34 FLRA-ALJ; Case No. 2-CA-30146 November 7, 1983
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS, NEW
YORK REGION, Respondent, and AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, Charging Party
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute," and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
On December 15, 1982, the Charging Party (also referred to herein as
"AFGE") filed an unfair labor practice charge against Respondent. The
charge was investigated and, on May 31, 1983, the Acting Regional
Director, Region II, of the Federal Labor Relations Authority
("Authority"), served upon the parties the complaint initiating this
proceeding.
On July 18, 1983, this complaint was consolidated with complaints in
Case Nos. 2-CA-30117, 2-CA-30145, 2-CA-20155 and 2-CA-30179. On August
11, 1983, all cases but 2-CA-30117 and this one were severed. On August
17, 1983, this case was severed from 2-CA-30117.
The complaint alleges that Respondent, on or about August 26, 1982,
unlawfully limited the participation of the Charging Party's
representative at a examination of a unit employee in connection with an
investigation which the employee reasonably believed might result in
disciplinary action against him; thereby failed and refused to comply
with 5 U.S.C. 7114(a)(2)(B); and thereby violated 5 U.S.C. 7116(a)(1)
and (8). /1/
A hearing was held on August 18, 1983, in New York City, at which the
parties appeared, adduced evidence, and examined witnesses. Briefs were
due on or before September 19. Briefs were filed by the Respondent and
the General Counsel on October 28, pursuant to an order dated September
8, which so extended the briefing time, upon a showing of good cause by
Respondent. Based upon the record made in this proceeding, the briefs
and my observation of the demeanor of the witnesses, I make the
following findings of fact and conclusions of law, and recommend the
entry of the following order.
1. It is admitted that Respondent is and has been an agency, and the
Charging Party a labor organization, within the meaning of the Statute,
at all times material herein.
2. It is also admitted that the Social Security Administration
("SSA") Office of Field Operations, New York Region, is and has been a
constituent entity within the Department of Health and Human Services
("DHHS"), SSA, and an agent acting on its behalf, at all times material
herein.
3. It is also admitted that, at all times material herein, the
Charging Party has been and is the certified exclusive representative of
a consolidated nationwide unit of certain employees of Respondent,
including all employees in the District and Branch Offices of the SSA in
the States of New York and New Jersey, with exclusions not here
relevant.
4. It is also admitted that AFGE Local 3369 ("Union") acts as the
Charging Party's representative for the purpose of collective bargaining
for Respondent's employees at its Jamaica, New York District Office, and
has been recognized by Respondent as such, during all times material
herein.
5. Stanley Chodos is employed as a claims representative by
Respondent at its Washington Heights office. He is also the office
representative for the Union and holds the title of Third
Vice-President. John Riordan is President of the Union. Douglas
Chauvin is employed as a claims representative by Respondent in its
Jamaica office. Mr. Chauvin /3/ is also the Sixth Vice-President for
Grievances and EEO Coordinator for the Union.
Robert Heiler was Mr. Chauvin's immediate supervisor in August. Edward
Hebron was Operations Officer and supervised Mr. Heiler, at the Jamaica
office, in August.
6. On Friday, August 20, Mr. Hebron came by the desk of Mr. Chauvin
and said that he wanted a meeting with Mr. Chauvin "to account for (his)
whereabouts from seven minutes to five until five o'clock yesterday"
(TR. 51). Mr. Chauvin said that he wanted a union representative
present. Mr. Chauvin testified, and I find that Mr. Hebron said that
the meeting would be held next Thursday, "whether or not (he) had a
representative present." (TR. 51). (Mr. Hebron, in his subsequent
testimony, did not deny saying this.)
7. About an hour later, Mr. Hebron came by the desk of Mr. Chauvin
and asked if he had gotten a representative yet.
8. Some time between then and Thursday, August 26, Mr. Chauvin
contacted Mr. Riordan and asked him to be his representative. Mr.
Riordan had other commitments and delegated the responsibility to Mr.
Chodos, on August 25. Mr. Riordan asked Susan Pike, Respondent's
manager of the Jamaica office, to postpone the Thursday, August 26
meeting. She refused.
9. As soon as Mr. Chodos received his delegation of authority to
represent Mr. Chauvin, he contacted Ms. Pike and arranged to meet with
Mr. Chauvin on August 26, in the morning.
10a. As to the events on August 26, the testimony of Mr. Chodos and
Mr. Chauvin differed, in some important aspects, from that of Mr. Heiler
and Mr. Hebron. Mr. Chodos testified that he was repeatedly told by Mr.
Heiler and Mr. Hebron to "shut up" during the interview of Mr. Chauvin
that took place on that day. See TR 15, 17, 19, 38, 44, 45, 46. Mr.
Heiler and Mr. Hebron emphatically denied the use of these words; and
Mr. Chauvin could not recall their use. See TR 68, 88, and 58. Also,
Mr. Chauvin recalled that Mr. Chodos, making "some objection about the
destruction of the interview slips" (evidence that could have exonerated
Mr. Chauvin of the charge of leaving work early on August 19) was told
by Mr. Heiler "that the interview was being conducted with (Mr. Chauvin)
and that (he) was the one that had to do the talking, and that Mr.
Chodos could be, could sit there but (Mr. Chauvin was) the one that was
to be doing answering and talking" (TR 56). Mr. Heiler testified that
he responded with an explanation to Mr. Chodos about the pink slips and
that they had been destroyed. See TR 69-70. Both Mr. Heiler and Mr.
Hebron denied that Mr. Chodos was told that he could not speak, when the
issue of the pink slips was raised. See TR 70 and 87. And even Mr.
Chodos admitted that he "protest(ed) in a long monologue" about the pink
slips (TR 19), did not let the management officials "get a word in
edgewise" (TR 40), and referred to it as his "dissertation" (TR 20).
10b. As witnesses, Mr. Heiler and Mr. Hebron seemed honest and
detached. They were candid in admitting to inability to recall exactly
what was said at the August 26 interview, but seemed positive that they
had not used the words "shut up," or told Mr. Chodos that he could not
speak up about the pink slips.
10c. Mr. Chodos seemed to be an easily excitable, feisty person, and
resented having to face not one, but two management officials, at the
August 26 interview. He may have misunderstood exactly what the two
management officials were trying to convey to him when they explained
that he could not do the talking for Mr. Chauvin. I find that he was a
less reliable witness, as to the details of the August 26 meeting, than
Mr. Heiler and Mr. Hebron.
10d. Mr. Chauvin seemed to have a good recall of his participation
in the events at the interview of August 26, but vague about that of Mr.
Chodos, particularly as to his part in making objection to the pink
slips.
10e. Based upon the above assessment of the witnesses, and the fact
that Mr. Heiler and Mr. Hebron basically corroborated each other, I have
credited their testimony over that of Mr. Chauvin and Mr. Chodos, where
there has been a conflict about the role allowed Mr. Chodos, at the
August 26 interview. Specifically, I find that Mr. Heiler and Mr.
Hebron did not use the words "shut up" at the August 26 interview, and
allowed Mr. Chodos to discuss the issue of the pink slips at great
length.
11. Immediately preceding the interview with Mr. Chauvin, Mr. Chodos
met several times with Mr. Heiler. The first meeting occurred at about
9:30 a.m. on August 26. Mr. Chodos came into the Jamaica office,
introduced himself, and asked to speak to Mr. Chauvin in private for a
few minutes. Mr. Heiler said "fine" (TR 60). Mr. Chodos and Mr.
Chauvin met for about 10 minutes. Mr. Hebron was apparently not present
at this initial meeting between Mr. Chodos and Mr. Heiler. See TR 60.
12. At the second meeting between Mr. Heiler and Mr. Chodos, before
the interview of Mr. Chauvin began, Mr. Chodos informed Mr. Heiler that
Mr. Chauvin "did not want to attend the meeting" (TR 64) and had
designated Mr. Chodos to speak for him. Mr. Hebron was present at this
meeting. After consulting with the office manager, Mr. Heiler and Mr.
Hebron advised Mr. Chodos that Mr. Chauvin had to attend the meeting and
respond directly to the questions.
13. The interview began at around 10:15. Mr. Heiler considered it
to be an "investigatory interview" because it could have led to a charge
of Mr. Chauvin being AWOL and discipline (TR. 64 and 80). /4/ (In fact,
no AWOL charge or discipline resulted from the interview).
In attendance were Mr. Chodos, Mr. Chauvin, Mr. Heiler and Mr. Hebron.
At the start of the meeting, Mr. Chauvin objected to two management
officials being present; and there was some "exchange" about that (TR
54). Both officials remained. Mr. Chodos or Mr. Chauvin then made a
remark about the interview being a "Spanish inquisition" (TR 82). Mr.
Chauvin also said that:
Stanley is going to do the talking for me. I'll sit here, but
Stanley is going to act in my stead, or do the talking for me.
Mr. Heiler responded that Mr. Chauvin was "the one being
interviewed," and that he had "to do the talking" (TR 54).
14. The first question asked Mr. Chauvin was "would he explain his
whereabouts on the day in question." (TR 67). Mr. Chauvin did not
respond. Mr. Chodos did. Mr. Heiler advised Mr. Chodos that "he could
not answer the questions for Mr. Chauvin" (TR 67). Mr. Chodos "then
said words to the effect that (Mr. Heiler and Mr. Hebron) were denying
Mr. Chauvin his right to representation" (TR. 67). Mr. Heiler explained
that Mr. Chodos was there "to protect Mr. Chouvin's (sic) right and to
give any advice of (sic) council, (sic) and that mr. chauvin had to
answer the questions himself" (tr 67). /5/
15. Continuously thereafter, Mr. Chodos attempted to answer
questions posed to Mr. Chauvin, as the representative of Mr. Chauvin,
and argued his right to do. Mr. Heiler advised Mr. Chodos that, if he
persisted in attempting to answer the questions posed to Mr. Chauvin,
they would "have to terminate the meeting . . . (a)nd if we did so, we
would have to make a decision based upon Mr. Chouvin's (sic) whereabouts
based on the evidence we had" (TR 69).
16. At this point, Mr. Chauvin decided that he would answer the
questions himself. Mr. Chauvin was an articulate, composed witness.
His demeanor as a witness, and his experience as the Union's EEO
Coordinator and Sixth Vice-President for Grievances, indicates that he
would not be cowed by having to answer factual questions in the presence
of his first and second-line supervisors. Mr. Chauvin gave me the
impression of a self-assured, somewhat arrogant, person who was fully
capable of defending and speaking for himself.
17. Mr. Heiler then proceeded with the questioning and asked Mr.
Chauvin "what time did his interview end" and "if he looked at the
clock" (TR 69). At this point Mr. Chauvin mentioned his "pink slips"
(TR 55, 77). (The pink slips are the documents that an interviewer
keeps to show the time that the interview starts and ends). Mr. Heiler
responded that the pink slips had been discarded, since they had been
"tallied up" to get the total time that a person spent interviewing" (TR
70). It is customary to discard the pink slips, once the tally is made
and entered into the office log, which does not show the time the
interviews start and end. Mr. Chodos "strongly objected" to the
destruction of the pink slips (TR 87 and see also TR 55), and said that
there was no case against Mr. Chauvin since there was no evidence of the
time Mr. Chauvin left the interview. Mr. Chodos was not told that he
could not speak, at this point. See findings 10 a and e, supra.
18. At the end of the interview, Mr. Chodos spoke up about the
presence of two management officials being violative of Mr. Chauvin's
rights and a past practice. Mr. Chodos also stated that Mr. Riordan
protested the way labor relations was conducted in the Jamaica office.
The only thing Mr. Chodos was "not permitted to do (at the interview)
was to answer a direct question directed to Mr. Chauvin" (tr 73). The
interview lasted a total of approximately an hour and fifteen minutes.
19. Mr. Heiler testified that at none of the meetings was Mr. Chodos
told that "he could not speak," but only that he "could not speak for
Mr. Chauvin." (tr 77 and see also tr 83 and 87).
20. When asked, on cross examination, how he drew a distinction
between when Mr. Chodos was attempting to "to speak for" Mr. Chauvin and
when he was "speaking as a union representative during the meeting," (TR
77-78), Mr. Heiler replied:
Very simple, if I directed a question to Mr. Chauvin and the
voice I heard was Mr. Chodos, I knew that he was answering the
question for Mr. Chauvin, unless his response was not an answer to
the question. Initially I'd ask Mr. Chauvin, where were you? The
response came from Mr. Chodos, that he was interviewing.
21. All of the questions asked of Mr. Chauvin, during the interview,
were concerned with his actions as a claims representative during the
last seven minutes of his workday on August 19.
No issue is raised as to the investigatory nature of the interview
here at issue, that an employee could have reasonably believed that it
could lead to disciplinary action, or that union representation was
sought.
See finding 13, supra and RBr 2. Clearly, the General Counsel proved
these elements of his case.
The basis upon which the General Counsel presented this case was
that:
Respondent's agents, Heiler and Hebron, prohibited the union
representative from participating or speaking at this examination
of the employee, and attempted to silence the union representative
as he attempted to extract exculpatory evidence to defend the
employee.
See TR 6. Had the credited facts of record supported the General
Counsel, the unfair labor practice charged would have been fully
established; for it is clearly established that a union representative
is allowed an active role at an investigatory interview. See, e.g.
Norfolk Naval Shipyard, 9 FLRA 458, 472-473 (1982); Federal Aviation
Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678-679 and
686-687 (1981); and U.S. Customs Service, Region VII, Los Angeles,
California, 5 FLRA 297, 305-306 (1981). Such a role would include an
attempt to extract exculpatory evidence to defend the employee.
However, the record here shows that the union representative, by his
own admission, engaged in a "long monologue," a "dissertation" indeed,
on the subject of exculpatory evidence, at the interview. See findings
10 and 17, supra. He raised objections to procedures and was heard on
them. He was not denied the right to advise or counsel the employee.
The interview could accurately be described as a confrontational one,
due in some measure to the feisty attitude of the union representative,
who repeatedly insisted on his right to answer the factual questions for
the employee, and who engaged in a long dissertation on one subject
while not letting management agents "get a word in edgewise" (finding 10
a, supra). Also contributory was the early remark by the employee, or
the union representative, comparing the interview to a "Spanish
inquisition" (finding 13, supra). However, the situation here is unlike
that in Norfolk Naval Shipyard, 9 FLRA at 473, where the employee was
caught in the crossfire and was intimated by the aggressiveness of
management's agent. Here, the evidence demonstrates that Mr. Chauvin
was not one whit intimidated by management's agents.
No case has been cited or is known to me which gives the union
representative the one right which was denied to him at the interview
here at issue-- namely, to answer questions for the employee. I note
that, in his brief, the General Counsel states that he neither advocates
nor endorses "the apparent position of the union that its representative
at an investigatory interview may replace the employee and answer
questions for the employee" (GCBr 20).
On such a record, the complaint can only be dismissed for failure to
prove, by a preponderance of the evidence, /6/ the allegations made.
The allegations of the complaint have not been established by the
preponderance of the evidence. Therefore, the complaint should be, and
it hereby is DISMISSED.
/1/ These statutory provisions provide, in pertinent part, as
follows:
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; . . .
or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Sec. 7114. Representation rights and duties . . .
(2) Any exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at-- . . .
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.
/2/ The following abbreviations will be used. "GC" refers to the
exhibits of the General Counsel. "TR" refers to the transcript. "GCBr"
refers to the brief of the General Counsel, and "RBr" to that of
Respondent.
All dates mentioned herein are in 1982, unless otherwise specified.
/3/ Also spelled "Chaauin" in the transcript.
/4/ Counsel for Respondent stated during the hearing, that the August
interview "clearly was an investigatory interview" (TR 31).
/5/ Mr. Chodos denied being told that he could give advice, guidance,
or counsel to Mr. Chauvin. See TR 30. I have credited the testimony of
Mr. Heiler on this point, for the reasons set forth in finding 10b-e,
supra.
/6/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
Daniel H. Green, Representative for Respondent
Kirk Bigelow, Representative for Charging Party
Alfred R. Johnson, Jr., Counsel for the General Counsel, Federal
Labor Relations Authority
34 FLRA-ALJ; Case No. 2-CA-30117 December 5, 1983
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF FIELD OPERATIONS, REGION II, Respondent, and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging
Party/Union
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the "Statute", and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
The charge giving rise to this matter was filed by the American
Federation of Government Employees (AFGE) AFL-CIO (Charging Party/Union)
against the Department of Health and Human Services (DHHS), Social
Security Administration (SSA), Bureau of Field Operations, Region II
(Respondent) on November 22, 1982.
On May 31, 1983, the Acting Regional Director for the Federal Labor
Relations Authority, Region II, issued a Complaint and Notice of Hearing
which was served on all parties to this proceeding by certified mail on
that same date.
On July 18, 1983 the Acting Regional Director for the Federal Labor
Relations Authority issued an Order Consolidating Cases in this matter.
Consolidated therein were Case Nos. 2-CA-30117, 2-CA-30145, 2-CA-30146,
2-CA-30155 and 2-CA-30179.
On August 11, 1983, the Acting Regional Director issued an Order
Severing Cases, Case Nos. 2-CA-30145, 2-CA-30155 and 2-CA-30179.
On August 17, 1983 this matter was heard in New York City. At the
hearing, this case, (2-CA-30117) was severed from Case No. 2-CA-30146.
The complaint in this case alleges that, on or about November 8,
1982, a supervisor at Respondent's Bushwick District Office held an
orientation session for a newly hired bargaining unit employee at which
general conditions of employment were discussed, without prior notice to
the Charging Party/Union or an opportunity to attend; that this session
was a formal discussion within the meaning of 5 U.S.C. 7114(a)(2)(A);
/1/ that on or about November 8, the Operations Officer at the Bushwick
District Office informed the Charging Party/Union that it would not be
permitted to be present at any orientation sessions unless the meeting
involved four or more unit employees; that this policy constituted a
unilateral change of a past practice; and that such acts constituted
unfair labor practices in violation of 5 U.S.C. 7116(a)(1), (5) and (8).
/2/
Respondent admitted the jurisdictional aspects of the complaint;
that it had held the orientation session on or about November 8, 1982;
that it had then informed the Charging Party/Union that it would not be
permitted to be present at any orientation sessions unless the meeting
involved four or more unit employees; and denied all other allegations.
At the hearing, the facts of the case were stipulated by the parties.
The stipulation was received into evidence as Joint Exhibit A.
At the hearing, Respondent's representative, Mr. Green, advised that
the issue in this case was currently pending resolution in three other
stipulated cases and that: "should the parties receive adjudication of
this matter prior to completion of your opinion, we would so notify you
that the(is) has been settled" (Tr. 10). /3/ Mr. Green then stated:
"We would act in accordance with the former decision" (TR 10).
Briefs were filed in this case on October 28, 1983, pursuant to an
order dated September 8 which so extended the briefing time, based upon
a showing of good cause by Respondent, and without objection.
In its brief, Respondent advised that it had received a recommended
decision of Administrative Law Judge Eli Nash, Jr., in a consolidated
case involving Case Numbers 2-CA-30028, 30048 and 30074, (Social
Security Administration and Social Security Administration, Field
Operations, Region II), /4/ and that Respondent had "elected not to file
exceptions" to it and had "accepted his recommendations as dispositive
of the issues" (RBr 1-2).
Respondent requested that "the same or a similar order be entered in
this case" (RBr 2). In anticipation of a request by the General Counsel
for a nationwide-posting order, Respondent argued that such an order
would be "inappropriate" for several reasons (RBr 2). One was that this
case is based upon the limited facts of the stipulation which indicate
that "the now admitted violation occurred only at Respondent's Bushwick
District Office"; that the "only charged party in this case is
Respondent's New York, Field Operations Region"; and that Respondent
has demonstrated its "willingness to accept the decision of Judge Nash
as dispositive of this issue" (RBr 2). Respondent requests that the
scope of any remedy be limited to its Bushwick Office.
The stipulated facts, in Judge Nash's decision, reveal that, in
October and November 1982, at SSA's District Office, in Bridgeton, New
Jersey, and at its Branch Offices in Brickton and Plainfield, New
Jersey, a one-on-one orientation session was held with a new unit
employee by an agent or agents of SSA, without prior notice to Local
2369, in its institutional capacity, and without affording the union an
opportunity to attend. The issues were stated to be whether these
one-on-one sessions were formal discussions within the meaning of 5
U.S.C. 7114(a)(2)(A) and whether failure to give the union appropriate
notice of, or an opportunity to be represented at these sessions,
violated 5 U.S.C. 7116(a)(1), (5) and (8).
Judge Nash concluded that the named violations had occurred, and that
the one-on-one nature of the meetings should not, under 5 U.S.C.
7114(a)(2)(A), alter the outcome. See footnote 3 to his decision.
1. At all times material herein, the Charging Party is and has been
a labor organization within the meaning of Section 7103(a)(4) of the
Statute.
2. At all times material herein, Respondent is and has been an
agency within the meaning of Section 7103(a)(3) of the Statute.
3. At all times material herein, SSA, Bureau of Field Operations,
Region II, has been and is now a constituent entity within DHHS, SSA,
and an agent acting on its behalf.
4. At all times material herein, the following named persons
occupied the positions set forth below, opposite their names:
Morton Weinberg-- District Office Manager, Bushwick District
Office, Bureau of Field Operations, SSA
Claire Rosenfeld-- Operations Officer, Bushwick District,
District Office Operations
June Kircher-- Supervisor, Bushwick District Office
5. At all times material herein, the individuals named above have
been and are now supervisors or management officials as defined in
Sections 7103(a)(10) and (11), respectively, and have been, and are now,
agents of DHHS, SSA, acting on its behalf.
6(a). At all times material herein, AFGE has been and is now the
certified exclusive representative of a consolidated nationwide unit of
certain employees of Respondent, including all employees employed in the
District and Branch offices of SSA in the States of New York and New
Jersey, excluding all managerial personnel, professional employees,
federal employees engaged in personnel work in other than a purely
clerical capacity, guards and supervisors.
(b). At all times material herein, AFGE has delegated to the
National Council of SSA Field Operations Locals (Council) authority to
act as its representative for the purpose of collective bargaining on
behalf of unit employees in SSA, Field Operations, including employees
at Respondent's Bushwick District Office.
(c). At all times material herein, the Council has delegated to
AFGE, Local 3369, AFL-CIO, authority to act as its representative for
the purpose of collective bargaining for certain of Respondent's
employees, including employees at the Bushwick District Office, and has
been recognized by Respondent as such.
7. On or about November 5, 1982, Carolyn Johnson, a new Claims
Development Clerk and a unit employee, at Respondent's Bushwick,
Brooklyn, New York District Office, reported to a pre-scheduled new
employee orientation session which was held in the above office.
Present at this meeting were Ms. Johnson and Ms. Kircher, Ms. Johnson's
first line supervisor. This orientation session was conducted by Ms.
Kircher at her desk which was located on the second floor of the
District Office on the work floor, but several feet away from the desk
of other employees. This session lasted approximately 20 minutes. Ms.
Johnson's attendance was mandatory.
Ms. Kircher's presentation at this session comported with Respondent's
policy for the orientation of new employees. Ms. Kircher used personal
notes for her presentation. The subjects that were covered in this
session included sick and annual leave policy, lateness policy, health
insurance benefits and pamphlets concerning such benefits, educational
opportunities, the time and duration of the office's breaks and lunch
periods, the employee's probationary period, and training that she would
receive for her position. At this session Ms. Kircher also gave to Ms.
Johnson a health insurance pamphlet. The Union did not receive prior
notice of this meeting, in its institutional capacity, and was not
afforded an opportunity to be represented at this meeting.
8. From the period June 30, 1981 to on or about July 12, 1982 /6/
representatives of Local 3369 were allowed to be present at every new
employee orientation session that was conducted at Respondent's
Bushwick, Brooklyn New York District Office. From the period July 12,
1982 to November 5, 1982, the parties are unaware of any orientation
sessions which were conducted at the Bushwick, Brooklyn District Office.
These orientation sessions were similar to the orientation session
conducted on November 5, 1982 (see finding 7, supra) and covered the
same subjects that were discussed in that orientation session. This was
known and allowed by Respondent's Bushwick, Brooklyn, New York District
Office management, which gave the Union advance notice of these
meetings, in its institutional capacity, and gave official time to
representatives of the Union who attended these sessions. There were
approximately 15 to 20 orientation sessions that were given in this
office, during this time period, and, at several of these sessions,
there was only one, or less than four employees present.
9. On or about November 8, 1982 Charles Fahlikman, the Local
Representative for the Bushwick District Office requested that the Union
be allowed to be present and be represented at Ms. Johnson's orientation
session. This request was made to Claire Rosenfeld, the Operations
Officer of the Office. Ms. Rosenfeld replied that Ms. Johnson had
received her orientation session on or about November 5. Ms. Rosenfeld
further stated that the Union would not be permitted to be present at
any orientation sessions unless the meeting involved four or more unit
employees. This change in policy was implemented without prior notice
to the Union or affording it an opportunity to request negotiations over
this subject.
10. It is undisputed that "the issue in this case, concerning the
number of employees involved at a new employee orientation session is
the result of a nationwide decision taken by the Social Security
Administration, which in effect states that a one on one orientation
session between a Supervisor and a new employee is not considered a
formal discussion" (TR 11 and see TR 12).
The parties have stipulated that this case presents the following
issues:
A. Whether Respondent's above found one-on-one orientation sessions
for new employees are formal discussions within the meaning of 5 U.S.C.
7114(a)(2)(A), and whether Respondent's failure to give the Charging
Party appropriate notice of or an opportunity to be represented at these
meetings, in its institutional capacity, violated 5 U.S.C. 7116(a)(1),
(5) and (8), as alleged.
B. Whether Respondent violated 5 U.S.C. 7116(a)(1) and (5), as
alleged, by its unilateral implementation of a policy that the Union
could not be present at any orientation session unless the meeting
involved four or more unit employees.
A. In view of Respondent's concession that the November 5, 1982
orientation session, held between one newly-hired, bargaining-unit
employee and her first-line supervisor, was a violation of the Statute
(see RBr 1-2), little need be said of the first issue stipulated by the
parties. This Authority ruled, in 1981, that SSA's orientation sessions
for newly-hired unit employees were "formal discussions" within the
meaning of 5 U.S.C. 7114(a)(2)(A). See Department of Health, Education
and Welfare, Region IV, Atlanta, Georgia and Department of Health and
Human Services, Region IV, Atlanta, Georgia, 5 FLRA 458 (April 1981),
hereinafter referred to as "SSA Region IV". In SSA Region IV, the
Authority ruled that, at such sessions, "the Union is entitled to be
represented at them insofar as, they involve any member of its
bargaining unit" (5 FLRA at 460). Although an average of 15 or 16 unit
employees was present at the sessions involved in SSA Region IV, the
Authority's use of the word "any" was probably in recognition of the
explicit statutory language of 5 U.S.C. 7114(a)(2)(A) that its mandate
applies whenever "one or more" employees engage in a formal discussion
with an agency representative or representatives.
B. Respondent's concession that a "violation" of the Statute had
occurred "at (its) Bushwick District Office" (RBr 2), appears to be
limited to the issue decided in SSA Region II, namely that already
discussed above in part A.
See RBr 1-2 and OALJ 83-133, at page 5. In this case, the General
Counsel has also established, by the preponderance of the evidence, /7/
that Respondent committed an unfair labor practice when it unilaterally
changed a past practice of permitting Local 3369 to be present at all
orientation sessions, including those participated in by less than four
unit employees.
It is settled case law in the Federal sector that an agency may not
unilaterally change conditions of employment. Any such changes require
advance notification to the bargaining agent and, upon request,
negotiations with such agent in respect thereto. Further, terms and
conditions of employment may be established by practice, as well as some
form of tacit or informal agreement; and these terms also may not be
altered absent good faith bargaining. /8/
It is also true that to constitute the establishment, by practice, of
a term and condition of employment, the practice must be consistently
exercised for an extended period of time with the agency's knowledge and
condonation. /9/
Applying these principles to the instant case, it is clear that the
Respondent and the Charging Party had an established past practice of
allowing representatives of the Charging Party's Local 3369 to be
present at orientation sessions that were conducted at Respondent's
Bushwick District Office, without consideration to the number of
employees present at the session. This practice existed for a
significant period of time and, during this period, Respondent gave
approximately 15 to 20 orientation sessions at this office. At several
of these sessions there was only one employee, or less than four
employees. This practice was known and condoned by responsible Bushwick
District Office management. Therefore, the Respondent's unilateral
implementation of a new policy on November 8, 1982, that the Union could
not be present at orientation sessions unless there were more than four
employees present, constituted a change in a term or condition of
employment which had been established through a past practice. Such act
constitutes a violation of 5 U.S.C. 7116(a)(1) and (5), as alleged.
The General Counsel seeks a nationwide cease-and-desist order and a
nationwide posting of a notice to all employees. See GCBr 14. At the
time the General Counsel sought such relief, he was unaware that
Respondent had decided to concede that a violation of Sections 7116(a)
(1), (5) and (8) had occurred at its Bushwick District Office, based
upon Judge Nash's decision in a similar case, and that Respondent had
accepted Judge Nash's decision in a similar case, and that Respondent
had accepted Judge Nash's recommendations as dispositive of the issue.
See RBr 2. Judge Nash's decision issued after the hearing in this case.
At the hearing, Counsel for Respondent advised all parties of the
pendency of similar issues in cases already stipulated to an
administrative law judge (Judge Nash) and of Respondent's intent to act
"in accordance" with any decision received prior to the adjudication of
this case.
Respondent has acted responsibly and promptly in this matter; and I
find no reason to believe that Respondent will test, elsewhere, the
legal positions it has taken in these cases. Accordingly, a cease and
desist and posting order effective "only where the unlawful conduct was
shown to have occurred will best effectuate the purposes and policies of
the Statute". See National Treasury Employees Union, 10 FLRA No. 91, 10
FLRA 519 at 522 (1982).
Respondent has committed unfair labor practices at its Bushwick
District Office, in violation of 5 U.S.C. 7116(a)(1), (5) and (8), as
alleged in the complaint.
Accordingly, and pursuant to 5 U.S.C. 7118 and 5 CFR 2423.29, the
Authority hereby orders that Department of Health and Human Services,
Bureau of Field Operations, Region II, shall, at its Bushwick District
Office,
1. Cease and desist from:
(a) Refusing to give the American Federation of Government
Employees, AFL-CIO, the opportunity to be represented at all
orientation sessions for new employees conducted by its
representatives, which are attended by members of the bargaining
unit represented by the American Federation of Government
Employees, and which constitute formal discussions within the
meaning of 5 U.S.C. 7114(a)(2)(A).
(b) Adhering to a position that orientation sessions for less
than four unit employees, which are otherwise formal discussions
within the meaning of 5 U.S.C. 7114(a)(2)(A), do not require prior
notice to the Union and an opportunity to be represented.
(c) In any like or related manner, failing or refusing to
comply with any provision of the Federal Service Labor-Management
Relations Statute.
(d) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise of any right
under the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Give the American Federation of Government Employees,
AFL-CIO, prior notice of and the opportunity to be represented at
all new employee orientation sessions which involve employees in
the bargaining unit, including those attended by less than four
employees, and which constitute formal discussions within the
meaning of 5 U.S.C. 7114(a)(2)(A).
(b) Post, at its Bushwick District Office, 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 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 official shall
take reasonable steps to insure that said notices are not altered,
defaced or covered by any other material.
(c) Pursuant to 5 CFR 2423.30, notify the Regional Director,
Region II, 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.
/1/ 5 U.S.C. 7114(a) provides, in pertinent part, that:
Sec. 7114. Representation rights and duties . . .
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at-- . . .
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment or . . .
/2/ 5 U.S.C. 7116(a) provides, in pertinent part, that:
(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; . . . (or)
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ "TR" refers to the transcript. Other abbreviations to be used
herein are as follows. "GCBr" refers to the brief of the General
Counsel and "RBr" to that of Respondent.
/4/ This case will be referred to herein as the SSA Region II case.
It was decided on September 16, 1983 and is numbered OALJ 83-133.
/5/ Except where otherwise noted, all findings are based upon the
stipulated facts in Joint Exhibit A.
/6/ In his brief, the General Counsel moved to correct page 4,
paragraph 11 of the Stipulation of Facts in that the first sentence
should state the date July 12, 1982 rather than the date July 12, 1983.
Respondent has filed no objection. Accordingly, the motion is granted.
/7/ This is the statutory burden of proof. See 5 U.S.C. 7118(a) (7)
and (8).
/8/ See, e.g. Department of the Navy, Naval Underwater Systems
Center, Newport Naval Base, 3 FLRA 413 at 414 (1980); United States
Department of Justice, United States Immigration and Naturalization
Service, 9 FLRA 253 at 255-257 (1982).
/9/ See cases cited in footnote 8.
Daniel H. Green, Representative for Respondent
Douglas Chauvin, Representative for Charging Party/Union
Alfred R. Johnson, Jr., Attorney for the General Counsel, Federal
Labor Relations Authority
WE WILL NOT conduct orientation sessions with newly hired unit
employees concerning general terms and conditions of employment in our
Bushwick District Office when such meetings constitute formal
discussions, without first notifying the American Federation of
Government Employees, Local 3369 and affording it an opportunity to be
represented at any such meetings.
WE WILL NOT in any like or related manner, fail or refuse to comply
with any provision of the Federal Service Labor-Management Relations
Statute.
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 Labor-Management Relations Statute.
WE WILL NOT maintain or enforce a position that the Union may not be
present at orientation sessions for unit employees, which are otherwise
formal discussions within the meaning of Section 7114(a)(2)(A) of the
Statute, because said sessions are attended by less than four employees.
WE WILL notify the American Federation of Government Employees,
AFL-CIO prior to conducting orientation meetings with newly hired unit
employees, which are formal discussions within the meaning of Section
7114(a)(2)(A), and afford the union an opportunity to be represented at
such meetings.
. . .
(Agency or Activity)
Dated: . . . (Signature) . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is: 26
Federal Plaza, Room 24-102, New York, New York 10278, and whose
telephone number is 212-264-4934.
34 FLRA-ALJ; Case No. 2-CA-20559 November 29, 1983
ENVIRONMENTAL PROTECTION AGENCY and ENVIRONMENTAL PROTECTION AGENCY,
REGION II, Respondent, and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to an Amended Complaint and Notice of Hearing issued on
February 15, 1983 by the Regional Director for the Federal Labor
Relations Authority, New York, New York, a hearing was held before the
undersigned on April 13, 1983 at New York, New York.
This is a proceeding under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It is based on a first
amended charge filed on October 26, 1983 by American Federation of
Government Employees, National EPA Council and Local 3911 (herein called
the Union) against Environmental Protection Agency (EPA) and
Environmental Protection Agency, Region II (herein called Respondent).
The Amended Complaint alleged, in substance, that on or about July
13, 1982 Respondent notified certain employees within the Grants
Administration Branch that, effective on July 25, 1982, the Compressed
Work Week Schedule for that Branch would be terminated for an indefinite
period; that on July 25, 1982 Respondent unilaterally suspended said
Schedule in the Grants Administration Branch without affording the Union
an opportunity to bargain on the subject-- all in violation of Sections
7116(a)(1) and (5) of the Statute.
Respondent filed its Answer to the Amended Complaint dated March 9,
1983 wherein it denied the essential allegations, as aforesaid, as well
as the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
1. A Certification for Inclusion In Existing Unit was issued on
April 12, 1982 by the Regional Director, Federal Labor Relations
Authority, New York, New York. Pursuant thereto it was certified that
"all professional employees of Region II, Environmental Protection
Agency, located at 26 Federal Plaza, New York, New York" be included in
the certified unit represented by American Federation of Government
Employees, AFL-CIO. /1/
2. At all time material herein, the American Federation of
Government Employees, AFL-CIO, has designated the National EPA Council
(AFGE Council No. 238) as its agent for the purposes of negotiating all
matters which are national in scope and appropriate under the Statute,
including the negotiation and renegotiation of a nationwide master
agreement.
3. At all times material herein, Joseph F. Musil, Jr., Acting
President of AFGE Local 3911, has been the designated agent of the
National EPA Council on all matters involving bargaining unit employees
located in EPA Region II.
4. Record facts show that Respondent's Grants Administration Branch
is responsible for the administrative and financial aspects of all
grants awarded in EPA Region II. Financial assistance to state and
local government, amounting to billions of dollars through grants for
construction of waste water treatment plants, sewer pipes, air pollution
programs, et. al, are handled through EPA. Thousands of projects are
involved in different aspects of environmental projects. Further,
certain funds must be obligated within a two year period or will be lost
to a particular state and will be realloted to other states.
5. The Grants Administration Branch, operating on a federal fiscal
year, works closely with the states to assist them in meeting their
goals of obligating monies and getting plants under construction.
Crunch periods came in the last quarter of the fiscal year, but
particularly in the months of August and September. In 1982 the Branch
had close to a billion dollars to be obligated in construction grants
for New York, Puerto Rico and Virgin Islands. Moreover, about 20
million dollars had to be obligated for eight to ten different program
areas: air, water, solid waste, etc. All of these matters, according
to the Branch Chief, Helen Beggun, had to be completed and signed off by
September 30, 1982 and thus this was deemed a crunch period.
6. The Environmental Protection Agency Work Schedule Manual,
containing a Compressed Work Schedules Manual, has been in existence
since January, 1980. Chapter 3, Paragraph 1 thereof provides for two
compressed work schedules in Region II. This involved 80 hours during
five days in one week and four days in the next one, a total of nine
days. It is also provided, under Chapter 3, Paragraph 5, which is
entitled TEMPORARY REVERSION TO REGULAR SCHEDULE, that compressed
schedules may have to be adjusted from time to time. As stated therein
this may be necessary to meet the exigencies of the public business or
the requirement that employees work the longer hours of the compressed
days.
7. The Compressed Work Schedule (CWS) was established in 1979, in
Region II, which has over 400 employees. Under the regular schedule
employees worked from 8 a.m. to 4:30 p.m. In a two week period they
worked 10 days for a total of 80 hours, plus overtime on occasion.
During the CWS the employee worked 80 hours in a two week period, but he
was on duty for 9 days and received a day off to tend to personal chores
or tasks. Further, the starting and quitting times for the employees
were different under the CWS.
8. Since 1980 the Branch followed a pattern of reverting to straight
time, and cancelling the compressed work week schedule, during August
and September v. October of each year.
This was due to the grants crunch, as heretofore described, and the
concomitant need to have more people there more of the time. About 90%
of overtime is performed in the Branch during the last two months of the
fiscal year. The reversion to regular schedules-- and thus going off
the compressed work week schedule-- has generally lasted for several
months. Thereafter, usually in October, /2/ the Branch resumed the
compressed work week schedule which existed before the reversion.
9. Helen Beggun testified, and I find, that she decided to implement
the reversion to regular schedule in 1982, and thus go off the
compressed work week schedule, a little earlier than usual. Several
factors induced this decision, to wit: the loss of several employees in
the Branch, that the work load did not diminish, and the onset of
vacation time at a time when much had to be accomplished. There were,
in July, 1982, about 12 individuals employed in the Branch, and six of
them had been on the compressed work week schedule.
10. Under date of July 13, 1982 Beggun sent a memo to Branch staff
as follows:
"Due to the increased use of Annual Leave during the summer
months, it is increasingly difficult for us to maintain adequate
coverage of the office during this period. Therefore, effective
with the payperiod beginning July 25, 1982, I am cancelling the
Compressed Workweek Schedule for GRA until after the "Grant
Crunch" period in September."
11. In a letter dated July 14, 1982 Union representative Joseph F.
Musil, Jr. wrote Beggun that he learned of an intention to implement a
unilateral change in the work hours of bargaining unit employees. Musil
stated the Union requested bargaining on the issue before such
implementation, and that any refusal by management or effectuation
without negotiation would result in unfair labor practice charges being
filed.
12. Eugene J. Viti replied thereto in a letter dated July 20, 1982.
The management official referred Musil to the Compressed Work Schedules
Manual (chapter 3, paragraph 5) wherein it states that a supervisor may
adjust work schedules to meet business exigencies. Viti further stated
that this provision has been applied in the past, and therefore Beggun's
actions in the branch did not represent a change in policies, practices
or working conditions. He also informed the Union representative that
Beggun was advised to implement the temporary cessation of the
compressed work week schedule in that Branch on July 25, 1982.
13. Respondent's Regional Administrator, Jacqueline Schafer, sent a
memo to employees dated July 23, 1982 entitled "Continuation of
Compressed Work Schedules." The Administrator stated therein that
Congress had just passed, and the President signed, a three-year
authorization to continue alternative work schedules; that agencies are
required to assess the impact of such a schedule; that she has
determined the continuation of compressed schedules is in the best
interest of the Region, and it will continue beyond July 23, 1982.
14. The reversion to the regular schedule did occur, and was
implemented on, July 25, 1982. Thereafter, on September 30, 1982 the
employees returned to the compressed workweek schedule.
The General Counsel takes the position that Respondent unilaterally
effected a change in working conditions by suspending its compressed
workweek schedule for an indefinite period in the Grants Administration
Branch of EPA, Region 2. It argues, further, that the employer may not
rely on a past practice of unilaterally suspending the CWS since the
Union was not a party to such practice. Since the Union was not
certified as the representative of the New York employees until April
15, 1982, the General Counsel insists there could only have been a
practice since that date. Such a short period of time, it is insisted,
does not comply with the established principal of law in the public
sector that a practice must have existed consistently and for an
extended period of time to become a condition of employment.
While I have no problem with accepting the General Counsel's view
that a compressed work schedule is a bargainable matter, I cannot
subscribe to its position that no past practice with regard thereto may
be deemed to have existed at the Branch because such practice antedated
the Union's representative status. In support of that position General
Counsel cites Social Security Administration, Mid-America Service
Center, Kansas City, Missouri, 9 FLRA No. 33 (1982).
It was stated therein that to become a condition of employment a
practice must be consistently exercised for an extended period, and
followed by both parties, or followed by one party and not challenged by
the other. Accordingly, maintains the General Counsel, no past practice
re suspending the CWS may be found to have existed herein because the
Union was not a party to such practice.
In my opinion the foregoing contention misconstrues the rule of law
as enunciated in regard to the establishment of a past practice. The
cited case, as well as others embracing the rule, involved situations
where the union was the representative during the existence of the
practice. Hence, reference to the 'parties' having followed the
practice was pertinent because the union had been the bargaining agent
at the time. However, I do not conclude that no past practice may
exist, with respect to a condition of employment, unless the union was
the bargaining representative. Stated otherwise, I find no support for
the contention that a condition of employment, i.e. an established past
practice, may only date from the time where the union becomes the
bargaining agent. A condition of employment does not require, as a sine
quo non to its existence, that the union be a party to its
establishment. The practice may have ripened into a condition of
employment long before the bargaining agent arrived on the scene. Its
existence does not turn on the sanction of the union. /4/
Turning to the case at bar, record facts disclose that during the
past three years Respondent has maintained its compressed work
schedules; that in and during the last fiscal quarter of each year it
reverted to straight time for several months-- thus suspending the CWS--
and there resumed the compressed work week schedules. This pattern did
not change in 1982. Moreover, I am persuaded that this practice, as
established by Respondent, has existed for a sufficient length of time
in a consistent manner in Region II. To that extent, it may be properly
deemed a condition of employment.
While General Counsel alludes to the fact that the suspension of the
CWS in 1982 occurred in late July, rather than in August as theretofore,
this factor does not, in my opinion, warrant the conclusion that the
practice was thus changed. The exigencies of the Branch, which were
always present at the end of the fiscal year, are a reasonable
explanation for the decision by management to suspend the CWS a few
weeks earlier. Moreover, I do not conclude, as suggested by General
Counsel, that the CWS was terminated in July or cancelled for an
indeterminate period.
The memo from Beggun on July 13, 1983 to the Branch staff specifically
stated that it was being cancelled until after the Grant Crunch period
in September.
Thus, although the Authority has embraced the doctrine that no
unilateral change may be effected by an agency without notifying the
bargaining agent and affording it the opportunity to bargain therein, I
am satisfied that Respondent did not change its past practice regarding
the compressed work schedule. Accordingly, no obligation was imposed
upon the agency to notify the Union, or require it to bargain with the
Union as to its actions on July 25, 1982. /5/ In view of the foregoing,
I am constrained to conclude Respondent did not violate Sections
7116(a)(1) and (6) of the Statute as alleged; and, further, it is
recommended that the Amended Complaint be dismissed.
Having concluded that Respondent did not violate Sections 7116(a)(1)
and (6) of the Statute, it is recommended that the Authority adopt the
following order:
It is hereby ordered that the Amended Complaint be, and the same
hereby is, DISMISSED.
/1/ A Certification for Inclusion In Existing Unit was also issued on
April 12, 1982 by the New York Regional Director. It included all
non-professional employees of Region II, Environmental Protection Agency
located at 26 Federal Plaza, New York, New York in a certified unit
represented by said Union. Both previous certifications involved
employees at locations in other states so as to be national in scope.
/2/ While Personnel Officer Eugene J. Viti testified the reversion
could last an indefinite time into the future, the return to the
compressed work schedule has always occurred within a few months.
/3/ Prior to the hearing Respondent filed a Motion to Dismiss the
Complaint as to the Environmental Protection Agency. The Motion was
based on the contention that the EPA is not a proper party since no acts
were committed by its agents. The Region, it is argued, is an
independent entity and there is no showing that the activity was acting
in a ministerial capacity. General Counsel filed its Opposition to the
Motion to Dismiss, and on April 7, 1982 the Regional Director, Region II
referred the motion to the Chief Administrative Law Judge. No
determination having been made prior to the hearing, Respondent renewed
its Motion at the hearing. In view of the ultimate disposition herein,
the undersigned does not consider it necessary to rule on the Motion to
Dismiss as to the parent agency.
/4/ Apart from these conclusions, the bargaining representative could
properly request negotiations re the compressed work schedule.
/5/ As heretofore indicated, the bargaining agent would always retain
the right to request negotiations on the CWS and propose changes or
modifications in regard thereto. Nevertheless, the alleged violation
herein, predicated on a refusal to bargain, concerns a unilateral change
in the suspension of the compressed work schedule. The Amended
Complaint so alleges, and it specifically refers to Respondent having
violated Sections 7116(a)(1) and (5) based on such change in past
practice. Thus, I conclude the Amended Complaint would not support a
conclusion that Respondent refused to bargain generally on the CWS.
Moreover, General Counsel has not so contended nor posited such theory.
Andrew J. Moran, Esq., For the Respondent
Allan W. Stadtmauer, Esq., Deborah A. Krane, Esq., For the General
Counsel
Joseph F. Musil, Jr., For the Charging Party
34 FLRA-ALJ; Case No. 1-CA-30069 December 20, 1983
VETERANS ADMINISTRATION MEDICAL CENTER, (PROVIDENCE, RHODE ISLAND),
Respondent, and LIUNA, HEALTH CARE DIVISION, Local 1056, AFL-CIO,
Charging Party
Before: FRANCIS E. DOWD, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein the Statute, Chapter 71 of Title 5 of the U.S.
Code, 5 U.S.C. 7101 et seq. It was instituted by the issuance of a
Complaint and Notice of Hearing on March 31, 1983, by the Regional
Director of the First Region of the Federal Labor Relations Authority.
The Complaint was issued following an investigation of a charge filed on
January 5, 1983 by LIUNA, Health Care Division, Local 1056, AFL-CIO,
herein the Union, against Veterans Administration Medical Center
(Providence, Rhode Island), herein the Respondent.
The Complaint alleges that Respondent violated Section 7116(a)(1) and
(2) by terminating the employment of Harry R. Humecky because he engaged
in protected activity within the meaning of Section 7102 of the Statute.
Respondent denies any statutory violation, contends that the General
Counsel has not established a prima facie case of discrimination, and
asserts that, in any event, it has carried its burden under the Mt.
Healthy Test /1/ of showing that it had a legitimate basis for
terminating Humecky and it alone would have resulted in his discharge.
A hearing was held in Providence, Rhode Island at which the parties
were represented by counsel and afforded full opportunity to adduce
evidence and call, examine, and cross-examine witnesses and argue
orally. Briefs filed by Respondent, Charging Party and the General
Counsel have been duly considered.
Upon consideration of the entire record /2/ in this case, including
my evaluation of the testimony and evidence presented at the hearing,
and from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
1. Respondent is an agency and the Union is a labor organization
within the meaning of Section 7103(a)(3) and 7103(a)(4), respectively.
2. Harry R. Humecky is an employee /3/ within the meaning of Section
7103(a)(2), and the following persons are supervisors and/or agents of
Respondent at its Providence, Rhode Island facility:
John G. Munro, Jr. Chief Personnel Service
Anthony B. Monteleone Chief, Pharmacy Service
Richard L. Terpolilli Assistant Chief, Pharmacy Service
3. The Union represents all nonprofessional employees in the
pharmacy service, including clerk-typists, secretaries, pharmacy
technicians and clerks. Frank Ennis, a respiratory therapist employed
by Respondent, was the Union's business manager during the time of
Humecky's employment.
4. Humecky began working for Respondent as a pharmacy clerk in April
1982. Apparently this was a temporary appointment. Thereafter, on
August 22, 1982, he was given an expected appointment as a GS-3 Clerk
subject to a one-year trial period. The "excepted" nature of the
appointment made him similar to (but not quite the same as) a
probationary employee. His development plan (G.C. Exh. No. 2) indicates
that his appointment was subject to making satisfactory progress in
developing the following skills:
1. Understand/maintain eligibility data and pharmacy
regulations.
2. Maintain correct filing and retrieving of outpatient
prescriptions.
3. Assist and perform in all typing duties i.e. Mail Franks,
Prescription Labels.
4. Greeting the public over the telephone with tact,
diplomacy, consideration and courtesy.
5. Greeting the public at the pharmacy window(s) with tact,
diplomacy, consideration and courtesy.
During his temporary appointment, Humecky worked the 8:00am-- 4:30pm
shift. This was changed to 9:00am-- 5:30pm when he began the trial
period of his expected appointment. This change is significant because
he had a new duty to perform during the 4:30pm-- 5:30pm time period,
namely, doing the end-of-the-day filing of prescription folders in
addition to his other duties. Apparently it was not expected that all
folders could be filed at that time because Serena Conley regularly
completed this task the first thing each morning when she came to work
at 7:00am. /4/
5. There were several clerks employed in the Pharmacy Service. The
Assistant Chief of the Pharmacy Service, Richard Terpolilli, supervised
both the outpatient and inpatient sides of the pharmacy, and thus was
the immediate supervisor of the clerks, including Humecky. Terpolilli,
however, spent most of his working time in the inpatient side, and
therefore used Ken Wiberg, the senior clerk, as a lead person for the
work done by the clerks in the outpatient pharmacy. In Wiberg's
absence, Serena Conley filled in for him; otherwise, she worked
primarily on the inpatient side of the pharmacy.
6. The inpatient pharmacy and the outpatient pharmacy are located
across the hall from each other in two separate enclosed areas. The
hallway or corridor between the two pharmacies is equipped with chairs
for patients who are waiting for their prescriptions to be filled. This
waiting area is also referred to as the patient's lounge and it is
equipped with a TV set. Patients obtain their prescriptions at a
dispensing window and it is through this window that they can observe
employees at work in the pharmacy. Therefore, if any employees were
eating or drinking while on duty, they could easily be observed by
patients, and this might not present a good image to the public. For
this reason, Respondent had rules against drinking and eating in the
pharmacy. The rule also applied to the patient's lounge. /5/
7. Specific Complaints About Humecky's Conduct and Attitude
a. During the week of August 9, Humecky was rude and impolite to a
patient who was attempting to have his prescription filled. The
patient, Albert Verrette, testified at the hearing and I credit his
testimony. (See also paragraph 1.a of G.C. Exh. No. 7). He promptly
complained about it to a supervisor (Monteleone) who apologized for
Humecky's actions and attempted to calm the patient down.
Ken Wiberg did not witness this "card-throwing" incident, but he heard
the patient and was present when Monteleone talked to Humecky about the
incident.
b. During the week of August 9, a female patient, Theresa Bowker,
complained to Wiberg about Humecky's intimidating conduct. She said she
was afraid to pick up her prescription while he was at the dispensing
window. Wiberg, who testified "I know the woman was scared," mentioned
this to Monteleone who counseled Humecky in Wiberg's presence. (See
paragraph 1.a.(2) of G.C. Exh. 7). According to Monteleone, Humecky was
defensive during the counseling and not appear to be remorseful.
c. On September 3, Terpolilli observed Humecky taking his lunch from
the refrigerator at 4:00pm. Terpolilli attempted to utilize this
opportunity to admonish Humecky about the importance of adhering to
lunch and break schedules. Although other clerks had apparently
complained to Terpolilli about this matter, Terpolilli hadn't seen fit
to mention it until this particular incident arose. Terpolilli's
testimony (Tr. 189-191) on this point is credited. (See paragraphs 2.a.
and b. of G.C. Exh. No. 7.)
d. In early October, Terpolilli had occasion to remind all clerks of
the importance of properly filing patient's prescription folders. (Tr.
191-192). Humecky's response was to deny any misfiling, even though he
had not been specifically singled out. Terpolilli pointed out that he
was not accusing him. The truth, of course, is exactly what Humecky
thought, i.e., he was suspected of doing the misfiling but no one could
prove it. All they knew was that the problem with misfiling started
after Humecky changed shifts and was given this additional
responsibility. (See paragraph 2.c. of G.C. Exh. No. 7.)
e. During the latter part of October, senior clerk Wiberg came to
Terpolilli and said "I've got to get out of here" and asked for annual
leave. Terpolilli inquired why and was told by Wiberg "I can't work
with Harry anymore." In response to Terpolilli's questioning-- which
lasted almost an hour-- he poured out his difficulties in working with
Humecky. I credit the testimony of Wiberg and Terpolilli with respect
to this incident, but rather than summarize it in its entirety, I
believe it's sufficient to merely conclude that it more than
substantiates paragraph 2.d. of G.C. Exh. No. 7 which, in pertinent
part, states as follows: "When the clerk was questioned he said the man
is always right, you can't talk to him, he knows all the answers, he is
defensive and terse in his responses-- just difficult to deal with." In
my opinion the phrase "difficult to deal with" fairly describes
Humecky's behavior towards his colleagues.
As Wiberg also testified, Humecky did not take kindly to criticism or
correction from anyone and, it appears to me, that this was particularly
true when it came from clerks like himself. Whether the reason for this
was based upon an age difference or because of his long military service
(from which he was retired), is not relevant.
The point is that it was in connection with this incident that Humecky--
who by now had been asked by Terpolilli to join the conversation--
inquired as to where he stood with respect to the other clerical help.
Terpolilli responded that, as the newest employee, he was at the bottom
of the list in seniority. To make a long story short, this incident
resulted in Terpolilli designating both Wiberg and Conley as
"coordinators" so that it was clear to Humecky that they were acting as
a conduit from Terpolilli whenever they gave him any instructions. As
far as Terpolilli was concerned, the title did not actually give Wiberg
any new duties as he always had been in charge of subordinate clerical
help. From the foregoing it is clear to me that Humecky did not have
any genuine doubt as to the role of Wiberg and Conley; he simply did
not like to take orders. This will become even more clear from a
recitation of subsequent events.
It was also in October that Wiberg, who used to play golf and
raquetball with Humecky, went to a pharmacist friend of Humecky's and
asked him to "have a talk with Harry and tell him I thought he was
walking on egg shells."
8. The Decision to Terminate Humecky
On approximately November 3 when Monteleone returned from vacation,
Terpolilli told him about the meeting in which Wiberg was so upset with
Humecky that he wanted to leave work. Terpolilli credibly testified
that he recommended Humecky's termination. Monteleone said he was
inclined to agree but would think about it over the weekend. On or
about Monday, November 8, they both agreed to recommend Humecky's
termination and a meeting with personnel was arranged. The approaching
holidays (Christmas) and the fact that Humecky had applied for positions
/6/ outside of the pharmacy were two factors, according to Terpolilli,
for delaying any action or termination. Monteleone apparently had
responsibility for preparing a formal written recommendation of
termination. Although he started working on it in early November,
Monteleone testified that for the most part it was written from November
18 on.
9. The Events of November 17
a. When Humecky arrived at work, Wiberg told him that he had been
instructed by Terpolilli to tell Humecky that he was not to take his
coffee breaks in the patient's lounge. The lounge (or waiting room) was
located adjacent to the pharmacy.
Humecky apparently took umbrage at this criticism and, according to his
own testimony, stated as follows: "I told Mr. Wiberg that since there
was no regulation or policy prohibiting me from watching TV on my own
time, my break time, I felt that neither he nor Mr. Monteleone nor Mr.
Terpolilli had the authority to tell me that I couldn't watch TV on my
own time."
b. Shortly after the preceding conversation with Wiberg, Humecky
called Business Manager Frank Ennis and set up a meeting with him at
noon the same day. When they met, /7/ Humecky complained that he was
being "harrassed by both Mr. Terpolilli and some of the other people
within the pharmacy. He cited the incident occurring earlier that day
about not being permitted to watch TV in the patient's lounge. He told
him of Terpolilli's prior instruction to identify himself when answering
the telephone. He also questioned whether his so-called coordinators,
Wiberg and Conley, had any official status to give him instructions on
behalf of Terpolilli. Ennis testified that Humecky complained of being
"harrassed" with respect to (1) lunch breaks, (2) coordinators, and (3)
where and when he could take his coffee breaks. Humecky explained that
he was a probationary employee and Ennis replied that he had handled
lots of grievances for probationary employees, and that he would try to
resolve Humecky's problems in a friendly atmosphere.
c. On the same day Terpolilli asked Wiberg if he had conveyed to
Humecky his instruction about watching television. Wiberg replied that
he had delivered the message, that Humecky was upset about it, and that
he thought Humecky had gone to or was going to the Union. The latter
conclusion was based upon the fact that he had seen Humecky talking to
Frank Ennis. Thus, at the hearing Wiberg quoted Terpolilli as saying
"if Harry wanted to talk to somebody that's okay, but it is my policy."
The foregoing testimony was, in Wiberg's opinion, basically the same as
his prehearing statement in which he stated that "Terpolilli said to me
that he set the policies and rules in the pharmacy and that if Humecky
did not like it, that was Humecky's problem." Contrary to the General
Counsel's request, I am unable to infer from this that Terpolilli had
animosity towards the Union. Nor am I able to conclude that Terpolilli
viewed Humecky's "complaint to Ennis" as a challenge to Terpolilli's
authority to set the rules and policies of the pharmacy. On the
contrary Humecky's own testimony indicates that before he even went to
Ennis that he himself was questioning the authority of either Monteleone
or Terpolilli "to tell me that I couldn't watch TV on my own time."
10. The next day, November 18, Ennis approached Tony Monteleone in
the canteen and requested a meeting with him and Terpolilli to discuss
Harry Humecky. /8/ According to Ennis, Monteleone replied "fine, no
problem." Thereafter, on a date uncertain, Ennis and Monteleone set up a
meeting for the day after Thanksgiving. The meeting was subsequently
cancelled because a pharmacist was on leave and the pharmacy was short
of staff. /9/
11. On November 19 Humecky got some coffee at the canteen and
returned with it to the pharmacy notwithstanding a rule against drinking
coffee in the pharmacy. Monteleone happened to be there at the time and
credibly testified that "as soon as he spotted me he grabbed the cup and
walked out into . . . the patient waiting area. He went into the
doorway and had the door partly open and I did see him sip the coffee
there." /10/ Monteleone confronted him and asked if he had been present
at a meeting in which employees were instructed not to eat, drink, or
smoke in the pharmacy. Humecky acknowledged that he had been present.
Monteleone then said he'd just observed him drinking coffee. Humecky
replied that he had not violated any instruction because it only applied
to the pharmacy and not the adjacent waiting area. Further, Humecky
advised Monteleone that "unless there was a policy prohibiting me from
eating, drinking or even smoking in the waiting area I could pretty well
do what I wanted to on my own time." Monteleone, who Humecky said was
normally a very calm person, got "a little bit angry" and "upset", and
"his face got red" and told Humecky "to do what I wanted to, but that he
(Monteleone) wouldn't forget the incident." Up until this point in time,
Monteleone had only worked "sporadically in between my other duties on
the memorandum recommending Humecky's termination. In my opinion, it
was this particular incident-- which Monteleone regarded as
insubordination-- that gave impetus to his completing the memorandum
recommending Humecky's termination. Contrary to the General Counsel's
contention, I am unable to infer that Monteleone's real reason was to
retaliate against Humecky because he sought the Union's assistance.
Nor can I conclude that Monteleone expressed hostility towards Humecky.
On the contrary, if anyone could have been described as hostile, it
would have been Humecky.
12. On December 6, Humecky reported to work as usual and was told by
Wiberg that Terpolilli wished to see him. Humecky went to Terpolilli's
office where he found both Terpolilli and Monteleone. The latter said
he had bad news, that he had requested personnel to terminate him. He
was later called back to Terpolilli's office and given a termination
letter for which he was asked to sign and acknowledge receipt thereof.
The effective date of the termination was December 10. The termination
letter signed by John Munro, Chief, Personnel Services stated that:
You are abrupt and uncooperative in dealing with patients,
supervisors and staff and become argumentative if corrected. You
have also failed to follow supervisory instructions. Your
attitude problem has negatively affected the working environment
in the Pharmacy Service.
Attached to the letter was a memorandum dated November 30 from
Monteleone enumerating specific examples of Humecky's conduct and
attitude which lead to this recommendation. These incidents set forth
in Monteleone's memorandum were not made up from whole cloth. They have
been substantiated by the testimony and the more significant ones have
been referred to above. Other incidents were referred to at the hearing
but I have not burdened this decision with them.
Section 7116(a)(2) makes it an unfair labor practice for an agency to
discourage union membership by discrimination in connection with tenure
of employment. A violation of Section 7116(a)(2) requires the
establishment of three specific elements: (1) that the employee engaged
in some form of protected activity; (2) that the employer had knowledge
of such activity; and (3) that the employee suffered disparage
treatment as a result of his protected activity. /11/ The third element
is sometimes described in terms of an employer's "discriminatory
motive," a finding which is easier to infer where there is evidence of
union animus.
However, a discriminatory motive may be inferred from circumstantial
evidence. /12/
Section 2423.18 of the Rules and Regulations, 5 C.F.R. 2423.18,
provides that the General Counsel "shall have the burden of proving the
allegations of the complaint by a preponderance of the evidence." In
this proceeding, the first two elements have been proven. Thus,
Humecky's complaint that he was being harrassed, his request for the
Union's assistance, and Ennis' consequent attempt to arrange a meeting,
are sufficient to meet the requirement of being engaged in protected
activity within the scope of Section 7102 of the Statute. Secondly, the
record well establishes that Respondent was aware that Ennis was acting
at Humecky's initiative, as is evident from Wiberg's report to
Terpolilli following his instruction to Humecky concerning television
watching, and Ennis' remarks to Monteleone. Thus, the General Counsel
has proven knowledge by Respondent.
With respect to the third element, the General Counsel conceded that
this is not a case where the evidence of unlawful motivation is overt
and unmistakable. Rather, this is a case where the existence of
unlawful motivation may only be inferred after a careful and searching
inquiry. I have made such an inquiry. I can well understand the
General Counsel's concern about the timing of Humecky's termination
coming as soon as it did after he went to see Ennis. In my view,
however, the timing was coincidental. What is significant is that prior
to Humecky's union activity, steps had already been initiated to
recommend his termination. In this regard, Counsel for General Counsel
expresses surprise that neither Terpolilli nor Monteleone informed
Humecky prior to December 6 that his termination was being recommended.
The simple answer is that this just isn't the way it's done. Since the
final decision was up to John Munro, I cannot imagine why any supervisor
would say anything to Humecky until the requisite paperwork and
documentation was submitted to and approved by Munro. Otherwise, the
supervisor could be placed in the embarrassing position of having the
rug pulled out from under him if Munro concluded that the documentation
was inadequate. This would be especially true, I should think, when
dealing with a veteran employed by a Veteran's Administration facility.
The General Counsel contends that Monteleone's memorandum of November
30 "is largely unsubstantiated and, where based on fact, exaggerated and
inconsistent with Respondent's earlier treatment of the events" I find
no merit in this contention.
While it is true that some of the earlier incidents may not have been
sufficient by themselves to warrant any action other than counseling,
they certainly deserved mention as part of a continuing pattern of
inability to interface with patients and staff. The incident which in
my opinion precipitated the decision to recommend termination was in
late October when Wiberg asked for annual leave because he couldn't
continue working with Humecky. Morale of the clerical staff was
obviously a much more important factor than occasional complaints from
patients. The challenge to rules and policies established by Monteleone
and Terpolilli came later, and served to fortify and further justify a
decision already made. Contrary to the General Counsel's contention, I
find and conclude that Respondent has substantiated its reason for
terminating Humecky, as set forth in the memorandum of November 30 and
letter of December 6. I am unable to conclude that Humecky was
terminated because he sought the Union's assistance.
Having found that the General Counsel has not sustained his burden of
proof in establishing a violation of Sections 7116(a)(1) and (2), I
recommend that the Federal Labor Relations Authority adopt the
following:
IT IS HEREBY ORDERED that the complaint be, and it hereby is,
dismissed in its entirety.
/1/ Mt. Healthy City Board of Education v. Doyle, 429 US 274;
Internal Revenue Service, Washington, D.C., 6 FLRA No. 23, 6 FLRA 96
(1981).
/2/ General Counsel's Motion to Correct Transcript is hereby granted
and the following corrections are hereby made: (TABLE OMITTED)
/3/ Respondent admits only that Humecky was an employee within the
meaning of Section 7103(a)(2)(A) until the date of his termination.
/4/ Although Humecky seemed to view Conley as just another clerk like
himself, the fact is that she was secretary to Anthony Monteleone, Chief
of the Pharmacy. Before that, she worked in the pharmacy as a clerk
performing the same duties as Humecky. Moreover, she had worked there
for 14 years and still filled in as a substitute for senior clerk Ken
Wiberg.
/5/ Ken Wiberg testified that he drank his coffee in the cafeteria,
the vending room, or outside the building on a nice day. Humecky
complained to Ellis that he was required to drink coffee in the canteen
but would prefer to have his coffee elsewhere (Tr. 12, lines 20-22; Tr.
13, lines 15-18). Thus, Humecky was aware of the regulations; he just
didn't agree with them.
/6/ Appraisals completed by Terpolilli and approved by Monteleone
gave Humecky good ratings on performance. It is not disputed that he
was a good worker. These appraisals only asked for information on job
skills and did not require an evaluation of conduct or behavior.
/7/ During this meeting, Humecky signed a union application. It was
stipulated that Humecky executed a request for payroll deduction on
November 17. Ennis testified that it was turned over to his
Secretary-Treasurer. Although Ennis testified that the usual procedure
was to send the request for payroll deduction to personnel, it is not
clear that it was actually sent to or received by personnel, or that it
came to the attention of a management or supervisory official of
Respondent.
/8/ I accept the testimony of Ennis, rather than Monteleone, as to
this date. During the prehearing investigation he stated he's already
heard from Ennis before the coffee incident.
/9/ Ennis credibly testified that on or about December 2, he
rescheduled the meeting for December 6 but had to cancel it himself
because he wasn't due at work until 2:00 p.m. and it would be
inconvenient to come in that early. The meeting was not rescheduled.
/10/ Humecky conceded that "I may have had one foot in the hallway
and one in the waiting area" (Tr. 55).
/11/ Veterans Administration Center, Leavenworth, Kansas, 1 FLRA No.
111, 1 FLRA 977 (September 20, 1979); United States Department of
Labor, 1 FLRA No. 120, 1 FLRA 1054 (September 28, 1979); Internal
Revenue Service, Washington, D.C., 8 FLRA No. 95, 8 FLRA 440 (April 30,
1982); Department of the Treasury, United States Customs Service,
Region IV, Miami, Florida, 8 FLRA No. 109, 8 FLRA 561 (May 13, 1982).
Veterans Administration Medical Center, Buffalo, New York, 13 FLRA No.
46, 13 FLRA 284 (September 30, 1983).
/12/ Veterans Administration Center, Leavenworth, Kansas, supra;
Department of the Treasury, United States Customs Service, Region IV,
Miami, Florida, supra; Veterans Administration Medical Center, Buffalo,
New York, supra.
Murray Zaretsky, Esq., For the Respondent
Thomas B. Coffey, Jr., Esq., For the Charging Party
Gerard M. Greene, Esq., For the General Counsel
33 FLRA-ALJ; Case No. 79-CA-30195 September 22, 1983
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, Respondent, and AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging Party
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 85-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute", and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
On February 9, 1983, the Charging Party (also referred to herein as
the "Union") filed a charge of an unfair labor practice against
Respondent. The charge was amended on May 23. The General Counsel of
the Federal Labor Relations Authority ("Authority") investigated and, on
May 23, served the complaint initiating this proceeding.
The complaint alleges that, on or about October 1, 1982, Respondent
committed an unfair labor practice, in violation of 5 U.S.C. 7116(a)(1)
and (5), /1/ when it implemented "a policy of reviewing 100 percent of
all initial claims allowances and technical denials under Title XVI, in
Respondent's South Seattle Branch Office, without first notifying the
Union and affording it the opportunity to bargain concerning the impact
and implementation of such policy" (GC 1(D)). /2/
Respondent denies that it has violated the Statute.
On July 21, 1983, a hearing was held in Seattle, Washington. The
parties appeared, adduced evidence, and examined witnesses. Briefs were
filed by the General Counsel, on August 19, and by the Respondent, on
August 22. Based upon the record made in this proceeding, my
observation of the demeanor of the witnesses, and the briefs, I make the
following findings of fact, conclusions of law, and recommended order.
1. It is admitted that Respondent is an agency, and the Charging
Party is a labor organization, within the meaning of the Statute.
2. It is also admitted that the Charging Party is the exclusive
representative of certain employees of Respondent, including
non-professional employees, at Respondent's South Seattle Branch Office.
3. Thirty-three employees work in the South Seattle Branch Office of
Respondent. This proceeding involves those who work in the initial
claims unit. They work as claims representatives ("CRs"), handling the
Title XVI, Supplemental Security Income program. CRs take the
applications from claimants and are responsible for completing the
application, identifying what proofs are needed, either helping the
claimants obtain these proofs or obtaining them themselves, and
developing appeals, when a decision is unfavorable. Sometimes,
depending on workloads, they perform work in other units. Journeymen
CRs (grade GS-10) train other employees. A total of three CRs work in
the initial claims unit. They were supervised by Dave Boyce from
January 1982 to January 1983, when he was transferred to another office.
4. Claimants for Title XVI benefits fall into two groups-- those
claiming on the basis of blindness; and those claiming for benefits who
are over 65, the so-called "aged" claims (TR 37). The State of
Washington approves or disapproves medical proof of disablement from
claimants not over 65.
5. CRs are appraised each October by a supervisor with
responsibility for their unit and one other. This supervisor appraises
at least 14 employees. Since October 1, 1982, the appraisal system has
been as follows.
5a. The first-line supervisor is required to review all aged claims,
and all disability allowances and technical denials. This is called the
"100-percent review" system (TR 61). However, claims denied on medical
grounds, done by the State, are not reviewed. This review is done on a
"Review Sheet." See GC 2 and 5. The sheet lists 17 categories, the
first being: "is application complete." Three columns stand alongside
each category and are: "Yes;" "No;" and "See Remarks." If the No column
is checked off, the supervisor enters remarks, explaining the problem,
at the bottom of the sheet. The CRplaces the claim folder in a special
box on the desk of the supervisor, who is supposed to review it that
day, or the next, if the file is placed in the box in the late
afternoon.
5b. If a problem or error is found by the supervisor, the folder is
returned to the CRfor comment and initialing. This may involve some
research by the CRand can take "a few days to a week" (TR 55). One took
13 days. After the CRinitials the folder, it then goes to the data
review technician who transcribes the data, and thereby effects payment
to the claimant.
5c. The Review Sheets go into the official personnel file (the
so-called "7B" file) of the CR. There they are kept and used for
appraisal purposes. They constitute the only way to measure some
elements of the critical job components of the CR.
5d. Other means of judging the performance of the CRs are available.
The supervisor can look at the full range of the work of each CR. The
supervisor may audit their interviews and conduct a desk audit if the
supervisor feels one is necessary.
An employee can prepare for a desk audit, which catches work in
progress. At the South Seattle Office, one supervisor conducting a desk
audit randomly selected for review "(m)aybe two or three" claims (TR
54). Desk audits occur about once a year. Progress reviews follow the
desk audits. As of the time of the hearing, no desk audits had been
done since October 1, 1982. See TR 47 and 54. The supervisor may also
look at office and individual statistics, for checking timeliness and
accuracy.
6. Prior to October 1, 1982, performance reviews of CRs were the
same, except that the "100 percent review" system was not in effect. In
its stead was a "random" review process (TR 70). This process used the
same Review Sheets, in the same way, for the same purpose as the 100
percent review process.
6a. Two management officials testified that, during this period,
there was an agency-wide and South Seattle Branch Office "goal" of
reviewing two cases per week per CR(TR 70 and 124). One of these
officials was Dave Boyce, the supervisor of the CRs from January 1982
until January 1983. He admitted that the office goal "was not always
met" (TR 124).
6b. The CRwho has served as an employee in the initial claims unit
the longest of any of the witnesses is Betty Heavey. Her time in that
unit began two years ago, or around July 1981. She appeared to be the
most knowledgeable witness about work and practices in the initial
claims unit. She also appeared to be an honest witness. She seemed
sure of facts as to work and practices, in the unit. Where
discrepancies exist in the testimony of witnesses about the work and
practices in the initial claims unit, I have credited the testimony of
Ms. Heavey as being more reliable.
6c. Ms. Heavey established that the random reviews were conducted by
an operations analyst who came in once or twice a week to review all the
claims in the whole office. The operations analyst was employed in the
Seattle District Office. At most, he reviewed two or three claims a
month of each CRin the initial claims unit. He chose the claims for
review at random from among the "developed" claims (TR 53).
6d. Ms. Heavey testified that her supervisor did not make out the
Review Sheets prior to October 1, 1982. Mr. Boyce admitted that it was
"(b)asically, the operations analyst (who) would review the cases" (TR
98). He admitted that there were "weeks where (the analyst) did not
come into the office for various reasons" (TR 98), and claims that he
"would review the cases that week" (TR 98). He specifically recalled at
least a 2-week period when he was away for training; another 4-week
period when he was away on vacation; and another approximately 6-week
period when there was a gap in managers and he had no time to keep up
the two-case per week per person review. After Ms. Saunders came on
board, in July 1982, Mr. Boyce tried to catch up by "conduct(ing) desk
audits on each of the people that I supervised in an attempt to backfill
some of the absent information and try to gather additional
documentation so that I could appraise them appropriately" (TR 101).
For the reasons stated in finding 6b, supra, I credit the testimony of
Ms. Heavey, that her supervisor did not, with any regularity at least,
make out Review Sheets prior to October 1, 1982.
7. The change to 100 percent review was brought about because of a
"deferred development" process, for developing claims, put into effect,
at the South Seattle office, in July, August or September 1982. See TR
23, 62, 83 and 103. Under this process, nonmedical actions on
disability claims are deferred until the State of Washington sends back
its decision on the medical portion of the claim. The nonmedical
portion consists of establishing the citizenship, resources and living
arrangements of the claimants. Before this process went into effect,
CRs developed the nonmedical portion before ascertaining whether the
medical portion would be denied. A low proportion of the disability
claims are approved, medically, by the State. Thus, CRs need not
develop the nonmedical proof on such claims. There are "severe
workloads" in the initial claims section (TR 125); and this new process
allows employees time to process more cases.
8. The random sampling of claims folders did not work well, after
the deferred development process was made effective in July, August or
September 1982. This is because a large number of cases pulled for
review were "incomplete and would literally tell you nothing about the
performance of that individual" (TR 70). The cases were randomly
selected from a list and trying to track down the claims folders was a
difficult and time-consuming task for the reviewer.
9. The supervisor and the branch manager tried to show that the
number of cases actually reviewed under the random-review and the 100
percent review systems was about the same. But they based their
comparison on the "goal," under random review, of reviewing two cases,
per week, per CR. In practice, this "goal" eluded them much, indeed
probably most of the time. See findings 6a-6d, supra.
10. The effect of the change from random to 100 percent review was
described by CRs in a number of ways:
10a. Timeliness and productivity are two important appraisal
factors. Having to respond to more Review Sheets comments by their
supervisor takes time away from other work, and delays the processing of
the particular work reviewed and found wanting in some respect. Mr.
Boyce testified that he took such delays into account in appraising
employees, "perhaps" noting the delay on the employee's Review Sheet (TR
122), if it was "particularly significant" (TR 123), and otherwise
relying on his "knowledge of a person's work and situation" (TR 123).
No formal mechanism existed for taking these delays into account. Mr.
Boyce was replaced by another supervisor in January 1983.
10b. One of the CRs handles all the aged claims and she also handles
a smaller share of the disability claims, in order to even-up the work
of the three CRs. Since October 1982, this CRhas been Ms. Heavey. She
feels that more of her work is reviewed because all aged claims are
reviewed; whereas the other two CRs handle only disability claims, and
those medically rejected are not reviewed. Since the deferred
development system means that the other two CRs do little, if any work
on medically-rejected claims, there appears to be little factual basis
for her belief.
10c. The 100 percent review of claim folders does not catch other
work done by a CR, such as appeals work, training, and work done for
other units. While other management tools exist for considering these
aspects of the work of a CR(see finding 5d, supra), it cannot be
ascertained whether the supervisor making the most recent appraisals
used them or not, because those appraisals were not due for
two-and-a-half months, at the time of the hearing.
10d. Responsibility for authorizing payment or denial of claims is a
factor justifying the CR's journeyman grade of a GS-10. This grade "is
jeopardized because really the responsibility has now been shifted to
the supervisor" (TR 30).
10e. The 100 percent review catches mistakes at the end, when there
is nothing to do but correct them. The "random reviews or desk audits"
caught "work at all stages of development;" and a mistake or problem
could be caught and identified when the employee had an opportunity to
resolve it (TR 30). One CRtestified that this was "punitive" rather
than "constructive" (TR 30). While desk audits do catch work at all
stages of development, random reviews did not-- they were made of
developed claims.
10f. The 100 percent review made Ms. Heavey "very nervous;" and she
felt that she was not doing as good a job as she could have (TR 41).
Accordingly, she requested part-time work to "make it easier for (her)
to cope with this workload" (TR 41).
11. It was admitted by Mr. Boyce that the 100 percent review system
gave him a "better idea" of what errors were being made by CRs; what
type of training was needed; and how they performed in comparison with
one another (TR 120). CRs have increased their processing time, and
decreased their error rate under the 100 percent review process.
12. Since the implementation of the 100 percent review system, Ms.
Heavey has received a within-grade increase. Another CR, Kim Furogari,
has gotten a promotion. Another CR, Stanley Friendship, was promoted
and left the unit, in late October or early November, because of the
pressure of the 100 percent review, according to Ms. Heavey who, as a
coworker in a small office would be a position to know why he
transferred, particularly since she took over from him the
responsibility for the aged claims. Mary O'Malley also left the initial
claims unit, in mid-April 1983; and she was one of the witnesses who
complained about the burdensome nature of the 100 percent review system
in that unit.
See TR 28-30. Ms. O'Malley identified six of her Review Sheets, a
sampling of those done on her, which noted errors in her work which she
had to research and justify. See GC 2(a), (e), (f), (g), (h), and (k).
Four of her Review Sheets so adduced showed a delay, ranging from 3 to
13 days, by the supervisor in returning the claims folder to her. See
GC 2(b), (d), (e), and (i).
13. The change to the 100 percent review system was announced by the
branch manager, Ms. Saunders at a regular Friday staff meeting, in
August or September 1982, to be made effective on October 1. All branch
office employees attend these meetings, including Robert Grey, who is a
CRin the post-entitlement section. Mr. Grey was at the meeting in
question, in his capacity as an employee. Mr. Grey also happened to be
the local representative of the Union, at that time; and his duties
included bargaining and negotiating any changes. He was the proper
person to receive notice of any change. No prior notice of the 100
percent review process was given to any union official.
13a. The announcement of the 100 percent review process "caused sort
of a furor" (TR 62). The union representative asked for bargaining and
was "exceedingly vehement" about it (TR 39 and see also TR 62 and 24).
Ms. Saunders replied that "it was management's right, she didn't have to
bargain and negotiate on that, and that-- she went on to another
subject" (TR 62). The union representative asked for this position in
writing. His request was never honored.
14. Ms. Saunders admits that she did not give the Union prior notice
of the 100 percent review system. She did not do so because she did not
see it as a "change" according to her testimony at the hearing (TR 84).
But she testified that she "discussed (the 100 percent review system)
two or three times" with Mr. Grey (TR 84). She did not testify as to
when these meetings took place. She recalled the things they talked
about as being:
The 100 percent review, he seemed to be of the opinion that we
were going to review 100 percent of the employee's work. I
pointed out that it was more like 20 percent or less, that it
didn't constitute the full 100 percent review of every case they
touched. He mentioned something about the appraisal process and I
indicated that we weren't putting any more into the 7B file than
we were before. He indicated something to the effect that
management was doing this to improve their staff. I didn't know
exactly what he meant by that. The Agency has always been
concerned about the accuracy of SSI claims and their processing,
so it's true that we were concerned about it, but not-- that
wasn't the purpose of the review.
See TR 85. At the conclusion of this "encounter," Ms. Saunders
testified that:
I thought there were no problems. He did not indicate anything
different that-- a different position that they wanted to take or
any counter-proposals or any impact based on the decision. He had
indicated he wanted something in writing, I do recall getting back
to him orally, but not giving anything in writing.
See TR 85.
Ms. Saunders appeared to be an honest witness and certain about these
particular discussions. Accordingly, I credit her testimony.
14a. Mr. Grey could recall no discussions with Ms. Saunders "about
the impact of this 100 percent review" (TR 64), but was not asked about
the particular discussions set forth above. I also credit his testimony
as honest and forthright and do not regard it as contradictory of what
Ms. Saunders attested had been their discussions. The discussions may
not have been what Mr. Grey would regard as impact bargaining, which
seemed to have been the thrust of the question to which he responded.
15. The "type of things," the Union would propose were established
by Mary O'Malley, the current local union representative and a GS-10 CR
in the initial claims unit at the South Seattle Branch Office. She
testified as follows, on this point:
What I would propose is the review be done in a fair and
equitable manner. I would also propose some provision for
statistical adjustment that would cover any delays that are caused
by rebuttal or caused by the review, itself, so that in appraising
the time that's lost, it's not having an adverse affect on the
appraisal. I would also propose that every effort be made to
cover all aspects of the employee's work and I would also propose
that the review be conducted in a manner that would assist the
employee in achieving a result and not merely just documenting the
result.
TR 34-35.
This Authority has repeatedly held that "the Statute required that,
prior to effecting a change in established conditions of employment, an
agency must give the exclusive representative adequate advance notice
and an opportunity to negotiate over such change and/or the impact and
implementation thereof." See U.S. Department of Justice, Federal Prison
System, 12 FLRA 4 at 10 (1983). Sought here is impact and
implementation bargaining over a change whose impact will not be fully
felt until the annual appraisal period of the affected employees ended
in October 1983-- after the case was tried. As to this type of
situation, an agency must meet its bargaining obligation if "the change
in employment conditions could reasonably be foreseen to have a
substantial impact on (affected employees)."
See Department of Health and Human Services, Social Security
Administration, Field Assessment Office, Atlanta, Georgia, 11 FLRA 419,
428 (1983).
Respondent here does not challenge these principles. But it argues,
first, that there was no change; second, that any change made had no
substantial impact upon employees; and, third, that the Union had an
opportunity to deal with the matter and did not avail itself of the
chance. See RBr 1. These arguments are rejected, for the following
reasons.
A. A change was made in the system of evaluating employees.
The 100 percent review system increased, considerably, the review
made of the affected employees' work product. Under this system, every
developed claim is subjected to detailed review. Under the former
system, review was done on a random basis. While, in theory, an equal
number of cases may have done under each system, this theory depends
upon the unsubstantiated fact that the office "goal" of reviewing two
cases, per week, per employee, under the old system, was met. See RBr
7. The record clearly establishes that, in fact, this "goal" was not
attained, by a long shot.
The 100 percent review system also shifted the total responsibility
for the developed claim review from an analyst from the Seattle District
Office to the first-line supervisor in the South Seattle Branch Office.
Since it is the first-line supervisor who gives the annual appraisal to
the affected employees, this is a change of substance. The first-line
supervisor is more likely to give weight to his own day-by-day written
evaluations than to those of an outsider.
The fact that both systems used the same forms to evaluate the
work-product and made the same use of them, as Respondent stresses (Rbr
10-12), is not controlling. What is significant is the fact that the
new system substantially increased the amount of review and switched
this reviewing responsibility to the first-line supervisor, as discussed
already.
B. The change had a substantial impact upon employees.
While some of the adverse factors perceived by the employees were not
convincingly shown (see findings 10b and 10e, supra) several were.
One is the constant pressure the new system puts on employees to be
error free-- a pressure that is working, because the error rate has
improved since the new system was implemented. See finding 11, supra.
Such pressure has driven one employee to seek parttime work and another
to leave the unit.
Another is that timeliness and productivity, important factors in
appraising the affected employees, is bound to be affected when there is
more work-product review; and each review resulting in adverse comment
must be researched and explained, if possible, by the affected
employees. To the extent that timeliness and productivity have
increased, overall, and that the affected employees have received
promotions and within-grade increases (see findings 10f and 11, supra),
reflects the pressure put upon them by the new system.
Another adverse impact is that responsibility for granting and
denying claims, an important factor in justifying the journeyman grade
of GS-10, has really been shifted to the supervisor, who is required to
review every claim before payment or denial of payment is made.
The sum of these adverse factors is clearly substantial. The fact
that only three employees work in the initial claims unit, the only unit
affected by the new system, is not significant, as Respondent seems to
argue. See RBr 5. An unfair labor practice can be found as to a single
employee. The number affected is a matter to address in fashioning a
remedy.
C. The Union did not waive its bargaining rights.
Such waivers must be "clear and unmistakable." See Department of the
Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981). Here,
the Union was "exceedingly vehement" in asserting its bargaining right;
and the branch manager never retracted her unequivocal response to this
vehement assertion, that "she didn't have to bargain." See finding
13(a), supra. The fact that she later engaged in some "discuss(ions)"
with the union representative over the change (see finding 14, supra),
is not a sufficient basis upon which to draw a conclusion that the
Union, by participating in these "discuss(ions), waived its bargaining
rights.
The General Counsel contends that the "appropriate and adequate
remedy in this case is status quo ante relief or in the alternative to
require Respondent, upon request of the Union, to bargain on the
implementation and impact on adversely affected employees, of the policy
of 100 per cent review of initial claims allowances and technical
denials, and apply any agreement reached therein retroactively" (GCBr
17).
A bargaining order is clearly appropriate, in this case.
The appropriations of status quo ante relief turns on a number of
factors set forth in Federal Correctional Institution, 8 FLRA 604, at
606 (1982), as follows:
Where, as here, management has exercised its reserved rights
under section 7106 of the Statute without fulfilling its duty to
bargain with the exclusive representative concerning the
procedures it will observe in the exercise thereof and regarding
appropriate arrangements for bargaining unit employees adversely
affected thereby, pursuant to sections 7106(b)(2) and 7106(b)(3)
of the Statute, respectively, the Authority on occasion has issued
orders requiring a return to the status quo ante. /3/
However, the appropriateness of a status quo ante remedy must be
determined on a case-by-case basis, carefully balancing the nature
and circumstances of the particular violation against the degree
of disruption in government operations that would be caused by
such a remedy. /4/ Accordingly, in determining whether a status
quo ante remedy would be appropriate in any specific case
involving a violation of the duty to bargain over impact and
implementation, the Authority considers, among other things, (1)
whether, and when, notice was given to the union by the agency
concerning the action or change decided upon; (2) whether, and
when, the union requested bargaining on the procedures to be
observed by the agency in implementing such action or change
and/or concerning appropriate arrangements for employees adversely
affected by such action or change; (3) the willfulness of the
agency's conduct in failing to discharge its bargaining
obligations under the Statute; (4) the nature and extent of the
impact experienced by adversely affected employees; and (5)
whether, and to what degree, a status quo ante remedy would
disrupt or impair the efficiency and effectiveness of the agency's
operations.
As to the first item, notice was never given to the "Union" qua
union. See finding 13, supra. Respondent concedes that the "Union" was
not provided with "any prior notice" (RBr 13).
As to the second, the union demanded bargaining as soon as the change
was announced, only to be met by the manager's response that the matter
was "management's right" and that she "didn't have to bargain." See
finding 13a, supra. However, the Union waited five months before filing
its unfair labor practice charge and thereby pursuing relief for the
affected employees.
As to the third, willfulness on the part of the agency, Respondent's
manager was new on the job. She may not have understood that an
obligation exists to bargain about the impact and implementation of
changes, even though the change itself is within management's right and
not bargainable. This record shows no union animus on her part. She
did discuss the matter with the union representative, and explain to him
how the change would work. Of course, a union is not required to repeat
a bargaining demand in the face of a flat declaration that management
does not have to bargain. However, an inexperienced manager could
reasonably have assumed that there was no longer a problem, after the
discussions, especially since the Union let five months pass without
filing an unfair labor practice charge. I therefore conclude that her
actions were not willful, at least in the sense of being "perversely
obstinate" or "unreasonably stubborn." See this dictionary definition of
"willful" in The Random House College Dictionary, page 1506.
As to the fourth, the nature and impact upon the adversely affected
employees, it is significant that several employees have left the unit
or switched to a parttime status, under the pressure of a 100 percent
review system. It is reasonably foreseeable that their October 1983
appraisals may not take into account the time they spend researching and
rebutting Review Sheets. See finding 10a, supra. About 10 percent of
the work force at the South Seattle Branch Office is involved.
As to the fifth, how disruptive and impairing the remedy would be on
the efficiency and effectiveness of the agency's operations, it appears
that the appraisals would have to be adjusted for four employees,
counting that of Ms. O'Malley who was in the initial claims unit for
about six months of the appraisal period. This would not seem to be
unduly burdensome or disruptive. However, ignoring the Review Sheets
for the entire period, as the General Counsel urges (GCBr 18-19) would
deprive the appraiser of the only way to determine some critical aspects
of the work of the CRs. See finding 5c, supra. This might work to the
disadvantage of the hardworking CRs and award the less deserving.
But most importantly, a return to the former system would deprive
management of a system that has been successful in decreasing the error
rate on claims, and increasing productivity and timeliness-- a result of
direct benefit to the disables and aged claimants filing for benefits.
See finding 11, supra.
A careful balancing of these factors leads me to conclude that a
status quo ante remedy is not appropriate here. Management acted
wrongfully, but not a perversely obstinate or unreasonably stubborn way.
The Union, by delaying some five months in filing an unfair labor
practice charge, has contributed to the delay in rectifying the adverse
impact of the change. Some employees might be disadvantaged by a status
quo ante remedy. And, most importantly of all, a return to the old
system would deprive Social Security claimants of quicker processing
times and fewer errors on the claims.
Also denied is the General Counsel's request that any bargaining
order be made to apply retroactively. In denying the request, I have
applied the factors applied by the Authority in Federal Correctional
Institution, quoted and discussed above, and considered the two cases
cited by the General Counsel at pages 19-21 of the Brief. Professional
Air Traffic Controllers Organization v. Federal Labor Relations
Authority, 685 F.2d 547, 584, fn. 79 (C.A.D.C. 1982) merely recognizes
the power of the Authority to grant such relief. Veterans
Administration, Veterans Administration Regional Office (Buffalo, New
York) ("VA"), 10 FLRA 167 (1982) granted the relief without discussing
the rationale behind the grant. I note that, in VA, the Authority was
dealing with a specific union proposal which had been made. So the
Authority knew the dimension of the relief it was ordering. Here, there
are no specific proposals-- only suggestions of the "type of things" the
Union would propose. See finding 15, supra. Thus, ordering retroactive
relief would be delving into the unknown. Such an order would place a
rigidity upon the bargaining process that might be undesirable. For
example, the Union might well bargain for a provision for statistical
adjustments to take into account delays caused by employees having to
research and rebut adverse comments on Review Sheets. See finding 15,
supra. Management might be willing to do this, for the future, but
unwilling to agree because of the order requiring retroactive
application of any agreement, which would force it to reappraise
employees. The employees may be well satisfied with their appraisals,
so the Union would gain nothing on behalf of the bargaining unit from
the retroactivity requirement. In such situations, allowing for
flexibility, rather than rigidity in the bargaining process seems
preferable.
The General Counsel has demonstrated, by a preponderance of the
evidence, that Respondent has engaged, and is engaging in the unfair
labor practices alleged in the complaint.
Accordingly, it is hereby ORDERED, pursuant to 5 CFR 2423.29(b) and 5
U.S.C. 7118(a)(7), that Respondent shall:
1. Cease and desist from:
(a) Unilaterally implementing a change in conditions of
employment, at its South Seattle Branch Office, without giving
prior notice to the Charging Party and affording it the
opportunity to negotiate over the implementation and impact of the
change upon adversely affected employees.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the Charging Party concerning
the implementation and impact which the 100 percent review system
has had upon employees in the initial claims unit in the South
Seattle Branch Office.
(b) Post at its facilities within the South Seattle Branch
Office copies of the attached notice on forms to be furnished by
the Authority. Upon receipt of such forms, they shall be signed
by the Branch Manager and they shall be posted and maintained by
her for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Branch Manager shall take
reasonable steps 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, Region VII, 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.
/1/ 5 U.S.C. 7116 provides, in pertinent part, that:
(a) For the purposes 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; (or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter. . . .
/2/ "GC" refers to the exhibits of the General Counsel. Other
abbreviations to be used herein are as follows. "R" refers to the
exhibits of Respondent. Multipage exhibits will be referenced by an
exhibit number followed by a page or paragraph number. "GCBr" refers to
the brief of the General Counsel. "RBr" refers to the brief of
Respondent. "TR" refers to the transcript.
Corrections to the transcript have been made pursuant to 5 CFR
2423.19(r) and the unopposed motion of the General Counsel. Only item 5
of the General Counsel's motion is denied, since those pages are not
transposed in the record copy. See Appendix A hereto.
/3/ See, e.g., San Antonio Air Logistics Center (AFLC), Kelly Air
Force Base, Texas, 5 FLRA No. 22 (1981); Norfolk Naval Shipyard,
Portsmouth, Virginia, 6 FLRA No. 22 (1981).
/4/ In this regard, the Authority notes that section 7101(b) of the
Statute states, in part, the intent of Congress that "(t)he provisions
of this chapter should be interpreted in a manner consistent with the
requirement of an effective and efficient government."
Wilson G. Schuerholz, Representative for Respondent
John Mack, Representative for the Charging Party
Barrie Shapiro and Joseph Swerdzewski, Counsel for the General
Counsel, Federal Labor Relations Authority
Page 11, Line 13, substitute "ante" for "ami."
Page 12, Line 19, substitute "bargained" for "bargaining."
Page 13, Line 15, substitute "ante" for "ami."
Page 14, Line 10, substitute "ante for "ami."
Page 34, Line 4, substitute "propose" for "oppose."
Page 65, Line 14, substitute "Saunders" for "Saynders."
Page 93, Line 2, substitute "to get a" for "together."
WE WILL NOT unilaterally implement a change in conditions of
employment, without giving prior notice to the American Federation of
Government Employees, AFL-CIO, and affording it the opportunity to
negotiate over the implementation and impact of the change upon
adversely affected employees.
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, upon request, negotiate with the American Federation of
Government Employees concerning implementation of the 100 percent review
system and the impact of change upon adversely affected employees.
. . .
(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 VII,
whose address is: 1531 Stout Street, Denver, Colorado 80202, and whose
telephone number is: (303) 837-5224.
33 FLRA-ALJ; Case No. 1-CA-30094 September 29, 1983
DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, (WASHINGTON, D.C.)
AND DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION I, (BOSTON,
MASSACHUSETTS), Respondent, and NATIONAL TREASURY EMPLOYEES UNION,
Charging Party
Before: FRANCIS E. DOWD, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101 et seq. On April 27, 1983, the Regional Director for Region
1 of the Federal Labor Relations Authority, pursuant to a charge filed
on February 7, 1983 and an amended charge filed on April 27, 1983 by
National Treasury Employees Union (herein referred to as NTEU or the
Union), issued a Complaint and Notice of Hearing alleging that the
Department of the Treasury, U.S. Customs Service, (Washington, D.C.) and
the Department of the Treasury, U.S. Customs Service, Region I, (Boston,
Massachusetts), hereinafter referred to as Customs or Respondent,
violated Sections 7116(a)(1) and (6) of the Statute.
More specifically, the Complaint alleged that since on or about December
10, 1982, Respondent has failed and refused to cooperate in impasse
procedures and decisions, by failing and refusing to implement the
Decision and Order of the Federal Service Impasses Panel (hereinafter
referred to as the Panel) in Case No. 82 FSIP 9 dated July 15, 1982, as
clarified by the Panel on December 10, 1982, in final resolution of the
impasse between Respondent and the Union.
A hearing was held in Boston, Massachusetts at which time the parties
were represented by counsel and afforded full opportunity to adduce
evidence and call, examine, and cross-examine witnesses and argue
orally. Briefs filed by Respondent and the General Counsel have been
duly considered. There being no objection, General Counsel's motion to
correct the transcript is hereby granted.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
1. Respondent is an agency and the Union is a labor organization
within the meaning of Sections 7103(a)(3) and (4), respectively,
2. Respondent and the Union are parties to a National Agreement
effective June 30, 1980 with a duration of two years. Article 36 of the
National Agreement provided for the authorization of supplemental
negotiations limited solely to four matters: annual leave, equal
employment opportunity, overtime, and hours of work. Section 3 of
Article 36 delegated authority to engage in such supplemental
negotiations to the Regional level of the respective parties. Article
36 is silent with respect to the duration of any Supplemental Agreement
negotiated by the Regional parties.
3. In December 1980, negotiations began for a Supplemental Agreement
between representatives of the Union and the Boston Region of
Respondent. The parties agreed in the course of these negotiations on
the areas of equal employment opportunity and annual leave, but were
unable to agree on the overtime and hours of work provisions. Section 6
of Article 36 provided that if the parties at the Regional level were to
reach impasse upon any of the matters authorized for negotiations, their
dispute would be submitted to the national levels of the parties for
resolution. Section 6 further provided that if, within 45 days, the
parties at the national level were unable to resolve the issues in
dispute, either party could file an application with the Federal Service
Impasses Panel. In approximately May of 1981 the dispute involving
overtime and hours of work was referred under Article 36 to the national
level for resolution.
The parties at the national level were unable to resolve the dispute
and, in August 1981, the Respondent and the Union filed a joint
application with the Panel for assistance in the resolution of the
dispute.
4. The Panel docketed the case as 81 FSIP 145. Thereafter, the
Union submitted a request dated October 8, 1981 to withdraw the case
from the Panel, apparently asserting that its request was "submitted
with the concurrence of both parties" (G.C. Exh. No. 2, para. 2 of
Attachment). The Panel approved the withdrawal request.
5. By letter dated October 19, 1981, Customs unilaterally requested
the Panel to reactivate Case No. 81 FSIP 145 and asserted that the
Union's previous withdrawal request misrepresented to the Panel the
position of the Customs Service. The Request for Assistance form stated
that the expiration date of the National Agreement was June 30, 1982.
On October 8, the Panel notified the parties that it was in receipt of
Customs' request for assistance in an impasse. The request was docketed
as a new case and assigned Case No. 82 FSIP 9.
5. On February 8, 1982, pursuant to Section 2471.6 of the Panel's
Rules and Regulations, the Panel notified the parties in Case No. 82
FSIP 9 of the procedures recommended for resolving the impasse (G.C.
Exh. No. 3). Specifically, the Panel directed the parties to make
written submissions. I find and conclude that the Panel thereby
accepted jurisdiction over the matter.
6. On June 30, 1982, the National Agreement expired. Apparently one
of the parties to the National Agreement gave 120-day notice to
terminate as required by Article 40, Section 2(B). There is no
provision in Article 40 dealing with the duration or termination of
Supplemental Agreements negotiated pursuant to Article 36. Neither
Respondent nor the Union notified the Panel that the National Agreement
had expired. Section 6 of Article 40 states as follows:
Upon the termination of this agreement, the employer agrees
that it will not modify existing personnel policies and practices
or matters affecting working conditions contained herein until it
has fulfilled the bargaining obligation under appropriate law or
regulations.
7. The Panel issued its Decision and Order in the impasse on July
15, 1982 and ordered that the parties "shall adopt the Union's proposals
concerning overtime and hours of work" (G.C. Exh. No. 7).
8. By letter dated August 13, 1982 (G.C. Exh. No. 8), Customs
informed the Panel that it could not comply with the Panel's Order since
it did not understand certain terms of it and requested the Panel to
clarify the Order.
Customs stated that it was contemplating appealing the Order pursuant to
5 U.S.C. 7123 and requested that the Panel clarify the Order
expeditiously. In its request for clarification, Customs stated that it
understood that the overtime matter at issue before the Panel only
involved certain parts of the Boston Region and would affect 66 Customs
Inspectors of a total of 1,075 employees in the Boston Region. Customs
also questioned whether the ordered Union proposal on overtime was
intended to reflect the status quo existing between the parties. It was
Customs' position that the Union proposal did not reflect the status
quo. Customs made no reference to the expired agreement.
9. The Union addressed the issues raised by Customs in an August 18,
1982 letter to the Panel (G.C. Exh. No. 9). The Union stated its
position that Customs was incorrect in its understanding of how many
employees within the Boston Region were affected by the Order. The
Union further disagreed with Customs' position on whether the Order
directed adoption of a proposal which reflected the status quo. In
addition, the Union alleged that Customs' conduct was "dilatory."
10. The Panel issued a December 10, 1982 letter to the parties in
which its responded to the request for clarification (G.C. Exh. No. 10).
The Panel agreed with both contentions made by Customs and stated that
it was its intent that the Order would only affect those employees
understood by Customs to be covered by it and that it did not intend
that its Order be interpreted to reflect the status quo.
11. William P. Milton, Jr., NTEU representative, testified without
contradiction that the Union thereafter made several attempts to achieve
compliance with the Panel Order. In response to the Union's inquiries,
Respondent never indicated that it would not implement the Panel Order.
Rather, the Union was told on various occasions by David Emmons of
Respondent that the Supplemental Agreement was being typed, corrected,
and being reviewed by the Assistant Regional Commissioner and the
Regional Commissioner.
12. The Boston Region and the local level of the Union have not
executed a Supplemental Agreement under Article 36 of the expired
National Agreement. At the hearing Respondent amended its Answer to
admit that it has failed to implement the Decision and Order of the
Panel in Case No. 82 FSIP 9 as clarified on December 10, 1982.
The Statute does not sanction Authority review of a Panel Decision
and Order except through unfair labor practice procedures initiated by
the party alleging noncompliance with a Panel Decision and Order. State
of New York, Division of Military and Naval Affairs and New York
Council, Association of Civilian Technicians, Inc., 2 FLRA No. 20, 2
FLRA 185 (December 5, 1979); State of California National Guard,
Sacramento, California, 2 FLRA No. 21, 2 FLRA 190 (December 5, 1979);
California National Guard, Fresno Air National Guard Base, Fresno,
California, 2 FLRA No. 22, 2 FLRA 195 (December 5, 1979); State of
Nevada National Guard, 7 FLRA No. 37, 7 FLRA 245 (November 19, 1981).
Review is appropriate in this case since the Panel Decision and Order is
before the Authority in the context of an unfair labor practice
proceeding.
The Complaint alleges a violation of Sections 7116(a)(1) and (6) of
the Statute. Section 7116(a)(1) makes it an unfair labor practice to
interfere with, restrain, or coerce any employee in the exercise by the
employee of any right under the Statute. Section 7116(a)(6) makes it an
unfair labor practice for an agency to fail or refuse to cooperate in
impasse procedures and decisions of the Federal Service Impasses Panel.
Under Section 7119(c)(5)(C) of the Statute, final actions of the Panel
"shall be binding upon the parties during the terms of the agreement,
unless the parties agree otherwise." There is no dispute that Respondent
failed to comply with the Panel's Decision and Order of July 15, 1982 as
clarified by the Panel on December 10, 1982 in Case No. 82 FSIP 9.
However, Respondent contends that by the time the Panel issued its
Decision, the impasse had been mooted and, therefore, the Panel had no
jurisdiction and its Order was not binding on the parties. For the
reasons set forth below, I find no merit in Respondent's defense.
The Federal Service Impasse Panel has authority under Section 7119 of
the Statute to provide services and assistance to agencies and exclusive
representatives in the resolution of negotiation impasses. The Panel
had broad authority. Thus, Section 7119(a) states that the Panel "shall
determine under what circumstances and in what manner it shall provide
services and assistance." In a recent decision issued subsequent to the
hearing herein, /1/ The Authority adopted a decision by Administrative
Law Judge Louis Scalzo holding, inter alia, as follows: /2/
A Panel request must be considered in its entirety, together
with other documents submitted to the Panel, and Panel
factfinding, to determine whether or not an issue has been
properly posed for resolution. The initial request for
assistance, required by Section 7119(b)(1) of the Statute, and
Section 2471.1(a) of the regulations, operates to confer upon the
Panel, jurisdiction to consider a "matter," as distinct from
specifically defined impasse issues. To hold otherwise would
operate to render useless Panel procedures designed to surface and
then sharpen genuine impasse issues prior to resolution by the
Panel.
Although the filing of a request for assistance confers on the Panel
jurisdiction to consider the matter, this does not dictate the course of
action to be followed by the Panel. Thus, Section 2471.6(a) of the
Panel's Rules and Regulations clearly states that upon receipt of a
request for consideration of an impasse, the Panel or its designee will
promptly conduct an investigation and either (1) decline to assert
jurisdiction /3/ or (2) recommend to the parties procedures for
resolution of the impasse.
In the instant proceeding, for example, the parties originally filed
a joint request in Case No. 81 FSIP 145. While the case was being
investigated by the Panel, the Union requested withdrawal of its request
for assistance. Apparently based upon the assertion made by the Union,
the Panel decided to approve the request and thereby relinquish
jurisdiction. I believe it is important to emphasize that in order for
a case to be withdrawn from the Panel once it has been filed, the
approval /4/ of the Panel is required. /5/ Once the Panel decides to
consider the impasse pursuant to Section 7119(c)(5)(A) of the Statute,
it has broad authority under Section 7119(c)(5)(B)(iii) to "take
whatever action is necessary and not inconsistent with this chapter to
resolve the impasse." Here, the parties were directed to make written
submissions to the Panel and, thereafter, on July 15, 1982 the Panel
issued its Decision ordering the parties to adopt the Union's proposals
concerning overtime and hours of work. As previously noted, Section
7119(c)(5)(C) of the Statute provides as follows:
(C) Notice of any final action of the Panel under this Section
shall be promptly served upon the parties, and the action shall be
binding on such parties during the terms of the agreement, unless
the parties agree otherwise.
Respondent's defense in this case is entirely based upon its
interpretation of the word "agreement" in Section 7119(c)(5)(C). As
applied to the facts of this case, Respondent argues that "agreement"
refers to an existing agreement, i.e. the National Agreement, and, since
the National Agreement expired on June 30, 1982, it would be illogical
for the Panel to issue a Decision on July 15, 1982 ordering the party to
execute a supplement to an expired National Agreement.
Accordingly, Respondent contends that the Panel's Order is not binding.
I reject this interpretation. In my opinion, the word "agreement" in
Section 7119(c)(5)(C) does not refer to any existing agreement. Rather
it, refers to the specific agreement being negotiated by the parties to
the impasse over which the Panel has taken jurisdiction. /6/ Here, the
impasse was between representatives of the Respondent and the Union at
the regional and local level, and was in connection with the
negotiations for a Supplemental Agreement. The parties had already
reached agreement on annual leave and equal employment opportunity, and
the Panel's Decision resolved the only two remaining issues: overtime
and hours of work. Thus, all that remained to be done was to embody
those terms in a written agreement; i.e. the Supplemental Agreement.
The negotiation of such agreement was authorized by Article 36 of the
Master Agreement. The record does not establish that any Supplemental
Agreement executed pursuant to Article 36 was dependent upon the Master
Agreement for its continued existence or that its duration was required
to be coextensive with the term of the Master Agreement. Therefore, I
find that the expiration of the Master Agreement did not bar Respondent
and the Union from executing a separate and independent Supplemental
Agreement for whatever duration they agreed upon. Moreover, it is my
opinion that such Supplemental Agreement would not be in conflict with
any terms of the Master Agreement, including Article 40, Section 6,
which pertains to "unilateral" changes by the agency.
A second reason for holding that the parties have an obligation to
negotiate a Supplemental Agreement is based upon the Authority's view
that "the purposes and policies of the Statute are best effectuated by a
requirement that existing personnel policies, practices and matters
affecting working conditions continue to the maximum extent possible,
upon expiration of a negotiated agreement, absent an express agreement
to the contrary or unless modified in a manner consistent with the
Statute. Such a result fosters stability in Federal labor-management
relations, which is an underlying purpose of the Statute." /7/
Plainly, the obligation to negotiate a Supplemental Agreement must be
viewed as a condition of employment which survives the expiration of the
Master Agreement, and nothing set forth in the Master Agreement can
reasonably by construed as waiving this right.
In addition to the foregoing, it seems to me that any decision
reached in this matter should be one which is calculated to achieve the
Authority's well-established view that an underlying purpose of the
Statute is to foster stability in Federal labor-management relations.
Accordingly, I agree with the General Counsel that acceptance of the
Respondent's position in defense of its conduct would have a reasonable
tendency to encourage dilatory tactics during the negotiation process
whenever supplemental negotiations are authorized. Thus, submission of
an impasse to the Panel could become part of a mischievous strategy to
altogether avoid execution of Supplemental Agreements. This is
precisely the issue which would have confronted the Panel had Respondent
on July 1, 1982 attempted to withdraw its request for assistance on the
ground that the Panel no longer had jurisdiction by virtue of the
expiration of the Master Agreement. Suffice to say, it is my opinion
that Respondent's failure to raise this jurisdictional issue before the
Panel does not preclude Respondent from raising the issue in this unfair
labor practice proceeding. Thus, I must reject the General Counsel's
position (brief p. 6) that Respondent is collaterally estopped from
raising this jurisdictional defense before me. /8/
It is well settled that a refusal to comply with a final order of the
Federal Service Impasses Panel constitutes a violation of Sections
7116(a)(1) and (6) of the Statute. Michigan Army National Guard,
Lansing, Michigan, 11 FLRA No. 74, 11 FLRA 365 (1983); Florida National
Guard, 9 FLRA No. 41, 9 FLRA 347 (1982); National Guard Bureau, Maine
Air National Guard, Augusta, Maine, 10 FLRA No. 101, 10 FLRA 592 (1982).
For the reasons stated above, it is concluded that the allegations of
fact in the Complaint have been established by a preponderance of the
evidence, and that Respondent's actions in failing and refusing to
comply with the Federal Service Impasses Panel Decision and Order dated
July 15, 1982 as clarified by the Panel on December 10, 1982, violated
Section 7116(a)(6) of the Statute. This conduct necessarily tended to
interfere with, restrain, or coerce employees in the exercise of their
rights assured by the Statute and thus violated Section 7116(a)(1) as
well.
At my request, the parties briefed the issue of appropriate remedy.
Respondent proposes that if a violation is found by the undersigned the
parties should be ordered to implement the Decision and Order of the
Federal Service Impasses Panel in 82 FSIP 9, by directing the Boston
Region of the Agency to execute a written Supplemental Agreement with
the Union and to take such steps to implement such Supplemental
Agreement as necessary, within 30 days of the receipt by the Agency from
the Union of a signed Supplemental Agreement, as negotiated by the
parties at the Regional level and which incorporates the Decision and
Order of the Federal Service Impasses Panel.
The General Counsel requests (1) that the Notice to Employees and the
Order directing the parties to abide by the Panel's decision should
include each of the Union's proposals on overtime and hours of work
which were adopted by the Panel, and (2) that the provisions as ordered
by the Panel be applied retroactively to a date no later than 30 days
after the Panel's clarification Order dated December 10, 1982. With
respect to this latter request, the General Counsel asserts that this
"extraordinary remedy" is appropriate and necessary to redress those
employees who may have lost overtime earnings as a result of
Respondent's failure to implement the Order of the Panel in a timely
fashion.
In my opinion, the General Counsel has not satisfactory explained why
it is necessary in this case to incorporate in the Order and Notice, the
Union's proposals on overtime and hours of work which were adopted by
the Panel. As to the request for retroactive application of the Panel's
Decision and Order, I am not persuaded that such remedy is warranted
here. /9/ In this regard, I find no evidence that the Respondent's
position was not based upon a bona fide question concerning the legality
of the Panel's Decision and Order. In fact, the legal issue is a novel
one. Nor do I find that the Respondent's motion that the Panel clarify
its original decision was based upon an intent to delay the ultimate
execution of a Supplemental Agreement. In fact, Respondent prevailed
before the Panel with respect to its motion. Finally, it is a matter of
speculation as to whether any employees actually have lost overtime
earnings as a result of Respondent's violation. Accordingly, I reject
the General Counsel's proposals.
The standard remedy in this type of case is to order Respondent to
comply with the FSIP decision. However, in order to eliminate any
confusion as to what is required to achieve compliance, I adopt the
Respondent's proposal that the Union prepare and submit to Respondent a
signed Supplemental Agreement containing the previously agreed upon
provisions concerning annual leave and equal employment opportunity, as
well as the Union's proposals concerning overtime and hours of work
which the Panel ordered the parties to adopt.
Upon receipt of the Supplemental Agreement, Respondent should forthwith
execute such agreement and, within 30 days from receipt by the
Respondent of the Supplemental Agreement, take such steps as are
necessary to implement the Supplemental Agreement. In my opinion, the
foregoing would constitute compliance with the Order recommended below.
Having found that Respondent violated Sections 7116(a)(1) and (6) of
the Statute as alleged in the Complaint, I recommend 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 Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the Department of Treasury, U.S. Customs Service (Washington, D.C.) and
Department of Treasury, U.S. Customs Service, Region I, (Boston,
Massachusetts) shall:
1. Cease and desist from:
(a) Failing or refusing to comply with the Decision and Order
of the Federal Service Impasses Panel in Case No. 82 FSIP 9
regarding "overtime and hours of work," and otherwise cooperate in
impasse procedures and decisions.
(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 effectuate the
purposes and policies of the Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 82 FSIP 9, regarding "overtime and
hours of work," and otherwise cooperate in impasse procedures and
decisions.
(b) Post at its facilities in Region I (Boston, Massachusetts),
copies of the attached Notice on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by
the Regional Commissioner, Region I, or his designee, and shall be
posted and maintained for 60 consecutive days in conspicuous
places, including all bulletin boards and 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 Authority's Rules and
Regulations, notify the Regional Director, Region I, 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.
/1/ National Aeronautics and Space Administration, Headquarters.
Washington, D.C., 12 FLRA No. 94, 12 FLRA 480 (August 10, 1983).
/2/ Ibid. at p. 498.
/3/ The Panel may decline jurisdiction on the ground that no impasses
exists or because there is no other good cause for asserting
jurisdiction, in whole or in part.
/4/ It would appear that the Panel follows the same practice as
Regional Directors do in approving requests to withdraw unfair labor
practice charges. See Section 2423.9(a)(1) of the Authority's Rules and
Regulations.
/5/ Here, Respondent never attempted to withdraw its request for
assistance, thereby depriving the Panel of an opportunity to approve or
disapprove such request.
/6/ In this regard, the General Counsel correctly contends that to
find otherwise would have the absurd result of foreclosing Panel
intervention in (1) bargaining impasses which arise before any
collective bargaining agreement has ever been negotiated, or (2)
bargaining impasses which arise from management-initiated changes in
conditions of employment after the expiration of a collective bargaining
agreement.
/7/ U.S. Nuclear Regulatory Commission, 6 FLRA No. 9, 6 FLRA 18, at
p. 20. The Federal Labor Relations Council noted a similar view under
the Executive Order. See cases cited at 6 FLRA 18, 31.
/8/ National Aeronautics and Space Administration, supra, fn. 1.
/9/ Department of Treasury, United States Customs Service, Region
VIII, San Francisco, California, 9 FLRA No. 68, 9 FLRA 606 (July 21,
1982); U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA
No. 15, 9 FLRA 116 (June 16, 1982).
Ann L. Sullivan, Esq., For the Respondent
William P. Milton, Jr., For the Charging Party
Carol Waller Pope, Esq., For the General Counsel
WE WILL NOT fail or refuse to comply with the Decision and Order of
the Federal Service Impasses Panel in Case No. 82 FSIP 9 regarding
"overtime and hours of work."
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 82 FSIP 9, regarding "overtime and hours of
work," and otherwise cooperative in impasse procedures and decisions.
United States Treasury
U.S. Customs Service
Dated: . . .
By: . . .
William Griffin
Regional Commissioner, Region I
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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region I,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts
02116 and whose telephone number is: (617) 223-0920.
33 FLRA-ALJ; Case No. 7-CA-30170 September 30, 1983
GRAND FORKS AIR FORCE BASE, GRAND FORKS, NORTH DAKOTA, Respondent,
and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1347,
Charging Party
Before: LOUIS SCALZO, Administrative Law Judge
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The complaint alleged that on or about January 16, 1983, Grand Forks
Air Force Base (GFAFB), Grand Forks, North Dakota (Respondent), changed
the starting and quitting times for employees on three existing shifts
in Respondent's Roads and Grounds Section, by advancing each shift 2
hours, without providing American Federation of Government Employees,
AFL-CIO, Local 1347 (Charging Party or Union), prior notice and an
opportunity to bargain over the change.
The complaint further alleged that such conduct was violative of Section
7116(a)(1) and (5) of the Statute.
Counsel representing the Respondent contends that the Respondent met
its bargaining obligation in this case, that adequate notice of the
change was supplied to the Union, and that the Union was provided with
an adequate opportunity to bargain.
All parties were represented by counsel during the hearing, and all
parties were afforded full opportunity to be heard, adduce relevant
evidence, and examine and cross-examine witnesses. Post-hearing briefs
were filed by counsel representing the General Counsel and counsel
representing the Respondent. Based upon the entire record herein,
including my observations of the witnesses and their demeanor, the
exhibits and other relevant evidence adduced at the hearing, /1/ and the
briefs filed, I make the following findings of fact, conclusions and
recommendations.
The Change
The change in shift starting and quitting times described in the
complaint affected Roads and Grounds Section employees /2/ regularly
assigned in rotation every 28 days to "uncommon tours of duty" by the
Respondent during the winter months of 1982-1983.
It was an established practice to change from a single 7:45 a.m. to
4:30 p.m. "regular tour of duty" for all employees, to three shifts for
Roads and Grounds employees during the period intervening between
October and April each year in order to provide for snow removal, heat
maintenance, and other services.
For a number of years prior to the change in question, winter 8-hour
shifts commenced at 6 a.m., 2 p.m., and 10 p.m. These three shifts
terminated at 2 p.m., 10 p.m. and 6 a.m. respectively. The change had
the effect of advancing the starting time of each shift 2 hours; so
that each shift terminated 2 hours later.
Prior to the change it had been long-standing practice not to pay a
25 percent Sunday premium pay differential /3/ to employees commencing
an 8-hour shift at 10 p.m. on Sundays. The record disclosed that
representatives of the Respondent discovered that Federal Personnel
Manual Provisions and Air Force Regulations required that Sunday premium
pay be paid for an entire 8-hour shift if any part of the shift fell on
a Sunday; and that in order to avoid payment of premium pay to
employees working the second shift on Sunday (10 p.m. Sunday to 6 a.m.
Monday), the hours of the three shifts had to be changed. /4/
Accordingly, the change was planned to reduce the need for such premium
pay by initiating a 2-hour advance in the starting time of each shift.
Notice of Respondent's Intention to Change Tours of Duty
The initial decision to change the hours of each shift was made by
Lt. Colonel William L. McDonald, Chief of Operations, Civil Engineering,
GFAFB (Tr. 131). He authorized Sergeant Eugene Barna, a superintendent
under his supervision to prepare a memorandum establishing the new tours
of duty (Tr. 131, 145). Mr. Keith Krueger, president of the Union,
together with the Union's chief steward, was, during this period,
authorized to represent the Union in negotiations with the Respondent
(Tr. 73-74, 119). /5/
During the morning of December 27, 1982, Sergeant Barna drafted and
arranged for the preparation of the memorandum, and obtained Colonel
McDonald's signature thereon (G.C. Exh. 3, Tr. 142-143, 145-146),
Sergeant Barna marked a copy for the attention of Mr. Krueger, and
personally placed it in an appropriate distribution box because it was
the most expeditious method of effecting delivery (Tr. 146). /6/
Sergeant Barna's testimony established that employees picked up and
delivered items in the distribution box several times each day (Tr. 141,
146).
It was a regular practice for Sergeant Barna to provide notice of
shift changes by advising Mr. Richard Krajewski, the Roads and Grounds
Section shop steward, and by sending a notice to Mr. Krueger, the Union
president (Tr. 141). It was also customary to post all planned shift
changes in duty areas in advance of the change (Tr. 204). Mr. Krueger
admitted that he regularly received notices of shift changes from
Respondent's Civil Engineering component (Tr. 41-42). However, at
another point in the record Mr. Krueger stated that Respondent's
Civilian Personnel Office "normally" apprised Mr. Krueger of "any kind
of change" (Tr. 37). This conflict in Mr. Krueger's testimony was
resolved in favor of Mr. Krueger's account of receiving such notice
directly from Civil Engineering, the affected segment of Respondent's
operation, in light of corroborative testimony from Mr. Henry Mohr,
Respondent's Civilian Personnel Officer. Mr. Mohr related that his
office did not, as a practice, notify the Union of changes in tours of
duty, but that instead the responsibility was placed upon "the level of
management immediately over those people . . . affected by the change"
(Tr. 235-236).
The procedure used to effect the shift change involved in this case
was governed in large measure by the terms of the collective bargaining
agreement governing the parties (G.C. Exh. 2, Article 21). The
following pertinent language is reflected in this agreement:
Section A. Hours of work.
The Employer agrees to provide the following:
. . .
(9) Except in emergencies, as determined by the Employer, a
minimum of one (1) week's notice will be given when employees are
to be assigned to a different tour of duty or to different hours
of duty.
Section B. Tours of duty.
. . .
(2) Uncommon: An uncommon tour of duty may be established when
necessary for efficient operations or when the cost of operation
can thus be reduced without imposing undue hardship on employees.
Assignment to work an uncommon tour of duty is as specified in AFR
40-610, 15 September 1971, supplemented. /7/
Joint Exhibit 1 reflects that AFR 40-610 was supplemented by GFAFB
Supplement I dated July 16, 1982. This document was in effect by virtue
of incorporation by reference in the collective bargaining agreement
(Tr. 206-208). It provided for submission of a request for approval of
planned changes in uncommon tours of duty through appropriate channels
to the Civilian Personnel Office, and then for forwarding of the request
for further approval by the GFAFB Director of Personnel. The Supplement
provided for the return of approved shift change proposals to the
affected unit for posting of the approved request on bulletin boards,
and for the purpose of informing affected employees (Tr. 208). The
Supplement instructed managers to submit requests for approval "prior to
the effective date (of the proposed shift change) to allow for a minimum
of 1 week's advance notification to the effected employee(s)."
The Respondent takes the position that management representatives
followed procedures outlined in the collective bargaining agreement as
amplified by the applicable GFAFB Supplement to Air Force Regulation
40-610, dated September 15, 1971; and further, that this procedure
ordinarily was followed to effect planned shift changes (Tr. 180-182,
207-208).
During the afternoon of December 27, 1982, and "a few hours" after
Sergeant Barna deposited a copy of Colonel McDonald's December 27, 1982
memorandum in the distribution box to effect delivery to Mr. Krueger,
Sergeant Barna visited the work area and convened a meeting consisting
of affected employees from two of the three shifts involved in the
planned change (Tr. 143, 145, 147). Mr. Krajewski, the Roads and
Grounds steward was present (Tr. 140, 143).
Sergeant Barna announced to assembled employees details of
Respondent's plan to effect a 2-hour advance in shift starting times
commencing 6 days later on January 2, 1983 (Tr. 144). /8/ Sergeant
Barna posted a copy of Colonel McDonald's December 27, 1982 memorandum
on a bulletin board in the presence of employees present at the meeting
(Tr. 143).
John Peppard, an employee present at the meeting indicated his
dissatisfaction with the shift change, and inquired concerning the
possibility of initiating a petition (Tr. 139, 144). Sergeant Barna
referred the inquiry to Mr. Krajewski, the Roads and Grounds Union
steward, who then immediately took down the memorandum which Sergeant
Barna had previously posted, and stated that he wished to have it to
take it to Mr. Krueger (Tr. 144-145). /9/
Petition Signed by Roads and Grounds Employees
After apprising Roads and Grounds employees of the plan to effect a
change in working hours, Sergeant Barna left the meeting. Following his
departure employees present continued to express dissatisfaction based
upon perceived shortcomings in the Union's handling of the subject (Tr.
82). Some employees did not want to change their hours (Tr. 125-126).
There was a great deal of concern over the fact that they had, in the
past, been wrongfully deprived of Sunday premium pay when they worked
tours of duty commencing at 10 p.m. on Sunday night, and ending at 6
a.m. on Monday morning (Tr. 127-128). Mr. Krajewski testified that the
latter consideration might have been the primary source of employee
concern (Tr. 128).
Mr. Peppard suggested to the group that he would prepare a petition
to revoke the plan to change the working hours of Roads and Grounds
employees and to waive Sunday premium pay for the second shift on
Sundays (Tr. 84-85, 125). /10/ The petition was prepared by Mr. Peppard
and passed around to employees present (G.C. Exh. 4). /11/ It was then
turned over to Mr. Krajewski for presentation to employees on the next
shift the following morning (Tr. 126).
Late in the day on December 27, 1982, or during the morning of
December 28, 1982, Mr. Krajewski phoned Mickie Kuchenmeister, a
bargaining unit member employed as a GS-4 payroll clerk in the
Respondent's Accounting and Finance section, to make inquiry about the
circumstances surrounding the shift change (Tr. 82-83, 176). He sought
this information to prepare for a scheduled December 28, 1982 meeting of
affected bargaining unit employees (Tr. 83). He was apprised that the
Respondent had become aware of the obligation to pay premium pay, of
Respondent's failure to pay such pay, and of the fact that the
Respondent did not have funds to reimburse employees for Sunday premium
pay illegally withheld in the past (Tr. 85-86).
At a meeting of employees on the following day (December 28, 1982),
Mr. Krajewski presented the petition to affected employees who had not
been provided with an opportunity to sign the petition (Tr. 88, 126).
Mr. Krajewski Reports Change to Mr. Krueger
Testimony supplied by Mr. Krueger and Mr. Krajewski concerning Mr.
Krueger's receipt of information about the proposed shift change is
unclear. As noted Mr. Krueger denied receiving from Respondent, a copy
of the December 27, 1982, memorandum announcing the change; although he
admitted that he ordinarily received documents relating to such changes,
and although the record reflected that Sergeant Barna sent him a copy.
The record did show that Mr. Krajewski phoned Mr. Krueger after Sergeant
Barna's meeting with affected employees; and that these two Union
officials met the next morning to discuss the matter (Tr. 44-45, 70-71,
86, 87-89).
Mr. Krueger Meets with Mr. Bennett, Sergeant Barna, and Mr. Egstad
After hearing of the proposed change, Mr. Krueger phoned Sergeant
Barna for the purpose of arranging a meeting with Colonel McDonald, the
originator of the December 27, 1982 memorandum (Tr. 23-24). In Colonel
McDonald's absence, Mr. Krueger spoke with Mr. Leland Bennett, Colonel
McDonald's deputy, and informed Mr. Bennett that he thought that the
Union had not been given sufficient advance notice of the proposed shift
change. Mr. Bennett agreed to meet Mr. Krueger in Sergeant Barna's
office (Tr. 151, 161-162). They met in Sergeant Barna's office about 15
to 20 minutes after the telephone request (Tr. 23-24, 162). Although
there was some ambiguity in the record, it was clearly established that
this meeting occurred on December 27th. /12/
The meeting was attended by Mr. Krueger, Mr. Bennett, Sergeant Barna,
and Mr. David Egstad, a Funds Management Specialist. /13/ Mr. Krueger
and Mr. Krajewski testified that Mr. Krajewski was present at the
meeting (Tr. 23-24, 86-87). On the other hand, Sergeant Barna and Mr.
Bennett stated unequivocally that Mr. Krajewski did not attend the
meeting (Tr. 132, 133, 154 /14/ ). Based upon the demeanor of these
witnesses, and an evaluation of their testimony as a whole, Sergeant
Barna's and Mr. Bennett's testimony is credited on this factual issue.
/15/
During the initial stage of the meeting, Mr. Krueger inquired
concerning the reasons underlying the change contemplated (Tr. 24-25,
158). Mr. Egstad and Sergeant Barna explained to Mr. Krueger that the
Respondent had become aware of the Sunday premium pay requirement in
situations wherein any part of an employee's shift falls on Sunday;
that the Respondent could not avoid paying premium pay in such cases;
that the Respondent did not have funds for Sunday premium pay; and that
Mr. Egstad was assigned to find a way to avoid paying Sunday premium pay
for the shift beginning at 10 p.m. on Sunday (Tr. 24-25, 110, 151-152,
155-156, 158-159, 163-165). This phase of the meeting occurred prior to
Mr. Bennett's arrival and just before Mr. Egstad left the meeting.
Other elements of the version of the meeting supplied by Mr. Krueger
differ sharply from those furnished by Sergeant Barna and Mr. Bennett.
The latter versions are much more credible. Mr. Krueger testified that
the Union took a very strong position that Sunday premium pay need not
be paid for the shift involved, and further that the Union's
interpretation of the regulatory scheme did not in fact require this
result (Tr. 27). He also stated that the Union wanted no change in
shift hours and did not desire Sunday premium pay for the shift starting
at 10 p.m. on Sunday (Tr. 27-28).
Despite the foregoing, and in apparent conflict, Mr. Krueger also
testified that in discussions with management he was endeavoring to
obtain Sunday premium pay not paid to employees in the past (Tr. 62-63).
He related that he gave Mr. Bennett and Sergeant Barna a copy of the
petition signed by affected employees (Tr. 27-28). This was vehemently
denied by Mr. Bennett and Sergeant Barna (Tr. 132, 145, 152). As noted,
this petition sought to retain the status quo by relinquishing the right
to receive Sunday premium pay for the shift beginning at 10 p.m. on
Sunday. The record disclosed that the petition was not completed until
the morning of December 28th, or the day after the meeting in question.
Moreover, it is extremely unlikely that the Union would have presented
the petition in light of the very strong desire to persuade Respondent
that there was a substantial basis for reimbursing employees for Sunday
premium pay earned in the past. Also, it was noted that in sworn
statements supplied by Mr. Krueger on February 14 and 16, 1983, there
was no mention that the petition was exhibited at this meeting (R. Exhs.
10 and 11).
There is no dispute that Mr. Krueger raised the issue of inadequate
notice at the meeting with Sergeant Barna and Mr. Bennett. He argued
that Article 21, Section A(9) of the collective bargaining agreement
prescribed a minimum 7-day notice period for changes in tours of duty;
and further, that the scheduled change on January 2, 1983, resulted in a
6-day notice period (Tr. 26-27, 45-46, 131, 151, 165). /16/ Mr. Bennett
agreed to defer implementation of the shift change until January 16,
1983 (Tr. 26, 45-46, 131, 151). By memorandum dated December 28, 1983,
Colonel McDonald formalized the agreement to postpone implementation
(G.C. Exh. 7). Sergeant Barna's testimony established that the December
28th memorandum was "published" the day after Mr. Krueger's meeting with
Mr. Bennett and Sergeant Barna (Tr. 132-133). /17/
Mr. Krueger testified that at the meeting with Sergeant Barna and Mr.
Bennett he demanded that the change not be implemented, that he orally
requested bargaining on the issue, and that Sergeant Barna and Mr.
Bennett denied the Union's right to bargain (Tr. 27-28, 38). /18/
Evidence adduced by Respondent's witnesses depict an entirely different
account. As noted, the testimony of Sergeant Barna and Mr. Bennett is
credited; therefore, it is determined that Mr. Krueger made no request
to negotiate the change in shift hours (Tr. 132, 153), that Mr. Krueger
was quite satisfied with the 2-week extension, did not otherwise object
to the change, and never raised the issue again (Tr. 133-134, 153-156,
163, 165). It is observed that since the proposed change had just been
announced it is quite likely that more time would have been needed to
determine whether or not to make a bargaining request within the
extended period of time provided by the Respondent. Further, it was
established that negotiations on the issue could have occurred prior to
implementation had an appropriate bargaining request been made to
management (Tr. 136, 214, 233), and that no higher authority had
mandated the change (Tr. 136).
In the February 14, 1983, statement submitted to an Authority
representative, Mr. Krueger stated, that "(t)he union has never
presented any formal demand for negotiations or any specific proposals
over the change in hours" (R. Exh. 10 at 6). At another point he stated
that during the December 27th meeting he requested management to
"bargain over the change" (R. Exh. 10 at 4). However, from the
statement and the record as a whole, it cannot be determined that the
latter reference alludes to the change in starting and quitting times.
Mr. Krueger's statement obfuscates the factual issue by a comment that,
"Management's position on the back premium pay is not so much a refusal
to negotiate, as (it is) a statement that they don't know the procedures
for authorizing premium pay" (R. Exh. 10 at 7). Mr. Krueger endeavored
to explain away his statement that no "formal demand for negotiations"
was made by claiming that he was referring to demands made "in writing,"
and by stating that he actually made oral demands on management
representatives (Tr. 63).
However, he freely adopted the phrase "formal demand" to describe oral
demands he allegedly made later to Mr. Peterson and Mr. Mohr (Tr. 54).
In a second statement provided to an Authority representative on
February 16, 1983, Mr. Krueger stated that, "(t)he union never submitted
any written proposals on this matter nor did it ever demand that formal
negotiations should be held before or after the change in hours" (R.
Exh. 11 at 6). This later statement makes no reference at all to a
demand for negotiations made by Mr. Krueger on December 27th, although
the statement describes in detail efforts made on this date to obtain
premium pay for past years and to prevent the change from occurring.
However, in apparent conflict Mr. Krueger notes in closing this
statement that he did claim a lesser bargaining obligation. He
concludes by stating that "(t)he union's claim is simply that management
failed and refused to negotiate over the impact and implementation of
the change in hours."
Mr. Krueger was evasive when questioned concerning his perceptions of
the authority of Sergeant Barna and Mr. Bennett to engage in bargaining
on the change in hours (Tr. 50-51). At first he indicated that he
thought these individuals had no such authority (Tr. 46), and then he
testified that he believed that they had bargaining authority (Tr.
51-52). The record revealed that neither of these individuals had the
authority to bargain with Mr. Krueger concerning the issue, and further
that under the circumstances it would have been extremely unusual for
Mr. Krueger to interpose a bargaining request at their level.
Article 8, of the collective bargaining agreement then in effect
provided for the Respondent's designation of a representative to handle
"consultations or negotiations," and for notification to the Union of
the identity of the representative selected. The Article specifically
mandated that all initial contacts be made through such representative,
and gave the representative authority to consult and negotiate (G.C.
Exh. 2 at pages 6-7). By memorandum dated July 16, 1982, Mr. Henry E.
Mohr, Chief, Civilian Personnel Branch, was designated as the
Respondent's representative (R. Exh. 1). The memorandum was addressed
to Mr. Krueger by the Commander of GFAFB, and was in effect during
pertinent periods involved in this case. Mr. Krueger and Mr. Mohr had
been involved in contract negotiations at different times from October
of 1982 through April of 1983 (Tr. 230-231). It was customary for Mr.
Krueger to deal with Mr. Mohr, or with Mr. Roland Peterson, an assistant
to Mr. Mohr. Mr. Peterson held the position of Chief, Labor Relations
Officer, in the Civilian Personnel Branch, and Mr. Krueger ordinarily
dealt with either of these two management officials on issues of the
type involved herein (Tr. 232-233). Thus, the record clearly
established that Krueger was no novice, and was well aware of the
individuals to meet with for the purpose of requesting negotiations.
Interestingly, Mr. Krajewski positively acknowledged that Mr. Mohr
and/or Mr. Peterson were the appropriate persons for the Union to
contact for collective bargaining purposes at GFAFB (Tr. 114-115). He
also admitted that he knew that neither Mr. Bennett nor Sergeant Barna
had been designated as Respondent's collective bargaining
representatives (Tr. 114).
Mr. Krueger's credibility was seriously impaired generally when,
under the circumstances outlined, he denied knowing that Mr. Mohr was
the designated representative (Tr. 48-50), and when he was otherwise
evasive on this subject (Tr. 52-53). However, he did acknowledge that
he was aware that Civilian Personnel (Mr. Mohr's office) was the
appropriate point for him to contact (Tr. 54).
Mr. Krueger and Mr. Krajewski Meet With Mr. Peterson
Mr. Krueger and Mr. Krajewski later met with Mr. Roland Peterson in
connection with the matter. The date of this meeting is not clearly
reflected in the record; however, it occurred prior to implementation
of the change on January 16, 1983. /19/
Mr. Krueger testified that he and Mr. Krajewski interposed a
bargaining request at the meeting, and showed Mr. Peterson a copy of the
petition signed by affected employees. He stated that Mr. Peterson
rejected the bargaining request. However, Mr. Krueger was vague when
testifying about what he said to Mr. Peterson and concerning Mr.
Peterson's claimed rejection of the bargaining request (Tr. 55, 57-58,
59). At one point he admitted that Mr. Peterson did not deny the
negotiability of the issue (Tr. 55), and that they merely visited Mr.
Peterson for the purpose of obtaining information (Tr. 56). Mr.
Krajewski's testimony refers to presentation and rejection of the
petition, and to a Union assertion that the Union wanted no change in
work hours. Mr. Peterson testified that no request to bargain was
mentioned (Tr. 77), that the petition was never presented to him, and
that he had never seen the petition (Tr. 198, 216). Based upon the
observed demeanor of witnesses and the record as a whole, Mr. Peterson's
version of the meeting is deemed to be the more credible account.
Mr. Krueger's February 14, 1983 statement does not refer to a
bargaining demand on Mr. Peterson, nor does it refer to a relevant
meeting with Mr. Peterson on the subject (R. Exh. 10). His February 16,
1983, statement merely refers to a Krueger meeting with Mr. Peterson
before filing of the charge on January 31, 1983, and to general
discussion concerning the Union's claim for premium pay not paid in past
years (R. Exh. 11 at 6). In this regard, it is noted that the original
charge filed mentions only Colonel McDonald and Sergeant Barna as being
the individuals responsible for a refusal to negotiate. Also, evasive
explanations of these elements did nothing to enhance his credibility
(Tr. 61-62).
Evidence in the record establishes that as of the time of the meeting
with Mr. Peterson, neither Mr. Krueger nor Mr. Krajewski were seriously
concerned about the Respondent's plan to change starting and quitting
times. Instead, they were concerned about the Respondent's failure to
pay Sunday premium pay in past years to employees entitled to such pay
(Tr. 177, 187-188, 193-194, R. Exh. 11). Mr. Krueger argued that a
change had occurred in the manner of awarding Sunday premium pay, and
stated that it had not been paid to bargaining unit employees in
accordance with pertinent regulations. Based on this argument, premium
pay not previously paid in accordance with regulations was sought on
behalf of affected bargaining unit employees (Tr. 200, 217). /20/ The
discussion also related to the method used by the Respondent in
computing Sunday premium pay (Tr. 28-29). The Union requested
documentation and information on this issue because the Union believed
that premium pay in the past had been mistakenly computed (Tr. 186,
193). Mr. Krueger asked Mr. Peterson for a copy of pertinent Federal
Personnel Manual provisions so that he could evaluate how they compared
with Air Force regulations relating to Sunday premium pay (Tr. 54). Mr.
Peterson responded to this request for information (Tr. 195), by
researching pertinent portions of the Federal Personnel Manual, and by
discussing the meaning of these provisions (Tr. 59). Copies of
pertinent Federal Personnel Manual provisions were provided to Mr.
Krueger and Mr. Krajewski (Tr. 28-29, 89, 117-118, 184-185, 193,
199-201, G.C. Exh. 5).
During the meeting Mr. Krueger and Mr. Krajewski studied relevant
Federal Personnel Manual provisions (Tr. 89, 117-118). Mr. Peterson
explained that the issue of backpay was not a matter under the
jurisdiction of the Civilian Personnel Office; but rather one which
concerned the GFAFB Budget Officer in Accounting and Finance. He
suggested that they contact Mr. Fritz, the Base Budget Officer for
assistance (Tr. 30, 55-56, 58, 89, 117-118, 177, 195). Mr. Krueger's
testimony established that Mr. Peterson alluded to the fact that Mr.
Fritz had been successful in obtaining backpay for others in cases of a
similar nature, thus indicating that the substance of their conversation
dealt with this issue as distinct from issues relating to bargaining
over the change in hours (Tr. 60).
In this context, Mr. Krueger vaguely admitted that Mr. Peterson did not
refuse to negotiate, but merely declined to discuss Federal Personnel
Manual provisions further (Tr. 58-60).
Mr. Krueger and Mr. Krajewski Meet with GFAFB Budget Officer
Shortly after their meeting with Mr. Peterson, Mr. Krueger and Mr.
Krajewski pursued Mr. Peterson's suggestion and called upon Mr. Fritz,
the GFAFB Budget Officer (Tr. 30-31, 89-90). Mickie Kuchenmeister, the
GS-4 payroll clerk contacted earlier by Mr. Krajewski for information,
was called in by Mr. Fritz, and requested to participate in the meeting
(Tr. 72-73, 90-91, 176). Mr. Krueger admitted that he did not visit Mr.
Fritz to negotiate the change, but stated, "we went there for
information" (Tr. 56). Mr. Krajewski acknowledged that Mr. Fritz had no
authority to bargain over shift changes (Tr. 118). Mr. Krueger also
testified that he was endeavoring to find out how to receive an award
for Sunday premium pay not paid to affected employees over the years
(Tr. 62-63).
Mr. Krueger and Mr. Krajewski were briefed by Mickie Kuchenmeister
concerning Respondent's receipt of information leading to the conclusion
that Sunday premium pay had not been paid in accordance with regulations
(Tr. 91). Mr. Fritz reported that he did not have funds to reimburse
for this pay, and that he had contacted Mr. Egstad to determine how to
avoid payment of Sunday premium pay (Tr. 92, 32). /21/
Mr. Fritz supplied the Union representative with a copy of the
pertinent portion of Air Force Regulation 177-104, Chapter 5, dated
September 2, 1981, relative to Sunday premium pay (G.C. Exh. 6, Tr. 32).
They discussed what it meant (Tr. 32). Federal Personnel Manual
Supplement 532-1, dated April 14, 1980, was also discussed (Tr. 32-33).
There was no specific indication of a request to negotiate or a refusal
to negotiate, and the facts indicate that such a request would have been
incongruous in the context of the conversation reflected in the record.
Mr. Krueger's testimony relating to the discussion with Mr. Fritz was
vague, and Mr. Krajewski indicated that the meeting was primarily a fact
finding mission. However, in the context of the discussion and actions
outlined, and after careful evaluation of the record as a whole, it is
clear that the evidence did not establish that the Union interposed any
bargaining request, albeit inappropriate, at Mr. Fritz' level of
management.
Mr. Krueger's Alleged Meeting with Mr. Mohr and Mr. Peterson
Mr. Krueger testified that after the meeting with Mr. Fritz, he had a
conversation with Mr. Mohr in the presence of Mr. Peterson, and that
during such conversation he demanded that the Respondent negotiate on
the shift change issue. /22/ Mr. Mohr allegedly refused to bargain.
The conversation was reported as occurring just before commencement of a
bargaining session relating to the negotiation of a collective
bargaining agreement. Mr. Krueger was not certain whether the
conversation described occurred prior to the shift change on January 16,
1983. Mr. Mohr and Mr. Peterson both unequivocally denied that any
bargaining request was made as claimed or otherwise, and that the
subject was never discussed at anytime during contract negotiations or
otherwise (Tr, 179, 230-231, 239). However, Mr. Mohr did state that had
such a request been interposed in a timely manner, Mr. Krueger would
have had the right to bargain over the decision to effect the change
(Tr. 233, 235). The testimony of Mr. Mohr and Mr. Peterson was credited
on this factual issue. It was noted that neither the February 14, 1983
statement nor the February 16, 1983 statement executed by Mr. Krueger
during investigation of the charge referred to such a meeting with Mr.
Mohr; and Mr. Krueger was evasive concerning his omitting facts
relating to such a meeting (Tr. 65-67). It is difficult to believe that
the Authority investigator would have omitted such an important
conversation had Mr. Krueger related it to the investigator as claimed.
Change in Tours of Duty Effectuated
On January 16, 1983, the plan to change starting and quitting times
was effectuated. For a short period before the change in hours obviated
the need to pay Sunday premium pay to second shift employees, Respondent
did in fact recognize the obligation to pay Sunday premium pay to
employees who worked 8-hour shifts starting at 10 p.m. on Sundays (Tr.
22, 26). Union efforts to obtain reimbursement for back Sunday premium
pay not paid had not been resolved as of the date of the hearing (Tr.
217-218).
In considering the bargaining obligation relating to the Respondent's
determination to change starting and quitting times of Roads and Grounds
employees, it is noted that the change as proposed and effectuated, did
not concern a matter bargainable only at the election of an agency.
That is, it did not explicitly relate to the numbers, types and grades
of employees assigned so as to fall within the purview of Section
7106(b)(1) of the Statute. Accordingly, there was an obligation to
bargain concerning the decision to effectuate the change, as well as the
impact and implementation of the decision. Veterans Administration
Medical Center, Bath, New York, and Veterans Administration, Washington,
D.C., 12 FLRA No. 107, 12 FLRA 522 (August 16, 1983); Internal Revenue
Service, Los Angeles District, 10 FLRA No. 107, 10 FLRA 653 (December
13, 1982); Department of the Treasury, United States Customs Service,
Region I, Boston, Massachusetts, and St. Albans, Vermont District
Office, 10 FLRA No. 100, 10 FLRA 566 (December 3, 1982); Department of
the Treasury, United States Customs Service, Region VIII, San Francisco,
California, 9 FLRA No. 68, 9 FLRA 606 (July 21, 1982); United States
Customs Service, Region V, New Orleans, Louisiana, 9 FLRA No. 15, 9 FLRA
116 (June 16, 1982). However, under the provisions of Section 2423.18
of Authority Rules and Regulations, 5 C.F.R. 2423.18, the General
Counsel has the burden of proving the allegations of an unfair labor
practice complaint by a preponderance of the evidence. In this case the
burden of proving that the Respondent breached its bargaining obligation
was not met. The complaint rests almost entirely upon the testimony of
Mr. Krueger and Mr. Krajewski. Their testimony was not deemed credible
in critical areas relied upon as a basis for the General Counsel's case.
The evidence demonstrated that the Union was supplied with notice of
the change by Sergeant Barna when he addressed a copy of Colonel
McDonald's December 27, 1982, memorandum to Mr. Krueger and placed it in
a distribution box "a few hours" before Sergeant Barna announced the
proposed change to employees, /23/ and posted a copy of the notice on a
bulletin board in accordance with the provisions of the collective
bargaining agreement. The evidence of Sergeant Barna's transmission of
notice to Mr. Krueger was deemed credible, and it was not otherwise
contradicted or disproven by evidence introduced by the General Counsel.
Even assuming that Mr. Krueger did not, as claimed, receive the copy
dispatched to him, it would not be possible to conclude, under such
circumstances, that the Respondent was guilty of an unfair labor
practice based upon a failure to provide adequate notice of the change.
Department of the Treasury, U.S. Customs Service, Region 1, Boston,
Massachusetts, 1 FLRA No. 49, 1 FLRA 398 (June 6, 1979), U.S. Customs
Service, Case No. 3-CA-30160, OALJ-83-119 (August 8, 1983). Moreover,
it is clear that the Respondent posted notice of the proposed change in
accordance with the provisions of the collective bargaining agreement.
/24/
Counsel for the General Counsel endeavored to show that appropriate
bargaining requests were made by the Union and rejected by the
Respondent. The record reveals either that no such requests were made,
or in the alternative, that there was a failure to prove by a
preponderance of the evidence, that such requests were in fact made.
/25/
In light of conclusions outlined, it is recommended that the
Authority issue the following Order pursuant to 5 C.F.R. 2423.29.
IT IS HEREBY ORDERED, that the complaint in Case No. 7-CA-30170, be,
and it hereby is, dismissed.
/1/ Under authority provided in 5 C.F.R. 2423.19(r), a request filed
by counsel representing the General Counsel to correct the transcript is
hereby made a part of the record. However, a number of additional
errors in the hearing transcript were noted. These additional errors,
together with errors noted by counsel representing the General Counsel
are reflected in an appendix accompanying this Decision. The motion to
correct is granted in all respects, and the additional corrections
reflected in the Appendix are also approved.
/2/ The record disclosed that the Union was the exclusive
representative of a unit consisting of all eligible GFAFB civilian
employees paid from appropriated funds, excluding management officials,
employees engaged in civilian personnel work other than those in a
purely clerical capacity, and professional employees. Roads and Grounds
employees affected by the change were members of this bargaining unit.
/3/ Sunday premium pay was regularly paid to employees who worked
8-hours shifts beginning at 10 p.m. on Saturday night.
/4/ Federal Personnel Manual Supplement 532-1, Subchapter S8, dated
April 14, 1980, in effect during pertinent periods involved in this
case, provided in part: "Pay for Sunday work. (1) Authorization of pay
for Sunday work. Under 5 U.S.C. 5544 and 5 U.S.C. 5550, a wage employee
whose regular work schedule includes an 8-hour period of service a part
of which is on Sunday is entitled to additional pay at the rate of 25
percent of his/her hourly rate of basic pay for each hour performed
during that 8-hour period of Service. . . . " (G.C. Exh. 5).
Air Force Regulation 177-104, Chapter 5, dated September 2, 1981,
also in effect during pertinent periods, reflects similar language (G.C.
Exh. 6).
/5/ Article 9 of the collective bargaining agreement governing the
parties identified the Union President or his designee as the
representative through whom the Union was to initiate requests for
consultation or negotiation (G.C. Exh. 2). Mr. Krueger had been serving
as President for 3 1/2 years as of the date of the hearing (Tr. 17).
/6/ Mr. Krueger denied that he or the Union ever received a copy of
the memorandum (Tr. 18, 73-74). However, neither this denial nor other
elements in the record operated to discredit Sergeant Barna's testimony.
Serious credibility problems, posed by Mr. Krueger's testimony, tend to
cast serious doubt upon Mr. Krueger's denial.
/7/ The tours of duty involved were classified as "uncommon" because
employees changed shifts in rotation, and because they were not always
working the same hours and days (Tr. 205). The applicability of the
quoted contract provisions to the shift changes involved herein was not
controverted by counsel representing the General Counsel or counsel
representing the Charging Party (Tr. 204-205).
/8/ Details outlined by Sergeant Barna were those set forth in
Colonel McDonald's December 27, 1982 memorandum (Tr. 144). This
document was prepared in accordance with a form prescribed in GFAFB
Supplement I, AFR 40-610, dated July 16, 1982, which was incorporated by
reference in Article 21 of the collective bargaining agreement, for the
purpose of effecting planned shift changes and giving notice to affected
employees (G.C. Exh. 2). As previously noted herein, GFAFB Supplement
I, provided for management approval of the completed form to allow at
least 7 days advance notification to affected employees.
/9/ Mr. Krajewski testified that Sergeant Barna notified those
present that the Union had already agreed with the planned change, and
that he (Krajewski) expressed disagreement with Sergeant Barna's
statement (Tr. 82, 83). Sergeant Barna denied making such a statement
(Tr. 148). Sergeant Barna's testimony on this factual issue is
credited. In addition to a number of other elements in the record
reflecting a basis for discrediting Mr. Krajewski, it is noted that Mr.
Peppard, a Union witness provided a detailed account of the meeting and
omitted the verbal exchange described by Mr. Krajewski. When asked
about the reaction of employees who attended the meeting he stated,
"quite a few of us. . . blamed the union . . . " (Tr. 124). When asked
why the employees blamed the Union, Mr. Peppard stated, "(w)e figured
those people had done it through negotiations" (Tr. 125). He made no
reference to a statement or statements of the type included by Mr.
Krajewski. It is concluded that either Mr. Krajewski misunderstood what
was said by Sergeant Barna, or that Sergeant Barna did not make the
statement attributed to him.
/10/ Although the petition purports to waive employee interest in
premium pay for the shift beginning at 10 p.m. on Sunday, employees made
a concerted effort to establish entitlement to premium pay for tours of
duty worked in prior years. The Union, through Mr. Krueger, thereafter
filed for back premium pay on behalf of affected employees (Tr. 127,
217-218).
/11/ Mr. Peppard testified that Sergeant Barna remained during the
period when the petition was being signed (Tr. 129). Mr. Krajewski's
testimony contradicts this account (Tr. 82, 84-85, 87-88). The latter
account is fully corroborated by Sergeant Barna's testimony on the
subject, in that he testified that Mr. Peppard merely raised the
possibility of a petition while in the presence of Sergeant Barna (Tr.
139-140, 144). Accordingly, the Krajewski-Barna account is credited on
this factual issue.
/12/ Mr. Krueger testified that he believed it was December 27th (Tr.
24). Mr. Krajewski's testimony disclosed that on December 27th both he
and Mr. Krueger were fully aware of Respondent's decision not to
implement the change until January 16, 1983 (Tr. 108). This decision
was made at the meeting in question. Mr. Bennett also stated that he
thought the meeting occurred on December 27th (Tr. 151). Testimony to
the effect that the December 27, 1982 memorandum announcing the change
was not approved by officials above Colonel McDonald, until December 28,
1982 (Tr. 203-204), was not considered significant in light of clear
evidence that G.C. Exhibit 3 (an unendorsed version of the memorandum),
was posted by Sergeant Barna on December 27th.
/13/ Mr. Egstad was a member of the bargaining unit (Tr. 175). He
did not remain for the entire meeting. He met briefly with Mr. Krueger
and Sergeant Barna shortly before Mr. Bennett arrived, and departed soon
after Mr. Bennett arrived.
/14/ Questions posed at this point in the record suggest that counsel
representing the General Counsel did not consider Mr. Krajewski as being
present at this meeting.
/15/ It is noted that Mr. Krajewski testified that he did not attend
the meeting until the day after the record reflects that the meeting
occurred (Tr. 87), yet, he testified that as of December 27, 1982, the
day of the meeting, he had knowledge concerning the results of the
meeting (Tr. 108). Conflict in Krajewski's testimony gives rise to
serious inquiry concerning key elements relating to his account of the
meeting. Also, it was noted that in two sworn statements executed by
Mr. Krueger, on February 14 and 16, 1983, Mr. Krajewski was not
mentioned as an attendee (R. Exhs. 10 and 11).
/16/ Further doubt is case on Mr. Krajewski's claimed presence at
this meeting by statements reflecting an absence of familiarity with
important details of a key position taken by Mr. Krueger at the meeting.
Mr. Krajewski's testimony reflects that he erroneously believed that
the collective bargaining agreement imposed a 2-week notice period
instead of 1 week (Tr. 87). He also stated that initially the
Respondent supplied a 7-day notice period (Tr. 92). This would have
been adequate notice under the terms of the agreement. He stated that
the Respondent provided one additional week before implementation (Tr.
87), and then later corrected his reply to reflect that an additional
2-week period was provided prior to implementation of the change (Tr.
92). If Mr. Krajewski had attended the meeting, it is unlikely that he
would have so completely misunderstood the issues involved.
/17/ This testimony further establishes that the Krueger, Bennett,
Barna, Egstad meeting occurred on December 27, 1982.
/18/ Mr. Krajewski's testimony also addressed this issue. A lack of
awareness as to what was in fact transpiring, reflected therein,
provides more reason to question testimony that he was present. He
related that he and Mr. Krueger asked Sergeant Barna and Mr. Bennett why
the Respondent had "changed" the shifts without first notifying the
Union (Tr. 87). However, there would have been no reason to pose such a
question because the shift had not changed as of the date of the
meeting, and 6 days notice had in fact been provided to the Union.
/19/ Mr. Krueger testified that the meeting occurred during the week
of December 27, 1982 (Tr. 54-55). Mr. Peterson recalled that the
meeting occurred early in January 1983 (Tr. 177, 184, 189). Mr. Krueger
and Mr. Krajewski testified that the meeting occurred on the same day as
the meeting with Mr. Bennett and Sergeant Barna (Tr. 28-29, 87, 118);
however, it has been determined that the meeting with Mr. Bennett and
Sergeant Barna occurred on December 27, 1982. On this issue Mr.
Peterson's testimony established that Mr. Peterson was at home on
December 27, 1982, due to weather conditions (Tr. 198-199).
/20/ Mr. Krueger acknowledged that he was trying to determine how to
proceed in order to obtain backpay for bargaining unit members (Tr.
62-63).
/21/ The record is unclear as to whether Mr. Egstad was requested to
avoid payment of Sunday premium pay in the future, or reimbursement for
Sunday premium pay improperly withheld in the past.
/22/ Testimony concerning this bargaining demand was not brought out
during the direct examination of Mr. Krueger. Only, during
cross-examination did he assert that he had requested Mr. Mohr to
negotiate the change.
/23/ This case did not pose issues relating to a "formal discussion"
within the meaning of Section 7114(a)(2)(A) of the Statute as a basis
for the unfair labor practice complaint.
/24/ Although it was necessary to extend the date of implementation
to comply with the collective bargaining agreement, the posting of such
proposed change for the purpose of apprising affected employees, was in
strict accordance with the agreement. Mr. Krueger's February 16, 1983
statement to the Authority noted that, "(t)he union does not allege
management violated any agreement between the parties in connection with
this change of hours" (R. Exh. 11 at 7).
/25/ The record fails to show that requests were made to Mr. Mohr or
Mr. Peterson, appropriate representatives of the Respondent, or to any
other representative of the Respondent. Furthermore, there was no
showing of a refusal to bargain.
Major Wade B. Morrison, USAF
Captain Esther Rada, USAF, for the Respondent
Joseph Swerdzewski, Esquire
Daniel Minahan, Esquire, for the General Counsel
Don Rud, Esquire, for the Charging Party
33 FLRA-ALJ; Case No. 6-CA-30070 August 26, 1983
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE, SAN
ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE, TEXAS, Respondent,
and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617,
Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
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, Fed.
Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to a charge filed on December 30, 1982, by Local 1617,
American Federation of Government Employees, AFL-CIO (hereinafter called
the AFGE or Union), a Complaint and Notice of Hearing was issued on
March 29, 1983, by the Regional Director for Region VI, Federal Labor
Relations Authority, Dallas, Texas. The Complaint alleges that the
United States Department of Defense, San Antonio Air Logistics Center,
Kelly Air Force Base, Texas, (hereinafter called the Respondent or Air
Logistics Center), violated Sections 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute, (hereinafter called the
Statute), by virtue of its action in unilaterally changing existing
terms of employment with respect to the approval of sick leave and
emergency leave requests without affording the Union the opportunity to
bargain over such changes.
A hearing was held in the captioned matter on June 7, 1983, in San
Antonio, Texas. All parties were afforded the 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 which have been duly
considered.
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.
The Union is the exclusive bargaining representative of the
nonsupervisory and nonprofessional employees paid from appropriated
funds and serviced by the Air Force Logistics Command Civilian Personnel
Office at Kelly Air Force Base, Texas. The Union and the Respondent
executed a collective bargaining contract effective for three years from
April 3, 1979. According to the uncontroverted testimony of Mr. Chester
Strogen, a Section Steward, the aforementioned contract currently
governs labor relations at Kelly Air Force Base.
With respect to sick leave and emergency leave, the collective
bargaining agreement provides in pertinent part as follows:
SECTION 23:06: EMERGENCY ANNUAL LEAVE
Annual leave for emergency reasons, except where circumstances
prevent, will be requested by telephone normally within two hours
after the start of the shift to which assigned or by the beginning
of core time if working under flexitime. Employees should request
emergency annual leave by contacting their immediate supervisors
or other persons designated by management to receive such
requests, as soon as possible after the start of their regular
shifts.
If the supervisor and the designee are unavailable to accept the
request, the employee must leave a message with the person
accepting the call identifying reasons for the absence, the
anticipated duration, and the location where the employee can be
reached within 30 minutes of the telephone call. This call will
meet the requirements of this Section. If telephone facilities
are not available, the employee may use the mail channels at the
earliest reasonable time.
Section 23:07: LEAVE FOR DEATH IN IMMEDIATE FAMILY
An employee will be granted annual leave or leave without pay
in case of death in the immediate family or, in the case of a
death of a relative, annual leave or leave without pay will be
granted except where unusual circumstances prevent approval.
Section 23:11: LEAVE APPROVAL
Except in unusual situations, the approval of all annual leave
will be made by the immediate supervisor.
SECTION 24:01: PROCEDURE FOR REQUESTING SICK LEAVE
This Article sets forth comprehensive policies and procedures
pertaining to the approval and use of sick leave by bargaining
unit employees. Employees shall earn and be granted sick leave in
accordance with applicable regulations and the provisions of this
Article. Sick leave requests shall be approved for employees when
they are incapacitated for performance of their duties by
sickness, injury, pregnancy, confinement, medical, dental or
optical treatment or examination, or when a member of the
employee's immediate family is afflicted with a contagious disease
and the employee's presence at work would jeopardize the health of
others, except for reasons stated in Section 24:03. Employees
should request sick leave by contacting their immediate
supervisor, or other persons designated by management to receive
such requests, by telephone as soon as possible after the start of
their regular shifts. If the supervisor and the designee are
unavailable to accept the request, the employee must leave a
message with the person accepting the call identifying the
anticipated duration and the location where the employee can be
reached within 30 minutes of the telephone call.
This call will meet the requirements of this Section. Under
normal circumstances, this request will be made by telephone
within two hours after the shift begins or before the beginning of
core time if the employee regularly works under flexitime. A
written notification, postmarked on the date of the absence, will
be considered notice if telephone service is not available to the
employee. Approval of sick leave for prearranged medical
appointments will be secured from the Employer in advance of the
absence, except in emergency situations.
SECTION 24:02: DOCUMENTATION FOR SICK LEAVE OF MORE THAN 3
DAYS
When an employee is out for more than three consecutive
workdays and attended by a physician, a certificate from the
physician will be required. If the employee is out sick for more
than three consecutive workdays and not attended by a physician,
the employee's personal written statement as to the nature of the
illness, and that he was incapacitated for duty, will be accepted
in lieu of a doctor's certificate except as set forth in Section
24:03 below.
SECTION 24:03: IDENTIFICATION AND CORRECTION OF SICK LEAVE
ABUSE
An employee will not be required to furnish a doctor's
certificate to substantiate a request for three days or less sick
leave, unless there is a documented reasons to believe the
employee is abusing sick leave as set forth below.
a. There are certain sick leave trends which, when appearing
on a continual basis could indicate sick leave abuse:
(1) Absence after paydays.
(2) Sick leave before or after holidays.
(3) Monday-Friday sick leave.
(4) Absences during heavy workloads or undesirable duties.
(5) Intermittent sick leave use of short duration with vague
excuses.
b. When a supervisor suspects that an employee is abusing his
sick leave, he should look further into the individual's past
leave records, using available sick leave data to provide more
information. The supervisor will also explore the causes of the
employee's chronic absenteeism and assist in resolving the
conflict, provide additional personal reminders of the importance
of careful use of sick leave, etc.
c. Once a supervisor has identified sick leave abuse, the
supervisor will counsel the employee with respect to the use of
sick leave, and a record of the counseling will be recorded on the
971 file. Bargaining unit employees will not be required to
provide doctor's certificates for sick leave requests solely on
the basis of a mechanized leave usage report that indicates the
employee's use of sick leave is abnormal.
d. If the sick leave record subsequent to the counseling does
not show elimination of sick leave abuse, the employee will be
given written notification requiring the employee to provide
doctor's certificates for all absences for which sick leave is
requested. This notice should contain justification as to why the
employee was given the additional requirement, such as stating the
number of hours of sick leave used in a specific period, his sick
leave pattern and balance, etc. The requirement to furnish
doctor's certificates, once imposed, will be reviewed at least
every six months to determine if it should be continued. At the
time of the review, the employee will be counseled and advised in
writing if the requirement is to be continued or cancelled. The
supervisor should take care to be firm, fair, and consistent not
only in resolving sick leave abuse but in all aspects of sick
leave administration.
On September 16, 1982, Mr. Elroy Haberlandt, Deputy Director of
Maintenance issued a letter concerning "Leave Administration and
Standards of Conduct" to the supervisors within Respondent's Maintenance
Directorate. Attached to the letter was an Information Sheet entitled
"Leave Administration" which was subsequently distributed to unit
employees. The parties stipulated that the issuance of the
aforementioned documents occurred without giving the union any prior
notice of the documents or any opportunity to bargain over the contents
and/or impact of the documents.
The September 16th letter pointed out that absenteeism is the number
one administrative problem and that it must and can be stopped "through
use of consistent leave administration as well as constructive and
consistent administration of discipline by all supervisors." With
respect to sick leave and emergency leave the letter went on to state as
follows:
Sick leave should be requested and approved only for medical
appointments and when an employee is too ill or too seriously
injured (incapacitated) to work. I am concerned about unscheduled
leave or so called "emergency leave." Indiscriminate approval of
requests for unscheduled leave (either sick or annual) must be
stopped. It can be stopped by all supervisors tightening up on
approving unscheduled leave. It can not be stopped so long as we
have some supervisors who always approve called-in leave requests.
RCC Chiefs are expected to ensure that first level supervisors
are approving only those requests for unscheduled leave that are
truly justified.
Division level attention to daily attendance and work
performance is needed to ensure consistent control is practiced.
Those supervisors found to be consistently lax in administering
leave or ignoring unacceptable work performance should be
considered for discipline. The attached information sheet on
leave and standards of conduct will be distributed to all
employees so that they will know acceptable standards expected by
management.
The Information Sheet on "Leave Administration" which was attached to
the September 16th letter and subsequently distributed to the unit
employees referenced FPM Regulation 630, Air Force Regulation 40-630 and
the Collective Bargaining Agreement. The particular provisions of the
information sheet which are alleged in the complaint as unilateral
changes in existing terms and conditions of employment read as follows:
III Sick Leave. (a) Appointments with doctors and dentists are
normally made several days in advance, in which case, you must get
your supervisor's approval before you take off. Normally, 4 hours
is the maximum amount of leave authorized for visits to doctor or
dental offices. When your shift starts early (0600-0700), and
ends early (1500-1600) you can easily schedule your appointments
late enough to use less than 4 hours.
IV Emergency Leave: This is either annual or sick leave that
has not been approved in advance. There are times when everybody
has to take off unexpectedly. You have been furnished a SA-ALC
Form 315, Sick or Emergency Leave Reporting, which directs you to
call your immediate supervisor or another designated individual
within two hours of the beginning of your shift. Simply because
you do call does not guarantee your request will be approved.
Unless you have a true emergency of major proportions, your
request should not be approved. Your supervisor will decide on an
individual basis. You are reminded that an ill family member is
not usually an emergency, car trouble is not an emergency (you are
expected to have an alternate way to get to work) and a doctor's
appointment is not usually an emergency. Unless an ill person is
taken to a hospital Emergency Room, there are few doctors who see
patients before 1000). You may be required to furnish evidence of
the claimed emergency before your request is approved. /1/
With respect to the practice of the first line supervisors approving
or not approving unscheduled sick leave and emergency leave after
September 16, 1982. Mr. Chester Strogen, a section steward, testified
that subsequent to September 16, 1982, there was a difference in the
manner in which first line supervisors dealt with leave requests.
According to Mr. Strogen, employee Mike Mendoza called in sick within
two hours of his starting time and was told by his supervisor that if he
did not bring in a doctor's excuse he would be charged as an AWOL. Mr.
Mendoza subsequently reported for work and was later sent home and
allowed only seven hours sick leave. Although not entirely clear from
Mr. Strogen's testimony, it appears that Mr. Mendoza had a low leave
balance and was working under a "3rd AWOL." Mr. Strogen admitted that he
did not know what leave balance, if any, Mr. Mendoza possessed at the
time of the incident.
Mr. Strogen further testified that at the time of the Mendoza incident,
Mr. Mendoza's supervisor told him, Mr. Strogen, that Mr. Mendoza would
be AWOL because his "leave was too low to give him sick leave."
Mr. Strogen also testified that employee Aubrey Furey was put on AWOL
for a day that he failed to report to work despite the fact that his
wife called in and reported that Mr. Furey, her husband, had a bad back.
Mr. Strogen acknowledged that he did not know whether Mr. Furey had
followed established procedures which require the employee to either
call in personally within two hours of his starting time or drop a
letter postmarked the same day to his supervisor if a telephone was not
available.
Additionally, Mr. Strogen also related an incident involving employee
Donald Dennis who was denied emergency leave for a death in the family.
According to Mr. Strogen, the supervisor subsequently informed Mr.
Dennis that the only reason "he AWOLed him was not that it wasn't an
emergency, but he didn't use the proper channels to go through to get
the leave."
With regard to this own personal experiences, Mr. Strogen testified
that prior to September 16, 1982, he was never limited to only four
hours for a doctor's appointment. Subsequent to September 15, 1982, on
one occasion he took only four hours sick leave for a doctor's
appointment. However, his testimony does not indicate whether he did it
on his own or at the instruction of his first line supervisor. The
first line supervisor involved in this incident was not the same first
line supervisor he had been working for in the past.
Mr. LeRoy Gonzales, a Union Division Steward, testified that after
September 16, 1982, first line supervisors would issue "Letters of
Responsibility" /2/ to employees without first engaging in counseling
concerning the employees' low leave balances. According to Mr.
Gonzales, the supervisors do not inquire as to the reasons for the low
leave balances before issuing the Letters of Responsibility. Thus, if a
man had just left the hospital after an extended stay and had a low
leave balance he would nevertheless be issued a Letter of
Responsibility. Further, according to Mr. Gonzales, when an employee
announces his intention of seeing a doctor in the near future, the
respective supervisor tells the employees to make his appointment in the
afternoon or after work. Mr. Gonzales acknowledged taking more than
four hours for medical appointments without being listed as AWOL.
Mr. Gregoria Barrera related an experience that he encountered with
management after the September 16, 1982 letter. According to Mr.
Barrera he called in sick and was instructed by his supervisor to report
to work. Subsequently a second line supervisor sent him home. After
complying with an outstanding Letter of Responsibility and presenting a
doctor's certificate for his two day absence, Mr. Barrera was paid for
15 hours of work and charged with being AWOL for one hour. Mr. Barrera
acknowledged that an employee under a Letter of Responsibility is
governed by more strict rules than the average rank and file employee
and is required to document his sick leave with a doctor's report. Mr.
Barrera also acknowledged having discussions with his various
supervisors throughout his 13 years with Respondent wherein the
supervisors have encouraged him to save his sick leave and use it only
when necessary.
The final witness called by the General Counsel, Mr. Jose Vasquez
testified that subsequent to the September 16th letter his supervisor,
Mr. Richard Ruiz, informed the employees that they could not get sick on
Mondays, Fridays, and Paydays. Further, according to Mr. Vasquez, in
May of 1983 he was forced to produce a doctor's statement when he took
sick leave on a Friday, and was subsequently given a Letter of
Responsibility. Prior to September 16th, according to Mr. Vasquez,
leave requests were always granted.
Ms. Eva Webb who drafted both the September 16, 1982 letter to the
supervisors as well as the attachment thereto, testified that the
documents were merely a restatement of the existing policies on leave
administration and issued for the sole purpose of reminding both
supervisors as well as the employees of Respondent's policies with
respect to leave administration. According to Ms. Webb, approximately
twenty-five percent of the supervisors had not been complying with the
existing policies and the documents were attempt to make them conform.
/3/ Further according to Ms. Webb the documents were her interpretation
of the Federal Personnel Manual, the Supervisors Personnel Handbook and
the Air Force Regulations which are identified in the Record as
Respondent Exhibits 2, 3, and 4.
The aforecited three documents make it clear that the approval or
disapproval of emergency and sick leave for doctor's appointments is
discretionary with first line supervisors. Additionally, the
Supervisors Personnel Handbook, effective January, 1979, notes under the
caption "Use of Sick Leave" that "only the amount of sick leave actually
needed for the examination will be granted, normally 1-4 hours."
Second and Third Line Supervisors, Joseph Rodriguez, Nick Herrera,
Samuel der Tatevasion, James Gardner, Jr., Raymond Vargas and Gregorio
Flores, Jr., all testified that the September 16th letter and the
attachment thereto was nothing more than a reiteration of existing
policies with respect to the granting of sick leave and emergency leave
requests. They further testified that inasmuch as they viewed the
September 16th letter and its attachment as being existing policy they
took no action to initiate changes by their subordinate first line
supervisors in the manner sick and emergency leave requests were
handled. With respect to the approval of only four hours of sick leave
for doctor's appointments, Mr. Rodriguez testified that he had always
handled every request on a case by case basis, taking into account the
fact that many doctor's examinations could consume more than four hours
per visit. According to Mr. Rodriguez, this was particularly true when
examinations were conducted in two stages, i.e., with an empty stomach
and after a full meal. Additionally, it had always been Mr. Rodriguez'
policy to counsel his employees with respect to the advantages of
conserving sick leave by taking their medical appointments in the
afternoon just prior to quitting time.
In a further attempt to support its position that there had been no
changes in policy with respect to granting requests for emergency leave
and sick leave, Respondent submitted a number of arbitration decisions
involving the denial of emergency leave requests prior to September 16,
1982. One of such decision indicates that prior to September 16, 1982,
Respondent had denied emergency leave to an employee on the ground that
car trouble was an insufficient basis for granting two days emergency
leave.
Respondent urges dismissal of the instant unfair labor practice
complaint on the ground that the September 16th letter and Information
Sheet was nothing more than a reiteration of existing policies and
procedures with respect to granting or denying requests for unscheduled
sick leave and emergency leave. In support of its position it cites the
testimony of Ms. Webb, who drafted both the September 16th letter and
attached Information Sheet, as well as the testimony of five second and
third line supervisors. Additionally, Respondent relies on an FPM
letter, the Air Force Regulations and the Supervisors Personnel
Handbook.
The General Counsel, on the other hand, takes the position that the
Information Sheet changed existing policies and procedures governing the
administration of unscheduled sick leave and emergency leave requests.
In support of its position it relies on the testimony of a number of
union stewards with respect to a number of incidents occurring
subsequent to the issuance of the Information Sheet and the absence of
any similar restrictions in the FPM letter or Air Force Regulations.
Although the General Counsel acknowledges that the Supervisors Personnel
Handbook does allude to four hours as the amount of sick leave necessary
for a doctor's appointment, it is his position that the Supervisors
Personnel Handbook is merely guidance to supervisors and does not
establish, like the Information Sheet, a mandatory four hour limitation
on sick leave requests for doctor's appointments.
With respect to the reference to emergency leave on the Information
Sheet, the General Counsel takes the position that certain statements,
i.e., (1) that the emergency be a true emergency of major proportions,
(2) car trouble, doctor's appointments and ill family members are not
emergencies, and (3) evidence supporting the claimed emergency may have
to be supplied before emergency leave is approved, constitute changes in
existing policy and practice which "are wholly a creature of the
author's imagination" without support in existing policies and
practices, the FPM letter or Air Force Regulations.
While I agree with the General Counsel that the disputed language of
the Information Sheet concerning sick leave and emergency leave finds
little, if any literal support, in either the Air Force Regulations, the
FPM Letter, or the Collective Bargaining Agreement. I can not find that
this fact standing alone establishes a unilateral change in policies and
procedures with respect to the administration of sick leave and
emergency leave by first line supervisors. This is particularly true in
the absence of any evidence indicating that the provisions of the
collective bargaining agreement, standing alone, were to be the sole
procedures governing the administration of sick leave and emergency
leave requests or that the disputed language of the Information Letter
amounted to a change in the negotiated provisions of the collective
bargaining agreement with respect to sick leave and emergency leave
requests. In this latter connection it is noted that the collective
bargaining agreement, particularly Article 24, Section 24.01 makes it
clear that the granting of sick leave is subject to the existing
regulations which specifically state that the use of sick leave is a
qualified right for purposes of doctor's appointments, etc., subject to
prior approval of first line supervisors. Inasmuch as the regulations
are silent as to the amount of time to be allotted for medical
appointments, it would appear that a final decision thereon would be at
the discretion of the employee's first line supervisor.
With respect to annual leave, the collective bargaining agreement as
well as the applicable regulations require that annual leave be
scheduled in January of each year subject to the approval of the
supervisor involved. While emergency leave is not specifically defined
in either the regulations or the contract, it appears that emergency
leave is unscheduled annual leave requested on the same day that an
employee is scheduled for work. According to both the collective
bargaining agreement and the regulations, such emergency leave must be
requested of, and approved by, the employee's immediate supervisor
within two hours of the employee's scheduled starting time. Absent a
timely request and approval by the employee's immediate supervisor, the
employee is listed as AWOL. It further appears from the contract that
the only time an employee can be assured of unscheduled annual leave,
i.e., emergency leave, would be in the case of a death in his immediate
family.
Otherwise, all emergency leave requests appear to be at the sole
unfettered discretion of the employee's first line supervisor, whose
actions thereon are subject to appeal via certain prescribed forms.
In view of the above considerations, I find that the provisions of
the collective bargaining contract, standing alone, were not to be the
sole criterion for the administration of sick leave and emergency leave
requests and that the disputed language of the Information Sheet neither
conflicts with, nor constitutes a change in the negotiated provisions of
the collective bargaining agreement in the area of sick leave and
emergency leave requests.
I further conclude that if the General Counsel is to succeed with
respect to the allegations of the instant complaint it is incumbent upon
him to demonstrate by a preponderance of the evidence that the disputed
language in the Information Sheet constitutes a departure from existing
policies and procedures in the administration of sick leave and
emergency leave requests. Having reviewed the record in its entirety, I
find that the General Counsel has failed in such endeavor.
In support of his position the General Counsel has presented the
testimony from four employees, namely Gregoria Barrera, Jose Vasquez,
LeRoy Gonzales, and Chester Strogen.
Mr. Barrera's testimony concerned an incident where he called in sick
and was required by his supervisor to report to work. He was
subsequently sent home and required to submit a doctor's certificate
before being credited with 15 hours of sick leave. Other than relating
the foregoing event, Mr. Barrera's testimony was devoid of any evidence,
whatsoever, bearing on the disputed language of the Information Sheet.
Mr. Vasquez testified that subsequent to the distribution of the
Information Sheet his supervisor informed the employees in his section
that they could not get sick on Mondays, Fridays, and Paydays and that
he was forced to produce a doctor's certificate when he took sick leave
on a Friday. Further, according to Mr. Vasquez, prior to the
distribution of the Information Sheet, sick leave requests were always
granted. Other than relating the foregoing testimony, Mr. Vasquez's
testimony was also devoid of any evidence, whatsoever, bearing on the
disputed language of the Information Sheet.
Mr. Gonzales testified that subsequent to the distribution of the
Information Sheet first line supervisors would issue Letter of
Responsibility to employees with low sick leave balances without first
engaging in counseling or inquiring as to the reasons for their
respective low sick leave balances. He further testified that
supervisors, when informed by employees that they intended to take sick
leave for doctor's appointments, would tell the employees to schedule
their doctor's appointments in the afternoon or after work.
Finally, Mr. Gonzales related an incident where a supervisor refused to
allow an employee to leave work to assist an ill family member.
Mr. Chester Strogen related two incidents involving unit employees
being denied sick leave by their supervisors. Neither of the incidents
involved the disputed sick leave provisions in the Information Sheet.
Additionally, Mr. Strogen testified with respect to an incident where
another employee requested emergency leave because of a death in the
family. The request was denied, not because it was not an emergency,
but because the employee had failed to follow the proper procedures.
Finally, Mr. Strogen testified that prior to the distribution of the
Information Sheet there was no restriction on the amount of time
allotted to an employee for doctor's appointments.
A review of the above testimony fails to establish by a preponderance
of the evidence that the disputed language in the Information Sheet
changed existing policies and procedures with respect to the
administration of sick leave and emergency requests. Other than the
statement of Mr. Strogen that prior to the distribution of the
Information Sheet there had been no restriction of the amount of time
allotted for doctor's appointments, the remainder of the testimony
presented by the General Counsel's witnesses, for the most part,
concerned events or incidents involving the denial of sick leave or
emergency leave for reasons other than the disputed language contained
in the Information Sheet which is alleged to be a change in prior
practice and procedures with respect to the administration of sick leave
and emergency leave requests. Additionally, aside from a general
statement from one of the General Counsel's witnesses that prior to the
issuance of the Information Sheet all leave requests had always been
granted, no specific evidence was presented to establish that any
employee in the past had been granted emergency leave for car trouble,
illness of a family member or for other than a "true emergency." In the
absence of such evidence, I question how a change in prior practice can
be established.
While I do not question the veracity of any of the General Counsel's
witnesses, I can not on the basis of such non specific testimony from
some four out of several thousand employees conclude that their limited
experience with their immediate supervisors reflects the prior general
practice of some one hundred or more first line supervisors in the
administration of sick leave and emergency leave requests. In reaching
this conclusion, I make no findings concerning the quantum of evidence
necessary to establish the existence of a prior practice, but merely
conclude, upon the basis of the entire record, insufficient evidence
exists to establish that the disputed language of the Information Sheet
amounted to a change in existing policies and practices with respect to
the administration of sick leave and emergency requests by first line
supervisors.
In view of the foregoing findings and conclusions, it is hereby
recommended that the Authority dismiss the Complaint in its entirety.
/1/ The underlined portions of the foregoing quotation constitutes
the substantive changes in the administration of sick leave and
emergency leave which the General Counsel relies upon in support of his
contention that Respondent violated Sections 7116(a)(1) and (5) of the
Statute. Paragraphs I and II of the Information Sheet were a general
summary of the existing leave regulations and suggestions on how to
conform to same.
/2/ According to Mr. Gonzales, a Letter of Responsibility merely
informs the employee as to what is in the contract concerning the use of
leave. It is also requires the production of doctor's certificate
whenever sick leave is taken. The Letter of Responsibility explains the
procedures to be used for unscheduled leave.
/3/ According to Ms. Webb, the Directorate of Maintenance at Kelly
Air Force Base employs about 7000 employees. Further according to Ms.
Webb there are about 1000 supervisors working on the base. Of the 1000
supervisors, about 100 are first line supervisors.
Major Lewis G. Brewer, for the Respondent
James E. Dumerer, Esquire, for the General Counsel
Steven M. Angel, Esquire, for the Charging Party
32 FLRA-ALJ; Case No. 9-CA-20445 September 8, 1983
DEFENSE LOGISTICS AGENCY, DEFENSE DEPOT TRACY, TRACY, CALIFORNIA,
Respondent, and LABORERS' INTERNATIONAL UNION OF NORTH AMERICAN, LOCAL
1276, AFL-CIO, Charging Party
Before: ELI NASH, JR., Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on January 21,
1983, by the Acting Regional Director for the Federal Labor Relations
Authority, San Francisco, California Region, a hearing was held before
the undersigned on April 19, 1983.
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It results from a charge
filed on September 7, 1982 and amended on January 10, 1983 by Laborers'
International Union, Local 1276, AFL-CIO (herein called the Union),
against Defense Logistics Agency, Defense Depot Tracy, Tracy, California
(herein called Respondent or the Depot).
The Complaint alleges that agents of Respondent by implied threats,
interfered with, restrained and coerced an employee in the exercise of
his rights protected by section 7102 of the Statute to assist any labor
organization by testifying at an arbitration hearing in violation of
section 7116(a)(1) of the Statute.
Respondent's Answer denies the commission of any unfair labor
practice.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observations of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Mr. R. Mikel Jackson is a GS-11 Industrial Hygienist employed at
Letterman Army Medical Center (herein called Letterman) which is located
at the Depot. Mr. Jackson's position at the Depot was created as part
of an Interservice Support Agreement between Letterman and the Depot in
which, inter alia, Letterman agreed to provide the Depot with industrial
medical support services. Letterman is considered by the Depot to be a
"tenant." The Interservice Support Agreement itself defines the basic
nature of Mr. Jackson's responsibilities as follows:
Perform industrial hygiene duties to include identification,
evaluation and recommendations pertaining to occupational
hazards/environments in support of DDTC Safety Health Program to
assure compliance with the applicable Department of the Army,
Defense Logistics Agency, Federal and State regulations.
Although Mr. Jackson is responsible for administering a comprehensive
industrial hygiene program on behalf of Letterman the program
responsibility rests with the Depot's Health and Safety Manager.
Indeed, in opposing Mr. Jackson's earlier request to upgrade his
position, the Depot specifically noted his lack of program and "stop
work" authority. While Mr. Jackson's position requires him to plan and
conduct evaluations of work operations involving potentially hazardous
environmental conditions, to perform surveys, to conduct formal and
informal inspections, and to collect data using standards sampling
techniques, he has no authority to implement any of his recommendations.
Further, Mr. Jackson provides professional advice to all Depot
activities on industrial hygiene problems, and, in coordination with the
Director, Health Services, Dr. LeBourdais, and the Depot Safety and
Health Manager, develops a program for physical screening of employees
exposed to toxic or physical health hazards.
The record disclosed that Mr. Jackson operates under the general
supervision of Dr. W. R. LeBourdais, Director of the U.S. Army Health
Clinic at the Depot. A review of the position description of this
position, reveals that, while Dr. LeBourdais is given considerable
latitude in accomplishment of the clinic mission, "major administrative
problems and major problems such as budget, MEDCASE, staffing, etc., are
reviewed by the Chief, Department of Ambulatory Care, LAMC." Thus, Dr.
LeBourdais is under the general supervision of the Chief, Department of
Ambulatory Care, LAMC.
While some of Mr. Jackson's assignments originate from Dr. LeBourdais
others are initiated on his own. Other requests are received from
operating officials at the Depot, including the Civilian Personnel
Office, to conduct surveys or evaluations. Pursuant to these requests
Mr. Jackson surveys the area indicated by examining it for health
hazards and preparing a report containing his evaluation of the
situation. If the area involved does not reveal exposure or potential
exposure to health hazards, he will so state in his report; if he finds
problems, his report will state what can be done to correct the hazards.
Additional responsibilities include Mr. Jackson maintaining a local
occupational hazard inventory of the health hazards on the installation.
Periodically he reviews this inventory to determine where problems
still exist and to ascertain whether his recommendations have been
adopted. If a recommended environmental control has not been adopted,
Mr. Jackson will prepare a follow-up report.
Mr. Jackson's reports are all reviewed by Dr. LeBourdais who must
concur before the report is submitted to the appropriate operating
official. Although Mr. Jackson's recommendations are frequently adopted
he does not implement any recommendations since this must be done by the
operating officials. The record disclosed several instances where Mr.
Jackson's recommendations were implemented. One such instance involved
Mr. Jackson's discovering exceptionally high carbon monoxide levels in
the warehouses and making certain recommendations regarding modification
of forklifts; these recommendations were implemented and the carbon
monoxide problem eliminated. On other occasions Mr. Jackson's
recommendations have not been adopted. One example, is the instant
case. Here Mr. Jackson studied the chlorine storage area, determined
that there were certain problems with the area and recommended certain
controls which, in his opinion, would make it a practically safe
operation. Mr. Jackson's recommendations were not implemented at the
time of the arbitration hearing involved in this matter.
Respondent presented testimony that Mr. Jackson attended "management"
meetings regularly. Other evidence, however, revealed that Mr. Jackson
attended such meetings merely as an assistant of Dr. LeBourdais and that
he had no policy making capacity in that role.
In October 1981, Mr. Jackson received the already mentioned
assignment regarding the chlorine storage area for the purpose of
determining whether or not it was a hazardous operation. After
screening the area, Mr. Jackson prepared a report indicating basically
the problems he found in the area. To make it a safe operation he
recommended certain steps be taken in order to eliminate the problems.
This report was forwarded to the operating official after review by Dr.
LeBourdais. The steps for correction initially recommended by Mr.
Jackson were not implemented.
Sometime later, in either February or March 1982, the matter became
the subject of a grievance regarding environmental pay differential.
Mr. Jackson attended a grievance meeting at the chlorine storage site,
during this period. At the meeting two employees and several directors
discussed the hazards of chlorine gas, what should be done to control
the gas, and how to go about detecting chlorine leaks was discussed.
Although Jackson participated in this grievance meeting he was dismissed
before its conclusion.
Several weeks later, Mr. Jackson was summoned to the Depot
Commander's Office concerning the chlorine storage area grievance which
was then at either step three or four in the grievance machinery.
During this meeting Mr. Jackson again presented his findings. According
to Mr. Jackson, he repeated what he had stated in his original
recommendation. Mr. Jackson also recalled that the Union Business
Representative, Butch Tolbert asked him about the health effects of
chlorine exposure. He was also asked whether his recommendation for the
chlorine storage area had been implemented. Mr. Jackson again was
dismissed before the meeting ended.
Sometime in August, Mr. Arnolfo, the Union's Chief Steward approached
Mr. Jackson to inform him that the Union was going to arbitration on the
chlorine storage area grievance, that the Union would like for him to
give testimony, "but they would let me know later if they were going to
use me as a witness or not."
Mr. Jackson testified that sometime, between August 25 and 27, 1982
he received a telephone call from the Depot Labor Relations Specialist,
Dean Boswell. Mr. Jackson states that Boswell told him "he wasn't sure
but he understood that the Union might be contacting me to appear as a
witness in an arbitration hearing and that I shouldn't appear." Jackson
added that Boswell stated, "if I did I might embarrass the army."
Boswell recalls attempting to call Mr. Jackson, but being unable to
reach him until August 31. Boswell denies making any of the above
statements, adding that it was immaterial to him whether Jackson
testified. According to Boswell, he called Mr. Jackson to inform him
that Letterman should be made aware that he was testifying in the
arbitration, but this was merely to make certain, pursuant to an
agreement with all tenants, that Letterman was aware of the attendance.
He also, testified that he talked with Mr. Jackson on a second occasion
and in response to a question told Mr. Jackson that the testimony was
voluntary and that the only time he had to testify was if subpoenaed.
Further, there is no indication that Boswell was directly involved in
the chlorine storage area problem prior to this call.
According to Mr. Jackson, he heard from Mr. Arnolfo of the Union
later that day. He told Mr. Arnolfo that he had no objections to being
a witness, but in light of what Mr. Boswell told him, he would like for
the Union to clear the matter with Letterman and his supervisor.
That same evening, Mr. Jackson allegedly spoke with his supervisor,
Dr. LeBourdais who informed Mr. Jackson that he had "talked with the
union and they requested you to appear in a hearing and I've given my
approval." Dr. LeBourdais added, "I've also gotten approval from
Letterman. In fact they said that was a part of your responsibilities
to reply (and) appear in these type of things." Shortly thereafter Mr.
Jackson, spoke with a Major Weiner and learned that the Union had
contacted him as well and that he had given his permission for Mr.
Jackson to appear.
On or about August 31, Mr. Jackson allegedly encountered Boswell on
the Depot grounds. Mr. Boswell again raised the subject of the
arbitration, asserting that the Depot did not want Mr. Jackson to appear
at the hearing, that the Depot objected to his appearing and that the
Depot did not want any testimony that was an embarrassment or a
detriment to be given . . . " A short time later, Mr. Boswell allegedly
entered the petroleum lab, where Mr. Jackson was taking his break and,
in the presence of several other employees, told Jackson again that he
did not have to appear at the arbitration unless he was subpoenaed, and
that "even . . . if you get a subpoena, make yourself scarce. If you're
not available, they can't question you." Boswell denies that such a
conversation occurred. Mr. Jackson's co-workers allegedly made comments
about Boswell's statement.
Having become quite concerned about the pressure he was receiving
from Boswell because of his agreement to appear at the arbitration
hearing, that same afternoon, Mr. Jackson discussed the matter with his
supervisor Dr. LeBourdais. As they were talking, Dr. LeBourdais
received a telephone call from John Nichol, Respondent's Assistant Labor
Relations Officer. Nichol allegedly told Dr. LeBourdais that Respondent
did not want Mr. Jackson to testify at the arbitration on Friday and
asked, as a favor, that Dr. LeBourdais give Mr. Jackson an assignment
"or get him off Depot, put him on administrative leave or whatever's
necessary to keep him out of the picture." Mr. Boswell testified that
Nichols made the call to Dr. LeBourdais on his instruction.
Nevertheless Boswell states that he overheard Nichols end of the
conversation and the conversation was centered around whether Letterman
was aware of Jackson's testifying and to make sure that Jackson was at
the hearing on time.
Dr. LeBourdais, apparently offended by Nichol's solicitation, contacted
the Depot Commander, told him that Jackson was being badgered by his
management people about his appearance at the hearing, and requested a
meeting for the following morning. The Commander agreed, requesting
that Mr. Jackson first take another look at the chlorine storage area
and brief him about the situation. The meeting took place the following
morning, during which Jackson informed the Commander of his findings and
what his testimony would be at the hearing.
The arbitration hearing was held on or about September 2, 1982. Mr.
Jackson testified at the hearing that his recommendations for the
chlorine storage area had not been implemented.
The Complaint issued on January 21, 1983, alleges that the Depot
violated section 7116(a)(1) of the Statute through Labor Relations
Officer Dean Boswell /1/ informing Mr. Jackson an "employee," that he
should not voluntarily testify at an arbitration hearing scheduled for
September 2, 1982 on behalf of the Union, that such testimony might be
an embarrassment to the army, that he should not appear unless
subpoenaed, that he could refuse to testify even if subpoenaed, and that
it would be best if Jackson was not available on the day of the
arbitration. The Complaint further alleges a violation of section
7116(a)(1) of the Statute, through conduct of the Depot Assistant Labor
Relations Officer John Nichol in contacting Mr. Jackson's supervisor,
Dr. LeBourdais and requesting that he not permit Mr. Jackson to testify
at the arbitration hearing unless he was subpoenaed. If the General
Counsel's sole witness in this matter is credited, it is doubtful that a
case would be made supporting the alleged violations of section
7116(a)(1) of the Statute. However, since the Depot's lone witness
denied each and every one of the unfair labor practices attributed to
the Depot by the General Counsel's witness the question resolves itself
into simple issues of credibility and burden of proof.
The primary question presented here is whether to accept and credit
the testimony of the General Counsel's witness, or to reject this
testimony and instead accept and credit the testimony of the Depot's
witness. Labor Relations Officer Dean Boswell favorably impressed me
with his appearance, testimony and demeanor as being honest, trustworthy
and frank. Further, his testimony contained no inherent
inconsistencies.
Accordingly, I accept and credit his testimony, and reject the testimony
of Mr. Jackson whose demeanor and testimony did not so favorably impress
me. In addition, it is noted that much of Mr. Jackson's testimony
involved statements to him made in the presence of others and could
easily have been corroborated by such witnesses as Dr. LeBourdais, the
co-employees with whom he was sharing his break in the petroleum
laboratory, Union Business Representative Tolbert and, even in one
instance, the Depot Commander. A review of the entire record,
therefore, does not persuade me of the credibility of the General
Counsel's witness by a preponderance of the evidence. Contrariwise, it
discloses that Mr. Jackson was not a volunteer testifying on behalf of
the Union in the instant arbitration hearing and he knew that he was not
a volunteer since he was informed by Dr. LeBourdais that his testimony
"was a part of (his) responsibilities to reply (and) to appear in these
types of things," that Mr. Jackson had already appeared in two steps of
the grievance procedure in this matter, without incident, that Mr.
Jackson had again appeared before the Depot Commander to present his
testimony involving the chlorine storage area, that Boswell had no
operative responsibility concerning the chlorine storage area, and
finally that Mr. Jackson did indeed appear and testify at the
arbitration hearing, again without incident. /2/ Accordingly, it is
found that the General Counsel has not maintained the burden of proof by
credible evidence so as to establish that the Depot violated section
7116(a)(1) as alleged in the Complaint.
Assuming arguendo that Mr. Jackson's testimony is entirely credited
there is, in my view, considerable doubt that a violation occurred in
this matter. The step from "sincere bemusement and genuine concern" as
the General Counsel states in brief, to restraint or coercion is a short
one. The problem of delineating what is restraint or coercion in a
situation such as the one involved herein would seemingly resist any set
rules or specific limitations. The General Counsel, relying on United
States Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, Chicago, Illinois, 3 FLRA 723 (1980); Federal Election
Commission, 6 FLRA 327 (1981); Department of the Navy, Portsmouth Naval
Shipyard, 7 FLRA 766 (1982), all cases involving individual employee
rights to file and participate in grievance proceedings on their own
behalf, argues that the right to participate in a negotiated grievance
procedure is protected by section 7102 /3/ and that the statements made
to Jackson by Boswell and to Dr. LeBourdais by Nichols constituted an
interference by the Depot in Jackson's right to participate in the
arbitration hearing.
The nub of the General Counsel's case is that Boswell's remarks by
implication would make Mr. Jackson "think twice" in the future before
voluntarily involving himself in similar protected activity i.e.
testifying at arbitration proceedings at the Depot. The problem with
this theory is that Mr. Jackson was not "voluntarily" involved. Careful
scrutiny of the facts in this matter reveal, as ready noted, that Mr.
Jackson's appearance "was a part of (his) responsibilities to reply
(and) to appear in these types of things," that Jackson, as part of
these responsibilities, had already appeared in at least two stages of
the grievance procedure involving the chlorine storage area without
repercussion, and had later even briefed the Depot Commander concerning
the testimony he would give during arbitration and, finally that Jackson
did appear and testify at the arbitration proceedings without incident.
Furthermore, I am not convinced, based on this record, that the
General Counsel has established by a preponderance of the evidence that
the remarks allegedly made by Boswell or Nichols constituted either
interference, restraint or coercion. If indeed, a test were constituted
in this matter, where there is no explicit threat in any of the remarks,
it would have to consider whether under all the circumstances, coercion
or interference is implicit in the alleged statements.
The circumstances herein did not reveal any threat, interrogation or
coercion, but rather, showed only that Boswell was pursuing whether or
not Mr. Jackson had clearance to testify at the arbitration proceeding.
Further, even if Boswell had implored Jackson not to attend the
arbitration session, such a request does not appear to interfere with
Mr. Jackson's rights under section 7102 since his duties as an
Industrial Hygienist require his appearance and testimony but would only
interfere with the Union's right to have his participation. The
Complaint, however, does not allege such a violation.
In view of the above, it is found and concluded that the Depot did
not violate section 7116(a)(1) of the Statute by interfering with,
restraining or coercing an employee to forego his right to participate
in an arbitration proceeding. Accordingly, it is recommended that the
entire Complaint in this matter be dismissed.
IT IS ORDERED, that the Complaint be, and it hereby is, dismissed.
/1/ The fact that Mr. Jackson was not an employee of the Depot, but
was employed by a "tenant" activity is irrelevant. Section 7103(a)(2)
of the Statute describes an employee as an individual "employed by an
agency." For purposes of this proceeding Mr. Jackson's status as an
employee within the meaning of that section has been clearly
established.
/2/ In light of the foregoing, it is unnecessary to decide the
management official status Mr. Jackson. Assuming that such a finding
were necessary, the record demonstrates that he is a professional in the
field of industrial hygiene who operates with autonomy in that area.
However, it further reveals that his level of authority falls far short
of establishing that he is a management official as contended by the
Depot. Mr. Jackson's limited authority and his inability to implement
recommendations, which is clearly revealed by the record, does not
evince an interest "of agency management as his or her primary concern
in a collective bargaining relationship." Department of the Navy,
Automatic Data Processing Selection Office, 7 FLRA 172 (1981). I would,
if required to do so, conclude and find that Mr. Jackson is not a
management official within the meaning of the Statute.
/3/ Section 7102. Employees' rights.
"Each employee shall have the right to form, join, or assist
any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal, and each employee
shall be protected in the exercise of such right. Except as
otherwise provided under this chapter, such right includes the
right--
"(1) to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities, and
"(2) to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees under this chapter."
Stefanie Arthur, Esq., for the General Counsel
Anthony R. Carr, Esq., for the Respondent
32 FLRA-ALJ; Case No. 79-CA-30216 September 12, 1983
U.S. CUSTOMS SERVICE, WASHINGTON, D.C. and U.S. CUSTOMS SERVICE,
PACIFIC REGION, LOS ANGELES, CALIFORNIA, Respondents, and NATIONAL
TREASURY EMPLOYEES UNION, Charging Party
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute", and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
On February 16, 1983, the Charging Party (also referred to herein as
the "Union") filed an unfair labor practice charge against Respondents.
The General Counsel of the Federal Labor Relations Authority
("Authority") investigated the charge and, on May 23, 1983 served upon
the parties the complaint initiating this proceeding.
The complaint alleges that Respondents violated section 7114(a)(2)(B)
of the Statute, in that they denied the Union the opportunity to be
fully represented during an examination of a bargaining-unit employee,
by restricting the union representative's ability to participate in the
examination. The complaint further alleges that this denial constitutes
an unfair labor practice, under Sections 7116(a)(1) and (8) of the
Statute. /1/
Respondents deny that they violated the Statute and raise three
affirmative defenses. The first is that there was no reason to believe
that the employee being interviewed would be the subject of any
discipline and, therefore, there was no right to have a union
representative present and the Union had no right to be represented at
the interview. The second is that the union representatives present at
the interview were given the opportunity to participate to the extent to
which they were entitled, and that any limitation placed on them was
warranted and necessary and within the right of Respondents' agent to
regulate the conduct of the interview.
The third is that the conduct of union representative Eric Lick exceeded
the bounds of protected activity.
A hearing was held on July 19, 1983 at which the parties appeared,
adduced evidence, and examined witnesses. On August 17, briefs were
submitted on behalf of the General Counsel and the Respondents.
Based upon the briefs, the record made in this proceeding, and my
observation of the demeanor of the witnesses, I make the following
findings of fact, conclusions of law, and recommended order.
1. It is admitted that Respondents are and have been agencies and
the Union a labor organization within the meaning of the Statute.
2. It is also admitted that the Union is the exclusive
representative of a bargaining unit, consisting, inter alia, of
professional and non-professional employees located in various regions
of Respondent, with exceptions not here relevant.
3. It is also admitted that, at all times material herein, Raymond
Hightower was employed as a Special Agent of the U.S. Customs Service,
in its Internal Affairs Regional Office in Seattle, Washington.
4. The Office of Internal Affairs is the internal investigative arm
of the U.S. Customs Service. It employs Special Agents, who investigate
allegations of misconduct, theft of Government property, and code of
conduct violations. Its agents also gather evidence which may be used
in disciplinary, civil and criminal actions against employees who are
involved in activities which are prohibited by statute or regulation.
5. On December 5, 1981, Customs Inspector John Vukelich, a
bargaining-unit employee, participated in a seizure of currency at
Seattle-Tacoma International Airport, as the discovering officer.
Inspector Vukelich asked an incoming passenger if her declaration was
complete, and if she was carrying more than $5,000. The passenger
responded that she was not carrying more than $5,000; but when
Inspector Vukelich inspected her handbag he found a larger sum of money.
Inspector Vukelich counted the money and made notes as to the total.
He then returned to the cargo area and left the money and the passenger
with other inspectors. When the money arrived at the offices of the
Customs Service in downtown Seattle, the money was recounted and was
found to be $1,000 short of the original count made at the airport.
Missing money is a "very serious" situation, under these circumstances
(TR 118).
6. Inspector Vukelich was advised of the shortage sometime in
December 1981 and, on December 17, 1981, wrote a memorandum to the Chief
Inspector regarding the passenger and the seizure. See GC 3.
7. Sometime after writing this memorandum, Inspector Vukelich was
contacted by Special Agent John Connelly and asked to take a lie
detector test concerning the conduct of the seizure. Inspector Vukelich
declined to take the test, on the ground that such tests were
"unreliable" (TR 86). He told Agent Connelly that he felt that he was
"innocent" (TR 86).
8. Subsequent to the first request and refusal to take a lie
detector test, Special Agent Raymond Hightower asked Inspector Vukelich
to take such a test, after explaining it to him. Inspector Vukelich
declined again.
9. At some time prior to the December 2, 1982, interview here at
issue, Special Agent John Connelly asked Inspector Vukelich to come to
an "Internal Affairs interview" (TR 76). Inspector Vukelich immediately
contacted his union representative. He could not recall who he
contacted; but it was otherwise established that he got hold of union
steward Eric Lick, who represented him at the interview. Inspector
Vukelich could not recall whether Agent Connelly told him that he was
not "being focused on as a suspect" (TR 84).
10. By December 1982, the case was "pretty well finished" (TR 99),
insofar as the Office of Internal Affairs was concerned; but it could
not be closed without an affidavit from Inspector Vukelich. At that
point, Inspector Vukelich was regarded as a "witness," not a "suspect,"
by the Office of Internal Affairs (TR 100).
11. Nine months after the first interview, Inspector Vukelich
received a call from Ken Passe, a supervisor who is now retired. Mr.
Passe informed him "that I was requested to be in Mr. Hightower's
(office) and that was it" (TR 79). Mr. Passe did not tell him why he
had to go to this second interview. Inspector Vukelich "assumed" it was
the "same reason" as the first, because he had "never heard one way or
the other if the case was closed or open" (TR 79).
12. After receiving Mr. Passe's phone call, Inspector Vukelich
called his union representative, who was on leave. He then called upon
two other union stewards to represent him, Eric Lick and Michael Milne.
They agreed.
13. Agent Hightower recalled Inspector Vukelich telephoning him to
set up an appointment for the interview and that he told Inspector
Vukelich, over the phone, that he was "not a suspect nor a subject but
was a witness in an investigation" (TR 102). Inspector Vukelich, after
some hesitancy, testified that he could not recall being told by Agent
Hightower that he was not a suspect. See TR 88-89. Generally,
Inspector Vukelich demonstrated a poor memory. The memory of Agent
Hightower appeared good; and he seemed to be an honest witness,
testifying with care and surety about the facts. Accordingly, I have
credited the testimony of Agent Hightower, throughout these findings,
and, in particular, his testimony as set forth in this finding.
14. Stewards Lick and Milne have represented employees at
investigatory interviews and undergone training on how to do this.
Inspector Vukelich is neither a steward nor a union officer, and has
received no such training.
15. After the initial introductions, things got "very unpleasant"
(TR 103). Steward Lick assumed a very aggressive role, at the outset of
the questioning. As soon as Agent Hightower uttered one word-- which
was "John," the first name of the employee being interviewed (TR 103),
Steward Lick assumed a confrontational attitude. For about 15 minutes,
Steward Lick and Agent Hightower discussed, in "raised" voices, the role
of the steward at the interview. During this "heated discussion" (TR
104) Steward Lick aggressively articulated the right of stewards to ask
questions and to take an active participatory role. Agent Hightower
stated that he had heard from Agent Connelly that Steward Lick "liked to
run these types of meetings" and warned him that he "would not be
allowed to run this particular meeting" (TR 21).
16. Agent Hightower then asked his supervisor, Homer Williams to
join them; and the discussion continued for several more minutes on the
role of the steward. Steward Lick "again, rather heatedly" took an
aggressive stance about representing employees in this type of situation
(TR 22). Agent Williams mentioned something about his impression being
that the stewards "were there for moral support" (TR 135). Agent
Williams also told Steward Lick that questions from the agent had to be
answered by the employee, not the steward, but that during the interview
the employee was free to consult with the steward with regard to any
questions being asked. Agent Williams then left the room.
17. Inspector Vukelich could not recall much of foregoing discussion
between Agent Hightower, Agent Williams and Steward Lick, because he was
"concentrating" on "trying to remember dates and names and times," so
that he could give a statement to Agent Hightower (TR 82).
18. The parties then proceeded to have a discussion of the "general
nature of the type of interview that was to be conducted" (TR 23).
Steward Lick asked Agent Hightower whether the employee was in a
Weingarten situation and whether a Kalkines or Miranda warning /3/ was
required, and whether possible criminal charges were to be brought.
Agent Hightower responded that he wanted "to keep these remarks on an
informal basis, but that because the union was making a big deal out of
it, then he would give an oath to Mr. Vukelich, who would answer
questions under oath" (TR 23). No Miranda or Kalkines warning was
given. Agent Hightower did advise Inspector Vukelich to the effect
that: "the first agent had neglected to get a final statement
pertaining to the case and that he (Agent Hightower) was supposed to get
the final statement" (TR 81); that "he (Inspector Vukelich) was not the
subject of an investigation; and that "there was no contemplated action
to be taken against (Inspector Vukelich)" (TR 53).
19. Questioning by Agent Hightower then followed. Included in the
questions were ones about whether Inspector Vukelich took any of the
money seized and if he knew who took the money. Inspector Vukelich
denied taking any money and stated that he did not suspect anyone else,
and was not convinced that any was missing. See GC 3.
20. During the questioning, Steward Lick repeatedly and aggressively
voiced his concern that the questions had been asked and answered, under
oath, at the first interview. These concerns were communicated by
asking Agent Hightower "to clarify the questions," and by making sure
that Inspector Vukelich did not make statements contradicting those
given before, by having him add to his answers that they were being
given: "To the best of my knowledge and belief this is true, not having
the documents available to review the question on the previous
statement." /4/ (TR 54).
21. About 15 minutes into the questioning, Agent Hightower again
"raised" his voice and "became irritated" (TR 26). He told Steward Lick
to "shut up" (TR 26) and stated that he:
was not going to allow any more questions from EriC AS A union
representative-- from the union representatives; that he-- if the
employee (sic) had any questions he could ask the questions
directly of the employee. If the union representatives had
anything to say they should address them through the employee, and
that Mr. Hightower would fail to recognize the presence of the
union representative.
See TR 26. The restriction was placed on both stewards, but was
primarily directed to Steward Lick.
22. Agent Hightower admitted that, at one point, he told Steward
Lick: "(I)f he didn't change his attitude or the argument, and stop it,
that I was going to throw him out of the room" (TR 107). Agent
Hightower further stated that he had no intention regarding Steward
Milne's continued presence; that he was "fine; he didn't do anything"
but "s(i)t in the back of the room and . . . listen . . . (with) very
little participation; (and) any participation he did (Agent Hightower)
regarded as positive . . . (TR 107).
23. After the restriction was placed on the stewards, the
questioning continued for about 15 or 20 minutes. When the stewards had
a question or a comment, they passed a note to Inspector Vukelich, such
as notes reminding him to add "this is to the best of my recollection,
based on the fact that this was a long time ago" (TR 27). Inspector
Vukelich would then add this statement to his answer. Steward Lick
continued to address Agent Hightower and ask for a clarification of a
particular question and tell Inspector Vukelich to add "this is to the
best of my recollection', and things like that" (TR 27). When Steward
Lick would then "interject himself" (TR 28), Agent Hightower would
either point his finger to Inspector Vukelich, indicating that Steward
Lick should ask the question through Inspector Vukelich, or would state
directly to Steward Lick: "'If the employee wants to have that question
asked then the employee will ask the question.'" (Tr 28). Inspector
Vukelich, most of the time, read the notes after he had responded
directly to the question. He was "uncomfortable" with this process and
seemed "puzzled sometimes," according to Steward Milne (TR 31).
However, Inspector Vukelich expressed no such discomfort or puzzlement,
in his testimony.
24. The direct line of questioning then ended, and Agent Hightower
asked Inspector Vukelich "if he would have any problem with giving a
written statement attesting to the facts that had been brought out in
the oral questioning" (TR 28). The stewards asked for and were granted
a recess, at this point.
25. The stewards and Inspector Vukelich left the room, went to the
room next door, and telephoned the General Counsel of the Union for
advice. They spoke to the General Counsel who was in San Francisco. He
advised the stewards and Inspector Vukelich, directly, that it was union
policy to advise against employees signing statements, in these types of
incidents.
26. Inspector Vukelich voiced his concern about this advice. He
felt that a written statement would "help his case" (TR 28) and "get
them to leave him alone and quit asking him to take lie detector tests"
(TR 29). Inspector Vukelich appeared to be an intelligent,
self-possessed person, capable of making this judgment on his own.
27. Inspector Vukelich and the stewards went back to the room where
Agent Hightower awaited; and Agent Hightower
developed a process whereby he would articulate a sentence and
he would ask Vukelich if that was an accurate reflection of what
Vukelich wanted said in the statement. And Vukelich would either
"Yes" or "No" and then they would talk about the wording.
See TR 29. During this process, the stewards began "speaking
directly again to Hightower, stating that (they) thought that this
should be added or this should be deleted, and Vukelich would agree or
disagree with (them)" (TR 29). All four worked on the written
statement.
28. After the statement was completed, Agent Hightower gave it to
Inspector Vukelich and the stewards to read. A recess was again called
by the stewards, and allowed. Again, the stewards contacted the Union's
General Counsel and read the statement to him. He suggested some
changes. Inspector Vukelich then told Agent Hightower of these changes;
and they were made. Inspector Vukelich then signed the statement.
29. Then Agent Hightower made the comment that "he didn't really
have to let Vukelich talk to the attorney in San Francisco, that it was
only out of professional courtesy . . . that he had allowed (the
stewards and Inspector Vukelich) to speak with the attorney in San
Francisco" (TR 30). At this point, the meeting ended.
30. Steward Milne, on cross-examination, conceded that his "style of
presentation might have been markedly different" from that of Steward
Lick (TR 37) and that Steward Lick took "a very aggressive stance" (TR
36). On redirect, Counsel for the General Counsel asked Steward Milne
whether Steward Lick "properly represented the employee" (TR 39).
Steward Milne's answer-- "I believe it was proper under the
circumstances" (TR 39)-- lacked a convincing ring.
31. Agent Hightower gave unrebutted testimony that Steward Lick was
"loud and argumentative" during his "interchange" with him (TR 106);
that he, Agent Hightower, explained that the steward "was there to give
counsel;" and if the stewards "wanted to discuss some of (his) questions
or the employee's answers, that they were free to consult . . . , but
that Mr. Lick was not going to ask questions, nor was he going to answer
the questions" (TR 106); and that they could consult in the room with
him or consult elsewhere. I fully credit this testimony. See finding
13, supra.
32. It was the disputatious and loud manner of Steward Lick's
representation that led to the limitation imposed by Agent Hightower.
33. No one has been disciplined in connection with the seizure of
the money that was the topic of the two investigatory interviews of
Inspector Vukelich. Apparently, the investigation has been "closed with
no action taken" (TR 113). Neither steward asked to make any submission
for the record, at the interview in issue.
34. The interview held by Agent Hightower took about an hour and 20
minutes.
This Authority "recognizes management's need, under certain
circumstances, to place reasonable limitations on the exclusive
representative's participation pursuant to section 7114(a)(2)(B) of the
Statute during an examination of an employee, in order to prevent an
adversary confrontation with that representative and to achieve the
objective of the examination." Norfolk Naval Shipyard, 9 FLRA No. 55, 9
FLRA 458 (1982) (hereinafter "Norfolk"). In Norfolk, the Authority
ruled that the "Respondent's conduct went beyond what was reasonably
necessary under the specific circumstances of th(at) case," in that the
employees being interviewed were "unnecessarily intimidated" by
management's agent conducting the interview (9 FLRA at 459).
Under the specific circumstances of this case, the conduct of
Respondent's agent was not unreasonable in the restrictions he placed on
the union representatives during the questioning portion of his
interview, for the following reasons.
A. The restriction was imposed because one union steward was
conducting himself in a loud and disputatious manner and turning the
interview into a confrontation.
B. The limitation placed on the questioning, while awkward in that
it required the stewards to ask questions through the employee, did not
unduly infringe upon the statutory right to union representation. The
stewards were allowed, freely, to consult with the employee. Indeed,
two recesses were allowed for the stewards and the employee to consult,
by telephone, with the General Counsel of the Union.
C. While the management agent conducting the interview did make some
intemperate and unwise remarks, they did not appear to intimidate the
stewards or the employee, or cause the employee to reject the advice of
the stewards, as in the Norfolk situation. Here, the employee appeared
to have been largely oblivious to the heated discussion between
Respondent's agents and one of the union stewards. See finding 17,
supra.
D. While the employee signed the statement against the advice of the
union attorney and the stewards, he did so only after management's agent
allowed him and the union stewards to leave this room, call the Union's
General Counsel, and consult with him. The employee signed the
statement because he felt it would "help his case" and "get them to
leave him alone and quit asking him to take lie detector tests" (finding
27, supra); and not because of intimidation resulting from being
"caught in the crossfire between (his) representative and that of (his)
employer . . . " (Norfolk, 9 FLRA at 473).
E. The other cases cited by the General Counsel are distinguishable.
See GCBr 18-20 and 22, citing U.S. Customs Service, Region VII, Los
Angeles, California, 5 FLRA No. 41 (1982) ("Customs") and Federal
Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA
No. 116, 6 FLRA 678 (1981) ("FAA"). In both cases, the Authority held
that the union steward was allowed unrestricted representation, during
the informal part of an interview, but was not allowed to interrupt the
later, taped portion of the interview. Before the taping portion began
and the limitation imposed, the steward "registered objections;"
"insisted" that he be permitted to speak; "commented occasionally, took
notes, assisted in clarifying some of the questions posed by
management;" "continued to protest the procedure adopted by management;"
"continued to insist that the (employee) was being denied
representation." See Customs findings 5, 7 and 8. There are no
findings, in Customs, as to style and manner used by the union
representative-- which is the problem with the representation here at
issue.
In FAA, the Authority affirmed the union "right to take an active
part in the defense of the employee," citing Customs. See 6 FLRA
678-679, fn. 2. In FAA, the union representative refused "an order to
be quiet" (6 FLRA at 686), which was given after the union
representative had repeatedly interrupted a so-called "counseling
session" with "requests" for a postponement and "suggest(ions)" and
"urg(ing)" that a further investigation be made. (6 FLRA at 683-684).
In FAA, the management's agent temporarily terminated the so-called
counseling session and held a meeting to give an oral reprimand to the
union representative for his refusal to obey the order and placed the
reprimand in the personnel file of the union representative. Again,
there are no findings, in FAA, as to the style and manner of the union
representative.
While the Statute assures to union representatives the right to
participate, actively, in defense of a bargaining-unit employee, it does
not require an agency to allow that representative to turn an interview
into a battleground, which is what happened here.
Accordingly, I conclude that the General Counsel has not proved, by a
preponderance of the evidence /5/ that management's agent "denied the
Union the opportunity to be fully represented during the examination of
a bargaining unit employee . . . by restricting the Union
representative's ability to participate in the examination and thereby
effectively denying the employee representation," as alleged in count 10
of the complaint. See GC 1(b).
In view of this conclusion, it is unnecessary to reach and resolve
other issues raised by the parties.
The General Counsel has not proved by the preponderance of the
evidence, the allegations of unfair labor practices made in the
complaint.
Accordingly, and pursuant to 5 CFR 2423.29, and 5 U.S.C. 7118, the
complaint in this proceeding shall be, and it hereby is DISMISSED.
/1/ The pertinent statutory provisions are as follows:
5 U.S.C. 7116 provides, in pertinent part, that:
(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; . . .
or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
5 U.S.C. 7114(a) provides, in pertinent part, that:
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at- . . .
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.
/2/ The following abbreviations will be used. "TR" refers to the
transcript in this proceeding. Corrections to it have been made
pursuant to 5 CFR 2423.19(r) and the unopposed motion of the General
Counsel, except as to item 7, a request to transpose pages which are
correctly aligned in the transcript of record. See Appendix A hereto.
Other abbreviations to be used are as follows. "GC" refers to the
exhibits of the General Counsel. "R" refers to the exhibit of
Respondents. Multipage exhibits will be referenced by the exhibit
number followed by the page or paragraph number. "GCBr" refers to the
brief submitted by the General Counsel. "RBr" refers to the brief
submitted by Respondent.
Respondents will be referred to jointly as "Respondent," unless
otherwise specifically noted.
/3/ See Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973),
holding that a Federal employee can be removed for not replying to a
question "if he is adequately informed both that he is subject to
discharge for not answering and that his replies (and their fruits)
cannot be employed against him in a criminal case." Id. at 1383.
And see Miranda v. Arizona, 384 U.S. 436 (1966), holding that, in
criminal cases, statements made can be used against a person taken into
custody or otherwise deprived of his freedom of action, in any
significant way, only if: "Prior to any questioning, the person (has
been) warned that he has a right to remain silent, that any statement
that he does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed." Id.
at 444.
/4/ No sworn, written statement was given at the first interview.
There may have been notes taken by Agent Connelly. Agent Hightower
showed Inspector Vukelich "the seizure report, his memorandum to the
chief inspector that was written shortly after the incident, and any
other documents that were pertaining to the seizure" (TR 109).
/5/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
Patricia K. Olson, Counsel for Respondents
Lucinda Bendat, Counsel for Charging Party
Barrie Shapiro and Joseph Swerdzewski, Counsel for the General
Counsel, Federal Labor Relations Authority
32 FLRA-ALJ; Case No. 3-CA-20760 September 16, 1983
DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, Respondent, and
NATIONAL TREASURY EMPLOYEES UNION, Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
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, Fed.
Reg., Vol. 45, January 16, 1980 and Vol. 46, No. 154, August 11, 1981, 5
C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to a charge filed on September 7, 1982, by the National
Treasury Employees Union, (hereinafter called the NTEU or Union), a
Complaint and Notice of Hearing was issued on May 31, 1983, by the
Regional Director for Region III, Federal Labor Relations Authority,
Washington, D.C. The Complaint alleges that the Department of Treasury,
U.S. Customs Service, (hereinafter called the Respondent or Customs
Service), violated Sections 7116(a)(1) and (8) of the Federal Service
Labor-Management Relations Statute, (hereinafter called the Statute), by
virtue of its actions in failing and refusing to honor the Union's
request for certain information necessary for the processing of two
pending grievances.
A hearing was held in the captioned matter on July 13, 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 August 29, 1983, which have
been duly considered.
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.
The Union is the exclusive representative for a worldwide
consolidated unit of Respondent's employees. The Respondent and the
Union are parties to a collective bargaining agreement which became
effective in June 1980. In addition to a grievance procedure which
terminates in arbitration, the collective bargaining agreement provides
in Article XXVIII, Section 5, Employee Conduct and Discipline, that "In
taking disciplinary actions, the employer shall give due regard to the
principle that like penalties should be imposed for like offenses, but
it is understood as well that equality of treatment does not require
uniformity of penalties."
In 1980 the Respondent issued Manual Supplement No. 51711-03,
entitled Table of Offenses and Discipline which set forth some 41
offenses and suggested penalties therefor. The Table which is used as a
guide by the supervisors in imposing discipline for the listed offenses
also sets forth minimum and maximum penalties to be accorded by the
supervisors for the respective offenses. Prior to 1980 no such guide
was in effect.
On a date unspecified in the record Mr. Joseph Birnbaum, a senior
inspector stationed in Respondent's Jacksonville, Florida, facility, was
charged with conduct prejudicial to the agency and suspended for a
period of forty days.
On a date, also unspecified in the record, Mr. Ken Beaton, a GS-9
journeyman inspector assigned to the Port of Atlanta, Georgia, was
charged with falsification of an official government document and
suspended for fourteen days.
The record reveals that the Jacksonville, Florida, facility falls
within the jurisdiction of Respondent's District Office in Tampa,
Florida. The Port of Atlanta falls within the jurisdiction of
Respondent's Atlanta, Georgia, District Office. Both District Offices
are under the supervision of the Miami, Florida, Regional Office, which
is under the direction of Commissioner Robert Battard.
In the early part of 1982, Mr. Beaton and Mr. Birnbaum filed
grievances over their respective suspensions. Subsequently, when the
Union was unable to achieve a satisfactory resolution of the grievances,
the Union invoked arbitration in accordance with the procedures set
forth in the collective bargaining agreement.
According to Mr. Lawrence Poole, Assistant Counsel to the NTEU, who
had been representing Mr. Birnbaum and Mr. Beaton in their respective
grievance, in addition to contesting the merits of the charges against
Mr. Birnbaum and Mr. Beaton, the Union was also concerned whether the
discipline accorded them met the requirements of Article XXVIII of the
contract which called for like penalties for like offenses. Being aware
that the only way he could reach a conclusion with respect to this
latter concern would be by a comparison of other disciplinary actions
taken in identical or similar situations by other supervisors within the
Customs Service, Mr. Poole and Local NTEU president Carolyn Baxley sent
letters dated April 7th, in the case of Mr. Beaton's grievance and April
16, 1982, in the case of Mr. Birnbaum's grievance, to Regional
Commissioner Robert Battard requesting information on other similar
disciplinary actions.
The April 16th letter written on behalf of Mr. Birnbaum by Mr. Poole,
/1/ read as follows:
This is a request for information filed by the exclusive
representative pursuant to Title VII of the Civil Service Reform
Act. The following information is necessary and relevant for the
NTEU to fulfill its statutory duties as the representative of Mr.
Birnbaum in the arbitration hearing regarding his fourteen (14)
calendar day suspension. Specifically, NTEU is requesting the
following information.
1. The entire files, including but not limited to the Notice
of Proposal letter, the decision letter, the written reply, the
transcript of the oral reply, the settlement documents, if any,
any arbitration decision, and any decision by a federal tribunal
for all employees in the U.S. Customs Service charged with or
discipline for falsification of official records.
2. Any other evidence regarding the basis for the discipline
meted out to Mr. Birnbaum.
By letters dated April 15 and April 28, 1982, Regional Commissioner
Robert Battard responded to the April 7 and 16th information request
letters from the Union. In the aforementioned letters, Mr. Battard
informed the Union that the Respondent was unable to provide the
requested information since "The Miami Region does not maintain a system
of records regarding all employees in the U.S. Customs Service charged
with or disciplined for "conduct prejudicial to the agency or
falsification of official government documents.
In view of the above responses from the Regional Commissioner, the
Union, by separate letters dated May 18, 1982, requested the
Commissioner, U.S. Customs Service, Washington, D.C. to supply the
identical material described in its earlier requests of April 7 and 16,
1982 to Regional Commissioner Battard. /2/ By letter dated June 29,
1982, from Respondent's Acting Director of Labor Relations, Michael
Dana, Respondent denied the Union's May 18, 1982 request stating that
"this office does not maintain such records or documents."
The record evidence establishes that the National Office of the
Respondent does not maintain a file of the disciplinary actions
occurring within its seven Regions. Each Region, however, does maintain
such files. In the case of the Miami, Florida, Region, Mr. Allan
Pedrazas, Chief of the Employee and Labor Relations Branch of the
Personnel Division of the Miami Region, testified that his Region
maintains disciplinary files which are broken down by District.
Additionally, the Miami Region maintains a log of all disciplinary
actions. Further, according to Mr. Pedrazas, over the past three years
there were some 100-110 adverse actions. Of the 100-110 adverse actions
there were only about four cases which have a relationship to the Beaton
and Birnbaum disciplinary proceedings.
With respect to the reasons for requesting the information, Mr. Poole
testified, among other things, that he needed the information for
purposes of verifying that Respondent was giving like penalties for like
offenses and to decide whether he should proceed to arbitration.
Additionally, according to the uncontested testimony of Mr. Poole, he
requested copies of all MSPB decisions because without case names, etc.,
it is impossible to research the unbound volumes of MSPB decisions to
determine if any similar disciplinary cases involving Respondent had
been decided by such Authority.
The record further indicates that Mr. Birnbaum opted to proceed to
arbitration without the requested material and Mr. Beaton declined to
proceed to arbitration without first having the opportunity to study the
requested material. Accordingly, the Union stayed the arbitration
proceeding with respect to Mr. Beaton pending resolution of the instant
complaint.
The General Counsel takes the position that the requested information
is necessary and relevant to the resolution of the pending grievances
and Respondent's refusal to make same available was contrary to Section
7114(b) of the Statute which directs agencies to make such information
available. Having failed to abide by Section 7114(b), it is the further
position of the General Counsel that Respondent's action in this respect
violated Section 7116(a)(1) and (8) of the Statute. Additionally, the
General Counsel takes the position that the Union was under no
obligation to direct its requests for information to each and every
installation where the disciplinary files were maintained.
Respondent, on the other hand, takes the position that the
information requested was not necessary for intelligent bargaining, the
burdensome nature of the request outweighs its relevancy, the request
was contrary to past practice of requesting information only on a
Region-wide basis, and that in any event the Union was under a legal
obligation to comply with the provisions of the Privacy Act (5 U.S.C.
552(a)) and submit its request for information to the respective offices
where the disciplinary records were maintained. /3/
In view of the above stated positions of the parties it is obvious
that basic to the resolution of the instant controversy is a
determination with respect to the necessity of the requested information
for intelligently processing the pending grievances of Mr. Beaton and
Mr. Birnbaum. In this connection the Authority has already concluded,
and I find, that information bearing on similar situated employees is an
important factor in determining the validity of a grievance predicated
on disparate treatment and accordingly falls within the definition of
"data . . . necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining" set
forth in Section 7114(b)(4) of the Statute.
Internal Revenue Service, Jacksonville District, Jacksonville, Florida,
1 FLRA 265; Veterans Administration Regional Office, Denver, Colorado,
7 FLRA No. 100; Internal Revenue Service, Western Region, San
Francisco, California, 9 FLRA No. 57; U.S. Customs Service, Region VII,
Los Angeles, California, 10 FLRA No. 46.
I further find, based primarily upon the testimony of Mr. Pedrazas
and Mr. Spayed of the Miami Region and Headquarters Office,
respectively, that the requested disciplinary files are regularly
maintained in all Regional Offices and that the disciplinary materials
therein are reasonably available for dissemination.
Having concluded above that the requested information falls within
the purview of Section 7116(b)(4) of the Statute, it must now be
determined whether, under all the circumstances present herein,
Respondent's refusal to make the information available was violative of
Sections 7116(a)(1) and (8) of the Statute.
As noted above, Respondent defends its action on three grounds, i.e.,
burdensome nature of the request, Union's failure to comply with the
Privacy Act and submit its request to the specific offices housing the
requested files, and the Union's failure to follow the past practice of
requesting information only on a Region-wide basis.
Contrary to the contention of the Respondent, I find no provision in
the Statute which imposes upon the Union the responsibility of making
its request for information necessary for intelligent bargaining to the
specific office where the information is normally maintained. While it
is true, as pointed out by Respondent, that the Privacy Act does require
an agency to publish the location of all documents and the custodian of
same for purposes of aiding the public in its search for information,
such fact does not impose a correlative duty on a union which is the
exclusive representative of the agency's employees to seek information
solely through such locations and/or respective custodians. Inasmuch as
the Union's right to the information flows from the Statute and not the
Privacy Act it is under no duty to adhere to the procedures set forth in
the Privacy Act for obtaining desired information. Cf. Bureau of
Alcohol, Tobacco and Firearms, National Office and Western Region, San
Francisco, California, 8 FLRA No. 108; Local 2047, AFGE v. Defense
General Supply Center, 423 F.Supp. 481 (1976).
With respect to the Respondent's second defense, i.e., that in the
prosecution of past grievances the Union only requested information on a
Region-wide basis, sufficient to say that a party to a legal proceeding
is not bound by strategies, successful or otherwise, utilized in past
endeavors.
With regard to the Respondent's remaining defense, i.e., the
burdensome nature of the request, I find that the limited evidence in
the record does not support this defense. Thus, the only evidence in
the record concerning the requested information appears in the testimony
of Mr. Pedrazas and concerns only the operations of the Miami Region.
Other than stating that the Miami Region had some 100 disciplinary files
divided by Districts and that such files were listed on an independent
log, no evidence whatsoever appears in the record concerning the
difficulties, if any, entailed in culling out from such files the
disciplinary cases which had some relationship to the Beaton and
Birnbaum grievances. This limited amount of evidence falls short of
establishing that presentation of the requested information would be
unduly burdensome on Respondent.
Moreover, and in any event, I further find that Respondent by failing
to timely raise the alleged burdensome nature of the request waived any
such defense. Where an employer has legitimate good faith objections
predicated on grounds of burdensomeness, unwieldiness of the form in
which the information is requested, expense, or other considerations, it
is duty bound to raise such objections at the time the information is
requested in order to allow the Union the opportunity to discuss how the
necessary data may be supplied in a less burdensome form or less costly
manner. Cf. J.I. Case Co. v. NLRB, 253 F.2d 149, 41 LRRM 2679; 438th
Air Base Group, McGuire AFB, 2-CA-609, January 15, 1982, Administrative
Law Judge Decision Report No. 4, January 22, 1982. Inasmuch as
Respondent failed to raise the burdensome nature of the request until
the filing of its post-hearing brief, I find that in such circumstances
Respondent is now precluded from relying on such defense.
Having concluded that the requested information falls within the
scope of Section 7114(b) of the Statute and that Respondent's defenses
are without merit, I further conclude that Respondent violated Sections
7116(a)(1) and (8) of the Statute when it failed to supply the requested
information.
Accordingly, I recommend that the Authority issue the following
Order:
Pursuant to Section 7118 of the Statute and Section 2423.29 of the
Federal Labor Relations Authority's Rules and Regulations, it is hereby
ordered that the Department of Treasury, U.S. Customs Service shall:
1. Cease and desist from:
(a) Refusing or failing to furnish, upon request by the
National Treasury Employees Union, or any other exclusive
representative of its employees, the entire files, including all
appellate decisions thereon, involving all employees of the U.S.
Customs Service charged with, or accorded discipline for,
falsification of official government documents, or conduct
prejudicial to the agency within the past five years, which
information is necessary to enable the National Treasury Employees
Union, or any other exclusive representative, to discharge its
obligation as the exclusive representative to represent the
interests of all its employees in the exclusively recognized unit.
(b) 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) Upon request, make available to the National Treasury
Employees Union, or any other exclusive representative of its
employees, the entire files, including all appellate decisions
thereon, involving all employees of the U.S. Customs Service
charged with, or accorded discipline for, falsification of
official government documents within the past five years, which
information is necessary to enable to the National Treasury
Employees Union, or any other exclusive representative, to
represent the interests of all its employees in the exclusively
recognized unit. /4/
(b) Post at its facilities throughout the Miami, Florida,
Region, 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 Commissioner of Customs, and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted.
The Commissioner 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. 2423.30 notify the Regional Director,
Region III, Federal Labor Relations Authority, Washington, D.C.,
in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
/1/ Although not included in the record, the parties stipulated that
the letter written by Ms. Baxley on behalf of Mr. Beaton was
substantially the same as Mr. Poole's and requested the same
information.
/2/ The requests to the Commissioner, U.S. Customs Service, limited
the requested information to the past five years.
/3/ All the foregoing defenses were raised by the Respondent for the
first time in its post-hearing brief. Prior thereto, Respondent merely
denied the information on the ground that all the requested information
was not in the offices where the requests were directed.
/4/ Inasmuch as Mr. Birnbaum's grievance has already proceeded to
arbitration there does not appear to be any current need for information
bearing on his grievance. Accordingly, I deem it unnecessary to order
Respondent to produce such material.
Allan L. Martin, Esquire, for the Respondent
D. Randall Frye, Esquire, for the General Counsel
Mr. John McEleney, for the Charging Party
WE WILL NOT refuse or fail to furnish, upon request by the National
Treasury Employees Union, or any other exclusive representative of our
employees, the entire files, including all appellate decisions thereon,
involving all employees of the U.S. Customs Service charged with, or
accorded discipline for, falsification of official government documents,
or conduct prejudicial to the agency within the past five years, which
information is necessary to enable the National Treasury Employees
Union, or any other exclusive representative, to discharge its
obligation as the exclusive representative to represent the interests of
all employees in the exclusively recognized unit.
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 upon request, make available to the National Treasury
Employees Union, or any other exclusive representative of our employees,
the entire files, including all appellate decisions thereon, involving
all employees of the U.S. Customs Service charged with, or accorded
discipline for, falsification of official government documents within
the past five years, which information is necessary to enable the
National Treasury Employees Union, or any other exclusive
representative, to discharge its obligations as the exclusive
representative to represent the interests of all employees in the
exclusively recognized unit.
. . . (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 of 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, NW., Suite 700, P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8507.
32 FLRA-ALJ; Case Nos. 2-CA-30028 2-CA-30048 2-CA-30074 September
16, 1983
SOCIAL SECURITY ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION
FIELD OPERATIONS, REGION II, Respondent, and AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO; AFGE NEW YORK - NEW JERSEY COUNCIL AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2369, Charging
Party/Union, and SOCIAL SECURITY ADMINISTRATION, AND SOCIAL SECURITY
ADMINISTRATION FIELD OPERATIONS, REGION II, Respondent, and AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; AFGE NEW YORK-NEW JERSEY
COUNCIL AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2369,
Charging Party/Union
Before: ELI NASH, JR., Administrative Law Judge
This is a consolidated 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., 92 Stat. 1191 Public Law 95-454,
(hereinafter referred to as the Statute) and the Rules and Regulations
of the Federal Labor Relations Authority (FLRA), 5 C.F.R.XIV 2410 et
seq.
Pursuant to charges filed on October 19, 1982, November 2, 1982 and
November 12, 1982, respectively, and all first amended on January 26,
1983 by the American Federation of Government Employees, AFL-CIO; AFGE
New York-New Jersey Council and American Federation of Government
Employees, Local 2369 (hereinafter referred to as the Charging Party
and/or Union) against the Social Security Administration and Social
Security Administration Field Operations, Region II (hereinafter
referred to as Respondent and/or Respondents) the Regional Director of
Region 2 issued a Consolidated Complaint and Notice of Hearing dated
March 16, 1983 alleging that the Respondents violated section
7116(a)(1), (5) and (8) of the Statute.
The Consolidated Complaint alleges that several different agents of
Respondent conducted orientation sessions to discuss various general
conditions of employment, that these sessions constituted formal
discussions within the meaning of section 7114(a)(2)(A) of the Statute,
without affording the exclusive representative proper notice or the
opportunity to be represented at the above sessions in its institutional
capacity.
Respondents' Answer denied the commission of any unfair labor
practices.
The undisputed facts, as stipulated by the parties, are as follows:
The Union, has at all times material herein, been the exclusive
representative of a consolidated nationwide unit of Respondent's
employees, including all employees employed in the District and Branch
offices of Respondent in the states of New Jersey and New York.
A. Case No. 2-CA-30028
On October 8, 1982, Patricia Coverdale, a new unit employee at
Respondent's Bricktown, New Jersey Branch Office, reported to the office
of the Branch Manager, Harry Martin for a pre-arranged orientation
session. This session was conducted by Martin, with only Coverdale and
himself in attendance. Coverdale's attendance was mandatory. Martin is
the highest ranking management official in the Branch Office. The
session lasted approximately thirty (30) minutes during which Martin
discussed various subjects with Coverdale. Among the subjects discussed
were: lateness policy, time and length of break and lunch period, the
chain of command in the office and the interrelationship between various
types of employees, union representation, promotional opportunities, the
performance evaluation system, accumulation of sick and annual leave
usage policy, the organizational relationship between the District
Office and Branch Office, overtime policy, job duties of Coverdale's
position, payroll and within-grade policy, weather emergency procedures
and life insurance benefits. This discussion's format comported with
Respondent's policy concerning orientation sessions. During the
orientation session, Coverdale asked questions concerning the above
subjects. Martin did not take notes or transcribe Coverdale's questions
or comments.
The parties agree that the Union did not receive prior notice of this
meeting in its institutional capacity. Furthermore, it is agreed that
on October 8, 1982, the Union's Local Representative at the Bricktown
Branch Office, Larry Uniglicht, requested official time to attend the
orientation session for Coverdale. His request, submitted on an SSA 75
Official Time Form to his supervisor, Maureen Robinson, was denied.
B. Case No. 2-CA-30048
On October 19, 1982, Frank Linardo, the District Manager of
Respondent's Bridgeton, New Jersey District Office announced at an
office staff meeting that a new Claims Development Clerk would report
for duty on October 20, 1982. The parties agree that this Claims
Development Clerk was Patricia Leach. Attending this meeting was Joseph
Delasantro, the Union's Assistant Local Representative at the Bridgeton
District Office. After the meeting, Delasantro orally requested that
District Manager Linardo allow his attendance at the Leach orientation
session in his official capacity. The request was denied.
The following day, October 20, 1982, the new unit employee, Patricia
Leach, reported to the Bridgeton District Office for her scheduled
orientation session. Leach's attendance was mandatory at this session.
This orientation session was conducted by District Manager, Frank
Linardo, and by Assistant District Manager, Robert Rougeau. Linardo and
Rougeau are the highest ranking management officials in that District
Office. The entire orientation session lasted approximately ninety (90)
minutes. The format of the orientation was as set forth in Respondent's
Orientation Checklist. The parties agree that the Orientation Check
List was used during Leach's orientation session and that all the items
on this list were discussed.
First, Leach was shown a videotape on the organization of the
District Office. Linardo then discussed the Office Emergency
Contingency Plan, union representation and the employee's job duties.
Only Linardo and Leach were in the office during this period. Leach was
then taken to the office of Assistant District Manager, Robert Rougeau.
Only Rougeau and Leach were present. Rougeau proceeded to conduct the
remainder of Leach's orientation session. During that part of the
session, Rougeau discussed the following subjects with Leach: the time
and duration of breaks and lunch, leave usage policy, parking, overtime
policy, the performance evaluation system and office security. Rougeau
also gave Leach the training schedule for her position, various
pamphlets, forms for health insurance and a seating chart. At both
sessions Leach was allowed to ask questions. The parties agree that the
Union was not given prior notice of this meeting in its institutional
capacity and was not afforded an opportunity to attend.
C. Case No. 2-CA-30074
On or about the week of October 25, 1982, John Heyman, the Union's
representative at Respondent's Plainfield, New Jersey Branch Office,
learned from Joseph Kenney, Branch Manager, that Frances Ruiz, a new
employee, would report for duty on November 1, 1982.
Shortly thereafter, on October 29, 1982, Heyman requested official
time to attend the orientation session held for Ruiz by Respondent's
supervisor, Thomas Higgins, by use of an SSA 75 Official Time Form. On
the same day, Higgins denied Heyman's request for official time.
Frances Ruiz, who was to occupy the position of, a Claims Development
Clerk in the Plainfield Branch Office, reported to a pre-scheduled new
employee orientation session on November 1, 1982. Present at this
meeting were Ruiz and Thomas Higgins, the operations supervisor in the
office. The session was conducted by Higgins in the Branch Manager's
office and lasted approximately twenty (20) minutes. Ruiz's attendance
at this session was mandatory. The format of the meeting was as set
forth in Respondent's Standard Supervisor Checklist for Orientation of
New Employees. The parties also agreed that all items on this checklist
were discussed with Ruiz at the November 1, 1982 orientation session.
The subjects discussed included: the significance of the employee's
employment status (part-time employee), her probationary period,
promotional opportunities, time and duration of the office's breaks and
lunch periods, the position description for her position, sick and
annual leave policy, lateness policy and information regarding the
Union. In addition, Higgins also conducted a security orientation of
Ruiz as evidenced by Higgins' signature on an Employee Security
Orientation Form. Additionally Higgins gave Ruiz various pamphlets,
health insurance benefit forms, life insurance forms and a W-4 Federal
Income Tax Withholding Form, and instructed the employee to fill out the
forms. After Ruiz filled out these forms she was dismissed and the
orientation session was ended. The parties agreed that the Union did
not receive prior notice of this meeting in its institutional capacity
and was not afforded an opportunity to attend.
At all times material herein, the Respondent has continuously taken
the position that the above described meetings are not formal
discussions within the meaning of section 7114(a)(2)(A) of the Statute.
Whether Respondent's one-on-one orientation sessions for new
employees are formal discussions within the meaning of section
7114(a)(2)(A) of the Statute.
Whether Respondent's failure to give the Charging Party appropriate
notice of or an opportunity to be represented at these meetings in its
capacity as exclusive representative violated sections 7116(a)(1), (5)
and (8) of the Statute as alleged.
The Authority has held that orientation sessions are formal
discussions within the meaning of section 7114(a)(2)(A) of the Statute
and that a union is entitled to be represented at such sessions insofar
as they involve any member of its bargaining unit. Department of
Health, Education and Welfare, Region IV, Atlanta, Georgia and
Department of Health and Human Services, Region IV, Atlanta, Georgia, 5
FLRA No. 58 (1981).
The Region IV case, supra also established definitive criteria for
determination of whether orientation sessions constituted formal
discussions within the meaning of section 7114(a)(2)(A). These are:
required mandatory attendance of new employees, the subject matter
discussed (personnel policies) and the established agenda for such
meetings. Under the Region IV case, supra, it appears that the parties
could during collective bargaining waive the right to be present during
these orientation sessions.
In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, 10 FLRA 115
(1982). The Authority again reviewed the question of formal
discussions. There the Authority created several factors it would
examine in determining whether individual meetings were "formal"
discussions within the meaning of section 7114(a)(2)(A). /1/
The above cited cases, although dealing with section 7114(a)(2)(A) of
the Statute may be distinguished as involving entirely different types
of meetings. On the one hand, the meetings in the San Francisco case,
supra concerned individual discussions with employees about assignment
and distribution of work, while the Region IV case, supra, involved
orientation sessions for new employees. The criteria for determining
whether the meetings are formal is similar, but not the same. The
different application of the orientation session criteria is directly on
point and, it is my view, that such criteria should be followed in this
matter.
Inasmuch as the General Counsel has established that all of the
meetings herein required mandatory attendance, involved an established
agenda and the subject matter involved concerned personnel policies,
practices and general conditions of employment, the General Counsel has
met its burden of proving that the meetings held on October 8, 20 and
November 1, 1982, respectively were "formal" discussions within the
meaning of the Statute.
Furthermore, the stipulated facts demonstrated that the Union, on each
occasion, was denied representation in its institutional or
organizational capacity to attend these meetings. Respondent's argument
that the San Francisco case, supra, is controlling, therefore, is
rejected.
Respondent's brief makes a cogent argument that the financial
obligation imposed on it by a requirement that union participation in
all one-on-one new employee interviews is burdensome to the extent that
it interferes with the efficiency of agency operations. However, this
argument is not supported by facts submitted in the stipulation.
Assuming, as Respondent argues, that with its more than 1400 field
offices averaging up to 60 employees each, a requirement that it allow
union participation in each one-on-one orientation interview could
indeed disrupt its operations and the loss of time from its mission
would be unacceptable. /2/ This would then be a case in which an
exception to the Region IV case, supra, might well be created. Unlike
this matter, the orientation sessions there were held on a monthly basis
and 15 to 18 employees attended and were instructed or advised regarding
personnel policies by personnel specialists. /3/ However, Respondent
has shown no reason why the one-on-one meetings are necessarily
essential or that it could not conduct such orientation meetings on a
monthly basis thereby eliminating substantial costs, as in Region IV, or
that its operations in New Jersey and New York would not lend itself to
such scheduling, or for that matter, any scheduling other than
one-on-one. If the only method by which Respondent could effect such
orientation session in Region II is through one-on-one meetings, I would
agree with Respondent that it is indeed burdensome, disruptive and
ineffective to have union representation at each and every such meeting
and would not be reluctant to recommend such an exception as requested.
Absent record evidence to support such an exception, as an
Administrative Law Judge, I am bound to follow already established
agency policy and precedent. Such policy and precedent, until altered
by the Authority, is that orientation sessions where attendance is
mandatory, which follow an established agenda for discussion and where
the subject matter concerns personnel policies and other general
conditions of employment are "formal" discussions within the meaning of
section 7114(a)(2)(A) and the exclusive representative in its
organizational capacity is entitled to be notified and to, therefore,
attend such sessions insofar as they involve any member of its
bargaining unit.
Accordingly, it is found and concluded that Respondents' failure to
give appropriate notice or an opportunity for the exclusive
representative to be represented at such orientation sessions and
represent its members interests in such formal discussions thereby
violated section 7116(a)(1), (5) and (8) of the Statute.
Having found and concluded that the Respondents herein violated
section 7116(a)(1), (5) and (8) of the Statute, it is recommended that
the Authority issue the following:
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 Social Security Administration and Social
Security Administration Field Operations, Region II shall:
1. Cease and desist from:
(a) Refusing to give the American Federation of Government
Employees, AFL-CIO; AFGE New York-New Jersey Council and American
Federation of Government Employees, Local 2369, the opportunity to
be represented at orientation sessions for new employees conducted
by representatives of its Bricktown, New Jersey, Bridgeton, New
Jersey and Plainfield, New Jersey offices respectively which are
attended by members of the bargaining unit represented by the
American Federation of Government Employees, AFL-CIO; AFGE New
York-New Jersey Council and American Federation of Government
Employees, Local 2369, and where personnel policies and practices
and other general conditions of employment are discussed.
(b) In any like or related manner, failing or refusing to
comply with any provision of the Federal Service Labor-Management
Relations Statute.
(c) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise of any right
under the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Give the American Federation of Government Employees,
AFL-CIO; AFGE New York-New Jersey Council and American Federation
Of Government Employees, Local 2369 the opportunity to be
represented at the new employee orientation sessions which involve
employees in the bargaining unit.
(b) Post at its facilities in Bricktown, New Jersey, Bridgeton,
New Jersey and Plainfield, New Jersey, respectively, 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 and shall be posted and
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The Official
shall take reasonable steps to insure that said 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, Region II, 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.
/1/ The factors are as follows:
the required mandatory attendance of new employees at the
orientation sessions in question, the subject matter discussed and
the established agenda for such discussions, the Authority finds
such meetings to be formal discussions, within the meaning of
section 7114(a)(2)(A) of the Statute. The personnel lists who
conduct the discussions are, in the Authority's opinion,
"representatives of the agency." Hence, the discussion is between
representatives of the agency and "one or more employees in the
(bargaining) unit." Finally, the parties have stipulated, and the
record reveals, that the subjects covered concern personnel
policies, practices or other general conditions of employment.
/2/ Respondent also urges that the parties National Agreement in
Article 12, Section 6 acts is a knowing waiver. Since that agreement is
not in evidence in this matter, and the parties' did not offer it as a
part of the stipulation, I am unable to make a finding with respect to
Respondent's waiver argument.
/3/ I agree with the General Counsel that the "one-on-one" nature of
these meetings should not under section 7114(a)(2)(A) alter the outcome
herein.
Alfred R. Johnson, Jr., Esq., for the General Counsel
Daniel H. Green, Esq., and Penny Kaufman, for the Respondent
Mary Ostrowski, for the Charging Party
WE WILL NOT refuse to give the American Federation of Government
Employees, AFL-CIO; AFGE New York-New Jersey Council and American
Federation of Government Employees, Local 2369, the opportunity to be
represented at orientation sessions for new employees conducted by
agency representatives and which are attended by members of the
bargaining unit represented by the American Federation of Government
Employees, AFL-CIO; AFGE New York-New Jersey Council and American
Federation of Government Employees, Local 2369, and where personnel
policies and practices and other general conditions of employment are
discussed.
WE WILL NOT, in any like or related manner, fail or refuse to comply
with any provision of the Federal Service Labor-Management Relations
Statute.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
. . . (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 II,
whose address is: 26 Federal Plaza, Room 24-102, New York, New York
10278 and whose telephone number is: (212) 264-4934.
31 FLRA-ALJ; Case No. 8-CA-30011 August 19, 1983
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, Respondent, and AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging Party
Before: FRANCIS E. DOWD, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. On December 22, 1982, the Regional Director for
Region 8 of the Federal Labor Relations Authority, pursuant to a charge
filed on October 8, 1982, and amended on November 29, 1982, by the
American Federation of Government Employees, AFL-CIO, herein called the
Union, issued a Complaint and Notice of Hearing alleging that the
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland, herein called Respondent, had engaged in, and is
engaging in, unfair labor practices within the meaning of Section
7116(a)(1) of the Statute, in that on or about October 5, 1982,
Respondent, through its agent, Operations Supervisor Jacqueline Martin,
made a statement to a bargaining unit employee which interfered with,
coerced, and restrained her in the exercise of rights guaranteed by the
Statute. /1/ On January 10, 1983, and on January 25, 1983, Respondent
filed identical Answers to the Complaint, denying the allegations of the
Complaint.
The factual issue to be decided is whether or not the statement was,
in fact, made by Martin, as alleged in the Complaint. This finding in
turn depends upon my making a credibility determination between
Supervisor Martin and employee Jeanette Perkins. The legal issue is
whether the statement, if made, is violative of Section 7116(a)(1).
A hearing was held in Los Angeles, California at which the parties
were represented by counsel and afforded full opportunity to adduce
evidence and call, examine, and cross-examine witnesses and argue
orally. Briefs filed by Respondent and the General Counsel have been
duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
1. Respondent maintains a Branch Office in Compton, California. The
District Office, of which this branch is a part, is located in Torrance,
California. Jeanette Perkins is a claims representative in the Compton
Branch Office. From December 1980 until approximately October 1982, she
was the union representative for the branch. /2/ For approximately two
years, until August 1982, Perkins' immediate supervisor was Jacqueline
Martin. In approximately June 1982, Martin put Perkins under a
Performance Improvement Plan, or PIP. This is a formal notification to
the employee that his or her work is deficient. It generally outlines
what the employee must do to bring his or her work to an acceptable
level, and gives the employee a period of time, not less than 30 days,
in which to meet the goals outlined.
At the end of the time period, the employee is given a progress review.
This means that the supervisor audits various cases, reviewing them for
processing errors and timeliness. The supervisor uses a special form,
and documents each case audited. The Employee then has an opportunity
to make written comments on the form to explain or rebut what the
supervisor has documented. The final step of a progress review is a
meeting between the employee and the supervisor to discuss the audit and
the rebuttal comments.
2. On October 5, 1982, Supervisor Martin met with Perkins to discuss
with her the progress review resulting from the PIP. Although Martin
had transferred to the Torrance Office by this time, she returned to
finish the progress review, since she was the supervisor who initiated
it, and Perkins' new supervisor was not sufficiently familiar with the
work to finish the progress review. During the course of this meeting,
Martin explained why she felt that Perkins had not made the progress
necessary to meet the standards of her job, and Perkins interrupted her
and accused Martin of only doing this because of her (Perkins') union
activities. /3/ Martin credibly testified that she pointed out to
Perkins that her performance problems began long before she became a
union representative, and that she had been under a prior general
discussion memorandum. The meeting lasted about an hour and 15 minutes.
It ended at 4:00 at Perkins' request because she was "off the clock."
It did not resume on either of the next two days because Martin was in
Torrance. /4/
3. The conduct which is the subject of the Complaint is alleged to
have occurred at the meeting on October 5. According to Perkins, during
this performance review, Martin took a short break to get some coffee.
When she returned, Perkins initiated a conversation unrelated to the
PIP. She asked Martin whether she had heard that Danny Thomas was going
to be the new union representative for the Compton Office. Martin
acknowledged she had heard that, and told Perkins she hoped Thomas
wouldn't give the office as much trouble in his new position as Perkins
had.
Perkins asked Martin what she meant by that, but Martin made no further
comment.
4. Martin denied making the statement attributed to her by Perkins.
Rather, Martin testified that at some time prior to October 5, /5/
Perkins asked her whether she thought Thomas would make a good union
representative. Martin's recollection of that conversation was that it
was a casual conversation typical of the type of inquiry she often got
from Perkins, and that her response to Perkins was that she thought
Thomas would make a better union representative because she felt he
would be less emotional and more able to see both sides of an issue.
Since Martin had supervised Danny Thomas, her evaluation was based upon
experience.
5. In their respective briefs, Counsel for the General Counsel and
the Respondent have submitted their arguments as to why Perkins should
be credited over Martin, and vice versa. Essentially, however, my
resolution is based upon the determination I made at the hearing after
observing the demeanor of both witnesses and evaluating their respective
testimony from the standpoint of its inherent plausibility. I decided
then to credit Martin and, after reading the transcript and carefully
considering the briefs, I adhere to that determination. /6/ Martin
impressed me as being an intelligent supervisor quite conscious of the
labor-relations implications of anything she said, particularly to an
activist union steward like Perkins.
This is particularly true when one considers that the date of October 5
is shortly after the conduct of a ULP hearing involving this same office
and in which Martin was a witness. I find it hard to believe that
Martin would make such a remark to Perkins in the context of a PIP
review in which she was recommending her removal from the Federal
service. It is much more likely, as suggested by counsel for
Respondent, that Perkins was grasping at straws to find some basis for
overturning the dismissal action being taken against her.
Having concluded that Martin did not make the statement attributed to
her by Perkins, I conclude that the General Counsel has not proven the
facts alleged in the Complaint. Therefore, I do not need to decide
whether such statement, if made, would warrant finding a violation of
Section 7116(a)(1). In view of my factual finding herein, I find and
conclude that Respondent did not engage in any unfair labor practice and
therefore has not violated Section 7116(a)(1) as alleged in the
Complaint. It is therefore recommended that the Authority issue the
following:
That the Complaint in Case No. 8-CA-30011 be, and it hereby is,
dismissed.
/1/ The original charge alleged interference and coercion on October
5, 1982 "linking her (Jeanette Perkins) Union activities with potential
adverse action." The amended charge added a new date (August 11), added
the words "making threatening statements," and omitted the word "her."
Thus, it would appear that the Complaint is essentially based upon the
amended charge. Paragraph 8(a) of the Complaint concerning conduct on
August 11 was deleted at the hearing upon motion of the General Counsel.
/2/ Perkins had engaged in a substantial amount of union activity,
which included the filing of a number of grievances, unfair labor
practice charges, and EEO complaints. Of 95 grievances filed, 35 were
on behalf of Perkins.
/3/ This accusation is similar to the language of the original charge
filed the next day. Thus, that charge alleges that Perkins' union
activities could result in potential adverse action. The Complaint,
however, lacks the same specificity and instead alleges that "employees
who engage in protected union activities may lose their job due to such
activities."
/4/ On October 8, 1982, Martin left her final written conclusion
regarding the PIP on Perkins' desk in the Compton Office. Perkins was
not at work that day because she was on "open sick leave," and thus did
not receive the final report in person. In this report, Martin formally
notified Perkins that she was recommending Perkins be removed from
Federal service. This final report and recommendation was later removed
from Perkins' personnel file as part of a settlement of a grievance.
/5/ Although Martin initially placed the conversation as having
occurred after October 5 (Tr. 35), she very credibly testified later
that she was not sure exactly when the conversation took place - 1981 or
1982 (Tr. 44, 45) - and ultimately stated that it must have occurred
prior to October 5 (Tr. 50, 51). Although the General Counsel points to
this apparent inconsistency as a basis for discrediting Martin, I had
the opportunity to observe her demeanor in this respect and would
further note that I personally questioned her about this particular
point (Tr. 45, line 17 - Tr. 46, line 3) when I recognized an
uncertainty in her testimony. It is my conclusion, based upon her
testimony and demeanor, that she accurately recalled her conversation,
and while she did not know the precise date, it was not on October 5,
1982.
/6/ In her brief, Counsel for General Counsel asserts that Martin
gave inconsistent answers to the same question and this casts doubt on
her credibility. The simple answer to this is that the questions were
not the same. The first (Tr. 34, line 20) inquired whether Martin made
any statements to Perkins regarding her union activities; the second
(Tr. 49, line 19) inquired whether Perkins made any comments to Martin
regarding her (Perkins') union activities. Because the questions were
not the same, the responses thereto were understandably different. I
also reject, as having no foundation, General Counsel's naked assertion
that Martin's testimony was vague, contradictory and patently self
serving. Martin was an impressive witness and her testimony was more
persuasive than that of Perkins.
Daniel H. Green, for the Respondent
Barbara Lawson, for the Charging Party
Deborah S. Wagner, Esq., for the General Counsel
31 FLRA-ALJ; Case No. 7-CA-30021 August 9, 1983
U.S. ARMY CORPS OF ENGINEERS, KANSAS CITY DISTRICT, KANSAS CITY,
MISSOURI, Respondent, and NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 29, Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
This proceeding, under Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns, principally, an alleged refusal to
bargain as the result of an unilateral change of conditions of
employment where adequate notice of the proposed changes was given; the
Union requested bargaining; Respondent agreed to bargain; neither
Respondent nor the Union proposed a date to commence negotiations; and
Respondent had not fixed a time for intended implementation of its
proposed changes.
In addition, when Respondent unilaterally implemented its changes, it
implemented a change not included in its original proposal as to which
Respondent asserts there was no adverse impact. This proceeding was
initiated by a charge, filed on October 12, 1982 (G.C. Exh. 1(a)), which
alleged violation of Secs. 16(a)(1), (5), (7) and (8) of the Statute;
and a first amended charge, filed on December 6, 1982 (G.C. Exh. 1(b)),
which alleged a violation of Secs. 16(a)(1) and (5) of the Statute. The
Complaint and Notice of Hearing (G.C. Exh. 1(c)) issued on December 29,
1982; the Complaint alleged a violation of Secs. 16(a)(1) and (5) of
the hearing was set for February 2, 1983, at a place to be determined.
By Order dated January 10, 1983 (G.C. Exh. 1(e)), the place of hearing
was fixed; and by Order dated January 13, 1983 (G.C. Exh. 1(f)), the
hearing was rescheduled for February 18, 1983, pursuant to which a
hearing was duly held on February 18, 1983, in Kansas City, Missouri,
before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved and were afforded
opportunity to present oral argument which each party waived. At the
close of the hearing, March 18, 1983, was fixed as the date for mailing
post-hearing briefs and each party timely mailed an excellent brief, /2/
received on or before March 24, 1983, which have been carefully
considered. Upon the basis of the entire record, /3/ including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
1. Respondent on, or about, December 29, 1975, issued a regulation
titled "Medical Examinations". This regulation was Kansas City District
Regulation 690-1-005 (G.C. Exh. 3) and remained in effect until on, or
about, August 1, 1982.
2. By letter dated April 23, 1982, Mr. John H. Andrews, Personnel
Officer, advised Mr. Gary W. Divine, President of the National
Federation of Federal Employees, Local 29 (hereinafter referred to as
the "Union"), the certified exclusive representative of all employees of
the U.S. Army Engineer District, Kansas City, Missouri, with certain
exceptions more fully set forth in paragraph 4 of the Complaint, of its
proposed revision of KCDR 690-1-005 /4/ (G.C. Exh. 4), the proposed
revised regulation being renumbered as KCDR 690-1-339 (G.C. Exh. 5). In
his covering letter transmitting copies of proposed KCDR 690-1-339, Mr.
Andrews stated, in part, as follows:
" . . . Revision was made primarily to update policies and
procedures and to conform to OPM regulations.
"Any comments, suggestions, or recommended changes should be
received by this office no later than 30 April 1982.
"If you have questions concerning this draft regulation, please
contact Bob Blaylock in this office." (G.C. Exh. 4).
3. By letter dated April 28, 1982, to Mr. Andrews, Mr. Divine
responded, in part, as follows:
" . . . I hereby request negotiations on KCDR 690-1-339. Prior
to the commencement of negotiations, I request NFFE Local 29 to be
provided with a copy of the existing KCDR 690-1-339 and pertinent
OPM regulations, and a briefing on the proposed changes.
"NFFE Local 29 will provide you with our proposals at the
commencement of negotiations." (G.C. Exh. 6).
4. By letter dated May 3, 1982, Mr. Andrews responded to Mr. Divine,
in part, as follows:
" . . . if you desire to review the existing KCDR and pertinent
OPM regulations, they are available in the library and/or the
Personnel Office.
"Request we be provided with a copy of any proposals you may
have so that we may schedule any necessary negotiations. Also, I
see no need for a formal briefing prior to negotiations in that
the content of the proposed regulation is self-explanatory, and
any specific questions you may have can be answered by Mr.
Blaylock." (G.C. Exh. 7).
5. By letter dated May 28, 1982, Mr. Divine responded to Mr. Andrews
on several matters, including KCDR 690-1-339, and with regard thereto,
stated, in part, as follows:
" . . . you refused to provide the requested copies. You did,
however, state that the requested regulations were available for
'review' in the library and/or Personnel Office.
"First, these regulations are not available in the library, and
secondly, I tried on two separate occasions to locate these
regulations in the Personnel Office; however, they were not
readily available." (G.C. Exh. 8).
Mr. Divine renewed his request for copies of the regulations. No
doubt, the reason for his inability to locate "copies of the existing
KCDR 690-1-339" was that there was no existing KCDR 690-1-339, other
than the draft proposals, and, in fact the existing regulation was KCDR
690-1-005.
6. By letter dated June 1, 1982, Mr. Michael E. George, Acting
Personnel Officer, transmitted "copies of the existing KCDRs as
requested, and stated, in part,
"Request you provide your proposals . . . not later than 9 June
1982 so that any necessary negotiations may be accomplished.
(G.C. Exh. 9).
7. On June 23, 1982, as Mr. Divine was leaving a meeting on another
subject, Mr. Blaylock spoke to Mr. Divine in the hall about KCDR
690-1-339. Mr. Divine testified, in part, as follows:
" . . . Mr. Blaylock approached me relative to negotiations on
the Kansas City District medical examinations.
"In that conversation, Mr. Blaylock indicated that we needed to
get together to address that regulation. I concurred that we did
need to get together on it. I also brought to his attention that
there had been several other items which had been outstanding for
an extended period of time, and I felt that we needed to get
together on them as well, and we need to establish some type of
priority to address all the negotiations that we had ongoing." (TR
42).
Mr. Blaylock testified concerning the same conversation, in part, as
follows:
" . . . I inquired of Divine when we could get together and
negotiate on the implementation of KCDR 690-1-339 and on two other
KCDRs which were being reviewed at the same time.
"Mr. Divine responded to me that there was a number of other
issues that had been raised before these cases of ours had been
raised. He felt it was necessary to resolve these other issues
before we took on anything new.
"Q. What did you say to that, do you recall?
"A. I asked him what issues. He referred to an Army
regulation on pecuniary liability, a proposal that we had
submitted on initiating a grievance procedure, and a proposal
submitted on use of official time. I believe it was an Army
regulation on the recoupment of travel expenses and travel
advances, and I responded that I had not been assigned
responsibility for any of those, and I was merely inquiring about
the issues that I had been assigned responsibility for and
couldn't answer his questions concerning the others." (Tr. 86).
8. By letter dated June 28, 1982, to Mr. Divine, Mr. Andrews, after
reviewing various correspondence concerning KCDRs 690-1-339, 690-1-500
and 690-1-772 and Mr. Divine's conversation with Mr. Blaylock on June
23, stated, in part, as follows:
" . . . I share your desire to resolve these other matters as
expeditiously as possible; however, I cannot accept their
resolution as a stipulation to conducting any other business.
"The KCDRs in question contain policies and procedures which
are essential to our operation, and in some cases affect the
morale and welfare of District employees. I cannot delay the
implementation of these directives any longer. Unless you provide
Local 29's proposals and an indication of your willingness to
commence negotiations by 2 July 1982, I intend to implement KCDRs
690-1-339, 690-1-500, and 690-1-772."
(G.C. Exh. 10).
9. By letter dated June 29, 1982, Mr. Divine responded, in part, as
follows:
"In accordance with Article 8 of the Agreement, I respectfully
request the names of the District's negotiation committee and the
designated chairperson and alternate chairperson. After this
formal notification, we will establish a mutually agreed upon time
and place for such negotiations. . . . " (G.C. Exh. 11).
10. By letter dated July 1, 1982, Mr. Andrews responded, in part, as
follows:
"The fact that Local 29 will provide the District with
counterproposals at the negotiations table is acknowledged;
however, I fail to see what purpose is served in not allowing
management to review your counterproposals prior to commencing
negotiations. It would seem that this procedure would only delay
the negotiation process.
"In accordance with Article 8 of the Agreement and your
request, the District negotiation committee is as follows:
Edward N. Elkins
Paul J. Kountzman
Darcy V. Hennessy
Robert G. Blaylock
Chairperson
Alternate Chairperson
"If it is your desire to meet in accordance with Article 7,
Section 2, and discuss the context of the proposed KCDRs prior to
any necessary negotiations, Mr. Mike George and Mr. Bob Blaylock
have been designated my representatives for that purpose." (G.C.
Exh. 12).
11. By letter dated July 13, 1982, to Mr. Divine, Mr. Andrews stated
as follows:
"Reference is made to the following correspondence:
"a. MRKPO-T letter dated 28 June 1982, pertaining to previous
correspondence concerning proposed changes to KCDRs 690-1-339,
690-1-500, and 690-1-772.
"b. Your letter . . . dated 29 June 1982, in which you
requested the names of the District's negotiation committee, and
expressed a willingness to meet with me or my representative to
resolve the issues, utilizing the procedures of Article 7, Section
2.
"c. MRKPO letter dated 1 July 1982, in which I provided you
with the names of the District's negotiation committee, and
offered to meet in accordance with Article 7, Section 2 to discuss
the proposed KCDRs.
"I have made every effort to comply with both Chapter 71 of
Title 5 and the Negotiated Agreement. You have continually
refused to provide counterproposals, or any indication as to why
you object to the proposed KCDRs. Your 29 June 1982 letter
advised that you would meet for negotiations once we provided you
with the names of the District's negotiation committee. This was
accomplished on 1 July 1982, yet there is still no movement on the
part of Local 29. I have, therefore, taken the necessary action
to implement the aforementioned KCDRs." (G.C. Exh. 13).
12. By letter dated July 15, 1982, to Colonel Gurnie C. Gunter,
District Engineer (G.C. Exh. 14), Mr. Divine protested " . . . the
District's flagrant violation of both the Negotiated Agreement and 5 USC
Chapter 71 . . . " and further stated, in part, as follows:
"As always, NFFE Local 29 is willing to discuss or negotiate
this issue with you. Again, I propose we establish a negotiation
team to negotiate all the issues presently pending negotiations. .
. . In view of the above-stated facts, I request a joint
labor-management meeting with you on 16 July 1982." (G.C. Ex. 14).
13. Mr. Divine testified that late in the afternoon on July 16,
1982, he was in contact with Mr. Blaylock on other issues and he asked
if a meeting, as he had requested in his letter to Colonel Gunter, were
scheduled and that Mr. Blaylock "informed me that that time that there
were (sic) be no meeting." (Tr. 50). Mr. Divine further stated that
when he returned to his desk on July 16, 1982, " . . . there was a copy
of a Kansas City District Reg. relative to medical examinations /5/
laying on my desk." (Tr. 51).
14. KCD Regulation No. 690-1-339 (G.C. Exh. 15) was issued, dated
and effective August 1, 1982; however Mr. Divine testified that he did
not receive it until August 26, 1982 (Tr. 51). The Regulation as
implemented contained a Paragraph 16, entitled, "Eye Examinations for
Personnel using Video Display Terminals", which had not been included in
Respondent's proposed draft regulation of April 1, 1982 (G.C. Exh. 5),
nor had it been a part of KCDR 690-1-005 (G.C. Exh. 3). There is no
dispute that Respondent had given no notice whatever to the Union of
this provision prior to its implementation (Tr. 56, 92, 93). The
paragraph in question is as follows:
"16. Eye Examinations for Personnel using Video Display
Terminals. Employees operating video display terminals should be
given periodic eye examinations as prescribed by the American
Optometric Association and the National Society to Prevent
Blindness. Examinations should also be performed whenever
employee becomes symptomatic. If a contract optometrist is not
available, the examination may be performed by a duly licensed
optometrist and paid for by the Kansas City District." (G.C. Exh.
15).
15. There is no dispute that Respondent's proposed draft regulation
(paragraphs 1-15 and 17-18 of KCDR 690-1-339 as implemented) involved a
substantial change of conditions of employment, the record so shows
(see, for example, Tr. 36-41), and I find that these paragraphs did
involve substantial changes of conditions of employment.
16. The Union asserts that the "new" provision, inserted as
Paragraph 16 of KCDR 690-1-339 as implemented, had adverse impact on
bargaining unit employees because: "the language . . . was rather
vague"; "talks about examination should be given periodically"; "did
not address whether the eye exam will be mandatory"; did not "address
concerns of what the purpose of the eye exam would be, or what the
results would be used for. It didn't indicate what would happen if an
employee failed an eye exam . . . showed that the individual had some
eye condition that needed to be corrected, or, indeed, impaired them to
do their duty"; whether they "could be directed to take a fitness for
duty examination." (Tr. 56-57; see, also, Tr. 58-59). Mr. Blaylock
testified that examinations under Paragraph 16 are not mandatory, " . .
. they're not required" (Tr. 95); that such examinations would be like
those already provided for by Article 11, Section 6 of the parties'
Agreement (Tr. 95) which provides, in part, as follows:
"a. The Public Health Service . . . provides occupational
health services to Employees . . . Among those services the
Health Unit is authorized to provide are the following:
"(3) Periodic Testing for the early detection of chronic
disease or disorders, such as for diabetes, visual defects,
glaucoma . . .
"b. Employee participation in these programs is voluntary;
however, both the Employer and the Union encourage Employee
participation." (G.C. Exh. 2, Art. 11, Section 6).
Respondent states in part, as to Paragraphs 1-15 and 17-18 of KCDR
690-1-339, that:
" . . . it appears that the Union did not meet any duties of
good faith bargaining under 5 U.S.C. 7114(b): the Union did not
approach the negotiations with a sincere resolve to reach a
collective bargaining agreement by its actions in placing
preconditions on negotiations, the Union was not prepared to
discuss and negotiate on the change by its actions in continually
delaying negotiations, and the Union would not meet at reasonable
times and convenient places as necessary and made absolutely no
effort to avoid unnecessary delays by its dilatory tactics in
approaching negotiations . . . ." (Respondent's Brief, p. 10).
Respondent cites and relies upon United States Army Air Defense
Center and Fort Bliss, Fort Bliss, Texas and National Association of
Government Employees, Local R14-89, Case No. 6-CA-862 (OALJ-82-41,
January 21, 1982), Administrative Law Judge Decision Report No. 7, March
26, 1982 (hereinafter referred to as the "Fort Bliss" case or decision)
wherein Judge Heifetz dismissed a refusal to bargain allegation,
stating, in part, as follows:
"In an effort to tailor manpower needs with upgraded equipment
Respondent desired to change tours of duty without undue delay.
Faced with a contract obligation to give the Union and employees
with at least two weeks' notice of such a change, Mr. Ronquillo
met with Mr. Flores on October 1, 1980, to tell him of the
proposal to make the change on October 19 . . . Because the Union
desired written justification for the Change, even though an oral
explanation had been tendered and written proposed schedules had
been shown to Mr. Flores, Respondent agreed to postpone the change
for an additional six weeks. The Union was given from October 11
. . . to October 27 to respond . . . The Union did not demand
impact bargaining until October 23.
It was not available to discuss ground rules until November 13
and, even then, it postponed the first meeting until November 19,
four days later than the date it knew Respondent would have to
post the proposed schedule in order to make it effective on
November 30.
" . . . Under the circumstances, the actions of the Union do
not fall within the prescriptions of Section 7114(b)(1), (2) and
(3) and, therefore, the action of Respondent in posting the
schedule on November 15 in order to comply with the two week
notice provision was not unreasonable."
The Fort Bliss case is both distinguishable and inapplicable. It is
not applicable because, at the outset, it involved only impact
bargaining, whereas, the present case involves a demand to bargain on
the decision itself and there is no contention that the proposed
regulations was issued pursuant to a reserved right of management. Fort
Bliss is distinguishable because there the agency gave notice of the
date of intended implementation of the schedule change, whereas here,
Respondent did not give notice of any intended date of implementation;
in Fort Bliss, the parties agreed on a date to meet (November 13) which
the Union cancelled and agreed on a further date (November 19) which the
Union also postponed, whereas, here, no date for negotiations was ever
fixed and Respondent's justification for not contacting the Union
regarding the setting up of a time and place to negotiate was, as Mr.
Blaylock testified, "I personally felt that since we didn't have any
proposals from them, for me to unilaterally establish the time wouldn't
accomplish anything." (Tr. 115).
There is no doubt that Respondent and the Union each sought to impose
upon the other negotiating procedures; Respondent by seeking the
Union's proposals in writing in advance of negotiations; /6/ and the
Union by seeking to " . . . negotiate all the issues presently pending
negotiations".
However, the record shows, and I find, that neither Respondent nor the
Union insisted upon its request as a condition to negotiating proposed
KCDR 690-1-339. Nor is there any possible doubt that the Union did not
suggest any date for the commencement of negotiations. The only
reference by Respondent to commencement of negotiations was in Mr.
Andrews' letter of June 28, 1982, in which he stated,
"Unless you provide Local 29's proposals and an indication of
your willingness to commence negotiations by 2 July 1982, I intend
to implement KCDRs 690-1-339, 690-1-500, and 690-1-772." (G.C.
Exh. 10).
By his letter of June 29, 1982, Mr. Divine responded by requesting
the names of Respondent's negotiators, as specifically provided by
Article 8, Section 3(c) (G.C. Exh. 2), and stated,
"After this formal notification, we will establish a mutually
agreed upon time and place for such negotiations. . . . " (G.C.
Exh. 11).
Strictly, speaking, the Union by July 2 did indicate its willingness
to commence negotiations. Literally, Article 8, Section 3(c) of the
parties' Agreement requires that,
"c. Names of the members on each negotiating committee will be
exchanged formally by the parties in writing no later than seven
(7) calendar days prior to the commencement of negotiations. . . .
" (G.C. Exh. 2).
By letter dated July 1, Mr. Andrews supplies the names of
Respondent's negotiators. The Union received Mr. Andrews' letter the
following day, July 2, which was a Friday. The July 4th weekend
followed (Monday being a holiday). In his letter of July 1, Mr. Andrews
acknowledged that the Union would provide its counterproposals "at the
negotiations table", but did not suggest any date for the commencement
of negotiations. The Union did not supply the names of its negotiators,
nor had Respondent asked for them, although, certainly, the Agreement
provides for the exchange of such information; nor did the Union come
forward with a date for the commencement of negotiations. Without
further contact or notice whatever, Respondent by its letter of July 13,
1982, implemented KCDR 690-1-339.
Although the Union was dilatory following receipt of Respondent's
July 1, 1982, letter, nothing in the record supports Respondent's
assertion that the Union would not meet at reasonable times. Indeed,
Respondent was as remiss as the Union as neither Respondent nor the
Union saw fit to suggest a time for negotiations and without notice of a
time frame, the Union, understandably, felt no urgency. To be sure, the
Union had time between July 2 and 13 to do something. It could have
submitted the names of its negotiators; it could have requested a
meeting pursuant to Article 7, Section 2; it could have suggested a
date for negotiations; it could have contacted Respondent; but, for
that matter, Respondent could have taken the initiative.
The record does not show bad faith by the Union or that the Union placed
any precondition on negotiating on proposed KCDR 690-1-339 although, as
noted above, both the Union and Respondent did seek to establish its own
procedures for negotiations; but neither made its procedure a condition
to negotiations. Respondent caused delay by the error in its initial
notice concerning the number of the existing Kansas City District
Regulation, delay which it perpetuated by its initial refusal to supply
copies of the referenced "existing" regulations. The Union's request,
pursuant to Article 8, Section 3(c), for the names of Respondent's
negotiators, can not constitute a violation of the Union's duty to
negotiate in good faith as its entitlement to such information was
clearly provided for by its collective bargaining agreement. Again,
Respondent could have expedited negotiations by furnishing this
information, as provided for by the Agreement, with its initial notice
or at any time thereafter. Not only had Respondent's statement in its
letter of June 28, 1982, been ambiguous, i.e., " . . . indication of
your willingness to commence negotiations by 2 July 1982 . . . ", but
Article 8, Section 3c. provides that the names of the members on each
negotiating committee " . . . will be exchanged formally . . . in
writing no later than seven (7) calendar days prior to the beginning of
negotiations". The Union did insist that Respondent comply with Article
8, Section 3c. and was entitled to rely on the provision thereof that
negotiations would not commence earlier than seven days after Respondent
had supplied the names of its negotiators. Accordingly, Respondent's
notice of June 28, whatever its meaning, was rendered meaningless and
Respondent took no action to establish any further time frame for the
Union to act.
Indeed, if the provisions of Article 8, Section 3c. were followed,
negotiations could not have begun earlier than July 8 or 9;
nevertheless, Respondent, on July 13, 1982, implemented KCDR 690-1-339.
Without notice of any time frame for the Union to commence negotiations
after it supplied the names of its negotiators, /7/ the Union was not
afforded a reasonable opportunity to negotiate and Respondent's
unilateral implementation of KCDR 690-1-339 violated Sections 16(a)(5)
and (1) of the Statute.
As to Paragraph 16, there is no dispute that Respondent added this
paragraph to the regulation as implemented; that it had not been
contained in the existing regulation (KCDR 690-1-005); that it was not
contained in its proposed draft regulation KCDR 690-1-339; or that
Respondent gave no notice whatever to the Union of this provision prior
to its implementation. Nor can there be any doubt that by such action
Respondent violated Sections 16(a)(5) and (1) of the Statute since,
obviously, by its unilateral implementation, Respondent wholly deprived
the Union of any opportunity to negotiate, unless, as Respondent
asserts, Paragraph 16 had absolutely no foreseeable adverse impact on
bargaining unit employees. Paragraph 16 provides that:
Employees operating video display terminals should be given
periodic eye examinations . . . examinations should also be
performed whenever employee becomes symptomatic. If a contract
optometrist is not available, the examination may be performed by
a duly licensed optometrist and paid for by the Kansas City
District." (G.C. Exh. 15).
On its face, "should be given" and "should also be performed" implies
that such examinations are required, and, recognizing that the
unilateral imposition of a new requirement could have adverse impact on
unit employees, Respondent points to Mr. Blaylock's testimony that
"they're not required" (Tr. 95) and asserts that, "If the District is
contending that the exams are not mandatory, then, it is bound by this
interpretation and cannot revise this position without notifying the
Union of the change." (Respondent's Brief, p. 12). This is an
interesting argument but one which I must reject. First, the provision
as unilaterally implemented, on its face, implied that eye examinations
for all video display operators were required and were further required
whenever an employee "becomes symptomatic." This implication was made
all the more certain by by the inclusion of this paragraph immediately
after Paragraphs 13, 14 and 15, which provided for mandatory medical
examinations, and immediately before Paragraph 17, entitled "Other
Mandatory Medical Examinations". Second, Mr. Blaylock's interpretation
was wholly unknown until presented in the unfair labor practice case.
Third, the wording of Paragraph 16 is in stark contrast to the
provisions of Article 11, Section 6 of the parties' agreement which
provides, in part, that:
"a. The Public Health Service . . . provides . . . services to
Employees . . . Among those services . . . are the following:
"(3) Periodic testing for the early detection of . . . visual
defects . . .
"b. Employee participation in these programs is voluntary . .
. . " (G.C. Exh. 2, Art. 11, Section 6).
Fourth, if as Respondent argues, Paragraph 16 did no more than
provide for "periodic eye examinations" as already "available from the
Health Unit" (Respondent's Brief, p. 12), Respondent's purpose in
including it in the form of a regulation becomes suspect. Mr. Divine
testified that the Union was concerned, inter alia, as to the use and
access of the results of the examinations.
Mr. Divine testified as to various foreseeable areas of adverse
impact, including the consequences to employees, such as reassignment,
treatment or direction for a fitness for duty examination; conduct of
examinations by the employee's personal physician, etc. As the record
amply shows that Paragraph 16, as implemented, did have foreseeable
adverse impact on unit employees and Respondent's unilateral
implementation of this provision, not disclosed to the Union prior to
its implementation, was a further violation of Sections 16(a)(5) and (1)
of the Statute. Respondent's effort to mitigate the adverse impact of
this paragraph by qualifying testimony herein is not a substitute for
its duty to give the Union notice and an opportunity to bargain prior to
implementation of such new condition of employment.
Having found that Respondent violated Sections 16(a)(5) and (1) of
the Statute by its unilateral implementation of KCDR 690-1-339, it is
recommended that the Authority adopt the following:
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
Section 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority
hereby orders that the United States Army Corps of Engineers, Kansas
City District, Kansas City, Missouri, shall:
1. Cease and desist from:
(a) Refusing to consult, confer or negotiate in good faith with
the National Federation of Federal Employees, Local 29, the
exclusive representative of its employees, or any other exclusive
representative, concerning proposed KCDR 690-1-339, entitled
"Medical Examinations".
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action:
(a) Withdraw KCDR 690-1-339, unilaterally implemented on, or
about, July 13, 1982, and printed and distributed on, or about,
August 1, 1983, and return to the status quo ante as it existed
prior thereto by forthwith reinstating KCDR 690-1-005, issued
December 29, 1975.
(b) Notify the National Federation of Federal Employees, Local
29, of any intended changes of KCDR 690-1-005, and, upon request,
meet and negotiate in good faith on such intended changes.
(c) Post at its facilities in Kansas City, Missouri, 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 Engineer, and shall be posted and
maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The District
Engineer shall take reasonable steps to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director of Region VII, Federal Labor
Relations Authority, whose address is: Suite 301, 1531 Stout
Street, Denver, Colorado 80202, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
herewith.
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of its
Statute reference, i.e., Section 7116(a)(5) will be referred to, simply,
as "Section 16(a)(5)".
/2/ Respondent submitted only the original of its brief, not the
original and four (4) copies as required by Section 2423.25 of the
Regulations, as amended, effective September 10, 1981, Fed. Reg. Vol.
No. 46, No. 154 (August 11, 1981).
/3/ The transcript contained an ordinate number of errors. Counsel
for General Counsel has filed a Motion to Correct The Transcript of The
Proceedings, which I find wholly meritorious; the transcript is hereby
corrected as requested; and the corrections are set forth in the
Appendix hereto. Some of the errors, including the misspelling of the
undersigned's name, were so egregious that the reporting contractor, SKS
Group, Ltd., supplied a corrected transcript which made some
corrections; however, except for correcting the spelling of my name on
page 1 and at some other points (but see, p. 5, 1. 8) and apparently
making the same correction as correction number 2 requested by Counsel
for the General Counsel, the "corrected" transcript furnished by SKS did
not make any of the corrections included in the Motion of Counsel for
General Counsel.
/4/ Mr. Andrews referred to "a proposed revision to KCDR 690-1-339".
In actuality, the then existing regulation was KCDR 690-1-005 and the
revised draft regulation was KCDR 690-1-339. Some subsequent
correspondence, e.g., G.C. Exh. 6, also refers to "Proposed Revisions of
KCDR 690-1-339". On the basis of the record, I shall treat this
reference as erroneous as the record shows that KCDR 690-1-005 was the
existing regulation to be revised by KCDR 690-1-339.
/5/ This document was not introduced as an Exhibit and its content
was not further explored.
/6/ Inasmuch as Respondent did not insist upon this demand as a
condition to bargaining, I express no opinion as to whether it could
have done so. I am aware that the Authority has indicated that this may
be done " . . . through the establishment of mutually agreeable
negotiation procedures or ground rules . . . for pre-meeting exchange of
written position statements", Department of Health and Human Services,
Region IV, Atlanta, Georgia, 9 FLRA No. 150, 9 FLRA 1065, 1066 n. 2
(1982), which, by implication, may "rule out" unilateral insistance by
agency management on submission of pre-meeting proposals, although, as
noted, I expressly do not decide this question as it is not before me.
See also, Environmental Protection Agency and AFGE, AFL-CIO, Case Nos.
3-CA-2767, 3-CA-2803, 3-CA-2825 (OALJ-82-116, July 30, 1982); but see,
Division of Military and Naval Affairs, State of New York, Albany, New
York, 8 FLRA No. 71, 8 FLRA 309 (1982).
/7/ Notice "prior to making its final determination of decision"
Southeast Exchange Region of the Army and Air Force Exchange Service,
Rosewood Warehouse, Columbia, South Carolina, A/SLMR No. 656, 6 A/SLMR
237, 239 (1976), see cases set forth in United States Department of
Agriculture, Plant Protection and Quarantine, Animal and Plant Health
Inspection Service and National Association of Agriculture Employees,
Case No. 6-CA-1195 (OALJ 82-60, March 10, 1982), has been applied in
various circumstances. Although I am not aware of any decision squarely
in point, the principle is fully applicable here, i.e., the exclusive
representative must be notified prior to an agency's intended date of
implementation in order that the exclusive representative have a
reasonable opportunity to negotiate.
Darcy V. Hennessy, Esquire, for the Respondent
Barrie M. Shapiro, Esquire, for the General Counsel
Joseph Swerdzewski, Esquire, for the General Counsel
WE WILL NOT refuse to consult, confer, or negotiate in good faith
with the National Federation of Federal Employees, Local 29, the
exclusive representative of our employees, or any other exclusive
representative, concerning proposed KCDR 690-1-339, entitled "Medical
Examinations".
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL withdraw KCDR 690-1-339, unilaterally implemented on, or
about, July 13, 1982, and printed and distributed on, or about, August
1, 1982, and we will return to the status quo ante as it existed prior
thereto by forthwith reinstating KCDR 690-1-005, issued December 29,
1975.
WE WILL notify the National Federation of Federal Employees, Local
29, of any intended changes in KCDR 690-1-005, and, upon request, meet
and negotiate in good faith on such intended changes.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any 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 VII,
whose address is: Suite 301, 1531 Stout Street, Denver, Colorado 80202,
and whose telephone number is: (303) 837-5224.
31 FLRA-ALJ; Case No. 6-CA-30025 July 29, 1983
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE, SAN
ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE, TEXAS, Respondent,
and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617,
Charging Party
Before: GARVIN LEE OLIVER, Administrative Law Judge
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Six, Federal Labor Relations Authority,
Dallas, Texas against the United States Department of Defense,
Department of the Air Force, San Antonio Air Logistics Center, Kelly Air
Force Base, Texas (Respondent), based on a charge filed by the American
Federation of Government Employees, AFL-CIO, Local 1617 (Charging Party
or Union). The complaint alleged, in substance, that Respondent
violated section 7116(a)(1) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (the Statute) by telling an
employee he was getting a lower rating on his annual performance
appraisal because of his union activities, and violated section
7116(a)(2) of the Statute by giving an employee a lower annual
performance appraisal rating because of his Union membership and
activities.
Respondent's answer denied any violation of the Statute.
A hearing was held in San Antonio, Texas. The Respondent, Charging
Party, and the General Counsel were represented by counsel 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, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Mr. Ernest Cantu is employed in Respondent's
Transportation-Operations Division as a hazardous cargo packer. For the
past 14 years he has also held positions in the Union, and for the last
3 or 4 years has been division steward in the division in which he is
employed. His duties as division steward require him to be away from
his work area on official time approximately 40 percent of his worktime
while engaged in activities in support of the Union. Respondent was
aware of his Union activities on official time.
On May 26, 1982, Mr. Cantu's second level supervisor, W. O. Lynn,
conducted a discussion with him concerning his appraisal for the period
March 1, 1981 through March 31, 1982. The appraisal had been prepared
by Cantu's first level supervisor, David Sanchez, who had been Cantu's
supervisor during 4-6 months of the appraisal period. Mr. Cantu asked
Lynn why the appraisal was so much different from his previous
outstanding rating. Mr. Lynn replied, "Ernie, you are gone a lot on
your Union duties." /1/
As noted, David Sanchez prepared Cantu's appraisal. He went over it
with Lynn, but Lynn made no changes. Sanchez did not consider Cantu's
Union activities in preparing the appraisal. He did not refer to the
previous year's appraisal prepared by another supervisor under a
completely different standard. He rated Cantu to be generally above
average in 14 of the 19 elements. He rated Cantu slightly below average
in only two areas relating to time working as opposed to socializing,
etc., and initiative in starting projects. He based these factors on
observing Cantu on one occasion talking in another area and being slow
getting started because of socializing around the coffee pot after the
stand-up meetings. /2/ Cantu's total score placed him in the top third
or better of the 17 employees.
The statement of supervisor Lynn, which created the impression that
Mr. Cantu was getting a lower rating on his annual performance appraisal
because of his use of official time for authorized Union activities,
constituted a violation of section 7116(a)(1) of the Statute. Such
statements clearly have a tendency to interfere with, restrain, or
coerce employees in the exercise of their rights under the Statute to
freely form, join, or assist a labor organization as a steward. U.S.
Marine Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA
No. 97 (1981); U.S. Department of the Treasury, Internal Revenue
Service, Louisville District, 11 FLRA No. 64 (1983).
In view of the credibility resolution made above, a preponderance of
the evidence does not support a violation of section 7116(a)(2), as
alleged. Protected Union activity was not established as a motivating
factor in the preparation of the employee's performance appraisal.
Internal Revenue Service, Washington, D.C., 8 FLRA No. 95 (1981);
United States Department of Transportation, Federal Aviation
Administration, Houston Air Traffic Control Center, 8 FLRA No. 100
(1982).
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following 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 United States Department of Defense,
Department of the Air Force, San Antonio Air Logistics Center, Kelly Air
Force Base, Texas shall:
1. Cease and desist from:
(a) Making statements to employees from which it might
reasonably be inferred that protected union activities on behalf
of the American Federation of Government Employees, AFL-CIO, Local
1617, will be a factor considered in annual performance
appraisals.
(b) Making any other statement or comment which interferes
with, restrains, or coerces any employee in the exercise of the
right accorded by the Federal Service Labor-Management Relations
Statute to form, join, or assist any labor organization, or to
refrain from any such activity, freely and without fear of penalty
or reprisal.
(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) Post at its facilities 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 Commander and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Commander shall take reasonable steps to insure that
such notices are not altered, defaced, or covered by any other
material.
(b) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Region Six, Federal Labor Relations Authority, Dallas, Texas, in
writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
/1/ Mr. Lynn denied telling Cantu that his appraisal had anything to
do with his Union activities. He testified that Cantu asked if he was
rated lower because of his Union activities, and he replied that Union
activities had nothing to do with the appraisal. Lynn testified that
Cantu brought up the fact that he was gone a lot on Union business, and
he merely agreed with Cantu, but told him that it was not considered in
the rating.
I credit Cantu's testimony in this respect. The testimony of Robert
A. Vargas reflects that Lynn made a similar remark to him. Mr. Lynn is
not a very clear or precise speaker, and the totality of his testimony
alone also convinced me that he either made the explicit statement
alleged or came so close, perhaps even by inadvertence, as to create the
definite impression that Cantu's absences on official time for Union
activities affected his appraisal.
/2/ Cantu denied that he socialized "in other areas" or was late
getting started. Vargas supported Cantu's testimony. I credit Sanchez.
There was no evidence of anti-union animus on his part. His
explanations of the ratings, while necessarily subjective and open to
debate concerning his opportunity to observe, semantic interpretation,
and qualifications to supervise, appeared sincere and forthright. I
find that his evaluation was devoid of any disparate treatment because
of Cantu's Union activities.
Major Lewis G. Brewer, Esquire, for the Respondent
Steven M. Angel, Esquire, for the Charging Party
James E. Dumerer, Esquire, for the General Counsel, FLRA
WE WILL NOT make statements to employees from which it might
reasonably be inferred that protected union activities on behalf of the
American Federation of Government Employees, AFL-CIO, Local 1617, will
be a factor considered in annual performance appraisals.
WE WILL NOT make any other statement or comment which interferes
with, restrains, or coerces any employee in the exercise of the right
accorded by the Federal Service Labor-Management Relations Statute to
form, join, or assist any labor organization, or to refrain from any
such activity, freely and without fear of penalty or reprisal.
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.
. . . (Agency/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, Region Six, Federal Labor Relations Authority whose
address is: P.O. Box 2640, Dallas, Texas 75221 and whose telephone
number is: (214) 767-4996.
31 FLRA-ALJ; Case No. 6-CA-20356 August 11, 1983
UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
AUSTIN SERVICE CENTER, Respondent, and NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 72, Charging Party
Before: GARVIN LEE OLIVER, Administrative Law Judge
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Six, Federal Labor Relations Authority,
Dallas, Texas against the United States Department of the Treasury,
Internal Revenue Service and United States Department of the Treasury,
Internal Revenue Service, Austin Service Center (Respondent or IRS),
based on a charge filed by the National Treasury Employees Union and
National Treasury Employees Union, Chapter 72 (Charging Party, Union or
NTEU).
The complaint alleged, in substance, that Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (the Statute) by its failure and refusal
to bargain in good faith with the Union by unilaterally changing
existing terms and conditions of employment. The complaint alleged that
Respondent implemented a minimum dress standard at the Austin Service
Center without affording the Union an opportunity to bargain over said
change. Respondent's answer denied any violation of the Statute.
A hearing was held in Austin, Texas. The Respondent, Charging Party,
and the General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Each of the
parties filed a helpful brief, and many of the proposed findings have
been adopted in whole or in substance where found supported by the
record as a whole. Based on the entire record, /1/ including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendations.
1. At all times material, the National Treasury Employees Union
(NTEU) and Chapter 72 are and have been labor organizations within the
meaning of Section 7103(a)(4) of the Statute. At all times material,
IRS has recognized NTEU as the exclusive representative for employees in
an appropriate bargaining unit including employees of the Austin Service
Center. IRS and NTEU have been parties to a collective bargaining
agreement covering employees in the unit effective January 26, 1981 for
an initial term of 4 years. At all times material, Chapter 72 has been
the local representative of the Union at the Austin Service Center for
the purposes of collective bargaining, representation of employees in
the unit, and administration of the collective bargaining agreement.
2. At all times material, the United States Department of the
Treasury, Internal Revenue Service, and the United States Department of
the Treasury, Internal Revenue Service, Austin Service Center
(hereinafter jointly called Respondent, or separately called IRS and the
Austin Service Center) has been an agency within the meaning of Section
7103(a)(3) of the Statute.
3. On July 27, 1982 a memorandum was issued from the office of
Carolyn Leonard, Director, Austin Service Center, to all managers at the
Center. The memorandum provided as follows:
All managers should meet with their employees on July 28 and 29
to communicate the following minimum standards of dress to their
employees. The NTEU President or Chief Steward must be informed
of the meeting and the Union invited to attend. The Union has
already been informed of the fact that these meetings are being
held and what the managers will cover.
Managers should relay the following information in the
meetings:
It is essential if we are to maintain a business-like
atmosphere that all employees conduct themselves in a
business-like manner; this includes their appearance. It is
particularly important since the Center is now open for public
tours that we consistently apply the following minimum standard of
dress beginning August 2, 1982:
No swimming apparel
No shorts or cut-offs
No bare feet
No warm-up/jogging suits
No bare midriff
4. Upon learning of the memorandum from employees, the Union
immediately requested to negotiate concerning the minimum dress
standard. Respondent refused, taking the position that it "is merely
re-emphasizing the existing standards of appearance now contained in
Section 228.2 of the Handbook of Employee Responsibilities. No change
in the employees' conditions of employment are being implemented."
(General Counsel's Ex. 4). Section 228.2 provided as follows:
Courtesy, Fairness, Impartiality and Appearance
Employees are expected to conduct themselves in their official
relations with the public in a manner which will enhance public
respect for and confidence in the employee as a public servant and
the Service as a whole. Employees must be courteous,
businesslike, diplomatic and tactful. They must not only perform
their duties in a wholly impartial manner, but avoid any
appearance of acting otherwise.
They must be groomed in a manner fitting to the surroundings into
which their assignments take them. Any lack of these qualities
may be basis for disciplinary or other corrective action.
(General Counsel's Ex. 9).
5. The Union disagreed with management's position. It contended
that no specific items were listed in the Handbook, or had otherwise
been enforced for a substantial period of time. The Union contended
that the memorandum was a change from past practice, and that the issue
of minimum dress standards was clearly negotiable. (General Counsel's
Ex. 7).
6. Managers at the Center met with employees on July 28 and 29, 1982
to communicate the contents of the minimum dress standard memorandum
which became effective August 2, 1982. The Union was informed by
Respondent and participated in these meetings. At these meetings, the
Union took the position that it was not opposed to a dress code per se,
but believed the law should be followed in its implementation, and the
Union was entitled to negotiate over the dress code. (Tr. 27, 28, 51).
7. Respondent did not negotiate with the Union over the "Minimum
Dress Standards." (Tr. 51).
8. Prior to the adoption of the "Minimum Dress Standards," no
written dress code, minimum dress standard, or other policy, rule or
prohibition regarding dress or grooming existed at the Austin Service
Center for the last 10 years other than that contained in the
above-noted Internal Revenue Manual (IRM) Handbook of Employee
Responsibilities and Conduct. (Tr. 28-29, 33-34, 44, 52, 66, 75, 85,
96). About 10 years earlier, men had been required to wear ties, and
women had been required to wear dresses. However, this dress code had
lapsed, and, for the past several years, employees at the Service Center
had worn what was casual and comfortable. (Tr. 143). Employee dress
problems, such as being dirty, or having bare feet and shorts with holes
in them, were dealt with by supervisors on one or two occasions by
informal counseling on a case-by-case basis. (Tr. 15, 77, 109, 122,
146). There is no evidence of more severe discipline being taken
concerning dress, such as written reprimands, prior to the adoption of
the "Minimum Dress Standards."
9. During the summer of 1982, specifically as of July 19, 1982,
there were 3,483 employees working at the Center. Of the 3,483
employees, 2,719 were on the day shift and 764 employees were on the
night shift. During the tax filing season between January and June of a
calendar year, between 4,200 - 4,500 employees work at the Center.
(Respondent's Ex. 1; Tr. 107-108).
10. Prior to the issuance of the "Minimum Dress Standards," shorts,
which are now prohibited under the standards, were worn by employees.
(Tr, 29, 34, 35, 39, 41, 52, 53, 55, 67, 68, 75-77, 80-82, 85, 88, 89,
90-91, 94-95, 105, 108, 130, 135, 156, 166, 169). One employee wore
shorts everyday for three summers until the dress code was implemented.
(Tr. 67).
11. There was a dispute as to the total number of employees who wore
shorts at the Center. Some witnesses for the General Counsel and
Charging Party testified that up to 225 employees wore shorts. (Tr. 38,
95). Respondent's consolidated investigation revealed approximately 54
employees in shorts. (Tr 105). I conclude from all the testimony that
for several years it was not unusual to see employees wearing shorts at
the Center on both the day and night shifts.
12. Prior to the issuance of the "Minimum Dress Standards" other
items (i.e., items other than shorts), which are now prohibited by the
dress standards, were worn by employees very infrequently, if at all,
and without Respondent's knowledge and consent. It would have been
considered unusual to see an employee wearing such an item.
13. Employees have been prohibited from wearing the items listed in
the "Minimum Dress Standards" since its implementation and wearing any
of the items may result in discipline. (Tr. 28, 46-47, 55, 68, 91-92).
Since the standards were implemented, employees have been sent home to
change clothes and at least four employees have been disciplined with
written reprimands for wearing shorts in violation of the "Minimum Dress
Standards." (Tr. 28, 78, 90-92). There has been inconsistent
application of the standard by some managers and some confusion over
what is permitted. Some managers counseled employees for wearing gaucho
pants or culottes which the employees thought complied with the "no
shorts" standard. (Tr. 92).
14. The mission of the IRS is to collect taxes. Most of the taxes
are collected as a result of voluntary compliance by the public. A good
opinion of the IRS by the public is important to the success of the
voluntary tax system. The way employees are dressed helps form the
public's opinion of IRS. (Tr. 134).
15. The Austin Service Center has more casual dress than the Austin
District IRS Office where taxpayers go for assistance. (Tr 109). Male
managers at the Service Center, including higher level managers
immediately below the director, do not necessarily wear coat and tie
during the summer months. (Tr. 127, 144-145). One of the reasons the
dress at the Service Center is more casual is because employees do not
have daily contact with the public. (Tr. 10, 88). Entry into the
Austin Service Center is restricted to authorized personnel.
Individuals must have security badges to enter, there are guards at the
doors, and taxpayers who come to the Service Center for tax assistance
are directed to the IRS office downtown. (Tr. 10-11).
16. The Austin Service Center does not have the usual business
office environment. As noted, entry is restricted to authorized
personnel.
The majority of the Service Center offices consist of an open-office
landscape. One large room contains approximately 1,000 employees. (Tr.
11-12). The average employee is a GS-4 and is evaluated on the quantity
of documents he or she processes. (Tr. 11, 49). There are a number of
shifts. (Tr. 9). Several of the General Counsel's witnesses
characterized the atmosphere as that of a "factory." (Tr. 41).
Respondent's witnesses took exception to this characterization on the
basis that most employees working in the large open-office landscape sit
at desks or computers and use customary office-type equipment. (Tr.
117, 135). The offices are air-conditioned in the summer and the
temperatures do not generally become uncomfortably high.
17. Foreign tax officials, officials from other government agencies,
and IRS officials visit the Center. (Tr. 134, 140.) Television crews
and other persons from the media visit the Center around the end of each
tax filing season to do stories. (Tr. 147). Friends and relatives of
IRS employees who meet the employees at the Center also have an
opportunity to observe the attire worn by IRS employees as they arrive
and depart the Center. (Tr. 134). The Austin Service Center is not
open for tours by individual taxpayers, but, since the fall of 1981,
periodic group tours have increased at the Center. (Tr. 133-134,
139-140). The Director has received no direct complaints from the
public concerning employee dress, but once received a report that during
one tour an individual expressed surprise to a manager about the dress
of an employee. (Tr. 135).
The General Counsel and the Charging Party contend that Respondent
violated sections 7116(a)(1) and (5) of the Statute by unilaterally
changing an established past practice in the working conditions of unit
employees by implementing the minimum dress standard.
Respondent asserts (1) that it elected not to negotiate the minimum
dress standard memorandum under section 7106(b)(1) as involving its
right to determine "the method and means of performing work;" (2) that
the subject of the complaint involves the interpretation and application
of a section of the Internal Revenue Manual and, therefore, the Union
should have filed a grievance under the parties' contract; (3) that
there was no change in any condition of employment, no past practice,
and thus no duty to negotiate; and (4) if in fact there was a change
made from a past practice, the change was so insignificant that it has
no substantial impact on the working conditions of the employees and,
therefore, there was no duty on management's part to negotiate with the
Union.
Respondent asserts that one of the "means" of performing its work of
collecting taxes is to have its employees dress appropriately. It
argues that appropriate dress causes taxpayers to have a good opinion of
IRS personnel and to pay taxes voluntarily. Therefore, Respondent urges
that it was privileged under section 7106(b)(1) to elect not to
negotiate the minimum dress standards.
The dress of the unit employees in question is not directly and
integrally related to the accomplishment of the mission of the agency,
i.e., the collection of taxes. See American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 2 FLRA 603 (1980) at 618-619. The work of these
employees does not involve daily contact with the public. Compare
National Treasury Employees Union and U.S. Customs Service, Region VIII,
San Francisco, California, 2 FLRA 254 (1979). There is no close
functional relationship between the employees' dress at the Austin
Service Center and the agency's objective. Compare National Treasury
Employees Union and U.S. Customs Service, Washington, D.C., 8 FLRA No. 1
(1982) (Union proposal 1 -- wearing of a hat enables the public to
readily identify a law enforcement officer); American Federation of
Government Employees, AFL-CIO, National Immigration & Naturalization
Service Council and U.S. Department of Justice, Immigration &
Naturalization Service, 8 FLRA No. 75 (1982) (Union proposal 3 --
grooming standard permits ready identification of uniformed officers by
public); Iowa National Guard and National Guard Bureau, 8 FLRA No. 101
(1982) (requirement for National Guard technicians to wear military
uniform during a military mission outside the continental United States
was a means by which an agency operation was conducted). Rather, such
dress relates principally to matters affecting working conditions of
employees. Thus, the minimum dress standard is within the duty to
bargain.
Respondent's contention that the dispute involves merely a difference
of opinion concerning the interpretation and application of an Internal
Revenue Manual rule, and, therefore, should be resolved under the
negotiated grievance procedure rather than as an unfair labor practice
is rejected. The dispute does not involve essentially an interpretation
of the manual, but rather whether Respondent has engaged in an unfair
labor practice by making a unilateral change in past practices. The
unilateral change of an established past practice involving a condition
of employment constitutes a violation of section 7116(a)(1) and (5) of
the Statute irrespective of whether the change might also constitute a
breach of the parties' agreement. Department of Defense Dependents
Schools, 12 FLRA No. 12(1983). Cf. Internal Revenue Service and
Brookhaven Service Center, 6 FLRA No. 127 (1981).
In order to constitute the establishment by practice of a term and
condition of employment the practice must be consistently exercised for
an extended period of time with the agency's knowledge and express or
implied consent. Internal Revenue Service and Brookhaven Service
Center, 6 FLRA No. 127 (1981). Implied consent may be shown where a
practice is consistently followed by both parties, or followed by one
party and not challenged by the other knowledgeable party over a
substantially long duration.
Ibid; Army and Air Force Exchange Service (AAFES), Fort Carson,
Colorado, 10 FLRA No. 45 (1982); United States Department of Justice,
United States Immigration and Naturalization Service, 9 FLRA No. 36
(1982).
Based upon the above findings and the entire record, I conclude under
this criteria that a preponderance of the evidence does not establish
the existence of a past practice throughout the Service Center of
wearing swimming apparel, warm up/jogging suits, or having bare feet or
bare midriffs. Thus, the minimum dress standard did not change existing
conditions of employment in this regard.
The preponderance of the evidence does establish that the minimum
dress standard changed a past practice rising to the level of a
condition of employment by prohibiting unit employees from wearing
shorts to work. The record clearly establishes that, prior to August 2,
1982, there had not been a dress code at the Austin Service Center for a
number of years. The manual for all IRS employees did not include a
specific dress code and made no mention of specific items of
unacceptable clothing in an environment such as the Austin Service
Center, which is not a typical white-collar business establishment. As
a result, employees on both day and night shifts wore shorts to work for
a number of years. Although not all employees, or even a majority, wore
shorts, the evidence reflects that it was not unusual to see bargaining
unit employees wearing shorts. There were such sufficient numbers that
a reasonable person would recognize it as a consistent pattern
suggesting reoccurrence based on design as distinguished from isolated
incidents suggesting reoccurrence based on luck or one-time affairs.
Social Security Administration, Mid-American Service Center, Kansas
City, Missouri, 9 FLRA No. 33 (1982). Further, shorts were worn in the
presence of supervisors and, for the most part, employees were neither
challenged nor rebuked. This consistent pattern of behavior, exercised
over a long period of time, demonstrates that Respondent impliedly
consented to such conduct. Under these circumstances, the wearing of
shorts ripened into an established condition of employment.
Respondent further defends its actions by claiming that there was no
"substantial" impact on the working conditions of bargaining unit
employees as a result of implementation of the minimum dress standard.
"Substantial impact" or "reasonably foreseeable substantial impact" is
the test applied in cases where the issue is whether the union is
entitled to bargain over impact and implementation. See Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region, 5 FLRA No. 45 (1981); Department of Health and
Human Services, Social Security Administration, Field Assessment Office,
Atlanta, Georgia, 11 FLRA No. 78 (1983); Internal Revenue Service and
Brookhaven Service Center, 12 FLRA No. 7 (1983). It is not applicable
here where the issue is whether the Union is entitled to bargain over
the substance of a change. In any event, the minimum dress standard
insofar as it prohibited the wearing of shorts was a substantial change
in working conditions.
There was now a specific minimum dress code instead of broad general
criteria as before. Employees lost the option of wearing shorts to work
and, for the first time, were subject to discipline for doing so. There
was also confusion as to the types of clothing prohibited by the "no
shorts" standard.
It is concluded that Respondent violated sections 7116(a)(1) and (5)
of the Statute by unilaterally changing existing conditions of
employment by implementing a minimum dress standard prohibiting the
wearing of shorts without affording the Union an opportunity to bargain
over such change. A status quo ante remedy is appropriate where
Respondent failed to meet its duty to bargain under the Statute with
NTEU concerning the decision to make a change, and it will effectuate
the purposes and policies of the Statute. Cf. Internal Revenue Service,
Los Angeles District, 10 FLRA No. 107 (1982); Internal Revenue Service,
Western Region, San Francisco, California, 11 FLRA No. 112 (1983);
Social Security Administration, 11 FLRA No. 76(1983).
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following 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 order that the United States Department of the
Treasury, Internal Revenue Service and United States Department of the
Treasury, Internal Revenue Service, Austin Service Center shall:
1. Cease and desist from:
(a) Prohibiting bargaining unit employees from wearing shorts
at the Austin Service Center or otherwise changing existing terms
and conditions of employment with respect to dress standards
without first notifying the National Treasury Employees Union
(NTEU) and NTEU Chapter 72, the exclusive bargaining
representative of its employees, and affording such representative
the opportunity to bargain, upon request, to the extent consonant
with law.
(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 effectuate the
purposes and policies of the Statute.
(a) Rescind the minimum dress standard made effective August 2,
1982 to the extent such standard prohibited unit employees from
wearing shorts at the Austin Service Center.
(b) Rescind and remove or expunge from its files disciplinary
actions issued to bargaining unit employees as a result of the
implementation of the minimum dress standard prohibiting the
wearing of shorts at the Austin Service Center.
(c) Notify the National Treasury Employees Union (NTEU) and
NTEU, Chapter 72, the exclusive bargaining representative of its
employees, of any proposed change in existing terms and conditions
of employment with respect to dress standards and, upon request,
bargain in good faith to the full extent consonant with law.
(d) Post at its facilities at the Austin Service Center 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 Director, Austin Service Center, and shall be posted
and maintained by her for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The Director
shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
(e) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Region Six, Federal Labor Relations Authority, Dallas, Texas, in
writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
/1/ Counsel for the Charging Party moved to strike a paragraph and an
attachment to Respondent's brief. Counsel for the General Counsel
supported the motion. The motion is denied. The information was not in
existence at the time of the hearing, is relevant only to the issue of
remedy, and has been considered only in connection with that issue.
Ronald F. Hood, Esquire, for the Respondent
Anne Ellzey, Esquire, for the Charging Party
Susan E. Jelen, Esquire, for the General Counsel, FLRA
WE WILL NOT prohibit bargaining unit employees from wearing shorts at
the Austin Service Center or otherwise change existing terms and
conditions of employment with respect to dress standards without first
notifying the National Treasury Employees Union (NTEU) and NTEU Chapter
72, the exclusive bargaining representative of our employees, and
affording such representative the opportunity to bargain, upon request,
to the extent consonant with law.
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 rescind the minimum dress standard made effective August 2,
1982 to the extent such standard prohibited unit employees from wearing
shorts at the Austin Service Center.
WE WILL rescind and remove or expunge from our files disciplinary
actions issued to bargaining unit employees as a result of the
implementation of the minimum dress standard prohibiting the wearing of
shorts at the Austin Service Center.
WE WILL notify the National Treasury Employees Union (NTEU) and NTEU,
Chapter 72, the exclusive bargaining representative of our employees, of
any proposed change in existing terms and conditions of employment with
respect to dress standards and, upon request, bargain in good faith to
the full extent consonant with law.
. . . (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, Region Six, Federal Labor Relations Authority whose
address is: P.O. Box 2640, Dallas, Texas 75221 and whose telephone
number is: (214) 767-4996.
31 FLRA-ALJ; Case No. 5-CA-30042 August 18, 1983
VETERANS ADMINISTRATION, WASHINGTON, D.C. AND VETERANS ADMINISTRATION
MEDICAL CENTER, CINCINNATI, OHIO, Respondent, and AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2031, AFL-CIO, Charging Party
Before: SALVATORE J. ARRIGO, Administrative Law Judge
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.
Upon an unfair labor practice charge filed by American Federation of
Government Employees, Local 2031, AFL-CIO on November 5, 1982 against
Veterans Administration, Washington, D.C. and Veterans Administration
Medical Center, Cincinnati, Ohio, the General Counsel of the Authority,
by the Regional Director for Region V, issued a Complaint and Notice of
Hearing on December 17, 1982.
The Complaint alleged that since on or about November 1, 1982 Respondent
failed to bargain in good faith with the Union by unilaterally changing
a past practice by denying the Union's request for official time while
performing representational activities.
A hearing on the Complaint was conducted on February 16, 1983 at
which time all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent and the General Counsel and
have been carefully considered.
Upon the entire record in this matter, my observations of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
The Veterans Administration Medical Center in Cincinnati, Ohio
(sometimes the Medical Center herein) and the Veterans Administration
Outpatient Clinic in Columbus, Ohio (sometimes the Outpatient Clinic
herein) are separate and distinct facilities within the Veterans
Administration, each having its own Director, organizational makeup,
budget and mission. On February 28, 1980, pursuant to consolidation
proceedings, the American Federation of Government Employees, AFL-CIO
(AFGE) was certified as the exclusive collective bargaining
representative for various nonprofessional employees, at numerous
locations nationwide, including the nonprofessional employees located in
Respondent's Cincinnati, Ohio Medical Center. In October 1980 AFGE was
certified as the exclusive bargaining representative for various
nonprofessional employees located at Respondent's Columbus, Ohio
Outpatient Clinic and the employees thus became a part of the
consolidated nationwide unit mentioned above. Prior to the
consolidation and thereafter employees at the Medical Center were
represented by AFGE Local 2031. After the AFGE certification at the
Outpatient Clinic in October 1980, Local 2031 represented the employees
at the Columbus, Ohio location as well. By letter dated October 22,
1980 from an AFGE National Vice President, the Personnel Office at the
Outpatient Clinic was notified that Outpatient Clinic employees would be
represented by Lonnie Carter and Robert Barker, Local 2031 President and
Vice President respectively, both employees of the Cincinnati Medical
Center.
From time to time Local 2031 officers traveled from Cincinnati to
Columbus to service employees at the Columbus Outpatient Clinic. Thus,
various Local 2301 officers traveled from Cincinnati to Columbus to
negotiate with Columbus Outpatient Clinic management in 1981 concerning
matters such as station policies, committee structures and union dues
deductions. Thereafter, various Local 2031 officers traveled from
Cincinnati to Columbus on three separate occasions in 1982 for which the
representatives, as employees of the Cincinnati Medical Center, received
"official time" pay for the time the individuals spent on
representational functions in Columbus.
In order to obtain official time for such representational functions in
Columbus. In order to obtain official time for such representational
activities, Local 2031 President Carter would contact appropriate
Columbus Outpatient Clinic management representatives and indicate the
matters to be covered and arrangements for meetings and discussions
would be made. However, authorization for official time for the time
spent in representational duties during the trips had to be requested
from and granted by appropriate Cincinnati Medical Center officials.
On February 11, 1982 Local 2031 President Carter went from Cincinnati
to Columbus for representational reasons. In a response to President
Carter's request for official time, Labor Relations Officer F. J.
Wyborski, on February 19, 1982, stated official time was being granted
in accordance with a Interim Memorandum of Agreement between AFGE and
the Veterans Administration executed in April 1980 to be effective until
such time as a Master Agreement was executed by the parties. In his
letter to Carter, Wyborski granted Carter 4 hours of official time " . .
. in conjunction with presenting and processing the grievance. . . . "
The letter indicated that the time was being granted under Appendix A,
section 5 of the Interim Agreement which provides, in relevant part:
"Reasonable time during working hours will be allowed for employees and
Union representatives to present and process grievances."
Official time was subsequently granted to Local 2031 representatives
from Cincinnati for a similar visit to Columbus to perform
representational activities on August 12, 1982. Receiving official time
were President Carter, Vice President Kathryn Hunter and
Secretary/Treasurer Brenda Smith.
On September 1, 1982 President Carter made a request for a government
vehicle and travel and per diem expenses in connection with a planned
trip to Columbus to engage in representational activities on September
10. Assistant Chief of Personnel Service Sidney Stell, as Acting Labor
Relations Officer at the Medical Center, responded to Carter's request
in a letter dated September 3, 1982, stating, inter alia:
"Article 9, Section 10 of the Master Agreement does not state
that union officials will apprise management that they are going
on representational functions. However, Article 8, Section 5,
states that official time for local union officers and/or stewards
will be a proper subject for local supplemental bargaining.
Therefore, we will continue the past practice relating to the
Columbus Outpatient Clinic.
"Official time will be granted only for the time spent while
actually representing employees and meeting with management
officials at the Columbus Outpatient Clinic. This does not
include travel time. Annual leave and/or leave without pay must
be requested and approved for travel time.
"Additionally, your request for the use of a government vehicle
is denied. Transportation authorization is determined to be
inappropriate for this type of representational activity." /1/
On September 9, 1982 President Carter and Vice Presidents Hunter and
Robert Barker went from Cincinnati to Columbus. The Union officials
requested that each receive 3 hours of official time for time spent on
representational activities at Columbus. However the 3 hours official
time was not reflected on the Union officers' time cards and, a few days
after the Columbus visit, Vice President Barker questioned the
Cincinnati Medical Center Chief of Personnel Services about the problem.
Wyborski indicated he'd look into the matter and, a couple days later
Wyborski and Assistant Chief Stell met with Barker to discuss the
question. According to Wyborski's testimony, Barker asked when the
hours problem would be "straightened out." Wyborski replied that they
had looked into the matter and they were considering not providing
official time for the trip. Barker protested and Wyborski responded
that 3 hours official time for the trip on September 9 would be granted
because they had "made that commitment in the past." However, Wyborski
added, in the future official time for such activities would not be
provided because of the new Master Agreement. /2/ Wyborski could not
recall Barker giving any reply. Wyborski also gave a version of this
meeting wherein he testified during the hearing on two occasions that
when he told Barker official time would be provided, he also advised
that such grants would be "inappropriate" in the future, with no further
explanation given by Wyborski until re-examined on the matter.
Wyborski testified that Respondent's refusal to authorize official
time herein was based on his interpretation of the new Master Agreement.
In Wyborski's view the Master Agreement made existing agreements
inoperative, and since the Master Agreement indicated that granting
official for purposes such as herein was an item subject to negotiations
between the parties, a new local supplemental agreement would have to be
negotiated before official time could be granted.
According to Barker, during the meeting with Wyborski and Stell,
which Barker initiated because he had not heard from Respondent,
Wyborski initially indicated that the Union officers might not receive
the 3 hours official time for the latest Columbus trip. However, after
Barker got "upset" over Wyborski's comment, Wyborski stated that he
received verification of the Union Officers' activities in Columbus and
they would receive the 3 hours official time claimed. Barker
specifically denied that Wyborski told him there was going to be a
change in how such matters would be handled in the future due to
provisions contained in the new Master Agreement.
I credit Barker's version of what occurred at this meeting. In
addition to basing this finding on demeanor, I note particularly that
Assistant Chief of Personnel Services Stell was present at the meeting
and available to testify at the hearing /3/ but was not called by
Respondent to testify regarding this conversation after it was quite
evident that the testimony of Wyborski and Barker was in conflict. I
therefore infer that Stell was not called to testify by Respondent
because his testimony would not support Wyborski's version of the
conversation. In any event, Carter, Barker and Hunter received official
time for 3 hours spent in representational activities in Columbus on
September 9.
By letter dated October 29, 1982, Local 2031 President Carter request
official time for himself and three officers of Local 2031 for the
purpose of conducting representational activities at the Columbus
Outpatient Clinic on November 5. /4/ By letter dated November 1, 1982
Respondent, by Wyborski, replied to the request as follows:
"As previously stated, since the Columbus Outpatient Clinic is
a separate facility under the direction of its own management, and
since we do not have employees at that facility in the bargaining
unit of this Medical Center, your request for official time to
visit such facility is the capacity of labor representatives is
hereby denied." /5/
On November 8, 1982 the four Local 2031 officers, (Carter, Barker,
Hunter and Smith), traveled from Cincinnati to Columbus and engaged in
representational activities at the Outpatient Clinic from 8:00 a.m. to
4:20 p.m. The scheduled November 5 date for this trip had to be revised
since leave without pay arrangements had to be requested instead of
official time in light of Wyborski's position on the matter. No
subsequent request was made for granting official time for such purposes
nor was official time provided.
I conclude that prior to Respondent's November 1, 1982 refusal to
grant official time to Local 2031 officers, a practice had been
established whereby Local 2031 officers who were employees of the
Cincinnati Medical Center received official time for representational
activities performed at the Columbus Outpatient Clinic. I further
conclude that such activities are conditions of employment within the
meaning of the Statute.
In my view the practice was unaffected by the execution of the Master
Agreement on August 13, 1982. Indeed, after the Master Agreement become
effective, Assistant Chief of Personnel Services Stell indicated in his
letter to Local 2031 President Carter on September 3, 1982, supra, that
Respondent " . . . will continue the past practice relating to the
Columbus Outpatient Clinic" and would provide the Cincinnati employees
with official time. In addition, I see nothing in the terms of the
Master Agreement which constitutes a waiver of Local 2031 officers to
receive official time or abrogated the practice which arose prior
thereto. While the Master Agreement might well envision that local
negotiations would occur on local practices for obtaining official time,
and those negotiations might well result in new ground rules for
obtaining official time, the Master Agreement clearly did not extinguish
all practices which were in existence at the time. Rather, if
Respondent wished to alter the practice at Cincinnati relative to
granting official time to its Medical Center employees for performing
representational activities at the Columbus facility, Respondent was
required to provide the Union reasonable notice and an opportunity to
bargain on the change.
Respondent contends that Local 2031, through Chief of Personnel
Services Wybroski's conversation with Local 2031 Vice President Barker
in mid-September 1982, provided notice to the Union that it was
discontinuing the existing practice on official time. I reject this
contention based upon my credibility findings, supra, and conclude
Respondent did not provide adequate notice of the intended change to
Local 2031. Even if I were to have found that Wyborski indicated to
Barker that future grants of official time would be "inappropriate",
such reference was, at best, vague and ambiguous. In order to
constitute adequate notices of a change in a working condition under the
Statute, such notice must be sufficiently clear to properly apprise a
representative that a right previously held was to be extinguished. /6/
No such specific notice was provided herein.
Moreover, Respondent's usual practice in changing practices involving
working conditions was to notify Local 2031's President in writing. In
the case herein, even assuming that Wybroski's vague, oral comment that
future grants of official time would not be forth coming or
"appropriate" should have alerted Vice President Barker that a change
was envisioned, since Local 2031 President Carter did not receive
written notice of an intention of change the practice as was customary,
the notice given to Local 2031 was not adequate in these circumstances.
/7/
Accordingly, I conclude that by its unilateral discontinuance of the
practice of granting official time to employees of the Cincinnati
Medical Center, who were officers of Local 2031, for representational
activities performed at the Columbus Outpatient Clinic and its failure
to provide official time for the November 8, 1982 trip, /8/ Respondent
violated section 7116(a)(1) and (5) of the Statute. In view of the
entire foregoing I recommend the Authority issue the following:
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Veterans Administration, Washington,
D.C. and Veterans Administration Medical Center, Cincinnati, Ohio shall:
1. Cease and desist from:
(a) Changing practices regarding granting official time to
employees of the Cincinnati Medical Center who are officers of the
American Federation of Government Employees, Local 2031, AFL-CIO,
the employees exclusive collective bargaining representative, for
representational activities performed at the Veterans
Administration Columbus, Ohio Outpatient Clinic without first
affording the Union notice and an opportunity to bargain
concerning any proposed change in such practice.
(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 effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the change in practice regarding granting official
time to employees of the Cincinnati Medical Center who are
officers of the American Federation of Government Employees, Local
2031, AFL-CIO for representational activities performed at the
Columbus, Ohio Outpatient Clinic.
(b) Make whole Lonnie Carter, Robert Barker, Kathryn Hunter and
Brenda Smith for the refusal to provide them with 8 hours official
time for time spent in representational activities in the Columbus
Outpatient Clinic on November 8, 1982 by payment, restoration of
leave, or whatever means may be appropriate for each employee.
(c) Post at its Cincinnati, Ohio Medical Center and Columbus,
Ohio Outpatient Clinic 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 Director of the
Cincinnati, Ohio Medical Center and shall be posted and maintained
by the Respondent for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Respondent
shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, 175 W Jackson Blvd., Suite 1359-A, Chicago,
Illinois.
/1/ A Master Agreement between the Veterans Administration and AFGE,
which covered all employees in the nationwide unit, including employees
in Cincinnati and Columbus, was executed and became effective on August
13, 1982.
/2/ Respondent's usual procedure when changing a practice affecting a
working condition was to notify the Union's President in writing and
affording the Union an opportunity to negotiate on the matter.
/3/ Stell was called as a witness for Respondent and testified
regarding his September 3, 1982 letter to the Union, supra.
/4/ Official time was requested for President Carter, Vice Presidents
Barker and Hunter and Secretary/Treasurer Smith.
/5/ As indicated above, I do not find that Wyborski had "previously
stated" that the prior practice of granting official time for
representational activities at the Columbus Outpatient Clinic was to be
changed. I find the phrase "As previously stated" in the November 1
letter to be merely a self-serving comment.
/6/ See Department of the Army, Harry Diamond Laboratories, Adelphi,
Maryland, 9 FLRA No. 66 (1982).
/7/ See generally United States Air Force, Air Force Logistics
Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA
512 (1980), enforcement denied United States Air Force, et al, 681 F.2d
466 (6th Cir. 1982); and Department of Health and Human Services,
Social Security Administration, Field Assessment Office, Atlanta,
Georgia, 11 FLRA No. 78 (1983).
/8/ In view of Wyborski's November 1 letter, supra, I conclude it
would have been futile for the employees to request official time for
the rescheduled trip.
Russell C. Henry, Esq., for the Respondent
Lonnie Carter, for the Charging Party
Judith A. Ramsey, Esq., for the General Counsel
WE WILL NOT change practices regarding granting official time to
employees of the Cincinnati Medical Center who are officers of the
American Federation of Government Employees, Local 2031, AFL-CIO, the
employees exclusive collective bargaining representative, for
representational activities performed at the Veterans Administration
Columbus, Ohio Outpatient Clinic without first affording the Union
notice and an opportunity to bargain concerning any proposed change in
such practice.
WE WILL NOT 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 rescind the change in practice regarding granting official
time to employees of the Cincinnati Medical Center who are officers of
the American Federation of Government Employees, Local 2031, AFL-CIO for
representational activities performed at the Columbus, Ohio Outpatient
Clinic.
WE WILL make whole Lonnie Carter, Robert Barker, Kathryn Hunter and
Brenda Smith for the refusal to provide them with 8 hours official time
for time spent in representational activities in the Columbus Outpatient
Clinic on November 8, 1982 by payment, restoration of leave, or whatever
means may be appropriate for each employee.
. . . (Agency/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, Region V, Federal Labor Relations Authority whose
address is: 175 W Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604;
and whose telephone number is: (312) 353-6306.
30 FLRA-ALJ; Case Nos. 9-CA-20264, 9-CA-20291 June 29, 1983
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, Respondent, and AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging Party
Before: GARVIN LEE OLIVER, Administrative Law Judge
This decision concerns a consolidated unfair labor practice complaint
issued by the Regional Director, Region Nine, Federal Labor Relations
Authority, San Francisco, California against the Department of Health
and Human Services, Social Security Administration, Baltimore, Maryland
(Respondent), based on charges 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) and
(5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
7101 et seq. (the Statute). Respondent's answer denied that it had
engaged in any unfair labor practice.
With respect to Case No. 9-CA-20264, the consolidated complaint
alleged, in substance, that, during the period on or about March 31,
1982 through April 2, 1982, Respondent by District manager Manjarrez
refused to bargain with Michael A. Teefy, the Union's designated
representative, concerning the impact and implementation of a proposed
workload reassignment of Title 16 Claims Representatives, a matter
substantially affecting the conditions of employment of unit employees.
The General Counsel contended that Respondent avoided Mr. Teefy, the
Union's designated representative, and waited until he had left the
office to provide notice to a newly-designated Union steward.
Respondent contends that it did not avoid any Union representative;
that it gave notice to the Union steward and, subsequently, to Mr.
Teefy; and afforded ample opportunity for impact bargaining.
With respect to Case No. 9-CA-20291, the consolidated complaint
alleged, in substance, that Respondent changed (1) the assignments of
bargaining unit employees for contact station work, and (2) the
procedures for documenting and reporting claims deficiencies, without
providing the Union with notice and the opportunity to bargain over the
impact and implementation of such changes. Respondent contended that
neither of these matters involved a substantial change. Respondent also
claimed that the form used for documenting claims deficiencies had been
negotiated with the Union.
A hearing was held in Seattle, 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. The proposed
findings have been adopted in substance where found supported by the
record as a whole. 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.
I. Case No. 9-CA-20264
A. Findings of Fact
Shortly after the election during which the Union was selected as the
exclusive representative for the employees in Respondent's Yakima
District, Michael Teefy, then the Union's regional vice-president for
the Seattle region, was appointed as union representative for the Yakima
District. District manager Richard Manjarrez was notified in February
1982 that Mr. Teefy, as unit representative, would be the person to
notify of any proposed change in working conditions or any other
labor-management matter. (General Counsel's Exh. 4).
Thereafter, Mr. Teefy arranged to go to Yakima during the week of
March 30, 1982 in order to act as the personal representative of an
employee on an equal employment opportunity matter. About a week before
he was to leave, Teefy spoke with Pam Smith, then Respondent's labor
relations representative in the region, about labor-management matters
then pending in Yakima.
There were several second step grievance presentations to be heard by
management, and the Union had outstanding requests to bargain over 1982
redeterminations and office policies. The term "redeterminations"
refers to the process in the Social Security Administration whereby
individuals receiving SSI (Title 16) benefits are reviewed to determine
if they continue to be eligible and whether they are being paid
correctly. Redeterminations are processed each year. Although some of
the preliminary forms may be prepared by other employees, the actual
redetermination, i.e. the adjudication, is performed by the claims
representative. By letter dated March 7, 1982, Teefy had requested to
bargain over the impact and implementation of changes in the 1982
redeterminations at Yakima. District manager Manjarrez had responded by
letter dated March 10 to Teefy's request, asking him to specify the
areas of the redetermination procedure he wished to bargain. Teefy
thereafter requested, but had not received certain information necessary
to prepare his bargaining proposals. (Tr. 86; Respondent's Exh. 8, 9).
Teefy indicated that he would handle all of these matters, as well as
the appointment of a local office steward, while he was in Yakima. (Tr.
83-85).
Teefy is employed by Respondent as a claims representative at its
Port Angeles branch office. Port Angeles, Washington is located
approximately six and one half hours by car from Yakima, Washington.
(Tr. 92). Mr. Teefy received official time for his trip to Yakima.
(Tr. 83).
Teefy was in the Yakima district office for four days, March 30
through April 2, 1982. (Tr. 85). On March 30, in the morning, he met
with District manager Manjarrez, Assistant District manager Gene Rinna
and Marie Johns, regarding the appointment of Ms. Johns as the office
steward. (Tr. 81; 98). At this meeting, Teefy distributed and
discussed a memorandum which he had prepared appointing Johns as steward
and outlining her duties and responsibilities. (Tr. 82-83). The
memorandum provided, in part, as follows:
This is to advise you that Marie A. Johns has been appointed as
Steward for the Yakima District. The steward is responsible for,
but not limited to, consultation, preparation and presentation of
grievances or complaints of district employees, polling employees
on changes in personnel policies, practices and/or conditions of
employment, and contacting and advising the Unit Representative on
issues of significant impact on bargaining unit employees.
The steward shall be given a reasonable amount of official time
to perform representational duties under the Act and agreements.
The steward does not have the authority to bargain on changes in
personnel policies, practices and/or conditions of employment
except when designated by the Regional Vice President, Executive
Council Representative or District Unit Representative.
All changes in personnel policies, practices and/or conditions
of employment shall continue to be submitted to the Unit
Representative with a copy to the steward.
(General Counsel's Exh. 5).
Following the meeting regarding Johns' appointment as office steward,
the oral presentations on the pending grievances were conducted. Later
that same afternoon, Teefy met with Manjarrez and Rinna concerning
redeterminations. Teefy reiterated his request for certain information.
Management indicated that they would try to gather the data and have it
to Teefy the following day. (Tr. 88).
Teefy returned to the office the following day, March 31. Most of
the day was spent with the EEO counselor, but, in the course of the day,
Teefy did speak with Kathy Mums, one of the operations supervisors, and
she was able to provide him with some of the information which he had
requested. (Tr. 88). Based upon the information he received, Teefy
prepared the Union's proposals on redeterminations which were presented
to management the following morning. (Tr. 89; General Counsel's Exh.
6).
Teefy, Johns, Manjarrez and Rinna met in Manjarrez's office at
approximately 9:00 a.m. on April 1. During this meeting, the Union
presented certain proposals which it had prepared on office policies, a
matter which was the subject of its March 7 request to bargain
(Respondent's Exh. 7; Tr. 100), and the remainder of the meeting was
spent reviewing the Union's proposals on redeterminations. (Tr. 90;
100-101). At approximately 1:45 p.m., the parties adjourned for lunch,
with the understanding that management would review the Union's
proposals and Teefy would return at 3:30 p.m. to resume the discussion.
(Tr. 90; 101). However, when Teefy returned, Gene Rinna informed him
that management had nothing for him at the time, but that he should
"return on Friday." (Tr. 91).
On Friday morning, April 2, Teefy returned to the Yakima district
office at approximately 8:30 a.m. No one in management was available,
and when Teefy finally located Rinna, he was informed that management
had meant that it would have its proposals "next Friday." (Tr. 91).
Teefy then left the Yakima office to return to Port Angeles. (Tr.
91-92).
Within 20 minutes after Teefy had departed, SSI operations supervisor
Larry Hilliard called Marie Johns into the private conference room.
Hilliard handed Johns a memorandum, dated March 31, 1982, "Subject:
Workload Reassignment." The memorandum set out new workload changes to
be effective on April 8, 1982 "(b)ecause of the decreased initial claims
workload . . . " The memorandum changed the work assignments of two
initial claims representatives and their claims development clerk. They
would also be assigned to post-entitlement work, involving somewhat
different forms, procedures, and a different portion of the claims
manual. /1/ A portion of post-entitlement work involves
redeterminations. Hilliard advised Johns, in effect, "This is what
we're going to do to move the redeterminations." Johns pointed out that
the memorandum contained a change in working conditions, since it
involved the assignment of post-entitlement work to initial claims Title
16 claims representatives. She stated that she was not responsible for
handling changes and asked Hilliard whether he intended to notify Teefy
of the change. Hilliard replied, "Probably." After Johns told Hilliard
that she wanted to make sure he was going to notify Teefy, Hilliard
stated, "I'll make sure Mike gets a copy." (Tr. 103-106; General
Counsel's Exh. 7).
Johns contacted Teefy on Saturday to advise him of what had occurred
following his departure from the Yakima district office and, at Teefy's
request, forwarded him a copy of the March 31 memo. Thereafter, Teefy
received a memorandum from District manager Manjarrez dated April 5,
1982. The memorandum enclosed a memorandum dated April 5, 1982 similar
to that given to Johns. The effective date of the workload reassignment
was changed from April 8, 1982 to April 15, 1982. The memorandum
stated, in part, as follows:
The attached is submitted for your review and comment. We
would appreciate receiving any comments you wish to make by April
12, 1982 as we plan to implement the change effective April 15,
1982.
If you wish to request bargaining on any element of the
attached change, please be specific as to what you wish to
bargain, identifying what impact you feel the implementation of
the change might have on bargaining unit employees and stating the
alternative procedure or policy that you propose.
(General Counsel's Exh. 8).
Also enclosed was a separate memorandum to Teefy from Manjarrez dated
April 5, 1982 advising Teefy that the procedure for processing the 1982
redeterminations had not changed, and management did not "deem it
necessary to bargain on this issue." (General Counsel's Exh. 9).
B. Discussion and Conclusions
The issue presented is whether Respondent's failure to provide the
Union's designated bargaining representative, Michael Teefy, with its
proposal to change the assignments of Title 16 claims representatives
while he was at the Yakima District Office and available for
face-to-face negotiations, and, instead, provided, said notice to the
office steward immediately following Teefy's departure from the office
and subsequently to Teefy by mail, constituted a refusal to bargain in
good faith in violation of section 7116(a)(1) and (5) of the Statute.
The General Counsel contends that Respondent, by such conduct,
refused to bargain in good faith, as it failed and refused to deal
directly and in a dignified manner /2/ with the Union's designated
representative, by attempting to bypass and avoid such representative,
and, thereby, also refused to meet at reasonable times and avoid
unnecessary delays. /3/ The General Counsel asserts that Respondent's
subsequent notice to Teefy by mail can in no way excuse its unlawful
conduct on March 31, April 1 and 2.
Respondent called no witnesses on this issue. It maintained that the
General Counsel had not proved a violation of the Statute by a
preponderance of the evidence. Respondent insists that the evidence
shows no avoidance of Teefy, but simply that it gave notice to the Union
steward and, subsequently, to Teefy. Respondent claims it, thereby,
afforded ample opportunity for impact bargaining.
I agree with Respondent that the General Counsel has not proved a
violation of the Statute by a preponderance of the evidence. Teefy was
at the Yakima office from March 30 through April 2 and in continual
contact with management regarding a number of labor-management matters,
including his request to bargain on the impact and implementation of the
1982 redeterminations. General Counsel points out that when supervisor
Hilliard gave steward Johns the March 31, 1982 memorandum on April 2,
1982, concerning workload reassignments, he remarked, "This is what
we're going to do to move the redeterminations." The March 31, 1982
memorandum concerning workload reassignments tangentially involved
redeterminations. However, the complaint does not allege, and the
General Counsel did not urge, that Respondent failed to bargain in good
faith on the matter of redeterminations. (See General Counsel's Exh.
1(i); Tr. 15, 17-18, 116-117, 177). The complaint deals strictly with
the failure to bargain in good faith concerning the impact and
implementation of the workload reassignment; that is, the avoidance or
attempted bypass of the designated representative, Teefy, concerning
this proposal.
The supervisor's memorandum was dated March 31, 1982. Therefore, the
General Counsel argues that the proposal existed for two days while
Teefy was in Yakima and was prepared to bargain on any subject. The
General Counsel maintains that the obvious "reasonable time" for
negotiations was while Teefy was in Yakima, ready and willing to
bargain. Although supervisor Hilliard's memorandum was dated March 31,
1982, there was not showing that Hilliard was present at any of the
meetings that Teefy had with management that week /4/ ; that he was
aware of Teefy's presence on the premises or his schedule; that he or
District manager Manjarrez was prepared to discuss and negotiate on the
change and deliberately attempted to avoid providing notice of the
proposed change until after Teefy had left the office. The date of the
supervisor's proposal, without more, is insufficient to establish that
Respondent engaged in "unnecessary delays."
Supervisor Hilliard's contact with steward Johns on April 2, 1982,
after Teefy had left, did not, under all the circumstances, constitute a
refusal to provide notice to the properly designated representative.
The Union had requested on March 30, 1982 that Teefy be notified of all
changes and that the steward be provided with a copy of all such
notices. Management had been advised that the steward was also
responsible for "advising the unit representative on issues of
significant impact on bargaining unit employees." It was, therefore,
reasonable for supervisor Hilliard to handcarry a copy of the notice to
the local steward on Friday before it was mailed by the District manager
to Teefy the following Monday.
The steward was thus informed of the proposal and able to discuss it
with Teefy. Teefy's contact point with Respondent was apparently with
the District manager. While it would have been better practice for
management to have provided Teefy notice by mail or otherwise at the
same time as it was provided to the steward, there was no significant
delay (Friday to Monday) in providing notice to Teefy. The original
date for implementation of the change was postponed by the District
manager in apparent recognition of this delay in notifying the
designated representative. This gave the Union ample time to request
bargaining if it desired.
There is no evidence that supervisor Hilliard tried to negotiate with
the steward concerning the change. He gave her the notice and described
the change in a sentence. In response to the steward's inquiry, he
assured her that he would provide Teefy, the designated bargaining
representative, with a copy of the proposal.
The General Counsel argues that Teefy was faced with an additional
trip, if that were even possible; preparation and discussion were made
more difficult; and the entire bargaining process was delayed. This
may be true. However, in my view, the evidence is insufficient to find
that Respondent by its agent District manager Manjarrez refused to
negotiate on the change during the period March 31 through April 2, 1982
and engaged in an unfair labor practice by avoiding the designated
representative, Teefy, during this period, as alleged. No bargaining
was attempted with the steward, and Teefy was subsequently notified in a
reasonably prompt manner and afforded ample opportunity to respond to
the proposal.
II. Case No. 9-CA-20291
A. Assignment to Contact Stations
1. Findings of Fact
The Renton branch office maintains contact stations at Boeing plants
in Renton, Kent and Auburn and at the Auburn Public Library. These
contact stations are maintained in order to provide assistance to
individuals located in the service area without the necessity that they
travel to the branch office. (Tr. 126). The Auburn contact station
operates like a mini-office and during its hours of operation,
individuals can come in for general information regarding all Social
Security programs and to file claims for Title 2. (Tr. 46; 124-125).
The Auburn station is open twice monthly, from 9:30 a.m. until noon.
(Tr. 129; General Counsel's Exh. 3). The contact stations at the
Boeing plants were established to provide Boeing employees with
information and applications for Title 2 Social Security. (Tr. 46;
125). Generally, appointments are scheduled in advance at 15 minute
intervals. (Tr. 67). The Renton Boeing station operates once a month
from 1:00 - 3:00 p.m.; Auburn Boeing station, once a month from 1:30 -
3:00 p.m.; and Kent Boeing station, once a month from 9:30 a.m. until
noon.
(General Counsel's Exh. 3; Tr. 129).
Servicing contact stations is a duty normally assigned by Respondent
to a field representative position. (Tr. 46). A field representative
is, in essence, a traveling claims representative with additional public
relations duties. (Tr. 46, 128, 131). A claims representative normally
works in the office to receive social security claims from the public
and process them. (Tr. 121; Respondent's Exh. 1). The field
representative position is in the same job series, grade, and salary
structure (GS-10) as a claims representative. (Tr. 131, 132).
For quite a segment of time, the Renton office did not have a
permanent field representative. It chose to use claims representatives
to service the contact stations. The claims representative position
description provides, "Duties assigned may also be performed in contact
stations . . . or other locations as designated by supervisors."
(Respondent's Exh. 1).
From February 1978 to April 1980 work at the contact stations was
routinely assigned to claims representatives. (Tr. 123-125). Beginning
in April 1980 and continuing to the end of March 1982 four claims
representatives of the Renton branch office were detailed into the field
representative position for periods of six months at a time. (Tr. 133).
If the assigned claims representatives were on sick or annual leave,
other claims representatives were asked on a rotating basis to volunteer
or go cover the contact station for a particular day. (Tr. 124, 134).
During the fifteen month period from January 1981 to April 1982 other
claims representatives had to cover the contact stations on five or six
occasions. (Tr. 170, 172).
On April 5, 1982, Terry Temple, one of Respondent's Title 2
operations supervisors at the Renton branch office (Bellevue district),
approached Jackie Konschuh at her desk. Ms. Konschuh is a Title 2
claims representative at the Renton office. At this time, she also held
several Union positions, including vice-president for Social Security in
AFGE Local 1501 and executive council representative for AFGE's National
Council of Field Office Locals. (Tr. 43-44). Mr. Temple informed Ms.
Konschuh that, because the new field representative would not be
reporting as anticipated, it would be necessary to make arrangements to
cover the contact stations.
(Tr. 61-62). Konschuh asked him whether he was speaking with her as a
Union representative or as an employee. Temple asked whether she could
wear both hats, and Konschuh replied that if he were proposing a change
in working conditions, then he would have to give notice to the Union.
(Tr. 45-46). At this time, Jeff Saul was the unit representative
designated to receive notice of changes in working conditions in the
District. He could, and often did, delegate the authority to bargain
over such changes to Ms. Konschuh. (Tr. 44).
Temple explained that he anticipated that the field representative
position would be vacant until about June 1982. He indicated that he
was considering appointing one person, or possibly rotating it among the
claims representatives, and was willing to consider the alternatives
that Konschuh had. Konschuh stated that she did not want to offer
specific proposals, but would comment on any specific proposal he made.
She stated that if he were going to require rotation among the claims
representatives, that would be a change in working conditions, since it
would require them to leave the work station on a regular basis. Temple
indicated that he did not believe it amounted to a change, but would
check with management and get back to her. During this conversation,
Ms. Konschuh specifically volunteered to cover the April 8 contact
station assignment in order to permit management time to prepare and
present its proposal to the Union regarding the new assignments. Temple
accepted Konschuh's agreement to take the April 8 date, but did not
commit herself to offering proposals to the Union. (Tr. 47-48, 129-130;
175).
The following day, Temple handed Konschuh three memoranda and stated,
with respect to all three, "I talked to management about the changes and
our position is that they do not have any substantial impact and
therefore we're not required to give the Union advance notice or to
bargain on the impact." (Tr. 49). The contact station memorandum set
forth a mandatory schedule by which each of the four claims
representatives would cover the contact stations on certain dates during
the six week period from April 14 to May 27, 1982. The memorandum
pointed out, among other things, that it was necessary "to revert back
to our past procedure;" that the procedure was a temporary one until the
new field representative arrived; that it was anticipated a new field
representative would be on duty by June 1 or before, possibly before the
schedule expired; and that management would assure adequate time to
write up the claims taken. (General Counsel's Exh. 3).
Konschuh told Temple that she thought requiring employees to work
away from the office amounted to a change, particularly considering that
two of the affected Title 2 claims representatives did not regularly
drive to work. She also stated that, in the past, claims
representatives had covered contact stations only on a one-time,
voluntary basis, and not as a continuing assignment. (Tr. 49-50).
After presenting Ms. Konschuh with a copy of the memorandum, Mr.
Temple passed copies out to other members of the unit. (Tr. 51).
Each of the four claims representatives went to the contact stations
three or four times during the two month period. They reported to and
left the Renton office at their normal times. They traveled from the
Renton office to the contact stations by personal automobile and were
reimbursed at the accepted government rate. The Renton, Kent, and
Auburn stations were 2-3, 7-8, and approximately 15 miles away
respectively.
The work done by the claims representatives at the contact stations
was essentially the same as that they normally performed in the office.
They would not receive new work at the office while they were gone.
However, they took in more work at the contact stations and, on a "take
it and keep it" system, were responsible for processing it once back at
the office. (Tr. 66-67; 128-129). Timeliness of case processing is an
important element of the claims representative's appraisal. (Tr. 55).
The field representative vacancy was posted, a selection was made,
and the new field representative reported May 17, 1982 and covered the
contact stations during that week. The claims representatives again
covered the contact stations during the following week as the field
representative had leave scheduled. Since then, the contact stations
have been covered by the permanent field representative. (Tr. 134-135).
2. Discussion and Conclusions
The issues presented are (a) whether Respondent's April 6, 1982
memorandum temporarily assigning claims representatives to handle the
contact stations work constituted a change in conditions of employment;
(b) if so, whether the change had a substantial impact upon the affected
employees sufficient to trigger Respondent's obligation to bargain;
and, (c) if so, whether Respondent's contact with Ms. Konschuh
constituted sufficient notice to the Union.
a. The April 6, 1982 memorandum constituted a change in conditions
of employment. It assigned the claims representatives to cover the
contact stations on a regular basis for a six week period. That was a
change from the practice during the period from April 1980 through March
1982 when one claims representative were routinely assigned to work at
the contact stations. A practice which has ripened into a condition of
employment may not be changed unilaterally in reliance on a dormant
practice, policy, or regulation. Cf. National Labor Relations Board, 3
A/SLMR 88 (1973).
b. The April 6, 1982 assignment of claims representatives to cover
the contact stations had a substantial impact on unit employees
sufficient to trigger Respondent's obligation to bargain. It is only
necessary that substantial impact be reasonably foreseeable at the time
the change is made.
Department of Health and Human Services, Social Security Administration,
Field Assessment Office, Atlanta, Georgia, 11 FLRA No. 78 (1983);
Internal Revenue Service and Brooklyn Service Center, 212 FLRA No. 7
(1983). Although management "anticipated" that a new field
representative would be selected by June 1982, in fact the vacancy
announcement had not yet issued, and it would not have been unreasonable
for unit employees to have concerns that the assignment pattern would
continue beyond the May 27, 1982 date. Claims representatives took in
more cases at the contact stations than in the office, and, although
management stated that it would "assure adequate time" to write up the
claims taken, employees could also have had legitimate concerns about
how this would be done and the effect of the additional work on their
appraisals. Employees were required to travel-- not a regular or
routine part of their job-- and those employees who did not drive
regularly had to make special arrangements on the days they were
scheduled. Finally, the memorandum established a mandatory rotation
system, with specific dates, instead of seeking volunteers, in part, as
before. Employees would have reasonably foreseeable concerns as to how
the specific schedules would impact on leave, etc., and whether days
could be exchanged.
In light of the foregoing, Respondent had an obligation to provide
the Union with notice and an opportunity to bargain over the procedures
which management would use to implement the assignments and appropriate
arrangements for employees adversely affected.
c. Respondent's contact with Ms. Konschuh did not provide the Union
adequate notice and an opportunity to bargain. Ms. Konschuh was neither
the office steward nor the Union representative designated to receive
notice of changes of working conditions. Department of Health and Human
Services, Social Security Administration, Field Assessment Office,
Atlanta, Georgia, 11 FLRA No. 78 (1983) and cases in footnote 2, supra.
Even if she were, Respondent promised to get back to Konschuh concerning
its possible proposal to rotate the assignment among employees but, when
it did so, it specifically refused to bargain and proceeded to announce
the change to unit employees. Ibid; see also The Adjutant General's
Office, Puerto Rico Air National Guard, 3 FLRA No. 55 (1980).
Respondent does not provide notice and an opportunity to bargain in such
circumstances by casually expressing at some point a willingness to
consider alternatives. Department of the Air Force, Scott Air Force
Base, Illinois, 5 FLRA No. 2 (1981).
It is concluded that Respondent's failure and refusal to bargain with
the Union concerning the assignment of the Title 2 claims
representatives to perform contact stations work, a change in working
conditions announced to the employees by memorandum on April 6, 1982,
constituted an unfair labor practice in violation of section 7116(a)(1)
and (5) of the Statute, as alleged.
B. Changes In Procedures For Documenting and Reporting Claims
Deficiencies
1. Findings of Fact
On April 6, 1982 a memorandum was distributed to bargaining unit
employees concerning procedures for the distribution and processing of
claims taken by the field representative at the contact stations. It
provided, among other things, that claims brought in by the field
representative would be routed directly to the data review technician
(DRT) instead of to a claims representative for for review as formerly.
The technician would note any deficiencies found in any claim taken by
the field representative on an "optional review sheet" to be returned to
the operations supervisor. (General Counsel's Exh. 2). Preparation of
the "optional review sheet" by technicians had previously been optional
for all claims. DRT's could formerly use either the optional review
sheet, or note deficiencies on a control sheet, form 250. Both sheets
formerly remained with the file. (Tr. 21-22; 149-150). Now the DRT
was supposed to prepare a review sheet only on claims taken by the field
representatives. (Tr. 157-158).
The new procedure was adopted because a new field representative was
scheduled to report. Mr. Temple, the operations supervisor, wanted an
easy-to-read review sheet of deficiencies so he could informally discuss
with the field representative any deficiency found and, thereby, improve
the quality of the claims being submitted. The control sheet, which
stays with the file, could not be used for this purpose, because to do
so would delay the processing of the claim. (Tr. 154). The field
representative is only at the Renton office for brief periods of time.
(Tr. 34). Temple did not supervise the field representative or have
anything to do with his evaluation. (Tr. 154). He destroyed the review
sheet after his informal discussion of the claim with the field
representative. (Tr. 166).
The DRT has the responsibility of reviewing for defects all claims
taken by other employees. (Tr. 32, 151). The defects to be noted on
the review sheet were no different than those noted on the control
sheet, and it took less time to prepare. (Tr. 33, 155). Each DRT
processes about six to twelve claims each week brought in by the field
representative. (Tr. 27).
Supervisor Temple did not receive any review sheets from the DRT's
until October 1982. (Tr. 158). This indicated either that the field
representative was very good, or that compliance with the instruction
was lacking. (Tr. 36, 158). DRT Lambert only prepared one review
sheet. (Tr. 26, 36).
2. Discussion and Conclusions
The April 6, 1982 memorandum constituted a change in the procedures
for documenting and reporting claims deficiencies. However, the
principal issue is whether it had any substantial impact on unit
employees.
The General Counsel contends that it constituted a substantial change
for the data review technicians who prepared the form and more
importantly, the field representative against whom the information could
be used.
I agree with Respondent that a preponderance of the evidence does not
demonstrate a substantial change. The form is not used "against" the
field representative. It is used for informal discussion of claims with
the field representative, is destroyed after the discussion, and it is
not considered by those responsible for the field representative's
evaluation. As for the data review technicians, preparation of the form
did not substantially change their duties. The form contains the same
information as another form formerly prepared by the technicians in
these cases. There was no showing that it takes significantly more time
to prepare. Very few of the forms are, or have been, prepared.
It is recommended that this allegation be dismissed.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following 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 Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland shall:
1. Cease and desist from:
(a) Unilaterally changing the assignments of bargaining unit
employees for contact station work without first providing
appropriate prior notification to the American Federation of
Government Employees, AFL-CIO, the employees' exclusive bargaining
representative, and affording it an opportunity to bargain, upon
request, concerning the procedures to be observed in implementing
such change and appropriate arrangements for employees adversely
affected thereby.
(b) In any like to 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 appropriate prior notification to the American
Federation of Government Employees, AFL-CIO of any intended change
in the assignment of bargaining unit employees for contact station
work, or any other proposed change in conditions of employment,
and, upon request, bargain with such representative to the full
extent consonant with law.
(b) Post at its facilities at the Renton Branch Office 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
by him 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 by comply herewith.
It is further Ordered that the complaint in Case No. 9-CA-20264,
relating to the alleged refusal to bargain with the Union's designated
representative, and that portion of the complaint in Case No.
9-CA-20291, relating to an alleged unilateral change in the procedures
for documenting and reporting claims deficiencies be, and they hereby
are, DISMISSED.
/1/ There appears to be no serious dispute that the change involved a
substantial impact upon the affected employees, and I find that it did
have such an impact.
/2/ The collective bargaining relationship requires that each party
deal with each other directly and in a dignified manner. U.S. Air
Force, Air Force Logistics Center, 4 FLRA No. 70 (1980), enf. denied,
681 F.2d 466 (6th Cir. 1982); Norfolk Naval Shipyard, Portsmouth,
Virginia, 6 FLRA No. 22 (1981). It is within the discretion of a labor
organization to designate its own representatives when fulfilling
responsibilities under the Statute. American Federation of Government
Employees, AFL-CIO, 4 FLRA No. 39 (1980). An agency's refusal to deal
with the union's designated representative constitutes an attempt to
interfere with the union's internal affairs and a refusal to bargain in
violation of the Statute. Philadelphia Naval Shipyard, 4 FLRA No. 38
(1980).
/3/ Section 7114(b)(3) provides that the duty to negotiate in good
faith shall include the obligation--
"(3) to meet at reasonable times and convenient places as
frequently as may be necessary, and to avoid unnecessary delays."
/4/ Teefy testified, "I believe one or both of the supervisors were
there (at a meeting on March 30, 1982 in District Manager Manjarrez's
office)." (Tr. 81-82). Steward Johns did not identify either supervisor
as being present at this meeting. (Tr. 98).
Mr. Wilson G. Schuerholz, For the Respondent
Mr. Michael A. Teefy, For the Charging Party
Stefanie Arthur, Esquire, For the General Counsel, FLRA
WE WILL NOT unilateral change the assignments of bargaining unit
employees for contact stations work without first providing appropriate
prior notification to the American Federation of Government Employees,
AFL-CIO, the employees' exclusive bargaining representative, and
affording it an opportunity to bargain, upon request, concerning the
procedures to be observed in implementing such change and appropriate
arrangements for employees adversely affected thereby.
WE WILL NOT in any like to 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 appropriate prior notification to the American
Federation of Government Employees, AFL-CIO, of any intended change in
the assignment of bargaining unit employees for contact station work, or
any other proposed change in conditions of employment, and, upon
request, bargain with such representative to the full extent consonant
with law.
. . . (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 of 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, Suite 542, San Francisco, CA 94108
and whose telephone number is: (415) 556-8106.
30 FLRA-ALJ; Case No. 8-CO-20006-2 July 22, 1983
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 945, AFL-CIO
(VETERANS ADMINISTRATION MEDICAL CENTER, TUCSON, ARIZONA), Respondent,
and LINDA S. MOORE, AN INDIVIDUAL, Charging Party
Before: FRANCIS E. DOWD, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein the Statute, 92 Stat. 1191, 5 U.S.C. 7101 et
seq. It was instituted by the issuance of a Complaint and Notice of
Hearing dated August 12, 1982, based upon an unfair labor practice
charge filed on December 21, 1981 by Linda Moore. /1/ The charge
alleged that Linda Moore was expelled on an unspecified date from
membership in American Federation of Government Employees, Local 495,
AFL-CIO (herein referred to as Respondent, AFGE, or Union), for a period
of 5 years.
The Complaint alleged that the expulsion occurred on or about September
19, 1981, was for a period of 4 years, and was discriminatory in that it
was based upon her marital status in violation of Section 7116(b)(4) of
the Statute. By marital status is meant the fact that she was then
married to Jimmy Moore who also was expelled. The Complaint alleges no
violation with respect to Jimmy Moore. Respondent's Answer denies the
allegation of the Complaint on the merits, and raises other procedural
and jurisdictional defenses which I will address later.
A hearing was held in Tucson, Arizona, at which time the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine and cross-examine witnesses and argue orally. Briefs
filed by the General Counsel and Respondent have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
1. The Respondent is the exclusive representative of certain
employees at the Veterans Administration Medical Center, Tucson, Arizona
(herein referred to as the VAMC). Linda Moore has been employed at the
VAMC as a secretary for 5 years. She became a member of Respondent in
1978. From about 1979 until June 1981, she was Respondent's Second
Vice-President. Her duties in that position were those of the
membership chairman: i.e. keeping a current record of the members of
the local, distributing membership cards to new members, and trying to
get people to join Respondent. In addition, she voluntarily prepared
the Respondent's newsletter. Linda's former husband Jimmy Moore also
was officer in AFGE Local 495, holding the position of First Vice
President. By letter of June 4, Jimmy Moore resigned this position.
2. In late May or early June, Jimmy Moore arranged a meeting with
Dick Coffey, national representative of the National Federation of
Federal Employees, a labor organization which at that particular time
was involved in an election at Davis-Monthan Air Force Base in Tucson.
The meeting was held at the Ambassador Hotel shortly after Moore
completed his work for the day. Linda, his wife at that time, attended
the meeting. Her version of what happened is that she first learned of
the scheduled meeting when she met her husband to drive home from work.
Although the meeting place was in the opposite direction from her home,
Linda accompanied him to the meeting. She characterized her
participation as "more of a listener" but admits to having made some
comments (Tr. 40) and asking a question or two (Tr. 45). As to what was
said at the meeting, Linda stated that Jimmy made some comments about
AFGE (Tr. 46).
Jimmy, however, denied this (Tr. 104). As to the length of the meeting,
Linda said it lasted an hour, whereas Jimmy said it was brief because
Coffey was "short of time."
3. Between June 4 and June 10-- the week immediately following Jimmy
Moore's resignation-- he met four times with Coffey. If I am to believe
Jimmy Moore, it was only at these meetings at which Linda was not
present, that he and Coffey discussed the possibility of circulating a
petition to obtain the requisite number of signatures required to force
an election and unseat AFGE. If I am to believe Jimmy Moore, he did not
discuss at all with his wife his idea to file a petition (Tr. 103, lines
11-12). However, her testimony was to the contrary (Tr. 41, 48).
Certainly, its more believable and more natural that Jimmy Moore would
have discussed with his wife what transpired at the meetings with
Coffey, especially since she admits they discussed their respective
resignations and she even changed a word or two in his resignation.
4. On June 11, 1981, Linda Moore submitted a letter of resignation
addressed to the president and members of Respondent. She did not
resign her membership, but merely resigned her office as Second Vice
President. This was accomplished in the first sentence of the letter.
The remainder of the page-long single-spaced letter consisted of
accusations against the Union President, criticism of the Union contract
and objections to the conduct of a recent election. The final paragraph
of the letter read as follows:
In summary, I feel that Local 495 does not engage in any
collective bargaining of any real benefit to the employees, does
not conduct business in an appropriate manner, and fails to follow
its established constitution and bylaws. In addition, I feel the
president has usurped her executive power and has thus failed to
meet her responsibilities to the executive board and membership.
5. On June 11 or 12, Coffey, Jimmy and Linda had dinner and no
business was discussed. Yet, the testimony of both Jimmy and Linda
Moore shows that by this time Jimmy already had possession of the
election petition, and Linda had either just resigned or was in the
process of doing so. I find it hard to believe that business was not
discussed at the dinner. Indeed, I do not credit Jimmy Moore's
testimony that no business was discussed on the only two occasions when
Linda was present during his meeting with Coffey, and that the only time
business was discussed was when she was absent. His testimony is
obviously contrived because he believes to do so helps to further his
ex-wife's unfair labor practice charge.
6. On June 13, Jimmy Moore began to circulate the election petition
which both of them had signed. A week later he returned the petition to
a NFFE representative.
Jimmy Moore also said he asked and received from Linda a copy of her
resignation which he planned to "distribute." Linda's resignation letter
eventually found its way to a bulletin board where it was observed by
other AFGE officers during the period in which Jimmy was soliciting
employees to sign his petition. The time selected by Jimmy to circulate
the petition was the week when the Union President and other officials
were at a training conference in Salt Lake City. Also on June 13, Linda
flew to Tuscola, Illinois where she remained for 13 days. Thus, she was
absent during the week in which Moore was circulating the petition, and
she could not personally have placed her resignation letter on the
bulletin board. Whether she gave Jimmy carte blanche authority to
utilize the resignation as he saw fit is an issue which, in view of my
decision herein, I do not have to decide. The possibility exists that
she did not know what use he was going to make of it. However, Jimmy
knew what he was going to do with it; he planned to distribute it to
the members and to the bargaining unit. Jimmy Moore did not "recall"
telling Linda what he intended to do with it. However, as noted by
Respondent in its brief, Linda knew of the petition before she resigned,
and gave Jimmy her resignation letter knowing precisely that his efforts
were directed to replacing AFGE with NFFE.
7. Also out of town during this time was Evelyn Greeson, President
of AFGE Local 495. Greeson was in Salt Lake City during the month of
June, for a training seminar. It was not until her return from that
trip on approximately June 21, that she was given a copy of Linda's
letter of resignation. Greeson also learned that Linda's letter of
resignation had been posted on the union bulletin board and, therefore,
the Executive Board Committee was convened to discuss the matter.
Greeson testified that since Linda's letter had been found on the union
bulletin board, the Executive Board assumed she was working with NFFE
and therefore decided to have an internal union trial regarding her
activities as well as those of her husband. Further, Greeson credibly
testified that at no time did the Executive Board discuss filing charges
against Linda Moore due to any of her husband's acts. The decision to
hold the trial, according to Greeson, was based upon the way Linda
Moore's resignation letter had been written and distributed. In
addition, since the Committee members were unaware of whether or not
Linda authorized the letter's use in that manner, the Board felt it was
important to have a hearing to find out the facts. Since the Board did
not feel that Local 495 could give Linda Moore an impartial hearing, it
contacted Charles W. Carter, National Vice-President for AFGE, to ask
that another Local conduct the trial on its behalf. Carter agreed to
the Board's request that AFGE Local 1662 hold the hearing.
8. By letter dated July 28, the Board of Local 495 notified Linda
Moore of the charges against her, as well as the fact that Local 1662
would conduct the hearing on the charges on Saturday, August 1, at 2:00
p.m., and invited her to appear at that time to submit her defense.
Linda Moore testified that she received the letter approximately 2 days
before the scheduled hearing and, because she did not feel she received
proper notice, did not attend the hearing.
That hearing was held on schedule, however, with three members from
Local 1662 comprising the trial committee. G.C. Exh. No. 2 is a
transcript of that hearing. Four witnesses appeared on behalf of AFGE
Local 495 and presented evidence regarding Linda Moore's activities.
Essentially the evidence consisted of the fact that her resignation
letter was on the bulletin board. While claiming that she was not given
enough time to prepare her defense, Linda Moore also admitted that she
made no attempt to contact anyone from either Local 495 or Local 1662 to
obtain a postponement of the August 1 hearing date. Nor did she appear
at the August 1 hearing to request a postponement. In point of fact,
Linda Moore did nothing to let either the trial committee, nor the
Executive Committee of Local 495, know that she did not have adequate
time to prepare for the August 1 hearing.
9. Greeson, who attended the hearing, credibly testified that no
decision was made during that hearing on the charges lodged against
Linda Moore. Now was there any discussion or decision on the matter
between August 1 and August 3. On August 3, the monthly membership
meeting of Local 495 was held. Greeson, who chaired the meeting,
testified that no one reported to the membership on the Linda Moore
trial, and the official minutes (Resp. Exh. No. 12) of the August 3
meeting support that fact. Greeson explained that the procedure used by
the Local with respect to membership meeting minutes was to have the
secretary, Sylvia Henry, take notes in longhand. Henry's handwritten
notes were then reduced to typewritten form, and presented to the Local
at the next membership meeting for corrections, additions, etc. The
membership would then vote on the minutes, after which they became the
"official" minutes of the meeting. Linda Moore testified that she saw
the handwritten "minutes" of the August 3 meeting, which apparently
indicated that action had been taken to expel her and believed that
information in spite of the fact that she was very familiar with the
Local's procedure for approving meeting minutes, having been a union
official. Further, she admitted she did not know whether, in fact,
those notes reflected everything that occurred during the meeting or
whether they were the official minutes of the meeting. /2/
10. Because Linda Moore did not appear at the August 1 hearing,
trial committee chairperson Barbara Garcia (President of AFGE Local
1662) wrote a letter to her on August 11 giving her 10 days from receipt
thereof to present information to the trial committee (G.C. Exh. No. 4).
This was a second request by that committee for information from Linda
Moore. Jimmy and Linda Moore jointly responded to Garcia's letter, by
correspondence dated August 17 in which they claimed that the charges
were unfounded and that they did not have proper notice of the August 1
hearing (G.C. Exh. No. 5).
They further stated that since the trial committee's
findings/conclusions, and resulting sanctions, had already been
presented to the Local Union's membership, " . . . any further protest
on our part will be futile."
11. Barbara Garcia responded on August 20, with yet a third request
for Linda Moore's side of the story (G.C. Exh. No. 6). She reiterated
that the Committee had not yet made any findings/conclusions, nor
recommended any sanctions. In addition, she informed Linda Moore that
another hearing had been scheduled for September 19, and encouraged her
to attend that hearing with " . . . the witnesses you wish to bring . .
. " Finally, Garcia assured Moore that the, " . . . matter will be
conducted in a fair and equitable manner." Linda Moore's response to
that third request for information from Garcia was a letter dated August
31 telling Garcia that, since Moore would not be a member of AFGE after
September 1, (because of her June 30 drop notice) AFGE would not have
jurisdiction over her case after that date (Resp. Exh. No. 2). That
letter was Linda Moore's only response to the trial committee's repeated
requests for information, and she did not attend the September 19 trial.
/3/
12. During the first week of November, Greeson received the report
of the trial committee on the September 19 hearing (Resp. Exh. No. 13).
At the same time, she received documentation which encompassed the
findings and recommendations of the trial committee (Resp. Exh. Nos. 14,
15). The Committee found Linda Moore guilty of the charges against her
and, because they felt she was guilty to a lesser degree than her
husband, recommended a lesser punishment to her, to wit: expulsion from
AFGE Local 495 for 4 years. The committee's recommendation pointed out
that the expulsion would become effective upon a vote of the AFGE Local
495's membership at the next meeting. Greeson testified that prior to
her receipt of this information, she had not received any indication
from the trial committee as to what the outcome of the trial would be.
Nor had the topic been discussed with any of the members of the trial
committee or an any membership meetings. And, although Linda Moore was
sent a copy of the trial committee's findings and recommendations, she
failed to pick them up at the Post Office. /4/ She eventually received
them prior to the January 4, 1982 meeting of the Local's membership, but
she never contacted Greeson to discuss the matter.
13. The next regularly scheduled membership meeting, after the trial
committee's report had been received by the Union, was on January 4,
1982. Greeson reported on the findings and recommendations of the trial
committee and, without discussion, the membership voted unanimously to
implement the recommended sanctions (Resp. Exh. No. 16). On January 6,
1982 Greeson wrote to Linda Moore, informing her of the findings of the
trial committee, as well as the vote of the membership on January 4 to
expel her (G.C. Exh. No. 7). That correspondence also indicated that
Ms. Moore had the right to appeal that decision.
14. In the interim, Linda and Jimmy Moore had filed suit in the U.S.
District Court for the District of Arizona in October 1981, alleging
various causes of action against the Respondent Local Union, as well as
several of its officers individually, for violations of their civil
rights, breach of contract, and defamation (Resp. Exh. No. 4). Linda
Moore admitted that the facts underlying this lawsuit center on the same
allegations she made here-- that she was improperly expelled from the
Respondent Local Union. Throughout the civil litigation, Linda Moore
was represented by an attorney, Debra Hillary. That action was resolved
through a settlement agreement, signed by both Jimmy and Linda Moore,
dismissing the action with prejudice (Resp. Exh. No. 3). The terms of
the settlement agreement included a promise both Jimmy and Linda Moore
that they,
" . . . shall not file any further litigation on any present
and/or future claims arising out of or in connection with action
taken against the Plaintiffs by AFGE Local 495 at its January 1982
membership meeting or prior thereto concerning the matters covered
by this lawsuit. Further, in this regard the Plaintiffs recognize
that Plaintiffs shall be bound by the decision or decisions to be
issued by AFGE in connection with any appeals emanating from the
aforesaid action taken by AFGE Local 495 and expressly agree that
Plaintiffs shall not file any litigation arising out of or in
connection with such appeals."
That release was dated April 28, 1982. Ultimately, AFGE determined
that her appeal to the National was untimely.
A. The General Counsel's Motion to Amend the Complaint to Allege that
Moore's Expulsion Occurred After the Charge was filed.
The unfair labor practice charge filed on December 21, 1981 put
Respondent on notice that her alleged expulsion from the Union was the
basis for Section 7116(b)(4) allegation. However, it was not until the
Complaint issued on August 12, 1982 that a specific date (September 19,
1981) was asserted to be the date of expulsion. At the hearing on
November 19, 1982, Counsel for the General Counsel moved to amend
paragraph 10(a) of the Complaint to change the actual date of expulsion
from September 19, 1981 to January 6, 1982. Counsel asserted that his
amendment was merely a technical matter. The undersigned reserved
ruling on the motion.
Respondent objects to the amendment on a number of grounds. First,
Respondent disagrees that the amendment is merely a technicality and
argues that the whole thrust of the Complaint is the date upon the
expulsion occurred, namely "on or about September 19, 1981." I disagree.
As correctly pointed out by the General Counsel, the issue to be
litigated is the fact of Moore's expulsion and the reasons why. Whether
the date of expulsion was in September or January is not significant and
does not detract from the sufficiency of the notice informing Respondent
of the alleged violation to be litigated at the hearing. To merely
change the date does not "totally change the allegation" as contended by
Respondent. It is well established case law that a Complaint may be
amended to include allegations which have a relationship to the charge
and are closely related to the events complained of in the charge,
including matters occurring after the date of the charge. /5/
Secondly, counsel for Respondent contends that because Counsel for
the General Counsel did not discuss the proposed amendment until the
hearing, he was surprised and unprepared to defend against this new
allegation. In my opinion, this objection is baseless. Whether
surprised or not, Counsel was well prepared and the matter was fully
litigated.
Essentially the question is not whether counsel was surprised but,
rather, was he prejudiced. The answer is that he was not prejudiced.
Indeed, he did an excellent job of presenting Respondent's defense and,
in my opinion, the record is full and complete.
Thirdly, Respondent notes that Section 7118(a)(1) of the Statute uses
the words "having engaged or engaging in an unfair labor practice."
Since the proposed amendment of the Complaint would allege the date of
expulsion to be January 6, 1982, the effect is to allege an unfair labor
practice occurring after the date of the charge. While this may not
seem logical it is quite legal. /6/ In any event, the conduct
complained of arises out of the charge and, therefore, fits within the
phrase "engaging in" an unfair labor practice. Thus, it is not merely
the date of final expulsion with which we are concerned but, rather, the
entire procedure leading up to the expulsion, beginning with the July
28, 1981 letter from Respondent setting forth the provisions of the
Union constitution and bylaws which Moore was accused of violating, and
informing her that the penalty with respect to some of the charges was
expulsion. For the reasons stated above, I reject Respondent's
arguments and grant General Counsel's motion to amend the Complaint.
B. Respondent's Motion to Dismiss on the Ground that Moore is Barred
from Litigating the Unfair Labor Practice Charge by the Terms of the
Release and Joint Stipulation Executed to a Civil Proceeding Before The
U.S. District Court.
Moore's civil lawsuit alleged violations of 42 USC 1985 (3), 5 USC
7116(b), and 28 USC 1343. Essentially the suit was based on alleged
civil rights violations, defamation, and disprivation of the
constitutional right to free speech and free association-- all arising
out of the same set of facts which gave rise to Case No. 8-CO-20006-2
before me. On April 28, 1982, Moore signed a Release stating: "In
consideration for the agreement by all parties to dismiss with prejudice
the lawsuit currently pending in the United States District Court for
the District of Arizona. . . . The Plaintiffs shall not file any
further litigation on any present and/or future claims arising out of or
in connection with action taken against the Plaintiffs by AFGE Local 495
at its January 1982 membership meeting or prior thereto concerning the
matters covered by this lawsuit." The Release further obligated Moore to
be bound by the decision of AFGE on her appeal of her expulsion. Moore
was represented by an attorney in the civil proceeding.
Respondent contends in its brief as follows:
the aforementioned lawsuit . . . was filed . . . on October 23.
The settlement agreement . . . was signed on April 28, 1982.
The instant action was commenced by Linda Moore's Charge dated
December 23. What should be obvious from this, is that Linda
Moore is trying to get two bites out of the apple. First, she
filed a lawsuit against the Union, complaining of the exact same
actions by the Respondent which gave rise to this matter. When
she realized that that case had no merit, she filed the instant
charge with the Authority, complaining of the exact same actions
as in the lawsuit. She willingly signed the joint stipulation to
dismiss that lawsuit, with full representation by a licensed
attorney, and knowing full well what its contents were. In point
of fact, an accord and satisfaction was reached between the
parties. Now she is attempting to get out from under the legally
binding document, and have this agency provide her with the relief
she sought unsuccessfully through other legal channels.
The Union would submit that to allow Ms. Moore to knowingly
vacate the terms of the above-referenced stipulation to dismiss
with prejudice, would be to make a sham of the entire settlement
process, whereby civil litigation is disposed of prior to actual
litigation occurring. . . . The Union respectfully requests that
she be held accountable for her actions and hold her to the
legally binding contract she entered into as a result of the
settlement agreement.
In the preceding section of this decision I have ruled that well
established legal authority permits the General Counsel to amend the
complaint. I feel compelled to point out, however, that such ruling
permits Charging Party Moore to do indirectly (via the General Counsel)
precisely what she could not do herself directly. Because of the clear
language of the Release executed on April 28, 1982, Moore was precluded
from thereafter filing an amended charge (should one have been legally
necessary), or a new charge (should her first charge already have been
dismissed on the grounds, for example, that it was premature or lacked
merit, or both). Although a different judicial forum might conclude
that Moore's conduct violated the spirit of the Release, the issue
raised by the Respondent is whether the terms of the Release estop Moore
from proceeding with this case. Although I will address this issue I
must observe at the outset that resolution of this issue is not
critical. The real issue is whether Moore's Release estops the General
Counsel form litigating this matter.
Since Moore did not, in fact, file any further litigation, she
technically complied with the literal language of the Release. In this
regard, I note that the Release did not expressly require Moore to
withdraw the related unfair labor practice charge then pending before
the Regional Director of the Authority.
Therefore, she was not estopped.
Even if the Release had required Moore to withdraw the charge in Case
No. 8-CO-20006-2, her request for withdrawal would be subject to the
approval of the Regional Director. (See Section 2423.9(a) of the Rules
and Regulations). Since the Regional Director was not a party to the
Release, it is not binding upon him. Therefore, he was not estopped.
It is not inconceivable that the Regional Director might refuse to
approve the withdrawal request if he believed it was not in the public
interest to do so.
Separate and apart from whether a Regional Director might refuse to
approve a withdrawal request, is the practical question of whether the
General Counsel could successfully prosecute the case without the
cooperation of the Charging Party. In cases where such cooperation is
not essential, the Regional Director may issue a complaint on behalf of
the General Counsel and proceed to litigation without the aid of the
Charging Party. In cases when such cooperation is essential but not
forthcoming, the Regional Director may dismiss on the basis of lack of
cooperation. The present case is one in which the Charging Party's
cooperation is essential because her testimony is vital to the General
Counsel's case. The record does not disclose whether Moore was
subpoenaed or whether she testified voluntarily. If the latter, I can
understand the Union's concern that Moore may have violated the spirit
of the terms of the Release which states that she would be bound by the
decision of AFGE on her appeal. Obviously, she does not wish to be
bound by AFGE's decision on her appeal. Moreover, since she chose not
to participate in the AFGE proceeding on her expulsion, nor to pursue
the adverse decision before the Assistant Secretary, it is apparent that
her preference is to litigate this issue before the Authority in the
context of an unfair labor practice proceeding.
In summary I find and conclude that the literal terms of the Release
were complied with by Moore and she is not barred from litigating this
matter. More importantly, the Regional Director was not barred because
he was not a party thereto. Accordingly, the motion to dismiss on this
ground is denied.
C. Respondent's Contention that the Entire Matter at Issue Here is
Moot because of Moore's Voluntary Resignation from the Union Prior to
Her Expulsion and Prior to Filing the Charge.
Respondent cites as authority for this contention, the case of
General Service Employees Union, Local 73 and Edward J. Rylko, 2 A/SLMR
269, A/SLMR No. 159 (1972). There, the complainant alleged that the
Respondent union violated the Executive Order by depriving union members
in the engineering division at the Veterans Administration Hospital of
proper and equal representation, by disregarding the complainant as
their committeeman and spokesman and by improperly dismissing him as the
committeeman.
A notice of hearing was issued, and a hearing commenced. After the
hearing began, the complainant voluntarily resigned from that union and
further stated he did not wish to be reinstated to membership in it, nor
have anything to do with it. In his decision, the Assistant Secretary
did not say he had no jurisdiction or that the merits could not be
decided. Rather, the Assistant Secretary seemed to focus his attention
on a perceived inability to remedy any violation which may have been
found. Thus, he held that the "rights protected by Section 204.2(a)(1),
(2) and (5) of the Regulations apply only to union members and any
remedy would have to relate to the member who filed the complaint. The
Complainant's resignation . . . precludes the granting of any relief in
this case and, therefore, the complaint should be dismissed." /7/ In
effect, the Assistant Secretary did not decline to assert jurisdiction
on the ground of mootness, but rather, found that the complainant failed
to state a claim upon which relief would be granted. Axeleod v. Stultz,
64 LRRM 2653, 2654 (E.D. Pa. 1967).
In my opinion the cited case is inapplicable. It involved a
standards of conduct proceeding under Section 7120 whereas the case
before me is a unfair labor practice proceeding under Section 7118.
Assuming, arguendo, that the Authority found a violation of Section
7116(b)(4) in this proceeding, I am of the view that Moore's voluntary
resignation does not preclude the Authority from fashioning an
appropriate remedy which could include the issuance of an order
requiring the Union (1) to cease and desist its unlawful conduct; (2)
to rescind its expulsion order and expunge same from its records; (3)
to restore Moore to membership, upon request, consistent with the
provisions of Section 7116(c); and (4) to post a Notice to Members at
its business office, at normal meeting places to Union members, and at
any other places where notices to Union members are customarily posted.
Furthermore, I am of the view that in the circumstances of this case
the Respondent is estopped from raising the mootness defense. Thus, the
facts clearly show that Moore, in her letter of June 11, only resigned
her position as Second Vice-President; she did not resign as a member.
Therefore, Moore was still a member when AFGE's Executive Board voted on
June 23 to prefer charges against Moore. Notification to Moore did not
take place until the Union's letter of July 28. In the meantime, Moore
informed her agency on June 30 that she wished to cease her dues
checkoff to the Union. On August 31 Moore told the Union that it had no
jurisdiction over her because she would not be a member after September
1.
In an Executive Order case, /8/ the Assistant Secretary held as
follows:
Under section 19(c) of the Order, a labor organization has the
right to enforce discipline in accordance with procedures under
its constitution or by-laws (sic) which conform to the
requirements of the Order. Where an individual is a member of the
labor organization at the time of the improper conduct, the labor
organization may enforce discipline against the individual member
irrespective of whether he subsequently has terminated his
membership. Thus, in my view, the termination of membership in a
labor organization does not extinguish a labor organization's
right to enforce discipline against a former member for improper
conduct prior to the termination of membership.
Therefore, Moore could not deprive the Union from jurisdiction to
institute a disciplinary proceeding simply because she chose to resign
voluntarily. In this regard, I am constrained to observe that the
subject of the disciplinary proceeding was Moore's conduct during the
period in which she actually was a member and officer. In any event,
Respondent Union acted as if it had jurisdiction and, pursuant thereto,
conducted a hearing and rendered a decision expelling Moore. Having
done that, it seems to me that the Union is estopped from now contending
that this entire matter is moot because of Moore's resignation. /9/
D. Respondent's Motion to Dismiss For Lack of Jurisdiction on the
Ground that the Assistant Secretary of Labor has Exclusive Jurisdiction
Pursuant to Section 7120.
In American Federation of Government Employees, Local 2000, AFL-CIO
and Wilder M. Mixon, 8 FLRA No. 125, 8 FLRA 718, herein AFGE Local 2000,
the Authority was presented with almost the same jurisdictional question
as is presented here. There, Local 2000 preferred charges against union
member Mixon, a former officer (Secretary-Treasurer), with probable
violations of Section XIV of the AFGE National Constitution. Among the
43 charges was an allegation that Mixon "collected signatures from VA
unit and non-AFGE unit employees to secede from AFGE and go with NFFE."
/10/
Mixon did not participate in the disciplinary proceeding. Local 2000
found her guilty and recommended her expulsion from membership. The
ultimate decision by the AFGE National Executive Council was to suspend
Mixon from membership for 2 years.
The General Counsel in that case issued a Complaint alleging that by
its discipline of Mixon, Local 2000 violated Section 7116(b)(1) by
interfering with, restraining and coercing employees in the exercise of
rights guaranteed by Section 7102. Further, the General Counsel's
Complaint alleged a violation of Section 7116(c) by denying membership
to Mixon for reasons other than the failure (1) to meet reasonable
occupational standards uniformly required for admission, or (2) to
tender dues uniformly required as a condition of acquiring and retaining
membership. At the hearing, the General Counsel argued that even if
there were valid reasons for the discipline, the Local violated Sections
7116(b)(1) and (8) if the discipline resulted in any part from improper
motivation. Thus, the General Counsel seemed to be saying that whatever
jurisdiction the Assistant Secretary might have under Section 7120, the
Authority also had jurisdiction to litigate the same issues based upon
suspected improper motivation in the enforcement of discipline. /11/
The Authority, recognizing the allegation to essentially be one of a
departure from Local 2000's constitution and bylaws in the imposition of
member discipline, held that Section 7120 as well as Section 7116(c)
require that such allegations be litigated before the Assistant
Secretary. Noting that the concluding sentence of Section 7116(c) is
substantially similar to the proviso to Section 8(b)(1)(A) of the
National Labor Relations Act, the Authority concluded that the last
sentence of Section 7116(c) "assures a union freedom of self regulation
where internal affairs are concerned," 8 FLRA, supra, at p. 728. Thus,
the Authority concluded:
" . . . that the discipline of Ms. Mixon concerned wholly
internal affairs of the union, (and) such discipline is not
cognizable under the unfair labor practice provisions of the
Statute; and the alleged departures by Local 2000 from its
constitution and by-laws (sic) are matters delegated by Section 20
of the Statute (5 U.S.C. 7120) to the Assistant Secretary of Labor
. . . whose jurisdiction over Standards of Conduct, including
safeguards against improper disciplinary action and proceedings
for enforcing Standards of Conduct, is exclusive, except where the
Complaint does not concern an internal union matter but touchs a
part of the public domain covered by the Statute.
8 FLRA at p. 788-789.
Accordingly, the Authority held that "the matters at issue involve
allegations that certain of the Respondent's conduct was inconsistent
with and violative of its constitution and bylaws, and thus are matters
within the exclusive jurisdiction of the Assistant Secretary of Labor
pursuant to the provisions of Section 7120 of the Statute."
It is not clear to me whether the Authority used the word "exclusive"
to mean sole jurisdiction, but I do not have to decide this question.
/12/ At the very least, the Authority meant the word exclusive to mean
that the Assistant Secretary of Labor has exclusive initial
jurisdiction. /13/
In my opinion, and in agreement with Respondent, the Authority's
decision in the above cited case governs this proceeding. The
Authority's decision was issued on May 20, 1982. The instant Complaint
was issued on August 12, 1982. Notwithstanding the fact that Linda
Moore's expulsion /14/ was for reasons other than nonpayment of dues or
failure to meet reasonable occupational standards, neither the charge
not the complaint allege a violation of Section 7116(c).
Similarly, the record shows that one of the charges against Linda Moore
was that she violated Article XIV, Section 2(a) of the Union's
constitution which prohibits, under the penalty of expulsion, a member
from "advocating, encouraging or attempting to bring about a secession
from the Federation of any local or any member or group of members."
Since Linda Moore was suspected of complicity with Jimmy Moore in the
campaign to replace AFGE with NFFE, the General Counsel argues (Brief,
p. 15) that she was engaged in protected activity within the meaning of
Section 7102 on the theory that she had the right to question the wisdom
or take issue with Respondent's policies. The Complaint, however,
contains no allegation that Section 7116(b)(1) was violated.
In essence, Linda Moore's suspected conduct in this case is similar
to that of Wilder Mixon in the AFGE Local 2000 case and the same
constitutional provision is alleged to have been violated. In addition,
the charges against Linda Moore also allege a violation of Section 2(c)
of Article XIV which states as follows:
Publishing or sending letter, circulars, printed matter or
statements, anonymous or otherwise, or making oral statements to
agency or public officials or others which contain untruths about
or which misrepresent the locals and/or their officers or the
Federation and/or its officers or representatives and/or which
vilifies, libels or impugns the honesty or character of any
officer or member of the Federation or any of its affiliates.
The credited testimony of Greeson shows that the Respondent had a
reasonable basis for concluding that Linda Moore may have been guilty of
the charges prepared against her by reason of the undisputed fact that
her resignation letter attacking the Union president's conduct of her
office was found prominently displayed upon a bulletin board during the
campaign to obtain signatures on an election petition. In the absence
of evidence to the contrary, from Linda Moore herself or from other
employees, /15/ it was not unreasonable for Respondent's officials to
assume that Linda Moore personally placed her letter on the bulletin
board or authorized someone else to do so. Thus, it was Linda Moore's
suspected conduct, and not her marital relationship to Jimmy Moore,
which was the basis for Respondent's institution of a disciplinary
proceeding against her.
Here, as in AFGE Local 2000, the thrust of the allegations against
the Respondent concern purely internal union matters, to wit: whether
the Respondent had sufficient reason to expel Linda Moore from
membership and, if so, whether its constitution and bylaws were followed
in that procedure. Under the case law cited above, therefore, I find
that the matters at issue involve allegations that certain of
Respondent's conduct was inconsistent with and violative of its
constitution and bylaws, and thus are matters within the exclusive
jurisdiction of the Assistant Secretary of Labor pursuant to the
provisions of Section 7120 of the Statute. /16/ Accordingly, I
recommend dismissal of the complaint. /17/
Having concluded that the Authority does not have jurisdiction it is
hereby recommended that the Authority issue the following:
The Complaint in Case No. 8-CO-20006-2 be, and it hereby is,
dismissed.
/1/ As of the hearing date, Linda Moore was divorced from Jimmy
Moore. Accordingly, she may also be referred to as Linda Burkholder in
this proceeding.
/2/ Apparently, there were some handwritten notes by Henry reflecting
discussions after the meeting had concluded, concerning Linda Moore's
case; however, they never became part of the official minutes because
they did not reflect anything that occurred during the membership
meeting.
/3/ According to Linda Moore, the information she received from
Sylvia Henry provides the basis for her belief as of early August that
she had already been tried and sentenced to be expelled. Even assuming
she honestly believed this to be true as of that time, its hard to
believe she could continue to hold this belief after the August 11 and
20 letters from Garcia advising her that no decision had yet been made
and informing her of her right to testify and bring witnesses to the
September 19 hearing. Nevertheless, when she filed her unfair labor
practice charge in December she was still asserting that she had already
been expelled. The evidence before me establishes this was not true.
It would have been more accurate to merely allege that expulsion
proceedings had been initiated by the Union based upon an alleged intent
to discriminate based upon marital status, and that such proceeding was
pending before the Union.
/4/ It was stipulated that Linda Moore was on a leave of absence from
October 5 to November 24, 1981 and spent a majority of the time in
Tuscola, Illinois. Upon her return she was living with a friend and had
not notified AFGE of any change of address.
/5/ Department of the Interior, 9 FLRA No. 65, 9 FLRA 543; NLRB v.
National Licorice Co. 309 U.S. 350, 369; NLRB v. Fant Milling, 360 U.S.
301; NLRB v. Dinion Coil Co., 201 F.2d 484, NLRB v. Kohler, 220 F.2d 3;
Texas Industries, Inc. v. NLRB, 336 F.2d 128; NLRB v. Carilli, 648
F.2d 1206, 1210.
/6/ See cases cited in fn. 8, supra.
/7/ But see 29 CFR 208.91 for the remedial powers of the Assistant
Secretary in a Section 7120 proceeding under the Statute.
/8/ Local 1858, American Federation of Government Employees (Redstone
Arsenal, Alabama), A/SLMR No. 275, 3 A/SLMR 274. Cf. American
Federation of Government Employees, Local 1650, Beeville, Texas (Naval
Air Station, Chase Field, Beeville, Texas), A/SLMR No. 294, 3 A/SLMR
416.
/9/ Cf. American Federation of Government Employees, Local 2206,
AFL-CIO, A/SLMR No. 1180, Case No. O-AS-8, 1 FLRA No. 77, 1 FLRA 696.
/10/ She was charged, inter alia, with causing dissension, refusing
to follow directions to refund dues illegally accepted, insubordination
at meetings, and falsification of financial records.
/11/ The proviso to Section 7116(c) states that this subsection "does
not preclude any labor organization from enforcing discipline in
accordance with procedures under its constitution or bylaws to the
extent consistent with the provisions of this chapter."
/12/ See Local 1858, American Federation of Government Employees
(Redstone Arsenal, Alabama), A/SLMR No. 275, 3 A/SLMR 274, wherein an
unfair labor practice proceeding, the Assistant Secretary found a
violation of Section 19(b)(1) of the Executive Order but "because the
question of the propriety of the discipline was not raised in the
complaint "deemed it unnecessary to consider whether the expulsion was
permissible under the Order and, if so, whether such discipline was
reasonable." Of course, under the Order the Assistant Secretary had
jurisdiction over both unfair labor practice proceedings and standards
of conduct proceedings.
/13/ As stated in Legislative History of the Federal Service
Labor-Management Relations Statute, Title 7 of the Civil Service Reform
Act of 1978, Comm. Print No. 96-7, Committee on Post Office and Civil
Service, House of Representatives, 96 Congress, First Session, November
19, 1979, page 760,
" . . . The initial jurisdiction to decide alleged violations
of the standards of conduct for labor organizations will be
retained by the Assistant Secretary, who administers similar
standards in the private sector."
/14/ It should be noted that Linda Moore's expulsion was not
permanent, but was for a limited period of 4 years. In the
circumstances herein, I need not decide whether this makes any
difference.
/15/ The plain fact is that Linda Moore had ample opportunity to
participate in the disciplinary proceeding and deny the charges.
/16/ I make no findings as to (1) the merits of the Union's charges
against Linda Moore, (2) the Union's compliance with the regulations
issued pursuant to Section 7120, (3) the Union's compliance with the
Statute, or (4) the reasonableness of the discipline imposed.
/17/ Assuming, arguendo, that the Authority has jurisdiction here, I
would find and conclude that the General Counsel failed to prove a prima
facie case of any violation of Section 7116(b)(4). Accordingly, I would
recommend dismissal on this basis and not reach the Respondent's
affirmative defense under Internal Revenue Service, Washington, D.C., 6
FLRA No. 23, 6 FLRA 96.
E. A. Jones, Esq, For the General Counsel
Stanley Lubin, Esq., For the Respondent
30 FLRA-ALJ; Case No. 7-CA-20477 July 27, 1983
SMALL BUSINESS ADMINISTRATION, WASHINGTON, D.C., Respondent, and
SMALL BUSINESS ADMINISTRATION, SALT LAKE CITY DISTRICT OFFICE, SALT LAKE
CITY, UTAH, Respondent, and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1099, AFL-CIO, Charging Party
Before: GARVIN LEE OLIVER, Administrative Law Judge
This decision concerns an unfair labor practice complaint issued by
the Acting Regional Director, Region Seven, Federal Labor Relations
Authority, Denver, Colorado against the Small Business Administration,
Washington, D.C. (Respondent, Washington, D.C.) and Small Business
Administration, Salt Lake City District Office, Salt Lake City, Utah
(Respondent, Salt Lake City), based on a charge filed by the American
Federation of Government Employees, Local 1099, AFL-CIO (Charging Party
or Union).
The complaint alleged, in substance, that Respondents violated sections
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (the Statute). The complaint alleged
that Respondents unilaterally implemented a change in conditions of
employment by requiring unit employee loan servicing officers to conduct
field visits to borrowers prior to preparing an SBA Form 327 and
reclassifying the status of a borrower's case file to
liquidation/litigation status in bankruptcy situations. The complaint
alleged that such change was made without providing the Union notice and
an opportunity to bargain over the impact and implementation of such
change.
Respondents filed answers denying that they had violated the Statute,
moving to dismiss the complaint on timeliness grounds, and raising
certain affirmative defenses. Respondents claimed that field visits
prior to reclassification were a long standing policy and practice, and,
even if a change were made, it had a negligible impact on working
conditions and did not rise to the level of an unfair labor practice.
A hearing was held in Salt Lake City, Utah. 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, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
The American Federation of Government Employees (AFGE) is the
exclusive representative of an appropriate unit of Respondents'
employees. The Charging Party is an affiliate of the National Council
of Small Business Administration Locals, AFGE, with whom Respondent
Washington, D.C. has a collective bargaining agreement. The Charging
Party has been delegated authority by this agreement to negotiate with
Respondent Salt Lake City, on behalf of AFGE, concerning local issues
and changes in employment conditions at Respondents' Salt Lake City
facility.
The Small Business Administration (SBA) makes loans directly to small
businesses and guarantees bank loans to small businesses. When
borrowers default on these loans, SBA typically assumes the task of
collecting the debt. An SBA employee commonly called a "servicing loan
officer" oversees the receipt of payments and corresponds with borrowers
and bankers, etc. When a loan is seriously in default the loan officer
can choose to accelerate the debt and sell collateral. The loan is then
classified "in liquidation," and a "liquidation loan officer" assumes
most collection responsibilities.
If a law suit is necessary to collect the debt, or if the case otherwise
becomes involved in legal proceedings (e.g. another lien holder sues to
foreclose his lien), the loan may be classified as being "in
litigation," and the legal department assumes responsibility for
court-related work. When a borrower files bankruptcy, the SBA Standard
Operating Procedures (SOP) provides that the loan is classified
"automatically" "in liquidation" so that the Agency can protect its
interests in the bankruptcy court. (See Respondent's Ex. 2).
SBA has had, at all relevant times, a policy of making field visits
to borrowers by a traveling representative of the bank or SBA. Field
visits facilitate communications between the borrower and lender, permit
inspection of collateral and early detection of financial distress.
S.O.P. 50-50-2J, paragraph 18, effective May 14, 1979, (General Counsel
Ex. 6), which was in effect at all relevant times, describes the nature
of field visits and when they should be made. Paragraph 18.b. describes
"mandatory" field visits and provides that field visits are required in
the event of automatic or contemplated liquidation as follows:
(2) Automatic, or contemplated liquidation. Field visits
should be part of reclassification action.
Bankruptcy of an uncollateralized account. Attendance at the
first meeting of creditors, or, obtaining schedules from the
bankruptcy court will fulfill this field visit requirement. If
determined to be a "No Asset" case, the visit may be waived under
the Rule of Two, with documentation on SBA Form 712, "Loan
Servicing Field Visit Report" to be placed in the file after
notation on SBA Form 1007, "Chronological Record." Note: The need
for this visit should in no way delay the reclassification of the
loan to "In Liquidation" status.
Since bankruptcy is a ground for "automatic liquidation," a field
visit as outlined is mandatory with respect to all borrowers filing
bankruptcy.
The expression "reclassification" in the S.O.P. refers to the
administrative act of completing a SBA Form 327 reflecting
reclassification into "liquidation" status and showing the justification
and approval of supervisors. The form is then routed to various SBA
components. (General Counsel's Ex. 3).
Prior to the 1979 S.O.P., in 1976 Elmer J. Carr, Chief, Portfolio
Management, in conjunction with Kent Moon, Acting Chief, prepared a
memorandum and liquidation checklist for the purpose of giving direction
to loan servicing officers of the things necessary to be done prior to
liquidation. It required loan servicing officers to make field visits
to bankrupt borrowers for the purpose of inspecting the collateral.
This was to be done prior to, or at the time of, reclassification, or
preparation of the Form 327. (Tr. 110-113, 132).
Kent Moon, now District Director, was a commercial loan specialist
with SBA in Salt Lake City from 1975 to 1979. He made visits to
bankrupt borrowers in almost every case prior to reclassification. He
felt it was a prudent lending practice as well as required by the
national S.O.P. and by local management.
Gerald Ned Randall was Chief of Portfolio Management from 1977 until
December 20, 1982. During the last year or two under Randall
(1980-1982) pre-reclassification visits were not made in all bankruptcy
situations. Although Randall felt that pre-reclassification visits were
required by the S.O.P., he did not push the loan servicing officers to
make such visits. He knew that some such visits were made and some were
not. He was under the impression from Hayden Austin, former counsel,
that since field visits might violate an automatic stay, they could wait
until permission for such a visit was granted by the bankruptcy court.
/1/ He did not tell the loan servicing officers not to make such visits.
He just didn't push it or do much about it one way or the other. He
knew that some loan servicing officers made such visits and some did
not. There were five loan servicing officers in 1981.
Alan Ferre was a loan servicing officer from November 1980 to May
1982. He made field visits to bankrupt borrowers prior to
reclassification of the loan to litigation and/or liquidation status on
a fairly regular basis. He did so because he felt the S.O.P. strongly
suggested it.
Two loan servicing officers, Wayne T. Blomquist, who has been
employed by SBA for 12 years, and David Adams, who has been employed for
5 years, did not make field visits in bankruptcy situations prior to
reclassifying the loan. They did not interpret the S.O.P. as
establishing as firm rule as to when the field visit should be made.
They testified that they had also been instructed by legal counsel not
to make such visits because of the legal implications. /2/ Where they
reclassified the loan without a field visit, the field visit thereafter
was normally made by the loan liquidation officers, by counsel, or
waived under the provisions of the S.O.P.
During September and October 1981 the Union and SBA Washington, D.C.
reached an agreement covering the performance management and appraisal
system, including procedures for the establishment of critical elements
and performance standards and the application of these elements and
standards to employees. (Respondent's Ex. 1). During the negotiations,
and after the agreement was signed, Respondent Washington, D.C. rejected
Union contentions that there was a requirement to later negotiate
individually or as a group on impact and implementation once the
specific standards had been set. Respondent Washington, D.C. maintained
that the agreement was the end of the negotiations over critical
elements and performance standards.
On October 7, 1981 the critical element worksheet for loan servicing
officer Wayne Blomquist was placed in effect. The critical element was,
"Make a mandatory field visit to SBA-serviced borrowers upon automatic
or contemplated litigation." The performance standard for "exceeds
requirements" was "field visit made prior to reclassification action."
The performance standard for "fully acceptable" was "field visit made at
time of reclassification action." The performance standard for
"minimally acceptable," which is grounds for denying routine step
increases in pay, was "field visit made after reclassification action."
(General Counsel's Ex. 7).
Mr. R. Kent Moon, became District Director of the Salt Lake City
District Office, SBA, on April 11, 1982. As the new Director, he
conducted an overview of the office and, on August 3, 1982, issued a
memorandum to C. Dale Randall, then Deputy District Director and Gerald
N. Randall, then Chief, Portfolio Management Division, concerning his
perception of poor loan servicing efforts, including the lack of field
visits in bankruptcy situations. The Moon memorandum was disseminated
to all loan servicing officers and liquidation loan officers as an
attachment to an August 10, 1982 memorandum from Randall which, in part,
required the employees to certify, when reclassifying a borrower's case
file to liquidation/litigation status on the SBA Form 327, that a field
visit to the borrower had been made within the last 3 months. (General
Counsel's Exs. 3, 4). The Union was not notified or given the
opportunity to bargain over this policy.
Since this time, loan servicing officers, Blomquist and Adams /3/
have made field visits to borrowers prior to the reclassification of
bankruptcy cases into liquidation/litigation status.
The requirement to conduct field visits to borrowers prior to
reclassification in bankruptcy situations makes it difficult for the
loan servicing officers to handle their case loads and balance their
field visits and office work. Since the pre-reclassification visits are
priority visits, they cannot always be scheduled along with other
routine visits. The difficulty in scheduling travel and balancing field
visits with office work can adversely affect the performance of loan
servicing officers. However, pre-reclassification visits do not vary in
substance from post-reclassification visits.
The General Counsel contends that Respondents on or about August 10,
1982 unilaterally changed the duties of unit employee loan servicing
officers by requiring pre-reclassification field visits in bankruptcy
situations; that such change had an immediate adverse impact and a
reasonable likelihood of future substantial impact; that the Union did
not waive its right to bargain over changes in job duties; and that the
charge was timely filed.
Respondents defend on the basis that a long-standing policy and
practice existed prior to August 1982 requiring that field visits be
made prior to reclassifying a loan in bankruptcy cases; that the August
1982 actions were merely remedial actions to correct deficient
performance; that the complaint, therefore, is untimely inasmuch as the
alleged change occurred prior to 6 months immediately preceding the
filing of the charge; that the Union waived its right to negotiate the
impact and implementation of critical elements and performance
standards; and that, even if a change were made, it was insignificant,
had no significant impact, and was within the exclusive rights of
management.
I agree with Respondents that the General Counsel has not proved the
allegations of the unfair labor practice complaint by a preponderance of
the evidence as required by section 7118(a)(7) of the Statute and
section 2423.18 of the Rules and Regulations. More specifically, a
preponderance of the evidence does not establish that Respondent(s) made
a change in the conditions of employment of loan servicing officers in
August 1982 when it required them to conduct field visits prior to
reclassifying a loan in bankruptcy situations.
The record reflects administrative directives dating back to 1976
requiring that field visits be made by loan servicing officers in
bankruptcy situations prior to reclassification of the loan. The S.O.P.
also required that a field visit should be "part of reclassification
action." Respondents' interpretation that this required field visits
prior to reclassification appears reasonable since preparing the SBA
Form 327 completes the the reclassification action. Visits thereafter
would be "after" reclassification and not "part of" reclassification.
This was the interpretation of the supervisors of the loan servicing
officers and of at least some of the loan servicing officers during the
entire relevant period. Some officers regularly made such visits prior
to reclassification because they thought it was required or "strongly
suggested" by the S.O.P. The 1981 critical element and performance
standard of loan servicing officer Wayne Blomquist also reflected this
policy. Field visits made after reclassification denoted substandard or
"minimally acceptable" performance.
The fact that the two present loan servicing officers did not
regularly make such visits during the period does not establish a past
practice. In order to constitute the establishment by practice of a
term and condition of employment the practice must be consistently
exercised for an extended period of time and followed by both parties,
or followed by one and not challenged by the other over a substantially
long duration. Social Security Administration, Mid-America Service
Center, Kansas City, Missouri, 9 FLRA No. 33 (1982). Even though these
two officers did not make such visits (with the knowledge of management,
at least during 1980-- 1982), there was no patterned consistency that
would be suggestive of a continuing condition. At the same time these
officers were not making such visits, other officers with management's
knowledge and consent continued to make such visits under the policies
outlined. There was no showing that a majority of the officers did not
make visits prior to reclassification during the pertinent period with
Respondent's knowledge and consent. Cf. Internal Revenue Service and
Brookhaven Service Center, 6 FLRA No. 127 (1981); Social Security
Administration 3-CA-1269, ALJDR 13 (1982). Thus, the alleged practice
of not making such visits was not shown to be consistently exercised.
It was not clearly enunciated, unequivocal, well understood, and jointly
accepted and acted upon.
It is concluded that Respondents' action in August 1982 requiring
that unit employee loan servicing officers must conduct field visits to
borrowers, prior to preparing an SBA Form 327 and reclassifying the
status of a borrower's case file to liquidation/litigation status, was
not a unilateral change in conditions of employment, as alleged in the
complaint, but was, instead, a reaffirmation of existing policy designed
to ensure uniformity of enforcement among all of Respondents'
subordinate supervisors and employees. Social Security Administration,
Mid-America Service Center, Kansas City, Missouri, supra.
In view of this disposition, it is unnecessary to consider
Respondents' additional defenses.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
It is hereby Ordered that the complaint in Case No. 7-CA-20477 be,
and it hereby is, DISMISSED.
/1/ Other options were also available to loan officers. Visits prior
to the filing of bankruptcy could be counted if made within 3 months
preceding reclassification. Attendance at the first meeting of
creditors, or obtaining schedules from the bankruptcy court also counted
in some cases. The bank could sometimes make the visit. If there was a
need to do so, the visit could be waived entirely.
/2/ Based on the testimony of Messrs. Moon and Randall, I do not
credit Messrs. Blomquist and Adams' testimony that their failure to make
such visits was based on a "hands off" policy at the direction of legal
counsel, which policy had existed for a period of from 5 to 12 years.
Consistent with Mr. Randall's testimony, I find that such visits "were
not pushed" because of the legal counsel's views during the period
1980-- 1982.
/3/ Two loan servicing officer positions are filled by Messrs.
Blomquist and Adams, and there is one vacancy. As noted, 2 years ago
there were five loan servicing officers.
William F. Hanson, Esquire,
Dana Sohm, Esquire, for the Respondent
Mr. William E. Wade, For the Charging Party
Nicholas J. LoBurgio, Esquire,
Joseph Swerdzewski, Esquire, For the General Counsel, FLRA
30 FLRA-ALJ; Case No. 6-CO-20024 June 23, 1983
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-89, FORT
BLISS, TEXAS, Respondent, and UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY, ARMY AIR DEFENSE CENTER, FORT BLISS, TEXAS,
Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns a Union publication which is alleged to
have afforded different employee representation for members of the Union
than for nonmembers of the Union.
This case was instituted by a charge filed on June 18, 1982 (G.C. Exh.
1(a)), which alleged violations of Sections 16(b)(1) and (8) of the
Statute. The Complaint and Notice of Hearing issued on September 29,
1982 (G.C. Exh. 1(d)); the Complaint also alleged violations of
Sections 16(b)(1) and (8); and the Notice of Hearing set the hearing
for November 18, 1982, at a place to be determined. By Order dated
October 25, 1982, the place of hearing was fixed (G.C. Exh. 1(g)); by
letter dated November 9, 1982 (G.C. Exh. 1(1)) Respondent requested
postponement of the hearing; by Order dated November 9, 1982 (G.C. Exh.
1(n)) the hearing was rescheduled to January 11, 1983; by Order dated
November 26, 1982, the hearing was further rescheduled to February 14,
1983, at a place to be determined (G.C. Exh. 1(p)); and by Order dated
January 20, 1983, the place of hearing was fixed (G.C. Exh. 1(r)),
pursuant to which a hearing was duly held on February 14, 1983, in E1
Paso, Texas before the undersigned.
At the commencement of the hearing, General Counsel moved to withdraw
the allegations of Paragraphs 8 and 10 of the Complaint and the motion,
to which there was no objection, was granted. As amended, the Complaint
alleges a violation only of Section 16(b)(1) of the Statute.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and the opportunity
to present oral argument which each party waived. At the close of the
hearing, March 14, 1983, was fixed as the date for mailing post-hearing
briefs which time was subsequently extended, upon Motion of Respondent
and for good cause shown, to April 5, 1983. Respondent and General
Counsel each timely mailed a brief, received on, or before, April 8,
1983, which have been carefully considered. Upon the basis of the
entire record, I make the following findings and conclusions:
1. The National Association of Government Employees, Local R14-89
(herein also referred to as "Respondent") is the exclusive
representative of approximately 1,150 to 1,200 General Schedule
employees at Fort Bliss, Texas (Tr. 12). About 210 of these employees
are members of Respondent (Tr. 13).
2. Since 1975, Respondent has regularly published an official local
publication entitled, "NAGE NEWS." It is published monthly, generally,
"though we do skip months" (Tr. 13).
3. Mary B. Bayer is, and has been since the inception of Respondent
in 1975, President of Respondent (Tr. 11). As President, she has final
authority as to what is published in "NAGE NEWS" (Tr. 13) and she
personally writes much of what is printed (Tr. 13) and was the author of
the May 31, 1982, issue which contains the portions giving rise to this
proceeding.
4. The "NAGE NEWS" is mailed to members of Respondent (Tr. 14-15,
33); however, copies are sometimes posted by stewards on bulletin
boards (Tr.14). The record is silent as to whether the May 31, 1982,
issue of "NAGE NEWS" was, or was not, posted.
5. The May 31, 1982, issue of "NAGE NEWS" provided, in part, as
follows:
"WHAT DOES UNION MEMBERSHIP MEAN ???????
"Well, for one thing, Union membership (dues paying type) means
ALWAYS having someone on your side. It means ALWAYS having help
with problems. It means having legal assistance when necessary,
or having access to local professional help at reduced fees or
even free for some things. Union membership means that extra
attention to management's proposals when impact on dues paying
members is possible. It means that we'll ALWAYS side with our
member against any non-member. . . . " (G.C. Ex. 2, p. 1).
Under a separate heading entitled, "The Humpty Dumpty School of Ipse
Dixitism", the "NAGE NEWS" referred to a court decision which held that
Fort Bliss had violated Army Regulations by failing to accord a
reinstated employee his prior step level and then stated,
" . . . If you're a dues paying member and want help preparing
a claim, contact the union president. We recommend going forward
not in order not to get caught in any statute of limitations
situation which might later be established" (G.C. Ex. 2, p. 2).
6. With regard to the sentence in "NAGE NEWS" that,
" . . . It (Union membership) means having legal assistance
when necessary, or having access to local professional help at
reduced fees or even free for some things. . . . ",
Ms. Bayer testified,
"A. We have-- several attorneys in town have offered the
membership a package of various services at reduced fees and
sometimes even at no cost, in that the initial consultation fee is
being waived for union members" (Tr. 17).
Ms. Bayer further stated that,
"A Grievance would be included to the extent that sometimes
members want a-- what they consider to be a professional opinion
on what kind of complaint they actually have, how valid is their
complaint, and one of the attorneys has said that he will discuss
that with them and point them in the right direction" (Tr. 18).
(See, also, G.C. Exh. 3, Par. 5).
Ms. Bayer, also stated that the package of service included wills,
EEO complaints, federal and civil matters, "I guess a whole range of
things that attorneys normally provide" (Tr. 18). Ms. Bayer stated that
such legal services are offered solely to union members only as "perks"
of membership (Tr. 19, 37, 45).
7. With regard to the sentences in "NAGE NEWS" that,
" . . . Union membership means that extra attention to
management's proposals when impact on dues paying members is
possible. It means that we'll ALWAYS side with our member against
any non-member. . . . ",
Ms. Bayer testified that,
" . . . The extra attention is, if we have-- if management
comes to me with a proposal-- they want to change something or do
something or implement something-- if I have-- if I know I have a
union member in the activity being affected, I can go to that
individual and say, Here is the proposal and, you know, do you
know about it? Tell me what you think about it. That is if they
haven't contacted us.
"If we don't have a union member in the activity being
affected, I sort of have to sit back and wait for people to come
to me. . . . " (Tr. 43).
Although juxtaposition of " . . . we'll ALWAYS side with our member
against any non-member" suggests "siding" with members against
nonmembers, inter alia, as to management proposals "when impact on dues
paying members is possible," Ms. Bayer denied that was true and stated,
". . . I don't even see how it could be construed or
interpreted that way" (Tr. 49).
8. As to representation by attorneys, Ms. Bayer testified variously
as follows:
Q. Do you know an employee by the name of Victor Urguidi?
"A. Urguidi. Yes, indeed I do. He works in my office.
"Q. Did you represent that employee in an EEO hearing?
"A. Yes.
"Q. Did you do the representation?
"A. No. Stewart (Forbes) did. I handled the case up to the
point of the hearing.
"Q. Now, do you handle such cases for nonmembers?
"A. Yes, I do, as a matter of fact. I don't know that I am
supposed to, but I do.
"Q. Do these nonmembers get attorney representation?
"A. If they want it.
"Q. Have there been any instances where they received an
attorney representative?
"A. I don't know. . . .
"But I must say this-- I guess I should say this: Not even all
the members . . . get attorneys for EEO complaints. I handle a
lot of them myself, and I will tell you why. EEO is awfully hard
to prove; discrimination is hard to prove, as you know. The
employee feels he or she has been discriminated against. We don't
always feel that we can prove it, that even the best attorney in
town is going to be able to prove that employee's case, so rather
than ask our national to send somebody in, we will handle it, . .
. " (Tr. 24-25).
"Q. Okay. Now let me ask you this: Of course, I (Mr. Forbes)
have an agreement with-- Do you know whether or not I have an
agreement with the National Association of Government Employees to
represent certain bargaining unit members?
"A. Yes.
"Q. Well do you know whether or not that that (sic) deals with
representation of bargaining unit employees under grievance and
other appeals procedures?
"A. Yes.
"JUDGE DEVANEY: All right. What is the agreement?
"THE WITNESS: The agreement is to represent, when the national
so directs, bargaining unit members in hearings.
"JUDGE DEVANEY: When the national so directs?
"THE WITNESS: Uh-huh" (Tr. 31-32).
"JUDGE DEVANEY: . . . And when you make the statement to the
union members that they have some benefit, you are telling the
nonmembers that this is a benefit they do not have. That is what
gives rise to this allegation against you and why we are here
today. It is just that simple.
"THE WITNESS: Well, but the thing is, we do provide legal
assistance and this was only a perk of membership. It didn't mean
that we wouldn't process their grievances. . . . " (Tr. 35-36).
"Q. To your knowledge, when an EEO complainant has asked for
an attorney, have they been provided with an attorney?
"A. It depends a lot on the case.
"Q. No, to your knowledge, when the EEO--
"A. Oh, All right. Yes. I have never been asked for an
attorney. They don't ask for an attorney in EEO.
"Q. Okay.
"A. Sometimes I ask the national to provide one, but sometimes
I do it myself.
"Q. And this-- under what circumstances do you ask for an
attorney?
"A. When I think that I have a very good case and one that . .
. " (Tr. 41).
" . . . In one case, I think we said it is a grievance; it is
not an EEO complaint, and they weren't even sure about that. So
he will advise them or has advised them. And then he is not going
to process that grievance for free, I can assume you, so then they
will come back to us and say, Well, okay we talked to Mr.
McCloskey or we got this other opinion and this is what we want to
do.
"Q. Okay. These employees, you are talking about members. Is
that correct?
"A. I am talking about members or I have even recommended
McCloskey and Forbes to nonmembers, but I don't know anything
about what they are charged, what fee they are charged" (Tr. 45).
"Q. Now, the board (grievance board; Chief Steward is
Chairman, plus two other stewards (Tr. 53-54)) determines whether
matters will be taken to arbitration, and who may take a matter to
arbitration? Only the union members?
"A. Only the-- well, I guess management can.
"Q. I understand. Leave out management. May an employee?
"A. No, sir.
"Q. . . . But you don't know whether there have been any
nonmember case that have (sic) gone to arbitration.
"A. No, sir, I don't, or have been denied.
"Q. You just don't know. But all arbitration proceedings have
been handled by attorneys. Is that correct?
"A. Yes, sir, absolutely" (Tr. 54).
"Q. Do you have any idea how many times or what percentage of
EEOC hearings have been handled by attorneys?
"A. For my bargaining unit, I don't think we have had all that
many, frankly.
"Q. How many have there been?
"A. Gosh, there have been an awful lot.
"Q. I mean how many have been handled by attorneys?
"A. . . . my local--
"A. -- have only had an attorney, I will not, at the most five
times.
"Q. . . . these five times that you do remember, do you know
whether the employee involved was a member or nonmember of the
union?
"A. I don't recall" (Tr. 56).
As noted above, the record does not show whether the May 31, 1982,
issue of "NAGE NEWS" was posted, although the "NAGE NEWS" had on other
occasions been posted, nor does the record otherwise show that
nonmembers of the Union were made aware of the May 31, 1982, issue;
nevertheless, I do not agree with Respondent's assertion that the
absence of proof of notice to nonmembers of the Union of the content of
the May 31, 1982, issue of "NAGE NEWS" is significant for the reasons
that: (a) conceded notice was given to all employee members of the
Union; and (b) President Bayer conceded that the statements contained
therein represented the policy of Local R14-89.
Notice to employee members of preferential treatment would, alone,
constitute sufficient notice to employees and proof of Respondent's
policy, of preferential treatment even if not communicated to employees,
would be sufficient to constitute a violation of the Statute if the
practice or policy constitutes disparate representation on the bases of
union membership.
Section 2 of the Statute provides, in part, as follows:
"Each employee shall have the right to form, join, or assist
any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal, and each employee
shall be protected in the exercise of such right. . . . " (5
U.S.C. 7102).
Section 16(b)(1) of the Statute provides:
"(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization--
"(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;" (5
U.S.C. 7116(b)(1)).
As noted above, General Counsel's motion to amend the Complaint, by
withdrawing the allegations of Paragraph 8, which alleged that
Respondent's conduct violated Section 14(a)(1), and of Paragraph 10,
which alleged a violation of Section 16(b)(8), was granted at the
commencement of the hearing.
Did Respondent interfere with, restrain, or coerce any employee in
the exercise of any right, and, as specifically alleged, the right
assured by Section 2 of the Statute "to form, join, or assist any labor
organization, or to refrain from any such activity, freely and without
fear of penalty of reprisal . . . ", by providing members only with free
consultation by an attorney on matters concerning conditions of
employment, including grievances and EEO complaints? I conclude that
Respondent did thereby violate Section 16(b)(1) because it interfered
with the employees' protected right under Section 2 of the Statute to
refrain from joining, or to terminate membership in, a labor
organization by providing a different standard of representation for its
members than for non-union members of its bargaining unit, based solely
upon Union membership. National Treasury Employees Union, 10 FLRA No.
91, 10 FLRA 519; 521 (1982); American Federation of Government
Employees, Local 1778, AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (1982).
Although the record shows that all grievances are processed by
non-attorneys to the arbitration stage and that all arbitration
proceedings are handled by attorneys, in each instance allegedly without
regard to union membership, by providing free legal consultation for
members only, Respondent handled grievances of members in a
significantly different manner than for nonmembers.
Indeed Ms. Bayer stated that the attorney would discuss the matter with
members and give a "professional opinion on what kind of complaint they
actually have . . . and point them in the right direction" (Tr. 18).
Did Respondent further violate Section 16(b)(1) by the provision of
legal services for members at reduced fees? To the extent that such
legal services involve conditions of employment, such as grievances and
EEO hearings, I conclude that Respondent did further violate Section
16(b)(1) of the Statute by providing for legal services at a reduced
rate for some members of the bargaining unit based solely upon Union
membership. The record as to Mr. McCloskey is ambiguous; but as to Mr.
Forbes, the record shows an agreement with the Union " . . . to
represent, when the national so directs, bargaining unit members in
hearings" (Tr. 32). In short, the quid pro quo for providing both free
consultation and representation at reduced rates, or as the "NAGE NEWS
stated," . . . legal assistance when necessary, or having access to
local professional help at reduced fees or even free for some things . .
. ", was Respondent's agreement to employ, at least Mr. Forbes, to
represent bargaining unit members in hearings. This is not to suggest
that Respondent could not provide legal services, either without cost or
at reduced rates, to members only which do not involve conditions of
employment, such as wills, domestic relations, etc. To the contrary, I
hold only that Respondent's retainer agreement with attorneys whereby
consultation is provided without charge and/or representation is
provided at reduced rates for matters involving conditions of employment
violated Section 16(b)(1) when such legal services are not provided to
all members of the bargaining unit without discrimination and without
regard to labor organization membership. Although specifically detailed
in Section 14(a) of the Statute, reference to which in the Complaint was
deleted by General Counsel, the duty imposed on labor organizations by
Section 14(a), to represent the interests of all employees in
organization membership, reflects the right guaranteed each employee by
Section 2 of the Statute to join or refrain from joining, freely and
without fear of penalty or reprisal, any labor organization and each
employee shall be protected in the exercise of such right. Accordingly,
Respondent's conduct violated Section 16(b)(1) because it interfered
with the employees' protected right under Section 2 of the Statute to
refrain from joining a labor organization, National Treasury Employees
Union, 10 FLRA No. 91, 10 FLRA 519, 521 (1982).
Did Respondent further violate Section 16(b)(1) by stating in the
"NAGE NEWS" that, "Union membership means that extra attention to
management's proposals when impact on dues paying members is possible.
It means that we'll ALWAYS side with one member against any nonmembers .
. . " and by notifying members of a court decision which held that Fort
Bliss had violated Army Regulations by failing to accord a reinstated
employee his prior step level and further stating in the "NAGE NEWS"
that,
" . . . If you're a dues paying member and want help preparing
a claim, contact the Union president.
We recommend going forward not in order not to get caught in any
statute of limitations situation which might later be
established." (G.C. Exh. 2, p. 2)? /2/
Ms. Bayer conceded that management proposals referred to in the "NAGE
NEWS" article concerned proposed changes in conditions of employment and
stated that when dues paying members are affected she actively solicits
input from those members; but when only nonmembers are affected by a
proposed change, no effort is made to contact them and she has to "sit
back and wait for people to come to me" (Tr. 43), although Respondent
discusses the proposed change with management and if Respondent doesn't
like it will even go to impact bargaining (Tr. 43).
The mischief wrought upon nonmembers is not the failure of Respondent
to solicit their input but, rather, is the failure of Respondent to
inform nonmembers of proposed changes in conditions of employment.
Respondent's policy and practice of soliciting input from members, in
actuality, serves two purposes: first, it informs members of the
proposed change; and, second, solicits their input. Because Respondent
sits back and waits for nonmembers to come forward, without notice,
nonmembers may, and in many instances would, have no knowledge of a
proposed change prior to its implementation. If all members of the
bargaining unit were given notice of proposed changes in conditions of
employment, solicitation of input from Union members only would not,
standing alone, be improper; but the vice specifically addressed is, as
General Counsel States, "By communicating to non-union members that
their interests will be ignored in connection with the collective
bargaining process because of their nonmembership status. . . . " (G.C.
Brief, p. 6). The Supreme Court, in Conley v. Gibson, 355 U.S. 41
(1957), held that the duty of fair representation extends to all aspects
of collective bargaining, stating, in part, as follows:
" . . . The bargaining representative's duty not to draw
"irrelevant and invidious" distinctions among those it represents
does not come to an abrupt end, as the respondents seems to
content, with the making of an agreement between union and
employer. Collective bargaining is a continuing process. Among
other things, it involves day-to-day adjustments in the contract
and other working rules, resolution of new problems not covered by
existing agreements, and the protection of employee rights already
secured by contract. The bargaining representative can no more
unfairly discriminate in carrying out these functions than it can
in negotiating a collective agreement. A contract may be fair and
impartial on its face yet administered in such a way, with the
active or tacit consent of the union, as to be flagrantly
discriminatory against some members of the bargaining unit." (335
U.S. at 46).
An exclusive bargaining representative's obligation is to represent
the interests of its entire bargaining unit, not merely its members, and
this it must do fairly and without discrimination. While nonmembers of
a union have no right whatever to bargain separately, because once a
labor organization is is chosen as the exclusive representative, it acts
for and negotiates collective bargaining agreement covering employees,
and the members of the labor organization ratify and approve such
agreements in the manner provided by the labor organization's governing
requirements, American Federation of Government Employees, Local 2000,
AFL-CIO and William R. Massengale, Case Nos. 6-CO-37 and 6-CO-38
(OALJ-82-52, February 24, 1982), nevertheless, the exclusive
representative may not discriminate against nonmembers of the Union.
Here, Respondent's newsletter pointedly stated that it would give "extra
attention to management's proposals when impact on dues paying members
is possible," and by inference implied that such proposals would be
given little or no attention if they impacted only on non-dues paying
members; directly proclaimed that "we'll ALWAYS side with our members
against any non-member;" and, in its article entitled, "The Humpty
Dumpty School of Ipse Dixitism", stated, "If You're a dues paying member
and want help preparing a claim, contact the union president," which
plainly implied that non-dues paying members need not bother. Moreover,
as Ms. Bayer testified, Respondent, under the guise of seeking input
from members as to the adverse impact of management proposals changing
conditions of employment, in actuality informed members, but not
nonmembers, of proposed changes. Without notice of such proposed
changes, Respondent's sitting back and waiting "for people to come to
me" was mere illusion to obscure Respondent's discriminatory withholding
of information from nonmembers concerning their conditions of
employment, which it had made known to its members.
Such pattern of discrimination against nonmembers was further shown
by Respondent's stated policy of providing free attorney consultation
and advice concerning grievances and providing for the services of
attorneys, either free or at reduced rates, to handle hearings. Even
if, as Respondent asserts, Respondent had no such established policy of
discrimination toward nonmembers, I fully agree with General Counsel
that, " . . . the language of the publication would be violative of the
Statute since it would reasonably tend to create an impression in the
reader's mind that Respondent discriminates against nonmembers" (G.C.
Brief, pp. 7-8). As General Counsel notes, the Authority, in American
Federation of Government Employees, Local 1778, AFL-CIO, 10 FLRA No. 62,
10 FLRA 346 (1982), held, in part, as follows:
" . . . by creating the impression that nonmembers seeking the
Union's assistance might be denied representation if they did not
agree to become members or to pay the expense of their
representation, the Respondent interfered with, restrained, and
coerced nonmembers employees in the exercise of their protected
right under section 7102 of the Statute to join or refrain from
joining, freely and without fear of penalty or reprisal, the
Respondent Union or any other labor organization" (10 FLRA at
348-349).
Having found that Respondent violated Section 16(b)(1) of the
Statute, I recommend that the Authority adopt the following:
Pursuant to Section 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Section 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders
that National Association of Government Employees, Local R14-89 shall:
1. Cease and desist from:
(a) Affording differing standards of employee representation to
employees in its unit of exclusive recognition solely on the basis
of whether such employees are members of the National Association
of Government Employees, Local R14-89.
(b) Creating any impression that the interests of nonmember
unit employees will not be represented as fully and as fairly as
the interest of dues paying members.
(c) Failing and refusing to give nonmember unit employees the
same notice of management proposed changes affecting their
conditions of employment as it gives to its dues paying members.
(d) Interfering with, restraining, or coercing unit employees
in the exercise of their right to join, or to refrain from
joining, freely and without fear of penalty or reprisal, the
National Association of Government Employees, Local R14-89, or any
other labor organization.
(e) In any like or related manner interfering with,
restraining, or coercing unit employees in its exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide clear notice that all unit employees will be
provided the same assistance of attorneys, and on the same terms,
on matters concerning conditions of employment, including legal
consultation and advice on grievances and EEO complaints and
representation at hearings.
(b) Give nonmember unit employees notice of management proposed
changes affecting conditions of employment at the same time that
dues paying members are advised of such proposed changes.
(c) Represent all employees in its unit of exclusive
recognition without discrimination and without regard to
membership in the National Association of Government Employees,
Local R14-89.
(d) Post at its local business office, at its normal meeting
places, and at places where notices to members and to employees of
the Army Air Defense Center, Fort Bliss, Texas, are customarily
posted, 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 President of the National Association
of Government Employees, Local R14-89, and shall be posted and
maintained for 60 consecutive days thereafter. Reasonable steps
shall be taken by the National Association of Government
Employees, Local R14-89 to insure that such notices are not
altered, defaced, or covered by any other material.
(e) Pursuant to Section 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director of the Federal Labor
Relations Authority for Region VI, whose address is: P.O. Box
2640, Dallas, Texas 75221, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(b)(1) will be referred to simply
as "Section 16(b)(1)."
/2/ Implicit in the form of notice to members only of a development
giving rise to potential wage claims is the duty of Respondent to advice
all members of its bargaining unit of such development and not merely
its members. Although the record does not show that the May 31, 1982,
issue of "NAGE NEWS" was posted or that Respondent otherwise gave any
notice of this development to nonmembers, I express no opinion
concerning Respondent's obligation, if any, to advise nonmembers of such
development for the reason that failure to advise was neither alleged in
the Complaint as a violation nor does General Counsel assert that the
failure to advise was included by the allegation of the Complaint. Cf.
American Federation of Government Employees, AFL-CIO and Social Security
Administration, Case No. 3-CO-20003 (OALJ-82-131, September 16, 1982).
Indeed, it is clear that General Counsel relies wholly on Respondent's
statements in its newsletter. See, General Counsel's Brief at p. 7.
Stewart W. Forbes, Esquire, Ronald E. Steensland, Esquire, By Brief,
For Respondent
Captain Allan Sirmans,
Captain Dwight A. Lewis, For Charging Party
Elizabeth A. Martinez, Esquire, For General Counsel
WE WILL NOT afford differing standards of employee representation to
employees in our unit of exclusive recognition solely on the basis of
whether such employees are members of the National Association of
Government Employees, Local R14-89.
WE WILL NOT create any impression that the interests of nonmember
unit employees will not be represented as fully and as fairly as the
interests of dues paying members.
WE WILL NOT fail or refuse to give nonmember unit employees the same
notice of management proposed changes affecting their conditions of
employment as we give to our dues paying members.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to join, or to refrain from joining, freely and
without fear of penalty or reprisal, the National Association of
Government Employees, Local R14-89, or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce unit employees in the exercise of their rights assured by the
Statute.
WE WILL provide clear notice that all unit employees will be provided
the same assistance of attorneys, and on the same terms, on matters
concerning conditions of employment, including legal consultation and
advice on grievances and EEO complaints and representation at hearings.
WE WILL give nonmember unit employees notice of management proposed
changes affecting conditions of employment at the same time that we
advice dues paying members of such proposed changes.
WE WILL represent all employees in our unit of exclusive recognition
without discrimination and without regard to membership in the National
Association of Government Employees, Local R14-89.
. . . (LABOR ORGANIZATION)
Dated: . . . By: . . . (Signature/TITLE)
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 VI,
whose address is: P.O. Box 2640, Dallas, Texas 75221; and whose
telephone number is: (214) 767-4996.
29 FLRA-ALJ; Case No. 2-CA-20166 June 17, 1983
MCGUIRE AIR FORCE BASE, UNITED STATES AIR FORCE, DEPARTMENT OF
DEFENSE, Respondent, and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
WM. G. BAILLE, JR. LOCAL 1778, AFL-CIO, Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on July 28, 1982
by the Regional Director for the Federal Labor Relations Authority, New
York, N.Y. Region, a hearing was held before the undersigned on January
24, 1983 at Philadelphia, Pennsylvania.
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called
the Statute). It is based on a first amended charge filed on April 14,
1982 by American Federation of Government Employees, WM. G. Baille, Jr.
Local 1778, AFL-CIO (herein called the Union) against McGuire Air Force
Base, United States Air Force, Department of Defense (herein called
Respondent).
The Complaint alleged, in substance, that (a) on or about November
15, 1981 Respondent unilaterally changed the work week of two bargaining
unit employees without affording the Union an opportunity to negotiate
re such change; (b) since on or about November 15, 1981 Respondent has
refused to bargain in good faith re the substance, impact and
implementation of the aforesaid change in the basic work week; (c)
since on or about November 16, 1981, Respondent has refused to furnish
the Union with relevant information pertaining to the change, which the
Union requested on or about November 5, 1981 in order to discharge its
duties as exclusive bargaining representative of the unit employees and
to which it was entitled under Section 7114(b)(4) of the Statute-- all
in violation of Section 7116(a)(1), (5) and (8) of the Statute.
Respondent's answer dated August 9, 1982 denies the essential
allegations in the Complaint, as aforesaid, as well as the commission of
any unfair labor practice.
Both parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Briefs were filed with the undersigned which
have been duly considered. /1/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
1. At all times material herein the Union has been, and still is,
the exclusive bargaining representative of all employees serviced by the
Base Civilian Personnel Office at McGuire Air Force Base, excluding
management officials, supervisors, employees of the Civilian Personnel
Office (other than those in a purely clerical capacity), employees of
the Fire Protection Branch, and professional employees.
There are approximately 1,500 employees in the bargaining unit.
2. Both the Union and Respondent are parties to a written collective
bargaining agreement executed on August 9, 1977, and which, by its
terms, is effective for a 3-year period and automatically renewable
thereafter unless modified or changed in accordance with the procedure
set forth therein.
3. Article 11 of the said agreement is labeled "HOURS OF WORK," and
Section 1 thereof which is entitled "REGULAR HOURS" provides as follows:
1. The administrative work week consists of seven (7)
consecutive calendar days. The administrative work week begins at
0001 Sunday and end 2400 on the next following Saturday. The
calendar day on which a shift begins is considered the day of duty
for that day, even though the work schedule extends into the next
calendar day or into the following administrative work week.
2. The basic tour of duty consists of the five (5) 8-hour days
(0745-1630), Monday through Friday, with a 45-minute lunch period
that comprises the employees' regularly scheduled 40-hour work
week. All proposed changes, deviating from or returning to the
basic work week, shall be negotiated prior to their
implementation.
3. Schedules shall be realistic, made on the basis of actual
employees available and the exact number required to staff a
particular shift. Exception may be granted in the scheduling of a
new or vacant position to be filled upon the hire of a new
employee.
4. Choice of shifts shall be selected on a seniority basis
upon available vacancy. If no employee volunteers to fill a
vacancy, the least senior employee will be assigned. Employees
shall be given at least two weeks' notice in writing prior to a
change in tour, if possible, with one week's notice being the
minimum.
4. There are five major functional areas of McGuire Air Force Base.
One of these is the Passenger Service division which handles the loading
and offloading of military passengers going overseas or within the
United States, checking in of such passengers, as well as receiving and
loading their baggage.
5. Unit Employee James Graham was employed in the 438th Aerial Port
Squadron as a civilian motor vehicle operator in the Baggage Section
from December 1980 until January 1982. Prior to November 5, 1981 his
basic tour of duty was Monday through Friday, 8:00 a.m. - 4:00 p.m.
6. Unit Employee William H. Pittman was employed in the 438th Aerial
Port Squadron as a civilian motor vehicle operator in the Baggage
Section from July 2, 1956 until April 9, 1982. Prior to November 3,
1981 his basic tour of duty was also Monday through Friday, 8:00 a.m. -
4:00 p.m.
7. Under date of October 28, 1981 /2/ 2nd Lt. Antonio Fornasier,
Officer in charge of Passenger Service, wrote a memo to the President of
the Union re certain work schedule changes that were planned. Fornasier
stated therein that commencing November 15, 1981 Graham's work week
would be Tuesday through Saturday and Pittman's work week would be
Sunday through Thursday. /3/ He further advised the union official that
a meeting would be held on October 30, 1981 at 0800 hours, and the Union
representative was invited to attend at a specified location.
8. Vincent Castellano, executive vice-president of the Union,
received the aforesaid memo on October 29. On the same day he
telephoned Sgt. David M. Graves who was a shift supervisor in the
Baggage Section. Castellano informed the supervisor that he could not
attend the scheduled meeting since it was too short a notice, and he
requested a delay thereof. Graves said he would try to change it but he
couldn't be sure about a postponement. Castellano also stated the Union
wanted to negotiate the change in the work week of Pittman and Graham,
and he asked Graves to send documentation to support the need to change
the tours of duty. /4/
9. Graves testified that, after receiving the call from Castellano,
he spoke to supervisor Sgt. Couch and informed him of the Union's
request to defer the meeting; that Couch told him there would be no
change in the date. The meeting was held, as scheduled, on October 30.
10. Under date of November 5 Castellano sent a memo to Graves
wherein he referred to Fornasier's letter of October 28 and the
conversation with Graves on the following day. He recited therein that
no formal meeting would be held with any employee because the Union
could not make it at the scheduled time; that before work schedules are
changed management would supply the Union with the rationale for the
change. Castellano also stated that the Union demands bargaining "on
the impact of conditions of employment."
11. Respondent's air terminal manager, Major Robert C. Cowan, Jr.,
testified he did not see Castellano's memo, which was dated November 5,
until it was brought to him on November 16 by Couch. Major Cowan then
spoke to Fred Belcher, Chief of the Management Staff, as well as the
Civilian Personnel Office. As a result thereof, a memo dated November
16 was written by Cowan to the Union stating that the meeting re the
changed tour of duty was held on October 30; that since the Union did
not accept the invitation to attend, management assumed it had no
objection to the proposed changes and did not desire to negotiate the
changes; and that the changes in duty schedules for Pittman and Graham
were implemented on November 15. The aforesaid memo was received by
Castellano on November 19.
12. Both Pittman and Graham continued working on their regular
schedule (Monday - Friday, 8:00 a.m. - 4:00 p.m.) until early December.
When Couch noticed Graham at work on a Monday, he inquired why the
employee was working that day since his new schedule was Tuesday through
Saturday. Graham referred to Castellano's letter of November 5 to
management and that nothing had been said to him. Whereupon Couch
stated "You do what we tell you-- not what the Union tells you."
13. On December 6 Couch called Pittman and Graves into his office
and informed them that each individual must work a day on the weekend
because of the workload at that time. Accordingly, Graham commenced
working Tuesday through Saturday, and Pittman began a tour of duty from
Sunday through Thursday. /5/ Graham continued that schedule in the
Baggage Section until January 5, 1982 when he transferred to the Air
Freight Section and works the same schedule. Pittman testified he
continued working until April 9, 1982 when he retired.
14. Orlando H. Bergerson, Labor Relations Officer for 10 years,
testified that, under the past practice, the basic tour (Monday -
Friday, 0745 - 1630) is not a matter of negotiation. Any deviation
thereupon-- which is called an uncommon tour-- would be negotiated. A
reassignment, Bergerson insisted, is a management right. Major Cowan
testified that new tours of duty are to be negotiated, but under past
practice there was no obligation to negotiate with the Union when the
employer reassigned someone from one existing tour to another existing
tour. Belcher testified that when a reassignment occurs, management
notifies the Union as a courtesy or advises them a meeting is scheduled
re that change.
15. Record facts show that on September 24 and October 8 Respondent
wrote Castellano requesting approval of a Tuesday thru Saturday work
week for a Military Personnel Clerk (Typing) in each instance. The
earlier request involved a position recently vacated in the Customer
Service Section, while the later one concerned a position to be vacated
in a few weeks in the Quality Force Section. In both situations
management stated in the letters that an uncommon tour was required to
provide weekend service; that negotiations were requested to permit
merit promotion announcement and initial hire on the uncommon tour for
this position.
16. In explaining why a request was made for merit promotion
announcement as to the typing clerk position, Bergerson testified that
the normal tour for a clerk is Monday through Friday. However, this
particular person would have to work Saturday as 40 percent of the 514
Military Airlift Wing's work occurs on that day. To make a merit
promotion request for replacement or a new hire they made Tuesday
through Saturday as a condition of employment. The individual who
didn't want to work those days could thus know about it before he was
hired. Bergerson explained that this differs from the situation
involving Pittman and Graham; that the tours of duty of the Baggage
Handlers may be uncommon tours of duty and that's in their position
description.
17. The information requested by Castellano, i.e. the rationale to
support the change in the tours of duty of both Pittman and Graham, was
never supplied by management.
Primary issues for consideration are as follows: (1) whether the
reassignment by Respondent of Pittman and Graham from the Monday -
Friday tour of duty to other established tours, without bargaining with
the Union, was violative of the Statute; (2) whether Respondent's
failure to furnish its rationale (via documentation) for such
reassignments was justifiable.
Respondent takes the position that it had no obligation to bargain re
the reassignment of those employees. It contends the tours of duty,
i.e. Monday - Friday, Sunday - Thursday, and Tuesday - Saturday, were
previously negotiated with the Union and were already established.
Further, the employer avers that it was the past practice not to
negotiate reassignments of employees' tours of duty so established.
Respondent also insists that Article 11 of the collective bargaining
agreement governs this situation; that the parties differ as to the
interpretation of the language in the contract, and the proper remedy
lies within the grievance and arbitration procedures, not through an
unfair labor practice.
With respect to the information sought by the Union, it is argued
that the request was vague in nature as well as indefinite; that there
was no showing it was relevant and necessary, nor does it appear that
such data is normally maintained by Respondent in the regular course of
business. /6/
(1) Limitations are imposed in the federal sector upon obligations on
the part of management to negotiate certain matters dealing with the
assignment of employees or positions. Thus, under Section 7106(b)(1) of
the Statute an agency is not required to negotiate "on the number,
types, and grades of employees or positions assigned to any
organizational subdivision, work project, or tour of duty, or on the
technology, methods, and means of performing work." Moreover, the
Authority has held that the decision to establish a second tour of duty,
was encompassed within such statutory language, and was negotiable only
at the election of the agency. U.S. Customs Service, Region V, New
Orleans, Louisiana, 9 FLRA No. 15 (1982).
While recognizing the limitations set forth in Section 7106(b)(1),
General Counsel insists that changing the tour of duty of Pittman and
Graham is not related to or determinative of numbers, types and grades
of employees or positions assigned to as work project or tour of duty.
It cites several cases to sustain this position. However, I am
constrained to conclude that these cases do not govern the case at bar.
Thus, in several of the foregoing the Authority held that starting and
quitting time were not so related or determinative to the items
maintained in said section of the Statute. Hence, the decision to
change such times was a condition of employment which was negotiable,
and an agency could not-- without violating the Statute-- make such
changes unless it gave the union an opportunity to negotiate thereon.
Department of the Treasury, U.S. Customs Service, Region VIII, 9 FLRA
No. 68 (1982); U.S. Customs Service, Region V, New Orleans, Louisiana,
supra.
In the case at bar the starting and quitting times of Pittman and
Graham were not changed. They continued to work from 8:00 a.m. - 4:00
p.m. Although each was assigned to a different tour, record facts
disclose that the Tuesday-- Saturday and Sunday - Thursday tours were
established and in existence.
Moreover, those tours had been implemented after having been negotiated
with the Union herein. The transfer of the two employees from one shift
to another was, in my opinion, in the notice of a reassignment. It was
not a change in the time of a tour of duty for these individuals, which
action would be a bargainable matter. See Internal Revenue Service, Los
Angeles District, 10 FLRA No. 107 (1982). Thus, unless other
considerations prevail, the assignments to other established tours of
duty would be negotiable only at the election of Respondent.
General Counsel adverts to the language in Article 11(2) of the
bargaining agreement in support of its contention that the substance of
the change herein was bargainable. It relies upon the clause which
requires negotiation, before implementation, of any proposed change
which deviates from the basic work week (Monday - Friday), I do not
construe the assignment of Pittman and Graham to the other shifts as
tours to be a deviation from the basic tours of duty. The basic work
week itself was not changed. The other tours were established and did
not constitute a "deviation" from the basic work week. Thus, I am
satisfied that Respondent was not precluded, under this clause in the
agreement, from assigning these employees to a different tour without
negotiating the decision with the Union.
It is also contended by General Counsel that past practice consisted
of negotiating with the Union any changes from one tour to another. In
this respect, it refers to the instances on September 24 and October 8
which Respondent requested approval from the Union for a Tuesday -
Saturday work week for a Military Personnel Clerk. Apart from the fact
that Bergerson testified that these two requests involved merit
promotion approvals-- and were deemed distinguishable from the situation
at hand-- I would find it difficult to conclude they constituted a
practice in that regard. For a practice or procedure to be
characterized as a condition of employment it must have been
consistently exercised for an extended period of time and recognized as
such by management. Social Security Administration, Mid-America Service
Center, Kansas City, MO, 9 FLRA No. 33 (1982), Department of Health,
Education & Welfare, Region V, Chicago, Illinois, 4 FLRA No. 98 (1980).
I am not convinced the two instances hereinabove mentioned are
sufficient to warrant the conclusion that a past practice existed in
requesting approval from, or negotiating with, the Union in assigning
employees from one tour to another.
In sum, I am constrained to find that the decision to change the
tours of duty of Pittman and Graham was not negotiable; that it was
within the language set forth in Section 7106(b)(1) and only bargainable
at the election of the agency. Therefore Respondent's refusal to
bargain thereon was not violative of the Statute.
Despite the fact the Respondent was not obliged to negotiate as to
the decision involving the reassignment of these two employees, it was
incumbent upon the employees to discuss certain aspects thereof with the
Union.
Although an agency may elect not to bargain on some matters, as here,
which relate to a tour of duty, under Section 7106(b)(2) and (3) it
still must negotiate procedures to be observed in implementing the
decisions and arrangements for employees adversely affected thereby.
See U.S. Customs Service, Region V, New Orleans, Louisiana, supra.
Respondent herein would disown any responsibility in this respect
since it argues that the issue is one of contract interpretation, which
should be resolved via a grievance and arbitration rather than by means
of an unfair labor practice proceeding. I disagree. The issues herein
does not involve differing interpretation of the parties' rights and
obligations arising from the collective bargaining agreement. While the
General Counsel would seemingly rely on Article 11 to bolster its
contention, there is no allegation of breach of contract by Respondent.
Further, the basic issue herein, i.e. the obligation to bargain re the
change in tours of duty, does not rise or fall based on an
interpretation of the bargaining agreement. Contrariwise, the issue
raised by the complaint rests upon a right guaranteed under the Statute
and independent of the collective bargaining agreement itself. See
Internal Revenue Service, Western Region, San Francisco, California, 11
FLRA No. 112 (1983).
It is further asserted by Respondent that no substantial impact
resulted from the change in the tours of duty of Pittman or Graham. The
effect of such action is alleged to be de minimis, and therefore it is
said management should not be faulted for its refusal to negotiate as to
the impact and implementation of its actions. In support thereof
Respondent cites the decision of the Administrative Law Judge in Social
Security Administration, Baltimore, MD, Case No. 8-CA-20003 (1982).
That case, however, is clearly distinguishable from the one at bar. In
the cited case one employee, Barbara Beatty, was detailed for 2 weeks
and not as a permanent transfer or reassignment. Moreover, it was a
voluntary action on the part of the employee. In the case at bar the
changing of tours of duty, which resulted in Pittman and Graham working
certain different days-- one of which included a Saturday or Sunday--
can scarcely be deemed insignificant or de minimis.
Based on the foregoing, I conclude that Respondent was obliged to
negotiate with the Union as to the procedures to be observed, as well as
appropriate arrangements for these employees (Pittman and Graham)
adversely affected by the change in their tours of duty. Their refusal
to do so was violative of Section 7116(a)(1) and (5) of the Statute.
/7/
(2) In respect to the obligation to furnish requested information to
the Union, it is contended by the General Counsel that the same was
relevant and necessary for the bargaining representative to perform its
representational dates. It is argued that since the employer determined
a need existed to change the tours of Pittman and Graham this
determination was based upon information gathered in the normal course
of business. Thus, the Union was entitled to same in order to bargain
re the change made by Respondent.
It is true that, under Section 7114(b)(4) an agency is obliged to
furnish the bargaining representative data which is maintained in the
regular course of business and is reasonably available and necessary for
full discussion and negotiation. That data, however, must be relevant
to the performance of the union's functions. Director of Administration
Headquarters, U.S. Air Force, 6 FLRA No. 24 (1981). In the cited case
the union sought information to administer a contract provision re
replacement of civilian personnel. In view of the fact that no
employees had been displaced, the data sought had no relevance, and the
agency was not required to furnish the requested information. The
situation at hand is analogous. Data sought herein pertained to the
need for changing the tours of duty of Pittman and Graham and the
rationale for such decision. Since the Respondent was under no duty to
negotiate that decision and was free to do so at its election, the basis
for the decisions-- which was sought by the Union-- is not relevant to
any bargaining re its impact and implementation. Had the request been
for information relating to the adverse effect upon Pittman and Graham,
the conclusion might be otherwise. accordingly, i conclude Respondent
did not violate the Statute by failing to supply the information
requested by Castellano in respect to the change of tours of duty of the
said employees.
An issue is posed as to whether a status quo ante remedy is
appropriate under the circumstances herein. While management may change
assignments of tours of duty at its election, its obligation to bargain
re the impact and implementation thereof may call for such a remedy.
Federal Correctional Institution, 8 FLRA No. 111 (1982). In order to
determine the appropriateness thereof in the instant matter,
consideration has been given to various cases wherein the Authority has
noted its views concerning a status quo remedy with respect to impact
and implementation bargaining.
In Bureau of Government Financial Operations Headquarters, 11 FLRA
No. 68 (1983) nine clerks in the employer's Claims Adjudication Branch
were reassigned to the Adjudication Control Branch. It was held that
the duty to negotiate the impact and implementation of the transfer did
not warrant a status quo ante remedy. The Authority agreed with the
Administrative Law Judge that such a remedy would result in "potential
hardships and disruptions." Similarly, in Headquarters, 77th U.S. Army
Command Fort Totten, N.Y., 9 FLRA No. 95 (1982) changing a workshift
from Monday - Friday to Tuesday - Saturday, which involved and affected
30 employees, did not warrant such a remedy. The Authority concluded
that balancing the nature of the violation against the degree of
disruption likely to be caused by a status quo ante remedy, it would
effectuate the Statute to issue only a prospective bargaining order. To
the same effect see United States Department of Defense, Department of
the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112 (1982)
which involved removing auditing duties from three payroll clerks and
creating three auditing clerk positions.
Since employee Pittman retired on April 9, 1982, there is only one
individual-- Graham-- involved in any return to the status quo herein.
The record does not reflect that any disruption of government business
will result if this employer reverts to the Monday - Friday tour of
duty. Thus, the situation at hand is strikingly dissimilar from those
presented in the foregoing cases where granting a status quo ante remedy
would seriously impair operations of the agency. It is also noted that
employee Graham is now working in a different section /8/ -- Air
Freight-- and it may well be that a Monday - Friday tour does not
prevail thereat. Further, the employee may not desire to reform to such
tour in his new area of employment. Accordingly, I shall qualify the
remedy in that respect so as to afford him the option of such return if
the Monday - Friday tour of duty exists at the Air Freight Section.
Having concluded that Respondent violated Section 7116(a)(1) and (5)
of the Statute, I recommend the Authority issue the following:
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, it is
hereby ordered that the McGuire Air Force Base, United States Air Force,
Department of Defense shall:
1. Cease and desist from:
(a) Instituting any changes in the tours of duty of employees
without notifying the American Federation of Government Employees,
Local 1778, AFL-CIO, or any other exclusive representative, and
affording it an opportunity to negotiate concerning the procedures
to be utilized in implementing such decision and/or appropriate
arrangements for employees adversely affecting by such decision.
(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 effectuate the
purpose and policies of the Federal Service Labor-Management Relations
Statute:
(a) Restore and return James Graham, upon his request, to the
tour of duty, Monday thru Friday, 8:00 a.m. - 4:00 p.m., provided
that said tour exists at his present work section and location.
(b) Notify the American Federation of Government Employees,
Local 1778, AFL-CIO, the exclusive bargaining representative of
its employees, of any intention to change the tours of duty of its
employees, and upon request, negotiate with it concerning the
procedures to be observed in changing tours of duty of its
employees and/or appropriate arrangements for employees adversely
affected by such changes in tours of duty.
(c) Post at its facilities at the Air Terminal Complex,
Wrightstown, New Jersey, the attached notice marked "Appendix" on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of the forms, they shall be signed by the Air
Terminal Manager, and they shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. The Air
Terminal Manager shall take reasonable steps to insure that the
notices are not altered, defaced, or covered by any other
material.
(d) Pursuant to Section 2423.20 of the Authority's Rules and
Regulations, notify the Acting Regional Director of Region II, 26
Federal Plaza, Room 24-104, New York, N.Y. 10278, in writing,
within 30 days from the date of this Order as to what steps have
been taken to comply herewith.
/1/ Subsequent to the hearing the Union filed its own brief, although
it did not enter a separate appearance at the hearing through a
representative or counsel. Respondent filed "Objections To The Union
Brief" dated April 12, 1983. It averred that Attachments 1 and 2 to the
Union brief involved settlements in a prior case which have no relevancy
herein and do not pertain to his proceeding. Respondent maintains that
the other Attachments (3-7) are attempts to introduce evidence via a
brief rather than at the hearing and should have been introduced
thereat. With respect to Attachments 1 and 2, the undersigned rejects
same as irrelevant to the case at bar and outside the scope of the issue
herein. With respect to Attachment 4-7 in the Union's brief, those are
rejected as evidentiary matter which should have been introduced at the
hearing. Attachment 3, is an Air Force Regulation published on July 12,
1978, and which is a matter of record. The undersigned will accept same
as part of the Union's brief.
/2/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1981.
/3/ Three established main tours of duty at the time (which had been
negotiated with the Union) were Monday - Friday, Tuesday - Saturday, and
Sunday - Thursday. Two other civilian employees who worked the same
type job as Pittman and Graham also worked one day of a weekend.
/4/ There is a slight variance between the versions of the two
participants as to the conservations. The factual findings set forth in
respect thereto are as credited by the undersigned.
/5/ Couch permitted Pittman, as senior employee, to choose which day
he wanted to work on the weekend.
/6/ Apart from the principal contention, it is urged that management
did not receive the request until after the implementation of the
reassignment. Thus, Respondent maintains the furnishing of the data is
moot.
/7/ Respondent maintains it assumed the Union did not want to
negotiate the contemplated changes since it did not see the Union's
letter until after implementation of the change. This defense is
rejected. Castellano told management on October 29 it wanted to
negotiate the change and so stated in its letter of November 5. There
is some dispute re the date when the said letter was received by
Respondent. I credit Castellano's testimony that it was mailed on
November 5, and will presume it was received in the ordinary course of
business. Further, the fact that Cowan did not see it before November
16 does not rebut this presumption. Moreover, no clear and unmistakable
waiver of the Union's bargaining rights appear herein. See Dept. of Air
Force, Scott Air Force Base, ILL., 5 FLRA No. 2 (1981).
/8/ This transfer is not the basis of any unfair labor practice
allegation herein.
James A. Harper, Esq.
Steve N. Sherwood, Capt. USAF, For the Respondent
Robert J. Fabii, For the General Counsel
WE WILL NOT institute any changes in the tours of duty of employees
without notifying the American Federation of Government Employees, Local
1778, AFL-CIO, or any other exclusive representative, and affording it
an opportunity to negotiate concerning the procedures to be utilized in
implementing such decision and/or appropriate arrangements for employees
adversely affected by such decision.
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 restore and return James Graham, upon his request, to the
tour of duty, Monday thru Friday, 8:00 a.m. - 4:00 p.m., provided that
said tour exists at his present work section and location.
WE WILL, notify the American Federation of Government Employees,
Local 1778, AFL-CIO, the exclusive bargaining representative of our
employees, of any intention to change the tours of duty of our
employees, and upon request, negotiate with it concerning the procedures
to be observed in changing tours of duty of our employees and/or
appropriate arrangements for employees adversely affected by such
changes in tours of duty.
. . . (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
Acting Regional Director, Region II, Federal Labor Relations Authority
whose address is: 26 Federal Plaza, Room 24-104, New York, N.Y., 10278
and whose telephone number is: (212) 264-4934.
29 FLRA-ALJ; Case No. 2-CA-20072 July 21, 1983
U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent and AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1917, AFL-CIO, Charging Party
Before: SALVATORE J. ARRIGO, Administrative Law Judge
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.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Local 1917, AFL-CIO (herein referred to as the
Union) on October 29, 1981 against the U.S. Immigration and
Naturalization Service (herein referred to as Respondent), the General
Counsel of the Authority, by the Acting Regional Director of Region II,
issued a Complaint and Notice of Hearing on August 23, 1982. The
Complaint alleged that on or about October 28, 1981 Respondent conducted
a formal discussion with employees without prior notice to the Charging
Party or affording it an opportunity to be present during which time
Respondent made statements which "denigrated" the Union and its
representatives.
The General Counsel contends such conduct violates section 7116(a)(1),
(5) and (8) of the Statute.
A hearing on the Complaint was conducted on January 12, 1983 at which
time all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent, the Charging Party and the
General Counsel and have been duly considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
At all times material herein the Union has been the exclusive
collective bargaining representative for various of Respondent's
employees located in Respondent's New York District. The District's
Investigations Branch is located at 26 Federal Plaza, New York City on
the 9th and 11th floors. The investigations Branch is under the
supervision of Rene B. Albina, Assistant District Director for
Investigations.
On October 28, 1981 Assistant District Director Albina conducted a
meeting of all Investigations Branch employees were located a week or
more prior to October 28 and all employees were notified that attendance
was mandatory. Other then assembling employees for introduction to
Albina shortly after he became the Assistant District Director for the
Branch in June 1981, Albina had not conducted a meeting of all Branch
employees before this meeting or indeed, at anytime thereafter. /1/ The
meeting of October 28 was attended by 150 to 175 employees and lasted
approximately 25 minutes. During his presentation Albina referred to
notes on matters he wished to cover. Since all Branch employees
including approximately 15 supervisors were present, Albina's
supervisory status over employees present at the meeting ranged from
first level to fifth level of supervision.
Although the Union informed Respondent in writing in January 1981
that the Local Union President, or in his absence an alternate, was
designated to receive all formal notices, /2/ no such notice was given
the Local Union President nor was any notice of the meeting given
directly to the Union or any Union officer in his representational
capacity. However, while not invited as Union officials to the meeting,
the following Union officers, who were also Investigations Branch
employees, were present at the October 28 meeting: Carl Johnson, Local
Union First Vice President; Charles Murphy, Local Union Legislative
Representative (public relations officer); and three stewards. /3/
According to the credited testimony, during the meeting of October
28, 1981, Assistant District Director Albina addressed various topics.
/4/ He began by commenting that while this was the first time he called
a Branch-wide meeting and he didn't expect to do it too often, he might
be calling such meetings in the future to get across his "message" to
employees on various matters. Albina indicated he was pleased that
productivity in the Branch had increased and employee's dress and
appearance had improved. However, Albina was critical of employees who
engaged in outside activities, such as attending law school. According
to Albina, these employees demonstrated a lack of dedication and
commitment.
During the meeting Albina also discussed tardiness, leave policy and
the use of government automobiles in connection with employees claiming
administratively uncontrollable overtime. He stressed that government
vehicles were to be used in connection with investigations and not to be
used to conduct personal business nor to supply transportation from home
to office. In this regard Albina indicated guidelines as to the
circumstances when claiming administratively uncontrollable overtime
would be justified and when it would constitute an abuse of policy.
Albina then discussed matters concerning Union representation of
employees. Albina began by recounting his problem free relationship and
dealings with unions at his prior duty stations in San Juan, Puerto
Rico, Hartford, Connecticut and Washington, D.C. Albina then stated
that the New York District was the only place that he ever worked where
he found that the Union was "obstructionist" and not helpful in its
dealings with management and not helping the employees. Albina then
indicated that he was the boss and would not allow the Union to tell how
to run the office.
Albina conveyed to the audience that since Local 1917 was
obstructionist compared to the other unions he had been associated with
previously, he intended to rigidly abide by the terms of the collective
bargaining agreement, with which he was thoroughly familiar. He went on
to state that while he was always ready to talk to an employee on a
personal problem, if the matter was job related involving the assistance
of a Union representative then his door would be open to them only after
the "chain of command" had been strictly followed, beginning with taking
the problem to the employee's first line supervisor and succeeding
supervisors before bringing the matter to him. If the employee and
Union representative came to him before previously bringing the problem
to the subordinate supervision, Albina indicated he would figuratively
"throw them out" of his office. Albina went on to state that employees
should not expect him to act immediately on grievance simply because
they were standing "outside (his) door." Albina specifically referred to
a situation that had arisen some time previously where an employee and a
Union representative came to his office with a problem late in the day,
unannounced, and Albina refused to meet with them. /5/ According to
Albina, the problem was actually "no problem" since it had been resolved
by a first and second line supervisor earlier in the day and the
employee and Union representative were not aware of this because they
had not approached the supervisors.
With regard to his adherence to the terms of the contract, Albina
stated he would strictly follow the time limits relative to providing
him time to respond to grievances. Thus, even if he could fashion a
response to a matter in less than 5 days, if the agreement gave him 5
days to respond he would take the full period before providing his
answer. Albina acknowledged that employees had the right to file
grievances and urged those in attendance to read the contract informing
them that if they did not have a copy, a copy of the contract was
available at each supervisor's office.
At the conclusion of his speech Albina inquired if there were any
questions. Union Vice President Johnson asked Albina if he was going to
distribute copies of the contract to employees. Albina replied that he
wasn't but employees could see a copy of the agreement in a supervisor's
office, adding that the employee shouldn't "take all day" to read the
contract. Johnson stated that the contract mandated that the employer
distribute a copy of the contract to each employee, an arbitrator had
ordered the distribution and the contract had been distributed in other
Districts. Johnson then asked if the contract was ever going to be
distributed in the New York District. Albina replied that the question
of distribution of the contract was a national issue and not appropriate
for that meeting. /6/ Johnson pursued the matter and asked why
management couldn't comply with the contract if it was going to insist
on employees complying with the terms of the contract. At this point
Albina commented that this was an example of what he meant by an
obstructionist Union official, threw the pen he was holding into the
air, and ordered Johnson to leave the floor. As Johnson began to leave
Albina announced that the meeting was over.
Issues
Counsel for the General Counsel and the Union contend: the meeting
of October 28, 1981 was a formal discussion within the meaning of
section 7114(a)(2)(A) of the Statute; /7/ Respondent failed to give
notice of the meeting to the Union and afford it an opportunity to have
a representative of its choosing present, thereby violating section
7116(a)(1), (5) and (8) of the Statute; /8/ and Assistant District
Director Albina made statements at the meeting which "denigrated" the
Union and its representatives and made statements which had the
reasonably foreseeable effect of "chilling" bargaining unit employee
exercise of protected activity, thereby violating section 7116(a)(1) of
the Statute.
Respondent maintains the meeting of October 28 was not a formal
discussion within the meaning of the Statute and contends that, in any
event, under the circumstances herein, notice of the meeting given to
employees which included Union representatives who attended the meeting
satisfied the notice requirements of section 7114(a)(2)(A) of the
Statute. Respondent further contends that Assistant District Director
Albina's statements made to employees on October 28 did not violate the
Statute and were, at most, expressions of personal opinion.
I find and conclude that the October 28, 1981 meeting was a formal
discussion within the meaning of section 7114(a)(2)(A) of the Statute.
Albina was high in Respondent's management heirarchy, being the fifth
level supervisor to some employees in attendance. The meeting was
mandatory for all Branch employees including supervisors, notice of the
meeting having been promulgated at least a week previously and
assembling all Branch employees for such a meeting was very unusual.
The matters Albina covered-- productivity, employee appearance,
commitment to the job, tardiness, leave policy, overtime policy and use
of the contractual grievance machinery clearly concerned personnel
policies or practices or other general conditions of employment.
Obviously, Albina envisioned a discussion on some of these matters since
he solicited questions from employees. However, the contentions
discussion with Union Vice President Johnson concerning Respondent's
compliance with a collective bargaining clause relative to management's
obligation to distribute the contract to employees resulted in Albina
abruptly terminating the meeting. In these circumstances I find and
conclude the meeting of October 28 constituted a "formal discussion"
within the meaning of the Statute.
Department of Health and Human Services, Social Security Administration,
Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24
(1982); and Department of Health, Education and Welfare, Region IV,
Atlanta, Georgia, et al., 5 FLRA No. 58 (1981).
I further find and conclude that Respondent failed to provide the
Union with appropriate notice of the October 28 meeting. In the case
herein, Respondent was notified in January 1981 that the Union's
President was the proper person to receive "formal notices," which I
interpret to include notices of formal discussions. However, the
President of the Union was not given notice of the October 28 meeting
nor was the Union, qua Union, notified. The Authority, citing United
States Air Force, Air Force Logistics Command, Aerospace Guidance and
Metrology Center, Newark, Ohio, 4 FLRA 512 (1980) stated in Norfolk
Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74 (1981) at 76:
" . . . section 7114(a)(2)(A) requires that a Union 'be given
the opportunity' to be represented during formal discussions
involving conditions of employment. This clearly contemplates
prior notice to the Union so that, inter alia, the Union will
have
an opportunity to select representatives of its own choosing to be
present. There is no evidence in this case that the Respondent in
any way gave such notice to the Union of the formal meetings of
March 1, 1979. The mere fact that employees who were present at
these required meetings involving working conditions also happened
to be union stewards does not lead to a contrary conclusion, for
they clearly were not in attendance as union representatives."
The above language of the Authority is applicable to the facts
herein.
Respondent relies on the holding of the court in United States Air
Force, et al. v. FLRA, 681 F.2d 466 (6th Cir. 1982), denying enforcement
of the Authority's decision in United States Air Force, Air Force
Logistics Command, supra. The Court of Appeals held that notice of a
meeting to an employee who also happens to be a steward satisfied the
requirement that the union therein receive notice of a formal meeting.
However, in that case the steward was the individual designated by the
union to receive notice of such meetings. In any event, I am
constrained to follow the holdings of the Authority until such time as
they are reversed or modified by the Authority or by the Supreme Court
(Michigan Army National Guard, Lansing, Michigan, 11 FLRA No. 74 (1983)
and the Authority, after the Sixth Circuit decision, has indicated it
was adhering to its holding in United States Air Force, Air Force
Logistics Command, supra. See Department of Health and Human Services,
Social Security Administration, Field Assessment Office, Atlanta,
Georgia, 11 FLRA No. 78 (1983).
Accordingly, since neither the President of the Union nor indeed the
Union or any of its officers, as officers, received notice of the
meeting, I conclude that by its failure to provide the Union with
appropriate notice of the October 28, 1981 meeting Respondent violated
section 7116(a)(1), (5) and (8) of the Statute. /9/
With regard to the remaining allegations, counsel for the General
Counsel contends that statements made by Assistant District Director
Albina at the October 28 meeting "denigrated" the Union and its
representatives and coerced employees in violation of section 7116(a)(1)
been found by the Authority to be impermissible under Executive Order
11491, as amended. Veterans Administration Hospital, Shreveport,
Louisiana, 1 FLRA 384 (1979); and U.S. Customs Service, Region IV,
Miami, Florida 1 FLRA 943 (1979). There is no reason to believe the
Authority would hold otherwise is a case arising under the Statute. See
also Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base,
Oklahoma, 6 FLRA 167 (1981), comment of Administrative Law Judge Devaney
that a statement disparaging the Union made by a manager to the effect
that he hated to see an employee waste his money by paying union dues
would, if generally disseminated, have violated the Statute.
In the case herein Albina openly expressed his hostility towards the
Union by labeling the Union "obstructionist" and not helpful to
employees." Albina followed up that declaration by informing Branch
employees that because of his view of the Union, he would take full
advantage of strictly adhering to the terms of the collective bargaining
agreement, including using the full time allowed him in issuing his
responses to grievances, even if such time was not warranted.
In all the circumstances herein I conclude that Albina's statements
indicating a more strict adherence to the terms of the contract and his
remarks regarding using the full time the contract allowed for
responses, even where not warranted, constituted threatening employees
with reprisal because of hostility towards the Union in violation of
section 7116(a)(1) of the Statute. I also conclude that Albina's
comments characterizing the Union as obstructionist and not helpful to
employees, which judgment he indicated precipitated his announced "more
strict adherence" policy found to be violative of the Statute, in such
circumstances constituted impermissible disparagement of the Union
violative of section 7116(a)(1) of the Statute. /10/
In the oft cited words of Judge Lerned Hand in N.L.R.B. v. Federbush
Co., Inc., 112 F.2d 954, 957 (2nd Cir. 1941):
"Words are not pebbles in alien juxtaposition; they have only
a communal existence; and not only does the meaning of each
interpenetrate the other, but all in their aggregate take their
purport from the setting in which they are used, of which the
relation between the speaker and the hearer is perhaps the most
important part. What to an outsider will be no more than the
vigorous presentation of a conviction to an employee may be the
manifestation of a determination which is not safe to thwart."
Further, I reject Respondent's contention that Albina's statements
were mere expressions of his personal opinion privileged under section
7116(e) of the Statute. /11/ Albina, who was in charge of all
investigation functions in the New York District, represented management
in its dealings with Investigations Branch employees, required all
employees to attend the meeting and expressed the sentiments found
violative of the Statute in such circumstances as to clearly convey the
attitude of management and not his "personal" convictions.
Indeed, even if Albina were to have expressly stated that he was giving
only his "personal opinion" when delivering his speech on October 28, in
my view it would be difficult, if not impossible, to convince the
assembled employees that the Assistant District Director for the
Investigations Branch was expressing opinions on labor relations matters
different from the employer or its management. /12/ In any event, I
conclude Albina's comments did contain a threat of reprisal, supra, and
are therefore not privileged. Accordingly, I find Respondent's
contention in this matter to be without merit. See Department of the
Army, Fort Bragg Schools, 3 FLRA 363 (1980) and Federal Mediation and
Conciliation Service, 9 FLRA No. 31 (1982), footnote in Authority
Decision and Order.
In view of the entire foregoing I recommend that the Authority issue
the following:
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the U.S. Immigration and Naturalization
Service shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions with bargaining
unit employees without first providing, by appropriate advance
notice, the American Federation of Government Employees, Local
1917, AFL-CIO, the exclusive bargaining representative, an
opportunity to be represented at such formal discussions.
(b) Threatening employees with reprisals because of hostility
towards the American Federation of Government Employees, Local
1917, AFL-CIO, the employees exclusive representative or making
disparaging remarks to unit employees about the American
Federation of Government Employees, Local 1917, AFL-CIO.
(c) In any like or related manner, interfacing 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 Federal Service Labor-Management Relations
Statute:
(a) Post at its Investigations Branch, located at 26 Federal
Plaza New York City, 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 Director of
the New York District and shall be posted and maintained by him
for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The District Director 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 Acting Regional Director, Region II,
Federal Labor Relations Authority, 26 Federal Plaza, Room 24-102,
New York, New York 10278, in writing, within 30 days from the date
of this Order, as to what steps have been taken to comply
herewith.
/1/ The employees on the 9th floor comprise one Section of the Branch
and employees on the 11th floor another. Section meetings are held on
every payday and while Albina does not conduct Section meetings, he
attempts to be present during each of these meetings to "answer any
questions (or) clarify any points." Further, only two or three
Branch-wide meetings have been held since 1973.
/2/ Such designation was customarily given to Respondent in January
of each year for some undisclosed period of time.
/3/ Subsequent to the meeting of October 28, Johnson was given a
"rating" by Respondent which he grieved. During an arbitration
proceeding concerning this matter Johnson indicated that his immediate
supervisor informed him that statements Johnson made at the October 28
meeting were, in part, responsible for his rating. At the arbitration
Johnson was asked: "When you made this statement (sic) at the meeting,
was it in your capacity as a union official?" Johnson responded, "Yes,
it was."
/4/ The following version of what occurred at the October 28 meeting
is a synthesis of the credited portions of the testimony of Johnson,
Murphy and Albina. The three accounts vary to some extent in what was
said at the meeting, however, numerous factors including the passage of
time from the occurrence to the presentation of testimony on the matter
may well cause divergent accounts to be offered by witnesses. See
Department of Health and Human Services, et al., 5 FLRA No. 63 (1981),
Decision of the Administrative Law Judge, fn. 2. While I have credited
"some and not all" of the testimony of each witness, such is not unusual
in judicial and quasi-judicial decisions. Universal Camera Corp., 179
F.2d 749, 754 (2nd Cir. 1950). In any event, my findings herein are
based upon the plausibility of each version, my evaluation of the
witnesses testimony taken as a whole and my observations of the demeanor
of the witnesses.
/5/ At the hearing Albina admitted under cross-examination that this
incident "may have prompted" his decision to speak about the Union and
compare the Union to other unions he previously worked with "in a
negative light."
/6/ Throughout their colloquy both Albina and Johnson reflected
escalating excitement and anger in their voices.
/7/ Section 7114(a)(2)(A) provides:
"(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or
more representatives of the agency and one or
more employees in the unit or their representatives
concerning any grievance or any personnel
policy or practices or other general condition
of employment"--
/8/ The relevant portions of section 7116(a) provide:
"(a) . . . it shall be an unfair labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter."
/9/ I do not find Johnson's testimony given in the arbitration
session, supra, warrants a different conclusion. Thus, although during
the arbitration proceeding Johnson indicated he was speaking during the
October 28 meeting in his capacity as a Union official, Johnson did not
receive notification of the meeting as a Union official and, more
importantly he was not the official selected to represent the Union at
the meeting.
/10/ In view of the foregoing and since a finding of violation, if
made, would not substantially alter the remedy proposed herein, I need
not determine whether Albina's ordering Union Vice President Johnson to
leave the meeting, in the peculiar circumstances of that heated
confrontation, was an independent violation of the Statute.
/11/ Section 7116(e) provides:
"(e) The expression of any personal view, argument, opinion or
the making of any statement which--
"(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
"(2) corrects the record with respect to any false or
misleading statement made by any person, or
"(3) informs employees of the Government's policy relating to
labor-management relations and representation,
shall not, if the expression contains no threat of reprisal or
force or promise of benefit or was not made under coercive
conditions, (A) constitute an unfair labor practice under any
provision of this chapter, or (B) constitute grounds for the
setting aside of any election conducted under any provisions of
this chapter.
/12/ But see Norfolk Naval Shipyard, Portsmouth, Virginia, 5 FLRA No.
105 (1981) dealing with the Shipyard Commander's newspaper article.
Joseph L. Mangiulli, For the Respondent
Carl I. Johnson, Esq., For the Charging Party
Steven Sharfstein, Esq., For the General Counsel
WE WILL NOT hold or conduct formal discussions with bargaining unit
employees without first providing, by appropriate advance notice, the
American Federation of Government Employees, Local 1917, AFL-CIO, the
exclusive bargaining representative, an opportunity to be represented at
such formal discussions.
WE WILL NOT threaten employees with reprisals because of hostility
towards the American Federation of Government Employees, Local 1917,
AFL-CIO, the employees exclusive bargaining representative or make
disparaging remarks to unit employees about the American Federation of
Government Employees, Local 1917, AFL-CIO.
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.
. . . (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
Acting Regional Director, Region II, Federal Labor Relations Authority
whose address is: 26 Federal Plaza, Room 24-102, New York, New York
10278; and whose telephone number is: (212) 264-4934.
29 FLRA-ALJ; Case No. 3-CA-30215 June 23, 1983
U.S. DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, Respondent, and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2872, AFL-CIO,
Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
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, Fed.
Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
1981, 5 CFR Chapter XIV, Part 2411, et seq.
Pursuant to a charge filed on January 5, 1983, by Local 2782,
American Federation of Government Employees (AFL-CIO), (hereinafter
called the AFGE or Union), a Complaint and Notice of Hearing was issued
on March 18, 1983, by the Regional Director for Region III, Federal
Labor Relations Authority, Washington, D.C. The Complaint alleges that
the U.S. Department of Commerce, Bureau of the Census (hereinafter
called the Bureau of the Census or Respondent), violated Section
7116(a)(1) of the Federal Service Labor-Management Relations Statute
(hereinafter called the Statute), by virtue of the actions of a
supervisor in making statements to an employee/chief steward which had a
reasonable tendency to interfere with, restrain, and coerce such
employee in the exercise of the rights accorded him by Section 7102 of
the Statute.
A hearing was held in the captioned matter on April 28, 1983, in
Washington, D.C. All parties were afforded the 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 June 13, 1983, which have
been duly considered.
Upon the basis of the entire record, /1/ including my observation of
the witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
The Union is the exclusive representative of a unit of employees
working at Respondent's Suitland, Maryland installation. Mr. Edward
Hanlon, who is employed by Respondent as a Grade 12, Statistician
Demographer in Respondent's Population Division, has been the Union's
Chief Steward since March of 1982. From October 1981 to March of 1982
Mr. Hanlon held the position of Union Steward. Additionally, Mr. Hanlon
acted as Chief Negotiator during January and February of 1982 when the
Bureau of Census was involved in a substantial reduction in force.
Subsequently, Mr. Hanlon acted as "Lead representative" for some 225
appeals filed with the Merit Systems Protection Board concerning the
reduction in force.
In his position as Chief Steward for the Union, Mr. Hanlon is
responsible for filing unfair labor practice charges and grievances on
behalf of the Union. /2/ According to the uncontested testimony of Mr.
Hanlon, he filed approximately two dozen unfair labor practice charges
and approximately 25-30 grievances during the year 1982. Many of the
unfair labor practice charges and the grievances were discussed by Mr.
Hanlon with Mr. Roger Herriot, Chief of the Population Division. Mr.
Herriot is also Mr. Hanlon's third line supervisor.
Mr. Fred Cavanaugh is Mr. Hanlon's first line supervisor and Mr.
Richard Engles, the Assistant Division Chief for Population Estimates
and Projections, is Mr. Hanlon's second line supervisor.
On November 24, 1982, Mr. Hanlon, in his capacity as Chief Steward,
served Mr. Herriot through his secretary with a copy of an unfair labor
practice charge which alleged that the Respondent had violated Section
7116(a)(5) of the Statute by physically relocating some eight employees
of the Population Division "without giving the Union an opportunity to
complete bargaining on the impact and implementation of the change." /3/
According to Mr. Hanlon, it was always his practice to serve copies of
unfair labor practice charges on the responsible officials of Respondent
prior to formally filing the charges with the FLRA so that the
responsible official would have an opportunity to reconsider his actions
and correct the alleged unlawful situation.
On November 25, 1982, at approximately 9:30 a.m., the start of Mr.
Hanlon's shift, Mr. Hanlon, pursuant to a telephone message on his
telephone, returned an 8:15 a.m. telephone call from Mr. Herriot.
According to the testimony of Mr. Hanlon, Mr. Herriot started off the
conversation by telling him that he had received and read the charge and
that he was very angry with Mr. Hanlon for having filed the charge. He
then told Mr. Hanlon that his facts were inaccurate and that his, Mr.
Herriot's, name should appear on the charge in place of Ms. Hope, his
administrative assistant, since he, Mr. Herriot, was responsible for her
actions. /4/ Mr. Herriot went on to tell Mr. Hanlon that he should not
be using official time for filing unfair labor practice charges. Mr.
Herriot complimented Mr. Hanlon and the Union for the good work they had
been doing with respect to representing the various employees who had
been downgraded or riffed and acknowledged that official time was
justified for such activity. Mr. Herriot then stated that since the RIF
was over, it was business as usual and Mr. Hanlon was being paid to work
and not "being paid to file charges." Further, according to Mr. Hanlon,
Mr. Herriot informed him that he, Mr. Herriot, was offended as a
taxpayer, citizen and manager that Mr. Hanlon was causing trouble by
filing the charge; that the employee named in the charge was happy with
the existing situation and that Mr. Hanlon was causing trouble and that
he, Mr. Herriot, realized after seeing the charge that Mr. Hanlon was
not doing his work and that "it was time to crack down on my use of
official time."
During the November 25th telephone conversation Mr. Hanlon and Mr.
Herriot also discussed Mr. Hanlon's Work Plan for fiscal year 1983 that
had been presented to Mr. Hanlon a week earlier by his supervisor
Frederick Cavanaugh. Upon being presented with the Plan Mr. Hanlon had
informed Mr. Cavanaugh that he could not complete every goal in the Work
Plan in timely manner "because of the amount of official time I was
using." The meeting with Mr. Cavanaugh ended with an agreement that Mr.
Cavanaugh would talk to Mr. Herriot about the Work Plan.
Just prior to the termination of the telephone conversation on
November 25, 1982, according to Mr. Hanlon, Mr. Herriot informed him
that he had discussed Mr. Hanlon's 1983 Work Plan with Mr. Cavanaugh and
that he was of the opinion that the Plan was satisfactory and he, Mr.
Herriot, was not willing to change it in anyway.
Following the end of the telephone conversation Mr. Hanlon drafted a
memorandum to Mr. Herriot and delivered it to Mr. Herriot's secretary on
or about November 26, 1982. Mr. Herriot never responded to the
Memorandum which reads as follows:
Mr. Fred Cavanaugh, my immediate supervisor has proposed a work
plan for me to which I object. The standards lack specificity,
hence I do not know what is required of me. In particular I am
concerned with the overuse of the phrase-- in a timely manner or
words to that effect. I fear that the emphasis is not on
designing an adequate work plan, but on restricting my legal right
as Chief Steward to engage in representational activities. I know
Fred is concerned about the work; however, after talking with you
today and the remarks that you made, which I view as clearly
threatening; I have come to the conclusion that a prime
motivation on your part is to interfere with, restrain, and coerce
me in the exercise of my rights. I am sorry that you do not favor
all the causes we as a Union choose to follow, and I am sorry that
you are so irritated with ULP I filed against you and other
division personnel today. I am also sorry that you as a taxpayer
feel offended with the amount of time I spend on Union activities.
Lastly, I am sorry that you as a manager feel obligated to 'crack
down' on these activities. These and other expressions of
discontent you made during our phone conversation are in my
opinion a violation of 5 USC 7116.
The Union cannot allow its stewards and officers to be
intimidated. In no way can the Union allow its Chief Steward to
be restrained, coerced and intimidated.
The Chief Steward's role is central to carrying out the Union's
legal representational functions. I think you should reconsider
your position before you willfully violate federal labor law.
Mr. Herriot acknowledged having the November 25th telephone
conversation with Mr. Hanlon and also receiving the unfair labor
practice charge and the November 26, 1982 memorandum from Mr. Hanlon.
According to Mr. Herriot his telephone call to Mr. Hanlon was
prompted solely by an earlier conversation with Mr. Engle and Mr.
Cavanaugh, Mr. Hanlon's first and second line supervisors, respectively,
wherein Mr. Hanlon's objections to his 1983 Work Plan were discussed.
Having concluded that since the RIF and problems concerned therewith
were over, Mr. Hanlon should be able to complete his 1983 Work Plan in a
timely manner, he decided to call Mr. Hanlon and impress upon him the
fact that he, Mr. Herriot, backed the Plan submitted by his first and
second line supervisors. According to Mr. Herriot at the start of the
conversation I "indicated that I understood that he (Mr. Hanlon) had
some problems with his Work Plan and that there was a disagreement about
perhaps the amount of time that he had available to work on his regular
job, and I wanted to make sure that he understood what I expected of him
during this next year." Mr. Hanlon interrupted and asked if the
telephone call "was predicated by the fact that I (had) gotten a ULP on
another matter from him that morning." When Mr. Herriot acknowledged
seeing the ULP and denied that the charge had anything to do with his
telephone call, Mr. Hanlon remarked "that the timing certainly looks
odd." After another remark made in jest by Mr. Herriot and a further
denial that the ULP played any part in his telephone call, Mr. Herriot
proceeded to inform Mr. Hanlon that as far as he was concerned, "the rif
was over, special understanding regarding his (Mr. Hanlon's) use of time
for Union activities were essentially over, that he was not going to be
expected to do the work and his Work Plan." "And I told him that it was
my understanding that a reasonable amount of time for union activities
had been considered in drawing up the Plan, but that he was going to be
expected to do that." When Mr. Hanlon informed Mr. Herriot that because
of his position as Chief Steward he had a lot of responsibilities which
would take up a lot of time, Mr. Herriot responded that it was his
understanding of the Union agreement "that nothing on the order of a
majority of anybody's time was to be spent on Union activities, and he,
(Mr. Hanlon), was going to be expected to complete the work," Mr.
Herriot further told Mr. Hanlon that if he used a "lot of time on Union
affairs, then as far as I was concerned he'd just have to work nights or
weekends or something, but he was going to do his work." When Mr. Hanlon
informed Mr. Herriot that he did not agree with his interpretation of
the contract, Mr. Herriot informed him that it was his job as supervisor
to make sure that Mr. Hanlon performed the job in his position
description and "That's what the taxpayers are spending their money for
him to do." According to Mr. Herriot, "I even indicated that I as a
taxpayer was somewhat indignant or something like that if somebody
collects their check every week and never does any of that work, because
that was the reason he was hired in the first place."
Mr. Herriot denied ever telling Mr. Hanlon that he was angry because
Mr. Hanlon had filed a ULP or that a ULP should not be filed on official
time. He further denied ever telling Mr. Hanlon that he was offended as
a manager and as a taxpayer "because Mr. Hanlon had filed an unfair
labor practice charge and that he was determined to crack down or put a
stop to his (Mr. Hanlon's) use of official time." Lastly, he denied
telling Mr. Hanlon "that he was not supposed to use official time to
cause trouble by filing unfair labor practice charges, and that Mr.
Hanlon was not being paid to file charges but to do his job."
Respondent concedes, and I find, that if the alleged statements
attributed to Mr. Herriot were indeed made, a violation of Section
7116(a)(1) of the Statute is established since such statements clearly
have a tendency to interfere with, restrain, or coerce employees in the
exercise of their rights under the Statute to freely join, form, or
represent a union. U.S. Marine Corps, Marine Corps Logistics Base,
Barstow, California, 5 FLRA No. 97; U.S. Department of the Treasury,
Internal Revenue Service, Louisville District, 11 FLRA No. 64.
In view of the foregoing conclusion it is obvious that resolution of
the instant case turns on credibility. In this connection, having
observed the witnesses and their demeanor and studied the record in its
entirely, I credit the testimony of Mr. Hanlon which is supported in
pertinent part by documentary exhibits.
Having credited Mr. Hanlon, I find that the Respondent violated
Section 7116(a)(1) of the Statute by virtue of the actions of Mr.
Herriot in making statements to Mr. Hanlon that he, Mr. Herriot was
angry with Mr. Hanlon for having filed an unfair labor practice charge
and that official time should not be used for filing unfair labor
practice charges; and that he, Mr. Herriot, was offended both as a
taxpayer and a manager that Mr. Hanlon was causing trouble by filing
unfair labor practice charges and that it was time to crack down on the
use of official time.
Accordingly, having concluded that the statements attributed to Mr.
Herriot were made and that such statements violated Section 7116(a)(1)
of the Statute since they have a tendency to interfere with, restrain,
or coerce employees in the exercise of their rights accorded by the
Statute to join, form, or represent a union, it is recommended that the
Authority issue the following order designed to effectuate the purposes
of the Statute.
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 U.S. Department of Commerce, Bureau of
the Census shall:
1. Cease and desist from:
(a) Expressing hostility and/or threatening to curtail the use
of official time by Mr. Edward Hanlon, or any other union steward
of the American Federation of Government Employees, Local 2782,
AFL-CIO, the exclusive bargaining representative of its employees,
because the steward filed an unfair labor practice change.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facility in Suitland, Maryland, copies of the
attached notice marked "Appendix", 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 Bureau of
the Census and they shall be posted for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. The responsible
official of the Bureau of the Census who becomes signatory to the
notice shall take reasonable steps to insure that such posted
notices are not altered, defaced, or covered by any other
material.
(b) Notify the 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.
/1/ In the absence of any objection, Respondent's "Motion to Correct
Transcript" is hereby granted.
/2/ Mr. Hanlon is on official time while performing his
representational duties as Chief Steward.
/3/ The charge was a 2-page single spaced document which set forth in
detail the actions of certain named representatives of Respondent with
respect to specific discussions, acts, remarks, etc, concerning the
relocation.
/4/ Following the telephone conversation, as indicated by General
Counsel's exhibit No. 2, Mr. Hanlon amended the unfair labor charge by
inserting Mr. Herriot's name in place of Ms. Hope's.
John Kosloske, Esquire, For the Respondent
David B. Scholl, Esquire, Susan Shinkman, Esquire, For the General
Counsel
WE WILL NOT express hostility and/or threaten to curtail the use of
official time by Mr. Edward Hanlon, or any other union steward of the
American Federation of Government Employees, Local 2782, AFL-CIO, the
exclusive bargaining representative of its employees, because Mr. Hanlon
or any other steward filed an unfair labor practice charge.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
. . . (Agency/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 III,
whose address is: Washington Regional Office, P.O. Box 33758,
Washington, D.C. 20033-0758; and whose telephone number is: (202)
653-8607.
29 FLRA-ALJ; Case No. 3-CA-30048 July 12, 1983
U.S. BUREAU OF THE CENSUS, Respondent, and LOCAL 2782, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of the Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder, Fed.
Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.
Pursuant to an amended charge first filed on October 27, 1982, by
Local 2872, American Federation of Government Employees, AFL-CIO,
(hereinafter called the AFGE or Union), a Complaint and Notice of
Hearing was issued on February 18, 1983, by the Regional Director for
Region III, Federal Labor Relations Authority, Washington, D.C. The
Complaint alleges that the U.S. Bureau of Census, (hereinafter called
the Respondent or Bureau of Census), violated Sections 7116(a)(1), (5)
and (8) of the Federal Service Labor-Management Relations Statute,
(hereinafter called the Statute), by virtue of its actions in (1)
holding a formal meeting with bargaining unit employees wherein
conditions of employment were discussed without giving the Union prior
notice of such meeting and an opportunity to attend; (2) unilaterally
relocating a number of bargaining unit employees without giving the
Union prior notice and an opportunity to request bargaining on the
impact of the relocation on bargaining unit employees and the procedures
for implementation; (3) subsequently refusing to complete bargaining
with the Union over the impact of the relocation on bargaining unit
employees.
A hearing was held in the captioned matter on April 28, 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 which have been duly
considered. /1/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, and the stipulations of the parties, I
make the following findings of fact, conclusions and recommendations.
The Union is the exclusive bargaining representative of a unit of
nonprofessional and professional employees assigned to Respondent's
Washington, D.C. facilities.
The Union and the Respondent are parties to a collective bargaining
agreement. Article 2.4 of the collective bargaining agreement provides
as follows:
2.4 Changes Initiated by Employer. When, during the life of
this Agreement, the Employer proposes to act on a subject or
matter negotiable under the Act, but which requires no change in
the terms of this Agreement, the Employer will notify the Union,
in writing, setting forth the proposal. The parties shall, upon a
timely written request from the Union, meet and confer upon the
proposed action. Such a request by the Union must be submitted
within 5 workdays of the original notification.
Article 2.5 of the Agreement, entitled "Waiver or Breach" reads as
follows:
The waiver or breach of any condition of this Agreement by
either party shall not constitute a precedent in the future
enforcement of all the terms and conditions herein.
On July 20, 1981, the Union sent the Respondent a letter wherein it
notified the Respondent that only the "President of the Local and in his
absence the First Vice President are authorized to receive official
policies, and sign documents for the Local". The letter went on to
inform the Respondent that "No others are authorized unless specifically
delegated by the President or First Vice President or unless authorized
by a majority of the members at their regular meetings". With respect
to the authority of union stewards, the Union pointed out in the letter
that union "stewards are frequently asked by the Union to review changes
such as reorganizations that affect their steward area and to report
their findings to designated Union officials for appropriate action".
"In these instances, the steward's authority is limited to fact
finding".
Ms. Wilhelmina Taylor has been employed by Respondent as a
clerk-typist in the Publication Services Division (PSD) for some 14
years. Ms. Taylor has been a shop steward representing the employees in
PSD for approximately three years.
Sometime prior to October 4, 1982, Ms. Taylor inquired of Ms. Carol
Ingle and Mr. Mike Freeman, labor relations specialists in Respondent's
Employee Relations Office, whether or not a rumored move was about to
take place in the PSD. Both Ms. Ingle and Mr. Freeman replied that they
knew "nothing" about an impending move.
On October 4, 1982, while attending a bargaining session on another
matter, Ms. Ingle handed Ms. Taylor a sheet of paper entitled "Proposed
Publication Services Division's Moves". The paper merely listed the
names of some thirteen employees along with their new office or location
numbers. Ms. Taylor showed the notice, which did not contain a date for
the move, to Mr. Murray and Mr. Hanlon, Second Vice President and Chief
Steward of the Union, respectively, who were sitting in at the
negotiating meeting.
On October 5, 1982, again prior to a negotiation session of another
matter, Ms. Ingle handed Ms. Taylor a single sheet of paper entitled
"Proposed Moves in the Publications Services Division". The paper
indicated that it superseded the announcement or notice of October 4th
and listed approximately 27 employees who would be moving their desk
locations to a different room. Again, Ms. Taylor showed the notice,
which did not contain a date for the scheduled move, to Mr. Hanlon and
Mr. Murray who were in attendance at the meeting.
On October 12, 1982, Ms. Arlene Duckett, Chief of Composition Branch,
PSD, held a meeting with the employees of the Census and Current
sections of PSD for purposes of discussing the impending move of the
employees working in such sections. /2/ Ms. Taylor attended the
meeting.
With respect to Ms. Taylor's status at the meeting, Ms. Duckett
testified that she had intended to hold the meeting earlier in the
morning but postponed it until such time as Ms. Taylor could be present.
Further, according to Ms. Duckett, Ms. Taylor was summoned to the
meeting solely in her capacity as an employee working in the section of
PSD where the move was to take place. Other than having Ms. Taylor in
attendance at the October 12th meeting, Respondent made no attempt to
give any notice of the meeting to any other representative of the Union.
The October 12, 1982, meeting was attended by 31 employees, all
clerk-typists in PSD, and four supervisors. The meeting was held in a
work area, lasted 15 minutes and included questions by the employees.
During the course of the hearing, Respondent's counsel stipulated that
the October 12th meeting "was a formal discussion within the meaning of
the Statute".
Sometime following the October 4th and 5th bargaining sessions
wherein Ms. Taylor was given notices of the impending move in PSD, Chief
Steward Hanlon discussed the notices with Union President Russ Davis.
Mr. Davis instructed Mr. Murray, Second Vice President of the Union, to
prepare a response to the notices.
By letter dated October 13, 1982, Mr. Murray requested bargaining
over the reassignment of the employees in Publication Services Division,
Agriculture Division and Industry Division. /3/ Although, Mr. Hanlon
testified that it was his impression that the request for bargaining was
delivered to Respondent by Mr. Murray on October 13, 1982, Ms. Ingle
testified that the request for bargaining was given to her on October
14, 1982. Ms. Indlge's testimony, which I credit, is supported by
Respondent's mail log. /4/
For purposes of computing the time span from the Notice of the change
to the request for bargaining thereon in connection with Article 2.4 of
the collective bargaining agreement, the parties stipulated that October
4, 5, 6, 7, 8, 12, 13, and November 14, 1982 were working days and that
October 9, (Saturday), October 10, (Sunday), and October 11, (Columbus
Day) were not working days.
The record indicates that on October 14, 1982, a physical relocation
of bargaining unit employees in the Current and Census sections of the
Publication Services Division took place. During the hearing the
General Counsel and the Respondent stipulated that the move created "a
substantial change giving rise to a bargaining obligation under Section
7106(b)(2) and (3) of the Statute, and that the substantial changes had
significant adverse impact on bargaining unit employees".
Subsequently, the Respondent and the Union met on October 26, 27, 28
and November 1 and 10, 1982 to negotiate the impact and implementation
of the PSD move. At the November 10, 1982 meeting the parties first
agreed to discuss a physical relocation in the Population Division
before discussing the impact and implementation of the PSD relocation.
During the discussion of the Population Division relocation a dispute
arose with respect to what constituted adverse impact. The Union
disagreed with the Respondent's theory or definition of adverse impact
and indicated that it wanted to secure some legal advice on the matter.
Although not entirely clear on the record, it appears that Respondent
took the position that the relocation in the Population Division had
caused no adverse impact and therefore it was under no duty to bargain
with the Union. In line with its position, the Respondent requested the
Union to move on in the negotiations and take up the question of the PSD
relocation. The Union, however, having problems with the Respondent's
definition of adverse impact, declined to abandon the discussion of the
Population Division. Whereupon, Respondent informed the Union that
there was nothing further to discuss and the meeting ended with
Respondent telling the Union to make contact when it was ready to
discuss the PSD relocation.
By a memorandum dated December 10, 1982, Mr. Hanlon described and/or
recapped the November 10, 1982, negotiation meeting and requested that
"a negotiating session on the PSD moves be scheduled as soon as
possible".
Respondent replied to the Union's request by a memorandum dated
January 11, 1983, which reads in pertinent part as follows:
This is in response to your memorandum of December 10, 1982
(received in this office December 14, 1982) regarding the above
cited subject.
The Agency met with the Union on October 26, 27, 18 and
November 1, 1982, we provided measurements (room, light, etc.)
requested by the Union to Morris murray with a request to call
when he was ready to meet again.
Morris did call and requested a meeting on November 10, 1982,
following the discussion of the Population physical moves, we
agreed. The Agency's stated position at this November 10 meeting
regarding the Population moves was (and still is) that since the
Union had failed to show any instance of substantial impact on
unit employees the Agency was under no obligation to bargain over
the impact and implementation of these moves. The Agency position
was stated several times with accompanying requests to begin talks
on the PSD moves as the Union had requested, you refused each
request.
On December 14, 1982 (more than a month after you refused to
honor your own request to talk about PSD moves), you requested
another bargaining session. While you expressed some unspecified
"concerns" about allegedly subminimal space allocations, heating
problems, and physical deterioration, a simple physical inspection
of the space belies these concerns. Moreover, neither in your
December 10, 1982 memorandum nor any of the above mentioned
discussions has the Union presented specific instances where
bargaining unit employee (sic) have been substantially impacted or
even unreasonably affected by these physical moves. In the
continued absence of such a showing, we decline to meet again to
retread the same ground. However, if you are able to identify
instances where bargaining unit employees have been unreasonably
affected by these moves, please bring them to our attention so
that we may investigate and, as appropriate, discuss them with
you.
The parties stipulated that there were structural changes made in the
office space involved in the PSD move and that the General Counsel was
not seeking a status quo ante remedy.
With respect to Respondent's past practice of giving notice of
impending changes in conditions of employment, Ms. Ingle testified that
on two occasions in the past she has given notice only to the
appropriate division union steward without any complaint from the Union.
Mr. Freeman testified that there had been no consistent practice with
respect to giving the Union notices of changes. Sometimes he notifies
the president and other times the steward for the particular area. Mr.
Freeman acknowledge, however, that Union President Davis had never given
him permission to serve a steward notice of a change.
Respondent admits that the relocation of PSD unit employees
constituted a change in conditions of employment that had a substantial
impact on such employees, and that the October 12, 1982 meeting
constituted a formal discussion within the meaning of the Statute.
Additionally, Respondent in its post hearing brief acknowledges that the
Authority has held that where a change in condition of employment has a
substantial impact on unit employees, an agency is under an obligation
to give the union involved timely notice of the change and an
opportunity to bargain thereon.
Although not entirely clear, I do not read Respondent's brief as
opposing the General Counsel's contention that a union is entitled to
appropriate notice and an opportunity to attend a formal discussion with
unit employees concerning terms and conditions of employment. To the
extent that Respondent takes such a position, I find such position to be
without merit. Cf. Internal Revenue Service, (District, Region,
National Office Unit), 11 FLRA No. 23; Norfolk Naval Shipyard,
Portsmouth, Virginia, 6 FLRA No. 22.
In view of the above stipulations, concessions and findings, the sole
issues remaining for decision are (1) the adequacy of notices given by
Respondent with respect to the proposed relocation of bargaining unit
employees and the October 12, 1982, formal discussion, and (2) whether,
under all the circumstances present herein, Respondent was obligated to
resume bargaining on the relocation pursuant to the Union's request of
December 14, 1982.
With respect to (1) the notices given Ms. Taylor on October 4 and 5,
1982, concerning the proposed relocation of the PSD unit employees, and
(2) the notice of and opportunity to attend the "formal discussion"
meeting of October 12, 1982, the General Counsel takes the position that
such notices were inadequate since they were not directed to the
appropriate union representatives, namely the President and First Vice
President, who were the only union representatives authorized by the
Union to receive "official notices". The General Counsel further
contents that the October 4 and 5, 1982, notices were deficient in that
such notices did not contain the specific date the relocation was to
take effect. With respect to the Respondent's refusal to continue
bargaining with the Union on and after December 14, 1982, the day the
Union requested that the postponed negotiations on the PSD move be
resumed, the General Counsel takes the position that inasmuch as the
Respondent during the hearing stipulated, contrary to its earlier
bargaining position, that the relocation had a significant adverse
impact on unit employees, a clear violation of Section 7116(a)(5) is
established.
Respondent, on the other hand, relying primarily on the Circuit Court
of Appeals decision in United States Air Force, Air Force Logistics
Command, Aerospace Guidance and Metrology Center, Newark, Ohio, v. FLRA,
681 F.2d 466, takes the position that the notices of both the proposed
relocation and the formal meeting were adequate and appropriate and
"satisfied the good faith bargaining requirement of the Statute".
Respondent further contends that inasmuch as the Union's response to the
notices concerning the proposed relocation of PSD unit members was filed
more than five days after the service of such notices it was within its
rights in effecting the move prior to the completion of bargaining
thereon since the Union did not comply with Article 2.4 of the
collective bargaining contract which requires requests for bargaining on
proposed changes of conditions of employment to be submitted within five
work days of the notification.
Finally, Respondent takes the position that the Union by waiting 34 days
before requesting resumption of the negotiations on the PSD relocation
"waived its opportunity to continue negotiating the PSD move".
As noted above, basic to the resolution of the instant complaint is
the adequacy of the notices given to the Union with respect to the
relocation of the PSD unit employees and the formal discussion meeting
of October 12, 1982. In all cases the notices were given to Ms. Taylor
either in her capacity as union steward for the PSD unit or as a rank
and file unit employee. With respect to the October 4 and 5, notices,
the record establishes that eventually and prior to the actual
implementation of the relocation on October 14, 1982, Mr. Davis,
President of the Local Union, was made aware of the pending relocation
by Chief Steward Hanlon. Thereafter, as set forth in detail in the
factual portion of this decision, Mr. Davis authorized Mr. Murray,
Second Vice President, to submit a request for bargaining.
Contrary to the contention of Respondent, I can not find that, under
all the circumstances present herein, Respondent complied with the
obligations imposed upon it by the Statute.
It is well settled that a union has the sole discretion to select and
determine which individuals will be its representative for purposes of
dealing with management. American Federation of Government Employees,
AFL-CIO, 4 FLRA No. 39. In the absence of any specific delegation it
would appear that an employer might well be free to give notice of any
impending change in working conditions or of a formal meeting to any
responsible officer or steward of the labor organization which is the
exclusive representative of its employees. Here, however, the Union
made a specific delegation of authority with respect to which specific
officers were to receive notices of changes in working conditions and by
letter dated July 20, 1981, informed the Respondent that only the
President and First Vice President were authorized to receive official
notices. Additionally, so that there would be no doubt with respect to
the authority of stewards, the Union in its July 20th letter made it
clear that any inquiries concerning working conditions made by stewards
were not as bargaining representatives but merely fact finders. Having
been so informed of the delegation, Respondent was under an obligation
to comply therewith.
In the instant case, Respondent ignored the delegation and gave
notice of both the impending relocation and the subsequent formal
discussion thereon, to only Ms. Taylor, the Union Steward in PSD. By
taking such action, Respondent not only derogated the Union's status as
an equal bargaining partner, but also failed to give the appointed
representative of the Union appropriate advanced notice of both the
impending relocation and the formal discussion of October 12, 1982.
Accordingly, I find that Respondent, by failing to give appropriate
notice of the impending PSD relocation and an opportunity to bargain
thereon to the Union, violated Sections 7116(a)(1) and (5) of the
Statute. Department of Health and Human Services, SSA, Field Assessment
Office, Atlanta, Georgia and AFGE, AFL-CIO, 11 FLRA No. 78; U.S. Air
Force, Air Force Logistics Command, Aerospace Guidance and Metrology
Center, Newark, Ohio and Local 2221, AFL-CIO, 4 FLRA No. 70.
To the extent that Respondent relies on the Circuit Court's decision
in U.S. Air Force, Air Force Logistics Command, Aerospace Guidance and
Metrology Center, Newark, Ohio, supra, I find that facts of such case to
be distinguishable in that there, the notice of the change was indeed
given to the designated union agent, albeit not in his capacity as union
agent but solely in his as a unit employee. In reversing the
Authority's decision the Court did not attack the Authority's views
respecting appropriate notice but rather its application to the
particular facts of the case. /5/
Moreover, and in any event, in the absence of any information
concerning the course the Authority intends to take in this matter, i.e.
adopt the Court's decision or seek further review of its position
through the medium of this case or another case in one of the other
remaining 10 Circuit Courts of Appeals, I feel with all due respect to
the Sixth Circuit Court of Appeals' decision, that I am duty bound to
follow the legal precedents enunciated by the Authority until such time
as they are reversed by the Authority itself or by the Supreme Court.
/6/
With respect to the notice given Mr. Taylor, solely in her capacity
as a unit employee, of the formal meeting of October 12, 1982, I find
such notice to be insufficient compliance with Section 7114(a)(2)(A) of
the Statute, and hence a violation of Sections 7116(a)(1) and (8) of the
Statute. Internal Revenue Service, Fresno Service Center, Fresno,
California, 7 FLRA No. 54, rev'd on other grounds, (9th Circuit, No.
82-7092, 82-7392, May 25, 1983), Norfolk Naval Shipyard, Portsmouth,
Virginia, 6 FLRA No. 22. /7/
Turning now to Respondent's remaining defenses, i.e. that it was
privileged to make the relocation without prior bargaining with the
Union because the Union had not complied with Article 2.4 of the
contract which requires that a request to bargain be filed within five
working days of the notice of change, and that the Union waived its
right to further bargaining on the PSD relocation since it waited over
34 days before requesting resumption of bargaining. I find for the
reasons set forth below that such defenses are without merit.
With respect to the Article 2.4 issue, I find that the language of
such Article presumes a valid notice to the Union. In the absence of a
valid notice, the time constraints set forth in Article 2.4 would not
begin to run against the Union. Accordingly, having found above that
the Union did not receive a valid notice of the impending relocation, I
further find that Respondent was not privileged to implement the PSD
relocation until such time as the Union had been given appropriate
notice of the impending relocation and five working days had passed
without a request for bargaining thereon. Since such is not the case,
and since Respondent stipulated that the PSD relocation substantially
impacted on the conditions of employment of the PSD unit employees, I
further find that Respondent violated Sections 7116(a)(1) and (5) of the
Statute by unilaterally implementing PSD relocation without first
bargaining with the Union over the impact of the move and the manner of
implementation.
I further find that a 34 day hiatus been the termination of a
bargaining session and a request for resumption of bargaining, standing
alone, falls short of establishing a waiver. This is particularly true
under all the circumstances present herein, namely, the fact that the
Union was forced to commence bargaining after the relocation had become
a fait accompli and Respondent's representatives had espoused doubts as
to whether impact bargaining was, in any event, in order.
Finally, having found that the Union did not waive its rights to
bargain over the impact and manner of implementation of the PSD
relocation. I further find that Respondent violated Sections 7116(a)(1)
and (5) of the Statute when it refused to resume bargaining with the
Union on the ground, retracted during the hearing, that the move did not
substantially impact on unit employees.
In view of the above findings, it is hereby recommended that the
Authority adopt the following order designed to effectuate the purpose
and policies of the Act.
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Department of Commerce, Bureau of the Census, shall:
1. Cease and desist from:
(a) Relocating bargaining unit employees without first
notifying the American Federation of Government Employees, Local
2782, AFL-CIO of its intention and affording it the opportunity to
negotiate about the procedures that management will utilize in
implementing the relocation and the impact such relocation will
have on affected unit employees.
(b) Refusing to honor the request of the American Federation of
Government Employees, Local 2782, AFL-CIO, for the resumption of
bargaining negotiations with respect to the impact of the PSD
relocation on the conditions of employment of unit employees.
(c) Failing to provide the American Federation of Government
Employees, Local 2782, AFL-CIO with appropriate prior notification
of, and an opportunity to be represented at, a formal discussion
between one or more representatives of the agency and one or more
employees in the unit concerning general conditions of employment.
(d) In any like or related manner, interfacing with,
restraining, or coercing its employees in the exercise of 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) Upon request, negotiate with the American Federation of
Government Employees, Local 2782, AFL-CIO concerning the impact of
the PSD relocation on the conditions of employment of unit
employees.
(b) Post at its Suitland, Maryland, facilities copies of the
attached Notice marked Appendix, on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by an appropriate official, 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 insure that said 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 of Region III, 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.
/1/ In the absence of any objection, Respondent's motion to correct
the transcript is hereby granted.
/2/ PSD has a number of branches, among which is the Composition
Branch, which in turn is divided into four sections, namely Census,
Current, Negative Stripping and Special Equipment.
/3/ The record is barren of any evidence surrounding the reassignment
of employees in any division other than PSD, and the instant complaint
only involves the reassignment of the PSD employees.
/4/ In reaching this conclusion it is noted that Mr. Murray did not
testify and that Mr. Hanlon did not personally observe when Mr. Murray
actually delivered the request for bargaining.
/5/ In this connection the Court noted as follows:
This panel is of the opinion that the fault with the FLRA's
decision lies not so much in what it seeks to accomplish but in
the forum in which it has chosen to do so.
/6/ In Department of Health and Human Services, SSA, Field Assessment
Office, Atlanta, Georgia and AFGE, supra, decided after the Circuit
Court's decision, the Authority adhered to its conclusions concerning
the requirement that appropriate notice be given to the duly appointed
union representative.
/7/ In reaching this conclusion, I do not find, as contended by the
General Counsel, that the absence of the specific date the relocation
was to be effective invalidated the notice.
John Kosloske, Esquire, For the Respondent
Donna Ditullio, Esquire, For the General Counsel
Ms. Linda Franz, For the Charging Party
WE WILL NOT relocate bargaining unit employees without first
notifying the American Federation of Government Employees, Local 2782,
AFL-CIO, of our intention and affording it the opportunity to negotiate
about the procedures that management will utilize in implementing the
relocation and the impact such relocation will have on affected unit
employees.
WE WILL NOT refuse to honor the request of the American Federation of
Government Employees, Local 2782, AFL-CIO, for the resumption of
bargaining negotiations with respect to the impact of the PSD relocation
on the conditions of employment of unit employees.
WE WILL NOT fail to provide the American Federation of Government
Employees, Local 2782, AFL-CIO with appropriate prior notification of,
and an opportunity to be represented at, a formal discussion between one
or more representatives of the agency and one or more employees in the
unit concerning general conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL upon request negotiate with the American Federation of
Government Employees, Local 2782, AFL-CIO, concerning the impact of the
PSD relocation on the conditions of employment of unit employees.
. . . (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, Federal Labor Relations Authority, Region III, whose
address is: P.O. Box 33758, Washington, D.C. 20033-0758, and whose
telephone number is: (202) 653-8507.
28 FLRA-ALJ; Case Nos. 12-CA-20356 /1/ 12-CA-20365 April 11, 1983
DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND NATURALIZATION SERVICE
(WASHINGTON, D.C.) and U.S. IMMIGRATION AND NATURALIZATION SERVICE,
EASTERN REGION, NEW YORK DISTRICT (NEW YORK, NEW YORK), Respondent, and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1917, AFL-CIO,
Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to an Order Consolidating Cases and Notice of Hearing issued
on July 12, 1982 by the Regional Director for the Federal Labor
Relations Authority, Boston, Massachusetts, a hearing was held before
the undersigned on December 14, 1982 at New York, New York.
This proceeding arises under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It is based on first
amended charges filed in each case by American Federation of Government
Employees, AFL-CIO, Local 1917 (herein called Local 1917) against
Department of Justice, U.S. Immigration and Naturalization Service, and
U.S. Immigration and Naturalization Service, Eastern Region, New York,
New York (herein called Respondent).
The complaint /2/ herein alleged, in substance, that Respondent (a)
on or about April 12, 1982 met and bargained directly with bargaining
unit employees concerning conditions of employment, to wit: the
procedures for assigning employees to different hours of work, jobs for
Project Job; (b) on or about April 21, 1982 refused to negotiate with
the Union concerning the impact and implementation of Project Job, which
involved substantial changes in conditions of employment; (c) on or
about April 26, 1982 unilaterally changed conditions of employment of
unit employees by implementing Project Job without affording the Union
the opportunity to bargain regarding the impact and implementation
thereof-- all in violation of Section 7116(a)(1) and (5) of the Statute.
Respondent filed an answer to the complaint herein in which it denied
the essential allegation of the complaint as well as the commission of
any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses.
Thereafter briefs were filed with the undersigned which have been duly
considered. /3/
Upon the entire record in this case, from my observation of the
witnesses and their demeanor, and from all the testimony and evidence
adduced at the hearing, I make the following findings and conclusions:
1. At all times material herein the National Immigration and
Naturalization Service Council of the American Federation of Government
Employees, AFL-CIO, has been, and still is, the exclusive bargaining
representative of all employees of the U.S. Immigration and
Naturalization Service, excluding employees assigned to Border Patrol
Sectors and those excluded by the Civil Service Reform Act.
2. At all times material herein American Federation of Government
Employees, Local 1917, AFL-CIO (Local 1917) has been and still is, the
designated agent of the National Immigration and Naturalization Service
Council of the American Federation of Government Employees, AFL-CIO
(herein called the Union). At all such times Local 1917 has been the
designated agent of the Union at Respondent's New York District and
authorized to represent the Union at (a) formal discussions between
Respondent and bargaining unit employees, (b) negotiations with
Respondent concerning impact and implementation of changes in conditions
of employees at the New York District.
3. Both Respondent and the Union are parties to a collective
bargaining agreement which, by its terms, became effective June 13, 1979
for a term of three years and has been in effect at all times material
herein. Article 3G provides, inter alia, that Respondent will present
to the Union, in writing, any changes it proposes to make in working
conditions, that the Union will present its views in regard thereto
within a set time period; that negotiations may ensue in respect to
changes in dispute; and that Respondent recognizes its obligation in
this regard exist at the national, regional and district levels.
4. The U.S. Immigration and Naturalization Service is an agency
which administers federal laws dealing with the admission, exclusion,
deportation and naturalization of aliens. It investigates alleged
violations thereof and patrols U.S. borders to prevent illegal entry of
the country.
There are four Regions throughout the country, and included therein are
various District offices. The New York District, which is involved in
the present proceeding, is included within the Eastern Region and
located at 26 Federal Plaza, New York, New York.
5. On or about March 22, 1982 /4/ representatives of Respondent's
central office in Washington, D.C. met with Michael Harpold, President
of the Union, Richard Bevins, President of the AFGE Border Patrol
Council, and Richard Robinson, an AFGE attorney. At this meeting
Respondent gave the union representatives an informal briefing of its
plan to conduct a nationwide enforcement operation to apprehend a large
number of aliens. The latter were suspected of unlawfully holding jobs
in the United States. Moreover, it was contemplated that the removal of
these aliens from jobs to which they were not entitled would create
employment for U.S. citizens and permanent residents.
6. By letter dated March 25, John Mulholland, Director, Labor
Management Services Department of AFGE, wrote Ms. Barbara Powers,
Respondent's Labor Relations Specialist, and acknowledged the background
briefing regarding the forthcoming enforcement plan. The Union agent
further stated that the Union expected advance notice of, and an
opportunity to negotiate the substance, impact and implementation of,
all upcoming enforcement activities affecting employment conditions.
7. Respondent's Acting Associate Commissioner, James H. Walter,
replied in a letter dated April 1 and assured Mulholland therein that
such notification and opportunity to negotiate would be given.
8. Record facts disclose, and I find, that no further notification,
apart from the meeting on March 22, was given by Respondent to either
the Union or Local 1917 regarding the planned operation.
9. In a memo dated April 7, Allen J. Kampel, Supervisory Deportation
Officer in the New York District at 26 Federal Plaza, New York, New
York, wrote Alan Friess, Assistant District Director for Deportation at
this location, regarding the forthcoming enforcement which was called
Project Job. Kampel set forth the names of the individuals who would be
detailed to the Service Processing Center (SPC) in Brooklyn, New York
commencing on April 26. The list included four individuals who would
perform deportation officer functions from 8:00 a.m. to "whatever the
bond office closes" as well as ten deportation officers who would
perform immigration detention officer functions on a 12 hour shift. /5/
Those deportation officers not selected were to remain at Federal Plaza
to handle bonds and other work.
10. Local 1917 steward Shelly Dorn sent a letter dated April 8 to
Charles C. Sava, District Director, regarding the Project Job operation.
Dorn commented that the scheduling of deportation officers to the SPC
involves shift changes and detail assignments which are unilateral
changes in personnel practices, and that they resulted in an adverse
impact upon bargaining employees. On behalf of Local 1917 nine
proposals were made in the letter regarding the project concerning the
selection of employees, the hours of work while on detail, the physical
condition of the working site, and the security to be provided
employees. Dorn also stated that Local 1917 demanded negotiations in
respect to the planned operation.
11. By letter dated April 21 Sava wrote Local 1917 President Carl
Johnson that he declined to enter negotiations since he did not consider
the planned operation to be a change in personnel policies, practices or
conditions of employment for District employees. Respondent's official
further stated that he had no objection to a safety and health
inspection of the third and forth floors by the Union representatives.
12. Friess sent a memo dated April 16 to all deportation and
detention officers regarding leave requests during the 21 day period /6/
commencing April 26. The memo advised those employees that no requests
for annual or sick leave could be granted during such period except in
extreme emergencies.
13. Norma Blank, Deportation Officer at Federal Plaza in the New
York District, works thereat customarily from 8:30 a.m.-- 5:00 p.m. She
was assigned to work on Project Job for two weeks as a detention officer
at SPC in Brooklyn during the hours of 6:00 a.m.-- 6:00 p.m. She
confronted Kampel in early April, upon reviewing the list of detailees,
and inquired how the names were chosen and the basis therefor. When the
management official declared she was arbitrary and capricious, Blank
spoke to Friess in regard thereto. The employee was concerned since
some individuals were not detailed at all, some worked day while others
were on night shift, and some were detailed to office functions.
Friess agreed to speak to Kampel and advise her if any changes were
made. /7/
14. On about April 11 Friess called I. A. Gentile, Deportation
Officer and 1st Vice-President of Local 1917, into his office. Friess
told the employee that he intended to use a lottery system in selecting
the officers for the operation. Gentile informed the Assistant Director
that the latter must notify the Local 1917 President in writing as per
Article 3G of the bargaining agreement; that the employee would listen
only as a deportation officer. Friess remarked he would like Carl
Johnson to come to a meeting and discuss the matter.
15. A meeting was held sometime between April 12-15 at Friess'
office. Johnson appeared there at after being notified by Gentile.
Also in attendance were Friess, his assistant Richard Curtiss, Gentile,
and all (10-12) deportation officers. The Assistant Director told the
group that the employees would work 12 hour shifts, seven days per week;
that a lottery system would be used to determine the assignments
therefor. Local 1917 President Johnson protested the use of the lottery
as an unfair method of assigning the employees. He also stated the
union would request it be negotiated. Whereupon Friess replied, "you do
what you have to do and I'll do what I have to do." The Assistant
Director then put names in a hat, made a list of positions to be filled,
and drew out names of those who would be assigned to said positions in
Project Job.
16. The Assistant Director for Investigations, Rene B. Albina, held
a meeting of the criminal investigators prior to the commencement of the
operation. He read off the names of the field investigators who would
be assigned on Project Job and the functions of each employee. Twelve
criminal investigators were assigned to work at the process center in
Brooklyn, and Respondent provided a van to take them from Federal Plaza
to the center. A car has been provided usually for those who were
detailed to that site, but non was available for this operation. /8/
17. There were two sections involved in Project Job, deportation and
investigation, and three classes of officers assigned to the project:
deportation officers, detention officers, and criminal investigators.
Deportation officer Blank worked for two weeks on the detail, Detention
officer James Lane was detailed thereat for 21 days. The roundup, as
testified to by Albina, took place in four days.
18. Deportation Officer Norma Blank was assigned to work at SPC from
Federal Plaza as a detention officer during Project Job. Her assigned
hours were 6:00 a.m. to 6:00 p.m. While at SPC she was told by her
supervisor to take an alien, who had become ill, to a hospital in Staten
Island. Blank had made plans for that evening with reservations for a
play. She went to the hospital with the alien, but requested that she
be relieved in time to keep her appointment. The supervisor told Blank
to stay with the alien until relieved, and promised to find a
substitute. When none was sent to the hospital, Blank left SPC at 6:00
p.m. She was suspended for two days for leaving her post and not
following instructions.
19. Project Job began on April 26 at which time the third and fourth
floors were opened at the SPC in addition to the fifth floor which was
usually sufficient for the handling of aliens. Respondent has
customarily used 'contract' guards for each shift, but for this project
about 50 security guards were hired to handle the increase of aliens who
were arrested. Record facts show that while the employees during the
course of employment had regular days off, those were not granted during
Project Job. The size of the operation required that a team of three
officers handle busloads of 40-50 aliens and transport them to the
airport; formerly, this team might handle a group of only five aliens.
The individuals who worked overtime were compensated on administratively
uncontrollable overtime. /9/ The assignments on Project Job were
involuntarily made.
20. The record reflects that other Project Jobs of a similar nature
had been performed by Respondent in past years. These have generally
been on a smaller scale, requiring less people to be detailed for the
operations. This Project Job at the Brooklyn SPC involved many more
aliens to be processed and handled by the Respondent's employees. Past
procedures usually resulted in seeking volunteers for the details of
this nature. If there were insufficient volunteers, Respondent would
assign the officers as required. Supervisor John Halpin testified, and
I find, that usually a list is used if no deportation officers
volunteered for details. Those who had been on details the fewest days
would be at the top of the list and, based on this "wheel" method, would
be first to be assigned. /10/
This list was not used for Project Job. Halpin also testified that a
lottery system has been used in the past when details were made to other
regions after volunteers were solicited.
While it is customary for the officers to work eight hour days, those
assigned to details have worked longer hours. Thus, Detention Officer
James Lane, Criminal Investigator Robert Serrao, and Deportation Officer
Norma Blank all testified they worked 12 hour details, /11/ albeit on an
involuntary basis. The record further reflects that overtime has been
worked occasionally on an involuntary basis and the "wheel" system
utilized. It also appears that overtime has been required when, on
details, an employee must stay beyond the usual work schedule in order
to complete his assignment.
Three issues are presented for determination herein. (1) Assuming
arguendo an obligation existed on Respondent's part to bargain on the
Project Job operation, whether (a) the exclusive representative waived
its right to demand negotiations of not offering items for consideration
by Respondent after being notified of the forthcoming project, (b)
Respondent was under a duty to negotiate with Local 1917 after having
notified the Union of the prospective operation; /12/ (2) whether
Respondent effected unilateral changes in past practices on working
conditions without notifying Local 1917 and affording it the opportunity
to bargain thereon; (c) whether Respondent's conduct in talking to
employees regarding Project Job, and the meeting with them in regard
thereto, was tantamount to a by-passing of the Union and an attempt to
bargain directly with employees in violation of the Statute.
(1)(a) Respondent challenges the right of the exclusive bargaining
representative to demand bargaining on the part of the employer. It
asserts that the representative has waived its right to bargain over the
matters involved herein. This contention is predicated on the fact that
the parties met on March 22 at which time management briefed the Union
concerning Project Job; that the bargaining agent presented no items
for negotiations and failed to impose any duty upon Respondent to
negotiate thereon.
The Authority has declared that a waiver of bargaining rights will
not be inferred unless it is clear and unmistakable. Department of the
Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981). In the
cited case the agency contended, in much the same manner as does
Respondent herein, that a failure by the union to submit proposals upon
request constituted a waiver of the right to negotiate. This contention
was rejected. Moreover, in NASA, Kennedy Space Center, Florida, A/SLMR
No. 223, 2 A/SLMR 566, 569 (1972), it is stated that a waiver will not
be found because a labor organization failed in negotiations to obtain
protection with respect to certain of its rights.
Nothing in the record herein persuades me that the bargaining
representative waived its right to demand bargaining of the Respondent.
Contrariwise, in its letter of March 25, the bargaining agent advised
management that it expected advance notice of the forthcoming operation
and an opportunity to negotiate therein. Further, Respondent on April 1
wrote the union that such notice and opportunity will be afforded the
bargaining representative. Under these circumstances, I conclude that
the failure to make proposals as to Project Job on March 22 does not
reflect a clear and unmistakable intention to waiver its right to
bargain concerning the impact and implementation thereof.
(b) It is further asserted by Respondent that, having met with and
notified the national bargaining representative, it was not required to
deal with the local union. The agency argues that the imposition of
such an obligation calls for an arguable interpretation of the contract
that must be resolved via the grievance procedure.
The foregoing argument is not impressive. It was recognized in the
written agreement (Article 3G) that changes would likely arise in
personnel practices and working conditions during the life of the
agreement; that the agency would present to the bargaining agent the
changes it desired to make; and that this obligation existed at the
National, Regional and District levels. /13/ Moreover, the complaint
averred (paragraph 11b) and the answer admitted, that the local herein
is the designated agent of the national; that Local 1917 was authorized
to represent the Union in negotiations with Respondent regarding the
impact and implementation of local changes in employment conditions.
It was thus comprehended between the parties that the agency would be
obliged to bargain at the local level concerning changes which affect
unit employees thereat. Accordingly, I conclude that Respondent may not
validly escape such obligation by insisting it was only required to deal
at the national level. See and compare American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA No. 77 (1980) where the
Authority stated that the master agreement at the level of recognition
may provide for negotiating supplemental agreements at the local level
regarding conditions of employment pertaining to local unit employees.
(2) There is little dispute, and it is now well established, that an
employer in the public sector may not unilaterally change past practices
or conditions of employment without fulfilling certain obligations.
Thus it is incumbent upon the agency, when it desires to effect changes,
to properly notify a union and afford it an opportunity to bargain, at
least, concerning the impact and implementation thereof. U.S.
Department of Justice, Immigration and Naturalization Service, Southern
Region, El Paso, Texas, 11 FLRA No. 27 (1983); Department of the Air
Force, Scott Air Force Base, Illinois, supra. While not disagreeing
with this decisional law, Respondent takes the position that it did not
institute changes of any significant nature when Project Job was put
into effect. It contends, moreover, that the latter operation involved
the same type of duties which the officers or investigators always
performed; that the only essential difference occasioned by Project Job
was the extent of the operation itself.
It is true that the unit employees at the New York District, in
handling the processing or deportation of aliens during this latest
roundup, were performing duties which were part and parcel of the usual
functions of the deportation and detention officers and the criminal
investigators. Nevertheless, there were some changes in regard to their
employment wrought by this Project Job. Thus, the record reflects that
assignments to the detention center in the past were made in the
following manner: volunteers were sought by management in the first
instance, and if this approach was unsuccessful, assignment were made by
resorting to a list or "wheel" of employees. Those individuals with the
least such assignments in the past would be selected to be sent to SPC
after soliciting volunteers.
In implementing Project Job Respondent did not request volunteers
from Federal Plaza to the Brooklyn Service Processing Center. Further,
it utilized a lottery system to determine which individuals would be
assigned to SPC for the operation. I view this as a substantial change
from its past practice in making such assignments, which required it to
negotiate the impact and implementation thereof with Local 1917.
Its failure to do so was, in my opinion, violative of Section 7116(a)(1)
and (5) of the Statute.
The roundup of aliens under Project Job also necessitated shift
changes for those individuals assigned to the Service Center. Record
testimony reveals that the normal or customary work shift thereat was
eight hours. On occasion, it is true, the employees worked beyond this
eight hour shift, but generally this occurred on special details or when
an officer had to remain with an alien for an extended period.
Assistant Director Albina testified he did not recall that any
deportation or detention officer worked on a 12 hour shift in prior
project jobs. In addition to the significant staff change for this
Project Job, the regular days off the the employees assigned thereat
were changed and no sick or annual leave was permitted during the
operation.
In regard in overtime, employees Bland and Lane, as well as
supervisor Halpin, testified that scheduled overtime was usually on a
voluntary basis. Employees assigned to the Center were requested to
work overtime. If none volunteered, or more officers were needed to do
so, overtime was assigned by using the "wheel" system: those who worked
overtime the least would be the first to called for such duty. During
the roundup in March Respondent did not solicit volunteers nor did it
utilize the "wheel" in selecting employees for overtime.
By requiring the employees to work 12 hour shifts with no sick or
annual leave for this period, as well as assigning overtime without
first requesting volunteers, I conclude Respondent has effected changes
from past personnel practices and conditions of employment. It was
incumbent upon Respondent to give reasonable notification thereof to the
Union and afford it an opportunity to bargain thereon. See Department
of the Air Force, Scott Air Force Base, supra; Southeast Exchange of
the Army and Air Force Exchange Service, Rosewood Warehouse, Columbia,
S.C., 6 A/SLMR 238 (1970)
A past practice also existed at the District of furnishing
governmental vehicles to officers, or permitting the individual to use
their own vehicles when assigned to the detention center. During
Project Job management discontinued the use of government cars.
Employees were expected to get to the Federal Plaza on their own, and a
van was provided for said individual to be transported to the Center.
In U.S. Department of Justice, U.S. Immigration and Naturalization
Service, 9 FLRA No. 36, the Authority found the agency violated Section
7116(a)(1) and (5) of the Statute by unilaterally changing a past
practice of allowing employees to use privately owned vehicles. The
cited case is controlling in respect to the change instituted by
Respondent herein concerning the use of government cars during Project
Job. This change in past practice required that the agency give ample
notification thereof to Local 1917 it bargain with it regarding the
impact and implementation of said change.
Respondent's failure to do so was violative of the Statute. /14/
(3) In respect to whether any employer has flouted its duty to
negotiate with the bargaining representative by having by-passed the
latter, the Federal Labor Relations Council suggested the consideration
of certain criteria in Department of the Navy, Naval Air Station,
Fallon, Nevada, A/SLMR No. 432, FLRC No. 74A-80, 3 FLRC 697 (1975). It
outlawed communications which amount to an attempt to by-pass the
bargaining agent and deal directly with employees, or which urge
employees to put pressure on the agent to take certain action, or which
threaten or promise benefits to employees. Moreover, the Authority has
held that to establish a by-pass it must be shown that the conduct of
the employer undermined the status of the bargaining representative.
Internal Revenue Service, (District, Region, National Office Unit), 11
FLRA No. 23 (1983).
General Counsel maintains that Respondent by-passed the Union herein
by, inter alia, listening to employees' complaints regarding Project
Job, calling them together to address them, and ignoring the Union
president by proceeding to conduct the lottery. While the foregoing
actions occurred, I am not persuaded they were tantamount to a
by-passing of the bargaining representative.
At the meeting in mid-April, Friess did inform the deportation
officers, as well as union agents Johnson and Gentile, that the
employees would work 12 hour shifts and a lottery system would be used.
He also indicated to Johnson the assignments for the operation were not
negotiable, suggesting that Local 1917 President should do what he had
to regarding the matter and Friess would do as he was required.
Further, Assistant Director Albina met with the criminal investigators
prior to Project Job's commencement to inform them who would be assigned
to the center, the functions of each employee thereat, and to tell them
that a van would be provided to transport them from Federal Plaza to the
Brooklyn Center.
In neither instance, however, am I convinced that management was
attempting to "deal" with the employees or negotiate the matter with
them. While Respondent took the position that there was no change
involved in working conditions as a result of Project Job, it does not
appear that the employer undertook to undermine the Union by negotiating
with employees. Its refusal to bargain over the changes with Johnson
was not, I conclude, a concomitant part of any effort to deal with the
officers or investigators. /15/ The announcement to the latter groups
of the details of Project Job was informative in nature-- not a
negotiating session. No threats or promises of benefits were made by
Respondent to unit employees. Cf. Iowa National Guard and National
Guard Bureau 8 FLRA No. 101 (1982). Accordingly, I conclude that, by
its conduct in talking to employees-- both separately or in the presence
of Union representatives-- Respondent did not by-pass by the Union in
violation of the Statute.
In sum, I conclude that the institution of Project Job by Respondent
on April 26, 1982 involved change in (a) procedures for assigning
employees to the Service Processing Center in Brooklyn, New York; (b)
work hours of employees assigned thereto; (c) selection of individuals
to work overtime at SPC; (d) leave policies during the roundup and
assignment to SPC; (e) discontinuing the practice of providing
government owned vehicles for employees assigned to SPC, as well as
prohibiting privately owned vehicles to be parked thereat. Further,
these changes were substantial and were made without proper and
reasonable notification to the Union or Local 1917, and without
affording the Union an opportunity to bargain regarding the impact and
implementation thereof-- all in violation of Section 7116(a)(1) and (5)
of the Statute.
Having concluded as aforesaid, I recommend the Authority adopt the
following:
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 the Department of Justice, U.S. Immigration and
Naturalization Service (Washington, D.C.) and U.S. Immigration and
Naturalization Service, Eastern Region, New York District (New York, New
York) shall:
1. Cease and desist from:
(a) Unilaterally changing its established selection procedure
in assigning employees to Project Job by failing and refusing to
initially seek volunteers before making assignments thereto, and
by thereafter failing and refusing to make use of a list or
"wheel" to determine which individuals will be assigned to Project
Job without first notifying the National Immigration and
Naturalization Service Council of the American Federation of
Government Employees, AFL-CIO, the exclusive bargaining
representative, and affording it, or its designee, American
Federation of Government Employees, AFL-CIO, Local 1917, the
opportunity to bargain concerning the impact and implementation
thereof.
(b) Unilaterally changing the regular hours of work of its
employees assigned to Project Job, or the procedure to seek
volunteers for overtime work before assigning employees to such
overtime at Project Job, or the leave policy as to employees
assigned to work on Project Job, or the use of government owned
vehicles by employees assigned to Project Job, without first
notifying the National Immigration and Naturalization Service
Council of the American Federation of Government Employees,
AFL-CIO, the exclusive bargaining representative, and affording it
or its designee, American Federation of Government Employees,
AFL-CIO, Local 1917, the opportunity to bargain concerning the
impact and implementation thereof.
(c) In any like of 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 actions in order to effectuate the
purposes and po.icies of the Statute:
(a) Notify the National Immigration and Naturalization
Service
Council of the American Federation of Government Employees,
AFL-CIO, the exclusive bargaining representative of any intention
to change its established selection procedure of assigning
employees to Project Job by means of soliciting volunteers
initially before making assignments thereto, and of using a list
or "wheel" to determine which individuals will be assigned, and
upon request, bargain in good faith, to the extent consonant with
rules and regulations, concerning the impact and implementation
thereof.
(b) Notify the National Immigration and Naturalization Service
Council of the American Federation of Government Employees,
AFL-CIO, the exclusive bargaining representative, of any intention
to change the regular hours of work of its employees assigned to
Project Job, or the procedure to seek volunteers for overtime work
before assigning employees to such overtime at Project Job, or the
leave policy as to employees assigned to work on Project Job, or
the use of government owned vehicles by employees assigned to
Project Job, and upon request, bargain in good faith, to the
extent consonant with rules and regulations, concerning the impact
and implementation thereof.
(c) Post at its facilities at 26 Federal Plaza, New York 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 Director of the U.S. Immigration and
Naturalization Service, New York District, and shall be posted and
maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the District Director to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director, Region I, 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.
/1/ Prior to the hearing these cases were consolidated with Case Nos.
12-CA-20351; 12-CA-20352, 12-CA-20366, 12-CA-20367 and 12-CA-20368. At
the hearing the undersigned granted General Counsel's Motion to Sever
the aforesaid enumerated cases on the ground that they were settled via
informal settlement agreements.
/2/ At the hearing the undersigned granted the Motion of the General
Counsel to amend the complaint as follows: to delete in their entirely
paragraphs 1, 2, 5, 6, 7, 13, and 15, and to delete allegations
pertained to cases which were originally consolidated with the instant
cases and then severed from this proceeding based on informal
settlement.
/3/ Subsequent to the hearing General Counsel filed with the
undersigned a Motion to Correct Transcript in certain respects. No
objections having been filed thereto, and it appearing to the
undersigned that the proposed corrections truly reflect the testimony
and evidence adduced, the motion is granted. The said corrections are
attached hereto as Attachment A.
/4/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1982.
/5/ Five of those detention officers were scheduled to work 6:00 p.m.
- 6:00 a.m.; the remaining five officers were scheduled from 6:00 a.m. -
6:00 p.m.
/6/ While the roundup was scheduled to last about four days, it was
contemplated the other procedures would entail several weeks of work.
/7/ Some adjustments in shift hours were made in several instances.
/8/ Assistant Director Albina testified that a parking problem
existed at the service center precluding the use of private or
government cars, and that space had to be available for the buses
carrying the aliens.
/9/ Under Federal law this is overtime paid (unscheduled) when the
employee must remain on duty after his regular duty shift. Two other
types of overtime (scheduled) are paid where functions other than those
of criminal investigators are performed. These would call for time and
a half or double time in certain instances.
/10/ Halpin recalls a detail in the summer of 1981 when seven female
deportation officers went to the Brooklyn center to handle a lot of
female Haitians detained thereat. That selection was involuntary since
all were needed. They worked eight hour tours, and some worked on
Saturdays and Sundays and nights.
/11/ Blank and Serras worked on 12 hours shifts on a voluntary detail
in November, 1980 at Fort Chaffee, Arkansas. However, Albina testified
he didn't recall, at a Project Job in 1964, that any deportation or
detention officers were required to work 12 hour shifts at a detention
center.
/12/ In its brief Respondent raised the issue of waiver herein, and
it also insisted that no obligation existed to negotiate on a lower
level (Local 1917) since it notified the exclusive representative of its
plans as to Project Job.
/13/ Article 3E and F provide for the representatives of the agency
and the Union at the District level to meet and discuss local problems
and for the national union to designate representatives at the District
level.
/14/ General Counsel also contends that other aspects of the roundup
constituted unilateral changes which required notification to and
bargaining with the Union. It adverts to such items as the use of two
additional floors, the use of any more guards, and the saddling of
officers with the added responsibility of handling 40 or more aliens in
busloads to the airports. All of the foregoing, while involving more
arduous tasks in certain instances, were not, in my opinion, substantial
changes in working conditions of the employees so as to call for
bargaining on impact and implementation.
/15/ In his brief General Counsel cited in support of its position
the Administrative Law Judge's Decision in Department of the Air Force,
915th Tactical Fighter Group, Homestead Air Force Base, Florida, Case
No. 4-CA-596, OALJ-82-86 (1982). In the cited case the agency
determined whom it would "deal" with, set up meetings therefore, and did
ignore the Union president by negotiating with others. I find the cited
case distinguishable from the one at bar.
/16/ General Counsel seeks a status quo ante remedy to the extent
that Respondent be ordered to rescind the two day suspension issued to
Norma Blank and reimburse her for loss of pay caused thereby. Conceding
that disciplinary action has not been ordered as part of a bargaining
remedy, General Counsel adverts to cases which hold that this remedy,
including back pay, is justified where, but for the wrongful unilateral
act, a loss of pay would not have occurred. Such cases, however,
involve instances where there is a close and direct casual relationship
between the violation and the effect thereof. See Department of
Defense, et. al., 4 FLRA No. 100 (1980) where a position, if improperly
filled, resulted in a loss of monies to one who suffered thereby. In
the case at bar Blank was disciplined for breach of duty not because of
a bargaining failure. To allow reimbursement because she might not have
been at the Center if hours were not changed and thus not have need to
leave beforehand, would permit all employees to claim losses for
resultant effects. The relationship between the violation and Blank's
loss of pay is too incidental. Accordingly, the request for this
remedy, in respect to Norma Blank, is denied.
Joseph Mangiulli, Judith Dec, For the Respondent
Daniel Sutton, Esq., For the General Counsel
Carl I. Johnson, For the Charging Party
WE WILL NOT unilaterally change our established selection procedure
in assigning employees to Project Job by failing and refusing to
initially seek volunteers before making assignments thereto, and by
thereafter failing and refusing to make use of a list or "wheel" to
determine which individuals will be assigned to Project Job without
first notifying the National Immigration and Naturalization Service
Council of the American Federation of Government Employees, AFL-CIO, the
exclusive bargaining representative, and affording it, or its designee,
American Federation of Government Employees, AFL-CIO, Local 1917, the
opportunity to bargain concerning the impact and implementation thereof.
WE WILL NOT unilaterally change the regular hours of work of our
employees assigned to Project Job, or the procedure to seek volunteers
for overtime work before assigning employees to such overtime at Project
Job, or the leave policy as to employees assigned to work on Project
Job, or the use of government owned vehicles by employees assigned to
Project Job, without first notifying the National Immigration and
Naturalization Service Council of the American Federation of Government
Employees, AFL-CIO, the exclusive bargaining representative, and
affording it or its designee, American Federation of Government
Employees, AFL-CIO, Local 1917, the opportunity to bargain concerning
the impact the implementation thereof.
WE WILL NOT in any like or related manner interfere with, restraining
or coercing our employees in the exercise of their rights assured by the
Federal Service Labor-managemement Relations Statute.
WE WILL notify the National Immigration and Naturalization Service
Council of the American Federation of Government Employees, AFL-CIO, the
exclusive bargaining representative of any intention to change our
established selection procedure of assigning employees to Project Job by
means of soliciting volunteers initially before making assignments
thereto, and of using a list or "wheel" to determine which individuals
will be assigned, and upon request, bargain in good faith, to the extent
consonant with rules and regulations, concerning the impact and
implementation thereof.
WE WILL notify the National Immigration and Naturalization Service
Council of the American Federation of Government Employees, AFL-CIO, the
exclusive bargaining representative, of any intention to change the
regular hours of work of our employees assigned to Project Job, or the
procedure to seek volunteers for overtime work before assigning
employees to such overtime at Project Job, or the leave policy as to
employees assigned to work on Project Job, or the use of government
owned vehicles by employees assigned to Project Job, and upon request,
bargain in good faith, to the extent consonant with rules and
regulations, concerning the impact and implementation thereof.
. . . (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, Federal Labor Relations Authority, Region I, whose
address is: 441 Stuart Street, 9th Floor, Boston, MA 02116, and whose
telephone number is: (617) 223-0920
28 FLRA-ALJ; Case No. 6-CA-1037 May 17, 1983
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, Respondent, and NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNSEL, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns the prohibition on the carrying of
batons by Detention Officers at the Level II maximum security area for
Cubans at Fort Chaffee, Arkansas.
The carrying of batons had been authorized from September, 1980, until
on, or about, February 4, 1981, when the batons were unilaterally
withdrawn by Respondent. The issue is whether Respondent was required
to give the Union notice and an opportunity to bargain over the impact
and implementation of such action, i.e., "procedures which management .
. . will observe" and/or "appropriate arrangements for employees
adversely affected by the exercises of any authority under this section
by . . . management . . . ", as provided in Section 6(b)(2) and (3) of
the Statute. This case was initiated by a charge, dated February 9,
1981, initially received in Washington, D.C., on February 13, 1981, and
filed in the 6th Region on March 4, 1981 (G.C. Exh. 1(a), Tr. 74). On
May 29, 1981, the Regional Director refused to issue a complaint for the
reason that on February 12, 1981, a grievance, by Mr. James Martin, had
been filed which raised the same issue regarding the carrying of riot
control batons. On September 25, 1981, the General Counsel sustained
the Union's appeal and determined that Section 16(d) did not bar
consideration of the unfair labor practice charge filed on March 4,
1981, and remanded the case to the Regional Director for further action.
The Complaint and Notice of Hearing issued on January 6, 1982 (G.C.
Exh. 1(d)) and hearing was set for March 15, 1982. By Order dated
February 23, 1982, the hearing was rescheduled for May 5, 1982) (G.C.
Exh. 1(h)); by Order dated April 28, 1982, the hearing was indefinitely
postponed because of budget problems (G.C. Exh. 1(j)); by Order dated
May 25, 1982, the hearing was rescheduled for July 21, 1982 (G.C. Exh.
1(1)); On June 18, 1982, Respondent filed a Motion for Dismissal (G.C.
Exh. 1(n)); by Order dated July 7, 1982, the hearing was again
indefinitely postponed (G.C. Exh. 1(p)); by Order dated September 16,
1982, Respondent's Motion for Dismissal was referred to the Chief
Administrative Law Judge for disposition (G.C. Exh. 1(t)); by Order
dated September 21, 1982, the Chief Administrative Law Judge denied
Respondent's Motion to Dismiss (G.C. Exh. 1(v)); by Order dated
November 16, 1982, the hearing was rescheduled for November 16, 1982
(G.C. Exh. 1(x)); by Order dated October 15, 1982, the hearing was
rescheduled for November 18, 1982 (G.C. Exh. 1(z)); by Order dated
November 4, 1982, the hearing was rescheduled for November 17, 1982
(G.C. Exh. 1(bb)); by Order dated November 15, 1982, the hearing was
once again postponed indefinitely (G.C. Exh. 1(dd)); by Order dated
November 24, 1982, the hearing was scheduled for January 11, 1983, at a
place to be determined (G.C. Exh. 1(ff)); and by Order dated December
16, 1982, the place of hearing was fixed. Pursuant thereto, a hearing
was duly held on January 11, 1983, in Dallas, Texas, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and to present oral
argument. Respondent renewed its Motion to Dismiss, pursuant to Section
16(d) of the Statute, at the hearing and ruling thereon was deferred.
At the close of the hearing, February 11, 1983, was fixed as the date
for mailing post-hearing briefs and the General Counsel and Respondent
each timely mailed a most helpful brief, received on, or before,
February 15, 1983, which have been carefully considered.
Upon the basis of the entire record, I make the following findings and
conclusions:
I. This proceeding is not barred by Section 16(d).
Article 3, Section G, of the Agreement provides, in part, as follows:
"G. The parties recognize that from time to time during the
life of the agreement, the need will arise for management to
change existing Service regulations covering personnel policies,
practices, and/or working conditions not covered by this
agreement. The Service shall present the changes it wishes to
make to existing rules . . . and existing practices to the Union
in writing. The Service recognizes that this obligation exists at
the national, Regional, and District level when such changes are
to be made. The Union will present its views (which must be
responsive to either the proposed change or the impact of the
proposed change) within a set time after receiving notice from
management of the proposed change. The term will be:
Ten Work days at District Level
"If disagreement exists, either the Service or the Union may
serve notice on the other of its interest to enter into formal
negotiations on the subject matter. . . . " (Exh. 2 to
Respondent's Exh. 1(n).
Article 3, Section G, Concerns wholly the right of the Union to
receive notice, and conversely the duty of the Service to give the Union
notice, of any desired changes in existing rules and practices; the
right of the Union to present its views; and the right of either the
Union or the Service to demand negotiations. Because these are
peculiarly Union rights they do not concern any individual unit
employee's conditions of employment (see, Article 32B.) and in the
absence of persuasive evidence that the grievance, although filed by an
individual, was in fact a Union grievance, assertion of an Article 3,
Section G. violation in an individual employee grievance would not,
pursuant to Section 16(d) of the Statute, bar the Union's election of
the unfair labor practice procedure. That is, the aggrieved employee
could not validly raise the Article 3, Section G. violation as an
individual grievance. To be sure, there is some evidence that Mr.
Martin acted on behalf of the Union, for example, he was President of
Local 1589 in Portland, Oregon; he did inform his supervisor that he
was a Local officer of the Union; he did call the Executive Vice
President of the Union, Mr. Leis, and discuss his informal grievance;
he did mail a copy of his informal grievance to Mr. Leis (Exh. 3 to
Respondent's Motion For Dismissal, G.C. Exh. 1(n)); and he did mail
copies of his step 2 formal grievance to both Mr. Leis and to Mr. James
A. Broz, Union Safety and Health Director (Exh. 5 to Respondent's Motion
for Dismissal, G.C. Exh. 1(n)).
I have considered the evidence carefully and do not find that Mr. Martin
either was authorized to file an Article 3, Section G. grievance on
behalf of the Union or that the Union had any knowledge of an Article 3,
Section G. grievance having been filed prior to its unfair labor
practice charge.
Thus, Mr. Martin's informal grievance of February 7, 1981, made no
reference to Article 3, Section G. and, although the record shows that
Mr. Martin informed his supervisor, Mr, Wilson, on February 7, 1981,
that he had spoken to Mr. Leis about the grievance, there is no basis to
infer that Article 3, Section G. had been discussed since it was not
mentioned in the informal grievance. On February 9, 1981, Mr. Michael
G. Harpold, President of the Union signed the charge herein which
specifically alleged that on, or about, February 5, 1981, Respondent
implemented a new rule which thereafter prohibited bargaining unit
members from carrying riot control batons; that "The Union was not
informed in advance of the change and was not given the opportunity to
bargain," in violation of Sections 16(a)(1) and (5) of the Statute.
This charge was received by the Authority in Washington, D.C. on
February 13, 1981 (G.C. Exh. 1(a)) /2/ and, although not "filed" in
Region 6 until March 4, 1981, in fact had been received by the Authority
on February 13, 1981. It was not until February 12, 1981, that Mr.
Martin, for the first time, in his step 2 grievance referred to Article
3, Section G, the Union had filed its charge alleging both a failure of
Respondent to give the Union notice in advance and the failure by
Respondent to give the Union an opportunity to bargain. Mr. Martin, by
inference, may have alleged that there was no notice of intended change,
although this was not specifically alleged, and, clearly, he did not
allege in his grievance a refusal to negotiate. Accordingly, I conclude
that the Union neither authorized Mr. Martin to file an Article 3,
Section G. grievance on its behalf not knew that Mr. Martin had made any
reference to Article 3, Section G. in his individual grievance prior to
Mr. Harpold's signing and mailing his charge on February 9, 1981.
Indeed, I further find that the charge herein was signed and mailed
prior to Mr. Martin's initial reference to Article 3, Section G.
Consequently, the charge herein is not barred by Section 16(d) of the
Statute.
II. Findings
1. The National Immigration and Naturalization Service Council,
American Federation of Government Employees, AFL-CIO (herein, also,
referred to as the "Union") is the recognized exclusive representative
for all non-professional, non-supervisory personnel of the Immigration
and Naturalization Service (hereinafter, also referred to as "INS" or as
Respondent) except for the Border Patrol.
2. On May 8, 1980, as the result of the sudden influx of Cuban
expellees, Fort Chaffee, Arkansas, was made a temporary processing
center. Contrary to initial expectations, "temporary" continued far
longer than anticipated and the Fort Chaffee Processing Center was not
closed until February, 1982.
3. The Cubans had come to the United States after their government
had banished a large number of criminals, mental patients, and other
social and economic undesirables. The Cubans collected at Fort Chaffee
were the residual group who could not immediately be resettled.
4. Within Fort Chaffee there were various government agencies,
including the United States Army, the United States Marshal Service,
United States Park Police, Federal Protective Service, Public Health
Service, and the Immigration and Naturalization Service (TR 44, 96).
Detention officers, deportation officers, and immigration officers from
various Immigration Offices from all over the United States were
detailed into Fort Chaffee. The standard detail lasted about 30 to 35
days. In addition, Respondent hired 25 temporary employees (TR. 30, 43,
44, 91, 92).
5. Sometime in September, 1980, Level II was created within Fort
Chaffee and was under the exclusive control of Respondent. Level II was
a maximum security area for those Cubans who exhibited antisocial
tendencies and for the hard core criminals. Level II was about 300
yards wide and about 4 miles long and was located about a mile from the
general compound where most Cubans were housed. It was enclosed by
concertina wire and fences (Tr. 22, 45). The Cubans in Level II were
nasty, hard to get along with, violence prone, anti-supervision,
abusive, dregs of society, and practiced troublemakers who repeatedly
made weapons out of materials located within Level II, such as machetes
and knives out of parts of the steel bunks, daggers out of springs and
jagged glass from broken windows.
6. Initially, there were about 240 Cubans in Level II (Tr. 47, 48).
Gradually, the identified convicted criminals were removed to the Fort
Chaffee stockade or transferred to federal prisons so that by the end of
October, 1980, there were about 156 Cubans in Level II and by November
11, 1980, the number had been further reduced to about 55 or 60.
7. INS officers assigned to Level II worked 12 hour shifts, 7 days a
week. There were usually about 20 to 25 officers working each shift
(Tr. 21, 112). Unlike the practice at its permanent processing centers,
at Level II the INS officers were required constantly to be present in
the detention area and to mingle with the detainees. Also unlike its
practice at its permanent processing centers, in September, 1980,
Respondent issued its officers full riot gear including mace, gas
grenades, shields, flak jackets, helmets and riot batons. This
equipment was worn, or carried, by officers at all times within the
detention area, and was used by the officers to ward off attacks by the
Cubans, which occurred with great frequency, to break up fights among
the Cubans themselves, and to maintain order.
8. Mr. G. L. Blancett, Staff Officer INS Detention and Deportation
Branch, Washington, D.C., was sent to Fort Chaffee in October, 1980, to
take charge of Level II. He found that there was a considerable number
of convicted criminals still within Level II, " . . . not the type that
we were supposed to be holding" and that, "The tension there was
extremely high" (Tr. 94). Mr. Blancett had the identified criminals
removed to the stockade or taken to the federal prison at Atlanta (Tr.
97, 98) and with the identified criminals removed and the Cuban
population in Level II otherwise reduced (Tr. 101), he decided that to
lower the tension he would remove from use by the officers of flak
jackets, gas grenades, gas masks, and helmets. Mr. Blancett testified
that no civil disturbances occurred after removal of this equipment (Tr.
100); however, the officers retained the riot batons and Mr. Blancett
testified that,
"I wasn't ready and prepared to take the batons away from the
officers at that time . . . Because of the possibilities of
something flaring up, a riot or something" (Tr. 101).
Mr. Blancett left Fort Chaffee on November 11, 1980, and was
succeeded by Mr. Dan McDonald, Supervisory Detention and Deportation
Officer from the El Paso Processing Center. Mr. James F. Conley,
Supervisory Deportation Officer, Chicago, Illinois, on January 27 or 28,
1981, succeeded Mr. McDonald.
9. Mr. Conley testified that while he was at Fort Chaffee (he left
on February 22, 1981 (Tr. 120)) there was an average of 25 Cubans in
Level II (Tr. 113). Despite the removal of identified criminals and the
reduction of the Cuban population, Mr. Conley testified that the Cubans
remaining were,
" . . . troublemakers, people that couldn't get along with the
general population" (Tr. 112) . . . were nasty individuals to
begin with and hard to get along with and completely
anti-supervision, but they heaped a lot of abuse on the officers
who had to deal with them" (Tr. 115).
Nevertheless, after talking to Mr. William Nolan, overall officer in
charge at Fort Chaffee (Tr. 117), on February 4, 1981, Mr. Conley
ordered the INS officers to turn in their batons. No prior notice was
given to the Union or to the employees and no explanation was made to
the employees and the batons were locked in a storage locker in an
unused barracks in Level II (Tr. 24, 50, 74, 75, 115, 117, 121, 122).
Officers at Fort Chaffee were upset by the decision and contacted Mr.
Normal G. Fisher, Union Vice President for the Union's Southern Region
which includes the State of Arkansas (Tr. 59, 61). On, or about
February 7, 1981, Mr. Fisher informed Mr. Harpold of the removal of the
riot batons (Tr. 70) and each, Mr. Fisher and Mr. Harpold, talked to Mr.
Conley (Tr. 119). Mr. Harpold testified that Mr. Conley was reluctant
to discuss it but said, " . . . the decision was not going to be
changed."
10. Mr. Harpold then called Mr. David Crossland, Acting Commissioner
in Washington, D.C., and requested to bargain about the change. Mr.
Harpold testified that Mr. Crossland responded that, "the decision had
been made and that they were going to back the decision and there was
nothing to bargain about" (Tr. 72).
11. Thereafter, Mr. Harpold called Mr. Ekberg, in Respondent's Labor
Relations Branch in Washington, D.C., and Mr. Simon, Office of Detention
and Parole, Washington, D.C., and asked to bargain the impact and
implementation and their response was,
" . . . the decision was made and that they were going to
sustain the decision, that there was just nothing to talk about"
(Tr 73).
12. Following removal of the batons, there were several assaults by
Cuban prisoners against INS officers in Level II. One employee
testified that he had been bitten and kicked by Cubans and also had his
thumbs broken by a Cuban. He also testified that several other officers
had been assaulted by Cubans after removal of the batons. Mr. Conley
recalled two incidents which occurred after the batons were taken away,
one in which an INS officer was kicked and another in which an officer
was struck (Tr. 116).
There is no dispute that Respondent's Handbook, which set forth its
national policy, ordinarily prohibits the carrying of weapons, including
riot batons, inside detention areas (Res. Exh. 2; see also,
Administrative Manual 2798.56.01, Res. Exh. 2, Tr. 86). Nor, or course,
is there any dispute that, notwithstanding its general policy,
Respondent in September, 1980, issued riot gear, including batons, to
its offices at Level II and permitted, if it did not require, such
weapons to be carried at all times inside Level II. To be sure, the
authorized practice of carrying batons within the detention area was as
atypical as the circumstances which gave rise to the practice; but
batons were carried by Respondent's Officers in Level II continuously
from September, 1980, until February 4, 1981.
Before discontinuing the use of any riot gear, Respondent removed from
Level II identified criminals and otherwise substantially reduced the
detainee population of Level II. Respondent's motive for its decision
to remove the last of the riot gear, namely the batons, is not
questioned. The issue is whether the carrying of the batons had become
a condition of employment in Level II so that Respondent was obligated
to give the Union notice of its decision and the opportunity to bargain
as to the impact and implementation. For reasons set forth hereinafter,
I conclude that Respondent was obligated to give the Union notice of its
decision and the opportunity to bargain as to impact and implementation.
In Department of Health, Education and Welfare, Region V, Chicago,
Illinois, 4 FLRA No. 98 (1980), I held that to constitute a condition of
employment contrary to a negotiated agreement such practice must:
"(a) be known to management; (b) responsible management must
knowingly acquiesce; and (c) such practice must continue for some
significant period of time."
Judge Scalzo, in United States Nuclear Regulatory Commission, 6 FLRA
No. 9, 6 FLRA 18 (1981), cited and followed this criteria, and, in each
instance, the Authority adopted this conclusion. By like token, a
practice contrary to existing rules or regulations may, as Respondent
concedes, (Respondent's Brief, p. 27), also ripen into a condition of
employment. There is no possible question here that the practice was
known to management and that responsible management had knowing
acquiesced as Respondent issued the batons in September, 1980, and
batons were continuously and knowingly carried by all officers in Level
II from the time of their issuance until February 4, 1981. The only
criteria in question is the last, namely, whether the practice had
continued for some significant period of time. Under the circumstances,
where the practice was instituted by management, applied to all officers
in Level II, was continuous for nearly five months, and the conditions
which had given rise to management's institution of the practice,
including the required constant intermingling of officers with detainees
who were still, despite the reduction of their numbers, as Mr. Conley
conceded, "troublemakers . . . nasty individuals . . . hard to get along
with and completely anti-supervision" and abusive, had not changed, the
practice of carrying batons had ripened into a condition of employment
for employees in Level II. As a condition of employment, Respondent was
not free to change the practice without giving the Union notice of the
decision to terminate the practice of carrying batons and affording the
Union the opportunity to negotiate as to impact and implementation,
i.e., "procedures which management . . . will observe . . . " and/or
"appropriate arrangements for employees adversely affected by the
exercise" of such authority by Respondent, as set forth in Section
6(b)(2) and (3) of the Statute. Respondent violated Sections 16(a)(5)
and (1) of the Statute by its failure to give the Union notice and an
opportunity to negotiate as to impact and implementation before it
implemented the change of the established practice of carrying batons in
Level II, United States Department of Agriculture, Plant Protection and
Quarantine, Animal and Plant Health Inspection Service and National
Association of Agriculture Employees, formerly The Federal Plant
Quarantine Inspector's National Association, Case No. 6-CA-1195
(OALJ-82-60, March 10, 1982), and further violated Sections 16(a)(5) and
(1) by its refusal to negotiate, at the specific request of the Union,
as to impact and implementation after the change had been unilaterally
implemented.
United States Department of Justice, Immigration and Naturalization
Service, Southern Region, El Paso, Texas, 11 FLRA No. 27, 11 FLRA 90
(1983); Department of the Interior, U.S. Geological Survey Conservation
Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA No. 65, 9
FLRA 543 (1982).
The duty of management to bargain on the impact and implementation of
an exercise of a reserved management right does not prevent the exercise
of that right, although, as the Court of Appeals for the District of
Columbia Circuit admonished under somewhat different circumstances, in
American Federation of Government Employees, AFL-CIO, Local 2782 v.
Federal Labor Relations Authority, F.2d, 112 LRRM 3112 (1983), " . . .
the Authority cannot find a union proposal regarding adversely affected
employees to be nonnegotiable simply because the proposal envisions some
constraints upon rights generally reserved . . . to management" (112
LRRM at 3116); not may a union under the guise of impact and
implementation negotiate the decision of management itself. Department
of Defense Dependents Schools and Overseas Education Association, Case
No. 3-CA-1585, OALJ-82-16, Administrative Law Judge Decisions Report,
No. 8 (April 15, 1982). Neither the fact that Respondent established a
react team (the record shows that response by the react team sometimes
took 10 to 15 minutes) or that the Union did not request negotiations
when Mr. Blancett on, or about November 11, 1980, withdrew part of the
riot gear issued in September, 1980, affected the Union's right to
negotiate concerning impact and implementation of the removal of the
batons, the use of which had become a condition of employment of Level
II. Nor is there any question that Respondent's change of this
condition of employment had an immediate impact on unit employees, both
as the result of the employee's concern for their safety and the ensuing
physical injuries suffered by unit employees at the hands of the Cuban
detainees.
As noted above, the Fort Chaffee Processing Center was closed in
February, 1982. Although this substantially changes the remedy, it does
not render this proceeding moot as the underlying issue, Respondent's
duty to negotiate as to impact and implementation of its exercise of a
reserved management right, is very much an on-going issue. In agreement
with General Counsel, I conclude that, since bargaining unit employees
were detailed into Fort Chaffee from all over the United States, the
only adequate remedy is nationwide posting at each facility where
bargaining unit employees are located (General Counsel's Brief, pp.
15-16). See, United States Department of Labor, OALJ-82-106 (July 1,
1982); Internal Revenue Service (District Office Unit), Department of
the Treasury, OALJ-82-105 (June 30, 1982).
Accordingly, having found that Respondent violated Sections 16(a)(5)
and (1) of the Statute by its unilateral change of an established
condition of employment without affording the Union an opportunity to
negotiate as to impact and implementation and by its refusal thereafter
to negotiate as to impact and implementation, it is recommended that the
Authority adopt the following.
Pursuant to Section 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Section 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders
that the United States Department of Justice, United States Immigration
and Naturalization Service shall:
1. Cease and desist from:
(a) Instituting changes in established conditions of
employment, pursuant to a reserved right of management, without
first notifying the National Immigration and Naturalization
Council, American Federation of Government Employees, AFL-CIO, the
exclusive representative of its employees, and affording such
representative the opportunity to negotiate about the procedures
that management will observe in implementing such a change and
concerning appropriate arrangements for employees adversely
affected by such a change.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of 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) Post at each of its facilities nation-wide exclusive of
facilities of the Border Patrol, including each of its permanent
Processing Centers and at each of its Deportation and Detention
Offices, 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 Commissioner, United States
Immigration and Naturalization Service, 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 customarily are posted.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Pursuant to Section 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director, Region 6, Federal Labor
Relations Authority, P.O. Box 2640, Dallas, Texas 75221, in
writing, within 30 days from the date of this Order as to what
steps have been taken to comply herewith.
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to with reference to the initial "71" of the Statute
reference, e.g., Sections 7116(a)(1) and (5) will be referred to simply
as "Sections 16(a)(1) and (5)."
/2/ Mr. Harpold testified that he filed it, "With Washington, D.C.
because we hoped to get a stay out of the special counsel" (Tr. 74).
Mr. Richard T. Linnemann, For the Respondent
Susan E. Jelen, Esquire, For the General Counsel
Mr. Michael G. Harpold, For the Charging Party
WE WILL NOT change any established condition of employment, pursuant
to a reserved right of management, without first notifying the National
Immigration and Naturalization Council, American Federation of
Government Employees, AFL-CIO, and affording it an opportunity to
negotiate about the procedures that management will observe in
implementing such a change and concerning appropriate arrangements for
employees adversely affected by such a change.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in its exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL notify the National Immigration and Naturalization Council,
American Federation of Government Employees, AFL-CIO, of any intended
changes in established conditions of employment, pursuant to a reserved
right of management, and, upon request, negotiate concerning the
procedures for implementing and/or appropriate arrangements for
employees adversely affected by such change.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature/(Title))
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 6,
whose address is: P.O. Box 2640, Dallas, Texas 75221, and whose
telephone number is (214) 767-4996.
27 FLRA-ALJ; Case No. 7-CA-1191 May 25, 1983
DAKOTAS AREA, AGRICULTURAL RESEARCH SERVICE, SCIENCE AND EDUCATION
ADMINISTRATION, U.S. DEPARTMENT OF AGRICULTURE, Respondent, and AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3748, Charging Party
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute," and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
Pursuant to a charge filed on May 6, 1981, by the Charging Party, the
Regional Director of Region VII of the Federal Labor Relations Authority
(hereinafter, the "Authority"), investigated and, on September 30, 1981,
filed the complaint initiating this proceeding.
The Complaint alleges that in or about February 1981, and at various
times thereafter Respondent did engage in, and is engaging in unfair
labor practices in violations of 5 U.S.C. 7116(a)(1) and (5). /1/ The
violative act is alleged to be the unilateral implementation of a space
reorganization plan, which included the installation of carpeting and
porous room dividers in the Insectary at Respondent's facility at Fargo,
North Dakota, and the relocation of employees in the Insectary, without
first completing ongoing negotiations regarding the implementation
procedures and adverse impact of the plan on unit employees. Respondent
denies violating the Statute.
The case was first scheduled for a hearing on November 3, 1982, then
November 15, then December 7, and was finally heard on January 14 and
15, 1983, in Fargo, North Dakota.
At the commencement of the hearing, the complaint was amended to
allege that the unilateral implementation of certain aspects of the plan
occurred "(i)n or about November and December 1980, February 1981, and
at various times thereafter, including March 6, 1981" (TR 7-8).
At the hearing, the parties appeared, adduced evidence, and examined
witnesses. Briefs were filed by all the parties on March 4, 1983.
On April 13, 1983, Respondent moved to dismiss the portion of the
complaint which relates to the installation of carpeting, on the ground
that the Charging Party, since March 1983, has not represented the only
employee to have been provided a carpeted office space, namely Barbara
Thorman Riemann. A copy of this Authority's Certification of
Representative was attached to the motion. The certificate shows that
"(a)ll professional employees" are excluded from the unit. The General
Counsel opposes the motion on the ground, inter alia, that the evidence
of record does not establish that Ms. Riemann was or is a professional
employee; that whether she was or is does not cure the alleged
violation of the Statute in 1981 and 1982; and that the evidence does
show that she was a member of the unit, during those years, and that
other unit employees are adversely affected by the carpeting, as well.
For the above reasons stated by the General Counsel, Respondent's Motion
to Dismiss Complaint should be denied. The record shows that, while she
probably was a professional employee, she was a bargaining unit employee
during the period at issue. See findings of fact 1, 9, and 13, infra.
The record also shows that other unit employees could be affected by the
carpeting. See findings 9, 30, 32-35, 37, and 38, infra.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I make the following findings
of fact, conclusions of law, and recommended order.
1. It is admitted that the Charging Party is a labor organization
which, on May 16, 1978, was certified as the exclusive representative of
a unit of employees at Respondent's facilities in the Dakotas and Alaska
area. The unit, originally and at the time of the hearing, included
both professionals and nonprofessionals. /3/
2. There is a chapter of the Charging Party (hereinafter also
referred to as the "Union") at Respondent's facilities at Mandan and
Fargo, North Dakota, and Brookings, South Dakota. The head of each
chapter is a Union vice-president.
3. As of the time of the hearing, the parties did not have a
collective bargaining agreement. Negotiations on one were ongoing
throughout 1980 and until at least April 27, 1981. The practice was to
negotiate during one week of each month and to schedule, one month or so
in advance, the topic for each negotiating session.
4. On May 2, 1980, Sharon Grugel, Vice-President of the Fargo
Chapter, alerted Respondent, by letter, that she had heard a rumor that
management was planning a space reorganization at the Fargo laboratory
(also referred to as "MRRL") and that the Union expected to have
adequate time to scrutinize such a plan and to negotiate over its impact
prior to implementation. As of that date, she was the Union's point of
contact at Fargo, and had not been notified by Respondent of the MRRL
reorganization.
5. On May 7, 1980, Respondent's Administrative Officer, Dale R.
Lemke, responded to Ms. Grugel's May 2, 1980 letter and informed her
that certain research leaders were currently discussing and drafting
some recommendations regarding the location of several new scientists,
and that once a plan had been devised management intended to bring it to
the Union's attention prior to implementation. Mr. Lemke did not attach
to his May 7, 1980 letter a copy of the April 21, 1980, MRRL space
reorganization plan, which had been submitted on April 25, 1980, by the
four research leaders at MRRL, including George Gassner, to Respondent's
Director, Dr. Claude H. Schmidt. Dr. Gassner is a doctor of insect
genetics and cell biology and was responsible for the planning and
execution of the changes here at issue. See TR 185-186.
6. By letter of May 21, 1980, Ms. Grugel reminded Director Schmidt
that the Union was concerned that it had not yet received a copy of an
MRRL organization plan. By letter of May 27, 1980, Dr. Schmidt assured
Ms. Grugel that the Union would have an opportunity to study the
proposed plan and provide input; but he did not furnish the Union with
either the April 21, 1980 plan or a May 14, 1980 revised plan.
7. On June 9, 1980, Mr. Lemke notified the Union, by letter, of
certain changes to be made in the MRRL. These changes were described in
a general, summarized fashion as compared with the detail of the April
21, or May 14, 1980 plans, which were not provided at this time.
Compare GC 8 and GC 11B & C and GC 30D. Specifically this notice to the
Union revealed, inter alia, that Insectary room " . . . I-116 w(ould) be
divided into two laboratory units and Room I-105 w(ould) be divided into
two office units by using acoustical partitions (; and t)he office
space w(ould) be carpeted. . . . " See GC Ex. 8. The notice also stated
that the use concept of the Insectary had been changed; that Maurice
Degrugillier and Dr. Riemann, with their research projects, would be
moved into those spaces; and that the move of Mr. Degrugillier was
"urgent" in order to make room for another scientist, Dr. Roehrdanz, who
was scheduled to arrive. See GC 8.
8. By letters of June 16, 1980 and June 23, 1980, the Union
requested Respondent's Director Schmidt to furnish specific data
concerning the changes described by Mr. Lemke's letter of June 9. On
June 20, 1980, Union representatives met with and obtained verbal
information from Mr. Lemke and the research leaders.
However, not all the requested data was furnished on June 20.
9. By letter dated June 27, 1980 from Mr. Lemke, Respondent
furnished the Union for the first time a copy of the May 14
reorganization plan also hereinafter referred to as the "Plan"), and
acknowledged that six bargaining-unit employees would be affected by
phase 1 of the Plan which involved the Insectary. One such employee was
Barbara Thorman, now Barbara Thorman Riemann, who married her
supervisor, Dr. Riemann, on October 20, 1980. In this letter, Mr. Lemke
noted that implementation of phase 1 would not begin until July 7 or
later, and that negotiations over apparently unrelated matters (EEO and
Broadform Cooperative Agreements) had been scheduled for July 21.
10. By letter of July 2, 1980, Ms. Grugel informed Respondent's
Director of the Union's serious concerns about the adverse impact which
the Plan would have upon the health and safety of affected unit
employees. Specifically, that concern was over the fact that the
Insectary originally was designed to house and rear insects away from
offices and laboratories, so as to minimize the exposure of employees to
the insects. Exposure to such insects on a regular basis develops
sensitivity and allergenic responses in the employees who work with the
insects. Management was aware of this problem, both at the time the
Insectary was designed and built, and on July 2, 1980. Management was
also concerned that moth scales from the Degrugillier-Riemann research
projects were contaminating the environment in the whole of the main
building and damaging expensive equipment throughout the whole building.
The containment of insects was "better" in the Insectary (TR 222-223).
11. Vice-President Grugel reiterated part of the Union's June 27
data request by letter dated July 3, 1980. Respondent's Acting Area
Director responded by letter of July 15, 1980 to the Union's July 2 and
3 letters. He wrote that the first part of Phase 1, moving non-unit
employee Degrugillier to the Insectary, was planned to be accomplished
by the week of July 21 and that space was needed for three scientists
being recruited, and one who was to report by the end of July, plus Dr.
Roehrdanz.
12. On July 18, 1980, the Union, by Ms. Grugel, notified Director
Schmidt that the Union requested negotiations over the impact and
implementation of the space reorganization plan referenced in Mr.
Lemke's June 9, 1980 letter. Ms. Grugel also requested that Director
Schmidt establish a time with the Union in which to bargain over this
matter.
13. By letter to Ms. Grugel dated July 23, 1980, Mr. Lemke
acknowledged the Union's request to negotiate, announced that Respondent
was proceeding with moving Mr. Degrugillier that week, stated that
management would notify the Union in advance concerning the
implementation of future segments of the reorganization, and proposed
that negotiations on this matter be during the week of September 15,
1980.
The week of September 15, 1980, already had been scheduled by the
parties for negotiating other unrelated issues, including issues related
to the non-existent collective bargaining agreement, EEO, and a
Broadform Cooperative Agreement. After an exchange of correspondence,
in which the Union, inter alia, proposed to negotiate the impact of the
space reorganization prior to September 15, 1980, and Respondent
proposed evening sessions during the week of September 15 which the
Union rejected, both parties ultimately agreed to negotiate this issue
the week of September 15.
14. Unknown to the Union throughout this entire period of time,
management already had begun to implement other portions of the Plan
which concerned the Insectary, and to deal directly with an affected
unit employee, Barbara Thorson Riemann. Ms. Riemann did not represent
the Union at any time material to this case. Dr. Gassner and Ms.
Riemann's immediate supervisor, Dr. Riemann, discussed with Ms. Riemann,
in April or May 1980, her objections and reluctance concerning her move
to the Insectary. Ms. Riemann is an "entomologist" (TR 16). Also, Dr.
Gassner admitted that the initial reorganization plan for Room I-105 did
not require carpeting or porous dividers, but that Ms. Riemann requested
to have carpeting put in the Room I-105 office area. Not only did Ms.
Riemann request carpeting, she also chose the type and color of
carpeting and participated in the selection of color-coordinated porous
fabric panels which would be used to partition I-116 and divide I-105
into three offices. Ms. Riemann did not write up any carpet order prior
to July 1980, but may have measured Room I-105 as early as May 1980 in
planning for the carpeting. The carpeting and partitions requested by
Ms. Riemann actually were ordered and received, although the carpeting
subsequently was exchanged by Dr. Gassner as being unsuitable. Dr.
Gassner conceded that as far as the reorganization plan was concerned,
the partitions could have been nonporous, could have been made of vinyl
or similar material, and that there was no requirement for carpeting.
Dr. Gassner also conceded that Insectary manager Birkenmeyer had worked
in I-105 for at least a year without carpeting or porous acoustical
partitions.
15. By letter dated November 4, 1980, Respondent notified the Union
that partitions had been ordered for Room I-116 and were let for bid for
I-105. However, Respondent did not notify the Union when the partitions
were to be installed in Room I-116 or I-105. Even as of that date,
Respondent also had not informed the Union that the partitions were to
be made of a porous fabric. Moreover, because cloth partitions (as well
as carpeting) had never been used in the Insectary, and all Insectary
surfaces were designed to be easily washable, the Union had no reason to
anticipate that management intended to install cloth partitions. Also,
on November 4, 1980, Respondent furnished to Ms. Grugel the April 21
plan which the Union had requested on August 29.
16. Between the time of the Union's first demand, on July 18, 1980,
to bargain over the impact and implementation of the Plan and the
scheduled meeting date of September 15, the parties did not meet to
negotiate concerning carpeting the Insectary offices. The parties met
in June and July to negotiate EEO and Broad-Form Cooperative Agreements,
but there were no proposals on the table during those negotiations which
concerned the Plan. During the July 23 bargaining session, however, the
Union asked Respondent's chief negotiator, James Brunger, why Mr.
Degrugillier had been moved into the Insectary that week, after the
Union had asked to bargain. Mr. Brunger responded that the Union had
not shown any adverse impact associated with Mr. Degrugillier's move,
but that the implementation of the Plan was "reversible" (TR 387).
17. The only other scheduled meeting between the Union and
management representatives concerning this matter occurred on July 21,
1980. On that day, Dr. Gassner called for a meeting with Insectary
manager Birkenmeyer and about 15 other employees. Union representatives
Grugel and Filipi attended the July 21 meeting. /4/ The meeting was
intended for all concerned persons, including unit employees, Mr.
Birkenmeyer, and the Union. Dr. Gassner testified that Ms. Grugel
attended as a concerned employee who wanted information on what
management was planning to do, and that he was unfamiliar with the
Union's structure or with Ms. Grugel's status as the Fargo chapter's
vice-president. Dr. Gassner had not been designated or authorized by
Respondent to bargain with the Union concerning this matter at any time
during June or July 1980.
18. On September 17, 1980, the Union furnished Respondent with the
Union's proposals and was prepared to negotiate. The Union's chief
negotiator, Pat Filipi, either read or went through each section of the
Union's proposals and gave Respondent's negotiator, Mr. Brunger, an
opportunity to ask questions. Management did not respond.
19. The next meeting between the parties concerning this matter
occurred on November 21, 1980 when, at Ms. Grugel's request, the Union
met to obtain information about FY 81 space plans and objectives.
Respondent had furnished the Union the FY 81 plan by letter dated
November 4, 1980. Also on November 4, 1980, Respondent's Director
notified all employees that the Plan was underway, that some employees
had already been moved and that some air filtration units had been
installed. The movement of employees and air filtration units were the
subject of the Union's proposals presented to Respondent for negotiation
on September 17, 1980, and which had not as yet been negotiated.
20. During the latter part of November, the carpeting which had been
ordered during the summer finally arrived. Dr. Gassner elected not to
install the carpeting, however, because he felt that the jute backing
and thickness of the nap would be difficult to clean and would be
undesirable in a science office space. Dr. Gassner then ordered
different carpeting from the same commercial supplier, agreed with the
supplier to store the original carpeting at the MRRL for the supplier
until the new carpeting arrived, and agreed with the supplier that the
new carpeting would be installed upon its delivery. Dr. Gassner told
Ms. Riemann, Mr. Birkenmeyer and employee Sheila Sears, during the
latter part of November that he was inclined to exchange the original
carpet. Dr. Gassner did not notify Union representative Grugel,
however. Ms. Grugel testified that management did "delay" installation
of the carpeting and partitions, as a result of Union concerns; and I
credit her testimony.
21. Sometime during November or in early December 1980, Respondent
proceeded to install some of the partitions in Room I-116 of the
Insectary, after notifying the Union that they were ordered and would be
installed. Not until after their installation did the Union discover
that the partitions had cloth panels. Despite this partial
implementation of the Plan, the Union remained interested in proceeding
with bargaining, and submitted supplemental and revised proposals to
Respondent by letter dated November 24, 1980. In these proposals, the
Union proposed nonporous panels for use as partitions. On December 2,
1980, Respondent's four research leaders wrote to the Union and
announced that they were proceeding with the Plan, as the Union had not
clearly identified any adverse impact. However, the leaders recognized
the benefit and ease of washing and disinfecting a nonporous vinyl panel
and advised the Union that such panels would be placed in "critical"
insect and media handling areas (GS 37, comment 3). The four leaders
dismissed as "unwarranted" the Union's concerns about the cloth panels
already installed in Room I-116, and left them in place.
22. On December 4, 1980, during a previously scheduled negotiation
session between the parties, the Union's then chief negotiator, Mr.
Birkenmeyer, asked Respondent's chief negotiator, Mr. Brunger, to
discuss the space reorganization. Mr. Birkenmeyer also requested a
special negotiating session for this issue. Mr. Brunger responded that
he would get back to Mr. Birkenmeyer on that request. Mr. Birkenmeyer
added that if management were willing to set a date to negotiate this
matter, the Union would even consider withdrawing a pending unfair labor
practice charge.
23. On December 5, 1980, Mr. Brunger responded that Management would
negotiate the space reorganization the week of January.19, 1981.
24. By letter dated December 9, 1980, the Union reiterated its
desire to complete negotiations prior to further implementation of the
reorganization, and suggested it also was willing to negotiate any time
prior to January 19, 1981.
25. The scheduled meeting for January 19, 1981, was not held. The
record shows only that the Union did not postpone it.
26. During the week of February 3, 1981, Respondent presented the
Union with Respondent's first written counter-proposals on the Plan.
The Union also submitted counter-proposals during that week. Before the
parties actually negotiated the substance of their respective proposals,
a dispute arose concerning whether the impact and implementation
bargaining should be memorialized separately or included in the general
collective bargaining agreement, being negotiated. The Union wanted to
negotiate the space reorganization independently of the general
collective bargaining agreement, sign off on it, and allow management to
proceed with the reorganization. The parties were in such disagreement
over whether the impact and implementation negotiation should be a
separate agreement, or part of the general collective bargaining
agreement that the Union suggested bringing in a mediator. Mr.
Brikenmeyer made a comment: "I think we are at impasse" (TR 552). Mr.
Brunger "corrected" him and said that "we are not at impasse yet until
the mediator comes in and declares impasse" (TR 552). Mr. Birkenmeyer
then agreed.
27. The parties next met to bargain during the week of March 2,
1981. The mediator was present during this session. As of March 2,
1981, Respondent had not announced any particular deadline as to when
the carpeting or remaining porous partitions must be installed or that
an emergency or exigency had arisen which required immediate
implementation. Nor had Respondent declared any Union proposals to be
nonnegotiable, or that an impasse existed.
During the week of March 2, the mediator shuttled between the parties
and attempted to obtain their respective positions. On March 3, the
mediator requested that the Union furnish data to explain its objection
to the carpeting and porous paneling. The Union had Sheila Sears
research, prepare, and submit to the mediator, on March 5, a summary of
data she had obtained. See GC 50. The subjects of space
reorganization, the carpeting, and the porous dividers were still on the
table, as of March 5.
28. On March 5, 1981, Mr. Brunger announced to the Union, in the
midst of bargaining and in the presence of the mediator, that Respondent
would install the carpeting on March 6, and that the carpeting would be
different than which had been delivered in November 1980. The Union was
unaware that Dr. Gassner had arranged to exchange the originally
ordered, shag carpeting with that which was to be installed on March 6.
Mr. Brunger first informed the Union about the nature of the carpeting,
on March 6, when he showed the Union a sample of the new carpeting and
Dr. Gassner's hand-written carpet specifications. The Union requested,
on March 5, that Mr. Brunger inform Dr. Gassner of the ongoing
bargaining and dissuade Dr. Gassner from proceeding. Although Mr.
Brunger told the Union he would relay its request, and knew of no
requirement that the installation occur on March 6, Mr. Brunger did not
attempt to discourage Dr. Gassner from proceeding.
When Dr. Gassner informed the management negotiating team of his
decision to go ahead and install the carpet, Mr. Brunger "took sort of a
neutral position," that is, he did not answer "one way or the other," as
to what Dr. Gassner should do (TR 370). Dr. Gassner, who had spent "a
part of every day" on the carpeting/partition issue for the period
between July 1980 and March 1981, apparently took this response, or no
response, of Respondent's chief negotiator, Mr. Brunger, to mean that he
could go ahead.
As to this point in the negotiations, Mr. Brunger testified that the
possibility of agreement was "slim and diminishing," but that he was
"certainly hopeful" that the mediator "could help us with (the issues of
carpeting and porous room dividers)" (TR 566-567).
29. The carpet was installed on March 6, 1981. Dr. Gassner
explained that he had agreed with the carpet supplier that the supplier
could put the carpet in whenever it arrived. Dr. Gassner also testified
that office equipment had been ordered for Dr. Riemann prior to March
1981, but had not yet arrived. Dr. Riemann was one of the three persons
scheduled to move to room I-105 in the Insectary. Ms. Riemann was
another. The third was Mr. Degrugillier, who had moved in July 1980.
According to Dr. Gassner, if Dr. Riemann's equipment had not arrived for
another 6 months, Dr. Riemann would not have moved to the Insectary for
another 6 months. Then this equipment did arrive, and when Dr. Riemann
moved was not established. Ms. Riemann was relocated shortly after the
carpeting was installed.
30. Notwithstanding Respondent's decision to implement on March 6,
the Union asked the mediator to attend the next scheduled bargaining
session on April 27, 1981, because the Union wanted to continue to
bargain. Respondent made no attempt to break off negotiations over the
issues of the carpeting and the partitions. The parties did meet on
April 27, without the mediator, at which time the Union again raised the
subject of the Plan. Mr. Brunger did not declare any of the Union's
proposals to be nonnegotiable, but said that management would not
negotiate an agreement separate from the overall collective bargaining
agreement. There was no substantive bargaining over the merits of the
Union's proposals, on April 27.
31. The impact of the implementation of the Plan is described by the
evidence in several ways. During the period of November 1980 through
March 1981, at least six employees were directly affected by the
reorganization or were reassigned to the Insectary. Additionally, some
eight to ten fulltime employees, plus some parttime employees, work in
the Insectary and became subject to the impact of the implemented change
in the Insectary.
32. The Insectary was designed to minimize occupational health
hazards to those employees who work around insects. The design included
coated cement block walls and washable interior surfaces. No carpeting
was introduced until the March 6, 1981, date here at issue. The purpose
of the Insectary was to house as many insects as possible and take them
away from the main building where the offices and laboratories were
located. The health of employees in the main building was being
affected adversely, including a problem with allergy reactions to the
insect "scales, frass, body parts such as fly wings, dietary
ingredients, etc." (GC 13.1). Therefore, the initial concern of the
Union to the Plan was that space in the Insectary was to be allocated to
offices and laboratories, rather than be used to move more insects out
of the main building. See GC 13. The Union regards the Insectary as
"by no means completely safe," but it definitely is the best facility
(for insects) . . . because of its air handling system (GC 13.2).
33. Even in the Insectary, employees suffer from work-related
allergies that have developed over the years. For example, the union's
chief negotiator in March 1981, Dale Birkenmeyer, had to take a medical
retirement, on February 26, 1982, because of insect allergies that
developed after serving for 17 years as an entomologist at Respondent's
facilities.
34. The concerns of the Union were increased when it discovered that
cloth partitions and carpeting were to be used in the offices and
laboratory spaces to be relocated in the Insectary. This increased
concern arose from the fact that mold, fungus and visible and
non-visible insect contaminants can become trapped and accumulate in
cloth surfaces, which are not as amenable to antiseptic cleaning as
plastic dividers and the tile floor upon which the carpeting was glued.
35. A work survey dated September 9, 1980, showed a "correlation
between allergy problems with people who handle insects as opposed to
the people who worked in administration and were not exposed to insects"
(TR 462-463).
36. At the request of the Union, two inspectors from the
Occupational and Safety Health Commission ("OSHA"), on January 19, 1981,
inspected conditions in the Insectary. One inspector was an industrial
hygenist. The inspectors discussed with Dr. Gassner the "primary
problem" of air flow of "allergen material" that "would possibly
contaminate another area adjacent to an area that was being worked in"
(TR 347). At that time some of the cloth partitions were installed.
Dr. Gassner testified that he was "left with the impression that it
would not be a harmful situation to have the partitions and carpet in
that area" (TR 348). Dr. Gassner was then shown the report prepared by
the OSHA inspector and dated May 13, 1981. See TR 350 and GC 46. Page
4 of the report states: "Offices with carpeting and fabric-type
partitions should never be used for insect rearing as these are prime
breeding areas for molds and insect particle retention which have
already been identified as presenting a problem in other work areas in
this facility."
The OSHA report also stated that: "After discussions with an
allergist, and a medical review of a sampling of employees' medical
records, conclusions simply must be drawn that prolonged exposure to
various antigens (such as insect debris and mold spores) in the work
environment have created many localized and systemic reactions to these
particular antigens" (GC 46.3). The report found an "incidence rate of
employee allergies that (wa)s four times that of the normal population.
. . . " (GC 46.3). The report cited 24 medical articles such as
Biological Evaluation of Carpeting and Controlling Respiratory Hazards
in Insectaries. See addendum 3 to GC 46. The OSHA report concluded
that "the insectary area should be utilized as an insectary only" (GC
46.4).
After being shown the OSHA report, Dr. Gassner, who is neither a
medical doctor nor an industrial hygienist, testified that: "May I say
generally I do not agree with this report" (TR 350). /5/
The results of the investigation and OSHA's conclusions were not
discussed with Respondent and the Union until April 29, 1981, after the
carpeting and at least some of the cloth partitions were installed.
On June 9, 1981, OSHA issued to Respondent a Notice of Unsafe or
Unhealthful Working Conditions. /5/ See GC 55. One of five items cited
as "causing or likely to cause death or serious physical harm to
employees" was: "Insect debris and/or mold retaining materials, i.e.,
carpeting or fabric covered partitions, (which) were in use or planned
to be used in or in proximity to insect handling or insect rearing
areas" (GC 55, par. 1(d)).
37. Respondent has not authorized a monitoring or sampling of the
level of contaminants in the cloth partitions and carpeting. However,
Respondent has, in other respects, shown a concern for employee health
and safety, such as the installation of high efficiency air filters to
purify the air and the replacement of the carpet originally ordered.
38. The cloth dividers are in the I-116 laboratory work area, face
the hallway between I-105 and I-116 and the breeding rooms, and cover
the interior walls of the three office spaces in the I-105 area. There
are no doors between I-116 and the short hall which leads to the I-105
area and the breeding rooms.
Insects are in I-116 for work purposes; in the breeding rooms; and, at
times, are in the connecting hallway which passes I-105 when being
transported, or when flying. Thus, the carpeting in I-105 is adjacent
to work areas in which insects are present, at times. It is not
possible to contain all of the insects, especially moths, and prevent
them from flying about at will and landing on the cloth partitions,
although moth escapees are not "regular" (TR 300). The airborne debris,
scales, and contaminants produced by such an escapee may be relatively
small at first, but can have the cumulative effect of producing a
silt-like layer of contaminants which can even disrupt distant
laboratory equipment. The two scientists moved to the Insectary were
working on a moth research project.
39. Airborne contaminants from the insects are capable of
environmentally polluting the laboratory, disrupting the equipment,
adhering to surfaces, and affecting allergic employees. The employees,
however, are usually unable to see the contaminants which are floating
in the air or settling onto surfaces. This problem was identified by
employee Sheila Sears during a routine sampling of the Insectary's air
on March 3, 1982. Her monitoring data, which was authenticated and
approved by Dr. Gassner, showed that air current in the Insectary
carried aspergillus spores from an insect cage on one side of the cloth
partition in room I-116, over the top of the partition, and heavily
contaminated a petri dish collector on the other side. Three
bargaining-unit employees work in this area. This particular spore was
a pathogenic fungi which invades the human lung, grows into a fungus
ball, and produces bronchial pulmonary aspergillosis. Other forms of
aspergillus and molds were detected in the air in the I-105 carpeted
office area of Mr. Degrugillier during this period of time.
40. The only reason for ordering and installing the cloth dividers
in the I-116 and I-105 areas was for acoustical purposes. However, no
acoustical surveys were conducted; and the effect of the partitions and
carpeting on the level of noise is unknown. Insectary manager
Birkenmeyer worked in the I-105 office area for a year without carpeting
or partitions. Sometime after the selection had been made, the Union
informally presented evidence to Dr. Gassner that nonporous metal
partitions are healthier and safer than porous, fabric partitions.
41. The carpeting was installed in one day, on March 6, and Ms.
Riemann moved into the Insectary shortly thereafter. The carpeting in
her office measures 5 feet by 13 1/2 feet. Her new office is
"equivalent" to her old one (TR 233). The evidence is not clear as to
when the dividers were installed or how long it took. The carpeting,
which covers a total area of 20 feet by 13 feet, cost approximately
$632, with an installation fee of $78.00. It is glued down to prevent
movement, and is fastened at the edges with metal edging and screws.
The furniture in the I-105 area could be removed, the carpeting removed,
and the furniture replaced in about one day. The fabric panels in the
partitions are anchored by screws, and can be removed easily, simply and
quickly.
In the opinion of Dr. Gassner, the removal of the carpet and partitions
"would disrupt the projects down there" (TR 265).
42. "Some say that carpet prevents material from tracking in and
there is some indication that it's better to have the carpet down than
tiles because there is entrapment in the carpet which can be vacuumed up
whereas if you have tile or hard resilient floor and the material can
then scatter off of that and also be spread around more by static
electricity and this sort of thing, so you get repelling off of a hard
surface floor where you get entrapment on a carpet floor . . . " (TR
266-267). Dr. Gassner believes that this is the situation with the
carpeting here involved.
43. No evidence was adduced as to how frequently the carpeting at
issue is vacuumed, although there was testimony that it was "well cared
for and vacuumed better . . . than the tile floor" (TR 36).
44. As of the time of the hearing, the Union had "no documented
(evidence of) adverse impact" on employees from putting down the
carpeting and installing cloth partitions (TR 208).
45. Dr. Gassner testified that he would not have "put them (the
carpeting and cloth partitions) in if (he had) felt they were unsafe or
had evidence to that effect" (TR 377). There was no evidence from
employees in the Insectary that they were concerned about the health
aspects of the carpeting and cloth partitions. However, an employee who
goes into the Insectary "once a week, twice a week" (TR 162) for
"possibly four minutes, five minutes" (TR 182) did testify, extensively,
to concern over the matter, both personally and as a union official.
See TR 122, 135-136, 139, 141, 142, 163-164, 175, 178, and 202-204. And
the Union discussed its concerns with Dr. Gassner during numerous
informal discussions after the reorganization became known to the Union.
See TR 342. Dr. Gassner had one of his employees talk to a
microbiologist on the safety of using carpeting in the area. See TR
341-342. The response of the microbiologist was not shown. Dr. Gassner
also sought advice from a research geneticist, who advised him, inter
alia, that the problem with moths, which were being handled in the
Insectary, "is one of the scales being a physical irritant to the
respiratory tract which then compounds any allergenic response" (GC 19).
The research geneticist gave no advice in regard to carpeting and cloth
partitions in areas whose moths were being handled. There was evidence
that a very short synthetic carpet which is vacuumed daily and shampooed
monthly would be safe, and the bacterial counts comparable to those on
tiled floors. See GC 50A and B.
46. Ms. Riemann concurred in her move to the Insectary, was
supportive of putting down carpeting, and feels that it "in no way is an
unsafe condition" (TR 36). Her office is small and does not have a lot
of traffic in and out. Ms. Riemann believes that taking the carpet out
of her office "would disrupt all our office area" (TR 63). Ms. Riemann
has been, at times, at odds with the opinion of union representatives
and is not a union member.
1. The parties are in seeming agreement over the well-established
principle that an agency cannot implement a change in a policy,
practice, or condition of employment, which has an adverse impact upon
bargaining-unit employees, absent agreement or impasse following
good-faith bargaining. See RBr 8-9 and GCBr 23. The basic issues here
are, first, whether there was an adverse impact and, second, whether
impasse had been reached when implementation occurred.
A. There was a reasonably foreseeable adverse impact from the
implementation by Respondent of its space relocation plan.
A union official conceded that, even at the time of the hearing, it
could "document" no adverse impact from the changes instituted by
Respondent in 1980 and 1981. See finding 44, supra. However, there was
a reasonably foreseeable adverse impact of considerable proportion-- and
this is enough. See Department of Health and Human Services, Social
Security Administration, Field Assessment Office, Atlanta, Georgia, 11
FLRA No. 78, 11 FLRA 419 (1983).
The reasonably foreseeable impact was twofold. By changing the
concept of the Insectary, as a place to house as many insects as
possible and instead filling up the Insectary with offices and
laboratories, employees located in the main building would continue to
suffer the allergy reactions attendant upon the unhealthy situation
existing in the main building from the insect handling functions being
performed there.
Furthermore, employees working in the Insectary also suffer from
allergies caused by exposure to insect debris, among other things. The
Union had a justifiable concern about the introduction of materials into
the Insectary to which mold, fungus, and visible and non-visible insect
contaminants could become entrapped and accumulate, and which were not
as amenable to antiseptic cleaning as other materials. Such allergies
develop slowing, over a course of many years, a fact well illustrated by
the medical retirement of Respondent's Insectary manager because of
insect allergies that developed during a 17-year stint with insects at
Respondent's facilities.
The fact that the bargaining-unit employee most affected in the
Insectary, Barbara Thorson Riemann, was supportive of the changes made
and wants to keep them is not determinative. She obviously enjoys the
comfort of a carpet underfoot and the attractiveness of the colorful
carpet and panel dividers, about which she was consulted by management
and had a hand in choosing, and does not share the Union's view of the
matter. Indeed, she made clear at the hearing, that she was, at times,
at odds with the opinion held by union representatives and is not a
union member.
The Union's concerns are more broadly based and cover the entire
bargaining unit located in the Insectary, or whose duties bring them
into the Insectary-- a number that exceeds eight. The broader view of a
union is a reason why it is an unfair labor practice for an agency to
bypass union representatives chosen by the bargaining-unit employees and
instead seek out a single unit employee who may be amenable to, or
supportive of, a proposed change.
The case relied upon by Respondent in which no adverse impact was
found involved a temporary reassignment. See Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 5 FLRA No. 45 (1981) cited at pages 14-5 of
Respondent's brief. The case here, involving a potential serious health
hazard to fulltime and parttime employees, is thus distinguishable.
B. Negotiations were ongoing at the time Respondent implemented the
changes.
This is most clearly illustrated by the installation of the
carpeting, on March 6, 1981.
The record shows that while, at that point, chances for agreement may
have been "slim and diminishing," as Respondent's chief negotiator
characterized the negotiations of the week of March 2, even he remained
"certainly hopeful" that the mediator "could help us with (the issues of
the carpeting and porous room dividers)." See finding 28, supra.
And negotiations on the issue continued at an April 27, 1981
bargaining session.
Contrary to the view expressed at pages 12-13 of Respondent's brief,
negotiations over the issue had not reached "a blind alley," a
"deadlock," a "deadend," or a road or situation where there was "no
escape" or "no exit," according to dictionary definitions quoted by
Respondent. The fact is that the parties had not reached an "impasse"
as that term is defined in regulations promulgated pursuant to this
Statute, namely having reached "that point in the negotiations of
conditions of employment at which the parties are unable to reach
agreement, notwithstanding their efforts to do so by direct negotiations
and by the use of mediation or other voluntary arrangements for
settlement" (5 CFR 2470.2(e)).
Here the mediator had only been assisting for a few days, and had
just received data he had requested from the Union, when Respondent
implemented one of the most disputed portions of the Plan, the
installation of carpeting in the Insectary. The mediator had not yet
declared an impasse; nor had either party. /6/
These facts distinguish U.S. Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 39 (1981), relied upon
by Respondent at page 14 of its brief.
The General Counsel has shown, by a preponderance of the evidence
(its statutory burden under 5 U.S.C. 7118(a)(7)), that Respondent has
committed the unfair labor practices alleged in the amended complaint,
by its implementation of changes that had reasonably foreseeable adverse
impact of a considerable nature upon bargaining-unit employees, before
formal negotiations over the changes had been completed. This was not
the good-faith bargaining required by 5 U.S.C. 7116(a)(5). And it
interfered with the statutory right of employees "to engage in
collective bargaining with respect to conditions of employment (to work
in a healthy environment) through representatives chosen by (them)." See
5 U.S.C. 7102(2) and 7116(a)(1).
2. The tough question presented by this case is whether to grant the
request of the General Counsel and the Charging Party for an order that
the carpeting and the partitions be removed, pending negotiations-- the
so-called status quo ante order.
The appropriateness of any status quo ante remedy is determined "on a
case-by-case basis," by balancing the nature and circumstances of the
particular violation against the degree of disruption in agency
operations that would be caused by such a remedy. See, e.g., Federal
Correctional Institution, 8 FLRA No. 111, 8 FLRA 604, at 606 (1982). It
is necessary to consider: (1) whether, and when, notice was given to
the Union by Respondent concerning the action decided upon; (2)
whether, and when, the Union requested bargaining on the procedures to
be observed by the agency in implementing such action and on the
appropriate arrangements for employees adversely affected by the action;
(3) the willfulness of the Respondent's conduct in failing to discharge
its bargaining obligations; (4) the nature and extent of the impact
experienced by adversely affected employees; and (5) whether, and to
what degree, a status quo ante remedy would disrupt or impair the
efficiency and effectiveness of Respondent's operations. See Federal
Correctional Institution, 8 FLRA at 606.
As to (1), Respondent gave the Union early enough notice, on June 9,
1980, that employees were to be relocated to the Insectary, and that
carpeting and partitions were to installed in the space to which they
were relocating. However, Respondent was slow in furnishing vital
details, so that the Union could intelligently assess the adverse impact
on employees and formulate proposals for bargaining.
And Respondent gave no advance notice of the type carpeting and
partitions to be installed, a matter which was of serious concern to the
Union and relevant to the health of employees. Only one day's notice
was given as to the installation of the carpeting. And no advance
notice was given of the dates the partitions were to be installed.
As to (2), the Union made a timely request to bargain. The request
was made on July 18, 1980, after having received official notice of the
changes on June 9 and requested details of the changes on June 27.
As to (3), Respondent displayed a wanton unwillingness to discharge
its bargaining obligations. Its managers seem to believe that they can
implement changes to accommodate carpet companies and scientists without
regard to the status of formal negotiations between official
representatives of management and labor at the bargaining table. Before
formal negotiations on Union proposals had even begun or Respondent had
submitted counter proposals to those of the Union, management officials
undercut the Union by proceeding with implementation of portions of the
changes, as suited them. By the week of March 2, 1980, Respondent's
chief negotiator had concluded that chances for agreement, while slim,
were not hopeless. Nevertheless a management official carried out one
of the most disputed portions of the relocation plan, the installation
of carpeting in the Insectary; and Respondent's chief negotiator chose
not to advise him to the contrary, and also apparently ignored the
Union's request that he attempt to dissuade management from proceeding.
Respondent's chief negotiator acknowledged that he knew of no
requirement that the carpet installation occur on March 6, before the
mediator had even had time to consider the data put together by the
Union to substantiate its objections to it and the cloth partitions. It
is obvious that management proceeded with the installation of the
carpeting, on March 6, because of a promise made to the carpet company
to accommodate it, and not because the carpet installation was impeding
completion of the relocation. /7/ Also, it does appear that Respondent
devoted excessive time, at the bargaining table to its insistence that
any agreement reached be a part of the general collective bargaining
agreement. /8/
As to (4), there is a reasonably foreseeable adverse impact of
serious proportion upon the health of employees whose duties regularly
bring them into the Insectary, from the installation of materials that
are not easily cleanable. /9/ The fact that the impact could not be
documented, some two year later, may be attributed, in part, to the
failure of Respondent to authorize a monitoring and sampling of the
level of contaminants in the cloth partitions and the carpeting. Also,
it takes an exposure of many years before an employee may become
disabled from allergies caused by working in areas contaminated by
insects. The impact of the relocation of offices and laboratories to
the Insectary also had reasonably foreseeable adverse impact of
considerable proportion upon employees suffering from insect allergies
in the unhealthful atmosphere in the main building. The Insectary was
designed to house as many insects as possible and take them out of the
main building, which lacks an adequate air-handling system. Filling up
available space in the Insectary with offices and laboratories, instead
of holding areas for insects, therefore, did impact upon the health of
employees left in the main building.
As to (5), the General Counsel and the Charging Party do not seek
relocation of the employees as part of the status quo ante remedy being
sought. See CPBr 10 and GCBr 28. Accordingly, I do not consider this
as a possible remedy. They do, however, seek removal of the carpeting
and the partitions.
Removal of the cloth panels in the partitions appears to be a
screwdriver-type of operation that could be quickly and easily
accomplished, with no disruption of the business of the Insectary. At
the most, some privacy would be lost and the acoustical level in their
work areas might be raised for three employees. On balance, an order to
remove the panels is deemed appropriate.
The carpeting removal would be more disruptive but not excessively
so. The carpeting covers a small area, is in one piece, and could
probably be removed overnight, at a minimal cost.
Furniture could probably be removed and replaced in one day. Thus,
the disruption to the three employees working on the carpet would not be
of a long duration. The noise level in their work areas might increase
to some undetermined level. But noise level was not shown to be a
problem with other employees working in the Insectary before carpeting
and cloth partitions were installed.
However, the record indicates that the health of employees could be
protected by daily vacuuming and monthly cleaning of the carpet. It is
therefore concluded that the best interests of all would be served by
giving Respondent an option of exercising such care or removing the
carpeting, pending the completion of negotiations which are to be
ordered.
On balance, the limited status quo ante relief indicated above seems
appropriate. The parties have not yet reached a general collective
bargaining agreement-- a fact that emphasizes the need for Respondent to
realize that unilateral implementation of changes in working conditions
adversely affecting unit employees will not be countenanced. And the
adverse impact involves the health of employees-- a factor heavily
weighing in the need to restore the status quo ante.
Respondent notes that "the Authority has declined to order status quo
ante remedies in all but the most serious cases," and cites three. See
RBr 16 citing Internal Revenue Service, Chicago, Illinois, 9 FLRA No.
73, 9 FLRA 648, 651 (1982), involving unilateral implementation of a
modified office space plan to which the union objected for "health and
safety" reasons, among others; U.S. Customs Service, Region V, New
Orleans, Louisiana, 9 FLRA No. 15, 9 FLRA 116 (1982), involving the
creation of a new shift which was one of management's reserved rights to
do; and "9 FLRA No. 75," a case which does not deal with this issue and
must be a misquote.
Respondent correctly observes that the Internal Revenue case is
particularly relevant as it concerns office space. But several facts
serve to distinguish it. The parties in Internal Revenue have
successfully negotiated a collective bargaining agreement; whereas the
parties here seem to be getting nowhere in negotiating a contract and
Respondent needs a sharp reminder of its bargaining obligations. Also,
the "health and safety" concern of the union in Internal Revenue
apparently related to heating and air conditioning problems which were
beyond the control of Internal Revenue and which it had attempted to
resolve "on many occasions" (9 FLRA at 660). Here, potentially serious
hazards to employees' health are posed by the carpeting and cloth panels
in the partitions; and Respondent has done nothing about them. Also,
negotiability issues were involved in Internal Revenue; but are not
present as to the issues here involved.
3. The Charging Party also asks that the order herein include an
order that: "any agreement reached as the result of negotiations will,
at the Union's request, be reduced to writing and be represented in a
written agreement separate and apart from any general collective
bargaining agreement" (CPBr 12). This issue appears to have been a
major stumbling block in the negotiations.
The Statute, of course, defines "collective bargaining" to include
execution, at the request of any party, of a "written document
incorporating any collective bargaining agreement reached" (5 U.S.C.
7103(a)(12)). But since the order to be recommended herein will
basically restore the status quo ante, and prohibit any further
implementation until bargaining is completed, it does not seem necessary
to include this additional order in order to protect fully the statutory
rights of the Charging Party. Respondent's hands will be tied until it
executes a written agreement, if any agreement is reached; and whether
the agreement is in the form of a separate agreement, or in the general
collective bargaining agreement should not matter to the Charging Party,
under these circumstances. Accordingly, such an order will not be
included, as not necessary.
4. The General Counsel seeks a posting of the order entered at Fargo
and Mandan, North Dakota, and Brookings, South Dakota. See GCBr 29. No
need is discerned for posting at any facility other than Fargo, however;
and the order will limit posting to that facility, which is the only
one where the changes at issue occurred and the adverse impact
reasonably foreseen.
5. Respondent urges, as "improper," the amendment of the complaint
to include "installation of the porous room dividers during November or
December 1980." See RBr 1. The basis of its argument appears to be the
lack of "adequate preparation to address this issue" (RBr 1-2). The
complaint named the installation of the dividers as being "(i)n or about
February 1981."
See GC1(d), par. 4. The management official most involved with their
installation, Dr. Gassner, testified at length as a witness for
Respondent. And the hearing was conducted over a two-day period at the
location of Respondent's facility, thus giving it time to secure any
additional evidence. Thus, I find that Respondent suffered no harm from
the allowance of the amendment.
6. The parties raise other issues in their briefs which, because of
the resolution of the issues reached herein, need not be resolved or
discussed.
It is found that Respondent has engaged in unfair labor practices, as
alleged in the complaint, and thereby violated 5 U.S.C. 7116(a)(1) and
(5).
Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C 7118, the
Authority hereby orders that Respondent shall:
1. Cease and desist from:
(a) Implementing any aspect of its Metabolism and Research
Laboratory Space Reorganization Plan ("Plan") at its Fargo, North
Dakota, facility without first completing negotiations with the
Charging Party regarding the implementation and impact of the Plan
upon employee working conditions, to the extent consistent with
law and regulations.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Negotiate with the Union, to agreement or impasse,
regarding the implementation and impact of those aspects of the
Plan, including the installation of the carpeting and cloth
partitions and the relocation of employees, which were implemented
in the Insectary during November and December 1980 and February
and March 1981.
(b) Notify the Union and, at the Union's request, bargain
concerning any proposed changes affecting conditions of
employment, pursuant to the Plan, or any proposed reorganization
plan, to the extent consistent with law and regulations.
(c) Remove the cloth panels from the partitions installed in
the Insectary at the Fargo, North Dakota facility in November and
December 1980 and in March 1981 and not reinstall them until an
agreement or impasse is reached during negotiations over the
matter.
(d) Clean the carpeting installed on March 6, 1981, in the
Insectary at the Fargo, North Dakota facility and continue to
clean it on a monthly basis, and vacuum it, on a daily basis, or
remove said carpeting, until such time as agreement or impasse is
reached during the negotiations over the matter.
(e) Post, at its facilities at Fargo, North Dakota, copies of
the Notice to All Employees, attached hereto as Appendix B, on
forms to be furnished by the Acting Regional Director, Region VII,
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Director of Dakotas Area, Agricultural
Research Service and Education Administration, U.S. Department of
Agriculture, and shall be posted and maintained by him for sixty
(60) consecutive days thereafter, in conspicuous places, including
all bulletin boards and other places where notices to employees
are customarily posted. The Director shall take all reasonable
steps to insure that such Notices are not altered, defaced, or
covered by any other material.
(f) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Acting Regional Director, Region VII,
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.
/1/ Section 7116 provides, in pertinent part, as follows:
(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; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter. . . .
/2/ The following abbreviations will be used herein. "TR" refers to
the transcript. "GC" refers to the exhibits of the General Counsel and
"R" refers to those of Respondent. Multipage exhibits will be
referenced by an exhibit number followed by a page or paragraph number.
"GCBr" refers to the brief of the General Counsel, "RBr" to that of
Respondent, and "CPBr" to that of the Charging Party.
The unopposed motion of the General Counsel to correct the transcript
is granted. I have added several additional corrections, pursuant to 5
CFR 2423.19(r). See Appendix A hereto.
/3/ The certification was changed, on April 5, 1983, to exclude
professionals. See the Certificate of Representative attached to
Respondent's Motion to Dismiss Complaint and the acknowledgement in
footnote 2 to the General Counsel's response to the motion.
/4/ Until December 1980, Respondent regarded Mr. Birkenmeyer as a
supervisor and refused to recognize him as a unit employee or Union
representative.
/5/ The OSHA report and notice may have been subsequently "withdrawn"
(TR 350-351). In any event, they are relief upon herein only to
illustrate the reasonableness of the Union's two concerns that (1) the
cloth partitions and carpeting were likely to have an adverse impact
upon employees' health, and that (2) the insectary should not be used
for offices and laboratories.
/6/ Respondent's assertion, at page 12 of its brief, that the Union's
representative had declared an impasse is a misinterpretation of the
record. See finding 26, supra.
/7/ Contrary to the positions of the parties (CPBr 6; GCBr 25; and
RBr 3-4), I do not conclude that either party unreasonably delayed the
data for actual bargaining. The parties had many issues before them,
and were devoting considerable time to them.
/8/ The Charging Party urges that reliance be placed on a refusal of
Respondent to comply with an order of this Authority in 6 FLRA No. 45.
See CPBr 7. The United States Court of Appeals for the Eighth Circuit
has declined to enforce that order and has disagreed with the
Authority's ruling that a Federal Agency is required to pay travel and
per diem expenses to employees representing a union in contract
negotiations. See U.S. Dept. of Agriculture v. Federal Labor Rel., 691
F.2d 1242 (1982). A petition for certiorari is now pending in that case
before the United States Supreme Court in No. 82-979 (filed December 13,
1982). Accordingly, I place no reliance on Respondent's actions in
regard to that case.
The Charging Party also urges that consideration be given to Rejected
Exhibits 62, 63, 65 and 66 as evidence of Respondent's "attitude and
because it is demonstrative of a knowledgeable and sophisticated
Respondent and not of a violator who is unfamiliar with the requirements
of the Statute." See CPBr 7. These exhibits involve settlement
agreements reached between the parties in other cases involving alleged
unfair labor practices. For the reasons stated during the hearing, I
decline to consider settlement agreements reached in other cases, as
being contrary to the public interest in encouraging parties to settle
disagreements between them. Parties will be reluctant to enter into
such settlements if they know they can be used against them in future
cases, on such grounds.
/9/ While there was evidence that the carpeting was "well cared for
and vacuumed better . . . than the tile file" (see finding 43, supra),
there was no evidence that the cloth partitions were vacuumed or washed
down at all. And the care needed for the carpeting was indicated as
being at least a daily vacuuming and monthly shampooing. See finding
45, supra. There was no proof that Respondent was giving the carpeting
this degree of care.
Stuart H. Fields, Labor Relations Specialist for Respondent
James J. Gonzales, Attorney for the General Counsel, Federal Labor
Relations Authority
Dale R. Birkenmeyer, Representative for the Charging Party
WE WILL NOT implement any aspect of the Metabolism and Radiation
Research Laboratory Space Reorganization Plan (Plan), at our Fargo,
North Dakota, facility without first completing negotiations with the
American Federation of Government Employees (AFL-CIO), Local 3748
("Union"), the exclusive representative of our bargaining unit
employees, regarding the implementation and impact of such
reorganization Plan upon employee working conditions, to the extent
consistent with law and regulation.
WE WILL notify the Union and, at the Union's request, bargain
concerning any proposed changes affecting conditions of employment
pursuant to this Plan, or any proposed reorganization plan, to the
extent consistent with law and regulation.
WE WILL negotiate with the Union to agreement or impasse regarding
the implementation and impact of those aspects of the Plan, including
the installation of carpeting and partitions and the relocation of
certain employees, which were implemented in the Insectary during
November and December 1980 and February and March 1981.
WE WILL clean the carpeting installed in the Insectary on March 6,
1981, and continue to clean it on a monthly basis, and vacuum it on a
daily basis, or remove it entirely, until such time as agreement or
impasse is reached during negotiations over the matter.
WE WILL remove the cloth panels from the partitions installed in the
Insectary in November and December 1980 and in March 1981, and not
reinstall them until an agreement or impasse is reached during
negotiations over the matter.
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of their rights as assured by the Federal Service
Labor-Management Relations Statute.
. . .
(Agency or 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
Acting Regional Director of the Federal Labor Relations Authority,
Region VII, whose address is: 1531 Stout Street, Suite 301, Denver,
Colorado 80202, and whose telephone number is: (303) 837-5224.
27 FLRA-ALJ; Case No. 6-CA-20291 April 22, 1983
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE, SAN
ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE, TEXAS, Respondent,
and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617,
Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., was initiated by a charge, filed on June 8, 1982
(G.C. Exh. 1(a)), which alleged that Respondent violated Secs. 16(a)(1)
and (2) of the Statute, "by giving . . . (Robert D. Murphy) a low
evaluation because of his membership in and activities on behalf of the
Union."
The Complaint and Notice of Hearing (G.C. Exh. 1(d)), issued on October
18, 1982. Paragraphs 7 and 10(a) of the Complaint allege that
Respondent violated Sec. 16(a)(1) by "telling the employee he was
getting a lower rating . . . because of the employee's union activities"
and Paragraphs 8, 9 and 10(b) allege that Respondent violated Sec.
16(a)(2) "by giving Murphy a low . . . rating" because of his
"membership in and activities on behalf of the Union." The Notice of
Hearing set the hearing for December 3, 1982, at a time and place to be
determined. By Order dated November 3, 1982, the hearing was
rescheduled for December 2, 1982 (G.C. Exh. 1(j)); by Order dated
November 15, 1982, was rescheduled for December 1, 1982 (G.C. Exh.
1(1)); by Order dated November 19, 1982, the hearing was again
rescheduled for December 2, 1982 (G.C. Exh. 1(n)), and by Order dated
November 24, 1982, was further rescheduled for January 10, 1983, in San
Antonio, Texas, at a place to be determined (G.C. Exh. 1(p), and by
Order dated December 30, 1982, the place of hearing was fixed, pursuant
to which a hearing was duly held in San Antonio, Texas, on January 10,
1983, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and to present oral
argument which each party waived. At the close of the hearing, February
10, 1983, was fixed as the date for mailing post-hearing briefs and the
General Counsel, Charging Party and Respondent each timely mailed a very
helpful brief, received on or before February 18, 1983, which have been
carefully considered. Upon the basis of the entire record, I make the
following findings and conclusions.
Mr. Robert D. Murphy is a non-destructive tester (inspector), WG-10,
at Kelly Air Force Base. Mr. Murphy has been a steward for American
Federation of Government Employees, Local 1617 (hereinafter, also,
referred to as the "Union"), the certified exclusive representative,
since 1971 when he was appointed unit steward; section steward 1977;
and section steward in non-destructive testing in 1981 and in November,
1981, branch steward. Mr. Murphy testified that he filed one grievance,
on behalf of a Mr. Nixon, on August 10, 1981, which did not go to his,
Mursphy's supervisors; that he received an EEO grievance from a Mr.
Barbosa which "never went through"; that on May 7, 1981, he filed a
classification appeal, which was presented to his immediate supervisor,
Mr. Aguilar, but was dropped by the employees; and that on December 4,
1981, he filed a class action with regard to night differential which
was related to a suit the Union had filed in the United States District
Court in Washington, D.C., in 1975. As branch steward, Mr. Murphy
attends management-union cooperation meetings every two months, each
meeting lasting about an hour and a half.
The record does not show that Mr. Murphy used official time for Union
activity other than attendance at the union-management branch meetings.
/2/
Mr. Murphy testified that in January, 1982, Mr. Aguilar came to his
work station and told him he should not be a branch steward (Tr. 19).
Mr. Aguilar denied having made any such statement (Tr. 50-51).
In May, 1982, Respondent made its first appraisals under the new
Civilian Potential Appraisal System (CPAS). Because the supervisors
rotate shifts in non-destructive testing, the two first-line
supervisors, Messrs. Pedro Aguilar and Johnny Reyes, Jr., jointly
appraised the approximately 37 employees under their supervision,
including Mr. Murphy. The appraisals were reviewed by General Foreman
Martin M. Rodriguez. On May 17, 1982, Mr. Aguilar met with Mr. Murphy
to discuss his appraisal. The meeting was in Mr. Aguilar's office and
only they were present. Mr. Murphy testified, in part, as follows:
" . . .
"So he opened it up and he started reading with number one,
'The employee is energetic on the job; is willing to exert effort
accomplishing tasks,' and he said, I have rated you a 4.
"A. It stands for, Slightly slow. /3/ And he told me, I am
thinking of about giving you a 3, but I am still going to leave it
at a 4, because I am-- I am going to grade you a 4, because you
use too much time doing union business.
. . . " (Tr. 17; 30-31)
"A. Well, he read all of the elements and told me as to the
reason why he rated me as much, but I didn't make any comments
because they didn't sound-- the reasoning didn't sound good to me,
so I didn't say anything, but I knew that I wasn't being graded
correctly."
(Tr. 31).
Mr. Aguilar testified, in part, as follows:
"A . . . It was like I did with the rest of the employees. I
called them in, and I asked them-- I showed them the CPAS. I told
them why they were there. It was for civilian potential appraisal
time, and by that time, they had an idea of what this system was
about. And I asked them if they had any questions as to-- they
needed to ask about what the appraisal was and if there was any
questions for them to ask.
"And then I would-- for Mr. Murphy, I gave him the CPAS and
asked him to go ahead and, you know, read it; go over the
dimensions, and then we can go over it. If he would like, we can
go over each dimension, or if you want to have any questions about
it.
"So if I can recall, Mr. Murphy did go over the CPAS. He read
all the dimensions, and he looked at it, and then he questioned me
on the-- I remember it was number 16 and number 18.
"A Element number 16 is, 'Compared to other individuals doing
about the same type of work, does the employee complete his/her
work (projects, duties and tasks) faster?' And he asked me, why
did he get a 4? And I told him that because he does tend to take
more time than other employees; he is one of my slower workers,
and compared to the other employees, that he was slightly slower.
"Q Okay.
"A And that is why I gave him a 4.
"And then he asked me about Number 18 . . .
"A Number 18 is, 'Compared to other individuals doing about the
same type of work, does the employee spend a greater percentage of
time on the job working, as opposed to socializing, sitting idle,
involved in personal affairs, taking breaks?' And I told him, That
is where you had your downfall, taking breaks, because at that
particular time, he would spend a lot of time in the break area.
And that is why I gave him a-- compared to other employees, he was
there most of the time each work day. In fact, he was there more
than all the other employees." (Tr. 45-57; see also, Tr. 64-65).
"Q Did you discuss element number one . . . with Mr. Murphy, on
which you rated Mr. Murphy a 4? . . .
"A He didn't question me on number four.
"Q I am sorry. Number one.
"A I am sorry. Number one.
"Q He did not question you on that?
"A No, sir.
"Q Okay.
"A As I can recall. Now, I may be-- my memory-- I remember he
questioned me on number 16 and 18, and I don't remember him-- in
fact, if he would have, I would have noted that. I keep personal
notes, and I mentioned 16 and 18 was the two that he questioned.
And I made note of that.
"Q So you did not tell Mr. Murphy he spent too much time on
union business in discussing element one?
"A No, sir.
"Q Did you tell him he spent too much time on union business at
any time during this discussion?
"A No, sir." (Tr. 50).
I have considered the testimony of Messrs. Murphy and Aguilar most
carefully and on balance I find that of Mr. Aguilar more convincing. It
is possible that dimension Number 1, "The employee is energetic on the
job; is willing to exert effort accomplishing tasks", could encompass
absence from duty site (see, Tr. 80); but Mr. Aguilar denied that this
was a consideration under dimension Number 1, indeed, he stated, " . . .
you can be at your station and not necessarily starting to do a good job
or getting to work" (Tr. 56), and certainly the matter is directly
addressed by question No. 18. Mr. Murphy's definition of the "4" rating
as "Slightly slow" strongly implies a usage relevant to question 16
rather than dimension 1.
Mr. Aguilar's testimony that Mr. Murphy, after receiving the CPAS,
questioned his rating on questions 16 and 18 appears more plausible.
Mr. Aguilar's testimony that Mr. Murphy was slightly slower and that he
spent more time than other employees in the smoking area was fully
corroborated by the testimony of Mr. Reyes. Mr. Rodriguez also
testified that when he visited the work area he saw Mr. Murphy in the
break area more frequently than other employees and that Mr. Murphy had
had some difficulty in becoming certified in one discipline (Tr. 105,
109). Accordingly, I credit Mr. Aguilar's testimony.
In crediting Mr. Aguilar's testimony, I have considered the fact that
Mr. Murphy had been a steward since 1971; and that the record does not
show, except for the hour and a half each two months for attendance at
union-management cooperation meetings, any increased duty time for union
activities after Mr. Murphy became branch steward. Moreover, the record
shows that this was the first appraisal of employees under CPAS and,
because the prior appraisal was so essentially different, no meaningful
comparison can be made in the absence of evidence, which is totally
absent, as to Mr. Murphy's comparative "standing" under the prior
appraisal vis-a-vis other employees in the working area. That is, while
Mr. Rodriguez testified that Mr. Murphy ranked in the lower one-third of
employees in non-destructive testing under CPAS, there is no indication
whatever as to Mr. Murphy's ranking under the prior evaluation system.
There is no doubt that Mr. Aguilar believed that CPAS was implemented to
prevent unduly high ratings (Tr. 49-50) and Mr. Rodriguez stated that he
reviewed the evaluations to be sure that the CPAS accurately reflect the
evaluations of each individual (Tr. 110). Mr. Wilborn did not agree
with his CPAS appraisal and felt it was too low (he also received some
"4s" but did not recall on which dimension or question) and Ms. Bloom
had been dissatisfied with her initial CPAS appraisal because she had
been appraised by a foreman, Mr. Ralph Lopez, for whom she had worked
only about three months and Mr. Rodriguez had her reappraised by Messrs.
Reyes and Aguilar and her reappraisal was "For the better" (Tr. 129);
but the record does show whether she agreed or disagreed with her final
CPAS appraisal. On dimension Number 13, Mr. Murphy's overall job
performance was rated 6, "Slightly above average."
I find the testimony of Messrs. Aguilar, Reyes and Rodriguez that Mr.
Murphy spent more time in the break area than other employees
convincing. The testimony of Messrs. Murphy and Wilborn and of Ms.
Bloom falls far short of disproving their testimony and, to the
contrary, tends to corroborate the testimony of Respondent's witnesses.
Thus, Mr. Murphy first testified that he did not consider going to the
break area to smoke was a "break" (Tr. 35); later he conceded that the
took "two or three" unscheduled breaks per day (Tr. 134); that "with
each one of those breaks I spend about maybe five or ten minutes.
Whenever I feel that the stress has lightened up, than I will go back to
work". (Tr. 134). Mr. Wilborn stated that, "I don't think anyone would
take more than, say two to three unscheduled breaks a day" and that
"This is including Mr. Murphy also" (Tr. 115); that he (Wilborn) would
"Either go to the restroom or maybe to the smoking area, smoke a
cigarette" (Tr. 114-115).
Ms. Bloom testified that she did not leave her work area on unscheduled
breaks (Tr. 125); that "For . . . myself, including our official
breaks, /4/ at least twice, but not to exceed more than three times"
(Tr. 126), which would have meant that she took either no unscheduled
breaks or not more than one unscheduled break; but later she changed
her testimony and she said, "I would say two" (Tr. 126) unscheduled
breaks.
The preponderance of the evidence does not support the allegation of
the Complaint that Mr. Murphy was given a low rating because of his
"membership in and activities on behalf of the Union." To the contrary,
the preponderance of the evidence shows that the ratings given to Mr.
Murphy were unrelated either to his membership in or activities on
behalf of the Union and, because I have credited Mr. Aguilar's
testimony, I find that Mr. Aguilar did not tell Mr. Murphy he was
getting a low rating because of his Union activities.
Accordingly, having found that Respondent did not violate Secs.
16(a)(1) and (2) of the Statute as alleged in the Complaint, it is
recommended that the Authority adopt the following:
The Complaint in Case No. 6-CA-20291 be, and the same is hereby,
dismissed.
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without reference to the initial "71" of the
Statute reference, e.g., Sections 7116(a)(1) will be referred to simply
as "16(a)(1)".
/2/ Mr. Aguilar testified, in part, as follows:
" . . . The only time Mr. Murphy was active in the union
business was whenever there was an employee-union branch level
meeting, and I can't recall any other time when he was called or
asked to any union activity." (Tr. 61).
/3/ Actually, it stands for "Slightly below average." (G.C. Exh. 2).
/4/ Of which there are two, not including lunch (Tr. 113, 126).
Major Lewis Brewer, For the Respondent
Steven M. Angel, Esquire, For the Charging Party
Elizabeth Ann Martinez, Esquire, For the General Counsel
27 FLRA-ALJ; Case No. 8-CA-20269 April 6, 1983
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
WASHINGTON, D.C., Respondent, and PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, Charging Party
Before: SALVATORE J. ARRIGO, Administrative Law Judge
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.
Upon an unfair labor practice charge filed by the Professional
Airways Systems Specialists (herein referred to as PASS or the Union) on
May 3, 1982 and subsequently amended on July 15 and August 2, 1982, the
General Counsel of the Authority, by the Regional Director for Region
VIII, issued a Complaint and Notice of Hearing on July 30, 1982 alleging
the Department of Transportation, Federal Aviation Administration,
Washington, D.C. (herein referred to as Respondent) violated section
7116(a)(1) and (5) of the Statute by soliciting employees' input,
opinions, and sentiments on personnel policies, practices, and matters
affecting working conditions, without first obtaining the Union's
consent.
A hearing on the Complaint was conducted on October 7, 1982 in Los
Angeles, California, at which time all parties were represented by
counsel and afforded full opportunity to adduce evidence, call, examine
and cross-examine witnesses and argue orally. Briefs were filed by all
parties and have been duly considered.
Upon the entire record in this matter /1/ and from my evaluation of
the evidence, I make the following:
On December 31, 1981 the Union was certified as the exclusive
collective bargaining representative for all employees of Respondent's
Airway Facility Division located in Respondent's regions, with various
exceptions. At all times material herein the Union has been the
exclusive representative of those employees.
On or about April 6, 1982 Respondent sent a memorandum to all
employees, including bargaining unit employees in the San Diego Airway
Facilities Sector, requesting that all employees advise Respondent of
their opinions on what the agency should de regarding an attached
document referred to as the "Jones Report." Comments were to be
submitted through the employees' supervisors, unless they preferred to
send them directly to the Regional Director of Respondent's
Western-Pacific Region, which includes the San Diego Airway Facilities
Sector. It is conceded that Respondent issued the memorandum
unilaterally, without prior notification to PASS, and at no time offered
to discuss with PASS the manner and means by which employee input would
be sought.
The Jones Report sent to employees was in telegram format and quoted
a March 17, 1982 news release issued by the Jones Committee, a task
force commissioned to inquire into management and employee relations at
FAA after the PATCO strike. /3/ The Jones Report, reproduced as sent,
stated in relevant part:
"After the PATCO strike on August 3 1981 Drew Lewis Secretary
of the Department of Transportation and Lynn Helms Administrator
of the Federal Aviation Administration appointed a task force to
investigate management and employee relationships within the FAA
particularly the Air Traffic Control System and recommend actions
for improvements . . . The task force today filed its requested
report. . . . The report includes the observations and
conclusions of the task force augmented by an evaluation of the
organizational climate based on survey findings conducted on
behalf and under the guidance of the task force by the Institute
for Social Research and a management review of the Air Traffic
Control System performed in association with the task force by
McKinsey and Company, Inc. an international management consulting
firm. The report documents the causes of deteriorating people
relationships within the FAA and tracks the consequences on the
performance of the FAA over a period of several years. It finds
these causes to include factors such as:
"1. Increasing variability in peak-time traffic activity
compared to non-peak time as total traffic volume grew rapidly
over the past 20 years causing pressure and anxiety in the system
during peaks and inefficiencies and dissatisfactions during the
valleys--
"2. Inadequate systems used to select train evaluate and
promote people to supervisory and management positions from within
the organization with both technical competence and skills in the
effective management and leadership of people--
"3. Pervasive employee attitudes throughout all levels of the
Organization that the FAA had little concern for employees poor
upward communication sensitivity and weak management support
systems--
"4. Organization structure supervisory systems and management
attitudes that were centralized rigid and insensitive creating a
mismatch with the people-- intensive variable and fast-paced
nature of Air Traffic Control work--
"5. Escalating militancy from PATCO exploiting
dissatisfactions within the controller personnel and pressuring a
management group dispirited by the pay cap on federal employees
and a perceived lack of support for field management from FAA
Regional Offices and Washington Headquarters.
"Further the report finds that though most employees enjoy
their work and share strong peer group relationships current moral
of most employees at almost all levels in the FAA is poor. The
remaining employees responded to the challenge of the post-strike
period with relief that the hassle with PATCO had ended and with a
determination to recover the air traffic system successfully but
current employees remain unhappy with the working environment.
Too most factors that had caused problems in the past are
reasserting themselves and the FAA seems headed toward more
people-related problems in the future."
The Jones Report then listed its recommendations:
"Key recommendations forwarded by the task force and detailed
in the report include the following general approaches:
"1. The FAA should place emphasis upon and be fully
accountable to the Secretary of Transportation and Congress for a
concern for the development of human resources as a legitimate and
vital step in providing a safe orderly efficient and accessible
airways system.
"2. The fulfillment of this responsibility requires managers
and management systems capable of obtaining the commitment of
talented employees to the goals of the organization and of
providing to these employees a concern for their legitimate
professional and personal needs. This is a demanding assignment
on individual managers but as well on the entire management system
because of the interconnectedness of relationships in an
organization. The need for managers capable of building teamwork
within a complex and technical organization requires people with
quality education and experience carefully selected constantly
trained and properly evaluated.
"3. The management of air traffic to produce smoother
workloads should be considered as a permanent policy. It would be
preferable to persuade user groups to accomplish this objective
with a form of market pricing rather than relying on FAA-Mandated
systems of flow control and general aviation reservations.
Smoother traffic produces substantial benefits to FAA work skills
people planning and working relationships and greater efficiency
in the use of airplanes airways airports control equipment
facilities and human resources throughout the aviation community.
"4. The adoption of a program of flexible staffing should
facilitate a better match of people resources to the varying
traffic and do so in a more cost-efficient manner.
"5. The close communication between the FAA and user groups
accomplished by Administrator Helms should be continued both at
the national level and extended as a responsibility of all field
managers of the FAA.
"6. The staff offices of airway facilities and air traffic
based in Washington D.C. should be delegated the task of designing
work to be done but should be limited in the making of operational
decisions. Lined or operating executives in the field should be
fully responsible for getting the work done and should have clear
authority to direct the facilities equipment and people under
their leadership.
"7. The consolidation of facilities and personnel contemplated
by the administrators twenty-year plan should be adopted as both
technically superior and advantageous to improved working
relationships. Each major change called for should be accompanied
by a people plan detailing the handling of items such as
relocation retraining restructuring and other such human factors.
It is important for the plan to be correct technically it is even
more important that changes impacting people be identified and
planned in such a way that the technical and structural revisions
are handled knowledgeably and with confidence and enthusiasm.
"8. The FAA should immediately implement a program within Air
Traffic Control to eliminate confusion resulting from the exodus
of the Union and the Union contract. (1) A written set of
employee rights and responsibilities should be developed as soon
as possible. (2) Reporting to field management should be human
resource specialists who can help employees resolve questions help
employees and supervisors open up blocked communication help
employees process their complaints through an orderly procedure
help facilities relate to communities in which they are located
and help organize employee and facility activities.
(3) Management-employee committees should be organized to work
together on matters of importance to the
team. (4) Management-employee meetings should be held at least
monthly to keep employees informed and to solicit employee
feedback.
"9. The FAA should adopt a comprehensive program of management
development. Candidates for air traffic employment should be
tested for management interest and aptitude before being hired.
During or after the controller training period at the academy
successful trainees with management potential should be given an
additional management-oriented curriculum. These plus other
controllers expressing an interest in management or evincing
management potential should be provided managerial training
experiences while functioning in first-level jobs. Finally all
potential management talent should be tracked and appraised and a
system should be in effect that utilizes this data to select the
most qualified candidate for every management promotion.
"10. In selecting and evaluating managers the FAA should
insist on managerial performance that emphasizes keeping all
employees well informed offering employees a chance to participate
in appropriate decisions and producing strong teamwork attitudes.
To help evaluate the organizational strength at any and all FAA
locations employee opinion and attitude surveys should be
conducted at major facilities at least biannually with employees
receiving not only feedback on the survey results but also
managements responses to any specific problems or suggestions.
"11. The FAA should develop career plans for nonsupervisory
employees that allow controllers to move to jobs and to extend
career according to the job pressure the employee feels he or she
will be able to handle.
"12. The FAA should establish performance appraisal and reward
systems that are more objective less exposed to favoritism and for
managers based in part on the successful development of teamwork.
"13. The FAA should strive to encourage the administration and
the congress to develop a plan that relieves pay compression for
management positions and provides premium pay equity and training
time pay enhancement for first-level supervisors . . . "
The telegram concluded with the following comment by the
Administrator of the FAA:
"As administrator I welcome the report. It identifies and
documents some significant management problems that we must
resolve. During the next weeks and months we will be working with
all of our employees in evaluating the task forces recommendations
and determining exactly what we will do to have the FAA a better
place to work and a more effective organization. There is much to
be done and we must get on with it."
Counsel for the General Counsel and the Union contend Respondent
violated section 7116(a)(1) and (5) of the Statute when it solicited the
opinions and comments of unit employees on the Jones Report without
first having obtained the Union's consent. It is also alleged that even
if it is permissible under the Statute for Respondent to have employees'
opinions, Respondent nevertheless was obliged to give the Union prior
notice and an opportunity to bargain over the manner and means in which
bargaining unit employees would present their views.
Respondent denies that the circulation of the Jones Report and the
request for employee input constituted a violation of the Statute and
avers that, in any event, Respondent's actions herein would have only a
de minimis impact on employees and therefore did not violate the
Statute.
At present there is a paucity of litigated cases where the Authority
has addressed the issues presented herein. However, a substantial
number of cases have been litigated under the National Labor Relations
Act (the Act) wherein the National Labor Relations Board (the Board) has
treated the matter of employer opinion surveys, polls and questionnaires
encompassing matters concerning terms and conditions of employment.
Thus, the Board has found violations in those cases in which a union was
involved in organizational activities and seeking initial recognition or
a representational election: where the survey occurred in a context of
other unfair labor practice conduct (St. Joseph's Hospital of the
Franciscan Sisters of Milwaukee, Inc., 247 NLRB 869 (1980); Ben
Franklin Division of City Products Corporation, 251 NLRB 1512 (1980);
Tom Wood Pontiac, Inc., 179 NLRB 581, enf'd, 447 F.2d 383 (7th Cir.
1971); Drives, Incorporated, 172 NLRB 969 (1968)); where the
circumstances (such as timing) showed, or created an inference, that the
employer was inviting direct dealing or suggested to employees that
unionization was unnecessary (St. Joseph's Hospital, supra; Tom Wood
Pontiac, supra); where the surrounding circumstances, implied a promise
of benefit to employees (The Miller Press, 197 NLRB 574 (1972); Drives,
Incorporated, supra); and where, pursuant to the survey, employee
complaints were, in fact, soon remedied.
(Ben Franklin Division of City Products Corporation, supra).
In other cases where union recognition was being sought, the Board
found no violation of the Act: where the survey was conceived for
legitimate business reasons and not in response to union organizational
efforts or designed to undermine the union (Leland Stanford Jr.
University and Stanford University, 240 NLRB 1138 (1979)); where the
survey was determined to be innocous under the circumstances (ITT
Telecommunications, a Division of International Telephone and Telegraph
Corporation, 183 NLRB 1129 (1970)-- one question out of 98 addressed to
union sentiment found to be objectionable and no other unfair labor
practices found); and where the survey was conducted in accordance with
the employer's past practice (Montgomery Ward & Co., Incorporated, 150
NLRB 1374 (1965)).
As to employer polling of employees conducted in situations where a
union was already the exclusive collective bargaining representative of
its employees, the Board found a violation of the Act where the purpose
of obtaining employees' opinions was to provide a basis for obtaining
concessions from the union during subsequent negotiations with regard to
the modification of a manning provision in the parties' contract. Obie
Pacific, Incorporated, 196 NLRB 458 (1972). In that case, the Board
stated:
"Respondent's obligation to bargain with the employees'
exclusive agent demands that he accept and respect the exclusivity
of that agency. While, under appropriate circumstances, an
employer may communicate to employees the reasons for his actions
and even for his bargaining objective, he may not seek to
determine for himself the degree of support, or lack thereof,
which exists for the stated position of the employees' bargaining
agent. If we were to sanction such efforts, we would impede
effective bargaining.
"Part of the task facing a negotiator for either a union or a
company is effectively to coalesce an admixture of views of
various segments of his constituency, and to determine, in the
light of that knowledge, which issues can be compromised and to
what degree. A systematic effort by the other party to interfere
with this process by either surreptitious espionage or open
interrogation constitutes clear undercutting of this vital and
necessarily confidential function of the negotiator. It is indeed
designed to undermine the exclusive agency relationship between
the agent and its collective principals."
However, in another case where a survey was distributed to unionized
employees, the Board found no violation of the Act occurred where
legitimate business reasons existed for the survey, /4/ the survey was
not designed to erode the union's position as collective bargaining
representative, and it was clear from the circumstances of the case that
the survey did not have that effect. (Leland Stanford Jr. University,
et al., supra). The Board noted particularly that shortly after the
survey was administered the employer informed unionized employees that
it had no intention to bargain directly with employees and fully
recognized the union's rights as the exclusive bargaining representative
for negotiating wages, hours, and working conditions.
Thus, it is clear under Board law that the purpose of a survey and
all the attendant, relevant circumstances are to be considered in making
a determination regarding employee opinion surveys.
As stated above, case law as decided by the Authority regarding
employee opinion polls and questionnaires is sparse. However, it
appears that the purpose and surrounding circumstances of the action
must be considered and no per se approach is to be taken in this matter.
In Department of Health, Education and Welfare, Social Security
Administration, Bureau of Retirement and Survivors Insurance,
Northeastern Program Service Center, 1 FLRA 508 (1979), a case arising
under Executive Order 11491, as amended, the Authority found that the
employer's use of a questionnaire soliciting employees' opinions and
sentiments regarding the adoption of flextime at the facility violated
the Order. In that case the union objected to the distribution of the
questionnaire without modification and sought to negotiate on "all
aspects of flextime implementation" prior to the distribution of the
questionnaire to employees. In the circumstances of that case the
employer's conduct was found to constitute a bypass of the Union which
undermined and impaired its representational status. The Administrative
Law Judge in his findings and conclusions, adopted by the Authority,
stated, inter alia:
"Thus, the Union's sole right to express opinion and sentiments
on behalf of employees was substantially eroded when the Center
obtained individual employees' views of matters appropriately
belonging to the exclusive representative. In the scheme of
collective bargaining it is the exclusive representative (or its
agent) which speaks on behalf of employees using its evaluation of
employee sentiment and such other matters it chooses to take into
account that the Center is obligated to consider.
When the Union is bypassed in this regard, bargaining, in effect,
takes place directly with employees and not through the exclusive
representative, in derogation of the exclusive representative's
rights."
Subsequently, in a case arising under the Statute the Authority found
polling of employees, in the circumstances of the case, not to have
constituted a bypass of the union. In Kaiserslautern American High
School, Department of Defense Dependents Schools, Germany North Region,
9 FLRA 184 (1982), a third party school accreditation team (NCA)
reported that good teacher morale was not in evidence at the respondent
school. Respondent therein "declared its intent to speak with
individual members of the school staff concerning the . . . report," and
the union raised no objection. Thereafter, the school Principal,
without further discussion with union, conducted a poll of faculty
members through a questionnaire which read:
"Re the NCA report
MY PERSONAL MORALE IN KAHS is:
Normal/Average . . .
Higher than Normal . . .
Lower than Normal . . . "
Faculty members voluntarily completed the questionnaire and the
results, which indicated morale of the majority of employees was normal
or above, were published and furnished to NCA. The Authority, in
dismissing the allegation that the poll and its publication attempted to
bypass the exclusive representative and deal directly with unit
employees on personnel policies, practices, or matters affecting working
conditions, stated:
" . . . 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 Division 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 section 7116(a)(1) and (5)."
The question as to when and under what circumstances an employer may
solicit employees' opinions on matters affecting working conditions is
not a simple one to resolve and obviously requires a balancing of valid
competing interests. In the case herein, the PATCO strike of August
3-8, 1981 involved thousands of air traffic controllers and resulted in
the cancellation of 26,000 flights during those 5 days. /5/
Accordingly, Respondent had a legitimate business reason to commission a
task force to inquire into management and employee relations at FAA and
to seek the opinions of employees regarding the findings of that task
force. Accordingly, it cannot be concluded on the facts of this case
said that Respondent's purpose in obtaining the opinions of its
employees on the task force's findings and recommendations was to
undermine the Union. Further, the manner in which employees' opinions
was solicited in no way threatened employees.
On the other hand, Respondent sought to obtain the opinions of
employees on matters clearly encompassing "conditions of employment"
within the meaning of the Statute /6/ both as to the Jones Task force's
evaluation of management and employee relationships, and recommendations
with regard thereto. Thus, employees were asked to comment on matters
concerning the systems used to train and evaluate employees for
supervisory and management positions; upward communications of
employees; morale; "flexible staffing" programs; adopting a plan
relative to consolidation of facilities and personnel; keeping
employees informed and providing employees with an opportunity to
participate in "appropriate decisions"; the use of employee opinion and
attitude surveys with management responses thereto; the development of
career plans and job movement; and the establishment of performance
appraisal and reward systems.
Moreover, Respondent's telegram, after setting out the Jones Report,
stated that the report "identifies and documents some significant
management problems that we must resolve." Respondent concludes in that
telegram:
"During the next weeks and months we will be working with all
of our employees in evaluating the task force's recommendations
and determining exactly what we will do to have the FAA a better
plan to work and a more effective organization . . . "
In my view Respondent's above comment, taken in conjunction with the
solicitation of employees' opinions, clearly conveys the inference that
employee's opinions, given apart from the collective bargaining process,
might well result in improvements of matters concerning working
conditions. Thus, Respondent's direct solicitation of employees'
comments on the task forces' report had the forseeable effect,
intentionally or otherwise, of eroding the Union's position as the
employees' exclusive collective bargaining representative.
It is reasonable to assume that many of the matters set out in the
Jones Report are matters upon which the Union might be making future
negotiation proposals or counter proposals. Certainly, if Respondent
desired to effectuate changes in some of these employment conditions,
bargaining with the Union would doubtless be required. When unit
employees' opinions on these matters have been solicited and directly
provided by employees themselves, the "degree of support, or lack
thereof, which exists for the stated position of the employees'
bargaining agent" as explained above in Obie Pacific, would be obvious
to Respondent and thereby impede effective representation by the Union.
Respondent sees the case herein as akin to the facts of
Kaiserslautern, supra. However, in that case the employer sought
employees' sentiment on one narrow area, for an obviously limited
purpose, and no promise of benefit by way of improvement of working
conditions was inferred from the polling of employees. In the case
herein, Respondent solicited employees' sentiments on a wide range of
matters concerning working conditions in circumstances that created an
inference that improvements in working conditions might well occur as a
result, in part, from employees' expressed opinion. /7/ Further, the
record contains no evidence of any past practice of polling employees or
that Respondent sought to disavow any intention of bypassing the Union
when directly soliciting employee's opinions. See e.g., Montgomery Ward
& Co., supra and Leland Stanford Jr. University et. al., supra.
Accordingly, in view of the entire foregoing and in all the
circumstances of this case, I conclude the Respondent's conduct of
requesting that unit employees advise Respondent of their opinions
regarding the Jones Report, without first obtaining the Union's consent,
constituted direct dealing with employees and a bypass of the Union in
derogation of the Union's rights as the exclusive collective bargaining
representative, thereby violating section 7116(a)(1) and (5) of the
Statute. /8/
Therefore, I recommend that the Authority issue the following:
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of Transportation, Federal
Aviation Administration, Washington, D.C., shall:
1. Cease and desist from:
(a) Bypassing the Professional Airways Systems Specialists, the
exclusive representative of its employees, and dealing directly
with unit employees by soliciting employees' opinions 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 effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at all its 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 the Administrator of the Federal
Aviation Administration and shall be posted and maintained by him
for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places were notices to
employees are customarily posted.
The Administrator 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, Region VIII, Federal
Labor Relations Authority, 350 South Figueroa Street, 10th Floor,
Los Angeles, California 90071, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
/1/ Counsel for the General Counsel's unopposed motion to correct the
transcript as to minor matters is hereby granted.
/2/ The facts found herein are based upon admissions contained in
Respondent's Answer to the Amended Complaint and documents received in
evidence at the hearing, including a Stipulation of Facts entered into
by all parties.
/3/ For background information relating to the PATCO strike see
Professional Air Traffic Controllers Organization, Affiliated with MEBA,
AFL-CIO, 7 FLRA 34 (1981); aff'd, 685 F.2d 547 (D.C. Cir. 1982).
/4/ The conclusion that legitimate reasons existed for the survey was
based upon findings that its use "as a tool to aid . . . in effective
management" was contemplated by the employer's personnel director before
he entered that position and he used such a survey as a management
consultant at other facilities. It was also found that the improvements
made by the employer as a result of the information received in the
survey, was insubstantial.
/5/ Professional Air Traffic Controllers Organization, supra.
/6/ See definition set out in section 7103(a)(14) of the Statute.
/7/ Respondent's contention that, at most, a de minimis impact
situation occurred herein is unsupported, and therefore, rejected.
/8/ While it is recognized that Administrative Law Judges' unappealed
final decisions and decisions which have not yet been ruled on by the
Authority are not binding precedent, compare: United States Army Air
Defense Center and Fort Bliss, Fort Bliss, Texas, Administrative Law
Judge Decision Report No. 7, March 26, 1982 (6-CA-862); United States
Department of Justice, United States Immigration and Naturalization
Service, 6-CA-440 (OALJ-81-175, September 29, 1981); United States
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
Washington, D.C., and its Central Region, 5-CA-592 (OALJ-82-73, April
20, 1982); and Internal Revenue Service (District, Region, National
Office Units), 3-CA-1889 (OALJ 82-89, June 8, 1982).
Malachy T. Coghlan, Esq., For the Respondent
Woody N. Peterson, Esq. and Joseph E. Kolick, Jr., Esq., on the
brief, For the Charging Party
Deborah S. Wagner, Esq., For the General Counsel
WE WILL NOT bypass the Professional Airways Systems Specialists, the
exclusive representative of our employees, and deal directly with unit
employees by soliciting employees' opinions concerning personnel
policies and 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 Relations Statute.
. . .
(Agency/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, Region VIII, Federal Labor Relations Authority, 350
South Figueroa Street, 10th Floor, Los Angeles, California 90071, and
whose telephone number is (213) 688-3805.
26 FLRA-ALJ; Case No. 5-CA-20126 February 28, 1983
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, CLEVELAND,
OHIO, DISTRICT OFFICE, Respondent, and NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION, CLEVELAND JOINT COUNCIL, Charging
Party
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
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., 92 Stat. 1191 (hereinafter referred to as the Statute), and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R. Chapter XIV, Sec. 2410, et seq. On February 18, 1982 National
Treasury Employees Union and National Treasury Employees Union,
Cleveland Joint Council (hereinafter referred to respectively as NTEU
and NTEU Cleveland Joint Council) filed a charge against Department of
the Treasury, Internal Revenue Service, Cleveland District Office
(hereinafter referred to as Respondent and/or IRS Cleveland District
Office) alleging that Respondent violated Sections 7116(a)(1), (5) and
(8) of the Statute.
On July 16, 1982, based on the above described charge, the General
Counsel of the FLRA, by the Regional Director for Region 5, issued a
Complaint and Notice of Hearing alleging that Respondent violated
Sections 7116(a)(1), (5) and (8) of the Statute because it had failed to
comply with Section 7114(a)(2)(A) of the Statute. Respondent filed an
Answer in which it denied that it had violated the Statute.
A hearing was conducted before the undersigned in Cleveland, Ohio.
Respondent, NTEU and NTEU Cleveland Joint Council, and General Counsel
for the FLRA were represented and afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence and to
argue orally. Post-hearing briefs were filed and have been fully
considered.
Based upon the entire record in this matter, upon my observation of
the witnesses and their demeanor, and upon my evaluation of the
evidence, I make the following:
At all times material NTEU has been the certified exclusive
collective bargaining representative for Respondent's professional and
non-professional employees, including Internal Revenue Agents. At all
times material Respondent and NTEU have been parties to a collective
bargaining agreement that covered, inter alia, employees of IRS
Cleveland District Office. On May 4, 1981 Respondent and NTEU entered
into an agreement entitled "Performance Appraisal System and Employee
Participation" which provides, inter alia:
"that all group meetings where draft Elements/Standards are to
be discussed will be considered as 'formal' and the local Union
will be provided the opportunity to be represented. The procedure
for notification of these meetings will be that contained in the
master agreements."
During June 1981, IRS Cleveland District Office held a meeting with
employees at which they discussed the critical elements for employee
positions and the employees commented on proposed critical elements.
During very early September 1981, Internal Revenue Agents at the IRS
Cleveland District Office received a "buck slip" from Respondent
notifying the Agents of a meeting to be held on September 17, 1981 at
9:00 a.m.
The "buck slip" indicated the meeting was concerning the critical
elements and the Agents were directed to attend. Attached to the "buck
slip" was a copy of the Critical Job Elements for the Internal Revenue
Agent position and two forms, one to be signed acknowledging receipt of
the critical elements and the other to be signed after the September 17
meeting indicating the meeting had been attended.
Marvin Jaffee, an Internal Revenue Agent employed by Respondent,
received the above described "buck slip" and attachments, addressed to
him in his employee capacity. Jaffee has been at all times material
President of NTEU Chapter 37 and Chairman of NTEU Cleveland Joint
Council. Prior to September 17, 1981 Jaffee, in his union capacity
received an additional notification concerning the September 17 meeting
and was afforded an opportunity to attend the meeting in his union
capacity.
On September 17, 1981 a meeting was held for virtually all the
Internal Revenue Agents in branches 1 and 2 of the IRS Cleveland
District Office. About 75 Agents attended the meeting to discuss the
critical elements that were to be implemented in October 1981. Jaffee
attended the meeting. Almost all of the first line supervisors, group
managers, and almost all of the branch chiefs were present. The
Division Chief and the Assistant Division Chief were present at various
times during the meeting.
The meeting was conducted and lead by group managers Victor Lessor
and Fred Philinger. The critical elements of the Internal Revenue Agent
position was discussed. Lessor and Philinger explained the application
of the critical elements to work performance, the affect of an
unsatisfactory rating, and the relationship of the critical elements to
disciplinary action, within grade increases and grievances. The
Internal Revenue Agents present, including Jaffee, asked many questions
about the critical elements and their applications and the questions
were answered by Lessor and Philinger.
Towards the close of the meeting, Jaffee raised his hand and was
recognized by Lessor and Philinger. Jaffee rose, faced the group and
stated that he had something to say as the union representative. Jaffee
had prepared written notes in his hand. Jaffee began by stating that
the critical elements were non-negotiable but, because of meetings
between NTEU and IRS, some elements had been changed. At that point,
after having spoken for 10 to 30 second, Jaffee was interrupted by
Examination Branch Chief, James Clark, who told Jaffee that this was a
management meeting and that the Union could not make a statement.
Jaffee stated that he did believe he had a right to speak about the
critical elements. Clark replied that Jaffee was not permitted to make
a statement. The meeting then broke up. The entire meeting had lasted
about two to three hours.
Jaffee's prepared notes indicated that he intended to comment on the
critical elements that had been deleted from the prior draft, the
ability to automatically withhold a within grade increase if an employee
failed to perform one critical element up to standard, the evaluation
procedure and the required counseling and improvement sessions.
Failure by an employee to perform successfully with respect to a
critical element could result in an adverse action, removal or denial of
a within grade increase.
General Counsel for the FLRA contends that Respondent violated
Sections 7116(a)(1), (5) and (8) of the Statute by failing to comply
with Section 7114(a)(2)(A) of the Statute when it prohibited the
representative of NTEU Cleveland Joint Council from speaking at the
September 17, 1981 meeting.
Section 7114(a)(2)(A) of the Statute provides:
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussions between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practice or other general condition of employment.
The September 17, 1981 meeting clearly met the criteria for a
"formal" meeting /1/ within the meaning of Section 7114(a)(2)(A) of the
Statute as set forth by the FLRA in Department of Health and Human
Services, Social Security Administration, Bureau of Field Operations,
San Francisco, California, 10 FLRA 115 (1982) and Department of Health
and Human Services, Social Security Administration, Bureau of Field
Operations, 10 FLRA 120 (1982).
The subject matter of the meeting, the institution and application of
the new critical job elements, was a very fundamental working condition
and thus concerns "personnel policy or practices or other general
conditions of employment" within the meaning of Section 7114(a)(2)(A) of
the Statute.
Further, because the meeting involved management representatives
explaining the various critical elements and answering employee
questions, the meeting constituted a "discussion" within the meaning of
Section 7114(a)(2)(A) of the Statute.
In accordance with the foregoing and with the provisions of Section
7114(a)(2)(A) of the Statute, NTEU Cleveland Joint Council was entitled
to be "represented" at the September 17 meeting. The basic issue
presented is whether Respondent in effect denied NTEU representation at
the September 17 meeting when Clark refused to permit Jaffee to make a
statement on behalf of NTEU or whether, permitting Jaffee solely to ask
questions, like the other employees, was sufficient to satisfy
Respondent's obligation to permit NTEU to be represented.
It is concluded that when Section 7114(a)(2)(A) of the Statute
provides that a union should be "represented" it means more than merely
to be present, it also means the right to speak, comment and to make
statements. To conclude that a union's right to be represented at
formal discussions of personnel policies would be satisfied if the Union
merely had the right to attend such discussions, but not to speak or
make comments, would be to make the right a meaningless and useless one
and thus clearly is not what Congress intended when it provided the
right. This has been recognized in construing Section 10(e) of the
Executive Order 1191, which is substantially identical to Section
7114(a)(2)(A) of the Statute. Cf. United States Government Printing
Office, Public Documents Center, Pueblo, Colorado, OALJ-81-111, Case No.
7-CA-659 (1981); General Services Administration, Region 8, Denver,
Colorado, OALJ-83-16, Case No. 7-CA-942 (1982); and Department of
Health, Education and Welfare, Office of the Secretary, Office for Civil
Rights, A/SLMR 1145 (1978).
The FLRA found that a union's right to be represented at an
examination of an employee under Section 7114(a)(2)(B) of the Statute
afforded the union the right to take an active part in the defense of
the employee. Cf. Federal Aviation Administration, St. Louis Tower,
Bridgeton, Missouri, 6 FLRA No. 116 (1981) and Norfolk Naval Shipyard, 9
FLRA 463 (1982). It should be noted that a union's right "to be
represented" is found in Section 7114(a)(2) of the Statute which applies
equally to both Section 7114(a)(2)(A) and Section 7114(a)(2)(B).
Accordingly the interpretation of that phrase with respect to Section
7114(a)(2)(B) of the Statute should be equally applicable to Section
7114(a)(2)(A) of the Statute.
The FLRA dealt with the application "to be represented" in Section
7114(a)(2)(A) of the Statute in Internal Revenue Service, Fresno Service
Center, Fresno, California, 7 FLRA 371 (1981). This case involved a
union representative's participation is a meeting to resolve an EEO
complaint.
The FLRA concluded this was a formal meeting to resolve a grievance and
thus Section 7114(a)(2)(A) of the Statute was applicable. At the
meeting the union representative attempted to answer management
questions directed to the complainant. When the agency representative
advised the union representative that the agency wanted the complaining
employee's answers, the union representative responded that she would
say what she wanted. The meeting then continued and the union
representative did participate in discussions. The FLRA adopted the
Administrative Law Judge's discussion concerning whether the agency's
treatment of the union representative violated Section 7116(a)(1) of the
Statute. Administrative Law Judge Sternburg concluded that the union's
right to participate does not extend to "usurpation of the procedure."
Judge Sternburg stated further that although the union "may ask
questions and propose resolutions and remedies, it may not, however,
dictate answers or take charge of the proceedings. Similarly, a union
is not expected to remain silent and not be a proponent of a particular
position. However, in formal discussions, its actions should be
governed by logic and respect for orderly procedures. . . . " Internal
Revenue Service, Fresno Service Center, Fresno, California, supra at
387.
Respondent contends that, with respect to the September 17 meeting,
Section 7114(a)(2)(A) of the Statute granted NTEU representative the
right only to ask questions, like the other employees, but not the right
to make any statement. This is too narrow an interpretation of the
NTEU's right to be represented and is not consistent with the FLRA's
interpretation of that right as set forth in the Fresno Service Center
case, supra. The union's participation in a formal discussion as
discussed above by Judge Sternburg, is "governed by logic and respect
for orderly procedures. . . . " In the instant case Jaffee asked
questions as an employee, along with the other employees, and then when
the meeting was concluding arose to make a statement on behalf of NTEU.
The method he chose to express the NTEU position, a brief statement at
the close of the meeting was most certainly logical and showed great
respect for orderly procedures. Jaffee, in no way interfered with
Respondent's attempts to explain the critical elements and to solicit
and answer employee questions. He waited patiently and attempted to
make a statement. He was interrupted after 10-30 second, when he had
barely introduced himself. Clearly NTEU would not have any right to
disrupt the meeting, to dominate it, or to interfere with Respondent's
attempt to explain the critical elements. However, NTEU did have a
right to make a reasonable statement setting forth its position with
respect to the critical elements. Jaffee was merely attempting to
explain to the employees NTEU's roll and position with respect to the
critical elements. Clark denied NTEU this opportunity to do so when he
interrupted Jaffee after some 10 to 30 seconds. It can hardly be
considered that Jaffee would be dominating or disrupting a 3 hour
meeting by making a short statement.
Further it can not be concluded that Jaffee interfered with Respondent's
conducting the meeting; Jaffee waited to the end of the meeting before
attempting to make his statement. Respondent might have been privileged
in stopping Jaffee after Jaffee had spoken for too long a period, had
dealt with matters that were improper or had started to disrupt the
meeting. However, Clark acted prematurely. Jaffee, after 10-30 second,
could hardly have spoken too long in a meeting that took 3 hours, and
Jaffee had done nothing to disrupt the meeting and had not yet even had
an opportunity to raise improper matters. Rather Jaffee's prepared
notes indicate his comments were to be brief and were to deal with
NTEU's roll and position with respect to the critical elements.
In light of the foregoing, I conclude that Clark's refusal to let
Jaffee make a statement interfered with NTEU's rights under Section
7114(a)(2)(A) of the Statute "to be represented at a formal discussion."
Accordingly, I conclude that Respondent violated Sections 7116(a)(1),
(5) and (8) of the Statute, and recommend that the Authority issue the
following:
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 Department of the Treasury, Internal
Revenue Service, Cleveland, Ohio District Office shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions with bargaining
unit employees without permitting the exclusive bargaining
representative, the National Treasury Employees Union, to be
represented at such formal discussions.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of 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) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by an
authorized official and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices customarily are
posted.
Reasonable steps shall be taken to insure that said 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 of Region 5, 175 West
Jackson Boulevard, Suite A-1359, Chicago, Illinois 60604, in
writing, within 30 days from the date of this Order as to what
steps have been taken to comply with this Order.
/1/ NTEU and Respondent provided in their "Memorandum of Agreement"
that all group meetings where elements/standards were to be discussed
are to be considered as "formal".
James E. Rogers, Jr., Esq., For the Respondent
Janice M. Rodgers, Esq., For the Charging Party
Sharon Bauer, Esq., For the General Counsel, FLRA
WE WILL NOT hold or conduct formal discussions with bargaining unit
employees without permitting the exclusive bargaining representative,
National Treasury Employees Union, to be represented at such formal
discussions.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . .
(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 5, whose
address is: 175 West Jackson Boulevard, Suite A-1359, Chicago, Illinois
60604, and whose telephone number is: (312) 886-3468.
26 FLRA-ALJ; Case No. 4-CA-1159 March 4, 1983
DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, CHARLESTON NAVAL
SHIPYARD, Respondent, and FEDERAL EMPLOYEES METAL TRADES COUNCIL OF
CHARLESTON, AFL-CIO, Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
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.Section 7101, et seq., and the Rules and Regulations issued
thereunder, Fed. Reg. Vol. 45, No. 12, January 17, 1980 and Vol. 46, No.
154, August 11, 1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.
Pursuant to an amended charge first filed on August 19, 1981, by the
Federal Employees Metal Trades Council of Charleston, AFL-CIO,
(hereinafter called the FEMTC or Union), a Complaint and Notice of
Hearing was issued on August 31, 1982, by the Regional Director for
Region IV, Federal Labor Relations Authority, Atlanta, Georgia.
The complaint alleges that the Department of Defense, Department of the
Navy, Charleston Naval Shipyard, (hereinafter called the Navy or
Respondent), violated Sections 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute, (hereinafter called the
Statute), by virtue of its actions in refusing the Union's request for a
copy of notes taken at an "investigative discussion."
A hearing was held in the captioned matter on January 10, 1983, in
Charleston, South Carolina. 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 February 22, 1983, which
have been duly considered.
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.
The Union is the exclusive representative of a number of Respondent's
employees working at the Charleston Naval Shipyard in Charleston, South
Carolina. The Union and the Respondent have been parties to collective
bargaining agreements covering the employees represented by the Union
since March of 1977. Article XVI of the collective bargaining agreement
in effect as of May 7, 1981, when the incident underlying the instant
unfair labor practice took place, provides in pertinent part as follows:
Section 1. Prior to initiating a formal disciplinary action
such as a letter of reprimand or suspension of 30 calendar days or
less against an employee a preliminary investigation will be made
by the immediate supervisor or other management official to
document the facts and determine whether a prima facie case
exists. This preliminary discussion will normally include a
private discussion with the employee if he is in duty status. If
the findings of the preliminary investigation indicate that formal
disciplinary action may be warranted, an informal investigative
discussion will be held with the employee . . . prior to issuance
of a disciplinary action or proposed disciplinary action.
On May 7, 1981, an investigative discussion was held by Mr. Albert
Ackerman, Superintendent of the Woodworking Shop. The discussion
concerned a Report of Disciplinary Offense filed by Mr. Julius Snype,
Foreman Woodcrafters, against Mr. Samuel Gibbs, a unit employee. Mr.
Snype was Mr. Gibbs' immediate supervisor.
In attendance at the May 7, 1981, investigative discussion were Mr.
Ackerman, Mr. Snype, Mr. Gibbs, Mr. F. E. Harbert, Chief Union Steward,
and Ms. Francis Bailey, Administrative Officer of the Service Group.
The investigative discussion and/or meeting began with Mr. Ackerman
reading the Report of Disciplinary Offense written by Mr. Snype.
Following the reading of the Report of Disciplinary Offense, Mr. Gibbs
was allowed to give his version of the incident underlying the Report of
Disciplinary Offense prepared by Mr. Snype. According to Mr. Harbert,
Mr. Gibbs' representative at the meeting, Mr. Gibbs had already written
down his version of the incident on a piece of paper and he merely "read
this statement to Mr. Ackerman at the discussion."
While Mr. Gibbs was reading his version of the incident, Ms. Bailey
made non-verbatim shorthand notes. After Mr. Gibbs finished giving his
version of the incident, Mr. Harbert requested a copy of the notes made
by Ms. Bailey and also a copy of the Report of Disciplinary Offense.
Mr. Ackerman and Ms. Bailey refused his request and the meeting, which
had been going on for some twenty-five to thirty minutes ended. /1/
Following the meeting Mr. Ackerman and Mr. Snype instructed Ms.
Bailey to write a Letter of Caution for Disrespectful Conduct on 23
April 1981. Ms. Bailey went back to her office and wrote Mr. Gibbs the
Letter of Caution which contained four paragraphs. Paragraph one was a
summary of the Report of Disciplinary Offense written by Mr. Snype.
Paragraph two was a summary of Mr. Gibbs' defense which was prepared
from her non-verbatim shorthand notes. Paragraph three was a finding
that "the charge of disrespectful conduct on April 23, 1981" was in
order. Paragraph four advised Mr. Gibbs that he could grieve the matter
through the contractual grievance procedure.
Following the receipt of the Letter of Caution dated May 8, 1981, Mr.
Harbert filed a grievance on behalf of Mr. Gibbs on May 20, 1981. The
grievance claimed that the Letter of Caution was unjustified, and that
it should be removed from Mr. Gibbs' personnel file. The grievance also
stated as follows "Request all notes and summary's and any documents
used at investigative discussion be made available to me."
A first step grievance meeting was held on May 27, 1981. At the
beginning of the meeting or hearing, Mr. Harbert asked if the documents
he had requested were available. Mr. J. T. Fralix, Shipyard Production
Superintendent, informed Mr. Harbert that the documents were not
available and that he, Mr. Harbert, was not entitled to the documents.
Mr. Fralix further stated that if Mr. Gibbs requested a copy of the
Report of Disciplinary Offense, then it would be provided to Mr. Gibbs.
Nothing of note occurred at the meeting since none of the requested
documents were made available. After the meeting, Respondent issued an
answer to the grievance. The grievance was never advanced to the second
step of the grievance procedure.
According to Ms. Bailey, the only reason that she takes notes at
investigative discussions is to aid her in preparing that portion of any
forthcoming letter of caution or reprimand wherein the charged
employee's version is set forth. If it is decided that there will be no
letter of caution or reprimand then she does not summarize her notes
which are a combination of the Gregg system of shorthand and her own
additions or substitutions thereto. Further, according to Ms. Bailey,
she retains her shorthand notes until the notebook is filled up and then
discards same. Although she had the notebook with her notes of the
investigative discussion of May 7, 1981, at the time of Mr. Harbert's
request for same, Ms. Bailey testified that the notes were no longer in
existence since the notebook had been filled up and, in accordance with
her past practice, since been discarded.
The General Counsel takes the position that Ms. Bailey's notes fall
within the description of information which Respondent is obligated to
furnish the Union under Section 7114(b)(4) of the Statute and that
Respondent's refusal to make Ms. Bailey's notes available was therefore
violative of Sections 7116(a)(1), (5) and (8) of the Statute.
Respondent, on the other hand, urges dismissal of the complaint on
the grounds (1) that Ms. Bailey's notes do not fall within the
description of data required to be furnished by Section 7114(b)(4) of
the Statute and (2) that, in any event, Section 7116(d) bars any further
proceedings since the matter of the notes had previously been made the
subject of a grievance under the negotiated grievance procedure.
Contrary to the contention of the Respondent, I find that Section
7116(d) of the Statute is not a bar to the instant proceedings. While
it is true that Mr. Harbert did request Ms. Bailey's notes in the
grievance filed on behalf of Mr. Gibbs on May 20, 1981, the refusal to
supply the notes, however, was not used as a basis for the grievance.
Accordingly, inasmuch as the matter of Respondent's refusal to make Ms.
Bailey's notes available to the Union had not been made subject of a
prior grievance, the Union has not made an election of forums and
processing of the instant complaint is therefore not barred by Section
7116(d) of the Statute.
The remaining issue left for determination is whether the data
requested by the Union, i.e., Ms. Bailey's notes, falls within the
obligation imposed upon an agency by Section 7114(b)(4) of the Statute
to supply information. In this connection, I find that Ms. Bailey's
notes do not constitute guidance, advice counsel or training provided
for management officials or supervisors, relating to collective
bargaining. I further find that such notes are normally maintained by
the Respondent in the regular course of business, at least, until a
final resolution is made in connection with a pending or recommended
disciplinary action.
However, with regard to the third requisite set forth in Section
7114(b)(4)(B), i.e. that the requested information be reasonably
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of bargaining, I find that
Ms. Bailey's non-verbatim notes do not fall within such description.
As I understand the state of the law, the obligation imposed upon
management to make information available to a union is predicated upon
the responsibility imposed upon a union as exclusive representative to
represent the employees in the unit. In the absence of information
which is solely in the possession of management and necessary for
intelligent bargaining a union would be frustrated in the performance of
its obligations and responsibilities imposed by the Statute. Department
of the Navy, Portsmouth Naval Shipyard, and Portsmouth Metal Trades
Council, AFL-CIO, 4 FLRA 82; Veterans Administration, Iron Mountain,
Michigan and American Federation of Government Employees, Local 2280,
AFL-CIO, 10 FLRA 79. Where however, the Union has ready access to the
information necessary to perform its duties without undue cost or
exertion of unreasonable efforts, Section 7114(b)(4) would appear to be
inapplicable. Cf. NLRB v. Milgo Industrial, Inc., 97 LRRM 2080, 2081.
In the instant case the information sought consists of Ms. Bailey's
skeleton summary of the pertinent parts of Mr. Gibbs' testimony at the
investigative discussion. While such notes were in the sole possession
of the Respondent, the substance of the testimony was known to both Mr.
Gibbs and Mr. Harbert. Additionally, the record indicates that Mr.
Gibbs' testimony was nothing more than a recitation of written notes.
Accordingly, being aware of Mr. Gibbs' testimony at the investigative
discussion, from which Ms. Bailey's notes were taken, I question how or
why such notes are necessary for intelligent bargaining. To the extent
that the Union might have wanted to challenge the validity of the
summary of Mr. Gibbs' testimony appearing in the Letter of Caution, it
certainly had within its possession the tools or information to do so,
since it had the recollections of both Mr. Harbert and Mr. Gibbs.
In summary, I find that inasmuch as the Union already had within its
possession the information underlying the non-verbatim notes of Ms.
Bailey, Respondent was under no obligation to supply same and therefore
its refusal was neither contrary to Section 7114(b)(4) nor violative of
Sections 7116(a)(1), (5) and (8) of the Statute.
In view of the above conclusions and findings, I recommend that the
Authority adopt the following order dismissing the complaint in its
entirety.
IT IS HEREBY ORDERED that the Complaint in Case No. 4-CA-1159, should
be, and hereby is, dismissed in its entirety.
/1/ The instant complaint concerns only the refusal of Respondent to
make Ms. Bailey's notes available. The refusal to make available the
Report of Disciplinary Offense is not alleged as an unfair labor
practice.
Ms. Delores T. Griffin, Mr. George H. Lewis, For the Respondent
Barbara S. Liggett, Esquire, For the General Counsel
26 FLRA-ALJ; Case No. 3-CA-20698 February 22, 1983
U.S. LIBRARY OF CONGRESS, Respondent, and CONGRESSIONAL RESEARCH
EMPLOYEES ASSOCIATION, Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq. /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., was initiated by a charge filed on July 29, 1982
(G.C. Exh. 1(a)) which alleged a violation of Sections 16(a)(1) and (8)
of the Statute by the denial, on March 17, 1982, of, " . . . the
Congressional Research Employees Association . . . (hereinafter, also,
referred to as the "Union") the opportunity to be represented at an
examination of a unit employee in connection with an investigation."
(G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued on October
15, 1982. (G.C. Exh. 1(c)). The Complaint, after alleging in
paragraphs 6 and 7 that a meeting was held on March 17, 1982, to
determine whether to take disciplinary action against a unit employee
and that the employee was advised to have, and did have, a union
representative present, in paragraph 8 alleges that, "During the
meeting, Respondent's representative . . . interfered with and
restrained the Union representative in his attempt to fully and fairly
represent the employee." (G.C. Exh. 1(c)). The Notice of Hearing set
the hearing for December 9, 1982; however, by Motion filed on November
19, 1982, Respondent requested that the hearing be rescheduled, because
of various conflicts, and by Order dated November 22, 1982, the hearing
was rescheduled for December 21, 1982, pursuant to which a hearing was
duly held on December 21, 1982, before the undersigned in Washington,
D.C.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and presented oral
argument. At the close of the hearing, January 21, 1983, was fixed as
the date for mailing post-hearing briefs which time was subsequently
extended upon the timely motion of counsel for Respondent and for good
cause shown, to February 4, 1983. Respondent and Charging Party have
timely filed briefs, received on February 4, 1983, which have been
carefully considered. Upon the basis of the entire record, I make the
following findings and conclusions:
The employee involved was Mr. William Horace Cromartie, a library
technician. Mr. Cromartie is stationed in the Madison Building and his
regular supervisor is a Mr. Mark German; however, in March, 1982,
pursuant to normal rotation, Mr. Cromartie was assigned to the Jefferson
Congressional Reading Room, which is in another building. The Jefferson
Congressional Reading Room opens at 9:30 a.m. and there is no dispute
that Mr. Cromartie well knew that he should have been present at 9:30
a.m. to March 16, 1982, but he was not and did not appear until about
10:00 a.m. At about 9:30 a.m. on March 16, a supervisor called the
Jefferson Room and, when the telephone was not answered, went to the
Jefferson Room at about 9:35 a.m. and found it locked but the lights
were on and, of course, Mr. Cromartie was not present. When Mr.
Cromartie arrived, at about 10:00 a.m., purportedly, he initially
explained his absence by stating that he had been in a meeting with his
supervisor, Mr. German, in the Madison Building. When contacted, Mr.
German stated that he had no meeting with Mr. Cromartie; that he had
seen Mr. Cromartie in the Madison Building that morning and had spoken
to him but he had not had a meeting with him. Accordingly, because of
these conflicting responses, Respondent scheduled an interview with Mr.
Cromartie for March 17. There is no dispute that Mr. Cromartie was
advised that there was a possibility that the interview might lead to
disciplinary action; that he had the right to have a union
representative present with him; or that he, in fact, had a union
representative, Mr. Raymond Natter, present with him at the interview on
March 17, 1982.
No disciplinary action was taken against Mr. Cromartie and the sole
issue is whether Mr. Natter, Mr. Cromartie's union representative, was
improperly "interfered with and restrained" in his representation of Mr.
Cromartie at the investigative interview.
The interview of Mr. Cromartie was held at 1:30 p.m. on March 17,
1982, pursuant to notice given to Mr. Cromartie the preceding day.
Present for Respondent were: Ms. Margaret Whitlock, Assistant Chief of
the Congressional Reference Division; Ms. Donna W. Scheeder, Senior
Team Leader for Congressional Reference Services; and Ms. Lynne K.
McCay, Senior Team Leader for Congressional Research Service. Mr.
Cromartie was present and was accompanied by Mr. Raymond Natter, his
union representative. Mr. Natter, an attorney, is employed by
Respondent as a legislative attorney, Congressional Research Service.
There is no disagreement that the meeting lasted about 25 minutes. (Tr.
14, 52, 89, 111). All witnesses, except Mr. Natter (Tr. 60), agreed
that Ms. Whitlock opened the meeting by stating that the purpose of the
interview was to give Mr. Cromartie "an opportunity to explain his
absence from the room the day before" (Tr. 19), or, as Mr. Cromartie
stated, " . . . to see what happened that morning" (Tr. 102); that she
explained that he had the right to union representation; that
Respondent had only one question for him; and that Ms. Scheeder would
ask the question. (Tr. 19, 84, 102, 124). Ms. Whitlock, Ms. Scheeder
and Ms. McCay each testified that the question Ms. Scheeder asked was:
"Where were you between 9:30 and 10:00 the previous day, March the
16th?" (Tr. 25, Whitlock); "Bill, where were you?" (Tr. 84, Scheeder);
"Bill, where were you yesterday morning between 9:30 and 10:00? You
were supposed to be on you duty station in the Jefferson Reading Room".
(Tr. 124 McCay). Messrs. Natter and Cromartie each testified that Ms.
Scheeder stated that Ms. Cromartie had said he had been in a meeting
with his regular supervisor, Mark German, on the morning of the 16th;
that Mr. German denied having any such meeting and that she said " . . .
they wanted to hear Bill Cromartie's explanation for this discrepancy"
(Tr. 46, Mr. Natter); "Donna asked me had I told her the day before
that the reason why I was out of the office was because I had had a
meeting in the Madison Building with my supervisor, Mark German.
Because she had spoken to Mark, and he said that we did not have any
kind of meeting scheduled." (Tr. 103, Mr. Cromartie).
This case does not concern Mr. Cromartie's absence per se, but,
rather, the investigative interview itself. The record plainly shows,
whether Mr. Cromartie anticipated the "meeting" issue or whether he was
asked directly about it, that Mr. Cromartie fully stated his position
concerning his absence.
Thus, Mr. Cromartie testified, in part, as follows:
" . . . I told her that I had gone over to the Madison Building
to check on my mailbox. That I had talked to Mark, that I had
talked to some of the members on the production team. That I had
stopped at the snackbar to get a cup of coffee, had stopped at the
restroom, and had come back to the office." (Tr. 103).
" . . . I . . . admitted that I was 25 minutes late reporting
to work that day." (Tr. 105).
Mr. Natter testified, in part, as follows:
"Well, Bill explained that he never claimed having a conference
with Mark German. He only stated that he spoke-- having a
conversation, I believe his words were-- he said that he had a
conversation, not a conference with Mark German.
"Management then asked Bill to explain what did happen. And
Bill went over some of the details of his tardiness, generally
explaining that he arrived at 9:00, which was a half an hour
early, went to the bathroom, went to her permanent duty station,
which was in a different building to check his mailbox, bought a
cup of coffee, and arrived a half an hour late." (Tr. 46).
Nor is there any doubt, notwithstanding Mr. Cromartie's testimony to
the contrary (Tr. 103, 114), that Mr. Natter was permitted to ask
questions as Mr. Natter himself further testified, in part, that:
"I then asked Bill Cromartie to please tell exactly what time--
I wanted to ask Bill Cromartie some questions, to flesh out his
story, bringing out some of the mitigating circumstances.
"So I said to him, 'Bill, what is the exact time that you came
to the Library that day?' He responded, '9:00.' I said, 'What is
the first thing that you did?' He said, 'I went to the Jefferson
Reading Room, my duty station.' I said, 'What did you find there?'
He said, 'I found the door was locked. I opened it, but the
lights were on. /2/
So I assumed that somebody else was in the room, a supervisor. . .
. " (Tr. 47).
On cross-examination, Mr. Natter testified, in part, as follows:
"Q. And I believe . . . you then asked her (Ms. Scheeder) if
you could ask some questions?
"A. That is right.
"Q. And she said yes?
"A. That is right.
"Q. All right. What did you ask then?
"A. I asked Bill Cromartie to state exactly what time he
arrived at the Jefferson Building. He said 9:00.
"Q. He had already given that answer previously, had he not?
"A. Yes, but I wanted to build a precise chronology of events
beginning from the time he entered the building.
"Q. All right, go on.
"A. I asked him what he found when he got to the Jefferson
Building. He said that the door was locked, and he opened it.
But the lights were on inside the office. So he assumed that
somebody else was there. I believe that he said that he did not
see anybody at the time, but he assumed that somebody turned the
lights on. Then he left for the Madison Building." (Tr. 64-65).
There is no dispute that Mr. Natter was not allowed to pursue one
inquiry. Mr. Natter first testified that when Mr. Cromartie mentioned
the word supervisor /3/ (Tr. 47, see above), that "At that point,
Margaret Whitlock interrupted, and said that I was not allowed to ask
any more questions.
She said that my role was simply as an observer, and to take notes, and
that i could not participate any further. . . . did she characterize
your questions in any way? . . . No, she did not. Oh, she did make the
statement that the meeting was becoming too legalistic." (Tr. 47-48).
However, thereafter, Mr. Natter testified, in part, as follows:
"A. . . . I asked Margaret Whitlock . . . who was supposed to
be present at the Jefferson Reading Room . . . if he was there or
not.
"Q. And what, if anything, did she respond to that question?
"A. Her response was, 'That is not relevant. This meeting is
to investigate Bill Cromartie's conduct, and no one else's.' And
she also indicated that I was not to ask questions.
"Q. After that what, if anything else, was said at the
meeting?
"A. I believe that the meeting was adjourned at that point.
"Q. Do you recall Ms. Whitlock giving anybody else the
opportunity to ask questions?
"A. I do not recall." (Tr. 49).
Mr. Cromartie's testimony concerning Mr. Natter's participation, at
best, is equivocal. Mr. Cromartie's testimony was that Mr. Natter asked
a single question, "He asked me that question about was there supposed
to be anyone else in the room with me. And I told him yes. And after
Ray asked the question, then Margaret took over . . . she said that it
was irrelevant, and did not have any bearings on what was doing (sic)
on. And after she made that statement about it being too legalistic . .
. And she kept insisting that he did not have the right to ask any
questions, that he was strictly there as an observer. . . . " (Tr.
104-105; see, also, 103); but on cross-examination he testified, " . .
. Margaret made a statement to the effect that you can ask any questions
you want, but you will not necessarily get any answers." (Tr. 113).
Ms. Whitlock, stated that she told Mr. Natter that his question, " .
. . who else was responsible for being in the room?", was not relevant;
that Mr. Natter then said, "Do you mean that I cannot ask questions?",
to which she replied, "No, that is not what I mean. You can ask
questions, but they have to be relevant to the purpose of this meeting,
which is why was Bill late".
(Tr. 23-24; see, also, Tr. 31, 36); that Mr. Natter stated, "I think
that this is important to get this on the record. Are you saying that
you do not want the whole story?", to which Ms. Scheeder responded,
"Yes, we do want to get the whole story. The purpose of having this
interview is to find out from Mr. Cromartie where he was"; that "Mr.
Natter did not ask another question"; that she had asked Mr. Cromartie
"whether he had anything that he wanted to add, and he said no. And Ms.
Scheeder and Ms. McCay also had nothing to add. And the meeting ended."
(Tr. 31). Ms. Whitlock testified that neither she nor any other
management official at any time restricted or prohibited Mr. Natter
asking questions of Mr. Cromartie (Tr. 32), or from making any statement
on Mr. Cromartie's behalf (Tr. 34), and she specifically and directly
denied that she said to Mr. Natter that his questions were becoming too
legalistic and that he would not be permitted to ask any more questions
(Tr. 22), or that he could observe but not participate. (Tr. 22-23). I
found Ms. Whitlock to be a very credible witness and her testimony in
this regard is fully corroborated by the testimony of Ms. Scheeder (Tr.
86-87; 88; 89) and of Ms. McCay (Tr. 128-129; 129; 131) each of whom
I also found to be very credible witnesses. Accordingly, I credit their
testimony. I specifically do not credit Mr. Natter's testimony that Ms.
Whitlock made any statement that he could not ask questions, or that he,
as Mr. Cromartie's union representative at the investigative interview,
could observe but not participate. Not only did I find Mr. Natter's
testimony in this regard unconvincing, but his own testimony contradicts
such assertion as he admitted that he took an active role in questioning
Mr. Cromartie. I found Mr. Cromartie's testimony concerning Mr.
Natter's participation at the interview wholly unconvincing and in
certain material respects his testimony was inconsistent with Mr.
Natter's testimony.
The purpose of any investigative interview is gather facts.
Interviews may, of course, occur after action has been taken, cf.,
Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132,
9 FLRA 930 (1982); United States Department of the Treasury, United
States Customs Service, Region V, 9 FLRA No. 134, 9 FLRA 951 (1982);
but, typically, as in this case, an investigative interview occurs
before any action is taken. Sec. 14(a)(2) of the Statute provides, in
relevant part, that,
"(2) An exclusive representative . . . shall be given the
opportunity to be represented at--
(B) any examination of an employee is the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation." (5 U.S.C.
7114(a)(2)(B)).
There is no dispute in this case as to the applicability of Sec.
14(a)(2); Respondent informed Mr. Cromartie that disciplinary action
might result; and Mr. Natter was present at the interview to represent
Mr. Cromartie. Notwithstanding that the Statute provides for
representation at such examination, an investigative interview
(examination) is not an adversary proceeding as the Authority made clear
in Norfolk Naval Shipyard, 9 FLRA No. 55, 9 FLRA 458 (1982), where it
stated, in part, as follows:
" . . . the Authority recognizes management's need, under
certain circumstances, to place reasonable limitations on the
exclusive representative's participation pursuant to section
7114(a)(2)(B) of the Statute during an examination of an employee,
in order to prevent an adversary confrontation with that
representative and to achieve the objective of the examination. .
. . " (9 FLRA at 458-459).
Here, the purpose of the meeting, as Mr. Cromartie testified, was, "
. . . to investigate my absence from the reading room from 9:30 to
approximately 10:00. . . . " (Tr. 100) and, wholly consistent therewith,
Respondent's question to Mr. Cromartie at the meeting, in essence, was
"Where were you on March 16, 1982, between 9:30 and 10:00 a.m.?" cf.
United States Department of the Treasury, Internal Revenue Service,
A/SLMR No. 833, 7 A/SLMR 371 (1977). Mr. Natter was permitted to ask
questions of Mr. Cromartie to fully develop the facts pertaining to Mr.
Cromartie. When Mr. Natter sought the identity of another person who
was scheduled for duty in the Jefferson Reading Room on March 16, Ms.
Whitlock told Mr. Natter his question was not relevant, that, "This
meeting is to investigate Bill Cromartie's conduct, and no one else's".
(Tr. 49). Mr. Natter asked no more questions; Mr. Cromartie had
nothing further that he wanted to add (Tr. 37, 106); Ms. Scheeder and
Ms. McCay had no further questions (Tr. 106), and the meeting ended. I
have found that Ms. Whitlock did not at any time prohibit or restrict
Mr. Natter asking questions of Mr. Cromartie, or that she did not tell
Mr. Natter, after stating that his questions concerning the identity of
another employee scheduled for duty in the Jefferson Reading Room was
not relevant, that he could ask no more questions. Certainly,
Respondent had the right, as the Authority stated in Norfolk Naval
Shipyard, supra, to impose reasonable limitations on the exclusive
representative's participation both to prevent an adversary
confrontation with that representative and to achieve the objective of
the examination, namely, to investigate Mr. Cromartie's absence from his
duty station from 9:30 to approximately 10:00 a.m. on March 16, 1982.
Ms. Whitlock's statement to Mr. Natter that a question, which went far
afield from the objective of the examination, was not relevant most
assuredly did not violate any requirement of Sec. 14(a)(2)(B) nor
constitute an unfair labor practice in violation of Secs. 16(a)(1) or
(8) of the Statute.
Accordingly, I recommend that the Authority issue the following:
The Complaint in Case No. 3-CA-20698 be, and the same is hereby,
dismissed.
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(1) will be referred to simply
as "16(a)(1)".
/2/ Ms. Scheeder testified, inter alia, that Mr. Natter asked Mr.
Cromartie, "Had you turned on the lights in the room?", and that "Bill
said that he had, but that he had locked the door when he left." (Tr.
85).
/3/ The other employee scheduled to work in the Jefferson Building on
March 16 was a senior reference specialist, not a supervisor, but she
was on sick leave. (Tr. 121, 126).
Martin F. O'Donoghue, Jr., Esquire,
Douglas A. Warshof, Esquire, For the Respondent
Bruce Rosenstein, Esquire, Donna DiTullio, Esquire, For the General
Counsel
Mr. Jeffery P. Brown, By Brief, For the Charging Party
25 FLRA-ALJ; Case No. 9-CA-1169 March 21, 1983
INTERNAL REVENUE SERVICE, SAN FRANCISCO DISTRICT AND INTERNAL REVENUE
SERVICE, WASHINGTON, D.C., Respondents /1/ and NATIONAL TREASURY
EMPLOYEES UNION, Charging Party
Before: FRANCIS E. DOWD, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat., 1191, 5
U.S.C. 7101, et seq. It was instituted by the Acting Regional Director
of the Ninth Region of the Federal Labor Relations Authority by the
issuance of a Complaint and Notice of Hearing dated October 28, 1981.
The Complaint was issued following an investigation of an unfair labor
practice charge filed on August 14, 1981, and an amended charge filed on
October 6, 1981, by National Treasury Employees Union, herein referred
to as the Union, Charging Party, or NTEU.
The Complaint alleges that the Internal Revenue Service San Francisco
District and Washington, D.C., herein called Respondent, by and through
its agent, John Moore, Chief Labor Relations, San Francisco District,
failed and refused to furnish the Union with information relevant and
necessary to its processing of a grievance under the negotiated
grievance procedure. The grievance concerned the nonselection of the
grievant for promotion.
The General Counsel contends that Respondent, by its refusal, has
failed to comply with Section 7114(b)(4) and thereby violated Section
7116(a)(1), (5) and (8) of the Statute. Respondent's defense is that
neither the Union (at the time of its request) nor the General Counsel
(at the hearing) has proven that the requested information is relevant
and necessary, but even assuming arguendo that the Union had a right to
such information, such right was waived in the collective bargaining
agreement.
A hearing was held in San Francisco, California, at which time the
parties were represented by counsel and afforded full opportunity to
adduce evidence and call, examine and cross-examine witnesses and argue
orally. /2/ Briefs filed by the General Counsel, Charging Party and
Respondent have been duly considered.
Upon consideration of the entire record in this case, /3/ including
my evaluation of the testimony and evidence presented at the hearing,
and from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
1. The Union has been, and is, a labor organization within the
meaning of Section 7103(a)(4) of the Statute.
2. The Complaint alleges and the Answer admits that each named
Respondent is an agency within the meaning of Section 7103(a)(3) of the
Statute.
3. The Union has been certified as the exclusive representative of
the following national consolidated unit of Internal Revenue Service
employees, said unit including employees of the District:
All professional and nonprofessional employees of the Internal
Revenue Service, district, region and National Office, excluding
professional employees of the North Atlantic Regional Office,
management officials, supervisors, confidential employees, all
employees of the Criminal Investigation Division, all employees of
the Assistant Commissioner (Inspection), all employees engaged in
Federal Personnel work in other than a purely clerical capacity,
and guards.
4. The Union and Internal Revenue Service have been parties to a
collective bargaining agreement, the terms of which cover the employees
in the above-described unit.
5. At all times material herein, John Moore has occupied the
position of Chief, Labor Relations Section, San Francisco District, and
has been and is an agent of Respondents, acting on their behalf, and is
a supervisor and/or management official within the meaning of Section
7103(a)(10) and/or (11) of the Statute, respectively.
6. Marshall Jennings has been the Union Steward for Respondent's
Fresno Post of Duty for approximately eight years. On June 9, 1981 he
filed a grievance (No. 81-42) on behalf of Revenue Officer Donald
Pritchard based upon Pritchard's nonselection for a promotion to a GS-12
Revenue Officer position. Five employees, including Pritchard, made the
Best Qualified List (BQL) for this position. Pritchard was ranked last
in score of the five employees on the BQL. There were two selectees:
Barry Tillotson and David P. Martino.
Pritchard and the two selectees were evaluated by Supervisor Creed
Bruce. The other nonselectees, Michael Davis and Richard Rische, were
evaluated by a different supervisor. The June 9 grievance was the third
grievance Jennings had filed for Pritchard. Jennings credibly testified
that he examined a great deal of evidence in connection with the first
two grievances. With respect to the first one, he concluded that
Supervisor Bruce was ignoring the good recordations and emphasizing the
bad ones. With respect to the second grievance, Jennings concluded that
Bruce was filing negative recordations in retaliation for Pritchard's
filing the first grievance. Accordingly, with respect to the third
grievance, which is the subject of this proceeding, Jennings was of the
opinion that Bruce's evaluation of Pritchard was probably biased. In
order to determine whether this allegation of bias could be
substantiated in a grievance proceeding, Jennings concluded that he
needed to obtain additional information which he felt was relevant and
necessary to the grievance proceeding.
7. The Union's Request For Information
Jennings attached a separate letter, also dated June 9, to the
grievance requesting all promotional material including but not limited
to the following: (a) Recordations for all BQL members for the
promotional period; (b) All promotion appraisals prepared by any
supervisors involved in the promotion during the promotion period; /4/
(c) All TDA and TDI /5/ case files cited by the supervisors in the
promotion appraisals as supporting above average work for BQL members;
(d) all 795's /6/ for BQL members during the promotion period; and (e)
All written or verbal material furnished the selecting official at his
request (G.C. Exh. 2).
8. The Respondent's Response to the Union's Request
a. Article 13, Section B of the contract states that a steward
representing an employee in the processing of a grievance is entitled,
upon request, to be furnished with the "evaluative material" generated
or utilized by the ranking panel or ranking official in assessing the
qualifications of the eligible candidates in regard to a grieved
promotion action. Section B further provides that "the aforementioned
material consisting of Panel evaluations, supervisor promotion
appraisals, and records related to experience, training and awards will
be provided to the grieving employee's steward subject to the Employer's
legal responsibility and obligation to protect the privacy of the
eligible candidate(s) involved in the promotion in question."
The contract does not provide that the steward is only entitled to the
"evaluative material" and nothing more.
b. Pursuant to this contractual provision, Jennings was provided
with the "evaluative material" (Resp. Exh. 3). Although this included
one promotion appraisal for each BQL member, Jennings was not told
whether these five appraisals were in fact all promotion appraisals
prepared for the BQL members during the promotion period. Jennings was
not furnished with any of the information he requested in his June 9
letter. It should be noted, however, that Pritchard already had this
material with respect to himself.
c. Subsequent to his June 9 request, Jennings had further
discussions with Respondent's Labor Relations Specialist, Duncan
Collins, explaining his initial request for information (Tr.
43:21-44:24; 58:1-9) and clarifying any doubts which may have existed
as to the reasons the Union desired this information. Mr. Collins
entered an appearance as one of Respondent's representatives at the
hearing and was present during Jennings' testimony. Jennings' testimony
regarding his subsequent discussions with Collins is uncontroverted.
d. Respondent refused the Union's June 9 request for the information
by letter dated June 18 (G.C. Exh. 3) on the ground that the Union had
not demonstrated that the information was "necessary for the processing
of the grievance." Jennings responded by letter dated June 24, stating,
that fair and systematic treatment of employees is the "heart" of the
promotion process and that he needed the requested material which formed
the basis of the evaluations and scores involved to ensure that the
grievant was treated fairly and systematically (G.C. Exh. 4).
Respondent again refused Jennings' request for the information by letter
dated July 22, not on the grounds that the requested data was not
relevant or necessary to the processing of the grievance but because it
feared Jennings would use it to substitute his own judgment for that of
a manager's in comparing Revenue Officers. Respondent also stated that
"the information sought constitutes an unreasonable burden upon
management in researching and locating information and documents which
may not be readily available" /7/ (G.C. Exh. 5).
e. By letter dated July 23, Jennings reiterated his concern, based
upon his review of the current evaluative material /8/ and the two prior
grievances filed by Pritchard against Bruce, that the same standards had
not been applied for all the applicants in the promotion action (G.C.
Exh. 6). Jennings did not receive any further response to his request.
9. The Union's Assertion that the Information Requested is
Reasonably Available and Necessary to Processing the Grievance
The Union points out that Article 7, Section 14(A) of the contract
provides as follows:
Employees on the best qualified list who did not receive a fair
and objective rating from the ranking panel, ranking official or
immediate supervisor shall be entitled to priority consideration
if their rank order on the best qualified list is improved as a
result of an increased score.
Thus, the Union's purpose in alleging that Pritchard did not receive
a "fair and objective" rating from Supervisor Creed Bruce is to improve
his rank and thereby obtain priority consideration for the next
available opening (Tr. 40). A more detailed description of the
information requested by the Union is as follows:
a. Recordations are written observations prepared by supervisors and
placed in employees' personnel files. These recordations serve to
refresh a supervisor's memory of an employee's performance and may be
cited by supervisors in promotion appraisals as examples of both good
and bad work. Recordations were regularly maintained in employees'
personnel binders in the Fresno Post of Duty for 2-3 years. Jennings
requested the recordations for all five BQL members during the promotion
period to compare the way they were evaluated to Pritchard's evaluation.
As previously noted, Jennings had reason to believe, based upon his
research in processing Pritchard's prior grievances against Bruce, that
Bruce tended to use only the negative and ignore the positive
recordations. Jennings had also discovered in his prior research that
Bruce's evaluations of previous selectees were not supported by their
actual case work. In the present grievance, one of the selectees had
only been supervised by Bruce for a couple of months. By comparing
Pritchard's recordations with those of the two selectees supervised by
Bruce and those of the two nonselectees supervised by a different
supervisor, Jennings felt he could determine whether Pritchard's
evaluation was biased.
b. Promotion appraisals are evaluations prepared by a supervisor
when an employee applies for a vacant position. At all times material
herein, appraisals were prepared only when an employee applied for a
vacancy; there were no annual appraisals. The promotion appraisal is
the supervisor's assignment of a numerical score supported by a
narrative statement, including citations to the employee's case work,
indicating the quality of the employee's work performance. The
supervisor's score represents 60% of the employee's final ranking score
in a promotion action (Tr. 42:3-4, Resp. Exh. 1, Art. 7, Sec. 4(H)(2)).
Promotion appraisals were regularly maintained in employee personnel
files in both Respondent's Fresno Post of Duty and the San Francisco
District Office for a period of 2-3 years. Jennings requested all
promotion appraisals prepared by any supervisor for all BQL members
during the promotion period partly because one of the selectees had only
been evaluated by Bruce for a short time and Jennings wanted to review
any appraisals he had received during the promotion period to determine
whether a preselection had occurred. As noted above, he also requested
the appraisals to demonstrate Bruce's general bias against Pritchard.
c. Taxpayer Delinquent Account (TDA) and Taxpayer Delinquent
Investigation (TDI) are actual case files consisting of information,
financial data, statements, contracts and conclusions. They represent
the Revenue Officer's work product and are often cited in promotion
appraisals to support the supervisor's narrative statements about the
quality of the employee's work. Jennings requested only those TDA and
TDI case files which were actually cited in the five promotion
appraisals provided him by Respondent, a total of no more than eight
files. TDA and TDI case files are regularly maintained by Respondent
for approximately two years. Respondent had made such files available
to Jennings in his processing of prior grievances.
d. A 795 is a daily work report filled out by Revenue Officers on
preprinted forms indicating the amount of work completed in a given day.
These reports are available to supervisors to use in performance
appraisals and are regularly maintained by Respondent in its Fresno Post
of Duty for three years. 795 forms had been disclosed to Jennings in
his processing of prior grievances. Jennings requested all the 795's
for the BQL members during the promotion period to compare that aspect
of Pritchard's work product to the other applicants as a way of
demonstrating that Creed Bruce had chosen not to use Pritchard's 795's
as positive indicators of his work performance.
e. Finally, Jennings requested any information furnished the
selecting official at his request. He wanted to know whether the
official had been furnished any information outside the promotion file
in light of his information from the grievant that a preselection might
have occurred. Jennings testified that he would have accepted a verbal
statement that no such material was furnished. For example, although
Supervisor Bruce was not the selecting official, his appraisal of a new
employee, Tillotson, obviously was a factor in that employee's
selection. Evan Beckstead, Chief of Staffing Unit One in the Employment
Section of the Personnel Branch testified that when an employee has not
actually been under his current supervisor's supervision for the entire
rating period, it is the supervisor's responsibility to contact the
former supervisor, obtain information of the individual's performance,
and incorporate that information in his current appraisal.
Beckstead did not know whether Supervisor Bruce did this in this
instance. Supervisor Bruce did not testify. However, his appraisal
states that he did contact previous supervisor Rich Gilbert and
"considered his input" in the preparation of the evaluation. Since the
evaluative material (also referred to as the promotion file or promotion
package) contains nothing in writing from Gilbert and no prior appraisal
of Tillotson, the Union's suspicion of Tillotson's preselection cannot
be investigated without additional information.
A. Whether Respondent's motion to dismiss Internal Revenue Service,
Washington, D.C. as a Party Respondent should be denied.
B. Whether the Respondent violated Section 7116(a)(1), (5) and (8)
by refusing to furnish the Union with information and data which was
"reasonably available and necessary" within the meaning of Section
7114(b) (4)(B) to the Union's performance of its representational
obligations in processing the grievance of Revenue Officer Donald
Pritchard regarding his nonselection in Vacancy Announcement 81-64.
C. Whether Article 7, Section 13(B)1 of the parties' collective
bargaining agreement constitutes a waiver by the Union of the
information requested of Respondent.
A. Whether the Motion to Dismiss Internal Revenue Service,
Washington, D.C. as a Party Respondent should be Denied.
1. Positions of the Parties:
The General Counsel's reason for naming Internal Revenue Service,
Washington, D.C. as a party Respondent is because the obligation to
bargain resides at the level of exclusive recognition. The Respondent's
objection is based upon its view that the Complaint does not allege, nor
does the evidence establish, that personnel from its Washington
headquarters were involved in the alleged violation of Section
7116(a)(1) and (5). Counsel for the General Counsel concedes that it is
not being alleged that Internal Revenue Service management personnel in
Washington were actually engaged in conduct alleged as an unfair labor
practice.
2. Applicable Law:
The Authority has found that when the obligation to negotiate is
breached by the acts and conduct of agency management, such a breach may
provide the basis for a Section 7116(a)(1) and (5) violation regardless
of the location of that agency management in the agency chain of
command. /9/ Analysis of the Authority's decisions discloses that the
identification of the proper respondent depends upon the facts of each
case and the role played by agency management. At the least, these seem
to be three possible situations.
a. Where agency management at two levels are involved, it is proper
to name both as respondents. Thus, in IRS, Hartford /10/ it was found
that Inspector Nagy and Rook, although employed by the Internal Revenue
Service Mid-Atlantic Region, Newark, New Jersey, were admitted agents of
Internal Revenue Service, Washington, D.C., and Internal Revenue
Service, Hartford District Office. The Authority's remedial order was
directed at both Respondents, and the Authority did not address the
issue of whether there were two separate Respondents or one single
Respondent.
b. Where higher-level agency management initiates or orders the acts
and conduct deemed to be a breach of the bargaining obligation, the
Authority has found no statutory violative by the subordinate agency or
activity whose officials actually carried out the directives from
higher-level agency management. /11/ In the Galveston case, agency
management at the Regional level directed the immediate implementation
of a policy which altered an established condition of employment in the
Galveston District in violation of Section 7116(a)(1) and (5). The
Authority concluded that it would not effectuate the purposes and
policies of the Statute to find a separate violation by the Galveston
District Office which "merely complied with a direction from agency
management at a higher level because it had no choice except to do so .
. . "
The Authority treated the Galveston District Office as a Respondent and
dismissed as to it. In the Montana Guard case, a contract negotiated by
the Montana National Guard with the exclusive representative was
forwarded to the National Guard Bureau for approval. The Authority
found a violation of Sections 7116(a)(1), (5) and (8) against the Bureau
but not against the Montana National Guard based on its "ministerial
actions in implementing the directives of higher-level agency
management. The Complaint against the Guard, a separate Respondent, was
dismissed.
c. Where lower-level agency management initiates the conduct found
to be a breach of the bargaining obligation, the Authority has found a
violation of the Statute by the District Office (the only named
Respondent) employing the lower-level management officials. /12/ Thus
in SSA Sutter District Office the Authority found that agency management
at the District Office level violated Section 7116(a)(1) and (5) of the
Statute by announcing a unilateral change in policy affecting the
employees' conditions of employment notwithstanding that exclusive
recognition and the current collective bargaining agreement remained at
the higher Regional level within the agency. In its decision the
Authority first clarified the fact that the Sutter District Office was
only part of the appropriate bargaining unit covered by a contract
between the Region (a higher level of the agency) and a Council of
District Office Locals. The Authority then went on to make the
following observations:
In the charges and the consolidated complaint herein the SSA's
Sutter District Office and not the San Francisco Region was
alleged as the Respondent. As noted above, at all times relevant
herein the level of recognition and current collective bargaining
agreement remained at the San Francisco Regional level. Clearly,
in the circumstances of this case, the District Office was acting
as an agent for the Region and, as such, its actions were binding
upon the Region. Accordingly, the Authority construes its order
herein to bind the Region.
I conclude from the foregoing that the failure of the pleadings to
name SSA's San Francisco Region as a Respondent did not relieve the San
Francisco Region from its statutory obligation as the exclusive level of
recognition to negotiate in good faith and comply with the Authority's
remedial order. However, the fact that the Authority felt obliged to go
out of its way to construe its own order to bind the San Francisco
Region is, to me, an indication that it would have been better practice
to name the San Francisco Region in the pleadings and thus remove any
doubt as to its responsibility (as the level of recognition) for the
acts of its agent, the District Office.
In this way, the bargaining order would be directed at the principal and
its agent (the San Francisco Region and its Sutter District Office),
rather than just to the agent alone (the Sutter District Office).
Clearly, it was the Authority's intention to remove any doubt as to the
liability of SSA's San Francisco Region. /13/ What is not clear is how
an organizational entity such as the District Office meets the
definition of an "agency" within the meaning of Section 7103(a) of the
Statute. By virtue of Respondent's Answer in the present case, there is
no "agency" issue before me.
3. Discussion and Ruling
Examination of the collective bargaining agreement discloses that its
coverage pertains to all "professional and nonprofessional employees of
the Internal Revenue Service, district, region, and national office. . .
. " The Complaint in this matter does not include the "National Office"
as a separate Respondent even though the high-level agency officials and
labor relations personnel may very well be employed in the National
Office. Therefore, I read the caption of the Complaint in the
descriptive sense intended by the General Counsel. Thus, the words
"Internal Revenue Service, Washington, D.C." is intended only to name
the appropriate level of recognition and show its geographical location.
Counsel for General Counsel concedes, and the record establishes, that
agency management at a higher level in the agency were not involved in
the alleged unfair labor practice.
My view of the case is that the General Counsel, by naming "Internal
Revenue Service, Washington, D.C." in the caption is only attempting to
comply with the Authority's SSA Sutter District Office decision, a case
arising in the same FLRA Regional office as the instant case. There,
the Authority noted that its order against the District was binding upon
the Region (an unnamed Respondent) because it was the "level of
recognition."
By naming the level of recognition as Respondent herein the General
Counsel seeks to obviate any confusion as to who is bound by any
bargaining order directed herein. Moreover, as the Authority noted in
SSA Sutter District Office, a principal is liable for the acts of its
agent.
Based upon the foregoing, the motion to dismiss Respondent, Internal
Revenue Service, Washington, D.C. is hereby denied.
B. Whether the Collective Bargaining Contract Contains A Clear and
Unmistakable Waiver of the Union's Right to the Information Requested.
The Authority has held that a waiver of a statutory right must be
clear and unmistakable and may not lightly be inferred. /14/ Contrary
to Respondent's contention, I find and conclude that Article 7, Section
13B of the agreement contains no waiver, express or implied, of the
Union's right to additional information not specifically mentioned in
the agreement.
In determining whether a waiver exists, Respondent contends that one
may look outside the four corners of the contract and consider oral
testimony about the collective bargaining history. /15/ In opposing the
admission of oral testimony, the General Counsel contends that it is
inconsistent to argue on the one hand that the contractual language is
so clear that it contain an unmistakable waiver, and on the other hand
to argue that the contractual language is so ambiguous that parol
evidence is necessary to resolve the ambiguity. In any event the
General Counsel offers the additional argument as follows:
Moreover, if such evidence were nonetheless permitted,
statutory hearings would acquire the earmarks of arbitration
proceedings involving contract interpretation questions. Such an
expensive and time consuming (sic) process seems well removed from
the fundamental issue of whether a clear and unmistakable waiver
exists. Finally, to make such a determination on the basis of
witness reliability and recall provides a significant risk of
inconsistent results.
See, for example, IRS, A/SLMR No. 1079 (1978) and IRS and NTEU,
OALJ 82-31 (1981) involving essentially the same contract language
but reaching different conclusions.
Although the Authority has not specifically addressed this issue, the
Authority has adopted decisions by Administrative Law Judges in which
bargaining history has been relied upon to determine the existence of a
waiver. (See cases cited in fn. 14). In the circumstances of this
case, I find it unnecessary to resolve this dispute between the parties
because, in fact, Respondent did not present any testimony on bargaining
history. /16/ Based upon the foregoing, I find and conclude that the
Union did not clearly and unmistakably waive its right to the
information requested.
C. Whether the Respondent violated Section 7116(a)(1), (5) and (8) of
the Statute by refusing to furnish the Union with information which was
reasonably available and necessary for the Union to fulfill its
representational duty of assisting an employee in the processing of a
grievance.
1. Applicable Law
It is well established under the Statute that a Union is entitled to
receive information necessary to the performance of its representational
responsibilities, including the effective evaluation and processing of
grievances. /17/ This right to information is part of the obligation to
bargain in good faith and is derived from Section 7114(b)(4) of the
Statute. /18/
This statutory section requires an agency, upon request, to furnish an
exclusive representative with data normally maintained by the agency in
the regular course of business, and which is reasonably available and
necessary for full and proper discussion, understanding and negotiation
of subjects within the scope of collective bargaining.
2. The Reasons for the Union's Request were Made Clear to
Respondent.
In the present case, it is true that the Respondent provided the
Union with the "evaluative material" as specifically required by the
contract. The Union's request for information, however, went beyond the
material specifically enumerated in the contract. From the Union's
point of view the evaluative material is inadequate for the purpose of
establishing whether Pritchard's rating was "fair and objective" (see
Article 7, Section 14A) and, if its suspicions are correct, the
"evaluative material" is tainted and unreliable. Essentially the
Union's request was for the raw data upon which the supervisors'
promotion appraisals were based. Based upon my review of the pertinent
exhibits, together with the credited testimony of Steward Jennings, I
find that the Union made clear to Respondent precisely which data it
sought and the reasons why. Indeed Respondent's letter of July 22, 1981
(G.C. Exh. 5) clearly demonstrates that Respondent knew the Union's
intentions when Respondent expressed its concern that the Union intended
to (1) compare one Revenue Officer with another and (2) substitute its
judgment for that of the group manager.
3. The Information is Reasonably Available and Normally Maintained
by the Agency
The evidence is undisputed that all of the requested information is
readily available and maintained by the Agency in the normal course of
its business. Recordations are kept in each employee's personnel binder
at the Post of Duty and at the San Francisco District Office for two to
three years. Promotion appraisals are given to the employee, a copy is
placed in the Personnel binder at the Post of Duty, and a copy is sent
to the District Office (Tr. 47). They are kept for at least one year,
if not for two to three years. The six to eight cited TDA and TDI files
are kept by the Internal Revenue Service in the District, then in the
Centralized Services Unit in Sacramento, California for two to three
years. Requested TDA and TDI files had been previously furnished to the
Union for its use in grievance processing. The 795's are kept by the
employee, the Supervisor and the District for three years. Requested
795's had been previously given to the Union for its use in grievance
processing. Accordingly, I conclude that the information was reasonably
available and normally maintained by the Agency in the regular course of
business.
4. The Information Requested is Relevant and Necessary
a. Recordations
I agree with the Union and the General Counsel that recordations are
relevant and necessary. Recordations are observations by a supervisor,
positive or negative, which are reduced to writing and placed in an
employee's file. At appraisal time, these are available for and are
often cited in employee's evaluations. A supervisor's subjective
determination to ignore or to cite negative or positive recordations is
a determination which clearly has an impact on an appraisal and one's
numerical score. Clearly, then, this information is relevant and
necessary.
b. Promotion Appraisals
An appraisal is a narrative statement about an employee and an
assignment by a supervisor of a numerical score. (Theoretically, if two
employees received the same narrative characterization of their
"judgment" or "work quality", they would also receive the same numerical
score.) In a promotional action, the appraisal is worth a maximum of
sixty percent of the applicant's overall ranking. Since the appraisal
directly affects a candidate's ranking, it is intrinsically relevant and
necessary. Comparison of a current appraisal prepared with a specific
promotion action in mind could very well be inconsistent with a
promotion appraisal previously prepared by the same or a different
supervisor, especially in the event of an improper preselection decision
as suspected in this case. /19/ For this additional reason, the
promotion appraisals are relevant and necessary.
c. All TDA and TDI Case Files
These files constitute a Revenue Officer's work product and may be
used in the promotion process as the basis for citations in the
appraisal to support above or below average work. The Union is not
asking for all case files but only those actually cited in the five
appraisals, as supporting "above average work." The Union needs to
ascertain whether or not the citations of the new data comport with
fact, therefore, this information is relevant and necessary. Of course,
it would be appropriate for Respondent's to furnish sanitized files to
protect the taxpayer's identity.
d. All 795's for the BQL Members for the Promotion Period
These are completed preprinted forms showing a Revenue Officer's
daily activities and in a way show his production record. To the extent
that a supervisor chooses to refer to an employee's high or low
production as a factor in the appraisal itself, I believe these forms
are relevant and necessary to the Union. This is not quite the same as
comparing the production of one employee with that of another employee.
e. All material furnished the selecting panel at its request
This catch-all request for any information actually considered by the
panel in its deliberations obviously is relevant and necessary. If none
exists, Respondent merely has to say so. If material does exist, it
should be furnished to the Union.
5. The Information Request is Relevant and Necessary with respect to
All BQL Members
In its brief, the Union argues that information with respect to all
BQL members is necessary to determine if "systematic and equitable
procedures were followed in evaluating the grievant vis-a-vis the other
candidates." In her brief, Counsel for General Counsel states that such
information is necessary "to provide the Union with a yardstick by which
Bruce's suspect methods could be compared." I agree with these
contentions.
At the outset, let me point out the obvious. Just as teachers and
professors may have a reputation for being easy or hard in their grading
standards, the same is true of supervisors. Some supervisors expect
more from their subordinates than do other supervisors and, as a result,
may have a reputation for being rather stingy in their dispensation of
"outstanding" and other high ratings. At the same time, other
supervisors may be less strict and have a reputation for being overly
generous in what they say and how they grade an employee's performance.
There are some who would say that in a properly managed organization, it
is the responsibility of higher-level management officials to be aware
of the idiosyncrasies of their supervisors and take this into account in
their evaluation of a supervisor's recommendations, so that employees
are not disadvantaged thereby. But what if an employee is not selected
for a promotion and genuinely believes he or she is the victim of
disparate treatment by virtue of a lack of uniformity in the evaluation
standards utilized by different supervisors? In such event I believe
that employee has a right to raise a question-- as Pritchard did here
through his Union representative-- with respect to "the fair and
systematic treatment of employees." To this extent, employee Pritchard
is raising a question of disparate treatment of himself vis-a-vis all
other employees on the BQL list. For this reason, the scope of
Jennings' request, that is, all employees on the BQL list, is in my
opinion not overbroad.
In addition, the Union is contending disparate treatment of Pritchard
vis-a-vis the two other employees appraised by Creed Bruce, i.e.
Tillotson and Martino.
Thus, the Union suspects that Bruce's bias is the reason for Pritchard
receiving low scores on his promotion appraisal, and that Bruce's bias
towards Pritchard also may explain the higher ratings given to employees
Tillotson and Martino. Obviously, if the Union's suspicions are
correct, a biased supervisor could deliberately give Pritchard a low
rating and/or simultaneously give his competitors a higher rating, thus
accomplishing the same result. As a matter of fact, in the case at
hand, both Tillotson and Martino were selected by the Evaluation Panel.
I need not decide whether the mere assertion of alleged supervisory
bias, without more, is sufficient to embark on a search for confirming
data. Here, Steward Jennings had represented Pritchard in two previous
grievances and based upon information supplied by Pritchard as well as
management had reached an independent conclusion that Pritchard was a
victim of supervisory bias. All he is asking for here is an opportunity
to examine the raw data essential to support his theory in preparing for
a grievance proceeding. Of course, the possibility exists that the data
will not be as helpful as Jennings envisions, and he might very well
conclude that supervisory bias does not exist or at least cannot be
proven. But even if Jennings is able to gather evidence of bias, the
ultimate decision will be made by the decision-making grievance official
or an arbitrator.
In order for the Union to have an opportunity to properly represent
Pritchard in his grievance proceeding, the Union needs more than the
"evaluative material" furnished pursuant to the contract. I have
already found that the requested information is reasonably available,
relevant and necessary for this purpose. I further find that its
request with respect to all BQL members is not overbroad. All members
of the BQL list were competing for the same promotion vacancies and this
was known to Bruce and the other supervisor with whom he shared an
office. In Internal Revenue Service, Jacksonville /20/ the Authority
affirmed Administrative Law Judge William Naimark who stated as follows:
The data sought by Complainant herein respecting the other
probationers might well be vital in enabling the union to properly
represent Grubbs. A comparison among the performance of those in
the same job classification could result in persuading the
employer that Grubbs' performance differed little from the
colleagues. disparate treatment between employees is long
recognized as a factor in determining whether discriminatory
motivation by an employer existed. Likewise, disparity of
treatment accorded employees by an employer could be a significant
consideration in the proper representation of such employee by her
representative.
The evaluations, reviews, performance ratings and similar data
concerning the capabilities of other probationers would be
relevant in determining whether such treatment by Respondent was
justified. To enable Complainant to make this determination, and
thus effectively represent Grubbs, access to such information
would be necessary. The union would be able, under such
circumstances, to fulfill its obligation in representing Grubbs
and administering the contract.
The instant case presents a sufficiently parallel situation with
respect to the allegations of disparate treatment, plus the added
ingredient of alleged supervisory bias by one of the supervisors
involved. Accordingly, I find that the Union is entitled to the
information requested for all employees on the BQL list. In this way,
the Union will be able to effectively represent Pritchard in his
grievance proceeding.
By the acts and conduct described above, Respondents have refused and
continue to refuse to comply with Section 7114(b)(4) of the Statute by
refusing to furnish the Union relevant and necessary information as
requested in connection with the processing of a grievance which is
normally maintained by Respondents in their regular course of business,
is reasonably available and necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of collective
bargaining and does not constitute advice, counsel or training for
management officials or supervisors relating to collective bargaining.
Accordingly, I find and conclude that Respondents have thereby violated
Section 7116(a)(1), (5) and (8) of the Statute.
Pursuant to Section 2423.26 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the Internal Revenue Service, San Francisco District
and the Internal Revenue Service, Washington, D.C. shall:
1. Cease and desist from:
(a) Refusing to furnish information to the exclusive
representative, National Treasury Employees Union, which is
relevant and necessary to the effective processing of grievances
over nonselection for promotion.
(b) In any like or related manner interfere with, restrain or
coerce our employees in the exercise of rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide to National Treasury Employees Union the following
information which was requested in connection with grievance
#G-81-42 and which is relevant and necessary to the processing of
said grievance: (1) recordations on all Best Qualified List (BQL)
members for the promotion period (2) all promotion appraisals
prepared during the promotion period for the employees involved in
the promotion action; (3) all TDA and TDI files cited by the
supervisors in promotion appraisals as supporting above average
work for the BQL members; (4) all 795's for the BQL members for
the promotion period; (5) all material furnished to the selecting
official at the selecting official's request.
(b) Post at its San Francisco District Office, copies of the
attached notice marked "Appendix." Copies of said notice, to be
furnished by the Acting Regional Director for Region 9, after
being signed by an authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Acting Regional Director for Region 9 in
writing, within 30 days from the date of this order, what steps it
has taken to comply herewith.
/1/ The motion to dismiss "Internal Revenue Service, Washington,
D.C." as a separate Respondent is hereby denied for reasons set forth in
my Conclusions of Law.
/2/ Section 2423.22 of the Rules and Regulations provides that a
motion to postpone a hearing be filed with the Chief Judge at least five
(5) days prior to the opening of the scheduled hearing. The notice of
hearing herein included a calendar call procedure (ALJ Exh. No. 1)
informing the parties that on the date set forth in the Complaint a
prehearing conference would be held, following which hearings "will
commence and continue, in order, until all cases are heard.
Accordingly, parties should be prepared to go to trial as of the date of
the pre-hearing (sic) conference. Parties should have their witnesses
available, although not present, at the pre-hearing (sic) conference."
Counsel for Respondent did not file a timely motion for postponement
prior to the hearing, and did not file any request with the Chief Judge
to schedule the hearing on specific dates when all of its witnesses
would be available. Rather, Counsel came to the prehearing conference
with the mistaken expectation (Tr. 7) that the hearing in his case would
be scheduled "during the week of March 1." (Actually all hearings were
completed by February 26.) Although the General Counsel came to the
prehearing conference prepared for all of its cases, Counsel for
Respondent ignored the calendar call requirement that he have his
witnesses available and that he be prepared to go to trial as of the
date of the conference. In these circumstances, I concluded that good
cause had not been shown for granting what appeared to be an untimely
request for a continuance. That ruling is reaffirmed.
/3/ Motions by Respondent and General Counsel to correct the
transcript are hereby granted. The corrections are set forth in
Appendix B.
/4/ The promotion period in this action was March 1980 through March
1981.
/5/ TDA stands for Taxpayer Delinquent Account; TDI, for Taxpayer
Delinquent Investigation.
/6/ 795's are daily work reports.
/7/ Respondent failed to present any evidence at the hearing
demonstrating the unavailability of the requested information.
Jennings' testimony with regard to the maintenance and availability of
the material and regarding the prior disclosure of identical material
(795's and TDA, TDI case files) is uncontroverted.
/8/ Jennings found no specific examples in the appraisals as required
by Internal Revenue Service regulations to support the numerical grade
of five (outstanding) given one of the selectees (G.C. Exh. 6, Resp.
Exh. 1, Art. 7, Sec. 4(F); Tr. 48:16-22).
/9/ Department of Health and Human Services, Social Security
Administration, Office of Program Operations and Field Operations,
Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981),
herein referred to as SSA Sutter District Office; Department of the
Interior, Water and Power Resources Service, Grand Coulee Project, Grand
Coulee, Washington, 9 FLRA No. 46 (1982).
/10/ Internal Revenue Service, Washington, D.C., and Internal Revenue
Service, Hartford District Office, 4 FLRA No. 37, enforced USCA DC, No.
80-2423 (Feb. 21, 1982).
/11/ Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas, 10 FLRA 26, 10 FLRA
No. 9, (1982); Departments of the Army and the Air Force, National
Guard Bureau and Montana Air National Guard, 10 FLRA 553, 10 FLRA No. 96
(1982).
/12/ Department of Health and Human Services, Social Security
Administration, Office of Program Operations and Field Operations,
Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981).
/13/ These cases are a study in contrast. In Galveston the principal
was held liable and its agent was absolved from guilt because it was
merely following orders. In SSA Sutter District Office, the principal
was not relieved from liability based upon the independent acts of its
agent. If there is a distinction to be found in these cases, I note
that the level of exclusive recognition in Galveston was at the lower
level (i.e. the District) whereas in SSA Sutter District Office the
level of exclusive recognition was at a higher level (i.e. the Region).
See also Department of Defense Dependent Schools, 11 FLRA No. 100 (March
14, 1983) wherein the Authority cites Galveston as standing for the
proposition that "the acts and conduct of higher level agency management
may constitute an unfair labor practice when such conduct prevents
agency management at the level of exclusion recognition from fulfilling
its bargaining obligation under the Statute." Thus, the Authority found
a violation of Section 7116(a)(1) and (5) by an agency other than the
one holding exclusive recognition.
/14/ Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2; Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA
No. 82; Oklahoma City Air Logistics Center, Tinker Air Force Base,
Oklahoma, 3 FLRA 511, 3 FLRA No. 82; Internal Revenue Service,
Jacksonville District, Jacksonville, Florida, 1 FLRA 265, 1 FLRA No. 35
and cases cited therein.
/15/ Respondent cites the Authority's decision in Department of the
Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 and the National Labor
Relations Board's decision in Radiogear Corp., 199 NLRB No. 137, 81 LRRM
1402.
/16/ Respondent's Motion to Continue the Hearing because its
"bargaining history witness" was unavailable was denied at the hearing
and affirmed herein. (See fn. 2). Respondent's request for a general
ruling on the admissibility of bargaining history testimony (Tr.
10:12-15) is clearly inappropriate in the absence of any specific offer
of proof and is denied. Moreover, it constitutes a request for an
advisory opinion which is specifically forbidden by Section 2429.10 of
the Authority's Rules and Regulations.
/17/ Veterans Administration Regional Office, Denver, Colorado, 10
FLRA 453, 10 FLRA No. 78; U.S. Customs Service, Region VII, Los
Angeles, California, 10 FLRA 251, 10 FLRA No. 47; Bureau of Alcohol,
Tobacco and Firearms, National Office and Western Region, San Francisco,
California, 8 FLRA 547, 8 FLRA No. 108; Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA 629, 7 FLRA No. 100; Director
of Administration, Headquarters, U.S. Air Force, 6 FLRA 110, 6 FLRA No.
24; Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82;
Department of Defense, State of New Jersey, A/SLMR No. 323 (1973), 3
FLRC 284, FLRC No. 73A-59 (1975); Internal Revenue Service,
Jacksonville District, Jacksonville, Florida, 1 FLRA 265, 1 FLRA No. 35.
/18/ Veterans Administration Regional Office, Denver, Colorado, 7
FLRA 629, 7 FLRA No. 100.
/19/ The Union also alleged preselection for promotion in Veterans
Administration Regional Office, Denver, Colorado, 7 FLRA 629, 7 FLRA No.
100.
/20/ Internal Revenue Service, Jacksonville District, 1 FLRA 265,
279, 1 FLRA No. 35; Department of Defense, State of New Jersey; A/SLMR
No. 323, 3 FLRC 284, FLRC No. 73A-59 (1975).
/21/ The record evidence herein affords no basis for granting
Respondent's request to order the Union to reimburse the Respondents for
"the reasonable retrieval and duplication costs as well as the costs
associated with sanitizing tax returns and tax return information.
Accordingly, this request is denied.
Herwood R. Roberson, Esq., For the Respondent
Lucinda Bendat, Esq., For the Charging Party
Josanna Berkow, Esq., For the General Counsel
WE WILL NOT refuse to furnish information to the exclusive
representative, National Treasury Employees Union, which is relevant and
necessary to the effective processing of grievances over nonselection
for promotion.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured by the
Statute.
WE WILL provide to National Treasury Employees Union the following
information which was requested in connection with grievance #G-81-42
and which is relevant and necessary to the processing of said grievance:
(1) recordations on all Best Qualified List (BQL) members for the
promotion period (2) all promotion appraisals prepared during the
promotion period for the employees involved in the promotion action;
(3) all TDA and TDI files cited by the supervisors in promotion
appraisals as supporting above average work for the BQL members; (4)
all 795's for the BQL members for the promotion period; (5) all
material furnished to the selecting official at the selecting official's
request.
. . .
(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 Acting
Regional Director for the Federal Labor Relations Authority whose
address is: Federal Labor Relations Authority, Region 9, San Francisco,
530 Bush Street, Suite 542, San Francisco, California, 94108, and whose
telephone number is: (415) 556-8105.
PAGE AND LINE NUMBER: CORRECTIONS
Page 2 Line 23: "Charging Party" to "General Counsel"
Page 2 Line 25: "Charging Party" to "General Counsel"
Page 7 Lines 19-20: "Proposed" to "procedural"
Page 8 Line 5: "SLMR" to "A/SLMR"
Page 8 Line 7: "his" to "the"
Page 8 Line 7: "His assistant" to "the Assistant Secretary"
Page 12 Line 25: "defer" to "refer"
Page 18 Line 10: "Charging Party" to "General Counsel"
Page 18 Line 21: "relative" to "evaluative"
Page 19 Line 24: "and" to "as"
Page 20 Line 4: "an" to "in"
Page 20 Line 5: "an" to "in"
Page 20 Line 17: -- insert "it that" between "preceded" and "The"
Page 20 Line 17: "The" to "the"
Page 23 Line 22: "evaluated" to "evaluative"
Page 28 Line 5: "8142" to "81-42"
Page 28 Line 13: "Brian" to "Bryan"
Page 35 Line 24: "8174" to "81-64"
Page 37 Line 14: "retalatative" to "retaliative"
Page 51 Line 17: "Tax Period" to "Taxpayer"
Page 51 Line 18: "Tax Period" to "Taxpayer"
Page 57 Line 18: "Dye" to "Collins"
Page 68 Line 19: "BERKAT" to "BENDAT"
Page 92 Line 17: "composition" to "position"
Page 99 Line 4: "is" to "as"
Page 106 Line 16: "Charging Party" to "General Counsel"
Page 106 Line 19: "71" to "1"
Page 106 Lines 21-22: "71(b)(4)(b)" to "7114(b)(4)(b)"
Page 107 Line 8: -- strike "S.Ct."
Page 107 Line 10: "715 U.S." to 351 U.S." and "7531" to "753"
Page 107 Line 20: "District 1, FLRA Number 35" to "District, 1 FLRA
No. 35"
Page 107 Line 21: "at SLMR" to "A/SLMR"
Page 107 Page 25: "LRRN" to "LRRM"
Page 108 Line 10: "NLRDB" to "NLRB"
Page 109 Line 2: "LRRN" to "LRRM"
Page 109 Line 9: "2 Assistant Secretray Decisions 974 and 1004" to
"two Assistant Secretary Decisions, No. 974 and 1004"
Page 109 Line 11: "73859" to "73A-59"
25 FLRA-ALJ; Case Nos. 6-CO-20005 6-CO-20006 February 8, 1983
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617,
Respondent, and UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE
AIR FORCE, SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE,
TEXAS, Charging Party
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute", and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
Pursuant to charges filed on November 2, 1981 and amended on July 22,
1982, and August 20, 1982, the General Counsel of the Federal Labor
Relations Authority (hereinafter, the "Authority") investigated and, on
August 30, 1982, filed the Consolidated Complaint and Notice of Hearing
which initiated this proceeding.
The complaint alleges that Respondent violated Section 7116(b)(1), (5),
and (8) of the Statute by refusing to comply with two arbitration awards
sustained by the Authority on August 12, 1981. /1/
On September 24, 1982, Respondent filed an Answer, admitting that the
Charging Party had filed grievances sustained by arbitrators, that the
arbitration awards had been sustained by the Authority, and that it had
refused to comply with the awards. Respondent denied, however, that it
thereby violated the Statute, and raised four affirmative defenses, two
of which have since been dropped. The remaining defenses are: that the
arbitration awards in the present case are (1) contrary to law, rule,
and regulation, and are subject to being overturned on ground similar to
that applied in the private sector; and (2) that the enforcement of the
arbitration awards by the Federal Labor Relations Authority violate the
Constitution of the United States.
The constitutional defense is based on First Amendment rights; and
it was resolved in the Authority's decisions upholding the arbitrators'
awards. See 6 FLRA at 414-415 and 6 FLRA at 75. In its decision on the
awards, the Authority also resolved exceptions, filed by Respondent,
that the awards violated 5 U.S.C. 7116(a)(1) as an interference in its
internal affairs; that the arbitrators exceeded their authority; that
the awards were based on nonfacts and a mistake of law; that the
arbitrators did not decide the issues before them; and that the awards
did not draw their essence from the collective bargaining agreements.
See 6 FLRA at 415-418, and 6 FLRA at 420-421. At 6 FLRA at 421, the
Authority also resolved an exception that the arbitrator, in that case,
refused to hear pertinent and relevant evidence.
On October 15, 1982, the General Counsel filed a Motion for Summary
Judgment that included 29 exhibits. /2/ On the same day, the motion was
referred to the Office of Administrative Law Judges, for disposition.
On November 15, 1982, Respondent filed its Opposition To Motion For
Summary Judgment, accompanied by a Motion For Leave To File Out Of Time.
The latter motion was granted, on December 20.
By an order dated December 20, 1982, Respondent was ordered to serve
upon the parties and this Office, by January 4, 1983, a statement of any
material fact which it disputed in the amended Motion for Summary
Judgment. By a telephone call of January 4, 1983, counsel for
Respondent advised this Office that he would be filing none; and none
has been filed.
The order of December 20, 1982, also ordered the parties to serve
briefs on the legal issues by January 18, 1983. On January 18, 1983,
the General Counsel served a Memorandum To The Administrative Law Judge
on Behalf Of The Counsel For The General Counsel. On January 17, 1983,
Counsel for Respondent advised this Office that it had elected not to
file any brief beyond its previously filed memorandum in opposition to
the Motion for Summary Judgment.
Based upon the entire record herein, including the pleadings, the
Motion for Summary Judgment, as amended, the Opposition to Motion for
Summary Judgment, and the brief filed herein, I make and enter the
following findings of fact, conclusions of law, and recommended order.
1. At all times material herein, the Charging Party has been an
agency within the meaning of 5 U.S.C. 7103(a)(3) of the Statute.
2. At all times material herein, Respondent has been a labor
organization within the meaning of 5 U.S.C. 7103(a)(4) of the Statute
and has been recognized as the exclusive representative of certain
employees of the Charging Party.
3. At all times material herein, the parties have been signatories
to collective bargaining agreements.
4. In July 1978, the Charging Party filed two grievances against
Respondent. They concerned notices posted by Respondent to advise
employees concerning studies being conducted by the Charging Party.
5. On October 4, 1979, in FMSC No. 79K/05798, Arbitrator Howard F.
LeBaron issued an award sustaining one of the grievances filed by the
Charging Party against the Respondent. On August 12, 1981, the
Authority sustained the award. See 6 FLRA No. 75, fully cited in
footnote 1, supra.
6. On November 2, 1979, in FMSC No. 79K/00196, Arbitrator John F.
Caraway issued an award sustaining the other grievance filed by the
Charging Party against the Respondent. On August 12, 1981, the
Authority sustained the award. See 6 FLRA No. 74, fully cited in
footnote 1, supra.
7. On November 5, 1981, the Charging Party filed charges with the
Authority, alleging that the Union had made no effort to comply with the
Caraway or the LeBaron awards.
8. Respondent concedes that it has failed to comply with the awards,
and argues (1) that they amount to unconstitutional governmental action
in violation of its First Amendment rights; and (2) that they do not
draw their essence from the collective bargaining agreement. These
arguments were raised in the exceptions Respondent filed to the
arbitrators' awards, and were resolved adversely to it by the Authority,
in its decisions upholding the awards.
9. The parties have raised no issue as to any fact material to this
proceeding. Respondent concedes, in its Opposition To Motion For
Summary Judgment, that "the essential facts underlying this dispute are
essentially undisputed."
10. Both parties have had an opportunity to submit written arguments
on the legal issues in this proceeding.
1. Summary judgment is a recognized device for "avoiding a useless,
expensive, and time consuming trial where there is no genuine, material
fact issue to be tried." Lyons v. Board of Ed. Charleston, etc. 523 F.2d
340, 347 (8th Cir. 1975). The Authority has adopted decisions of its
judges which were rendered upon motions for summary judgment. See,
e.g., National Guard Bureau, Maine Air National Guard (Augusta, Maine),
10 FLRA No. 101, 10 FLRA 583 (Dec. 3, 1982); United States Department
of the Treasury et al., 9 FLRA No. 72, 9 FLRA 637 (1982); and State of
California National Guard, 8 FLRA No. 11, 8 FLRA 54 (1982).
A decision on such a motion, in this case, is appropriate, since it
is clear that there is no genuine issue as to any material fact. In
such circumstances, the required hearing, under the Statute, may consist
wholly of an opportunity to present written argument, which has been
afforded to the parties herein. See State of California National Guard,
8 FLRA at 61.
2. Under the Statute, it is an unfair labor practice for a labor
organization:
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to refuse to consult or negotiate in good faith with an
agency as required by this chapter; . . . or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
See 5 U.S.C. Section 7116(b)(1), (5), and (8).
The "provision" with which Respondent is alleged to be in
noncompliance is found at 5 U.S.C. 7122, which deals with exceptions to
arbitral awards and provides that:
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any aribtrator's award pursuant
to the arbitration. . . . If upon review the Authority finds that
the award is deficient--
(1) because it is contrary to any law, rule, or regulations;
or
(2) on other grounds similar to those applied by Federal Courts
in private sector labor management relations;
the Authority may take such action and make such
recommendations concerning the award as it considers necessary,
consistent with applicable laws, rules or regulations.
It is undisputed, in this case, that Respondent has failed to comply
with two arbitration awards sustained by the Authority. Respondent's
defenses to this proceeding were made to the Authority and resolved
adversely to Respondent in its decisions upholding the awards. See
footnote 1 and findings 5, 6 and 8, supra.
Under applicable case precedent, the failure to comply with an
arbitration award had been held to constitute a violation of 5 U.S.C.
7116(b)(1) and (8).
See U.S. Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA No. 133, 9
FLRA 935 (1982). /3/
Accordingly, it must be concluded that Respondent had violated these
provisions, and that the General Counsel's Motion for Summary Judgment
should be granted.
Respondent has violated 5 U.S.C. 7116(b)(1) and (8); and therefore
the General Counsel's Motion for Summary Judgment should be, and it
hereby is granted.
Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the
Authority hereby orders that:
1. Respondent shall cease and desist from:
(a) Failing to comply with the November 2, 1979, final award of
Arbitrator John F. Caraway, in FMSC No. 79K/00196 and the October
4, 1979, final award of Arbitrator Howard F. LeBaron, in FMSC No.
79K/05798, or with any arbitrator's final award issued pursuant to
the Statute.
(b) In any like or related manner, failing or refusing to
comply with any provision of the Statute.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of any rights
under the Statute.
2. Respondent shall take the following affirmative action to
effectuate the purposes and policies of the Statute:
(a) Comply with the November 2, 1979, final award of Arbitrator
John F. Caraway in FMSC No. 79K/00196.
(b) Comply with the October 4, 1979, final award of Arbitrator
Howard F. LeBaron in FMSC No. 79K/05798.
(c) Post copies of the notice attached hereto as Appendix A, on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by an appropriate
official of the Respondent and shall be posted and maintained by
him for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted, and to which Respondent has
access. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Pursuant to 5 CFR 2423.30 notify the Regional Director,
Region 6, 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.
/1/ United States Department of Defense, Department of the Air Force
San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 6 FLRA
No. 74, 6 FLRA 412 (Aug. 12, 1981); United States Department of
Defense, Department of the Air Force San Antonio Air Logistics Center,
Kelly Air Force Base, Texas, 6 FLRA No. 75, 6 FLRA 419 (Aug. 12, 1981).
/2/ On November 1, 1982, the General Counsel filed a Motion To Amend
The Motion For Summary Judgment. On December 20, this Motion was
granted.
/3/ As held in the U.S. Army Health Clinic case, it is unnecessary to
pass upon whether such action also violates 5 U.S.C. 7116(b)(5). See 9
FLRA at 936, fn. 3.
Steven M. Angel, Attorney for Respondent
Elizabeth A. Martinez, Attorney for the General Counsel, Federal
Labor Relations Authority
WE WILL NOT fail or refuse to comply with the November 2, 1979, final
award of Arbitrator John F. Caraway in FMSC No. 79K/00196.
WE WILL NOT fail or refuse to comply with the October 4, 1979, final
award of Arbitrator Howard F. LeBaron in FMSC No. 79K/05798.
WE WILL NOT fail or refuse to comply with any other arbitrator's
final award issued pursuant to the Federal Service Labor-Management
Relations Statute.
WE WILL NOT in any like or related manner fail or refuse to comply
with any provision of the Federal Service Labor-Management Relations
Statute.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of any rights under the Federal
Service Labor-Management Relations Statute.
WE WILL comply with the November 2, 1979, final award of Arbitrator
John F. Caraway in FMSC No. 79K/00196, and the October 4, 1979, final
award of Arbitrator Howard F. LeBaron, in FMSC No. 79K/05798.
. . .
(Labor Organization)
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, Federal Labor Relations Authority, Region 6, whose
address is: Bryan & Ervay Street, Old Post Office Building, Room 450,
P.O. Box 2640, Dallas, TX 75221, and whose telephone number is: (214)
767-4996.
25 FLRA-ALJ; Case No. 3-CA-2704 January 14, 1983
BUREAU OF ENGRAVING AND PRINTING, Respondent, and NATIONAL TREASURY
EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER NO. 201,
Charging Party
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code, 5
U.S.C. 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute), and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Sec. 2410, et seq.
A charge was filed on August 3, 1981 by National Treasury Employees
Union and National Treasury Employees Union Chapter No. 201 (hereinafter
called the Union and/or NTEU), against Bureau of Engraving and Printing
(hereinafter called Respondent and/or BEP).
Pursuant to this charge, on July 16, 1982, the General Counsel of the
FLRA, by the Regional Director for Region 3, issued a Complaint and
Notice of Hearing alleging that Respondent violated Sections 7116(a)(1),
(5), and (8) of the Statute by conducting a formal meeting on July 10,
1981 without affording the Union advance notice and an opportunity to be
present. Respondent filed an answer Answer in which it denied that it
violated the Statute.
A hearing was conducted before the undersigned in Washington, D.C.
BEP, NTEU, and General Counsel of the FLRA was represented and afforded
full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence and to argue orally. Post hearing briefs were filed
and have been fully considered. /1/
Based upon the entire record /2/ in this matter, my observation of
the witnesses and their demeanor, and my evaluation of the evidence, I
make the following:
At all times material herein NTEU has been the collective bargaining
representative for a unit of Respondent's General Schedule employees,
including employees in the Office of Engineering. /3/ David Cohen is
Chief of BEP's Office of Engineering and, under his supervision is
Robert Kamosa, Manager of BEP's Engineering Division. The Office of
Engineering contains approximately 350 employees and includes the
Engineering Division.
On the morning of July 10, 1981 Kamosa issued and distributed a
memorandum addressed to "all personnel, Engineering Division." The
memorandum stated its subject as "Division Meeting" and then stated:
There will be a division meeting today at 1:00 p.m. All
personnel are required to attend. Dr. David Cohen will discuss
the coming reorganization.
All Engineering Division employees assembled at 1:00 p.m. in Room
608A in a large open area. Cohen conducted the meeting and told the
employees that a reorganization plan for the Office of Engineering had
been submitted and that he expected it to be approved. Cohen advised
the employees that no employees would be RIFed as a result of the
reorganization. One employee asked why there was to be a reorganization
and Cohen replied that it was to make the organization more efficient.
Another employee asked who would be in charge of the various components
established by the reorganization. Cohen did not respond. The meeting
lasted 10 to 15 minutes. /4/
Prior to the July 10 meeting BEP did not inform NTEU of the meeting.
NTEU was unaware of the meeting and no NTEU representatives attended the
meeting.
NTEU representatives first learned of the July 10 meeting and of the
proposed reorganization from an employee, after the meeting had
concluded. NTEU first received notice of the proposed reorganization
from BEP during the early part of August 1981. /5/ The record fails to
establish that NTEU asked to bargain concerning the reorganization.
The reorganization was implemented in late September 1981 and, as a
result, at least one bargaining unit employee was moved into a different
branch and his job duties were changed.
During the two years that Kamosa was manager of the Engineering
Division he had held about six meetings and Cohen spoke at two or three
of these meetings. The employees in the Engineering Division did not
have regular or daily contacts with Cohen. The area in which the July
10 meeting was held is a large open area where such meetings are usually
held. The main reason BEP scheduled the July 10 meeting was to deal
with rumors that were circulating concerning a possible reorganization.
General Counsel of the FLRA contends that the July 10, 1981 meeting
of the Engineering Division was a "formal discussion . . . concerning .
. . any personnel policy or practices or other general condition of
employment . . . " within the meaning of Section 7114(a)(2)(A).
Accordingly, General Counsel of the FLRA, urges that BEP's failure to
notify NTEU about the meeting and to give NTEU an opportunity to be
present constituted a violation of Sections 7116(a)(1) (5), and (8) of
the Statute.
The FLRA set forth factors to be considered in determining whether a
"discussion" is considered "formal" within the meaning of Section
7114(a)(2)(A) of the Statute in Department of Health and Human Services,
Social Security Administration, Bureau of Field Operations, San
Francisco, California, 10 FLRA 115 (1982) (hereinafter called SSA Case
I) and Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco Region, 10
FLRA 120 (1982) (hereinafter called SSA Case II). In SSA Case I, supra
at 118 the FLRA stated:
. . . The Authority has found meetings to be "formal
discussions" where, for example, management representatives called
meetings with employees at which attendance was mandatory and an
agenda had been established by management to discuss a number of
matters involving general conditions of employment or specific
changes in job duties. . . .
In SSA Case II, supra at 124, the FLRA, in concluding that a
discussion was not formal, noted:
. . . Thus, there is no showing of (1) whether any other
management representatives attended the meeting; (2) where the
meeting took place (i.e., in the supervisor's office or
elsewhere); (3) how long the meeting lasted; (4) how the meeting
was called (i.e., with formal advance written notice or more
spontaneously and informally; (5) whether a formal agenda was
established for the meeting; (6) whether employee attendance was
mandatory; or (7) the manner in which the meeting was conducted
(i.e., whether the employees' identities and comments were noted
or transcribed). . . /6/
In light of the foregoing criteria I conclude that the July 10, 1981
meeting was "formal", within the meeting of Section 7114(a)(2)(A) of the
Statute. In so concluding I rely on the facts that the employees were
invited to the meeting in writing; that attendance for the entire
Engineering Division was mandatory; that the subject of the meeting,
the reorganization, was set forth in writing; that the meeting was held
in the place where such meetings were usually held; that Office Chief
Cohen, a second level supervisor, conducted the meeting; that Cohen had
only addressed such meetings two or three times in the previous two
years; and that Kamosa had only called six or so Division meetings in
the past two years. All the foregoing are indicia of formality and
establish that this meeting was "formal" within the meaning of Section
7114(a)(2)(A) of the Statute. The July 10 meeting was not the kind of
everyday informal discussions that supervisors regularly and routinely
have with employees and which were meant to be excluded from the
coverage of Section 7114(a)(2)(A) of the Statute.
During Cohen's presentation concerning the reorganization, at least
one very fundamental question was asked relating to the reorganization
and the justification for it and Cohen answered. Further Cohen advised
the employees that there would be no RIFs as a result of the proposed
reorganization; clearly an attempt to explain the impact of the
proposed reorganization and to calm employee anxieties. Additionally,
the memorandum to the employees advising them of the mandatory meeting
stated that "Dr. David Cohen will discuss the coming reorganization."
In light of the foregoing I conclude that there was sufficient give and
take, both actual or planned, to make the July 10 meeting a "discussion"
within Section 7114(a)(2)(A) of the Statute.
Finally I conclude that the July 10, 1981 formal discussion concerned
a "personnel policy or practice or other general condition of
employment." A reorganization even a proposed one, /7/ of an entire
division, involves a fundamental change in conditions of employment and
would reasonably be anticipated to have a substantial impact on the
working conditions of affected employees. In this regard Cohen tried to
reassure the employees that there would be no rifs. One employee
testified that his day to day duties were in fact changed as a result of
the reorganization.
In light of all the foregoing therefore I conclude that the July 10
meeting was a formal discussion concerning conditions of employment
within the meaning of Section 7114(a)(2)(A) of the Statute and BEP's
failure to notify NTEU concerning the meeting and to give NTEU an
opportunity to be present at the meeting violated Sections 7116(a)(1),
(5), and (8) /8/ of the Statue. cf. Norfolk Naval Shipyard, Portsmouth,
Virginia, 6 FLRA 74 (1981) and see also the discussion of Judge Cappello
in Defense Logistics Agency, Defense Depot Tracy, Tracy, California,
OALJ 83-37 (1982).
The instant case does not involve an allegation of any unilateral
change in working conditions. Rather, the record establishes the NTEU
received notice of the pending reorganization about one month before it
became effective and there is no evidence that NTEU ever demanded to
negotiate or that BEP ever refused to negotiate concerning the impact
and implementation of the reorganization.
Having concluded that BEP violated Sections 7116(a)(1), (5), and (8)
of the Statute, I recommend that the FLRA issue the following:
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 Bureau of Engraving and Printing shall:
1. Cease and desist:
(a) Holding or conducting formal discussions with bargaining
unit employees without first providing, by appropriate advance
notice, the exclusive bargaining representative, National Treasury
Employees Union, an opportunity to be represented at such formal
discussions.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of 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) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by an
authorized official and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices customarily are
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III,
Washington Regional Office, 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 with this Order.
/1/ General Counsel of the FLRA filed a Motion to Strike Portions of
Respondent's Brief contending that the record does not support the
statements in Respondent's Brief that:
(a) The charge in the subject case had been dismissed by the
Regional Director and that the matter had been remanded to the
Regional Director by the General Counsel for issuance of
complaint.
(b) Because of Union's President Lee's failure to notify
Respondent of her position change, she did not receive timely
notice of a July 28 meeting.
(c) NTEU did not attend an August 10 meeting because it had
requested an August 11 meeting and one representative would not
attend without the other.
(d) Witness Konrad, was reminded of his statement contained in
his affidavit "The meeting was informal and brief. . . . " etc.
Respondent filed a Response to the Motion. Having considered all the
arguments, General Counsel's motion is granted with respect to items
(a), (b), and (c) and is denied with respect to item (d).
/2/ Pursuant to FLRA General Counsel's unopposed motion the
transcript of the hearing herein is correct as follows: (TABLE OMITTED)
/3/ There apparently are a number of other collective bargaining
units represented by other labor organizations.
/4/ The basic facts concerning the meeting are undisputed. However,
some witnesses testified that nothing was mentioned other than the
reorganization while others testified that in addition to the
reorganization other topics were brought up, but the reorganization was
the main reason the meeting was called. It is determined that this
difference in versions of what occurred is not significant. Employees
recalled the two questions being asked and Cohen answering one.
Respondent's witnesses did not recall questions being asked and
answered, but nor did they deny such questions and answer could have
occurred. Accordingly, I credit the version of the employee witnesses.
/5/ There was a meeting for Union representatives, July 28, 1981 at
which the reorganization was discussed. NTEU representative Lee, the
Chapter 201 President, did not receive the notification dated July 20,
until early August 1981 because she had changed jobs.
/6/ Although precisely stated, it seems clear that for a discussion
to be "formal" it does not have to meet all, or even most of these
criteria. In this regard I note the "or" between items 6 and 7.
Further, it is not clear whether these criteria are merely illustrative
and whether other criteria might establish a meeting as "formal".
/7/ The reorganization in question was pending at headquarters and
Cohen advised the employees that it was likely. Kamosa testified that
the purpose of the meeting was to make the people aware that this would
be a reorganization.
/8/ I need not reach the question whether the notification of
employees of a pending change in conditions of employment, before
notification of the collective bargaining representative of such a
fundamental change, would constitute an independent violation of Section
7116(a)(1) of the Statute, because that was neither pleaded nor urged by
the General Counsel of the FLRA.
Charles H. Palmer, Jr., Joanne W. Simms, For Respondent
William P. Milton, Jr., For Charging Party
Carolyn J. Dixon, Esq., Susan Shinkman, Esq., For General Counsel,
FLRA
WE WILL NOT hold or conduct formal discussions with bargaining unit
employees without first providing, by appropriate advance notice, the
exclusive bargaining representative, National Treasury Employees Union,
an opportunity to be represented at such formal discussions.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . .
(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 of compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region III, whose
address is: Washington Regional Office, P.O. Box 33758, Washington,
D.C. 20033-0758 and whose telephone number is (202) 653-8452.
25 FLRA-ALJ; Case Nos. 3-CA-2575 3-CA-2651 February 10, 1983
SOCIAL SECURITY ADMINISTRATION, DISTRICT OFFICE, PARKERSBURG, WEST
VIRGINIA, Respondent, and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3463, Charging Party
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
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., 92 Stat. 1191 (hereinafter referred to as the Statute), and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R. Chapter XIV, Sec. 2410, et seq. Local 3463, American Federation
of Government Employees, AFL-CIO (herein called the Union and AFGE Local
3463) /1/ filed a charge in Case 3-CA-2575 on June 19, 1981 and in Case
3-CA-2651 on July 14, 1981 alleging that Social Security Administration,
District Office, Parkersburg, West Virginia (hereinafter called
Respondent or SSA Parkersburg District Office), violated the Statute.
On July 30, 1982, pursuant to the above described charges, the General
Counsel of the FLRA, by the Regional Director for Region 3, issued an
Order Consolidating Cases, Complaint and Notice of Hearing alleging that
Respondent violated Sections 7116(a)(1) and (5) of the Statute because
of statements made by Respondent's agent and representative. Respondent
filed an Answer in which it denied that it had violated the Statute.
A hearing was conducted before the undersigned in Washington, D.C.
Respondent, the Union, and General Counsel of the FLRA were represented
and afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. Post hearing
briefs were filed by Respondent and Charging Party and have been fully
considered.
Based upon the entire record in this matter, /2/ my observation of
the witnesses and their demeanor, and my evaluation of the evidence, I
make the following:
On August 30, 1979 AFGE was certified as the exclusive collective
bargaining representative for a consolidated nationwide unit of
employees of the Social Security Administration, including the employees
at SSA Parkersburg District Office. AFGE Local 3463 is located in the
SSA Parkersburg District Office.
During 1979 certain members of AFGE Local 3463, including its
officers, were dissatisfied with the Union and objected to the unit
consolidation. Accordingly, they inquired of both AFGE and Department
of Labor as to what steps they could take. After receiving much
information, the officers and members of AFGE Local 3463 followed the
instructions received from AFGE National Vice President Fitch and they
notified Respondent, in writing, that they no longer desired to have
dues deducted or to be members of AFGE Local 3463. They also filed a
petition to have a decertification election. Vera Brothers, then
President of AFGE Local 3463, received a copy of a memorandum dated
December 17, 1979 from Fitch to Nicholas J. Nolan, AFGE National
Secretary-Treasurer, recommending that AFGE Local 3463 be disbanded
immediately.
Brothers informed Ronald J. King, SSA Parkersburg District Office
District Manager, /3/ soon after receiving a copy of the December 17,
1979 memorandum, that the Union had been disbanded and King received a
copy of the memorandum in January 1980. During this general time
Michael Ireland filed a dues reduction request with the Union.
During 1979, 1980, and 1981 King tried to ascertain the status of
AFGE Local 3463 from AFGE, FLRA and Department of Labor. By letter
dated February 20, 1981 John Harris, President of AFGE National Council
of SSA Field Operations Locals, advised King that action is being taken
to reestablish AFGE Local 3463; that pending election of officers
within AFGE Local 3463, Mike Ireland was designated as "a temporary
Council Representative to act on behalf of AFGE;" and that the "Local"
would provide King with a list of officers as soon as possible. A
temporary charter was issued to AFGE Local 3463 in May of 1981. By
letter dated May 19, 1981 King advised Harris, that King had not
received the list of newly elected officers of AFGE Local 3463 and asked
when the list of officers could be expected. King finally received such
a list of officers in December 1981.
By letter dated July 21, 1981 the Acting Director of Region 3 of the
FLRA advised the petitioners that the decertification petition was being
dismissed. The FLRA issued an "Order Dismissing Request For Review" on
February 26, 1982, which finally disposed of the decertification
petition.
On March 16, 1981, SSA Parkersburg District Office held its regular,
weekly staff meeting. These meetings are held every Monday, attendance
is compulsory for all employees, and the meetings are conducted by the
District Manager and the Assistant Manager. The purpose of the meetings
is to bring the staff up to date on performance, statistical and work
projections, and instructions. Supervisors and Field Representatives
are given an opportunity to speak. At the end of the meetings they are
open for general discussion where any other announcements can be made by
employees and any matter employees wish is discussed.
Towards the end of the March 16 meeting, when it was open for general
discussion, Brothers asked King, in light of all that had been
happening, whether there was a union or not; whether the Union was
defunct; and where she stood as a former officer. There was great
confusion as to the status of AFGE Local 3463.
King replied that there was a question whether AFGE Local 3463 currently
existed and he was not sure and that he was trying to find out. There
was apparently a great deal of discussion between pro and anti-Union
employees. King indicated, in response to a question as to why King met
in his office with Ireland, that King was dealing with Ireland because
Ireland had been designated by AFGE as the AFGE representative. King
indicated that he was told by an FLRA representative that there was a
question whether AFGE Local 3463 ever really existed and whether it
should have been covered by the national consolidation. /4/ A number of
employees, including Brothers, indicated that because there had been
open discussions and communications at staff conferences and with King
and other management officials, they didn't feel they needed a union.
At the regular staff meetings on June 1 and 15, 1981 Ireland inquired
as to the Union's current status. King responded that the
decertification petition was still pending. Employees expressed concern
over whether King's continued dealing with the Union and Ireland, meant
an end to Respondent's existing practice of having open communications
with employees, and an end to the employees' custom of raising matters
of interest at the staff meetings and of bringing problems and
complaints directly to King. /5/ Certain employees expressed concern
whether it was mandatory that they be represented by the Union just to
talk to King. King responded that the past policy of open
communications would continue and that they could continue to bring
complaints to him. He stated that, with respect to general discussions,
the employees did not require Union representation and that if there was
anything relating to adverse actions the employees had the option of
Union representation, but it was not mandatory. King said that Union or
no Union communications were necessary and that Ireland would have to
communicate with King and the staff.
In setting forth the foregoing description of the staff meetings held
on March 16 and June 1 and 15, 1981 I credit the testimony of witnesses
Brothers, King, and Linda Fields and discredit witnesses Ireland, Sharon
West, and Karen Archer. Although all the witnesses seemed somewhat
vague and their testimony was often not adequately focused on specific
events and conversations, I find Brothers, King, and Fields were more
candid and their testimony more consistent with the surrounding
circumstances, than were the other witnesses and their testimony.
General Counsel of the FLRA contends that King's statements at the
three staff meetings violated Sections 7116(a)(1) and (5) of the
Statute. It is alleged that King made statements to the effect that he
saw no need for the Union and that there never had been a Union in
Parkersburg and that these statements violated Section 7116(a)(1) of the
Statute. It is further alleged that King urged the employees to meet
and deal with him directly and not to go through the Union and that such
statements violated Sections 7116(a)(5) and (1) of the Statute.
The FLRA has held that Section 7116(e) of the Statute /6/ is intended
to assure neutrality in representation elections and, outside of a
representational context, to protect the expression of personal views,
arguments or opinions by management officials as long as the expressions
contain no threats of reprisal or force or promises of benefit or were
not made under coercive conditions. Oklahoma City Air Logistics Center
(AFLC) Tinker Air Force Base, Oklahoma, 6 FLRA 159 (1981) and Army and
Air Force Exchange Service (AAFES), Ft. Carson, Colorado, 9 FLRA 620
(1982).
It is concluded from all the circumstances that a reasonable employee
would interpret King's statements at the staff meetings of March 16 and
June 1 and 15, 1981 as statements of agency management and not merely
expressions of King's personal views.
In this regard it must be noted that King's statements were made to
assembled employees, at the mandatory and regular staff conference, and
during that portion of the meeting where, inter alia, employees are
permitted to ask the management representatives questions on almost any
subject related to the workplace. These were clearly not private or
personal conversations during which King was speaking merely as an
individual. Rather he was speaking and answering questions in his
capacity as the highest management official in the SSA Parkersburg
District Office. Compare Army and Air Force Exchange Service (AAFES),
Ft. Carson, Colorado, supra. and Department of the Air Force Plant
Representative Office, Detachment 27, Fort Worth, Texas, 5 FLRA No. 62
(1981).
The FLRA found that supervisor's remarks disparaging of a union
violated Section 19(a)(1) of Executive Order 11491, as amended.
Veterans Administration Hospital, Shreveport, Louisiana, 1 FLRA 383
(1979), U.S. Customs Service, Region IV, Miami, Florida, 1 FLRA 941
(1979). The General Counsel of the FLRA urges that disparaging remarks
about a union made by a management official, if not within the
protection of expression of personal views afforded by Section 7116(e)
of the Statute, constitutes a violation of Section 7116(a)(1) of the
Statute.
I conclude that King's comments were not at all derogatory with
respect to AFGE Local 3463. King was merely responding to employees'
questions, many raised by Ireland himself, and setting forth the current
status of the Union and the decertification petition, as he understood
it. The record establishes that the situation was very confused and
that King's statements were as accurate as possible and were not
derogatory with respect to the Union.
General Counsel of the FLRA further contends that King advised the
employees that they did not need the Union and that they could come to
him with their problems without the Union. That he was, in effect,
attempting to by-pass the Union and deal directly with employees. This
is a distortion of what occurred and the alleged comments were taken out
of context. Words do not have lives of their own, but rather get their
lives from the context in which they are uttered. King was responding
to employees' questions concerning whether his open communications
policy would continue. This policy had existed in SSA Parkersburg
District Office at least since King came to that office in 1979 and
employees were free to come to him individually to discuss problems or
concerns, or to raise them at the staff meetings. There was no showing
that this existing open communications policy was unlawful or violated
the Statute. The record does not establish that these open
communications concerned matters which King could only discuss with
Union representatives or constituted a by-passing of the Union. The
Statute does not forbid all communications between supervisors and
employees concerning problems or concerns of the employees and the
record herein does not establish that the past practice of open
communications in any way violated the Statute.
Thus King's reply to employees' questions that the open communications
policy would continue was not derogatory with respect to AFGE Local 3463
and was not an invitation to employees to by-pass the Union. King's
answer to an employee's question whether, because King was meeting with
the Union representative employees could still come to King without a
Union representative, could not reasonably be perceived as an invitation
by King to the employees to by-pass the Union or as a statement by King
that the employees do not need the Union. On the contrary, it was
merely a statement that business would be carried on as usual.
I conclude, therefore, that King's comments were not derogatory with
respect to the Union, did not interfere with, or coerce employees in the
exercise of their protected rights and did not constitute an attempt to
by-pass the Union and bargain directly with employees. Accordingly, I
conclude that King's statements on March 16, and June 1 and June 15,
1981 did not violate Sections 7116(a)(1) and (5) of the Statute.
In view of the foregoing, it is recommended that the Authority issue
the following:
It is hereby ordered that the complaint in Case Nos. 3-CA-2575 and
3-CA-2651 be, and it hereby is, DISMISSED.
/1/ American Federation of Government Employees, AFL-CIO, will herein
be called AFGE.
/2/ The record in this matter was completed with the receipt of
exhibits on January 31, 1983.
/3/ King became District Manager in SSA Parkersburg District Office
in February 1979.
/4/ There was no denial that an FLRA agent so advised King.
/5/ From the time King became district manager in early 1979
employees were free to come to King with problems and complaints and to
raise matters of interest at the close of the weekly staff meetings.
/6/ Section 7116(e) provides:
(e) The expression of any personal view, argument, opinion or
the making of any statement which--
(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
(2) corrects the record with respect to any false or misleading
statement made by any person, or
(3) informs employees of the Government's policy relating to
labor-management relations and representation,
shall not, if the expression contains no threat or reprisal or
force or promise of benefit or was not made under coercive
conditions, (A) constitute an unfair labor practice under any
provision of this chapter, or (B) constitute grounds for the
setting aside of any election conducted under any provisions of
this chapter.
Wilson G. Schuerholz, For Respondent
Thomas R. Wachter, For Charging Party
Donna M. DiTullio, Esq., For General Counsel, FLRA
25 FLRA-ALJ; Case No. 1-CA-20303 February 4, 1983
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, AND SOCIAL SECURITY ADMINISTRATION
NEW YORK REGION, BUREAU OF FIELD OPERATIONS, (NEW YORK, NEW YORK),
Respondent, and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3342,
AFL-CIO, Charging Party
Before: LOUIS SCALZO, Administrative Law Judge
This case arose as an unfair labor practice proceeding under
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101 et seq (hereinafter called "the Statute), and
the Rules and Regulations issued thereunder.
The complaint as amended alleged that commencing on or about June 15,
1982, and continuing thereafter, the Respondent, through the actions of
Mr. William F. McGurn, District Manager, of Respondent's Amherst, New
York District Office, committed unfair labor practices within the
meaning of Section 7116(a)(1) and (5) of the Statute, by unilaterally
changing conditions of employment of bargaining unit employees in the
Respondent's Amherst New York District Office, without first giving
reasonable notice to the American Federation of Government Employees,
AFL-CIO (Union) or the Charging Party, and without giving either an
opportunity to negotiate concerning the substance and impact and
implementation of the change. /1/
The change related to a requirement that Amherst District Office "staff
members who are late for work or from lunch and breaks . . . see their
supervisor immediately upon their return" to work.
At the hearing counsel representing the General Counsel contended
that over a period of years the imposition of this requirement was not
enforced when employees reported to work after periods of tardiness
amounting to only "a few minutes," and that to enforce the requirement
in such cases constituted a change in past practice (Tr. 133). It was
not contended that employees had, through past practice, developed a
right to be excused from the reporting requirement in cases of tardiness
in excess of "a few minutes."
The Respondent defends by contending that the requirement outlined
did not change the terms and conditions of employment, but that it was
merely a reaffirmation of an existing and consistently applied office
policy designed to prevent tardiness in all cases; and that there was
no obligation on Respondent's part to bargain concerning reaffirmation
of the policy. It is also argued that even assuming an obligation to
bargain, appropriate notice of the change was given, and that the
exclusive bargaining representative interposed no objection to the
substance of the requirement and did not request bargaining concerning
the matter after receipt of notice.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including my observation of the witnesses and their demeanor,
the exhibits and other relevant evidence adduced at the hearing, /2/ and
a brief filed by counsel representing the Respondent, I make the
following findings of fact, conclusions and recommendations.
The June 15, 1982 Memorandum
The circumstances giving rise to the complaint arose as the result of
Mr. McGurn's issuance of a memorandum on the subject of "Tardiness." It
was dated June 15, 1982, and copies were delivered to Amherst District
Office staff members individually on June 15, 1982. The memorandum set
forth the following explanation and instruction:
The Personnel Guides for Supervisors and the SSA/AFGE National
Agreement both provide that infrequent absence of less than one
hour shall normally be excused if the reasons are acceptable.
Supervisors cannot determine the acceptability of reasons if no
reasons are given. Thus, staff members who are late for work or
from lunch and breaks should see their supervisor immediately upon
their return. Thank you for your cooperation (G.C. Exh. 2).
The collective bargaining agreement in effect at the time of issuance
of the memorandum conferred on supervisors the authority to excuse
absences of one hour or less based upon a reasonable excuse presented by
employees. This authority was exercised by supervisors after discussing
such absences with employees involved (Tr. 24).
The policy outlined was also followed during the period governed by the
immediately previous collective bargaining agreement; and grievances
were filed when supervisory determinations on this subject were
questioned (Tr. 24-25). Mr. David Weiss, the local on-site
representative of the Charging Party and the Union, acknowledged that
the June 15, 1982 memorandum did not conflict with, and was not
otherwise inconsistent with, the provisions of the current collective
bargaining agreement (Tr. 25-26).
Respondent's "Personnel Guide for Supervisors," referred to in the
first sentence of the June 15, 1982 memorandum, provided the following:
G. Tardiness and Brief Absences
1. Supervisors may excuse occasional unavoidable absences of
less than 1 hour if the employee's explanation of the absence is
satisfactory. Tardiness may be charged to appropriate leave if
the employee consents, or to absence without leave. AWOL must be
charged if the absence is not excused by the proper authority and
in the judgement of the supervisor such leave is not warranted or
if the employee does not consent to a charge to leave.
2. The decision whether to excuse the absence, grant leave or
charge AWOL must be made at the time the absence occurs.
Supervisors may not accumulate absences from day to day and charge
leave when the accumulation reaches the minimum charge for leave
(R. Exh. 2).
Mr. Weiss acknowledged that in order to implement the policy
reflected in the collective bargaining agreement and the Respondent's
"Personnel Guide for Supervisors," it was necessary for employees to
report to supervisors following periods of tardiness so that appropriate
supervisory determinations excusing tardiness, or ordering that
tardiness be charged to a leave category could be effectuated (Tr. 103).
Circumstances Leading to Issuance of June 15, 1982 Memorandum
Mr. McGurn assumed duties as District Manager about one year before
issuance of the June 15, 1982 memorandum. About a month following his
arrival he became concerning with tardiness and considered the
possibility of instituting a "sign-in sheet" as a method of discouraging
tardiness. In accordance with the collective bargaining agreement then
in effect he raised the issue with Mr. Weiss during a regularly
scheduled consultation meeting (Tr. 106-108). Mr. Weiss interposed
objections to the proposed procedure on the ground that it would have
had a detrimental effect (Tr. 27).
Mr. McGurn later advised Mr. Weiss that he had decided to abandon the
idea "at that time." (Tr. 107). /3/
Just before issuance of the June 15, 1982 memorandum, Mr. McGurn
again became concerned about tardiness because District Office
supervisors had informed him that employees were not always reporting to
their supervisors when arriving late for work (Tr. 97-98, 106). Mr.
McGurn decided that some announcement to the staff would be necessary to
remedy the problem (Tr. 98). On June 11, 1982, the Friday preceding
issuance of the June 15, 1982 memorandum, Mr. McGurn informed Mr. Weiss
that he would have to do something about the problem of tardiness, and
that he (McGurn) planned to discuss the issue with Mr. Weiss (Tr.
110-112).
At Mr. McGurn's request, Mr. Weiss met with Mr. McGurn for about 10
to 15 minutes on June 15th to discuss the issue. The meeting was held
early in the morning (Tr. 98, 112). /4/ Mr. McGurn noted that tardiness
was a significant problem and that he was considering the issuance of a
memorandum concerning the issue (Tr. 13, 113). He stated that he wanted
to make it clear to all employees that tardiness would not be condoned
(Tr. 22), and that he wished to reaffirm existing policies with notices
to the staff (Tr. 98).
Mr. McGurn exhibited a draft copy of the June 15th memorandum to Mr.
Weiss and Mr. Weiss read it (Tr. 100, 116-117). /5/ Mr. Weiss
acknowledged that Mr. McGurn's concern was justified (Tr. 23); however,
he objected to the idea of distributing a copy of the memorandum to each
staff member on the ground that only a few employees were causing the
tardiness problem and that dissemination of the memorandum to each
employee was not an appropriate remedy (Tr. 13-14, 18-19, 115).
He did not object to the policy expressed in the memorandum (Tr. 98, 99,
100, 113). /6/ He recommended that Mr. McGurn either post a notice on
the bulletin board or orally remind the staff of the policy at a staff
meeting, instead of addressing a copy of the memorandum to each staff
member (Tr. 98-99, 113-114). /7/ The discussion centered about the
method to be used in notifying the staff (Tr. 100). Mr. McGurn agreed
to utilize one of the two alternatives suggested by Mr. Weiss if Mr.
Weiss would stipulate that such notice constituted a reaffirmation of
existing policy regarding tardiness. However, Mr. Weiss refused (Tr.
99, 108-109, 113-116).
The testimony of both Mr. Weiss and Mr. McGurn reflects that the
meeting ended without agreement on the issue. Mr. Weiss testified that
Mr. McGurn said, "We'll be seeing about it" (Tr. 14). Mr. McGurn
relates that he said he was going to have to issue the memorandum as
drafted (Tr. 113-114, 117), and that Mr. Weiss responded, "You do what
you think you have to do" (Tr. 99, 109). Mr. McGurn left the impression
that action would be taken in a relatively short period of time (Tr.
109-110). No request to bargain was interposed, and there was no
questioning of Mr. McGurn's intention to issue the memorandum
immediately (Tr. 99).
As noted, the June 15, 1982 memorandum was issued to District Office
staff members on June 15th. /8/
The record reflected that supervisors in the Amherst District Office
enforced the reporting requirement set out in the June 15th memorandum
without any special regard to the period of tardiness involved.
Employees were requested to report to their supervisors to explain the
reason for short periods of tardiness involving periods of a few
minutes, in the same manner that they were required to report reasons
for longer periods of tardiness.
History of Office Policy and Practice Relating to Tardiness
In October of 1972, Mr. Edward Driscoll, then Assistant District
Manager in the Amherst District Office, revised and reissued District
Office policies on behalf of management after consultation with
representatives of the Charging Party (Tr. 60-61, 67, 120-121).
Paragraph III C of the revised office policy statement provided:
III C. Tardiness
Employees are expected to report to work on time and to return
from lunch and relief periods on time. If you arrive late, report
promptly to your supervisor and give the reason. Occasional
instances of tardiness may be excused and charged to
administrative leave. Whether tardiness is excused will depend on
the reason and the individual's record of punctuality.
Habitual unexcused tardiness may result in charges to Absent
Without Leave (R. Exh. 1). /9/
At the time of issuance of the tardiness policy outlined there were
approximately 27 or 28 employees assigned to the Amherst District Office
(Tr. 58). They were located in an open office environment and it was
relatively easy to observe employees arriving and departing (Tr. 72).
/10/ Between the date of issuance of the tardiness policy in 1972, and
1980, the District staff grew rapidly to approximately 50 employees, and
additional supervisors were added (Tr. 58-59). The growth gave rise to
engagement concern over the problem of tardiness (Tr. 59-60).
The 1972 tardiness policy continued up to and after June 15, 1982.
Initially it was disseminated to all employees, and each employee was
made aware of the obligation to report reasons for tardiness (Tr.
64-65). As drafted it was directed primarily to all persons who were
chronically late and not just those who were merely a few minutes late.
All situations were considered, although it was not the main thrust of
the policy to compel employees merely a few minutes late to report and
explain the reasons for tardiness to their supervisors (Tr. 68, 71).
Nevertheless, the policy did not differentiate between brief periods of
tardiness and long periods of tardiness, but imposed the duty to report
in all cases (Tr. 71). It was expected that those reporting only a few
minutes late for work would report to their supervisors in the same
manner as any other case of tardiness, and they were reminded to report
if they failed to do so (Tr. 68). Enforcement of the policy was reposed
in District Office supervisors who exercised discretion as to whether
administrative leave should be authorized (Tr. 68-70).
Implementation of the policy was the subject of management meetings
at least twice in 1977 (Tr. 78-80). It was the subject of employee
orientation sessions from October of 1972 until at least December of
1981 (Tr. 76-77, 82, 90-91). It was made the subject of employee staff
meetings periodically after October of 1972 (Tr. 83-84, 86-87, 92).
Specific illustrations of policy application over the years were
evidenced, including situations involving very brief periods of
tardiness of one or two minutes (Tr. 85-86, 92-93, 94-95). The record
disclosed substantial diligence in the enforcement of the policy (Tr.
90).
Through witnesses called by counsel representing the General Counsel
an effort was made to show that the June 15, 1982 memorandum to the
staff resulted in a reporting requirement in cases of tardiness of just
a few minutes duration, and further that it was, prior to June 15, 1982,
the practice of District Office management to overlook such a
requirement.
However, the record disclosed very little or no probative evidence of
specific instances wherein supervisory employees established a pattern
of acquiescence in such a practice. Mr. Weiss acknowledged that he was
not really in a position to know generally how supervisors responded to
brief periods of tardiness (Tr. 127-129). If he did in fact observe
situations where employees failed to report after brief periods of
tardiness, there was no proof adduced to show that the instances of
tardiness were observed and condoned by management (Tr. 17, 129). In
this area of interest Mr. Weiss stated he was not familiar with the 1972
tardiness policy in the Amherst District Office (Tr. 26). However, he
later recalled knowing of a policy on tardiness (Tr. 126), and he
recalled discussing the tardiness policy with management (Tr. 123-124).
Then, while suggesting that management had advised him that management
had condoned a liberal application of the policy, he also contradicted
himself by stating that he had not discussed the tardiness policy
specifically with management (Tr. 124).
Ms. Susan Marando, a second witness called to testify on this issue,
was vague in describing the practice which existed prior to the issuance
on the June 15th memorandum. Her testimony established that she arrived
for work a few minutes late and was not required to report to her
supervisor (Tr. 38-39); however, there was no evidence of condonation
of the practice. Her testimony to the affect that she was not aware of
the tardiness policy, and that she was not provided with an orientation
on the subject was discredited in part by her familiarity with the
requirement in situations wherein periods of tardiness amounted to "a
half an hour, 45 minutes, of 15 minutes (Tr. 39)." She acknowledged that
in these situations, employees recognized an obligation to report.
Mr. Alan Maren, a field representative with experience in the Amherst
District Office since 1958, testified that he always made special
arrangements in advance of his periods of tardiness, that supervisors
had not spoken to him about tardiness; and that he had not been
counseled or disciplined (Tr. 45). This testimony discloses no
indication of supervisory approval of the practice claimed. His
testimony was consistent with a pattern of employee punctuality and/or a
failure of management to observe policy infractions.
Ms. Elizabeth Gullia testified that prior to the June 15, 1982
memorandum she occasionally did not report to her supervisor when she
was a few minutes late for work (Tr. 50). However, the record reflects
no indication of supervisory acquiescence, and she could not otherwise
recall whether her supervisor spoke to her on these occasions (Tr. 50,
54-55).
In an effort to establish the existence of the practice claimed, Mr.
Robert Mauger, President of Local 3342, was called to the witness stand
on rebuttal. He testified that Mr. Robert Phillips, former District
Manager in the Amherst District Office, and Mr. Edward Driscoll,
Assistant District Manager, approved the practice (Tr. 121). However,
this version was not supported by Mr. Driscoll's testimony; and it was
otherwise effectively contradicted by Respondent's witnesses. Moreover,
Mr. Mauger acknowledged that Mr. Driscoll was especially concerned with
tardiness at the time of revision and reissuance of the tardiness policy
in 1972, and that he wished to put that policy into effect (Tr.
120-121). Again, Mr. Mauger related that there were instances involving
short periods of tardiness where employees went directly to work without
being questioned; however, the evidence reflects no showing of
supervisory awareness or approval of the practice claimed (Tr. 122-123).
Under the provisions of Section 2423.18 of the Regulations, 5 C.F.R.
2423.18, the General Counsel bears the burden of proving the allegations
of an unfair labor practice complaint by a preponderance of the
evidence. An examination of the record discloses that this burden of
proof was not met in this case. In order to constitute the
establishment by practice of a term and condition of employment the
practice must be consistently exercised for an extended period of time
and followed by both parties, or followed by one party and not
challenged by the other over a substantially long duration. Social
Security Administration, Mid-America Service Center, Kansas City,
Missouri, 9 FLRA No. 33 (1982), 9 FLRA 229; General Services
Administration, 9 FLRA No. 32 (1982), 9 FLRA 213; Department of
Defense, Department of the Navy, Polaris Missile Facility Atlantic,
Charleston, South Carolina, 6 FLRA No. 67 (1981), 6 FLRA 372;
Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 6
FLRA No. 40 (1981), 6 FLRA 240; U.S. Nuclear Regulatory Commission, 6
FLRA No. 9 (1981), 6 FLRA 18; Department of the Treasury, Internal
Revenue Service, Cleveland, Ohio, 3 FLRA No. 106 (1980), 3 FLRA 656.
Here there was no showing by a preponderance of the evidence that the
practice alleged, that of allowing employees to report for work directly
after very brief periods of tardiness without reporting to their
supervisors, was followed by the parties for an extended period of time,
or that it was followed by bargaining unit employees, and not challenged
by Amherst District Office management. A mere showing that some
employees did not conform to the District Office tardiness policy,
without more, would not be a sufficient basis on which to base a finding
that such a practice was followed by the parties. Department of the
Treasury, Internal Revenue Service, Cleveland, Ohio (1981), supra; U.S.
Nuclear Regulatory Commission, supra; Department of the Treasury,
Internal Revenue Service, Cleveland, Ohio (1980), supra. It cannot be
contended that a reasonable person would have viewed instances of
non-compliance with the office policy as reflecting the existence of a
past practice.
In this case the facts disclose that over the years involved, the
Respondent consistently endeavored to reaffirm and implement the
tardiness policy revised and reissued in October 1972. The June 15,
1982 memorandum to the staff was merely the most recent reiteration of
this policy. The reaffirmation of an existing policy is not a change in
the conditions of employment. Social Security Administration,
Mid-America Service Center, Kansas City, Missouri, supra; Department of
the Treasury, Internal Revenue Service, Cleveland, Ohio (1981), supra;
Department of the Treasury, Internal Revenue Service, Cleveland, Ohio,
(1980), supra; U.S. Nuclear Regulatory Commission, supra. /11/
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2423.29(c).
IT IS HEREBY ORDERED, that the complaint in Case No. 1-CA-20303, be,
and it hereby is, dismissed.
/1/ Despite allegations concerning the duty to notify the Charging
Party and bargain with the Charging Party, the record reflects that the
American Federation of Government Employees, AFL-CIO, as distinct from
the Charging Party, was the exclusive bargaining representative of
bargaining unit employees in the Amherst District Office during
pertinent periods involved in this case (Tr. 97, 143-145, Complaint and
Answer Paragraph 5(b)).
/2/ Under authority provided in Section 2423.19(r) of the
Regulations, 5 C.F.R. 2423.19(r), the following corrections are made in
the hearing transcript: (TABLE OMITTED)
/3/ Prior to Mr. McGurn's arrival on the scene as District Manager,
others who preceded Mr. McGurn in authority also considered and
abandoned a proposal to institute a "sign-in sheet" in the Amherst
District Office (Tr. 59-60).
/4/ Mr. McGurn's testimony is credited on this issue. Mr. Weiss
testified that the meeting occurred just after lunch, however, his
testimony was not definite on this point (Tr. 12, 18), and, as
hereinafter noted, was otherwise vague concerning elements of what
occurred during the meeting.
/5/ Mr. Weiss was vague about whether or not he read the draft
memorandum. However, he admitted that Mr. McGurn offered him something
to read, and that he "glanced" at what was offered but did not read the
document (Tr. 20). However, at a later point he admitted that he
interposed objections to posting a copy of the memorandum, and thus
clearly implied that he was aware of the content of the document
proposed (Tr. 21-22). He also indicated that he was in clear
disagreement with the content of the memorandum (Tr. 18-20). On the
basis of the record developed it is concluded that Mr. Weiss was fully
aware of the content of the draft memorandum.
/6/ Mr. Weiss' testimony indicated that he disagreed with Mr. McGurn
concerning the substance of the policy (Tr. 18-19); however, it is
clear from his testimony as a whole that he merely questioned the
methodology of disseminating details of the policy to staff members. It
is also noted that his testimony was ambiguous on this point in that he
stated that he claimed that he disagreed with the substance of the
policy, while at the same time asserting that he did not read the draft
memorandum (Tr. 18-20).
/7/ Mr. Weiss denied suggesting these alternatives; however, his
testimony is not credited on this issue. He acknowledged that he only
disagreed with the proposed plan to inform each employee individually,
and that his objection was only partial in nature when it came to the
method to be used to communicate the tardiness policy to employees (Tr.
13). He also admitted that he thought his "recommendations" were the
most advisable (Tr. 23). On this last point he stated, "I was trying to
offer him alternatives to what he (McGurn) had suggested. . . . " (Tr.
22).
/8/ Mr. Weiss endeavored to establish that he did not perceive the
discussion as being over; however, the record is clear that Mr. McGurn
informed Mr. Weiss that the memorandum would issue immediately. This
version is not inconsistent with Mr. Weiss' version of what was said by
Mr. McGurn; and insofar as conflict existed on this factual issue, Mr.
McGurn's testimony was credited in light of an evaluation of all of the
testimony relating to the subject.
/9/ It is noted that the June 15th memorandum is consistent with
duties outlined in the October 1972 Office Policy. Both require
employees to report promptly to their supervisors when tardy, so that
supervisors may make determinations concerning the question of whether
tardiness should be excused.
/10/ The record disclosed that even in these circumstances there was
a need for tardy employees to report to their supervisors so that
supervisors would then be in a position to exercise their authority to
accept or reject the reasons presented in accordance with the tardiness
policy (Tr. 73).
/11/ In view of the foregoing, it is unnecessary to decide whether
the Respondent provided the exclusive bargaining representative an
opportunity to bargain concerning the June 15th memorandum; however,
even assuming such an obligation in this case, it is noted that the
record clearly indicates that Mr. Weiss did not request bargaining when
apprised of the matter by Mr. McGurn on June 15th. On this issue, the
record reflects agreement concerning the substance of the memorandum,
and reluctant acquiescence concerning the method Mr. McGurn selected to
disseminate copies of the memorandum to the Amherst District Office
staff.
Antonio Rodriguez, Esquire, For the Respondent
Gerard M. Greene, Esquire, For the General Counsel
Mr. Robert C. Mauger, For the Charging Party
25 FLRA-ALJ; Case No. 9-CA-20241 December 28, 1982
DEFENSE LOGISTICS AGENCY, DEFENSE DEPOT TRACY, TRACY, CALIFORNIA,
Respondent, and LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL
1276, AFL-CIO, Charging Party
Before: Isabelle R. Cappello, Administrative Law Judge
This is a proceeding brought under Title VII of the Civil Service
Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et
seq. (Supp. V 1981), commonly known as the Federal Service
Labor-Management Relations Statute and hereinafter referred to as the
"Statute," and the rules and regulations promulgated thereunder and
published at 5 CFR 2400 et seq.
Pursuant to a charge filed on April 2, 1982 and amended on May 28,
1982, the Acting Regional Director, Region 9, of the Federal Labor
Relations Authority (hereinafter, the "Authority"), investigated
allegations of unfair labor practices against Respondent and, on July 7,
1982, filed the complaint initiating this proceeding.
The complaint alleges violations of 5 U.S.C. 7716(a)(1), (5), and
(8), /1/ all arising from the initiation by Respondent of a Quality
Circle Program (hereinafter also referred to as the "QCP").
The General Counsel argues that because the Quality Circle Program
interferes with the exclusive representative's statutory entitlement to
act for, and negotiate on behalf of bargaining-unit employees,
Respondent was precluded from implementing such a program unless and
until the Charging Party, Laborers' International Union, Local 1276,
AFL-CIO, (hereinafter, "Union" or "liu") requested to bargain on it, and
unless the parties reached agreement thereon.
In other words, it is the General Counsel's contention that the QCP
constituted a permissive subject of bargaining about which the Union
could elect or decline to negotiate and that initiation of it, in the
absence of an agreement with the Union, constituted a violation of 5
U.S.C. 7116(a)(1) and (5).
In the alternative, it is the contention of the General Counsel that
the QCP constituted a change in working conditions, about which the
Union was entitled to prior notice and the opportunity to bargain to the
extent consonant with law and regulation, and that since Respondent
failed to accord the Union appropriate statutory notice and the
opportunity to bargain, Respondent violated 5 U.S.C. 7116(a)(1) and (5).
Moreover, it is the position of the General Counsel that
quality-circle meetings, held pursuant to the QCP, constituted "formal
discussion(s)," within the meeting of 5 U.S.C. 7114(a)(2)(A); and since
Respondent failed to give the Union prior notice or the opportunity to
be represented at such meetings, Respondent violated 5 U.S.C.
7116(a)(1), (5) and (8) by its holding of such discussions.
Finally, it is the contention of the General Counsel that the weekly
quality-circle meetings constitute direct solicitation from unit
employees of grievances and problems related to working conditions, with
the express intent that such problems be resolved to the benefit of
employees, and as such, amount to a bypass of the Union, in violation of
5 U.S.C. 7116(a)(1) and (5).
Respondent maintains that it instituted the QCP pursuant to the
statutory right of management, in 5 U.S.C. 7106(a)(2)(B), to "assign
work" and "to determine the personnel by which agency operations are
conducted," subject only to 5 U.S.C. 7106(b)(2) and (3), which provide
for what is commonly known as impact-and-implementation bargaining. /2/
Respondent contends that it give the Union timely notice of the QCP, but
that the Union sat on its rights to negotiate the impact and
implementation of the QCP.
Respondent also contends that meetings with employees, under its QCP,
do not constitute attempts to bypass the Union's exclusive right to
represent these employees.
In its answer to the complaint, Respondent denied all allegations
concerning quality circle meetings being "formal discussions." However,
it has not argued the point in either its brief, or in its opening
statement at the hearing. See pages 26-27 of the transcript.
At the hearing held on August 17, 1982, in San Francisco, California,
the parties adduced evidence and examines witnesses. With the agreement
of all parties, one witness, Dean Boswell, whose health prevented his
attendance at the August 17 hearing, was examined by deposition, taken
on September 14, 1982, at Tracy, California. The deposition of Dean
Boswell is received into evidence. /3/
Respondent has made no motion to reopen the hearing to receive
additional testimony; and it was accorded the right to do so. See Tr.
64-66 and 178.
Also made a part of this record are three pages of training materials
which were not contained in General Counsel's Exhibit Number 15 and
which were discussed by a witness at the hearing. See Tr. 125-129.
These three pages, along with Respondent's letter of August 19, 1982,
forwarding them to this office, are marked as Respondent's Exhibit 1,
and received into evidence.
Based upon the record made in this proceeding, and the briefs
submitted on behalf of Respondent and dated October 29, 1982, and on
behalf of the General Counsel and dated November 5, 1982, I make the
following findings of fact and conclusions of law, and recommend the
entry of the following order.
1. It is admitted that, within the meaning of 5 U.S.C. 7103(a)(3)
and (4), the Respondent is an agency, and the Union is a labor
organization and the exclusive representative of non-supervisory,
wage-grade employees of Respondent in various directorates, including
those performing warehousing functions in the Storage and Transportation
Directorate. See GC 1(e), paragraphs 2, 3, and 4 and, GC 1(f), and (5)
CFR 2423.13(b)(2).
2. The following employees of Respondent testified for the General
Counsel:
(a) Marlin Tolbert has been both the business manager and
secretary-treasurer of the Union for 17 years. He is apparently the
Union official responsible for collective bargaining. See GC 3 p. 73.
(b) William Arnolfo is a warehouse worker and has held the position
of chief shop steward for the Union since 1979.
(c) Lovic Finley has been a safety representative for the Union since
June, 1981.
(d) Alfred Portillo has worked for Respondent for about 15 years and
is one of the employees in the bargaining unit represented by the Union.
(e) Martha Stewart has been an employee of Respondent for 5 1/2
years, a packer for about 10 months, and before that, a supply clerk.
As a wage-grade employee, she is in the bargaining unit represented by
the Union.
3. The following employees testified for Respondent:
(a) Jean Dowhower has been employed by Respondent for 15 years.
During the time here relevant she has been a productivity specialist
and, since 1978, has served on Respondent's Productivity Council,
(hereinafter also referred to as the "Council"). She is the management
official who has been charged with the responsibility for studying the
concept of quality circles, training and orientating employees in their
use, and implementing them at Respondent, on a test basis. She has
taken a study course in labor relations, but is not responsible for the
collective bargaining process at Respondent's facilities.
(b) Dean Boswell is Respondent's Labor Relations Officer. He has
worked in Respondent's personnel office since 1977. He serves as an
advisor to the Council. Much of the materials presented to quality
circle team members has been cleared with him prior to its
dissemination.
The background and nature of the Quality Circle Program
4. The first indication of anyone's interest in the quality circle
concept came through the "learner organizers," a group of employees from
union bargaining districts within the Storage and Transportation
Directorate. Learner organizers were formed by joint agreement of the
Unions representing employees of Respondent. The learner organizers
were a "sub-committee" of the Productivity Council (TR 141). Learners
organizers worked on a "Depot-wide" basis (TR 142). The addressed two
problems, safety and morale, and made recommendations to Respondent
concerning them. This group "just went off in the sunset" when the
Quality Circle Program began (TR 143).
5. The Productivity Council is a joint labor-management group whose
purpose is "the improvement of employee worklife and Depot productivity
(GC 4, par. II). It has been an existence since June 21, 1977. Four
unions, including LIU, are signatories to the agreement setting up the
Council. The Council serves as "an analytical investigative committee
for the Commander, who retains discretionary powers for implementation
of Council recommendations." (GC 4, R II). On its "agenda" are
"strengthening the morale of the work force; improving communications
between management and employees; conserving manpower, materials, and
supplies; improving quality of workmanship and services; eliminating
waste; promoting education and training; correcting conditions making
for grievances and misunderstandings; safeguarding health; preventing
hazards to life and property; improving working conditions; and
encouraging good public relations" (GC 4, R III). Reports of Council
activities are distributed "to all interested parties." (GC 4, par.
III).
6. The Council is not "a bargaining table," and does not "replace,
supplement or augment the established bargaining relationship between
management and the exclusive bargaining representatives who are party to
th(e) agreement" (GC 4, R III).
7. Charter members of the Council were eight in number-- the four
presidents of the signatory unions and four management officials
representing four directorates. The Council can be terminated "after
the request by a majority of the charter members" (GC 4, par. V).
8. In May 1980, the four union signatories to the agreement setting
up the Council informed Respondent's Chief of Personnel, by letter, that
they "no longer wish(ed) to participate in the Depot Productivity
Council effective immediately" (GC 5 and see GC 7, for the date of the
letter). By July 3, 1981, the unions, other than LIU, had apparently
again become active participants on the Council. LIU has not returned
as a participant on the Council and explicitly so reminded Respondent in
a letter dated August 27, 1981. See GC 7. Mr. Boswell responded to the
August 27 letter by urging LIU to return to the Council, and reminding
Mr. Tolbert that the agreement setting up the Council provides that the
Council cannot be terminated "without at least five charter member's
signatures" (GC 8 p. 1). Mr. Boswell acknowledged, however, that no one
could force LIU "to participate in a meaningful way" (GC 8 p. 1). LIU
received some minutes of the Council meetings shortly after its May 1980
withdrawal. See TR 56 and D 32-33. Some contained "references to
Quality Circles" (D 33) and "outlined discussions that were held at the
Productivity Council on whether or not we would have a Quality Circle
program, what the Quality Circle program would involve, who would
participate, what were the parameters of discussions that would take
place, and projects that would be looked at by the Quality Circle" (D
33-34).
9. The Quality Circle Program is an "aftermath of the learner
organizers" (TR 115). The Productivity Council assigned Jean Dowhower
to the study of this "new management philosophy" (TR 117). She studied
it for over a year, beginning "somewhere between July and October 1980"
(TR 117) and ending in November 1981. Twenty-four Government agencies,
including the Defense Logistics Agency spent several hundreds of
thousands of dollars to train their employees in the operation of
quality circles. The Productivity Council finally agreed to "a test
program which would include not more than 15 circles" (TR 119). Six of
the circles were to be in the bargaining area represented by LIU. The
program was still in a test stage, at the time of the hearing.
10. "Quality circles are groups of people working in the same work
area generally under the same supervision addressing problems of the
quality of work (life) and the productivity within the particular work
area" (TR 122 and also TR 127).
Volunteers for the circles received eight to twelve hours of training
for the sole purpose of learning how "to brainstorm, (how to do) cause
and effect analysis, how to do charter, how to (make) gra(ph)s, how to
do research, how to collect data" (TR 122). Circle members are
encouraged to talk to other employees in their unit, and "solicit their
problems" (TR 162).
11. There are supposed to be "limits" on the scope of discussion in
the quality circles (TR 125) and this information is supposed to be
included "in all training" (TR 127). Theoretically, the following are
not to be discussed: EEO and personnel actions, discipline, "anything
having to do with dealing with the bargaining unit of any of the unions"
(TR 127), benefits and compensation, grievances, employment policies,
personalities, and anything outside of circle's responsibilities. See R
1 p. 1. Ms. Dowhower is fully in charge of Quality Circle Program. She
claims that she would seek expert advice as to what was an appropriate
subject for discussion at a quality circle, "(i)f she did not know" (TR
177). An employee who attended a Dowhower briefing on quality circles
testified that Ms. Dowhower "gave absolutely no limitation as to what
could be considered" (TR 85). Another employee who sits on a quality
circle, testified that there were not limits "as long as (the problems)
pertain to our job" (TR 96). Another employee who attended a Dowhower
training course on quality circles testified that she could not
"remember" any limits being placed on the kinds of problems that can be
discussed at quality circles (TR 111). Ms. Dowhower was an obviously
enthusiastic proponent of quality circles, and would probably not stress
any limitations on them. Accordingly, I find that employees are not
well trained in the matter of what, if any, limits are placed on the
problems that can be addressed in quality circles.
12. Matters which have actually been discussed and accomplished in
quality circles, in the bargaining unit represented by LIU, have
included: relocating a saw; ordering 49 safety ladders; putting in a
turner; reducing turn-around time on repair of tools; changing the
distribution of supplies; coming up with a different conveyor system;
putting in a rack to hold up a chain; and devising another rack that
eliminated bumping into a desk.
13. According to Ms. Dowhower, "anything that will improve the
quality of work life can be addressed in a quality circle" (TR 162).
She testified that the following are examples of what can be addressed:
health and safety problems of employees; employee morale addressed to a
specific problem; equal distribution of work among employees;
arrangement of furniture to make employees happy; additional training,
day-care centers; special protective clothing; flex-time programs;
studies of accidents; staggering of lunch periods; lack of food
availability; and unsanitary working conditions.
14. "Generally" it was "required that a supervisor attend" the
quality circle meetings (TR 120). But because the program is a "test"
one, some circles do not have supervisors on them (TR 121). Because the
circles operate on "a one man, one vote concept," it "makes no
difference whether the man be a supervisor or a member." (TR 121). When
a circle operates without a supervisor-member, however, the supervisor
comes in for the last 1 minutes and "says, okay what did we do today?"
(TR. 123). The circle makes a presentation to the supervisor and, if he
has the authority "to sign off" on it, he does so (TR 123). Otherwise,
the circle makes a "formal presentation to each level . . . of upward
supervision" (TR 124).
15. In response to a leading question by counsel for Respondent
("Was the quality circle program to be considered part of an employee's
assigned work?"), Ms. Dowhower replied: "Absolutely. It's a way of
assigning work." (TR 174).
16. On January 5 or 6, 1982, Ms. Dowhower called Mr. Tolbert to tell
him that she wanted "to brief (his) people" on quality circles (TR 132).
On January 8 the meeting was held, with LIU officials Arnolfo and Jose
in attendance. Colonel Stevenson, the Deputy Commander of the Tracy
Depot, also attended. Ms. Dowhower showed them a Norfolk Naval Shipyard
Management overview film on quality circles. She told them that quality
circles were "in the planning stages at Tracy" (TR 76) and "we would be
putting in at least six circles." She explained "what the concept was,
why we wanted to do this" (TR 119). When the Union officials asked how
it "worked," she showed them some flip charts of all her slides (TR
133). She showed them the training manual. They were given some
references information. She told them that there was "a policy and
procedure in the mail;" but she did not given them a copy because "it
was not staffed" (TR 134). The Union officials were not informed of any
implementation dates. Ms. Dowhower was simply "hoping to get (the
Union's) support," at this meeting (TR 151). She was not attempting to
give the Union notice and an opportunity to bargain. Mr. Tolbert did
not consider the Dowhower briefing as "notice of the quality circles
program" (TR 54) because "the normal procedure of notification to the
Union is either through myself, to Mr. Boswell, or Mr. Boswell to me"
(TR 54-55) and is "in writing, of those proposed changes" (TR 56).
Respondent did not dispute that this was the normal procedure for notice
and, therefore, I credit Mr. Tolbert on this point.)
17. On January 10 or 11, 1982, Mr. Tolbert called Mr. Dowhower about
LIU endorsement of the quality circle concept. He told her that if she
wanted his endorsement he would "have to have my seniority back" (TR
135). The seniority issue was not related to quality circles. Ms.
Dowhower replied that "you know you're not going to get that" (TR 135).
She told him that she was not in labor relations and that "we were not
bargaining" (TR 136). She told him that she was only "trying to get his
support," "as an individual," not as a "(l)abor relations person" (TR
151). Mr. Tolbert asked Ms. Dowhower "to talk to the (C)olonel" about
the seniority matter (TR 136). She agreed and told him that "if there's
any change I will get back to you" (TR 136). There was none. Mr.
Tolbert never heard from, or saw Ms. Dowhower until they met during
February and March 1982 negotiations on a Safety Plan that involved
quality circles.
18. In early February 1982, the question of quality circles was
raised by the Union in negotiations over the Safety Plan. In front of a
negotiator who was assisting the parties, the Union stated that it
wanted to negotiate quality circles. Quality circles were the eleventh
part of a Safety Plan promulgated by Respondent, on January 12, 1981.
The Safety Plan led to an unfair labor practice charge which was settled
in May 1981 by an agreement of Respondent to bargain over it. See GC
12.
19. On March 10, 1982, a written agreement was reached on the Safety
Plan. Part of the agreement was that: "Negotiations of areas contained
in paragraph 11 (concerning the establishment of quality circles) may be
addressed at a later date by either party as may be appropriate under
the Statute and Contract" (GC 12, p. 1, par. 6). Paragraph 11 of the
January 12, 1981 Safety Plan was: "Establish a Quality Circle in
selected work centers with high accident records to get employees
involved in participative management to address Safety concerns" (GC 12,
p. 3).
20. Mr. Boswell testified that the "effect" of the March 10, 1982,
agreement to negotiate quality circles was to say: "Look, any new
changes to our Quality Circle program would be negotiated between the
parties. However the present Quality Circle would remain in existence"
(D 11). No such restriction appears in the written agreement between
the parties. See finding 19, above. The other witnesses who testified
about the agreement, and who were present when it was reached (Marlin
Tolbert, William Arnolfo, Lovic Finley, and Jean Dowhower), made no
mention of such a restriction. At the time of the March 10 agreement,
quality circles were in effect, on a test basis only, and the first one
had only started up on February 25 or 27, 1982. Therefore, Respondent's
interest in protecting those in existence from change would have been
minimal when agreement was reached on the Safety Plan on March 10.
Accordingly, I do not credit the testimony of Mr. Boswell that the March
10 agreement had any limit on the scope of negotiations.
21. On March 16, 1982, the Union submitted a letter to Mr. Boswell
in which a request was made for "bargaining on all items connected with
Quality Circles" (GC 13). In the letter, the Union complained that it
had never received any formal written notice connected with quality
circles, nor any notice of formal meetings which had been and were
continuing to be held with bargaining-unit members. The Union also
stated that it was seeking remedial relief by requesting cessation of
all quality circle endeavors until its statutory rights had been met and
an agreement reached. By March 16, 1982, one and possibly two or three
quality circles had begun to operate in the bargaining unit represented
by LIU. See finding 27, infra.
22. On March 22, 1982, Mr. Boswell replied to the March 16 letter.
He referred to the fact that the Union had chosen not to attend any of
the meetings of the Productivity Council "when the Quality Circles
Program was being discussed" and that it had been "remiss in not
participating in the Council for some time" (GC 14). Mr. Tolbert took
the Union's "lack of participation in the Council to be tacit agreement
with whatever is decided by other participating members" (GC 14). The
letter concluded with an invitation to return to the Council, as the
"appropriate forum" for settling the matter of quality circles (GC 14).
The letter flatly stated that: "Your 16 March 1982 request to negotiate
and so called 'remedial relief' in unacceptable" (GC 14). At no time
since, has Respondent agreed to meet and bargain with LIU concerning any
aspect of its Quality Circle Program.
23. Mr. Boswell testified that before his March 22 letter to Mr.
Tolbert, Mr. Tolbert called him with a request to negotiate quality
circles, and that he, Mr. Tolbert, told him "fine" and to "submit
proposals in accordance with our negotiated agreements" (D 9). This
call allegedly occurred in January 1982. The negotiated agreement gives
the Respondent party 10 days to submit counterproposals to a change
proposed by a moving party, and provides that, if written
counterproposals are not made within 10 days, concurrence is deemed and
the moving party may implement the change. See GC 3, p. 13, par. 4b.
Mr. Boswell testified that this conversation was the last he heard of
the quality circles issue from the Union until the February 1982
negotiations on the Safety Plan. He testified that when the issue came
up during the negotiations, he "reminded" Mr. Tolbert of their January
discussion and told him that the 10-day limit had elapsed (D 11). He
testified that he then told Mr. Tolbert that "we were not willing to go
back and negotiate the Quality Circles and redo everything we had
already done," but that "we would be amenable to negotiating Quality
Circles in the future if it did not mean going back and wiping out our
program as we now knew it" (D 11).
24. The General Counsel argues that Mr. Boswell's account of his
January-February conversation with Mr. Tolbert "simply cannot be
reconciled with Mr. Boswell's March 22, 1982 letter refusing to bargain
and directing Mr. Tolbert to take his quality circle concerns to the
Productivity Council" (GC Br 19 and see finding 22, above). Mr. Boswell
explained, in his deposition, that his failure, in the March 22 letter
(GC 14) to mention the alleged January-February conversations with Mr.
Tolbert was due to the fact "we were trying to stay out of a
confrontation with LIU and trying to get them back to the Productivity
Council" (D 20). This explanation is not convincing. His March 22
letter to LIU was confrontational, not conciliatory in tone. See GC 14.
It is implausible that Mr. Boswell would not have added that LIU had
waived its bargaining rights by its inaction following the January 1982
conversation, had it occurred. Mr. Tolbert did not mention any such
conversation in his testimony. (Since the evidence came out in a
deposition following the hearing, Mr. Tolbert had no opportunity to deny
it.) Since, in January 1982, no quality circles had been activated, and
the union had been given no details as to implementation dates, or the
policy and procedures to be used, it is obvious that Mr. Tolbert would
not have been in a sound position to request negotiations at that time.
Based on the above, I do not credit the testimony of Mr. Boswell, as set
out in finding 23 above.
25. Ms. Dowhower held "orientation" sessions with employees
concerning quality circles (TR 122). The record is confused as to when
they began. Ms. Dowhower at first testified that they were held
"(t)hrough December and part of January," in "82" (TR 120). Later she
testified that they commenced "about the 15th of January" and continued
"(t)hrough early February" (TR 164). Over 800 employees attended some
24 meetings, including bargaining-unit employees represented by the
Union. At these meetings, Ms. Dowhower gave a "sales pitch" concerning
quality circles and solicited volunteers to set on them (TR 120). Of
the over 800 employees, 280 volunteers came forward. At the orientation
meetings, Ms. Dowhower explained the quality-circle concept. The Union
received no notice of the time and place of the meetings. Ms. Dowhower
was the only management official at these meetings. See TR 148.
Attendance was open but not "mandatory" (TR 147).
26. Training sessions on quality circles took place on February 13,
14, or 15, 1982. No notice of them was given to the Union. They lasted
for approximately 12 hours. Employees attended them on work time.
There were the first training sessions on quality circles held at the
Tracy Depot.
27. Originally, the plan was to implement the test program on
quality circles in May 1982. This was speeded up; and the first circle
was held on February 26 or 27, 1982. The first circle in the unit
represented by LIU might have started as early as late February 1982;
with others starting in early March, mid-March, April, and May. One
started in August 1982. They meet weekly, for one hour, and are treated
as work time for members.
28. Mr. Tolbert has received no notice of any quality circle
meetings, does not know how many there are, or how many employees are
involved, and does not know, of his own personal knowledge, the kinds of
problems being raised at them. See TR 70.
A. Respondent could not initiate its Quality Circle Program
unless and until it acceded to the Union's request to negotiate,
and reached final agreement over its content, impact, and
implementation.
It is undisputed that a Quality Circle Program was initiated by
Respondent in early 1982. The Quality Circle Program initiated included
the holding of orientation meetings, on work time, to familiarize and
"sell" employees on the quality circle concept and to solicit employee
volunteers; the holding of hours of training sessions for selected
employee volunteers to learn new problem-solving techniques; and the
commencement of regular, weekly, quality-circle meetings between
employees and supervisors where problems of the work area are aired.
The quality circle members assign priorities to work-area problems;
arrive at solutions to them, and thereafter present these solutions
directly to management representatives for approval. Such a program is
an innovative one, never before in existence at Respondent's facilities.
Because the Quality Circle Program could have a substantial and
adverse impact on the status of the Union as the bargaining agent, and
because such a program intrudes upon the Union's statutory prerogative
to act as the sole and exclusive representative of the unit employees in
bargaining on conditions of employment, /6/ such a program is a
permissive subject of bargaining, /7/ about which the Union can choose
to negotiate at its election.
In NLRB v. Wooster Division of Borg-Warner, 356 U.S. 342, 42 LRRM
2034 (1958), the Supreme Court discussed the issue of permissive
subjects of bargaining. While the parties need not confine their
proposals to statutory subjects of bargaining, neither party is required
to bargain about a permissive subject; and the failure to do so does
not constitute bad-faith bargaining. Thus, the refusal to bargain with
respect to a permissive subject is not unlawful. Moreover, no waiver of
right to later claim an issue is permissive results from engaging in
bargaining on that topic in the first substance. Either the employer or
the union may bargain on a permissive subject and then abandon it short
of an agreement, without violating the law. Hence, a party cannot be
forced to impasse on a permissive subject of bargaining. See Kit Mfg.
Co., 150 NLRB 662, 58 LRRM 1140 (1964), den. pet. for rev. 365 F.2d 829
(1966), holding, inter alia, that the use of a union label on a
company's product was a permissive subject of bargaining. See also,
American Federation of Government Employees, AFL-CIO, and U.S. Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 4 FLRA No. 39 (1980) wherein the Authority held that it is within
the discretion of both agency management and labor organizations holding
exclusive recognition to designate their respective representatives when
fulfilling their responsibilities under the Statute. In this regard,
the Authority stated that proposals which would infringe on the agency's
prerogative to designate its own representatives would be outside the
required scope of bargaining and the refusal to bargain thereon cannot
be found to be a violation.
Similarly, proposals which infringe on the Union's right to designate
its representatives, and to act for or negotiate on behalf of the unit
employees, would also be outside the required scope of bargaining.
Both in the private and public sector, the apparent conflict between
the union's role as the designated representative, and work-group
committees created outside the bargaining relationship, has been
explored and acknowledged.
In Emporium Capwell Co. v. Western Addition Community Organization,
420 U.S. 50, 88 LRRM 2660 (1975), the U.S. Supreme Court underscored the
status of the exclusive representative in terms of its sole entitlement
to bargain on behalf of, and represent the bargaining unit, under the
National Labor Relations Act. In that case, a group of minority
employees, dissatisfied with the manner in which their union was
handling a grievance concerning racial discrimination, formed a
committee and picketed their employer. After warning the employees to
cease, to no avail, the employer terminated them. Thereafter, a local
civil rights group filed charges against the employer with the National
Labor Relations Board, in which the group contended that the employee's
right to engage in protected activity had been violated.
The Supreme Court found that, although the national labor policy
accords the highest priority to nondiscriminatory employment practices,
it would not protect conduct by the employees which amounted to a bypass
of the exclusive representative. The Court noted that the National
Labor Relations Act recognizes the principle of exclusive recognition,
and in establishing such majority rule, Congress sought to secure to all
members of the collective bargaining unit the benefit of their
collective strength, in full awareness that the superior strength of
some individuals or groups might be subordinated to the majority
interest.
The Supreme Court also found that separate bargaining with the
minority contingent was not essential to eliminate discriminatory
employment practices, which would be addressed by the collective
bargaining agreement, and the grievance procedures contained therein.
Respondent encourages, through the Quality Circle Program, precisely
what the Court found objectionable in Emporium-- bypass bargaining.
Irrespective of whether the process if initiated by employees or
management, the resultant undermining of the principle of exclusivity is
just as real. In the instant case, as in Emporium, the role of the
exclusive representative (bargaining with the employer and trying to
resolve work-related grievances) must be respected, notwithstanding the
possibility that some employees will be dissatisfied with the ultimate
resolution of their problems, or the time required to resolve such
problems.
Insofar as the Quality Circle Program addresses issues relating to the
quality of worklife, those issues can be addressed through the
appropriate channels of the parties' negotiated grievance procedure and
at the bargaining table; and Respondent cannot lawfully encourage
reliance on other channels.
It is evident that if employees can get quick responses from
management on issues raised in quality circles, they will naturally
channel their work-related concerns to the quality circles, rather than
through the resources provided in the collective bargaining agreement.
Moreover, if management ultimately resists resolving a problem in the
manner proposed by a quality circle, the employees therein might be
discouraged from pursuing the problem through other means, such as
filing a grievance. Finally, the Quality Circle Program herein offers
flexibility both in terms of direct access to management officials and
resources (including financial resources and time-on-the-clock) not
provided for or contemplated by the collective bargaining agreement.
Protection of the exclusivity principle has a long history in the
public sector, as well. Under Executive Order 11491, as amended, /8/
the predecessor to this Statute, the Assistant Secretary of Labor
addressed the nature of the Union's role as exclusive representative.
See Veterans Administration Hospital, Muskogee, Oklahoma, A/SLMR No.
301, 3 A/SLMR 491 (1973). In that case the Assistant Secretary found
that management had violated the Executive Order by its establishment of
a Youth Advisory Committee ("YAC"), employee members of which were
allowed to deal directly with management on a variety of issues properly
the subject of negotiation with the union designated as the exclusive
representative. The Assistant Secretary stated:
(O)nce a bargaining representative has been designated by a
majority of the employees in an appropriate unit, the obligation
of the agency or activity to deal with such representative
concerning matters affecting working conditions of all employees
within the unit becomes exclusive and carries with it a
correlative duty not to treat with others. Moreover, to disregard
the exclusive representative selected by a majority of employees
and attempt to negotiate or deal with certain employees
individually concerning grievances, personnel policies and
practices, or other matters affecting the general working
conditions of employees in the unit was found (in a cited case) to
violate the essential principles of exclusive recognition and to
undermine the exclusive representative's status under the Order.
In the instant case, the Respondent, in effect, dealt directly
with unit employee representatives of the YAC in the six-month
period preceding the filing of the pre-complaint charge on such
matters as employee safety, fire protection, training, utilization
of manpower, finance, hiring, the transfer of personnel within the
facility and employee leave. Clearly, this was inconsistent with
Respondent's obligation to deal with the employee's exclusive
representative concerning personnel policies and practices or
other matters affecting the general working conditions of unit
employees. In my view, this disregard of the exclusive
representative with respect to the above-noted matters was in
derogation of the exclusive representative's rights, established
under the Order, and thereby, constituted a failure to consult,
confer or negotiate within the meaning of Section 19(a)(6) of the
Order.
Moreover, I find that such conduct also interfered with the
Section 1(a) rights of employees and, therefore, violated Section
19(a)(1) of the Order. A/SLMR No. 42, supra, at 493. /9/
Hence, the Assistant Secretary took a strong position against the
usurpation of the exclusive representative's prerogative to police the
concerns of the bargaining unit. The Quality Circle Program in the
instant case, like the YAC committee in the Veterans Administration
case, unlawfully intrudes into the Union's province to solicit and
resolve employee complaints, and to otherwise deal with Respondent
concerning personnel policies, practices, and matters affecting general
working conditions.
From the foregoing case law, it is concluded that unless and until
the Union requested to bargain on the Quality Circle Program, and the
parties reached final agreement thereon, Respondent was precluded from
implementing such a program.
In the instant case, the Union did in fact request to bargain on
Respondent's Quality Circle Program, while at the same time demanding
that Respondent cease and desist such program until it had fulfilled its
statutory bargaining obligations. See finding 21, supra. Respondent
flatly refused to bargain, instead directing the Union to take any
concerns it had to the Productivity Council. See finding 22, supra.
This is the body which, by the terms establishing it, was expressly
prohibited from acting as "a bargaining table" or to "replace,
supplement or augment the established bargaining relationship between
management and the exclusive bargaining representative. . . . " See
finding 6, supra. Therefore, no discussions that occurred at the
Council were intended to replace express notice by Respondent to the
Union concerning proposed changes in working conditions. Based on the
foregoing, it is clear that Respondent's response to the Union's request
to bargain was inappropriate, not only in terms of its obligations under
the Statute, but also in terms of the language of the agreement
establishing the Productivity Council.
Respondent argues that quality circle meetings do not constitute an
attempt to bypass the Union's exclusive right to representation, and
characterizes them as being "simply designed to allow small groups of
7-10 people, who do the same general work to meet together for one hour
per week to analyze and solve problems that they face in their
particular work situation" (GC Br 4). The fact is that the circles can
discuss and resolve, "with management support," "(a)ny work-related
problem," within its area. See R 1, p. 2.
Already, in their short existence, the circles have successfully
resolved some safety matters without the aid of LIU, even though safety
subjects are expressly made a subject appropriate for consultation or
negotiation between LIU and Respondent, by Article I, Section 1 of their
collective bargaining agreement. See GC 3, p. 2 and finding 12, supra.
Potentially, the area of overlap between the jurisdiction of the circles
and that of the agreement is considerable. See finding 13, supra and
Article I of GC 3, p. 2.
Respondent's reliance on Department of the Navy, Naval Air Station,
Fallon, Nevada, A/SLMR No. 432 (1974), 3 FLRC 698 (1975), at page 4 of
its brief, is misplaced. In that case it was held that the
communication involved (a letter from the agency to the union's
president which was posted on a bulletin board) was, inter alia, "an
attempt to bargain directly with employees, and was in derogation of the
union's status as "the only formal representative who speaks for all
unit employees" (3 FLRC at 700 and 701). The posting was held to be an
unfair labor practice. The quality circles here are likewise an attempt
to bargain directly with employees.
The argument of Respondent, that operation of quality circles is an
exercise of a management right "to assign work" and "to determine the
personnel by which agency operations are conducted" (R BR 2), is
rejected. The employees volunteered to sit on the quality circles and
are simply allowed time away from their regularly assigned work to
engage in this labor-management type of activity. There is no evidence
that quality circle membership is included in job descriptions, or that
employees are evaluated for performance on the circles, both associated
with "work," in the Federal sector.
It is noteworthy that, in setting up other groups to deal with the
quality of worklife (the "learner-organizers" one, and the Productivity
Council), Respondent proceeded only after reaching agreement with the
unions whose bargaining units were affected. See findings 4 and 5,
supra. It should have followed this procedure with the quality circles
as well.
Accordingly, I conclude that Respondent violated 5 U.S.C. 7116(a) (1)
and (5), when it bypassed LIU, the exclusive representative of certain
of its employees, and set up a small group of these employees to resolve
issues which were subject to the contractual and statutory collective
bargaining process, and over which Respondent must bargain exclusively
with LIU.
B. A quality circle meeting constitutes a "formal discussion"
within the meaning of 5 U.S.C. 7114(a)(2)(A).
Section 7114(a)(2)(A) of the Statute provides that the exclusive
representative shall be given the opportunity to be represented at a
"formal discussion" between representatives of an agency and employees
concerning any grievance, personnel policies, or matters affecting
general working conditions. In two companion cases, Department of
Health and Human Services, Social Security Administration, Bureau of
Field Operations, San Francisco, California, 10 FLRA No. 24, 10 FLRA 115
and 10 FLRA No. 25, 10 FLRA 120 (1982), the Authority recently
articulated the factors to be considered in determining whether or not a
"formal" discussion had occurred. They include:
(1) whether the individual who held the discussions is merely a
first-level supervisor or is higher in the management hierarchy;
(2) whether any other management representatives attended; (3)
where the individual meetings took place (i.e., in the
supervisor's office, at each employee's desk, or elsewhere); (4)
how long the meetings lasted; (5) how the meetings were called
(i.e., with formal advance written notice or more spontaneously
and informally); (6) whether a formal agenda was established for
the meetings; (7) whether each employee's attendance was
mandatory; (and); (8) the manner in which the meetings were
conducted (i.e., whether the employee's identity and comments were
noted or transcribed).
(10 FLRA at 118, and see also 10 FLRA at 124.)
Respondent's quality circles bear many indicia of formality. Both
first-level supervisors and higher levels of management participate in
the quality circle meetings, in that first-line supervisors respond to
the quality-circle issues to the extent and degree of their authority
and, if a problem cannot be resolved at the first level, higher-level
management is brought into the process, to hear the formal presentation
of the quality-circle members, and to approve or disapprove the
recommendations of the circle. The meetings are held on a regularly
scheduled basis, for one hour a week, on duty time, presumably in an
area near to the employees' workplace. The quality circle formulates
its own agenda, by setting priorities for the problems raised at the
meetings, and then following that agenda from week to week. Although
employees are not mandatorily required to attend quality-circle
meetings, a mandatory aspect of quality circles is the involvement of
employees; and, once an employee volunteers and receives training, that
employee is identified and may feel compelled to attend quality-circle
meetings. A written presentation is produced by the circle, if the
resolution of the problem recommended is not adopted at the first level
of management.
The "discussion" at the circles deals with changes in working
conditions. A give-and-take exchange occurs between the employee
members of the circle and management when the first-line supervisor asks
"what did we do today," and either signs off on the "presentation" made
by the circle, or passes it to successively higher levels of management,
to whom the circle makes a "formal presentation." See finding 14, above.
The fact that a supervisor may sit on some circles, as a member with
only one vote, in resolving the problem under discussion, does not
basically change the character of those circle meetings as ones where
employees ask management for changes which management may, or may not
grant.
Thus, it is concluded that the quality circles are "formal
discussion(s)," within the meaning of 5 U.S.C. 7114(a)(2)(A), of which
Respondent was required to give the Union notice and an opportunity to
be present. By its failure to accord the Union such notice and
opportunity, Respondent violated 5 U.S.C. 7116(a)(8) and, also
interfered with the rights of employees to be represented by their
union, in violation of 5 U.S.C. 7116(a)(1).
C. A status quo ante remedy is appropriate in the circumstances
of this case.
In Federal Correctional Institute, 8 FLRA No. 111, 8 FLRA 604 (1982)
the Authority discussed when a status quo ante remedy would be
appropriate. It found that such a remedy must be analyzed on a
case-by-case basis, carefully balancing the nature and circumstances of
the particular violation against the degree of disruption in government
operations that would be caused by such a remedy. Among other things,
the Authority considers:
(1) whether, and when, notice was given to the union by the
agency concerning the action or change decided upon; (2) whether,
and when, the union requested bargaining on the procedures to be
observed by the agency in implementing such action or change
and/or concerning appropriate arrangements for employees adversely
affected by such action or change; (3) the willfullness of the
agency's conduct in failing to discharge its bargaining
obligations under the Statute; (4) the nature and extent of the
impact experienced by adversely affected employees; and (5)
whether, and to what degree, a status quo ante remedy would
disrupt or impair the efficiency and effectiveness of the agency's
operations.
(8 FLRA at 606).
In this case, the Union was never advised of the implementation date
of the Quality Circle Program. Its officials did receive a briefing on
the program prior to its implementation; but the briefing was
admittedly not an attempt to give the Union notice and an opportunity to
bargain. See finding 16, supra. On March 10, 1982, after the program
was underway, the parties agreed to address the establishment of quality
circles "at a later date" (finding 19, supra). On March 16, the Union
requested bargaining. See finding 21, supra. On March 22, Respondent
summarily rejected the request, and claimed that the matter should be
settled by the Productivity Council, from which it knew that the Union
had withdrawn and which was, by agreement of the parties, not to act as
a "bargaining table" (findings 22 and 6).
As a result, bargaining unit employees have lost the advantage of
having their exclusive bargaining representative represent them at
labor-management meetings where such negotiable matters as their health
and safety are routinely discussed and resolved. Instead, these matters
are handled by employees selected by Respondent from a group of
volunteers.
What the General Counsel seeks is a discontinuance of the Quality
Circle Program, and all quality circle meetings, unless and until the
Union requests to bargain and the parties reach agreement over the
substance, impact, and implementation of such a program. See GCBr 22.
Since the Quality Circle Program is still in a "test" stage, and is
designated to resolve work-related problems, many of which can be
resolved through the collective-bargaining process, no serious
disruptions or impairment of the efficiency and effectiveness of
Respondent would occur from its discontinuance as to LIU members.
Based upon the facts of this case and the consideration articulated
by the Authority in Federal Correctional Institution, the status quo
ante remedy should be invoked, in this case.
In view of the above conclusions, there is no need to resolve other
issues raised by the parties.
Respondent has violated 5 U.S.C. 7116(a)(1), (5) and (8).
Accordingly, and pursuant to Section 5 CFR 2423.29 and 5 U.S.C. 7118
the Authority hereby orders that the Respondent shall:
1. Cease and desist from:
(a) Operating a Quality Circle Program that involves employees
for whom the Charging Party is the exclusive representative,
unless and until an agreement is reached with the Charging Party
as to the content, implementation, and impact of such a program
upon the bargaining unit represented by the Charging Party;
(b) Holding any quality-circle meetings with employees in the
bargaining unit represented by the Charging Party, without prior
notice to the Charging Party and an opportunity to attend; and
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Statute.
2. Take the following affirmative action:
(a) Post copies of the notice attached hereto as Appendix A, on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by an appropriate
official of the Respondent and shall be posted and maintained by
him for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonably steps shall be taken
to insure that said notices are not altered, defaced, or covered
by many other material.
(b) Pursuant to 5 CFR 2423.30 notify the Acting Regional
Director, Region 9, 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.
/1/ These statutory provisions provide, as follows:
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; . . . or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
A provision with which Respondent has allegedly not complied is that
found in Section 7114(a), dealing with "Representation rights and
duties." Subpart (2)(A) provides as follows:
An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at-- (A) any
formal discussion between one or more representatives of the
agency and one or more employees in the unit or their
representatives concerning any grievance or any personal policy or
practices or other general condition of employment(.)
/2/ Section 7106 provides, in pertinent part, as follows:
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--
(2) in accordance with applicable laws-- . . .
(B) to assign work . . . and to determine the personnel by
which agency operations shall be conducted; . . .
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating-- . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/3/ Objections to several questions were raised by the parties during
the course of the deposition. See pages 5, 8, 12, 15, 20, 21 and 22 of
the deposition. Counsel for Respondent withdrew the question after the
objection registered at page 5.
The objection, at page 8, was to lack of a foundation being laid as
to first-hand knowledge of the witness. The answer of the witness
established that he had hearsay information. Hearsay is not a ground
for excluding evidence in proceedings before the Authority. See 5 CFR
2423.19(h). This objection is overruled.
The objection, at page 12, was that the question was compound,
leading, and assumed facts not in evidence. This objection is overruled
in that the question, while compound, was not unclear, and was not
leading, or based on an assumption.
The objection, at page 15, was on the ground of repetition. This
objection is overruled. Nothing was in the record as to what knowledge
the labor relations officer, Mr. Boswell, had about the subject of the
question.
The objection, at page 20, was to "badgering the witness." Counsel
was merely trying to keep the witness response within the bounds of the
question posed. The objection is therefore overruled.
The objection, at page 21, was to misstating the contents of a
letter. No question was asked. Since this matter was immediately cured
by a reading of the letter, any misstatement was cured; and a ruling on
the objection is unnecessary.
The objection, at page 22, was that Counsel was making a speech, and
not asking a question. This objection is sustained. No answer was
given; and no apparent harm resulted.
/4/ The following abbreviations will be used in this decision. "TR"
refers to the transcript; "D" to the deposition; "GC" to exhibits of
the General Counsel; "R" to the late-filed exhibit of Respondent; "GC
Br" to the brief of the General Counsel; and "R Br" to the brief of the
Respondent. Multipage exhibits will be referred to by the exhibit
number followed by the page or paragraph number.
/5/ Portions of the discussion are taken from the General Counsel's
brief, which was both comprehensive and elucidating.
/6/ 5 U.S.C. 7114(a)(1) states:
A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering all employees in the
unit. An exclusive representative is responsible for representing
the interests of all employees in the unit it represents without
discrimination and without regard to labor organization
affiliation.
/7/ Under the Statute and with exceptions not here relevant,
mandatory subjects of bargaining are "personnel policies, practices, and
matters, whether established by rule, regulation, or otherwise,
affecting working conditions" (5 U.S.C. 7103(14) and see also (12)).
/8/ Executive Order 11491, as amended, is reprinted at page 312 of 5
U.S.C. 7101 (Supp. V).
/9/ Section 19(a)(1) made it an unfair labor practice to "interfere
with, restrain, or coerce an employee in the exercise of the rights
assured by this Order." Section 19(a)(6) made it an unfair labor
practice to "refuse to consult, confer, or negotiate with a labor
organization as required by this Order." Compare those provisions to
those of 5 U.S.C. 7116(a)(1) and (5), as set forth in footnote 1, supra.
Anthony R. Carr and Richard Kaake, Attorneys for Respondent
Bari Stolmack Ness, Attorney for the General Counsel, Federal Labor
Relations Authority
Marlin Tolbert, Representative for the Charging Party
WE WILL NOT continue to operate a Quality Circle Program that
involves employees for whom the Laborers' International Union, Local
1276, AFL-CIO, is the exclusive representative, unless and until
agreement is reached with Local 1276 over its content, implementation
and impact upon employees in the bargaining unit represented by Local
1276.
WE WILL NOT hold any quality-circle meetings with employees for whom
Local 1276 is the exclusive representative, without prior notice to
Local 1276 and an opportunity to attend.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
. . .
(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
Acting Regional Director, Federal Labor Relations Authority, Region 9,
whose address is: 530 Bush Street, Suite 542, San Francisco, California
94108, and whose telephone number is: (415) 556-8105.
24 FLRA-ALJ; Case No. 9-CA-20054 October 6, 1982
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, Respondent, and AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging Party
Before: FRANCIS E. DOWD, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat., 1191, 5
U.S.C. 7101, et seq. It was instituted by the Acting Regional Director
of the Ninth Region of the Federal Labor Relations Authority by the
issuance of a Complaint and Notice of Hearing dated January 26, 1982.
The Complaint was issued following an investigation of an unfair labor
practice charge filed on November 3, 1981 by American Federation of
Government Employees, AFL-CIO, herein referred to as the Union, Charging
Party, or AFGE. The Complaint alleges that Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland,
herein referred to as Respondent or SSA, violated Section 7116(a)(5) and
(1) by refusing to bargain over the substance, impact and implementation
of the Field Office Honor Awards Program.
Respondent denies any violations of the Statute and contends in its
briefs that it has no duty to bargain because the awards program was and
is a management right, is not concerned with a condition of employment,
and therefore is nonnegotiable.
A hearing was held in San Francisco, California, at which time the
parties were represented by counsel and afforded full opportunity to
adduce evidence and call, examine and cross-examine witnesses and argue
orally. Briefs filed by the General Counsel, Charging Party and
Respondent have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
1. At all times material herein, the Union has been, and is, a labor
organization within the meaning of 5 U.S.C. 7103(a)(4) of the Statute.
2. At all times material herein, Respondent has been, and is, an
agency within the meaning of Section 7103(a)(3) of the Statute.
3. At all times material herein, the Union has been certified as the
exclusive representative of a national consolidated unit, said unit
including, among other units, the following unit:
All General Schedule (GS) employees in Region IX (San Francisco
Region) under the jurisdiction of the Assistant Regional
Commissioner, Field Operations (ARC-FO), Social Security
Administration, Department of Health and Human Services;
excluding management officials, supervisors, (including Technical
Assistants in any Teleservice Center), employees engaged in
Federal personnel work in other than a purely clerical capacity,
guards, professionals, confidential employees, WIN, CETA
employees, Work-Study employees and employees employed in the
Redding District Office.
4. At all times material herein, Sally Anderson, occupied the
position of Assistant Regional Commissioner for Field Operations for
Respondent's Region IX, San Francisco, California, and has been and is a
supervisor and/or management official within the meaning of Section
7103(a)(10) and/or (11) of the Statute, and is an agent of Respondent,
acting on its behalf.
5. On August 11, 1981, Respondent forwarded to management personnel
a draft Regional Supplement Personnel Guide for Supervisors on Honor
Awards for field offices and requested comments by August 28. /1/ Prior
to August 11, no Field Office Honor Awards Program existed for the
Region. Respondent's draft program provides for awards to be given to
various offices in recognition of exceptional performance in the
following categories: Outstanding District, Outstanding District
Office, Outstanding Branch Office, Most Improved Office and Continued
High Achievement. Part II of Respondent's Honor Awards Program sets
forth the criteria, nomination and selection process as follows:
The Outstanding District award will be based on the total
performance of a district office and its branches. The Most
Improved Office citation may be awarded to either a district or a
branch office.
The criteria to be used in selecting offices for these awards
include public service and other non-quantifiable achievements, as
well as objective qualitative and quantitative measures of
performance. /2/
Area Directors will nominate offices/districts for each of the
four award categories, and prepare documentation including data
and analysis of the measurable indicators of performance;
contributions to public information; affirmative action;
personnel management; major accomplishments and improvements in
public service; office organization; labor management relations;
training activities; actions to counter State and local
termination activity; and media, advocacy and congressional
relations.
Criteria listed above are not all inclusive; documentation
should cover any other pertinent achievements, and should cite
those accomplishments which distinguish an office/district from
other high performing offices.
Completed Area Director nominations and documentation should be
submitted through the Assistant Regional Commissioner for Field
Operations.
Regional Office Components may also be requested to submit
documentation, as appropriate, for those offices nominated.
Documentation and analysis will be provided to the Regional
Commissioner for use in the selection of offices to be honored.
The draft program further provides that awards in the form of wood
plaques with metal engraved inscriptions will be personally presented by
the Regional Commissioner or designee, and that an announcement of the
selections for these awards will be released to local media and
appropriate community organizations.
6. As noted above (fn. 1 supra), the stipulated facts do not show
that Respondent ever provided the Union with notice that Respondent had
made a decision with respect to the Field Office Honor Awards Program,
which Respondent allegedly planned to implement. Had the Union been
provided with such formal notice, it would be evidence showing that
Respondent did in fact contemplate instituting such a program.
Moreover, such notice to the Union presumably would describe with
particularity Respondent's final decision with respect to the contents
of such program.
7. By letter dated August 21, the Union submitted "counterproposals"
and requested that the program not be implemented until conclusion of
"bargaining on the topic." Having previously found that Respondent was
not making a "proposal" to the Union, I conclude that the Union's use of
the word "counterproposal" is inaccurate and misleading. I also note
that the Union also titled its proposal "Incentive Awards," a term not
contained in Jt. Exh. No. 1, the Respondent's draft program submitted to
its management personnel.
8. The first paragraph of the Union's proposal states as follows:
It is the policy of the American Federation of Government
Employees and the Social Security Administration to encourage
efficient agency operations through the use of an incentive awards
program. In an effort to recognize the teamwork and combined
efforts of all employees in the field offices, a Field Office
Honor Awards Program has been established.
Although offices would still be selected for an award, the Union's
proposal eliminated the wood plaque and instead substituted $100 for
each employee in the "Outstanding" offices and $50 for each employee in
a "Most Improved" or "Continued High Achievement" office.
The proposal also provided that where the total amount of the award
would exceed $10,000, the award would be prorated among employees so
that the $10,000 limit would not be exceeded. The proposal also
provided for a joint role by the Union in the nomination and selection
process, and concluded with the following provision:
The Council President and the Assistant Regional Commissioner
for Field Operations will make joint personal presentations of all
awards under this program.
9. By letter dated September 3 (Jt. Exh. No. 3), Assistant Regional
Commissioner of Field Operations Sally Anderson replied to the Union's
August 21 letter as follows:
Since the proposed program would not affect working conditions
of individual employees we do not believe counter (sic) proposals
presented by the Council to be appropriate, however, we do
appreciate your comments on the program.
10. By letter dated October 13, Sally Anderson acknowledged receipt
of a bargaining request dated September 14, a copy of which was not
placed in evidence, and stated as follows:
As I stated in my letters to you of August 4 and September 3,
1981, we believe no duty to bargain exists in either situation,
therefore, your request to bargain is declined. /3/
11. A collective bargaining agreement between SSA and the Council of
District Office Locals, AFGE, San Francisco Region (Jt. Exh. No. 5)
contains the following provision:
Article 21-- Incentive Awards
Section A. Management will consider those employees recommended
in writing by the Council for awards. The parties agree that
awards and HQI's are appropriate subjects for initial discussion
at District consultation meetings.
Section B. The parties further agree that it is the employee's
performance, that is the basis for the Award and/or HQI, not the
Council's recommendation.
Chapter 451, Incentive Awards
Subchapter 1: Introduction
1-1. LEGAL BASIS
Chapter 45 of title 5, United States Code, is the legal basis for the
Government Employees' Incentive Awards Program.
1-2. PURPOSE OF PROGRAM
The Government Employees' Incentive Awards Program is designed to
improve Government operations and services. Its purpose is to motivate
employees to increase productivity and creativity by rewarding those
whose job performance and adopted ideas benefit the Government and are
substantially above normal job requirements and performance standards.
(5 CFR 451.201). The incentive awards program, when clearly endorsed
and vigorously supported at all levels of management on a continuing
basis, contributes significantly to improving Government productivity
and services.
1-3. OFFICE OF PERSONNEL MANAGEMENT RESPONSIBILITIES
a. Section 4506 of title 5, United States Code, requires the Office
to prescribe regulations and instructions under which agencies shall
conduct their awards programs. The regulation on incentive awards is
Part 451 of the Code of Federal Regulations. This chapter (451 of the
Federal Personnel Manual), is guidance.
1-4. AGENCY RESPONSIBILITIES
The Office of Personnel Management encourages agencies to make
maximum use of their authorities under Chapter 45 of title 5, United
States Code, to establish and administer awards programs that best
support and enhance agency and national goals, and meet employee
recognition needs.
(5 CFR 451.202). Agencies should design awards programs that will,
(1) encourage all employees to share activity in improving Government
operations;
(2) recognize and reward, appropriately, promptly, and on the basis
of merit, individuals and groups for suggestions, inventions, superior
performance, special acts or services, or other personal efforts that
substantially exceed normal standards or expectations and result in
improved Government productivity or services. /6/
1-5. DEFINITIONS
(5) "Plan" means a written statement approved by the head of the
issuing agency, implementing law and regulation on the Government
Employees' Incentive Awards Program. (5 CFR 451.203). /7/
(6) "Incentive Award" or "award" means either a cash award, an
honorary award, or both, (5 CFR 451.203) but does not include a quality
step increase or performance rating.
(7) "Contribution" means a (1) . . . suggestion, invention, superior
accomplishment, or other personal effort . . . that . . . contributes to
the efficiency, economy, or other improvement of Government operations .
. . or (2) . . . a special act or service in the public interest, in
connection with or related to his official employment. (5 U.S.C. 4503).
(11) "Honorary award" means a medal, certificate, plaque, or other
item that can be worn or displayed. Items of utilitarian nature are not
considered an honorary award simply because they can be displayed.
"Other item," in this sense, should have an award or honor connotation
and should not exceed the price range of a medal, certificate, or plaque
normally used for honorary recognition. /8/
(14) "Non-cash award" means a letter of appreciation or other
appropriate means used under the provisions of this chapter to recognize
employee contributions which do not meet the standard for a cash award.
Subchapter 7: Non-Monetary Recognition
7-1. PURPOSE
Motivation is complex and personal. It varies with the type of of
organization, the age and the background of the employee, and attitudes
of those who have been associated with the organization for a long time.
An award that may be an incentive in one time and place may have little
or no effect in another. An award, or likelihood of receiving an award,
that motivates one employee may leave another indifferent. Non-monetary
incentives offer two major advantages-- they help meet employees' needs
for recognition, growth and responsibility, and most can be relatively
inexpensive.
7-2. RESPONSIBILITIES
The range and variety of non-monetary incentives is almost limitless.
Each organization and each supervisor and manager should work with
their employees and incentive awards program staff to design incentives
programs that are meaningful and that will motivate and sustain high
levels of individual and organizational accomplishment.
In doing so, agencies are reminded of any obligation under 5 CFR Chapter
71 to negotiate or consult, as appropriate, with recognized labor
organizations on the application and impact of this program on current
policies, practices, and existing collective bargaining agreements. /9/
The basic issue which the General Counsel and Union would like
decided is whether or not a Field Office Honor Awards Program is a
negotiable subject for bargaining. Instead of filing a petition,
pursuant to Part 2424 of the Rules and Regulations, seeking
determination of a negotiability issue by the Authority, the Union has
instead elected to file an unfair labor practice charge alleging a
refusal to bargain within the meaning of Section 7116(a)(5).
Section 2423.5 (see also section 2424.5) of the Rules and Regulations
states in pertinent part as follows:
Cases which solely involve an agency's allegation that the duty
to bargain in good faith does not extend to the matter proposed to
be bargained and which do not involve actual or contemplated
changes in conditions of employment may only be filed under Part
2424 of this subchapter.
Part 2424 deals with "Expedited Review of Negotiability Issues." The
threshold issue, therefore, is whether the Charging Party has selected
the proper forum in which to obtain a determination of negotiability.
For the reasons set forth hereinafter I conclude that this case should
have been the subject of a negotiability petition filed under Part 2424
of the Regulations. Accordingly, I recommend that the charge be
dismissed.
1. The Field Office Honor Awards Program was drafted by Respondent
and forwarded on August 11, 1981 to its management personnel for
comments to be filed by August 28. Thus, the draft program was attached
to an internal memorandum from higher-level agency management to
lower-level agency management. Implicit in the foregoing is that the
draft program could be changed after receipt of such comments.
Accordingly, it seems to me that what Respondent was doing was obtaining
intra-management input with respect to a tentative decision concerning
(1) the idea of having a Field Office Honor Awards Program, and (2) the
content of such program, including the criteria to be utilized in
selecting recipients for such awards. Because the facts of this case
were stipulated at the hearing, there is no evidence by any official of
Respondent with respect to whether comments were in fact received from
Area Directors and other managerial officials, whether such comments
were considered by higher-level officials, and whether the draft program
was changed in any minor or major way after consideration of such
comments. In short, the General Counsel has failed to establish (1)
that Respondent ever made a final decision concerning the program, its
contents, and its effective date, and (2) that Respondent submitted its
final decision to the Union officially advising the Union of a
contemplated change in conditions of employment. /10/ Clearly, the
alleged change in conditions of employment never actually occurred
because the Field Honor Awards Program was never implemented. From the
foregoing I find and conclude that Respondent's transmittal of a draft
program on August 11 to its management personnel did not involve an
actual or contemplated change in conditions of employment within the
meaning of Section 2423.5 of the Authority's Rules and Regulations.
2. Respondent's reply to the Union dated September 3 constitutes a
declaration of nonnegotiability for the reason that the program "would
not affect working conditions of individual employees." I am not
persuaded that Respondent's failure to expressly use the word
nonnegotiable prevents me from reaching this conclusion. Clearly, what
Respondent was saying was that the duty to bargain did not extend to the
matter of Field Office Honor Awards.
3. Respondent's letter of October 13 declined to bargain but the
reason given is that "no duty to bargain exists" for the reasons
previously set forth in its letter of September 3. While I find and
conclude that this letter constitutes a refusal to bargain as alleged in
the Complaint, I further find and conclude that the basis for the
refusal is the asserted nonnegotiability of the Field Office Honor
Awards Program.
4. Respondent's assertion of nonnegotiability pertains to its own
draft program as well as to the Union's proposed program, both of which
concern Field Office Honor Awards, even though the Union's proposal
substantially changes the award from a single wood plaque presented to
the office as an organizational entity, to $100 in cash to each employee
in the award-winning office, not to exceed a total of $10,000.
In view of the foregoing, I find and conclude that Respondent has not
violated Section 7116(a)(5) and (1) of the Statute as alleged in the
Complaint. Accordingly, it is recommended that the Authority issue the
following:
That the Complaint in Case No. 9-CA-20054 be, and it hereby is,
dismissed.
/1/ The General Counsel repeatedly refers to Respondent's program as
a "proposal" as if it were something being proposed to the Union.
However, I find nothing in the record to warrant such conclusion. The
August 11 memorandum in Jt. Exh. No. 1 indicates that it is being sent
to management personnel and there is an absence of any notation showing
copies to the Union. The record is devoid of evidence showing how the
draft came into the Union's possession.
/2/ The parties stipulated that the performance of bargaining unit
employees in an office is part of the criteria for determining the total
performance of that office.
/3/ The August 4 letter was not placed in evidence and since it
predates the Respondent's draft program presumably is irrelevant to this
proceeding.
/4/ These excerpts are from Chapter 451 of the Federal Personnel
Manual dated August 14, 1981 which was prepared after enactment of the
Civil Service Reform Act of 1978. These therefore supercede the May 21,
1976 regulations in Jt. Exh. No. 6.
/5/ I find and conclude that the Government Employees' Incentive
Awards Program is a government-wide rule or regulation within the
meaning of Section 7117 of the Statute. However, in view of my
disposition herein, I make no finding as to its applicability to this
proceeding.
/6/ The Government Employees' Incentive Awards Program seems to
impose a requirement that performance or personal efforts, by
individuals or group members, "substantially exceed normal standards or
expectations." A Field Office Honor Award, rather than evaluating the
performance of individuals to a "substantially exceeds" standard, seems
to compare the aggregate performance of offices as organizational
entities in relationship to each other. Thus an "outstanding" or "most
improved" office could win an award even though individual employees in
that office may receive low performance ratings or not even meet the
acceptable level of competence for their grade.
/7/ The stipulated record does not contain any evidence of an
agency-wide rule or regulation concerning an incentive awards system.
Accordingly, I am unable to make any finding whether the draft program
was issued (a) pursuant to an agency-wide plan, or (b) pursuant to the
Government Employees' Incentive Awards Program.
/8/ In view of my disposition of this case, I find it unnecessary to
decide whether a Field Office Honor Award is "specifically provided for
by Federal Statute" within the meaning of Section 7103(a)(14)(C) of the
Statute. However, the following observations are made. Respondent's
draft program would have awarded a wood plaque to an office but did not
provide that individuals in the office would receive anything. The
Union's counterproposal of $100 to each employee in the office would
seem to "exceed the price range" of a wood plaque "normally used for
honorary recognition." If this case were before the Authority in a
negotiability proceeding under Part 2424, the Authority could, if it so
desired, seek an advisory opinion from the Office of Personnel
Management pursuant to Section 2424.15 of the Authority's Regulations
for their interpretation of 451 FPM to the extent applicable to issues
raised herein.
/9/ But see NFFE Local 1555, 3 FLRC 247, 254, where the Federal Labor
Relations Council held that labor organizations had no right to be
present at "intra-management" discussions even if such discussions
pertained to matters affecting the general working conditions of unit
employees (citing National Weather Service, 3 FLRC 91). In the NFFE
case, the Council also relied on a Civil Service Commission
interpretation that participation by employees on incentive awards
committees was permissible but not mandatory. The Union's proposal in
the instant case requires it to nominate and agree upon the selection of
offices to receive the awards. On this latter point, the General
Counsel takes no position as to its negotiability (Brief, at p. 7, fn.
6).
/10/ For the purpose of this decision I will assume, arguendo, that
the Field Office Honor Awards Program is a condition of employment
within the meaning of Section 7103(a)(12).
Thomas J. Lee, Esq., For the Respondent
Vince Morgante, For the Charging Party
Nancy E. Pritikin, Esq., For the General Counsel
24 FLRA-ALJ; Case No. 2-CA-20149 October 14, 1982
NEW JERSEY DEPARTMENT OF DEFENSE, NEW JERSEY AIR NATIONAL GUARD,
Respondent, and LOCAL 3486 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, Charging Party
Before: LOUIS SCALZO, Administrative Law Judge
This case arose as an unfair labor practice proceeding under
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The complaint alleged that since on or about April 3, 1981, and
continuing thereafter until the issuance of the complaint, the New
Jersey Department of Defense, New Jersey Air National Guard (Respondent)
violated Sections 7116(a)(1) and (6) of the Statute by failing and
refusing to implement or give effect to the provisions of an April 3,
1981 Federal Service Impasses Panel (Panel) Decision and Order requiring
the Respondent to adopt a grievance and adverse action proposal
submitted to the Panel by Local 3486 American Federation of Government
Employees, AFL-CIO (Charging Party or Union). /1/
Counsel representing the Respondent contends that the complaint
should be dismissed because it is inconsistent with a February 20, 1981
Decision and Order issued by the Authority in American Federation of
Government Employees, AFL-CIO, Local 3486, 5 FLRA No. 26, a
negotiability appeal initiated by the Charging Party; that issues in
the complaint have been rendered moot by an April 12, 1982 decision of
the United States Court of Appeals for the Third Circuit in an appeal of
the mentioned negotiability case (New Jersey Air National Guard, 177th
Fighter Interceptor Group and Department of Defense v. Federal Labor
Relations Authority, 677 F.2d 276, petition for writ of certiorari
filed, No. 82-224 (S. Ct. August 9, 1982)); that in light of issues
raised in the appeal presented to the Third Circuit, the Authority, is
by reason of the doctrine of res judicata, divested of jurisdiction to
hear and determine this unfair labor practice case; /2/ and lastly that
the complaint should be dismissed under the provisions of Section
7118(a)(4)(A), because the alleged refusal to implement the Panel's
Decision and Order occurred more than six months prior to the filing of
the charge.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Post-hearing briefs were received
from counsel representing the General Counsel and counsel representing
the Respondent. Based upon the entire record herein, including my
observations of the witnesses and their demeanor, the exhibits and other
relevant evidence adduced at the hearing, and the briefs filed, I make
the following findings of fact, conclusions and recommendations.
During 1978 negotiations designed to reach a collective bargaining
agreement, negotiability issues arose between the Respondent and the
Union (Tr. 81). On July 16, 1979, a negotiability appeal was filed by
the Union. Only two contract provisions involved in the appeal are
pertinent here, both of which relate to the scope of the negotiated
grievance procedure. /3/ These provisions, set out in G.C. Exh. 2,
reflect the following language:
Section 4. An aggrieved employee affected by discrimination,
removal, reduction in grade or pay based on an unacceptable
performance or any other adverse action may raise the matter under
any statutory appellant (sic) procedure or with the concurrence of
the union under the negotiated procedure but not both; except for
a discrimination complaint which may be a mixed procedure and
filed under both processes.
Section 4(b) The parties agree that the grievance procedure
negotiated herein (Article XI) may be used to adjudicate any
misunderstanding or disagreement relating to "just cause" and what
is considered "fair and equitable".
On December 15, 1980, prior to resolution of the negotiability
appeal, the Union filed a request for Panel assistance to consider a
negotiations impasse (Tr. 87). Among other subjects the Union request
referred generally to impasse issues relating to the scope of grievance
procedure, and the grievability of adverse and disciplinary actions
(G.C. Exh. 5). A factfinding hearing was held before a Panel
representative on January 29, 1981 (G.C. Exh. 6).
On February 20, 1981, the Authority resolved the negotiability
appeal. American Federation of Government Employees, AFL-CIO, Local
3486, 5 FLRA No. 26. /4/
The Authority held that the two proposed contract provisions quoted
above were, "within the duty to bargain under the Statute, although
portions thereof . . . are inconsistent with the Statute." In part, the
Authority ordered the Respondent to bargain on the "Adverse Disciplinary
Action" segment in its entirety, and the provision entitled "Grievance
Procedure," only to the extent indicated in the opinion. The Authority
found the following underlined portions of the latter nonnegotiable:
Section 4. An aggrieved employee affected by discrimination,
removal, reduction in grade or pay based on an unacceptable
performance or any other adverse action may raise the matter under
any statutory appellant (sic) procedure or with the concurrence of
the union under the negotiated procedure but not both; except for
a discrimination complaint which may be a mixed procedure and
filed under both processes.
The underlined portion permitting the filing of a discrimination
complaint under both a statutory appeal procedure and the negotiated
grievance procedure was deemed nonnegotiable because Section 7121(d) of
the Statute precludes an employee so affected from utilizing both
procedures, but instead requires the employee to elect one procedure or
the other.
The Authority also held that to the extent that the "Grievance
Procedure" required an aggrieved employee to obtain the concurrence of
the Union prior to the initiation of a grievance, the provision
conflicted with Section 7121(b)(3)(B) of the Statute; and further that
on its face the provision would require concurrence of the Union prior
to the filing of a grievance. It was noted that Section 7121(b)(3)(B)
of the Statute guarantees to employees the right to present grievances
on their own behalf, and that therefore, to the extent that the proposal
was inconsistent with Section 7121(b)(3)(B) of the Statute, it was
outside the duty to bargain. However, the Authority rejected
Respondent's contention that 32 U.S.C. 709(e) barred negotiations over
key elements of both provisions.
It had been contended that Section 709(e) precluded negotiations over
those portions of the Union's proposal which would include within the
scope of the negotiated grievance procedure matters such as
reductions-in-force, reductions in grade or pay based on unacceptable
performance, or any other adverse action involving National Guard
Technicians. It was urged that appeals of such actions cannot by law
extend beyond the adjutant general of the jurisdiction concerned. For
the same reason the Respondent had contended that adjudication of such
terms as "just cause" and "fair and equitable" as they applied to
adverse disciplinary actions imposed by the adjutant general, would be
contrary to 32 U.S.C. 709(e), since any ruling by an arbitrator with
regard to such terms would infringe on the exercise of the adjutant
general's authority in such matters. Relying upon these contentions the
Respondent filed an appeal in the Third Circuit United States Court of
Appeals to contest the Authority's bargaining order.
On March 13, 1981 the Panel issued a Factfinder's Report (G.C. Exh.
6), and on April 3, 1981, the Panel issued a Decision and Order in
connection with the impasse underlying the issuance of the complaint in
this unfair labor practice case. In the matter of State of New Jersey,
Department of Defense, New Jersey Air National Guard, Trenton, New
Jersey and Local 3486, American Federation of Government Employees,
AFL-CIO, Case No. 81 FSIP 29. Among other things the Panel ordered the
Respondent to adopt the Union's "proposal" relating to "Grievances and
Adverse Actions." /5/ The latter were identified in the record as a
"Article XI Grievance Procedure" (G.C. Exh. 6(a), Tr. 58-59, 88,
105-106); /6/ and "Article XV Adverse and Disciplinary Action" (G.C.
Exh. 9 at pages 30-34, Tr. 88-92, 103-104). /7/
Section 4 of Article XI, was identical in all respects to the
corresponding provision submitted earlier to the Authority for a
negotiability determination, and found to be nonnegotiable in
significant part by the Authority's February 20, 1981 Decision and Order
(5 FLRA No. 26). Section 4(b) of Article XV was identical in all
respects to the corresponding provision submitted to the Authority for a
negotiability determination, and in the same decision found to be
negotiable in its entirety. Thus, as of the date of issuance of the
Panel's April 3, 1981 Decision and Order the Respondent was in fact
being ordered to adopt a proposal which, in significant part, had
earlier been found to be nonnegotiable.
A request for a stay of the Panel's April 3, 1981 Decision and Order
was denied by the Panel on November 2, 1981 (G.C. Exh. 8). The
Respondent refused to adopt Articles XI and XV as mandated by the Panel;
and despite the serious problems associated with Article XI, it was
clear that the Union sought full compliance with the April 3, 1981 Panel
Decision and Order (Tr. 108-110). The Union demanded that it be adopted
"in toto" (Tr. 129-130).
On December 16, 1981, the Union filed the original charge in this
case alleging a refusal to cooperate in impasse proceedings and refusal
to implement the Panel's April 3, 1981 Decision and Order. As noted the
ensuing complaint, filed on February 22, 1982, rests entirely upon
Respondent's refusal to adopt Article XI and XV as specifically mandated
by the Panel's April 3, 1981 Decision and Order.
On April 12, 1982 the United States Court of Appeals for the Third
Circuit set aside the Authority's February 20, 1981 bargaining order and
denied an Authority cross-petition for enforcement of the order. New
Jersey Air National Guard, 177th Fighter Interceptor Group and
Department of Defense v. Federal Labor Relations Authority, supra. The
decision held that 32 U.S.C. 709(e) operates to bar negotiations over
those elements which the Authority had previously determined to be
negotiable in the February 20, 1981 Decision and Order, and referred
specifically to those portions of Article XI and Article XV which the
Authority had previously deemed to be bargainable. /8/ On April 28,
1982, the Authority petitioned for Panel rehearing and rehearing en
banc; and on May 11, 1982 the petition was denied.
A petition for writ of certiorari was filed on August 9, 1982.
On July 1, 1982, the Panel issued an Order Clarifying Decision and
Order in 81 FSIP 29. After setting out Section 4 of Article 11 of the
proposal mandated for Respondent's adoption by the Panel's April 3, 1981
Decision and Order, the Panel recognized the February 20, 1981
negotiability decision issued by the Authority in American Federation of
Government Employees, AFL-CIO, Local 3486, 5 FLRA No. 26, and noted that
certain language in Section 4 had been found to be nonnegotiable by the
Authority. It was also noted that the "matter was recently brought to
the attention of the Panel by the Office of the General Counsel," and
that the Panel could not take action inconsistent with an Authority
ruling in resolving an impasse. /9/ Accordingly, the Panel ordered the
following:
The parties shall adopt the Union's proposal /10/ concerning
grievances and adverse actions as amended at section 4 to read:
An aggrieved employee affected by discrimination, removal,
reduction in grade or pay based on an unacceptable performance or
any other adverse action may raise the matter under any statutory
appellant (sic) procedure or under the negotiated procedure but
not both. /11/
During the hearing counsel representing the Respondent expressed the
desire to obtain from the Panel copies of exhibits provided to the Panel
by the parties in Case No. 81 FSIP 29 (Tr. 90, 133-134). He sought
permission to add these documents to the record after the hearing (Tr.
135-136). Counsel representing the General Counsel agreed on condition
that he be provided an opportunity to take a position on the
authenticity and relevance of the documents (Tr. 136). Counsel
representing the Respondent agreed to this condition and stated that he
would make arrangements with the Panel to have the documents supplied to
all parties (Tr. 136-137, 158-159). This arrangement was approved.
Thereafter, by letter dated May 11, 1982, Colonel Billy McDaniel, on
behalf of the Respondent, supplied copies of certain documents directly
to the Office of Administrative Law Judges with the apparent
misunderstanding that the direct submission was contemplated by the
stipulation reached at the hearing. Counsel representing the General
Counsel objected to the admission of these documents on the ground that
the submission was not made in accordance with the stipulation. Since
some of these documents were not contemplated by the stipulation, and
the remainder were not supplied for the record in the manner agreed upon
by the parties, they have been given no consideration, and are not
deemed to be a part of the record of this case.
By separate letter dated May 11, 1982, a representative of the
Respondent requested the Panel to supply to the Office of Administrative
Law Judges, copies of exhibits submitted to the Panel in Case No. 81
FSIP 29. On May 26, 1982, a representative of the Panel inquired of the
Office of Administrative Law Judges whether it wished to have more than
one copy of the exhibits in question. The Panel was informed that one
copy of each exhibit was sufficient, and that the parties would, if they
so desired, apprise the Panel of any special need for additional copies
of the exhibits.
By letter dated June 23, 1982, the Panel informed the Respondent of
monetary charges in the amount of $17.10 associated with the request
pertaining to exhibits requested for the Office of Administrative Law
Judges, and asked for payment of same prior to furnishing the documents.
By letter of the same date a representative of the Respondent advised
the Office of Administrative Law Judges that arrangements for payment
had been made to obtain documents from the Panel, and requested that the
decision be deferred pending receipt of the exhibits.
By letter dated July 14, 1982, the Panel forwarded to the Office of
Administrative Law Judges copies of exhibits filed in Case No. 81 FSIP
29. Copies of these exhibits were not supplied to counsel representing
was General Counsel and objection to the admission of these documents
was interposed on this ground by counsel representing the General
Counsel. Although counsel representing the Respondent was provided with
a later post-hearing opportunity to correct this shortcoming, such
corrective action was not taken within the time period provided by the
Office of Administrative Law Judges. (See Memorandum to Counsel dated
September 9, 1982). Accordingly, the documents received from the Panel
may not be added to the record. However, it is noted that copies of
documents underlying the Panel's April 3, 1981 Decision and Order are in
the record as G.C. Exh. 6(a), and G.C. Exh. 9 (at pages 30-34). There
is not difference between the latter exhibits, and pertinent portions of
those received from the Panel. Accordingly, the Panel exhibits would
merely be repetitious or irrelevant.
In addition to the foregoing the Panel by letter dated July 1, 1982,
advised the Office of Administrative Law Judges of the content of its
July 1, 1982 Order Clarifying Decision and Order in Case No. 81 FSIP 29
and supplied a copy of the Order. The parties interpose no objection to
the admission of these documents. Accordingly, by reason of this fact,
and because official notice of Panel decisions and orders is otherwise
appropriate, these documents are deemed a part of the record.
Respondent's post-hearing request for further hearing on issues posed
by post-hearing submission of documents was not justified by the record,
and therefore is hereby denied.
Counsel representing the Respondent argues that the complaint should
be dismissed by reason of Section 7118(a)(4)(A) because the alleged
refusal to implement the Panel's April 3, 1981 Decision and Order
occurred more than six months prior to the filing of the original charge
on December 16, 1981. It is quite clear that a continuing unfair labor
practice was alleged in the charge and in the complaint. That is, it is
alleged that the unfair labor practice commenced following the issuance
of the Panel's April 3, 1981 Decision and Order, and continued
thereafter through February 22, 1982, the date of issuance of the
complaint. The complaint alleges that during this period the Respondent
"failed and refused, and continues to fail and refuse, to implement
and/or give effect to the provisions of the Decision and Order of the
(Panel) in 81 FSIP 29."
The continued nature of the unfair labor practice alleged is in fact
admitted by counsel representing the Respondent at pages 12 and 13 of
counsel's post-hearing brief. Since this case relies upon proof of an
alleged occurrence (refusal to comply with a Panel Decision and Order)
falling within the six-month period of limitations, and such occurrence,
as a substantive matter would, if established, constitute an unfair
labor practice, the six-month period of limitation set out in Section
7118(a)(4)(A) may not be interposed as a defense. Local Lodge 1424 v.
N.L.R.B., 362 U.S. 822 (1960).
The contention that the Panel's April 3, 1981 Decision and Order, is
inconsistent in significant part with the Authority's February 20, 1981
Decision and Order in 5 FLRA No. 26, is clearly supported by the record.
Counsel representing the General Counsel acknowledged during the
hearing that, "insofar as anything concluded by FSIP is in conflict with
the finding of (the) Authority on negotiability, then it (the Panel's
Decision and Order) would have to be modified" (Tr. 139, 152). The
closing brief filed by counsel representing the General Counsel stated
that, "the General Counsel does not advocate Respondent's adoption of
language which has been ruled nonnegotiable." (Brief filed by counsel
for General Counsel at page 8). This position was articulated in
counsel's July 30, 1982, Memorandum of Administrative Law Judge on
Behalf of the General Counsel Responding to Inquiry Dated July 22, 1982.
/12/ The inconsistency was in fact acknowledged by the Panel in its
July 1, 1982 Order Clarifying Decision and Order in Case No. 81 FSIP 29.
The latter Order operated to nullify the Panel's earlier April 3, 1981
Decision and Order to the extent mandated by the Authority's February
20, 1981 Decision and Order in 5 FLRA No. 26.
Counsel for the General Counsel argued that the Respondent was under
an obligation to avoid or ignore portions of the Panel's Order deemed
objectionable by the Authority and obey the remaining portions. This
position has no merit when it is recalled that the Union was demanding
total compliance, and that as of November 2, 1981, the Panel refused to
stay its April 3, 1981 Decision and Order. At a minimum, the Respondent
would have had to redraft the proposal mandated for adoption, and
effectuate only the portions of the Panel Decision and Order not deemed
objectionable by the Authority. This was a matter for appropriate
consideration and action by the Panel, as was later evidenced by the
Panel's July 1, 1982 post-hearing clarification.
In this case the Respondent was placed in the position of having to
adopt a proposal which had been declared to be nonnegotiable in
significant part. Assuming the negotiability of portions of the Panel's
April 3, 1981 Decision and Order, that is those portions deemed
negotiable by the Authority in its February 20, 1981 Decision and Order,
there was no specific contractual language (meeting Authority criteria)
for the Respondent to adopt. That is, the proposal mandated for
adoption was invalid in part, and in the absence of some clarifying
Panel language ordering the adoption of a contract provision fully
complying with the Authority's Decision and Order in Case No. 5 FLRA No.
26, Respondent had no obligation to comply. In short, during the period
of refusal or failure to comply alleged in the complaint, there was no
valid proposal presented to the Respondent to adopt. Such language was
not supplied until issuance of the Panel's July 1, 1982 clarifying
order.
In the context of this case the Respondent herein is specifically
charged with a refusal or failure to implement or give effect to the
Panel's April 3, 1981 Decision and Order, and not the Panel's July 1,
1982 clarifying order. Further, the proposal as written, and later
mandated for adoption, was not enforceable by operation of law as of
February 20, 1981, the date of the Authority's Decision and Order in 5
FLRA No. 26. Since the complaint is based entirely upon an invalid
proposal, and since the Respondent had no obligation to formulate a
valid proposal within the meaning of guidance established by the
Authority prior to April 3, 1981, the complaint herein must be dismissed
on the ground that the April 3, 1981 Panel Decision and Order was
inconsistent with an Authority ruling and the Statute.
On October 4, 1982, counsel representing the General Counsel filed a
Motion to Withdraw Complaint and Request to Return Charge to the
jurisdiction of the Regional Director "for further processing consistent
with the purposes and policies of the Statute." The motion reflects that
the Acting General Counsel had concluded that it would not effectuate
the purposes and policies of the Statute "to proceed with the instant
matter at this time." Neither the Respondent nor the Charging Party
responded to the motion.
The motion does not specifically reflect the disposition to be made
of the charge and complaint by the Regional Director, nor exactly how
the disposition recommended will effectuate the purposes and policies of
the Statute. Ordinarily, both the complaint and charge would be
dismissed with prejudice in a case wherein there is a prosecutive
determination that a case lacks merit. It is not clear whether this
result is intended. However, the record indicates the appropriateness
of such a disposition.
The case has been heard, and briefs filed. The fact that the Office
of the General Counsel does not "at this time" wish to pursue
prosecution of the case further would not, without more, mandate the
issuance of an order permitting withdrawal of the complaint and return
to the charge to the Regional Director.
Accordingly, the motion is denied.
In view of the conclusions outlined it is necessary to rule upon
other issues raised by counsel representing the Respondent. /13/ It is
recommended that the Authority issue the following Order pursuant to 5
C.F.R. 2423.29(c).
IT IS HEREBY ORDERED that the complaint in Case No. 2-CA-20149, be,
and it hereby is, dismissed.
/1/ Although the broad terminology used in the complaint appears to
allege unfair labor practices based upon a refusal to comply with all
elements of the Panel's April 3, 1981 Decision and Order, it is clear
from the position taken by counsel representing the General Counsel and
the Charging Party that only alleged refusal to give effect to those
portions of the Panel's Decision and Order dealing with the subject of
grievances and adverse actions are relied upon as a basis for the
complaint.
/2/ These arguments were first raised in a pre-hearing motion.
Resolution was deferred in favor of a hearing and decision based on the
record developed by the parties (Tr. 31-32).
/3/ Other aspects of the negotiability dispute related to a Union
reduction-in-force proposal are not in issue here. Although the record
does not reflect the filing date, administrative notice is taken of the
filing date from the Authority's Docket Files.
/4/ Mr. Joseph Girlando, a national representative of the Union,
testified that the request for Panel assistance was not filed until
after the Authority's February 20, 1981, resolution of the negotiability
dispute. However, Mr. Girlando also stated that the December 15, 1980
request for Panel assistance was the only request submitted, and further
that it was in fact submitted on December 15, 1980 (Tr. 87, G.C. Exh.
5). It clearly appeared that the request for Panel assistance preceded
resolution of the negotiability appeal by the Authority.
/5/ The Panel clearly linked Articles XI and XV together as one
proposal in its Decision and Order. Although referred to in the record
herein as two separate Articles, it is clear that Article XI entitled
"Grievance Procedure," may not, within the context of this case be
considered separately from Article XV entitled "Adverse and Disciplinary
Actions," as the sections are interrelated and involve issues pertaining
to exclusions from the grievance procedure. This close relationship is
clear from the Factfinder's Report (G.C. Exh. 6); the Authority's
February 20, 1981 decision on negotiability in 5 FLRA No. 26; and the
April 12, 1982 decision of the United States Court of Appeals for the
Third Circuit. See also the Panel's July 1, 1982 Order Clarifying
Decision and Order in Case No. 81 FSIP 29.
/6/ G.C. Exh. 6(a) was erroneously referred to as "G.C. Exh. 6(b)" at
page 105 of the transcript.
/7/ As noted the two Articles were identified by the Panel as a Union
proposal. The record reflects that Article XI Grievance Procedure was a
separate Union Exhibit considered by the Panel and that Article XV was
included as a portion of a Joint Exhibit considered by the Panel.
/8/ The Court also held that he proposal concerning
reduction-in-force was not negotiable.
/9/ A post-hearing Memorandum dated August 24, 1982, submitted by
counsel representing the Respondent in response to inquiries addressed
to counsel of record following the hearing, alleged that the Regional
Attorney, Region II, improperly arranged for the issuance of the Panel's
July 1, 1982 Order Clarifying Decision and Order. On September 9, 1982
counsel representing the General Counsel filed a Motion to Strike such
references in Respondent's August 24, 1982 Memorandum on the ground that
the Regional Counsel had no improper contacts with any Panel
representative, and did not otherwise solicit the issuance of the July
1, 1982 Order Clarifying Decision and Order. The Motion to Strike
acknowledged that the Office of the General Counsel, by memorandum dated
June 17, 1982, advised the Panel of the General Counsel's position on
enforcement of the April 3, 1981 Panel Decision and Order. It was
contended in the Motion to Strike that the July 17, 1982 memorandum to
the Panel did not solicit the issuance of a clarifying order or any
other document from the Panel. Further, it was noted that copies of the
memorandum addressed to the Panel were transmitted to all parties to
this proceeding.
There is no indication that the Office of Administrative Law Judges
was served with a copy of the July 17, 1982 memorandum. On this point
the record will reflect that no copy of the memorandum, or evidence of
service on the parties, was received by the Office of Administrative Law
Judges, although the instant case was pending decision on July 17, 1982.
As a result, it is not possible to determine whether copies were
transmitted to, and received by the Union and the Respondent. Although
the record developed in this case provides no evidentiary basis for the
statements questioned by counsel representing the General Counsel, the
fact that the June 17, 1982 memorandum (acknowledged in the Motion to
Strike) was not made a part of the record, makes it necessary to
conclude that the record does not otherwise reflect a sufficient basis
for factual determinations sought in the Motion to Strike. However,
such findings are not essential for the purpose of resolving issues
posted by the complaint.
It is logical to assume that the prospective position taken by
counsel for the General Counsel was of appropriate concern to the Panel,
pertaining as it did to the General Counsel's determination not to press
for full enforcement of the Panel's April 3, 1981 Decision and Order.
Further, a mere statement of such position, without more, would not be
improper if made on notice to all parties and the Office of
Administrative Law Judges, and if made without an ex parte effort to
improperly persuade the Panel to take action. It is noted in this
regard that the Respondent had earlier sought a stay of the April 3,
1981 Decision and Order, and that making known the General Counsel's
position that portions of the Panel's Order were not enforceable, would
at least in part, inure to the benefit of the Respondent.
However, issues concerning the propriety of unilaterally reopening
the Panel proceeding without giving consideration to such reopening on a
pending unfair labor practice proceeding are posed by the action taken
by the Office of the General Counsel. Ordinarily the processing of an
unfair labor practice charge is deferred or suspended during the
processing of the same matter by the Panel. Here, both were proceeding
apace at the same time as a result of the June 17, 1982 memorandum to
the Panel. It would have been reasonable to conclude that some Panel
action would follow the June 17, 1982 memorandum, and further that it
would have had an effect on the processing of this unfair labor practice
case, because the Panel's April 3, 1981 Decision and Order forms the
basis on which the complaint is framed. At a minimum, prompt action
should have been taken to apprise the Office of Administrative Law
Judges and all parties of the intent to take action reasonably tending
to cause Panel reconsideration of a prior decision. The failure to
provide such notice could have resulted in the issuance of an
administrative law judge decision on the basis of an incomplete and
inaccurate record. It appears (from the Motion to Strike at least) that
the Panel and the parties were apprised of developments, but not the
element of the Authority then charged with the task of formulating an
initial decision in this unfair labor practice case.
/10/ See footnote 5 supra.
/11/ Issues posed by the April 12, 1982 decision of the United States
Court of Appeals for the Third Circuit were not otherwise addressed by
the Panel in its July 1, 1982 Order Clarifying Decision and Order.
/12/ This Memorandum, together with a similar document filed by
counsel representing the Respondent, reflect responses to an inquiry by
the undersigned concerning the positions of the parties regarding the
post-hearing July 1, 1982 Order Clarifying Decision and Order in Case
No. 81 FSIP 29. See footnote 9 supra.
/13/ The decision of the Third Circuit may also be construed as
invalidating the April 3, 1981 Panel Decision and Order insofar as it
purports to govern activity within the jurisdiction of the United States
Court of Appeals for the Third Circuit. The Motion to Withdraw
Complaint and Request to Return Charge to the jurisdiction of the
Regional Director clearly suggests that the Third Circuit decision
comprises an additional reason for dismissal. The decision also poses
serious issues concerning the responsibility of the General Counsel in
cases wherein there is a conflict between a ruling of the Authority, and
a ruling of a Circuit Court in resolving questions of law arising within
the jurisdiction of a Circuit Court. See generally Allegheny General
Hospital v. N.L.R.B., 608 F.2d 965, 970 (3rd Cir. 1979), and Iowa Beef
Packers Inc., 144 N.L.R.B. 615, 616.
The factual pattern presented here is unlike that found in Michigan
Army National Guard, Lansing, Michigan, Case No. 5-CA-20127 (June 30,
1982), where Administrative Law Judge Burton S. Sternburg found that an
unfair labor practice was committed in the Sixty Circuit as a result of
a similar refusal to comply with a Panel Decision and Order. In the
Michigan case Judge Sternburg did not view the April 12, 1982 Third
Circuit decision as controlling. In view of the factual situation
presented in that case there would have been no basis for following the
Third Circuit decision in the absence of an Authority ruling adopting
the Third Circuit position.
Robert V. Paschon, Esquire, For the Respondent
James Petrucci, Esquire,
Alfred R. Johnson, Jr., Esquire, For the General Counsel
Joseph Girlando, Esquire, For the Charging Party
24 FLRA-ALJ; Case Nos. 1-CA-20129 1-CA-20202 December 17, 1982
DEPARTMENT OF THE HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, (BALTIMORE, MARYLAND) AND SOCIAL SECURITY
ADMINISTRATION, BOSTON REGION, FIELD OPERATIONS, PROVIDENCE DISTRICT
OFFICE, (PROVIDENCE, RHODE ISLAND), Respondent, and LOCAL 1164, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Charging Party
Before: FRANCIS E. DOWD, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
C.F.R. 7101, et seq. It was instituted by the Regional Director of the
First Region of the Federal Labor Relations Authority by the issuance of
a Consolidated Complaint and Notice of Hearing dated July 9, 1982.
The Consolidated Complaint was issued following an investigation of
unfair labor practice charges filed by Local 1164, American Federation
of Government Employees, AFL-CIO, herein referred to as the Union. The
charge in Case No. 1-CA-20129 was filed on March 1, 1982 and the charge
in Case No. 1-CA-20202 was filed on April 29, 1982. An amendment to the
Consolidated Complaint was issued on July 14, 1982.
The Consolidated Complaint alleges that since on or about February
16, 1982 Respondent has violated Section 7116(a)(1) and (2) of the
Statute by changing the job assignment of employee Irene A. Prioletti,
at Respondent's Providence District Office from a Title II Claims
Representative to a Title XVI Claims Representative because Ms.
Prioletti exercised rights guaranteed under Section 7102 of the Statute.
The Complaint also alleges that Respondent has violated 7116(a)(1) and
(5) of the Statute by refusing to negotiate since on or about March 4,
1982 with the Union concerning the impact and implementation of its
decision to transfer involuntarily a Claims Representative from its
Warwick Branch Office to its Providence District Office; and by
unilaterally implementing such an involuntary transfer, on or about
March 8, 1982, thereby changing existing personnel policies and
practices without having furnished the Union an opportunity to negotiate
concerning the impact and implementation of the change. Respondent
filed an Answer denying violation of the Statute.
Although there are a number of issues to be resolved herein, the
primary issue upon which this case is being decided is the untimeliness
of the Union's request to bargain.
A hearing was held in Boston, Massachusetts, at which time the
parties were represented by counsel and afforded full opportunity to
adduce evidence and call, examine and cross-examine witnesses and argue
orally. Briefs filed by the General Counsel and Respondent have been
duly considered.
Upon consideration of the entire record in this case, /1/ including
my evaluation of the testimony and evidence presented at the hearing,
and from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
1. Respondent is an agency within the meaning of 5 USC 7103(a)(3).
2. Local 1164 and American Federation of Government Employees,
AFL-CIO, are labor organizations within the meaning of 5 USC 7103(a)(4).
3. At all times material herein, the following named persons
occupied positions set opposite their respective names, and have been
and are now agents and/or supervisors of Respondent.
Thomas F. Fenton District Manager, Providence
Robert O'Malley Branch Manager, Warwick
Robert J. Barry Area Director III, Worcester, MA
Patrick J. O'Connor, Jr. Assistant Regional Commissioner,
Field Operations
4. (a) At all times material herein up to and including August 29,
1979, Local 1164 was the certified exclusive representative of
Respondent's employees in the following bargaining unit:
All non-supervisory permanent employees in the District and
Branch Offices of the Social Security Administration in New
England (Boston Region); excluding District Managers, Assistant
District Managers, Operations Supervisors, Administrative
Assistants, Administrative Aides and/or other employees who are
ineligible under the provisions of Executive Order No. 11491. No
guards included in this unit.
(b) On August 30, 1979, American Federation of Government Employees,
AFL-CIO was certified as the exclusive representative of the employees
in the unit described above as part of a consolidated nationwide
nonprofessional unit.
(c) At all times material herein, Local 1164 has been and is now the
agent of American Federation of Government Employees, AFL-CIO, acting on
its behalf in representing employees in the unit described above in
subparagraph (a), in matters including negotiations concerning changes
in conditions of employment at the Regional level and below and/or the
impact and implementation of such changes.
5. Alleged Past Practice of Involuntary Reassignments
The Complaint alleges that Respondent, prior to the implementation of
the involuntary reassignment of Irene Prioletti, had no personnel policy
or practice of involuntarily transferring claims representatives from
one geographic location to another. In support of this position, Union
President Percy Daley testified that in the past 10 years in which a
collective bargaining relationship has existed between Respondent and
the Union, there has not occurred any such transfer within his
knowledge. By way of rebuttal, Respondent offered the following
evidence: (1) District Manager Fenton testified that in 1972 a field
representative named Anthony Rainone was involuntarily transferred from
Providence to Woonsocket;
(2) Charles Weaver, Assistant Regional Commissioner for Management and
Budget for the Boston region, a management official since 1970,
testified that in 1977 two unnamed service representatives were
transferred from Pittsfield to North Adams; (3) Weaver also testified
that in 1971 some branch offices were opened and this required an
unspecified number of forced assignments; and (4) Respondent Exhibit
No. 1 is an arbitration decision involving an involuntary temporary
detail of a service representative for 40 days. The record also shows
that at the present time there are between 500 and 600 claims
representatives-- roughly one-third of the staff-- in the Boston Region.
6. Article 30, Section 1 of the 1978 agreement between Respondent
and the Union provides as follows:
Section 1. Management reserves the right, in accordance with
Executive Order 11491, as amended, to detail and/or reassign
employees when necessary to further the mission of the agency.
My review of the record discloses no evidence of any waiver by the
Union of its statutory right to request bargaining concerning
involuntary reassignments of claims representatives or, for that matter,
any employees.
7. Respondent's Decision to Require a Reassignment
In December 1981, Respondent's Providence, RI District Office, of
which the Warwick, RI office is a branch, lost a claims representative
(CR) through reassignment. This reassignment was the third claims
representative lost by Respondent's Providence, RI District Office in
1981 and the fourth since 1980. These four vacancies had been filled
with only one part-time claims representative in Respondent's Providence
office. This situation led the manager of the Providence, RI District,
Mr. Thomas Fenton, to decide to fill the gap in the office staffing with
a fully experienced claims representative rather than a trainee from the
new class about to begin. Respondent's Warwick Branch Office was chosen
by Fenton in early January 1982 as the office from which he would select
a fully experienced claims representative to be reassigned to
Providence, with the trainee from the new class slated to go to Warwick.
Fenton gave instructions to the Warwick Branch Manager, Robert O'Malley
to inform the local union steward and the claims representatives that
someone would be chosen from the Warwick office to go to Providence and
that he was looking for a volunteer. Fenton further indicated that he
would explain the reason for the decision to the staff at his regular
monthly visit later in the month.
8. Notification to the Union
The record shows that Branch Manager O'Malley held a discussion on
January 13, 1982 with the Warwick steward John Tworog concerning the
selection of a claims representative from Warwick to be reassigned to
Providence. The Warwick steward, John Tworog, testified that he was
very concerning about the reassignment to Providence and in fact
believed that he would be chosen for the move. Because of these strong
concerns he took several actions. Tworog requested information from his
Branch Manager, O'Malley, about the move on January 21, 1982 and January
22, 1982 (Resp. Exh. Nos. 2 and 3). O'Malley responded with the
information requested on January 22 and January 27, 1982 (Resp. Exh.
Nos. 2a and 3a). Tworog testified that he called his network chief
steward, Stephen Castellina, approximately 1 week after the January 13th
meeting with O'Malley and indicated that he feared the possibility that
management was retaliating against him for the filing of a prior unfair
labor practice charge. Tworog testified that he urged Castellina to
initiate bargaining on the matter. Tworog's strong concern over the
matter is further evidenced by the letter dated January 21 written in
his behalf by Stephen Castellina to the FLRA Regional Office (Resp. Exh.
No. 5). Tworog further testified that he was unsure where any
bargaining on this matter should take place since he was told by
O'Malley that negotiations would have to be with Fenton but he recalled
telling Castellina that he wanted the union to bargain "immediately".
O'Malley credibly testified that all he received from Tworog was an
inquiry as to what was the proper level to "appeal" Fenton's decision.
O'Malley did not receive a bargaining request from Tworog. To the
extent that Tworog even used the word "bargain" it was in his
conversation with Castellina (Tr. 113, lines 7-20; Tr. 118, lines
14-21). In any event, when pressed as to whether he, Castellina, or
Morenon ever requested bargaining prior to January 29, he replied, "I
don't remember" (Tr. 114, line 25 to Tr. 115, line 16).
9. Fenton's meeting with the Warwick staff
At a regularly scheduled monthly meeting in the Warwick Branch Office
January 26, Fenton told the assembled staff that the transfer of a
claims representative to Providence would take place in late April, and
that a trainee would be assigned to Warwick as a replacement. Fenton
added that employees had until Friday, January 29 to volunteer, and that
in the absence of volunteers he would select an employee. During the
staff meeting Tworog asked Fenton to meet privately with the claims
representatives so they could ask questions. Fenton agreed. In that
later session, in response to an employee's question, Fenton remarked
that there was a 90 percent chance that the position to be filled at
Providence would be a Title II, as compared to a Title XVI position.
Prioletti testified that at this point she remarked "there goes the
volunteer." What she meant was that there was little likelihood of
obtaining volunteers as long as there was any change of doing Title XVI
work which was regarded as less desirable. At that time, the majority
of claims representatives at the Warwick Office were employed handling
Title II matters; only Prioletti and Charles Varnet were employed in
Title XVI.
Title II work, Fenton testified, was less difficult than Title XVI.
The possibility of a Title XVI opening, Fenton told the employees,
depended only upon whether one of the incumbent Title XVI claims
representatives at Providence obtained an operations analyst job at the
Pawtucket, Rhode Island Office. If a Title XVI position was vacated as
a result, Fenton intended to fill it with a Warwick claims
representative. In an effort to obtain volunteers, Fenton testified, he
told the employees he "hoped that those who had worked in Providence or
heard about the place would recognize that it was a lot different now
than it had been previously", and proceeded to describe improvements in
the office made since specialization of the Title II and Title XVI
programs in 1979. Fenton had been District Manager since April 1978.
In short, Fenton testified, he "tried to paint the best possible picture
of the Office." Fenton told the employees that he wanted a "mature and
experienced" employee for the position at Providence. In his testimony
at the hearing, Fenton acknowledged that working conditions of the
Providence District Office were different from those at Warwick, and
generally recognized to be more stressful on all employees. The
Providence District Office was the second largest in the Region and the
workload was "very difficult" and marked by "pressure on interviewing"
and high turnover.
During the course of this meeting, questions were asked by employees,
including steward Tworog. Although Tworog brought up the subject of
seniority as a factor in making a selection, he did not specifically
request that Respondent bargain with the Union concerning selection
procedures, nor did he protest on behalf of the Union the decisions of
Respondent in this regard.
10. Further Notice to the Union
Following the January 26 staff meeting, Fenton met with Providence
District Office steward Sarah Morenon on January 28, in accord with the
practice of holding monthly labor-management meetings. Morenon,
testified that Fenton told her that "he had gone to Warwick, and he was
asking for volunteers to come to Providence." /2/ Fenton added that he
was hoping to get volunteers by the next day, January 29, and that,
absent a volunteer, he would choose an employee by the next week.
At that time Morenon asked Fenton for general information concerning the
transfer. The meeting, as the practice dictated, was memorialized in a
summary dated January 28 (G.C. Exh. No. 2).
11. Fenton's Decision to Select Prioletti
When nobody volunteered by the deadline of Friday, January 29, Fenton
waited a few more days and then, on February 3 selected Irene Prioletti.
On the same date he called O'Malley who, in turn informed Prioletti of
this decision on February 4 and told her that Fenton would come to
Warwick the following week to explain his decision.
On Wednesday, February 10, Fenton visited Warwick. Upon his arrival
Prioletti requested that Tworog attend as her union representative.
Fenton replied "I don't think that's necessary. I don't think your job
is being threatened." Prioletti responded, "Well, I think it is," and
with Fenton's agreement Tworog joined in the meeting. The record well
establishes that from the start of the meeting Prioletti challenged
Fenton's decision to select her rather than another employee, that
Prioletti clearly conveyed to Fenton her desire to remain in Warwick,
and that as the meeting progressed the conversation became increasingly
frank and heated. Prioletti's testimony of the meeting was generally
forthright and is corroborated to a great extent by the later testimony
of Tworog and Fenton.
In response to Prioletti's request, Fenton explained why he did not
select certain other employees with the same length of service and why
he did not select some employees with less service. Although
Prioletti's selection may have appeared to be arbitrary, the reasons
given did not show any anti-union motivation in her selection, nor is
this contended by the General Counsel.
Prioletti protested her reassignment vigorously and pointed out that
she deserved more consideration in view of her length of service. She
told Fenton she lived with her elderly parents and that a move to
Providence would mean not being able to occasionally check on them at
lunchtime. She noted that she would have increased parking expenses in
Providence and that her daily commute would be longer. /3/ In brief,
Prioletti protested to Fenton that, under the circumstances, the
transfer to Providence really represented a "demotion."
Accordingly to Prioletti at one point she even asked Fenton: "Are
you trying to get rid of me?" Fenton replied, "No, why do you ask that?"
Prioletti then said, "Well, that seems to be your method of operation."
At another point Prioletti remarked to Fenton, "You're behaving like a
Hitler, you know, when you dictate to people," prompting Fenton to
caution her, "you better watch out what you say, Irene; you know, don't
lash out like that." Fenton then emphasized, "You will report to
Providence on February 22," adding "And you had better report and have a
better attitude than you have now."
During the meeting, Prioletti was told by Fenton that her new job
would be in Title II work but she objected saying she would need
training. Fenton replied that training would be no problem. At this
point, Prioletti replied that "she was too old to hassle all the new
comps, the new computations that were in effect." /4/ Her protestations
about not wanting to be retrained for Title II work prompted Fenton to
emphatically make the point that she would do whatever work was assigned
to her. To illustrate his point, he recalled how he had previously
reassigned an individual from one program to another (namely, Paul
Tetrault) and that on that occasion he told the supervisor that once a
management decision was made to select Tetrault, the decision would not
be changed. Having recalled this incident, Fenton also recalled that he
had promised Tetrault an opportunity to eventually get out of title XVI
work (Tr. 147-148). This last recollection was not mentioned to
Prioletti, but in view of her protestations Fenton decided to check with
Tetrault on his availability to switch to Title II. As will be noted
later, the "promise" to Tetrault was a fact and not something made up by
Fenton.
As the meeting ended, Prioletti told Fenton that she would file a
grievance over the selection, and Tworog added that the union would
conduct "informational picketing in front of the Providence office and
also probably contact newspapers as sort of a human interest story as to
how SSA treats their employees with seniority." At the meeting's end,
Prioletti testified, Fenton was not "too pleased" with them. By
Tworog's recollection, Fenton at that point "seemed to be upset" and
firmly reiterated to Prioletti, "You're going to go to Providence, and
that's it."
Fenton admitted at the hearing that he had not anticipated such a
violent response at the meeting by Prioletti.
12. Fenton's Decision to Transfer Tetrault to Title II
The following day, February 11, Fenton called Morenon into his
office. He attempted to persuade her that the informational picketing
idea could backfire if the media chose to utilize the situation to
denigrate federal employees picketing at a time of high unemployment.
He also told her that Prioletti did not want Title II and that in view
of his previous promise to Tetrault he was going to consider Tetrault.
Morenon admitted that she heard through the grapevine a year ago about
the promise to Tetrault. Although surprised to hear Prioletti didn't
want Title II work, Morenon apparently made no effort to contact
Prioletti and verify Fenton's statement. She agreed to check with
Tetrault on his availability. Fenton wanted an answer by the next
morning.
The following day Morenon and Tetrault met with Fenton, and after
Tetrault was satisfied that he would not be disadvantaged by
transferring to Title II, he agreed to it. Fenton readily admitted that
Paul had never complained after he went into Title XVI, did a very good
job, and had never broached the subject of returning to Title II despite
the fact that there had been some openings.
13. Prioletti Receives the News about Tetrault
On the following Tuesday, February 16, Fenton again met with
Prioletti and Tworog. Prioletti had already learned that morning from
employee Stephanie Taylor, and from O'Malley, that her transfer would be
to a Title XVI job. Prioletti's testimony of the meeting, corroborated
by Tworog, was uncontradicted by Fenton. According to Prioletti, Fenton
said he had realized he had promised Tetrault the next Title II opening,
and that he had "made a deal" with Tetrault. Prioletti asked,
understandably, "(why) didn't you give me this same consideration before
you decided to do this to me?", and Fenton responded, "Well, I never
made any deals with you." Fenton added that Tetrault "was interested in
promotion; and had always been the type that he could rely on." As
Tworog recalled, Fenton pointed out that Tetrault had gone into Title
XVI even though he didn't want to. Finally, Fenton told Prioletti that
she was not to report February 22, as he had told her the previous week,
but on March 7, because the paper work was not ready. Fenton's
memorandum recommending Prioletti's transfer is dated February 16 and
addressed to Fenton's supervisor, Area III Director Barry (Resp. Exh.
No. 7).
14. The Events of February 24
a. On February 24, Prioletti filed a grievance (Resp. Exh. No. 8)
concerning her involuntary transfer alleging a violation of Articles 18
and 30 of the Agreement. She specifically asked that her transfer be
postponed until the grievance was settled, and she asked for statistics
used by the agency to "back-up this decision."
b. On February 24, Union President prepared an unfair labor practice
charge alleging a violation of Section 7116(a)(1) and (2) based upon the
change of Prioletti's job assignment from Title II to Title XVI because
she indicated her intent to file a grievance. The charge was docketed
by the FLRA Regional Office on March 1 and assigned Case No. 1-CA-20129.
It was served by a letter dated March 2 to Fenton but the date of
receipt is not in the record.
c. On February 24, (3 weeks after Prioletti's selection but 1 week
before the effective date of her transfer), Sarah Morenon submitted a
memorandum to Fenton which stated as follows:
Subject: Pending involuntary transfer of a Claims
Representative from the Warwick Branch Office to the Providence
District Office and assignment of a Claims Representative Trainee
to Warwick.
I am requesting that we meet and confer concerning the proposed
involuntary transfer of Irene Prioletti, Claims Representative,
Warwick, R.I. to the Providence District Office. The Union
requests that Ms. Prioletti be informed that she does not have to
report to Providence until we complete bargaining on this issue.
My negotiating team may consist of an employee from each Branch
Office and myself.
At this meeting, or if possible prior to the meeting, we
request that information regarding the proposed transfer be made
available to us. Please note that Section 7114(b) of the Civil
Service Reform Act (Public Law 95-454 Oct. 13, 1978) requires you
to furnish us with information needed in order to negotiate.
Specifically, we request the statistical data which you have
compiled which concluded the change in personnel policy that
required the involuntary transfer of a Claims Representative.
Since this change regarding involuntary transfers is a reversal
from past practices, we wish to know any and all concrete
justifiable reasons why this change is necessary and also that
criteria you have been using to arrive at who will be forced to
transfer.
At the meeting, per Section 7106(b) of the Civil Service Reform
Act, we also wish to bargain on the selection procedures that you
will observe and the impact on other employees that may be
affected if a change is made at a later date.
15. Fenton's Meetings on March 3 and 4 with Morenon
a. There is a dispute as to precisely what was said at these
meetings but I am satisfied, based on the credited testimony of Fenton,
that the entire focus of the meeting was on Respondent's decision to
involuntarily transfer an employee to Providence and Respondent's
implementation of that decision by selecting Prioletti. Thus, this
explains why Morenon was questioning why anyone had to have been
transferred from Warwick (Tr. 160, lines 6-8, Tr. 162 lines 23-24), and
asking for statistical information (Tr. 160) to justify that decision.
b. I also am satisfied, based on the credited testimony of Fenton,
and having been reviewed Morenon's testimony that the Union-- because it
was contesting the decision to transfer Prioletti-- never really made a
specific request to bargain about the impact and implementation of
Respondent's decision. Clearly, the memorandum of February 24 does not
mention impact and implementation and the meeting with Morenon did not
produce any additional evidence of help to the General Counsel's case.
The testimony of Morenon was full of inconsistencies and I cannot credit
her. However, if I were to accept her statement that "I wasn't
discussing Irene Prioletti at that meeting," and "the meeting was not
about Irene (Tr. 72), I certainly would have to find that she did not
orally request bargaining on the impact of Irene's transfer. But the
truth is that Irene Prioletti was the subject of the meeting, or as
Morenon eventually agreed, the "two issues were running along at the
same time" and "you can't separate her out totally from this whole issue
(of involuntary transfers), because she is in fact the one who was
chosen" (Tr. 84, line 7-19).
c. Fenton and Morenon also discussed Prioletti's grievance. The
following excerpt from Fenton's testimony, in response to a question by
Respondent's counsel is pertinent:
Q. Did you also deal with Sarah Morenon on the grievance?
A. Yes, I did. And things were going like at the same time;
and I didn't have it explained to me that they were trying to
separate one thing from another. So I thought it all had to do
with this-- the grievance on Irene.
I told her-- I remember telling her, I said, "Well, if I go
through this thing again, what am I going to do then? Tell Irene
she doesn't have to go, and then go pick somebody else. And
they're going to say they don't have to go." I said "I had the
same problem with the reassignment of Paul Tetrault, when I made
that decision."
And the supervisor at that time was David Gelotte, who's now a
supervisor in the Pawtucket office. And he was told to make a
decision, and I said, "It's going to have to stick; because
you're picking a person that can do the job, and can do a good
job, and might not necessarily want to go, and do that."
And I do not feel that there was any way-- at least I did not
get the drift or impression that somebody wanted to sit down and
go for things for the future. I believed it was all pertaining to
this one reassignment with Irene. And nothing had come forward
before the decision was made. And once the decision was made, I
wasn't going to go back over it again. I felt I had the
guarantees and the rights outlined in the contract, and I could
make those decisions.
According to Fenton he was surprised and confused that he was
receiving all these questions after a decision had been made, rather
than before (Tr. 160-162). There is no dispute that during these
meetings Morenon attempted to persuade Fenton to delay Prioletti's
reassignment.
16. Fenton's Written Replies to the Grievance and the Request to
Bargain
a. On March 4, Fenton responded to Prioletti's grievance saying that
her reassignment was not subject to bargaining (Resp. Exh. No. 8).
b. On March 4, Fenton replied to Morenon's request of February 24,
summarized what he regarded as the issues and provided a response (G.C.
Exh. No. 4). Essentially Fenton's position was that involuntary
transfers were not subject to bargaining. This memorandum made no
reference to bargaining about future transfers. In view of my
conclusions herein, a more detailed recitation of Fenton's memo is
deemed unnecessary. Upon receipt of Fenton's response, Morenon took no
further action. The unfair labor practice charge in Case No. 1-CA-20202
was filed on April 29.
17. Impact of the Reassignment on Prioletti
On March 8 Prioletti reported for duty in Providence where she has
found the work to be more difficult and time consuming and her work area
to be less spacious. Through March she paid $3.00 per day for parking
and thereafter $40.00 per month. In Warwick she had free parking.
Since coming to Providence, Prioletti has used more such leave than
before but she admitted that her ill effects were her own personal
reaction to the general working conditions.
As noted above, her commuting time is a good 20 minutes compared to 10
minutes in Warwick.
18. Status of the Grievance (Resp. Exh. No. 8)
Following a Step Two decision by Fenton on April 1, a Step Three
Decision by Area Director Barry was issued on May 5. Thereafter, on
June 9, a Step Four decision was issued by Assistant Regional
Commissioner Patrick J. O'Connor, Jr. At each step the grievance was
denied.
Prioletti was represented by the Union throughout the processing of
the grievance. By letter dated May 20, 1982 from Union President Percy
O. Daley, Jr. to Mr. O'Connor, the Union (1) challenged Fenton's
original decision that he needed an experienced claims representative in
Providence, (2) protested the criteria used to select Prioletti, (3)
cited the adverse impact of the transfer on Prioletti, and (4) requested
as a remedy her reassignment to Warwick. Essentially, Daley's letter
contains much of the evidence adduced by the General Counsel in the case
before me with respect to paragraph 8(b) of the Complaint. The primary
difference between the two proceedings is that the grievance case
challenges the Respondent's substantive decision on the merits and the
unfair labor practice case challenges Respondent's alleged failure to
fulfill its bargaining obligations to the Union with respect to impact
and implementation of the decision.
A. Whether Section 7116(d) is a bar to this proceeding.
B. Whether Respondent changed a condition of employment when
Prioletti was involuntarily reassigned to Providence.
C. Whether Respondent provided the Union with reasonable and adequate
notice of its decision to reassign a Warwick claims representative to
Providence.
D. Whether the Union requested the Respondent to bargain about the
impact and implementation of its decision, and if so, was the request
timely.
E. Whether Respondent, by its agent Fenton, changed Prioletti's
assignment from Title II to Title XVI in order to retaliate against her
for having engaged in protected activity, namely, stating an intent to
file a grievance.
A. Applicability of Section 7116(d)
Respondent contends that the allegation that it changed working
conditions on March 8, 1982 by involuntarily reassigning Prioletti to
Providence is an issue barred from being raised in an unfair labor
practice proceeding by the language of Section 7116(d) of the Statute.
Section 7116(d) of the Statute provides, in pertinent part, " . . .
issues which can be raised under a grievance procedure may in the
discretion of the aggrieved party be raised under the grievance
procedure or as an unfair labor practice under this section, but not
under both procedures." The application of Section 7116(d) has been
narrowly construed, with the objective of preventing relitigation of
issues after an aggrieved party has made a free choice of procedures.
In Internal Revenue Service, Chicago, Illinois, 3 FLRA No. 75, 3 FLRA
478 (1980) the Authority sustained the Judge's dismissal of allegations
concerning a respondent's refusal to provide information, where the
exclusive representative had already attempted to obtain the information
through a grievance filed by two employees concerning a disciplinary
suspension. In its decision the Authority stated that "this case does
not involve an unfair labor practice allegation that an Agency has
refused to provide an exclusive bargaining representative necessary
information to carry out its bargaining responsibility and an individual
has raised the same issue in a grievance." Stated differently, the
foregoing seems to express a recognition by the Authority that the same
set of facts may give rise to separate and distinct legal issues: i.e.
an employee's request for information necessary to process his or her
grievance, and the exclusive representative's independent right, by
contract or statute, to receive the same information in discharge of its
overall bargaining responsibility. This conclusion seems to be borne
out by the Authority's decision in Internal Revenue Service, Western
Region, San Francisco, California, 9 FLRA No. 57, 9 FLRA 480 (July 16,
1982). There, the Authority concluded that a complaint was not barred
by Section 7116(d) where the issue raised in the unfair labor practice
proceeding as to whether the Union was entitled to information requested
in order to fulfill its duties as exclusive bargaining representative of
the employees in the bargaining unit was not the same issue as that
raised by an employee who was asserting his own right to such
information as the appellant in a statutory appeals proceeding before
the Merit Systems Protection Board (MSPB). The Authority agreed with
Judge William Naimark, based on the facts presented, that the Union's
right to the information could not have been raised or decided in that
particular MSPB proceeding. /5/
As noted in my findings of fact, the issue presented in Prioletti's
grievance is whether Respondent had a right to reassign her from Warwick
to Providence.
The grievance material clearly shows that Prioletti, and the Union on
her behalf, were challenging Respondent's initial decision (1) to fill a
vacancy in Providence, (2) to transfer an experienced employee to
Providence from another office, (3) to determine that Warwick was the
office from which an employee would be reassigned, and (4) to select
Prioletti as the employee to be reassigned. The grievance was filed on
February 24 after Respondent implemented its selection procedures by
choosing Prioletti but before the effective date of her reassignment.
The grievance challenges Respondent's decision, whereas the Complaint
challenges Respondent's implementation of its decision without
bargaining with the Union and requests a bargaining order remedy not
available in the grievance case. Furthermore, the grievance is confined
to Prioletti's reassignment, whereas the Complaint also alleges that
Respondent changed her job duties in Providence from Title XVI work to
Title II as a means of retaliation because she filed a grievance. In my
opinion the issues which have to be decided in this unfair labor
practice proceeding are different from those involved in the grievance.
The fact that in both proceedings the requested remedy includes a
rescission of Prioletti's reassignment does not bar consideration and
resolution of the issues raised in this unfair labor practice
proceeding. Accordingly, I conclude that Section 7116(d) does not bar
this proceeding.
However, with respect to the General Counsel's request for a status
quo remedy, i.e. the rescission of Prioletti's transfer, it is my
opinion that I would be barred by Section 7116(d) from granting such
remedy, if I were to find a statutory violation. Prioletti is already
seeking that remedy in a grievance proceeding. Even if Prioletti were
not requesting such remedy, its mere availability as an "attendant
remedy" in the grievance proceeding would preclude the granting of such
remedy here. /6/
B. The Alleged Past Practice of Involuntary Reassignments
The General Counsel's point seems to be that, in fact, there was an
absence of a past practice and therefore the reassignment of Prioletti
was a change in conditions of employment. My own view is that whenever
an agency involuntarily reassigns an employee from one city to another
city, it is making a change in conditions of employment of that person.
The existence of a past practice is relevant, not to whether the
reassignment constitutes a "change", but rather, whether the Union has
acquiesced in the change and waived its right to bargain about the
change. Therefore, an examination of past practice is not confined to
an agency's actions but must also consider the union's reactions
thereto.
In the present case, Respondent was only able to recall three
specific individuals, none of whom were claims representatives, who were
involuntarily reassigned to another office. One occurred in 1972 and
two occurred in 1977. The testimony with respect to 1971 was too vague
to accept and, in any event, appears to be prior to the Union's
representation of employees. This doesn't strike me as being very
persuasive evidence of a "practice" when you consider that, at the
present time, there are between 500 and 600 claims representatives in
the Boston region constituting a third of the entire staff. Therefore,
regardless of how the Union reacted in these instances, I am compelled
to conclude that Respondent's evidence is insufficient to establish that
a past practice did in fact exist. In any event, Respondent also has
not shown that the Union has at anytime made a clear and unequivocal
waiver of its right to bargain about the impact and implementation of
involuntary reassignments of employees. It follows, therefore, that
Respondent had an obligation to notify the Union about its decision to
reassign a Warwick employee to Providence so that the Union would have a
reasonable opportunity to request bargaining concerning the impact and
implementation of that decision. /7/ The Complaint does not allege that
Respondent has an obligation to bargain about the decision itself.
Clearly, Respondent has a right under Section 7106(a) and Article 30 of
its contract to make decisions with respect to the reassignment of
employees without prior bargaining on its substantive decision.
C. Whether Respondent Provided the Union with Reasonable and Adequate
Notice
The employees affected by Respondent's decision were located in the
Warwick office. Steward John Tworog was the Union's official
representative in that office and he was informed by O'Malley on January
13, 2 weeks before Fenton came to Warwick to meet with the staff, and
about 3 weeks before the eventual decision to select Prioletti. I
conclude that notice to Tworog was notice to the Union and that such
notice was sufficiently in advance of the implementation of the decision
so as to provide the Union with a reasonable opportunity to request
bargaining. In any event, Tworog did tell Area Vice President
Castellina as evidenced by Tworog's testimony and Castellina's January
21 letter to the FLRA Regional Office (Resp. Exh. No. 5). So even if,
for some reason, Tworog was the wrong person to notify, its clear that
the Area Vice President had actual knowledge. Finally, it is undisputed
that Providence steward Morenon was notified on January 28 the week
before Fenton implemented his decision to select someone from Warwick,
absent a volunteer. Even notice precisely as short as this has been
held to be adequate by the Authority. /8/ Accordingly, I conclude that
Respondent fulfilled its statutory obligation to provide the Union with
reasonable and adequate notice of its decision to reassign an employee,
involuntarily if necessary, from Warwick to Providence.
D. Which Decision or Decisions by Respondent are at Issue
Respondent made a series of decisions, each implementing a previous
decision, all of which ended up with Irene Prioletti's transfer. The
first and basic decision was to fill a vacancy in Providence.
Respondent obviously had the option of leaving the position vacant
and/or hiring someone from another location. This first decision was
implemented by making a second decision, namely to transfer an employee
from Warwick. Respondent could have selected an office other than
Warwick. Implementation of the foregoing decision required Respondent
to decide upon some method of selecting a person from Warwick. Thus,
the third decision was Fenton's determination that he needed an
experienced person whom he would personally select, absent any
volunteers. Implementation of this decision occurred a week later when
Fenton selected Irene Prioletti.
Thereafter, on February 10, Fenton informed Prioletti that his decision
to select her also involved a change from Title XVI work to Title II.
Following Prioletti's protest, Fenton made another decision: he
reassigned Paul Tetrault to a Title II position with the result that
Prioletti was no longer required to change to Title II work.
All of the foregoing decisions are being challenged by the Union,
either in the grievance case or in this unfair labor practice
proceeding, or in both. At issue is whether the Union made a timely
request to bargain and, if so, with respect to which decision by
Respondent.
E. The Union's Request to Bargain
Under Section 7106(a) of the Statute, an agency has a reserved
management right to assign (and reassign) employees. A Union has a
right, under Section 7106(b)(2) to request bargaining concerning
procedures used by an agency in exercising its management rights. As
applied to the instant case, this could mean that a Union might request
to bargain about the criteria to be used in selecting a transferee even
though the decision still would be the agency's. A Union also has a
right under Section 7106(b)(3) to request bargaining concerning the
impact on employees adversely affected by the exercise of a management
right. Precisely what proposals the Union might have made in
Prioletti's case is unclear.
Unfortunately, the Union delayed submitting a request to bargain
until February 24. By that time, the Respondent had implemented its
decision to transfer a Warwick employee by selecting Irene Prioletti on
February 3. The General Counsel, in an excellent brief, argues that the
Union "should not be prejudiced" by its failure to make a formal request
to bargain earlier. On this particular point, however, the facts
support Respondent's position that the Union simply neglected to make a
timely bargaining request and thereby lost an opportunity to have any
input into the selection of a transferee before that decision was made.
When steward Tworog was originally notified on January 13 of
Respondent's decision to reassign a Warwick employee to Providence he
reacted by requesting case statistics. It would appear that he desired
the information in order to decide whether to challenge the need for any
employee to be transferred. Whatever his reason, he failed to follow
this up and a request to bargain, even though he inquired of O'Malley
where he should appeal the decision, and was referred to Fenton.
The evidence also shows that Tworog notified Area Vice President
Castellina and urged him to request bargaining, but no request was made
by him either. Since Castellina had no contact with either Fenton or
O'Malley it hardly can be said that he was intimidated by them. All
that was required was to send Fenton a letter requesting bargaining.
By the time Fenton conducted his January 26 meeting it was already
too late to bargain about the decision to reassign a Warwick employee.
However, in the event that no one volunteered, it would not have been
unreasonable to formally request bargaining on the criteria to be
utilized in selecting an involuntary transferee. The closest that the
Union came to doing this were a few questions about seniority by Tworog
in the middle of a staff meeting. Tworog testified that he did not
expect anyone to volunteer and, yet, he still did not submit a formal
request after the meeting. As a result, Fenton made his decision on
February 3 and selected Prioletti. By this time, the Union had lost an
opportunity to have any formal input into the selection process.
Although the matter is not free from doubt, it may be argued that the
Union still had an opportunity to make a timely request to bargain
concerning the impact of this decision on Prioletti.
When Fenton told Morenon about his trip to Warwick all she did was
ask for information, and not request bargaining. (See G.C. Exh. No. 3).
Since Prioletti was not from her office perhaps she felt that this was
Tworog's responsibility. Whatever her reason, she waited until February
24 (3 weeks after Prioletti's selection) to finally submit a bargaining
request on the same day Prioletti filed her grievance, and the Union
prepared its original unfair labor practice charge.
In my opinion, the Union's February 24 request to bargain was
untimely and therefore Respondent had no obligation to bargain about the
impact and implementation of its decision to transfer a bargaining unit
employee as alleged in paragraph 8 of the Complaint. In these
circumstances, I need not examine Fenton's response to the untimely
bargaining request and decide to what extent he may have been correct or
incorrect when he took the position that certain matters were not
bargainable. /9/
Assuming, arguendo, that the February 24 request to bargain was
timely with respect to any impact and implementation bargaining, I would
further find that nowhere in this document did the Union request to
bargain about the impact of Respondent's decision. Rather, careful
examination of the entire memorandum leads only to one conclusion: The
Union was challenging Respondent's "decision" to effect a transfer,
rather than requesting to bargain about the impact of that decision.
The words "impact and implementation" do not appear in the February 24
memorandum.
The testimony of Fenton and Morenon concerning their March 3 and 4
meetings, and Fenton's March 4 reply, disclose that the Union was still
fighting the basic decision to transfer Prioletti and its goal was to
temporarily delay the transfer while bargaining to reverse the decision.
Because the Union was concentrating on the basic decision itself, it
failed to present any specific proposals to Fenton regarding impact and
implementation, other than its last minute request to postpone the
effective date of the transfer. For these additional reasons I
recommend dismissal of Paragraph 8 of the Complaint in its entirety.
F. Whether Fenton Changed Prioletti's Duties from Title XVI to Title
II Because She Expressed an Intent to File a Grievance
Section 7116(a)(1) makes it an unfair labor practice to interfere
with, restrain, or coerce any employee in the exercise of any right
under the Statute. Filing a grievance has been held to be a protected
Statutory right. An agency also commits an unfair labor practice in
violation of Section 7116(a)(2) where it discriminates against an
employee with respect to his or her conditions of employment in order to
discourage membership in a labor organization. If the General Counsel
were able to establish that Respondent changed Prioletti's new job
duties from Title II to Title XVI because she expressed her intent to
file a grievance concerning her involuntary reassignment, I would be
prepared to find a violation of Section 7116(a)(2) and (1). Therefore,
the real issue in this case, and one that is not contained in the
grievance proceeding, is what motivated Fenton to offer the Title II
work to Tetrault after he had already made clear to Prioletti that her
reassignment to Providence would also include Title II work.
Respondent's answer to this question is that Fenton simply remembered
his promise to Tetrault during the February 10 meeting and, since
Prioletti claimed to be too old to learn the new computations, he
decided to follow through on this newly remembered promise. The fact
that Fenton had actually made a prior promise to Tetrault was confirmed
by Union steward Morenon. The fact that Prioletti objected to being
retrained for Title II work was confirmed by Union steward Tworog. To
get around this damaging evidence the General Counsel asserts that
Prioletti did not really mean what she said and Fenton knew she didn't
mean it.
I have reviewed Fenton's testimony very carefully and during the
hearing I particularly observed his demeanor as he responded to the
questions propounded by both counsel. He testified in a straightforward
and persuasive manner. From this I conclude that Fenton is a honest,
conscientious, hardworking individual whose testimony must be credited.
Illustrative of Fenton's honest and direct manner of dealing with people
is the way he explained his decision to select Prioletti. All he really
had to do was to say why he selected her but, in addition, he explained
why others had not been selected. Whether one agrees or not with his
reasons for not selecting these other employees, and apart from whether
it was discreet for him to be so candid, my point is that Fenton was
being very direct and honest with his employees.
Fenton was not sophisticated enough to realize that his statements would
be used against him at a later date. Essentially he picked Prioletti
because she was a good worker and had the experience he wanted. He also
had an idea she would like Title II work which, it seems to me at least,
would have softened the blow of being involuntarily transferred to an
office three miles closer to home, albeit a 10 minute longer ride.
Although Fenton had known Prioletti for years he obviously did not
expect her hostile and vehement reaction to his decision. She accused
him of trying to get rid of her, called him a "Hitler", and said he was
trying to dictate to people. To his surprise she objected to being
retrained for Title II work and this prompted him to recall his prior
experience with Tetrault and to tell her she had to report to Providence
and, hopefully, with a "better attitude." Prioletti's outburst caused
Fenton to caution her not to "lash out like that." The foregoing facts
are based on Prioletti's own description of the meeting and this all
occurred prior to the end of the meeting when any mention was made about
filing a grievance.
Fenton testified that his reason for approaching Tetrault was the
fact that he remembered his promise to him and because of Prioletti's
objection to changing to Title II. This way he would be giving Tetrault
a break and Prioletti would not have to be retrained. The General
Counsel suggests, as noted above, that Prioletti did not mean what she
said. Fenton, however, concluded she was serious. Considering her
vehement reaction as described above, I cannot conclude that Fenton's
conclusion lacked a reasonable basis in fact. I credit Fenton's
testimony and accept his explanation as to why he decided to assign
Title II work to Tetrault, rather than to Prioletti. As a result
Prioletti received a lateral transfer with no change of duties.
Accordingly, I reject the General Counsel's contention that the real
reason for this decision was the fact that Prioletti intended to file a
grievance and I recommend dismissal of this allegation in paragraph 7 of
the Consolidated Complaint. /10/
G. Ultimate Conclusions
In view of the foregoing, I find and conclude that Respondent has not
violated Section 7116(a)(1), (2), and (5) as alleged in the Consolidated
Complaint. Accordingly, I recommend that the Authority issue the
following:
That the Consolidated Complaint in Case Nos. 1-CA-20129 and
1-CA-20202 be, and they hereby are, dismissed.
/1/ General Counsel's Motion to Correct the Transcript, to which no
opposition has been filed, has been reviewed and is hereby granted. See
Appendix.
/2/ A credibility issue exists as to whether Fenton had informed
Morenon prior to January 28 about his decision to transfer a Warwick
employee to Providence. Fenton's testimony (Tr. 140, 141) was credible
to the extent that I believe he had a conversation with someone about
the matter, but its not clear that his conversation was with Morenon or
at what time. Morenon's testimony, on other hand, was not fully
explored at the hearing. In my opinion resolution of this credibility
issue is not required because both Tworog and Castellina knew of
Fenton's proposed decision prior to the January 26 meeting.
/3/ Prioletti actually lived closer to Providence than Warwick (five
compared with eight miles) but because of traffic conditions her
commuting time was changed from 10 to a good 20 minutes.
/4/ This finding, although denied by Prioletti on direct and cross
examination, is based on the credited testimony of Fenton (Tr. 147) and
the corroborative testimony of Robert Barry to whom Prioletti later
admitted making the statement to Fenton (Tr. 205-206). Also, steward
Tworog testified that she said "something along those lines" (Tr. 224).
Prioletti's version is that she merely said she would need retraining
but, based upon my observation of Prioletti during this crucial
testimony, I am unable to accept her toned-down version that she merely
stated she'd "need retraining."
/5/ Cf. Boston District Office, Internal Revenue Service, 6 A/SLMR
534 (October 13, 1976) where the Assistant Secretary of Labor rejected
the Administrative Law Judge's conclusion that an unfair labor practice
proceeding was the proper forum in which an exclusive representative's
rights could be litigated. The Assistant Secretary directed his
attention specifically to the nature of the issue being raised, namely
the Union's right to information relative to an adverse action in which
it was representing the aggrieved employee, and held that this issue was
pursued by the Union and litigated before the arbitrator in an advisory
arbitrating hearing. Thus, the Union was held to have "incorporated
with the merits of the case (before the arbitrator) its asserted right
to material deemed necessary and relevant to its role as exclusive
representative . . . " Accordingly, the Assistant Secretary held that
the complaint was barred by Section 19(d) of Executive Order 11491, as
amended.
/6/ See Department of the Interior, Bureau of Reclamation, Yuma
Projects Office, Yuma, Arizona, 4 FLRC 486, in which the Federal Labor
Relations Council recognized the distinction between union's rights (as
contrasted with employees' rights), and agreed with the Assistant
Secretary that the union's rights could be litigated in the unfair labor
practice proceeding, but disagreed with and set aside the Assistant
Secretary's remedial order to the extent that it was barred by Section
19(d) of the Executive Order. Thus, the Council held that the Assistant
Secretary's remedies "may extend only to remedies which could not have
been invoked in an appeals procedure."
/7/ Federal Railroad Administration, 4 A/SLMR 497 and cases cited
therein; Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, 8 A/SLMR 550.
/8/ See U.S. Department of Defense, Department of the Army,
Headquarters, Fort Sam Houston, 8 FLRA No. 112, 8 FLRA 623 (1982), where
notice was given on Thursday that employees would be given their RIF
notice the following Monday.
/9/ The General Counsel contends that Fenton pursued a course of
conduct charted without reference to the Union, narrowly limited the
Union's opportunity for input, and demonstrated no intention of
bargaining with the Union (Brief, p. 13). I am not persuaded that the
credited facts to support this contention. Moreover, the General
Counsel's reliance on Scott Air Force Base, 5 FLRA No. 2 is misplaced
because there, unlike here, the Union made a timely bargaining request
on May 9, thus requiring the Judge and the Authority to reach the next
question, namely, whether the agency's response thereto amounted to a
refusal to bargain.
/10/ Cf. United States Marine Corps, Marine Corps Logistics Base,
Barstow, California, 5 FLRA No. 97 (1981) where, unlike here, the Judge
found the employee's protected activity to be the real reason for his
discharge, and the Authority adopted the Judge's decision.
Daniel H. Green, and James Donovan, For the Respondent
Stephen Castellina, For the Charging Party
Gerard M. Greene, Esq., For the General Counsel
(TABLE OMITTED)
23 FLRA-ALJ; CASE NO. 3-CA-20563 DECEMBER 7, 1982
BUREAU OF THE CENSUS, U.S., DEPARTMENT OF COMMERCE, RESPONDENT, AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782, AFL-CIO,
CHARGING PARTY
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.SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980 AND VOL. 46,
NO. 154, AUGUST 11, 1981, 5 C.F.R.CHAPTER XIV, PART 2411, ET SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON MAY 11, 1982, BY LOCAL
2782, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREINAFTER
CALLED THE UNION OF AFGE), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED
ON AUGUST 20, 1982, BY THE ACTING REGIONAL DIRECTOR FOR REGION III,
FEDERAL LABOR RELATIONS AUTHORITY, WASHINGTON, D.C. THE COMPLAINT
ALLEGES THAT THE BUREAU OF CENSUS, U.S. DEPARTMENT OF COMMERCE
(HEREINAFTER CALLED THE RESPONDENT), VIOLATED SECTION 7116(A)(1) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (HEREINAFTER CALLED
THE STATUTE OR ACT), BY VIRTUE OF THE ACTIONS OF TWO SUPERVISORS IN
MAKING STATEMENTS TO TWO UNION STEWARDS WHICH TENDED TO INTERFERE WITH,
RESTRAIN, AND COERCE SUCH STEWARDS IN THE EXERCISE OF THE RIGHTS
ACCORDED THEM BY SECTION 7102 OF THE ACT TO ASSIST A LABOR ORGANIZATION
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL. /1/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON OCTOBER 13, 1982, 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 RESPONDENT AND THE GENERAL
COUNSEL SUBMITTED POST HEARING BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
/2/
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, THE CHARGING PARTY HEREIN, IS THE EXCLUSIVE REPRESENTATIVE
OF A UNIT OF RESPONDENT'S EMPLOYEES WORKING AT THE BUREAU OF CENSUS,
SUITLAND, MARYLAND.
MR. JOSE TALAVERA-TOSO, III, HEREINAFTER REFERRED TO AS MR.
TALAVERA, HAS BEEN EMPLOYED BY RESPONDENT FOR APPROXIMATELY 5 YEARS AS A
COMPUTER PROGRAMMER/ANALYST. FOR THE PAST YEAR MR. TALAVERA HAS BEEN
ASSIGNED TO THE COUNTY BUSINESS PATTERNS BRANCH, ECONOMIC SURVEYS
DIVISION, WHICH IS RESPONSIBLE FOR PROCESSING AND PUBLISHING ECONOMIC
DATA FOR ALL 3,100 COUNTIES IN THE UNITED STATES. MR. TALAVERA BECAME A
UNION STEWARD IN MAY 1981.
AS A UNION STEWARD, MR. TALAVERA WAS RESPONSIBLE FOR PROCESSING
EMPLOYEES' COMPLAINTS AND GRIEVANCES AGAINST RESPONDENT. IN SUCH
CAPACITY HE USUALLY SPENT 2 TO 3 HOURS PER WEEK ON UNION ACTIVITY FOR
WHICH HE WAS ACCORDED OFFICIAL TIME. /3/ PRIOR TO LEAVING HIS WORK
STATION TO PERFORM HIS UNION ACTIVITIES, MR. TALAVERA WOULD FIRST INFORM
HIS SUPERVISOR THAT HE WAS GOING AND THE AMOUNT OF TIME HE EXPECTED TO
BE AWAY FROM HIS DESK. AT THE END OF THE WEEK HE WOULD SUBMIT A PRINTED
FORM TO HIS SUPERVISOR INDICATING THE AMOUNT OF TIME SPENT ON HIS
REPRESENTATIONAL ACTIVITIES. PRIOR TO APRIL OF 1982, MR. TALAVERA'S
REQUESTS FOR OFFICIAL TIME TO PERFORM UNION ACTIVITIES HAD NEVER BEEN
DENIED BY HIS IMMEDIATE SUPERVISOR, MR. STANLEY HYMAN.
ON THE MORNING OF APRIL 28, 1982, MR. TALAVERA LEFT A NOTE WITH MR.
HYMAN'S SECRETARY WHEREIN HE INFORMED MR. HYMAN, IN PERTINENT PART, AS
FOLLOWS:
PER ARTICLE 4.4, SECTION B, THE UNION STEWARD IS ENTITLED TO HAVE
OFFICIAL TIME TO FILE
GRIEVANCES AND APPEALS.
I SHALL BE AWAY FILING APPEALS THRU THE MSPB FOR AN UNDEFINED PERIOD
OF TIME AT LEAST 3
DAYS.
SHORTLY AFTER LEAVING THE ABOVE QUOTED NOTE, MR. TALAVERA WAS CALLED
INTO MR. HYMAN'S OFFICE AND INFORMED THAT DUE TO THE PRESS OF BUSINESS,
I.E., APRIL 30TH DEADLINE FOR COMPLETING THE ECONOMIC REVIEW OF THE
STATE OF OKLAHOMA, HE, MR. HYMAN, WAS DENYING MR. TALAVERA'S REQUEST TO
TAKE 3 DAYS OFF ON OFFICIAL TIME TO CONDUCT UNION BUSINESS. MR. HYMAN
FURTHER INFORMED MR. TALAVERA THAT HE WOULD, HOWEVER, ALLOW HIM TO TAKE
ONE HOUR PER DAY OFF ON OFFICIAL TIME TO PERFORM HIS UNION DUTIES ON
APRIL 28, 29, AND 30TH. DESPITE MR. TALAVERA'S PLEA THAT ONE HOUR PER
DAY WAS NOT ENOUGH TIME TO PERFECT THE MANY MSPB APPEALS HE WAS ASSIGNED
TO PROCESS, MR. HYMAN REFUSED TO RECONSIDER HIS DECISION. /4/
FOLLOWING HIS CONVERSATION WITH MR. HYMAN, MR. TALAVERA RETURNED TO
HIS DESK WHICH WAS LOCATED IN A LARGE ROOM OUTSIDE MR. HYMAN'S OFFICE
AND PUT A TELEPHONE CALL INTO MR. EDWARD HANLON, THE UNION'S CHIEF
STEWARD. UPON REACHING MR. HANLON, MR. TALAVERA REPORTED THE RESULTS OF
THE MEETING WITH MR. HYMAN AND HIS INABILITY TO SECURE 3 DAYS OF
OFFICIAL TIME TO PERFORM THE MSPB APPEALS WORK WHICH HAD BEEN PREVIOUSLY
ASSIGNED TO HIM BY MR. HANLON. MR. HANLON TOLD MR. TALAVERA THAT HE
WOULD COME UP LATER IN THE DAY AND DISCUSS THE MATTER WITH MR. HYMAN.
AROUND NOONTIME ON APRIL 28, 1982, MR. HANLON CAME UP TO MR.
TALAVERA'S DESK WHICH, AS NOTED ABOVE, WAS LOCATED IN A LARGE ROOM
OUTSIDE MR. HYMAN'S OFFICE, SPOKE TO HIM BRIEFLY, AND THEN WENT INTO MR.
HYMAN'S OFFICE AND INTRODUCED HIMSELF. THEREAFTER, MR. HYMAN AND MR.
HANLON DISCUSSED THEIR MUTUAL PROBLEMS, I.E., THE UNION'S NEED TO
PERFECT SOME 700 MSPB APPEALS IN A SHORT PERIOD OF TIME AND MR. HYMAN'S
APRIL 30TH DEADLINE FOR COMPLETING THE REPORT ON THE STATE OF OKLAHOMA.
DURING THE COURSE OF THE DISCUSSION, ACCORDING TO THE TESTIMONY OF MR.
HANLON, MR. HYMAN, SPEAKING IN A LOUD VOICE, INFORMED MR. HANLON THAT:
"WELL, I HAVE THIS DEADLINE; AND MY DEADLINE IS OCTOBER 1ST. I'VE
ALREADY MISSED MY
DEADLINE ONCE. IT HAS BEEN MOVED BACK TO OCTOBER 1ST, AND I'M GETTING
A LOT OF PRESSURE FROM
MY BOSS. I'M GETTING PRESSURE FROM MY DIVISION. I HAVE TO DO THIS ON
TIME, AND JOSE OUGHT TO
DO HIS SHARE OF THE WORK;" THAT ALL THE PEOPLE IN THE OFFICE WERE
HAVING TO DO JOSE'S SHARE OF
THE WORK BECAUSE JOSE WAS OFTEN INVOLVED IN UNION ACTIVITIES. "I'M
SICK AND TIRED OF HIS
UNION ACTIVITY. OTHER PEOPLE IN THE OFFICE ARE SUFFERING BECAUSE OF
JOSE," AND THAT ALL OF
THE PROJECTS WERE GETTING LATE BECAUSE OF JOSE'S NOT BEING AT HIS
DESK DOING HIS JOB LIKE HE
IS SUPPOSED TO; THAT IT WAS FINE THAT WE HAD A UNION BUT WE WERE
HERE TO DO OUR WORK AND THAT
COMES FIRST; THAT HE WAS SORRY BUT THAT'S THE WAY IT WAS.
SHORTLY AFTER, MR. HYMAN MADE THE ABOVE QUOTED ALLEGED REMARKS, MR.
TALAVERA ENTERED THE OPEN DOOR TO MR. HYMAN'S OFFICE, STATED THAT HE HAD
HEARD MR. HYMAN'S STATEMENT AND ASKED IF HE COULD JOIN THE MEETING.
THEREAFTER, MR. TALAVERA ASKED MR. HYMAN WHY HE WAS SAYING THESE THINGS
AND POINTED OUT THAT HE WAS ALWAYS WILLING TO WORK LATE OR ON WEEKENDS
TO GET THE WORK OUT. MR. TALAVERA FURTHER POINTED OUT THE NEED TO HAVE
TIME TO CONTACT THE EMPLOYEES WHO WERE BEING RIFFED. ACCORDING TO MR.
HANLON, MR. HYMAN REPLIED THAT HE "DIDN'T GIVE A S-- T." FURTHER,
ACCORDING TO MR. HANLON, MR. HYMAN WENT ON TO STATE AS FOLLOWS:
HE WAS SICK AND TIRED OF US COMING IN THERE AND TRYING TO GET AWAY
WITH THINGS. HE WAS
SICK AND TIRED OF JOSE'S UNION ACTIVITIES; THAT HE HAD BEEN FLEXIBLE
IN THE PAST AND HE WASN'T
GOING TO BE ANY MORE; THAT WE HAD TO LEARN THAT OUR MAIN FUNCTION
WAS THAT WE WERE HERE TO
WORK; THAT THAT WAS NUMBER ONE PRIORITY. I THINK THE PHRASE WAS HE
WAS TIRED OF US TRYING TO
GET AWAY WITH MURDER.
ACCORDING TO THE TESTIMONY OF MR. TALAVERA, NOTHING HAPPENED AT THE
BEGINNING OF THE MEETING BETWEEN MR. HANLON AND MR. HYMAN.
SUBSEQUENTLY, ABOUT 3 OR 4 MINUTES LATER HE, MR. TALAVERA, BEGAN HEARING
VOICES WHICH BECAME LOUDER AND LOUDER. FINALLY, HE HEARD MR. HYMAN
STATE:
THAT HE WAS SICK AND TIRED OF THE EMPLOYEES HAVING TO DO-- THE
EMPLOYEES WERE SICK AND
TIRED OF JOSE'S WORK, MY WORK; AND HE WAS SICK AND TIRED OF ME
SPENDING ALL MY TIME DOING
UNION WORK; THAT I SHOULD BE AT MY DESK WORKING; THAT THE EMPLOYEES
WERE SICK AND TIRED OF
DOING ALL MY WORK; THAT HE WAS SICK AND TIRED OF THE UNION COMING IN
AND GETTING AWAY WITH
THINGS.
FURTHER ACCORDING TO MR. TALAVERA, THE DOOR TO MR. HYMAN'S OFFICE WAS
OPEN AND THE OTHER PEOPLE PRESENT IN THE AREA WHERE HE WORKED, NAMELY,
MS. HELEN CORLEY AND MS. VESTA BLYE, STOPPED WORKING AND BEGAN LOOKING
AT HIM. "IT WAS OBVIOUS THAT THEY HAD ALSO HEARD IT, (MR. HYMAN'S
REMARKS), SO I JUST LOOKED AT THEM AND SHOOK MY HEAD AND PROCEEDED TO
JOIN MR. HANLON AND MR. HYMAN."
THE ENSUING DISCUSSION BETWEEN MR. HYMAN, MR. TALAVERA, AND MR.
HANLON WAS CONFINED TO THE PROBLEMS FACING THE RESPECTIVE PARTIES, I.E.
HYMAN'S NEED TO GET THE WORK OUT AND THE UNION'S NEED TO CONTACT THE
EMPLOYEES INVOLVED IN THE RIF. WHEN, MR. TALAVERA TOLD HIM, MR. HYMAN,
THAT HE ALWAYS MADE UP THE WORK HE MISSED BECAUSE OF HIS UNION
ACTIVITIES LATER IN THE DAY OR ON WEEKENDS, MR. HYMAN STATED THAT IT WAS
"TOUGH S-- T." ". . . THAT HE WAS SETTING UP A NEW POLICY AND HE HAD TO
FINISH THE WORK BECAUSE HE WAS UNDER PRESSURE AND THAT THE EMPLOYEES
WERE TIRED OF DOING MY WORK."
WITH REGARD TO THE CIRCUMSTANCES SURROUNDING MR. TALAVERA'S ACTION IN
BARGING INTO THE MEETING BETWEEN MR. HANLON AND MR. HYMAN, I.E. MR.
HYMAN'S LOUD STATEMENT ABOUT MR. TALAVERA'S UNION ACTIVITY AND THE FACT
THAT OTHER EMPLOYEES WERE DOING HIS WORK, BOTH MS. BLYE AND MS. CORLEY,
WHO SIT AS CLOSE OR CLOSER TO THE DOOR OF MR. HYMAN'S OFFICE AS MR.
TALAVERA AND WERE HAVING LUNCH AT THEIR DESKS AT THE TIME OF THE
CONVERSATION BETWEEN MR. HANLON AND MR. HYMAN, TESTIFIED THAT THEY HAD
NOT HEARD ANY VOICES COMING FROM MR. HYMAN'S OFFICE ON THE DAY IN
QUESTION. ADDITIONALLY, MR. ROBERT RINARD, WHOSE OFFICE IS SEPARATED
FROM MR. HYMAN'S OFFICE BY A THIN PARTITION, TESTIFIED THAT ON THE DATE
IN QUESTION HE WAS HAVING LUNCH IN HIS OFFICE AND HEARD NO LOUD VOICES
EMANATING FROM MR. HYMAN'S OFFICE.
MR. HYMAN DENIED TALKING IN A LOUD VOICE OR MAKING THE STATEMENTS
ATTRIBUTED TO HIM BY MR. HANLON AND MR. TALAVERA. ACCORDING TO MR.
HYMAN THE ENTIRE CONVERSATION BETWEEN HIM, MR. HANLON, AND MR. TALAVERA
WAS CONFINED TO A DISCUSSION OF THE PRESSURES HE WAS UNDER TO GET HIS
WORK OUT BY A CERTAIN DATE AND THE UNION'S NEED TO CONTACT THE EMPLOYEES
INVOLVED IN THE RIF BY A CERTAIN DATE. MR. HYMAN COULD NOT RECALL USING
THE EXPRESSION "TOUGH S-- T" WHEN TOLD OF THE UNION'S PROBLEMS
CONCERNING THE DEADLINE IMPOSED UPON THEM FROM MSPB.
MS. JENNIFER MAKOWELSKI HAS BEEN EMPLOYED BY RESPONDENT AS A
SECRETARY FOR APPROXIMATELY 8 YEARS. ON OR ABOUT APRIL 9, 1982, SHE
BECAME UNION STEWARDESS FOR (1) THE COMPUTER MAINTENANCE BRANCH OF THE
COMPUTER OPERATIONS DIVISION AND (2) THE TECHNICAL SERVICES DIVISION.
FROM OCTOBER 1981 TO APPROXIMATELY THE FIRST WEEK IN MAY 1981, MR.
JOSEPH SFERRELLA, ASSISTANT DIVISION CHIEF FOR COMPUTER OPERATIONS, WAS
HER SUPERVISOR. ALTHOUGH NOT CLEAR FROM THE RECORD, IT APPEARS THAT AT
LEAST DURING THE MONTH OF APRIL 1982, MR. SFERRELLA WAS ALSO ACTING AS
BRANCH CHIEF, HARDWARE SUPPORT OPERATIONS.
ACCORDING TO THE TESTIMONY OF MS. MAKOWELSKI, ON OR ABOUT APRIL 27,
1982, SHORTLY AFTER SHE HAD BECOME A UNION STEWARDESS, SHE WAS SUMMONED
INTO MR. SFERRELLA'S OFFICE AND INFORMED THAT SHE "WAS DOING TOO MUCH
UNION TIME . . . IT WAS A PROBLEM AND (HE) FELT THAT I WAS JUST DOING
TOO MUCH UNION TIME TO GET MY WORK DONE ON MY REGULAR DESK." THEREAFTER,
ACCORDING TO MS. MAKOWELSKI, MR. SFERRELLA PULLED OUT THE UNION CONTRACT
AND TOLD HER THAT HE FIGURED THAT A UNION STEWARD WAS ALLOWED LESS THAN
AN HOUR PER DAY FOR UNION ACTIVITIES. HE FURTHER TOLD HER THAT IN HIS
PERSONAL OPINION "EVEN 3 HOURS PER WEEK WAS TOO MUCH TO DO-- TOO MUCH
UNION WORK TO DO." FURTHER, ACCORDING TO MS. MAKOWELSKI,
HE ALSO MENTIONED AFTER THE STATEMENT THAT I WAS GOING TO GET A NEW
BRANCH CHIEF AND THAT
BRANCH CHIEF WOULD BE CALLING ON ME FOR JUST ABOUT EVERYTHING AND
THAT I WOULD PRACTICALLY
WORK ALL OF THE TIME. HE TOLD ME THAT I WAS HIRED MAINLY FOR THE JOB
OF BEING A SECRETARY AND
THAT WAS WHAT I WAS GETTING PAID FOR.
MR. SFERRELLA ALSO SAID THAT HE WOULDN'T LIE TO ME; THAT HE NEVER
LIKE THE IDEA OF ME BEING
IN THE UNION ANYWAY.
FOLLOWING THE CONVERSATION WITH MR. SFERRELLA, MS. MAKOWELSKI
CONTACTED CHIEF STEWARD HANLON AND REPORTED MR. SFERRELLA'S REMARKS.
MR. HANLON'S TESTIMONY CORROBORATES MS. MAKOWELSKI'S TESTIMONY IN THIS
LATTER RESPECT.
MR. SFERRELLA DENIED EVER INFORMING MS. MAKOWELSKI THAT HE "DID NOT
LIKE THE IDEA OF MS. MAKOWELSKI BEING INVOLVED IN UNION ACTIVITY BECAUSE
SHE WAS HIRED TO DO HER JOB AT HER DESK AND NOT TO BE INVOLVED WITH THE
UNION." HE FURTHER DENIED EVER STATING TO "MS. MAKOWELSKI THAT SHE WAS
SPENDING TOO MUCH TIME AWAY FROM HER DESK AND HER SECRETARIAL DUTIES
DOING WORK FOR THE UNION."
ACCORDING TO MR. SFERRELLA, THE ONLY CONVERSATION HE EVER HAD WITH
MS. MAKOWELSKI WHICH INVOLVED HER UNION ACTIVITY PERTAINED TO THE MANNER
IN WHICH SHE WAS TO FILL OUT THE FORMS INDICATING THE AMOUNT OF TIME SHE
HAD SPENT ON UNION ACTIVITY DURING ANY GIVEN WEEK.
DISCUSSION AND ANALYSIS
RESPONDENT CONCEDES THAT IF IN FACT MSSRS. HYMAN AND SFERRELLA MADE
THE STATEMENTS ATTRIBUTED TO THEM, A VIOLATION OF SECTION 7116(A)(1) OF
THE ACT OCCURRED "SINCE SUCH REMARKS ARE THE KINDS OF STATEMENTS WHICH
HAVE THE TENDENCY TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS." AS NOTED BY THE RESPONDENT, THE AUTHORITY
IN U.S. MARINE CORPS, MARINE LOGISTICS BASE, BARSTOW, CALIFORNIA & AFGE,
LOCAL 1482, AFL-CIO, 5 FLRA NO. 97, HAS SO HELD. HOWEVER, RESPONDENT
TAKES THE POSITION THAT THE RECORD EVIDENCE SUPPORTS THE DENIALS OF
MSSRS. HYMAN AND SFERRELLA THAT THEY MADE THE ALLEGED STATEMENTS AND
URGES DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY.
INASMUCH AS THERE IS NO DISPUTE WITH RESPECT TO THE STATE OF THE LAW,
IT IS OBVIOUS THAT RESOLUTION OF THE ISSUES UNDERLYING THE INSTANT
COMPLAINT DEPENDS SOLELY ON CREDIBILITY DETERMINATIONS.
HAVING OBSERVED THE WITNESSES AND THEIR DEMEANOR I CREDIT THE
TESTIMONY OF MSSRS. HYMAN AND SFERRELLA WHEREIN THEY DENY MAKING THE
COERCIVE STATEMENTS ATTRIBUTED TO THEM. WITH RESPECT TO THE CONVERSATION
BETWEEN MSSRS. HYMAN AND HANLON, WHICH PRECEDED THE SUBSEQUENT
INTERVENTION OF MR. TALAVERA, THE MUTUALLY CORROBORATIVE AND CREDITED
TESTIMONY OF MS. BLYE, MS. CORLEY, AND MR. RINARD SUPPORT MR. HYMAN'S
TESTIMONY CONCERNING THE TONE OF HIS CONVERSATION WITH MR. HANLON AND
BELIE MR. TALAVERA'S TESTIMONY CONCERNING THE REASON FOR HIS
INTERVENTION INTO THE CONVERSATION BETWEEN MR. HYMAN AND MR. HANLON.
MOREOVER, THE TESTIMONY OF MS. BLYE AND MS. CORLEY INDICATES THAT AT NO
TIME DURING THE CONVERSATION BETWEEN MR. HANLON AND MR. HYMAN WERE THEY
PAYING ANY ATTENTION TO THE WHEREABOUTS OF MR. TALAVERA. ACCORDINGLY,
HAVING CREDITED THEIR TESTIMONY, I FIND THAT MR. TALAVERA'S INTERVENTION
INTO THE CONVERSATION BETWEEN MR. HANLON AND MR. HYMAN WAS PROMPTED BY
REASONS OTHER THAN THEIR ACCUSATORY STARES.
IN VIEW OF THE FOREGOING CREDIBILITY FINDINGS AND CONCLUSIONS, I
RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER DISMISSING THE
COMPLAINT IN ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-20563, BE,
AND HEREBY IS, DISMISSED IN ITS ENTIRETY.
/1/ THE ALLEGED STATEMENTS WHICH ARE THE BASIS OF THE INSTANT
COMPLAINT WERE MADE TO UNION CHIEF STEWARD HANLON AND UNION STEWARD
MAKOWELSKI.
/2/ IN THE ABSENCE OF ANY OBJECTION, RESPONDENT'S MOTION TO CORRECT
THE TRANSCRIPT IN CERTAIN ENUMERATED RESPECTS IS HEREBY GRANTED.
/3/ THE RECORD REVEALS THAT WHEN SPECIAL SITUATIONS AROSE, SUCH AS A
REDUCTION IN FORCE, MR. TALAVERA SPENT CONSIDERABLY MORE THAN 2 TO 3
HOURS PER WEEK ON UNION RELATED BUSINESS AND WAS ALLOWED OFFICIAL TIME
FOR HIS ACTIVITIES IN THIS RESPECT.
/4/ THE REFUSAL TO ACCORD MR. TALAVERA MORE THAN ONE HOUR PER DAY ON
OFFICIAL TIME TO PROCESS THE MSPB APPEALS IS NOT ALLEGED AS AN UNFAIR
LABOR PRACTICE. WITH REGARD TO THE MSPB APPEALS, THE RECORD INDICATES
THAT ON APRIL 7, 1982, THE UNION HAD FILED APPEALS WITH MSPB ON BEHALF
OF 700 UNIT EMPLOYEES WHO HAD BEEN AFFECTED BY A RIF. ON APRIL 14, MSPB
ADVISED THE UNION THAT THE APPEALS WERE DEFECTIVE IN THAT THEY DID NOT
CONTAIN THE SIGNATURES OF THE AFFECTED EMPLOYEES AND THAT THE UNION HAD
ONLY 15 DAYS TO SECURE THE ABSENT SIGNATURES OR FACE DISMISSAL OF THE
APPEALS.
JOHN KOSLOSKE, ESQUIRE, FOR THE RESPONDENT
PETER A. SUTTON, ESQUIRE, FOR THE GENERAL COUNSEL
23 FLRA-ALJ; CASE NO. 3-CA-2369 /1/ NOVEMBER 30, 1982
ABERDEEN PROVING GROUND, DEPARTMENT OF THE ARMY, RESPONDENT, AND
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 2424, AFL-CIO, CHARGING PARTY
BEFORE: ELI NASH, JR., 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. (HEREINAFTER REFERRED TO AS THE STATUTE) AND THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 5 C.F.R.CHAPTER
XIV, 2410 ET SEQ. IN SEPTEMBER 1981, THE REGIONAL DIRECTOR FOR REGION 3
OF THE FEDERAL LABOR RELATIONS AUTHORITY, (HEREIN CALLED THE AUTHORITY)
PURSUANT TO CHARGES ORIGINALLY FILED BY THE INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424, AFL-CIO (HEREIN
CALLED THE UNION) ISSUED A COMPLAINT AND NOTICE OF HEARING ALLEGING THAT
ABERDEEN PROVING GROUND, DEPARTMENT OF THE ARMY ENGAGED IN UNFAIR LABOR
PRACTICES WITHIN THE MEANING OF SECTION 7116(A)(1) AND (5) OF THE
STATUTE BY RESTRAINING AND COERCING AN EMPLOYEE AND UNION STEWARD DURING
THE COURSE OF A MEETING IN CONNECTION WITH A PROPOSED DISCIPLINARY
ACTION; BY REFUSING REQUESTED OFFICIAL TIME TO PERFORM REPRESENTATIONAL
DUTIES WITHOUT STATING COMPELLING REASONS CONTRARY TO THE COLLECTIVE
BARGAINING AGREEMENT ON SEVERAL COMPELLING REASONS CONTRARY TO THE
COLLECTIVE BARGAINING AGREEMENT ON SEVERAL OCCASIONS; BY DENYING AN
EMPLOYEE AND UNION STEWARD OFFICIAL TIME TO MEET WITH A CHIEF UNION
STEWARD WITH REGARD TO PROCESSING A GRIEVANCE IN ACCORDANCE WITH THE
COLLECTIVE BARGAINING AGREEMENT; REFUSING AN EMPLOYEE AND UNION STEWARD
OFFICIAL TIME TO PARTICIPATE IN AN ARBITRATION PROCEEDING, CONTRARY TO
THE COLLECTIVE BARGAINING AGREEMENT; BY REFUSING AN EMPLOYEE'S REQUEST
TO MEET WITH A UNION REPRESENTATIVE SUBSEQUENT TO RECEIPT OF A WRITTEN
NOTICE OF PROPOSED DISCIPLINARY ACTION IN ACCORDANCE WITH THE COLLECTIVE
BARGAINING AGREEMENT; AND BY DENYING A REQUEST FOR OFFICIAL TIME TO
COMPLETE AN INJURY FORM WITH THE ASSISTANCE OF A UNION REPRESENTATIVE IN
ACCORDANCE WITH THE PARTIES COLLECTIVE BARGAINING AGREEMENT.
RESPONDENT FILED AN ANSWER DENYING ALL THE ALLEGATIONS OF THE
COMPLAINT.
A HEARING IN THIS MATTER WAS CONDUCTED BEFORE THE UNDERSIGNED AT
ABERDEEN PROVING GROUND, MARYLAND. ALL PARTIES WERE REPRESENTED BY
COUNSEL AND WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE AND TO ARGUE ORALLY.
ALSO ALL PARTIES FILED TIMELY BRIEFS.
BASED UPON THE ENTIRE RECORD IN THIS MATTER, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, AND UPON MY EVALUATION OF THE
EVIDENCE, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS. /2/
FINDINGS OF FACT
RESPONDENT AND THE UNION ARE PARTIES TO A COLLECTIVE-BARGAINING
AGREEMENT, THE TERMS AND CONDITIONS OF WHICH WERE IN EFFECT AT ALL TIMES
MATERIAL HEREIN.
IN ORDER TO PERFORM ITS REPRESENTATIONAL DUTIES, THE UNION HAS, IN
AGREEMENT WITH RESPONDENT, ESTABLISHED A SYSTEM OF SHOP STEWARDS
THROUGHOUT THE FACILITY. ON SUCH STEWARD IS MR. HOWARD LATHAM, WHO HAS
BEEN EMPLOYED BY RESPONDENT AS A MOTOR VEHICLE OPERATOR FOR NEARLY TWO
AND ONE-HALF YEARS. MR. LATHAM BECAME A STEWARD IN FEBRUARY, 1980, AND
IS RESPONSIBLE FOR REPRESENTING EMPLOYEES IN RESPONDENT'S ROADS,
RAILROADS, AND TEST COURSES BRANCH, LAND MANAGEMENT BRANCH, AND A SUPPLY
DEPOT WITHIN THESE COMPONENTS. MR. LATHAM'S DUTIES AS A STEWARD INCLUDE
REPRESENTING BARGAINING-UNIT EMPLOYEES WITHIN HIS DESIGNATED AREA OF
RESPONSIBILITY CONCERNING WORK-RELATED PROBLEMS THAT ARISE IN THE
DAY-TO-DAY COURSE OF EVENTS. THIS AUTHORITY INCLUDES THE FILING OF
GRIEVANCES ON BEHALF OF EMPLOYEES IN APPROPRIATE SITUATIONS, AND ALSO
INCLUDES SERVING AS A UNION SAFETY COMMITTEEMAN.
DURING HIS INITIAL YEAR AS A STEWARD LATHAM REQUESTED OFFICIAL TIME
TO PERFORM REPRESENTATIONAL DUTIES ABOUT TWICE A WEEK, ON THE AVERAGE.
UNTIL LATE JANUARY OR EARLY FEBRUARY 1981, NOT ONE OF LATHAM'S REQUESTS
FOR OFFICIAL TIME WAS DENIED. DURING HIS FIRST YEAR AS STEWARD, LATHAM,
FILED APPROXIMATELY 20 GRIEVANCES ON BEHALF OF UNIT EMPLOYEES.
BEFORE DECEMBER 1980, RONALD S. RODECKER, LATHAM'S FOREMAN TESTIFIED
THAT LATHAM WHEN REQUESTING OFFICIAL TIME TO PERFORM HIS
REPRESENTATIONAL FUNCTIONS WOULD GIVE SPECIFICS INCLUDING WHERE HE WAS
GOING TO PERFORM THOSE DUTIES. BY SPECIFICS, IT IS ASSUMED THAT LATHAM
FOLLOWED THE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDING
OFFICIAL TIME FOR SUCH DUTIES. ARTICLE 9 OF THE COLLECTIVE BARGAINING
AGREEMENT PROVIDES:
SECTION 9.06. TIME OFF DURING REGULAR WORKING HOURS WILL BE
AUTHORIZED WITHOUT LOSS OF PAY
OR BENEFITS, TO PERMIT THE RECOGNIZED CHIEF SHOP STEWARDS, STEWARDS,
ALTERNATE STEWARDS,
SECRETARY/TREASURER, CHAIRMAN OF THE UNION SHOP COMMITTEE AND
ASSISTANT CHAIRMAN OF THE UNION
SHOP COMMITTEE TO CARRY OUT THEIR RESPONSIBILITIES TO THE EMPLOYEES
IN THE UNIT. THE UNION
AGREES THAT IT WILL GUARD AGAINST THE USE OF EXCESSIVE TIME AND WILL
ENCOURAGE ALL EMPLOYEES
IN THE UNIT TO ENGAGE ONLY IN SUCH ACTIVITIES AS ARE AUTHORIZED BY
THE AGREEMENT OR
APPROPRIATE REGULATIONS. ALL TIME ALLOWED FOR THE ABOVE-MENTIONED
PURPOSES MAY BE CHARGED
AGAINST A SPECIFIC COST CODE MADE AVAILABLE FOR THIS PURPOSE BY THE
EMPLOYER.
SECTION 9.07. THE CHAIRMAN AND ASSISTANT CHAIRMAN OF THE UNION SHOP
COMMITTEE AND STEWARDS
AND CHIEF STEWARDS, WHEN DESIRING TO LEAVE THE WORK AREA DURING DUTY
HOURS TO PERFORM
REPRESENTATIONAL DUTIES IN ACCORDANCE WITH THIS AGREEMENT, SHALL
FIRST NOTIFY THE IMMEDIATE
SUPERVISOR THAT HE NEEDS TO LEAVE THE WORK AREA AND WILL, AT THAT
TIME, INFORM THAT SUPERVISOR
OF THEIR DESTINATION, BUILDING NUMBER (IF KNOWN), WORK LOCATION,
PHONE NUMBER (IF KNOWN), AND
TYPE OF REPRESENTATIONAL DUTY TO BE PERFORMED. IF OTHER AREAS ARE
VISITED, THE REPRESENTATIVE
WILL SO INFORM THE SUPERVISOR BY PHONE PRIOR TO LEAVING HIS ORIGINAL
DESTINATION. THE
SUPERVISOR SHALL GRANT THE REQUESTED AUTHORITY PROMPTLY EXCEPT IN
CASE OF STATED COMPELLING
REASONS TO THE CONTRARY. IF ENTERING A SHOP OR WORK AREA UNDER THE
COGNIZANCE OF A SUPERVISOR
OTHER THAN THEIR OWN, SUCH PERSONNEL WILL MAKE PRIOR ARRANGEMENTS
WITH THAT SUPERVISOR TO
VISIT HIS SHOP OR AREA TO MEET WITH ANY OF HIS EMPLOYEES. SUCH
PERSONNEL WILL REPORT TO THEIR
SUPERVISORS DIRECTLY AFTER THE COMPLETION OF THEIR REPRESENTATIONAL
DUTIES.
UNCONTRAVERTED ON THE RECORD IS TESTIMONY OF UNION PRESIDENT JOE
MCDESHEN THAT RESPONDENT'S LABOR RELATIONS SPECIALIST, DAVID RONALD
WEPPNER, CALLED HIM IN THE LATTER PART OF JANUARY OR FIRST PART OF
FEBRUARY 1981 AND DISCUSSED HOWARD LATHAM'S "ACTIVITIES AT FED."
ACCORDING TO MCDESHEN, WEPPNER SAID THAT "THE MAN WAS A LITTLE
OVER-ZEALOUS IN HIS ACTIVITIES AND WOULD I SPEAK TO HIM, AND HE FELT,
MR. WEPPNER FELT THAT SOME OF THE GRIEVANCES WERE NOT NECESSARY."
IN A LATER CONVERSATION SOMETIME IN MID-MAY, ALONG THOSE SAME LINES
WEPPNER IS ALLEGED TO HAVE TOLD MCDESHEN THAT "IF HOWARD DIDN'T CURTAIL
SOME OF HIS ACTIVITIES, THAT THEY WOULD HAVE TO DO SOMETHING, ALONG THAT
LINE, YOU KNOW."
MCDESHEN ALSO STATES THAT HE WAS CALLED BY MER BRANCH CHIEF MR.
BRADLEY WHO INQUIRED IF HE HAD TALKED WITH WEPPNER CONCERNING LATHAM'S
UNION ACTIVITIES. ACCORDING TO MCDESHEN, BRADLEY TOLD HIM THAT THE
PROBLEM "IS NOT ALL HOWARD LATHAM AND SOME OF IT RODECKER."
SOMETIME AROUND JANUARY 27 OR JANUARY 28, 1981, RODECKER ADMITTEDLY
TOLD LATHAM, "(LATHAM) IS ACTING MORE LIKE A PART-TIME TRUCK DRIVER, IF
HE PUT AS MUCH INTEREST IN HIS UNION BUSINESS-- IN HIS TRUCK DRIVING,
EXCUSE ME-- IF HE PUT AS MUCH INTEREST IN HIS TRUCK DRIVING ABILITIES AS
HE DOES WITH HIS UNION WORK, HE WOULD BE A FINE TRUCK DRIVER." THERE ARE
MANY ACCOUNTS OF WHAT WAS ACTUALLY TOLD TO LATHAM AND WHAT WAS ACTUALLY
REPEATED AT A FEBRUARY 5, 1981 MEETING PROPOSING DISCIPLINARY ACTION
AGAINST LATHAM. I CREDIT THE STATEMENT OF RODECKER AS TO WHAT WAS
ACTUALLY SAID, FOR SEEMINGLY ALL OF THE OTHER WITNESSES GAVE THEIR OWN
INTERPRETATION TO THE STATEMENT AND THE ABOVE STATEMENT IS NOT AT ALL
INCONSISTENT WITH LATHAM'S ACCOUNT OF WHAT WAS SAID.
ACCORDING TO RODECKER THE STATEMENT WAS MADE DURING ONE OF THOSE
TIMES "WHEN (LATHAM) HAD ASKED ME ABOUT GOING TO THE UNION HALL AGAIN."
RODECKER TESTIFIED THAT NINETY-NINE TIMES OUT OF A HUNDRED, WHEN LATHAM
CAME TO HIM TO REQUEST TIME, WHEN ASKED WHY, LATHAM WOULD RESPOND THAT
HE "NEEDED TO DO RESEARCH."
ON OR ABOUT MONDAY MORNING, FEBRUARY 2, 1981, MR. LATHAM MADE A
REQUEST TO RON RODECKER, HIS FIRST-LINE SUPERVISOR, TO GO TO THE UNION
HALL BECAUSE HE HAD "A SAFETY PROBLEM." AS SOON AS HE MADE THE REQUEST,
MR. RODECKER CUT LATHAM OFF BY TELLING HIM HE COULD NOT GO. RODECKER
GAVE NO REASON WHY LATHAM COULD NOT GO TO THE UNION HALL OTHER THAN TO
SAY THAT HE (RODECKER) HAD BEEN TOLD "NOT TO LET HIM GO". FOLLOWING HIS
CONVERSATION WITH RODECKER, LATHAM CALLED JOE MCDESHEN, THE UNION
PRESIDENT AND RELATED WHAT HAD OCCURRED, MCDESHEN INSTRUCTED LATHAM TO
GO BACK TO HIS JOB. RODECKER, ALTHOUGH TESTIFYING, DOES NOT REMEMBER
LATHAM COMING TO HIM ON THAT DATE WHATSOEVER.
THE SAFETY PROBLEM, MR. LATHAM ALLEGEDLY WISHED TO INVESTIGATE AT
THAT TIME, CONCERNED A PLASTIC FACE SHIELD THAT HE AND OTHER EMPLOYEES
USED ON THE JOB AND WHICH FOGGED UP DURING THE COLD WEATHER IN WINTER.
MR. LATHAM STATES THAT HE DESIRED TO GO TO THE UNION HALL TO REVIEW
SAFETY RECORDS THAT WERE KEPT BY THE UNION TO SEE IF THIS MATTER HAD
ARISEN PREVIOUSLY. THE RECORD REVEALS, HOWEVER THAT RESPONDENT ALTHOUGH
REQUESTING INFORMATION AS LATE AS MARCH 6, 1981, HAS NEVER BEEN
SPECIFICALLY APPRISED OF ANY SAFETY MATTER CONCERNING THE PLASTIC FACE
SHIELD. RODECKER TESTIFIED THAT A SAFETY MATTER SHOULD BE DISCUSSED WITH
THE FIRST-LINE SUPERVISOR AND NOT AT THE UNION HALL. SUCH TESTIMONY IS
CONSISTENT WITH THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT.
ARTICLE 32 OF THE COLLECTIVE BARGAINING AGREEMENT READS AS FOLLOWS:
SECTION 32.02. THE EMPLOYER WILL RECOGNIZE EACH SHOP STEWARD AS A
UNION SAFETY
COMMITTEEMAN AND HIS OBLIGATION TO THE EMPLOYEES OF THE UNIT TO
REPORT UNSAFE CONDITIONS TO
THE IMMEDIATE SUPERVISOR WHO WILL MEET PROMPTLY, UPON REQUEST, TO
DISCUSS AND RESOLVE THESE
SAFETY PROBLEMS. IF A SAFETY PROBLEM CANNOT BE RESOLVED BY THE
IMMEDIATE SUPERVISOR, THE
MATTER WILL BE REFERRED PROMPTLY TO THE NEXT HIGHER LEVEL, AND IF
NECESSARY TO THE SAFETY
OFFICE FOR DETERMINATION.
SECTION 32.03. IN THE COURSE OF PERFORMING THEIR NORMALLY ASSIGNED
WORK, SHOP STEWARDS
WILL BE ALERT TO OBSERVE UNSAFE PRACTICES, EQUIPMENT AND CONDITIONS
AS WELL AS ENVIRONMENTAL
CONDITIONS IN THEIR AREA OF REPRESENTATIONAL RESPONSIBILITY. IF AN
UNSAFE OR UNHEALTHY
CONDITION IS OBSERVED, THE SHOP STEWARD SHOULD REPORT IT TO THE
LOWEST LEVEL SUPERVISOR OF THE
ORGANIZATIONAL ELEMENT INVOLVED. IF THE SUPERVISOR CANNOT SETTLE THE
MATTER AT HIS LEVEL OR
AT AN INTERIM LEVEL BELOW THE DIVISION, HE WILL REFER THE MATTER TO
THE DIVISION CHIEF AND
WILL NOTIFY THE SHOP STEWARD THAT THE SAFETY PROBLEM HAS NOT BEEN
SETTLED AND HAS BEEN
REFERRED TO THE DIVISION CHIEF. HOWEVER, AT ANY TIME AFTER THE
INITIAL DISCUSSION WITH THE
LOWEST LEVEL SUPERVISOR THE SHOP STEWARD MAY NOTIFY THE CHIEF STEWARD
AND UPON REQUEST OF THE
CHIEF STEWARD, THE DIVISION CHIEF (OR IN MATERIEL TESTING
DIRECTORATE, A REPRESENTATIVE OF THE
DIVISION CHIEF) WILL MEET TO ATTEMPT TO RESOLVE THE PROBLEM. A
REPRESENTATIVE OF THE SAFETY
OFFICE WILL MEET WITH THE CHIEF STEWARD AND DIVISION CHIEF UPON
REQUEST TO RENDER AN OPINION
ON THE SAFETY CONDITION INVOLVED.
HOWEVER, LATHAM WAS NOT TOLD THAT SAFETY RESEARCH WAS IMPROPER AT THE
TIME HE REQUESTED OFFICIAL TIME.
THE PLASTIC FACE SHIELD PROBLEM SURFACED AGAIN IN WHAT APPEARS TO BE
A DIFFERENT CONTEXT. ON OR ABOUT THURSDAY, FEBRUARY 5, 1981. MR. LATHAM
WAS CALLED IN TO AN INVESTIGATORY INTERVIEW WITH MR. LYLE ANDREWS,
LATHAM'S SECOND-LIND SUPERVISOR. THE PURPOSE OF THE MEETING WAS TO
INVESTIGATE THE POSSIBILITY OF DISCIPLINARY ACTION AGAINST LATHAM FOR
WILLFUL DESTRUCTION OF GOVERNMENT PROPERTY, SPECIFICALLY, A PLASTIC FACE
SHIELD. RODECKER AND LATHAM'S ACCOUNTS OF WHAT SPURRED THE DISCIPLINARY
INVESTIGATION ARE EONS APART. THE MATTER, HOWEVER, HAS BEEN DECIDED BY
AN ARBITRATOR, SO I NEED NOT ATTEMPT TO UNRAVEL THAT MYSTERY OTHER THAN
TO SAY ONE OR THE OTHER OF THESE WITNESSES HAS A FAULTY MEMORY. THE
CREDIBILITY PROBLEM WILL, HOWEVER, BE APPROACHED LATER.
DURING THE INVESTIGATORY INTERVIEW, RODECKER WAS ASKED BY CHIEF
STEWARD SPENCER DOWELL ABOUT THE "PART-TIME TRUCK DRIVER" STATEMENT.
LATHAM CONTENDS THAT HE ASKED THE QUESTION OF RODECKER, INDICATING AT
LEAST THAT HIS MEMORY IS NOT PERFECT. IN BRIEF, THE GENERAL COUNSEL
POINTS OUT MANY INCONSISTENCIES IN TESTIMONY BUT OMITS REFERENCE TO THIS
IMPORTANT LAPSE BY LATHAM. THIS TIME, IN FRONT OF OTHER MANAGEMENT
OFFICIALS AND TWO UNION REPRESENTATIVES (IN ADDITION TO MR. LATHAM), MR.
RODECKER WAS ASKED IF HE REMEMBERED A STATEMENT HE MADE TO LATHAM A FEW
DAYS EARLIER. MR. RODECKER THEN LOOKED AT LATHAM AND STATED, "YOU ARE A
PART-TIME TRUCK DRIVER, YOU SHOULD BE HALF AS INTERESTED IN YOUR JOB AS
YOU ARE IN THE UNION".
ON OR ABOUT FEBRUARY 20, 1981, MR. LATHAM AGAIN REQUESTED TO GO TO
THE UNION HALL TO CARRY OUT HIS REPRESENTATIONAL DUTIES. ON THAT DAY,
MR. LATHAM APPROACHED CHARLIE HUDLER, WHO WAS ACTING SUPERVISOR IN RON
RODECKER'S ABSENCE, AND REQUESTED OFFICIAL TIME TO GO TO THE UNION HALL
TO INVESTIGATE A POSSIBLE OVERTIME VIOLATION. MR. HUDLER THEN WENT TO
LYLE ANDREWS' OFFICE TO CHECK WITH ANDREWS. MR. LATHAM FOLLOWED BEHIND,
AND WAS TOLD DIRECTLY BY MR. ANDREWS, "NO, YOU ARE NOT GOING". MR.
ANDREWS MADE NO FURTHER STATEMENT, AND MR. HUDLER THEN TOLD LATHAM TO GO
CLEAN HIS TRUCK. MR. LATHAM FOLLOWED THIS DIRECTIVE, THOUGH HIS TRUCK
DID NOT NEED TO BE WORKED ON, NOR WAS THERE ANY OTHER PRODUCTIVE WORK
THAT NEEDED TO BE ACCOMPLISHED. FURTHERMORE, IT WAS RAINING THAT DAY.
MR. HUDLER TESTIFIED THAT MR. LATHAM WOULD NOT GIVE A SPECIFIC REASON
FOR HIS REQUEST, AND FURTHER, THAT MR. LATHAM STATED HE DID NOT HAVE TO
GIVE A REASON. MR. ANDREWS' TESTIMONY ALSO DIFFERS WITH RESPECT TO THE
FEBRUARY 20 REQUEST. HE STATES THAT, "MR. HUDLER CAME TO ME AND HE SAID
THAT HE HAD A REQUEST FROM MR. LATHAM TO GO TO THE UNION HALL TO LOOK
OVER SOME PAST OVERTIME GRIEVANCES". WHILE MR. LATHAM DID STATE A
SPECIFIC REASON WHEN MAKING HIS REQUEST FOR OFFICIAL TIME ON FEBRUARY
20, 1981 IT IS CONCEIVABLE THAT THE REQUEST WAS INCORRECTLY TRANSMITTED
TO ANDREWS BY MR. HUDLER. ALL ARE IN AGREEMENT THAT MR. LATHAM DID NOT
MAKE HIS REQUEST DIRECTLY TO MR. ANDREWS. INSTEAD, MR. LATHAM MADE THE
REQUEST TO MR. HUDLER, WHO, IN TURN, TOLD MR. ANDREWS. MR. ANDREWS'
KNOWLEDGE ON THIS MATTER, THEN, CAN ONLY HAVE COME FROM WHAT MR. HUDLER
TOLD HIM. IN ANY EVENT, THERE IS NO CONSISTENCY IN WHAT EACH RECALLS. I
CREDIT LATHAM.
SUBSEQUENTLY, ON OR ABOUT MARCH 11, 1981, MR. LATHAM MADE ANOTHER
ORAL REQUEST FOR OFFICIAL TIME. THIS TIME, THE REQUESTED OFFICIAL TIME
TO MEET WITH SPENCER DOWELL (CHIEF STEWARD) REGARDING A FIRST STEP
GRIEVANCE DECISION HE HAD RECEIVED ON A GRIEVANCE HE HAD FILED ON BEHALF
OF A CRANE OPERATOR WITHIN HIS JURISDICTION. THE PURPOSE OF THE MEETING
WAS TO DISCUSS WITH MR. DOWELL THE DESIRABILITY OF PROCEEDING TO THE
SECOND STEP OF THE GRIEVANCE PROCEDURE, AND IF UPON DECIDING TO TAKE
THIS COURSE OF ACTION, TO HAVE MR. DOWELL SIGN THE OFFICIAL GRIEVANCE
FORM.
MR. ANDREWS RESPONDED TO MR. LATHAM BY STATING THAT HE COULD NOT HAVE
THE OFFICIAL TIME. ANDREWS FURTHER STATED THAT HE WOULD ARRANGE A TIME
FOR LATHAM TO MEET WITH MR. DOWELL, THOUGH HE DID NOT INDICATE WHEN THE
TIME WOULD BE GRANTED, AND GAVE NO REASON AS TO WHY LATHAM COULD NOT
MEET WITH MR. DOWELL AT THAT PARTICULAR TIME.
THE GENERAL COUNSEL ASSERTS THAT LATHAM'S TESTIMONY ABOVE SHOULD BE
CREDITED ALTHOUGH IT IS INCONSISTENT WITH THE RECOLLECTION OF
RESPONDENT'S WITNESSES GEORGE AND MR. ANDREWS.
RESPONDENT WITNESS GEORGE COLLETTA TESTIFIED THAT MR. LATHAM ASKED
HIM FOR TIME TO GO TO THE UNION HALL ON MARCH 11, 1981 AND ONLY GAVE
"RESEARCH" AS A REASON. MR. ANDREWS, ON THE OTHER HAND, TESTIFIED THAT
ON MARCH 11, 1981, GEORGE COLLETTA CAME TO HIM AND SAID MR. LATHAM HAD
REQUESTED TO GO TO THE UNION HALL "FOR TWO OR THREE DIFFERENT REASONS".
I SEE NO REASON TO SPECIFICALLY DISCREDIT EITHER WITNESS SINCE IT IS
CLEAR THAT LATHAM MADE A REQUEST ON THAT DAY FOR WHICH HE GAVE AT LEAST
ONE REASON, AND WHICH WAS SUBSEQUENTLY DENIED BY ANDREWS, WHO CLEARLY
HAD ULTIMATE AUTHORITY TO MAKE SUCH A DECISION, AT THAT LEVEL.
ON OR ABOUT APRIL 23, 1981, MR. LATHAM RECEIVED A CALL AT
APPROXIMATELY 8:00 A.M. WHEN HE ARRIVED AT WORK FROM MR. BILL LAYMAN, AN
INTERNATIONAL UNION REPRESENTATIVE. MR. LAYMAN WISHED TO SEE LATHAM
BECAUSE LATHAM WAS TO SERVE AS A WITNESS AND REPRESENTATIVE IN AN
ARBITRATION HEARING THAT MORNING. LATHAM THEN ASKED HIS IMMEDIATE
SUPERVISOR AT THAT TIME, BILL REEDY, TO GO TO THE UNION HALL BECAUSE
LAYMAN WISHED TO MEET WITH HIM CONCERNING THE HEARING. REEDY SAID HE
WOULD FIRST HAVE TO CHECK WITH LYLE ANDREWS. REEDY THEN WENT TO ANDREWS'
OFFICE AND CAME BACK AND TOLD LATHAM THAT HIS REQUEST TO GO THE THE
UNION HALL HAD BEEN DENIED, THOUGH HE GAVE NO EXPLANATION FOR THE
DENIAL.
AFTER INFORMING LATHAM THAT HIS REQUEST FOR OFFICIAL TIME HAD BEEN
DENIED, REEDY DIRECTED LATHAM TO GO DOWN TO THE SHOP AREA. LATHAM THEN
PROCEEDED TO THE SHOP AREA WHERE HE SWEPT THE FLOOR FOR AN HOUR BEFORE
REEDY ALLOWED HIM TO GO THE THE ARBITRATION HEARING-- 15 MINUTES BEFORE
THE HEARING WAS SCHEDULED TO START.
MR. REEDY TESTIFIED THAT HE ALLOWED MR. LATHAM ONE AND THREE QUARTER
HOURS OFFICIAL TIME BEFORE THE ARBITRATION HEARING ON APRIL 23, 1981--
LETTING LATHAM GO AT 8:45 A.M., WITH THE HEARING SCHEDULED TO START AT
10:00 A.M. MR. REEDY'S TESTIMONY ON THIS POINT CANNOT BE ACCURATE,
HOWEVER. FIRST, WHILE MR. REEDY TESTIFIED THAT THE ARBITRATION HEARING
WAS SUPPOSED TO START AT 10:00 A.M., NO TESTIMONY WAS ELICITED AS TO THE
BASIS OF MR. REEDY'S KNOWLEDGE OF THE SCHEDULED STARTING TIME. SECOND,
MR. REEDY TESTIFIED THAT HE HAD NO PERSONAL INVOLVEMENT IN THE
ARBITRATION HEARING, NOR DID HE ATTEND THE HEARING.
I CREDIT LATHAM SINCE ALL THE AVAILABLE INDEPENDENT EVIDENCE SUPPORTS
HIS TESTIMONY THAT HE WAS GIVEN NO OFFICIAL TIME FOR PREPARATION
PURPOSES PRIOR TO THE HEARING. THUS RESPONDENT'S OWN LETTER TO THE
ARBITRATOR, DATED APRIL 9, 1981, SET THE STARTING TIME FOR THE HEARING
AT 9:30 A.M. FURTHER, ACTING UNION PRESIDENT, MR. HARVEY MITCHELL, ON
APRIL 23, 1981 TESTIFIED THAT THE START OF THE HEARING WAS DELAYED
BECAUSE THE UNION'S REPRESENTATIVE (MR. LAYMAN) WAS UNABLE TO SPEAK TO
THE WITNESSES, INCLUDING MR. LATHAM, BEFORE THE HEARING. FURTHER
CORROBORATION IS FOUND IN A WRITTEN AGREEMENT BETWEEN THE
REPRESENTATIVES OF THE UNION AND RESPONDENT ON APRIL 23, 1981, WHICH
MADE POTENTIAL UNION WITNESSES AVAILABLE TO THE UNION REPRESENTATIVE AT
11:30 A.M.
APPROXIMATELY ONE WEEK LATER, ON OR ABOUT APRIL 30, 1981, THE MATTER
CONCERNING THE PLASTIC FACE SHIELD AROSE ONCE MORE PROMPTING MR. LATHAM
TO REQUEST TO MEET WITH HIS OWN UNION REPRESENTATIVE. THE FACE SHIELD
INCIDENT WHICH WAS THE SUBJECT OF THE INVESTIGATORY INTERVIEW ON
FEBRUARY 5, 1981, RESULTED IN PROPOSED DISCIPLINARY ACTION AGAINST MR.
LATHAN, WHICH IN TURN, LED TO A MEETING WITH COLONEL BROOKE, AND
ULTIMATELY TO ARBITRATION.
THE MEETING WITH COLONEL BROOKE TOOK PLACE ON OR ABOUT APRIL 20,
1981. PRESENT AT THIS MEETING WERE COLONEL BROOKE'S SECRETARY, AS WELL
AS SPENCER DOWELL WHO WAS ACTING IN THE CAPACITY OF LATHAM'S UNION
REPRESENTATIVE. SHORTLY BEFORE APRIL 30, 1981, A MEMORANDUM OF THE
DISCUSSION THAT OCCURRED DURING THIS MEETING WAS SENT TO MR. LATHAM.
ACCOMPANYING THIS MEMORANDUM OF RECORD WERE INSTRUCTIONS TO MR. LATHAM
TO REVIEW THE MEMORANDUM AND CORRECT ANY INACCURACIES, AND THEN RETURN
THE MEMORANDUM TO COLONEL BROOKE.
ON APRIL 30, 1981 MR. LATHAM WENT TO THE ACTING SUPERVISOR THAT DAY,
GEORGE COLLETTA, AND REQUESTED OFFICIAL TIME TO MEET WITH SPENCER
DOWELL. MR. LATHAM INFORMED MR. COLLETTA THAT HE HAD RECEIVED A
MEMORANDUM OF A MEETING HE HAD ATTENDED WITH COLONEL BROOKE AND SPENCER
DOWELL, AND THAT THE COLONEL HAD REQUESTED THAT HE REVIEW THE MEMORANDUM
AND MAKE ANY NECESSARY ADDITIONS OR DELETIONS. LATHAM FURTHER INFORMED
COLLETTA THAT HE WISHED TO MEET WITH MR. DOWELL IN ORDER TO REVIEW THE
NOTES THAT DOWELL TOOK AT THE MEETING BEFORE MAKING ANY CORRECTIONS TO
THE MEMORANDUM. ARTICLE 23 OF THE PARTIES COLLECTIVE BARGAINING
AGREEMENT PROVIDES FOR UNION ASSISTANCE IN DISCIPLINARY MATTERS.
COLLETTA, LIKE OTHER FIRST-LINE SUPERVISORS BEFORE HIM, STATED THAT
HE WOULD HAVE TO CHECK WITH MR. ANDREWS. LATER, AT APPROXIMATELY 12:30
P.M. THAT SAME DAY, COLLETTA INFORMED LATHAM THAT HIS REQUEST TO MEET
WITH SPENCER DOWELL HAD BEEN DENIED. SIMILARLY, AS WITH THE PREVIOUS
DENIALS OF MR. LATHAM'S REQUESTS FOR OFFICIAL TIME, COLLETTA DID NOT
INDICATE THE REASON FOR THE DENIAL.
MR. LATHAM SUBSEQUENTLY REQUESTED TO MEET WITH HIS UNION
REPRESENTATIVE ON MAY 1, 1981, THIS TIME, HOWEVER, CONCERNING THE
COMPLETION OF AN INJURY REPORT FORM. /3/ THE INCIDENT WHICH LED TO THIS
REQUEST WAS AN INJURY THAT MR. LATHAM INCURRED ON THE JOB LATE IN THE
WORK DAY ON OR ABOUT APRIL 29, 1981. GEORGE COLLETTA, WHO WAS AGAIN
ACTING AS SUPERVISOR THAT DAY, TWICE APPROACHED LATHAM ON APRIL 30 AND
ATTEMPTED TO HAVE HIM FILL OUT THE FORM. UPON READING THE FORM, LATHAM
STATES THAT HE UNDERSTOOD THAT THE FORM COULD BE COMPLETED ANY TIME
WITHIN TWO DAYS OF THE INJURY AND, THEREFORE, ASKED TO WAIT UNTIL THE
NEXT DAY WHEN BILL REEDY, THE PERMANENT SUPERVISOR, RETURNED TO WORK.
ON MAY 1, 1981, AT APPROXIMATELY 8:00 A.M., MR. LATHAM REQUESTED
OFFICIAL TIME FROM REEDY TO MEET WITH HIS UNION REPRESENTATIVE IN ORDER
TO COMPLETE THE INJURY FORM. REEDY REPLIED THAT HE WOULD HAVE TO CHECK
IT OUT. AT LUNCHTIME, REEDY APPROACHED LATHAM AND TOLD HIM THAT HIS
REQUEST HAD BEEN DENIED; THAT HE DIDN'T NEED A REPRESENTATIVE TO HELP
FILL OUT THE FORM. LATHAM RENEWED HIS REQUEST TO SEE THE UNION
REPRESENTATIVE IN ORDER TO FILL OUT THE FORM LATER THAT SAME DAY. REEDY
DENIED THE REQUEST A SECOND TIME, AGAIN STATING TO LATHAM THAT HE DID
NOT NEED A UNION REPRESENTATIVE TO FILL OUT A FORM. THE FORM WAS
PREPARED AND FORWARDED WITHOUT LATHAM'S PARTICIPATION.
DISCUSSION AND CONCLUSIONS
THE GENERAL COUNSEL ALLEGES THAT RESPONDENT'S ACTION IN DENYING
STEWARD LATHAM OFFICIAL TIME TO PERFORM REPRESENTATIONAL DUTIES ON
FEBRUARY 2, FEBRUARY 20, MARCH 11 AND APRIL 23, 1981, RESPECTIVELY, AND
BY REFUSING TO ALLOW THAT EMPLOYEE TO MEET WITH A UNION REPRESENTATIVE
PURSUANT TO ARTICLE 33 OF THE COLLECTIVE BARGAINING AGREEMENT ON MAY 1,
1981, CONSTITUTED A CLEAR AND PATENT BREACH OF THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE PARTIES, AND THAT SUCH ACTION ROSE TO THE LEVEL OF
AN UNFAIR LABOR PRACTICE VIOLATING SECTION 7116(A)(1) AND (5) OF THE
STATUTE BY PATENTLY BREACHING ARTICLE 23 AND ARTICLE 9 OF THE AGREEMENT
WHEN IT DENIED MR. LATHAM AN OPPORTUNITY ON APRIL 30, 1981 TO MEET WITH
HIS UNION REPRESENTATIVE IN PROCESSING HIS OWN GRIEVANCE ON OFFICIAL
TIME. FINALLY, THE GENERAL COUNSEL ALLEGES THAT RESPONDENT THROUGH ITS
AGENT RON RODECKER VIOLATED SECTION 7116(A)(1) OF THE STATUTE BY MAKING
A CERTAIN STATEMENT DURING AN INVESTIGATORY INTERVIEW.
RESPONDENT, ON THE OTHER HAND, CONTENDS THAT THE GENERAL COUNSEL HAS
NOT PROVEN ANY OF THE CHARGES AGAINST IT BY A PREPONDERANCE OF THE
EVIDENCE. RESPONDENT'S VIEW IS THAT LATHAM REPEATEDLY FAILED OR REFUSED
TO COMPLY WITH THE COLLECTIVE BARGAINING AGREEMENT. RESPONDENT ASSERTS
THAT THE MATTER IS ONE TO BE RESOLVED BY THE MACHINERY OF THE COLLECTIVE
BARGAINING AGREEMENT RATHER THAN BY THE AUTHORITY. WITH REGARD TO THE
STATEMENT ATTRIBUTED TO RESPONDENT'S AGENT RODECKER, RESPONDENT ARGUES
THAT THE UTTERANCE WAS MADE IN NON-COERCIVE CIRCUMSTANCES AND IS
PROTECTED BY SECTION 7116(E) OF THE STATUTE.
BOTH SIDES CONFESS THAT CREDIBILITY IS AN IMPORTANT AND DETERMINING
FACTOR IN THIS MATTER.
IN SPITE OF ITS ARGUMENTS CONCERNING CREDIBILITY, RESPONDENT IS NO
WAY CONTRAVERTED THE TESTIMONY OF UNION PRESIDENT MCDESHEN CONCERNING
HIS CONVERSATIONS WITH RESPONDENT'S LABOR RELATIONS OFFICER AND MR.
LATHAM'S BRANCH MANAGER, MR. BRADLEY. NOR DID THE GENERAL COUNSEL PRESS
TH8S AREA AS RESOLVING THE CREDIBILITY QUESTIONS. IN MY VIEW, THIS
UNDISPUTED AND UNDENIED TESTIMONY, ESPECIALLY WHERE ONE OF THE
WITNESSES, MR. WEPPNER TESTIFIED AT THE HEARING, BUT DID NOT ADDRESS THE
MCDESHEN INDICTMENT IS CRUCIAL. THE REMARKS ATTRIBUTED TO WEPPNER
CLEARLY INDICATE SUBSTANTIAL MOTIVATION ON RESPONDENT'S PART TO QUIET
LATHAM, AN OVER-ZEALOUS STEWARD AND SET THE TONE FOR MANY OF THE ACTIONS
OF ITS SUPERVISORS FROM EARLY FEBRUARY TO MAY, 1981.
IN VIEWING THE EVIDENCE AS A WHOLE AND THE DEMEANOR OF THE VARIOUS
WITNESSES INVOLVED, IT IS CLEAR THAT THERE WERE SEVERAL LAPSES IN RECALL
AND EVEN INACCURACIES IN RECOUNTING THE EVENTS AS THEY OCCURRED.
ALTHOUGH IT IS CLEAR THAT MOTIVATION EXISTED WHICH WOULD OR COULD
CONTRIBUTE TO ANY OF THESE WITNESSES COLORING THE TRUTH, AND THIS
INCLUDES LATHAM'S ACCOUNTS OF WHAT TRANSPIRED, THE MCDESHEN STATEMENTS
UNDENIED ON THE RECORD COMPEL ME TO CREDIT LATHAM'S ACCOUNT OVER THOSE
OF RESPONDENT'S WITNESSES. I DO THIS EVENTHOUGH THERE IS A GLARING ERROR
IN LATHAM'S TESTIMONY REGARDING WHO REQUESTED THAT RODECKER REPEAT HIS
STATEMENT AT THE FEBRUARY 5 INVESTIGATORY MEETING, AND A SENSE THAT
LATHAM'S REQUEST TO RESEARCH A SAFETY MATTER ON FEBRUARY 2 WAS
CONCOCTED, AND THAT HE WAS INDEED ATTEMPTING TO PROTECT HIMSELF FROM
DISCIPLINARY ACTION CONCERNING THE PLASTIC FACE MASK AND WAS USING THE
UNION FOR THAT END. I NOTE THAT IT IS NOT PARTICULARLY BELIEVABLE THAT
LATHAM WAS MERELY SEEKING TIME TO RESEARCH A SAFETY PROBLEM, BECAUSE
WHILE THE RECORD IS REPLETE WITH DATES AND TIMES ON WHICH EVENTS
OCCURRED IT SOMEHOW FAILS TO PLACE THE DATE OF THE ALLEGED DESTRUCTION
OF THE FACE MASK. IF THE ALLEGED INCIDENT OCCURRED SHORTLY BEFORE
FEBRUARY 2, WHICH THE RECORD DOES NOT DISCLOSE, IT WOULD BE IMPOSSIBLE
NOT TO FIND THAT THIS INCIDENT GAVE IMPETUS TO THE RASH OF GRIEVANCES
AND CONFLICTS WHICH LATHAM WAS EXPERIENCING. WITHOUT THE EXACT DATE, BUT
WITH MCDESHEN'S UNCONTRAVERTED STATEMENT I AM CONSTRAINED TO FIND,
HOWEVER, LATHAM MORE CREDIBLE THAN RESPONDENT'S WITNESSES.
IT IS WELL ESTABLISHED THAT THE STATUTE DOES NOT PRECLUDE AGENCY
MANAGEMENT FROM INSISTING THAT EMPLOYEES ABIDE BY THE TERMS OF A
COLLECTIVE BARGAINING AGREEMENT, APPLICABLE LAWS AND REGULATIONS AND
DOES NOT PRECLUDE AGENCY MANAGEMENT FROM DIRECTING ITS EMPLOYEES IN THE
PERFORMANCE OF THEIR ASSIGNED DUTIES. UNITED STATES ARMY, CORPUS CHRISTI
ARMY DEPOT, CORPUS CHRISTI, TEXAS, 4 FLRA NO. 80 (1980); ARMY AND AIR
FORCE EXCHANGE SERVICE (AAFES), ROCKY MOUNTAIN AREA EXCHANGE NO. 4125,
FORT CARSON, COLORADO, 8 FLRA NO. 94 (1982); SEE ALSO: DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE CENTER, ATLANTA, GEORGIA, 10 FLRA
NO. 71 (1982). HOWEVER, ENFORCEMENT OF SUCH PROVISIONS CANNOT BE
ACCOMPANIED BY COERCIVE CONDUCT WHICH INTERFERES WITH EMPLOYEE RIGHTS.
THE GENERAL COUNSEL, IN MY VIEW, NOT ONLY ESTABLISHED BY A
PREPONDERANCE OF THE EVIDENCE THAT LATHAM WAS INTERFERED WITH IN HIS
REPRESENTATIONAL DUTIES BECAUSE OF HIS APPARENT OVER-ZEALOUS ATTITUDE IN
PROCESSING GRIEVANCES, BUT, ALSO ESTABLISHED THAT LATHAM WAS NOT ALLOWED
TO MEET WITH HIS UNION REPRESENTATIVE CONCERNING HIS OWN DISCIPLINARY
PROCEEDING FOR THAT SAME REASON. FURTHERMORE, THE GENERAL COUNSEL
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE RESPONDENT'S MOTIVATION
FOR CERTAIN ACTIONS WHICH INTERFERED NOT ONLY WITH LATHAM'S RIGHTS AS A
STEWARD, BUT AS AN EMPLOYEE.
WITH REGARD TO THE STATEMENT MADE DURING A DISCIPLINARY PROCEEDING
THE RECORD SHOWED, THAT IN LATE JANUARY OR EARLY FEBRUARY 1981, UNION
PRESIDENT MCDESHEN WAS WARNED BY RESPONDENT'S AGENTS THAT HE SHOULD
SPEAK TO LATHAM ABOUT HIS UNION ACTIVITY. FURTHER, DURING THIS SAME
PERIOD LATHAM'S SUPERVISOR RODECKER TOLD LATHAM THAT, "YOU ARE A
PART-TIME TRUCK DRIVER, YOU SHOULD BE HALF AS INTERESTED IN YOUR JOB AS
YOU ARE IN THE UNION" AND REPEATED THAT STATEMENT AT AN INVESTIGATORY
INTERVIEW IN WHICH HE WAS PREPARING TO AND DID DISCIPLINE LATHAM.
FURTHERMORE, WEPPNER FOLLOWED UP ON HIS CONVERSATION WITH MCDESHEN
SOMETIME LATER INDICATING FURTHER CONCERN WITH LATHAM. MOREOVER,
LATHAM'S BRANCH MANAGER BRADLEY INTERJECTED HIS VIEWS ON THE LATHAM
SITUATION.
WHILE RESPONDENT IGNORES WEPPNER'S REMARKS IT SUGGESTS THAT
RODECKER'S STATEMENT IS PROTECTED BY SECTION 7116(E). RESPONDENT ARGUES
THAT, OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC), TINKER AIR FORCE BASE,
OKLAHOMA, 6 FLRA NO. 32 (1981, CONTROLS THE IMPACT OF RODECKER'S REMARK.
I DISAGREE. AIR LOGISTICS CENTER, SUPRA, IS INDEED CLEARLY ON POINT TO
THE SITUATION HERE. THERE THE AUTHORITY STATED THAT 7116(E):
"PROTECTS THE EXPRESSION OF PERSONAL VIEWS, ARGUMENTS OR OPINIONS BY
MANAGEMENT, EMPLOYEES
OR UNION REPRESENTATIVES AS LONG AS SUCH EXPRESSION CONTAINS NO
THREAT OF REPRISAL OR FORCE OR
PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS."
HERE, THE STATEMENT WAS REPEATED TO LATHAM IN A COERCIVE SITUATION
EYE-BALL TO EYE-BALL WITH RODECKER IN AN INVESTIGATORY MEETING IN WHICH
RODECKER WAS RECOMMENDING DISCIPLINE. THE STATEMENT RAISES WITH IT THE
INFERENCE THAT LATHAM WAS NOT DOING HIS JOB AS A TRUCK DRIVER AND THAT
HIS PERFORMANCE WOULD BE ENHANCED IF HE SPENT MORE TIME ON HIS JOB THAN
WITH UNION MATTERS, ALTHOUGH THE VERY CONTRACT OR AGREEMENT UNDER WHICH
THE PARTIES WERE OPERATING ALLOWED USE OF OFFICIAL TIME FOR A STEWARD
WITHOUT RETRIBUTION. I CANNOT CONCEIVE OF A SITUATION WHERE AN EMPLOYEE
IN THE MIDDLE OF A DISCIPLINARY INVESTIGATION, BY A SUPERVISOR WHO HAD
MADE SUCH A STATEMENT AND WHO IS INSTRUMENTAL IN DECIDING WHETHER OR NOT
TO DISCIPLINE HIM WOULD NOT BE COERCED BY SUCH A STATEMENT. LIKEWISE, I
REJECT RESPONDENT'S CLAIM THAT THE STATEMENT WAS RESURRECTED BY THE
UNION IN A CONFRONTATIONAL MEETING, BUT WAS ORIGINALLY MADE IN
NON-COERCIVE CIRCUMSTANCES. THE FACT THAT THE STATEMENT WAS REPEATED,
EVEN IN RESPONSE TO A QUESTION FROM THE UNION, CLEARLY CARRIES IMPLIED
NEGATIVE CONSEQUENCES ESTABLISHING THAT RODECKER ACTUALLY MEANT THE
STATEMENT AS COERCIVE WHEN IT WAS ORIGINALLY MADE. ACCORDINGLY, IT IS
FOUND THAT RODECKER'S STATEMENT REPEATED AT THE INVESTIGATORY MEETING
CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.
MOVING TO THE GENERAL COUNSEL'S CONTENTION THAT RESPONDENT'S ACTIONS
IN DENYING LATHAM OFFICIAL TIME TO PERFORM REPRESENTATIONAL DUTIES ON
FEBRUARY 2, FEBRUARY 20, MARCH 11 AND APRIL 23, 1981 RESPECTIVELY, AND,
THE APRIL 30 REFUSAL TO ALLOW LATHAM TO MEET WITH HIS UNION
REPRESENTATIVE CONCERNING HIS OWN PROPOSED DISCIPLINARY ACTION AND ON
MAY 1 FOR ASSISTANCE IN COMPLETING ON OWCP FORM CONSTITUTING PATENT
BREACHES OF CERTAIN ARTICLES OF THE CONTRACT ARE ALL IN VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE STATUTE.
CASE LAW IS WELL SETTLED THAT ABSENT A PATENT BREACH OR LACK OF GOOD
FAITH ON THE CHARGED PARTY'S PART, THE PROPER FORUM TO RESOLVE DISPUTES
OVER THE MEANING OR PROVISIONS CONTAINED IN AN AGREEMENT WOULD BE THAT
WHICH THE PARTIES THEMSELVES ADOPTED FOR SUCH PURPOSE. FOOD SAFETY AND
QUALITY SERVICE, U.S. DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C., 7
FLRA NO. 103 (1980); FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL
OFFICE, 7 FLRA NO. 23 (1981). WHILE CONTRACT INTERPRETATIONS IN FEDERAL
SECTOR GENERALLY HAVE BEEN LEFT TO THE MEANS ESTABLISHED IN THE PARTIES
AGREEMENTS, PERSISTENT BREACHES MAY WELL BE FOUND TO CONSTITUTE A
UNILATERAL CHANGE IN CONTRACT TERMS. FOOD SAFETY AND QUALITY SERVICE,
SUPRA.
THE NUB OF THE GENERAL COUNSEL'S CASE IS INDEED THAT THE PERSISTENT
BREACHES WITH RESPECT TO LATHAM ARE SO SERIOUS AS TO CONSTITUTE A CHANGE
IN THE CONTRACT TERMS IN VIOLATION OF THE STATUTE.
IN ISOLATION, EACH OF THE DENIALS APPEAR INNOCUOUS AND LATHAM INDEED
MIGHT APPEAR MERELY OVER-ZEALOUS. HOWEVER, COUPLED WITH THE STATEMENTS
MADE TO MCDESHEN AND LATHAM, IT APPEARS THAT RESPONDENT'S ACTIONS
AGAINST LATHAM IN TOTALITY INDEED ROSE TO THE LEVEL OF PERSISTENT
BREACHES OF THE PARTIES AGREEMENT AND CONSTITUTED UNILATERAL CHANGES IN
THOSE ARTICLES WITHOUT NEGOTIATIONS WITH THE UNION.
THE RECORD SHOWS THAT PRIOR TO FEBRUARY 1981 ALTHOUGH ACTIVE AS A
STEWARD, LATHAM CONFORMED WITH THE CONTRACT TERMS, BY THE ACCOUNTS OF
RESPONDENT'S OWN WITNESSES. THEN SUDDENLY AND INEXPLICABLY LATHAM IS
ALLEGED TO HAVE CHANGED. ACCORDING TO RESPONDENT, HE SUDDENLY BEGAN TO
DISREGARD THE CONTRACTUAL REQUIREMENTS. THE RECORD DISCLOSES THAT LATHAM
SOUGHT TO CONFORM WITH THE CONTRACT TERMS, FOR IN EACH REQUEST HE TOLD
RESPONDENT HIS PURPOSE FOR ASKING FOR TIME. HE GAVE SUCH REASONS AS:
RESEARCH A SAFETY VIOLATION, SPEAK WITH THE CHIEF STEWARD TO PREPARE FOR
A MEETING INVOLVING A GRIEVANCE, AND SEE THE CHIEF STEWARD ABOUT AN
INJURY FORM, BUT IN EACH CASE HE WAS DENIED. HOWEVER, THERE WAS NO
OPPORTUNITY FOR HIM TO STATE HIS DESTINATION OR FOR THAT MATTER FOLLOW
ANY OF THE OTHER CONTRACT LANGUAGE SINCE THE OFFICIAL TIME WAS ALWAYS
DENIED. FURTHERMORE, RESPONDENT REFUSED TO ALLOW HIM TIME TO PREPARE
GRIEVANCES FOR HIMSELF OR OTHERS, TO PREPARE FOR A ARBITRATION HEARING
AND TO FILL OUT AN INJURY FORM WHICH DESPITE RESPONDENT'S CONTENTION WAS
OFTEN FILLED OUT BY SUPERVISORS, WAS HIS CONTRACTUAL RIGHT. THIS COURSE
OF CONDUCT AGAINST LATHAM IN SUMMARILY DENYING OFFICIAL TIME CLEARLY
SHOWS THAT RESPONDENT HAD SUSPENDED THE COLLECTIVE BARGAINING AGREEMENT
AS IT RELATED TO LATHAM'S RIGHTS AS A STEWARD AND EMPLOYEE. SUCH A
SUSPENSION VIOLATES SECTION 7116(A)(1) AND (5) OF THE STATUTE. SEE
VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, 4 FLRA NO. 59
(1980).
RESPONDENT CONTENDS THAT LATHAM DID NOT FOLLOW THE CONTRACTUAL
PROVISIONS, IN ESSENCE, BY FAILING TO STATE THE WHAT, WHERE AND WHY WHEN
REQUESTING OFFICIAL TIME. AS ALREADY NOTED, A REVIEW OF THE RECORD SHOWS
THAT LATHAM DID PROVIDE SUCH INFORMATION WHEN GIVEN THE OPPORTUNITY TO
DO SO, BUT THAT RESPONDENT'S SUPERVISORS WERE OBVIOUSLY UNDER
INSTRUCTION NOT TO ALLOW HIM ANY OFFICIAL TIME. IN FACT, SUPERVISOR
RODECKER TOLD LATHAM ON FEBRUARY 2 THAT HE HAD BEEN "TOLD NOT TO LET YOU
GO." SIMILARILY AS AN AFTERTHOUGHT, RESPONDENT NOW CONTENDS THAT LATHAM
IMPROPERLY REQUESTED TIME FOR A SAFETY MATTER. ALTHOUGH THIS MAY INDEED
BE TRUE, THE SAFETY ARTICLE WAS NOT RAISED AT THAT TIME, BUT
RESPONDENT'S TRUE MOTIVATION WAS REVEALED BY RODECKER. AND THAT
MOTIVATION DISCLOSES THAT LATHAM WAS NOT GOING TO BE ALLOWED OFFICIAL
TIME UNDER ANY CIRCUMSTANCES. LIKEWISE, ON FEBRUARY 20, LATHAM PROVIDED
INFORMATION WHICH WAS CONSISTENT WITH THE CONTRACT LANGUAGE, BUT WAS
SIMPLY TOLD "NO, YOU ARE NOT GOING." RESPONDENT'S TREATMENT OF LATHAM AS
A PARTICIPANT IN THE ARBITRATION PROCEEDING IS THE SAME VEIN AS THE
ACTIONS ABOVE. CLEARLY IN THAT INSTANCE HE WAS NOT PROVIDED RIGHTS UNDER
THE CONTRACT ALTHOUGH HE APPARENTLY SOUGHT TO COMPLY WITH ITS TERMS.
WITH RESPECT TO THE OWCP CA-1 FORM, THE CONTRACT PROVIDES IN ARTICLE
33, THAT MANAGEMENT HAS AN OBLIGATION TO PROMPTLY REPORT SUCH INJURIES.
PAST PRACTICE HAS ESTABLISHED THAT MANAGEMENT HAS COMPLETED SUCH FORMS
FOR EMPLOYEES, EVEN LATHAM. HERE, HOWEVER, RESPONDENT NOT ONLY COMPLETED
THE FORM BUT SIGNED LATHAM'S NAME AND SUBMITTED THE FORM EVENTHOUGH HE
WAS AT THAT TIME REQUESTING REPRESENTATION. IN SUCH CIRCUMSTANCES,
LATHAM WAS OBVIOUSLY DENIED HIS RIGHT TO REPRESENTATION. FINALLY,
RESPONDENT'S ACTION IN NOT ALLOWING LATHAM AN OPPORTUNITY TO MEET WITH A
UNION REPRESENTATIVE IN CONNECTION WITH A PENDING DISCIPLINARY ACTION
ONCE MORE ESTABLISHED THAT RESPONDENT HAD SUSPENDED THE INDIVIDUAL
RIGHTS OF THE AGREEMENT WITH RESPECT TO LATHAM. THERE IS NO QUESTION
THAT THE CONTRACT PROVIDED OFFICIAL TIME FOR SUCH A PURPOSE. IN ALL THE
CIRCUMSTANCES, IT IS FOUND THAT RESPONDENT'S TOTAL CONDUCT HEREIN IN
DENYING STEWARD LATHAM OFFICIAL TIME TO PERFORM REPRESENTATIONAL DUTIES
ON FEBRUARY 2, FEBRUARY 20, MARCH 11 AND APRIL 23, RESPECTIVELY AND BY
DENYING LATHAM OFFICIAL TIME ON APRIL 30 AND MAY 1 TO MEET WITH HIS
UNION REPRESENTATIVE REVEALED A COURSE OF CONDUCT CONSTITUTING A CLEAR
AND PATENT BREACH OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
PARTIES IN VIOLATION OF SECTION 7116(A)(1) AND (5). /4/
IN LIGHT OF THE ABOVE, IT IS RECOMMENDED THAT THE AUTHORITY ADOPT THE
FOLLOWING ORDER.
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.6 OF THE RULES AND
REGULATIONS, 45 RED.REG. 3482, 3510 (1980), IT IS HEREBY ORDERED THAT
ABERDEEN PROVING GROUND, U.S. DEPARTMENT OF THE ARMY SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY INSTITUTING CHANGES WITH RESPECT TO USAGE OF
OFFICIAL TIME BY A UNION
STEWARD, AND PROVIDING OFFICIAL TIME FOR EMPLOYEES TO MEET WITH THEIR
UNION REPRESENTATIVE
WITHOUT PROVIDING NOTICE TO, AND UPON REQUEST, BARGAINING WITH
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF
ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
(B) THREATENING, COERCING, INTIMIDATING EMPLOYEES THROUGH STATEMENTS
CONCERNING THEIR UNION
OR PROTECTED ACTIVITIES.
(C) IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR COERCE
OUR EMPLOYEES IN THE
EXERCISE BY THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, MEET AND NEGOTIATE WITH THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 2424, AFL-CIO CONCERNING ANY PROPOSED
CHANGES IN USAGE OF
OFFICIAL TIME FOR UNION STEWARDS AND, ANY CHANGES IN OFFICIAL TIME
FOR ALLOWING EMPLOYEES TO
MEET WITH THEIR UNION REPRESENTATIVE CONCERNING PROPOSED DISCIPLINARY
ACTION OR FILLING OUT
OWCP FORM CA-1.
(B) POST AT RAILROAD AND ROADS DIVISION, ABERDEEN PROVING GROUND,
ABERDEEN, MARYLAND
FACILITY COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO
BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY
SHALL BE SIGNED BY THE
COMMANDING GENERAL, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING GENERAL SHALL TAKE
REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) NOTIFY THE 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.
/1/ THE GENERAL COUNSEL'S MOTION TO CORRECT THE TRANSCRIPT NUMBERS IS
GRANTED.
/2/ NOTING THAT NO CHARGE HAS BEEN FILED, RESPONDENT'S CONTENTION AT
THE HEARING AND IN ITS BRIEF THAT THE UNION VIOLATED SECTION 7116(B)(1)
AND (5) IS REJECTED.
/3/ ARTICLE 33-- SECTION 33.03 PROVIDES: THE FULL ASSISTANCE OF
OFFICIALS OF THE EMPLOYER WILL BE MADE AVAILABLE TO THE INJURED
EMPLOYEE. THESE OFFICIALS WILL BE RESPONSIBLE FOR REQUIRING THE
REPORTING . . . ON OWCP FORM CA-1.
ARTICLE 33-- SECTION 33.06 PROVIDES: IT IS UNDERSTOOD THAT AN
EMPLOYEE WHO HAS SUFFERED A JOB RELATED ILLNESS OR INJURY IS ENTITLED TO
UNION REPRESENTATION UPON THE REQUEST OF THE EMPLOYEE.
/4/ BASED ON THE FOREGOING, IT IS UNNECESSARY TO DECIDE AS CONTENDED
BY THE GENERAL COUNSEL THAT RESPONDENT'S REFUSAL TO GRANT OFFICIAL TIME
TO LATHAM WITHOUT STATING "COMPELLING REASONS TO THE CONTRARY VIOLATED
THE STATUTE." ASSUMING ARGUENDO THAT THE CASE TURNED ON THIS MATTER, IT
APPEARS TO THE UNDERSIGNED THAT BASED ON THE RECORD AND WITHOUT THE
MOTIVATION REVEALED, THE MATTER MIGHT INDEED BE ONE FOR ARBITRATION
UNDER THE PARTIES AGREEMENT.
ERICK J. GENSER, ESQ., FOR THE GENERAL COUNSEL
CAPTAIN JOHN C. WAGNER, FOR THE RESPONDENT
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 INSTITUTE CHANGES CONCERNING THE PROCEDURES FOR USAGE OF
OFFICIAL TIME BY A UNION STEWARD AND PROVIDING OFFICIAL TIME FOR
EMPLOYEES TO MEET WITH THEIR UNION REPRESENTATIVE CONCERNING PROPOSED
DISCIPLINARY ACTIONS WITHOUT FIRST NOTIFYING THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424,
AFL-CIO AND AFFORDING IT THE OPPORTUNITY TO BARGAIN CONCERNING THE
IMPLEMENTATION OF SUCH CHANGES AND THEIR IMPACT ON ADVERSELY AFFECTED
EMPLOYEES.
WE WILL NOT THREATEN OR COERCE EMPLOYEES BY MAKING STATEMENTS
CONCERNING THEIR PARTICIPATION IN UNION OR PROTECTED ACTIVITY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
WE WILL, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH ONLY WITH THE
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 2424, AFL-CIO, WITH RESPECT TO CHANGES IN PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING THE GENERAL WORKING CONDITIONS OF
EMPLOYEES AT ABERDEEN PROVING GROUND, MARYLAND.
(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 III,
WHOSE ADDRESS IS: 111 18TH STREET, RM. 700, P.O. BOX 33758, WASHINGTON,
D.C., 20033-0758 AND WHOSE TELEPHONE NUMBER IS: (202) 653-8507. 770801
0000740
23 FLRA-ALJ; CASE NO. 9-CA-20166 NOVEMBER 17, 1982
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, RESPONDENT, AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, CHARGING PARTY
BEFORE: WILLIAM NAIMARK, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON MARCH 22,
1982 BY THE ACTING REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS
AUTHORITY, SAN FRANCISCO, CALIFORNIA REGION, A HEARING WAS HELD BEFORE
THE UNDERSIGNED ON JUNE 17, 1982.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREIN CALLED THE STATUTE OR ACT). IT IS BASED ON A
FIRST AMENDED CHARGE FILED ON FEBRUARY 18, 1982 BY AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREIN CALLED THE UNION), AGAINST
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION,
BALTIMORE, MARYLAND (HEREIN CALLED RESPONDENT).
THE COMPLAINT ALLEGED THAT ON FEBRUARY 2, 1982, AND AGAIN ON FEBRUARY
5, 1982 THE UNION REQUESTED RESPONDENT TO PROVIDE INFORMATION IN THE 7B
(PERSONNEL) FILES OF THE SERVICE REPRESENTATIVES AT THE SAN RAFAEL
DISTRICT OFFICE; THAT THE INFORMATION WAS NECESSARY AND RELEVANT TO
INVESTIGATE AND PREPARE FOR A THIRD STEP APPRAISAL GRIEVANCE OF A
SERVICE REPRESENTATIVE AT SAID OFFICE; THAT RESPONDENT FAILED AND
REFUSED TO FURNISH SAID INFORMATION AND THUS REFUSED TO COMPLY WITH
SECTION 7114(B)(4) OF THE STATUTE-- ALL IN VIOLATION OF SECTION
7116(A)(1), (5), AND (8) THEREOF.
RESPONDENT'S ANSWER, DATED APRIL 5, 1982, ADMITTED THE REQUEST TO THE
INFORMATION AS AFORESAID, BUT DENIED ITS REFUSAL TO FURNISH SAME AS WELL
AS THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN AND STILL IS THE
CERTIFIED EXCLUSIVE REPRESENTATIVE OF A NATIONWIDE CONSOLIDATED UNIT OF
RESPONDENT'S EMPLOYEES, INCLUDING ALL GENERAL SCHEDULE (GS) EMPLOYEES IN
REGION IX (SAN FRANCISCO REGION), BUREAU OF DISTRICT OPERATIONS,
EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS, PROFESSIONALS, AND
OTHER SPECIFIED GROUPS.
2. THE AFORESAID UNIT EMPLOYEES HAVE BEEN, SINCE SEPTEMBER 16, 1977,
COVERED BY A COLLECTIVE BARGAINING AGREEMENT ENTERED INTO ON THAT DATE
BETWEEN THE OFFICE OF PROGRAMS OPERATIONS, FIELD OPERATIONS IN THE SAN
FRANCISCO REGION, AND THE COUNCIL OF DISTRICT OFFICE LOCALS SAN
FRANCISCO REGION.
3. RESPONDENT'S SAN FRANCISCO REGION IS DIVIDED INTO NINE DISTRICTS.
INCLUDED THEREIN ARE THE SAN RAFAEL, WALNUT CREEK, AND FREMONT DISTRICT
OFFICES.
4. CLAIMS REPRESENTATIVE JAN O'NEAL, WHO WORKS IN THE FREMONT OFFICE,
IS, AND HAS BEEN AT ALL TIMES MATERIAL HEREIN, THE NETWORK CHIEF STEWARD
FOR THE BAY AREA IN CALIFORNIA. THIS AREA ALSO ENCOMPASSES THE SAN
RAFAEL AND WALNUT CREEK DISTRICTS. AS CHIEF STEWARD O'NEAL HANDLES ALL
THIRD STEP GRIEVANCES IN HER NETWORK. THIS ASSIGNMENT INVOLVES
INVESTIGATING GRIEVANCES, REVIEWING DOCUMENTATION IN CONNECTION
THEREWITH, AND MAKING AN ORAL PRESENTATION TO THE FACTFINDERS OF
GRIEVANCES AT THAT STAGE.
5. UNDER DATE OF NOVEMBER 12, 1981 NICHOLAS H. WILLIAMS, ONE OF FOUR
SERVICE REPRESENTATIVES AT THE SAN RAFAEL OFFICE, FILED A GRIEVANCE RE
HIS PERFORMANCE APPRAISAL. IN A PERFORMANCE APPRAISAL FOR THE YEARLY
PERIOD FROM OCTOBER 1, 1980 RESPONDENT HAD RATED WILLIAMS AS
UNSATISFACTORY IN RESPECT TO: (A) FUNCTIONING IN INTERPERSONAL
SITUATIONS, (B) ORAL COMMUNICATIONS, AND (C) INTERVIEWING. THE RATINGS
WERE BASED ON ALLEGED DISCOURTESY OF WILLIAMS TO THE PUBLIC, AS WELL AS
COMPLAINTS BY HIS CO-WORKERS REGARDING HIS CONDUCT AND ACTIONS TOWARD
THEM.
6. THE APPRAISAL FOR EACH EMPLOYEE IS DESIGNATED AS EMPLOYEE
APPRAISAL AND PERFORMANCE RATING CERTIFICATION. IT IS THE SUPERVISOR'S
ASSESSMENT FOR PROMOTIONAL PURPOSES OF THE EMPLOYEE'S KNOWLEDGES,
ABILITIES, AND PERSONAL CHARACTERISTICS. LISTED THEREIN ARE 17
CATEGORIES INVOLVING THE EMPLOYEE'S SKILL AND PERFORMANCE TRAITS TO BE
RATED BY THE SUPERVISOR. THE APPLICABLE RATINGS TO BE GIVEN ARE AS
FOLLOWS:
N-- IRRELEVANT OR NO OPPORTUNITY TO OBSERVE EMPLOYEE'S PERFORMANCE.
A-- DID NOT MEET REQUIREMENTS. /1/
B-- USUALLY MEET BUT RARELY EXCEEDS MINIMUM REQUIREMENTS.
C-- MET AND SOMETIMES EXCEEDS REQUIREMENT.
D-- EXCEEDED REQUIREMENTS BUT NOT TO AN EXCEPTIONAL
E-- EXCEEDED REQUIREMENTS TO AN EXCEPTIONAL DEGREE.
7. THE AFORESAID GRIEVANCE FILED BY WILLIAMS RECITED THAT THE
PERFORMANCE APPRAISAL WAS IN ERROR SINCE "IT WAS NOT BASED UPON THE
REQUIRED TWO SUBSTANTIVE PERFORMANCE INTERVIEWS. THERE WERE NO SUMMARY
DISCUSSION MEMOS IN THE 7B /2/ FROM PRIOR SUPERVISORS DURING THE RATING
PERIOD". IN THE GRIEVANCE WILLIAMS SOUGHT, AS RELIEF, THAT THE RATING
FOR ITEMS RELATING TO "ORAL COMMUNICATION" AND "INTERVIEWING" BE CHANGED
TO A C.
8. IN A MEMORANDUM DATED NOVEMBER 16, 1981 OPERATION SUPERVISOR
PATRICIA ROBINSON ACKNOWLEDGED RECEIPT OF WILLIAMS' STEP ONE GRIEVANCE.
ROBINSON STATED SHE HAD REVIEWED THE EMPLOYEE'S FILE; THAT BETWEEN
OCTOBER 10, 1980 AND SEPTEMBER 14, 1981 THERE WERE SEVEN RECORDS OF
PERFORMANCE DISCUSSIONS AND TWO DISCIPLINARY ACTIONS DEALING WITH THE
UNACCEPTABLE NATURE OF WILLIAMS' INTERVIEWING PRACTICES AND
COMMUNICATION WITH THE PUBLIC. ACCORDINGLY, ROBINSON ADVISED THE
EMPLOYEE THAT THE RATINGS AS TO "ORAL COMMUNICATIONS" AND "INTERVIEWING"
COULD NOT BE CHANGED. /3/
9. IN DECEMBER 1981 WILLIAMS' GRIEVANCE WAS RECORDED AS A STEP THREE
GRIEVANCE. AREA DIRECTOR CHRISTINE CANNON APPOINTED LEA RICHARDS, SAN
MATEO OPERATIONS SUPERVISOR, TO CONDUCT A FACTFINDING INVESTIGATION IN
ACCORDANCE WITH ARTICLE 20, SECTION H OF THE COLLECTIVE BARGAINING
AGREEMENT.
10. WHEN THE GRIEVANCE REACHED STEP THREE JAN I'NEAL WAS DESIGNATED
AS WILLIAMS' REPRESENTATIVE TO HANDLE THE MATTER AS HIS UNION
REPRESENTATIVE. O'NEAL DISCUSSED THE MATTER WITH WILLIAMS ON JANUARY 11,
1982, AND SHE DECIDED ADDITIONAL INFORMATION WAS NEEDED TO PROPERLY
REPRESENT HIM. THE UNION OFFICIAL DECIDED IT WAS NECESSARY TO EXAMINE
THE LAST APPRAISALS OF THE OTHER THREE SERVICE REPRESENTATIVES AND
COMPARE THEIR RATINGS WITH THAT OF WILLIAMS.
11. IN A MEMO DATED JANUARY 11, 1982, ADDRESSED TO DISTRICT MANAGER
LEUIN, UNION REPRESENTATIVE O'NEAL STATED THAT IN ORDER TO PREPARE AND
PRESENT THE THIRD STEP GRIEVANCE OF WILLIAMS SHE REQUESTED THE
FOLLOWING:
1. SANITIZED PHOTOCOPIES OF ALL APPRAISALS ISSUED TO SERVICE
REPRESENTATIVES IN THE SAN
RAFAEL DISTRICT OFFICE FOR THE MOST RECENT APPRAISAL PERIOD.
2. THE NAMES OF MR. WILLIAMS IMMEDIATE SUPERVISORS AND THE PERIODS
THROUGHOUT WHICH EACH
SUPERVISED HIM DURING THE LAST APPRAISAL PERIOD.
12. UNDER DATE OF JANUARY 27, 1982 LEA RICHARDS FORWARDED TO O'NEAL
THE DATA REQUESTED RE WILLIAMS' SUPERVISORS, TOGETHER WITH THREE
SANITIZED APPRAISALS. SAID APPRAISALS, PURPORTEDLY THE RATINGS /4/ OF
THE OTHER SERVICE REPRESENTATIVES, CONTAINED NO NAMES AND EXCLUDED THE
NAMES OF THE EMPLOYEE'S SUPERVISORS AS WELL AS THE PERIOD OF THE
APPRAISAL.
13. AFTER DETERMINING THAT THE APPRAISALS SENT WERE INSUFFICIENT TO
PROCEED WITH THE GRIEVANCE, O'NEAL CONCLUDED IT WOULD BE NECESSARY TO
EXAMINE THE 7B FILES OF THE SERVICE REPRESENTATIVES. THE RECORD REFLECTS
THAT, FOR EACH EMPLOYEE, MANAGEMENT MAINTAINS A 7B FILE WHICH IS
ACTUALLY A SERIES OF FILES CONTAINING PERSONNEL INFORMATION THAT IS
UTILIZED AT THE TIME AN APPRAISAL IS MADE. THIS FILE INCLUDES, INTER
ALIA, ITEMS SUCH AS (A) MARITAL STATUS, (B) HEALTH DATA, (C) LATEST
APPRAISAL, (D) PERFORMANCE DISCUSSIONS WHICH SUPERVISORS HAD WITH THE
EMPLOYEE, (E) GRIEVANCES FILED, (F) COMPLIMENTARY LETTERS, (G) COMPLAINT
LETTERS, (H) DISCUSSIONS WITH EMPLOYEE RE HIS LEAVE PROBLEMS, AND (I)
DISCIPLINES OR ADMONISHMENTS. /5/
14. ON FEBRUARY 2, 1982 O'NEAL CALLED GAIL PETERSON, ASSISTANT
DISTRICT MANAGER AT SAN RAFAEL, AND TOLD PETERSON THAT SHE NEEDED TO
HAVE ACCESS TO THE 7B FILES OF ALL THE SERVICE REPRESENTATIVES IN ORDER
TO PROCEED WITH THE GRIEVANCE. /6/ THE MANAGER INFORMED THE UNION
REPRESENTATIVES SHE WOULD SPEAK WITH LEUIN, ALTHOUGH IT WAS HER FEELING
THAT O'NEAL WOULD HAVE TO OBTAIN RELEASES FROM THE SERVICE
REPRESENTATIVES. O'NEAL WAS, HOWEVER, UNABLE TO PROCURE THE RELEASES TO
REVIEW THE 7B FILES. /7/
15. IN A LETTER DATED FEBRUARY 5, 1982 O'NEAL WROTE RICHARDS
REQUESTING PERMISSION TO REVIEW THE 7B FILES OF THE SERVICE
REPRESENTATIVES AT SAN RAFAEL. SHE MENTIONED THAT THE PHOTOCOPIES OF
APPRAISALS FOR THE THREE SERVICE REPRESENTATIVES WERE SO SANITIZED AS TO
BE USELESS; THAT RESPONDENT SHOULD NOT REQUIRE SIGNED RELEASES FROM
THESE INDIVIDUALS BEFOREHAND; AND THAT THE DOCUMENTATION IN THESE FILES
WAS NECESSARY AND RELEVANT TO THE PREPARATION OF HER PRESENTATION TO THE
FACTFINDER. /8/ RESPONDENT DID NOT ACCEDE TO THE REQUEST BY O'NEAL TO
HAVE ACCESS TO THE 7B FILES OF THE OTHER THREE SERVICE REPRESENTATIVES.
16. IN A CONVERSATION HELD ON FEBRUARY 19, 1982-- THE DAY AFTER THE
CHARGE WAS FILED-- O'NEAL INFORMED RICHARDS THAT THE INFORMATION IN THE
7B FILE WAS NEEDED TO DECIDE WHETHER WILLIAMS HAD BEEN TREATED
DIFFERENTLY RE HIS APPRAISAL THAN THE OTHER SERVICE REPRESENTATIVES.
ALTHOUGH RICHARDS SAID SHE WOULD TRY TO PROCURE THE DATA, THE FILES OF
THE THREE OTHER SERVICE REPRESENTATIVES WERE NEVER PRODUCED FOR O'NEAL'S
REVIEW AND THE LATTER WAS NOT GRANTED ACCESS THERETO IN CONNECTION WITH
WILLIAMS' GRIEVANCE OF NOVEMBER 12, 1981. /9/
CONCLUSIONS
THE CENTRAL ISSUE HEREIN IS WHETHER, BASED UPON THE REQUEST MADE BY
THE UNION, RESPONDENT WAS REQUIRED TO FURNISH IT, AS THE REPRESENTATIVE
GRIEVANT NICHOLAS B. WILLIAMS, A SERVICE REPRESENTATIVE, THE 7B
(PERSONNEL) FILES OF THREE OTHER SERVICE REPRESENTATIVES WHO WORKED WITH
WILLIAMS IN THE SAN RAFAEL DISTRICT OFFICE.
GENERAL COUNSEL INSISTS THAT, UNDER SECTION 7114(B)(4) OF THE STATUTE
IT IS CLEARLY ENTITLED TO THE REQUESTED INFORMATION. IT ASSERTS THAT THE
INFORMATION IN THE PERSONNEL FILES CONCERNING THE OTHER THREE SERVICE
REPRESENTATIVES IS RELEVANT AND NECESSARY TO THE UNION'S INVESTIGATION
OF POSSIBLE DISPARATE TREATMENT IN THE APPRAISAL OF WILLIAMS. THUS, THE
UNION MAINTAINS, ACCESS TO THE 7B FILES OF THE GRIEVANT'S CO-WORKERS
WILL ENABLE IT TO FULFILL ITS REPRESENTATIONAL OBLIGATIONS.
AS PART AND PARCEL OF ITS OBLIGATION TO BARGAIN IN GOOD FAITH, AN
AGENCY MAY BE REQUIRED UNDER THE STATUTE TO FURNISH CERTAIN DATA TO THE
BARGAINING AGENT OF UNIT EMPLOYEES. THUS, SECTION 7114(B)(B) MANDATES
THAT THE AGENCY SUPPLY, UPON REQUEST, AND TO THE EXTENT NOT PROHIBITED
BY LAW, DATA "WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND
PROPER DISCUSSION, UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE
SCOPE OF COLLECTIVE BARGAINING." IN ACCORDANCE THEREWITH, THE AUTHORITY
HAS MADE IT CLEAR THAT THE COLLECTIVE BARGAINING REPRESENTATIVE IS
ENTITLED, UPON REQUEST, TO INFORMATION FROM AN EMPLOYEE WHICH IS
NECESSARY AND RELEVANT TO INTELLIGENTLY REPRESENT EMPLOYEES. MOREOVER,
THIS OBLIGATION ENCOMPASSES FURNISHING DATA TO A UNION WHICH IS RELEVANT
AND NECESSARY TO PURSUE, OR PROSECUTE, A GRIEVANCE ON BEHALF OF
REPRESENTED EMPLOYEES. U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES,
CALIFORNIA, 10 FLRA NO. 47; BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA, 8 FLRA
NO.
IN ORDER TO IMPOSE THE FOREGOING DUTY UPON AN EMPLOYER, A UNION WHICH
REPRESENTS AN EMPLOYEE IN A GRIEVANCE PROCEEDING MUST DEMONSTRATE THAT
THE INFORMATION SOUGHT RELATES TO THE CONTROVERSY, OR SUBJECT MATTER IN
DISPUTE, AND THAT IT NEEDS THE DATA TO CARRY OUT ITS FUNCTION AS THE
REPRESENTATIVE OF SAID EMPLOYEE. /10/ IN THE CASE AT BAR THE UNION
DETERMINED IT NEEDED ADDITIONAL INFORMATION TO ASCERTAIN WHETHER
WILLIAMS HAD RECEIVED DISPARATE TREATMENT AT THE HANDS OF RESPONDENT.
TO THIS END, AND IN FURTHERANCE OF ITS PROSECUTION OF THE GRIEVANCE ON
BEHALF OF FILES OF THREE OTHER EMPLOYEES WITH WHOM WILLIAMS WORKED. AS
INDICATIVE OF THE PURPOSE FOR WHICH SHE DESIRED TO EXAMINE THE FILES,
O'NEAL TOLD FACTFINDER RICHARDS ON FEBRUARY 18, 1982-- THE DAY FOLLOWING
THE CHARGE BEING FILED-- THAT SHE NEEDED THE FILES "TO DECIDE WHETHER
MR. WILLIAMS HAD BEEN TREATED DIFFERENTLY THAN THE OTHER SERVICE
REPRESENTATIVES WHEN HE RECEIVED HIS APPRAISAL."
IT MAY WELL BE TRUE THAT SOME OF THE MATERIAL IN THE 7B FILES OF THE
CO-WORKERS WOULD BE RELEVANT AND NECESSARY TO PROPERLY INVESTIGATE THE
RATING ASSIGNED WILLIAMS. THUS, AS THE UNION AVERS, ANY COMPLAINT
REGISTERED AGAINST THE OTHER SERVICE REPRESENTATIVES MIGHT ESTABLISH
DISPARATE TREATMENT IF SUCH EMPLOYEE STILL RECEIVED A SATISFACTORY
RATING RE "ORAL COMMUNICATION" AND "INTERVIEWING." HOWEVER, THE UNION
HEREIN DID NOT LIMIT ITS REQUEST TO SUCH PARTICULARS. RATHER DID IT SEE
FIT TO EXAMINE THE ENTIRE PERSONNEL FILE. IN SEEKING ACCESS TO THE FILE
O'NEAL WAS CLEARLY REQUESTING DATA THAT COULD NOT BE CONSIDERED RELEVANT
OR NECESSARY TO A PROSECUTION OF THE GRIEVANCE. THUS, 7B CONTAINED, AS
TO EACH EMPLOYEE, INFORMATION RE HIS HEALTH AND MARITAL STATUS,
DISCUSSIONS HAD BETWEEN HIM AND SUPERVISORS CONCERNING PERFORMANCE AND
LEAVE PROBLEMS, AND GRIEVANCES FILED. IT SEEMS APPARENT THAT MOST OF
THESE ITEMS, IF NOT ALL, WOULD FALL OUTSIDE THE PURVIEW OF 7114(B)(B) OF
THE STATUTE AS BEING UNNECESSARY TO A PROPER REPRESENTATION OF WILLIAMS
IN RESPECT TO HIS PARTICULAR GRIEVANCE. (CF. U.S. CUSTOMS SERVICE
REGION VII, LOS ANGELES, CALIFORNIA, 10 FLRA NO. 47 WHERE, IN
CONNECTION WITH A GRIEVANCE, REQUEST WAS MADE FOR DOCUMENTS USED IN A
PROMOTION PROCESS BY THE SELECTING OFFICIALS).
IN ITS BRIEF GENERAL COUNSEL ASSERTS THAT RESPONDENT CANNOT CONTEND
THAT THE REQUEST BY THE UNION WAS TOO BROAD SO AS TO EXCUSE COMPLIANCE
THEREWITH. IT IS ARGUED THAT THE EMPLOYEE HAD BEEN DISCIPLINED FOR THE
SAME CONDUCT WHICH FORMED THE BASIS OF THE UNSATISFACTORY RATING; THAT
THE UNION WAS CONCERNED ABOUT SUCH ACTION AS WELL AS FUTURE DISCIPLINARY
ACTION FOR THE SAME CONDUCT. FURTHER, THE UNION HAD BEEN GRANTED ACCESS
TO THE SAME FILES IN RESPONDENT'S WALNUT CREEK OFFICE IN RE APPRAISAL
GRIEVANCES FILED BY THREE CLAIMS REPRESENTATIVES IN SAID OFFICE. UNDER
ALL THE CIRCUMSTANCES AND APPROPRIATE TO THIS GRIEVANCE, THE GENERAL
COUNSEL INSISTS, THE REQUEST SHOULD NOT BE DEEMED TOO BROAD.
NOTWITHSTANDING THE FOREGOING ASSERTIONS, THE FACT REMAINS THAT THE
GRIEVANCE HEREIN WAS CONFINED TO THE UNSATISFACTORY RATING IN THE
APPRAISAL RE "ORAL COMMUNICATION" AND "INTERVIEWING." ANY REQUEST FOR
DATA FROM RESPONDENT SHOULD, IN MY OPINION, RELATE TO THESE RATINGS.
THE TEST OF RELEVANCY AND MATERIALITY OF THE DATA REQUESTED MUST BE
MEASURED AGAINST THE NATURE OF THIS GRIEVANCE. /11/ THE AUTHORITY HAS
RECOGNIZED THAT A REQUEST FOR INFORMATION MAY BE TOO BROAD AND THEREFORE
NOT MEET THE TEST OF RELEVANCE. IN DIRECTOR OF ADMINISTRATION
HEADQUARTERS, U.S. AIR FORCE, 6 FLRA NO. 24 THE BARGAINING
REPRESENTATIVE REQUESTED INFORMATION CONCERNING "CONTRACTS FOR SERVICES
WHICH HAVE BEEN LET OR WHICH MAY HAVE AN IMPACT UPON BARGAINING UNIT
EMPLOYEES." THE UNION WHICH MAY HAVE AN IMPACT UPON BARGAINING UNIT
EMPLOYEES." THE UNION SOUGHT THE MATERIAL TO ADMINISTER A CONTRACT
PROVISION RE THE USE OF CONTRACTOR PERSONNEL. THE REQUEST WAS DEEMED
BROADER THAN WAS REASONABLY NECESSARY TO ADMINISTER OR POLICE THE
ADMINISTRATION OF THAT PARTICULAR CONTRACT PROVISION. AS ADMINISTRATIVE
LAW JUDGE DOWD CONCLUDED, THE GENERAL NATURE OF THE REQUEST PUT
MANAGEMENT IN THE POSITION OF HAVING TO SPECULATE AND CONJECTURE AS TO
WHAT DATA SHOULD BE FURNISHED. THERE WAS NO DEFINITION AS TO THE TYPES
OF CONTRACTS SOUGHT BY THE UNION EXCEPT A REFERENCE TO THOSE IMPACTING
UPON EMPLOYEES. ACCORDINGLY, THE INFORMATION REQUESTED WAS FOUND NOT
RELEVANT AND NECESSARY TO ADMINISTER THE PARTICULAR CONTRACTUAL CLAUSE.
WHILE THE CITED CASE DOES NOT INVOLVE A GRIEVANCE, THE RATIONALE IS
APPLICABLE HEREIN. CONTAINED WITHIN THE 7B FILES OF EMPLOYEES HEREIN ARE
MATTERS NOT NECESSARY TO THE UNION'S INVESTIGATING AND PROSECUTING
WILLIAMS' GRIEVANCE. RESPONDENT SHOULD NOT BE CALLED UPON TO GUESS WHICH
MATERIAL IS RELEVANT THERETO, AND MUST NOT BE FAULTED FOR REFUSING TO
COMPLY WITH A REQUEST SO BROAD IN SCOPE. THUS, I AM CONSTRAINED TO
CONCLUDE THAT, BASED ON THE REQUEST FOR THE 7B PERSONNEL FILES TO
INVESTIGATE THE GRIEVANCE PERTAINING TO THE PARTICULAR RATINGS OF
WILLIAMS IN HIS APPRAISAL, THE GENERAL COUNSEL HAS FAILED TO DEMONSTRATE
THE RELEVANCE AND NECESSITY THEREFORE AS REQUIRED UNDER SECTION
7114(B)(B) OF THE STATUTE. ACCORDINGLY, I FIND NO VIOLATION BY
RESPONDENT OF 7115(A)(1), (5), AND (8) OF THE STATUTE BY REASON OF ITS
REFUSAL TO PROVIDE THE UNION WITH ACCESS TO SAID FILES OR FURNISH SAME
AS REQUESTED. I RECOMMEND, THEREFORE, THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ENTER THE FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT HEREIN BE, AND IT HEREBY IS,
DISMISSED.
/1/ WILLIAMS RECEIVED AN A RATING IN THE THREE CATEGORIES HEREIN
ABOVE MENTIONED, WHICH WAS DEEMED UNSATISFACTORY.
/2/ THIS REFERS TO A PERSONNEL FILE DESCRIBED INFRA.
/3/ IN A MEMO DATED DECEMBER 15, 1981 DISTRICT MANAGER LEUIN ADVISED
WILLIAMS THAT, FOR THE SAME REASONS EXPRESSED BY SUPERVISOR ROBINSON,
THE STEP TWO GRIEVANCE RE THIS MATTER WAS ALSO DENIED.
/4/ RATINGS FOR ALL CATEGORIES EXCEPT AS TO "ORAL COMMUNICATIONS" AND
"INTERVIEWING" WERE SANITIZED. AS TO THESE TWO CATEGORIES, EACH OF THE
THREE EMPLOYEES SO RATED RECEIVED A D-- "EXCEEDS REQUIREMENTS BUT NOT TO
AN EXCEPTIONAL DEGREE."
/5/ THE RECORD REVEALS THE PERSONNEL FILE IS KEPT IN A LOCKED CABINET
AND ACCESS IS RESTRICTED. IT IS USED AT THE TIME OF APPRAISAL, FOR
CONTINUING DISCUSSIONS TO FOLLOW THE EMPLOYEE'S PROGRESS.
/6/ THE UNION OFFICIAL TESTIFIED SHE WAS LOOKING FOR DOCUMENTS
REFLECTING PROBLEMS THE OTHER SERVICE REPRESENTATIVES HAD WITH THE
PUBLIC OR EMPLOYEES. IT DOES NOT APPEAR FROM THE TRANSCRIPT, AND I DO
NOT FIND, THAT SHE MENTIONED THIS TO ASSISTANT DISTRICT MANAGER
PETERSON.
/7/ ARTICLE 7, SECTION B OF THE NEGOTIATED AGREEMENT PROVIDES THAT,
TO THE EXTENT NOT CONTRARY TO LAW OR CIVIL SERVICE POLICY, AN EMPLOYEE
OR HIS REPRESENTATIVE WHO IS AUTHORIZED IN WRITING, MAY HAVE ACCESS TO
REVIEW OR COPY DOCUMENTS IN THE 7B FILE IN THE PRESENCE OF A PROPER
MANAGEMENT OFFICIAL.
/8/ THE RECORD REFLECTS THAT, IN THE PAST, O'NEAL REQUESTED
PERFORMANCE DISCUSSIONS, DESK AUDITS, AND APPRAISALS FOR ALL SERVICE
REPRESENTATIVES IN THE WALNUT CREEK DISTRICT OFFICE. THIS DATA WAS
SOUGHT TO PREPARE AND PRESENT GRIEVANCES ON BEHALF OF SEVERAL SUCH
INDIVIDUALS. FURTHER, BY LETTER DATED JANUARY 14, 1982 DISTRICT MANAGER
CAROL L. DEWITT AGREED TO MAKE THE 7B FILES AVAILABLE FOR ALL THESE
EMPLOYEES.
/9/ IN MARCH 1982, WILLIAMS FILED ANOTHER GRIEVANCE BASED ON 1 5-DAY
SUSPENSION FOR BEING DISCOURTEOUS TO THE PUBLIC. O'NEAL REPRESENTED HIM
AT THE THIRD STEP AND REQUESTED ACCESS TO THE 7B FILES OF THE OTHER
SERVICE REPRESENTATIVES. ON APRIL 15, 1982 O'NEAL WAS ALLOWED TO REVIEW
THESE FILES. RESPONDENT GAVE THE UNION OFFICIAL COPIES OF DOCUMENTS FROM
WILLIAMS' FILE, BUT IT REFUSED TO FURNISH COPIES OF DOCUMENTS FROM THE
FILES OF THE NON-GRIEVING EMPLOYEES. IN A MEMO DATED APRIL 21, 1982
LEUIN ASKED O'NEAL TO EXPLAIN WHY SHE NEEDED EACH DOCUMENT AND WHAT
RELATIONSHIP IT HAD TO THE PENDING GRIEVANCE OF WILLIAMS RE HIS
SUSPENSION FOR DISCOURTESY IN OCTOBER AND NOVEMBER 1981.
/10/ CERTAIN TYPES OF INFORMATION REQUESTED IN THE PRIVATE SECTOR
HAVE BEEN CONSTRUED BY THE COURTS AS PRESUMPTIVELY RELEVANT. DATA SUCH
AS WAGE AND RELATED MATERIAL IS DEEMED TO BE AT THE CORE OF
EMPLOYER-EMPLOYEE RELATIONS. IN THESE INSTANCES THE EMPLOYER ASSUMES THE
BURDEN OF SHOWING LACK OF RELEVANCE. OTHERWISE, THE BURDEN IS UPON THE
UNION TO ESTABLISH THE RELEVANCE OF INFORMATION REQUESTED. SAN DIEGO
NEWSPAPER GUILD V. NLRB, 548 F.2D 863 (9TH CIRCUIT 1977; SOUTHWESTERN
BELL TELEPHONE CO., 173 NLRB NO. 29 (1968).
/11/ ALTHOUGH RESPONDENT ACCORDED THE UNION ACCESS TO 7B FILES AT
ANOTHER LOCATION, ITS ACTION WAS IN CONNECTION WITH A DIFFERENT
GRIEVANCE INVOLVING OTHER INDIVIDUALS. ITS CONDUCT IN THAT REGARD DOES
NOT, IN MY OPINION, FORECLOSE A REFUSAL TO FURNISH DATA RE WILLIAMS'
GRIEVANCE IF THE REQUEST IS NOT VALID.
WILSON SCHUERHOLZ, FOR THE RESPONDENT
STEFANIE ARTHUR, ESQ., FOR THE GENERAL COUNSEL
BARBARA LAWSON, FOR THE CHARGING PARTY 770801 0000730
23 FLRA-ALJ; CASE NO. 8-CA-20218 OCTOBER 22, 1982
SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND, RESPONDENT AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CHARGING PARTY
BEFORE: ISABELLE R. CAPPELLO, ADMINISTRATIVE LAW JUDGE
DECISION
THIS IS A PROCEEDING UNDER TITLE VII OF THE CIVIL SERVICE REFORM ACT
OF 1978, /1/ 5 U.S.C. 7101 ET SEQ. (SUPP. IV, 1980, HEREINAFTER REFERRED
TO AS THE "STATUTE"), AND THE RULES AND REGULATIONS ISSUED THEREUNDER
AND PUBLISHED AT 5 CFR 2411 ET SEQ.
PURSUANT TO A CHARGE FILED ON MARCH 29, 1982 AND AMENDED ON MAY 12,
1982, THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY
(HEREINAFTER, THE "AUTHORITY"), INVESTIGATED, AND SUBSEQUENTLY FILED THE
COMPLAINT IN THIS CASE ON JULY 1, 1982. THE COMPLAINT ALLEGES THAT
RESPONDENT "DISCIPLINED OR OTHERWISE DISCRIMINATED AGAINST THREE)
EMPLOYEES BECAUSE THE EMPLOYEES HAVE FILED A COMPLAINT, AFFIDAVIT, OR
PETITION, OR HAVE GIVEN ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND THEREBY DID ENGAGE IN,
AND IS ENGAGING IN, UNFAIR LABOR PRACTICES IN VIOLATION OF SECTION
7116(A)(4)" /2/ AND ALSO THAT, BY THE SAME ACTS AND CONDUCT, "INTERFERED
WITH, RESTRAINED, AND COERCED, AND IS INTERFERING WITH, RESTRAINING, AND
COERCING, EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED UNDER THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, AND THEREBY DID
ENGAGE IN, AND IS ENGAGING IN, UNFAIR LABOR PRACTICES IN VIOLATION OF 5
USC 7116(A)(1)" /2/ (GC 1(C)). /3/
A HEARING WAS HELD ON AUGUST 12, 1982, IN LOS ANGELES, CALIFORNIA.
THE PARTIES APPEARED, ADDUCED EVIDENCE, AND EXAMINED WITNESSES. BRIEFS
WERE FILED BY THE RESPONDENT, ON SEPTEMBER 20, BY THE GENERAL COUNSEL,
ON SEPTEMBER 22, AND BY THE CHARGING PARTY, ON SEPTEMBER 23. BASED UPON
THE RECORD MADE, MY OBSERVATION OF THE DEMEANOR OF THE WITNESSES, AND
THE BRIEFS, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND RECOMMENDED
ORDER.
FINDINGS OF FACT
1. IT IS ADMITTED THAT RESPONDENT IS AN AGENCY AND THE CHARGING PARTY
IS A LABOR ORGANIZATION, WITHIN THE MEANING OF SECTION 7103(A)(3) AND
(4) OF THE STATUTE. IT IS ALSO ADMITTED THAT THE CHARGING PARTY, AND ITS
SUBORDINATE BODY, THE COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION (HEREINAFTER, THE "UNION"), ARE PARTIES WITH
RESPONDENT TO A COLLECTIVE BARGAINING AGREEMENT WHICH COVERS EMPLOYEES
WORKING AT THE COMPTON, CALIFORNIA, BRANCH OFFICE OF THE SOCIAL SECURITY
ADMINISTRATION.
2. EMPLOYEES AT THE COMPTON OFFICE INTERVIEW CLAIMANTS FOR BENEFITS
AND HANDLE POST-ENTITLEMENT MATTERS. IT IS A BUSY OFFICE IN A POOR AREA,
WHERE THE EDUCATIONAL LEVEL OF CLAIMANTS IS LOW, AND CONSIDERABLE
ASSISTANCE MUST BE RENDERED TO CLAIMANTS. AS OF JUNE 6, 1977, MANAGEMENT
HAD "MORE OR LESS LOST CONTROL OF THE OFFICE" (TR 110). SINCE 1977, IT
HAS LOST 75 PERCENT OF ITS EMPLOYEES, THROUGH ATTRITION OR ADVERSE
ACTIONS. HOWEVER, ITS CASE-PROCESSING TIME HAS BEEN IMPROVING SINCE JUNE
OF 1977.
3. JACQUELIN MARTIN CAME TO THE COMPTON OFFICE IN JUNE 1977. WHILE
WORKING AT ANOTHER OFFICE SHE HAD SERVED AS AN ALTERNATE UNION
REPRESENTATIVE. AT COMPTON, SHE IS ONE OF THREE OPERATIONS SUPERVISORS,
AND SUPERVISES 17 OF THE 47 EMPLOYEES WORKING AT THE OFFICE. SHE IS
KNOWN AS A SUPERVISOR WHO INSISTS ON ADHERENCE TO POLICIES. IT IS NOT
UNCOMMON FOR HER TO PUT EMPLOYEES ON AWOL STATUS, OR TO WRITE UP "RECORD
DISCUSSIONS" ON EMPLOYEES AND PLACE THEM IN THEIR PERSONNEL FILES. THE
RECORD DISCUSSIONS REMAIN IN PERSONNEL FILES FOR 12 MONTHS; AND THEY
CAN BE THE BASIS FOR SUBSEQUENT DISCIPLINARY ACTIONS.
4. IN THE LAST YEAR OR SO, AT THE COMPTON OFFICE, THERE HAVE BEEN
NUMEROUS GRIEVANCES AND CHARGES OF UNFAIR LABOR PRACTICES FILED BY THE
UNION. THERE HAVE ALSO BEEN A NUMBER OF COMPLAINTS REGARDING "EEO"
(EQUAL EMPLOYMENT OPPORTUNITY). BECAUSE OF THESE MATTERS, INVESTIGATORS
HAVE OFTEN BEEN IN THE OFFICE, SOMETIMES THREE AT A TIME. MOST OF THE
CHARGES, COMPLAINTS, AND GRIEVANCES HAVE BEEN RESOLVED FAVORABLY TO
RESPONDENT.
5. THE ONLY UNFAIR LABOR PRACTICE CHARGE TO GO TO HEARING WAS IN CASE
NO. 8CA20003. SEE JT 1. IT WAS HEARD ON MARCH 16, 1982. IT WAS BASED ON
A CHARGE, FILED ON DECEMBER 21, 1981, THAT RESPONDENT UNILATERALLY
CHANGED WORKING CONDITIONS OF EMPLOYEES AT THE COMPTON OFFICE BY
DETAILING AN EMPLOYEE FROM COMPTON TO THE LOS ANGELES TELESERVICE CENTER
WITHOUT NOTIFYING THE UNION, OR PROVIDING IT WITH AN OPPORTUNITY TO
BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF THE SEPTEMBER 17, 1981,
CHANGE. CALLED AS WITNESSES FOR THE GENERAL COUNSEL OF THE AUTHORITY
WERE JEANETTE PERKINS, BARBARA BEATTY, AND JO-AN MORRIS. THEY ARE ALL
EMPLOYED BY RESPONDENT AT ITS COMPTON OFFICE. MS. BEATTY WAS THE
SERVICE REPRESENTATIVE WHO WAS TRANSFERRED FROM COMPTON TO THE
TELESERVICE CENTER; MS. MORRIS WAS THE SERVICE REPRESENTATIVE LEFT
BEHIND TO HANDLE AN INCREASED WORKLOAD. MS. PERKINS HAS BEEN THE COMPTON
OFFICE UNION REPRESENTATIVE SINCE DECEMBER 1980, AND IS THE PERSON WITH
WHOM THE COMPTON OFFICE MANAGER, LORENE DEBOSE, WOULD HAVE NEGOTIATED
CONCERNING THE DETAIL TO THE TELESERVICE CENTER, MS. PERKINS' TESTIMONY
AT THE MARCH 16, 1982, HEARING DIFFERED WITH THAT OF MS DEBOSE. MS.
DEBOSE WAS PRESENT THROUGHOUT THE MARCH 16 HEARING. AS BRANCH MANAGER,
MS. DEBOSE SUPERVISES MR. MARTIN. MS. MARTIN IN TURN SUPERVISES MS.
PERKINS, MS. BEATTY, AND MS. MORRIS. MS. MARTIN, AT MS. DEBOSE'S
DIRECTION, WOULD HAVE ARRANGED FOR THE THREE EMPLOYEES AT ATTEND THE
MARCH 16 HEARING.
6. MS. MARTIN KNEW THAT THE CHARGE IN CASE NO. 8-CA020003 HAD BEEN
FILED, AND THAT MS. PERKINS, MS. BEATTY, AND MS. MORRIS TESTIFIED AT THE
MARCH 16 HEARING. MS. MARTIN HERSELF DID NOT TESTIFY AT THE HEARING AND
WAS AWAY FROM THE OFFICE, ON A TRAINING DETAIL, ON MARCH 16. SHE
TESTIFIED THAT SHE NEVER DISCUSSED WITH ANYONE ELSE IN MANAGEMENT WHAT
HAPPENED AT THE HEARING ON MARCH 16. MS. MARTIN APPEARED TO BE AN
EFFICIENT PERSON, CONCERNED WITH ANYTHING THAT EVEN TANGENTIALLY TOUCHED
ON HER OPERATIONS. SHE WAS IN AND OUT OF THE OFFICE OF MS. DEBOSE, ON
MARCH 17. EVEN THOUGH UNDISPUTED, I AM UNABLE TO CREDIT HER SELF-SERVING
STATEMENT THAT SHE NEVER DISCUSSED, WITH ANYONE, WHAT HAPPENED AT THE
MARCH 16 HEARING. I FIND THAT SHE MUST HAVE KNOWN WHAT THE HEARING WAS
ALL ABOUT, AND ON MARCH 17 WAS UNDOUBTEDLY ADVISED BY MS. DEBOSE OF WHAT
WENT ON AT THE HEARING.
7. ON MARCH 17, 1982, MS. MARTIN RETURNED TO HER OFFICE, AFTER HER
DAY'S TRAINING SESSION ELSEWHERE, TO FIND A BASKET "FULL OF THINGS TO
DO" (TR 117). DURING THE COURSE OF THE DAY, FOR VARIOUS ALLEGED REASONS,
SHE TOOK TIME TO ADMONISH EACH OF THE THREE EMPLOYEES WHO TESTIFIED AT
THE MARCH 16 HEARING, TO PLACE RECORDS OF DISCUSSION IN THEIR PERSONNEL
FILES, AND TO PLACE MS. PERKINS AND HER CLERICAL AIDE, CAROL SMITH, ON
AWOL STATUS FOR 15 MINUTES. MS. MARTIN DENIES THAT SHE TOOK THESE
ACTIONS IN REPRISAL FOR THEIR GIVING TESTIMONY.
JEANETTE PERKINS
8. THE RECORD DISCUSSION AND AWOL STATUS GIVEN TO MS. PERKINS
CONCERNED HER DEPARTURE FOR LUNCH, ON MARCH 17, ABOUT 15 MINUTES BEFORE
HER SCHEDULED LUNCH BREAK, WITHOUT PRIOR APPROVAL BY MS. MARTIN. MS.
PERKINS LEFT EARLY, ACCOMPANIED BY HER CLERICAL AIDE, TO PICK UP CHICKEN
FOR AN OFFICE LUNCHEON. THE LUNCHEON WAS APPARENTLY AN EVENT PLANNED BY
THE SUNSHINE CLUB, WHICH IS A RECOGNIZED ENTITY AT THE COMPTON OFFICE
AND WHOSE PURPOSE IS TO RAISE EMPLOYEE MORALE. MS. PERKINS AND MS.
SMITH PUNCHED THE TIME CLOCK AT 11:42 A.M. THEY CLOCKED BACK IN FROM
THEIR LUNCH BREAK AT 12:15 P.M. THEIR SCHEDULED LUNCH BREAK WAS FROM
NOON TO 12:30 P.M.
9. WHEN MS. PERKINS AND MS. SMITH RETURNED TO THEIR UNIT, FOLLOWING
LUNCH, MS. MARTIN ADVISED BOTH THAT THEY WERE BEING PLACED ON 15 MINUTES
OF AWOL, FOR LEAVING EARLY, AND THAT THEY SHOULD TAKE 15 MORE MINUTES TO
COMPLETE THEIR SCHEDULED LUNCH BREAK. IN NO OTHER INSTANCE HAVE
EMPLOYEES BEEN PLACED ON AWOL FOR GOING TO LUNCH EARLY.
10. ACCORDING TO SECTIONS VIII AND IX OF A FLEX-TIME AGREEMENT
BETWEEN THE UNION AND RESPONDENT'S COMPTON OFFICE, PRIOR APPROVAL MUST
BE OBTAINED TO EXTEND THE NORMAL LUNCH BREAK OF ONE-HALF HOUR UP TO ONE
HOUR, AND TO CHANGE MORNING AND AFTERNOON BREAKS. SEE GC 6, PAR. D I AND
2. IN PARAGRAPH D 3, DEALING WITH ASSIGNMENTS TO AN EARLY (NOON TO 12:30
P.M.) OR LATE (12:45 P.M. TO 1:15 P.M.) LUNCH, THERE IS NOTHING ABOUT
VARYING THE LUNCH BREAK, BY SHORT PERIODS, WITHOUT PRIOR MANAGEMENT
APPROVAL. MS. MARTIN TESTIFIED THAT SUCH A REQUIREMENT "COULD MORE OR
LESS BE ASSUMED," BECAUSE IT IS EXPRESSLY REQUIRED IN THE TWO
IMMEDIATELY PRECEDING PARAGRAPHS (TR 146). THIS FLEX-TIME AGREEMENT IS
APPARENTLY THE ONLY WRITTEN POLICY ON THESE MATTERS.
11. MS. PERKINS TESTIFIED THAT EMPLOYEES REGULARLY VARY THEIR LUNCH
PERIODS, WITHOUT SEEKING PRIOR APPROVAL, IF THE VARIATION IS NOT FOR AN
EXTENDED PERIOD, SUCH AS A HALF HOUR OR LONGER. MS. PERKINS CONDUCTS
INTERVIEWS OF CLAIMANTS AND DOES NOT CUT SHORT AN INTERVIEW BECAUSE HER
SCHEDULED LUNCH HOUR HAS ARRIVED. ON OCCASION, SHE ALSO LEAVES EARLIER
THAN HER SCHEDULED LUNCHTIME. SHE CLAIMS THAT LEAVING 15 MINUTES EARLY
FOR LUNCH, WITHOUT PRIOR APPROVAL, IS "DONE ALL THE TIME" (TR 34, 24).
12. TWO OTHER EMPLOYEES WHO CONDUCT CLAIMANT INTERVIEWS BASICALLY
SUPPORTED THE TESTIMONY OF MS. PERKINS THAT SHORT VARIATIONS IN
SCHEDULED LUNCH BREAKS ARE TAKEN WITHOUT SEEKING SUPERVISORY APPROVAL.
ONE, ETHEL MOORE, HAS BEEN EMPLOYED AT THE COMPTON OFFICE FOR 8 YEARS.
SHE IS NOT SUPERVISED BY MR. MARTIN. SHE LEFT 10 MINUTES EARLY FOR
LUNCH, ON MARCH 17TH, WITHOUT PRIOR APPROVAL, AND WAS NOT PLACED ON AWOL
STATUS. WHETHER HER SUPERVISOR KNEW OF HER EARLY DEPARTURE WAS NOT
ESTABLISHED. HOWEVER, SHE DID PUNCH THE TIME CLOCK WHEN SHE LEFT. MS.
MOORE HAS BEEN AN ALTERNATE UNION REPRESENTATIVE FOR ABOUT A YEAR, AND
HAS NEVER FELT DISCRIMINATED AGAINST BECAUSE OF HER UNION ACTIVITY.
13. DANNY THOMAS IS THE OTHER EMPLOYEE WHO BASICALLY SUPPORTED THE
TESTIMONY OF MS. PERKINS. HE HAS BEEN GIVEN THREE AWOL'S BY MS.
MARTIN-- ONE FOR DELAYING HIS LUNCH UNTIL 3:00 P.M.; ONE FOR LEAVING THE
OFFICE WHEN HE WAS SICK; AND ANOTHER UNEXPLAINED INCIDENT WHICH HE
GRIEVED AND WON. HE LOST THE GRIEVANCES ON THE OTHER TWO, ONE BEING A
PARTIAL LOSS. HE HAS BEEN AN EMPLOYEE AT THE COMPTON OFFICE FOR AT LEAST
2 1/2 YEARS. HE IS NOT A UNION OFFICIAL.
14. MS. MARTIN TESTIFIED THAT "AS THE OFFICE POLICY AND AS COMMON
COURTESY," INTERVIEWERS ADVICE THEIR SUPERVISOR WHEN THEY VARY THEIR
SCHEDULED LUNCHTIMES (TR 122, 124). SHE DOES NOT ALWAYS KNOW THE
MOVEMENTS OF THE 17 EMPLOYEES SUPERVISED BY HER, AT ANY ONE TIME. BUT
SHE TESTIFIED THAT SHE KNEW THAT MS. PERKINS AND MS. SMITH LEFT EARLY ON
MARCH 17, 1982, BECAUSE A TELEPHONE CALL FOR MS. PERKINS FROM A STATE
AGENCY WAS REFERRED TO HER, AND SHE WENT LOOKING FOR THEM, ONLY TO FIND
THAT THEY HAD CLOCKED OUT AT 11:42 A.M. /4/ MS. MARTIN CLAIMS THAT SHE
TOOK THE CALL WHILE IN THE OFFICE OF MS. DEBOSE.
15. MS. SMITH, MS. PERKINS, AND MR. THOMAS ARE THE ONLY EMPLOYEES IN
THE DISABILITY UNIT SUPERVISED BY MR. MARTIN. MR. THOMAS TESTIFIED THAT
A CALL FROM A STATE AGENCY WOULD NORMALLY BE REFERRED TO HIM, IN THE
ABSENCE OF MS. PERKINS; THAT IF HE WERE NOT AVAILABLE, IT WOULD BE
REFERRED TO ONE OF THE OTHER GIVE CLAIMS REPRESENTATIVES IN HIS OVERALL
UNIT; AND THAT ONLY AS A "VERY LAST RESORT," WOULD MR. MARTIN GET THE
CALL (TR 173). ON MARCH 17, 1982, HE RECALLED BEING AT HIS DESK WHEN MS.
PERKINS LEFT EARLY TO GET THE CHICKEN, AND THAT SHE TOLD HIM WHERE SHE
WAS GOING. HE RECALLED REMAINING AT HIS DESK UNTIL HIS LUNCH BREAK. HIS
POLICY IS TO TAKE CALLS FROM STATE AGENCIES, EVEN IF HE IS INTERVIEWING
A CLAIMANT, BECAUSE IT IS SO DIFFICULT TO CALL THEM BACK.
16. MS. MARTIN DISCUSSED WITH MS. PERKINS THE MATTER OF LEAVING EARLY
FOR LUNCH. IT WAS THE "WHOLE CONTENTION" OF MR. PERKINS, ACCORDING TO
HER TESTIMONY, THAT LEAVING 15 MINUTES FOR LUNCH WAS "DONE ALL THE TIME"
(TR 34). MS. MARTIN TESTIFIED THAT IT WAS THE "CONTENTION" OF MS.
PERKINS THAT "EVERY EMPLOYEE IN (THE OFFICE) GOES TO LUNCH WHEN THEY
WANT TO GO AND NOTHING IS SAID" (TR 150). MS. MARTIN DID NOT FIND THIS
TO BE "AN ACCEPTABLE, REASONABLE EXPLANATION" (TR 149), OR MS. PERKINS'
ACTIONS TO BE "SUFFICIENTLY MITIGATING TO EXCUSE (HER) FAILURE TO ADHERE
TO THE ESTABLISHED OFFICE POLICY) (GC 2). MS. MARTIN ACKNOWLEDGED THAT
AN EMPLOYEE WITH A "LEGITIMATE EXCUSE" WOULD NOT BE PLACED ON AWOL.
17. AS A WITNESS, MS. MARTIN APPEARED TO BE LACKING IN COMPLETE
CANDOR AND HONESTY. TO THE EXTENT THAT HER TESTIMONY IS IN CONFLICT WITH
THAT OF MR. PERKINS, /5/ MS. SMITH, AND MR. THOMAS, I CREDIT THAT OF THE
LAST THREE-NAMED EMPLOYEES, AND, SPECIFICALLY, THAT SET FORTH IN
FINDINGS 11, 12, 13, 15, AND 16, ABOVE. THEIR TESTIMONY SEEMED TO BE
GIVEN IN A SINCERE, HONEST MANNER AND WAS BASICALLY CONSISTENT, AS WELL
AS CONSONANT WITH COMMON SENSE. IT WOULD SEEM THAT INTERVIEWERS WOULD
FREQUENTLY NOT COMPLETE THEIR INTERVIEWS IN TIME TO ADHERE TO A RIGID
LUNCH SCHEDULE. AS LONG AS THE DURATION OF THE LUNCH BREAK IS HONORED,
SHORT VARIATIONS IN THE TIMING OF IT SHOULD MAKE LITTLE DIFFERENCE.
INDEED, IT WOULD SEEM NEEDLESSLY NONPRODUCTIVE FOR EMPLOYEES TO TAKE
TIME TO SEEK OUT SUPERVISORS FOR PERMISSION TO MAKE A SHORT VARIATION.
THESE SHORT VARIATIONS WERE TAKEN REGULARLY BY EMPLOYEES AND, IN SUCH A
SMALL OFFICE, THE PRACTICE WAS MOST LIKELY KNOWN TO MANAGEMENT, AND
TACITLY ACCEPTED BY IT.
JO-AN MORRIS
18. JO-AN MORRIS IS A SERVICE REPRESENTATIVE. THE RECORD DISCUSSION
PLACED IN HER FILE BY MS. MARTIN AROSE FROM A MARCH 17, 1982, DISCUSSION
ON THREE TOPICS.
A. "MAIL RETURNABLE AS UNDELIVERED" WAS ONE TOPIC (GC 4, PAR. 1).
THE PROBLEM WAS TWOFOLD. MS. MORRIS USED A FRANKED ENVELOPE, FOR
INTEROFFICE MATERIAL, WHEN A PLAIN ENVELOPE WOULD HAVE SUFFICED AND BEEN
LESS EXPENSIVE. AND MS. MORRIS ADDRESSED IT INCORRECTLY FOR DELIVERY BY
THE POST OFFICE. MS. MORRIS APOLOGIZED FOR THE CONFUSION. AND SHE
EXPLAINED THAT SHE NEEDED AN ENVELOPE BECAUSE THE MATERIAL WAS TOO BULKY
TO CLIP TOGETHER WITH A GREEN ROUTE SLIP (THE USUAL METHOD FOR SENDING
INTEROFFICE MAIL), AND THAT SHE HAD TOLD THE REGULAR MAIL CLERK WHY SHE
WAS DOING IT THAT WAY. THE REGULAR MAIL CLERK WAS NOT ON DUTY WHEN THE
ENVELOPE WAS SENT OUT. IT WAS SENT OUT FOR DELIVERY BY THE POST OFFICE.
MS. MARTIN ESTIMATED THAT ON "ON AT LEAST TWO" OTHER OCCASIONS SHE HAD
DISCUSSED SIMILAR MAIL PROBLEMS WITH MS. MORRIS (TR 135). MS. MORRIS
COULD NOT RECALL SUCH PRIOR PROBLEMS, BUT SEEMED UNCERTAIN. I CREDIT MS.
MARTIN THAT THERE WERE SIMILAR OCCASIONS WHEN MS. MORRIS HAD INCORRECTLY
HANDLED MAIL. JUST WHEN AND HOW THIS PARTICULAR RETURNED ENVELOPE GOT
INTO THE BASKET OF MS. MARTIN IS UNCLEAR, IN MS. MARTIN'S MIND. SHE
THINKS THAT IT MAY HAVE BEEN GIVEN TO HER BY MS. DEBOSE, THE OFFICE
MANAGER. IN ANY EVENT, IT WAS THERE ON MARCH 17. THE MAIN CONCERN OF MS.
MARTIN, IN THIS MATTER, WAS THE DELAY CAUSED IN ASSISTING CLAIMANTS.
B. "JULIUS MARTIN" WAS THE SECOND TOPIC (GC 4, PAR. 2). THIS MATTER
CONCERNED A SERVICE COMPLAINT WHICH WAS RECEIVED ON FEBRUARY 4, 1982,
AND CONCERNED THE NONRECEIPT OF A SSA CHECK. SHORTLY AFTER FEBRUARY 4,
MS. MARTIN SPOKE TO MS. MORRIS ABOUT THE COMPLAINT, ASKED MS. MORRIS TO
RESOLVE IT, AND THEN TO GET BACK TO HER ABOUT IT. ON MARCH 17, MS.
MARTIN REMINDED MS. MORRIS ABOUT THE MATTER. THE NONPAYMENT WENT BACK TO
SEPTEMBER 1981. IN JANUARY OR FEBRUARY 1982, THE "M" FILED HAD BEEN
ASSIGNED TO ANOTHER SERVICE REPRESENTATIVE, SO MS. MORRIS WAS NOT SURE
WHETHER SHE HAD RECEIVED NECESSARY FORMS SENT TO HER BY THE COMPLAINANT.
ON FEBRUARY 11, MS. MORRIS INITIATED AN INQUIRY INTO THE MATTER, AND ON
MARCH 5 HAD ACTED FURTHER ON THE MATTER. MS. MARTIN WAS "HAPPY" WITH THE
ACTION BEING TAKEN (TR 158).
C. "JOHNNY WASHINGTON" WAS THE THIRD TOPIC (GC 4, PAR. 3). THIS
MATTER ALSO CONCERNED A SERVICE COMPLAINT ABOUT NONPAYMENT. IT WAS
RECEIVED BY MS. MARTIN ON TUESDAY, MARCH 9, 1982. SHE FIRST TOOK IT UP
WITH MS. MORRIS ON MARCH 17. MR. WASHINGTON HAD BEEN TRYING TO GET HIS
CASE RESOLVED SINCE MARCH 1981. MS. MORRIS FIRST RECEIVED THE CASE
AROUND APRIL 1981. MS. MORRIS EXPLAINED TO MS. MARTIN THAT SHE NEVER
RECEIVED A JULY 7, 1981 INQUIRY ABOUT THE CASE; THAT SHE HAD SO
EXPLAINED TO MR. WASHINGTON, AND HIS ATTORNEY, WHEN THEY CALLED HER IN
FEBRUARY 1982; AND THAT SHE HAD THEN RECEIVED A SECOND LETTER DATED
FEBRUARY 22, 1982. THE SECOND LETTER DID NOT CONTAIN SOME ATTACHMENTS,
WHICH CONSISTED OF DOCUMENTATION NECESSARY TO PROCESS THE CLAIM. MS.
MORRIS TESTIFIED THAT SHE "WAS LOOKING FOR A FILE IN THE 250, AND WHAT
NOT" (TR 91) WHEN, ON MARCH 17, MS. MARTIN DISCUSSED THE MATTER WITH
HER. THE RECORD DISCUSSION, WHICH WAS PUT IN THE FILE OF MS. MORRIS ON
MARCH 18, STATES THAT MS. MORRIS WAS TO UNDERTAKE CERTAIN ACTION BY
CLOSE BY BUSINESS ON MARCH 18.
19. MS. MARTIN TESTIFIED THAT SHE HAD INTENDED TO TALK TO MS. MORRIS
ABOUT ALL THREE OF THESE TOPICS BEFORE MARCH 17 AND DID DO, ON MARCH 17,
"BECAUSE (SHE) JUST HAPPENED TO GET TO IT IN MY INCOMING MAIL ON THE
17TH" (TR 137). THAT SHE JUST HAPPENED" TO GET TO IT ON MARCH 17 IS ONE
PART OF HER TESTIMONY AS TO WHICH I DOUBT HER CANDOR AND HONESTY. SEE
FINDING 17, ABOVE.
20. I DO FIND THAT, EVENTUALLY, RECORD DISCUSSIONS ON ALL THREE
MATTERS WOULD HAVE BEEN PLACED IN THE FILE OF MS. MORRIS. MS. MORRIS WAS
HAVING EITHER PERFORMANCE OR CONDUCT-RELATED PROBLEMS IN MARCH 1982;
AND "MOST" DISCUSSIONS WITH HER WERE BEING DOCUMENTED (TR 130). IN ALL,
SOME 50 OR SO RECORD DISCUSSIONS WERE IN HER FILE. FOR EXAMPLE, ON
FEBRUARY 4, 1982, A RECORD DISCUSSION WAS PLACED IN HER FILE THAT
CONCERNED RESPONSIBILITIES FOR PHONE COVERAGE. ON FEBRUARY 8, 1982,
ANOTHER WAS PLACED IN HER FILE THAT CONCERNED THREE SERVICE COMPLAINTS.
FOR THE PERIOD ENDING SEPTEMBER 1981, SHE HAD RECEIVED A POOR
PERFORMANCE APPRAISAL, WHICH WAS UPHELD BY AN ARBITRATOR. AT THE TIME OF
THE HEARING, A PROPOSAL FOR HER REMOVAL WAS PENDING.
BARBARA BEATTY
21. THE RECORD DISCUSSION ON BARBARA BEATTY, A SERVICE
REPRESENTATIVE, CONCERNED HER FAILURE TO PROCESS SOME CHECKS WITHIN 48
HOURS.
WHEN SOCIAL SECURITY RECIPIENTS ARE OVERPAID FOR BENEFITS DUE, THEY
ARE REQUIRED TO REPAY THE OVERPAYMENTS BY WAY OF A PERSONAL CHECK OR
MONEY ORDER. THE SERVICE REPRESENTATIVE LOGS THE CHECKS IN AT THE BRANCH
OFFICE AND SENDS IT ON TO THE PAYMENT CENTER. THE CHECKS ARE SUPPOSED TO
BE PROCESSED WITHIN 48 HOURS; A POLICY OF WHICH MS. BEATTY WAS WELL
AWARE. THE TIME RESTRICTIONS WERE ESTABLISHED TO AVOID FRAUD AND TO
BETTER SERVE THE PUBLIC.
22. ACCORDING TO THE TESTIMONY OF MS. MARTIN, SOMETIME ON MARCH 17,
MS. DEBOSE "BUZZED" HER, AND TOLD HER TO CHECK ON WHETHER CHECKS IN HER
UNITS WERE BEING PROCESSED IN A TIMELY FASHION (TR 117). ACCORDING TO
MS. MARTIN, MS. BEBOSE HAD RECEIVED A CALL ABOUT THE MATTER FROM THE
OFFICE OF THE AREA DIRECTOR. ON WHAT DATE THIS CALL WAS RECEIVED WAS NOT
ESTABLISHED. MS. MARTIN CHECKED ALL THE DESKS OF THE SERVICE
REPRESENTATIVES AND FOUND UNPROCESSED CHECKS ONLY ON THE DESK OF BARBARA
BEATTY. ONE CHECK HAD BEEN RECEIVED ON A WEDNESDAY, MARCH 10, AND ONE ON
THURSDAY, MARCH 11.
23. AT THE TIME THE CHECKS WERE RECEIVED AND DISCOVERED BY MS.
MARTIN, MS. BEATTY WAS VOLUNTARILY HANDLING TWO JOBS. ALTHOUGH SHE WAS
RECEIVING OVERTIME, AS NEEDED, TO HANDLE THEM, SHE STILL HAD TROUBLE
KEEPING UP WITH HER DUTIES. ON SATURDAY, MARCH 13, 1982, SHE WORKED
OVERTIME. ON MONDAY, MARCH 15, SHE SPENT SOME TIME BEING INTERVIEWED IN
CONNECTION WITH HER TESTIMONY. ON MARCH 16 SHE WORKED HALF A DAY, AND
BEATTY'S EXCUSE TO MS. MARTIN WAS THAT SHE LACKED TIME TO PROCESS THE
CHECKS WITHIN 48 HOURS AND HAD OVERLOOKED THEM WHEN SHE PROCESSED OTHER
CHECKS ON MONDAY, MARCH 15.
24. ON AUGUST 28, 1981, MS. BEATTY WAS INSTRUCTED ON THE THEN UNKNOWN
TO HER OFFICE POLICY REGARDING THE TIME FRAME FOR PROCESSING CHECKS. ON
THIS OCCASION, 12 UNPROCESSED CHECKS HAD NOT BEEN PROCESSED BY MS.
BEATTY WITHIN THE OFFICE DEADLINE. MS. MARTIN TESTIFIED THAT, BECAUSE OF
THIS PAST INFRACTION, MS. BEATTY COULD HAVE BEEN DISCIPLINED OVER THE
UNPROCESSED CHECKS OF MARCH 10 AND 11, 1982. THERE IS NO RECORD EVIDENCE
OF OFFICE POLICY ON JUST WHEN A SUPERVISOR IS TO PLACE RECORD
DISCUSSIONS IN FILES OF EMPLOYEES, OR DISCIPLINE THEM. EXCEPT FOR ONE
AWOL INCIDENT, WHICH WAS WRITTEN UP AS A RECORD DISCUSSION, MS. BEATTY
WAS NOT SHOWN TO BE A PROBLEM EMPLOYEE DURING HER 6 YEARS AT THE COMPTON
OFFICE.
DISCUSSION AND CONCLUSIONS
RESPONDENT AND THE GENERAL COUNSEL SEEMINGLY AGREE THAT THE
AUTHORITY'S DECISION IN INTERNAL REVENUE SERVICE, WASHINGTON, D.C., 6
FLRA NO. 23 (1981, HEREINAFTER "IRS") CONTROLS THIS CASE. THE IRS CASE
DEALT WITH ALLEGED VIOLATIONS OF SECTION 7116(A)(1) AND (2). /6/ FOR
THOSE SECTIONS AT LEAST, THE AUTHORITY ESTABLISHED THE APPLICABLE TEST
TO BE USED "IN SITUATIONS WHERE CONSIDERATIONS OF AN EMPLOYEE'S
PARTICIPATION IN ACTIVITIES PROTECTED BY THE STATUTE PLAYED A PART IN A
MANAGEMENT DECISION ADVERSELY AFFECTING THAT EMPLOYEE." 6 FLRA AT 97.
IN SUCH CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT:
(THE BURDEN IS ON THE GENERAL COUNSEL TO MAKE A PRIMA FACIE SHOWING
THAT THE EMPLOYEE HAD
ENGAGED IN PROTECTED ACTIVITY AND THAT THIS CONDUCT WAS A MOTIVATING
FACTOR IN AGENCY
MANAGEMENT'S DECISION (NOT TO PROMOTE). ONCE THIS IS ESTABLISHED, THE
AGENCY MUST SHOW BY A
PREPONDERANCE OF THE EVIDENCE THAT IT WOULD HAVE REACHED THE SAME
CONCLUSION (AS TO PROMOTION)
EVEN IN THE ABSENCE OF PROTECTED CONDUCT.
6 FLRA AT 99.
1. IN THIS CASE, THE GENERAL COUNSEL MET ITS BURDEN OF MAKING A PRIMA
FACIE SHOWING. IT IS UNDISPUTED THAT THE THREE EMPLOYEES INVOLVED DID
ENGAGE IN "PROTECTED ACTIVITY," WHEN THEY TESTIFIED AS WITNESSES AT THE
HEARING ON MARCH 16, 1982, ON THE UNFAIR LABOR PRACTICE COMPLAINT
AGAINST THEIR AGENCY. THE PREPONDERANCE OF THE EVIDENCE ALSO INDICATES
THAT ACTIONS "ADVERSELY AFFECTING" ALL THREE EMPLOYEES WAS TAKEN BY
RESPONDENT IMMEDIATELY UPON THEIR RETURN TO THE OFFICE. MS. PERKINS WAS
PLACED ON AWOL STATUS, ALONG WITH HER CLERICAL AIDE, AND LOST PAY. AND
ALL THREE WERE SUBJECTED TO ADMONISHMENTS PERTAINING TO VARIOUS MATTERS,
BY THEIR IMMEDIATE SUPERVISOR, WHO THEN MADE A RECORD OF THE DISCUSSIONS
CAN BE THE BASIS FOR SUBSEQUENT DISCIPLINARY ACTION AND, THEREFORE,
ADVERSELY AFFECT EMPLOYEES, EVEN THOUGH THEY MAY NOT BE DISCIPLINARY,
PER SE.
A NUMBER OF FACTS COALESCE TO CONVINCE ME THAT THE PARTICIPATION OF
THE THREE EMPLOYEES, AS WITNESSES, AT A HEARING CONDUCTED BY THE
AUTHORITY, WAS A "MOTIVATING FACTOR" IN REPONDENT'S DECISION TO TAKE
ADVERSE ACTION AGAINST THEM.
A. PRIMARILY, THERE IS THE TIMING OF THE ADVERSE ACTIONS, ALL TAKEN
ON MARCH 17, THE DAY AFTER ALL THREE EMPLOYEES TESTIFIED, AND A DAY
WHICH WAS A BUSY ONE FOR THEIR SUPERVISOR SHE HAVING JUST BEEN AWAY FROM
THE OFFICE ON A DAY'S TRAINING PROGRAM. NEVERTHELESS, SHE FOUND TIME TO
SINGLE OUT AND ADMONISH EACH OF THE THREE EMPLOYEES, FOR VARIOUS
REASONS. THE ONLY EVIDENCE OF ANOTHER EMPLOYEE BEING SUBJECTED TO
ADVERSE ACTION, ON MARCH 17, WAS THE CLERICAL AIDE WHO ACCOMPANIED MS.
PERKINS ON THE EARLY LUNCH BREAK. SINCE BOTH SHE AND MS. PERKINS LEFT
TOGETHER, IT WOULD HAVE BEEN TOO OBVIOUS TO HAVE SINGLED OUT ONLY MS.
PERKINS FOR ADVERSE ACTION. MORE SIGNIFICANT THAN MS. SMITH RECEIVING AN
ADVERSE ACTION IS THE FAILURE OF RESPONDENT TO METE OUT ONE TO ANOTHER
EMPLOYEE WHO TOOK AN EARLY LUNCH, ON MARCH 17, AND LEFT A TIME-CLOCK
RECORD OF IT.
RESPONDENT ARGUES THAT EACH OF THE ADVERSE ACTIONS WAS TRIGGERED BY A
SPECIFIC EVENT, INDEPENDENT OF INVOLVEMENT IN THE HEARING. SEE RBR 1, 5,
AND 7-8. THIS ARGUMENT WOULD HAVE SOME VALIDITY, AS TO MS. BEATTY, IF,
INDEED, THE CALL TO LOOK FOR UNPROCESSED CHECKS WAS RECEIVED ON MARCH
17. HOWEVER, THERE IS ONLY THE UNSUBSTANTIATED TESTIMONY OF MS. MARTIN
TO THIS EFFECT; AND SHE WAS NOT AN ENTIRELY CONVINCING WITNESS. AS TO
MS. MORRIS AND THE SO-CALLED INDEPENDENT TRIGGERING EVENTS RELATING TO
HER, THE EVIDENCE ONLY SHOWS THAT MATTERS HAD BEEN WAITING IN THE
IN-BASKET OF MS. MARTIN FOR SEVERAL DAYS (THE SERVICE COMPLAINTS) OR AN
UNCLEAR PERIOD OF TIME (THE RETURNED ENVELOPE). AS TO MS. PERKINS, THERE
IS THE MYSTERY OF WHY THE TRIGGERING EVENT (THE PURPORTED TELEPHONE
CALL) WAS NOT REFERRED TO MR. THOMAS. IT WOULD HAVE BEEN NORMAL TO DO
SO; AND HE WAS AVAILABLE TO HANDLE IT. AGAIN, THERE IS ONLY THE WORD OF
MARTIN THAT THE TELEPHONE CALL CAUSED HER TO GO LOOKING FOR MS. PERKINS.
B. THE OFFICE MANAGER HAD BEEN SUBJECTED TO HER FIRST HEARING ON AN
UNFAIR LABOR PRACTICE, AT WHICH HER TESTIMONY WAS DISPUTED BY ONE OF HER
STAFF, MS. PERKINS. THE SUPERVISOR, WHO ADMINISTERED THE ADVERSE ACTIONS
AGAINST THREE EMPLOYEES WHO TESTIFIED, WAS IN AND OUT OF THE MANAGER'S
OFFICE THROUGHOUT THE DAY, AS SHE FOUND VARIOUS MATTERS TO COMPLAIN
ABOUT AS TO EACH OF THE THREE. THE SUSPICION IS STRONG THAT THE
SUPERVISOR WAS OBLIGINGLY FINDING FAULT WITH EACH OF THE THREE IN ORDER
TO PLEASE HER SUPERVISOR, THE OFFICE MANAGER.
C. AT LEAST ONE OF THE ADVERSE ACTIONS DEALT WITH A PICAYUNE MATTER,
NAMELY THE 15-MINUTE VARIATION IN THE SCHEDULED LUNCH BREAK TAKEN BY MS.
PERKINS WITHOUT PRIOR APPROVAL. IN TAKING AN EARLY BREAK, MS. PERKINS
WAS FOLLOWING AN ESTABLISHED OFFICE PRACTICE THAT MANAGEMENT MOST LIKELY
KNEW ABOUT, AND TACITLY ACCEPTED. AS TO THE INCIDENT AT ISSUE, THE SHORT
VARIATION WAS FOR A REASONABLE, OFFICE-RELATED PURPOSE-- TO PICK UP FOOD
FOR AN OFFICE LUNCHEON, APPARENTLY SPONSORED BY THE SUNSHINE CLUB, A
RECOGNIZED ENTITY AT THE COMPTON OFFICE WHOSE PURPOSE IS TO RAISE MORALE
OF OFFICE EMPLOYEES. MS. PERKINS STAYED WITHIN THREE MINUTES OF THE
ALLOTTED HALF-HOUR LUNCH BREAK. SHE LEFT THE UNIT ATTENDED BY MR.
THOMAS, A CLAIMS REPRESENTATIVE, QUALIFIED TO HANDLE ANY MATTER THAT
MIGHT ARISE.
2. RESPONDENT HAS NOT MET ITS BURDEN OF DEMONSTRATING, "BY A
PREPONDERANCE OF THE EVIDENCE" (IRS, 6 FLRA AT 99), THAT THE ADVERSE
ACTIONS AGAINST MS. PERKINS AND MS. BEATTY WOULD HAVE BEEN TAKEN, EVEN
IN THE ABSENCE OF THEIR PROTECTED ACTIVITY.
THE PURPORTED OFFENSE OF MS. PERKINS WAS TOO TRIVIAL, STANDING ALONE,
TO JUSTIFY AN ADVERSE ACTIONS, AS ALREADY DISCUSSED IN POINT 1C, ABOVE.
THE FACTS ARE PERSUASIVE THAT THE REASON FOR PLACING MS. PERKINS, AND
HER AIDE, ON AWOL STATUS, AND GIVING EACH A RECORD DISCUSSION ON THE
MATTER OF THE EARLY DEPARTURE FOR LUNCH, WAS PRETEXUAL IN NATURE.
NOR CAN I CONCLUDE THAT MS. BEATTY WOULD HAVE RECEIVED A RECORD
DISCUSSION, EVEN IN THE ABSENCE OF PROTECTED ACTIVITY. WHILE HER FAILURE
TO PROCESS CHECKS WITHIN 48 HOURS DID AMOUNT TO AN INFRACTION OF AN
OFFICE POLICY, WHICH SHE WELL KNEW, AND WHICH WAS NOT TRIVIAL, IT
OCCURRED UNDER MITIGATING CIRCUMSTANCES. SHE WAS HANDLING TWO JOBS FOR
RESPONDENT AND, ADDITIONALLY, HAD TO SPEND CONSIDERABLE TIME AT THE
INTERVIEW AND HEARING ON THE UNFAIR LABOR PRACTICE CHARGE, DURING THE
PERIOD WHEN THE CHECKS SHOULD HAVE BEEN PROCESSED. EVEN THOUGH SHE
WORKED OVERTIME, SHE COULD NOT KEEP UP WITH HER WORK UNDER THESE
CIRCUMSTANCES. ASIDE FROM ONE AWOL PENALTY, AND A PRIOR FAILURE TO
PROCESS CHECKS IN A TIMELY FASHION, AT WHICH TIME SHE DID NOT UNDERSTAND
THE POLICY, THERE IS NO EVIDENCE THAT MS. BEATTY HAD EVER BEEN A PROBLEM
EMPLOYEE DURING HER 6 YEARS IN THE COMPTON OFFICE. WHILE MS. MARTIN WAS
GENERALLY A STICKLER FOR ADHERENCE TO OFFICE POLICIES, AHS ALSO
ACKNOWLEDGED THAT FAILURES TO FOLLOW OFFICE POLICY ARE EXCUSED, IF THERE
ARE "SUFFICIENTLY MITIGATING" CIRCUMSTANCES. SEE FINDING 16, ABOVE. THE
PREPONDERANCE OF THE EVIDENCE IS NOT PERSUASIVE THAT MS. MARTIN WOULD
NOT HAVE VIEWED THE CIRCUMSTANCES ATTENDANT UPON MR. BEATTY'S INFRACTION
"SUFFICIENTLY MITIGATING," BUT FOR THE PROTECTED ACTIVITY.
3. RESPONDENT HAS SHOWN THAT, EVENTUALLY, IT WOULD HAVE TAKEN THE
SAME ADVERSE ACTION AGAINST MS. MORRIS, EVEN IN THE ABSENCE OF PROTECTED
ACTIVITY.
JO-AN MORRIS PRESENTS A MARKEDLY DIFFERENT SITUATION FROM THE OTHER
TWO EMPLOYEES WHO TESTIFIED AT THE MARCH 16 HEARING AND WHO WERE MADE
THE SUBJECT OF ADVERSE ACTIONS ON MARCH 17. AS DETAILED IN FINDING 20,
ABOVE, MS. MORRIS WAS HAVING PERFORMANCE AND CONDUCT-RELATED PROBLEMS AT
THE TIME; AND "MOST" DISCUSSIONS WITH HER WERE BEING DOCUMENTED (TR
130). THE ONE WHICH OCCURRED ON MARCH 17, HOWEVER, WAS NOT THE RESULT OF
ANY MATTERS WHICH REQUIRED HANDLING, ON MARCH 17. MS. MARTIN "JUST
HAPPENED TO GET TO IT" ON MARCH 17, ACCORDING TO HER TESTIMONY (TR 137).
AS ALREADY STATED, MARCH 17 WAS A BUSY DAY FOR MS. MARTIN; AND I HAVE
NOT CREDITED HER TESTIMONY THAT SHE "JUST HAPPENED" TO FIND TIME, ON
SUCH A DAY, TO ADMONISH MS. MORRIS ABOUT THESE THREE MATTERS. I AM
CONVINCED THAT THE TIMING OF THE ADMONISHMENTS DIRECTED TO EACH OF THE
THREE EMPLOYEES, INCLUDING MS. MORRIS, ON MARCH 17, WAS MOTIVATED BY THE
FACT THAT THEY HAD JUST TESTIFIED AGAINST THE INTERESTS OF MANAGEMENT AT
THE HEARING ON THE UNFAIR LABOR PRACTICE CHARGE.
BUT I ALSO AM CONVINCED THAT MS. MORRIS WOULD HAVE RECEIVED THE
RECORD DISCUSSION, EVENTUALLY. RESPONDENT WAS BUILDING A RECORD TO
JUSTIFY HER REMOVAL, AND WOULD UNDOUBTEDLY HAVE DOCUMENTED ANY
DISCUSSION ON A SERVICE COMPLAINT AND IMPROPER ADHERENCE TO AN OFFICE
PROCEDURE.
IF I HAD A FREE HAND IN FASHIONING A SOLUTION TO THE PROBLEM
PRESENTED BY THE MORRIS CASE, I WOULD RECOMMEND THAT RESPONDENT BE
ORDERED TO CEASE AND DESIST FROM INITIATING ANY FURTHER DISCRIMINATORY
OR COERCIVE ACTION AGAINST MS. MORRIS BECAUSE SHE HAS EXERCISED
PROTECTED RIGHTS. HOWEVER, I WOULD NOT ORDER, AS A REMEDY, THAT THE
PARTICULAR ADVERSE ACTION HERE INVOLVED BE RETRACTED BECAUSE,
EVENTUALLY, IT WOULD HAVE BEEN TAKEN, AND FOR VALID REASONS. SUCH A USE
OF THE AUTHORITY'S POWER TO DESIGN RELIEF APPROPRIATE TO THE FACTS OF A
CASE WOULD PRESERVE AN EFFICIENT AND ORDERLY GOVERNMENT WHILE, AT THE
SAME TIME, IT WOULD DENOUNCE DISCRIMINATORY ACTION TAKEN AGAINST
EMPLOYEES WHO DARE TO EXERCISE PROTECTED RIGHTS, AND WOULD PROTECT MS.
MORRIS, IF EVER AGAIN AGENTS OF RESPONDENT TRY TO TAKE IMPROPERLY
MOTIVATED ACTION AGAINST HER.
THE QUESTION PRESENTED IS-- DOES IRS ALLOW FOR SUCH A SOLUTION. I
BELIEVE THAT IT DOES, AT LEAST WHERE SECTION 7116(A)(4) RIGHTS ARE
INVOLVED. IN IRS, AND IN TWO CASES WHICH HAVE FOLLOWED IT (VETERANS
ADMINISTRATION, MEDICAL AND REGIONAL OFFICE CENTER, WHITE RIVER
JUNCTION, VERMONT, 6 FLRA NO. 68 (1981), HEREINAFTER "VA") AND OFFICE OF
PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION,
SAN FRANCISCO REGION, 9 FLRA NO. 11 (1982, HEREINAFTER "SSA")) THE
COMPLAINTS, OR COUNTS THEREOF, WERE DISMISSED OUTRIGHT, PERHAPS BECAUSE
THE AUTHORITY DID NOT CONSIDER THE SOLUTION PROPOSED HEREIN. IN ANY
EVENT, NONE OF THOSE CASES DEALT WITH SECTION 7116(A)(4), WHICH MERITS
SPECIAL CONSIDERATION.
SECTION 7116(A)(4) IS THE PROVISION DESIGNED TO PROTECT EMPLOYEES WHO
FILE COMPLAINTS OF AN UNFAIR LABOR PRACTICE AGAINST THEIR EMPLOYERS
AND/OR TESTIFY IN SUPPORT OF SUCH CHARGES AT A HEARING. IT GOES TO THE
HEART OF ENFORCING THE STATUTORY PROHIBITION AGAINST UNFAIR LABOR
PRACTICES. IF THE AUTHORITY DOES NOT GIVE SUCH EMPLOYEES PROTECTION, IT
WILL FIND ITSELF UNABLE, EFFECTIVELY, TO ENFORCE ONE OF THE IMPORTANT
FUNCTIONS ASSIGNED TO IT BY THE STATUTE. EMPLOYEES WHO FILE COMPLAINTS,
AND ARE CALLED AS WITNESSES, ARE, SOMETIMES, NOT MODEL EMPLOYEES. AS
HERE, THEIR SUPERVISORS MAY HAVE IN-BASKETS FILL OF TOPICS FOR ADVERSE
ACTIONS, UPON WHICH TO BUILD A CASE FOR A REMOVAL PROPOSAL-- WHICH IS
WHAT HAPPENED TO MS. MORRIS. IF EMPLOYEES ARE FEARFUL THAT THEIR GIVING
TESTIMONY IN SUPPORT OF AN UNFAIR LABOR PRACTICE CHARGE, AS MS. MORRIS
DID, MIGHT TRIGGER AN ADVERSE ACTION AGAINST THEM, THEY CAN BE EXPECTED
TO BE UNWILLING, OR RELUCTANT TO GIVE TESTIMONY IN ANY WAY OFFENSIVE TO
MANAGEMENT. A CEASE-AND-DESIST ORDER AGAINST FUTURE DISCRIMINATORY
CONDUCT WOULD HELP TO ALLAY SUCH FEARS.
THE SOLE CASE CITED IN THE IRS DECISION IS MT. HEALTHY CITY SCHOOL
DISTRICT BOARD OF EDUCATION V. DOYLE, 429 U.S. 274 (1977), A CASE
INVOLVING CONDUCT PROTECTED BY THE U.S. CONSTITUTION AND PARTICULARLY,
ITS FREE SPEECH PROVISIONS, AND IN WHICH THE RELIEF SOUGHT WAS NOT A
CEASE AND DESIST ORDER, BUT ONLY REINSTATEMENT OF A DISCHARGED TEACHER
AND DAMAGES. THEREFORE, THE SUPREME COURT DID NOT CONSIDER WHETHER IT
WOULD HAVE BEEN APPROPRIATE TO ISSUE A CEASE AND DESIST ORDER AGAINST
ANY FURTHER DISCRIMINATORY CONDUCT.
OTHER COURTS, PROTECTING THE INTEGRITY OF ENFORCEMENT UNDER THE FAIR
LABOR STANDARDS ACT ("FLSA"), HAVE NOT DISMISSED COMPLAINTS UNDER
CIRCUMSTANCES SIMILAR TO THOSE IN THE INSTANT CASE. FLSA ALSO HAS A
PROHIBITION AGAINST EMPLOYERS TAKING DISCRIMINATORY ACTION AGAINST
EMPLOYEES BECAUSE THEY FILE COMPLAINTS, OR TESTIFY AT HEARINGS
CONCERNING STATUTORY VIOLATIONS. SEE 29 U.S.C. 15(A)(3). ONE DISCHARGED
EMPLOYEE HAD STOLEN PROPERTY, FORGED PRODUCTION SLIPS AND TINKERED WITH
TIME CLOCKS. SEE GOLDBERG V. BAMA MANUFACTURING CORPORATION, 302 F.2D
152 (C.A. 5, 1962). ANOTHER WAS DUE FOR DISCHARGE WITHIN 3 OR 4 DAYS
BECAUSE OF SERIOUS JOB DEFICIENCIES. SEE MITCHELL V. GOODYEAR TIRE AND
RUBBER COMPANY, 278 F.2D 562 (C.A. 8, 1960). BOTH COURTS OF APPEALS
FOUND THAT THE DISCHARGES WERE TRIGGERED BY PROTECTED ACTIVITY, BUT ALSO
THAT JUSTIFIABLE REASONS EXISTED FOR THE ADVERSE ACTIONS TAKEN. NEITHER
COURT INDICATED THAT DISMISSAL OF THE COMPLAINTS WAS APPROPRIATE. THE
COURT OF APPEALS HELD, INTER ALIA, IN GOLDBERG, THAT REINSTATEMENT OF
SUCH AN UNSATISFACTORY EMPLOYEE WAS NOT APPROPRIATE, ALTHOUGH
RESTITUTION OF LOST PAY WAS. BOTH COURTS OF APPEALS STRESSED THE
IMPORTANCE TO STATUTORY ENFORCEMENT OF ASSURING PROTECTION TO EVEN
UNSATISFACTORY EMPLOYEES WHO ASSERT STATUTORY RIGHTS.
AN ORDER TO CEASE AND DESIST FROM INITIATING FURTHER ADVERSE ACTIONS
MOTIVATED BY DISCRIMINATORY REASONS OFFERS AT LEAST A MODICUM OF
PROTECTION, UNDER THE CIRCUMSTANCES HERE. OUTRIGHT DISMISSAL OF THE
COMPLAINT WOULD GIVE NO ASSURANCE AT ALL TO EMPLOYEES WHO DO NOT HAPPEN
TO BE MODEL ONES.
ACCORDINGLY, I CONCLUDE THAT RESPONDENT SHOULD BE ORDERED TO CEASE
AND DESIST FROM TAKING FURTHER DISCRIMINATORY ACTION AGAINST ALL THREE
EMPLOYEES WHO TESTIFIED AT THE HEARING, INCLUDING MS. MORRIS, BUT THAT
FURTHER RELIEF AS TO THE ACTIONS TAKEN BE LIMITED TO MS. PERKINS, HER
AIDE, AND MS. BEATTY.
ULTIMATE FINDINGS AND RECOMMENDED ORDER
RESPONDENT HAS VIOLATED SECTION 7116(A)(1) AND (4) OF THE STATUTE.
ACCORDINGLY, 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 COMPTON, CALIFORNIA OFFICE
OF THE SOCIAL SECURITY ADMINISTRATION SHALL:
CEASE AND DESIST FROM:
(A) INITIATING REVIEWS OF EMPLOYEE WORK PERFORMANCE BECAUSE THE
EMPLOYEES HAS GIVEN
TESTIMONY IN A FEDERAL LABOR RELATIONS AUTHORITY PROCEEDING.
(B) ENFORCING LUNCH SCHEDULES IN A DISPARATE MANNER AND DOCUMENTING
SUCH ENFORCEMENT IN A
"RECORD OF DISCUSSION" BECAUSE THE EMPLOYEE HAS GIVEN TESTIMONY IN A
FEDERAL LABOR RELATIONS
AUTHORITY PROCEEDING.
(C) DISCRIMINATING AGAINST EMPLOYEES IN ANY WAY BECAUSE THEY HAVE
GIVEN TESTIMONY IN A
FEDERAL LABOR RELATIONS AUTHORITY PROCEEDING.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT THE COMPTON OFFICE COPIES OF THE NOTICE ATTACHED HERETO
AS APPENDIX B, ON FORMS
TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY AN
APPROPRIATE OFFICIAL OF THE RESPONDENT 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 INSURE THAT
SAID NOTICES ARE ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(B) RESCIND THE "RECORDS OF DISCUSSION" ISSUED TO CAROL SMITH,
JEANETTE PERKINS, AND
BARBARA BEATTY PURSUANT TO DISCUSSIONS ON MARCH 17, 1982.
(C) RESCIND THE MARCH 17, 1982, ABSENT WITHOUT LEAVE (AWOL) CHARGES
AGAINST JEANETTE
PERKINS AND CAROL SMITH AND MAKE THEM WHOLE FOR LOST PAY AND
BENEFITS.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION 8, IN WRITING, WITHIN 30 DAYS FROM THE DATE
OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
/1/ ALSO CALLED THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
/2/ SECTION 7116(A) PROVIDES, IN PERTINENT PART:
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; . . . (OR)
(4) TO DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE
BECAUSE THE EMPLOYEE HAS
FILED A COMPLAINT, AFFIDAVIT, OR PETITION, OR HAS GIVEN ANY
INFORMATION OR TESTIMONY UNDER
THIS CHAPTER. . . .
/3/ "GC" REFERS TO THE EXHIBITS OF THE GENERAL COUNSEL. OTHER
ABBREVIATIONS TO BE USED HEREIN ARE AS FOLLOWING. "JT" REFERS TO THE
JOINT EXHIBIT OF THE PARTIES. "R" REFERS TO THE EXHIBITS OF RESPONDENT.
MULTIPAGE EXHIBITS ARE INDICATED BY EXHIBIT NUMBER FOLLOWED BY A PAGE OR
PARAGRAPH NUMBER. "TR" REFERS TO THE TRANSCRIPT. "GCBR" REFERS TO THE
BRIEF OF THE GENERAL COUNSEL, "RBR" TO THAT OF THE RESPONDENT, AND
"CPBR" TO THAT OF THE CHARGING PARTY.
THE GENERAL COUNSEL'S UNOPPOSED MOTION TO CORRECT TRANSCRIPT IS
GRANTED; AND THE CHANGES REQUESTED ARE MADE, AS SEE FORTH IN APPENDIX
A, HERETO. AN ADDITIONAL ONE, NUMBER 17, IS ADDED, PURSUANT TO AUTHORITY
SET FORTH IN 5 CFR 2423.19(R).
/4/ MS. PERKINS TESTIFIED THAT MS. MARTIN WAS STANDING OUTSIDE OF THE
MANAGER'S OFFICE WHEN SHE LEFT THE OFFICE TO GET THE CHICKEN AND, FROM
THIS FACT, ASSUMES THAT MS. MARTIN SAW HER LEAVE EARLY. MS. MARTIN WAS
NOT QUESTIONED ABOUT THIS. IT WAS NOT ESTABLISHED WHERE THE EXIT DOOR
AND THE TIME CLOCK ARE LOCATED IN RELATION TO THE MANAGER'S OFFICE.
/5/ RESPONDENT, AT PAGE 6 OF ITS BRIEF, CLAIMS THAT MS. PERKINS GAVE
"FALSE" TESTIMONY CONCERNING FLEX-TIME, AND REFERS TO GC 2 AND TR 34. GS
2 WAS THE WRITTEN RESPONSE MADE BY MS. PERKINS TO THE MARCH 17 RECORD
DISCUSSION PLACED IN HER PERSONNEL FILE BY MS. MARTIN. IT WAS NOT MADE
UNDER OATH. IN GC 2.1, MS. PERKINS REFERRED TO AN 11:30 LUNCH, FOR
"EARLY FLEXES", AS ONE WHICH "HAS BEEN NEGOTIATED WITH UNION APPROVAL."
MS. PERKINS TESTIFIED THAT THE MATTER WAS ONE WHICH THE MANAGER WAS
"CONSIDERING." I DO NOT FIND THAT THESE TWO STATEMENTS ARE DIAMETRICALLY
OPPOSED. ONE SAYS THE UNION "HAS NEGOTIATED" THE MATTER; THE OTHER SAYS
THAT MANAGEMENT IS "CONSIDERING" IT. NEGOTIATIONS ARE NOT ALWAYS
SUCCESSFUL.
RESPONDENT ALSO NOTES THAT MS. PERKINS AT FIRST TESTIFIED SHE WAS NOT
AWARE OF A DECISION BEING RENDERED IN THE UNFAIR LABOR PRACTICE CASE IN
WHICH SHE TESTIFIED, ON MARCH 16, AND THEN, IMMEDIATELY ADMITTED THAT
SOMEONE IN THE UNION HAS "MENTIONED" THE FACT THAT A DECISION HAS BEEN
RENDERED AND TOLD HER THE OUTCOME (TR 36). SINCE MS. PERKINS
IMMEDIATELY CONCEDED THE POINT, I BELIEVE THAT SHE TESTIFIED HONESTLY,
AS HER RECOLLECTION WAS $JOGGED.
/6/ SECTION 7116(A)(1) IS FULLY QUOTED IN FOOTNOTE 2, ABOVE. SECTION
7116(A)(2) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE "TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION BY
DISCRIMINATION IN CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT."
WILSON G. SCHUERHOLZ, REPRESENTATIVE FOR RESPONDENT.
E. A. JONES, ATTORNEY FOR THE GENERAL COUNSEL, FEDERAL LABOR
RELATIONS AUTHORITY
BARBARA LAWSON, REPRESENTATIVE FOR THE CHARGING PARTY
APPENDIX A
TRANSCRIPT CORRECTIONS
1. PAGE 39, LINES 19-20, CHANGE "COM" TO "COLUMN."
2. PAGE 43, LINE 25, CHANGE "COM" TO "COLUMN."
3. PAGE 46, LINE 21, CHANGE "COM" TO "COLUMN."
4. PAGE 53, LINE 7, CHANGE "THURSDAYS" TO "THIRD STEP;"
5. PAGE 55, LINE 15, CHANGE "THURSDAYS" TO "THIRD STEP."
6. PAGE 56, LINE 7, CHANGE "LEAFLET" TO "LEAVE SLIP."
7. PAGE 59, LINE 9, CHANGE "ATMAN" TO "ADMIN."
8. PAGE 59, LINE 10, CHANGE "ATMAN" TO "ADMIN."
9. PAGE 69, LINES 16-17, CHANGE "LEE" TO "LEAVE."
10. PAGE 104, LINE 3, CHANGE "PO" TO "EEO."
11. PAGE 118, LINE 3, CHANGE "CBC" TO "CDC."
12. PAGE 126, LINE 25, CHANGE "SERVICE OF" TO "SERVE AS."
13. PAGE 135, LINE 12, CHANGE "DELAY ON" TO "DELEON."
14. PAGE 150, LINE 24, CHANGE "ADIM" TO "ADMIN."
15. PAGE 152, LINE 21, CHANGE "DOT" TO "DRT."
16. PAGE 165, LINE 7, CHANGE "FRAN" TO "FRANK."
17, PAGE 100, LINE 22, CHANGE "NO" TO "NOTED."
APPENDIX B
NOTICE TO ALL EMPLOYEES
PURSUANT TO
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 INITIATE REVIEW OF EMPLOYEE WORK PERFORMANCE BECAUSE THE
EMPLOYEE HAS GIVEN TESTIMONY IN A FEDERAL LABOR RELATIONS AUTHORITY
PROCEEDING.
WE WILL NOT ENFORCE LUNCH SCHEDULES IN A DISPARATE MANNER AND
DOCUMENT SUCH ENFORCEMENT IN A "RECORD OF DISCUSSION" BECAUSE THE
EMPLOYEE HAS GIVEN TESTIMONY IN A FEDERAL LABOR RELATIONS AUTHORITY
PROCEEDING.
WE WILL NOT DISCRIMINATE AGAINST OUR EMPLOYEES IN ANY WAY BECAUSE
THEY HAVE GIVEN TESTIMONY IN A PROCEEDING BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY.
WE WILL RESCIND THE "RECORDS OF DISCUSSION" ISSUED PURSUANT TO
DISCUSSIONS WITH CAROL SMITH, JEANETTE PERKINS, AND BARBARA BEATTY ON
MARCH 17, 1982.
WE WILL RESCIND THE MARCH 17, 1982, ABSENT WITHOUT LEAVE (AWOL)
CHARGES AGAINST JEANETTE PERKINS AND CAROL SMITH AND MAKE THEM WHOLE FOR
LOST PAY AND BENEFITS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
. . . (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 8, WHOSE
ADDRESS IS: 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CA
90071 AND TELEPHONE NUMBER IS (213) 688-3805. 770801 0000720
22 FLRA-ALJ; CASE NO. 9-CA-20052 SEPTEMBER 27, 1982
ARMY AND AIR FORCE EXCHANGE SERVICE, MCCLELLAN AIR FORCE BASE
EXCHANGE, MCCLELLAN AIR FORCE BASE, CALIFORNIA, RESPONDENT AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857, AFL-CIO, CHARGING PARTY
BEFORE: FRANCIS E. DOWD, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, HEREIN REFERRED TO AS THE STATUTE, 92 STAT. 1191, 5
U.S.C. 7101, ET SEQ. IT WAS INSTITUTED BY THE ACTING REGIONAL DIRECTOR
OF THE NINTH REGION OF THE FEDERAL LABOR RELATIONS AUTHORITY BY THE
ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING DATED JANUARY 22, 1982.
THE COMPLAINT ALLEGES THAT ARMY AND AIR FORCE EXCHANGE SERVICE,
MCCLELLAN AIR FORCE EXCHANGE, MCCLELLAN AIR FORCE BASE, CALIFORNIA,
FAILED AND REFUSED TO BARGAIN IN GOOD FAITH IN VIOLATION OF SECTION
7116(A)(1) AND (5) OF THE STATUTE BY THE FOLLOWING: (A) UNILATERALLY
CHANGING EXISTING CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES
BY CHANGING THE MAXIMUM HOURS FOR REGULAR PART-TIME EMPLOYEES FROM 31 TO
32 HOURS PER WEEK, WITHOUT PROVIDING TO THE UNION AN OPPORTUNITY TO
BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF SAID CHANCE; AND (B)
MAKING THE FOREGOING UNILATERAL CHANGE IN ORDER TO NULLIFY A COLLECTIVE
BARGAINING AGREEMENT PROVISION CONCERNING THE CONDITIONS OF EMPLOYMENT
OF REGULAR PART-TIME EMPLOYEES WORKING 31 OR FEWER HOURS PER WEEK.
A HEARING WAS HELD IN SAN FRANCISCO, CALIFORNIA, AT WHICH TIME THE
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO
ADDUCE EVIDENCE, TO CALL, EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
ARGUE ORALLY. BRIEFS FILED BY THE GENERAL COUNSEL AND RESPONDENT HAVE
BEEN DULY CONSIDERED. /1/
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING MY
EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, AND
FROM MY OBSERVATION OF THE WITNESSES, AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER:
FINDINGS OF FACT
1. THE CHARGING PARTY HEREIN, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1857, AFL-CIO, HEREINAFTER THE UNION, IS, AND HAS BEEN
AT ALL MATERIAL TIMES HEREIN, A LABOR ORGANIZATION WITHIN IN THE MEANING
OF 5 U.S.C. 7103(A)(4).
2. RESPONDENT HEREIN, ARMY AND AIR FORCE EXCHANGE SERVICE, MCCLELLAN
AIR FORCE BASE EXCHANGE, CALIFORNIA, HEREINAFTER RESPONDENT, IS, AND HAS
BEEN AT ALL MATERIAL TIMES HEREIN, AN AGENCY WITHIN THE MEANING OF 5
U.S.C. 7103(A)(3).
3. (A) THE ORIGINAL CHARGE IN CASE 9-CA-20052 WAS FILED BY THE UNION
ON NOVEMBER 3, 1981, AND WAS SERVED ON RESPONDENT ON OR ABOUT THE SAME
DATE.
(B) THE FIRST AMENDED CHARGE IN CASE NO. 9-CA-20052 WAS FILED BY THE
UNION ON JANUARY 22, 1982, AND SERVED UPON RESPONDENT ON OR ABOUT THE
SAME DATE.
(C) THE COMPLAINT AND NOTICE OF HEARING WAS ISSUED BY REGION IX OF
THE FEDERAL LABOR RELATIONS AUTHORITY ON JANUARY 22, 1982, AND WAS
SERVED UPON RESPONDENT ON OR ABOUT THE SAME DATE.
(D) RESPONDENT'S ANSWER TO THE COMPLAINT WAS FILED WITH REGION IX OF
THE FEDERAL LABOR RELATIONS AUTHORITY ON JANUARY 28, 1982, ADMITTING
CERTAIN FACTS BUT DENYING SUBSTANTIVE ALLEGATIONS OF THE COMPLAINT.
4. (A) AT ALL TIMES MATERIAL HEREIN, ROBERT P. DESROCHERS HAS
OCCUPIED THE POSITION OF EXCHANGE MANAGER, AND BRUCE C. LUEDKE HAS
OCCUPIED THE POSITION OF PERSONNEL MANAGEMENT SPECIALIST.
(B) AT ALL TIMES MATERIAL HEREIN, THE ABOVE-NAMED INDIVIDUALS WERE
AGENTS OF RESPONDENT ACTING ON ITS BEHALF, AND ARE SUPERVISORS WITHIN
THE MEANING OF 5 U.S.C. 7102(A)(10).
5. (A) AAFES IS A SUBDIVISION OF THE DEPARTMENT OF DEFENSE, A
NONAPPROPRIATED FUND ACTIVITY WHICH MUST GENERATE ITS OWN REVENUES. OUT
OF THESE REVENUES IT PAYS ITS PERSONNEL COSTS AND OTHER OVERHEAD
EXPENSES. THE REMAINDER OF ITS REVENUES ARE RETURNED TO THE ARMY AND AIR
FORCE FOR USE AS WELFARE FUNDS.
(B) AAFES'S MISSION IS TO PROVIDE RETAIL SERVICES TO THE MILITARY AND
ITS DEPENDENTS AND OTHER AUTHORIZED PATRONS. THROUGH ITS FACILITIES AT
MCCLELLAN AFB, IT SELLS DEPARTMENT STORE MERCHANDISE, 7-11 TYPE FOOD
ITEMS, MAINTAINS A SERVICE STATION DOING MINOR REPAIRS AND SELLING
GASOLINE, PROVIDE SERVICES THROUGH ITS BARBER SHOPS, BEAUTY SHOPS AND
LAUNDRY AND DRY CLEANING SHOPS, OPERATES A MOVIE THEATER AND SELLS HOT
DOGS. AT MCCLELLAN AFB, AAFES OPERATES THROUGH FIVE RETAIL OUTLETS AND
AN EXCHANGE OFFICE IN ADDITION TO THE SERVICE FACILITIES ABOVE.
(C) BECAUSE AAFES OPERATES FOR PROFIT, ITS OPERATIONS ARE BUDGETED.
EACH EXCHANGE MANAGER IS EXPECTED TO PROJECT AND OPERATE ACCORDING TO A
QUARTERLY BUDGET. AS EXCHANGE MANAGER FOR MCCLELLAN AFB EXCHANGE DURING
THE RELEVANT TIME PERIOD, ROBERT DESROCHERS WAS RESPONSIBLE FOR ALL
EXCHANGE OPERATIONS AT MCCLELLAN AND MAINTAINING THEM WITHIN A PROJECTED
BUDGET.
(D) AAFES EMPLOYS THREE CATEGORIES OF EMPLOYEES AT MCCLELLAN: 42
REGULAR FULL-TIME EMPLOYEES (HEREINAFTER "RFTS"); 64 REGULAR PART-TIME
EMPLOYEES (HEREINAFTER "RPTS"); AND 33 INTERMITTENT EMPLOYEES
(HEREINAFTER "INTS"). RFTS ARE SCHEDULED TO WORK 40 HOURS PER WEEK.
RPTS, AS A CATEGORY, CAN BE SCHEDULED TO WORK 28-34 HOURS PER WEEK.
INTS CAN BE SCHEDULED TO WORK UP TO A MAXIMUM OF 19 HOURS. INTS DIFFER
FROM RPTS IN THAT THEY NORMALLY ARE SCHEDULED TO WORK ABBREVIATED
SCHEDULES OF 4 HOURS OR LESS PER DAY.
(E) THE REASON RESPONDENT EMPLOYS RPTS AND INTS IS TO FILL IN
SCHEDULES AT PEAK HOURS-- SUCH AS DURING LUNCH, IMMEDIATELY AFTER WORK,
ON PAY DAYS, AND ON DELIVERY DAYS IN THE WAREHOUSE. THESE PEAK PERIODS
ARE USUALLY IN SHORT INCREMENTS OF LESS THAN 8 HOURS. EMPLOYEES REPORT
TO WORK AT VARIOUS HOURS DURING THE DAY BEGINNING AT 7:00 A.M.,
MONDAY-SUNDAY. SOME EMPLOYEES WORK INTO THE EVENINGS.
6. ON OR ABOUT APRIL 10, 1981, RESPONDENT, BY ITS AGENT, EXCHANGE
MANAGER ROBERT P. DESROCHERS, NOTIFIED THE UNION OF ITS INTENT TO CHANGE
THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES BY CHANGING
THE MAXIMUM HOURS OF REGULAR PART-TIME (RPT) EMPLOYEES FROM 34 TO 31
HOURS. OF THE 64 RPT EMPLOYEES WORKING A RANGE OF 28 TO 34 HOURS,
APPROXIMATELY THREE ACTUALLY WORKED LESS THAN THE MAXIMUM OF 34 HOURS.
THERE IS NO DISPUTE THAT THE PROPOSED CHANGE FROM 34 TO 31 HOURS WOULD
EFFECT APPROXIMATELY 61 EMPLOYEES. IF THE MAXIMUM WERE CHANGED TO 32
HOURS THE SAME 61 EMPLOYEES WOULD BE EFFECTED BECAUSE THEY WOULD BE
SCHEDULED TO WORK THE MAXIMUM NUMBER OF HOURS PERMITTED.
7. BY LETTER DATED APRIL 21, 1981, THE UNION ADVISED RESPONDENT THAT
IT WISHED TO OFFER COUNTERPROPOSALS AND NEGOTIATE CONCERNING THE
PROPOSED CHANGE. NEITHER THIS LETTER NOR SUBSEQUENT CORRESPONDENCE
INDICATED ANY INTENT BY THE UNION TO LIMIT DISCUSSIONS TO IMPACT AND
IMPLEMENTATION. ITS INITIAL PROPOSAL (G.C. EXH. NO. 5) CONTAINED 10
TOPICS, SEVERAL OF WHICH WERE UNRELATED TO RESPONDENT'S PROPOSED
REDUCTION IN THE MAXIMUM WORKWEEK.
8. BETWEEN APRIL 10, 1981 AND JULY 8, 1981, RESPONDENT AND THE UNION
EXCHANGED PROPOSALS (G.C. EXH. NOS. 6 AND 7) AND HAD VARIOUS MEETINGS
AND CONVERSATIONS CONCERNING NEGOTIATING THE PROPOSED CHANGE AND OTHER
UNION PROPOSALS CONCERNING, INTER ALIA, BREAK PERIODS, STARTING AND
CLOSING HOURS, CONSECUTIVE DAYS OFF, AND CHANGES IN WORK SCHEDULES AND
THEIR IMPACT ON EMPLOYEES ON CAR POOLS.
9. IN THE JULY 8 AND 9 NEGOTIATIONS, THE UNION WAS REPRESENTED BY
BUSINESS AGENT CHUCK PETTINGELL AND CHIEF STEWARD SUE TEWELL, BOTH OF
WHOM TESTIFIED AT THE HEARING IN THIS MATTER. RESPONDENT WAS REPRESENTED
BY PERSONNEL MANAGEMENT SPECIALIST BRUCE LUEDKE AND EXCHANGE MANAGER
ROBERT DESROCHERS, BOTH OF WHOM TESTIFIED AT THE HEARING, AND BY
PERSONNEL MANAGER BARBARA SMITH. ELLEN LETTRELL WAS AN OBSERVER FOR THE
RESPONDENT.
10. DURING THE COURSE OF NEGOTIATIONS, THE PARTIES DISCUSSED THE
FOLLOWING UNION PROPOSAL (PARAGRAPH 3 OF G.C. EXH. NO. 5):
WHEN THE EMPLOYER DETERMINES A GENERAL REDUCTION IS NECESSARY FOR
ECONOMY REASONS IN THE
NUMBER OF SCHEDULED WORK HOURS FOR EMPLOYEES, SUCH REDUCTION WILL BE
APPLIED EQUALLY AMONG ALL
MEMBERS OF THE BARGAINING UNIT. REGULAR CATEGORY EMPLOYEES WILL NOT
BE REDUCED WHILE
INTERMITTENT, ON-CALL OR TEMPORARY EMPLOYEES ARE ASSIGNED. /2/
IN CONNECTION WITH THIS DISCUSSION, BRUCE LUEDKE APPARENTLY REALIZED
FOR THE FIRST TIME THAT THE RPT EMPLOYEES HAD BEEN REDUCED 3 HOURS
WHEREAS THE INT EMPLOYEES HAD BEEN REDUCED ONLY 2 HOURS. DURING A CAUCUS
AND LUNCH BREAK, LUEDKE DISCUSSED WITH DESROCHERS THE POSSIBILITY OF
ONLY REDUCING THE WORKWEEK TO 32, RATHER THAN 31, HOURS. DESROCHERS
AGREED TO MAKE THIS CHANGE-- WHICH HE REGARDED AS A MAJOR CONCESSION--
/3/ AND THE UNION WAS NOTIFIED OF THIS DECISION WHEN NEGOTIATIONS
RESUMED AFTER LUNCH. /4/
11. AFTER EXPLAINING RESPONDENT'S DECISION TO THE UNION, THE PARTIES
TURNED THEIR ATTENTION TO THE UNION'S PROPOSAL AND THE RESPONDENT'S
COUNTERPROPOSAL RELATIVE TO THE 4-DAY WORKWEEK. RESPONDENT AGREED "TO
MAKE A REASONABLE EFFORT" AND ON ITS PROPOSAL CHANGED THE PHRASE "30 OR
FEWER HOURS" TO READ "31 OR FEWER HOURS" SO AS TO MAINTAIN THE SAME
RELATIONSHIP TO THE AGREED UPON 32 HOURS MAXIMUM WORKWEEK. AS NOTED
PREVIOUSLY, APPROXIMATELY 61 OF 64 RPT EMPLOYEES WORKED THE MAXIMUM
NUMBER OF HOURS. THEREFORE, ABSENT A FURTHER REDUCTION IN HOURS, THIS
PROVISION OF THE AGREEMENT WOULD ONLY APPLY TO ABOUT THREE EMPLOYEES.
THE AGREED UPON PROVISION (HEREINAFTER REFERRED TO AS PARAGRAPH G.) IS
AS FOLLOWS:
MANAGEMENT WILL MAKE A REASONABLE EFFORT TO ACCOMMODATE THE EXPRESSED
DESIRE OF A RPT
EMPLOYEE SCHEDULED TO WORK 31 OR FEWER HOURS PER WEEK TO COMPRESS
HIS/HER WORK HOURS INTO A
FOUR-DAY WEEK WITH AT LEAST TWO (2) CONSECUTIVE DAYS OFF.
THE UNION AGREED TO THIS CHANGE, INITIALED THE PROPOSAL (RESP. EXH.
NO. 1), AND THE NEGOTIATIONS WERE COMPLETED (TR. 100, 101).
12. ON JULY 15, 1981, RESPONDENT, BY ITS AGENT, EXCHANGE MANAGER
ROBERT D. DESROCHERS, ANNOUNCED THE IMPLEMENTATION OF THE CHANGE AS IT
WAS AGREED TO IN THE PARTIES' AGREEMENT OF JULY 8 AND 9, 1981, NAMELY
THAT RFT AND INT EMPLOYEES WOULD HAVE A MAXIMUM WORKWEEK OF 32 AND 16
HOURS RESPECTIVELY, EFFECTIVE JULY 25, 1981. /5/ THEREAFTER, THE UNION,
BY PETTINGELL, ACCUSED DESROCHERS OF ATTEMPTING TO NULLIFY PARAGRAPH G.
BY HIS ALLEGED UNILATERAL CHARGE, AND FILED THE INSTANT UNFAIR LABOR
PRACTICE CHARGE.
DISCUSSION AND CONCLUSIONS OF LAW
THERE IS NO DISPUTE AS TO THE LEGAL PRINCIPLES WHICH GOVERN THIS
PROCEEDING. FEDERAL AGENCIES HAVE AN OBLIGATION TO BARGAIN OVER THE
IMPACT AND IMPLEMENTATION OF MANAGEMENT DECISIONS WHICH WOULD CHANGE
EXISTING CONDITIONS OF EMPLOYMENT. SCOTT AIR FORCE BASE, 5 FLRA NO. 2.
THEREFORE, FEDERAL AGENCIES HAVE A DUTY TO PROVIDE THE COLLECTIVE
BARGAINING REPRESENTATIVE WITH ADEQUATE NOTICE OF ANY PROPOSED CHANGE SO
THAT THE UNION HAS A REASONABLE OPPORTUNITY TO REQUEST BARGAINING.
THERE IS NO DISPUTE THAT ON APRIL 10, RESPONDENT NOTIFIED THE UNION OF
ITS INTENT TO REDUCE THE MAXIMUM WORKWEEK OF RPT EMPLOYEES, THAT ON
APRIL 21, THE UNION REQUESTED BARGAINING, AND THAT THE PARTIES DID IN
FACT BARGAIN. ALTHOUGH THE UNION MAY NOT HAVE MADE A FORMAL DEMAND THAT
RESPONDENT CHANGE ITS DECISION TO REDUCE THE MAXIMUM WORKWEEK THEY DID
COMPLAIN ABOUT MANAGEMENT'S DECISION BEFORE AND DURING (TR. 67)
NEGOTIATIONS. THE NEGOTIATIONS BETWEEN THE PARTIES COVERED A NUMBER OF
SUBJECTS IN ADDITION TO THE IMPACT AND IMPLEMENTATION OF THE DECISION TO
REDUCE THE WORKWEEK.
A CRITICAL FACTUAL ISSUE TO BE RESOLVED IS WHETHER RESPONDENT, DURING
THE COURSE OF NEGOTIATIONS ON ITS PROPOSAL TO REDUCE THE MAXIMUM
WORKWEEK FOR REGULAR PART-TIME EMPLOYEES FROM 34 TO 31 HOURS, CHANGED
ITS PROPOSED MAXIMUM WORKWEEK TO 32 HOURS AND NOTIFIED THE UNION OF THIS
DECISION PRIOR TO REACHING AGREEMENT ON A COMPRESSED WORKWEEK PROVISION
AFFECTING REGULAR PART-TIME EMPLOYEES WORKING 31 OR FEWER HOURS PER
WEEK. BASED UPON MY OBSERVATION OF LEUDKE AND DESROCHERS, AND THEIR
DEMEANOR AS WITNESSES, AND AFTER CAREFULLY REVIEWING THEIR ENTIRE
TESTIMONY, I AM PERSUADED THAT THEY WERE TELLING THE TRUTH IN THEIR
EXPLANATION OF THE NEGOTIATIONS AND, SPECIFICALLY, THAT THE UNION WAS
INFORMED DURING THE NEGOTIATIONS OF RESPONDENT'S DECISION TO ONLY REDUCE
THE MAXIMUM WORKWEEK TO 32 HOURS.
PETTINGELL AND TEWELL DENIED THAT THEY RECEIVED NOTICE AT THE HEARING
OF THE CHANGE TO 32 HOURS. I DO NOT CREDIT THEIR TESTIMONY ON THIS
CRUCIAL FACT. I BELIEVE WHAT REALLY HAPPENED (AS SUGGESTED IN
RESPONDENT'S BRIEF) IS THAT THE UNION REPRESENTATIVES WERE SO PLEASED
WITH RESPONDENT'S PROPOSAL THAT RPT HOURS WOULD ONLY BE REDUCED TO 32
HOURS THAT THEY FORGOT OR OVERLOOKED THE IMPACT THIS WOULD HAVE ON THE
APPLICATION OF 2G OF THE AGREEMENT. IN FACT, THE TESTIMONY OF PETTINGELL
MAKES THIS PROBABLE. AT TR. 30, WHEN PETTINGELL WAS ASKED BY COUNSEL FOR
GENERAL COUNSEL, "WHAT, IF ANYTHING, DID YOU DO AFTER YOU LEARNED THAT
THE HOURS HAD BEEN INCREASED TO 32 HOURS?" HE RESPONDED: "WELL MY FIRST
REACTION WAS, I SAID TO SUE, 'HEY, THAT'S GOOD. MAYBE WE CAN ACCOMPLISH
SOMETHING IN NEGOTIATIONS. AFTER ALL, MAYBE THEY SAW THE RESPONDENT'S
FAIT ACCOMPLI ANNOUNCEMENT WHICH PETTINGELL HOPED TO CORRECT WITH A MERE
"PEN-AND-INK CHANGE" (TR. 31) DOESN'T MAKE SENSE. WHY PETTINGELL WOULD
EXPECT DESROUCHERS TO AGREE TO THIS COURSE OF ACTION IN VIEW OF HIS
STRONG POSITION DURING NEGOTIATIONS IS HARD TO COMPREHEND. RATHER, I
WOULD SUGGEST THAT PETTINGELL ACTUALLY HAD THIS ACTION AT THE TABLE ON
JULY 9 AND THAT HE DID NOT REALIZE THE EFFECT AGREEING TO 32 HOURS FOR
RPTS HAD ON PARAGRAPH G. UNTIL SOME TIME AFTER THE WRITTEN AGREEMENT WAS
SIGNED AND THE "32 HOUR" ANNOUNCEMENT WAS MADE BY DESROCHERS BY MEMO
DATED 15 JULY 1981. ONCE THE UNION REALIZED THAT THEY HAD NOT GOTTEN
EVERYTHING THEY WANTED AT THE BARGAINING TABLE, THEY DECIDED TO USE THE
UNFAIR LABOR PRACTICE PROCESS TO GAIN ADDITIONAL CONCESSIONS FROM
MANAGEMENT.
IN FURTHER SUPPORT OF THIS THEORY, I NOTE THAT PETTINGELL TESTIFIED
(TR. 32) THAT THE COMPRESSED WORKWEEK ISSUE DID NOT:
REALLY HINGE ON THE HOURS AS MUCH AS WHAT MANAGEMENT WOULD DO WHEN
THEY RECEIVE A REQUEST--
HOW THEY WOULD HANDLE IT; WOULD IT BE MANDATORY, DID THEY GRANT IT,
DID THEY GIVE REASONABLE
EFFORT-- THEY DIDN'T WANT TO BE PUSHED INTO A CORNER. AND THE ONLY
WAY THAT WE COULD GET
ANYTHING AT ALL, I COULD SEE, WAS THAT WE COULD GO TO IMPASSE. BUT TO
ME, IT DIDN'T MAKE
SENSE TO GO TO IMPASSE ON SOMETHING IF WE COULD GO BACK TO THE
EMPLOYEES AND SAY, "OKAY, ANY
OF YOU THAT HAVE THIS SITUATION, IF YOU WANT TO MAKE A REQUEST, JUST
GO INTO THE SUPERVISORS
AND ASK THEM. THEY ARE OBLIGATED TO LISTEN TO YOU. AND IF YOU'VE GOT
A GOOD REASON, FINE,
THEY CAN GRANT IT FOR YOU."
ANALYSIS OF THE FOREGOING REVEALS THAT PETTINGELL WAS SO ABSORBED
WITH THE IDEA OF OBTAINING APPROVAL OF THE CONCEPT OF A 4-DAY WORKWEEK,
AND WAS SO HAPPY TO OBTAIN APPROVAL OF HIS IDEA THAT MANAGEMENT WOULD
"MAKE REASONABLE EFFORT," /6/ THAT HE UNINTENTIONALLY OVERLOOKED THE
IMPACT OF THE PHRASE "31 OR FEWER HOURS" IN THE PROVISION FINALLY AGREED
TO. WITH ALL THE OTHER ACCOMPLISHMENTS MADE IN THE NEGOTIATIONS, /7/
PETTINGELL WALKED AWAY FROM THE BARGAINING TABLE NOT REALIZING THAT HE
REALLY HAD NOT GOT EVERYTHING HE WANTED. HOWEVER, HE DID WIN SOMETHING
BECAUSE, AS POINTED OUT BY LEUDKE, THIS CONTRACTUAL PROVISION
CONCEIVABLY COULD APPLY TO MORE EMPLOYEES IN THE FUTURE IF THE MAXIMUM
WORKWEEK HAD TO BE FURTHER REDUCED. I AM CONVINCED THAT IT WAS NOT UNTIL
SUE TEWELL SPOKE TO HIM (TR. 30, LINES 8-9) THAT HE FIRST REALIZED WHAT
HAD HAPPENED. WHEN HIS ATTEMPT TO "FINESSE" THE PROBLEM WITH DESROCHERS
FAILED, HE RESORTED TO THE UNFAIR LABOR PRACTICE PROCESS. /8/
THE GENERAL COUNSEL POINTS TO THE FACT THAT PETTINGELL WAS
"SURPRISED" WHEN HE SOUGHT OUT DESROCHERS AFTER THE JULY 15
ANNOUNCEMENT. PETTINGELL'S SURPRISE, IF IT WERE GENUINE AND NOT FEIGNED,
COULD JUST AS EASILY BE BASED ON HIS OWN MISUNDERSTANDING RATHER THAN ON
AN ATTEMPT BY RESPONDENT'S MANAGEMENT PERSONNEL TO ACT IN A DEVIOUS
MANNER. VIEWING THE NEGOTIATIONS IN THEIR ENTIRETY, I AM PERSUADED THAT
RESPONDENT BARGAINED IN GOOD FAITH THROUGHOUT, AND TO THE EXTENT ANYONE
WAS SURPRISED, IT WAS DESROUCHERS (TR. 87, LINE 14) WHEN CONFRONTED BY
PETTINGELL'S POST-JULY 15 REQUEST TO ALTER THE CONTRACTUAL LANGUAGE.
CONTRARY TO THE GENERAL COUNSEL I DO NOT FIND THE TESTIMONY OF
RESPONDENT'S WITNESSES TO BE ANY MORE "SELF-SERVING" THAN THE GENERAL
COUNSEL'S OWN WITNESSES. INDEED, I FIND THAT THE CREDIBLE TESTIMONY
REINFORCED AND BECAME EVEN MORE PERSUASIVE - DURING VIGOROUS
CROSS-EXAMINATION BY COUNSEL FOR THE GENERAL COUNSEL.
HAVING CONCLUDED THAT THE UNION WAS NOTIFIED DURING NEGOTIATIONS OF
RESPONDENT'S DECISION TO ESTABLISH A 32 HOUR MAXIMUM WORKWEEK, I FURTHER
CONCLUDE THAT ITS JULY 15 ANNOUNCEMENT WAS NOTHING MORE THAN AN
IMPLEMENTATION OF ITS EARLIER DECISION ABOUT WHICH THE UNION HAD AN
OPPORTUNITY AT THE BARGAINING TABLE TO FULLY DISCUSS AND EXPLORE ITS
IMPACT AND IMPLEMENTATION. THE IMPACT OF THIS DECISION ON PARAGRAPH G.
SHOULD HAVE BEEN OBVIOUS TO THE UNION AND THE FACT THAT THEIR
REPRESENTATIVES MAY HAVE OVERLOOKED THIS DOES NOT SERVE TO CONVERT
RESPONDENT'S GOOD FAITH BARGAINING INTO A BAD FAITH ATTEMPT TO NULLIFY
PARAGRAPH G. OF THE MUTUALLY ARRIVED AT AGREEMENT. /9/
ULTIMATE CONCLUSIONS OF LAW
IN SUMMARY, I ADOPT THE FOLLOWING PROPOSED CONCLUSIONS SUBMITTED BY
RESPONDENT:
1. RESPONDENT DID BARGAIN IN GOOD FAITH WITH THE UNION CONCERNING THE
CHANGE IT PROPOSED
ON APRIL 10, 1981.
2. THE RESPONDENT AND THE UNION ENTERED INTO A COLLECTIVE BARGAINING
AGREEMENT CONCERNING
THE PROPOSED CHANGE ON JULY 8 AND 9, 1981.
3. RESPONDENT DID NOT VIOLATE 5 U.S.C. 7116(A)(1) OR (5) WHEN IT
IMPLEMENTED ON JULY 15,
1981, THE AGREEMENT REACHED BY THE PARTIES ON JULY 9, 1981.
4. RESPONDENT DID NOT REFUSE TO BARGAIN IN BAD FAITH NOR MAKE A
UNILATERAL CHANGE IN TERMS
AND CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES BY THE ACTS
AND CONDUCT DESCRIBED
ABOVE.
HAVING FOUND THAT RESPONDENT DID NOT ENGAGE IN ANY UNFAIR LABOR
PRACTICES BY THE ACTIONS AND CONDUCT DESCRIBED ABOVE, AND THEREFORE HAS
NOT VIOLATED SECTIONS 7116(A)(1) AND (5) AS ALLEGED IN THE COMPLAINT, IT
IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
THAT THE COMPLAINT IN CASE NO. 9-CA-20052 BE, AND IT HEREBY IS,
DISMISSED.
/1/ EXCELLENT BRIEFS IN SUPPORT OF THEIR RESPECTIVE POSITIONS WERE
FILED BY COUNSEL FOR RESPONDENT AND COUNSEL FOR THE GENERAL COUNSEL. TO
THE EXTENT POSSIBLE, I HAVE ATTEMPTED TO INCORPORATE THEIR PROPOSED
FINDINGS AND CONCLUSIONS IN THIS DECISION.
/2/ THE PROVISION ULTIMATELY NEGOTIATED READS AS FOLLOWS:
"WHEN THE EMPLOYER DETERMINES THAT AN OVERALL REDUCTION IN SCHEDULED
WORK HOURS IS
NECESSARY, THIS WILL BE ACCOMPLISHED FOR ALL INT (RS), RPT, AND
LASTLY RFT EMPLOYEES, IF
NEEDED, ASSIGNED TO THE FACILITY, IN THAT ORDER."
/3/ PETTINGELL ADMITS (TR. 25) THAT IN A PRE-NEGOTIATION TALK WITH
DESROCHERS HE INQUIRED "WHY ARE YOU CUTTING THE INTERMITTENTS LESS HOURS
THAN OUR PART-TIMERS?" (SEE ALSO THE TESTIMONY OF DESROCHERS (TR.
67-71, 84). HOWEVER, HE ASSERTS THAT AT THE JULY 8 AND 9 NEGOTIATIONS HE
MADE "NO DEMAND" THAT THE MAXIMUM WORKWEEK BE INCREASED TO 32 HOURS.
WHETHER HE MADE A FORMAL DEMAND OR NOT, IT IS CLEAR THAT THE REDUCTION
IN THE HOURS OF WORK OF RPT EMPLOYEES WAS DISCUSSED IN CONNECTION WITH
PARAGRAPH 3 OF THE UNION'S ORIGINAL PROPOSAL.
/4/ MY FINDING THAT THE UNION WAS PROVIDED WITH NOTICE IS BASED UPON
THE CREDITED TESTIMONY OF LEUDKE (TR. 100) AND DESROCHERS (TR. 70, LINES
21-25, TR. 71, LINE 1). THIS WILL BE DISCUSSED IN MORE DETAIL LATER IN
THIS DECISION.
/5/ INASMUCH AS THE RESPONDENT HAD MERELY ANNOUNCED, BUT NEVER
IMPLEMENTED, A 31 HOUR WORKWEEK, I BELIEVE IT WOULD BE MORE ACCURATE TO
REFER TO THIS ACTION AS A REDUCTION FROM 34 TO 32 HOURS, RATHER THAN AN
INCREASE FROM 31 TO 32 HOURS.
/6/ THE UNION'S ORIGINAL COUNTERPROPOSAL REQUIRED MANAGEMENT TO "MAKE
EVERY EFFORT." PETTINGELL TAKES CREDIT FOR SUGGESTING A CHANGE TO
"REASONABLE EFFORT." (TR. 27, LINE 25 AND TR. 28 LINES 22-24.
/7/ THESE CAN BE SEEN BY COMPARING THE INITIAL UNION PROPOSALS WITH
THE FINAL AGREEMENT.
/8/ FROM DESROCHER'S TESTIMONY, IT IS CLEAR THAT PETTINGELL'S
APPROACH WAS TO SUGGEST THAT AN ERROR HAD BEEN MADE BY MANAGEMENT WHICH
COULD BE CORRECTED VERY READILY BY CHANGING 31 TO 32 IN PARAGRAPH G.
ACCORDING TO DESROCHER (TR. 87) THERE OBVIOUSLY HAD BEEN A
"MISUNDERSTANDING" BUT IT WAS ON THE PART OF THE UNION. I AGREE WITH
THIS OBSERVATION BY DESROCHERS.
/9/ IN THESE CIRCUMSTANCES, I FIND IT UNNECESSARY TO ADDRESS
ALTERNATIVE 3 IN RESPONDENT'S BRIEF SUGGESTING THAT THE PARTIES SHOULD
BE LEFT TO RESOLVE THEIR DIFFERENCES THROUGH OTHER MEANS AND OTHER
FORUMS SHOULD I CONCLUDE THAT PARAGRAPH G. WAS THE RESULT OF A "MUTUAL
MISUNDERSTANDING."
BARBARA SMITH, AND IRENE JACKSON, ESQ., FOR THE RESPONDENT
NANCY E. PRITIKIN, ESQ., FOR THE GENERAL COUNSEL 770801 0000710
22 FLRA-ALJ; CASE NO. 8-CA-1267 SEPTEMBER 20, 1982
UNITED STATES FORCES KOREA/EIGHTH UNITED STATES ARMY, RESPONDENT AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363, CHARGING PARTY
BEFORE: ELI NASH, JR., ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, HEREINAFTER REFERRED TO AS THE STATUTE, 92 STAT.
1191, 5 U.S.C. 7101 ET SEQ. IT WAS INSTITUTED BY THE REGIONAL DIRECTOR
OF REGION 8 BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING ON
OCTOBER 29, 1981 BASED UPON A CHARGE FILED ON AUGUST 20, 1981, BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363, HEREINAFTER CALLED
THE UNION.
THE COMPLAINT ALLEGES THAT THE UNITED STATES FORCES KOREA/EIGHTH
UNITED STATES ARMY, HEREIN CALLED THE RESPONDENT, UNILATERALLY
IMPLEMENTED A CHANGE IN WORKING CONDITIONS WITHOUT FIRST NOTIFYING THE
UNION AND AFFORDING IT AN OPPORTUNITY TO BARGAIN OVER SUCH CHANGE; AND,
BY REFUSING TO TIMELY FURNISH CERTAIN INFORMATION TO THE UNION,
RESPONDENT VIOLATED SECTION 7116 (A)(1)(5) AND (8) OF THE STATUTE. THE
COMPLAINT ALSO ALLEGES AN INDEPENDENT VIOLATION OF SECTION 7116(A)(1).
A HEARING WAS HELD IN YONGSAN GARRISON, SEOUL, KOREA AT WHICH THE
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO
ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE
ORALLY. BRIEFS WERE FILED BY ALL PARTIES CONCERNED HAVE BEEN DULY
CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS MATTER, INCLUDING MY
EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, AND
MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
STATEMENT OF FACTS
THE NAVY CLUB, HEREINAFTER CALLED THE CLUB, IS A NAVY ENLISTED MESS
OPERATED BY THE NAVY UNDER THE GUIDELINES ESTABLISHED IN THE MANUAL FOR
MESSES ASHORE. THE CLUB WHICH IS LOCATED ON YONGSAN ARMY GARRISON,
SEOUL, KOREA, IS OPERATED BY THE COMMANDER, NAVAL FORCES, KOREA. THE
COMMANDER, NAVAL FORCES, KOREA, DOES NOT EMPLOY ANY CIVILIAN EMPLOYEES.
NAVAL FORCES, KOREA, IS A COMPONENT OF RESPONDENT. FOR THOSE ISSUES
RELATING TO KOREA DIRECTLY THE COMMANDER, NAVAL FORCES, KOREA, REPORTS
TO THE COMMANDER, U.S. FORCES, KOREA. THE COMMANDER, U.S. FORCES, KOREA,
HAS AUTHORITY OVER THE CLUB BECAUSE IT IS LOCATED ON HIS COMPOUND AND HE
HAS CONTROL OVER THE BUILDING WHICH IT OCCUPIES.
ON OR ABOUT MAY 3, 1981, WILLIAM KUSS, A GS-12 EMPLOYEE OF JOINT
COMMAND INFORMATION SYSTEMS DIRECTORATE, WAS INFORMED BY THE
SERGEANT-AT-ARMS OF THE CLUB WHILE HE WAS DINING AT THE CLUB THAT THERE
HAD BEEN A CHANGE IN THE REGULATION CONCERNING WHO COULD BE ADMITTED TO
THE CLUB AT HOURS OTHER THAN LUNCH TIME ON WEEKDAYS AND THAT HE WOULD
HAVE TO LEAVE AFTER HE FINISHED WHAT HE ALREADY ORDERED. KUSS HAD BEEN
UTILIZING THE CLUB APPROXIMATELY TWO OR THREE TIMES PER WEEK, MOSTLY
NIGHTS AFTER 5 P.M. AND WEEKENDS, SINCE HIS ARRIVAL IN KOREA IN JUNE OF
1978. KUSS WAS KNOWN TO THE MANAGEMENT OF THE CLUB AS A GS-12 CIVILIAN
EMPLOYEE AND ALSO WAS APPARENTLY DISTINGUISHABLE AS A CIVILIAN EMPLOYEE
FROM HIS ATTIRE AND HAIR LENGTH.
CHARLES WILSON ALSO A GS-12 EMPLOYEE, WHO HAS WORKED FOR UNITED
STATES ARMY FACILITIES ACTIVITY-KOREA SINCE SEPTEMBER 1980, WAS ALSO
TOLD HE COULD NO LONGER USE THE DINING FACILITIES AT THE CLUB AFTER 5
P.M. WILSON WAS INFORMED THAT CIVILIANS ABOVE THE GRADE OF GS-6 WOULD NO
LONGER BE ALLOWED TO UTILIZE THE FACILITIES. WITHIN THE NEXT SEVERAL
DAYS, WILSON WENT TO THE HEADQUARTERS OF THE COMMANDER, NAVAL FORCES,
KOREA, TO INQUIRE ABOUT THIS NEW POLICY AND TO REGISTER HIS PROTEST. HE
WAS TOLD THE REASON THE POLICY WAS BEING INSTITUTED WAS THAT IT WAS
DETRIMENTAL TO THE MORALE OF THE ENLISTED PERSONNEL TO HAVE OFFICERS IN
THE SAME CLUB AND FOR THAT REASON THE COMMANDER, NAVAL FORCES, KOREA,
WAS EXCLUDING OFFICERS AND THEIR CIVILIAN EQUIVALENTS. UP UNTIL THIS
POINT IN TIME, WILSON WAS NOT AWARE OF ANY REQUIREMENT CONCERNING WHO
COULD OR COULD NOT UTILIZE THE CLUB. FURTHER, CIVILIANS OF ALL GRADES
ARE STILL PERMITTED TO USE OTHER ENLISTED MESSES ON THE YONGSAN
FACILITY. SHORTLY THEREAFTER, A SIGN WAS POSTED AT THE CLUB WHICH STATED
THAT CIVILIANS ABOVE THE GRADE OF GS-6 WOULD NOT BE ALLOWED TO USE THE
FACILITIES. /1/
NEITHER KUSS NOR WILSON ARE MEMBERS OF THE UNION OR THE BARGAINING
UNIT.
ON MAY 3, 1981, DON C. TERRILL, PRESIDENT OF THE UNION, REQUESTED
UNDER THE FREEDOM OF INFORMATION ACT THAT A COPY OF ALL POLICY DOCUMENTS
ISSUED BY NAVAL FORCES, KOREA, REGARDING PATRON ELIGIBILITY FOR THE CLUB
LOCATED ON YONGSAN GARRISON BE FURNISHED. THE REQUEST ALLEGEDLY WAS MADE
UNDER THE FREEDOM OF INFORMATION ACT BECAUSE OF THE LENGTH OF TIME
RESPONDENT TOOK TO RESPOND TO REQUESTS MADE UNDER THE STATUTE. BY LETTER
DATED MAY 11, 1981, RESPONDENT INFORMED THE UNION THAT THE REQUESTED
DOCUMENTS COULD BE FURNISHED AT A COST OF $2.90. BECAUSE OF AN ONGOING
UNFAIR LABOR PRACTICE CHARGE OVER THE ISSUE OF WAIVER OF THESE FEES
ASSESSED UNDER THE FREEDOM OF INFORMATION ACT, THE UNION REFUSED TO PAY
THE FEE. CONSEQUENTLY, THE INFORMATION WAS NOT FURNISHED AT THAT TIME.
ON MAY 12, 1981, THE UNION SENT A REQUEST UNDER SECTION 7114 OF THE
STATUTE FOR ESSENTIALLY THE SAME INFORMATION REQUESTED IN ITS PREVIOUS
FREEDOM OF INFORMATION ACT REQUEST. THE UNION REQUESTED THIS INFORMATION
IN ORDER TO ALLOW IT TO ENGAGE IN COLLECTIVE BARGAINING CONCERNING THE
CHANGE IN CIVILIAN USE OF THE CLUB. BY LETTER DATED JUNE 2, 1981, THE
UNION AGAIN REQUESTED THE DATA REGARDING THE UNILATERAL CHANGE IN THE
CLUB POLICY. IN ADDITION, THIS LETTER REQUESTED THE MATTER BE PLACED ON
THE AGENDA FOR A FORMAL MEETING SCHEDULED FOR JUNE 5, 1981.
THE ABOVE REQUESTED MEETING WAS FINALLY HELD ON JUNE 8, 1981. AT THAT
MEETING THE UNION WAS INFORMED THAT NAVAL FORCES, KOREA, WAS PREPARING
AN ANSWER TO THE REQUEST FOR DATA. ANOTHER REQUEST FOR THE DATA WAS MADE
BY LETTER DATED JUNE 19, 1981. THIS LETTER ALSO REQUESTED THE MATTER OF
THE CLUB BE PLACED ON THE AGENDA OF THE MEETING SCHEDULED FOR JUNE 22,
1982. AT THE ABOVE REQUESTED MEETING WHICH WAS SUBSEQUENTLY HELD ON JUNE
28, 1981, RESPONDENT STATED IT EXPECTED TO PROVIDE THE UNION WITH THE
REQUESTED DATA "THIS WEEK OR NEXT WEEK." ON JULY 25, 1981, THE UNION
AGAIN REQUESTED DATA CONCERNING THE CLUB BE FURNISHED.
ON JULY 29, 1981, A MEETING AT WHICH THE CLUB WAS DISCUSSED WAS HELD.
THERE THE UNION WAS TOLD RESPONDENT WAS HAVING DIFFICULTY GETTING
COOPERATION, BUT THAT THE MATTER COULD PROBABLY BE STRAIGHTENED OUT UPON
ARRIVAL OF RESPONDENT'S NEW CHIEF OF STAFF, GENERAL PALASTRA. THE UNION
ASSURED RESPONDENT THAT IT WOULD NOT FILE AN UNFAIR LABOR PRACTICE
CHARGE UNTIL AFTER AUGUST 19, 1981, WHEN RESPONDENT'S LABOR RELATIONS
SPECIALIST MINTZER WAS DUE TO RETURN. THE UNION, NOT HAVING RECEIVED THE
INFORMATION REQUESTED OR BEING ABLE TO SETTLE THE DISPUTE CONCERNING THE
UNILATERAL CHANGE IN CLUB POLICY, FILED AN UNFAIR LABOR PRACTICE CHARGE
ON AUGUST 27, 1981.
AROUND SEPTEMBER 10, 1981, RESPONDENT FURNISHED THE UNION WITH A COPY
OF COMNAVFORKOREA INSTRUCTION 1710.2F SUBJ. NAVY ENLISTED MESS
(OPEN/NAVY CLUB) AND ASKED FOR THE UNION'S COMMENTS "SINCE YOU DID NOT
PREVIOUSLY HAVE A CHANCE TO REVIEW THIS CHANGE TO THE REGULATION DUE TO
ADMINISTRATIVE ERROR." THE UNION DID NOT PROVIDE COMMENTS BECAUSE IT
WANTED A RETURN TO THE STATUS QUO.
COMNAVFORKOREA INST. 1710.2F DATED APRIL 28, 1981, ESTABLISHED NEW
CRITERIA FOR USAGE OF THE CLUB BY CIVILIAN GRADE LEVEL. /2/ THE PRIOR
REGULATION CONTAINED NO SUCH GRADE LEVEL REQUIREMENTS. /3/ THERE ARE NO
REQUIREMENTS AS TO EXACT GRADES WHO MAY UTILIZE AN ENLISTED MESS. /4/ IN
FACT, THERE IS DISCRETION AS TO WHAT GRADES TO ASSIGN. IN DETERMINING
WHICH GRADES OF CIVILIAN EMPLOYEES COULD UTILIZE THE CLUB, THERE WAS
PREVIOUSLY NO PROHIBITION AGAINST CHOOSING SOME GRADE OTHER THAN GS-6 AS
A CUTOFF POINT.
THE PRACTICE AT THE CLUB PRIOR TO THE IMPLEMENTATION OF
CONMAVFORKOREA INST. 1710.2F DATED APRIL 28, 1981 APPEARS TO BE THAT
CIVILIAN EMPLOYEES OF ANY GRADE COULD USE THE CLUB ANY TIME IT WAS OPEN.
THE REQUIREMENTS AS TO WHO COULD USE THE CLUB WERE NOT POSTED ON THE
CLUB'S BULLETIN BOARD, CIRCULATED AMONG EMPLOYEES, OR OTHERWISE
ENFORCED. THERE IS NO DEFINITION OF "APPROPRIATE GRADES" IN THE MANUAL
FOR MESSES ASHORE.
THE YONGSAN GARRISON CONTAINS APPROXIMATELY EIGHT FULL SERVICE EATING
ESTABLISHMENTS WHICH ARE AVAILABLE TO CIVILIAN EMPLOYEES AFTER 5 P.M.
THERE ARE APPROXIMATELY A TOTAL OF 12 FULL SERVICE EATING ESTABLISHMENTS
AT THE YONGSAN GARRISON (INCLUDING THE CLUB AS WELL AS THE EIGHT
PREVIOUSLY MENTIONED) AVAILABLE FOR EATING AFTER 5 P.M. SOMEWHERE
BETWEEN 20,000 TO 30,000 INDIVIDUALS ARE ELIGIBLE TO USE THESE 12
FACILITIES. THE AVAILABILITY OF CLUB FACILITIES IS CONSIDERED BY SOME
EMPLOYEES TO BE AN IMPORTANT CONSIDERATION IN DECIDING WHETHER TO
CONTINUE THEIR TOUR IN KOREA. IN ANY EVENT, CIVILIAN EMPLOYEES WITHOUT
QUESTION ARE LIMITED IN THE PLACES OFF POST WHERE THEY CAN EAT BECAUSE
OF THE SANITARY CONDITIONS AND HIGH COST OF OFF POST EATING
ESTABLISHMENTS.
DEPARTMENT OF DEFENSE DIRECTIVE 1400.6 ESTABLISHES EMPLOYMENT
POLICIES FOR CIVILIAN EMPLOYEES STATIONED IN AREAS OUTSIDE THE UNITED
STATES. THIS REGULATION STATES IN PERTINENT PART, IN PARAGRAPH 4, AS
FOLLOWS:
IN MAKING A DETERMINATION OF THE NUMBERS AND TYPES OF U.S. EMPLOYEES
FOR OVERSEAS AREAS,
THE MILITARY SERVICE COMMANDER SHALL CONSIDER THE ABILITY OF THE
COMMAND TO ENSURE ADEQUATE
HOUSING; SUBSISTENCE; AND MEDICAL, COMMISSARY, EXCHANGE, LAUNDRY,
TRANSPORTATION AND OTHER
ESSENTIAL FACILITIES AND SERVICES. EXCEPT WHEN REQUIRED TO MEET
UNEXPECTED EMERGENCY
CONDITIONS, AN OVERSEAS COMMANDER SHALL NOT REQUEST RECRUITMENT FROM
THE UNITED STATES UNLESS
THE COMMAND CAN PROVIDE SUCH FACILITIES TO MEET HEALTH AND DECENCY
STANDARDS. /5/
DISCUSSION AND CONCLUSIONS
A. JURISDICTION
RESPONDENT MOVED TO DISMISS THIS MATTER FOR LACK OF JURISDICTION.
RESPONDENT CONTENDS THAT THE COMPLAINT DID NOT NAME THE PROPER
RESPONDENT AND THAT THE PROPER RESPONDENT INDEED SHOULD HAVE BEEN UNITED
STATES NAVAL FORCES KOREA AND NOT THE USFK/EUSA. IN SUPPORT OF ITS
POSITION RESPONDENT ARGUES, IN ESSENCE, THAT THE NAVY ENLISTED MESS
INVOLVED IN THIS MATTER IS OPERATED BY THE NAVY UNDER THE GUIDELINES
ESTABLISHED BY THE MANUAL FOR MESSES ASHORE, AND THAT IF THERE WAS ANY
QUESTION REGARDING THE OPERATION OF THE CLUB THAT IT WOULD PROCEED
THROUGH NAVY CHANNELS THROUGH CIMPAC FLEET TO THE NAVY MILITARY COMMAND
IN WASHINGTON; NOT THROUGH US FORCES NOR EIGHTH US ARMY. RESPONDENT
ALSO ARGUES THAT THE UNION DID NOT HAVE EXCLUSIVE RECOGNITION TO
REPRESENT EMPLOYEES OF THE NAVY SUB-COMPONENT. /6/
THE GENERAL COUNSEL CONTENDS THAT THE U.S. NAVAL FORCES, KOREA IS
MERELY A SUBORDINATE OR OPERATIONAL COMPONENT OF THE UNITED STATES
FORCES/KOREA EIGHTH U.S. ARMY AND THAT INDEED THE FACTS ESTABLISH THE
ADMINISTRATIVE CONTROL OF THE CLUB.
IT IS UNCONTROVERTED THAT THE CLUB IS LOCATED ON THE YONGSAN GARRISON
UNDER THE DIRECT CONTROL OF THE COMMANDER, U.S. FORCES, KOREA. THE
RECORD CLEARLY ESTABLISHED THAT THE OVERSEAS COMMANDER RESPONSIBLE FOR
ALL CIVILIAN EMPLOYEES IN KOREA IS THE COMMANDER, U.S. FORCES, KOREA,
EIGHTH U.S. ARMY. IT IS ALSO UNDISPUTED THAT THE COMMANDER, U.S. FORCES
KOREA HAS AUTHORITY OVER YONGSAN GARRISON AT WHICH THE CLUB IS LOCATED.
IN AGREEMENT WITH THE GENERAL COUNSEL IT IS FOUND THAT THE NAVY'S
LACK OF A BARGAINING RELATIONSHIP WITH THE UNION IS OF LITTLE IMPORT.
THEREFORE IT IS UNNECESSARY TO MAKE A FINDING AS TO WHETHER SUCH A
BARGAINING RELATIONSHIP EXISTS. INTERNAL REVENUE SERVICE, WASHINGTON,
D.C. AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA NO.
37 (1980); VETERANS ADMINISTRATION, 1 FLRA NO. 101 (1979). SEE, ALSO,
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION,
REGION I, AND DEPARTMENT OF HEALTH SERVICES, SOCIAL SECURITY
ADMINISTRATION, REGION I, AND DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, GALVESTON, TEXAS DISTRICT, 10 FLRA NO. 9
(1982). WHILE THE NAVY CLAIMS TO BE A SUBORDINATE ORGANIZATION THERE IS
NO QUESTION THAT IT IS UNDER THE CONTROL OR COMMAND OF THE COMMANDER,
U.S. FORCES KOREA WHEN OPERATING ON THE YONGSAN GARRISON FOR WHICH HE
HAS DIRECT RESPONSIBILITY AND CONTROL. IT IS INCONCEIVABLE THAT SUCH A
CLUB COULD OPERATE IN ISOLATION OR VOID OF THE CONTROL OF THE GARRISON
COMMANDER. ALTHOUGH CERTAIN MATTERS MAY BE PERFORMED PURSUANT TO NAVY
REGULATION, I HAVE NO DOUBT THAT THE COMMANDER WOULD NOT ENTIRELY
RELINQUISH CONTROL OF A COMPONENT ORGANIZATION WITHIN HIS AREA OF
RESPONSIBILITY. EVEN IF THIS WERE NOT SO, THERE IS NO RECORD EVIDENCE
THAT THE CLUB OPERATES INDEPENDENT OF THAT AUTHORITY. IN A SITUATION
SUCH AS THE ONE INVOLVED HEREIN, IT IS MY VIEW THAT THE SUBORDINATE
ORGANIZATION WOULD HAVE TO ESTABLISH ITS COMPLETE INDEPENDENCE.
RESPONDENT HAS ESTABLISHED ONLY THAT THE NAVY OPERATES THE CLUB BY NAVY
RULES. SUCH A SHOWING DOES NOT ESTABLISH THAT IT HAS DISCRETION WITH
RESPECT TO MATTERS AFFECTING CONDITIONS OF EMPLOYMENT FOR CIVILIAN
EMPLOYEES WORKING IN THE COMMAND AND THE AUTHORITY WITH RESPECT TO THOSE
MATTERS IS INDEED VESTED IN THE COMMANDER, U.S. FORCES/KOREA. IN ALL THE
CIRCUMSTANCES, RESPONDENTS MOTION TO DISMISS FOR LACK OF JURISDICTION IS
DENIED.
B. PROHIBITION OF CLUB FACILITIES TO BARGAINING UNIT EMPLOYEES
THE GENERAL COUNSEL MAINTAINS THAT THE REFUSAL OF THE CLUB TO ALLOW
CIVILIAN EMPLOYEES OF ALL GRADES TO ITS USE AT ALL HOURS IS BOTH A
CHANGE OF A PAST PRACTICE AND A UNILATERAL CHANGE OF THE CLUB
REGULATIONS WITHOUT NOTIFICATION TO OR BARGAINING WITH THE UNION IN
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. THE GENERAL
COUNSEL CHARACTERIZES THE ABOVE CHANGE AS SIGNIFICANT.
RESPONDENT, RELYING ON INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
AFL-CIO, LOCAL F-116 AND DEPARTMENT OF THE AIR FORCE, VANDENBERG AIR
FORCE BASE, CALIFORNIA, 7 FLRA 123 (1981), ARGUES THAT THE CLUB DOES NOT
CONSTITUTE A "CONDITION OF EMPLOYMENT" WITHIN THE MEANING OF THE
STATUTE. THE GENERAL COUNSEL SEEKS TO DISTINGUISH THE VANDENBERG CASE,
SUPRA, STATING THAT THE FACILITIES IN THIS MATTER ARE REQUIRED TO BE
PROVIDED TO CIVILIAN EMPLOYEES UNDER DOD DIRECTIVE 14006. AND
FURTHERMORE, CONTENDS THAT THE AVAILABILITY OF EATING FACILITIES AFTER
DUTY HOURS HAS A DIRECT RELATIONSHIP WITH THE EMPLOYMENT OF CIVILIAN
EMPLOYEES IN KOREA. I FAIL TO SEE THIS DISTINCTION.
THE VANDENBERG CASE, SUPRA, INVOLVED A NEGOTIABILITY DETERMINATION OF
A UNION PROPOSAL TO GRANT OFF-DUTY PERSONNEL AND THEIR DEPENDENTS THE
USE OF HUNTING AND FISHING RECREATIONAL RIGHTS ON THE BASE. THE
AUTHORITY, IN DECLARING THE UNION'S PROPOSAL NOT TO BE WITHIN THE DUTY
TO BARGAIN UNDER THE STATUTE HELD:
ON ITS FACE, THE DISPUTED PROPOSAL IN THE PRESENT CASE DOES NOT
CONCERN PERSONNEL POLICIES,
PRACTICES, OR MATTERS AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES.
SIMILARLY, AS TO THE
EFFECT OF THE PROPOSAL, NO RELATIONSHIP BETWEEN THE RECREATIONAL
ACTIVITIES OF OFF-DUTY
EMPLOYEES AND THEIR DEPENDENTS AND EMPLOYMENT AS FIREFIGHTERS AT THE
BASE IS ADVERTED TO BY
THE UNION OR IS OTHERWISE APPARENT. THAT IS, NOTHING IN THE PROPOSAL
ITSELF OR ELSEWHERE IN
THE RECORD BEFORE THE AUTHORITY INDICATES THAT ALLOWING EMPLOYEES AND
THEIR DEPENDENTS TO HUNT
AND FISH AT THE BASE WOULD RELATE TO CONDITIONS OF EMPLOYMENT. IN
PARTICULAR, THE UNION HAS
NOT PROVIDED THE AUTHORITY WITH ANY EXPLANATION AS TO THE INTENT OF
THE PROPOSAL WHICH WOULD
SUPPORT A FINDING THAT SUCH RELATIONSHIP EXISTS.
THEREFORE, IN THE ABSENCE OF ANY DEMONSTRATION IN THE RECORD OF A
DIRECT RELATIONSHIP
BETWEEN THE UNION'S PROPOSAL AND UNIT EMPLOYEES' WORK SITUATIONS OR
EMPLOYMENT RELATIONSHIPS,
THE AUTHORITY MUST FIND THAT THE PROPOSAL DOES NOT CONCERN MATTERS
WHICH ARE 'CONDITIONS OF
EMPLOYMENT' WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE
(FOOTNOTES OMITTED).
THE AUTHORITY'S STANDARD IN THE VANDENBERG CASE FOR DETERMINING
WHETHER OR NOT A PARTICULAR ACTIVITY IS A "CONDITION OF EMPLOYMENT" IS
WHETHER THERE IS A "DIRECT RELATIONSHIP" BETWEEN THE PARTICULAR ACTIVITY
BEING CONSIDERED AND THE UNIT EMPLOYEES' WORK SITUATION OR EMPLOYMENT
RELATIONSHIP. IN THIS MATTER, ALTHOUGH THE USE OF THE CLUB IS INDEED AN
INCIDENT OF EMPLOYMENT FOR CIVILIANS AT YONGSAN IN THAT IT ARISES OUT OF
THE EMPLOYMENT RELATIONSHIP AND GRANTS BENEFITS TO CERTAIN EMPLOYEES, I
SEE NO DIRECT RELATIONSHIP BETWEEN THAT ACTIVITY AND THE EMPLOYMENT
RELATIONSHIP HEREIN. THE GENERAL COUNSEL'S WITNESSES TESTIFIED THAT THEY
WERE NOT ALLOWED TO USE THE CLUB MERELY BECAUSE OF THEIR GRADE LEVEL.
ALTHOUGH EACH USED THE CLUB, IN VARYING DEGREES, THERE IS NO SUGGESTION
THAT THE CLUB WAS THE PRINCIPAL DINING FACILITY FOR EITHER OF THESE
THREE EMPLOYEES OR FOR THAT MATTER, ANY OTHER CIVILIAN EMPLOYEES AT THE
YONGSAN GARRISON. ALTHOUGH IT IS CLEAR THAT EACH USED THE CLUB, THIS WAS
APPARENTLY BECAUSE OF ITS AMBIENCE AND WAS ONLY A PERSONAL PREFERENCE
WHICH DOES NOT ESTABLISH ANY "DIRECT RELATIONSHIP" WITH THE EMPLOYMENT
SITUATION. MOREOVER, OF THE THREE WITNESSES WHO TESTIFIED FOR THE
GENERAL COUNSEL THAT THEY WERE DENIED ADMISSION BECAUSE OF THEIR GS
LEVEL, AT LEAST TWO WERE NOT MEMBERS OF THE BARGAINING UNIT. NOR DID ANY
OF THE GENERAL COUNSEL'S WITNESSES IDENTIFY BARGAINING UNIT MEMBERS WHO
USED THE FACILITY WITH ANY REGULARITY.
EVEN ASSUMING THAT AN EMPLOYMENT RELATIONSHIP EXISTED, THE AUTHORITY
HAS ADOPTED A "SUBSTANTIAL IMPACT" RULE. SEE OFFICE OF PROGRAM
OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN
FRANCISCO REGION, 5 FLRA NO. 45 (1981). THE RECORD HEREIN ESTABLISHES
LITTLE OR NO IMPACT. IT DISCLOSES ONLY THAT TWO OR POSSIBLY THREE
EMPLOYEES WERE PREVENTED FROM USING THE CLUB BECAUSE OF THEIR GS LEVEL,
THUS, RAISING THE IMPACT QUESTION. THE RECORD DOES NOT ESTABLISH REGULAR
USE BY ANY UNIT EMPLOYEES; DOES NOT ESTABLISH THAT ANY OTHER UNIT
EMPLOYEES USED THIS FACILITY WITH ANY DEGREE OF FREQUENCY; OR, THAT ANY
BARGAINING UNIT EMPLOYEES WERE DENIED USE OF THE FACILITY. IN ALL THE
CIRCUMSTANCES OF THE CASE, IT IS UNREASONABLE TO ASSUME ABSENT A SHOWING
THAT BARGAINING UNIT EMPLOYEES WERE DEPRIVED OF USE OF THE CLUB, THAT
THE DENIAL OF USE OF THIS CLUB HAD ANY SUBSTANTIAL IMPACT ON UNIT
EMPLOYEES. FURTHERMORE, NOTING THE NUMBER AND VARIETY OF SUCH FACILITIES
ON THE GARRISON, I FIND LITTLE MERIT IN THE GENERAL COUNSEL'S ARGUMENT
THAT THIS CLUB RELATES TO A CONDITION OF EMPLOYMENT BECAUSE OF THE
"REASONABLE HEALTH AND DECENCY" LANGUAGE OF THE DOD REGULATION. THAT
REGULATION REQUIRES ONLY THAT ESSENTIAL FACILITIES BE PROVIDED. WHILE
ONE CANNOT BE UNMINDFUL THAT FACILITIES SUCH AS THE CLUB ARE NECESSARY
FOR CIVILIAN EMPLOYEE'S IN KOREA, THERE IS NO SHOWING ON THIS RECORD
THAT THE CLUB IS OR WAS AN ESSENTIAL FACILITY AS SET OUT IN THE DOD
REGULATIONS OR THAT IT IS IN ANY WAY INSTRUMENTAL IN RECRUITMENT EFFORTS
FOR CIVILIAN EMPLOYEES TO SERVE IN KOREA. MOREOVER, AS ALREADY NOTED, IT
IS QUESTIONABLE THAT ANY OF THE MEMBERS OF THE BARGAINING UNIT.
ACCORDINGLY, IT IS RECOMMENDED THAT THIS ALLEGATION OF THE COMPLAINT BE
DISMISSED.
C. REFUSAL TO TIMELY SUPPLY INFORMATION
THE GENERAL COUNSEL CONTENDS THAT RESPONDENT FAILED TO TIMELY PROVIDE
INFORMATION CONCERNING THE CLUB REQUESTED BY THE UNION IN A TIMELY
FASHION, IN VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE.
THE FACTS ESTABLISH THAT THE UNION REQUESTED THIS INFORMATION ON SEVERAL
OCCASIONS BEGINNING ABOUT MAY 12, 1981, BUT DID NOT FINALLY RECEIVE THE
INFORMATION FROM RESPONDENT UNTIL SEPTEMBER 10, 1981. THE INFORMATION
REQUESTED RELATED DIRECTLY TO PATRON ELIGIBILITY FOR THE CLUB.
THE REQUEST HEREIN WAS FOR INFORMATION CONTAINED IN A BULLETIN WHICH
WAS POSTED AT THE CLUB CONCERNING THE GRADE LEVELS ALLOWED TO USE THE
CLUB. UNDER ALMOST ANY STANDARD THE INFORMATION WHICH WAS SOUGHT WHILE
THE UNION WAS ATTEMPTING TO NEGOTIATE THE CHANGE IN CLUB POLICY WOULD BE
RELEVANT TO ITS COLLECTIVE BARGAINING OBLIGATIONS.
SINCE IT IS MY VIEW, AS EXPRESSED ABOVE, THAT THE CLUB WAS NOT A
CONDITION OF EMPLOYMENT AND IT FOLLOWS THAT THERE WOULD BE NO OBLIGATION
TO BARGAIN CONCERNING THE MATTER, IT IS MY OPINION, THAT A VIOLATION
BASED ON RESPONDENT'S NOT SUPPLYING THIS INFORMATION IN A TIMELY FASHION
WOULD NOT EFFECTUATE THE PURPOSES OF THE STATUTE. ACCORDINGLY, IT IS
RECOMMENDED THAT THESE PORTIONS OF THE COMPLAINT BE DISMISSED.
IN LIGHT OF THE ABOVE, IT IS FOUND THAT RESPONDENT DID NOT VIOLATE
SECTION 7116(A)(1), (5) AND (8) BY UNILATERALLY CHANGING THE GRADE
LEVELS ALLOWED TO USE THE CLUB OR BY REFUSING TO TIMELY SUPPLY CERTAIN
INFORMATION. NOR DID ANY OF RESPONDENT'S ACTIONS CONSTITUTE AN
INDEPENDENT VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE. THEREFORE,
IT IS RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED.
ORDER
IT IS HEREBY ORDERED, THAT THE COMPLAINT IN CASE NO. 8-CA-1267, BE,
AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
/1/ WILSON TESTIFIED HE USED THE CLUB APPROXIMATELY ONCE A MONTH AT
NIGHT. HE ALSO STATED A NUMBER OF HIS CO-WORKERS USED THE CLUB. NO
MENTION IS MADE, ON THE RECORD, AS TO THE GRADE LEVEL OF WILSON'S
CO-WORKERS OR THE FREQUENCY OF THEIR USE. NEITHER IS THERE ANY RECORD
EVIDENCE THAT THE CO-WORKERS ALLUDED TO IN TESTIMONY WERE DENIED USE OF
THE CLUB BECAUSE OF THEIR GS LEVEL.
/2/ COMNAVFORKOREA INSTRUCTION 1710.2F DATED APRIL 28, 1981, PROVIDES
IN PARAGRAPH 5(C) AS FOLLOWS:
5. PATRONAGE. THE PRIVILEGES OF THE MESS ARE ROUTINELY EXTENDED TO
ALL U.S. ENLISTED
PERSONNEL ASSIGNED TO THE SEOUL AREA IN ACCORDANCE WITH REFERENCE (A)
(MANUAL FOR MESSES
ASHORE (NAVPERS 15951 CH 12)). THERE ARE NO MEMBERSHIP CARDS,
MEMBERSHIP DUES, OR GUEST CARDS
FOR THE ENLISTED MESS/NAVY CLUB. AUTHORIZED PATRONS ARE . . .
C. U.S. CIVIL SERVICE PERSONNEL AND INVITED CONTRACTORS IN GRADES
CONSIDERED EQUIVALENT TO
ENLISTED PAY GRADES E-1 THROUGH E-9 (GS 6 AND BELOW).
/3/ COMNAVFORKOREA INSTRUCTION 1710.2E DATED 20 JUNE 1979 WHICH WAS
REPLACED BY THE INSTRUCTION DATED APRIL 28, 1981, PROVIDED IN RELEVANT
PART AT PARAGRAPH 5(E) AS FOLLOWS:
5. PATRONAGE. THE PRIVILEGES OF THE MESS ARE ROUTINELY EXTENDED TO
ALL U.S. ENLISTED
PERSONNEL ASSIGNED TO THE SEOUL AREA IN ACCORDANCE WITH REFERENCE (A)
(MANUAL FOR MESSES
ASHORE (NAVPERS 15951)), AND IN KEEPING WITH THE CUSTOMS FOLLOWED AT
LOCAL ENLISTED MESSES OF
OTHER U.S. SERVICES . . .
E. IN KEEPING WITH LOCAL POLICIES AND CUSTOMS, OFFICERS, CIVILIAN
EMPLOYEES, AND
DOD-CONTRACT EMPLOYEES ARE AUTHORIZED TO USE THE MESS DURING THE WEEK
PRIOR TO 1700 WITHOUT
BEING ACCOMPANIED BY A MEMBER OF THE MESS. HOWEVER AFTER 1700 OR ON
WEEKENDS AND HOLIDAYS,
SUCH PERSONNEL MUST BE CONSIDERED IN THE SAME CATEGORY AS GUESTS.
/4/ THE MANUAL FOR MESSES ASHORE (NAVPERS 15951) PROVIDES IN
PERTINENT PART AT SECTION 902(A)(3) AS FOLLOWS:
IF THE FACILITIES OF THE MESSES PERMIT, PRIVILEGES MAY ALSO BE
EXTENDED AS FOLLOWS:
(3) IN ALASKA AND OUTSIDE THE UNITED STATES, TO APPROPRIATE GRADES OF
GOVERNMENT CIVILIAN
EMPLOYEES (U.S. CITIZENS, RECRUITED IN THE UNITED STATES ONLY, NOT
NATIONALS) HAVING PERMANENT
STATION IN ALASKA OR OUTSIDE THE UNITED STATES.
/5/ UNC/USFK/EA CIVILIAN PERSONNEL REGULATION 690-4 DESCRIBES
ENTITLEMENTS OF CIVILIAN EMPLOYEES IN KOREA.
/6/ RESPONDENTS ARGUMENT THAT THE UNION HAS NOT BEEN CERTIFIED TO
REPRESENT USFK IS MINIMIZED BY THE FACT THAT THE UNION'S PRESIDENT IS A
NAVY DEPARTMENT EMPLOYEE AND IS A MEMBER OF THE BARGAINING UNIT.
JOSEPH SWERDZEWSKI, ESQ., FOR THE GENERAL COUNSEL
MR. DON C. TERRILL, FOR THE CHARGING PARTY
MAJOR VINCENT C. NEALEY, FOR THE RESPONDENT 770801 0000700
22 FLRA-ALJ; CASE NO. 5-CA-1204 SEPTEMBER 16, 1982
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER, CHICAGO, ILLINOIS,
RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1395,
AFL-CIO, CHARGING PARTY
BEFORE: SAMUEL A. CHAITOVITZ, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING ARISING UNDER THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
7101, ET SEQ., 92 STAT. 1191 (HEREINAFTER REFERRED TO AS THE STATUTE)
AND THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
(FLRA), 5 C.F.R.CHAPTER XIV, 2410 ET SEQ.
A CHARGE WAS FILED ON JUNE 26, 1981 BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1395, AFL-CIO (HEREINAFTER CALLED THE UNION
AND/OR LOCAL 1395 AFGE) AGAINST DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER,
CHICAGO, ILLINOIS (HEREINAFTER CALLED RESPONDENT). /1/ PURSUANT TO THE
ABOVE DESCRIBED CHARGE THE GENERAL COUNSEL OF THE FLRA, BY THE DIRECTOR
OF REGION 5, ISSUES A COMPLAINT AND NOTICE OF HEARING ON AUGUST 28, 1981
ALLEGING THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE
STATUTE BY INTERFERING WITH THE UNION DESIGNATION OF ITS REPRESENTATIVE.
RESPONDENT FILED AN ANSWER DENYING THAT IT HAD VIOLATED THE STATUTE.
A HEARING IN THIS MATTER WAS HELD BEFORE THE UNDERSIGNED IN CHICAGO,
ILLINOIS. THE GENERAL COUNSEL OF THE FLRA, THE RESPONDENT AND LOCAL 1395
AFGE WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE AND TO ARGUE
ORALLY. POST HEARING BRIEFS WERE FILED AND HAVE BEEN FULLY CONSIDERED.
BASED UPON THE ENTIRE RECORD /2/ IN THIS MATTER, UPON MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, AND UPON MY EVALUATION OF THE
EVIDENCE, I MAKE THE FOLLOWING:
FINDINGS OF FACT
ON AUGUST 30, 1979, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (HEREINAFTER CALLED AFGE), WAS CERTIFIED AS THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE FOR A CONSOLIDATED NATIONWIDE UNIT
COMPOSED OF SSA'S PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES, WITH
CERTAIN EXCLUSIONS. THIS UNIT INCLUDES BENEFIT AUTHORIZERS AND
DISABILITY EXAMINERS EMPLOYED BY RESPONDENT. /3/ PRIOR TO THE ABOVE
DESCRIBED CONSOLIDATION, /4/ THE BUREAU OF RETIREMENT AND SURVIVORS
INSURANCE OF THE SOCIAL SECURITY ADMINISTRATION HAD RECOGNIZED AFGE
(NATIONAL COUNSEL OF SOCIAL SECURITY PAYMENT CENTER LOCALS) AS THE
COLLECTIVE BARGAINING REPRESENTATIVE FOR A NATIONWIDE UNIT COMPOSED OF
ALL NON-SUPERVISORY EMPLOYEES, INCLUDING PROFESSIONALS, IN THE PROGRAM
SERVICE CENTERS. THE BUREAU OF RETIREMENT AND SURVIVORS INSURANCE AND
AFGE HAD ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT PRIOR TO THE
CONSOLIDATION.
ARTICLE 4 OF THE AGREEMENT, ENTITLED, "RIGHTS OF THE UNION" PROVIDES
IN SECTION (A):
THE BUREAU AND/OR THE PROGRAM SERVICE CENTER SHALL NOT IMPOSE ANY
RESTRAINT, INTERFERENCE,
COERCION, OR DISCRIMINATION AGAINST THE DESIGNATED REPRESENTATIVES OF
THE COUNCIL OR THE
DESIGNATED REPRESENTATIVES OF THE LOCAL IN THE RESPONSIBLE EXERCISE
OF THEIR RIGHT TO SERVE AS
REPRESENTATIVES FOR PURPOSE OF COLLECTIVE BARGAINING, HANDLING
GRIEVANCES AND APPEALS,
FURTHERING EFFECTIVE LABOR-MANAGEMENT RELATIONSHIPS, OR ACTING ON
BEHALF OF AN EMPLOYEE OR
GROUP OF EMPLOYEES WITHIN THE BARGAINING UNIT.
ARTICLE 11(C) OF THE AGREEMENT PROVIDES:
IT IS AGREED THAT THE LOCAL WILL NOT INVITE OR MEET WITH PERSONS NOT
EMPLOYED BY THE
BUREAU, COUNCIL, OR NATIONAL UNION ON PROGRAM SERVICE CENTER PREMISES
WITHOUT PRIOR APPROVAL
OF THE PROGRAM SERVICE CENTER.
AFTER THE NATIONWIDE CONSOLIDATION OF UNITS, AFGE AND SSA ENTERED
INTO NEGOTIATIONS FOR A NATIONWIDE AGREEMENT. IT WAS APPARENTLY AGREED
THAT DURING NEGOTIATIONS EXISTING COLLECTIVE BARGAINING AGREEMENTS WOULD
CONTINUE IN EFFECT. THUS, AT ALL TIMES MATERIAL HEREIN, THE AGREEMENT
QUOTED ABOVE, COVERING THE PROGRAM CENTERS, WAS IN EFFECT.
ON MAY 4, 1981, AT 9:00 A.M., THE 42 EMPLOYEES OF RESPONDENT'S MODULE
28 ATTENDED A MEETING WITH RICHARD FUNK AND ANN MARIE KLAPRAT OF
RESPONDENT'S PROGRAM INTEGRITY STAFF, MODULE MANAGER JOYCE STORY AND
SECTION CHIEF BURNELL. FUNK ADVISED THE MODULE 28 EMPLOYEES THAT THERE
WAS EVIDENCE INDICATING THAT OFFICIAL DOCUMENTS WERE BEING DESTROYED AND
DISCARDED IN THAT OFFICE AND THAT EMPLOYEES WHO DESTROYED AND DISCARDED
THE DOCUMENTS COULD LOSE THEIR JOBS AND FACE POSSIBLE CRIMINAL
PROSECUTION. FUNK ADVISED THE EMPLOYEES THAT THEY HAD A RIGHT TO BE
REPRESENTED BY A UNION REPRESENTATIVE, OR AN ATTORNEY OR OTHER
REPRESENTATIVE AND TO REMAIN SILENT.
UNION EXECUTIVE VICE PRESIDENT MARK ZALTMAN WAS EMPLOYED IN MODULE 28
AND ATTENDED THE MAY 4TH MEETING. AFTER THE MEETING ZALTMAN DISCUSSED
THE INVESTIGATION WITH UNION PRESIDENT DONALD JONES AND THEY DECIDED
THAT UNION VICE PRESIDENT CHANON WILLIAMS SHOULD ACT AS THE UNION
REPRESENTATIVE OF THE EMPLOYEES OF MODULE 28. CHANON WILLIAMS WAS A
MEMBER OF THE NATIONWIDE CONSOLIDATED COLLECTIVE BARGAINING UNIT BUT WAS
NOT EMPLOYED IN THE PROGRAM SERVICE CENTER AND THEREFORE WAS APPARENTLY
NOT "EMPLOYED BY THE BUREAU" WITHIN THE MEANING OF ARTICLE 11(C) OF THE
LOCAL AGREEMENT. DURING THE LUNCHEON AND AFTERNOON BREAK ON MAY 4, 1981,
AND DURING THE MORNING BREAK ON MAY 5, 1981, ZALTMAN CIRCULATED TO
MODULE 28 EMPLOYEES AUTHORIZATION FORMS WHICH DESIGNATED WILLIAMS AS THE
EMPLOYEES' UNION REPRESENTATIVE. APPROXIMATELY 34 OF THE FORMS /5/ WERE
SIGNED BY EMPLOYEES OF MODULE 28. AT ABOUT 10:20 A.M. ON MAY 5, 1981,
ZALTMAN GAVE THESE FORMS TO FUNK. FUNK GAVE THE FORMS TO DION BROWN,
STAFF ASSISTANT TO THE DIRECTOR OF THE FACILITY, WHO IN TURN GAVE THEM
TO ED DAVIS, LABOR RELATIONS SPECIALIST OF THE GREAT LAKES PROGRAM
SERVICE CENTER, AT ABOUT 11:15 A.M.
AT ABOUT 11:30 A.M. ON MAY 5, 1981 DAVIS CALLED A MEETING OF THE
EIGHT BENEFIT AUTHORIZES IN MODULE 28, INCLUDING ZALTMAN, AND ADVISED
THEM THAT WILLIAMS COULD NOT ACT AS THEIR UNION REPRESENTATIVE BECAUSE
SHE DID NOT WORK IN THEIR OFFICE. DAVIS STATED, HOWEVER, THAT WILLIAMS
COULD SERVE AS THEIR PERSONAL REPRESENTATIVE. ZALTMAN ADVISED THE
EMPLOYEES THAT THE UNION DISAGREED AND THAT RESPONDENT WAS TRYING TO
EXCLUDE WILLIAMS BECAUSE SHE WAS AN ATTORNEY. DAVIS AGAIN ADVISED THE
EMPLOYEES THAT WILLIAMS COULD BE THEIR PERSONAL REPRESENTATIVE, BUT SHE
COULD NOT ACT AS A UNION REPRESENTATIVE.
FOLLOWING THE MAY 5 MEETING ZALTMAN DELIVERED A LETTER WRITTEN BY
JONES TO ACTING DIRECTOR OF THE PROGRAM CENTER, CLAIR POAD, WITH A COPY
GOING TO DAVIS, WHICH ADVISED POAD THAT THE UNION CONSIDERED THE
RESPONDENT'S POSITION THAT WILLIAMS COULD NOT REPRESENT THE EMPLOYEES AS
A UNION REPRESENTATIVE, TO BE AN UNFAIR LABOR PRACTICE. AT NO TIME WERE
THE EMPLOYEES OR THE UNION ADVISED THAT CHANON WILLIAMS COULD REPRESENT
THE EMPLOYEES AS THEIR UNION REPRESENTATIVE. /6/
DURING THE AFTERNOON OF MAY 5, ONE MODULE 28 BENEFIT AUTHORIZER WAS
INTERVIEWED BY THE PROGRAM INTEGRITY STAFF. THAT EMPLOYEE WAS
REPRESENTED BY WILLIAMS, BUT, APPARENTLY AS THE EMPLOYEE'S INDIVIDUAL
REPRESENTATIVE. /7/ NO OTHER MODULE 28 EMPLOYEE WISHES TO SPEAK TO THE
INVESTIGATORS AND TWELVE EMPLOYEES WHO HAD BEEN SCHEDULED FOR INTERVIEWS
NOTIFIED RESPONDENT, IN WRITING, THAT THEY DID NOT WANT TO BE
INTERVIEWED. ACCORDINGLY, NO OTHER MODULE 28 EMPLOYEES WERE INTERVIEWED.
DISCUSSION AND CONCLUSIONS
SECTION 7114(A)(2)(B) OF THE STATUTE PROVIDES:
"SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
"(A)(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
AGENCY SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
* * * *
"(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE
OF THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF--
"(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY
ACTION AGAINST THE EMPLOYEE; AND
"(II) THE EMPLOYEE REQUESTS REPRESENTATION."
WHATEVER ELSE THIS SECTION PROVIDES AND WHATEVER OTHER RIGHTS IT MAY
GRANT, ITS LANGUAGE SPECIFICALLY PROVIDES THAT "AN EXCLUSIVE
REPRESENTATIVE . . . SHALL BE GIVEN AN OPPORTUNITY TO BE REPRESENTED .
. . " AT AN INVESTIGATIVE INTERVIEW OF AN EMPLOYEE WHEN CERTAIN
CONDITIONS ARE MET. /8/ THERE IS NO REAL DISPUTE THAT THE SUBJECT CASE
INVOLVES AN EXAMINATION OF EMPLOYEES IN CONNECTION WITH AN INVESTIGATION
WHERE THE EMPLOYEES REASONABLY BELIEVED THAT DISCIPLINARY ACTION COULD
RESULT. FURTHER, THE RECORD CLEARLY ESTABLISHES THAT 34 EMPLOYEES OF
MODULE 28 DESIGNATED A UNION REPRESENTATIVE, CHANON WILLIAMS, TO
REPRESENT THEM. THUS, ALL OF THE REQUIREMENTS PRESCRIBED BY SECTION
7114(A)(2)(B) OF STATUTE HAD BEEN MET AND, ACCORDINGLY, THE UNION HAD A
RIGHT TO BE REPRESENTED BY ITS DESIGNEE, WILLIAMS, AT THE EMPLOYEE
INTERVIEWS. /9/ BY ADVISING THE EMPLOYEES OF MODULE 28 AND UNION
OFFICIAL ZALTMAN, THAT WILLIAMS COULD NOT ACT AS THE EMPLOYEES' UNION
REPRESENTATIVE AT THE INTERVIEWS, RESPONDENT INTERFERED WITH THE UNION'S
RIGHT, PROVIDED IN SECTION 7114(A)(2)(B) OF THE STATUTE, TO BE
REPRESENTED AT THE INTERVIEWS. IT IS WELL ESTABLISHED THAT IN SUCH A
SITUATION THE UNION WAS ENTITLED TO CHOOSE AND DESIGNATE ITS OWN
REPRESENTATIVE, AND THAT WHEN RESPONDENT INTERFERED WITH THIS RIGHT OF
CHOICE IT VIOLATED SECTIONS 7116(A)(5) AND (1) OF THE STATUTE. CF.
PHILADELPHIA NAVAL SHIPYARD, 4 FLRA NO. 38 (1980); SEE ALSO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. AIR FORCE, AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 4 FLRA
NO. 39 (1980). ADDITIONALLY DAVIS' UNLAWFUL STATEMENT TO THE EMPLOYEES
NECESSARILY UNDERMINED THE UNION'S REPRESENTATIVE STATUS WITH THE
EMPLOYEES AND THUS VIOLATED SECTION 7116(A)(1) OF THE STATUTE.
RESPONDENT ARGUES THAT BECAUSE THE UNION, ON MAY 5, 1981, ADVISED
RESPONDENT THAT THE UNION CONSIDERED DAVIS' MAY 5 STATEMENT TO BE AN
UNFAIR LABOR PRACTICE AND BECAUSE THE RESPONDENT THEN, ALLEGEDLY,
CHANGED ITS POSITION, THE UNION WAS ESTOPPED FROM FILING THE SUBJECT
UNFAIR LABOR PRACTICE CHARGE. RESPONDENT'S POSITION IS REJECTED. IT IS
CONCLUDED, AS SET FORTH IN THE FINDINGS OF FACT, THAT DAVIS DID NOT CALL
THE UNION AND ADVISE THE UNION THAT WILLIAMS COULD BE THE UNION'S
REPRESENTATIVE. HOWEVER, EVEN IF RESPONDENT HAD SO ADVISED THE UNION, IT
WOULD NOT HAVE ESTOPPED THE UNION FROM FILING THE SUBJECT UNFAIR LABOR
PRACTICE CHARGE. RESPONDENT URGES THAT, IN THE PAST, WHEN THE UNION FELT
RESPONDENT HAD COMMITTED AN UNFAIR LABOR PRACTICE, THE UNION SO ADVISED
RESPONDENT, AND, IF RESPONDENT REMEDIED THE SITUATION, THE UNION DID NOT
FILE AN UNFAIR LABOR PRACTICE CHARGE. RESPONDENT THEREFORE CONTENDS
THAT, IN THE SUBJECT CASE, BECAUSE RESPONDENT HAD "REMEDIED" THE
SITUATION AFTER THE UNION'S MAY 5 LETTER, THE UNION WAS ESTOPPED FROM
FILING THE SUBJECT CHARGE. SUCH A POSITION IS REJECTED. THE AUTHORITY'S
RULES AND REGULATIONS PROVIDE THE MEANS FOR THE SETTLEMENT OF CASES, 5
C.F.R. 2423.11, AND THE SUBJECT SITUATION DOES NOT COMPLY WITH ANY OF
THESE PROCEDURES. IN ADDITION THE UNION HAS AT NO TIME CLEARLY AND
UNMISTAKABLY WAIVED ITS STATUTORY RIGHT TO FILE AN UNFAIR LABOR PRACTICE
CHARGE IN THE SUBJECT SITUATION. SEE DEPARTMENT OF THE AIR FORCE, SCOTT
AIR FORCE BASE, ILLINOIS, 5 FLRA NO. 2 (1981); SOCIAL SECURITY
ADMINISTRATION, MID-AMERICA SERVICE CENTER, KANSAS CITY, MISSOURI, 9
FLRA 229 (1982). FINALLY, AS NOTED ABOVE, RESPONDENT DID NOT REMEDY THE
SUBJECT UNFAIR LABOR PRACTICE.
RESPONDENT URGES THAT ARTICLE 11(C) OF THE COLLECTIVE BARGAINING
AGREEMENT CONSTITUTES A LIMITATION ON THE UNION'S RIGHT TO NAME ITS OWN
REPRESENTATIVE. RESPONDENT MISREADS ARTICLE 11(C). ARTICLE 11(C)
PROVIDES THAT THE "LOCAL WILL NOT INVITE . . . PERSONS NOT EMPLOYED BY
THE BUREAU . . . ON PROGRAM SERVICE CENTER PREMISES WITHOUT PRIOR
APPROVAL. . . . " HOWEVER, WILLIAMS "IS" THE "LOCAL." ARTICLE 11(C)
DOESN'T LIMIT THE LOCAL'S REPRESENTATIVES, IT LIMITS "PERSONS" THE
"LOCAL" CAN INVITE. WILLIAMS WAS THE LOCAL, SHE WAS NOT INVITING ANY
OTHER PERSONS ON THE PREMISES. IN ANY EVENT, ARTICLE 11(C), AS WRITTEN,
DOES NOT CONSTITUTE A CLEAR AND UNMISTAKABLE WAIVER OF THE UNION'S RIGHT
TO PICK ITS OWN REPRESENTATIVES. SEE DEPARTMENT OF THE AIR FORCE, SCOTT
AIR FORCE BASE, ILLINOIS, SUPRA, AND SOCIAL SECURITY ADMINISTRATION,
MID-AMERICA SERVICE CENTER, KANSAS CITY, MISSOURI, SUPRA. ACCORDINGLY
RESPONDENT'S CONTENTION THAT ARTICLE 11(C) CONSTITUTES A PARTIAL WAIVER
OF THE UNION'S RIGHT TO CHOOSE ITS REPRESENTATIVES, IS REJECTED.
FINALLY, IT CAN NOT BE CONCLUDED, AS RESPONDENT URGES, THAT
RESPONDENT'S STATEMENT TO EIGHT EMPLOYEES, WHICH INTERFERED WITH THE
UNION'S RIGHT TO CHOOSE ITS OWN REPRESENTATIVE, IS A DE MINIMIS
VIOLATION OF THE STATUTE.
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS 7116(A)
(1) AND (5) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE
FOLLOWING:
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 DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM SERVICE
CENTER, CHICAGO, ILLINOIS, SHALL:
(1) CEASE AND DESIST FROM:
(A) INTERFERING WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1395, AFL-CIO,
NAMING CHANON WILLIAMS, OR ANY OTHER PERSONS, AS ITS REPRESENTATIVE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RETRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT THE GREAT LAKES PROGRAM SERVICE CENTER, COPIES OF THE
ATTACHED NOTICE OF FORMS
TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY AN APPROPRIATE OFFICIAL OF THE RESPONDENT AND
SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION V. 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.
/1/ THE SOCIAL SECURITY ADMINISTRATION WILL HEREINAFTER BE CALLED
SSA.
/2/ THE TRANSCRIPT OF THE HEARING IS CORRECTED IN THE FOLLOWING
PARTICULARS:
PAGE LINE FROM TO
9 13 & THEREINAFTER NODULE MODULE 9 20 SHANNON WILLIAMS CHANON
WILLIAMS
29 6 MIKSA CLARY
/3/ AT ALL TIMES MATERIAL HEREIN LOCAL 1395 AFGE HAS BEEN THE AGENT
FOR AFGE FOR DEALING WITH RESPONDENT.
/4/ SINCE JUNE 10, 1969.
/5/ THE FORM STATED:
TO WHOM IT MAY CONCERN:
I HEREBY AUTHORIZE AFGE LOCAL 1395 UNION OFFICIAL CHANON WILLIAMS TO
REPRESENT ME IN THE
MATTER REGARDING ALLEGED MISSING MATERIAL FROM THE PROGRAM SERVICE
CENTER OPERATION.
ALSO, I AUTHORIZE MY REPRESENTATIVE TO EXAMINE AND RECEIVE COPIES OF
ANY OFFICIAL DOCUMENT,
PERSONNEL RECORDS OR MEDICAL INFORMATION WHICH MAY BE RELEVANT TO
THIS MATTER.
/6/ DAVIS TESTIFIED THAT AT ABOUT 12:00 OR 12:30 P.M., AFTER
CONSIDERING THE UNION'S LETTER, HE CALLED THE UNION OFFICE AND ADVISED
EITHER ZALTMAN OR JONES THAT HE, DAVIS, HAD CHANGED HIS MIND THAT
WILLIAMS COULD ACT AS THE UNION REPRESENTATIVE. DAVIS COULD NOT RECALL
WHETHER HE SPOKE TO JONES OR ZALTMAN. BOTH JONES AND ZALTMAN DENY
RECEIVING SUCH A CALL. WITH RESPECT TO THIS INCIDENT I CREDIT JONES AND
ZALTMAN BECAUSE THEIR RECOLLECTIONS APPEAR MORE RELIABLE AND ACCURATE
AND MORE CONSISTENT WITH SURROUNDING CIRCUMSTANCES THAN DAVIS'.
/7/ IN THIS REGARD IT IS NOTED THAT NO OFFICIAL OF RESPONDENT ADVISED
EITHER WILLIAMS OR THE EMPLOYEE THAT WILLIAMS COULD ACT AS THE
EMPLOYEE'S UNION REPRESENTATIVE. THE EMPLOYMENT RECORDS INDICATE,
HOWEVER, THAT WILLIAMS HAD BEEN SIGNED OUT ON OFFICIAL TIME TO PERFORM
UNION BUSINESS.
/8/ WHETHER SECTION 7114(A)(2)(B) OF THE STATUTE MAY ALSO GRANT A
RIGHT TO EMPLOYEES TO BE REPRESENTED NEED NOT BE REACHED IN THIS CASE.
/9/ IN THIS REGARD IT IS NOTED THAT THE EMPLOYEE AUTHORIZATIONS
SPECIFICALLY STATED THAT THE EMPLOYEE AUTHORIZED "AFGE LOCAL 1395 UNION
OFFICIAL CHANON WILLIAMS" TO REPRESENT THE EMPLOYEE. FURTHER THESE
AUTHORIZATIONS WERE PRESENTED TO RESPONDENT BY ZALTMAN, A VICE PRESIDENT
OF THE UNION, AND WILLIAMS WAS A UNION VICE PRESIDENT. FURTHER WHEN
DAVIS ADVISED THE EMPLOYEES THAT WILLIAMS COULD NOT BE THEIR UNION
REPRESENTATIVE, HE DID NOT STATE THAT IT WAS BECAUSE WILLIAMS HAD NOT
BEEN SO DESIGNATED BY THE UNION. RATHER, IT IS CLEAR, WILLIAMS HAD BEEN
SO DESIGNATED AND RESPONDENT'S CONTENTION THAT SHE HAD NOT BEEN SO
DESIGNATED IS DISINGENUOUS AND IS REJECTED.
CHARLES R. PROCK. ESQ.
GREGORY A. MIKSA, ESQ., FOR GENERAL COUNSEL OF FLRA
G. EDWARD DAVIS, ESQ.
ANN SNEIG, ESQ.
L. J. CLARY, ESQ., FOR RESPONDENT
MARK ZALTMAN, FOR CHARGING PARTY
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 AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395, AFL-CIO, NAMING CHANON WILLIAMS, OR ANY OTHER
PERSON, AS ITS REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE
STATUTE.
. . . (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 V,
WHOSE ADDRESS IS: 175 WEST JACKSON BOULEVARD, SUITE A-1359, CHICAGO,
ILLINOIS, 60604, AND WHOSE TELEPHONE NUMBER IS: (312) 886-3468. 770801
0000690
22 FLRA-ALJ; CASE NO. 5-CA-1102 SEPTEMBER 30, 1982
VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA,
RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669,
AFL-CIO, CHARGING PARTY
BEFORE: JOHN H. FENTON, CHIEF ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.), AND THE FINAL RULES AND
REGULATIONS ISSUED THEREUNDER (5 C.F.R. 2423.14 ET SEQ.) IT IS BASED ON
A COMPLAINT ISSUED BY THE ACTING REGIONAL DIRECTOR OF REGION V, FEDERAL
LABOR RELATIONS AUTHORITY, ALLEGING THAT RESPONDENT VIOLATED 5 U.S.C.
7116(A)(1) AND (5) BY ISSUING A MEMORANDUM ON APRIL 10, 1981, "WHICH
UNILATERALLY IMPLEMENTED A CHANGE IN OVERTIME POLICY IN THE OPERATING
ROOM, WARDS 4A WEST AND 6B, INTER ALIA, WITHOUT NOTICE TO THE LOCAL
UNION AND WITHOUT AN OPPORTUNITY TO BARGAIN BEING AFFORDED TO THE LOCAL
UNION CONCERNING THE IMPACT AND IMPLEMENTATION THEREOF."
A FORMAL HEARING WAS HELD IN MINNEAPOLIS, MINNESOTA ON SEPTEMBER 17,
1981. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES,
INTRODUCE EVIDENCE AND TO FILE BRIEFS. UPON THE ENTIRE RECORD, INCLUDING
MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDED ORDER.
FINDINGS OF FACT
1. LOCAL 3669 REPRESENTS SOME 400 REGISTERED NURSES AT THE VA MEDICAL
CENTER IN MINNEAPOLIS. THE COLLECTIVE BARGAINING AGREEMENT IN EFFECT AT
MATERIAL TIMES PROVIDED THAT RESPONDENT WOULD FURNISH THE LOCAL UNION
WITH "AN OPPORTUNITY TO DISCUSS AND NEGOTIATE PRIOR TO IMPLEMENTING ANY
EMPLOYER-INITIATED CHANGES IN PERSONNEL POLICIES, PRACTICE AND MATTERS
AFFECTING WORKING CONDITIONS . . .", AND FURTHER, THAT IT WOULD "SEND TO
THE UNION A DRAFT OF EACH EMPLOYER POLICY OR OTHER SIMILAR DOCUMENT
PRIOR TO IMPLEMENTATION WHICH MAY AFFECT THE PERSONNEL POLICIES,
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS OF . . . EMPLOYEES."
2. PRIOR TO THE EVENTS AT ISSUE, RESPONDENT HAD ISSUED THE FOLLOWING
MEMORANDA ON THE SUBJECT OF OVERTIME.
(A) A MEMORANDUM OF FEBRUARY 14, 1977 FROM CHIEF OF PERSONNEL SERVICE
TO ALL REGISTERED NURSES, NURSE ANESTHETISTS AND GRADUATE NURSE
TECHNICIANS, PROVIDING THAT ELIGIBILITY FOR OVERTIME REQUIRES THAT IT BE
OFFICIALLY ORDERED OR APPROVED, AND OF AT LEAST 15 MINUTES' DURATION.
(B) A MEMORANDUM OF JULY 22, 1977 TO ALL SUPERVISORS, SETTING FORTH
VA POLICY ON OVERTIME AND THE PROCEDURE FOR REQUESTING IT. ITS EXPRESSED
PURPOSE WAS TO PREVENT THE USE OF OVERTIME AS A RECURRING PRACTICE,
I.E., TO KEEP IT TO AN ABSOLUTE MINIMUM. PRIOR APPROVAL OF OVERTIME WAS
NOT REQUIRED IN "LEGITIMATE EMERGENCY SITUATIONS," /1/ BUT THE VA FORM
REQUESTING APPROVAL OF OVERTIME HAD TO BE SUBMITTED BY THE SERVICE
OFFICIAL TO THE ASSISTANT HOSPITAL DIRECTOR WITHIN 24 HOURS. PRIOR
APPROVAL OF THE ASSISTANT HOSPITAL DIRECTOR WAS TO BE SECURED IN ALL
OTHER OVERTIME CASES.
(C) A JUNE 11, 1979 MEMO FROM THE CENTER DIRECTOR TO ALL SUPERVISORS,
REMINDING THEM OF THEIR GENERAL RESPONSIBILITY TO AVOID UNNECESSARY
OVERTIME, AND TO OBTAIN PROPER AUTHORIZATION OF OVERTIME BEFORE
PERMITTING OR REQUIRING ITS PERFORMANCE.
3. HOWEVER RIGIDLY MANAGEMENT MAY HAVE ADHERED TO THE SEEMINGLY
IMPOSSIBLE POLICY OF REQUIRING PRIOR APPROVAL OF ALL NON-EMERGENCY
OVERTIME BY THE ASSISTANT HOSPITAL DIRECTOR, IT IS CLEAR THAT THERE WAS
A GRADUAL AND PARTIAL RELAXATION OF ITS PRACTICE BEGINNING IN AUGUST OF
1979. THE CHANGE WAS CAUSED BY SEVERE STAFF SHORTAGES, AND IT CENTERED
IN THE OPERATING ROOM, THE MEDICAL AND SURGICAL WARDS AND THE VARIOUS
INTENSIVE CARE UNITS. /2/ THE PRESSURES AND PROBLEMS GENERATED BY THE
UNDERSTAFFING MANIFESTED THEMSELVES MOST ACUTELY IN THOSE AREAS, WHERE
MORE EMERGENCIES (OR ARGUABLE EMERGENCIES) AROSE AND WHERE THE WORK WAS
NOT SO ROUTINE AND REGULARIZED AS IT WAS, FOR EXAMPLE, IN A CLINIC.
DISCUSSIONS ENSUED BETWEEN OFFICIALS OF THE LOCAL AND YVONNE MOODY,
CHIEF OF NURSING SERVICE, ABOUT THE PROBLEM, AND MOODY ATTEMPTED TO
FACILITATE THE USE OF OVERTIME BY ELIMINATING DELAYS OCCASIONED BY THE
REQUIREMENT THAT THE HEAD NURSE IN A WARD SEEK APPROVAL OF REQUESTED
OVERTIME AT SOME HIGHER LEVEL IN THE SUPERVISORY HIERARCHY. SHE
PERMITTED THE HEAD OR CHARGE /3/ NURSE TO APPROVE OVERTIME IN THE
OPERATING ROOM, MEDICAL AND SURGICAL WARDS AND INTENSIVE CARE UNITS. IT
WAS CLEARLY NOT HER PURPOSE TO PERMIT STAFF NURSES TO EXERCISE THEIR OWN
JUDGEMENT AS TO THE NEED FOR OVERTIME IN NON-EMERGENCY SITUATIONS, AND
TO GET APPROVAL AFTER-THE-FACT. HOWEVER, THE GENERAL COUNSEL CONTENDS
THAT THIS INDEED BECAME THE PRACTICE WHICH WAS UNLAWFULLY CHANGED IN THE
MEMO OF APRIL 10.
4. THE EVIDENCE RESPECTING THE CLAIMED PRACTICE OF REQUESTING PAYMENT
FOR OVERTIME WHICH HAD NOT BEEN APPROVED IN ADVANCE IS ANYTHING BUT
CLEAR. ALL WITNESSES STRUCK ME AS ENTIRELY CREDIBLE, BUT THERE WAS MUCH
CONFUSING TESTIMONY BECAUSE EMERGENCY SITUATIONS WERE OFTEN USED AS
EXAMPLES OF OVERTIME PERFORMED WITHOUT PRIOR APPROVAL, BECAUSE THE WORD
SUPERVISOR WAS SOMETIMES USE TO EMBRACE HEAD OR CHARGE NURSES AND
SOMETIMES TO EXCLUDE THEM, AND BECAUSE THERE IS A STRONG SUGGESTION THAT
THE PRACTICE VARIED FROM WARD TO WARD, SHIFT TO SHIFT, AND EVEN FROM
NURSE TO NURSE. IF ONE THING IS CLEAR ON THIS RECORD, IT IS THAT, IN A
TRUE EMERGENCY, NO NURSE WAS EXPECTED TO JEOPARDIZE PATIENT CARE BY
TAKING THE TIME TO SEEK APPROVAL OF NEEDED OVERTIME. IT IS ALSO CLEAR
THAT IN APPROXIMATELY HALF THE WARDS, WHERE NEITHER SURGERY NOR
INTENSIVE CARE TOOK PLACE, NURSES WERE ALWAYS REQUIRED TO SEEK ADVANCE
APPROVAL. THE CHIEF OF NURSING SERVICES AND HER ASSOCIATE FOR EDUCATION
TESTIFIED THAT PRIOR APPROVAL, IN NON-EMERGENCY SITUATIONS, WAS REQUIRED
IN ALL WARDS. THIS IS, IN ESSENCE, A MERE RESTATEMENT OF THE HOSPITAL'S
POLICY, THERE BEING NO EVIDENCE THAT EITHER PERSON HAD FIRST-HAND
KNOWLEDGE OF ACTUAL PRACTICE AT THE WARD LEVEL. THE HEAD NURSE OF THE
OPERATING ROOM TESTIFIED THAT SHE APPROVED ALL OVERTIME BY ASSIGNING IT.
THE HEAD NURSE OF WARD 6B (ACUTE MEDICAL SERVICE) SAID THAT SHE ALWAYS
REQUIRED THAT A REQUEST FOR OVERTIME BE MADE PRIOR TO ITS PERFORMANCE
AND ADDED, INTERESTINGLY, THAT SHE ALWAYS GRANTED IT.
5. THE UNION PRESIDENT, A NURSE ASSIGNED TO THE PSYCHIATRIC WARD,
SAID THAT THE PRACTICE THERE WAS THAT A NURSE, FACED WITH THE NEED TO GO
INTO OVERTIME IN ORDER TO FINISH HER WORK, WOULD INFORM THE HEAD NURSE
WHO WOULD IN TURN CONTACT THE SUPERVISOR. ON OCCASION, SHE SAID, NURSES
WOULD DIRECTLY CONTACT THE SUPERVISOR, BUT THIS WAS RARE. BASED ON
KNOWLEDGE SHE ACQUIRED IN DISCUSSIONS AS LOCAL PRESIDENT, SHE SAID THAT
IN THE OPERATING ROOM, SURGICAL, MEDICAL AND INTENSIVE CARE WARDS,
NURSES WERE PERMITTED TO RECORD THEIR OVERTIME AFTER-THE-FACT, WITHOUT
HAVING CLEARED IT WITH ANYONE. HOWEVER, SHE SAID THAT THE HEAD OR CHARGE
NURSE WOULD BE AWARE OF IT. SHE THUS APPEARS TO DESCRIBE A SITUATION IN
WHICH THE HEAD NURSE IS FULLY AWARE OF THE NEED FOR OVERTIME AND TACITLY
CONSENTS TO ITS PERFORMANCE. WHEN ASKED WHAT WOULD HAPPEN IF THE HEAD
NURSE WAS NOT PRESENT TO OBSERVE THE NEED FOR OVERTIME, SHE RESPONDED
THAT IT WAS THEN THE NURSES "RESPONSIBILITY TO WRITE IT IN (THE CLAIMED
OVERTIME) IF THEY WERE TRUSTED WITH THAT."
6. A NURSE WHO WAS STEWARD FOR THE OPERATING ROOM, SAID THAT, ON THE
DAY SHIFT, OVERTIME WAS "MORE OR LESS ASSIGNED TO US" BY THE HEAD NURSE,
WHEREAS ON THE OFF-SHIFTS, WHERE NO MANAGEMENT WAS AVAILABLE, "THE CALL
WAS MADE AT THE CONVENIENCE OF THE EMPLOYEE OR WHEN THEY WERE ABLE TO."
BY WAY OF EXAMPLE, HE DESCRIBED A SITUATION WHERE LEAVING TO SEEK PRIOR
APPROVAL WOULD JEOPARDIZE PATIENT SAFETY. LATER HE TESTIFIED THAT THE
PRACTICE WAS TO "CALL DOWN WHEN WE WERE READY TO LEAVE AND TELL THEM THE
TIME, WITHOUT ANY INDICATION WHETHER SUCH PRACTICE FOLLOWED UPON AN
EMERGENCY SITUATION OR THE COMPLETION OF ROUTINE WORK. FINALLY, HE
CLARIFIED MATTERS BY SAYING THAT THE AFTER-THE-FACT CALLS FOLLOWED
EMERGENCY SITUATIONS, AND THAT WHERE THERE WAS NO EMERGENCY NURSES WOULD
"CALL DOWN IN ADVANCE TO NOTIFY THEM THAT WERE GOING ON OVERTIME."
7. A NURSE IN THE MEDICAL INTENSIVE CARE UNIT ON THE NIGHT SHIFT
TESTIFIED THAT IN HER WARD, WHEN CONFRONTED WITH THE NEED TO WORK
OVERTIME, A NURSE WOULD JUST FINISH HER WORK AND THEN CALL THE
SUPERVISOR TO REQUEST THE APPROPRIATE AMOUNT OF OVERTIME. THERE IS NO
INDICATION THAT THIS PRACTICE WAS CONFINED TO EMERGENCY SITUATIONS. HER
TESTIMONY IS SIMPLY SILENT ON THAT SUBJECT. FURTHERMORE, SHE NEVER
APPROVED OVERTIME HERSELF WHEN SERVING AS CHARGE NURSE, AS SHE OFTEN
DID. UNLIKE THE PRACTICE ELSEWHERE, HER SUBORDINATES DEALT DIRECTLY WITH
THE SUPERVISOR.
8. THE UNION'S CHIEF STEWARD IS A NURSE IN THE CORONARY CARE UNIT.
THE PRACTICE THERE WAS TO NOTIFY THE HEAD OR CHARGE NURSE AND PROVIDE
HER WITH AN ESTIMATE OF THE AMOUNT OF TIME NEEDED "AND THEN THE CHARGE
NURSE OR HEAD NURSE WOULD CALL, AND THAT WAS BEFORE THE END OF THE
TOUR." SUCH CLEARANCE WAS NOT REQUIRED "WHERE YOU WERE UNABLE TO LEAVE
THE PATIENT'S BEDSIDE . . . (IN AN) . . . EMERGENCY SITUATION." SHE
DEALT DIRECTLY WITH THE SUPERVISOR ONLY WHEN SHE WAS SERVING AS CHARGE
NURSE.
9. ON APRIL 10, 1981, CHIEF NURSE MOODY ISSUED THE FOLLOWING
MEMORANDUM TO ALL NURSING SERVICE PERSONNEL:
1. EFFECTIVE APRIL 19, 1981, ANY OVERTIME PERFORMED AT THE WARD OR
UNIT LEVEL FOR MORE
THAN FIFTEEN (15) MINUTES WILL BE APPROVED PRIOR TO WORKING THE
OVERTIME BY THE APPROPRIATE
ACNS.
2. THE FIRST FIFTEEN (15) MINUTES OF OVERTIME WILL ONLY BE PERFORMED
FOR DOCUMENTATION,
PATIENT CARE, AND CHANGE OF TOUR REPORT. THIS FIFTEEN MINUTES OF
OVERTIME WILL BE APPROVED BY
THE HEAD NURSE/CHARGE NURSE BEFORE ANY NURSING SERVICE EMPLOYEES
PERFORM THE OVERTIME.
3. TO INDICATE APPROVAL OF THE FIFTEEN MINUTES OF OVERTIME, THE HEAD
NURSE/CHARGE NURSE
WILL INITIAL THE OVERTIME ENTRY ON THE TIME SHEET OR WARD OVERTIME
SHEET.
10. NO COPY OF THAT MEMO WAS SENT TO THE DROP BOX OF THE UNION.
UNION PRESIDENT PORCELLI LEARNED OF IT AT A STEWARD'S MEETING ON APRIL
14, FIVE DAYS BEFORE IT TOOK EFFECT. ALTHOUGH NEGOTIATIONS WERE THEN
PENDING WITH A DESIGNATED MANAGEMENT TEAM ON ANOTHER OVERTIME PROPOSAL
(WHICH HAD BEEN DEFERRED AT THE UNION'S REQUEST), THIS PARTICULAR MATTER
WAS NEVER THE SUBJECT OF A BARGAINING REQUEST AND WAS NOT DISCUSSED IN
NEGOTIATIONS WHICH TOOK PLACE ON THE OTHER SUBJECT PRIOR TO THIS TRIAL.
I FIND THIS INCOMPREHENSIBLE, PARTICULARLY IN THE LIGHT OF THE AMICABLE
APPROACH TO THE OTHER MATTER AND THE LACK OF ANY SUGGESTION THAT THIS
ACTIVITY WOULD NOT HAVE BEEN PERFECTLY WILLING TO DISCUSS THE MATTER.
11. THE APRIL 10 MEMO IS OBVIOUSLY NO MODEL OF CLARITY. IT CONFUSED
BOTH MEMBERS OF THE BARGAINING UNIT AND SUPERVISORS AS TO THE
CIRCUMSTANCES IN WHICH PRIOR CLEARANCE SHOULD BE SOUGHT, FROM WHOM IT
SHOULD BE SOUGHT, AND WHO SHOULD SEEK IT. ON ITS FACT IT ADDRESSED ANY
OVERTIME, THUS ARGUABLY EMBRACING EMERGENCY SITUATIONS, ALTHOUGH IT DID
NOT EXPLICITLY OVERRULE LONG-STANDING AND HIGH-LEVEL INSTRUCTIONS THAT
EMERGENCIES WERE EXEMPT FROM CLEARANCE REQUIREMENTS. IT PROVOKED NURSES
TO DIRECTLY CALL SUPERVISORS (BYPASSING HEAD NURSES), EVEN WITH RESPECT
TO EMERGENCY CARE. WHILE GENERAL COUNSEL CONTENDS THAT IT DIRECTED THE
NURSES TO REQUEST PRIOR APPROVAL OF ANTICIPATED OVERTIME IN ALL
INSTANCES, THIS HIGHLY STRAINED INTERPRETATION WAS NOT SUPPORTED BY THE
UNION PRESIDENT AND THE OPERATING ROOM STEWARD, BOTH OF WHOM TESTIFIED
THAT THE MEMO WAS NOT ADDRESSED TO EMERGENCY CARE. HOWEVER AMBIGUOUS IT
WAS, I ACCEPT MOODY'S EXPLANATION, (ACKNOWLEDGED BY THE GENERAL COUNSEL
AS "PERHAPS HER INTENTION"), THAT THE MEMO WAS DESIGNED TO CHANGE THE
MANAGEMENT LEVEL AT WHICH OVERTIME COULD BE APPROVED. THUS, WHEREAS HEAD
NURSES HAD AUTHORITY TO APPROVE OVERTIME FOR MORE THAN 15 MINUTES AFTER
AUGUST OF 1979 IN CERTAIN UNITS, THE MEMO REQUIRED ALL (NON-EMERGENCY)
OVERTIME IN ALL UNITS WHICH WAS EXPECTED TO EXCEED 15 MINUTES TO BE
CLEARED WITH THE ACNS OR THE OFF-SHIFT SUPERVISORS.
12. THE PURPOSE OF THE MEMO SEEMS TO HAVE BEEN IMPROVED MONITORING OF
THE CIRCUMSTANCES IN WHICH OVERTIME WAS USED (IF NOT TO BRING DOWN ITS
USE FROM THEN-EXISTING LEVELS) SO AS TO AVOID EXHAUSTING THE OVERTIME
ALLOCATION BEFORE THE FISCAL YEAR HAD ENDED. THE MEMO IS HIGHLY
SUSCEPTIBLE OF THE INTERPRETATION, AS THE EVIDENCE HERE SUGGESTS, THAT
FIRST-LINE SUPERVISOR APPROVED OVERTIME TOO ROUTINELY, AND THAT THE
INVOLVEMENT OF HIGHER MANAGEMENT WAS NECESSARY TO TIGHTEN THE REINS.
WHATEVER WAS THE CASE, IT IS CLEAR THAT PRIOR APPROVAL BECAME MORE
DIFFICULT THAN IT HAD BEEN, AND THAT MORE QUESTIONS WERE ASKED EVEN IN
AFTER-THE-FACT SITUATIONS. A NURSE WAS NOT TO SEEK PRIOR APPROVAL WHERE,
IN HER PROFESSIONAL JUDGEMENT, A PATIENT'S CARE REQUIRED CONSTANT
ATTENDANCE SO AS TO PRECLUDE ANY ABSENCE. MANY NURSES CLEARLY FELT THAT
THEY WERE BEING HASSLED ABOUT SUCH OVERTIME, AND THAT THE RESPECT
PREVIOUSLY SHOWN FOR THEIR PROFESSIONAL JUDGEMENT HAD BEEN WITHDRAWN OR
CURTAILED. SOME CONCLUDED THAT IT WAS BETTER TO REFRAIN FROM ITS
PERFORMANCE OR TO SKIP THE EFFORT TO COLLECT IT RATHER THAN BE SUBJECTED
TO WHAT THEY PERCEIVED AS QUESTIONS WHICH EXPRESSED DOUBTS CONCERNING
THEIR JUDGEMENT AND COMPETENCY AS WELL AS THEIR FAILURE TO FINISH THEIR
WORK WITHIN THE REGULAR TOUR OF DUTY. AS ALREADY NOTED, DESPITE THIS
DISSATISFACTION AND UNHAPPINESS, NOT TO MENTION THE CONFUSION OBVIOUSLY
GENERATED BY MOODY'S MEMO, THERE WAS, UNACCOUNTABLY, NO EFFORT ON THE
UNION'S PART TO DISCUSS THE MATTER WITH HER OR WITH THE MANAGEMENT TEAM
ALREADY IN PLACE FOR PURPOSES OF NEGOTIATING OTHER OVERTIME MATTERS.
RATHER, ON APRIL 24, AN UNFAIR LABOR PRACTICE CHARGE WAS FILED.
DISCUSSION AND CONCLUSIONS
THE GENERAL COUNSEL CONTENDS THAT THE MEMO OF APRIL 10 MADE TWO
CHANGES: IT REQUIRED THE HEAD NURSE TO SEEK CLEARANCE OF OVERTIME AT A
HIGHER LEVEL OF MANAGEMENT, WHICH IMPACTED SIGNIFICANTLY UPON EMPLOYEES,
AND IT DIRECTED THE NURSES TO REQUEST PRIOR APPROVAL OF ANTICIPATED
OVERTIME IN ALL INSTANCES IN ALL WARDS AND UNITS. RESPONDENT DEFENDS
THAT IT MERELY CHANGED THE LEVEL WITHIN THE HIERARCHY AT WHICH APPROVAL
COULD TAKE PLACE AND HENCE DID NOT CHANGE THE WORKING CONDITIONS OF
EMPLOYEES.
THE GENERAL COUNSEL'S FIRST CONTENTION IS NOT, AS I UNDERSTAND IT,
BASED ON THE NAKED ASSERTION THAT A MERE CHANGE IN THE ALLOCATION OF
MANAGERIAL POWER IS BARGAINABLE RESPECTING IMPACT AND IMPLEMENTATION,
FOR THE GENERAL COUNSEL ASSERTS THAT THIS REDISTRIBUTION HAD DIRECT
CONSEQUENCES FOR EMPLOYEES. HOWEVER, THE MATTER IS NOT FREE FROM DOUBT,
AS ONE OF THE ADVERSE IMPACTS NOTED WAS LOWERED MORALE. IF THE
WITHDRAWAL FROM THE HEAD NURSE OF AUTHORITY TO APPROVE OVERTIME OF MORE
THAN 15 MINUTES, AND THE PLACEMENT OF SUCH POWER IN THE ACNS OR THE
OFF-SHIFT SUPERVISOR IS ASSERTED TO BE A CHANGE WHICH GAVE RISE TO A
BARGAINING OBLIGATION CONCERNING ITS IMPACT AND IMPLEMENTATION, I REJECT
SUCH CONTENTION. SUCH INDIRECT EFFECT UPON UNIT EMPLOYEES DOES NOT
CREATE A BARGAINING OBLIGATION. /4/ NOR DO I ACCEPT, AS SUPPORTED BY
THIS RECORD, THE GENERAL COUNSEL'S CONTENTION THAT THE MOODY MEMO
CONSTITUTED AN INSTRUCTION TO EACH NURSE THAT SHE REQUEST PRIOR APPROVAL
OF ALL OVERTIME. WHILE IT IS TRUE, AS THE GENERAL COUNSEL ARGUES, THAT
THE TERMS "PATIENT CARE" AS USED IN PARAGRAPH TWO COULD BE INTERPRETED
AS INCLUDING EMERGENCIES, AND THAT AT LEAST SEVERAL NURSES AND
SUPERVISORS IN FACT READ IT THAT WAY, I SEE NO MERIT TO THE FURTHER
ARGUMENT THAT THE EMPHASIS ON "MORE" THAN 15 MINUTES AS REQUIRING
"PRIOR" APPROVAL FORTIFIES SUCH CONSTRUCTION. IF CLEARLY CUTS THE OTHER
WAY, GIVEN THE OBVIOUS IMPOSSIBILITY OF ESTIMATING THE DURATION OF
EMERGENCY. THE MEMO CAN BE CONSTRUED, ALTHOUGH LUDICROUSLY, AS REQUIRING
THE HEAD NURSE TO APPROVE THE FIRST FIFTEEN MINUTES OF TREATMENT FOR
CARDIAC ARREST, FOLLOWED BY A REQUIREMENT THAT THE ACNS GIVE PRIOR
APPROVAL TO A CONTINUATION OF SUCH TREATMENT BEYOND THE FIFTEEN MINUTES.
AS NOTED, THE MEMO IS HARDLY A MODEL OF CLARITY, BUT TWO OF THE GENERAL
COUNSEL'S FOUR WITNESSES (THE PRESIDENT AND STEWARD OF THE LOCAL)
RECOGNIZED THAT IT WAS NOT ADDRESSED TO EMERGENCIES. /5/ GIVEN THE
EXISTENCE OF A LONG HISTORY OF THE EXEMPTION FOR EMERGENCIES, THE LACK
OF ANY REFERENCE IN THE MEMO TO EMERGENCIES OR TO THE OUTSTANDING
INSTRUCTIONS WHICH THE GENERAL COUNSEL ARGUES WERE THEREBY OVERRULED,
AND MY RELUCTANCE TO ACCEPT THE NOTION THAT THE HOSPITAL WOULD
JEOPARDIZE PATIENT CARE WITH SUCH AN INSTRUCTION, I CONCLUDE THAT THE
MOODY MEMO DID NOT CHANGE THIS WORKING CONDITION.
THERE IS LEFT FOR RESOLUTION THE QUESTION WHETHER THE MEMO CHANGED AN
ESTABLISHED PRACTICE OF PERMITTING NURSES IN APPROXIMATELY ONE-HALF OF
THE WARDS TO PERFORM NON-EMERGENCY OVERTIME WITHOUT PRIOR APPROVAL. I
HAVE FOUND EVIDENCE CLEARLY SUPPORTING SUCH A PRACTICE ONLY IN THE
MEDICAL INTENSIVE CARE UNIT, ON THE NIGHT SHIFT, BASED ON THE TESTIMONY
OF JANICE BALLER. THIS IS ONE OF 25 TO 30 WARDS EMPLOYING A TINY
FRACTION OF MORE THAN 400 NURSES. THIS RECORD SUGGESTS THAT SUCH
PRACTICE EXISTED, AT LEAST FOR SOME NURSES, ELSEWHERE ON THE NIGHT
SHIFT, WHERE THE LACK OF SUPERVISORS MADE CLEARANCE MORE DIFFICULT.
HOWEVER, IT HARDLY SUPPORTS BY A PREPONDERANCE OF THE EVIDENCE, THE
CONCLUSION THAT THERE WAS A CONSISTENT PRACTICE, OVER AN EXTENDED PERIOD
OF TIME, OF PERMITTING STAFF NURSES TO SECURE AFTER-THE-FACT APPROVAL OF
SELF-ASSIGNED ROUTINE OVERTIME. /6/ I THEREFORE CONCLUDE THAT THE MOODY
MEMO DID NOT CHANGE, BUT RATHER REAFFIRMED THE POLICY AND PRACTICE THAT
ALL NON-EMERGENCY OVERTIME REQUIRED PRIOR APPROVAL. IT ALTERED THAT
POLICY ONLY BY REQUIRING SUCH APPROVAL FOR OVERTIME EXCEEDING 15 MINUTES
AT A HIGHER LEVEL OF MANAGEMENT.
FINALLY, I WOULD RECOMMEND DISMISSAL OF THIS CASE EVEN IF I FOUND A
UNILATERAL CHANGE OF THE PAST PRACTICE. IN THE CIRCUMSTANCES OF THIS
CASE, I WOULD FIND THAT THE LOCAL, HAVING LEARNED THROUGH ITS PRESIDENT
ON TUESDAY, APRIL 14, THAT THIS "CHANGE" WOULD OCCUR ON SUNDAY, APRIL
19, HAD SUFFICIENT NOTICE TO AFFORD IT AMPLE OPPORTUNITY TO REQUEST
NEGOTIATIONS PRIOR TO ANY IMPLEMENTATION. /7/ A RELATED OVERTIME MATTER
WAS ALREADY ON THE BARGAINING TABLE, AND NEGOTIATIONS (AND CONSEQUENTLY
IMPLEMENTATION) HAD BEEN AGREEABLY DEFERRED AT THE UNION'S REQUEST.
THERE IS HERE NO HINT THAT MANAGEMENT WOULD NOT HAVE DONE THE SAME
THING, OR OTHERWISE RESOLVED THE CONFUSION PROVOKED BY MOODY'S MEMO, HAD
THE UNION SIMPLY ASKED FOR AN EXPLANATION. ITS CONSTITUENCY WAS UPSET,
THE MATTER WAS DISCUSSED AT A STEWARD'S MEETING, AND THE TESTIMONY IN
THIS PROCEEDING SHOWS THAT THE UNION'S OFFICERS DISAGREED ABOUT ITS
MEANING. THE GENERAL COUNSEL CONCEDES THAT MOODY'S INTENT MAY VERY WELL
HAVE BEEN ONLY TO EXERCISE THE MANAGEMENT PREROGATIVE OF CHANGING THE
LEVEL WITHIN MANAGEMENT AT WHICH OVERTIME COULD BE APPROVED. IN SHORT,
EVEN ON THE ASSUMPTION THAT SIGNIFICANT CHANGE WAS UNINTENTIONALLY MADE,
THIS WAS A CASE WHERE THE UNION SHOULD HAVE SOUGHT CLARIFICATION AND/OR
BARGAINING, AND HAD THE TIME TO DO IT.
I AM CHEERFULLY BOUND BY THE AUTHORITY'S HOLDING THAT ACTUAL NOTICE
TO A UNION REPRESENTATIVE, IN HIS CAPACITY AS AN EMPLOYEE (AT LEAST TO A
STEWARD AS OPPOSED TO THE PRESIDENT), IS INAPPROPRIATE, WHERE THE UNION
AS AN INSTITUTION IS IGNORED. /8/ IT IS SURELY THE BETTER PRACTICE, AND
MORE CONSISTENT WITH THE STATUTORY STATUS OF A UNION AS EXCLUSIVE
BARGAINING REPRESENTATIVE, TO PROVIDE IT WITH THE KIND OF NOTICE THAT
ACKNOWLEDGES ITS RIGHTS AS AN INSTITUTION, RATHER THAN TO BEG OFF SUCH
OBLIGATIONS ON THE GROUND THAT SOMEHOW THE UNION DID MANAGE TO LEARN AND
NOW HAD THE OBLIGATION TO MAKE THE NEXT MOVE OR NOT BE HEARD TO
COMPLAIN. BUT THERE CAN BE CIRCUMSTANCES WHERE THE APPLICATION OF THIS
APPROACH WILL BE PERCEIVED AS WOODEN AND UNREALISTIC, AND HENCE
UNFORCEABLE, AS THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH
CIRCUIT JUST OBSERVED IN THE AEROSPACE GUIDANCE CASE. /10/ I THINK THIS
IS SUCH A CASE; ONE WHERE THE EQUITIES CALL FOR PLACING THE OBLIGATION
ON THE UNION TO REQUEST BARGAINING ABOUT A VERY CONFUSING DIRECTIVE
BEFORE ATTEMPTING TO ELEVATE IT TO AN UNFAIR LABOR PRACTICE.
ACCORDINGLY, I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
/1/ "SUCH AS EMERGENCY SURGERY, SPECIALING OF SERIOUSLY ILL PATIENTS,
EMERGENCY LABORATORY AND RADIOLOGY WORK, EQUIPMENT OR POWER FAILURES,
AND MINOR OR MAJOR DISASTERS . . . "
/2/ THE SCOPE OF THE CHANGE REMAINS UNCLEAR. THIS IS THE APPARENT
ROOT OF THE HIGHLY QUESTIONABLE PLEADING OF THE SUBSEQUENT CHANGE AS
HAVING OCCURRED IN THE OPERATING ROOM, TWO WARDS AND "INTER ALIA."
/3/ A BARGAINING UNIT MEMBER SUBSTITUTING FOR THE HEAD NURSE.
/4/ OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SSA, SAN
FRANCISCO REGION, 5 FLRA NO. 45.
/5/ THE GENERAL COUNSEL CONTENDS THAT THREE INCIDENTS SUPPORT THE
CLAIM THAT EMPLOYEES CORRECTLY UNDERSTOOD THE MOODY MEMO TO REQUIRE
PRIOR CLEARANCE OF EMERGENCY OVERTIME. THE BALLER INCIDENT INVOLVED HER
WORK AS THE CHARGE NURSE WHEN SHE CLEARLY STAYED BEYOND HER SHIFT IN
ORDER TO "REPORT OFF" TO THE ONCOMING SHIFT AND TO DO HER CHARTING. SHE
DID NOT TESTIFY THAT THE CARE OF HER "VERY ILL" PATIENT KEPT HER BEYOND
THE SHIFT, BUT RATHER THAT CARING FOR HER PATIENTS HAD PREVENTED HER
FROM DOING HER CHARTING. WHEN SHE CALLED THE SUPERVISOR SHE WAS REFUSED
THE TIME IN EXCESS OF THE FIFTEEN MINUTES (WHICH SHE COULD PRESUMABLY
HAVE AUTHORIZED AS CHARGE NURSE), BECAUSE SHE HAD NOT SECURED PRIOR
APPROVAL. THE GALLAGHER INCIDENT INVOLVED HER HAVING OVERSTAYED HER TOUR
FOR PURPOSES OF GIVING A CHANCE OF TOUR REPORT, RATHER THAN DEALING WITH
AN EMERGENCY. ABOUT FIVE MINUTES AFTER THE SHIFT CHANGE, SHE WENT BACK
TO HER PATIENT TO REVIEW THAT REPORT WITH THE ONCOMING NURSE AND FOUND
AN APPARENT STROKE UNDERWAY. SHE ATTENDED TO THE PATIENT UNTIL ABOUT
12:40 P.M. AND CALLED THE NIGHT SUPERVISOR, EXPLAINING WHY SHE HAD NOT
BEEN ABLE TO CALL HIM. HE WAS NOT DISPOSED TO APPROVE THE OVERTIME, AND
TOLD GALLAGHER THAT SHE SHOULD HAVE CALLED BEFORE SHE "EVEN STARTED WITH
ALL THIS." IN ANY EVENT, AFTER SEVERAL MINUTES DISCUSSION, DURING WHICH
SHE INSISTED SHE WAS TOO BUSY TO GET AWAY AND MAKE THE CALL, HE DID
APPROVE THE OVERTIME REQUESTED. THE BUNG INCIDENT DOES APPEAR TO LEND
SUPPORT TO THE GENERAL COUNSEL, AS IT APPEARS TO HAVE INVOLVED AN
EMERGENCY FOR WHICH OVERTIME WAS NOT APPROVED BY THE SUPERVISOR. THAT
SUPERVISOR HOWEVER, WAS OVERRULED BY CHIEF NURSE MOODY.
/6/ SEE INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, 6
FLRA NO. 127. SEE ALSO THE DECISION OF JUDGE OLIVER IN INTERNAL REVENUE
SERVICE, OGDEN SERVICE CENTER, 7-CA-949, OALJ-82-17.
/7/ SOUTHEAST EXCHANGE REGION OF AAFES, COLUMBIA, SC, 6 A/SLMR 237
(NOTICE OF SHIFT SCHEDULE CHANGE POSTED 17 DAYS BEFORE EFFECTUATED, BUT
UNION PRESIDENT LEARNED OF IT, AT UNION MEETING, 4 DAYS BEFORE
IMPLEMENTATION); INTERNAL REVENUE SERVICE AND BROOKLYN DISTRICT OFFICE
OF IRS, 2 FLRA 587 (MANAGEMENT OFFICIAL WHO DID NOT USUALLY EFFECTUATE
SUCH NOTIFICATION AND DID NOT KNOW STATUS OF IMPENDING TRANSFER OF JOB
FUNCTIONS REVEALED TRANSFER PLAN TO UNION VICE-PRESIDENT ON JANUARY 17,
VICE-PRESIDENT PROMPTLY RELAYED INFORMATION TO UNION PRESIDENT, BUT NO
BARGAINING REQUEST MADE BEFORE FEBRUARY 12 IMPLEMENTATION).
/8/ USAF, ALC, AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK, OHIO,
4 FLRA NO. 70.
/10/ 681 F. 2D 466 (1982).
C. CHARLES CARUSO, ESQ., FOR THE RESPONDENT
JUDITH A. RAMEY, ESQ., FOR THE GENERAL COUNSEL 770801 0000680
22 FLRA-ALJ; CASE NO. 3-CA-1632 SEPTEMBER 28, 1982
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, CHARGING PARTY
BEFORE: SAMUEL A. CHAITOVITZ, 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.
SEC. 7101 ET SEQ., 92 STAT. 1191 (HEREINAFTER REFERRED TO AS THE
STATUTE), AND THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS
AUTHORITY (FLRA), 5 C.F.R.CHAPTER XIV, 2410 ET SEQ.
PURSUANT TO A CHARGE FILED ON NOVEMBER 10, 1980 BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREINAFTER CALLED THE
UNION AND/OR AFGE), AGAINST DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION (HEREINAFTER CALLED RESPONDENT AND/OR
SSA), THE GENERAL COUNSEL OF THE FLRA BY THE DIRECTOR OF REGION 3,
ISSUED A COMPLAINT AND NOTICE OF HEARING ON SEPTEMBER 10, 1981. THE
COMPLAINT ALLEGES THAT SSA VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE
STATUTE WHEN IT IMPLEMENTED A CHANGE IN PERFORMANCE STANDARDS IN ITS
BALTIMORE MARYLAND DISTRICT OFFICE WITHOUT BARGAINING OVER ITS IMPACT
AND IMPLEMENTATION WITH AFGE. SSA FILED AN ANSWER DENYING THAT IT HAD
VIOLATED THE STATUTE.
A HEARING IN THIS MATTER WAS CONDUCTED BEFORE THE UNDERSIGNED IN
BALTIMORE, MARYLAND. THE GENERAL COUNSEL OF THE FLRA, SSA, AND AFGE WERE
REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE, AND TO ARGUE ORALLY.
POST HEARING BRIEFS WERE FILED AND HAVE BEEN FULLY CONSIDERED.
BASED UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
ON AUGUST 30, 1979, AFGE WAS CERTIFIED AS THE COLLECTIVE BARGAINING
REPRESENTATIVE FOR A NATIONWIDE CONSOLIDATED UNIT OF RESPONDENT'S
EMPLOYEES. /1/ THE EMPLOYEES OF SSA'S BALTIMORE DISTRICT OFFICE,
INCLUDING CLAIMS REPRESENTATIVES, ARE INCLUDED IN THIS NATIONWIDE
CONSOLIDATED UNIT. AFGE DELEGATED AUTHORITY TO REPRESENT IT FOR
COLLECTIVE BARGAINING IN THE CONSOLIDATED UNIT TO A COMMITTEE MADE OF
SIX MAJOR COMPONENTS, ONE OF WHICH IS THE NATIONAL COUNCIL OF SSA FIELD
OFFICE LOCALS. THE EMPLOYEES OF THE SSA BALTIMORE DISTRICT OFFICE ARE
REPRESENTED BY AFGE LOCAL 3302, WHICH IS PART OF THE NATIONAL COUNCIL OF
SSA FIELD OFFICE LOCALS. /2/
ON APRIL 7, 1980, AFGE SUBMITTED TO SSA CONTRACT PROPOSALS FOR THE
CONSOLIDATED NATIONWIDE UNIT, INCLUDING PROPOSALS CONCERNING PERFORMANCE
APPRAISALS AND STANDARDS. IN JUNE 1980 THE PARTIES STARTED MEETING TO
BARGAIN FOR A NATIONAL AGREEMENT AND THE PARTIES CONTINUED TO MEET AND
NEGOTIATE CONCERNING, INTER ALIA, PERFORMANCE APPRAISALS AND STANDARDS
INTO 1981. AFGE'S PROPOSALS AND BARGAINING WAS AIMED AT OBTAINING A
UNIFORM NATIONWIDE POLICY WITH RESPECT TO PERFORMANCE APPRAISALS AND
STANDARDS.
ON SEPTEMBER 26, 1980 BERTHA BOREK, AFGE LOCAL 3302'S REPRESENTATIVE
AT THE BALTIMORE DISTRICT OFFICE, RECEIVED A MEMORANDUM FROM ASSISTANT
DISTRICT MANAGER DAVE RICHARDSON ASKING FOR A MEETING TO DISCUSS THE
IMPLEMENTATION OF PERFORMANCE STANDARDS FOR CLAIMS REPRESENTATIVES
APPLICABLE ONLY TO THE BALTIMORE DISTRICT OFFICE.
ON SEPTEMBER 30, 1980 RICHARDSON AND BOREK MET TO DISCUSS THE
PROPOSED PERFORMANCE STANDARDS. BOREK INFORMED RICHARDSON THAT
PERFORMANCE STANDARDS WERE BEYOND HER JURISDICTION AND THAT THE MATTER
SHOULD BE DEALT WITH AT A HIGHER AUTHORITY.
ON OCTOBER 2 AND 6, BALTIMORE DISTRICT OFFICE SUPERVISORS AND
RICHARDSON HELD MEETINGS TO DISCUSS THE PERFORMANCE STANDARDS WITH
CLAIMS REPRESENTATIVES, WITH BOREK PRESENT, BUT NOT PARTICIPATING.
ON OCTOBER 20, 1980 BOREK RECEIVED FROM RICHARDSON A MEMORANDUM
SETTING FORTH THE PROPOSED PERFORMANCE STANDARDS AND REQUESTING BOREK'S
COMMENTS. THE MEMORANDUM SET FORTH STATISTICAL AND NUMERICAL PERFORMANCE
STANDARDS. IN RESPONSE, ON OCTOBER 23, 1980, BOREK SENT A MEMORANDUM TO
DISTRICT MANAGER VELMA SEABROOKS IN WHICH BOREK STATED THAT THE PROPOSED
STANDARDS WERE ILLEGAL, THAT THE SUBJECT "APPRAISAL AND PERFORMANCE
STANDARD" WAS BEING NEGOTIATED AS PART OF THE NATIONAL CONTRACT, THAT
THE PROPOSAL SHOULD BE REFERRED TO "MR. DELUCAS, MANAGEMENT'S CHIEF
NEGOTIATOR," THAT ARTICLE 21 OF THE NATIONAL AGREEMENT ADDRESSED THIS
MATTER AND HAD NOT BEEN AGREED TO BY THE PARTIES AND THAT TO IMPLEMENT
THE PROPOSAL WOULD RESULT IN THE FILING OF AN UNFAIR LABOR PRACTICE
CHARGE.
BY A MEMORANDUM DATED OCTOBER 24, 1980 SEABROOKS RESPONDED TO BOREK'S
OCTOBER 23 MEMORANDUM. IN REJECTING BOREK'S POSITION SEABROOKS STATED:
THE NATIONAL CONTRACT, AS YOU NOTE, IS STILL IN THE TALKING STAGE.
SINCE THE SUBJECT
PROPOSED STANDARDS EFFECT ONLY THE CR'S IN THE DOWNTOWN OFFICE, LOCAL
NEGOTIATIONS AS
ATTEMPTED BY MR. RICHARDSON ARE PROPER UNDER THE TERMS OF OUR
EXISTING AGREEMENT. SINCE YOU
HAVE BEEN GIVEN AMPLE OPPORTUNITY TO SUPPLY INPUT, THE STANDARDS IN
THEIR PROPOSED FORMS WILL
BE IMPLEMENTED ON 10/27/80.
A COPY OF THE PROPOSED PERFORMANCE STANDARDS WAS SENT BY BOREK TO
AFGE LOCAL 3302 PRESIDENT RITA PYLE. AT NO TIME DID AFGE AUTHORIZE PYLE
TO NEGOTIATE CONCERNING THESE PERFORMANCE STANDARDS.
ARTICLE 5 SECTION 1 OF THE 1978 COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE PHILADELPHIA REGIONAL OFFICE, FIELD OPERATIONS, SSA, AND
AFGE LOCAL 3302 LISTS THOSE MATTERS WHICH ARE SUBJECT TO NEGOTIATIONS
AND THESE INCLUDE GENERAL WORKING CONDITIONS AND PERFORMANCE APPRAISALS.
ARTICLE 5 SECTION 2 STATES, INTER ALIA:
SECTION 2. THE EMPLOYER AGREES TO MEET AND CONFER WITH THE UNION
BEFORE IMPLEMENTING OR
CHANGING ANY PERSONNEL POLICY OR PROGRAM PERTAINING TO MATTERS
AFFECTING WORKING CONDITIONS IN
THE UNIT INCLUDING PAST PRACTICES. WHEN THE AFOREMENTIONED CHANGES
INVOLVE ONE OFFICE,
MANAGEMENT WILL MEET AND CONFER WITH THE ONSITE REPRESENTATIVE AND
RESOLVE ANY
DIFFERENCES; . . .
ARTICLE 30 DEALS WITH PERFORMANCE APPRAISALS; SECTION 1 STATES THAT
THE PRIMARY OBJECTIVE OF ANY PERFORMANCE APPRAISAL SYSTEM MUST AS A
MINIMUM AID IN, INTER ALIA, "(E) RECOGNIZING JOB REQUIREMENTS AND
STANDARDS AND KEEPING EMPLOYEES AND SUPERVISORS AWARE OF THEM; . . . "
ON OR ABOUT OCTOBER 31, 1980 ALL CLAIMS REPRESENTATIVES WERE GIVEN
COPIES OF THE PERFORMANCE STANDARDS AND THEY PRESUMABLY WENT INTO
EFFECT.
DISCUSSION AND CONCLUSIONS
COMMENCING IN 1979 WITH THE CONSOLIDATION OF THE VARIOUS SSA UNITS
INTO ONE CONSOLIDATED NATIONWIDE UNIT, AND WITH AFGE'S CERTIFICATION AS
THE COLLECTIVE BARGAINING REPRESENTATIVE FOR THAT UNIT, SSA'S OBLIGATION
WAS TO BARGAIN WITH AFGE WITH RESPECT TO THE WORKING CONDITIONS FOR THAT
ENTIRE NATIONWIDE CONSOLIDATED UNIT. THUS, ONCE AFGE WAS CERTIFIED AS
THE COLLECTIVE BARGAINING REPRESENTATIVE FOR THE CONSOLIDATED NATIONWIDE
UNIT, SSA HAD TO NEGOTIATE ON THE BASIS OF THIS NEW UNIT RATHER THAN ON
THE BASIS OF THE SMALLER PREEXISTING UNITS. CF. DEPARTMENT OF HEALTH
AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, 6 FLRA 202 (1981).
THE ISSUES PRESENTED IN THE SUBJECT CASE WERE DISPOSED OF BY THE FLRA IN
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION,
SUPRA. IN THAT CASE, UNDER ALMOST THE IDENTICAL SITUATION TO THE ONE
PRESENT HEREIN, THE UNION WAS ATTEMPTING TO NEGOTIATE ON THE LOCAL
LEVEL, DESPITE THE CONSOLIDATION, AND SSA REFUSED TO COOPERATE. AFGE
CONTENDED THAT SSA VIOLATED THE STATUTE BY REFUSING TO BARGAIN. THE FLRA
PRESENTED THE PROBLEM AND ITS CONCLUSION AS FOLLOWS:
THUS, THE NARROW QUESTION PRESENTED HEREIN IS WHETHER, FOLLOWING THE
CERTIFICATION OF AFGE
FOR A NATIONWIDE CONSOLIDATED UNIT, THERE REMAINED A DUTY TO BARGAIN
NEW CONDITIONS OF
EMPLOYMENT AT THE LOCAL LEVEL PURSUANT TO THE REOPENED CLAUSE
CONTAINED IN THE LOCAL
AGREEMENT. IN AGREEMENT WITH THE RESPONDENT, THE AUTHORITY CONCLUDES
THAT THIS QUESTION MUST
BE ANSWERED IN THE NEGATIVE. . . . /3/
THE FLRA THEN STATED:
FOLLOWING THE ISSUANCE OF AFGE'S CERTIFICATION FOR THE CONSOLIDATED
UNIT, THE APPROPRIATE
UNIT WAS ESTABLISHED AT THE NATIONAL LEVEL. IT IS CLEAR, THEREFORE,
THAT THE MUTUAL
OBLIGATION TO BARGAIN AS ARTICULATED IN THE STATUTE EXISTS ONLY AT
THAT LEVEL OF EXCLUSIVE
RECOGNITION WITH RESPECT TO CONDITIONS OF EMPLOYMENT WHICH AFFECT ANY
EMPLOYEES WITHIN THE
UNIT; A CONTRARY RESULT WOULD RENDER CONSOLIDATION MEANINGLESS. IN
OTHER WORDS, ONCE A LABOR
ORGANIZATION IS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A
CONSOLIDATED UNIT, AS HERE, A
NEW BARGAINING OBLIGATION IS CREATED IN LIEU OF SUCH OBLIGATIONS
WHICH PREVIOUSLY EXISTED
REGARDING SMALLER UNITS NOW INCLUDED IN THE CONSOLIDATED UNIT. . . .
/4/
THE FLRA THEN CONCLUDED, "A REQUIREMENT THAT SUBSTANTIVE BARGAINING
PURSUANT TO A REOPENER MUST TAKE PLACE WITH RESPECT TO A PORTION OF A
NEWLY CONSOLIDATED UNIT WOULD BE ANITHETICAL TO THE GOAL OF STABILITY
AND TO THE PURPOSE OF CONSOLIDATION." /5/
IN LIGHT OF THE FOREGOING REASONING AND CONCLUSIONS OF THE FLRA I
CONCLUDE THAT SSA VIOLATED SECTION 7116(A)(5) AND (1) OF THE STATUTE BY
ITS INSISTANCE UPON BARGAINING CONCERNING THE IMPACT AND IMPLEMENTATION
OF THE INSTITUTION OF THE PERFORMANCE STANDARDS AT THE LOCAL LEVEL, ITS
REFUSAL TO REFER THE MATTER FOR NEGOTIATION AT THE NATIONWIDE UNIT LEVEL
AND ITS INSTITUTION OF THE PERFORMANCE STANDARDS WITHOUT BARGAINING AT
THE NATIONWIDE UNIT LEVEL CONCERNING THE IMPACT AND IMPLEMENTATION OF
THE CHANGE IN THE PERFORMANCE STANDARDS. IN THIS REGARD I ADOPT THE
REASONING AND ANALYSIS OF ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
IN SOCIAL SECURITY ADMINISTRATION, 3-CA-831, 3-CA-2680; OALJ 82-81
(1982).
RESPONDENT CONTENDS THAT THERE WAS NO EVIDENTIARY SHOWING WITH
RESPECT TO ANY SUBSTANTIAL IMPACT ON EMPLOYEES FROM THE IMPOSITION OF
NUMERICAL PERFORMANCE STANDARDS. THIS POSITION IS REJECTED BECAUSE THE
SUBSTANTIAL IMPACT UPON EMPLOYEES OF THIS IMPOSITION OF NUMERICAL
PERFORMANCE STANDARDS IS OBVIOUS AND APPARENT. IN SUCH A CIRCUMSTANCE
REQUIRING SUCH AN EVIDENTIARY OFFERING WOULD BE A MEANINGLESS EXERCISE.
WHEN SUCH AN IMPACT IS SO APPARENT, THE RESPONDENT SHOULD COME FORWARD
IF IN FACT THERE WOULD BE NO IMPACT.
RESPONDENT APPARENTLY URGES THAT THE IMPOSED STANDARDS WERE ACTUALLY
GOALS AND SHOULD NOT BE CONSIDERED SIMILAR TO THE PERFORMANCE STANDARDS
THAT WERE PART OF THE NATIONWIDE NEGOTIATIONS. FIRST THE TWO MATTERS
WERE, IF IN FACT DIFFERENT, SO CLOSELY RELATED THAT THEY WERE PART AND
PARCEL OF THE SAME SUBSTANTIVE MATTER. FURTHER, EVEN IF DIFFERENT,
ABSENT AFGE CONSENT, AS DISCUSSED ABOVE, RESPONDENT WAS OBLIGED TO
NEGOTIATE ON THE NATIONWIDE UNIT LEVEL CONCERNING THE IMPACT AND
IMPLEMENTATION OF ANY ATTEMPT TO INSTITUTE OR CHANGE PERFORMANCE
STANDARDS, OR GOALS, AT THE LOCAL LEVEL.
FINALLY THE QUESTION OF AN APPROPRIATE REMEDY IS PRESENTED. IT IS
CONCLUDED THAT A STATUS QUO ANTE REMEDY WOULD BE APPROPRIATE. THE
SUBJECT CASE MEETS ALL THE CRITERIA SET FORTH BY THE FLRA IN FEDERAL
CORRECTIONAL INSTITUTION, 8 FLRA 604 (1982). /6/ IN THIS REGARD IT IS
NOTED THAT SSA, AFTER GIVING NOTICE ON THE LOCAL LEVEL AND AFTER
RECEIVING A SPECIFIC REQUEST BY THE UNION, REFUSED TO BARGAIN OR DEAL
WITH THE MATTER ON THE NATIONAL LEVEL AND THEN WILLFULLY IMPLEMENTED THE
CHANGED LOCAL PERFORMANCE STANDARDS. FURTHER SUCH A CHANGE, BY ITS
NATURE, HAS A VERY SUBSTANTIAL IMPACT ON EMPLOYEES. FINALLY, BECAUSE THE
PERFORMANCE STANDARDS APPLY ONLY TO RATING EMPLOYEES AND DO NOT
CONSTITUTE ANY CHANGE IN THE WAY THE DISTRICT OFFICE PERFORMS ITS WORK,
THERE IS NO SHOWING THAT A STATUS QUO ANTE REMEDY WOULD DISRUPT OR
IMPAIR THE EFFICIENCY OF THE DISTRICT OFFICE'S OPERATIONS. ACCORDINGLY,
A STATUS QUO ANTE REMEDY IS APPROPRIATE IN THE SUBJECT CASE.
HAVING FOUND AND CONCLUDED THAT SSA VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE, I RECOMMEND THAT THE FLRA ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 2423.20 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS HEREBY
ORDERED THAT THE SOCIAL SECURITY ADMINISTRATION SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING OR REFUSING TO NEGOTIATE IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND
REGULATIONS, WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, THE
EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, WITH
REGARD TO THE IMPACT AND
IMPLEMENTATION OF ANY CHANGE IN PERFORMANCE STANDARDS IN THE
BALTIMORE DISTRICT OFFICE.
(B) IMPLEMENTING ANY CHANGE IN PERFORMANCE STANDARDS IN THE BALTIMORE
DISTRICT OFFICE
WITHOUT FIRST NEGOTIATING IN GOOD FAITH, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS,
WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE WITH RESPECT TO THE IMPACT AND
IMPLEMENTATION OF THE
CHANGE IN PERFORMANCE STANDARDS.
(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) RESCIND THE PERFORMANCE STANDARDS IMPLEMENTED IN THE BALTIMORE
DISTRICT OFFICE ON OR
ABOUT OCTOBER 31, 1980; RESCIND ALL APPRAISALS OF EMPLOYEES IN THE
BALTIMORE DISTRICT OFFICE
BASED UPON THE PERFORMANCE STANDARDS ISSUED ON OR ABOUT OCTOBER 31,
1980 AND REAPPRAISE THE
EMPLOYEE BASED UPON THE PERFORMANCE STANDARDS IN EFFECT PRIOR TO
OCTOBER 31, 1980. MAKE ANY
EMPLOYEE WHOLE FOR ANY LOSS HE INCURRED BECAUSE HE WAS APPRAISED
UNDER THE PERFORMANCE
STANDARDS INSTITUTED ON OCTOBER 31, 1980 AND NOT UNDER THE
PERFORMANCE STANDARDS IN EFFECT
PRIOR TO OCTOBER 31, 1980.
(B) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, THE
EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, NEGOTIATE
IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE IMPACT AND
IMPLEMENTATION OF ANY
CHANGE IN PERFORMANCE STANDARDS.
(C) POST AT ALL OF ITS FACILITIES IN THE BALTIMORE DISTRICT OFFICE
WHERE EMPLOYEES
REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, THE EMPLOYEE'S
EXCLUSIVE REPRESENTATIVE, ARE LOCATED, COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX", ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY A RESPONSIBLE OFFICIAL AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS 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.
(D) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 3, FEDERAL LABOR
RELATIONS AUTHORITY,
WASHINGTON REGIONAL OFFICE, P. O. BOX 33758, WASHINGTON, D.C.
20033-0758, IN WRITING WITHIN 30
DAYS FROM THE DATE OF THE ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
/1/ PRIOR TO THE CONSOLIDATION THERE HAD BEEN APPROXIMATELY 132
SEPARATE UNITS. THESE UNITS WERE CONSOLIDATED INTO THE SINGLE NATIONWIDE
UNIT.
/2/ PRIOR TO THE CONSOLIDATION AFGE LOCAL 3302 AND SSA PHILADELPHIA
REGIONAL OFFICE, FIELD OPERATIONS HAD ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT WHICH HAS BEEN EFFECTIVE SINCE SEPTEMBER 18, 1978
AND WHICH APPLIES TO THE BALTIMORE DISTRICT OFFICE.
/3/ ID. AT PAGE 203.
/4/ ID. AT PAGE 204.
/5/ ID. AT PAGE 204.
/6/ THE CONSIDERATIONS SET FORTH BY THE FLRA ARE APPARENTLY JUST
SOME, BUT NOT ALL, OF THE MATTERS THE FLRA MIGHT CONSIDER. ID. AT PAGE
606.
CARL J. CLAYTON, ESQ.
ROBERT INGLE, ESQ., FOR RESPONDENT
JOHN HARRIS, FOR CHARGING PARTY
PATRICIA EANET DRATCH, ESQ.
PETER ROBB, ESQ., FOR GENERAL COUNSEL, FLRA
APPENDIX
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 FAIL OR REFUSE TO NEGOTIATE IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE, WITH REGARD TO THE IMPACT AND IMPLEMENTATION
OF ANY CHANGE IN PERFORMANCE STANDARDS IN THE BALTIMORE DISTRICT OFFICE.
WE WILL NOT IMPLEMENT ANY CHANGE IN PERFORMANCE STANDARDS IN THE
BALTIMORE DISTRICT OFFICE WITHOUT FIRST NEGOTIATING IN GOOD FAITH, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, WITH THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE WITH RESPECT TO THE IMPACT AND
IMPLEMENTATION OF THE CHANGE IN PERFORMANCE STANDARDS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE PERFORMANCE STANDARDS IMPLEMENTED IN THE
BALTIMORE DISTRICT OFFICE ON OR ABOUT OCTOBER 31, 1980; RESCIND ALL
APPRAISALS OF EMPLOYEES IN THE BALTIMORE DISTRICT OFFICE BASED UPON THE
PERFORMANCE STANDARDS ISSUED ON OR ABOUT OCTOBER 31, 1980 AND REAPPRAISE
THE EMPLOYEES BASED UPON THE PERFORMANCE STANDARDS IN EFFECT PRIOR TO
OCTOBER 31, 1980.
WE WILL MAKE WHOLE ANY EMPLOYEE FOR ANY LOSS HE INCURRED BECAUSE HE
WAS APPRAISED UNDER THE PERFORMANCE STANDARDS INSTITUTED ON OCTOBER 31,
1980 AND NOT UNDER THE PERFORMANCE STANDARDS IN EFFECT PRIOR TO OCTOBER
31, 1980.
WE WILL UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE, NEGOTIATE IN GOOD FAITH, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE IMPACT AND IMPLEMENTATION OF ANY
CHANGE IN PERFORMANCE STANDARDS.
. . . (AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST 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, FEDERAL LABOR RELATIONS AUTHORITY, REGION 3,
WASHINGTON REGIONAL OFFICE, P. O. BOX 33758, WASHINGTON, D.C.
20033-0758 AND WHOSE TELEPHONE NUMBER IS (202) 653-8452. 5 U.S.C. 7101
ET SEQ., 92 STAT. 1191 (HEREINAFTER REFERRED TO 770801 0000670
21 FLRA-ALJ; CASE NO. 9-CA-20028 NOVEMBER 3, 1982
VETERANS ADMINISTRATION MEDICAL CENTER, PALO ALTO, CALIFORNIA,
RESPONDENT AND HAZEL J. BROCKMAN, AN INDIVIDUAL, CHARGING PARTY
BEFORE: FRANCIS E. DOWD, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, HEREIN REFERRED TO AS THE STATUTE, 92 STAT. 1191, 5
U.S.C. 7107, ET SEQ. IT WAS INSTITUTED BY THE ACTING REGIONAL DIRECTOR
OF THE NINTH REGION OF THE FEDERAL LABOR RELATIONS AUTHORITY BY THE
ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING DATED DECEMBER 29, 1981,
BASED UPON AN UNFAIR LABOR PRACTICE CHARGE FILED ON OCTOBER 15, 1981 AND
AN AMENDED CHARGE FILED ON DECEMBER 15, 1981 BY CHIEF STEWARD HAZEL J.
BROCKMAN, HEREIN REFERRED TO AS THE CHARGING PARTY.
THE COMPLAINT ALLEGES THAT VETERANS ADMINISTRATION MEDICAL CENTER,
PALO ALTO, CALIFORNIA, HEREIN THE RESPONDENT, VIOLATED SECTION
7116(A)(1) AND (2) OF THE STATUTE BY SUSPENDING CHIEF STEWARD HAZEL
BROCKMAN FOR ONE WORK DAY BECAUSE SHE ENGAGED IN PROTECTED ACTIVITY ON
BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2110,
AFL-CIO (AFGE), HEREIN REFERRED TO AS AFGE OR THE UNION. RESPONDENT
DENIES ANY VIOLATION OF THE STATUTE.
A HEARING WAS HELD IN SAN FRANCISCO, CALIFORNIA, AT WHICH TIME THE
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO
ADDUCE EVIDENCE, TO CALL, EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
ARGUE ORALLY. BRIEFS FILED BY THE GENERAL COUNSEL AND RESPONDENT HAVE
BEEN DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, /1/ INCLUDING
MY EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING,
AND FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. VETERANS ADMINISTRATION MEDICAL CENTER, PALO ALTO, CALIFORNIA IS
AN AGENCY WITHIN THE MEANING OF 5 USC 7103(A)(3). BERNICE G. SCHOELEN,
RESPONDENT'S CHIEF, DIETETIC SERVICE, IS AN AGENT OF RESPONDENT, ACTING
ON ITS BEHALF AND A SUPERVISOR WITHIN THE MEANING OF SECTION 7103(A)(10)
OF THE STATUTE.
2. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2110,
AFL-CIO (AFGE), IS A LABOR ORGANIZATION WITHIN THE MEANING OF 5 USC
7103(A)(4). AFGE IS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF AN
APPROPRIATE UNIT CONSISTING OF CERTAIN GENERAL SCHEDULE (GS) EMPLOYEES
AS MORE FULLY DESCRIBED IN G.C. EXH. NO. 1(F).
3. HAZEL BROCKMAN IS EMPLOYED AS A FOOD SERVICE WORKER FOR
RESPONDENT. SHE IS AN EMPLOYEE WITHIN THE MEANING OF 5 USC 7103(A)(2).
SHE HAS BEEN A UNION STEWARD SINCE JANUARY 1979 AND IS PRESENTLY THE
CHIEF STEWARD FOR AFGE. SHE DESCRIBES HERSELF AS ACTIVE IN UNION AFFAIRS
BUT TESTIFIED SHE SPENT AN HOUR OF DUTY TIME EACH MONTH ON UNION
MATTERS. THE RECORD ESTABLISHES THAT OTHER UNION STEWARDS ARE ALSO
ACTIVE. FOR EXAMPLE, G.C. EXH. NO. 4 IS A SIGN-OUT REGISTER FOR
EMPLOYEES LEAVING THEIR JOBSITE TO PERFORM UNION ACTIVITIES DURING THE
PERIOD FROM MAY 1980 TO FEBRUARY 1982. THIS REGISTER SHOWS THAT NOEL
CARTER WAS EQUALLY OR MORE ACTIVE THEN BROCKMAN AND HE IS ONE OF SEVERAL
STEWARDS WHO HAVE RECEIVED PROMOTIONS, ACCORDING TO THE CREDITED AND
UNDISPUTED TESTIMONY OF BERNICE SCHOELEN.
4. FOOD SERVICE WORKERS ARE ALSO REFERRED TO AS A CHARGE PERSON.
BROCKMAN HAS BEEN EMPLOYED AT RESPONDENT FOR 22 YEARS. HER MOST RECENT
PERFORMANCE RATING WAS SATISFACTORY AND THE PRESENT PROCEEDING DOES NOT
RELATE TO THE QUALITY OF HER WORK PERFORMANCE. HER DUTIES ARE TO ORDER
FOOD FOR PATIENTS IN HER CHARGE, TO MAKE SURE THE TRAYS OF FOOD ARE
DISPATCHED ON TIME TO PATIENTS, TO ENSURE THAT HER PATIENTS RECEIVE THE
CORRECT DIET, TO CHECK THE FOOD TRAYS TO SEE THAT EVERYTHING IS ON THE
TRAY, AND TO DIRECT SEVERAL EMPLOYEES IN CARRYING OUT THE MEAL SERVICE.
ORDERING FOOD IS ALSO REFERRED TO AS FOOD CHARTING. DINNER AND SUPPER
MEALS REQUIRE MORE TIME TO ORDER THAN BREAKFAST. BROCKMAN WORKS THE LATE
SHIFT FROM 10:30 A.M. TO 7:00 P.M. HER RESPONSIBILITIES ARE SET FORTH IN
G.C. EXH. NO. 6 WHICH INDICATES THAT FROM 2:00 TO 2:30 SHE NORMALLY
WOULD BE ENGAGED IN CHARTING ALL FOOD ITEMS FOR DINNER AND SUPPER.
HOWEVER, BROCKMAN ADMITTED THAT THE TIMES SET FORTH ON THE LIST OF
RESPONSIBILITIES ARE NOT HARD AND FAST. THE FOOD CHARTS ARE NORMALLY
TURNED IN BY CHARGE PERSONS AT THE END OF THEIR SHIFT AS THEY DEPART.
THEY ARE PLACED ON TOP OF A FILE CABINET NEAR THE SIGN-OUT REGISTER IN
BUILDING 25. THE NEXT DAY THE MORNING FOREMAN SEPARATES THE CHARTS AND
PREPARES A TALLY. SINCE FROZEN MEATS TAKE A DAY OR SO TO SLOWLY THAW,
THE CHARTS ARE PREPARED 3 DAYS IN ADVANCE. FAILURE TO TURN IN THE CHARTS
REQUIRES THE MORNING FOREMAN TO ASSIGN THIS DUTY TO AN EMPLOYEE ON THE
EARLY SHIFT SO THAT IT WILL BE DONE PROMPTLY, RATHER THAN WAIT FOR THE
PROPER PERSON TO REPORT FOR DUTY ON THE LATE SHIFT. OF COURSE, IF THE
FOOD CHART HAS MERELY BEEN LEFT ON THE WARD, SOMEONE MIGHT BE ABLE TO GO
AND FIND IT. HOWEVER, IF THE FOOD CHART WAS NEVER PREPARED, OR BROUGHT
HOME BY MISTAKE, THEN THE FOREMAN MUST ARRANGE FOR ITS COMPLETION.
CLEARLY, THE CHARTING OR ORDERING OF FOOD IS AN IMPORTANT DAILY
RESPONSIBILITY OF THE CHARGE PERSON ESPECIALLY SINCE PATIENTS ARE ON A
VARIETY OF SPECIAL DIETS, DUE TO THEIR AGE AND MEDICAL PROBLEMS.
5. ON MONDAY, SEPTEMBER 3, 1981, BROCKMAN SIGNED OUT AT AROUND 2:00
P.M. TO VISIT THE UNION OFFICE IN ANOTHER BUILDING. SHE DID NOT TELL HER
SUPERVISOR HOW LONG SHE WOULD BE GONE ALTHOUGH SHE KNEW THIS PARTICULAR
TRIP MIGHT TAKE AT LEAST AN HOUR BECAUSE SHE HAD TO REVIEW A GRIEVANCE.
HAD SHE JUST BEEN GOING TO PICK UP HER MAIL THE ROUNDTRIP WOULD HAVE
TAKEN APPROXIMATELY 20 MINUTES. FROM THE TIME SHE RETURNED TO DUTY AT
3:10 UNTIL SHE SIGNED OUT AT 7:00 P.M., SHE MADE NO EFFORT TO DO THE
FOOD CHARTS OR ASCERTAIN WHETHER ANYONE HAD BEEN ASSIGNED TO DO THEM IN
HER ABSENCE. HER EXCUSE IS THAT SHE ASSUMED SOMEONE ELSE HAD DONE THEM
WHILE SHE WAS AT THE UNION OFFICE, BUT THE FACT REMAINS THAT IT WAS HER
RESPONSIBILITY TO COMPLETE THE CHARTS AND TURN THEM IN. SHE APPARENTLY
ALSO MUST HAVE ASSUMED THAT WHOEVER WAS DOING HER CHARTING ASSIGNMENT
WOULD ALSO ASSUME RESPONSIBILITY FOR TURNING THE CHARTS IN. I FRANKLY
DO NOT BELIEVE BROCKMAN BUT, WHATEVER HER EXCUSE, SHE FAILED TO COMPLETE
HER ASSIGNMENT AND IT WAS HER RESPONSIBILITY.
6. ON TUESDAY, SEPTEMBER 4, BROCKMAN'S FAILURE TO COMPLETE THE CHART
WAS DISCOVERED AND ARRANGEMENTS WERE MADE FOR SOMEONE ELSE TO DO IT. AT
THE END OF THE SHIFT, WHEN BROCKMAN WAS SIGNING OUT, SHE AGAIN FAILED TO
TURN IN HER FOOD CHART. SHE ADMITS TO THIS FAILURE. HER EXPLANATION THIS
TIME IS THAT SHE LEFT IT ON THE WARD. WHETHER HER CONDUCT WAS
INTENTIONAL OR NOT, IT MADE ADDITIONAL WORK FOR THE MORNING FOREMAN.
7. ON SEPTEMBER 5, BROCKMAN AGAIN FAILED TO TURN IN A FOOD CHART.
THE NEXT MORNING FOREMAN GREEN DISCOVERED THIS OMISSION AND INSTRUCTED
SOMEONE ELSE TO DO IT. SHE LATER REPORTED TO SUPERVISOR BURNETT THAT
BROCKMAN HAD BROUGHT HER FOOD CHART HOME. GREEN TESTIFIED AT THE HEARING
BUT WAS NOT ASKED TO EXPLAIN WHEN SHE RECEIVED THIS INFORMATION.
BROCKMAN DENIES SHE BROUGHT THE FOOD CHART HOME AND CLAIMS SHE TURNED IT
IN. THE QUESTION IS WHETHER THE FOOD CHART WAS COMPLETED BY BROCKMAN AND
TURNED IN. GREEN WAS A HIGHLY CREDIBLE AND PERSUASIVE WITNESS. I ACCEPT
HER TESTIMONY THAT BROCKMAN, FOR THE THIRD SUCCESSIVE DAY, FAILED TO
TURN IN HER CHART.
8. ON FRIDAY, SEPTEMBER 7, AT APPROXIMATELY 4:25 P.M. BROCKMAN CAME
TO THE FOREMAN'S OFFICE IN BLDG. 25 AND REPORTED TO LUCILLE BURNETT,
FOOD SERVICE FOREMAN, THAT SHE WAS SICK, TIRED OF WORKING SHORT, AND WAS
GOING HOME. HER SHIFT THAT DAY WAS FROM 1U:30 A.M. TO 7:00 P.M. SHE
SIGNED THE BOOK SHOWING 5:20 P.M., BUT THE ACTUAL DEPARTURE TIME WAS
4:25 P.M. BURNETT REPORTED THIS TO FOREMAN LUCILLE MOORE WITH
INSTRUCTIONS TO OBTAIN A SIGNED LEAVE SLIP THE NEXT DAY. BROCKMAN
ESSENTIALLY ADMITS THE FOREGOING BUT ASSERTS, BY WAY OF EXPLANATION,
THAT WHEN SHE GOT HOME THAT EVENING AT 5:00 SHE REALIZED SHE'D MADE A
MISTAKE. SHE CLAIMS THAT SHE MERELY READ THE CLOCK INCORRECTLY AS THE
HANDS WERE BOTH CLOSE TOGETHER. THE NEXT MORNING SHE SIGNED A LEAVE SLIP
WHICH WAS NOT PLACED IN EVIDENCE. THE GENERAL COUNSEL ASSERTS THAT
BROCKMAN'S TESTIMONY THAT THE SIGN-OUT ERROR WAS INADVERTENT SHOULD BE
CREDITED BUT, IN MY OPINION, IT DOESN'T MATTER WHETHER SHE IS CREDITED
OR NOT. IT IS UNDISPUTED THAT WHEN SHE SIGNED OUT, SHE PUT THE INCORRECT
TIME IN THE REGISTER. RESPONDENT, BECAUSE OF ITS PRIOR PROBLEMS WITH
BROCKMAN AND THE SIGN-OUT REGISTER, CONCLUDED SHE WAS DELIBERATELY
FALSIFYING HER DEPARTURE TIME. /2/
9. SUPERVISOR BURNETT TESTIFIED THAT AS A RESULT OF BROCKMAN'S
CONDUCT OF SEPTEMBER 3, 4, 5, AND 7 RELATED ABOVE, SHE PREPARED NOTES ON
WHAT HAPPENED AND GAVE TWO COPIES TO THIRD-LEVEL SUPERVISOR OSWALD
THOMPSON, ONE FOR HIMSELF AND ONE FOR BERNICE SCHOELEN. BASED UPON THE
INFORMATION PROVIDED, SCHOELEN ISSUED A LETTER OF PROPOSED SUSPENSIONS
ON SEPTEMBER 25. THE LETTER NOTED, INTER ALIA, THAT THE "PURPOSE OF
TURNING IN THE SHEETS PRIOR TO LEAVING IS SO THAT WARD ORDERS CAN BE
TOTALED AND THE CORRECT AMOUNT OF FOOD ORDERED FOR SUBSEQUENT MEALS.
FAILURE TO COMPLY WITH THE PROCEDURES REGARDING TURNING IN THE SHEETS
CAN IMPACT ON MEAL SERVICE TO PATIENTS." ON OCTOBER 10 RESPONDENT
NOTIFIED BROCKMAN THAT HER VERBAL REPLY OF SEPTEMBER 25 AND HER WRITTEN
REPLY OF OCTOBER 5 HAD BEEN CAREFULLY CONSIDERED BUT, FOR THE REASONS
SET FORTH THEREIN AND CONSIDERING HER PRIOR DISCIPLINARY RECORD, A
DECISION HAD BEEN MADE TO SUSPEND HER FOR ONE DAY ON OCTOBER 27.
THEREUPON, BROCKMAN ELECTED TO FILE THE UNFAIR LABOR PRACTICE CHARGE
INITIATING THIS PROCEEDING.
10. THE GENERAL COUNSEL PRESENTED NO TESTIMONY, AND THE COMPLAINT
DOES NOT ALLEGE, THAT ANY OF RESPONDENT'S FOREMEN AND SUPERVISORS EVER
MADE ANY STATEMENTS DEMONSTRATING AN ANTI-UNION BIAS OR ATTITUDE. THE
RESPONDENT OFFERED TESTIMONY SHOWING THAT OTHER UNION STEWARDS AND
OFFICERS HAD RECEIVED PROMOTIONS. SCHOELEN TESTIFIED CREDIBLY THAT SHE
SUPPORTED EMPLOYEES' RIGHTS TO JOIN UNIONS AND FILE GRIEVANCES, AND THAT
SHE HERSELF IS A FORMER UNION MEMBER. BASED UPON MY EVALUATION OF ALL
THE WITNESSES, I AM UNABLE TO FIND ANY BASIS FOR CONCLUDING THAT
BROCKMAN'S SUSPENSION WAS BASED UPON REASONS OTHER THAN THOSE STATED IN
THE LETTER OF PROPOSED SUSPENSION.
11. THE GENERAL COUNSEL ATTEMPTED, THROUGH THE TESTIMONY OF BROCKMAN
AND OTHERS, TO SHOW THAT FAILURE TO COMPLETE AND TURN IN THE FOOD CHARTS
HAS BEEN A COMMON OCCURRENCE NEVER RESULTING IN AN EMPLOYEE BEING
COUNSELED OR DISCIPLINED. /3/ BASED UPON MY REVIEW OF THE ENTIRE RECORD
I AM NOT PERSUADED THAT FAILURE TO PERFORM THIS FUNCTION IS A FREQUENT
OCCURRENCE BUT I AM SATISFIED THAT FROM TIME TO TIME EMPLOYEES HAVE
FORGOTTEN TO DO THIS TASK OR, WHAT IS MORE LIKELY, HAVE COMPLETED THE
CHART BUT IN THEIR HASTE TO LEAVE AT THE END OF THEIR SHIFT, HAVE
INADVERTENTLY FORGOT TO TURN IT IN FOR ONE REASON OR ANOTHER. /4/
RESPONDENT STIPULATED THAT DURING THE 5-YEAR PERIOD PRECEDING
SEPTEMBER 25, 1981 THERE HAD BEEN NO DISCIPLINARY ACTIONS GIVEN ANY
EMPLOYEE IN THE DIETETIC SERVICE FOR FAILURE TO COMPLETE AND TURN IN
THEIR FOOD CHARTS. RESPONDENT DECLINED TO STIPULATE THAT EMPLOYEES HAD
NOT BEEN COUNSELED FOR THIS OMISSION. THE EVIDENCE DISCLOSES THAT IN
SOME INSTANCES THERE HAS BEEN NO COUNSELING, IN OTHER INSTANCES THERE
HAS BEEN COUNSELING, AND WITH RESPECT TO SOME INSTANCES THE GENERAL
COUNSEL'S WITNESSES MERELY HAD NO KNOWLEDGE OF ANY COUNSELING WITH
RESPECT TO EMPLOYEES OTHER THAN THEMSELVES.
THE FOREGOING EVIDENCE MERELY TENDS TO SHOW THAT EMPLOYEES, INCLUDING
BROCKMAN, HAD SOMETIMES FORGOTTEN TO TURN IN THEIR FOOD CHARTS AND
MANAGEMENT DID NOT ALWAYS MAKE AN ISSUE OF IT. BUT NONE OF THESE
SITUATIONS ARE PARTICULARLY RELEVANT TO THE PRESENT CASE IN WHICH
BROCKMAN FAILED TO TURN IN HER FOOD CHARTS ON THREE SUCCESSIVE DAYS. I
REJECT THE GENERAL COUNSEL'S EFFORT TO TREAT EACH OF THE INCIDENTS
INVOLVING BROCKMAN DURING THE WEEK OF SEPTEMBER 3 AS SEPARATE, DISTINCT
AND UNRELATED TO EACH OTHER. BROCKMAN'S SUSPENSION WAS BASED UPON THE
TOTALITY OF HER CONDUCT; I.E. THREE CONSECUTIVE INCIDENTS OF FAILING TO
FOLLOW OUTSTANDING INSTRUCTIONS WITH RESPECT TO COMPLETING THE FOOD
CHARTS, AND A RECURRENCE OF SIGNING THE INCORRECT TIME IN THE SIGN-OUT
REGISTER. NOTWITHSTANDING BROCKMAN'S PROTESTATIONS TO THE CONTRARY, IT
IS EASY TO UNDERSTAND WHY RESPONDENT MIGHT VIEW BROCKMAN'S CONDUCT
DURING THIS WEEK AS SOMETHING MORE THAN MERE FORGETFULNESS BUT NOT QUITE
RISING TO THE LEVEL OF INSUBORDINATION. THUS, THE LETTER OF PROPOSED
SUSPENSIONS MERELY STATED WHAT HAPPENED, AND AFTER HEARING HER ORAL AND
WRITTEN REPLIES, DECIDED TO CARRY THROUGH WITH A PROGRESSIVE FORM OF
DISCIPLINE, NAMELY, A 1-DAY SUSPENSION.
ULTIMATE CONCLUSIONS
UNION STEWARDS, LIKE OTHER EMPLOYEES, SOMETIMES CONDUCT THEMSELVES IN
A MANNER WHICH REQUIRES AN AGENCY TO ADMINISTER DISCIPLINE. UNION
STEWARDS, NOTWITHSTANDING THEIR PROTECTED ACTIVITY UNDER THE STATUTE,
ARE NOT IMMUNE FROM DISCIPLINARY ACTION WHERE THEIR CONDUCT SO WARRANTS.
HAZEL BROCKMAN CONDUCTED HERSELF IN A MANNER WHICH PRETTY MUST FORCED
RESPONDENT TO DISCIPLINE HER, OTHERWISE UNIFORM ENFORCEMENT OF THE SAME
RULES AGAINST OTHER EMPLOYEES WOULD HAVE BEEN RENDERED DIFFICULT IF NOT
IMPOSSIBLE.
SECTION 7116(A)(1) OF THE STATUTE MAKES IT AN UNFAIR LABOR PRACTICE
FOR AN AGENCY "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN
THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT" PROTECTED BY THE STATUTE,
INCLUDING THE RIGHT TO ENGAGED IN ACTIVITIES ON BEHALF OF A LABOR
ORGANIZATION. SECTION 7116(A)(2) MAKES IT 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 GENERAL COUNSEL HAS THE BURDEN OF PROVING THE ALLEGATIONS OF THE
COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE. A MERE SUSPICION THAT
RESPONDENT'S REASONS FOR DISCIPLINING BROCKMAN WERE PRETEXTUAL IS NOT
ENOUGH. BASED UPON MY REVIEW OF THE ENTIRE RECORD, I CONCLUDE THAT THE
GENERAL COUNSEL HAS NOT SUSTAINED ITS BURDEN OF PROVING THAT BROCKMAN'S
SUSPENSION WAS MOTIVATED BY ANTI-UNION REASONS.
HAVING FOUND THAT RESPONDENT DID NOT ENGAGED IN ANY UNFAIR LABOR
PRACTICES BY THE ACTIONS AND CONDUCT DESCRIBED ABOVE, AND THEREFORE HAS
NOT VIOLATED SECTION 7116(A)(1) AND (2) AS ALLEGED IN THE COMPLAINT, IT
IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
THAT THE COMPLAINT IN CASE NO. 9-CA-20028 BE, AND IT HEREBY IS,
DISMISSED.
/1/ THE GENERAL COUNSEL'S MOTION TO CORRECT THE TRANSCRIPT IS GRANTED
EXCEPT FOR PROPOSED CORRECTIONS NUMBERED 8 AND 14. SEE APPENDIX A.
/2/ IN JULY 1981 RESPONDENT, IN ORDER TO AVOID BECOMING LEGALLY
OBLIGATED TO PAY EMPLOYEES WHO SIGNED IN PRIOR TO THEIR SCHEDULED
STARTING TIME, INSTRUCTED THAT THE SIGN-IN REGISTER NOT BE MADE
AVAILABLE UNTIL 10:30 A.M. THE BEGINNING OF THE SHIFT. EMPLOYEES WERE TO
SIGN IN AT 10:30 AND AFTER CHANGING CLOTHES REPORT TO WORK AT 10:35.
BROCKMAN WAS ANNOYED WITH THIS CHANGE OF PROCEDURE AND DECIDED TO SHOW
HER FEELINGS BY SIGNING THE BOOK 10:35 A.M. EVEN THOUGH SHE ARRIVED AT
10:30 A.M. EVEN THOUGH COUNSELED TO BE COOPERATIVE AND SIGN THE REGISTER
PROPERLY, SHE CONTINUED TO SIGN IN THE INCORRECT TIME. FOR THIS SHE WAS
REPRIMANDED ON JULY 13, 1981.
/3/ IN THIS REGARD, THE GENERAL COUNSEL PLACES HEAVY RELIANCE ON THE
UNDISPUTED FACT THAT EMPLOYEES JASPER AND HAM REGULARLY RECEIVED
ASSISTANCE FROM FELLOW EMPLOYEES WITH THEIR FOOD CHARTS. JASPER COULDN'T
ADD AND WELCOMED ASSISTANCE. HAM FELT THAT FOOD CHARTING WAS "WOMEN'S
WORK" AND SO HE WOULD TRADE THAT TO DO THEIR SPECIAL CLEANING I.E.
SCRUBBING THE KITCHEN AND THE CARTS. RESPONDENT UNDERSTOOD THE SITUATION
QUITE WELL (SEE GREEN'S TESTIMONY) AND THERE WAS NO NEED FOR DISCIPLINE
BECAUSE THE WORK WAS BEING COMPLETED AND TURNED IN. IN CONTRAST,
BROCKMAN WAS NOT COMPLETING AND/OR TURNING HER CHARTS IN. THEREFORE I
FIND NO EVIDENCE OF DISPARATE TREATMENT BASED UPON THESE EXAMPLES.
/4/ EMPLOYEE WHETSTONE TESTIFIED THAT SHE HAD ONLY FORGOTTEN TO CHART
SIX TIMES IN 4 YEARS. I DON'T REGARD THIS AS EVIDENCE THAT FAILING TO
COMPLETE CHARTS IS AN EVERY DAY OCCURRENCE. EMPLOYEE WRIGHT TESTIFIED
THAT ON TWO OCCASIONS KATHERINE STRICKLAND DID NOT DO A FOOD ORDER. THE
FIRST TIME IT HAPPENED, WRIGHT SIMPLY DID IT HERSELF. THE SECOND TIME, 3
TO 4 WEEKS LATER, WRIGHT CONCLUDED THAT "THIS IS BEGINNING TO BE A
PATTERN" AND PROMPTLY COMPLAINED TO A SUPERVISOR. OBVIOUSLY, SOME
EMPLOYEES RESENT DOING WORK WHICH IS THE RESPONSIBILITY OF OTHER
EMPLOYEES. WRIGHT ALSO REPORTED A SINGLE INCIDENT INVOLVING NOVA ROBERTS
WHICH RESPONDENT WAS UNAWARE OF UNTIL WRIGHT TOLD A SUPERVISOR. I FIND
THESE EXAMPLES TO BE ISOLATED AND NOT SUPPORTIVE OF GENERAL COUNSEL'S
POSITION.
DALE F. SMITH, ESQ., FOR THE RESPONDENT
EARL BEEMAN, FOR AFGE, LOCAL 2110
JOSANNA BERKOW, ESQ., FOR THE GENERAL COUNSEL
APPENDIX A
PAGE AND LINE NUMBER CORRECTIONS
1. PAGE 1 LINE 20 "CHARGING PARTY" TO "GENERAL COUNSEL"
2. PAGE 2 LINE 18 "CHARGING PARTY" TO "GENERAL COUNSEL"
3. PAGE 3 LINE 3 "CHARGING PARTY" TO "GENERAL COUNSEL"
4. PAGE 9 LINE 7 "1-A" TO "1(A) - (F)"
5. PAGE 19 LINE 13 "CHARGING PARTY" TO "GENERAL COUNSEL"
6. PAGE 42 LINE 25 "BROKOW" TO "BERKOW"
7. PAGE 79 LINE 15 "5TH" TO "25TH"
8. PAGE 100 LINE 28* "NO" TO "YES"
9. PAGE 105 LINE 24 "BETTIE GREEN" TO "BETTY BLAND"
10. PAGE 106 LINE 10 "NORBA" TO "NOVA"
11. PAGE 112 LINE 4 "9" TO "10"
12. PAGE 113 LINE 24 "RECORDED" TO "REPORTED"
13. PAGE 196 LINE 17 "IS" TO "IN"
14. PAGE 200 LINE 9* "NO" TO "YES"
15. PAGE 207 LINE 4 PLACE QUOTATION MARKS BEFORE "THE"
16. PAGE 207 LINE 6 PLACE QUOTATION MARKS BEFORE "CRITICISM"
*THE MOTION TO CORRECT TRANSCRIPT IS DENIED BECAUSE THE REPORTER'S
TRANSCRIPTION OF THE WITNESSES' RESPONSES IS ACCURATE. HOWEVER, I AGREE
THAT THE IMPORT OF THE TESTIMONY IS CONSISTENT WITH GENERAL COUNSEL'S
PROPOSED CORRECTION. 770801 0000660
21 FLRA-ALJ; CASE NO. 3-CA-20115 NOVEMBER 24, 1982
DIRECTOR OF ADMINISTRATION, HEADQUARTERS, U.S. AIR FORCE, RESPONDENT
AND AFGE-GAIU COUNCIL OF HEADQUARTERS, U.S. AIR FORCE LOCALS, AFL-CIO,
CHARGING PARTY
BEFORE: ISABELLE R. CAPPELLO, ADMINISTRATIVE LAW JUDGE
DECISION
THIS IS A PROCEEDING BROUGHT UNDER TITLE VII OF THE CIVIL SERVICE
REFORM ACT OF 1978, PUB.L.NO. 95-454, 92 STAT. 1192, 5 U.S.C. 7101 ET
SEQ. (SUPP. IV 1980), COMMONLY KNOWN AS THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND HEREINAFTER REFERRED TO AS THE
"STATUTE", AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER AND
PUBLISHED AT 5 CFR 2400 ET SEQ.
PURSUANT TO A CHARGE FILED ON NOVEMBER 13, 1981, THE ACTING REGIONAL
DIRECTOR, REGION III OF THE FEDERAL LABOR RELATIONS AUTHORITY
(HEREINAFTER, THE "AUTHORITY"), INVESTIGATED ALLEGATIONS OF AN UNFAIR
LABOR PRACTICE AND CHARGED VIOLATIONS OF 5 U.S.C. 7116(A)(1) AND (2), IN
A COMPLAINT DATED AUGUST 19, 1982. /1/
ON SEPTEMBER 1, 1982, RESPONDENT ADMITTED ALL RELEVANT ALLEGATIONS OF
FACT ALLEGED IN THE COMPLAINT AND MOVED FOR SUMMARY JUDGMENT, A
POSTPONEMENT OF THE HEARING, SET FOR OCTOBER 5, 1982, AND THE SETTING OF
A BRIEFING SCHEDULE.
ON SEPTEMBER 21, 1982, THE REGIONAL DIRECTOR REFERRED RESPONDENT'S
MOTION TO THIS OFFICE, PURSUANT TO 5 CFR 2423.22(B)(1).
ALSO ON SEPTEMBER 21, THE GENERAL COUNSEL FILED A CROSS MOTION FOR
SUMMARY JUDGMENT, IN WHICH SOME FACTUAL ALLEGATIONS WERE MADE IN
ADDITION TO THOSE ALLEGED IN THE COMPLAINT.
ON SEPTEMBER 22, 1982, THE OCTOBER 5 HEARING WAS CANCELLED AND A
BRIEFING SCHEDULE SET, WITH BRIEFS TO BE FILED ON OR BEFORE OCTOBER 22.
THE ORDER WAS PREMISED ON THE FACT THAT EACH PARTY HAD MOVED FOR SUMMARY
JUDGMENT "ON THE BASIS OF FACTS ALLEGED AND ADMITTED."
ON OCTOBER 20, 1982, RESPONDENT MOVED TO STRIKE LANGUAGE CONTAINED IN
THE GENERAL COUNSEL'S CROSS MOTION FOR SUMMARY JUDGMENT ON THE GROUND
THAT IT CONTAINED FACTS NOT ALLEGED AND ADMITTED IN THE PLEADINGS.
RESPONDENT ALSO DENIED THE ADDITIONAL FACTS ALLEGED IN THE CROSS MOTION.
IN THE ALTERNATIVE, RESPONDENT REQUESTED THAT THE CASE BE SET FOR A
HEARING. THE GENERAL COUNSEL HAS NOT RESPONDED TO THE RESPONDENT'S
MOTION TO STRIKE.
BOTH PARTIES FILED BRIEFS IN SUPPORT OF THEIR MOTIONS. RESPONDENT
SUBMITS THAT, EVEN ACCEPTING, AS TRUE, THE GENERAL COUNSEL'S PROFFERED
EVIDENCE IN THE CROSS MOTION FOR SUMMARY JUDGMENT, THE GENERAL COUNSEL
HAS NOT ESTABLISHED A VIOLATION BY THE PREPONDERANCE OF THE EVIDENCE.
BASED UPON THE RECORD MADE IN THIS PROCEEDING, I ENTER THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
FINDINGS OF FACT
RESPONDENT HAS ADMITTED THE FOLLOWING FACTS ALLEGED IN THE COMPLAINT:
1. THE CHARGE IN THIS CASE WAS FILED ON NOVEMBER 13, 1981 AND A COPY
SERVED ON RESPONDENT, BY CERTIFIED MAIL, ON DECEMBER 2, 1981.
2. AT ALL TIMES MATERIAL HEREIN, THE UNION HAS BEEN AND IS A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 7103(4) OF THE STATUTE.
3. AT ALL TIMES MATERIAL HEREIN, RESPONDENT HAS BEEN AND IS AN
"ACTIVITY" OF THE DEPARTMENT OF THE AIR FORCE, WHICH IS A "PRIMARY
NATIONAL SUBDIVISION" OF THE DEPARTMENT OF DEFENSE, WHICH IS AN
"AGENCY," WITHIN THE MEANING OF THOSE TERMS AS USED IN THE STATUTE.
4. DOROTHY GURLASKIE OCCUPIES THE POSITION OF FINANCIAL MANAGER,
SECTION CHIEF, AND IS A SUPERVISOR AND A MANAGEMENT OFFICIAL OF
RESPONDENT, AT ITS WASHINGTON, D.C. OFFICE.
5. ON OR ABOUT SEPTEMBER 3, 1981, AND AGAIN ON SEPTEMBER 4, 1981,
DOROTHY GURLASKIE REQUESTED TO MEET WITH EMPLOYEES ALMA MORSELL TO
DISCUSS MORSELL'S PERFORMANCE APPRAISAL.
6. MORSELL REFUSED TO PARTICIPATE IN EITHER MEETING WITHOUT UNION
REPRESENTATION.
7. ON OR ABOUT SEPTEMBER 9, 1981, GURLASKIE GAVE MORSELL AN ORAL
ADMONISHMENT FOR REFUSING TO DISCUSS THE PERFORMANCE APPRAISAL ON
SEPTEMBER 3, 1981, FOR LEAVING GURLASKIE'S PRESENCE BEFORE RELEASED ON
SEPTEMBER 3, 1981, AND FOR REFUSING A DIRECT ORDER ON SEPTEMBER 4, 1981.
ADDITIONAL ALLEGATIONS OF FACT BY GENERAL COUNSEL NOT
ADMITTED BY RESPONDENT
A. THE APPRAISALS TO BE DISCUSSED AT THE MEETINGS ON SEPTEMBER 3 AND
4, 1981, WERE IN FACT REAPPRAISALS BEING MADE PURSUANT TO A "GRIEVANCE
RESOLUTION," SEE PAGE 1 OF THE GENERAL COUNSEL'S CROSS MOTION.
B. THE "GRIEVANCE RESOLUTION" OCCURRED AT A STEP 3 GRIEVANCE
PROCEEDING. COLONEL CAREY, ACTING ON BEHALF OF RESPONDENT, ADVISED ALMA
MORSELL, ON AUGUST 26, 1981, THAT HE HAD INSTRUCTED THE PERSONNEL OFFICE
"TO REMOVE THE APPRAISAL YOU ARE GRIEVING FROM YOUR OFFICIAL PERSONNEL
FOLDER," THAT HE HAD REQUESTED HER SUPERVISORS "TO REACCOMPLISH YOUR
APPRAISAL," AND THAT MS. MORSELL HAD "THE RIGHT TO GRIEVE THE NEW
APPRAISAL UNDER THE PROVISIONS OF THE NEGOTIATED GRIEVANCE PROCEDURE."
SEE EXHIBIT 3 TO THE GENERAL COUNSEL'S CROSS MOTION.
DISCUSSION AND CONCLUSIONS
ASSUMING, ARGUENDO, THAT ALLEGATIONS OF FACT A AND B, ABOVE, ARE
TRUE, THE GENERAL COUNSEL HAS NOT DEMONSTRATED THAT VIOLATIONS OF THE
STATUTE HAVE OCCURRED.
THE GENERAL COUNSEL SEES AS "THE PRIMARY QUESTION," IN THIS CASE, THE
RESOLUTION OF WHETHER THE PROPOSED MEETINGS "WOULD HAVE CONSTITUTED A
FORMAL DISCUSSION CONCERNING A GRIEVANCE WITHIN THE MEANING OF SECTION
7114(A)(2)(A) OF THE STATUTE." /2/ SEE PAGE 3 OF THE MEMORANDUM TO THE
ADMINISTRATIVE LAW JUDGE ON BEHALF OF THE COUNSEL FOR THE GENERAL
COUNSEL, HEREINAFTER REFERRED TO AS THE "GC MEMO." IT IS THE GENERAL
COUNSEL'S POSITION THAT "THE PROPOSED MEETINGS WERE PART AND PARCEL OF
THE GRIEVANCE RESOLUTION AND THUS WOULD HAVE CONSTITUTED 'FORMAL
DISCUSSIONS' OF THE GRIEVANCE WITHIN THE MEANING OF SECTION
1114(A)(2)(A) OF THE STATUTE." IBID. THE FACTS UPON WHICH THE GENERAL
COUNSEL CHOOSES TO RELY, HOWEVER, INDICATE THAT THE GRIEVANCE PROCEDURE
WAS FINISHED.
ALL OF THE CASES CITED BY THE GENERAL COUNSEL, AT PAGE 4 OF THE
BRIEF, INVOLVE SITUATIONS WHERE THE GRIEVANCE PROCEDURE WAS ONGOING.
AND THE AUTHORITY DECISIONS CITED WHICH INVOLVE 5 U.S.C. 7114(A)(2)(A)
WERE DECIDED ON RECORDS WHICH HAD SUFFICIENT FACTS TO DETERMINE WHETHER
THE MEETINGS WERE "FORMAL" IN NATURE. THUS, IN INTERNAL REVENUE SERVICE,
FRESNO, CALIFORNIA, 7 FLRA NO. 54, 7 FLRA 371 (1981), THE AUTHORITY WAS
ABLE TO FIND THE FOLLOWING ASPECTS OF FORMALITY-- THE MEETING WAS HELD
IN A CONFERENCE ROOM, WAS SCHEDULED IN ADVANCE, AND WAS ATTENDED BY TWO
MANAGEMENT OFFICIALS. IN OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS,
SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 10 FLRA NO. 36, 10
FLRA 172 (1982), SEE THE LANGUAGE: "AS TO FORMALITY, THE AUTHORITY
NOTES SPECIFICALLY THAT THE MEETINGS WERE STRUCTURED IN ACCORDANCE WITH
THE SPECIFIC REQUIREMENTS OF THE NEGOTIATED GRIEVANCE PROCEDURE AND THAT
RECORDS OF THE MEETING WERE MADE AND COPIES GIVEN TO (THE EMPLOYEE)" (10
FLRA AT 177).
ON THE SPARSE RECORD OF THIS CASE, EVEN INCLUDING THE FACTS PROFFERED
BY THE GENERAL COUNSEL IN THE CROSS MOTION, THERE IS NOT ENOUGH EVIDENCE
UPON WHICH TO CONCLUDE THAT THE MEETINGS WERE TO BE "FORMAL" IN NATURE.
SEE DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF FIELD OPERATIONS, SAN FRANCISCO REGION, 10
FLRA NO. 25, 10 FLRA 120 (1982) WHERE THE AUTHORITY DISMISSED A
COMPLAINT WHERE "THE STIPULATED RECORD DID NOT CONTAIN ENOUGH SPECIFIC
EVIDENCE ABOUT THE MEETINGS TO ENABLE THE AUTHORITY TO DETERMINE WHETHER
THEY WERE 'FORMAL' IN NATURE" (10 FLRA AT 124). SPECIFICALLY, THE
AUTHORITY EXPRESSED A NEED TO KNOW:
(1) WHETHER ANY OTHER MANAGEMENT REPRESENTATIVES (OTHER THAN AN
APPARENT FIRST-LINE
SUPERVISOR) ATTENDED THE MEETING; (2) WHERE THE MEETING TOOK PLACE
(I.E., IN THE SUPERVISOR'S
OFFICE OR ELSEWHERE); (3) HOW LONG THE MEETING LASTED; (4) HOW THE
MEETING WAS CALLED (I.E.,
WITH FORMAL ADVANCE WRITTEN NOTICE OR MORE SPONTANEOUSLY AND
INFORMALLY; (5) WHETHER A FORMAL
AGENDA WAS ESTABLISHED FOR THE MEETING; (6) WHETHER EMPLOYEE
ATTENDANCE WAS MANDATORY; OR (7)
THE MANNER IN WHICH THE MEETING WAS CONDUCTED (I.E., WHETHER THE
EMPLOYEES' IDENTITIES AND
COMMENTS WERE NOTED OR TRANSCRIBED).
10 FLRA AT 124.
HERE, THE GENERAL COUNSEL NOTES ONLY THAT "THE FIRST-LINE SUPERVISOR
MS. GURLASKIE WAS RESPONSIBLE FOR HOLDING THE PROPOSED MEETINGS AND IT
WAS MANDATORY FOR THE EMPLOYEE TO ATTEND" (GC MEMO AT PAGE 4, FN. 3).
EVEN ACCEPTING THESE ALLEGATIONS AS TRUE, I AM STILL LEFT WITH LITTLE
BASIS FOR DETERMINING THE "FORMAL" NATURE OF THE PROPOSED MEETINGS. ON
THE FACTS OF RECORD, THE INTENT COULD HAVE BEEN TO HOLD A BRIEF,
IMPROMPTU MEETING, AT THE DESK OF THE EMPLOYEE, WITH NO WRITTEN SUMMARY
TO BE PREPARED AND NO FINAL DECISION TO BE MADE. SUCH A MEETING WOULD
FALL SHORT OF QUALIFYING FOR THE STATUS OF A "FORMAL DISCUSSION," WITH
ITS CONCOMITANT RIGHT TO UNION REPRESENTATION.
THE GENERAL COUNSEL'S ENTIRE CASE RESTS ON THE PROPOSITION THAT MS.
MORSELL WAS "ENTITLED TO REPRESENTATION AT THE PROPOSED MEETINGS, AND
REFUSED TO ATTEND THE MEETINGS WHEN HER REQUEST FOR REPRESENTATION WAS
DENIED," AND THE ARGUMENT THAT "RESPONDENT'S SUBSEQUENT ISSUANCE OF AN
ORAL ADMONISHMENT TO THE EMPLOYEE FOR HER REFUSAL TO ATTEND THE PROPOSED
MEETINGS IS VIOLATIVE OF SECTIONS 7116(A)(1) AND (2) OF THE STATUTE."
SEE PAGE 4 OF GC MEMO. NO OTHER BASIS FOR A VIOLATION OF THE STATUTE IS
SUGGESTED BY THE GENERAL COUNSEL, OR APPARENT FROM THE RECORD.
THUS, FOR FAILURE TO ESTABLISH, BY A PREPONDERANCE OF THE EVIDENCE,
THAT A "FORMAL DISCUSSION" WAS TO TAKE PLACE AT THE MEETINGS IN
QUESTION, THE GENERAL COUNSEL'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD
BE DENIED AND THE COMPLAINT DISMISSED.
THIS RESOLUTION RENDERS UNNECESSARY A RESOLUTION OF THE ISSUES RAISED
IN RESPONDENT'S MOTIONS.
ULTIMATE FINDINGS AND RECOMMENDED ORDER
THE GENERAL COUNSEL HAS FAILED TO SHOW, BY A PREPONDERANCE OF THE
EVIDENCE, THAT THE ALLEGED STATUTORY VIOLATIONS HAVE OCCURRED.
ACCORDINGLY, IT IS ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
DISMISSED.
/1/ 5 U.S.C. 7116 PROVIDES, IN PERTINENT PART, THAT:
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; (OR)
(2) TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION
BY DISCRIMINATION IN
CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF
EMPLOYMENT; . . . .
/2/ SECTION 7114(A)(2)(A) PROVIDES:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE PRESENT AT --
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OF THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
GORDON B. FINLEY, J., LT. COL., ATTORNEY FOR RESPONDENT
PATRICIA EANET DRATCH, ATTORNEY FOR THE GENERAL COUNSEL FEDERAL LABOR
RELATIONS AUTHORITY 770801 0000650
21 FLRA-ALJ; CASE NO. 1-CA-20112 OCTOBER 21, 1982
U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C., RESPONDENT
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3428, CHARGING
PARTY
BEFORE: FRANCIS E. DOWD, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, HEREIN REFERRED TO AS THE STATUTE, 92 STAT. 1191, 5
C.F.R. SEC. 7101, ET SEQ. IT WAS INSTITUTED BY THE REGIONAL DIRECTOR OF
THE FIRST REGION OF THE FEDERAL LABOR RELATIONS AUTHORITY BY THE
ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING DATED JULY 9, 1982. THE
COMPLAINT WAS ISSUED FOLLOWING AN INVESTIGATION OF AN UNFAIR LABOR
PRACTICE CHARGE FILED ON FEBRUARY 12, 1982 BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3428, AFL-CIO, HEREIN REFERRED TO AS THE
UNION. THE COMPLAINT ALLEGES THAT THE U.S. ENVIRONMENTAL PROTECTION
AGENCY (WASHINGTON, D.C.), HEREIN REFERRED TO AS THE RESPONDENT OR EPA,
HAS SINCE ON OR ABOUT JANUARY 25, 1982, AND CONTINUING TO DATE, FAILED
OR REFUSED TO COMPLY WITH THE PROVISIONS OF 5 U.S.C. 7131 BY FAILING TO
PAY TRAVEL AND PER DIEM EXPENSES FOR THE UNION CHIEF NEGOTIATOR WHO WAS
ON OFFICIAL TIME FROM NOVEMBER 8, 1981 TO NOVEMBER 22, 1981 FOR MID-TERM
NEGOTIATIONS WITH THE ACTIVITY. BY THE FOREGOING CONDUCT, IT IS ALLEGED
THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE.
RESPONDENT DENIES ANY VIOLATION AND ASSERTS THAT IT HAD AN AGREEMENT
WITH THE UNION TO NEGOTIATE AT THE DUTY LOCATION OF THE UNION-SELECTED
NEGOTIATOR, THAT THE UNION DELIBERATELY AND WILLFULLY SOUGHT TO MISLEAD
RESPONDENT SO AS TO ABROGATE THAT AGREEMENT, AND BY SO DOING HAS
INITIATED THIS PROCEEDING WITH CONSIDERABLY LESS THAN "CLEAN HANDS."
FURTHER, RESPONDENT ARGUES THAT, IN ANY EVENT, THE AUTHORITY SHOULD
RECONSIDER AND REVERSE ITS POLICY IN INTERPRETATION AND GUIDANCE, 2 FLRA
NO. 31 REQUIRING PAYMENT OF TRAVEL AND PER DIEM EXPENSES.
A HEARING WAS HELD IN BOSTON, MASSACHUSETTS, AT WHICH TIME THE
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO
ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE
ORALLY. BRIEFS FILED BY THE GENERAL COUNSEL AND RESPONDENT HAVE BEEN
DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING MY
EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, AND
FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMEND ORDER.
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN, THE UNION HAS BEEN, AND IS, A LABOR
ORGANIZATION WITHIN THE MEANING OF 5 U.S.C. 7103(A)(4) OF THE STATUTE.
2. AT ALL TIMES MATERIAL HEREIN, RESPONDENT HAS BEEN, AND IS, AN
AGENCY WITHIN THE MEANING OF SECTION 7103(A)(3) OF THE STATUTE. THORNE
W. CHAMBERS IS THE LABOR RELATIONS OFFICER FOR RESPONDENT.
3. AT ALL TIMES MATERIAL, THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HAS BEEN, AND IS, THE CERTIFIED EXCLUSIVE
REPRESENTATIVE OF NATIONAL CONSOLIDATED UNITS OF CERTAIN EMPLOYEES OF
RESPONDENT. JAMES JONES IS A REPRESENTATIVE OF THE AFGE HEADQUARTERS IN
WASHINGTON, D.C. HE IS NOT AN EMPLOYEE OF RESPONDENT.
4. HAROLD L. DODSON IS THE PRESIDENT OF THE NATIONAL EPA COUNCIL OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ALSO REFERRED TO AS COUNCIL
NO. 238. HE IS AN EMPLOYED BY RESPONDENT IN THE WASHINGTON, D.C. OFFICE
AS AN ENVIRONMENTAL PROTECTION SPECIALIST. BARBARA WHITE IS EXECUTIVE
VICE PRESIDENT FOR COUNCIL NO. 238, AND PRESIDENT OF LOCAL 3428 IN
BOSTON WHERE SHE WORKS AS A CLERK TYPIST IN THE WASTE MANAGEMENT
DIVISION OF EPA. ROBERT DAVIS OF RESEARCH TRIANGLE PARK, NORTH CAROLINA
IS FIRST VICE PRESIDENT OF THE COUNCIL AND APPARENTLY (TR. 30) AN
EMPLOYEE OF RESPONDENT. DANIEL KEARNEY IS A NATIONAL VICE PRESIDENT FOR
THE FIRST DISTRICT IN AFGE'S REGION 1. HE IS NOT AN EMPLOYEE OF
RESPONDENT.
5. ON JULY 31, 1981, RESPONDENT NOTIFIED THE UNION OF A PROPOSED
CHANGE IN ITS REDUCTION-IN-FORCE (RIF) PROCEDURES. BY LETTER DATED JULY
20, JOHN MULHOLLAND, DIRECTOR OF THE UNION'S LABOR MANAGEMENT SERVICES
DEPARTMENT REPLIED BY ASKING THORNE CHAMBERS TO CONTACT DODSON DIRECTLY
TO OBTAIN THE NAMES OF THE UNION'S REPRESENTATIVES FOR GROUND RULES
SESSIONS. IN THIS LETTER, MULHOLLAND SUGGESTED THAT EACH PARTY
DESIGNATED THREE REPRESENTATIVES.
6. BY LETTER OF JULY 29, CHAMBERS WROTE TO DODSON AND ADVISED HIM
THAT ONLY ONE PERSON WOULD BE REPRESENTING THE AGENCY IN NEGOTIATIONS.
CHAMBERS REQUESTED DODSON TO ADVISE HIM OF THE "NAME AND LOCATION OF THE
UNION'S EMPLOYEE REPRESENTATIVE" AND INVITED SPECIFIC WRITTEN PROPOSALS
CONCERNING THE RIF PROCEDURES. SUBSEQUENTLY, DODSON SUBMITTED PROPOSALS.
BY LETTER DATED SEPTEMBER 23, RESPONDENT ADVISED MR. DODSON HIS
PROPOSALS WERE UNACCEPTABLE AND REITERATED THAT IT WOULD HAVE ONLY ONE
DESIGNATED REPRESENTATIVE. ADDITIONALLY, RESPONDENT PROPOSED
NEGOTIATIONS TAKE PLACE AT THE DUTY LOCATION OF THE EMPLOYEE
REPRESENTATIVE. /1/
7. RESPONDENT'S LETTER OF SEPTEMBER 23, DISCUSSED ABOVE, WAS
DELIVERED BY HAND TO DODSON IN HIS OFFICE AT APPROXIMATELY 2:00 P.M.
THE SAME DATE. DODSON THEN WENT TO CHAMBERS' OFFICE TO DISCUSS
PROCEEDING WITH THE NEGOTIATIONS. AT FIRST, DODSON INFORMED CHAMBERS
THAT ROBERT DAVIS OF NORTH CAROLINA WOULD REPRESENT THE UNION. TO THIS
CHAMBERS REPLIED THAT IN THAT CASE THE MEETING WOULD BE HELD IN RALEIGH
SO THAT RESPONDENT WOULD AVOID PAYING TRAVEL AND PER DIEM AND WOULD
AVOID ANY POTENTIAL LITIGATION ON THE TRAVEL AND PER DIEM ISSUE. /2/
ALTHOUGH DODSON WAS NOT PLEASED WITH RESPONDENT'S POSITION, CHAMBERS
CREDIBLY TESTIFIED THAT DODSON ACQUIESCED. /3/ TWENTY MINUTES AFTER HE
LEFT CHAMBERS' OFFICE, DODSON RETURNED AND, WHILE STILL NOT PLEASED WITH
RESPONDENT'S POSITION, INDICATED THAT HE (RATHER THAN DAVIS) WOULD
REPRESENT THE UNION AND THAT THE NEGOTIATIONS WOULD THEREFORE TAKE PLACE
IN WASHINGTON (RATHER THAN RALEIGH). HOWEVER, DODSON ADDED A POSTSCRIPT
THAT HE HAD TO TALK TO AN UNNAMED "SOMEONE" BEFORE MAKING A FINAL
DECISION. ABOUT TWENTY TO THIRTY MINUTES LATER DODSON RETURNED AND
NOTIFIED CHAMBERS THAT BARBARA WHITE WOULD REPRESENT THE UNION. /4/
CHAMBERS RESPONDED THAT HE WOULD BE THE RESPONDENT'S REPRESENTATIVE AND
THE NEGOTIATIONS WOULD THEREFORE BE HELD IN BOSTON. THE APPOINTMENT OF
WHITE WAS CONFIRMED IN WRITING THE FOLLOWING DAY IN A LETTER DATED
SEPTEMBER 25 (RESP. EXH. NO. 4). I NOTE THAT THIS LETTER IS VERY CAREFUL
PHRASED. THUS, INSTEAD OF "AGREEING" TO THE AGENCY'S PROPOSAL AS TO THE
SITE OF BARGAINING, THE LETTER "PROPOSES" THAT BARGAINING BE HELD IN
BOSTON (AS IT IF WERE THE UNION'S IDEA). I ASKED DODSON IF HE EVER
RECEIVED A REPLY TO THIS "PROPOSAL" AND HE REPLIED THAT HE DIDN'T
REMEMBER. ALTHOUGH THE LETTER CONTAINS VARIOUS PROPOSALS, IT DOES NOT
CONTAIN ANY PROTEST, COUNTERPROPOSAL, OR STATED DISAGREEMENT WITH THE
AGENCY'S POSITION THAT BARGAINING SESSIONS WILL BE HELD AT THE LOCATION
OF THE UNION'S DESIGNATED REPRESENTATIVE. /5/
8. NEGOTIATIONS ON GROUND RULES TOOK PLACE IN BOSTON ON OCTOBER 8 AND
9. CHAMBERS REPRESENTED RESPONDENT; WHITE REPRESENTED THE UNION. ALSO
PRESENT FOR THE UNION WAS KEARNEY WHO, AS NOTED ABOVE, IS NOT AN
EMPLOYEE OF RESPONDENT. IT IS NOT CLEAR WHETHER THESE NEGOTIATIONS WERE
LIMITED TO FORMULATION OF GROUND RULES OR WHETHER THEY INVOLVED
NEGOTIATIONS OF THE RIF PROCEDURES. (TR. 25 LINES 2-9). IN AN EVENT,
NEITHER PARTY CHOSE TO MAKE THE GROUND RULES PART OF THIS RECORD.
9. BY LETTER DATED OCTOBER 9, THE COUNCIL REPLACED WHITE WITH COUNCIL
PRESIDENT DODSON WHOSE DUTY LOCATION IS WASHINGTON. ON OCTOBER 14, 21,
AND 28, NEGOTIATIONS WERE HELD IN WASHINGTON. CHAMBERS REPRESENTED THE
RESPONDENT; DODSON REPRESENTED THE UNION. JONES, AN EMPLOYEE OF AFGE,
ALSO WAS PRESENT. ON OCTOBER 29, CHAMBERS REQUESTED ASSISTANCE FROM
FEDERAL MEDIATOR, CHARLES SCOTT.
10. ON NOVEMBER 4, CHAMBERS, DODSON AND JONES MET WITH FEDERAL
MEDIATOR SCOTT IN WASHINGTON. AT THIS BRIEF MEETING, THE PARTIES
SCHEDULED CONSECUTIVE-DAY NEGOTIATIONS TO COMMENCE NOVEMBER 9.
11. AT THE BEGINNING OF THE NOVEMBER 9 MEETING, CHAMBERS WAS ADVISED
THAT COUNCIL PRESIDENT DODSON WAS ILL. CHAMBERS CREDIBLY TESTIFIED THAT
HE WAS NOT ADVISED WHO WAS REPLACING DODSON AS THE UNION'S OFFICIAL
SPOKESPERSON. /6/ REPRESENTING THE UNION WERE AFGE REPRESENTATIVE JONES
OF WASHINGTON WHO HAD BEEN PRESENT AT THE FOUR PRECEDING MEETINGS, DAVIS
FROM RALEIGH, NORTH CAROLINA, AND WHITE FROM BOSTON, MASSACHUSETTS.
ACCORDING TO WHITE, HER ORIGINAL PURPOSE IN COMING TO WASHINGTON WAS
TO ASSIST DODSON IN PREPARING FOR THE NEGOTIATIONS. SHE PAID HER OWN
EXPENSES AND WAS ON ANNUAL LEAVE. HER ROLE "CHANGED" ON MONDAY MORNING
NOVEMBER 9 WHEN JONES TOLD HER SHE WAS "REPLACING" DODSON WHO HAD AN EYE
INJURY. /7/ IT IS NOT CLEAR FROM THE EVIDENCE WHETHER THERE WAS A LIMIT
ON THE NUMBER OF UNION REPRESENTATIVES WHICH WOULD HAVE PRECLUDED HER
ATTENDANCE AT NEGOTIATIONS, OR WHETHER SHE WOULD HAVE BEEN THE FOURTH
UNION REPRESENTATIVE AT THE NEGOTIATIONS.
THE NEGOTIATIONS CONTINUED ON THE FOLLOWING DATES: NOVEMBER 9, 10,
12, 13, 16, 18, 19, AND 20. IN ALL THESE MEETINGS JONES, DAVIS AND WHITE
REPRESENTED THE UNION. DODSON NEVER MADE AN APPEARANCE. WHITE ADMITS
(TR. 35) THAT JONES WAS INVOLVED IN EXTENSIVE CONVERSATIONS AND
ARGUMENTS WITH CHAMBERS BUT WHEN IT CAME TO ACTUALLY SIGNING OFF ON
ARTICLES THIS WAS DONE BY HERSELF OR DAVIS. ACCORDING TO CHAMBERS, WHOM
I CREDIT JONES DID ALL THE NEGOTIATING AND WHITE WAS MORE LIKE AN
ASSISTANT TO HIM, ASKING QUESTIONS OR ELABORATING OR VARIOUS POINTS.
WHILE IT IS TRUE THAT HE SIGNED OFF WITH WHITE AND DAVIS, NO DOCUMENT
WAS SIGNED OFF UNTIL JONES AND CHAMBERS HAD REACHED AGREEMENT (TR. 32).
BASED UPON CHAMBERS' ACCOUNT OF THE NEGOTIATIONS AND THE MANNER IN WHICH
THE THREE UNION REPRESENTATIVES PARTICIPATED THEREIN, I CONCLUDE THAT
JONES GAVE THE APPEARANCE OF BEING THE UNION'S CHIEF SPOKESPERSON.
ACCORDING TO WHITE, SHE WAS CONTACTED BY HER BOSS DURING NEGOTIATIONS
TO DETERMINE WHEN SHE WAS RETURNING TO BOSTON. WHEN IT WAS DECIDED THAT
THE NEGOTIATIONS WOULD CONTINUE INTO A SECOND WEEK, SHE INDIRECTLY
ADVISED HER BOSS THAT SHE WOULD BE STAYING IN WASHINGTON A SECOND WEEK.
HOWEVER, EVEN AT THAT, THERE WAS NO SPECIFIC MENTION OF HER REQUESTING
OFFICIAL TIME OR BEING THE UNION'S CHIEF SPOKESPERSON. FINALLY, ON
NOVEMBER 20, IN THE AFTERNOON OF THE LAST DAY OF NEGOTIATION JONES, "IN
WRAPPING UP THE SESSION INDICATED" FOR THE FIRST TIME TO CHAMBERS THAT
WHITE SHOULD BE THE INDIVIDUAL FOR OFFICIAL TIME PURPOSES. /8/
12. AFTER RETURNING TO BOSTON, WHITE APPLIED FOR OFFICIAL TIME,
TRAVEL AND PER DIEM EXPENSES. THE REQUEST WAS DENIED. LATER, RESPONDENT
CHANGED ITS MIND WITH RESPECT TO OFFICIAL TIME AND GRANTED THAT REQUEST.
THE COMPLAINT DOES NOT ALLEGE THAT DAVIS REQUESTED OR WAS DENIED
OFFICIAL TIME AND/OR EXPENSES FOR TRAVEL AND PER DIEM.
ISSUE
WHETHER RESPONDENT HAD AN OBLIGATION, WHICH IT FAILED TO FULFILL IN
VIOLATION OF SECTION 7116(A)(1) AND (8), TO PAY BARBARA WHITE FOR HER
TRAVEL AND PER DIEM EXPENSES TO ATTEND MID-TERM CONTRACT NEGOTIATIONS
FROM NOVEMBER 9 THROUGH NOVEMBER 20, 1981.
DISCUSSION AND CONCLUSIONS OF LAW
A. APPLICABILITY OF SECTION 7131(A) OF THE STATUTE.
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SECTION
7131(A) PROVIDES:
ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE AUTHORIZED OFFICIAL
TIME FOR SUCH PURPOSES,
INCLUDING ATTENDANCE AT IMPASSE PROCEEDINGS, DURING THE TIME THE
EMPLOYEE OTHERWISE WOULD BE
IN A DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL TIME IS
AUTHORIZED UNDER THIS
SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED AS
REPRESENTING THE AGENCY
FOR SUCH PURPOSES.
IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, THE AUTHORITY
EXPANDED UPON THE MEANING AND APPLICATION OF SECTION 7131(A) OF THE
STATUTE. IT CONCLUDED THAT THE OFFICIAL TIME PROVISIONS ENCOMPASS ALL
NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN AN EXCLUSIVE
REPRESENTATIVE AND AN AGENCY, "REGARDLESS OF WHETHER SUCH NEGOTIATIONS
PERTAIN TO THE NEGOTIATION OR RENEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT." THE AUTHORITY ALSO CONCLUDED THAT EMPLOYEES REPRESENTING AN
EXCLUSIVE REPRESENTATIVE ARE ENTITLED TO RECEIVE OFFICIAL TIME DURING
THE TIME THEY WOULD OTHERWISE BE IN A DUTY STATUS UNDER SECTION 7131(A)
OF THE STATUTE, WHICH ENTITLEMENT INCLUDES PAYMENTS BY THE AGENCY "FOR
THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES." IN REACHING THE
FOREGOING CONCLUSION, THE AUTHORITY INTERPRETED THE LANGUAGE AND
LEGISLATIVE HISTORY OF THE STATUTE INCLUDING SECTION 7101(A) WHICH
STATES THAT "LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL
SERVICE ARE IN THE PUBLIC INTEREST." FURTHER, THE AUTHORITY STATED THAT
ONLY BY AFFORDING UNION NEGOTIATORS OFFICIAL TIME, TRAVEL AND PER DIEM
EXPENSES MAY EFFECTIVE UNION REPRESENTATION COMPARABLE TO THE
REPRESENTATION OF MANAGEMENT BE ACHIEVED UNDER THE STATUTE, AND ONLY IN
THIS MATTER MAY BOTH PARTIES EFFECTIVELY FULFILL THEIR RESPECTIVE
OBLIGATIONS UNDER SECTION 7114(B) OF THE STATUTE TO MEET AT REASONABLE
TIMES AND AS FREQUENTLY AS MAY BE NECESSARY FOR GOOD-FAITH NEGOTIATIONS
ON CONDITIONS OF EMPLOYMENT.
IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA 40, THE
RESPONDENT CHALLENGED THE AUTHORITY'S VIEWS AND MADE THESE CONTENTIONS:
1. THE GUIDANCE CONTAINED IN 2 FLRA NO. 31 IS ARBITRARY AND
CAPRICIOUS, IS AN ABUSE OF
DISCRETION, AND CONSTITUTES THE ESTABLISHMENT OF A POLICY WHICH IS
BEYOND THE STATUTORY
AUTHORITY OF THE AUTHORITY.
2. THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES PURSUANT TO 2 FLRA NO.
31 IS CONTRARY TO
LAW IN THAT MONEY HAS NOT BEEN SPECIFICALLY APPROPRIATED FOR THIS
PURPOSE.
THE AUTHORITY'S REJECTION OF THESE CONTENTIONS WAS SUBSEQUENTLY
SUSTAINED BY THE NINTH CIRCUIT COURT OF APPEALS. /9/ HOWEVER, THE SECOND
AND EIGHTH CIRCUIT COURTS HAVE NOT ADOPTED THE AUTHORITY'S VIEWS AND
BOTH COURTS REVERSED THE AUTHORITY. /10/ SINCE THEN, THE AUTHORITY HAS
ISSUED A NUMBER OF DECISIONS IN WHICH IT CONTINUES TO RELY UPON AND CITE
INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, AS WELL AS BUREAU OF
ALCOHOL, 4 FLRA NO. 40. FROM THE FOREGOING IT SEEMS CLEAR TO ME THAT THE
AUTHORITY HAS DECIDED NOT TO CHANGE ITS POLICY AS A RESULT OF THE
DECISIONS OF THE SECOND AND EIGHTH CIRCUIT COURTS OF APPEALS.
THEREFORE, I MUST REJECT RESPONDENT'S REQUEST THAT I "CONSIDER THIS
MATTER ANEW" (RESP. BRIEF, AT P. 9).
B. ENTITLEMENT TO TRAVEL AND PER DIEM EXPENSES
SECTION 7131(A) ALSO STATES THAT THE NUMBER OF EMPLOYEES FOR WHOM
OFFICIAL TIME IS AUTHORIZED SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS
DESIGNATED AS REPRESENTING THE AGENCY FOR SUCH PURPOSES. IN THE PRESENT
CASE, IT WAS CLEAR FROM THE BEGINNING THAT RESPONDENT WOULD ONLY
DESIGNATE ONE AGENCY REPRESENTATIVE AND THEREFORE THE UNION WAS ONLY
ENTITLED TO THE SAME NUMBER. OF THE THREE UNION REPRESENTATIVES AT THE
NOVEMBER 9 THROUGH NOVEMBER 20 NEGOTIATIONS, TWO WERE AGENCY EMPLOYEES,
WHITE AND DAVIS. RESPONDENT GAVE OFFICIAL TIME TO WHITE, THE ONE
DESIGNATED ON NOVEMBER 20 FOR THAT PURPOSE. THUS, RESPONDENT COMPLIED
WITH THE STATUTORY MANDATE OF SECTION 7131(A) WITH RESPECT TO GRANTING
OFFICIAL TIME AND, IN VIEW OF THE AUTHORITY'S INTERPRETATION AN
GUIDANCE, 2 FLRA NO. 31, RESPONDENT ORDINARILY WOULD ALSO BE OBLIGATED
TO PAY WHITE'S TRAVEL AND PER DIEM EXPENSES. /11/
AN EXCEPTION TO THIS GENERAL POLICY HAS BEEN RECOGNIZED BY THE
AUTHORITY. IN DEPARTMENT OF HEALTH AND HUMAN SERVICES, /12/ THE
AUTHORITY STATED AS FOLLOWS:
THIS IS NOT TO SAY THAT MANAGEMENT MAY NOT BE APPROPRIATE ACTIONS
ATTEMPT TO CONTROL ITS
EXPENSES INCURRED IN NEGOTIATIONS AS, FOR EXAMPLE, THROUGH THE
ESTABLISHMENT OF MUTUALLY
AGREEABLE NEGOTIATION PROCEDURES OF GROUND RULES . . .
CITING THE ABOVE CASE AS PRECEDENT, THE AUTHORITY MORE RECENTLY
STATED IN DEPARTMENT OF THE AIR FORCE /13/ THAT:
THIS IS NOT TO SAY HOWEVER THAT AN AGENCY IS PRECLUDED FROM SEEKING
TO MITIGATE THROUGH
NEGOTIATIONS TRAVEL AND PER DIEM EXPENSES.
THE ISSUE THUS PRESENTED IS WHETHER RESPONDENT AND THE UNION ON OR
ABOUT SEPTEMBER 23, REACHES AGREEMENT ON RESPONDENT'S PROPOSAL TO
CONDUCT NEGOTIATIONS AT THE SITE OF THE UNION'S DESIGNATED SPOKESMAN.
WHILE IT IS TRUE THAT THERE IS NO WRITTEN AGREEMENT, I HAVE CONCLUDED
THAT THE PARTIES REACHED AN ORAL AGREEMENT TO BARGAIN AT THE SITE OF THE
UNION'S DESIGNATED SPOKESPERSON. WHILE MY FINDING IS ESSENTIALLY BASED
ON CREDITING CHAMBERS OVER DODSON, IT SHOULD BE NOTED THAT THE CONDUCT
OF THE UNION IS CONSISTENT WITH SUCH FINDINGS. THUS, GROUND RULES
NEGOTIATIONS WERE HELD IN BOSTON AND THIS WAS A DIRECT RESULT OF THE
UNION'S SELECTION OF WHITE. WHEN THE UNION IN WRITING CHANGED ITS
DESIGNATION TO DODSON, THE SITE OF THE NEGOTIATIONS WAS ALSO CHANGED TO
WASHINGTON. WHEN DODSON BECAME ILL, THE UNION FAILED TO IMMEDIATELY
INFORM RESPONDENT WHICH OF ITS THREE REPRESENTATIVES WAS THE OFFICIAL
SPOKESPERSON. IF THE UNION HAD INFORMED RESPONDENT ON THE FIRST DAY OF
NEGOTIATIONS THAT WHITE WAS THE OFFICIAL REPRESENTATIVE, THERE'S NO
DOUBT THAT CHAMBERS WOULD HAVE INSISTED ON CONDUCTING NEGOTIATIONS IN
BOSTON OR WOULD HAVE PROTESTED THE UNION'S FAILURE TO ADHERE TO THEIR
AGREEMENT. CLEARLY, THE UNION HAD THE BURDEN OF SPEAKING UP AND PROMPTLY
INFORMING CHAMBERS WHICH PERSON, IF ANY, WAS REPLACING DODSON. IT FAILED
TO DO SO. MOREOVER, SINCE BARBARA WHITE WAS ON ANNUAL LEAVE AND HAD NOT
SOUGHT OR OBTAINED OFFICIAL TRAVEL AUTHORIZATION TO GO TO WASHINGTON,
CHAMBERS CLEARLY WAS MISLEAD INTO ASSUMING THAT SHE WAS NOT THE OFFICIAL
SPOKESPERSON. FINALLY, THE MANNER IN WHICH JONES CONDUCTED THE
NEGOTIATIONS GAVE THE CLEAR IMPRESSION TO CHAMBERS THAT HE WAS THE CHIEF
SPOKESPERSON, ESPECIALLY SINCE HE WAS FROM AFGE HEADQUARTERS AND HAD
PARTICIPATED IN THE OCTOBER NEGOTIATIONS IN WASHINGTON IMMEDIATELY
PROCEEDING THESE SESSIONS.
THE FACT THAT THE UNION WAITED UNTIL THE END OF NEGOTIATIONS TO
INFORM CHAMBERS THAT WHITE WAS THE UNION'S OFFICIAL SPOKESPERSON
DEMONSTRATES QUITE CLEARLY TO ME, AS I'M SURE IT DID TO CHAMBERS, THAT
THE UNION WAS DELIBERATELY "PULLING A FAST ONE," TO USE AN APPROPRIATE
COLLOQUIAL EXPRESSION. BY ITS CONDUCT THE UNION SUCCESSFULLY RAISED AN
ISSUE-- ENTITLEMENT TO PER DIEM-- THAT RESPONDENT SOUGHT TO AVOID FROM
THE BEGINNING, AN ISSUE ALREADY BEFORE THE AUTHORITY IN ANOTHER UNFAIR
LABOR PRACTICE CASE. IT IS NO WONDER THAT RESPONDENT ARGUES IN ITS BRIEF
THAT THE UNION INITIATED THIS PROCEEDING WITH CONSIDERABLY LESS THAN
"CLEAN HANDS."
THE AUTHORITY HAS HELD THAT THE RIGHT TO TRAVEL AND PER DIEM EXPENSES
MAY, LIKE OTHER "STATUTORY" RIGHTS, BE WAIVED BY CLEAR AND UNMISTAKABLE
CONDUCT. /14/ DODSON'S ORAL AGREEMENT WITH CHAMBERS TO MEET AT THE SITE
OF THE UNION'S PRINCIPAL SPOKESPERSON HAD THE EFFECT OF CONSCIOUSLY
WAIVING THE RIGHT TO TRAVEL AND PER DIEM SHOULD BE UNION PREFER TO
BARGAIN AT A SITE DIFFERENT FROM WHERE ITS PRINCIPAL SPOKESPERSON WAS
LOCATED. /15/ WHAT THE UNION ATTEMPTED TO DO, BY THE CONDUCT OF ITS
REPRESENTATIVES, WAS TO VOID DODSON'S ORAL AGREEMENT WITH CHAMBERS. BUT
THE UNION KNEW THAT IF IT CONFRONTED CHAMBERS WITH THIS ISSUE ON
NOVEMBER 9, THAT BARGAINING MIGHT VERY WELL BE DELAYED, OR MADE MORE
EXPENSIVE BY A SHIFT OF THE SITE TO BOSTON. ACCORDINGLY, THE UNION
REPRESENTATIVES WAITED UNTIL NEGOTIATIONS WERE COMPLETED BEFORE
ATTEMPTING TO VOID THEIR ORAL AGREEMENT AND SQUIRM OUT OF WHAT THEY
REGARDED AS A "BAD DEAL." RESPONDENT CONTENDS THAT THE UNION MUST BE
BOUND TO ITS AGREEMENT AND THE CONSEQUENCES FOR FAILING TO ADHERE IT. I
AGREE WITH RESPONDENT.
IN VIEW OF THE FOREGOING, I FIND AND CONCLUDE THAT RESPONDENT HAS NOT
VIOLATED SECTION 7116(A)(1) AND (8) AS ALLEGED IN THE COMPLAINT.
ACCORDINGLY, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
THAT THE COMPLAINT IN CASE NO. 1-CA-20112 BE, AND IT HEREBY IS,
DISMISSED.
/1/ A THRESHOLD ISSUE IN THIS PROCEEDING IS WHETHER THE UNION AGREED
TO THIS PROPOSAL. SUBSEQUENT ACTIONS BY THE UNION SUPPORT CHAMBERS'
TESTIMONY THAT THE UNION HAD AGREED TO THIS PROPOSAL.
/2/ APPARENTLY THE AGENCY WAS INVOLVED AT THAT TIME IN LITIGATION OF
THIS ISSUE. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON,
D.C. AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
ATLANTA, GEORGIA, 10 FLRA NO. 30 (SEPTEMBER 24, 1982).
/3/ DODSON TESTIFIED AS A REBUTTAL WITNESS. HE DENIED THAT HE EVER
AGREED THAT THE UNION WOULD MEET "IN THE FUTURE" AT THE DUTY SITE OF THE
EMPLOYEE REPRESENTATIVE (TR. 42, 43). DODSON'S TESTIMONY WAS VAGUE,
UNCERTAIN AND AMBIGUOUS, WHEREAS CHAMBERS' WAS CLEAR, PRECISE AND
SPECIFIC WITH RESPECT TO DETAILS. WHILE DODSON MAY FEEL THAT HE NEVER
EXPRESSLY AGREED TO RESPONDENT'S PROPOSAL, I CONCLUDE THAT HE IMPLIEDLY
AGREED BY ACQUIESCENCE. CLEARLY, HIS ACTIONS BELIE HIS WORDS. THUS, THE
EVIDENCE SHOWS THAT EACH SUBSEQUENT MEETING BETWEEN THE PARTIES WAS HELD
AT THE SITE OF THE UNION-DESIGNATED SPOKESPERSON. THIS EVIDENCE IS
CONSISTENT WITH CHAMBERS' UNDERSTANDING OF THE AGREEMENT HE BELIEVED THE
PARTIES ARRIVED AT.
/4/ DODSON ADMITTED THAT HE DID NOT FEEL "COMFORTABLE" ABOUT
NEGOTIATING AND THAT BOTH DAVIS AND WHITE HAD MORE EXPERIENCE (TR. 411.
THIS TESTIMONY CORROBORATES CHAMBERS' TESTIMONY.
/5/ WHILE IT IS TRUE THAT THE UNION PROPOSED THAT ITS REPRESENTATIVES
BE GRANTED OFFICIAL TIME, TRAVEL AND PER DIEM, THIS PROPOSAL IS BASED
UPON AN ASSUMPTION THAT MORE THAN ONE NEGOTIATOR WOULD BE AGREED UPON,
AND THAT SOME NEGOTIATORS WOULD INCUR SUCH EXPENSES. INDEED DODSON
TESTIFIED THAT AT TIMES THE UNION HAD PROPOSED IT HAVE UP TO 10
REPRESENTATIVES, THE PRECISE NUMBER BEING A NEGOTIABLE SUBJECT,
ACCORDING TO THE UNION. (TR. 44, 45).
/6/ I HAVE REVIEWED THE TESTIMONY OF WHITE (TR. 9, LINES 12-24, TR.
34-36) AND CONCLUDE THAT CHAMBERS WAS NOT SPECIFICALLY INFORMED THAT SHE
WAS THE CHIEF SPOKESPERSON FOR THE UNION. THE MOST THAT CAN BE SAID IS
THAT CHAMBERS KNEW HE WAS DEALING WITH THREE UNION REPRESENTATIVES.
/7/ I ASSUME THAT WHITE DID NOT REQUEST OFFICIAL TIME OR APPLY FOR AN
OFFICIAL TRAVEL ORDER PRIOR TO LEAVING BOSTON. THE RECORD CONTAINS NO
EXPLANATION WHY SHE DID NOT, ON THE FIRST DAY OF NEGOTIATIONS, BRING UP
THE SUBJECT OF CONVERTING HER ANNUAL LEAVE TO OFFICIAL TIME AND PLACING
HER ON OFFICIAL TRAVEL ORDERS SO AS TO BE ELIGIBLE FOR PER DIEM AND
TRAVEL EXPENSES. IT SEEMS TO ME THAT IF HER STATUS REALLY WAS "CHANGED"
AS A RESULT OF DODSON'S ABSENCE, THEN THE LOGICAL AND NORMAL COURSE OF
ACTION WOULD HAVE BEEN TO PROMPTLY RESOLVE THE MATTER. OF COURSE, IF SHE
HAD SUGGESTED MOVING THE BARGAINING SITE TO BOSTON, THE UNION WOULD HAVE
TO PAY FOR JONES AND DAVIS TO TRAVEL TO BOSTON OR BE WITHOUT THEIR
SERVICES.
/8/ THIS FINDING IS BASED UPON THE CREDITED TESTIMONY OF CHAMBERS.
SEE ALSO RESP. EXH. NO. 6, A LETTER DATED DECEMBER 7 FROM MULHOLLAND OF
AFGE, STATING THAT ON "THURSDAY, NOVEMBER 20, MR. JONES OF OUR OFFICE
INFORMED YOU THAT MRS. WHITE WAS THE DESIGNATED UNION OFFICIAL TO
RECEIVE OFFICIAL TIME." FROM THE CONTENTS OF THE LETTER IT APPEARS THAT
CHAMBERS WAS INSISTING UPON WRITTEN NOTIFICATION OF WHITE'S DESIGNATION.
THIS IS BECAUSE THE UNION ORIGINALLY DESIGNATED, IN WRITING, WHITE TO
HANDLE THE BOSTON NEGOTIATIONS AND DODSON TO REPLACE HER FOR THE NEXT
NEGOTIATIONS IN WASHINGTON. RESPONDENT'S POINT, OF COURSE, IS THAT THE
PAST PRACTICE WAS TO DESIGNATE IN WRITING AND THIS WAS NOT DONE ON
NOVEMBER 9.
/9/ BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V. FEDERAL LABOR
RELATIONS AUTHORITY, 672 F. 2ND 732 (9TH CIR. 1982); FLORIDA NATIONAL
GUARD, 5 FLRA NO. 49 (1981), APPEAL DOCKETED, NO. 81-5466 (5TH CIR. MAY
18, 1981).
/10/ DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK
(ALBANY, NEW YORK), 7 FLRA NO. 69 (1981), REVERSED SUB NOM. DIVISION OF
MILITARY AND NAVAL AFFAIRS V. FEDERAL LABOR RELATIONS AUTHORITY, 683 F.
2D 45 (2D CIR. 1982) AND U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND
EDUCATION ADMINISTRATION, AGRICULTURE RESEARCH, NORTH CENTRAL REGION,
DAKOTAS-ALASKA AREA, 6 FLRA NO. 45 (1981), REVERSED SUB NOM. UNITED
STATES DEPARTMENT OF AGRICULTURE V. FEDERAL LABOR RELATIONS AUTHORITY,
NO. 81-1948 (8TH CIR. AUGUST 9, 1982).
/11/ THE GENERAL COUNSEL SEEMS TO ARGUE THAT RESPONDENT'S COMPLIANCE
WITH SECTION 7131 (I.E., ITS DECISION TO GRANT OFFICIAL TIME TO WHITE)
IS IN THE NATURE OF AN ADMISSION AGAINST INTEREST WITH REGARD TO THE
SEPARATE ISSUE OF ENTITLEMENT TO TRAVEL AND PER DIEM EXPENSES. I REJECT
THIS ARGUMENT.
/12/ DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV, ATLANTA, 9
FLRA NO. 150, AUGUST 20, 1982.
/13/ DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 10 FLRA NO. 53, SEPTEMBER 30,
1982.
/14/ DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5
FLRA NO. 2 (1981); DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY,
6 FLRA NO. 100 (1981).
/15/ NUCLEAR REGULATORY COMMISSION, 8 FLRA NO. 124 (MAY 20, 1982),
WHERE THE CLEAR AND UNMISTAKABLE WAIVER WAS IN WRITING, IN CONTRAST TO
THE PRESENT CASE.
THORNE W. CHAMBERS, ESQ., FOR THE RESPONDENT
BARBARA G. WHITE, FOR THE CHARGING PARTY
MARILYN Z. ROTH, ESQ., FOR THE GENERAL COUNSEL 770801 0000640
21 FLRA-ALJ; CASE NO. 9-CA-1107 DECEMBER 30, 1982
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, RESPONDENT AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, CHARGING PARTY
BEFORE: FRANCIS E. DOWD, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, HEREIN REFERRED TO AS THE STATUTE, 92 STAT. 1191, 5
U.S.C. 7101, ET SEQ. IT WAS INSTITUTED BY THE ACTING REGIONAL DIRECTOR
OF THE NINTH REGION OF THE FEDERAL LABOR RELATIONS AUTHORITY BY THE
ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING DATED DECEMBER 29, 1981.
THE COMPLAINT WAS ISSUED FOLLOWING AN INVESTIGATION OF AN UNFAIR LABOR
PRACTICE CHARGE FILED ON JUNE 26, 1981 BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN REFERRED TO AS THE UNION OR
CHARGING PARTY.
THE COMPLAINT ALLEGES THAT DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND, HEREIN THE
RESPONDENT, VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY
REFUSING TO BARGAIN WITH THE UNION ON OR ABOUT APRIL 21, 1981 OVER
PROPOSED CHANGES IN THE 1981 CLAIMS REPRESENTATIVE EXAMINATION
OPPORTUNITY VACANCY ANNOUNCEMENT (HEREINAFTER THE "CREDO ANNOUNCEMENT"),
AND BY UNILATERALLY IMPLEMENTING THE CREDO ANNOUNCEMENT ON APRIL 29,
1981. RESPONDENT'S DEFENSE IS THAT "IT DID BARGAIN, WHERE POSSIBLE, IN
GOOD FAITH, OVER THE CHANGES IN THE 1981 CREDO AND THAT ITS
IMPLEMENTATION OF SAME WAS CORRECT AND PROPER" (RESP. BRIEF, AT P. 2).
A HEARING WAS HELD IN SAN FRANCISCO, CALIFORNIA, AT WHICH TIME THE
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO
ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE
ORALLY. BRIEFS FILED BY THE GENERAL COUNSEL AND RESPONDENT HAVE BEEN
DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING MY
EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, AND
FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
STATEMENTS OF FACTS
1. AT ALL TIMES MATERIAL HEREIN, REGION IX, SAN FRANCISCO BUREAU OF
DISTRICT OFFICE OPERATIONS, SOCIAL SECURITY ADMINISTRATION, HAS BEEN A
COMPONENT OF RESPONDENT, DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION, BALTIMORE, MARYLAND. ON AUGUST 30, 1979, THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO WAS CERTIFIED AS
THE EXCLUSIVE REPRESENTATIVE OF A NATIONAL CONSOLIDATED UNIT OF
EMPLOYEES EMPLOYED BY RESPONDENT CONSISTING OF, AMONG OTHER UNITS,
EMPLOYED IN REGION IX.
2. IN MARCH OF 1981 JEFF DASTEEL WAS THE ACTING PRESIDENT OF THE
UNION REGIONAL COUNCIL. AT THAT TIME, MR. DASTEEL HEARD THAT A NEW
CLAIMS REPRESENTATIVE EXAMINATION OPPORTUNITY VACANCY ANNOUNCEMENT
(HEREINAFTER "CREDO ANNOUNCEMENT") WAS GOING TO BE OPENED. THE CREDO
ANNOUNCEMENT IS A REGION-WIDE VACANCY ANNOUNCEMENT FOR CLAIMS
REPRESENTATIVE POSITIONS IN THE FIELD OFFICE OF RESPONDENT AND IT IS
DISTRIBUTED TO ALL OFFICES IN THE REGION. IN ORDER TO BECOME A CLAIMS
REPRESENTATIVE, MEMBERS OF THE UNION BARGAINING UNIT HAVE TO APPLY FOR
SUCH POSITIONS PURSUANT TO THE CREDO ANNOUNCEMENT. THE APPLICANTS
CONSIST MOSTLY OF SERVICE REPRESENTATIVES, DATA REVIEW TECHNICIANS,
TELESERVICE CONTACT REPRESENTATIVES AND DATA TRANSCRIBERS, ALL OF WHOM
ARE IN THE BARGAINING UNIT. SOMEWHERE BETWEEN ONE THOUSAND AND FIFTEEN
HUNDRED EMPLOYEES ARE ELIGIBLE TO APPLY THROUGHOUT THE 175 INSTALLATIONS
IN THE REGION. THE CLAIMS REPRESENTATIVE POSITION ITSELF IS ALSO WITHIN
THE BARGAINING UNIT.
3. WHEN MR. DASTEEL HEARD THAT A NEW CREDO ANNOUNCEMENT WAS GOING TO
BE ISSUED HE CALLED CLARA HORVATH, DEPUTY ASSISTANT REGIONAL
COMMISSIONER FOR FIELD OPERATIONS (AND MR. DASTEEL'S MANAGEMENT CONTACT
FOR BASIC FIELD INFORMATION) AND REQUESTED HER TO PROVIDE HIM WITH A
COPY OF THE PROPOSED NEW DOCUMENT. HE RECEIVED THE DOCUMENT (GC EX. 2)
SOMETIME IN MARCH OF 1981. THE THIRD PARAGRAPH OF THIS DOCUMENT REFERS
TO CERTAIN "MAJOR CHANGES WHICH HAVE BEEN MADE," THEN DISCUSSES THESE
CHANGES, AND FINALLY ADDS THAT "ALL OTHER CHANGES WERE MINOR CHANGES IN
WORDING OR ADDING EXAMPLES IN AN EFFORT TO MAKE THINGS MORE CLEAR."
ALMOST IMMEDIATELY UPON RECEIPT OF THE DOCUMENT (GC EX. 2), MR. DASTEEL
STARTED DEVELOPING BARGAINING PROPOSALS. ON MARCH 27 HE FORWARDED HIS
PROPOSALS IN WRITING TO SALLY ANDERSON, ASSISTANT REGIONAL COMMISSIONER
OF REGION IX OF RESPONDENT (GC EX. 3; R. EX. 1). /1/ THE UNION RECEIVED
NO RESPONSE, ORALLY OR IN WRITING, TO ITS PROPOSALS.
4. ON APRIL 21 MR. DASTEEL AND THE OTHER MEMBERS OF THE UNION
NEGOTIATING TEAM MET WITH THE AGENCY NEGOTIATING TEAM INCLUDING CHIEF
SPOKESPERSON MARGE LEE, CHUCK EMERY AND VICKI TYRRELL. THIS MEETING,
HOWEVER, HAD BEEN SET UP TO ENGAGE IN NEGOTIATIONS PURSUANT TO THE
SETTLEMENT OF TWO PRIOR UNFAIR LABOR PRACTICE CASES, 9-CA-489 AND
9-CA-496, CONCERNING THE PREVIOUS YEAR'S CREDO 5 ANNOUNCEMENT.
RESPONDENT HAD CLOSED THE 1980 CREDO ANNOUNCEMENT EARLY (WHICH HAD
RESULTED IN THE UNFAIR LABOR PRACTICES BEING FILED). THE PARTIES ALSO
HAD INTENDED TO NEGOTIATE REGARDING CERTAIN ACTION THE REGIONAL
PERSONNEL OFFICE HAD TAKEN, INCLUDING A CHANGE IN DUES REVOCATION AND
THE CONVERSION OF PART-TIME EMPLOYEES TO FULL-TIME EMPLOYEES WHEN THERE
IS A FREEZE ON CONVERSIONS. THE UNION HAD PREVIOUSLY SUBMITTED PROPOSALS
ON THIS SUBJECT (GC EX. 6).
5. IN ADDITION TO THE FOREGOING, IT WAS MR. DASTEEL'S UNDERSTANDING
THAT THE UNION'S 1981 CREDO PROPOSALS HAD BEEN ADDED TO THE AGENDA AND
THAT THE PARTIES WOULD ALSO BE NEGOTIATING ON THE 1981 CREDO
ANNOUNCEMENT AS WELL. /2/ HOWEVER, UPON ARRIVING AT THE BARGAINING TABLE
ON APRIL 21, MR. DASTEEL WAS INFORMED BY MARGE LEE THAT MANAGEMENT WOULD
NOT BARGAIN OVER ANY OF THE PROPOSALS DIRECTED TO THE 1981 CREDO
ANNOUNCEMENT. THE EXPLANATION OFFERED BY MS. LEE AS TO WHY MANAGEMENT
WOULD NOT BARGAIN WAS THAT A WAIVER OF THE UNION'S RIGHT TO NEGOTIATE
EXISTED IN THE COLLECTIVE BARGAINING AGREEMENT. THIS WAS THE ONLY
EXPLANATION OFFERED AT THE TIME. /3/
6. ON APRIL 21 THE PARTIES DID ENTER INTO NEGOTIATIONS MANDATED BY
THE SETTLEMENT OF THE PRIOR UNFAIR LABOR PRACTICES AS WELL AS THE
REGIONAL PERSONNEL OFFICE MATTERS. THEY DISCUSSED A CHANGE IN THE DUES
REVOCATION PROCEDURES. THEY NEGOTIATED REGARDING THE OPENING AND CLOSING
DATES OF THE CREDO ANNOUNCEMENT BASED ON THE PRIOR CREDO ANNOUNCEMENT
HAVING BEEN CLOSED TOO EARLY THE PREVIOUS YEAR. THE PARTIES ALSO
NEGOTIATED AN AGREEMENT CONCERNING THE CONVERSION OF PART-TIME EMPLOYEES
TO FULL-TIME WHEN THERE IS A FREEZE ON CONVERSIONS, AND ABOUT WHAT
HAPPENS TO THOSE EMPLOYEES. THE PARTIES ALSO NEGOTIATED A PLAN FOR WHAT
WOULD HAPPEN TO THE APPLICATIONS HELD OVER FROM THE OLD CREDO
ANNOUNCEMENT (THE ONE IMMEDIATELY PRECEDING THE 1981 CREDO ANNOUNCEMENT)
IN THE EVENT THERE WAS A DELAY IN IMPLEMENTING THE 1981 ANNOUNCEMENT. IN
THIS REGARD, THE PARTIES AGREED THAT OLD APPLICATIONS COULD BE USED UP
TO NINETY DAYS DURING A BLANK PERIOD BETWEEN THE CLOSE OF THE 19801
ANNOUNCEMENT AND THE BEGINNING OF THE 1981 ANNOUNCEMENT. THIS
ARRANGEMENT WAS MADE AS A PRECAUTION BECAUSE MS. LEE HAD THREATENED THAT
IF THE AGENCY WERE REQUIRED TO BARGAIN REGARDING THE 1981 CREDO
ANNOUNCEMENT IT WOULDN'T USE ONE AT ALL. ACCORDING TO DASTEEL,
RESPONDENT NEVER ALTERED ITS POSITION ON THE 1981 CREDO AND DID NOT
BARGAIN THEREON.
7. THE NEGOTIATIONS THAT OCCURRED LASTED FROM 10:00 A.M. TO 4:00 P.M.
ON APRIL 21. THE PARTIES RECONVENED ON THE MORNING OF APRIL 22 AND
COMPLETED THEIR DISCUSSIONS. ON APRIL 22, 1981, MARGE LEE AND JEFF
DASTEEL EXECUTED A WRITTEN DOCUMENT (R EX. 2) REFLECTING THE AGREEMENTS
REACHED BY THE PARTIES CONCERNING THE ABOVE DESCRIBED NEGOTIATIONS.
DASTEEL SPECIFICALLY ATTRIBUTED TO "MANAGEMENT" A STATEMENT THAT THE
AGREEMENT WAS DIRECTED SOLELY TO THE SCOPE OF THE NEGOTIATIONS STEMMING
FROM THE UNFAIR LABOR PRACTICE CASES AND THE PERSONNEL MATTERS AND THE
NEGOTIATIONS WERE SIMILARLY NARROWLY DIRECTED TO THOSE ISSUES.
8. RESPONDENT CALLED NO WITNESSES EVEN THOUGH THE LOGICAL WITNESS TO
TESTIFY ABOUT THE APRIL 22-21 MEETING WAS ITS CHIEF NEGOTIATOR, MARGE
LEE. INSTEAD RESPONDENT ELECTED TO RELY ON ITS DIRECT EXAMINATION OF AN
ADVERSE WITNESS, VICKI TYRRELL, CALLED BY THE GENERAL COUNSEL. TYRRELL
IS A PERSONNEL TECHNICIAN WHO ATTENDED BUT DID NOT TAKE PART IN THE
MEETING. AT THE COMMENCEMENT OF HER TESTIMONY SHE ACKNOWLEDGED THAT IN
PREPARATION FOR THE HEARING HER MEMORY WAS REFRESHED BY READING NOTES
TAKEN BY CHUCK EMERY AND BY REVIEWING SOME OF THE DOCUMENTS EVENTUALLY
RECEIVED INTO EVIDENCE. I FOUND HER TO BE AN HONEST AND CREDIBLE
WITNESS. HOWEVER, DURING HER TESTIMONY SHE REPEATEDLY USED THE PHRASE "I
DON'T RECALL" WHICH SHE EXPLAINED MEANT "I DON'T REMEMBER." ON THE ONE
KEY ISSUE SHE EVEN SAID "AS I VAGUELY RECALL." THEREFORE, HONEST AS
TYRRELL MAY BE, HER RELIABILITY AS A WITNESS IS IN SUBSTANTIAL DOUBT AND
OF LIMITED VALUE. I WOULD PLACE MORE WEIGHT ON HER TESTIMONY IF IT WERE
CORROBORATED BY OTHER WITNESSES. ON BALANCE, I DRAW THESE CONCLUSIONS
FROM HER TESTIMONY: (1) RESPONDENT'S CHIEF NEGOTIATOR, MARGE LEE, WAS
UNWILLING TO BARGAIN ABOUT ALL OR SOME PART OF THE 1981 CREDO
ANNOUNCEMENT; (2) IN A PRE-NEGOTIATION SESSION MARGE LEE TOLD TYRRELL
WHY SHE WOULD NOT BARGAIN WITH THE UNION, BUT IT IS UNCLEAR WHETHER
THESE REASONS WERE CONVEYED TO DASTEEL; AND (3) THE APRIL 21-22 MEETING
WAS CONFINED TO THE UNFAIR LABOR PRACTICE SETTLEMENTS AND OTHER
PERSONNEL MATTER, AND DID NOT CONSTITUTE BARGAINING ABOUT THE UNION'S
PROPOSALS CONCERNING THE 1981 CREDO ANNOUNCEMENT. THUS, IN A LIMITED BUT
SIGNIFICANT WAY, TYRRELL'S TESTIMONY IS CORROBORATIVE OF DASTEEL'S. /4/
9. THE MEMORANDUM OF UNDERSTANDING (R EX. 2) REFLECTING THE AGREEMENT
REACHED AS A RESULT OF THE APRIL 21-22 MEETING IS DIRECTLY RELATED TO
THE UNION'S FEBRUARY 23 PROPOSALS (GC EX. 6) CONCERNING THE ULP
SETTLEMENT ISSUES AND NOT TO ITS MARCH 27 COUNTERPROPOSALS CONCERNING
THE 1981 CREDO ANNOUNCEMENT.
10. ON APRIL 29, 1981 RESPONDENT ISSUED THE 1981 CREDO ANNOUNCEMENT
(GC EX. 4) WITHOUT HAVING ENTERED INTO ANY BARGAINING WITH THE UNION
PRIOR TO ITS ISSUANCE.
POSITIONS OF THE PARTIES
THE GENERAL COUNSEL CONTENDS THAT THE 1981 CREDO ANNOUNCEMENT
CONSTITUTED A CHANGE IN CONDITIONS OF EMPLOYMENT, THAT RESPONDENT HAD AN
OBLIGATION TO BARGAIN PRIOR TO ITS IMPLEMENTATION, THAT THE UNION
REQUESTED BARGAINING, THAT RESPONDENT REFUSED TO BARGAIN, AND BY SO
DOING, THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE
STATUTE.
RESPONDENT'S POSITION, AS SET FORTH IN ITS OPENING STATEMENT (TR P.
8), AND CLARIFIED IN ITS BRIEF (BRIEF P. 2), IS THAT "WHERE POSSIBLE" IT
BARGAINED IN GOOD FAITH. THE PHRASE "WHERE POSSIBLE" IS EXPLAINED AS
FOLLOWS:
FROM THE VERY START, RESPONDENT FELT CERTAIN OF THE COUNTER-PROPOSALS
(SIC) WERE NOT TO BE
BARGAINED FOR SEVERAL REASONS THAT ARE FOUND IN THE TRANSCRIPT. THIS
POSITION WAS CONVEYED TO
THE UNION AT THE START OF THE MEETINGS. HOWEVER, RESPONDENT FELT ALL
ALONG THAT CERTAIN OF
THE PROPOSALS WERE BARGAINABLE AND THIS WAS DONE.
STATED DIFFERENTLY, RESPONDENT ADMITS THAT IT DID NOT BARGAIN ON
THOSE SUBJECTS IT UNILATERALLY DETERMINED WERE NOT NEGOTIABLE, BUT
CONTENDS THAT IT DID BARGAIN (TO IMPASSE) ON MATTERS IT DEEMED
NEGOTIABLE. /5/
ISSUE
WHETHER RESPONDENT, BY ITS CONDUCT AT THE APRIL 21 AND 22 MEETINGS,
REFUSED TO BARGAIN WITH THE UNION CONCERNING THE IMPACT AND
IMPLEMENTATION OF THE 1981 CREDO ANNOUNCEMENT WHICH WAS SUBSEQUENTLY
IMPLEMENTED ON APRIL 29, 1981.
DISCUSSION AND CONCLUSIONS OF LAW
A. RESPONDENT'S OBLIGATION TO BARGAIN
IT IS A WELL-ACCEPTED TENET OF FEDERAL LABOR RELATIONS THAT AN AGENCY
MUST GIVE THE EXCLUSIVE REPRESENTATIVE NOTICE AND THE OPPORTUNITY TO
BARGAIN REGARDING CHANGES IN WORKING CONDITIONS THAT AFFECT BARGAINING
UNIT EMPLOYEES. SEE, E.G., DEPARTMENT OF TREASURY, INTERNAL REVENUE
SERVICE, JACKSONVILLE DISTRICT AND NATIONAL TREASURY EMPLOYEES UNION, 3
FLRA 630 (1980); INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND
NATIONAL TREASURY EMPLOYEES UNION, 4 FLRA NO. 68 (1980).
THERE IS ALSO AMPLE AUTHORITY FOR THE PROPOSITION THAT PROCEDURES
UTILIZED TO ANNOUNCE AND FILL VACANCIES OF BARGAINING UNIT POSITIONS ARE
SUCH MATTERS AFFECTING WORKING CONDITIONS AND THEREFORE ARE NEGOTIABLE.
IN NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE,
O-NG-109, 2 FLRA 280 (1979) THE AUTHORITY FOUND NEGOTIABLE A UNION
PROPOSAL RELATING TO THE ANNOUNCEMENT OF CERTAIN VACANCIES AS UPWARD
MOBILITY POSITIONS ON THE BASIS THAT THE PROPOSALS WOULD ESTABLISH A
PROCEDURAL REQUIREMENT THAT WAS BARGAINABLE UNDER THE STATUTE. IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL COUNCIL OF
UNITED STATES MARSHALS SERVICE LOCALS AND DEPARTMENT OF JUSTICE, UNITED
STATES MARSHALS SERVICE, CASE NO. O-NG-118, 2 FLRA 764 (1980) THE
AUTHORITY FOUND NEGOTIABLE A PROPOSAL THAT REQUIRED THE AGENCY TO
ANNOUNCE ALL VACANCIES FOR WHICH BARGAINING UNIT EMPLOYEES ARE ELIGIBLE
TO APPLY, BECAUSE THE PROPOSAL RELATED TO NEGOTIABLE PROCEDURES.
SIMILARLY, THE AUTHORITY HAS FOUND PROPOSALS ESTABLISHING PROCEDURES FOR
RANKING CANDIDATES, ROSTERS FOR THE SELECTION OF EMPLOYEES FOR DETAILS,
AND PROPOSALS THAT WOULD ENUMERATE THE PERSONNEL ACTIONS COVERED BY
COMPETITIVE PROCEDURES FOR FILLING BARGAINING UNIT POSITIONS, DEFINE THE
INITIAL AREA OF CONSIDERATION IN WHICH THERE WOULD BE AN INTENSIVE
SEARCH FOR CANDIDATES TO FILL POSITIONS AND WOULD REQUIRE THE
ANNOUNCEMENT AND POSTING OF ALL BARGAINING UNIT VACANCIES ALL TO BE
NEGOTIABLE UNDER THE STATUTE. /6/ THUS, IF MANAGEMENT TENDS TO EFFECT A
CHANGE IN THE PROCEDURES USED FOR ANNOUNCING OR FILLING VACANCIES FOR
WHICH BARGAINING UNIT EMPLOYEES ARE ELIGIBLE TO APPLY, IT MUST FIRST
GIVE THE UNION NOTICE AND THE OPPORTUNITY TO BARGAIN ABOUT SUCH
PROCEDURAL CHANGES.
IN THE INSTANT CASE THE CREDO ANNOUNCEMENT SETS FORTH THE PROCEDURES
WHICH BARGAINING UNIT EMPLOYEES MUST UTILIZE IN ORDER TO APPLY FOR THE
UNIT POSITION OF CLAIMS REPRESENTATIVE. IT IS UNDISPUTED (AND THE FACE
OF THE DOCUMENT SO REFLECTS) THAT THE 1981 CREDO ANNOUNCEMENT CONTAINED
NUMEROUS CHANGES FROM THE 1980 CREDO ANNOUNCEMENT AND THAT THOSE CHANGES
WERE INCORPORATED IN THE DOCUMENT MANAGEMENT ISSUED. IN MY OPINION, THE
CHANGES WERE SUBSTANTIAL IN NATURE. HENCE, RESPONDENT WAS OBLIGATED TO
BARGAIN WITH THE UNION REGARDING ITS PROPOSED CHANGES IN THE 1981 CREDO
ANNOUNCEMENT PRIOR TO ITS ISSUANCE. MOREOVER, SINCE THE PROPOSALS
SUBMITTED BY THE UNION ALSO ADDRESSED PROCEDURES UNDERLYING THE
APPLICATION AND SELECTION PROCESS OF CLAIMS REPRESENTATIVES UNDER THE
CREDO ANNOUNCEMENT, AND NOTING THE ABSENCE OF ANY DEFENSE THAT THE
PROPOSALS WERE NONNEGOTIABLE, I CONCLUDE THEY WERE ALSO NEGOTIABLE UNDER
THE STATUTE AND RESPONDENT WAS OBLIGATED TO BARGAIN ABOUT THOSE
PROPOSALS AS WELL, PRIOR TO ITS IMPLEMENTATION OF THE NEW CREDO
ANNOUNCEMENT.
B. RESPONDENT'S REFUSAL TO BARGAIN
THE GENERAL COUNSEL CALLED JEFF DASTEEL, ACTING UNION PRESIDENT AND
CHIEF NEGOTIATOR DURING THE INSTANT NEGOTIATIONS TO TESTIFY REGARDING
THE EVENTS WHICH PRECEDED THE ISSUANCE OF THE 1981 CREDO ANNOUNCEMENT.
MR. DASTEEL TESTIFIED THAT IN MARCH OF 1981 HE HEARD THAT A NEW CREDO
ANNOUNCEMENT WAS GOING TO ISSUE. HE HAD NOT BEEN OFFICIALLY NOTIFIED OF
THIS FACT BUT, AFTER MAKING AN INQUIRY, HE RECEIVED A COPY OF THE
PROPOSED 1981 CREDO ANNOUNCEMENT. MR. DASTEEL THEN PREPARED BARGAINING
PROPOSALS WHICH HE SUBMITTED TO RESPONDENT ON MARCH 27.
ON APRIL 21, THE UNION NEGOTIATING COMMITTEE MET WITH RESPONDENT'S
NEGOTIATING COMMITTEE. ALTHOUGH THE MEETING HAD ORIGINALLY BEEN
SCHEDULED TO NEGOTIATE PURSUANT TO THE SETTLEMENT OF TWO UNFAIR LABOR
PRACTICES AS WELL AS SOME REGIONAL PERSONNEL ACTIONS, IT WAS MR.
DASTEEL'S UNDERSTANDING THAT THE PARTIES WOULD ALSO BE NEGOTIATING ON
THE 1981 CREDO ANNOUNCEMENT AS WELL. HOWEVER, UPON ARRIVING AT THE
BARGAINING TABLE ON APRIL 21, MR. DASTEEL WAS INFORMED BY MARGE LEE
(RESPONDENT'S CHIEF SPOKESPERSON) THAT MANAGEMENT WOULD NOT BARGAIN OVER
ANY OF THE PROPOSALS DIRECTED AT THE 1981 CREDO ANNOUNCEMENT. AS
PREVIOUSLY NOTED, MARGE LEE WAS NOT CALLED AS A WITNESS.
ALTHOUGH THE PARTIES SUBSEQUENTLY ENTERED INTO NEGOTIATIONS REGARDING
THE UNFAIR LABOR PRACTICE CASES, AT NO TIME DID ANY NEGOTIATIONS OCCUR
REGARDING THE 1981 CREDO ANNOUNCEMENT. RESPONDENT'S CONTENTION TO THE
CONTRARY IS THUS REJECTED. THE ONLY WRITTEN PRODUCT OF THE APRIL 21-22
MEETINGS WAS A MEMORANDUM OF UNDERSTANDING WHICH, I CONCLUDE, WAS BASED
UPON THE ULP SETTLEMENT NEGOTIATIONS AND NOT AT ALL RELATED TO THE
UNION'S PROPOSALS ON THE 1981 CREDO ANNOUNCEMENT.
ON THE BASIS OF THE FOREGOING EVIDENCE, AND MY REVIEW OF THE ENTIRE
RECORD, I CONCLUDE THAT RESPONDENT REFUSED TO BARGAIN WITH THE UNION AND
THEREBY FAILED-- IN VIOLATION OF SECTION 7116(A)(1) AND (5)-- TO FULFILL
ITS BARGAINING OBLIGATION PRIOR TO ITS APRIL 29 IMPLEMENTATION OF THE
1981 CREDI ANNOUNCEMENT. ACCORDINGLY, I RECOMMEND THAT THE AUTHORITY
ISSUE THE FOLLOWING:
ORDER
PURSUANT TO 5 U.S.C. 7118 AND SECTION 2423.26 OF THE FINAL RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, IT IS HEREBY
ORDERED THAT THE DEPARTMENT OF HEALTH AND HUMAN SERVICE, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, SHALL:
1. CASE AND DESIST FROM:
(A) UNILATERALLY IMPLEMENTING CHANGES IN CREDO ANNOUNCEMENTS WITHOUT
BARGAINING IN GOOD
FAITH WITH THE EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
(AFGE) OR ANY OTHER EXCLUSIVE REPRESENTATIVE, AND AFFORDING IT AN
OPPORTUNITY TO BARGAIN ON
THE IMPACT AND IMPLEMENTATION OF CHANGES TO THE CREDO ANNOUNCEMENT,
INCLUDING AFGE'S
COUNTERPROPOSALS DATED MARCH 27, 1981.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THE EXERCISE OF RIGHTS GUARANTEED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND NECESSARY
TO EFFECTUATE THE POLICIES OF THE STATUTE:
(A) UPON REQUEST, BARGAIN WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
(AFGE) OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING THE IMPACT
AND IMPLEMENTATION OF THE
1981 CREDO ANNOUNCEMENT, SAID NEGOTIATIONS TO INCLUDE THE MARCH 27,
1981 COUNTERPROPOSALS
SUBMITTED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
(B) POST AT ITS REGION IX SAN FRANCISCO REGIONAL, DISTRICT AND BRANCH
OFFICES, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE
FURNISHED BY THE ACTING
REGIONAL DIRECTOR FOR REGION 9, AFTER BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE, SHALL BE
POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY
IT FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT
SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE ACTING REGIONAL DIRECTOR FOR REGION 9 IN WRITING,
WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
/1/ THE CREDITED TESTIMONY OF DASTEEL (AT TR 23) CONFIRMS THAT THE
UNION'S TYPEWRITTEN PROPOSALS CONTAINED NO HANDWRITTEN NOTES ON PAGE 3.
/2/ DASTEEL'S "UNDERSTANDING" WAS BASED UPON HIS CONVERSATION WITH
MANAGEMENT ANALYST MICHAEL AMARO. I NOTE THAT AMARO SERVED AS A
TECHNICAL ADVISOR TO RESPONDENT'S COUNSEL DURING THIS HEARING, BUT DID
NOT TESTIFY.
/3/ I CREDIT DASTEEL'S TESTIMONY THAT MARGE LEE'S ONLY EXPLANATION
WAS THE ALLEGED WAIVER. AT THE HEARING, RESPONDENT STIPULATED THAT IT
WAS NOT ASSERTING THE ALLEGED WAIVER AS A LEGAL DEFENSE IN THIS
PROCEEDING.
/4/ IN ADDITION TO THE FOREGOING, I ADOPT THE MORE DETAILED ANALYSIS
CONTAINED IN GENERAL COUNSEL'S EXCELLENT BRIEF AT PP. 8-9 AS TO WHY
TYRRELL'S TESTIMONY MAY NOT BE CREDITED WHERE INCONSISTENT WITH
DASTEEL'S TESTIMONY.
/5/ RESPONDENT RAISED NO OTHER DEFENSES. THEREFORE, IT IS NOT
NECESSARY FOR ME TO ADDRESS POSSIBLE DEFENSES DISCUSSED IN COUNSEL FOR
GENERAL COUNSEL'S BRIEF.
THOMAS J. LEE, FOR THE RESPONDENT
VINCE MORGANTE, FOR THE CHARGING PARTY
BARI STOLMACK NESS, ESQ., FOR THE GENERAL COUNSEL
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY CHANGE CONDITIONS OF EMPLOYMENT OF
BARGAINING UNIT EMPLOYEES REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, SUCH AS CHANGING
THE CREDO ANNOUNCEMENT ISSUED IN 1981 WITHOUT GIVING THE EXCLUSIVE
REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
SUCH AS CHANGING THE CREDO ANNOUNCEMENT ISSUED IN 1981 WITHOUT GIVING
THE EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NOTICE AND OPPORTUNITY TO BARGAIN.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST, BARGAIN WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO REGARDING THE IMPACT AND IMPLEMENTATION OF
THE 1981 CREDO ANNOUNCEMENT, AND SAID NEGOTIATIONS WILL INCLUDE THE
MARCH 27, 1981 COUNTERPROPOSALS SUBMITTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO.
. . . (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 ACTING
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE
ADDRESS IS: FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, SAN FRANCISCO,
530 BUSH STREET, SUITE 542, SAN FRANCISCO, CALIFORNIA 94108, AND WHOSE
TELEPHONE NUMBER IS: (415) 556-8105. 770801 0000630
21 FLRA-ALJ; CASE NO. 7-CA-951 OCTOBER 29, 1982
GENERAL SERVICES ADMINISTRATION, REGION 8, DENVER, COLORADO,
RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3275, CHARGING PARTY
BEFORE: WILLIAM B. DEVANEY, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING, UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5 U.S.C. 7101,
ET SEQ., /1/ AND THE FINAL RULES AND REGULATIONS ISSUED THEREUNDER, 5
C.F.R. 2423.1. ET SEQ., WAS INITIATED BY A CHARGE FILED ON JANUARY 15,
1981 (G. C. EXH. 1(A)) AND THE COMPLAINT AND NOTICE OF HEARING ISSUED ON
MARCH 27, 1981 (G.C. EXH. 1(B)) FOR A HEARING AT A TIME AND PLACE TO BE
DESIGNATED LATER. ON OCTOBER 15, 1981, AN ORDER CONSOLIDATING THIS CASE
WITH CASE NO. 7-CA-942 ISSUED AND SCHEDULED A HEARING FOR DECEMBER 16,
1981 (G.C. EXH. 1(C)). /2/ BY ORDER DATED NOVEMBER 12, 1981 (G.C. EXH.
1(D)), THE HEARING HEREIN, AND IN OTHER CASES, WAS RESCHEDULED FOR
FEBRUARY 8, 1982, FOR CALENDAR CALL; AND BY ORDER DATED JANUARY 20,
1982, WAS FURTHER RESCHEDULED TO APRIL 19, 1982, FOR CALENDAR CALL (G.C.
EXH. 1(F)), AT WHICH TIME THE HEARING HEREIN WAS FIXED FOR APRIL 22,
1982, PURSUANT TO WHICH A HEARING WAS DULY HELD ON APRIL 22, 1982,
BEFORE THE UNDERSIGNED IN DENVER, COLORADO.
ALL PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED, AND WERE AFFORDED
FULL OPPORTUNITY TO PRESENT ORAL ARGUMENT. AT THE CLOSE OF THE HEARING,
MAY 24, 1982, WAS FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS,
WHICH TIME WAS SUBSEQUENTLY EXTENDED, UPON TIMELY MOTION OF THE GENERAL
COUNSEL, AND FOR GOOD CAUSE SHOWN, TO JUNE 24, 1982. NEITHER PARTY FILED
A BRIEF IN THIS CASE. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS AND CONCLUSIONS:
THE ISSUE
THE NARROW ISSUE IS WHETHER MS. KATIE M. CALVERT (NOW ARGUELLO), A
SUPERVISOR, AT A GRIEVANCE MEETING, STATED, AS ALLEGED IN PARAGRAPH 4 OF
THE COMPLAINT, ". . . THAT SHE DID NOT WANT UNION PEOPLE COUNSELING HER
EMPLOYEES, AND THAT MATTERS BETWEEN HER AND HER EMPLOYEES WERE NONE OF
THE UNION'S BUSINESS, AND THAT SHE DID NOT WANT THE UNION TO 'MESS' WITH
HER EMPLOYEES." /3/ (G.C. EXH. 1(B)). RESPONDENT DENIES THAT ANY SUCH
STATEMENT WAS MADE.
FINDINGS AND CONCLUSIONS
MS. JANICE HOPP, A PROCUREMENT AGENT IN THE FEDERAL SUPPLY SERVICE
AND, AT ALL TIMES MATERIAL, A UNION STEWARD, TESTIFIED THAT, AT A
GRIEVANCE MEETING ON DECEMBER 9, 1980, HELD IN THE OFFICE OF MR. GEORGE
MOORE, MS. CALVERT, NOW MRS. ARGUELLO, STATED,
". . . I DON'T WANT UNION PEOPLE COUNSELING MY EMPLOYEES. THE
PROBLEMS BETWEEN MYSELF AND
MY EMPLOYEES ARE PERSONAL AND I DON'T WANT THE UNION INVOLVED IN MY
BUSINESS." (TR. 17).
PRESENT AT THE MEETING WERE: FOR THE UNION: MS. HOPP, MS. LYDIA
HENRIKSEN, THE GRIEVANT, AND MR. WILLIAM DUANE (JAKE) SHIELD, EXECUTIVE
VICE PRESIDENT; FOR THE RESPONDENT: MR. GEORGE MOORE, THEN ASSISTANT
REGIONAL ADMINISTRATOR FOR THE PUBLIC BUILDING SERVICE, MR. RICHARD
ANDERSON, THEN CHIEF OF THE ASSIGNMENT AND UTILIZATION BRANCH AND ACTING
DIRECTOR OF THE SPACE MANAGEMENT DIVISION, MR. JOSEPH BARTLEY,
LABOR-MANAGEMENT RELATIONS OFFICER, REGION 8, AND MS. CALVERT. ALL WERE
PRESENT AT THE TIME OF THE ASSERTED STATEMENT BY MS. CALVERT.
MS. HENRIKSEN TESTIFIED THAT MS. CALVERT POINTED AT JAKE (SHIELD) AND
SAID,
"'. . . JAKE, WHATEVER HAPPENS BETWEEN MY EMPLOYEES AND MYSELF IS
CONFIDENTIAL AND THE
UNION HAS NO BUSINESS COUNSELING MY EMPLOYEES AND I WISH YOU WOULD
STAY OUT OF MY
BUSINESS,' SOMETHING TO THAT EFFECT." (TR. 33).
MR. SHIELD TESTIFIED THAT,
". . . IT WAS AN UNSOLICITED COMMENT, TO THE BEST OF MY RECOLLECTION,
MS. CALVERT SAID, 'I
DO NOT NEED THE UNION TO COUNSEL MY EMPLOYEES.'" (TR. 44).
BY LETTER DATED DECEMBER 15, 1980 (G.C. EXH. 3), MR. SHIELD APPEALED
MS. HENRIKSEN'S GRIEVANCE TO THE REGIONAL ADMINISTRATOR, MR. DENNIS A.
JANSEN. THE LETTER TO MR. JENSEN STATED, IN PART,
"DURING THE DECEMBER 9, 1980 MEETING, SUPERVISOR CALVERT STATED 'I
DON'T NEED ANY UNION
PEOPLE COUNSELING MY EMPLOYEES. WHAT'S BETWEEN ME AND MY EMPLOYEES IS
CONFIDENTIAL AND NONE
OF THE UNION'S BUSINESS.'" (G.C. EXH. 3).
MR. SHIELD TESTIFIED THAT THE STATEMENT IN HIS LETTER OF DECEMBER 15,
1980, WAS A "DIRECT QUOTE" OF WHAT MS. CALVERT SAID AT THE DECEMBER 9
MEETING (TR. 48).
MR. BARTLEY DID NOT RECALL /4/ ANY SUCH STATEMENT BY MS. CALVERT (TR.
57). HE STATED THAT MS. CALVERT SAID, "VERY LITTLE EXCEPT TO RESPOND TO
QUESTIONS BY GEORGE MOORE" (TR. 56) BUT HE DID NOT SAY WHAT MS. CALVERT
SAID. MR. ANDERSON DID NOT RECALL ANY SUCH STATEMENT /5/ BY MS. CALVERT
(TR. 64). HE DIDN'T THINK MS. CALVERT PARTICIPATED IN THE DISCUSSION ON
DECEMBER 9 (TR. 64), THAT
"I DO NOT RECALL THAT STATEMENT BEING MADE AND I FEEL THAT IF IT HAD
BEEN MADE, THAT I
WOULD HAVE REMEMBERED IT. NOW, IT COULD HAVE BEEN SOMETHING MAY HAVE
BEEN SAID IN SOME OTHER
CONTEXT, BUT I DO NOT RECALL THAT STATEMENT /4/ AS HAVING BEEN MADE."
(TR. 64-65).
MR. MOORE ALSO DID NOT RECALL ANY SUCH STATEMENT (TR. 69) AND FURTHER
STATED,
". . . IN FACT, IF SUCH A STATEMENT WOULD HAVE BEEN MADE, I THINK
THAT I WOULD HAVE
COUNTERMANDED IT RIGHT THERE ON THE SPOT BECAUSE THAT'S NOT AN
APPROPRIATE DISPOSITION OF A
MATTER AND THE APPROPRIATE WAY TO HANDLE IT. THE UNION DOES HAVE A
RIGHT TO COUNSEL THEIR
EMPLOYEES, IN FACT, THEY HAVE AN OBLIGATION TO COUNSEL THEM." (TR.
69).
MRS. ARGUELLO (NEE CALVERT) DID NOT TESTIFY BECAUSE SHE WAS ". . .
ON EXTENDED LEAVE ON A HONEYMOON AND WE ATTEMPTED TO GET AN EXTENSION OF
TIME FOR THE HEARING, BUT WAS NOT AVAILABLE. . . . " (TR. 71).
ACCORDINGLY, I DRAW NO INFERENCE WHATEVER FROM HER FAILURE TO TESTIFY.
AS OPPOSED TO THE TESTIMONY OF RESPONDENT'S WITNESSES WHO DID NOT
RECALL ANYTHING THAT MS. CALVERT (MRS. ARGUELLO) SAID, AND AT LEAST MR.
BARTLEY RECALLED THAT SHE SAID SOMETHING; AND MR. ANDERSON CONCEDED
THAT ". . . IT COULD HAVE BEEN SOMETHING MAY HAVE BEEN SAID IN SOME
OTHER CONTEXT. . . . ", I FIND THE TESTIMONY OF MS. HOPP, MS. HENRIKSEN
AND MR. SHIELD FAR MORE CONVINCING. INDEED, MR. SHIELD'S RECOLLECTION OF
MS. CALVERT'S STATEMENT OF DECEMBER 9, 1980 WAS SET FORTH IN HIS LETTER
OF DECEMBER 15, 1980. CONSEQUENTLY, I CREDIT THE TESTIMONY OF MS. HOPP,
MS. HENRIKSEN AND MR. SHIELD, TO THE EFFECT THAT MS. CALVERT ON DECEMBER
9, 1980, SAID THAT, "I DON'T NEED ANY UNION PEOPLE COUNSELING MY
EMPLOYEES. WHAT'S BETWEEN ME AND MY EMPLOYEES IS CONFIDENTIAL AND NONE
OF THE UNION'S BUSINESS."
MS. HOPP STATED THAT MS. CALVERT'S STATEMENT "ASTOUNDED" HER, THAT ".
. . IT WAS QUITE APPARENT WE HAD BEEN ASKED TO REPRESENT MS. HENRIKSEN
AND THE WHOLE PURPOSE OF THE UNION IN THIS SITUATION IS HELP WITH
MANAGEMENT-EMPLOYEE RELATIONS, IF THERE WAS A PROBLEM, AND THERE WAS NO
OTHER REASON FOR US TO BE THERE." (TR. 17). MR. SHIELD STATED THAT HE,
". . . FELT THAT MS. CALVERT WAS TRYING TO UNDERMINE THE STATUS OF THE
UNION IN THE FACE OF THE GRIEVANT . . . THAT SHE DID NOT CARE FOR US
BEING THERE TO REVIEW THE CIRCUMSTANCES AND PROPOSE CORRECTIVE REMEDY
FOR THE GRIEVANT." (TR. 45). MS. HENRIKSEN STATED SHE, ". . . FELT
TOTALLY DEVASTATED, I FELT LIKE A FOOL . . . HERE I AM, I HAD BROUGHT
SOMEONE, IN OTHER WORDS, THE UNION. THEY PAY NO ATTENTION TO THE UNION .
. . ." (TR. 33). NOT ONLY DOES THE RECORD AFFIRMATIVELY SHOW, CONTRARY
TO MR. ANDERSON'S TESTIMONY, THAT MS. CALVERT'S STATEMENT DIRECTLY
RELATED TO THE UNION'S RIGHT TO CONSULT WITH AN EMPLOYEE CONCERNING
PERCEIVED PROBLEMS, BUT SUCH STATEMENT WAS INHERENTLY DESTRUCTIVE OF THE
RIGHTS ASSURED EMPLOYEES BY SEC 2 OF THE STATUTE. INDEED, THE STATEMENT
BY THE EMPLOYEE'S FIRST-LINE SUPERVISOR, IN THE PRESENCE OF THE
EMPLOYEE, CONVEYED AN IMPLIED THREAT THAT SUCH CONSULTATION WITH THE
UNION WOULD RESULT IN UNFAVORABLE ACTION, WHICH IMPLICIT THREAT WAS NOT
DISCLAIMED BY THE SECOND AND THIRD-LEVEL SUPERVISORS PRESENT, NOR DID
RESPONDENT MAKE ANY DISCLAIMER FOLLOWING MR. SHIELD'S LETTER OF DECEMBER
15, 1980, TO THE REGIONAL ADMINISTRATOR, IN WHICH HE SET FORTH THE
STATEMENT MADE BY MS. CALVERT. UNITED STATES DEPARTMENT OF TREASURY,
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS, 3 FLRA NO.
116, 3 FLRA 724 (1980). INDEED, THE RECORD SHOWS THAT THERE WAS A
CHILLING EFFECT ON THE EXERCISE OF MS. HENDRIKSEN'S PROTECTED RIGHT TO
FILE AND PROCESS A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
DEPARTMENT OF THE ARMY, FORT BRAGG SCHOOLS, 3 FLRA NO. 57, 3 FLRA 364
(1980).
ACCORDINGLY, HAVING FOUND THAT RESPONDENT VIOLATED SEC. 16(A)(1) OF
THE STATUTE, I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING:
ORDER
PURSUANT TO SEC. 2423.29 OF THE REGULATIONS, 5 C.F.R. 2423.29, AND
SEC. 18 OF THE STATUTE, 5 U.S.C. 7118, THE AUTHORITY HEREBY ORDERS THAT
THE GENERAL SERVICES ADMINISTRATION, REGION 8, DENVER, COLORADO, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
OTHERWISE, LYDIA HENRIKSEN,
OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHT TO FILE AND PROCESS
GRIEVANCES UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL.
(B) STATING IN ANY MANNER TO LYDIA HENRIKSEN, OR TO ANY OTHER
EMPLOYEE, THAT THEY MAY NOT
FREELY, AND WITHOUT FEAR OF PENALTY OR REPRISAL, CONSULT WITH THE
EXCLUSIVE BARGAINING
REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3275.
(C) IN ANY LIKE OR RELATED MANNER INTERFACING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE
IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES IN DENVER, COLORADO, COPIES OF THE
ATTACHED NOTICE ON FORMS TO
BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE
REGIONAL ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, REGION 8,
AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
REGIONAL ADMINISTRATOR SHALL TAKE REASONABLE STEPS TO INSURE THAT
SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SEC. 2423.30 OF THE REGULATIONS, NOTIFY THE REGIONAL
DIRECTOR OF THE
FEDERAL LABOR RELATIONS AUTHORITY FOR REGION 7, WHOSE ADDRESS IS:
SUITE 301, 1531 STOUT
STREET, DENVER, COLORADO 80202, IN WRITING, WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
/1/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE HEREINAFTER
ARE, ALSO, REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71" OF THE
STATUTE REFERENCE, E.G. SECTION 7116(A)(1) WILL BE REFERRED TO SIMPLY AS
"16(A)(1)."
/2/ RESPONDENT'S REQUEST TO SEVER, TO WHICH GENERAL COUNSEL HAD NO
OBJECTION, WAS GRANTED AT THE HEARING AND THE CASES, ALTHOUGH HEARD
SERIATIM, WERE TRIED AS SEPARATE CASES AND A SEPARATE DECISION WILL BE
ISSUED FOR EACH CASE.
/3/ THE CHARGE ALLEGED THAT SHE SAID, "I DON'T NEED ANY UNION PEOPLE
COUNSELING MY EMPLOYEES. WHAT IS BETWEEN ME AND MY EMPLOYEES IS
CONFIDENTIAL AND NONE OF THE UNION'S BUSINESS." (G.C. EXH. 1(A)).
/4/ I AM AWARE THAT MR. BARTLEY PLACED THE DECEMBER 9 MEETING IN THE
MORNING (TR. 55), WHILE ALL OTHER WITNESSES WHO WERE ASKED STATED IT
TOOK PLACE IN THE LATE AFTERNOON (TR. 15, 42, 65, 68).
/5/ I.E., ". . . THAT SHE DIDN'T WANT THE UNION PEOPLE COUNSELING HER
EMPLOYEES AND THAT MATTERS BETWEEN HER AND HER EMPLOYEES WERE NONE OF
THE UNION'S BUSINESS AND SHE DID NOT WANT THE UNION TO MESS WITH HER
EMPLOYEES" (TR. 64).
GAVIN K. LODGE, ESQUIRE
JAMES J. GONZALES, ESQUIRE, FOR THE GENERAL COUNSEL
PATRICIA Y. HUGHES, ESQUIRE
ALIOVA D. JUAREZ, ESQUIRE, FOR THE RESPONDENT
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER TO
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE POLICIES OF CHAPTER 71 OF THE 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
OTHERWISE, LYDIA HENRIKSEN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT STATE IN ANY MANNER TO LYDIA HENRIKSEN, OR TO ANY OTHER
EMPLOYEE, THAT THEY MAY NOT FREELY, AND WITHOUT FEAR OF PENALTY OR
REPRISAL, CONSULT WITH THE EXCLUSIVE BARGAINING REPRESENTATIVE, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3275.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER THE STATUTE.
. . . (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, FEDERAL LABOR RELATIONS AUTHORITY, REGION 7, WHOSE
ADDRESS IS: SUITE 301, 1531 STOUT STREET, DENVER, COLORADO 80202, AND
WHOSE TELEPHONE NUMBER IS: (303) 837-5224. 770801 0000620
1982
VETERANS ADMINISTRATION, AUDIE L. MURPHY MEMORIAL VETERANS HOSPITAL,
SAN ANTONIO, TEXAS, RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3511, AFL-CIO, CHARGING PARTY
BEFORE: ISABELLE R. CAPPELLO, ADMINISTRATIVE LAW JUDGE
DECISION
THIS IS A PROCEEDING UNDER TITLE VII THE CIVIL SERVICE REFORM ACT OF
1978, 5 U.S.C. 7101 ET SEQ. (SUPP. IV, 1980, HEREINAFTER REFERRED TO AS
THE "STATUTE") AND THE RULES AND REGULATIONS ISSUED THEREUNDER AND
PUBLISHED AT 5 CFR 2411 ET SEQ.
PURSUANT TO CHARGES SIGNED ON AUGUST 24 AND FILED ON AUGUST 28, 1981,
THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY
(HEREINAFTER, THE "AUTHORITY"), INVESTIGATED THE ALLEGATIONS OF THE
CHARGES AND FILED THIS CONSOLIDATED COMPLAINT, ON DECEMBER 16, 1981.
THE CONSOLIDATED COMPLAINT ALLEGES THAT RESPONDENT DID ENGAGE IN, AND
IS ENGAGING IN UNFAIR LABOR PRACTICES IN VIOLATION OF SECTION 7116(A)(1)
OF THE STATUTE. /2/ COUNT 8(A) OF THE COMPLAINT ALLEGES THAT:
(A) ON OR ABOUT APRIL 8, 1981, RESPONDENT, THROUGH ITS SUPERVISOR AND
AGENT J. O. JONES
INTERFERED WITH, RESTRAINED, AND COERCED UNION VICE PRESIDENT WILLIAM
FENSTERMACHER BY TELLING
HIM IN THE PRESENCE OF BARGAINING UNIT EMPLOYEES THAT HE WAS GOING TO
CONTACT THE PERSONNEL
OFFICE TO SEE WHETHER HE COULD GET FENSTERMACHER'S JOB CONTRACTED OUT
SINCE HE SPENT SO MUCH
TIME ON UNION ACTIVITIES.
(GC 1(H). 8(A)). /3/
COUNT 8(B) ALLEGES THAT:
ON OR ABOUT MAY 1, 1981, RESPONDENT THROUGH ITS SUPERVISOR AND AGENT
LARRY SUMMERS
INTERFERED WITH, RESTRAINED, AND COERCED UNION VICE PRESIDENT WILLIAM
FENSTERMACHER IN THE
EXERCISE OF RIGHTS GUARANTEED BY 5 USC 7102 BY DIRECTING
FENSTERMACHER TO MEET WITH HIS
CO-WORKERS IN THE GROUNDS DEPARTMENT AND EXPLAIN TO THEM THAT HIS
INVOLVEMENT IN SETTLEMENT
NEGOTIATIONS MIGHT CAUSE THEM TO HAVE TO DO HIS WORK.
(GC 1(J). 8(B)).
A HEARING IN THE MATTER WAS HELD ON APRIL 28 AND 29, 1982, IN SAN
ANTONIO, TEXAS. THE PARTIES APPEARED, ADDUCED EVIDENCE, AND EXAMINED
WITNESSES. BRIEFS WERE FILED ON AND BEFORE JULY 1, 1982. BASED UPON THE
RECORD MADE IN THIS PROCEEDING MY OBSERVATION OF THE DEMEANOR OF THE
WITNESSES, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
FINDINGS OF FACT
1. IT IS ADMITTED THAT RESPONDENT IS AN "AGENCY" AND THE CHARGING
PARTY IS A "LABOR ORGANIZATION," WITHIN THE MEANING OF SECTIONS
7103(A)(3) AND (4) OF THE STATUTE. SEE GC 1(J). 2 AND 3 AND 1(Q). I.
2. THE FOLLOWING PERSONS ARE INVOLVED IN THE ALLEGED UNFAIR LABOR
PRACTICES:
(A) WILLIAM FENSTERMACHER HAS BEEN AN EMPLOYEE OF RESPONDENT SINCE
1973. HE HAS BEEN, DURING THE PERIOD HERE RELEVANT, AND IS NOW THE ONLY
GARDENER IN THE GROUND SECTION OF THE ENGINEERING SERVICE OF RESPONDENT.
HE WORKS WITH, AND SUPERVISES THREE LABORERS, PLUS TEMPORARY SUMMER
HELP. HE HAS BEEN A MEMBER OF LOCAL 3511 OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (HEREINAFTER, THE "UNION" OR THE "CHARGING PARTY"),
SINCE 1975, A UNION STEWARD FROM 1976-1977; UNION SECRETARY-TREASURER
FROM 1977 TO 1978; UNION PRESIDENT FROM 1978 TO 1980; AND UNION CHIEF
STEWARD FROM JANUARY UNTIL ABOUT APRIL 1980. SINCE APRIL 1980, MR.
FENSTERMACHER HAS SERVED AS THE UNION VICE-PRESIDENT, IN WHICH ROLE HE
DOES "JUST ABOUT EVERYTHING FOR THE UNION" (TR 17).
(B) J. O. JONES WAS A SUPERVISOR OF MR. FENSTERMACHER FROM 1974 OR
1975 AND UP UNTIL NOVEMBER 1981. MR. JONES WAS ASSISTANT CHIEF OF
OPERATIONS IN THE ENGINEERING SERVICE. HE IS NOW CHIEF OF OPERATIONS IN
THE ENGINEERING SERVICE. IN APRIL THROUGH MAY 1981, MR. JONES ACTED AS
THE IMMEDIATE SUPERVISOR OF MR. FENSTERMACHER.
(C) LARRY SUMMERS HAS BEEN CHIEF OF THE ENGINEERING SERVICE SINCE
1973. ON A DAY-TO-DAY BASIS, HE ACTS AS THE THIRD-LINE SUPERVISOR OF MR.
FENSTERMACHER. SEE TR 292.
3. ON FEBRUARY 28, 1981, A COMPLAINT AGAINST RESPONDENT WAS ISSUED
THAT INVOLVED 22 ALLEGED UNFAIR LABOR PRACTICES. SOME INVOLVED MR.
JONES, MR. SUMMERS, AND MR. FERNSTERMACHER. AN INFORMAL SETTLEMENT
CONCERNING SOME OF THESE CHARGES WAS RESCINDED BY THE REGIONAL DIRECTOR,
REGION VI, OF THE AUTHORITY "BECAUSE THE AGENCY KEPT HAVING THE SAME
TYPE OF VIOLATIONS" (TR 24). A HEARING WAS SCHEDULED FOR MARCH 24, 1981,
BUT WAS NEVER HELD. INSTEAD, RESPONDENT AND THE UNION ENTERED INTO
ACTIVE SETTLEMENT NEGOTIATIONS, WHICH SPANNED A PERIOD FROM MAY INTO
JULY. MR. FENSTERMACHER WAS THE CHIEF NEGOTIATOR FOR THE UNION. ONE OF
THE 22 CHARGES INVOLVED "ARBITRARILY RESTRICTING THE OFFICIAL TIME
GRANTED WILLIAM FENSTERMACHER, AN EMPLOYEE, TO ENGAGED IN UNION ACTIVITY
AS A REPRESENTATIVE OF THE UNION" (CP 1.7).
4. DURING THE PERIOD OF THE NEGOTIATIONS, RESPONDENT'S DIRECTOR, JOSE
R. CORONADO, PLACED THE UNION NEGOTIATORS ON A MONDAY THROUGH FRIDAY
TOUR OF DUTY FROM 8:00 A.M. TO 4:30 P.M. SOME OF THE NEGOTIATORS WORKED
IRREGULAR HOURS; AND MR. CORONADO WANTED THEM AVAILABLE SO THAT THEY
COULD ACTIVELY PARTICIPATE IN THE NEGOTIATIONS, WHENEVER THEY OCCURRED.
MANAGERS WERE TOLD THAT THE CHANGED SCHEDULING MIGHT BE NECESSARY FOR A
PERIOD OF UP TO 60 DAYS.
COUNT 8(A) OF THE COMPLAINT
5. BEGINNING IN APRIL 1981, MR. FENSTERMACHER BEGAN TO SPENT ALMOST
100 PERCENT OF HIS TIME ON "OFFICIAL TIME," THAT IS "TIME ON THE CLOCK,
TO GIVE (HIM) TIME TO WORK ON UNION ACTIVITIES, LABOR-MANAGEMENT
ACTIVITIES" (TR 20). APRIL IS A "PRIME TIME" FOR GARDENING ACTIVITIES
(TR 45); AND SOME GARDENING WAS NOT GETTING DONE BECAUSE OF THE AMOUNT
OF OFFICIAL TIME BEING GIVEN TO MR. FENSTERMACHER.
6. THE COLLECTIVE BARGAINING AGREEMENT CALLS FOR "REASONABLE" AMOUNTS
OF OFFICIAL TIME TO BE GRANTED TO STEWARDS. THE PARTIES HAVE HAD A LONG
HISTORY OF DISAGREEMENT OVER WHAT CONSTITUTES "REASONABLE" (TR 47).
7. SINCE AROUND MARCH 1980, MR. FENSTERMACHER HAS REQUESTED OFFICIAL
TIME BY MEANS OF PLACING A WRITTEN REQUEST ON THE DESK, OR IN THE
MAILBOX OF HIS IMMEDIATE SUPERVISOR, AT THE START OF EACH WORKDAY.
8. IN THE EARLY PART OF 1981 (FEBRUARY OR MARCH), THE NEWSPAPERS WERE
FULL OF DISCUSSIONS ABOUT CONTRACTING OUT CERTAIN SERVICES OF
RESPONDENT. A LOT OF MATERIAL ABOUT IT WAS POSTED ON THE UNION BULLETIN
BOARD. RUMORS OF THE POSSIBILITY WERE KNOWN TO THE GROUNDS SECTION CREW.
THE RUMORS WERE WELL BASED. AT THE TIME THERE WAS AN "ENERGETIC" DRIVE,
THROUGHOUT THE FEDERAL GOVERNMENT, TO STUDY THE FEASIBILITY OF
CONTRACTING OUT DIFFERENT SERVICES, WITH A CONCENTRATED EFFORT DIRECTED
AT THE VA, AND SPECIFICALLY AT RESPONDENT. ON JUNE 19, 1981, THE
DIRECTOR ASSURED THE UNION THAT RUMORS ABOUT CONTRACTING OUT WERE SIMPLY
THAT, AND THAT THERE WAS NO "REAL POLICY" ABOUT IT, AT THAT TIME (TR
131). THIS DID NOT REASSURE THE UNION BECAUSE EMPLOYEES AT ANOTHER VA
HOSPITAL HAD BEEN REASSURED ABOUT CONTRACTING OUT AND, WITHIN A YEAR'S
TIME, HAD LOST THEIR JOBS. GARDENING IS THE TYPE OF ACTIVITY THAT CAN BE
CONTRACTED OUT.
9. AS OF APRIL 6 OR 7, 1981, SOME SHRUBS HAD TO BE PLANTED. THEY WERE
STORED IN AREAS WHERE WATERING WAS INCONVENIENT AND PARKING SPACES WERE
BEING BLOCKED. WHILE THERE HAD DEVELOPED A PAST PRACTICE OF HAVING
LABORERS PLANT SHRUBS, IT WAS A TASK SPECIFIED FOR THE GARDENER, ON HIS
JOB DESCRIPTION. THE UNION HAD PREVIOUSLY INSISTED ON UPGRADING THE JOB
OF A LABORER BECAUSE HE HAD BEEN PERFORMING A TASK OF A GARDENER. MR.
FENSTERMACHER WAS NOTIFIED, ON APRIL 7, OF THE NEED TO PLANT THE SHRUBS.
HE WAS REMINDED OF THE NEED ON APRIL 8 AND 9. ON BOTH APRIL 8 AND 9, MR.
FENSTERMACHER REQUESTED, AND RECEIVED, 8 HOURS OF OFFICIAL TIME. ON
APRIL 10, HE PARTICIPATED IN THE PLANTING OF THE SHRUBS.
10. ON APRIL 8 OR 9, 1981, AROUND 8 A.M., MR. JONES WALKED INTO THE
ROOM WHERE MR. FENSTERMACHER AND THE LABORERS NORMALLY GATHERED, AT THE
START OF THEIR SHIFT, TO RECEIVE THE INSTRUCTIONS OF MR. JONES ON THE
DUTIES FOR THE DAY. HE CARRIED THE OFFICIAL-TIME REQUEST OF MR.
FENSTERMACHER IN HIS HAND. BY HIS OWN ACCOUNT, MR. JONES WAS "NOT REALLY
ANGRY" AT MR. FENSTERMACHER, "JUST DISAPPOINTED" THAT MR. FENSTERMACHER
WAS PUTTING UNION DUTIES AHEAD OF PLANTING THE SHRUBS (TR 235).
NORMALLY, MR. FENSTERMACHER COMES IN AND JOKES WITH THE EMPLOYEES. HE
DID NOT DO SO, ON THIS PARTICULAR DAY.
11. WHAT MR. JONES ACTUALLY SAID TO MR. FENSTERMACHER, AT THE MORNING
GATHERING OF THE GROUNDS CREW, IS A MATTER IN DISPUTE. MR. JONES
TESTIFIED THAT HE SAID HE WAS GOING TO LOOK FOR SOME "ALTERNATE SOURCE
OF ANOTHER METHOD TO GET THE WORK DONE" (TR 228 AND 268). JOSEPH
HENDRICKS, A LABORER PRESENT AT THE MEETING, SUPPORTED HIS TESTIMONY.
BOTH DENY THAT MR. JONES USED THE TERM "CONTRACT OUT."
12. THE "ALTERNATE SOURCES" TO WHICH MR. JONES CLAIMS HE WAS
REFERRING WERE TWO IN NATURE. ONE WAS NURSERIES WITH WHOM RESPONDENT HAD
CONTRACTED, IN PRIOR YEARS, TO TRIM SHRUBS, A GARDENER'S JOB, AND TO CUT
GROUND COVER, WHICH MR. JONES CALLED "ABOUT LIKE MOWING GRASS" (TR 257),
APPARENTLY A LABORER'S JOB. THE OTHER SOURCE WAS TEMPORARY EMPLOYEES
HIRED BASICALLY TO DO THE SAME JOB AS THE LABORERS. MR. JONES HAD TOLD
MR. FENSTERMACHER, SEVERAL DAYS BEFORE THE APRIL INCIDENT AT ISSUE, THAT
THE NURSERY WHICH TRIMMED SHRUBS WAS NOT AVAILABLE TO DO SO, IN 1981.
THE ONLY WORK WHICH NEEDED TO BE DONE, IN APRIL, WAS SHRUB PLANTING AND
FERTILIZING, BOTH TASKS ASSIGNED TO THE POSITION OF GARDENER. SEE THE
JOB DESCRIPTION FOR A WG-6 GARDENER (R 1. A, B, AND C). THUS, AT THE
TIME OF THE INCIDENT, THE "ALTERNATE SOURCES" WERE NOT FOR THE JOB OF A
GARDENER. MR. JONES CONCEDED THAT CONTRACTING OUT WAS ANOTHER "ALTERNATE
SOURCE," BUT CLAIMS THAT HE DID NOT HAVE AUTHORITY TO CONTRACT OUT, IN
APRIL 1981. MR. SUMMERS ESTABLISHED THAT CONTRACTING OUT WAS "NORMALLY A
LOCAL DECISION," PRIOR TO JULY 1981 (TR 286) AND, PRESUMABLY, MR. JONES
COULD HAVE RECOMMENDED THAT THE GARDENER'S JOB BE CONTRACTED OUT. SINCE
MR. JONES WAS ASSISTANT CHIEF OF OPERATIONS, HIS RECOMMENDATIONS WOULD
CARRY CONSIDERABLE WEIGHT.
13. IN CONTRADICTION TO THE JONES-HENDRICKS VERSION, MR.
FENSTERMACHER TESTIFIED THAT MR. JONES TOLD HIM THAT "HE WAS GOING TO
CONTACT PERSONNEL SERVICE TO SEE WHAT HE COULD DO TO GET (MR.
FENSTERMACHER'S) JOB CONTRACTED OUT BECAUSE (HE) WAS SPENDING TOO MUCH
TIME ON UNION BUSINESS" (TR 22 AND SEE ALSO TR 55 AND 174). MR.
FENSTERMACHER TESTIFIED THAT THERE WAS "DEAD SILENCE" WHEN MR. JONES
MADE THE STATEMENT ABOUT HIS JOB (TR 733). MR. FENSTERMACHER FELT THAT
MR. JONES MEANT THAT HE WAS GOING TO TRY AND FIRE HIM. MR.
FENSTERMACHER REPLIED BY EXPLAINING HIS POSITION ON THE USE OF OFFICIAL
TIME. MR. JONES THEN BEGAN TO ASSIGN PEOPLE TO THEIR JOBS, AND SAID TO
MR. FENSTERMACHER "GO ON OFFICIAL TIME, YOU'VE GOT 8 HOURS" (TR 80-81).
JESSE ALCALA, ANOTHER LABORER PRESENT AT THE MEETING, SUPPORTED THE
TESTIMONY OF MR. FERNSTERMACHER.
14. ALL WITNESSES TO THE APRIL 8 OR 9 INCIDENT HAVE A DEGREE OF BIAS.
MR. JONES AND MR. FENSTERMACHER ARE THE PRINCIPALS IN THE AFFAIR. MR.
HENDRICKS IS AN EX-UNION MEMBER WHO HAS DISPLAYED SOME ANIMOSITY TO BOTH
THE UNION AND MR. FENSTERMACHER. HE DOES NOT LIKE HAVING TO DO SO MUCH
OF MR. FENSTERMACHER'S WORK, AT A LOWER GRADE LEVEL, BECAUSE OF THE TIME
MR. FENSTERMACHER SPENDS ON UNION ACTIVITIES. MR. HENDRICKS WAS PROMOTED
TO A HIGHER JOB, JUST BEFORE CHRISTMAS 1981 AND, FOR THIS REASON, MAY
HAVE BEEN A WILLING WITNESS FOR MANAGEMENT. MR. ALCALA IS A UNION MEMBER
AND FRIENDLY TO MR. FENSTERMACHER. AS WITNESSES, MR. FENSTERMACHER AND
MR. ALCALA SEEMED TO BE HONEST AND SINCERE AND SURE ABOUT THE FACTS OF
THIS INCIDENT. MR. JONES AND MR. HENDRICKS SEEMED SOMEWHAT LESS CERTAIN,
AND LESS CANDID. I THEREFORE ACCEPT AS TRUE THE FENSTERMACHER-ALCALA
VERSION OF THE INCIDENT, AS SET FORTH IN FINDING 13, ABOVE.
COUNT 8(B) OF THE COMPLAINT
15. SIX WITNESSES GAVE TESTIMONY ON THIS COUNT; AND THERE IS SOME
CONFLICT AS TO DETAILS OF WHAT HAPPENED AND WHEN. NONE SEEMED TO BE
DELIBERATELY LYING. THEY ALL PARAPHRASED CONVERSATIONS AND RECALLED
EVENTS TO THE BEST OF THEIR RECOLLECTIONS. RECOLLECTIONS MAY WELL HAVE
BEEN UNCERTAIN AND VAGUE, SINCE THE CHARGES UPON WHICH THE COMPLAINT IS
BASED WERE NOT FILED UNTIL 4 MONTHS AFTER THE EVENTS INVOLVED HAD
OCCURRED. THE DELAY IN FILING WAS ON THE ADVICE OF THE UNION ATTORNEY,
WHO DID NOT THINK IT WISE TO BE FILING ADDITIONAL CHARGES WHILE
EXTENSIVE SETTLEMENT NEGOTIATIONS WERE ONGOING CONCERNING 22 OTHER
UNFAIR LABOR PRACTICES.
16. CERTAIN FACTS ARE UNDISPUTED, HOWEVER, AND ARE AS FOLLOWS.
A. SOMETIME IN EARLY MAY, AROUND THE NOON HOUR, MR. SUMMERS GOT WORD
TO MR. FENSTERMACHER THAT HE WANTED TO SEE HIM, IN HIS OFFICE. SHORTLY
THEREAFTER MR. FENSTERMACHER ARRIVED, IN THE COMPANY OF A UNION STEWARD,
GEORGE BASELY.
B. NORMALLY, MR. SUMMERS HAS NO DIRECT CONTACT WITH MR.
FENSTERMACHER, AS AN EMPLOYEE ON HIS STAFF. BECAUSE OF MR. SUMMERS'
UNION POSITIONS, HOWEVER, THEY DO MEET, FROM TIME TO TIME, OVER UNION
MANAGEMENT MATTERS. THEY HAVE ALSO MET ON AN OCCASION WHEN MR.
FENSTERMACHER WAS A GRIEVANT IN AN UNFAIR LABOR PRACTICE CHARGE.
C. THE AVOWED PURPOSE OF MR. SUMMERS, IN HAVING MR. FENSTERMACHER
COME TO HIS OFFICE, WAS TO FIND HOT HOW LONG, IN HIS OPINION, THE
NEGOTIATIONS WOULD TAKE, SO THAT MR. SUMMERS COULD INSTRUCT THE
SUPERVISOR OF THE GROUNDS CREW ON HOW TO PLAN THEIR WORK. MANAGEMENT HAD
TOLD MR. SUMMERS THAT IT WOULD TAKE UP TO 60 DAYS. MR. SUMMERS DID NOT
MAKE THIS INQUIRY OF THE UNION PRESIDENT, MR. GARCIA, WHO WAS ALSO A
PART OF THE NEGOTIATIONS TEAM, AND WHO, AS AN EMPLOYEE IN FOOD SERVICE,
DOES NOT FALL UNDER THE SUPERVISION OF MR. SUMMERS.
D. AT THE MEETING MR. SUMMERS TOLD MR. FENSTERMACHER THAT HE WOULD BE
WORKING A 8 A.M. TO 4:30 P.M. SHIFT FOR THE PURPOSE OF NEGOTIATING WITH
MANAGEMENT TO RESOLVE PENDING UNFAIR LABOR PRACTICE CHARGES. HE ASKED
MR. FENSTERMACHER HOW LONG HE FELT THE NEGOTIATIONS WOULD TAKE. WHEN
MR. FENSTERMACHER REPLIED THAT HE EXPECTED THEM TO TAKE THE FULL 60
DAYS, MR. SUMMERS ADMITS THAT HE TOLD MR. FENSTERMACHER: "WELL I'M SURE
YOU UNDERSTAND THAT THIS IS THE PEAK OF THE GROWING SEASON AND THAT THE
GROUNDS FORCE IS GOING TO BE SHORT-CHANGED WHILE YOU'RE GONE" (TR 294).
THEN MR. SUMMERS BROUGHT UP THE SUBJECT OF MR. FENSTERMACHER MEETING
WITH THE LABORERS OF THE GROUNDS CREW AND INFORMING THEM THAT WHILE MR.
FENSTERMACHER WAS ENGAGING IN THE NEGOTIATIONS, THE LABORERS WOULD HAVE
TO PERFORM HIS WORK.
E. THE IDEA OF HAVING MR. FENSTERMACHER MEET WITH THE GROUNDS CREW
GREW OUT OF THE FACT THAT MR. SUMMERS HAD BEEN HEARING COMPLAINTS THAT
SOME OF THE CREW OBJECTED TO HAVING TO PERFORM MR. FENSTERMACHER'S WORK,
WHILE HE CONDUCTED UNION ACTIVITIES.
F. EITHER BEFORE OR JUST AFTER THE SUMMERS-FENSTERMACHER MEETING, MR.
SUMMERS CALLED MR. JONES AND TOLD HIM TO BE PREPARED FOR SUCH A MEETING,
IF IT CAME TO PASS.
G. THE MEETING WAS HELD, IN MR. JONES' OFFICE. MR. JONES SUMMONED THE
GROUNDS CREW TO THE MEETING. MR. FENSTERMACHER EXPLAINED TO THEM THAT HE
WOULD BE ABSENT FOR A WHILE, AND THAT THEY WOULD BE DOING HIS WORK. SOME
OF THE GROUNDS CREW WERE APPARENTLY "VERY HOSTILE TO MR. FENSTERMACHER
ABOUT HIM BEING AWAY FROM HIS DUTY STATION AND THAT THEY HAD TO DO HIS
WORK" (GC 6).
17. RESPONDENT REGARDS AS "CRITICAL TO THE RESOLUTION OF THIS CASE"
THE DETERMINATION OF WHETHER OR NOT MR. FENSTERMACHER AND MR. SUMMERS
DEALT WITH EACH OTHER "AS LABOR-MANAGEMENT OFFICIALS OR EMPLOYER OR
EMPLOYEE" (RBR 15). THE EVIDENCE DEMONSTRATES THAT THEY DEALT WITH EACH
OTHER IN BOTH CAPACITIES. THE SUBJECT OF HOW LONG THE NEGOTIATIONS WOULD
TAKE WAS HANDLED AS ONE BETWEEN LABOR-MANAGEMENT OFFICIALS. THE SUBJECT
OF HOW MR. FENSTERMACHER'S WORK WAS TO GET DONE INVADED THE
EMPLOYEE-EMPLOYER AREA. UNION OFFICIALS HAD NEVER BEFORE BEEN ASKED TO
CONVENE A MEETING OF BARGAINING-UNIT EMPLOYEES TO EXPLAIN WHO WAS TO
PERFORM WHAT WORK AND WHY.
DISCUSSION AND CONCLUSIONS
THE PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT RESPONDENT HAS
ENGAGED IN THE ALLEGED UNFAIR LABOR PRACTICES.
COUNT 8(A) OF THE COMPLAINT
THIS COUNT, SET FORTH IN FULL ABOVE, AT PAGE 3, ALLEGES THAT A
SUPERVISOR OF THE UNION VICE-PRESIDENT TOLD THIS UNION OFFICIAL, IN THE
PRESENCE OF BARGAINING UNIT EMPLOYEES, THAT HE, THE SUPERVISOR, WAS
GOING TO CONTACT THE PERSONNEL OFFICE TO SEE WHETHER HE COULD GET THE
JOB OF THE UNION OFFICIAL "CONTRACTED OUT," SINCE HE SPENT SO MUCH TIME
ON UNION ACTIVITIES.
RESPONDENT CONCEDES THAT IF THE WORDS "CONTRACT OUT" WERE ACTUALLY
USED, A "SERIOUS ISSUE" WOULD BE RAISED (TR 124-125). THE CREDIBLE
EVIDENCE ESTABLISHES THAT THEY WERE USED. SEE FINDING 14, ABOVE. AND
THEY WERE USED AT A TIME WHEN, TO THE KNOWLEDGE OF EMPLOYEES IN THE
BARGAINING UNIT, RUMORS OF CONTRACTING OUT JOBS AT THE HOSPITAL WERE
RIFE. THEY WERE USED BY A SUPERVISOR WHO WAS IN A POSITION TO RECOMMEND
WHICH JOBS WERE FEASIBLE TO CONTRACT OUT, IN CONNECTION WITH FEASIBILITY
STUDIES BEING CONDUCTED IN CONNECTION WITH A GOVERNMENT-WIDE STUDY OF
THE MATTER. THEY WERE USED AT A TIME WHEN ALL THE GROUNDS CREW KNEW THAT
THE SUPERVISOR WAS "DISAPPOINTED" (TR 235) AT THE FACT THAT THE UNION
OFFICIAL, THE ONLY GARDENER ON HIS STAFF, WAS SPENDING ALMOST 100
PERCENT OF HIS TIME ON UNION ACTIVITIES. WHILE THE SUPERVISOR WAS
APPROVING THE REQUESTS OF THE UNION OFFICIAL FOR OFFICIAL TIME TO
PARTICIPATE IN UNION ACTIVITIES, HE WAS DEMONSTRABLY UNHAPPY ABOUT THE
SITUATION, WHICH LEFT HIM SHORT-HANDED.
EVEN IF THE SUPERVISOR HAD NOT USED THE WORDS "CONTRACT OUT," AND HAD
INSTEAD SAID WHAT RESPONDENT CLAIMS HE SAID, THAT HE WAS GOING TO FOR AN
"ALTERNATE SOURCE OR ANOTHER METHOD TO GET THE WORK DONE" (SEE FINDING
11, ABOVE), AN UNFAIR LABOR PRACTICE WOULD HAVE RESULTED. SUCH WORDS
SIGNAL "CONTRACT OUT," WHEN MENTIONED IN A SITUATION WHERE RUMORS OF
CONTRACTING OUT ARE STRIKING FEAR INTO THE MINDS OF EMPLOYEES, AND ARE
DIRECTED TO AN EMPLOYEE WHO HOLDS A JOB THAT COULD READILY BE CONTRACTED
OUT, AND IN WHOM THE SUPERVISOR IS "DISAPPOINTED," BECAUSE OF THE TIME
HE IS SPENDING ON UNION ACTIVITIES.
THE SUPERVISOR'S ACTIONS INTERFERED WITH THE STATUTORY FREEDOM GIVEN
TO A UNION OFFICIAL TO ACT FOR THE CHARGING PARTY IN THE CAPACITY OF A
REPRESENTATIVE, "WITHOUT FEAR OF PENALTY OR REPRISAL." 5 U.S.C. SEC.
7102. COMPARE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE
BASE, TEXAS, 5 FLRA NO. 24 (1980), WHERE INTERFERENCE WITH SECTION 7102
RIGHTS WAS HELD TO BE AN UNFAIR LABOR PRACTICE IN A SITUATION WHERE IT
WAS MADE CLEAR THAT FAILURE TO ABIDE BY A REQUEST MADE BY A SUPERVISOR
TO A UNION STEWARD COULD RESULT IN A LOSS OF JOBS FOR EMPLOYEES IN THE
BARGAINING UNIT. THE SUPERVISOR'S STATEMENT, MADE IN THE PRESENCE OF
OTHER BARGAINING-UNIT EMPLOYEES, ALSO HAD A CHILLING EFFECT ON THEIR
EXERCISE OF PROTECTED RIGHTS, FOR THEY TOO, AS LABORERS IN THE GROUNDS
CREW, HAD JOBS WHICH COULD FEASIBLY BE CONTRACTED OUT. COMPARE ARMY AND
AIR FORCE EXCHANGE SERVICE (AAFES), FT. CARSON, COLORADO, 6 FLRA NO. 108
(1981) WHERE INTERFERENCE WITH PROTECTED RIGHTS WAS HELD TO BE AN UNFAIR
LABOR PRACTICE IN A SITUATION WHERE EMPLOYEES WERE THREATENED WITH A
REDUCTION-IN-FORCE IF THEY CONTINUED TO FILE GRIEVANCES.
COUNT 9(B) OF THE COMPLAINT
COUNT 9(B), SET FORTH FULLY AT PAGE 3, ABOVE, ALLEGES THAT A
SUPERVISOR OF THE UNION VICE-PRESIDENT, DIRECTED THIS UNION OFFICIAL TO
MEET WITH HIS CO-WORKERS IN THE SAME BARGAINING UNIT AND EXPLAIN TO THEM
THAT HIS INVOLVEMENT IN SETTLEMENT NEGOTIATIONS MIGHT CAUSE THEM TO HAVE
TO DO HIS WORK, FOR AN EXTENDED PERIOD OF TIME.
IT IS UNDISPUTED THAT THE CHIEF OF THE SERVICE IN WHICH THE UNION
VICE-PRESIDENT WORKS, AS A GARDENER, DID ASK HIM TO HOLD SUCH A MEETING.
IT WAS A HERETOFORE, UNHEARD OF REQUEST. UNION OFFICIALS DO NOT
UNDERTAKE TO ADVISE EMPLOYEES ON WHAT WORK THEY ARE TO DO, OR WHY. THIS
IS PURELY A MANAGEMENT FUNCTION. IT PLACED THE UNION OFFICIAL IN THE
UNCOMFORTABLE POSITION OF HAVING TO ADVISE SOME ALREADY-DISGRUNTLED
CO-WORKERS THAT, FOR AN EXTENDED PERIOD OF TIME, THEY WOULD HAVE TO
CARRY HIS LOAD. IT SERVED THE PURPOSE OF EMBARRASSING THE UNION OFFICIAL
IN FRONT OF BARGAINING-UNIT EMPLOYEES AND ALIENATING THEM FROM ONE
ANOTHER.
WHETHER THE SERVICE CHIEF DIRECTED OR SUGGESTED THE MEETING MAKES
LITTLE DIFFERENCE. THE CHIEF SHOULD HAVE REALIZED THAT THE GARDENER
WOULD HARDLY DARE FLAUNT HIS CHIEF'S WISHES ON A MATTER THAT TOUCHED THE
EMPLOYEE-EMPLOYER RELATIONSHIP. SEE FINDING 17, ABOVE.
THIS ACTION ON THE PART OF ONE OF RESPONDENT'S ADMITTED AGENTS HAD A
CHILLING EFFECT ON THE EXERCISE OF PROTECTED RIGHTS AND AMOUNTED TO
INTERFERENCE WITH THE RIGHT OF EMPLOYEES TO JOIN AND ASSIST A LABOR
ORGANIZATION, A RIGHT PROTECTED IN SECTION 7102 OF THE STATUTE.
INTERFERENCE WITH THIS RIGHT IS AN UNFAIR LABOR PRACTICE, UNDER SECTION
7116(A)(1).
IN REACHING THE ABOVE FINDINGS AND CONCLUSIONS, I HAVE CONSIDERED THE
EVIDENCE AND ARGUMENT OF RESPONDENT THAT THE CREDIBILITY OF THE UNION
OFFICIAL INVOLVED SUFFERS BECAUSE HE MAY HAVE BEEN ACTING FOR PERSONAL
REASONS IN FILING THESE CHARGES, EVEN THOUGH, NORMALLY, THE REASONS FOR
FILING A CHARGE ARE IMMATERIAL. I HAVE FOUND MR. FENSTERMACHER TO HAVE
BEEN A CREDIBLE WITNESS, HOWEVER; AND IN SOME IMPORTANT RESPECTS, HIS
TESTIMONY WAS SUPPORTED BY OTHER EVIDENCE. RESPONDENT STRESSES THE FACT
THAT MR. FENSTERMACHER WAITED 4 MONTHS TO FILE THE CHARGES. I HAVE FOUND
THAT THIS WAIT WAS ON THE ADVICE OF COUNSEL, FOR A SOUND REASON, NAMELY
NOT TO ROCK THE BOAT WHILE ATTEMPTS WERE BEING MADE TO SETTLE OTHER
CHARGES. THE SETTLEMENT AGREEMENT WAS SIGNED BY THE UNION ON JUNE 30,
1981 (GC 4). THE CHARGES HERE AT ISSUE WERE SIGNED ON AUGUST 28, 1981;
AND THEY WERE SIGNED BY COUNSEL FOR THE UNION, NOT MR. FENSTERMACHER.
THEY WERE SIGNED AFTER THE UNION BECAME DISENCHANTED OVER RESPONDENT'S
"ATTITUDE" TOWARDS LABOR-MANAGEMENT MATTERS, FOLLOWING THE SETTLEMENT
AGREEMENT. SEE TR 1974.
RESPONDENT ALSO FINDS THE FAILURE OF MR. FENSTERMACHER TO RAISE
OBJECTIONS TO THE STATEMENTS OF HIS SUPERVISOR, AT THE TIME THEY WERE
MADE, A REFLECTION ON THE CREDIBILITY OF MR. FENSTERMACHER (RBR 8 AND
16). FOR A UNION OFFICIAL TO BIDE HIS TIME, WHEN ABOUT TO ENTER INTO
PROTRACTED NEGOTIATIONS OVER 22 OTHER UNFAIR LABOR PRACTICES, SEEMS MORE
A CREDIT TO HIS PRUDENCE, THAN A REFLECTION ON HIS CREDIBILITY.
REMEDY
IN FOOTNOTE 7 TO THE BRIEF FILED ON BEHALF OF THE GENERAL COUNSEL IT
IS STATED: "AS A REMEDY, COUNSEL FOR THE GENERAL COUNSEL SEEKS ON
APPROPRIATE NOTICE AND POSTING" (GCBR 11). SUCH A GENERALIZED STATEMENT
IS NOT VERY ENLIGHTENING, AND CERTAINLY NOT RESPONSIVE TO THE REQUEST
MADE, AT THE HEARING, THAT COUNSEL ATTACH TO ANY BRIEF FILED A DRAFT OF
THE NOTICE RECOMMENDED FOR POSTING, AND INCLUDE A STATEMENT AS TO
EXACTLY WHAT RELIEF WAS BEING SOUGHT. SEE TR 6-7.
COUNSEL FOR THE CHARGING PARTY ASSESSES, AS "THE MOST DIFFICULT ISSUE
HEREIN," THE MATTER OF THE REMEDY (GPBR 4). HE ARGUES FOR A "MORE
MEANINGFUL REMEDY" THAN THE TRADITIONAL ONE OF A CEASE AND DESIST ORDER,
COUPLED WITH A NOTICE (CPBR 4). IN THIS REGARD, HE NOTES THAT NOTICES
WERE POSTED IN CONNECTION WITH THE INFORMAL SETTLEMENT THAT THE REGIONAL
DIRECTOR HAD TO SET ASIDE BECAUSE OF CONTINUING VIOLATIONS. SEE FINDING
3, ABOVE. COUNSEL FOR THE CHARGING PARTY SUGGESTS THAT AN APPROPRIATE
ORDER WOULD BE "TO ORDER DISCIPLINARY ACTION AGAINST THE SUPERVISORY OR
OFFICIAL RESPONSIBLE" (CPBR 5) AND POINTS TO 5 U.S.C. 1206(G)(1), IN
WHICH A PROCEDURE IS PROVIDED FOR CASES WHERE THE SPECIAL COUNSEL OF THE
MERIT SYSTEM PROTECTION BOARD DETERMINES THAT DISCIPLINARY ACTION SHOULD
BE TAKEN AGAINST AN EMPLOYEE. THAT PROCEDURE, HOWEVER, INCLUDES A
PANOPLY OF DUE-PROCESS RIGHTS, INCLUDING THE RIGHT TO A WRITTEN
COMPLAINT CONTAINING A STATEMENT OF SUPPORTING FACTS, REASONABLE TIME TO
ANSWER, REPRESENTATION, A HEARING, AND TRANSCRIPT. SEE 5 U.S.C. 1207.
COUNSEL ASKS THAT THIS AUTHORITY ACT AS "THE DE FACTO SPECIAL COUNSEL"
(CPBR 5). WHILE I AGREE THAT CONGRESS VESTED A BROAD REMEDIAL POWER IN
THIS AUTHORITY, /4/ I DO NOT BELIEVE THAT THAT POWER EXTENDS AS FAR AS
THE CHARGING PARTY ARGUES.
IN THE EVENT, THE RECORD MADE IN THIS PROCEEDING WOULD NOT SUPPORT
SUCH A REMEDY. THE PARTIES HAVE ALREADY AGREED TO JOINT TRAINING
SESSIONS FOR UNION AND MANAGEMENT OFFICIALS. SEE GC 4. THIS IS A
COMMENDABLE STEP AND ONE WHICH SHOULD HELP MANAGERS AVOID THE TYPE OF
SITUATIONS FOUND HERE TO HAVE RESULTED IN UNFAIR LABOR PRACTICES. MR.
CORONADO, THE DIRECTOR OF THE HOSPITAL, WAS GENEROUS IN ALLOTTING TIME
TO THE UNION TO SETTLE THE 22 UNFAIR LABOR PRACTICE CHARGES AND DID,
ULTIMATELY, AGREE TO A SETTLEMENT. THERE IS NO EVIDENCE THAT THE
SETTLEMENT HAS BEEN BREACHED. THERE IS ALSO NO EVIDENCE BEFORE ME THAT
RESPONDENT HAD NO ARGUABLE DEFENSES TO THE CHARGES WHICH WERE FILED.
THERE IS EVIDENCE THAT NOT ALL OF THE UNION CHARGES HAVE BEEN
SUPPORTABLE. FOR EXAMPLE, THE CHARGE IN CASE NO. 6-CA-1373, INVOLVED IN
THIS CONSOLIDATED COMPLAINT, WAS WITHDRAWN AFTER A WITNESS TESTIFIED AND
RESPONDENT SUBPOENAED AND PRODUCED RECORDS FROM THE TELEPHONE COMPANY.
AS TO THE AGENTS OF RESPONDENT NAMED IN THIS COMPLAINT, THE RECORD
INDICATES THAT BOTH WOULD COMPLY WITH A CEASE AND DESIST ORDER. MR.
JONES IS APPARENTLY AN AFFABLE SUPERVISOR WHOSE BEHAVIOR, IN THIS CASE,
WAS "VERY UNUSUAL," AS EVEN THE UNION OFFICIAL ATTESTED (TR 70). MR.
SUMMERS IS FEARED BY THE UNION OFFICIAL AND DID APPEAR TO BE AN
AUTHORITARIAN TYPE OF SUPERVISOR. HOWEVER, AUTHORITARIANS WOULD BE MOST
LIKELY TO COMPLY WITH A CEASE AND DESIST ORDER FROM A
LEGALLY-CONSTITUTED AUTHORITY.
THUS IT APPEARS THAT A CEASE AND DESIST ORDER WILL SUFFICE, WITH A
NOTICE OF NO FURTHER INTERFERENCE WITH PROTECTED RIGHTS TO BE READ TO
EMPLOYEES OF THE GROUNDS SECTION, AND POSTED ON ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
READING OF THE NOTICE TO THE GROUNDS CREW IS DEEMED NECESSARY BECAUSE
THEY PERFORM THEIR WORK OUTSIDE AND MAY NOT HAVE READY ACCESS TO
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.
SUCH A READING IS ALSO DEEMED TO BE APPROPRIATE, UNDER THE CIRCUMSTANCES
OF THIS CASE.
ULTIMATE FINDINGS AND RECOMMENDED ORDER
THE GENERAL COUNSEL HAS SHOWN, BY A PREPONDERANCE OF THE EVIDENCE,
THAT RESPONDENT HAS ENGAGED IN UNFAIR LABOR PRACTICES, IN VIOLATION OF
SECTION 7116(A)(1) OF THE STATUTE.
ACCORDINGLY, IT IS HEREBY ORDERED THAT RESPONDENT SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, DISCOURAGING, OR EMBARRASSING WILLIAM
FENSTERMACHER, OR ANY OTHER
EMPLOYEE, IN THE EXERCISE OF THE RIGHT TO JOIN A UNION AND TO ENGAGE
IN UNION ACTIVITIES.
(B) IN ANY LIKEORT RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF RIGHTS ASSURED BY TITLE VII OF THE CIVIL SERVICE
REFORM ACT OF 1978.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF TITLE VII OF THE CIVIL SERVICE REFORM ACT OF
1978:
(A) POST AT AUDIE E. MURPHY MEMORIAL VETERANS HOSPITAL, SAN ANTONIO,
TEXAS, 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 DIRECTOR OF THE
HOSPITAL AND 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 COMMANDER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) HAVE READ, BY LARRY SUMMERS, IN THE PRESENCE OF J. O. JONES, AND
ALL OTHER SUPERVISORY
PERSONNEL OF THE GROUNDS SECTION OF THE ENGINEERING SERVICE, THE
ATTACHED NOTICE, AT A MEETING
CONVENED OF THE EMPLOYEES IN THE GROUNDS SECTION.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
DIRECTOR OF REGION VI OF THE AUTHORITY, IN WRITING, WITHIN 30 DAYS OF
THE DATE OF THIS ORDER
AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
/1/ AT THE HEARING, THE CHARGE IN CASE NO. 6-CA-1373 WAS WITHDRAWN BY
THE CHARGING PARTY; AND THE GENERAL COUNSEL MOVED TO WITHDRAW AND SEVER
COUNTS 9 AND 10(B) OF THE COMPLAINT IN THIS PROCEEDING, THOSE BEING THE
COUNTS CONCERNED IN CASE NO. 6-CA-1373. THE MOTION WAS GRANTED.
/2/ SECTION 7116(A)(1) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER
. . . ."
ONE SUCH RIGHT IS TO BE FOUND IN SECTION 7102, WHICH PROVIDES, IN
PERTINENT PART, THAT:
EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT. EXCEPT AS
OTHERWISE PROVIDED UNDER
THIS CHAPTER, SUCH RIGHT INCLUDES THE RIGHT-- . . .
(1) TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
REPRESENTATIVE AND THE RIGHT, IN
THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO
HEADS OF AGENCIES AND OTHER
OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS, OR
OTHER APPROPRIATE
AUTHORITIES. . . .
/3/ "GC" REFERS TO THE EXHIBITS OF THE GENERAL COUNSEL. OTHER
ABBREVIATIONS TO BE USED HEREIN ARE AS FOLLOWS. "R REFERS TO THE
EXHIBITS OF RESPONDENT, AND "CP" TO THOSE OF THE CHARGING PARTY.
MULTIPAGE EXHIBITS WILL BE REFERENCED BY EXHIBIT NUMBER FOLLOWED BY PAGE
OR PARAGRAPH NUMBER. "TR" REFERS TO THE TRANSCRIPT. "GCBR" REFERS TO THE
BRIEF OF THE GENERAL COUNSEL, "RBR" TO THAT OF RESPONDENT, AND "CPBR" TO
THAT OF THE CHARGING PARTY.
/4/ SECTION 7118(A)(7) OF THE STATUTE PROVIDES THAT:
IF THE AUTHORITY (OR ANY MEMBER THEREOF OR ANY INDIVIDUAL EMPLOYED BY
THE AUTHORITY AND
DESIGNATED FOR SUCH PURPOSES) DETERMINES AFTER ANY HEARING ON A
COMPLAINT UNDER PARAGRAPH (5)
OF THIS SUBSECTION THAT THE PREPONDERANCE OF THE EVIDENCE RECEIVED
DEMONSTRATES THAT THE
AGENCY OR LABOR ORGANIZATION NAMED IN THE COMPLAINT HAS ENGAGED IN OR
IS ENGAGING IN AN UNFAIR
LABOR PRACTICE, THEN THE INDIVIDUAL OR INDIVIDUALS CONDUCTING THE
HEARING SHALL STATE IN
WRITING THEIR FINDINGS OF FACT AND SHALL ISSUE AND CAUSE TO BE SERVED
ON THE AGENCY OR LABOR
ORGANIZATION AN ORDER--
"(A) TO CEASE AND DESIST FROM ANY SUCH UNFAIR LABOR PRACTICE IN WHICH
THE AGENCY OR LABOR
ORGANIZATION IS ENGAGED;
"(B) REQUIRING THE PARTIES TO RENEGOTIATE A COLLECTIVE BARGAINING
AGREEMENT IN ACCORDANCE
WITH THE ORDER OF THE AUTHORITY AND REQUIRING THAT THE AGREEMENT, AS
AMENDED, BE GIVEN
RETROACTIVE EFFECT;
"(C) REQUIRING REINSTATEMENT OF AN EMPLOYEE WITH BACKPAY IN
ACCORDANCE WITH SECTION 5596 OF
THIS TITLE; OR
"(D) INCLUDING ANY COMBINATION OF THE ACTIONS DESCRIBED IN
SUB-PARAGRAPHS (A) THROUGH (C)
OF THIS PARAGRAPH OR SUCH OTHER ACTION AS WILL CARRY OUT THE PURPOSE
OF THIS CHAPTER.
SECTION 7105(G) PROVIDES THAT:
IN ORDER TO CARRY OUT ITS FUNCTIONS UNDER THIS CHAPTER, THE AUTHORITY
. . .
(3) MAY REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST
FROM VIOLATIONS OF
THIS CHAPTER AND REQUIRE IT TO TAKE ANY REMEDIAL ACTION IT CONSIDERS
APPROPRIATE TO CARRY OUT
THE POLICIES OF THIS CHAPTER.
DAVID E. DAVENPORT, ATTORNEY FOR THE RESPONDENT
SUSAN E. JELEN, ATTORNEY FOR THE GENERAL COUNSEL
STEVEN M. ANGEL, ATTORNEY FOR THE CHARGING PARTY
APPENDIX
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, DISCOURAGE, OR EMBARRASS WILLIAM
FENSTERMACHER, OR ANY EMPLOYEE, IN THE EXERCISE OF THE RIGHT TO JOIN A
UNION OR TO ENGAGE IN UNION ACTIVITIES.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER TITLE VII OF
THE CIVIL SERVICE REFORM ACT OF 1978.
. . . (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, FEDERAL LABOR RELATIONS AUTHORITY, REGION 6, P. O.
BOX 2640, DALLAS, TEXAS. 75221 AND WHOSE TELEPHONE NUMBER IS (214)
767-4996. 770801 0000610
21 FLRA-ALJ; CASE NOS. 6-CA-1372 6-CA-1375 6-CA-1373 /1/ OCTOBER 8,
20 FLRA-ALJ; CASE NO. 6-CA-533 OCTOBER 7, 1982
VETERANS ADMINISTRATION, AUDI L. MURPHY MEMORIAL VETERANS HOSPITAL,
SAN ANTONIO, TEXAS, RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3511, AFL-CIO, CHARGING PARTY
BEFORE: ISABELLE R. CAPPELLO, ADMINISTRATIVE LAW JUDGE
DECISION
THIS IS A PROCEEDING UNDER TITLE VII OF THE CIVIL SERVICE REFORM ACT
OF 1978, 5 U.S.C. 7101 ET SEQ. (SUPP. IV, 1980, HEREINAFTER REFERRED TO
AS THE "STATUTE"), AND THE RULES AND REGULATIONS ISSUED THEREUNDER AND
PUBLISHED AT 5 C.F.R. 2411 ET SEQ.
PURSUANT TO A CHARGE FILED BY THE CHARGING PARTY, THE GENERAL COUNSEL
OF THE FEDERAL LABOR RELATIONS AUTHORITY ("AUTHORITY") INVESTIGATED AND
FILED THIS COMPLAINT. /1/ THE COMPLAINT ALLEGES THAT RESPONDENT HAS
VIOLATED SECTION 7116(A)(1) OF THE STATUTE, BY CONDUCTING A CAMPAIGN OF
HARASSMENT AGAINST JAMES CLAUSER BECAUSE OF HIS MEMBERSHIP IN, AND
ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3511, AFL-CIO ("UNION" OR "CHARGING PARTY"). /2/
A HEARING WAS HELD ON APRIL 27 AND 28, 1982, IN SAN ANTONIO, TEXAS.
THE PARTIES APPEARED, ADDUCED EVIDENCE, AND EXAMINED WITNESSES. BRIEFS
WERE FILED ON JULY 12, 1982. BASED UPON THE RECORD MADE IN THIS
PROCEEDING, MY OBSERVATION OF THE DEMEANOR OF THE WITNESSES, AND THE
BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OR LAW, AND
RECOMMENDED ORDER.
FINDINGS OF FACT
1. IT IS ADMITTED THAT RESPONDENT IS AN "AGENCY", AND THE CHARGING
PARTY IS A "LABOR ORGANIZATION", WITHIN THE MEANING OF THE SECTION
7103(A)(3) AND (4) OF THE STATUTE.
2. THE FOLLOWING PERSONS ARE INVOLVED IN THE ALLEGED UNFAIR LABOR
PRACTICES.
A. JAMES D. CLAUSER HAS WORKED IN THE POLICE SECTION OF THE AUDIE L.
MURPHY MEMORIAL V.A. HOSPITAL ("HOSPITAL") FOR APPROXIMATELY 7 1/2
YEARS. HE WAS ACTIVE IN ORGANIZING THE POLICY OFFICERS AND IN THEIR
BECOMING PART OF THE BARGAINING UNIT. HE REMAINED ACTIVE IN UNION
AFFAIRS AND THE PURSUIT OF EMPLOYEE RIGHTS, INCLUDING HIS OWN, DURING
THE PERIOD HERE RELEVANT. MANAGEMENT WAS WELL AWARE OF HIS UNION
ACTIVITIES. DURING THE PERIOD HERE RELEVANT, AN INVESTIGATION WAS
ONGOING INTO SEVERAL UNFAIR LABOR PRACTICE CHARGES FILED BY THE UNION ON
BEHALF OF MR. CLAUSER. ONE INVOLVED A COUNSELLING LETTER ISSUED BY MR.
CLAUSER'S SECOND-LINE SUPERVISOR, BALLARD F. DIXON. ANOTHER INVOLVED AN
EVALUATION OF OFFICER CLAUSER BY MR. DIXON. A COMPLAINT AGAINST
RESPONDENT AND NAMING MR. DIXON AS AN AGENT, AMONG OTHERS, WAS ISSUED ON
DECEMBER 28, 1979.
B. ELIJIO ("LEE") FUENTES HAS BEEN A CORPORAL AND TEAM SUPERVISOR IN
THE POLICE SECTION OF THE HOSPITAL SINCE MARCH 11, 1979. OFFICER CLAUSER
IS ONE OF THE THREE OFFICERS ON HIS TEAM.
C. BALLARD DIXON WAS RESPONSIBLE FOR THE POLICE SECTION FOR THE
PERIOD FROM MARCH 1973 TO AUGUST 1981. THERE WAS NO POLICE CHIEF, DURING
THIS PERIOD. MR. DIXON WAS ASSISTANT CHIEF OF THE ENGINEERING SERVICE.
HE IS NO LONGER EMPLOYED BY RESPONDENT.
D. LARRY SUMMERS IS CHIEF OF ENGINEERING SERVICE AND HAS HELD THAT
POSITION FOR ABOUT 10 YEARS.
E. JOSE R. CORONADO IS DIRECTOR OF THE HOSPITAL.
3. THE POLICE SECTION OPERATES WITH 4 TEAMS, WITH A TOTAL OF 16
OFFICERS AND 1 POLICE CHIEF. EACH TEAM HAS A WORKING SUPERVISOR, WHO IS
A CORPORAL, AND THREE OFFICERS. ONE SHIFT IS ON A BREAK, AT ALL TIMES.
THE TEAMS ROTATE SHIFTS. THE SWING SHIFT IS FROM 3 P.M. TO 11 P.M. THE
NEXT IS FROM 11 P.M. TO 7 A.M. THE NEXT IS FROM 7 A.M. TO 3 P.M.
ROTATION TAKES PLACE EVERY 7 DAYS.
4. DURING ALL TIMES HERE RELEVANT, THE POLICE SECTION WAS UNDER THE
ENGINEERING SERVICE. NOW, THE POLICE SECTION IS UNDERNEATH THE OFFICE OF
THE ASSISTANT DIRECTOR, AND HAS BEEN FOR APPROXIMATELY 1 1/2 YEARS.
5. COUNT 9(A) OF THE COMPLAINT ALLEGES THAT, ON OR ABOUT NOVEMBER 14,
1979, CORPORAL FUENTES "DELAYED IN GIVING OFFICER CLAUSER VA FORM 3230
UNTIL NOVEMBER 19, 1979, RESULTING IN CLAUSER BEING UNABLE TO APPLY FOR
ANOTHER POSITION" (GC 1 (T)). /3/ THE FOLLOWING FACTS AS TO THIS
ALLEGATION, HAVE BEEN ESTABLISHED.
A. SOMETIME IN NOVEMBER 1979, OFFICER CLAUSER APPLIED FOR A
MAINTENANCE MECHANIC POSITION THROUGH RESPONDENT'S PERSONNEL SERVICE.
HE EXPECTED TO RECEIVE A SUPPLEMENTAL EXPERIENCE STATEMENT FROM
PERSONNEL, BUT WAS NOT SURE OF WHEN IT WOULD BE SENT. AT ABOUT 10:30
P.M., ON SUNDAY, NOVEMBER 18, 1979, OFFICER CLAUSER WAS PREPARING TO GO
TO WORK ON THE 11 P.M. TO 7 A.M. SHIFT. FORM 3230, THE SUPPLEMENTAL
EXPERIENCE STATEMENT FOR THE MOST RECENT JOB HE HAD APPLIED FOR, FELL
OUT OF CORPORAL FUENTES' LOCKER. CORPORAL FUENTES GAVE OFFICER CLAUSER
THE STATEMENT, WHICH WAS DATED NOVEMBER 14, A WEDNESDAY, AND HAD A
DEADLINE OF MONDAY, NOVEMBER 19, FOR RETURN TO PERSONNEL. OFFICER
CLAUSER COMPLAINS THAT HE HAD INADEQUATE TIME TO COMPLETE THE STATEMENT.
OFFICER CLAUSER HAD WORKED ON FRIDAY, NOVEMBER 16, UNTIL 7 A.M., BUT HAD
NOT RECEIVED THE FORM AT THAT TIME. NO EFFORT HAD BEEN MADE TO REACH HIM
AT HIS HOME DURING THE TIME HE WAS ABSENT. OFFICER CLAUSER HAD HAD
SIMILAR PROBLEMS WITH NOT HAVING ADEQUATE TIME TO PREPARE THE
SUPPLEMENTAL STATEMENT, AND DECIDED TO FILE AN UNFAIR LABOR PRACTICE
CHARGE, RATHER THAN SUBMIT THE STATEMENT FOR THIS PARTICULAR JOB.
B. OFFICER CLAUSER DID NOT REQUEST THAT HE BE ALLOWED TO SPENT DUTY
TIME TO FILL OUT THE STATEMENT. OTHER EMPLOYEES HAVE REQUESTED SUCH
TIME, AND RECEIVED IT. THERE IS NO EVIDENCE THAT UNION MEMBERS
REQUESTING SUCH TIME HAVE BEEN DENIED IT. SUNDAY, THE DAY HE RECEIVED
THE FORM, IS CONSIDERED A "SLOW NIGHT" (TR 281); AND IT IS NORMAL
PROCEDURE TO ALLOW EMPLOYEES TO FILL OUT A FORM 3230, ON DUTY, ON A SLOW
NIGHT.
C. OFFICER CLAUSER COULD HAVE REQUESTED AN EXTENSION OF TIME TO
COMPLETE THE DOCUMENT; BUT HE DID NOT DO SO. HE DID NOT CONSIDER
GETTING THE JOB WORTH WAITING AROUND 1 HOUR, FOR THE PERSONNEL OFFICE TO
OPEN, TO REQUEST AN EXTENSION, OR TO MAKE A PHONE CALL, REQUESTING THE
EXTENSION.
D. BECAUSE OF BEING ON LEAVE, OFFICER CLAUSER WOULD NOT HAVE BEEN ON
DUTY TO RECEIVE THE FORM 3230, UNTIL THE TIME HE DID RECEIVE IT, IF THE
FORM DID NOT ACTUALLY REACH THE POLICE SECTION BY 7 A.M. ON FRIDAY,
NOVEMBER 16TH. WHILE CORPORAL FUENTES COULD HAVE CALLED HIM AT HOME,
HOME CALLS WERE DISCOURAGED BY OFFICER CLAUSER. HOWEVER, HE HAD NOT
OBJECTED TO HOME CALLS ON MATTERS SUCH AS THE FORM 3230.
E. ALL THE POLICE OFFICERS HAVE HAD A SIMILAR PROBLEM WITH RECEIVING
THESE FORMS. THERE IS NO EVIDENCE THAT THIS HAS HAPPENED ONLY TO UNION
MEMBERS.
F. THERE IS NO EVIDENCE THAT THE FORM 3230 AT ISSUE ACTUALLY LEFT
PERSONNEL ON NOVEMBER 14TH. MAIL FROM PERSONNEL IS ROUTED TO THE MAIL
ROOM FOR SORTING. MAIL FOR THE POLICE SECTION IS ROUTED TO ENGINEERING
SERVICE, WHERE IT IS SORTED AND PLACED IN THE POLICE STATION MAILBOX FOR
PICKUP. THE ENGINEERING SERVICE GETS A MAIN DELIVERY AT APPROXIMATELY 9
A.M. AND 3 P.M. THE POLICE SHIFT SUPERVISOR FOR THE EVENING SHIFT PICKS
UP MAIL FROM 3 TO 4 P.M. NORMALLY, ON WEEKENDS, THE MAIN OFFICE OF THE
ENGINEERING SERVICE IS LOCKED UP, AND NO ONE WORKS THERE. THE CHIEF OF
THE ENGINEERING SERVICE, MR. SUMMERS, ESTIMATED THAT IT TAKES 3 TO 4
DAYS FOR INTERNAL MAIL TO REACH THE POLICE SECTION FROM PERSONNEL. MR.
HICKS, A DRIVER WHO HAS WORKED IN THE ENGINEERING SECTION SINCE OCTOBER
5, 1980, AND WAS FORMERLY IN THE POLICE SECTION, ESTIMATED THAT IT WOULD
TAKE NO MORE THAN 1 1/2 DAYS. MR. HICKS CONCEDED THAT IT COULD TAKE
LONGER, HOWEVER.
G. OFFICER CLAUSER DOES NOT BELIEVE THAT CORPORAL FUENTES IN TO BLAME
"IN ANY WAY, SHAPE OR FORM" FOR THE DELAY IN HIS RECEIVING THE FORM 3230
(TR 55). OFFICER CLAUSER BELIEVES THAT MR. DIXON WAS THE CAUSE IN THE
DELAY. THIS FEELING IS BASED ON MR. DIXON'S GENERAL "ATTITUDE" TOWARDS
HIM (TR 55).
H. CORPORAL FUENTES ALSO APPLIED FOR THE MAINTENANCE MECHANIC
POSITION; AND HE RECEIVED HIS FORM 3230 FROM PERSONNEL AT THE SAME TIME
OFFICER CLAUSER RECEIVED HIS. CORPORAL FUENTES WAS GIVEN THE SAME TIME
TO REPLY. HE DID NOT DO SO, BECAUSE HE WAS NO LONGER INTERESTED IN THE
JOB.
6. COUNT 9(B) OF COMPLAINT ALLEGES THAT, DURING THE PERIOD FROM
NOVEMBER 19, 1979 UNTIL DECEMBER 25, 1979, MR. DIXON "FAILED AND REFUSED
TO APPROVE OR DISAPPROVE JAMES CLAUSER'S LEAVE REQUEST RESULTING IN
CLAUSER BEING UNABLE TO TAKE LEAVE ON DECEMBER 25, 1979" (GC 1 (T) AND
TR 61). THE FOLLOWING FACTS, AS TO THIS ALLEGATION, HAVE BEEN
ESTABLISHED.
A. EMPLOYEES FORECAST THEIR LEAVE 1 YEAR IN ADVANCE, PURSUANT TO THE
COLLECTIVE BARGAINING AGREEMENT. OFFICER CLAUSER DID NOT FORECAST
DECEMBER 25, 1979, AS A LEAVE DAY. THESE FORECASTS ARE NORMALLY FOR
BLOCKS OF TIME; BUT SINGLE DAYS CAN BE FORECAST.
B. ALSO PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT, SPECIAL
ATTENTION IS GIVEN TO HOLIDAYS SUCH AS CHRISTMAS. THIS MEANS ROTATION ON
A "FAIR AND EQUITABLE BASIS" (TR 321).
THE NORMAL PROCEDURE IS FOR OFFICER CLAUSER'S TEAM TO WORK THE SWING
SHIFT ON CHRISTMAS DAY. WORK ON THIS DAY IS A PREMIUM PAY. THUS, SOME
EMPLOYEES DESIRE WORK ON THIS HOLIDAY; AND SOMETIMES ONE HAS TO BE TOLD
TO TAKE CHRISTMAS DAY OFF. NORMALLY EACH TEAM MEMBER GETS EVERY FOURTH
CHRISTMAS OFF, IF REQUESTED.
D. IN 1979, OFFICER CLAUSER WAS OFF ON DECEMBER 20 (HOLIDAY LEAVE,
BECAUSE PRESIDENT CARTER DESIGNATED AN EXTRA DAY OFF FOR CHRISTMAS) AND
DECEMBER 21, 22, 23, AND 24 (REGULAR DAYS OFF). OFFICER CLAUSER REPORTED
TO WORK AT 3 P.M., ON DECEMBER 25.
E. ON NOVEMBER 18 OR 19, 1979, OFFICER CLAUSER PUT IN A LEAVE REQUEST
FOR DECEMBER 25. HE HAD HAD HOLIDAY LEAVE ON DECEMBER 25, 1978.
F. THE LEAVE REQUEST WENT TO MR. DIXON, WHO WAS THE APPROVING
OFFICIAL. IN 1978, OFFICER CLAUSER HAD FILED AN UNFAIR LABOR PRACTICE
CHARGE OVER THE REFUSAL OF MR. DIXON TO GRANT THE CHRISTMAS LEAVE
REQUEST OF OFFICER CLAUSER. THAT CHARGE WAS SUBSEQUENTLY SETTLED; AND
OFFICER CLAUSER'S REQUEST FOR 1978 CHRISTMAS DAY LEAVE WAS GRANTED.
G. THE 1979 CHRISTMAS DAY LEAVE REQUEST NEVER CAME BACK, APPROVED OR
DISAPPROVED. THERE IS NO AGENCY REGULATION REQUIRING THE RETURN OF SUCH
REQUESTS. ACTIONS ON THE REQUESTS ARE RELAYED TO OFFICERS IN THE POLICE
SECTION THROUGH THE CORPORALS OF EACH TEAM. IN DECEMBER 17, 1979,
OFFICER CLAUSER MADE A REQUEST TO CORPORAL FUENTES FOR THE RETURN OF HIS
LEAVE APPLICATION. LATER, ON DECEMBER 31, HE WROTE MR. DIXON AND, INTER
ALIA, ASKED FOR IT BACK.
H. SCHEDULING OF HOLIDAY LEAVE FOR THE POLICE SECTION IS COMPLEX;
AND IT TAKES ALMOST TO THE LAST MINUTE TO WORK THINGS OUT.
I. MR. DIXON TESTIFIED AS TO WHY HE DID NOT GRANT 1979 CHRISTMAS DAY
LEAVE TO OFFICER CLAUSER, OR RETURN HIS LEAVE REQUEST. HE TESTIFIED THAT
THE COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT "THERE BE EQUAL--
EXCUSE ME, IMPARTIAL I GUESS IS THE WORD, GRANTING OF LEAVE ON CERTAIN
PRIME HOLIDAY DAYS, OF WHICH CHRISTMAS AND THANKSGIVING ARE TWO OF
THEM;" AND THAT, "THEREFORE, IT (WAS) NECESSARY TO DETERMINE WHO HAD
LAST TAKEN LEAVE AND WHO WAS NEXT IN LINE" (TR 241). ARTICLE 20, SECTION
3 OF THE AGREEMENT STATES THAT: "SUPERVISORS SHALL BE RESPONSIBLE FOR
SCHEDULING ANNUAL LEAVE ON AN EQUITABLE BASIS WITH DUE REGARD TO THE
NEEDS OF THE SERVICE" (R 1.1). MR. DIXON TESTIFIED THAT A STIPULATION TO
THE AGREEMENT PROVIDES THAT, FOR EXAMPLE, IN DECIDING WHO GETS ANNUAL
LEAVE ON THANKSGIVING, YOU LOOK BACK TO SEE WHO GOT IT LAST YEAR, AND
THEN IT GOES TO SOMEONE ELSE. THE UNION PRESIDENT AFFIRMED THIS
INTERPRETATION. SEE TR 322. MR. DIXON TESTIFIED THAT HE DID NOT HAVE
POSSESSION OF OFFICER CLAUSER'S LEAVE REQUEST FOR DECEMBER 25, ALTHOUGH
HE KNEW OF IT, AND DID SEE IT. HE TESTIFIED THAT THE TIMEKEEPER HAD
POSSESSION OF IT AND THAT SHE "APPARENTLY DISCARDED IT" (TR 241), AS
"SHE HAD NO REASON TO RETAIN (IT) AFTER THE DECISION WAS MADE AS TO WHO
WAS GOING TO BE ON LEAVE" (TR 255-256). HE TESTIFIED THAT HE DETERMINED
WHO HAD LAST CHRISTMAS OFF, BY RESEARCHING THE TIME AND ATTENDANCE
RECORDS, AND FOUND THAT ONLY ONE OFFICER WAS ON ANNUAL OR HOLIDAY LEAVE,
ON DECEMBER 25, 1978, AND THAT WAS OFFICER CLAUSER. HE TESTIFIED THAT
OTHER OFFICERS WERE OFF DUTY ON THAT DAY, BUT WERE ON "SCHEDULED" OR
"NORMAL" DAYS OFF (TR 243). OFFICERS HAVE A COMPLEX SYSTEM OF DAYS ON
AND OFF, WHEREBY THEY END UP, DURING A 4-WEEK PERIOD, OF BEING OFF 4
DAYS IN A ROW. HE TESTIFIED THAT NORMAL DAYS OFF WERE NOT CONSIDERED IN
MAKING UP THE LEAVE SCHEDULE FOR CHRISTMAS 1979. SEE TR 243-244. THE
DECEMBER 25, 1979, TIME SHEETS WERE RECEIVED INTO EVIDENCE, WITH A
STIPULATION THAT THEY WERE ACCURATE. SEE TR 244-245. THEY SUPPORT THE
TESTIMONY OF MR. DIXON THAT ONLY OFFICER CLAUSER TOOK HOLIDAY LEAVE ON
DECEMBER 25, 1978. SEE R 4.2 AND TR 277.
J. CORPORAL FUENTES EXPLAINED THAT OFFICER CLAUSER BECAME AWARE, ON
DECEMBER 17, 1979, THAT HE WAS NOT TO GET CHRISTMAS DAY OFF, AS LEAVE.
HE TESTIFIED THAT THERE IS A "PRIME TIME, NOVEMBER 15 THROUGH THE 31ST
OF DECEMBER;" THAT A LIST IS CONTROLLED BY THE SUPERVISOR WOULD CONSIDER
WHO HAD LAST CHRISTMAS OFF. HE TESTIFIED THAT OFFICER CLAUSER WAS
SCHEDULED FOR THE NEXT HOLIDAY, WHICH BECAME DECEMBER 24, WHEN DECLARED
BY PRESIDENT CARTER A FEW DAYS BEFORE CHRISTMAS DAY, 1979; AND SO
OFFICER CLAUSER GOT THAT HOLIDAY. (OFFICER CLAUSER ACTUALLY TOOK THE
EXTRA DAY OFF ON DECEMBER 20, BECAUSE DECEMBER 24 WAS HIS REGULAR DAY
OFF.) HE TESTIFIED THAT IF THE 24TH HAD NOT BEEN DECLARED A HOLIDAY,
OFFICER CLAUSER WOULD HAVE GOTTEN THE 25TH OFF, PROVIDED NO OTHER
OFFICER VOLUNTEERED FOR IT. HE TESTIFIED THAT A VOLUNTEERING OFFICER
COULD PREEMPT OFFICER CLAUSER BECAUSE OFFICER CLAUSER HAD HOLIDAY LEAVE
ON CHRISTMAS DAY 1978. WHEN OFFICER MCGEE "VOLUNTEERED," HE RECEIVED THE
LEAVE FOR CHRISTMAS DAY 1979. THIS WAS ALL IN ACCORDANCE WITH NORMAL
PROCEDURES.
K. CORPORAL FUENTES APPEARED TO AN UNBIASED, KNOWLEDGEABLE, AND
HONEST WITNESS. HIS TESTIMONY AS TO THE SYSTEM FOR GRANTING LEAVE ON
DECEMBER 25, 1979 IS SUPPORTED BY THAT OF MR. DIXON, AND THE UNION
PRESIDENT. I THEREFORE FULLY CREDIT HIS TESTIMONY, AS SET FORTH IN
FINDING 6(J), ABOVE.
L. MR. DIXON, HAVING HAD SOME DISAGREEMENTS WITH OFFICER CLAUSER IN
THE PAST, CANNOT BE REGARDED AS TOTALLY UNBIASED. HOWEVER, HE IS NO
LONGER AN EMPLOYEE OF RESPONDENT AND APPEARED TO GIVE HONEST AND CANDID
TESTIMONY, SOME SUPPORTED BY DOCUMENTARY AND OTHER TESTIMONY. I
THEREFORE CREDIT HIS TESTIMONY AS SET FORTH IN FINDING 6(I), ABOVE.
7. COUNT 9(C) OF THE COMPLAINT ALLEGES THAT: "ON DECEMBER 14, 1979,
BALLARD DIXON PUBLISHED A NOTIFICATION TO ALL EMPLOYEES STATING THAT
JAMES CLAUSER WAS THE ONLY EMPLOYEE WHO TOOK LEAVE DURING CHRISTMAS
1978" (GC 1 (T)). THE FOLLOWING FACTS, AS TO THIS ALLEGATION, WERE
ESTABLISHED.
A. JAMES CLAUSER WAS THE ONLY POLICE OFFICER WHO TOOK LEAVE ON
CHRISTMAS DAY, 1978. SEE FINDINGS 6(I), (J), (K), AND (1), ABOVE.
B. MR. DIXON ROUTED NOTICE, AS ALLEGED, TO THE CORPORALS ON EACH OF
THE FOUR TEAMS, BY HAVING IT PLACED IN THEIR LOCKER BOXES, WHICH IS A
NORMAL PROCEDURE. THE NOTICE DID NOT INDICATE THAT IT SHOULD BE POSTED
ON THE POLICE BULLETIN BOARD, OR IN THE POLICE "PASS-ON BOOK" (TR 291),
METHODS NORMALLY USED TO PUBLISH INFORMATION GENERALLY. HOWEVER, THE
NOTICE WAS OF A TYPE WHICH WOULD NOT BE KEPT SECRET, AND COULD BE SEEN
BY EMPLOYEES LOOKING IN THE BOX, OR ON THE DESK OF A SUPERVISOR.
CORPORAL FUENTES DID NOT POST THE NOTICE, AND NEVER SAW IT ON THE
BULLETIN BOARD, OR IN THE PASS-ON-BOOK.
C. THE NOTICE STATES:
RE: HOLIDAY ROUTINE-- CHRISTMAS
ALL THREE WATCHES MAY BE REDUCED TO THREE OFFICERS ON DECEMBER 24 AND
25. THOSE SCHEDULED
TO WORK BUT EXCUSED WILL BE OFF DUTY WITHOUT BEING CHARGED FOR LEAVE.
ACCORDING TO RECORDS, THE FOLLOWING WERE EXCUSED LAST CHRISTMAS:
OFFICER CLAUSER.
PLEASE MAKE RECOMMENDATIONS.
(GC 4) MR. DIXON EXPLAINED THAT OFFICER CLAUSER'S NAME BEING THE ONLY
ONE ON THE LIST TOLD THE SUPERVISORS OF THE OTHER TEAMS THAT THEY DID
NOT HAVE ANYONE IN THAT CATEGORY AND TO MAKE THEIR RECOMMENDATIONS
ACCORDINGLY. SEE TR 250-251. THIS NOTICE WAS THE BEGINNING OF A
PROCEDURE WHEREBY, THE NAME OF THE PERSON WHO HAD TAKEN A HOLIDAY THE
PRIOR YEAR APPEARS ON A ROSTER. SEE TR 201.
D. EMPLOYEES OTHER THAN OFFICER CLAUSER AND CORPORAL FUENTES HAD
KNOWLEDGE OF THE DECEMBER 14, NOTICE. THEY THOUGHT, MISTAKELY, THAT
OTHER OFFICERS HAD BEEN ON LEAVE STATUS LAST CHRISTMAS. THUS, THEY
THOUGHT THAT OFFICER CLAUSER WAS SINGLED OUT BECAUSE HE WAS "ONE OF THE
LOCAL UNION STEWARDS" (TR 180-181). EX-OFFICER HICKS, WHO SO TESTIFIED,
CONCEDED THAT IT WOULD NOT HAVE BEEN "UNUSUAL" FOR OFFICER CLAUSER'S
NAME TO BE THE SOLE NAME, IF HE WERE THE ONLY OFFICER TO HAVE BEEN
EXCUSED (TR 196).
E. OFFICER CLAUSER FIRST HEARD ABOUT THE NOTICE FROM CORPORAL SHAW.
THEN HE HEARD OTHER OFFICERS TALKING AND LAUGHING ABOUT THE NOTICE. ONE
SAID: "WELL, THERE THEY GO AGAIN, THEY'RE AT IT AGAIN WITH CLAUSER" (TR
159). AFTER THAT, OFFICER CLAUSER OBTAINED A COPY OF THE NOTICE FROM
CORPORAL SHAW.
8. COUNT 9(D) OF THE COMPLAINT ALLEGES THAT: "ON DECEMBER 28, 1979,
JAMES CLAUSER WAS INFORMED THAT LEE FUENTES WAS REQUIRED TO COMPLETE
CLAUSER'S EVALUATION IN PENCIL IN ORDER THAT LARRY SUMMERS COULD MAKE
CHANGES" (GC 1(T)). THE FOLLOWING FACTS, AS TO THIS ALLEGATION, HAVE
BEEN ESTABLISHED.
A. IN ORDER TO ASSURE UNIFORM AND EQUITABLE EVALUATION OF EMPLOYEES,
RESPONDENT HAS A REQUIREMENT THAT APPRAISALS BE REVIEWED. SINCE THERE
IS ROOM ON THE APPRAISAL FORM FOR ONLY ONE RATING, THE APPRAISER AND THE
REVIEWER MUST REACH A CONSENSUS. AN APPRAISAL IS USUALLY GOOD FOR 6
MONTHS.
B. FOR AT LEAST 8 YEARS, IT HAS BEEN THE NORMAL PROCEDURE, IT
ENGINEERING SERVICES, FOR FIRST-LINE SUPERVISORS TO FILL OUT APPRAISALS
FORMS IN PENCIL, OR DISCUSS THEN WITH MR. SUMMERS, CHIEF OF ENGINEERING
SERVICES, OR HIS ASSISTANT CHIEF, MR. DIXON. THE CHIEF IS RESPONSIBLE
FOR FILLING THEM IN INK.
C. MAXIMUM RATINGS ON APPRAISAL FORMS DENOTE OUTSTANDING EMPLOYEES
WHOSE NAMES ARE SUBMITTED FOR REWARDS, UNDER A RECOGNITION PROGRAM.
EVALUATIONS ON APPRAISAL FORMS, AND SUBMISSIONS FOR REWARDS, ARE KEPT IN
LINE; AND ONE IS NOT NORMALLY DONE WITHOUT THE OTHER. FEW EMPLOYEES IN
ENGINEERING SERVICES ARE REGARDED AS MERITING MAXIMUM RATINGS.
D. CORPORAL FUENTES RECEIVED HIS FIRST SUPERVISORY JOB FOR RESPONDENT
ON MARCH 11, 1979. HE BECAME THE SUPERVISOR FOR THE POLICE TEAM ON WHICH
HE HAD BEEN WORKING. HE RECEIVED NO TRAINING ON RESPONDENT'S WAY OF
DOING APPRAISALS. HE BEGAN GIVING MAXIMUM RATINGS TO ALL THE TEAM
MEMBERS, INCLUDING ONE TO OFFICER CLAUSER, IN OCTOBER 1979. HE FILLED
THEM IN, IN INK, AND FORWARDED THEM TO THE PERSONNEL OFFICE. BECAUSE THE
PERSONNEL OFFICE DID NOT HAPPEN TO SEND THESE APPRAISALS BACK TO
ENGINEERING SERVICES FOR A REVIEWER'S SIGNATURE, THE CHIEF AND ASSISTANT
CHIEF OF ENGINEERING SERVICES WERE UNAWARE OF THESE MAXIMUM RATINGS
BEING GRANTED.
E. SOMETIME DURING THE LATTER PART OF DECEMBER 1979, OFFICER CLAUSER
APPLIED FOR A JOB AS A PAINTER. SOMETIME AFTER DECEMBER 28, CORPORAL
FUENTES GAVE HIM A REFERENCE SLIP WITH AN ATTACHED SUPPLEMENTAL
EXPERIENCE STATEMENT. CORPORAL FUENTES REMOVED ONE SHEET AND TOLD
OFFICER CLAUSER THAT HE HAD TO MAKE AN EVALUATION ON OFFICER CLAUSER, IN
PENCIL, AND TAKE IT TO MR. SUMMERS, THE CHIEF OF ENGINEERING. OFFICER
CLAUSER UNDERSTOOD THAT AN EVALUATION FOR JOB APPLICATIONS WAS VALID FOR
6 MONTHS, AND DID NOT HAVE TO BE REPEATED DURING THAT TIME. HE HAD
PREVIOUSLY SIGNED AN EVALUATION MADE BY CORPORAL FUENTES, IN OCTOBER
1979. OFFICER CLAUSER HAD NEVER BEEN GIVEN AN EVALUATION IN PENCIL
BEFORE AND CONSIDERED THIS ANOTHER JOB. OFFICER CLAUSER WAS GIVEN NO
EXPLANATION OF WHY THE EVALUATION WAS TO BE IN PENCIL AND THEN SENT TO
MR. SUMMERS. EVEN AT THE HEARING ON THIS CASE, OFFICER CLAUSER WAS
UNAWARE OF HOW THE APPRAISER AND THE REVIEWER GET TOGETHER TO REACH A
CONSENSUS ON AN APPRAISAL. HE KNOWS OF ONE OTHER UNION MEMBER AND POLICE
OFFICER WHOSE APPRAISAL WAS FILLED OUT IN PENCIL, AND ALSO KNOWS THAT HE
HAS NOT BEEN THE SUBJECT OF HARASSMENT BECAUSE OF UNION ACTIVITY.
HOWEVER, THIS POLICE OFFICER WAS NOT AS ACTIVE IN UNION MATTERS AS
OFFICER CLAUSER.
F. CORPORAL FUENTES GAVE OFFICER CLAUSER A "MAXIMUM" RATING, ON
JANUARY 3, 1980, AND SHOWED IT TO HIM. CONTRARY TO INSTRUCTIONS,
CORPORAL FUENTES FILLED IN THE APPRAISAL, IN INK, AND TOOK IT DIRECTLY
TO THE PERSONNEL OFFICE, AND ASKED THAT IT BE ROUTED TO ENGINEERING
SERVICE. HE DID THIS BECAUSE HE WAS UNABLE TO LOCATE EITHER MR. SUMMERS
ON MR. DIXON. THE INSTRUCTIONS HAD READ: "PLEASE MARK UP IN PENCIL AND
COME AND TALK TO ME" (R14).
G. SUBSEQUENTLY THE PERSONNEL OFFICE ROUTED THE JANUARY 3 APPRAISAL
TO MR. SUMMERS FOR SIGNATURE. MR. SUMMERS REFUSED TO SIGN IT BECAUSE HE
DISAGREED WITH THE RATING. HE DID NOT CONSIDER OFFICER CLAUSER AS ONE OF
THE FEW "OUTSTANDING" EMPLOYEES IN ENGINEERING SERVICES (TR 229).
H. THE JANUARY 3 APPRAISAL ON OFFICER CLAUSER WAS REDONE AND CAME OUT
"MARGINAL," RATHER THAN "MAXIMUM" (TR 115).
I. THE DECEMBER 31, 1979, COMMUNICATION FROM MR. SUMMERS TO CORPORAL
FUENTES, TO MARK THE OFFICER CLAUSER APPRAISAL IN PENCIL, WAS THE FIRST
TIME CORPORAL FUENTES HAD BEEN SO INSTRUCTED. THIS WAS BECAUSE MR. DIXON
HAD BEEN REVIEWING APPRAISALS IN THE POLICE SECTION AND HAD BEEN
VERBALLY COMMUNICATING WITH CORPORAL FUENTES ABOUT THEM. MR. DIXON WAS
ABSENT IN DECEMBER 1979, HOWEVER. MR. SUMMERS ASKED FOR THE PENCIL
EVALUATION, RATHER THAN A VERBAL COMMUNICATION, PRIMARILY BECAUSE
CORPORAL FUENTES WORKED A SHIFT STARTING AT 3 P.M., AND THEY WOULD ONLY
HAVE UNTIL 4:30 P.M. TO DISCUSS THE MATTER.
9. COUNT 9(E) ALLEGES THAT: "ON MARCH 27, 1980, JOSE R. CORONADO
INFORMED JAMES CLAUSER THAT HE WOULD NOT RECEIVE THE BACKPAY IN CASE NO.
63-8322 WHICH THE UNION HAD SETTLED UPON IN A PARTY SETTLEMENT" (GC 1
(T)). THE FOLLOWING FACTS RELEVANT TO THIS ALLEGATION WERE ESTABLISHED:
A. PARAGRAPH (3) OF THE SETTLEMENT STATES: "MANAGEMENT AGREES TO
SUBMIT A REQUEST FOR AUTHORIZATION TO VA CENTRAL OFFICE TO PAY MR.
JAMES D. CLAUSER 50 PERCENT OF THE NIGHT SHIFT DIFFERENTIAL AND SUNDAY
PREMIUM PAY CLAIMED FOR THE PERIOD NOVEMBER THROUGH DECEMBER 1977." SEE
GC 6 AND R 11.5. THE SETTLEMENT INVOLVED CONCERNED AN UNFAIR LABOR
PRACTICE CHARGE RELATING TO A WORK SHIFT ASSIGNMENT IN THE POLICE
SECTION. THE AMOUNT IN QUESTION WAS "AT MOST $10, MAYBE $15" (TR
162-163). THE SETTLEMENT WAS REACHED ON SEPTEMBER 14, 1978, JUST PRIOR
TO A HEARING ON THE MATTER, AND WAS READ INTO THE RECORD BY THE
ADMINISTRATIVE LAW JUDGE. SEE R 11. APPARENTLY OFFICER CLAUSER HAD NOT
ACTUALLY WORKED DURING THE PERIOD CLAIMED AND RESPONDENT WAS CONCERNED
ABOUT THE "LEGALITY" OF PAYING HIM FOR SUCH TIME (TR 226).
B. THE "BIGGEST PROBLEM" CONCERNED WITH THE CASE, AS FAR AS OFFICER
CLAUSER WAS CONCERNED, WAS DOING SOMETHING ABOUT THE PERSON THEN SERVING
AS POLICE CHIEF (TR 129). UPON BEING ASSURED THAT THAT PERSON WAS
LEAVING THE HOSPITAL, AND SECONDARILY, THAT OFFICER CLAUSER WOULD
RECEIVE "SOME TYPE OF MONEY, WHETHER IT BE A NICKEL OR A PENNY," OFFICER
CLAUSER AGREED TO THE SETTLEMENT, ACCORDING TO HIS TESTIMONY (TR 129).
C. THE POLICE CHIEF TO WHOM OFFICER CLAUSER OBJECTED DID LEAVE THE
HOSPITAL SHORTLY AFTER THE SETTLEMENT WAS ACHIEVED. OFFICER CLAUSER
ADMITS THAT DEPARTURE TO HAVE BEEN "THE MAJOR PART" OF THE AGREEMENT (TR
134). NEVERTHELESS, "THAT ONE NICKEL OR THAT ONE PENNY WAS SIGNIFICANT
TO (OFFICER CLAUSER), BECAUSE (HE) WAS GOING TO FRAME THAT AND PUT THAT
UP ON THE WALL" (TR 134).
D. ON JANUARY 5, 1979, RESPONDENT FORWARDED THE TRANSCRIPT OF THE
HEARING TO THE VA CENTRAL OFFICE, AFTER DISCUSSING IT BY TELEPHONE.
E. ABOUT 8 OR 9 MONTHS AFTER THE SETTLEMENT, OFFICER CLAUSER STARTED
ASKING QUESTIONS ABOUT HIS BACKPAY. HE REALIZED, OF COURSE, THAT
"PAPERWORK TAKES A WHILE, ESPECIALLY WHEN YOU'RE DEALING OUTSIDE OF THE
V.A. HOSPITAL" (TR 136). HE AND THE UNION BOTH MADE SEVERAL INQUIRIES
ABOUT THE MATTER TO MANAGEMENT. THE PERSONNEL OFFICE RESPONDED BY
CONTACTING THE CENTRAL OFFICE. THE PERSONNEL OFFICE RESPONDED BY
CONTACTING THE CENTRAL OFFICE. OFFICER CLAUSER FELT THAT HE AND THE
UNION SHOULD NOT HAVE HAD TO MAKE THESE INQUIRIES, AND THAT THE
PERSONNEL OFFICE SHOULD HAVE CHECKED ON THE MATTER, ON ITS OWN. SEE TR
138-139. APPARENTLY, THE MATTER GOT LOST IN THE FILES OF VA CENTRAL
OFFICE. SEE R 21.
F. FINALLY, ON MARCH 19, 1980, VA CENTRAL OFFICE NOTIFIED MR.
CORONADO THAT THERE WAS, LEGALLY, "NO AUTHORITY" TO PAY OFFICER CLAUSER
(R 22.2). ON MARCH 27, 1980, MR. CORONADO SO NOTIFIED OFFICER CLAUSER.
G. OFFICER CLAUSER NEVER INQUIRED FURTHER AS TO JUST WHY HE WAS NOT
GOING TO RECEIVE BACKPAY. HE FELT THAT MANAGEMENT SHOULD COME TO HIM
ABOUT THE MATTER.
DISCUSSION AND CONCLUSIONS
THE ALLEGED "CAMPAIGN OF HARASSMENT" AGAINST OFFICER CLAUSER, BECAUSE
OF HIS "MEMBERSHIP IN AND ACTIVITIES ON BEHALF OF AFGE LOCAL 3511" (TR
5), WAS NOT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE. THE PROOF
ADDUCED AS TO THE SO-CALLED "HARASSING INCIDENTS WHICH INTIMIDATED AND
COERCED MR. CLAUSER IN HIS DAILY 1OUTINE" (TR 5), EVEN WHEN VIEWED IN
THEIR "TOTALITY" (GCBR 5), DOES NOT MEET THIS STATUTORY BURDEN. SEE 5
U.S.C. 7118(A)(7).
DELAY IN RECEIVING MAIL, THE FOCUS OF THE COUNT 9(A) ALLEGATION, WAS
ESTABLISHED TO BE AN UNFORTUNATE FACT OF LIFE IN THE POLICE SECTION THAT
IS SUFFERED BY UNION AND NON-UNION EMPLOYEES ALIKE. THE LEAVE REQUEST
MATTER, THE FOCUS OF COUNT 9(B), WAS ESTABLISHED TO HAVE BEEN HANDLED IN
ACCORDANCE WITH NORMAL PROCEDURES, AND HAS BEEN APPLIED TO UNION AND
NON-UNION EMPLOYEES ALIKE. THE SINGLING OUT OF OFFICER CLAUSER, AS THE
ONLY EMPLOYEE ON THE POLICE FORCE TO TAKE LEAVE DURING CHRISTMAS 1978,
THE FOCUS OF COUNT 9(C), WAS TRUE; BUT THE FACT WAS PUBLISHED, BY
MANAGEMENT ONLY TO ITS SUPERVISORS ON THE POLICE FORCE FOR A LEGITIMATE
PURPOSE-- TO ASSIST THE SUPERVISORS IN MAKING RECOMMENDATION FOR
CHRISTMAS LEAVE IN 1978, IN ACCORDANCE WITH NORMAL PRACTICE, I.E.
WHOEVER TOOK CHRISTMAS LEAVE IN 1978 WAS NOT ENTITLED TO IT, IN 1979,
UNLESS NO ONE ELSE WANTED IT. THE ORDER TO PENCIL IN OFFICER'S CLAUSER'S
EVALUATION, THE FOCUS OF COUNT 9(D), WAS SHOWN TO BE A NORMAL PROCEDURE,
APPLIED TO UNION AND NON-UNION EMPLOYEES ALIKE. THE SETTLEMENT
AGREEMENT CONCERNING BACKPAY FOR OFFICER CLAUSER, THE FOCUS OF COUNTY
9(E), WAS HONORED BY RESPONDENT, WHEN IT REQUESTED ADVICE FROM THE
CENTRAL OFFICE ON THE LEGALITY OF PAYING IT; AND ANY DELAY IN GETTING
THE ADVICE WAS THE FAULT OF THE VA CENTRAL OFFICE AND CANNOT BE VIEWED
AS A WAY CONCEIVED BY RESPONDENT TO HARASS OFFICER CLAUSER BECAUSE OF
HIS UNION ACTIVITIES.
IN REACHING THESE CONCLUSIONS, I REJECT RESPONDENT'S VIEW OF THE
EVIDENCE-- THAT OFFICER CLAUSER CONDUCTED A "CAMPAIGN OF HARASSMENT"
AGAINST HIS SUPERVISORS (RBR 17). OFFICER CLAUSER WAS ACTIVELY PURSUING
STATUTORY RIGHTS DURING THE PERIOD IN ISSUE; AND THEY NECESSARILY
INVOLVED CASTING HIS SUPERVISOR IN AN UNFAVORABLE LIGHT. HE WAS,
THEREFORE, SENSITIVE TO ANY INCIDENT WHICH INVOLVED HIM AND HIS
SUPERVISORS AND WHICH APPEARED DISCRIMINATORY TO HIM. THIS IS
PARTICULARLY TRUE OF THE INCIDENT INVOLVING THE ORDER, TO HIS FIRST-LINE
SUPERVISOR, TO WRITE UP HIS APPRAISAL IN PENCIL, FOR REVIEW BY HIGHER
AUTHORITY. EVEN AT THE TIME OF THE HEARING, OFFICER CLAUSER DID NOT
UNDERSTAND THAT THIS WAS A NORMAL PROCEDURE, IN ENGINEERING SERVICES.
INDEED, THE ALLEGED "HARASSMENT," WHICH OFFICER CLAUSER HAS PUT
RESPONDENT THROUGH, COULD HAVE BEEN AVOIDED IF RESPONDENT'S AGENTS HAD
BEEN MORE SENSITIVE TO OFFICE CLAUSER'S PREDICTAMENT AND ATTEMPTED TO
EXPLAIN ITS ACTIONS, AS IT FINALLY EXPLAINED THEM DURING THE COURSE OF
THE HEARING. IT IS THIS FAILURE TO EXPLAIN WHICH THE GENERAL COUNSEL
STRESSES IN ITS BRIEF, AND WHICH FORMS A BASIS FOR THE ARGUMENT THAT
RESPONDENT'S "ENTIRE PATTERN OF CONDUCT" SHOULD BE VIEWED AS SHOWING AN
ANTI-UNION ANIMUS AND VIOLATIVE OF SECTION 7116(A)(1).
UNDER THE FACTS OF RECORD, AS FOUND ABOVE, HOWEVER, THE AGENCY'S
FAILURE TO EXPLAIN ACTIONS DOES NOT AMOUNT TO SUFFICIENT PROOF OF AN
ANTI-UNION ANIMUS.
THE INCIDENTS INVOLVED DID NOT REVEAL ANY DELIBERATE EFFORT ON THE
PART OF RESPONDENT TO SINGLE OUT OFFICER CLAUSER FOR DISCRIMINATORY
TREATMENT. ALL BUT ONE INVOLVED REACTIONS BY RESPONDENT TO EVENTS THAT
OCCURRED IN THE DAY-TO-DAY MANAGEMENT OF THE HOSPITAL'S AFFAIRS, AND
WHICH WERE HANDLED FOLLOWING NORMAL PROCEDURES. THE RESPONSE TO THE ONLY
UNUSUAL EVENT-- THE SETTLEMENT AGREEMENT-- CAN ONLY BE FAULTED ON THE
GROUND THAT RESPONDENT WAS NOT MORE DILIGENT IN PRESSING THE VA CENTRAL
OFFICE FOR AN ANSWER AS TO THE LEGALITY OF A $10 OR $15 CLAIM OF OFFICER
CLAUSER. AS TO THE MAJOR PART OF THE AGREEMENT-- GETTING RID OF THE
POLICE CHIEF -- RESPONDENT DID ACT PROMPTLY. ANY LACK OF DILIGENCE OVER
SEEKING A RESOLUTION OF THE $10 OR $15 CLAIM FOR BACKPAY APPEARS TO BE
MORE A MATTER OF NEGLECT, THAN HARASSMENT.
THE GENERAL COUNSEL ASKS THAT THE FORMAL SETTLEMENT APPROVED BY THE
AUTHORITY IN VETERANS ADMINISTRATION, AUDIE L. MURPHY MEMORIAL VETERANS
HOSPITAL, SAN ANTONIO, TEXAS, 7 FLRA NO. 86 (1983), BE VIEWED AS FURTHER
EVIDENCE OF RESPONDENT'S "ANIMUS" (GCBR 9). IN THAT CASE, THE SETTLEMENT
STIPULATION WAS REACHED ON AUGUST 24, 1981. THE ISSUES SETTLED INVOLVED
OFFICIAL TIME FOR STEWARDS, UNILATERAL CHANGES IN WORKING CONDITIONS,
AND FORMAL DISCUSSIONS WITH UNIT EMPLOYEES CONCERNING CHANGES IN WORKING
CONDITIONS. FROM ALL THAT IS REPORTED AT 7 FLRA NO. 86, RESPONDENT MAY
HAVE HAD LEGITIMATE ARGUMENTS IN REGARD TO THESE ISSUES, ALL OF WHICH
ARE OFTEN LITIGATED, AND SOMETIMES WON BY AGENCIES. NO UNION "ANIMUS"
CAN BE DIVINED FROM THE FACT OF THIS SETTLEMENT. THE CONSENT OF
RESPONDENT TO A CEASE-AND-DESIST ORDER, AS TO THESE ISSUES, CAN AS
READILY BE VIEWED AS EVIDENCE OF ITS WILLINGNESS TO WORK WITH THE UNION,
RATHER THAN AGAINST IT.
THE GENERAL COUNSEL CITES FOUR CASES IN SUPPORT OF ITS CONTENTIONS--
UNITED STATES ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS, 4
FLRA NO. 80 (1980); UNITED STATES MARINE CORPS, MARINE LOGISTICS BASE,
BARSTOW, CALIFORNIA, 5 FLRA NO. 97 (1981); DEPARTMENT OF THE TREASURY,
UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, 8 FLRA NO. 109
(1982); AND NLR0 V. HUNTSVILLE MFG. CO., 514 F.2D 723 (5TH CIR. 1975)
(GCBR 9, FNS. 3 AND 4). IN THE ARMY CASE, THE AGENCY DID NOT SELECT A
UNION PRESIDENT FOR TRANSFER TO ANOTHER JOB, BECAUSE IT DETERMINED THAT
HIS USE OF OFFICIAL TIME FOR UNION ACTIVITIES RENDERED HIM UNAVAILABLE
FOR FULL-TIME WORK ON THE JOB SOUGHT; AND THE EMPLOYEE'S SUPERVISOR
SUGGESTED TO HIM THAT HAD HE REDUCED HIS AMOUNT OF UNION TIME, HE COULD
PROBABLY HAVE GONE TO THE OTHER JOB. IN THE MARINE CORPS CASE, A
STEWARD'S ACTIVITIES ON BEHALF OF THE UNION TRIGGERED THE AGENCY'S
DECISION TO DISCHARGE HIM; A WRITTEN EVALUATION BY HIS SUPERVISOR OF
"REGULAR," AS TO PUNCTUALITY AND ATTENDANCE, WEAKENED THE AGENCY'S
DEFENSE THAT HE WAS DISCHARGED FOR ABUSE OF LEAVE; IT WAS ONLY AFTER
THE UNION ACTIVITIES BEGAN THAT LEAVE USAGE BECAME A PROBLEM; IT BECAME
KNOWN TO EMPLOYEES THAT MANAGEMENT FELT THAT THE STEWARD WAS USING AN
EXCESSIVE AMOUNT OF TIME ON UNION BUSINESS; AND MANAGEMENT RESTRICTED
HIM TO ONE HOUR TO HANDLE ONE GRIEVANCE. IN THE TREASURY CASE, A UNION
PRESIDENT WAS GIVEN AN UNWARRANTED COUNSELLING BY A SUPERVISOR BECAUSE
OF HIS UNION ACTIVITIES. IN THE NLRB CASE, IT WAS HELD THAT A "PATTERN
OF CONDUCT HOSTILE TO UNIONS" CAN SUPPORT A FINDING OF ANTI-UNION ANIMUS
(FN. 5, ID. AT 725); BUT THE COURT REFUSED TO ENFORCE THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD BECAUSE ITS FINDINGS WERE BASED ON MERE
SUSPICION OR SURMISE. EACH OF THESE CASES, EXCEPT FOR THE NLRB ONE,
TURNED ON MORE EGREGIOUS FACTS THAN CAN BE FOUND ON THE INSTANT RECORD.
AS IN THE NLRB CASE, THE GENERAL COUNSEL'S CASE REQUIRES FINDINGS
BASED ON SUSPICION OR SURMISE.
ULTIMATE FINDINGS AND RECOMMENDED ORDER
IT HAS NOT BEEN SHOWN, BY A PREPONDERANCE OF THE EVIDENCE, THAT
RESPONDENT HAS ENGAGED IN UNFAIR LABOR PRACTICES, AS ALLEGED IN THE
COMPLAINT.
ACCORDINGLY, IT IS HEREBY ORDERED THAT THE COMPLAINT SHOULD BE, AND
IT HEREBY IS, DISMISSED.
/1/ THE CHARGE IN CASE NO. 6-CA-533 WAS ORIGINALLY FILED ON MAY 5,
1980, AND AMENDED ON MAY 12, 1980. THE ORIGINAL COMPLAINT AND NOTICE OF
HEARING WAS ISSUED ON AUGUST 29, 1980. ON NOVEMBER 28, 1980, CASE NO.
6-CA-533 WAS CONSOLIDATED FOR HEARING WITH THREE OTHER CASES. ON
FEBRUARY 28, 1981, CASE NO. 6-CA-533 WAS CONSOLIDATED FOR HEARING WITH
21 OTHER CHARGES FILED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AGAINST RESPONDENT. ON MARCH 1, 1982, AN ORDER
WITHDRAWING THE THIRD AMENDED CONSOLIDATED COMPLAINT AND NOTICE OF
HEARING WAS ISSUED; AND AN AMENDED COMPLAINT AND NOTICE WAS ISSUED. OF
THE 22 CASES INVOLVED THEREIN, ONLY THE CASE IN 6-CA-533 WAS SET FOR
HEARING, THE REMAINING CASES HAVING BEEN RESOLVED THROUGH PARTY
SETTLEMENTS, INFORMAL SETTLEMENTS AND A FORMAL SETTLEMENT APPROVED BY
THE AUTHORITY.
THE COMPLAINT WAS AMENDED AT THE HEARING TO CORRECT TYPOGRAPHICAL
ERRORS. PARAGRAPH 9(A) WAS AMENDED TO CHANGE "VA FORM 3220" TO "VA FORM
3230." PARAGRAPH 9(B) WAS AMENDED TO REFLECT THE CORRECT DATE OF
DECEMBER 25, 1979.
/2/ SECTION 7116(A)(1) PROVIDES THAT "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. . . ."
ONE SUCH RIGHT IS FOUND IN SECTION 7102 OF THE STATUTE, WHICH
PROVIDES THAT:
EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT.
SECTION 7102 RIGHTS INCLUDE THE RIGHT "TO ACT FOR A LABOR
ORGANIZATION IN THE CAPACITY OF A REPRESENTATIVE . . . ."
/3/ "GC" REFERS TO THE EXHIBITS OF THE GENERAL COUNSEL. OTHER
ABBREVIATIONS TO BE USED HEREIN ARE AS FOLLOWS. "GCBR" REFERS TO THE
BRIEF OF THE GENERAL COUNSEL, AND "RBR" TO THAT OF RESPONDENT. "R"
REFERS TO THE EXHIBITS OF RESPONDENT. MULTIPAGE EXHIBITS ARE REFERENCED
BY EXHIBIT NUMBER AND THEN PAGE OR PARAGRAPH NUMBERS. "TR" REFERS TO THE
TRANSCRIPT.
DAVID E. DAVENPORT, ATTORNEY FOR RESPONDENT
SUSAN E. JELEN, ATTORNEY FOR THE GENERAL COUNSEL 770801 0000600
20 FLRA-ALJ; CASE NO. 53-CA-2751 DECEMBER 6, 1982
UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
WASHINGTON, D.C., RESPONDENT AND NATIONAL TREASURY EMPLOYEES UNION,
CHARGING PARTY
BEFORE: SALVATORE J. ARRIGO, 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.
UPON AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE NATIONAL TREASURY
EMPLOYEES UNION (HEREIN REFERRED TO AS THE UNION), ON AUGUST 11, 1981,
AND AMENDED ON DECEMBER 4, 1981, AGAINST THE UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, WASHINGTON, D.C. (HEREIN
REFERRING TO AS THE RESPONDENT OR IRS), THE GENERAL COUNSEL OF THE
AUTHORITY, BY THE ACTING REGIONAL DIRECTOR FOR REGION 5, ISSUED A
COMPLAINT AND NOTICE OF HEARING ON MARCH 12, 1982 ALLEGING THAT
RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY
CHANGING THE TERMS AND CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT
EMPLOYEES ". . . UNILATERALLY, WITHOUT RESPONDENT HAVING GIVEN ADEQUATE
NOTICE TO THE UNION . . . AND/OR OPPORTUNITY FOR THE UNION TO BARGAIN
CONCERNING THE SUBSTANCE OF THE CHANGE OR THE IMPACT AND IMPLEMENTATION
OF SAID CHANGES." THE ALLEGED CHANGE INVOLVES RESPONDENT'S POLICY FOR
PAYING TRAVEL EXPENSES TO EMPLOYEES WHO PARTICIPATE IN TRAINING CLASSES
CONDUCTED WITHIN COMMUTING DISTANCE OF THEIR OFFICIAL DUTY STATIONS.
A HEARING ON THE COMPLAINT WAS CONDUCTED ON MAY 4, 1982 IN CHICAGO,
ILLINOIS AT WHICH TIME ALL PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED BY ALL
PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER, /1/ MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
BACKGROUND AND EVENTS
AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE FOR VARIOUS EMPLOYEES LOCATED IN
RESPONDENT'S NATIONAL, REGIONAL AND DISTRICT OFFICES. RESPONDENT'S
MIDWEST REGION, WITH HEADQUARTERS LOCATED IN CHICAGO, ILLINOIS, IS
COMPRISED OF A SERVICE CENTER AND NINE DISTRICTS, INCLUDING DISTRICT
OFFICES IN DES MOINES, IOWA; ST. PAUL, MINNESOTA; MILWAUKEE,
WISCONSIN; AND ST. LOUIS MISSOURI.
AT SOME UNDISCLOSED TIME PRIOR TO MAY 1981, JACK SHANK, ASSISTANT
REGIONAL COMMISSIONER, RESOURCES MANAGEMENT, AT RESPONDENT'S MIDWEST
REGION, RECEIVED A NUMBER OF INQUIRES FROM VARIOUS DISTRICT OFFICES
WHICH REVEALED THAT THERE WAS SOME DEGREE OF "CONFUSION" CONCERNING
REIMBURSING EMPLOYEES FOR EXPENSES INCURRED WHEN TRAVELING TO TRAINING
CLASSES CONDUCTED WITHIN COMMUTING DISTANCE OF THEIR OFFICIAL DUTY
STATIONS. THE "CONFUSION" RELATED TO WHICH OF TWO IRS REGULATIONS
APPLIED TO SUCH TRAINING. THUS, IRS MANUAL REGULATION 1763 (IRM 1763
HEREIN), UNDER THE HEADING "TRAINING TRAVEL", PROVIDES, IN RELEVANT
PART:
"(1) AS A GENERAL RULE, EMPLOYEES IN A TRAVEL STATUS, PARTICIPATING
IN TRAINING PROGRAMS
UNDER THE GOVERNMENT EMPLOYEES TRAINING ACT, WILL BE ENTITLED TO
TRANSPORTATION AND PER DIEM
AS PROVIDED IN THE FEDERAL TRAVEL REGULATIONS AND APPLICABLE
ADMINISTRATIVE REGULATIONS. SUCH
TRAVEL WILL BE CONSIDERED AS "OFFICIAL TRAVEL" UNDER THE PROVISIONS
OF THE CURRENT
CONSOLIDATED TRAVEL AUTHORIZATION."
HOWEVER, IRS MANUAL REGULATION 0410.23 OF RESPONDENT'S TRAINING
HANDBOOK (HEREIN IRM 0410), IN EFFECT SINCE JANUARY 1979, UNDER THE
HEADING "TRAINING EXPENSES FOR LOCAL PARTICIPANTS," PROVIDES, IN
RELEVANT PARTY:
"(1) GENERALLY, TRAINEES WHOSE OFFICIAL DUTY STATION IS WITHIN
ORDINARY COMMUTING DISTANCE
OF THE TRAINING SITE WILL BE ALLOWED ONLY TRANSPORTATION EXPENSES
FROM THE OFFICIAL DUTY
STATION TO THE TRAINING SITE AND RETURN. THESE TRANSPORTATION
EXPENSES ARE LIMITED TO THE
COST OF COMMON CARRIER, UNLESS IT IS DETERMINED THAT THE USE OF
PRIVATELY-OWNED VEHICLE OR
TAXICAB IS MORE ADVANTAGEOUS TO THE GOVERNMENT. CHAPTER 200 OF IRM
1763, TRAVEL HANDBOOK
CONTAINS ALL NECESSARY TRAVEL GUIDELINES.
"(2) NO OTHER TRAVEL OR PER DIEM EXPENSES ARE THOSE ALLOWED IN IRM
1763 ARE ALLOWABLE FOR
'LOCAL TRAINEES' EXCEPT THOSE WHO ARE REQUIRED TO 'LIVE-IN' AT THE
TRAINING SITE
. . . " (SIC).
THE CONVERSATIONS SHANK HAD WITH THE VARIOUS DISTRICT OFFICES, ABOVE,
SUGGESTED, ACCORDING TO SHANK, THAT THERE WAS A "POTENTIAL" FOR THE LACK
OF UNIFORM PRACTICE IN THE DISTRICTS REGARDING REMUNERATION FOR TRAINING
TRAVEL. ACCORDINGLY, BY MEMORANDUM DATED MAY 4, 1981, SHANK ADVISED ALL
DISTRICT DIRECTORS IN THE MIDWEST REGION THAT HE HAD RECEIVED INQUIRIES
CONCERNING THIS MATTER AND NOTED THAT THE REGULATIONS CONTAINED IN IRM
0410 WERE "SOMEWHAT MORE RESTRICTIVE THAN PROVISIONS IN THE TRAVEL
HANDBOOK FOR SIMILAR TYPE EXPENSES." SHANK THEN QUOTED THE RELEVANT
PROVISIONS OF IRM 0410.35, ABOVE, AND STATED:
"THESE PROVISIONS TAKE PRECEDENCE OVER THE TRAVEL REGULATIONS
CONTAINED IN IRM 1763. YOUR
OFFICES SHOULD COMPLY WITH THE PROVISIONS OF IRM 0410 WHEN SCHEDULING
EMPLOYEES FOR TRAINING
AT LOCAL SITES AND IN APPROVING EXPENSES FOR LOCAL PARTICIPANTS AT
TRAINING CLASSES WITHIN
THEIR NORMAL COMMUTING DISTANCE. IF COMPLYING WITH THIS PROVISION
REPRESENTS A CHANGE IN
POLICY OR PRACTICE, THE LOCAL CHAPTER OF NTEU SHOULD BE NOTIFIED."
AFTER SHANK'S MEMORANDUM WAS RECEIVED BY THE DES MOINES DISTRICT
OFFICE, TED REIS, LABOR RELATIONS SPECIALIST AND ANOTHER MANAGEMENT
REPRESENTATIVE AT THAT LOCATION, MET WITH FRANK CLEMENTS, THE LOCAL NTEU
CHAPTER PRESIDENT, ON MAY 19, 1981. REIS INFORMED CLEMENTS THAT, UPON
DIRECTION FROM THE REGIONAL OFFICE, THE MANNER OF REIMBURSING EMPLOYEES
FOR TRAVEL RELATED TO TRAINING IN THE COMMUTING AREA WOULD BE HENCEFORTH
CHARGED TO COMPLY WITH IRM 0410. CLEMENTS WAS PROVIDED A COPY OF THE IRM
AND WAS ADVISED THE NEW POLICY WOULD APPLY TO THE TRAINING CLASSES
SCHEDULED FOR AROUND JUNE 1. CLEMENTS SAID HE WOULD "CONSIDER" THE
MATTER.
BY LETTER DATED MAY 26, 1981 CLEMENTS INFORMED THE DES MOINES
DISTRICT DIRECTOR THAT THE UNION WAS REQUESTING NEGOTIATIONS ON THE
CHANGE IN THE METHOD OF REIMBURSING EMPLOYEES FOR TRAINING TRAVEL, AND
PROPOSED THAT REIMBURSEMENT REMAIN IN THE "STATUS QUO." BY LETTER DATED
JUNE 12, 1981 THE DISTRICT DIRECTOR REFUSED TO NEGOTIATE ON THE
PROPOSAL, STATING, INTER ALIA:
"AFTER REVIEWING YOUR REQUEST AND PROPOSAL, I HAVE CONCLUDED THAT IT
IS NOT NEGOTIABLE
SINCE IT DEALS WITH THE SUBSTANCE OF THE MATTER, WHICH IS GOVERNED BY
AGENCY (IRS) REGULATIONS
WHICH WERE IN PLACE AT THE TIME THE CONTRACT (NORD) WAS IMPLEMENTED
IN 1/26/81, AND ARE NOT
INCONSISTENT WITH THE AGREEMENT. THEREFORE, I FIND NO OBLIGATION ON
MANAGEMENT TO NEGOTIATE
ON YOUR PROPOSAL." /2/
THE EVIDENCE REVEALS THAT APPROXIMATELY 400 BARGAINING UNIT EMPLOYEES
ARE LOCATED IN THE DES MOINES DISTRICT AND THE LONGSTANDING, CONSISTENT
PRACTICE IN THAT DISTRICT PRIOR TO MAY 26, 1981 /3/ WAS TO REIMBURSE
EMPLOYEES FOR TRAVEL BETWEEN THE EMPLOYEES' RESIDENCES AND THE NON POST
OF DUTY TRAINING SITE WHEN TRAINING OCCURRED IN THE EMPLOYEES' COMMUTING
AREA. /4/ MOST DES MOINES DISTRICT EMPLOYEES WORK IN THE "FILED, AWAY
FROM THE OFFICIAL POST OF DUTY (THE OFFICE), AND RECEIVE REIMBURSEMENT
FOR THEIR NORMAL BUSINESS TRAVEL FROM THEIR RESIDENCES TO THEIR NON POST
OF DUTY WORKSITES. THUS, IF THE TRAINING SITE FOR THESE EMPLOYEES IS
EQUATED TO THE WORKSITE, THEN THESE EMPLOYEES WOULD RECEIVE
REIMBURSEMENT FOR TRAVEL FROM THEIR RESIDENCES TO THE TRAINING SITE, AS
WAS THE CASE PRIOR TO MAY 26. HOWEVER, AFTER MAY 26 REIMBURSEMENT WAS
PROVIDED ONLY FOR TRAVEL BETWEEN THE OFFICIAL POST OF DUTY TO THE
TRAINING SITE, WHICH MIGHT WELL BE IN CLOSE PROXIMITY TO THE OFFICIAL
POST OF DUTY, THEREBY REDUCING THE AMOUNT OF REIMBURSEMENT AN EMPLOYEE
MIGHT OTHERWISE RECEIVE. REIS TESTIFIED THAT WHILE HE HAD NO DISCRETION
BUT TO IMPLEMENT THE DIRECTIVE CONTAINED IN THE SHANK MEMORANDUM, HE
RETAINED DISCRETION AS TO WHEN AND HOW THE DIRECTIVE WOULD BE
IMPLEMENTED. /5/
A SIMILAR SITUATION PREVAILED IN RESPONDENT'S ST. PAUL DISTRICT WHERE
THE UNION REPRESENTED APPROXIMATELY 700 BARGAINING UNIT EMPLOYEES. AFTER
SHANK'S MEMORANDUM WAS RECEIVED, IN LATE MAY 1981 MANAGEMENT
REPRESENTATIVE DOUGLAS HARTSHORN MET WITH THE LOCAL UNION CHAPTER
PRESIDENT, FLOYD JOHNSON, GAVE HIM A COPY OF SHANK'S MEMORANDUM AND
NOTIFIED HIM THAT THE MEMORANDUM NECESSITATED A CHANGE IN THE MANNER OF
COMPUTING REIMBURSEMENT FOR TRAINING TRAVEL AND INDICATED THAT THE
CHANGE WOULD BE IMPLEMENTED "SOMETIME IN THE FUTURE." IN THAT DISTRICT
THERE ALSO EXISTED A LONGSTANDING, CONSISTENT PRACTICE OF REIMBURSING
EMPLOYEES FOR TRAVEL BETWEEN THE EMPLOYEES' RESIDENCES AND THE NON POST
OF THE DUTY TRAINING SITE FOR TRAINING IN THE EMPLOYEES' COMMUTING AREA.
/6/ JOHNSON ASKED FOR A DELAY IN IMPLEMENTATION WHILE HE CONTACTED THE
NATIONAL UNION AND HARTSHORN AGREED. THEREAFTER, BY MEMORANDUM TO THE
DISTRICT DIRECTOR DATED JUNE 11, 1981, JOHNSON MADE A DEMAND ". . . TO
NEGOTIATE THE SUBSTANCE OF THE DECISION (INVOLVING REIMBURSEMENT FOR
TRAINING TRAVEL) AS WELL AS THE IMPACT AND IMPLEMENTATION PROCEDURES."
JOHNSON ALSO REQUESTED THAT IMPLEMENTATION BE WITHHELD ". . . UNTIL
AGREEMENT, INCLUDING IMPASSE IS REACHED." THE ACTING DISTRICT DIRECTOR
RESPONDED BY STATING THAT SINCE THE UNION MADE NO SPECIFIC PROPOSAL, NO
DETERMINATION AS TO NEGOTIABILITY COULD BE MADE AT THAT TIME AND
SUGGESTED THAT A SPECIFIC PROPOSAL BE SUBMITTED. ON JULY 1, JOHNSON
SUBMITTED A BARGAINING PROPOSAL ON THE MATTER WHICH WAS ". . . THAT THE
STATUS QUO REMAIN." BY MEMORANDUM TO THE UNION DATED JULY 21 THE
DISTRICT DIRECTOR INFORMED THE UNION THAT IT WAS REFUSING TO NEGOTIATE
ON THE MATTER FOR REASONS VIRTUALLY IDENTICAL WITH THE REASONS SET FORTH
BY THE DES MOINES DISTRICT DIRECTOR IN ITS LETTER TO THE LOCAL CHAPTER
OF JUNE 12, 1981, SUPRA. THEREAFTER, THE DISTRICT DIRECTOR NOTIFIED ALL
MANAGERS BY MEMORANDUM OF OCTOBER 23, 1981 THAT ". . . TRAINEES WOULD BE
LIMITED TO TRANSPORTATION EXPENSES FROM THEIR OFFICIAL DUTY STATION TO
THE TRAINING SITE AND RETURN, AND NOT FROM THEIR PLACE OF RESIDENCE
UNLESS THE EXPENSE IS LESS."
IN LATE JUNE 1981, RICHARD TOMASHEK, THE UNION'S CHAPTER 1 (MILWAUKEE
DISTRICT) FIRST VICE-PRESIDENT AND CHIEF STEWARD WAS NOTIFIED BY THE
MILWAUKEE CHIEF OF PERSONNEL THAT THE MANNER OF COMPUTING REIMBURSEMENT
FOR TRAVEL TRAINING WOULD BE CHANGED WHEREBY EMPLOYEES WOULD RECEIVE THE
LESSER OF THE MILEAGE FROM THE EMPLOYEES' POST OF DUTY TO THE TRAINING
SITE OR RESIDENCE TO THE TRAINING SITE. THE CHANGE WAS TO BE
IMPLEMENTED IN ABOUT THREE WEEKS. /7/ PRIOR THERETO, THE LONGSTANDING
AND CONTINUOUS PRACTICE IN THIS MATTER HAD BEEN THE SAME AS THAT SET
FORTH FOR THE DES MOINES AND ST. PAUL DISTRICTS, SUPRA. /8/ IN A JULY 9,
1981 LETTER TO THE MILWAUKEE DISTRICT DIRECTOR, TOMASHEK DEMANDED
NEGOTIATIONS ON THE CHANGE AND PROPOSED ". . . THAT THE REIMBURSEMENT
POLICY AND PRACTICE REMAIN THE SAME AS IT HAS BEEN TO DATE." THE ACTING
DISTRICT DIRECTOR ON JULY 27, 1981 REFUSED TO NEGOTIATE ON THE MATTER
FOR REASONS VIRTUALLY IDENTICAL TO THOSE SET FORTH BY THE DES MOINES AND
ST. PAUL DIRECTORS, SUPRA. /9/
IN THE ST. LOUIS DISTRICT, WHERE THE UNION REPRESENTS APPROXIMATELY
900 EMPLOYEES, THE SHANK MEMORANDUM ALSO PROVOKED A MEETING BETWEEN
MANAGEMENT AND THE LOCAL UNION REPRESENTATIVE. ON MAY 19, 1981, ROGER
GROTH, CHIEF OF PERSONNEL FOR THE ST. LOUIS DISTRICT MET WITH THE LOCAL
UNION CHAPTER PRESIDENT, JOSEPH L. BOYD, AND DISCUSSED THE SHANK
MEMORANDUM. BOYD AGREED WITH GROTH'S INTERPRETATION THAT COMPLIANCE WITH
THE MEMORANDUM WOULD REQUIRE LIMITING REIMBURSEMENT FOR TRAVEL TO THE
LESSER OF THE DISTANCE FROM THE EMPLOYEE'S RESIDENCE OR POST OF DUTY TO
THE TRAINING SITE. GROTH INDICATED THAT RESPONDENT WOULD BE ADVISING ITS
MANAGERS TO COMPLY WITH THE TERMS OF THE MEMORANDUM. AS WITH THE OTHER
DISTRICTS INVOLVED HEREIN, THE LONGSTANDING, CONSISTENT PRACTICE UP TO
THAT TIME IN THE ST. LOUIS DISTRICT HAD BEEN TO REIMBURSE EMPLOYEES FOR
TRAVEL BETWEEN RESIDENCES AND THE TRAINING SITE. /10/ HOWEVER, BOYD MADE
NO REQUEST TO DELAY IMPLEMENTATION OR GIVE ANY INDICATION OF A DESIRE TO
NEGOTIATE ON THE SUBJECT SINCE HE WAS OF THE OPINION THAT HE HAD NO
AUTHORITY TO NEGOTIATE REGARDING A MATTER INVOLVING A REGIONAL ISSUANCE.
THE CHANGE IN THE METHOD OF COMPUTING REIMBURSEMENT WAS THEREAFTER
ANNOUNCED AT THE BEGINNING OF THE NEXT TRAINING CLASSES WHICH BEGAN ON
MAY 21, 1981.
PROCEDURAL MATTERS
AFTER RECEIPT OF THE PARTIES' BRIEFS, COUNSEL FOR RESPONDENT FILED A
MOTION TO STRIKE CERTAIN ARGUMENTS IT PERCEIVED COUNSEL FOR THE GENERAL
COUNSEL AND COUNSEL FOR THE CHARGING PARTY HAD MADE IN THEIR BRIEFS. ONE
SUCH ARGUMENT DEALT WITH WHETHER NOTICE TO THE UNION OF THE ALLEGED
CHANGE CONCERNED HEREIN WAS REQUIRED TO HAVE BEEN GIVEN AT A LEVEL ABOVE
THE DISTRICT OFFICE LEVEL TO CONSTITUTE PROPER NOTICE. COUNSEL FOR THE
GENERAL COUNSEL INDICATED, BOTH AT THE HEARING AND IN HER RESPONSE IN
OPPOSITION TO RESPONDENT'S MOTION, THAT THE GENERAL COUNSEL DID NOT TAKE
SUCH A POSITION. ACCORDINGLY, ALTHOUGH SOME ARGUMENT CONTAINED IN
COUNSEL FOR THE GENERAL COUNSEL'S BRIEF CAN BE CONSTRUED TO CHALLENGE
THE APPROPRIATENESS OF NOTICE GIVEN AT THE DISTRICT LEVEL, SINCE SUCH
ARGUMENT IS NOT ACKNOWLEDGED BY COUNSEL FOR THE GENERAL COUNSEL TO BE AT
ISSUE HEREIN, THE MOTION TO STRIKE REGARDING THE GENERAL COUNSEL'S
POSITION IS GRANTED ONLY TO THE EXTENT THAT ADEQUACY OF OF NOTICE AT AN
APPROPRIATE LEVEL IS AN ISSUE IN THE CASE HEREIN. THUS, IT IS PRESUMED
FOR THE PURPOSE OF THIS CASE THAT NOTICE GIVEN TO THE DISTRICT UNION WAS
PROPER UNDER THE STATUTE.
HOWEVER, COUNSEL FOR THE CHARGING PARTY CONTENDED AT THE HEARING, IN
ITS BRIEF, AND IN ITS MOTION IN OPPOSITION TO RESPONDENT'S MOTION TO
STRIKE, THAT RESPONDENT WAS REQUIRED TO GIVE NOTICE TO THE UNION AT THE
NATIONAL LEVEL. SINCE SUCH WAS NOT ALLEGED BY THE GENERAL COUNSEL, I
RULED AT THE HEARING THAT I WAS BOUND BY WHAT THE GENERAL COUNSEL WAS
ALLEGING AND THE CHARGING PARTY'S CONTENTION WAS NOT LITIGATED IN THESE
PROCEEDINGS. /11/ ACCORDINGLY, RESPONDENT'S MOTION TO STRIKE THIS
CONTENTION RAISED IN THE CHARGING PARTY'S BRIEF IS GRANTED.
RESPONDENT ALSO MOVES TO HAVE STRICKEN FROM OPPOSITION BRIEFS
ARGUMENTS BASED UPON THE CONSTRUCTION AND INTERPRETATION OF THE PARTIES'
NEGOTIATED AGREEMENT. SINCE ARGUMENTS IN THIS REGARD ARE INTRINSICALLY
RELATED TO THE QUESTION OF AT WHAT ADMINISTRATIVE LEVEL PROPER NOTICE
SHOULD HAVE BEEN GIVEN OF THE ALLEGED CHANGES LITIGATED HEREIN, IT WOULD
APPEAR THAT RESPONDENT'S MOTION IS WELL TAKEN. THUS, AS STATED ABOVE,
THIS CASE WAS LITIGATED BEFORE ME ON THE THEORY PROFFERED BY COUNSEL FOR
THE GENERAL COUNSEL THAT NOTICE AT THE DISTRICT LEVEL WOULD HAVE BEEN
PROPER IF GOOD FAITH IN ALL OTHER RESPECTS IN THE BARGAINING PROCESS HAD
PREVAILED. /12/ MOREOVER, THE COMPLAINT DOES NOT ALLEGE A UNILATERAL
CHANGE IN A CONTRACTUAL TERM. THEREFORE, I PERCEIVE NO QUESTION AT
ISSUE PROPERLY BEFORE ME CONCERNING THE CONSTRUCTION AND INTERPRETATION
OF THE BARGAINING AGREEMENT AND ACCORDINGLY, RESPONDENT'S MOTION TO
STRIKE IN THIS REGARD IS GRANTED.
FINALLY, RESPONDENT MOVES TO STRIKE ARGUMENTS OF THE GENERAL COUNSEL
AND THE CHARGING PARTY WHICH URGE THAT RESPONDENT, BY ITS ACTIONS,
REFUSED TO NEGOTIATE IN GOOD FAITH WITH THE UNION. RESPONDENT CONTENDS
THAT THE SOLE ALLEGATION OF THE COMPLAINT IS THAT RESPONDENT FAILED TO
PROVIDE THE UNION ADEQUATE NOTICE AND AN OPPORTUNITY TO BARGAIN OVER THE
ALLEGED CHANGE IN A CONDITION OF EMPLOYMENT AND ARGUMENTS RELATING TO A
REFUSAL TO NEGOTIATE IN GOOD FAITH IMPROPERLY BROADEN THE SCOPE OF THE
COMPLAINT. I REJECT THIS CONTENTION.
RESPONDENT READS THAT ALLEGATION OF THE COMPLAINT FAR TOO NARROWLY.
THE COMPLAINT ALLEGES THAT THE ISSUANCE OF THE SHANK MEMORANDUM ON MAY
4, 1981 (PARAGRAPH VA)) AND ITS IMPLEMENTATION IN THE DES MOINES, ST.
PAUL, MILWAUKEE, AND ST. LOUIS DISTRICTS (PARAGRAPH VB)):
"VI. . . . CONSTITUTED A CHANGE IN THE TERMS AND CONDITIONS OF
EMPLOYMENT OF EMPLOYEES IN
THE BARGAINING UNIT AND WERE MADE UNILATERALLY, WITHOUT RESPONDENT
HAVING GIVEN ADEQUATE
NOTICE TO THE UNION CONCERNING SAID CHANGES AND/OR OPPORTUNITY FOR
THE UNION TO BARGAIN
CONCERNING THE SUBSTANCE OF THE CHANGE OR THE IMPACT AND
IMPLEMENTATION OF SAID CHANGES.
THE COMPLAINT FURTHER ALLEGES IN PARAGRAPH VII:
"BY THE ACTS AND CONDUCT DESCRIBED ABOVE IN PARAGRAPHS VA) AND VB),
AND FOR THE REASON
ALLEGED IN PARAGRAPH VI, AND BY EACH OF SAID ACTS, RESPONDENT HAS
ENGAGED IN, AND IS ENGAGING
IN, UNFAIR LABOR PRACTICES IN VIOLATION IN 5 USC 7116(A)(1) AND (5).
SECTION 7116(A)(5) OF THE STATUTE DECLARES IT TO BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY "TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH
WITH A LABOR ORGANIZATION AS REQUIRED BY (THE STATUTE) . . . " ONE
POSSIBLE CONSTRUCTION OF THE COMPLAINT IS THAT A CONDITION OF EMPLOYMENT
WAS ALLEGEDLY CHANGED WITHOUT PROVIDING THE UNION WITH AN OPPORTUNITY TO
BARGAIN. THAT OPPORTUNITY, OF COURSE, MUST NECESSARILY BE PROVIDED IN
"GOOD FAITH" OR THE OPPORTUNITY TO BARGAIN WILL NOT FULFILL THE
REQUIREMENTS OF THE STATUTE. THEREFORE, THE COMPLAINT INHERENTLY
CONNOTES AN ALLEGATION THAT THE TOTALITY OF RESPONDENT'S CONDUCT
CONSTITUTED A FAILURE OR REFUSAL TO BARGAIN IN GOOD FAITH. MOREOVER,
COUNSEL FOR THE GENERAL COUNSEL'S OPENING STATEMENT AT THE HEARING MADE
IT ABUNDANTLY CLEAR THAT THE COMPLAINT ENCOMPASSED THE ALLEGATION OF A
FAILURE TO BARGAIN IN GOOD FAITH. THUS, COUNSEL FOR THE GENERAL COUNSEL
STATED, IN PART:
"WHEN THE UNION'S THREE REPRESENTATIVES REQUESTED TO NEGOTIATE THE
SUBSTANCES (SIC) IMPACT
AND IMPLEMENTATION OF THIS CHANGE, THEY MET WITH NO SUCCESS.
RESPONDENT . . . REPLIED THAT
THE MATTER WAS NOT NEGOTIABLE, AND THAT THERE WAS NO OBLIGATIONS
(SIC) TO BARGAIN.
"COUNSEL FOR THE GENERAL COUNSEL CONTENDS THAT THIS CHANGE
REPRESENTED AN ALTERATION IN
WHAT . . . BECAME A PRACTICE WITHIN EACH OF THE FOUR DISTRICTS. THIS
PRACTICE HAD EXISTED FOR
A SUBSTANTIAL PERIOD OF TIME; WAS KNOWN TO RESPONDENT AND ITS AGENTS
AND HAD BEEN KNOWINGLY
ACQUIESCED, BY THEM (SIC).
"COUNSEL FOR THE GENERAL COUNSEL FURTHER CONTENDS THAT THERE WAS NO
ADEQUATE NOTICE GIVEN
TO THE UNION OR AN OPPORTUNITY TO BARGAIN. IN EACH OF THE FOUR CITES
THE INFORMATION
TRANSMITTED TO THE UNION WAS PRESENTED AS BASICALLY AN ACCOMPLISHED
FACT AND . . . IMPLEMENTED
AS OF THAT DAY. . . .
"THE LACK OF AN OPPORTUNITY TO BARGAIN IS SELF-EVIDENT . . . GIVEN
THAT RESPONDENT'S AGENTS
SIMPLY DECLARED THE MATTER NON-NEGOTIABLE.
"GIVEN ALL THE ABOVE, COUNSEL FOR THE GENERAL COUNSEL CONTENDS THAT
(A) FINDING OF
VIOLATIONS (OF) 5 USC 7116(A)(1) AND (5) IS CLEARLY WARRANTED." /13/
ACCORDINGLY RESPONDENT'S MOTION TO STRIKE ARGUMENTS RELATED TO A
FAILURE TO BARGAIN IN GOOD FAITH IS DENIED.
DISCUSSION
THE CREDITED EVIDENCE ESTABLISHES THAT IN THE FOUR DISTRICTS
CONCERNED HEREIN THE CONSISTENT AND LONGSTANDING PRACTICE OR POLICY,
PRIOR TO THE ISSUANCE OF THE SHANK MEMORANDUM, WAS TO REIMBURSE
EMPLOYEES FOR EXPENSES INCURRED FOR TRAVEL BETWEEN AN EMPLOYEE'S
RESIDENCE AND THE LOCAL TRAINING SITE. THE UNCONTRADICTED TESTIMONY OF
THE ONLY EMPLOYEE WITNESSES WHO TESTIFIED DIRECTLY TO THIS POINT BASED
UPON THEIR PERSONAL OBSERVATIONS SUPPORT THIS FINDING. FURTHER, THE
LANGUAGE OF SHANK'S MEMORANDUM THAT "(IF COMPLYING WITH THIS PROVISION
REPRESENTS A CHANGE IN POLICY . . ." STRONGLY SUGGESTS THAT SHANK WAS
AWARE THAT IRM 0410 WAS NOT BEING UNIFORMLY FOLLOWED IN THE REGION. THE
TESTIMONY OF THE FOUR UNION REPRESENTATIVES WHO HAD CONVERSATIONS WITH
RESPONDENT'S REPRESENTATIVES IN THE FOUR DISTRICTS REVEALS THAT THE
DISTRICT MANAGEMENT REPRESENTATIVES WERE PROVIDING NOTICE TO UNION
OFFICERS PRECISELY BECAUSE THE SHANK MEMORANDUM WOULD RESULT IN A
"CHANGE." IN ADDITION, IT IS REASONABLE TO CONCLUDE THAT DISTRICT
DIRECTORS WERE FULLY AWARE OF THE PREVAILING POLICY IN THEIR DISTRICTS
AS TO THE BASIS FOR REIMBURSING EMPLOYEES FOR TRAINING TRAVEL EXPENSES
SUBMITTED AND APPROVED FOR PAYMENT ON OFFICIAL TRAVEL VOUCHERS.
ACCORDINGLY, I CONCLUDE THAT THE CONDUCT OF RESPONDENT'S
REPRESENTATIVES AT THE FOUR DISTRICTS CONCERNED HEREIN IN THEIR EFFORT
TO COMPLY WITH THE SHANK MEMORANDUM OF MAY 4, 1981 CONSTITUTED A CHANGE
IN RESPONDENT'S POLICY ON TRAINING TRAVEL EXPENSES. THE EVIDENCE
INDICATES THAT RESPONDENT'S REPRESENTATIVES CONSIDERED THEMSELVES BOUND
BY THE SHANK MEMORANDUM IN THAT RESPONDENT'S POLICY CONCERNING WHICH
PROVISIONS OF THE INTERNAL REVENUE SERVICE MANUAL WOULD BE APPLIED IN
THESE SITUATIONS HAD BEEN DECLARED BY THE MEMORANDUM AND THE FOUR
DISTRICT OFFICES INTENDED TO COMPLY WITH THE SUBSTANCE OF THAT POLICY.
INDEED, THREE OF THE DISTRICTS THAT RECEIVED NEGOTIATION PROPOSALS FROM
THE UNION ALL RESPONDED THAT THE "SUBSTANCE" OF THE DECISION WAS NOT
NEGOTIABLE. WHILE THE VARIOUS DISTRICTS MAY HAVE DIFFERED SOMEWHAT IN
THEIR PERCEPTIONS AS TO THE AREA REMAINING OPEN FOR NEGOTIATION AFTER
RECEIPT OF THE MEMORANDUM, SUCH AS HOW AND WHEN THE NEW POLICY WOULD BE
PUT INTO EFFECT-- QUESTIONS CONCERNING IMPACT AND IMPLEMENTATION-- THE
POLICY WAS CHANGED IN ALL FOUR DISTRICTS AND THE CHANGE WAS CONVEYED TO
THE COLLECTIVE BARGAINING REPRESENTATIVES WITHOUT PROVIDING THE UNION
WITH OPPORTUNITY TO NEGOTIATE ON THE MATTER PRIOR THERETO. /14/ I
CONCLUDE SUCH CONDUCT VIOLATED SECTION 7116(A)(1) AND (5) OF THE
STATUTE. /15/
I REJECT RESPONDENT'S CONTENTION THAT SHANK'S MAY 4, 1981 MEMORANDUM
CONSTITUTED A REAFFIRMATION, CLARIFICATION, OR ENFORCEMENT OF AN
EXISTING POLICY. RESPONDENT, IN ITS BRIEF, ACKNOWLEDGES THAT IRM 1763
HAS BEEN IN EFFECT SINCE 1973 AND IRM 0410 HAS BEEN IN EFFECT SINCE
1979. SHANK TESTIFIED THAT THE POLICY IN THE MIDWEST REGION WAS TO
FOLLOW IRM 0410. HOWEVER, THE EVIDENCE REVEALS THAT IN THE DES MOINES,
ST. PAUL, MILWAUKEE, AND ST. LOUIS DISTRICTS THE CONSISTENT POLICY PRIOR
TO THE SHANK MEMORANDUM WAS TO REIMBURSE FOR TRAINING TRAVEL FROM AN
EMPLOYEE'S RESIDENCE. NO SPECIFIC EVIDENCE WAS OFFERED AS TO THE POLICY
IN THE OTHER FIVE DISTRICTS IN THE MIDWEST REGION. THUS, FOUR OF NINE
DISTRICT OFFICES IN THE MIDWEST REGION CLEARLY FOLLOWED ONE POLICY AND
THE RECORD CONTAINS NO PROBATIVE EVIDENCE OF WHAT THE POLICY WAS IN THE
OTHER DISTRICTS, OTHER THAN SHANK'S CONCLUSIONARY STATEMENT. NOR IS
THERE ANY SUGGESTION THAT, PRIOR TO MAY 4, 1981, RESPONDENT SOUGHT TO
ADOPT OR ENFORCE A UNIFORM POLICY OF FOLLOWING IRM 0410 BY ISSUANCE OF A
MEMORANDUM OR OTHERWISE. IN THESE CIRCUMSTANCES I CONCLUDE THAT
RESPONDENT'S ARGUMENTS THAT SHANK'S MEMORANDUM CONSTITUTED A
REAFFIRMATION OR ENFORCEMENT OF A EXISTING POLICY IS WITHOUT MERIT.
I ALSO REJECT RESPONDENT'S CONTENTION THAT THE SUBSTANCE OF THE
DECISION TO REQUIRE DISTRICT OFFICE COMPLIANCE WITH IRM 0410 INVOLVED A
MANAGEMENT RESERVED RIGHT UNDER SECTION 7106(A)(1) OF THE STATUTE TO
DETERMINE THE BUDGET OF THE AGENCY AND WAS THEREFORE NONNEGOTIABLE.
/16/ IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, MEAT GRADERS
COUNCIL, AFL-CIO AND DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND QUALITY
SERVICE, MEAT GRADING BRANCH, WASHINGTON, D.C., 8 FLRA 118 (1982) AT
131-133, THE AUTHORITY HAD OCCASION TO CONSIDER THE NEGOTIABILITY, UNDER
SECTION 7117(A)(1) OF THE STATUTE, OF A PROPOSAL INVOLVING "PORTAL TO
PORTAL" REIMBURSEMENT. /17/ THE AUTHORITY, RELYING ON A DECISION OF THE
COMPTROLLER GENERAL WHICH RECOGNIZED THAT THE AGENCY INVOLVED HAD ". . .
DISCRETION UNDER APPLICABLE LAW AS TO THE PAYMENT OF MILEAGE FROM
RESIDENCE TO DUTY STATION AND RETURN . . . " UNDER THE CIRCUMSTANCES OF
THAT CASE, /18/ FURTHER HELD:
". . . THERE IS NOTHING IN THE RECORD OF THIS CASE TO SUGGEST THAT
THE PROPOSAL IS INTENDED
TO BE IMPLEMENTED IN A MANNER WHICH IS INCONSISTENT WITH LAW AND
REGULATION, I.E., TO
AUTHORIZE PAYMENT OF MILEAGE TO COVER TRAVEL FROM EMPLOYEES'
RESIDENCES TO THEIR OFFICIAL
HEADQUARTERS. THEREFORE, SINCE THE AGENCY HAS DISCRETION CONCERNING
SUCH MILEAGE PAYMENTS,
AND THE AGENCY HAS NOT ADVERTED TO NOR DOES RESEARCH REVEAL ANY LAW
OR GOVERNMENT-WIDE
REGULATION WHICH WOULD PRECLUDE THE EXERCISE OF SUCH DISCRETION
THROUGH NEGOTIATION OF THE
UNION'S PROPOSAL, THE PROPOSAL IS CONSISTENT WITH LAW AND
GOVERNMENT-WIDE REGULATION AND, IN
THIS REGARD, IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1)
OF THE STATUTE."
WHILE DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND QUALITY SERVICE,
SUPRA, WAS CONCERNED WITH THE DUTY TO BARGAIN DEALING WITH TRAVEL
REIMBURSEMENT UNDER SECTION 7117 OF THE STATUTE AND NOT 7106(A)(1) AS
ALLEGED HEREIN, THE COMPTROLLER GENERAL AND THE AUTHORITY GAVE GREAT
DEFERENCE TO AGENCY "DISCRETION" IN REACHING THEIR CONCLUSIONS. CLEARLY
IN THE CASE HEREIN RESPONDENT, BASED UPON ITS INTERPRETATION, HAD
DISCRETION AS TO WHETHER IT WOULD CONTINUE TO APPLY IRM 1763 OR REQUIRE
ADHERENCE TO IRM 0410 REGARDING TRAVEL FOR TRAINING FOR THE PARTICULAR
EMPLOYEES WHOSE TRAVEL WAS AT ISSUE. /19/ TO THE EXTENT AN AGENCY HAS
SUCH DISCRETION, IT HAS THE OBLIGATION TO BARGAIN ON THE SUBJECT. /20/
ACCORDINGLY, IN ALL THE CIRCUMSTANCES I CONCLUDE THAT THE SUBSTANCE OF
THE DECISION AS TO WHICH MANUAL PROVISION WOULD APPLY TO THE TRAVEL
CONCERNED HEREIN WAS A NEGOTIABLE MATTER UNDER THE STATUTE AND
RESPONDENT WAS NOT FREE TO IMPOSE A CHANGE WITHOUT PROVIDING THE UNION
WITH ADEQUATE NOTICE AND AN OPPORTUNITY TO NEGOTIATE BEFORE ANNOUNCING
THE CHANGE.
LASTLY, RESPONDENT CONTENDS THAT ANY CHANGE INVOLVED HEREIN DID NOT
MATERIALLY AFFECT AND HAVE A SUBSTANTIAL ADVERSE IMPACT ON PERSONNEL
POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS. I DISAGREE.
CLEARLY, BY THE VERY NATURE OF THE CHANGE HEREIN SOME EMPLOYEES
REIMBURSED UNDER IRM 0410 WILL NOT BE ENTITLED FOR REMUNERATION AS THEY
WOULD IF CONTINUED TO BE REIMBURSED UNDER IRM 1763. THAT IS SELF EVIDENT
AND, IN ANY EVENT, THERE IS SUFFICIENT SUPPORT IN THE RECORD FOR SUCH A
FINDING. /21/ WHEN THIS FACT IS CONSIDERED IN THE CONTEXT OF THE LARGE
NUMBERS OF EMPLOYEES IN THE FOUR DISTRICTS WHO POTENTIALLY COULD BE
AFFECTED BY THE CHANGE DURING WHAT IS APPARENTLY A CONTINUING PROGRAM
FOR TRAINING OF UNIT EMPLOYEES, THE CIRCUMSTANCES LEAD TO A CONCLUSION
THAT THE ADVERSE IMPACT OF RESPONDENT'S UNILATERAL CONDUCT IS
SUFFICIENTLY SUBSTANTIAL TO SATISFY THE AUTHORITY'S REQUIREMENTS. /22/
ACCORDINGLY, IN VIEW OF THE ENTIRE FOREGOING, I CONCLUDE THAT
RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY
UNILATERALLY CHANGING TERMS AND CONDITIONS OF EMPLOYMENT THEREBY FAILING
TO FULFILL ITS OBLIGATION TO NEGOTIATE IN GOOD FAITH AS REQUIRED BY THE
STATUTE. I THEREFORE RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 2430.20 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE UNITED STATES DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE POLICY GOVERNING REIMBURSING EMPLOYEES IN THE DES
MOINES, IOWA; ST. PAUL,
MINNESOTA; MILWAUKEE, WISCONSIN; AND ST. LOUIS, MISSOURI DISTRICTS
FOR EXPENSES INCURRED WHEN
TRAVELING TO TRAINING CLASSES CONDUCTED WITHIN COMMUTING DISTANCE
FROM THEIR POST OF DUTY
STATIONS WITHOUT FIRST AFFORDING THE NATIONAL TREASURY EMPLOYEES
UNION, THE EMPLOYEES
EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, NOTICE AND AN
OPPORTUNITY TO BARGAIN,
CONSONANT WITH THE OBLIGATIONS IMPOSED BY THE STATUTE, CONCERNING ANY
PROPOSED CHANGE IN SUCH
POLICY.
(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 EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESCIND THE CHANGE IN POLICY, ANNOUNCED PURSUANT TO THE
MEMORANDUM OF THE ASSISTANT
REGIONAL COMMISSIONER, RESOURCES MANAGEMENT, DATED MAY 4, 1981,
REWARDING REMUNERATING
EMPLOYEES IN THE DES MOINES, IOWA; ST. PAUL, MINNESOTA; MILWAUKEE,
WISCONSIN; AND ST. LOUIS,
MISSOURI DISTRICTS FOR EXPENSES INCURRED BY EMPLOYEES REPRESENTED BY
THE NATIONAL TREASURY
EMPLOYEES UNION, THE EMPLOYEES EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE, WHEN TRAVELING
TO TRAINING CLASSES CONDUCTED WITHIN COMMUTING DISTANCE FROM THEIR
POST OF DUTY STATIONS AND
RESTORE THE REMUNERATION POLICY IN EFFECT PRIOR TO SUCH CHANGE.
(B) UPON SUBMISSION OF AN APPROPRIATE VOUCHER BY ANY EMPLOYEE IN THE
DES MOINES,
IOWA; ST. PAUL, MINNESOTA; MILWAUKEE, WISCONSIN; AND ST. LOUIS,
MISSOURI DISTRICTS,
REPRESENTED BY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES
EXCLUSIVE REPRESENTATIVE,
REMUNERATE SAID EMPLOYEE FOLLOWING THE POLICY IN EFFECT PRIOR TO THE
CHANGE IN POLICY
ANNOUNCED PURSUANT TO THE ABOVE MEMORANDUM DATED MAY 4, 1981, FOR ANY
LOSS OF MONIES
OCCASIONED BY SUCH CHANGE IN POLICY.
(C) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES
EXCLUSIVE REPRESENTATIVE,
OF ANY INTENDED CHANGE IN THE POLICY FOR RENUMERATING EMPLOYEES IN
THE DES MOINES,
IOWA; ST. PAUL, MINNESOTA; MILWAUKEE, WISCONSIN; AND ST. LOUIS,
MISSOURI DISTRICTS FOR
EXPENSES INCURRED BY EMPLOYEES WHEN TRAVELING TO TRAINING CLASSES
CONDUCTED WITHIN COMMUTING
DISTANCES FROM THEIR POST OF DUTY STATION AND, UPON REQUEST,
NEGOTIATE IN GOOD FAITH ON THE
PROPOSAL TO THE EXTENT CONSONANT WITH THE OBLIGATIONS IMPOSED BY THE
STATUTE.
(D) POST AT ITS FACILITIES LOCATED IN THE DES MOINES, IOWA; ST.
PAUL,
MINNESOTA; MILWAUKEE, WISCONSIN; AND ST. LOUIS, MISSOURI DISTRICTS,
COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS AUTHORITY,
MODIFIED AS APPROPRIATE FOR EACH PARTICULAR DISTRICT. UPON RECEIPT OF
SUCH FORMS, THEY SHALL
BE SIGNED BY THE DISTRICT DIRECTORS FOR THE DISTRICTS INVOLVED
HEREIN, RESPECTIVELY, AND SHALL
BE POSTED AND MAINTAINED BY THEM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. THE DISTRICT DIRECTORS SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(E) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 5, FEDERAL LABOR
RELATIONS AUTHORITY, 175
WEST JACKSON BOULEVARD, SUITE A-1359, CHICAGO, ILLINOIS 60604, IN
WRITING, WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
HEREWITH.
/1/ THE TRANSCRIPTION OF THESE PROCEEDINGS WAS OF PARTICULARLY POOR
QUALITY. RESPONDENT AND THE GENERAL COUNSEL EACH FILED A MOTION TO
CORRECT THE HEARING TRANSCRIPT. NO PARTY FILED AN OBJECTION TO EITHER
MOTION. ACCORDINGLY, RESPONDENT'S AND THE GENERAL'S COUNSEL'S MOTIONS
ARE GRANTED AND THE CORRECTIONS HAVE BEEN SO NOTED IN THE OFFICIAL
TRANSCRIPT.
/2/ RESPONDENT POINTS TO NO PROVISION IN THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT WHICH WOULD CONTROL THE MATTERS AT ISSUE HEREIN.
/3/ IT WAS STIPULATED BY THE PARTIES AT THE HEARING THAT, PURSUANT TO
IRM 0410, RESPONDENT'S POLICY AFTER MAY 26 IN THE DES MOINES DISTRICT,
AS WELL AS THE OTHER DISTRICTS INVOLVED HEREIN, WAS TO PROVIDE
REIMBURSEMENT FOR TRAVEL BETWEEN THE OFFICIAL POST OF DUTY AND THE
TRAINING SITE. REIMBURSEMENT AT ALL FOUR DISTRICTS WAS OBTAINED BY
SUBMITTING TO MANAGERS CLAIMS ON OFFICIAL VOUCHER FORMS.
/4/ THIS FINDING IS BASED UPON THE CREDITED TESTIMONY OF CLEMENTS, AN
EMPLOYEE IN THE DES MOINES DISTRICT SINCE 1968 AND CHAPTER PRESIDENT
SINCE OCTOBER 1980. CLEMENTS TESTIFIED THAT HE ATTENDED ANNUAL TRAINING
SESSIONS UNTIL 1972 OR 1973 AND AGAIN FROM 1975 OR 1976, ALWAYS BEING
REIMBURSED FOR TRAVEL FROM HIS RESIDENCE TO THE OFF POST OF DUTY
TRAINING SITE AND RETURN. ALTHOUGH 130 TO 150 OTHER EMPLOYEES ATTENDED
THESE SESSIONS, CLEMENTS, IN HIS CAPACITY AS CHAPTER PRESIDENT OR AS AN
EMPLOYEE, NEVER HEARD OF ANY EMPLOYEE BEING REIMBURSED ON A DIFFERENT
BASIS. THE ONLY EVIDENCE OFFERED BY RESPONDENT BEARING ON THIS ISSUE WAS
THE TESTIMONY OF REIS THAT HE INFORMED CLEMENTS THAT THE SHANK
MEMORANDUM ". . . COULD INVOLVE SOME CHANGE IN PRACTICE AND WE WEREN'T
SURE OF THE EXACT SITUATION." HOWEVER, CLEMENTS, WHEN QUESTIONED AT THE
HEARING WHETHER MANAGEMENT ACKNOWLEDGED AT THE MEETING THAT THE SHANK
MEMORANDUM WOULD CONSTITUTE A CHANGE, REPLIED: "YES, THAT WAS THE FIRST
THING MR. REIS SAID."
/5/ TRAVEL PAYMENTS RELATED TO THE TRAINING SESSION COMMENCING IN
EARLY JUNE 1981 IN THE DES MOINES DISTRICT WERE MADE IN ACCORDANCE WITH
IRM 0410.
/6/ THIS FINDING IS BASED UPON THE CREDITED TESTIMONY OF JOHNSON, AN
EMPLOYEE IN THE ST. PAUL DISTRICT SINCE 1969 AND CHAPTER PRESIDENT FOR
APPROXIMATELY THREE AND A HALF YEARS PRIOR TO THE HEARING. JOHNSON
TESTIFIED THAT DURING HIS EMPLOYMENT UNTIL THE END OF MAY 1981 HE WAS
REIMBURSED APPROXIMATELY 100 TIMES FOR TRAVEL FROM HIS RESIDENCE TO A
NON POST OF DUTY TRAINING SITE. WHILE CHAPTER PRESIDENT PRIOR TO MAY
1981, JOHNSON HAD ABOUT A DOZEN CONVERSATIONS WITH EMPLOYEES CONCERNING
REIMBURSEMENT FOR TRAVEL TO TRAINING SESSIONS AND IT NEVER CAME TO HIS
ATTENTION THAT THE ST. PAUL DISTRICT HAD A POLICY OF NOT REIMBURSING
EMPLOYEES FOR TRAVEL FROM THEIR RESIDENCES. RESPONDENT OFFERED NO
EVIDENCE OR TESTIMONY WHICH WOULD INDICATE ANY OTHER STANDARD FOR
REIMBURSEMENT IN THE DISTRICT.
/7/ APPROXIMATELY 622 BARGAINING UNIT EMPLOYEES ARE LOCATED IN THE
MILWAUKEE DISTRICT.
/8/ THIS FINDING IS BASED UPON THE CREDITED TESTIMONY OF TOMASHEK, AN
EMPLOYEE OF 21 YEARS SERVICE IN THE MILWAUKEE DISTRICT AND CHIEF STEWARD
AND CHAPTER VICE PRESIDENT SINCE OCTOBER 1979. TOMASHEK TESTIFIED THAT
DURING HIS EMPLOYMENT THROUGH MAY 1981 HE ATTENDED FOUR OR FIVE LOCAL
OFFSITE TRAINING SESSIONS AND DISCUSSED TRAVEL REIMBURSEMENT WITH AN
UNDISCLOSED NUMBER OF EMPLOYEES AND TESTIFIED THAT FROM HIS PERSONAL
EXPERIENCES AND INFORMATION OBTAINED FROM OTHERS, THE PRACTICE IN THE
DISTRICT WAS TO REIMBURSE SUCH TRAVEL FROM THE EMPLOYEE'S RESIDENCE.
RESPONDENT OFFERED NO EVIDENCE OR TESTIMONY WHICH WOULD CONTROVERT THIS
TESTIMONY.
/9/ THE NEW POLICY HAS NOT YET BEEN IMPLEMENTED IN THE MILWAUKEE
DISTRICT ALTHOUGH INTENT TO EFFECTUATE THE POLICY WAS ANNOUNCED BY
MANAGEMENT IN SEPTEMBER 1981 DURING THE ONLY LOCAL TRAINING SESSION HELD
SINCE MAY 1981. IN SEPTEMBER, MILWAUKEE DISTRICT OFFICE MANAGEMENT,
AFTER UNION PROTEST, DECIDED TO REIMBURSEMENT EMPLOYEES UNDER THE PRIOR
SYSTEM FOR THE "LAST TIME" SINCE OTHER EMPLOYEES ATTENDING LOCAL
TRAINING DURING 1981 HAD ALREADY BEEN REIMBURSED UNDER THE PRIOR POLICY.
/10/ THIS FINDING IS BASED UPON THE CREDITED TESTIMONY OF BOYD,
EMPLOYED FOR 13 YEARS IN THE ST. LOUIS DISTRICT AND CHAPTER PRESIDENT
FOR FIVE YEARS. DURING HIS EMPLOYMENT PERIOD THROUGH MAY 1981, BOYD
ATTENDED 10 OR 12 LOCAL OFFSITE TRAINING SESSIONS AND WAS ALWAYS
REIMBURSED FOR TRAVEL FROM HIS RESIDENCE TO THE TRAINING SITE. IT WAS
HIS CONCLUSION THAT PRIOR TO MAY 1981 EMPLOYEES WERE REIMBURSED FOR
TRAINING TRAVEL UNDER THE TRAVEL MANUAL (IRM 1763) ALTHOUGH HE HAD NO
OCCASION TO DEAL WITH EMPLOYEES ABOUT TRAVEL EXPENSES DURING THIS TIME.
THE ONLY EVIDENCE WHICH WOULD SUGGEST A CONTRARY POLICY EXISTED IN THE
DISTRICT IS THE TESTIMONY OF GROTH WHO TESTIFIED THAT WHEN HE WAS
DISCUSSING THE SHANK MEMORANDUM WITH BOYD, GROTH STATED, ". . . THERE
MAY HAVE BEEN SOME INCONSISTENCY IN THIS DISTRICT'S PRACTICE. . . ."
HOWEVER, IN VIEW OF BOYD'S BACKGROUND AS CHAPTER PRESIDENT FOR FIVE
YEARS AND TESTIMONY REGARDING HIS PERSONAL EXPERIENCES AS TO THE
PRACTICE IN THE DISTRICT, IN MY VIEW IT WAS INCUMBENT OR RESPONDENT TO
OFFER DIRECT EVIDENCE ON THE PRACTICE IN THE DISTRICT TO COUNTER THE
THRUST OF BOYD'S TESTIMONY. AS NO SUCH EVIDENCE WAS FORTHCOMING, AND
RESPONDENT WAS IN A POSITION TO PROFFER SUCH EVIDENCE IF IT EXISTED, I
CONCLUDE THE PRACTICE IN THE DISTRICT WAS AS BOYD'S TESTIMONY SUGGESTED.
/11/ SEE HEARING TRANSCRIPT PAGES 36, 37, 38, AND 105.
/12/ ID.
/13/ HEARING TRANSCRIPT PAGE 17.
/14/ SINCE THE CHANGE IN POLICY WAS ANNOUNCED AS A FAIT ACCOMPLI IN
ALL FOUR DISTRICTS, IT IS IMMATERIAL THAT NO DEMAND TO NEGOTIATE WAS
MADE IN THE ST. LOUIS DISTRICT. FURTHER, WHETHER THE DISTRICT OFFICES
WOULD HAVE NEGOTIATED WITH THE UNION CONCERNING SOLELY IMPACT AND
IMPLEMENTATION QUESTIONS IN PURELY SPECULATIVE AND NOT PROBATIVE TO A
RESOLUTION OF THE MATTERS AT ISSUE HEREIN.
/15/ CF. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF PROGRAM OPERATIONS AND FIELD OPERATIONS,
SUTTER DISTRICT OFFICES, SAN FRANCISCO, CALIFORNIA, 5 FLRA NO. 63
(1981).
/16/ SECTION 7106(A)(1) PROVIDES, IN RELEVANT PART:
". . . NOTHING IN THIS CHAPTER SHALL AFFECT THE AUTHORITY OF ANY
MANAGEMENT OFFICIAL TO ANY
AGENCY . . . TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER
OF EMPLOYEES, AND INTERNAL
SECURITY PRACTICES OF THE AGENCY. . . "
/17/ SECTION 7117(A)(1) PROVIDES:
"(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OF ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION."
/18/ MATTER OF DEPARTMENT OF AGRICULTURE MEAT GRADERS-- MILEAGE, B
131810, JANUARY 3, 1978.
/19/ NO EVIDENCE WAS SUBMITTED WHICH WOULD SUPPORT A FINDING THAT
RESPONDENT WAS COMPELLED BY TO FOLLOW THE PROVISION OF IRM 0410 BY
FEDERAL LAW OR GOVERNMENT-WIDE RULE OR REGULATION.
/20/ INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, 9 FLRA 648 (1982);
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE
SERVICE, NEW ORLEANS DISTRICT, 3 FLRA 748 (1980), AT 759-766.
/21/ CLEMENTS TESTIFIED THAT MOST OF THE 400 BARGAINING UNIT
EMPLOYEES IN THE DES MOINES DISTRICT ARE "FIELD PEOPLE" WHO ARE
GENERALLY NOT AT THE DUTY STATION AND WOULD BE ENTITLED TO MILEAGE FROM
THEIR HOMES TO THE TRAINING SITE AS THOUGH THAT WAS THEIR WORKSITE FOR
THE DAY. CLEMENTS, JOHNSON, TOMASHEK, AND BOYD TESTIFIED AS TO THEIR OWN
EXPERIENCE OR THAT OF OTHERS REGARDING RECEIVING LESS REMUNERATION UNDER
IRM 0410 THAN UNDER IRM 1763.
/22/ COMPARE WITH OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS,
SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 5 FLRA NO. 45
(1981) AND CASES CITED THEREIN TREATING THE ISSUE OF SUBSTANTIAL IMPACT.
JEFFREY J. SIEBURG, ESQ. AND JAMES M. GECKER, ESQ., ON THE BRIEF, FOR
THE RESPONDENT
RICHARD S. EDELMAN, ESQ. AND JAMES R. LAWRENCE, ESQ., ON THE BRIEF,
FOR THE CHARGING PARTY
CLAIRE R. MORRISON, ESQ., FOR THE GENERAL COUNSEL
APPENDIX
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 CHANGE THE POLICY GOVERNING REMUNERATING EMPLOYEES IN THE
DES MOINES, IOWA; ST. PAUL, MINNESOTA; MILWAUKEE, WISCONSIN; AND ST.
LOUIS, MISSOURI DISTRICTS FOR EXPENSES INCURRED WHEN TRAVELING TO
TRAINING CLASSES CONDUCTED WITHIN COMMUTING DISTANCE FROM THEIR POST OF
DUTY STATIONS WITHOUT FIRST AFFORDING THE NATIONAL TREASURY EMPLOYEES
UNION, THE EMPLOYEES EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE,
NOTICE AND AN OPPORTUNITY TO BARGAIN, CONSONANT WITH THE OBLIGATIONS
IMPOSED BY THE STATUTE, CONCERNING ANY PROPOSED CHANGE IN SUCH POLICY.
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 RESCIND THE CHANGE IN POLICY, ANNOUNCED PURSUANT TO THE
MEMORANDUM OF THE ASSISTANT REGIONAL COMMISSIONER, RESOURCES MANAGEMENT,
DATED MAY 4, 1981, REGARDING REMUNERATING EMPLOYEES IN THE DES MOINES,
IOWA; ST. PAUL, MINNESOTA; MILWAUKEE, WISCONSIN; AND ST. LOUIS,
MISSOURI DISTRICTS FOR EXPENSES INCURRED BY EMPLOYEES REPRESENTED BY THE
NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE, WHEN TRAVELING TO TRAINING CLASSES CONDUCTED
WITHIN COMMUTING DISTANCE FROM THEIR POST OF DUTY STATIONS AND RESTORE
THE REMUNERATION POLICY IN EFFECT PRIOR TO SUCH CHANGE.
WE WILL UPON SUBMISSION OF AN APPROPRIATE VOUCHER BY ANY EMPLOYEE IN
THE DES MOINES, IOWA; ST. PAUL, MINNESOTA; MILWAUKEE, WISCONSIN; AND
ST. LOUIS, MISSOURI DISTRICTS, REPRESENTED BY THE NATIONAL TREASURY
EMPLOYEES UNION, THE EMPLOYEES EXCLUSIVE REPRESENTATIVE, REMUNERATE SAID
EMPLOYEE FOLLOWING THE POLICY IN EFFECT PRIOR TO THE CHANGE IN POLICY
ANNOUNCED PURSUANT TO THE ABOVE MEMORANDUM DATED MAY 4, 1981, FOR ANY
LOSS OF MONIES OCCASIONED BY SUCH CHANGE IN POLICY.
WE WILL NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES
EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGE IN THE POLICY FOR
REMUNERATING EMPLOYEES IN THE DES MOINES, IOWA; ST. PAUL, MINNESOTA;
MILWAUKEE, WISCONSIN; AND ST. LOUIS, MISSOURI DISTRICTS FOR EXPENSES
INCURRED BY EMPLOYEES WHEN TRAVELING TO TRAINING CLASSES CONDUCTED
WITHIN COMMUTING DISTANCES FROM THEIR POST OF DUTY STATIONS AND, UPON
REQUEST, NEGOTIATE IN GOOD FAITH ON THE PROPOSAL TO THE EXTENT CONSONANT
WITH THE OBLIGATIONS IMPOSED BY THE STATUTE.
. . . (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 5, WHOSE
ADDRESS IS: 175 WEST JACKSON BOULEVARD, SUITE A-1359, CHICAGO, ILLINOIS
60604, AND WHOSE TELEPHONE NUMBER IS (312) 886-3468. 770801 0000590
20 FLRA-ALJ; CASE NO. 1-CA-925 SEPTEMBER 30, 1982
DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW
HAMPSHIRE, RESPONDENT AND PORTSMOUTH FEDERAL EMPLOYEES, METAL TRADES
COUNCIL CHARGING PARTY
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5 U.S.C. SEC.
7101, ET SEQ., 92 STAT. 1191 (HEREINAFTER REFERRED TO AS THE STATUTE)
AND THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
(FLRA), 5 C.F.R. CHAPTER XIV, SEC. 2410, ET SEQ.
A CHARGES WAS FILED ON SEPTEMBER 21, 1981 AND AMENDED ON OCTOBER 29,
1981 BY THE PORTSMOUTH FEDERAL EMPLOYEES METAL TRADES COUNCIL
(HEREINAFTER CALLED THE UNION AND/OR MTC) AGAINST DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE (HEREINAFTER CALLED
RESPONDENT AND/OR PORTSMOUTH NAVAL SHIPYARD). PURSUANT TO THE ABOVE
DESCRIBED CHARGE AND AMENDED CHARGE, THE GENERAL COUNSEL OF THE FLRA, BY
THE DIRECTOR OF REGION I, ISSUED A COMPLAINT AND NOTICE OF HEARING ON
OCTOBER 29, 1981 ALLEGING THAT PORTSMOUTH NAVAL SHIPYARD VIOLATED
SECTIONS 7116(A)(1) AND (2) OF THE STATUTE BY DENYING AN EMPLOYEE AN
OPPORTUNITY TO ACT AS A SUPERVISOR BECAUSE THE UNION FILED AN JOB
GRADING APPEAL ON BEHALF OF THE EMPLOYEE. RESPONDENT FILED AN ANSWER
DENYING IT HAD VIOLATED THE STATUTE.
A HEARING IN THIS MATTER WAS CONDUCTED BEFORE THE UNDERSIGNED IN
PORTSMOUTH, NEW HAMPSHIRE. THE GENERAL COUNSEL OF THE FLRA AND
PORTSMOUTH NAVAL SHIPYARD WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE
EVIDENCE, TO ARGUE ORALLY AND TO SUBMIT POST-HEARING BRIEFS.
BASED UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN MTC HAS BEEN THE COLLECTIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF UNGRADED AND GS EMPLOYEES EMPLOYED BY
RESPONDENT, WITH CERTAIN EXCLUSIONS, NOT HERE RELEVANT AND MTC AND
PORTSMOUTH NAVAL SHIPYARD HAVE BEEN PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT. SANDBLASTERS ARE WITHIN THE UNIT DESCRIBED ABOVE.
ON SEPTEMBER 9, 1981 MICHAEL PARRY, A SANDBLASTER, FILED A JOB
GRADING APPEAL WITH THE ASSISTANCE OF UNION CHIEF STEWARD KEVIN DONOHUE.
THE APPEAL WAS SENT TO JOSEPH T. BELMONT, RESPONDENT'S PRODUCTION
SUPERINTENDENT, SHOP 71, PAINT SHOP. THERE WERE APPROXIMATELY 550
EMPLOYEES UNDER BELMONT'S OVERALL SUPERVISION, INCLUDING ABOUT 78
SANDBLASTERS, ONE OF WHOM WAS PARRY. BELMONT ADMITTEDLY RECEIVED PARRY'S
JOB APPEAL, OR AT LEAST HEARD ABOUT IT, BY SEPTEMBER 11, 1981.
ON SEPTEMBER 11, 1981 PARRY WAS ASSIGNED TO BOATS AT THE DRYDOCK.
PARRY'S FOREMAN, DOUG BUTLER, INFORMED PARRY THAT COMMENCING THE
FOLLOWING MONDAY, SEPTEMBER 14, AND CONTINUING FOR A FEW DAYS, PARRY
WOULD FILL IN FOR BUTLER AND WOULD BE ACTING FOREMAN. BUTLER GAVE PARRY
THE JOB ASSIGNMENTS THAT HAD TO BE PERFORMED AND ADVISED PARRY WHERE TO
ASSIGN THE EMPLOYEES AND TO MAKE SURE ALL THE WORK WAS PERFORMED.
ON SEPTEMBER 14, 1981 PARRY WORKED AS ACTING FOREMAN. AT THE CLOSE OF
THAT DAY, FOREMAN FRED EASTMAN, THE OTHER SANDBLASTER FOREMAN, COMMENDED
PARRY FOR DOING A GOOD JOB.
ON SEPTEMBER 15, 1981 AT ABOUT 7:30 A.M., IMMEDIATELY PRIOR TO THE
SHIFT, EASTMAN RECEIVED A TELEPHONE CALL FROM BELMONT. BELMONT ASKED TO
SPEAK TO BUTLER AND, WHEN INFORMED THAT BUTLER WAS NOT THERE, ASKED WHO
WAS FILLING IN FOR BUTLER. EASTMAN REPLIED THAT PARRY WAS FILLING IN FOR
BUTLER. BELMONT TOLD EASTMAN TO HAVE PARRY SUIT UP, TO GET A "NOZZLE IN
PARRY'S HAND" AND TO GET PARRY ON THE BOAT SANDBLASTING. BELMONT TOLD
EASTMAN THAT PARRY HAD FILED A JOB GRADING APPEAL AND BELMONT DID NOT
WANT PARRY FILLING IN FOR ANY SUPERVISORS AGAIN. UPON HANGING UP EASTMAN
REPEATED THE SUBSTANCE OF THE PHONE CALL TO SOME EMPLOYEES WHO WERE IN
EASTMAN'S OFFICE. EASTMAN THEN WENT UPSTAIRS TO THE LOCKER AREA AND, IN
THE PRESENCE OF A NUMBER OF EMPLOYEES, INFORMED PARRY OF THE SUBSTANCE
OF BELMONT'S PHONE CALL, INCLUDING ADVISING PARRY THAT BELMONT WANTED
PARRY WORKING AT SANDBLASTING NOT AS AN ACTING FOREMAN BECAUSE PARRY
FILED A JOB GRADING APPEAL. /1/
PARRY WAS THEN REMOVED AS ACTING SUPERVISOR.
DISCUSSION AND CONCLUSIONS
BASED ON THE FOREGOING FINDINGS OF FACT, I CONCLUDE THAT PARRY WAS
REMOVED FROM THE POSITION OF ACTING FOREMAN AND WAS NOT PERMITTED TO
FILL THAT POSITION BECAUSE HE HAD, WITH THE ASSISTANCE OF MTC, FILED A
JOB GRADING APPEAL. THE SUBJECT CASE IS NOT A "MIXED MOTIVE" SITUATION;
RATHER, THE HISTORY OF DISCIPLINE WAS RAISED AT THE HEARING SOLELY AS
JUSTIFICATION FOR THE BELMONT'S ACTION AGAINST PARRY. IN FACT THE ACTION
AGAINST PARRY HAD BEEN TAKEN SOLELY BECAUSE PARRY HAD, WITH UNION
ASSISTANCE, FILED A JOB GRADING APPEAL.
FURTHER, THE RECORD DOES NOT ESTABLISH THAT THE PARRY'S DISCIPLINARY
HISTORY WOULD HAVE DISQUALIFIED HIM FROM ACTING AS A SUPERVISOR. ON THE
CONTRARY, THE RECORD ESTABLISHES THAT AN EMPLOYEE WITH A 5-DAY
SUSPENSION WAS MADE A SUPERVISOR. THUS THE RECORD ESTABLISHES THAT THE
SOLE REASON THAT PARRY WAS REMOVED AS ACTING FOREMAN WAS BECAUSE HE HAD,
WITH THE AID OF THE UNION, FILED A JOB GRADING APPEAL, AND THAT IF PARRY
HAD NOT FILED THE APPEAL HE WOULD NOT HAVE BEEN REMOVED AS ACTING
FOREMAN.
HAVING THE OPPORTUNITY TO FILL IN FOR AND ACT AS A FOREMAN IS
OBVIOUSLY AN IMPORTANT PART OF AN EMPLOYEE'S JOB AND RESPONDENT'S
REMOVAL OF THAT OPPORTUNITY FROM PARRY, BECAUSE HE HAD, WITH MTC
ASSISTANCE, FILED THE APPEAL CONSTITUTED DISCRIMINATION AGAINST PARRY.
RESPONDENT'S CONDUCT CONSTITUTED DISCRIMINATION IN CONNECTION WITH
PARRY'S ". . . TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT . .
. " WHICH DISCOURAGED MEMBERSHIP IN MTC. RESPONDENT'S ACTION CLEARLY
INTERFERED WITH AND RESTRAINT PARRY FROM JOINING MTC AND HAVING MTC
ASSIST HIM IN FILING A JOB GRADING APPEAL.
ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENT'S CONDUCT CONSTITUTED A
VIOLATION OF SECTION 7116(A)(1) AND (2) OF THE STATUTE.
HAVING CONCLUDED THAT PORTSMOUTH NAVAL SHIPYARD VIOLATED SECTION
7116(A)(1) AND (2) OF THE STATUTE, I RECOMMEND THAT THE FLRA 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 THE NAVY, PORTSMOUTH
NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO PERMIT MICHAEL PARRY, OR ANY OTHER EMPLOYEE, TO FILL
THE POSITION OF ACTING
FOREMAN, BECAUSE PARRY, OR ANY OTHER EMPLOYEE, SOUGHT THE ASSISTANCE
OF THE PORTSMOUTH FEDERAL
EMPLOYEES METAL TRADES COUNCIL, IN FILING A JOB GRADING APPEAL OR
ENGAGING IN ANY OTHER LAWFUL
ACTIVITY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING THE EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE.
(A) POST AT ITS FACILITIES WHEREVER UNIT EMPLOYEES ARE LOCATED COPIES
OF THE ATTACHED
NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE
SIGNED BY A RESPONSIBLE OFFICIAL AND SHALL BE POSTED BY HIM FOR 60
CONSECUTIVE DAYS IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE OFFICIAL 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 I, ADDRESS IN WRITING WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER
AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
/1/ BELMONT DENIES THAT HE TOLD EASTMAN TO REMOVE PARRY AS ACTING
FOREMAN BECAUSE PARRY HAD FILED A JOB GRADING APPEAL. RATHER BELMONT
TESTIFIED THAT HE ADVISED EASTMAN, AFTER LEARNING THAT PARRY WAS ACTING
FOREMAN, THAT PARRY SHOULD BE REMOVED FROM ACTING FOREMAN AND SENT BACK
TO WORK AS A SANDBLASTER. BELMONT TESTIFIED THAT HE DID NOT GIVE EASTMAN
A REASON FOR THIS DECISION. BELMONT TESTIFIED THAT HE MADE THE DECISION
BECAUSE PARRY WAS NOT RELIABLE BECAUSE PARRY HAD BEEN DISCIPLINED THREE
TIMES IN THE PROCEEDING 13 MONTHS. DURING THAT PERIOD PARRY HAD RECEIVED
A LETTER OF REPRIMAND, A TWO-DAY SUSPENSION AND A 5-DAY SUSPENSION, ALL
FOR BEING AWAY FROM HIS JOB. I DISCREDIT BELMONT'S TESTIMONY WITH
RESPECT TO THE CONTENT OF HIS PHONE CONVERSATION WITH EASTMAN. I FIND
BELMONT'S TESTIMONY IN THIS RESPECT NOT TO BE CREDIBLE. FIRST EASTMAN'S
STATEMENTS WITH RESPECT TO HIS CONVERSATION WITH BELMONT WERE ALMOST
CONTEMPORANEOUS WITH THE CONVERSATION AND WERE REPEATED TO A NUMBER OF
EMPLOYEES. EASTMAN GAVE A WRITTEN STATEMENT ON THE DAY OF THE PHONE
CONVERSATION WHICH WAS OFFERED AND ADMITTED INTO EVIDENCE WITH NO
OBJECTION FROM RESPONDENT. FURTHER EASTMAN, A SUPERVISOR, WAS NOT
CALLED TO TESTIFY IN ORDER TO CORROBORATE BELMONT AND TO EXPLAIN THE
WRITTEN STATEMENT. FURTHER BELMONT TESTIFIED THAT HE PLACED THE
TELEPHONE CALL TO BUTLER TO OBTAIN CERTAIN IMPORTANT INFORMATION, YET
WHILE TALKING TO EASTMAN, WHO WOULD ALSO HAVE HAD THE INFORMATION,
BELMONT DID NOT SEEK TO OBTAIN THE "IMPORTANT" INFORMATION. IT IS ALSO
NOTED THAT ANOTHER EMPLOYEE WHO HAD BEEN SUSPENDED FOR 5-DAYS WAS
SUBSEQUENTLY MADE A FULL-TIME SUPERVISOR. IN ADDITION, BELMONT
TESTIFIED THAT ON OR ABOUT SEPTEMBER 11, HE TELEPHONICALLY TOLD EASTMAN
THAT PARRY HAD FILED A JOB GRADING APPEAL AND THAT PARRY SHOULD WORK AS
A SANDBLASTER. BELMONT APPARENTLY DID NOT TELL THIS TO BUTLER, PARRY'S
SUPERVISOR.
IN LIGHT OF ALL OF THE FOREGOING, I CREDIT EASTMAN'S WRITTEN
STATEMENT AND THE EMPLOYEES' TESTIMONY WITH RESPECT TO WHAT EASTMAN HAD
RELAYED AND I DISCREDIT BELMONT'S VERSION OF THE SEPTEMBER 15 PHONE
CALL.
A. GENE NIRO, ESQ. FOR THE RESPONDENT
MARSHA HUNTER, ESQ.
RICHARD ZAIGER, ESQ. FOR THE GENERAL COUNSEL
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 REFUSE TO PERMIT MICHAEL PARRY, OR ANY OTHER EMPLOYEE, TO
FILL THE POSITION OF ACTING FOREMAN, BECAUSE PARRY, OR ANY OTHER
EMPLOYEE, SOUGHT THE ASSISTANCE OF THE PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, IN FILING A JOB GRADING APPEAL OR ENGAGING IN ANY
OTHER LAWFUL ACTIVITY.
WE WILL NOT 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.
. . . (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 I,
WHOSE ADDRESS IS: 441 STUART STREET, 9TH FLOOR, BOSTON, MA 02116, AND
WHOSE TELEPHONE NUMBER IS: (617) 223-0920 770801 0000580
20 FLRA-ALJ; CASE NO. 1-CA-891 DECEMBER 30, 1982
BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, (DANBURY,
CONNECTICUT) RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON, LOCALS C-33, LOCAL 1661, AFL-CIO, CHARGING PARTY
BEFORE: WILLIAM B. DEVANEY, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING, /1/ UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5
U.S.C. 7101, ET SEQ. /2/ AND THE FINAL RULES AND REGULATIONS ISSUED
THEREUNDER, 5 C.F.R. 2423.1, ET SEQ., WAS INITIATED BY A CHARGE FILED ON
SEPTEMBER 8, 1981 (G.C. EXH. 1 A) AND A FIRST AMENDED CHARGE, FILED ON
OCTOBER 22, 1981 (G.C. EXH. 1 C). THE COMPLAINT AND NOTICE OF HEARING
ISSUED ON OCTOBER 28, 1981 (G.C. EXH. 1 E), FOR A HEARING ON DECEMBER
15, 1981. BY ORDER DATED NOVEMBER 16, 1981, THE HEARING WAS INDEFINITELY
POSTPONED (G.C. EXH. 1 G); BY ORDER DATED DECEMBER 10, 1981, HEARING
WAS RESCHEDULED FOR FEBRUARY 10, 1982, AT A TIME AND PLACE TO BE
DETERMINED (G.C. EXH. 1 H); BY ORDER DATED JANUARY 26, 1982, THE PLACE
AND TIME FOR HEARING WERE DESIGNATED (G.C. EXH. 1 I); ON FEBRUARY 2,
1982, RESPONDENT FILED A MOTION TO POSTPONE THE HEARING; BY ORDER DATED
FEBRUARY 9, 1982, THE HEARING WAS AGAIN RESCHEDULED FOR NOVEMBER 10,
1982, AT A TIME AND PLACE IN HARTFORD TO BE DETERMINED (G.C. EXH. 1 K);
BY ORDER DATED OCTOBER 26, 1982, THE TIME OF THE HEARING WAS FIXED AT A
PLACE TO BE DETERMINED (G.C. EXH. 1 L) AND, SUBSEQUENTLY, THE NATIONAL
GUARD ARMORY WAS DESIGNATED AS THE PLACE FOR THE HEARING, PURSUANT TO
WHICH A HEARING WAS DULY HELD ON NOVEMBER 10, 1982, IN HARTFORD,
CONNECTICUT, BEFORE THE UNDERSIGNED.
ALL PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED, AND WERE AFFORDED
OPPORTUNITY TO PRESENT ORAL ARGUMENT. AT THE CLOSE OF THE HEARING,
DECEMBER 10, 1982, WAS FIXED AS THE DATE FOR MAILING POST HEARING
BRIEFS. /3/ EACH PARTY HAS TIMELY MAILED A BRIEF, RECEIVED ON OR BEFORE,
DECEMBER 14, 1982, WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS
OF THE ENTIRE RECORD, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS
1. PRIOR TO APRIL 21, 1981, MR. ROBERT A. GUNNELL, WHO WAS THEN
WARDEN AT THE FEDERAL CORRECTIONAL INSTITUTIONAL IN TEXARKANA, TEXAS
(TR. 58), HAD BEEN SELECTED TO BE THE WARDEN OF THE FEDERAL CORRECTIONAL
INSTITUTION IN DANBURY, CONNECTICUT. PRIOR TO ASSUMING HIS NEW DUTIES,
MR. GUNNELL VISITED DANBURY, FOR ORIENTATION PURPOSES, DURING APRIL 1981
(TR. 58).
2. MS. GWEN SIZER, ACTING WARDEN, ISSUED A MEMORANDUM ANNOUNCING THAT
THE NEW WARDEN WOULD BE IN THE INSTITUTION THE WEEK OF APRIL 20 AND A ".
. . RECALL HAD BEEN SCHEDULED FOR 3:00 P.M. IN THE INMATE DINING HALL
AND IT WAS FOR STAFF AND INMATES AND IT WAS JUST A COFFEE AND CAKE HOUR
TO MEET AND GREET THE NEW WARDEN, AND AS MANY STAFF AS POSSIBLE WERE
URGED TO BE RELEASED TO ATTEND-- RELEASED FROM DUTY TO ATTEND THAT
RECALL" (TR. 37). MS. MARTHA JORDAN, PERSONNEL OFFICER, TESTIFIED THAT
THE STAFF WAS NOT REQUIRED TO THEIR SUPERVISOR AND THEY WOULD BE
UTILIZED TO RELIEVE SOMEBODY ELSE WHO WANTED TO ATTEND" (TR. 39).
3. IN ITS APRIL 1981, NEWSLETTER, LOCAL 1661, UNDER THE HEADING
"WARDEN GUNNELL", FIRST WELCOMED HIM, "OUR NEW WARDEN, DR. GUNNELL, IS
SCHEDULED TO ARRIVE HERE, MONDAY THE 20TH. THE LOCAL HOPES FOR A LONG,
FRIENDLY, AND PRODUCTIVE RELATION. WE WISH HIM THE BEST OF LUCK WHILE AT
THE FCI HERE" (G.C. EXH. 2). IN THE SECOND PARAGRAPH, THE NEWSLETTER
STATED:
"ON APRIL 22, THERE IS A 'GET TOGETHER' TO MEET THE NEW WARDEN
SCHEDULED FOR THE DINING
ROOM FOR BOTH INMATES AND STAFF. THE UNION ADVISES MEMBERS OF THE
BARGAINING UNIT NOT TO
ATTEND. WE FEEL THAT THE TIME IS NOT ADEQUATE AND THAT IF HE WANTS TO
MEET HIS STAFF AT A
COFFEE, INMATES SHOULD NOT BE PRESENT. WE THEREFORE ASK THAT YOU
REMAIN ON YOUR POST UNTIL
YOUR TOUR OF DUTY IS OVER" (G.C. EXH. 2).
4. MR. CLIFFORD S. STEENHOFF, PRESIDENT OF LOCAL 1661, TESTIFIED THAT
THE REASON FOR THE ADVICE TO EMPLOYEES, AS SET FORTH ABOVE, WAS THAT,
"WE DID NOT FEEL IT WAS APPROPRIATE THAT WE SHOULD MEET THE WARDEN AT
THE SAME TIME THAT
THE INMATES DID, IN THE SAME LOCATION" (TR. 14).
5. THERE IS NO DISPUTE THAT A MEETING TOOK PLACE IN THE WARDEN'S
OFFICE IN APRIL; THE PRECISE DATE, ACCORDING TO MS. JORDAN AND MR.
GUNNELL, BEING APRIL 21 (THE OTHER WITNESSES WERE UNCERTAIN AS TO THE
DATE BUT NOT ABOUT THE MEETING); AND THE TIME WAS FIXED BY MR.
STEENHOFF AS 1:00 P.M. (TR. 15), IN THE AFTERNOON BY MS. JORDAN (TR.
33) AND THE OTHER WITNESSES EITHER WERE UNCERTAIN OF THE TIME (TR. 45)
OR WERE NOT ASKED (TR. 22, 58); HOWEVER, THERE IS DISAGREEMENT AS TO
HOW THE MEETING CAME ABOUT. MR. STEENHOFF TESTIFIED THAT THE UNION
REQUESTED THE MEETING TO ". . . MEET THE NEW WARDEN" (TR. 15). ALTHOUGH
MS. DELORES J. CAUL, STEWARD, ALSO STATED THAT THE PURPOSE OF THE
MEETING WAS TO MEET THE NEW WARDEN (TR. 22), SHE TESTIFIED, ". . . BUT I
FOUND OUT THAT MRS. SIZER HAD SENT FOR CLIFF STEENHOFF" (TR. 31). MR.
ALBERT EDWARD COX, JR., THEN ASSOCIATE WARDEN, NOW IN THE COMMUNITY
PROGRAMS BRANCH OF CENTRAL HEADQUARTERS IN WASHINGTON, D.C., TESTIFIED
THAT MRS. SIZER, ACTING WARDEN, AND HE HAD CALLED THE UNION TO THE
WARDEN'S OFFICE TO DISCUSS THE BOYCOTT SUGGESTED IN THE NEWSLETTER (TR.
45, 46); THAT HE, COX, HAD MADE THE CALL TO MR. STEENHOFF (TR. 46).
6. PRESENT AT THE MEETING IN THE WARDEN'S OFFICE WERE: FOR THE UNION
- MR. STEENHOFF; MS. CAUL; AND MS. KAY TOLWORTHY, VICE PRESIDENT; FOR
RESPONDENT-- ACTING WARDEN SIZER; ASSOCIATE WARDEN COX; AND MS.
JORDAN. MR. STEENHOFF TESTIFIED THAT AT THE MEETING BETWEEN THE ACTING
WARDEN, THE ASSOCIATE WARDEN, THE PERSONNEL OFFICER, AND THE UNION
PEOPLE MS. SIZER WAS UPSET ABOUT THE NEWSLETTER BUT HE DIDN'T RECALL
WHAT WAS SAID (TR. 16). MS. CAUL TESTIFIED THAT MR. COX.
" . . . TURNED TO MARTHA (JORDAN) AND SAID THAT HE HAD DONE SOME
RESEARCH TO SEE IF THERE
WAS ANY VIOLATION OF CONTRACT ABOUT THE NEWSLETTER THAT HAD BEEN
PUBLISHED. IT WASN'T
INITIALLED OR SIGNED AND THAT ALL UNION PUBLICATIONS ARE REQUIRED TO
BE SIGNED."
MS. JORDAN WAS NOT ASKED ABOUT THIS MEETING. /4/ MR. COX TESTIFIED,
IN PART, AS FOLLOWS:
"Q. OKAY DO YOU RECALL WHAT MRS. SIZER SAID?
"A. SHE AND I BOTH HAVE (SIC) THE SAME THEME OF HEY, WE'RE TRYING TO
WELCOME THE NEW CHIEF
EXECUTIVE OFFICER THAT'S COMING IN AND HERE WE READ SOMETHING THAT'S
BEEN PUBLISHED SAYING
DON'T ATTEND, STAY AWAY. AND WE DESCRIBED IT AS BEING A RATHER PETTY
APPROACH.
"Q. ". . . DID THEY HAVE ANY RESPONSE TO YOUR RECOLLECTION?
"A. THE REMARKS THAT MR. STEENHOFF MADE WERE TO THE EFFECT THAT, HEY,
THE BOYCOTT IDEA IS
NOT MINE OR OURS, IT'S THEIRS (SIC), RELATING TO THE MEMBERSHIP.
"AS I HEARD MISS JORDAN'S COMMENT, OUR APPROACH TO THEM WAS YOU ARE
THE NUCLEUS OF THE
UNION, YOU REPRESENT THE UNION. IF IT'S BEING PUT OUT AS A PUBLISHED
DOCUMENT, THAT'S THE
UNION SAYING, AND AT THAT POINT I BELIEVE IS WHEN THEY SAID, WELL, WE
WOULD STILL LIKE TO MEET
THE INCOMING WARDEN AND WE SUGGESTED THAT THAT PROBABLY WASN'T, YOU
KNOW, SINCE HE WAS
DISTRESSED ABOUT WHAT HE READ AND THAT PROBABLY WASN'T TOO GOOD OF AN
IDEA.
"MR. STEENHOFF SAID WE WILL NOT DISCUSS AT ALL THAT BOYCOTT ISSUE.
WE (SIC) JUST LIKE TO
SAY I'M THE PRESIDENT, THAT IS THE VICE PRESIDENT, ETC. THAT'S KIND
OF THE TENOR OF WHAT
TRANSPIRED" (TR. 47-48).
7. MS. JORDAN AND MR. COX THEN WENT TO AN ADJOINING OFFICE AND ASKED
MR. GUNNELL TO COME IN AND MEET THE UNION OFFICIALS. MR. COX TESTIFIED
THAT,
"A . . . CONTRARY TO MR. STEENHOFF'S COMMENTS THAT LOOK, LET'S STAY
AWAY FROM THAT ISSUE,
HE IMMEDIATELY SAID, NOW WARDEN, I WANT YOU TO KNOW THAT WASN'T US,
THAT WASN'T US, THAT WAS
THEM.
"Q. IS THAT THE FIRST THING THAT WAS STATED AFTER THE . . .
"A. YES.
"Q. AFTER DR. GUNNELL CAME IN THE ROOM?
"A. YES.
MR. STEENHOFF TESTIFIED, IN PART, AS FOLLOWS:
"Q. DO YOU RECALL WHAT IF ANYTHING HAPPENED WHEN MR. GUNNELL ARRIVED?
"A. YES I DO.
. . . .
"A. HE WAS INTRODUCED AND THEN HE SAT DOWN. HE HAD A COPY OF THE
NEWSLETTER AND HE
REFERRED TO IT AND SAID THIS WAS PRETTY. HE WENT ON TALKING ABOUT THE
UNION AND AH, THANK
GOD, THE MILITARY DOESN'T HAVE UNIONS. HE QUESTIONED HOW MUCH
AUTHORITY THE UNION PRESIDENT
HAD. THEN HE SUMMARIZED --
"JUDGE DEVANEY: WHEN YOU SAY QUESTIONED, WHAT DID HE SAY? LET'S GET
AN ACCURATE
RECOLLECTION OF WHAT YOU RECALL MR. GUNNELL SAYING. WHAT DID HE SAY?
"A. HE SAID I WONDER HOW MUCH POWER THE UNION PRESIDENT HAS. WHEN I
GIVE AN ORDER I
EXPECT IT TO BE CARRIED OUT.
. . . .
"A. THEN HE SAID-- HE ASKED THE QUESTION, ISN'T THERE A PLACE ON THE
PERFORMANCE
EVALUATION ON LOYALTY AND HE WENT ON TO SAY HE DOESN'T SEE HOW THE
UNION CAN BE LOYAL TO THE
UNION AND THE PRISON. THAT WAS IT.
. . . .
"JUDGE DEVANEY: DID YOU MAKE ANY RESPONSE TO WHAT MR. GUNNELL SAID?
"THE WITNESS: NO, I DIDN'T.
"JUDGE DEVANEY: DID ANYONE ELSE MAKE A RESPONSE?
"THE WITNESS: NO." (TR. 17-18)
"Q. GOING BACK TO TUESDAY, APRIL 21, 1981, DID MS. SIZER CONTACT THE
UNION? OR AN OFFICER
OF THE UNION TO DISCUSS WITH HIM WHY THEY PLANNED A BOYCOTT OF THE
UNION (SIC)?
"A. NOT TO MY KNOWLEDGE, NO.
"Q. SO THEN THE UNION WENT TO THE WARDEN'S THAT AFTERNOON AT 1:00
P.M. THEN, IT WAS AT THE
UNION'S REQUEST AS YOU TESTIFIED EARLIER?
"A. YES." (TR. 19)
MS. CAUL TESTIFIED, IN PART, AS FOLLOWS:
"Q. AND DO YOU RECALL WHAT, IF ANYTHING, WAS SAID WHEN MR. GUNNELL
CAME IN?
"A. YES, HE SAID THAT UPON HIS ARRIVAL, HE FOUND IN THE LOBBY, THE
NEWSLETTER ADVOCATING A
BOYCOTT OF THE RECEPTION AND THOUGHT IT WAS PRETTY.
"Q. DO YOU RECALL WHAT, IF ANYTHING ELSE, HE SAID?
"A. SOMETHING TO THE EFFECT THAT UNION OFFICERS HIDING BEHIND THEIR
TITLES AND THAT THEY
SHOULD BE LIKE IN THE MILITARY-- HE ASKED CLIFF IF HE HAD BEEN IN THE
MILITARY AND CLIFF SAID
YES. HE SAID THINGS SHOULD BE LIKE THEY ARE IN THE MILITARY.
. . . .
"Q. DO YOU RECALL WHAT IF ANYTHING ELSE THE WARDEN SAID?
"A. HE SAID THAT ADVOCATING THE BOYCOTT WAS BEING DISLOYAL TO THE
AGENCY; THAT WHAT WOULD
HAPPEN IN AN EMERGENCY SITUATION, WOULD THE UNION TELL THE EMPLOYEES
NOT TO RESPOND?
"Q. DO YOU RECALL WHETHER HE SAID ANYTHING ELSE?
"A. NO.
"Q. IN THAT CONNECTION?
"A. HE SORT OF-- IT WASN'T A QUESTION AND IT WASN'T A STATEMENT. HE
ASKED MR. COX WASN'T
LOYALTY A PART OF THE PERFORMANCE EVALUATION-- LOYALTY TO THE AGENCY"
(TR. 23-24, SEE, ALSO,
TR. 25-26).
. . . .
"A. . . . I DO RECALL THAT SOMEONE DID RESPOND TO THE STATEMENT THAT
WASN'T LOYALTY-- WHAT
WOULD THE EMPLOYEES-- THE UNION DO IF THERE WAS AN EMERGENCY
SITUATION AND SOMEONE RESPONDED
THAT IT WAS DIFFERENT. YOU COULDN'T EQUATE THE TWO-- IN THAT CASE WE
WOULDN'T ADVOCATE A
BOYCOTT" (TR. 28).
8. MS. JORDAN STATED THAT MOST OF MR. GUNNELL'S COMMENTS, ". . .
WERE CENTERED AROUND THE NEWSLETTER. . . . " (TR. 34), AND SHE FURTHER
TESTIFIED, IN PART, AS FOLLOWS:
"A. HE DID MENTION THAT UPON HIS INITIAL ARRIVAL AT THE INSTITUTION
HE HAD SEEN THE
NEWSLETTER AND HE THOUGHT IT WAS A BAD WAY TO START OFF A NEW-- A
RELATIONSHIP-- A NEW WARDEN
AND NEVER HAVING A THE MEMBERS OF THE UNION. HE FELT THAT IT WAS A
BAD WAY TO START OFF THE
RELATIONSHIP.
"Q. WAS THAT ALL HE SAID?
"A. THERE WAS SOME DISCUSSION ABOUT IF HE HAD-- IF THERE WERE AN
EMERGENCY SITUATION AND
HE GAVE DIRECTIONS OR ORDERS TO THE STAFF TO DO SOMETHING, IF THE
UNION DISAGREED, WOULD THEY
IN TURN GIVE COUNTER-- DIRECTIONS TO THE STAFF. . . . (TR. 34)
THE WITNESS: HE MADE SOME SORT OF REFERENCE TO ABOUT IT (LOYALTY)
BEING ON THE BP-194
WHICH IS THE PERFORMANCE EVALUATION FORM THAT WE USE AT THE AGENCY.
"JUDGE DEVANEY: DO YOU RECALL ANY OTHER REFERENCE TO LOYALTY?
"THE WITNESS: NO.
"JUDGE DEVANEY: BUT HE DID REFER TO THE PERFORMANCE EVALUATION FORM?
THE WITNESS: YES.
"JUDGE DEVANEY: AND IT WAS THAT LOYALTY WAS AN ITEM ON THAT FORM?
"THE WITNESS: YES." (TR. 42)
. . . .
"Q. SO HE WAS TELLING THE UNION THAT HE CONSIDERED THIS TO BE AN ACT
OF DISLOYALTY, THIS
BOYCOTT-- THIS NEWSLETTER?
"A. I DON'T KNOW IF THAT WAS HIS INTENTIONS (SIC) OR NOT.
"Q. WHAT WAS HE-- BUT HE DID REFER TO LOYALTY BEING ON THE EVALUATION
FORM?
"A. YES. HE HAS ALSO PREVIOUSLY BEEN TALKING ABOUT FOLLOWING ORDERS.
THAT IF HE GAVE A
COMMAND (SIC), WOULD SOMEBODY GIVE A COUNTER-COMMAND." (TR. 43).
MR. COX CONCEDED THAT THE OCCASION IN APRIL 1981, WAS THE FIRST TIME
THAT A SOCIAL FUNCTION HAD BEEN HELD AT DANBURY WHERE INMATES AND
EMPLOYEES COULD MINGLE (TR. 52); THAT WHILE THE UNION WAS CONCERNED
ABOUT INMATES BEING PRESENT (TR. 54) MANAGEMENT WAS NOT (TR. 54); THAT
EVERYONE IN THE OFFICE HAD BEEN DISTRESSED ABOUT THE NEWSLETTER AND HE,
MRS. SIZER AND WARDEN GUNNELL HAD CHATTED ABOUT IT BEFORE THE MEETING
WITH THE UNION, "AND WE WERE ALL DISTRESSED ABOUT IT" (TR. 54). MR. COX
FURTHER TESTIFIED, IN PART, AS FOLLOWS:
"Q. AND WHAT WAS IT THAT DISTRESSED YOU?
"A. IN ANY NORMAL ORGANIZATION, YOU WANT TO HAVE THE BEST
RELATIONSHIP BETWEEN MANAGEMENT
AND LABOR AS YOU CAN AND THIS WAS A TOOL THAT WE WANTED TO INTRODUCE
THE NEW BOSS AND SAY HI
TO EVERYBODY.
"THE INMATE ISSUE-- THE INMATES BEING IN ATTENDANCE WAS NOT EVEN
LOOKED UPON AS BEING
NEGATIVE OR ANYTHING-- NEGATIVE OR POSITIVE. IT WAS SORT OF A NEUTRAL
THING, THIS IS THE NEW
BOSS (TR. 53).
. . . .
"Q. NOW THE WARDEN WHEN HE CAME IN THE OFFICE . . . YOU TESTIFIED
THAT MR. GUNNELL SAID
THAT DANBURY WAS KNOWN TO HAVE A MILITANT AND A DEMANDING UNION?
"A. ANYONE IN ANY OF OUR INSTITUTIONS KNOWS THAT DANBURY HAS THAT
REPUTATION.
"Q. AND THE WARDEN . . . MR. GUNNELL, WAS MAKING IT CLEAR TO THE
UNION THAT IT WAS HIS
INTENTION TO BE IN CHARGE OF THE PRISON?
"A. THAT'S CORRECT.
"Q. AND THAT HE EXPECTED LOYALTY FROM THE UNION?
"A. THE LOYALTY ISSUE I'M NOT RELATING TO LOYALTY, FROM THE UNION,
LOYALTY FROM
EMPLOYEES. I DON'T SEE THAT THIS-- AN EMPLOYEE AND THE UNION BEING
THE SAME ELEMENT.
"Q. BUT MR. GUNNELL BROUGHT UP THE SUBJECT OF LOYALTY?
"A. IF HE BROUGHT IT UP, IT WAS IN THE CONTEXT OF EXPECTING LOYALTY
FROM THE EMPLOYEES TO
THE HIRING ORGANIZATION, THE EMPLOYER.
"Q. YOU SAID . . . UNDER THE PREVIOUS SYSTEM THERE WAS A SOLEMN
LOYALTY BETWEEN AN
EMPLOYEE AND AN EMPLOYER?
"A. THERE WAS A PRIDE IN WORKING A-- A FELT OBLIGATION TO THE
EMPLOYER WHICH IN MY OPINION
DOES NOT EXIST.
"Q. AND THAT NEWSLETTER SHOWED THAT IT DIDN'T EXIST? IS THAT RIGHT?
"A. IN MY OPINION, THAT'S CORRECT. . . . (TR. 54-55).
9. MR. GUNNELL TESTIFIED, IN PART, AS FOLLOWS:
"A. I CAME INTO THE MEETING AND MET THE PEOPLE AND THE ISSUE CAME UP
ABOUT THE BOYCOTT AND
I MADE A COMMENT ABOUT THE BOYCOTT. I THOUGHT IT WAS PETTY AND I WAS
SORRY THAT I HAD TO MEET
THE UNION THE FIRST TIME THAT WAY.
"I INDICATED HOW DISAPPOINTED I WAS IN THAT APPROACH AND I WENT ON TO
TELL THEM ABOUT SOME
OF MY EXPECTATIONS OF THE UNION AND EMPLOYEES IN GENERAL.
. . .
"A. . . . I MADE IT VERY CLEAR THAT AS CHIEF EXECUTIVE OFFICER THAT I
WAS RESPONSIBLE FOR
RUNNING THE INSTITUTION AND I ALSO MADE IT VERY CLEAR THAT I COULDN'T
RUN IT ALONE, THAT I
WOULD EXPECT THE UNION TO ASSIST ME AND SUPPORT ME. I INDICATED THAT
IN AN INSTITUTION LIKE
THIS, BEING VERY MUCH LIKE MILITARY, YOU HAVE TO HAVE ONE PERSON IN
CHARGE AND YOU HAVE TO
HAVE THE SUPPORT OF OTHERS. I INDICATED THAT IN CASES OF EMERGENCY
AND I USED THE WORDS
SPECIFICALLY, WHEN THE CHIPS WERE DOWN, YOU COVER MY BACK AND I'LL
COVER YOURS, BECAUSE WE
HAVE TO SHOW A UNITED FRONT; WE CAN'T SHOW A DIVISION. AND IN SUCH
INSTANCES, I WOULD BE
GIVING THE ORDERS AND IF FOR SOME REASON, UNION MEMBERS DIDN'T AGREE
WITH THEM, THEY WOULD
HAVE-- THEY SHOULD ABIDE BY THEM AND IF WE HAD PROBLEMS LATER, WE
COULD DISCUSS THEM LATER.
"AND I WENT ON TO POINT OUT THAT THE EFFICIENCY OF ANY ORGANIZATION
DEPENDS UPON LOYALTY OF
ALL EMPLOYEES FOR THE COMMON GOAL. AND WHAT (SIC) OUR COMMON GOAL WAS
TO CONTROL THE INMATES
AND THE SECURITY OF THE INSTITUTIONS AND I WOULD EXPECT THAT OF THEM,
ALL EMPLOYEES.
. . . .
"A. . . . IN MY PRESENTATION ABOUT THE OPERATION OF THE INSTITUTION
AND THE EFFICIENCY OF
THE INSTITUTION AND SO FORTH, THAT LOYALTY TO THE MAN IN CHARGE WAS
VERY IMPORTANT AND
INDICATED THAT THAT WAS ON THE EVALUATION, THE 194, OF EMPLOYEES.
THAT WAS CONSIDERED A
CRITICAL ELEMENT AT THAT TIME" (TR. 59-60).
. . .
"Q. WELL, YOU WERE CONCERNED WITH THE FACT THAT THEY ADVOCATED A
BOYCOTT OF THIS COFFEE
HOUR, IS THAT IS CORRECT?
"A. NOT ONLY THAT, BUT THE FACT WAS THAT IT HAD BEEN DONE IN--
"Q. IN A NEWSLETTER?
"A. IN OPPOSITION TO THE MASTER AGREEMENT.
"Q. DID YOU MENTION THAT TO MR. STEENHOFF?
"A. I THINK THAT SOMEWHERES (SIC) IN THE CONVERSATION, I PROBABLY
DID.
"Q. SO NOW-- CAN YOU TELL WHAT YOU RECALL IN THAT REGARD?
"A. NO, I CAN'T TELL YOU SPECIFICALLY, BUT IN EFFECT IT WAS TO THE
EFFECT THAT THE
NEWSLETTER . . . DID NOT HAVE ANY INITIAL ON IT OR SIGNATURE.
"ACCORDING TO THE MASTER AGREEMENT /5/ ANYTHING SUBMITTED LIKE THAT
SHOULD HAVE EITHER AN
INITIAL OR A SIGNATURE ON IT.
"Q. IT HAD THE HEADING OF THE UNION ON IT, IS THAT CORRECT?
"A. CORRECT.
"Q. THERE WAS NO DOUBT THAT THE UNION WAS ADVOCATING A BOYCOTT, IS
THAT RIGHT?
"A. IT SAYS SO. AS SUCH IT DIDN'T SAY BOYCOTT, BUT YES, NO DOUBT,
THAT'S CORRECT.
"Q. AND YOU WERE AWARE OF THAT WHEN YOU WALKED INTO THE MEETING WITH
THE UNION?
"A. YES.
"Q. AND YOU CONSIDERED THAT AN OPPOSITION TO MANAGEMENT?
"A. I THOUGHT IT WAS AN OPPOSITION TO GOOD, SAFE RELATIONSHIP FROM
THE BEGINNING, YES.
"Q. AND YOU TOLD MR. STEENHOFF THAT YOU FELT THAT THE UNION
OVERSTEPPING (SIC) ITS
AUTHORITY?
"A. I CAN'T RECALL USING THAT STATEMENT, BUT IF YOU'RE ASKING ME
TODAY, I WOULD SAY
YES. I THINK IT WAS OVERSTEPPING THEIR AUTHORITY, BUT I CAN'T RECALL
AT THIS TIME WHETHER I
SAID THAT AT THAT TIME, NO. BUT YES, I DO THINK IT WAS OVERSTEPPING
THEIR AUTHORITY,
ESPECIALLY IN VIOLATION OF THE MASTER AGREEMENT.
"Q. THE FACT THAT IT WASN'T SIGNED?
"A. CORRECT. IT'S A VIOLATION.
. . .
"Q. BUT IT WAS A MANAGEMENT DECISION TO HOLD A SOCIAL?
"A. YES . . . I MADE IT VERY CLEAR THAT WHEN MANAGEMENT PUT OUT A
MEMORANDUM ABOUT--
RELATIVE TO A DECISION LIKE THAT, IT WAS IMPROPER FOR THE UNION TO
COME UP AND TELL THE STAFF
TO COUNTER MANAGEMENT'S DECISION.
"Q. WHATEVER THE DECISION WAS?
"A. YES.
"Q. EVEN IF THE EMPLOYEES DIDN'T HAVE TO ATTEND?
"A. RIGHT. IF HE HAD PROBLEMS WITH IT, THE PROPER WAY TO DO IT, AND I
MENTIONED AT THAT
TIME, WOULD HAVE BEEN TO COME TO MANAGEMENT. YOU CAN ONLY HAVE ONE
CHIEF EXECUTIVE RUNNING AN
INSTITUTION. AND I STILL BELIEVE THAT.
"Q. SO IT WAS IMPROPER FOR MR. STEENHOFF TO COMMUNICATE TO HIS
MEMBERS INSTEAD OF
COMMUNICATING TO MANAGEMENT?
"A. I THOUGHT IT WAS.
"Q. AND YOU MADE THAT CLEAR TO HIM IN THIS FIRST MEETING?
"A. I STATED IT, I DON'T KNOW HOW CLEARLY IT WAS I STATED IT" (TR.
63-66).
. . . .
"A. . . . I WANTED TO MAKE IT VERY CLEAR, I DIDN'T SPECIFICALLY SAY
IT, BUT I WANTED TO
MAKE IT VERY CLEAR THAT I WOULD NOT TOLERATE SUCH. NO THREATS, JUST
GENERAL FACT OF WE NEED
TO BE TOGETHER TO RUN THIS INSTITUTION" (TR. 71).
10. MR. GUNNELL FURTHER TESTIFIED, CONCERNING ATTENDANCE AT THE
RECEPTION:
". . . WE HAD A GOOD TURN OUT. CONTRARY TO THE UNION'S INSTRUCTIONS,
WE HAD AN EXCELLENT
TURN OUT" (TR. 68).
CONCLUSIONS
I AM AWARE, AS SET FORTH ABOVE, THAT MR. STEENHOFF, TESTIFIED THAT
MR. GUNNELL SAID, ". . . HE DOESN'T SEE HOW THE UNION CAN BE LOYAL TO
THE UNION AND THE PRISON" (TR. 17). MS. CAUL DID NOT RECALL ANY SUCH
STATEMENT (TR. 26); MS. JORDAN DENIED THAT ANY SUCH STATEMENT WAS MADE
(TR. 35); AS DID MR. COX (TR. 50) AND WARDEN GUNNELL DENIED THAT HE
MADE ANY SUCH STATEMENT (TR. 70). ACCORDINGLY, I DO NOT CREDIT MR.
STEENHOFF'S TESTIMONY IN THIS REGARD AND, TO THE CONTRARY, BASED ON ALL
OTHER TESTIMONY, CONCLUDE THAT WARDEN GUNNELL MADE NO STATEMENT TO THE
EFFECT THAT HE COULD NOT UNDERSTAND HOW AN EMPLOYEE COULD BE BOTH LOYAL
TO THE AGENCY AND A MEMBER OF THE UNION. HOWEVER, I DO FIND, AS FURTHER
ALLEGED IN PARAGRAPH 6(A) OF THE COMPLAINT, THAT WARDEN GUNNELL SAID, IN
EFFECT, THAT "UNION ADVOCACY OF A BOYCOTT OF AN OPTIONAL COFFEE HOUR
COULD RESULT IN AN EVALUATION OF DISLOYALTY ON AN EMPLOYEE'S PERFORMANCE
EVALUATION."
EXCEPT FOR MR. STEENHOFF'S TESTIMONY CONCERNING LOYALTY TO THE UNION
AND TO THE AGENCY, WHICH I HAVE NOT CREDITED, I FOUND ALL OF THE
WITNESSES CREDIBLE, ALTHOUGH THEIR RECALL VARIED, AND THERE WAS NO REAL
CONFLICT IN THEIR TESTIMONY. THUS, MS. CAUL TESTIFIED THAT MR. GUNNELL
STATED THAT UNION OFFICERS WERE HIDING BEHIND THEIR TITLES AND WARDEN
GUNNELL ADMITTED THAT HE SAID THE NEWSLETTER WAS IN VIOLATION OF THE
MASTER AGREEMENT BECAUSE IT WASN'T SIGNED; MS. CAUL TESTIFIED THAT MR.
GUNNELL SAID THAT ADVOCATING THE BOYCOTT WAS BEING DISLOYAL TO THE
AGENCY AND REFERRED TO LOYALTY ON THE EMPLOYEE'S PERFORMANCE EVALUATION
AND WARDEN GUNNELL STATED THAT HE ". . . MADE IT VERY CLEAR THAT WHEN
MANAGEMENT PUT OUT A MEMORANDUM . . . RELATIVE IN A DECISION LIKE THAT
(THE RECEPTION), IT WAS IMPROPER FOR THE UNION TO COME UP AND TELL THE
STAFF TO COUNTER MANAGEMENT'S DECISION" EVEN IF EMPLOYEES DIDN'T HAVE TO
ATTEND; THAT HE ". . . WOULD NOT TOLERATE SUCH;" THAT HE INDICATED THAT
LOYALTY WAS ON THE ". . . EVALUATION, THE 194, OF EMPLOYEES. THAT WAS
CONSIDERED A CRITICAL ELEMENT AT THAT TIME;" AND THAT THE UNION'S
ADVOCACY OF THE BOYCOTT OF THE RECEPTION WAS ". . . AN OPPOSITE TO GOOD,
SAFE RELATIONSHIP. . . . "
RESPONDENT ASSERTS THAT WARDEN GUNNELL'S STATEMENTS WERE PROTECTED
UNDER SEC. 16(E), AND RELIES UPON OKLAHOMA CITY AIR LOGISTICS CENTER
(AFLC), TINKER AIR FORCE BASE, OKLAHOMA, 6 FLRA NO. 32, 6 FLRA 159
(1981). EVEN THOUGH, AS MR. COX TESTIFIED, AND WARDEN GUNNELL AFFIRMED,
THE NEWSLETTER ISSUE WAS RAISED BY MR. STEENHOFF, I DO NOT AGREE THAT
HIS COMMENTS WERE, UNDER THE CIRCUMSTANCES, PROTECTED SINCE, CLEARLY,
HIS STATEMENT DID CONTAIN A THREAT OF REPRISAL, I.E., AN ADVERSE
PERFORMANCE APPRAISAL FOR DISLOYALTY, AND, ACCORDINGLY, WERE MADE UNDER
COERCIVE CONDITIONS. FURTHER, ABSENT A CLEAR CONTRACTUAL REQUIREMENT,
WHICH RESPONDENT HAS FAILED TO SHOW, RESPONDENT'S ACTION, BOTH THROUGH
ACTING WARDEN SIZER AND ASSOCIATE WARDEN COX AND THROUGH WARDEN GUNNELL
TO COMPEL DISCLOSURE OF THE IDENTITY OF THE INDIVIDUAL AUTHOR OF
PARTICULAR UNION STATEMENTS, COUPLED WITH THE THREAT OF AN ADVERSE
PERFORMANCE EVALUATION, WAS COERCIVE AND A DIRECT THREAT TO ANY PERSON
TAKING PART IN WRITING THE UNION'S NEWSLETTER. SECTION 2 OF THE STATE
ASSURES, "EACH EMPLOYEE . . . THE RIGHT TO FORM, JOIN, OR ASSIST ANY
LABOR ORGANIZATION . . . FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL,
AND EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT . . .
" AND SEC. 14(A)(1) OF THE STATUTE PROVIDES THAT, "A LABOR ORGANIZATION
WHICH HAS BEEN ACCORDED EXCLUSIVE RECOGNITION . . . IS ENTITLED TO ACT
FOR . . . ALL EMPLOYEES IN THE UNIT. . . " SEC 16(E) PROTECTS THE ". . .
THE MAKING OF ANY STATEMENT . . . " IF IT ". . . CONTAINS NO THREAT OF
REPRISAL . . . OR WAS NOT MADE UNDER COERCIVE CONDITIONS . . . ", BY THE
UNION AS WELL AS BY MANAGEMENT. INDEED, IN FURTHERANCE OF THE RIGHTS AND
OBLIGATION UNDER THE STATUTE, THE UNION MUST BE FREE TO COMMUNICATE WITH
EMPLOYEES IN THE BARGAINING UNIT AND TO SPEAK FOR THE EMPLOYEES. CF.
VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO, 2 FLRA NO.
106, 2 FLRA 854 (1980); BUREAU OF PRISONS, FEDERAL CORRECTIONAL
INSTITUTION (DANBURY, CONNECTICUT) AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS C-33, LOCAL 1661, AFL-CIO, CASE NO.
1-CA-20137 (OALJ 83-40, 1983).
THE FACT THAT A SOCIAL GATHERING WOULD BE HELD AT ALL FOR PRISONERS
OF A PENAL INSTITUTION IS A FURTHER DRASTIC SHIFT IN ATTITUDE CONCERNING
PRISON INMATES, BUT TO ARRANGE, FOR THE FIRST TIME AT DANBURY, A SOCIAL
GATHERING AT WHICH PRISONERS WOULD MINGLE WITH STAFF, INCLUDING GUARDS,
REASONABLY PROVOKED A REACTION BY THE UNION WHICH OBJECTED TO THE
MINGLING OF STAFF AND INMATES. THIS CASE DOES NOT INVOLVE AN ORDER, OF
COMMAND, BY MANAGEMENT WITH WHICH, WITH VERY RARE EXCEPTIONS, EMPLOYEES
MUST OBEY UNHESITATINGLY, AND GRIEVE LATER; BUT, RATHER, THIS CASE
INVOLVES AN "INVITATION" FOR STAFF TO ATTEND A SOCIAL FUNCTION WITH
INMATES AND, FULLY ASSUMING, AS WARDEN GUNNELL CONTENDED, THAT IT
CONSTITUTED A MANAGEMENT DECISION, NEVERTHELESS, THE UNION, ON BEHALF OF
THE EMPLOYEES IN THE BARGAINING UNIT, HAD A PROTECTED RIGHT TO EXPRESS
ITS VIEWS CONCERNING SUCH MANAGEMENT DECISION, INCLUDING THE URGING OF
EMPLOYEES NOT TO ATTEND, AND ITS RIGHT, AND THE RIGHT OF INDIVIDUAL
EMPLOYEES, TO MAKE SUCH STATEMENT WAS PROTECTED UNDER SEC. 16(E). WHEN
RESPONDENT COUPLED ITS STATEMENTS TO UNION OFFICERS STEENHOFF, CAUL, AND
TOLWORTHY WITH THE THREAT OF REPRISAL AND UNDER COERCIVE CONDITIONS, THE
STATEMENTS OF WARDEN GUNNELL, WHICH, ABSENT SUCH THREAT OF REPRISAL AND
COERCION WOULD HAVE BEEN FULLY PROTECTED UNDER SEC. 16(E), CEASED TO BE
PROTECTED COMMENTS AND RESPONDENT THEREBY VIOLATED SEC. 16(A)(1) OF THE
STATUTE.
I DO NOT HOLD, NOR IS IT TO BE INFERRED FROM ANYTHING CONTAINED
HEREIN, THAT ANY EMPLOYEE, OR THE UNION, MAY REFUSE TO OBEY WITH
IMPUNITY, OR COUNTERMAND, ANY LAWFUL ORDER OF RESPONDENT. BUT IN THIS
CASE THERE WAS NO ORDER OR COMMAND AND RESPONDENT HAS DISCLAIMED ANY
IMPERATIVE REQUEST WHICH, IN THE MILITARY, MIGHT MAKE A "REQUEST" OF THE
COMMANDING OFFICER AN ORDER.
ACCORDINGLY, HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN
CONDUCT IN VIOLATION OF SEC. 16(A)(1) OF THE STATUTE, IT IS RECOMMENDED
THAT THE AUTHORITY ADOPT THE FOLLOWING:
ORDER
PURSUANT TO SEC. 2423.29 OF THE REGULATIONS, 5 C.F.R. 2424.29, AND
SEC 18 OF THE STATUTE 5 U.S.C. 7118, THE AUTHORITY HEREBY ORDERS THAT
THE BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANBURY,
CONNECTICUT, SHALL"
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
OTHERWISE, CLIFFORD
S. STEENHOFF, DELORES J. CAUL, KAY TOLWORTHY, OR ANY OTHER EMPLOYEE,
FROM EXERCISING THE RIGHT
TO ASSIST AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF
PRISON LOCALS C-33, LOCAL
1661, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION, BY WRITING, OR
PARTICIPATING IN THE WRITING,
OF UNION PUBLICATIONS, INCLUDING LOCAL 1661'S NEWSLETTER, PURSUANT TO
THE PROVISIONS OF
SEC. 16(E) OF THE STATUTE, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL.
(B) STATING IN ANY MANNER TO MR. CLIFFORD S. STEENHOFF, OR TO ANY
OTHER UNION OFFICER, THAT
UNION OFFICERS MAY NOT COMMUNICATE WITH MEMBERS OF THE BARGAINING
UNIT CONCERNING MANAGEMENT
DECISIONS.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE
IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE
(A) POST AT ITS FACILITIES AT DANBURY, CONNECTICUT, COPIES OF THE
ATTACHED NOTICE OR FORMS
TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE
WARDEN AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE WARDEN SHALL TAKE REASONABLE STEPS TO
INSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SEC. 2423.30 OF THE REGULATIONS, NOTIFY THE REGIONAL
DIRECTOR OF THE
FEDERAL LABOR RELATIONS AUTHORITY FOR REGION 1, WHOSE ADDRESS IS:
441 STUART STREET, 9TH
FLOOR, BOSTON, MASSACHUSETTS 02116, IN WRITING, WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER, AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
RONALD L. BROWN, ESQUIRE
MS. MARTHA JORDAN
FOR THE RESPONDENT
GERARD M. GREENE, ESQUIRE
ON BRIEF: RICHARD D. ZAIGER, ESQUIRE
FOR THE GENERAL COUNSEL
MR. CLIFFORD S. STEENHOFF
FOR THE CHARGING PARTY
APPENDIX 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
OTHERWISE, CLIFFORD S. STEENHOFF, DELORES J. CAUL, KAY TOLWORTHY, OR ANY
OTHER EMPLOYEE, FROM EXERCISING THE RIGHT TO ASSIST AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, COUNCIL OF PRISON LOCAL C-33, LOCAL 1661,
AFL-CIO, OR ANY OTHER LABOR ORGANIZATION, BY WRITING, OR PARTICIPATING
IN THE WRITING, OF UNION PUBLICATIONS, INCLUDING LOCAL 1661'S
NEWSLETTER, PURSUANT TO THE PROVISIONS OF SEC. 16 (E) OF THE STATUTE,
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT STATE IN ANY MANNER TO MR. CLIFFORD S. STEENHOFF, OR TO
ANY OTHER UNION OFFICER, THAT UNION OFFICERS MAY NOT COMMUNICATE WITH
MEMBERS OF THE BARGAINING UNIT CONCERNING MANAGEMENT DECISIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER THE STATUTE.
. . . (AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 1, WHOSE
ADDRESS IS: 441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS 02116,
AND WHOSE TELEPHONE NUMBER IS: (617) 223-0920. 770801 0000570
19 FLRA-ALJ; CASE NO. 4-CA-20184 OCTOBER 27, 1982
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER,
DUBLIN, GEORGIA, RESPONDENT AND JIMMY L. UNDERWOOD, AN INDIVIDUAL,
CHARGING PARTY
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.SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980 AND VOL. 46,
NO. 154, AUGUST 11, 1981, 5 C.F.R.CHAPTER XIV, PART 2411, ET SEQ.
PURSUANT TO A CHARGE FILED ON FEBRUARY 19, 1982, BY JIMMY L.
UNDERWOOD, AND INDIVIDUAL, A COMPLAINT AND NOTICE OF HEARING WAS ISSUED
ON JULY 14, 1982, BY THE REGIONAL DIRECTOR FOR REGION IV, FEDERAL LABOR
RELATIONS AUTHORITY, ATLANTA, GEORGIA. THE COMPLAINT ALLEGES THAT THE
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER, DUBLIN,
GEORGIA (HEREINAFTER CALLED THE RESPONDENT OR VA), VIOLATED SECTIONS
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
ITS ACTIONS IN FAILING AND REFUSING TO TAKE CERTAIN ACTIONS REQUIRED BY
AN ARBITRATOR'S AWARD, TO WHICH NO EXCEPTIONS WERE FILED.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 16, 1982, IN
ATLANTA, GEORGIA. 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 RESPONDENT, THE GENERAL
COUNSEL, AND THE CHARGING PARTY, SUBMITTED POST HEARING BRIEFS WHICH
HAVE BEEN DULY CONSIDERED. /1/
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 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1985
(HEREINAFTER CALLED THE UNION), IS THE EXCLUSIVE REPRESENTATIVE, WITH
CERTAIN SPECIFIED EXCEPTIONS, OF ALL RESPONDENT'S NON-PROFESSIONAL,
NON-SUPERVISORY EMPLOYEES AT THE VETERANS MEDICAL CENTER AND VETERANS
CANTEEN SERVICE, LOCATED IN DUBLIN, GEORGIA.
THE UNION AND THE RESPONDENT ARE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT DATED AUGUST 24, 1977, WHICH CONTAINS A MERIT PROMOTION PLAN.
THE PERTINENT SECTIONS OF THE MERIT PROMOTION PLAN READ AS FOLLOWS:
ARTICLE 24-- SECTION (C) POLICY
(4) DISCRIMINATION: ACTIONS UNDER THIS POLICY WILL BE TAKEN WITHOUT
DISCRIMINATION FOR ANY
REASON SUCH AS RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, POLITICS,
MARITAL STATUS, PHYSICAL
HANDICAP, AGE, MEMBERSHIP OR NON-MEMBERSHIP IN AN EMPLOYEE
ORGANIZATION, OR ANY OTHER
NON-MERIT FACTOR.
(6) PRE-SELECTION: THE PROCEDURES IN THIS PLAN ARE DESIGNED TO
PREVENT THE PRE-SELECTION
OF EMPLOYEES FOR PROMOTION.
(7) EMPLOYEE RELEASE: EMPLOYEES SELECTED FOR PROMOTION UNDER THIS
PLAN WILL BE PROMOTED ON
THE FIRST DAY OF THE PAY PERIOD NEST FOLLOWING THEIR SELECTION.
WHERE CIRCUMSTANCES SO
JUSTIFY AN EMPLOYEE MAY BE DETAILED TO HIS FORMER POSITION AND
RELEASED TO HIS NEW ASSIGNMENT
AT A DATE MUTUALLY AGREEABLE TO BOTH THE LOSING AND GAINING SERVICES.
IN NO CASE WILL AN
EMPLOYEE BE DENIED SELECTION ON THE BASIS OF THE DIFFICULTY IN
REPLACING HIM.
ARTICLE 24-- SECTION (J) SELECTION
(1) THE SELECTING OFFICIALS WILL, IN NO CASE, BE BELOW THE SERVICE
CHIEF LEVEL.
(2) IF A POSITION IF FILLED BY PROMOTION, FINAL SELECTION MUST BE
MADE FROM AMONG
APPLICANTS CERTIFIED FOR CONSIDERATION, UNLESS THE POSITION IS FILLED
BY SOME OTHER SELECTION
PROCESS. ALL CANDIDATES FROM THE STATION ON THE CERTIFICATE WILL BE
INTERVIEWED BY THE
SELECTING OFFICIAL.
(A) SINCE THE SELECTING OFFICIAL IS RESPONSIBLE FOR THE EFFICIENT
OPERATION OF HIS SERVICE,
IT IS HIS PREROGATIVE TO SELECT THE EMPLOYEE HE FEELS CAN BEST DO THE
JOB.
(B) OFFICIAL PERSONNEL FOLDERS AND ALL OTHER PERTINENT RECORDS WILL
BE AVAILABLE TO THE
SELECTING OFFICIAL.
(C) SELECTIONS MADE UNDER THE PROMOTION PLAN WILL BE PUBLICIZED AND
ALL APPLICANTS WILL BE
INFORMED OF THE ACTION TAKEN BY THE PERSONNEL OFFICE.
ON OR ABOUT FEBRUARY 9, 1981, RESPONDENT POSTED A VACANCY
ANNOUNCEMENT FOR THE POSITION OF PEST CONTROLLER, WG 5026-6. FOLLOWING
THE CLOSING DATE OF THE ANNOUNCEMENT A PROMOTIONAL PANEL WAS FORMED,
WHICH AFTER INVESTIGATION OF THE 12 APPLICANTS' APPLICATIONS AND
PERSONNEL FILES, SELECTED 3 APPLICANTS AS THE MOST HIGHLY QUALIFIED.
MR. JIMMY UNDERWOOD, THE CHARGING PARTY HEREIN, AND MR. GARY AMERSON
WERE AMONG THE 3 CANDIDATES SELECTED AS THE MOST HIGHLY QUALIFIED FOR
THE VACANT POSITION OF PEST CONTROLLER.
THEREAFTER, THE THREE SUCCESSFUL APPLICANTS WERE INTERVIEWED BY TWO
MANAGEMENT REPRESENTATIVES WHO HELD LOWER GRADE POSITIONS WITH
RESPONDENT THAN THAT OF "SERVICE CHIEF". THE MANAGEMENT REPRESENTATIVES
RECOMMENDED TO MR. HENRY JAMBOR, CHIEF, BUILDING MANAGEMENT SERVICE, THE
NAME OF GARY AMERSON AS THE MOST QUALIFIED CANDIDATE FOR THE VACANT
POSITION. UPON THE BASIS OF THE RECOMMENDATION, MR. JAMBOR HIRED MR.
AMERSON WITHOUT ANY FURTHER INTERVIEW FOR THE PEST CONTROLLER POSITION.
ON JUNE 25, 1981, MR. UNDERWOOD FILED A GRIEVANCE ALLEGING THAT
RESPONDENT HAD VIOLATED ARTICLE 24, SECTIONS C(4), (6), AND (7) AND
SECTIONS J(1) AND (2) OF THE MERIT PROMOTION PLAN WITH RESPECT TO
FILLING THE VACANCY FOR PEST CONTROLLER.
SUBSEQUENTLY, ON AUGUST 15, 1981, THE MATTER WAS SUBMITTED TO HEARING
BEFORE ARBITRATOR HAROLD KNIGHT. THEREAFTER, IN OCTOBER 1981, ARBITRATOR
KNIGHT ISSUED HIS DECISION WHEREIN HE FOUND THAT THE RESPONDENT HAD
VIOLATED ARTICLE 24, SECTIONS J(1) AND (2) OF THE MERIT PROMOTION PLAN
BY HAVING THE INTERVIEWS AND SELECTION MADE BY MANAGEMENT OFFICIALS
BENEATH THE RANK OF "SERVICE CHIEF". THE ARBITRATOR FURTHER FOUND THAT
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE ALLEGATIONS OF THE
GRIEVANCE CONCERNING VIOLATIONS OF ARTICLE 24, SECTIONS C(4), (6), AND
(7). THUS, UNDER THE CAPTION OF "AWARD" THE ARBITRATOR STATED AS
FOLLOWS:
THE GRIEVANCE SHALL BE DENIED AS IT RELATES TO ARTICLE 24, SECTIONS
C(4), (6), AND
(7). THE GRIEVANCE WILL BE SUSTAINED AND PERMITTED AS IT RELATES TO
J(1) AND (2). THE
PROMOTION GRANTED TO GARY AMERSON SHOULD BE VOIDED AND THE VACANCY
DECLARED OPEN AND THE
PROCEDURE FOLLOWED AS CALLED FOR IN THE CONTRACT.
FOLLOWING THE ISSUANCE OF THE ARBITRATOR'S AWARD, RESPONDENT
CONSIDERED THE MATTER, DECIDED NOT TO APPEAL AND SUBSEQUENTLY RESEARCHED
THE MATTER FOR PURPOSES ACHIEVING COMPLIANCE WITH THE AWARD.
RESPONDENT'S RESEARCH UNCOVERED FPM BULLETIN 335-22 WHICH ALLOWS AN
AGENCY TO CORRECT A PROCEDURAL VIOLATION OF A PROMOTION PLAN BY GOING
BACK ONLY TO THE POINT OF INFRACTION AND PROCEEDING THEREFROM TO
REPROCESS THE VACANCY ANNOUNCEMENT TO THE FINAL POINT OF SELECTION. THE
FPM BULLETIN ALLOWED A PROMOTION PLAN PROCEDURAL DEFECT TO BE CORRECTED
IN THIS MANNER IF THE EMPLOYEE WHO HAD BEEN SUCCESSFULLY SELECTED WAS
OTHERWISE QUALIFIED TO FILL THE VACANCY.
IN LINE WITH ITS INTERPRETATION OF THE FPM BULLETIN, RESPONDENT ON
NOVEMBER 20, 1981 GAVE MR. AMERSON A LETTER WHEREIN HE WAS INFORMED THAT
RESPONDENT PROPOSED TO REMOVE HIM FROM THE POSITION OF PEST CONTROLLER
DUE TO THE ARBITRATOR'S AWARD. THE LETTER GAVE MR. AMERSON UNTIL
DECEMBER 1, 1981, TO APPEAL OR OBJECT TO THE PROPOSED PERSONNEL ACTION
WHICH WOULD RESULT IN A REDUCTION IN GRADE AND PAY.
ON OR ABOUT NOVEMBER 19, 1980, MR. RICHARD MONTGOMERY, RESPONDENT'S
CHIEF PERSONNEL SERVICE, SENT MR. JAMBOR, CHIEF BUILDING MANAGEMENT
SERVICE, A LETTER DIRECTING HIM TO PERSONALLY CONDUCT INTERVIEWS OF THE
CANDIDATES FOR THE POSITION OF PEST CONTROLLER. THE LETTER WENT ON TO
OUTLINE HOW THE INTERVIEWS SHOULD BE CONDUCTED.
ON OR ABOUT NOVEMBER 20, 1981, MR. MONTGOMERY SENT A LETTER TO MR.
DOMINEY, AFGE LOCAL 1985 PRESIDENT, ADVISING HIM THAT RESPONDENT WAS NOT
GOING TO APPEAL THE ARBITRATOR'S AWARD AND SETTING FORTH THE PROCEDURES
RESPONDENT INTENDED TO FOLLOW IN IMPLEMENTING THE AWARD.
ON OR ABOUT NOVEMBER 23, 1981, MR. JAMBOR WAS PROVIDED WITH A
PROMOTION CERTIFICATE FOR THE POSITION OF PEST CONTROLLER. THEREAFTER,
BETWEEN NOVEMBER 23 AND NOVEMBER 27, 1981, MR. JAMBOR CONDUCTED
INTERVIEWS OF THE THREE EMPLOYEES ON THE PROMOTION CERTIFICATE. THE
THREE EMPLOYEES APPEARING ON THE CERTIFICATE WERE THE SAME EMPLOYEES WHO
HAD BEEN ON THE ORIGINAL CERTIFICATE.
ON OR ABOUT NOVEMBER 27, 1981, MR. JAMBOR RETURNED THE PROMOTION
CERTIFICATE WITH A NOTATION THAT HE HAD SELECTED MR. AMERSON FOR THE
POSITION OF PEST CONTROLLER. SUBSEQUENTLY, ON OR ABOUT NOVEMBER 30,
1981, MR. AMERSON WAS NOTIFIED BY LETTER THAT HE HAD BEEN SELECTED AND
MR. UNDERWOOD WAS NOTIFIED THAT HE HAD NOT BEEN SELECTED FOR THE
POSITION OF PEST CONTROLLER. SEVERAL DAYS LATER, ON NOVEMBER 30, 1981,
RESPONDENT SENT A LETTER TO MR. AMERSON NOTIFYING HIM THAT THE PROPOSED
ACTION OF NOVEMBER 20, 1981, TO REMOVE HIM FROM THE POSITION OF PEST
CONTROLLER WAS CANCELLED.
ON OR ABOUT JANUARY 14, 1982, RESPONDENT'S REPRESENTATIVES MET WITH
VARIOUS REPRESENTATIVES OF THE UNION FOR PURPOSES OF DISCUSSING
RESPONDENT'S COMPLIANCE WITH THE ARBITRATOR'S AWARD. AT THIS MEETING THE
UNION TOOK THE POSITION THAT RESPONDENT HAD NOT COMPLIED WITH THE AWARD
"BECAUSE THE POSITION OF PEST CONTROLLER HAD NOT BEEN VACATED, AND THE
PROCEDURE FOR PROMOTION FOLLOWED AS OUTLINED IN THE COLLECTIVE
BARGAINING AGREEMENT".
WITH RESPECT TO PROPER PROCEDURE TO BE FOLLOWED WHEN THERE IS A
PROCEDURAL VIOLATION OF A PROMOTION PLAN, MR. NOVIS POWERS, ASSISTANT
CHIEF OF THE AGENCY COMPLIANCE AND EVALUATION DIVISION, OF THE ATLANTA,
GEORGIA, REGIONAL OFFICE OF OPM, WHO WAS RECOGNIZED AS AN EXPERT ON OPM
MATTERS, TESTIFIED THAT OPM DOES NOT USE THE TERM "VOID" WHEN IT ORDERS
THE "CANCELLATION" OF A MERIT PROMOTION. IF "VOID" WAS MEANT TO CANCEL
THE MERIT PROMOTION ACTION ACCORDED MR. AMERSON, ACCORDING TO MR.
POWERS, RESPONDENT'S ACTION IN GOING BACK ONLY TO THE POINT OF
INFRACTION, DID NOT CANCEL THE MERIT PROMOTION. FURTHER ACCORDING TO MR.
POWERS THE POSITION OF PEST CONTROLLER WAS NOT DECLARED OPEN SINCE "AN
ANNOUNCEMENT OF THE VACANCY IS NORMALLY THE PROCEDURE FOR DECLARING A
VACANCY OPEN." MR. POWERS FURTHER TESTIFIED THAT THE PROCEDURE FOLLOWED
BY THE RESPONDENT IN ATTEMPTING TO COMPLY WITH THE AWARD OF THE
ARBITRATOR, I.E. GOING BACK ONLY TO THE POINT OF INFRACTION OF THE
PROMOTION PLAN, WAS AN ACCEPTABLE PROCEDURE WHICH COMPLIED WITH EXISTING
REGULATIONS. THE OTHER ACCEPTABLE PROCEDURE, ACCORDING TO MR. POWERS,
WOULD BE TO CANCEL THE ENTIRE ACTION AND START OVER FROM THE BEGINNING,
WHICH WOULD INCLUDE POSTING THE JOB VACANCY.
DISCUSSION AND CONCLUSIONS
THE SOLE ISSUE TO BE DECIDED HEREIN IS WHETHER OR NOT THE RESPONDENT
COMPLIED WITH THE DECISION OF THE ARBITRATOR, TO WHICH NO EXCEPTIONS
WERE TAKEN. /2/
RESPONDENT URGES DISMISSAL OF THE COMPLAINT ON THE GROUND THAT IT DID
COMPLY WITH THE ARBITRATOR'S AWARD. IN SUPPORT OF ITS POSITION,
RESPONDENT RELIES ON FPM BULLETIN 335-22 WHICH ALLOWS AN AGENCY TO
CORRECT A PROCEDURAL VIOLATION OF A PROMOTION PLAN BY GOING BACK ONLY TO
THE POINT OF INFRACTION AND PROCEEDING THEREFROM TO CORRECTLY REPROCESS
THE VACANCY ANNOUNCEMENT TO THE FINAL POINT OF SELECTION. HAVING DONE
SO, RESPONDENT CLAIMS THAT IT DID COMPLY WITH THE ARBITRATOR'S AWARD.
THE GENERAL COUNSEL AND THE CHARGING PARTY, ON THE OTHER HAND, TAKE
THE POSITION THAT THE RESPONDENT DID NOT COMPLY WITH THE ARBITRATOR'S
AWARD IN THAT RESPONDENT DID NOT VOID THE PROMOTION AND DECLARE THE
VACANCY OPEN. IN SUPPORT OF THEIR POSITION, THE GENERAL COUNSEL AND
CHARGING PARTY RELY ON THE TESTIMONY OF MR. POWERS FROM OPM, WHO,
WITHOUT OBJECTION, WAS RECOGNIZED AS AN EXPERT WITNESS.
CONTRARY TO THE GENERAL COUNSEL, I FIND THAT THE PROMOTION WAS IN
FACT VOIDED BY RESPONDENT'S ACTION IN GIVING THE NOVEMBER 20, 1981,
LETTER TO MR. AMERSON. SUCH LETTER WAS THE FIRST STEP IN THE PROCESS
LEADING TO HIS REMOVAL.
HOWEVER, IN AGREEMENT WITH THE GENERAL COUNSEL AND CHARGING PARTY, I
FIND, BASED PRIMARILY ON THE TESTIMONY OF MR. POWERS, THE EXPERT ON
PERSONNEL MATTERS FROM OPM, THAT THE VACANCY WAS NOT DECLARED OPEN.
THUS, ACCORDING TO MR. POWERS, THE ONLY WAY A VACANCY CAN BE DECLARED
OPEN IS BY POSTING THE POSITION AND SOLICITING APPLICANTS THEREFOR.
ADMITTEDLY, THIS ACTION WAS NOT TAKEN. RATHER, RESPONDENT ONLY WENT BACK
TO THE POINT OF INFRACTION AND RESUBMITTED THE THREE NAMES FROM THE
ORIGINAL CERTIFICATE OF ELIGIBILITY TO THE CHIEF OF BUILDING MANAGEMENT
SERVICES FOR INTERVIEW. IN SO DOING, RESPONDENT DID NOT DECLARE THE
POSITION OPEN AS REQUIRED BY THE ARBITRATOR'S AWARD.
WHILE I RECOGNIZE THAT THE FPM REGULATIONS ALLOW FOR ALTERNATIVE
PROCEDURES TO CORRECT VIOLATIONS OF PROMOTION PLANS, THE ISSUE IS NOT
WHETHER THE RESPONDENT COMPLIED WITH FPM PROCEDURES, BUT WHETHER THE
ORDERS SET FORTH IN THE ARBITRATOR'S DECISION WERE COMPLIED WITH. THE
ARBITRATOR DID NOT MERELY ORDER THE RESPONDENT TO CORRECT THE VIOLATION
OF THE PROMOTION PLAN, BUT GAVE INSTRUCTIONS HOW SUCH CORRECTIONS WERE
TO BE MADE, NAMELY, VOIDING THE PROMOTION AND DECLARING THE VACANCY
OPEN. INASMUCH AS THE VACANCY WAS NOT DECLARED OPEN SINCE IT WAS NOT
REPOSTED, RESPONDENT FAILED TO COMPLY WITH THE ARBITRATOR'S AWARD AND
THEREBY VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE. U.S. ARMY
HEALTH CLINIC, FORT RITCHIE, MARYLAND, 9 FLRA NO. 133. /3/
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (8) OF THE STATUTE, I RECOMMEND 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
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER, DUBLIN,
GEORGIA, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO COMPLY WITH THE OCTOBER 1981, AWARD OF
ARBITRATOR HAROLD
P. KNIGHT BY FAILING TO DECLARE THE VACANCY FOR THE POSITION OF PEST
CONTROLLER, WG 5026-6
OPEN AND THEREAFTER ISSUING AND POSTING AN ANNOUNCEMENT OF SUCH
VACANCY.
(B) IN ANY LIKE OR RELATED MANNER, FAILING OR REFUSING TO COMPLY WITH
ANY PROVISIONS OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF ANY RIGHT UNDER 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) COMPLY WITH THE OCTOBER 1981 AWARD OF ARBITRATOR HAROLD P.
KNIGHT BY DECLARING THE
VACANCY FOR THE POSITION OF PEST CONTROLLER, WG 5026-6 TO BE OPEN AND
THEREAFTER ISSUING AND
POSTING AN APPROPRIATE ANNOUNCEMENT OF SUCH VACANCY PRIOR TO
PROCEEDING TO FOLLOW EACH AND
EVERY STEP OF THE MERIT PROMOTION PLAN CONTAINED IN THE COLLECTIVE
BARGAINING AGREEMENT IN
EFFECT AS OF FEBRUARY 1981.
(B) POST AT ITS FACILITIES 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
DIRECTOR OF THE VETERANS ADMINISTRATION MEDICAL CENTER, DUBLIN,
GEORGIA, AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE 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.
/1/ GENERAL COUNSEL'S MOTION TO CORRECT TRANSCRIPT BY SUBSTITUTING
"NO" FOR "YES" ON PAGE 31, LINE 5 OF THE TRANSCRIPT IS HEREBY GRANTED.
/2/ TO THE EXTENT THAT RESPONDENT TAKES THE POSITION THAT THE
ARBITRATOR'S AWARD WAS ILLEGAL OR CONTRARY TO LAW SINCE IT DID NOT
COMPLY WITH CERTAIN PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, AND
ASIDE FROM THE QUESTIONABLE VALIDITY IN THIS RESPECT OF RESPONDENT'S
ARGUMENT, I FIND IN AGREEMENT WITH THE DECISION OF JUDGE HEIFETZ IN
UNITED STATES AIR FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON
AFB, OHIO, CASE NOS. 5-CA-455 AND 842, OALJ-81-123 (JUNE 22, 1981), AND
FOR THE REASONS STATED THEREIN, THAT THE MERITS OF AN ARBITRATION AWARD
ARE NOT LITIGABLE IN AN UNFAIR LABOR PROCEEDING.
/3/ IN VIEW OF THE ABOVE FINDINGS, I DEEM IT UNNECESSARY TO DETERMINE
WHETHER RESPONDENT'S ACTION WAS ALSO VIOLATIVE OF SECTION 7116(A)(5) OF
THE STATUTE. SEE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND, SUPRA,
WHEREIN THE AUTHORITY REACHED A SIMILAR CONCLUSION.
H. DEAN MINOR, ESQUIRE
FOR THE RESPONDENT
BRENDA S. GREEN, ESQUIRE
FOR THE GENERAL COUNSEL
BRIAN SPEARS, ESQUIRE
FOR THE CHARGING PARTY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO 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 FAIL OR REFUSE TO COMPLY WITH THE OCTOBER 1981 AWARD OF
ARBITRATOR HAROLD P. KNIGHT BY FAILING TO DECLARE THE VACANCY FOR THE
POSITION OF PEST CONTROLLER, WG 5026-6 OPEN AND THEREAFTER ISSUING AND
POSTING AN ANNOUNCEMENT OF SUCH VACANCY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY
WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY
WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL COMPLY WITH THE OCTOBER 1981 AWARD OF ARBITRATOR HAROLD P.
KNIGHT BY DECLARING THE VACANCY FOR THE POSITION OF PEST CONTROLLER, WG
5026-6 TO BE OPEN AND THEREAFTER ISSUING AND POSTING AN APPROPRIATE
ANNOUNCEMENT OF SUCH VACANCY PRIOR TO PROCEEDING TO FOLLOW EACH AND
EVERY STEP OF THE MERIT PROMOTION PLAN CONTAINED IN THE COLLECTIVE
BARGAINING AGREEMENT IN EFFECT AS OF FEBRUARY 1981.
. . . (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 4, WHOSE
ADDRESS IS: 1776 PEACHTREE STREET, NW., SUITE 501, NORTH WING, ATLANTA,
GA 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324. 770801 0000560
19 FLRA-ALJ; CASE NO. 4-CA-893 JULY 29, 1982
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHEAST
REGION, ATLANTA, GEORGIA; DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, SOUTHEAST REGIONAL OFFICE OF INSPECTION, ATLANTA, GEORGIA;
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE,
FLORIDA, RESPONDENT AND NATIONAL TREASURY EMPLOYEES UNION, CHARGING
PARTY
BEFORE: FRANCIS E. DOWD, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, HEREIN REFERRED TO AS THE STATUTE, 92 STAT. 1191, 5
U.S.C. 7101, ET SEQ. IT WAS INSTITUTED BY THE REGIONAL DIRECTOR OF THE
FOURTH REGION OF THE FEDERAL LABOR RELATIONS AUTHORITY BY THE ISSUANCE
OF A COMPLAINT AND NOTICE OF HEARING DATED JUNE 11, 1981. THE COMPLAINT
WAS ISSUED FOLLOWING AN INVESTIGATION OF AN UNFAIR LABOR PRACTICE CHARGE
FILED ON APRIL 21, 1981 BY NATIONAL TREASURY EMPLOYEES UNION, HEREIN
REFERRED TO AS THE CHARGING PARTY, UNION OR NTEU. THE COMPLAINT ALLEGES
THAT DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHEAST
REGION, ATLANTA, GEORGIA; DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, SOUTHEAST REGIONAL OFFICE OF INSPECTION, ATLANTA, GEORGIA;
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE,
FLORIDA, HEREIN REFERRED TO AS RESPONDENT OR IRS, VIOLATED SECTION
7116(A)(1) OF THE STATUTE BY THE CONDUCT OF ITS AGENT, GILLING, IN
CONNECTION WITH THE INVESTIGATORY INTERVIEWS OF EMPLOYEES STELLA TARASKA
AND JOSEPHINE RODRIQUEZ ON OR ABOUT JANUARY 23, 1981 AT RESPONDENT'S
FORT LAUDERDALE, FLORIDA OFFICE. SPECIFICALLY, THE COMPLAINT ALLEGES
THAT GILLING "FORCEFULLY ADJURED SAID EMPLOYEES TO RELINQUISH THEIR
RIGHT TO BE REPRESENTED BY AN AGENT OF THE UNION AT THE ABOVE-MENTIONED
INTERVIEWS." RESPONDENT DENIES THAT THE EMPLOYEES WERE COERCED AND
HARASSED BY GILLING.
A HEARING WAS HELD IN FORT LAUDERDALE, FLORIDA AT WHICH THE PARTIES
WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO ADDUCE
EVIDENCE AND CALL, EXAMINE, AND CROSS-EXAMINE WITNESSES AND ARGUE
ORALLY. BRIEFS FILED BY THE GENERAL COUNSEL, RESPONDENT, AND CHARGING
PARTY HAVE BEEN DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING MY
EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, AND
FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
FINDINGS OF FACT
1. THE UNION IS THE EXCLUSIVE REPRESENTATIVE FOR THE PURPOSE OF
COLLECTIVE BARGAINING FOR ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES
OF THE FORT LAUDERDALE, FLORIDA OFFICE OF RESPONDENT JACKSONVILLE
DISTRICT. THE JACKSONVILLE DISTRICT OFFICE IS AN ORGANIZATIONAL
COMPONENT AND AN AGENT OF RESPONDENT SOUTHEAST REGION. RESPONDENT
SOUTHEAST REGIONAL OFFICE OF INSPECTION IS AN AGENT OF BOTH RESPONDENTS,
JACKSONVILLE AND SOUTHEAST REGION.
2. THIS CASE INVOLVES TWO REVENUE REPRESENTATIVES AT RESPONDENT'S
FORT LAUDERDALE OFFICE WHOSE DUTIES INCLUDE RECEIVING CASH PAYMENTS FROM
TAXPAYERS. A RECEIPT IS GIVEN TO THE TAXPAYER AND THE CASH IS SUPPOSED
TO BE PROMPTLY CONVERTED TO A MONEY ORDER OR CASHIER'S CHECK BY THE
REVENUE REPRESENTATIVE. SECTION 226.1 OF THE CODE OF CONDUCT WHICH
INTERNAL REVENUE SERVICE EMPLOYEES ARE EXPECTED TO FOLLOW PROVIDES AS
FOLLOWS:
ACCOUNTABILITY FOR MONEY AND PROPERTY.
ANY MONEY, PROPERTY OR OTHER THING OF VALUE RECEIVED BY OR COMING
INTO THE CUSTODY OF AN
EMPLOYEE IN CONNECTION WITH THE DISCHARGE OF DUTIES RELATING TO
ENFORCEMENT OF INTERNAL
REVENUE LAWS MUST BE ACCOUNTED FOR, DEPOSITED OR OTHERWISE DISPOSED
OF IN ACCORD WITH
ESTABLISHED PROCEDURES. SEVERE DISCIPLINARY ACTION AND CRIMINAL
PROSECUTION CAN RESULT FROM
EMPLOYEES FAILURE TO FOLLOW THESE PROCEDURES."
3. ON APPROXIMATELY JANUARY 21, 1981, STELLA TARASKA, AN IRS REVENUE
REPRESENTATIVE IN THE FORT LAUDERDALE, FLORIDA OFFICE RECEIVED FROM A
TAXPAYER A MONEY ORDER PAYABLE TO THE IRS. RECEIPT OF MONEY FROM
TAXPAYERS WAS A ROUTINE PART OF TARASKA'S DUTIES, AND SHE KNEW THAT SHE
WAS RESPONSIBLE FOR THE MONEY ORDER UNTIL SHE COMPLETED A REPORT AND
SENT THE MONEY TO HEADQUARTERS IN JACKSONVILLE, FLORIDA. AFTER RECEIPT
OF THE MONEY ORDER TARASKA PLACED IT IN HER UNLOCKED DESK AND WENT ABOUT
HER DUTIES, OFTEN LEAVING HER DESK. AFTER LUNCH, SHE DISCOVERED THAT THE
MONEY ORDER WAS MISSING AND REPORTED THIS TO HER ACTING SUPERVISOR
JEANETTE YOUNG. TARASKA ALSO ALERTED HER FELLOW REVENUE REPRESENTATIVES,
JOSEPHINE RODRIQUEZ, ANNE MALANOWSKI, AND JOANN WILLS, WHO SAT IN CLOSE
PROXIMITY TO HER IN THE LARGE, OPEN-SPACE TYPE OFFICE, AND A SEARCH
ENSUED. THE MONEY ORDER WAS FINALLY FOUND, BUT NOT IN THE SAME PLACE
ORIGINALLY PLACED BY TARASKA.
4. LATER THAT SAME AFTERNOON, REVENUE REPRESENTATIVE JOSEPHINE
RODRIQUEZ NOTED THAT SOME FIFTY DOLLARS ($50.00) IN CASH WAS MISSING
FROM HER DESK, WHICH WAS NEAR TARASKA'S DESK (TR. 82). AGAIN, THE WOMEN
IN THE AREA SEARCHED FOR THE MISSING MONEY, BUT THE SEARCH WAS NOT
FRUITFUL (TR. 84). SINCE IT WAS LATE IN THE AFTERNOON, RODRIQUEZ DECIDED
TO REPORT THE INCIDENT EARLY THE NEXT MORNING WHEN HER REGULAR
SUPERVISOR WOULD BE ON DUTY.
5. THE NEXT DAY, FOLLOWING RODRIQUEZ'S REPORT, SUPERVISOR LARRY BATT
TELEPHONICALLY REPORTED BOTH INCIDENTS-- THE MONEY ORDER AND THE MISSING
CASH-- TO THE INSPECTIONS OFFICE IN MIAMI, FLORIDA. BATT'S CALL WAS
RECEIVED BY INSPECTOR JAMES GILLING WHO TESTIFIED THAT HE DECIDED TO
DRIVE UP TO FORT LAUDERDALE AND INTERVIEW THE EMPLOYEES THAT SAME
AFTERNOON. /1/
6. THE FUNCTION OF RESPONDENT SOUTHEAST REGIONAL OFFICE OF INSPECTION
IS TO PROVIDE INVESTIGATORY SERVICES TO THE VARIOUS OFFICES OF THE
INTERNAL REVENUE SERVICE WHICH AMOUNTS TO PROBING INTO AND REPORTING,
INTER ALIA, IRS EMPLOYEE MISCONDUCT AS WELL AS POSSIBLE EMPLOYEE
STATUTORY VIOLATIONS. INSPECTORS HAVE A DUTY TO INCLUDE FINDINGS OF
MISCONDUCT IN THEIR REPORTS. THESE REPORTS MAY BE THE BASIS FOR FURTHER
INVESTIGATION OR, IN SOME CASES, FOR DISCIPLINARY ACTION.
7. EMPLOYEES ARE INSTRUCTED REGARDING THE FUNCTION OF THE INSPECTIONS
OFFICE AND ARE ALSO INFORMED VIA THE EMPLOYEES' CODE OF CONDUCT THAT IT
IS IMPERATIVE FOR EMPLOYEES TO COOPERATE WITH AN INVESTIGATION CONDUCTED
BY THE INSPECTION OFFICE. SECTION 217.1 OF THE CODE OF CONDUCT STATES AS
FOLLOWS:
RESPONDING TO QUESTIONS IN MATTERS OF OFFICIAL INTEREST.
WHEN DIRECTED TO DO SO BY INSPECTION OR OTHER COMPETENT TREASURY OF
REVENUE SERVICE
AUTHORITY, EMPLOYEES MUST TESTIFY OR RESPOND TO QUESTIONS IN MATTERS
OF OFFICIAL
INTEREST. EMPLOYEES MUST GIVE SUCH TESTIMONY, OR RESPOND TO QUESTIONS
UNDER OATH WHEN
REQUIRED OR REQUESTED TO DO SO.
GILLING TESTIFIED THAT FAILURE TO RESPOND COULD WARRANT DISCIPLINE
FOR INSUBORDINATION.
A. RESPONDENT'S EFFORTS TO MAKE STELLA TARASKA DISMISS HER UNION
REPRESENTATIVE
8. WHEN INSPECTOR GILLING ARRIVED AT THE FORT LAUDERDALE OFFICE AT
APPROXIMATELY 2:00 P.M., HE MET WITH SUPERVISOR BATT WHO TOLD HIM HE
COULD USE A CONFERENCE ROOM, ALSO REFERRED TO AS THE "BREAK ROOM", FOR
HIS INTERVIEWS. BATT FIRST SUMMONED EMPLOYEE TARASKA TO THE CONFERENCE
ROOM. HE TOLD HER THAT GILLING WAS FROM THE INSPECTION DIVISION. HE DID
NOT TELL HER THE PURPOSE OF THE INTERVIEW BUT SHE ASSUMED THAT IT
CONCERNED THE MONEY ORDER THAT HAD BEEN MISSING BUT THEN FOUND. ENROUTE
TO THE CONFERENCE ROOM, TARASKA ASKED UNION REPRESENTATIVE HARVEY KATZ,
WHO WORKED IN THE SAME GENERAL WORK AREA, TO ACCOMPANY HER. /2/ WHEN
THEY ARRIVED AT THE CONFERENCE ROOM, GILLING WAS ALONE AND SEATED AT A
DESK OR TABLE. GILLING SHOWED HER HIS CREDENTIALS, EXPLAINED THE PURPOSE
OF HIS VISIT, /3/ TOLD HER THIS WAS A "THIRD-PARTY INTERVIEW," AND
STATED THAT HE PREFERRED" THAT SHE ASK KATZ TO LEAVE. /4/ GILLING
HIMSELF ADMITS TELLING TARASKA IT WOULD NOT BE NECESSARY FOR HER TO HAVE
A UNION REPRESENTATIVES. TARASKA CREDIBLY TESTIFIED THAT SHE INFORMED
GILLING SHE WANTED KATZ TO REMAIN, EXPLAINING THAT SHE DID NOT KNOW WHAT
THE CONSEQUENCES WOULD BE. AT THIS POINT, THE INTERVIEW WAS NOT
TERMINATED. GILLING HIMSELF ADMITS (TR. 189) THAT HE CONTINUED TO
ATTEMPT TO CHANGE HER MIND BY FIRST PUTTING HER AT EASE AND TELLING HER
HE ONLY WANTED TO OBTAIN INFORMATION ABOUT THE MONEY ORDER AND THE
MISSING CASH. /5/ HE THEN REPEATED TWICE MORE HIS PREFERENCE THAT KATZ
BE DISMISSED BY HER. /6/ ALTHOUGH GILLING DID NOT YELL AT TARASKA, HIS
VOICE FLUCTUATED WHEN HE ASKED HER TO DISMISS KATZ (TR. 62). SHE
DESCRIBED HIS VOICE AS FIRM AND SAID HE SPOKE WITH AUTHORITY (TR. 63,
26). /7/ SHE STATED THAT GILLING WAS NOT DISCOURTEOUS TO HER. FINALLY,
GILLING ANNOUNCED THAT THE INTERVIEW WAS OVER, AND TARASKA LEFT THE ROOM
WITH KATZ. THIS MEETING LASTED ABOUT 20 MINUTES.
9. A LITTLE LATER THAT SAME AFTERNOON, TARASKA WAS SUMMONED TO THE
OFFICE OF HER SUPERVISOR, BATT, WHO INSTRUCTED HER TO READ SECTIONS 216
AND 217 OF THE CODE OF CONDUCT. ESSENTIALLY THESE SECTIONS INFORM
EMPLOYEES THAT THEY ARE "REQUIRED" TO DO, AND WHAT THEY "MUST" DO, AS
IRS EMPLOYEES IN CONNECTION WITH INVESTIGATIONS CONDUCTED BY INSPECTION.
TARASKA READ THE SECTIONS AND LEFT THE ROOM. A HALF HOUR LATER, BATT
CALLED HER BACK IN. TARASKA WENT BACK TO HER SUPERVISOR'S OFFICE
ACCOMPANIED BY KATZ AND DISCOVERED BOTH GILLING AND BATT IN THE OFFICE.
SHE WAS ASKED IF SHE UNDERSTOOD SECTION 217 OF THE CODE OF CONDUCT, AND
SHE REPLIED THAT SHE DID AND WOULD ANSWER ANY QUESTIONS IN THE PRESENCE
OF HER UNION REPRESENTATIVE. GILLING THEN ASKED BATT, THE EMPLOYEE'S
SUPERVISOR, TO MAKE A NOTE OF WHAT TARASKA HAD JUST SAID. TARASKA WAS
THEN DISMISSED WITH THE WORDS, "THE INTERVIEW IS OVER." THE MEETING ONLY
LASTED A FEW MINUTES.
B. RESPONDENT'S EFFORTS TO MAKE JOSEPHINE RODRIQUEZ DISMISS HER UNION
REPRESENTATIVE
10. GILLING FOLLOWED A SIMILAR ROUTINE WITH RODRIQUEZ. AFTER HIS
FIRST MEETING WITH TARASKA, HE MET WITH RODRIQUEZ. AFTER HIS SECOND
MEETING WITH TARASKA, HE AGAIN MET A SECOND TIME WITH RODRIQUEZ, THIS
TIME WITH HER SUPERVISOR PRESENT.
WHEN RODRIQUEZ WAS SUMMONED TO THE FIRST MEETING WITH GILLING SHE
BROUGHT UNION STEWARD KATZ WITH HER, AS HER REPRESENTATIVE. GILLING
INTRODUCED HIMSELF, SHOWED HIS CREDENTIALS, AND GAVE HER HIS CARD. HE
EXPLAINED THAT THE PURPOSE OF THE INTERVIEW WAS TO QUESTION HER ABOUT
THE MISSING MONEY, THAT HE WAS CONDUCTING AN "INQUIRY", AND THAT HER
UNION STEWARD WAS "NOT NECESSARY" AT THIS PARTICULAR TIME. HE THEN TOLD
HER THAT HIS JOB WAS TO INQUIRE, INVESTIGATE, AND SUBMIT A WRITTEN
REPORT TO HIGHER AUTHORITIES. SHE REPLIED THAT SHE STILL WANTED HER
UNION REPRESENTATIVE PRESENT BECAUSE SHE FEARED DISCIPLINARY ACTION. AT
THIS POINT, THE INTERVIEW WAS NOT TERMINATED BY GILLING.
GILLING THEN SHOWED HER HIS OFFICIAL CREDENTIALS (AGENCY EXH. NO. 8)
AND ASKED HER TO READ THE INSCRIPTION CONTAINED THEREON. SHE COMPLIED
WITH HIS ORDER. THE CREDENTIALS STATED THAT GILLING WAS AN INSPECTOR WHO
. . . IS AUTHORIZED TO INVESTIGATE MATTERS ARISING UNDER THE LAWS OF
THE UNITED STATES AND THE
REGULATIONS ADMINISTERED BY THE INTERNAL REVENUE SERVICE; INCLUDING
AUTHORITY TO EXECUTE AND SERVE SEARCH OR ARREST WARRANTS, TO SERVE
SUBPOENAS AND SUMMONSES, MAKE ARRESTS WITHOUT WARRANT, AND TO REQUIRE
AND RECEIVE INFORMATION RELATING TO SUCH LAWS AND REGULATIONS. ALL
OFFICERS AND EMPLOYEES OF THE INTERNAL REVENUE SERVICE WILL RENDER HIM
EVERY POSSIBLE ASSISTANCE AND WILL HOLD IN CONFIDENCE ALL COMMUNICATIONS
WITH HIM.
AFTER READING THE CREDENTIALS, RODRIQUEZ INFORMED GILLING SHE WANTED
KATZ TO REMAIN. GILLING THEN REMINDED HER THAT SHE WAS RESPONSIBLE AS AN
EMPLOYEE TO GIVE HIM WHATEVER INFORMATION SHE POSSESSED. HE THEN ASKED
HER TO READ SECTIONS 216 AND 217 OF THE CODE OF CONDUCT. ACCORDING TO
KATZ, SHE WAS VISIBLY UPSET AFTER READING THE CODE OF CONDUCT AND WHEN
GILLING AGAIN ASKED HER TO TELL KATZ TO LEAVE, RODRIQUEZ SAID TO KATZ,
"I DON'T WANT TO GET INTO TROUBLE. IF HE WANTS YOU TO LEAVE, THEN MAYBE
YOU SHOULD LEAVE." KATZ PROMPTLY ASKED GILLING WHETHER HE AND RODRIQUEZ
COULD TAKE A BREAK AT THIS TIME. GILLING PERMITTED THEM TO STEP OUTSIDE.
IT WAS DURING THIS RECESS THAT RODRIQUEZ TOLD KATZ SHE "JUST WANTED TO
GET THIS WHOLE THING OVER WITH" AND TELL GILLING EVERYTHING SHE KNEW TO
THE BEST OF HER KNOWLEDGE." HOWEVER, KATZ CONVINCED RODRIQUEZ THAT SHE
SHOULD NOT BE INTIMIDATED INTO GIVING UP HER RIGHT TO HAVE KATZ PRESENT
DURING ANY INTERVIEW. THEY BOTH RETURNED TO THE CONFERENCE ROOM.
THE CREDITED TESTIMONY OF HARVEY KATZ REVEALS THAT GILLING THEN TOLD
HER SHE WAS THE "VICTIM" HERE, THAT HE WANTED TO "HELP" HER, AND THAT
THERE'S "NO NEED FOR HIM (KATZ) TO BE HERE." GILLING AGAIN ASKED HER TO
"PLEASE ASK HIM TO LEAVE." SHE AGAIN REFUSED TO ACQUIESCE. ACCORDING TO
RODRIQUEZ, GILLING STATED THAT A REASON HE DIDN'T WANT KATZ PRESENT WAS
BECAUSE ANYONE IN THE BUILDING COULD BE UNDER INVESTIGATION (TR. 90, 91,
147, AGENCY EXH. NO. 5) AND THAT HE (KATZ) COULD BE A SUSPECT (TR. 147).
KATZ ASKED WHETHER HE WAS UNDER INVESTIGATION, BUT RECEIVED NO REPLY
(TR. 90). KATZ AND RODRIQUEZ LEFT THE CONFERENCE ROOM A SECOND TIME, AND
RODRIQUEZ TOLD KATZ THAT SHE WAS NERVOUS AND TIRED AND "IT JUST SEEMS
LIKE THEY DON'T WANT YOU IN THERE, AND I WANT YOU IN THERE BECAUSE I
DON'T KNOW WHAT MAY COME OF THIS." KATZ ENCOURAGED HER TO STAND FAST,
AND THEY AGAIN RETURNED TO THE CONFERENCE ROOM WHERE SHE AGAIN INFORMED
GILLING OF HER DECISION. GILLING THEN STATED THAT THIS "CONCLUDES THE
MEETING". HE GATHERED UP HIS PAPERS AND WALKED OUT. THE ENTIRE MEETING
TOOK CLOSE TO 30 MINUTES.
11. ABOUT A HALF-AN-HOUR LATER, RODRIQUEZ WAS CALLED INTO SUPERVISOR
BATT'S OFFICE AND INSTRUCTED TO READ SECTIONS 216 AND 217 OF THE CODE OF
CONDUCT. SINCE BATT WAS NOT PRESENT AT THE EARLIER MEETING, HE MAY NOT
HAVE KNOWN THAT GILLING HAD ALREADY SHOWN HER THE CODE OF CONDUCT. SHE
LEFT HIS OFFICE, RETURNED TO HER DESK, AND WAS AGAIN SUMMONED TO MR.
BATT'S OFFICE. SHE WAS ACCOMPANIED BY KATZ. MR. BATT WAS SEATED AND
GILLING WAS LEANING AGAINST A FILE CABINET. GILLING ASKED WHETHER SHE
UNDERSTOOD WHAT SHE HAD READ IN THE CODE OF CONDUCT. SHE REPLIED THAT
SHE UNDERSTOOD AND STILL WANTED HER UNION REPRESENTATIVE PRESENT.
GILLING TERMINATED THE MEETING AFTER A FEW MINUTES AND RODRIQUEZ
RETURNED TO HER OFFICE.
ACCORDING TO RODRIQUEZ, THE TONE OF GILLING'S VOICE CHANGED AS THE
ABOVE-DESCRIBED MEETINGS PROGRESSED. AT FIRST, HE WAS MILD AND
CONSERVATIVE. THEN, HE BECAME "PERTURBED, LIKE HE WAS MAD THAT I WASN'T
COOPERATING, BUT NOT REALLY MAD, JUST AGGRAVATED." HIS TONE OF VOICE WAS
EMPHATIC AND HE "KEPT REMINDING ME OF MY DUTIES AS AN EMPLOYEE, TO
REPORT ANYTHING TO INSPECTION." DURING THE SECOND MEETING IN BATT'S
OFFICE, GILLING APPEARED TO BE NERVOUS AND HIS MOVEMENTS WERE
DISTRACTING TO RODRIQUEZ. EARLIER, WHEN GILLING TOOK HIS CREDENTIALS
FROM HIS POCKET SHE OBSERVED HIS REVOLVER IN A HOLSTER BUT DID NOT
BELIEVE GILLING WAS INTENTIONALLY DISPLAYING THE REVOLVER TO HER.
C. SUMMARY
12. THE RELEVANT FACTS HEREIN CONCERN WHAT WAS SAID BY GILLING TO
TARASKA AND RODRIQUEZ, INCLUDING THE NUMBER OF TIMES HE ATTEMPTED TO
CAUSE THEM TO DISMISS THEIR UNION REPRESENTATIVE, THE TONE OF VOICE
EMPLOYED IN SPEAKING TO THESE EMPLOYEES, AND GILLING'S ENTIRE MANNER AND
CONDUCT DURING THE COURSE OF THESE MEETINGS.
THERE'S NO DISPUTE THAT GILLING MET TWICE EACH WITH TARASKA AND
RODRIQUEZ AND THAT HE ASKED THEM TO DISMISS THEIR UNION REPRESENTATIVE.
JAMES GILLING WAS NOT SPECIFICALLY ASKED TO CONFIRM OR DENY EACH AND
EVERY STATEMENT ATTRIBUTED TO HIM BY KATZ, TARASKA AND RODRIQUEZ.
THEREFORE, THEIR TESTIMONY IS IN LARGE MEASURE UNDENIED. TO THE EXTENT
THAT GILLING MAY HAVE CHARACTERIZED HIS OWN ACTIONS AND WORDS
DIFFERENTLY, THERE NEVERTHELESS REMAINS A SUBSTANTIAL SIMILARITY TO THE
TESTIMONY OF GENERAL COUNSEL'S WITNESSES. ACCORDINGLY, WHILE I BELIEVE
GILLING IS ESSENTIALLY AN HONEST INDIVIDUAL, I CANNOT ACCEPT HIS
SELF-SERVING EXPLANATIONS FOR HIS CONDUCT AND HIS ATTEMPT TO SHADE THE
FACTS SO AS TO PUT HIS OWN CONDUCT IN A MORE FAVORABLE LIGHT CONSISTENT
WITH RESPONDENT'S DEFENSE THAT HE CONDUCTED HIMSELF IN A COURTEOUS
MANNER USING NO FORCE OR COERCION TO ACHIEVE HIS INTENDED OBJECTIVES.
BASED UPON MY OBSERVATION OF THE DEMEANOR OF TARASKA, RODRIQUEZ AND
KATZ, AND PARTICULARLY NOTING THAT THEIR TESTIMONY WAS MUTUALLY
CORROBORATIVE I CREDIT THEIR TESTIMONY AS TO WHAT WAS SAID BY GILLING AT
THESE MEETINGS AND THE MANNER IN WHICH HE CONDUCTED HIMSELF.
ISSUES
WHETHER EMPLOYEES TARASKA AND RODRIQUEZ HAD A RIGHT TO UNION
REPRESENTATION PURSUANT TO SECTION 7114(A)(2)(B) AT THE MEETINGS WITH
GILLING IN JANUARY 1981. IF SO, DID GILLING - BY HIS CONDUCT AND
STATEMENTS-- INTERFERE WITH THESE EMPLOYEES' EXERCISE OF THEIR STATUTORY
RIGHTS.
DISCUSSION AND CONCLUSIONS OF LAW
A. SECTION 7114(A)(2)(B) (I) AND (II)
THIS SECTION OF THE STATUTE, TO THE EXTENT APPLICABLE TO THE INSTANT
CASE, PROVIDES AS FOLLOWS:
"(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) . . . -
(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF--
(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS REPRESENTATION."
THE LEGISLATIVE HISTORY /8/ OF THIS SECTION, WHICH IS PART OF TITLE
VII OF THE CIVIL SERVICE REFORM ACT OF 1978, CLEARLY DEMONSTRATES THAT
ITS PURPOSE WAS TO BRING TO FEDERAL SECTOR EMPLOYEES THE SAME RIGHTS
ACCORDED TO PRIVATE SECTOR EMPLOYEES BY THE NATIONAL LABOR RELATIONS ACT
AND THE DECISION OF THE UNITED STATES SUPREME COURT IN NLRB V. J.
WEINGARTEN, INC., 420 U.S. 251; 95 S.CT. 959; 88 LRRM 2689 (1975). /9/
B. SECTION 7116(A)(8)
THIS SECTION MAKES IT AN UNFAIR LABOR PRACTICE FOR AN AGENCY "TO
OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER."
THUS, A VIOLATION OF THIS SECTION IS NORMALLY ALLEGED WHERE AN AGENCY
FAILS TO COMPLY WITH SECTION 7114 SUPRA. IN THE PRESENT CASE, THE
COMPLAINT DOES NOT ALLEGE A FAILURE TO COMPLY WITH SECTION 7114, OR A
VIOLATION OF SECTION 7116(A)(8). FOR THE PURPOSE OF THIS PROCEEDING, AN
INVESTIGATORY INTERVIEW WAS NOT CONDUCTED AFTER THE EMPLOYEES REQUESTED
UNION REPRESENTATION.
C. SECTION 7116(A)(1)
THIS SECTION MAKES IT AN UNFAIR LABOR PRACTICE FOR AN AGENCY "TO
INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE
EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER." JUST AS AN EMPLOYEE HAS A
RIGHT TO BE REPRESENTED BY THE UNION AT AN INVESTIGATIVE INTERVIEW, SO
TOO DOES AN EMPLOYEE HAVE A STATUTORY RIGHT UNDER SECTION 7102 TO ACT IN
THE CAPACITY OF A UNION REPRESENTATIVE. /10/ THUS, AN AGENCY SUPERVISOR
OR OTHER REPRESENTATIVE CONDUCTING A SECTION 7114 INVESTIGATORY
INTERVIEW MUST CONDUCT HIMSELF OR HERSELF IN A MANNER WHICH DOES NOT
INTERFERE WITH THE STATUTORY RIGHTS OF THE EMPLOYEES INVOLVED. IN THIS
REGARD, SEE THE AUTHORITY'S RECENT DECISION IN NORFOLK NAVAL SHIPYARD, 9
FLRA NO. 55 (JULY 16, 1982). THERE, THE AUTHORITY HELD, IN AGREEMENT
WITH JUDGE ISABELLE CAPPELLO, THAT THE EMPLOYEES WHO WERE THE SUBJECT OF
AN INVESTIGATORY INTERVIEW WERE "UNNECESSARILY INTIMIDATED" BY THE
INVESTIGATOR'S CONDUCT "WHICH WENT BEYOND WHAT WAS REASONABLY NECESSARY
UNDER THE SPECIFIC CIRCUMSTANCES OF THIS CASE." THE AUTHORITY FOUND A
VIOLATION OF SECTION 7116(A)(1) AND (8). AN INDEPENDENT VIOLATION OF
SECTION 7116(A)(1) BASED UPON RESTRAINT OR COERCION WAS NOT ALLEGED IN
THE COMPLAINT.
THE OBLIGATION OF AN AGENCY TO RESPECT THE STATUTORY RIGHTS OF
EMPLOYEES IS ALSO ILLUSTRATED BY THE AUTHORITY'S DECISION IN FEDERAL
AVIATION ADMINISTRATION (SUPRA, FN. 8). IN THAT CASE THE AUTHORITY HELD
THAT SECTION 7114(A)(2)(B) REQUIRES THAT AN AGENCY GIVE AN EXCLUSIVE
REPRESENTATIVE THE OPPORTUNITY TO BE REPRESENTED AT ANY EXAMINATION OF
AN EMPLOYEE WHEN THE CONDITIONS PROVIDED IN THE SECTION HAVE BEEN MET,
AND THAT SUCH REPRESENTATIVE HAS THE RIGHT TO TAKE AN ACTIVE PART IN THE
DEFENSE OF THE EMPLOYEE. THE AUTHORITY AFFIRMED THE JUDGE'S FINDING THAT
THE AGENCY VIOLATED SECTION 7116(A)(1) AND (2) BY ORALLY REPRIMANDING AN
EMPLOYEE'S REPRESENTATIVE, THE UNION PRESIDENT, FOR HIS ACTIVITIES IN
REPRESENTING A UNIT EMPLOYEE AT AN INVESTIGATORY INTERVIEW. /11/ IN SO
CONCLUDING, IT WOULD APPEAR THAT THE AUTHORITY'S FINDING OF A VIOLATION
WAS PREMISED ON THE THEORY THAT RESPONDENT INTERFERED WITH THE
EMPLOYEE'S STATUTORY RIGHT TO REPRESENT OTHER EMPLOYEES IN HIS CAPACITY
AS A UNION REPRESENTATIVE. AS A COROLLARY CONCLUSION, THE AUTHORITY ALSO
HELD THAT SUCH UNLAWFUL CONDUCT-- (I.E. VIOLATING 7116(A)(1) AND (2) BY
ORALLY REPRIMANDING THE UNION REPRESENTATIVE DURING THE PERFORMANCE OF
HIS DUTIES)-- HAD THE CONCOMITANT EFFECT OF DEPRIVING THE UNIT EMPLOYEE,
WHO WAS THE SUBJECT OF THE INTERVIEW, OF HIS STATUTORY RIGHT UNDER
SECTION 7114 TO A REPRESENTATIVE. THUS, THE AUTHORITY ALSO FOUND A
VIOLATION OF SECTION 7116(A)(1) AND (8).
AN AGENCY'S INTERFERENCE WITH AN EMPLOYEE'S STATUTORY RIGHT TO
REQUEST A REPRESENTATIVE DOES NOT REQUIRE THE ACTUAL PRESENCE OF THE
UNION REPRESENTATIVE. THUS, IN NAVY RESALE /12/ A SUPERVISOR (RUSSELL)
ANGRILY REMINDED A SUBORDINATE (TATUM) THAT HE WAS THE BOSS AND THAT
THINGS WOULD GO MORE SMOOTHLY IF PROBLEMS WERE BROUGHT DIRECTLY TO HIM
INSTEAD OF SEEKING THE ASSISTANCE OF UNION REPRESENTATIVE SINGLETON. AS
NOTED THEREIN BY CHIEF ADMINISTRATIVE LAW JUDGE JOHN H. FENTON:
IT IS OBVIOUS THAT A SUBORDINATE WOULD ATTACH OMINOUS OVERTONES TO
SUCH A STATEMENT, AND WOULD
THINK TWICE ABOUT EXERCISING HIS RIGHT TO SEEK SINGLETON'S ASSISTANCE
IN THE RESOLUTION OF AN
EMPLOYMENT PROBLEM. IT FOLLOWS THAT RUSSELL'S STATEMENT WAS COERCIVE
OF THE STATUTORY RIGHT
OF EMPLOYEES TO REQUEST THEIR UNION'S REPRESENTATION.
THE AUTHORITY ADOPTED THE JUDGE'S FINDING OF A SECTION 7116(A)(1)
VIOLATION BASED UPON THIS COERCIVE STATEMENT.
LIKEWISE, IN UNITED STATES CUSTOMS, /13/ ADMINISTRATIVE LAW JUDGE
SAMUEL CHAITOVITZ WAS CALLED UPON TO DECIDE WHETHER THE AGENCY VIOLATED
SECTION 7116(A)(1) WHEN A SUPERVISOR, IN RESPONSE TO AN EMPLOYEE'S
REQUEST FOR UNION REPRESENTATION AT A FORMAL DISCUSSION, REPLIED THAT
"SHE DIDN'T KNOW WHETHER IT WAS A GOOD IDEA TO HAVE A UNION
REPRESENTATIVE PRESENT AT THE MEETING . . . IT COULD POSSIBLY CHANGE THE
SITUATION OR MAKE THE SITUATION MORE RIGID." THE JUDGE CONCLUDED THAT
SUCH A STATEMENT WOULD REASONABLY INDICATE TO AN EMPLOYEE THAT THE
AGENCY WOULD DEAL WITH THE EMPLOYEE AND HIS COMPLAINT MORE
SYMPATHETICALLY, I.E., LESS RIGIDLY, IF THE EMPLOYEE DID NOT EXERCISE
HIS RIGHT TO HAVE A UNION REPRESENTATIVE PRESENT. ACCORDINGLY, THE JUDGE
CONCLUDED THAT SUCH STATEMENT VIOLATED SECTION 7116(A)(1) BECAUSE IT WAS
A VEILED THREAT OF REPRISAL IF THE EMPLOYEE EXERCISED HIS PROTECTED
RIGHT.
D. THE ATTEMPTED INVESTIGATORY INTERVIEWS
THE COMPLAINT ALLEGES, AND THE ANSWER ADMITS, THAT TON OR ABOUT
JANUARY 23, 1980, RESPONDENT'S AGENT GILLING ATTEMPTED TO CONDUCT
INVESTIGATORY INTERVIEWS OF EMPLOYEES TARASKA AND RODRIQUEZ IN
CONNECTION WITH A REPORT OF MISSING FUNDS. THUS, THERE IS NO SERIOUS
DISPUTE, AND I FIND, THAT THE ATTEMPTED INVESTIGATORY INTERVIEWS WERE
INTENDED TO BE "AN EXAMINATION . . . IN CONNECTION WITH AN
INVESTIGATION" WITHIN THE MEANING OF SECTION 7114(A)(2)(B). GILLING
HIMSELF TESTIFIED THAT HE WAS CONDUCTING AN INVESTIGATION (TR. 188).
E. THE EMPLOYEES' REQUEST FOR REPRESENTATION
THE COMPLAINT ALLEGES, THE ANSWER ADMITS, AND THE EVIDENCE
ESTABLISHES THAT TARASKA AND RODRIQUEZ REQUESTED THAT AN AGENT OF THE
UNION BE PERMITTED TO ATTEND AND ACT AS THEIR REPRESENTATIVE AT SAID
INTERVIEWS. THUS, THE REQUIREMENTS OF SECTION 7114(A)(2)(B)(II) HAVE
BEEN MET.
F. WHETHER THE EMPLOYEES REASONABLY BELIEVED THAT THE EXAMINATION
MIGHT RESULT IN DISCIPLINARY ACTION
THE THRESHOLD ISSUE IN THIS PROCEEDING IS WHETHER TARASKA AND
RODRIQUEZ "REASONABLY BELIEVED"-- WITHIN THE MEANING OF SECTION
7114(A)(2)(B)(I)-- THAT "THE EXAMINATION MAY RESULT IN DISCIPLINE."
RESPONDENT CONTENDS THAT A REVIEW OF THE FACTS SURROUNDING THE MEETINGS
WITH GILLING, INCLUDING HIS OWN TESTIMONY AS SUBSTANTIATED BY THE
EMPLOYEES THEMSELVES, PROVIDES NO BASIS FOR THESE EMPLOYEES TO CONCLUDE
THAT DISCIPLINE MIGHT RESULT. FURTHER, TO THE EXTENT THAT THESE
EMPLOYEES REPORTED A FEAR OF DISCIPLINE, RESPONDENT CONTENDS THERE WAS
NO REASONABLE BASIS FOR SUCH FEAR, BASED UPON A REVIEW OF THE OBJECTIVE
FACTS, INCLUDING THEIR OWN TESTIMONY.
ON FEBRUARY 12, 1982, THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA ENFORCED A DECISION, HEREIN REFERRED TO AS IRS
HARTFORD (SUPRA, FN. 8), OF THE FEDERAL LABOR RELATIONS AUTHORITY
CONCERNING THE TEST TO BE UTILIZED IN DETERMINING WHETHER AN EMPLOYEE
"REASONABLY BELIEVES" THAT AN EXAMINATION MAY RESULT IN DISCIPLINARY
ACTION AGAINST THE EMPLOYEE-- WITHIN THE MEANING OF SECTION
7114(A)(2)(B)(I). THUS, THE COURT AGREED WITH THE CONCLUSION OF
ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO THAT THE APPLICABLE TEST,
AS SET FORTH BY THE SUPREME COURT IN WEINGARTEN, WAS WHETHER THE
INVESTIGATORY INTERVIEW WAS ONE IN WHICH THE RISK OF DISCIPLINE
REASONABLY INHERES AND THAT THIS WAS TO BE DETERMINED BY EXAMINING THE
EXTERNAL EVIDENCE (I.E. THE SURROUNDING FACTS AND CIRCUMSTANCES), RATHER
THAN THE EMPLOYEE'S STATE OF MIND AS WHETHER THE EMPLOYEE ACTUALLY
FEARED DISCIPLINE. ACCORDINGLY, IN LIGHT OF THIS PRECEDENT, MY
DETERMINATION HEREIN IS BASED UPON AN EXAMINATION OF THE EXTERNAL
EVIDENCE.
TARASKA AND RODRIQUEZ BOTH TESTIFIED THAT THEY FEARED DISCIPLINARY
ACTION MIGHT RESULT FROM THE INVESTIGATIVE INTERVIEW. THIS FEAR WAS
COMMUNICATED TO GILLING. THE SURROUNDING FACTS AND CIRCUMSTANCES
PROVIDE, IN MY OPINION, A REASONABLE BASIS FOR THIS BELIEF. THUS, BOTH
EMPLOYEES WORK IN CLOSE PROXIMITY TO EACH OTHER AND EACH COULD LOGICALLY
CONCLUDE-- WITHOUT BEING TOLD BY ANYONE-- THAT THEY COULD BE SUSPECTED
OF THEFT. IN FACT, GILLING DID TELL THEM THAT "ANYONE" COULD BE SUSPECT
WHEN HE PROVIDED THIS REASON FOR EXCLUDING KATZ. CLEARLY, IF KATZ COULD
BE A SUSPECT, THEY ALSO HAD REASON TO BELIEVE THEY COULD BE SUSPECTS.
ALSO, BOTH TARASKA AND RODRIQUEZ ALSO WERE WELL AWARE OF THEIR
OBLIGATION UNDER SECTION 226.1 OF THE CODE TO BE ACCOUNTABLE FOR MONIES
ENTRUSTED TO THEM AND THAT SEVERE DISCIPLINARY ACTION AND CRIMINAL
PROSECUTION COULD RESULT FROM FAILURE TO FOLLOW ESTABLISHED PROCEDURES.
THE TESTIMONY SHOWS A PRACTICE OF PLACING CASH AND MONEY ORDERS IN
UNLOCKED DESK DRAWERS AND LEAVING THE DESKS UNATTENDED WHILE AWAY FROM
THE DESK. THUS, THESE EMPLOYEES CLEARLY WERE VULNERABLE TO A CHARGE OF
ADMINISTRATIVE MISCONDUCT FOR THE MANNER IN WHICH THEY HANDLED CASH AND
MONEY ORDERS ENTRUSTED TO THEM FOR SAFEKEEPING. ACCORDINGLY, I CONCLUDE
THAT FROM THE VERY MOMENT WHEN TARASKA AND RODRIQUEZ WERE SUMMONED TO BE
INTERVIEWED BY GILLING, THEY EACH HAD A REASONABLE BASIS FOR CONCLUDING
THAT DISCIPLINARY ACTION MIGHT RESULT, AND THAT THEY THEREFORE NEEDED A
UNION REPRESENTATIVE.
NOTHING THAT WAS SAID TO THEM THEREAFTER BY GILLING ALLAYED OR
REMOVED THIS FEAR. THE FACT THAT GILLING MAY HAVE TOLD THE EMPLOYEES
THAT THEY WERE NOT "THE SUBJECT" OF THE INVESTIGATION IS OF NO
SIGNIFICANCE FOR THIS MERELY MEANS THEY WERE NOT THE SUBJECT OF THE
INVESTIGATION AT THAT PARTICULAR TIME. SURELY, IT WAS POSSIBLE THAT ONE
OR BOTH OF THEM COULD HAVE BECOME THE SUBJECTS OF A SUBSEQUENT
INVESTIGATION CONCERNING THEIR OWN MISCONDUCT OR NEGLIGENCE IN THE
HANDLING OF MONIES FOR WHICH THEY WERE STRICTLY ACCOUNTABLE. NOR IS IT
OF ANY AVAIL TO RESPONDENT THAT GILLING REFERRED TO THESE EMPLOYEES AS
"THIRD PARTIES" OR THAT HE WAS MERELY FOLLOWING APPROVED IRS
INVESTIGATIVE PROCEDURES FOR CONDUCTING A "THIRD-PARTY INTERVIEW." AS
THE COURT OF APPEALS SAID IN IRS HARTFORD (SUPRA) "THE STATEMENTS OF THE
INSPECTORS THAT DALEY WAS NOT PARTY, COULD NOT ELIMINATE THE RISK THAT
DALEY MIGHT BE PLACED IN JEOPARDY AS A CONSEQUENCE OF SOMETHING HE SAID
TO THEM."
IN THE PRIVATE SECTOR THIS NOTION OF IMMINENCY OF DISCIPLINE WAS
REJECTED BY THE 5TH CIRCUIT COURT OF APPEALS IN LENNOX INDUSTRIES, INC.
V. NLRB, 637 F.2D 340 (5TH CIR. 1981), 106 LRRM 2607, AT 2610.
AN INTERVIEW MAY WELL BE "INVESTIGATORY" AND MAY WELL REASONABLY
INCLUDE THE "RISK OF
DISCIPLINE" EVEN THOUGH THE EMPLOYER IS NOT SERIOUSLY CONTEMPLATING
DISCIPLINE AT THE TIME THE
INTERVIEW IS CONDUCTED. INDEED, A PURPOSE OF THE INTERVIEW MAY BE TO
DECIDE WHETHER
DISCIPLINE AGAINST AN EMPLOYEE IS AN OPTION TO BE SERIOUSLY
CONSIDERED. FURTHERMORE, AN
INTERVIEW IN WHICH WORK RELATED QUESTIONS ARE ASKED OF AN EMPLOYEE,
BUT WHICH THE EMPLOYER
DOES NOT INTEND TO RESULT IN DISCIPLINE MAY NEVERTHELESS RESULT IN
DISCIPLINE IF THE EMPLOYEE
SURPRISES HIS EMPLOYER WITH AN ANSWER WHICH THE EMPLOYER FINDS
UNSATISFACTORY OR
THREATENING. FOR THE WEINGARTEN RATIONALE TO BE EFFECTIVELY ACHIEVED,
COURTS MUST NOT NARROW
THE SCOPE OF THE DOCTRINE AS ENUNCIATED BY THE SUPREME COURT: IT IS
WHENEVER THE RISK OF
DISCIPLINE REASONABLY INHERES IN AN INVESTIGATORY INTERVIEW THAT A
UNION REPRESENTATIVE IS
REQUIRED, AND NOT MERELY WHEN DISCIPLINARY ACTION IS "POSSIBLE" OR
"SERIOUSLY CONSIDERED."
THE COURT OF APPEALS IN IRS HARTFORD (SUPRA) NOTED THAT THE RISK OF
DISCIPLINE WAS NOT ELIMINATED BECAUSE IT WAS MADE IN A CONTEXT WHEREIN
"DALEY COULD NOT BE ASSURED THAT HE WOULD NOT BE SUBJECT TO DISCIPLINE
AS A RESULT OF THE INTERVIEW." SIMILARILY, IN THE CASE BEFORE ME,
GILLING TESTIFIED THAT HE TOLD THE EMPLOYEES THERE WOULD BE "NO PROBLEM"
AND THEY HAD "NOTHING TO FEAR," BUT HE DID NOT SPECIFICALLY USE THE
PHRASE "NO DISCIPLINE WILL RESULT" OR "NO POSSIBILITY OF DISCIPLINE
RESULTING" (TR. 238-240). THUS, WE SEE THAT GILLING, AN EXPERIENCED
INVESTIGATOR, ADMITTEDLY ATTEMPTED TO PUT HIS WITNESSES "AT EASE" (TR.
212, 221) AT THE VERY BEGINNING AND IN SO DOING HE USED A TIME-HONORED
TECHNIQUE OF TELLING THEM THEY HAD NO PROBLEM AND NOTHING TO FEAR, BUT
HE DID NOT GO THE FINAL STEP AND PROVIDE THEM WITH A CONCRETE GUARANTEE
THAT NO DISCIPLINE COULD RESULT. /14/ ACCORDINGLY, TARASKA AND RODRIQUEZ
PROPERLY INSISTED UPON UNION REPRESENTATION AT ANY INTERVIEW GILLING
CHOSE TO CONDUCT.
G. WHETHER RESPONDENT VIOLATED SECTION 7116(A)(1) BY THE CONDUCT AND
STATEMENTS OF GILLING.
IN WEINGARTEN, THE SUPREME COURT APPROVED THE BOARDS'S VIEW THAT
. . . EXERCISE OF THE RIGHT (TO REPRESENTATION) MAY NOT INTERFERE
WITH LEGITIMATE EMPLOYER
PREROGATIVES. THE EMPLOYER HAS NO OBLIGATION TO JUSTIFY HIS REFUSAL
TO ALLOW UNION
REPRESENTATION, AND DESPITE REFUSAL, THE EMPLOYER IS FREE TO CARRY ON
HIS INQUIRY WITHOUT
INTERVIEWING THE EMPLOYEE, AND THUS LEAVE TO THE EMPLOYEE THE CHOICE
BETWEEN HAVING AN
INTERVIEW UNACCOMPANIED BY HIS REPRESENTATIVE, OR HAVING NO INTERVIEW
AND FOREGOING ANY
BENEFITS THAT MIGHT BE DERIVED FROM ONE.
WHAT THE SUPREME COURT IS SAYING IS THAT THE EMPLOYER AND THE
EMPLOYEE BOTH HAVE CHOICES. THE EMPLOYER'S CHOICE IS TO CONDUCT THE
INTERVIEW WITH THE EMPLOYEE ACCOMPANIED BY HIS OR HER REPRESENTATIVE, OR
TO NOT CONDUCT THE INTERVIEW AT ALL, WITH NO OBLIGATION TO EXPLAIN OR
JUSTIFY ITS ELECTION. THE EMPLOYEE, ON THE OTHER HAND, HAS A CHOICE OF
INSISTING ON THE PRESENCE OF HIS OR HER REPRESENTATIVE, OR RELINQUISHING
THIS RIGHT.
MY READING OF THE SUPREME COURT DECISION IN WEINGARTEN REQUIRES THE
EMPLOYER TO EITHER (1) GRANT THE EMPLOYEE'S VALID REQUEST TO
REPRESENTATION, OR (2) TERMINATE THE INTERVIEW. ALTHOUGH AN EMPLOYER MAY
WISH TO INFORM AN EMPLOYEE OF HIS OPTIONS, I DO NOT READ THE SUPREME
COURT'S DECISION AS PLACING THIS BURDEN ON THE EMPLOYER. /15/ HOWEVER,
AN EMPLOYER DOES HAVE A CONSTITUTIONAL RIGHT OF FREE SPEECH AND IS NOT
PRECLUDED FROM INFORMING AN EMPLOYEE THAT HE HAS A CHOICE BETWEEN TWO
OPTIONS. THUS AN EMPLOYER MAY LAWFULLY EXERCISE ITS RIGHT OF FREE SPEECH
(1) TO INFORM AN EMPLOYEE THAT HE OR SHE HAS A CHOICE BETWEEN TWO
OPTIONS, OR (2) TO INFORM AN EMPLOYEE THAT MANAGEMENT ALSO HAS A CHOICE
BETWEEN TWO OPTIONS.
WHEN AN EMPLOYER'S AGENT, LIKE GILLING, DECIDES NOT TO TERMINATE THE
INTERVIEW, HE PROCEEDS AT HIS PERIL AND MUST BE VERY CAREFUL NOT TO
CROSS THE LINE BETWEEN PERMISSIBLE FREE SPEECH, ON THE ONE HAND, AND
IMPERMISSIBLE INTERFERENCE WITH AN EMPLOYEE'S STATUTORY RIGHTS.
ACCORDINGLY, IN THE PRESENT CASE, WHEN GILLING INITIALLY INFORMED THE
EMPLOYEE THAT HE PREFERRED TO CONDUCT THE INTERVIEW WITHOUT A UNION
REPRESENTATIVE PRESENT, HE WAS MERELY STATING THE AGENCY'S POSITION AND
THIS WAS A PERMISSIBLE AND LAWFUL EXPRESSION OF OPINION. WHEN THE
EMPLOYEES NEVERTHELESS INSISTED ON THEIR UNION REPRESENTATIVE REMAINING,
THEY IN EFFECT REJECTED THE AGENCY'S PREFERRED TYPE OF INTERVIEW AND, IN
SO DOING, EXERCISED THEIR OPTION IN FAVOR OF RETAINING THEIR UNION
REPRESENTATIVE FOR ANY INTERVIEW CONDUCTED BY RESPONDENT. IT WAS
PRECISELY AT THIS POINT WHERE GILLING HAD TO GRANT THE EMPLOYEES'
REQUEST OR TERMINATE THE MEETING, BUT HE DID NEITHER. INSTEAD, GILLING
EMBARKED ON A COURSE OF CONDUCT WHICH FROM ITS VERY INCEPTION WAS
CLEARLY DESIGNED TO CAUSE TARASKA AND RODRIQUEZ TO CHANGE THEIR MINDS,
AND TO RELINQUISH A STATUTORY RIGHT THEY HAD ALREADY DECIDED TO RETAIN
AND HAD SO INFORMED GILLING.
IT MAY BE ARGUED THAT ONCE AN EMPLOYEE INSISTS UPON UNION
REPRESENTATION, AN EMPLOYER MUST ACCEPT THAT DECISION AND NOT ATTEMPT TO
CAUSE AN EMPLOYEE TO CHANGE HIS OR HER MIND AND RELINQUISH THIS
STATUTORY RIGHT. SUCH ARGUMENT OVERLOOKS THE FACT THAT THE SUPREME COURT
HAS ACKNOWLEDGED THAT THE RIGHT TO ASSISTANCE OF COUNSEL IN CRIMINAL
PROCEEDINGS /16/ MAY BE WAIVED, PROVIDING THAT SUCH WAIVER IS GIVEN
VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY. /17/ IN THIS REGARD,
VOLUNTARILY MEANS WITHOUT PRESSURE OR COERCION. /18/ INDEED WEBSTER'S
NEW WORLD DICTIONARY, SECOND COLLEGE EDITION (1972), STATES THAT THE
DIFFERENCE BETWEEN WAIVER AND RELINQUISHMENT IS THAT THE FORMER SUGGESTS
VOLUNTARY ACTION, WHILE THE LATTER CONNOTES GIVING UP A RIGHT OR CLAIM
UNDER COMPULSION. CERTAINLY, IF THE RIGHT TO ASSISTANCE OF COUNSEL MAY
BE WAIVED IN CRIMINAL PROCEEDINGS, THE RIGHT TO A UNION REPRESENTATIVE
UNDER SECTION 7114 ALSO MAY BE WAIVED. IT FOLLOWS, THEREFORE, THAT AN
EMPLOYER MAY ATTEMPT TO OBTAIN SUCH WAIVER, BUT REGARDLESS OF WHETHER
THE ATTEMPT IS SUCCESSFUL OR NOT, THE MEANS AND METHODS EMPLOYED MUST
NOT BE COERCIVE.
IN THE PRESENT CASE, IT CANNOT BE ARGUED THAT GILLING ACTUALLY WAS
SEEKING TO OBTAIN A WAIVER IN THE FIRST PLACE. THUS, HE DID NOT CONCEDE,
AND THEREFORE DID NOT ADVISE THESE EMPLOYEES, THAT THEY EVEN POSSESSED
THIS STATUTORY RIGHT. ACCORDINGLY, HAD THESE EMPLOYEES RELINQUISHED
THEIR STATUTORY RIGHT TO REPRESENTATION IN THESE CIRCUMSTANCES, SUCH
RELINQUISHMENT WOULD NOT HAVE BEEN GIVEN "KNOWINGLY" AND
"INTELLIGENTLY", AND IN MY OPINION WOULD NOT HAVE CONSTITUTED A WAIVER.
RATHER THAN SEEK A WAIVER IN A STRAIGHTFORWARD MANNER, GILLING PROCEEDED
TO UTILIZE A VARIETY OF COERCIVE TECHNIQUES TO FORCE THE EMPLOYEES TO
CHANGE THEIR MINDS. /19/
THE RELINQUISHMENT OF A STATUTORY RIGHT, LIKE A WAIVER, MUST BE GIVEN
VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY. IF AN EMPLOYEE RELINQUISHES A
RIGHT AS A RESULT OF AN EMPLOYER'S DURESS OR COERCIVE TACTICS, SUCH
RELINQUISHMENT IS NOT VOLUNTARY AND, THEREFORE, IS NOT VALID. IN THE
PRESENT CASE, IT IS OF NO SIGNIFICANCE THAT GILLING, DESPITE HIS
PERSISTENCE, WAS UNSUCCESSFUL. /20/ A VIOLATION OF SECTION 7116(A)(1)
OCCURS WHEN AN EMPLOYER MERELY ATTEMPTS TO CAUSE AN EMPLOYEE TO
RELINQUISH A STATUTORY RIGHT, BY MEANS PROSCRIBED BY SECTION 7116(A)(1),
INCLUDING SUBTLE OR BLATANT INTIMIDATION, VEILED OR EXPLICIT THREATS OF
REPRISAL, OR BY PROMISES OF BENEFIT. EMPLOYEES SHOULD NOT HAVE TO
UNDERGO TRIAL BY ORDEAL TO PERFECT THEIR STATUTORY RIGHT TO
REPRESENTATION, NOR SHOULD THEY HAVE TO RUN THE GAUNTLET OF THE KIND OF
PRESSURE TACTICS EMPLOYED HEREIN. THUS, AT FIRST GILLING MISSTATED THE
RIGHTS OF THESE EMPLOYEES BY SAYING TO EACH OR BOTH THAT THEY DIDN'T
NEED A REPRESENTATIVE; THAT THEY WERE VICTIMS, NOT SUSPECTS; THAT THIS
WAS MERELY A THIRD-PARTY INTERVIEW; THAT THERE WOULD BE NO PROBLEM;
AND THAT THEY HAD NOTHING TO FEAR. WHEN THIS TACTIC WAS UNSUCCESSFUL, HE
HAD THEM SUMMONED TO THEIR SUPERVISOR'S OFFICE TO READ THE CODE OF
CONDUCT IN HIS PRESENCE, FOLLOWED ALMOST IMMEDIATELY BY ANOTHER
CONFRONTATION AT WHICH GILLING, WITH THE SUPERVISOR STANDING BY, AGAIN
FOR THE UMPTEENTH TIME ASKED THEM TO DISMISS THEIR UNION REPRESENTATIVE.
IN THE CASE OF TARASKA, GILLING THEN TURNED TO SUPERVISOR BATT AND
DIRECTED HIM TO MAKE A WRITTEN RECORD OF HER DENIAL IN HIS PRESENCE. IN
THE CASE OF RODRIQUEZ, HE ALSO REQUIRED HER TO READ HIS CREDENTIALS AND
FOLLOWED THIS UP WITH A REQUEST TO DISMISS HER REPRESENTATIVE.
WHEN GILLING FIRST ASKED THESE EMPLOYEES TO DISMISS KATZ, HE WAS VERY
POLITE AND STATED THAT HE "PREFERRED" TO CONDUCT THE INTERVIEW WITHOUT
KATZ PRESENT. NOT SATISFIED WITH THEIR INITIAL REFUSAL, GILLING
REPEATEDLY ASKED THEM TO DISMISS KATZ. CLEARLY, THE MERE REPETITION OF
THESE QUESTIONS WAS COERCIVE IN NATURE, FOR WITH EACH REPETITION, A
REQUEST BECOMES A DEMAND, AND A SERIES OF QUESTIONS TAKES ON THE
CHARACTER OF AN INTERROGATION. INDEED, AN INTERROGATION MAY EVEN BECOME
AN INQUISITION IN CIRCUMSTANCES NOT PRESENTED HEREIN. ACCORDINGLY, I
FIND THAT THE REPEATED QUESTIONING OF THESE EMPLOYEES, WITHOUT MORE,
/21/ INTERFERED WITH, RESTRAINED, AND COERCED THESE EMPLOYEES IN THE
EXERCISE OF THEIR STATUTORY RIGHTS UNDER SECTION 7114 AND THEREBY
CONSTITUTES A VIOLATION OF SECTION 7116(A)(1) AS ALLEGED IN THE
COMPLAINT.
IN ADDITION, I FURTHER FIND THAT THE REPEATED ENTREATIES TO DISMISS
KATZ, MADE IN INCREASING EMPHATIC TONES OF VOICE, COUPLED WITH THE
IMPOSED REQUIREMENTS OF (1) READING GILLING'S CREDENTIALS, (2) READING
THE CODE OF CONDUCT, AND (3) RESPONDING TO THE FINAL ENTREATY IN THE
PRESENCE OF THEIR IMMEDIATE SUPERVISOR, WERE COERCIVE IN NATURE AND
TENDED TO INTERFERE WITH AND RESTRAIN THESE EMPLOYEES IN THE EXERCISE OF
THEIR STATUTORILY PROTECTED RIGHTS. IN MY VIEW, THIS ADDITIONAL EVIDENCE
CONCERNING GILLING'S BEHAVIOUR AND CONDUCT PROVIDE A FURTHER BASIS FOR
FINDING, AS ALLEGED IN THE COMPLAINT, THAT RESPONDENT FORCEFULLY ADJURED
TARASKA AND RODRIQUEZ TO RELINQUISH THEIR RIGHT TO A UNION
REPRESENTATIVE, AND THEREBY VIOLATED SECTION 7116(A)(1) OF THE STATUTE.
/22/
REMEDY
THE AUTHORITY ISSUED ITS DECISION IN IRS HARTFORD ON SEPTEMBER 26,
1980. THE VIOLATIONS OF THE STATUTE IN THIS CASE OCCURRED IN JANUARY
1981. AT THE HEARING IN OCTOBER 1981, RESPONDENT ATTEMPTED TO INTRODUCE
EVIDENCE TO ESTABLISH THAT GILLING WAS MERELY FOLLOWING SECTION 633.2(5)
CONCERNING THE PROCEDURES TO BE FOLLOWED BY INSPECTORS IN INTERVIEWING
THIRD-PARTY WITNESSES. WHILE SUCH EVIDENCE IS IRRELEVANT AS TO THE
VIOLATIONS HEREIN, I BELIEVE THAT COUNSEL FOR RESPONDENT'S STATEMENT
(TR. 205) DEMONSTRATES THAT IRS HAD NOT CHANGED ITS POLICY AND PROCEDURE
AS A RESULT OF THE AUTHORITY'S DECISION REJECTING RESPONDENT'S
THIRD-PARTY DEFENSE. IN THE ABSENCE OF ANY EVIDENCE DEMONSTRATING
ACCEPTANCE OF THE AUTHORITY'S DECISION - WHICH SUBSEQUENTLY WAS AFFIRMED
BY THE COURT OF APPEALS - I CAN ONLY CONCLUDE THAT THIS INVALID POLICY
IS STILL IN EFFECT AND INSPECTORS THROUGHOUT THE AGENCY ARE STILL
OBLIGATED TO FOLLOW SUCH POLICY. IN ITS BRIEF, THE CHARGING PARTY ARGUES
THAT IT SHOULD NOT HAVE TO RELITIGATE IRS HARTFORD IN EVERY DISTINCT IN
THE COUNTRY. I AGREE. SINCE GILLING WAS ACTING IN ACCORDANCE WITH
AGENCY-WIDE REGULATIONS, THERE IS CONSIDERABLE MERIT TO THE CHARGING
PARTY'S REQUEST FOR AN AGENCY-WIDE POSTING. /23/ HOWEVER, SINCE THE
COMPLAINT IS NOT AGENCY-WIDE IN SCOPE, I AM CONSTRAINED TO LIMIT THE
POSTING TO ALL OFFICES OF THE RESPONDENTS NAMED IN THE COMPLAINT,
INCLUDING THE FORT LAUDERDALE OFFICE, THE SITUS OF THE UNFAIR LABOR
PRACTICES HEREIN.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE
STATUTE, I RECOMMEND THAT THE AUTHORITY REMEDY THIS VIOLATION BY THE
ISSUANCE OF THE FOLLOWING:
ORDER
PURSUANT TO SECTION 7-18 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY, IT IS HEREBY ORDERED THAT DEPARTMENT
OF THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHEAST REGION, ATLANTA,
GEORGIA; DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
SOUTHEAST REGIONAL OFFICE OF INSPECTION, ATLANTA, GEORGIA; DEPARTMENT
OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE, FLORIDA SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING ANY BARGAINING UNIT
EMPLOYEE FROM EXERCISING
HIS OR HER RIGHT TO BE REPRESENTED BY THE NATIONAL TREASURY EMPLOYEES
UNION AT ANY
EXAMINATION, INTERVIEW OR MEETING CONDUCTED BY MANAGEMENT AND/OR
INSPECTION PERSONNEL
REGARDING AN INVESTIGATION, IF SUCH REPRESENTATIVE HAS BEEN REQUESTED
AND IF THE EMPLOYEE
REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY
RESULT IN DISCIPLINARY
ACTION AGAINST THE EMPLOYEE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING OUR EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE STATUTE:
(A) POST AT ALL OFFICES OF INTERNAL REVENUE SERVICE, SOUTHEAST
REGION, ATLANTA, GEORGIA,
THE SOUTHEAST REGIONAL OFFICE OF INSPECTION, ATLANTA, GEORGIA, AND
INTERNAL REVENUE SERVICE,
JACKSONVILLE, FLORIDA, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX." COPIES OF SAID
NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 4, AFTER
BEING SIGNED BY AN
AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON
RECEIPT THEREOF, AND BE
MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE
STEPS SHALL BE TAKEN TO
INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR FOR REGION 4, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
/1/ GILLING'S TESTIMONY AS TO THE DATE OF HIS VISIT IS CORROBORATED
BY KATZ (TR. 140). BOTH TARASKA AND RODRIQUEZ THOUGHT IT WAS A DAY OR
TWO LATER BUT TESTIFIED THEY WEREN'T SURE OF THE DATE. IT IS MORE LIKELY
THAT AN EXPERIENCED INVESTIGATOR LIKE GILLING WOULD HAVE THE BETTER
RECOLLECTION TO THE DATE OF HIS TRIP TO FORT LAUDERDALE.
/2/ I CREDIT TARASKA'S TESTIMONY BUT FIND IT UNNECESSARY TO SUMMARIZE
HERE THE REASONS WHY SHE FELT SHE NEEDED A UNION REPRESENTATIVE. TO THE
EXTENT THAT HER REASONS SHOW HER STATE OF MIND, SUCH FACTS ARE
IRRELEVANT. SEE IRS HARTFORD, INFRA, FN. 8.
/3/ GILLING TESTIFIED THAT HE MENTIONED BOTH THE MONEY ORDER INCIDENT
AND THE MISSING CASH.
/4/ AT FIRST, GILLING APPEARED TO BE QUITE PLEASANT, ACCORDING TO
KATZ WHO TESTIFIED THAT GILLING SAID, "I WOULD PREFER TO HAVE THIS
INTERVIEW WITHOUT HIM (KATZ). WOULD YOU PLEASE ASK HIM TO LEAVE?"
/5/ I CREDIT TARASKA'S TESTIMONY, AS CORROBORATED BY KATZ, THAT SHE
WAS NOT SPECIFICALLY TOLD BY GILLING THAT SHE WAS NOT THE SUBJECT OF THE
INVESTIGATION. IN FACT, GILLING STATED THAT "ANYONE IN THAT ROOM (WHERE
TARASKA WORKED) . . . WAS A SUSPECT" (TR. 59, 142). GILLING ADMITTED
(TR. 189) THAT TARASKA APPEARED TO BE CONFUSED AS TO WHETHER KATZ WAS
RIGHT (THAT SHE NEEDED A REPRESENTATIVE) OR GILLING WAS RIGHT (THAT SHE
DIDN'T NEED ONE).
/6/ THE TESTIMONY OF KATZ IS CORROBORATIVE. HE QUOTES GILLING AS
SAYING: "SINCE THIS CONCERNS YOU AND NOT HIM, WE WOULD PREFER TO HOLD
THIS AMONGST THE TWO OF US. PLEASE ASK HIM TO LEAVE" (TR. 141).
/7/ KATZ, WHOM I CREDIT, OBSERVED THAT WITH EACH ADDITIONAL REFUSAL
BY TARASKA, GILLING'S TONE OF VOICE BECAME MORE FORCEFUL, MORE STERN,
AND MORE HARSH (TR. 142, 143). KATZ ALSO TESTIFIED THAT GILLING,
ALTHOUGH NOT SHOUTING, RAISED HIS VOICE, GLARED AT TARASKA, AND SPOKE AS
IF ISSUING A COMMAND, ALTHOUGH STILL USING THE WORDS "PLEASE" AND "I
WOULD PREFER." THE FOREGOING CHARACTERIZATION IS NOT INCONSISTENT WITH
TARASKA'S TESTIMONY AND I ACCEPT IT. HOWEVER, I DO NOT ACCEPT KATZ'S USE
OF THE WORD "MENACING" AS DESCRIBING GILLING'S DEMEANOR AS IT IS NOT
CORROBORATED BY TARASKA.
/8/ FOR AN EXTENSIVE ANALYSIS OF THE LEGISLATIVE HISTORY AND MEANING
OF SECTION 7114 SEE JUDGE ALAN HEIFETZ'S DECISION IN UNITED STATES AIR
FORCE, 2750TH AIR BASE WING HEADQUARTERS, AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, OALJ-81-081 (1981). SEE ALSO THE
FOLLOWING DECISIONS BY THE AUTHORITY: U.S. DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE, 8 FLRA 325 (1982); DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD, 7 FLRA 766; FEDERAL AVIATION ADMINISTRATION,
ST. LOUIS TOWER, BRIDGETON, MISSOURI, 6 FLRA 678 (1981); LACKLAND AIR
FORCE BASE EXCHANGE, LACKLAND AIR FORCE BASE, TEXAS, 5 FLRA NO. 60
(1981); INTERNAL REVENUE SERVICE, DETROIT, MICHIGAN, 5 FLRA NO. 53
(1981); U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES, CALIF., 5 FLRA
NO. 41 (1981); U.S. DEPARTMENT OF THE NAVY, U.S. MARINE CORPS, MARINE
CORPS LOGISTICS BASE, ALBANY, GEORGIA, 4 FLRA NO. 54 (1980); AND
INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE,
HARTFORD DISTRICT OFFICE, 4 FLRA NO. 37 (1980), ENFORCED USCA DC, NO.
80-2423 (FEB. 21, 1982). ALSO WORTHY OF CITATION ARE THE FOLLOWING
ADMINISTRATIVE LAW JUDGE DECISIONS: DEPARTMENT OF THE NAVY, NORFOLK
NAVAL BASE, NORFOLK, VIRGINIA, OALJ-82-06 (1981); DEPARTMENT OF THE
TREASURY, BUREAU OF THE MINT, U.S. MINT DENVER, COLORADO, OALJ-82-26
(1981), CASE NO. 7-CA-876, ORDER OF THE FLRA ISSUED APRIL 30, 1982; AND
LIBRARY OF CONGRESS, CASE NO. 3-CA-741, OALJ-82-96 (JUNE 21, 1982).
/9/ IN WEINGARTEN, THE SUPREME COURT STATED THAT THE COURT OF APPEALS
HAD IMPERMISSIBLY ENCROACHED UPON THE NLRB'S FUNCTION IN DETERMINING FOR
ITSELF IN THE LIGHT OF ITS OWN SPECIAL EXPERTISE - WHETHER AN EMPLOYEE
HAS A "NEED" FOR UNION ASSISTANCE AT AN INVESTIGATORY INTERVIEW.
CONCLUDING THAT THE NLRB'S "NEWLY ARRIVED AT CONSTRUCTION OF SECTION 7
OF THE ACT DOES NOT EXCEED THE REACH OF THAT SECTION," AND THAT "THE
BOARD HAS REACHED A FAIR AND REASONED BALANCE UPON A QUESTION WITHIN ITS
SPECIAL COMPETENCE," AND, FINALLY, THAT THE BOARD HAS "ADEQUATELY
EXPLAINED THE BASIS FOR ITS INTERPRETATION," THE SUPREME COURT REVERSED
THE COURT OF APPEALS AND ENFORCED THE BOARD'S DECISION.
/10/ SECTION 7102 PROVIDES THAT EACH EMPLOYEE SHALL HAVE THE RIGHT TO
FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION, AND SUCH RIGHT INCLUDES
THE RIGHT "TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
REPRESENTATIVE."
/11/ SECTION 7116(A)(2) MAKES IT 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.
/12/ NAVY RESALE SYSTEM, FIELD SUPPORT OFFICE, COMMISSARY STORE
GROUP, 5 FLRA NO. 42 (1981).
/13/ UNITED STATES CUSTOMS SERVICE REGION VIII, SAN FRANCISCO,
CALIFORNIA, CASE NO. 9-CA-499, OALJ-82-12 (NOV. 12, 1981).
/14/ CF. SPARTAN STORES, INC. V. NLRB, 628 F.2D 953 (CA-6 1980) WHERE
THE EMPLOYER EXPRESSLY DISCLAIMED POSSIBILITY OF DISCIPLINARY ACTION.
NOR WAS THIS A "RUN-OF-THE MILL" SHOP FLOOR CONVERSATION IN WHICH THE
EMPLOYEE COULD NOT REASONABLY FEAR SOME ADVERSE CONSEQUENCES. SEE
WEINGARTEN, SUPRA, AT 257-258.
/15/ CF. GENERAL ELECTRIC COMPANY, 240 NLRB 479, 100 LRRM 1248.
/16/ MIRANDA V. ARIZONA, 384 US 436.
/17/ BUTE V. ILLINOIS, 333 US 640; UVEGES V. PENNSYLVANIA, 335 US
437; WESTBROOK V. ARIZONA, 384 US 150; SWENSON V. BOSLER, 386 US 258,
FILLIPPINI V. RISTAINO, 585 F.2D 1163.
/18/ PATTON V. NORTH CAROLINA, 315 F.2D 643.
/19/ HERE, THE EMPLOYEES HAPPENED TO BE ACCOMPANIED BY THEIR UNION
REPRESENTATIVE WHO GAVE THEM ADVICE, ASSISTANCE AND ENCOURAGEMENT. BUT
EVEN WITH KATZ IN ATTENDANCE, RODRIQUEZ BECAME NERVOUS AND CONFUSED, AND
ALMOST DISMISSED HIM JUST TO CONCLUDE THE ORDEAL. IN THE AVERAGE CASE, A
UNION REPRESENTATIVE WOULD NOT BE PRESENT AT THIS EARLY STAGE AND AN
UNSOPHISTICATED EMPLOYEE WOULD HAVE TO FACE THE ONSLAUGHT OF EMPLOYER
PRESSURE ALL ALONE.
/20/ AN EMPLOYER MAY VIOLATE SECTION 7116(A)(1) BY THREATENING TO
DISCHARGE AN EMPLOYEE BECAUSE OF HIS UNION ACTIVITY, EVEN IF THE THREAT
IS NOT CARRIED OUT. LIKEWISE, AN EMPLOYER MAY VIOLATE SECTION 7116(A)(1)
BY INTERFERING WITH AN EMPLOYEE'S STATUTORY RIGHT TO A UNION
REPRESENTATIVE UNDER SECTION 7114, EVEN THOUGH THE EMPLOYER'S
INTERFERENCE IS NOT SUCCESSFUL. ACCORDINGLY, I REJECT RESPONDENT'S
DEFENSE THAT KATZ' CONTINUED PRESENCE PRECLUDES FINDING AN UNFAIR LABOR
PRACTICE.
/21/ IN REACHING THIS CONCLUSION I FIND MYSELF IN AGREEMENT WITH
COUNSEL FOR THE GENERAL COUNSEL'S ARGUMENT (TR. 256) THAT NO MATTER HOW
NICE AND POLITE GILLING MAY HAVE BEEN, AN UNFAIR LABOR PRACTICE MAY BE
PREMISED SOLELY ON HIS REPEATED DEMANDS THAT KATZ BE DISMISSED. IN THE
CONTEXT OF THIS CASE, THE REPEATED DEMANDS WOULD TEND TO COERCE A
REASONABLE EMPLOYEE. ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), FT.
CARSON, COLORADO, 9 FLRA NO. 69; FEDERAL MEDIATION AND CONCILIATION
SERVICE, 9 FLRA NO 31. ACCORDINGLY, I REJECT RESPONDENT'S POSITION
(BRIEF AT P. 11) THAT "MUCH MORE IS NEEDED" TO ESTABLISH RESTRAINT AND
COERCION.
/22/ NORFOLK NAVAL SHIPYARD, 9 FLRA NO. 55, FEDERAL AVIATION
ADMINISTRATION, 6 FLRA 678, NAVY RESALE SYSTEM, 5 FLRA NO. 42, UNITED
STATES CUSTOMS SERVICE, CASE NO. 9-CA-499, OALJ-82-12 (NOV. 12, 1981).
/23/ CF. J. P. STEVENS & CO., INC., 220 NLRB 270, 90 LRRM 1215
(1975).
TIMOTHY C. WELSH, ESQ.
FOR THE CHARGING PARTY
ROBERT M. FINER, ESQ.
FOR THE RESPONDENT
LINDA J. NORWOOD, ESQ.
FOR THE GENERAL COUNSEL
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER TO THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE ANY BARGAINING UNIT
EMPLOYEE FROM EXERCISING HIS OR HER RIGHT TO BE REPRESENTED BY THE
NATIONAL TREASURY EMPLOYEES UNION AT ANY EXAMINATION, INTERVIEW OR
MEETING CONDUCTED BY MANAGEMENT AND/OR INSPECTION PERSONNEL REGARDING AN
INVESTIGATION, IF SUCH REPRESENTATIVE HAS BEEN REQUESTED AND IF THE
EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING
MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
. . . (AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 1776 PEACHTREE
STREET, NW., SUITE 501, NORTH WING, ATLANTA, GEORGIA, 30309, AND WHOSE
TELEPHONE NUMBER IS (404) 881-2324. 770801 0000550
19 FLRA-ALJ; CASE NO. 2-CA-1119 AUGUST 31, 1982
U.S. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1917, AFL-CIO, CHARGING PARTY
BEFORE: WILLIAM NAIMARK, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO AN ORDER CONSOLIDATING CASES, /1/ AMENDED COMPLAINT AND
NOTICE OF HEARING, ISSUED ON DECEMBER 2, 1981, BY THE REGIONAL DIRECTOR
FOR THE FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK, NY, A HEARING WAS
HELD BEFORE THE UNDERSIGNED ON JANUARY 19, 1982 AT NEW YORK, NY.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101, ET SEQ. (HEREIN CALLED THE STATUTE OR
THE ACT). IT IS BASED ON A FIRST AMENDED CHARGE FILED ON OCTOBER 23,
1981 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1917, AFL-CIO
(HEREIN CALLED THE UNION), AGAINST THE U.S. IMMIGRATION AND
NATURALIZATION SERVICE (HEREIN CALLED THE RESPONDENT).
THE AMENDED COMPLAINT /2/ ALLEGED, IN SUBSTANCE, THAT IN OR ABOUT
JULY, 1981 RESPONDENT CHANGED ITS TERMS AND CONDITIONS OF EMPLOYMENT BY
UNILATERALLY ASSIGNING MANDATORY TRAINING DUTIES TO IMMIGRATION
EXAMINERS. SUCH ASSIGNMENT, IT IS ALLEGED, WAS MADE WITHOUT NOTIFYING
THE UNION OR AFFORDING IT AN OPPORTUNITY TO NEGOTIATE REGARDING ITS
IMPACT AND PROCEDURES FOR IMPLEMENTATION-- ALL IN VIOLATION OF SECTION
7116(A)(1) AND (5) OF THE STATUTE.
RESPONDENT'S ANSWER, /3/ DATED DECEMBER 15, 1981, ADMITTED THAT
MANDATORY TRAINING DUTIES WERE ASSIGNED TO IMMIGRATION EXAMINERS BUT
DENIED THAT SUCH ASSIGNMENT CONSTITUTED A CHANGE IN ESTABLISHED
CONDITIONS OF EMPLOYMENT. IT ALSO DENIED THE COMMISSION OF ANY UNFAIR
LABOR PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. /4/ BRIEFS WERE FILED WITH THE UNDERSIGNED ON
JULY 30, 1982 AND WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING-- AS WELL AS THE STIPULATION SUBMITTED BY THE PARTIES-- I
MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN, AND STILL IS, THE
COLLECTIVE BARGAINING REPRESENTATIVE OF ALL OF RESPONDENT'S EMPLOYEES
(EXCEPT SUPERVISORS, PROFESSIONALS AND MANAGERS), EXCLUDING THOSE
ASSIGNED TO BORDER PATROL SECTORS AND THOSE EXCLUDED FROM COVERAGE BY
THE CIVIL SERVICE REFORM ACT.
2. BOTH THE UNION AND RESPONDENT ARE PARTIES TO A WRITTEN COLLECTIVE
BARGAINING AGREEMENT /5/ WHICH WAS EXECUTED BY THE PARTIES ON JUNE 13,
1979. THE SAID AGREEMENT, BY ITS TERMS, IS EFFECTIVE FOR A THREE YEAR
PERIOD AND CONTAINS AN AUTOMATIC RENEWAL CLAUSE.
3. ARTICLE XV OF THE AFORESAID AGREEMENT IS ENTITLED "DEVELOPMENT AND
TRAINING". IT IS PROVIDED THEREUNDER, IN SUBSTANCE, THAT BOTH PARTIES
AGREE TRAINING /6/ AND DEVELOPMENT OF EMPLOYEES IS OF PRIME IMPORTANCE;
THAT "THROUGH THE PROCEDURES ESTABLISHED FOR EMPLOYEE-MANAGEMENT
COOPERATION THE PARTIES SHALL SEEK MAXIMUM TRAINING AND DEVELOPMENT OF
ALL EMPLOYEES." FURTHER, THE EMPLOYER AGREES THEREUNDER TO DEVELOPMENT
EFFECTIVE POLICIES AND PROCEDURES TO ACCOMPLISH THAT GOAL. THE ARTICLE
ALSO PROVIDES THAT EMPLOYEES ARE ENCOURAGED TO TAKE ADVANTAGE OF
TRAINING OPPORTUNITIES; THAT NOMINATION OF EMPLOYEES TO PARTICIPATE IN
TRAINING PROGRAMS SHALL BE BASED ON "SERVICE NEEDS" AND WOULD BE FAIR
AND EQUITABLE; THAT THE EMPLOYER WILL MAKE AVAILABLE TO EMPLOYEES
TRAINING OPPORTUNITIES AND SEMINARS CONSISTENT WITH ITS GOALS, AND WILL
PROVIDE APPROPRIATE TRAINING IN TRAINEE-LEVEL POSITIONS AS NEEDED. /7/
4. RESPONDENT'S NEW YORK DISTRICT OFFICE INCLUDES A TRAVEL CONTROL
BRANCH WHICH IS DIVIDED INTO SIX SECTIONS: (A) I-130 DEALS WITH
RELATIVE PETITIONS FOR BENEFITS UNDER THE IMMIGRATION AND NATURALIZATION
ACT; (B) I-140 HANDLES EMPLOYMENT PETITIONS; (C) 245 DEALS WITH
COALESCING THE AFORESAID PETITIONS INTO A FINAL APPLICATION, AS FOR
PERMANENT RESIDENCE; (D) NON-IMMIGRANT UNIT COVERS APPLICATIONS FOR
TEMPORARY STATUS IN THE UNITED STATES; (E) AIRPORT AND SEAPORT WHICH
DEAL WITH INSPECTION FUNCTIONS. /8/
5. PRIOR TO JULY, 1981 NO ORGANIZED TRAINING PROGRAM EXISTED AT
RESPONDENT'S TRAVEL CONTROL BRANCH. TRAINING, AS SUCH, WAS SPORADIC AND
INVOLVED A SUPERVISOR TAKING A NEWCOMER 'UNDER HIS WING'. THERE WERE NO
CLASSES, SESSIONS, OR FORMAL LECTURES, AND THE SUPERVISOR MERELY
INSTRUCTED THE NEW IMMIGRATION EXAMINER AS TO THE SPECIFIC JOB WHICH THE
LATTER WOULD PERFORM. NO CROSS-TRAINING OF EMPLOYEES TOOK PLACE, AND THE
NEW YORK TRAVEL CONTROL BRANCH EMPLOYEES WERE NEVER ORDERED TO
CONDUCT-TRAINING FOR THEIR PEERS.
6. PRIOR TO 1981 BOTH THE UNION AND RESPONDENT SIGNED A "TRAINING
AGREEMENT" COVERING THE TRAVEL CONTROL BRANCH HEREIN. /9/ IT PROVIDES,
IN SUBSTANCE, INTER ALIA, (A) A NEW IMMIGRANT EXAMINER WILL MEET WITH
HIS SUPERVISOR AND THE TRAINING COORDINATOR AND DISCUSS A COMPLETE AND
ADEQUATE TRAINING PROGRAM. THE EXAMINER WILL BE CROSS-TRAINED UNDER A
PROGRAM TO COMMENCE NO LATER THAN ONE YEAR FROM HIS ENTRY ON DUTY; (B)
ALL IMMIGRANT EXAMINERS WILL BE AFFORDED THE OPPORTUNITY TO PARTICIPATE
IN A CROSS-TRAINING PROGRAM; TRAINING DETAILS WILL BE ROTATED AMONG
EXAMINERS UNDER AN EQUITABLE SYSTEM AND MANAGEMENT WILL DEVELOP A
TRAINING SCHEDULE FOR PRESENTATION TO THE UNION FOR ITS COMMENTS; (C)
MANAGEMENT WILL MAINTAIN A LIST OF INSTRUCTOR COURSES TO BE ATTENDED BY
A TRAINING COORDINATOR DESIGNATED BY THE ASSISTANT DISTRICT DIRECTOR.
THE UNION IS PERMITTED TO SUBMIT PROPOSED ADDITIONS TO THE LIST. IF AN
EMPLOYEE IS AUTHORIZED TO ATTEND AN APPROVED INSTRUCTOR COURSE, HE SHALL
DO SO ON OFFICIAL DUTY TIME; (D) EACH MONTH MANAGEMENT WILL DESIGNATE
AT LEAST ONE EMPLOYEE FROM EACH UNIT TO BE SENT TO ANOTHER UNIT FOR
CROSS-TRAINING, AND SUPERVISION SHALL BE EXERCISED BY THE UNIT
SUPERVISOR. THE TRAINING PERIOD WILL BE A MINIMUM OF ONE MONTH AND SHALL
CONTINUE UNTIL ALL IMMIGRANT EXAMINERS HAVE BEEN TRAINED.
7. PRIOR TO 1981 THE EMPLOYEES INQUIRED OF MANAGEMENT AS TO WHEN IT
WOULD IMPLEMENT THE AFORESAID TRAINING AGREEMENT. THE EMPLOYER RESPONDED
THAT THERE WAS A SHORTAGE OF PERSONNEL AND A BIG 'PUSH' FOR PRODUCTION--
AND THE SAID PROGRAM, AS SET FORTH UNDER THE TRAINING AGREEMENT, WAS NOT
IMPLEMENTED.
8. IN 1981 (PRIOR TO JULY) JAMES B. FOSTER, ASSISTANT DISTRICT
DIRECTOR OF TRAVEL CONTROL, TOOK STEPS TO ORGANIZE CROSS-TRAINING OF
EMPLOYEES. HE RECOGNIZED THAT SUCH TRAINING AS EXISTED WAS CONFINED TO
THE VARIOUS UNITS. THUS, OFFICERS WHO WERE EXPECTED TO HANDLE ALL TYPES
OF APPLICATIONS - AS SET FORTH IN THE POSITION DESCRIPTION - WERE ONLY
TRAINED AS TO A PARTICULAR APPLICATION. FOSTER DISCUSSED IT WITH HIS
SUPERVISORS, AND HE SUGGESTED THAT THEY SHOULD SELECT THE INDIVIDUALS,
WHO WERE SPECIALISTS, TO TRAIN OTHER EXAMINERS IN THAT REGARD. FOSTER
TESTIFIED THAT HE SAW NO NEED TO TRAIN THE EXAMINER WHO WAS TO CONDUCT
TRAINING SESSIONS; THAT THE CROSS-TRAINING PROGRAM TO BE INSTITUTED
WOULD BE AN ONGOING ONE OF INDEFINITE DURATION, AND WOULD INVOLVE ABOUT
25-30 EMPLOYEES.
9. A MEMORANDUM DATED JUNE 25, 1981 WAS ISSUED BY FOSTER TO ALL
SUPERVISORY IMMIGRATION EXAMINERS, STATING THAT EFFECTIVE FRIDAY, JULY
24, AND EACH FRIDAY THEREAFTER, THE TRAVEL CONTROL BRANCH WOULD CONDUCT
ONE HOUR TRAINING SESSIONS FOR ALL EXAMINERS. IT SET FORTH THE
CROSS-TRAINING SCHEDULE FOR EACH UNIT, AND FOSTER STATED THEREIN THAT
THE TRAINING SHOULD INCLUDE,
"APPLICABLE SECTIONS OF THE I&NS LAW, CFR'S, O.I.'S, ETC. GOVERNING
THE OPERATIONAL FUNCTION
OF THE UNIT, REVIEW AND ADJUDICATION PROCEDURES TO BE FOLLOWED FOR
EACH TYPE OF APPLICATION
HANDLED BY THE UNIT, INTERVIEWING TECHNIQUES, DOCUMENTS; USE OF
RECORDING MACHINES, AND
PREPARATION OF REPORT FORMS FOR INPUT WITH MONTHLY AND OLD CASE
REPORTS."
THE MEMO ALSO INDICATED THAT TRAINING WOULD BE CONDUCTED BY QUALIFIED
IE.'S SELECTED BY THE SUPERVISOR, AND EACH UNIT SHOULD PREPARE A LIST OF
SUBJECT MATTERS, THE NAME OF THE INSTRUCTOR AND THE SPECIFIED TIME AND
PLACE OF THE TRAINING. ALL IMMIGRATION EXAMINERS WERE EXPECTED TO ATTEND
WEEKLY CROSS-TRAINING.
10. IN ABOUT JULY, 1981 THE SUPERVISORS ADVISED PARTICULAR EXAMINERS
THAT THEY WERE SELECTED TO CONDUCT CROSS-TRAINING FOR OTHER EMPLOYEES.
SOME EMPLOYEES, AS IRENE JELINEK, EXPRESSED CONCERN ABOUT GETTING UP
BEFORE A GROUP AND ADDRESSING THEM. JELINEK INFORMED HER SUPERVISOR, PAT
WILLIAMS, THAT SHE MIGHT BE NERVOUS AND HAVE TO CALL IN THAT SHE WAS
SICK. IN A WRITTEN MEMORANDUM, DATED JULY 24, 1981, FOSTER INFORMED
JELINEK THAT SHE WAS SELECTED TO GIVE A TRAINING SESSION COVERING THE
INTRODUCTION TO I-130 VISA PETITIONS; THAT HER FAILURE TO MAKE THE
PRESENTATION MAY RESULT IN DISCIPLINARY ACTION. /10/
11. IN A MEMORANDUM DATED JULY 22, 1981, WHICH WAS ADDRESSED TO THE
SUPERVISORY IMMIGRATION EXAMINERS, FOSTER LISTED THE INSTRUCTIONAL
MATTER AND THE TRAINER FOR EACH SESSION. THE TRAINING WAS TO COMMENCE,
ACCORDING TO THE MEMORANDUM, ON FRIDAY, JULY 24 AND SESSIONS WOULD TAKE
PLACE EACH FRIDAY THEREAFTER (EXCEPT FROM 11/27/81 THRU 1/9/82) THROUGH
JANUARY 15, 1982 UNDER THIS SCHEDULE. SUBSEQUENT MEMOS FROM FOSTER TO
THE SUPERVISORS SET FORTH THE TRAINING SCHEDULE DATEWISE FROM JANUARY
15, 1982 THROUGH APRIL 23, 1982.
12. RECORD FACTS REFLECT THAT, FOR THE MOST PART, NONE OF THE
EXAMINERS RECEIVED INSTRUCTIONS ON HOW TO CONDUCT A TRAINING SESSION.
EXAMINER KINASEWITZ TESTIFIED HE SPENT 5-10 NONWORK HOURS RESEARCHING
HIS TOPIC BEFORE CONDUCTING HIS TRAINING. NO DISCUSSION WAS HAD BY
MANAGEMENT WITH THE INSTRUCTING EXAMINERS AS TO WHETHER THE LATTER WOULD
UTILIZE WORK TIME FOR PREPARATION OF THE TOPIC, AND DORN TESTIFIED HE
RECEIVED NO INSTRUCTIONS AS TO HOW TO TRAIN OTHERS. ALL TOPICS WERE
SELECTED BY MANAGEMENT.
13. RECORD FACTS REVEAL THAT NO NOTIFICATION WAS GIVEN BY MANAGEMENT
TO THE UNION REGARDING THE CROSS-TRAINING PROGRAM NOR DID RESPONDENT
BARGAIN ABOUT IT. FOSTER TESTIFIED HE DID NOT CONSIDER THE PROGRAM TO BE
A CHANGE WHICH REQUIRED BARGAINING THEREON. HE FURTHER TESTIFIED THAT
THE CROSS-TRAINING EXISTENT WHEN FOSTER BECAME ASSISTANT DISTRICT
DIRECTOR FOR TRAVEL CONTROL.
CONCLUSIONS
IT IS CONCEDED BY GENERAL COUNSEL THAT THE INSTRUCTION OF A TRAINING
PROGRAM CONSTITUTES A MANAGEMENT RIGHT WITHIN THE MEANING OF SECTION
7106(A)(2)(B) OF THE STATUTE. NEVERTHELESS, IT IS ARGUED, RESPONDENT IS
REQUIRED TO NEGOTIATE-- UNDER SECTION 7106(B)(2) AND (3) THEREOF--
PROCEDURES TO BE FOLLOWED IN ASSIGNING TRAINING DUTIES, AS WELL AS THE
ADVERSE IMPACT UPON EMPLOYEES RESULTING THEREFROM. THIS OBLIGATION
EXISTS, IT IS MAINTAINED, SINCE THE TRAINING PROGRAM INSTITUTED IN JULY,
1981 WAS A CHANGE IN CONDITIONS OF EMPLOYMENT. GENERAL COUNSEL CONTENDS
THAT THIS UNILATERAL IMPLEMENTATION OF THE TRAINING ASSIGNMENTS IS
VIOLATIVE OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
RESPONDENT INSISTS THAT THE CROSS-TRAINING WHICH COMMENCED IN JULY,
1981 WAS NOT A CHANGE IN WORKING CONDITIONS; THAT TRAINING DUTIES HAD
BEEN ASSIGNED IN THE PAST; AND THAT A COMPREHENSIVE CROSS-TRAINING
AGREEMENT FOR TRAVEL CONTROL WAS IN EXISTENCE, BUT THE SAME HAD BEEN
DEEMED DORMANT. FURTHER, THE EMPLOYER INSISTS THERE WAS NO SUBSTANTIAL
OR MATERIAL IMPACT ON UNIT EMPLOYEES WHICH GIVES RISE TO AN OBLIGATION
TO BARGAIN. IT IS ALSO CONTENDED BY RESPONDENT THAT THE DISAGREEMENTS
OVER THE JULY, 1981 TRAINING PROGRAM ARE TANTAMOUNT TO DIFFERING AND
ARGUABLE INTERPRETATIONS OF THE NEGOTIATED AGREEMENT WHICH SHOULD BE
RESOLVED THROUGH THE GRIEVANCE PROCEDURE.
IT IS AN ESTABLISHED TENET IN THE PUBLIC SECTOR THAT WHERE A MATTER
INVOLVES DIFFERING AND ARGUABLE INTERPRETATIONS OF A NEGOTIATED
AGREEMENT-- AS OPPOSED TO A CLEAR, UNILATERAL BREACH OF THE AGREEMENT--
SUCH MATTER IS PROPERLY RESOLVED THROUGH A CONTRACTUAL
GRIEVANCE/ARBITRATION PROCEDURE RATHER THAN VIA AN UNFAIR LABOR PRACTICE
PROCEEDING. DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD,
CALIFORNIA, 1 FLRA NO. 13; NORFOLK NAVAL SHIPYARD, 6 A/SLMR 486, A/SLMR
NO. 708. THE FORMER CASE INVOLVED A DISPUTE AS TO THE AMOUNT OF TIME
PROPERLY ALLOTTED TO A UNION PRESIDENT TO CONDUCT UNION-MANAGEMENT
SESSIONS. THE ACTIVITY DESIRED TO LIMIT SUCH TIME TO 25% OF THE
OFFICIAL'S WORK WEEK, WHICH WAS OBJECTED TO BY THE UNION. SINCE THE
NEGOTIATED AGREEMENT PROVIDED FOR A "REASONABLE" TIME TO CONDUCT SUCH
BUSINESS, IT WAS HELD THAT THE MATTER INVOLVED DIFFERING AND ARGUABLE
INTERPRETATIONS OF THE AGREEMENT. THE DISPUTE WAS A PROPER SUBJECT FOR
RESOLUTION UNDER THE GRIEVANCE-ARBITRATION PROCEDURE, RATHER THAN
THROUGH THE UNFAIR LABOR PRACTICE PROCEDURES.
WHILE THE TRAINING AGREEMENT HEREIN (JOINT EXHIBIT 8) PROVIDES FOR A
FORMAL TRAINING PROGRAM, THE INSTANT MATTER DOES NOT ARISE AS A DISPUTE
OVER DIFFERENT INTERPRETATIONS THEREOF. THE AGREEMENT ITSELF WAS NEVER
IMPLEMENTED, AND RESPONDENT ADMITS IT REMAINED DORMANT AFTER ITS
EXECUTION. FURTHER, THE TRAINING ARRANGEMENTS DEVISED BY MANAGEMENT
CONTRASTS MARKEDLY WITH THE PROVISIONS OF THE TRAINING AGREEMENT. IN
INSTITUTING ITS CROSS-TRAINING PROGRAM, RESPONDENT NEITHER ADHERED TO
THE FORMAL AGREEMENT NOR FOLLOWED ITS SPECIFIC PROVISIONS. THUS, NO
CONTROVERSY AROSE WITH RESPECT TO THE INTENT OR MEANING OF ITS TERMS.
IN THIS POSTURE IT CANNOT BE CONCLUDED THAT THE CASE AT BAR INVOLVES
DIFFERING OR ARGUABLE INTERPRETATIONS OF A NEGOTIATED AGREEMENT, AND I
ACCORDINGLY REJECT SUCH CONTENTION.
IT CANNOT BE GAINSAID THAT RESPONDENT, UNDER SECTION 7106 OF THE ACT,
RETAINS THE RIGHT TO BOTH ASSIGN DUTIES TO ITS EMPLOYEES AND, AS AN
INTEGRAL PART THEREOF, INSTITUTE A TRAINING PLAN FOR THEM.
NEVERTHELESS, EVEN WHERE A DECISION TO CHANGE A PAST PRACTICE INVOLVES A
RESERVED MANAGEMENT RIGHT UNDER THE ACT, THERE IS A DUTY IMPOSED UPON
THE AGENCY IN CONNECTION THEREWITH. IN SUCH INSTANCE THE EMPLOYER IS
OBLIGED TO NOTIFY THE BARGAINING AGENT AND, UPON REQUEST, BARGAIN WITH
THE REPRESENTATIVE REGARDING THE IMPACT AND IMPLEMENTATION OF SUCH
CHANGE. DEPARTMENT OF THE INTERIOR, U.S. GEOLOGICAL SURVEY, CONSERVATION
DIVISION, GULF OF MEXICO REGION, METAIRIE, LOUISIANA, 9 FLRA NO. 65.
IN THE CASE AT BAR RESPONDENT ARGUES THAT NO CHANGE OCCURRED SINCE A
TRAINING PROGRAM (JOINT EXHIBIT 8) HAD ALREADY BEEN AGREED UPON, AND
TRAINING DUTIES HAD BEEN ASSIGNED TO EMPLOYEES IN THE PAST. NEITHER
ASSERTION IS PERSUASIVE. WHILE THE TRAINING AGREEMENT HAD BEEN EXECUTED
BEFORE 1981, IT HAD NOT BEEN PUT INTO EFFECT. THE SPECIFIC DETAILS, AS
SET FORTH THEREIN, WERE NOT IMPLEMENTED. MOREOVER, AT THE TIME ASSISTANT
DISTRICT DIRECTOR FOSTER INSTITUTED THE CROSS-TRAINING PROGRAM HEREIN NO
ATTEMPT HAD BEEN MADE TO PURSUE ANY OF THE PROCEDURES OUTLINED IN THE
SAID TRAINING AGREEMENT. IN TRUTH, NO TRAINING OF EMPLOYEES OCCURRED
OTHER THAN CASUAL INSTRUCTION GIVEN BY SUPERVISORS TO THE EMPLOYEE
CONCERNING THE TASK OR JOB TO THE PERFORMED. CONTRARIWISE, THE
CROSS-TRAINING PROGRAM WHICH BEGAN IN JULY, 1982 WAS A NEW PROCEDURE. IT
REQUIRED EMPLOYEES TO TRAIN THEIR PEERS AND EACH UNIT TO PREPARE A LIST
OF SUBJECT MATTERS. THE SESSIONS WERE TO BE CONDUCTED FOR ONE HOUR EACH
FRIDAY, THE SUPERVISORS DESIGNATED WHICH IMMIGRATION EXAMINERS WOULD
CONDUCT THE TRAINING, AND THE ASSISTANT DIRECTOR OUTLINED THE PARTICULAR
MATTERS TO BE COVERED. THIS, IN MY OPINION, RESULTED IN A COMPLETE
CHANGE FROM THE PAST PRACTICE. ACCORDINGLY, AN OBLIGATION AROSE ON THE
PART OF MANAGEMENT TO NOTIFY THE UNION HEREIN BEFORE IT MADE THE CHANGE
IN WORKING CONDITIONS AND-- UNLESS NO ADVERSE EFFECTS RESULTED
THEREFROM-- BARGAIN WITH THE REPRESENTATION AS TO ITS IMPACT AND
IMPLEMENTATION. SEE ALSO SOCIAL SECURITY ADMINISTRATION, 8 FLRA NO. 102
(1982).
IT IS URGED BY RESPONDENT THAT THE IMPLEMENTATION OF ITS
CROSS-TRAINING PROGRAM HAD, AT MOST, A DE MINIMIS IMPACT UPON ITS
EXAMINERS. IN SUPPORT OF ITS POSITION THAT AN ADVERSE EFFECT MUST BE
SHOWN OR PROVEN BEFORE A VIOLATION CAN OCCUR, THE AGENCY CITES OFFICE OF
PROGRAM OPERATIONS, FIELD OPERATION, SOCIAL SECURITY ADMINISTRATION, SAN
FRANCISCO REGION, 5 FLRA NO. 45 (1981). IN THE CITED CASE, THE PRIMARY
ISSUE PRESENTED WAS WHETHER THE ABSENCE OF A PARTICULAR FIELD
REPRESENTATIVE SUFFICIENTLY IMPACTED THE 25 OR 30 CLAIMS REPRESENTATIVES
WHO HAD TO HANDLE THE WORK PERFORMED BY THE ABSENTEE. THE AUTHORITY
ADOPTED THE CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE THEREIN THAT THE
NUMBER OF INTERVIEWS HANDLED BY THE REPRESENTATIVE REMAINED CONSTANT;
THAT, WITH THE AID OF 10 SERVICE REPRESENTATIVES AND THE SUPERVISORS,
ANY ADDITIONAL WORKLOAD DUE TO A MISSING INDIVIDUAL WAS WIDELY DIFFUSED
AND THE IMPACT UPON REMAINING CLAIMS REPRESENTATIVES WAS INSUBSTANTIAL.
THUS, THE FAILURE TO NOTIFY THE BARGAINING REPRESENTATIVE AND BARGAIN
REGARDING THE IMPACT OF ITS DECISION TO ASSIGN THE FIELD EMPLOYEE WAS
NOT DEEMED VIOLATIVE OF THE STATUTE.
WHILE NOT FREE FROM DOUBT, I AM PERSUADED THAT THE INSTITUTION OF THE
TRAINING PROGRAM HEREIN DID RESULT IN AN ADVERSE EFFECT UPON THE
IMMIGRATION EXAMINERS, AND THAT THE IMPACT UPON SUCH EMPLOYEES WAS NOT
DE MINIMIS. AT THE OUTSET IT MUST BE RECOGNIZED THAT REQUIRING EMPLOYEES
TO PARTICIPATE IN TRAINING SESSIONS IS AN ASSIGNMENT OF WORK. ITS
IMPORTANCE IS EMPHASIZED BY THE FACT THAT ASSIGNING TRAINING IS A
MANAGEMENT RIGHT AND, AS TO ITS DECISION IN THAT REGARD, IS
NON-NEGOTIABLE. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61
AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66. MOREOVER, THIS
IMPORTANCE IS RECOGNIZED BY RESPONDENT SINCE ITS COLLECTIVE BARGAINING
AGREEMENT (ARTICLE 15) STATES "THAT THE TRAINING AND DEVELOPMENT OF
EMPLOYEES WITHIN THE UNIT IS A MATTER OF PRIMARY IMPORTANCE TO THE
PARTIES".
IN ITS BRIEF RESPONDENT ARGUES THAT IN ONE YEAR'S TIME, WITH A UNIT
OF ABOUT 25 EMPLOYEES, NO EMPLOYEE WOULD BE CALLED UPON MORE THAN TWICE
"DURING A EVALUATION PERIOD" TO GIVE A PRESENTATION. EVEN THREE ONE HOUR
PRESENTATIONS IN A YEAR, IT INSISTS, WOULD BE DIFFUSED SO THAT THE
IMPACT ON EVALUATION WOULD BE INSUBSTANTIAL. THIS ARGUMENT LENDS
CREDENCE, AT LEAST, TO THE INFERENCE THAT THE DUTY IMPOSED UPON
EXAMINERS, VIZ TRAINING OTHER EMPLOYEES, IS A FACTOR TO BE CONSIDERED IN
EVALUATING THE WORK PERFORMANCE OF THE EXAMINERS. WHILE IT MAY OCCUR
INFREQUENTLY, I DO NOT SUBSCRIBE TO THE RESPONDENT'S VIEW THAT IT IS
"DIFFUSED" AS TO RENDER THE IMPACT INSUBSTANTIAL. THE RESULTANT
DIFFUSION IN THE SOCIAL SECURITY ADMINISTRATION CASE, SUPRA, WAS DUE TO
AN ABSORPTION OF THE WORK OF THE ASSIGNED EMPLOYEE BY OTHERS. IN THAT
INSTANCE, THE EXTRA INTERVIEWS HANDLED BY THE REMAINING CLAIMS
REPRESENTATIVES WAS DEEMED NEGLIGIBLE. THE CASE AT BAR IS
DISTINGUISHABLE IN THAT RESPECT SINCE THE MANNER IN WHICH THE EXAMINERS
CONDUCT THE TRAINING OF THEIR PEERS, TOGETHER WITH THE PLANNING AND
EFFECTIVENESS OF THEIR PRESENTATION, ARE FACTORS WHICH WOULD AFFECT
THEIR RATINGS AND PROMOTIONAL CONSIDERATION. THIS NEW TASK IS A WORK
CONDITION AND MUST BE PERFORMED SATISFACTORILY AND COMPETENTLY JUST AS
THEIR OTHER DUTIES. THE FOREGOING IS RECOGNIZED BY THE EMPLOYER SINCE
ARTICLE 15(B) OF THE COLLECTIVE BARGAINING AGREEMENT REFERS TO TRAINING
AS ADDING TO THE SKILLS AND QUALIFICATIONS NEEDED TO PERFORM EFFICIENTLY
AND SECURE ADVANCEMENT IN THE SERVICE. THUS, THE TRAINING OF THEIR PEERS
COULD WELL HAVE, IN MY OPINION, A SUBSTANTIAL IMPACT UPON THE
PERFORMANCE RATINGS OF THE EXAMINERS AND AFFECT THEIR STANDING AS WELL
AS PROMOTIONAL POSSIBILITIES.
FURTHER, I AGREE WITH THE GENERAL COUNSEL THAT THE TIME TO BE
ALLOTTED FOR PREPARATION OF THE TRAINING SESSIONS WOULD BE A SIGNIFICANT
FACTOR HEREIN. IT MAY WELL BE THAT SOME EXAMINERS WOULD BE UNABLE TO
PREPARE THEIR TRAINING LECTURES DURING NON-WORKING HOURS. UNDER THOSE
CIRCUMSTANCES SOME ARRANGEMENTS MAY BE NECESSARY WHICH WOULD AFFORD THEN
THE TIME TO DO SO DURING REGULAR WORK HOURS.
NOTE IS TAKEN THAT IN A RECENT DECISION ADMINISTRATIVE LAW JUDGE ELI
NASH, JR. CONCLUDED THAT NO VIOLATION EXISTED WHERE THE AGENCY REFUSED
TO BARGAIN WHERE EMPLOYEES WERE ASSIGNED THE DUTY TO MAKE SPEECHES AT
PUBLIC GATHERINGS. SEE UNITED STATES DEPARTMENT OF THE TREASURY, BUREAU
OF ALCOHOL, TOBACCO AND FIREARMS; WASHINGTON, D.C. AND ITS CENTRAL
REGION, OALJ 82-87, DECEMBER 17, 1981. HE CONCLUDED THAT NO SUBSTANTIAL
IMPACT UPON THE EMPLOYEES (INSPECTORS) WAS SHOWN TO EXIST. THE
CIRCUMSTANCES HEREIN CONTRAST MARKEDLY WITH THOSE IN THE CITED CASE. IN
THE LATTER THE ASSIGNMENT WAS MADE ON A VOLUNTARY BASIS, WHEREAS IN THE
CASE AT BAR IT WAS MANDATORY. MOREOVER, ONLY A FEW OF THE 150 INSPECTORS
WERE CALLED UPON TO GIVE A SPEECH, AND MOST OF THEN ENGAGED IN ONLY ONE
INSTANCE OF SPEECHMAKING. IT IS ALSO QUITE EVIDENT THAT CONDUCTING
TRAINING SESSIONS CAN SCARCELY BE COMPARED TO DELIVERING SPEECHES AT
PUBLIC SESSIONS. THE DETAILS TO BE COVERED, THE SUBJECT MATTER, AND THE
INSTRUCTIVE NATURE OF THE TRAINING PROGRAM REQUIRES AN EXACTITUDE AND
PARTICULARIZATION NOT NECESSARILY CALLED FOR WHEN MAKING SPEECHES.
IN SUM, I AM SATISFIED THAT, BASED ON THE RECORD HEREIN, THE
INSTITUTION OF THE TRAINING PROGRAM WHEREBY THE IMMIGRATION EXAMINERS
TRAINED THEIR PEERS RESULTED IN A SUBSTANTIAL IMPACT UPON SAID
EXAMINERS. ACCORDINGLY, SINCE THE RESPONDENT UNILATERALLY INSTITUTED THE
SAID PROGRAM, AND FAILED TO NOTIFY THE UNION AND BARGAIN WITH IT
REGARDING ITS IMPACT AND IMPLEMENTATION, I CONCLUDE THE AGENCY VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE.
HAVING CONCLUDED AS AFORESAID, I RECOMMEND THE AUTHORITY ISSUE THE
FOLLOWING:
ORDER /11/
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 THE U.S. IMMIGRATION AND NATURALIZATION SERVICE
SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY INSTITUTING A MANDATORY CROSS-TRAINING PROGRAM
WHEREIN BARGAINING UNIT
EMPLOYEES WILL BE ASSIGNED THE DUTY OF CONDUCTING TRAINING SESSIONS
FOR OTHER SUCH EMPLOYEES
WITHOUT FIRST NOTIFYING AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1917, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING IT THE
OPPORTUNITY TO BARGAIN
CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH ASSIGNMENT.
(B) 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 ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE.
(A) RESCIND THE MANDATORY CROSS-TRAINING PROGRAM UNILATERALLY
INSTITUTED BY RESPONDENT IN
JULY, 1981 WHEREIN BARGAINING UNIT EMPLOYEES WERE ASSIGNED THE DUTY
OF CONDUCTING TRAINING
SESSIONS FOR OTHER SUCH EMPLOYEES.
(B) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1917, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OF ANY INTENTION TO
INSTITUTE A MANDATORY
CROSS-TRAINING PROGRAM WHEREIN BARGAINING UNIT EMPLOYEES WILL BE
ASSIGNED THE DUTY OF
CONDUCTING TRAINING SESSIONS FOR OTHER SUCH EMPLOYEES, AND UPON
REQUEST, BARGAIN IN GOOD
FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING
THE IMPACT AND
IMPLEMENTATION OF SUCH CROSS-TRAINING PROGRAM.
(C) POST AT ITS FACILITIES AT 26 FEDERAL PLAZA, NEW YORK, NY, 10278,
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 DIRECTOR OF THE U.S.
IMMIGRATION AND
NATURALIZATION SERVICE, NEW YORK DISTRICT, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS
SHALL BE TAKEN BY THE
DISTRICT DIRECTOR TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED OR COVERED BY ANY OTHER
MATERIAL.
(D) NOTIFY THE REGIONAL DIRECTOR, REGION 2, 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.
/1/ THE INSTANT CASE WAS CONSOLIDATED FOR HEARING WITH CASE NO.
2-CA-1151 INVOLVING THE SAME PARTIES. THEREAFTER, AN ORDER SEVERING
CASES WAS ISSUED ON JANUARY 12, 1982 BY THE REGIONAL DIRECTOR. SAID
ORDER SEVERED CASE NO. 2-CA-1151 WHICH THE PARTIES AGREED TO PURSUE BY
WAY OF A STIPULATED RECORD PURSUANT TO SECTION 2429.1 OF THE RULES AND
REGULATIONS.
/2/ AT THE HEARING THE UNDERSIGNED GRANTED GENERAL COUNSEL'S MOTION
TO WITHDRAW PARAGRAPHS 8(A) AND (B), AS WELL AS 9(A), (B), AND (C), OF
SAID COMPLAINT SINCE THEY REFERRED TO CASE NO. 2-CA-1151 WHICH WAS
SEVERED FROM THE INSTANT PROCEEDING.
/3/ RESPONDENT'S ANSWER DENIED THE VIOLATION OF SECTION 7116(A)(1) OF
THE STATUTE. AT THE HEARING RESPONDENT SUBMITTED AN "ADDENDUM TO ANSWER
TO COMPLAINT" (RESP. EXHIBIT 1) WHICH ALSO DENIED ANY VIOLATIONS OF
SECTION 7116(A)(5) OF THE STATUTE.
/4/ THE ENTIRE TESTIMONY OF ONE WITNESS, AS WELL AS SUBSTANTIAL
PORTIONS OF THE TESTIMONY OF TWO OTHER WITNESSES, WAS DESTROYED DURING
THE TAPING OF THIS PROCEEDING. ALL PARTIES SUBMITTED A STIPULATION TO
THE UNDERSIGNED ON JUNE 2, 1982 TO COVER THE EVIDENTIARY MATERIAL SO
DESTROYED. ALONG THEREWITH THE PARTIES SUBMITTED A MOTION TO RECEIVE THE
STIPULATION INTO EVIDENCE IN LIEU OF THE MISSING TESTIMONY, AS WELL AS A
REQUEST TO FILE BRIEFS 30 DAYS AFTER A RULING THEREON. UNDER DATE OF
JUNE 29, 1982 THE UNDERSIGNED ISSUED AN ORDER GRANTING THE AFORESAID
MOTION, AND THE PARTIES WERE GRANTED TIME UNTIL JULY 30, 1982 TO FILE
BRIEFS. ACCORDINGLY, THE STIPULATION COVERING THE MISSING TESTIMONY IS
MADE A PART OF THE RECORD HEREIN.
/5/ THE RESPONDENT, IN THE SAID AGREEMENT, RECOGNIZED THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES (NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL) AS THE BARGAINING AGENT. IT HAS
RECOGNIZED THE UNION (AFGE, LOCAL 1917, AFL-CIO) AS THE SAID AGENT FOR
EMPLOYEES IN THE NEW YORK DISTRICT OF THE SERVICE.
/6/ NO PROVISION IS MADE FOR MANDATORY TRAINING UNDER THIS ARTICLE.
/7/ TRAINING IS NOT A JOB DUTY UNDER THE POSITION DESCRIPTION OF
IMMIGRATION EXAMINERS.
/8/ THE FIRST FOUR SECTIONS OR UNITS ARE INCLUDED WITHIN THE
EXAMINATION DIVISION; THE LAST TWO SECTIONS ARE UNDER THE INSPECTION
DIVISION.
/9/ THIS AGREEMENT (JOINT EXHIBIT 8) WAS RECEIVED IN EVIDENCE AS A
SIGNED BUT UNDATED DOCUMENT. RECORD TESTIMONY REFLECTS, AND I FIND, IT
WAS EXECUTED BEFORE THE COMMENCEMENT OF THE CROSS-TRAINING PROGRAM
INSTITUTED BY RESPONDENT IN JULY, 1981. ANY FAILURE TO ABIDE BY ITS
TERMS, ON THE PART OF RESPONDENT, IS NOT WITHIN THE ALLEGATION OF THE
COMPLAINT HEREIN.
/10/ SEVERAL EXAMINERS IN I-140 ADVISED MANAGEMENT THEY DID NOT
DESIRE TO CONDUCT TRAINING PROGRAMS. HOWEVER, THE EMPLOYEES WERE
INFORMED BY THEIR SUPERVISOR THAT IT WAS MANDATORY AND A FAILURE TO
REPORT WOULD REFLECT UPON RATINGS.
/11/ IT IS CONCLUDED BY THE UNDERSIGNED THAT A STATUS QUO ANTE REMEDY
IS WARRANTED UNDER THE CIRCUMSTANCES HEREIN. THE IMPACT EXTENDED TO ALL
25-30 EXAMINERS, ALBEIT THEY MIGHT ONLY BE REQUIRED TO CONDUCT THREE
TRAINING SESSIONS. THE EFFECT IS MORE PRONOUNCED UPON THE EMPLOYEES,
BASED ON THE RECORD, THAN UPON THE OPERATION OF THE TRAVEL CONTROL
BRANCH. MOREOVER, NO FORMAL TRAINING PROGRAM EXISTED FOR YEARS DESPITE
THE UNION'S PLEA THEREFOR. ACCORDINGLY, I WOULD CONCLUDE NO URGENT
FACTORS APPEAL WHICH WARRANTS THE CONCLUSION THAT THIS REMEDY WOULD
DISRUPT OR IMPAIR THE EFFECTIVENESS OF RESPONDENT'S OPERATION. SEE AND
COMPARE FEDERAL CORRECTIONAL INSTITUTION 8 FLRA NO. 111.
JUDITH DEC
JOSEPH MANGIULLI
FOR THE RESPONDENT
STEVEN SHARFSTEIN, ESQ.
FOR THE GENERAL COUNSEL
SHELDON P. DORN
FOR THE CHARGING PARTY
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 UNILATERALLY INSTITUTE A MANDATORY CROSS-TRAINING PROGRAM
WHEREIN BARGAINING UNIT EMPLOYEES WILL BE ASSIGNED THE DUTY OF
CONDUCTING TRAINING SESSIONS FOR OTHER SUCH EMPLOYEES WITHOUT FIRST
NOTIFYING AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1917,
AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF SUCH EMPLOYEES, AND AFFORDING
IT THE OPPORTUNITY TO BARGAIN, TO THE EXTENT CONSONANT WITH LAW AND
REGULATION, CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH ASSIGNMENT.
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 RESCIND THE MANDATORY CROSS-TRAINING PROGRAM UNILATERALLY
INSTITUTED IN JULY, 1981 WHEREIN BARGAINING UNIT EMPLOYEES WERE ASSIGNED
THE DUTY OF CONDUCTING TRAINING SESSIONS FOR OTHER SUCH EMPLOYEES.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1917, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, OF ANY
INTENTION TO INSTITUTE A MANDATORY CROSS-TRAINING PROGRAM WHEREIN
BARGAINING UNIT EMPLOYEES WILL BE ASSIGNED THE DUTY OF CONDUCTING
TRAINING SESSIONS, AND, UPON REQUEST, BARGAIN IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, WITH SUCH REPRESENTATIVE
CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH ASSIGNMENT.
. . . (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 2,
WHOSE ADDRESS IS: 26 FEDERAL PLAZA, ROOM 24-102, NEW YORK, NY, 10278,
AND WHOSE TELEPHONE NUMBER IS: (212) 264-4934. 770801 0000540
18 FLRA-ALJ; CASE NO. 8-CA-888 JUNE 18, 1982
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
HONOLULU TOWER, HONOLULU INTERNATIONAL AIRPORT, HONOLULU, HAWAII
RESPONDENT AND PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, LOCAL 710 CHARGING PARTY
BEFORE: ELI NASH, JR., ADMINISTRATIVE LAW JUDGE
ORDER RECOMMENDING DISMISSAL OF COMPLAINT
ON MARCH 10, 1981, THE REGIONAL DIRECTOR FEDERAL LABOR RELATIONS
AUTHORITY, REGION 8 ISSUED A COMPLAINT IN THE CAPTIONED MATTER ALLEGING
THAT DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
PACIFIC-ASIA REGION, AIR TRAFFIC CONTROL CENTER, HONOLULU, HAWAII,
HEREIN CALLED RESPONDENT, TOLD UNIT EMPLOYEES THAT THEY WOULD NOT BE
ALLOWED TO ENGAGE IN INFORMATIONAL PICKETING AND/OR DISTRIBUTION OF
LITERATURE DURING THEIR BREAKS AND LUNCH PERIODS; AND, TOLD A UNIT
EMPLOYEE THAT IF THE EMPLOYEE WENT NEAR A PICKET LINE HE COULD FACE
SUSPENSION. THE INFORMATIONAL PICKETING AND DISTRIBUTION OF LITERATURE
WAS DONE ON BEHALF OF PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, LOCAL 710, HEREIN
CALLED THE UNION.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON MAY 1, 1981. SUBSEQUENT
TO THIS HEARING THE UNION ENGAGED IN A STRIKE WHICH BEGAN ON AUGUST 3,
U981. ON OCTOBER 22, 1981, THE FEDERAL LABOR RELATIONS AUTHORITY HEREIN
CALLED THE AUTHORITY, ISSUED A DECISION IN PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, AFFILIATED WITH MEBA, AFL-CIO AND FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, 7 FLRA NO. 10
(1981), IN WHICH IT FOUND THAT THE UNION WILLFULLY AND INTENTIONALLY
VIOLATED SECTION 7116(B)(7)(A) AND (B) OF THE STATUTE. THE AUTHORITY'S
REMEDIAL ORDER INCLUDED REVOKING THE UNION'S STATUS AS AN EXCLUSIVE
BARGAINING AGENT. THE EFFECT OF THAT REVOCATION UNDER SECTION 7120(F) IS
THAT THE UNION "IMMEDIATELY CEASED TO BE LEGALLY ENTITLED AND OBLIGATED
TO REPRESENT EMPLOYEES IN THE UNIT." THUS, THE UNION IS NO LONGER A
LABOR ORGANIZATION WITHIN THE SECTION 7103(A)(4)(D) OF THE STATUTE.
THEREAFTER, ON DECEMBER 1, 1981, THE UNDERSIGNED ISSUED AN ORDER TO
SHOW CAUSE WHY THE COMPLAINT IN THE SUBJECT CASE SHOULD NOT BE
DISMISSED. ALL PARTIES RESPONDED TO THE ORDER. THE UNION NOTED IN ITS
RESPONSE THAT THE AUTHORITY'S DECISION IN THE MATTER WAS THEN BEFORE THE
D.C. CIRCUIT COURT OF APPEALS AND REQUESTED THAT A DECISION BE RENDERED
IN THE MATTER WITH DELAY IN IMPLEMENTATION OF ANY REQUIRED CORRECTIVE
ACTION UNTIL THE UNION'S FINAL STATUS WAS DETERMINED OR, IN THE
ALTERNATIVE, DELAY THE ENTIRE MATTER UNTIL THE UNION'S FINAL STATUS WAS
DETERMINED. THE GENERAL COUNSEL MOVED FOR DISMISSAL INASMUCH AS THE
UNION WAS NO LONGER ENTITLED TO BARGAINING RIGHTS. RESPONDENT APPARENTLY
RESPONDING TO THE GENERAL COUNSEL'S REQUEST FOR DISMISSAL HAD NO
OBJECTION TO DISMISSAL.
ON JUNE 11, 1982, THE UNITED STATES COURT OF APPEALS, FOR THE
DISTRICT OF COLUMBIA CIRCUIT UPHELD THE REVOCATION OF THE UNION'S STATUS
AS WITHIN THE AUTHORITY'S "DISCRETION UNDER SECTION 7120(F) TO CHOOSE AN
APPROPRIATE REMEDY FOR ANY GIVEN VIOLATION OF SECTION 7116(B)(7) OF THE
CIVIL SERVICE REFORM ACT." THE COURT REFERRING TO SECTION 7120(F) HELD
THAT:
(IT) ENTRUSTS THE FEDERAL LABOR RELATIONS AUTHORITY WITH EXTENSIVE
AUTHORITY TO REMEDY ILLEGAL STRIKES, WORK STOPPAGES AND SLOWDOWNS BY
FEDERAL EMPLOYEE UNIONS. THE SECTION CLEARLY PERMITS THE FLRA TO EMPLOY
THE EXTREME MEASURE OF REVOKING A UNION'S EXCLUSIVE RECOGNITION STATUS--
A REMEDY UNKNOWN TO PRIVATE SECTOR LABOR LAW-- IF THE UNION COMMITS OR
CONDONES ANY OF THESE UNFAIR LABOR PRACTICIES. . .. (S1. OP. P. 78).
IN ALL THE CIRCUMSTANCES, INASMUCH AS THE UNION IS NO LONGER ENTITLED
TO RECOGNITIONAL STATUS, AND ANY RELIEF WHICH WOULD BE GRANTED IN THIS
MATTER NECESSARILY INVOLVES RIGHTS WHICH RUN TO THE EXCLUSIVE BARGAINING
REPRESENTATIVE, I AGREE WITH THE GENERAL COUNSEL THAT FURTHER PROCESSING
OF THIS MATTER WOULD NOT EFFECTUATE THE PURPOSES OF THE STATUTE.
ACCORDINGLY, IT IS RECOMMENDED THAT THE AUTHORITY ADOPT THE FOLLOWING
ORDER.
IT IS HEREBY, ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-888, BE,
AND IT, HEREBY, IS DISMISSED. 770801 0000530
18 FLRA-ALJ; CASE NO. 8-CA-720 JUNE 18, 1982
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
PACIFIC-ASIA REGION, AIR TRAFFIC CONTROL TOWER, HONOLULU, HAWAII,
RESPONDENT AND PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
AFFILIATED WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO,
CHARGING PARTY
BEFORE: ELI NASH, JR., ADMINISTRATIVE LAW JUDGE
ORDER RECOMMENDING DISMISSAL OF COMPLAINT
ON NOVEMBER 24, 1980, THE REGIONAL DIRECTOR FEDERAL LABOR RELATIONS
AUTHORITY, REGION 8 ISSUED A COMPLAINT IN THE CAPTIONED MATTER ALLEGING
THAT DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
PACIFIC-ASIA REGION, AIR TRAFFIC CONTROL CENTER, HONOLULU, HAWAII,
HEREIN CALLED RESPONDENT, UNILATERALLY IMPLEMENTED SICK LEAVE REQUESTS
PROCEDURES FOR ITS PACIFIC-ASIA REGION WITHOUT FIRST AFFORDING
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, HEREIN CALLED THE
UNION, THE OPPORTUNITY TO BARGAINING CONCERNING SUCH PROCEDURES.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON APRIL 28, 1981.
SUBSEQUENT TO THIS HEARING THE UNION ENGAGED IN A STRIKE WHICH BEGAN ON
AUGUST 3, 1981. ON OCTOBER 22, 1981, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREIN CALLED THE AUTHORITY, ISSUED A DECISION IN PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH MEBA, AFL-CIO AND
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, 7 FLRA
NO. 10 (1981), IN WHICH IT FOUND THAT THE UNION WILLFULLY AND
INTENTIONALLY VIOLATED SECTION 7116(B)(7)(A) AND (B) OF THE STATUTE. THE
AUTHORITY'S REMEDIAL ORDER INCLUDED REVOKING THE UNION'S STATUS AS AN
EXCLUSIVE BARGAINING AGENT. THE EFFECT OF THAT REVOCATION UNDER SECTION
7120(F) IS THAT THE UNION "IMMEDIATELY CEASED) TO BE LEGALLY ENTITLED
AND OBLIGATED TO REPRESENT EMPLOYEES IN THE UNIT." THUS, THE UNION IS NO
LONGER A LABOR ORGANIZATION WITHIN THE SECTION 7103(A)(4)(D) OF THE
STATUTE.
THEREAFTER, ON DECEMBER 1, 1981, THE UNDERSIGNED ISSUED AN ORDER TO
SHOW CAUSE WHY THE COMPLAINT IN THE SUBJECT CASE SHOULD NOT BE
DISMISSED. ALL PARTIES RESPONDED TO THE ORDER. THE UNION NOTED IN ITS
RESPONSE THAT THE AUTHORITY'S DECISION IN THE MATTER WAS THEN BEFORE THE
D.C. CIRCUIT COURT OF APPEALS AND REQUESTED THAT A DECISION BE RENDERED
IN THE MATTER WITH DELAY IN IMPLEMENTATION OF ANY REQUIRED CORRECTIVE
ACTION UNTIL THE UNION'S FINAL STATUS WAS DETERMINED OR, IN THE
ALTERNATIVE, DELAY THE ENTIRE MATTER UNTIL THE UNION'S FINAL STATUS WAS
DETERMINED. THE GENERAL COUNSEL MOVED FOR DISMISSAL INASMUCH AS THE
UNION WAS NO LONGER ENTITLED TO BARGAINING RIGHTS. RESPONDENT APPARENTLY
RESPONDING TO THE GENERAL COUNSEL'S REQUEST FOR DISMISSAL HAD NO
OBJECTION TO DISMISSAL.
ON JUNE 11, 1982, THE UNITED STATES COURT OF APPEALS, FOR THE
DISTRICT OF COLUMBIA CIRCUIT UPHELD THE REVOCATION OF THE UNION'S STATUS
AS WITHIN THE AUTHORITY'S "DISCRETION UNDER SECTION 7120(F) TO CHOOSE AN
APPROPRIATE REMEDY FOR ANY GIVEN VIOLATION OF SECTION 7116(B)(7) OF THE
CIVIL SERVICE REFORM ACT." THE COURT REFERRING TO SECTION 7120(F) HELD
THAT:
(IT) ENTRUSTS THE FEDERAL LABOR RELATIONS AUTHORITY WITH EXTENSIVE
AUTHORITY TO REMEDY ILLEGAL STRIKES, WORK STOPPAGES AND SLOWDOWNS BY
FEDERAL EMPLOYEE UNIONS. THE SECTION CLEARLY PERMITS THE FLRA TO EMPLOY
THE EXTREME MEASURE OF REVOKING A UNION'S EXCLUSIVE RECOGNITION STATUS--
A REMEDY UNKNOWN TO PRIVATE SECTOR LABOR LAW-- IF THE UNION COMMITS OR
CONDONES ANY OF THESE UNFAIR LABOR PRACTICES. . .. (S1. OP. P. 78).
IN ALL THE CIRCUMSTANCES, INASMUCH AS THE UNION IS NO LONGER ENTITLED
TO BARGAINING RIGHTS, AND ANY RELIEF WHICH COULD BE GRANTED IN THIS
MATTER WOULD INVOLVE BARGAINING WITH THE UNION, I AGREE WITH THE GENERAL
COUNSEL THAT FURTHER PROCESSING OF THIS MATTER WOULD NOT EFFECTUATE THE
PURPOSES OF THE STATUTE.
ACCORDINGLY, IT IS RECOMMENDED THAT THE AUTHORITY ADOPT THE FOLLOWING
ORDER.
IT IS HEREBY, ORDERED THAT THE COMPLAINT I CASE NO. 8-CA-720, BE, AND
IT, HEREBY, IS DISMISSED. 770801 0000520
18 FLRA-ALJ; CASE NO. 7-CA-824 FEBRUARY 3, 1982
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, DENVER
TOWER, COLORADO, RESPONDENT AND PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (PATCO), AFL-CIO, /1/ LOCAL 516, CHARGING PARTY
BEFORE: WILLIAM B. DEVANEY, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING, UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5 U.S.C. 7101,
ET SEQ., /2/ AND THE FINAL RULES AND REGULATIONS ISSUED THEREUNDER, 5
C.F.R. 2423.21, ET SEQ., WAS INITIATED BY A CHARGE FILED ON OCTOBER 10,
1980 (G.C. EXH. 1(A)) AND AN AMENDED CHARGE WAS FILED ON FEBRUARY 24,
1981 (G.C. EXH. 1(C)). THE CHARGE AND THE AMENDED CHARGE WERE FILED BY
THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), AFL-CIO,
LOCAL 516 AND WAS SIGNED BY COLIN A. SMITH, PRESIDENT OF PATCO LOCAL
516. A COMPLAINT AND NOTICE OF HEARING ISSUED ON MARCH 30, 1981 (G.C.
EXH. 1(D)), PURSUANT TO WHICH A HEARING WAS DULY HELD BEFORE THE
UNDERSIGNED ON JUNE 11, 1981, IN DENVER, COLORADO. AT THE CLOSE OF THE
HEARING, JULY 13, 1981, WAS FIXED AS THE DATE FOR MAILING POST-HEARING
BRIEFS AND COUNSEL FOR RESPONDENT AND FOR GENERAL COUNSEL TIMELY FILED,
OR MAILED, BRIEFS WHICH WERE RECEIVED ON OR BEFORE JULY 16, 1981.
ON AUGUST 3, 1981. PATCO CALLED AND PARTICIPATED IN A STRIKE AT FAA
FACILITIES THROUGHOUT THE UNITED STATES; ON AUGUST 14, 1981, IN CASE
NO. 3-CO-105, THE CHIEF ADMINISTRATIVE LAW JUDGE, HAVING FOUND THAT
PATCO WILLFULLY AND INTENTIONALLY CALLED AND PARTICIPATED IN A STRIKE IN
VIOLATION OF SECTION 16(B)(7)(A) AND (B) OF THE STATUTE, RECOMMENDED
THAT THE AUTHORITY ENTER AN ORDER PURSUANT TO SECTIONS 18 AND 20 OF THE
STATUTE AND SECTION 2423.29 OF THE REGULATIONS, INTER ALIA, REVOKING THE
EXCLUSIVE RECOGNITION STATUS OF THE PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH MEBA, AFL-CIO, AND THAT ORGANIZATION SHALL
IMMEDIATELY CEASE TO BE LEGALLY ENTITLED AND OBLIGATED TO REPRESENT
EMPLOYEES IN THE UNIT COVERED BY ITS MOST RECENT CONTRACT (JOINT EXHIBIT
1 IN THIS PROCEEDING); AND ON OCTOBER 22, 1981, THE AUTHORITY AFFIRMED
THE DECISION OF THE CHIEF ADMINISTRATIVE LAW JUDGE AND UNANIMOUSLY
ORDERED:
"PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 AND 7120(F) OF THE STATUTE, IT IS HEREBY ORDERED
THAT THE EXCLUSIVE
RECOGNITION STATUS OF THE PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (PATCO),
AFFILIATED WITH MEBA, AFL-CIO, BE, AND IT HEREBY IS, REVOKED. AS OF
THIS DATE, PATCO IS NOT A
LABOR ORGANIZATION UNDER SECTION 7103(A)(4) OF THE STATUTE."
ON NOVEMBER 24, 1981, THE UNDERSIGNED ISSUES AN ORDER TO SHOW CAUSE,
WHY THE COMPLAINT IN THIS CASE SHOULD NOT, PURSUANT TO THE AUTHORITY'S
DECISION REFERRED TO HEREINABOVE, BE DISMISSED. THE ORDER TO SHOW CAUSE
WAS DULY SERVED ON ALL PARTIES BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, ON NOVEMBER 24, 1981; ALL PARTIES WERE GRANTED LEAVE TO
RESPOND ON OR BEFORE DECEMBER 24, 1981; ALL PARTIES RECEIVED THE ORDER
TO SHOW CAUSE ON OR BEFORE DECEMBER 3, 1981; BUT ONLY COUNSEL FOR
GENERAL COUNSEL RESPONDED.
DISCUSSION AND CONCLUSIONS
IN JULY, 1980, A CONTROLLER'S RADAR SCREEN LOST IT OVERLAID DATA
(AUTOMATED RADAR TERMINAL SERVICE - ARTS) AND THE CONTROLLER PANICKED
AND ANNOUNCED, BOTH OVER THE RADIO TRANSMISSION NETWORK TO AIRCRAFT AND
OVER THE DENVER TOWER'S LANDLINES TO SMALLER AIRPORTS, THAT HE HAD LOST
HIS RADAR, WHEN, IN FACT, THERE WAS NO RADAR OUTAGE. ON JULY 22, 1980,
THE CONTROLLER RECEIVED A PROPOSED 5 DAY SUSPENSION FOR HIS UNAUTHORIZED
TRANSMISSION. THE PROPOSED SUSPENSION WAS GRIEVED AND THE CONTROLLER
WISHED TO HAVE MR. COLIN SMITH, PATCO PRESIDENT, REPRESENT HIM ON JULY
28, 1980; BUT MR. SMITH WAS OUT OF TOWN ON VACATION AND THE CONTROLLER
WAS REPRESENTED ON JULY 28, BY A PATCO VICE PRESIDENT. ON JULY 28, THE
PATCO REPRESENTATIVE PRESENTED A WRITTEN STATEMENT AND MADE AN ORAL
PRESENTATION; BUT INSTRUCTED THE GRIEVANT NOT TO ANSWER QUESTIONS POSED
BY A SUPERVISOR. THE FOLLOWING DAY, JULY 29, 1980, THE SUPERVISOR, WHO
HAD KNOWN THE GRIEVANT FOR ABOUT 15 YEARS, SPOKE TO THE GRIEVANT
"OFF-THE-RECORD"; TOLD THE GRIEVANT THAT HE WAS DISAPPOINTED IN THE
VICE PRESIDENT'S PRESENTATION OF GRIEVANT'S CASE; AND ASKED GRIEVANT IF
HE WOULD LIKE HIM TO INTERVENE IN THE MATTER TO SEE IF HE COULD GET THE
SUSPENSION REDUCED OR REMANDED. GRIEVANT WAS DESIROUS OF ANY ASSISTANCE
THE SUPERVISOR COULD PROVIDE AND, ACCORDINGLY, THE SUPERVISOR SPOKE TO
THE TOWER CHIEF. THE TOWER CHIEF FELT THAT THE WRITTEN "DIDN'T DEAL WITH
THE ISSUE OR GET DOWN TO IT AS FAR AS RESOLVING IT" AND TOLD THE
SUPERVISOR THAT PERHAPS WHEN MR. SMITH CAME BACK THEY COULD GET TOGETHER
AND TRY TO RESOLVE THE MATTER. WHEN MR. SMITH RETURNED FROM VACATION HE
SPOKE TO THE TOWER CHIEF WHO TOLD HIM THAT HE "WANTED TO GET MORE
INFORMATION" FROM THE GRIEVANT AND A FUTURE MEETING WAS SET FOR AUGUST
20. AT THE AUGUST 20 MEETING GRIEVANT WAS REPRESENTED BY MR. SMITH AND
GRIEVANT RESPONDED TO THE QUESTIONS ASKED AND, BY LETTER DATED AUGUST
27, 1980 (RES. EXH. 1), THE PROPOSED FIVE-DAY SUSPENSION WAS REDUCED TO
A LETTER OF REPRIMAND.
WITHOUT RESOLVING THE FACTUAL CONFLICTS, IT IS PLAIN THAT THE
GRAVAMEN OF THE COMPLAINT IS THE ALLEGATION THAT RESPONDENT DEMEANED THE
PERFORMANCE OF A REPRESENTATIVE OF PATCO IN HIS CONDUCT OF A GRIEVANCE.
GENERAL COUNSEL FILED A RESPONSE TO THE ORDER TO SHOW CAUSE (NEITHER THE
CHARGING PARTY, PATCO, NOR THE RESPONDENT RESPONDED) IN WHICH IT WAS
STATED, IN PART, THAT:
" . . . ALTHOUGH THESE SECTION 7116(A)(1) ALLEGATIONS CONCEDEDLY
TOUCH UPON THE UNION'S STATUS
AS BARGAINING REPRESENTATIVE, THEIR THRUST IS TO BASIC EMPLOYEE
RIGHTS UNDER THE STATUTE TO
ENGAGE IN UNION ACTIVITY WITHOUT COERCIVE INTERFERENCE. SINCE THESE
ARE EMPLOYEE RIGHTS
RATHER THAN RIGHTS ACCORDED TO THE UNION, CASE 7-CA-824 SHOULD
PROCEED TO
DETERMINATION." (GENERAL COUNSEL'S RESPONSE TO ORDER TO SHOW CAUSE,
DATED DECEMBER 7, 1981).
NEITHER THE ALLEGATIONS OF THE COMPLAINT NOR THE RECORD DEMONSTRATES
ANY INTERFERENCE WITH ANY BASIC EMPLOYEE RIGHT. THERE WAS NO
INTERFERENCE WITH THE RIGHT OF ANY EMPLOYEE TO FILE AND TO PROCESS
GRIEVANCES; NO THREAT OF ADVERSE ACTION FOR HAVING DONE SO; AND NO
INTERFERENCE WITH THE EMPLOYEE'S RIGHT TO HAVE HIS GRIEVANCE HANDLED BY
THE UNION. INDEED, THE UNION REPRESENTED THE EMPLOYEE AT THE SECOND
HEARING. IT IS ALLEGED, HOWEVER, THAT A PARTICULAR UNION REPRESENTATIVE
WAS DEMEANED FOR HIS CONDUCT OF THE FIRST HEARING. THAT UNION, PATCO, IS
NO LONGER A LABOR ORGANIZATION UNDER SECTION 3(A)(4) OF STATUTE AND ITS
EXCLUSIVE RECOGNITION STATUS HAS BEEN REVOKED. ACCORDINGLY, IT WOULD NOT
EFFECTUATE THE PURPOSE OF THE STATUTE TO RESOLVE THE ALLEGATIONS OF THE
COMPLAINT WHICH, IF TRUE, CONCERN THE STATUS OF PATCO AS EXCLUSIVE
BARGAINING REPRESENTATIVE AND PATCO IS NO LONGER A LABOR ORGANIZATION
WITHIN THE MEANING OF SECTION 3(A)(4) OF THE STATUTE AND ITS EXCLUSIVE
RECOGNITION STATUS HAS BEEN REVOKED. THEREFORE, IT IS RECOMMENDED THAT
THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
THE COMPLAINT IN CASE NO. 7-CA-824 BE, AND THE SAME IS HEREBY,
DISMISSED.
/1/ THIS IS THE DESIGNATION OF THE CHARGING PARTY AS IT APPEARS ON
THE CHARGE, THE COMPLAINT, AND BRIEFS OF THE PARTIES. IN ACTUALITY, AS
SHOWN BY JOINT EXHIBIT 1, THE FULL AND CORRECT DESIGNATION OF THE
CHARGING PARTY IS "PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
AFFILIATED WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO."
/2/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE HEREINAFTER
ARE, ALSO, REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71" OF THE
STATUTE REFERENCE, E.G., SECTION 7116(A)(1) WILL BE REFERRED TO, SIMPLY,
AS "16(A)(1)." 770801 0000510
18 FLRA-ALJ; CASE NO. 7-CA-823 FEBRUARY 16, 1982
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, DENVER
TOWER, COLORADO, RESPONDENT AND LOCAL 516, PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, AFL-CIO, CHARGING PARTY
BEFORE: SAMUEL A. CHIATOVITZ, 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., 92 STAT. 1191 (HEREINAFTER REFERRED TO AS THE STATUTE)
AND THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
(FLRA), 5 C.F.R.CHAPTER XIV, SECTION 2410 ET SEQ.
PURSUANT TO A CHARGE FILED ON OCTOBER 20, 1980 BY PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, LOCAL 516, AFL-CIO (HEREINAFTER CALLED
PATCO) AGAINST U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, DENVER TOWER, COLORADO (HEREINAFTER CALLED FAA AND/OR
RESPONDENT) THE GENERAL COUNSEL OF THE FLRA, BY THE DIRECTOR OF REGION
4, ISSUED A COMPLAINT AND NOTICE OF HEARING ON FEBRUARY 27, 1981. THE
COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE
STATUTE BY ADVISING A PATCO REPRESENTATIVE THAT FAA WOULD ELIMINATE "ONE
WAY SWAPS", A WORKING CONDITION UNDER WHICH CONTROLLERS MADE UNILATERAL
SHIFT CHANGES BETWEEN ASSIGNED SHIFTS, IF PATCO INSISTED ON PURSUING A
CERTAIN GRIEVANCE. FAA FILED AN ANSWER DENYING THAT FAA HAD VIOLATED THE
STATUTE.
A HEARING IN THIS MATTER WAS CONDUCTED BEFORE THE UNDERSIGNED IN
DENVER, COLORADO. /1/ THE GENERAL COUNSEL OF THE FLRA, RESPONDENT AND
PATCO WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE AND TO ARGUE
ORALLY. POST HEARING BRIEFS WERE FILED AND HAVE BEEN FULLY CONSIDERED.
/2/
BASED UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
PATCO WAS AT ALL TIMES MATERIAL HEREIN THE COLLECTIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF EMPLOYEES THAT INCLUDED THE AIR TRAFFIC
CONTROLLERS EMPLOYED BY FAA AT THE DENVER TOWER. /3/
"ONE WAY SWAPS" AND THE FITCH GRIEVANCE
A PROCEDURE EXISTED AT DENVER TOWER FOR SEVERAL YEARS INVOLVING
UNILATERAL SHIFT TRANSFERS BY AIR TRAFFIC CONTROLLERS. AN EMPLOYEE
WISHING TO TRANSFER FROM HIS ASSIGNED SHIFT TO A DIFFERENT SHIFT NEED
ONLY OBTAIN PERMISSION FROM MANAGEMENT TO DO SO. THIS PRACTICE, CALLED
"ONE WAY SWAPS" INVOLVES UNILATERAL TRANSFERS BY CONTROLLERS RATHER THAN
TRADING OF SHIFTS BETWEEN CONTROLLERS. THE FAA/PATCO CONTRACT IS SILENT
CONCERNING ONE WAY SWAPS.
ON SEPTEMBER 12, 1980, PATCO FILED A GRIEVANCE COMPLAINING THAT
DENVER TOWER MANAGEMENT HAD SOLICITED AN AIR TRAFFIC CONTROLLER NAMED
FITCH TO REQUEST A ONE WAY SWAP FROM ONE SHIFT TO ANOTHER IN ORDER TO
AVOID PAYING OVERTIME TO FITCH. THE GRIEVANCE WAS DENIED AT THE LOCAL
DENVER CONTROL TOWER LEVEL BY A LETTER DATED SEPTEMBER 30, 1980. THE
GRIEVANCE WAS THEN FORWARDED TO THE FAA REGIONAL LEVEL WHERE ON OCTOBER
8, 1980 IT WAS PENDING BEFORE MR. WALTER GEORGE, FAA REGIONAL LABOR
RELATIONS CHIEF.
OCTOBER 8, 1980 MEETING:
ON OCTOBER 8, 1980, PATCO OFFICERS COLIN SMITH AND DAVID RAMBEAU
ATTENDED A LABOR-MANAGEMENT RELATIONS MEETING IN THE DENVER TOWER
CHIEF'S OFFICE WITH DEPUTY CHIEF WALTER RUSCH AND ASSISTANT CHIEF PAUL
CAZZANIGI. AT THE CONCLUSION OF THE FORMAL PART OF THE MEETING, PATCO
REPRESENTATIVE SMITH ASKED RUSCH AND CAZZINIGI IF THEY WANTED TO RAISE
ANY ADDITIONAL MATTERS THEY WISHED TO DISCUSS. RUSCH REPLIED THAT HE HAD
SPOKEN TO WALLY GEORGE OF THE FAA REGIONAL LABOR RELATIONS BRANCH AND
GEORGE SEEMED CONCERNED THAT THE PRACTICE OF ONE-WAY SWAPS WAS NOT
ADDRESSED IN THE CONTRACT AND THAT IT IS ENTIRELY POSSIBLE THAT IF THE
GRIEVANCE WERE PURSUED IT WOULD RESULT IN HAVING TO DO AWAY WITH ONE-WAY
SWAPS AT THE FACILITY. /4/
DISCUSSION AND CONCLUSIONS
GENERAL COUNSEL OF THE FLRA CONTENDS THAT FAA VIOLATED SECTION
7116(A)(1) OF THE STATUTE WHEN RUSCH ALLEGEDLY THREATENED TO DO AWAY
WITH "ONE WAY SWAPS" IF PATCO PURSUED THE FITCH GRIEVANCE FURTHER. THIS
CONTENTION IS REJECTED. RATHER, IT IS CONCLUDED THAT RUSCH'S STATEMENT
WAS MERELY RESTATING GEORGE'S OPINION OF A POSSIBLE LEGAL RESULT IF THE
FITCH GRIEVANCE WERE PURSUED TO RESOLUTION BY PATCO. THE FACT THAT THE
CONVERSATION TOOK PLACE AT THE END OF THE LABOR MANAGEMENT MEETING, THE
INFORMAL NATURE OF THE CONVERSATION AND THE FACT THAT THE GRIEVANCE WAS
ALREADY IN THE HANDS OF THE FAA REGIONAL OFFICE, ALL INDICATE THAT
RUSCH'S STATEMENT WAS SOLELY A PREDICTION OF A POSSIBLE LEGAL RESULT AND
WAS NOT A THREAT. IT IS CONCLUDED THAT, IN THE CIRCUMSTANCES NOTED
ABOVE, RUSCH'S COMMENT WOULD NOT HAVE HAD THE FORESEEABLE RESULT OF
INTERFERING WITH, RESTRAINING, OR COERCING ANY REASONABLE EMPLOYEE IN
THE EXERCISE OF ANY RIGHT PROTECTED BY THE STATUTE AND THUS DID NOT
CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE. CF.
FEDERAL MEDIATION AND CONCILIATION SERVICE, OALJ-81-045 (1981).
ACCORDINGLY BECAUSE IT IS CONCLUDED THAT RESPONDENT DID NOT VIOLATE
SECTION 7116(A)(1) OF THE STATUTE, I RECOMMEND THAT THE FLRA ADOPT THE
FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-823 BE AND
HEREBY IS, DISMISSED.
/1/ ON THE SAME DAY A HEARING WAS HELD IN DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, DENVER TOWER, COLORADO
AND LOCAL 516, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
AFL-CIO, CASE NO. 7-CA-822. CASES NOS. 7-CA-822 AND 7-CA-823 WERE NOT
CONSOLIDATED FOR TRIAL. ALTHOUGH IT WAS INDICATED ON THE RECORD THAT ONE
DECISION WOULD ISSUE COVERING BOTH CASES, IT IS NOW DETERMINED THAT
BECAUSE THE CASES WERE NOT CONSOLIDATED, A SEPARATE DECISION SHOULD
ISSUE FOR EACH CASE. IT IS NOTED, HOWEVER, THAT THE FORMAL PAPERS IN
CASE NO. 7-CA-822 ARE BOUND WITH THE FORMAL PAPERS IN CASE NO.
7-CA-823.
/2/ ON NOVEMBER 20, 1981 THE UNDERSIGNED ISSUED AN ORDER TO SHOW
CAUSE GRANTING ALL PARTIES UNTIL DECEMBER 21, 1981 TO SUBMIT BRIEFS AND
STATEMENTS OF POSITION WITH RESPECT TO WHETHER, IN LIGHT OF PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL AVIATION
ADMINISTRATION, 7 FLRA NO. 10 (1981), THE COMPLAINT IN THE SUBJECT CASE
SHOULD BE DISMISSED. GENERAL COUNSEL FILED A RESPONSE WHEREIN IT URGED
THAT THE SUBJECT COMPLAINT SHOULD NOT BE DISMISSED SINCE THE GRAVAMAN OF
THE COMPLAINT IS A VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE WITH
RESPECT TO A THREAT OF REPRISAL AGAINST EMPLOYEES FOR ENGAGING IN A
PROTECTED ACTIVITY. NO OTHER PARTY FILED A RESPONSE. AFTER DUE
CONSIDERATION IT IS CONCLUDED THAT PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION AND FEDERAL AVIATION ADMINISTRATION, SUPRA, DOES NOT COMPEL
DISMISSAL OF THE SUBJECT COMPLAINT.
/3/ IT IS NOTED THAT PATCO IS NO LONGER THE COLLECTIVE BARGAINING
REPRESENTATIVE FOR FAA'S CONTROLLERS AND IS NO LONGER A LABOR
ORGANIZATION. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND
FEDERAL AVIATION ADMINISTRATION, SUPRA.
/4/ THE OCTOBER 8 CONVERSATION BETWEEN RUSCH AND CAZZANIGI AND SMITH
AND RAMBEAU IS THE INCIDENT THAT ALLEGEDLY CONSTITUTES THE VIOLATION OF
THE STATUTE. WITH RESPECT TO THIS INCIDENT I CREDIT MR. RUSCH'S VERSION
BECAUSE HE SEEMED A MORE RELIABLE WITNESS AND HIS TESTIMONY WAS MORE
CONSISTENT WITH THE SURROUNDING CIRCUMSTANCES.
ROBERT BLUNK
FOR THE RESPONDENT
GARY EADS
FOR THE CHARGING PARTY
GAVIN K. LODGE, ESQ.
JAMES GONZALES, ESQ.
FOR THE GENERAL COUNSEL, FLRA 770801 0000500
18 FLRA-ALJ; CASE NO. 5-CA-466 SEPTEMBER 11, 1981
FEDERAL AVIATION ADMINISTRATION, FARMINGTON, MINNESOTA, RESPONDENT
AND LOCAL 305, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, MEBA,
AFL-CIO, CHARGING PARTY
BEFORE: JOHN H. FENTON, CHIEF ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, (HEREINAFTER THE "STATUTE"), 92 STAT. 1191, 5 U.S.C.
7101 ET SEQ. THE PROCEEDING WAS INITIATED BY COMPLAINT AND NOTICE OF
HEARING ISSUED BY THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS
AUTHORITY, CHICAGO REGION, DATED JUNE 23, 1980 ON BEHALF OF LOCAL 305,
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, MEBA, AFL-CIO AGAINST
THE FEDERAL AVIATION ADMINISTRATION, FARMINGTON, MINNESOTA.
THE COMPLAINT CHARGED A VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF
THE STATUE ON THE BASIS THAT ON OR ABOUT MARCH 21, 1980, THE RESPONDENT
DISCONTINUED THE PRACTICE OF GRANTING OVERTIME IN TWO HOUR INCREMENTS
FOR AIR TRAFFIC CONTROLLERS WHO WERE HELD OVER BEYOND THEIR SHIFTS FOR
PRE-DUTY FAMILIARIZATION BRIEFINGS AND/OR FOR LATE RELIEF, WITHOUT
FURNISHING THE UNION NOTICE AND AN OPPORTUNITY TO BARGAIN CONCERNING
SUCH CHANGE.
A HEARING WAS HELD IN HASTINGS, MINNESOTA ON SEPTEMBER 4, 1980. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE. UPON THE BASIS OF
THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, AND BRIEFS SUBMITTED BY THE REPRESENTATIVES OF THE PARTIES, I
MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDED ORDER.
FINDINGS OF FACT
1. AT ALL RELEVANT TIMES PATCO LOCAL 305 HAS BEEN THE REPRESENTATIVE
OF CONTROLLERS AT THE MINNESOTA AIR ROUTE TRAFFIC CONTROL CENTER IN
FARMINGTON, MINNESOTA, WHERE THE UNFAIR LABOR PRACTICES ALLEGEDLY
OCCURRED. SINCE MARCH OF 1978, PATCO AND THE FEDERAL AVIATION
ADMINISTRATION HAVE BEEN PARTIES TO A NATIONWIDE COLLECTIVE BARGAINING
AGREEMENT. IN ACCORDANCE WITH THE PATCO-FAA AGREEMENT, CONSULTATIONS AT
THE LOCAL LEVEL WERE CONDUCTED BETWEEN THE FACILITY CHIEF, MICHAEL
CIANCANELLI AND THE LOCAL UNION PRESIDENT, TOM COLLOPY. FOR REASONS
UNEXPLAINED IN THE RECORD, LOCAL CONSULTATIONS WERE PLAGUED BY ACRIMONY
AND STEADILY DETERIORATED. MR. COLLOPY AT THE BEHEST OF THE LOCAL UNION
EXECUTIVE BOARD DECIDED TO ELEVATE CONSULTATIONS TO THE REGIONAL LEVEL.
2. ON FEBRUARY 28, 1980, MR. COLLOPY ADVISED MR. CIANCANELLI THAT
LABOR-MANAGEMENT RELATIONS WERE ELEVATED TO THE REGIONAL LEVEL IN
ACCORDANCE WITH ARTICLE 12, SECTION 2 OF THE PATCO-FAA AGREEMENT (G.C.
EXH. #2). UPON RECEIPT OF THE LETTER, MR. CIANCANELLI CONTACTED THE FAA
REGIONAL OFFICE AND WAS ADVISED THAT THE ATTEMPT TO ELEVATE
CONSULTATIONS TO THE REGIONAL LEVEL WAS IMPROPER AND THAT HE
(CIANCANELLI) SHOULD CONTINUE CONSULTATIONS AT THE LOCAL LEVEL.
3. FOR A PERIOD OF SEVERAL YEARS WORK SCHEDULES, BY CONTRACT, BEGAN
ON THE HOUR FOR ALL SHIFTS. HOWEVER, CONTROLLERS USUALLY REPORTED TO
WORK A FEW MINUTES BEFORE THE BEGINNING OF A SHIFT FOR THEIR PRE-DUTY
FAMILIARIZATION BRIEFING BEFORE THE SHIFT ACTUALLY STARTED.
CUSTOMARILY, CONTROLLERS WHO WERE BEING RELIEVED WERE SOMETIMES ALLOWED
TO LEAVE PRIOR TO THE END OF THEIR ASSIGNED SHIFTS. THIS TRADE-OFF
BETWEEN EARLY ARRIVALS AND DEPARTURES RESULTED IN THE ELIMINATION OF THE
NECESSITY FOR AN OVERLAPPING WATCH SCHEDULE AND OVERTIME, AND WAS
REFLECTED IN A MEMORANDUM OF UNDERSTANDING BETWEEN THE PARTIES.
4. SHORTLY AFTER THE ELEVATION OF CONSULTATIONS TO THE REGIONAL
LEVEL, MANAGEMENT BECAME AWARE OF THE POSSIBILITY THAT CONTROLLERS WOULD
BEGIN TO REPORT TO WORK ON TIME RATHER THAN EARLY AND THAT RELIEVED
CONTROLLERS HELD OVER BEYOND THEIR ASSIGNED SHIFTS WOULD REQUEST
OVERTIME. MR. CIANANELLI SOUGHT ADVICE FROM THE FAA REGIONAL OFFICE. HE
WAS ADVISED BY MR. ALTIZER, SECTION CHIEF AT THE DES PLAINES REGIONAL
OFFICE, TO GRANT ALL REQUESTS FOR OVERTIME. IT WAS THE POSITION OF MR.
ALTIZER THAT EVEN THOUGH THIS PRACTICE WOULD BE CONTRARY TO ESTABLISHED
FAA POLICY, /1/ IT WOULD BE BETTER TO ALLOW THE OVERTIME BECAUSE OF THE
STRAINED LABOR-MANAGEMENT RELATIONS AT THE FACILITY. HE FURTHER ADVISED
THAT WHEN CONFRONTED WITH THE SAME SITUATION AT ANOTHER LOCATION, THE
PROBLEM HAD RESOLVED ITSELF WITHIN A WEEK BECAUSE CONTROLLERS REQUESTING
THE OVERTIME WERE REQUIRED TO WORK THE ADDITIONAL TIME.
5. ON OR ABOUT MARCH 3, 1980 CONTROLLERS AT THE FACILITY BEGAN TO
REPORT TO WORK ON TIME RATHER THAN EARLY. AS A CONSEQUENCE OF PRE-DUTY
BRIEFINGS, SOME CONTROLLERS WERE HELD BEYOND THE END OF THEIR REGULAR
SHIFTS AND REQUESTED THAT THEY BE ALLOWED TWO HOURS OVERTIME IN
ACCORDANCE WITH ARTICLE 40, SECTION 5 OF THE NEGOTIATED AGREEMENT. THIS
SECTION PROVIDES THAT "(WHENEVER AN EMPLOYEE IS HELD ON DUTY BEYOND HIS
REGULAR SHIFT, HE SHALL BE GUARANTEED A MINIMUM OF TWO HOURS OF WORK."
(G.C. EXH. #1(H)).
6. PURSUANT TO THE DIRECTION OF THE FAA REGIONAL OFFICE, MR.
CIANCANELLI INSTRUCTED THE ASSISTANT CHIEFS AND OTHER SUPERVISORY
PERSONNEL TO GRANT OVERTIME IN TWO HOUR INCREMENTS TO ANY CONTROLLER WHO
WAS HELD BEYOND HIS REGULAR SHIFT AND REQUESTED THE OVERTIME. CONTRARY
TO THE EXPECTATIONS OF MANAGEMENT, THE OVERTIME REQUESTS DID NOT
DIMINISH WITHIN A WEEK BUT RATHER THEIR INCIDENCE INCREASED. IN
ANTICIPATION OF THE INCREASED OVERTIME, MR. CIANCANELLI DEVELOPED AN
OVERLAPPING WATCH SCHEDULE WHICH WOULD ELIMINATE THE OVERTIME PROBLEM.
ON AT LEAST TWO OCCASIONS BETWEEN MARCH 10, 1980 AND MARCH 21, 1980, MR.
CIANCANELLI ATTEMPTED TO CONSULT WITH MR. COLLOPY ON THE PROPOSED
OVERLAPPING WATCH SCHEDULE. (G.C. EXH. 3 & 4). MR. COLLOPY REFUSED TO
CONSULT WITH LOCAL MANAGEMENT.
7. ON OR ABOUT MARCH 14, 1980, MR. CIANCANELLI CONTACTED THE FAA
REGIONAL OFFICE. HE ADVISED MR. ALTIZER THAT HE WAS ENCOUNTERING FISCAL
PROBLEMS AND DID NOT HAVE ENOUGH MONEY TO PAY FOR THE OVERTIME REQUESTS
FOR THE REMAINDER OF THE QUARTER. MR. ALTIZER CONCURRED IN THE DECISION
TO DISCONTINUE THE PRACTICE OF GRANTING THE OVERTIME REQUESTS.
8. ON MARCH 21, 1980, MR. CIANCANELLI BY MEMORANDUM, ADVISED ALL
ASSISTANT CHIEFS THAT THE PRACTICE OF GRANTING TWO HOUR INCREMENTS OF
OVERTIME TO CONTROLLERS WHO WERE HELD OVER BEYOND THEIR REGULAR SHIFTS
WAS TO BE DISCONTINUED EFFECTIVE IMMEDIATELY (JOINT EXH. #1). ALL
REQUESTS FOR OVERTIME ON OR AFTER MARCH 22 WERE DENIED. CONTROLLERS WERE
TOLD THEY WOULD BE PAID ONLY FOR THE TIME THAT THEY HAD ACTUALLY BEEN
HELD OVER AND THAT THEY WOULD NOT BE ALLOWED TO REMAIN ON THE JOB FOR
TWO ADDITIONAL HOURS. MR. CIANCANELLI MADE AND IMPLEMENTED THE DECISION
TO STOP HONORING THE REQUESTS FOR OVERTIME WITHOUT CONSULTATION WITH THE
UNION. ODDLY, FIVE DAYS AFTER THE DECISION WAS MADE LOCAL MANAGEMENT
ATTEMPTED TO DELIVER TO COLLOPY AN ELABORATE SHIFT CHANGE PROPOSAL
DESIGNED TO MINIMIZE OVERTIME, BUT IT SAID NOTHING ABOUT THE IMMINENT
EXHAUSTION OF THE OVERTIME BUDGET.
9. THERE IS CONFLICTING TESTIMONY AS TO WHETHER UNION OFFICIALS AT
THE REGIONAL LEVEL WERE ADVISED OF THE DECISION TO DISCONTINUE THE
PRACTICE. MR. ALTIZER TESTIFIED THAT AFTER HIS CONVERSATION WITH MR.
CIANCANELLI, HE TELEPHONED MR. PATRICK DOYLE, WHO AT THE TIME WAS ACTING
ASSISTANT REGIONAL VICE PRESIDENT FOR THE UNION. MR. ALTIZER FURTHER
TESTIFIED THAT HE ADVISED MR. DOYLE OF THE DECISION TO DISCONTINUE THE
PRACTICE AND THE REASONS FOR BOTH THE INITIAL IMPLEMENTATION OF THE
PRACTICE AND THE REASONS FOR BOTH THE INITIAL IMPLEMENTATION OF THE
PRACTICE AND ITS DISCONTINUANCE. ON THE OTHER HAND, MR. DOYLE TESTIFIED
THAT HE DID NOT RECEIVE A CALL FROM R. ALTIZER ON MARCH 14TH BECAUSE
SIGNIFICANT CONVERSATIONS ARE ROUTINELY NOTED AND THAT HIS RECORDS DID
NOT SHOW ANY CONVERSATIONS WITH FAA OFFICIALS BETWEEN FEBRUARY 28, 1980
AND MARCH 21, 1980, WHEN HE TALKED TO MR. ALTIZER. BOTH MEN IMPRESSED ME
AS TRUTHFUL. I CONCLUDE THAT EITHER THE CONVERSATION TOOK PLACE ON MARCH
21, WHEN THE REVERSAL OF OVERTIME POLICY WAS ALREADY UNDERWAY, OR THAT
MR. ALTIZER MERELY MADE A PASSING REFERENCE TO THE CONTEMPLATED CHANGE,
ONE WHICH DID NOT REGISTER WITH MR. DOYLE. RESPONDENT DID NOT
ACKNOWLEDGE AN OBLIGATION TO BARGAIN AT THE REGIONAL LEVEL, SO THAT
THERE WOULD HAVE BEEN NO REASON TO TELL MR. DOYLE EXCEPT FOR
INFORMATIONAL PURPOSES. MR. ALTIZER'S VERSION IS THAT MR. DOYLE MERELY
ACKNOWLEDGED RECEIPT OF THE INFORMATION, INDICATING THAT HE DID NOT, IN
FACT, FULLY APPRECIATE WHAT HE HAD BEEN TOLD. IF A BARGAINING OBLIGATION
EXISTED AT THAT LEVEL, I AM SATISFIED THAT IT WAS NOT MET. SURELY, MR.
ALTIZER DID NOT DESIRE TO CONSULT ON THE QUESTION AND CERTAINLY MR.
DOYLE DID NOT RECEIVE THE INFORMATION AS INDICATING A WILLINGNESS TO
CONSULT AGAINST A BACKDROP OF UNWILLINGNESS TO CONSULT AT THAT LEVEL.
10. FOLLOWING THE IMPLEMENTATION ON THE CHANGED POLICY REGARDING
OVERTIME, NUMEROUS EMPLOYEES FILED IDENTICAL GRIEVANCES ALLEGING THAT
THE REFUSALS OF REQUESTS FOR TWO HOURS OF OVERTIME FOR EMPLOYEES HELD
BEYOND THEIR REGULAR SHIFTS VIOLATED THE CONTRACT AND "REPRESENTED) A
DEPARTURE FROM THE POLICY THAT HAS BEEN IN FORCE AT THIS FACILITY.)
(G.C. EXHS. 5, 6, 7, 8, 9). THE UNION ASSISTED INDIVIDUAL EMPLOYEES BY
APPRISING THEM OF THEIR RIGHTS UNDER THE CONTRACT AND DEVISING A FORM
FOR FILING THEIR GRIEVANCES. THE UNION AS THE EXCLUSIVE REPRESENTATIVE
OF THE EMPLOYEES HAD THE RIGHT UNDER THE CONTRACT TO INVOKE THE
GRIEVANCE PROCEDURE. HOWEVER, THE UNION DID NOT FILE A GRIEVANCE IN ITS
REPRESENTATIVE CAPACITY BUT RATHER SOUGHT THE VINDICATION OF ITS RIGHTS
UNDER THE STATUTE BY FILING THE INSTANT UNFAIR LABOR PRACTICE CHARGE.
DISCUSSION AND CONCLUSIONS
PRELIMINARILY, RESPONDENT CONTENDS THAT THIS PROCEEDING IS BARRED BY
SECTION 7116(D) BECAUSE GRIEVANCES FILED BEFORE THE UNFAIR LABOR
PRACTICE CHARGE RAISE THE SAME ISSUE, /2/ AND FURTHER, THAT THE ALLEGED
VIOLATION IS BASED ON DIFFERENCES IN CONTRACT INTERPRETATION WHICH
SHOULD BE RESOLVED BY AN ARBITRATOR RATHER THAN THIS AGENCY.
EVEN IF ONE VIEWS THE GRIEVANCES AS HAVING BEEN FILED BY THE UNION,
(THROUGH FRONTING MEMBERS), THE GRIEVANCES DID NOT RAISE THE ISSUE OF
WHETHER RESPONDENT UNILATERALLY CHANGED ITS OVERTIME POLICY IN VIOLATION
OF THE STATUTE. RATHER, THEY CLAIMED THAT DISALLOWANCE OF OVERTIME IN
TWO HOUR INCREMENTS WAS A VIOLATION OF THE CONTRACT AND A DEPARTURE FROM
POLICY. THE LANGUAGE USED APPEARS TO BE A DELIBERATE EFFORT NOT TO RAISE
THE ISSUE WHETHER THAT DEPARTURE IN POLICY WAS ILLEGAL, AND AN
ARBITRATOR WOULD NOT BE REQUIRED TO RESOLVE THE ISSUE WHETHER THE
DEPARTURE WAS VIOLATIVE OF SECTION 7116(A)(5) AND (1). THUS, I CONCLUDE
THAT THE ISSUE BEFORE ME HAS NOT BEEN RAISED IN THE GRIEVANCE
PROCEEDINGS, AND THE CHARGING PARTY IS NOT PRECLUDED FROM RAISING IT IN
THIS FORUM. /3/ MOREOVER, THE ALLEGED VIOLATION IS NOT GROUNDED ON A
MERE DIFFERENCE IN CONTRACT INTERPRETATION, BUT ON A CHANGE IN PRACTICE
MADE WITHOUT AFFORDING THE UNION ITS STATUTORY RIGHT TO AN OPPORTUNITY
TO CONSULT ABOUT SUCH CHANGE. INDEED, RESPONDENT CONTENDS THAT ITS MARCH
3 CHANGE WAS A DEPARTURE FROM THE CONTRACT AND ITS MARCH 21 ABANDONMENT
OF THAT PRACTICE WAS A RETURN TO AN OLD PRACTICE CONSISTENT WITH THE
CONTRACT. HAVING ACKNOWLEDGED THAT THE TERM AND CONDITION ESTABLISHED IN
THE INTERIM VIOLATED THE CONTRACT, IT CANNOT BE HEARD TO ARGUE THAT ITS
UNILATERAL RETURN TO THE EARLIER PRACTICE IS BEYOND THE REACH OF THE
STATUTE BECAUSE THE DISPUTE IS ONLY A DISAGREEMENT OVER THE MEANING OF
THE CONTRACT.
ON MARCH 3, RESPONDENT DEPARTED FROM ITS PRACTICE OF PAYING
CONTROLLERS WHO WORKED BEYOND THE END OF THEIR SHIFTS, BECAUSE OF THE
"LATE" ARRIVAL OF RELIEVING CONTROLLERS, OVERTIME IN SIX-MINUTE
INCREMENTS. IN AN EFFORT TO PLACATE ITS ANGRY EMPLOYEES, AND IN THE
BELIEF THAT THE DEMANDS FOR OVERTIME IN TWO HOUR SEGMENTS WOULD BE
SHORT-LIVED, IT BEGAN TO HONOR SUCH REQUESTS. ITS PLOY BOOMERANGED, AND
OVERTIME COSTS SOON THREATENED TO EXHAUST THE BUDGET ALLOCATION FOR THAT
PURPOSE. FOR ALMOST THREE WEEKS, ITS PRACTICE AMOUNTED TO AN IMPLICIT
ADMISSION THAT "HELD BEYOND THE REGULAR SHIFT" APPLIED TO LATE-ARRIVING
RELIEF AS WELL AS MANAGEMENT ORDERS BASED ON WEATHER OR TRAFFIC
CONDITIONS. ON MARCH 21 OR 22 IT UNILATERALLY RETURNED TO ITS PREVIOUS
PRACTICE OF DENYING REQUESTS FOR OVERTIME IN TWO-HOUR INCREMENTS WHERE
THE WORK IN EXCESS OF EIGHT HOURS WAS CAUSED BY THE FAILURE OF THE
RELIEVING CONTROLLER TO ARRIVE BEFORE THE SHIFT'S END FOR HIS BRIEFING.
RESPONDENT THEREBY CREATED A NEW WORKING CONDITION FOR ALL
CONTROLLERS AT THE FACILITY. WHILE ITS DURATION WAS NOT PROLONGED, IT
WAS OF BROAD SCOPE AND WAS AUTHORIZED AT THE REGIONAL LEVEL, ONE STEP
SHORT OF NATIONAL HEADQUARTERS. HAVING ESTABLISHED A NEW WORKING
CONDITION, IT WAS NOT FREE TO ABANDON IT WITHOUT CONSULTING WITH THE
UNION. /4/ AS NOTED, RESPONDENT CONTINUED TO ATTEMPT TO CONSULT WITH THE
LOCAL UNION ABOUT SHIFT CHANGES ADDRESSED TO THIS OVERALL PROBLEM,
WITHOUT EVER INDICATING AN INTENTION TO CHANGE ITS OVERTIME POLICY, BUT
NEVERTHELESS ARGUES THAT IT GAVE NOTICE AT THE REGIONAL LEVEL. THUS
RESPONDENT CONCEDES IT GAVE NO NOTICE AT THE BARGAINING LEVEL IT
INSISTED WAS APPROPRIATE, WHILE DEFENDING ON THE GROUND THAT IT GAVE
NOTICE AT A LEVEL IT CONTENDS WAS INAPPROPRIATE. IT APPEARS TO ASSERT
THAT IT THEREBY ESCAPES ALTOGETHER ITS DUTY TO CONSULT. I NEED NOT
DECIDE THE CONTRACTUAL ISSUE WHETHER THE DUTY TO CONSULT WAS, IN THESE
CIRCUMSTANCES, ELEVATED TO THE REGIONAL LEVEL, FOR IT IS CLEAR THE
OBLIGATION WAS NOT DISCHARGED AT EITHER LEVEL.
THE UNLAWFUL DISCONTINUANCE OF THE PRACTICE OF PAYING CONTROLLERS IN
TWO-HOUR INCREMENTS OBVIOUSLY DEPRIVED THEM OF COMPENSATION TO WHICH
THEY WERE ENTITLED, AND A FULL AND COMPLETE REMEDY OF THE UNFAIR LABOR
PRACTICE REQUIRES THAT CONTROLLERS ADVERSELY AFFECTED BE MADE WHOLE.
THUS ANY CONTROLLER WHO REQUESTED AND WAS REFUSED TWO-HOURS OF OVERTIME
WHEN HELD BEYOND THE END OF HIS REGULAR SHIFT FOR PURPOSES OF BRIEFING
HIS REPLACEMENT IS ENTITLED TO TWO HOURS PAY AT OVERTIME RATES FOR EACH
SUCH OCCASION FROM MARCH 22, 1980 UNTIL SUCH TIME A RESPONDENT RESCINDS
ITS DIRECTIVE OF MARCH 21, 1980.
HAVING CONCLUDED THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND
(5), I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
PURSUANT TO 5 U.S.C.SECTION 7118(A)(7) AND SECTION 2423.26 OF THE
FINAL RULES AND REGULATIONS, 45 FED.REG. 3482, 3510 (1980), IT IS HEREBY
ORDERED THAT THE FEDERAL AVIATION ADMINISTRATION, FARMINGTON, MINNESOTA,
SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING ESTABLISHED PERSONNEL PRACTICES AND POLICIES AFFECTING
WORKING CONDITIONS
WITHOUT FIRST NOTIFYING LOCAL 305, PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, MEBA,
AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND
AFFORDING IT THE
OPPORTUNITY TO MEET AND CONSULT WITH RESPECT TO THE CONTEMPLATED
CHANGE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED UNDER THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES
OF THE STATUTE:
(A) RESCIND ITS ORDER OF MARCH 21, 1980 DIRECTING DISCONTINUANCE OF
THE PRACTICE OF
GRANTING HOLDOVER OVERTIME IN TWO HOURS INCREMENTS UNTIL SUCH TIME AS
THE OBLIGATION TO
CONSULT WITH LOCAL 305, PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO,
ABOUT SUCH CHANGE HAS BEEN MET.
(B) MAKE WHOLE ANY AND ALL EMPLOYEES WHO WERE REFUSED HOLDOVER
OVERTIME IN TOW HOUR
INCREMENTS AS A CONSEQUENCE OF THE MARCH 21, 1980 DIRECTIVE BY
COMPENSATING THEM AT
APPROPRIATE OVERTIME RATES FOR SUCH DEPRIVATION.
(C) POST AT ITS FACILITY, 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 FACILITY
CHIEF AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER IN A
CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE FACILITY CHIEF IS
TO TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED OR COVERED BY
OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
45 FED.REG.AT 3511,
NOTIFY THE REGIONAL DIRECTOR, CHICAGO REGION, 175 W. JACKSON
BOULEVARD, SUITE A-1359, CHICAGO,
ILLINOIS, 60604, IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE
BEEN TAKEN TO COMPLY HEREWITH. /5/
/1/ FAA CONTENDS THAT CONTROLLERS REQUIRED TO WORK BEYOND THEIR
SHIFTS, BECAUSE OF LATE ARRIVING RELIEF, ARE ENTITLED TO OVERTIME IN
SIX-MINUTE INCREMENTS, AND THAT ENTITLEMENT TO TWO HOURS OVERTIME IS
TRIGGERED ONLY BY A MANAGEMENT DECISION TO HOLD A CONTROLLER OVER
BECAUSE OF WEATHER OR TRAFFIC CONDITION.
/2/ SECTION 7116(D) OF THE STATUTE PROVIDES IN PERTINENT PART:
ISSUES WHICH CAN BE PROPERLY RAISED UNDER AN APPEALS PROCEDURE MAY
NOT BE RAISED AS UNFAIR
LABOR PRACTICES PROHIBITED UNDER THIS SECTION . . . ISSUES WHICH CAN
BE RAISED UNDER A
GRIEVANCE PROCEDURE MAY, IN THE DISCRETION OF THE AGGRIEVED PARTY, BE
RAISED UNDER THE
GRIEVANCE PROCEDURE OR AS AN UNFAIR LABOR PRACTICE UNDER THIS
SECTION, BUT NOT UNDER BOTH
PROCEDURES.
/3/ SEE, FOR EXAMPLE, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, FRESNO SERVICE CENTER, 8 A/SLMR NO. 893 (1978).
/4/ I FIND THAT, UNDER THE CONTRACT, A DUTY TO CONSULT RATHER THAN TO
NEGOTIATE EXISTED. FEDERAL AVIATION ADMINISTRATION, 8 A/SLMR NO. 992
(1978).
/5/ IN THE EVENT THE FEDERAL LABOR RELATIONS AUTHORITY FINDS PATCO
VIOLATED SECTION 7116(B)(7)(A) AND (B) IN CASE NO. 3-CO-105, THIS REMEDY
WOULD REQUIRE MODIFICATION SO AS TO DELETE ANY REFERENCE TO THAT
ORGANIZATION AND TO DELETE IN ITS ENTIRETY PARAGRAPH 2(A) OF THE ORDER
AND ANY CORRESPONDING NOTICE AS PROVIDED FOR IN THE APPENDIX. THE DUTY
TO CONSULT WOULD BE EXTINGUISHED BY SUCH AN ORDER, AND WITH IT ANY
POSSIBLE BACKPAY CLAIMS ARISING THEREAFTER.
JEFFREY A. JAMESON, ESQUIRE
FOR THE RESPONDENT
JUDITH A. RAMEY, ESQUIRE
FOR THE GENERAL COUNSEL
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CHANGE ESTABLISHED PERSONNEL PRACTICES AND POLICIES
AFFECTING WORKING CONDITIONS WITHOUT FIRST NOTIFYING LOCAL 305,
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, MEBA, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING IT THE
OPPORTUNITY TO MEET AND CONSULT WITH RESPECT TO THE CONTEMPLATED CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST OF LOCAL 305, PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, MEBA, AFL-CIO, CONSULT TO THE EXTENT CONSONANT
WITH LAW AND REGULATION REGARDING THE PRACTICE OF GRANTING HOLDOVER
OVERTIME IN TOW HOUR INCREMENTS AND RESCIND THE ORDER OF MARCH 21, 1980
DIRECTING DISCONTINUANCE OF THE PRACTICE OF GRANTING HOLDOVER OVERTIME
IN TWO HOUR INCREMENTS UNTIL SUCH TIME AS OUR OBLIGATION TO CONSULT HAS
BEEN MET.
WE WILL TAKE ALL STEPS NECESSARY TO COMPENSATE AT APPROPRIATE
OVERTIME RATES ANY AND ALL EMPLOYEES WHO WERE DEPRIVED OF HOLDOVER
OVERTIME IN TWO HOUR INCREMENTS AS A CONSEQUENCE OF THE MARCH 21, 1980
DIRECTIVE.
. . . (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 ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: 175 W. JACKSON BOULEVARD, SUITE A-1359, CHICAGO,
ILLINOIS 60604, AND WHOSE TELEPHONE NUMBER IS: (312) 886-3468. 770801
0000490
1981
VETERANS ADMINISTRATION MEDICAL CENTER, CANANDAIGUA, NEW YORK,
RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306,
AFL-CIO, CHARGING PARTY
BEFORE: WILLIAM NAIMARK, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO AN ORDER CONSOLIDATING CASES, A FIRST AMENDED COMPLAINT
AND NOTICE OF HEARING ISSUED ON APRIL 15, 1981 BY THE REGIONAL DIRECTOR
FOR THE FEDERAL LABOR RELATIONS AUTHORITY, BOSTON, MASSACHUSETTS REGION,
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JUNE 17, 1981 AT
CANANDAIGUA, NEW YORK.
THIS PROCEEDING ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED THE ACT). ON
OCTOBER 15, 1980 A CHARGE WAS FILED IN CASE NO. 1-CA-512 FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO (HEREIN
CALLED THE UNION) AGAINST THE VETERANS ADMINISTRATION MEDICAL CENTER,
CANANDAIGUA, NEW YORK (HEREIN CALLED RESPONDENT OR THE EMPLOYER).
THEREAFTER BETWEEN DECEMBER 24, 1980 AND FEBRUARY 24, 1981 SUCCESSIVE
CHARGES HEREIN WERE FILED BY THE UNION AGAINST RESPONDENT IN CASE NOS.
1-CA-604, 1-CA-610, 1-CA-621, 1-CA-622, 1-CA-643 AND 1-CA-675.
THE FIRST AMENDED COMPLAINT, WITH RESPECT TO THE AFORESAID CASES,
ALLEGED IN SUBSTANCE AS FOLLOWS:
A) ON OR ABOUT AUGUST 13, AUGUST 27, AND SEPTEMBER 11, 1980,
RESPONDENT THREATENED AN EMPLOYEE WITH DISCIPLINARY ACTION BECAUSE OF
HIS UNION ACTIVITY IN VIOLATION OF SECTION 7116(A)(1) OF THE ACT.
B) ON OR ABOUT SEPTEMBER 20, 1980 RESPONDENT UNILATERALLY CHANGED
CONDITIONS OF EMPLOYMENT BY ISSUING STATION MEMORANDUM NO. 80-48 WITHOUT
NOTIFYING THE UNION AND AFFORDING IT THE OPPORTUNITY TO REQUEST
BARGAINING OVER THE CHANGE AND/OR ITS IMPACT AND IMPLEMENTATION-- ALL IN
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE ACT.
C) IN OR ABOUT OCTOBER, 1980, RESPONDENT UNILATERALLY CHANGED
CONDITIONS OF EMPLOYMENT BY ASSIGNING SOCIAL WORKERS THE DUTIES OF
WRITING DISCHARGE SUMMARIES WITHOUT FURNISHING THE UNION NOTICE AND AN
OPPORTUNITY TO BARGAIN SUCH CHANGE AND/OR ITS IMPACT AND
IMPLEMENTATION-- ALL IN VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE
ACT.
D) IN OR ABOUT NOVEMBER, 1980 RESPONDENT UNILATERALLY ESTABLISHED
DIFFERENT WORKING CONDITIONS FOR A REGISTERED NURSE TO FUNCTION AS A
CLINICAL NURSE SPECIALIST WITHOUT NOTIFYING THE UNION AND/OR AFFORDING
IT AN OPPORTUNITY TO BARGAIN AS THE CHANGE AND/OR ITS IMPACT AND
IMPLEMENTATION-- ALL IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
ACT.
E) ON OR ABOUT NOVEMBER 13, 1980 AND DECEMBER 8, 1980 RESPONDENT
FAILED AND REFUSED TO NEGOTIATE THE IMPACT AND IMPLEMENTATION OF ITS
DECISION TO RENOVATE CERTAIN BUILDINGS AT ITS CANANDAIGUA LOCATIONS--
ALL IN VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE ACT.
F) ON OR ABOUT NOVEMBER 13, 1980 RESPONDENT BYPASSED THE UNION AND
DEALT DIRECTLY WITH UNIT EMPLOYEES BY SOLICITING VOLUNTEERS FOR
REASSIGNMENT.
G) ON OR ABOUT DECEMBER 14, 1980 RESPONDENT UNILATERALLY CHANGED
CONDITIONS OF EMPLOYMENT BY RENOVATING CERTAIN BUILDINGS AT ITS
CANANDAIGUA, NEW YORK LOCATION WITHOUT AFFORDING THE UNION AN
OPPORTUNITY TO BARGAIN REGARDING THE IMPACT AND IMPLEMENTATION OF ITS
DECISION.
H) ON OR ABOUT DECEMBER 19, 1980 RESPONDENT HELD A FORMAL DISCUSSION
WITH UNIT EMPLOYEES WITHOUT GIVING THE UNION AN OPPORTUNITY TO BE
REPRESENTED AT SUCH DISCUSSION-- ALL IN VIOLATION OF SECTIONS
7116(A)(1), (5) AND (8) OF THE ACT.
I) ON OR ABOUT DECEMBER 19, 1980 RESPONDENT UNILATERALLY CHANGED
CONDITIONS OF EMPLOYMENT BY RECALLING A "BEEPER" OR "PAGER" ASSIGNED TO
A UNION OFFICIAL WITHOUT NOTIFYING THE UNION AND AFFORDING IT AN
OPPORTUNITY TO BARGAIN REGARDING SUCH CHANGE AND/OR ITS IMPACT AND
IMPLEMENTATION-- ALL IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
ACT.
J) ON OR ABOUT JANUARY 7, 1981 RESPONDENT REFUSED TO PROVIDE THE
UNION, AS REQUESTED ON DECEMBER 30, 1980, A COPY OF A "PRIORITIZATION OF
TRAINING" MEMORANDUM WHICH WAS NECESSARY AND RELEVANT FOR THE UNION TO
FULFILL ITS REPRESENTATIONAL DUTIES FOR EMPLOYEES-- ALL IN VIOLATION OF
SECTIONS 7116(A)(1), (5) AND (8) OF THE ACT.
RESPONDENT'S ANSWER HEREIN DENIED THE AFORESAID ALLEGATIONS AND THE
COMMISSION OF ANY UNFAIR LABOR PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING. /1/ EACH WAS AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL
AS CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION OR THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO HAS BEEN AND STILL IS THE EXCLUSIVE
REPRESENTATIVE OF RESPONDENT'S PROFESSIONAL EMPLOYEES, AS WELL AS ITS
REGISTERED NURSES ASSIGNED AS STAFF NURSES AND INSTRUCTORS IN NURSING
SERVICE, AND NURSE PRACTITIONERS AND CLINICAL NURSE SPECIALISTS.
2. (A) ON AUGUST 13, 1980 /2/ GARY YAX, AN OCCUPATIONAL THERAPIST
(OT) AND STEWARD OF THE UNION, MET WITH DR. SALAZAR, CHIEF OF
REHABILITATION MEDICAL SERVICES, AND KEN NORTH, ACTING CHIEF OF
OCCUPATIONAL THERAPY. AFTER BEING INFORMED BY SALAZAR THAT OT PEOPLE
WOULD BE ROTATED IN THEIR JOBS, YAX STATED HE THOUGHT THE MATTER SHOULD
BE NEGOTIATED. ALTHOUGH SALAZAR SAID IT IS NOT NEGOTIABLE, THE UNION
STEWARD REPLIED THAT MANAGEMENT SHOULD GET TOGETHER WITH THE UNION.
WHEREUPON THE DOCTOR RETORTED THAT YAX WAS BLOCKING HIS ROTATION PLAN;
THAT THE EMPLOYEE WAS THE MAIN OBSTACLE.
(B) TWO WEEKS LATER THE SAME PARTIES MET AGAIN AND DISCUSSED THE SAME
SUBJECT. SALAZAR REMARKED THAT THE ROTATION WOULD TAKE PLACE AMONG THE
OT'S; THAT THE EMPLOYEES SHOULD GET TOGETHER WITH NORTH AND COME UP
WITH A ROTATION SCHEDULE; THAT IF THEY DIDN'T DO SO, THE RMS OFFICE
WOULD, AND "IT WOULD NOT BE PLEASANT". IT WAS FURTHER STATED BY SALAZAR
THAT YAX AND TWO OT'S WERE DEFICIENT IN THEIR JOB DESCRIPTION, AND THAT
OT GALLAGHER WOULD BE AUDITED IN HER JOB DESCRIPTION.
(C) A THIRD MEETING AMONG THE SAME INDIVIDUALS OCCURRED A FEW WEEKS
ALTER. YAX INFORMED MANAGEMENT THAT HE TOLD THE UNIT MEMBERS OF THE PLAN
TO IMPLEMENT THE ROTATION. SALAZAR REPLIED THAT YAX WAS A PRIMA DONNA;
THAT IT DID NOT CONCERN THE BARGAINING UNIT; THAT HE WANTED YAX TO DO
THE ROTATION SCHEDULING. WHEN YAX COMMENTED HE COULDN'T ESTIMATE HOW
LONG IT WOULD TAKE TO DO IT, SALAZAR SAID THE EMPLOYEE WAS RESISTFUL AND
RESENTFUL TOWARD HIM. THE DOCTOR FURTHER STATED THE DAY OF RECKONING
WOULD COME FOR THE OT'S. FINALLY, SALAZAR REMARKED TO NORTH THAT YAX WAS
A TOUGH NUT TO CRACK AND NORTH SHOULD EXPLAIN THINGS TO THE EMPLOYEE.
3. (A) IN LATE SEPTEMBER OR EARLY OCTOBER BROOKE BREWER, SOCIAL
WORKER AND UNION REPRESENTATIVE OF PROFESSIONALS, WAS INFORMED BY
SEVERAL SOCIAL WORKERS THAT THEY UNDERSTOOD THE SOCIAL WORKERS WOULD BE
DOING THE DISCHARGE SUMMARIES. /3/ ON SEVERAL OCCASIONS, BETWEEN LATE
SEPTEMBER AND FEBRUARY, 1981, BREWER SPOKE TO ANNA PORTKA, CHIEF OF
SOCIAL WORK SERVICE, REGARDING THIS SUBJECT MATTER. PORTKA VOICED
OBJECTION TO HAVING THE SOCIAL WORKERS DOING THE SUMMARIES, AND STATED
SHE WOULD NOT HAVE HER STAFF DO THIS TASK.
(B) PRIOR TO LATE OCTOBER ONLY ONE OF THE 15-20 SOCIAL WORKERS HAD
BEEN ASSIGNED TO DRAFT DISCHARGE SUMMARIES. WHEN SEVERAL WORKERS REFUSED
TO, OR WERE NOT WRITING THE SUMMARIES, MANAGEMENT HELD A MEETING ON
DECEMBER 19 TO ASCERTAIN THE REASONS THEREFORE. IN ATTENDANCE THEREAT
WERE DEWAYNE ROBERTSON, DIRECTOR OF THE MEDICAL CENTER, REXFORD
SALISBURY, ASSISTANT DIRECTOR OF THE MEDICAL CENTER, RICHARD LANG,
ASSISTANT CHIEF OF SOCIAL WORK SERVICE, AND SOCIAL WORKERS JUDY MELINO
AND JERRY BUZAN. NO NOTIFICATION WAS GIVEN TO THE UNION HEREIN OF THE
MEETING. LANG TESTIFIED THAT AT THE DATE OF THE MEETING TWO SOCIAL
WORKERS WERE PREPARING THE SUMMARIES. SALISBURY ASKED THE SOCIAL SERVICE
WORKERS WHY THEY REFUSED TO WRITE THE SUMMARIES. MELINO REPLIED THAT
THEIR SUPERVISOR, PORTKA, ORDERED THEM NOT TO DO SO. WHEREUPON SALISBURY
STATED HE WAS PORTKA'S BOSS AND WAS ORDERING THESE EMPLOYEES, AS WELL AS
ALL SOCIAL WORKERS, TO WRITE THEM. MELINO ASKED THAT THE ORDER BE IN
WRITING, BUT THE ASSISTANT DIRECTOR REFUSED. AFTER THIS INDIVIDUAL
AGREED TO DRAFT THE SUMMARIES, BUZAN REMARKED HE HAD NO EXPERIENCE DOING
THIS TASK. THE MANAGEMENT OFFICIAL STATED THAT RESPONDENT WOULD SET UP A
TRAINING PROGRAM FOR HIM BEFOREHAND.
(C) SINCE THE AFOREMENTIONED MEETING BOTH MELINO AND BUZAN, IN
ADDITION TO FOUR OTHER SOCIAL WORKERS, HAVE BEEN WRITING DISCHARGE
SUMMARIES AS PART OF THEIR REGULAR DUTIES. TIME CONSUMED IN SO DOING HAS
BEEN BETWEEN 20-90 MINUTES FOR EACH SUMMARY. /4/
4. (A) IN THE SUMMER OF 1980 DOUGLAS NATHER, PRESIDENT OF THE UNION
AND AN EMPLOYEE AT THE MEDICAL CENTER, SPOKE TO DIRECTOR ROBERTSON
REGARDING THE FACT THAT HE WAS UNABLE TO RECEIVE MESSAGES. NATHER
EXPLAINED THAT HE WORKED IN A PATIENT CARE AREA WHERE NO PHONE WAS
LOCATED; THAT PEOPLE WERE UNABLE TO REACH HIM, AND THAT HE RECEIVED
NUMEROUS TELEPHONE CALLS EACH DAY IN REGARD TO UNION BUSINESS. THE
EMPLOYEE REQUESTED A TELEPAGER TO THUS EASE THE WORKLOAD OF THE
SECRETARIES. AT THE SUGGESTION OF ROBERTSON, THE UNION OFFICIAL WROTE A
MEMO, DATED AUGUST 21, TO H. TREMBLAY, CHIEF OF MEDICAL ADMINISTRATION
SERVICES, REGARDING HIS REQUEST. NATHER STATED HE FOUND IT DIFFICULT TO
BE RESPONSIVE TO COMMUNICATIONS FROM THE HOSPITAL, AS WELL AS HIS UNION
CONSTITUENCY, DUE TO HIS AMBULATORY ACTIVITIES. HE THUS ASKED FOR A
TELEPAGER WHICH WAS ISSUED TO HIM IN OCTOBER.
(B) BETWEEN THE DATE OF ISSUANCE AND DECEMBER RATHER USED THE
TELEPAGER OR "BEEPER" FOR COMMUNICATING WITH HOSPITAL OFFICIALS OR
AIDES, AS WELL AS DISCUSSING LABOR-MANAGEMENT PROBLEMS INVOLVING OTHER
EMPLOYEES. IN DECEMBER TREMBLAY MET WITH NATHER AND ASKED HIM TO TURN IN
THE PAGER. RESPONDENT'S OFFICIAL STATED THE ITEM WAS NO LONGER A
PRIORITY; THAT THE HOSPITAL NEEDED A RESERVE "BEEPER" FOR EMERGENCY
COMMUNICATIONS. HE ALSO REMARKED THAT ITS ISSUANCE WAS AN ADMINISTRATIVE
MISTAKE. WHEN NATHER OBJECTED AND POINTED OUT THAT A REPRESENTATIVE OF
THE SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 200 (SEIU) HAD THE USE
OF THE PAGER, TREMBLAY SAID IT WAS AN ADMINISTRATIVE MISTAKE AND THE
SEIU REPRESENTATIVE WOULD NOT BE KEEPING THE PAGER. /5/ THEREAFTER
ROBERTSON PHONED NATHER AND ASKED HIM TO TURN IT IN, MENTIONING THAT THE
PAGER WAS NO LONGER A PRIORITY. NATHER COMPLIED WITH THE DIRECTOR'S
REQUEST AND RELINQUISHED THE ITEM.
5. (A) IN NOVEMBER THERE WERE 17 NURSES ASSIGNED TO BUILDING 37 AT
THE MEDICAL CENTER. EXCEPT FOR HEAD NURSE CONSTANTINE AND UNION
PRESIDENT DOUGLAS NATHER, ALL THE NURSES THEREAT WORKED A ROTATING
SCHEDULE ON THREE SHIFTS. APPROXIMATELY NINE NURSES ROTATED WEEKENDS AND
DAYS OFF. SINCE FOUR NURSES WERE ON DUTY ON A GIVEN WEEKEND OR HOLIDAY,
THE NURSES WERE OFF FROM DUTY EVERY OTHER WEEKEND.
DURING NOVEMBER RESPONDENT ASSIGNED STAFF NURSE SUZANNE LEICHT, WHO
WAS ONE OF THE NURSES IN BUILDING 37 ON A ROTATIONAL SCHEDULE, TO THE
DAY SHIFT (MONDAY-- FRIDAY, 7:30 A.M. TO 4:00 P.M.). ALTHOUGH SHE
RETAINED HER TITLE OF STAFF NURSE, LEICHT WAS TRANSFERRED IN ORDER TO
TRAIN HER AS A CLINICAL SPECIALIST AND FILL A VACANCY IN THAT POSITION.
AFTER THE SHIFT TRANSFER LEICHT DID NOT WORK HOLIDAYS OR WEEKENDS, AND
SHE DID NOT ROTATE HER SCHEDULED HOURS. SHE DID NOT RECEIVE PAY
DIFFERENTIAL WHICH WAS PAID HER PREVIOUSLY IF SHE ROTATED TO AN EVENING
SHIFT OR WORKED WEEKENDS.
(B) SINCE NO NOTIFICATION WAS GIVEN BY THE EMPLOYER TO THE UNION,
NATHER SPOKE TO CONSTANTINE REGARDING THE ASSIGNMENT. HE INQUIRED WHY
LEICHT DID NOT WORK HOLIDAYS OR WEEKENDS AS THE REMAINING 14 NURSES.
CONSTANTINE REPLIED THAT RESPONDENT WANTED LEICHT ON ADMINISTRATIVE
WORK. NATHER OBJECTED TO THIS NURSE RECEIVING PREFERENTIAL TREATMENT,
AND HE ALSO STATED THE MATTER SHOULD HAVE BEEN DISCUSSED WITH THE
BARGAINING REPRESENTATIVE. THE UNION OFFICIAL ALSO PROTESTED THE
TRANSFER TO NURSE COORDINATOR SIMON. NATHER STATED THAT LEICHT SHOULD
HAVE THE TITLE OF CLINICAL SPECIALIST OR BE RETURNED TO HER ORIGINAL
SCHEDULE. THE SUPERVISOR REFUSED THIS DEMAND, COMMENTING THAT THE NURSE
WAS NOT DOING SPECIALIZED WORK.
(C) NATHER ALSO WROTE TO WILLIAM C. REITER, CHIEF OF NURSING SERVICE,
PROTESTING THE TRANSFER OF LEICHT AND HER PREFERRED SCHEDULE. THE UNION
OFFICIAL ALSO REFERRED TO THE FACT THAT RESPONDENT HAD NOT NEGOTIATED
THE IMPACT OF THE ASSIGNMENT ON OTHER NURSES. HE REQUESTED THAT LEICHT
BE RETURNED TO THE ROTATING SCHEDULE OR BE APPOINTED TO THE CLINICAL
SPECIALIST POSITION. /6/ ON DECEMBER 22 NATHER, REITER, AND SIMON MET TO
DISCUSS THE MATTER. REITER INSISTED THE SUBJECT WAS NOT NEGOTIABLE. HE
TOOK THE POSITION THAT LEICHT WAS NOT PERFORMING SPECIALIZED WORK AND
MANAGEMENT HAD THE RIGHT TO ASSIGN EMPLOYEES TO THE DAY SHIFT. IN
JANUARY, 1981 NATHER CONFERRED AGAIN WITH REITER REGARDING THE
ASSIGNMENT. ALTHOUGH THE UNION REPRESENTATIVE REPEATED HIS OBJECTIONS
THERETO, REITER CONTINUED TO INSIST THAT RESPONDENT RETAINED THE RIGHT
TO TAKE THAT ACTION. LEICHT LEFT HER EMPLOYMENT IN MARCH, 1981.
(D) IN RESPECT TO THE EFFECT OF THE TRANSFER UPON THE REMAINING
NURSES, /7/ RECORD FACTS SHOW THESE INDIVIDUALS ABSORBED THE WORK
PERFORMED BY LEICHT ON WEEKENDS, HOLIDAYS OR OFF-SHIFT WORK. SINCE THE
NURSES IN BUILDING 37 WORKED EVERY OTHER WEEKEND, AND LEICHT CONTINUED
ON THE DAY SHIFT FOR ABOUT FOUR MONTHS (TILL HER TERMINATION), THE
ABSORPTION PERIOD AMOUNTED TO TWO MONTHS. RECORD FACTS SHOW THAT, AS A
RESULT OF LEICHT'S ASSIGNMENT TO THE DAY SHIFT, SEVERAL PEOPLE HAD TO
WORK ABOUT FOUR WEEKENDS DURING SAID PERIOD TO ABSORB THE VACANCY LEFT
BY SAID ASSIGNMENT. PRIOR TO NOVEMBER, 1980 LEICHT RECEIVED A PAY
DIFFERENTIAL IF SHE ROTATED TO AN EVENING STAFF (6:00 P.M. TO 6:00 A.M.)
OR WORKED ON A SUNDAY; AFTER THIS DATE SHE RECEIVED NO PAY DIFFERENTIAL
UNLESS WORKING SAID HOURS. /8/
6. (A) A STATION MEMORANDUM, ISSUED BY RESPONDENT ON SEPTEMBER 30,
1979, SET UP A TRAINING AND EDUCATION PROGRAM FOR THE DEVELOPMENT OF
EMPLOYEES AND STUDENTS FROM AFFILIATED SCHOOLS. IT PROVIDED FOR A
HOSPITAL EDUCATION COMMITTEE AND A SUBCOMMITTEE FOR PROFESSIONAL
EDUCATION. UNDER DATE OF SEPTEMBER 30 RESPONDENT ISSUED STATION
MEMORANDUM NO. 80-48 WHICH ESTABLISHED A TRAVEL AND EDUCATION COMMITTEE
IN CONNECTION WITH A POST-GRADUATE AND IN-SERVICE TRAINING PROGRAM. THE
PURPOSE, AS STATED THEREIN, WAS TO MAINTAIN AND IMPROVE PATIENT CARE
THROUGH CONTINUING EDUCATION AND TRAINING. THE 1980 COMMITTEE REPLACED
BOTH OF THE FORMER COMMITTEES ESTABLISHED THE PREVIOUS YEAR. THE UNION
DID NOT RECEIVE FORMAL NOTIFICATION OF THE CHANGE, BUT A COPY WAS PUT IN
CHIEF STEWARD DENNIS ALDER'S MAIL BOX IN EARLY OCTOBER. UNDER THE NEW
PLAN IN STATION MEMORANDUM NO. 80-48 PRIORITIES WERE DECLARED IN RESPECT
TO RESPONDENT'S FUNDING OF EDUCATIONAL PROPOSALS REQUESTED BY EMPLOYEES.
THREE SUCH PRIORITIES FOR FUNDING WERE ESTABLISHED THEREUNDER.
(B) AT A LABOR-MANAGEMENT MEETING IN OCTOBER THE UNION APPRISED
RESPONDENT OF THE FACT THAT IT HAD NOT BEEN INFORMED OF THE CHANGE IN
COMMITTEES; THAT MANAGEMENT DID NOT MEET ITS OBLIGATION TO NEGOTIATE
THE CHANGES AND THEIR IMPACT UPON EMPLOYEES. ASSISTANT MEDICAL DIRECTOR
SALISBURY REPLIED THAT NO POLICY CHANGE WAS EFFECTED-- JUST A DIFFERENT
DESCRIPTION OF THE COMMITTEE. FURTHER, HE STATED THERE WAS NO OBLIGATION
TO BARGAIN OVER SAME.
(C) PRIOR TO THE 80-48 MEMORANDUM THERE WAS NO PRIORITY SYSTEM IN
RESPECT TO FUNDING ATTENDANCE BY EMPLOYEES AT CONFERENCES. REQUESTS FOR
ATTENDANCE THEREAT WERE HANDLED ON A FIRST-COME, FIRST-SERVE BASIS, AND
THE COMMITTEE MADE A RECOMMENDATION TO THE DIRECTOR REGARDING APPROVALS.
UNDER THE OLD POLICY THE SUBCOMMITTEE IN EDUCATION WOULD RECOMMEND
ONE-HALF THE PER DIEM FOR AN INDIVIDUAL GOING TO A CONFERENCE. FURTHER,
THE RESPONDENT WOULD PAY THE TRAVEL EXPENSES, WHILE THE INDIVIDUAL WOULD
STAND THE TUITION EXPENSE. UNDER THE NEW SYSTEM, DR. ROBERT E. BLAKE,
CHIEF OF PODIATRY, REQUESTED IN NOVEMBER THAT HE BE FUNDED TO ATTEND THE
NY STATE PODIATRY ASSOCIATION MEETING. HE REQUESTED $630 AS EXPENSES
THEREFOR. THE TRAINING AND EDUCATION COMMITTEE DECLARED HIS REQUEST WAS
A PRIORITY 3 AND GRANTED HIM $100. BLAKE DID NOT ATTEND THE CONFERENCE.
(D) A MEETING WAS HELD IN DECEMBER REGARDING THE NEW TRAINING PLAN.
IT WAS ATTENDED BY DR. ROBERT ATKINS, PSYCHIATRIST AND CHAIRMAN OF THE
COMMITTEE, PROGRAM ANALYST ROBERT BELLER, REITER, SALISBURY, AND ALDER
AS AN OBSERVER. BELLER MENTIONED THAT THEY WERE OPERATING UNDER THE
PRIORITY SYSTEM WHICH HAD BEEN IMPLEMENTED; THAT EACH DEPARTMENT HAD
BEEN VISITED AND ASKED TO LIST ITS NEEDS FOR THE COMING YEAR REGARDING
TRAINING-EDUCATION, AND EACH MEMBER OF THE COMMITTEE WOULD RECEIVE A
COPY THEREOF. ALTHOUGH BELLER AGREED TO FURNISH ALDER A COPY OF THE
TRAINING PRIORITIZATION, BELLER INFORMED THE STEWARD LATER THAT
MANAGEMENT WOULD NOT PERMIT HIM TO DO SO.
(E) BY LETTER DATED DECEMBER 30 ADDRESSED TO THE DIRECTOR, NATHER
REQUESTED RESPONDENT TO NEGOTIATE THE "SUBSTANCE, IMPACT AND
IMPLEMENTATION" OF STATION MEMORANDUM 80-48. IT WAS STATED THEREIN THAT
THE UNION CONSIDERED MANAGEMENT'S ACTION TO BE A CHANGE IN WORKING
CONDITIONS. FURTHER, IT WAS REQUESTED THAT THE DIRECTOR RESCIND THE MEMO
PENDING NEGOTIATION. IN A SEPARATE LETTER, DATED DECEMBER 30, NATHER
ALSO ASKED FOR A COPY OF THE PRIORITIZATION OF TRAINING PLANS PREPARED
BY BELLER. THE DIRECTOR REPLIED TO BOTH LETTERS IN SEPARATE MEMOS DATED
JANUARY 7, 1981. HE REJECTED THE REQUEST TO RESCIND MEMORANDUM NO.
80-48, STATING IT CONCERNED A SUBJECT ABOUT WHICH MANAGEMENT WAS NOT
OBLIGED TO BARGAIN. ROBERTSON ALSO STATED THAT THE MEMORANDUM INVOLVED
NO CHANGE IN WORKING CONDITIONS. HE REFUSED TO SEND THE UNION A COPY OF
THE PRIORITIZATION OF TRAINING PLANS ON THE GROUND THAT IT IS AN
INTERNAL MANAGEMENT PAPER AND THAT THE UNION'S ROLE IN THE COMMITTEE WAS
DEEMED TO BE AN OBSERVER.
(F) IN A MEMORANDUM DATED FEBRUARY 2, 1981 ADDRESSED TO MEMBERS OF
THE TRAVEL AND EDUCATION COMMITTEE, BELLER REQUESTED THAT ATTACHED
TRAINING NEEDS BE RANKED IN ORDER OF IMPORTANCE SO AS TO ESTABLISH
PRIORITIES THEREFORE. THEREAFTER A MEDICAL CENTER TRAINING PLAN, 1981
WAS PREPARED BY RESPONDENT WHICH RANKED THE TRAINING NEEDS IN REGARD TO
FUNDING, AND THE COMMITTEE WAS REQUIRED TO CONSIDER THE EXPRESSED
PRIORITIES.
7. (A) ON NOVEMBER 13 STAFF NURSE FAYE JENSEN, WHO WAS ACTING AS
EXECUTIVE VICE-PRESIDENT OF THE UNION FOR NURSING, APPEARED AT THE
OFFICE OF REITER PURSUANT TO HIS REQUEST. THE CHIEF OF NURSING SERVICE
ADVISED THE UNION REPRESENTATIVE THAT CHANGES WOULD OCCUR IN THE
PSYCHIATRIC NURSING SET-UP DUE TO BUILDING RENOVATIONS. THE PLAN, AS HE
EXPLAINED, CALLED FOR CLOSING BUILDING 6 AND MOVING PATIENTS AND PART OF
THE NURSING STAFF TO BUILDING 4B. ALSO, BUILDING 1C WOULD OPEN AND PART
OF THE STAFF (TEN NURSES) IN BUILDING 1B WOULD BE MOVED TO 1C. ALL OF
THE NURSING STAFF IN BUILDING 6, REITER INFORMED JENSEN, WOULD TRANSFER
TO BUILDING 4B EXCEPT FOR ONE REGISTERED NURSE - AND THOSE NURSES IN
BUILDING 4A WOULD REMAIN THERE SAVE FOR THREE SUCH INDIVIDUALS.
JENSEN INQUIRED WHICH NURSES WOULD BE INVOLVED IN THE MOVE, BUT
REITER REFUSED TO DISCLOSE THE NAMES UNTIL THE NURSES WERE NOTIFIED.
SHE ALSO ASKED HOW THE SELECTION WOULD BE MADE, AND REITER REPLIED THAT
THE HEAD NURSE AND THE NURSE SUPERVISOR WOULD MAKE THAT DECISION. THE
UNION OFFICIAL WAS FURTHER ADVISED THAT SENIORITY WOULD NOT GOVERN;
THAT MANAGEMENT WANTED BOTH EXPERIENCED AND NON-EXPERIENCED PEOPLE AT A
PARTICULAR LOCATION. REITER TOLD JENSEN THAT EMPLOYEES COULD SUBMIT
REQUESTS IN WRITING FOR REASSIGNMENT TO OTHER AREAS AND RESPONDENT WOULD
TRY TO MEET THEM. IF UNABLE TO DO SO, MANAGEMENT WOULD ACCORD THEM
PRIORITY FOR REASSIGNMENT WHEN VACANCIES OCCUR AT A LATER DATE. SOME
NURSES, REITER EXPLAINED, HAD TO BE ASSIGNED TO A MEDICAL UNIT, AND THEY
WOULD HAVE THE OPPORTUNITY TO BE REASSIGNED TO A PSYCHIATRIC UNIT.
THE UNION OFFICIAL THEN EXPRESSED THE FOLLOWING ADDITIONAL CONCERNS
REGARDING THE MOVE: (1) SINCE THE SCHEDULE IN BUILDING 1B WAS DIFFERENT
FROM 1C, THE DAYS OFF WOULD BE DIFFERENT, AND THE NURSES MIGHT NOT GET
THE SAME HOLIDAYS AS REQUESTED; (2) A PROBLEM MIGHT ARISE AS TO UNIFORM
ALLOWANCES. THUS, NURSES IN THE PSYCHIATRIC WARD COULD RECEIVE AN
ALLOWANCE AND WEAR UNIFORM-- OR SIGN A WAIVER OF THE ALLOWANCE AND WEAR
STREET CLOTHES. BUT IN THE MEDICAL AREA A UNIFORM WAS REQUIRED, AND IF A
WAIVER WERE SIGNED, THERE WOULD NOT BE AN ALLOWANCE FOR THE UNIFORM FOR
A YEAR-- THE WAITING PERIOD AFTER SIGNING SUCH WAIVER.
(B) UNDER DATE OF NOVEMBER 20 CHIEF STEWARD ALDER ADDRESSED TWO
SEPARATE MEMOS TO THE CHIEF OF PERSONNEL. IN ONE INSTANCE HE REQUESTED,
ON BEHALF OF THE UNION, THAT RESPONDENT NEGOTIATE THE SUBSTANCE, IMPACT
AND IMPLEMENTATION OF THE "PROPOSED REASSIGNMENT OF NURSING SERVICE
EMPLOYEES DUE TO RENOVATION PROJECT." IN THE OTHER MEMO ALDER REQUESTED
THE NEGOTIATION OF "REASSIGNMENT AND STAFFING CHANGES DUE TO THE OPENING
OF AN ADDITIONAL NURSING UNIT (1C)." BY LETTER DATED NOVEMBER 21 JENSEN
NOTIFIED REITER THAT THE UNION REQUESTED A COPY OF THE MERGER PLAN
INVOLVING THE DIFFERENT BUILDINGS; THAT THE UNION DESIRED TO BE ADVISED
OF THE PLANNED IMPLEMENTATION AND BE FURNISHED AN IMPACT STATEMENT.
THESE DOCUMENTS WERE NOT FURNISHED. ON NOVEMBER 28 RESPONDENT PUBLISHED
A LIST OF NURSES AND ASSISTANT NURSES TO BE REASSIGNED, AND NOTED
THEREIN THE BUILDING ASSIGNMENTS.
(C) ON DECEMBER 5 A MEETING TOOK PLACE BETWEEN MANAGEMENT AND THE
UNION REGARDING THE IMPENDING MOVE AND REASSIGNMENTS. IN ATTENDANCE WERE
NATHER, JENSEN AND ALDER ON BEHALF OF THE CHARGING PARTY-- REITER AND
WILLIAM WILSON, CHIEF OF PERSONNEL, REPRESENTING RESPONDENT. REFERENCE
WAS MADE BY THE UNION REPRESENTATIVES TO THE SAME CONCERNS EXPRESSED BY
JENSEN A MONTH EARLIER. IN RESPECT TO THE METHOD OF SELECTING PERSONNEL
FOR REASSIGNMENT, THE UNION OFFICIALS SUGGESTED IT BE DONE ON A
VOLUNTARY BASIS; THEN, IF THERE WERE NO VOLUNTEERS, SENIORITY SHOULD BE
THE CRITERION USED IN THE SELECTION. AS TO HOLIDAYS, THE UNION
REPRESENTATIVE REQUESTED THAT THE SAME SCHEDULE CONTINUE SO THAT NURSES
WOULD RECEIVE THE HOLIDAYS AS EXPECTED. IT WAS FURTHER PROPOSED BY THE
UNION THAT THOSE NURSES ASSIGNED TO A UNIFORM TYPE BUILDING RECEIVE AN
ALLOWANCE THEREFOR, /9/ AND IF THEY RETURNED TO A NON-UNIFORM BUILDING
THE NON-UNIFORM STATUS BE APPLICABLE IMMEDIATELY AND NOT A YEAR LATER.
FINALLY, IT WAS SUGGESTED BY THE UNION THAT PSYCHIATRIC NURSES BE GIVEN
PREFERENCE TO RETURN, IF A VACANCY OCCURRED, TO THEIR UNIT AFTER BEING
DISPLACED. ON THE PART OF MANAGEMENT, REITER TOLD THE UNION OFFICIALS
THAT THE MATTER WAS NOT NEGOTIABLE; THAT IT WAS UNFORTUNATE THE
REASSIGNMENT CAUSED INCONVENIENCES BUT MANAGEMENT HAD THE RIGHT TO
REASSIGN INDIVIDUALS WHERE NEEDED.
(D) BY LETTER DATED DECEMBER 8 WILSON WROTE NATHER IN REGARD TO THE
REQUESTS BY THE UNION TO NEGOTIATE THE IMPACT AND IMPLEMENTATION OF THE
REASSIGNMENT AND STAFFING CHANGES DUE TO THE RENOVATION PROJECT. WILSON
REITERATED MANAGEMENT'S RIGHT TO ASSIGN WORK TO EMPLOYEES AND DETERMINE
THE NUMBERS REGARDING POSITIONS ASSIGNED, AS WELL AS THE METHODS AND
MEANS OF PERFORMING WORK. HE INDICATED THE BASIS USED FOR SELECTING
INDIVIDUALS FOR REASSIGNMENT, AND STATED THAT MANAGEMENT DID NOT
CONSIDER ANY ADVERSE IMPACT WOULD RESULT TO UNIT MEMBERS. REQUESTED
LEAVE WOULD, HE REMARKED, REMAIN UNCHANGED INSOFAR AS POSSIBLE;
REASSIGNMENT WAS NOT PERMANENT AND NURSES COULD REQUEST REASSIGNMENT TO
ANOTHER UNIT. WILSON CONCLUDED BY COMMENTING THAT IF THE UNION
DETERMINES THAT ADVERSE EFFECTS RESULT FROM THE MOVE, WHICH WERE NOT
CONSIDERED AT THE NOVEMBER 13 MEETING, MANAGEMENT SHOULD BE ADVISED IN
WRITING SO THEY COULD BE DISCUSSED BETWEEN THE PARTIES.
(E) REITER WROTE JENSEN ON DECEMBER 8 REGARDING THE CONSOLIDATION OF
BUILDINGS 4 AND 6, STATING THAT NO WRITTEN PLAN WAS DEVELOPED AS TO IT.
FURTHER, HE STATED THAT "ANY SEEMING IMPACT ON PROFESSIONAL NURSES MUST
BE AN EMPLOYEE DETERMINATION, /10/ THUS I CANNOT SUPPLY YOU WITH AN
IMPACT STATEMENT." REITER ALSO REMARKED THAT JENSEN, AT THE NOVEMBER 13
MEETING, APPEARED TO AGREE AS TO THE CRITERIA FOR SELECTING NURSES TO BE
REASSIGNED. IN A REPLY MEMO DATED DECEMBER 10 JENSEN DISABUSED REITER OF
THE NOTION THAT SHE AGREED TO THE CRITERIA, AND SHE ADVISED HIM THAT NO
AGREEMENTS WERE MADE AT SAID MEETING SINCE IT WAS MERELY AN
INFORMATIONAL SESSION.
8. COMMENCING ON DECEMBER 14 THE NURSES WERE REASSIGNED IN ACCORDANCE
WITH THE CONSOLIDATION PLAN. EMPLOYEES WERE NOTIFIED IN ADVANCE ALTHOUGH
NO NOTIFICATION WAS GIVEN TO THE UNION. ONE FULL-TIME AND TWO PART-TIME
NURSES IN BUILDING 4 IF MOVED TO 1B-- FROM PSYCHIATRIC TO MEDICAL AREAS;
A NURSE IN BUILDING 6 (PSYCHIATRIC) MOVED TO 1B. NONE HAS RETURNED. BY
REASON OF THE REASSIGNMENT STAFF NURSES RELOCATED TO BUILDING 1C HAVE
BEEN ON A REGULAR ROTATION SCHEDULE. IN BUILDING 1B ROTATIONS /11/
OCCURRED INFREQUENTLY PRIOR TO DECEMBER 14. JENSEN ALSO TESTIFIED THAT
SINCE THERE WERE FEWER NURSES IN BUILDING 1C THAN 1B, SHE TESTIFIED THAT
SINCE THERE WERE FEWER NURSES IN BUILDING 1C THAN 1B, SHE WAS NOT
ACCORDED A HOLIDAY ON NEW YEARS AS PLANNED.
CONCLUSIONS
I. ALLEGED THREATS BY RESPONDENT TO EMPLOYEE BASED ON UNION ACTIVITY
IT IS CONTENDED BY THE GENERAL COUNSEL THAT SUPERVISOR SALAZAR,
DURING HIS CONVERSATIONS WITH UNION STEWARD YAX, MADE VARIOUS STATEMENTS
WHICH WERE INHERENTLY COERCIVE. AS SUCH, IT IS ARGUED THAT THESE REMARKS
FALL WITHIN THE PARAMETER OF THE ALLEGATION IN THE COMPLAINT THAT THE
EMPLOYEE WAS THREATENED WITH DISCIPLINE BY REASON OF HIS UNIONISM.
I DO NOT AGREE WITH THIS CONTENTION. WHILE THE COMMENTS BY SALAZAR
EVINCED FRUSTRATION BY THE LATTER IN DEALING WITH YAX, I CANNOT CONCLUDE
THAT THE SUPERVISOR THREATENED THE EMPLOYEE WITH DISCIPLINE AS A RESULT
OF HIS UNION ACTIVITIES. THE THRUST OF SALAZAR'S DISCUSSION WITH THE
EMPLOYEE CENTERED ON HIS DESIRE TO HAVE THE OCCUPATIONAL THERAPIST
(OT'S) DEVISE A ROTATIONAL SCHEDULE. YAX COUNTERED BY SUGGESTING THAT
THE MATTER SHOULD BE RESOLVED WITH THE UNION. THIS SUGGESTION WAS NOT
EMBRACED BY SALAZAR WHO STATED THAT THE MATTER WAS NON-NEGOTIABLE AND
THAT THE EMPLOYEE WAS BLOCKING THE ROTATION PLAN. WHILE THE DOCTOR ALSO
SAID THE 'DAY OF RECKONING' WOULD COME FOR THE OT'S, I DO NOT CONCLUDE
THAT SUCH A REMARK WAS REFERABLE TO THE UNION ACTIVITY OF THIS OR ANY
OTHER EMPLOYEE. THIS STATEMENT, ALBEIT NOT EXPLICIT IN ITS REFERENCE,
EXHIBITED SALAZAR'S IMPATIENCE AND FRUSTRATION IN REGARD TO IMPLEMENTING
THE ROTATION SCHEDULE. WITHOUT MORE, HOWEVER, I AM UNABLE TO DRAW AN
INFERENCE THEREFROM THAT YAX WAS THUS THREATENED BECAUSE OF HIS
ACTIVITIES ON BEHALF OF THE UNION HEREIN.
CASES CITED BY THE GENERAL COUNSEL IN SUPPORT OF ITS POSITION IN THIS
REGARD ARE INAPPOSITE. IN DEPARTMENT OF THE AIR FORCE, 35TH COMBAT
SUPPORT GROUP (TAC), GEORGIA AIR FORCE BASE, CALIFORNIA, 4 FLRA NO. 5,
THE EMPLOYER REFUSED TO PROCESS AN EMPLOYEE' GRIEVANCE FILED UNDER A
NEGOTIATED GRIEVANCE PROCEDURE. A REPRESENTATIVE OF MANAGEMENT ALSO TOLD
THE EMPLOYEE HE HAD NO RIGHTS UNDER SAID PROCEDURE. THESE REMARKS WERE
HELD TO HAVE VIOLATED SECTION 7116(A)(1) OF THE ACT SINCE THEY
DISCOURAGED OR INTERFERED WITH THE RIGHT OF THE INDIVIDUAL TO FILE A
GRIEVANCE. THIS CITED CASE INVOLVED NO THREAT OR COERCIVE UTTERANCE, AND
IN NO WAY IMPOSED POSSIBLE DISCIPLINARY ACTION AS RETALIATION FOR
UNIONISM. /12/ THE COERCIVE REMARK PRESENT IN NAVY RESALE SYSTEM, ET
AL., 5 FLRA NO. 42 IS DISTINGUISHABLE FROM THE STATEMENT MADE TO YAX
HEREIN. IN THE NAVY RESALE CASE AN IMPLIED THREAT OF REPRISAL WAS FOUND
TO EXIST WHEN THE SUPERVISOR STATED TO THE EMPLOYEE THAT THINGS WOULD GO
MUCH BETTER IF THE LATTER CAME TO HIM RATHER THAN THE UNION PRESIDENT.
SUCH A COMMENT WAS DEEMED AN ATTEMPT TO RESTRAIN THE INDIVIDUAL'S
SEEKING ASSISTANCE FROM THE BARGAINING REPRESENTATIVE-- AND IT WAS
COUPLED WITH A THREAT UNLESS THE EMPLOYEE DEALT WITH MANAGEMENT. WHILE
THE FACTS IN THE CASE AT BAR DEMONSTRATE THAT MANAGEMENT DEEMED THE
ROTATION SCHEDULE TO BE NON-NEGOTIABLE, I DO NOT CONSTRUE HIS STATEMENTS
IN THAT REGARD TO BE EQUITABLE WITH A THREAT-- EXPRESS OR IMPLIED-- TO
RETALIATE AGAINST YAX FOR HIS UNIONISM. ACCORDINGLY, I FIND AND
CONCLUDE SALAZAR'S REMARKS TO SAID EMPLOYEE DID NOT CONSTITUTE A THREAT
UNDER 7116(A)(1) OF THE ACT AS ALLEGED IN PARAGRAPH 12(A) OF THE
COMPLAINT.
II. UNILATERAL CHANGE REGARDING TRAINING AND EDUCATION BY ISSUING
STATION MEMO 80-48 ON SEPTEMBER 30, 1980, AND REFUSAL TO FURNISH SAME TO
THE UNION
A. RESPONDENT TAKES THE POSITION THAT (1) IT WAS NOT REQUIRED TO
NEGOTIATE THE IMPACT OR IMPLEMENTATION OF STATION MEMORANDUM 80-48 AND
ITS CONTENTS REGARDING TRAINING AND EDUCATION, AND (2) ASSUMING
ARGUENDO, A CHANGE DID OCCUR BY REASON THEREOF, NO SUBSTANTIAL IMPACT
UPON EMPLOYEES IS SHOWN TO EXIST.
(1) THE EMPLOYER HEREIN STRESSES THE ARGUMENT THAT THE FUNCTION OF
THE COMMITTEE, SET UP BY THE MEMORANDUM DEALING WITH TRAINING AND
EDUCATION OF THE STAFF, CONCERNED PATIENT CARE. AS SUCH, THE PROGRAM
FOCUSED UPON TREATMENT OF THE PATIENT RATHER THAN PERSONNEL PRACTICES OR
WORKING CONDITIONS. IN SUPPORT OF THIS CONTENTION, RESPONDENT CITES
VETERANS ADMINISTRATION MEDICAL CENTER, BATH, N.Y. 4 FLRA NO. 76. A
CLINICAL EXECUTIVE BOARD (CEB) WAS ESTABLISHED BY THE VETERANS
ADMINISTRATION, IN THE CITED CASE, TO ASSURE QUALITY CONTROL OF PATIENT
CARE PROGRAMS THROUGH THE ASSESSMENT OF ACTIVITIES, REPORTS, AND
FINDINGS OF ALL CLINICAL COMMITTEES. THE AUTHORITY HELD THAT NO
OBLIGATION TO BARGAIN EXISTED ON THE PART OF THE EMPLOYER SINCE THE CEB
WAS NOT INVOLVED WITH WORKING CONDITIONS BUT DEALT SOLELY WITH PATIENT
CARE, RESPONDENT HEREIN, IN RELYING UPON THE CITED CASE, ADVERTS TO THE
MEMO DESCRIBING THE TRAVEL AND EDUCATION COMMITTEE HEREIN AS INDICATING
THAT THE "FUNDAMENTAL PURPOSE OF THE PROGRAM IS TO MAINTAIN AND IMPROVE
THE QUALITY OF PATIENT CARE."
NOTWITHSTANDING THE AVOWED PURPOSE OF THE COMMITTEE HEREIN, AS SO
EXPRESSED, I CONCLUDE THAT IN FULFILLING ITS FUNCTION THIS BODY
NECESSARILY MADE DECISIONS AFFECTING EMPLOYEES' WORKING CONDITIONS.
THUS, IT IS SEEN THAT THE COMMITTEE PASSED UPON REQUESTS BY INDIVIDUALS
TO ATTEND TRAINING CONFERENCES, AND, IN SO DOING, APPROVED OR
DISAPPROVED FUNDING REQUIREMENTS. IN RESPECT TO THE LATTER, DECISIONS
ARE MADE AS TO THE AMOUNT OF MONEY WHICH THE INDIVIDUALS WILL RECEIVE
FOR ATTENDING MEETINGS. FURTHER, BASED ON A PRIORITY SYSTEM ESTABLISHED
UNDER THE NEW PLAN, THE COMMITTEE DECIDED WHO WOULD ATTEND THESE
CONFERENCES. DETERMINATIONS OF THIS NATURE INVOLVE, IN MY OPINION,
CONSIDERABLY MORE THAN PATIENT CARE CONCERNS. SINCE THEY AFFECT THE
SELECTION OF EMPLOYEES WHO ARE ENTITLED TO AVAIL THEMSELVES OF THE
TRAINING SESSIONS, AS WELL AS THE MONIES TO BE PAID THEM. I AM
CONSTRAINED TO CONCLUDE THE COMMITTEE'S ROLE IMPACTS UPON CONDITIONS OF
EMPLOYMENT.
FURTHER, I REJECT RESPONDENT'S POSITION THAT THE STATION MEMO 80-48
MERELY REFLECTS A DIFFERENT ORGANIZATION OF A COMMITTEE; THAT NO CHANGE
WAS EFFECTED IN THE POLICY REGARDING ATTENDANCE AT MEETINGS. PRIOR TO
THE SAID MEMORANDUM ANNOUNCING THE TRAINING AND EDUCATION COMMITTEE,
REQUESTS FOR ATTENDANCE AT EDUCATIONAL MEETINGS WERE HANDLED ON A
FIRST-COME FIRST-SERVE BASIS. UNDER THE NEW PROGRAM A PRIORITIZATION
PLAN DETERMINED WHICH INDIVIDUAL SHOULD HAVE PRIORITY TO ATTEND THE
CONFERENCES. TRAINING NEEDS WERE RANKED BY THE COMMITTEE AND PRIORITIES
BASED THEREON. MOREOVER, UNDER THE OLD ARRANGEMENT THE SUBCOMMITTEE ON
EDUCATION-- PREDECESSOR TO THE NEW COMMITTEE-- RECOMMENDED FUNDING HALF
THE PER DIEM FOR THE TRAINEE AND HIS TRAVEL EXPENSE, WHILE THE
INDIVIDUAL PAID THE TUITION EXPENSE. IN AT LEAST ONE INSTANCE, /13/ THE
INDIVIDUAL (DR. BLAKE) WAS AWARDED A STATED SUM OF $100 FOR TUITION TO
ATTEND A CLINICAL CONFERENCE WHEREAS HE REQUESTED $630 TO COVER HIS
EXPENSES THEREFOR. ACCORDINGLY, THE EMPLOYEE DID NOT ATTEND THE SESSION.
BASED UPON THE FOREGOING, I AM PERSUADED THAT THE TRAINING AND EDUCATION
COMMITTEE DEALT WITH MATTERS INVOLVING WORKING CONDITIONS OF THE
EMPLOYEES; THAT, MOREOVER, CHANGES IN THE PLAN REGARDING EDUCATIONAL
NEEDS FOR ITS STAFF RESULTED FROM THE ESTABLISHMENT OF THIS BODY
PURSUANT TO MEMORANDUM 80-48.
(2) IT IS ALSO MAINTAINED BY RESPONDENT THAT NO SUBSTANTIAL IMPACT
UPON EMPLOYEES RESULTED FROM THE ESTABLISHMENT OF THE NEW COMMITTEE. I
DISAGREE. WHILE INDIVIDUALS ATTENDED CONFERENCES IN ACCORD WITH THEIR
TIMELY REQUESTS IN PREVIOUS YEARS, THE NEW MANAGEMENT SET UP A SYSTEM OF
PRIORITIES DETERMINED BY THE COMMITTEE. THE PRIORITIZATION PLAN
NECESSARILY AFFECTS THE STAFF SINCE THOSE WHO DESIRE TO ATTEND
CONFERENCES OR MEETINGS MAY NOT OBTAIN APPROVAL. THUS, THE TRAINING AND
EDUCATION OF INDIVIDUALS WILL DEPEND UPON CONSIDERATIONS REACHED UNDER
THE NEW SYSTEM. FURTHER, FUNDING WILL NOT BE UNIFORM FOR ATTENDANCE AT
THE MEETINGS, AND EMPLOYEES MAY BE CALLED UPON TO FINANCE THEIR TRIPS
THERETO TO A GREATER EXTENT THAN PREVIOUSLY. THE EMPLOYER REFERS TO
OFFICE OF PROGRAM OPERATIONS, ET. AL. 5 FLRA 45 IN CONTENDING THAT ANY
IMPACT HEREIN IS INSUBSTANTIAL. HOWEVER, THE CITED CASE INVOLVED
APPOINTING AS AN ACTING SUPERVISOR A FIELD REPRESENTATIVE. IN THAT
INSTANCE SUCH APPOINTMENT RESULTED IN NO ADVERSE IMPACT UPON THE OTHER
EMPLOYEES. NO CHANGES OCCURRED IN THEIR WORK PERFORMANCE, AND IT DID NOT
APPEAR THAT MANAGEMENT'S ACTION IMPINGED UPON THE EMPLOYEES IN ANY
SIGNIFICANT RESPECT. I VIEW THE SITUATION IN THE CASE AT BAR TO BE
SUBSTANTIALLY DIFFERENT SINCE MANAGEMENT'S DECISION REGARDING THE
COMMITTEE AFFECTED THE EMPLOYEE'S TRAINING AND EDUCATIONAL FUNCTIONS.
IN SUM, I AM SATISFIED, BASED UPON THE EVIDENCE ADDUCED HEREIN, THAT
THE ESTABLISHMENT OF THE TRAINING AND EDUCATION COMMITTEE WAS A CHANGE
IN RESPECT TO ATTENDANCE BY EMPLOYEES AT CONFERENCES; THAT IT WAS A
NEGOTIABLE MATTER /14/ WHICH IMPACTED UPON THE WORKING CONDITIONS OF THE
STAFF. AS SUCH, RESPONDENT WAS NOT FREE TO UNILATERALLY TAKE SUCH
ACTION, BUT WAS OBLIGED TO BARGAIN WITH THE UNION IN RESPECT TO THE
CHANGE. IT IS RECOGNIZED BY THE AUTHORITY THAT REGULATIONS WHICH ALTER
ESTABLISHED POLICIES CONCERNING CONDITIONS OF EMPLOYMENT, AND WHICH ARE
ISSUED UNILATERALLY WITHOUT AFFORDING THE BARGAINING REPRESENTATIVE AN
OPPORTUNITY TO CONFER THEREON, ARE VIOLATIVE OF THE ACT. PENNSYLVANIA
ARMY AND AIR NATIONAL GUARD AND ACT, 1 FLRA NO. 38. THUS, I FIND AND
CONCLUDE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE ACT BY
UNILATERALLY CHANGING ITS ESTABLISHED COMMITTEES AND PLANS FOR THE
EDUCATION AND TRAINING OF ITS EMPLOYEES.
(3) IN RESPECT TO SUPPLYING THE UNION HEREIN WITH A COPY OF THE
PRIORITIZATION OF TRAINING PLANS, RESPONDENT CONTENDS THE MEMORANDUM
SOUGHT WAS A MANAGEMENT PAPER, AND, FURTHER, THAT IT HAS NOT BEEN SHOWN
THE DATA WAS RELEVANT AND NECESSARY FOR THE UNION TO EXERCISE ITS
REPRESENTATIONAL DUTIES.
IT IS NOW WELL ESTABLISHED THAT AN EMPLOYER IS REQUIRED TO FURNISH A
BARGAINING REPRESENTATIVE REQUESTED INFORMATION WHICH IS NECESSARY AND
RELEVANT TO THE FULFILLMENT OF THE LATTER'S FUNCTIONS ON BEHALF OF UNIT
EMPLOYEES. IN DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
SERVICE, A/SLMR NO. 902, IT WAS CONTENDED BY THE RESPONDENT THEREIN THAT
BOTH A PERSONNEL MANAGEMENT EVALUATION REPORT AND A PLAN WERE
INTRAMANAGERIAL COMMUNICATIONS AND PRIVILEGED. THESE WERE SOUGHT BY THE
UNION IN CONNECTION WITH BARGAINING OVER A MERIT PROMOTION PLAN. THIS
CONTENTION WAS REJECTED BY THE ASSISTANT SECRETARY, WHO CONCLUDED THAT
THE DOCUMENTS, WHICH WERE FORMULATED FOLLOWING A SURVEY BY A
"TRI-PARTITE" TEAM, CONTAINED INFORMATION NECESSARY AND RELEVANT TO
ENABLE THE UNION TO FULFILL ITS COLLECTIVE BARGAINING REPRESENTATIVE. IN
THE CASE AT BAR, I LIKEWISE DO NOT DEEM THE PRIORITIZATION TRAINING
PLANS TO BE MANAGEMENT /15/ MATERIAL WHICH IS SHIELDED FROM DISCLOSURE.
THE PLANS FOR PRIORITIES IN REGARD TRAINING AND EDUCATION CONCERN THE
ASSIGNMENT OF THE STAFF TO SUCH CONFERENCES OR MEETINGS. AS SUCH, THEY
DEAL WITH BASIC DETERMINATIONS WHICH AFFECT THE APPROVAL OR DISAPPROVAL
OF SUCH ASSIGNMENTS, AS WELL AS THE FUNDING THEREFOR. SINCE THEY MUST BE
ADHERED TO BY THE COMMITTEE, THEY INVOLVE ITEMS ABOUT WHICH THE UNION
MAY WELL DESIRE TO BARGAIN ON BEHALF OF THE EMPLOYEES. AS SUCH, I ALSO
CONCLUDE THAT THE DATA IS PRESUMPTIVELY NECESSARY AND RELEVANT FOR THE
UNION TO FULFILL ITS DUTIES. /16/ AS STATED IN THE DEPARTMENT OF JUSTICE
CASE, SUPRA, "IT IS NOT REQUIRED THAT THE DOCUMENTS SOUGHT BE THE SOLE
BASIS FOR PROPOSALS, OR THAT THEY FORM THE BASIS FOR FIXED, FINAL
PROPOSALS, BEFORE THEY BECOME NECESSARY AND RELEVANT TO THE EXCLUSIVE
REPRESENTATIVE FOR NEGOTIATING PURPOSES." ACCORDINGLY, I CONCLUDE
RESPONDENT HEREIN FLOUTED SECTION 7114(B)(4) AND FAILED TO FULFILL ITS
DUTY UNDER THAT SECTION IN THIS REGARD. THEREFORE, I FIND THAT, IN
ADDITION TO VIOLATING SECTION 7116(A)(1) AND (5) OF THE ACT, RESPONDENT
ALSO VIOLATED SECTION 7116(A)(8) THEREOF.
III. UNILATERAL ASSIGNMENT TO SOCIAL WORKERS OF WRITING DISCHARGE
SUMMARIES-- AND ALLEGED "FORMAL DISCUSSION" WITH THE EMPLOYEES WITHOUT
GIVING THE UNION AN OPPORTUNITY TO BE PRESENT
A. IT IS CLEAR THAT, UNDER THE ACT, AN EMPLOYER MAY MAKE ASSIGNMENTS
TO EMPLOYEES WITHOUT BARGAINING AS TO THE DECISION ITSELF. (SECTION
7106(A)(2)(A)). NEVERTHELESS, IT IS OBLIGED TO BARGAIN WITH THE
EMPLOYEES' REPRESENTATIVE REGARDING THEIR IMPACT AND IMPLEMENTATION.
ALTHOUGH NOT DISPUTING THE OBLIGATION IMPOSED UPON MANAGEMENT IN THIS
REGARD, RESPONDENT MAINTAINS NO CHANGE OCCURRED IN WORKING CONDITIONS
WHEN THE PREPARATION OF DISCHARGE SUMMARIES WAS GIVEN TO SOCIAL WORKERS.
FURTHER, IT INSISTS THAT, IF IT BE CONCLUDED THAT SUCH DID OCCUR, NO
MORE THAN A MINIMAL IMPACT UPON THE SOCIAL WORKERS RESULTED THEREFROM.
RECORD FACTS SHOW THAT, FOR THE MOST PART, THE MEDICAL STAFF PREPARED
THE DISCHARGE SUMMARIES PRIOR TO 1981. IN AN EFFORT TO RELIEVE THE
DOCTORS FROM THIS TASK, MANAGEMENT DECIDED TO UTILIZE THE SOCIAL WORKERS
FOR MAKING SUCH REPORTS. WHILE IT IS TRUE THAT ONE OR TWO SUCH
INDIVIDUALS PREPARED THE SUMMARIES IN THE PAST, IT WAS MANAGEMENT'S
INTENT IN DECEMBER TO ASSIGN THIS DUTY TO ALL SOCIAL WORKERS. MOREOVER,
AT LEAST SIX NEW SUCH INDIVIDUALS ARE NOW WRITING THE SUMMARIES AS PART
OF THEIR DUTIES. THIS ADDITIONAL TASK REPRESENTS, IN MY OPINION, A
CHANGE IN WORKING CONDITIONS SINCE THESE SOCIAL WORKERS WERE NOT CALLED
UPON TO PERFORM SUCH DUTIES IN THE PAST. WITH A FEW EXCEPTIONS, RECORD
FACTS PERFORM SUCH DUTIES IN THE PAST. WITH A FEW EXCEPTIONS, RECORD
FACTS DISCLOSE THAT IT WAS AN ESTABLISHED PRACTICE FOR THOSE IN THE
MEDICAL STAFF, OTHER THAN SOCIAL WORKERS, TO PREPARE THE SUMMARIES. TO
IMPOSE AN ADDITIONAL DUTY UPON EMPLOYEES, WHICH WAS NOT PERFORMED IN THE
COURSE OF THIS JOB FUNCTIONS, CONSTITUTES A CHANGE IN WORKING
CONDITIONS. IN SUCH AN INSTANCE, AN EMPLOYEE IS REQUIRED TO NEGOTIATE
WITH THE COLLECTIVE BARGAINING REPRESENTATIVE AS TO THE IMPACT AND
IMPLEMENTATION THEREOF. SEE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA, 6 FLRA NO. 22. I AM PERSUADED THAT, IN THE CASE AT BAR, THE
ASSIGNMENT OF THIS TASK TO THE SOCIAL WORKERS WAS A UNILATERAL /17/
CHANGE IN THEIR WORKING CONDITIONS, AND UNLESS IT CAN BE CONCLUDED THAT
NO IMPACT RESULTED THEREFROM, RESPONDENT'S ACTION RAN AFOUL OF THE
STATUTE.
WHILE IT IS TRUE THAT AN EMPLOYER SHOULD NOT BE OBLIGED TO NEGOTIATE
AS TO IMPACT OF A CHANGE WHICH IS INSIGNIFICANT, I CANNOT AGREE WITH
RESPONDENT HEREIN THAT THE EFFECT OF THE ADDED ASSIGNMENT TO THE SOCIAL
WORKERS WAS INSUBSTANTIAL. NEARLY HALF OF SUCH EMPLOYEES ARE NOW
PREPARING DISCHARGE SUMMARIES, WHEREAS ONLY ONE OR TWO OF THEM DID SO
PREVIOUSLY. MOREOVER, THE PREPARATION OR DRAFTING OF SUCH REPORTS
REQUIRES NEARLY ONE HOUR'S AVERAGE TIME. WHILE EACH WORKER MAY WRITE
ONLY A ROUTINE OR MEANLY NATURE. THUS, MANAGEMENT AGREED TO TRAIN BUZAN
SINCE HE HAD NO EXPERIENCE IN THIS REGARD. MOREOVER, THE DATA WHICH IS
UTILIZED TO PREPARE THE REPORTS INVOLVE MEDICAL AND DIAGNOSTIC TERMS.
APART FROM THE FACT THAT THE SOCIAL WORKERS WERE PERFORMING WORK WHICH
WAS NOT A PORTION OF THEIR ESTABLISHED DUTIES, THE NEW ASSIGNMENT
REQUIRED ADDITIONAL TIME AND STUDY. /18/ TO SOME EXTENT, AT LEAST, IT
IMPOSED UPON THEIR REGULAR TASKS AS SOCIAL WORKERS. IN SUM, I AM
CONSTRAINED TO CONCLUDE THAT THERE WAS A SIGNIFICANT IMPACT UPON THESE
EMPLOYEES BY ASSIGNING THEM THE PREPARATION OF DISCHARGE SUMMARIES;
THAT RESPONDENT'S UNILATERAL ACTION IN THIS REGARD WAS VIOLATIVE OF
SECTIONS 7116(A)(1) AND (5) OF THE ACT.
(4) AN ISSUE IS PRESENTED FOR DETERMINATION AS TO WHETHER THE MEETING
ON DECEMBER 19 MAY BE TERMED A "FORMAL DISCUSSION" UNDER 7114(A)(2)(A)
OF THE ACT SO AS TO REQUIRE RESPONDENT TO NOTIFY THE UNION AND ALLOW IT
TO BE REPRESENTED THEREAT. WHILE GENERAL COUNSEL SO CONSTRUES SAID
MEETING, RESPONDENT CONTENDS IT WAS CALLED TO INFORM MELINO AND BUZAN
THAT THEY SHOULD PERFORM THE TASK OF WRITING DISCHARGE SUMMARIES.
THEREFORE, AS ARGUED BY THE EMPLOYER, IT CANNOT PROPERLY BE DESCRIBED AS
A FORMAL DISCUSSION UNDER THE STATUTE.
AS SET FORTH IN THE ABOVE-MENTIONED SECTION OF THE ACT, AN EXCLUSIVE
REPRESENTATIVE MUST BE AFFORDED AN OPPORTUNITY TO BE REPRESENTED AT ANY
FORMAL DISCUSSION BETWEEN THE AGENCY AND ITS EMPLOYEES REGARDING ANY
GRIEVANCE, OR PERSONNEL POLICY OR PRACTICE, OR OTHER GENERAL CONDITION
OF EMPLOYMENT. IN THE INSTANT CASE RESPONDENT'S PURPOSE IN CONVENING THE
SESSION REGARDING DECEMBER 19 WAS, IN MY OPINION, NOT TO DISCUSS THE
ASSIGNMENT TO THE SOCIAL WORKERS OF THE PREPARATION OF DISCHARGE
SUMMARIES. THE DIRECTOR CALLED IN THE TWO EMPLOYEES BECAUSE HE LEARNED
THESE WORKERS WERE NOT PERFORMING THE NEW DUTY RECENTLY ASSIGNED THEM.
HIS INTENTION WAS TO ASCERTAIN THE REASON FOR THIS REFUSAL.
GENERAL COUNSEL ADVERTS TO THE CASE OF NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA, SUPRA, IN SUPPORT OF ITS POSITION THAT RESPONDENT
HELD A FORMAL DISCUSSION WITH MELINO AND BUZAN REGARDING THE DRAFTING OF
THE SUMMARIES. IN THE CITED CASE MANAGEMENT MET WITH CRANE OPERATORS TO
INFORM THEM THAT THERE WOULD BE A CHANGE IN THEIR DUTIES, AND THE
MEETINGS WERE HELD TO DISCUSS THE CHANGE IN JOB DUTIES AND WORKING
CONDITIONS. THE NORFOLK NAVAL SHIPYARD CASE IS INAPPOSITE IN RESPECT TO
THE FACTUAL SITUATION OF THE CASE AT BAR. THE TWO SOCIAL WORKERS WERE
NOT CALLED TO A MEETING BY RESPONDENT TO DISCUSS THE PROCEDURES OR
ARRANGEMENTS CONCERNING THE ASSIGNMENT OF DRAFTING DISCHARGE SUMMARIES,
NOR WERE THEY CONVENED TO INFORM THEM THAT THEY WERE BEING ASSIGNED THIS
DUTY. THE EMPLOYER HEREIN MET WITH THOSE WORKERS MERELY TO INQUIRE WHY
THEY WERE NOT PERFORMING THE ASSIGNMENT ITSELF. IT HAS BEEN HELD IN THE
PUBLIC SECTOR THAT DISCUSSIONS BY MANAGEMENT WITH EMPLOYEES CONFINED TO
AN ALLEGED FAILURE TO FOLLOW A RULE OR REGULATION WAS NOT A "FORMAL"
DISCUSSION OBLIGATING AN EMPLOYER TO AFFORD UNION REPRESENTATION
THEREAT. DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, ALAMEDA,
CALIFORNIA. A/SLMR NO. 781 SESSIONS DESIGNED TO DISCUSS EMPLOYEES'
SHORTCOMINGS DUE THEIR ABUSIVE LANGUAGE, OR TO CONSIDER A FAILURE TO
FOLLOW A REQUIREMENT REGARDING WEARING UNIFORMS AT A MILITARY BASE, WERE
NOT DEEMED TO BE DISCUSSIONS ABOUT GENERAL WORKING CONDITIONS AND HENCE
NOT "FORMAL" DISCUSSIONS. DISCUSSIONS. DEPARTMENT OF DEFENSE, NATIONAL
GUARD BUREAU, TEXAS AIR NATIONAL GUARD, A/SLMR NO. 336. IN THE INSTANT
CASE RESPONDENT'S ATTEMPT TO ASCERTAIN WHY MELINO AND BUZAN WERE NOT
PERFORMING THEIR ASSIGNMENT DIFFERS FROM MEETINGS AT WHICH MANAGEMENT
DISCUSSES THE ASSIGNED WORK, ITS PROCEDURES OR THE IMPLEMENTATION
THEREOF. CF. ROCKY MOUNTAIN ARSENAL, DENVER, COLO. A/SLMR NO. 933 WHERE
THE EMPLOYER MET WITH INDIVIDUALS TO DISCUSS A REASSIGNMENT AND DWELT ON
THE PROCEDURES IN RESPECT THERETO. THUS, I CONCLUDE THE MEETING HELD ON
DECEMBER 19 WITH THE TWO SOCIAL WORKERS WAS NOT A FORMAL DISCUSSION
WITHIN THE MEANING OF 7114(A)(2)(A) OF THE ACT; THAT BY FAILING TO
NOTIFY THE UNION HEREIN FOR REPRESENTATION THEREAT RESPONDENT DID NOT
VIOLATE SECTIONS 7116(A)(1) AND (5) OF THE STATUTE.
IV. UNILATERAL CHANGE REGARDING RECALLING TELEPAGER ISSUED TO UNION
PRESIDENT
IT IS ASSERTED BY GENERAL COUNSEL THAT THE ISSUANCE OF THE TELEPAGER
TO UNION PRESIDENT NATHER IN OCTOBER TO CONDUCT, INTER ALIA, UNION
BUSINESS CREATED A PRIVILEGE WHICH BECAME A CONDITION OF EMPLOYMENT.
FURTHER, THE REMOVAL OF THE PRIVILEGE WAS EFFECTED UNILATERALLY BY
RESPONDENT IN VIOLATION OF THE ACT. CONTRARIWISE, THE EMPLOYER HEREIN
INSISTS THERE WAS NO UNILATERAL ACTION TAKEN; THAT THE UNION OFFICIAL
NEVER REQUESTED BARGAINING REGARDING SUCH REMOVAL, AND NONE WOULD HAVE
BEEN REQUIRED.
IN VETERANS ADMINISTRATION, VETERANS ADMINISTRATION, REGIONAL OFFICE,
NEW YORK REGION, A/SLMR NO. 694 THE PRESIDENT OF THE COLLECTIVE
BARGAINING REPRESENTATIVE, WHO WAS ALSO AN EMPLOYEE, WAS PROVIDED A
TELEPHONE TO FACILITATE THE TRANSACTION OF UNION BUSINESS. AFTER
CONCLUDING THAT SOME DISRUPTION OCCURRED AS A RESULT OF THE PHONE,
MANAGEMENT REMOVED IT FROM THE UNION PRESIDENT'S DESK. IT WAS HELD THAT
SUCH ACCORDED USE OF THE TELEPHONE WAS A CONDITION OF EMPLOYMENT WHICH
COULD NOT BE UNILATERALLY DISCONTINUED BY THE EMPLOYER. DESPITE
DISCUSSIONS WITH THE UNION OFFICIAL AFTER ITS REMOVAL, IT WAS CONCLUDED
THAT THE PHONE WAS AN IRREVERSIBLE FAIT ACCOMPLI. AS SUCH IT WAS A
UNILATERAL CHANGE CONSTITUTING A REFUSAL TO BARGAIN.
WHILE THE PRIVILEGE GRANTED THE UNION PRESIDENT IN THE CITED CASE
ENDURED FOR TWO YEARS, AS CONTRASTED WITH THE FACT THAT NATHER USED THE
TELEPAGER FOR TWO MONTHS, THE HOLDING IN THE EARLIER CASE SEEMS APPOSITE
HEREIN. RESPONDENT CONFERRED A PRIVILEGE UPON THE UNION PRESIDENT IN THE
CASE AT BAR WHICH, ALBEIT OF SHORT DURATION, CONSTITUTED A WORKING
CONDITION. NATHER UTILIZED THE TELEPAGER TO CONDUCT UNION BUSINESS AND
COMMUNICATE WITH OTHER EMPLOYEES AS THEIR BARGAINING REPRESENTATIVE.
ALTHOUGH THE USE THEREOF LASTED FOR A SHORT PERIOD, RESPONDENT
ESTABLISHED THE BENEFIT AS A WORKING CONDITION.
WHILE NOT FREE FROM SOME DOUBT, I AM PERSUADED THAT THE DISCUSSIONS
NATHER HAD WITH TREMBLAY OR ROBERTSON, MANAGEMENT'S REPRESENTATIVES, DID
NOT AFFORD AN OPPORTUNITY FOR BARGAINING AS TO THE DISCONTINUANCE OF THE
INSTRUMENT. THUS, IT IS NOTED THAT TREMBLAY NOTIFIED NATHER TO TURN IN
THE "BEEPER"; THAT THE ISSUANCE THEREOF WAS AN ADMINISTRATIVE MISTAKE;
AND THAT A DECISION HAD BEEN MADE TO RECALL THE ITEM. ALTHOUGH NATHER
PROTESTED, NEITHER TREMBLAY NOR ROBERTSON TOOK THE OCCASION TO INDICATE
THAT A DISCUSSION WAS IN ORDER. IN TRUTH, THE WITHDRAWAL OF THE
TELEPAGER WAS, AS IN THE CITED CASE, A FAIT ACCOMPLI AS FAR AS
MANAGEMENT WAS CONCERNED. I DO NOT VIEW THE DISCUSSIONS WHICH TREMBLAY
OR THE DIRECTOR HAD WITH NATHER TO CONSTITUTE "BARGAINING" SESSIONS, NOR
CAN IT BE CONCLUDED THAT RESPONDENT WAS OPEN TO SUGGESTIONS OR
CONSIDERATIONS ON THE PART OF NATHER IN THIS REGARD. AT THAT POINT THE
EMPLOYER HAD ALREADY ACTED UNILATERALLY IN MAKING ITS DECISION TO RECALL
THE TELEPAGER, AND THE DIRECTIVE TO THE UNION OFFICIAL WAS IN
FURTHERANCE THEREOF. ACCORDINGLY, I CONCLUDE THAT THE RECALL OF THE
TELEPAGER WAS A UNILATERAL ACT BY RESPONDENT WHICH CHANGED A CONDITION
OF EMPLOYMENT IN VIOLATION OF 7116(A)(1) AND (5) OF THE STATUTE.
V. REFUSAL TO BARGAIN REGARDING IMPACT AND IMPLEMENTATION OF THE
RELOCATIONS AND REASSIGNMENT OF RESPONDENT'S NURSING STAFF
IT IS ASSERTED BY THE GENERAL COUNSEL THAT, COMMENCING ON NOVEMBER 13
AND CONTINUING THEREAFTER, RESPONDENT REFUSED TO NEGOTIATE AS TO THE
IMPACT AND IMPLEMENTATION OF ITS DECISION TO RENOVATE CERTAIN BUILDINGS
AT CANANDAIGUA, N.Y. THE RENOVATION INVOLVED THE REASSIGNMENT OF SOME
NURSES FROM ONE DIVISION TO ANOTHER WHICH WAS ACCOMPLISHED ON DECEMBER
14. GENERAL COUNSEL CONTENDS, FURTHER, THE EMPLOYER BY-PASSED THE UNION
BY SOLICITING VOLUNTEERS FOR REASSIGNMENT, AND THAT THE FINAL ACTION WAS
UNILATERAL IN NATURE - ALL WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO
BARGAIN AS TO THE PROCEDURES TO BE FOLLOWED WITH RESPECT THERETO.
RESPONDENT MAINTAINS THAT IT HAS NO DUTY TO NEGOTIATE THE IMPACT AND
IMPLEMENTATION OF ITS RENOVATION BECAUSE NO CONDITION OF EMPLOYMENT WERE
CHANGED. IT INSISTS THE INDIVIDUALS REMAINED AS REGISTERED NURSES,
PERFORMED THE IDENTICAL DUTIES, AND WERE SUPERVISED BY THE SAME PERSONS
AFTER THE RELOCATION. MOREOVER, IT CONTENDS THAT ANY CHANGE, IF IT
EXISTED, WAS INSUBSTANTIAL-- THAT ONLY ONE FULL TIME AND TWO PART-TIME
NURSES WERE SWITCHED FROM A PSYCHIATRIC TO A MEDICAL WARD. FINALLY, IT
IS ARGUED THAT MANAGEMENT WAS WILLING TO BARGAIN REGARDING IMPACT AND
IMPLEMENTATION-- ALTHOUGH NOT REQUIRED TO DO SO-- BUT NEVER RECEIVED AN
AFFIRMATIVE RESPONSE IN REGARD THERETO FROM THE UNION.
IN DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER, A/SLMR NO
1101, THE EMPLOYER ASSIGNED FIVE EMPLOYEES TO A DIFFERENT AREA TO WORK
ON SPECIAL REPORTS. IT WAS ARGUED THAT THE ASSIGNMENT DID NOT CREATE A
SIGNIFICANT IMPACT ON PERSONNEL POLICIES OR WORKING CONDITIONS. THIS
ARGUMENT WAS REJECTED. THE ACTION BY MANAGEMENT PROMPTED CONCERNS BY THE
UNION AS TO WHETHER ASSIGNMENTS WOULD BE VOLUNTARY AND ROTATIONAL, THE
HOURS TO BE WORKED AND WHETHER OVERTIME WOULD BE INVOLVED. IT WAS HELD
THAT SUCH ISSUED ARE SUBSTANTIAL, AND REQUIRE NEGOTIATION THEREON
DESPITE MANAGEMENT'S PREROGATIVE TO MAKE THE ASSIGNMENT. THE SAME
HOLDING PREVAILED IN DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL,
TOBACCO AND FIREARMS, A/SLMR NO. 1045 WHERE FOUR INSPECTORS WERE
INVOLUNTARILY TRANSFERRED TO OTHER LOCATIONS WHICH WERE UNDERSTAFFED.
IT WAS CONCLUDED THAT THE EXCLUSIVE REPRESENTATIVE MUST BE AFFORDED THE
OPPORTUNITY TO NEGOTIATE REGARDING THE PROCEDURES MANAGEMENT INTENDS TO
OBSERVE IN EFFECTUATING ITS DECISION, AND AS TO THE IMPACT UPON
EMPLOYEES ADVERSELY AFFECTED. /19/
WHILE MANAGEMENT MAY PROPERLY DECIDE TO RELOCATE OR REASSIGN
EMPLOYEES TO OTHER DIVISIONS OR AREAS, IT IS CLEAR THAT THE PROCEDURES
TO BE FOLLOWED, AND THE IMPACT UPON EMPLOYEES ADVERSELY AFFECTED, MUST
BE NEGOTIATED WITH THE COLLECTIVE BARGAINING REPRESENTATIVE. IN THE CASE
AT BAR UNION REPRESENTATIVE JENSEN RAISED CONCERNS WITH REITER ON
NOVEMBER 13 OVER SEVERAL EFFECTS OF THE RENOVATIONS AND THE RESULTANT
REASSIGNMENT OF THE NURSES. THUS, SHE RAISED QUESTIONS AS TO (1) WHICH
NURSES WOULD BE TRANSFERRED, (2) THE METHOD OF SELECTION, (3) THE
OPPORTUNITY AFFORDED SAID NURSES TO RETURN TO THEIR ORIGINAL UNIT, (4)
UNIFORM ALLOWANCES, (5) HOLIDAYS TO BE TAKEN WITH DAYS OFF TO BE
DIFFERENT. REITER'S RESPONSE TO THOSE CONCERNS BY THE UNION
REPRESENTATIVE, AS WELL AS SUBSEQUENT EVENTS, BELIE ANY ATTEMPT BY
MANAGEMENT TO DECLARE THAT IT STOOD READY AND WILLING TO BARGAIN ON THE
PROCEDURES OR THE IMPACT AND IMPLEMENTATION OF THE RENOVATION AND
REASSIGNMENTS. HE REFUSED TO DISCLOSE THE NAMES OF THOSE NURSES
INVOLVED, AND INFORMED JENSEN THAT THE HEAD NURSE AND HEAD SUPERVISOR
WOULD MAKE THE DECISIONS AS TO WHICH NURSES WOULD BE TRANSFERRED. AT A
LATER DATE, DECEMBER 5, THE PARTIES AND THEIR REPRESENTATIVES MET TO
DISCUSS THESE MATTERS AS A RESULT OF A WRITTEN REQUEST BY ALDER TO
NEGOTIATE THE "PROPOSED REASSIGNMENT OF NURSING SERVICE EMPLOYEES DUE TO
RENOVATION PROJECT." THE UNION MADE SUGGESTIONS IN RESPECT TO THE
MATTERS OVER WHICH THEY HAD PREVIOUSLY VOICED CONCERN. HOWEVER,
RESPONDENT'S OFFICIALS STATED THE MATTER WAS NOT NEGOTIABLE, AND IT WAS
UNFORTUNATE THAT INCONVENIENCES OCCURRED. MOREOVER, IN A LETTER DATED
DECEMBER 8 CHIEF OF PERSONNEL WILSON ADVISED NATHER THAT MANAGEMENT DID
NOT BELIEVE THERE WOULD BE ANY ADVERSE IMPACT. IN ADDITION, REITER
INFORMED JENSEN BY LETTER ON DECEMBER 8 THAT THE IMPACT, IF ANY, ON
PROFESSIONAL NURSES MUST BE AN EMPLOYEE DETERMINATION.
THE FOREGOING CONVINCES ME THAT, CONTRARY TO RESPONDENT'S CONTENTION,
MANAGEMENT NEITHER INTENDED TO, NOR DID, NEGOTIATE WITH THE UNION
REGARDING IMPACT AND IMPLEMENTATION OF THE REASSIGNMENT PRECIPITATED BY
THE RENOVATION. WHILE REITER AND WILSON MADE CASUAL REMARKS THAT THE
REASSIGNMENTS WERE NOT PERMANENT AND REQUESTS COULD BE MADE TO RETURN TO
ORIGINAL UNITS LATER, AND THAT THE UNION COULD ADVISE MANAGEMENT OF ANY
ILL EFFECTS NOT CONSIDERED, I DO NOT VIEW THE MEETINGS IN NOVEMBER OR
DECEMBER AS CONSTITUTING NEGOTIATION. BOTH OFFICIALS OF RESPONDENT
DECLARED THAT NO ADVERSE IMPACT WAS APPARENT TO THEM; NONE OF THE
PROPOSALS BY THE UNION REGARDING THE MATTERS IT DEEMED TO IMPACT
ADVERSELY UPON THE NURSES WERE DISCUSSED IN DEPTH; AND, IN TRUTH, THE
EMPLOYER'S REPRESENTATIVES EMPHASIZED THAT NO IMPACT WAS APPARENT, AND
IF THERE WERE ANY, IT SHOULD BE DECIDED BY THE EMPLOYEES.
NOR DO I AGREE WITH RESPONDENT THAT ANY IMPACT HEREIN WAS
INSUBSTANTIAL. APART FROM THE FACT THAT FOUR NURSES WERE TRANSFERRED
FROM A PSYCHIATRIC TO A MEDICAL UNIT, TEN NURSES IN BUILDING 1C ARE NOW
ON A REGULAR ROTATION BASIS. THE DUTIES IMPOSED UPON THE NURSES IN THE
MEDICAL UNIT DIFFER FROM THOSE REQUIRED IN THE PSYCHIATRIC AREA.
MOREOVER, THE RELOCATIONS TO BUILDING 1C RESULTED IN JENSEN LOSING A
HOLIDAY PREVIOUSLY ARRANGED. THE METHOD OF SELECTION FOR REASSIGNMENT,
ROTATIONAL SCHEDULES, HOLIDAYS, AND RETURN TO ORIGINAL STATION, ARE ALL
SERIOUS MATTERS CREATING A SUFFICIENT IMPACT UPON THE EMPLOYEES
INVOLVED. THUS, I CONCLUDE THAT, BASED ON THE FOREGOING, RESPONDENT
FAILED TO BARGAIN WITH THE UNION REGARDING THE IMPACT AND IMPLEMENTATION
OF ITS REASSIGNMENT OF NURSES DUE TO THE RENOVATION OF THE MEDICAL
CENTER-- ALL IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE ACT. /20/
VII. REFUSAL TO BARGAIN REGARDING IMPACT AND IMPLEMENTATION OF
REASSIGNMENT OF STAFF NURSE SUZANNE LEICHT TO THE DAY SHIFT
WHILE THE GENERAL COUNSEL DOES NOT CONTEST THE RESPONDENT'S RIGHT TO
ASSIGN LEICHT TO THE DAY SHIFT, IT IS CONTENDED THAT THE EMPLOYER IS
OBLIGATED TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION THEREOF. IN
MAKING THIS ASSERTION, THE GENERAL COUNSEL FURTHER INSISTS THAT THE
IMPACT UPON THE REMAINING NURSES ON THE ROTATIONAL SHIFT WAS BOTH
ADVERSE AND SUBSTANTIAL.
BASED ON THE RECORD FACTS HEREIN I DO NOT AGREE WITH THE FOREGOING
CONTENTIONS. THE ASSIGNMENT OF LEICHT TO THE DAY SHIFT ENDURED FOR A
RELATIVELY SHORT PERIOD. BY REMOVING THIS EMPLOYEE FROM THE ROTATIONAL
SCHEDULE, IT WAS NECESSARY FOR SEVERAL NURSES TO WORK FOUR WEEKENDS TO
ABSORB THE TIME LEICHT WOULD HAVE WORKED ON A WEEKEND. THE RECORD DOES
NOT CONTAIN DETAILED DATA /21/ TO WARRANT THE CONCLUSION THAT LEICHT'S
TRANSFER TO THE DAY SHIFT RESULTED IN A SUBSTANTIAL IMPACT UPON THE
OTHER STAFF NURSES ON THE ROTATIONAL SCHEDULE. AS RESPONDENT AVERS IN
ITS BRIEF, THE ASSIGNMENT INCURRED NO GREATER HARDSHIP THAN IF A NURSE
IN THIS SECTION HAD LEFT HER EMPLOYMENT. IT MAY WELL BE ARGUED THAT
LEICHT'S ASSIGNMENT AS A TRAINEE TO BECOME A CLINICAL SPECIALIST
IMPACTED UPON THE OTHER NURSES IN BUILDING 37 AT THE MEDICAL CENTER.
HOWEVER, I AM CONSTRAINED TO CONCLUDE THAT THE EFFECT WAS INSUBSTANTIAL.
MOREOVER, IT MUST BE SHOWN THAT OTHERS, I.E. NURSES AT SAID LOCATION,
WERE ADVERSELY AFFECTED. SEE OFFICE OF PROGRAM OPERATIONS, FIELD
OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 5 FLRA
NO. 45. IN THIS INSTANCE I FIND NO SUCH EFFECT AND CONCLUDE RESPONDENT
DID NOT VIOLATE SECTIONS 7116(A)(1) AND (5) BY FAILING TO BARGAIN WITH
THE UNION REGARDING THE IMPACT OF LEICHT'S TRANSFER TO THE DAY SHIFT.
HAVING FOUND THAT RESPONDENT DID NOT THREATEN UNION STEWARD GARY YAX
WITH DISCIPLINARY ACTION BASED ON HIS UNION ACTIVITIES IN VIOLATION OF
SECTION 7116(A)(1) OF THE ACT; THAT RESPONDENT DID NOT, ON OR ABOUT
DECEMBER 19, 1980, ENGAGE IN A "FORMAL" DISCUSSION WITH UNIT EMPLOYEES,
WITHOUT GIVING THE UNION AN OPPORTUNITY TO BE PRESENT, IN VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE ACT; THAT RESPONDENT, ON OR ABOUT
NOVEMBER 13, 1980, DID NOT "BYPASS" THE UNION AND DEAL DIRECTLY UNIT
EMPLOYEES BY SOLICITING VOLUNTEERS FOR REASSIGNMENT IN VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE ACT; THAT RESPONDENT DID NOT
UNLAWFULLY REFUSE TO BARGAIN WITH THE UNION AS TO THE IMPACT AND
IMPLEMENTATION OF THE ASSIGNMENT OF STAFF NURSE SUZANNE LEICHT TO THE
DAY SHIFT-- IT IS RECOMMENDED THAT PARAGRAPHS 12(A), 13(B), 13(E), AND
13(G) OF THE FIRST AMENDED COMPLAINT BE DISMISSED.
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5) AND
(8) OF THE ACT IN THE PARTICULAR RESPECTS HERETOFORE MENTIONED, IT IS
RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER.
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT THE VETERANS ADMINISTRATION MEDICAL CENTER
(CANANDIAGUA, NEW YORK) SHALL:
1. CEASE AND DESIST FROM:
(A) ESTABLISHING CRITERIA AND INSTITUTING PRIORITY PROCEDURES FOR
FUNDING THE EDUCATION AND
TRAINING OF ITS STAFF EMPLOYEES, AND PROVIDING FOR A TRAVEL AND
EDUCATION COMMITTEE, OR ANY
OTHER BODY, WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT CONSONANT
WITH LAW AND REGULATION, ON
THE DECISION TO EFFECTUATE SUCH ACTIONS.
(B) REFUSING OR FAILING TO FURNISH, UPON REQUEST BY THE AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3306, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE
OF ITS EMPLOYEES, A COPY
OF A "PRIORITIZATION OF TRAINING" MEMORANDUM WHICH IS NECESSARY TO
ENABLE THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO OR ANY OTHER
EXCLUSIVE REPRESENTATIVE,
TO FULFILL ITS DUTIES AS THE BARGAINING REPRESENTATIVE OF THE
EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(C) ASSIGNING TO SOCIAL WORKERS THE DUTY OF WRITING OR PREPARING
DISCHARGE SUMMARIES
WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3306, AFL-CIO,
THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, AND
AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO BARGAIN, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT
AND IMPLEMENTATION OF SUCH ASSIGNMENT.
(D) RECALLING OR WITHDRAWING A TELEPAGER ISSUED TO THE PRESIDENT OF
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO, WITHOUT FIRST NOTIFYING
THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE
EXTENT CONSONANT WITH LAW AND
REGULATION, ON THE DECISION TO MAKE SUCH RECALL OR WITHDRAWAL.
(E) RELOCATING OR REASSIGNING STAFF NURSES AT THE MEDICAL CENTER
WITHOUT FIRST NOTIFYING
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO,
THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO BARGAIN,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT AND
IMPLEMENTATION OF SUCH
RELOCATION OR REASSIGNMENT.
(F) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ACT.
(A) RESCIND, AND WITHDRAW STATION MEMORANDUM 80-48, ISSUED ON
SEPTEMBER 30, 1980, AND ITS
PROVISIONS, WHICH ESTABLISHED CRITERIA AND PRIORITY PROCEDURES FOR
FUNDING THE EDUCATION AND
TRAINING OF ITS STAFF EMPLOYEES, AND PROVIDED FOR A TRAVEL AND
EDUCATION COMMITTEE TO MAKE
RECOMMENDATIONS CONCERNING REQUESTS BY THE STAFF EMPLOYEES FOR
EDUCATIONAL ACTIVITIES.
(B) RESTORE THE PROCEDURES, WHICH EXISTED PRIOR TO ISSUING STATION
MEMORANDUM 80-48
CONCERNING THE EDUCATION AND TRAINING OF STAFF EMPLOYEES, INCLUDING
THE EXISTENCE AND
RECOGNITION OF THE HOSPITAL EDUCATION COMMITTEE AND THE SUBCOMMITTEE
FOR PROFESSIONAL
EDUCATION, AS SET FORTH IN STATION MEMORANDUM NO. 79-127 DATED
OCTOBER 30, 1979.
(C) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, OF ANY
INTENDED DECISION TO CHANGE THE CRITERIA AND PRIORITY PROCEDURES FOR
FUNDING THE EDUCATION AND
TRAINING OF STAFF EMPLOYEES, AND THE ESTABLISHMENT OF ANY NEW
COMMITTEE TO MAKE
RECOMMENDATIONS CONCERNING REQUESTS BY THE STAFF EMPLOYEES FOR
EDUCATIONAL ACTIVITIES, AND,
UPON REQUEST, BARGAIN TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS ON THE DECISION TO
EFFECTUATE SUCH CHANGE.
(D) UPON REQUEST, FURNISH TO THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3306,
AFL-CIO, A COPY OF THE "PRIORITIZATION OF TRAINING" MEMORANDUM WHICH
IS NECESSARY TO ENABLE
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO,
TO FULFILL ITS DUTIES AS
THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(E) RESCIND AND WITHDRAW THE ASSIGNMENT TO THE SOCIAL WORKERS THE
DUTY OF WRITING OR
PREPARING DISCHARGE SUMMARIES.
(F) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, OF ANY
INTENDED DECISION TO ASSIGN THE SOCIAL WORKERS THE DUTY OF WRITING OR
PREPARING DISCHARGE
SUMMARIES, AND, UPON REQUEST, BARGAIN TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON THE
IMPACT AND IMPLEMENTATION OF SUCH ASSIGNMENT.
(G) RESTORE AND REISSUE TO THE PRESIDENT OF THE AMERICAN FEDERATION
OF GOVERNMENT
EMPLOYEES, LOCAL 3306, AFL-CIO THE TELEPAGER PREVIOUSLY ISSUED FOR
USE BY HIM WHILE CONDUCTING
OFFICIAL UNION BUSINESS AT THE MEDICAL CENTER.
(H) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, OF ANY
FUTURE DECISION TO RECALL OR WITHDRAW THE TELEPAGER FROM THE
PRESIDENT OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO, AND, UPON
REQUEST, BARGAIN WITH SUCH
REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON
THE DECISION TO
EFFECTUATE SUCH RECALL OR WITHDRAWAL.
(I) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, OF ANY
FUTURE DECISION TO REASSIGN STAFF NURSES FROM ONE DIVISION OR
LOCATION TO ANOTHER AT THE
MEDICAL CENTER, AND UPON REQUEST, BARGAIN WITH SUCH REPRESENTATIVE,
TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF SUCH
REASSIGNMENT.
(J) POST AT ITS FACILITIES AT CANANDAIGUA, NEW YORK, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE MEDICAL
CENTER AND THEY SHALL BE POSTED FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES,
INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE DIRECTOR SHALL
TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(K) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER, WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
/1/ AT THE HEARING GENERAL COUNSEL'S MOTION TO AMEND THE FIRST
AMENDED COMPLAINT WAS GRANTED IN THE FOLLOWING RESPECTS. (A) BY ADDING
THE WORDS "AND OR UNSPECIFIED REFUSALS" AFTER THE WORDS "DISCIPLINARY
ACTION" IN PARAGRAPH 12(A); (B) BY DESIGNATING PARAGRAPH 11 AND 11(A)
AND ADDING PARAGRAPH 11(B) WHICH RECITES THAT UP TO FEBRUARY 27, 1980
THE UNION WAS THE EXCLUSIVE REPRESENTATIVE OF REGISTERED NURSES (STAFF)
AND INSTRUCTORS, NURSE PRACTITIONERS AND CLINICAL NURSE SPECIALISTS OF
RESPONDENT; (C) IN PARAGRAPHS 13(A) STRIKE OUT THE WORDS "SUCH CHANGES
AND/OR" AND INSERT THE WORD "OVER" AFTER THE WORD "BARGAIN"; (D) IN
PARAGRAPHS 13(G) STRIKE OUT THE WORDS "SUCH CHANGES AND/OR". BY VIRTUE
OF THE LAST TWO AMENDMENTS, GENERAL COUNSEL NO LONGER ALLEGES THE
DECISIONS TO MAKE SUCH CHANGES SET FORTH IN 13(A) AND (G) WERE
BARGAINABLE.
/2/ ALL DATED HEREINAFTER MENTIONED OCCUR IN 1980 UNLESS OTHERWISE
SPECIFIED.
/3/ A DISCHARGE SUMMARY SETS FORTH THE PATIENT'S STATUS, INCLUDING
THE REASON FOR ADMISSION, DIAGNOSIS, TREATMENT AND DISCHARGE PLANS.
/4/ MELINO TESTIFIED SHE DID ONE SUMMARY EACH WEEK, CONSUMING 20-45
MINUTES. BUZAN TESTIFIED HE WROTE A SUMMARY EVERY WEEK AND A HALF,
CONSUMING 90 MINUTES THEREAT.
/5/ A PAGER WHICH HAD ALSO BEEN ISSUED TO SEIU REPRESENTATIVE CHARLES
FLEURY WAS WITHDRAWN IN LATE 1980. IT HAD BEEN GIVEN TO HIM SEVERAL
YEARS EARLIER, AND THE ASSISTANT SERVICE CHIEF TOLD FLEURY IT WAS
RECALLED DUE TO HIS CHANGE OF DUTIES.
/6/ A MINIMUM OF TWO YEARS OF CLINICAL PRACTICE BEYOND GRADUATE WORK
IS REQUIRED TO BECOME A CLINICAL NURSE SPECIALIST. THERE IS NO
DIFFERENCE IN PAY BETWEEN THAT POSITION AND THE STAFF NURSE. LEICHT DID
NOT HAVE THE QUALIFICATIONS TO BE DESIGNATED AS CLINICAL NURSE
SPECIALIST.
/7/ IT IS NOT CONTENDED BY THE GENERAL COUNSEL, NOR DOES THE RECORD
ESTABLISH, THAT MOVING LEICHT TO THE DAY SHIFT ADVERSELY IMPACTED UPON
THIS EMPLOYEE.
/8/ RECORD FACTS SHOW THAT A MINIMUM OF TWO YEARS OF CLINICAL
PRACTICE BEYOND GRADUATE WORK IS REQUIRED TO BECOME A CLINICAL NURSE
SPECIALIST; THAT THERE IS NO DIFFERENCE IN PAY BETWEEN THAT
CLASSIFICATION AND A STAFF NURSE. LEICHT, HOWEVER, LACKED THE EXPERIENCE
TO BE CLASSIFIED AS CLINICAL NURSE SPECIALIST.
/9/ THE UNIFORM ALLOWANCE WAS NOT A PROBLEM FOR NURSES WHO MOVED FROM
BUILDING 6 TO 4.
/10/ REITER TESTIFIED THAT, AT THE DECEMBER 5 MEETING, HE TOLD JENSEN
AND NATHER THAT THE EMPLOYEES THEMSELVES WOULD HAVE TO DETERMINE WHAT,
IF ANY, IMPACT RESULTED FROM THE CONSOLIDATION.
/11/ ROTATIONS TOOK PLACE BEFORE DECEMBER 14 TO COVER VACATION TIMES;
THEREAFTER THEY OCCURRED TO ACCOMMODATE MANAGEMENT'S HAVING A NURSE ON
DUTY AT MIDNIGHT.
/12/ MOREOVER, NO THREAT WAS FOUND TO EXIST IN THE REMARKS OF THE
SCHOOL SUPERINTENDENT IN DEPARTMENT OF THE ARMY, FORT BRAGG SCHOOLS, 3
FLRA NO. 57. HIS COMMENT REGARDING NOT WANTING COLLECTIVE BARGAINING IN
THE SCHOOL WERE HELD TO HAVE INTERFERED WITH THE RIGHT OF TEACHERS TO
ENGAGE IN SUCH ACTIVITIES. THE FACTUAL SITUATION IS DISTINGUISHABLE FROM
THAT PRESENTED HEREIN.
/13/ WHILE IT IS TRUE, AS RESPONDENT ARGUES, NO OTHER SITUATIONS ARE
SHOWN WHICH WOULD ESTABLISH A GENERAL CHANGE IN REGARD TO FUNDING, IT
DOES APPEAR THAT THE COMMITTEE DEPARTED FROM ITS CUSTOMARY ALLOWANCES.
/14/ SEE FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON AND
CHARLESTON NAVAL SHIPYARD, CHARLESTON, S.C. FLRC NO. 72A-46 INVOLVING
THE SELECTION OF PERSONNEL FOR TRAINING AS PROPOSED BY THE UNION. THE
COUNCIL CONCLUDED SUCH PROPOSALS COULD WELL FALL WITHIN THE OBLIGATION
TO BARGAIN UNDER SECTION 11(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
/15/ RECORD FACTS DO NOT SUPPORT THE FINDING THAT THE INFORMATION
SOUGHT HEREIN WAS INTENDED SOLELY FOR MANAGEMENT PERSONNEL OR THAT IT
WAS CONCERNED WITH DATA IN REGARD TO PARTICULAR INDIVIDUALS WHICH MIGHT
BE PRIVILEGED UNDER THE PRIVACY ACT.
/16/ RESPONDENT CITES VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KY
ET. AL. 3 FLRA 126 IN SUPPORT OF ITS POSITION THAT, WHERE THE RECORD IS
BARREN OF PROOF OF RELEVANCE AND NECESSITY, NO VIOLATIONS MAY BE FOUND.
APART FROM THE FACT THAT THE RECORD EVIDENCE MAY RAISE SUCH A
PRESUMPTION, THE CITED CASE WAS DISMISSED BECAUSE THE REQUESTED DOCUMENT
DID NOT EXIST.
/17/ THE EVIDENCE IN THE RECORD WOULD SUPPORT A FINDING THAT THE
RESPONDENT CONSULTED THE UNION HEREIN BEFOREHAND. ITS ACTION IN THIS
REGARD, AS ILLUSTRATED BY SALISBURY'S COMMENT THAT HE WAS "THE BOSS",
BELIES ANY CONTENTION THAT THE UNION AGREED TO THE ASSIGNMENT OR THAT IT
WAS A BILATERAL ACTION.
/18/ CF. OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SSA, SAN
FRANCISCO REGION, 5 FLRA NO. 45 WHERE THE WORKLOAD OF EMPLOYEES ASSIGNED
A TASK WAS NOT INCREASED, AND THEY WERE PERFORMING ESSENTIALLY THE SAME
DUTIES AS BEFOREHAND. NO DISTINCT "BURDEN" OR EFFECT WAS SHOWN TO EXIST.
/19/ SEE ALSO FEDERAL AVIATION ADMINISTRATION, A/SLMR NO. 418 WHICH
HELD THAT THE DUTY TO BARGAIN EMBRACES THE PROCEDURES OBSERVED IN
DECIDING WHO WOULD BE REASSIGNED, AS WELL AS THE CRITERIA TO BE FOLLOWED
IN SELECTING MEN FOR TRANSFER.
/20/ IN PARAGRAPH 13(E) OF THE COMPLAINT IT IS ALLEGED THAT
RESPONDENT, ON NOVEMBER 13, 1980, BYPASSED THE UNION AND DEALT DIRECTLY
WITH EMPLOYEES BY SOLICITING VOLUNTEERS FOR REASSIGNMENT. WHILE
MANAGEMENT MET WITH TWO SOCIAL WORKERS TO DISCUSS PREPARING DISCHARGE
SUMMARIES, WHICH HAS BEEN TREATED SUPRA, THE RECORD DOES NOT SUPPORT THE
ALLEGATION SET FORTH IN 13(E). ACCORDINGLY, I FIND NO VIOLATION IN
RESPECT TO BYPASSING THE UNION AS ALLEGED THEREIN.
/21/ WHILE REFERENCE WAS MADE BY NATHER TO AN ADVERSE EFFECT UPON THE
REMAINING NURSES AS A RESULT OF THANKSGIVING AND OFF-SHIFTS, IT IS NOT
CLEAR TO WHAT EXTENT THE OTHER NURSES WERE REQUIRED TO WORK EXTRA HOURS
TO ACCOMMODATE LEICHT'S REASSIGNMENT.
JOHN C. DINOTO, ESQ.
MELISSA BALTZ, ESQ.
FOR THE RESPONDENT
GERARD M. GREENE, ESQ.
FOR THE GENERAL COUNSEL
KEITH LIVERMORE
FOR THE CHARGING PARTY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT ESTABLISH CRITERIA AND INSTITUTE PRIORITY PROCEDURES FOR
FUNDING THE EDUCATION AND TRAINING OF OUR STAFF EMPLOYEES, AND PROVIDE
FOR A TRAVEL AND EDUCATION COMMITTEE OR ANY OTHER BODY, WITHOUT FIRST
NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306,
AFL-CIO, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT
CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE SUCH
ACTIONS.
WE WILL NOT REFUSE OR FAIL TO FURNISH UPON REQUEST BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, A COPY OF A "PRIORITIZATION
OF TRAINING" MEMORANDUM WHICH IS NECESSARY TO ENABLE THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, TO FULFILL ITS DUTIES AS THE BARGAINING
REPRESENTATIVE OF THE EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
WE WILL NOT ASSIGN TO SOCIAL WORKERS THE DUTY OF WRITING OR PREPARING
DISCHARGE SUMMARIES WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO, THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO BARGAIN, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF SUCH ASSIGNMENT.
WE WILL NOT RECALL OR WITHDRAW A TELEPAGER ISSUED TO THE PRESIDENT OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO,
WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3306, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT
CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO MAKE SUCH RECALL
OR WITHDRAWAL.
WE WILL NOT RELOCATE OR REASSIGN STAFF NURSES AT THE MEDICAL CENTER
WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3306, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF
SUCH RELOCATION OR REASSIGNMENT.
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 RESCIND AND WITHDRAW STATION MEMORANDUM 80-48, ISSUED ON
SEPTEMBER 30, 1980, AND ITS PROVISIONS, WHICH ESTABLISHED CRITERIA AND
PRIORITY PROCEDURES FOR FUNDING THE EDUCATION AND TRAINING OF OUR STAFF
EMPLOYEES, AND PROVIDE FOR A TRAVEL AND EDUCATION COMMITTEE TO MAKE
RECOMMENDATIONS CONCERNING REQUESTS BY THE STAFF EMPLOYEES FOR
EDUCATIONAL ACTIVITIES.
WE WILL RESTORE THE PROCEDURES, WHICH EXISTED PRIOR TO ISSUING
STATION MEMORANDUM 80-48 CONCERNING THE EDUCATION AND TRAINING OF STAFF
EMPLOYEES, INCLUDING THE EXISTENCE AND RECOGNITION OF THE HOSPITAL
EDUCATION COMMITTEE AND THE SUBCOMMITTEE FOR PROFESSIONAL EDUCATION, AS
SET FORTH IN STATION MEMORANDUM NO. 79-127 DATED OCTOBER 30, 1979.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, OF ANY INTENDED DECISION TO CHANGE THE CRITERIA AND
PRIORITY PROCEDURES FOR FUNDING THE EDUCATION AND TRAINING OF STAFF
EMPLOYEES, AND THE ESTABLISHMENT OF ANY NEW COMMITTEE TO MAKE
RECOMMENDATIONS CONCERNING REQUESTS BY THE STAFF EMPLOYEES FOR
EDUCATIONAL ACTIVITIES, AND, UPON REQUEST, BARGAIN TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE SUCH
CHANGE.
WE WILL, UPON REQUEST, FURNISH TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO, A COPY OF THE "PRIORITIZATION
OF TRAINING" MEMORANDUM WHICH IS NECESSARY TO ENABLE THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO TO FULFILL ITS
DUTIES AS THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED UNIT.
WE WILL RESCIND AND WITHDRAW THE ASSIGNMENT TO THE SOCIAL WORKERS THE
DUTY OF WRITING OR PREPARING DISCHARGE SUMMARIES.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, OF ANY INTENDED DECISION TO ASSIGN THE SOCIAL WORKERS THE
DUTY OF WRITING OR PREPARING DISCHARGE SUMMARIES, AND, UPON REQUEST,
BARGAIN TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE IMPACT
AND IMPLEMENTATION OF SUCH ASSIGNMENT.
WE WILL RESTORE AND REISSUE TO THE PRESIDENT OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3306, AFL-CIO THE TELEPAGER
PREVIOUSLY ISSUED FOR USE BY HIM WHILE CONDUCTING OFFICIAL UNION
BUSINESS AT THE MEDICAL CENTER.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
33, AFL-CIO, OF ANY FUTURE DECISION TO RECALL OR WITHDRAW THE TELEPAGER
FROM THE PRESIDENT OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3306, AFL-CIO, AND, UPON REQUEST, BARGAIN WITH THE REPRESENTATIVE,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE DECISION TO
EFFECTUATE SUCH RECALL OR WITHDRAWAL.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3306, AFL-CIO, OF ANY FUTURE DECISION TO REASSIGN STAFF NURSES FROM ONE
DIVISION OR LOCATION TO ANOTHER AT THE MEDICAL CENTER, AND UPON REQUEST,
BARGAIN WITH SUCH REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, OR THE IMPACT AND IMPLEMENTATION OF SUCH REASSIGNMENT.
. . . (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 1,
WHOSE ADDRESS IS: 441 STUART STREET, 9TH FLOOR, BOSTON, MA 02116, AND
WHOSE TELEPHONE NUMBER IS: (617) 223-0920. 770801 0000480
1-CA-743 1-CA-675 DECEMBER 9,
17 FLRA-ALJ; CASE NOS. 1-CA-512 1-CA-604 1-CA-610 1-CA-621 1-CA-622
16 FLRA-ALJ; CASE NO. 9-CA-20072 AUGUST 2, 1982
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, RESPONDENT AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, CHARGING PARTY
BEFORE: FRANCIS E. DOWD, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, HEREIN REFERRED TO AS THE STATUTE, 92 STAT., 1191, 5
U.S.C. 7101, ET SEQ. IT WAS INSTITUTED BY THE ACTING REGIONAL DIRECTOR
OF THE NINTH REGION OF THE FEDERAL LABOR RELATIONS AUTHORITY BY THE
ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING DATED JANUARY 26, 1982.
THE COMPLAINT WAS ISSUED FOLLOWING AN INVESTIGATION OF AN UNFAIR LABOR
PRACTICE CHARGE FILED ON NOVEMBER 19, 1981 BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3172, AFL-CIO, HEREIN REFERRED TO AS THE
UNION, CHARGING PARTY OR AFGE. THE COMPLAINT ALLEGES THAT DEPARTMENT OF
HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, BALTIMORE,
MARYLAND, HEREIN REFERRED TO AS RESPONDENT OR SSA, VIOLATED SECTION
7116(A)(1) BY INTERROGATION OF AN EMPLOYEE CONCERNING HER UNION
MEMBERSHIP AND ACTIVITIES. RESPONDENT FILED AN ANSWER RESPONDENT FILED
AND ANSWER DENYING ANY VIOLATION OF THE STATUTE. THE ONLY ISSUE TO BE
RESOLVED IS WHETHER THE INTERROGATION OCCURRED, AS ALLEGED IN THE
COMPLAINT. RESOLUTION OF THIS ISSUE HINGES UPON MAKING A CREDIBILITY
RESOLUTION BETWEEN THE ONLY TWO WITNESSES AT THE HEARING.
A HEARING WAS HELD IN SAN FRANCISCO, CALIFORNIA, AT WHICH TIME THE
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO
ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE
ORALLY. BRIEFS FILED BY THE GENERAL COUNSEL AND RESPONDENT HAVE BEEN
DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING MY
EVALUATION OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, AND
FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN, THE UNION HAS BEEN, AND IS, A LABOR
ORGANIZATION WITHIN THE MEANING OF 5 U.S.C. 7103(A)(4) OF THE STATUTE.
2. AT ALL TIMES MATERIAL HEREIN, RESPONDENT HAS BEEN, AND IS, AN
AGENCY WITHIN THE MEANING OF SECTION 7103(A)(3) OF THE STATUTE.
3. ON AUGUST 30, 1979, AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF A NATIONAL CONSOLIDATED UNIT CONSISTING OF, AMONG
OTHER UNITS, THE FOLLOWING UNIT:
ALL GENERAL SCHEDULE (GS) EMPLOYEES IN REGION IX (SAN FRANCISCO
REGION), BUREAU OF DISTRICT
OFFICE OPERATIONS, SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS, PROFESSIONALS,
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, NYC,
WIN, WORK-STUDY
EMPLOYEES AND EMPLOYEES EMPLOYED IN THE DISTRICT OFFICE AT REDDING.
CHERYL ALBON IS A BARGAINING UNIT EMPLOYEE AT THE SUTTER STREET
OFFICE IN DOWNTOWN SAN FRANCISCO. SHE IS A CLAIMS TECHNICIAN AND HAS
BEEN EMPLOYED BY SSA SINCE 1976.
4. AT ALL TIMES MATERIAL HEREIN, KEVIN MURPHY, OCCUPIED THE POSITION
OF BRANCH MANAGER, DALY CITY BRANCH OFFICE OF RESPONDENT. HE HAS BEEN
AND IS A SUPERVISOR OR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION
7103(A)(10) AND/OR (11) OF THE STATUTE, RESPECTIVELY, AND IS AN AGENT OF
RESPONDENT.
5. ON NOVEMBER 5, 1981, ALBON WENT TO RESPONDENT'S DALY CITY BRANCH
OFFICE FOR A PREVIOUSLY SCHEDULED JOB TRANSFER INTERVIEW. SHE WAS FIRST
INTERVIEWED BY PEGGY STRAMAN, A SUPERVISOR. SHE WAS THEN INTERVIEWED BY
KEVIN MURPHY, FOR ABOUT ONE-HALF HOUR. MURPHY HAD AGREED TO INTERVIEW
HER AFTER BEING TOLD BY DISTRICT MANAGER AL FOSS THAT ALBON WAS
INTERESTED IN A TRANSFER. ACCORDING TO MURPHY, HE HAD NO VACANCY AT THAT
TIME FOR A DATA REVIEW TECHNICIAN BUT HE FELT IT WAS A GOOD IDEA, BY WAY
OF ADVANCE PLANNING, TO GET TO KNOW HER AS A POSSIBLE TRANSFER IN THE
FUTURE.
DURING THE INTERVIEW, MURPHY QUESTIONED ALBON ABOUT HER REASONS FOR
MAKING A TRANSFER AND WAS TOLD THAT HER COMMUTING TIME TO WORK WOULD BE
SUBSTANTIALLY DECREASED, CHILD CARE WOULD BE EASIER TO ARRANGE, AND
TRANSPORTATION WOULD BE MORE CONVENIENT SINCE HER HUSBAND WORKED AT THE
POST OFFICE. HE DID NOT ASK HER IF SHE WAS MARRIED. HE ASKED HER WHETHER
SHE HAD BEEN SUPERVISED BY INDIVIDUALS WHOM HE KNEW PERSONALLY AS A
RESULT OF HIS PREVIOUS ASSIGNMENT TO THE SUTTER STREET OFFICE. IT WAS IN
CONNECTION WITH THIS LATTER INQUIRY THAT ALBON VOLUNTEERED THAT SHE HAD
ALWAYS GOT ALONG WELL WITH MANAGEMENT AND HAD NEVER FILED A GRIEVANCE.
/1/ MURPHY WAS SOMEWHAT TAKEN ABACK BY THIS STATEMENT BECAUSE IT
APPEARED AS IF ALBON THOUGHT THIS INFORMATION WOULD IMPRESS HIM AND HELP
HER TO OBTAIN A TRANSFER. IN FACT, HE FELT THAT HER REMARK WAS A BIT
PECULIAR AND SOMEWHAT DISRUPTIVE TO THE CONVERSATIONAL FLOW HE HAD
ESTABLISHED. NEVERTHELESS, HE PROCEEDED TO INQUIRE INTO OTHER AREAS.
ALTHOUGH MURPHY COULD HAVE OBTAINED THROUGH ADMINISTRATIVE CHANNELS
ALBON'S LEAVE RECORDS AND PERFORMANCE EVALUATIONS, HE DISCUSSED THESE
VERY IMPORTANT SUBJECTS ALSO. IN THIS WAY, ALBON HAD AN OPPORTUNITY TO
EXPLAIN HER LOW SICK LEAVE BALANCE WHICH SHE SAID WAS ABOUT 10 HOURS.
AFTER THE INTERVIEW, MURPHY OBTAINED HER RECORDS AND CHECKED WITH HER
SUPERVISORS ABOUT HER PERFORMANCE AND PERSONAL RELATIONSHIPS WITH OTHER
EMPLOYEES. WHEN DISCUSSING LEAVE, ALBON DEMONSTRATED WHAT MURPHY TERMED
AS A LACK OF FLEXIBILITY, BY STATING THAT SHE HAD 30 HOURS OF ANNUAL
LEAVE WHICH SHE PLANNED TO TAKE ON SPECIFIED DATES. APPARENTLY, ALBON'S
REMARK WAS MADE IN AN ADAMANT, BELLIGERENT MANNER INDICATING NO ROOM FOR
COMPROMISE. COMING FROM AN EMPLOYEE SEEKING A TRANSFER, ALBON'S REMARK
MADE A POOR IMPRESSION ON MURPHY.
IN HIS TESTIMONY, WHICH I CREDIT, MURPHY DENIED ASKING ALBON ABOUT
THE UNION, HER MEMBERSHIP THEREIN, HER ACTIVITIES ON BEHALF OF THE
UNION, OR WHETHER SHE HAD FILED ANY GRIEVANCES. IN DECIDING TO CREDIT
MURPHY RATHER THAN ALBON, I AM ESSENTIALLY MAKING A CREDIBILITY
RESOLUTION BASED UPON DEMEANOR, PLUS AN EVALUATION OF THE ENTIRE
TESTIMONY OF BOTH WITNESSES. MURPHY WAS OPEN AND RELAXED ON THE WITNESS
STAND AND MAKE A SIGNIFICANT EFFORT TO RESPOND PRECISELY TO THE
QUESTIONS ASKED. HE WAS COOPERATIVE AND HELPFUL IN ATTEMPTING TO FULLY
DESCRIBE THE INTERVIEW FROM BEGINNING TO END. HIS VERSION OF WHAT
HAPPENED IS MORE BELIEVABLE THAN THAT OFFERED BY ALBON, WHO APPEARED TO
BE SPEAKING BY ROTE. IN DECIDING NOT TO CREDIT ALBON, I AM NOT RELYING
UPON ANY ALLEGED INCONSISTENCIES BETWEEN WHAT SHE TOLD MURPHY DURING HER
INTERVIEW AND WHAT INFORMATION HE OBTAINED THEREAFTER BY A REVIEW OF HER
RECORDS.
CONCLUSIONS OF LAW
THE CREDITED TESTIMONY REVEALS NO EVIDENCE OF UNLAWFUL INTERROGATION
WITHIN THE MEANING OF SECTION 7116(A)(1). ACCORDINGLY, THE GENERAL
COUNSEL HAS NOT SUSTAINED HIS BURDEN OF PROOF AND I RECOMMEND THAT THE
AUTHORITY ISSUE THE FOLLOWING:
ORDER
THAT THE COMPLAINT IN CASE NO. 9-CA-20072 BE, AND HEREBY IS
DISMISSED.
/1/ I CREDIT MURPHY'S TESTIMONY THAT HE DID NOT ASK ALBON TO EXPLAIN
WHY SHE HAD NOT FILED ANY GRIEVANCES.
ANN SEGARS
FOR THE RESPONDENT
VINCE MORGANTE
FOR THE CHARGING PARTY
PATRICIA JEANNE HOWZE, ESQ.
FOR THE GENERAL COUNSEL 770801 0000470
16 FLRA-ALJ; CASE NO. 2-CA-20001 AUGUST 20, 1982
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER,
LEBANON, PENNSYLVANIA, RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1966, AFL-CIO, CHARGING PARTY
BEFORE: LOUIS SCALZO, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. 7101, ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
AND RULES AND REGULATIONS ISSUED THEREUNDER.
THE COMPLAINT ALLEGES THAT ON OR ABOUT MAY 15, 1981, THE VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER (VAMC), LEBANON,
PENNSYLVANIA (RESPONDENT), /1/ THROUGH DR. MURRAY FELDBERG, CHIEF OF
STAFF AT THE VAMC, COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE MEANING
OF SECTION 7116(A)(1) OF THE STATUTE BY TELLING A BARGAINING UNIT
EMPLOYEE THAT ANOTHER BARGAINING UNIT EMPLOYEE, ONE DR. ANDREW LEFKO,
WOULD NOT BE PROMOTED BECAUSE HE HAD ENGAGED IN PROTECTED ACTIVITIES ON
BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1966,
AFL-CIO (CHARGING PARTY OR UNION). THE COMPLAINT ALSO ALLEGES THAT ON OR
ABOUT JUNE 5, AND AUGUST 28, 1981, THE RESPONDENT, THROUGH DR. FELDBERG
VIOLATED SECTIONS 7116(A)(1) AND (2) OF THE STATUTE BY EXECUTING
PERFORMANCE APPRAISALS WHICH DID NOT RECOMMEND DR. LEFKO FOR PROMOTION
BECAUSE OF HIS MEMBERSHIP IN, AND ACTIVITIES ON BEHALF OF, THE UNION
HEREIN.
COUNSEL REPRESENTING THE RESPONDENT ARGUES THAT EVIDENCE INTRODUCED
AT THE HEARING DID NOT PROVE THE ALLEGATIONS OF THE COMPLAINT; AND
FURTHER, THAT COMMENTS MADE BY DR. FELDBERG ON PERFORMANCE APPRAISALS
WERE MOTIVATED BY LAWFUL REASONS ASSOCIATED WITH HIS PERFORMANCE OF
DUTIES AS CHIEF OF STAFF AT THE VAMC.
THE PARTIES WERE REPRESENTED BY COUNSEL DURING THE HEARING AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
EXAMINE AND CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS WERE RECEIVED
FROM COUNSEL OF RECORD. BASED UPON THE ENTIRE RECORD HEREIN, INCLUDING
MY OBSERVATIONS OF THE WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, AND
OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, /2/ AND THE BRIEFS
FILED, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATIONS.
CIRCUMSTANCES RELATING TO DR. ANDREW LEFKO'S ROLE AS A UNION
REPRESENTATIVE
THE VAMC EMPLOYS APPROXIMATELY 40 PHYSICIANS, MOST OF WHOM ARE
MEMBERS OF THE BARGAINING UNIT REPRESENTED EXCLUSIVELY BY THE UNION.
PHYSICIANS ARE ASSIGNED TO DEPARTMENTS OF PSYCHIATRY, MEDICINE AND
SURGERY, AND THESE DEPARTMENTS ARE UNDER THE ADMINISTRATIVE CONTROL OF
DR. FELDBERG. AS CHIEF OF STAFF, DR. FELDBERG, IN TURN, SERVED UNDER THE
DIRECTOR OF THE VAMC. DR. LEFKO WAS A STAFF MEMBER ASSIGNED TO THE
DEPARTMENT OF PSYCHIATRY, AND WAS UNDER THE DIRECT SUPERVISION OF DR.
ROBERT ALLEN, CHIEF OF THE DEPARTMENT OF PSYCHIATRY. A TOTAL OF 11
PHYSICIANS WERE ASSIGNED TO THE DEPARTMENT OF PSYCHIATRY, SIX OF WHOM,
INCLUDING DR. LEFKO, WERE PSYCHIATRISTS.
DURING ALL TIMES MATERIAL HEREIN DR. LEFKO WAS CHIEF STEWARD FOR THE
DEPARTMENT OF PSYCHIATRY, AND HANDLED ALL LABOR RELATIONS PROBLEMS
FALLING WITHIN THE PURVIEW OF HIS DEPARTMENT. HE ALSO SERVED AS STEWARD
FOR ALL PHYSICIANS IN THE BARGAINING UNIT REPRESENTED BY THE UNION. HE
WAS THROWN INTO CLOSE CONTACT WITH VAMC MANAGEMENT, PARTICULARLY DR.
FELDBERG, MANAGEMENT'S CHIEF SPOKESMAN. AS THE CHIEF SPOKESMAN FOR
BARGAINING UNIT MEMBERS IN THE DEPARTMENT OF PSYCHIATRY, DR. LEFKO WAS A
PARTICULARLY ACTIVE PARTICIPANT AT LABOR-MANAGEMENT MEETINGS AT THE
VAMC. IN THE LATTER CAPACITY HE HANDLED MOST OF THE PRESENTATIONS ON
BEHALF OF THE UNION. /3/
PRIOR TO DR. FELDBERG'S EVALUATION OF DR. LEFKO, DR. FELDBERG AND DR.
LEFKO HAD DISAGREEMENTS OVER A NUMBER OF ISSUES RAISED AT
LABOR-MANAGEMENT MEETINGS. THESE INCLUDED DISPUTES INVOLVING THE
ADEQUACY OF TRAINING PROVIDED PSYCHIATRISTS ASSIGNED TO PERFORM DUTIES
AS MEDICAL OFFICER OF THE DAY; THE ACCURACY OF MANAGEMENT IN PREPARING
THE MINUTES OF LABOR-MANAGEMENT MEETINGS; THE AMOUNT OF FEES PAID TO
OUTSIDE PHYSICIANS FOR DUTIES PERFORMED WHILE EMPLOYED AS MEDICAL
OFFICER OF THE DAY; PROCEDURES FOR THE DISTRIBUTION OF CERTAIN
EDUCATION FUNDS; MANAGEMENT'S POLICY IN GRANTING TIME OFF TO
PHYSICIANS; THE ALLEGED ISSUANCE OF VAMC POLICY AFFECTING BARGAINING
UNIT MEMBERS WITHOUT FIRST CONSULTING WITH THE UNION; ALLEGED FAILURE
OF MANAGEMENT TO RESPOND TO ISSUES; ALLEGED INTERFERENCE BY DR.
FELDBERG WITH THE WORK OF PHYSICIANS; A CLAIMED LACK OF PHYSICIAN
REPRESENTATION ON HOSPITAL COMMITTEES; AND CRITICISM OF DR. FELDBERG'S
RELATIONSHIP WITH THE PROFESSIONAL STAFF, AND HANDLING OF PROFESSIONAL
STAFF MEETINGS. DISPUTES BETWEEN DR. FELDBERG AND DR. LEFKO WERE
"HEATED" IN NATURE, AND AT TIMES ENDED WITH DR. LEFKO THREATENING TO GO
OVER DR. FELDBERG'S HEAD OR OUTSIDE OF THE VAMC TO RESOLVE ISSUES.
IT WAS ALSO DISCLOSED THAT A GRIEVANCE FILED BY DR. LEFKO AGAINST
VAMC MANAGEMENT WAS DECIDED BY AN ARBITRATOR IN FAVOR OF THE UNION IN
JUNE OF 1981. DR. LEFKO WAS A KEY WITNESS DURING A HEARING INVOLVING THE
MATTER IN MARCH OF 1981.
DR. FELDBERG DISCUSSES DR. LEFKO'S UNION ACTIVITIES WITH DR. NEMZOFF
DR. SOL LEON NEMZOFF, A PSYCHIATRIST, COMMENCED EMPLOYMENT AT THE
VAMC ON JANUARY 11, 1981. HE WAS A MEMBER OF THE BARGAINING UNIT AND WAS
ASSIGNED TO THE DEPARTMENT OF PSYCHIATRY. DR. NEMZOFF DEVELOPED A
FRIENDSHIP WITH DR. FELDBERG AND DR. LEFKO SHORTLY AFTER HIS ARRIVAL.
DR. NEMZOFF AND DR. FELDBERG RESIDED IN THE SAME QUARTERS AT THE VAMC
DURING MONDAY THROUGH THURSDAY COMMENCING IN JANUARY OF 1981, AND THEY
PARTICIPATED IN NUMEROUS CONVERSATIONS AND SOCIAL ACTIVITIES TOGETHER.
DR. LEFKO WAS DISCUSSED BY DR. FELDBERG MANY TIMES DURING A PERIOD
COMMENCING IN JANUARY OF 1981 AND ENDING A FEW MONTHS THEREAFTER. DURING
MANY OF THESE CONVERSATIONS DR. FELDBERG INDICATED THAT HE WAS ANGRY
WITH DR. LEFKO BECAUSE OF DIFFICULTY CREATED BY DR. LEFKO'S STANCE ON
LABOR-MANAGEMENT RELATIONS ISSUES. DR. FELDBERG INDICATED THAT DR. LEFKO
WAS GOING ABOUT THINGS THE WRONG WAY; THAT HE WAS TOO OUTSPOKEN AT
MEETINGS; THAT HE HAD BETTER "WATCH OUT"; THAT HIS POSITION ON LABOR
RELATIONS ISSUES WAS ANTAGONIZING DR. FELDBERG, AND THE VAMC DIRECTOR;
THAT PROBLEMS WERE BEING GENERATED BY DR. LEFKO'S UNION ACTIVITY, AND
HIS ROLE AS A UNION STEWARD; THAT DR. LEFKO WAS GETTING HIMSELF INTO
TROUBLE; AND THAT DR. LEFKO WOULD NOT RECEIVE A DESIRED PROMOTION TO
THE CHIEF OF THE DEPARTMENT OF PSYCHIATRY BECAUSE, "IF YOU WANT TO
BECOME CHIEF, YOU DON'T HAVE ANYTHING TO DO WITH UNIONS" (TR. 92, 99).
AT ANOTHER POINT HE STATED IN SUBSTANCE THAT, "LEFKO WILL NEVER BECOME
CHIEF" (TR. 92, 103). /4/
DR. NEMZOFF FIRST REPORTED THE SUBSTANCE OF THESE CONVERSATIONS TO
DR. LEFKO SOMETIME IN MARCH OR APRIL OF 1981. ONE OR TWO MONTHS LATER HE
ALSO HAD CONVERSATIONS WITH DR. LEFKO ABOUT DR. FELDBERG'S VIEWS
RELATING TO DR. LEFKO'S UNION ACTIVITY. ONE SUCH CONVERSATION OCCURRED
IN MAY OF 1981 (TR. 43). HE WARNED DR. LEFKO THAT HIS CAREER AND
PROMOTION PROSPECTS WERE BEING ENDANGERED BY HIS UNION ACTIVITY, AND
THAT HE SHOULD MODERATE HIS APPROACH.
THE RECORD DISCLOSED THAT DR. FELDBERG WAS CRITICAL OF DR. NEMZOFF'S
PROFESSIONAL PERFORMANCE, BUT THAT THIS PATTERN OF CRITICISM DID NOT
COMMENCE UNTIL AFTER DR. NEMZOFF FIRST REPORTED THE SUBSTANCE OF DR.
FELDBERG'S CONVERSATIONS TO DR. LEFKO.
DR. LEFKO'S MAY 1981 CAREER DEVELOPMENT INTERVIEW, AND DR.
FELDBERG'S SUBSEQUENT EXECUTION OF PROFICIENCY REPORTS CONCERNING DR.
LEFKO ON OR ABOUT JUNE 5, 1981 AND AUGUST 28, 1981
IN MAY OF 1981, DR. LEFKO PARTICIPATED IN A CAREER DEVELOPMENT
INTERVIEW WITH DR. FELDBERG AND DR. ALLEN, CHIEF OF THE DEPARTMENT OF
PSYCHIATRY. DR. LEFKO WAS ASKED WHAT HE THOUGHT WERE THE PROBLEM AREAS
FACING THE DEPARTMENT OF PSYCHIATRY; AND IN RESPONSE, DR. FELDBERG WAS
PROVIDED WITH DR. LEFKO'S VIEWS CONCERNING MANY PROBLEM AREAS IN THE
DEPARTMENT. WHEN ASKED CONCERNING HIS CAREER GOALS, DR. LEFKO REPLIED
THAT HE WAS LOOKING FORWARD TO SERVING IN A CHIEF OF SERVICE POSITION AS
HEAD OF A DEPARTMENT OF PSYCHIATRY IN THE VETERANS ADMINISTRATION. THIS
CAREER GOAL WAS NOT SUBSEQUENTLY MODIFIED OR WITHDRAWN BY DR. LEFKO.
/5/
ON JUNE 2, 1981, DR. ALLEN EVALUATED DR. LEFKO'S PERFORMANCE FOR THE
PERIOD JUNE 9, 1980 TO JUNE 9, 1981. /6/ HE RATED HIM AT THE HIGHEST
LEVEL ("EXCELLENT"), IN CLINICAL COMPETENCE, AND AT THE SECOND HIGHEST
LEVEL ("HIGH SATISFACTORY") IN EDUCATIONAL COMPETENCE, ADMINISTRATIVE
COMPETENCE, PERSONAL QUALITIES, AND OVERALL EVALUATION. DR. ALLEN'S
EVALUATION NOTED A NUMBER OF FAVORABLE COMMENTS, INCLUDING A REFERENCE
TO ORIGINAL THINKING, SKILL IN SUPERVISING OTHERS, HIS "MANY SUGGESTIONS
FOR THE BETTERMENT OF THE SERVICE," AND HIS ENTHUSIASM IN SERVING ON THE
STAFF.
DR. FELDBERG COMPLETED HIS REVIEW OF THE JUNE 2, 1981 PROFICIENCY
REPORT ON JUNE 5, 1981. /7/ HE NOTED THAT HE DIDN'T AGREE "ENTIRELY"
WITH DR. ALLEN'S ASSESSMENT. HE THEN STATED IN PART:
DR. LEFKO IS SEEN AS THE UNOFFICIAL LEADER OF THE PSYCHIATRY SERVICE.
HE IS ARTICULATE AT
TIMES, CONFIDENT, AND HE HAS AN AURA OF TECHNICAL COMPETENCE. THAT HE
IS LOOKED TO BY HIS
COLLEAGUES FOR LEADERSHIP IS QUITE JUSTIFIED. HE IS TURNED TO BY
PSYCHIATRY SERVICE STAFF AND
THE SERVICE CHIEF FOR GUIDANCE.
AT ONE TIME OR ANOTHER, HE HAS BEEN THOUGH OF AS A POTENTIAL SERVICE
CHIEF. AT ONE TIME OR
ANOTHER THE ENCUMBENT OF THE CHIEF OF STAFF'S OFFICE HAS VIEWED DR.
LEFKO AS A MEANS OF
INTRODUCING SOME ACTIVITY IN AN OTHERWISE TACITURN SERVICE.
I HAVE BEEN MOST DISAPPOINTED, HOWEVER, THAT THE ORIGINALLY PERCEIVED
PROMISE OF ENLISTING
DR. LEFKO'S ASSISTANCE IN DEALING WITH THE MANY DEFECTS IN PSYCHIATRY
SERVICE HAS NOT BEEN
BORNE OUT. PERHAPS, A LARGER EFFORT HAS BEEN MADE THAN I AM AWARE OF,
BUT MUCH MORE HAD BEEN
EXPECTED FROM THIS PERCEPTIVE PROFESSIONAL. IN CONSEQUENCE OF THIS
EXPERIENCE, I HAD OCCASION
TO CHAT WITH MY PREDECESSOR WHO, I LEARNED, HAD AT ONE TIME ACTUALLY
GONE ON RECORD AS
DESIRING THE APPOINTMENT OF DR. LEFKO AS ASSISTANT CHIEF OF SERVICE
AND TO DISCOVER THAT HE
LATER WITHDREW HIS RECOMMENDATION.
. . . .
DR. LEFKO DOES NOT TEND TO FOLLOW THROUGH ON HIS OBSERVATIONS BUT
PERMITS HIMSELF TO SLIP
INTO AN ATTITUDE OF HOPELESSNESS AND INERTIA WHICH, HE FEELS, IS
JUSTIFIED BECAUSE OF THE
WORKING SITUATION HERE. THIS IS NOT A RATIONALIZATION THAT I CAN
AGREE WITH (G.C. EXH. 14).
DR. ALLEN TOTALLY DISAGREED WITH DR. FELDBERG'S COMMENTS (TR. 83).
HE TESTIFIED THAT THE QUOTED LANGUAGE WAS "RIDDLED WITH INACCURACIES,"
AND WAS UNFAIR (TR. 80). HE STATED THAT HE NEVER MADE STATEMENTS TO DR.
FELDBERG WHICH WOULD JUSTIFY DR. FELDBERG'S EVALUATION (TR. 79-81);
THAT DR. FELDBERG HAD "VERY LITTLE" OPPORTUNITY TO OBSERVE DR. LEFKO'S
WORK (TR. 80-81, 83). /8/ AND THAT COMPLIMENTARY COMMENTS REFLECTED IN
THE FIRST TWO PARAGRAPHS OF DR. FELDBERG'S EVALUATION WERE CLEARLY
INCONSISTENT WITH COMMENTS REFLECTED IN THE LAST TWO PARAGRAPHS (TR.
80-82).
DR. FELDBERG'S TESTIMONY CONCERNING THE JUNE 5, 1981 COMMENTS
RECORDED ON THE PROFICIENCY REPORT WAS VAGUE, CONTRADICTORY AND
INCONSISTENT IN CONTENT. HE ADMITTED THAT THE COMMENTS WERE NEGATIVE IN
TERMS OF ACCORDING DR. LEFKO CONSIDERATION AS A POSSIBLE CANDIDATE FOR
CHIEF OF SERVICE (TR. 109-110); AND THAT ON THE DATE OF HIS COMMENTS
(JUNE 5, 1981), HE WOULD NOT HAVE RECOMMENDED DR. LEFKO AS A CANDIDATE
FOR CHIEF OF SERVICE (TR. 146). HOWEVER, HE ALSO TOOK THE POSITION THAT
HIS COMMENTS DID NOT CONSTITUTE A "NEGATIVE" APPRAISAL (TR. 139).
WITH RESPECT TO HIS OPPORTUNITY TO OBSERVE DR. LEFKO, HE ADMITTED
THAT HE HAD NEVER ACTUALLY SUPERVISED DR. LEFKO (TR. 136), AND THAT HE
DID NOT DISCUSS THE MATTER WITH DR. ALLEN EITHER BEFORE OR AFTER HIS
EVALUATION (TR. 126-127). WITH RESPECT TO DR. LEFKO'S DESIRE TO OBTAIN A
PROMOTION, DR. FELDBERG STATED UNEQUIVOCALLY THAT HE DID NOT CONSIDER
HIM TO BE AVAILABLE FOR PROMOTION BECAUSE DR. LEFKO HAD DECLINED SUCH
CONSIDERATION; YET THE TONE OF DR. FELDBERG'S COMMENTS CONVEYS THE
CLEAR IMPRESSION THAT HE CONSIDERED HIM TO BE A VIABLE CANDIDATE. /9/
AS A STAFF MEMBER DR. LEFKO HAD NO RESPONSIBILITY FOR THE OVERALL
PERFORMANCE OF THE DEPARTMENT OF PSYCHIATRY (TR. 110). NEVERTHELESS, DR.
FELDBERG'S RATING OF DR. LEFKO WAS BASED UPON THE PREMISE THAT DR.
LEFKO HAD SUCH RESPONSIBILITY (TR. 110-111, 115-116, 120-121, 125-126,
129-130). DR. FELDBERG'S CRITICISM RESTED IN PART ON A FAILURE OF DR.
LEFKO TO INTRODUCE HELPFUL IDEAS (TR. 118); YET DR. ALLEN'S EVALUATION
INDICATED THAT DR. LEFKO WAS A SOURCE OF SUCH IDEAS (G.C. EXH. 14).
ALTHOUGH PLACED ON NOTICE OF SUCH CONTRIBUTIONS BY DR. ALLEN'S
EVALUATION, DR. FELDBERG TESTIFIED THAT HE WAS NOT AWARE THAT DR. LEFKO
HAD MADE SUGGESTIONS OF A HELPFUL NATURE (TR. 118, 122, 124). /10/ AT
ANOTHER POINT, DR. FELDBERG AGREED THAT DR. LEFKO WAS PERFORMING
SATISFACTORILY AS A MEMBER OF AN ADMISSIONS UNIT IN THE PSYCHIATRY
DEPARTMENT (TR. 115,123); YET HE WAS CRITICAL OF THE ROLE PLAYED BY DR.
LEFKO IN THE ADMISSIONS UNIT (TR. 118-120, 130-133). /11/
INTERNAL INCONSISTENCY IN DR. FELDBERG'S EVALUATION IS ALSO REFLECTED
BY HIS REFERENCE TO A CONVERSATION WITH A PRIOR CHIEF OF STAFF REGARDING
CONSIDERATION OF DR. LEFKO FOR A NEWLY PROPOSED POSITION AS ASSISTANT
CHIEF OF SERVICE. THE MENTIONED COMMENT IN THE EVALUATION INDICATES THAT
DR. FELDBERG'S PREDECESSOR "WITHDREW HIS RECOMMENDATION" OF DR. LEFKO.
THE ABSENCE OF FURTHER EXPLANATION IN THE EVALUATION LEAVES A BASIS FOR
DRAWING NEGATIVE INFERENCES FROM THE STATEMENT; YET DR. FELDBERG
SUGGESTS THAT THE LANGUAGE WAS INSERTED AS A FAVORABLE COMMENT (TR.
129-130, 145-146).
ON JUNE 23, 1981, DR. LEFKO MET WITH DR. FELDBERG AND QUESTIONED THE
VALIDITY OF DR. FELDBERG'S EVALUATION; /12/ AND BY MEMORANDUM OF THE
SAME DATE DR. LEFKO APPEALED TO MR. SAMUEL ALITTO, THE CHIEF OF
PERSONNEL SERVICE AT THE VAMC (G.C. EXH. 15). DR. FELDBERG MET WITH MR.
ALITTO CONCERNING THE APPEAL AND WAS TOLD THAT DR. FELDBERG COULD NOT
EVALUATE DR. LEFKO AS A CANDIDATE FOR THE POSITION OF CHIEF OF SERVICE
BECAUSE HE WAS NOT UNDER CONSIDERATION FOR SUCH A PROMOTION (TR. 136,
167). DR. FELDBERG AGREED TO MODIFY HIS EVALUATION, AND THEY DISCUSSED
LANGUAGE TO BE USED BY DR. FELDBERG IN A REVISED VERSION OF THE
PROFICIENCY REPORT (TR. 168-170). MR. ALITTO PERSUADED DR. FELDBERG TO
OMIT MOST OF THE DEROGATORY COMMENTS IN A REVISED EVALUATION (TR.
177-178). THIS POSITION WAS COMMUNICATED TO DR. LEFKO BY MR. ALITTO IN A
MEMORANDUM DATED JULY 21, 1981 (G.C. EXH. 16).
AT A MEETING WITH MR. ALITTO FOLLOWING MR. ALITTO'S JULY 21, 1981
MEMORANDUM, DR. LEFKO EXPRESSED HIS DISAPPROVAL CONCERNING RESOLUTION OF
THE MATTER BASED UPON A REVISION OF THE EVALUATION, BUT AGREED
RELUCTANTLY TO ANY CHANGE DESIGNED TO LESSEN THE IMPACT OF THE
EVALUATION. HOWEVER, MR. ALITTO ADVISED DR. LEFKO, THAT DR. FELDBERG
WOULD INSIST UPON INSERTING A COMMENT TO THE EFFECT THAT DR. LEFKO WAS
NOT A CANDIDATE FOR PROMOTION TO A CHIEF OF SERVICE POSITION (TR. 57,
187, 189-191).
BY MEMORANDUM DATED AUGUST 4, 1981, DR. LEFKO SET FORTH HIS POSITION
IN OPPOSITION TO MR. ALITTO'S EARLIER JULY 21, 1981 MEMORANDUM, AND
AMONG OTHER THINGS NOTED THAT HIS ACTIVITIES AS UNION STEWARD INFLUENCED
DR. FELDBERG IN HIS ROLE AS AN APPROVING OFFICIAL (G.C. EXH. 17).
ON OR ABOUT AUGUST 28, 1981, DR. LEFKO RECEIVED A REVISION OF DR.
FELDBERG'S EARLIER JUNE 5, 1981 EVALUATION (G.C. EXH. 18). ALL PRIOR
COMMENTS WERE DELETED; HOWEVER, THE REVISED EVALUATION INCLUDED THE
FOLLOWING STATEMENT:
TO THE BEST OF MY KNOWLEDGE, DR. LEFKO IS PERFORMING HIS WORK AS A
WARD PHYSICIAN
(PSYCHIATRIST) ADEQUATELY. HE IS NOT AT PRESENT A CANDIDATE FOR A
CHIEF OF SERVICE POSITION.
DR. LEFKO ACKNOWLEDGED RECEIPT ON THE DOCUMENT, NOTING THAT HE DID
NOT WISH TO DISCUSS THE ISSUE FURTHER AND THAT HE WAS INTERESTED IN A
PROMOTION. BY MEMORANDUM DATED AUGUST 28, 1981, DR. LEFKO INFORMED MR.
ALITTO THAT HE PLANNED TO TAKE OTHER STEPS TO RESOLVE THE ISSUE, AND
ASKED THAT DR. FELDBERG'S JUNE 5, 1981 EVALUATIVE COMMENTS, AND THAT THE
REVISION SUPPLIED ON OR ABOUT AUGUST 28, 1981, TOGETHER WITH ALL RELATED
CORRESPONDENCE REMAIN IN HIS OFFICIAL PERSONNEL FILE AS HE INTENDED TO
SEEK LEGAL ASSISTANCE IN AN EFFORT TO RESOLVE THE MATTER (G.C. EXH. 19).
DR. ALLEN'S TESTIMONY ESTABLISHED THAT DR. FELDBERG'S REFERENCE IN
THE REVISION TO DR. LEFKO'S UNAVAILABILITY WAS FALSE BECAUSE DR. LEFKO
DID WISH TO BE CONSIDERED FOR PROMOTION (TR. 86-87). /13/ AS PREVIOUSLY
NOTED THIS FINDING IS FULLY SUPPORTED BY THE LANGUAGE USED IN DR.
FELDBERG'S JUNE 5, 1981 COMMENTS, AND DIRECTLY BY DR. LEFKO'S STATEMENTS
WHICH ARE FULLY CORROBORATED. ALSO, ON THIS POINT MR. ALITTO TESTIFIED
THAT DR. FELDBERG PREPARED THE REVISED STATEMENT HIMSELF (TR. 179-180),
AND THAT HE VIEWED DR. FELDBERG'S INSISTENCE ON THE INCLUSION OF SUCH A
STATEMENT AS MERELY "A WAY THAT DR. FELDBERG AVOIDED MAKING ANY COMMENT
AT ALL CONCERNING DR. LEFKO'S POTENTIAL FOR A SUPERVISORY POSITION" (TR.
174). THUS, IT IS CLEAR THAT DR. FELDBERG'S REVISED COMMENTS WERE MERELY
AN ATTENUATED, BUT SUBSTANTIALLY DAMAGING, VERSION OF HIS EARLIER
COMMENTS.
DISCUSSION AND CONCLUSIONS
SECTIONS 7116(A)(1) AND (2) OF THE STATUTE PROVIDE:
(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;
(2) TO OTHERWISE ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR
ORGANIZATION BY
DISCRIMINATION IN CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT
. . .
SECTION 7102 OF THE STATUTE SETS FORTH CERTAIN EMPLOYEE RIGHTS
INCLUDING THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR
TO REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND FURTHER THAT EACH EMPLOYEE SHALL BE PROTECTED IN THE
EXERCISE OF SUCH RIGHT.
IN FEDERAL MEDIATION AND CONCILIATION SERVICE, 9 FLRA NO. 31 (1982),
9 FLRA 199, THE AUTHORITY BY ADOPTING THE FOLLOWING LANGUAGE OF
ADMINISTRATIVE LAW JUDGE ALAN W. HEIFETZ PROVIDED GUIDANCE WITH RESPECT
TO THE STANDARD BY WHICH ONE MAY DETERMINE WHETHER THERE HAS BEEN
INTERFERENCE, RESTRAINT OR COERCION:
THAT STANDARD BY WHICH ONE MAY DETERMINE INTERFERENCE, RESTRAINT OR
COERCION, IS NOT THE
SUBJECTIVE PERCEPTIONS OF THE EMPLOYEE, NOT IS IT THE INTENT OF THE
EMPLOYEE. RATHER THE TEST
IS WHETHER, UNDER THE CIRCUMSTANCES OF THE CASE, THE EMPLOYER'S
CONDUCT MAY REASONABLY TEND TO
COERCE OR INTIMIDATE THE EMPLOYEE, OR, IN THE CASE OF A STATEMENT,
WHETHER THE EMPLOYEE COULD
REASONABLY HAVE DRAWN A COERCIVE INFERENCE FROM THE STATEMENT. THE
EFFECT OF THE EMPLOYER'S
STATEMENTS MUST BE JUDGED IN THE LIGHT OF CIRCUMSTANCES IN WHICH
WORDS, INNOCENT IN AND OF
THEMSELVES, MAY BE UNDERSTOOD AS THREATS. (FOOTNOTES OMITTED).
IT IS CONCLUDED THAT DR. NEMZOFF'S ACCOUNT OF NUMEROUS DISCUSSIONS
WITH DR. FELDBERG CONCERNING DR. LEFKO'S UNION ACTIVITIES MAY BE FULLY
CREDITED, AND DR. FELDBERG'S DENIALS DISCREDITED. FURTHER, IT IS
SPECIFICALLY DETERMINED THAT THE RECORD ESTABLISHES BY A PREPONDERANCE
OF THE EVIDENCE THAT APPROXIMATELY ON OR ABOUT MAY 15, 1981, DR.
FELDBERG, IN SUBSTANCE, TOLD DR. NEMZOFF, A BARGAINING UNIT EMPLOYEE,
THAT DR. LEFKO WOULD NOT BE PROMOTED BECAUSE HE HAD ENGAGED IN
ACTIVITIES ON BEHALF OF THE UNION.
THE MENTIONED STATEMENT OF DR. FELDBERG REASONABLY TENDED TO COERCE
AND INTIMIDATE DR. NEMZOFF, AND DR. NEMZOFF COULD HAVE REASONABLY DRAWN
A COERCIVE INFERENCE FROM THE STATEMENT. IN FACT, DR. FELDBERG'S
STATEMENT REFLECTS THAT HE WAS SEEKING TO UNDERMINE DR. NEMZOFF'S
CONFIDENCE IN THE UNION. THE STATEMENT WOULD NECESSARILY HAVE HAD A
CHILLING EFFECT ON HIS EXERCISE OF RIGHTS UNDER THE STATUTE.
ACCORDINGLY, IT IS CONCLUDED THAT THE RESPONDENT, THROUGH DR.
FELDBERG'S STATEMENT TO DR. NEMZOFF, COMMITTED AN UNFAIR LABOR PRACTICE
WITHIN THE MEANING OF SECTION 7116(A)(1). /14/
IN ORDER TO ESTABLISH A VIOLATION OF SECTION 7116(A)(2) THERE MUST BE
A SHOWING THAT THE ALLEGED VICTIM OF DISCRIMINATION WAS ENGAGING IN
PROTECTED ACTIVITY, THAT THE AGENCY HAD KNOWLEDGE OF SUCH ACTIVITY, AND
THAT THE AGENCY TOOK ACTION BECAUSE OF ANTI-UNION ANIMUS. UNITED STATES
DEPARTMENT OF LABOR, 1 FLRA NO. 120 (1979); VETERANS ADMINISTRATION
CENTER, LEAVENWORTH, KANSAS, 1 FLRA NO. 111 (1979); U.S. CUSTOMS
SERVICE, REGION IV, MIAMI, FLORIDA, 1 FLRA NO. 108 (1979). THE ELEMENT
OF DISCRIMINATORY MOTIVATION NEEDED TO ESTABLISH A SECTION 7116(A)(2)
VIOLATION MAY BE INFERRED FROM CIRCUMSTANTIAL EVIDENCE. U.S. CUSTOMS
SERVICE, REGION IV, MIAMI, FLORIDA, SUPRA; VETERANS ADMINISTRATION
CENTER, LEAVENWORTH, KANSAS, SUPRA.
THE AUTHORITY HAS ALSO HELD THAT IN EXAMINING DISCRIMINATION WHERE AN
EMPLOYEE ASSERTS A FACIALLY LAWFUL BUSINESS JUSTIFICATION FOR THE
ALLEGED DISCRIMINATORY ACTION, IT WOULD EXAMINE SUCH CASES THROUGH AN
ANALYSIS SIMILAR TO THAT USED BY THE UNITED STATES SUPREME COURT IN MT.
HEALTHY CITY SCHOOL DISTRICT BOARD OF EDUCATION V. DOYLE, 529 U.S. 274
(1977) (INVOLVING CONDUCT PROTECTED BY THE UNITED STATES CONSTITUTION).
THE AUTHORITY STATED THAT THE BURDEN IS ON THE GENERAL COUNSEL TO MAKE A
PRIMA FACIE SHOWING THAT THE EMPLOYEE HAD ENGAGED IN PROTECTED ACTIVITY
AND THAT THE PROHIBITED CONDUCT WAS A MOTIVATING FACTOR IN THE
ADMINISTRATIVE ACTION TAKEN BY THE AGENCY. ONCE THIS IS ESTABLISHED, THE
AGENCY MAY AVOID RESPONSIBILITY ONLY BE SHOWING BY A PREPONDERANCE OF
THE EVIDENCE THAT IT WOULD HAVE REACHED THE SAME DECISION OR TAKEN THE
SAME ACTION EVEN IN THE ABSENCE OF PROTECTED ACTIVITY, INTERNAL REVENUE
SERVICE, WASHINGTON, D.C., 6 FLRA NO. 23 (1981); VETERANS
ADMINISTRATION, MEDICAL AND REGIONAL OFFICE CENTER, WHITE RIVER
JUNCTION, VERMONT, 6 FLRA NO. 68 (1981); OFFICE OF PROGRAM OPERATIONS,
FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION,
9 FLRA NO. 11 (1982), 9 FLRA 73.
THE RECORD DISCLOSES A LACK OF ANY CREDIBLE AND PERSUASIVE REASON FOR
DR. FELDBERG'S NEGATIVE COMMENTS CONCERNING DR. LEFKO'S PERFORMANCE, AND
FURTHER, THAT REASONS GIVEN FOR MAKING SUCH COMMENTS WERE MERELY A
PRETEXT TO CAMOUFLAGE UNION ANIMUS. THE BASIS FOR THESE FINDINGS IS
REVEALED BY THE STATEMENTS MADE BY DR. FELDBERG TO DR. NEMZOFF, AS THEY
INDICATE AN INTENT TO DEPRIVE DR. LEFKO OF FUTURE CONSIDERATION FOR
PROMOTION BECAUSE OF CONSIDERATION FOR PROMOTION BECAUSE OF DR. LEFKO'S
UNION ACTIVITIES; BY THE PATTERN OF HEATED LABOR-MANAGEMENT DISPUTES
INVOLVING DR. LEFKO AND DR. FELDBERG PRIOR TO DR. FELDBERG'S
EVALUATIONS; BY THE CONFLICT EVIDENT BETWEEN DR. FELDBERG'S CLEAR
RECOGNITION OF DR. LEFKO'S DESIRE FOR CAREER ADVANCEMENT. AND HIS
SUBSEQUENT RELIANCE UPON THE OPPOSITE CONTENTION THAT DR. LEFKO WAS NOT
INTERESTED IN PROMOTION; BY THE DOCUMENTED RECORD EVIDENCING DR.
LEFKO'S PRIOR SATISFACTORY PERFORMANCE IN PERTINENT AREAS OF INTEREST
RIGHT UP TO DR. FELDBERG'S JUNE 5, 1981 COMMENTS; BY DR. ALLEN'S TOTAL
DISAGREEMENT WITH DR. FELDBERG'S APPRAISALS OF DR. LEFKO; BY THE
APPARENT LACK OF OPPORTUNITY FOR DR. FELDBERG TO OBSERVE DR. LEFKO'S
PERFORMANCE; BY DR. FELDBERG'S EFFORT TO EVALUATE DR. LEFKO FOR LEFKO'S
PERFORMANCE; BY DR. FELDBERG'S EFFORT TO EVALUATE DR. LEFKO FOR FAILURE
TO PERFORM FUNCTIONS WHICH DID NOT RELATE TO HIS WORK AS A STAFF MEMBER
IN THE DEPARTMENT OF PSYCHIATRY; BY DR. FELDBERG'S INSISTENCE UPON THE
INCLUSION OF FALSE AND MISLEADING INFORMATION PERTAINING TO DR. LEFKO'S
CAREER GOALS IN DR. FELDBERG'S REVISED COMMENTS CONCERNING DR. LEFKO'S
PERFORMANCE; AND LASTLY BY OTHER CONTRADICTIONS AND INCONSISTENCIES IN
DR. FELDBERG'S TESTIMONY.
THE RECORD CLEARLY SHOWS BY A PREPONDERANCE OF THE EVIDENCE THAT DR.
LEFKO WAS ENGAGING IN PROTECTED UNION ACTIVITIES, THAT THE RESPONDENT,
THROUGH DR. FELDBERG, HAD KNOWLEDGE OF SUCH ACTIVITY; AND THAT DR.
FELDBERG'S COMMENTS WERE GENERATED SOLELY BY ANTI-UNION ANIMUS. /15/
EVEN ASSUMING THAT DR. LEFKO'S ENGAGING IN PROTECTED UNION ACTIVITY WAS
ONLY ONE MOTIVATING FACTOR, THE RECORD REFLECTS NO BASIS FOR A FINDING,
BY A PREPONDERANCE OF THE EVIDENCE, THAT DR. FELDBERG WOULD HAVE MADE
THE SAME PERFORMANCE APPRAISALS EVEN IN THE ABSENCE OF DR. LEFKO'S
PROTECTED UNION ACTIVITY. ACCORDINGLY, IT IS CONCLUDED THAT THE
RESPONDENT'S CONDUCT WITH RESPECT TO THE EXECUTION OF THE TWO
PERFORMANCE APPRAISALS VIOLATED SECTIONS 7116(A)(1) AND (2) OF THE
STATUTE.
HAVING FOUND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2)
OF THE STATUTE, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING
ORDER: /16/
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 VETERANS ADMINISTRATION MEDICAL CENTER,
LEBANON, PENNSYLVANIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS
ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BY
CONVEYING TO ANY
BARGAINING UNIT MEMBER OR MEMBERS, IN ANY CONVERSATION, THE
IMPRESSION THAT BARGAINING UNIT
MEMBERS WILL BE DENIED PROMOTION IF THEY PARTICIPATE IN PROTECTED
UNION ACTIVITIES AT THE
VETERANS ADMINISTRATION MEDICAL CENTER, LEBANON, PENNSYLVANIA.
(B) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY INCLUDING
NEGATIVE COMMENTS IN
PERFORMANCE APPRAISALS OF DR. ANDREW LEFKO BECAUSE OF DR. LEFKO'S
ACTIVITIES ON BEHALF OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1966, AFL-CIO.
(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:
(A) REMOVE OR EXPUNGE FROM DR. ANDREW LEFKO'S VETERANS ADMINISTRATION
PERSONNEL FILES, ALL
COPIES OF PROFICIENCY REPORTS RELATING TO THE PERIOD JUNE 9, 1980 TO
JUNE 9, 1981, WHICH
REFLECT COMMENTS MADE BY DR. MURRAY FELDBERG ON OR ABOUT JUNE 5,
1981, AND ON OR ABOUT AUGUST
28, 1981.
(B) POST AT ITS FACILITIES AT THE VETERANS ADMINISTRATION MEDICAL
CENTER, LEBANON,
PENNSYLVANIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE
DIRECTOR OF THE VETERANS ADMINISTRATION MEDICAL CENTER, LEBANON,
PENNSYLVANIA, AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS 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, REGION II 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.
/1/ THE COMPLAINT AS CAPTIONED REFERS TO THE RESPONDENT AS, THE
"VETERANS ADMINISTRATION" IN GENERAL TERMS, AND TO THE "VETERANS
ADMINISTRATION MEDICAL CENTER, LEBANON, PENNSYLVANIA" SPECIFICALLY. THE
SUGGESTED REFERENCE TO THE NATIONAL OFFICE OF THE AGENCY MAY BE
DISREGARDED AS COUNSEL REPRESENTING THE GENERAL COUNSEL AND THE UNION DO
NOT CONTEND THAT THE NATIONAL OFFICE IS IMPLICATED, AND THE RECORD
REFLECTS NO SHOWING THAT THE NATIONAL OFFICE OF THE VETERANS
ADMINISTRATION IS OTHERWISE INVOLVED (TR. 204-208).
/2/ UNDER AUTHORITY PROVIDED IN SECTION 2423.19(R) OF THE
REGULATIONS, 5 C.F.R.SECTION 2423.19(R), THE FOLLOWING CORRECTIONS ARE
MADE IN THE HEARING TRANSCRIPT:
PAGE LINE CHANGE TO
14 17 "7116 8/2" "7116(A)(2)"
135 16 "19" "18"
141 21 "AQUISATION" "ACCUSATION"
/3/ THE RESPONDENT ACKNOWLEDGED THAT "DR. LEFKO WAS AN ACTIVE, IF NOT
THE MOST ACTIVE UNION REPRESENTATIVE AT THE HOSPITAL" (TR. 209).
/4/ DR. FELDBERG ADMITTED THAT HE DID DISCUSS DR. LEFKO IN GENERAL
TERMS, BUT WAS VAGUE IN ANSWERING WHETHER HE HAD DISCUSSED WITH DR.
NEMZOFF, ANY RESERVATIONS AND COMPLAINTS THAT HE (DR. FELDBERG) HAD
CONCERNING DR. LEFKO'S PERFORMANCE (TR. 138).
/5/ DR. LEFKO'S TESTIMONY IS RELIED UPON AS A BASIS FOR THIS ACCOUNT
OF THE CAREER DEVELOPMENT INTERVIEW. HOWEVER, DR. ALLEN'S TESTIMONY
FULLY CORROBORATED THOSE PORTIONS RELATING TO DR. LEFKO'S CAREER GOALS
IN THE VETERANS ADMINISTRATION. BECAUSE OF THIS PERSUASIVE CORROBORATION
AND OTHER REASONS HEREINAFTER DESCRIBED, IT IS DETERMINED THAT THERE IS
NO BASIS WHATSOEVER FOR ACCEPTING AS TRUE, DR. FELDBERG'S TESTIMONY TO
THE EFFECT THAT DR. LEFKO TOLD DR. FELDBERG PRIOR TO JUNE 5, 1981, THAT
HE (DR. LEFKO) HAD NO INTEREST IN BECOMING A CHIEF OF SERVICE.
/6/ USING A SLIGHTLY DIFFERENT PROFICIENCY REPORT FORM FOR ANNUAL
RATING PERIODS ENDING ON JUNE 9, 1980, AND JUNE 9, 1979, DR. LEFKO WAS
EVALUATED BY DR. ALLEN, AND WAS GIVEN THE HIGHEST RATING IN SIX
CATEGORIES, AND THE NEXT TO HIGHEST IN FOUR CATEGORIES FOR OVERALL
"SATISFACTORY" RATINGS FOR EACH OF THESE TWO PRIOR RATING PERIODS. BOTH
OF THESE REPORTS REFLECT A NUMBER OF FAVORABLE COMMENTS BY DR. ALLEN.
THE REPORTS WERE APPROVED WITHOUT COMMENT BY OFFICIALS PRECEDING DR.
FELDBERG IN THE CHIEF OF STAFF POSITION.
AS A CHIEF OF SERVICE (DEPARTMENT HEAD), DR. ALLEN RATED HIS OWN
STAFF MEMBERS; AND THE CHIEF OF STAFF REVIEWED THESE RATINGS AS AN
"APPROVING OFFICIAL." THOSE IN CHIEF OF SERVICE POSITIONS WOULD IN TURN
BE EVALUATED DIRECTLY BY THE CHIEF OF STAFF. IN HIS CAPACITY AS AN
"APPROVING OFFICIAL," IN THE EVALUATION OF A STAFF MEMBER SUCH AS DR.
LEFKO, DR. FELDBERG HAD THE AUTHORITY TO ADD HIS OWN COMMENTS CONCERNING
THE EVALUATION IF SUCH EVALUATIVE COMMENTS WERE OTHERWISE APPROPRIATE.
/7/ THE RECORD DISCLOSES THAT ON JUNE 4, 1981, AND PRIOR THERETO, DR.
FELDBERG AND DR. LEFKO HAD ENGAGED IN A SERIES OF HEATED DISCUSSIONS
CONCERNING LABOR RELATIONS ISSUES (G.C. EXHS. 2-9, TR. 31-39).
/8/ THE RECORD DISCLOSED ONLY TWO OR THREE BRIEF PERSONAL WORK
CONTACTS BETWEEN DR. LEFKO AND DR. FELDBERG APART FROM NUMEROUS
ENCOUNTERS IN CONNECTION WITH LABOR RELATIONS MATTERS (TR. 54, 71-72).
/9/ AS PREVIOUSLY NOTED DR. FELDBERG'S ACCOUNT OF DR. LEFKO'S
DECLINATION WAS NOT CREDITED. THERE WOULD HAVE BEEN NO REASON FOR DR.
FELDBERG TO GO INTO SUCH DETAIL CONCERNING HIS SUITABILITY FOR THE
POSITION OF CHIEF OF SERVICE IF HE WAS NOT THEN IN FACT A POSSIBLE
CANDIDATE FOR FUTURE CONSIDERATION. MOREOVER, DR. FELDBERG'S ACCOUNT OF
DR. LEFKO'S ALLEGED REFUSAL TO BE CONSIDERED WAS CONTRADICTED BY OTHER
ELEMENTS OF THE RECORD. AN EXAMPLE OF THIS IS FOUND IN THE TESTIMONY OF
THE VAMC'S CHIEF OF PERSONNEL SERVICE, SAMUEL P. ALITTO. HE TESTIFIED
THAT DR. FELDBERG WOULD NOT HAVE EVALUATED HIM AS A POTENTIAL CANDIDATE
FOR PROMOTION IF DR. LEFKO WAS NOT ACTUALLY A PROSPECTIVE CANDIDATE FOR
THAT POSITION (TR. 176-177).
/10/ THE RECORD DISCLOSED THAT WITHIN TWO OR THREE MONTHS OF DR.
FELDBERG'S ARRIVAL TO SERVE AS CHIEF OF STAFF, DR. LEFKO ADDRESSED TO
DR. FELDBERG AT LEAST FOUR MEMORANDUMS SETTING FORTH SUGGESTIONS FOR
IMPROVING THE DEPARTMENT OF PSYCHIATRY. THESE WERE SUBMITTED TO DR.
FELDBERG THROUGH DR. ALLEN (TR. 187-188).
/11/ DR. FELDBERG ACKNOWLEDGED THAT IT WAS DR. ALLEN'S
RESPONSIBILITY, AND NOT DR. LEFKO'S TASK, TO DIRECT THE ADMISSIONS UNIT.
NEVERTHELESS, DR. LEFKO'S EVALUATION WAS BASED IN PART ON DR. LEFKO'S
FAILURE TO CORRECT PERCEIVED SHORTCOMINGS IN THE UNIT (TR. 133-134).
/12/ DR. FELDBERG'S TESTIMONY DOES NOT CONTRADICT A STATEMENT BY DR.
LEFKO TO THE EFFECT THAT DURING THE MEETING DR. FELDBERG ACKNOWLEDGED
THAT COMMENTS MADE IN THE PROFICIENCY REPORT WERE, "IMPRESSIONS WHICH I
DID NOT CHECK ON" (TR. 53).
/13/ AN EFFORT WAS MADE TO DISCREDIT THE TESTIMONY OF DR. ALLEN BY
SHOWING THAT DR. FELDBERG WAS DISSATISFIED WITH DR. ALLEN'S PERFORMANCE.
HOWEVER, THERE IS NO BASIS IN THE RECORD FOR REJECTING THE TESTIMONY OF
DR. ALLEN; AND HIS TESTIMONY IS CORROBORATED BY OTHER ELEMENTS IN THE
RECORD.
/14/ IT IS NOTED THAT THE RESPONDENT DID NOT DEFEND ON THE GROUND
THAT STATEMENTS MADE BY DR. FELDBERG WERE PROTECTED EXPRESSIONS OF
PERSONAL VIEWS OR OPINIONS WITHIN THE MEANING OF SECTION 7116(E) OF THE
STATUTE. IN ANY EVENT, THIS SECTION BY ITS TERMS, WOULD NOT BE
APPLICABLE IN CASES WHEREIN THE STATEMENTS MADE REFLECT THREATS OR
COERCIVE ELEMENTS.
/15/ INTERNAL REVENUE SERVICE, BOSTON DISTRICT OFFICE, BOSTON,
MASSACHUSETTS, AND INTERNAL REVENUE SERVICE, ANDOVER SERVICE CENTER,
ANDOVER, MASSACHUSETTS, 5 FLRA NO. 96 (1981).
/16/ AS A PART OF THE REMEDY REQUESTED COUNSEL REPRESENTING THE
CHARGING PART STATES THAT DR. FELDBERG SHOULD BE REMOVED FROM ANY
SUPERVISORY POSITION IN THE VETERANS ADMINISTRATION, AND THAT THE
CHARGING PARTY SHOULD BE AWARDED ATTORNEY FEES. NO EXPLANATION OR BASIS
FOR GRANTING EITHER OF THESE REMEDIES IS REFLECTED IN THE RECORD, AND
NEITHER IS SPECIFICALLY AUTHORIZED BY STATUTE OR REGULATION. HOWEVER, IT
IS UNNECESSARY TO DETERMINE WHETHER EITHER WOULD BE OTHERWISE
APPROPRIATE UNDER THE BROAD DISCRETION PROVIDED THE AUTHORITY UNDER
SECTION 7118(A)(7)(D) OF THE STATUTE BECAUSE IT IS CLEAR THAT THEY WOULD
NOT, WITHIN THE CONTEXT OF THIS CASE, AND THE MEANING OF 7118(A)(7)(D),
BE NECESSARY OR APPROPRIATE FOR THE PURPOSE OF EFFECTUATING THE PURPOSE
OF THE STATUTE.
JOSE H. LOPEZ, ESQUIRE
FOR THE RESPONDENT
LEE MINGLEDORFF, ESQUIRE
FOR THE GENERAL COUNSEL
MARTIN R. COHEN, ESQUIRE
FOR THE CHARGING PARTY
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 TITLE 5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY
NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE BY CONVEYING TO ANY BARGAINING UNIT MEMBER OR MEMBERS,
IN ANY CONVERSATION, THE IMPRESSION THAT BARGAINING UNIT MEMBERS WILL BE
DENIED PROMOTION IF THEY PARTICIPATE IN PROTECTED UNION ACTIVITIES AT
THE VETERANS ADMINISTRATION MEDICAL CENTER, LEBANON, PENNSYLVANIA.
WE WILL NOT DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
INCLUDING NEGATIVE COMMENTS IN PERFORMANCE APPRAISALS OF DR. ANDREW
LEFKO BECAUSE OF DR. LEFKO'S ACTIVITIES ON BEHALF OF AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1966, AFL-CIO.
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 REMOVE OR EXPUNGE FROM DR. ANDREW LEFKO'S VETERANS
ADMINISTRATION PERSONNEL FILES, ALL COPIES OF PROFICIENCY REPORTS
RELATING TO THE PERIOD JUNE 9, 1980 TO JUNE 9, 1981, WHICH REFLECT
COMMENTS MADE BY DR. MURRAY FELDBERG ON OR ABOUT JUNE 5, 1981, AND ON OR
ABOUT AUGUST 28, 1981.
. . . (AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, REGION II,
WHOSE ADDRESS IS: ROOM 24-102, 26 FEDERAL PLAZA, NEW YORK, NEW YORK
10278, AND WHOSE TELEPHONE NUMBER IS: (212) 264-4934 770801 0000460
15 FLRA-ALJ; CASE NO. 8-CA-20006 JULY 28, 1982
SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND, RESPONDENT, AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CHARGING PARTY
BEFORE: WILLIAM NAIMARK, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING ARISING UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (HEREIN CALLED THE STATUTE OR ACT).
IT IS BASED ON A CHARGE FILED ON OCTOBER 2, 1981 BY AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREIN CALLED THE UNION) AGAINST
SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND (HEREIN CALLED THE
RESPONDENT).
A COMPLAINT AND NOTICE OF HEARING, BASED ON SAID CHARGE, WAS ISSUED
ON DECEMBER 21, 1981 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR
RELATIONS AUTHORITY, LOS ANGELES, CALIFORNIA REGION. THE SAID COMPLAINT
ALLEGED, IN SUBSTANCE, THAT ON OR ABOUT SEPTEMBER 28, 1981 /1/
RESPONDENT UNILATERALLY CHANGED WORKING CONDITIONS OF UNIT EMPLOYEES AT
ITS HUNTINGTON PARK DISTRICT OFFICE BY PROHIBITING EMPLOYEES FROM HAVING
NON-ALCOHOLIC BEVERAGES AT THEIR DESKS WITHOUT NOTIFYING THE UNION OR
PROVIDING IT WITH AN OPPORTUNITY TO BARGAIN OVER THE CHANGE-- ALL IN
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
RESPONDENT'S ANSWER TO THE COMPLAINT, DATED JANUARY 4, 1982, DENIED
THE AFORESAID ALLEGATION AS WELL AS THE COMMISSION OF ANY UNFAIR LABOR
PRACTICE.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON MARCH 18, 1982 AT LOS
ANGELES, CALIFORNIA. ALL PARTIES WERE REPRESENTED THEREAT, AND EACH WAS
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO
EXAMINE AS WELL AS CROSS-EXAMINATION WITNESSES. THEREAFTER, BRIEFS WERE
FILED WITH THE UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN, AND STILL IS, THE
COLLECTIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S GENERAL SCHEDULE
EMPLOYEES, INCLUDING SUCH UNIT EMPLOYEES AT THE HUNTINGTON PARK DISTRICT
OFFICE IN HUNTINGTON PARK, CALIFORNIA.
2. APPROXIMATELY 70-80 EMPLOYEES ARE EMPLOYED AT THE AFORESAID
DISTRICT OFFICE WHICH IS LOCATED IN A LARGE RECTANGULAR, ONE-STORY
BUILDING. THE VARIOUS EMPLOYEES, WHICH INCLUDE CLAIMS REPRESENTATIVES
AND CLAIMS DEVELOPMENT CLERKS, ARE ORGANIZED INTO MODULES OR UNITS WITH
A SUPERVISOR FOR EACH MODULE. WORK IS CONDUCTED IN A LARGE OPEN AREA ON
THE FLOOR WHERE EMPLOYEES WORK AT DESKS VISIBLE TO RESPECTIVE
SUPERVISORS. THE LUNCHROOM, /2/ STOCKROOM AND MANAGEMENT OFFICES ARE NOT
IN THE OPEN AREA AND ARE NOT VISIBLE THEREFROM.
3. STAFF MEETINGS ARE GENERALLY CONDUCTED BY RESPONDENT ON FRIDAY OF
EACH WEEK, AND THEY ARE ATTENDED BY ALL EMPLOYEES AND SUPERVISORS. AT
THE STAFF MEETING ON SEPTEMBER 25, 1981 DISTRICT MANAGER LEONARDO
FERNANDEZ REMINDED THE EMPLOYEES THAT NO LIQUIDS (INCLUDING COFFEE, SODA
OR WATER) WERE PERMITTED AT THEIR DESKS AT ANY TIME. THE MANAGER
MENTIONED HE WAS PARTICULARLY CONCERNED ABOUT SPILLING COFFEE ON A NEW
CARPET LAID IN THE RECENT ANNEX TO THE OLD BUILDING.
4. RECORD FACTS REFLECT THAT AT A STAFF MEETING ON APRIL 24, 1981
FERNANDEZ MENTIONED TO THE EMPLOYEES THAT NO DRINKS WERE ALLOWED ON THE
FLOOR, ESPECIALLY WHEN THE NEW PART OF THE BUILDING IS COMPLETED.
FURTHER, THE DISTRICT MANAGER ANNOUNCED THIS PROHIBITION AS TO LIQUIDS
AT DESKS SEVERAL TIMES A YEAR AT STAFF MEETINGS. HE TESTIFIED THAT ON
FOUR OCCASIONS DURING THE PAST EIGHT YEARS HE SPOKE TO VIOLATORS IN THIS
REGARD. EMPLOYEE RAISHART TESTIFIED THAT YEARS AGO THE ASSISTANT
MANAGER, OR OPERATIONS OFFICER, MENTIONED /3/ AT STAFF MEETINGS THAT
LIQUIDS SHOULD NOT BE ON EMPLOYEES' DESKS AFTER 9:00 A.M.
5. DESPITE THE ENUNCIATION BY MANAGEMENT THAT BEVERAGES WERE NOT
PERMITTED ON THE FLOOR, THE RECORD REVEALS THAT IT WAS CUSTOMARY, PRIOR
TO SEPTEMBER 25, 1981, FOR VARIOUS EMPLOYEES TO BRING SOFT DRINKS, OR
WATER, TO THEIR DESKS DURING THE WORKSHIFT. /4/ EMPLOYEES WOULD
FREQUENTLY FINISH THOSE DRINKS AT THEIR DESKS AFTER LUNCH, AND RECORD
FACTS DISCLOSE THAT, ON OCCASION, SUPERVISORS FINISHED BEVERAGES AT
THEIR DESKS IN THE PAST. THE RECORD ALSO INDICATED THAT IN EACH MODULE
THE EMPLOYEES' DESKS WERE WITHIN VIEW OF THE SUPERVISOR. SEVERAL
INDIVIDUALS STATED THAT NO COMMENT WAS MADE BY SUPERVISORY PERSONNEL ON
MANY OCCASIONS WHEN EMPLOYEES HAD BEVERAGES, WHICH WERE VISIBLE TO
SUPERVISORS, ON THEIR DESKS. CLAIMS REPRESENTATIVE ROLANDO LONGARIO
TESTIFIED, AND I FIND, THAT NONE OF HIS FIVE SUPERVISORS EVER SPOKE TO
HIM REGARDING HAVING BEVERAGES ON HIS DESK PRIOR TO SEPTEMBER 25, 1981.
TERRENCE EVANSTON, A LIKE EMPLOYEE, TESTIFIED, AND I FIND, THAT NONE OF
HIS FOUR SUPERVISORS SPOKE TO HIM CONCERNING LIQUIDS ON HIS DESK PRIOR
TO SAID DATE.
6. JANICE RAISHART TESTIFIED, AND I FIND, THAT EMPLOYEES CONTINUED,
AFTER SEPTEMBER 25, 1981, TO HAVE BEVERAGES AT THEIR DESKS SINCE THE
RESTRICTIVE POLICY WAS NOT ENFORCED UNTIL ABOUT TWO WEEKS LATER.
ANOTHER STAFF MEETING WAS THEN HELD BY MANAGEMENT AT WHICH TIME THE
POLICY IN REGARD TO LIQUIDS WAS REPEATED. NO EMPLOYEES HAVE BROUGHT
BEVERAGES TO THEIR DESKS SINCE THAT TIME. ALL FOOD AND DRINKS ARE TO BE
CONSUMED IN THE LUNCHROOM DURING BREAKS OR AT LUNCH TIME.
7. RESPONDENT CONCEDES, AND I FIND, THAT NO NOTIFICATION WAS GIVEN BY
MANAGEMENT TO THE UNION CONCERNING THE PROHIBITION OF BEVERAGES ON
DESKS, AS ANNOUNCED ON SEPTEMBER 25. MANAGEMENT NEITHER ADVISED THE
UNION THAT THE RULE WOULD BE ENFORCED NOR SOUGHT TO BARGAIN WITH THE
REPRESENTATIVE REGARDING THE RESTRICTIVE POLICY.
CONCLUSIONS
IT IS CONTENDED BY GENERAL COUNSEL THAT ON SEPTEMBER 25, 1981
RESPONDENT UNILATERALLY CHANGED WORKING CONDITIONS AT THE HUNTINGTON
PARK DISTRICT OFFICE BY PROHIBITING EMPLOYEES FROM HAVING BEVERAGES AT
THEIR DESKS. IN SUPPORT OF THIS CONTENTION IT IS ASSERTED THAT, PRIOR TO
THE AFOREMENTIONED DATE, THE AGENCY PERMITTED EMPLOYEES TO HAVE
BEVERAGES AT DESKS DURING WORK HOURS; THAT THIS PRACTICE EXISTED FOR
MANY YEARS; AND THAT MANAGEMENT CHANGED THIS PRACTICE-- WHICH HAD
BECOME A CONDITION OF EMPLOYMENT-- WITHOUT NOTIFICATION TO, OR
BARGAINING WITH, THE UNION HEREIN.
RESPONDENT TAKES THE POSITION THAT THE ANNOUNCEMENT ON SEPTEMBER 25,
1981 WAS NOT A CHANGE IN EMPLOYMENT CONDITIONS. IT ARGUES THAT THE RULE
AGAINST PERMITTING DRINKS AT EMPLOYEES' DESKS WAS A LONG STANDING ONE;
THAT THE POLICY OUTLAWING BEVERAGES AT DESKS WAS MERELY REAFFIRMED ON
SEPTEMBER 25. SINCE NO CHANGE OCCURRED WITH RESPECT TO THIS MATTER, IT
IS CLAIMED THERE WAS NO NEED TO NOTIFY THE UNION IN THIS REGARD OR
BARGAIN WITH IT CONCERNING THE PROHIBITION.
IT IS SETTLED AND UNDISPUTED IN THE PUBLIC SECTOR THAT AN EMPLOYER
MAY NOT UNILATERALLY CHANGE CONDITIONS OF EMPLOYMENT. ANY SUCH CHANGES
REQUIRE, IN ADVANCE, NOTIFICATION TO THE BARGAINING AGENT AND, UPON
REQUEST, NEGOTIATIONS WITH THE UNION IN RESPECT THERETO. FURTHER, TERMS
AND CONDITIONS OF EMPLOYMENT MAY BE ESTABLISHED BY PRACTICE, AS WELL AS
SOME FORM OF TACIT OR INFORMAL AGREEMENT, AND THESE ALSO MAY NOT BE
ALTERED IN THE ABSENCE OF AGREEMENT OR IMPASSE WITHOUT GOOD FAITH
BARGAINING. INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, 6
FLRA NO. 127; DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER,
NEWPORT NAVAL BASE, 3 FLRA NO. 64. IT IS ALSO TRUE THAT TO CONSTITUTE
THE ESTABLISHMENT BY PRACTICE OF A TERM AND CONDITION OF EMPLOYMENT, THE
PRACTICE MUST BE CONSISTENTLY EXERCISED FOR AN EXTENDED PERIOD OF TIME
WITH RESPONDENT'S KNOWLEDGE AND CONSENT. SEE UNITED STATES DEPARTMENT OF
JUSTICE, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, 9 FLRA
NO. 36; DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER NEWPORT
NAVAL BASE, SUPRA.
IN THE CASE AT BAR IT IS APPARENT THAT, DESPITE MANAGEMENT'S
PRONOUNCED RULE AGAINST DRINKING BEVERAGES AT DESKS, THE EMPLOYEES
ADHERED TO THE PRACTICE OF DOING SO FOR MANY YEARS. THE CREDITED
TESTIMONY OF GENERAL COUNSEL'S WITNESSES REFLECTS THAT THE RULE WAS
HONORED MORE IN ITS BREACH THAN OBSERVANCE. THUS, FOR A VERY EXTENDED
PERIOD EMPLOYEES BROUGHT SOFT DRINKS TO THEIR DESKS UPON RETURNING FROM
THE LUNCHROOM OR AFTER 'COFFEE BREAKS'. MOREOVER, THE MODULE
SUPERVISORS, WHOSE DESKS WERE STATIONED CLOSE TO THOSE OF THEIR UNIT
WORKERS, DID NOT-- EXCEPT ON RARE OCCASIONS-- CENSURE OR CONFRONT THE
EMPLOYEES WHO DRANK BEVERAGES AT THEIR DESKS. WHILE RESPONDENT'S
DISTRICT MANAGER, LEONARDO FERNANDEZ, REMINDED THE STAFF OF A MEETING ON
APRIL 24, 1981, THAT SUCH CONDUCT WAS NOT PERMITTED, THE EMPLOYEES
CONTINUED TO HAVE LIQUIDS, OTHER THAN COFFEE, AT THEIR DESKS THEREAFTER.
FURTHER, RECORD FACTS REVEAL THEY DID SO IN THE PRESENCE OF SUPERVISORS
AND, FOR THE MOST PART, WERE NEITHER CHALLENGED NOR REBUKED THEREFOR.
THIS PATTERN OF BEHAVIOR, EXERCISED OVER SUCH A LONG PERIOD OF TIME,
PERSUADES ME THAT RESPONDENT IMPLIEDLY CONSENTED TO SUCH CONDUCT ALBEIT
THE POLICY MAY HAVE BEEN TO THE CONTRARY. UNDER THESE CIRCUMSTANCES, THE
PRACTICE OF DRINKING BEVERAGES BY EMPLOYEES AT THEIR DESKS RIPENED INTO
A CONDITION OF EMPLOYMENT.
RESPONDENT URGES THAT THE SEPTEMBER 25, 1981 ANNOUNCEMENT WAS MERELY
A REITERATION OF ITS RULE OR POLICY RATHER THAN A CHANGE IN ANY TERM OR
CONDITION OF EMPLOYMENT. A SIMILAR ARGUMENT WAS MADE BY THE EMPLOYER IN
NEW YORK ARMY AND AIR NATIONAL GUARD, ALBANY, NY, A/SLMR NO. 441. IN THE
CITED CASE THE NATIONAL GUARD ISSUED A MEMORANDA IN MAY, 1971 TO SOME
UNIT EMPLOYEES WHICH REITERATED THE REQUIREMENT THAT MILITARY FORMS OF
ADDRESS BE USED IN FORMAL CORRESPONDENCE. THE ACTIVITY HAD TOLERATED,
SINCE 1969, EXTENSIVE DEVIATIONS FROM THE REGULATORY REQUIREMENT. IT WAS
CONCLUDED BY THE ASSISTANT SECRETARY THAT, UNDER THOSE CIRCUMSTANCES,
THE MEMORANDA CONSTITUTED A CHANGE IN WORKING CONDITIONS. ACCORDINGLY,
THE FAILURE BY MANAGEMENT TO MEET AND CONFER WITH THE BARGAINING
REPRESENTATIVE REGARDING THE USE OF MILITARY TITLES WAS VIOLATIVE OF
EXECUTIVE ORDER 11491, AS AMENDED. /5/ I FEEL CONSTRAINED, LIKEWISE, TO
REJECT THE RESPONDENT'S CONTENTION HEREIN THAT THE SEPTEMBER 25
ANNOUNCEMENT WAS JUST A REAFFIRMATION OF AN EXISTENT RULE. THE AGENCY
HAS TOLERATED CONTINUED DEPARTURES FROM ITS REQUIREMENT THAT ALL
BEVERAGES BE CONSUMED IN THE LUNCHROOM AND NOT AT EMPLOYEES' DESKS.
THUS, I CONCLUDE THE TERMINATION ON SEPTEMBER 25, 1981 OF THE PRACTICE
OF DRINKING LIQUIDS, OTHER THAN COFFEE, AT SUCH DESKS WAS A CHANGE IN
SUCH PRACTICE. /6/
RESPONDENT, IN ITS BRIEF, CITES SOCIAL SECURITY ADMINISTRATION, TULSA
DISTRICT OFFICE, TULSA, OKLAHOMA, 1 FLRA NO. 67, IN SUPPORT OF ITS
POSITION THAT THERE WAS NO CHANGE HEREIN OF A WORKING CONDITION. THE
EMPLOYER IN THE CITED CASE ISSUED A MEMORANDUM ON JANUARY 24, 1978
REGARDING ITS POLICY ON FOOD AND DRINK AT DESKS. IT WAS EXPRESSLY STATED
THAT THE PURPOSE OF THE MEMO WAS TO REMIND THE EMPLOYEES OF THE EXISTING
POLICY, TO WIT: FOOD AND DRINK WERE NOT TO BE AT EMPLOYEES' DESKS AFTER
9:00 A.M. THIS POLICY HAD BEEN IN EFFECT SINCE 1972, AND IT WAS
CONCLUDED THAT THE MEMORANDUM OF 1978 WAS NOT A UNILATERAL CHANGE SO AS
TO VIOLATE EXECUTIVE ORDER 11491, AS AMENDED. I AM PERSUADED, HOWEVER,
THAT THE OKLAHOMA CASE IS DISTINGUISHABLE FROM THE ONE AT HAND. IN THE
CITED CASES THE EMPLOYEES HAD SUBSTANTIALLY COMPLIED WITH THE POLICY OF
NOT ALLOWING DRINKS AT DESKS. THUS, THE OCCASIONAL LAXITY IN ENFORCING
THE RULE WAS NOT DEEMED SIGNIFICANT. IN THE CASE AT BAR THE EVIDENCE IS
CONTRARIWISE. THE POLICY WAS SCARCELY COMPLIED WITH AT ALL, AND THE LAX
ENFORCEMENT BY MANAGEMENT HAD CREATED AND INDUCED A PRACTICE BY
EMPLOYEES OF BRINGING BEVERAGES TO DESKS DURING WORKING HOURS. AS SUCH,
AND IN CONTRAST TO THE CITED CASE, THE SAID PRACTICE HAD BEEN TOLERATED
AND SANCTIONED FOR YEARS BY MANAGEMENT SO AS TO DEVELOP INTO A CONDITION
OF EMPLOYMENT.
ACCORDINGLY, I CONCLUDE THAT THE UNILATERAL CHANGE OF THIS PRACTICE
BY THE ANNOUNCEMENT ON SEPTEMBER 25, 1981 ON THE PART OF MANAGEMENT, AND
ITS ATTEMPTED ENFORCEMENT THEREAFTER, WITHOUT NOTIFYING THE UNION HEREIN
AND BARGAINING WITH RESPECT THERETO, ARE VIOLATIONS OF SECTIONS
7116(A)(1) AND (5) OF THE STATUTE. IN ACCORDANCE THEREWITH I RECOMMEND
THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTIONS 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND SECTIONS 2423.29 OF THE RULES AND
REGULATIONS, IT IS HEREBY ORDERED THAT THE SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES WITH RESPECT TO THE PAST PRACTICE OF
PERMITTING EMPLOYEES TO DRINK
BEVERAGES, OTHER THAN COFFEE, AT THEIR DESKS DURING WORKING HOURS,
WITHOUT FIRST NOTIFYING
AND, UPON REQUEST, BARGAINING IN GOOD FAITH WITH THE AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES.
(B) 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 ACTIONS:
(A) RESCIND AND REVOKE THE SEPTEMBER 25, 1981 ANNOUNCED CHANGE IN THE
ESTABLISHED PRACTICE
OF PERMITTING EMPLOYEES TO DRINK BEVERAGES, OTHER THAN COFFEE, AT
THEIR DESKS DURING WORKING
HOURS, AND, UPON REQUEST, BARGAIN IN GOOD FAITH WITH RESPECT TO ANY
SUCH INTENDED CHANGE WITH
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES.
(B) POST AT ITS HUNTINGTON PARK, CALIFORNIA FACILITY, 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 DIRECTOR OF THE SOCIAL SECURITY
ADMINISTRATION,
HUNTINGTON DISTRICT OFFICE, HUNTINGTON PARK, CALIFORNIA, AND SHALL BE
POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS
AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE DISTRICT DIRECTOR
SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED OR COVERED BY
ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR, REGION 8, 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.
/1/ AT THE HEARING GENERAL COUNSEL AMENDED PARAGRAPH 11 OF THE
COMPLAINT BY CHANGING THE DATE FROM SEPTEMBER 28, TO SEPTEMBER 25, 1981.
/2/ VENDING MACHINES CONTAINING FOOD AND BEVERAGES WERE LOCATED
THEREAT.
/3/ THE RULE RESTRICTING THE USE OF BEVERAGES OR LIQUIDS AT THE DESKS
OF EMPLOYEES WAS NEVER EMBODIED IN A WRITTEN MEMORANDUM OR NOTICE TO THE
STAFF.
/4/ MANAGEMENT WAS PARTICULARLY SENSITIVE ABOUT THE REACTION OF THE
PUBLIC TO EMPLOYEES DRINKING COFFEE AT WORK. HENCE, THE SUPERVISORS WERE
STRICT IN PROHIBITING COFFEE AT DESKS AFTER 9:00 A.M. HENCE, I FIND THE
RULE AS TO COFFEE WAS ENFORCED BY MANAGEMENT AND COMPLIED WITH BY
EMPLOYEES.
/5/ THE PREDECESSORS TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
/6/ SEE ALSO SOCIAL SECURITY ADMINISTRATION, CINCINNATI DOWNTOWN
OFFICE, CINCINNATI, OHIO, A/SLMR NO. 1124 (APPEAL DENIED IN 1 FLRA 129)
WHERE THE EMPLOYER'S IMPLEMENTATION OF A POLICY PROHIBITING FOOD AND
DRINK IN THE OFFICE WAS DEEMED A CHANGE IN EXISTING PERSONNEL PRACTICE,
RATHER THAN A REAFFIRMATION OF AN EXISTING PRACTICE. THIS CONCLUSION WAS
BASED, IN LARGE PART, ON THE FACT THAT PRIOR TO THE ISSUANCE OF THE
POLICY, A STRICT FOOD AND DRINK POLICY HAD FALLEN INTO DISUSE.
(NOTWITHSTANDING THIS CONCLUSION, NO UNFAIR LABOR PRACTICE WAS FOUND
SINCE IT WAS DETERMINED THAT THE EMPLOYER HAD BARGAINED WITH THE UNION
AS TO THE CHANGE.)
WILSON SCHUERHOLZ, ESQ.
FOR THE RESPONDENT
E. A. JONES, ESQ.
FOR THE GENERAL COUNSEL
JEFFREY DASTEEL
FOR THE CHARGING PARTY
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 INSTITUTE CHANGES WITH RESPECT TO THE PAST PRACTICES OF
PERMITTING EMPLOYEES TO DRINK BEVERAGES, OTHER THAN COFFEE, AT THEIR
DESKS DURING WORKING HOURS, WITHOUT FIRST NOTIFYING AND, UPON REQUEST,
BARGAINING IN GOOD FAITH WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES.
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 RESCIND AND REVOKE THE SEPTEMBER 25, 1981 ANNOUNCED CHANGE IN
THE ESTABLISHED PRACTICE OF PERMITTING EMPLOYEES TO DRINK BEVERAGES,
OTHER THAN COFFEE, AT THEIR DESKS DURING WORKING HOURS, AND, UPON
REQUEST, BARGAIN IN GOOD FAITH WITH RESPECT TO ANY SUCH INTENDED CHANGE
WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
. . . (AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, REGION VIII FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE
ADDRESS IS: 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CA
90071 AND WHOSE TELEPHONE NUMBER IS: (213) 688-3805. 770801 0000450
15 FLRA-ALJ; CASE NOS. 5-CA-985 5-CA-1015 JULY 23, 1982
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AND INTERNAL
REVENUE SERVICE, INDIANAPOLIS DISTRICT, RESPONDENT, AND NATIONAL
TREASURY EMPLOYEES UNION, AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
49, CHARGING PARTY
BEFORE: SAMUEL A. CHAITOVITZ, 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., 92 STAT. 1191 (HEREINAFTER REFERRED TO AS THE STATUTE),
AND THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
(FLRA), 5 C.F.R. CHAPTER XIV, SEC. 2410 ET SEQ.
A CHARGE WAS FILED ON MARCH 13, 1981 IN CASE NO. 5-CA-985, BY THE
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 49 (HEREINAFTER CALLED THE UNION OR NTEU), AGAINST THE INTERNAL
REVENUE SERVICE AND INTERNAL REVENUE SERVICE, INDIANAPOLIS DISTRICT
(HEREINAFTER CALLED RESPONDENT OR IRS), ALLEGING THAT IRS VIOLATED
SECTION 7116(A)(1) AND (2) OF THE STATUTE BY UNLAWFULLY DISCRIMINATING
AGAINST WALTER BARCUS. A CHARGE WAS FILED ON MARCH 25, 1981 IN CASE NO.
5-CA-1015 BY NTEU AGAINST IRS ALLEGING THAT RESPONDENT VIOLATED SECTION
7116(A)(1), (5), AND (8) OF THE STATUTE BY REFUSING TO SUPPLY THE UNION
WITH CERTAIN INFORMATION AS REQUIRED BY SECTION 7114 OF THE STATUTE.
ON JUNE 30, 1981 A COMPLAINT AND NOTICE OF HEARING WAS ISSUED IN CASE
NO. 5-CA-985 AND ON JULY 24, 1981 A COMPLAINT AND NOTICE OF HEARING WAS
ISSUED IN CASE NO. 5-CA-1015. ON JULY 24, 1981 AN ORDER CONSOLIDATING
CASES WAS ISSUED IN CASE NOS. 5-CA-985 AND 5-CA-1015 FOR THE PURPOSE OF
HEARING. RESPONDENT FILED ANSWERS IN THESE TWO MATTERS DENYING THAT IT
HAD COMMITTED THE ALLEGED UNFAIR LABOR PRACTICES.
A HEARING WAS CONDUCTED BEFORE THE UNDERSIGNED IN INDIANAPOLIS,
INDIANA. IRS, NTEU, AND GENERAL COUNSEL OF THE FLRA WERE REPRESENTED AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, TO INTRODUCE EVIDENCE, AND TO ARGUE ORALLY. ALL PARTIES FILED
POST HEARING BRIEFS WHICH HAVE BEEN FULLY CONSIDERED.
BASED UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
ON JANUARY 31, 1977 IRS ENTERED INTO A COLLECTIVE BARGAINING
AGREEMENT WITH NTEU WHEREIN RESPONDENT RECOGNIZED THE UNION AS THE
COLLECTIVE BARGAINING REPRESENTATIVE FOR A UNIT INCLUDING IRS'
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES LOCATED IN THE IRS'
INDIANAPOLIS DISTRICT OFFICE, WITH CERTAIN EXCEPTIONS NOT HERE RELEVANT.
A NEW COLLECTIVE BARGAINING AGREEMENT COVERING THE SAME UNIT WAS ENTERED
INTO ON JANUARY 26, 1981 WHICH EXPIRES JANUARY 26, 1985. AT ALL TIMES
MATERIAL HEREIN NTEU CHAPTER 49 HAS BEEN THE AGENT FOR AND ACTING ON
BEHALF OF NTEU.
A. CASE NO. 5-CA-985
AT ALL TIMES MATERIAL HEREIN WALTER BARCUS HAS BEEN AN INTERNAL
REVENUE AGENT EMPLOYED IN IRS' INDIANAPOLIS DISTRICT. BARCUS HAS BEEN AN
INTERNAL REVENUE AGENT FOR ABOUT 16 YEARS, THE LAST 10 OR 11 AT THE
GS-11 LEVEL. SINCE 1972 HE HAS ALSO SERVED AS A STEWARD FOR NTEU CHAPTER
49 IN THE LAFAYETTE, INDIANA OFFICE.
PRIOR TO MARCH 17, 1980 BARCUS HAD RECEIVED ANNUAL APPRAISALS ON HIS
ANNIVERSARY OF EMPLOYMENT WITH IRS AND HIS PERFORMANCE WAS CONSISTENTLY
RATED AS SATISFACTORY, ALTHOUGH IN 1978 BARCUS RECEIVED FROM HIS
SUPERVISOR AN INDIVIDUAL DEVELOPMENT PLAN WHICH NOTED CERTAIN AREAS THAT
NEEDED IMPROVEMENT. BARCUS' SUPERVISORS REVIEWED ABOUT 25 PERCENT OF HIS
CASES. THE CASE EVALUATIONS WERE GENERALLY ONE OR TWO PAGES LONG, WERE
GIVEN TO BARCUS WITHIN A DAY OR TWO OF WHEN THE CASES WERE SUBMITTED FOR
REVIEW, AND GENERALLY RATED THE QUALITY OF BARCUS' WORK FROM GOOD TO
VERY GOOD.
ON MARCH 15, 1980 JOHN HUNTER BECAME THE LAFAYETTE INDIANA GROUP
MANAGER AND THUS BARCUS' IMMEDIATE SUPERVISOR. DURING 1980 BARCUS FILED
FOUR OR FIVE GRIEVANCES, ONE OR TWO ON BEHALF OF HIMSELF, ONE ON BEHALF
OF FELLOW REVENUE AGENT WILLIAM LUTGEN AND TWO ON BEHALF OF FELLOW
REVENUE AGENT TERE MYNATT. BOTH MYNATT AND LUTGEN ARE IN BARCUS' WORK
GROUP UNDER HUNTER'S SUPERVISION. THESE GRIEVANCES WERE EITHER HEARD BY
OR INVOLVED HUNTER AND NO GRIEVANCES WERE FILED BY OTHER EMPLOYEES. THE
GRIEVANCE ON LUTGEN'S BEHALF APPARENTLY DEALT WITH THE GRANTING OF
ADMINISTRATIVE LEAVE DURING A BLIZZARD AND WAS FILED UPON SOON AFTER
HUNTER BECAME GROUP MANAGER. ONE OF THE GRIEVANCES INVOLVING MYNATT
INVOLVED HUNTER'S DECISION TO WITHHOLD MYNATT'S WITHIN GRADE INCREASE
BECAUSE OF WORK PERFORMANCE DEFICIENCY. THIS GRIEVANCE WAS FILED, IN
JUNE OR JULY 1980. AFTER THE FIRST STEP PROCEDURE, HUNTER GRANTED MYNATT
A WITHIN GRADE STEP WAGE INCREASE AND, BECAUSE OF WORK IMPROVEMENT,
HUNTER RECOMMENDED MYNATT BE PROMOTED TO A GRADE GS-11 IN 1981.
DURING THE LATTER PART OF 1979 RICHARD OSER, WHO HAD BEEN RECENTLY
APPOINTED BRANCH CHIEF OVER THE LAFAYETTE, INDIANA GROUP MANAGER, WENT
TO LAFAYETTE TO INVESTIGATE THE EXPIRATION OF THE STATUTE OF LIMITATIONS
IN A CASE HANDLED BY LAFAYETTE GROUP. /1/ BEFORE GOING TO LAFAYETTE,
OSER REVIEWED REPORTS THAT ARE ROUTINELY SUBMITTED TO HIM AND IDENTIFIED
OLD CASES TO EXAMINE IN ORDER TO DETERMINE WHETHER THEY HAD BEEN
ADEQUATELY PROTECTED FROM EXPIRATION OF THE STATUTE OF LIMITATIONS. ONE
OF THE CASES OSER SELECTED FOR REVIEW WAS ONE THAT HAD BEEN ASSIGNED TO
BARCUS. THE CASE CAUSED OSER CONCERN BECAUSE OF THE LARGE AMOUNT OF
TIME, 100 HOURS, BARCUS HAD DEVOTED TO IT BEFORE THE REVIEW AND BARCUS'
DETERMINATION, AFTER THAT EXPENDITURE OF TIME, TO USE A DIFFERENT
APPROACH IN EXAMINATION OF THE RETURN. FURTHER, DURING THE VISIT OSER
OBSERVED THAT BARCUS AND MYNATT, WHO HAD BEEN ASSIGNED THE DEVELOPMENT
OF TAX PROTESTOR CASES, A HIGH PRIORITY AREA, HAD NOT FOLLOWED THROUGH
ON THEIR TASK. OSER MET HUNTER, WHEN HUNTER WAS ON HIS WAY TO TAKE OVER
AS LAFAYETTE GROUP MANAGER AND OSER EXPRESSED HIS CONCERN AT THE WAY
CASES WERE BEING HANDLED, AT THE OVER AGE CASES AND AT THE FACT THAT TAX
PROTESTOR CASES WEREN'T BEING PROCESSED. OSER MENTIONED BARCUS AS HAVING
A NUMBER OF RELATIVELY OLD CASES.
SHORTLY AFTER ARRIVING IN LAFAYETTE ON MARCH 17, 1980 HUNTER
CONDUCTED A REVIEW OF ONE OF BARCUS' CASES. HUNTER DECIDED THAT BARCUS'
PROCESSING OF THIS CASE WAS UNSATISFACTORY. HUNTER CONTINUED TO REVIEW
BARCUS' WORK THROUGHOUT THE REMAINDER OF 1980 AND THUS CONFIRMED
HUNTER'S INITIAL FEELING THAT BARCUS' JOB PERFORMANCE WAS DEFICIENT.
HUNTER DETERMINED THAT BARCUS WAS EITHER UNABLE OR UNWILLING TO USE HIS
TIME EFFECTIVELY AND TO APPLY PROPER EXAMINATION TECHNIQUES. HUNTER MET
WITH BARCUS OFTEN AND ADVISED HIM OF HIS JOB PERFORMANCE SHORTCOMINGS
AND WHAT ASPECTS NEEDED IMPROVEMENT. IN HUNTER'S VIEW BARCUS' WORK
PERFORMANCE DID NOT IMPROVE. HUNTER DETERMINED THAT BARCUS' JOB
PERFORMANCE WAS UNACCEPTABLY DEFICIENT AND ADVISED BARCUS THAT BARCUS'
ANNUAL PERFORMANCE RATING DUE ON SEPTEMBER 10, 1980 WOULD BE POSTPONED
BECAUSE OF BARCUS' DEFICIENT WORK PERFORMANCE. HUNTER DEVISED A
SELF-DEVELOPMENT PLAN FOR BARCUS SO THAT BARCUS COULD CORRECT
PERFORMANCE DEFICIENCIES.
BARCUS' WORK PERFORMANCE DID NOT IMPROVE AND ON JANUARY 15, 1981
HUNTER PREPARED A LETTER WARNING BARCUS THAT IMPROVEMENT IN HIS
PERFORMANCE WOULD BE REQUIRED WITHIN 60 DAYS. THIS 60-DAY LETTER WAS
GIVEN TO BARCUS ON FEBRUARY 5, 1981. BARCUS' WORK WAS THEREAFTER
REVIEWED ON A BIWEEKLY BASIS AND HUNTER CONCLUDED THE DEFICIENCIES IN
BARCUS' PERFORMANCE CONTINUED. ACCORDINGLY, HUNTER RECOMMENDED THAT
ADVERSE ACTION BE PROPOSED AND A NOTICE OF PROPOSED ADVERSE ACTION WAS
ISSUED TO BARCUS ON MAY 29, 1981, BY JAMES L. FRANK, CHIEF OF IRS'
EXAMINATION DIVISION.
UPON BECOMING GROUP MANAGER ON MARCH 17, 1980 HUNTER REVIEWED 80 TO
90 PERCENT OF BARCUS' CASES AND PREPARED EVALUATIONS THAT WERE 20 TO 40
PAGES IN LENGTH AND WERE ALMOST TOTALLY NEGATIVE WITH RESPECT TO BARCUS'
WORK. /2/ WITH RESPECT TO OTHER EMPLOYEES HUNTER EVALUATED 80-90 PERCENT
OF THE WORK OF SOME EMPLOYEES AND ABOUT 25-40 PERCENT OF OTHERS, /3/ HIS
EVALUATIONS WERE VERY LENGTHY AND, IN A NUMBER OF INSTANCES, IN ADDITION
TO BARCUS, MYNATT AND LUTGEN, HUNTER'S EVALUATION WERE NEGATIVE AND
HIGHLY CRITICAL. HUNTER ALSO PERFORMED MANY WORKLOAD REVIEWS OF THE
EMPLOYEES UNDER HIS SUPERVISION.
DURING JANUARY 1981 HUNTER ADVISED BARCUS, THE UNION SHOP STEWARD,
THAT HUNTER WISHED TO MAKE SOME MINOR CHANGES IN THE WAY THE FURNITURE
WAS ARRANGED. BARCUS INDICATED HE HAD NO OBJECTION AND SUGGESTED SOME
CHANGES HE WISHED MADE, APPARENTLY TO GIVE HIMSELF SOME ADDITIONAL
TELEPHONE PRIVACY. THE FURNITURE WAS THEN MOVED. HUNTER WAS THEN
INSTRUCTED BY OSER TO REPLACE THE FURNITURE IN ITS PRIOR POSITION
BECAUSE THE NTEU HAD NOT BEEN PROPERLY NOTIFIED. THE FURNITURE WAS
ACCORDINGLY RESTORED TO ITS PRIOR POSITION.
DURING MAY OF 1980 HUNTER, DURING THE COURSE OF A STAFF CONFERENCE
ADVISED HIS STAFF THAT HE DID NOT BELIEVE THAT THEY WERE ENTITLED TO
WORK BREAKS BUT THAT IF THEY HAD BEEN TAKING WORK BREAKS, THEY WOULD
CONTINUE AS LONG AS THEY DID NOT ABUSE IT. EMPLOYEES THEN ASKED IF THEY
COULD ADD BREAK TIME TO THEIR ALLOTED LUNCH TIME IF THEY DID NOT TAKE
BREAKS. HUNTER REPLIED IN THE NEGATIVE. /4/ DURING JANUARY 1981 HUNTER,
WHILE CLEANING OUT FILES, CAME UPON A DOCUMENT ISSUED BY THE
INDIANAPOLIS DISTRICT WHICH STATED THAT EMPLOYEES WERE ENTITLED TO
BREAKS. HUNTER DISCUSSED THE MATTER AND THE DOCUMENT WITH HIS LABOR
RELATIONS OFFICE AND THEN ISSUED A MEMORANDUM ADVISING THE EMPLOYEES
THAT THEY ARE IN FACT ENTITLED TO BREAKS.
B. CASE NO. 5-CA-1015
BY LETTER DATED FEBRUARY 20, 1981 NTEU CHAPTER 49 PRESIDENT GENE
FRIEDMAN REQUESTED THAT RESPONDENT'S CHIEF OF THE RESOURCES MANAGEMENT
DIVISION, DEAN R. BROWN, FURNISH THE UNION, "PURSUANT TO RIGHTS UNDER 5
U.S.C. 7114(B)(4)(B) AND UNDER THE FREEDOM OF INFORMATION ACT . . . ",
COPIES OF MONTHLY REPORTS, CASE EVALUATIONS, WORKLOAD REVIEWS AND
PLANNING CALENDARS, FOR THE PERIOD OF MARCH 1980 TO FEBRUARY 20, 1981,
OF ALL EMPLOYEES IN GROUP 1213, THE GROUP TO WHICH BARCUS WAS A MEMBER.
SOMETIME EARLY IN MARCH 1981 FRIEDMAN SPOKE TO IRS' DISCLOSURE
OFFICER LARRY HARMEYER, WHO INFORMED FRIEDMAN THAT THE IRS WOULD PROVIDE
THE REQUESTED INFORMATION UNDER THE FREEDOM OF INFORMATION ACT, IF THE
UNION WAS WILLING TO PAY FOR IT. FRIEDMAN ADVISED HARMEYER THAT NTEU
WANTED THE REQUESTED DOCUMENTS FIRST UNDER THE STATUTE AND FRIEDMAN
NOTED THAT IN THE FEBRUARY 20 LETTER HE LISTED FIRST THAT HE WAS MAKING
THE REQUEST PURSUANT TO 5 U.S.C. 7114(B)(4)(B). HARMEYER STATED THAT HE
WOULD ADVISE BROWN THAT NTEU WANTED THE INFORMATION UNDER THE STATUTE.
ON MARCH 9, 1981 FRIEDMAN RECEIVED A LETTER FROM BROWN IN WHICH BROWN
ACKNOWLEDGED THAT ALTHOUGH THE DOCUMENTS WERE REQUESTED IN THE FEBRUARY
20 LETTER UNDER BOTH THE STATUTE AND THE FREEDOM OF INFORMATION ACT, THE
UNION SOUGHT THEM FIRST UNDER SECTION 7114(B)(4)(B) OF THE STATUTE.
BROWN STATED THAT IT WAS HIS "JUDGMENT THAT THE REFERENCED STATUTE IS
NOT APPLICABLE TO YOUR REQUEST AS SUBMITTED." HE THEN WENT ON AND
ADVISED NTEU THAT HE WAS FORWARDING THE REQUEST TO THE DISCLOSURE
OFFICER WHO WOULD CONTACT THE UNION. HE CONCLUDED BY POINTING OUT IF THE
REQUEST IS PROCESSED UNDER THE FREEDOM OF INFORMATION ACT THE UNION WILL
BE CHARGED THE APPROPRIATE FEES.
ON MARCH 9, 1981, AFTER RECEIVING THE ABOVE DESCRIBED LETTER, BROWN
SPOKE TO HARMEYER OVER THE TELEPHONE AND BROWN REITERATED THAT HE WANTED
THE REQUESTED DOCUMENTS TO BE SUPPLIED PURSUANT TO THE STATUTE AND NOT
THE FREEDOM OF INFORMATION ACT.
FIREDMAN RECEIVED A LETTER DATED MARCH 26, 1981 FROM IRS DISTRICT
DIRECTOR PAUL WILLIAMS ADVISING THE UNION THAT IT COULD HAVE THE
REQUESTED DOCUMENTS PURSUANT TO THE FREEDOM OF INFORMATION ACT AND THAT
THE UNION WOULD HAVE TO PAY 10 CENTS FOR EACH PAGE. THE DOCUMENTS WERE
PROVIDED UNDER THE FREEDOM OF INFORMATION ACT AND THE UNION PAID $130.
THE DOCUMENTS WERE REQUESTED BY NTEU IN ORDER TO DETERMINE HOW
BARCUS' WORK COMPARED TO THAT OF OTHER EMPLOYEES IN HIS WORK GROUP. ONE
OF THE CRITICISMS OF BARCUS IN THE 60-DAY WARNING NOTICE OF INEFFICIENCY
CONCERNED THE TIME HE SPENT IN THE OFFICE AND HIS USE OF TIME. THE
DOCUMENTS REQUESTED WERE TO ENABLE THE UNION TO COMPARE BARCUS'
PERFORMANCE, ESPECIALLY WITH RESPECT TO THIS USE OF TIME, WITH THAT OF
OTHER EMPLOYEES, WHOSE PERFORMANCE WAS NOT CRITICIZED. THE INFORMATION
WAS REQUESTED TO PERMIT THE UNION TO DETERMINE WHAT, IF ANY, ACTION NTEU
WOULD TAKE ON BEHALF OF BARCUS. THE REASON THAT THE UNION REQUESTED THE
DOCUMENTS WAS NEVER COMMUNICATED TO IRS BY NTEU.
DISCUSSION AND CONCLUSIONS
A. CASE NO. 5-CA-985
GENERAL COUNSEL OF THE FLRA CONTENDS THAT IRS VIOLATED SECTION
7116(A)(2) AND (1) OF THE STATUTE BECAUSE IT DISCRIMINATED AGAINST
BARCUS BECAUSE BARCUS HAD ENGAGED IN ACTIVITY PROTECTED BY THE STATUTE.
BARCUS, A UNION STEWARD WHO WAS ACTIVE IN THE FILING OF GRIEVANCE ON
BEHALF OF HIMSELF AND OTHER EMPLOYEES, WERE ENGAGING IN ACTIVITY
PROTECTED BY THE STATUTE. CF. COMMUNITY SERVICES ADMINISTRATION, 6 FLRA
617 (1981). FURTHER, THE RECORD DEMONSTRATES IRS REPRESENTATIVES WERE
AWARE OF BARCUS' ACTIVITY AS UNION STEWARD AND IN THE FILING AND
PROCESSING OF GRIEVANCES.
IN ORDER TO ESTABLISH A VIOLATION OF SECTION 7116(A)(2) AND (1) OF
THE STATUTE GENERAL COUNSEL MUST ESTABLISH, IN ADDITION TO THE FACTS
THAT BARCUS ENGAGED IN PROTECTIVE ACTIVITY AND THAT IRS HAD KNOWLEDGE OF
SUCH ACTIVITY, THAT IRS TOOK ACTION AGAINST BARCUS BECAUSE BARCUS HAD
ENGAGED IN THE PROTECTED ACTIVITY. CF. COMMUNITY SERVICES
ADMINISTRATION, SUPRA; INTERNAL REVENUE SERVICE, WASHINGTON, D.C., 6
FLRA 96 (1981). THIS DISCRIMINATORY MOTIVATION MAY BE INFERRED FROM THE
CIRCUMSTANCES SURROUNDING THE ALLEGED DISCRIMINATORY ACT. SEE COMMUNITY
SERVICES ADMINISTRATION, SUPRA.
IN THE SUBJECT CASE, HOWEVER, I CONCLUDE THAT THE RECORD ESTABLISHES
HUNTER'S TREATMENT OF BARCUS, I.E. HUNTER'S NEGATIVE CASE EVALUATIONS,
HIS POSTPONING OF BARCUS' PERFORMANCE APPRAISAL, THE ISSUING OF THE
60-DAY WARNING LETTER AND THE SUBSEQUENT ACTIONS TAKEN AGAINST BARCUS,
WAS BASED ON HUNTER'S DETERMINATION THAT BARCUS' JOB PERFORMANCE WAS
SUBSTANTIALLY DEFICIENT AND WAS NOT BASED ON BARCUS' UNION ACTIVITY. THE
PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT UPON TAKING OVER
SUPERVISION OF THE LAFAYETTE GROUP HUNTER HAD BEEN WARNED BY OSER OF
WORK PERFORMANCE DEFICIENCIES, ESPECIALLY ON BARCUS' PART. HUNTER
EXERCISED HIS RESPONSIBILITIES AND DUTIES CONSCIENTIOUSLY AND ZEALOUSLY.
THE RECORD ESTABLISHES THAT HIS CASE EVALUATIONS WERE APPARENTLY LENGTHY
WITH RESPECT TO ALL EMPLOYEES AND WERE NEGATIVE AND CRITICAL WITH
RESPECT TO A NUMBER OF EMPLOYEES WHO WERE NOT ALLEGED TO HAVE ENGAGED IN
ANY SPECIAL PROTECTED ACTIVITY. FURTHER, WITH RESPECT TO THE ALLEGATION
THAT HE MIGHT HAVE REVIEWED SOME GREATER PERCENTAGE OF BARCUS' CASES
THAN THOSE OF OTHER EMPLOYEES, THE DIFFERENCES IN PERCENTAGE WERE NOT
SHOWN TO BE SIGNIFICANT AND WERE APPARENTLY DUE TO THE NUMBER OF CASES
PRODUCED /5/ AND THE FACT THAT ONCE A DEFICIENCY IN WORK WAS IDENTIFIED,
THE CASES WERE MONITORED TO SEE IF THE DEFICIENCY HAD BEEN REMEDIED.
HUNTER DID NOT TREAT BARCUS SUBSTANTIALLY DIFFERENTLY THAN HUNTER
TREATED THE OTHER EMPLOYEES, EXCEPT INSOFAR AS WARRANTED BY BARCUS' JOB
PERFORMANCE. GENERAL COUNSEL OF THE FLRA POINTS TO THE FACT THAT HUNTER
TREATED BARCUS DIFFERENTLY THAN BARCUS HAD BEEN TREATED BY HIS PREVIOUS
SUPERVISORS. THE RECORD ESTABLISHES, HOWEVER, THAT HUNTER WAS APPARENTLY
MORE CONSCIENTIOUS THAN THE PRIOR SUPERVISORS. HUNTER THUS TREATED ALL
THE EMPLOYEES IN THE GROUP DIFFERENTLY THAN THEY HAD BEEN TREATED BY THE
PRIOR SUPERVISORS. THIS, HOWEVER, IS NOT EVIDENCE FROM WHICH I INTER
DISCRIMINATORY MOTIVATION.
THE RECORD FAILED TO ESTABLISH UNION ANIMUS ON THE PART OF HUNTER.
GENERAL COUNSEL CONTENDS THAT UNION ANIMUS CAN BE INFERRED FROM HUNTER'S
TREATMENT OF LUTGEN AND MYNATT AFTER THEY FILED GRIEVANCES. HOWEVER,
THE RECORD SHOWS THAT THEY WERE NOT TREATED SUBSTANTIALLY DIFFERENTLY
THAN OTHER EMPLOYEES, EXCEPT INSOFAR AS JUSTIFIED BY THEIR WORK
DEFICIENCIES. IN FACT WHEN MYNATT'S WORK HAD SUFFICIENTLY IMPROVED
HUNTER GAVE MYNATT A WITHIN GRADE STEP INCREASE AND RECOMMENDED MYNATT
FOR PROMOTION TO A GS-11. THE PURPOSE OF THE STATUTE IS NOT TO INSULATE
EMPLOYEES FROM DISCIPLINE FOR DEFICIENT WORK MERELY BECAUSE THE
EMPLOYEES ENGAGE IN PROTECTED ACTIVITY, RATHER IT IS TO INSURE THAT
EMPLOYEES ARE NOT DISCRIMINATED AGAINST BECAUSE THEY ENGAGED IN
PROTECTED ACTIVITY.
IN THE INSTANT CASE THE RECORD ESTABLISHES THAT HUNTER TOOK THE
ACTIONS HE DID AGAINST BARCUS AND TREATED BARCUS THE WAY HE DID BECAUSE
HUNTER FOUND BARCUS' JOB PERFORMANCE DEFICIENT AND NOT BECAUSE BARCUS
HAD ENGAGED IN ANY PROTECTED ACTIVITY.
ACCORDINGLY, I CONCLUDE THAT RESPONDENT'S TREATMENT OF BARCUS DID NOT
VIOLATE SECTION 7116(A)(2) AND (1) OF THE STATUTE.
B. CASE NO. 5-CA-1015
SECTION 7114(B)(4) OF THE STATUTE PROVIDES:
"(B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE IN GOOD FAITH UNDER
SUBSECTION (A) OF THIS SECTION SHALL INCLUDE THE OBLIGATION--
"(4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
REPRESENTATIVE INVOLVED, OR ITS
AUTHORIZED REPRESENTATIVE, UPON REQUEST AND, TO THE EXTENT NOT
PROHIBITED BY LAW, DATA--
"(A) WHICH IS NORMALLY MAINTAINED BY THE AGENCY IN THE REGULAR COURSE
OF BUSINESS;
"(B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
DISCUSSION,
UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF
COLLECTIVE BARGAINING; AND
"(C) WHICH DOES NOT CONSTITUTE GUIDANCE, ADVICE, COUNSEL, OR TRAINING
PROVIDED FOR
MANAGEMENT OFFICIALS OR SUPERVISORS, RELATING TO COLLECTIVE
BARGAINING; AND
SECTION 7114(B)(4) OF THE STATUTE PROVIDES THAT NTEU HAS RIGHT TO
INFORMATION SOLELY WITHIN IRS' POSSESSION WHICH IS NECESSARY AND
RELEVANT TO THE UNION'S REPRESENTATIONAL RESPONSIBILITIES, INCLUDING
INFORMATION NECESSARY TO PROCESS A PENDING APPEAL OR REPLY. SUCH A RIGHT
INCLUDES INFORMATION NECESSARY TO DETERMINE WHETHER OR NOT NTEU WILL
TAKE ANY SUCH ACTION. CF. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA, 8 FLRA
547 (1982) AND DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, 4 FLRA
NO. 82 (1980).
IN THE INSTANT CASE THE RECORD ESTABLISH THAT NTEU SPECIFICALLY
REQUESTED THE DOCUMENTS PURSUANT TO THE SECTION 7114(B)(4) OF THE
STATUTE AND THAT THE DOCUMENTS WERE NECESSARY AND RELEVANT IN ORDER FOR
NTEU TO DECIDE WHAT ACTION TO TAKE WITH RESPECT TO IRS' TREATMENT OF
BARCUS. ACCORDINGLY, NTEU WAS ENTITLED PURSUANT TO SECTION 7114(B)(4) OF
THE STATUTE TO THE REQUESTED DOCUMENTS. SEE BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, NATIONAL OFFICE AND WESTERN REGION, SUPRA; DEPARTMENT OF
THE NAVY, PORTSMOUTH NAVAL SHIPYARD, SUPRA AND VETERANS ADMINISTRATION
REGIONAL OFFICE, DENVER, COLORADO, 7 FLRA 633 (1982). IRS URGES THAT
SOMEHOW, BECAUSE NTEU DIDN'T STATE PRECISELY WHY IT WANTED THE
INFORMATION, THE UNION LOST ITS STATUTORY RIGHT TO THE DOCUMENTS. THIS
POSITION IS REJECTED. THE STATUTE NOWHERE REQUIRES THE UNION TO STATE
PRECISELY WHY IT WANTS THE REQUESTED INFORMATION; RATHER, IT SETS FORTH
REQUIREMENTS WHICH, IF MET, ENTITLES THE UNION TO THE INFORMATION.
FURTHER NTEU SPECIFICALLY REFERRED TO THAT SECTION OF STATUTE PURSUANT
TO WHICH IT WAS REQUESTING THE DOCUMENTS AND IRS NEVER INQUIRED AS TO
WHY NTEU WANTED THE INFORMATION.
THUS, IRS FAILED TO MEET ITS OBLIGATIONS UNDER SECTION 7114(B)(4) OF
THE STATUTE WHEN IT REFUSED TO GIVE NTEU THE REQUESTED DOCUMENTS
PURSUANT TO SECTION 7114(B)(4) OF THE STATUTE AND INSISTED THAT THE
REQUESTED INFORMATION BE FURNISHED PURSUANT TO THE FREEDOM OF
INFORMATION ACT. /7/ ACCORDINGLY, I CONCLUDE THAT RESPONDENT'S FAILURE
TO FURNISH THE REQUESTED INFORMATION VIOLATED SECTION 7116(A)(1), (5),
AND (8) OF THE STATUTE. CF. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA, SUPRA AND
VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO, SUPRA.
THE RECORD DOES NOT ESTABLISH WHETHER IRS USUALLY CHARGED NTEU FOR
COPIES OF DOCUMENTS PROVIDED PURSUANT TO SECTION 7114 OF THE STATUTE.
TO THE EXTENT THE $130 CHARGED IN THE INSTANT CASE FOR THE DOCUMENTS
PROVIDED, EXCEEDS THE AMOUNT USUALLY CHARGED FOR DOCUMENTS PROVIDED
UNDER SECTION 7114 OF THE STATUTE IRS SHOULD BE REQUIRED TO REFUND THAT
AMOUNT.
IN VIEW OF THE FOREGOING I RECOMMEND THAT THE AUTHORITY ADOPT THE
FOLLOWING ORDER:
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 THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE AND INTERNAL REVENUE SERVICE, INDIANAPOLIS DISTRICT, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING OR FAILING TO FURNISH, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES UNION,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, ALL
INFORMATION RELEVANT TO THE
PROCESSING OF AN APPEAL, WHICH INFORMATION IS NECESSARY TO ENABLE THE
NATIONAL TREASURY
EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE
ITS OBLIGATION AS THE
EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF ALL EMPLOYEES
IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(B) CHARGING ANY AMOUNT IN EXCESS OF THE AMOUNT USUALLY CHARGED, IF
ANY, FOR THE SUPPLYING
OF DOCUMENTS TO NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF
OUR EMPLOYEES, WHEN SUCH DOCUMENTS ARE PROVIDED PURSUANT TO SECTION
7114 OF THE STATUTE.
(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) UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, ALL INFORMATION RELEVANT
TO THE PROCESSING OF AN
APPEAL, WHICH INFORMATION IS NECESSARY TO ENABLE THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS OBLIGATION AS THE
EXCLUSIVE REPRESENTATIVE TO
REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT. /8/
(B) REFUND ANY MONIES CHARGED IN EXCESS OF THE AMOUNT USUALLY
CHARGED, IF ANY, FOR THE
SUPPLYING OF DOCUMENTS TO NATIONAL TREASURY EMPLOYEES UNION, OR ANY
OTHER EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, WHEN SUCH DOCUMENTS WERE PROVIDED
PURSUANT TO SECTION 7114 OF
THE STATUTE.
(C) POST AT ITS FACILITIES OF THE DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE AND
INTERNAL REVENUE SERVICE, INDIANAPOLIS DISTRICT, LOCATED IN
INDIANAPOLIS, INDIANA AND
LAFAYETTE, INDIANA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY
A RESPONSIBLE OFFICIAL AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE RESPONSIBLE OFFICIAL
SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION V, 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 ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-985 BE AND IT
HEREBY IS DISMISSED.
/1/ THE EXPIRATION OF THE STATUTE OF LIMITATIONS PREVENTS THE
ASSESSMENT OF TAX AND IS CONSIDERED A SERIOUS MATTER WITHIN IRS. BOTH
THE REVENUE AGENT AND THE GROUP MANAGER ARE HELD RESPONSIBLE FOR SUCH AN
OCCURRENCE AND ARE LIABLE TO BE DISCIPLINED.
/2/ THERE IS SOME DISPUTE HOW LONG IT TOOK HUNTER TO PREPARE THE CASE
EVALUATION. BARCUS CONTENDS IT TOOK HUNTER UP TO 60 DAYS, HUNTER
CONTENDS HE NORMALLY COMPLETED THEM IN A DAY OR TWO, NO LONGER THAN A
WEEK. IN ANY EVENT THE RECORD DOES NOT ESTABLISH THAT HUNTER'S
EVALUATION OF BARCUS' CASES TOOK ANY LONGER THAN HUNTER'S EVALUATIONS OF
THE WORK OF THE OTHER EMPLOYEES.
/3/ THIS APPARENTLY WAS SOMEWHAT RELATED TO CASE OUTPUT. HUNTER
REVIEWED A GREATER PERCENTAGE OF THE CASES OF EMPLOYEES WHO PUT OUT
FEWER CASES AND A GREATER PERCENTAGE OF THE CASES OF THOSE EMPLOYEES
WHOSE WORK HE FOUND DEFICIENT.
/4/ BARCUS CONTACTED FRIEDMAN AND ADVISED HIM ABOUT HUNTER'S VIEW
CONCERNING BREAKS. FRIEDMAN IN TURN CONTACTED IRS LABOR-MANAGEMENT
SPECIALIST VICKERS CONCERNING HUNTER'S VIEW ABOUT BREAKS. THERE IS NO
DIRECT EVIDENCE THAT VICKERS CONTACTED HUNTER.
/5/ HUNTER INDICATED HE REVIEWED APPROXIMATELY THE SAME NUMBER OF
CASES FOR EACH EMPLOYEE, BUT THAT BARCUS AND A FEW OTHERS PRODUCED
SOMEWHAT FEWER CASES THAN OTHER EMPLOYEES.
/7/ THE RECORD DOES NOT ESTABLISH WHETHER THE SANITIZED INFORMATION
FURNISHED UNDER THE FREEDOM OF INFORMATION ACT WAS INSUFFICIENT.
ACCORDINGLY, I MAKE NO FINDING WITH RESPECT TO THE SUFFICIENCY OF THE
INFORMATION SUPPLIED.
/8/ AS NOTED IN THE JUDGE'S DECISION AND ORDER, THE RECORD REFLECTS
THAT THE INFORMATION REQUESTED WAS FURNISHED PURSUANT TO A REQUEST UNDER
THE FREEDOM OF INFORMATION ACT, AND THE ADEQUACY THEREOF IS NOT AT ISSUE
HEREIN. THEREFORE, THE AUTHORITY DEEMS IT UNNECESSARY TO ORDER THE
RESPONDENT TO PRODUCE THE SPECIFIC MATERIAL.
JOHN FREEMAN, ESQ.
JAMES E. KAGY, ESQ.
FOR RESPONDENT
JOSEPH V. KAPLAN, ESQ.
FOR CHARGING PARTY
CLAIRE MORRISON, ESQ.
FOR GENERAL COUNSEL, FLRA
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE OR FAIL TO FURNISH, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, ALL INFORMATION RELEVANT TO THE PROCESSING OF AN APPEAL,
WHICH INFORMATION IS NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS
OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
WE WILL NOT CHARGE ANY AMOUNT IN EXCESS OF THE AMOUNT USUALLY
CHARGED, IF ANY, FOR THE SUPPLYING OF DOCUMENTS TO NATIONAL TREASURY
EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES,
WHEN SUCH DOCUMENTS ARE PROVIDED PURSUANT TO SECTION 7114 OF THE
STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY
EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OR OUR EMPLOYEES,
ALL INFORMATION RELEVANT TO THE PROCESSING OF AN APPEAL, WHICH
INFORMATION IS NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS
OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
WE WILL REFUND ANY MONIES CHARGED IN EXCESS OF THE AMOUNT USUALLY
CHARGED, IF ANY, FOR THE SUPPLYING OF DOCUMENTS TO NATIONAL TREASURY
EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES,
WHEN SUCH DOCUMENTS WERE PROVIDED PURSUANT TO SECTION 7114 OF THE
STATUTE.
. . . (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
MATERIALS.
IF EMPLOYEES HAVE ANY QUESTION 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 5,
WHOSE ADDRESS IS: 175 WEST JACKSON BOULEVARD, SUITE A-1359, CHICAGO,
ILLINOIS 60604, AND WHOSE TELEPHONE NUMBER IS (312) 886-3468. 770801
0000440
14 FLRA-ALJ; CASE NOS. 9-CA-931 9-CA-1100 APRIL 14, 1982
CALIFORNIA NATIONAL GUARD, SACRAMENTO, CALIFORNIA, RESPONDENT, AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CHARGING PARTY
BEFORE: WILLIAM NAIMARK, ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON MAY 28, 1981
IN CASE NO. 9-CA-931, AND AN AMENDED COMPLAINT AND NOTICE OF HEARING
ISSUED ON JULY 31, 1981 IN CASE NO. 9-CA-1100, BY THE REGIONAL DIRECTOR
FOR THE FEDERAL LABOR RELATIONS AUTHORITY, SAN FRANCISCO, CALIFORNIA
REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON AUGUST 10, 1981 AT
SAN FRANCISCO, CALIFORNIA. /1/
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE STATUTE (HEREIN CALLED THE STATUTE OR ACT). IT WAS
BASED ON A CHARGE FILED IN CASE NO. 9-CA-931 BY NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-125, AND UPON A CHARGE FILED IN CASE NO.
9-CA-1100 BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (HEREIN CALLED
NAGE OR THE UNION), AGAINST THE NATIONAL GUARD, STATE OF CALIFORNIA
(HEREIN CALLED RESPONDENT). /2/
THE COMPLAINT IN CASE NO. 9-CA-931 ALLEGED, IN SUBSTANCE, THAT SINCE
ON OR ABOUT FEBRUARY 8, 1981, RESPONDENT HAS FAILED AND REFUSED TO GRANT
TRAVEL AND PER DIEM EXPENSES TO AN "EMPLOYER /3/ -UNION REPRESENTATIVE"
CONCERNING HIS PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS WITH
THE RESPONDENT IN VIOLATION OF SECTIONS 7116(A)(1) AND (8) OF THE ACT.
THE AMENDED COMPLAINT IN CASE NO. 9-CA-1100 ALLEGED, IN SUBSTANCE, THAT
SINCE ON OR ABOUT JUNE 11, 1981 RESPONDENT HAS FAILED AND REFUSED TO
GRANT TRAVEL AND PER DIEM EXPENSES TO UNION REPRESENTATIVES JOSEPH
PASQUAL, THOMAS GENTILE, HAROLD CARPENTER, AND ROGER GODT CONCERNING
THEIR PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS WITH
RESPONDENT IN VIOLATION OF SECTIONS 7116(A)(1) AND (8) OF THE ACT.
IN ITS ANSWER, DATED JULY 21, 1981, TO THE COMPLAINT IN CASE NO.
9-CA-931, RESPONDENT DENIED THE ESSENTIAL ALLEGATION OF THE COMPLAINT
AND THE COMMISSION OF ANY UNFAIR LABOR PRACTICES. IN ITS ANSWER, /4/
DATED AUGUST 17, 1981, TO THE AMENDED COMPLAINT IN CASE NO. 9-CA-1100,
RESPONDENT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICE; AND IT
ALLEGED THAT NO REQUIREMENT EXISTED UNDER THE STATUTE TO PAY TRAVEL OR
PER DIEM EXPENSES TO UNION OFFICIALS INVOLVED IN COLLECTIVE BARGAINING
NEGOTIATIONS. SAID ANSWER SET FORTH, AS AN AFFIRMATIVE DEFENSE, THAT
PUBLIC FUNDS APPROPRIATED TO RESPONDENT ARE DESIGNATED BY CONGRESS AND
THE CALIFORNIA LEGISLATURE FOR SPECIFIC PURPOSES REGARDING DEFENSE AND
PREPAREDNESS; THAT SPENDING MONIES FOR PURPOSES OUTSIDE CATEGORIES
AUTHORIZED BY LEGISLATURES WOULD VIOLATE FEDERAL AND STATE
CONSTITUTIONS.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DUTY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. THE CALIFORNIA NATIONAL GUARD (RESPONDENT HEREIN) IS A STATE
AGENCY WHICH ADMINISTERS THE FEDERAL TECHNICIAN PROGRAMS. PRIME
RESPONSIBILITY THEREFOR IS RESTED IN THE ADJUTANT GENERAL OF THE STATE,
ALTHOUGH THE TECHNICIANS IN THE CALIFORNIA NATIONAL GUARD ARE FEDERAL
EMPLOYEES.
2. AT ALL TIMES MATERIAL HEREIN THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (UNION HEREIN) HAS BEEN, AND STILL IS, THE
EXCLUSIVE BARGAINING REPRESENTATIVE IN EIGHT NATIONAL GUARD UNITS OF
TECHNICIANS THROUGHOUT THE STATE OF CALIFORNIA. IT REPRESENTS IN
APPROPRIATE UNITS THE EMPLOYEES WHO ARE INVOLVED IN THESE PROCEEDINGS.
3. FOR SOME TIME RESPONDENT HAS ESTABLISHED A TECHNICIANS PERSONNEL
MANUAL (TPM) WHICH PROVIDES GUIDANCE ON PERSONNEL MATTERS AFFECTING
TECHNICIANS. THE TPM SETS OUT PERSONNEL POLICIES, PRACTICES AND OTHER
MATTERS AFFECTING CONDITIONS OF EMPLOYMENT. IT DEALS WITH SUCH ITEMS AS
SICK LEAVE, ANNUAL LEAVE, AND GRIEVANCES OF THE TECHNICIANS.
4. PRIOR TO FEBRUARY 24, 1981 RESPONDENT REPUBLISHED THE TPM AS AN
UPDATED VERSION OF THE MANUAL. UPON REQUEST BY THE UNION, THE RESPONDENT
AGREED TO MEET WITH THE BARGAINING REPRESENTATION AND DISCUSS THE
PROVISIONS WITH A VIEW TOWARD CLARIFYING SOME OF THEM, OR POSSIBLY
MAKING NECESSARY CHANGES.
5. IN ORDER TO ESTABLISH GROUND RULES FOR NEGOTIATIONS CONCERNING THE
TPM, RESPONDENT AND THE UNION MET IN FRESNO, CALIFORNIA AT THE FRESNO
AIR NATIONAL GUARD BASE ON FEBRUARY 24, 1981. IN ADDITION TO SEVERAL
NON-EMPLOYEE INDIVIDUALS, THE UNION WAS REPRESENTED BY JOSEPH PASQUAL,
HAROLD CARPENTER, THOMAS GENTILE, RICHARD LLOYD AND DAVID KAISER-- ALL
UNIT EMPLOYEES REPRESENTING THE EIGHT LOCAL NATIONAL GUARD EMPLOYEES.
THE REPRESENTATIVES OF BOTH PARTIES MET ON THE AFORESAID DATE FOR ABOUT
TWO HOURS. GROUND RULES FOR THE FORTHCOMING NEGOTIATIONS REGARDING THE
TPM WERE AGREED UPON AND REDUCED TO WRITING IN A DOCUMENT ENTITLED
"NEGOTIATING SESSION GROUND RULES". /5/ IT INCLUDED SUCH TOPICS AS
NEGOTIATING SUBMISSION OF PROPOSALS, IMPASSE IN NEGOTIATIONS AND
MAINTENANCE OF RECORDS. THE AGREED UPON DATES FOR THE BARGAINING
SESSIONS REGARDING TPM WERE JUNE 9, 10, 11.
6. ALL OF THE UNION REPRESENTATIVES WHO WERE EMPLOYEES, WITH THE
EXCEPTION OF JOSEPH PASQUAL, RESIDED IN FRESNO AT THE TIME OF THE
MEETING ON FEBRUARY 24. PASQUAL, WHO WAS PRESIDENT OF LOCAL R12-125, /6/
NAGE, RESIDED IN SAN DIEGO, CALIFORNIA. HE DEPARTED FROM HOME ON
FEBRUARY 23 AND TRAVELLED APPROXIMATELY 400 MILES TO ATTEND THE MEETING.
PASQUAL RETURNED TO SAN DIEGO ON FEBRUARY 25 AFTER PARTICIPATING IN THE
"GROUND RULES" SESSION ON THE PREVIOUS DAY AS THE REPRESENTATIVE OF HIS
LOCAL UNION.
7. ALL OF THE EMPLOYEES WHO ATTENDED THE FEBRUARY 24 MEETING IN
FRESNO WERE GRANTED OFFICIAL TIME BY RESPONDENT. ALTHOUGH HE REQUESTED
TRAVEL EXPENSES AND PER DIEM FOR HIS TRIP FROM SAN DIEGO TO FRESNO,
PASQUAL WAS DENIED SAID REQUEST, AND RESPONDENT HAS REFUSED TO PAY
TRAVEL AND PER DIEM EXPENSES TO SAID UNION REPRESENTATIVE. THE DENIAL
WAS BASED ON THE CONTENTION THAT PASQUAL WAS NOT PERFORMING OFFICIAL
DUTIES BY ATTENDING THE MEETING; THAT THE EMPLOYEE, AS A UNION
REPRESENTATIVE, WAS PERFORMING UNION BUSINESS FOR WHICH HE WAS ACCORDED
OFFICIAL TIME.
8. ON JUNE 9, AS SCHEDULED, THE PARTIES MET AT SAN LUIS OBISPO,
CALIFORNIA TO NEGOTIATE THE REPUBLISHED TPM AND DISCUSS ANY PROPOSED
CHANGES THERETO. UNDER THE GROUND RULES THE UNION TEAM WAS LIMITED TO
GIVE MEMBERS, OF WHICH NOT MORE THAN FOUR TECHNICIANS WERE PERMITTED TO
ATTEND THE MEETING. IN ACCORDANCE THEREWITH, THE UNION APPOINTED AS
REPRESENTATIVES THE FOLLOWING FOUR TECHNICIANS: /7/ JOSEPH PASQUAL,
HERETOFORE MENTIONED; HAROLD CARPENTER, PRESIDENT OF LOCAL R12-105;
THOMAS GENTILE, PRESIDENT OF LOCAL R12-132; AND ROGER GODT, PRESIDENT
OF LOCAL R12-150.
9. RECORD FACTS SHOW THAT THE AFORESAID FOUR TECHNICIANS TRAVELED ON
JUNE 8 IN PRIVATE CARS FROM THEIR HOMES TO SAN LUIS OBISPO IN ORDER TO
ATTEND THE NEGOTIATIONS SCHEDULED TO COMMERCE ON JUNE 9. PASQUAL DROVE
ABOUT 400 MILES FROM SAN DIEGO TO SAN LUIS OBISPO; CARPENTER AND
GENTILE EACH TRAVELED ABOUT 180 MILES FROM FRESNO TO SAN LUIS OBISPO;
AND ROGER GODT DROVE ABOUT 200 MILES FROM HAYWARD TO SAN LUIS OBISPO.
10. MANAGEMENT WAS REPRESENTED BY FIVE OFFICERS, AND THIS TEAM MET AT
9:00 A.M. ON JUNE 9 WITH THE FIVE UNION REPRESENTATIVES TO DISCUSS THE
TPM. THE MEETING ON THE FIRST DAY LASTED UNTIL 2:00 P.M. THE PARTIES
RESUMED NEGOTIATIONS ON JUNE 10 AT 9:00 A.M. AND CONTINUED UNTIL 4:00
P.M. NEGOTIATIONS /8/ WERE COMPLETED ON JUNE 11, AND THE REPRESENTATIVES
MET FROM 8:00 A.M. UNTIL 1:00 P.M.
11. PRIOR TO THE TPM NEGOTIATIONS ON JUNE 9 ALL FOUR TECHNICIANS
REQUESTED COMPENSATION FOR TRAVEL AS WELL AS PER DIEM EXPENSES, FOR THE
TRIP FROM THEIR HOMES TO AND FROM SAN LUIS OBISPO TO ATTEND THE
BARGAINING SESSIONS. RESPONDENT REFUSED THOSE REQUESTS BUT DID GRANT THE
INDIVIDUALS OFFICIAL TIME THEREFOR. AT THE CLOSE OF THE NEGOTIATIONS
LIEUTENANT COLONEL MILLER, MANAGEMENT'S REPRESENTATIVE, DECLARED THAT
RESPONDENT WOULDN'T PAY SUCH TRAVEL AND PER DIEM EXPENSES TO THE FOUR
TECHNICIANS WHO APPEARED AS UNION REPRESENTATIVES.
CONCLUSIONS
THE PRINCIPAL ISSUE FOR DETERMINATION HEREIN IS WHETHER, UNDER
SECTION 7131(A) OF THE ACT, EMPLOYEES ARE ENTITLED TO TRAVEL AND PER
DIEM EXPENSES WHILE ACTING AS UNION REPRESENTATIVES ON OFFICIAL TIME
DURING BARGAINING NEGOTIATIONS. GENERAL COUNSEL ADVERTS TO THE
AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA 265 (1979), WHEREIN IT
INTERPRETED SECTION 7131(A) OF THE STATUTE AS REQUIRING PAYMENT FOR
EXPENSES SO INCURRED. FURTHER, CASES DECIDED BY THE AUTHORITY, AS WELL
AS NUMEROUS DECISIONS BY VARIOUS ADMINISTRATIVE LAW JUDGES, ARE CITED IN
SUPPORT OF THE ALLEGATIONS IN THE CASE AT BAR.
RESPONDENT TAKES THE POSITION THAT NO BASIS EXISTS FOR CONSTRUING
SECTION 7131(A) AS MANDATING THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES
TO UNION AGENTS UNDER THESE CIRCUMSTANCES. IT CONTENDS THAT THE
AUTHORITY'S INTERPRETATION AND GUIDANCE, HERETOFORE MENTIONED, IS NOT A
VALID REGULATION SINCE IT WAS NOT ISSUED PURSUANT TO THE ADMINISTRATIVE
PROCEDURE ACT; AND THAT THE AUTHORITY, IN ANNOUNCING THE RULE, EXCEEDED
ITS AUTHORITY SINCE ONLY THE ADMINISTRATOR OF GENERAL SERVICES HAS THE
RIGHT TO DETERMINE WHICH EMPLOYEES MAY RECEIVE SUCH MONIES. RESPONDENT
ALSO INSISTS THAT THE AUTHORITY'S DETERMINATION IN THIS REGARD RUNS
COUNTER TO DECLARATIONS BY THE COMPTROLLER GENERAL, 44 COMP.GEN. 617
(1965), AS WELL AS STANDARDS SET BY THE CIVIL SERVICE COMMISSION. IT
ARGUES THAT NO BASIS EXISTS UNDER TITLE VII FOR THE AUTHORITY'S
DECISIONS ALLOWING SUCH PAYMENTS. THE RESPONDENT FURTHER INSISTS THE
AUTHORITY THUS INTERFERES WITH THE AGENCY'S PREROGATIVE TO DETERMINE ITS
OWN BUDGET UNDER SECTION 7106 OF THE ACT, SINCE THE AGENCY WOULD BE
REQUIRED TO SET ASIDE FUNDS FOR THIS PURPOSE.
WHILE THE ARGUMENTS BY RESPONDENT ARE COGENTLY ARTICULATED, THE ISSUE
AT BAR HAS BEEN SEEMINGLY RESOLVED BY RECENT DECISIONS. THUS, IN BUREAU
OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE
TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40 IT WAS HELD THAT THE
UNION REPRESENTATIVE WAS ENTITLED TO BE PAID TRAVEL AND PER DIEM
EXPENSES INCURRED, AS WELL AS ALLOWED OFFICIAL TIME, FOR HAVING
PARTICIPATED IN NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE UNION AND THE THE AGENCY. IN AFFIRMING THE FEDERAL LABOR
RELATIONS AUTHORITY'S DECISION, THE UNITED STATES COURT OF APPEALS, 9TH
CIRCUIT, (NO. 80-7673, 81-7021, FILED MARCH 22, 1982) CONCLUDED THAT THE
AUTHORITY'S INTERPRETATION OF SECTION 7131(A) OF THE ACT WAS REASONABLE
AND SUPPORTABLE EVEN THOUGH IT MIGHT NOT HAVE THE FORCE OF LAW. THE
COURT CONCLUDED THAT THE STATUTE'S REFERENCE TO NEGOTIATIONS OF A
COLLECTIVE BARGAINING AGREEMENT ENCOMPASSES ALL SITUATIONS IN WHICH
AGENCY AND UNION REPRESENTATIVE MEET TO NEGOTIATE CONDITIONS OF
EMPLOYMENT. FURTHER, IT SUSTAINED THE AUTHORITY'S VIEW THAT THE UNION
REPRESENTATIVES, WHO ARE ENGAGED IN SUCH NEGOTIATIONS, ARE ENTITLED
UNDER 7131(A) TO BE PAID TRAVEL AND PER DIEM EXPENSES INCURRED IN
CONNECTION THEREWITH. THE COURT COMMENTED THAT SUCH PAYMENT RESULTED IN
EQUATING THE POSITION OF UNION REPRESENTATIVES WITH THAT OF MANAGEMENT
REPRESENTATIVES WHO ARE UNIFORMLY PAID TRAVEL AND PER DIEM EXPENSES.
IN THE CASE AT BAR REIMBURSEMENT IS SOUGHT FOR TRAVEL AND PER DIEM
EXPENSES INCURRED BY THE UNION PRESIDENT, JOSEPH A. PASQUAL, FOR
ATTENDING THE NEGOTIATING SESSION ON FEBRUARY 24, 1981 IN FRESNO,
CALIFORNIA, AS WELL AS THE SAID EXPENSES INCURRED BY HIM AND THE OTHER
UNION REPRESENTATIVES, HAROLD CARPENTER, THOMAS GENTILE, AND ROGER GODT
FOR ATTENDING THE NEGOTIATIONS ON JUNE 9, 10, AND 11, 1981, AT SAN LUIS
OBISPO, CALIFORNIA. WHILE THE MEETING ON FEBRUARY 24 AT FRESNO INVOLVED
NEGOTIATIONS REGARDING THE GROUND RULES FOR THE FORTHCOMING BARGAINING
SESSIONS IN JUNE, I CONCLUDE THAT SUCH NEGOTIATIONS ARE ENCOMPASSED
WITHIN THE LANGUAGE OF SECTION 7131(A) REGARDING COLLECTIVE BARGAINING
NEGOTIATIONS. DISCUSSIONS REGARDING RULES WHICH WILL OPERATE AS A
FRAMEWORK FOR NEGOTIATIONS ARE, IN MY OPINION, PART AND PARCEL OF THE
COLLECTIVE BARGAINING PROCESS. THUS, I CONCLUDE THAT, IN ADDITION TO
REIMBURSING THE UNION AGENTS FOR TRAVEL EXPENSES AND PER DIEM IN
CONNECTION WITH THE BARGAINING SESSIONS HELD BETWEEN JUNE 9-11, 1981,
RESPONDENT SHOULD REIMBURSE UNION PRESIDENT PASQUAL FOR TRAVEL AND PER
DIEM RELATED TO THE MEETING HELD ON FEBRUARY 24, 1981.
SINCE IT IS NOW ESTABLISHED /9/ IN THE PUBLIC SECTOR THAT, UNDER
SECTION 7131(A) OF THE ACT, EMPLOYEES WHO ACT AS UNION NEGOTIATORS ARE
ENTITLED TO BE PAID FOR TRAVEL AND PER DIEM EXPENSES WHILE ENGAGED IN
COLLECTIVE BARGAINING, I CONCLUDE RESPONDENT HAS RUN AFOUL OF THE
STATUTE BY REFUSING TO MAKE SUCH PAYMENTS. ITS FAILURE IN THIS REGARD
CONSTITUTES A VIOLATION OF SECTIONS 7116(A)(1) AND (8) OF THE ACT.
HAVING FOUND THAT RESPONDENT COMMITTED SUCH VIOLATIONS, I RECOMMEND
THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND
REGULATIONS IT IS HEREBY ORDERED THAT THE CALIFORNIA NATIONAL GUARD,
SACRAMENTO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING, AS REQUIRED BY SECTION 7131(A) OF THE
STATUTE TO PROVIDE PAYMENT
OF PROPERLY DOCUMENTED TRAVEL AND PER DIEM EXPENSES INCURRED BY
JOSEPH A. PASQUAL, HAROLD
CARPENTER, THOMAS GENTILE, AND ROGER GODT, OR ANY OTHER OF ITS
EMPLOYEES, AS A RESULT OF THEIR
PARTICIPATION, ON OFFICIAL TIME, AS DULY DESIGNATED REPRESENTATIVES
OF NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF THE
BARGAINING UNIT EMPLOYEES,
IN SCHEDULED UNION-AGENCY NEGOTIATING SESSIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE PAYMENT TO JOSEPH A. PASQUAL IN REIMBURSEMENT OF THE
PROPERLY DOCUMENTED CLAIMS
HE HAS SUBMITTED FOR PAYMENT OF HIS TRAVEL AND PER DIEM EXPENSES HE
HAS INCURRED AS A RESULT
OF HIS PARTICIPATION, ON OFFICIAL TIME, AS A DULY DESIGNATED
REPRESENTATIVE OF THE ABOVE
UNION, IN UNION-AGENCY NEGOTIATING SESSIONS ON FEBRUARY 24, 1981 AT
FRESNO, CALIFORNIA, AND
BETWEEN JUNE 9-11, 1981 AT SAN LUIS OBISPO, CALIFORNIA.
(B) PROVIDE PAYMENT TO HAROLD CARPENTER, THOMAS GENTILE, AND ROGER
GODT IN REIMBURSEMENT OF
THE PROPERLY DOCUMENTED CLAIMS THEY HAVE SUBMITTED FOR PAYMENT OF
THEIR TRAVEL AND PER DIEM
EXPENSES THEY HAVE INCURRED AS A RESULT OF THEIR PARTICIPATION, ON
OFFICIAL TIME, AS DULY
DESIGNATED REPRESENTATIVES OF THE ABOVE UNION, IN UNION-AGENCY
NEGOTIATING SESSIONS BETWEEN
JUNE 9-11, 1981 AT SAN LUIS OBISPO, CALIFORNIA.
(C) POST AT ITS FACILITIES AT SACRAMENTO, CALIFORNIA, COPIES OF THE
ATTACHED NOTICE ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE COMMANDER OF THE CALIFORNIA NATIONAL
GUARD, SACRAMENTO,
CALIFORNIA, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO
INSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFERRED OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS AUTHORITY, IN
WRITING, WITHIN 30 DAYS
FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
/1/ CASE NOS. 9-CA-931 AND 9-CA-1100 WERE CONSOLIDATED BY AN ORDER
ISSUED ON AUGUST 3, 1981 BY THE SAID REGIONAL DIRECTOR.
/2/ ALTHOUGH IT WAS REFERRED TO AS NATIONAL GUARD BUREAU, NATIONAL
GUARD STATE OF CALIFORNIA, SACRAMENTO, CALIFORNIA IN THE COMPLAINTS IN
BOTH CASES, RESPONDENT'S CORRECT TITLE, AS DECLARED IN THE ANSWER IN
9-CA-931, IS CALIFORNIA NATIONAL GUARD, SACRAMENTO, CALIFORNIA.
/3/ AT THE HEARING THE TERM "EMPLOYER" WAS AMENDED TO READ
"EMPLOYEE".
/4/ RESPONDENT SUBMITTED ITS ANSWER TO THE AMENDED COMPLAINT IN CASE
NO. 9-CA-1100 AT THE HEARING. THE GENERAL COUNSEL DID NOT OBJECT TO THE
SUBMISSION AND THE DOCUMENT WAS ACCEPTED AND RECEIVED IN EVIDENCE AS
RESPONDENT'S EXHIBIT 1.
/5/ GENERAL COUNSEL'S EXHIBIT 2.
/6/ THIS LOCAL COMPRISED ALL TECHNICIANS IN THE CALIFORNIA NATIONAL
GUARD NOT COVERED BY OTHER LOCAL UNIONS.
/7/ FRANK BENITES, NAGE REPRESENTATIVE, ALSO ATTENDED AS UNION
REPRESENTATIVE.
/8/ IT IS CONCEDED BY RESPONDENT, AS TESTIFIED BY LT. COLONEL
MAHONEY, THAT COLLECTIVE BARGAINING DID OCCUR DURING THE JUNE MEETINGS
WITH RESPECT TO THE TPM.
/9/ THE AUTHORITY HAS ADHERED TO ITS VIEW THAT TRAVEL AND PER DIEM
EXPENSES ARE PROPERLY DUE, UNDER SECTION 7131 OF THE ACT, WHEN EMPLOYEES
REPRESENT THE EXCLUSIVE REPRESENTATIVE IN COLLECTIVE BARGAINING
NEGOTIATIONS. SEE U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION
ADMINISTRATION AGRICULTURAL RESEARCH, NORTH CENTRAL REGION 6 FLRA NO.
45.
STUART BRODY, ESQ.
FOR THE RESPONDENT
MARY DRYOVAGE, ESQ.
FOR THE GENERAL COUNSEL
FRANK F. BENITES
FOR THE CHARGING PARTY
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 FAIL OR REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES INCURRED BY JOSEPH A. PASQUAL, HAROLD
CARPENTER, THOMAS GENTILE, AND ROGER GODT, OR ANY OTHER OF OUR
EMPLOYEES, AS A RESULT OF THEIR PARTICIPATION, ON OFFICIAL TIME, AS DULY
DESIGNATED REPRESENTATIVES OF NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF THE BARGAINING UNIT
EMPLOYEES, IN SCHEDULED UNION-AGENCY NEGOTIATING SESSIONS.
WE WILL NOTE IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL PROVIDE PAYMENT TO JOSEPH A. PASQUAL IN REIMBURSEMENT OF THE
PROPERLY DOCUMENTED CLAIMS HE HAS SUBMITTED TO US FOR PAYMENT OF HIS
TRAVEL AND PER DIEM EXPENSES HE HAS INCURRED AS A RESULT OF HIS
PARTICIPATION, ON OFFICIAL TIME, AS A DULY DESIGNATED REPRESENTATIVE OF
THE ABOVE UNION, IN UNION-AGENCY NEGOTIATING SESSIONS ON FEBRUARY 24,
1981 AT FRESNO, CALIFORNIA, AND BETWEEN JUNE 9-11, 1981 AT SAN LUIS
OBISPO, CALIFORNIA.
WE WILL PROVIDE PAYMENT TO HAROLD CARPENTER, THOMAS GENTILE, AND
ROGER GODT IN REIMBURSEMENT OF THE PROPERLY DOCUMENTED CLAIMS EACH HAS
SUBMITTED TO US FOR PAYMENT OF HIS TRAVEL AND PER DIEM EXPENSES HE HAS
INCURRED AS A RESULT OF HIS PARTICIPATION, ON OFFICIAL TIME, AS A DULY
DESIGNATED REPRESENTATIVE OF THE ABOVE UNION, IN UNION-AGENCY
NEGOTIATING SESSIONS ON FEBRUARY 24, 1981 AT FRESNO, CALIFORNIA, AND
BETWEEN JUNE 9-11, 1981 AT SAN LUIS OBISPO, CALIFORNIA.
. . . (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 9,
WHOSE ADDRESS IS: 530 BUSH STREET, SUITE 542, SAN FRANCISCO,
CALIFORNIA, 94108, AND WHOSE TELEPHONE NUMBER IS: (415) 556-8105.
770801 0000430
14 FLRA-ALJ; CASE NO. 7-CA-726 APRIL 27, 1982
VETERANS ADMINISTRATION MEDICAL CENTER, JOHN COCHRAN DIVISION, ST.
LOUIS, MISSOURI, RESPONDENT, AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 96, CHARGING PARTY
BEFORE: JOHN H. FENTON, CHIEF 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 UNITED STATES CODE, 5
U.S.C. 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
FED. REG. VOLUME 45, NO. 12, JANUARY 19, 1980, 5 C.F.R., CHAPTER XIV,
PART 2411, ET SEQ.
A CHARGE WAS FILED BY LOCAL 96, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, ON AUGUST 26, 1980, AND AN AMENDED CHARGE WAS FILED
ON OCTOBER 24, 1980. A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON
NOVEMBER 21, 1980 BY THE REGIONAL DIRECTOR, KANSAS CITY REGION, FEDERAL
LABOR RELATIONS AUTHORITY, KANSAS CITY, MISSOURI. THE COMPLAINT ALLEGES
THREE SEPARATE AND DISTINCT INSTANCES IN WHICH STATEMENTS MADE BY
SUPERVISORS WERE VIOLATIVE OF SECTION 7116(A)(1).
A FORMAL HEARING WAS HELD IN ST. LOUIS, MISSOURI ON FEBRUARY 6, 1981.
ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE, TO MAKE ORAL ARGUMENT AND TO FILE BRIEFS. UPON THE
ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDED
ORDER:
THE UNION REPRESENTS A UNIT OF NONPROFESSIONAL EMPLOYEES AT THIS
FACILITY OF OVER 2000 EMPLOYEES. A COLLECTIVE BARGAINING RELATIONSHIP
HAS EXISTED SINCE AT LEAST 1973, AND THERE IS NO SUGGESTION, APART FROM
THE UNFAIR LABOR PRACTICES ALLEGED HEREIN, THAT THIS LONG RELATIONSHIP
HAS BEEN OTHER THAN AMICABLE.
ALL THREE ALLEGED VIOLATIONS HAVE THEIR SOURCE IN A DISPUTE BETWEEN
JOHNNIE MAE HINTON, A HOUSEKEEPING AIDE AND ALTHEA MCKENZIE, SUPERVISOR
OF THE OPERATING ROOM, OVER THE RESPONSIBILITY FOR DISPOSAL OF LINENS
USED IN SURGERY. MCKENZIE SUPERVISES THE NURSING STAFF, COMPOSED OF
REGISTERED NURSES (EXCLUDED FROM THE UNIT), LICENSED PRACTICAL NURSES
AND NURSING ASSISTANTS. SHE HAS NO SUPERVISORY AUTHORITY OVER HINTON,
WHO WORKS FOR BUILDING MANAGEMENT AND REPORTS DIRECTLY TO SHIRLEY HOGUE,
HOUSEKEEPING AIDE FOREMAN. THE LINENS COULD BE VERY HEAVY, AND HINTON, A
SLIGHT WOMAN, RESENTED THE FACT THAT MALE NURSING ASSISTANTS WERE NOT
PERMITTED TO HELP HER TOSS THE BAGS DOWN THE LAUNDRY CHUTE. MCKENZIE
WAS APPARENTLY ANXIOUS TO PROTECT HER TURF, PATIENT CARE, FROM THE
INROADS OF SUCH DISTRACTIONS, AND SO A "JURISDICTIONAL" DISPUTE
DEVELOPED. HINTON APPARENTLY FILED GRIEVANCES RELATED TO THE MATTER
(NONE OF WHICH IS IN EVIDENCE) DURING 1978, 1979, AND IN EARLY 1980. IN
THE LAST OF THESE, IT WOULD APPEAR, SHE SOUGHT EITHER TO COMPEL MCKENZIE
TO PROVIDE HELP WHEN NEEDED OR TO TRANSFER RESPONSIBILITY FOR CLEAN-UP
IN THE OPERATING ROOM (OR) TO THE NURSING STAFF.
IT IS CLEAR THAT THIS CONTROVERSY INTENSIFIED IN EARLY 1980, AGAIN
APPARENTLY BECAUSE OF STAFF SHORTAGES AND AN INCREASED DETERMINATION ON
MCKENZIE'S PART TO PREVENT THE ASSUMPTION OF HOUSEKEEPING DUTIES BY HER
SUBORDINATES FROM INTERFERING WITH PATIENT CARE. THE LONG AND UNRESOLVED
DISPUTE RESULTED IN BICKERING AND DISSENSION, AND FUELED, ACCORDING TO
THE GENERAL COUNSEL'S WITNESSES, A PERSONALITY CLASH BETWEEN HINTON AND
MCKENZIE.
LITTLE ELSE IS CLEAR WITH RESPECT TO THE EVIDENCE SURROUNDING THE
COMPLAINT'S FIRST ALLEGATION: THAT FROM FEBRUARY 27 TO MAY 30, 1980,
APPROXIMATELY TWICE A WEEK MCKENZIE TOLD HER SUBORDINATES THAT THE UNION
COULD NOT HELP HINTON, THAT IT WOULD NOT HELP HER BECAUSE SHE WAS A
TROUBLEMAKER AND THAT IT WAS NOT WORTH ANYTHING AND COULD NOT DO
ANYTHING FOR EMPLOYEES. THE OR NURSING STAFF CONSISTS OF ABOUT TEN
REGISTERED NURSES, FOUR LICENSED PRACTICE NURSES AND ELEVEN NURSING
ASSISTANTS. OF THESE TWENTY-FIVE POTENTIAL WITNESSES, TWO WERE CALLED BY
THE GENERAL COUNSEL AND ONE BY RESPONDENT. NEVER HAS THE UNDERSIGNED
ENCOUNTERED SUCH WIDELY DIVERGENT VIEWS OF WHAT HAPPENED.
THE GENERAL COUNSEL'S TWO WITNESSES WERE REGISTERED NURSES, CLAIMED
TO BE NEUTRAL OBSERVERS BECAUSE NOT IN THE UNIT, ALTHOUGH ONE HAD
RECEIVED A REPRIMAND FROM MCKENZIE AND THE OTHER SPOKE TO HER ANNOYANCE
THAT MCKENZIE CONTINUALLY INVOLVED THE STAFF IN WHAT SHE REGARDED AS
"SOMETHING PERSONAL BETWEEN MS. MCKENZIE AND MS. HINTON." THE
REPRIMANDED NURSE, WHO DESCRIBED THAT RELATIONSHIP AS A PERSONALITY
CLASH, TESTIFIED THAT EVERY DAY, FOR MANY MONTHS, MCKENZIE TOLD THE
ENTIRE NURSING STAFF AT THE MEETINGS HELD EVERY WEEKDAY MORNING THAT SHE
DID NOT UNDERSTAND WHY HINTON TOOK HER PROBLEM TO THE UNION, BECAUSE THE
UNION DID NOT HELP HER; THAT THE UNION CONSIDERED HINTON A TROUBLEMAKER
BECAUSE SHE WAS ALWAYS TAKING PROBLEMS TO IT; THAT THE UNION WAS "NOT
ABOUT ANYTHING;" AND THAT SHE DID NOT KNOW WHY THE UNION WOULD GO AROUND
SAYING IT HAD BROUGHT ABOUT TERMINATION OF THE PARKING FEE PROGRAM WHEN
IT HAD NOT DONE ANYTHING ABOUT IT. THE OTHER NURSE TESTIFIED THAT AT
LEAST SEVERAL TIMES A WEEK, FROM DECEMBER, 1979 UNTIL MAY OR JUNE,
MCKENZIE TOLD THOSE AT THE DAILY STAFF MEETINGS THAT HINTON HAD FILED A
GRIEVANCE AGAINST HER; THAT SHE HAD GONE TO THE UNION AND THE UNION
WASN'T GOING TO HELP HER OR COULD NOT HELP HER BECAUSE IT DID NOT HAVE
ANY POWER; AND THAT MCKENZIE HAD NOT DONE ANYTHING WRONG AND THEREFORE
NOTHING COULD BE DONE TO HER. AS AN EXAMPLE OF THAT POWERLESSNESS, SHE
SAID, MCKENZIE SAID THAT THE RUMORS THAT THE UNION DESERVED CREDIT FOR
ENDING THE PARKING FEES WERE UNTRUE.
HEAD NURSE SANDRA SIDES TESTIFIED THAT THE STAFF COMPLAINED ABOUT
HINTON AND THE LINEN ISSUE AND THAT MCKENZIE TOLD THEM THAT THEY WOULD
HAVE TO LIVE WITH IT, THAT SHE COMMENTED THAT HINTON HAD GONE TO THE
UNION ABOUT THE MATTER BUT SAID NOTHING DEROGATORY ABOUT THE UNION.
LICENSED PRACTICAL NURSE LOUIS LOPER, A UNION MEMBER, TESTIFIED THAT THE
LINEN ISSUE WAS DISCUSSED AT MEETINGS BUT THAT MCKENZIE NEVER SAID THAT
THE UNION COULD NOT OR WOULD NOT HELP ANY EMPLOYEES, OR ANYTHING ELSE
DEROGATORY OF, OR BELITTLING TO, THE UNION. MCKENZIE TESTIFIED THAT HER
RELATIONSHIP WITH HINTON HAD BEEN STRAINED FOR SEVERAL YEARS BECAUSE OF
PROBLEMS WITH HINTON'S PERFORMANCE AND THREATS THAT THE UNION WAS GOING
TO "GET HER." SHE ACKNOWLEDGED HAVING SAID THAT SHE HAD NOT DONE
ANYTHING FOR THE UNION TO BOTHER HER ABOUT, AND DENIED EVER HAVING SAID
THAT THE UNION WOULD NOT OR COULD NOT HELP HINTON, OR THAT IT WAS NOT
WORTH ANYTHING AND COULD NOT DO ANYTHING FOR EMPLOYEES. SHE ADMITTED
LABELING HINTON AS A TROUBLEMAKER, BUT DENIED THAT IT HAD TO DO WITH
HINTON'S UNION ACTIVITIES OR WAS TIED TO THE UNION'S WILLINGNESS TO HELP
HER. SHE FURTHER ADMITTED THAT SHE BECAME AWARE, IN MARCH, THAT HINTON
HAD GRIEVED HER ALLEGED HARASSMENT OF HINTON, WHICH APPARENTLY REFERRED
TO MCKENZIE'S REFUSAL TO ASSIGN NURSING SERVICE PERSONNEL TO ASSIST IN
DISPOSING OF LINENS AND CLEANING THE OR.
CONCLUSIONS AS TO THE FIRST ALLEGATION
NEITHER VERSION OF THESE STAFF MEETINGS IS CREDIBLE. WHILE NEITHER
THE INTENT OF THE SPEAKER NOR THE REACTION OF THE LISTENER IS RELEVANT
IN ASSESSING STATEMENTS UNDER SECTION 7116(A)(1), I THINK IT PROPER TO
CONSIDER SUCH EVIDENCE IN THE EFFORT TO DETERMINE WHAT WAS SAID, AS
OPPOSED TO DETERMINING THE IMPACT UPON THE "REASONABLE MAN" OF A GIVEN
UTTERANCE. FOR THAT REASON I HAVE GIVEN WEIGHT TO THE FACT THAT THE
GENERAL COUNSEL'S WITNESSES CHARACTERIZED MCKENZIE'S DISPUTE WITH HINTON
AS A PERSONALITY CLASH AND AS "SOMETHING PERSONAL" BETWEEN THOSE TWO. I
THINK IT IS ALSO SIGNIFICANT THAT COUNSEL FOR THE GENERAL COUNSEL, IN
CLOSING ARGUMENT, SAID HE "WAS PERFECTLY WILLING TO AGREE . . . THAT
MS. MCKENZIE WAS NOT INTENDING TO DISPARAGE THE UNION, THAT SHE WAS NOT
INTENDING TO DO ANYTHING WRONG, WAS NOT INTENDING TO DISCREDIT THE UNION
. . . ." I AM ENTIRELY SATISFIED THAT MCKENZIE DID NOT REGULARLY LECTURE
HER SUBORDINATES ON THE POWERLESSNESS OF THE UNION AS SUCH.
IT IS CLEAR THAT THERE WAS MUCH DISCUSSION OF THE DISPUTE WITH HINTON
AS IT IMPACTED ON THEIR WORK, AND THAT THE SUBJECT WAS A CONSTANT
IRRITANT AND SOURCE OF DISSENSION. IT IS ALSO CLEAR THAT THERE WERE
RUMORS THAT THE UNION WAS GOING TO "GET" MCKENZIE, THAT SHE FELT SHE WAS
BEING THREATENED, AND THAT SHE TOLD THE STAFF, AFTER THE GRIEVANCE WAS
FILED, THAT THE UNION COULD NOT DO ANYTHING TO HER AS SHE HAD NOT DONE
ANYTHING WRONG. I CREDIT ALSO THE TESTIMONY THAT SHE SAID THE UNION
WOULD NOT ASSIST HINTON, WHOM IT REGARDED AS A TROUBLEMAKER, AND THAT
SHE ALSO SAID SOMETHING TO THE EFFECT THAT THE UNION COULD NOT HELP
HINTON IN THIS PARTICULAR STRUGGLE. I THINK THAT THE MESSAGE CONVEYED
WAS THAT THE GRIEVANCE WAS MERITLESS, I.E., THE UNION WOULD NOT TRY OR
WOULD NOT SUCCEED IN TRANSFERRING OR CLEAN-UP DUTY FROM ITS HOUSEKEEPING
CONSTITUENCY TO NURSING CONSTITUENCY. AS NOTED, WHO WAS TO DO SUCH WORK
WAS NECESSARILY A COMMON TOPIC, AND THE RESOLUTION OF THE GRIEVANCE
MIGHT ULTIMATELY SETTLE THE MATTER. I CREDIT THE TESTIMONY THAT MCKENZIE
SAID WORDS TO THE EFFECT THAT THE UNION "WAS NOT ABOUT ANYTHING , "I.E.,
WAS NOT UP TO ANYTHING OF ANY IMPORTANCE IN THIS MATTER. I DO NOT
BELIEVE THAT SHE SAID THAT THE UNION WAS WORTHLESS OR THAT IT COULD NOT
DO ANYTHING FOR EMPLOYEES GENERALLY. RATHER, I FIND THAT SHE WAS, IN
DISMISSING THE LIKELIHOOD THAT THE GRIEVANCE WOULD BE SUCCESSFUL, MAKING
VERY SPECIFIC REFERENCE TO THE CONTEST WITH HINTON, AND EXPRESSED HER
VIEW THAT THE UNION WOULD NOT, OR COULD NOT, DO ANYTHING ABOUT IT. I
ALSO FIND THAT SHE TOLD HER STAFF THAT THE RUMORS CREDITING THE UNION
WITH HAVING REMOVED THE PARKING FEE WERE UNTRUE. I DO NOT BELIEVE SHE
MADE SUCH STATEMENTS SEVERAL TIMES A WEEK FOR THREE MONTHS, BUT FIND
THAT SUCH REMARKS WERE REPEATED.
THE AUTHORITY HAS HELD /1/ THAT "OUTSIDE OF A REPRESENTATIONAL
CONTEXT, SECTION 7116(E) PROTECTS THE EXPRESSION OF PERSONAL VIEWS,
ARGUMENTS OR OPINIONS BY MANAGEMENT . . . AS LONG AS SUCH EXPRESSION
CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT OR WAS NOT
MADE UNDER COERCIVE CONDITIONS." THUS THE DOCTRINE OF DISPARAGEMENT
FASHIONED BY THE ASSISTANT SECRETARY, AND RELIEF UPON HERE BY THE
GENERAL COUNSEL, HAS BEEN LARGELY DESTROYED. SUPERVISOR MCKENZIE'S
STATEMENTS THAT THE UNION COULD NOT OR WOULD NOT HELP HINTON IN THEIR
CONTROVERSY WAS DEVOID OF ANY EXPLICIT THREAT OR PROMISE, AND WOULD
CONSTITUTE A VIOLATION ONLY IF THE REPETITION AND/OR THE PLACE AND
MANNER OF UTTERANCE CREATED COERCIVE CONDITIONS. CLEARLY MCKENZIE COULD
EXPRESS HER PERSONAL OPINION THAT THE GRIEVANCE OR COMPLAINT OF HINTON
WAS GROUNDLESS OR THAT THE UNION EITHER WOULD NOT OR COULD NOT DO
ANYTHING ABOUT THE ALLOCATION OF TASKS EITHER TO THE NURSING STAFF OR
THE HOUSEKEEPING STAFF. THE RATIONALE OF THE TINKER CASE APPLIES TO
PERMIT SUCH OBSERVATIONS WHERE MADE BY A SUPERVISOR TO EMPLOYEES WHO HAD
INITIATED THE CONVERSATION. QUERY WHETHER THE PRIVILEGE IS LOST WHEN THE
STATEMENT IS MADE AT STAFF MEETINGS, OR WHETHER THE REFERENCE TO
"COERCIVE CONDITIONS" IMPORTS THE EXISTENCE OF OTHER VIOLATIONS OF LAW,
OR AN UTTERANCE MADE WITH SUCH VEHEMENCE OR HOSTILITY AS TO BE
INTIMIDATING.
IT HAS BEEN NOTED THAT THE LEGISLATIVE HISTORY IS NOT A MODEL OF
CLARITY. CLEARLY, SENATOR HATCH, AS SPONSOR OF THE SO-CALLED FREE SPEECH
AMENDMENT, DESIRED TO AFFORD GOVERNMENT MANAGERS THE RIGHT, "SPEAKING
PERSONALLY . . . TO . . . SAY THAT HE DOES NOT LIKE UNIONS, AND HE DOES
NOT THINK THEY ARE A VERY GOOD IDEA AND HE DOES NOT THINK THEY WILL DO
ANYBODY WHO JOINS THEM ANY GOOD." (LEGISLATIVE HISTORY, PAGES
1025-1026). IN DEPARTMENT OF THE AIR FORCE, 5 FLRA NO. 62, THE AUTHORITY
NOTED, IN A REPRESENTATIONAL CONTEXT, THAT THE COMMANDER'S EXPRESSION OF
HIS OPPOSITION TO THE UNION WAS NOT COMMUNICATION OF A "PERSONAL VIEW,
ARGUMENT (OR) OPINION," BUT RATHER COULD "REASONABLY BE VIEWED AS THE
ACTIVITY'S OFFICIAL POSITION" WHERE THE MESSAGE WAS POSTED ON ALL
BULLETIN BOARDS AND CIRCULATED TO UNIT EMPLOYEES. WHILE I AM NOT CLEAR
ON THE RELEVANCE OF BREADTH OF DISSEMINATION IN AN ELECTION CONTEXT,
WHERE A POSTURE OF NEUTRALITY IS REQUIRED, THE AUTHORITY HAS HELD THAT
THE SOURCE AND METHOD OF A COMMUNICATION ARE SIGNIFICANT FACTORS IN THE
ASSESSMENT TO BE MADE.
THERE IS NO INDICATION HERE THAT MCKENZIE EXPRESSED THE VA HOSPITAL'S
OFFICIAL POSITION THAT THIS UNION COULD NOT OR WOULD NOT DO ANYTHING FOR
EMPLOYEES AT LARGE. RATHER I HAVE FOUND THAT SHE SPOKE TO THIS
PARTICULAR PROBLEM IN THE OR. THERE IS NO EVIDENCE SHE SPOKE IN ANGER OR
OTHERWISE CONVEYED A HOSTILITY TOWARD THE BARGAINING AGENT WHICH WOULD
BE THREATENING TO EMPLOYEES. AT MOST, SHE INDICATED DISDAIN FOR THE ROLE
THE UNION MIGHT PLAY IN HER RUNNING BATTLE WITH HINTON. THE ONLY
GROUND, THEN, IN WHICH HER STATEMENTS COULD BE VIOLATIVE, WOULD BE THAT
THEY WERE MADE TO THE ENTIRE NURSING STAFF AT MEETINGS, AND WERE
REPEATED, AND WERE NOT IDLE, OFFHAND AND THUS MORE CLEARLY "PERSONAL"
EXPRESSION OF VIEWS. IN NO OTHER RESPECT WERE CONDITIONS COERCIVE, THERE
BEING NO OTHER VIOLATIONS, OR EVEN INDICATIONS OF HOSTILITY TO THE UNION
IN THIS LARGE FACILITY. THUS A FINDING OF A VIOLATION WOULD BE
PREDICATED ON THE NOTION THAT SUCH STATEMENTS, AT STAFF MEETINGS, ARE
PER SE UNLAWFUL.
I CONCLUDE THAT SUCH STATEMENTS, MADE IN THIS GENERAL LABOR RELATIONS
ENVIRONMENT, AND WITH REFERENCE TO THIS PARTICULAR GRIEVANCE, ARE
PROTECTED FREE SPEECH, IN WHICH AN INDIVIDUAL SUPERVISOR TOLD HER
SUBORDINATES THAT, IN HER JUDGMENT, THE UNION HAD NO INTEREST IN, AND NO
POWER TO ALTER, THE INSTITUTIONAL ARRANGEMENTS FOR OR CLEAN-UP. WHILE
SUCH REMARKS MAY HAVE PUT DOWN, DISPARAGED OR DEMEANED THE UNION, THAT
IS PRECISELY WHAT THE FREE SPEECH AMENDMENT WOULD SEEM TO PERMIT. /2/
THE SECOND ALLEGATION, IN TIME, IS THAT MCKENZIE, IN THE PRESENCE OF
UNIT EMPLOYEES, REFERRED TO A UNION STEWARD AS "A BIG BAD UNION STEWARD
WHO REPORTED TO OR TO REPRESENT HINTON, BUT HAD ULTIMATELY ASSISTED HER
IN DISPOSING OF THE WORK RELATED MATTERS CONCERNING WHICH HE HAD BEEN
ASKED TO SERVE AS THE BARGAINING UNIT EMPLOYEE'S UNION REPRESENTATIVE."
ON APRIL 14, OR WAS VERY BUSY, LEAVING ABOUT A DOZEN VERY HEAVY BAGS
OF SOILED LINENS TO BE TOSSED DOWN THE LAUNDRY CHUTE. HOUSEKEEPING AID
WALTER O'HARA HAD GONE FOR THE DAY, LEAVING HINTON ALONE TO DISPOSE OF
THE LINENS. SHE ASKED MCKENZIE AND HEAD NURSE SIDES FOR, AND WAS
REFUSED, THE ASSISTANCE OF THE NURSING STAFF. SHE THEN PLACED CALLS HER
SUPERVISOR, SHIRLEY HOGUE AND TO UNION STEWARD GREGORY MITCHELL. HOGUE
UNSUCCESSFULLY ASKED MCKENZIE TO PROVIDE NURSING ASSISTANCE, AND THEN
CALLED HER SUPERVISOR, THE BUILDING MANAGER, WHO TOLD HER TO SECURE
ANOTHER HOUSEKEEPING AIDE. AS HOGUE PASSED THIS INFORMATION TO HINTON,
GREGORY ARRIVED, OVERHEARD WHAT SHE SAID, AND VOLUNTEERED TO HELP
HINTON. (IT HAPPENED THAT MITCHELL WORKED FOR BUILDING MANAGEMENT AS A
HOUSEKEEPING AIDE ELSEWHERE IN THE HOSPITAL). WHILE MITCHELL HELPED
HINTON DISPOSE OF THE DIRTY LINENS, MCKENZIE AND HEAD NURSE SIDES WERE
TALKING TO ONE ANOTHER AND SMILING AS THEY WATCHED. AT THIS POINT,
MCKENZIE ALLEGEDLY MADE THE STATEMENT SET FORTH IN THE COMPLAINT.
THREE WITNESSES PROVIDED MOST TENUOUS SUPPORT FOR THE ALLEGATION THAT
SUCH A STATEMENT WAS EVER MADE. THE ALLEGED WITNESS TO THE STATEMENT WAS
UNION VICE-PRESIDENT BOBO. NO WITNESS TO THE INCIDENT PLACES BOBO AS
PRESENT DURING THE DIRTY LINEN INCIDENT EXCEPT HEAD NURSE SIDES, WHO
SAID BOBO WAS NOT THERE DURING HER CONVERSATION WITH MCKENZIE IN THE
PRESENCE OF UNION STEWARD MITCHELL. MCKENZIE TESTIFIED THAT SHE THOUGHT
BOBO WAS PRESENT. GENERAL COUNSEL'S TWO WITNESSES REPORT CONVERSATIONS
WITH BOBO LATER THAT AFTERNOON WHICH ARE PROFFERED AS COMPETENT EVIDENCE
UNDER THE SPONTANEOUS OR EXCITED UTTERANCE EXCEPTION TO THE HEARSAY
RULE. THUS HINTON TESTIFIED THAT ABOUT THIRTY MINUTES AFTER THE
INCIDENT, BOBO TOLD HER THAT EITHER MCKENZIE OR SIDES HAD TOLD HIM THAT
THE "BIG BAD STEWARD . . . HAD COME UP TO RESOLVE THE PROBLEM OF
THROWING THE LINEN AND ENDED UP THROWING THE LINEN HIMSELF." HOWEVER,
JUST BEFORE THIS CONVERSATION, HINTON HAD GONE TO SEE SUPERVISOR HOGUE
ABOUT THE INCIDENT AND REPORTED THAT HOGUE TOLD HER THAT BOBO HAD COME
TO HER TO FIND OUT WHAT HAD HAPPENED AT THE OR. WHILE ALL OF THIS IS
HEARSAY, IT DOES CREATE DOUBT AS TO THE SOURCE OF THE INFORMATION BOBO
PASSED ON TO HINTON. STEWARD MITCHELL REPORTED THAT, ABOUT THIRTY
MINUTES AFTER THE INCIDENT, BOBO TOLD HIM THAT HE HAD HEARD WHAT HAD
HAPPENED AT THE OR-- THAT MCKENZIE HAD MADE THE STATEMENT DESCRIBED BY
HINTON. WHEN ASKED ON DIRECT EXAMINATION WHETHER BOBO TOLD HIM WHO HE
HAD HEARD SAY THAT, MITCHELL REPLIED THAT BOBO SAID THAT MCKENZIE SAID
IT. ON CROSS-EXAMINATION MITCHELL TESTIFIED THAT BOBO DID NOT TELL HIM
HOW HE KNEW ABOUT THE STATEMENT AND DID NOT SAY THAT HE HEARD IT. AS
ALREADY NOTED, MITCHELL DID NOT NAME BOBO AS BEING PRESENT DURING THE
INCIDENT. SUPERVISOR HOGUE, WHO SAID SHE DID NOT HEAR EITHER MCKENZIE OR
SIDES MAKE THE ALLEGED STATEMENT, TESTIFIED THAT SHE HEARD OF IT FROM
BOBO. BOBO REPORTEDLY SAID THAT "SOMEONE HAD MADE A STATEMENT THAT
GREGORY MITCHELL, A UNION STEWARD . . . HAD TO WIND UP THROWING THE
LINEN DOWN THE CHUTE." HOGUE FURTHER TESTIFIED THAT BOBO SAID HE HEARD
THE STATEMENT BUT "HE DID NOT TELL ME WHO SAID IT." WHEN ASKED WHETHER
BOBO TOLD HER WHO HE HEARD SAY IT, SHE REPLIED THAT HE HAD NOT. FINALLY,
BOBO WAS NOT CALLED BECAUSE HE CANNOT RECALL ANYTHING WHATEVER ABOUT THE
INCIDENT.
CONCLUSIONS AS TO THE SECOND ALLEGATION
SECTION 2423.17 PROVIDES THAT THE PARTIES TO UNFAIR LABOR PRACTICE
PROCEEDINGS SHALL NOT BE BOUND BY THE RULES OF EVIDENCE. THUS NONE OF
THE OBVIOUS HEARSAY RECOUNTED ABOVE WAS EXCLUDED FROM THE RECORD.
NEVERTHELESS THE EFFORT WAS QUITE NATURALLY MADE TO ADD TO THE PROBATIVE
VALUE OF SUCH EVIDENCE BY ATTEMPTING TO BRING THE STATEMENT ATTRIBUTED
TO BOBO WITHIN THE SPONTANEOUS OR EXCITED UTTERANCE EXCEPTION TO THE
TRADITIONAL HEARSAY EXCLUSIONARY RULE. CONVENTIONAL APPLICATION OF THIS
RULE WOULD PERMIT FINDINGS TO BE MADE BASED ON A STATEMENT UTTERED BY A
MISSING WITNESS-- ONE WHO CANNOT BE PUT TO THE TEST OF
CROSS-EXAMINATION-- ON THE GROUND THAT THE EXCITING CIRCUMSTANCES IN
WHICH THE STATEMENT WAS MADE AND THE LACK OF ANY OPPORTUNITY TO REFLECT
AND, PERHAPS, TO PREVARICATE, TENDS TO GUARANTEE THE TRUTHFULNESS OF THE
STATEMENT.
HERE, IT WOULD HARDLY SEEM THAT THE CIRCUMSTANCES WERE SO EXCITING,
OR THE TIME INTERVAL SO BRIEF, AS TO AFFORD ANY REAL ASSURANCE THAT BOBO
WAS REFLEXIVELY PASSING ON A SIGNIFICANT AND UNVARNISHED TRUTH. WORSE,
ONLY ONE WITNESS SAID THAT BOBO HAD HEARD MCKENZIE MAKE ANY SUCH REMARK
(TO HIM), AND THAT WITNESS TESTIFIED THAT SHE WAS TOLD THAT BOBO HAD
BEEN TO SEE HER SUPERVISOR TO FIND OUT WHAT HAPPENED IN THE OR. NOBODY
ELSE, IN FACT KNOWS WHERE BOBO PICKED UP SUCH KNOWLEDGE, AND BOBO
HIMSELF IS AN "UNAVAILABLE" WITNESS ONLY BECAUSE HE, A TOP UNION
OFFICIAL PRESUMED TO HAVE A SPECIAL INTEREST IN SUCH MATTERS, HAS NO
RECOLLECTION OF THE EVENT. ON THE SHAKY ASSUMPTION THAT BOBO DID NOT
PICK UP SECOND OR THIRD HAND THE "KNOWLEDGE" HE PASSED ON TO HINTON,
MITCHELL AND HOGUE, THEN HE IS THE ONLY PERSON THIS RECORD SUGGESTS MAY
HAVE HEARD SUCH A STATEMENT.
WHILE THE RULES OF EVIDENCE ARE NOT BINDING, NO FAIR HEARING PROCESS
CAN PERMIT A FINDING OF EVEN A PRIMA FACIE CASE OF A VIOLATION OF LAW,
BASED SOLELY ON HEARSAY EVIDENCE (OR DOUBLE HEARSAY). HAVING OBSERVED AT
THE HEARING THAT THIS WAS A "VERY VERY TENUOUS CASE" AND THAT I WAS NOT
INCLINED TO ACCEPT "VIRTUALLY NAKED" HEARSAY DEVOID OF ANY STRONG
SURROUNDING CORROBORATIVE CIRCUMSTANCES, I GRANT RESPONDENT'S MOTION TO
DISMISS THIS ALLEGATION.
THE FINAL ALLEGATION IS THAT, BETWEEN JUNE 9 AND JUNE 20, DR.
WILLIAM T. NEWTON, CHIEF OF SURGERY, TOLD JOHNNIE MAE HINTON THAT "HAD
SHE COME TO HIM FIRST WITH REGARD TO A PROBLEM . . . RATHER THAN SEEK
ASSISTANCE FROM THE UNION, HE COULD PERHAPS HAVE HELPED HER WITH HER
PROBLEM, BUT THAT SINCE SHE ELECTED TO SEEN UNION ASSISTANCE, MATTERS
HAD GONE TOO FAR FOR HIM TO ASSIST HER."
THE ONLY WITNESS TO THIS INCIDENT IS HINTON, AS DR. NEWTON IS
DECEASED. HER STORY IS AS FOLLOWS. SHE WENT TO SEE NEWTON BECAUSE OF
RUMORS THAT THE HOUSEKEEPING AIDES WERE GOING TO BE REMOVED FROM
SURGERY. DR. NEWTON TOLD HER THAT THE ISSUE WAS OVER THROWING LINEN
BAGS, THAT SHE AS A WOMAN WAS UNABLE TO THROW THE BAGS AND HE WAS GOING
TO GET TWO MALE NURSING ASSISTANTS TO DO IT. HE ADDED THAT "HAD I COME
TO HIM EARLIER, BEFORE I HAD GONE TO THE UNION AND CREATED ALL OF THIS
PROBLEM, THAT HE PROBABLY COULD HAVE HELPED THE SITUATION, BUT THAT IT
WAS EASIER FOR HIM TO DISPOSE OF THE TWO HOUSEKEEPING AIDES THAN IT WAS
TO GET RID OF MS. MCKENZIE." DURING THE CONVERSATION OF ABOUT ONE-HALF
HOUR, DR. NEWTON ELABORATED, STATING THAT HE COULD HAVE BOUGHT A LIFT TO
PUT THE BAGS UP TO THE CHUTE. HE WAS PLEASANT THROUGHOUT THEIR TALK.
THIS ENTIRE MATTER IS PUZZLING, BECAUSE THE RESOLUTION OF THE DIRTY
LINEN MATTER APPEARS TO HAVE BEEN A VICTORY FOR HINTON. SHE ADMITTED
THAT SHE WON HER FIGHT WITH RESPECT TO HER CONTENTION THAT LINEN
DISPOSAL WAS NOT HOUSEKEEPING'S JOB, BUT SAID SHE DID NOT WIN HER FIGHT
BECAUSE SHE LOST HER JOB IN OR AS A RESULT OF THAT. IT APPEARS THAT SHE
WISHED TO KEEP ALL OR "CLEAN-UP" RESPONSIBILITIES EXCEPT FOR LIFTING THE
BAGS AND TOSSING THEM DOWN THE LAUNDRY CHUTE, AND THAT SHE (AND O'HARA)
LOST OTHER ASSOCIATED DUTIES IN SURGERY, ALTHOUGH THAT IS HARDLY CLEAR.
SHE ATTRIBUTES TO DR. NEWTON THE DECISION TO USE MALE NURSING ASSISTANTS
FOR LINEN DISPOSAL-- EXACTLY WHAT SHE HERSELF SAID SHE WANTED. I MAKE
THE EFFORT TO EXPLORE THESE MATTERS BECAUSE I BELIEVE IT IMPORTANT TO
UNDERSTAND THE CONTEXT IN WHICH THE WORDS ATTRIBUTED TO DR. NEWTON-- OR
SOMETHING LIKE THEM-- WERE USED. SIMPLY PLUCKING OUT, AND PRESENTING IN
ISOLATION SOMEONE'S RECOLLECTION OF A CONVERSATION, REPRESENTS ONLY HALF
THE INQUIRY, FOR IT IS A COMMONPLACE OBSERVATION THAT WORDS TAKE ON
MEANING FROM THE ENTIRE CONTEXT IN WHICH THEY ARE USED. PEOPLE ARE FAR
MORE LIKELY TO RECALL AN IMPRESSION RECEIVED THAN THE VERY WORDS
EMPLOYED, AND I HAVE ALREADY INDICATED MY DOUBTS ABOUT THE ACCURACY OF
HINTON'S RECALL ABOUT THE BOBO INCIDENT. SHE WAS A TRUTHFUL WITNESS,
BUT WAS THE ONLY ONE WHO QUOTED BOBO AS HAVING SAID THAT HE DIRECTLY
HEARD MCKENZIE SAY ANYTHING ABOUT A "BIG BAD" STEWARD, AND THE WHOLE
SENSE OF THIS RECORD IS THAT HE DID NOT, BUT THAT SHE MISUNDERSTOOD. I
FIND TROUBLESOME, TOO, HINTON'S TESTIMONY THAT DR. NEWTON SAID IT WAS
"EASIER . . . TO DISPOSE OF TWO HOUSEKEEPING AIDES THAN TO GET RID OF
MCKENZIE." ON THIS RECORD IT IS DIFFICULT TO IMAGINE ANY SUCH CONFLICT,
FOR IT WAS MCKENZIE WHO INSISTED THAT THE AIDES, AND NOT HER NURSING
STAFF SHOULD DISPOSE OF THE LINENS.
THIS RECORD DOES NOT ESTABLISH WHAT HAPPENED TO OR CLEAN-UP
PROCEDURES, NOR DOES IT INDICATE WHO MADE THAT DECISION. WE KNOW ONLY
THAT A GRIEVANCE WAS FILED, THAT HINTON RESENTED MCKENZIE'S REFUSAL TO
PROVIDE HELP IN LINEN DISPOSAL, AND THAT THAT FUNCTION WAS ASSIGNED TO
THE NURSING STAFF, WHERE HINTON ARGUED IT BELONGED. IT ALSO APPEARS THAT
SHE LOST OTHER, ASSOCIATED WORK WHICH SHE DID NOT SEEK TO UNLOAD. I
CREDIT HER ASSERTION THAT, IN DR. NEWTON'S EFFORT TO EXPLAIN WHAT HAD
HAPPENED, HE SAID SOMETHING TO THE EFFECT THAT HAD SHE COME TO HIM WITH
HER COMPLAINT BEFORE SHE MADE A FORMAL GRIEVANCE OUT OF IT, AND INVOLVED
THE UNION, ARRANGEMENT MIGHT HAVE BEEN MADE TO PROVIDE A LIFT WHICH
WOULD PICK UP THE LINENS TO THE LEVEL OF THE LAUNDRY CHUTE. I FURTHER
BELIEVE THAT HE TOLD HER THAT THE DISPUTE HAD NOW REACHED A LEVEL WHERE
THAT RESOLUTION WAS NO LONGER POSSIBLE. WHILE I DO NOT BELIEVE THAT HE
SAID THE REMAINING AVAILABLE OPTIONS WERE TO GET RID OF MCKENZIE OR GET
RID OF HOUSEKEEPING AIDES-- AS REMOTE A PROSPECT AS THIS RECORD COULD
SUGGEST-- I THINK HE DID INDICATE THAT THE GRIEVANCE HAD NOW REACHED A
POINT WHERE HIS PROPOSED SOLUTION WAS NO LONGER POSSIBLE (I.E., IN THE
COMPLAINTS' LANGUAGE, THAT MATTERS HAD GONE TOO FAR FOR HIM TO ASSIST
HER). THE IMPLICIT CONTENTION THAT A LIFT MIGHT HAVE BEEN PROVIDED UPON
A REQUEST FREE OF THE TAINT OF UNION INVOLVEMENT, AND WOULD NOW BE
DENIED BECAUSE OF THE UNION'S GRIEVANCE ROLE, IS SURELY FAR-FETCHED. SO
FAR AS WE KNOW SHE NEVER SOUGHT A LIFT AND WOULD NOT HAVE BEEN HAPPY
WITH ONE. SHE, AGAIN, INSISTED ALL ALONG THAT THE JOB WAS NOT HER
RESPONSIBILITY BUT WAS NURSING'S. ACCORDING TO HER, THERE HAD EXISTED
FOR A LONG TIME A MEMO PLACING SUCH RESPONSIBILITY THERE. IT WOULD
CERTAINLY APPEAR THAT A HIGH-LEVEL DECISION WAS MADE, IN RESPONSE TO HER
GRIEVANCE, TO FIX THAT RESPONSIBILITY ON MCKENZIE. THUS, I FIND THAT DR.
NEWTON DID MENTION THE UNION, SAID THAT HE MIGHT AT AN EARLIER STAGE
HAVE HAD A SOLUTION TO THE PROBLEM, BUT THAT NOW THE MATTER HAD GONE TOO
FAR AND HE WAS POWERLESS. WHERE ONE BELIEVES, AS I DO, THAT THE
CIRCUMSTANCES ARGUE POWERFULLY AGAINST THE PRECISE STATEMENT ATTRIBUTED
TO RESPONDENT'S SPOKESMAN, IT IS PERHAPS PERMISSIBLE TO NOTE HINTON'S
SUBJECTIVE REACTION. SHE TESTIFIED THAT SHE DID NOT FEEL THAT DR. NEWTON
WAS TRYING TO INTERFERE WITH HER RIGHTS AS A UNION MEMBER OR TO PUNISH
HER FOR SEEKING UNION ASSISTANCE, AND THAT SHE WAS NOT THEREAFTER
RELUCTANT TO SEEK THE UNION'S ASSISTANCE.
IN SUM, I FIND THAT DR. NEWTON, OVER THE COURSE OF THEIR THIRTY
MINUTE TALK, TOLD HINTON THAT HE MIGHT HAVE PROVIDED A LIFT HAD HIS HELP
BEEN SOUGHT EARLY ON, BUT THAT RESOLUTION OF THE GRIEVANCE WHICH SHE
BROUGHT WITH THE UNION'S HELP HAD REACHED A STAGE WHERE HE COULD NO
LONGER DO THAT. THAT STAGE WAS COMMUNICATED TO HER: A DECISION
(CONSONANT WITH HER DESIRE) TO REPLACE HER WITH MALE NURSING ASSISTANTS
WHO COULD LIFT THE HEAVY LINENS, AND A DISPOSITION ON HIS PART NOT TO
ENGAGE IN ANY FURTHER DISPUTE WITH MCKENZIE OVER THE REMAINING CLEAN-UP
DUTIES OF WHICH HINTON FELT DEPRIVED. I CANNOT, ON THIS RECORD, FIND
THAT DR. NEWTON SAID THAT HIS UNWILLINGNESS OR INABILITY TO PROVIDE
HINTON WITH A MECHANICAL LIFT SHE NEVER ASKED FOR WAS THE CONSEQUENCE OF
HER EXERCISE OF THE RIGHT TO SEEK THE UNION'S ASSISTANCE IN HER EFFORT
TO AVOID THE VERY TASK OF LIFTING THE LINENS.
HAVING FOUND THAT THE ALLEGATIONS OF THE COMPLAINT ARE NOT SUPPORTED
BY A PREPONDERANCE OF THE EVIDENCE, I RECOMMEND THAT THE FEDERAL LABOR
RELATIONS AUTHORITY ENTER THE FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT HEREIN BE, AND IT HEREBY IS,
DISMISSED.
/1/ OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE,
OKLAHOMA, 6 FLRA NO. 32. CF. DEPARTMENT OF THE ARMY, FT. BRAGG SCHOOLS,
3 FLRA NO. 57.
/2/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, FT. CARSON, COLORADO,
OALJ-82-24 AND OALJ-82-30.
JOHN J. RUBIN, ESQUIRE, FOR THE GENERAL COUNSEL
KENNETH E. REITER, ESQUIRE, FOR THE RESPONDENT 770801 0000420