16:1021(135)CA AFGE VS HHS, SSA -- 1984 FLRAdec CA
[ v16 p1021 ]
The decision of the Authority follows:
16 FLRA NO. 135
SOCIAL SECURITY ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS, NEW YORK REGION Respondent and DOUGLAS CHAUVIN, AN INDIVIDUAL Charging Party Case No. 2-CA-20342 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party/Union Case No. 2-CA-20345
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 consolidated complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision.
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, the Authority hereby adopts the [ v16 p1021 ] Judge's findings, conclusion that the meetings at issue were not "formal" in nature, and recommended Order.
The Authority has held that all elements of section 7114(a)(2)(A) must exist for a meeting to be a formal discussion at which an exclusive representative has a right to be given the opportunity to be represented. Bureau of Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984). As the Authority has concluded that the meetings herein were not formal in nature, it is unnecessary to address the other elements of section 7114(a)(2)(A). 1
Accordingly, the Authority shall dismiss the complaint in its entirety.
IT IS ORDERED that the consolidated complaint in Case Nos. 2-CA-20342 and 2-CA-20345 be, and it hereby is, dismissed in its entirety.
Issued, Washington, D.C., December 24, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v16 p1022 ]
SOCIAL SECURITY ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS, NEW YORK REGION, Respondent and DOUGLAS CHAUVIN, AN INDIVIDUAL, Charging Party Case No. 2-CA-20342 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging Party Case No. 2-CA-20345 Wilson Schuerholz, Representative for Respondent Alfred R. Johnson, Counsel for the General Counsel Federal Labor Relations Authority Kirk Bigelow, Representative for the Union Charging Party Charles Fahlikman, Representative for Douglas Chauvin, Charging Party Before: ISABELLE R. CAPPELLO Administrative Law Judge
[ v16 p1023 ]
This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat, 1192, 5 U.S.C. 7101 et seq. (Supp. V, 1981), commonly known as the Federal Service Labor - Management Relations Statute, and hereinafter referred to as the "Statute", and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge filed by Douglas Chauvin on April 1, 1982, and amended on June 18, 1982, the Regional Director of Region 2 of the Federal Labor Relations Authority (hereinafter, the "Authority") investigated and filed the complaint in Case No. 2-CA-20342.
Pursuant to a charge filed by the American Federation of Government Employees, AFL - CIO (hereinafter, the "Union" of "AFGE"), on April 5, 1982, the Regional Director of Region 2 investigated and filed the complaint in Case No. 2-CA-20345.
On August 26, 1982, the two cases were consolidated for hearing. The consolidated complaint alleges that Respondents 2 committed unfair labor practices, in violation of 5 U.S.C. 7116(a)(1), (5), and (8) of the Statute, 3 when its Equal Employment Opportunity Officer, Sandy McRae, [ v16 p1024 ] conducted informal equal employment opportunity ("EEO") complaint resolution meetings with bargaining unit employees. The complaint alleges that these meetings, were "formal discussions," within the meaning of 5 U.S.C. 7114(a)(2)(A), and were held in violation of the Statute because they were held without prior notice to the Union and affording it an opportunity to be represented. Respondent denies that the meetings occurred, and that any statutory violations were committed.
A hearing on the consolidated complaint was held on December 6, 1982, in New York City, NY. The parties appeared, adduced evidence, and examined witnesses. The General Counsel and Respondent submitted briefs dated January 4, 1983. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, and the briefs, I enter the following findings of fact and conclusions of law, and recommend the entry of the following order.
1. It is admitted that Respondent is and has been an agency within the meaning of 5 U.S.C. 7103(a)(3).
2. It is admitted that the Union Charging Party is now the certified exclusive representative of a consolidated nationwide unit of certain employees of Respondent, and a labor organization within the meaning of 5 U.S.C. 7103(a)(4). [ v16 p1025 ]
3. It is admitted that, at all times material herein, Respondent has recognized the New York - New Jersey Council of SSA District Office Locals, AFGE, as the delegated representative of AFGE for purpose of collective bargaining on behalf of certain employees of SSA in its Region II, and that Local 3369 of AFGE has been and is now an agent of the New York - New Jersey Council.
4. At all times material herein, Respondent and the New York - New Jersey Council operated under a collective bargaining agreement signed on January 15, 1976 and made effective on March 22, 1976. See Jt. 1. After passage of the Civil Service Reform Act of 1978, the parties amended the article on official time. See Jt. 2. Since June 1982, a new contract has been in effect. It is the position of Local 3369 that, under the 1976 contract, an employee could file an EEO complaint under the contractual grievance procedure. Respondent takes a contrary view. The issue was never arbitrated, because no EEO grievances were filed under grievance procedures of the 1976 contract. Respondent's view is based on Section 1 of Article XXXIV of Jt. 1, which provides:
The Union and the Employer agree that grievances and complaints should be settled in an orderly, prompt, and equitable manner which will maintain the self-respect of all parties involved. Every effort will be made by supervisors and officials of the Union to settle grievances at the lowest level of supervision. This procedure may not cover matters for which a statutory appeal procedure exists and so long as it does not otherwise conflict with statute or Executive Order 11491, as amended. All time limits stated within this procedure may be extended by mutual consent.
5. Douglas Chauvin, the Charging Party in Case No. 2-CA-20342, has been the EEO Coordinator for Local 3369 since June 1980. At all times material herein, Mr. Chauvin has been an SSA employee, at its Jamaica office. Since becoming EEO Coordinator, he has handled a couple of dozen EEO complaints. Around June 1982, he was also appointed the Sixth Vice - President for Grievances for Local 3369. As EEO Coordinator, he represents employees in all stages of the EEO complaint process, gives advice to employees and union officials about EEO matters, and trains union officials concerning such matters. As a general rule many EEO referrals come to him through the office of Local 3369. He has never been designated as a representative of Local 3369, at an EEO meeting. In his opinion, he acts as the personal representative of the complainant, at EEO meetings, and finds that the interest of the complainant and Local 3369 are sometimes in conflict at such meetings. Mr. Chauvin receives official time for EEO representation duties. For attendance at EEO meetings, he has not received any official time for union representational activities, under the negotiated agreement of the parties. [ v16 p1026 ]
6. There has been a continuing dispute between the parties as to how much time Mr. Chauvin is allowed for his EEO activities. The union position is that, as a union official, Mr. Chauvin should receive official time, under the collective bargaining agreement, for EEO matters. Respondents maintain that there are statutory provisions under Title VII of the Civil Service Reform Act for granting official time to perform EEO work. Respondent allows Mr. Chauvin a maximum of 8 hours, for the pre-investigative stage of an EEO complaint, and a maximum of 24 hours thereafter. These allowances are taken from government regulations on EEO matters which suggest them as "guidelines for reasonable amounts of time" (Tr. 103).
7. The EEO process here involved begins with a complainant seeking out an EEO Counselor. The Counselor receives information from the complainant and then talks to appropriate management officials. The Counselor advises the New York Regional Office of the Social Security Administration ("SSA") of the complaint. The Counselor reports to the complainant on management's response to the complaint, and may state that there was no information to support it. The Counselor then advises the complainant that he or she can file for an investigation, 15 days from receipt of a "final notice" (Tr. 133). At that point a complainant may write a request for an investigation to SSA's Office of Personnel Systems Integrity in Washington. If such a request is made, an investigator is assigned from Washington or Baltimore. The investigator comes into the Region and does an in-depth investigation, which may include the taking of sworn statements. The investigator prepares an EEO complaint file, which is shipped to the Region's EEO office. Copies of the file are sent to the complainant and management for comment.
At any stage during the entire process, the EEO Coordinator in the New York Regional Office can attempt an informal resolution of the complaint. Such an attempt has to be attempted before the file can be returned to SSA's office, in Baltimore, for a decision. The resolution attempt can, but need not be a face-to-face meeting. In most instances, the alleged discriminating official is not brought into the informal resolution meeting. Someone above that level participates for management.
If the informal resolution attempt is successful, a written statement of the details is prepared. If unsuccessful, a general summary of the attempt is prepared; and the file, with the summary and any comments and additional documentation from the complainant or the management representative, is sent to SSA, in Baltimore, for an agency decision. The agency issues a decision and then, within about two weeks or a month, if things work out well, the Department issues a decision.
At this stage, the complainant can request a hearing on the decision, or a decision on the file itself. This request is made to the [ v16 p1027 ] Department, which, in turn, requests the Equal Employment Opportunity Commission ("EEOC") to conduct a hearing or issue a ruling, whichever the complainant has requested. EEOC renders a decision which is given to the Department. The Department can amend, accept, or reject the decision. At this stage, the complainant can ask EEOC for a final decision. If the EEOC ruling is against the complainant, the complainant can then take the case into Federal court.
An EEO official of the SSA Regional Office in New York testified that the skeletal framework for the above process is provided in EEOC regulations, issued pursuant to public law, 5 and that, in addition, the process tracks departmental and agency regulations, and regional practices. See Tr. 138. The departmental and agency regulations were not adduced or cited. However, this testimony was not disputed at the hearing, or in the briefs filed by the parties, and, for purposes of this decision, is accepted as true.
8. All three of these meetings here at issue involved formal EEO complaints. The meetings were all held in a conference room away from the workplaces of the complainants. They were held for the sole purpose of reaching an informal settlement of the EEO complaints, all filed by employees represented by Local 3369. The meetings were held pursuant to specific regulations dealing with EEO complaints. Each meeting was called by Sandy McRae, who acted as the EEO Coordinator. Her title is "Civil Rights and Equal Opportunity Manager for the New York Region" (Tr. 132). Her role at the meetings was to bring the parties together and try to find some sort of common ground between them. She acted "(s)ort of like a facilitator" (Tr. 144). She tried to make sure that everyone had a chance to speak. None of the alleged discriminating officials attended the meetings. Management was represented at each by an official holding authority to settle the matter at issue. The purpose of each meeting was to discuss possible remedies, but not the merits of the matter. Such discussions took place. No confrontational situations were shown to have arisen at the meetings.
9. The President of Local 3369, since December 1979, has been John Riordan. As President, he is the primary representative of all employees, represented by the union, on grievances. Under the contract in effect at the time of the meetings, Mr. Riordan appointed the representatives to individual employees. On EEO complaints, employees choose their own representative, however. At the times here material, Mr. Riordan was the union official to receive notices of formal discussions from SSA. He received no prior notice of the meetings here at issue, from SSA. Mr. Chauvin did advise him, on March 26, of March 29 meetings. Mr. Riordan then appointed himself to represent [ v16 p1028 ] the union at these meetings, and so advised SSA's labor relations office. This office advised Mr. Riordan that he would not be allowed to attend, as the meetings were not formal discussions. Mr. Riordan then contacted the Assistant Equal Employment Officer for the New York Region, about his attending. She replied that she knew nothing about union representation at EEO informal resolution meetings, and that there was no EEO regulations concerning it. She affirmed that he would not be admitted to the meetings.
The March 2, 1982 meeting
10. On February 25, 1982, Jean - Louis Dumaine requested that an informal resolution meeting be arranged concerning an EEO complaint he had filed. His complaint alleged that high-quality increases were being awarded on the basis of sex at this office, the Avenue X District Office, where he worked as a claims representative. He asked that the meeting be attended by Mr. Seifer, the Deputy Assistant Regional Commissioner, Ms. McRae, Mr. Chauvin and himself. The next day, Ms. McRae called him to arrange a meeting. She suggested a date; he suggested the time. He told her he would check with Mr. Chauvin to determine whether the date and time were agreeable with him. Mr. Dumaine called Mr. Chauvin, who agreed to the date and time. Because Mr. Dumaine had informed Mr. Chauvin that he would be calling Ms. McRae back, Mr. Chauvin asked him to ask her for one hour of official time to prepare for the meeting. Ms. McRae denied the request for one hour on the ground that Mr. Dumaine and Mr. Chauvin had already used the allotted eight hours during a prior preparation session. At all times material herein, Mr. Umaine was the on-site representative for Local 3369 at the Brooklyn District Office of SSA. An on-site representative is the primary union job in a given office.
11. On March 2, 1982, the meeting was held. In attendance, besides Ms. McRae and Dumaine, were Mr. Chauvin and Joe Rosenberg. Mr. Rosenberg was he Acting Manager of the Claims Review Input Section and, for purpose of the meeting, was taking the place of Mr. Seifer and acting with his full authority. The meeting lasted for over an hour.
12. Mr. Chauvin was contacted by Mr. Dumaine upon being referred to him by an official of Local 3369, who called Mr. Chauvin "an individual who handled the processing and preparation of EEO complaints for the Local" (Tr. 112). Mr. Dumaine signed a form authorizing Mr. Chauvin to act as his representative. At a meeting with an EEO Counselor concerning the complaint, Mr. Chauvin was introduced as the representative of Mr. Dumaine.
13. The basic remedy sought by Mr. Dumaine was a high-quality award. He also sought information concerning what criteria were used for determining what individuals would have to do, in order to quality for such an award. He also asked that no information regarding his complaint [ v16 p1029 ] be disclosed by SSA to any other possible employer. At the March 2 meeting, these remedies were discussed. At the meeting, Mr. Rosenberg asked and answered questions about the remedies of Mr. Dumaine. No resolution of the complaint was effectuated at the meeting.
14. On March 8, 1982, Mr. Chauvin wrote a letter to Ms. McRae in which he asked her if she had notified Local 3369 about the March 2 meeting.
15. On March 16, 1982, Peter DiSturco replied to Mr. Chauvin's March 8 Letter. Mr. DiSturco is the SSA Regional Commissioner. Mr. DiSturco stated:
A meeting to attempt to resolve an EEO complaint is an established part of the EEO process and is separate and distinct from the labor relations process. Under EEO procedures we are not required to advise the Union (or a Local office) when we meet to attempt an informal resolution. We are only required to notify a management representative and the complainant's representative; unless the complainant specifies to the contrary. This procedures is in keeping with our policy to issue the confidentiality of individuals utilizing the EEO process.
See GC 3.
The first meeting on March 29, 1982
16. Prior to this meeting, Ms. McRae contacted Mr. Chauvin to arrange a convenient time and place to hold it.
17. On March 29, 1982, the first of two EEO meetings were held. In attendance were the EEO complainant, Carmen Zavala; her chosen representative, Mr. Chauvin; Ms. McRae; and John J. Moorehead, Jr., the Area Director for SSA offices in Manhattan, Staten Island, Brooklyn, Bronx, Westchester, and part of Rockland County. The meeting lasted for over an hour. Ms. Zavala's EEO complaint had already gone through the informal process with the EEO Counselor, an investigation, and a report issuance which had been received. Ms. McRae arranged for the meeting after it became apparent to her that management might be willing to do something about the complaint.
18. Ms. Zavala sought items of relief which Mr. Moorehead could grant. Ms. Zavala was then working in the Downtown District Office and her complaint alleged problems with her supervisor. The discussion at the meeting explored various terms for resolving the matter. Mr. Moore head asked questions of Ms. Zavala. The discussion did not center on any [ v16 p1030 ] employee other than Ms. Zavala. A resolution was not reached at the meeting. Ms. Zavala and Mr. Chauvin did make some proposals, including a transfer. The meeting concluded with them agreeing to put the proposals in writing and submitting them for consideration by management. The primary relief sought by Ms. Zavala was a transfer.
19. The Zavala EEO complaint was ultimately settled by the signing of a document, on April 26, 1982. The remedies agreed to were a purging of certain documents from the personnel file of Ms. Zavala; her transfer to another District Office; an agency commitment not to penalize her when considering her requests for transfers, promotions, or other terms or conditions of employment; an agency commitment not to disseminate the facts and circumstances which led to the filing of this charge to any other employer or potential employer, or to any parties other than those who could demonstrate a legitimate need to know this information and a similar non-communication commitment from Ms. Zavala and Mr. Chauvin.
20. Transfers to other offices are sought by employees through "a 4100 procedure" (Tr. 128). It is possible that some other employee may have wanted the transfer given to Ms. Zavala. However, such transfers happen quite often, as the offices supervised by Mr. Moorehead are "constantly in need of people" (Tr. 129).
The second meeting on March 29, 1982
21. Prior to this meeting, Ms. McRae contacted Mr. Chauvin to arrange a convenient time and place to hold it.
22. Present at this meeting were the EEO complainant, Mr. Chauvin; his representative, chosen by Mr. Chauvin and not by the union, Joel Sneck, who also happened to be the union on-site representative at the Williamsburg office and a shop steward at the Bushwick office; the District Manager of the Freeport office, Richard Robbins; and the EEO officer, Ms. McRae. The substance of Mr. Chauvin's complaint was alleged discrimination on the basis of national origin and reprisal. The meeting lasted for less than 15 minutes, according to Mr. Chauvin, and two or three hours, according to Ms. McRae. Mr. Chauvin seemed surer of the time than Ms. McRae, and so I credit him as to the length of the meeting. During the meeting, there was some interchange amongst the attendees. Mr. Robbins had the authority to resolve the complaints of Mr. Chauvin. There was no resolution at the meeting, however.
The case of the General Counsel rests upon the Authority's decision in IRS Fresno Center, 7 FLRA No. 54, 7 FLRA 371 (1981) (hereinafter, the "IRS" case). See GCBr 3, 9, 13, and 16. In that case, the Authority held, inter alia, that a meeting held in conjunction with an EEO complaint, and whose purpose was an informal resolution of that [ v16 p1031 ] complaint, was a "formal discussion" within the meaning of 5 U.S.C. 7114(a)(2)(A). In that case, IRS asserted that, "to hold a meeting such as here involved is 'always a formal discussion,' which entitles the union as a matter of course to an opportunity to be represented, directly conflicts with Equal Employment Opportunity Commission regulations and the Privacy Act" (7 FLRA at 376, fn. 9). In response to that assertion, the Authority limited its holding "only" to "the specific circumstances of the (IRS) case" (ibid).
On the basis of the different "specific circumstances" of the instant case, Respondents urges that a different result is warranted. See RBr 7. These differences are marked. In IRS, the management official involved in the merits of the EEO matter (the branch chief of the section where the complainant was being assigned at a grade level she regarded as sex-based) "instructed" to her attend the meeting (7 FLRA at 384). He also "chaired" the meeting (7 FLRA at 385). At the meeting, he had a confrontation with the complainant's representative over the representative taking too active a part in the meeting. He discussed the merits of the case with the complainant, and asked the complainant a number of questions about it. Although an EEO Officer and an EEO Counselor were present, they assumed passive roles; and one requested the branch chief to chair the meeting. See 7 FLRA at 385.
In contrast, in the instant case, the EEO official arranged, conducted, and controlled the meetings in accordance with EEOC, departmental, and agency regulations applicable to EEO complaints. She acted as a "facilitator," made sure that everyone had a change to speak, and tried to find a common ground between the representatives of management and the complainant. Attendance by the EEO complainants was not shown to be mandatory. Indeed, at least one of the complainants requested that the meeting be arranged. See finding 10, supra. The merits of the complaints were not discussed - only possible remedies that might be acceptable to both parties. No confrontational situations were shown to have arisen at the meetings.
In two companion cases, the Authority has recently articulated the criteria to be considered and weighed in determining whether a "formal discussion", in the statutory sense, has been held. See Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24, 10 FLRA 115, 118 (1982) and 10 FLRA No. 25, 10 FLRA 120, 124 (1982) (hereinafter, the "SSA" cases). These criteria are:
(1) whether the individual who held the discussion is merely a first-level supervisor or is higher in the management hierarchy; (2) whether any other management representatives attended; (3) where the individual meetings took place (i.e., in the supervisor's office, [ v16 p1032 ] at each employee's desk, or elsewhere); (4) how long the meeting lasted; (5) how the meetings were called (i.e., with formal advance written notice or more spontaneously and informally); (6) whether a formal agenda was established for the meetings; (7) whether each employee's attendance was mandatory; or (8) the manner in which the meetings were conducted (i.e., whether the employee's identity and comments were noted and transcribed).
These criteria apply as follows to the instant case.
1. The individual who held the discussions was not a supervisor of the employees, either first level, or higher. She occupied a special role, mandated by statute and EEOC regulations to carry out the equal employment opportunity programs of Federal agencies and departments. The Civil Rights Act of 1972, 86 Stat. 103, 42 U.S.C. 2000e - 16, prohibits discriminatory practices in the Federal Government; grants enforcement Authority to EEOC; requires EEOC to issue rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities; and requires departments and agencies to comply with such. See 42 U.S.C. 2000 e-16(b). In its regulations, EEOC set up the framework under which the meetings here at issue were held. See 29 CFR 1613.217, providing that "(t)he agency shall provide an opportunity for adjustment of the complaint on an informal basis after the complainant has reviewed the investigative file." In its regulations, EEOC requires agencies to designate a Director of Equal Employment Opportunity and other persons to assist the head of agency to provide, inter alia, for the "prompt, fair, and impartial consideration and disposition of complaints involving issues of discrimination on grounds of race, color, religion, sex, or national origin." See 29 CFR 1613.203(b) and 204(c). This was the role played by the person who held the meetings here at issue. While she was appointed to her job by management, she did not act as a partisan representative for management, at the meetings.
2. One person representing management attended each meeting. At each meeting, he held authority to settle the complaints, but could not force settlement upon the complaining employees, and did not discuss the merits of the complaints.
3. The meetings were held in conference rooms, away from the worksites of the employees.
4. The meetings were apparently sufficiently long to explore the settlement possibilities of the complaints. [ v16 p1033 ]
5. The meetings were arranged, in advance, to accommodate all the participants, by the Equal Employment Coordinator.
6. The agenda, at each meeting, was a predetermined one - to try to settle the complaints.
7. Attendance of the employee was not mandatory. Indeed, one meeting was held at the request of the employee.
8. As the "manner" in which the meetings were conducted, they were not shown to be confrontational. The alleged discriminating official were not even present. There was no evidence that notes or transcriptions were made. Of course, the identity of the employees was known to management. The presiding official saw to it that everyone had a chance to speak and tried to bring the parties together in seeking out a mutually agreeable remedy. No effort was shown to force any party to do anything.
The Authority, in the SSA cases, did not indicate how much weight should be given to each of the factors to be considered. In this case, I place the most importance upon factors 1, 7 and 8. Number 1, the presiding official acted as a "facilitator", seeking to assist the parties in resolving the complaints, and not acting in a partisan manner toward either. She did not act as a supervisor, but rather performed the role assigned to her under the Civil Rights Act and regulations of the EEOC. Number 7, the employees did not have to attend. Number 8, the meetings were conducted in a fair manner, with no one forced to accept any offer made, and with no confrontations erupting.
Based upon these factors, I conclude that these EEO complaint resolution meetings do not belong within the statutory framework of "formal discussion(s) between one or more representatives of the agency and one or more employees." Rather, they fall within the caveat footnoted by the Authority, in the IRS case, that not every meeting held in conjunction with the processing of a complaint of employment discrimination is a "formal discussion," within the meaning of 5 U.S.C. 7114(a)(2)(A). See 7 FLRA at 376, fn. 9.
Judge Garvin Lee Oliver recently reached a similar conclusion i