17:0385(62)CA - HHS, SSA and SSA Field Operations, New York Region and AFGE -- 1985 FLRAdec CA
[ v17 p385 ]
The decision of the Authority follows:
17 FLRA No. 62 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS, NEW YORK REGION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 2-CA-30220 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. Thereafter, the Charging Party filed exceptions to the Judge's decision. /1A/ 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, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. ORDER IT IS ORDERED that the complaint in Case No. 2-CA-30220 be, and it hereby is, dismissed. Issued, Washington, D.C., April 4, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No.: 2-CA-30220 -------------------- ALJ$ DECISION FOLLOWS -------------------- Daniel H. Green, Representative for Respondent Robert J. Fabii, Counsel for the General Counsel, Federal Labor Relations Authority Cecelia McCarthy, Representative for the Charging Party/Union Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp. V, 1981), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute", and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. On January 21, 1983, the Charging Party/Union filed a charge of an unfair labor practice against Respondent. The charge was amended on June 27, 1983. The General Counsel of the Federal Labor Relations Authority ("Authority") investigated and, on June 30, 1983, served the complaint initiating this proceeding. On July 19, 1983, an amended complaint was served. The complaint alleges that, on or about December 17, 1982, an agent of Respondent conducted a staff meeting with all part-time permanent employees to discuss general conditions of employment in the Baychester, Bronx, New York Branch Office, without affording the exclusive representative proper notice or the opportunity to be present in its institutional capacity, in violation of Section 7116(a)(1), (5) and (8) of the Statute. /1/ Respondent denies the charges. On August 17, 1983, a hearing was held in New York City. The parties appeared, adduced evidence, and examined witnesses. Briefing time was extended until October 28, without objection and upon a showing of good cause by Respondent. The General Counsel filed a brief on October 27. Respondent filed its brief on October 28. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, and the briefs, I make the following findings of fact and conclusions of law and recommend entry of the following order. Findings of Fact /2/ 1. It is admitted that, at all times material herein, the Charging Party has been and is a labor organization, within the meaning of the Statute, and that it has been and is now the certified exclusive representative of a consolidated unit of certain employees of Respondent, including all employees employed in the District and Branch Offices of the Social Security Administration ("SSA") in the States of New York and New Jersey, with certain exceptions not here relevant. 2. It is admitted that, at all times material herein, the National Council of SSA Field Operations Locals ("Council") has been delegated authority, by the Charging Party, to act as its representative for the purpose of collective bargaining on behalf of unit employees in SSA Field Operations, including SSA's Baychester, Bronx, New York Branch Office, and that Local 3369 has acted as the agent of the Council and been recognized by Respondent as such, at the Baychester Office. 3. It is admitted that, at all times material herein, SSA has been and is an agency within the meaning of the Statute, and that SSA Field Operations, New York Region has been and is a constituent entity within the Department of Health and Human Services ("DHHS"), SSA. 4. It is conceded that a meeting held on or about December 17, 1982, was a "formal discussion" within the meaning of 5 U.S.C. 7114(a)(2)(A). See TR 4. The parties agree that the sole issue is whether specific notice of the meeting, and an opportunity to attend it, was accorded the Union. See TR 5-7. 5. For about four years, Philip Kalmis has been the representative of Local 3369 at the Baychester Branch Office, where he has been employed as a claims representative for six years. The alternate representative is Robin Woodley. Ms. Woodley is a part-time permanent clerical who works for Mr. Kalmis, and whose desk is located beside his. As the representative for Local 3369, Mr. Kalmis is the person authorized to be given notice of formal meetings to be held with employees, and to discuss labor management relations on behalf of the employees and the Union. As the alternate representative, Ms. Woodley holds the same authority, in the absence of Mr. Kalmis. It is "assumed" that Ms. Woodley acts for Mr. Kalmis when he is "not at work, or not available," or is "(a)bsent from the room" (TR 83). 6. Golden Webb has been the branch manager of the Baychester Office since July 1980 and meets, on occasion, with Mr. Kalmis acting as the representative of Local 3369. 7. On December 13, 1982, /3/ Mr. Kalmis requested official time to meet with Mr. Webb to discuss some issues. Mr. Kalmis did so by presenting an official time form to his immediate supervisor, Daniel Heading, who approved it on December 13. See GC 2. The meeting was originally requested for December 14 or 15, and was later changed to Thursday, December 16. The December 16 Meeting 8a. From 4 to 5 p.m., on Thursday, December 16, Mr. Kalmis and Mr. Webb met and discussed the union's agenda items mentioned on the official time form. These items were: sanitized appraisals being broken into groups of Title 2 and Title 16 claims representatives; awards; union presence at employee orientation sessions; and a conversion chart for use in determining points for promotion. 8b. Mr. Webb had not presented any agenda items, in advance, for discussion at the December 16 meeting; but he did bring up one at the meeting based upon his receipt, at about 1 p.m. on that day, of a teletype from the New York Regional Office. The teletype called for an immediate freeze affecting part-time employees in the office, to be made effective on Monday, December 20. The teletype required Mr. Webb to disallow any work over established tours of duty and any increase in hours of duty. See GC 3. A copy of the teletype was placed in Mr. Kalmis's in-basket immediately upon receipt, but was not observed by Mr. Kalmis prior to the 4 p.m. meeting. 8c. Mr. Webb was positive that the teletype was the first item discussed "because of the importance of it and the effect it was going to have on the part-time permanent employees" (TR 98). Mr. Kalmis was uncertain as to the order of discussion. In view of the immediacy of the problem presented by the teletype, it is logical that it would be discussed first. Accordingly, I find that it was the first item discussed. 8d. The discussion of the teletype lasted for at least 20 to 25 minutes, during which time Mr. Kalmis expressed his concern about how the teletype would impact upon the employees. The testimony of Mr. Webb and Mr. Kalmis varied, in several respects, as to what transpired during this discussion. One variation is the subject of another unfair labor practice charge, and concerns what was said about future negotiations over the change represented by the teletype. As to the charge here at issue, Mr. Webb testified that he advised Mr. Kalmis that he would meet with the part-time permanent employees the next morning, Friday, December 17, to advise them of the freeze, and to solicit volunteers for changing hours in order for all office units to be covered by clerical help during office hours. (Most of the office clerical force was in a part-time permanent status and had originally been hired to work 32 hours a week, but had been allowed to work a full 40-hour week.) Mr. Webb testified that he advised Mr. Kalmis that he (Mr. Kalmis) had a right to be present at the meeting, and that Mr. Kalmis indicated that he would be present by nodding his head, in response. Mr. Webb gave his testimony in a careful, honest, and positive manner. 8e. Mr. Kalmis testified that Mr. Webb did not give him notice that there would be a meeting the next morning and that he learned about it only after it had occurred, from one of the clericals. While Mr. Kalmis appeared to be an honest witness, he also seemed to be an excitable and somewhat garrulous person who might have missed some points Mr. Webb was making at the December 16 meeting. After all, Mr. Kalmis had asked for the meeting in the first place, had a full agenda of items to discuss, and was probably distracted by the unexpected need to engage in a lengthy discussion about the part-time permanent employees. The fact that Mr. Webb observed Mr. Kalmis nodding his head, when told about the meeting which was to be held the next morning, may not have been acknowledgement of the notice at all. 8f. Mr. Kalmis admitted that Mr. Webb did give him prior notice of formal discussions, in "(m)ost situations" (TR 51). 8g. Based upon findings 8d, e and f, I find that Mr. Webb, at the December 16 meeting, did give Mr. Kalmis notice of the meeting to be held the next morning with the part-time permanent employees; /4/ but that Mr. Kalmis did not hear it. The December 17 Meeting 9a. On the morning of December 17, Mr. Webb notified five part-time permanent employees of a meeting to be held immediately. At 8:35 a.m. at the latest, Mr. Webb stopped by the desk of Ms. Woodley and told her that "we were having a meeting and her presence was wanted" (TR 125). Mr. Webb observed Mr. Kalmis sitting at his desk, at the time, and was of the opinion that Mr. Kalmis "noticed (him) when (he) walked by" (TR 126). /5/ Mr. Webb did not tell Ms. Woodley the purpose of the meeting. She attended it as a part-time permanent employee, and not in her capacity as the alternate union representative. She was the only one to volunteer to change her hours of work. 9b. The December 17 meeting began in the multi-purpose room no later than 8:45 a.m. and ended shortly after 9 a.m. /6/ It is customary for all staff meetings to begin at 8:30 a.m. and end by 9 a.m. when claimant interviewing begins. This half-hour period is the "reading period" for employees (TR 116). It is also customary for all staff meetings to be held in the multi-purpose room, which is located adjacent to the area where Mr. Kalmis works and a short distance from his desk. See R 1 and TR 119-129. 9c. Mr. Kalmis did not attend the "formal discussion" on December 17. Mr. Webb conceded that Mr. Kalmis usually attended formal discussions of which he had notice; but explained that Mr. Webb made his own decision to attend or not attend. See TR 135-138. The only instance given by Mr. Webb of nonattendance was when Mr. Kalmis attended the first meeting on appraisals, but chose not to attend subsequent meetings "on the same issue" (TR 138). Discussion and Conclusions The parties basically agree that the outcome of this case depends upon a credibility determination -- whether Respondent's agent gave the Union's agent prior notice of the formal discussion held on December 17. See, e.g., TR 6 and 60. This issue has been resolved in favor of Respondent. See finding 8g, supra. While Respondent's agent did not specifically notify the Union's agent of the place and time of the meeting, this was not fatal, on this record, which shows that it was the practice, in the Baychester Office, to hold staff meetings during the morning reading period, before claimant interviewing begins, and in the multi-purpose room. See finding 9b, supra. The meeting here at issue was held at the customary time in the customary place. The Union's agent, who has worked in the Baychester Office for six years, would know of this practice. In view of this conclusion, it is unnecessary to resolve other issues raised by the parties. Ultimate Findings and Recommended Order The General Counsel has not demonstrated, by a preponderance of the evidence, /7/ that the alleged violations of the Statute occurred. Accordingly, it is hereby ORDERED, that the complaint be, and it hereby is dismissed. ISABELLE R. CAPPELLO Administrative Law Judge Dated: November 8, 1983 Washington, DC --------------- FOOTNOTES$ --------------- /1A/ The Charging Party excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /1/ 5 U.S.C. 7116 provides, in pertinent part, that: (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; . . . or (8) to otherwise fail or refuse to comply with any provision of this chapter. One such provision is found at 5 U.S.C. 7114(a), which provides in pertinent part, that: (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. . . . /2/ The following abbreviations will be used. "GC" refers to exhibits of the General Counsel. "R" refers to the exhibits of Respondent. "Jt" refers to the joint exhibits of the parties. Multipage exhibits will be referenced by exhibit number, followed by page number. "GCBr" refers to the brief of the General Counsel. "RBr" refers to the brief of Respondent. "TR" refers to the transcript. /3/ All dates hereinafter mentioned are in 1982, unless otherwise specified. /4/ Both Mr. Webb and Mr. Kalmis made notes of the December 16 meeting. Those of Mr. Webb indicated that he gave such notice. Those of Mr. Kalmis mention no notice being given. Because of their self-serving nature, I have not relied on either set of notes in reaching this finding. /5/ Mr. Webb conceded that Mr. Kalmis did not acknowledge his presence in any way. Mr. Kalmis could not specifically recall seeing Mr. Webb, at this time, but did not deny that he may have. Mr. Kalmis explained that he sees Mr. Webb every morning, as they occupy a small office of which Mr. Webb is its manager. /6/ Mr. Webb so testified. Ms. Woodley testified only that the meeting was held in the morning of December 17. Mr. Kalmis testified that he thought the meeting was held at 10:30, but based his testimony on second-hand knowledge. I find that Mr. Webb was the more credible witness, on this point. /7/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7).