18:0249(33)CA - SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA



[ v18 p249 ]
18:0249(33)CA
The decision of the Authority follows:


 18 FLRA No. 33
 
 SOCIAL SECURITY ADMINISTRATION 
 BALTIMORE, MARYLAND 
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                            Case No. 9-CA-30281
 
                            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 General Counsel filed exceptions to the Judge's
 Decision.
 
    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 /1/ and recommended Order.
 
    The Judge concluded that the Respondent violated section 7116(a)(1)
 and (8) of the Statute by failing to provide the Union with prior notice
 and the opportunity to be represented at the meeting on February 25,
 1983, between District Manager Wells and Lingelbach.  In so concluding,
 the Judge found that the meeting was "formal" in nature, and that the
 subject matter of the meeting came within the meaning of section
 7114(a)(2)(A) of the Statute as required.  In a subsequently issued
 decision, Bureau of Government Financial Operations, Headquarters, 15
 FLRA No. 87 (1984), appeal docketed sub nom. National Treasury Employees
 Union v. FLRA, No. 84-1493 (D.C. Cir. Oct. 1, 1984), the Authority
 reiterated that in order for a union's right to be represented under
 section 7114(a)(2)(A) to attach, "all elements set forth in that section
 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." /2/
 
    In finding that the February 25 meeting was "formal" in nature, the
 Judge stated at page 5 of his Decision:
 
          The formality of this discussion is established by the fact
       that it was initiated by Wells, the district manager, was
       conducted away from Lingelbach's worksite in Wells' office behind
       closed doors, and Lingelbach's attendance was mandatory.  See,
       Department of Health and Human Services, Social Security
       Administration, Bureau of Field Operations, 10 FLRA No. 24, 10
       FLRA 115 (1982).
 
 The Authority noted in Defense Logistics Agency, Defense Depot Tracy,
 Tracy, California, 14 FLRA 475 (1984), that the factors set forth in the
 case relied upon by the Judge are not exhaustive and that the totality
 of facts and circumstances are used to determine the formality of a
 meeting.  In the instant case, the Authority concludes that, upon
 balance, the meeting was "formal" in nature, noting specifically that
 Wells was Lingelbach's fourth level supervisor and the manager for the
 entire district, that the meeting was held in Wells' office, and,
 notwithstanding the fact that the meeting was initiated by a phone call
 rather than a written notice and that Wells stated that he wanted to
 speak to Lingelbach as a "Dutch uncle," Lingelbach's attendance was
 required.  With regard to the final element, the Judge credited
 Lingelbach's testimony that Wells brought up and talked about the
 grievance which had been filed by Lingelbach.  The Judge specifically
 discredited Wells' denial that he brought up the subject.  The Authority
 concludes, in agreement with the Judge, that the meeting concerned a
 grievance and thus satisfied the fourth element.
 
    Accordingly, the Authority finds that the Respondent's failure to
 provide the Union with prior notice and the opportunity to be
 represented at a meeting which constituted a formal discussion of
 matters within the meaning of section 7114(a)(2)(A) of the Statute was
 violative of section 7116(a)(1) and (8) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Social Security Administration, Baltimore, Maryland, shall:
 
    1.  Cease and desist from:
 
    (a) Interfering with, or discouraging, by implied threats or other
 means, any employee from exercising the rights accorded by the Federal
 Service Labor-Management Relations Statute to file and process
 grievances under the negotiated grievance procedure freely and without
 fear of penalty or reprisal.
 
    (b) Failing to give the American Federation of Government Employees,
 AFL-CIO, appropriate notice of and the opportunity to be represented at
 formal discussions between employees in the bargaining unit and
 representatives of the Activity concerning grievances.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its 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 effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Give the American Federation of Government Employees, AFL-CIO,
 appropriate notice of and the opportunity to be represented at formal
 discussions between employees in the bargaining unit and representatives
 of the Activity concerning grievances.
 
    (b) Post at its facilities at Spokane, Washington, 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
 District Manager, or a designee, and shall be posted and maintained for
 60 consecutive days thereafter, in conspicuous places, including
 bulletin boards and all other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to insure that such
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Federal Labor Relations
 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 allegation that Respondent unlawfully
 discriminated against employee Frank Lingelbach for engaging in
 protected activity be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., May 24, 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 interfere with, or discourage, by implied threats or
 other means, any employee from exercising the rights accorded by the
 Federal Service Labor-Management Relations Statute to file and process
 grievances under the negotiated grievance procedure freely and without
 fear of penalty or reprisal.
 
    WE WILL NOT fail to give the American Federation of Government
 Employees, AFL-CIO, appropriate notice of and the opportunity to be
 represented at formal discussions between employees in the bargaining
 unit and representatives of the Activity concerning grievances.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL give the American Federation of Government Employees,
 AFL-CIO, appropriate notice of and the opportunity to be represented at
 formal discussions between employees in the bargaining unit and
 representatives of the Activity concerning grievances.
                                       (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 questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director of the Federal Labor Relations Authority, Region IX, whose
 address is:  530 Bush Street, Room 542, San Francisco, California 94108,
 and whose telephone number is:  (415) 556-8106.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Mr. Wilson Schuerholz
    Michael Walsh, Esquire
    For the Respondent
 
    Ms. Mary O'Malley
    For the Charging Party
 
    Josanna Berkow, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Nine, Federal Labor Relations Authority,
 San Francisco, California against the Social Security Administration,
 Baltimore, Maryland (Respondent), based on an amended charge filed by
 the American Federation of Government Employees, AFL-CIO (Charging Party
 or Union).  The complaint alleged, in substance, that Respondent
 violated sections 7116(a)(1), (2), (5), and (8) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute).
 
    The Complaint alleges that Respondent violated section 7116(a)(1) and
 (2) of the Statute when it discriminatorily issued a February 17, 1983
 Letter of Warning to unit employee Frank Lingelbach because he had filed
 a grievance under the negotiated procedure, or enlisted the assistance
 of the Union, activity protected by section 7102 of the Statute.  The
 Complaint further alleges that on February 25, 1983, Respondent, through
 its Spokane district manager Bruce Wells, held a formal meeting within
 the meaning of section 7114(a)(2)(A) with Lingelbach in violation of
 section 7116(a)(1), (5), and (8) of the Statute.  Finally, the
 Complaint, as amended at the hearing, alleges that Respondent committed
 two independent violations of section 7116(a)(1) of the Statute based on
 statements made by Wells to Lingelbach during the course of the February
 25th formal meeting.
 
    Respondent admits the jurisdictional allegations relating to the
 Respondent, Charging Party, and filing of the charges, but denies that
 it has violated the Statute.  Specifically, Respondent contends that the
 February 17, 1983 letter was issued because Lingelbach's performance was
 less than satisfactory concerning a specific case and that Union
 considerations played no part in its decision.  Respondent also contends
 that the February 25th meeting was merely a counseling session and that
 Wells did not make the statements alleged in the complaint.
 
    A hearing was held in Spokane, Washington.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record, /3/ including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusions of law, and
 recommendations.
 
                             Findings of Fact
 
    Frank Lingelbach has worked as a claims representative in
 Respondent's district office in Spokane, Washington since March of 1982.
  For five years prior to that time he held the same position in the
 Coeur d'Alene branch office, a satellite of the Spokane district.
 Lingelbach has worked for the agency in various positions for a total of
 eleven years and has always received fully satisfactory to excellent
 appraisals.  In 1980, Lingelbach received a cash award for exemplary
 work performance.  District manager Wells considered Lingelbach an
 excellent employee with supervisory potential.  Operations supervisor
 Premo and branch manager Aurora stated that Lingelbach exceeded the
 minimum requirements to an exceptional degree in his ability to deal
 with difficult claimants.  Claims representatives are evaluated, inter
 alia, on their ability to explain rights and alternatives to social
 security claimants.  Respondent's appraisal documents establish that
 claims representatives are favorably evaluated for their concern in
 protecting claimants' rights, looking out for claimants' interests, and
 for their sensitivity to claimants' needs.
 
    On January 26, 1983 Lingelbach filed a grievance under the negotiated
 grievance procedure with his then supervisor, Jerry Phinney, concerning
 his selection to the quality reviewer position in the Spokane district
 office.  He designated Donald Avery as his Union representative on the
 grievance form.  Phinney denied the grievance on January 28, 1983 with a
 written rationale.  The Union appealed the denial of Lingelbach's
 grievance in the first week of February, 1983.  The second step
 submission to Wells included a request for an audit of the reviewer
 position.  Prior to Lingelbach's grievance, no employee had ever
 questioned the grade of the reviewer position.  Wells opposed a position
 audit for this position.  Wells denied the grievance on February 22,
 1983.  No meeting was held at this level.  The grievance was then
 elevated to the third stage where it was for the most part denied.
 
    On or about February 7, 1983, District manager Wells received a
 telephone call from the office of Senator James A. McClure of Idaho
 requesting that Lingelbach attend a meeting in the Senator's office in
 Coeur d'Alene regarding an overpayment case of Herschel Shamblin.  Wells
 talked with Lingelbach who wanted to attend the meeting even if he had
 to take annual leave.  Wells also reviewed a working file pertaining to
 the case, discussed the case with other managers, and concluded that
 Lingelbach had displayed a lack of objectivity in dealing with the
 Shamblin case.  On February 17, 1983 Wells issued Lingelbach a letter of
 warning.  The letter forbade Lingelbach from having any further dealings
 with Shamblin and cautioned Lingelbach to represent the interests of the
 Social Security Administration in his dealings with the public.  The
 letter had nothing to do with Lingelbach's grievance or because he went
 to the Union for assistance.  /4/
 
    On February 23, 1983 Union representative Donald L. Avery wrote a
 letter to Wells requesting the removal of Lingelbach's letter of warning
 citing contractual provisions requiring progressive discipline.  Wells
 responded by memorandum dated February 25, 1983 in which he stated
 Lingelbach had been orally warned about his performance on the Shamblin
 case by the branch manager of Coeur d'Alene while he was working in that
 office.
 
    On February 25, 1983 Lingelbach wrote Wells requesting, inter alia, a
 signed statement from the Coeur d'Alene branch manager, the opportunity
 to review the Shamblin file, manual reference to job duties cited by
 Wells, and that certain material be added to his file.  /5/
 
    After receiving the letter, Wells called Lingelbach on the phone on
 the afternoon of February 25th and asked him to come into his office.
 Upon entering the office, Lingelbach asked if he needed his Union
 representative.  Wells said, "No.  Wells said he wanted to talk to
 Lingelbach completely off-the-record, like a Dutch uncle, to give him
 some friendly advice.  Wells asked Lingelbach about his career goals
 with the agency.  Lingelbach replied that he eventually wanted to go
 back to the central or regional office.  Wells stated that Lingelbach
 certainly had the ability and talent to advance, but was creating the
 image of being reluctant to accept direction and of questioning agency
 policy and procedure. Wells said that this was not conducive to
 progressing up the ladder.  Wells stated that he did not understand why
 Lingelbach had filed a grievance.  /6/ Lingelbach said he had filed the
 grievance because he had not received the answers he felt he needed
 concerning the reviewer position.  Wells said he would deny it if it
 ever came up, but Lingelbach was only hurting himself by filing a
 grievance.  Lingelbach replied that no matter what he felt about Wells'
 beliefs or attitudes about things, he was still going to do the best job
 of any claims representatives in the office.
 
               Discussion, Conclusions, and Recommendations
 
    A. Alleged Formal Discussion
 
    Section 7114(a)(2)(A) assures an exclusive representative the right
 to be represented at any formal discussion between one or more agency
 representatives and one or more unit employees concerning any grievance.
  Failure to provide prior notice and the opportunity to attend such
 grievance discussions constitutes an unfair labor practice in violation
 of section 7116(a)(1) and (8).  Office of Program Operations, Field
 Operations, Social Security Administration, San Francisco Region, 10
 FLRA No. 36, 10 FLRA 172 (1982).
 
    In the present case, the credible testimony establishes that Wells
 discussed Lingelbach's grievance with him on February 25, 1983.  The
 formality of this discussion is established by the fact that it was
 initiated by Wells, the district manager, was conducted away from
 Lingelbach's worksite in Wells' office behind closed doors, and
 Lingelbach's attendance was mandatory.  See, Department of Health and
 Human Services, Social Security Administration, Bureau of Field
 Operations, 10 FLRA No. 24, 10 FLRA 115 (1982).  Respondent's admitted
 failure to provide the Union with prior notice and the opportunity to be
 represented at this formal discussion violated section 7116(a)(1) and
 (8) of the Statute.  /7/
 
    B.  Alleged Threatening Statements
 
    It is well established that the filing and processing of grievances
 under collective bargaining agreements is protected activity within the
 meaning of section 7102 of the Statute and that management statements
 which tend to interfere with the exercise of such rights constitute
 unlawful interference in violation of section 7116(a)(1) of the Statute.
  Federal Election Commission, 6 FLRA No. 59, 6 FLRA 327 (1981);  U.S.
 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
 Chicago, Illinois, 3 FLRA No. 116, 3 FLRA 723 (1980).
 
    Wells' inquiry as to why Lingelbach had filed the grievance, and his
 subsequent implied statement that the grievance would only hurt
 Lingelbach's future career, would tend to chill Lingelbach in the
 exercise of his statutory right to process his grievance under the
 collective bargaining agreement.  Accordingly, Wells' statements to
 Lingelbach violated section 7116(a)(1) of the Statute, as alleged.  See,
 Veterans Administration Medical Center, Fayetteville, Arkansas, 5 FLRA
 No. 76, 5 FLRA 581 (1981);  Bureau of Alcohol, Tobacco and Firearms, 3
 FLRA 723, supra.
 
    C. Alleged Discrimination
 
    I have credited the evidence relating to Respondent's explanation for
 issuing the February 17, 1983 letter of warning to Lingelbach.
 Accordingly, a preponderance of the evidence fails to establish a
 violation of section 7116(a)(1) and (2) in this regard.
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Social Security Administration,
 Baltimore, Maryland shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, or discouraging, by implied threats or
       other means, any employee from exercising his rights accorded by
       the Statute to file and process grievances under the negotiated
       grievance procedure freely and without fear of penalty or
       reprisal.
 
          (b) Failing to give the American Federation of Government
       Employees, AFL-CIO, appropriate notice and the opportunity to be
       represented at formal discussions between employees in the
       bargaining unit and representatives of the Activity concerning
       grievances.
 
          (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 effectuate the
 purposes and policies of the Statute.
 
          (a) Give the American Federation of Government Employees,
       AFL-CIO, appropriate notice and the opportunity to be represented
       at formal discussions between employees in the bargaining unit and
       representatives of the Activity concerning grievances.
 
          (b) Post at its facilities at the Spokane, Washington 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 District Manager and shall be posted and maintained for 60
       consecutive days thereafter, in conspicuous places, including all
       bulletin boards and other places where notices to employees are
       customarily posted.  The District Manager shall take reasonable
       steps to insure that such notices are not altered, defaced, or
       covered by any other material.
 
          (c) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional
       Director, Region Nine, Federal Labor Relations Authority, San
       Francisco, California, 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 allegation that Respondent unlawfully
 discriminated against employee Frank Lingelbach for engaging in
 protected activity be, and it hereby is, DISMISSED.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  July 20, 1984
    Washington, DC
 
 
 
 
                                 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
 STATUTE We Hereby Notify Our Employees That:
 
    WE WILL NOT interfere with, or discourage, by implied threats or
 other means, any employee from exercising the rights accorded by the
 Statute to file and process grievances under the negotiated grievance
 procedure freely and without fear of penalty or reprisal.
 
    WE WILL NOT fail to give the American Federation of Government
 Employees, AFL-CIO, appropriate notice and the opportunity to be
 represented at formal discussions between employees in the bargaining
 unit and representatives of the Activity concerning grievances.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL give the American Federation of Government Employees,
 AFL-CIO, appropriate notice and the opportunity to be represented at
 formal discussions between employees in the bargaining unit and
 representatives of the Activity concerning grievances.
                                       (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 questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region Nine,
 whose address is:  530 Bush Street, Room 542, San Francisco, CA 84108,
 and whose telephone number is:  (415) 556-8105.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel excepts to the Judge's failure to find that
 the letter of warning constituted a violation of section 7116(a)(1) and
 (2) of the Statute.  The Authority is unconvinced by the General
 Counsel's arguments and adopts the Judge's conclusion.  The Authority
 also adopts the Judge's conclusion that Wells' statements to Lingelbach
 violated section 7116(a)(1) of the Statute.
 
 
    /2/ As there appears to be no dispute that the meeting was a
 discussion between a representative of the agency and a bargaining unit
 employee, the Authority concludes that elements 1 and 3 have been met.
 
 
    /3/ The General Counsel's unopposed motion to correct the transcript
 is granted;  the transcript is hereby corrected as set forth therein.
 
 
    /4/ A great deal of evidence was presented concerning whether
 Lingelbach's actio