[ v19 p762 ]
The decision of the Authority follows:
19 FLRA No. 94 DEPARTMENT OF DEFENSE OFFICE OF DEPENDENTS SCHOOLS Respondent and OVERSEAS EDUCATION ASSOCIATION Charging Party Case No. 3-CA-30302 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 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. Exceptions to the Judge's Decision were filed by the General Counsel and the Respondent, and the Respondent filed an opposition to the General Counsel'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 recommendations only to the extent consistent herewith. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute /1/ by (1) distributing, without prior notice to the Charging Party (the Union), questionnaires to unit employees which solicited their opinions on matters relating to their conditions of employment; and (2) failing and refusing to give the Union an opportunity to negotiate over the manner of gathering information and the impact and implementation of its decision to do so. The Judge concluded that the Respondent's distribution of the questionnaires to unit employees, standing alone, would not have been violative of the Statute, but that an accompanying memorandum which asked for the employees' "suggestions for improvements" constituted a bypass of the Union's rights in violation of section 7116(a)(1) and (5) of the Statute. The Judge further concluded, contrary to the General Counsel's contention, that the Respondent was not under an obligation to give the Union an opportunity to "negotiate over the manner of gathering information and the impact and implementation of its decision to gather the information" irrespective of the validity of the questionnaires. The Authority adopts the Judge's findings and conclusions except to the extent that he found an unlawful bypass in the circumstances of this case. 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 had attempted to deal or negotiate directly with unit employees concerning their conditions of employment. In the circumstances of this case, the Authority finds, contrary to the Judge, that the memorandum accompanying the Respondent's questionnaires, which asked unit employees for "any suggestions for improvement," did not constitute an unlawful bypass of the Union in violation of the Statute. Thus, the memorandum clearly indicated that the questionnaires were "designed as a tool to evaluate the (Respondent's) recruitment and appointment process," that such "evaluation (was) undertaken in order to make (the Agency's) procedures efficient and informative for the applicant," and that information received from such survey would not be "discussed with any regional director, personnel official, or finance official." It is neither alleged nor shown that the Respondent intended to or did use the information gained from the questionnaires in a way which would undermine the status of the exclusive representative. In our opinion, the questionnaires merely elicited factual information and the views of newly recruited employees concerning the Respondent's recruitment and appointment process. Further, the record fails to show that the Respondent by any other action sought to or did in fact attempt to negotiate directly with unit employees concerning their conditions of employment. 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, /2/ and therefore shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-30302 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., August 16, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 3-CA-30302 Karen Tramontano, Esquire For the Charging Party Donna M. Ditullio, Esquire For the General Counsel Mr. Paul Wolfe For the Respondent Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. and the Rules and Regulations issued thereunder. Pursuant to a charge filed on February 4, 1983, by the Overseas Education Association (hereinafter called the Union or OEA), a Complaint and Notice of Hearing was issued on June 17, 1983, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Department of Defense, Office of Dependents Schools (hereinafter called the Respondent), violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute), by virtue of its actions in distributing, without prior notice to the Union, a survey questionnaire to unit employees, which, among other things, "solicited the employees' views and opinions on matters relating to their conditions of employment." A hearing was held in the captioned matter on August 5, 1983, in Washington, D.C. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on September 6, 1983, which have been duly considered. /3/ Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact The Union since, at least, June 22, 1982, has been the certified exclusive bargaining representative of nonsupervisory professional school-level employees employed by Respondent's Atlantic Region, Germany North Region, Germany South Region and Pacific Region. Excluded from the certified unit are all nonprofessional employees, substitute teachers, management officials, supervisors and employee described in Sections 7112(b)(2), (3), (4), (6) and (7) of the Statute. On October 20, 1982, Respondent, in order to improve its procedures with respect to processing newly hired teachers assigned to overseas schools mailed a questionnaire to all newly appointed CONUS (Continental United States) educators. The covering memorandum and the questionnaire read as follows: MEMORANDUM FOR Newly Appointed CONUS Educators SUBJECT: New Employee Questionnaire A few months ago you joined the Department of Defense Dependents Schools (DoDDS) professional staff. By this time you have undoubtedly formed some definite ideas and impressions about your processing and work assignment. This questionnaire is designed as a tool to evaluate the DoDDS recruitment and appointment process. Such evaluation is undertaken in order to make our procedures more efficient and informative for the applicant. Now that you have become a DoDDS employee, we are your assistance in making the "path" easier for others to follow. We hope that you will take the time to answer these questions carefully and that you will not hesitate to give us the benefit of any suggestions for improvements. Please record your responses on the answer sheet provided. Fold the answer sheet in half, staple it, and mail it within 1 week after you receive it to the return address on the back. We will not discuss individual responses with any regional director, personnel official, or finance official. Your prompt attention and cooperation will be greatly appreciated. NEW EMPLOYEE QUESTIONNAIRE PLEASE RECORD YOUR RESPONSES ON THE ATTACHED ANSWER SHEET 1. Did the questions asked during your interview allow you to be adequately assessed as an educator and as to your potential to succeed in an overseas assignment? A. Yes B. No 2. In which of the following areas did you need additional information? A. Area information, teaching assignment, housing, and living conditions B. Sponsor C. Appointments, allowances, and transportation entitlements D. Employee benefits E. Other. Please specify. 3. Were the instructions provided in your pre-appointment package regarding the processing clear and easy to follow? A. Yes B. No. Please specify. 4. Were the staff members from the Office of Dependents Schools (ODS) recruitment staff helpful and informative with your questions or problems? A. Yes B. No C. I did not need to contact ODS 5. Were you contacted either telephonically or in writing by your principal or sponsor prior to departure from the United States? A. Yes B. No 6. Were you met upon arrival by your sponsor or a DoDDS official? A. Yes B. No 7. Did you sponsor assist in completing your overseas processing; i.e., obtaining your drivers license and I.D. card, arranging temporary lodging, and finding permanent housing? A. Yes B. No 8. Approximately how many times did you contact the stateside civilian personnel office for information, advice, or assistance? A. None B. 1 - 5 times C. 6 - 10 times D. 11 - 15 times E. 16 or more times 9. Approximately how many times did you contact the overseas personnel office for information, advice, or assistance? A. None B. 1 - 5 times C. 6 - 10 times D. 11 - 15 times E. 16 or more times 10. On the basis of your contacts with the stateside personnel office, how would you describe its service? (This service would include answering general questions, providing information on programs affecting you, and assisting you in obtaining help or answers to questions which required a personnel specialist.)? A. Excellent B. Very good C. Satisfactory D. Poor E. Very poor 11. On the basis of your contacts with the overseas personnel office, how would you describe its service? (This service would include answering general questions, providing information on programs affecting you, and assisting you in obtaining help or answers to questions which required a personnel specialist.) A. Excellent B. Very good C. Satisfactory D. Poor E. Very poor 12. Did your supervisor discuss with you your current position description? A. Yes B. No 13. Has your supervisor advised you of the performance requirements of your job? A. Yes B. No 14. Is a copy of the Educator Career Program regulation available for your review in your work area, and have the promotional opportunities been explained to you? A. Yes B. No 15. Is there a list of installation Equal Employment Opportunity (EEO) counselors posted in your work area? A. Yes B. No C. Don't Know 16. Were you afforded an opportunity to receive an advance of pay on arrival overseas? A. Yes B. No 17. If YES, did you elect to receive the advance? A. Yes B. No 18. Was your first pay check received in a reasonably timely manner? A. Yes B. No The record established that the questionnaire was distributed to the newly hired CONUS employees without any prior notice to, or bargaining with, the Union. According to Mr. Jack Rollins, President of the Union, various items encompassed in the questionnaire, namely, employee performance requirements, educator career program, equal employment opportunity and advanced pay, are currently the subject of negotiations for a master agreement. /4/ According to Ms. Merilee Fitzgerald, Chief of Staffing, the 1982 questionnaire was "simply to evaluate the CONUS processing and actually the entire recruitment appointment process" Ms. Fitzgerald admitted that the Respondent distributed the 1982 questionnaire without prior notice to, or bargaining with the Union. In this latter connection, Ms. Fitzgerald testified that Respondent had distributed a similar questionnaire in 1981 after receiving permission from Mr. William Breskin, the Union's Membership Director. /5/ Although not specifically stated in the record, it appears that Ms. Fitzgerald was of the opinion that inasmuch as there had been no objection from the Union in connection with the 1981 questionnaire she would receive no objection to the 1982 questionnaire from the Union and thus made no attempt to contact the Union prior to distributing the 1982 questionnaire. The 1982 questionnaire contained two more questions than the 1981 questionnaire, the two additional questions were seventeen and eighteen. With regard to the 1981 Questionnaire, Mr. Rollins testified, without contradiction by any party, that only he and Mr. Austin, the Union's Executive Director, were authorized to receive notices on behalf of the Union. He further denied ever giving Mr. Breskin any authority to approve the 1981 questionnaire. Additionally, Mr. Rollins did not recall having any conversation with Mr. Breskin while Mr. Breskin was in Iceland and he, Mr. Rollins, was in Europe. Discussion and Conclusions The General Counsel takes the position that the Respondent's action in distributing the questionnaire violated Sections 7116(a)(1) and (5) of the Statute since such questionnaire solicited the unit employees' opinions with respect to working conditions and thus bypassed the Union. The General Counsel further contends that Respondent committed an additional violation of Sections 7116(a)(1) and (5) of the Statute when it failed to give the Union prior notice of the questionnaire and the opportunity to "negotiate over the manner of gathering information and the impact and implementation of its decision to gather the information." In support of his position the General Counsel relies primarily on a number of unreviewed Administrative Law Judges' decision. Finally, the General Counsel would find the facts of the instant case to be distinguishable from Kaiserslautern American High School, Department of Defense Dependents Schools, Germany North Region, 9 FLRA 184, where the Authority refused to find that the distribution of a questionnaire to unit employees without prior notice to the Union was violative of the Statute. The respondent relying primarily on Kaiserslautern American High School, supra and the Federal Labor Relations Council decision in Department of the Navy, Naval Air Station, Fallon, Nevada, 3 FLRA 697, takes the position that questionnaire was a "permissible form of management communication with bargaining unit employees" which was neither an attempt to, nor did, undermine the Union. Further, according to the Respondent, in such circumstances it was under no obligation to give the Union prior notice and the opportunity to bargain over impact and the manner of implementation. Additionally, Respondent takes the position that in view of the lack of objection from the Union in 1981 to a similar survey, it was under no obligation to seek its approval for the distribution of the 1982 questionnaire. /6/ In Kaiserslautern American High School, supra, the Authority concluded that the Respondent therein did not violate the Statute when, in an attempt to overcome a third party evaluation report charging Respondent with poor teacher morale at its school, it mailed a questionnaire to faculty members which read: Re the NCA report MY PERSONAL MORALE IN KAHS is: Normal/Average . . .; Higher than Normal . . .; Lower than Normal . . . " In finding that the above quoted questionnaire did not amount to a bypass of the Union, the Authority stated as follows: . . . , the Authority concludes that the Respondent was merely gathering information to enable it to respond to a finding by an independent agency so that it might overcome an evaluation report affecting its accreditation. Not all direct communication between management and its employees is prohibited. See United States Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65 (1980). See also Department of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71 (1982). Since the poll herein was simply to gather information to support the Respondent's independent accreditation, was reasonably understood to be for such purpose, and was done in a manner which in no way threatened or promised benefits to employees or otherwise undermined the Union, the Authority finds that the General Counsel has failed to establish unlawful direct dealings by the Respondent with employees over matters affecting working conditions in violation of Sections 7116(a)(1) and (5). In both the cases cited by the Authority in support of its decision the respective administrative law judges, whose decisions were adopted in toto by the Authority, relied on the criteria set forth by the Federal Labor Relations Council in Department of the Navy, Naval Air Station, Fallon, Nevada, FLRC No. 74A-80, 3 FLRC 697 (1975) in determining whether or not the respective respondents had bypassed the unions there involved. In Department of Navy, Naval Air Station, Fallon, Nevada, supra, a case decided under Executive Order 11491, the Council stated as follows: In determining whether a communication is violative of the Order, it must be judged independently and a determination made as to whether the communication constitutes, for example, an attempt by agency management to deal or negotiate directly with unit employees or to threaten or promise benefits to employees. In reaching this determination, both the content of the communication and the circumstances surrounding it must be considered. More specifically, all communications between agency management and unit employees over matters relating to the collective bargaining relationship are not violative. Rather communications which, for example, amount to an attempt to bypass the exclusive representative and bargain directly with employees, or which urge employees to put pressure on the representative to take a certain course of action, or which threaten or promise benefits to employees are violative of the Order. To the extent that such communication is permissible, it is immaterial whether such communication was previously agreed upon by the exclusive representative and the agency or activity concerning the latter's right to engage in such communication. A review of the aforementioned cases, particularly Kaiserslautern and Department of the Navy, Naval Air Station, Fallon, Nevada, make it clear that the validity of any communication between management and its employees turns solely on the circumstances surrounding such communication. Thus, where the facts and circumstances surrounding the communication make it clear that the communication was for purposes other than a potential or contemplated change in working conditions, such communication, be it a questionnaire or poll, is not violative of the Statute. However, where the communication is issued under such circumstances where it can be reasonably concluded that the answers to such communication could well serve as a predicate for some future change in terms and conditions of employment such communication loses its validity and violates the Statute. Once certified as the exclusive bargaining representative, the Union becomes the sole spokesman for the unit employees, and as such, is entitled to be consulted with respect to any questions concerning unit employees opinions with respect to existing terms and conditions of employment. Employee dissatisfaction with existing terms and conditions of employment and presentation of proposals for correcting same is one of the prime responsibilities of a Union. Allowing management to independently solicit employee opinions and subsequently propose or effect changes in working conditions based thereon deprives the certified union of its Section 7114(a)(1) rights to speak as the representative for the unit employees. Applying the above conclusions to the facts of the instant case I find that the questionnaire here under consideration intruded upon the representational rights accorded the Union as the exclusive representative of Respondents employees. In reaching this conclusion I rely primarily on the second paragraph of the memorandum accompanying the questionnaire, wherein the Respondent requested the unit employees not only to take time to answer the questions carefully but also solicited the employee's "suggestions for improvements." As noted above, it is the Union which speaks for unit employees, and as such, is the only person to be consulted with respect suggestions for improvement of working conditions. Accordingly, in view of the foregoing, I find that Respondent's conduct amounted to a bypass of the Union, derogated the Union's status as the certified representative of the unit employees, and, consequently, violated Sections 7116(a)(1) and (5) of the Statute. Further, had there been no solicitation or request for suggestions attached to the questionnaire, I would find the questionnaire, standing alone, not to be violative of the Statute. The questionnaire, which was designed as a tool to evaluate the recruitment and appointment process, merely elicited facts as to compliance with existing agency policies and procedures, made no promises of benefits or changes and provided no opportunity for comments or suggested changes. While it is true as pointed out by the General Counsel that various subjects encompassed in the questionnaire, i.e. employee performance standards, educator counselling program, equal opportunity and advanced pay, were of concern to the Union and were in fact subsequently put on the bargaining table, the reference to such subjects on the questionnaire was not to the substance of the subjects but rather limited to whether the existence of such programs, standards, etc. had been made known to the newly hired educators. In such circumstances, the questionnaire, standing alone, would appear to comport with the standards enunciated by the Authority in Kaiserslautern American High School, supra, and hence would not be violative of the Statute. Finally, contrary to the contention of the General Counsel, I cannot find that irrespective of the validity of the questionnaire, Respondent was under an obligation to give the Union the opportunity to "negotiate over the manner of gathering information and the impact and implementation of its decision to gather the information." In Department of Navy, Naval Air Station, Fallon, Nevada, the Council specifically held that "to the extent that such communication is permissible, it is immaterial whether such communication was previously agreed upon by the exclusive representative." Inasmuch as my research has failed to uncover any decisions of the Authority indicating that the Authority has implicitly or otherwise decided to overrule the Council's holding, the Council's decision, pursuant to Section 7135 of the Statute remains the controlling case precedent in the matter. Having concluded that the Respondent's conduct in soliciting suggestions for improvement of the recruitment and appointment process, without first obtaining the Union's consent, constituted a bypass of the Union in violation of Sections 7116(a)(1) and (5) of the Statute, it is hereby recommended that the Authority issue the following: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Department of Defense, Office of Dependents Schools shall: 1. Cease and desist from: (a) Bypassing the Overseas Education Association, the exclusive representative of its employees, and dealing directly with unit employees by soliciting employee's suggestions concerning personnel policies and practices and matters affecting working conditions. (b) 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 effect the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Post at all facilities wherein unit employees are located, 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 a responsible official of the Department of Defense, Office of Dependents Schools and shall be posted and maintained by such official for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Department of Defense, Office of Dependents Schools shall take reasonable steps to insure that such 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 of Region III, Federal Labor Relations Authority, 1111 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. BURTON S. STEINBERG Administrative Law Judge Dated: October 7, 1983 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT bypass the Overseas Education Association, the exclusive representative of our employees, and deal directly with unit employees by soliciting employees' suggestions concerning personnel policies practices and matters affecting working conditions. 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 Statute. (Agency/Activity) Dated: . . . By: (Signature) This Notice must remain posted for sixty (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 III, whose address is 1111 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758; and whose telephone number is (202) 653-8507. --------------- 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(.) /2/ See also Department of Health and Human Services, Social Security Administration, 19 FLRA No. 56 (1985). /3/ In the absence of any objection, General Counsel's motion to correct the transcript is hereby granted. /4/ The negotiations for a master agreement commenced on December 15, 1982. /5/ Mr. Breskin, whom I credit, testified that he never discussed the 1981 questionnaire with Ms. Fitzgerald. Further according to Mr. Breskin, at the time the questionnaire was distributed he was in Iceland on Union business and he never talked on the telephone with Ms. Fitzgerald. In support of his testimony, Mr. Breskin offered his handwritten dairy which set forth the events, telephone calls etc. involved in his trip to Iceland. Such diary makes no mention of any telephone conversations during the trip to Ms. Fitzgerald. /6/ Having credited the testimony of Mr. Breskin to the effect that no conversations with respect to the 1981 questionnaire were held between him and Ms. Fitzgerald, I find this latter defense of the Respondent to be without merit. Moreover, and in any event, the fact that a previous questionnaire was distributed without any objection from the Union, does not, standing alone, support a waiver for all subsequent communications or questions.