20:0148(16)CA - DOL, OSHA and Local 644, National Council of Field Labor Locals, AFGE -- 1985 FLRAdec CA
[ v20 p148 ]
The decision of the Authority follows:
20 FLRA No. 16 U.S. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION Respondent and LOCAL 644, NATIONAL COUNCIL OF FIELD LABOR LOCALS AFGE, AFL-CIO Charging Party Case No. 2-CA-30121 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 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 and recommendations, only to the extent consistent herewith. The complaint alleged that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute /1/ by conducting a formal discussion, within the meaning of section 7114(a)(2)(A) of the Statute, /2/ with bargaining unit employees without affording the exclusive bargaining representative an opportunity to be represented at the discussion. The record reflects that employees Francis X. Voycik and Louis S. Cvetnich were among those bargaining unit employees attending the November 16, 1982 meeting. Voycik was, at the time he attended the meeting, a steward for the Charging Party and Cvetnich was a vice-president. Moreover, it is unrefuted that Cvetnich was the alternate Union representative designated to receive notice regarding formal discussions, and that both Voycik and Cvetnich in fact participated in the discussion that occurred. In Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA No. 122(1985), issued subsequent to the Judge's Decision, 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." Relying on the rationale contained in Veterans Administration, the Authority concludes that the Charging Party was provided with an opportunity to be represented at the November 16, 1982 meeting on behalf of the exclusive representative, as evidenced by the attendance and participation of both a steward and a vice-president of the Charging Party. 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) and (8) of the Statute as alleged, and the complaint shall be dismissed in its entirety. /3/ ORDER IT IS ORDERED that the complaint in Case No. 2-CA-30121 be, and it hereby is, dismissed. Issued, Washington, D.C., September 11, 1985 (s) HENRY B. Frazier III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- LOWS ----- For the Respondent Richard Clougherty For the Charging Party Lee Mingledorff, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. Upon an unfair labor practice charge filed by Local 644, National Council of Field Labor Locals, AFGE, AFL-CIO against the U.S. Department of Labor, Occupational Safety and Health Administration (herein referred to as Respondent or OSHA), the General Counsel of the Authority, by the Regional Director for Region II, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by conducting a formal discussion with employees without affording the exclusive collection bargaining representative an opportunity to be represented at the discussion. A hearing on the Complaint was conducted in Pittsburgh, Pennsylvania at which all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for Respondent and the General Counsel and have been carefully considered. Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following findings of fact, conclusions of law and recommendations. At all times material herein the National Council of Field Labor Locals, AFGE, AFL-CIO (herein referred to as the Union) has been the exclusive representative of a nationwide unit of Respondent's employees including various employees located at Respondent's Pittsburgh, Pennsylvania OSHA Area Office. On November 12, 1982 employees were notified by memorandum that on November 16 a staff meeting for all employees of the Pittsburgh OSHA Area Office would be held. No notification of this meeting was given to the Union by Respondent since Respondent did not consider this meeting to be a formal discussion. Employees were informed that the subject of the meeting would be an October 1, 1982 document entitled "OSHA Objectives for 1983" (herein "Objectives 83"), issued by Thorne G. Auchter, Assistant Secretary of Labor for Occupational Safety and Health. Employees had previously been furnished this document and were instructed to bring it to the meeting. In "Objectives 83" Auchter summarized the status of OSHA's 1982 objectives and stated: "Of our 16 agency objectives last year, six were completed according to the criteria we had established. Substantial progress was made toward meeting the other objectives, and the appropriate portions of these other ten have been modified and refined for incorporation and continuance in the FY 83 objectives." "Objectives 83" continued: "I would now like to give you an overview of our new objectives for the upcoming fiscal year. You are being furnished with these objectives so that you can contribute to the overall progress we hope to make as an agency this year by directing your efforts in areas where they are most needed. "This year's FY 83 objectives are divided into six effectiveness areas. You will notice the increased emphasis in the areas of management, employer/employee assistance, state programs, and federal agencies. We must also continue ongoing efforts to improve our agency's efforts in the areas of compliance and standards." Auchter then went on to identify 14 agency objectives for 1983 which included "Improved Consultation" and "Expanded Employer/Employee Assistance." Improved consultation services were to be achieved through: "Development and implementation of a system of prioritizing requests for consultative services so that consultants are directed toward those establishments where their service will have maximum impact on OSHA's mission." "Identification of critical consultant competencies. "Development of agency guidance on what is expected of consultant's performance. "Development of a system to evaluate consultant's performance. "Evaluation of pilot program (inspection exemption)." Improved consultation services would be evidenced by: "Increased competency of consultants. "Increased demand for consultant services. "Evidence of hazards abated as a result of consultative visits." Expanded employer/employee assistance was to be achieved through: "Development of a public outreach program with emphasis on the new worker factor. "An expanded delivery system (T&E). "Improved consultation services. "Use of New Directions grants. "Development of an ability to act as a safety and health information resource center." Expanded assistance would be evidenced by: "More safety-health components in schools. "An increase in participation in voluntary protection programs. "Faster response to requests for safety and health information." Auchter's memorandum prescribed that " . . . all offices should develop action plans that direct employee performance toward the attainment of (the 14) objectives." The memorandum went on to state, inter alia: " . . . Although we must continue to enforce standards, we must also expand our role by activating other elements that are available in our program mix - elements such as training & education, consultation, and voluntary compliance programs. By expanding the approaches through which we offer assistance to employers and employees and encourage compliance of them, we can more successfully provide leadership and assistance for the improvement of workplace safety and health conditions . . . " Pursuant to Respondent's notice of November 12, Pittsburgh Area Office Director Stanley Elliott met with approximately 25 employees in the Pittsburgh Area Office library on November 16, 1982. /4/ A number of supervisors were also present. Elliott, who had notes or an outline in his hand, opened the meeting by having distributed to each employee a folder. The folder contained various statistical compilations which compared National, Regional, and Pittsburgh Area statistics for the prior two years and the particular individual employee's statistics on such matters as time spent inspecting, percent (of establishments?) not in compliance and the percent of inspections resulting in "meaningful compliance" in the areas of health, safety and construction. The statistics also showed, among other things, the individual employee's efforts regarding inspections, findings of compliance and incompliance, citations issued and the nature of the citations. After distributing the folder and congratulating the staff on their accomplishments, Elliott reviewed the overall statistics. /5/ Various questions were asked by employees regarding the meaning of the statistics and the significance of an individual being below the national average. Elliott responded that the office was "on target" and only minor adjustments would be needed during the next year. After some discussion on statistics took place, the goals set out in "Objectives 83" were also discussed. Elliott indicated that the Pittsburgh office had to be more productive than in the past in terms of providing services to the public. Elliott further explained that the direction at OSHA was changing from being primarily enforcement oriented to a more balanced approach by placing greater emphasis on employees playing a consultative role and upgrading programs to secure voluntary compliance. He indicated that there was some movement towards developing a resource center in the Area Office where the public could visit and employees would perform some sort of consultative service. Employees questioned whether they would be able to meet the goals set out in "Objectives 83." Although employees had always performed consultation to some degree, a number of employees expressed concern as to how the new ratio of time spent on office work and field work would affect their Performance Review Evaluation and current job descriptions. Elliott expressed the opinion that job descriptions should not be a hinderance and if the Performance Review Evaluation was an obstacle, it could be changed. In connection with their anticipated increased role as consultants and the time required to engage in such activity, employees also questioned whether they would have time to meet the requirements contained in their performance standards that investigations must be adequately documented as to legal sufficiency if a matter went to court. Elliott indicated that extensive documentation was not necessary in every case and both services could be delivered. A supervisor in the audience stated he would have a problem accepting a case which was not fully documented and Elliott questioned whether all cases needed to be reviewed by a supervisor. Elliott suggested that cases in which there was no contest need not meet the legal sufficiency test. If a matter was contested, the case could then be documented to meet the legal sufficiency requirement. Employees also expressed concern that an audit of their work at some subsequent time might adversely reflect upon their documentation but Elliott did not think this would be a problem. After about an hour of discussion, the employees were then given printed question sheets and divided into three teams. The questions were to be discussed for about one hour in the groups in order to obtain "inputs" from the field staff to better effectuate the program changes envisioned by "Objectives 83." The employees were to return and report to a plenary session thereafter. The questions presented were: "WITHOUT REDUCING OUR PRESENCE . . . AND . . . WITHOUT REDUCING OUR ENFORCEMENT PROGRAM . . . HOW CAN WE USE THE OTHER TOOLS AVAILABLE TO US TO IMPROVE SAFETY AND HEALTH IN WESTERN PENNSYLVANIA? "TOOLS - training & education consultation voluntary compliance "USING ALL OF THE ABOVE, HOW CAN WE ENCOURAGE ABATEMENT PRIOR TO CSHO's DEPARTURE?" When the employees reassembled in the library, team leaders reported on their group's findings. During this discussion employees voiced particular concern to Elliott that, in order to engage in the expanded consultative role that "Objectives 83" envisioned, they would need to be trained in this area. Elliott responded that OSHA training institutes could provide this training. The session concluded after approximately 45 minutes. Counsel for the General Counsel contends that the group meetings which occurred on November 16, 1982 constituted a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute and accordingly, Respondent's failure to notify the Union and afford it an opportunity to be represented at the discussion violated section 7116(a)(1), (5) and (8) of the Statute. Respondent denies that the November 16 staff meeting was a formal discussion within the meaning of the Statute. Rather, Respondent contends that the discussion which occurred during the November 16 meeting was "effectively" a reiteration of existing agency policy and, if the meeting was a formal discussion within the meaning of the Statute, the Union waived its right to be present at such meetings during prior negotiations with Respondent. I find and conclude that the November 16, 1982 staff meeting was a formal discussion within the meaning of the Statute. /6/ The subject matter of the discussion concerned performance statistics and employees' duties, clearly matters encompassing "general conditions of employment." Thus, the discussion involved greater productivity on the part of the staff during the coming year; a greater emphasis on consultation and obtaining voluntary compliance than in the past; the effect of such anticipated greater emphasis on performance requirements and evaluations; and what might constitute proper employee documentation of cases for legal sufficiency in these circumstances. Employee training to meet the demands of employees' changed role was also discussed, indeed at the specific suggestion of the employer when it distributed questions to employees, an objective of which was resolving how to improve safety and health in Western Pennsylvania. /7/ The formality of the discussion is established in that the meeting was (1) chaired by Respondent's Pittsburgh Area Office Director; (2) attended by other supervisory employees; (3) took place in the library, away from employees' work stations; (4) lasted a substantial part of an afternoon; (5) called by advance written notice; (6) governed by a specific agenda established by management; and (7) employees comments were solicited. Thus, the circumstances herein establish that the meeting constituted a formal discussion within the meaning of the Statute wherein Respondent was obligated, but did not, afford the Union an opportunity to be represented. U.S. Department of Housing and Urban Development, 15 FLRA No. 89(1984); Department of Health and Human Services, Social Security Administration, San Francisco Region, San Francisco, California, 14 FLRA No. 96(1984); Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA No. 78(1984); Internal Revenue Service (District, Region, National Office Unit), 11 FLRA No. 23(1983); Department of Health and Human Services, Social Security Administration, -bureau of Field Operations, San Francisco, California, 10 FLRA 115(1982); and see Department of Health, Education and Welfare, Region IV, Atlanta, Georgia and Department of Health and Human Services, Region IV, Atlanta, Georgia, 5 FLRA 458(1981). As stated above, Respondent contends that the meeting was essentially a reiteration of existing agency policy and the Union waived its right to be present at such meetings. To establish the waiver, counsel for Respondent elicited testimony from Robert Hastings, Director of the Office of Labor Relations, U.S. Department of Labor. Hastings testified that he was Respondent's chief negotiator during negotiations between management and the Union in 1978 and October 1982. The 1978 negotiations led to a master labor agreement and the 1982 negotiations culminated in the execution of a memorandum of understanding clarifying certain portions of the master agreement. Hastings testified that during those negotiations the parties orally agreed that to constitute a formal discussion under their contract, the discussion " . . . had to be something more than a mere reiteration of an existing personnel policy or practice and existing working conditions . . . " Hastings further explained that to be a formal discussion, the discussion had to be more than " . . . answering a question with regard to sick leave, for example . . . where it was a mere reiteration of an existing regulation, an existing policy, an existing working condition, or something that we had already negotiated in this contract." In an attempt to counter this testimony, Counsel for the General Counsel elicited the testing of Richard Clougherty, President of Local 644 and a Vice-President of the Council prior to 1981. Clougherty testified he was never advised of the existence of any such waiver even though he was a member of the Union's national negotiating team in 1978 and was kept advised of the 1978 and 1982 negotiations, proposals and arguments. However, Clougherty was not present at any of the 1978 or 1982 negotiation sessions. Based upon the record herein, noting particularly the only testimony elicited to challenge that of Hastings was that of Clougherty, who was not present at the negotiating sessions in 1978 or 1982, I conclude Respondent and the Union had an agreement as testified by Hastings. Nevertheless, I conclude the agreement, or "waiver", did not privilege Respondent to conduct the formal discussion found herein without giving proper notification to the Union. The "waiver" went to discussions which were a "mere reiteration" of existing working conditions. However, the meeting of November 16 went substantially beyond a mere reiteration of existing working conditions. Thus, a substantial portion of the meeting was devoted to the agency's goals and employees' responsibilities in achieving these goals during the coming year. Those goals, as set forth in "Objectives 83," indicate that a change was envisioned as to improving consultation services and expanding both the role of employees in effectuating OSHA programs as well as the approaches by which OSHA programs would reach the public. Thus, according to that document, various 1982 objectives were "modified and refined", "new" objectives were referred to, and "increased" emphasis in various areas of endeavor and "improved" effort (although ongoing) in other areas was highlighted. More specifically, the 1983 objectives called for "improved" consultation and "expanded" employer/employee assistance. The document set out action plans that directed employee performance toward attainment of these objectives through expanded approaches and expanded roles of employees. Elliott's comments and responses to questions during the meeting clearly convey that Pittsburgh Area Office was considering how to implement the goals set forth in "Objectives 83." Elliott explained that a more balanced approach to the work of OSHA regarding enforcement and consultation was the thrust of "Objectives 83" and, by the questions distributed to employees, wished to obtain staff views on how best to effectuate the goals of "Objectives 83." While no substantial additions or deletions in employees' job duties may have been directed by "Objectives 83" or the discussion on November 16, the document and the discussion clearly concerned a change in emphasis and how the change in emphasis would impact on employees' existing duties. As indicated above, such changes generated discussion concerning job descriptions, performance standards and training. In the circumstances herein, I find the primary subject of the November 16 meeting was not merely a reiteration of existing personnel policies, practices and working conditions. Rather, the discussion concerned significant changes in emphasis on agency objectives as set forth by Assistant Secretary Auchter for the coming year and how the Area Office would comply therewith. Accordingly, I conclude that the "waiver" claimed herein did not privilege Respondent from conducting the formal discussion of November 16, 1982 without affording the Union an opportunity to be represented at such discussion. In view of the entire foregoing I conclude that Respondent, by the conduct described herein, violated section 7116(a)(1), (5) and (8) of the Statute and 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 U.S. Department of Labor, Occupational Safety and Health Administration, shall: 1. Cease and desist from: (a) Failing or refusing to give the employees' exclusive representative, the National Council of Field Labor Locals, AFGE, AFL-CIO, the opportunity to be represented at formal discussions with bargaining unit employees at which personnel policies and practices or other general conditions of employment are discussed. (b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of 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 National Council of Field Labor Locals, AFGE, AFL-CIO, the opportunity to be represented at formal discussions with bargaining unit employees at which personnel policies and practices or other general conditions of employment are discussed. (b) Post at all facilities of the Pittsburgh Area Office of the U.S. Department of Labor, Occupational Safety and Health Administration, 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 Area Director or his designee 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. 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 Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, 26 Federal Plaza, Room 24-102, New York, NY 10278, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. (s) SALVATORE J. ARRIGO SALVATORE J. ARRIGO Administrative Law Judge Dated: August 15, 1984 Washington, DC 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 give the employees' exclusive representative, the National Council of Field Labor Locals, AFGE, AFL-CIO, the opportunity to be represented at formal discussions with bargaining unit employees at which personnel policies and practices or other general conditions of employment are discussed. WE WILL NOT in any like or related manner interfere with, restrain or coerce any employee in the exercise of any right under the Federal Service Labor-Management Relations Statute. WE WILL give the National Council of Field Labor Locals, AFGE, AFL-CIO, the opportunity to be represented at formal discussions with bargaining unit employees at which personnel policies and practices or other general conditions of employment are discussed. (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, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 24-102, New York, NY 10278, and whose telephone number is 212-264-4934. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1), (5) and (8) provides: Section 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: Section 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 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 Charging Party waived its right to representation in the circumstances of the case. /4/ Elliott testified that he called the meeting to congratulate employees on their past performance and to clarify and correct some misconceptions a few employees had regarding "Objectives 83." /5/ The following account, while generally a composite of the credited testimony of those who testified on the matter, is based primarily upon the testimony of employee William Draper. In addition to his demeanor as compared with other witnesses giving testimony at variance with that of Draper, I found Draper's testimony to be substantially corroborated by the general thrust of other witnesses' testimony and other evidence as well. /6/ Section 7114(a)(2)(A) of the Statute provides: "(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at - "(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment . . . " /7/ I do not find it particularly significant that the matters covering working conditions discussed at the meeting were raised by employee questions. Considering the avowed purpose of the meeting, it was reasonable to expect that questions and discussions concerning working conditions would occur. Cf. Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678(1981) at 686.