[ v05 p504 ]
05:0504(63)CA
The decision of the Authority follows:
5 FLRA No. 63
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF PROGRAM OPERATIONS AND FIELD OPERATIONS,
SUTTER DISTRICT OFFICE,
SAN FRANCISCO, CALIFORNIA /1/
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3172, AFL-CIO
Charging Party
Case Nos. 9-CA-35
9-CA-36
9-CA-37
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S DECISION. THE ADMINISTRATIVE LAW JUDGE FOUND FURTHER THAT THE
RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDED THE DISMISSAL OF THAT PORTION
OF THE COMPLAINT. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S DECISION AND THE GENERAL COUNSEL AND CHARGING
PARTY FILED OPPOSITIONS TO THE RESPONDENT'S EXCEPTIONS.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 - 7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S DECISION, AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING
THE RESPONDENT'S EXCEPTIONS AND THE GENERAL COUNSEL'S AND THE CHARGING
PARTY'S OPPOSITIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, WITH THE FOLLOWING
MODIFICATION.
WITH RESPECT TO THE RESPONDENT'S EXCEPTION CONCERNING THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT AS TO THE APPROPRIATE
BARGAINING UNIT, IT APPEARS CLEAR THAT THE COUNCIL OF DISTRICT OFFICE
LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO
REGION (THE UNION) IS IN FACT THE EXCLUSIVE REPRESENTATIVE OF ALL SOCIAL
SECURITY ADMINISTRATION (SSA) GENERAL SCHEDULE EMPLOYEES IN THE SAN
FRANCISCO REGION. IN THIS CONNECTION, THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE SSA, SAN FRANCISCO REGION AND THE UNION REFERENCES
CASE NO. 70-2428, ISSUED ON AUGUST 9, 1972, BY THE AREA ADMINISTRATOR,
SAN FRANCISCO AREA OFFICE, ASSISTANT SECRETARY OF LABOR FOR LABOR
MANAGEMENT RELATIONS, WHICH PROVIDES THAT THE UNION IS THE
REPRESENTATIVE FOR PURPOSES OF EXCLUSIVE RECOGNITION FOR THE
AFOREMENTIONED UNIT. ACCORDINGLY, THE DECISION HEREIN IS CLARIFIED TO
REFLECT THAT FACT.
ORDER /2/
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 HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION, OFFICE OF PROGRAM OPERATIONS
AND FIELD OPERATIONS, SUTTER DISTRICT OFFICE, SAN FRANCISCO, CALIFORNIA
SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING POLICIES RELATIVE TO THE DEFINITION TO BE GIVEN TO THE
TERM "FLEXIBILITY," AS USED IN EVALUATING ITS EMPLOYEES WITHOUT FIRST
AFFORDING THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION, NOTICE AND AN OPPORTUNITY TO
BARGAIN, CONSONANT WITH THE OBLIGATIONS IMPOSED BY THE STATUTE,
CONCERNING ANY PROPOSED CHANGE IN SUCH POLICIES.
(B) CHANGING POLICIES GOVERNING APPRAISALS OF ITS EMPLOYEES RELATIVE
TO LINKING THOSE APPRAISALS TO THE SUTTER DISTRICT OFFICE'S RANKING WITH
OTHER DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, SAN FRANCISCO REGION, NOTICE AND AN OPPORTUNITY TO BARGAIN,
CONSONANT WITH THE OBLIGATIONS IMPOSED BY THE STATUTE, CONCERNING ANY
PROPOSED CHANGE IN SUCH POLICIES.
(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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESCIND THE ANNOUNCED CHANGE IN POLICY RELATIVE TO THE DEFINITION
TO BE GIVEN TO THE TERM "FLEXIBILITY" AS USED IN EVALUATING ITS
EMPLOYEES REPRESENTED BY THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION.
(B) RESCIND THE ANNOUNCED CHANGE IN POLICY GOVERNING APPRAISALS OF
ITS EMPLOYEES RELATIVE TO LINKING TO THE SUTTER DISTRICT OFFICE'S
RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION WITH RESPECT TO
EMPLOYEES REPRESENTED BY THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION.
(C) UPON REQUEST, REAPPRAISE, WITHOUT REGARD TO THE SUTTER DISTRICT
OFFICE'S RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION, ANY
EMPLOYEE WHO WAS UNDER THE SUPERVISION OF MARTHA LOWERY AND WHOSE
APPRAISAL IN APRIL 1979 WAS LOWER THAN THE OCTOBER 1978 APPRAISAL OF
THAT EMPLOYEE.
(D) UPON REQUEST, BARGAIN, CONSONANT WITH THE OBLIGATIONS IMPOSED BY
THE STATUTE AND THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT, WITH THE
COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, SAN FRANCISCO REGION, CONCERNING ANY PROPOSED CHANGE
REGARDING THE DEFINITION TO BE GIVEN TO THE TERM "FLEXIBILITY," AS USED
IN EVALUATING SUTTER DISTRICT OFFICE EMPLOYEES, AND LINKING EMPLOYEE
APPRAISALS TO THE SUTTER DISTRICT OFFICE'S RANKING WITH OTHER SOCIAL
SECURITY OFFICES IN THE REGION.
(E) POST AT ITS SUTTER DISTRICT OFFICE FACILITY LOCATED IN SAN
FRANCISCO, CALIFORNIA, 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 OF THE SUTTER DISTRICT
OFFICE, 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.
(F) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 9, ROOM 11408, 450
GOLDEN GATE AVENUE, P.O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., APRIL 21, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 POLICIES RELATIVE TO THE DEFINITION OF
"FLEXIBILITY" AS USED IN EVALUATING EMPLOYEES OR CHANGE POLICIES
RELATIVE TO LINKING EMPLOYEE APPRAISALS TO THE SUTTER DISTRICT OFFICE'S
RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION WITHOUT FIRST
AFFORDING THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION, NOTICE AND AN OPPORTUNITY TO
BARGAIN, CONSONANT WITH THE OBLIGATIONS IMPOSED BY THE STATUTE,
CONCERNING ANY PROPOSED CHANGES IN SUCH POLICIES.
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 RESCIND THE ANNOUNCED CHANGE IN POLICY RELATIVE TO THE
DEFINITION TO BE GIVEN TO THE TERM "FLEXIBILITY" AS USED IN EVALUATING
EMPLOYEES AND RESCIND THE CHANGE IN POLICY RELATIVE TO LINKING EMPLOYEE
APPRAISALS TO THE SUTTER DISTRICT OFFICE'S RANKING WITH OTHER SOCIAL
SECURITY OFFICES IN THE REGION.
WE WILL, UPON REQUEST, REAPPRAISE, WITHOUT REGARD TO THE SUTTER
DISTRICT OFFICE'S RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE
REGION, ANY EMPLOYEE WHO WAS UNDER THE SUPERVISION OF MARTHA LOWERY AND
WHOSE APPRAISAL IN APRIL 1979 WAS LOWER THAN THE OCTOBER 1978 APPRAISAL
OF THAT EMPLOYEE.
WE WILL, UPON REQUEST, BARGAIN, CONSONANT WITH THE OBLIGATIONS
IMPOSED BY THE STATUTE AND THE APPLICABLE COLLECTIVE BARGAINING
AGREEMENT, WITH THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION, CONCERNING ANY
PROPOSED CHANGE REGARDING THE DEFINITION TO BE GIVEN TO THE TERM
"FLEXIBILITY," AS USED IN EVALUATING EMPLOYEES, AND LINKING EMPLOYEE
APPRAISALS TO THE SUTTER DISTRICT OFFICE'S RANKING WITH OTHER SOCIAL
SECURITY OFFICES IN THE REGION.
(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 9, WHOSE
ADDRESS IS: ROOM 11408, 450 GOLDEN GATE AVENUE, P.O. BOX 36016, SAN
FRANCISCO, CALIFORNIA 94102, AND WHOSE TELEPHONE NUMBER IS: (415)
556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
WILSON G. SCHUERHOLZ
FOR THE RESPONDENT
JOSANNA BERKOW, ESQ.
THOMAS ANGELO, ESQ.
FOR THE GENERAL COUNSEL
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.
SECTION 7101 ET SEQ.
UPON THE FILING OF UNFAIR LABOR PRACTICE CHARGES BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3172, AFL-CIO ON APRIL 27 AND
APRIL 30, 1979 AGAINST DEPARTMENT OF HEALTH AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF PROGRAM OPERATIONS AND FIELD OPERATIONS,
SUTTER DISTRICT OFFICE, SAN FRANCISCO, CALIFORNIA (RESPONDENT), THE
GENERAL COUNSEL OF THE AUTHORITY, BY THE REGIONAL DIRECTOR FOR REGION 9,
ISSUED AN ORDER CONSOLIDATING CASES, COMPLAINT AND NOTICE OF HEARING ON
JANUARY 21, 1980 ALLEGING THAT RESPONDENT HAD ENGAGED IN AND IS ENGAGING
IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECTIONS 7116(A)(1) AND
(5) OF THE STATUTE. THE COMPLAINT ESSENTIALLY ALLEGES THAT RESPONDENT
ON FEBRUARY 8, MARCH 8 AND MARCH 22, 1979 UNILATERALLY CHANGED EXISTING
POLICIES AND PRACTICES AFFECTING CONDITIONS OF EMPLOYMENT WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN ON THE CHANGES OR IMPACT
THEREOF. RESPONDENT DENIES THE ALLEGATIONS.
A HEARING ON THE COMPLAINT HEREIN WAS CONDUCTED ON FEBRUARY 25 AND
26, 1980 IN SAN FRANCISCO, CALIFORNIA, AT WHICH TIME ALL PARTIES WERE
REPRESENTED AND AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL,
EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED
BY RESPONDENT AND COUNSEL FOR THE GENERAL COUNSEL.
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 THE COUNCIL OF DISTRICT OFFICE LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION (THE
UNION HEREIN) HAS BEEN THE EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE OF AN APPROPRIATE UNIT OF SOCIAL SECURITY ADMINISTRATION
GENERAL SCHEDULE EMPLOYEES IN THE SUTTER DISTRICT OFFICE, SAN FRANCISCO
REGION. LOCAL 3172 IS A CONSTITUENT MEMBER OF THE COUNCIL. THE UNION
IS REPRESENTED AT THE VARIOUS DISTRICT OFFICES, INCLUDING THE SUTTER
OFFICE, THROUGH A UNION REPRESENTATIVE APPOINTED BY THE COUNCIL TO DEAL
WITH DISTRICT OFFICE MANAGEMENT ON PERSONNEL POLICIES AND PRACTICES
AFFECTING UNIT EMPLOYEES AT EACH SPECIFIC LOCATION. THE UNION
REPRESENTATIVE AT THE SUTTER OFFICE FROM 1977 TO SOMETIME SHORTLY PRIOR
TO MARCH 17, 1979 WAS MARC SEIDENFELD, A UNIT EMPLOYEE WHO WAS ALSO A
COUNCIL CHIEF STEWARD FROM MARCH 1978 TO MARCH 1979. /3/ AS UNION
REPRESENTATIVE SEIDENFELD HAD DEALINGS REGARDING LABOR RELATIONS MATTERS
WITH MANAGEMENT ON VIRTUALLY A DAILY BASIS.
A. FLEXIBILITY
ON JANUARY 19, 1979 ARTHUR MATSUYAMA CAME TO THE SUTTER OFFICE AS ITS
NEWLY APPOINTED DISTRICT MANAGER. SUBSEQUENTLY, MATSUYAMA WISHED TO
ASSURE THAT SUTTER DISTRICT EMPLOYEES WERE FAMILIAR WITH RESPONDENT'S
PROMOTION POLICY AND ACCORDINGLY, ON FEBRUARY 8, 1979 HE CONDUCTED A
TRAINING SESSION ON RESPONDENT'S MERIT PROMOTION PLAN. /4/ THE MEETING
WAS ATTENDED BY VARIOUS SUPERVISORS AND NUMEROUS UNIT EMPLOYEES. /5/
DURING THE SESSION COPIES OF THE MERIT PROMOTION PLAN AND RESPONDENT'S
EMPLOYEE EVALUATION FORM FOR APPRAISALS WERE DISTRIBUTED TO THE
AUDIENCE. MATSUYAMA STRESSED THE IMPORTANCE OF EMPLOYEE "FLEXIBILITY"
IN ACHIEVING A HIGH RATING UNDER THE PLAN AND DEFINED THE TERM AS A
WILLINGNESS TO HELP OUT. IN RESPONSE TO QUESTIONS FROM THE AUDIENCE
WHICH SOUGHT TO ASCERTAIN A MORE PRECISE DEFINITION OF THE TERM
FLEXIBILITY, MATSUYAMA INDICATED THAT IF EMPLOYEES REFUSED TO WORK
OVERTIME, OUT OF THEIR JOB DESCRIPTIONS OR AWAY FROM ASSIGNED DUTY
STATIONS THEY COULD EXPECT NOT TO BE PROMOTED OR RECOMMENDED FOR
PROMOTION. MATSUYAMA ALSO STATED THAT ABSENCES WOULD BE INTERPRETED AS
AN UNWILLINGNESS TO WORK AND IF AN EMPLOYEE WAS UNWILLING TO WORK HE
WOULD NOT PROMOTE THAT PERSON. VARIOUS EMPLOYEES MADE COMMENTS TO THE
EFFECT THAT EMPLOYEES HAD THE RIGHT TO TAKE ACCRUED ANNUAL LEAVE AND
SHOULD NOT BE PENALIZED FOR EXERCISING THAT RIGHT AND THAT ABSENCE FOR
SICKNESS WAS NOT WITHIN THE EMPLOYEES' CONTROL. IN RESPONSE MATSUYAMA
ESSENTIALLY RESTATED THAT ABSENCES WOULD BE INTERPRETED AS AN
UNWILLINGNESS TO WORK.
WITHIN A WEEK OR TWO PRIOR TO THE FEBRUARY 8 MEETING, WILLIAM AMBORN,
RESPONDENT'S OPERATION OFFICER AT THE SUTTER OFFICE MET WITH UNION
REPRESENTIVE SEIDENFELD AND INFORMED HIM THAT MANAGEMENT PLANNED TO
CONDUCT A TRAINING PROGRAM AMONG EMPLOYEES ON THE PROMOTION PLAN.
SEIDENFELD WAS SHOWN COPIES OF THE MERIT PROMOTION PLAN AND EVALUATION
FORM WHICH WOULD BE DISTRIBUTED WHEN THE TRAINING SESSION WAS HELD.
SEIDENFELD AGREED THAT THE TRAINING PROGRAM WAS DESIRABLE, HOWEVER, NO
MENTION WAS MADE PRIOR TO THE MEETING REGARDING MATSUYAMA'S
INTERPRETATION OF "FLEXIBILITY" SET FORTH ABOVE. THAT INTERPRETATION
WAS INCONSISTANT WITH THE DEFINITION OF FLEXIBILITY AS SET FORTH IN
RESPONDENT'S RATING AID FOR EMPLOYEE APPRAISAL /6/ AND WORKING OVERTIME,
OUT OF JOB DESCRIPTIONS OR AWAY FROM ASSIGNED DUTY STATIONS AND
INTERPRETING ABSENCES AS AN UNWILLINGNESS TO WORK WERE NOT PREVIOUSLY
MATTERS CONSIDERED BY SUPERVISORS IN EVALUATING A SUBORDINATE EMPLOYEE'S
"FLEXIBILITY".
AFTER THE FEBRUARY 8 TRAINING PROGRAM CONCLUDED, VARIOUS EMPLOYEES
COMPLAINED TO SEIDENFELD THAT MANAGEMENT WAS IMPLEMENTING A NEW POLICY
ON "FLEXIBILITY". HOWEVER, ACCORDING TO SEIDENFELD, HE UNDERSTOOD
MATSUYAMA TO DEFINE FLEXIBILITY MERELY AS A "WILLINGNESS TO HELP OUT"
AND, A WILLINGNESS TO WORK OVERTIME BUT RECALLED NO MENTION OF WORKING
OUTSIDE ONES JOB DESCRIPTION. /7/
ACCORDINGLY, SEIDENFELD DID NOT INTERPRET MATSUYAMA'S COMMENTS TO BE
A DEPARTURE FROM PAST PRACTICE AND ATTEMPTED TO ASSURE THESE EMPLOYEES
THAT THERE HAD BEEN NO CHANGE. LATER, SEIDENFELD RELAYED TO AMBORN THAT
THE STAFF HAD "READ" MATSUYAMA'S STATEMENTS INCORRECTLY BUT NO EFFORT
WAS MADE TO FURTHER CLARIFY MANAGEMENT'S POSITION ON THE MATTER.
B. OFFICE RANKING AND INDIVIDUAL PERFORMANCE APPRAISALS
SOMETIME IN FEBRUARY 1979 SEIDENFELD MET WITH AMBORN AND DISCUSSED
THE SUTTER DISTRICT OFFICE'S LOW OFFICE RANKING. SEIDENFELD WAS
INFORMED THAT MATSUYAMA WAS GOING TO MEET WITH EMPLOYEES TO TALK ABOUT
APPRAISALS AND THE SUTTER OFFICE'S LOW OFFICE RANKING. HOWEVER,
SPECIFICS OF WHAT MATSUYAMA WAS GOING TO SAY WERE NOT DISCUSSED. DURING
THE CONVERSATION AMBORN QUESTIONED HOW THE GENERAL LEVEL OF EMPLOYEE
APPRAISALS COULD BE HIGH WHILE THE OFFICE RANKING WAS LOW. SEIDENFELD
WAS OF THE OPINION THAT APPRAISALS HAD ALREADY BEEN LOWERED DURING THE
OCTOBER 1978 APPRAISALS BUT, IN ANY EVENT, SEIDENFELD AND AMBORN AGREED
THAT INDIVIDUAL APPRAISALS SHOULD NOT BE LINKED TO OVERALL OFFICE
RANKINGS.
IN LATE FEBRUARY 1979 MATSUYAMA MET WITH THE SUTTER DISTRICT OFFICE
SUPERVISORY STAFF TO DISCUSS EMPLOYEE APPRAISALS. DURING THE MEETING
MATSUYAMA STATED THAT IN VIEW OF THE SUTTER DISTRICT OFFICE'S LOW
RANKING AS COMPARED TO OTHER SOCIAL SECURITY OFFICES IN THE SAN
FRANCISCO REGION, THE HIGH PERFORMANCE APPRAISALS GIVEN TO SUTTER OFFICE
EMPLOYEES COULD NOT BE JUSTIFIED. HENCEFORTH, MATSUYAMA ANNOUNCED,
SUPERVISORY PERFORMANCE APPRAISALS WOULD BE LINKED TO THE RANKING OF THE
SUTTER OFFICE. MATSUYAMA FURTHER STATED THAT INDIVIDUAL EMPLOYEE
APPRAISALS SHOULD REFLECT THE OFFICE RANKING AND ACCORDINGLY, IF THE
OFFICE DID NOT IMPROVE IN RANKING, INDIVIDUAL EMPLOYEE APPRAISALS SHOULD
BE LOWERED.
ON MARCH 8, 1979 DURING A GENERAL STAFF MEETING ATTENDED BY VARIOUS
SUPERVISORS AND UNIT EMPLOYEES, SUTTER OFFICE MANAGEMENT REVIEWED THE
PRIOR WEEK'S OVERALL OFFICE PERFORMANCE. DISTRICT MANAGER MATSUYAMA,
WHILE DISCUSSING THE SUTTER OFFICE'S POOR PERFORMANCE SHOWING IN
RELATION TO OTHER DISTRICT OFFICES IN THE REGION, OBSERVED THAT EMPLOYEE
APPRAISALS IN AT THE SUTTER OFFICE HAD BEEN QUITE HIGH IN THE PAST AND
MATSUYAMA RHETORICALLY QUESTIONED HOW EMPLOYEES AT THE SUTTER OFFICE
COULD BE EVALUATED SO HIGHLY, INDICATING A HIGH LEVEL OF PERFORMANCE,
WHEN THE OFFICE ITSELF WAS RATED VERY LOW. MATSUYAMA STATED THAT IF THE
OFFICE RANKING DID NOT IMPROVE THEN EMPLOYEE APPRAISALS WOULD BE LOWERED
BECAUSE THEY COULD NOT BE JUSTIFIED IN VIEW OF THE LOW OFFICE RANKING.
ONE EMPLOYEE ASKED MATSUYAMA WHAT KIND OF AN APPRAISAL OFFICE.
MATSUYAMA RESPONDED THAT THE APPRAISAL WOULD BE A LOW ONE. THE EMPLOYEE
THEN ASKED WHAT KIND OF AN APPRAISAL WOULD BE A MEDIOCRE CLAIMS
REPRESENTATIVE RECEIVE IF THE INDIVIDUAL WORKED IN A VERY HIGH RANKING
OFFICE. MATSUYAMA TURNED AWAY WITHOUT RESPONDING.
MATSUYAMA'S COMMENTS AT THE MARCH 8, 1979 MEETING LINKING OFFICE
RANKING WITH INDIVIDUAL PERFORMANCE APPRAISALS WAS A DEPARTURE FROM PAST
PRACTICE AT THE SUTTER OFFICE. NO SUCH RELATIONSHIP HAD EXISTED
PREVIOUSLY. ACCORDINGLY, AFTER THE MEETING VARIOUS EMPLOYEES RELATED
THEIR DISMAY TO SEIDENFELD. HOWEVER, ACCORDING TO SEIDENFELD, HE DID
NOT UNDERSTAND OR CONCLUDE FROM MATSUYAMA'S COMMENTS THAT HE WAS
LINKING
INDIVIDUAL APPRAISALS WITH OFFICE RANKING AND ATTEMPTED TO SO INFORM THE
EMPLOYEES. INDEED, SEIDENFELD TESTIFIED THAT AT THIS MEETING HE HEARD
EXACTLY WHAT HE EXPECTED TO HEAR, WHICH WAS THERE WAS NOT GOING TO BE
ANY CONNECTION BETWEEN INDIVIDUAL APPRAISALS AND OFFICE PERFORMANCE. IN
ANY EVENT, SEIDENFELD INFORMED AMBORN THAT SOME EMPLOYEES HAD
MISUNDERSTOOD MATSUYAMA BUT APPARENTLY NO FURTHER INFORMATION WAS
CONVEYED TO THE EMPLOYEES ON THIS SUBJECT.
C. SOCIALIZATION
SOCIALIZATION BETWEEN SUPERVISORS AND NON-SUPERVISORY EMPLOYEES HAD
BEEN FREQUENTLY DISCUSSED BY SEIDENFELD AND AMBORN SINCE AMBORN FIRST
CAME TO THE SUTTER DISTRICT OFFICE IN NOVEMBER 1978. BOTH FELT THAT
SOCIALIZATION WAS OBJECTIONABLE IN THAT CERTAIN INDIVIDUALS HAD RECEIVED
FAVORABLE TREATMENT AT THE EXPENSE OF OTHER EMPLOYEES REGARDING AWARDS,
PROMOTIONS AND EVALUATIONS. INDEED, SEIDENFELD AND AMBORN CONSIDERED
SOME PAST ACTIONS "OUTRAGEOUS".
SOON AFTER MATSUYAMA CAME TO THE SUTTER OFFICE AMBORN TOLD SEIDENFELD
THAT MATSUYAMA WAS GOING TO MEET WITH SUPERVISORS AND TELL THEM NOT TO
SOCIALIZE WITH EMPLOYEES AND THEN MEET WITH EMPLOYEES AND INFORM THEM HE
OBJECTED TO SOCIALIZATION AND WOULD HAVE PROBLEMS ACCEPTING PROMOTION
RECOMMENDATIONS FROM THOSE SUPERVISORS WHO WERE KNOWN TO SOCIALIZE.
SEIDENFELD WAS "VERY HAPPY" THAT THE MATTER WAS GOING TO BE DISCUSSED.
SHORTLY AFTER SEIDENFELD AND AMBORN HAD THE ABOVE CONVERSATION
MATSUYAMA MET WITH THE VARIOUS SUTTER DISTRICT OFFICE SUPERVISORS. AT
THIS MEETING MATSUYAMA ANNOUNCED THAT FRATERNIZATION (SOCIALIZATION)
BETWEEN SUPERVISORS OR MANAGEMENT PERSONNEL AND OTHER EMPLOYEES WOULD
NO
LONGER BE PERMITTED AND IF HE BECAME AWARE OF SUCH SOCIALIZATION, THE
EMPLOYEES INVOLVED WOULD NEVER BE PROMOTED IN HIS DISTRICT. IN RESPONSE
TO QUESTIONS MATSUYAMA INFORMED THE SUPERVISORS THAT THIS POLICY
PRECLUDED SUPERVISORS FROM PARTICIPATION ON THE OFFICE BOWLING TEAM AND
APPLIED TO SOCIALIZATION AFTER THE CLOSE OF THE WORK DAY. PRIOR THERETO
RESPONDENT HAD NO POLICY OR PRACTICE PRECLUDING SOCIALIZATION BETWEEN
SUPERVISION AND UNIT EMPLOYEES.
ON MARCH 22, 1979 MATSUYAMA ADDRESSED VARIOUS SUPERVISORS AND UNIT
EMPLOYEES AT ANOTHER GENERAL STAFF MEETING. AT THIS TIME MATSUYAMA
INDICATED HE HAD RECEIVED COMPLAINTS FROM SOME EMPLOYEES THAT PAST
PROMOTIONS HAD BEEN BASED UPON FAVORITISM SUPERVISORS HAD SHOWN TOWARDS
EMPLOYEES WITH WHOM THEY FRATERNIZED. MATSUYAMA STATED THAT IT WAS
DIFFICULT FOR SUPERVISORS TO BE OBJECTIVE IN MAKING PROMOTION
RECOMMENDATIONS ON EMPLOYEES WITH WHOM THEY SOCIALIZED. MATSUYAMA
INFORMED THE GROUP THAT HE FOUND IT DIFFICULT TO ACCEPT A SUPERVISOR'S
RECOMMENDATION IN THESE CIRCUMSTANCES AND ACCORDINGLY, EMPLOYEES WHO
ENGAGED IN "FRATERNIZATION" WITH SUPERVISORS WOULD NOT BE PROMOTED OR
RECOMMENDED FOR PROMOTION OR TRANSFER. SOME EMPLOYEES ASKED IF
MANAGERIAL AND NON-MANAGERIAL EMPLOYEES COULD ATTEND BIRTHDAY PARTIES,
LUNCHES, RETIREMENT LUNCHES AND DINNERS, AFTER HOURS PARTIES, OR
PARTICIPATE IN BOWLING LEAGUE ACTIVITIES OR SATURDAY SOFTBALL GAMES, ALL
OF WHICH HAD CUSTOMARILY BEEN THE PRACTICE UP TO THAT TIME. MATSUYAMA'S
RESPONSE WAS "NO" TO THE ABOVE INQUIRIES. ONE EMPLOYEE ASKED IF SHE WAS
NOT TO SOCIALIZE AFTER WORK WITH A SUPERVISOR WITH WHOM SHE HAD BEEN A
FRIEND FOR 10 YEARS. MATSUYAMA REPLIED "YES", EMPHASIZING HE DID NOT
WANT FRATERNIZATION BETWEEN SUPERVISORS AND EMPLOYEES. THE EMPLOYEE
PROTESTED CLAIMING HER CIVIL LIBERTIES WERE BEING VIOLATED AND MATSUYAMA
REPLIED THAT NON-FRATERNIZATION WAS HIS POLICY AND SHE WOULD HAVE TO
"DEAL WITH IT."
D. PERFORMANCE APPRAISALS
SUTTER DISTRICT OFFICE EMPLOYEES WERE APPRAISED IN EARLY APRIL 1979.
THE PROCEDURE FOLLOWED IN THAT OFFICE IS FOR THE VARIOUS SUPERVISORS TO
PREPARE AN APPRAISAL ON EACH OF THEIR SUBORDINATES AND THEREAFTER, ALL
APPRAISALS ARE PLACED ON A CHART AND ALL SUPERVISORS COME TOGETHER TO
COMPARE AND COMMENT ON ALL EMPLOYEE APPRAISALS.
NOTHING WAS MENTIONED DURING THE APRIL APPRAISAL SESSIONS RELATING TO
POOR OFFICE PERFORMANCE AND INDIVIDUAL APPRAISALS. HOWEVER, SUPERVISOR
MARTHA LOWERY, CALLED AS A WITNESS BY COUNSEL FOR THE GENERAL COUNSEL,
TESTIFIED THAT DURING THE APRIL APPRAISALS BECAUSE OF DISTRICT MANAGER
MATSUYAMA'S COMMENTS REGARDING LINKING INDIVIDUAL APPRAISALS WITH THE
RANKING OF THE SUTTER OFFICE SHE GAVE LOWER APPRAISALS TO HER
SUBORDINATES THAN SHE HAD GIVEN IN PREVIOUS YEARS. PAMELA COWEN,
ANOTHER SUPERVISOR CALLED AS A WITNESS FOR THE GENERAL COUNSEL,
TESTIFIED THAT ALTHOUGH SHE PERSONALLY DID NOT DOWNGRADE THE TWO
EMPLOYEES SHE APPRAISED, /8/ AN UNSPECIFIED NUMBER OF DOWNGRADINGS OF
APPRAISALS FROM PRIOR YEARS OCCURRED IN APRIL BUT SHE GAVE NO FURTHER
PROBATIVE TESTIMONY ON THIS MATTER. SEIDENFELD, WHO WAS A SUPERVISOR AT
THE TIME OF THE APRIL EVALUATIONS AND BY VIRTUE OF HIS PRIOR POSITION AS
UNION REPRESENTATIVE HAD EXTENSIVE KNOWLEDGE OF THE APPRAISALS GIVEN IN
PREVIOUS YEARS, TESTIFIED THAT THE OVERALL APPRAISALS IN APRIL 1979 WERE
AS HIGH, IF NOT HIGHER, THAN THE PRIOR YEAR, THE LAST APPRAISALS BEING
GIVEN IN OCTOBER 1978. NO OTHER SPECIFIC PROBATIVE EVIDENCE WAS
SUBMITTED ON WHETHER DOWNGRADINGS OCCURRED DURING THE APRIL APPRAISALS
BASED ON MATSUYAMA'S STATEMENTS. /9/
DISCUSSION AND CONCLUSIONS
THE GENERAL COUNSEL CONTENDS THAT RESPONDENT VIOLATED THE STATUTE BY
MAKING CHANGES IN EMPLOYMENT POLICIES REGARDING MATTERS WHICH AFFECTED
EMPLOYEE APPRAISALS, NAMELY "FLEXIBILITY", "OFFICE RANKING" AND
"SOCIALIZATION", AS EXPLAINED ABOVE, WITHOUT AFFORDING THE UNION PRIOR
NOTICE AND AN OPPORTUNITY TO BARGAIN ON THE CHANGES. RESPONDENT
CONTENDS THAT THE GENERAL COUNSEL HAS FAILED TO ESTABLISH THAT A CHANGE
IN CONDITIONS ACTUALLY OCCURRED; THAT, IN ANY EVENT, THE UNION, THROUGH
ITS REPRESENTATIVE, MARC SEIDENFELD, RECEIVED NOTIFICATION OF THE
EMPLOYER'S INTENTIONS REGARDING WHAT WAS TO BE SAID BY MANAGEMENT NOTICE
THEREBY INDICATING ACQUIESCENCE IN SUCH ACTION; AND LASTLY, THE UNION
FILED GRIEVANCES ON THESE MATTERS IN QUESTION AND THEREFORE, AN UNFAIR
LABOR PRACTICE FINDING IS PRECLUDED BY OPERATION OF SECTION 7116(D) OF
THE STATUTE. /10/
A. FLEXIBILITY
WITH REGARD TO THE FEBRUARY 8, 1979 MEETING, DISTRICT MANAGER
MATSUYAMA ESSENTIALLY ANNOUNCED THAT THE DEFINITION TO BE GIVEN TO THE
TERM "FLEXIBILITY", AS USED IN RESPONDENT'S APPRAISALS OF EMPLOYEES, WAS
TO INCLUDE ELEMENTS NOT PREVIOUSLY CONSIDERED WHEN EMPLOYEES WERE BEING
APPRAISED AND EVALUATED I.E. A WILLINGNESS TO PERFORM WORK OUTSIDE OF
THE EMPLOYEES' JOB DESCRIPTION OR AWAY FROM ASSIGNED DUTY STATIONS AND
WORK OVERTIME WHEN REQUESTED. FURTHER, ABSENCES WOULD, ACCORDING TO
MATSUYAMA, NOW BE A CONSIDERATION WHEN AN EMPLOYEE WAS BEING CONSIDERED
FOR PROMOTION. THUS, NEW STANDARDS FOR EMPLOYEE PERFORMANCE WERE
ANNOUNCED AT THE MEETING WHICH STANDARDS MANIFESTED A SUBSTANTIAL
DEPARTURE FROM RESPONDENT'S POLICY IN EFFECT PRIOR THERETO.
MARC SEIDENFELD, BY VIRTUE OF HIS POSITION AS UNION REPRESENTATIVE AT
THE SUTTER OFFICE, COULD BIND THE UNION BY AGREEING TO A CHANGE IN SUCH
POLICY. HOWEVER, PRIOR TO THE FEBRUARY 8 MEETING, WHILE SEIDENFELD KNEW
THAT MATSUYAMA WAS GOING TO DISCUSS RESPONDENT'S MERIT PROMOTION PLAN
AND AGREED THAT SUCH A DISCUSSION WAS DESIRABLE, HE WAS NOT ADVISED THAT
RESPONDENT INTENDED TO CHANGE ITS POLICY IN THIS REGARD. THEREFORE,
SINCE HE HAD NO PRIOR KNOWLEDGE OF PRECISELY WHAT MATSUYAMA WAS GOING TO
SAY AT THE MEETING, SEIDENFELD COULD NOT HAVE AGREED TO THE CHANGE IN
POLICY IN ADVANCE OF THE MEETING NOR CAN ANY SUCH AGREEMENT BE INFERRED
FROM THESE CIRCUMSTANCES.
I FURTHER CONCLUDE THAT SEIDENFELD'S POST MEETING ACTIONS DO NOT
ESTABLISH UNION ACQUIESCENCE WITH THE ANNOUNCED CHANGE IN POLICY.
SEIDENFELD TESTIFIED HE DID NOT UNDERSTAND THAT A POLICY CHANGE HAD BEEN
ANNOUNCED AT THE MEETING AND, AFTER ATTEMPTING TO ASSURE EMPLOYEES OF
THIS, TOLD AMBORN THAT THE EMPLOYEES HAD MISUNDERSTOOD MATSUYAMA. THERE
IS NO EVIDENCE OF AMBORN ATTEMPTING TO CLARIFY THE MATTER AT THAT TIME
OR AT ANY TIME THEREAFTER. IN MY VIEW, THE REASONABLE INFERENCE TO BE
DRAWN FROM THE CIRCUMSTANCES HEREIN IS THAT AT NO TIME WAS THERE A
MEETING OF MINDS BETWEEN THE UNION AND MANAGEMENT WHICH WOULD GIVE RISE
TO AN ACQUIESCENCE BINDING THE UNION TO THE NEW POLICY WHICH MATSUYAMA
ANNOUNCED ON STANDARDS FOR EMPLOYEE PERFORMANCE. /11/
ACCORDINGLY, I CONCLUDE THAT IN THESE CIRCUMSTANCES RESPONDENT'S
FEBRUARY 8, 1979 ANNOUNCED UNILATERAL CHANGE IN POLICY AFFECTING THE
EMPLOYEES' CONDITIONS OF EMPLOYMENT AS SET FORTH ABOVE, CONSTITUTED A
FAILURE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE UNION VIOLATIVE
OF SECTIONS 7116(A)(1) AND (5) OF THE STATUTE. /12/
B. OFFICE RANKING AND INDIVIDUAL PERFORMANCE APPRAISALS
WITH REGARD TO THE ISSUE OF LINKING INDIVIDUAL APPRAISALS WITH THE
RANKING OF THE SUTTER OFFICE, MATSUYAMA ANNOUNCED TO SUPERVISORS IN LATE
FEBRUARY 1979 THAT THE APPRAISALS OF SUPERVISORS WOULD BE LINKED TO THE
OFFICE RANKING. SINCE SUPERVISORS ARE EXCLUDED FROM THE COLLECTIVE
BARGAINING UNIT REPRESENTED BY THE UNION, RESPONDENT WAS FREE TO
UNILATERALLY EFFECTUATE SUCH A CHANGE WITHOUT RUNNING AFOUL OF THE
STATUTE.
HOWEVER, MATSUYAMA'S ANNOUNCEMENT TO EMPLOYEES ON MARCH 8 CONCERNING
LINKING WAS COUCHED IN DIFFERENT TERMS. THUS, MATSUYAMA INFORMED UNIT
EMPLOYEES THAT IF THE OFFICE RANKING DID NOT IMPROVE, THEN EMPLOYEE
APPRAISALS WOULD BE LOWERED, THEREBY IMPOSING A CONDITION PRECEDENT TO
THE LOWERING OF APPRAISALS. NEVERTHELESS, BY THIS STATEMENT MATSUYAMA
ADDED A NEW ELEMENT TO BE CONSIDERED IN DETERMINING AN EMPLOYEE'S
APPRAISAL I.E. THE RANKING OF THE OFFICE, AN ELEMENT WHICH HAD NEVER
BEEN CONSIDERED BEFORE, THEREBY CONSTITUTING A CHANGE FROM RESPONDENT'S
PRIOR POLICY IN APPRAISING EMPLOYEES.
I REJECT RESPONDENT'S CONTENTION THAT THE UNION ACQUIESCED IN THIS
CHANGE. ACCORDING TO SEIDENFELD, PRIOR TO MATSUYAMA'S ANNOUNCEMENT TO
EMPLOYEES ON MARCH 8, 1980 SEIDENFELD AND OPERATION OFFICER AMBORN
AGREED THAT INDIVIDUAL APPRAISALS SHOULD NOT BE LINKED TO OFFICE
RANKING. /13/ SEIDENFELD FURTHER TESTIFIED THAT AFTER THE MARCH 8
MEETING HE DID NOT UNDERSTAND THAT MATSUYAMA HAD DECLARED THAT
APPRAISALS WOULD BE LINKED TO OFFICE RANKING. THUS, SEIDENFELD'S
COMMENTS TO AMBORN AFTER THE MEETING EXPLAINING THAT SOME EMPLOYEES HAD
MISUNDERSTOOD MATSUYAMA CLEARLY DISPELS ANY NOTION OF UNION AGREEMENT OR
ACQUIESCENCE WITH MATSUYAMA'S ANNOUNCED POLICY CHANGE.
ACCORDINGLY, I CONCLUDE THAT MATSUYAMA'S ANNOUNCEMENT ON MARCH 8 THAT
RESPONDENT'S POLICY WHEN APPRAISING INDIVIDUAL EMPLOYEES WOULD
THEREAFTER INCLUDE CONSIDERATION OF THE SUTTER OFFICE'S RANKING AS
COMPARED TO OTHER OFFICES IN THE REGION, IN THESE CIRCUMSTANCES,
CONSTITUTED A UNILATERAL CHANGE AND VIOLATED SECTIONS 7116(A)(1) AND (5)
OF THE STATUTE /14/ I FURTHER CONCLUDE THAT SUPERVISOR MARTHA LOWERY'S
EFFECTUATION OF MATSUYAMA'S POLICY WITH REGARD TO LINKING, AS FOUND
ABOVE, ALSO VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE.
C. SOCIALIZATION
TURNING NOW TO RESPONDENT'S MARCH 22, 1979 MEETING, THE FACTS AS
FOUND ABOVE ESTABLISH THAT MATSUYAMA ANNOUNCED TO EMPLOYEES A NEW POLICY
WHEREBY SOCIALIZATION BETWEEN SUPERVISORY AND NON-SUPERVISORY EMPLOYEES
WAS PROHIBITED UNDER THE PENALTY OF A DENIAL OF FUTURE PROMOTIONS.
HOWEVER, THE EVIDENCE ALSO ESTABLISHES THAT SEIDENFELD, AS UNION
REPRESENTATIVE, WAS IN FULL AGREEMENT WITH MANAGEMENT THAT SOCIALIZATION
RESULTED IN FAVORITISM IN APPRAISALS, PROMOTIONS AND AWARDS AND
THEREFORE, WAS OBJECTIONABLE. SEIDENFELD, SHORTLY AFTER MATSUYAMA CAME
TO THE SUTTER OFFICE AS DISTRICT MANAGER ON JANUARY 19, 1979, WAS
NOTIFIED BY AMBORN THAT MATSUYAMA WAS GOING TO MEET WITH SUPERVISORS AND
NON-SUPERVISORY EMPLOYEES AND INFORM THEM HE OPPOSED SOCIALIZATION AND
WOULD HAVE PROBLEMS ACCEPTING PROMOTION RECOMMENDATIONS FROM
SUPERVISORS
WHO WERE KNOWN TO SOCIALIZE. INDEED, SOON AFTER THE PARTIES AGREED TO
THE NEW POLICY, MATSUYAMA INFORMED HIS SUPERVISORS OF THE POLICY AGAINST
SOCIALIZATION AND HIS INABILITY TO RELY ON SUPERVISORS' RECOMMENDATIONS
UNDER SUCH CIRCUMSTANCES, AS WELL AS THE ADVERSE AFFECT A BREACH OF THE
POLICY WOULD HAVE ON EMPLOYEES WHO WERE RECOMMENDED FOR PROMOTION.
THUS, THE FACTS DISCLOSE THAT: THE UNION, THROUGH SEIDENFELD, WAS
APPRISED THAT MANAGEMENT WAS GOING TO ANNOUNCE A POLICY CHANGE WHICH
WOULD HAVE ADVERSE AFFECTS ON THE PROMOTABILITY OF THOSE EMPLOYEES WHO
SOCIALIZED WITH SUPERVISORS; SEIDENFELD CONCURRED IN THIS APPROACH;
AND RESPONDENT TOOK ACTION CONSISTENT WITH THAT AGREEMENT BY NOTIFYING
ITS SUPERVISORS OF THE NEW POLICY. IN THESE CIRCUMSTANCES I DO NOT FIND
IT SIGNIFICANT THAT RESPONDENT DID NOT IMMEDIATELY ANNOUNCE THE CHANGE
TO ITS EMPLOYEES BUT RATHER, WAITED UNTIL MARCH 22, PERHAPS SIX WEEKS TO
TWO MONTHS AFTER THE CHANGE IN POLICY HAD BEEN AGREED TO BY THE UNION'S
REPRESENTATIVE. /15/
THE FACT THAT AT THE TIME OF THE MARCH 22 ANNOUNCEMENT ON
SOCIALIZATION SEIDENFELD WAS NO LONGER THE UNION REPRESENTATIVE, DOES
NOT CONVINCE ME THAT I SHOULD COME TO A CONTRARY CONCLUSION. THE TERMS
OF THE AGREEMENT HAD ALREADY BEEN SET IN MOTION WHEN MATSUYAMA
ANNOUNCED
THE CHANGE TO THE SUTTER OFFICE SUPERVISORS. /16/ MOREOVER, A UNION,
QUA UNION, OR EMPLOYER, IS BOUND BY THE AGREEMENTS REACHED BY ITS
REPRESENTATIVES WITHOUT REGARD TO THE INDIVIDUAL CONTINUING TO HOLD A
POSITION OF AGENT FOR THAT PARTY, ABSENT UNUSUAL CIRCUMSTANCES WHICH ARE
NOT PRESENT HEREIN.
ACCORDINGLY, IN VIEW OF THE FOREGOING I CONCLUDE THAT THE GENERAL
COUNSEL HAS FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE TAKEN
AS A WHOLE THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE
STATUTE BY ANNOUNCING TO EMPLOYEES ITS CHANGE IN POLICY REGARDING
SOCIALIZATION BETWEEN SUPERVISORS AND NON-SUPERVISORY EMPLOYEES.
D. THE SECTION 7116(D) DEFENSE
RESPONDENT CONTENDS THAT THE UNION HAS FILED GRIEVANCES WITH REGARD
TO THE THREE MEETINGS IN QUESTION AND, PURSUANT TO THE PROVISIONS OF
SECTION 7116(D) OF THE STATUTE, THE UNFAIR LABOR PRACTICE COMPLAINT
HEREIN SHOULD BE DISMISSED. /17/ TO SUPPORT ITS POSITION RESPONDENT
RELIES ON THE TESTIMONY OF GENERAL COUNSEL'S WITNESS DENISE CHUN WHILE
UNDER CROSS-EXAMINATION. MS. CHUN BECAME THE UNION REPRESENTATIVE AT
THE SUTTER OFFICE SUBSEQUENT TO SEIDENFELD'S RESIGNATION FROM THAT POST.
THAT PORTION OF MS. CHUN'S TESTIMONY RELIED UPON BY RESPONDENT IS AS
FOLLOWS:
Q. DID YOU FILE ANY GRIEVANCES AFTER THE MEETINGS IN FEBRUARY OR
MARCH, THE THREE MEETINGS WE ARE TALKING ABOUT HERE?
A. WOULD YOU SPEAK UP, PLEASE?
Q. WERE THERE ANY GRIEVANCES FILED BY YOURSELF AFTER THESE MEETINGS
IN FEBRUARY AND MARCH?
A. AFTER I TOOK OFFICE, YES.
Q. AFTER YOU TOOK OFFICE?
A. YES.
Q. WHEN, WHICH WOULD HAVE BEEN WHEN?
A. LATE APRIL OR EARLY MAY.
HOWEVER, THE COMPLETE CROSS-EXAMINATION OF MS. CHUN ON THIS SUBJECT
CONTINUED:
Q. DO YOU KNOW IF THE UNION EVER DISCUSSED THESE MATTERS WITH
MANAGEMENT, THE MATTERS TALKED ABOUT IN THESE MEETINGS IN FEBRUARY AND
MARCH? DO YOU KNOW IF THE UNION DISCUSSED IT WITH MANAGEMENT?
A. MY UNDERSTANDING IS THAT IT HADN'T BEEN DISCUSSED.
Q. IT HAD NOT BEEN?
A. RIGHT.
Q. DID YOU TALK TO MR. SEIDENFELD ABOUT THIS?
A. NO.
Q. HE WAS YOUR UNION REPRESENTATIVE, IS THAT CORRECT?
A. THAT'S TRUE.
Q. SO IF YOU DID NOT TALK TO HIM HOW DO YOU KNOW IF IT WAS DISCUSSED
OR NOT?
A. THERE IS ANOTHER UNION OFFICIAL IN THE OFFICE AS WELL.
Q. WHO WOULD THAT BE?
A. PAULA DESMOND.
IN MY VIEW, THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT THE ISSUES
RAISED IN THE COMPLAINT HEREIN WERE RAISED UNDER THE GRIEVANCE
PROCEDURE. THUS, THERE IS NO EVIDENCE AS TO THE NATURE OF THE
"GRIEVANCE FILED", OR WHETHER INDEED THE SAME ISSUES WERE RAISED
THEREIN. THEREFORE, I CONCLUDE RESPONDENT HAS FAILED TO SUPPORT ITS
AFFIRMATIVE DEFENSE THAT SECTION 7116(D) APPLIES HEREIN AND THE
CONTENTION IS REJECTED. /18/
REMEDY
THE RECORD CONTAINS EVIDENCE THAT DURING THE APRIL 1979 APPRAISALS
EMPLOYEES UNDER THE SUPERVISION OF SUPERVISOR MARTHA LOWERY WERE
GENERALLY LOWER THAN THOSE GIVEN IN PRIOR YEARS. LOWERY ATTRIBUTED HER
LOWERING OF APPRAISALS TO MANAGEMENT'S STATEMENTS MADE TO HER AND OTHER
SUPERVISORS URGING THEM TO LOWER APPRAISALS BECAUSE OF THE LOW OFFICE
RANKING. IN THESE CIRCUMSTANCES I CONCLUDE THAT AN APPROPRIATE REMEDY
IN THIS MATTER SHOULD INCLUDE REQUIRING RESPONDENT TO REAPPRAISE,
WITHOUT REGARD TO THE OFFICE RANKING, ANY EMPLOYEE WHO WAS UNDER THE
SUPERVISION OF MS. LOWERY WHOSE APRIL 1979 APPRAISAL WAS LOWER THAN THE
APPRAISAL OF THAT EMPLOYEE GIVEN IN OCTOBER 1978.
I FIND THE FACTS INSUFFICIENT TO SUPPORT AN INFERENCE THAT, IN
ADDITION TO LOWERY, OTHER SUPERVISORS WERE INFLUENCED BY MATSUYAMA TO
LOWER APPRAISALS. THUS, SUPERVISOR COWENS, CALLED AS A WITNESS FOR THE
GENERAL COUNSEL, DID NOT LOWER APPRAISALS NOR WAS THERE TESTIMONY FROM
ANY OTHER WITNESS THAT APPRAISALS WERE LOWERED. IN THESE CIRCUMSTANCES
I WOULD REQUIRE THE SUBMISSION BY COUNSEL FOR THE GENERAL COUNSEL OF
ADDITIONAL EVIDENCE IN THE NATURE OF TESTIMONY FROM EMPLOYEES,
SUPERVISORS OR THE SUBMISSION OF ACTUAL APPRAISALS TO RAISE SUCH AN
INFERENCE.
AS TO THE OTHER UNILATERAL CHANGES FOUND TO HAVE CONSTITUTED
VIOLATIONS OF THE STATUTE, THE EVIDENCE IS INSUFFICIENT TO ESTABLISH
THAT THE CHANGES IN RESPONDENT'S POLICIES RESULTED IN ADVERSELY
AFFECTING EMPLOYEE'S APPRAISALS OR PROMOTIONS. THEREFORE, I CONCLUDE
THAT REAPPRAISALS OR SIMILAR REMEDIAL ACTION IS NOT REQUIRED TO FULLY
REMEDY THESE VIOLATIONS OF THE STATUTE.
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTION
7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND THE AUTHORITY ISSUE THE
FOLLOWING:
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS RULES AND
REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS HEREBY ORDERED THAT
DEPARTMENT OF HEALTH AND WELFARE, SOCIAL SECURITY ADMINISTRATION, OFFICE
OF PROGRAM OPERATIONS AND FIELD OPERATIONS, SUTTER DISTRICT OFFICE, SAN
FRANCISCO, CALIFORNIA SHALL: 1. CEASE AND DESIST FROM:
(A) CHANGING POLICIES RELATIVE TO THE DEFINITION TO BE GIVEN TO THE
TERM "FLEXIBILITY", AS USED IN EVALUATING ITS EMPLOYEES, WITHOUT FIRST
AFFORDING THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION (OF WHICH LOCAL 3172 IS A
CONSTITUENT) NOTICE AND AN OPPORTUNITY TO BARGAIN, CONSONANT WITH THE
OBLIGATIONS IMPOSED BY THE STATUTE, CONCERNING ANY PROPOSED CHANGE IN
SUCH POLICIES.
(B) CHANGING POLICIES GOVERNING APPRAISALS OF ITS EMPLOYEES RELATIVE
TO LINKING THOSE APPRAISALS TO THE SUTTER DISTRICT OFFICE'S RANKING WITH
OTHER SOCIAL SECURITY OFFICES IN THE REGION, WITHOUT FIRST AFFORDING THE
COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, SAN FRANCISCO REGION (OF WITH LOCAL 3172 IS A CONSTITUENT)
NOTICE AND AN OPPORTUNITY TO BARGAIN, CONSONANT WITH THE OBLIGATION
IMPOSED BY THE STATUTE, CONCERNING ANY PROPOSED CHANGE IN SUCH POLICIES.
(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) RESCIND THE ANNOUNCED CHANGE IN POLICY RELATIVE TO THE DEFINITION
TO BE GIVEN TO THE TERM "FLEXIBILITY" AS USED IN EVALUATING ITS
EMPLOYEES REPRESENTED BY THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION (OF WHICH LOCAL
3172 IN A CONSTITUENT).
(B) RESCIND THE ANNOUNCED CHANGE IN POLICY GOVERNING APPRAISALS OF
ITS EMPLOYEES RELATIVE TO LINKING TO THE SUTTER DISTRICT OFFICE'S
RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION WITH RESPECT TO
EMPLOYEES REPRESENTED BY THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION (OF WHICH LOCAL
3172 IS A CONSTITUENT).
(C) UPON REQUEST, REAPPRAISE, WITHOUT REGARD TO THE SUTTER DISTRICT
OFFICE'S RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION, ANY
EMPLOYEE WHO WAS UNDER THE SUPERVISION OF MARTHA LOWERY AND WHOSE
APPRAISAL IN APRIL 1979 WAS LOWER THAN THE OCTOBER 1978 APPRAISAL OF
THAT EMPLOYEE.
(D) UPON REQUEST, BARGAIN, CONSONANT WITH THE OBLIGATIONS IMPOSED BY
THE STATUTE, WITH THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION (OF WHICH LOCAL
3172 IS A CONSTITUENT) CONCERNING ANY PROPOSED CHANGE REGARDING THE
DEFINITION TO BE GIVEN TO THE TERM "FLEXIBILITY", AS USED IN EVALUATING
ITS EMPLOYEES, AND LINKING EMPLOYEE APPRAISALS TO THE SUTTER DISTRICT
OFFICE'S RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION.
(E) POST AT ITS SUTTER DISTRICT OFFICE FACILITY LOCATED IN SAN
FRANCISCO, CALIFORNIA, 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 OF THE SUTTER DISTRICT
OFFICE, 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 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.
(F) NOTIFY THE REGIONAL DIRECTOR OF REGION 9, 450 GOLDEN GATE AVENUE,
ROOM 11409, P.O. BOX 36016, SAN FRANCISCO, CA 94102, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: JULY 23, 1980
WASHINGTON, D.C.
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT CHANGE POLICIES RELATIVE TO THE DEFINITION OF
"FLEXIBILITY" AS USED IN EVALUATING EMPLOYEES OR CHANGE POLICIES
RELATIVE TO LINKING EMPLOYEE APPRAISALS TO THE SUTTER DISTRICT OFFICE'S
RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION WITHOUT FIRST
AFFORDING THE COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION, (OF WHICH LOCAL 3172 IS A
CONSTITUENT) NOTICE AND AN OPPORTUNITY TO BARGAIN, CONSONANT WITH THE
OBLIGATIONS IMPOSED BY THE STATUTE, CONCERNING ANY PROPOSED CHANGES IN
SUCH POLICIES.
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 RESCIND THE ANNOUNCED CHANGE IN POLICY RELATIVE TO THE
DEFINITION TO BE GIVEN TO THE TERM "FLEXIBILITY" AS USED IN EVALUATING
EMPLOYEES AND RESCIND THE CHANGE IN POLICY RELATIVE TO LINKING EMPLOYEE
APPRAISALS TO THE SUTTER DISTRICT OFFICE'S RANKING WITH OTHER SOCIAL
SECURITY OFFICES IN THE REGION.
WE WILL, UPON REQUEST, REAPPRAISE, WITHOUT REGARD TO THE SUTTER
DISTRICT OFFICE'S RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE
REGION, ANY EMPLOYEE WHO WAS UNDER THE SUPERVISION OF MARTHA LOWERY AND
WHOSE APPRAISAL IN APRIL 1979 WAS LOWER THAN THE OCTOBER 1978 APPRAISAL
OF THAT EMPLOYEE.
WE WILL, UPON REQUEST, BARGAIN, CONSONANT WITH THE OBLIGATIONS
IMPOSED BY THE STATUTE, WITH THE COUNCIL OF DISTRICT LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION (OF WHICH LOCAL
3172 IS A CONSTITUENT) CONCERNING ANY PROPOSED CHANGE REGARDING THE
DEFINITION TO BE GIVEN TO THE TERM "FLEXIBILITY", AS USED IN EVALUATING
EMPLOYEES, AND LINKING EMPLOYEE APPRAISALS TO THE SUTTER DISTRICT
OFFICE'S RANKING WITH OTHER SOCIAL SECURITY OFFICES IN THE REGION.
(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 OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 9,
WHOSE ADDRESS IS: 450 GOLDEN GATE AVENUE, ROOM 11409, P.O. BOX 36016,
SAN FRANCISCO, CA 94102, AND WHOSE TELEPHONE NUMBER IS: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ WITH THE ESTABLISHMENT OF THE DEPARTMENT OF EDUCATION, THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE WAS REDESIGNATED AS THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES.
/2/ 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.
/3/ SEIDENFELD RESIGNED HIS UNION OFFICE WHEN APPOINTED TO A
SUPERVISORY POSITION WITH RESPONDENT EFFECTIVE MARCH 26, 1979.
/4/ THE FINDINGS OF FACT REGARDING THIS MEETING AND THE MEETINGS OF
MARCH 8 AND MARCH 22, INFRA, GENERALLY REPRESENT A SYNTHESIS OF
TESTIMONY BASED UPON CREDIBILITY RESOLUTIONS NECESSITATED BY THE
PRESENTATION OF DIVERGENT ACCOUNTS OFFERED BY WITNESSES FOR THE GENERAL
COUNSEL AND RESPONDENT. WHILE THERE IS NO DISPUTE AS TO SOME MATTERS,
THERE IS, HOWEVER, A SUBSTANTIAL VARIANCE IN TESTIMONY AS TO THE
SPECIFICS OF VARIOUS STATEMENTS MADE BY MR. MATSUYAMA AT THESE THREE
MEETINGS.
I AM AWARE THAT TESTIMONY AS TO THE DETAILS OF OCCURRENCES MAY VARY
FROM WITNESS TO WITNESS FOR MANY REASONS INCLUDING THE LISTENER'S
ATTENTION, MEMORY AND THE PERSONAL IMPACT A STATEMENT MAY HAVE ON AN
INDIVIDUAL. IN ADDITION, CREDIBILITY FINDINGS AND THE DECISION TO RELY
ON PARTICULAR TESTIMONY MAY ALSO BE DETERMINED BY WHETHER ACTIONS OR
EXPLANATIONS ARE REASONABLE IN THE TOTAL CONTEXT OF THE SITUATION;
WHETHER TESTIMONY IS CLEAR OR VAGUE AND CONCLUSIONARY OR SELF
CONTRADICTORY; OR WHETHER THERE IS A FAILURE TO DENY OR PRESENT
EVIDENCE OR ADEQUATELY EXPLAIN SIGNIFICANT ADVERSE TESTIMONY. IN ANY
EVENT, I WAS PARTICULARLY IMPRESSED AT THE HEARING WITH THE DEMEANOR AND
PRESENTATION OF GENERAL COUNSEL'S WITNESS DENISE CHUN UPON WHOSE
TESTIMONY, WHICH WAS SUPPORTED BY OTHERS, I HAVE RELIED SUBSTANTIALLY IN
REACHING FINDINGS OF FACT REGARDING THE MEETINGS IN QUESTION.
/5/ THE SUTTER DISTRICT OFFICE IS COMPOSED OF APPROXIMATELY 6 TO 8
SUPERVISORS AND ABOUT 100 UNIT EMPLOYEES. MOST SUPERVISORS ARE
RESPONSIBLE FOR 7 TO 15 EMPLOYEES IN THEIR SPECIFIC WORK GROUPS.
/6/ FLEXIBILITY IS DEFINED IN RESPONDENT'S PERSONNEL GUIDE FOR
SUPERVISORS, RATING AID FOR EMPLOYEE APPRAISALS, AS FOLLOWS: THIS ITEM
MEASURES THE EFFECTIVENESS IN WORKING UNDER UNUSUAL CIRCUMSTANCES OR
PRESSURES, AND IN RESPONDING TO PROCEDURAL CHANGES; AND THE DEGREE OF
RESPONSIVENESS TO CONSTRUCTIVE CRITICISM.
/7/ SEIDENFELD RECALLED THAT OVERTIME AND ABSENCES WERE MENTIONED AT
THIS MEETING BUT THE RECORD IS VOID OF ANY OTHER PARTICULARS CONCERNING
HIS RECOLLECTION AS TO WHAT WAS SPECIFICALLY SAID ABOUT THESE SUBJECTS.
/8/ LOWERY TESTIFIED THAT ONE EMPLOYEE SHE APPRAISED WAS SUBSEQUENTLY
DOWNGRADED BY AMBORN. HOWEVER, AMBORN DENIED SUCH ACTION AND NO OTHER
EVIDENCE WAS SUBMITTED ON THIS SUBJECT.
/9/ THERE IS NO EVIDENCE THAT EITHER MATSUYAMA'S DEFINITION OF
"FLEXIBILITY" OR "FRATERNIZATION" WERE CONSIDERED FOR THE PURPOSE OF
EMPLOYEE APPRAISALS OR PROMOTION EVALUATIONS.
/10/ AT THE HEARING RESPONDENT URGED DURING ITS OPENING STATEMENT
THAT UNDER THE COLLECTIVE BARGAINING AGREEMENT BETWEEN RESPONDENT AND
UNION, RESPONDENT WAS NOT OBLIGED TO NEGOTIATE WITH THE UNION, ONLY
CONSULT. NO SUCH CONTENTION IS MADE IN RESPONDENT'S BRIEF NOR IS THERE
ANY REFERENCE IN THE BRIEF TO SPECIFIC CONTRACT LANGUAGE WHICH WOULD
SUPPORT THIS ARGUMENT. ACCORDINGLY, I ASSUME THIS CONTENTION HAS BEEN
ABANDONED. IN ANY EVENT, FROM MY REVIEW OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT, WHICH WAS RECEIVED IN EVIDENCE AT THE HEARING, I
DO NOT FIND THAT THE UNION WAIVED ITS STATUTORY RIGHT TO NEGOTIATE ON
THE MATTERS AT ISSUE HEREIN.
FURTHER, IT IS NOTED THAT NO CONTENTION HAS BEEN RAISED AS TO THE
APPLICABILITY OF SECTION 7106 OF THE STATUTE REGARDING ANY OF THE
MATTERS AT ISSUE HEREIN.
/11/ C. HEADQUARTERS, U.S. ARMY MATERIAL DEVELOPMENT AND READINESS
COMMAND, 8 A/SLMR 240, A/SLMR NO. 994.
/12/ CF. DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION I,
BOSTON, MASSACHUSETTS. 1 FLRA NO. 49; LOUISIANA ARMY NATIONAL GUARD,
NEW ORLEANS, LOUISIANA, 8 A/SLMR 1020, A/SLMR NO. 117; FEDERAL AVIATION
ADMINISTRATION, FAA AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA, 8
A/SLMR 572, A/SLMR NO. 1047.
/13/ THERE IS NO TESTIMONY BY ANY RESPONDENT WITNESS THAT CONTRADICTS
SEIDENFELD'S ACCOUNT REGARDING THIS MATTER.
/14/ ID.
/15/ ALTHOUGH THE EVIDENCE DOES NOT SPECIFICALLY DISCLOSE THAT
SEIDENFELD AGREED WITH AMBORN THAT SOCIALIZATION BETWEEN SUPERVISORS AND
NON-SUPERVISORY EMPLOYEES WOULD ALSO JEOPARDIZE SUPERVISOR'S
RECOMMENDATIONS FOR TRANSFERS, WHICH WAS PART OF MATSUYAMA'S
ANNOUNCEMENT TO EMPLOYEES, SINCE THE THRUST OF THE PARTIES' AGREEMENT
WENT TO THE UNRELIABILITY OF A SOCIALIZING SUPERVISOR'S RECOMMENDATIONS,
I CONCLUDE THAT RECOMMENDATIONS ON TRANSFERS WERE REASONABLY
REPRESENTATIVE.
/16/ CF. VETERANS ADMINISTRATION HOSPITAL, WACO, TEXAS, 6 A/SLMR 580,
A/SLMR NO. 735.
/17/ SECTION 7116(D) PROVIDES, IN RELEVANT PART, THAT " . . . 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."
/18/ CF. INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, 3 FLRA NO.
75.