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17:0385(62)CA - HHS, SSA and SSA Field Operations, New York Region and AFGE -- 1985 FLRAdec CA

[ v17 p385 ]
The decision of the Authority follows:

 17 FLRA No. 62
 Charging Party
                                            Case No. 2-CA-30220
                            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.  Thereafter, the
 Charging Party filed exceptions to the Judge's decision.  /1A/
    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
 Judge's findings, conclusions and recommended Order.
    IT IS ORDERED that the complaint in Case No. 2-CA-30220 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., April 4, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                                       Case No.: 2-CA-30220
 -------------------- ALJ$ DECISION FOLLOWS --------------------
   Daniel H. Green,
       Representative for Respondent
    Robert J. Fabii,
       Counsel for the General Counsel, Federal Labor Relations Authority
    Cecelia McCarthy,
       Representative for the Charging Party/Union
       Administrative Law Judge
    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
    On January 21, 1983, the Charging Party/Union filed a charge of an
 unfair labor practice against Respondent.  The charge was amended on
 June 27, 1983.  The General Counsel of the Federal Labor Relations
 Authority ("Authority") investigated and, on June 30, 1983, served the
 complaint initiating this proceeding.  On July 19, 1983, an amended
 complaint was served.
    The complaint alleges that, on or about December 17, 1982, an agent
 of Respondent conducted a staff meeting with all part-time permanent
 employees to discuss general conditions of employment in the Baychester,
 Bronx, New York Branch Office, without affording the exclusive
 representative proper notice or the opportunity to be present in its
 institutional capacity, in violation of Section 7116(a)(1), (5) and (8)
 of the Statute.  /1/
    Respondent denies the charges.
    On August 17, 1983, a hearing was held in New York City.  The parties
 appeared, adduced evidence, and examined witnesses.  Briefing time was
 extended until October 28, without objection and upon a showing of good
 cause by Respondent.  The General Counsel filed a brief on October 27.
 Respondent filed its brief on October 28.  Based upon the record made in
 this proceeding, my observation of the demeanor of the witnesses, and
 the briefs, I make the following findings of fact and conclusions of law
 and recommend entry of the following order.
                           Findings of Fact /2/
    1.  It is admitted that, at all times material herein, the Charging
 Party has been and is a labor organization, within the meaning of the
 Statute, and that it has been and is now the certified exclusive
 representative of a consolidated unit of certain employees of
 Respondent, including all employees employed in the District and Branch
 Offices of the Social Security Administration ("SSA") in the States of
 New York and New Jersey, with certain exceptions not here relevant.
    2.  It is admitted that, at all times material herein, the National
 Council of SSA Field Operations Locals ("Council") has been delegated
 authority, by the Charging Party, to act as its representative for the
 purpose of collective bargaining on behalf of unit employees in SSA
 Field Operations, including SSA's Baychester, Bronx, New York Branch
 Office, and that Local 3369 has acted as the agent of the Council and
 been recognized by Respondent as such, at the Baychester Office.
    3.  It is admitted that, at all times material herein, SSA has been
 and is an agency within the meaning of the Statute, and that SSA Field
 Operations, New York Region has been and is a constituent entity within
 the Department of Health and Human Services ("DHHS"), SSA.
    4.  It is conceded that a meeting held on or about December 17, 1982,
 was a "formal discussion" within the meaning of 5 U.S.C. 7114(a)(2)(A).
 See TR 4.  The parties agree that the sole issue is whether specific
 notice of the meeting, and an opportunity to attend it, was accorded the
 Union.  See TR 5-7.
    5.  For about four years, Philip Kalmis has been the representative
 of Local 3369 at the Baychester Branch Office, where he has been
 employed as a claims representative for six years.  The alternate
 representative is Robin Woodley.  Ms. Woodley is a part-time permanent
 clerical who works for Mr. Kalmis, and whose desk is located beside his.
  As the representative for Local 3369, Mr. Kalmis is the person
 authorized to be given notice of formal meetings to be held with
 employees, and to discuss labor management relations on behalf of the
 employees and the Union.  As the alternate representative, Ms. Woodley
 holds the same authority, in the absence of Mr. Kalmis.  It is "assumed"
 that Ms. Woodley acts for Mr. Kalmis when he is "not at work, or not
 available," or is "(a)bsent from the room" (TR 83).
    6.  Golden Webb has been the branch manager of the Baychester Office
 since July 1980 and meets, on occasion, with Mr. Kalmis acting as the
 representative of Local 3369.
    7.  On December 13, 1982, /3/ Mr. Kalmis requested official time to
 meet with Mr. Webb to discuss some issues.  Mr. Kalmis did so by
 presenting an official time form to his immediate supervisor, Daniel
 Heading, who approved it on December 13.  See GC 2.  The meeting was
 originally requested for December 14 or 15, and was later changed to
 Thursday, December 16.
                          The December 16 Meeting
    8a.  From 4 to 5 p.m., on Thursday, December 16, Mr. Kalmis and Mr.
 Webb met and discussed the union's agenda items mentioned on the
 official time form.  These items were:  sanitized appraisals being
 broken into groups of Title 2 and Title 16 claims representatives;
 awards;  union presence at employee orientation sessions;  and a
 conversion chart for use in determining points for promotion.
    8b.  Mr. Webb had not presented any agenda items, in advance, for
 discussion at the December 16 meeting;  but he did bring up one at the
 meeting based upon his receipt, at about 1 p.m. on that day, of a
 teletype from the New York Regional Office.  The teletype called for an
 immediate freeze affecting part-time employees in the office, to be made
 effective on Monday, December 20.  The teletype required Mr. Webb to
 disallow any work over established tours of duty and any increase in
 hours of duty.  See GC 3.  A copy of the teletype was placed in Mr.
 Kalmis's in-basket immediately upon receipt, but was not observed by Mr.
 Kalmis prior to the 4 p.m. meeting.
    8c.  Mr. Webb was positive that the teletype was the first item
 discussed "because of the importance of it and the effect it was going
 to have on the part-time permanent employees" (TR 98).  Mr. Kalmis was
 uncertain as to the order of discussion.  In view of the immediacy of
 the problem presented by the teletype, it is logical that it would be
 discussed first.  Accordingly, I find that it was the first item
    8d.  The discussion of the teletype lasted for at least 20 to 25
 minutes, during which time Mr. Kalmis expressed his concern about how
 the teletype would impact upon the employees.  The testimony of Mr. Webb
 and Mr. Kalmis varied, in several respects, as to what transpired during
 this discussion.  One variation is the subject of another unfair labor
 practice charge, and concerns what was said about future negotiations
 over the change represented by the teletype.  As to the charge here at
 issue, Mr. Webb testified that he advised Mr. Kalmis that he would meet
 with the part-time permanent employees the next morning, Friday,
 December 17, to advise them of the freeze, and to solicit volunteers for
 changing hours in order for all office units to be covered by clerical
 help during office hours.  (Most of the office clerical force was in a
 part-time permanent status and had originally been hired to work 32
 hours a week, but had been allowed to work a full 40-hour week.) Mr.
 Webb testified that he advised Mr. Kalmis that he (Mr. Kalmis) had a
 right to be present at the meeting, and that Mr. Kalmis indicated that
 he would be present by nodding his head, in response.  Mr. Webb gave his
 testimony in a careful, honest, and positive manner.
    8e.  Mr. Kalmis testified that Mr. Webb did not give him notice that
 there would be a meeting the next morning and that he learned about it
 only after it had occurred, from one of the clericals.  While Mr. Kalmis
 appeared to be an honest witness, he also seemed to be an excitable and
 somewhat garrulous person who might have missed some points Mr. Webb was
 making at the December 16 meeting.  After all, Mr. Kalmis had asked for
 the meeting in the first place, had a full agenda of items to discuss,
 and was probably distracted by the unexpected need to engage in a
 lengthy discussion about the part-time permanent employees.  The fact
 that Mr. Webb observed Mr. Kalmis nodding his head, when told about the
 meeting which was to be held the next morning, may not have been
 acknowledgement of the notice at all.
    8f.  Mr. Kalmis admitted that Mr. Webb did give him prior notice of
 formal discussions, in "(m)ost situations" (TR 51).
    8g.  Based upon findings 8d, e and f, I find that Mr. Webb, at the
 December 16 meeting, did give Mr. Kalmis notice of the meeting to be
 held the next morning with the part-time permanent employees;  /4/ but
 that Mr. Kalmis did not hear it.
                          The December 17 Meeting
    9a.  On the morning of December 17, Mr. Webb notified five part-time
 permanent employees of a meeting to be held immediately.  At 8:35 a.m.
 at the latest, Mr. Webb stopped by the desk of Ms. Woodley and told her
 that "we were having a meeting and her presence was wanted" (TR 125).
 Mr. Webb observed Mr. Kalmis sitting at his desk, at the time, and was
 of the opinion that Mr. Kalmis "noticed (him) when (he) walked by" (TR
 126).  /5/ Mr. Webb did not tell Ms. Woodley the purpose of the meeting.
  She attended it as a part-time permanent employee, and not in her
 capacity as the alternate union representative.  She was the only one to
 volunteer to change her hours of work.
    9b.  The December 17 meeting began in the multi-purpose room no later
 than 8:45 a.m. and ended shortly after 9 a.m.  /6/ It is customary for
 all staff meetings to begin at 8:30 a.m. and end by 9 a.m. when claimant
 interviewing begins.  This half-hour period is the "reading period" for
 employees (TR 116).  It is also customary for all staff meetings to be
 held in the multi-purpose room, which is located adjacent to the area
 where Mr. Kalmis works and a short distance from his desk.  See R 1 and
 TR 119-129.
    9c.  Mr. Kalmis did not attend the "formal discussion" on December
 17.  Mr. Webb conceded that Mr. Kalmis usually attended formal
 discussions of which he had notice;  but explained that Mr. Webb made
 his own decision to attend or not attend.  See TR 135-138.  The only
 instance given by Mr. Webb of nonattendance was when Mr. Kalmis attended
 the first meeting on appraisals, but chose not to attend subsequent
 meetings "on the same issue" (TR 138).
                        Discussion and Conclusions
    The parties basically agree that the outcome of this case depends
 upon a credibility determination -- whether Respondent's agent gave the
 Union's agent prior notice of the formal discussion held on December 17.
  See, e.g., TR 6 and 60.  This issue has been resolved in favor of
 Respondent.  See finding 8g, supra.  While Respondent's agent did not
 specifically notify the Union's agent of the place and time of the
 meeting, this was not fatal, on this record, which shows that it was the
 practice, in the Baychester Office, to hold staff meetings during the
 morning reading period, before claimant interviewing begins, and in the
 multi-purpose room.  See finding 9b, supra.  The meeting here at issue
 was held at the customary time in the customary place.  The Union's
 agent, who has worked in the Baychester Office for six years, would know
 of this practice.
    In view of this conclusion, it is unnecessary to resolve other issues
 raised by the parties.
                  Ultimate Findings and Recommended Order
    The General Counsel has not demonstrated, by a preponderance of the
 evidence, /7/ that the alleged violations of the Statute occurred.
    Accordingly, it is hereby ORDERED, that the complaint be, and it
 hereby is dismissed.
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 Dated:  November 8, 1983
         Washington, DC
 --------------- FOOTNOTES$ ---------------
    /1A/ The Charging Party excepted to certain credibility findings made
 by the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
    /1/ 5 U.S.C. 7116 provides, in pertinent part, that:
          (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;  . . . or
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
    One such provision is found at 5 U.S.C. 7114(a), which provides in
 pertinent part, that:
          (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.  . . .
    /2/ The following abbreviations will be used.  "GC" refers to
 exhibits of the General Counsel.  "R" refers to the exhibits of
 Respondent.  "Jt" refers to the joint exhibits of the parties.
 Multipage exhibits will be referenced by exhibit number, followed by
 page number.  "GCBr" refers to the brief of the General Counsel.  "RBr"
 refers to the brief of Respondent.  "TR" refers to the transcript.
    /3/ All dates hereinafter mentioned are in 1982, unless otherwise
    /4/ Both Mr. Webb and Mr. Kalmis made notes of the December 16
 meeting.  Those of Mr. Webb indicated that he gave such notice.  Those
 of Mr. Kalmis mention no notice being given.  Because of their
 self-serving nature, I have not relied on either set of notes in
 reaching this finding.
    /5/ Mr. Webb conceded that Mr. Kalmis did not acknowledge his
 presence in any way.  Mr. Kalmis could not specifically recall seeing
 Mr. Webb, at this time, but did not deny that he may have.  Mr. Kalmis
 explained that he sees Mr. Webb every morning, as they occupy a small
 office of which Mr. Webb is its manager.
    /6/ Mr. Webb so testified.  Ms. Woodley testified only that the
 meeting was held in the morning of December 17.  Mr. Kalmis testified
 that he thought the meeting was held at 10:30, but based his testimony
 on second-hand knowledge.  I find that Mr. Webb was the more credible
 witness, on this point.
    /7/ This is the statutory burden of proof.  See 5 U.S.C. 7118(a)(7).