U.S. Federal Labor Relations Authority

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14:0028(5)CA - HHS, SSA and AFGE -- 1984 FLRAdec CA

[ v14 p28 ]
The decision of the Authority follows:

 14 FLRA No. 5
 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).
    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 --------------------
                              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
                         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
                        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
    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
    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.
    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.