[ v17 p594 ]
The decision of the Authority follows:
17 FLRA No. 89 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 9-CA-855 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. Thereafter, the Respondent and the General Counsel filed exceptions to the Judge's Decision, and the General Counsel filed an opposition to the Respondent's exceptions. 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, except as modified herein. The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing certain changes in the work assignments of unit employees before bargaining in good faith with the Charging Party (AFGE) concerning the impact and implementation of those changes had been completed. Noting the absence of exceptions to this finding, the Authority agrees, for the reasons stated by the Judge. The record further shows that on January 30, 1981, one of the Respondent's supervisors, Dillon, held a meeting with four clerk-typists to announce the changes in work assignments, to distribute the Respondent's memorandum setting forth those changes and to instruct the employees how to proceed. The Judge found that in addition to its refusal to bargain, the Respondent also violated section 7116(a)(1), (5) and (8) of the Statute, /1/ as the meeting was a "formal discussion" within the meaning of section 7114(a)(2)(A) of the Statute, and the Respondent had not afforded AFGE prior notice and an opportunity to attend the meeting. /2/ We disagree. The Authority has recently held, in Bureau of Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984), that in order for the right of an exclusive representative to be represented at a formal discussion to attach, all elements set forth in section 7114(a)(2)(A) must be found to exist: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more employees in the unit or their representatives; (4) concerning any grievance or any personnel policy or practices or other general conditions of employment. In the circumstances of this case, without passing on the other elements, the record does not establish that the meeting was formal in nature within the meaning of section 7114(a)(2)(A) of the Statute. Thus, the meeting in question was held at the employees' workplace, was spontaneously called, was conducted alone by a first-level supervisor, was only about ten minutes in duration, and had no formal agenda. Accordingly, the Authority finds that as the General Counsel has failed to establish that the meeting in question was "formal" in nature within the meaning of the Statute, the Respondent cannot be found to have violated section 7114(a)(2)(A), and we shall dismiss the allegations of the complaint in this regard. See Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115 (1982); Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco Region, 10 FLRA 120 (1982); Veterans Administration Medical Center, Bath, New York and Veterans Administration, Washington, D.C., 12 FLRA No. 107 (1983). Further, the Authority specifically does not adopt the Judge's finding, at note 14 of his Decision, that the Respondent's actions in this matter constituted a clear bypass of the union in violation of section 7116(a)(5) of the Statute. In our view, announcing the changes in the context of the meeting in question did not constitute an attempt to deal directly with unit employees concerning their conditions of employment or to undermine the status of the Union as the exclusive representative of the employees. See Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984). With regard to the further allegation that the Respondent violated section 7116(a)(1) of the Statute by virtue of certain statements to a union representative, the Judge found that on February 2, 1981, supervisor Dillon approached Chappell at her desk and asked to speak with her privately. Instead, Chappell initiated a debate in the presence of other employees regarding her right as a union representative to have been informed of the meeting in question and to attend all meetings with employees, and Dillon responded by criticizing Chappell for not having waited until after the meeting to discuss the matter. The Judge found, and the Authority agrees, that the remarks of Dillon under the circumstances cannot reasonably be construed as tending to have had a chilling effect on Chappell or the employees who were present, and we shall dismiss the allegations of the complaint in this regard. /3/ See, e.g., Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA 766, 778 (1982). As a remedy for the section 7116(a)(1) and (5) violation found above, the Judge recommended that the Authority order the Respondent to cease and desist from "implementing changes in the working conditions of employees" and to "rescind the changes in employees' work assignments implemented February 2, 1981." The Authority concludes that such a status quo ante remedy is not warranted in the circumstances of this case. The record shows that the assignments were temporary in nature and had all been discontinued prior to the hearing in this case. Thus, in these circumstances when a status quo ante remedy would be meaningless, /4/ the Authority concludes that a prospective bargaining order should fully remedy the refusal to bargain violation found herein. ORDER Pursuant to section 7118 of the Statute and section 2423.29 of the Authority's Rules and Regulations, the Authority hereby orders that the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland shall: 1. Cease and desist from: (a) Implementing changes in the working conditions of its employees at its Field Support Unit Office without first affording the American Federation of Government Employees, AFL-CIO, the employees' exclusive bargaining representative, an opportunity to negotiate, upon request, with respect to the procedures which management will observe in implementing such changes and concerning appropriate arrangements for employees adversely affected thereby. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. (2) Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Post at its Field Support Unit Office, 620 Folsom Street, San Francisco, California, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Assistant Regional Commissioner for Field Operations, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the remaining allegations of the complaint in Case No. 9-CA-855 be, and they hereby are, dismissed. Issued, Washington, D.C., April 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT implement changes in the working conditions of our employees at the Field Support Unit Office without first affording the American Federation of Government Employees, AFL-CIO, the employees' exclusive bargaining representative, an opportunity to negotiate, upon request, with respect to the procedures which management will observe in implementing such changes and concerning appropriate arrangements for employees adversely affected thereby. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. (Activity) Dated: . . . By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region IX, Federal Labor Relations Authority, whose address is: 530 Bush Street, Suite 542, San Francisco, California, 94108, and whose telephone number is: (415) 556-8105. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 9-CA-855 Daniel H. Green For the Respondent Stephanie Arthur, Esq. For the General Counsel Vince Morgante For the Charging Party Before: RANDOLPH D. MASON, Administrative Law Judge Administrative Law Judge DECISION Statement Of The Case This case arises under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101, et seq., and was initiated by a complaint filed on April 6, 1981, by the Regional Director of the Federal Labor Relations Authority, Region IX, San Francisco, California, against the Department of Health and Human Services, Social Security Administration, Baltimore, Md., ("Respondent"). The complaint alleges that respondent violated sections 7116(a)(5) and (1) of the Statute by unilaterally implementing certain changes in work assignments before bargaining was completed. It also alleges a violation of Sec. 7116(a)(1), (5), and (8), arguing that these changes were announced during a "formal discussion" under Sec. 7114(a)(2)(A) and that the union was not afforded an opportunity to be present. Finally, the complaint alleges that respondent violated Sec. 7116(a)(1) when a supervisor later "reprimanded" a union representative in front of other employees for having entered the above meeting. Respondent denies all of the above allegations. A hearing was held in this matter at San Francisco, California, before the undersigned on June 16 and 17, 1981. All parties were represented and afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. The parties filed briefs which have been duly considered. Based on the entire record herein, including my observation of the witnesses and their demeanor, the exhibits, stipulations, and other relevant evidence adduced at the hearing, I make the following findings of fact, conclusions of law, and recommended order: Findings of Fact At all times material hereto, the American Federation of Government Employees, AFL-CIO ("union") was the exclusive representative of certain employees in Region IX, San Francisco, Bureau of District Office Operations, Social Security Administration, Department of Health and Human Services. The alleged violations occurred at respondent's Field Support Unit. The Refusal to Bargain During the period in question, Respondent's Field Support Unit processed SSI cases before and after they were heard by administrative law judges. About 15 GS-10 claims authorizers reviewed these cases for payment purposes. Other employees at the GS-5/6 level located folders prior to hearings. The clerical and mailroom duties were performed by GS-3/4 clerk typists. On or about January 19, 1981, one clerk typist and one part-time "work study student" at the Field Support Unit resigned, leaving a shortage in the clerical typing pool. On January 26, Isaac Williams, the respondent's manager, decided that since he could not rehire due to a hiring freeze, he should assign the mailroom clerk to the typing pool, and use the GS-10 claims authorizers to perform the mailroom duties. He also decided to eliminate the clerical "pool" by assigning each of three clerk typists (including the one who had previously worked in the mailroom) to a separate group of five named claims authorizers. /5/ Previously, the clericals had handled any work given to the typing pool by any of the 15 authorizers. On January 26, 1981, Williams sent his proposed changes to the union. The memorandum was entitled "Emergency Request for Consultation at Your Earliest Possible Convenience; Proposal for change-- effective date 02-06-81." (This was a typographical error; the effective date should have read "February 2, 1981.") After explaining the changes in the typing pool, the memorandum addressed the issue of mail preparation as follows: Claims examiners (authorizers) will be responsible for the preparation/distribution of the incoming/outgoing mail. The responsibility will be rotated on a weekly basis and claims examiners will not be expected to take their "fair share" (i.e. regular daily case assignments) during their tour of duty in the mail room. Preparation of the mail will not include lifting of mail bags or transport of the mail outside the mail room . . . . The memorandum included a schedule in which each claims authorizer was assigned mailroom responsibilities for a specified one-week period. The first authorizer was assigned for the "week of Feb. 02." The last of the 15 authorizers was assigned the week of May 11; thus the schedule covered a 15 week period. Under this plan each authorizer would work in the mailroom for one week every 15 weeks. On January 29, 1981, at 2:00 p.m. Williams met with union representatives Gayla Chappell and Kathy Rothero to negotiate the proposed changes. The union rejected the respondent's proposals and submitted a written list of seven counter-proposals. Essentially, the union proposed to retain the status of the typing pool as it presently existed and to eliminate the shortage in the pool by borrowing a clerical employee who had been assigned to the folder location section. The latter function would be performed by a work-study student. By eliminating the shortage in the typing pool in this manner, the mailroom function would continue to be performed by clerk-typist Joel Monkarsh, and the claims authorizers would not be required to work in the mailroom. Williams rejected all of the above counter-proposals. /6/ During the course of the January 29 negotiating session the union emphasized that the assignment of mailroom duties to claims authorizers and the elimination of the typing pool would have serious adverse effects on the employees. The union contended, inter alia, that the claims authorizers would be affected, in part, as follows: (1) the proposal would impede their ability to perform their regular claims work and thus result in lower appraisals and performance audits; (2) the performance of GS-3 mail duties could result in downgrading the GS-10 claims authorizer position; and (3) some of the authorizers were physically incapable (due to arthritis, etc.) of performing certain mailroom duties such as opening heavy mailbags, and others would find it difficult to stand and bend for several hours. Williams, on the other hand, took the position that the employees would not be adversely affected. With specific regard to the union's second point, he stated that he had spoken with the regional personnel department and had been told that his proposal would not cause a downgrading. The union stated that it would be necessary to have the latter assurance in writing to protect the authorizers. The union also stated that it would be necessary for the parties to devise methods to ensure that the performance audits and appraisals of authorizers took into consideration the fact that time had been spent away from their regular claims duties when they were in the mailroom. They were convinced the delays during the mailroom duties would adversely affect their regular case work. None of the above matters were resolved during the meeting. The union also made it clear that if respondent insisted on making the authorizers perform mailroom duties, appropriate arrangements would have to be negotiated for employees who were physically incapable. Although there was some discussion about having two authorizers work in the mailroom at the same time, this question was not resolved. The union also argued that the clerk-typists would be adversely affected by eliminating the typing pool. Under the pool concept, each typist had handled up to his or her capacity, whereas the new system might result in one or more typists accumulating a large backlog. Although no specific proposal was made at the time, the union indicated that a procedure would have to be worked out for the re-assignment of these backlogs. Williams evaded this discussion by changing the subject. When the union stated that such backlogs could have an adverse effect on appraisals and performance audits, Williams simply disagreed. After about 45 minutes of discussion, Williams indicated that the session was over. The union representatives told him that further negotiating would be necessary since many issues had not yet been resolved. Later that same day, Thursday, January 29, Williams told the supervisors for the authorizers and clerk-typists to inform the employees and implement the plan on Monday, February 2, 1981. Early the next morning, Friday, January 30, union representative Chappell told Williams that she wanted to continue the negotiations started on the previous day and she requested official time for that purpose. Williams responded that the negotiations were over and that he was going to implement the changes. /7/ Chappell protested that there were still a number of issues to discuss concerning both the substance and the impact of the proposals. Thereafter Chappell immediately prepared a memorandum to Williams in which she requested further bargaining and stated that at the January 29 meeting she had initiated bargaining on the substantive issues as well as the impact and implementation of Williams' proposed changes. She stated that she was available to meet with him that day as well as the following week. /8/ In accordance with customary procedure, she placed the memorandum in Williams' mailbox at about noon, but he did not notice it until he checked his mailbox later that afternoon when Chappell had already gone for the day. On Monday, February 2, Williams implemented his proposed changes without further negotiation. There was no pressing need to eliminate the typing pool and a brief delay in implementation of the remainder of his plan would not have been an undue burden on the office. After 15 weeks, the authorizers were no longer required to work in the mailroom. The Alleged "Formal Discussion" On Friday, January 30, Marge Dillon, the supervisor for the clerk-typists, called a meeting of four clerk-typists to announce the changes made by Williams, to instruct them how to proceed, and to distribute a memorandum setting forth these changes. /9/ Her comments included the elimination of the typing pool and assignment to individual claims authorizers. The memorandum stated that the changes would be effective on Monday, February 2, 1981. After announcing the above changes, Dillon gave one of the employees, Brenda Lowe, a special assignment which affected Lowe only. /10/ The meeting lasted about ten minutes; the employees did not ask any questions or make any comments. /11/ The above meeting was held in the back of the office. The union had not been invited to attend. When union representative Chappell (a claims authorizer) saw that the above meeting was in progress, she "walked into the meeting to observe what was going on." Dillon asked what Chappell wanted. Chappell stated: "I have a right to be here as a union representative. You can't hold meetings without the union present." Dillon explained that this was just a "training session" concerning the memorandum she had distributed to the clerical employees. She gave Chappell a copy of the memorandum and told her she could stay. Chappell then said: "It appears from this that you're discussing changes that I have not reached agreement on with the manager." Dillon responded that Williams had told her to inform the employees of the changes. At that point Chappell had to leave to answer a telephone call, and when she returned, the meeting was over. The February 2 Confrontation On February 2 Chappell was sitting at her desk when Dillon approached her and said she wanted to talk privately to Chappell outside the work area. Chappell immediately became defensive because she assumed that she was going to be disciplined. She asked what Dillon wanted to discuss. Dillon stated that it concerned "your disrupting /12/ the meeting on Friday." Chappell said she couldn't discuss it that day because her union representative was on leave. She added, in a loud voice however, that she had the right to attend all meetings with employees and that Dillon had committed an unfair labor practice by failing to invite the union to the meeting on January 30. Dillon raised her voice in response to this accusation and said that the meeting had only been a training session and that Chappell had no right to be there. She also said that Chappell should have waited to talk to Dillon after the meeting, and if Chappell did not like it she could file an unfair labor practice charge. Soon thereafter Chappell said she now wanted her union representative present during further discussion; Dillon agreed and the meeting was terminated since the representative was not available. Several employees were sitting nearby and heard the conversation. Conclusions of Law The Refusal to Bargain The first issue for consideration is whether respondent refused to complete bargaining with respect to the impact and implementation of its decision to have claims authorizers work in the mailroom and to eliminate the typing pool and then unilaterally implemented this decision. The General Counsel alleges that Williams, respondent's manager, violated Sec. 7116(a)(5) and (1) when he refused to bargain about these issues as required by sections 7106(b)(2) and (3) of the Statute. Respondent takes the position that on January 29, 1981, Williams fully discussed all issues raised by the union and either reached an agreement or came to an impasse on all issues. Thus respondent contends that Williams was fully justified when, on January 30 he refused to engage in further bargaining with the union. The facts of record do not support respondent's position. Although respondent did bargain about some issues raised by the union on January 29, respondent terminated the negotiations after 45 minutes without discussing certain matters raised by the union. At the conclusion of the meeting, the union reminded Williams that certain matters had been raised but not discussed, and that they would have to be negotiated at a later time. For example, during the course of the meeting the union had made it clear that if Williams insisted on having claims authorizers perform mailroom duties, methods would have to be devised under which time spent away from regular duties would be taken into consideration in performance audits and appraisals. Similar impact and implementation issues were raised with respect to the clerk-typists. On the morning of January 30, the union representative told Williams that she wanted to continue the negotiations started on the previous day. Williams said that the negotiations had been completed and that he was going to implement his plan. The union representative protested that there were still a number of issues to discuss concerning both the substance and the impact of the proposals. Later that day she repeated her request in a memorandum to Williams. Nevertheless, respondent implemented the plan on January 30 and February 2, 1981, without permitting further negotiations. Section 7103(a)(12) defines collective bargaining and requires that the parties meet at reasonable times and bargain in a good-faith effort to reach agreement with respect to conditions of employment. Here management arbitrarily decided that 45 minutes of bargaining in one meeting on January 29 fulfilled respondent's obligation under the Statute. When the union requested further bargaining the next day, respondent knew full well that the union had certain specific matters concerning appropriate arrangements for adversely affected employees and the manner of implementation of the changes about which it wanted to negotiate. Respondent's refusal to negotiate at this point, and the subsequent unilateral implementation, clearly constituted a violation of section 7116(a)(5) and (1) of the Statute. /13/ Formal Discussion The next issue for consideration is whether respondent violated section 7114(a)(2)(A) by failing to notify the union of its January 30 meeting with the clerk-typists and afford the union an opportunity to attend. That section 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 . . . . It is clear that the meeting in question was "formal" in nature and respondent does not seriously dispute this. A more troublesome question is whether the meeting constituted a "discussion" in view of the fact that supervisor Dillon was the only person who spoke. She merely announced the changes that were going to occur, i.e. the elimination of the typing pool and assignment to individual claims authorizers, and explained how the new operation would be structured. The employees merely listened to the announcement and instructions. The Statute, as applied to the instant case, requires a "discussion between" the supervisor and one or more employees. This phrase is commonly understood as a conversation in which two or more parties participate; it does not appropriately describe an announcement to a group. Furthermore, although the word "discussion" is sometimes used to describe the comments of an individual, it usually contemplates a debate or argument between two or more persons. Webster's New World Dictionary (2nd Ed. 1970). Thus to conclude that the announcement in the instant case constitutes a "discussion between" Dillon and her employees constitutes a strained interpretation of the Statute. However, section 10(e) of Executive Order 11491, the predecessor of section 7114(a)(2)(A), also required the opportunity for representation at "formal discussions between management and employees," and the Assistant Secretary did not require the participation of the employees in the "discussion." U.S. Department of the Army, Transportation Motor Pool, Fort Wainwright, Alaska, 3 A/SLMR 290, A/SLMR No. 278 (1973) (employee refused to participate); Department of Health, Education and Welfare, Region IX, San Francisco, California, 8 A/SLMR 1273, A/SLMR No. 1156 (1978). /14/ Nor did he require that such conversations constitute an attempt to bargain or negotiate with the employees for Sec. 10(e) to apply. Rocky Mountain Arsenal, Denver, Colorado, 7 A/SLMR 982 (1977). Under Sec. 7135 of the Statute, I am constrained to follow the Assistant Secretary's view since "decisions issued under Executive Order 11491 . . . shall remain in full force and effect . . . unless superceded" by the Statute, regulations, or Authority decisions. /15/ Thus, I must conclude that the January 30 meeting constituted a "formal discussion." /16/ Respondent contends that the subject matter of the meeting did not concern a "general condition of employment." /17/ I disagree. The elimination of the typing pool and the concomitant assignment of clerk-typists to individual claims authorizers affected the working conditions of these unit employees generally. This change affected all clerk-typists and claims authorizers to whom the former were assigned; respondent's argument that the discussion only involved minor operational changes peculiar to a few individual employees finds no support in the record. Since respondent failed to give the union notice and an opportunity to attend the entire discussion as required by Sec. 7114(a)(2)(A), I conclude and hold that respondent violated Sec. 7116(a)(8), (5) /18/ and (1) of the Statute. February 2 Confrontation The final issue for consideration is whether Dillon's remarks to union representative Chappell on February 2 tended to have a chilling effect on several unit employees in violation of Sec. 7116(a)(1). That section prohibits an agency from interfering with, restraining, or coercing any employee in the exercise by the employee of his protected statutory rights. Section 7102 gives each employee the right to form, join, or assist any labor organization. On January 30, although she had not been invited, Chappell entered a formal meeting being conducted by Dillon with employees. Chappell brought the meeting to a halt by complaining that she had not been invited and that the failure to do so constituted an unfair labor practice. Dillon gave Chappell a copy of the memorandum she had given the employees concerning the meeting and invited Chappell to stay. Chappell further complained that the meeting itself was improper since she had not finished bargaining on the changes that were being announced. Dillon responded that she had been told by the manager to hold this meeting. The following Monday, February 2, Dillon approached Chappell at her desk and, since other employees were present, asked to speak to her privately. Chappell insisted on knowing what Dillon wanted to discuss. Dillon said "it concerns your disrupting the meeting on Friday." Chappell then loudly contended that she had a right to attend all meetings with employees. Dillon argued that this was merely a "training session" and that Chappell had no right to attend; she further stated that Chappell should have waited to talk to her after the meeting and that if she disagreed she could file an unfair labor practice charge. Chappell's insubordinate actions at the January 30 meeting clearly constituted an improper means of asserting her statutory rights. Indeed, the union did have a right to be given an opportunity to attend under Sec. 7114(a)(2)(A), but the Statute does not give the union a license to cause disruption at such formal meetings with employees in a manner demeaning to a supervisor. Thus it is not surprising that Dillon wanted to inform Chappell that she disapproved of the disruption. Dillon chose not to say anything disparaging at the January 30 meeting and, in fact, invited Chappell to stay. On February 2 Dillon asked to speak privately with Chappell but the latter forced a public confrontation. Chappell raised her voice and argued she had a right to attend such meetings and Dillon took an opposing point of view. This was simply a legal argument which did not tend to have a chilling effect on Chappell or the employees who were listening. Moreover, Dillon's disapproval of Chappell's "disrupting" the meeting, in the context of this conversation, did not tend to have a chilling effect. The word "disrupt" was a mild choice of words to describe Chappell's behavior. Although that word tended to cast Chappell in a slightly negative light, in the same conversation Dillon showed respect for Chappell's statutory right to have her union representative present and urged her to follow the statutory unfair labor practice procedure. Under all these circumstances, Dillon's remarks would not have tended to cause the employees to refrain from exercising their statutory rights. Therefore I find no independent violation of Sec. 7116(a)(1). In view of the foregoing I recommend that the Authority adopt the following: ORDER Pursuant to 5 U.S.C. 7118(a)(7) and Sec. 2423.26 of the Final Rules and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby ORDERED that the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall: 1. Cease and desist from: (a) Implementing changes in the working conditions of employees at the Field Support Unit office prior to completing negotiations with the American Federation of Government Employees, the exclusive representative of employees at the Field Support Unit, concerning the impact and implementation of the change. (b) Holding or conducting formal discussions with bargaining unit employees concerning changes in general working conditions without first providing, by appropriate advance notice, the exclusive representative, American Federation of Government Employees, an opportunity to be represented at such formal discussions. (c) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to carry out the purposes and policies of the Federal Service Labor-Management Relations Statute; (a) Rescind the changes in employees' work assignments implemented February 2, 1981, and restore the assignments in effect prior thereto. (b) Meet and negotiate, upon request, with the Union regarding the impact and implementation of the proposed changes in working conditions of employees at the Field Support Unit to the extent consonant with the Statute and regulations. (c) Post at the Field Support Unit Office, 620 Folsom Street, San Francisco, California, copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Assistant Regional Commissioner for Field Operations, and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Said officer shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (d) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, 530 Bush Street, Suite 542, San Francisco, California 94108, in writing, within 60 days from the date of this order as to what steps have been taken to comply herewith. RANDOLPH D. MASON Administrative Law Judge Dated: September 28, 1981 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS We hereby notify our employees that: WE WILL NOT unilaterally implement changes in the working conditions of employees at the Field Support Unit, Social Security Administration, prior to completing our negotiations with American Federation of Government Employees, the exclusive representative of employees at the Field Support Unit, concerning the impact and implementation of the change. WE WILL NOT conduct formal discussions with employees at the Field Support Unit concerning changes in their general working conditions without first providing the American Federation of Government Employees, the exclusive representative, notice and the opportunity to be represented at such formal discussions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured by the Statute. WE WILL rescind the changes in employees' working conditions implemented February 2, 1981, and restore assignments in effect prior thereto until we have negotiated to the extent consonant with law and regulations with the American Federation of Government Employees regarding the impact and implementation of said changes. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region IX, the Federal Labor Relations Authority, whose address is: 530 Bush Street, Suite 542, San Francisco, California, 94108, and whose telephone number is: (415) 556-8105. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1), (5) and (8) provides: Sec. 7116. Unfair labor practices (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. /2/ Section 7114(a)(2)(A) provides: Sec. 7114. Representation rights and duties . . . . (a)(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(.) /3/ In so finding, however, we find it unnecessary to pass upon, and do not adopt, the Judge's characterization of Chappell's actions at the January 30th meeting. /4/ In view of this conclusion, the Authority finds it unnecessary to apply an analysis of the factors enumerated in Federal Correctional Institution, 8 FLRA 604 (1982). /5/ He wanted to eliminate the pool because he felt one clerical was not doing his share of the workload. /6/ However, he did ultimately accept, in part, two other proposals made by the union concerning the manner in which the "fair share" of new cases are received, "queried," and distributed by the clericals to the claims authorizers. /7/ Williams told Chappell that he had heard there might be a question about whether the authorizers wanted to work in pairs in the mailroom, and that he was still willing to discuss that single issue if the union desired to do so. He was willing to accommodate the employees, if possible, on this issue. /8/ At this point the union was still under the impression that Williams was not going to implement until Friday, February 6, due to the typographical error in Williams' January 26 memorandum. I reject Williams' testimony that he told the union on January 29 and 30 that he was going to implement his plan "on February 2." Williams was also unaware of this error, and assumed the union knew he would implement his changes on Monday, February 2, 1981. /9/ The supervisor of the claims authorizers did not call a meeting and merely announced the changes in a memorandum. /10/ Lowe worked in a different section away from the other clericals and was now given the additional duty of answering the telephone at the front desk for two hours a day. /11/ Chappell testified that during her absence from the meeting Lowe had asked for more details about her special assignment; however, she based her testimony on hearsay which she herself characterized as "pretty vague." I have relied upon the credible testimony of Marge Dillon that no questions were asked or comments made by employees. /12/ Chappell testified that Dillon used either the word "interrupt" (Tr. 47; 80) or "disrupt" (Tr. 81) whereas Dillon only recalled using the word "disrupt." /13/ Respondent could have negotiated on Friday, January 30 before the ultimate implementation on Monday, February 2; moreover, if it became necessary, the effective date could have been postponed for a brief period without unduly interfering with the efficient operation of the respondent activity. /14/ I recognize that the subject matter of the discussion in the after case would not meet the statutory requirement of a "general condition of employment", Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA 240 (1979), but the holding as to whether a "discussion" occurred has not been overruled. /15/ Although the question was not addressed, it appears that the Authority may have already accepted this view sub silentio in Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22 (1981) where an announcement was made and no employee participation was noted. /16/ In reaching this conclusion, I have been constrained to respectfully disagree with the result reached by my colleagues: National Archives, Case No. 3-CA-993, OALJ-81-139 (July 21, 1981) (Judge Dowd); Bureau of Field Operations, Social Security Administration, San Francisco, California, 9-CA-372, OALJ-81-145 (July 27, 1981) (Chief Judge Fenton); Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 6-CA-210, OALJ-81-121 (Judge Chaitovitz); U.S. Environmental Protection Agency, Case No. 3-CA-1538, OALJ-81-119 (Judge Sternburg). /17/ It is not alleged that any grievance, personnel policy or practice was involved. /18/ Since respondent's unilateral change constituted a clear bypass of the union, and therefore a refusal to bargain, Sec. 7116(a)(5) was violated; I need not decide whether a Sec. 7116(a)(5) violation could have been based solely on the Sec. 7114(a)(2)(A) violation. See, Department of Health, Education and Welfare, 5 FLRA No. 58 (1981).