14:0712(96)CA - HHS, SSA, San Francisco Region, San Francisco, CA and AFGE Council of Security District Office Locals, San Francisco Region -- 1984 FLRAdec CA
[ v14 p712 ]
14:0712(96)CA
The decision of the Authority follows:
14 FLRA No. 96
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO REGION
SAN FRANCISCO, CALIFORNIA
Respondent
and
AFGE COUNCIL OF SOCIAL SECURITY
DISTRICT OFFICE LOCALS
SAN FRANCISCO REGION
Charging Party
Case No. 9-CA-578
DECISION AND ORDER
The Administrative Law Judge issued the attached 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. Exceptions to the
Judge's Decision were filed by the General Counsel.
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 Recommended Order,
as modified herein.
In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA 115 (1982), the Authority noted a number of factors relevant to
a determination of whether meetings, alleged to be "formal discussions"
within the meaning of section 7114(a)(2)(A) of the Statute, are in fact
"formal" in nature. Thereafter, in Defense Logistics Agency, Defense
Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984), the Authority
emphasized that such factors were not intended to be exhaustive, that
other factors may be identified and applied as appropriate in a
particular case. Thus, in determining formality, the Authority will
consider the totality of facts and circumstances presented.
In the instant case, in finding that the General Counsel had failed
to prove by a preponderance of the evidence that the meetings involved
were formal discussions within the meaning of section 7114(a)(2)(A) of
the Statute, the Judge listed numerous factors she considered relevant
to making such a determination. Although the Authority specifically
does not pass upon the relevance of all the factors listed, the
Authority concludes, in agreement with the Judge, that the meetings
involved herein were not formal discussions within the meaning of
section 7114(a)(2)(A) of the Statute. In finding that the meetings were
not "formal" in nature, the Authority notes particularly that they were
not initiated solely by the Respondent, but rather resulted from the
agreement reached between the Respondent and the Union to notify the
employees of a change in their hours of work. /1A/ Further, the
meetings were conducted by the employees' first level supervisor
separately with each employee in an informal manner with no advance
written notice or pre-planned agenda.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-578 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-578
Wilson Schuerholz,
For the Respondent
Vince Morgante,
For the Charging Party
Patricia Jeanne Howze,
For the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp.
III, 1979) (hereinafter referred to as the "Statute"), and the rules and
regulations issued thereunder and published at 45 Fed.Reg. 3482 et seq.,
5 C.F.R. 2421 et seq.
The Charging Party (hereinafter also referred to as the "Union")
filed the charge that initiated this proceeding on July 9, 1980. /1/ On
September 30, the Regional Director, Region IX, of the Federal Labor
Relations Authority (hereinafter, the "Authority") issued a Complaint
and Notice of Hearing based on the Union's charge.
The Complaint alleges that Respondent (also referred to as "SSA")
committed unfair labor practices in violation of Section 7116(a)(1),
(5), and (8) of the Statute. /2/ The violations allegedly arise out of
a change in working hours of bargaining-unit employees. The change was
announced to the employees on May 2. The Complaint alleges that the
announcement was made without notice to the Union and without giving the
Union an opportunity to bargain over the impact and implementation of
the change. The Complaint also alleges that a supervisor of Respondent
met and bargained directly and individually with the affected employees
without effective notice to the Union or an opportunity for the Union to
be present, in derogation of the Union's status as exclusive
representative.
A hearing on the matter was held on July 16, 1981, in Fresno,
California. The parties introduced evidence and examined and
cross-examined witnesses. Briefs were received, on August 27 from the
Respondent, and on September 1 from the General Counsel. Based on the
record made at the hearing, my observation of the demeanor of the
witnesses, and the briefs, I make the following findings, and
conclusions and recommended order.
Findings of Fact
1. Respondent is an agency of the United States Government which
operates a District Office in Fresno, California. The District Office
operates four branches in and around the Fresno area and is under the
direction of an Area Director, located in San Francisco.
2. The Charging Party is a labor organization and the exclusive
representative of certain employees of Respondent, including Claims
Development Clerks (hereinafter "CDSs") employed at the Fresno District
Office and in its four branches. At all times herein pertinent, Sandra
Bailie was the only Union contact person for management operating the
Fresno District of Respondent, including its four branches.
Representing management in labor-management matters were the District
Manager, the Assistant District Manager, and the Chief Operating Officer
of the Fresno District Office.
3. In March, Respondent's Fresno District Office offered the status
of permanent parttime employee to certain CDSs who had been working as
temporary employees, employed for a term of one year, and working 40
hours a week. In converting to permanent parttime employees, the CDSs
accepting the offer signed a Form 50 on which was a "designated" tour of
duty of 32 hours a week. (TR. 44). The CDSs signed the forms after
they had accepted the offer and been told not to worry about the
designated 32 hours, and that they would continue to work 40 hours a
week, except for every fifth week, when they would work 32 hours.
4. Upon conversion, the CDSs immediately started to work a schedule
of 40 hours a week for 4 weeks and 32 hours for the fifth week. The
Fresno District Office believed it could work parttime employees on such
a schedule by treating hours over 32 as overtime hours.
5. On Friday, May 2, a memorandum was received in the Fresno
District Office from the Area Director. It accused the Fresno District
of "playing games" and "Mickey-mousing" the hours of the parttime CDSs.
(TR. 64, 76, 85). It ordered the practice to cease. Blanche Bartsch,
the Chief Operating Officer, was informed of the memorandum by the
Assistant District Director, shortly before noon, on May 2. She was
"very upset" about it. (TR 80). She had employees willing to work the
schedule, and who needed the money. There was plenty of work for them
to do. And no more employees could be hired, at that time.
6. As soon as she learned of the memorandum, Ms. Bartsch told the
Assistant District Manager that she would show it to Sandra Bailie and,
if Ms. Bailie had any objection to it, "we'll have a formal meeting."
(TR. 76-77). Ms. Bartsch testified as follows as to her conversation
with Ms. Bailie:
And so I went out to Sandy and I showed her the memo that we
got. And I said, "I'm very upset about this, Sandy; but we were
ordered to do this, and it appears we're going to have to follow
these orders." And I asked her if she had any objection, or wanted
a formal meeting over this, what would she like to do with this.
And she just, being the reasonable person she always is, said well
there's nothing you can do about it, so there's no need for a
formal meeting. So I said okay, and we discussed it. And I said
that I intended to tell them (the employees) right away because I
felt they should know about this. And she said yes, do that. So
I said that I would tell them in my office before the day's over,
so that they know as soon as I know about. And I said I'd tell
Mr. Petty to tell the branch managers and they in turn can tell
their people.
(TR. 77).
Ms. Bartsch also told Ms. Bailie that: '(I)t appears we're going to
have to do this effective on Monday, the 5th." (TR. 78). (TR. 77) Ms.
Bartsch then went to the desk of each of the six parttime employees in
the District Office and told them what had happened. The Assistant
District Manager called the branch offices and directed that their
parttime employees be informed of the Area Director's directive.
7. Ms. Bailie testified that she was not consulted about the matter.
She also denied ever having oral discussions about such matters. She
testified that discussions with management were always at formal
meetings at which notes were made and kept. She made the notes, which
were reviewed by management; and they constituted the only set of
official notes maintained. Prior to testifying, the reviewed all the
notes and found no reference to the matter at issue. Occasionally,
notification of proposed changes would be given outside of meetings.
Under these circumstances, Ms. Bailie would receive written notification
in a sealed envelope left on her desk. These notices were promptly
filed, along with minutes of meetings, in the District Office in Fresno.
Ms. Bailie testified that she never received oral notification of a
change in working conditions.
8. Ms. Bailie's testimony appeared to rely solely on the way
business was customarily done. The business here at hand was unusual,
however, and did not lend itself to handling in the customary manner.
Ms. Bartsch's testimony was based upon her recollection of what, for
her, was a very unsettling matter, and one which she would be likely to
recall. The Area Director had accused her office of playing games and
Mickey-mousing hours. She was the Chief Operating Officer and would
feel personally accused. Also, the change was one which would impact
adversely on the office workload. Ms. Bartsch seemed to be confident of
her facts and honest in her recitation of them. I find Ms. Bartsch to
be a more reliable witness than Ms. Bailie, and credit Ms. Bartsch's
recollection, as set forth in finding 6, supra. Accordingly, it is
found that Respondent's Chief Operating Officer gave notice to the
appropriate Union official, Sandra Bailie, on May 2, shortly before the
noon hour, of the cutback in hours and that it appeared that the cutback
would have to be made effective on Monday morning, May 5; asked Ms.
Bailie if she wanted a formal meeting over the matter; was told by Ms.
Bailie that there was nothing Ms. Bartsch could do about it and so there
was no need for such a meeting; and, after a discussion, agreed with
Ms. Bailie that the employees affected should be told before the day was
over, and that the branch managers should be told to inform the
employees in their offices.
9. On Friday, May 2, at the Downtown Fresno Branch Office,
Supervisor Cindy Robinson called the two parttime CDSs working there
into the office of the Branch Manager. While seated in his chair,
behind his desk, Ms. Robinson "informed" each of the CDSs that,
commencing Monday, they would be working only 32 hours. (TR 40). She
met with each CDS separately. Each meeting lasted about five minutes.
Each CDS gave a clear account of what happened at the meeting with Ms.
Robinson; and I credit their recollections over that of Ms. Robinson,
who appeared somewhat hazy in the account she gave of each meeting.
Marina Magdaleno testified that:
Q. Was Ms. Robinson reading any documents to you?
A. No.
Q. Tell us, to the best of your memory, what was said during
this meeting with Ms. Robinson on May 2nd.
A. When I went into the office she said that she wanted to
inform me that effective Monday, this was on a Friday, that I was
no longer going to be able to work 40 hours a week, that I would
only be able to work 32 hours a week as I had been doing on the
fifth week. She gave me the alternatives of working either four
days a week with one day off, or working four short days and one
long day, just to keep it within the 32 hours. And that I was to
let her know as to what my decision was, because these were the
options she said that were given to her by the DO.
Q. Did you ask Ms. Robinson any questions?
A. Well, I asked her why this had happened. You know, what had
caused the change in our hours. In our prior conversations when
we converted they had stipulated that when we were converted to
permanent part time that it would not affect our 40-hour week, and
we would still be allowed to work.
Q. Did she respond to this question of why?
A. Well, she said she didn't know why. That there was nothing
that she could really tell us because everything was still kind of
up in the air with the DO and the region.
(TR. 40-55).
The other employee, Helen Colmenero testified that:
A. She just said that there was going to be a change in our
tour of duty and our hours. As I said before, instead of working
32 hours every fifth week we would be working 32 hours every week.
I asked her if we had a choice and she said no. And I asked her
why, and she said she had no answers. She didn't know why. And I
asked her from where, you know, did it come from. And she didn't
say; she couldn't give me any answers. She also said that if we
wanted to change our hours from what we had to let her know by the
end of the day if we were going to change them. But I told her
that I'd probably keep what I had, and I would think about it and
let her know by the end of the day if she wanted.
Q. What options did you have as far as changing your hours was
concerned? As far as scheduling your hours, what options were you
offered?
A. Well, we could change them as we wanted, or keep what we
had. She wanted us to let her know so that she could see if it
would conflict with anything, and she would approve it one way or
the other.
(TR. 54-55).
Later in the day each CDS told Ms. Robinson the hours each wanted to
work.
10. The cutback in hours, by 17 percent, worked a financial hardship
on the CDSs. They not only received less money, they also lost annual
and sick leave and suffered an increase in their health insurance
premiums. Ms. Magdaleno worked the 32-hour schedule from May until she
left the employment of Respondent, in December. Ms. Colmenero worked
the 32-hour schedule from May 5 until April 1981, when she was given
"the option to work 40 hours." (TR. 56).
Discussion and Conclusions
The General Counsel formulates several issues in this case.
Factually and legally, each must be resolved in favor of Respondent.
1. The first issue raised is whether Respondent gave notice, and an
opportunity to bargain, to the Union representative, Sandra Bailie,
prior to implementation of a cutback in hours of bargaining unit
employees. As found in finding 8, above, Respondent's Chief Operating
Officer did give such notice and opportunity. In making this finding, I
have considered the evidence of "habit" in giving notice, as urged by
the General Counsel at pages 8-10 of the brief, and the fact that the
notice here involved was not of the habitual sort given, namely, at
formal meetings where minutes were kept, or by a written notice left in
a sealed envelope on Ms. Bailie's desk. The notice given, was, however,
appropriate to the unusual circumstances faced by the Respondent's Chief
Operating Officer in the Fresno District. She was informed that the
Fresno District had to cease conducting an illegal practice of allowing
parttime employees to work full workweeks. Under these particular
circumstances, it would have been unusual for her to have followed usual
practices. It is more believable that her reaction to this upsetting
news was to give immediate oral notice to the responsible Union
official, Sandra Bailie, and to offer to hold a formal meeting to
negotiate the impact and implementation of the change on the affected
employees.
2. The next issue posed is whether, assuming arguendo that notice
was given, the notice was adequate and sufficient in view of the short
time span between giving the notice, around noon on Friday, May 2, and
the implementing of the change, on Monday, May 5. The evidence which I
have credited establishes that, before implementation, the proper Union
representative, Ms. Bailie, discussed the matter with Ms. Bartsch, an
appropriate official of Respondent; conveyed to Ms. Bartsch the opinion
that nothing could be done about it; agreed that the affected employees
should be notified right away; asked for no delay in implementation;
and rejected the offer of a formal meeting. Under these circumstances,
implementation on the workday following the notice did not render the
notice inadequate or insufficient.
Cases cited by the General Counsel are distinguishable, on their
facts. /3/ Several involves situations where no notice was given to a
Union representative, in the capacity of a Union representative, prior
to implementation. These include United States Air Force, Air Force
Logistics Command, Aerospace Guidance and Metrology Centre, Newark,
Ohio, 4 FLRA No. 70 (1980); Internal Revenue Service, Washington, D.C.,
4 FLRA No. 68 (1980); Department of Treasury, Internal Revenue Service,
Jacksonville District, 3 FLRA No. 103 (1980); Department of Treasury,
Internal Revenue Service, Austin Service Center, Austin, Texas, A/SLMR
1188, No. 1142 (1978); Internal Revenue Service and Brooklyn District
Office, 2 FLRA 587, No. 76 (1980); Aircraft Fire and Rescue Division,
Air Operations Department, Naval Air Station, Norfolk, Virginia, 3 FLRA
No. 18 (1980).
One cited case does hold that giving what was, in effect, only one
day's notice prior to reassigning nine employees was not sufficient;
but in that case the union had invoked the right to negotiate, upon
receiving the notice, and had sought information from the activity in
order to formulate proposals. See Bureau of Government Financial
Operations, Headquarters, 3-CA-1807, OALJ-81-120 (June 12, 1981).
The General Counsel argues that the Union here was presented with a
fait accompli and, for this reason, no significance should be attached
to the Union's failure to request bargaining and submit proposals, as
these would have been futile acts. Cases cited do hold that unions need
not perform futile acts; but the situations were quite different than
the one here involved. In American Enterprises, Inc. and Sheet Metal
Workers International Association, Local Union No. 60, AFL-CIO, 191 NLRB
866, No. 118 (1971) the National Labor Relations Board held that
management violated its duty to bargain even though no request for
bargaining was made by the Union, in a situation where antiunion
activities were so pervasive that a bargaining request would have been a
futile act. And in two other Board cases cited, the unions had
requested bargaining at least once; the requests had been denied; and
the Board ruled that repeated requests need not be made after a firm
refusal. See Solon Manufacturing Company and United Paperworkers
International Union, AFL-CIO, 222 NLRB 542, 543, fn. 4, No. 84 (1976);
Williams Energy Company and Teamsters Local Union No. 104, An Affiliate
of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, 218 NLRB 1080, fn. 4, No. 165 (1975).
Finally, in a decision under Executive Order 11491, which controlled
labor relations in the Federal sector before passage of the Statute, it
was held that a union need not request bargaining when it was led to
believe that the change had already been implemented at the time notice
was given to the union. See Army and Air Force Exchange, Hawaii
Regional Exchange, 4 A/SLMR 791, No. 454 (1974), holding that a union
should not be required to perform what "would be essentially a futile
act." 4 A/SLMR at 798.
Here, the General Counsel has not shown, by a preponderance of
evidence, that it would have been "a futile act" for the Union to have
requested bargaining and time to formulate proposals on the impact and
implementation of the cutback in hours. Although Ms. Bartsch did
indicate to Ms. Bailie that the order to cutback the hours of parttime
employees did not give her "any leeway," and that it "appear(ed)" that
the cutbacks would have to be effective on the next workday (TR. 78),
the record shows that Ms. Bartsch also stated to the Assistant District
Manager that: "if she (Ms. Bailie) has any objection to it we'll have a
formal meeting." (TR. 76-77). And she did ask Ms. Bailie "if she had
any objection, or wanted a formal meeting over this." (TR 77). From
such evidence a conclusion cannot be drawn that an accommodation would
not have been made to an objection and request for bargaining by the
Union. It can be as readily concluded that the Union had no proposal to
offer, other than immediate notification to affected employees-- which
was agreed to by Respondent, and done.
3. The General Counsel next argues that each of the two meetings
Cindy Robinson held with a bargaining-unit employee constituted a
"formal discussion," within the meaning of Section 7114(a)(2)(A) of the
Statute, and a violation of the Statute because each was held without
notice to the Union and an opportunity for Union representation.
Section 7114(a)(2)(A) of the Statute provides:
(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 practices or other general condition of employment . . . .
A number of decisions, in the Federal-sector, labor-relations field,
have explored the perimeters of just what constitutes a "formal
discussion." Most were decided under Executive Order 11491 which, in
Section 10(e), similarly provided that a labor organization accorded
exclusive-recognition rights:
. . . shall be given the opportunity to be represented at
formal discussions between management and employees or employee
representatives concerning grievances, personnel policies and
practices, or other matters affecting general working conditions
of employees in the unit.
Decisions under the Executive Order are given a special status, by
Section 7135 of the Statute, which provides that:
. . . decisions issued under Executive Order 11491 . . . shall
remain in full force and effect . . . unless otherwise superceded
by the Statute, regulations, or Authority decisions.
A starting point for resolving this issue is that every discussion
between agency management and employees does not call for union
representation, under the law. See National Aeronautics and Space
Administration, NASA, Lyndon B. Johnson Space Center, Houston, Texas,
(hereinafter, "NASA") 5 A/SLMR 633 at 635, No. 457, FLRC No. 74A-95
(1975), holding that a meeting called to solicit employee opinions about
an agency's EEO program was not such a discussion. This and other
decisions declare, or suggest that affirmative answers to the following
questions indicate that a "formal discussion" has taken place.
(a) Was the meeting prearranged, with an agenda and written notice
provided, rather than a spur-of-the-moment encounter. See Department of
Health, Education and Welfare, Region IV, Atlanta, Georgia and
Department of Health and Human Services, Region IV, Atlanta, Georgia
(hereinafter referred to as "HHS, Atlanta"), 5 FLRA No. 58 (1981);
Department of Defense, U.S. Navy, Norfolk Naval Shipyard (hereinafter,
"Norfolk Naval Shipyard"), 6 FLRC 1104, 1108-1109, A/SLMR No. 908, FLRC
No. 77A-141 (1978); and U.S. Environmental Protection Agency
(hereinafter, "EPA"), Case No. 3-CA-1528, OALJ-81-119 (1981).
(b) Did fairly high-level officials of management conduct the
meeting. See Department of the Air Force, 47th Air Base Group (ATC),
Laughlin Air Force Base, Texas ("Laughlin"), 4 FLRA No. 65 (1980);
Federal Aviation Administration, National Aviation Facilities,
Experimental Center, Atlantic City, New Jersey ("FAA"), 4 A/SLMR 648 at
649, 660, 662, 667, No. 438 (1974); U.S. Department of the Army,
Transportation Motor Pool, Ft. Wainwright, Alaska, ("Fort Wainwright"),
3 A/SLMR 291 at 297, No. 278 (1973); U.S. Army Headquarters, U.S. Army
Training Center, Infantry, Fort Jackson Laundry Facility, Fort Jackson,
South Carolina ("Ft. Jackson"), 3 A/SLMR 61 at 62, No. 242 (1973).
(c) Was a record made of the meeting. See Norfolk Naval Shipyard,
ibid; and Fort Jackson, ibid.
(d) Was attendance of employees mandatory. See HHS, Atlanta, ibid.
(e) Was the situs of the meeting in an official's office or away from
the worksite of the employee. See Norfolk Naval Shipyard, 6 FLRC at
1108; and Fort Wainwright, 3 A/SLMR at 296.
(f) Was it called to discuss a subject matter named in Sections
7114(a)(2)(A), or 10(e). See HHS, Atlanta, ibid; Norfolk Naval
Shipyard, ibid; and Department of the Treasury, IRS, Chicago District
("IRS, Chicago"), 8 A/SLMR 1046, at 1047, No. 1120 (1978).
(g) Was a subject matter named in the Sections 7114(a)(2)(A) or 10(e)
actually discussed, even though the meeting was not called for that
purpose; and did management raise the matter. See Norfolk Naval
Shipyard, 6 FLRC at 1109; and IRS, Chicago, ibid.
(h) Was management prepared to enter into a discussion, even though
the employees remained silent and had no responses or questions. See
IRS, Chicago, ibid; Department of Health, Education and Welfare, Region
IX, San Francisco, California ("HEW, SF"), 8 A/SLMR 1273 at 1277, No.
1156 (1978); and Fort Wainwright, 3 A/SLMR at 297.
(i) Was the meeting of sufficient duration to allow for a discussion.
See Fort Wainwright, ibid.
(j) Did the matter discussed "have ramifications for all unit
employees," or was it "integrally related to the formal grievance
process." Norfolk Naval Shipyard, 6 FLRC at 1109, fn. 6. See also Fort
Wainwright, 3 A/SLMR at 300-301; Fort Jackson, ibid; FAA, 4 A/SLMR at
649; Department of the Treasury, U.S. Customs Service, Region VII, Los
Angeles, California, 7 A/SLMR 956 at 960, No. 926 (1977); EPA, ibid;
and Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, Case No. 8-CA-390, OALJ-81-059
(1981).
(k) Were the discussions more than "mere 'counselling' sessions
involving individual employees' conduct." Norfolk Naval Shipyard, ibid.
See also Internal Revenue Service, Mid-Atlantic Service Center, 4 A/SLMR
520 at 524, No. 421 (1974); and Department of Defense, National Guard
Bureau, Texas Air National Guard, 4 A/SLMR 33 at 34-35, No. 336 (1974).
(l) Were the discussions more than "simply discussions between an
employee and her supervisor in the course of day-to-day operations of
the unit." Social Security Administration, Great Lakes Program Center,
Chicago, Illinois, 7 A/SLMR 194, No. 804 (1977). See also Norfolk Naval
Shipyard, ibid.
(m) Were the meetings more than merely "information-gathering
devices." nasa, ibid.
(n) Was the meeting concerned with more than a mere announcement of a
decision already made. See SSA, SF, ibid; and Department of Defense,
National Guard Bureau ("NGB"), Case No. 6-CA-210, OALJ-81-121 (1981).
(o) Was the meeting instigated by management, and not at the request
of an employee or a union. See EPA, ibid.
(p) Did management attempt to agree or bargain with the employees, or
gather information regarding employee sentiments for the purpose of
subsequently persuading the union to accept a position in bargaining
negotiations. See NASA, ibid; Rocky Mountain Arsenal, Denver,
Colorado, 7 A/SLMR 983, No. 933 (1977); and Laughlin, ibid.
(q) Was there any "give-and-take," or debate between management and
the employees in attendance. See Bureau of Field Operations, Social
Security Administration, San Francisco, California, Case No. 9-CA-372,
OALJ-81-145 (1981); NGB, ibid; EPA, ibid; and National Archives, Case
No. 3-CA-993, OALJ-81-139 (1981). /4/
Application of the above criteria to the record made in this case
results in a mix of signals. Some indicia of a "formal discussion" were
present: attendance was mandatory; each meeting was held in the office
of the highest-ranking officer of the branch office, the manager,
although he did not attend; and the subject matter of each meeting, a
cutback in hours, is a matter which Section 7114(a)(2)(A) covers. On
the other hand, each of the two meetings amounted basically to a mere
follow-through on the agreement reached between Respondent and the Union
to notify the employees, at once, of the cutback in hours. The
supervisor was totally uninformed as to the whys and wherefores of the
decision, and could answer no questions on the matter. None of the
usual trappings of a formal meeting were present-- no written notice, no
preplanned agenda, no taking of minutes. The one question asked by the
supervisor of the employees-- what schedule of hours each wanted to
work-- was not shown to have any impact on the unit generally. And the
supervisor did not seek any commitment as to schedules from the
employees at the meeting itself. She made no attempt to bargain with
them and, indeed, had no such authority. Weighing all of these factors,
I cannot conclude that the General Counsel proved, by a preponderance of
the evidence, that any "formal discussion" took place. See 5 C.F.R.
2423.18 for the quantum of proof required of the General Counsel.
The cases cited by the General Counsel, at pages 18-20 of the brief,
are instructive, but distinguishable, in that they involved indicia of a
"formal meeting" not present here. In Department of Health, Education
and Welfare, Region IV, Atlanta, Georgia, 5 FLRA No. 58 (1981) the
orientation sessions at issue were regularly-scheduled ones, held on the
third Wednesday of every month, with established agendas which included
a question-and-answer period between agency personnelists, knowledgeable
about the subject matter, and new employees.
In Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74, No. 22
(1981), the meetings at issue were ones regularly scheduled at the
beginning of each shift and designed to inform crane operators of
important developments. See 6 FLRA at 85. (The focus of this decision
was on whether the Union received adequate notice; and it is not clear
on what basis the Authority found the meetings to be "formal
discussions.") In United States Government Printing Office, Public
Documents Distribution Center, Pueblo, Colorado, Case No. 7-CA-659,
OALJ-81-111 (1981), the meeting was preplanned by a supervisor and a
section chief; prior notice of it was given; it lasted for one hour;
all unit employees were required to attend; and employees responded
with ideas and suggestions. In U.S. Department of the Army,
Transportation Motor Pool, Ft. Wainwright, Alaska, 3 A/SLMR 291, No. 278
(1973), the meeting was "a rather high-level" one, involving three tiers
of supervisors; and "more than a mere announcement" of a change was
made. 3 A/SLMR at 296-297. In U.S. Army Headquarters, U.S. Army
Training Center, Fort Jackson Laundry Facility, Fort Jackson, South
Carolina, 3 A/SLMR 61, No. 242 (1973), notes of the meeting were taken;
and it was attended by not only the immediate supervisor of the employee
who was the subject of the meeting, but also by three other management
officials. In Department of Defense, U.S. Navy, Norfolk Naval Shipyard,
6 FLRC 1104, No. 77A-141 (1978), the Federal Labor Relations Council
reviewed a decision of the Assistant Secretary of Labor, under the
Executive Order, and left undisturbed what it considered to be an
"adequately supported factual determination," that a "formal discussion"
took place where the head of the shop conducted the meeting pursuant to
a formal instruction promulgated by the Commander of the Shipyard. See
6 FLRC at 1109 and 7 A/SLMR 829, 832, No. 908 (1977). /5/ In Internal
Revenue Service, Atlanta District Office, Atlanta, Georgia, 8 A/SLMR
370, No. 1014 (1978), the meeting was one of a series conducted,
periodically, at which notes were taken and reports submitted. The
meeting touched on some 40 items, 3 of which involved matters named in
Section 10(e) of the Order, and were the subject of "comments" and
"conversation" by the participants at the meeting. See 8 A/SLMR at 376.
A case not cited by the General Counsel, but one which I find to be
of some relevance here, is Department of the Treasury, IRS, Chicago
District, 8 A/SLMR 1045, No. 1120 (1978). /6/ It involved three
meetings, two of which were held not to be "formal discussions." These
two concerned wrongful disclosure of taxpayer records, were held "solely
for instructional purposes," and "questions from the audience which
arguably related to personnel policies and practices and matters
affecting working conditions did not transform the meetings into formal
discussions." 8 A/SLMR at 1047. It was noted, in this connection, that
the agency did not raise the questions and did not bypass the union
since the agency officers conducting the meetings "clearly indicated
that (they) could not give any direct or conclusive response to the
employees' questions." 8 A/SLMR at 1047. Here, too, the employees
raised questions; but the agency officer conducting the meeting, Ms.
Robinson, clearly indicated that she could not give any responses.
4. Finally, the General Counsel argues that the facts of record
demonstrates that Cindy Robinson dealt directly with bargaining-unit
employees, in derogation of the Union's status as exclusive
representative. See GC Br 6, 22-23. Reliance is placed on two cases--
U.S. Department of the Air Force, 47th Air Base Group (ATC), Laughlin
Air Force Base, Texas, 4 FLRA No. 65 (1980) and Department of the Navy,
Naval Air Station, Fallon, Nevada, A/SLMR No. 432, FLRC No. 74A-80, 3
FLRC 698 at 701 (1975). The criteria used for making by-pass
determinations are stated in these decisions as follows, with Laughlin,
decided under this Statute, adopting verbatim the criteria of Fallon,
decided under Executive Order 11491, as amended:
In determining whether a communication is violative of the
Order, it must be judged independently and a determination made as
to whether that communication constitutes, for example, an attempt
by agency management to deal or negotiate directly with unit
employees or to threaten or promise benefits to employees. In
reaching this determination, both the content of the communication
and the circumstances surrounding it must be considered. More
specifically, all communications between agency management and
unit employees over matters relating to the collective bargaining
relationship are not violative. Rather communications which, for
example, amount to an attempt to bypass the exclusive
representative and bargain directly with employees, or which urge
employees to put pressure on the representative to take a certain
course of action, or which threaten or promise benefits to
employees are violative of the Order.
In Laughlin, no "formal discussion" or bypass situation was found
when a bowling alley manager unilaterally notified bargaining-unit
employees of a decision to close, for a few days, the snack bar where
they worked, and asked them whether they wished to take annual leave or
leave without pay for the duration of the closure. Found persuasive
were several facts-- the manager was not a personnel officer, or one
shown to have authority to establish personnel policies or practices;
and no bargaining attempt was made. Also, no bypass was found to have
occurred when the manager contacted the employees concerning other work
for them, following a labor-management agreement that such relocation
should be attempted.
The Laughlin facts are markedly similar to those here involved. See
findings 2, 8 and 9, supra. Cindy Robinson was not shown to have any
authority to set personnel policies or practices or engage in collective
bargaining on behalf of SSA, and was used simply as a conduit for
relaying information from the District Office. She made no attempt to
bargain with the employees at the meeting and, beyond announcing the
mandatory change in hours to the employees and listening to their
questions (to which she had no answers), she merely asked them to advise
her, later in the day, of the schedule each wished to work. The
District Office had limited the CDSs to two options only; and Ms.
Robinson had no authority to vary them, and made no attempt to persuade
or pressure the employees in exercising their option.
In the Fallon case an unlawful bypass was found under facts quite
different then the ones presented for decision here. In Fallon the
activity posted a letter, written by the activity's commanding officer
to the union's president, and in which aspersions were case on the
conduct of the union president at a special meeting held to resolve a
bargaining problem and an unfair labor practice charge.
Two are other factually-distinguishable cases are cited by the
General Counsel in which unlawful bypasses were found. One is Internal
Revenue Service, Washington, D.C., 4 FLRA No. 68 (1980) in which
employees were told at a regularly-scheduled group meeting that a new
type of case review was to start immediately for revenue agents. The
other case is Department of Health, Education and Welfare, Social
Security Administration, BRSI, Northeastern Program Service Center, 1
FLRA 508, No. 59 (1979), where the activity, unilaterally, distributed a
questionnaire to employees concerning an activity-wide "flexitime"
approach to work days and soliciting their views regarding matters
within the scope of the collective bargaining relationship.
Judging this case "independently," as Laughlin requires, and
following the criteria there established, I cannot find an unlawful
bypass from the facts of record, for the reasons discussed above.
5. It is concluded that the General Counsel has failed to prove the
allegations of the Complaint, and that dismissal of the Complaint should
be ordered. In view of the above conclusions, it is unnecessary to
resolve additional issues raised by the parties.
Recommended Order
It is ordered that the Complaint in Case No. 9-CA-578 be, and it
hereby is, dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: November 30, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1A/ With respect to the relevance of who initiated a meeting in
determining whether a formal discussion has occurred, see also Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region, 9 FLRA 48 (1982).
/1/ All dates referenced herein are in 1980, unless otherwise
specified.
/2/ The pertinent provisions of Section 7116 are:
(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/ One case could not be found. It was named (Federal Railroad
Administration), at page 11 of the brief with a citation indicated as
being "supra." No other citation to this case could be found in the
brief.
/4/ But see also Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland, Case No. 9-CA-855,
OALJ-81-174, which departs from the decisions cited in paragraph (q),
supra. This decision involves a 10-minute meeting, called by a
supervisor of a typing pool, attended by four clerk-typists, and held in
the back of the office, where: the supervisor announced the elimination
of the typing pool and the reassignment of the clerk-typists to
individual claims authorizers, explained how the new operation would be
structured, and distributed a memorandum setting forth the changes; and
the employees merely listened. The point is made in the decision that
"to conclude that the announcement in the instant case constitutes a
'discussion between' (the supervisor) and her employees constituted a
strained interpretation of the Statute." See page 9 of the decision.
Nevertheless, it was so concluded because of several holdings of the
Assistant Secretary of Labor, under Executive Order 11491, and pursuant
to Section 7135 of the Statute, which makes such holdings binding until
superceded by the Statute, regulations or Authority decisions. In the
Assistant Secretary cases cited, however, the meetings each involved
several tiers of supervisors in attendance at the meeting; and the
supervisors were knowledgeable and prepared to discuss the subject
matter of the meetings, had the employees elected to ask any questions.
See Fort Wainwright, 3 A/SLMR at 295, 297 and HEW, SF, 8 A/SLMR at 1276,
1277.
/5/ The Council overturned the decision on the ground that the matter
discussed, termination of the probationary employees called to the
meeting because they were found sleeping on the job, did not concern
"grievances, personnel policies and practices, or other matters
affecting general working conditions of employees in the unit." 6 FLRC
at 1111. The case was remanded to the Assistant Secretary, whose
functions were subsequently transferred to the Authority under Section
304 of Reorganization Plan No. 2 of 1978. The Authority, based on the
Council's holding and "rationale," dismissed the complaint. See 1 FLRA
240, No. 32 (1979).
/6/ A petition to review this decision, as to an issue other than
whether the meetings involved were "formal discussion(s)," was denied by
the Authority. See 1 FLRA 137, No. 14.