10:0120(25)CA - HHS, SSA, Bureau of Field Operations, San Francisco Region and AFGE, Council of SS District Office Locals, San Francisco Region -- 1982 FLRAdec CA

 10 FLRA No. 25
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION
 BUREAU OF FIELD OPERATIONS
 SAN FRANCISCO REGION
 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-369
 
                            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 CONDUCTING A FORMAL DISCUSSION
 WITHIN THE MEANING OF SECTION 7114(A)(2)(A) /3/ ON FEBRUARY 15, 1980
 WITH BARGAINING UNIT EMPLOYEES 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/
 
    A CLAIMS REPRESENTATIVE IS A BARGAINING UNIT EMPLOYEE WHO TAKES
 APPLICATIONS FOR AND ADJUDICATES SOCIAL SECURITY CLAIMS UNDER EITHER
 TITLE II OR TITLE XVI OF THE SOCIAL SECURITY ACT.  PRIOR TO 1978, A
 CLAIMS REPRESENTATIVE ADMINISTERED BOTH TITLE II AND TITLE XVI PROGRAMS.
 
    ON OCTOBER 24, 1979, THE RESPONDENT ESTABLISHED A SPECIAL
 "TELECLAIMS" UNIT IN ADDITION TO REGULAR ALPHABETICAL UNITS IN ITS
 ROSEVILLE BRANCH OFFICE AND ASSIGNED THIS UNIT TO CHRISSY FONG, ONE OF
 ITS CLAIMS REPRESENTATIVES.  THE STATED PURPOSE OF THIS UNIT WAS TO
 PROCESS TITLE II SOCIAL SECURITY CLAIMS BY TELEPHONE AND TO ADJUDICATE
 SUCH CLAIMS.
 
    ON DECEMBER 31, 1979, ROSE ARREGUY, A FORMER ROSEVILLE EMPLOYEE, WAS
 HIRED TO REPLACE FONG AS TITLE II CLAIMS REPRESENTATIVE IN THE ROSEVILLE
 BRANCH OFFICE.  SHORTLY AFTER ARREGUY'S ARRIVAL, SHE WAS ASSIGNED BY
 TITLE II OPERATIONS SUPERVISOR LINDA GIROUX TO PROCESS AND ADJUDICATE
 TITLE II TELECLAIMS.  SHE PROCESSED APPROXIMATELY TEN OF THESE CASES PER
 WEEK.
 
    IN ADDITION TO HER TELECLAIMS RESPONSIBILITIES, BEGINNING ON FEBRUARY
 1, 1980, ARREGUY WAS ASSIGNED TO TAKE IN-PERSON INTERVIEWS AT RANDOM,
 AND AVERAGED ABOUT EIGHT OF THESE PER WEEK.  ALTHOUGH EACH CLAIMS
 REPRESENTATIVE WAS ASSIGNED A UNIT COVERING A PART OF THE ALPHABET AND
 WAS RESPONSIBLE FOR INTERVIEWING AND PROCESSING A CLAIMANT WHOSE LAST
 NAME FELL INTO THE PARTICULAR ALPHABETICAL BREAKDOWN, ARREGUY WAS NOT
 GIVEN AN ALPHABETICAL BREAKDOWN.
 
    SOMETIME DURING JANUARY 1980, IT WAS ANNOUNCED DURING A REGULAR STAFF
 MEETING IN THE ROSEVILLE OFFICE THAT ARREGUY WOULD BE SENT OUT OF THE
 OFFICE TO A FORMAL TITLE II CLAIMS REPRESENTATIVE TRAINING CLASS LASTING
 SEVERAL WEEKS.  ON FEBRUARY 15, 1980, OPERATIONS SUPERVISOR GIROUX HELD
 A TITLE II UNIT MEETING WITH 11 BARGAINING UNIT EMPLOYEES AT WHICH SHE
 ANNOUNCED THAT ARREGUY WOULD BE LEAVING FOR TRAINING ON FEBRUARY 20,
 1980.  GIROUX ALSO DISCUSSED THE REDISTRIBUTION OF ARREGUY'S PENDING
 WORK.  THIS CONSISTED OF, AMONG OTHER THINGS, 15 PENDING CASES WHICH
 WERE ASSIGNED BY GIROUX TO THE REMAINING CLAIMS REPRESENTATIVES BASED ON
 EXISTING ALPHABETICAL BREAKDOWNS.  THE MEETING WAS HELD WITHOUT
 PROVIDING THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED.
 
    THE GENERAL COUNSEL AND THE CHARGING PARTY CONTEND THAT THE
 RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY
 HOLDING A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 7114(A)(2)(A)
 WITH BARGAINING UNIT EMPLOYEES ON FEBRUARY 15, 1980, CONCERNING THE
 DISTRIBUTION OF ADDITIONAL CASES TO BE ASSIGNED, WITHOUT PROVIDING THE
 UNION WITH NOTICE AND AN OPPORTUNITY TO BE PRESENT AT SAID DISCUSSION.
 
    THE RESPONDENT CONTENDS THAT IT DID NOT HAVE AN OBLIGATION TO AFFORD
 THE UNION AN OPPORTUNITY TO BE PRESENT AT THE FEBRUARY 15, 1980 MEETING.
  IN THIS REGARD IT ARGUES THAT, IN ACCORDANCE WITH THE NEGOTIATED
 AGREEMENT, DECISIONS AS TO THE ASSIGNMENT AND FLOW OF WORK MUST BE
 RESERVED TO MANAGEMENT IN ORDER TO EFFECTIVELY CONDUCT ITS OPERATIONS.
 IT IS ARGUED THAT ARTICLE 25, SECTION G OF THE PARTIES' AGREEMENT /5/
 INDICATES WHEN THE PRESENCE OF A UNION REPRESENTATIVE IS NECESSARY, AND
 THAT ARTICLE 5, SECTION B THEREOF /6/ OUTLINES KEY RIGHTS AND
 RESPONSIBILITIES OF MANAGEMENT OFFICIALS.  THE RESPONDENT FURTHER
 CONTENDS THAT THE STAFF MEETING WAS NOT A FORMAL DISCUSSION WITHIN THE
 MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE.
 
    IN A COMPANION CASE INVOLVING THE SAME PARTIES, DEPARTMENT OF HEALTH
 AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, BUREAU OF FIELD
 OPERATIONS, SAN FRANCISCO REGION, 10 FLRA NO. 24(1982), THE AUTHORITY
 DISMISSED A COMPLAINT WHICH ALLEGED, IN PART, THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE BY HOLDING FORMAL
 DISCUSSIONS WITH BARGAINING UNIT EMPLOYEES CONCERNING THE ASSIGNMENT AND
 DISTRIBUTION OF WORK FOLLOWING AN EMPLOYEE'S DETAIL TO ANOTHER CITY
 WITHOUT PROVIDING THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE
 PRESENT.  IN THAT CASE, THE AUTHORITY CONCLUDED THAT THE GENERAL COUNSEL
 HAD FAILED TO MEET THE BURDEN OF PROVING THAT THE MEETINGS IN QUESTION
 WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF
 THE STATUTE SINCE THE STIPULATED RECORD DID NOT CONTAIN ENOUGH SPECIFIC
 EVIDENCE ABOUT THE MEETINGS TO ENABLE THE AUTHORITY TO DETERMINE WHETHER
 THEY WERE "FORMAL" IN NATURE.  IN THE INSTANT CASE, THE AUTHORITY
 SIMILARLY CONCLUDES THAT THE GENERAL COUNSEL HAS NOT MET ITS BURDEN OF
 PROVING THAT THE FEBRUARY 15, 1980 MEETING WAS A "FORMAL" DISCUSSION.
 THUS, THERE IS NO SHOWING OF (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
 EMPLOYEES ATTENDANCE WAS MANDATORY;  OR (7) THE MANNER IN WHICH THE
 MEETING WAS CONDUCTED (I.E., WHETHER THE EMPLOYEES' IDENTITIES 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), (5) OR (8) OF THE STATUTE BY FAILING TO
 COMPLY WITH SECTION 7114(A)(2)(A), AND THAT THE COMPLAINT THEREFORE MUST
 BE DISMISSED IN ITS ENTIRETY.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-369 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 25, 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.
 
    /6/ ARTICLE 5, SECTION B
 
    MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN ACCORDANCE
 WITH APPLICABLE LAWS AND
 
    REGULATIONS:
 
    (1) TO DIRECT EMPLOYEES OF THE AGENCY;
 
    (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
 POSITIONS WITHIN THE
 
    AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
 ACTION AGAINST
 
    EMPLOYEES;
 
    (3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
 OTHER LEGITIMATE
 
    REASONS;
 
    (4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
 TO THEM;
 
    (5) TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH
 OPERATIONS ARE TO BE
 
    CONDUCTED;  AND
 
    (6) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE
 MISSION OF THE AGENCY IN
 
    SITUATIONS OF EMERGENCY.