18:0249(33)CA - SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA
[ v18 p249 ]
18:0249(33)CA
The decision of the Authority follows:
18 FLRA No. 33
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-30281
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 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
Judge's findings, conclusions /1/ and recommended Order.
The Judge concluded that the Respondent violated section 7116(a)(1)
and (8) of the Statute by failing to provide the Union with prior notice
and the opportunity to be represented at the meeting on February 25,
1983, between District Manager Wells and Lingelbach. In so concluding,
the Judge found that the meeting was "formal" in nature, and that the
subject matter of the meeting came within the meaning of section
7114(a)(2)(A) of the Statute as required. In a subsequently issued
decision, Bureau of Government Financial Operations, Headquarters, 15
FLRA No. 87 (1984), appeal docketed sub nom. National Treasury Employees
Union v. FLRA, No. 84-1493 (D.C. Cir. Oct. 1, 1984), the Authority
reiterated that in order for a union's right to be represented under
section 7114(a)(2)(A) to attach, "all elements set forth in that section
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." /2/
In finding that the February 25 meeting was "formal" in nature, the
Judge stated at page 5 of his Decision:
The formality of this discussion is established by the fact
that it was initiated by Wells, the district manager, was
conducted away from Lingelbach's worksite in Wells' office behind
closed doors, and Lingelbach's attendance was mandatory. See,
Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, 10 FLRA No. 24, 10
FLRA 115 (1982).
The Authority noted in Defense Logistics Agency, Defense Depot Tracy,
Tracy, California, 14 FLRA 475 (1984), that the factors set forth in the
case relied upon by the Judge are not exhaustive and that the totality
of facts and circumstances are used to determine the formality of a
meeting. In the instant case, the Authority concludes that, upon
balance, the meeting was "formal" in nature, noting specifically that
Wells was Lingelbach's fourth level supervisor and the manager for the
entire district, that the meeting was held in Wells' office, and,
notwithstanding the fact that the meeting was initiated by a phone call
rather than a written notice and that Wells stated that he wanted to
speak to Lingelbach as a "Dutch uncle," Lingelbach's attendance was
required. With regard to the final element, the Judge credited
Lingelbach's testimony that Wells brought up and talked about the
grievance which had been filed by Lingelbach. The Judge specifically
discredited Wells' denial that he brought up the subject. The Authority
concludes, in agreement with the Judge, that the meeting concerned a
grievance and thus satisfied the fourth element.
Accordingly, the Authority finds that the Respondent's failure to
provide the Union with prior notice and the opportunity to be
represented at a meeting which constituted a formal discussion of
matters within the meaning of section 7114(a)(2)(A) of the Statute was
violative of section 7116(a)(1) and (8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Social Security Administration, Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Interfering with, or discouraging, by implied threats or other
means, any employee from exercising the rights accorded by the Federal
Service Labor-Management Relations Statute to file and process
grievances under the negotiated grievance procedure freely and without
fear of penalty or reprisal.
(b) Failing to give the American Federation of Government Employees,
AFL-CIO, appropriate notice of and the opportunity to be represented at
formal discussions between employees in the bargaining unit and
representatives of the Activity concerning grievances.
(c) In any like or related manner interfering with, restraining, or
coercing its 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 effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Give the American Federation of Government Employees, AFL-CIO,
appropriate notice of and the opportunity to be represented at formal
discussions between employees in the bargaining unit and representatives
of the Activity concerning grievances.
(b) Post at its facilities at Spokane, Washington, 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
District Manager, or a designee, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including
bulletin boards and all other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
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 allegation that Respondent unlawfully
discriminated against employee Frank Lingelbach for engaging in
protected activity be, and it hereby is, dismissed.
Issued, Washington, D.C., May 24, 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 interfere with, or discourage, by implied threats or
other means, any employee from exercising the rights accorded by the
Federal Service Labor-Management Relations Statute to file and process
grievances under the negotiated grievance procedure freely and without
fear of penalty or reprisal.
WE WILL NOT fail to give the American Federation of Government
Employees, AFL-CIO, appropriate notice of and the opportunity to be
represented at formal discussions between employees in the bargaining
unit and representatives of the Activity concerning grievances.
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
Federal Service Labor-Management Relations Statute.
WE WILL give the American Federation of Government Employees,
AFL-CIO, appropriate notice of and the opportunity to be represented at
formal discussions between employees in the bargaining unit and
representatives of the Activity concerning grievances.
(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 questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region IX, whose
address is: 530 Bush Street, Room 542, San Francisco, California 94108,
and whose telephone number is: (415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Mr. Wilson Schuerholz
Michael Walsh, Esquire
For the Respondent
Ms. Mary O'Malley
For the Charging Party
Josanna Berkow, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER, Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Nine, Federal Labor Relations Authority,
San Francisco, California against the Social Security Administration,
Baltimore, Maryland (Respondent), based on an amended charge filed by
the American Federation of Government Employees, AFL-CIO (Charging Party
or Union). The complaint alleged, in substance, that Respondent
violated sections 7116(a)(1), (2), (5), and (8) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute).
The Complaint alleges that Respondent violated section 7116(a)(1) and
(2) of the Statute when it discriminatorily issued a February 17, 1983
Letter of Warning to unit employee Frank Lingelbach because he had filed
a grievance under the negotiated procedure, or enlisted the assistance
of the Union, activity protected by section 7102 of the Statute. The
Complaint further alleges that on February 25, 1983, Respondent, through
its Spokane district manager Bruce Wells, held a formal meeting within
the meaning of section 7114(a)(2)(A) with Lingelbach in violation of
section 7116(a)(1), (5), and (8) of the Statute. Finally, the
Complaint, as amended at the hearing, alleges that Respondent committed
two independent violations of section 7116(a)(1) of the Statute based on
statements made by Wells to Lingelbach during the course of the February
25th formal meeting.
Respondent admits the jurisdictional allegations relating to the
Respondent, Charging Party, and filing of the charges, but denies that
it has violated the Statute. Specifically, Respondent contends that the
February 17, 1983 letter was issued because Lingelbach's performance was
less than satisfactory concerning a specific case and that Union
considerations played no part in its decision. Respondent also contends
that the February 25th meeting was merely a counseling session and that
Wells did not make the statements alleged in the complaint.
A hearing was held in Spokane, Washington. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, /3/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
Frank Lingelbach has worked as a claims representative in
Respondent's district office in Spokane, Washington since March of 1982.
For five years prior to that time he held the same position in the
Coeur d'Alene branch office, a satellite of the Spokane district.
Lingelbach has worked for the agency in various positions for a total of
eleven years and has always received fully satisfactory to excellent
appraisals. In 1980, Lingelbach received a cash award for exemplary
work performance. District manager Wells considered Lingelbach an
excellent employee with supervisory potential. Operations supervisor
Premo and branch manager Aurora stated that Lingelbach exceeded the
minimum requirements to an exceptional degree in his ability to deal
with difficult claimants. Claims representatives are evaluated, inter
alia, on their ability to explain rights and alternatives to social
security claimants. Respondent's appraisal documents establish that
claims representatives are favorably evaluated for their concern in
protecting claimants' rights, looking out for claimants' interests, and
for their sensitivity to claimants' needs.
On January 26, 1983 Lingelbach filed a grievance under the negotiated
grievance procedure with his then supervisor, Jerry Phinney, concerning
his selection to the quality reviewer position in the Spokane district
office. He designated Donald Avery as his Union representative on the
grievance form. Phinney denied the grievance on January 28, 1983 with a
written rationale. The Union appealed the denial of Lingelbach's
grievance in the first week of February, 1983. The second step
submission to Wells included a request for an audit of the reviewer
position. Prior to Lingelbach's grievance, no employee had ever
questioned the grade of the reviewer position. Wells opposed a position
audit for this position. Wells denied the grievance on February 22,
1983. No meeting was held at this level. The grievance was then
elevated to the third stage where it was for the most part denied.
On or about February 7, 1983, District manager Wells received a
telephone call from the office of Senator James A. McClure of Idaho
requesting that Lingelbach attend a meeting in the Senator's office in
Coeur d'Alene regarding an overpayment case of Herschel Shamblin. Wells
talked with Lingelbach who wanted to attend the meeting even if he had
to take annual leave. Wells also reviewed a working file pertaining to
the case, discussed the case with other managers, and concluded that
Lingelbach had displayed a lack of objectivity in dealing with the
Shamblin case. On February 17, 1983 Wells issued Lingelbach a letter of
warning. The letter forbade Lingelbach from having any further dealings
with Shamblin and cautioned Lingelbach to represent the interests of the
Social Security Administration in his dealings with the public. The
letter had nothing to do with Lingelbach's grievance or because he went
to the Union for assistance. /4/
On February 23, 1983 Union representative Donald L. Avery wrote a
letter to Wells requesting the removal of Lingelbach's letter of warning
citing contractual provisions requiring progressive discipline. Wells
responded by memorandum dated February 25, 1983 in which he stated
Lingelbach had been orally warned about his performance on the Shamblin
case by the branch manager of Coeur d'Alene while he was working in that
office.
On February 25, 1983 Lingelbach wrote Wells requesting, inter alia, a
signed statement from the Coeur d'Alene branch manager, the opportunity
to review the Shamblin file, manual reference to job duties cited by
Wells, and that certain material be added to his file. /5/
After receiving the letter, Wells called Lingelbach on the phone on
the afternoon of February 25th and asked him to come into his office.
Upon entering the office, Lingelbach asked if he needed his Union
representative. Wells said, "No. Wells said he wanted to talk to
Lingelbach completely off-the-record, like a Dutch uncle, to give him
some friendly advice. Wells asked Lingelbach about his career goals
with the agency. Lingelbach replied that he eventually wanted to go
back to the central or regional office. Wells stated that Lingelbach
certainly had the ability and talent to advance, but was creating the
image of being reluctant to accept direction and of questioning agency
policy and procedure. Wells said that this was not conducive to
progressing up the ladder. Wells stated that he did not understand why
Lingelbach had filed a grievance. /6/ Lingelbach said he had filed the
grievance because he had not received the answers he felt he needed
concerning the reviewer position. Wells said he would deny it if it
ever came up, but Lingelbach was only hurting himself by filing a
grievance. Lingelbach replied that no matter what he felt about Wells'
beliefs or attitudes about things, he was still going to do the best job
of any claims representatives in the office.
Discussion, Conclusions, and Recommendations
A. Alleged Formal Discussion
Section 7114(a)(2)(A) assures an exclusive representative the right
to be represented at any formal discussion between one or more agency
representatives and one or more unit employees concerning any grievance.
Failure to provide prior notice and the opportunity to attend such
grievance discussions constitutes an unfair labor practice in violation
of section 7116(a)(1) and (8). Office of Program Operations, Field
Operations, Social Security Administration, San Francisco Region, 10
FLRA No. 36, 10 FLRA 172 (1982).
In the present case, the credible testimony establishes that Wells
discussed Lingelbach's grievance with him on February 25, 1983. The
formality of this discussion is established by the fact that it was
initiated by Wells, the district manager, was conducted away from
Lingelbach's worksite in Wells' office behind closed doors, and
Lingelbach's attendance was mandatory. See, Department of Health and
Human Services, Social Security Administration, Bureau of Field
Operations, 10 FLRA No. 24, 10 FLRA 115 (1982). Respondent's admitted
failure to provide the Union with prior notice and the opportunity to be
represented at this formal discussion violated section 7116(a)(1) and
(8) of the Statute. /7/
B. Alleged Threatening Statements
It is well established that the filing and processing of grievances
under collective bargaining agreements is protected activity within the
meaning of section 7102 of the Statute and that management statements
which tend to interfere with the exercise of such rights constitute
unlawful interference in violation of section 7116(a)(1) of the Statute.
Federal Election Commission, 6 FLRA No. 59, 6 FLRA 327 (1981); U.S.
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
Chicago, Illinois, 3 FLRA No. 116, 3 FLRA 723 (1980).
Wells' inquiry as to why Lingelbach had filed the grievance, and his
subsequent implied statement that the grievance would only hurt
Lingelbach's future career, would tend to chill Lingelbach in the
exercise of his statutory right to process his grievance under the
collective bargaining agreement. Accordingly, Wells' statements to
Lingelbach violated section 7116(a)(1) of the Statute, as alleged. See,
Veterans Administration Medical Center, Fayetteville, Arkansas, 5 FLRA
No. 76, 5 FLRA 581 (1981); Bureau of Alcohol, Tobacco and Firearms, 3
FLRA 723, supra.
C. Alleged Discrimination
I have credited the evidence relating to Respondent's explanation for
issuing the February 17, 1983 letter of warning to Lingelbach.
Accordingly, a preponderance of the evidence fails to establish a
violation of section 7116(a)(1) and (2) in this regard.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Social Security Administration,
Baltimore, Maryland shall:
1. Cease and desist from:
(a) Interfering with, or discouraging, by implied threats or
other means, any employee from exercising his rights accorded by
the Statute to file and process grievances under the negotiated
grievance procedure freely and without fear of penalty or
reprisal.
(b) Failing to give the American Federation of Government
Employees, AFL-CIO, appropriate notice and the opportunity to be
represented at formal discussions between employees in the
bargaining unit and representatives of the Activity concerning
grievances.
(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 effectuate the
purposes and policies of the Statute.
(a) Give the American Federation of Government Employees,
AFL-CIO, appropriate notice and the opportunity to be represented
at formal discussions between employees in the bargaining unit and
representatives of the Activity concerning grievances.
(b) Post at its facilities at the Spokane, Washington 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 District Manager and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The District Manager shall take reasonable
steps to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional
Director, Region Nine, Federal Labor Relations Authority, San
Francisco, California, 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 allegation that Respondent unlawfully
discriminated against employee Frank Lingelbach for engaging in
protected activity be, and it hereby is, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: July 20, 1984
Washington, DC
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
STATUTE We Hereby Notify Our Employees That:
WE WILL NOT interfere with, or discourage, by implied threats or
other means, any employee from exercising the rights accorded by the
Statute to file and process grievances under the negotiated grievance
procedure freely and without fear of penalty or reprisal.
WE WILL NOT fail to give the American Federation of Government
Employees, AFL-CIO, appropriate notice and the opportunity to be
represented at formal discussions between employees in the bargaining
unit and representatives of the Activity concerning grievances.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL give the American Federation of Government Employees,
AFL-CIO, appropriate notice and the opportunity to be represented at
formal discussions between employees in the bargaining unit and
representatives of the Activity concerning grievances.
(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 questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region Nine,
whose address is: 530 Bush Street, Room 542, San Francisco, CA 84108,
and whose telephone number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel excepts to the Judge's failure to find that
the letter of warning constituted a violation of section 7116(a)(1) and
(2) of the Statute. The Authority is unconvinced by the General
Counsel's arguments and adopts the Judge's conclusion. The Authority
also adopts the Judge's conclusion that Wells' statements to Lingelbach
violated section 7116(a)(1) of the Statute.
/2/ As there appears to be no dispute that the meeting was a
discussion between a representative of the agency and a bargaining unit
employee, the Authority concludes that elements 1 and 3 have been met.
/3/ The General Counsel's unopposed motion to correct the transcript
is granted; the transcript is hereby corrected as set forth therein.
/4/ A great deal of evidence was presented concerning whether
Lingelbach's actions in the Shamblin case were appropriate. Although
Lingelbach was admittedly an excellent employee and was sincere in his
actions in this unusual case, the record reflects a reasoned basis for
Respondent's conclusion that the displayed a lack of objectivity in
dealing with the Shamblin case. In my view, the justification for the
action was not shown to be pretextual or based on unlawful
considerations.
/5/ Lingelbach received no immediate answer, so he wrote Wells two
reminder memoranda dated March 4 and March 9, 1983 repeating his
February 25 requests. Wells finally replied by memorandum dated March
10, 1983, denying Lingelbach's requests.
/6/ Wells denied bringing up the subject of a grievance, and
contended that it was Lingelbach who brought up the grievance and the
Shamblin case at this point. He claimed he refused to discuss the
specifics of either, but merely reiterated at the point they were
mentioned that Lingelbach had the ability to go places in the
organization and he would encourage him to do that. I credit
Lingelbach's testimony on this point.
/7/ Based on the above outcome, which fully remedies the violation
found, it is unnecessary to decide whether such conduct also violated
section 7116(a)(5) of the Statute.