Department of Health, Education and Welfare, Region IV, Atlanta, Georgia and Department of Health and Human Services, Region IV, Atlanta, Georgia (Respondent) and National Treasury Employees Union (Labor Organization/Charging Party)
[ v05 p458 ]
05:0458(58)CA
The decision of the Authority follows:
5 FLRA No. 58
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, REGION IV, ATLANTA,
GEORGIA AND DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
REGION IV, ATLANTA, GEORGIA /1/
Respondent
AND
NATIONAL TREASURY EMPLOYEES
UNION
Labor Organization/Charging Party
CASE NO. 4-CA-249
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO REGIONAL DIRECTOR
SEYMOUR X. ALSHER'S ORDER TRANSFERRING CASE TO THE FEDERAL LABOR
RELATIONS AUTHORITY IN ACCORDANCE WITH SECTION 2429.1 OF THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (5 CFR 2429.1).
UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND
BRIEFS SUBMITTED BY THE RESPONDENT, GENERAL COUNSEL AND CHARGING PARTY,
THE AUTHORITY FINDS:
THE COMPLAINT HEREIN ALLEGES THAT RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135) WHEN, BEGINNING ON OR ABOUT
SEPTEMBER 26, 1979, IT REFUSED TO GIVE THE NATIONAL TREASURY EMPLOYEES
UNION (THE UNION) THE OPPORTUNITY TO BE REPRESENTED AT A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE.
THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
ON NOVEMBER 30, 1978, THE UNION WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE FOR A UNIT CONSISTING OF CERTAIN EMPLOYEES OF THE
REGIONAL OFFICE OF DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION
IV, ATLANTA, GEORGIA. FROM MAY 1979 THROUGH NOVEMBER 1979, THE
RESPONDENT AND THE UNION WERE ENGAGED IN CONTRACT NEGOTIATIONS. ONE
ISSUE WHICH AROSE WAS WHETHER ORIENTATION SESSIONS CONDUCTED FOR NEW
EMPLOYEES WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
7114(A)(2)(A) OF THE STATUTE. /2/ THE PARTIES REACHED NO AGREEMENT ON
THE MATTER WITHIN THE CONTEXT OF CONTRACT NEGOTIATIONS.
BY LETTER DATED SEPTEMBER 14, 1979, THE UNION REQUESTED THAT IT BE
GIVEN THE OPPORTUNITY TO BE REPRESENTED AT ORIENTATION SESSIONS PURSUANT
TO SECTION 7114(A)(2)(A) OF THE STATUTE. THE RESPONDENT DENIED THE
REQUEST BY LETTER DATED SEPTEMBER 25, 1979. THE REQUEST WAS RENEWED BY
THE UNION'S CHAPTER PRESIDENT ON SEPTEMBER 26, 1979. ALSO ON SEPTEMBER
26, 1979, AN ORIENTATION SESSION WAS CONDUCTED.
THE STIPULATION AND SUPPORTING EXHIBITS REVEAL THAT THE ORIENTATION
SESSIONS ARE CONDUCTED ON THE THIRD WEDNESDAY OF EVERY MONTH.
ATTENDANCE NORMALLY AVERAGES FROM 15 TO 18 EMPLOYEES. THOSE REQUIRED TO
ATTEND ARE NEW EMPLOYEES AND INCLUDE EMPLOYEES IN THE UNION'S BARGAINING
UNIT, EMPLOYEES IN OTHER BARGAINING UNITS REPRESENTED BY UNIONS OTHER
THAN THE CHARGING PARTY AS WELL AS UNREPRESENTED EMPLOYEES. THE
ORIENTATION SESSIONS, IN QUESTION, ARE CONDUCTED BY PERSONNELISTS FROM
THE RESPONDENT'S REGIONAL PERSONNEL OFFICE. THE FORMAT OF THE SESSIONS
CONSISTS OF DISTRIBUTION OF AN ORIENTATION PACKET AND DISCUSSION,
INCLUDING QUESTIONS AND ANSWERS, BETWEEN THE PERSONNELISTS AND EMPLOYEE
ATTENDING THE SESSION CONCERNING THE SUBJECTS COVERED BY THE MATERIALS
IN THE PACKET AS WELL AS THOSE SET FORTH IN AN ESTABLISHED AGENDA. THE
RECORD REVEALS THAT THE PACKET COVERS A RANGE OF MATERIAL INCLUDING
BASIC INFORMATION ON FEDERAL EMPLOYMENT AND THE AGENCY AS WELL AS
VARIOUS AREAS INVOLVING PERSONNEL POLICIES, PROGRAMS AND GENERAL
CONDITIONS OF EMPLOYMENT, SUCH AS ALCOHOLISM AND DRUG ABUSE, EQUAL
EMPLOYMENT OPPORTUNITY, AND STANDARDS OF CONDUCT. THE AGENDA COVERS A
SIMILAR RANGE OF SUBJECTS, SUCH AS TRAINING AND CAREER DEVELOPMENT,
LABOR RELATIONS, AND CONDUCT AND DISCIPLINE.
THE GENERAL COUNSEL AND THE CHARGING PARTY CONTEND THAT THE
ORIENTATION SESSION IS A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION
7114(A)(2)(A) OF THE STATUTE AND THAT THE UNION IS ENTITLED TO BE
REPRESENTED THEREAT.
THE RESPONDENT ARGUES THAT BECAUSE THE ORIENTATION SESSIONS ARE NOT
LIMITED TO EMPLOYEES OF ONE PARTICULAR BARGAINING UNIT BUT ARE CONDUCTED
BY ITS REGIONAL PERSONNEL OFFICE FOR ALL THE EMPLOYEES IT SERVICES,
SECTION 7114(A)(2)(A) DOES NOT APPLY. MOREOVER, THE RESPONDENT ARGUES
THAT THE ORIENTATION SESSIONS ARE ANALOGOUS TO A VISIT BY AN EMPLOYEE TO
THE PERSONNEL OFFICE IN THAT THEY ARE CONDUCTED BY INDIVIDUALS WHO ARE
CLEARLY IDENTIFIED AS REPRESENTATIVES OF THE REGIONAL PERSONNEL OFFICE
AND THAT ONLY BASIC INFORMATION CONCERNING EMPLOYMENT IS DISSEMINATED.
IN THE CIRCUMSTANCES OF THIS CASE INCLUDING THE REQUIRED MANDATORY
ATTENDANCE OF NEW EMPLOYEES AT THE ORIENTATION SESSIONS IN QUESTION, THE
SUBJECT MATTER DISCUSSED AND THE ESTABLISHED AGENDA FOR SUCH
DISCUSSIONS, THE AUTHORITY FINDS SUCH MEETINGS TO BE FORMAL DISCUSSIONS,
WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE. THE
PERSONNELISTS WHO CONDUCT THE DISCUSSIONS ARE, IN THE AUTHORITY'S
OPINION, "REPRESENTATIVES OF THE AGENCY." HENCE, THE DISCUSSION IS
BETWEEN REPRESENTATIVES OF THE AGENCY AND "ONE OR MORE EMPLOYEES IN THE
(BARGAINING) UNIT." FINALLY, THE PARTIES HAVE STIPULATED, AND THE RECORD
REVEALS, THAT THE SUBJECTS COVERED CONCERN PERSONNEL POLICIES, PRACTICES
OR OTHER GENERAL CONDITIONS OF EMPLOYMENT.
INASMUCH AS THE ORIENTATION SESSIONS IN QUESTION ARE FORMAL
DISCUSSIONS WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE
THE UNION IS ENTITLED TO BE REPRESENTED AT THEM INSOFAR AS THEY INVOLVE
ANY MEMBER OF ITS BARGAINING UNIT. THUS, BY ITS ACTIONS IN DENYING THE
EXCLUSIVE REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES, THE OPPORTUNITY TO
BE REPRESENTED AT, AND REPRESENT ITS MEMBERS' INTERESTS AT, A FORMAL
DISCUSSION UNDER SECTION 7114(A)(2)(A) OF THE STATUTE CONCERNING
PERSONNEL POLICIES, PRACTICES AND OTHER GENERAL CONDITIONS OF
EMPLOYMENT, THE RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8) OF
THE STATUTE. /3/
ORDER /4/
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 DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION IV, ATLANTA, GEORGIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO GIVE THE NATIONAL TREASURY EMPLOYEES UNION THE
OPPORTUNITY TO BE REPRESENTED AT ORIENTATION SESSIONS FOR NEW EMPLOYEES
CONDUCTED BY REPRESENTATIVES OF ITS REGIONAL PERSONNEL OFFICE AND WHICH
ARE ATTENDED BY MEMBERS OF THE BARGAINING UNIT REPRESENTED BY NATIONAL
TREASURY EMPLOYEES UNION, AND WHERE PERSONNEL POLICIES AND PRACTICES OR
OTHER GENERAL CONDITIONS OF EMPLOYMENT ARE DISCUSSED;
(B) IN ANY LIKE OR RELATED MANNER, FAILING OR REFUSING TO COMPLY WITH
ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE;
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE STATUTE:
(A) GIVE THE NATIONAL TREASURY EMPLOYEES UNION THE OPPORTUNITY TO BE
REPRESENTED AT THE EMPLOYEE ORIENTATION SESSIONS WHICH INVOLVE THE
EMPLOYEES IN ITS BARGAINING UNIT.
(B) POST AT DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV,
ATLANTA, GEORGIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE PRINCIPAL REGIONAL
OFFICIAL AND SHALL BE POSTED AND MAINTAINED BY HER 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 BY RESPONDENT 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 IV, 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.
ISSUED, WASHINGTON, D.C., APRIL 14, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO GIVE THE NATIONAL TREASURY EMPLOYEES UNION THE
OPPORTUNITY TO BE REPRESENTED AT ORIENTATION SESSIONS FOR NEW EMPLOYEES
CONDUCTED BY REPRESENTATIVES OF ITS REGIONAL PERSONNEL OFFICE AND WHICH
ARE ATTENDED BY MEMBERS OF THE BARGAINING UNIT REPRESENTED BY NATIONAL
TREASURY EMPLOYEES UNION, AND WHERE PERSONNEL POLICIES AND PRACTICES OR
OTHER GENERAL CONDITIONS OF EMPLOYMENT ARE DISCUSSED.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, FAIL OR REFUSE TO COMPLY
WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
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.
(ACTIVITY)
DATED:
BY:
(SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING, ATLANTA, GEORGIA,
30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ AS A CONSEQUENCE OF THE ESTABLISHMENT OF THE DEPARTMENT OF
EDUCATION, THE REMAINING PORTION OF THE DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE WAS DESIGNATED AS THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES, AND THE MATTERS AT ISSUE HEREIN RELATE SOLELY TO A BARGAINING
UNIT AT THE DEPARTMENT OF HEALTH AND HUMAN SERVICES.
/2/ 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 PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT. . .
/3/ 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.
/4/ AS THE UNFAIR LABOR PRACTICE FINDING IS LIMITED SOLELY TO A
BARGAINING UNIT AT THE NEWLY DESIGNATED DEPARTMENT OF HEALTH AND HUMAN
SERVICES, THE REMEDIAL ORDER HEREIN IS SO DESIGNATED.