14:0712(96)CA - HHS, SSA, San Francisco Region, San Francisco, CA and AFGE Council of Security District Office Locals, San Francisco Region -- 1984 FLRAdec CA
[ v14 p712 ]
The decision of the Authority follows:
14 FLRA No. 96 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION SAN FRANCISCO REGION SAN FRANCISCO, CALIFORNIA Respondent and AFGE COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS SAN FRANCISCO REGION Charging Party Case No. 9-CA-578 DECISION AND ORDER The Administrative Law Judge issued the attached 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. Exceptions to the Judge's Decision were filed by the General Counsel. 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 Recommended Order, as modified herein. In Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115 (1982), the Authority noted a number of factors relevant to a determination of whether meetings, alleged to be "formal discussions" within the meaning of section 7114(a)(2)(A) of the Statute, are in fact "formal" in nature. Thereafter, in Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984), the Authority emphasized that such factors were not intended to be exhaustive, that other factors may be identified and applied as appropriate in a particular case. Thus, in determining formality, the Authority will consider the totality of facts and circumstances presented. In the instant case, in finding that the General Counsel had failed to prove by a preponderance of the evidence that the meetings involved were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute, the Judge listed numerous factors she considered relevant to making such a determination. Although the Authority specifically does not pass upon the relevance of all the factors listed, the Authority concludes, in agreement with the Judge, that the meetings involved herein were not formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. In finding that the meetings were not "formal" in nature, the Authority notes particularly that they were not initiated solely by the Respondent, but rather resulted from the agreement reached between the Respondent and the Union to notify the employees of a change in their hours of work. /1A/ Further, the meetings were conducted by the employees' first level supervisor separately with each employee in an informal manner with no advance written notice or pre-planned agenda. ORDER IT IS ORDERED that the complaint in Case No. 9-CA-578 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., May 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 9-CA-578 Wilson Schuerholz, For the Respondent Vince Morgante, For the Charging Party Patricia Jeanne Howze, For the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp. III, 1979) (hereinafter referred to as the "Statute"), and the rules and regulations issued thereunder and published at 45 Fed.Reg. 3482 et seq., 5 C.F.R. 2421 et seq. The Charging Party (hereinafter also referred to as the "Union") filed the charge that initiated this proceeding on July 9, 1980. /1/ On September 30, the Regional Director, Region IX, of the Federal Labor Relations Authority (hereinafter, the "Authority") issued a Complaint and Notice of Hearing based on the Union's charge. The Complaint alleges that Respondent (also referred to as "SSA") committed unfair labor practices in violation of Section 7116(a)(1), (5), and (8) of the Statute. /2/ The violations allegedly arise out of a change in working hours of bargaining-unit employees. The change was announced to the employees on May 2. The Complaint alleges that the announcement was made without notice to the Union and without giving the Union an opportunity to bargain over the impact and implementation of the change. The Complaint also alleges that a supervisor of Respondent met and bargained directly and individually with the affected employees without effective notice to the Union or an opportunity for the Union to be present, in derogation of the Union's status as exclusive representative. A hearing on the matter was held on July 16, 1981, in Fresno, California. The parties introduced evidence and examined and cross-examined witnesses. Briefs were received, on August 27 from the Respondent, and on September 1 from the General Counsel. Based on the record made at the hearing, my observation of the demeanor of the witnesses, and the briefs, I make the following findings, and conclusions and recommended order. Findings of Fact 1. Respondent is an agency of the United States Government which operates a District Office in Fresno, California. The District Office operates four branches in and around the Fresno area and is under the direction of an Area Director, located in San Francisco. 2. The Charging Party is a labor organization and the exclusive representative of certain employees of Respondent, including Claims Development Clerks (hereinafter "CDSs") employed at the Fresno District Office and in its four branches. At all times herein pertinent, Sandra Bailie was the only Union contact person for management operating the Fresno District of Respondent, including its four branches. Representing management in labor-management matters were the District Manager, the Assistant District Manager, and the Chief Operating Officer of the Fresno District Office. 3. In March, Respondent's Fresno District Office offered the status of permanent parttime employee to certain CDSs who had been working as temporary employees, employed for a term of one year, and working 40 hours a week. In converting to permanent parttime employees, the CDSs accepting the offer signed a Form 50 on which was a "designated" tour of duty of 32 hours a week. (TR. 44). The CDSs signed the forms after they had accepted the offer and been told not to worry about the designated 32 hours, and that they would continue to work 40 hours a week, except for every fifth week, when they would work 32 hours. 4. Upon conversion, the CDSs immediately started to work a schedule of 40 hours a week for 4 weeks and 32 hours for the fifth week. The Fresno District Office believed it could work parttime employees on such a schedule by treating hours over 32 as overtime hours. 5. On Friday, May 2, a memorandum was received in the Fresno District Office from the Area Director. It accused the Fresno District of "playing games" and "Mickey-mousing" the hours of the parttime CDSs. (TR. 64, 76, 85). It ordered the practice to cease. Blanche Bartsch, the Chief Operating Officer, was informed of the memorandum by the Assistant District Director, shortly before noon, on May 2. She was "very upset" about it. (TR 80). She had employees willing to work the schedule, and who needed the money. There was plenty of work for them to do. And no more employees could be hired, at that time. 6. As soon as she learned of the memorandum, Ms. Bartsch told the Assistant District Manager that she would show it to Sandra Bailie and, if Ms. Bailie had any objection to it, "we'll have a formal meeting." (TR. 76-77). Ms. Bartsch testified as follows as to her conversation with Ms. Bailie: And so I went out to Sandy and I showed her the memo that we got. And I said, "I'm very upset about this, Sandy; but we were ordered to do this, and it appears we're going to have to follow these orders." And I asked her if she had any objection, or wanted a formal meeting over this, what would she like to do with this. And she just, being the reasonable person she always is, said well there's nothing you can do about it, so there's no need for a formal meeting. So I said okay, and we discussed it. And I said that I intended to tell them (the employees) right away because I felt they should know about this. And she said yes, do that. So I said that I would tell them in my office before the day's over, so that they know as soon as I know about. And I said I'd tell Mr. Petty to tell the branch managers and they in turn can tell their people. (TR. 77). Ms. Bartsch also told Ms. Bailie that: '(I)t appears we're going to have to do this effective on Monday, the 5th." (TR. 78). (TR. 77) Ms. Bartsch then went to the desk of each of the six parttime employees in the District Office and told them what had happened. The Assistant District Manager called the branch offices and directed that their parttime employees be informed of the Area Director's directive. 7. Ms. Bailie testified that she was not consulted about the matter. She also denied ever having oral discussions about such matters. She testified that discussions with management were always at formal meetings at which notes were made and kept. She made the notes, which were reviewed by management; and they constituted the only set of official notes maintained. Prior to testifying, the reviewed all the notes and found no reference to the matter at issue. Occasionally, notification of proposed changes would be given outside of meetings. Under these circumstances, Ms. Bailie would receive written notification in a sealed envelope left on her desk. These notices were promptly filed, along with minutes of meetings, in the District Office in Fresno. Ms. Bailie testified that she never received oral notification of a change in working conditions. 8. Ms. Bailie's testimony appeared to rely solely on the way business was customarily done. The business here at hand was unusual, however, and did not lend itself to handling in the customary manner. Ms. Bartsch's testimony was based upon her recollection of what, for her, was a very unsettling matter, and one which she would be likely to recall. The Area Director had accused her office of playing games and Mickey-mousing hours. She was the Chief Operating Officer and would feel personally accused. Also, the change was one which would impact adversely on the office workload. Ms. Bartsch seemed to be confident of her facts and honest in her recitation of them. I find Ms. Bartsch to be a more reliable witness than Ms. Bailie, and credit Ms. Bartsch's recollection, as set forth in finding 6, supra. Accordingly, it is found that Respondent's Chief Operating Officer gave notice to the appropriate Union official, Sandra Bailie, on May 2, shortly before the noon hour, of the cutback in hours and that it appeared that the cutback would have to be made effective on Monday morning, May 5; asked Ms. Bailie if she wanted a formal meeting over the matter; was told by Ms. Bailie that there was nothing Ms. Bartsch could do about it and so there was no need for such a meeting; and, after a discussion, agreed with Ms. Bailie that the employees affected should be told before the day was over, and that the branch managers should be told to inform the employees in their offices. 9. On Friday, May 2, at the Downtown Fresno Branch Office, Supervisor Cindy Robinson called the two parttime CDSs working there into the office of the Branch Manager. While seated in his chair, behind his desk, Ms. Robinson "informed" each of the CDSs that, commencing Monday, they would be working only 32 hours. (TR 40). She met with each CDS separately. Each meeting lasted about five minutes. Each CDS gave a clear account of what happened at the meeting with Ms. Robinson; and I credit their recollections over that of Ms. Robinson, who appeared somewhat hazy in the account she gave of each meeting. Marina Magdaleno testified that: Q. Was Ms. Robinson reading any documents to you? A. No. Q. Tell us, to the best of your memory, what was said during this meeting with Ms. Robinson on May 2nd. A. When I went into the office she said that she wanted to inform me that effective Monday, this was on a Friday, that I was no longer going to be able to work 40 hours a week, that I would only be able to work 32 hours a week as I had been doing on the fifth week. She gave me the alternatives of working either four days a week with one day off, or working four short days and one long day, just to keep it within the 32 hours. And that I was to let her know as to what my decision was, because these were the options she said that were given to her by the DO. Q. Did you ask Ms. Robinson any questions? A. Well, I asked her why this had happened. You know, what had caused the change in our hours. In our prior conversations when we converted they had stipulated that when we were converted to permanent part time that it would not affect our 40-hour week, and we would still be allowed to work. Q. Did she respond to this question of why? A. Well, she said she didn't know why. That there was nothing that she could really tell us because everything was still kind of up in the air with the DO and the region. (TR. 40-55). The other employee, Helen Colmenero testified that: A. She just said that there was going to be a change in our tour of duty and our hours. As I said before, instead of working 32 hours every fifth week we would be working 32 hours every week. I asked her if we had a choice and she said no. And I asked her why, and she said she had no answers. She didn't know why. And I asked her from where, you know, did it come from. And she didn't say; she couldn't give me any answers. She also said that if we wanted to change our hours from what we had to let her know by the end of the day if we were going to change them. But I told her that I'd probably keep what I had, and I would think about it and let her know by the end of the day if she wanted. Q. What options did you have as far as changing your hours was concerned? As far as scheduling your hours, what options were you offered? A. Well, we could change them as we wanted, or keep what we had. She wanted us to let her know so that she could see if it would conflict with anything, and she would approve it one way or the other. (TR. 54-55). Later in the day each CDS told Ms. Robinson the hours each wanted to work. 10. The cutback in hours, by 17 percent, worked a financial hardship on the CDSs. They not only received less money, they also lost annual and sick leave and suffered an increase in their health insurance premiums. Ms. Magdaleno worked the 32-hour schedule from May until she left the employment of Respondent, in December. Ms. Colmenero worked the 32-hour schedule from May 5 until April 1981, when she was given "the option to work 40 hours." (TR. 56). Discussion and Conclusions The General Counsel formulates several issues in this case. Factually and legally, each must be resolved in favor of Respondent. 1. The first issue raised is whether Respondent gave notice, and an opportunity to bargain, to the Union representative, Sandra Bailie, prior to implementation of a cutback in hours of bargaining unit employees. As found in finding 8, above, Respondent's Chief Operating Officer did give such notice and opportunity. In making this finding, I have considered the evidence of "habit" in giving notice, as urged by the General Counsel at pages 8-10 of the brief, and the fact that the notice here involved was not of the habitual sort given, namely, at formal meetings where minutes were kept, or by a written notice left in a sealed envelope on Ms. Bailie's desk. The notice given, was, however, appropriate to the unusual circumstances faced by the Respondent's Chief Operating Officer in the Fresno District. She was informed that the Fresno District had to cease conducting an illegal practice of allowing parttime employees to work full workweeks. Under these particular circumstances, it would have been unusual for her to have followed usual practices. It is more believable that her reaction to this upsetting news was to give immediate oral notice to the responsible Union official, Sandra Bailie, and to offer to hold a formal meeting to negotiate the impact and implementation of the change on the affected employees. 2. The next issue posed is whether, assuming arguendo that notice was given, the notice was adequate and sufficient in view of the short time span between giving the notice, around noon on Friday, May 2, and the implementing of the change, on Monday, May 5. The evidence which I have credited establishes that, before implementation, the proper Union representative, Ms. Bailie, discussed the matter with Ms. Bartsch, an appropriate official of Respondent; conveyed to Ms. Bartsch the opinion that nothing could be done about it; agreed that the affected employees should be notified right away; asked for no delay in implementation; and rejected the offer of a formal meeting. Under these circumstances, implementation on the workday following the notice did not render the notice inadequate or insufficient. Cases cited by the General Counsel are distinguishable, on their facts. /3/ Several involves situations where no notice was given to a Union representative, in the capacity of a Union representative, prior to implementation. These include United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Centre, Newark, Ohio, 4 FLRA No. 70 (1980); Internal Revenue Service, Washington, D.C., 4 FLRA No. 68 (1980); Department of Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No. 103 (1980); Department of Treasury, Internal Revenue Service, Austin Service Center, Austin, Texas, A/SLMR 1188, No. 1142 (1978); Internal Revenue Service and Brooklyn District Office, 2 FLRA 587, No. 76 (1980); Aircraft Fire and Rescue Division, Air Operations Department, Naval Air Station, Norfolk, Virginia, 3 FLRA No. 18 (1980). One cited case does hold that giving what was, in effect, only one day's notice prior to reassigning nine employees was not sufficient; but in that case the union had invoked the right to negotiate, upon receiving the notice, and had sought information from the activity in order to formulate proposals. See Bureau of Government Financial Operations, Headquarters, 3-CA-1807, OALJ-81-120 (June 12, 1981). The General Counsel argues that the Union here was presented with a fait accompli and, for this reason, no significance should be attached to the Union's failure to request bargaining and submit proposals, as these would have been futile acts. Cases cited do hold that unions need not perform futile acts; but the situations were quite different than the one here involved. In American Enterprises, Inc. and Sheet Metal Workers International Association, Local Union No. 60, AFL-CIO, 191 NLRB 866, No. 118 (1971) the National Labor Relations Board held that management violated its duty to bargain even though no request for bargaining was made by the Union, in a situation where antiunion activities were so pervasive that a bargaining request would have been a futile act. And in two other Board cases cited, the unions had requested bargaining at least once; the requests had been denied; and the Board ruled that repeated requests need not be made after a firm refusal. See Solon Manufacturing Company and United Paperworkers International Union, AFL-CIO, 222 NLRB 542, 543, fn. 4, No. 84 (1976); Williams Energy Company and Teamsters Local Union No. 104, An Affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 218 NLRB 1080, fn. 4, No. 165 (1975). Finally, in a decision under Executive Order 11491, which controlled labor relations in the Federal sector before passage of the Statute, it was held that a union need not request bargaining when it was led to believe that the change had already been implemented at the time notice was given to the union. See Army and Air Force Exchange, Hawaii Regional Exchange, 4 A/SLMR 791, No. 454 (1974), holding that a union should not be required to perform what "would be essentially a futile act." 4 A/SLMR at 798. Here, the General Counsel has not shown, by a preponderance of evidence, that it would have been "a futile act" for the Union to have requested bargaining and time to formulate proposals on the impact and implementation of the cutback in hours. Although Ms. Bartsch did indicate to Ms. Bailie that the order to cutback the hours of parttime employees did not give her "any leeway," and that it "appear(ed)" that the cutbacks would have to be effective on the next workday (TR. 78), the record shows that Ms. Bartsch also stated to the Assistant District Manager that: "if she (Ms. Bailie) has any objection to it we'll have a formal meeting." (TR. 76-77). And she did ask Ms. Bailie "if she had any objection, or wanted a formal meeting over this." (TR 77). From such evidence a conclusion cannot be drawn that an accommodation would not have been made to an objection and request for bargaining by the Union. It can be as readily concluded that the Union had no proposal to offer, other than immediate notification to affected employees-- which was agreed to by Respondent, and done. 3. The General Counsel next argues that each of the two meetings Cindy Robinson held with a bargaining-unit employee constituted a "formal discussion," within the meaning of Section 7114(a)(2)(A) of the Statute, and a violation of the Statute because each was held without notice to the Union and an opportunity for Union representation. Section 7114(a)(2)(A) of the Statute provides: (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment . . . . A number of decisions, in the Federal-sector, labor-relations field, have explored the perimeters of just what constitutes a "formal discussion." Most were decided under Executive Order 11491 which, in Section 10(e), similarly provided that a labor organization accorded exclusive-recognition rights: . . . shall be given the opportunity to be represented at formal discussions between management and employees or employee representatives concerning grievances, personnel policies and practices, or other matters affecting general working conditions of employees in the unit. Decisions under the Executive Order are given a special status, by Section 7135 of the Statute, which provides that: . . . decisions issued under Executive Order 11491 . . . shall remain in full force and effect . . . unless otherwise superceded by the Statute, regulations, or Authority decisions. A starting point for resolving this issue is that every discussion between agency management and employees does not call for union representation, under the law. See National Aeronautics and Space Administration, NASA, Lyndon B. Johnson Space Center, Houston, Texas, (hereinafter, "NASA") 5 A/SLMR 633 at 635, No. 457, FLRC No. 74A-95 (1975), holding that a meeting called to solicit employee opinions about an agency's EEO program was not such a discussion. This and other decisions declare, or suggest that affirmative answers to the following questions indicate that a "formal discussion" has taken place. (a) Was the meeting prearranged, with an agenda and written notice provided, rather than a spur-of-the-moment encounter. See Department of Health, Education and Welfare, Region IV, Atlanta, Georgia and Department of Health and Human Services, Region IV, Atlanta, Georgia (hereinafter referred to as "HHS, Atlanta"), 5 FLRA No. 58 (1981); Department of Defense, U.S. Navy, Norfolk Naval Shipyard (hereinafter, "Norfolk Naval Shipyard"), 6 FLRC 1104, 1108-1109, A/SLMR No. 908, FLRC No. 77A-141 (1978); and U.S. Environmental Protection Agency (hereinafter, "EPA"), Case No. 3-CA-1528, OALJ-81-119 (1981). (b) Did fairly high-level officials of management conduct the meeting. See Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air Force Base, Texas ("Laughlin"), 4 FLRA No. 65 (1980); Federal Aviation Administration, National Aviation Facilities, Experimental Center, Atlantic City, New Jersey ("FAA"), 4 A/SLMR 648 at 649, 660, 662, 667, No. 438 (1974); U.S. Department of the Army, Transportation Motor Pool, Ft. Wainwright, Alaska, ("Fort Wainwright"), 3 A/SLMR 291 at 297, No. 278 (1973); U.S. Army Headquarters, U.S. Army Training Center, Infantry, Fort Jackson Laundry Facility, Fort Jackson, South Carolina ("Ft. Jackson"), 3 A/SLMR 61 at 62, No. 242 (1973). (c) Was a record made of the meeting. See Norfolk Naval Shipyard, ibid; and Fort Jackson, ibid. (d) Was attendance of employees mandatory. See HHS, Atlanta, ibid. (e) Was the situs of the meeting in an official's office or away from the worksite of the employee. See Norfolk Naval Shipyard, 6 FLRC at 1108; and Fort Wainwright, 3 A/SLMR at 296. (f) Was it called to discuss a subject matter named in Sections 7114(a)(2)(A), or 10(e). See HHS, Atlanta, ibid; Norfolk Naval Shipyard, ibid; and Department of the Treasury, IRS, Chicago District ("IRS, Chicago"), 8 A/SLMR 1046, at 1047, No. 1120 (1978). (g) Was a subject matter named in the Sections 7114(a)(2)(A) or 10(e) actually discussed, even though the meeting was not called for that purpose; and did management raise the matter. See Norfolk Naval Shipyard, 6 FLRC at 1109; and IRS, Chicago, ibid. (h) Was management prepared to enter into a discussion, even though the employees remained silent and had no responses or questions. See IRS, Chicago, ibid; Department of Health, Education and Welfare, Region IX, San Francisco, California ("HEW, SF"), 8 A/SLMR 1273 at 1277, No. 1156 (1978); and Fort Wainwright, 3 A/SLMR at 297. (i) Was the meeting of sufficient duration to allow for a discussion. See Fort Wainwright, ibid. (j) Did the matter discussed "have ramifications for all unit employees," or was it "integrally related to the formal grievance process." Norfolk Naval Shipyard, 6 FLRC at 1109, fn. 6. See also Fort Wainwright, 3 A/SLMR at 300-301; Fort Jackson, ibid; FAA, 4 A/SLMR at 649; Department of the Treasury, U.S. Customs Service, Region VII, Los Angeles, California, 7 A/SLMR 956 at 960, No. 926 (1977); EPA, ibid; and Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, Case No. 8-CA-390, OALJ-81-059 (1981). (k) Were the discussions more than "mere 'counselling' sessions involving individual employees' conduct." Norfolk Naval Shipyard, ibid. See also Internal Revenue Service, Mid-Atlantic Service Center, 4 A/SLMR 520 at 524, No. 421 (1974); and Department of Defense, National Guard Bureau, Texas Air National Guard, 4 A/SLMR 33 at 34-35, No. 336 (1974). (l) Were the discussions more than "simply discussions between an employee and her supervisor in the course of day-to-day operations of the unit." Social Security Administration, Great Lakes Program Center, Chicago, Illinois, 7 A/SLMR 194, No. 804 (1977). See also Norfolk Naval Shipyard, ibid. (m) Were the meetings more than merely "information-gathering devices." nasa, ibid. (n) Was the meeting concerned with more than a mere announcement of a decision already made. See SSA, SF, ibid; and Department of Defense, National Guard Bureau ("NGB"), Case No. 6-CA-210, OALJ-81-121 (1981). (o) Was the meeting instigated by management, and not at the request of an employee or a union. See EPA, ibid. (p) Did management attempt to agree or bargain with the employees, or gather information regarding employee sentiments for the purpose of subsequently persuading the union to accept a position in bargaining negotiations. See NASA, ibid; Rocky Mountain Arsenal, Denver, Colorado, 7 A/SLMR 983, No. 933 (1977); and Laughlin, ibid. (q) Was there any "give-and-take," or debate between management and the employees in attendance. See Bureau of Field Operations, Social Security Administration, San Francisco, California, Case No. 9-CA-372, OALJ-81-145 (1981); NGB, ibid; EPA, ibid; and National Archives, Case No. 3-CA-993, OALJ-81-139 (1981). /4/ Application of the above criteria to the record made in this case results in a mix of signals. Some indicia of a "formal discussion" were present: attendance was mandatory; each meeting was held in the office of the highest-ranking officer of the branch office, the manager, although he did not attend; and the subject matter of each meeting, a cutback in hours, is a matter which Section 7114(a)(2)(A) covers. On the other hand, each of the two meetings amounted basically to a mere follow-through on the agreement reached between Respondent and the Union to notify the employees, at once, of the cutback in hours. The supervisor was totally uninformed as to the whys and wherefores of the decision, and could answer no questions on the matter. None of the usual trappings of a formal meeting were present-- no written notice, no preplanned agenda, no taking of minutes. The one question asked by the supervisor of the employees-- what schedule of hours each wanted to work-- was not shown to have any impact on the unit generally. And the supervisor did not seek any commitment as to schedules from the employees at the meeting itself. She made no attempt to bargain with them and, indeed, had no such authority. Weighing all of these factors, I cannot conclude that the General Counsel proved, by a preponderance of the evidence, that any "formal discussion" took place. See 5 C.F.R. 2423.18 for the quantum of proof required of the General Counsel. The cases cited by the General Counsel, at pages 18-20 of the brief, are instructive, but distinguishable, in that they involved indicia of a "formal meeting" not present here. In Department of Health, Education and Welfare, Region IV, Atlanta, Georgia, 5 FLRA No. 58 (1981) the orientation sessions at issue were regularly-scheduled ones, held on the third Wednesday of every month, with established agendas which included a question-and-answer period between agency personnelists, knowledgeable about the subject matter, and new employees. In Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74, No. 22 (1981), the meetings at issue were ones regularly scheduled at the beginning of each shift and designed to inform crane operators of important developments. See 6 FLRA at 85. (The focus of this decision was on whether the Union received adequate notice; and it is not clear on what basis the Authority found the meetings to be "formal discussions.") In United States Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, Case No. 7-CA-659, OALJ-81-111 (1981), the meeting was preplanned by a supervisor and a section chief; prior notice of it was given; it lasted for one hour; all unit employees were required to attend; and employees responded with ideas and suggestions. In U.S. Department of the Army, Transportation Motor Pool, Ft. Wainwright, Alaska, 3 A/SLMR 291, No. 278 (1973), the meeting was "a rather high-level" one, involving three tiers of supervisors; and "more than a mere announcement" of a change was made. 3 A/SLMR at 296-297. In U.S. Army Headquarters, U.S. Army Training Center, Fort Jackson Laundry Facility, Fort Jackson, South Carolina, 3 A/SLMR 61, No. 242 (1973), notes of the meeting were taken; and it was attended by not only the immediate supervisor of the employee who was the subject of the meeting, but also by three other management officials. In Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 6 FLRC 1104, No. 77A-141 (1978), the Federal Labor Relations Council reviewed a decision of the Assistant Secretary of Labor, under the Executive Order, and left undisturbed what it considered to be an "adequately supported factual determination," that a "formal discussion" took place where the head of the shop conducted the meeting pursuant to a formal instruction promulgated by the Commander of the Shipyard. See 6 FLRC at 1109 and 7 A/SLMR 829, 832, No. 908 (1977). /5/ In Internal Revenue Service, Atlanta District Office, Atlanta, Georgia, 8 A/SLMR 370, No. 1014 (1978), the meeting was one of a series conducted, periodically, at which notes were taken and reports submitted. The meeting touched on some 40 items, 3 of which involved matters named in Section 10(e) of the Order, and were the subject of "comments" and "conversation" by the participants at the meeting. See 8 A/SLMR at 376. A case not cited by the General Counsel, but one which I find to be of some relevance here, is Department of the Treasury, IRS, Chicago District, 8 A/SLMR 1045, No. 1120 (1978). /6/ It involved three meetings, two of which were held not to be "formal discussions." These two concerned wrongful disclosure of taxpayer records, were held "solely for instructional purposes," and "questions from the audience which arguably related to personnel policies and practices and matters affecting working conditions did not transform the meetings into formal discussions." 8 A/SLMR at 1047. It was noted, in this connection, that the agency did not raise the questions and did not bypass the union since the agency officers conducting the meetings "clearly indicated that (they) could not give any direct or conclusive response to the employees' questions." 8 A/SLMR at 1047. Here, too, the employees raised questions; but the agency officer conducting the meeting, Ms. Robinson, clearly indicated that she could not give any responses. 4. Finally, the General Counsel argues that the facts of record demonstrates that Cindy Robinson dealt directly with bargaining-unit employees, in derogation of the Union's status as exclusive representative. See GC Br 6, 22-23. Reliance is placed on two cases-- U.S. Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65 (1980) and Department of the Navy, Naval Air Station, Fallon, Nevada, A/SLMR No. 432, FLRC No. 74A-80, 3 FLRC 698 at 701 (1975). The criteria used for making by-pass determinations are stated in these decisions as follows, with Laughlin, decided under this Statute, adopting verbatim the criteria of Fallon, decided under Executive Order 11491, as amended: In determining whether a communication is violative of the Order, it must be judged independently and a determination made as to whether that communication constitutes, for example, an attempt by agency management to deal or negotiate directly with unit employees or to threaten or promise benefits to employees. In reaching this determination, both the content of the communication and the circumstances surrounding it must be considered. More specifically, all communications between agency management and unit employees over matters relating to the collective bargaining relationship are not violative. Rather communications which, for example, amount to an attempt to bypass the exclusive representative and bargain directly with employees, or which urge employees to put pressure on the representative to take a certain course of action, or which threaten or promise benefits to employees are violative of the Order. In Laughlin, no "formal discussion" or bypass situation was found when a bowling alley manager unilaterally notified bargaining-unit employees of a decision to close, for a few days, the snack bar where they worked, and asked them whether they wished to take annual leave or leave without pay for the duration of the closure. Found persuasive were several facts-- the manager was not a personnel officer, or one shown to have authority to establish personnel policies or practices; and no bargaining attempt was made. Also, no bypass was found to have occurred when the manager contacted the employees concerning other work for them, following a labor-management agreement that such relocation should be attempted. The Laughlin facts are markedly similar to those here involved. See findings 2, 8 and 9, supra. Cindy Robinson was not shown to have any authority to set personnel policies or practices or engage in collective bargaining on behalf of SSA, and was used simply as a conduit for relaying information from the District Office. She made no attempt to bargain with the employees at the meeting and, beyond announcing the mandatory change in hours to the employees and listening to their questions (to which she had no answers), she merely asked them to advise her, later in the day, of the schedule each wished to work. The District Office had limited the CDSs to two options only; and Ms. Robinson had no authority to vary them, and made no attempt to persuade or pressure the employees in exercising their option. In the Fallon case an unlawful bypass was found under facts quite different then the ones presented for decision here. In Fallon the activity posted a letter, written by the activity's commanding officer to the union's president, and in which aspersions were case on the conduct of the union president at a special meeting held to resolve a bargaining problem and an unfair labor practice charge. Two are other factually-distinguishable cases are cited by the General Counsel in which unlawful bypasses were found. One is Internal Revenue Service, Washington, D.C., 4 FLRA No. 68 (1980) in which employees were told at a regularly-scheduled group meeting that a new type of case review was to start immediately for revenue agents. The other case is Department of Health, Education and Welfare, Social Security Administration, BRSI, Northeastern Program Service Center, 1 FLRA 508, No. 59 (1979), where the activity, unilaterally, distributed a questionnaire to employees concerning an activity-wide "flexitime" approach to work days and soliciting their views regarding matters within the scope of the collective bargaining relationship. Judging this case "independently," as Laughlin requires, and following the criteria there established, I cannot find an unlawful bypass from the facts of record, for the reasons discussed above. 5. It is concluded that the General Counsel has failed to prove the allegations of the Complaint, and that dismissal of the Complaint should be ordered. In view of the above conclusions, it is unnecessary to resolve additional issues raised by the parties. Recommended Order It is ordered that the Complaint in Case No. 9-CA-578 be, and it hereby is, dismissed. ISABELLE R. CAPPELLO Administrative Law Judge Dated: November 30, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1A/ With respect to the relevance of who initiated a meeting in determining whether a formal discussion has occurred, see also Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 48 (1982). /1/ All dates referenced herein are in 1980, unless otherwise specified. /2/ The pertinent provisions of Section 7116 are: (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; (8) to otherwise fail or refuse to comply with any provision of this chapter. /3/ One case could not be found. It was named (Federal Railroad Administration), at page 11 of the brief with a citation indicated as being "supra." No other citation to this case could be found in the brief. /4/ But see also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, Case No. 9-CA-855, OALJ-81-174, which departs from the decisions cited in paragraph (q), supra. This decision involves a 10-minute meeting, called by a supervisor of a typing pool, attended by four clerk-typists, and held in the back of the office, where: the supervisor announced the elimination of the typing pool and the reassignment of the clerk-typists to individual claims authorizers, explained how the new operation would be structured, and distributed a memorandum setting forth the changes; and the employees merely listened. The point is made in the decision that "to conclude that the announcement in the instant case constitutes a 'discussion between' (the supervisor) and her employees constituted a strained interpretation of the Statute." See page 9 of the decision. Nevertheless, it was so concluded because of several holdings of the Assistant Secretary of Labor, under Executive Order 11491, and pursuant to Section 7135 of the Statute, which makes such holdings binding until superceded by the Statute, regulations or Authority decisions. In the Assistant Secretary cases cited, however, the meetings each involved several tiers of supervisors in attendance at the meeting; and the supervisors were knowledgeable and prepared to discuss the subject matter of the meetings, had the employees elected to ask any questions. See Fort Wainwright, 3 A/SLMR at 295, 297 and HEW, SF, 8 A/SLMR at 1276, 1277. /5/ The Council overturned the decision on the ground that the matter discussed, termination of the probationary employees called to the meeting because they were found sleeping on the job, did not concern "grievances, personnel policies and practices, or other matters affecting general working conditions of employees in the unit." 6 FLRC at 1111. The case was remanded to the Assistant Secretary, whose functions were subsequently transferred to the Authority under Section 304 of Reorganization Plan No. 2 of 1978. The Authority, based on the Council's holding and "rationale," dismissed the complaint. See 1 FLRA 240, No. 32 (1979). /6/ A petition to review this decision, as to an issue other than whether the meetings involved were "formal discussion(s)," was denied by the Authority. See 1 FLRA 137, No. 14.