29:0594(53)CA - Air Force, Sacramento Air Logistics Center, McClellan AFB, CA and AFGE Local 1857 -- 1987 FLRAdec CA
[ v29 p594 ]
The decision of the Authority follows:
DEPARTMENT OF THE AIR FORCE SACRAMENTO AIR LOGISTICS CENTER MCCLELLAN AIR FORCE BASE, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857, AFL-CIO Charging Party Case No. 9-CA-60302
I. Statement of the Case
This unfair labor practice case is before the Authority under section 2429.1(a) of our Rules and Regulations based on a stipulation of facts entered into by the Respondent, the Charging Party, and the General Counsel. The General Counsel and the Respondent have filed briefs. The complaint alleges that the Respondent committed unfair labor practices under section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by conducting a meeting with a bargaining unit employee which constituted a formal discussion under section 7114(a)(2)(A) of the Statute, without providing the Union with adequate prior notice and/or the opportunity to be represented at the meeting. For the reasons which follow, we conclude that the Respondent violated the Statute as alleged.
The American Federation of Government Employees, AFL - CIO (AFGE) is the exclusive representative of a consolidated bargaining unit of certain employees of the Respondent, Department of the Air Force, Air Force Logistics Command, including those of the Sacramento Air Logistics Center, McClellan Air Force Base, California. Local 1857 (the Charging Party or the Union) is AFGE's agent at McClellan Air Force Base. [PAGE]
A Union-initiated grievance was scheduled for an arbitration hearing on May 22, 1986. The grievance concerned which Union steward, under the parties' Master Labor Agreement, was the proper steward to accompany the Respondent's Safety Office personnel on certain safety inspections. On May 15, the Union's First Vice President, Dora Solorio, informed the Respondent's Labor Relations Office that she was calling John Timblin, a bargaining unit employee, as a witness at the scheduled arbitration hearing. In response to the Respondent's question as to who would be representing the Union in this matter, Solorio stated that she would be.
The following day, Lisa Schra, a Labor Relations Specialist in the Respondent's Labor Relations Office, called Timblin and requested that he meet with Respondent's Labor Counsel, Bruce Waggoner, and her to discuss the procedures that Timblin used to assign stewards to safety inspections when he was the Union's health and safety director (from 1982 to 1984). They agreed to meet in Waggoner's office at 9:30 a.m. on May 20. At that point, no one had contacted Timblin on behalf of the Union to inform him that he would be called by the Union as a witness at the scheduled arbitration hearing.
On May 20, prior to 9:30 a.m., Waggoner and Bob Hazelton, the Union's Business Agent, were engaged in a telephone conversation concerning matters unrelated to this case. During the conversation, Waggoner stated that he would have to end the conversation because he had a meeting with Timblin. Hazelton asked Waggoner if the Union was going to be present at the meeting with Timblin, and Waggoner said no. Hazelton asked Waggoner if he was aware of a decision of the U.S. Court of Appeals for the District of Columbia circuit indicating that a union should be offered an opportunity to be present at interviews held in preparation for third-party cases. Waggoner replied that he was aware of the case, but that the Respondent's view of that case was that the Respondent was not required to offer the Union an opportunity to be represented at a meeting such as he intended to have with Timblin. In making that decision, Waggoner relied on a legal memorandum interpreting the court's decision and certain administrative decisions.
At 9:30 a.m. on May 20, Waggoner, Schra, Labor Relations Officer Ken Boffin, and Timblin met in Waggoner's office. At the outset of the meeting, Waggoner provided Timblin with the assurances contained in Internal Revenue [ v29 p2 ] Service and Brookhaven service Center, 9 FLRA 930 (1982). 1 Timblin voluntarily agreed to participate in the meeting. Waggoner then questioned Timblin regarding the procedures Timblin used in assigning Union stewards to safety inspections when Timblin was the Union's health and safety director. The meeting lasted about 15 to 20 minutes. Waggoner took notes of Timblin's responses to his questions.
The arbitration hearing was held as scheduled on May 22. The union was represented at the hearing by Solorio; the Respondent was represented by Waggoner. At a break in the hearing, before Timblin testified, Timblin met with Solorio and a Union attorney in the hallway outside the hearing room. Timblin told Solorio that he had previously met with Schra and Waggoner. This was the first notice to Solorio of the meeting. At the hearing, Timblin testified regarding his duties as the Union's health and safety director from 1982 to 1984, specifically, his practice and procedures in assigning Union stewards to safety inspections.
III. Positions of the Parties
The Respondent does not dispute that the May 20 meeting took place or that the meeting involved management officials and a bargaining unit member. However, the Respondent asserts that the meeting did not constitute a "formal discussion" within the meaning of section 7114(a)(2)(A), and therefore the Respondent's failure to provide the Union with an opportunity to be represented did not constitute an unfair labor
[ v29 p3 ] practice. Citing the Authority's decision in. Department of Health and Human Services, Social Security Administration, 18 FLRA 42 (1985), the Respondent contends that the May 20 meeting was an 'examination" under section 7114(a)(2)(B), rather than a "discussion' under section 7114(a)(2)(A). In addition, the Respondent contends that even if a "discussion" within the meaning of section 7114(a)(2)(A) had taken place, the record does not demonstrate that the meeting was "formal."
Citing National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1984), the General Counsel contends that the May 20 meeting was a formal discussion under section 7114(a)(2)(A) because the record demonstrates that the meeting concerned a "grievance" and was "formal" within the meaning of that section. The General Counsel also asserts that the Respondent did not provide the Union with prior notice of the May 20 meeting or with an opportunity to be represented at the meeting. According to the General Counsel, it is well-established that an exclusive representative has the right to designate its own representatives for representational purposes at formal discussions. Therefore, the General Counsel contends that the Respondent's failure to provide the Union with prior notice or an opportunity to be represented at the formal discussion of May 20 violated section 7114(a)(2)(A).
Section 7114(a)(2)(A) provides:
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 conditions of employment(.)
The Authority has consistently held that a formal discussion within the meaning of section 7114(a)(2)(A) exists only if all the elements of that section are present: there must be (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more [ v29 p4 ] employees in the unit or their representatives; (4) concerning any grievance or personnel policy or practices or other general condition of employment. See for example, National Archives, 20 FLRA 129 (1985); Bureau of Field Operations, Social Security Administration, San Francisco, California, 20 FLRA 80 (1985); and Social Security Administration, Baltimore, Maryland, 18 FLRA 249 (1985). In U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA No. 52 (1987), we also stated that in applying this analytical approach, we will be guided by the purpose of section 7114(a)(2)(A) --to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit--viewed in the context of a union's full range of responsibilities under the Statute.
A. Was the May 20 Meeting a Discussion?
In Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA 529 (1984) the Authority stated that the legislative history of section 7114(a)(2)(A) supported the conclusion that Congress intended the term "discussion" to be synonymous with "meeting." The Authority held that where agency management decides to hold a meeting with unit employees concerning grievances, personnel policies or practices, or other general conditions of employment, section 7114(a)(2)(A) 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. 15 FLRA at 532. In this case, it is undisputed that a meeting took place on May 20 in which a unit employee answered questions from a management representative.
Furthermore, as noted by the court in National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1192-93 (D.C. Cir. 1985), "when an employer interviews an adverse witness rather than his own or even a neutral witness, common sense suggests that the situation carries a greater potential for intimidation or coercion." When the May 20 meeting is considered in light of the overall purpose of section 7114(a)(2)(A), it is readily apparent that the Union had a representational interest to safeguard in any discussion occurring at this meeting--the assurance that its witness was not coerced or intimidated prior to his appearance at the scheduled arbitration hearing. A union, as a party to the bilateral [ v29 p5 ] process of arbitration, clearly has a stake in assuring that the process is carried out in a fair and impartial manner. Its presence at such meetings will assist in providing that assurance.
Accordingly, we find that the May 20 meeting was a discussion within the meaning of section 7114(a)(2)(A). In making this determination, we reject the Respondent's reliance on the Authority's decision in Social Security Administration. In Social Security Administration, the Authority held that a union's right to representation "at formal discussions under section 7114(a)(2)(A) (was) separate from the right to union representation at an examination contained in section 7114(a)(2)(B), 2 and that "these rights were also intended to apply to different situations(.)" 18 FLRA at 44. The Authority stated (id. at 44-45): "(T)he rights in section 7114(a)(2)(A) were intended to apply to union representation at certain formal discussions between representatives of an agency and unit employees concerning grievances, personnel policies or practices or other general conditions of employment . . . . The legislative history of section 7114(a)(2)(B), on the other hand, indicates that Congress [ v29 p6 ] intended that when an employee is subjected to an examination in connection with an investigation and that employee has a reasonable belief that disciplinary action may result, there is a right to union representation, upon request." (Footnotes omitted.)
The Authority concluded in the circumstances of that case that interviews conducted by a management official with unit employees fell solely within section 7114(a)(2)(B). The interviews had been held to gather facts to enable management to render a decision on a pending contractual grievance. The grievance concerned the conduct of a supervisor and how he related to employees under his supervision.
We reaffirm the Authority's holding in Social Security Administration that sections 7114(a)(2)(A) and 7114(a)(2)(B) establish separate rights to representation, and that the two provisions of the Statute were intended by Congress to serve distinct purposes. However, to the extent that Social Security Administration might be cited for the broad proposition that a union's right to representation at fact-gathering interviews conducted in preparation for third-party hearings depends solely on meeting the requirements of section 7114(a)(2)(B) and cannot be considered under the provisions of section 7114(a)(2)(A), we reject that view. Rather, we reaffirm the proposition evident from the Authority's decisions under section 7114(a)(2) of the Statute that the particular facts of each individual case will determine the provisions of the Statute which are pertinent.
The facts of this case, involving management's inter-view of a Union witness at an upcoming arbitration, differ from the facts of Social Security Administration, where no witnesses to an upcoming third-party proceeding were involved. Instead, the facts are similar to those involved in Bureau of Government Financial operations, Headquarters, 15 FLRA 423 (1984), which involved the interview of a grievant's witness at an upcoming hearing before the Merit Systems Protection Board (MSPB). The Authority analyzed that case under section 7114(a)(2)(A) and concluded that not all of the elements of that section were present.
The United States Court of Appeals for the District of Columbia Circuit rejected the Authority's conclusions that the meeting did not concern a grievance and was not formal. National Treasury Employees v. FLRA, 774 F.2d 1181 (1985). The court also stated that the Authority had departed without [ v29 p7 ] explanation from decisions issued by the Assistant Secretary of Labor for Labor - Management Relations (the Assistant Secretary) under Executive Order 11491, as amended (the Executive Order), in United States Air Force, McClellan Air Force Base, California, 7 A/SLMR 350 (1977) and Internal Revenue Service, South Carolina District, 8 A/SLMR 1370 (1978). Id. at 1191-92. In those decisions, the Assistant Secretary found that management's interview of a bargaining unit employee, who was scheduled as a union witness or was a potential witness with respect to an arbitration hearing, concerning the events surrounding a grievance, was a formal discussion under section 10(e) of the Executive Order. 3 Therefore, under that section of the Executive Order, a union had a right to be represented at meetings, including interviews conducted in preparation for third-party hearings, which met the other criteria for a formal discussion. More-over, as noted by the Assistant Secretary in Internal Revenue Service, South Carolina District at 1371, "an exclusive representative has a legitimate interest in being represented at the interviews of unit employees conducted by management in connection with the processing of a grievance, and the representational responsibilities conferred by Section 10(e) of the Executive Order in this regard far outweigh any impact its presence might have on management's preparation of its case for arbitration" (footnote omitted). [ v29 p 8 ]
The language contained in section 7114(a)(2)(A) is almost identical to the last sentence of section 10(e) of the Executive Order. Nowhere in the legislative history is there any indication that Congress intended the interpretation of this section of the Statute to differ from the corresponding terms of the Executive Order.
Section 7114(a)(2)(B) was a new representation right added by the Statute that was intended to provide employees with the opportunity to request union representation at examinations in connection with investigations if the employee reasonably believed that the examination might result in discipline and the employee requested representation. That right was not provided under the Executive Order. See the discussion of the Administrative Law Judge, which was adopted by the Authority in Internal Revenue Service, Washington D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA 237, 248-52 (1980), enf'd sub nom. Internal Revenue Service, Washington D.C. v. FLRA, 671 F.2d 560 (D.C. Cir. 1982). As noted in the Federal Labor Relations Council's Statement on Major Policy Issue, 4 FLRA 709 (1975), "no right of a union to representation at nonformal meetings or interviews held by management with an employee" was provided under the Executive Order. Id. at 712.
This new right under section 7114(a)(2)(B) only exists if all of the conditions are met, including a valid request by the employee for representation. see, for example, United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA No. 97 (1987). However, there is no indication in the legislative history of this section that this additional right provided as a protection to employees in certain narrowly-defined situations was intended to subtract or limit the rights of a union already existing under section 10(e) of the Executive Order and incorporated in section 7114(a)(2)(A) of the Statute. For these reasons, we reject the Respondent's argument that Executive Order precedent is inapplicable.
For all of the above reasons, we also reject the Respondent's argument that the May 20 meeting should be analyzed under the discussion element in a manner requiring a determination as to whether the meeting was an "examination," and its claim that prehearing interviews of witnesses or potential witnesses are properly excluded from consideration as formal discussions. [ v29 p9 ]
Finally, we reject the Respondent's reliance on Brook-haven Service Center for the proposition that formal discussions under section 7114(a)(2)(A) may not include fact-gathering sessions between agency representatives and unit employees in which management is seeking information to aid in the preparation of its case for presentation at third-party hearings. Whether or not such meetings constitute formal discussions under section 7114(a)(2)(A) must be determined by an analysis of the elements of that section in the circumstances of each particular case.
In sum, we find that the May 20 meeting, conducted by three management representatives with a bargaining unit employee who was scheduled to be a Union witness at an arbitration hearing, was a "discussion" under section 7114(a) (2)(A) of the Statute.
B. Was the May 20 Meeting "Formal"?
The Respondent contends that the meeting was not "formal" because of the absence of record evidence as to (1) whether any of the management representatives in attendance were Timblin's supervisors or higher level management representatives, (2) the location of Waggoner's office, and (3) whether a formal agenda was provided. The Respondent also states that the notes made by Waggoner at the meeting were very brief.
Based on the totality of the facts, we conclude that the May 20 meeting was a "formal" discussion within the meaning of section 7114(a)(2)(A). The record reflects that Timblin was requested to attend the meeting in advance, that the subject matter of the meeting had been determined in advance and that Timblin had been advised of it, and that the meeting was held in Labor Counsel Waggoner's office. The meeting was conducted by Respondent's Labor Counsel with two other management representatives present. The Labor Counsel asked the questions and took notes with respect to Timblin's responses. These indicia of formality outweigh the fact that the record does not state whether the three management officials in the meeting were Timblin's supervisors. See NTEU v. FLRA, 774 F.2d at 1190. Thus, the meeting was "formal" within the meaning of section 7114(a)(2)(A).
C. Did The May 20 Meeting Concern a "Grievance"?
The Respondent did not offer any argument concerning this element. Timblin was interviewed by management [ v29 p10 ]
representatives concerning a union-filed grievance which was scheduled for an arbitration hearing 2 days later. The management representatives were aware that the Union intended to call Timblin as a witness at the hearing. We conclude that the May 20 meeting concerned a "grievance" within the meaning of section 7114(a)(2)(A). See Federal Correctional Institution (Ray Brook, New York), 29 FLRA No. 52 (1987).
D. Did the Union have an Opportunity to be Represented at the Meeting?
Having determined that the May 20 meeting met the elements of section 7114(a)(2)(A)--that is, that it was a 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 other personnel policy or practices or other general condition of employment--we must next determine whether the Union was given an opportunity to be represented at the meeting. In making this determination, we take this opportunity to review and clarify applicable principles in this area.
In Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74 (1981), the Authority established its original precedent on this issue. The Authority stated that "section 7114(a)(2)(A) requires that a union be given the opportunity' to be represented during formal discussions involving conditions of employment. This clearly contemplates prior notice to the (u)nion so that ... the (u)nion will have an opportunity to select representatives of its own choosing to be present." Id. at 76 (emphasis in original). See also Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371, 376 (1981) rev'd on other grounds 706 F.2d 1019 (9th Cir. 1983). Thus, the Authority's position at that time was that an agency must provide the union with sufficient prior notice to the formal discussion to allow the union to designate its own representative to attend the formal discussion.
Approximately a year after the Authority's Norfolk Naval Shipyard decision, the Sixth Circuit reversed an Authority decision dealing with the notice issue in a different context. United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center v. FLRA, 681 F.2d 466 (6th Cir. 1982), rev'g United States Air Force Logistics Command, Aerospace Guidance and Metrology Center, 4 FLRA 512 (1980). The Sixth Circuit ruled that a union's [ v29 p11 ] actual notice of an agency's anticipated changes in conditions of employment, by the attendance at a meeting of the steward who normally would have received notice of the change, constituted sufficient notice to the union of those changes, enabling the union to exercise its bargaining rights under the Statute. The Authority's decision in United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, 4 FLRA 512 had been cited by the Authority in the Norfolk Naval Shipyard case, discussed above.
Subsequently, in Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA 1054 (1985), the Authority concluded that "actual representation by an exclusive representative at a formal discussion is sufficient to demonstrate compliance with the requirement of section 7114(a)(2)(A) of the Statute that such an exclusive representative 'be given an opportunity to be represented.'" Id. at 1056 (footnote omitted). The Authority stated that "to the extent that the Norfolk Naval Shipyard and IRS, Fresno cases stand for the proposition that, to be adequate, the required prior notice of a formal discussion must be specifically given to the union qua union, they are hereby rejected." VA Muskogee at 1056 n.4. Referencing the court's decision in United States Air Force v. FLRA, the Authority noted in VA Muskogee that the union was represented at the formal discussion by three union officials, although they had not been notified in their capacities as union officials but rather as employees. Id. at 1056. Thus, the Authority found that the union had the opportunity to be represented at the formal discussion, and therefore no unfair labor practice had been committed.
We have reexamined this area of Authority precedent. In our view, VA Muskogee does not effectuate the intent of section 7114(a)(2)(A) of the Statute. That section is intended to allow the union the right to designate its own representative to attend a formal discussion. This right is of considerable practical importance to the union. For example, the union may decide to choose a representative who would be unaffected by the matters to be discussed at the meeting or one who is outside the direct supervisory chain of those conducting the meeting. See Department of the Air Force, 63rd Civil Engineers Squadron, Norton Air Force Base. California, 22 FLRA No. 91 (1986) (a union's interest could not adequately be represented at a formal discussion concerning a grievance where the grievant was also the local union representative in attendance at the formal discussion) [ v29 p12 ] and Internal Revenue Service, Washington D. C. and Fresno Service Center, Fresno California, 16 FLRA 98 (1984) (concerning the entitlement of a union to be represented by a representative of its own choosing at a grievance meeting).
Prior notice to the union is necessary to enable the union to choose its own representative. Otherwise, if "actual representation" is sufficient to meet the requirement of section 7114(a)(2)(A), the choice of a union representative might be made not by the union, but rather by chance or by the agency. We believe that the policy set forth in Norfolk Naval Shipyard and IRS, Fresno better reflects the intent of section 7114(a)(2)(A) of the Statute. Accordingly, we will no longer follow the "actual representation" principle of VA Muskogee.
Of course, as indicated by the court in United States Air Force v. FLRA, 681 F.2d 466, 468 (6th Cir. 982), a requirement that a union receive formal prior notice where the record reflects that the union has received actual notice would interject needless formality into the process. 4 Therefore, where the record does not establish that a union was given formal prior notice of a formal discussion, we will examine the record to determine if a union representative received actual notice and if so, whether that receipt was sufficient to establish that the union had an opportunity to be represented at the formal discussion within the meaning of section 7114(a)(2)(A), including the opportunity to designate a representative of its own choosing.
In the circumstances of this case, Timblin, the bargaining unit employee who received notice and attended the meeting, was not a designated representative of the Union. Further, the Respondent was aware that Solorio, not Timblin, represented the Union in the grievance and arbitration hearings. Moreover, Timblin was the bargaining unit employee involved in the formal discussion, so it is not at all clear that he could have adequately represented the Union's interests. See Norton Air Force Base. Therefore, we [ v29 p13 ] conclude that the Respondent did not provide the Union with an opportunity to be represented at the May 20 formal discussion.