NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
August 15, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On October 29, 2003, Administrative Law Judge Eric M. Fine issued the attached decision. The Respondent filed exceptions and a supporting brief, and a reply brief in further support of its exceptions. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.
The central issue in this case is whether the Respondent’s employee complaint procedure, the Staff Complaint Process (SCP), is a labor organization within the meaning of Section 2(5) of the Act. We conclude that it is not.
Background
We begin by reviewing the development of the SCP, its structure, its operation, and its role in conjunction with the unionization effort by employees in the parking services department of the University.2
Following a decision in 1999 by the university chancellor to redesign a longstanding but underutilized and management-dominated complaint handling procedure, a committee of the Respondent’s managers drafted the outline of the SCP. The Respondent’s goal was to “develop a new procedure that is user-friendly, fair to all concerned, trusted by all participants, and that provides timely resolution of workplace complaints.” Accordingly, beginning in early 2002,3 the Respondent held a series of “town meetings” with the nonunion personnel (the intended users)4 to “discuss new procedures for resolving staff complaints about workplace problems” and to seek input from them before finalizing the SCP. With this input from the intended users, the Respondent finally approved the SCP in April. The SCP governing documents specify the types of grievances eligible for processing through the SCP as well as the types of grievances that are not covered.5 Between April and August, the Respondent presented the SCP to the chancellor’s cabinet, deans, and department heads.
The Respondent introduced the SCP in its final form to
employees in early September in a memorandum that described the SCP as “a new
process intended to resolve employee relations issues between nonbargaining
The Respondent announced the implementation of the SCP effective January 3, 2003. At all relevant times, the Respondent has recruited and “validated”7 the volunteer participants and trained them in the operation of the SCP and in advocacy and mediation techniques, using manuals and training programs developed by Respondent’s human resources department (HRD) and other University resources. The SCP operates during paid work time using facilities and supplies provided by the Respondent.
In the meantime, Teamsters Local 317, the
SCP Officials and Participants
Respondent’s HRD plays an active role in the SCP. The staff complaint coordinator (complaint coordinator) is an HRD employee who administers the SCP, coordinates the selection and training of SCP volunteers, and serves as a resource for all parties regarding the SCP and the Respondent’s rules and policies. The vice president, HRD (VP/HRD) supervises the complaint coordinator and, as we discuss below, “has a role in confirming the decisions of the SCP Hearing Panel.” Managers, supervisors, and employees are eligible to serve in the various official positions within the SCP, i.e., as staff advocates, staff mediators, and panel members.9 However, the Respondent instructs its managers to “work with support staff rather than HR or other management to mediate resolution of a complaint.”
The Process
Use of the SCP is at the employees’ option. As a preliminary step to involving the SCP, an aggrieved employee presents his complaint to the complaint coordinator for a determination whether the subject matter falls within SCP jurisdiction. If so, the complaint formally enters the SCP. If the complaint coordinator determines that the complaint falls outside SCP jurisdiction, he refers the determination for review by a three-member “special panel” composed of one HRD representative and two staff members, one of whom must be a supervisor outside of the complainant’s chain of command. The HRD representative is selected by the VP/HRD, and the two staff representatives are randomly drawn from the SCP panel pool.
Informal Stage: In the informal stage, the complainant and the supervisor whose action has given rise to the complaint engage in mediation in an attempt to achieve a settlement. The complainant chooses a staff mediator from the SCP pool. The complainant may seek the assistance of a staff advocate who, at the complainant’s election, can be a SCP pool member or any other employee. The staff advocate assists and supports the complainant throughout this stage of the SCP as an active participant. The staff mediator may, at his discretion, request the participation of up to two higher levels of management if he determines that it would assist in the resolution of the complaint. If there is no settlement, the complainant may request initiation of the formal stage of the SCP.
Formal Stage: At the formal stage, a hearing panel is convened to conduct a hearing, receive evidence from the parties, and issue a written decision. The complaint coordinator randomly selects a three-member hearing panel—a chair and two members—from the SCP pool. The SCP governing documents do not specify the supervisor/nonsupervisor ratio of the panel. However, the VP/HRD testified that he applied a policy that if the complainant is a nonsupervisor, the panel is composed of two nonsupervisors and one supervisor. The staff mediator and staff advocate may attend the hearing but may not actively participate. Following the hearing, the hearing panel chair issues the written decision of the panel and forwards it, with comments, to the VP/HRD. The VP/HRD can either accept the decision or return it once to the hearing panel, along with input, for reconsideration. This request for reconsideration occurs in writing, and the VP/HRD does not have personal contact with the panel members. In reviewing its decision, the panel gives the input from the VP/HRD whatever weight it deems warranted and may even find the input entirely meritless. The panel then submits its final decision in writing to the VP/HRD, who transmits the final decision to the parties. Absent an appeal, the Respondent is bound by this decision.
Appeals Stage: Either party may appeal the decision of the hearing panel based on specified criteria.10 The complaint coordinator randomly selects a three-member review panel from the pool. If the complainant is a non-supervisor, the three members consist of a supervisor and two employees. The review panel may rehear the case in its entirety or limit proceedings to specific issues raised in the appeal. The review panel issues its decision in writing and, just as in the formal stage, forwards the decision to the VP/HRD, who can either confirm the decision or make a written request for reconsideration by the review panel. Thereafter, the panel issues its final decision in writing and provides it to the VP/HRD for transmission to the parties. This final decision is not subject to further review, and it is binding on the Respondent.
At the time of the hearing in this case, limited evidence about the history of complaints under the SCP was available. Only three complaints had been submitted. Two were settled as a result of mediation at the informal stage; the third was rejected for processing by the complaint coordinator because the subject matter did not fall within the jurisdiction of the SCP. Therefore, the record does not contain evidence of how the SCP worked in actual practice at the formal and appeals stages.
Judge’s Decision and Exceptions
At the hearing and on brief, the Respondent admitted that it dominated and assisted the SCP in its formation and administration. Thus, the dispositive issue before us, as it was before the judge, is whether the SCP is a statutory labor organization. If the SCP is a labor organization as contemplated by Section 2(5), it follows that the Respondent violated the Act as alleged.
The judge found that the SCP is a labor organization
within the meaning of Section 2(5). Specifically,
he found that the SCP is a “plan” or “agency” created by the Respondent where
employees participate in a bilateral process with management for the purpose of
resolving employee grievances with their supervisors concerning discipline and
other matters. He further found that the
staff advocates and staff mediators “deal” with management on the complainant’s
behalf, thus, that they perform functions that are representational in
nature. Therefore, he found that the SCP
meets the statutory definition of “labor organization.” He further found that the Respondent violated
Section 8(a)(1) by telling employees during its election campaign to select the
SCP as a cost-free option to the
The Respondent excepts to the judge’s findings in each of these respects. It contends, in sum, that the SCP performs a delegated management function that is strictly adjudicatory in nature. We find merit in the Respondent’s exceptions.
Applicable Legal Principles
The provisions of the Act applicable to the issues in this case are found in Sections 2(5), 8(a)(1), and 8(a)(2):
Section 2(5). The term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
Section 8(a)(1). It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title].
Section 8(a)(2). It shall be an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6 [section 156 of this title], an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.
In Electromation, Inc.,11 the Board established the standard for determining whether the entity that is the object of the employer’s allegedly unlawful conduct is a labor organization within the meaning of Section 2(5) of the Act. In promulgating this standard, the Board reviewed the legislative history of the Act, which establishes that one of the primary purposes of the Act was the abolition of employer-dominated labor organizations. The Board also provided further insight into the meaning and interplay between Sections 2(5) and 8(a)(2) and (1) of the Act.
The Board’s inquiry is two-fold. First, the Board considers whether the entity involved is a “labor organization” under Section 2(5) of the Act. The Board will find that a committee is a labor organization under Section 2(5) if (1) employees participate, (2) the organization exists, at least in part, for the purpose of ‘‘dealing with” employers, (3) these dealings concern conditions of employment or other statutory subjects, such as grievances, labor disputes, wages, rates of pay, or hours of employment, and (4) if an “employee representation committee or plan” is involved, there is evidence that the committee is in some way representing the employees.12 Second, if the organization satisfied those criteria, the Board considers whether the employer has engaged in any of the forms of conduct proscribed by Section 8(a)(2), i.e., domination or interference with the organization’s formation or administration, or unlawful support of the organization.13
The term “dealing with” in Section 2(5) is broader than the term “collective bargaining” and can apply to situations other than the negotiation of a collective-bargaining agreement.14 It contemplates a “bilateral process involving employees and management in order to reach bilateral solutions on the basis of employee-initiated proposals.15 “That ‘bilateral mechanism’ ordinarily entails a pattern or practice in which a group of employees, over time, makes proposals to management, [and] management responds to the proposals by acceptance or rejection by word or deed.”16 On the other hand, “[a]n organization whose purpose is limited to performing essentially a managerial or adjudicative function is not a labor organization under Section 2(5).”17 It should be noted that the “purpose” of an organization is relevant to a Section 2(5) determination of whether the organization is a “labor organization.” By contrast, the “motive” for establishing the organization is not relevant to Section 2(5).18
Analysis
We conclude that SCP is not a labor organization because its purpose is not to “deal with” the employer on terms and conditions of employment.19 Rather, its purpose is limited to an adjudicative function; specifically, to finally resolve the propriety of employer actions against an employee. It does not make proposals to management, and thus there are no management counter-proposals. The panel simply renders a decision as to the propriety of the Employer’s action.20
Although the SCP panel must submit its proposed decision to management for input before its decision is final, the SCP panel gives such input, if any, whatever weight it deems warranted and is not obligated to “get back” to management.
While, in accord with the Respondent’s unwritten policy, a management official sits on any three-member panel convened to consider a grievance filed by a non-supervisory employee, the majority of the panel consists of employees and there is no evidence that the managerial official deals with the two employees as if they were on opposing sides. Rather, it appears that the three persons simply consider the evidence and make a group decision.21
We note that the Board did not find similarly structured
adjudicative entities to be labor organizations in Mercy-Memorial Hospital, 231 NLRB 1108 (1977), and John Ascuaga’s Nugget, supra. In those cases, as here, the committees in
question were vested with final authority to resolve grievances. In John
Ascuaga’s Nugget, the employees council performed a purely adjudicative function
without interacting with management for any purpose other than to render a
final decision on a grievance, and did not recommend changes in terms and conditions
of employment or act as an advocate of employee interests.
In contrast, the Board in Keeler Brass Co., 317 NLRB 1110 (1995), cited by the General Counsel,
found that an employer’s grievance committee that did not have final decisionmaking
authority engaged in “dealing” with the respondent and constituted a labor
organization. There, after the committee
presented conclusions to management, management and the committee “went back
and forth explaining themselves until an acceptable result was achieved”
(namely, the committee’s capitulation to management).
an employee committee receives ‘input’ from management and then independently and finally resolves employment issues. In that case, there is contact between the committee and management, but only as an aid to the committee’s independent authority to render a final decision.
Here, the SCP provides the VP/HRD one opportunity to request reconsideration at the conclusion of both the “formal” (hearing) stage and the appeals stage, after which the SCP must issue the final decision, and management must transmit the SCP’s final decision to the parties regardless of whether it agrees. The HRD’s limited opportunity to request reconsideration, in light of the prompt final decision that must follow, is sufficient to preclude the sort of back and forth that characterized the decisionmaking process in Keeler Brass. Furthermore, while the judge did not find that the SCP has final decisionmaking authority, the SCP documentation clearly shows that it does. At the time of the hearing in this matter, no SCP adjudication had gone beyond the mediation stage. Therefore, the only evidence in the record is that the SCP decision is, indeed, final.
Based on the above, there is no “dealing” between management and the SCP. Accordingly, we find that the SCP is not a labor organization within the meaning of Section 2(5) of the Act.
Conclusion
Since the SCP is not a statutory labor organization, the
Respondent did not violate Section 8(a)(2) and (1) of the Act as alleged by
establishing and maintaining the SCP.
For the same reason, the Respondent did not violate Section 8(a)(1) by
interfering with employee rights to refrain from supporting a “labor
organization.”
ORDER
The complaint is dismissed.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Member Liebman, dissenting.
The Staff Complaint Process is an integrated dispute resolution mechanism. Viewed in the entirety of its operation, the process fulfills the four characteristics of a Section 2(5) labor organization discussed in the majority opinion. Therefore, I dissent and would find the Section 8(a)(1) and (2) violations as alleged.
Dated,
______________________________________
Wilma B. Liebman, Member
National Labor Relations Board
Linda
M. Kowalski, Esq. and
Robert A. Ringler, Esq., for the General Counsel.
William
L Bergan, Esq. and
L. Lawrence Tully, Esq., of
Mairead
E. Conner, Esq., of
DECISION
Statement of the Case
Eric M. Fine,
Administrative Law Judge. This case was
tried in
On the entire
record, including my observation of the demeanor of the witnesses,2 and after considering the briefs filed
by the General Counsel and Respondent, I make the following
Findings of Fact
i. jurisdiction
Respondent, a
private nonprofit University, with its principal location in Syracuse, New
York, has been engaged in the operation of an institution of higher learning
from which it annually derives gross revenues, excluding contributions, in
excess of $1 million, and it annually purchases and receives at its Syracuse
location goods and materials valued in excess of $5000 directly from points
outside the State of New York.
Respondent admits and I find it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and the
ii. alleged unfair labor practices
A. The Formation and Operation of the Staff
Complaint Process
Respondent has 4500 to 5000 benefit eligible employees, 1000 of
whom are faculty and another 750 are represented by a local of the Service
Employees International Union. Neil
Strodel, Respondent’s associate vice president of human resources, testified
that, excluding faculty and union-represented employees, Respondent has about 2300
employees in exempt and nonexempt classifications under the Fair Labor
Standards Act (FLSA) including managers, supervisors, professionals, administrative,
clerical and other hourly employees and they all are covered by the provisions
of the (SCP).
Respondent’s governing body includes a chancellor and the
chancellor’s cabinet, who report to the chancellor. Eleanor Ware, senior vice president of human
services and Government relations, is a member of the chancellor’s
cabinet. Strodel reports to Ware. Strodel is in charge of Respondent’s human
resources department (HRD), which oversees benefits and labor relations for
Respondent’s entire faculty and staff.
There are 35 people employed in HRD, which is divided into five areas,
each with a director who reports to Strodel.
Two of the directors in HRD are: Jack Matson, in staff relations and
recruitment; and Curlene Autrey, in diversity employee relations and problem
resolution.3
Strodel’s testimony reveals that in 1999, the chancellor approved
the decision to develop the SCP to replace an existing employee complaint
procedure which, in Respondent’s view, had been under utilized because it
culminated in a hearing before a management-dominated panel. Strodel, Autrey, Matson, and representatives
of two of Respondent’s senate committees participated in a committee to create
the SCP.
On February 8, 2002, Strodel sent a memo through interuniversity
mail to “Syracuse University Nonbargaining Unit Staff,” in which the recipients
were invited to a “town meeting” to “discuss new procedures for resolving staff
complaints about workplace problems.” It
stated in the memo that the existing procedure has been underutilized and the
chancellor charged HRD to “develop a new procedure that is user-friendly, fair
to all concerned, trusted by all participants, and that provides timely resolution
of workplace complaints.” Strodel stated
in the memo that managers and staff had a stake in workplace problem solving,
and were encouraged to attend one of the town meetings to learn about the new
process and provide input before it is finalized. Alternate town meeting dates were scheduled
in the memo.
The chancellor finally approved the new SCP in April 2002 and on
April 19, Strodel sent a memo to the chancellor’s cabinet discussing the
SCP. Strodel states in the memo that the
SCP was for “resolving complaints lodged by staff against supervisors,” and
that the SCP covers “all nonbargaining unit staff (approximately 2300).” The April 19 memo contains certain bulleted
items, some of which are set forth below:
The new
Process includes an informal and formal procedure, and a review procedure for
hearing appeals.
The
types of complaints covered by the Process and not covered by the Process are
specified.
The
Process is facilitated by the Staff Complaint Coordinator (SCC), an HR
administrator whose duties include providing information on the rights and
responsibilities of the Complainants and Respondents and offering advice and
counsel to all parties, including policy information and interpretation. The SCC will ensure timelines and generally
administer the Process. . . .
Significant
peer involvement is featured through development of a pool of interested staff
to act as Advocates, Mediators, Hearing Panel Members, and Review Panel
Members. (Defined in Appendix I). Advocates provide support for the Complainant
throughout the Process; Mediators facilitate attempts to reach resolution
during the informal phase; Hearing Panel members serve during the formal phase;
and Review Panels hear appeals.
The April 19, 2002 memo goes on to state that:
HR’s role in the new Process is to train, document, communicate,
support, and report on Process activities.
The Associate Vice President for Human Resources has a role in confirming
the decisions of the Hearing Panel in the formal procedure, and of the Review
Panel in the appeals procedure. In cases
where the Associate Vice President disagrees with the decision of a Panel, he
may send it back once for reconsideration, but whatever decision comes from the
panel the second time is binding.
The April 19, 2002 memo also states that: “Managers will work with
support staff rather than HR or other management to mediate resolution of a
complaint.” The memo states that volunteers
would be sought to serve as mediators, panelists, and advocates and the
effective date for the SCP was January 2003.
On August 23, 2002, Strodel sent a memo about the SCP to “Deans,
Directors and Department Heads,” who Strodel testified are “our management
structure.” The information in the
August 23 memo was basically the same as that in Strodel’s April 19 memo to the
chancellor’s cabinet. The August 23 memo
also states, “Consider volunteering yourself.
This new Process depends on volunteerism and we are asking
non-bargaining unit staff at all levels to step forward; in addition, encourage
those in your department to volunteer.”
On September 3, 2002, Strodel sent a memo through inter-university
mail to “All Nonbargaining Unit Staff.”
The memo repeated the information set forth in Strodel’s April 19 and
August 23 memos. The memo described the
SCP as “a new process intended to resolve employee relations issues between nonbargaining
unit University employees (approximately 2300) and their supervisors.” The September 3 memo solicits volunteers for
mediators, panelists, and advocates, and states that a comprehensive plan had
been developed, “for communications, training, and web support.” The memo cites a website where a description
of the SCP could be located and states the goals of the SCP are to be: “user
friendly, fair to all concerned, trusted by all participants, and provide
timely resolution of workplace complaints.”
Respondent held campus-wide meetings in the fall of 2002
concerning the SCP, and Respondent compiled a list of volunteer advocates,
mediators, and panelists for these SCP positions for which Respondent
established eligibility requirements.
Strodel’s testimony reveals that: The 2300 employees covered by the SCP
are split between FLSA exempt and nonexempt classifications including about 850
hourly employees. Over 150 people
volunteered to serve in one or more of the SCP advocate, mediator, and panelist
roles and 106 of the volunteers are nonsupervisory employees and 46 are
supervisors. Strodel testified
supervisors volunteered to participate in all three positions in the SCP and an
employee complainant can choose a supervisor or nonsupervisor as an advocate. Strodel testified that, within the nonsupervisory
volunteers, there are professional, technical, administrative, and hourly
employees.
The SCP is set
forth in a 20-page document with an effective date of January 1, 2003. It states at the outset that, “This process
is intended to resolve complaints arising between University employees and
their supervisors. All nonunion
employees functioning in a supervised or supervisory capacity are subject to
this staff complaint process. This
includes staff, administrators, and supervisors in their supervised or
supervisory capacity.” The SCP states it
includes “an informal procedure that attempts resolution through mediation, and
a formal procedure that reaches final resolution by means of hearing panels
made up of other staff and supervisors. There
is also an appeals procedure.” It states
that, “All supervised and supervisory employees covered by this Process are
encouraged to participate by contributing their paid time at the University to
the implementation of this Process in roles such as mediators, advocates and
Hearing Panel members. . . .” The SCP
sets forth certain requirements for the volunteers to serve in the pool of
panelists, advocates, and mediators. It
states that, “The Senior Vice President for Human Services and Government Relations
shall appoint Pool members for a term of two years following a validation
process undertaken by the Associate Vice President, Human Resources in
coordination with” the SCC.
The SCP
provides, in pertinent part:
1.2 A staff member may bring a support person to any or all of the meetings related to addressing a work-place problem. The support person cannot be an attorney. Staff Advocates . . ., who are trained in conflict resolution techniques are available as resources for Complainants to provide support and guidance throughout the entire process. As another option, the Complainant may choose his/her own support person instead of a Staff Advocate. . . .
1.3 . . . Nothing in this procedure is intended to limit the University’s right to manage and direct its work force and operations, including the University’s right to adopt or alter any rule, policy or practice with advance notice.
1.4 Supervision of the Staff Complaint Process is the responsibility of the Associate Vice President, Human Resources with oversight responsibility by the Sr. Vice President, Human Services & Government Relations. The Diversity and Resolution Processes unit of Human Resources is responsible for the implementation of the Staff Complaint Process.
1.5: The Staff Complaint Process is subject to change from time to time and will be subject to periodic review and modification.
The SCP states
that the SCC “is an HR administrator whose duties include the general
administration of the SCP, including the maintenance of all records, monitoring
of deadlines, statistical reporting of results and execution of all responsibilities”
described in the SCP. One of the
responsibilities of the SCC is, in consultation with the associate vice president
of human resources, to coordinate the selection, training, activities, and
replacement of “Staff Advocates, Staff Mediators, and Hearing Panel members,
using appropriate University and external resources.”
The SCP
provides an employee begins the complaint process by contacting the SCC and if
the SCC:
. . . judges
preliminarily that the complaint is outside the jurisdiction of this Process, a
trained Special Panel . . . consisting of a member from Human Resources plus
two staff members, one of whom is supervisory, will be contacted to decide whether
there is jurisdiction or not. If the
panel determines there is jurisdiction, the complaint will be heard. If the panel determines that there is no
jurisdiction, the SCC will notify the Complainant of the existence of other
alternatives, if any, for recourse.
The SCP states
that the human resources representative on the “special panel” is to be
selected by the associate vice president of human resources. The SCP states that the “special panel” is
charged with determining jurisdiction based on criteria set forth in the SCP,
which delineate items covered and not covered.
Included in matters covered are a variety of disciplinary actions
ranging from documented verbal warnings to dismissals in which the employee,
referred to in the SCP as the complainant, alleges their supervisor, referred
to in the SCP as the respondent, acted inappropriately such as disciplining too
severely or the complainant alleges they were not guilty of the offense. Also included in items covered is an alleged “violation
of a specific University rule, policy or practice.”
If
jurisdiction is found, the SCP requires that the complainant file a “notification
of complaint” form in order to participate in the informal stage of the SCP,
which involves mediation between the complaining employee and their supervisor. The complainant then “must choose a staff mediator,”
with the assistance of the SCC. The SCP
states that staff mediators “are not advocates and do not judge the merits of a
complaint. They act only to do
fact-finding, facilitate attempts at resolution of the problem, and help staff
members involved understand” the SCP.
The SCP states that the complainant is also encouraged to obtain a “Staff
Advocate or other support person (not an attorney) for help and support
throughout this process.” The SCP
states, “The mediator may determine at some point that resolution of the issue
will be assisted by involving up to two additional levels of management. When there are more than three levels of
management in the management chain (including the Respondent) to expedite
matters human resources will determine which two levels of management should be
involved.” The complainant has the
option at the informal stage of the process of signing a complaint termination
form at any time. There is a 20-day time
limit in the informal stage at which point, if there is no resolution, the
complainant can elect to close the complaint and terminate the process; request
an extension of the informal stage if certain conditions are met, or request
initiation of the formal procedure. The
complainant can consult with staff in HRD for assistance “in determining the
best course of action.” If 21 days pass
and the complainant has not elected one of the three aforementioned options the
complaint automatically terminates.
The SCP
provides the complainant may initiate the formal procedure by filing a “request
for hearing” form with the SCC. The
complainant may request help from the mediator and/or the staff advocate in
completing the form. The SCP states that
the SCC will draw the hearing panel chair from the pool of potential panelists,
advocates and mediators (hereafter referred to simply as the pool). The staff mediator, who took the issue
through the informal procedure is required to file with the hearing panel chair,
a written account of the steps taken to attempt informal resolution of the
complaint, and the panel chair provides the complainant and respondent a copy
of the report. The hearing panel chair
sets the hearing date and informs the parties the identity of the other two
panel members and the parties right to request disqualification of any panel
member, including the chair for cause.
The SCP states the staff mediator and the staff advocate or other
support person for the complainant and/or respondent may attend the hearing,
without voice. Following the hearing,
the hearing panel chair issues a written decision, as determined by a panel
majority, based on a preponderance of the evidence.
The SCP states
that, “The Hearing Panel Chair will forward a copy of the hearing decision and
written comments to the Associate Vice President, Human Resources. The Associate Vice President can either
confirm the decision, or return it once to the panel, . . ., for further
review. In the event the Associate Vice
President returns the decision for further review, the Panel shall then have
five business days to review it and return its final decision to the Associate
Vice President.” The SCP states that the
“Associate Vice President, Human Resources will issue to all parties in writing
the disposition of the complaint within five business days of the receipt of
the final decision.”
The SCP
provides that either party may appeal the decision of the hearing panel based
on a specified criteria such as “new evidence,” “procedural error,” “errors in
interpretation” of Respondent’s policy sufficient to deny a fair hearing, or a “grossly
inappropriate sanction.” The SCP
provides that SCC “will randomly draw a three-member review panel from the pool
to determine whether the criteria for appeals has been met and to determine
what process should be used to resolve the matter.” The review panel may rehear cases or limit
the proceedings to specific issues raised in the appeal. The review panel issues its decision, a copy
of which is forwarded to the associate vice president of human resources, who
can either confirm the decision, or return it once to the review panel for
further consideration. If the decision
is returned to the review panel it has 5 days to return its final decision to
the associate vice president, who forwards it to the parties. The SCP states the “Review Panel’s decision
is the University’s final action on the complaint.”
The SCP
contains a definitional section further explaining the roles of the various participants
in the SCP. One of the functions listed
for the SCC is to schedule and conduct regular meetings with staff mediators. The SCP provides that, “All advocates,
mediators, and panelists are employees covered by this policy who contribute
their paid time at the University, serving to implement the process.” It states that “Pool members” for advocates,
mediators, and panelists are required to be employed by the Respondent for a
minimum of 3 years, with no disciplinary actions in their files within the past
2 years, but that HRD reserves the right to go beyond 2 years. The SCP states that, “The Senior Vice
President for Human Services and Government Relations shall appoint Pool
members for a term of two years following a validation process undertaken by
the Associate Vice President, Human Resources in coordination with the”
SCC. “Prior to beginning their two-year
terms Pool members will be required to undertake a training period appropriate
for their role.”
The SCP
states, in the definitial section, that the complainant draws the mediator from
the “Pool of Potential Panelists, Advocates and Mediators.” The mediator’s responsibilities include
upholding the “neutrality” of the SCP; meeting with and assisting any staff
member (including complainant and Respondent) with any complaint issue to
analyze her or his concerns; and facilitating informal resolution of complaints
through discussion and mediation.
The SCP
provides in the definitional section that, “The Complainant selects the Staff
Advocate from the Pool of Potential Panelists, Advocates, and Mediators and
that responsibilities of the Staff Advocates include:”
1. Maintaining the integrity of the process as well as the interests of the Complainant.
2. Assisting any staff member who may request help from a Staff Advocate in analyzing her/his concerns.
3. Serving as a support person for the Complainant.
4. Attending any meetings or interviews undertaken as part of the Staff Complaint Process, with voice.
5. The Staff Advocate may, if requested by the Complainant, accompany him/her to the hearing before the Staff Complaint Hearing Panel and may serve as an advocate without voice at the hearing. A Complainant has the option of choosing his/her own support person in place of a Staff Advocate. This support person cannot be an attorney.
The SCP
provides that:
A Hearing
Panel consists of three members, including the Chair, and is drawn by the Staff
Complaint Coordinator from the Pool of Potential Panelists, Advocates, and
Mediators. . . . If the Pool is
representative of all employee groups (non-exempt, exempt, supervisory), one
name will be drawn from a subset of the Pool of people in a similar employment
situation as the complainant, and one name drawn from a subset of the Pool of
people in a similar employment situation as the respondent.
The SCP
provides that the hearing panel is charged with participating in orderly,
objective and fair hearings that are based on factual information that
precludes discussion with parties outside of the hearing, and thereafter
issuing an objective decision including a determination of the facts, and
recommendations. It is stated that “Voting
will be based upon a simple majority of those present. . . .” “Dissenting members may choose to provide
written dissenting opinions, and are encouraged to do so.” The SCP states that the hearing panel chair
shall be drawn by the SCC from the pool of panelists, advocates and mediators,
and must receive training as a hearing officer.
They must conduct fair hearings, which precludes discussions with the
parties outside the hearing.
Under the SCP
the “review panel” is a three-member panel drawn from the same pool of
panelists, mediators, and advocates by the SCC, with one member of the panel in
a similar employment situation to the claimant and one in a similar employment
situation to the respondent. The “review
panel chair” is also selected by the SCC.
The review panel determines if the grounds for appeal have been
satisfied, and whether further process is necessary to resolve the appeal. The review panel may choose among various
options such as rehearing a case or limiting the proceedings to specific issues
outlined in the appeal. It can affirm or
overturn the original decision. The review
panel issues a written determination of facts, and recommendations. Voting is based on a majority, and dissenting
members are encouraged to author dissenting decisions.
Respondent’s HRD
officials supervised the development of training manuals for the volunteer
advocates, mediators, and panelists including a “Mediator Handbook,” a “Hearing
Panel Handbook,” and an advocate training manual. HRD was assisted by another branch of the
University in also developing a separate mediation training manual entitled, “Staff Mediation Training,”
dated January 2003. The
volunteers received training for their respective positions in January and
February 2003, with each volunteer receiving copies of the appropriate training
manual or manuals. The “Staff Mediation Training” manual
states, at page 3 under process, that, “We will explore possible options toward
a mutually satisfying solution to issues discussed.” It states that if “all parties feel
comfortable with outcome, mediators will type the agreement and all parties
will sign.” It states that as a mediator,
“Begin with first item on list and facilitate discussion and brainstorming
options by participants.” The pamphlet
later states on the same page, “BE CAREFUL NOT TO GENERATE OPTIONS YOURSELF!!!” The pamphlet states once options have been
generated, “Parties will evaluate the options as the mediator facilitates this
process.” The mediator is charged with “Point(ing)
out options that seem similar toward meeting each party’s interests.” The HRD distribution entitled, “Mediator
Handbook” states that, “Sometimes because of the complexity of the issues, the
inexperience of the selected facilitator or for other reasons it is necessary
to have co-mediators.” The handbook
states that, “As mediator, you must remain neutral and not propose any options
yourself.” It later reiterates, “DO NOT
GENERATE OPTIONS YOURSELF!!!” However,
it also states the mediator is to “Point out options that seem similar toward
meeting each party’s interests.”
Respondent’s “Hearing Panel Handbook” provides, “Be sure that you clarify
any conflicting information before you enter into deliberation. Continue to ask questions until you have the
necessary facts regarding the incident.
Do not wait until you are in deliberation and then start guessing at
reasons why the information presented was conflicting.”
Strodel testified to the following: Strodel, along with HRD, is charged with the
administrative oversight of the SCP.
Sharon Cole, an R & D specialist in HRD, is the SCC for the
SCP. The majority of intended complaints
for the SCP are disciplinary situations between a supervisor and a staff member
as well as alleged violations of University rules and policies. A grievance concerning a University rule or
policy could be a situation where a supervisor denies an employee’s request to
issue a job evaluation, or a denial of a travel reimbursement request.
Strodel testified that: At the informal stage of the SCP, the
complaining employee has the option of choosing an advocate and a mediator, and
the SCC produces a list of mediators from the pool of Respondent’s trained volunteers. The mediator could be a supervisor, an hourly
employee, or a salaried manager. There
could actually be two mediators used for training purposes. The mediators facilitate the process at a
time when the conversation is still between the staff member and their
supervisor. The mediator is there to
make sure that positions are understood on either side and to fact find. The mediator remains neutral in that they do
not represent the complainant or the manager.
Strodel testified that the mediator is not supposed to propose solutions
and that in the training manual such conduct is prohibited. However, Strodel gave an affidavit dated
January 21, 2003, wherein he testified that in the SCP, “the mediator can
suggest possible solutions or try to tease solutions from the parties.”
Strodel testified that: The
advocate is charged with the responsibility of acting as a support for the
claimant. The advocate can help the
complainant analyze arguments and help them express themselves in a more
refined manner. The advocate can speak
during mediation stage of the SCP. The
advocate could be a supervisor or employee.
Strodel testified that: If mediation does not work to the complainant’s
satisfaction they go back to the SCC and a hearing panel is selected. The SCC first chooses the chairperson for the
panel and in the case of a nonsupervisory complainant the chair would be nonsupervisory. The SCC would then select another nonsupervisory
person for the panel, and the third panelist would be a supervisor. Strodel testified that if the complainant is
nonsupervisory the hearing panel will be composed of a non-exempt employee, an
exempt employee, and a supervisor, although he admitted there is no instruction
in the SCP as to the classification of the third panelist. He testified that the third panelist will be
nonsupervisory when the complainant is not a supervisor, “Because I decided to
do it that way.” Strodel testified that
a panel for an hourly employee complainant could be composed of an hourly
employee, an administrative employee, and a supervisor.
Strodel testified that: Following the hearing, the hearing panel
writes a majority decision based on the preponderance of the evidence and the
decision is submitted to Strodel for “confirmation.” Strodel has no role in the formal process
prior to receiving the decision. The
hearings are taped, and can be transcribed if necessary. Strodel does not receive a copy of the
tape. Strodel either implements the
panel’s decision, or if he disagrees, he can send it back once with his
input. After the panel receives Strodel’s
input, they can choose to ignore it, retain their original decision and then
the panel issues the final decision.
Strodel testified that: The complainant or respondent supervisor
can appeal the hearing panel’s decision.
The composition of the review panel would be the same as the hearing panel,
that is if the complainant is not a supervisor, the review panel would consist
of two nonsupervisors and a supervisor.
The SCC draws the panel names from the list of volunteers. After reviewing the case, the review panel
makes a decision. The review panel’s
decision then goes to Strodel. Strodel
can affirm the decision, or send it back once with input. Strodel testified that while the process
provides him two occasions for input, he would not provide new input to the review
panel if he had previously provided it to the hearing panel as his input to the
hearing panel would be part of the record for the review panel. Strodel testified he would provide input to
the review panel if he had affirmed the hearing panel’s decision and the review
panel altered that decision.
At the time of the unfair labor practice trial, three claims had
been filed under the SCP, and all were resolved before reaching the formal
stage of the process. Strodel testified
that two of the three complaints had been resolved at mediation, and one was
not allowed into the process. A
complaint for employee A was filed on April 8, 2003 on a “staff complaint process
notification of complaint” form.4 Employee A is a communication specialist and
the complaint was filed against the assistant deputy director in the department
of public safety. By letter dated April
7, 2003, the director, citing three incidents, issued a 2-day suspension
without pay to the employee. Employee A
alleged disparate treatment and that there were no written rules or procedures
covering the accusations. Strodel
testified that the complaint was addressed at the mediation stage of the SCP. The employee selected a mediator, and
thereafter the complaint was resolved when the employee and supervisor agreed
to meet with another staff person to discuss relationship issues. However, the suspension remained as part of
the employee’s record. The complaint
resolution was set forth on a “mediation agreement” form signed on May 2, 2003,
by the employee, supervisor and mediator.
A complaint for employee B, a registered nurse, was filed on April 9,
2003, against the director of nursing.
Strodel testified that the complainant is a nonsupervisory employee, and
her complaint involved a sentence in her performance review. The parties signed a “mediation agreement”
form on April 30, 2003, where the complainant agreed to submit a written letter
as part of her performance review expressing her opinion on the objectionable
portion of her supervisor’s narrative.
Strodel testified that the content of the supervisor’s performance
review was not altered as part of the resolution of the complaint. Along with the employee and supervisor, two
mediators signed off on the “mediation agreement.”
Employee C, a folder operator, filed a complaint on April 23,
2003, against an individual listed as a supervisor in the complaint. Employee C accused the supervisor of asking
employee C if he liked his job, and if he liked working there, which employee C
took as a threat. It is stated in the
paperwork related to the complaint that the complaint was not accepted into the
SCP. It was reported that SCC determined
that employee C did not want to fill out a self assessment form to complete his
performance review as requested by employee C’s supervisor and it is stated
that employee C was notified that his complaint would not be accepted into the
SCP. Strodel testified that after the
SCC looked into the situation it was determined that the complaint should not
be part of the process, that it was a relationship issue between the
complainant and the supervisor, and should be handled another way. Strodel testified that the SCP “special panel”
is part of the decisionmaking process for jurisdiction of a complaint, but that
the record of the complaint did not show that SCC referred the matter to the special
panel before telling the complainant that the SCC did not have jurisdiction.5
B.
The
Election Campaign
On October 21, 2002, Teamsters Local 317 (the
Matson testified that he first mentioned the SCP to SPD employees
during a campaign meeting on November 15, where he listed the SCP as one of a
package of benefits Respondent provides to the PSD employees. Respondent distributed a sheet during this
meeting describing the employees’ current benefit package, including the
SCP. It is stated at the top of the
sheet that, “This comprehensive benefit package, . . ., has been brought to you
by
Matson testified there were some questions in follow-up meetings
leading him to conclude that some employees did not fully understand what was
included in the SCP, so on November 18 or 19, Respondent posted a memo on a
bulletin board for the PSD employees.
The memo entitled “NEW STAFF COMPLAINT PROCESS” tells the employees to
vote no at the December 18 election and reads as follows:
. . . effective
January 1, 2003, all current non-union staff employees will have the
opportunity to resolve complaints arising between them and their supervisors
through a new and improved process that provides employee advocates, mediators,
and an impartial Hearing Panel comprised from a pool of trained volunteers,
including volunteers from Parking Services.
. . . .
This
procedure is intended to ensure the prompt and impartial resolution of disputes
that have been addressed through supervisory channels but cannot be or have not
been satisfactorily resolved.
You may
bring an Advocate to any or all of the meetings related to the problem. Staff advocates will be trained in conflict
resolution techniques and will be available as your resource and support absolutely free of charge.
Here is
another reason not to pay the Teamsters your
hard-earned money!
Gursky’s credited testimony reveals Matson reviewed this document
with employees during one of the meetings Gursky attended.
On December 10, 2002, the Union issued a handout to PSD employees
in which the
If employees do not need a
Respondent responded to the
Staff Complaint Process
We are implementing a process we have worked on
for almost 3 years that improves our current staff complaint process and
includes employee advocates,
mediation and an employee based Review
Panel.
The memo ends with the highlighted statement, “Ignore the union’s
last minute hype and misinformation, VOTE NO!”
Gursky’s testimony reveals he attended a meeting on December 16, where
Matson said employees could sign up and be involved in the process by becoming
an advocate, mediator, or panelist.
Gursky received the above memo at this meeting.
Olszewski’s credited testimony reveals that, during one of the
meetings, Matson said, in reference to the SCP, “Do the math,” “this [sic] available
to you at no cost, while if you choose to organize, then it’s going to cost you
dues, Union dues.” Olszewski testified
during one of the meetings, Matson mentioned the SCP had an employee-based hearing
or review panel meaning that it would be made up of employees rather than
supervisors and the new SCP would be implemented as of the first of the year as
a benefit the employees did not have to pay for. Gursky also credibly testified that Matson
told employees that the SCP was a way of taking care of grievances free of
charge, and that it did not involve union dues.6
C. Positions of the Parties
The
General Counsel argues that the SCP is a labor organization under Section 2(5)
of the Act since Respondents’
employees participate as advocates, mediators, and panelists and the SCP exists
for the purpose of dealing with Respondent concerning grievances. The General Counsel argues that at every
stage of the process the employee organization makes proposals, which are given
real or apparent consideration by management.
The General
Counsel argues the special panel is dominated by management representatives and
there is the potential for dealing among the members of the panel, as the management
majority may reject the proposals of the employee member as to whether
complaint allegations are allowed in the SCP.
It is asserted that “dealing” also exists between the complainant and
advocate and the Special Panel regarding grievances as to whether a complaint
should be allowed in the process.
The General Counsel argues the mediation stage of the SCP is intended to achieve an informal resolution of the employee’s complaint and the various participants propose solutions during mediation, including the advocate who represents the complainant. Quoting Strodel’s prehearing affidavit, it is asserted that the mediator “can suggest possible solutions or try to tease solutions from the parties.” It is asserted that the mediator can involve up to two higher levels of management in attempting to resolve the complaint. The General Counsel argues the mediator tries to persuade management to modify its actions, which are the subject of the complaint, and the mediator, in addition to the advocate, are representing the interests of the complaining employee. The General Counsel argues the advocate and mediator make proposals to management and management res