employees because of their union activities by evaluating said employees in a Documented Progress Review or other work review in an adverse manner which penalizes approved official time spent on union activities. [ v22 p95 ]
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 Federal Service Labor - Management Relations Statute.
WE WILL, upon request, bargain with the American Federation of Government Employees, AFL - CIO, concerning the impact and implementation of the changes stemming from the reorganization in the Title II initial claims unit on or about May 2, 1983, and in the Title XVI initial claims unit on or about April 11, 1983.
WE WILL rescind the Documented Progress Review issued to John Mack in March 1983, and reevaluate Mack, taking into consideration Mack's time spent on approved official time for labor-management relations, when assessing his level of production for purposes of that Documented Progress Review.
____________________________
(Agency or 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 for the Federal Labor Relations Authority, Region IX, whose address is: 530 Bush Street, Room 542, San Francisco, California 94108, and whose telephone number is: (415) 556-8106. [ v22 p96 ]
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Mr. Wilson Schuerholz
For the Respondent
Mr. Michael J. Teefy
For the Charging Party
Josanna Berkow, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
Case Nos. 9-CA-30242
9-CA-30344
9-CA-30348
9-CA-30351
9-CA-30395
DECISION
Statement of the Case
This decision concerns unfair labor practice complaints issued by the Regional Director, Region Nine, Federal Labor Relations Authority, San Francisco, California, dated July 29, 1983 and September 20, 1983, against the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland (Respondent), based on charges filed by the American Federation of Government Employees, AFL - CIO (Charging Party or Union). The complaints allege a multitude of statutory violations based upon Respondent's actions in its South Seattle Branch Office. Specifically, the complaints allege that Respondent made various threatening statements regarding the alternate union representative's work performance [ v22 p97 ] in violation of section 7116(a)(1) of the Statute; 2 that Respondent realized one of these threats by the issuance of an adverse performance document to the alternate Union representative in violation of section 7116(a)(1) and (2) of the Statute; that Respondent discriminated against another Union representative by denying her designated representative official time to represent her in a personal grievance on the sole basis of her Union status in violation of section 7116(a)(1) and (2) of the Statute; and that holding a grievance meeting in the absence of her designated Union representative was an unlawful formal discussion in violation of section 7116(a)(1)(5) and (8) of the Statute. The complaints further allege Respondent's failure to bargain in good faith with the Union in violation of section 7116(a)(1) and (5) of the Statute by its unilateral implementation of substantial changes in the staffing of the Title 11 and Title XVI Initial Claims Units, its refusal to bargain with the Union's designated representative regarding said changes, and by its direct dealing and formal discussions with employees affected by these changes. Respondent filed Answers admitting the jurisdictional allegations as to the Respondent, Charging Party, and the filing of charges, but denying any violative conduct.
A hearing was held in Seattle, Washington. The Respondent, Charging Party, and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The General Counsel and Respondent filed helpful briefs, and the proposed findings have been adopted in whole or in substance where found supported by the record as a whole. Based on the entire record, 3 including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. [ v22 p98 ]
II. Findings of Fact
A. Background
The South Seattle Branch Office, herein called the Office, is one of Respondent's field offices in the Seattle metropolitan area. The Office processes initial claims and post entitlement actions under Title II and Title XVI of the Social Security program. Its staff consists of approximately 30-37 employees, two operations supervisors and a branch manager (Tr. 267-268). Mary O'Malley was the Union representative and John Mack, the alternate Union representative for the Office at all times material herein (Tr. 28, 202). In addition, John Mack was and is the Union's technical advisor for the Puget Sound area and regional chairman for the Union's appraisal, grievance, safety and contract committees (Tr. 29-30). At all times material herein, Frank Allard was John Mack's immediate supervisor and Mack's management contact for approval of official time and preliminary matters on certain grievances. Branch Manager Ruth Saunders was Allard's supervisor and Mack's management contact for local negotiations (Tr. 41). Respondent does not dispute its knowledge of either O'Malley's or Mack's various Union positions (Tr. 28-29, 31; 202-203). During the period of time relevant to the present charges, Mack and/or O'Malley have processed approximately 36 grievances and over three dozen unfair labor practice charges involving working conditions in the Office generally and Branch Manager Ruth Saunders specifically (Tr. 32).
B. Respondent's Alleged Intimidation of Mack
1. The Documented Progress Review
A Documented Progress Review, herein called a DPR, is a periodic written supervisory assessment of an employee's performance between annual appraisals (Tr. 41-42). It is designed 'to identify and resolve problems in the employee's performance.' (Jt. Exh. 1, p. 38). In mid - February, Operations Supervisor Allard initiated a discussion with John Mack concerning Mack's upcoming DPR wherein he stated that Branch Manager Ruth Saunders had told him (Allard) that she was angry with Mack about discussions Mack had with Vicki Winn, another operations supervisor in the Office, regarding certain proposed changes in working conditions and wanted Mack's Union activities to be reflected on his next DPR; that she wanted his next DPR to be negative. Allard told Mack that he had informed Saunders that a negative DPR was inappropriate and that Mack's Union activities should not be reflected on his DPR. Allard also told Mack that Saunders had stated she was upset with the quantity of Mack's work compared to other employees and that he was spending too much time on Union activities. Allard said he disagreed with Saunders on that, but warned Mack that Saunders was watching his work and that he had better be [ v22 p99 ] careful (Tr. 42-43) 4 Employee O'Malley corroborated Mack's testimony in all material respects (Tr. 203-204).
Mack, one of four claims representatives in his unit, received his DPR on March 2 from Allard. Of the four, only Mack was a Union official. During the period covered by the DPR Mack spend 20-25% of his total work time on Union activities. The DPR stated as to Mack: "Overall and in each generic job task your performance has been fully satisfactory since October 29, 1982." However, the DPR stated that Mack "should strive to approximate taking 25% of the interviews in a four person unit, and 33% in a three person unit," and noted that Mack would have to increase his overall productivity to remain fully satisfactory overall. (Tr. 44-45; GC Exh. 2). Allard testified that this was an attempt to create a fair share baseline from which other factors or variables, such as future official time, would be taken into account (Tr. 357). Although Saunders testified that she reviewed the DPR prior to its issuance and instructed Allard that Mack's official time would have to be subtracted from the 25% workload Allard was expecting Mack to carry (Tr. 275), the DPR issued to Mack on March 2, 1983 set forth the 25% productivity standard without any allowance for the official time Mack was utilizing for Union activities (Tr. 53; GC Exh. 2). 5 Unlike Mack's DPR, the February/March 1983 DPR's issued to the three other claims representatives in his unit do not contain a fixed and objective percentage expectation of productivity; two of these three DPR's reference a "fair share" standard (GC Exh. 2(a) to (d)). [ v22 p100 ]
2. The Performance Improvement Plan
A Performance Improvement Plan, herein called PIP, is a supervisor's written plan identifying an employee's performance deficiencies. It sets forth actions which must be taken by the employee to improve performance and contains provisions for counseling, training, reassignment, or other assistance as appropriate. A PIP is established when an employee's performance indicates potential unsatisfactory performance (Jt. Exh. 1, Article 21, Section 7(c), p. 38; Tr. 46). The possible consequences of failure to meet the requirements of a PIP include reassignment, denial of promotions, and/or termination (Tr. 46).
Shortly after Allard's discussion with Mack on Mack's upcoming DPR, but before Mack received it, Allard initiated a further discussion with Mack on his work performance (Tr. 144; 45-46). This discussion occurred in the parking lot of the Office as Allard and Mack were leaving for the day (Tr. 46-47). Allard told Mack that Saunders wanted to put Mack on a PIP based on low productivity, but that Allard had told Saunders a PIP was not warranted at that time. 6 Allard also told Mack that Saunders had timed his work interviews in comparison to one of Mack's co-workers, Title Briscoe, and found that Briscoe did three interviews in the time it took Mack to do one, 7 Allard said Saunders had asked him if Mack could be written up for this (Tr. 47-48).
3. The Sick Leave Investigation
Allard approved sick leave for Mack on March 10 (Tr. 50-51). Mack stayed home with stomach cramps and diarrhea that day (Tr. 52). Mack has never been counseled regarding sick leave abuse and has a sick leave balance in excess of 550 hours (Tr. 51).
After Mack was placed on sick leave, Saunders called Carol Hearn, Branch Manager of the Social Security office in Seattle West where Mack's wife, Carol, worked as a data review technician. Saunders called to ask whether Carol Mack was working that day (Tr. 199-200). Carol Mack was at work that day, she overheard the call being announced and, upon her inquiry, was advised of the substance of the call by Ms. Hearn. [ v22 p101 ]
Saunders testified that she called Carol Hearn to ascertain whether Carol Mack was working on the day in question even though she had not observed John Mack to be a sick leave abuser. Saunders explained that Hearn had recently made a similar call to her to ascertain John Mack's whereabouts on a day that Carol Mack had taken off on leave. Saunders stated that there was no abuse of sick leave on John's part, and she wasn't sure what was going on with Carol. (Tr. 286-287). Saunders had never made such an inquiry regarding any other employee. (Tr. 337-338). She dropped the matter, and nothing was said about this to the Macks. (Tr. 287-288). Carol Mack testified on rebuttal that she took no sick leave from January 1 to March 10. (Tr. 418-419).
4. Saunders' Call to Saul
From 8:00 to 9:00 a.m. on the morning of February 16 management conducted a general staff meeting attended by the entire Office (Tr. 53). Most of the meeting was taken up with a training session, conducted by Allard, on protective filing (the protection of a Social Security claimant's right to file a claim in advance of when payment would be due). At the end of the meeting, Mack became involved in a heated exchange with Saunders and Winn regarding what he perceived to be inconsistencies in the protective filing instructions given employees at the staff meeting. Saunders became upset and terminated the meeting (Tr. 53-56). Shortly thereafter, at roughly 10:00 a.m. that morning, Saunders telephoned Jeff Saul, the Union's Vice President in charge of appointing and dismissing Union representatives. Saunders informed Saul that Mack had lied to her and that Mack was unfair (Tr. 245-246). 8
C. The Allied Denial of O'Malley's Right to Representation
On March 22 and 24, O'Malley filed two separate grievances relating to denial of official time in order to file an unfair labor practice charge and designated Mack as her representative in each (Tr. 206-207; GC Exh. 34, 35). She designated Mack because she wanted union representation, he was the alternate representative, and he was trained and experienced in handling grievances (Tr. 207). On March 23, Mack twice requested official time to process O'Malley's March 22 grievance. Both requests were denied by management on the grounds that official time may be granted only to the primary representative and the local representative must represent herself [ v22 p102 ] (GC Exh. 4, 5; Tr. 56-59). The denials were based on advice received by Saunders from Richard A. Morris, Regional office management analyst, concerning management's understanding of Article 30, Appendix F, section (k) of the collective bargaining agreement. The advice was that where the local representative has filed a grievance and designated another representative, management will accept the designation of representative; however, no official time will be granted. (Tr. 292-293; 399-400). One month after the denial of his requests for official time to represent O'Malley, Allard informed Mack he could have taken annual leave or leave without pay for this purpose (Tr. 61).
O'Malley again requested union representation at her first step grievance meeting with Allard which was held by Allard on April 1 (Tr. 209). At that time, Allard promised O'Malley that he would address the representation issue in his first step decision (Tr. 210). Allard failed to do so and did not address the issue until O'Malley wrote a subsequent memorandum to him requesting management's position in writing (Tr. 210; GC Exh. 36-38). Management's position as indicated in two memoranda from Allard and one from Saunders through Winn was that the grievances were Union-initiated issues, the primary representative was on official time, and the Union representative should represent himself/herself absent a request for annual leave or leave without pay from the designated representative (Tr. 213-214; GC Exh. 38 to 40). A national grievance on official time was filed July 13, 1982 (Tr. 260-261). One of the issues involved therein was the denial of union representation to union representative grievants under certain circumstances (Tr. 255). The grievance itself was not introduced nor was there any further evidence delineating those circumstances of denial involved in the grievance. It is undisputed that the denial of O'Malley's right to union representation in her March 1983 grievances is not and was not the subject of any pending grievance (Tr. 401-402; 415).
D. The Title XVI Changes
At all times material herein there were three claims representatives in the Title XVI Initial Claims Unit, O'Malley, Heavey and Furugori. The Title XVI Claims Unit in the Office processes both aged and disability claims (Tr. 216). Aged claims are undisputedly the more difficult workload because of their restrictive time limits, the fact that the claims representative makes a payment determination on all such claims as opposed to 20% of the disability claims, they are reviewed five times more frequently than disability claims for appraisal purposes, and have more complex eligibility factors (Tr. 216-217; 63-64; 191-192). 9 The [ v22 p103 ] rotation of the aged workload within Office's Title XVI Initial Claims Unit had previously been negotiated with the Union on two occasions. The first agreement, dated October 19, 1982, assigned the aged claims to Betty Heavey for six months (GC Exh. 15). The second agreement dated January 19, 1983 reassigned the aged workload to Mary O'Malley for six months and then to Kim Furugori "barring any unanticipated changes." (GC Exh. 16).
Prior to April of 1983 O'Malley was assigned the aged claims and some disability claims. Heavey and Furugori worked only on disability claims (Tr. 216). On March 31 Saunders verbally proposed the following changes to O'Malley: that O'Malley be reassigned to the post-entitlement unit; that Heavey resume the aged workload; and that a new claims representative, Verna Bush, be brought into the Initial Claims unit to replace O'Malley (Tr. 217-218). O'Malley confirmed Saunders' proposals by memorandum to Saunders dated April 1 wherein she designated John Mack as the Union's bargaining representative on the proposed changes (GC Exh. 6). O'Malley designated Mack primarily because she was personally affected by the change and didn't want to create the appearance of a conflict of interest and, secondarily, because she was going to be out the office for the following week (Tr. 218-219). Mack submitted a formal bargaining request and opening proposals to Saunders by memorandum of April 1 (GC Exh. 7). Saunders replied on April 1 that Mack's proposals were non-negotiable (GC Exh. 8). Mack responded by a second memorandum, also dated April 1, that he would petition the Authority for a negotiability determination on his proposals and/or bargain to impasse on alternative proposals (GC Exh. 9). On April 4 Saunders stated that the proposed staffing changes did not substantially impact either O'Malley or Heavey and were therefore non-negotiable (GC Exh. 10). On April 5 Mack informed Saunders in writing that he was in the process of preparing a new position paper more clearly outlining the Union's proposals (GC Exh. 11). On April 6 Mack submitted an impact statement to Saunders citing prior rotation agreements and the detrimental effect of O'Malleys frequent reassignments (GC Exh. 12). 10 Saunders replied by memorandum dated April 7 wherein she restated her position of no impact and gave an April 11 implementation date for her proposed changes, but agreed to consider any proposals Mack cared to submit (GC Exh. 13).
Mack submitted the following new counter-proposals on April 7 in lieu of his previously submitted proposals: (1) that the staffing changes be made in a fair and equitable manner; (2) that the changes not violate prior agreements; (3) that the changes not unfairly disadvantage any [ v22 p104 ] particular employee or impose any unreasonable or unnecessary workload burden upon any particular employee; and (4) that employees' views be fully and fairly considered (Tr. 74-75; GC Exh. 14). The employees' views were represented to be recommendations that (1) Betty Heavey not be reassigned the aged workload; (2) that Mary O'Malley not be reassigned to the SSI PE Unit; and (3) that Kim Furugori be reassigned to SSI PE. By memorandum dated April 8, Saunders refused to bargain on the Union's new proposals (GC Exh. 17). The Title XVI staffing changes were implemented by Allard's April 11 memorandum to employees (GC Exh. 18).
Upon receipt of this memorandum on April 11, claims representative Betty Heavey, a bargaining unit employee, suggested certain changes in Allard's initial memorandum to the effect that she not take over O'Malley's caseload, that she be allowed to work through her own pending disability caseload, take the aged cases from O'Malley, and have an alpha split for incoming cases with the new employee. Allard said that would be okay with him. (Tr. 194, 376). After meeting with Heavey on this matter, Allard implemented her suggestions by a second memorandum also dated April 11 (GC Exh. 19; Tr. 194-195). The Union was not provided prior notice or the opportunity to be present at the meeting between Allard and Heavey (Tr. 82; 221). Nor was the Union provided prior notice or the opportunity to bargain on Allard's accommodation of Heavey's requested amendment to management's initial proposal. 11
On April 12 Saunders told O'Malley she would not deal with Mack on the proposed Title XVI changes and that she felt Mack was wasting his time preparing for negotiations. O'Malley informed Saunders that Mack was the Union's designated representative in this matter. Saunders then requested a written designation of Mack. O'Malley gave Saunders a written designation of Mack as the Union's bargaining representative for all matter he became involved with during O'Malley's absence from the office 12 Saunders repeated that she would not consult with Mack and confirmed this in writing by letter to O'Malley dated April 18. Saunders stated that she would contact Mack only in O'Malley's absence and referenced Article 30, Appendix F, Sections E and F of the agreement. (Tr. 221-223; GC Exh. 21, 25). [ v22 p105 ]
E. The Title II Changes
Prior to May of 1983 there were three different specialized work groups in the Office handling Title 11 claims. One group, supervised by Allard, consisted of four claims representatives, including Mack, and specialized in disability claims. The second group consisted of two part-time claims representatives, also supervised by Allard, who did the post-entitlement work. A third group of two claims representatives, supervised by Winn, specialized in retirement/survivor claims (Tr. 87-88).
On Thursday, April 7, when O'Malley was out of the office, Saunders sent Mack a memorandum proposing that Barbara Larsen, one of the two claims representatives handling retirement/survivor claims, be reassigned to a Title XVI unit on a trial basis for six months. The memorandum was addressed to Mack as the alternate local representative and requested his "comments" by April 15 with implementation to occur April 22 (GC Exh. 23).
Mack requested official time to meet with Saunders on Larsen's proposed reassignment the following Monday, April 11 (Tr. 90-91; GC Exh. 24). On April 12 Saunders denied the request for official time for Mack, stating that since O'Malley was the primary representative and was now back from leave, she was the proper representative to handle labor-management relations matters. (Tr. 91; GC Exh. 24). O'Malley reminded Saunders on April 12 that Mack was the Union's designated representative in this matter and confirmed this designation in writing by memorandum dated April 13 (Tr. 224; 221-222; GC Exh. 25). Following this written designation, Mack made a second request for official time to meet and consult on Larsen's reassignment. The latter request was also denied by Allard on April 14 on the grounds that O'Malley was present to conduct Union business (Tr. 95; GC Exh. 26).
On April 18 Saunders discussed with O'Malley the change in the Title 11 Unit, as well as another change she was making. (Tr. 316). Saunders suggested to O'Malley that there be a staff meeting to pull together information from employees. Saunders indicated that no decisions would be made at the meeting, and it would just be information gathering. O'Malley thought it was a good idea and had no problem with it. 13
On April 20 Saunders met with the dozen or so employees involved in Title II work in the break room. Prior to the meeting, she reminded Mack, in O'Malley's absence, of the meeting and that he would be there in his Union capacity. (Tr. 317, 396). 14 She also stated at the meeting that [ v22 p106 ] Mack was representing the Union and told him to "put on your union cap" (Tr. 317, 381, 397).
Immediately after the meeting ended, Mack again requested official time to meet with Saunders to discuss the impact of Larsen's reassignment. Saunders responded that the Union would be given an opportunity to bargain when management formulated its proposal on the Title II reorganization (Tr. 100-101; GC Exh. 27).
Saunders continued the meeting with the same employees at 8:00 a.m. the following day, April 21, to finish up the meeting. (Tr. 318). At this meeting, Saunders narrowed the reorganization to two options: appoint someone to Larsen's work or establish a consolidated Title 11 initial claims unit responsible for both disability and retirement/ survivor claims. She solicited employees' comments on each of these two options. Employees expressed concerns about training, performance appraisals, and about controlling the work flow. Saunders stated she would consider the employees' concerns and make her decision. (Tr. 103-105).
On April 22, Saunders presented nine proposals to O'Malley for comment by April 27 with a projected May 2 implementation date (GC Exh. 28). O'Malley then distributed the proposals to employees for their comments (Tr. 105).
Saunders notified O'Malley on April 25 that she wanted to meet with employees on April 26 regarding the Title II changes. O'Malley agreed to the meeting, but told Saunders she would not bargain in such a setting and expected Saunders to submit final proposals to her following the April 26 meeting with employees and, based on Saunders' final proposals, O'Malley would decide whether to invoke bargaining (Tr. 225).
Saunders held a third meeting with the same employees on April 26. O'Malley also attended. Saunders went over her April 22 proposals and solicited employee reaction to each (Tr. 108). Employees again expressed concern over tally board control, folder location, training and performance documentation (Tr. 108-109; 226-229). Saunders ended the meeting by stating she would consider the employees' concerns expressed and get back to the employees (Tr. 109). After the April 26 meeting ended O'Malley asked Saunders whether Saunders would give her revised proposals. Saunders stated she would do so (Tr. 229). 15 [ v22 p107 ]
On April 27 Saunders issued a memorandum to the Title 11 staff encouraging them to accept despecialization. (GC Exh. 29). The Union received no advance notice of the April 27 memorandum prior to its issuance to employees (Tr. 110; 229-230). After reviewing a copy of the memorandum, Mack asked Saunders on April 28 when the Union could expect her final proposal. Saunders said that the April 27 memorandum was her final proposal. Mack replied that the memorandum merely outlined some staff training but did not cover all the issues discussed at the April 26 meeting. Saunders then stated that Allard was formulating a policy memorandum. Mack showed Saunders a list of six employee concerns expressed at the April 26 meeting. He told her that the Union wanted to ensure that these six concerns were addressed in management's final proposal on the reorganization. He also told Saunders the Union would want to negotiate any of the concerns not incorporated into her final proposal. Saunders told him to discuss the list with Allard (Tr. 111 to 113; GC Exh. 30). On April 29 Mack gave Allard a copy of the list of concerns he had shown Saunders the day before (GC Exh. 30). Allard reviewed the list and they discussed it briefly. Allard told Mack he would get back to him (Tr. 114-116). Instead, Allard distributed two policy memoranda announcing the Title II reorganization to employees (Tr. 117; 230). 16
The changes outlined in the April 29 memorandum were implemented by Respondent on May 2 (Tr. 121). At the time of implementation, the Union had the following outstanding concerns: (1) did the April 29 memoranda replace Saunders' April 22 proposal or were they an addition thereto; (2) in the new initial claims unit, what type of work would be reviewed for evaluative purposes and by whom; (3) would Larsen receive the same benefits regarding training and an evaluation-free period as the others in the event she opted to return to Title XVI work after six months; (4) were the alpha splits determining work distribution fair and equitable; 17 [ v22 p108 ] and (5) what input would the Union have in management's reassessment of the new structure following the 30 day grace period. The Title II changes were implemented by Respondent. The Union reached no agreement with Respondent thereon (Tr. 122 to 123). 18
III. Discussion, Conclusion and Recommendations
A. Alleged Violations of Section 7116(a)(1)
1. Paragraph 5(a) of the July 29 Complaint (Case No. 9-CA-30242)
The credible testimony establishes that Allard told Mack that Saunders had said Mack's next DPR should negatively reflect Mack's union activities. It is well established that protected activity cannot be considered or referenced, even non-judgmentally, in connection with performance discussions. Department of Health and Human Services, Social Security Administration, 12 FLRA 667, 12 FLRA 667, 12 FLRA No. 132 (1983) citing Naval Facilities Engineering Command, 3 A/SLMR 209 (1973). Statements implying that union activity is a "negative factor" in a performance rating restrain employees in their right to form, join, and assist labor organizations without fear of penalty or reprisal and, therefore, constitute unlawful interference in violation of Section 7116(a)(1). Social Security Administration, supra citing U.S. Customs Service, Miami, Florida, 6 A/SLMR 695, Supplement 6 A/SLMR 259, 262 (1976). Accordingly, Allard's statement was violative of Section 7116(a)(1), as alleged.
2. Paragraph 5(b) of the July 29 Complaint (Case No. 9-CA-30242)
Shortly after Allard's initial threat that Saunders was concerned about Mack's low productivity due to Union activities and her desire to have such activities negatively reflected on Mack's upcoming DPR, Allard told Mack that Saunders also wanted to put him on a PIP based on low productivity. Although Mack's Union activities were not explicitly [ v22 p109 ] mentioned in Allard's statement about the PIP, Mack could reasonably have inferred that Saunders had asked about putting him on a PIP due to his Union activities inasmuch as Allard had recently told Mack that Union activities were causing his low productivity. Thus, Allard's statement regarding the PIP was an implicit threat against Mack's continued utilization of official time for union activities. See, Social Security Administration, supra:
It is apparent that any threats to employees, express or implied, in respect to their union activities will have a restraining effect upon such employees and will constitute an unfair labor practice, quoting U.S. customs, Id., at p. 261.
3. Paragraph 5(c) of the July 29 Complaint (Case No. 9-CA-30242)
The record establishes that during Allard's discussion with Mack concerning the PIP he also told Mack that Saunders had timed his work interviews with the public and found Mack a very slow worker. Allard said Saunders then asked if Mack could be written up for this. The statement that Mack's interviews were being timed (made at the same meeting where Mack's low productivity was being discussed and soon after he had been informed that Saunders attributed his low productivity to time spent on union activities) was inherently threatening and discriminatory, particularly in light of the undisputed testimony that no other employee had been timed by management. Accordingly, this statement constitutes an independent violation of Section 7116(a)(1).
4. Paragraph 5(d) of the July 29 Complaint (Case No. 9-CA-30242)
The complaint alleges that Respondent, by Saunders, subjected John Mack to disparate treatment when he called in to request sick leave. Saunders called another manager to ascertain whether Mack's wife was at work in another office on that day. The Complaint alleges that this action was taken for the purpose of discouraging John Mack from engaging in activities protected by section 7102 of the Statute.
The test established by the Authority to determine unlawful interference is not the employer's intent, nor the subjective perceptions of the employee, but whether, under all the circumstances, the employer's conduct may reasonably tend to coerce or intimidate the employee or, in the case of a statement, whether the employee could have reasonably drawn a coercive inference from the statement. Federal Mediation and Conciliation Service, 9 FLRA 199; Army and Air Force Exchange Service, Ft. Carson, Colorado, 9 FLRA 620 (1982). A manager has the responsibility of insuring that employees abide by leave regulations and must have discretion to initiate appropriate investigations and exchange pertinent information [ v22 p110 ] with other managers. I credit Ms. Saunders' explanation for her inquiry. Her inquiry was discreet and directed only to another manager. She made no effort to communicate to Mack on his wife that they were under some kind of investigation. She promptly dropped the matter. In my view, a preponderance of the evidence does not establish unlawful interference with protected activities in this respect.
B. Alleged Discrimination against the Union Representatives, Alleged Refusal to Honor Designation of Union Representatives; Alleged Bypass
1. Alleged Critical Appraisal of John Mack on February 23, 1983 in Violation of Section 7116(a)(1) and (2) (Case No. 9-CA-30242)
Section 7102 of the Statute guarantees an employee's right to form, join, and assist a labor organization. The abridgement of this right by discrimination in connection with hiring, tenure, promotion or other conditions of employment is an unfair labor practice under Section 7116(a)(1) and (2). See, U.S. Marine Corps Marine Corps Logistics Base, Barstow California, 5 FLRA 715, 5 FLRA No. 97 (1981). In order to establish a violation of sections 7116(a)(2) and (4) there must be a showing that the alleged discriminatee was engaged in protected activity, that the Respondent had knowledge of such activity, and that the Respondent took action against the discriminatee because of its anti-union animus. Veterans Administration Medical Center Buffalo, New York, 13 FLRA No. 46 1983; Department of Transportation, Federal Aviation Administration Boston Air Route Traffic Control Center Nashua, New Hampshire, 11 FLRA No. 67 (1983).
Respondent's knowledge of Mack's union activities was clearly established and is not in dispute. During the period covered by his February 23 DPR, Mack spent from 20 to 25% of his total work time on representational activities. Notwithstanding this knowledge, Respondent issued Mack a DPR on February 23 establishing a productivity goal that he take 25% of the interviews in a four person unit, which took no account of the 20 to 25% of work time Mack was then spending on Union activities. The DPR further stated that Mack would have to increase his current productivity to remain fully satisfactory.
Respondent claims that the productivity goal was merely a baseline from which future official time would be discounted. However, given the purpose of the progress review, which is to identify and resolve problems in the employee's performance at intervals during the appraisal period, this explanation is unconvincing. Saunders admitted that the productivity goal set forth therein should have, but did not, take Mack's union activities into account. [ v22 p111 ]
Discrimination is further apparent from a comparison of Mack's DPR with those simultaneously issued his three co-workers, none of whom had any involvement in Union activities. None of the other DPR's contain a fixed, numerical productivity goal but rather reference a more subjective "fair share" standard. It is well established that disparate treatment of Union representatives evinces a discriminatory motive. See, Veterans Administration Medical Center Shreveport Louisiana, 5 FLRA 216, 5 FLRA
The timing of Mack's February 23 DPR, during a period when he was involved in the processing of three dozen or so grievances and an equal number of unfair labor practice charges against Office management, further demonstrates Respondent's discriminatory intent. Respondent was fully aware of these activities and had authorized Mack official time to perform them. The concurrence of protected activity and the critical appraisal warrants an inference of discriminatory motive. Veterans Administration Medical and Regional Office Center White River Junction, Vermont, 6 FLRA 381, 6 FLRA No. 68 (1981); Norton Concrete Co., 249 NLRB 1270, 104 LRRM 1347 (1980). Saunders' animus toward Mack is further established by her complaints about him to the Union official authorized to terminate Mack's appointment as a Union representative immediately following Mack's disagreement with her policies during a staff training meeting.
Although Mack's DPR ultimately contained a satisfactory rating, the satisfactory rating is totally irrelevant to the discriminatory production goals established by the DPR and to Allard's statement therein that Mack's failure to meet these goals would result in an unsatisfactory rating.
In summary, the discriminatory nature of Mack's February 23 DPR is established in this record by the document itself, Saunders' own admissions, the evidence of disparate treatment, and by the suspicious timing of the action. Accordingly, the DPR is violative of Section 7116(a) (1) and (2) of the Statute.
2. Alleged Discriminatory Denial of Official Time to John Mack to Represent Mary O'Malley; Alleged Discriminatory Denial to O'Malley of the Right to be Represented by the Union at Formal Grievance Meetings; Alleged Refusal to Bargain in Good Faith By Refusing to Honor O'Malley's Designation of Mack as Union Representative and Afford Mack Prior Notice of Grievance Meeting (Case No. 9-CA-30344) [ v22 p112 ]
These alleged unfair labor practices arise out of Respondent's refusal to grant official time to John Mack to represent O'Malley in her grievances The refusal was based on Respondent's interpretation of Article 30, Appendix F, the official time provision of the collective bargaining agreement negotiated pursuant to section 7131(d) of the Statute. The contract is subject to arguable and variable interpretations in this respect, and relief for alleged violation of such negotiated rights would be available through the parties' negotiated grievance procedure. In these circumstances, the denial of official time to John Mack, a contractual right, did not rise to the level of interference with rights guaranteed by the Statute, e.g. the right to form, join, or assist a labor organization, or constitute discrimination to discourage the exercise of such rights. Cf. Department of the Air Force Base Procurement Office, Vandenburg Air Force Base California, A/SLMR No. 485, 5 A/SLMR 112, FLRC No. 75A-25, 4 FLRC 587 (1976); Iowa National Guard and National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500, 512-513 (1982).
Since the alleged refusal to bargain with Mack regarding O'Malley's grievance and the alleged refusal to provide Mack with prior notice of the grievance meetings also arise out of this basic disagreement over official time, I conclude that a preponderance of the evidence also does not establish these as unfair labor practices. O'Malley's grievances on their face were not strictly personal grievances, but dealt with her use of official time as a Union representative. O'Malley is an intelligent and well-informed primary local Union representative. Under all the circumstances, she either was well aware, or should have been well aware, that the dispute with management was not over her right to have a representative at the meetings, but on that representative's use of official time. She had notice of the meetings and, as the primary representative, could have designated a representative to attend these sessions on her or the Union's behalf on other than official time.
3. Paragraph 11(b) of the July 29 Complaint (Case No. 9-CA-30351); Paragraph 8(a) of the September 30 Complaint (Case No. 9-CA-30395); Alleged Refusal to Honor the Union's Designation of Mack as Its Bargaining Representative.
The record reflects that when O'Malley, the local representative, was out of the office, Respondent did not fail to deal with Mack, the alternate representative. However, when O'Malley was in the office, Respondent refused to honor O'Malley's designation of Mack as the Union's bargaining representative. The General Counsel argues that Respondent's refusal to honor the Union's designation of Mack is indefensible and violative of section 7116(a)(1) and (5) of the Statute. [ v22 p113 ]
Respondent defends on the basis of its interpretation of Article 30, Appendix F of the collective bargaining agreement whereby the parties provided for a formalized bargaining relationship at the national, regional, and local level and official time for various Union officials. Respondent contends that at the local level, the Union, through the agreement, made a commitment to utilize the local representative as the individual with whom management should deal regarding labor relations matters and that it should deal with the alternate representative (Mack) only when the local representative is out of the office. The General Counsel replies that the contractual provisions fall far short of a clear and unmistakable waiver of the Union's statutory right to designate its own bargaining representatives.
The Union's statutory right to designate its own representatives in negotiations is well settled. Department of the Air Force 915th Tactical Fighter Group Homestead Air Force Base, 13 FLRA 135, 13 FLRA No. 33 (1983). However, here the parties have provided in their collective bargaining agreement for a formalized bargaining relationship. See, American Federation of Government employees AFL - CIO and U.S. Air Force Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 4 FLRA No. 39 (1980). The parties take opposite POSITIONS as to the meaning to be attached to the contractual language, and the contract is not clear on its face in this regard. Thus, the appropriate avenue for resolution of the dispute is through the parties' mutually agreed upon contractual grievance and arbitration procedures rather than through the unfair labor practice procedures. Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516 (1983) (citing numerous cases).
4. Paragraphs 11(d) and (e) of the
July 29 Complaint (Case No. 9-CA-30348);
Alleged Bypass
The record reflects that Allard met with a bargaining unit employee, Betty Heavey, and agreed at this meeting to further changes in its proposed Title XVI reorganization. While Allard could not avoid Heavey's coming to him with a suggestion for change, Allard's agreement with Heavey affected the general conditions of employment of other unit employees and constituted negotiations by management directly with a unit employee in derogation of the Union's status as the collective bargaining representative. This conduct of negotiating or otherwise dealing directly with a unit employee over conditions of employment inherently undermines the status of the Union and constitutes an unlawful bypass under the Statute. See, Internal Revenue Service Washington, D.C., 4 FLRA 488, 4 FLRA No. 68 (1980); 915th Tactical Fighter Group, supra.
It is undisputed that after hearing Heavey's suggestions regarding the Title XVI reorganization, Respondent immediately amended its first memorandum to employees regarding the change by issuing a second [ v22 p114 ] memorandum incorporating Heavey's suggestions. The credible evidence establishes the Union was given no prior notice of either Allard's meeting with Heavey at which agreement was reached concerning her proposal or Respondent's subsequent implementation of Heavey's suggestions.
Respondent's bypass of the Union and unilaterally implementation of further changes in working conditions as a direct result of such bypass violates Section 7116(a)(1) and (5) of the Statute.
C. All ed Refusal to Bargain in Good Faith Regarding the Title XVI Reorganization in Violation of Sections 7116 a 1
1. Paragraphs 11(a) and (c) of the July 29 Complaint (Case No. 9-CA-30348)
Immediately upon receiving notice of Respondent's proposed staffing changes in the Title XVI Initial Claims Unit, the Union requested bargaining and submitted proposals thereon. The changes involved a reallocation of aged and disability workloads within the unit as well as the transfer of one experienced claims representative out of the unit and a new claims representative trainee into the unit. The proposal raised several impact/implementation issues. The Union's concerns about the effect of the reorganization on prior agreements to rotate the aged claims workload, the equity of the distribution of the workload, and the opportunity for employee input concerning the changes were all embodied in its revised bargaining proposals submitted on April 7. It is undisputed that Respondent refused to bargain on all of the Union's proposals.
It is well established that an activity's failure to bargain on the impact and implementation of work assignments and staffing changes is an unfair labor practice in violation of Section 7116(a)(1) and (5). Federal Correctional Institution, 8 FLRA 604, 8 FLRA No. 111 (1982); Bureau of Governmental Financial Operations Headquarters, 11 FLRA 334, 11 FLRA No. 6 1983. Respondent asserts in defense of its refusal to bargain that the changes had insubstantial impact and/or the Union's proposals were non-negotiable. The reassignment clearly had adverse impact on bargaining unit employees. Specifically, Heavey was reassigned to aged claims, a workload undisputedly more difficult than disability claims due to restrictive time limits, increased reviewability, and complex eligibility issues. O'Malley's reassignment to post entitlement work took her out of payment authorization, a grade determining factor for claims representatives. Furugori was being denied the opportunity to learn the more complex aged workload which had potential impact on her promotion opportunities with the agency. The Union's proposal requiring employee input prior to final assignment decisions being made was negotiable inasmuch as the proposal merely required management to give consideration to the stated preferences of the employees regarding the assignments but [ v22 p115 ] reserved for management the right to assign work or to select any particular employee. Social Security Administration, 11 FLRA 608, 11 FLRA No. 103 (1983). Respondent refused to view the proposed employee assignments as an expression of employee preferences for its consideration only. Similarly, the Union's proposal that the assignments be fair and equitable established a general, non-quantitative requirement by which management's assignment of work could be evaluated. It did not interfere with management's right to make assignments based on personnel requirements and was therefore within the duty to bargain. U.S. Marshals Service, 8 FLRA 268, 8 FLRA No. 62 (1982). The Union was clearly entitled to obtain management's position regarding the effect of the changes on prior rotation agreements before Respondent's unilateral implementation of what appeared to be a breach of such agreements.
Finally, there is no evidence of any overriding exigency which required the proposed changes to be implemented only two workdays after the Union's submission of its revised proposals on April 7. Absent such exigency, the duty to bargain in good faith required Respondent to bargain with the Union to agreement or impasse on its negotiable proposals. See, Bureau of Government Financial Operations, supra; Bureau of Prisons, Lewisburg Penitentiary, 11 FLRA 639, 11 FLRA No. 111 (1983).
In summary, Respondent was obligated to bargain in good faith with the Union regarding the impact and implementation of the proposed Title XVI reorganization. Its refusal to do so was violative of Section 7116(a)(1) and (5) of the Statute.
E. Alleged Refusal to Bargain in Good Faith Regarding the Title II Reorganization in Violation of Section 7116(a)(1) and (5) (Case No. 9-CA-30395).
1. Paragraph 8(d) of the September 20 Complaint
Commencing on April 27 and continuing through April 29, Respondent implemented a major reorganization of the Title II work units in the Office. The reorganization resulted in the merger of three separate Title II work units and transformed Title II claims representatives from specialists handling only one type of Title II case to generalists responsible for all three types of Title II cases. Respondent does not dispute that the reorganization had a substantial impact on existing working conditions, but rather claims it reached agreement on the changes prior to implementation. The credible evidence establishes that no agreement had been reached and the Union was awaiting management's final proposals at the time the reorganization was unilaterally implemented. [ v22 p116 ]
The changes were substantial in nature and clearly required the activity to bargain upon the Union's request. The Union repeatedly requested bargaining on these changes and at no time reached any agreement with management thereon or acquiesced in any of management's proposals. The Union reminded Respondent of its desire to bargain on the changes as late as the same day of implementation and was given every reason to believe management intended to submit a final set of proposals and bargain prior to implementation. Management's failure to do so absent any evidence of overriding exigency constitutes bad faith bargaining in violation of Section 7116(a)(1) and (5). Department of Defense Ordnance Station, 4 FLRA No. 100 (1980); Department of the Air Force Scott Air Force Base, 5 FLRA No. 2 (1981).
2. Paragraphs 8(b) and (c) of the September 20 Complaint; Alleged Formal Discussions Without Prior Notice to the Unions.
The April 20 and 21 meetings held by management with unit employees were formal meetings within the meaning of Section 7114(a)(2)(A). However, the credible evidence establishes that the Union was provided prior notice and the opportunity to select its own representative at these meetings as required by Section 7114(a)(2)(A). Accordingly, these meetings were not violative of Section 7116(a)(1)(5) and (8) of the Statute.
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, Baltimore, Maryland shall:
1. Cease and desist from:
(a) Making unilateral changes in general conditions of employment for employees exclusively represented by the American Federation of Government Employees, AFL - CIO (AFGE), such as the reorganization of the Title 11 and Title XVI initial claims units in its South Seattle Branch Office, without notifying AFGE of the proposed change and, upon request, negotiating with AFGE to the extent required by the Federal Service Labor - Management Relations Statute. [ v22 p117 ]
(b) Bypassing the AFGE and dealing directly with unit employees represented by the AFGE concerning conditions of employment.
(c) Telling an AFGE representative that the Branch Manager wants his next Documented Progress Review (DPR) to reflect Union activity in a negative way; threatening a Performance Improvement Plan (PIP) and stating that the Branch Manager is timing the AFGE representative's interviews with the public in order to interfere with or discourage AFGE representatives in the exercise of rights accorded by the Statute.
(d) Discriminating against employees because of their union activities by evaluating said employees in a Documented Progress Review or other work review in an adverse manner for lower work production resulting from official time spent on union activities.
(e) 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 effectuate the purposes and policies of the Statute.
(a) Upon request, bargain with the AFGE concerning the impact and implementation of changes implemented in Title 11 on or about May 2, 1983, stemming from the reassignment of a Title 11 employee to Title XVI, and in Title XVI on or about April 11, 1983, stemming from the reassignment of an Initial Claims Unit employee to the Post Entitlement Unit.
(b) Rescind the Documented Progress Review issued to John Mack in March 1983 and reevaluate Mack, taking into consideration Mack's time spent on approved official time for labor-management relations, when assessing his level of production for purposes of that Documented Progress Review.
(c) Post at its facilities at the South Seattle Branch Office copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon [ v22 p118 ] receipt of such forms, they shall be signed by the District Manager and shall be posted and maintained by the District Manager 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.
(d) Pursuant to 5 C.F.R. section 2423.30 notify the Regional Director, Region IX, Federal Labor Relations Authority, 530 Bush Street, Room 542 San Francisco, California 94108, 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 complaints as to which no violations have been found be, and they hereby are, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: May 2, 1984
Washington, D.C.
[ v22 p119 ]
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 change conditions of employment for employees exclusively represented by the American Federation of Government Employees, AFL - CIO (AFGE) without notifying AFGE of our proposed change and, upon request, negotiating with AFGE to the extent required by the Federal Service Labor - Management Relations Statute.
WE WILL NOT bypass AFGE by dealing directly with employees represented by AFGE regarding proposed changes in conditions of employment.
WE WILL NOT tell an AFGE representative that the Branch Manager wants his next Documented Progress Review (DPR) to reflect Union activity in a negative way, threaten a Performance Improvement Plan (PIP) or state that the Branch Manager is timing the AFGE representative's interviews with the public in order to interfere with or discourage AFGE representatives in the exercise of rights accorded by the Statute.
WE WILL NOT discriminate against our employees because of their union activities by evaluating said employees in a Documented Progress Review or other work review in an adverse manner for lower work production resulting from official time spent on union activities.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of rights assured them by the Federal Service Labor - Management Relations Statute. [ v22 p120 ]
WE WILL, upon request, bargain with the American Federation of Government Employees concerning the impact and implementation of the changes implemented in Title II on or about May 2, 1983, stemming from the reassignment of a Title II employee to Title XVI, and in Title XVI on or about April 11, 1983, stemming from the reassignment of an Initial Claims Union employee to the Post Entitlement Unit.
WE WILL rescind the Documented Progress Review issued to John Mack in March 1983, and re-evaluate Mack, taking into consideration Mack's time spent on approved official time for labor-management relations, when assessing his level of production for purposes of that Documented Progress Review.
________________________________
(Agency or 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 for the Federal Labor Relations Authority, Region IX, whose address is: 530 Bush Street, Room 542, San Francisco, California 94108 and whose telephone number is: (415) 556-8106. [ v22 p121 ]
FOOTNOTES
Footnote 1 The General Counsel excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings.
Footnote 2 The Consolidated Amended Complaint dated July 29, 1983 alleged, inter alia, that Respondent timed the work interviews with the public conducted by employee John Mack because of Mack's union activities in violation of section 7116(a)(1) and (2) of the Statute (GC Exh. 1(q) 7(a), 8 and 15). In light of Respondent's stipulation at hearing in response to General Counsel's subpoena duces tecum that no recordation or documentation of timing work interviews taken by claims representatives in the office exists, the General Counsel moved to withdraw that portion of the Consolidated Amended Complaint alleging that Mack's interviews were actually timed in violation of section 7116(a)(1) and (2). The motion is granted.
Footnote 3 The General Counsel's unopposed motion to correct the transcript is granted; the transcript is hereby corrected as set forth therein.
Footnote 4 Allard admits discussing Mack's upcoming DPR with Mack in mid-February but denies saying that Saunders wanted Mack's DPR to negatively reflect his Union activities (Tr. 362-363). 1 credit Mack's specific and detailed testimony on this point.
Footnote 5 Saunder's testimony that the DPR did reflect Mack's Union activities is not credible (Tr. 347-348). First, the DPR on its face sets forth a strict 25% standard without any limitation or consideration of time spent on Union activities. Second, Saunders's assertion contradicts her own prior testimony that when she reviewed the DPR she was aware of the problem that no consideration was made for Mack's Union activities and instructed Allard to deduct that time. According to Saunders, Allard didn't have the official time calculation at the time she reviewed the DPR with him (Tr. 275). Notwithstanding her alleged concerns about the official time issue, Saunders admitted on cross examination that she never directed Allard to change the final DPR (Tr. 348). Mack's next DPR, issued in August of 1983, several months after the instant charge was filed, reiterates that 25% production expectation, but stated that Mack's Union activities had been considered in connection therewith (GC Exh. 42).
Footnote 6 Allard testified that he told Mack management was considering putting him on a PIP and that he had discussed the matter with Saunders, but nothing final had been decided. (Tr. 363-364). Betty Heavey, an employee in the Office who was riding home with Allard that day, overheard this conversation and corroborated Mack's testimony that Allard said Saunders had asked him to put Mack on a PIP (Tr. 196-197).
Footnote 7 Allard testified that Macks was the one who mentioned the timing of interviews. (Tr. 365). 1 credit Mack's testimony in this respect.
Footnote 8 Saunders admits making the call to Saul and telling him that Mack was a liar, but denies doing so on February 16th (Tr. 291). 1 credit the testimony of Saul in this regard. Saul's testimony was also corroborated by Mack's testimony that a couple of days after the February 16 meeting Saul told him that Saunders had called on February 16 regarding Mack's performance as a Union representative (Tr. 56).
Footnote 9 The medical determination in disability cases is made by appropriate state agencies rather than by Social Security Administration employees (Tr. 64).
Footnote 10 The post-entitlement work to which O'Malley was reassigned did not involve payment authorization, a grade determining factor for the claims representative, GS-10 (Tr. 219-220).
Footnote 11 Allard claimed that he ran the amended proposal by Mack (Tr. 377). 1 credit Mack's testimony in this regard in light of the record as a whole.
Footnote 12 The Title XVI reorganization was one of several matters Mack dealt with in the week of O'Malley's absence (April 4-8) (Tr. 219).
Footnote 13 O'Malley denied that she received any notification of the April 20 meeting. I credit Saunders' testimony on this point.
Footnote 14 Mack denied that he received any notice of the meeting prior to the meeting. I credit the testimony of Saunders and Winn concerning a conversation with Mack prior to the meeting.
Footnote 15 Saunders testified that she and O'Malley reached agreement on the Title 11 changes immediately after the meeting and Saunders was supposed to reduce it to writing (Tr. 321). O'Malley's testimony that it was merely agreed that Saunders would give the Union revised proposals is more credible considering the record as a whole.
Footnote 16 Saunders claims she showed the April 29 memoranda to Mack prior to their distribution to employees and that he requested official time to poll the employees thereon (Tr. 321-322). Saunders' testimony is refuted by Mack and cannot be supported by the weight of the evidence. As evidenced by GC Exh. 4, 5, 24, 26 and 27 Mack habitually utilized official time request forms to request official time for representational matters thereby creating a record of such time. There is no evidence of any such form here.
Footnote 17 For example, under Allard's April 29 policy memoranda, Mack was given an equal share of case responsibility despite Respondent's knowledge of his extensive use of work time for representational activities during this period (Tr. 120-121).
Footnote 18 O'Malley sent Saunders a July 29 memorandum several months after the instant charges citing several "commitments" regarding the changes (R Exh. 4). O'Malley testified that she wrote the memorandum pursuant to employee request and that had there been any prior collective bargaining agreement she would have filed a grievance (Tr. 403). Saunders confirmed on cross-examination that she considered the policy statements contained in the April 29 memoranda on the restructuring of the Title II unit as management commitments upon which employees should be able to rely. (Tr. 332-333).