[ v14 p28 ]
14:0028(5)CA
The decision of the Authority follows:
14 FLRA No. 5
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 8-CA-1251
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a brief in
support thereof.
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 in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommendation
dismissing the complaint. As found by the Judge, the meetings in
question were not formal discussions within the meaning of section
7114(a)(2)(A) of the Statute. In this regard, the Authority notes that
the meetings merely involved routine and periodic counselling by a
first-level supervisor with no other management representative present
regarding one employee's job performance. See Department of Health and
Human Services, Social Security Administration, Bureau of Field
Operations, San Francisco, California, 10 FLRA No. 24(1982). See also,
statement of Congressman Ford of Michigan with respect to the meaning of
section 7114(a)(2)(A) of the Statute wherein he stated "that this
subsection does not require that an exclusive representative be present
during highly personal, informal meetings such as counselling sessions
regarding performance." 124 Cong.Rec. 29,187(1978), and similar
statement of Congressman Clay of Missouri, 124 Cong.Rec. 29,200(1978).
ORDER
IT IS ORDERED that the complaint in Case No. 8-CA-1251 be, and it
hereby is, dismissed.
Issued, Washington, D.C., February 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No.: 8-CA-1251
E. A. Jones, Esq.
For the General Counsel
Mr. Jeffrey H. Dasteel
For the Charging Party
Mr. Wilson Schuerholz
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
I. Statement of the Case
This proceeding arose pursuant to the Federal Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute.)
Pursuant to an unfair labor practice charge filed on August 3, 1981,
by American Federation of Government Employees, AFL-CIO (hereinafter
called the Union) against Department of Health and Human Services,
Social Security Administration (hereinafter called Respondent), the
Regional Director for Region 8 of the Federal Labor Relations Authority,
issued a Complaint and Notice of Hearing on November 16, 1981. The
Complaint alleges that Respondent violated section 7116(a)(1), (5) and
(8) of the Statute by failing and refusing to comply with the provisions
of section 7114(a)(2)(A) of the Statute, and by unilaterally instituting
changes in practices and procedures concerning promotion by establishing
certain processing time standards for the granting of promotions for
claims development clerks, without affording the Union adequate notice
and an opportunity to bargain over the impact and implementation of such
practices and procedures.
A hearing was held before the undersigned in Oceanside, California at
which all parties were represented and afforded full opportunity to
examine and cross-examine witnesses and to introduce evidence.
Post-hearing briefs were filed and have been duly considered.
Upon the entire record, including my observation of the witnesses and
their demeanor, I make the following findings, conclusions and
recommendations:
II. Statement of the Facts
Respondent maintains a District Office in Oceanside, California which
serves the general public in answering questions concerning Social
Security benefits, receives and processes applications for Social
Security benefits, and processes requests for original and replacement
Social Security cards.
There is no question of jurisdiction in this matter.
Ruth Westrick is a claims development clerk (CDC) at Respondent's
Oceanside District Office. Ms. Westrick has been the account numbers
clerk for the office since February 1981. Claims development clerks
generally perform various clerical functions in the District Office.
Advancement for claims development clerks is non-competitive to the GS-4
grade level, the journeyman level for the classification. Ms. Westrick
is responsible for the account numbers function in the District Office.
In that position she was a GS-3. The account numbers clerk position
occupied by Ms. Westrick involves the processing of application forms
(Form SS-5) for new or duplicate (replacement) account numbers (social
security numbers). Such applications are filed by individual claimants
either in person or by mail. After receiving and filing, the account
numbers clerk is responsible for reviewing all applications for the
accuracy and sufficiency of the requested information and verifying the
proofs submitted with the application. Applications for new Social
Security numbers are forwarded to Baltimore, Maryland, for final
processing. Duplicate requests are processed in the District Office by
entering the information into the EVAN computer (Electronic Verification
of Account Numbers). The verification or lack of verification (and the
reason why) comes back to the account numbers clerk in the form of a
computer printout. Unverified account numbers call for further
investigation by the account numbers clerk by telephone or otherwise.
Verified numbers are then typed onto cards, the information logged, and
the cards mailed to the applicants. Where there has been a change of
information regarding an account number, the SS-5 form is sent to
Pennsylvania. Forms which did not involve changes but, only reissuance
of a card are destroyed by a paper shredder. Approximately thirty-five
to sixty SS-5 forms are processed on a daily basis, however, most of
these requests are duplicates. In addition to the account number
duties, Westrick since February 1981, also performed back up
receptionist functions. This work involved relieving the receptionist
or assistant receptionist for breaks and lunch hour and assisting at the
reception desk whenever there is a backlog of claimants. This back up
position consumed about two hours per day, and in some instances, if the
receptionist is on leave, more.
In February 1981 when Westrick took over the account numbers clerk
position, a three-week backlog existed in the typing of the cards and a
backlog in the mail. Such a backlog was fairly common prior to the time
Westrick assumed the account numbers clerk position. The most common
backlogs, however, appear to have occurred during the summer due to
student requests for cards. Westrick, since December, 1981, has also
devoted 25% of her duty time to other clerical work, answering the
telephone and controlling overpayments for the Office's Service
Representatives. Prior incumbents in the account numbers position,
which is at a GS-3 level, previously had no problem advancing to the
claims development clerk journeyman level of GS-4 despite the presence
of a backlog. No standards, such as eliminating the backlog, had
previously been set for promotion of claims development clerks to
account numbers clerk GS-4.
Westrick's immediate predecessor in the account numbers clerk
position was one Richard De Los Santos. Mr. De Los Santos was employed
as the full-time receptionist and account numbers clerk from 1979 to
mid-1980. In 1980 he became a backup receptionist to the new full-time
receptionist, Richard Sanders. Thereafter, De Los Santos performed
reception duties when Sanders was on a break or at lunch. During his
tenure as account numbers clerk, there are backlogs, however, De Los
Santos obtained assistance in working on the backlogs. Despite the
existence of backlogs, De Los Santos was promoted to a GS-4 in August
1980 and to a Service Representative in February 1981. His supervisor
had never discussed with him any specific standards that had to be met
for promotion to GS-4. However, his immediate supervisor did check from
time to time and "ask where I was and if I was behind and so forth."
When Westrick was assigned to the account numbers clerk position,
District Manager Alvillar's intention was, according to his testimony,
that unlike prior incumbents in the position, she would work primarily
on account numbers to remove the backlog and to keep the workload under
tight control and on a current basis. Westrick sat at the front desk
for two weeks with De Los Santos before he entered training for the
Service Representative position.
Sometime around March 24, 1981, Westrick underwent a quarterly
evaluation by Operations Supervisor Chris Senelly. Generally, quarterly
evaluations take place in the Oceanside District Office between the
supervisor and the employee and involves review and discussion of the
employee's performance. At this particular meeting the backlog in the
mail, EVAN and typing, which Westrick had inherited from the prior
account numbers clerk, were discussed. Westrick, it was agreed, would
be relieved of the back-up receptionist job for one week to work on the
backlog in the mail. Also Senelly informed Westrick that she should be
"current" in her duties; Senelly left it to Westrick's incoming
supervisor, Marvin Mueller, who was present, to define that term the
following week. However, the later meeting between the two never
occurred. Nor was there any discussion of what was necessary in order
for Westrick to be promoted to GS-4 at the March 24, 1981, meeting.
The next discussion in which Westrick participated regarding her job
occurred June 30, 1981, when her supervisor, Mueller, conducted her next
quarterly evaluation. During the course of this discussion, involving
the audit which Mueller had conducted the day before, Mueller indicated
to Westrick that she should stay more current in typing duplicate cards.
He also indicated that this meant she should not allow more than three
weeks from the time an SS-5 is received to the time the card is typed
and mailed. His opinion was that a realistic goal indeed would be two
weeks. Mueller testified that Westrick received assistance in the
typing of duplicate cards prior to the June 1981 evaluation. Mueller
allegedly recalled two occasions when this occurred, possibly during a
Westrick absence. Westrick testified that she did not receive any
assistance until after the June 30, 1981 meeting.
Toward the end of the June 30 meeting Westrick inquired if she was
going to be promoted to GS-4 since she had a year in grade as a GS-3.
Mueller responded that she was not. Westrick then asked what was needed
for the promotion and was told by Mueller that she had to become
current, to get rid of the backlog. Mueller stated that he tried to
"set up some goals for her to achieve to reach a level at which he could
begin to evaluate her for promotion." Up until that point, according to
Mueller, he had not even considered her for such a promotion. There is
no question that no prior notice of the meeting was given to the Union.
Westrick did not request union participation at this meeting nor is
there any indication on the record that the Union normally became
involved in these quarterly evaluation sessions.
Following the meeting, Mueller briefed Alvillar on what had
transpired and what he was trying to accomplish, including bringing
Westrick's account numbers work current. The definition of "current"
was also discussed between the two. Alvillar testified that the goal
being established was to get the account numbers work once and for all
under control on a current basis, which meant that things would be
processed as they were received. According to Alvillar, Westrick had to
bring her performance to that level before she would be evaluated for
promotion. Alvillar characterized this as a routine goal-setting
exercise, not the establishing of a processing time standard for
granting a promotion. Alvillar further stated that the goal had never
been applied to the position before. The claims development clerks job
is undoubtedly one of varied clerical functions. According to Alvillar,
"there are standards in terms of descriptive terms, such as work will be
processed on a current basis, timely issued and accurately." There are
no specific numericals assigned to these standards. Alvillar also
indicated that the general written standards had been applied to some
twenty claims development clerks that had gone through the Oceanside
Office during the time he served as District Manager.
Several times after the June 30, 1981, meeting, Westrick asked
Mueller what it was going to take for her to get the GS-4 promotion.
Mueller replied that he would discuss it with Westrick, however, no
discussion took place. On July 9, 1981, Westrick went to union
representative, Scott Dugan, and discussed the promotion matter.
Dugan, subsequently, met with District Manager Alvillar on July 9,
1981, concerning Westrick's problem. During the course of the meeting,
Alvillar indicated that specific goals had not yet been set for
Westrick's position, but that some goals should be set. It was agreed
that Westrick's immediate supervisor, Mueller, would put together the
goals and standards which Westrick would have to meet to be promoted to
GS-4. Further discussion with the Union was to take place before
management met with Westrick and her Union representative to inform her
of the goals established.
The next day, Westrick asked Mueller about her promotion. Mueller
requested that she accompany him to the vacant District Manager's
office. There a discussion ensued regarding the goals Westrick would
have to meet to be promoted to GS-4. The Union was not notified of this
meeting. Mueller informed Westrick that he considered her current
performance minimally satisfactory based on the backlog in her typing
and the errors cited in the June 30, 1981, desk audit. Mueller stated
that he would set a goal for Westrick of three weeks from the time of
date of receipt of the SS-5 form, to the time the replacement card is
sent out. He also said that she should eliminate her backlog and keep
current with no more than a two day delay in the mail, EVAN and in the
forwarding of original SSA applications. /1/ Westrick objected that she
could not meet the standard because of the backlog in typing she faced.
Westrick was very upset. Mueller responded that he would give Westrick
relief by having summer aides work on the EVAN and on the logging of
cards mailed. He said Westrick would not, however, receive any
assistance in typing cards. Mueller promised to evaluate Westrick for a
ninety-day period beginning August 1, 1981. He also promised her that
if during that period she kept her work current by the standards he had
just outlined, he would justify her promotion to GS-4. During the
meeting Westrick looked to see if union representative Dugan could join
the discussion; Dugan was apparently unavailable. Subsequent to the
meeting, Westrick went to union representative Dugan and informed him of
what had transpired. /2/
Westrick was provided the assistance requested in the July 10, 1981,
meeting. According to Mueller, Westrick was able to meet the standard
set forth in the July 14, 1981, memo. Also according to Mueller,
Westrick was given additional duties after October 1981 and promoted to
GS-4 in or around the end of November 1981.
Discussion and Conclusions
Respondent submits that it did not change any promotion criteria, but
rather its action was part of its normal application of the general
claims development clerks standard of an employee being current in his
or her work. Respondent also discounts the argument that the meetings
involved herein constituted formal discussions under section 7114 of the
Statute, since it did not consider the substance of the quarterly
evaluation sessions involved to be setting new job criteria for
promotion.
The General Counsel proceeds on the theory that Respondent intended
to change the responsibilities of the account numbers clerk position
thereby setting a promotional prerequisite for that position. Since
there appeared to be some changes in the account numbers clerk position
the General Counsel maintains that the Union should have been given
notification and an opportunity to bargain concerning those changes.
Further, the General Counsel asserts, as already stated, that the
quarterly evaluation meetings were formal discussions within the meaning
of the Statute.
The record does not support the General Counsel's position on either
account. The General Counsel's position that the quarterly evaluation
meetings were used as a vehicle for announcement and discussion of a
change with a unit employee is ill-founded. First, it is uncontradicted
that the quarterly evaluations have always been held with employees to
discuss their respective job performance. Indeed to discuss with
employees their performance on already established criteria in their
position. During the particular quarterly evaluation involved in this
matter, Ms. Westrick was of course concerned with promotional potential
to a GS-4 grade. Respondent's concern was centered more on how she was
performing work in the GS-3 level as an account numbers clerk. I see no
connection between telling an employee that they must perform work in a
timely fashion and setting new criteria for that position. The record,
in fact, supports Respondent's contention that the quarterly evaluation
is performed "if there is a problem, but the information is related to
the employee, indicating that they are meeting the standards of their
particular position, or they are not meeting the standards." The record
suggests that Ms. Westrick was not meeting the standards for the GS-3
position and she was so informed at the quarterly evaluation. It is,
therefore, found that Respondent did not establish any processing time
standards in Westrick's case, but merely pointed out its expectations
according to existing standards. To find otherwise would suggest that
an employer is not entitled to apprise an employee of whether or not his
or her performance is meeting expectations.
There is also no suggestion from the record that any new standards
were set. Contrariwise, the record shows that there was at times a
backlog in account numbers work and that at least Westrick's predecessor
was promoted while such a backlog existed. The record suggests,
however, that her predecessor's backlog was mostly seasonal in nature.
In any event, Westrick's predecessor testified that his supervisor on
occasion checked to see what sort of backlog he had, indicating that
keeping work current was always a goal of the office. Thus, while it
appears that De Los Santos had backlogs, there is no suggestion on the
record that those backlogs were to the same extent as the backlogs
experienced by Westrick.
What appears to have occurred in Westrick's case is that there were
difficulties with her job performance in the account numbers clerk
position for which she was obviously being counselled. The counselling
pointed out to her that Respondent felt she was not performing her work
in a timely fashion and thus not meeting the standards for the GS-3
position which she occupied. This was the full extent of those
meetings. Moreover, Ms. Westrick did not request, nor did it occur to
anyone that the Union need be present at any of these quarterly
evaluations.
In all the circumstances of this matter, it is found that the
quarterly evaluation meetings were not formal discussions within the
meaning of section 7114, and that the purpose of those two meetings was
to discuss Ms. Westrick's job performance and not, as alleged by the
General Counsel, to establish promotion criteria or standards.
Based on the foregoing, it is recommended that the Authority dismiss
the Complaint in Case No. 8-CA-1251, in its entirety.
ORDER
It is hereby Ordered, that the Complaint in Case No. 8-CA-1251 be,
and it hereby is, dismissed, in its entirety.
ELI NASH, JR.
Administrative Law Judge
Dated: August 19, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Mueller acknowledged on direct examination that the goal being
set for Westrick had not been used for prior account numbers clerks. He
stated that the goal was not a standard for her promotion. However, he
admitted on cross-examination that if Westrick had failed to meet the
goal she would not have been promoted.
/2/ A grievance was filed on Westrick's behalf challenging
Respondent's failure to promote her to the GS-4 position.