[ v10 p120 ]
10:0120(25)CA
The decision of the Authority follows:
10 FLRA No. 25
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BUREAU OF FIELD OPERATIONS
SAN FRANCISCO REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF
SOCIAL SECURITY DISTRICT OFFICE
LOCALS, SAN FRANCISCO REGION
Charging Party
Case No. 9-CA-369
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, /1/ THE AUTHORITY
FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) /2/ BY CONDUCTING A FORMAL DISCUSSION
WITHIN THE MEANING OF SECTION 7114(A)(2)(A) /3/ ON FEBRUARY 15, 1980
WITH BARGAINING UNIT EMPLOYEES WITHOUT PROVIDING THE UNION WITH NOTICE
AND AN OPPORTUNITY TO BE PRESENT.
ON AUGUST 30, 1979, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (AFGE) WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF A
NATIONAL CONSOLIDATED UNIT CONSISTING OF, INTER ALIA, A UNIT OF
RESPONDENT'S EMPLOYEES FOR WHICH THE CHARGING PARTY WAS CERTIFIED AS
EXCLUSIVE REPRESENTATIVE IN 1972. NO NATIONAL COLLECTIVE BARGAINING
AGREEMENT YET EXISTS, AND THEREFORE THE TERMS AND CONDITIONS SET FORTH
IN THE PRE-CONSOLIDATION AGREEMENT NEGOTIATED IN 1977 BETWEEN THE
RESPONDENT AND THE CHARGING PARTY REMAIN IN EFFECT. /4/
A CLAIMS REPRESENTATIVE IS A BARGAINING UNIT EMPLOYEE WHO TAKES
APPLICATIONS FOR AND ADJUDICATES SOCIAL SECURITY CLAIMS UNDER EITHER
TITLE II OR TITLE XVI OF THE SOCIAL SECURITY ACT. PRIOR TO 1978, A
CLAIMS REPRESENTATIVE ADMINISTERED BOTH TITLE II AND TITLE XVI PROGRAMS.
ON OCTOBER 24, 1979, THE RESPONDENT ESTABLISHED A SPECIAL
"TELECLAIMS" UNIT IN ADDITION TO REGULAR ALPHABETICAL UNITS IN ITS
ROSEVILLE BRANCH OFFICE AND ASSIGNED THIS UNIT TO CHRISSY FONG, ONE OF
ITS CLAIMS REPRESENTATIVES. THE STATED PURPOSE OF THIS UNIT WAS TO
PROCESS TITLE II SOCIAL SECURITY CLAIMS BY TELEPHONE AND TO ADJUDICATE
SUCH CLAIMS.
ON DECEMBER 31, 1979, ROSE ARREGUY, A FORMER ROSEVILLE EMPLOYEE, WAS
HIRED TO REPLACE FONG AS TITLE II CLAIMS REPRESENTATIVE IN THE ROSEVILLE
BRANCH OFFICE. SHORTLY AFTER ARREGUY'S ARRIVAL, SHE WAS ASSIGNED BY
TITLE II OPERATIONS SUPERVISOR LINDA GIROUX TO PROCESS AND ADJUDICATE
TITLE II TELECLAIMS. SHE PROCESSED APPROXIMATELY TEN OF THESE CASES PER
WEEK.
IN ADDITION TO HER TELECLAIMS RESPONSIBILITIES, BEGINNING ON FEBRUARY
1, 1980, ARREGUY WAS ASSIGNED TO TAKE IN-PERSON INTERVIEWS AT RANDOM,
AND AVERAGED ABOUT EIGHT OF THESE PER WEEK. ALTHOUGH EACH CLAIMS
REPRESENTATIVE WAS ASSIGNED A UNIT COVERING A PART OF THE ALPHABET AND
WAS RESPONSIBLE FOR INTERVIEWING AND PROCESSING A CLAIMANT WHOSE LAST
NAME FELL INTO THE PARTICULAR ALPHABETICAL BREAKDOWN, ARREGUY WAS NOT
GIVEN AN ALPHABETICAL BREAKDOWN.
SOMETIME DURING JANUARY 1980, IT WAS ANNOUNCED DURING A REGULAR STAFF
MEETING IN THE ROSEVILLE OFFICE THAT ARREGUY WOULD BE SENT OUT OF THE
OFFICE TO A FORMAL TITLE II CLAIMS REPRESENTATIVE TRAINING CLASS LASTING
SEVERAL WEEKS. ON FEBRUARY 15, 1980, OPERATIONS SUPERVISOR GIROUX HELD
A TITLE II UNIT MEETING WITH 11 BARGAINING UNIT EMPLOYEES AT WHICH SHE
ANNOUNCED THAT ARREGUY WOULD BE LEAVING FOR TRAINING ON FEBRUARY 20,
1980. GIROUX ALSO DISCUSSED THE REDISTRIBUTION OF ARREGUY'S PENDING
WORK. THIS CONSISTED OF, AMONG OTHER THINGS, 15 PENDING CASES WHICH
WERE ASSIGNED BY GIROUX TO THE REMAINING CLAIMS REPRESENTATIVES BASED ON
EXISTING ALPHABETICAL BREAKDOWNS. THE MEETING WAS HELD WITHOUT
PROVIDING THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE REPRESENTED.
THE GENERAL COUNSEL AND THE CHARGING PARTY CONTEND THAT THE
RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY
HOLDING A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 7114(A)(2)(A)
WITH BARGAINING UNIT EMPLOYEES ON FEBRUARY 15, 1980, CONCERNING THE
DISTRIBUTION OF ADDITIONAL CASES TO BE ASSIGNED, WITHOUT PROVIDING THE
UNION WITH NOTICE AND AN OPPORTUNITY TO BE PRESENT AT SAID DISCUSSION.
THE RESPONDENT CONTENDS THAT IT DID NOT HAVE AN OBLIGATION TO AFFORD
THE UNION AN OPPORTUNITY TO BE PRESENT AT THE FEBRUARY 15, 1980 MEETING.
IN THIS REGARD IT ARGUES THAT, IN ACCORDANCE WITH THE NEGOTIATED
AGREEMENT, DECISIONS AS TO THE ASSIGNMENT AND FLOW OF WORK MUST BE
RESERVED TO MANAGEMENT IN ORDER TO EFFECTIVELY CONDUCT ITS OPERATIONS.
IT IS ARGUED THAT ARTICLE 25, SECTION G OF THE PARTIES' AGREEMENT /5/
INDICATES WHEN THE PRESENCE OF A UNION REPRESENTATIVE IS NECESSARY, AND
THAT ARTICLE 5, SECTION B THEREOF /6/ OUTLINES KEY RIGHTS AND
RESPONSIBILITIES OF MANAGEMENT OFFICIALS. THE RESPONDENT FURTHER
CONTENDS THAT THE STAFF MEETING WAS NOT A FORMAL DISCUSSION WITHIN THE
MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE.
IN A COMPANION CASE INVOLVING THE SAME PARTIES, DEPARTMENT OF HEALTH
AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, BUREAU OF FIELD
OPERATIONS, SAN FRANCISCO REGION, 10 FLRA NO. 24(1982), THE AUTHORITY
DISMISSED A COMPLAINT WHICH ALLEGED, IN PART, THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE BY HOLDING FORMAL
DISCUSSIONS WITH BARGAINING UNIT EMPLOYEES CONCERNING THE ASSIGNMENT AND
DISTRIBUTION OF WORK FOLLOWING AN EMPLOYEE'S DETAIL TO ANOTHER CITY
WITHOUT PROVIDING THE UNION WITH NOTICE AND AN OPPORTUNITY TO BE
PRESENT. IN THAT CASE, THE AUTHORITY CONCLUDED THAT THE GENERAL COUNSEL
HAD FAILED TO MEET THE BURDEN OF PROVING THAT THE MEETINGS IN QUESTION
WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF
THE STATUTE SINCE THE STIPULATED RECORD DID NOT CONTAIN ENOUGH SPECIFIC
EVIDENCE ABOUT THE MEETINGS TO ENABLE THE AUTHORITY TO DETERMINE WHETHER
THEY WERE "FORMAL" IN NATURE. IN THE INSTANT CASE, THE AUTHORITY
SIMILARLY CONCLUDES THAT THE GENERAL COUNSEL HAS NOT MET ITS BURDEN OF
PROVING THAT THE FEBRUARY 15, 1980 MEETING WAS A "FORMAL" DISCUSSION.
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
EMPLOYEES 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). THEREFORE, THE AUTHORITY FINDS
THAT THE GENERAL COUNSEL HAS FAILED TO ESTABLISH THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE BY FAILING TO
COMPLY WITH SECTION 7114(A)(2)(A), AND THAT THE COMPLAINT THEREFORE MUST
BE DISMISSED IN ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-369 BE, AND
IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE GENERAL COUNSEL HAS MOVED TO STRIKE PORTIONS OF THE
RESPONDENT'S BRIEF ON THE GROUNDS THAT THE BRIEF CONTAINS FACTUAL
MATERIAL NOT INCLUDED IN THE STIPULATION OF FACTS. IN REACHING ITS
DECISION IN THE INSTANT CASE, THE AUTHORITY HAS ONLY CONSIDERED FACTS
CONTAINED IN THE STIPULATION, AND THEREFORE THE MOTION TO STRIKE IS
DENIED.
/2/ 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;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/3/ 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--
(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 PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
/4/ SEE SECTION 2422.2(H)(8) OF THE AUTHORITY'S RULES AND
REGULATIONS.
/5/ ARTICLE 25, SECTION G
MANAGEMENT OFFICIALS, INCLUDING SUPERVISORS, RETAIN THE RIGHT TO HOLD
COUNSELING AND OTHER
DISCUSSIONS WITH EMPLOYEES WITHOUT THE PRESENCE OF A UNION
REPRESENTATIVE, UNLESS AND UNTIL
THE EMPLOYEE HAS ASKED WHETHER THE MEETING MIGHT RESULT IN
DISCIPLINARY ACTION AND THE REPLY
HAS BEEN IN THE AFFIRMATIVE.
/6/ ARTICLE 5, SECTION B
MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN ACCORDANCE
WITH APPLICABLE LAWS AND
REGULATIONS:
(1) TO DIRECT EMPLOYEES OF THE AGENCY;
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST
EMPLOYEES;
(3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
OTHER LEGITIMATE
REASONS;
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM;
(5) TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; AND
(6) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE AGENCY IN
SITUATIONS OF EMERGENCY.