19:0415(56)CA - HHS, SSA and AFGE -- 1985 FLRAdec CA

 19 FLRA No. 56
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-30336
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts, accompanying exhibits, and the parties'
 contentions, the Authority finds:
 
    The complaint alleges that the Respondent bypassed the exclusive
 representative in violation of section 7116(a)(1) and (5) of the Federal
 Service Labor-Management Relations Statute (the Statute) /1/ by
 distributing a memorandum to bargaining unit employees soliciting
 suggestions with respect to improvements in their conditions of
 employment and by holding a "Town Hall" meeting on January 21, 1983,
 with said bargaining unit employees at which their views and suggestions
 were solicited as to matters related to their conditions of employment.
 
    The stipulated record reflects that on January 17, 1982, the
 Respondent provided the American Federation of Government Employees,
 AFL-CIO (Union), the exclusive representative of the Respondent's
 employees, with a copy of a memorandum addressed to all employees of the
 Office of Disability Operations which advised said employees that a
 "Town Hall" meeting would be held on January 21, 1983.  A cover letter
 provided with the memorandum invited the Union to have an observer at
 the meeting.  The memorandum, which was not distributed until January
 20, 1983, also informed the employees that the Respondent wished them to
 submit their suggestions or initiatives as to improvements which the
 Respondent could make in regard to the conditions of employment of
 disabled or handicapped employees.  The "Town Hall" meeting was held as
 scheduled on January 21, 1983, and was attended by employees of the
 Office of Disability Operations, including bargaining unit employees.
 Among the topics discussed at the meeting were topics related to the
 conditions of employment of the Respondent's handicapped employees.  The
 Union neither responded to the cover letter inviting it to have an
 observer present nor to the memorandum itself, and no representative of
 the Union attended the "Town Hall" meeting.
 
    The Respondent takes the position that neither the memorandum nor the
 holding of the "Town Hall" meeting constituted an unlawful bypass.
 Thus, it contends that both the memorandum and the meeting had only one
 objective, i.e., to facilitate dialogue with disabled and handicapped
 employees of the Office of Disability Operations.  Moreover, the
 Respondent argues that inasmuch as it provided the Union with a copy of
 the memorandum before it was distributed and invited the Union to be
 present at the meeting, it "acted with full regard to the rights of the
 exclusive representative . . . " The Respondent argues further that
 assuming the General Counsel is correct, i.e., that either the
 memorandum, the meeting, or both constitute a bypass of the exclusive
 representative, the Union slept on whatever rights it may have had when
 it did not respond to the memorandum or send a representative to the
 meeting.
 
    In Internal Revenue Service (District, Region, National Office
 Units), 19 FLRA No. 48 (1985), the Authority, in considering whether the
 agency's conduct therein in distributing questionnaires to unit
 employees constituted an unlawful bypass of the exclusive
 representative, stated:
 
          (A)s part of its overall management responsibility to conduct
       operations in an effective and efficient manner, an agency may
       question employees directly provided that it does not do so in a
       way which amounts to attempting to negotiate directly with its
       employees concerning matters which are properly bargainable with
       its employees' exclusive representative.  In this regard, as the
       Authority has previously noted, management must have the latitude
       to gather information, including opinions, from unit employees to
       ensure the efficiency and effectiveness of its operations.
 
 The Authority concluded that the agency's conduct therein did not
 constitute an unlawful bypass of the exclusive representative because
 the questionnaires were an information gathering mechanism, in
 connection with the management function of studying its operations, and
 because there was no indication that management attempted to deal or
 negotiate directly with unit employees concerning their conditions of
 employment.
 
    In the instant case, the Authority finds that the Respondent did not
 bypass the Union in violation of the Statute by distributing the
 memorandum herein to unit employees or by holding the "Town Hall"
 meeting.  In so finding, the Authority notes particularly that the
 stipulated record fails to establish that the Respondent conducted the
 "Town Hall" meeting in a way which would amount to an attempt to
 negotiate directly with employees on matters properly bargainable with
 their representatives.  Rather, the evidence reveals that the Respondent
 notified the Union of the scheduled meeting, invited it to have an
 observer present, and gave it a copy of the memorandum sent to unit
 employees concerning such meeting.  Thus, the Authority finds that the
 Respondent's mere solicitation of unit employees' opinions herein was
 not an attempt to negotiate directly with them concerning their
 conditions of employment but rather was for the purpose of obtaining
 information concerning its hiring and utilization of disabled and
 handicapped employees in its Office of Disability Operations.
 
    Accordingly the Authority concludes that the General Counsel has
 failed to establish an unlawful bypass in violation of section
 7116(a)(1) and (5) of the Statute and shall dismiss the complaint.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-30336 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., July 31, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) of the Statute 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(.)