09:0048(9)CA - Office of Program Operations, Field Operations, SSA, San Francisco Region and AFGE, Council of SS District Office Locals, San Francisco Region -- 1982 FLRAdec CA



[ v09 p48 ]
09:0048(9)CA
The decision of the Authority follows:


 9 FLRA No. 9
 
 OFFICE OF PROGRAM OPERATIONS
 FIELD OPERATIONS
 SOCIAL SECURITY ADMINISTRATION
 SAN FRANCISCO REGION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL OF
 SOCIAL SECURITY DISTRICT OFFICE
 LOCALS, SAN FRANCISCO REGION
 Charging Party
 
                                            Case No. 8-CA-390
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED.  THEREAFTER, THE CHARGING PARTY (AFGE) AND THE GENERAL
 COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS TO THE EXTENT
 CONSISTENT HEREWITH.
 
    IN FEBRUARY OR MARCH OF 1979, THE RESPONDENT'S RIVERSIDE DISTRICT
 AUTHORIZED THE HEMET BRANCH OFFICE TO ALLOW ITS PART-TIME EMPLOYEES TO
 WORK ADDITIONAL HOURS IN ORDER TO ALLEVIATE AN EXISTING BACKLOG.  THE
 UNION REPRESENTATIVE IN THE RIVERSIDE DISTRICT HAD BEEN INFORMED OF THE
 DECISION AND ITS TEMPORARY NATURE BEFORE THE PRACTICE WAS EFFECTED IN
 THE LATE SPRING AND SUMMER OF 1979;  SUCH PRACTICE CONTINUED UNTIL
 DECEMBER.  ON DECEMBER 11, 1979, THE HEMET BRANCH MANAGER APPROACHED TWO
 PART-TIME EMPLOYEES, INDIVIDUALLY, AT THEIR DESKS, AND, IN BRIEF
 CONVERSATIONS, INFORMED THEM THAT THE PRACTICE WAS BEING TERMINATED AND
 THAT THEY WERE TO RESUME THEIR NORMAL TOURS OF DUTY (35 HOURS PER WEEK).
  ON JANUARY 11, 1980, A MEETING TOOK PLACE AT WHICH WERE PRESENT THE TWO
 PART-TIME EMPLOYEES, THE ASSISTANT DISTRICT MANAGER, THE HEMET BRANCH
 MANAGER AND A SUPERVISOR FROM THE HEMET BRANCH OFFICE.  THE MEETING WAS
 INITIATED BY THE TWO EMPLOYEES WHO APPROACHED THE ASSISTANT DISTRICT
 MANAGER WHILE HE WAS IN HEMET ON OTHER BUSINESS.  THE CESSATION OF THE
 PRACTICE OF ALLOWING THE EMPLOYEES TO WORK EXTENDED HOURS, THE
 POSSIBILITY OF THE TWO EMPLOYEES BEING CONVERTED TO FULL-TIME POSITIONS,
 AND THE CARPOOL PROBLEMS OF ONE OF THE EMPLOYEES WERE DISCUSSED.
 
    IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS THAT, AS AFGE WAS
 GIVEN ADEQUATE ADVANCE NOTICE OF THE PRACTICE OF TEMPORARILY ALLOWING
 PART-TIME EMPLOYEES TO WORK ADDITIONAL HOURS TO ALLEVIATE THE BACKLOG IN
 THE HEMET OFFICE, AND DID NOT REQUEST NEGOTIATIONS REGARDING THE
 TEMPORARY PRACTICE, THE RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1)
 AND (5) OF THE STATUTE BY ITS ACTIONS WITH RESPECT TO THE TEMPORARY
 PRACTICE.  /1/
 
    AS FOR THE TWO MEETINGS WHICH OCCURRED ON DECEMBER 11, 1979, THE
 AUTHORITY FINDS THAT, IN VIEW OF THE FACT THAT THEY WERE NOT SCHEDULED
 IN ADVANCE, WERE BRIEF DISCUSSIONS AT THE DESKS OF THE INDIVIDUAL
 EMPLOYEES, AND INVOLVED ONLY THE HEMET BRANCH MANAGER AND ONE EMPLOYEE,
 THEY WERE NOT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
 7114(A)(2)(A) /2/ OF THE STATUTE.  /3/ SIMILARLY, THE AUTHORITY FINDS
 THAT THE MEETING WHICH OCCURRED ON JANUARY 11, 1980, WAS NOT A FORMAL
 DISCUSSION.  THUS, AS PREVIOUSLY STATED, THE RECORD SUPPORTS THE JUDGE'S
 CONCLUSION THAT THE MEETING IN QUESTION OCCURRED WHEN THE TWO EMPLOYEES
 APPROACHED THE ASSISTANT DISTRICT MANAGER WHILE HE WAS IN HEMET ON OTHER
 BUSINESS AND NOT AS A CONSEQUENCE OF ANY SPECIFIC ADVANCE ARRANGEMENTS.
 MOREOVER, WHILE TWO OTHER SUPERVISORS WERE PRESENT AT THE MEETING, THE
 RECORD ESTABLISHES THAT THEY WERE NOT PRESENT FOR THE PURPOSE OF
 PARTICIPATING IN THE MEETING WITH THE TWO EMPLOYEES BUT HAPPENED TO BE
 IN A MEETING WITH THE ASSISTANT DISTRICT MANAGER WHEN THE TWO EMPLOYEES
 APPEARED AND SOUGHT TO MEET WITH HIM.  UNDER THE CIRCUMSTANCES, THE
 AUTHORITY FINDS THAT THIS RELATIVELY IMPROMPTU MEETING, HELD FOR THE
 PURPOSE OF DISCUSSING THE CONCERNS OF TWO EMPLOYEES, WAS NOT A "FORMAL
 DISCUSSION" WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION
 7114(A)(2)(A) OF THE STATUTE.  /4/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-390 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    E. A. JONES
    JOSEPH SWERDZEWSKI, ESQS.
                         FOR THE GENERAL COUNSEL
 
    WILSON SCHUERHOLZ
                         FOR THE RESPONDENT
 
    JEFFERY H. DASTEEL
                         FOR THE CHARGING PARTY
 
    BEFORE:  ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
                            CASE NO.: 8-CA-390
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
 STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
 ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
 VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
 SEQ.
 
    PURSUANT TO A CHARGE ORIGINALLY FILED BY THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT
 OFFICE LOCALS, SAN FRANCISCO REGION, HEREIN CALLED THE UNION, ON MARCH
 3, 1980, AND AMENDED ON MAY 27, 1980, A COMPLAINT AND NOTICE OF HEARING
 ISSUED ON MAY 28, 1980 ALLEGING THAT THE OFFICE OF PROGRAM OPERATIONS,
 FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION,
 HEREIN CALLED RESPONDENT, HAD ENGAGED IN, AND IS ENGAGING IN, UNFAIR
 LABOR PRACTICES WITHIN THE MEANING OF SECTION 7116(A)(1), (5) AND (8) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, HEREIN CALLED
 THE STATUTE, BY UNILATERALLY CHANGED THE WORK HOURS OF PERMANENT
 PART-TIME BARGAINING UNIT EMPLOYEES AT ITS HEMET, CALIFORNIA BRANCH
 WITHOUT NOTIFYING AND AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN OVER
 THE IMPACT AND IMPLEMENTATION OF THE CHANGE;  AND, BY CONDUCTING
 MEETINGS ON OR ABOUT DECEMBER 11, 1979 AND JANUARY 1980 AT ITS HEMET,
 CALIFORNIA OFFICE WITH ONE OR MORE UNIT EMPLOYEES CONCERNING A
 GRIEVANCE, PERSONNEL POLICY OR PRACTICE, OR OTHER GENERAL CONDITIONS OF
 EMPLOYMENT WITHOUT THE PRESENCE OF A UNION REPRESENTATIVE AND WITHOUT
 AFFORDING THE UNION AN OPPORTUNITY TO BE PRESENT.
 
    RESPONDENT FILED AN ANSWER DENYING THE COMMISSION OF ANY UNFAIR LABOR
 PRACTICES.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 20, 1980, IN
 HEMET, CALIFORNIA.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE ANY
 EVIDENCE BEARING ON THE ISSUES HEREIN.  ALL PARTIES SUBMITTED BRIEFS
 WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, RESPONDENT AND THE UNION HAVE BEEN
 PARTIES TO A COLLECTIVE-BARGAINING AGREEMENT COVERING THE EMPLOYEES
 INVOLVED IN THIS MATTER.
 
    AROUND FEBRUARY OR MARCH 1979 RESPONDENT'S HEMET BRANCH MANAGER ELVIN
 LEONARD PROPOSED TO RIVERSIDE DISTRICT MANAGER ROBERT MCCLURE THAT THE
 HEMET OFFICE PERMANENT PART-TIME EMPLOYEES BE AUTHORIZED TO WORK HOURS
 IN EXCESS OF THEIR AUTHORIZED WEEKLY TOURS.  DISTRICT MANAGER MCCLURE
 APPROVED THE AUTHORIZATION.
 
    PRIOR TO THAT TIME PERMANENT PART-TIME EMPLOYEES JACQUELYN MALLORY
 WORKED 35 HOURS PER WEEK, HER TOUR OF DUTY BEING MONDAY THROUGH FRIDAY,
 8:30 TO 3:30.  SIMILARLY, PART-TIME EMPLOYEE NORINE STARK WORKED 35
 HOURS PER WEEK WITH HER HOURS BEING 8:30 TO 3:30.  PART-TIME EMPLOYEE
 MERRILL MEYER, WHO ONLY WORKED FOR RESPONDENT FOR A SHORT TIME DURING
 DECEMBER 1979 WORKED A 32 HOUR WEEK.
 
    AS A RESULT OF MCCLURE'S AUTHORIZATION JACQUELYN MALLORY REGULARLY
 WORKED A FORTY HOUR WEEK, EIGHT HOURS PER DAY FROM MAY 1979 UNTIL
 DECEMBER 11, 1979.  NORINE STARK WORKED FORTY HOURS PER WEEK /5/ FOR
 THREE WEEKS IN JUNE 1979 WHEN SHE VOLUNTARILY LEFT THE SHIFT AND AGAIN
 FROM LATE AUGUST UNTIL THE SHIFT WAS DISCONTINUED IN DECEMBER 1979.
 MERILL MEYER HIRED IN LATE NOVEMBER 1979 WORKED IN EXCESS OF HIS TOUR
 FOR ONLY ONE WEEK IN DECEMBER.  IN ORDER TO RECEIVE PAY FOR THE EXTRA
 HOUR WORKED EACH DAY, ALL THREE EMPLOYEES WERE REQUIRED TO SIGN DAILY ON
 AN OVERTIME SHEET AT THEIR SUPERVISORS' DESK.  IT IS UNDISPUTED THAT THE
 WORK WAS VOLUNTARY AND FOR THE DURATION OF THE BACKLOG IN HEMET.
 
    ON DECEMBER 11, 1979, BRANCH MANAGER LEONARD MET WITH MALLORY AT HER
 DESK AND INFORMED HER THAT SHE WOULD NO LONGER BE ABLE TO WORK FORTY
 HOURS PER WEEK.  WHEN QUESTIONED BY MALLORY, LEONARD EXPLAINED THAT THE
 DISTRICT OFFICE HAD ORDERED THE PRACTICE TO CEASE.  ON THE SAME DAY,
 LEONARD MET WITH STARK, AT HER DESK AND EXPLAINED THAT SHE WOULD HAVE TO
 GO BACK TO WORKING THIRTY-FIVE HOURS PER WEEK.  LEONARD ALSO MET WITH
 MEYER ON THAT DAY AND TOLD HIM THAT HE COULD NO LONGER WORK IN EXCESS OF
 HIS THIRTY-TWO HOUR APPOINTMENT.  EACH MEETING TOOK ONLY A MINUTE OR
 TWO.  THE RECORD DISCLOSED THAT NO UNION REPRESENTATIVE WAS PRESENT
 DURING THE DISCUSSION WITH ANY OF THE THREE EMPLOYEES.  ACCORDING TO
 LEONARD, ASSISTANT DISTRICT MANAGER BURDEN TOLD HIM THAT THE HEMET
 WORKLOAD COULD NO LONGER JUSTIFY THE EXTRA HOURS AND THAT THEY SHOULD BE
 DISCONTINUED IMMEDIATELY.
 
    SINCE JANUARY 1979 THE UNION'S REPRESENTATIVE FOR THE RIVERSIDE
 DISTRICT, WHICH INCLUDES THE HEMET BRANCH OFFICE, HAS BEEN CAROL ADAMS,
 A SERVICE REPRESENTATIVE WORKING IN THE RIVERSIDE DISTRICT OFFICE.
 THERE IS NO PERMANENT UNION REPRESENTATIVE IN THE HEMET OFFICE.  ADAMS'
 POINT OF CONTACT WITH MANAGEMENT WAS DISTRICT MANAGER ROBERT MCCLURE
 AND, IN HIS ABSENCE, ASSISTANT DIRECTOR MANAGER KEN BURDEN.  NEITHER
 ADAMS NOR ANY OTHER UNION REPRESENTATIVE WAS NOTIFIED IN ADVANCE ABOUT
 THE DECEMBER 11, 1979, CHANGE IN THE TOURS OF DUTY OF THE HEMET
 EMPLOYEES.
 
    SHORTLY AFTER THE DISCUSSION OF DECEMBER 11, 1979, STARK CONTACTED
 UNION REPRESENTATIVE ADAMS AND INFORMED HER OF THE CHANGE IN WORK HOURS
 THAT HAD OCCURRED.  THEY DISCUSSED WHAT COULD BE DONE ABOUT THE CHANGE
 AND WHETHER THE HOURS OR WORK PER DAY COULD BE ADJUSTED TO ACCOMMODATE
 STARK'S CARPOOLING NEEDS.  STARK PROPOSED A DIFFERENT SCHEDULE OF FOUR
 DAYS PER WEEK.  ADAMS SUGGESTED THAT UNION REPRESENTATIVE NANCY FINNERAN
 IN SAN DIEGO SHOULD BE CONTACTED.  SUBSEQUENTLY, FINNERAN AND STARK
 DISCUSSED THE POSSIBILITY OF FILING AN UNFAIR LABOR PRACTICE CHARGE.
 
    AFTER DECEMBER 11, BOTH MALLORY AND STARK SOUGHT A FURTHER
 EXPLANATION OF THE DECEMBER 11, 1979, CHANGE FROM LEONARD BUT WERE
 UNABLE TO OBTAIN A SATISFACTORY RESPONSE FROM HIM.  THEY ALSO DISCUSSED
 WITH LEONARD THE CARPOOL SITUATION OF STARK.  AT SOME POINT, THE TWO
 JOINTLY REQUESTED LEONARD TO ARRANGE A MEETING WITH ASSISTANT DISTRICT
 MANAGER BURDEN.
 
    MCCLURE TESTIFIED THAT HEMET'S BACKLOG WAS PRETTY WELL UNDER CONTROL
 IN OCTOBER OR NOVEMBER 1979 AND THAT THERE WAS NO FURTHER NEED TO GRANT
 ADDITIONAL TIME TO PART-TIMERS, PARTICULARLY IF THE DISTRICT WAS TO GET
 A HIGHER STAFF ALLOTMENT FROM REGION.  /6/ MCCLURE ALSO STATES THAT A
 PRACTICE EXISTED OF USING PART-TIMERS TO CLEAR UP BACKLOGS IN THE
 RIVERSIDE DISTRICT.  WHILE HE STATED THAT HE HAD DISCUSSED THE MATTER
 WITH THE UNION PRIOR TO AUTHORIZING THE USE OF PART-TIMERS HE COULD NOT
 RECALL WITH WHOM HE HAD DISCUSSED SUCH USE OF PART-TIME EMPLOYEES.
 
    AT ONE POINT, MCCLURE TESTIFIED THAT HE HAD DISCUSSED BOTH THE
 AUTHORIZATION AND ITS CESSATION OF THE USE OF PART-TIMERS WITH ADAMS.
 MCCLURE ALSO CONTENDS THAT IT WAS MADE CLEAR THAT THE PRACTICE WAS
 TEMPORARY TO END WHEN HEMET'S BACKLOG REACHED A REASONABLE SIZE.
 REGARDING THE AUTHORIZATION BURDEN INDICATED THAT ADAMS "WAS CALLED TO
 THE DOOR AND KIND OF PARTICIPATED FOR A VERY SHORT PERIOD IN THE
 DISCUSSION." AT ANOTHER POINT MCCLURE TESTIFIED THAT HE HAD INFORMED A
 UNION REPRESENTATIVE OF THE DECISION TO USE PART-TIMERS IN THE HEMET
 OFFICE SOMETIME IN FEBRUARY OR MARCH, BUT HE WAS NOT CERTAIN THAT ADAMS
 WAS THAT UNION REPRESENTATIVE.  THE RECORD SHOWS THAT ADAMS WAS
 APPOINTED TO THE UNION REPRESENTATIVE POSITION IN JANUARY 1979 AND WOULD
 HAVE BEEN THE REPRESENTATIVE WHO SHOULD HAVE BEEN INFORMED.  MCCLURE
 ALSO TESTIFIED THAT TWICE, ONCE IN OCTOBER AND AGAIN IN NOVEMBER HE
 DISCUSSED DISCONTINUANCE OF THE EXPANDED WORK SHIFT WITH ADAMS.
 
    ON JANUARY 11, 1980, ASSISTANT DISTRICT MANAGER KEN BURDEN MET WITH
 STARK AND MALLORY FOR ABOUT AN HOUR AT THE HEMET BRANCH OFFICE.  BURDEN
 INSISTS THAT THE MEETING WAS SPONTANEOUS ALTHOUGH HE ALSO TESTIFIED THAT
 UNION REPRESENTATIVE ADAMS HAD ASKED HIM TO TALK WITH THE EMPLOYEES.
 ACCORDING TO MALLORY, AFTER NOT HAVING SATISFACTORY ANSWERS FROM LEONARD
 CONCERNING STARK'S CARPOOL PROBLEM, "WE CALLED HIM (BURDEN) AND ASKED IF
 HE WOULD COME DOWN TO HEMET AND TALK TO US." ALSO PRESENT AT THE MEETING
 WERE LEONARD AND OPERATIONS SUPERVISOR MAGGIE GULU.
 
    THERE IS NO DISPUTE AS TO WHAT WAS DISCUSSED AT THE MEETING.  IN
 RESPONSE TO QUESTIONS FROM STARK AND MALLORY, BURDEN EXPLAINED WHY THEY
 COULD NO LONGER WORK FORTY HOURS PER WEEK.  BURDEN ALSO EXPLAINED THAT
 IT WAS IMPERMISSIBLE FOR PART-TIME EMPLOYEES TO WORK IN EXCESS OF THEIR
 TOUR OF DUTY IF SO WORKING DENIED OVERTIME OPPORTUNITIES FOR FULL-TIME
 EMPLOYEES.  STARK AND MALLORY EXPRESSED CONCERN OVER STARK'S CARPOOL
 SITUATION.  THEY PROPOSED A WORK SCHEDULE OF EIGHT HOURS PER DAY, FOUR
 DAYS PER WEEK, WITH THREE HOURS ON A FIFTH DAY TO PERMIT CARPOOLING WITH
 FULL-TIME EMPLOYEES ON THE FOUR EIGHT-HOUR DAYS.  BURDEN REJECTED THE
 PROPOSAL AS NOT VIABLE.  HE EXPLAINED TO MALLORY AND STARK THAT THEY
 WERE IN CRITICAL POSITIONS IN INTERVIEWING THE PUBLIC AND WERE THEREFORE
 NEEDED DURING PEAK HOURS, FIVE DAYS PER WEEK.  BOTH MALLORY AND STARK
 INQUIRED OF BURDEN WHETHER THEY COULD BE CONVERTED TO FULL-TIME
 EMPLOYEES.  BURDEN EXPLAINED STAFFING REGULATIONS AND PERSONNEL
 CEILINGS.  HE INDICATED THAT IF FULL-TIME POSITIONS BECAME AVAILABLE AND
 THEIR SUPERVISOR RECOMMENDED THAT THEY RECEIVE FULL-TIME POSITIONS, HE
 WOULD SURELY CONSIDER STARK AND MALLORY AT THAT TIME.  THERE WAS NO
 UNION REPRESENTATIVE PRESENT.  NOR WAS THE UNION ADVISED IN ADVANCE THAT
 THE MEETING WOULD TAKE PLACE IN HEMET.
 
    SHORTLY THEREAFTER ON FEBRUARY 11, 1980 BOTH STARK AND MALLORY WERE
 MADE FULL-TIME CLAIMS REPRESENTATIVES.
 
                        DISCUSSION AND CONCLUSIONS
 
    A.  UNILATERAL CHANGE
 
    THE DECISION TO CHANGE CERTAIN MATTERS INCLUDING, AMONG OTHER THINGS,
 ITS MISSION, NUMBER OF EMPLOYEES AND TOURS OF DUTY RESERVED TO
 MANAGEMENT UNDER SECTION 7106 OF THE STATUTE.  IN ASSESSING THE WORK
 REQUIRED TO ACCOMPLISH ITS MISSION AN AGENCY MUST MAKE DETERMINATIONS
 BASED UPON ITS RESOURCES.  WHILE AN AGENCY MANAGEMENT MAY ELECT UNDER
 THE STATUTE TO BARGAIN ABOUT A DECISION IN THE RESERVED AREAS IT IS NOT
 REQUIRED TO NEGOTIATE ABOUT THAT DECISION UNLESS IT ELECTS TO DO SO.  IN
 THE INSTANT MATTER, THERE IS NO CONTENTION THAT RESPONDENT CONSISTENT
 WITH ITS MISSION IN ASSIGNING WORK AND ESTABLISHING PRIORITIES BASED
 UPON ITS RESOURCES DID NOT HAVE A RESERVED RIGHT UNDER SECTION 7106 TO
 ESTABLISH A TEMPORARY EXTRA HOUR PER DAY SHIFT FOR CERTAIN PART-TIME
 EMPLOYEES IN ITS HEMET OFFICE.  ASIDE FROM THE FACT THAT RESPONDENT DOES
 HAVE A RIGHT TO MAKE THE DECISION ON SUCH USAGE OF PERSONNEL, IT IS OF
 COURSE REQUIRED TO BARGAIN ABOUT THE IMPACT AND IMPLEMENTATION OF ITS
 DECISION IN A TIMELY FASHION.  HERE RESPONDENT DECIDED IN LATE FEBRUARY
 OR EARLY MARCH 1979 TO USE THE PART-TIME PERSONNEL IN THE HEMET OFFICE
 AN EXTRA HOUR PER DAY, IN EFFECT WORKING THEM AS FULL-TIME EMPLOYEES.
 
    RESPONDENT ASSERTS THAT THERE WAS AN ESTABLISHED PRACTICE OF USING
 PART-TIME EMPLOYEES ON A FULL-TIME BASIS IN THE RIVERSIDE DISTRICT AND
 THAT THE UNION WAS AWARE OF AND ACQUIESED IN SUCH PRACTICE.  I REJECT
 THIS CONTENTION, SINCE THERE IS NO RECORD EVIDENCE, OTHER THAN THE
 UNCORROBORATED TESTIMONY OF DISTRICT MANAGER MCCLURE THAT SUCH A
 PRACTICE EXISTED IN THE RIVERSIDE DISTRICT, AND FURTHERMORE, THERE IS NO
 RECORD EVIDENCE THAT SUCH A PRACTICE EVER EXISTED IN THE HEMET OFFICE.
 THEREFORE, IT IS CONCLUDED THAT THE RECORD HEREIN DOES NOT SUPPORT A
 FINDING THAT SUCH PRACTICE EXISTED IN THE HEMET OFFICE.  ASSUMING, THAT
 SUCH A PRACTICE DID EXIST IN HEMET, IT MAY WELL BE THAT RESPONDENT HAD
 AN OBLIGATION TO BARGAIN ABOUT ITS DISCONTINUANCE.  HOWEVER, IN VIEW OF
 THE FOREGOING, IT IS UNNECESSARY TO DECIDE THAT ISSUE IN THIS MATTER.
 
    RESPONDENT ALSO CONTENDS THAT IT INFORMED UNION REPRESENTATIVE ADAMS
 OF ITS DECISION TO USE HEMET OFFICE PART-TIME EMPLOYEES TO WORK THE
 EXTRA HOUR PER DAY UNTIL IT CLEARED UP AN EXISTING BACKLOG IN THE HEMET
 OFFICE.  IF SO, IT IS MY VIEW, THAT AN OBLIGATION TO BARGAIN CONCERNING
 ANY IMPACT ON THE HEMET EMPLOYEES EXISTED AT THE TIME THE UNION WAS
 INFORMED OF THE DECISION TO USE HEMET EMPLOYEES IN SUCH A FASHION AND
 NOT WHEN THE EXTENDED DAY OF SUCH EMPLOYEES WAS TERMINATED OR
 DISCONTINUED.  HOWEVER, THE GRAVAMEN OF THE COMPLAINT IN THIS CASE IS
 THAT RESPONDENT WAS OBLIGATED TO BARGAIN ABOUT ITS DECISION TO
 DISCONTINUE THE USE OF PART-TIME EMPLOYEES.  UNFORTUNATELY, ONCE THE
 BACKLOG HAS BEEN DISPOSED OF AND EMPLOYEES RETURNED TO THEIR NORMAL
 SHIFTS OR TOURS OF DUTY THERE IS NOTHING TO BARGAIN ABOUT.  TO FIND
 OTHERWISE WOULD BE TO SUGGEST THAT RESPONDENT WOULD BE REQUIRED TO
 CONTINUE THE PRACTICE OF USING THESE EMPLOYEES IN AN EXTENDED CAPACITY
 WHEN THE WORKLOAD WOULD NOT JUSTIFY SUCH USAGE.
 
    THE QUESTION OF WHETHER OR NOT THE UNION WAS INFORMED OF THE DECISION
 TO USE PART-TIME EMPLOYEES IN THE HEMET OFFICE ON A FULL-TIME BASIS AND
 THUS RECEIVED NOTICE OF THAT DECISION IS ONE OF CREDIBILITY WHICH IS
 RESOLVED IN FAVOR OF RESPONDENT.  BOTH DISTRICT MANAGER MCCLURE AND
 ASSISTANT DISTRICT MANAGER BURDEN TESTIFIED THAT ADAMS WAS TOLD OF THE
 DECISION IN A SHORT BUT INFORMAL MEETING.  ADAMS DOES NOT RECALL BEING
 TOLD OF THE DECISION, BUT DOES NOT DENY THAT SHE RECEIVED SUCH NOTICE.
 UPON REFLECTION, CONCERNING A PERSONNEL CHANGE, ADAMS TESTIFIED THAT IF
 SUCH PROBLEM WERE BROUGHT TO HER ATTENTION, SHE WOULD PROBABLY ASK FOR
 TIME TO TALK OR PERHAPS WORK OUT A COMPROMISE.  HOWEVER, SHE MAKES NO
 MENTION OF WHAT ACTION SHE WOULD TAKE IF A NEGOTIABLE PROPOSAL WAS GIVEN
 TO HER IN THE CAPACITY OF UNION REPRESENTATIVE.
 
    THE MEETING APPARENTLY DID NOT INVOLVE SPECIFIC DETAILS OF HOW AND
 WHEN THE EXTENDED WORKDAY WAS TO BE IMPLEMENTED, BUT, ADAMS, ACCORDING
 TO BURDEN AND MCCLURE OFFERED NO ALTERNATIVES OR PROPOSALS NOR DID SHE
 REQUEST BARGAINING ON THE MATTER.  HOWEVER, MCCLURE CONTENDS THAT IT WAS
 MADE CLEAR THAT THE HEMET PRACTICE WAS TEMPORARY AND TO END WHEN THE
 BACKLOG REACHED A REASONABLE SIZE.  LENDING FURTHER SUPPORT IS THE FACT
 THAT ADAMS DID NOT REQUEST BARGAINING IN DECEMBER 1979, WHEN MCCLURE
 TOLD HER THAT STARK'S CARPOOL PROBLEM WAS NON-NEGOTIABLE, ADAMS TOOK NO
 FURTHER ACTION ON THAT MATTER, OTHER THAN TO SUGGEST THAT STARK CONTACT
 ANOTHER UNION REPRESENTATIVE FROM THE "YELLOW BOOK".  NOTWITHSTANDING
 THE FACT THAT ADAMS DID NOT RECALL THE MEETING WITH MCCLURE AND BURDEN,
 I CREDIT THEIR VERSION AND FIND, THAT ADAMS WAS INFORMED THAT
 PART-TIMERS WERE TO BE USED IN HEMET TO WORK AN EXTENDED DAY, THAT THE
 EXTENDED DAY WAS ONLY TEMPORARY, AND TO END AT THE DURATION OF THE
 BACKLOG, BUT THAT SHE DID NOT REQUEST BARGAINING AT THE TIME THE
 NOTIFICATION WAS GIVEN.
 
    IN MY OPINION, IT IS CLEAR THAT THE DURATION OF THE USE OF PART-TIME
 EMPLOYEES AT HEMET WAS, AMONG OTHER THINGS, SUBJECT TO IMPACT AND
 IMPLEMENTATION BARGAINING, AT THE TIME THE DECISION TO EXTEND THE WORK
 HOURS OF THE PART-TIME EMPLOYEES WAS ANNOUNCED.  SINCE IT HAS BEEN FOUND
 THAT ADAMS WAS MADE AWARE OF THE DECISION IT WAS INCUMBENT ON HER TO
 REQUEST BARGAINING AT THAT TIME AND NOT AT THE CONCLUSION OF THE
 EXTENDED HOURS.
 
    ACCORDINGLY, IT IS FOUND THAT RESPONDENT DID NOT VIOLATE SECTION
 7116(A)(1) AND (5) OF THE STATUTE BY REFUSING TO BARGAIN CONCERNING THE
 IMPACT AND IMPLEMENTATION OF ITS DECISION TO DISCONTINUE ALLOWING
 PART-TIME EMPLOYEES IN THE HEMET OFFICE TO WORK AN EXTENDED WORKDAY
 DURING A BACKLOG.  /7/
 
    B.  THE FORMAL MEETINGS
 
    EVEN ASSUMING THAT AN OBLIGATION TO NEGOTIATE CONCERNING THE EXTENDED
 WORKDAY EXISTED, I CONCLUDE THAT THE MEETINGS ALLEGED BY THE GENERAL
 COUNSEL TO CONSTITUTE "FORMAL" DISCUSSIONS UNDER SECTION 7114(A)(2)(A)
 OF THE STATUTE DID NOT CONCERN CHANGES IN RESPONDENT'S PERSONNEL POLICY
 OR INVOLVE DISCUSSIONS OF GENERAL WORKING CONDITIONS IN VIOLATION OF
 SECTION 7116(A)(8) OF THE STATUTE.  THE GENERAL COUNSEL CITES CASES
 WHICH ARE DISTINGUISHABLE.  DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
 SERVICE, CHICAGO DISTRICT, CHICAGO, ILLINOIS, 1 FLRA NO. 14(1979);
 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER, 8 A/SLMR
 1237, A/SLMR NO. 1150(1978);  DEPARTMENT OF HEALTH, EDUCATION, AND
 WELFARE, OFFICE OF THE SECRETARY, OFFICE FOR CIVIL RIGHTS, 8 A/SLMR
 1211, A/SLMR NO. 1145(1978).  THESE CASES INVOLVE ACTUAL MEETINGS WHERE
 REPRESENTATIVES WERE NOT ALLOWED TO PARTICIPATE AFTER ATTENDING THE
 MEETINGS OR INAPPROPRIATE NOTICE WAS GIVEN.  IN THE INSTANT MATTER, THE
 UNION NEVER RECEIVED NOTICE OR AN OPPORTUNITY TO BE PRESENT WHEN THE
 THREE EMPLOYEES HEREIN WERE INFORMED THAT THEY MUST RESUME THEIR
 PERMANENT PART-TIME SHIFTS, BUT SUCH NOTICE WAS UNNECESSARY.
 
    ON DECEMBER 11, 1979 ONLY SUPERVISORY LEONARD AND THE INDIVIDUAL
 EMPLOYEE WERE PRESENT.  HOWEVER, THE MATTER DISCUSSED BY LEONARD AT THE
 MEETINGS DID NOT INVOLVE GENERAL WORKING CONDITIONS, GRIEVANCES OR
 PERSONNEL POLICIES OR PRACTICES.  THE DECEMBER 11, 1979 MEETINGS WITH
 EMPLOYEES WERE MERELY TO INFORM THEM THAT THEY WOULD BE RETURNING TO THE
 PART-TIME STATUS FOR WHICH THEY WERE HIRED.  FURTHERMORE, THE QUESTIONS
 DIRECTED AT LEONARD AS SHOWN BY THE RECORD INVOLVED NOT UNIT CONDITIONS,
 BUT ONLY A CONCERN FOR STARK'S CARPOOL SITUATION.
 
    THE STATUTE IS SILENT AS TO THE MEANING OF "FORMAL" DISCUSSION, BUT,
 THE LEGISLATIVE HISTORY OF THE STATUTE SHOWS THAT:
 
    THE COMPROMISE INSERTED THE WORD "FORMAL" BEFORE DISCUSSION MERELY IN
 ORDER TO MAKE CLEAR
 
    THAT THIS SUBSECTION DOES NOT REQUIRE THAT AN EXCLUSIVE
 REPRESENTATIVE BE PRESENT DURING
 
    HIGHLY PERSONAL, INFORMAL MEETINGS SUCH AS COUNSELLING SESSIONS
 REGARDING PERFORMANCE.  124
 
    CONG. REC. H9650 (DAILY ED. SEPT. 13, 1978)
 
    THE ABOVE LANGUAGE INDICATES THAT THERE ARE SITUATIONS IN WHICH THE
 PRESENCE OF THE EXCLUSIVE REPRESENTATIVE IS NOT ESSENTIAL. NOTIFICATION,
 WHERE A DECISION HAS ALREADY BEEN MADE WOULD NOT, IN MY OPINION RISE TO
 THE "FORMAL" LEVEL SET OUT IN THE STATUTE.  IN MY VIEW, THE PRESENCE OF
 THE EXCLUSIVE REPRESENTATIVE WAS NOT ESSENTIAL DURING ANNOUNCEMENTS.  I,
 THEREFORE, FIND THAT RESPONDENT'S CONDUCT ON DECEMBER 11, 1979 IN
 NOTIFYING EMPLOYEES THAT THEY WERE NO LONGER TO WORK AN EXTENDED
 WORKDAY
 DID NOT VIOLATE SECTION 7116(A)(8) OF THE STATUTE.
 
    SIMILARLY, I FIND THAT THE JANUARY 1980 MEETING BETWEEN MALLORY,
 STARK AND BURDEN DID NOT CONSTITUTE A FORMAL DISCUSSION AND THAT NO
 VIOLATION OCCURRED.  AT THE OUTSET, THE RECORD CLEARLY REVEALS THAT THIS
 MEETING WAS NOT HELD AT THE REQUEST OF BURDEN, AND THAT THE UNION ASKED
 FOR AND WAS AWARE THAT HE WOULD MEET WITH THESE EMPLOYEES, BUT DID NOT
 REQUEST TO BE PRESENT AT THE MEETING.  BURDEN TESTIFIED THAT HE MET THE
 EMPLOYEES PURSUANT TO A REQUEST FROM ADAMS.  THE RECORD ALSO SHOWS THAT
 STARK AND MALLORY HAD ALSO REQUESTED TO SEE BURDEN CONCERNING STARK'S
 SITUATION.  FURTHERMORE, THERE WAS NO GRIEVANCE OR DISCIPLINARY ACTION
 INVOLVED AND THAT MEETING DID NOT CONSTITUTE ONE WHICH INVOLVED A
 DISCUSSION OF TERMS AND CONDITIONS OF EMPLOYMENT IN THE UNIT, BUT MERELY
 THE CARPOOL SITUATION OF ONE INDIVIDUAL.  IN THIS CONTEXT, BURDEN'S
 TESTIMONY THAT ADAMS REQUESTED THAT HE SPEAK WITH THE EMPLOYEES WHEN THE
 OPPORTUNITY PRESENTED ITSELF IS CREDITED.  THEREFORE, EVEN ASSUMING THAT
 THE PURPOSE OF THE MEETING WAS TO DISCUSS WORKING CONDITIONS OR
 PERSONNEL CHANGES, THE UNION HAD AN OPPORTUNITY TO BE PRESENT, IF IT HAD
 SO DESIRED.
 
    CONCERNING THE MEETING, THE RECORD DISCLOSED THAT BURDEN WAS IN HEMET
 ON ANOTHER MATTER WHICH DID NOT INVOLVE THE PART-TIME EMPLOYEES AND THAT
 WHILE THERE STARK AND MALLORY SOUGHT HIM OUT FOR DISCUSSION.  THE
 SUBSTANCE OF THE MEETING AS THE RECORD DISCLOSES WAS TO DISCUSS STAFFING
 PATTERNS AND POSSIBILITIES FOR OBTAINING FULL-TIME EMPLOYMENT OR TO FIND
 A SOLUTION FOR STARK'S PROBLEM WITH HER CARPOOL.  BURDEN'S RESPONSES TO
 QUESTIONS CONCERNING PROPOSALS GIVEN BY STARK WERE MERELY A RESTATEMENT
 OF THE FULL-TIME EMPLOYMENT POTENTIAL AT THE HEMET OFFICE, AT THE TIME,
 A SUBJECT WHICH, IN MY VIEW, CAN CERTAINLY BE DISCUSSED WITH INDIVIDUAL
 EMPLOYEES WITHOUT THE PRESENCE OF THE EXCLUSIVE REPRESENTATIVE,
 PARTICULARLY IF THE REPRESENTATIVE HAS REQUESTED THE MEETINGS BUT HAD
 NOT REQUESTED TO BE PRESENT.  MOREOVER, THERE WAS NO ANNOUNCEMENT OF A
 CHANGE IN WORKING CONDITIONS OR PERSONNEL POLICIES AT THIS MEETING, FOR
 THE CHANGE, IF ANY, HAD BEEN EFFECTUATED A MONTH EARLIER.  TO FIND THAT
 AN EMPLOYER CANNOT DISCUSS EMPLOYMENT POTENTIAL, PARTICULARLY WHERE NO
 DISCIPLINARY ACTION OR TERMS AND CONDITIONS OF EMPLOYMENT ABOUT WHICH
 THERE IS NO OBLIGATION TO BARGAIN, WITH EMPLOYEES WITHOUT THE PRESENCE
 OF THE EXCLUSIVE REPRESENTATIVE, WOULD NOT EFFECTUATE THE PURPOSES OF
 THE STATUTE.
 
    UNDER ALL THE CIRCUMSTANCES, IT IS FOUND THAT BURDEN WAS REQUESTED TO
 AND DID SPEAK WITH MALLORY AND STARK, THAT THE UNION WAS AWARE THAT HE
 WOULD DO SO, IF THE OPPORTUNITY PRESENTED ITSELF, AND THAT HE MERELY
 EXPLAINED TO STARK AND MALLORY WHY THEIR HOURS HAD BEEN REDUCED.
 FURTHERMORE, IT IS FOUND THAT THE UNION HAD NOTICE, SINCE ADAMS
 REQUESTED THAT BURDEN MEET WITH THE EMPLOYEES AND, THE OPPORTUNITY TO BE
 PRESENT AT THIS MEETING, IF IT HAD SO REQUESTED.  IN ALL CIRCUMSTANCES,
 IT DOES NOT APPEAR THAT NOTICE OR AN OPPORTUNITY TO BE PRESENT WAS
 NECESSARY.
 
    ACCORDINGLY, IT IS FOUND THAT THE ALLEGATIONS OF THE COMPLAINT
 CONCERNING A VIOLATION OF SECTION 7116(A)(8) BASED ON THE JANUARY 1980
 MEETING SHOULD BE DISMISSED.
 
    HAVING FOUND AND CONCLUDED IN ALL THE CIRCUMSTANCES, THAT
 DISCONTINUING THE PRACTICE OF ALLOWING PART-TIME EMPLOYEES TO WORK ONE
 EXTRA HOUR PER DAY AND INFORMING THEM OF THE DISCONTINUANCE DID NOT
 VIOLATE THE STATUTE AND HAVING FURTHER FOUND, THAT THE MEETINGS ALLEGED
 TO HAVE OCCURRED ON DECEMBER 11, 1979 AND IN JANUARY 1980 DID NOT
 CONSTITUTE FORMAL DISCUSSIONS WHICH THE UNION WAS ENTITLED TO HAVE
 NOTICE AND TO ATTEND DID NOT VIOLATE THE STATUTE, IT IS RECOMMENDED THAT
 THE FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-390,
 ALLEGING VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE,
 BE, AND IT HEREBY IS DISMISSED, IN ITS ENTIRETY.
 
                         ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 4, 1981
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS
 UPON, AND SPECIFICALLY DOES NOT ADOPT, THE JUDGE'S STATEMENTS TO THE
 EFFECT THAT ONCE THE BACKLOG HAD BEEN DISPOSED OF AND EMPLOYEES RETURNED
 TO THEIR NORMAL SHIFTS OR TOURS OF DUTY THERE WAS NOTHING TO BARGAIN
 ABOUT BECAUSE A CONTRARY RESULT WOULD REQUIRE RESPONDENT TO CONTINUE
 THE
 PRACTICE OF USING THE EMPLOYEES IN AN EXTENDED CAPACITY WHEN THE
 WORKLOAD WOULD NOT JUSTIFY SUCH USAGE.
 
    /2/ SECTION 7114(A)(2)(A) PROVIDES:
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHAL