29:1205(89)CA - HHS, SSA and SSA Field Operations, Region II and AFGE Local 2369 -- 1987 FLRAdec CA
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The decision of the Authority follows:
29 FLRA No. 89 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS, REGION II Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 2369 Charging Party Case No. 2-CA-60016
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Administrative Law Judge's Decision. The Respondent filed an opposition to the exceptions. The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by failing to afford the Charging Party (the Union) an opportunity to be represented at a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. For the reasons which follow, we conclude that the meeting was not a formal discussion and that the Respondent did not violate the Statute.
On September 9, 1985, a new employee reported for duty at the Respondent's Camden, New Jersey District Office. Prior to reporting for duty at the Camden office, the employee completed 3 months of training at the Hackensack office, along with other employees who were going to be assigned to various district offices. During the training in Hackensack, the employees attended an orientation session at [PAGE] which matters such as hours of work, leave, holidays, insurance, and a variety of other benefits and personnel topics were discussed.
On reporting for duty in Camden, the employee was met by the Assistant District Manager. she was then taken to the desk of the "Operations supervisor," who was identified as the employee's supervisor. The supervisor and the employee met for about 20 minutes. During this time, the employee was given a copy of a document containing office rules and regulations. The supervisor and the employee discussed such matters as office hours, leave, office attire, security, housekeeping, smoking, paycheck distribution, and the time at which the employee would be taking lunch and breaks. Following the discussion at the supervisor's desk, the supervisor gave the employee a tour of the office and introduced her to the other employees. The Union was not given an opportunity to be represented at the September 9 meeting.
III. Administrative Law Judge's Decision
The Judge found that while the September 9 meeting between the employee and the Operations supervisor involved a discussion and concerned working conditions, the meeting was not "formal" and, therefore, it did not constitute a formal discussion under section 7114(a)(2)(A). The Judge therefore concluded that the Union was not entitled to be represented at the meeting and recommended dismissal of the complaint.
In finding that the meeting was not formal, the Judge noted that no other management official besides the Operations Supervisor was present, no advance notice was given to the employee of the meeting, no advance preparation was made for the meeting, no notes were taken during the meeting, and the document containing office rules and regulations given to the employee was customarily given to new employees. The Judge also noted that the questions asked by the employee were personal in nature and, for the most part, were applicable to the employee's individual concerns.
IV. Positions of the Parties
In its exceptions, the General Counsel contends that the Judge erred in failing to find that the September 9 meeting constituted a formal discussion at which the Union should have been given an opportunity to be represented. In support of its contention, the General Counsel argues that the Judge failed to consider Authority precedent regarding orientation [ v29 p2 ] sessions and failed to consider the unique characteristics of such sessions. More particularly, the General Counsel argues that like the situations in Department of Health and Human Services, Social Security Administration, 16 FLRA 232 (1984) and 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), the orientation session here was formal in nature. In support of its arguments, the General Counsel notes that (1) the meeting was initiated by the Assistant District Manager; (2) the employee's attendance was essentially mandatory; (3) no notice could be given to the employee since the meeting occurred on her first day of work at the Camden office; (4) while there was no specific agenda for the meeting, the discussion followed the document handed to the employee; (5) questions were asked and answered; (6) the meeting appeared to be part of an established routine for the first day of work for new employees; and (7) the meeting lasted for 20 minutes, an appreciable period of time.
In its opposition to the General Counsel's exceptions, the Respondent argues that the Judge considered Authority precedent since both parties had argued precedent in their briefs to the Judge. The Respondent further argues that the Judge correctly concluded, based on the facts presented, that the September 9 orientation session did not constitute a formal discussion.
V. Analysis and Conclusions
We consistently have held that in determining whether a union's right to representation attaches under section 7114(a)(2)(A), all the elements of that section must be present: (1) there must be a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or personnel policy or practices or other general condition of employment. See, for example, National Archives, 20 FLRA 129 (1985); Bureau of Field Operations, Social Security Administration, San Francisco, California, 20 FLRA 80 (1985); and Social Security Administration, Baltimore, Maryland, 18 FLRA 249 (1985). Additionally, in U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA No. 52 (1987), we stated that in applying that analytical framework, we will also be guided by the intent and purpose of section 7114(a)(2)(A)--to provide the union with an opportunity to safeguard [ v29 p3 ] its interests and the interests of bargaining unit employees--viewed in the context of the union's full range of responsibilities under the Statute.
The sole question presented here is whether the September 9 meeting was "formal." Based on an analysis of the facts presented, we agree with the Judge that the meeting was not a formal discussion within the meaning of section 7114(a)(2)(A). As noted by the Judge, the meeting was held between a new employee and her supervisor with no other management representatives in attendance. The meeting took place at the supervisor's desk, lasted about 20 minutes and was followed by a tour of the office and introductions to the other employees. There was no advance notice of the meeting, no notes were taken and no preparation was made for the meeting. Finally, the document given to the employee was customarily given to new employees.
In our view, the September 9 meeting here is unlike the situations presented in the two cases relied upon by the General Counsel. In Social Security Administration, the Authority adopted the Judge's finding that an orientation session with about six new employees was a formal discussion. In finding that the session satisfied the indicia of formality, the Judge noted that: (1) the orientation took place in a conference room; (2) it was conducted by a second-level supervisor with other management officials present; (3) it lasted 1-1/2 hours; (4) it was prearranged and not spontaneous; (5) attendance appeared to be mandatory; (6) attendance at the meeting was noted; (7) there was a definite plan of items to be discussed; and (8) the employees were given an orientation package that had been prepared in advance. In Department of Health and Human Services, Region IV, the sessions were held at a regularly scheduled time each month; generally included 15-18 employees; were conducted by the agency's personnel specialists; followed an established agenda and covered a wide range of personnel and employment matters.
Here, the meeting took place in connection with the employee's introduction to her supervisor. The supervisor testified that he was unaware that he would be meeting with the employee until she was escorted to his desk by the Assistant District Manager (Transcript at 51). Much of the discussion that followed pertained to personnel matters that were either discussed previously at the orientation session held at the Hackensack office or involved the employee's particular concerns. Thus, there were elements of spontaneity, one-on-one discussion, unstructured informality, [ v29 p4 ] and employee-initiated aspects of the meeting which were not present in the cases cited by the General Counsel.
We have recognized that not all discussions between representatives of agency management and unit employees are formal discussions within the meaning of section 7114(a) (2)(A). See, for example, Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 48 (1982). We do not view the type of exchange that occurred on September 9 as being a formal discussion. Rather, it was an informal meeting between a new employee and her supervisor. Accordingly, the Union was not entitled to be represented at the meeting and the Respondent's conduct did not violate the Statute, as alleged.
The complaint in this case is dismissed.
Issued, Washington, D.C., October 28, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p5 ]
DEPARTMENT OF HEALTH AND HUMAN. SERVICES, SOCIAL SECURITY ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS, REGION II Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2369 Charging Party Patricia A. Randle, Esq. For the Respondent Susan M. Roche, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge Case No.: 2-CA-60016
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on May 30, 1986, by the Regional Director for the Federal Labor Relations Authority, Region II, a hearing was held before the undersigned on September 9, 1986 at Philadelphia, Pennsylvania.
This case arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based on a charge filed by American Federation of Government Employees, AFL - CIO, Local 2369 (herein called the Union) against Department of Health and Human Services, Social Security Administration and Social [PAGE] Security Administration, Field Operations, Region II (herein collectively called Respondent).
The Complaint alleged, in substance, that on or about September 9, 1985, Respondent, by its agent, Operations Supervisor Gordon Swezey, held an orientation session with a unit employee and discussed personnel policies, practices and other conditions of employment. Further, that such session was a formal discussion which was held without affording the Union an opportunity to be represented as required under Section 7114(a)(2)(A) of the Statute - all in violation of Section 7116(a)(1) of the Statute.
Respondent's Answer, dated June 20, 1986, admits that Respondent held an orientation session with a new unit employee and discussed personnel policies, practices and other conditions of employment. It denied, however, that such session was a formal discussion within the meaning of Section 7114(a)(2)(A) of the Statute, as well as 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. At all times material herein the American Federation of Government Employees, AFL - CIO has been, and still is, the certified exclusive representative of a consolidated nation-wide unit of certain employees of Respondent, including all employees who are employed in the District and Branch Offices of the Social Security Administration in New York and New Jersey with specified exclusions.
2. At all times material herein, the American Federation of Government Employees, AFL - CIO has delegated to the National Council of Social Security Administration Field Operations Locals (Council) authority to act as its representative for the purpose of collective bargaining for Respondent's unit employees, including employees at the Camden, New Jersey District Office of Respondent, and this delegation has been recognized by Respondent. [ v29 p2 ]
3. At all times material herein, the American Federation of Government Employees, AFL - CIO, Local 2369 (the Union herein) has acted as agent for the Council for the purposes of collective bargaining for Respondent's employees at the Camden, New Jersey District Office, and the delegation has been recognized by Respondent.
4. In June, 1985 Nan McFall was hired by Respondent as a Claims Representative to be employed at the Camden, New Jersey District Office.
5. Prior to commencing employment at Camden, McFall reported to Hackensack, New Jersey where a training session was held for about 11 employees who would thereafter be assigned to various District Offices of Respondent. An orientation session was held for these employees which lasted about three months. Personnel policies, practices and general conditions of employment were discussed thereat. The subjects of discussion included such topics as hours of work, lateness policy, earning and using leave, salary, payroll deductions, paid holidays, employee benefits, counseling services, employee conduct, confidentiality, probationary period, audit and appraisal system, suggestions/awards, employee union, eating facilities, and transportation/parking facilities. (Respondent's Exhibit 1)
6. On September 9, 1985 McFall reported for duty at the Camden District Office. The Camden office is headed by Sol Steinberg who is the District Manager. Next in line thereat is Sid Bader, the Assistant Manager. A unit of 12 to 16 professional and clerical employees is supervised by Gordon Swezey, who is classified as "Operations Supervisor". 1 McFall was met at the office by Bader, who then accompanied her to Swezey's desk where she was introduced to the latter as her supervisor. The said unit employees and Swezey work in an "open office" set up. This supervisor has no separate office, and no partitions separate him from the supervised employees.
7. After McFall and Swezey were introduced, and while the former was seated at the supervisor's desk, Swezey went over the items contained in a document entitled "Statement [ v29 p3 ] of Office Rules and Regulations" (G.C. Exhibit No. 2). This is a six page document which sets forth various personnel policies, procedures, and conditions of employment. Although he did not read from the rules and regulations, Swezey went over and discussed various provisions thereof with McFall while she was seated at her supervisor's desk. A copy of the document, which Swezey testified he gave to each new employee, was given by him to McFall.
8. In explaining the employment conditions, Swezey talked about the office hours, use of time and lateness. He told McFall that if she anticipates being late a call should be made to her supervisor and advise him accordingly. Swezey assigned her a time for lunch as well as breaks. He explained how annual leave is accumulated, and McFall asked questions in this regard. She also asked if the telephone could be used to call outside since her son was ill, and Swezey told her it was alright if not done habitually. The supervisor mentioned that overtime was worked occasionally. He also stated that McFall was expected to dress like a professional, which meant no tight jeans or being underdressed. Swezey discussed smoking, the use of office phones, and housekeeping (maintaining desks neatly and properly arranged), security (to use elevators rather than stairways since there were no guards on hand), salary checks (if McFall is off for a week or on vacation, she could arrange to have them mailed to her home or pick them up when she returns to work). 2
9. No other persons were present during the discussion between McFall and Supervisor Swezey. Record facts show a dispute as to the length of the sessions since McFall testified it lasted between 20-30 minutes whereas Swezey stated it took about 10 minutes. Based on the amount of topics discussed, as well as the nature of the discussion, I find that the meeting lasted for approximately 20 minutes.
10. The meeting between McFall and Swezey was not pre-arranged, it was not called by the supervisor, nor was any notice given to the employee by the supervisor that they would meet to discuss the aforementioned items. No notification was given to the Union of the meeting. Other than the [ v29 p4 ] "Statement," there was no prepared agenda for the discussion. Swezey took no notes during the session.
11. After the discussion Swezey introduced McFall to her co-workers and walked her around the office. He pointed out some of the equipment, and thereafter showed her the desk which she would occupy. 3
The single issue for determination herein is whether the session or meeting between employee McFall and Supervisor Swezey on September 9, 1985 rose to the level of a "formal" discussion within the meaning of Section 7114(a)(2)(A) 4 of the Statute. An affirmative resolution in that regard would be violative of Section 7116(a)(1) and (8) of the Statute since the Union was not afforded an opportunity to be present thereat.
Numerous decisions have been rendered by the Authority wherein it was determined whether meetings or encounters between management and employees were, in fact, formal discussions. while some degree of inconsistency in making that determination has pervaded those decisions, certain guidelines have been established by the Authority. At the outset, the Authority has reiterated that in order for a [ v29 p5 ] union's right to attach, all elements set forth under 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 condition of employment. National Archives, 20 FLRA 129; General Services Administration, Region 8, Denver, Colorado, 19 FLRA 20.
While the Authority will examine the totality of the circumstances surrounding a meeting in order to determine if it was a formal discussion under the Statute, it has enumerated some of the factors to be considered in making that determination. These are as follows:
(1) whether any other management representatives attended the meeting;
(2) where the meeting took place (i.e., in the supervisor's office or elsewhere);
(3) how long the meeting lasted;
(4) how the meeting was called (i.e., with formal advance written notice or more spontaneously and informally);
(5) whether a formal agenda was established for the meeting;
(6) whether employee attendance was mandatory; or
(7) the manner in which the meeting was conducted (i.e., whether the employee's and comments were noted or transcribed).
See Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco Region, 10 FLRA 120, 10 FLRA 115 (2 cases).
Turning to the case at hand, it seems quite clear that Supervisor Swezey and employee McFall engaged in a discussion on September 9. Further, that the discussion was in respect to certain working conditions prevailing at the Camden District Office. Nevertheless, based on the various factors emphasized by the Authority in past decisions, coupled with the circumstances surrounding the meeting [ v29 p6 ] between these two individuals, I am persuaded that the discussion was not "formal" so as to require the presence of the union herein.
Record facts show that, as to the employee involved herein, the meeting with her on September 9 was held with her first-level supervisor. Although entitled "Operations Supervisor", Swezey was McFall's immediate supervisor. Moreover, no other management official was present during the discussion. The meeting with this one employee by Supervisor Swezey, upon her arrival at the Camden District, wherein he introduced her to the surroundings and explained the rules and working conditions, took on the character of an informal orientation session. It was held at Swezey's desk located near the new employee's seat assignment; no advance notice was given nor preparation made for the discussion; no notes were taken by either person during the discussion; and the supervisor customarily gave a copy of the same Office Rules and Regulations to each new employee.
Cases decided by the Authority in respect to the issue herein have stressed some of the factors which the undersigned has alluded to in concluding the meeting with Supervisor Swezey was not formal in nature. Thus, in General Services Administration, Region 8, Denver, Colorado, 19 FLRA 20, the Authority determined that a meeting between a first-level supervisor and two employees, with no other management representative present, was not a formal discussion. Although working conditions were discussed, there was no formal advance written notice, no notes were written or transcribed. See also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 17 FLRA 594 where the first-level supervisor met with four employees to discuss changes in working conditions. The Authority in the cited case concluded the discussion was not formal. It emphasized the fact that the supervisor was first-level. The meeting occurred at the employees' work place, was spontaneously called, lasted 10 minutes, and had no formal agenda. 5 [ v29 p7 ]
Based on the foregoing, I conclude that the introductory session and meeting between Supervisor Swezey and new employee McFall was casual in nature. While the written topics which the supervisor covered concerned working conditions, the meeting was designed to present the employee with the rules and regulations governing her employment. Questions asked of McFall, and responded to by Swezey, were personal and, for the most part, applicable to her individual concerns. The site and nature of the discussion, held under the circumstances and in the context as heretofore described, convinces me that it was not a formal one within the meaning of Section 7114(a)(2)(A) of the Statute. Accordingly, I conclude that Respondent has not violated Section 7116(a)(1) and (8) of the Statute. Thus, it is recommended that the Authority issue the following:
It is hereby ordered that the Complaint in Case No. 2-CA-60016 be, and the same hereby is, dismissed.
WILLIAM NAIMARK Administrative Law Judge Dated: April 27, 1987 Washington, D.C.
Footnote 1 Since the record reflects that Swezey is the immediate supervisor of McFall and the other unit employees, it appears that his supervision is first-level.
Footnote 2 While Swezey denies discussing all 15 items in the "Statement" (G.C. Exhibit 2), I find that, based on the record facts as credited, that the aforesaid subjects were covered by him.
Footnote 3 The meeting or discussion, which took place at Swezey's desk, was at a place about 13 to 14 feet from the desk to which McFall was later assigned by the supervisor.
Footnote 4 Section 7114(a)(2)(A) provides as follows: 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(.)
Footnote 5 Based on similar circumstances, the Authority reached the same conclusion in Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 16 FLRA 1049, and in Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Chicago, Illinois Region, 15 FLRA 25 (involving a discussion by an Operations Supervisor with six unit employees.