14:0028(5)CA - HHS, SSA and AFGE -- 1984 FLRAdec CA
[ v14 p28 ]
The decision of the Authority follows:
14 FLRA No. 5 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 8-CA-1251 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and a brief in support thereof. 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 in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendation dismissing the complaint. As found by the Judge, the meetings in question were not formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. In this regard, the Authority notes that the meetings merely involved routine and periodic counselling by a first-level supervisor with no other management representative present regarding one employee's job performance. See Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24(1982). See also, statement of Congressman Ford of Michigan with respect to the meaning of section 7114(a)(2)(A) of the Statute wherein he stated "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. 29,187(1978), and similar statement of Congressman Clay of Missouri, 124 Cong.Rec. 29,200(1978). ORDER IT IS ORDERED that the complaint in Case No. 8-CA-1251 be, and it hereby is, dismissed. Issued, Washington, D.C., February 6, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No.: 8-CA-1251 E. A. Jones, Esq. For the General Counsel Mr. Jeffrey H. Dasteel For the Charging Party Mr. Wilson Schuerholz For the Respondent Before: ELI NASH, JR. Administrative Law Judge DECISION I. Statement of the Case This proceeding arose pursuant to the Federal Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute.) Pursuant to an unfair labor practice charge filed on August 3, 1981, by American Federation of Government Employees, AFL-CIO (hereinafter called the Union) against Department of Health and Human Services, Social Security Administration (hereinafter called Respondent), the Regional Director for Region 8 of the Federal Labor Relations Authority, issued a Complaint and Notice of Hearing on November 16, 1981. The Complaint alleges that Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to comply with the provisions of section 7114(a)(2)(A) of the Statute, and by unilaterally instituting changes in practices and procedures concerning promotion by establishing certain processing time standards for the granting of promotions for claims development clerks, without affording the Union adequate notice and an opportunity to bargain over the impact and implementation of such practices and procedures. A hearing was held before the undersigned in Oceanside, California at which all parties were represented and afforded full opportunity to examine and cross-examine witnesses and to introduce evidence. Post-hearing briefs were filed and have been duly considered. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions and recommendations: II. Statement of the Facts Respondent maintains a District Office in Oceanside, California which serves the general public in answering questions concerning Social Security benefits, receives and processes applications for Social Security benefits, and processes requests for original and replacement Social Security cards. There is no question of jurisdiction in this matter. Ruth Westrick is a claims development clerk (CDC) at Respondent's Oceanside District Office. Ms. Westrick has been the account numbers clerk for the office since February 1981. Claims development clerks generally perform various clerical functions in the District Office. Advancement for claims development clerks is non-competitive to the GS-4 grade level, the journeyman level for the classification. Ms. Westrick is responsible for the account numbers function in the District Office. In that position she was a GS-3. The account numbers clerk position occupied by Ms. Westrick involves the processing of application forms (Form SS-5) for new or duplicate (replacement) account numbers (social security numbers). Such applications are filed by individual claimants either in person or by mail. After receiving and filing, the account numbers clerk is responsible for reviewing all applications for the accuracy and sufficiency of the requested information and verifying the proofs submitted with the application. Applications for new Social Security numbers are forwarded to Baltimore, Maryland, for final processing. Duplicate requests are processed in the District Office by entering the information into the EVAN computer (Electronic Verification of Account Numbers). The verification or lack of verification (and the reason why) comes back to the account numbers clerk in the form of a computer printout. Unverified account numbers call for further investigation by the account numbers clerk by telephone or otherwise. Verified numbers are then typed onto cards, the information logged, and the cards mailed to the applicants. Where there has been a change of information regarding an account number, the SS-5 form is sent to Pennsylvania. Forms which did not involve changes but, only reissuance of a card are destroyed by a paper shredder. Approximately thirty-five to sixty SS-5 forms are processed on a daily basis, however, most of these requests are duplicates. In addition to the account number duties, Westrick since February 1981, also performed back up receptionist functions. This work involved relieving the receptionist or assistant receptionist for breaks and lunch hour and assisting at the reception desk whenever there is a backlog of claimants. This back up position consumed about two hours per day, and in some instances, if the receptionist is on leave, more. In February 1981 when Westrick took over the account numbers clerk position, a three-week backlog existed in the typing of the cards and a backlog in the mail. Such a backlog was fairly common prior to the time Westrick assumed the account numbers clerk position. The most common backlogs, however, appear to have occurred during the summer due to student requests for cards. Westrick, since December, 1981, has also devoted 25% of her duty time to other clerical work, answering the telephone and controlling overpayments for the Office's Service Representatives. Prior incumbents in the account numbers position, which is at a GS-3 level, previously had no problem advancing to the claims development clerk journeyman level of GS-4 despite the presence of a backlog. No standards, such as eliminating the backlog, had previously been set for promotion of claims development clerks to account numbers clerk GS-4. Westrick's immediate predecessor in the account numbers clerk position was one Richard De Los Santos. Mr. De Los Santos was employed as the full-time receptionist and account numbers clerk from 1979 to mid-1980. In 1980 he became a backup receptionist to the new full-time receptionist, Richard Sanders. Thereafter, De Los Santos performed reception duties when Sanders was on a break or at lunch. During his tenure as account numbers clerk, there are backlogs, however, De Los Santos obtained assistance in working on the backlogs. Despite the existence of backlogs, De Los Santos was promoted to a GS-4 in August 1980 and to a Service Representative in February 1981. His supervisor had never discussed with him any specific standards that had to be met for promotion to GS-4. However, his immediate supervisor did check from time to time and "ask where I was and if I was behind and so forth." When Westrick was assigned to the account numbers clerk position, District Manager Alvillar's intention was, according to his testimony, that unlike prior incumbents in the position, she would work primarily on account numbers to remove the backlog and to keep the workload under tight control and on a current basis. Westrick sat at the front desk for two weeks with De Los Santos before he entered training for the Service Representative position. Sometime around March 24, 1981, Westrick underwent a quarterly evaluation by Operations Supervisor Chris Senelly. Generally, quarterly evaluations take place in the Oceanside District Office between the supervisor and the employee and involves review and discussion of the employee's performance. At this particular meeting the backlog in the mail, EVAN and typing, which Westrick had inherited from the prior account numbers clerk, were discussed. Westrick, it was agreed, would be relieved of the back-up receptionist job for one week to work on the backlog in the mail. Also Senelly informed Westrick that she should be "current" in her duties; Senelly left it to Westrick's incoming supervisor, Marvin Mueller, who was present, to define that term the following week. However, the later meeting between the two never occurred. Nor was there any discussion of what was necessary in order for Westrick to be promoted to GS-4 at the March 24, 1981, meeting. The next discussion in which Westrick participated regarding her job occurred June 30, 1981, when her supervisor, Mueller, conducted her next quarterly evaluation. During the course of this discussion, involving the audit which Mueller had conducted the day before, Mueller indicated to Westrick that she should stay more current in typing duplicate cards. He also indicated that this meant she should not allow more than three weeks from the time an SS-5 is received to the time the card is typed and mailed. His opinion was that a realistic goal indeed would be two weeks. Mueller testified that Westrick received assistance in the typing of duplicate cards prior to the June 1981 evaluation. Mueller allegedly recalled two occasions when this occurred, possibly during a Westrick absence. Westrick testified that she did not receive any assistance until after the June 30, 1981 meeting. Toward the end of the June 30 meeting Westrick inquired if she was going to be promoted to GS-4 since she had a year in grade as a GS-3. Mueller responded that she was not. Westrick then asked what was needed for the promotion and was told by Mueller that she had to become current, to get rid of the backlog. Mueller stated that he tried to "set up some goals for her to achieve to reach a level at which he could begin to evaluate her for promotion." Up until that point, according to Mueller, he had not even considered her for such a promotion. There is no question that no prior notice of the meeting was given to the Union. Westrick did not request union participation at this meeting nor is there any indication on the record that the Union normally became involved in these quarterly evaluation sessions. Following the meeting, Mueller briefed Alvillar on what had transpired and what he was trying to accomplish, including bringing Westrick's account numbers work current. The definition of "current" was also discussed between the two. Alvillar testified that the goal being established was to get the account numbers work once and for all under control on a current basis, which meant that things would be processed as they were received. According to Alvillar, Westrick had to bring her performance to that level before she would be evaluated for promotion. Alvillar characterized this as a routine goal-setting exercise, not the establishing of a processing time standard for granting a promotion. Alvillar further stated that the goal had never been applied to the position before. The claims development clerks job is undoubtedly one of varied clerical functions. According to Alvillar, "there are standards in terms of descriptive terms, such as work will be processed on a current basis, timely issued and accurately." There are no specific numericals assigned to these standards. Alvillar also indicated that the general written standards had been applied to some twenty claims development clerks that had gone through the Oceanside Office during the time he served as District Manager. Several times after the June 30, 1981, meeting, Westrick asked Mueller what it was going to take for her to get the GS-4 promotion. Mueller replied that he would discuss it with Westrick, however, no discussion took place. On July 9, 1981, Westrick went to union representative, Scott Dugan, and discussed the promotion matter. Dugan, subsequently, met with District Manager Alvillar on July 9, 1981, concerning Westrick's problem. During the course of the meeting, Alvillar indicated that specific goals had not yet been set for Westrick's position, but that some goals should be set. It was agreed that Westrick's immediate supervisor, Mueller, would put together the goals and standards which Westrick would have to meet to be promoted to GS-4. Further discussion with the Union was to take place before management met with Westrick and her Union representative to inform her of the goals established. The next day, Westrick asked Mueller about her promotion. Mueller requested that she accompany him to the vacant District Manager's office. There a discussion ensued regarding the goals Westrick would have to meet to be promoted to GS-4. The Union was not notified of this meeting. Mueller informed Westrick that he considered her current performance minimally satisfactory based on the backlog in her typing and the errors cited in the June 30, 1981, desk audit. Mueller stated that he would set a goal for Westrick of three weeks from the time of date of receipt of the SS-5 form, to the time the replacement card is sent out. He also said that she should eliminate her backlog and keep current with no more than a two day delay in the mail, EVAN and in the forwarding of original SSA applications. /1/ Westrick objected that she could not meet the standard because of the backlog in typing she faced. Westrick was very upset. Mueller responded that he would give Westrick relief by having summer aides work on the EVAN and on the logging of cards mailed. He said Westrick would not, however, receive any assistance in typing cards. Mueller promised to evaluate Westrick for a ninety-day period beginning August 1, 1981. He also promised her that if during that period she kept her work current by the standards he had just outlined, he would justify her promotion to GS-4. During the meeting Westrick looked to see if union representative Dugan could join the discussion; Dugan was apparently unavailable. Subsequent to the meeting, Westrick went to union representative Dugan and informed him of what had transpired. /2/ Westrick was provided the assistance requested in the July 10, 1981, meeting. According to Mueller, Westrick was able to meet the standard set forth in the July 14, 1981, memo. Also according to Mueller, Westrick was given additional duties after October 1981 and promoted to GS-4 in or around the end of November 1981. Discussion and Conclusions Respondent submits that it did not change any promotion criteria, but rather its action was part of its normal application of the general claims development clerks standard of an employee being current in his or her work. Respondent also discounts the argument that the meetings involved herein constituted formal discussions under section 7114 of the Statute, since it did not consider the substance of the quarterly evaluation sessions involved to be setting new job criteria for promotion. The General Counsel proceeds on the theory that Respondent intended to change the responsibilities of the account numbers clerk position thereby setting a promotional prerequisite for that position. Since there appeared to be some changes in the account numbers clerk position the General Counsel maintains that the Union should have been given notification and an opportunity to bargain concerning those changes. Further, the General Counsel asserts, as already stated, that the quarterly evaluation meetings were formal discussions within the meaning of the Statute. The record does not support the General Counsel's position on either account. The General Counsel's position that the quarterly evaluation meetings were used as a vehicle for announcement and discussion of a change with a unit employee is ill-founded. First, it is uncontradicted that the quarterly evaluations have always been held with employees to discuss their respective job performance. Indeed to discuss with employees their performance on already established criteria in their position. During the particular quarterly evaluation involved in this matter, Ms. Westrick was of course concerned with promotional potential to a GS-4 grade. Respondent's concern was centered more on how she was performing work in the GS-3 level as an account numbers clerk. I see no connection between telling an employee that they must perform work in a timely fashion and setting new criteria for that position. The record, in fact, supports Respondent's contention that the quarterly evaluation is performed "if there is a problem, but the information is related to the employee, indicating that they are meeting the standards of their particular position, or they are not meeting the standards." The record suggests that Ms. Westrick was not meeting the standards for the GS-3 position and she was so informed at the quarterly evaluation. It is, therefore, found that Respondent did not establish any processing time standards in Westrick's case, but merely pointed out its expectations according to existing standards. To find otherwise would suggest that an employer is not entitled to apprise an employee of whether or not his or her performance is meeting expectations. There is also no suggestion from the record that any new standards were set. Contrariwise, the record shows that there was at times a backlog in account numbers work and that at least Westrick's predecessor was promoted while such a backlog existed. The record suggests, however, that her predecessor's backlog was mostly seasonal in nature. In any event, Westrick's predecessor testified that his supervisor on occasion checked to see what sort of backlog he had, indicating that keeping work current was always a goal of the office. Thus, while it appears that De Los Santos had backlogs, there is no suggestion on the record that those backlogs were to the same extent as the backlogs experienced by Westrick. What appears to have occurred in Westrick's case is that there were difficulties with her job performance in the account numbers clerk position for which she was obviously being counselled. The counselling pointed out to her that Respondent felt she was not performing her work in a timely fashion and thus not meeting the standards for the GS-3 position which she occupied. This was the full extent of those meetings. Moreover, Ms. Westrick did not request, nor did it occur to anyone that the Union need be present at any of these quarterly evaluations. In all the circumstances of this matter, it is found that the quarterly evaluation meetings were not formal discussions within the meaning of section 7114, and that the purpose of those two meetings was to discuss Ms. Westrick's job performance and not, as alleged by the General Counsel, to establish promotion criteria or standards. Based on the foregoing, it is recommended that the Authority dismiss the Complaint in Case No. 8-CA-1251, in its entirety. ORDER It is hereby Ordered, that the Complaint in Case No. 8-CA-1251 be, and it hereby is, dismissed, in its entirety. ELI NASH, JR. Administrative Law Judge Dated: August 19, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Mueller acknowledged on direct examination that the goal being set for Westrick had not been used for prior account numbers clerks. He stated that the goal was not a standard for her promotion. However, he admitted on cross-examination that if Westrick had failed to meet the goal she would not have been promoted. /2/ A grievance was filed on Westrick's behalf challenging Respondent's failure to promote her to the GS-4 position.