10:0115(24)CA - HHS, SSA, Bureau of Field Operations, San Francisco, CA and AFGE, Council of SS District Office Locals, San Francisco Region -- 1982 FLRAdec CA



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10:0115(24)CA
The decision of the Authority follows:


 10 FLRA No. 24
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION
 BUREAU OF FIELD OPERATIONS
 SAN FRANCISCO, CALIFORNIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
 SECURITY DISTRICT OFFICE LOCALS,
 SAN FRANCISCO REGION
 Charging Party
 
                                            Case No. 9-CA-368
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, /1/ THE AUTHORITY
 FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) /2/ BY MEETING WITH AND/OR BARGAINING
 DIRECTLY AND INDIVIDUALLY WITH EMPLOYEES IN THE UNIT CONCERNING TERMS
 AND CONDITIONS OF EMPLOYMENT ON FEBRUARY 28, 1980, IN DEROGATION OF THE
 CHARGING PARTY'S STATUS AS EXCLUSIVE REPRESENTATIVE, AND ADDITIONALLY
 VIOLATED SECTION 7116(A)(1) AND (8) BY HOLDING SUCH FORMAL DISCUSSIONS
 WITHIN THE MEANING OF SECTION 7114(A)(2)(A) /3/ WITHOUT PROVIDING THE
 UNION WITH NOTICE AND AN OPPORTUNITY TO BE PRESENT.
 
    ON AUGUST 30, 1979, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO (AFGE) WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF A
 NATIONAL CONSOLIDATED UNIT CONSISTING OF, INTER ALIA, A UNIT OF
 RESPONDENT'S EMPLOYEES FOR WHICH THE CHARGING PARTY WAS CERTIFIED AS
 EXCLUSIVE REPRESENTATIVE IN 1972.  NO NATIONAL COLLECTIVE BARGAINING
 AGREEMENT YET EXISTS, AND THEREFORE THE TERMS AND CONDITIONS SET FORTH
 IN THE PRE-CONSOLIDATION AGREEMENT NEGOTIATED IN 1977 BETWEEN THE
 RESPONDENT AND THE CHARGING PARTY REMAIN IN EFFECT.  /4/
 
    ON OR ABOUT FEBRUARY 28, 1980, ANITA BUCHANAN, RESPONDENT'S
 OPERATIONS SUPERVISOR AT THE PORTERVILLE BRANCH OFFICE IN PORTERVILLE,
 CALIFORNIA, HELD INDIVIDUAL DISCUSSIONS WITH BARGAINING UNIT EMPLOYEES
 WHEREIN SHE SOLICITED THEIR COMMENTS AND SUGGESTIONS WITH REGARD TO THE
 ASSIGNMENT AND DISTRIBUTION OF WORK FOLLOWING THE REASSIGNMENT OF SAUL
 SALMON, A BARGAINING UNIT EMPLOYEE, TO A 60-DAY DETAIL TO ANOTHER SOCIAL
 SECURITY OFFICE IN A DIFFERENT CITY.  THE DISCUSSIONS WERE HELD WITHOUT
 PROVIDING THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED AT
 THE MEETING.
 
    THE GENERAL COUNSEL CONTENDS THAT THE RESPONDENT'S INDIVIDUAL
 MEETINGS WITH BARGAINING UNIT EMPLOYEES CONSTITUTED DEALING DIRECTLY
 WITH UNIT EMPLOYEES ABOUT WORKING CONDITIONS, THEREBY UNLAWFULLY
 BYPASSING THE UNION.  THE GENERAL COUNSEL FURTHER CONTENDS THAT THE
 MEETINGS WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
 7114(A)(2)(A) OF THE STATUTE AND THAT THE RESPONDENT'S FAILURE TO
 PROVIDE THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED AT
 SUCH MEETINGS VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE.
 ON THE OTHER HAND, THE RESPONDENT ARGUES THAT IT HAD NO OBLIGATION TO
 AFFORD THE UNION AN OPPORTUNITY TO BE PRESENT AT THE MEETINGS BECAUSE IT
 HAD A RIGHT UNDER THE NEGOTIATED AGREEMENT TO HOLD DISCUSSIONS REGARDING
 THE DAY-TO-DAY OPERATIONS OF THE UNIT, /5/ AND THAT THE MEETINGS
 CONSTITUTED PERMISSIBLE INFORMAL CONTACTS FOR THE PURPOSE OF GETTING
 INPUT FROM STAFF MEMBERS.  THE RESPONDENT FURTHER ARGUES THAT BECAUSE
 THE UNION REPRESENTATIVE WAS PRESENT AT THE STAFF MEETING AND CHOSE NOT
 TO EXPRESS HIS VIEWS, HE CONSTRUCTIVELY WAIVED HIS RIGHT TO CONSULT ON
 THE ISSUE.
 
    AS REFLECTED BY THE CONTENTIONS OF THE PARTIES SET FORTH ABOVE, A
 CENTRAL ISSUE IS WHETHER THE DISCUSSIONS IN QUESTION WERE FORMAL OR
 INFORMAL.  ONLY IF THEY WERE "FORMAL" WITHIN THE MEANIN