10:0115(24)CA - HHS, SSA, Bureau of Field Operations, San Francisco, CA and AFGE, Council of SS District Office Locals, San Francisco Region -- 1982 FLRAdec CA

 10 FLRA No. 24
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION
 BUREAU OF FIELD OPERATIONS
 SAN FRANCISCO, CALIFORNIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
 SECURITY DISTRICT OFFICE LOCALS,
 SAN FRANCISCO REGION
 Charging Party
 
                                            Case No. 9-CA-368
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, /1/ THE AUTHORITY
 FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) /2/ BY MEETING WITH AND/OR BARGAINING
 DIRECTLY AND INDIVIDUALLY WITH EMPLOYEES IN THE UNIT CONCERNING TERMS
 AND CONDITIONS OF EMPLOYMENT ON FEBRUARY 28, 1980, IN DEROGATION OF THE
 CHARGING PARTY'S STATUS AS EXCLUSIVE REPRESENTATIVE, AND ADDITIONALLY
 VIOLATED SECTION 7116(A)(1) AND (8) BY HOLDING SUCH FORMAL DISCUSSIONS
 WITHIN THE MEANING OF SECTION 7114(A)(2)(A) /3/ WITHOUT PROVIDING THE
 UNION WITH NOTICE AND AN OPPORTUNITY TO BE PRESENT.
 
    ON AUGUST 30, 1979, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO (AFGE) WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF A
 NATIONAL CONSOLIDATED UNIT CONSISTING OF, INTER ALIA, A UNIT OF
 RESPONDENT'S EMPLOYEES FOR WHICH THE CHARGING PARTY WAS CERTIFIED AS
 EXCLUSIVE REPRESENTATIVE IN 1972.  NO NATIONAL COLLECTIVE BARGAINING
 AGREEMENT YET EXISTS, AND THEREFORE THE TERMS AND CONDITIONS SET FORTH
 IN THE PRE-CONSOLIDATION AGREEMENT NEGOTIATED IN 1977 BETWEEN THE
 RESPONDENT AND THE CHARGING PARTY REMAIN IN EFFECT.  /4/
 
    ON OR ABOUT FEBRUARY 28, 1980, ANITA BUCHANAN, RESPONDENT'S
 OPERATIONS SUPERVISOR AT THE PORTERVILLE BRANCH OFFICE IN PORTERVILLE,
 CALIFORNIA, HELD INDIVIDUAL DISCUSSIONS WITH BARGAINING UNIT EMPLOYEES
 WHEREIN SHE SOLICITED THEIR COMMENTS AND SUGGESTIONS WITH REGARD TO THE
 ASSIGNMENT AND DISTRIBUTION OF WORK FOLLOWING THE REASSIGNMENT OF SAUL
 SALMON, A BARGAINING UNIT EMPLOYEE, TO A 60-DAY DETAIL TO ANOTHER SOCIAL
 SECURITY OFFICE IN A DIFFERENT CITY.  THE DISCUSSIONS WERE HELD WITHOUT
 PROVIDING THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED AT
 THE MEETING.
 
    THE GENERAL COUNSEL CONTENDS THAT THE RESPONDENT'S INDIVIDUAL
 MEETINGS WITH BARGAINING UNIT EMPLOYEES CONSTITUTED DEALING DIRECTLY
 WITH UNIT EMPLOYEES ABOUT WORKING CONDITIONS, THEREBY UNLAWFULLY
 BYPASSING THE UNION.  THE GENERAL COUNSEL FURTHER CONTENDS THAT THE
 MEETINGS WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
 7114(A)(2)(A) OF THE STATUTE AND THAT THE RESPONDENT'S FAILURE TO
 PROVIDE THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED AT
 SUCH MEETINGS VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE.
 ON THE OTHER HAND, THE RESPONDENT ARGUES THAT IT HAD NO OBLIGATION TO
 AFFORD THE UNION AN OPPORTUNITY TO BE PRESENT AT THE MEETINGS BECAUSE IT
 HAD A RIGHT UNDER THE NEGOTIATED AGREEMENT TO HOLD DISCUSSIONS REGARDING
 THE DAY-TO-DAY OPERATIONS OF THE UNIT, /5/ AND THAT THE MEETINGS
 CONSTITUTED PERMISSIBLE INFORMAL CONTACTS FOR THE PURPOSE OF GETTING
 INPUT FROM STAFF MEMBERS.  THE RESPONDENT FURTHER ARGUES THAT BECAUSE
 THE UNION REPRESENTATIVE WAS PRESENT AT THE STAFF MEETING AND CHOSE NOT
 TO EXPRESS HIS VIEWS, HE CONSTRUCTIVELY WAIVED HIS RIGHT TO CONSULT ON
 THE ISSUE.
 
    AS REFLECTED BY THE CONTENTIONS OF THE PARTIES SET FORTH ABOVE, A
 CENTRAL ISSUE IS WHETHER THE DISCUSSIONS IN QUESTION WERE FORMAL OR
 INFORMAL.  ONLY IF THEY WERE "FORMAL" WITHIN THE MEANING OF SECTION
 7114(A)(2)(A) OF THE STATUTE WOULD THERE BE A REQUIREMENT THAT AFGE BE
 GIVEN AN OPPORTUNITY TO BE REPRESENTED.  THE AUTHORITY HAS FOUND
 MEETINGS TO BE "FORMAL DISCUSSIONS" WHERE, FOR EXAMPLE, MANAGEMENT
 REPRESENTATIVES CALLED MEETINGS WITH EMPLOYEES AT WHICH ATTENDANCE WAS
 MANDATORY AND AN AGENDA HAD BEEN ESTABLISHED BY MANAGEMENT TO DISCUSS A
 NUMBER OF MATTERS INVOLVING GENERAL CONDITIONS OF EMPLOYMENT OR SPECIFIC
 CHANGES IN JOB DUTIES.  /6/ ON THE OTHER HAND THE AUTHORITY HAS
 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).  /7/ FOR INSTANCE, THE AUTHORITY HAS
 HELD THAT CERTAIN TYPES OF "INFORMATION GATHERING" ACTIVITIES ARE NOT
 "FORMAL DISCUSSIONS" UNDER SECTION 7114(A)(2)(A) OF THE STATUTE.  /8/
 
    IN THE INSTANT CASE, THE AUTHORITY CONCLUDES THAT THE GENERAL COUNSEL
 HAS NOT MET THE BURDEN OF PROVING THAT THE INDIVIDUAL MEETINGS WERE
 "FORMAL" DISCUSSIONS.  THUS, THE STIPULATED FACTS DO NOT REVEAL (1)
 WHETHER THE INDIVIDUAL WHO HELD THE DISCUSSIONS IS MERELY A FIRST-LEVEL
 SUPERVISOR OR IS HIGHER IN THE MANAGEMENT HIERARCHY;  (2) WHETHER ANY
 OTHER MANAGEMENT REPRESENTATIVES ATTENDED;  (3) WHERE THE INDIVIDUAL
 MEETINGS TOOK PLACE (I.E., IN THE SUPERVISOR'S OFFICE, AT EACH
 EMPLOYEE'S DESK, OR ELSEWHERE);  (4) HOW LONG THE MEETINGS LASTED;  (5)
 HOW THE MEETINGS WERE CALLED (I.E., WITH FORMAL ADVANCE WRITTEN NOTICE
 OR MORE SPONTANEOUSLY AND INFORMALLY;  (6) WHETHER A FORMAL AGENDA WAS
 ESTABLISHED FOR THE MEETINGS;  (7) WHETHER EACH EMPLOYEE'S ATTENDANCE
 WAS MANDATORY;  OR (8) THE MANNER IN WHICH THE MEETINGS WERE CONDUCTED
 (I.E., WHETHER THE EMPLOYEE'S IDENTITY AND COMMENTS WERE NOTED OR
 TRANSCRIBED).  THEREFORE, THE AUTHORITY FINDS THAT THE GENERAL COUNSEL
 HAS FAILED TO ESTABLISH THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
 AND (8) OF THE STATUTE BY FAILING TO COMPLY WITH SECTION 7114(A)(2)(A).
 
    WITH REGARD TO THE ALLEGATION THAT THE RESPONDENT BYPASSED THE UNION
 BY HOLDING THE INDIVIDUAL MEETINGS WITH UNIT EMPLOYEES, ONCE AGAIN THE
 STIPULATED RECORD IS INADEQUATE TO SUSTAIN THE GENERAL COUNSEL'S BURDEN
 OF ESTABLISHING BY A PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.  /9/ THUS, THERE IS
 NO EVIDENCE IN THE RECORD CONCERNING THE SPECIFIC CONTENT OF THE
 COMMUNICATIONS AT SUCH MEETINGS, AND THUS NO EVIDENCE AS TO WHETHER ANY
 MATTERS WERE DISCUSSED AS TO WHICH THE RESPONDENT HAD A DUTY TO BARGAIN
 WITH THE CHARGING PARTY.  THE RECORD ESTABLISHES ONLY THAT THE
 CONVERSATIONS WERE INITIATED SOLELY TO GATHER INFORMATION TO ASSIST THE
 RESPONDENT IN MAKING A NON-NEGOTIABLE MANAGEMENT DETERMINATION
 CONCERNING THE ASSIGNMENT OF WORK.  /10/
 
    IN SUMMARY, THE AUTHORITY CONCLUDES THAT THE GENERAL COUNSEL HAS
 FAILED TO SUSTAIN THE BURDEN OF PROVING THAT THE RESPONDENT UNLAWFULLY
 BYPASSED THE UNION OR DENIED IT THE OPPORTUNITY TO BE PRESENT AT FORMAL
 DISCUSSIONS IN VIOLATION OF SECTION 7116(A)(1), (5) OR (8) OF THE
 STATUTE, AS ALLEGED IN THE COMPLAINT.  THEREFORE, THE COMPLAINT SHALL BE
 DISMISSED IN ITS ENTIRETY.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-368 BE, AND
 IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE GENERAL COUNSEL HAS MOVED TO STRIKE PORTIONS OF THE
 RESPONDENT'S BRIEF ON THE GROUNDS THAT THE BRIEF CONTAINS FACTUAL
 MATERIAL NOT INCLUDED IN THE STIPULATION OF FACTS.  IN REACHING ITS
 DECISION IN THE INSTANT CASE, THE AUTHORITY HAS ONLY CONSIDERED FACTS
 CONTAINED IN THE STIPULATION, AND THEREFORE THE MOTION TO STRIKE IS
 DENIED.
 
    /2/ 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/ 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 PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
 
    /4/ SEE SECTION 2422.2(H)(8) OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    /5/ ARTICLE 5 - MANAGEMENT RIGHTS
 
    SECTION G.
 
    MANAGEMENT OFFICIALS, INCLUDING SUPERVISORS, RETAIN THE RIGHT TO HOLD
 COUNSELING AND OTHER
 
    DISCUSSIONS WITH EMPLOYEES WITHOUT THE PRESENCE OF A UNION
 REPRESENTATIVE, UNLESS AND UNTIL
 
    THE EMPLOYEE HAS ASKED WHETHER THE MEETING MIGHT RESULT IN
 DISCIPLINARY ACTION AND THE REPLY
 
    HAS BEEN IN THE AFFIRMATIVE.
 
    ARTICLE 4, SECTION C(5) OF THE AGREEMENT STATES THAT ARTICLE 5,
 MANAGEMENT RIGHTS, IS NOT SUBJECT TO NEGOTIATIONS AT THE DISTRICT LEVEL.
 
    /6/ SEE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VI,
 ATLANTA, GEORGIA AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV,
 ATLANTA, GEORGIA, 5 FLRA NO.  58(1981).  SEE ALSO NORFOLK NAVAL
 SHIPYARD, PORTSMOUTH, VIRGINIA, 6 FLRA NO. 22(1981).
 
    /7/ SEE OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL
 SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 9 FLRA NO. 9(1982).
 
    /8/ SEE, E.G., INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE
 CENTER, 9 FLRA NO. 132(1982) AND KAISERSLAUTERN AMERICAN HIGH SCHOOL,
 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, GERMANY NORTH REGION, 9 FLRA
 NO. 28(1982).
 
    /9/ SEE U.S. DEPARTMENT OF THE AIR FORCE, 47TH AIR BASE GROUP (ATC),
 LAUGHLIN AIR FORCE BASE, TEXAS, 4 FLRA NO. 65(1980).
 
    /10/ SECTION 7106(A)(2)(B) PROVIDES, IN PERTINENT PART, THAT
 MANAGEMENT HAS THE RIGHT "TO ASSIGN WORK, . . . AND TO DETERMINE THE
 PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED . . . ."