Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Chicago, Illinois Region and American Federation of Government Employees, AFL-CIO (Authority decision, August 10, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A Social Security Administration supervisor in the Chicago Region spoke with employees about a teleclaims referral process and, at a separate unit meeting, telephone practices. AFGE alleged that the agency should have given the union notice and an opportunity to attend both meetings as formal discussions. The Authority found the stipulated record lacked enough evidence about formality for either meeting, including details of scheduling, attendance, agendas, and records. It dismissed both complaints because the General Counsel had not proved a formal discussion. The outcome is vacated under the direct Authority case rule: no Judge's decision was under review and the complaints were dismissed.

Decision snapshot

• Authority: Formal discussion rights under 5 U.S.C. § 7114(a)(2)(A).
• Outcome: Both complaints dismissed for lack of proof that the meetings were formal.
• Key point: The record must establish a meeting's formal character before union attendance rights apply.

Full text (FLRA public release)

[ v15 p525 ]

15:0525(110)CA

The decision of the Authority follows:

15 FLRA No. 110

DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION, BALTIMORE,
MARYLAND AND CHICAGO, ILLINOIS REGION
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party

Case Nos. 5-CA-832
5-CA-834

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits, and the parties' contentions, /1/ the Authority finds:

On August 30, 1979, the American Federation of Government Employees, AFL-CIO (the Union) was certified as the exclusive representative of the Respondent's professional and nonprofessional employees at, but not limited to, Respondent's Chicago, Illinois Region.

During the week of October 6, 1980, Eleanor Jordon, Respondent's Operations Supervisor at the Chicago, Illinois Region, held a discussion with six employees of the Rapid Process Unit (RPU). The discussion, lasting no longer than five minutes, was initiated by Ms. Jordon when she went to the area in which the RPU employees work. Ms. Jordon did not sit down and the RPU employees remained at their desks. The subject of the discussion was changes regarding the teleclaims referral process. At the meeting the RPU employees expressed their opinions as to a proposed alternative teleclaims referral process. The meeting was held without providing the Union with notice and an opportunity to be present.

On or about November 12, 1980, at a routinely held Service Representatives' Unit (SRU) meeting, Ms. Jordon raised the subject of telephone practices and procedures. Ms. Jordon brought to the attention of SRU employees a complaint from a member of the public about having to wait a long time on the phone before receiving assistance. She advised employees that if calls were going to take longer than five minutes, the employees should take the individual's name, phone number, and the nature of the problem and call the individual back rather than have the person wait on the phone. Ms. Jordon and the SRU employees then discussed the reasonableness of the five minute guideline. This meeting also was held without providing the Union with notice and an opportunity to be present.

The complaint alleges that Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) /2/ by conducting formal discussions within the meaning of section 7114(a)(2)(A) /3/ of the Statute on or about October 6, 1980 and on or about November 12, 1980 with bargaining unit employees without providing the Union with notice and an opportunity to be present.

Regarding the meeting which occurred during the week of October 6, 1980, with employees of RPU, the Authority concludes that the General Counsel has not met his burden of proving that the meeting was a "formal discussion." /4/ Thus, the stipulated facts establish only that the meeting was not scheduled in advance, was a brief discussion at the desks of the employees involving the Operations Supervisor and six employees of the unit and lasted only five minutes. However, other factors which are necessary to enable the Authority to determine whether the discussion was "formal" in nature are not contained in the stipulated record, for instance: whether the Operations Supervisor is a first-level supervisor or is higher in management; whether the meeting was mandatory or attended by the full complement of employees in the unit; whether a formal agenda was established for the meeting; or whether records or notes of the meeting were kept. Therefore, as to the meeting which occurred with RPU employees, the Authority finds that the General Counsel has failed to establish that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to comply with section 7114(a)(2)(A).

Similarly, the Authority finds that the record does not contain enough specific evidence about the meeting which occurred on or about November 12, 1980, with employees of SRU to enable the Authority to determine whether the meeting was "formal" in nature. Thus, there is no showing, for instance, of whether management representatives other than Ms. Jordon attended the meeting; how long the meeting lasted; how the meeting was called; whether a formal agenda was established for the meeting; whether employee attendance was mandatory; or whether records or notes of the meeting were kept. Therefore, the stipulated record is inadequate to sustain the General Counsel's burden of establishing that the Respondent held a "formal" meeting in violation of section 7116(a)(1), (5) and (8) of the Statute.

ORDER

IT IS HEREBY ORDERED that the complaint in Case Nos. 5-CA-832 and 5-CA-834 be, and it hereby is, dismissed in its entirety.

Issued, Washington, D.C., August 10, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Respondent's brief which was untimely filed has not been considered.

/2/ Sec. 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

. . . .

(8) to otherwise fail or refuse to comply with any provision of this chapter.

/3/ Sec. 7114. Representation rights and duties

. . . .

(a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--

(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment(.)

/4/ With regard to some of the factors considered by the Authority in determining whether a meeting constitutes a formal discussion, see Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115 (1982). See also Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco Region, 10 FLRA 120 (1982); Veterans Administration Medical and Regional Office Center, Cheyenne, Wyoming, 13 FLRA No. 70 (1983); U.S. Department of Housing and Urban Development, 15 FLRA No. 89 (1984); Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984).