15:0529(111)CA - DOD, NG Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly AFB and AFGE Texas Air NG Council of Locals -- 1984 FLRAdec CA



[ v15 p529 ]
15:0529(111)CA
The decision of the Authority follows:


 15 FLRA No. 111
 
 DEPARTMENT OF DEFENSE
 NATIONAL GUARD BUREAU
 TEXAS ADJUTANT GENERAL'S DEPARTMENT
 149TH TAC FIGHTER GROUP (ANG)(TAC)
 KELLY AIR FORCE BASE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, TEXAS AIR NATIONAL GUARD
 COUNCIL OF LOCALS, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-210
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint and recommending
 that the complaint be dismissed.  The General Counsel filed exceptions
 to the Judge's Decision, and the Respondent filed an opposition to such
 exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions, and recommendations, only to the extent
 consistent herewith.
 
    The amended complaint alleged that the Respondent violated section
 7116(a)(1), (5) and (8) of the Statute /1/ by failing to afford the
 Charging Party an opportunity to be represented at a formal discussion
 within the meaning of section 7114(a)(2)(A) of the Statute.  /2/ The
 Charging Party, American Federation of Government Employees, Texas Air
 National Guard Council of Locals, AFL-CIO (the Union) exclusively
 represents a unit of nonsupervisory technicians employed by the Texas
 Air National Guard.  The alleged violation concerns a meeting of
 employees called by the Respondent's Commander at which he announced
 plans to extend the technicians' workweek from five days to six days in
 order to meet an operational need.  At the meeting, the Commander
 expressed his intention of staffing the additional workday with
 employees in their military capacity, but indicated that if there were
 an insufficient number of volunteers for such duty, the Respondent would
 then require employees to work in their civilian capacity.  No prior
 notice of this meeting was provided to the Union.
 
    In his Decision, the Judge noted the Respondent's concession that no
 prior notice of the meeting was given to the Union, and that the meeting
 was "formal" and concerned a "general condition of employment" within
 the meaning of section 7114(a)(2)(A) of the Statute.  The Judge then
 determined that the sole issue before him was whether the meeting
 constituted a "discussion" within the meaning of section 7114(a)(2)(A).
 In this connection, the Judge looked to the dictionary definition of
 "discussion" and found that it contemplated some type of debate or
 argument.  Noting the absence of any debate or argument at the meeting
 in question, the Judge concluded that the mere announcement of a new
 policy did not constitute a discussion within the meaning of section
 7114(a)(2)(A) and therefore that the Respondent's failure to afford the
 Union an opportunity to be present was not violative of section
 7116(a)(1), (5) or (8) of the Statute.
 
    Section 7114(a)(2)(A) provides that an exclusive representative shall
 be given the opportunity to be represented at formal discussions between
 one or more representatives of the agency and one or more employees in
 the unit or their representatives concerning any grievance or any
 personnel policy or practices or other general conditions of employment.
  /3/ As previously noted, the Respondent has conceded and the Authority
 finds that the meeting herein which was held with unit employees to
 outline a change in their workweek was formal in nature and concerned a
 general condition of employment.  The Authority further finds based on
 the record that the meeting was held between a representative of the
 agency and unit employees.  The only issue to be decided here, in order
 to determine whether the Union had a right to be represented at the
 meeting in question, is whether that meeting constituted a "discussion"
 as that term is used in section 7114(a)(2)(A) of the Statute.  In order
 to do so, it is necessary to look to the intent and purpose of section
 7114(a)(2)(A).
 
    As noted by the Judge, section 7114(a)(2)(A) is virtually identical
 to the last sentence of section 10(e) of Executive Order 11491, as
 amended.  /4/ The latter provision was "manifestly designed to provide
 the union with the opportunity to safeguard the interests of unit
 employees at formal meetings held by management with those employees
 concerning grievances, personnel policies and practices, or other
 matters affecting general working conditions." See Statement on Major
 Policy Issue, 4 FLRC 709 (1976), at 711.  See also Department of
 Defense, U.S. Navy, Norfolk Naval Shipyard, 6 FLRC 1103 (1978), at
 1108-1109, wherein the terms "discussion" and "meeting" were used
 interchangeably in the context of a case involving a factual
 determination that meetings called specifically for the purpose of
 terminating probationary employees constituted "formal discussions." In
 enacting section 7114(a)(2)(A) of the Statute, Congress did not indicate
 any intent to modify the purpose or the interpretation and application
 of the virtually identical language in the predecessor Executive Order.
 Rather, what legislative history exists with respect to section
 7114(a)(2)(A) supports the conclusion that Congress intended to continue
 treating "discussion" as synonymous with "meeting." /5/
 
    Consistent with the foregoing, the Authority concludes that the
 Judge's interpretation and application of the term "discussion" is
 inconsistent with the purposes and policies of the Statute.  Thus, it is
 inconsistent with the intent and purpose of section 7114(a)(2)(A), i.e.,
 to afford an exclusive representative the opportunity to be present in
 order to safeguard the interests of unit employees, to interpret
 "discussion" as requiring a debate or argument to actually occur at the
 meeting.  Rather, the Authority concludes that where agency management
 decides to hold a "formal" meeting with unit employees concerning
 grievances, personnel policies or practices, or other general conditions
 of employment, section 7114(a)(2)(A) of the Statute requires management
 to give the employees' exclusive representative adequate prior notice
 of, and an opportunity to be present at the meeting even if the meeting
 was called for the purpose of making a statement or announcement rather
 than to engender dialogue.  In this manner, the exclusive representative
 will be assured the opportunity to hear, along with unit employees,
 about matters of interest to unit employees and be in a position to take
 appropriate action to safeguard those interests.  To require that a
 debate or argument actually occur in order for a meeting to be
 considered a formal discussion under section 7114(a)(2)(A) would deprive
 an exclusive representative of the right to be represented thereat
 inasmuch as it could not be ascertained until after the meeting had
 already taken place whether a debate or argument in fact occurred, and
 would not provide a basis for determining in advance of the meeting
 whether the exclusive representative should be given notice and an
 opportunity to be represented.  Moreover, in the Authority's view, the
 section 7114(a)(2)(A) rights accorded an exclusive representative should
 not be negated by a management determination to refuse to entertain
 questions or engage in a dialogue at the meeting itself.  Therefore, the
 absence of actual dialogue may not be relied upon to justify a failure
 to have given the exclusive representative prior notice and an
 opportunity to be present at a formal discussion concerning grievances,
 personnel policies or practices or other general conditions of
 employment.  /6/
 
    Accordingly, in the instant case, the Authority concludes that the
 meeting, which was called by the Respondent for the purpose of outlining
 a change in the employees' workweek, constituted a formal discussion
 between a representative of the agency and unit employees concerning a
 general condition of employment.  Therefore, the Respondent was
 obligated to afford the Union prior notice of and an opportunity to be
 represented at the meeting, and the Respondent's failure to do so
 constitutes a failure to comply with section 7114(a)(2)(A) in violation
 of section 7116(a)(1) and (8) of the Statute.
 
    However, the Authority finds that the General Counsel has failed to
 establish that the Respondent also violated section 7116(a)(5) of the
 Statute by such conduct.  Thus, the only unlawful conduct alleged in the
 amended complaint was that the Respondent had failed to permit the Union
 to be present at a formal discussion as required by section
 7114(a)(2)(A).  This section does not itself give rise to an obligation
 to negotiate within the meaning of the Statute.  Therefore, a failure to
 comply with section 7114(a)(2)(A) cannot, standing alone, form the basis
 of a section 7116(a)(5) violation.  Accordingly, the Authority shall
 dismiss that portion of the complaint.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, IT IS HEREBY ORDERED that
 the Department of Defense, National Guard Bureau, Texas Adjutant
 General's Department, 149th TAC Fighter Group (ANG)(TAC), Kelly Air
 Force Base, shall:
 
    1.  Cease and desist from:
 
    (a) Failing to give the employees' exclusive representative, the
 American Federation of Government Employees, Texas Air National Guard
 Council of Locals, AFL-CIO, prior notice of and an opportunity to be
 represented at formal discussions with bargaining unit employees
 concerning grievances, personnel policies and practices or other general
 conditions of employment.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Give the American Federation of Government Employees, Texas Air
 National Guard Council of Locals, AFL-CIO, the exclusive representative
 of unit employees, prior notice of and an opportunity to be represented
 at formal discussions with bargaining unit employees concerning
 grievances, personnel policies and practices or other general conditions
 of employment.
 
    (b) Post at all of its facilities at Kelly Air Force Base, copies of
 the attached Notice on forms to be furnished by the Federal Labor
 Relations Authority.  Such forms shall be signed by the Commander of the
 149th TAC Fighter Group (ANG)(TAC), or his designee, and shall be posted
 and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VI, 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 FURTHER ORDERED that the complaint in Case No. 6-CA-210,
 insofar as it alleges a violation of section 7116(a)(5) of the Statute,
 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., August 16, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail to give our employees' exclusive representative, the
 American Federation of Government Employees, Texas Air National Guard
 Council of Locals, AFL-CIO, prior notice of and an opportunity to be
 represented at formal discussions with bargaining unit employees
 concerning grievances, personnel policies and practices or other general
 conditions of employment.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL give the American Federation of Government Employees, Texas
 Air National Guard Council of Locals, AFL-CIO, the exclusive
 representative of our employees, prior notice of and an opportunity to
 be represented at formal discussions with bargaining unit employees
 concerning grievances, personnel policies and practices or other general
 conditions of employment.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees, have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region VI, Federal Labor Relations Authority, whose address
 is:  Bryan and Ervay Streets, Rm. 450. P.O. Box 2640, Dallas, Texas
 75221 and whose telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Major Jack L. Slaton, Esq.
    For Respondent
 
    Benito Saucedo, Jr.
    For Charging Party
 
    Alvaro Garza, Esq.
    For the General Counsel
 
    Before:  Samuel A. Chaitovitz
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq.
 (hereinafter referred to as the Statute) and the Rules and Regulations
 of the Federal Labor Relations Authority, 5 C.F.R.Chapter XIV, Sec. 2410
 et seq.
 
    Pursuant to a charge filed on August 24, 1979, and amended on October
 29, 1980 and November 5, 1980, by American Federation of Government
 Employees, Texas Air National Guard Council of Locals, AFL-CIO
 (hereinafter called Union and Charging Party) against the Department of
 Defense, National Guard Bureau, Texas Adjutant General's Department,
 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base (hereinafter
 called Respondent) the General Counsel of the Federal Labor Relations
 Authority (FLRA) by the Regional Director for Region 6 issued a
 Complaint and Notice of Hearing on February 28, 1980, an Amended
 Complaint and Notice of Hearing on March 4, 1980, a second Amended
 Complaint and Notice of Hearing on April 4, 1980, and a third Amended
 Complaint and Notice of Hearing on November 12, 1980.  The Complaint
 alleges that Respondent refused to permit the Union to be present at a
 formal meeting on August 9, 1979 as required by Section 7114(a)(2)(A)
 and thereby violated Sections 7116(a)(1)(5) and (8) of the Statute.
 Respondent denies it violated the Statute.
 
    A hearing in this matter was conducted before the undersigned in San
 Antonio, Texas.  The General Counsel of the FLRA, Respondent and
 Charging Party were represented and afforded full opportunity to be
 heard, to examine and cross-examine witnesses, to introduce evidence and
 to argue orally.  Briefs were filed and have been fully considered.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my observation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein the Union was the collective bargaining
 representative for a unit of non-supervisory Texas Air National Guard
 Technicians.  Colonel Robert Goodman, Commander of 149th Tactical
 Fighter Group, Texas Air National Guard, Kelly Air Force Base, is a
 supervisor.
 
    During early August 1979 Union Chief Steward Benny Saucedo met with
 Colonel Goodman and discussed the problem of additional maintenance
 coverage for the aircraft serviced by the technicians.  Colonel Goodman
 suggested that the Activity would somehow have to go from the customary
 five day work week to a six day work week.
 
    During the morning of August 9, 1979, Colonel Goodman, through his
 section chiefs, notified the employees, including the technicians, of a
 mandatory meeting to be held that day.  No notice of the August 9
 meeting was given to the Union.  The meeting started at about 4:15 p.m.
 and adjourned at about 4:30 p.m.  Colonel Goodman advised the assembled
 employees, including technicians, that they were approaching the date
 when they were scheduled to attain combat ready status C-3 and that they
 wanted to reach such status by their scheduled date.  In order to
 accomplish this Colonel Goodman announced that they would have to put in
 6 day work weeks.  Colonel Goodman stated that this would be
 accomplished by making one day available, on a voluntary basis, on
 military status, /7/ but that if there were not enough volunteers they
 would use compensatory time, if necessary.  Colonel Goodman testified
 that he did not recall any questions being asked by the employees and
 further testified that he answered no questions.  Technician Edward G.
 Alsbrook, Jr. testified that he attended the August 9 meeting.
 Technician Alsbrook recalls one question being asked, the question being
 "Is this going to be a requirement for all personnel or just for
 CAMRON?" /8/ Technician Alsbrook does not recall the identity of the
 person who asked the question or whether it was answered.  In these
 circumstances, it is concluded that although a question might have been
 asked at the meeting, it was neither heard nor answered by Colonel
 Goodman.
 
                                Conclusions
 
    Section 7114(a)(2)(A) of the Statute provides:
 
    "Sec. 7114.  Representation rights and duties
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at . . .
 
          (A) any formal discussions 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."
 
    General Counsel contends and Respondent concedes that the August 9
 meeting called and conducted by Colonel Goodman was "formal" and that
 the meeting, dealing with the necessity and scheduling of a sixth work
 day, concerned a "general condition of employment" within the meaning of
 Sec. 7114(a)(2)(A).  Further there is no dispute that the Union was not
 notified of the August 9 meeting and was not represented.  The only
 remaining issue is whether the meeting constituted a "discussion" as
 that term is used in Sec. 7114(a)(2)(A) of the Statute.
 
    In construing the words of the Statute they are presumed to be used
 in their ordinary and usual sense, and with the meaning commonly
 attributed to them.  Banks v. Chicago Grain Trimmers, 390 U.S. 459, 465
 (1968).  In this regard, Webster's New International Dictionary (3rd Ed.
 1961) defines "discussion" as:  "consideration of a question in open
 issue, informal debate:  argument . . . " The Random House College
 Dictionary (1973) defines "discussion" as:  " . . . the act or an
 instance of discussing, consideration or examination by argument,
 comment, etc;  debate."
 
    In the instance case Colonel Goodman merely announced the new policy.
  There was no debate or argument.  /9/ It is concluded that the meeting
 of August 9 did not constitute a "discussion" as the term is used in
 Section 7114(a)(2)(A) of the Statute.  /10/
 
    Thus, because the August 9 meeting was not a "formal discussion"
 Section 7114(a)(2)(A) did not require Respondent to give the Union
 notice of the August 9 meeting and did not entitle the Union to be
 represented at that meeting.
 
    Accordingly, it is concluded that Respondent did not violate Sections
 7116(a)(1)(5) and (8) of the Statute, /11/ and I recommend that the
 Federal Labor Relations Authority adopt the following:
 
                                   ORDER
 
    It is hereby ordered that the complaint in Case No. 6-CA-210 be and
 hereby is, dismissed.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  June 12, 1981
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116 provides, in pertinent part, as follows:
 
    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.
 
 
    /2/ Section 7114(a)(2)(A) provides as follows:
 
    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(.)
 
 
    /3/ See generally Bureau of Government Financial Operations,
 Headquarters, 15 FLRA No. 87 (1984).
 
 
    /4/ Section 10(e) provided, in relevant part, as follows:
 
          The (exclusive representative) shall be given the opportunity
       to be represented at formal discussions between management and
       employees or employee representatives concerning grievances,
       personnel policies and practices, or other matters affecting
       general working conditions of employees in the unit.
 
 
    /5/ As indicated by Representative Clay of Missouri in explaining the
 reason why the word "formal" was added before "discussion" in the
 provision of the "Udall substitute" which was later enacted into law as
 section 7114(a)(2)(A) of the Statute, it was "in order to make clear the
 intention that this subsection does not require that an exclusive
 representative be present during highly personal, informal meetings such
 as counselling sessions . . . ." 124 Cong.Rec. 29187 (1978).
 
 
    /6/ That prior notice is a requirement when section 7114(a)(2)(A) is
 applicable, see Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74
 (1981).
 
 
    /7/ The technicians are civilian employees.  They are also members of
 the National Guard and must put in some additional training time in
 military status.  This military time is distinguished from their normal
 work week, which they perform in their civilian capacity.
 
 
    /8/ CAMRON stands for "Consolidated Aircraft Maintenance Squadron."
 These are maintenance technicians.
 
 
    /9/ Although a question might have been asked by an employee, it was
 neither heard nor answered by Colonel Go