[ v17 p927 ]
17:0927(122)CA
The decision of the Authority follows:
17 FLRA No. 122
UNITED STATES GOVERNMENT PRINTING OFFICE,
PUBLIC DOCUMENTS DISTRIBUTION CENTER
PUEBLO, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3392
Charging Party
Case No. 7-CA-659
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. The Judge further found that the Respondent had not
engaged in another unfair labor practice alleged in the complaint and
recommended dismissal of that portion of the complaint. Exceptions to a
part of the Judge's Decision were filed by the Respondent, and the
General Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record in this case, the Authority
hereby adopts the Judge's findings and conclusions only to the extent
consistent herewith.
The Judge concluded that the Respondent failed to comply with section
7114(a)(2)(A) of the Statute when it did not provide the Union with an
opportunity to be represented at a meeting on July 10, 1980, between the
first level supervisor of the Receipts and Verification Unit (Dorene Van
Dover) and the four Verification employees, inasmuch as the meeting was
in his view a formal discussion. /1/ In so concluding, the Judge found
that the meeting in question was "formal" in nature, and that the
subject matter of the meeting came within the meaning of section
7114(a)(2)(A) of the Statute as required. The Authority disagrees.
In a subsequently issued decision, Bureau of Government Financial
Operations, Headquarters, 15 FLRA No. 87 (1984), appeal docketed sub
nom. National Treasury Employees Union v. FLRA, No. 84-1493 (D.C. Cir.
Oct. 1, 1984), the Authority reiterated that in order for a union's
right to be represented under section 7114(a)(2)(A) to attach, "all
elements set forth in that section must be found to exist: (1) a
discussion; (2) which is formal; (3) between one or more
representatives of the agency and one or more employees in the unit or
their representatives; /2/ (4) concerning any grievance or any
personnel policy or practices or other general conditions of
employment."
Under the facts presented, the Authority concludes that no formal
discussion took place because the final element reviewed above is not
manifest. With regard to the final element, in finding that the subject
matter of the July 10 meeting concerned "any personnel policy or
practices or other general condition of employment" within the meaning
of section 7114(a)(2)(A) of the Statute, /3/ the Judge stated at pages 9
and 10 of his Decision:
(T)he record clearly indicates that through discussion
initiated by Van Dover, there was an unsuccessful attempt to gain
voluntary employee acceptance of a significant change in the
method of reporting "nonproductive" or "unmeasured time" on the
back of the Verification Production Report. The discussion also
involved an inquiry into the reasons underlying the high
productivity of Verification employees, and statements by Van
Dover as to the potential future impact of high productivity
levels on Verification employees. She noted that if the employees
continued to exceed production standards they would be detailed
out more frequently in the future, and that if Verification
employees did continue to exceed high production levels, there
conceivably could be some impact on the number of positions in the
Unit.
The record reflects that the Public Documents Distribution Center in
Denver, Colorado employs over eighty employees in conducting the mail
order distribution operation for the Respondent. Van Dover supervises
the Receipts and Verification Unit of the Mail Order Processing Section
at the Center. Included among the employees supervised by Van Dover are
the four employees of the Verification Area with whom she met on July
10, 1980.
In Bureau of Government Financial Operations, supra, the Authority
clarified further the meaning of the phrase "concerning any grievance or
any personnel policy or practices or other general condition of
employment," contained in section 7114(a)(2)(A) of the Statute. In this
regard, as relevant herein, the Authority concluded, in discussing the
meaning of "any personnel policy or practices," that such policies and
practices involve "general rules applicable to agency personnel, not
discrete actions taken with respect to individual employees." Further,
in discussing the meaning of "other general condition of employment,"
the Authority concluded "that formal discussions are limited to those
discussions (except grievance meetings) 'which concern conditions of
employment affecting employees in the unit generally.'" (footnote
omitted)
In applying these considerations to the facts in the instant case,
the Authority concludes, contrary to the Judge, that the subject matter
of the meeting did not involve "any personnel policy or practices," or
"other general condition of employment," within the meaning of section
7114(a)(2)(A) of the Statute. The discussion did not involve conditions
of employment affecting employees in the unit generally, but instead
concerned the manner in which four specific employees in one small
subcomponent of the Respondent's operations were reporting their
productivity. Thus, the discussion constituted no more than a routine
monitoring function by management. No other employees in the Receipts
and Verification Unit supervised by Van Dover, or anywhere else within
the Public Documents Distribution Center, were involved in or affected
by the particular inquiry concerning the reporting of productivity by
the four employees at the meeting. Moreover, any further discussion
that ensued at the meeting concerning future details and staffing levels
if productivity levels remained excessively high was speculative in
nature and did not involve any specific personnel policies or practices
of the Respondent. Therefore, the Authority concludes that the subject
matter of the July 10 meeting did not involve a grievance or any
personnel policy or practice or other general condition of employment--
at least one of which must be present as a prerequisite for finding that
the subject matter of the discussion falls within the purview of section
7114(a)(2)(A) of the Statute.
Accordingly, the Authority concludes that the July 10 meeting was not
a formal discussion within the meaning of section 7114(a)(2)(A) of the
Statute inasmuch as the meeting did not concern subject matter within
the purview of section 7114(a)(2)(A). /4/ It follows, therefore,
contrary to the conclusion of the Judge, that Respondent's failure to
provide the Union with an opportunity to be represented at the July 10
meeting was not violative of section 7116(a)(1), (5) and (8) of the
Statute.
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-659 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 8, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Neal Fine, Esquire
Robert F. Green, Esquire
For the Respondent
Gavin K. Lodge, Esquire
For the General Counsel
Mr. Michael R. Hudson
For the 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 referred to as "the
Statute") and the rules and regulations issued thereunder.
The complaint as amended at the hearing alleged that on or about July
10, 1980, the Respondent, acting by and through Mrs. Dorene Van Dover, a
Supervisory Supply Technician, at Respondent's Pueblo, Colorado
facility, violated Sections 7116(a)(1), (5) and (8) of the Statute by
conducting a formal discussion with bargaining unit employees concerning
personnel policies, practices and other general conditions of
employment, as described in Section 7114(a)(2)(A) of the Statute,
without affording the Charging Party (hereinafter also referred to as
"the Union") an opportunity to be represented at such discussion. The
amended complaint also alleged that on or about the same date, the
Respondent, acting by and through Mrs. Van Dover, violated Sections
7116(a)(1) and (5) of the Statute by unilaterally changing terms and
conditions of employment when Mrs. Van Dover changed requirements "for
the reporting of non-productive time" without giving the Union notice of
the change and affording the Union an opportunity to bargain. /5/
Counsel for the Respondent argues that the meeting convened by Mrs.
Van Dover was not a "formal discussion" within the meaning of Section
7114(a)(2)(A), and further that no unilateral change in the terms and
conditions of employment occurred.
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. These have been duly considered. /6/
Findings of Fact
General Information Pertaining to Center Operations
The Public Documents Distribution Center conducts a mail order
distribution operation for the Government Printing Office and other
United States government agencies. /7/ Work is performed by
approximately eighty-two permanent employees. In 1980, the Center
distributed four and one half billion pieces of mail. Since 1977, the
Center has utilized formal production standards to project work loads,
and to justify positions (Tr. 157). Production standards are based on
prior production figures of employees doing the same type of work in a
unit (Tr. 157-158).
Mrs. Van Dover, a supervisor in the Center's Mail Order Processing
Section, was in charge of the Receipts and Verification Unit of the
Section. The Receipts and Verification Unit was housed in one room
which in turn was divided into a Receipts area and a Verification area.
The Receipts area employees received all paid orders for publications
and processed the orders into batches. The batches of paid orders were
then received in the Verification area for further processing.
Productivity was a special concern of Center management and
production employees were required to fill out production reports.
Employees in the Verification area executed Verification Production
Reports daily (Tr. 30, Jt. Exh. 1). Verification Production Reports
were quite detailed and employees were required to account for their
time. Specific types of work activity were described and activities not
directly related to production were also identified, but in more general
terms. The latter category, described in large measure as "unmeasured
time," pertained to activity not relating directly to work performed by
Verification employees (Tr. 51-52).
The Mail Order Processing Section was required to file Manpower
Utilization Reports based in part upon data collected in Verification
Production Reports /8/ submitted by Verification employees. Production
standards imposed on employees in the Receipts and Verification Unit
have gone up since 1977, and employees assigned to the Unit have been
expected to perform more work as a result (Tr. 158).
Managements Concern Relating to Tendency of Verification Employees to
Exceed Production Standards, and Events Leading to July 10, 1980
Meeting.
About two weeks prior to July 10, 1980, Van Dover invited the
attention of the Chief of the Mail Order Processing Section to the fact
that Verification employees were frequently meeting and exceeding one
hundred percent of production standards relating to Verification area
work (Tr. 38, 56). A total of four employees in the Receipts and
Verification Unit were involved. These were Jackie Mitts, Mary Lou
Apodaca, Lucille Hernandez /9/ and Nanette Christenson. Robert Sykes,
Chief of the Section requested Van Dover to convene a meeting of
Verification area employees to discuss the accuracy of Verification
Production Reports (Tr. 67). At the time Sykes was engaged in a study
of production standards on behalf of management as management was
considering an increase in production required of employees. Accuracy
in production reporting was deemed essential in order for Sykes to
perform the task of recommending production standards (Tr. 68). /10/ It
was established that Sykes was concerned over the fact that Verification
area employees were exceeding one hundred percent of their standards,
and he felt that something "could be wrong in the reporting of the (sic)
time" by Verification employees (Tr. 68, 76). Sykes had previously
submitted proposed production standards, but management had asked him to
"refigure" his proposal and to provide "another set of figures" (Tr.
153).
It was made clear that management's concern relating to the
consistently high productivity was the reason for convening the meeting
(Tr. 28, 31). Each time that it happened management was required to
provide a narrative explanation in the Manpower Utilization Report (Tr.
28-29). Van Dover testified that prior to the July 10, 1980 meeting it
was her intention to discuss Verification's record of exceeding
standards with Verification employees (Tr. 29). This discussion was
contemplated as background for management's interest in assuring the
accuracy of employee production reports (Tr. 123).
July 10, 1980 Meeting
Van Dover convened the meeting of the four Verification area
employees on July 10, 1980 (Tr. 130). The meeting lasted about one hour
(Tr. 38-39). Mary Lou Apodaca, one of the four employees was summoned
back to the area from a detail by Van Dover, so that all Verification
employees could attend the meeting (Tr. 29-30). The Union was not
notified of the meeting in advance (Tr. 41). /11/
Van Dover began the meeting by noting that the Verification segment
of the Unit was consistently exceeding production standards imposed by
management, and that she did not know whether the standards were set too
low (Tr. 120). She indicated that management wanted to know why
employees were consistently exceeding the standards (Tr. 86). /12/ As a
result of the discussion concerning the high productivity of
Verification area employees, one employee suggested that perhaps the
standards were not high enough (Tr. 89, 131), at which point Van Dover
responded by saying that she had been unsuccessful in efforts to
persuade higher management officials to increase the standards (Tr. 89,
114). Van Dover's comments concerning high productivity also generated
other employee comment as to the reasons for Verification's high
performance (Tr. 120-121).
Van Dover's main topic of discussion related to management's need for
accuracy in reporting productivity on Verification Production Reports.
She generated a discussion of the methodology utilized by the employees
to compute and record time assigned by them to activities identified in
the report (Tr. 33). The following testimony elicited from Van Dover by
counsel for the General Counsel indicates the nature of the discussion:
Mr. Lodge: You talked also didn't you?
Mrs. Van Dover: I listened too.
. . . .
Mrs. Van Dover: I wanted to hear their ideas and I wanted to
know what's wrong here with the time recording? Are we all doing
the same thing?
Mr. Lodge: Why was the unit exceeding production?
Mrs. Van Dover: True, I wanted to know if we were all
recording it in the same way. (Tr. 33-34)
Some employees exhibited their logbooks or notebooks to indicate
their method of preparing data for the Report (Tr. 37, 58-59). Van
Dover stated: "I really wanted to know how they kept track of their
time. . . . So I was concerned. I felt it was my concern" (Tr. 70-71).
At another point she stated that the meeting was designed to review the
methodology used to gather figures for the Verification Production
Report (Tr. 83).
In large measure the meeting was designed to produce ideas for
improving the accuracy of the Report (Tr. 83, 133). However, at least
one employee, Jackie Mitts, perceived the inquiry as a possible
management suggestion that reports were being falsified. Mrs. Van Dover
denied this, but indicated that it was management's intent to make their
reports more accurate (Tr. 97).
A considerable portion of the discussion related to the treatment of
"unmeasured time," or time not directly associated with production
because "it was easy to use unmeasured time (as a) catchall for any
extra time we might not be able to account for. . . ." (Tr. 89,
149-150). /13/ Although no new production standards were imposed upon
Verification area employees, and although employees were not ordered to
change their method of reporting "non-productive time" or "unmeasured
time," Van Dover did explore new methods of calculating and presenting
such time on the Verification Production Report, and suggested to
employees that they might keep an accurate accounting of unmeasured time
on the back of the Verification Production Report instead of recording
amounts of such time without further explanation (Tr. 124). However,
when Mary Lou Apodaca indicated that she wanted to keep such information
in her own personal notebook, Van Dover indicated that this would be
acceptable to management (Tr. 124-125).
Van Dover's suggestion was in fact erroneously perceived as a
directive by Jackie Mitts, who began to detail in more specific terms on
the back of the Report, exactly how she utilized "unmeasured time" (Tr.
90, 98-99, 103-104). However, the record clearly indicated that
reporting in a more detailed manner was strictly voluntary and not
mandated (Tr. 37, 59, 84, 124-125, 133, 151). There was no showing that
Verification area employees were required to change their method of
reporting time, or that, except for volunteers, employees ever did
report their utilization of time in more detail.
During the course of the meeting management concern over the high
productivity record of Verification employees led to employee
speculation as to whether the Unit would lose a position, speculation as
to who would be transferred out, and/or whether there would be an
increase in the detailing of employees (Tr. 34-35, 59, 88, 109, 115,
122). Van Dover noted that a position would not be "affected at this
time," (Tr. 34), and said that a smaller unit was not then being planned
(Tr. 59-60). However, she acknowledged that it was possible that
continuation of the group's consistently high productivity could lead to
reduction in the size of the unit, the transfer of personnel, or an
increase in detailing (Tr. 88, 109, 115). However, Van Dover indicated
that it was much more likely that there would be an increase in the
practice of detailing employees out of Verification to help in other
work areas (Tr. 36, 65, 121-122, 125, 127, 130-131, 152, 154). The
record disclosed that Verification area employees were ordinarily
detailed out by Van Dover to the Order Preparation Unit or to warehouse
work on an equitable basis involving volunteers or selection from a
roster. Details were considered undesirable by bargaining unit members
in many cases (Tr. 77-78).
A portion of the discussion during the course of the meeting related
to comments made by Jackie Mitts with respect to her complaint that
Verification area employees should be commended for their productivity
rather than accused, and with respect to her inquiring whether
management was in fact requesting that Verification employees slow down
and produce less. Van Dover denied that the meeting was convened to
accuse them or to effect a slow down in their work. She insisted that
the meeting was convened to "assist them in recording their time
properly" (Tr. 36-37), and said that there had to be a reason for
consistently exceeding one hundred percent of their standards (Tr. 87).
/14/
Discussion and Conclusions
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 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 conditions of employment. . . .
Although there is little or no case law specifically construing the
provisions of Section 7114(a)(2)(A), cases construing Section 10(e) of
Executive Order 11491, are relevant since the terminology used in
Sections 10(e) is nearly identical to that utilized in Section
7114(a)(2)(A).
In Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA
No. 32, May 1, 1979, an unfair labor practice case initiated under
Executive Order 11491, the Authority approved the following language
used by the Federal Labor Relations Council in its Lyndon B. Johnson
Space Center (NASA) decision: /11/
The language of the pertinent portion of section 10(e) . . .
makes clear that it is not the intent of the Order to grant to an
exclusive representative a right to be represented in every
discussion between agency management and employees. Rather, such
a right exists only when the discussions are determined to be
formal discussions and concern grievances, personnel policies and
practices, or other matters affecting the general working
conditions of unit employees. (Footnotes omitted.)
The Authority's decision in 1 FLRC No. 32, also adopted the following
Council language from the Council's decision reviewing the Assistant
Secretary's decision in A/SLMR No. 908:
Thus, the discussion or meeting for which representation is
sought must be "formal" in nature and the topic of the meeting
must be one or more of the matters enumerated in the last sentence
of section 10(e), i.e., "grievances, personnel policies and
practices, or other matters affecting general working conditions
of employees in the unit." Both elements must exist for the right
of representation under section 10(e) to accrue either to the
exclusive representative or, derivatively, to the employee
involved.
As to the first element, the question of whether a meeting is
"formal" or informal is essentially a factual determination which,
in our view, is a matter best resolved on a case-by-case basis by
the Assistant Secretary as finder of fact, taking into
consideration and weighing a variety of factors such as: who
called the meeting and for what purpose; whether written notice
was given; where the meeting was held; who attended; whether a
record or notes of the meeting were kept; and what was actually
discussed. (Footnotes omitted).
In the instant case it is determined that the July 10, 1980 meeting
was "formal" within the meaning of Section 7114(a)(2)(A) for a number of
reasons. /16/ Van Dover, as supervisor in charge of the Receipts and
Verification Unit was a representative of the agency, and the discussion
was between a representative of the agency and "one or more employees in
the (bargaining) unit." The meeting was convened by Van Dover at the
request of Section Chief Robert Sykes; both Sykes and Van Dover, two
key management officials were involved in planning the meeting in the
first instance; the meeting lasted about one hour; all Verification
area employees were required to attend; notice of the meeting was given
to Verification area employees; Mary Lou Apodaca, was returned from a
detail by Van Dover in order to make certain that she would attend; and
lastly the subject of the meeting was of considerable concern to
management and directly related to the operation of the Center.
Turning to the second element of Section 7114(a)(2)(A), that is
whether formal discussion at the July 10, 1980 meeting concerned "any
personnel policies or practices or other general conditions of
employment," the record clearly indicates that through discussion
initiated by Van Dover, there was an unsuccessful attempt to gain
voluntary employee acceptance of a significant change in the method of
reporting "nonproductive" or "unmeasured time" on the back of the
Verification Production Report. The discussion also involved an inquiry
into the reasons underlying the high productivity of Verification
employees, and statements by Van Dover as to the potential future impact
of high productivity levels on Verification employees. She noted that
if the employees continued to exceed production standards they would be
detailed out more frequently in the future, and that if Verification
employees did continue to exceed high production levels, there
conceivably could be some impact on the number of positions in the Unit.
The foregoing elements of discussion constituted a "discussion . . .
concerning . . . personnel policies or practices or other general
conditions of employment" within the meaning of Section 7114(a)(2)(A) of
the Statute. /17/
It should be noted that Section 10(e) of Executive Order 11491 was
not construed so narrowly as to encompass only discussions concerning
changes or proposed changes in the terms and conditions of employment.
Internal Revenue Service, Atlanta District Office, Atlanta, Georgia,
A/SLMR No. 1014, 6 FLRC 812 (FLRC No. 78-58 (October 31, 1978)). It
appears that the Authority has taken a similar position in the
interpretation of Section 7114(a)(2)(A). Department of Health,
Education and Welfare, Region IV, Atlanta, Georgia and Department of
Health and Human Services, Region IV, Atlanta, Georgia, supra at Note
12. In this case the record reflects proof of a discussion concerning a
change in the terms and conditions of employment in addition to evidence
establishing mere discussion of the terms and conditions of employment.
The facts presented here resemble analogous factual situations
presented in Internal Revenue Service, Atlanta District Office, Atlanta,
Georgia, supra; Department of the Treasury, Bureau of Alcohol, Tobacco
and Firearms, Midwest Region, Chicago, Illinois, A/SLMR No. 1070, 6 FLRC
920 (FLRC No. 78A-90 (December 6, 1978)); and Department of Health,
Education and Welfare, Social Security Administration, BRSI,
Northeastern Program Service Center, 1 FLRA No. 88 (July 31, 1979). It
is felt that the rules articulated in these cases govern. Accordingly,
it is determined that the facts outlined indicate that the Respondent
failed to comply with the provisions of Section 7114(a)(2)(A). This
failure involved unfair labor practices within the meaning of Sections
7116(a)(1), (5) and (8) of the Statute.
With regard to the alleged change in requirements "for the reporting
of non-productive time," or "unmeasured time," the record clearly
indicates that no such change was ever effectuated. No bargaining
obligation arises when management makes no change in a past practice or
personnel policy. Department of Health, Education and Welfare, Social
Security Administration, BRSI, Northeastern Program Service Center,
supra; Department of Treasury, Internal Revenue Service, Cleveland,
Ohio, 3 FLRA No. 106 (July 17, 1980).
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2423.19(c).
ORDER
Pursuant to Section 2423.29 of the rules and regulations of the
Federal Labor Relations Authority, and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Government Printing Office, Public Documents
Distribution Center, Pueblo, Colorado, shall:
1. Cease and desist from:
(a) Conducting formal discussions between management and unit
employees, or their representatives, concerning personnel policies
or practices, or other matters affecting general conditions of
employment in the unit, without notifying and affording the
American Federation of Government Employees, AFL-CIO, Local 3392,
the exclusive representative of its employees, or any other
exclusive representative of its employees, the opportunity to be
represented at such discussions.
(b) Interfering with, restraining, or coercing its employees in
the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute by failing to notify and afford
the American Federation of Government Employees, AFL-CIO, Local
3392, or any other exclusive representative of its employees, the
opportunity to be represented at formal discussions between
management and unit employees, or employee representatives,
concerning personnel policies or practices, or other matters
affecting general conditions of employment in the unit.
(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 action in order to effectuate the
purpose and policies of the Federal Service Labor-Management Relations
Statute:
(a) Notify the American Federation of Government Employees,
AFL-CIO, Local 3392 of, and afford it the opportunity to be
represented at, formal discussions between management and unit
employees, or employee representatives, concerning personnel
policies or practices, or other matters affecting general
conditions of employment in the unit.
(b) Post at its facilities at the Public Documents Distribution
Center, Pueblo, Colorado, 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 Manager of the Public Documents Distribution Center and shall
be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards, and other
places where notices are customarily posted. Reasonable steps
shall be taken by Respondent 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 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.
LOUIS SCALZO
Administrative Law Judge
Dated: May 27, 1981
Washington, DC
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 conduct formal discussions between management and unit
employees, or their representatives, concerning personnel policies or
practices or other matters affecting general conditions of employment in
the unit, without notifying and affording the American Federation of
Government Employees, AFL-CIO, Local 3392, the exclusive representative
of our employees, or any other exclusive representative of our
employees, the opportunity to be represented at such discussions. WE
WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute by failing to notify and afford the American
Federation of Government Employees, AFL-CIO, Local 3392, or any other
exclusive representative of our employees, the opportunity to be
represented at formal discussions between management and employees, or
employee representatives, concerning personnel policies or practices, or
other matters affecting general conditions of employment in the 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 notify the
American Federation of Government Employees, AFL-CIO, Local 3392, and
afford it the opportunity to be represented at, formal discussions
between management and unit employees or their representatives,
concerning personnel policies or practices, or other matters affecting
general conditions of employment in the 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 or compliance with its provisions, they
may communicate directly with the Regional Director, Region VII of the
Federal Labor Relations Authority, whose address is: Suite 680, City
Center Square, 1100 Main Street, Kansas City, MO 64105; and whose
telephone number is (816) 374-2199.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(a)(2)(A) 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--
(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(.)
/2/ As there appears to be no dispute that the meeting was a
discussion between representatives of the agency and bargaining unit
employees, the Authority concludes that elements 1 and 3 have been met.
/3/ No party alleged, and it does not appear, that the meeting
concerned a grievance within the meaning of section 7114(a)(2)(A) of the
Statute.
/4/ In view of this finding, the Authority does not decide whether
the meeting was formal (element 2).
/5/ During the course of the hearing "non-productive time" was
referred to as "unmeasured time," or time not directly associated with
production work performed by the unit.
/6/ Counsel for the Respondent moved to correct the hearing
transcript as follows:
Page Line Change To
26 5 3 FLRA 687 3 FLRC 697
163 6 manage side manning
Under authority provided in Section 2423.19(r) of the Regulations, 5
C.F.R. 2423.19(r), the motion to correct is granted. The following
additional corrections are also made in the hearing transcript:
Page Line Change To
41 24 objection Jenck's Act
119 9 Union Unit
/7/ The Center bids on mail order distribution contracts offered by
government agencies on a competitive basis and performs distribution
services for such agencies under the terms of contracts negotiated.
/8/ The Manpower Utilization Report reflected the productivity of the
Section, and not individual employee productivity.
/9/ This individual is referred to in the record as Lucille Hernandez
and Priscilla Hernandez. Her correct name was finally reported as
Lucille Priscilla Hernandez.
/10/ The Manager of the Center had the authority to set standards and
Sykes had authority to recommend changes (Tr. 158).
/11/ Although a Union steward was in the room where the meeting was
held, the steward was not notified in advance and did not overhear what
was discussed by those in attendance (Tr. 136).
/12/ Although Van Dover testified that she could not recall bringing
up the subject of employees exceeding production standards relating to
Verification work, the record is clear that she intended to mention this
fact and that she did mention this at the meeting. It was also brought
out that it was common knowledge that the group was then exceeding
productivity standards (Tr. 123, 132).
/13/ Work in this category included activities relating to union
work, worker safety, women's programs, welfare, and equal employment
opportunity matters (Tr. 51-52, 149-150).
/14/ The record reflected no indication whatsoever that the
Respondent was encouraging a slow down. If anything, the evidence shows
that the opposite result was intended.
/15/ National Aeronautics and Space Administration (NASA),
Washington, D.C., and Lyndon B. Johnson Space Center (NASA), Houston,
Texas, A/SLMR No. 457, 3 FLRC 617 (FLRC No. 74A-95 (September 26,
1975)). The Authority's decision in 1 FLRA No. 32, resulted from
Authority review of the Federal Labor Relations Council's decision
remanding a decision of the Assistant Secretary of Labor for
Labor-Management Relations in Department of Defense, U.S. Navy, Norfolk,
Naval Shipyard, A/SLMR No. 908, (FLRC No. 77A-141 (December 28, 1978)).
/16/ See 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 (April 14, 1981).
/17/ The phrase "conditions of employment" is, with exceptions not
pertinent here, defined in Section 7103(14) of the Statute as "personnel
policies, practices and matters, whether established by rule, regulation
or otherwise, affecting working conditions. . . ."