20:0005(2)CA - DOL, Employment Standards Administration and AFGE Local 2513 -- 1985 FLRAdec CA
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The decision of the Authority follows:
20 FLRA No. 2 UNITED STATES DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2513, AFL-CIO Charging Party Case No. 2-CA-30604 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions, 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 entire record in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge found that the United States Department of Labor, Employment Standards Administration (the Respondent) conducted a formal discussion with certain of its employees on May 11, 1983, and that by failing to give American Federation of Government Employees, Local 2513, AFL-CIO (the Union) an opportunity to be represented, the Respondent failed to comply with section 7114(a)(2)(A) of the Statute /1/ thereby violating section 7116(a)(1), (5) and (8). /2/ Subsequent to the Judge's Decision herein, the Authority concluded that actual representation by an exclusive representative at a formal discussion is sufficient to demonstrate compliance with the requirement of section 7114(a)(2)(A) of the Statute that such an exclusive representative "be given an opportunity to be represented." /3/ The record shows, and it is not contested, that nine or ten Union officials and stewards were among the approximately 275 employees present at the meeting in question. Accordingly, as the record demonstrates that the Respondent complied with the requirements of section 7114(a)(2)(A), it did not violate section 7116(a)(1), (5) or (8) of the Statute as alleged, and the complaint shall be dismissed in its entirety. /4/ ORDER IT IS ORDERED that the complaint in Case No. 2-CA-30604 be, and it hereby is, dismissed. Issued, Washington, D.C., September 5, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-30604 Ronald Robbins, Esq. For the Respondent Jon Steen, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on October 31, 1983 by the Regional Director of the Federal Labor Relations Authority, New York, NY, a hearing was held before the undersigned on January 9, 1984 at New York, NY. This is a proceeding under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based on a first amended charge filed on October 12, 1983 by American Federation of Government Employees, Local 2513, AFL-CIO (herein called Local 2513, or the Union) against United States Department of Labor, Employment Standards Administration (herein called Respondent.) The Complaint alleged, in substance, that on or about May 11, 1983 Respondent held a meeting with Wage and Hour compliance specialists, who were unit employees, and discussed, inter alia, personnel policies and practices and other general conditions of employment. It was further alleged that such a meeting constituted a formal discussion within the meaning of Section 7114(a)(2)(A) of the Statute; that the Union was not afforded the opportunity to be present-- all in violation of Section 7116(a)(1), (5), and (8) of the Statute. Respondent's Amended Answer, filed on January 3, 1984, denied the aforesaid allegations of the Complaint, as well as the allegations that the Union is the constituent local of the National Council of Field Labor Locals of AFGE and acting as an agent on its behalf. It also denied the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. The Employment Standards Administration, as part of the Department of Labor, has various subdivisions, including the Office of Workmen's Compensation, the Wage and Hour Division, and a few smaller divisions. There are 10 regions of the Department of Labor. Region 2 comprises New York, New Jersey, Puerto Rico and the Virgin Islands. 2. At all times material herein the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (Council) has been recognized as the exclusive representative of all employees stationed throughout the nation in field duty stations of the Department of Labor with specified exclusions from said unit. 3. The Council includes 23 local unions, one of which is the Union herein-- Local 2513. Jesse Rios, president of the Council, testified that a charter was issued to it by the National AFGE; that the Council represents the latter for collective bargaining on behalf of all the local unions and the Department's employees. Further, Local 2513 is the primary representative of the Council for Region 2 of the Department, although another local union is the representative in Puerto Rico. Peter Richardson, president of Local 2513, testified that said local Union has represented all unit employees in Region 2 except for the Wage and Hour employees in Puerto Rico. His testimony reflects that Local 2513 has participated at formal discussions with management, meetings involving unit employees, and handled 100 grievances during the past year. Despite Respondent's denial, I find that at all times material herein, Local 2513, as alleged in the Complaint, was a constituent local of the Council; that said local was an agent acting on behalf of the Council in representing the unit employees of Region 2 of the Department. 4. Both the Department of Labor and the Council are parties to a collective bargaining agreement covering all employees in the nation in field duty stations of the Department. The agreement, which became effective on August 17, 1978, has been extended through August 16, 1984 in a written memorandum of understanding executed by the parties on July 27, 1982. 5. The aforesaid collective bargaining agreement provides in Article 1, Section 1(D) that the Council shall be given the opportunity to be present at formal discussions between Management and bargaining unit employees concerning grievance, personnel policies and practices, and other matters affecting general working conditions of bargaining unit employees. /5/ 6. During negotiations between the parties leading to the said collective bargaining agreement, and in October, 1982, the Union and management agreed as follows: that where a staff meeting would be held whereat the agency convened employees and restated policy, office practices, or working conditions, there would be no requirement or obligation on the part of management to notify the Union in advance of the meeting; that, under such circumstances, there would be no requirement that the Union have the opportunity to have a representative present at such meeting. /6/ 7. In late April, 1983 /7/ Union official Richardson wrote a letter to Doris Wooten, Respondent's Regional Administrator stating that he understood a meeting would be held on May 11 re items that would affect bargaining unit employees, and he requested that the Union be represented thereat. 8. By letter dated May 3 Wooten replied to Richardson and denied his request. She based this denial on the fact that the May 11 agenda would be limited to a discussion of the new Migrant Seasonal Worker's Protection Act (MSPA). Wooten explained that Associate Deputy Under Secretary Berrington would explain the background and legislative history of the Act, as well as clarify unanswered policy issues relating thereto. Accordingly, Wooten stated, it was not felt that formal union representation was appropriate. 9. The scheduled meeting, at which attendance was mandatory, was held on May 11 in a large auditorium at the Turf Inn, Albany, NY. It was attended by about 275 employees from the New York and Boston regions of the Wage and Hour Division. /8/ Included in the group were compliance specialists, supervisors and training instructors. Representatives of management included Craig Berrington, Associate Deputy Under Secretary of the ESA; Herbert Cohen, Deputy Administrator of the Wage and Hour Division, Washington, DC; Doris Wooten, Regional Administrator ESA, New York Region. Various other representatives from Washington, DC, as well as officials from the New York and Boston regional offices, also were present thereat. 10. After preliminary introduction by Doris Wooten at the May 11 meeting, Berrington addressed the group and explained the new farm labor law (MSPA) to the employees. Questions were asked in regard thereto and the management official answered such queries. About one hour was devoted to the explanation and discussion of the new statute. Thereafter a compliance officer asked Berrington whether the new law would affect the likelihood of Region 2 getting more GS-12 positions. Berrington stated that the GS-12's would be announced as previously; that management felt all jobs should be at a career level of GS-12 but classification standards made it difficult to do so. He further mentioned that the classification of GS-12 was being considered by OPM and the Department-- that it was being viewed carefully. In respect to particular personnel plans for GS-12's, Berrington stated that Cohen could better respond to that matter. 11. Upon addressing the employees, Cohen stated that a staffing plan to determine the number of GS-12's for each office or region was being considered and developed. /9/ It would be based on the percentage of compliance officers in all grades to those of GS-12 within each office or region. The ratios, he commented, had not been fixed, nor had it been determined whether it would be applied on a regional basis or area office by area office within a particular region. Questions had been asked by some employees concerning this because of the fear that if the ratio ceiling in each area office would be lowered, some GS-12's might have to transfer to another office or be downgraded. 12. After Cohen finished his discussion re the GS-12 situation, Berrington spoke again to the employees. Compliance specialist William Devins asked a question re accountability. The latter term refers to a type of quota system that each office must meet. Devins inquired as to why Washington raised quotas for a field office after the latter had sent in its program plans. Berrington answered that there was some "low balling" in the field-- people were not stating precisely how much work they could do since they didn't want to extend themselves. Therefore, according to Berrington, Washington jacked up the quotas. Devins said that the employees grumbling was not due to a refusal to work, but the problem arose because of the restricted performance standards which required the completion of cases in 45 days. One employee also mentioned that some offices were submitting statistics on performance standards which couldn't be met by the workers. Berrington replied that he was aware of a certain supervisor exaggerating statistics and that action would be taken against individuals if management found out about such conduct. He also stated that if an employee wanted a GS-12 classification, he could ask for a desk audit. However, Berrington said, an employee did so and the employee's level of work wasn't even GS-11 work. 13. In addition to remarks by Berrington and Cohen, several comments to the employees were made by Doris Wooten. She mentioned that she was in the process of negotiating with regional personnel offices re pending requests for GS-12's; that it was hoped an announcement as to those positions would be made within the coming week. Conclusions The ultimate question to be determined herein is whether the meeting between management and its employees on May 11, 1983, which was convened as a training session to discuss the Migrant Seasonal Worker's Protection Act, resulted in a formal discussion so as to require notification to the Union and an opportunity for it to be present thereat. Although conceding that the Union was not so notified, nor afforded an opportunity to appear as the bargaining representative in May 11, Respondent advances three contentions to justify its refusal to permit the Union to so attend. It maintains that (1) the meeting was not a formal discussion within Section 7114(a)(2)(A) of the Statute; (2) the Union clearly waived its bargaining right in this regard by virtue of negotiations (oral agreements) in 1982 between the parties, whereby it was agreed that a reiteration of policies and practices did not "trigger the prior notification requirements for formal discussions"; (3) in any event, the Union had actual notification of the meeting and nine or ten Union officials from the New York region were present at the meeting-- all of which constituted proper notification by the Respondent. The right of the bargaining agent to be represented at a formal discussion between management and its employees stems from Section 7114(2)(A) of the Statute. That provision recites as follows: (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 conditions of employment. . . . It must be established that any meetings called by management are, in essence, "formal discussions" in order to invoke the agency's obligation to afford the union an opportunity to be represented. Certain discussions have not been deemed to be "formal" in nature. Thus, information gathering sessions were not considered as falling with the proscriptive language of the foregoing statute. Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132(1982). See also Kaiserslautern American High School, Department of Defense Dependents Schools, Germany North Region, 9 FLRA No. 28(1982). Further, an impromptu meeting to discuss the concerns of two employees was held not to constitute a "formal discussion." Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA No. 9(1982). While the burden of establishing that a meeting was "formal" in nature rests upon the General Counsel, the Authority has set forth certain factors which, among other things, must be established to demonstrate that a formal discussion occurred. Thus, in Veterans Administration Medical and Regional Office Center, Cheyenne, Wyoming, 13 FLRA No. 70, where it was held that General Counsel did not meet its burden, the Authority concluded the facts did not reveal: (a) whether the individual who held the discussions /10/ was merely a first-level supervisor or was higher in the management hierachy; (b) how long the meeting lasted; (c) how the meeting was called; (d) whether a formal agenda was established for the meeting; (e) whether attendance was mandatory at the meeting. In contending that the meetings on May 11 was not a formal discussion, Respondent insists that the training course on the new farm bill was the sole purpose of the meeting; that it did not initiate any discussion re personnel matters or employment condition, but merely replied to questions in that regard; and that management's statements constituted a reiteration or restatement of existing agency policy. Although it is true that the meeting herein was called to discuss the MSPA, the record reflects that considerable discussion took place regarding other matters. Upon questions being propounded by employees re the status of GS-12 positions, and the entitlement thereto by Region 2 compliance officers, management launched a discussion concerning these grades. Thus, Cohen talked about the plan, which was being developed to staff GS-12's based on the percentage of compliance officers in all grades to those occupying GS-12 positions. Moreover, he indicated that it had not been determined whether the ratio would be applied on a regional basis, or area by area office within a region. Regional Administrator Doris Wooten mentioned, further, that she was in the process of negotiating with regional personnel officers as to pending requests for GS-12's; that an announcement re those would be forthcoming soon. Apart from these statements, Respondent's Associate Deputy Under Secretary, Craig Berrington, conversed with employees as to the quota system imposed upon employees, its adequacy, and the reasons why problems arose because of the employees' inability to meet performance standards. He suggested employees were "low-balling" it and not performing up to capabilities; suggested that employees, who did not obtain a GS-12, could seek a desk audit; and he mentioned that action would be taken against a supervisor who submitted statistical standards for performance which could not be met by the employees. Respondent argues that the statements made by management at the May 11 meeting constituted a reiteration of agency policy; that, as per agreement with the Union, any restatement of conditions would not be deemed a formal discussion. The contention that statements by Berrington, Cohen and Wooten were merely announcements of existing personnel practices is not persuasive. Development of staffing plans for GS-12's-- which had not been in operation theretofore-- is scarcely a repetition of management policy in this regard. Neither were the discussions re performance standards or the pending requests for GS-12 positions. While it is true that the employees initiated that conversations re these conditions of employment, in my opinion it was incumbent upon Respondent to refrain from discussing these conditions. Management could well have limited the meeting to the topic of the farm labor bill, and the proper course of action would have been to decline to consider the items then raised by employees. Record facts disclose that the factors which the Authority deemed essential, in assessing whether a formal discussion ensued, are apparent herein. Thus, attendance at the meeting was mandatory; those who presided for management were high level officials; the meeting was "formally" called by Respondent; and it lasted for some length of time. A discussion of conditions of employment, although interlaced with questions and answers, constitutes a formal discussion. The fact that management's original agenda did not call for such discussion does not, in my opinion, absolve Respondent from its obligation to afford the Union an opportunity to be present. Neither is Respondent excused in that regard because basic information was discussed. See Department of Health and Human Services, Region IV, Atlanta, Georgia, 5 FLRA No. 58(1982). Accordingly, I conclude, on the basis of the foregoing that the Respondent's meeting with employees on May 11 involved a formal discussion within the meaning of the Statute. In respect to the defense raised herein that, in any event, the Union's officers and stewards (who were employees) were present at the May 11 meeting and thus the Union received notification, the Authority has ruled otherwise. It was held in Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22, (1982), that the attendance at a meeting of employees, who happened to be union stewards, does not fulfill management's obligation to afford a union representative thereat. The Authority posited its holding on the reasoning that a union should have the opportunity to select representatives of its own choosing; that the Statute contemplates, therefore, prior notice to the bargaining representative. /11/ The undersigned therefore rejects the aforesaid defense raised by the agency herein. In sum, I conclude that Respondent did engage in a formal discussion on May 11, 1983 with its employees at the meeting convened on that date at the Turf Inn, Albany, NY; that the agency did not comply with the requirement under Section 7114(1)(2)(A) of the Statute to afford the Union an opportunity to be represented thereat as the bargaining agent or representative; and that its failure and refusal to do constituted a violation of Section 7116(a)(1), (5), and (8) of the Statute. Having concluded, as aforesaid, that Respondent violated Section 7116(a)(1), (5) and (8) of the Statute, I recommend the Authority issue the following: 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 United States Department of Labor, Employment Standards Administration, shall: 1. Cease and desist from: (a) Failing and refusing to provide the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, or its agent, American Federation of Government Employees, Local 2513, AFL-CIO, appropriate notice of, and an opportunity to be present at, formal discussions between representatives of the agency and its bargaining unit employees, or their representatives, concerning personnel policies, practices, or other general conditions of employment. (b) 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 actions in order to effectuate the policies of the Federal Service Labor-Management Relations Statute: (a) Provide the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, or its agent, American Federation of Government Employees, Local 2513, AFL-CIO, with appropriate prior notification of, and an opportunity to be present at, formal discussions between representatives of the agency and its bargaining unit employees, or their representatives, concerning personnel policies, practices or other general conditions of employment. (b) Post at its facilities in all the area offices of Region 2 (except Puerto Rico) 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 Associate Deputy Under Secretary of the Employment Standards Administration, and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken by the Associate Deputy Under Secretary to insure that said notices are not altered, defaced or covered by any other material. (c) Notify the Regional Director, Region II, 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. \ WILLIAM NAIMARK Administrative Law Judge Dated: June 26, 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 fail or refuse to provide the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, or its agent, American Federation of Government Employees, Local 2513, AFL-CIO, appropriate notice of, and an opportunity to be present at, formal discussions between representatives of the agency and its bargaining unit employees, or their representatives, concerning personnel policies, practices, or other general conditions of employment. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. WE WILL provide the National Council of Field Labor Locals, American Federation of Government Employees, or its agent, American Federation of Government Employees, Local 2513, AFL-CIO, with appropriate prior notification of, and an opportunity to be present at, formal discussions between representatives of the agency and its bargaining unit employees, or their representatives, concerning personnel policies, practices or other general conditions of employment. (Activity or Agency) 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 its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 24-102, New York, NY 10278 and whose telephone number is (212) 264-4834. --------------- FOOTNOTES$ --------------- /1/ 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(.) /2/ 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. /3/ Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA No. 122(1985). /4/ In so concluding, the Authority finds it unnecessary to pass upon whether the meeting was a "formal discussion" within the meaning of section 7114(a)(2)(A) of the Statute, or whether the Union contractually waived its right to representation in the circumstances of the case. /5/ Incorporated within the agreement is a memorandum of understanding (Appendix C-1) dated October 15, 1982 which provides, under paragraph IV thereof, procedures to be followed in providing notice to the Council of a formal discussion. /6/ This finding is based on the testimony of Council President Rios. While Respondent's witness, Robert Hastings, gave a somewhat different version of the agreement, both individuals attest to the understanding between the parties that a discussion at a meeting of any changed conditions would call for notifying the Union and allowing it to attend. /7/ Unless otherwise indicated, all dates hereinafter mentioned occur in 1983. /8/ The Agenda for the meeting was entitled "Joint Boston/New York Wage Hour Training Conference." MSPA Training session was scheduled for May 11. /9/ Prior to this May meeting no staffing plan was in use involving quotes by the Department for filling GS-12 positions. /10/ These involved "exit interviews" with a unit employee by a chief nurse. /11/ Cf. U.S. Air Force, Air Force Logistics Command vs. Federal Labor Relations Authority, 681 F.2d 466 (6th Circuit 1982), which involved a meeting called by management to discuss a change in an employment condition. A union steward, who was an employee, attended thereat and learned of the proposed change. Contrary to the Authority, the court held that since the union official knew about the proposal prior to its implementation, there was actual notification to the union thereof. Note is taken that the cited case did not concern a "formal discussion" issue, but merely notification prior to a change. Apart from the fact that the Authority has not reversed its ruling in Norfolk Naval Shipyard case, supra, I do not deem the Circuit Court's decision to be controlling in respect to the issue herein.