37:0747(60)CA - - VA, Washington, DC, VA Medical Center, Brockton Division, Brockton, MA and NAGE Local R1-25, SEIU - - 1990 FLRAdec CA - - v37 p747

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[ v37 p747 ]
37:0747(60)CA
The decision of the Authority follows:


37 FLRA No. 60

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION, WASHINGTON, D.C.

AND

VA MEDICAL CENTER, BROCKTON DIVISION

BROCKTON, MASSACHUSETTS

(Respondent)(*)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-25, SEIU, AFL-CIO

(Charging Party)

1-CA-80185

DECISION AND ORDER

September 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.

The Judge found that the Respondent did not violate section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) because he found that three meetings held by the Respondent with bargaining unit employees were not formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. The Judge recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. We adopt the Judge's findings and conclusions only to the extent consistent with this decision.

In the absence of exceptions, we adopt the Judge's conclusion that one meeting, an impromptu meeting between an employee and her immediate supervisor, was not a formal discussion and we adopt his recommendation that the complaint be dismissed as to that meeting. However, contrary to the Judge, we find that two of the meetings held by the Respondent were formal discussions within the meaning of the Statute and the Respondent violated section 7116(a)(1) and (8) of the Statute by not providing the Union an opportunity to be represented at the discussions. Accordingly, we will issue an appropriate remedial order.

II. Facts

On November 30, 1987, the Respondent notified the Union that it proposed to change the work schedules of certain bargaining unit employees in the Respondent's Dietetic Service. Changes were proposed in the hours of work for the WG-4 Ingredient Control Room (ICR) employees, the days off for the WG-5 Cooks, and the hours of work and the days off for the WG-8 Cooks. The parties met on December 15 and bargained over the proposed changes. By memorandum of December 17, the Respondent notified the Union that the changes, as proposed, would be implemented on January 3, 1988. The memorandum stated that "[t]he choice of shift, as in the past, will be based on a seniority basis." Judge's Decision at 4.

On January 5, 1988, without notice to the Union, the Chief of Food Processing and Service held a meeting in her office with the WG-8 Cooks. The cooks had been told of the meeting and its purpose by a Food Processing supervisor. The cooks were expected to attend, and all cooks who were on duty did attend. The Chief distributed copies of the current and the new schedules to the cooks and ascertained that they were familiar with the schedules. Each employee, in order of seniority, chose a new shift. The new shifts were scheduled to begin in February.

On January 20, 1988, a WG-5 Cook entered her supervisor's office to ask a routine question. The supervisor showed the cook a new schedule. The schedule was to go into effect for WG-5 Cooks in March and showed that the days off that accompanied the cooks' shifts had been changed. The supervisor asked the cook, who was the most senior WG-5 Cook, if she wished to select her new shift and days off. Stating that she wanted to keep her same days off, the cook declined to make a selection and left the office.

On February 3, 1988, without notice to the Union and in the same manner as the January 5 meeting, the Chief of Food Processing and Service held a meeting in her office with the WG-5 Cooks, including the cook involved in the January 20 meeting. The cooks had been told of the meeting by the same supervisor involved in the January 5 meeting and all of the cooks attended. The Chief distributed copies of the current and the new schedules to the cooks. The most senior cook made her shift selection, and the other cooks then made their selections.

III. Administrative Law Judge's Decision

The Judge noted that an exclusive representative is entitled under section 7114(a)(2)(A) of the Statute to be represented at any formal discussion between the agency and bargaining unit employees. The Judge also noted the Authority's holding, in U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584 (1987) (Ray Brook), that in order for a union's right under section 7114(a)(2)(A) of the Statute to attach, all the elements of that section must be found to exist. That is: (1) there must be a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Furthermore, the Judge noted that the Authority had held that, in examining each of these elements, it will be guided by the intent and purpose of section 7114(a)(2)(A)--to provide the union with an opportunity to safeguard its interests and the interests of bargaining unit employees--viewed in the context of the union's full range of responsibilities under the Statute.

Applying these elements to the three meetings in question, the Judge found that the meetings were not formal discussions within the meaning of the Statute. As to the January 5 and February 3 meetings, the Judge acknowledged that some of the indicia of formality were present. He noted that each meeting was called in advance and had an agenda, and that the meetings were called by and held in the office of the Chief of Food Processing and Service, the employees' second-level supervisor, in the presence of the employees' immediate supervisor.

However, the Judge also found, as indicia of informality, that the notice of the meetings was oral; the sole purpose of the meetings was for the employees to select their shifts; and the only record made at the meetings was the noting of each employee's shift selection. As to the January 5 meeting, the Judge noted that there was no discussion, the employees were all familiar with the new schedule, and the meeting was short. The Judge found that "[w]hile each cook was expected to attend, the only mandatory element was that each must make . . . a selection[.]" Judge's Decision at 7. As to the February 3 meeting, the Judge noted that the only discussion was a comment by one employee that she did not agree with the days off being offered, and that employees were informed that the trading of days off might be accommodated for specific needs, but not on a permanent basis.

The Judge found that at the time the January 5 and February 3 meetings were held, the changes in shift schedules had already been accomplished and the Union had been informed that the new schedules were to be implemented. There was no discussion with employees at the meetings about the changes in the schedules. All that was done at the meetings was the "ministerial act of the employees selecting their shifts in the order of their seniority." Id. at 8. The Judge found that this was done in the same manner as in the past.

The Judge concluded that "guided by the intent and purpose of [section 7114(a)(2)(A)], namely, to provide the Union with an opportunity to safeguard its interest and the interests of employees in the bargaining unit . . . the meetings of January 5 and February 3, 1988, were not formal discussions within the meaning of . . . the Statute." Id. at 8-9.

As to the January 20, 1988 meeting between the WG-5 Cook and her supervisor, the Judge found that the meeting was very brief and was not planned. He also found that there had been no notice to the Union, no agenda, and no notes were taken. The Judge concluded that "[u]nder the circumstances, this impromptu meeting was not a 'formal discussion' within the meaning of . . . the Statute. Nor would the interests of the unit have been furthered by the Union's presence at this meeting." Id. at 9 (citations omitted).

Having found that none of the meetings was a formal discussion, the Judge recommended dismissal of the complaint in its entirety. Id.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel contends that the Judge erred by: (1) concluding that the interests of the bargaining unit would not have been furthered by the presence of the Union at the meetings held on January 5 and February 3, 1988; (2) concluding that the January 5 and February 3 meetings were not formal discussions within the meaning of section 7114(a)(2)(A) of the Statute; (3) recommending that the complaint be dismissed as to those meetings; and (4) failing to conclude that the Respondent violated the Statute by conducting formal discussions on January 5 and February 3 without affording the Union an opportunity to be represented. Exceptions at 1-2. The General Counsel specifically did not except to the Judge's conclusion that the January 20 meeting was not a formal discussion within the meaning of the Statute. Id. at 2.

The General Counsel argues that the Judge's conclusion that the January 5 and February 3 meetings were not formal discussions is inconsistent with Authority precedent because the indicia required by section 7114(a)(2)(A) of the Statute for a formal discussion were present. The General Counsel contends that the Judge's findings as to what constitutes a "discussion" are inconsistent with Authority precedent. The General Counsel states that "the Judge noted that at the January 5 meeting of the WG-8 cooks, 'there was no discussion,'" and although "there was evidence of an exchange at the February 3 meeting of the WG-5 cooks, the Judge concluded that it didn't add up to a real 'discussion.'" Id. at 3. The General Counsel asserts that "the Authority has construed the term 'discussion' in [section] 7114(a)(2)(A) as synonymous with 'meeting'; evidence of an actual exchange between management and employees is not required to satisfy this criterion." Id.

The General Counsel states that the Judge "implied that the employees' attendance was not required [at the meetings by his finding that] 'while each cook present was expected to attend, the only mandatory element was that each must make his, or her, selection in order of seniority.'" Id. at 4 (emphasis in original). The General Counsel contends that the evidence shows "that the employees' attendance was mandatory," in view of the testimony of the immediate supervisor that he relayed word of the meetings to the employees, "telling them 'they would be there,'" and admitting that "the cooks really had no choice whether to attend the meetings." Id. (emphasis in original).

According to the General Counsel, it is undisputed that the meetings were between one or more representatives of the agency and one or more employees in the unit. The General Counsel contends that the meetings concerned general conditions of employment because all the cooks were involved in making shift selections and the choice of each cook affected in turn the choices available to the remaining cooks. Id. at 5.

The General Counsel contends that the Judge's consideration of the extent of the changes in work schedules and the importance of the changes to the employees was inappropriate and his reliance on them was in error because these considerations are not germane to the issue. Id. at 6. The General Counsel states that the Statute requires that whenever management holds a formal discussion, the union must be given an opportunity to safeguard its interests and the employees' interests. The General Counsel argues that, contrary to the Judge's finding, the interests of the Union and the employees were important. The General Counsel asserts that, in this case, the employees' interest was the right to make an informed choice of shifts, freely and without hindrance or coercion, and the Union's interest was to ensure that the Respondent followed the established procedures for shift selection. Id. at 6-7.

The General Counsel states that, although the Judge did not decide whether the Union had been given an opportunity to be represented at the January 5 and February 3 meetings, the record shows that such opportunity was not given and the Respondent concedes that the Union was not given notice of the meetings. Id. at 7-8 and General Counsel's Brief to the Judge at 17-19.

The General Counsel argues, in sum, that the record demonstrates that the Respondent conducted formal discussions on January 5 and February 3, 1988, without giving the Union an opportunity to be represented at the meetings as required by the Statute. The General Counsel requests the Authority to find that the Respondent violated the Statute and to issue an appropriate remedial order. Exceptions at 8.

B. Respondent's Opposition

The Respondent argues that the General Counsel's theory would lead to a conclusion that every meeting between an employee and management is a formal discussion requiring union involvement, and that such a conclusion is contrary to the intent of the Statute. Respondent's Brief at 2. The Respondent states that the Judge considered the relevant factors in determining what is a formal discussion and found that the meetings were not formal and that the interests of the Union would not have been furthered by its presence at the meetings. Accordingly, the Respondent urges that the Judge's findings not be disturbed. Id. at 3-4.

V. Analysis and Conclusions

We find that the January 5 and February 3 meetings were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute.

As the Judge correctly noted, in order to find that a union has a right to representation under section 7114(a)(2)(A) of the Statute, it must be shown that the following elements exist: (1) there must be a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Ray Brook, 29 FLRA at 588-89.

As to the third element, it is undisputed, and we find, that the January 5 and February 3 meetings were between one or more representatives of the Agency and one or more unit employees.

As to the fourth element, the Judge implies but does not expressly find that the meetings concerned general conditions of employment. We find that the subject matter of the meetings, the employees' working hours and days off, concerned general conditions of employment. See, for example, General Services Administration, Region 8, Denver, Colorado, 19 FLRA 20 (1985) (compressed work schedule); and Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, California, 15 FLRA 529 (1984) (Kelly AFB) (change in workweek).

As to the first element, we disagree with the Judge that the absence of actual discussion or dialogue precludes a finding that a "discussion" within the meaning of section 7114(a)(2)(A) of the Statute took place. The term "discussion" in the Statute is synonymous with "meeting," and no actual discussion or dialogue need occur for the meeting to constitute a discussion within the meaning of the Statute. See, for example, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 598 (1987). We find that the meetings of January 5 and February 3 constituted "discussions" within the meaning of section 7114(a)(2)(A) of the Statute.

Finally, as to the second element, we find, contrary to the Judge, that the meetings were "formal." Each meeting was called in advance and had an agenda, and the meetings were called by and held in the office of the Chief of Food Processing and Service in the presence of the employees' immediate supervisor. The purpose of the meetings was to allow the employees to select their shifts. In our view, the Union should have had the opportunity to safeguard its interests and the interests of bargaining unit employees at these meetings. It was in the interest of the employees to be able to make an informed choice of shifts, freely and without hindrance or coercion, and the Union's presence would have helped to ensure that the Respondent followed the established procedures for shift selection. Accordingly, we believe that the interests of the employees as well as the Union would have been furthered if the Union had been given the opportunity to be represented at the meetings. The record shows that the Respondent conceded that the Union was not given notice of the meetings, and we find that the Union was not given the opportunity to be represented at the meetings, as required by the Statute.

In sum, we find that the January 5 and February 3 meetings met all of the elements needed to establish a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. Accordingly, we conclude that the meetings held on January 5 and February 3, l988, were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. By not giving the Union the opportunity to be represented at those meetings, the Respondent thereby violated section 7116(a)(1) and (8) of the Statute.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the VA Medical Center, Brockton Division, Brockton, Massachusetts shall:

1. Cease and desist from:

(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the National Association of Government Employees, Local R1-25, SEIU, AFL-CIO (NAGE) concerning any grievance or any personnel policy or practices or other general condition of employment, including the selection of new shifts or days off, without affording NAGE prior notice of and the opportunity to be represented at the formal discussions.

(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 Federal Service Labor-Management Relations Statute:

(a) Post at its Brockton, Massachusetts facility where employees in the bargaining unit are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Medical Center, 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 ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The allegations of the complaint as to the January 20, 1988 meeting are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE WILL NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT conduct formal discussions with our employees in the bargaining unit exclusively represented by the National Association of Government Employees, Local R1-25, SEIU, AFL-CIO (NAGE) concerning any grievance or any personnel policy or practices or other general condition of employment, including the selection of new shifts or days off, without affording NAGE prior notice of and the opportunity to be represented at the formal discussions.

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.

___________________________
(Activity)

Dated:__________ By:_____________________________

(Signature) (Title)

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 any of its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.