17:0594(89)CA - HHS, SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA



[ v17 p594 ]
17:0594(89)CA
The decision of the Authority follows:


 17 FLRA No. 89
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION 
 BALTIMORE, MARYLAND 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                            Case No. 9-CA-855
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  The Judge further found that the Respondent had not
 engaged in certain other alleged unfair labor practices and recommended
 dismissal of the complaint with respect to them.  Thereafter, the
 Respondent and the General Counsel filed exceptions to the Judge's
 Decision, and the General Counsel filed an opposition to the
 Respondent's exceptions.
 
    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, except as modified
 herein.
 
    The Judge found that the Respondent violated section 7116(a)(1) and
 (5) of the Statute by implementing certain changes in the work
 assignments of unit employees before bargaining in good faith with the
 Charging Party (AFGE) concerning the impact and implementation of those
 changes had been completed.  Noting the absence of exceptions to this
 finding, the Authority agrees, for the reasons stated by the Judge.
 
    The record further shows that on January 30, 1981, one of the
 Respondent's supervisors, Dillon, held a meeting with four clerk-typists
 to announce the changes in work assignments, to distribute the
 Respondent's memorandum setting forth those changes and to instruct the
 employees how to proceed.  The Judge found that in addition to its
 refusal to bargain, the Respondent also violated section 7116(a)(1), (5)
 and (8) of the Statute, /1/ as the meeting was a "formal discussion"
 within the meaning of section 7114(a)(2)(A) of the Statute, and the
 Respondent had not afforded AFGE prior notice and an opportunity to
 attend the meeting.  /2/
 
    We disagree.  The Authority has recently held, in Bureau of
 Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984),
 that in order for the right of an exclusive representative to be
 represented at a formal discussion to attach, all elements set forth in
 section 7114(a)(2)(A) must be found to exist:  (1) a discussion;  (2)
 which is formal;  (3) between one or more representatives of the agency
 and one or more employees in the unit or their representatives;  (4)
 concerning any grievance or any personnel policy or practices or other
 general conditions of employment.  In the circumstances of this case,
 without passing on the other elements, the record does not establish
 that the meeting was formal in nature within the meaning of section
 7114(a)(2)(A) of the Statute.  Thus, the meeting in question was held at
 the employees' workplace, was spontaneously called, was conducted alone
 by a first-level supervisor, was only about ten minutes in duration, and
 had no formal agenda.  Accordingly, the Authority finds that as the
 General Counsel has failed to establish that the meeting in question was
 "formal" in nature within the meaning of the Statute, the Respondent
 cannot be found to have violated section 7114(a)(2)(A), and we shall
 dismiss the allegations of the complaint in this regard.  See Department
 of Health and Human Services, Social Security Administration, Bureau of
 Field Operations, San Francisco, California, 10 FLRA 115 (1982);
 Department of Health and Human Services, Social Security Administration,
 Bureau of Field Operations, San Francisco Region, 10 FLRA 120 (1982);
 Veterans Administration Medical Center, Bath, New York and Veterans
 Administration, Washington, D.C., 12 FLRA No. 107 (1983).  Further, the
 Authority specifically does not adopt the Judge's finding, at note 14 of
 his Decision, that the Respondent's actions in this matter constituted a
 clear bypass of the union in violation of section 7116(a)(5) of the
 Statute.  In our view, announcing the changes in the context of the
 meeting in question did not constitute an attempt to deal directly with
 unit employees concerning their conditions of employment or to undermine
 the status of the Union as the exclusive representative of the
 employees.  See Defense Logistics Agency, Defense Depot Tracy, Tracy,
 California, 14 FLRA No. 78 (1984).
 
    With regard to the further allegation that the Respondent violated
 section 7116(a)(1) of the Statute by virtue of certain statements to a
 union representative, the Judge found that on February 2, 1981,
 supervisor Dillon approached Chappell at her desk and asked to speak
 with her privately.  Instead, Chappell initiated a debate in the
 presence of other employees regarding her right as a union
 representative to have been informed of the meeting in question and to
 attend all meetings with employees, and Dillon responded by criticizing
 Chappell for not having waited until after the meeting to discuss the
 matter.  The Judge found, and the Authority agrees, that the remarks of
 Dillon under the circumstances cannot reasonably be construed as tending
 to have had a chilling effect on Chappell or the employees who were
 present, and we shall dismiss the allegations of the complaint in this
 regard.  /3/ See, e.g., Department of the Navy, Portsmouth Naval
 Shipyard, 7 FLRA 766, 778 (1982).
 
    As a remedy for the section 7116(a)(1) and (5) violation found above,
 the Judge recommended that the Authority order the Respondent to cease
 and desist from "implementing changes in the working conditions of
 employees" and to "rescind the changes in employees' work assignments
 implemented February 2, 1981." The Authority concludes that such a
 status quo ante remedy is not warranted in the circumstances of this
 case.  The record shows that the assignments were temporary in nature
 and had all been discontinued prior to the hearing in this case.  Thus,
 in these circumstances when a status quo ante remedy would be
 meaningless, /4/ the Authority concludes that a prospective bargaining
 order should fully remedy the refusal to bargain violation found herein.
 
                                   ORDER
 
    Pursuant to section 7118 of the Statute and section 2423.29 of the
 Authority's Rules and Regulations, the Authority hereby orders that the
 Department of Health and Human Services, Social Security Administration,
 Baltimore, Maryland shall:
 
    1.  Cease and desist from:
 
    (a) Implementing changes in the working conditions of its employees
 at its Field Support Unit Office without first affording the American
 Federation of Government Employees, AFL-CIO, the employees' exclusive
 bargaining representative, an opportunity to negotiate, upon request,
 with respect to the procedures which management will observe in
 implementing such changes and concerning appropriate arrangements for
 employees adversely affected thereby.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    (2) Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Post at its Field Support Unit Office, 620 Folsom Street, San
 Francisco, California, copies of the attached Notice on forms to be
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Assistant Regional Commissioner
 for Field Operations, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all places where notices to employees are customarily posted.
 Reasonable steps shall be taken to insure that said notices are not
 altered, defaced, or covered by any other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the remaining allegations of the complaint
 in Case No. 9-CA-855 be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., April 19, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT implement changes in the working conditions of our employees
 at the Field Support Unit Office without first affording the American
 Federation of Government Employees, AFL-CIO, the employees' exclusive
 bargaining representative, an opportunity to negotiate, upon request,
 with respect to the procedures which management will observe in
 implementing such changes and concerning appropriate arrangements for
 employees adversely affected thereby.  WE WILL NOT in any like or
 related manner interfere with, restrain, or coerce our employees in the
 exercise of their rights assured by the Statute.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region IX,
 Federal Labor Relations Authority, whose address is:  530 Bush Street,
 Suite 542, San Francisco, California, 94108, and whose telephone number
 is:  (415) 556-8105.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 9-CA-855
    Daniel H. Green
    For the Respondent
 
    Stephanie Arthur, Esq.
    For the General Counsel
 
    Vince Morgante
    For the Charging Party
 
    Before:  RANDOLPH D. MASON, Administrative Law Judge
 
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement Of The Case
 
    This case arises under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101, et seq., and was initiated by a complaint filed
 on April 6, 1981, by the Regional Director of the Federal Labor
 Relations Authority, Region IX, San Francisco, California, against the
 Department of Health and Human Services, Social Security Administration,
 Baltimore, Md., ("Respondent").
 
    The complaint alleges that respondent violated sections 7116(a)(5)
 and (1) of the Statute by unilaterally implementing certain changes in
 work assignments before bargaining was completed.  It also alleges a
 violation of Sec. 7116(a)(1), (5), and (8), arguing that these changes
 were announced during a "formal discussion" under Sec. 7114(a)(2)(A) and
 that the union was not afforded an opportunity to be present.  Finally,
 the complaint alleges that respondent violated Sec. 7116(a)(1) when a
 supervisor later "reprimanded" a union representative in front of other
 employees for having entered the above meeting.  Respondent denies all
 of the above allegations.
 
    A hearing was held in this matter at San Francisco, California,
 before the undersigned on June 16 and 17, 1981.  All parties were
 represented and afforded full opportunity to be heard, adduce relevant
 evidence, and examine and cross-examine witnesses.  The parties filed
 briefs which have been duly considered.  Based on the entire record
 herein, including my observation of the witnesses and their demeanor,
 the exhibits, stipulations, and other relevant evidence adduced at the
 hearing, I make the following findings of fact, conclusions of law, and
 recommended order:
 
                             Findings of Fact
 
    At all times material hereto, the American Federation of Government
 Employees, AFL-CIO ("union") was the exclusive representative of certain
 employees in Region IX, San Francisco, Bureau of District Office
 Operations, Social Security Administration, Department of Health and
 Human Services.  The alleged violations occurred at respondent's Field
 Support Unit.  The Refusal to Bargain
 
    During the period in question, Respondent's Field Support Unit
 processed SSI cases before and after they were heard by administrative
 law judges.  About 15 GS-10 claims authorizers reviewed these cases for
 payment purposes.  Other employees at the GS-5/6 level located folders
 prior to hearings.  The clerical and mailroom duties were performed by
 GS-3/4 clerk typists.
 
    On or about January 19, 1981, one clerk typist and one part-time
 "work study student" at the Field Support Unit resigned, leaving a
 shortage in the clerical typing pool.  On January 26, Isaac Williams,
 the respondent's manager, decided that since he could not rehire due to
 a hiring freeze, he should assign the mailroom clerk to the typing pool,
 and use the GS-10 claims authorizers to perform the mailroom duties.  He
 also decided to eliminate the clerical "pool" by assigning each of three
 clerk typists (including the one who had previously worked in the
 mailroom) to a separate group of five named claims authorizers.  /5/
 Previously, the clericals had handled any work given to the typing pool
 by any of the 15 authorizers.  On January 26, 1981, Williams sent his
 proposed changes to the union. The memorandum was entitled "Emergency
 Request for Consultation at Your Earliest Possible Convenience;
 Proposal for change-- effective date 02-06-81." (This was a
 typographical error;  the effective date should have read "February 2,
 1981.") After explaining the changes in the typing pool, the memorandum
 addressed the issue of mail preparation as follows:
 
          Claims examiners (authorizers) will be responsible for the
       preparation/distribution of the incoming/outgoing mail.  The
       responsibility will be rotated on a weekly basis and claims
       examiners will not be expected to take their "fair share" (i.e.
       regular daily case assignments) during their tour of duty in the
       mail room.
 
          Preparation of the mail will not include lifting of mail bags
       or transport of the mail outside the mail room . . . .
 
    The memorandum included a schedule in which each claims authorizer
 was assigned mailroom responsibilities for a specified one-week period.
 The first authorizer was assigned for the "week of Feb. 02." The last of
 the 15 authorizers was assigned the week of May 11;  thus the schedule
 covered a 15 week period.  Under this plan each authorizer would work in
 the mailroom for one week every 15 weeks.
 
    On January 29, 1981, at 2:00 p.m. Williams met with union
 representatives Gayla Chappell and Kathy Rothero to negotiate the
 proposed changes.  The union rejected the respondent's proposals and
 submitted a written list of seven counter-proposals.  Essentially, the
 union proposed to retain the status of the typing pool as it presently
 existed and to eliminate the shortage in the pool by borrowing a
 clerical employee who had been assigned to the folder location section.
 The latter function would be performed by a work-study student.  By
 eliminating the shortage in the typing pool in this manner, the mailroom
 function would continue to be performed by clerk-typist Joel Monkarsh,
 and the claims authorizers would not be required to work in the
 mailroom.  Williams rejected all of the above counter-proposals.  /6/
 
    During the course of the January 29 negotiating session the union
 emphasized that the assignment of mailroom duties to claims authorizers
 and the elimination of the typing pool would have serious adverse
 effects on the employees.  The union contended, inter alia, that the
 claims authorizers would be affected, in part, as follows:  (1) the
 proposal would impede their ability to perform their regular claims work
 and thus result in lower appraisals and performance audits;  (2) the
 performance of GS-3 mail duties could result in downgrading the GS-10
 claims authorizer position;  and (3) some of the authorizers were
 physically incapable (due to arthritis, etc.) of performing certain
 mailroom duties such as opening heavy mailbags, and others would find it
 difficult to stand and bend for several hours.  Williams, on the other
 hand, took the position that the employees would not be adversely
 affected.  With specific regard to the union's second point, he stated
 that he had spoken with the regional personnel department and had been
 told that his proposal would not cause a downgrading.  The union stated
 that it would be necessary to have the latter assurance in writing to
 protect the authorizers.  The union also stated that it would be
 necessary for the parties to devise methods to ensure that the
 performance audits and appraisals of authorizers took into consideration
 the fact that time had been spent away from their regular claims duties
 when they were in the mailroom.  They were convinced the delays during
 the mailroom duties would adversely affect their regular case work.
 None of the above matters were resolved during the meeting.
 
    The union also made it clear that if respondent insisted on making
 the authorizers perform mailroom duties, appropriate arrangements would
 have to be negotiated for employees who were physically incapable.
 Although there was some discussion about having two authorizers work in
 the mailroom at the same time, this question was not resolved.
 
    The union also argued that the clerk-typists would be adversely
 affected by eliminating the typing pool.  Under the pool concept, each
 typist had handled up to his or her capacity, whereas the new system
 might result in one or more typists accumulating a large backlog.
 Although no specific proposal was made at the time, the union indicated
 that a procedure would have to be worked out for the re-assignment of
 these backlogs.  Williams evaded this discussion by changing the
 subject.  When the union stated that such backlogs could have an adverse
 effect on appraisals and performance audits, Williams simply disagreed.
 
    After about 45 minutes of discussion, Williams indicated that the
 session was over. The union representatives told him that further
 negotiating would be necessary since many issues had not yet been
 resolved.
 
    Later that same day, Thursday, January 29, Williams told the
 supervisors for the authorizers and clerk-typists to inform the
 employees and implement the plan on Monday, February 2, 1981.
 
    Early the next morning, Friday, January 30, union representative
 Chappell told Williams that she wanted to continue the negotiations
 started on the previous day and she requested official time for that
 purpose.  Williams responded that the negotiations were over and that he
 was going to implement the changes.  /7/ Chappell protested that there
 were still a number of issues to discuss concerning both the substance
 and the impact of the proposals.  Thereafter Chappell immediately
 prepared a memorandum to Williams in which she requested further
 bargaining and stated that at the January 29 meeting she had initiated
 bargaining on the substantive issues as well as the impact and
 implementation of Williams' proposed changes.  She stated that she was
 available to meet with him that day as well as the following week.  /8/
 In accordance with customary procedure, she placed the memorandum in
 Williams' mailbox at about noon, but he did not notice it until he
 checked his mailbox later that afternoon when Chappell had already gone
 for the day.  On Monday, February 2, Williams implemented his proposed
 changes without further negotiation.  There was no pressing need to
 eliminate the typing pool and a brief delay in implementation of the
 remainder of his plan would not have been an undue burden on the office.
  After 15 weeks, the authorizers were no longer required to work in the
 mailroom.  The Alleged "Formal Discussion"
 
    On Friday, January 30, Marge Dillon, the supervisor for the
 clerk-typists, called a meeting of four clerk-typists to announce the
 changes made by Williams, to instruct them how to proceed, and to
 distribute a memorandum setting forth these changes.  /9/ Her comments
 included the elimination of the typing pool and assignment to individual
 claims authorizers.  The memorandum stated that the changes would be
 effective on Monday, February 2, 1981.  After announcing the above
 changes, Dillon gave one of the employees, Brenda Lowe, a special
 assignment which affected Lowe only.  /10/ The meeting lasted about ten
 minutes;  the employees did not ask any questions or make any comments.
 /11/
 
    The above meeting was held in the back of the office.  The union had
 not been invited to attend.  When union representative Chappell (a
 claims authorizer) saw that the above meeting was in progress, she
 "walked into the meeting to observe what was going on." Dillon asked
 what Chappell wanted.  Chappell stated:  "I have a right to be here as a
 union representative.  You can't hold meetings without the union
 present." Dillon explained that this was just a "training session"
 concerning the memorandum she had distributed to the clerical employees.
  She gave Chappell a copy of the memorandum and told her she could stay.
  Chappell then said:  "It appears from this that you're discussing
 changes that I have not reached agreement on with the manager." Dillon
 responded that Williams had told her to inform the employees of the
 changes.  At that point Chappell had to leave to answer a telephone
 call, and when she returned, the meeting was over.  The February 2
 Confrontation
 
    On February 2 Chappell was sitting at her desk when Dillon approached
 her and said she wanted to talk privately to Chappell outside the work
 area.  Chappell immediately became defensive because she assumed that
 she was going to be disciplined.  She asked what Dillon wanted to
 discuss.  Dillon stated that it concerned "your disrupting /12/ the
 meeting on Friday." Chappell said she couldn't discuss it that day
 because her union representative was on leave.  She added, in a loud
 voice however, that she had the right to attend all meetings with
 employees and that Dillon had committed an unfair labor practice by
 failing to invite the union to the meeting on January 30.  Dillon raised
 her voice in response to this accusation and said that the meeting had
 only been a training session and that Chappell had no right to be there.
  She also said that Chappell should have waited to talk to Dillon after
 the meeting, and if Chappell did not like it she could file an unfair
 labor practice charge.  Soon thereafter Chappell said she now wanted her
 union representative present during further discussion;  Dillon agreed
 and the meeting was terminated since the representative was not
 available.  Several employees were sitting nearby and heard the
 conversation.
 
                            Conclusions of Law
 
 The Refusal to Bargain
 
    The first issue for consideration is whether respondent refused to
 complete bargaining with respect to the impact and implementation of its
 decision to have claims authorizers work in the mailroom and to
 eliminate the typing pool and then unilaterally implemented this
 decision.  The General Counsel alleges that Williams, respondent's
 manager, violated Sec. 7116(a)(5) and (1) when he refused to bargain
 about these issues as required by sections 7106(b)(2) and (3) of the
 Statute.  Respondent takes the position that on January 29, 1981,
 Williams fully discussed all issues raised by the union and either
 reached an agreement or came to an impasse on all issues.  Thus
 respondent contends that Williams was fully justified when, on January
 30 he refused to engage in further bargaining with the union.
 
    The facts of record do not support respondent's position.  Although
 respondent did bargain about some issues raised by the union on January
 29, respondent terminated the negotiations after 45 minutes without
 discussing certain matters raised by the union.  At the conclusion of
 the meeting, the union reminded Williams that certain matters had been
 raised but not discussed, and that they would have to be negotiated at a
 later time.  For example, during the course of the meeting the union had
 made it clear that if Williams insisted on having claims authorizers
 perform mailroom duties, methods would have to be devised under which
 time spent away from regular duties would be taken into consideration in
 performance audits and appraisals.  Similar impact and implementation
 issues were raised with respect to the clerk-typists.
 
    On the morning of January 30, the union representative told Williams
 that she wanted to continue the negotiations started on the previous
 day.  Williams said that the negotiations had been completed and that he
 was going to implement his plan.  The union representative protested
 that there were still a number of issues to discuss concerning both the
 substance and the impact of the proposals.  Later that day she repeated
 her request in a memorandum to Williams.  Nevertheless, respondent
 implemented the plan on January 30 and February 2, 1981, without
 permitting further negotiations.
 
    Section 7103(a)(12) defines collective bargaining and requires that
 the parties meet at reasonable times and bargain in a good-faith effort
 to reach agreement with respect to conditions of employment.  Here
 management arbitrarily decided that 45 minutes of bargaining in one
 meeting on January 29 fulfilled respondent's obligation under the
 Statute.  When the union requested further bargaining the next day,
 respondent knew full well that the union had certain specific matters
 concerning appropriate arrangements for adversely affected employees and
 the manner of implementation of the changes about which it wanted to
 negotiate.  Respondent's refusal to negotiate at this point, and the
 subsequent unilateral implementation, clearly constituted a violation of
 section 7116(a)(5) and (1) of the Statute.  /13/ Formal Discussion
 
    The next issue for consideration is whether respondent violated
 section 7114(a)(2)(A) by failing to notify the union of its January 30
 meeting with the clerk-typists and afford the union an opportunity to
 attend.  That section 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 . . . .
 
    It is clear that the meeting in question was "formal" in nature and
 respondent does not seriously dispute this.  A more troublesome question
 is whether the meeting constituted a "discussion" in view of the fact
 that supervisor Dillon was the only person who spoke.  She merely
 announced the changes that were going to occur, i.e. the elimination of
 the typing pool and assignment to individual claims authorizers, and
 explained how the new operation would be structured.  The employees
 merely listened to the announcement and instructions.
 
    The Statute, as applied to the instant case, requires a "discussion
 between" the supervisor and one or more employees.  This phrase is
 commonly understood as a conversation in which two or more parties
 participate;  it does not appropriately describe an announcement to a
 group.  Furthermore, although the word "discussion" is sometimes used to
 describe the comments of an individual, it usually contemplates a debate
 or argument between two or more persons.  Webster's New World Dictionary
 (2nd Ed. 1970).  Thus to conclude that the announcement in the instant
 case constitutes a "discussion between" Dillon and her employees
 constitutes a strained interpretation of the Statute.  However, section
 10(e) of Executive Order 11491, the predecessor of section
 7114(a)(2)(A), also required the opportunity for representation at
 "formal discussions between management and employees," and the Assistant
 Secretary did not require the participation of the employees in the
 "discussion." U.S. Department of the Army, Transportation Motor Pool,
 Fort Wainwright, Alaska, 3 A/SLMR 290, A/SLMR No. 278 (1973) (employee
 refused to participate);  Department of Health, Education and Welfare,
 Region IX, San Francisco, California, 8 A/SLMR 1273, A/SLMR No. 1156
 (1978).  /14/ Nor did he require that such conversations constitute an
 attempt to bargain or negotiate with the employees for Sec. 10(e) to
 apply.  Rocky Mountain Arsenal, Denver, Colorado, 7 A/SLMR 982 (1977).
 Under Sec. 7135 of the Statute, I am constrained to follow the Assistant
 Secretary's view since "decisions issued under Executive Order 11491 . .
 . shall remain in full force and effect . . . unless superceded" by the
 Statute, regulations, or Authority decisions.  /15/ Thus, I must
 conclude that the January 30 meeting constituted a "formal discussion."
 /16/
 
    Respondent contends that the subject matter of the meeting did not
 concern a "general condition of employment." /17/ I disagree.  The
 elimination of the typing pool and the concomitant assignment of
 clerk-typists to individual claims authorizers affected the working
 conditions of these unit employees generally.  This change affected all
 clerk-typists and claims authorizers to whom the former were assigned;
 respondent's argument that the discussion only involved minor
 operational changes peculiar to a few individual employees finds no
 support in the record.
 
    Since respondent failed to give the union notice and an opportunity
 to attend the entire discussion as required by Sec. 7114(a)(2)(A), I
 conclude and hold that respondent violated Sec. 7116(a)(8), (5) /18/ and
 (1) of the Statute.  February 2 Confrontation
 
    The final issue for consideration is whether Dillon's remarks to
 union representative Chappell on February 2 tended to have a chilling
 effect on several unit employees in violation of Sec. 7116(a)(1).  That
 section prohibits an agency from interfering with, restraining, or
 coercing any employee in the exercise by the employee of his protected
 statutory rights.  Section 7102 gives each employee the right to form,
 join, or assist any labor organization.
 
    On January 30, although she had not been invited, Chappell entered a
 formal meeting being conducted by Dillon with employees.  Chappell
 brought the meeting to a halt by complaining that she had not been
 invited and that the failure to do so constituted an unfair labor
 practice.  Dillon gave Chappell a copy of the memorandum she had given
 the employees concerning the meeting and invited Chappell to stay.
 Chappell further complained that the meeting itself was improper since
 she had not finished bargaining on the changes that were being
 announced.  Dillon responded that she had been told by the manager to
 hold this meeting.
 
    The following Monday, February 2, Dillon approached Chappell at her
 desk and, since other employees were present, asked to speak to her
 privately.  Chappell insisted on knowing what Dillon wanted to discuss.
 Dillon said "it concerns your disrupting the meeting on Friday."
 Chappell then loudly contended that she had a right to attend all
 meetings with employees.  Dillon argued that this was merely a "training
 session" and that Chappell had no right to attend;  she further stated
 that Chappell should have waited to talk to her after the meeting and
 that if she disagreed she could file an unfair labor practice charge.
 
    Chappell's insubordinate actions at the January 30 meeting clearly
 constituted an improper means of asserting her statutory rights.
 Indeed, the union did have a right to be given an opportunity to attend
 under Sec. 7114(a)(2)(A), but the Statute does not give the union a
 license to cause disruption at such formal meetings with employees in a
 manner demeaning to a supervisor.  Thus it is not surprising that Dillon
 wanted to inform Chappell that she disapproved of the disruption.
 Dillon chose not to say anything disparaging at the January 30 meeting
 and, in fact, invited Chappell to stay.  On February 2 Dillon asked to
 speak privately with Chappell but the latter forced a public
 confrontation.  Chappell raised her voice and argued she had a right to
 attend such meetings and Dillon took an opposing point of view.  This
 was simply a legal argument which did not tend to have a chilling effect
 on Chappell or the employees who were listening.  Moreover, Dillon's
 disapproval of Chappell's "disrupting" the meeting, in the context of
 this conversation, did not tend to have a chilling effect.  The word
 "disrupt" was a mild choice of words to describe Chappell's behavior.
 Although that word tended to cast Chappell in a slightly negative light,
 in the same conversation Dillon showed respect for Chappell's statutory
 right to have her union representative present and urged her to follow
 the statutory unfair labor practice procedure.  Under all these
 circumstances, Dillon's remarks would not have tended to cause the
 employees to refrain from exercising their statutory rights.  Therefore
 I find no independent violation of Sec. 7116(a)(1).
 
    In view of the foregoing I recommend that the Authority adopt the
 following:
 
                                   ORDER
 
    Pursuant to 5 U.S.C. 7118(a)(7) and Sec. 2423.26 of the Final Rules
 and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby ORDERED
 that the Department of Health and Human Services, Social Security
 Administration, Baltimore, Maryland, shall:
 
    1.  Cease and desist from:
 
          (a) Implementing changes in the working conditions of employees
       at the Field Support Unit office prior to completing negotiations
       with the American Federation of Government Employees, the
       exclusive representative of employees at the Field Support Unit,
       concerning the impact and implementation of the change.
 
          (b) Holding or conducting formal discussions with bargaining
       unit employees concerning changes in general working conditions
       without first providing, by appropriate advance notice, the
       exclusive representative, American Federation of Government
       Employees, an opportunity to be represented at such formal
       discussions.
 
          (c) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to carry out the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute;
 
          (a) Rescind the changes in employees' work assignments
       implemented February 2, 1981, and restore the assignments in
       effect prior thereto.
 
          (b) Meet and negotiate, upon request, with the Union regarding
       the impact and implementation of the proposed changes in working
       conditions of employees at the Field Support Unit to the extent
       consonant with the Statute and regulations.
 
          (c) Post at the Field Support Unit Office, 620 Folsom Street,
       San Francisco, California, copies of the attached Notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by the Assistant
       Regional Commissioner for Field Operations, and shall be posted
       and maintained by him for 60 consecutive days thereafter in
       conspicuous places, including all bulletin boards and other places
       where notices to employees are customarily posted.  Said officer
       shall take reasonable steps to insure that such notices are not
       altered, defaced, or covered by any other material.
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region IX, Federal
       Labor Relations Authority, 530 Bush Street, Suite 542, San
       Francisco, California 94108, in writing, within 60 days from the
       date of this order as to what steps have been taken to comply
       herewith.
 
                                       RANDOLPH D. MASON
                                       Administrative Law Judge
 
 Dated:  September 28, 1981
         Washington, D.C.
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 We hereby notify our employees that:
 
 WE WILL NOT unilaterally implement changes in the working conditions of
 employees at the Field Support Unit, Social Security Administration,
 prior to completing our negotiations with American Federation of
 Government Employees, the exclusive representative of employees at the
 Field Support Unit, concerning the impact and implementation of the
 change.  WE WILL NOT conduct formal discussions with employees at the
 Field Support Unit concerning changes in their general working
 conditions without first providing the American Federation of Government
 Employees, the exclusive representative, notice and the opportunity to
 be represented at such formal discussions.  WE WILL NOT in any like or
 related manner interfere with, restrain, or coerce our employees in the
 exercise of rights assured by the Statute.  WE WILL rescind the changes
 in employees' working conditions implemented February 2, 1981, and
 restore assignments in effect prior thereto until we have negotiated to
 the extent consonant with law and regulations with the American
 Federation of Government Employees regarding the impact and
 implementation of said changes.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting and must not be altered,
 defaced or covered by any other material.  If employees have any
 question concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director,
 Region IX, the Federal Labor Relations Authority, whose address is:  530
 Bush Street, Suite 542, San Francisco, California, 94108, and whose
 telephone number is:  (415) 556-8105.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1), (5) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (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.
 
 
    /2/ Section 7114(a)(2)(A) provides:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (a)(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(.)
 
 
    /3/ In so finding, however, we find it unnecessary to pass upon, and
 do not adopt, the Judge's characterization of Chappell's actions at the
 January 30th meeting.
 
 
    /4/ In view of this conclusion, the Authority finds it unnecessary to
 apply an analysis of the factors enumerated in Federal Correctional
 Institution, 8 FLRA 604 (1982).
 
 
    /5/ He wanted to eliminate the pool because he felt one clerical was
 not doing his share of the workload.
 
 
    /6/ However, he did ultimately accept, in part, two other proposals
 made by the union concerning the manner in which the "fair share" of new
 cases are received, "queried," and distributed by the clericals to the
 claims authorizers.
 
 
    /7/ Williams told Chappell that he had heard there might be a
 question about whether the authorizers wanted to work in pairs in the
 mailroom, and that he was still willing to discuss that single issue if
 the union desired to do so.  He was willing to accommodate the
 employees, if possible, on this issue.
 
 
    /8/ At this point the union was still under the impression that
 Williams was not going to implement until Friday, February 6, due to the
 typographical error in Williams' January 26 memorandum.  I reject
 Williams' testimony that he told the union on January 29 and 30 that he
 was going to implement his plan "on February 2." Williams was also
 unaware of this error, and assumed the union knew he would implement his
 changes on Monday, February 2, 1981.
 
 
    /9/ The supervisor of the claims authorizers did not call a meeting
 and merely announced the changes in a memorandum.
 
 
    /10/ Lowe worked in a different section away from the other clericals
 and was now given the additional duty of answering the telephone at the
 front desk for two hours a day.
 
 
    /11/ Chappell testified that during her absence from the meeting Lowe
 had asked for more details about her special assignment;  however, she
 based her testimony on hearsay which she herself characterized as
 "pretty vague." I have relied upon the credible testimony of Marge
 Dillon that no questions were asked or comments made by employees.
 
 
    /12/ Chappell testified that Dillon used either the word "interrupt"
 (Tr. 47;  80) or "disrupt" (Tr. 81) whereas Dillon only recalled using
 the word "disrupt."
 
 
    /13/ Respondent could have negotiated on Friday, January 30 before
 the ultimate implementation on Monday, February 2;  moreover, if it
 became necessary, the effective date could have been postponed for a
 brief period without unduly interfering with the efficient operation of
 the respondent activity.
 
 
    /14/ I recognize that the subject matter of the discussion in the
 after case would not meet the statutory requirement of a "general
 condition of employment", Department of Defense, U.S. Navy, Norfolk
 Naval Shipyard, 1 FLRA 240 (1979), b