[ v01 p780 ]
01:0780(88)CA
The decision of the Authority follows:
1 FLRA No. 88
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BRSI, NORTHEASTERN
PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Complainant
Assistant Secretary
Case No. 30-08551(CA)
DECISION AND ORDER
ON MARCH 12, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER 11491, AS AMENDED, BY NOT PROPERLY NOTIFYING AND
AFFORDING THE COMPLAINANT AN OPPORTUNITY TO BE REPRESENTED AT A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. THE
ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE RESPONDENT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THIS PORTION
OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER FINDING
A VIOLATION. /1/
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7).
THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF
THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, 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 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. /2/
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER, SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND UNIT
EMPLOYEES, OR THEIR REPRESENTATIVES, CONCERNING PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT, WITHOUT NOTIFYING AND AFFORDING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, AFL-CIO, THE EXCLUSIVE
REPRESENTATION 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 THE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER BY FAILING TO NOTIFY AND
AFFORD AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, AFL-CIO,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, THE OPPORTUNITY
TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1760, AFL-CIO, OF AND AFFORD IT THE OPPORTUNITY TO BE REPRESENTED AT
FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND UNIT EMPLOYEES, AS THEIR
REPRESENTATIVES, CONCERNING PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
(B) POST AT ITS FACILITIES AT THE NORTHEASTERN PROGRAM SERVICE CENTER
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE DIRECTOR OF THE NORTHEASTERN PROGRAM SERVICE
CENTER AND SHALL BE SIGNED BY THE DIRECTOR OF THE NORTHEASTERN PROGRAM
SERVICE CENTER AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE NORTHEASTERN
PROGRAM SERVICE CENTER, BRSI, SOCIAL SECURITY ADMINISTRATION, DEPARTMENT
OF HEALTH, EDUCATION AND WELFARE, SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN
ASSISTANT SECRETARY CASE NO. 30-08551(CA) FOUND NOT TO BE VIOLATIVE OF
THE EXECUTIVE ORDER BE, AND IT HEREBY IS DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 31, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN TURN 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 AND
PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT, WITHOUT NOTIFYING AND AFFORDING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, AFL-CIO, 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 ORDER BY FAILING TO NOTIFY AND
AFFORD THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760,
AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES, OR EMPLOYEES REPRESENTATIVES CONCERNING PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES 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
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1760, AFL-CIO, OF AND AFFORD IT THE OPPORTUNITY TO BE REPRESENTED AT,
FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND UNIT EMPLOYEES OF THEIR
REPRESENTATIVES, CONCERNING PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES 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 THE EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007,
AND WHOSE TELEPHONE NUMBER IS: (212) 399-5508.
JULIAN BERGMAN
LABOR RELATIONS SPECIALIST
HEW, SOCIAL SECURITY ADMINISTRATION
BRSI, NORTHEASTERN PROGRAM SERVICE
CENTER
9605 HORACE HARDING EXPRESSWAY
FLUSHING, NEW YORK 11368
FOR THE RESPONDENT
HERBERT COLLENDER
PRESIDENT, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
LOCAL 1760
233-31 139TH DRIVE
ROSEDALE, NEW YORK 11422
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON OCTOBER 12,
1978 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, NEW YORK REGION, A HEARING
WAS HELD BEFORE THE UNDERSIGNED ON DECEMBER 19, 1978 AT NEW YORK, NEW
YORK.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). IT WAS BASED ON A COMPLAINT FILED ON JUNE
27, 1978 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1760 (HEREIN CALLED COMPLAINANT) AGAINST DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI,
NORTHEASTERN PROGRAM SERVICE CENTER, (HEREIN CALLED RESPONDENT). THE
SAID COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER AS A RESULT OF (A) CONDUCTING A FORMAL DISCUSSION ON MAY 1,
1978 UNILATERALLY WITH ITS BENEFIT AUTHORIZERS TO SET UP A SELECTION
METHOD FOR A 30 DAY ASSIGNMENT OF SAID EMPLOYEES ALL WITHOUT NOTIFYING
COMPLAINANT OR REQUESTING IT TO ATTEND SUCH DISCUSSION; (B) REFUSED AND
FAILED TO BARGAIN WITH COMPLAINANT RE THE PROCEDURES TO BE FOLLOWED ON
SUCH ASSIGNMENTS AS WELL AS THE IMPACT ON UNIT EMPLOYEES. RESPONDENT
FILED A RESPONSE THERETO WHICH WAS DATED JULY 27, 1979 DENYING THAT IT
HAD VIOLATED THE ORDER AND MOVING TO DISMISS THE COMPLAINT. /3/
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES HEREIN COMPLAINANT HAS BEEN, AND STILL IS, THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S NON-SUPERVISORY
EMPLOYEES.
2. INCLUDED IN THE UNIT OF SUCH EMPLOYEES WERE THOSE CLASSIFIED AS
CLAIMS AUTHORIZERS, BENEFIT AUTHORIZERS, TA, AND SUPPORT PERSONNEL. A
CLAIMS AUTHORIZER'S (CA) FUNCTION IS TO ADJUDICATE CLAIMS-RETIREMENT AND
SUVIVOR'S ENTITLEMENTS. A BENEFIT AUTHORIZER (BA) PROCESSES POST
ADJUDICATIVE ACTIONS RE SOCIAL SECURITY CLAIMS.
3. FOR SEVERAL YEARS EMPLOYEES WERE DETAILED OR ASSIGNED TO THE
INQUIRY & EXPEDITE (KNOWN AS I&E) STAFF ON A TEMPORARY BASIS-- USUALLY
30 DAYS-- TO KEEP PROCESS CRITICAL CASES. I&E HANDLED CASES DEEMED
"SENSITIVE" ON THOSE WHICH HAD NOT BEEN PROCESSED FOR A LONG TIME AND
MAY HAVE BEEN THE SUBJECT OF A CONGRESSIONAL INQUIRY. IN THE PAST THERE
HAD NOT BEEN A UNIFORM METHOD OF SELECTING BA'S TO THE AFORESAID DETAIL.
EACH SECTION MANAGER ESTABLISHED A ROSTER, AND SEVERAL MANAGERS
SELECTED THE DETAILEES BASED ON ALPHABETICAL ORDER.
4. IN SEPTEMBER, 1977 EDNA JONES WAS A MANAGER OF MODULE /4/ 3 AT
THE PROGRAM CENTER. SEVERAL BAS APPROACHED HER AND STATED THEY WANTED A
CHANCE TO BE DETAILED TO I&E. JONES SPOKE TO IRWIN BERGER, UNION VICE
PRESIDENT FOR CLAIMS, REGARDING THE MATTER. BERGER INFORMED HER THAT
THE UNION PREFERRED TO ALLOW EMPLOYEES TO VOLUNTEER FOR SUCH
ASSIGNMENTS, BUT SINCE THEY WERE SATISFIED TO BE DETAILED
ALPHABETICALLY, HE WOULD GO ALONG WITH WHAT THE EMPLOYEES WANTED AND NOT
OBJECT TO THAT PROCEDURE. IT WAS ALSO AGREED THAT A TRAINEE OR A NEW
EMPLOYEE WOULD NOT BE DETAILED TO I&E. SHORTLY THEREAFTER BERGER
APPROACHED LOU PALLADINO, WHO ACTED AS SECTION MANAGER FROM APRIL, 1977
UNTIL FEBRUARY, 1978, AND TOLD HIM THAT JONES WAS GOING TO SEND
EMPLOYEES ON DETAIL TO I&E ON AN ALPHABETICAL BASIS. THE UNION OFFICIAL
REMARKED THAT THE UNION USUALLY PREFERRED SENDING VOLUNTEERS BASED ON
INVERSE SENIORITY, BUT THE ALPHABETICAL ORDER WAS ACCEPTABLE SINCE THE
EMPLOYEES WANTED TO FOLLOW THAT PROCEDURE. IN A SUBSEQUENT CONVERSATION
BETWEEN JONES AND BERGER, THE LATTER ADVISED THE MANAGER THAT HE HAD
SPOKEN TO PALLADINO AND ASSENTED TO SELECTING THE DETAILEES
ALPHABETICALLY.
5. ON OCTOBER 21, 1977, PURSUANT TO A MEMO FROM COMPLAINANT TO
RESPONDENT, GEORGE SEKZER WAS DESIGNATED AS THE UNION VICE-PRESIDENT OF
SECTION 1 (WHICH ENCOMPASSED MODULE 4) WITH WHOM RESPONDENT SHOULD
NEGOTIATE AND BARGAIN. SEKZER CONTINUED AS THE UNION REPRESENTATIVE
UNTIL HIS RETIREMENT ON MAY 18, 1978.
6. THE ALPHABETICAL ROTATION SYSTEM IN DETAILING THE BA'S TO I&E
CONTINUED UNTIL FEBRUARY 21, 1978. AT THAT TIME THE QUASI-MODULAR SET
UP WAS CHANGED TO A FULLY MODULIZED ONE, AND SINCE THE CONSOLIDATION
DREW PEOPLE FROM ALL DIFFERENT AREAS, IT WAS DETERMINED THAT THE DETAILS
WERE NOT POSSIBLE ANY LONGER. ACCORDINGLY, THEY WERE SUSPENDED. IN
APRIL, 1978, THE SECTION MANAGER ISSUED A MEMORANDUM TO RESUME THE I&E
DETAILS. PLANS WERE MADE TO START AGAIN ON MAY 1, AND JONES DECIDED TO
USE THE SAME PROCEDURE, I.E., ALPHABETICAL ORDER, AS HAD BEEN USED IN
THE PAST.
7. ON MAY 1, 1978, JONES, WHO WAS MANAGER OF MODULE 4, CALLED THE
BAS TOGETHER (ABOUT 9-10) TO INFORM THEM THAT THE I&E DETAIL HAD BEEN
RESUMED. /5/ IT WAS INTENDED THAT MODULARS 2, 3, 4 IN SECTION 1 WOULD
EACH SEND ONE INDIVIDUAL ON A 30 DAY DETAIL TO I&E. DURING THE MEETING,
WHICH LASTED 5-10 MINUTES, AND AFTER JONES INFORMED THE BA'S OF THE
RESUMPTION OF THE DETAILS, SEVERAL REMARKS WERE MADE BY THE EMPLOYEES.
ONE INDIVIDUAL, A NEW EMPLOYEE, ASKED HOW THE SELECTION WOULD BE MADE.
JONES STATED THEY WOULD GO ACCORDING TO ROTATION IN ALPHABETICAL ORDER,
AS HAD BEEN DONE IN THE PAST. ANOTHER EMPLOYEE SUGGESTED STARTING A NEW
ROSTER AND A THIRD INDIVIDUAL SUGGESTED A VOTE BE TAKEN. AT THAT POINT
JONES STOPPED THE MEETING AND ASKED BRUCE FRIEDMAN, A CLAIMS AUTHORIZER
AND THE TREASURER OF COMPLAINANT, WHO WAS SEATED ABOUT 50 FEET AWAY, TO
JOIN THE MEETING. SHE INVITED THE UNION OFFICER TO PARTICIPATE SINCE
THE SESSION "DEVELOPED INTO WHAT MIGHT HAVE BEEN UNION RELATIONS ON THE
SPOT." FRIEDMAN REFUSED TO JOIN THE MEETING. WHEREUPON JONES TOLD THE
BA THAT, IN RESPECT TO THE DETAILS TO I&E, THEY WOULD PICK UP WHERE THEY
LEFT OFF AND USE THE SAME ROSTER AS PREVIOUSLY. /6/ NO VOTE WAS TAKEN
AS URGED BY ONE EMPLOYEE.
8. DETAILING THE BA TO I&E WHICH RESUMED ON MAY 1, 1978, CONTINUED
FOR ABOUT ONE MONTH THEREAFTER. THE SECTION MANAGER DECIDED THE WORK
LOAD WAS SO LARGE THAT CASES WOULD HAVE TO BE SENT INTO THE MODULE, AND
NO ASSIGNMENTS OR DETAILS HAVE BEEN MADE TO I&E SINCE THAT TIME.
CONCLUSIONS
COMPLAINANT INSISTED THAT THE MEETING HELD ON MAY 1, 1978 BY EDNA
JONES CONSTITUTED A FORMAL DISCUSSION. FURTHER, IT CONTENDS THAT BY
FAILING TO INVITE THE UNION TO ATTEND SAID MEETING, AS WELL AS
INSTITUTING A CHANGE IN THE PRACTICE OF SELECTING BA'S TO BE DETAILED TO
THE I&E STAFF, RESPONDENT REFUSED TO BARGAIN IN VIOLATION OF 19(A)(1)(6)
OF THE ORDER. /7/ ALTHOUGH COMPLAINANT ACKNOWLEDGES THE EMPLOYER HAD
THE RIGHT UNDER SECTION 12(B) OF THE ORDER TO MAKE THE DECISION TO
DETAIL EMPLOYEES, IT MAINTAINS RESPONDENT IS OBLIGED TO BARGAIN RE THE
PROCEDURES TO BE FOLLOWED AND THE IMPACT UPON UNIT EMPLOYEES.
RESPONDENT, IN MAINTAINING THAT IT HAS NOT VIOLATED THE ORDER, MAKES
FOUR PRINCIPAL CONTENTIONS: (1) THE MEETING ON MAY 1, 1978 WAS NOT A
FORMAL DISCUSSION UNDER 10(E) OF THE ORDER, BUT WAS CALLED TO INSTRUCT
EMPLOYEES RE THE RESUMPTION OF THE DETAILS OR ASSIGNMENTS TO I&E STAFF;
(2) IN RESUMING THE DETAILS, RESPONDENT WAS NOT CHANGING ANY EMPLOYMENT
CONDITIONS, AND THUS IT SHOULD NOT BE REQUIRED TO DISCUSS THE MATTER
UNDER 10(E) OR BARGAIN UNDER 19(A)(6); (3) AN INVITATION WAS EXTENDED
TO THE UNION ON MAY 1, 1978 TO ATTEND THE MEETING WHEN JONES ASKED
FRIEDMAN TO "COME CLOSER," AND THUS RESPONDENT FULFILLED ITS OBLIGATION
TO AFFORD AN OPPORTUNITY TO COMPLAINANT TO BE PRESENT THEREAT; (4) THE
UNION HAD, IN FACT , CONSENTED IN SEPTEMBER, 1977 TO THE PROCEDURE RE
SELECTING EMPLOYEES FOR THE DETAILS TO I&E, AND THUS THE EMPLOYER DID
MEET AND CONFER WITH IT AS REQUIRED UNDER THE ORDER.
(1) UNDER SECTION 10(E) OF THE ORDER IT IS MANDATED THAT A UNION,
WHICH IS THE EXCLUSIVE BARGAINING REPRESENTATIVE, BE AFFORDED THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES CONCERNING PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF UNIT EMPLOYEES.
IN DETERMINING WHETHER A MEETING IS PROPERLY CHARACTERIZED AS A
"FORMAL DISCUSSION," THE ASSISTANT SECRETARY HAS DISTINGUISHED BETWEEN
MEETINGS HELD FOR INSTRUCTIONAL PURPOSES AND THOSE DEALING WITH
PERSONNEL POLICIES AND PRACTICES, AND MATTERS AFFECTING WORKING
CONDITIONS. AS TO THE FORMER, IT HAS BEEN HELD THAT SUCH GATHERINGS ARE
NOT FORMAL DISCUSSIONS, ESPECIALLY WHEN CONVENED SOLELY TO DISSEMINATE
INFORMATION NOT CONCERNED WITH CONDITIONS OF EMPLOYMENT. DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, CHICAGO DISTRICT, CHICAGO,
ILLINOIS, A/SLMR NO. 1120. WHERE, HOWEVER, THE DISCUSSION WITH
EMPLOYEES DEAL WITH SUCH ITEMS AS REORGANIZATION OR PERSONNEL
REASSIGNMENT, IT HAS BEEN HELD THAT SUCH MATTERS CONCERN PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING THE GENERAL WORKING
CONDITIONS OF UNIT EMPLOYEES. AS SUCH, THE MEETING IS DEEMED TO BE A
FORMAL DISCUSSION UNDER 10(E). DEPARTMENT OF HEALTH, EDUCATION &
WELFARE, OFFICE OF THE SECRETARY, OFFICE FOR CIVIL RIGHTS, A/SLMR NO.
1145.
RESPONDENT MAINTAINS THAT THE MAY 1 MEETING WITH THE BA'S WAS
INSTRUCTIONAL IN NATURE; THAT ITS PURPOSE WAS MERELY TO ANNOUNCE THE
RESUMPTION OF DETAILS TO I&E; AND THAT SINCE NO "DISCUSSION" OF WORKING
CONDITIONS WAS CONTEMPLATED, IT CANNOT BE LABELED A FORMAL DISCUSSION
WITHIN THE MEANING OF 10(E) OF THE ORDER. I DISAGREE. MEETINGS HELD TO
INFORM EMPLOYEES AS TO THE DISCLOSURE PROVISIONS OF THE TAX REFORM ACT
OF 1977, AS OCCURRED IN THE INTERNAL REVENUE CASE, SUPRA, WERE NOT AIMED
AT DEALING WITH PERSONNEL MATTERS OR CONDITIONS OF EMPLOYMENT. THEY
WERE, IN FACT, CONCERNED WITH IMPARTING INFORMATION RE THE DISCLOSURE
PROVISIONS OF THE SAID ACT. CONTRARIWISE, SUPERVISOR JONES HEREIN
CALLED THE BA'S TOGETHER TO DISCUSS A MATTER DIRECTLY RELATED TO THEIR
WORKING CONDITIONS, I.E., THE DETAILING OR ASSIGNING OF INDIVIDUALS TO
OTHER AREAS, ALBEIT TEMPORARY IN NATURE. THIS, I PERCEIVE, TO BE QUITE
DISTINGUISHABLE FROM MERE INFORMATION ISSUED CONCERNING A STATUTE, AS
DISCUSSED IN THE CITED CASE. ANY DISCUSSIONS, AS HERE, REGARDING
PROCEDURES TO BE INVOLVED BY THE EMPLOYER WHEN IMPLEMENTING THE
ASSIGNMENT OF EMPLOYEES FOR A WORKING DETAILS SEEMS CLEARLY WITHIN THE
LANGUAGE AND SPIRIT OF 10(E). SEE ROCKY MOUNTAIN ARSENAL, DENVER,
COLORADO, A/SLMR NO. 933 INCLUDING A REASSIGNMENT OF EMPLOYEES.
(2) RESPONDENT, HOWEVER, ARGUES THAT THE MEETING ON MAY 1, 1978 WAS
NOT FOR THE PURPOSE OF ANNOUNCING ANY CHANGE IN WORKING CONDITIONS, BUT
MERELY TO ADVISE THE BA'S THAT THE ASSIGNMENT, WHICH HAD BEEN SUSPENDED,
WOULD BE RESUMED. IN THIS CONTENT, IT IS URGED THE MEETING WAS MERELY
TO ISSUE "INSTRUCTION" TO EMPLOYEES. IN INTERNAL REVENUE SERVICE,
ATLANTA DISTRICT OFFICE, ATLANTA, GEORGIA, A/SLMR NO. 1014, THE EMPLOYER
THEREIN ARGUED SIMILARLY THAT A DISCUSSION RE "RESTORATION OF ANNUAL
LEAVE," "OPEN SEASON FOR HEALTH BENEFITS," AND "EMPLOYEE'S
RESPONSIBILITIES IN TIMEKEEPING" DID NOT INVOLVE A CHANGE ON PERSONNEL
POLICIES OR WORKING CONDITIONS. THIS ARGUMENT WAS REJECTED BY THE
ASSISTANT SECRETARY, WHO HELD THAT 10(E) WAS NOT BE VIEWED SO NARROWLY
AS TO ENCOMPASS ONLY DISCUSSIONS CONCERNING CHANGES OR PROPOSED
CHANGES
IN SUCH MATTERS. RATHER DID HE VIEW 10(E) AS REQUIRING THAT AN
EXCLUSIVE REPRESENTATIVE BE AFFORDED AN OPPORTUNITY TO BE REPRESENTED AT
DISCUSSIONS BETWEEN MANAGEMENT AND UNIT EMPLOYEES WHERE THE SUBJECT
MATTER DISCUSSED CONCERNS PERSONNEL POLICIES AND PRACTICES AND WORKING
CONDITIONS OF SUCH EMPLOYEES. EXCLUDING THE REPRESENTATIVE FROM EACH
DISCUSSIONS WOULD RESULT IN BYPASSING IT IN REGARD TO MATTERS FOR WHICH
THE EMPLOYEES CHOSE THE REPRESENTATIVE AS THEIR SPOKESMAN. HEREIN,
UNLESS RESPONDENT DID, IN FACT, AFFORD SUCH OPPORTUNITY TO COMPLAINANT
TO BE REPRESENTED AT THE MAY 1 MEETING, AS IT CONTENDS, I WOULD CONCLUDE
THAT IT HAS NOT FULFILLED ITS OBLIGATION UNDER 10(A) OF THE ORDER.
(3) RESPONDENT CLAIMS THAT SINCE BRUCE FRIEDMAN WAS AN OFFICIAL OF
THE UNION HEREIN ON MAY 1, 1978, AND WAS WORKING IN THE MODULE AT THE
TIME OF THE GATHERING, AN INVITATION BY JONES TO HIM TO PARTICIPATE WAS
EQUATABLE WITH AFFORDING AN OPPORTUNITY TO COMPLAINANT TO BE PRESENT. I
DO NOT AGREE. RESPONDENTS KNEW THAT GEORGE SEKZER WAS THE DESIGNATED
UNION REPRESENTATIVE FOR MODULE 4 AT THE TIME OF THE MEETING. THIS WAS
KNOWN TO RESPONDENT. IN THIS POSTURE, I BELIEVE THAT ANY NOTIFICATION
TO THE COMPLAINANT SHOULD HAVE BEEN DIRECTED BEFORE HAND TO THE UNION
OFFICIAL (SEKZER) WHO CUSTOMARILY ATTENDED FORMAL DISCUSSIONS AND WAS
AUTHORIZED BY THE UNION TO REPRESENT THESE PARTICULAR EMPLOYEES. SEE
INTERNAL REVENUE SERVICE, ATLANTA DISTRICT OFFICE, ATLANTA, GEORGIA,
SUPRA. THE INVITATION TO FRIEDMAN TO "COME CLOSER" WAS NOT, IN MY
OPINION, AN ADEQUATE NOTIFICATION TO COMPLAINANT TO REPRESENT THE BA'S
DURING THE DISCUSSIONS RE THE DETAILING OF THE EMPLOYEES. IT WAS MORE
OF AN AFTERTHOUGHT WHICH ENSUED AFTER QUESTIONS WERE POSED BY
INDIVIDUALS; IT WAS NOT MADE TO THE UNION OFFICIAL CUSTOMARILY PRESENT,
OR AUTHORIZED TO BE SO, AT FORMAL DISCUSSIONS; AND IT SCARCELY AFFORDED
THE COMPLAINANT THE OPPORTUNITY REQUIRED UNDER 10(E).
ACCORDINGLY, AND ON THE BASIS OF THE FOREGOING, I FIND AND CONCLUDE
THAT COMPLAINANT WAS NOT AFFORDED AN OPPORTUNITY TO BE REPRESENTED AT
THE MEETING ON MAY 1, 1978; THAT THIS MEETING WAS A FORMAL DISCUSSION
WITHIN THE MEANING OF 10(E) OF THE ORDER; AND THAT THE FAILURE BY
RESPONDENT TO NOTIFY AND AFFORD COMPLAINANT THE OPPORTUNITY TO BE
REPRESENTED THEREAT CONSTITUTED A VIOLATION OF SECTION 19(A)(1)NAND (6)
OF THE ORDER.
(4) IN RESPECT TO THE RESUMPTION OF THE DETAILS TO I&E ON MAY 1,
1978, COMPLAINANT MAINTAINS THAT RESPONDENT WAS OBLIGED TO BARGAIN WITH
IN RE THE IMPLEMENTATION THEREOF AND THE IMPACT OF SUCH ASSIGNMENTS ON
THE UNIT EMPLOYEES. /8/ IT CONTENDS MANAGEMENT NEVER BARGAINED OVER
THESE ASSIGNMENTS, AND THAT THE LATTER MUST NEGOTIATE WITH COMPLAINANT
OVER THE PROCEDURE TO BE FOLLOWED SO AS TO PERMIT THE UNION TO PROPERLY
REPRESENT WITH EMPLOYEES.
CASES ARE LEGION IN WHICH THE ASSISTANT SECRETARY HAS HELD THAT AN
EMPLOYER IS REQUIRED TO MEET AND CONFER WITH THE BARGAINING
REPRESENTATIVE, IN REGARD TO IMPACT AND IMPLEMENTATION, WHERE IT MAKES
UNILATERAL CHANGES IN OR INSTITUTE NEW CONDITIONS OF EMPLOYMENT.
HOWEVER, AN EXCEPTION TO THIS OBLIGATION IS DECLARED WHEN MANAGEMENT
MAKES NO CHANGE IN A PAST PRACTICE OR PERSONNEL POLICY. THUS, IN
ENVIRONMENTAL PROTECTION AGENCY, ROBERT C. KERR ENVIRONMENTAL RESEARCH
LABORATORY, ADA, OKLAHOMA, A/SLMR NO. 1114, THE RESPONDENT THEREIN HAD,
IN THE PAST, UTILIZED CHEMISTS TO PERFORM CERTAIN TESTS AND ANALYSES.
WHEN, ON A PARTICULAR TOXIC PROJECT, IT ASSIGNED THESE CHEMISTS TO
PERFORM THE SAME TESTS, IT WAS HELD THAT THE EMPLOYER MERELY CONTINUED
THE PAST PRACTICE OF ASSIGNMENTS. SINCE THERE WAS NOT CHANGE IN SUCH
PRACTICES, NO OBLIGATION EXISTED TO BARGAIN ON THE IMPACT AND
IMPLEMENTATION THEREOF. SEE ALSO DEPARTMENT OF THE NAVY, NORFOLK NAVAL
SHIPYARD, A/SLMR NO. 805
IN THE CASE AT BAR RESPONDENT, WHEN IT RESUMED THE DETAILS OF BA'S TO
I&E ON MAY 1, 1978, LIKEWISE CONTINUED ITS PAST PRACTICE OF SELECTING
THESE EMPLOYEES BY ALPHABETICAL ORDER. TO THIS EXTENT, NO CHANGE /9/
OCCURRED IN THE PROCEDURES FOLLOWED BETWEEN SEPTEMBER, 1977 AND
FEBRUARY, 1978. THE RECORD REFLECTS THAT THE SAME ROTATIONAL SYSTEM IN
DETAILING BA'S WAS UTILIZED AS IN THE PAST. IN ORDER TO IMPOSE THIS
PARTICULAR OBLIGATION TO BARGAIN UPON RESPONDENT, IT IS NECESSARY IT BE
ESTABLISHED THAT THE PROCEDURE INVOKED DID DIFFER FROM THE PREVIOUS ONE.
WHERE A COMPLAINANT FAILS TO SUSTAIN ITS BURDEN OF PROOF IN THIS
RESPECT, IT CANNOT BE SAID THAT A RESPONDENT'S CONDUCT, IN UTILIZING
SUCH PROCEDURE, WAS IN DEROGATION OF ITS BARGAINING RESPONSIBILITIES.
U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES, CALIFORNIA, A/SLMR NO.
1066. I AM PERSUADED THAT THE UNION HEREIN HAS FAILED TO DEMONSTRATE
THAT THE PROCEDURES UTILIZED ON MAY 1, 1978, AND THEREAFTER, IN
DETAILING INDIVIDUALS IN MODULE 4 CONSTITUTED A CHANGE IN THE PAST
PRACTICE IN THIS REGARD. ACCORDINGLY, I CONCLUDE THAT THERE WAS NO
OBLIGATION ON MAY 1, 1978 TO BARGAIN OVER THE IMPLEMENTATION AND IMPACT
OF DETAILING BA'S TO I&E STAFF. THUS, I FIND RESPONDENT HAS NOT
VIOLATED SECTION 19(A)(1) AND (6) BY RESUMING THE DETAIL IN MODULE 4 AS
ALLEGED HEREIN. HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS
19(A) (1) AND (6) OF THE ORDER BY FAILING AND REFUSING TO BARGAIN OVER
THE IMPLEMENTATION AND IMPACT OF ITS DECISION TO DETAIL CERTAIN
EMPLOYEES IN MODULE 4 TO THE I&E STAFF, ON AND AFTER MAY 1, 1978. I
SHALL DISMISS THE COMPLAINT AS TO SUCH ALLEGATIONS.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN OTHER CONDUCT WHICH IS
VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE ORDER, I SHALL MAKE THE
FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSES OF EXECUTIVE ORDER
11491, AS AMENDED.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDER THAT THE DEPARTMENT OF HEALTH, EDUCATION &
WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTH EASTERN PROGRAM
SERVICE CENTER, SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND UNIT
EMPLOYEES, OR THEIR REPRESENTATIVES, CONCERNING PERSONNEL POLICIES AND
PRACTICES, ON THE MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT, WITHOUT NOTIFYING AND AFFORDING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE
OF ITS EMPLOYEES, THE OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS.
(B) INTERFERRING WITH, RESTRAINING, OR COERCING THE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER BY FAILING TO NOTIFY AND
AFFORD AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES, OR
EMPLOYEE REPRESENTATIVES CONCERNING PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT.
(C) IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760 OF
AND AFFORD IT THE OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS
BETWEEN MANAGEMENT AND UNIT EMPLOYEES, AS THEIR REPRESENTATIVES,
CONCERNING PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
(B) POST AT ITS FACILITIES AT THE NORTH EASTERN PROGRAM CENTER
ASPECTS OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE SIGNED BY THE DIRECTOR OF THE NORTHEASTERN
PROGRAM CENTER AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARD AND OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.
THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 283.27 OF THE REGULATIONS, NOTIFY THE FEDERAL
LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 12, 1979
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 EXECUTIVE ORDER 11491, AS AMENDED
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CONDUCT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND UNIT
EMPLOYEES, OR THEIR REPRESENTATIVES, CONCERNING PERSONNEL POLICIES AND
PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT, WITHOUT NOTIFYING AND AFFORDING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, 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 ORDER BY FAILING TO NOTIFY AND
AFFORD THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760 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 AND PRACTICES,
OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES 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
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1760 OF AND AFFORD IT THE OPPORTUNITY TO BE REPRESENTED AT, FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND UNIT EMPLOYEES OR THEIR
REPRESENTATIVES, CONCERNING PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES 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 THE EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, NEW YORK REGIONAL OFFICE, FEDERAL LABOR
RELATIONS AUTHORITY, WHOSE ADDRESS IS ROOM 1751, 26 FEDERAL PLAZA, NEW
YORK, NEW YORK 10007.
/1/ NO EXCEPTIONS WERE FILED BY EITHER PARTY REGARDING THE
ADMINISTRATIVE LAW JUDGE'S DISMISSAL OF THOSE ALLEGATIONS IN THE
COMPLAINT PERTAINING TO THE RESPONDENT'S RESUMPTION OF UNIT EMPLOYEE
DETAILS TO THE INQUIRY AND EXPEDITE STAFF.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ RESPONDENT ALSO MOVED TO DISMISS THE COMPLAINT ON PROCEDURAL
GROUNDS. NO DISPOSITION THEREON APPEARS IN THE FORMAL PAPERS. IN LIGHT
OF THE SUBSEQUENT ISSUANCE OF A NOTICE OF HEARING, THE MOTION IS DEEMED
DENIED.
/4/ A MODULE IS A MINI-SERVICE CENTER WHICH PERFORMS A WHOLE
FUNCTION. IT INCLUDES CA'S, BA'S, CLERKS AND SPECIALISTS. ABOUT 40
EMPLOYEES COMPRISE A MODULE AND ABOUT 42 MODULES COMPRISE THIS PROGRAM
CENTER.
/5/ AT THAT TIME GEORGE SEKZER, A VICE-PRESIDENT OF EMPLOYMENT, WAS
THE DESIGNATED UNION REPRESENTATIVE FOR THAT MODULAR.
/6/ THE RECITED FACTS RE THIS MEETING, AS WELL AS THOSE DEALING WITH
THE CONVERSATION BETWEEN JONES AND BERGER ON SEPTEMBER, 1977, REPRESENT
THE CREDITED VERSIONS OF WHAT OCCURRED IN EACH INSTANCE. THE
UNDERSIGNED ACCEPTS THE TESTIMONY OF JONES, PALLADINO AND EMPLOYEE OLIVE
PARHAM, AS MORE RELIABLE IN REGARD THERETO.
/7/ RESPONDENT CONTENDS THE COMPLAINT, WHILE ALLEGING A VIOLATION OF
SECTION 19(A)(6) BY REFUSING TO BARGAINS RE PROCEDURES AND IMPACT OF THE
DECISION TO DETAIL EMPLOYEES, DOES NOT OBLIGE ALLEGE 10(E) VIOLATION.
IT THEREFORE RESISTS ANY CONSIDERATION OF THIS ISSUE. I DEEM THE
COMPLAINANT'S ALLEGATION SUFFICIENTLY BROAD TO ENCOMPASS AN ALLEGED
FAILURE BY RESPONDENT TO AFFORD UNION REPRESENTATION AT THE MEETING ON
MAY 1,1978.
/8/ SINCE COMPLAINANT DOES NOT ALLEGE A VIOLATION BASED ON ANY
CONDUCT OCCURRING IN SEPTEMBER, 1977 I DENY THE MOTION TO DISMISS THE
COMPLAINT UNDER SECTIONS 203.2(A)(2) AND 203.2(B)(3) OF THE REGULATIONS.
/9/ IT MIGHT BE CLAIMED THAT THE RESUMPTION OF DETAILS IN MODULE 4 ON
MAY 1, 1978 WAS A "CHANGE" FROM THE ABSENCE OR ON DISCONTINUANCE HEREOF
SEVERAL MONTHS EARLIER. HOWEVER, I CONSTRUE "CHANGE" AS ENVISIONING AN
ALTERATION OF PRIOR PRACTICE OR PROCEDURE RATHER THAN RESTARTING THE
SAME PRACTICE AFTER A SUSPENSION THEREOF.