Department of Health, Education and Welfare, Social Security Administration, Dayton Office, Dayton, Ohio (Respondent) and American Federation of Government Employees, AFL-CIO, Local 3448 (Complainant)

 

 1 FLRA No. 71
 
 DEPARTMENT OF HEALTH, EDUCATION,
 AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, DAYTON OFFICE,
 DAYTON, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3448
 Complainant
 
                                            Assistant Secretary
                                            Case No. 53-10584(CA)
 
                            DECISION AND ORDER
 
    ON MARCH 30, 1919, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN VIOLATIVE CONDUCT AS
 ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.  /1/
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
 SUBJECT CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  /2/
 
    ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 53-10584(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 19, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    MS. KATHRYN S. NORRIS
 
    7060 SANDALVIEW
 
    DAYTON, OHIO 45424
 
                            FOR THE COMPLAINANT
 
    MR. WILSON G. SCHUERHOLZ
 
    LABOR-MANAGEMENT RELATIONS STAFF
 
    SOCIAL SECURITY ADMINISTRATION
 
    ROOM 2218, WEST HIGH RISE BUILDING
 
    6401 SECURITY BOULEVARD
 
    BALTIMORE, MARYLAND 21235
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREINAFTER ALSO REFERRED TO AS THE "ORDER").  ALTHOUGH THE NOTICE OF
 HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
 SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, AND ALL
 PROCEEDINGS WERE CONDUCTED BEFORE THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, THIS DECISION IS ISSUED IN THE NAME OF THE
 AUTHORITY PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL
 REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION 2400.2).
 
    COMPLAINANT FILED A CHARGE ON FEBRUARY 13, 1978 (JT. EXH. 1) AND A
 COMPLAINT ON JUNE 20, 1978 (ASST. SEC. EXH. 1) ALLEGING A VIOLATION OF
 SECTION 19(A)(1) AND (4) OF THE ORDER.  ON AUGUST 17, 1978, COMPLAINANT
 FILED AN AMENDED COMPLAINT (ASST. SEC. EXH. 2) WHICH ALLEGED A VIOLATION
 OF SECTION 19(A)(1) OF THE ORDER.  NOTICE OF HEARING ISSUE ON AUGUST 25,
 1978, PURSUANT TO WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED
 ON NOVEMBER 8, 1978, IN DAYTON, OHIO.  AT THE CLOSE OF THE HEARING,
 DECEMBER 7, 1978, WAS FIXED AS THE DATE FOR THE MAILING OF BRIEFS AND
 RESPONDENT TIMELY MAILED ITS BRIEF ON DECEMBER 6, 1978, WHICH WAS
 RECEIVED BY THIS OFFICE ON DECEMBER 8, 1978, AND HAS BEEN CAREFULLY
 CONSIDERED.  ON DECEMBER 11, 1978, THE COMPLAINING PARTY, MS. KATHRYN
 NORRIS, ORALLY REQUESTED AN EXTENTION OF TIME TO FILE A BRIEF WHICH WAS
 CONFIRMED BY LETTER, DATED DECEMBER 11, 1978, RECEIVED BY THIS OFFICE ON
 DECEMBER 14, 1978.  ALTHOUGH SUCH REQUESTS MADE AFTER THE EXPIRATION OF
 TIME ALLOWED ARE NORMALLY DENIED, BECAUSE MS. NORRIS HAD, CONTRARY TO
 HER EXPECTATIONS, PRESENTED HER CASE WITHOUT ASSISTANCE AND HAD HAD NO
 PRIOR EXPERIENCE IN UNFAIR LABOR PRACTICE PROCEEDINGS, TO AFFORD MS.
 NORRIS EVERY OPPORTUNITY TO PRESENT HER POSITION, THE TIME FOR
 COMPLAINANT TO FILE A BRIEF WAS EXTENDED TO DECEMBER 29, 1978, AND
 RESPONDENT WAS GRANTED LEAVE TO RESPOND ON OR BEFORE JANUARY 9, 1979.
 NOTWITHSTANDING THE EXTENSION GRANTED, COMPLAINANT FILED NO BRIEF.
 
    MS. NORRIS IS DISTRICT REPRESENTATIVE OF LOCAL 3448 AND REPRESENTED
 THE COMPLAINANT AT THE HEARING.  MS. NORRIS WAS, IN REALITY, THE
 COMPLAINING PARTY AND, AS NOTED, CONTRARY TO HER EXPECTATIONS, PRESENTED
 HER CASE WITHOUT ASSISTANCE AND, IN EFFECT, APPEAR PRO SE.  RESPONDENT
 WAS REPRESENTED AT THE HEARING.  BOTH PARTIES WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN.  COMPLAINANT
 REQUESTED AND WAS GIVEN FULL OPPORTUNITY TO PRESENT ORAL ARGUMENT AND
 COMPLAINANT'S CONTENTIONS, FULLY STATED AT THE HEARING, HAVE BEEN
 CAREFULLY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
 AND ORDER.
 
                             FINDINGS OF FACT
 
    1.  THE PARTIES' CURRENT COLLECTIVE BARGAINING AGREEMENT /3/ (JT.
 EXH. 2) PROVIDES, IN PART, AS FOLLOWS:
 
                                "ARTICLE V
 
                                 "STEWARD
 
    "SECTION 2. . . . THE STEWARD OR ALTERNATE STEWARD WILL ARRANGE WITH
 HIS SUPERVISOR TO
 
    APPROVE A REASONABLE LENGTH OF TIME AWAY FROM HIS OFFICIAL DUTIES."
 
   .          .          .          .
 
 
                               "ARTICLE VIII
 
                      "EMPLOYEE-MANAGEMENT COMMITTEE
 
    "SECTION 1.  MANAGEMENT AND THE UNION AGREE TO ESTABLISH AN
 EMPLOYEE-MANAGEMENT COMMITTEE
 
    WITH MEETINGS TO BE HELD MONTHLY ON THE TUESDAY FOLLOWING THE UNION
 MEETING.  THIS COMMITTEE
 
    WILL BE COMPOSED OF FOUR MEMBERS:  2 REPRESENTATIVES FROM THE UNION
 AND 2 FROM
 
    MANAGEMENT.  PROPOSALS FOR EACH MEETING'S AGENDA WILL BE EXCHANGED
 NOT LESS THAN THREE DAYS
 
    BEFORE THE MEETING." (JT. EXH. 2)
 
    2.  PRIOR TO OCTOBER OF 1977, THE MONTHLY MEETINGS, WHICH MR.  GEORGE
 FARKAS, RESPONDENT'S DISTRICT MANAGER, LABELED "PAYDAY MEETINGS" TO
 DISTINGUISH FROM THE MEETINGS HELD THEREAFTER, NOTWITHSTANDING THE
 PROVISION OF ARTICLE VIII, SECTION 1 OF THE PARTIES' AGREEMENT, INVOLVED
 PERSONS WHO WERE NOT "UNION PEOPLE" AND "WERE TAKEN FROM VARIOUS UNITS."
 IN SEPTEMBER, 1977, COMPLAINANT FILED A CHARGE AND RESPONDENT AGREED TO
 DISCONTINUE THE "PAYDAY MEETINGS" AND TO HOLD ONLY UNION-MANAGEMENT
 MEETINGS AS PROVIDED BY ARTICLE VIII.
 
    3.  "PAYDAY MEETINGS" HAD BEEN HELD IN THE MORNING:  HOWEVER, THE
 TIME VARIED, SOME HAVING BEEN HELD AT 8:15 A.M., SOME AT 8:30, AND SOME
 AT 9:00 A.M.  NEITHER THE UNION NOR RESPONDENT DEMONSTRATED ANY
 CONSISTENT PRACTICE OF EXCHANGING AGENDA "NOT LESS THAN THREE DAYS
 BEFORE THE MEETING."
 
    4. THE FIRST UNION-MANAGEMENT MEETING WITH MEMBERSHIP AS SPECIFIED IN
 ARTICLE VIII, AT LEAST AS SHOWN BY THE RECORD, WAS HELD IN OCTOBER,
 1977.  THE TIME OF THIS MEETING WAS NOT SHOWN.
 
    5.  THERE WAS NO UNION-MANAGEMENT MEETING HELD IN NOVEMBER (MR.
 FARKAS INDICATED THE DATE WOULD HAVE BEEN NOVEMBER 16-- A WEDNESDAY--
 JT. EXH. 9);  THE DECEMBER MEETING WAS "SCHEDULE" FOR DECEMBER 29, A
 THURSDAY, BUT WAS RESCHEDULED FOR WEDNESDAY, DECEMBER 21, 1977, AT 2:00
 P.M.
 
    6.  THE JANUARY, 1978, MEETING PRESUMABLY "FELL" ON WEDNESDAY,
 JANUARY 25, 1978, AND COMPLAINANT SUBMITTED ITS AGENDA ON JANUARY 24,
 1978 (RES. EXH. 1).
 
    7.  IT IS NOT WHOLLY CLEAR WHAT GOVERNED THE "SCHEDULED" DATE OF
 THESE MEETINGS.  OBVIOUSLY, THE PROVISION OF ARTICLE VIII WERE NOT
 FOLLOWED AS TO THE DAY OF THE WEEK AND WHETHER THE DATE WAS GOVERNED BY
 "THE UNION MEETING" OR BY A PAYDAY IS UNCERTAIN BUT IS OF NO
 SIGNIFICANCE IN ANY EVENT.
 
    8.  IT IS CLEAR THAT NO TIME HAD BEEN DESIGNATED BY RESPONDENT FOR
 THE JANUARY 25, 1978, MEETING.
 
    9.  ON JANUARY 25, 1978, MS. NORRIS AND MR. PAUL LAVIN WERE OUTSIDE
 MR. FARKAS' OFFICE AT APPROXIMATELY 9:00 A.M. TO ATTEND THE
 UNION-MANAGEMENT MEETING WHICH THEY ASSUMED, FOR REASONS NOT READILY
 APPARENT IN VIEW OF THE FACT THAT "PAYDAY MEETINGS" HAD BEEN HELD AT
 VARIOUS TIMES, THAT THE DECEMBER, 1977, UNION-MANAGEMENT MEETING HAD
 BEEN HELD AT 2:00 P.M., AND THAT NO TIME HAD BEEN DESIGNATED BY
 RESPONDENT FOR THE JANUARY 25, 1978, UNION-MANAGEMENT MEETING.  MR.
 FARKAS WAS HAVING A MEETING WITH MS. KAREN COX, OPERATIONS SUPERVISOR
 AND MS. NORRIS' IMMEDIATE SUPERVISOR, AND WHEN HE BECAME AWARE THAT MS.
 NORRIS AND MR. LAVIN WERE PRESENT FOR THE MONTHLY UNION-MANAGEMENT
 MEETING, HE ASKED MS. COX TO EXPLAIN TO MS. NORRIS AND MR. LAVIN THAT
 THE UNION-MANAGEMENT MEETING WOULD NOT BE HELD UNTIL LATER IN THE DAY.
 MS. COX DID SO AND MR. LAVIN RETURNED TO HIS WORK STATION;  HOWEVER, MS.
 COX MET PRIVATELY WITH MS. NORRIS IN AN INTERVIEWING ROOM.  MS.  NORRIS
 TESTIFIED:
 
    "SHE (MS. COX) SAID THAT I DIDN'T REQUEST TIME FOR ANY OF MY UNION
 ACTIVITIES . . .AND
 
    DURING THE COURSE OF THE MEETING SHE WAS RATHER HARSH WITH ME.  SHE
 SAID THAT I HADN'T
 
    REQUESTED TIME, SHE SAID THAT I HAD TURNED AGENDA'S (SIC) IN LATE,
 THAT I WAS NOT SUPPOSED TO
 
    SAY THAT I WAS GOING TO A MEETING BUT I SHOULD ASK TO GO TO ANY
 MEETING, AND THERE WAS
 
    SOMETHING ELSE, I HAVE TO THINK FOR A SECOND.  SHE ASKED ME IF I HAD
 ANYTHING TO SAY ABOUT OUR
 
    DISCUSSION AND THE ONLY COMMENT I MADE TO HER WAS I FELT THAT IF
 THERE WAS ANYTHING IN
 
    RELATIONSHIP TO MY UNION ACTIVITIES IT SHOULD BE MR. FARKAS WHO
 SHOULD BE EXPLAINING THIS TO
 
    ME SINCE WE'RE ON A ONE TO ONE BASIS, HIM BEING THE DISTRICT MANAGER
 AND MY BEING THE DISTRICT
 
    REPRESENTATIVE.  AN I HAD NEVER BEEN APPROACHED BEFORE ABOUT IT.
 "(TR. 23-24)
 
    10.  THE JANUARY 25, 1978, UNION-MANAGEMENT MEETING WAS HELD AT
 APPROXIMATELY 1:00 P.M. ON JANUARY 25 (RES. EXH. 2) AND ALL ITEMS ON
 COMPLAINANT'S AGENDA (RES.  EXH. 1) WERE DISCUSSED.
 
                                CONCLUSIONS
 
    WHETHER THE PARTIES' CURRENT COLLECTIVE BARGAINING AGREEMENT IS
 "OUT-OF-DATE" THE PARTIES MUST DETERMINE FOR THEMSELVES.  OBVIOUSLY,
 NEITHER PARTY HAS EVIDENCED COMPLIANCE WITH ITS TERMS AS REGARDS ARTICLE
 VIII AND WHILE SECTION 2 OF THE ARTICLE V PROVIDES THAT THE STEWARD
 "WILL ARRANGE WITH HIS SUPERVISOR TO APPROVE A REASONABLE LENGTH OF TIME
 AWAY FROM HIS OFFICIAL DUTIES," SECTION 1 OF ARTICLE V PLAINLY STATES
 THAT "THE STEWARD'S FUNCTION WILL BE TO ASSIST ON-SITE DISTRICT AND
 BRANCH OFFICE EMPLOYEES IN THEIR RELATIONS WITH MANAGEMENT, WHEN
 REQUESTED TO DO SO, BY ASSISTING THEM IN PREPARING AND/OR PRESENTING
 GRIEVANCES . . ." LITERALLY, ARTICLE V DOES NOT REFER TO, NOR IS IT MADE
 APPLICABLE TO, ARTICLE VIII.
 
    ARTICLE VIII PROVIDES FOR AN EMPLOYEE-MANAGEMENT COMMITTEE;  PROVIDES
 THAT THERE SHOULD BE A MONT