WASHINGTON, D.C.
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SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS FALLS CHURCH, VIRGINIA
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and
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Case No. SF-CA-70728
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Wilson Schuerholz Representative of the Respondent
Timothy J. Sheridan Counsel for the Charging Party
Christopher Pirrone Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
The issue in this unfair labor practice case is whether the Respondent (SSA) violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (2), by refusing to allow Joan Kirshner, an employee and Charging Party (Union or NTEU) representative, to use official time to perform Union representational duties while she was working at her home under SSA's pay for work-at-home policy.
Respondent contends that it did not violate the Statute as its action was based on a long-standing policy founded on Comptroller General decisions. Respondent claims that Ms. Kirshner was approved for the pay for work-at-home program during the period she was recovering from an injury so that she could perform her regularly assigned duties. She was not allowed to perform Union duties on official time at home because the Union work was not reviewable in terms of quantity and quality as required. Respondent states that it has treated other activity which could not be reviewed and measured in a similar way and did not discriminate on the basis of protected Union activity.
For the reasons set out below, I find that SSA violated the
Statute as alleged.
A hearing was held in Seattle, Washington. SSA, NTEU, 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. The General Counsel and
the Respondent filed helpful briefs. Based on the entire record,
including my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions of law, and
recommendations.
The Parties
NTEU is the exclusive representative of a nationwide
consolidated unit of professional employees of the SSA, Office of
Hearings and Appeals (OHA), in certain offices, including such
employees in the OHA Seattle office.
Joan Kirshner's Agency Work
Joan Kirshner is an employee, a senior attorney advisor, of OHA
Seattle. She evaluates and develops social security disability
cases on appeal and prepares and issues decisions in cases where
benefits can be granted. Her decisions granting benefits without an
Administrative Law Judge (ALJ) hearing are not reviewed by her
supervisors as she is an independent adjudicator in such cases. In
cases that cannot be granted on the existing record, and in which
hearings must be held to further develop the record before ALJs,
she prepares memoranda analyzing the reasons why a hearing must be
held and drafts decisions as directed by the ALJs following such
hearings. Her work in the latter category is reviewed.
Prior to July 19, 1997, Kirshner worked four ten-hour days and
about ten hours overtime under an alternative work schedule. She
worked three days in the office and one day at home under the
negotiated flexiplace agreement.
Kirshner spent about 25% of her workdays on OHA work and
received performance appraisals based on this work.
Kirshner's NTEU Activity and Official Time
Ms. Kirshner was one of the founding members of the bargaining
unit in 1982 and is now Executive Vice President and Chief Steward
of NTEU, Chapter 224, a national chapter representing approximately
600 employees in 130 OHA offices. In this capacity, she supervises
stewards, prepares and monitors all grievances filed nationally,
negotiates and administers collective bargaining agreements, and is
in frequent and regular contact with SSA officials.
Kirshner spent about 75-85% of all of her workdays on official
time, on Union duties. Article 40, Section l of the agreement
between OHA and NTEU, provides that Union officers and stewards
will be granted a reasonable amount of official time for some 23
different representational matters. Article 40, Section 2 provides
the procedures for the use of such time. (Joint Exh. 6).
Kirshner accounted for her official time by filling out
detailed official time reports. (GC. Ex. 3 (a)-(c)). The official
time reports are daily logs in which Kirshner provides the date she
is using official time, the amount of official time used, and the
OHA office that the official time involves. OHA also requires
Kirshner to fill out information under two additional categories
which management created, a time category and a fund category.
Under the time category, Kirshner describes how much time she spent
in each specific activity, choosing from a list of six categories
including bargaining, FLRA material, EEO material, management
grievances, Union grievances, travel time and per diem matters.
Under the fund category, Kirshner explains the type of Union
activities she's participating in, such as represen-tation,
negotiations or arbitrations. Kirshner gives these reports to her
supervisor, Eileen Otti, on a monthly or quarterly basis, as
required.
Prior to July 19, 1997, Kirshner's requests for official time
were never denied. Kirshner's reports were used by the supervisor
to complete a "supervisor's report on the use of official time for
representational functions," which was forwarded to higher
management to track official time use.
Kirshner's July 1997 Injury
On July 19, 1997, Kirshner fell off a ladder and broke her
right leg. She was allowed to be on flexiplace work at times while
in the hospital. Following her hospital stay, she was unable to
commute to work and requested to work at homeunder the reasonable
accommodation regulations. OHA Seattle replied that reasonable
accommodation was not the appropriate procedure in these
circumstances and denied the request. However, OHA Seattle advised
Kirshner that she should apply under SSA's pay for work-at-home by
exception policy.
Kirshner Requests to Work at Home
Supervisor Otti, on Kirshner's behalf, completed Kirshner's pay
for work-at-home by exception request and forwarded it to SSA on
August 15, 1997. The request stated, in part, as follows (Joint
Exh. 3):
Joan Kirshner has been performing at or above the fully
satisfactory level.
. . . .
Ms. Kirshner would like to do both union and office work. Union
work would be reported through her official time reports. The
quality and quantity of this work is not evaluated by me, but the
amount of official time is recorded. Her office work will be done
on computer and the case and disc will be turned into me. This is
what she currently does when she works at home, and it allows me to
observe both how many cases are getting done and the quality of
this work.
. . . .
Ms. Kirshner currently works at home on Mondays through the
negotiated agreement on Flexiplace. . . . and would like authority
to work Tuesday through Thursday at home until transportation from
her home can be arranged.
Ms. Kirshner is the Executive Vice President and Chief Steward of NTEU chapter 224. She would like to do the work of this position while at home. In addition, Ms. Kirshner would like to do her work as a senior attorney advisor.
Pending approval of her request, Kirshner worked at home on her authorized flexiplace day and took sick leave for the remainder of the workdays.
SSA's Reply
By letter dated September 5, 1997, SSA Associate Commissioner
Rita S. Geier responded to the request, stating, in part, as
follows (Joint Exh. 5):
We can and do approve Ms. Kirshner's request to work at home to
perform the duties of her Senior Attorney position based on the
information provided by Ms. Eilene [sic] Otti in her note of August
15, 1997. Based on the guidance received from the Office of Human
Resources, we cannot authorize work at home under this program to
perform union representational activities or other functions not
assigned by the agency. The Pay for Work-at-Home by Exception
policy is limited to duties within the employee's position or
assigned by the agency, and requires that management be able to
measure the quality and quantity of work performed by the employee
at home and ensure that the work is being performed satisfactorily.
While management may authorize official time to perform union
related functions, it does not review or evaluate the quality of
union representational activities.
Kirshner's Work-at-Home and Annual Leave
After this partial approval, and during the period September
10, 1997 to late November 1997, Kirshner participated in the pay
for work-at-home by exception program. She was not allowed to
perform Union representational activities on official time while in
this program and, therefore, took 172 and 3/4 hours of annual leave
(almost four weeks) to accomplish her Union representational duties
during this period. She usually indicated on the annual leave slips
that the leave requested was "Under protest. Performing statutory
Union duties while confined to home," and the leave was approved
(G.C. Exh. 4). The Respondent does not contend that it would not
have approved official time for Kirshner under the provisions of
the collective bargaining agreement for this period had she been
working her normal schedule.
Kirshner continued to use one day a week at home as her
flexiplace day, under her normal arrangement, and she continued to
be granted official time to work on Union activities on this
day.
Kirshner performed work assigned by OHA during the remainder of
the time, which sometimes amounted to about ten hours a week, and
she was also granted overtime to work on her SSA duties. The OHA
work completed by Kirshner while at home consisted of memoranda in
about six cases analyzing why a case needed a hearing or a
consultative examination, which work was reviewed, and about nine
or ten decisions granting benefits in SSA cases without an ALJ
hearing, which work was not, and could not be, reviewed. (G.C. Exh.
5).
Supervisor Otti recommended Kirshner for a performance award
for the appraisal period from July 1, 1997, until September 30,
1997, based mainly on her overtime agency work.Kirshner resumed her
normal office and flexiplace schedule around Thanksgiving 1997 and
is no longer participating in the pay for work-at-home by exception
program.
The Pay for Work-At-Home by Exception Policy
The authority for the SSA's pay for work-at-home by exception
policy evolved from Comptroller General decisions authorizing the
payment of salaries for persons working at home under certain
conditions. SSA provided five such decisions, covering from 1957 to
1986, for the record (Res. Exh. 1). The latest decision furnished,
Matter of Work Performed at Home, 65 Comp.
Gen. 826, 1986 WL 60545 (September 4, 1986), summarized the
criteria for such compensation as follows:
With regard to work-at-home programs, we have expressed the view
that under most circumstances, Federal employees may not be
compensated for work performed at home rather than at their duty
stations. However, we have authorized exceptions to this general
rule under limited circumstances. When actual work performance in
the home can be measured against established quantity and quality
norms so as to verify time and attendance reports, we have
interposed no objection to payment of salaries. We have allowed
Federal employees to be compensated for work performed at home in a
variety of circumstances, provided the work was of a substantial
nature, the employing agency was able to verify that the work had
in fact been performed, and there appeared to be a reasonable basis
to justify the use of the home as a workplace.
There is no specific mention of the pay for work-at-home policy in the national collective bargaining agreement. This program originally applied to SSA through a policy issued in 1981 by the Department of Health and Human Services (HHS), as HHS was at one time the parent organization of SSA (Joint Exh. 1). Then, in 1993, SSA issued its own policy (Joint Exh. 2), which was essentially a restatement of the HHS policy. Neither policy specifically refers to performing union representational activity on official time.
The HHS policy provided that "management must have a means of
measuring the quality and quantity of the work performed. Only in
this manner can the Government be assured that it is receiving at
least fully satisfactory work performance under such an
arrangement." An annual report required a statement concerning
"[h]ow work was checked for quality and quantity to assure at least
fully satisfactory performance." (Joint Exh. 1, p.2 ).
The SSA policy also requires a written request including a
"statement of how the quality and quantity of work performed will
be measured" and a "statement of the duties of the employee's
position to be performed at home." An annual report also requires a
"brief explanation of the kind of work performed and how the work
was checked for quality and quantity." (Joint Exh. 2, pp. 2-3).
SSA has rejected other employees for the pay for work-at-home by exception policy where it was determined that the quantity and quality of their work could not be measured. These instances involved proposed agency work and not union activity. These included (1) a receptionist, whose job it was to greet people in an office setting, (2) a messenger, or driver, who drove shuttles delivering material, (3) computer programmers, who could not access the system from home for security reasons, and (4) an employee, who was also an AFGE union representative, who could have performed agency work at home, but needed training to update his skills and could not attend a training class because of his injury.(1)
Positions of the Parties
The General Counsel
The General Counsel contends that by refusing to permit
Kirshner to use official time while she was working at home under
the Respondent's pay for work-at-home policy, the Respondent
violated section 7116(a)(1) and (2) of the Statute. The General
Counsel claims that Kirshner's protected activity was the
motivating factor in Respondent's decision to deny official time to
Kirshner while she was on pay for work-at-home and, although the
policy was not designed to discriminate against union officials,
Respondent's narrow interpretation and its application to
Kirshner's situation had an unfair and discriminatory result;
specifically, Kirshner was prohibited from engaging in protected
activities.
The General Counsel claims that Respondent's excuses for
denying Kirshner official time under this program are not
legitimately justifiable, as required under Letterkenny Army Depot, 35 FLRA 113 (1990)
(Letterkenny); that there is no legitimate
basis on which to distinguish flexiplace from work-at-home; that
the myriad of information Kirshner normally provided concerning
when, where, and what she was doing on her official time reports
was enough for the supervisor to determine that Kirshner was
performing adequately while at home on official time, i.e. that she
was actually performing official time duties and not abusing the
system, and these reports would have satisfied the pay for
work-at-home policy's requirement that the supervisor
check for quality and quantity. Counsel for the General
Counsel notes that the supervisor does not review Kirshner's senior
attorney work for quantity and quality, so how was Respondent able
to approve this work for the pay for work-at-home but not union
work.
The General Counsel contends that the Comptroller General
decisions offered by the Respondent stand for the proposition that
the Comptroller General will approve any reasonable request for
work at home provided management has some way of monitoring the
employee and ensuring satisfactory performance, something that the
General Counsel claims could have easily been done in this
case.
The Respondent
As noted, Respondent contends that it
did not violate the Statute as its action was based on a
long-standing policy founded on Comptroller General decisions.
Respondent claims that Kirshner was approved for the pay for
work-at-home program during the period she was recovering from an
injury so that she could perform her regularly assigned duties. She
was not allowed to perform Union duties on official time at home
because the Union work is not agency work and is not reviewable in
terms of quantity and quality as required under the policy.
Respondent states that it has treated other activity which could
not be reviewed and measured in a similar way and did not
discriminate on the basis of protected Union activity. The
Respondent claims that Kirshner's official time log would not be an
adequate measure of her performance as no measurement of
performance can be gleaned from this document. The Respondent also
argues that the fact that Kirshner was allowed to use official time
on her flexiplace day at home is not dispositive since this was a
different program, the result of an agreement with NTEU, and
allowing Kirshner to do so may have been an error on the part of
OHA Seattle.(2) The Respondent also
submits that if it did allow Ms. Kirshner to perform her Union
activities while on the pay for work-at-home by exception program,
it would more appropriately be subject to a charge of
discrimination for encouraging membership in a labor organization
in connection with a condition of employment, rather than
discouraging it. It claims the agency would be treating something
it cannot appropriately measure (union activity) in a way different
than it treats other non-union activity that it cannot measure.
Discussion and Conclusions
The Statute
Consistent with the findings and purpose of Congress as set
forth in section 7101, section 7102 of the Statute sets forth
certain employee rights including the right to form, join, or
assist any labor organization freely and without fear of penalty or
reprisal and that each employee shall be protected in the exercise
of such right. Such right includes the right to act for a labor
organization in the capacity of a representative. Section
7116(a)(1) of the Statute provides that it shall be an unfair labor
practice for an agency to interfere with, restrain, or coerce any
employee in the exercise of any right provided by the Statute.
Section 7116(a)(2) of the Statute provides that it shall be an
unfair labor practice for an agency to encourage or discourage
membership in any labor organization by discrimination in
connection with hiring, tenure, promotion, or other conditions of
employment.
The Authority's Analytical Framework
Under the Authority's analytical framework for resolving
complaints of alleged discrimination under section 7116(a)(2) of
the Statute, the General Counsel has, at all times, the overall
burden to establish by a preponderance of the evidence that: (1)
the employee against whom the alleged discriminatory action was
taken was engaged in protected activity; and (2) such activity was
a motivating factor in the agency's treatment of the employee in
connection with hiring, tenure, promotion, or other conditions of
employment. As a threshold matter, the General Counsel must offer
sufficient evidence on these two elements to withstand a motion to
dismiss. However, satisfying this threshold burden also establishes
a violation of the Statute only if the respondent offers no
evidence that it took the disputed action for legitimate reasons.
Where the respondent offers evidence that it took the disputed
action for legitimate reasons, it has the burden to establish, by a
preponderance of the evidence, as an affirmative defense that: (1)
there was a legitimate justification for its action; and (2) the
same action would have been taken even in the absence of protected
activity. United States Air Force Academy,
Colorado Springs, Colorado, 52 FLRA 874, 878-89 (1997);
Federal Emergency Management Agency, 52
FLRA 486, 490 n.2 (1996); Letterkenny.
Protected Activity
There is no dispute that Kirshner was engaged in protected
activity. Kirshner was one of the founding members of the
bargaining unit in 1982 and has been Chief Steward and Executive
Vice President for the past 10 years. She has spent 75% or more of
her time on official time for Union representa-tional activities.
She also often spent most, or all, of her flexiplace day at home on
official time.
Condition of Employment
The Authority has held that the use of official time by Union
officials for representational activities is a condition of
employment. U.S. Patent and Trademark
Office, 39 FLRA 1477, 1482 (1991). Thus, OHA's denial of
official time to Kirshner under the terms of the collective
bargaining agreement as a result of the application of the pay for
work-at-home policy involved a condition of employment.
Motivation
The General Counsel also satisfied the threshold burden of
showing that consideration of Kirshner's protected activity was a
motivating factor in SSA's decision to deny Kirshner official time
while working at home under the pay for work-at-home policy. SSA
did not authorize Kirshner to perform Union representational
activities on official time during this period based on the fact
that management could not measure the quality or quantity of such
activities.
Affirmative Defense Not Established
As set forth in detail above, the Respondent defends on the basis that it could not approve official time for Kirshner while she was working at home because management could not review the work in terms of quantity and quality as required by the SSA policy. I agree with the General Counsel, although for different reasons, that the Respondent's defense does not present a legitimate reason for the Respondent's action in refusing to allow Kirshner the use of official time to perform Union representational duties while working at home under the Respondent's pay for work-at-home policy.
The Comptroller General decisions, the HHS policy, and the SSA
policy, relied upon by the Respondent, concerning pay for
work-at-home, all deal with authorizing pay for agency
work at home and the requirement that agency work be
reviewed in terms of quantity and quality. As the Associate Commissioner for OHA
stated, "The Pay for Work-at-Home by Exception policy is limited to
duties within the employee's position or assigned by the agency . .
. ." The policy does not deal with official time or
representational activity and simply was not applicable to
Kirshner's separate request for official time or pay for official
time. The Authority has specifically held that an employee's
performance of representational activities under section 7131(d) of
the Statute does not constitute the performance of the work of an
agency. U.S. Department of Defense, Army and Air
Force Exchange Service, Dallas, Texas and American Federation of
Government Employees, 53 FLRA 20, 24-25 (1997). Thus, the
Respondent was not placed in the position of having to deny
Kirshner official time because it could not legitimately review
Kirshner's representational activity in terms of quantity and
quality under the pay for work-at-home policy.
Once Kirshner was assigned to work at home on agency work under
the pay for work-at-home policy, the Respondent had to look no
further than the Statute and the collective bargaining agreement to
determine whether Kirshner was entitled to official time and the
concomitant payment for official time when she otherwise would have
been in a duty status. The phrase "official time" is "employed in
the Statute to mean absence from duty without charge to leave or
loss of pay for employees performing representational activities."
American Federation of Government Employees,
AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation,
Madison Region, 21 FLRA 870, 895 (1986). "The allotment of
official time results in use of Federal funds to 'pay for' wages or
salary." U.S. Department of the Army, Corps of
Engineers, Memphis District, Memphis, Tennessee and National
Federation of Federal Employees, Local 259, 52 FLRA 920, 930
(1997) (Army Corps). Section 7131(d) of the
Statute expressly authorizes payment, through the grant of official
time, for "any employee representing an exclusive representative
...in any amount the agency and the exclusive representative
involved agree to be reasonable, necessary, and in the public
interest." Cf. Army
Corps, 52 FLRA at 927-34 (Statute constitutes an express
authorization by Congress for using Federal funds to grant official
time to employees to lobby Congress on represen-tational matters in
such amount as the employing Federal agency and the exclusive
representative agree).
In Article 40, Section l of the agreement between OHA and NTEU, the parties have provided that Union officers and stewards will be granted a reasonable amount of official time for some 23 different representational matters. Article 40, Section 2 provides the procedures for the use of such time. The Respondent does not contend that Kirshner's requests for official time would not have been granted under these provisions but for the invoking of the pay for work-at-home by exception program and its conclusion that Union representational activity could not be permitted as it was not reviewable in terms of quantity and quality under that program. As noted, the program applies to pay for agency work at home and does not specifically exclude or otherwise refer to official time which is nonduty time.
When Kirshner was in a duty status, as determined by the Respondent's regulations, whether in the office, on flexiplace, or under the pay for work-at-home by exception program, she was entitled to apply for official time as determined by the Statute and the terms of the collective bargaining agreement. Kirshner had accounted for official time under the Respondent's procedures while using official time when she was otherwise on duty in the office, or on flexiplace, and there is no contention that these procedures would not have been an acceptable method of accounting for official time (as opposed to its quality and quantity) while she was otherwise on the pay for work-at-home by exception program for agency work. In fact, Supervisor Otti testified that the official time reports would have been adequate, and she had originally planned to follow these same proceduresuntil higher management ruled that Kirshner could not use official time while under the pay for work-at-home policy. (Tr. 81-83).
It is concluded that Respondent's action, refusing to allow
Kirshner to use official time while she was working at home under
the Respondent's pay for work-at-home by exception policy,
interfered with, and had a discriminatory effect on, Kirshner's
protected activities and violated section 7116(a)(1) and (2) of the
Statute, as alleged. Department of Health and
Human Services, Regional Personnel Office, Seattle,
Washington, 47 FLRA 1338 (1993) (citing cases) (agency
violated section 7116(a)(1) and (2) of the Statute by refusing to
credit union experience in the same manner as other outside
experience in determining qualifications for a position; Authority
rejected agency defense that its policy was necessary to ensure
that union duties were not evaluated, as such evaluation was not
shown to be necessary); 162nd Tactical Fighter
Group, Arizona Air National Guard, Tucson, Arizona, 21 FLRA
714 (1986) (imposition of the condition that employees had to wear
military uniforms to receive official time violated section
7116(a)(1)).
Counsel for the General Counsel requests that Respondent be ordered to restore Kirshner's annual leave taken under protest from September to November 1997 regardless of the current "use or lose" status of Kirshner's annual leave. In addition, Counsel for the General Counsel requests that Respondent be ordered to post an appropriate notice throughout the NTEU, Chapter 224 national bargaining unit, signed by the Associate Commissioner of OHA, inasmuch as the denial of official time occurred at the national level and has nationwide ramifications on the bargaining unit. The requested remedy is appropriate in this instance. U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA 1254 (1993).
Based on the above findings and conclusions, it is 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,
it is hereby ordered that Social Security Administration, Office of
Hearings and Appeals, Falls Church, Virginia shall:
1. Cease and Desist from:
(a) Discriminating against union officials, such as
NTEU Executive Vice President Joan Kirshner, by denying requests
for official time while the union official is on duty status under
the pay for work-at-home policy.
(b) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of rights
assured them by the Statute.
2. Take the following affirmative action in order to effectuate
the purposes and policies of the Statute:
(a) Restore to Joan Kirshner all annual leave taken
under protest from September to November 1997. Such leave shall be
restored so as to allow the use of leave regardless of the current
"use or lose" status on Kirshner's current balance of annual
leave.
(b) Post throughout the NTEU, Chapter 224 national
bargaining unit copies of the attached notice on forms to be
furnished by the Authority. Upon receipt of such forms, they shall
be signed by the SSA Associate Commissioner for OHA 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. Reasonable steps
shall be taken to ensure that such notices are not altered, defaced
or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director, San Francisco
Region, 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.
Issued, Washington, DC, May 29, 1998
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that Social
Security Administration, Office of Hearings and Appeals, Falls
Church, Virginia violated the Federal Service Labor-Management
Relations Statute (Statute) and has ordered us to post and abide by
this notice.
We hereby notify our employees that:
WE WILL NOT discriminate against union officials, such as NTEU
Executive Vice President Joan Kirshner, by denying requests for
official time while the union official is on duty status under the
pay for work-at-home policy.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
assured them by the Statute.
WE WILL restore to Joan Kirshner all annual leave taken under
protest from September to November 1997. Such leave shall be
restored so as to allow the use of leave regardless of the current
"use or lose" status on Kirshner's current balance of annual
leave.
(Activity)
Date: __________________ 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, San Francisco Region, Federal Labor
Relations Authority, whose address and telephone number is 901
Market Street, Suite 220, San Francisco, California 94103, (415)
356-5000.
1. Counsel for the General Counsel's motion to strike the portion of Respondent's brief dealing with this denial of pay for work-at-home to an AFGE representative is denied. The evidence was elicited at the hearing without objection. Counsel for the General Counsel's objection to testimony about the AFGE representative only followed a question dealing with whether labor relations work would have been allowed under the AFGE contract dealing with flexiplace. The objection was sustained as this evidence would have been irrelevant.
2. Merilee Davis, who works for the Center for Personnel Policy and Program Development in SSA headquarters, testified that OPM guidance for the flexiplace program also required a monitoring of quantity and quality which would make performing union activities on official time inappropriate. (Tr. 107-08). However, there is no dispute that Kirshner was authorized by OHA Seattle to perform Union representational activities on official time while on flexiplace at home, she regularly used such time, and it was always approved.