[ v19 p762 ]
19:0762(94)CA
The decision of the Authority follows:
19 FLRA No. 94
DEPARTMENT OF DEFENSE
OFFICE OF DEPENDENTS SCHOOLS
Respondent
and
OVERSEAS EDUCATION ASSOCIATION
Charging Party
Case No. 3-CA-30302
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 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 certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. Exceptions to the Judge's Decision were
filed by the General Counsel and the Respondent, and the Respondent
filed an opposition to the General Counsel'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, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The complaint alleged that the Respondent violated section 7116(a)(1)
and (5) of the Statute /1/ by (1) distributing, without prior notice to
the Charging Party (the Union), questionnaires to unit employees which
solicited their opinions on matters relating to their conditions of
employment; and (2) failing and refusing to give the Union an
opportunity to negotiate over the manner of gathering information and
the impact and implementation of its decision to do so.
The Judge concluded that the Respondent's distribution of the
questionnaires to unit employees, standing alone, would not have been
violative of the Statute, but that an accompanying memorandum which
asked for the employees' "suggestions for improvements" constituted a
bypass of the Union's rights in violation of section 7116(a)(1) and (5)
of the Statute. The Judge further concluded, contrary to the General
Counsel's contention, that the Respondent was not under an obligation to
give the Union an opportunity to "negotiate over the manner of gathering
information and the impact and implementation of its decision to gather
the information" irrespective of the validity of the questionnaires.
The Authority adopts the Judge's findings and conclusions except to the
extent that he found an unlawful bypass in the circumstances of this
case.
In Internal Revenue Service (District, Region, National Office Units,
19 FLRA No. 48 (1985), the Authority, in considering whether the
agency's conduct therein in distributing questionnaires to unit
employees constituted an unlawful bypass of the exclusive
representative, stated:
(A)s part of its overall management responsibility to conduct
operations in an effective and efficient manner, an agency may
question employees directly provided that it does not do so in a
way which amounts to attempting to negotiate directly with its
employees concerning matters which are properly bargainable with
its employees' exclusive representative. In this regard, as the
Authority has previously noted, management must have the latitude
to gather information, including opinions, from unit employees to
ensure the efficiency and effectiveness of its operations.
The Authority concluded that the agency's conduct therein did not
constitute an unlawful bypass of the exclusive representative because
the questionnaires were an information gathering mechanism, in
connection with the management function of studying its operations, and
because there was no indication that management had attempted to deal or
negotiate directly with unit employees concerning their conditions of
employment.
In the circumstances of this case, the Authority finds, contrary to
the Judge, that the memorandum accompanying the Respondent's
questionnaires, which asked unit employees for "any suggestions for
improvement," did not constitute an unlawful bypass of the Union in
violation of the Statute. Thus, the memorandum clearly indicated that
the questionnaires were "designed as a tool to evaluate the
(Respondent's) recruitment and appointment process," that such
"evaluation (was) undertaken in order to make (the Agency's) procedures
efficient and informative for the applicant," and that information
received from such survey would not be "discussed with any regional
director, personnel official, or finance official." It is neither
alleged nor shown that the Respondent intended to or did use the
information gained from the questionnaires in a way which would
undermine the status of the exclusive representative. In our opinion,
the questionnaires merely elicited factual information and the views of
newly recruited employees concerning the Respondent's recruitment and
appointment process. Further, the record fails to show that the
Respondent by any other action sought to or did in fact attempt to
negotiate directly with unit employees concerning their conditions of
employment.
Accordingly, the Authority concludes that the General Counsel has
failed to establish an unlawful bypass in violation of section
7116(a)(1) and (5) of the Statute, /2/ and therefore shall order that
the complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-30302 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 16, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-30302
Karen Tramontano, Esquire
For the Charging Party
Donna M. Ditullio, Esquire
For the General Counsel
Mr. Paul Wolfe
For the Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on February 4, 1983, by the Overseas
Education Association (hereinafter called the Union or OEA), a Complaint
and Notice of Hearing was issued on June 17, 1983, by the Regional
Director for Region III, Federal Labor Relations Authority, Washington,
D.C. The Complaint alleges that the Department of Defense, Office of
Dependents Schools (hereinafter called the Respondent), violated
Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (hereinafter called the Statute), by virtue of its
actions in distributing, without prior notice to the Union, a survey
questionnaire to unit employees, which, among other things, "solicited
the employees' views and opinions on matters relating to their
conditions of employment."
A hearing was held in the captioned matter on August 5, 1983, in
Washington, D.C. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on September 6, 1983, which
have been duly considered. /3/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union since, at least, June 22, 1982, has been the certified
exclusive bargaining representative of nonsupervisory professional
school-level employees employed by Respondent's Atlantic Region, Germany
North Region, Germany South Region and Pacific Region. Excluded from
the certified unit are all nonprofessional employees, substitute
teachers, management officials, supervisors and employee described in
Sections 7112(b)(2), (3), (4), (6) and (7) of the Statute.
On October 20, 1982, Respondent, in order to improve its procedures
with respect to processing newly hired teachers assigned to overseas
schools mailed a questionnaire to all newly appointed CONUS (Continental
United States) educators. The covering memorandum and the questionnaire
read as follows:
MEMORANDUM FOR Newly Appointed CONUS Educators
SUBJECT: New Employee Questionnaire
A few months ago you joined the Department of Defense
Dependents Schools (DoDDS) professional staff. By this time you
have undoubtedly formed some definite ideas and impressions about
your processing and work assignment. This questionnaire is
designed as a tool to evaluate the DoDDS recruitment and
appointment process. Such evaluation is undertaken in order to
make our procedures more efficient and informative for the
applicant. Now that you have become a DoDDS employee, we are your
assistance in making the "path" easier for others to follow.
We hope that you will take the time to answer these questions
carefully and that you will not hesitate to give us the benefit of
any suggestions for improvements.
Please record your responses on the answer sheet provided.
Fold the answer sheet in half, staple it, and mail it within 1
week after you receive it to the return address on the back. We
will not discuss individual responses with any regional director,
personnel official, or finance official.
Your prompt attention and cooperation will be greatly
appreciated.
NEW EMPLOYEE QUESTIONNAIRE
PLEASE RECORD YOUR RESPONSES ON THE ATTACHED ANSWER
SHEET
1. Did the questions asked during your interview allow you to
be adequately assessed as an educator and as to your potential to
succeed in an overseas assignment?
A. Yes
B. No
2. In which of the following areas did you need additional
information?
A. Area information, teaching assignment, housing, and living
conditions
B. Sponsor
C. Appointments, allowances, and transportation entitlements
D. Employee benefits
E. Other. Please specify.
3. Were the instructions provided in your pre-appointment
package regarding the processing clear and easy to follow?
A. Yes
B. No. Please specify.
4. Were the staff members from the Office of Dependents
Schools (ODS) recruitment staff helpful and informative with your
questions or problems?
A. Yes
B. No
C. I did not need to contact ODS
5. Were you contacted either telephonically or in writing by
your principal or sponsor prior to departure from the United
States?
A. Yes
B. No
6. Were you met upon arrival by your sponsor or a DoDDS
official?
A. Yes
B. No
7. Did you sponsor assist in completing your overseas
processing; i.e., obtaining your drivers license and I.D. card,
arranging temporary lodging, and finding permanent housing?
A. Yes
B. No
8. Approximately how many times did you contact the stateside
civilian personnel office for information, advice, or assistance?
A. None
B. 1 - 5 times
C. 6 - 10 times
D. 11 - 15 times
E. 16 or more times
9. Approximately how many times did you contact the overseas
personnel office for information, advice, or assistance?
A. None
B. 1 - 5 times
C. 6 - 10 times
D. 11 - 15 times
E. 16 or more times
10. On the basis of your contacts with the stateside personnel
office, how would you describe its service? (This service would
include answering general questions, providing information on
programs affecting you, and assisting you in obtaining help or
answers to questions which required a personnel specialist.)?
A. Excellent
B. Very good
C. Satisfactory
D. Poor
E. Very poor
11. On the basis of your contacts with the overseas personnel
office, how would you describe its service? (This service would
include answering general questions, providing information on
programs affecting you, and assisting you in obtaining help or
answers to questions which required a personnel specialist.)
A. Excellent
B. Very good
C. Satisfactory
D. Poor
E. Very poor
12. Did your supervisor discuss with you your current position
description?
A. Yes
B. No
13. Has your supervisor advised you of the performance
requirements of your job?
A. Yes
B. No
14. Is a copy of the Educator Career Program regulation
available for your review in your work area, and have the
promotional opportunities been explained to you?
A. Yes
B. No
15. Is there a list of installation Equal Employment
Opportunity (EEO) counselors posted in your work area?
A. Yes
B. No
C. Don't Know
16. Were you afforded an opportunity to receive an advance of
pay on arrival overseas?
A. Yes
B. No
17. If YES, did you elect to receive the advance?
A. Yes
B. No
18. Was your first pay check received in a reasonably timely
manner?
A. Yes
B. No
The record established that the questionnaire was distributed to the
newly hired CONUS employees without any prior notice to, or bargaining
with, the Union.
According to Mr. Jack Rollins, President of the Union, various items
encompassed in the questionnaire, namely, employee performance
requirements, educator career program, equal employment opportunity and
advanced pay, are currently the subject of negotiations for a master
agreement. /4/
According to Ms. Merilee Fitzgerald, Chief of Staffing, the 1982
questionnaire was "simply to evaluate the CONUS processing and actually
the entire recruitment appointment process" Ms. Fitzgerald admitted that
the Respondent distributed the 1982 questionnaire without prior notice
to, or bargaining with the Union. In this latter connection, Ms.
Fitzgerald testified that Respondent had distributed a similar
questionnaire in 1981 after receiving permission from Mr. William
Breskin, the Union's Membership Director. /5/ Although not specifically
stated in the record, it appears that Ms. Fitzgerald was of the opinion
that inasmuch as there had been no objection from the Union in
connection with the 1981 questionnaire she would receive no objection to
the 1982 questionnaire from the Union and thus made no attempt to
contact the Union prior to distributing the 1982 questionnaire. The
1982 questionnaire contained two more questions than the 1981
questionnaire, the two additional questions were seventeen and eighteen.
With regard to the 1981 Questionnaire, Mr. Rollins testified, without
contradiction by any party, that only he and Mr. Austin, the Union's
Executive Director, were authorized to receive notices on behalf of the
Union. He further denied ever giving Mr. Breskin any authority to
approve the 1981 questionnaire. Additionally, Mr. Rollins did not
recall having any conversation with Mr. Breskin while Mr. Breskin was in
Iceland and he, Mr. Rollins, was in Europe.
Discussion and Conclusions
The General Counsel takes the position that the Respondent's action
in distributing the questionnaire violated Sections 7116(a)(1) and (5)
of the Statute since such questionnaire solicited the unit employees'
opinions with respect to working conditions and thus bypassed the Union.
The General Counsel further contends that Respondent committed an
additional violation of Sections 7116(a)(1) and (5) of the Statute when
it failed to give the Union prior notice of the questionnaire and the
opportunity to "negotiate over the manner of gathering information and
the impact and implementation of its decision to gather the
information." In support of his position the General Counsel relies
primarily on a number of unreviewed Administrative Law Judges' decision.
Finally, the General Counsel would find the facts of the instant case
to be distinguishable from Kaiserslautern American High School,
Department of Defense Dependents Schools, Germany North Region, 9 FLRA
184, where the Authority refused to find that the distribution of a
questionnaire to unit employees without prior notice to the Union was
violative of the Statute.
The respondent relying primarily on Kaiserslautern American High
School, supra and the Federal Labor Relations Council decision in
Department of the Navy, Naval Air Station, Fallon, Nevada, 3 FLRA 697,
takes the position that questionnaire was a "permissible form of
management communication with bargaining unit employees" which was
neither an attempt to, nor did, undermine the Union. Further, according
to the Respondent, in such circumstances it was under no obligation to
give the Union prior notice and the opportunity to bargain over impact
and the manner of implementation. Additionally, Respondent takes the
position that in view of the lack of objection from the Union in 1981 to
a similar survey, it was under no obligation to seek its approval for
the distribution of the 1982 questionnaire. /6/
In Kaiserslautern American High School, supra, the Authority
concluded that the Respondent therein did not violate the Statute when,
in an attempt to overcome a third party evaluation report charging
Respondent with poor teacher morale at its school, it mailed a
questionnaire to faculty members which read:
Re the NCA report
MY PERSONAL MORALE IN KAHS is:
Normal/Average . . .; Higher than Normal . . .; Lower than
Normal . . . "
In finding that the above quoted questionnaire did not amount to a
bypass of the Union, the Authority stated as follows:
. . . , the Authority concludes that the Respondent was merely
gathering information to enable it to respond to a finding by an
independent agency so that it might overcome an evaluation report
affecting its accreditation. Not all direct communication between
management and its employees is prohibited. See United States
Department of the Air Force, 47th Air Base Group (ATC), Laughlin
Air Force Base, Texas, 4 FLRA No. 65 (1980). See also Department
of Military and Naval Affairs, State of New York, Albany, New
York, 8 FLRA No. 71 (1982). Since the poll herein was simply to
gather information to support the Respondent's independent
accreditation, was reasonably understood to be for such purpose,
and was done in a manner which in no way threatened or promised
benefits to employees or otherwise undermined the Union, the
Authority finds that the General Counsel has failed to establish
unlawful direct dealings by the Respondent with employees over
matters affecting working conditions in violation of Sections
7116(a)(1) and (5).
In both the cases cited by the Authority in support of its decision
the respective administrative law judges, whose decisions were adopted
in toto by the Authority, relied on the criteria set forth by the
Federal Labor Relations Council in Department of the Navy, Naval Air
Station, Fallon, Nevada, FLRC No. 74A-80, 3 FLRC 697 (1975) in
determining whether or not the respective respondents had bypassed the
unions there involved.
In Department of Navy, Naval Air Station, Fallon, Nevada, supra, a
case decided under Executive Order 11491, the Council stated as follows:
In determining whether a communication is violative of the
Order, it must be judged independently and a determination made as
to whether the communication constitutes, for example, an attempt
by agency management to deal or negotiate directly with unit
employees or to threaten or promise benefits to employees. In
reaching this determination, both the content of the communication
and the circumstances surrounding it must be considered. More
specifically, all communications between agency management and
unit employees over matters relating to the collective bargaining
relationship are not violative. Rather communications which, for
example, amount to an attempt to bypass the exclusive
representative and bargain directly with employees, or which urge
employees to put pressure on the representative to take a certain
course of action, or which threaten or promise benefits to
employees are violative of the Order. To the extent that such
communication is permissible, it is immaterial whether such
communication was previously agreed upon by the exclusive
representative and the agency or activity concerning the latter's
right to engage in such communication.
A review of the aforementioned cases, particularly Kaiserslautern and
Department of the Navy, Naval Air Station, Fallon, Nevada, make it clear
that the validity of any communication between management and its
employees turns solely on the circumstances surrounding such
communication. Thus, where the facts and circumstances surrounding the
communication make it clear that the communication was for purposes
other than a potential or contemplated change in working conditions,
such communication, be it a questionnaire or poll, is not violative of
the Statute. However, where the communication is issued under such
circumstances where it can be reasonably concluded that the answers to
such communication could well serve as a predicate for some future
change in terms and conditions of employment such communication loses
its validity and violates the Statute.
Once certified as the exclusive bargaining representative, the Union
becomes the sole spokesman for the unit employees, and as such, is
entitled to be consulted with respect to any questions concerning unit
employees opinions with respect to existing terms and conditions of
employment. Employee dissatisfaction with existing terms and conditions
of employment and presentation of proposals for correcting same is one
of the prime responsibilities of a Union. Allowing management to
independently solicit employee opinions and subsequently propose or
effect changes in working conditions based thereon deprives the
certified union of its Section 7114(a)(1) rights to speak as the
representative for the unit employees.
Applying the above conclusions to the facts of the instant case I
find that the questionnaire here under consideration intruded upon the
representational rights accorded the Union as the exclusive
representative of Respondents employees. In reaching this conclusion I
rely primarily on the second paragraph of the memorandum accompanying
the questionnaire, wherein the Respondent requested the unit employees
not only to take time to answer the questions carefully but also
solicited the employee's "suggestions for improvements." As noted above,
it is the Union which speaks for unit employees, and as such, is the
only person to be consulted with respect suggestions for improvement of
working conditions.
Accordingly, in view of the foregoing, I find that Respondent's
conduct amounted to a bypass of the Union, derogated the Union's status
as the certified representative of the unit employees, and,
consequently, violated Sections 7116(a)(1) and (5) of the Statute.
Further, had there been no solicitation or request for suggestions
attached to the questionnaire, I would find the questionnaire, standing
alone, not to be violative of the Statute. The questionnaire, which was
designed as a tool to evaluate the recruitment and appointment process,
merely elicited facts as to compliance with existing agency policies and
procedures, made no promises of benefits or changes and provided no
opportunity for comments or suggested changes. While it is true as
pointed out by the General Counsel that various subjects encompassed in
the questionnaire, i.e. employee performance standards, educator
counselling program, equal opportunity and advanced pay, were of concern
to the Union and were in fact subsequently put on the bargaining table,
the reference to such subjects on the questionnaire was not to the
substance of the subjects but rather limited to whether the existence of
such programs, standards, etc. had been made known to the newly hired
educators. In such circumstances, the questionnaire, standing alone,
would appear to comport with the standards enunciated by the Authority
in Kaiserslautern American High School, supra, and hence would not be
violative of the Statute.
Finally, contrary to the contention of the General Counsel, I cannot
find that irrespective of the validity of the questionnaire, Respondent
was under an obligation to give the Union the opportunity to "negotiate
over the manner of gathering information and the impact and
implementation of its decision to gather the information."
In Department of Navy, Naval Air Station, Fallon, Nevada, the Council
specifically held that "to the extent that such communication is
permissible, it is immaterial whether such communication was previously
agreed upon by the exclusive representative." Inasmuch as my research
has failed to uncover any decisions of the Authority indicating that the
Authority has implicitly or otherwise decided to overrule the Council's
holding, the Council's decision, pursuant to Section 7135 of the Statute
remains the controlling case precedent in the matter.
Having concluded that the Respondent's conduct in soliciting
suggestions for improvement of the recruitment and appointment process,
without first obtaining the Union's consent, constituted a bypass of the
Union in violation of Sections 7116(a)(1) and (5) of the Statute, it is
hereby recommended that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that the Department of Defense, Office of
Dependents Schools shall:
1. Cease and desist from:
(a) Bypassing the Overseas Education Association, the exclusive
representative of its employees, and dealing directly with unit
employees by soliciting employee's suggestions concerning
personnel policies and practices and matters affecting working
conditions.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effect the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at all facilities wherein unit employees are located,
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by a responsible official of the Department
of Defense, Office of Dependents Schools and shall be posted and
maintained by such official for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The Department
of Defense, Office of Dependents Schools shall take reasonable
steps to insure that such Notices are not altered, defaced, or
covered by any other material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III, Federal
Labor Relations Authority, 1111 18th Street, N.W., Suite 700, P.O.
Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
BURTON S. STEINBERG
Administrative Law Judge
Dated: October 7, 1983
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT bypass the Overseas Education Association, the exclusive
representative of our employees, and deal directly with unit employees
by soliciting employees' suggestions concerning personnel policies
practices and matters affecting working conditions. WE WILL NOT in any
like or related manner interfere with, restrain, or coerce our employees
in the exercise of their rights assured by the Federal Service
Labor-Management Statute.
(Agency/Activity)
Dated: . . . By: (Signature) This Notice must remain posted for sixty
(60) consecutive days from the date of posting and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region III, whose address is 1111
18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758; and whose telephone number is (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
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(.)
/2/ See also Department of Health and Human Services, Social Security
Administration, 19 FLRA No. 56 (1985).
/3/ In the absence of any objection, General Counsel's motion to
correct the transcript is hereby granted.
/4/ The negotiations for a master agreement commenced on December 15,
1982.
/5/ Mr. Breskin, whom I credit, testified that he never discussed the
1981 questionnaire with Ms. Fitzgerald. Further according to Mr.
Breskin, at the time the questionnaire was distributed he was in Iceland
on Union business and he never talked on the telephone with Ms.
Fitzgerald. In support of his testimony, Mr. Breskin offered his
handwritten dairy which set forth the events, telephone calls etc.
involved in his trip to Iceland. Such diary makes no mention of any
telephone conversations during the trip to Ms. Fitzgerald.
/6/ Having credited the testimony of Mr. Breskin to the effect that
no conversations with respect to the 1981 questionnaire were held
between him and Ms. Fitzgerald, I find this latter defense of the
Respondent to be without merit. Moreover, and in any event, the fact
that a previous questionnaire was distributed without any objection from
the Union, does not, standing alone, support a waiver for all subsequent
communications or questions.