17:0948(124)CA - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 -- 1985 FLRAdec CA



[ v17 p948 ]
17:0948(124)CA
The decision of the Authority follows:


 17 FLRA No. 124
 
 DEPARTMENT OF THE AIR FORCE 
 OGDEN AIR LOGISTICS CENTER 
 HILL AIR FORCE BASE, UTAH 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1592 
 Charging Party
 
                                            Case No. 7-CA-30386
 
                            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
 stipulation of facts, accompanying exhibits, and the contentions of the
 parties, the Authority finds:
 
    The complaint alleges that the Respondent, Department of the Air
 Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, violated
 section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) /1/ in essence by conducting a formal
 discussion with an employee in the bargaining unit represented
 exclusively by the Charging Party, American Federation of Government
 Employees, AFL-CIO, Local 1592 (the Union), without first notifying the
 Union and affording it the opportunity to be present, thereby failing or
 refusing to comply with section 7114(a)(2)(A) of the Statute.  /2/
 
    The American Federation of Government Employees, AFL-CIO (AFGE) is
 the certified exclusive representative of a nationwide bargaining unit
 of all nonsupervisory, nonprofessional employees of Headquarters Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio.  The
 Union is an affiliate and agent of AFGE for the purpose of
 administration of the contract covering the bargaining unit employees
 located at the Respondent's installation at Hill Air Force Base, Utah.
 
    On March 2, 1983, Earl D. Berry, a member of the bargaining unit,
 received his annual performance appraisal under the Air Force Civilian
 Potential Appraisal System (CPAS).  The rating official was supervisor
 Raymond Hess;  the reviewing official was Robert L. Welty.  On March 4,
 Berry and his Union representative, Coop, met with Hess at the first
 (informal) step of the negotiated grievance procedure, and complained
 that certain items in the CPAS were improperly graded under Article 15
 of the parties' negotiated agreement.  The grievance was not resolved at
 this step and, after the second-step grievance proceedings, Respondent
 notified Berry and the Union of its decision to resolve the grievance by
 giving Berry a new evaluation.
 
    On April 11, Hess directed Berry to accompany him to Welty's office
 to give Berry his reevaluation and to talk about it.  Berry requested
 the presence of his Union representative, Nyland.  Hess stated that he
 had already discussed Nyland's presence at the meeting with Welty and a
 third-level supervisor, and that they had decided that the presentation
 of the reevaluation was the same as the original presentation of his
 evaluation, and the Respondent did not want to establish a precedent of
 having the Union present at the time of giving a performance evaluation
 to an employee.  At the office, Hess gave Berry the new evaluation, and
 Berry indicated that he could not agree with it because it lowered a
 rating in a category that had not been the subject of the grievance.
 Only Hess and Berry were present, and the entire meeting lasted ten
 minutes.  At the conclusion of the meeting, Hess noted Berry's refusal
 to sign the new evaluation, and gave Berry a copy of the unsigned
 evaluation.
 
    On May 2, the Union filed a third-step grievance over the
 reevaluation of Berry on April 11.  By letter dated May 23, Respondent's
 Vice Commander, Musser, responded, directing that a new reappraisal be
 performed, because he felt that only a reappraisal of the initially
 grieved items should have been made, and that non-grieved items should
 not have been changed.
 
    The General Counsel and the Union contend that the April 11 meeting
 was a "formal discussion" concerning a grievance within the meaning of
 section 7114(a)(2)(A) of the Statute, and that the Respondent's failure
 to notify the Union and afford it the opportunity to be present
 constituted a violation of section 7116(a)(1), (5) and (8).  Although
 the General Counsel argues that the meeting was more than a performance
 evaluation meeting, but rather was integrally related to the resolution
 of a grievance, the Authority finds it unnecessary to pass upon such
 contention because we conclude that the element of "formality" was
 absent from the meeting.
 
    In Bureau of Government Financial Operations, Headquarters, 15 FLRA
 No. 87 (1984), the Authority held that in order for a union's rights
 under section 7114(a)(2)(A) of the Statute to attach, all elements set
 forth in that section must be found to exist:  (1) a discussion;  (2)
 which is formal;  (3) between one or more representatives of the agency
 and one or more employees in the unit or their representatives;  (4)
 concerning any grievance or any personnel policy or practice or other
 general condition of employment.  Further, in Department of Health and
 Human Services, Social Security Administration, Bureau of Field
 Operations, San Francisco, California, 10 FLRA 115 (1982), the Authority
 noted a number of factors relevant to a determination of whether
 meetings alleged to be formal discussions within the meaning of section
 7114(a)(2)(A) of the Statute are in fact "formal" in nature.
 Thereafter, in Defense Logistics Agency, Defense Depot Tracy, Tracy,
 California, 14 FLRA 475 (1984), the Authority emphasized that such
 factors were not intended to be exhaustive, and that other factors may
 be identified and applied as appropriate in a particular case.  Thus, in
 determining formality, the Authority will consider the totality of facts
 and circumstances presented.
 
    In the particular facts and circumstances of this case, the Authority
 concludes that the meeting of April 11, wherein supervisor Hess gave
 employee Berry a new performance appraisal and discussed it with him,
 was not "formal" in nature as contemplated in section 7114(a)(2)(A) of
 the Statute.  Thus, the meeting was held by Berry's first-level
 supervisor, with no other management officials present;  the meeting
 lasted only about 10 minutes;  the meeting was called informally and was
 not scheduled in advance;  there was no formal agenda;  and Berry's
 comments were not noted or transcribed.
 
    As the April 11 meeting was not "formal" in nature, and therefore not
 all of the elements in section 7114(a)(2)(A) have been found to exist,
 the meeting was not a "formal discussion" within the meaning of that
 section of the Statute.  Bureau of Government Financial Operations,
 Headquarters, supra.  Accordingly, the Respondent's failure to provide
 the Union with an opportunity to be represented did not violate the
 Statute, and the complaint herein shall be dismissed.  See Harry S.
 Truman Memorial Veterans Hospital, Columbia, Missouri, 16 FLRA No. 137
 (1984).
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 7-CA-30386 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 8, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1), (5) and (8) provides 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) pr